State v. Bair , 2012 UT App 106 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20090394‐CA
)
v. ) FILED
) (April 5, 2012)
Robert David Bair, )
) 2012 UT App 106Defendant and Appellant. )
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Second District, Farmington Department, 071702082
The Honorable Thomas L. Kay
Attorneys: Kenneth R. Brown and Ann M. Taliaferro, Salt Lake City, for Appellant
Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for
Appellee
‐‐‐‐‐
Before Judges Orme, Davis, and Christiansen.
DAVIS, Judge:
¶1 Robert David Bair appeals from a conviction and judgment of two counts of
aggravated sexual abuse of a child. We reverse Bair’s convictions for aggravated sexual
abuse of a child and direct entry of a conviction and judgment of two counts of sexual
abuse of a child.
BACKGROUND1
¶2 In August 1996, Bair separated from his wife (Mother). In a handwritten letter
that he left on Mother’s car (the separation letter), Bair explained that he had engaged in
extramarital sex; that he was “addicted to sex”; specifically the “touchy/feely‐play
around part of sex”; and that he had a “clearly addictive pattern,” amounting to an
“emotional disorder” that he “need[ed] help for.” The couple eventually divorced and
Mother retained custody of their three children, an eight‐year‐old son (Son), a seven‐
year‐old daughter (Daughter), and a four‐year‐old daughter (Sister). From February
1997 until December 1998, Bair lived in an apartment on his own in Layton, Utah, where
his children would visit him every other weekend. During these visits, Bair would
often tickle and play with his children in his bedroom. However, on three to five
occasions during the time in which Bair lived in Layton, the horseplay progressed to
abuse. On each occasion, Son and Sister would leave the room to engage in other
activities and Bair would tell Daughter to stay so he could “‘love [her] up.’” He used
that phrase each time and did not use it in any other context with Daughter. “Loving
her up” consisted of thirty‐ to forty‐five‐minute sessions during which Bair would kiss
Daughter on the lips, insert his tongue into her mouth, and put his hand under her
clothing to rub her nipples, vaginal area, clitoris, and buttocks. On one occasion, Bair
inserted his finger into Daughter’s vagina. During these sessions, Bair would “tell
[Daughter] that [she] was pretty and that [Sister] would always be jealous of [her]
because [she] would always be prettier than her,” and he “would tell [Daughter] that
[she] was his best friend and ask[ her] if [she] liked it.” On the last episode of abuse,
Bair “slowed down” what he was doing, “stopped[,] . . . sat up on the bed,” told
Daughter “to not tell anybody because it was [their] little secret” and “it was wrong,”
and then left the room.
¶3 At one point after Daughter was abused and before she reported the abuse,
Mother had a disturbing dream that prompted her to ask Daughter if Bair “had ever
touched [her] inappropriately.” Daughter responded in the negative, explaining at trial
that she “should have told [Mother] then” but did not because she did not want to hurt
1. “On appeal, we review the record facts in a light most favorable to the jury’s verdict
and recite the facts accordingly. We present conflicting evidence only as necessary to
understand issues raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346(citation and internal quotation marks omitted).
20090394‐CA 2
Bair. Daughter did not disclose the abuse to anyone until she was in sixth grade, when
she told Sister. Sister “got really upset” and asked Daughter not to tell Mother.
Daughter refrained from telling Mother until July 2007, when Daughter felt like she
“couldn’t deal with it anymore” and “needed help.” Talking with people in an online
abuse forum where individuals shared their personal experiences with abuse
encouraged Daughter to report the abuse. Daughter also reported the abuse out of
concern for Sister and a stepsister who was living with Bair at the time of reporting.
¶4 Daughter and Sister were each interviewed at the Children’s Justice Center
(CJC). One of the investigators who interviewed them (the Detective) also interviewed
Bair. Subsequently, an Information was filed charging Bair with two counts of
aggravated sexual abuse of a child. Bair’s trial counsel conditionally waived the
preliminary hearing, and Bair was bound over on the charges as they were set forth in
the Information.2
¶5 A jury trial followed. Daughter testified at trial and mentioned that she had gone
through counseling in the time between her initial reporting and the trial and that the
counseling allowed her to “get some more memories back.” Daughter testified that
during the therapy sessions she would “lay down on [a] couch and [the therapist]
would just turn the lights down and . . . would just talk to [her] about the memories that
[she] already had,” prompting her to think “back as hard as [she] could.” Mother’s
testimony also indicated that Daughter had attempted hypnosis to “see if there were
any other issues that hadn’t already been discussed” but that it was unsuccessful.
