District Court, Vernal Department The Honorable Edwin T.
Peterson The Honorable Clark A. McClellan No. 151800761
Herschel Bullen, Attorney for Appellant
D. Reyes and Marian Decker, Attorneys for Appellee
Gregory K. Orme authored this Opinion, in which Judges Ryan
M. Harris and Diana Hagen concurred.
Chad Michael Hatch appeals his convictions for one count of
aggravated sexual abuse of a child, two counts of sodomy on a
child, and one count of attempted aggravated sexual abuse of
a child, all first degree felonies. He argues that various
instances of ineffective assistance of counsel and trial
court error entitle him to reversal and a new trial. We
In 2007, when Hatch's stepdaughter (Victim) was
approximately seven years old, Hatch drove her out of town
and pulled over in a deserted area. Victim testified that
Hatch claimed he "just wanted to spend time with
[her]" and "show [her] something that his friend
and daughter did." Hatch then told Victim to "take
off [her] clothes," which she did, and he proceeded to
"lick and touch [Victim's] vagina." This
lasted for "more than a minute" until Victim's
mother (Mother) texted Hatch that dinner was ready. Hatch
told Victim to get dressed and "not to tell anyone"
about what had happened, and they returned home.
A while later, when Victim was "[a]round the same
age" and while Hatch was home alone with Victim, he
asked her "to return the favor." Hatch then
"pulled down his pants" and told Victim to
"lick his penis," which she did "[b]ecause
[she] didn't want him to get mad."
On another occasion, when Victim was still around the same
age, Hatch told Victim's brother (Brother) "to go
clean up dog poop" outside, and as Brother left, Hatch
locked the door behind him. Hatch then took Victim to his
bedroom, put on a pornographic movie showing "a naked
woman and man . . . have sex" and told Victim to get
undressed, which she did. Hatch then laid on the bed next to
Victim until Brother, who had finished his poop-scooping
task, began knocking loudly on the door. Hearing Brother,
Hatch stopped the pornographic movie and told Victim "to
While cleaning up after the dog was "one of the chores
that [Brother] had to do," he specifically remembered
this occasion and that it happened sometime "between
2007 [and] 2008." He remembered it so clearly because,
when he had finished, he went "to open the door, and the
door was locked," which was not typical. He
"knocked on the door and nobody came, so [he] started
slamming on the door and . . . screaming." As he
"was a little kid," it "frustrated" him.
He "started crying because [he] didn't know what to
do." After "knocking and banging on the door,"
"[i]t took a while" until Hatch let Brother back
into the house.
Victim also testified that a few years later, when she was
around 11 or 12 years old, she was alone with Hatch in his
bedroom, and Hatch showed her a shoebox full of pornographic
magazines. While they were looking at the magazines, Hatch
told Victim that she "could go in the bathroom and
pleasure [her]self," which she did not do. Mother, who
later learned of this incident, confirmed that it occurred
sometime during the "warmer" months of 2011.
When Victim was approximately thirteen years old, she wrote
about the abuse by Hatch in her journal and later shared the
entries with Brother and Mother, at which point the police
were called. Victim had told Mother about the incidents
earlier, but Mother "didn't do anything about it
because [she] was scared, [she] didn't know what to do,
and [she] honestly had not believed [Victim] at the
Following a police investigation, the State charged Hatch
with aggravated sexual abuse of a child (count 1), sodomy
upon a child (count 2), another act of sodomy upon a child
(count 3), and attempted aggravated sexual abuse of a child
(count 4)-all first degree felonies. The State also charged
Hatch with dealing in material harmful to a minor (count 5),
a third degree felony.
Claimed Absence From Trial
On the morning trial was to begin, a discussion was held in
the trial court's chambers with Hatch's trial counsel
and the prosecutor both present but with Hatch absent. During
the in-chambers discussion, the following exchange took
[Trial counsel]: Let me say one thing that I'm going to
do different today than I usually do. Usually when I do a
trial, when we come back with the . . . potential jurors, I
don't bring my client in. But I am going to this time,
and usually I don't like to do it for a strategic reason,
but last time we had a trial we all talked about some case
law that says that it's reversible error if you don't
bring the client in . . . .
[Trial court]: Oh. I am delighted to have your client here. .
[Trial counsel]: Well, the only reason I'm saying this is
because . . . I don't like to bring my client in, and I
have my own reasons for it, but because of my client's
personality and because of the case law, I am bringing him in
this time. Does that make sense?
[Trial court]: Absolutely. I'm all good with that. As a
matter of fact, I noted he wasn't here today and he had
an absolute right to be here during the entire proceeding.
counsel, the court, and the prosecutor then proceeded to
discuss prospective evidence, jury instructions, and proposed
voir dire questions. Following this discussion, the court
took a recess.