¶6 Over Bair’s objections on relevance and prejudice grounds, the State also
introduced portions of the separation letter. The State used the letter as evidence of
Bair’s intent and to rebut Bair’s defense that Daughter had fabricated the allegations.
The State argued that the statements in the letter regarding Bair’s addiction to the
“touchy/feely” aspects of sex are consistent with Daughter’s testimony describing the
abuse as involving acts that comprised the “touchy/feely” aspects of sex. The State also
asserted that because Daughter had no knowledge of Bair’s letter before reporting her
abuse, Bair’s defense that Daughter fabricated her allegations is not believable in light
of the otherwise inexplicable consistencies between the letter and Daughter’s
2. The Information was later amended to narrow the time frame of the alleged abuse to
coincide with the time frame that Bair lived in the Layton apartment.
20090394‐CA 3
allegations. Additionally, the State used the letter to demonstrate that Bair’s intent in
abusing Daughter was to satisfy his addiction to the “touchy/feely” aspects of sex that
he admittedly was having difficulty controlling not long before Daughter was abused.
¶7 The Detective also testified at trial. He testified that during his interview with
Bair, Bair described Daughter as taking on a mature, motherly role after the divorce and
stated that he felt like he was “able to talk to her.” The Detective testified that Bair also
“talked about cuddling with her[, l]oving her up.” He testified that he confronted Bair
with the phrase “loving up,” explaining that Daughter used the same term to describe
the abuse. According to the Detective’s testimony, Bair explained that he used the
phrase to mean “hugging and kissing, teasing, [and] running around.” The Detective
also testified that when he asked Bair if he had sexually abused Daughter, Bair stated
that he “‘didn’t have an interest in children’” and did not “‘have much of an interest
with [Daughter] that way,’” and that he “hesitate[d]” before stating, “‘I mean, no
interest in children.’” The Detective testified that Bair’s response to his follow‐up
question for clarification was, “‘I have no interest in children.’” The Detective further
testified that Bair tried to deflect the interview questions and that Bair’s denials were
“flat” and “emotionless.” Flat and emotionless responses, the Detective testified, were
atypical. Additionally, the Detective testified that “[b]ased on the probably hundreds of
[abuse] cases [he has] investigated, it’s not uncommon for a victim not to disclose
initially.” He explained that this can be the case even when a victim has been given
several opportunities to disclose and that “it’s a very common thing in sexual abuse of
children to not make an immediate or even a close to immediate disclosure, and it
certainly is not uncommon to be given the opportunity to disclose and not disclose.”
¶8 Bair was ultimately found guilty of both counts of aggravated sexual abuse of a
child, a first degree felony, and sentenced to two concurrent prison terms of five years
to life. Bair moved this court for a temporary remand under rule 23B of the Utah Rules
of Appellate Procedure, raising several arguments as to why his trial counsel was
ineffective. The rule 23B motion was granted in part on four specific issues:
(1) whether [trial counsel] was ineffective for failing to call
[three specific individuals as witnesses]; (2) whether [trial
counsel] was ineffective for failing to call an expert witness
to rebut the argument that [Bair]’s admission that he had a
sex addiction established or supported the requisite intent to
sexually abuse a child; (3) whether [trial counsel] was
20090394‐CA 4
ineffective for failing to argue that Bair did not qualify as a
‘natural parent’ under the aggravated abuse of a child
statute; and (4) whether [trial counsel] was ineffective for
failing to argue that [Daughter]’s testimony was
inadmissible because it had been hypnotically enhanced.
The trial court ruled on those four issues, concluding that trial counsel did not perform
deficiently and that, in any event, any deficient performance was not prejudicial.
ISSUES AND STANDARDS OF REVIEW
¶9 As a preliminary matter, Bair asserts that where his arguments are not preserved,
we should nonetheless review his claims, applying the doctrines of plain error,
ineffective assistance of counsel, and exceptional circumstances.3 Where applicable, we
apply these doctrines to Bair’s arguments and address our application of them in the
standards of review outlined below for each issue presented.
¶10 Bair presents several arguments on appeal. First, Bair argues that a new trial is
warranted because portions of the separation letter were erroneously admitted into
evidence and because the State’s arguments surrounding the letter amounted to
prosecutorial misconduct. “We review a trial court’s decision to admit evidence under
rule 404(b) [of the Utah Rules of Evidence] for an abuse of discretion.” State v. Ferguson,
2011 UT App 77, ¶ 10, 250 P.3d 89, cert. denied, 262 P.3d 1187 (Utah 2011). Additionally,
“[i]n determining whether a given statement constitutes prosecutorial misconduct, the
3. Bair also lists the doctrine of manifest injustice as an exception to preservation.
Under the facts and circumstances of this case, we treat Bair’s assertions of plain error
and manifest injustice as one and the same because, as “in most circumstances, the term
‘manifest injustice’ is synonymous with the ‘plain error’ standard expressly provided in
Utah Rule of Evidence 103(d),” State v. Verde, 770 P.2d 116, 121‐22 (Utah 1989). Cf. id. at
121 (explaining that “manifest injustice” also refers to the standard “applicable to [jury]
instruction[] errors through rule 19(c) of the Utah Rules of Criminal Procedure”). See
generally Utah R. Evid. 103(d) (“Nothing in this rule precludes taking notice of plain
errors affecting substantial rights although they were not brought to the attention of the
court.”).
20090394‐CA 5
statement must be viewed in light of the totality of the evidence presented at trial.”
State v. Longshaw, 961 P.2d 925, 927 (Utah Ct. App. 1998) (internal quotation marks
omitted). “[B]ecause the trial court is in the best position to determine the impact of a
statement upon the proceedings, its rulings . . . will not be overturned absent an abuse
of discretion.” Id. (omission in original) (internal quotation marks omitted).
¶11 Second, Bair asserts that the portions of Daughter’s testimony that were based on
memories recovered after undergoing “therapeutic techniques” constitute “surprise and
unfounded trial testimony” that should have been excluded from trial. Because this
issue was not preserved, we consider Bair’s claim for plain error and ineffective
assistance of trial counsel. Bair also argues plain error in his third argument, asserting
that the trial court plainly erred by admitting the Detective’s testimony because his
testimony constituted “unfounded expert opinion.” Likewise, in his fourth argument,
Bair challenges the trial court’s rule 23B findings and its conclusion that trial counsel
was not ineffective. Fifth, Bair requests a new trial, alleging that he was “improperly
charged, bound over, and tried upon an ex post facto statute” and that, therefore, the
aggravating factor of occupying a “‘position of special trust’ as a ‘natural parent’”
should not have applied to him. (Emphasis omitted.) Because this issue was not
preserved, Bair asks us to view this argument through a plain error lens as well.
¶12 To prevail on a claim of plain error, the appellant, in addition to showing error,
“must show that the error should have been obvious to the trial court and that the error
is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable
outcome for the appellant, or phrased differently, our confidence in the verdict is
undermined.” State v. Boyd, 2001 UT 30, ¶ 21, 25 P.3d 985 (internal quotation marks
omitted). Additionally, because the trial court ruled on this ineffectiveness argument in
the rule 23B hearing, “the issues raised present mixed questions of law and fact.” State
v. Snyder, 860 P.2d 351, 354 (Utah Ct. App. 1993) (citing Strickland v. Washington, 466 U.S.
668, 698 (1984)). “In ruling on an ineffective assistance claim following a Rule 23B
hearing, we defer to the trial court’s findings of fact, but review its legal conclusions for
correctness.” State v. Bredehoft, 966 P.2d 285, 289 (Utah Ct. App. 1998) (internal
quotation marks omitted). Similarly, when an “ineffective assistance claim is first raised
on direct appeal, this court can . . . determine that the defendant was denied effective
assistance of counsel [only] if it can do so as a matter of law.” Snyder, 860 P.2d at 354.