After the recess, the court reconvened the proceedings in the
courtroom. The jury pool was brought in, and the court
proceeded to administer an oath, asked preliminary voir dire
questions, and gave the jury pool opening instructions. While
the minutes of the day's trial, prepared by the court
clerk, indicate that Hatch was present, the trial transcript
itself contains no mention of Hatch for the first few minutes
of the proceedings in the courtroom. Eventually, however,
when the court asked the participants on each side to
introduce themselves, trial counsel introduced Hatch to the
prospective jurors, and the court greeted Hatch by saying,
"Hello, Mr. Hatch. Good morning." Prior to that
on-the-record introduction, the court had asked the members
of the jury pool to briefly introduce themselves and had
asked a few preliminary questions to determine whether the
panelists met the statutory qualifications to sit on a jury.
Following that on-the-record introduction, the court
proceeded with the remainder of the voir dire process. After
asking questions of the jury pool in the courtroom, the court
allowed individual questioning of prospective jurors in
chambers, but the record is clear that Hatch was present
during those in-chambers interviews.
By way of a pretrial motion in limine, trial counsel sought
to admit "false accusations [that Victim] has made
against [Brother] concerning sexual abuse."
Specifically, trial counsel argued, quoting State v.
Martin, 1999 UT 72, 984 P.2d 975, that nothing in rule
412 of the Utah Rules of Evidence "would exclude
evidence of an allege[d] rape victim's previous false
allegations of rape [because] [e]vidence of a false
accusation would be relevant to [Victim's]
credibility." See id. ¶ 16.
In a pretrial hearing, trial counsel alleged that Victim had
told Hatch's father (Grandfather) that Brother
"inappropriately touched" her, and she was
interviewed by the Division of Child and Family Services
(DCFS) in connection with this allegation but denied the
allegation. Trial counsel argued that the testimony should
"be admissible because it goes to the credibility of the
accuser" and although rule 412 generally prohibits
evidence of a victim's past sexual history, the rule does
not prohibit evidence of Victim's allegation and
recantation "because . . . it's a false allegation
[and] 412 doesn't cover that." Trial counsel also
argued that under rule 608(c) of the Utah Rules of Evidence,
"any evidence is admissible that shows bias, prejudice,
or motive." Trial counsel further alleged that Hatch
"was reported and charged because [Grandfather] had
turned [Brother] in" and, in response, Brother told the
police about Victim's journal entries detailing
Hatch's abuse of her. Trial counsel then asked for the
court's permission to call as witnesses Grandfather and
the DCFS worker who interviewed Victim about Victim's
claim of abuse by Brother and her denial of the allegation.
The court declined to rule on the motion at that time,
stating that it could not "rule on things that
haven't happened yet" and that all trial counsel had
produced was "speculative . . . evidence." The
court informed trial counsel that it could not foretell
"what will or will not be hearsay" but that they
could revisit the issue during trial, "outside the
presence of the jury."
During opening statements, trial counsel told the jury that
Victim had told Grandfather that Brother had sexually abused
her. The State objected, and at a sidebar conference, trial
counsel insisted that the court "ruled it could come
in." The court stated that it "did not" so
rule and that it had only "ruled that if [trial counsel]
could get that information in" under some rule, then it
could come in. The court continued:
I had not ruled whether or not [Grandfather] could testify as
to what a witness said, because it is hearsay, and I've
already [ruled] that [it is inadmissible hearsay] unless
there's an opportunity to present that evidence through
an exclusion to the hearsay rule. So, that is inappropriate
to present to the jury at this point in time. It's an out
of court statement, . . . and you were given the logs from
[DCFS] and it shows that [Victim] stated she had never made
those statements, and nobody else said she made the
statements, with the possible exception of [Grandfather].
That would make his testimony hearsay and inadmissible.
counsel then argued that it was admissible as a prior
inconsistent statement, but the court ruled that he could not
mention it in his opening statement, explaining, "If
there is an issue of prior inconsistent statement, I
certainly haven't heard it yet because I've got no
evidence in front of me. I have to hear the evidence."
While cross-examining Victim, trial counsel asked if she had
told Grandfather about Brother sexually abusing her. Victim
responded that she had not. But Victim did state that she
remembered going to the Children's Justice Center where a
DCFS worker interviewed her and asked if Brother had touched
her inappropriately. Trial counsel did not inquire further into
this incident. On redirect, Victim stated that she had
"never raised [an] allegation" against Brother.
At the close of the State's case, trial counsel argued
that Grandfather should be allowed to testify under rules 613
and 801 of the Utah Rules of Evidence. The ...