¶13 Last, Bair claims that the doctrine of cumulative error applies. “Under the
cumulative error doctrine, we will reverse only if the cumulative effect of . . . several
20090394‐CA 6
errors undermines our confidence . . . that a fair trial was had.” State v. Dunn, 850 P.2d
1201, 1229 (Utah 1993) (second omission in original) (internal quotation marks omitted).
“In assessing a claim of cumulative error, we consider all the identified errors, as well as
any errors we assume may have occurred.” Id.ANALYSIS
I. The Separation Letter
¶14 Bair raises several challenges to the admission of the separation letter. First, he
argues that rule 404(b) of the Utah Rules of Evidence prohibited admission of the
admitted portions of the letter. Second, he argues that the State’s argument regarding
the letter needed to be introduced through expert testimony and that because the State
did not have an expert, the State’s argument was inadmissible. Third, Bair asserts that
the manner in which the State used the letter amounted to prosecutorial misconduct.
We review each claim in turn.
A. Admissibility of the Separation Letter
¶15 The portions of the separation letter that were admitted state,
I was very good for a period of time, but eventually
my problems caught up with me, and I slipped back into old
ways.
I am addicted to sex itself, not to the intercourse. I
rarely have had intercourse. I am addicted to the
touchy/feely‐play around part of sex.
I have spoken with a psychologist at the McKay‐Dee
Behavioral Medicine Center. He told me that I have a clearly
addictive pattern. This is an emotional disorder, and he said
it was pretty much similar to what those with homosexual
tendencies go through. I asked about treatment and cure.
He said that the cure rate is about 50%. Not very good
percentage.
I have not indulged in any sexual activity for many
months, but I have strong emotions about it. I know that I
20090394‐CA 7
can’t do this on my own, and I’m pretty sure that I need
help.
The trial court permitted these portions of the separation letter to be admitted,
determining that these excerpts “show intent, knowledge, or absence of mistake or
accident pursuant to Rule 404(b) of the Utah Rules of Evidence” and also concluded
“that the probative value of these statements is not substantially outweighed by the
danger of unfair prejudice pursuant to Rule 403 of the Utah Rules of Evidence.” Bair
challenges this determination, arguing that the separation letter “amounted to
inadmissible propensity evidence in disguise,” that the letter was irrelevant “because
[it] truly had nothing to do with [sex with] children,” and that the probative value of the
letter was “substantially outweighed by unfair prejudice or confusion.” We disagree
and determine that the trial court did not abuse its discretion in admitting the letter.
¶16 “A three‐part analysis is applied to determine whether evidence is admissible
under rule 404(b).” State v. Burke, 2011 UT App 168, ¶ 27, 256 P.3d 1102, cert. denied, 263
P.3d 390 (Utah 2011). The first step is to “determine whether the evidence is admissible
for a proper, noncharacter purpose under rule 404(b).” Id. Next, the evidence must be
deemed “relevant under rules 401 and 402.” Id. Last, “the probative value of the
evidence is” weighed against “the danger of unfair prejudice under rule 403.” Id.“[W]e review a trial court’s decision to admit evidence under rule 404(b) . . . under an
abuse of discretion standard[, and w]e review the record to determine whether the
admission of other bad acts evidence was scrupulously examined by the trial judge in
the proper exercise of that discretion.” State v. Mead, 2001 UT 58, ¶ 61, 27 P.3d 1115(alteration and omission in original) (internal quotation marks omitted).
1. Proper Non‐Character Purpose Under Rule 404(b)
¶17 Rule 404(b) of the Utah Rules of Evidence prohibits admission of evidence of
“other crimes, wrongs, or acts . . . to prove the character of a person in order to show
action in conformity therewith.” Utah R. Evid. 404(b). However, the rule permits
admission of bad acts evidence for non‐character purposes, such as proving intent. See
id. Additionally, “[a]lthough this rule is exclusionary with respect to other crimes [or
bad acts] evidence offered only to show the defendant’s propensity to commit crime, it
is an inclusionary rule with regard to other crimes [or bad acts] evidence which is
offered for a proper, noncharacter purpose.” State v. Decorso, 1999 UT 57, ¶ 24, 993 P.2d
837. The parties do not address, and we therefore do not decide, whether the separation
20090394‐CA 8
letter actually amounts to bad acts evidence; we conduct our analysis assuming,
without deciding, that it does.4
¶18 In a hearing on a motion in limine held months before trial, the State argued that
the separation letter would be used to satisfy the specific intent element of the charges.
See generally Utah Code Ann. § 76‐5‐404.1(2) (2008)5 (establishing that the intent element
of sexual abuse of a child and aggravated sexual abuse of a child is the “intent to cause
substantial emotional or bodily pain to any person or . . . the intent to arouse or gratify
the sexual desire of any person regardless of the sex of any participant”). According to
the State, the letter directly proves Bair’s specific intent because Bair admits in the letter
that he is addicted to the “touchy/feely” aspects of sex, and the abuse Daughter
reported coincides with this admitted addiction to “touchy/feely” acts, thereby
demonstrating that Bair abused Daughter to “gratify” his sex addiction.
¶19 Bair argues that the State’s intent argument is “propensity evidence in disguise”
and that the State is essentially arguing an “addiction‐equals‐molestation” theory. We
disagree with this characterization of the State’s argument. As the State explained, its
“theory was not that Bair’s addiction must have driven him to abuse [Daughter], but
rather that his admitted addiction demonstrated his intent in touching [Daughter].”
Additionally, even if admission of the letter prompted the jury to infer Bair acted in
conformity with his addiction, rule 404(b) permits admission of prior acts evidence so
long as the sole purpose is not to prove that a defendant acted in conformity with a
character trait. See Huddleston v. United States, 485 U.S. 681, 687 (1988) (“Rule 404(b) . . .
protects against the introduction of extrinsic act evidence when that evidence is offered
solely to prove character.” (emphasis added)); Decorso, 1999 UT 57, ¶ 21 (“[I]f the court
determines that the evidence is being offered only to show the defendant’s propensity to
commit crime, then it is inadmissible and must be excluded at that point.” (emphasis
added)).
4. The parties both argue that the letter is bad acts evidence that needs to be analyzed
under rule 404(b), as well as rules 401, 402, and 403. We apply the analysis the parties
urge without deciding whether the separation letter falls under rule 404(b) and
acknowledge that even if the letter does not constitute bad acts evidence, its admission
would still be guided by rules 401, 402, and 403.
5. Except where substantive amendments affect our analysis, see infra section V, we cite
the most recent version of the Utah Code.
20090394‐CA 9
¶20 The separation letter does provide evidence of Bair’s specific intent to arouse or
gratify his sexual desires, which is a proper, noncharacter purpose under rule 404(b), see
Burke, 2011 UT App 168, ¶ 30 (“Evidence is offered for a proper, noncharacter purpose
if it is offered to prove intent.”); cf. State v. Verde, 2010 UT App 30, ¶ 18, 227 P.3d 840(determining that even though the defendant did not put intent at issue, evidence of
intent was admissible to prove the specific intent element of the crime charged), cert.
granted, 238 P.3d 443 (Utah 2010). Therefore, the admission of the letter did not violate
rule 404(b).
2. Relevance Under Rules 401 and 402
¶21 Next, we determine whether the separation letter constitutes relevant evidence
because “[e]vidence which is not relevant is not admissible,” Utah R. Evid. 402. Rule
401 defines relevant evidence as “evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Id. R. 401. Here, aggravated
sexual abuse of a child and sexual abuse of a child are specific intent crimes requiring
evidence that the defendant committed the crime “with the intent to arouse or gratify
the sexual desire of any person.” See Utah Code Ann. § 76‐5‐404.1(2). For reasons
stated above, the letter tends to show Bair’s intent to “arouse or gratify [his] sexual
desire” and is therefore relevant.
3. Probative Value Versus Unfair Prejudice Under Rule 403
¶22 Last, “we must determine whether [the] probative value of the evidence is
substantially outweighed by the danger of unfair prejudice under rule 403 of the Utah
Rules of Evidence.” State v. Burke, 2011 UT App 168, ¶ 34, 256 P.3d 1102, cert. denied, 263
P.3d 390 (Utah 2011). Rule 403 provides that “[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury.” Utah R. Evid. 403. The
analysis under rule 403 “is not whether evidence is prejudicial, but whether it is unfairly
prejudicial, that is, whether it has an undue tendency to suggest decision on an
improper basis.” State v. Schwenke, 2009 UT App 345, ¶ 17, 222 P.3d 768 (internal
quotation marks omitted), cert. denied, 230 P.3d 127 (Utah 2010). Thus, “even if some
level of unfair prejudice exists, [t]he mere fact that evidence possesses a tendency to
suggest a decision upon an improper basis does not require exclusion; evidence may be
excluded only if the danger of unfair prejudice substantially outweighs the probative
20090394‐CA 10
value of the proffered evidence.” Id. (alteration in original) (internal quotation marks
omitted). Thus, we “indulge a presumption in favor of admissibility.” State v. Dunn,
850 P.2d 1201, 1222 (Utah 1993).
¶23 To determine whether unfair prejudice outweighs the probative value of the
separation letter, we apply the factors originally described in State v. Shickles, 760 P.2d
291 (Utah 1988), which are commonly referred to as the Shickles factors. These factors
are
the strength of the evidence as to the commission of the
other [bad acts], the similarities between the [acts], the
interval of time that has elapsed between the [acts], the need
for the evidence, the efficacy of alternative proof, and the
degree to which the evidence probably will rouse the jury to
overmastering hostility.
Id. at 295‐96 (internal quotation marks omitted).
¶24 “[T]he strength of the evidence as to the commission of the other [bad acts],” see
id. at 295 (internal quotation marks omitted), is the most ambiguous of the Shickles
factors in this case. Although the authenticity of the separation letter is undisputed, the
contours of the bad act it purportedly illustrates is disputed. The State argues that the
admissions in the letter of a sex addiction lend weight to its specific intent argument.
However, as Bair states, the statement in the letter that he is “‘addicted to sex’” is
“‘vague and non‐descript’” and “doesn’t mean much” because “[f]rom the letter alone,
no one can determine if Bair was truly addicted to sex, and in what manner.”
Additionally, the letter does not indicate if Bair’s sex addiction entailed sex acts with
adult women exclusively, though Bair argues that the letter should be understood as
referring only to adult women. We agree with Bair that, in general, “a vague
description of an ‘addiction to sex’ certainly does not amount to an admission of such
an uncontrollable impulse to then act out upon a child.” This “addiction‐equals‐
molestation” theory, however, is not what the State argued at trial. See infra ¶¶ 31‐33. In
closing arguments, the State recognized that the jury could not convict Bair based on the
letter alone and urged the jury to consider the letter in context with the other evidence
presented.
20090394‐CA 11
¶25 Bair does not address the next Shickles factor in his brief—“the similarities
between the [acts].”6 See Shickles, 760 P.2d at 295 (internal quotation marks omitted).
Here, the evidence weighs more strongly in favor of admission of the letter. The
“touchy/feely” and “play around” aspects of sex that Bair described himself as having
an addiction to essentially comprise the abuse Daughter described.
¶26 The next Shickles factor—the length of time between the “acts”—also weighs in
favor of admission. Bair placed the letter on Mother’s windshield in August 1996 and
the abuse occurred sometime between February 1, 1997, and December 31, 1998. The
State’s inference that after “many months” of repressing his sexual urges, Bair
succumbed to them and abused Daughter becomes stronger in light of how close in
time the writing of the letter and the abuse occurred.
¶27 Next, we must evaluate the State’s need for this evidence and the “efficacy of
alternative proof.” State v. Shickles, 760 P.2d 291, 295‐96 (Utah 1988). The State argues
that the separation letter was necessary because evidence of specific intent would not
otherwise be available. However, during the hearing on the motion in limine, the State
admitted that evidence of specific intent is generally not available in cases like this.
While having some evidence of specific intent is better than having none, we are not
convinced that the State needed this evidence to prove Bair’s specific intent. We agree
with Bair that, as in most other cases where evidence of specific intent is not available,
“[t]he State could have easily argued that touching a child in the manner described by
[Daughter], if believed, could be for no other reason than sexual gratification.” See
generally State v. Watkins, 2011 UT App 96, ¶ 18, 250 P.3d 1019 (determining that the lack
of an alternative explanation left the jury with the reasonable inference that defendant
intended “to arouse or gratify his sexual desire” when he entered the child victim’s
bedroom and “kissed Child wetly on the side of her head for approximately three
minutes and . . . pinched and rubbed her buttocks for approximately two minutes”
(internal quotation marks omitted)), cert. granted, 250 P.3d 1187 (Utah 2011). And
indeed, the inference to be drawn that the sexual abuse occurred for no other reason but
6. In this case, the “acts” refer to the abuse of Daughter and the admitted addiction to
the “touchy/feely” and “play around” aspects of sex. Bair argues that the letter should
be understood to refer to sex acts with adults, and only adults. However, on its face, the
separation letter does not indicate whether Bair meant to refer to adults specifically. We
do not endeavor to resolve this ambiguity; that is an issue for the fact‐finder.
20090394‐CA 12
to “arouse or gratify” Bair’s sexual desire, see Utah Code Ann. § 76‐5‐404.1(2) (2008), is
arguably as strong, if not stronger than the connection the State draws from the
separation letter to Bair’s specific intent. Therefore, these two factors weigh against
admission.
¶28 Last, we must consider the prejudicial effect of the evidence and whether it was
likely to “rous[e] the jury to overmastering hostility.” Shickles, 760 P.2d at 296. The
letter indicates that Bair had, at the time of writing, suppressed his impulses to
“indulge[] in . . . sexual activity for many months” and that he felt he needed
professional help with the “strong emotions” he battled. These statements suggest that
several months after separating from Mother, Bair was unable to control himself any
longer and used Daughter to satisfy his addiction. That Bair considered walking out on
his marriage a necessary step on his path to recovery indicates that the emotions he was
struggling with were real and indeed strong, regardless of whether he truly suffered
from a diagnosable sex addiction. Alternatively, these statements could indicate that
Bair was capable of suppressing his “urge to act out sexually” for a long period of time,
at least “many months,” implying that he could have remained in control throughout
the period of the alleged abuse. Thus, the admission of these statements from the
separation letter still requires a logical leap that we are not prepared to say was an
obvious or easy one to make to demonstrate Bair’s specific intent to sexually abuse
Daughter.
¶29 Bair also describes the State’s use of the letter as a means to imply that Bair had
an “overmastering sex addiction that [caused him to] molest[] his own child, . . . [which]
confused the issues of the case and misdirected the attention of the jury to convict on
speculation and fear.” We disagree. As stated above, the letter itself did not clearly
lead to the conclusion that Bair’s vague assertions of a sex addiction resulted in his
sexually abusing Daughter. To the contrary, and conceded at trial by the State, the
letter is silent as to whether his sex addiction applies to adults, children, or both.
Although the admissions of marital infidelity and an addiction to sex could affect the
jury’s perception, both are certainly less egregious than the child abuse of which Bair is
accused. Cf. State v. Burke, 2011 UT App 168, ¶¶ 39‐40, 256 P.3d 1102 (noting that in the
context of a trial for forcible sexual abuse against an adult female, an “allegation that
[on the same evening of the offense charged, the defendant also] committed a sexual
offense against a four‐year‐old child may have an emotional impact on a jury that could
suggest a decision on an improper basis,” while the opposite—evidence of forcible
sexual abuse of an adult female presented during a trial for aggravated sexual abuse of
20090394‐CA 13
a child—would not impact the jury in such a way), cert. denied, 263 P.3d 390 (Utah 2011).
Accordingly, we doubt that the separation letter “would have caused the jury to hold an
increased hostility toward” Bair, weighing in favor of admission, see State v. Bradley,
2002 UT App 348, ¶ 36, 57 P.3d 1139.
¶30 We have determined that four Shickles factors weigh in favor of admission—the
strength of the bad acts evidence, the similarities, length of time, and prejudice
factors—and two weigh against admission—the need and efficacy factors. We note that
although the letter is not highly probative of intent, it is also not unfairly prejudicial.
Therefore, because we “indulge a presumption in favor of admissibility,” see State v.
Dunn, 850 P.2d 1201, 1222 (Utah 1993), and because rule 403 requires the probative
value to be “substantially outweighed” by the prejudicial effect, we determine that the
Shickles factors weigh in favor of admission. Accordingly, the trial court did not err in
admitting the letter as evidence of Bair’s specific intent.
B. Propriety of the State’s Arguments Surrounding the Separation Letter
¶31 Bair argues that because the letter refers only to sex acts with adults, not
children, the State needed to supply an expert witness to make the logical leap from the
statements in the letter to sexual abuse of a child. Bair’s argument, however, is based
on his mischaracterization of the State’s arguments surrounding the letter. The letter
was admitted as evidence of Bair’s intent; the State did not make the “addiction‐equals‐
molestation” argument that Bair urges. Additionally, the State’s use of the letter to
demonstrate Bair’s specific intent was not based on any sort of “specialized knowledge”
within the ambit of rule 702 of the Utah Rules of Evidence. See Utah R. Evid. 702
(explaining the contours of expert witness testimony). Therefore, Bair’s argument that
the State was required to present its theories of the import of the separation letter
through expert testimony is unavailing.
¶32 We also reject Bair’s argument that the State committed prosecutorial misconduct
in its use of the separation letter. Specifically, Bair argues that the State “clearly knew
and was well aware that Bair’s admissions and comments in the separation letter dealt
with sexual conduct and indiscretions with adults” but nonetheless “mischaracterized
the true facts[ and] inferred and argued facts to the jury which were known to be
untrue.” “In order to demonstrate prosecutorial misconduct, a defendant must show
that the actions or remarks of . . . counsel call to the attention of the jury a matter it
20090394‐CA 14
would not be justified in considering in determining its verdict.” Bradley, 2002 UT App
348, ¶ 42 (omission in original) (internal quotation marks omitted).
¶33 Here, the State did not affirmatively argue that the letter referred to an addiction
to “touchy/feely” sex acts specifically with children. Rather, the State acknowledged
that the letter was silent as to whether Bair’s claimed addiction involved adults,
children, or both. The jury is certainly justified in weighing the ambiguities and
weaknesses in the evidence in reaching its verdict, and the prosecutor did not commit
misconduct by pointing out those uncertainties. Cf. id. ¶ 44 (determining that no
prosecutorial misconduct occurred where “[t]he State merely urged the jury to consider
evidence already determined admissible”). Moreover, the fact that the letter was silent
as to the age range of Bair’s preferred sex partners also could have been construed by
the jury in favor of Bair. Accordingly, Bair’s prosecutorial misconduct claim fails.7
II. Recovered Memories
¶34 Bair contends that the trial court plainly erred by admitting Daughter’s
testimony to the extent her testimony was “tainted” by hypnosis or other “scientific
intervention which purportedly ‘recovered memory’ or ‘refreshed recollection.’”8 We
disagree.
7. Bair also claims that the State committed prosecutorial misconduct because its
“‘addiction‐equals‐molestation’ theory” was intended to “force [Bair] to incriminate
himself” by pushing him to explain that the acts of marital infidelity referred to in the
letter included “sexual exploits with prostitutes.” Because we have rejected this
characterization of the State’s theory of the case, this claim of prosecutorial misconduct
also fails.
8. Bair also challenges several of the trial court’s rule 23B findings respecting the
recovered memory issue as unsupported by the record and clearly erroneous.
However, he fails to argue how these alleged errors prejudiced him. Because Bair does
not adequately present this argument, we do not address it. See State v. Thomas, 961
P.2d 299, 304‐05 (Utah 1998) (noting that “a reviewing court will not address arguments
that are not adequately briefed,” which includes briefs in which “the overall analysis of
the issue is so lacking as to shift the burden of research and argument to the reviewing
court”). See generally Utah R. App. P. 24(a)(9) (explaining how to adequately present an
argument in an appellate brief).
20090394‐CA 15
¶35 Plain error requires a showing that “(i) [a]n error exists; (ii) the error should have
been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there
is a reasonable likelihood of a more favorable outcome for the appellant, or phrased
differently, our confidence in the verdict is undermined.” State v. Holgate, 2000 UT 74,
¶ 13, 10 P.3d 346 (alteration in original) (internal quotation marks omitted). The “harm”
factor in the plain error analysis “is equivalent to the prejudice test applied in assessing
claims of ineffective assistance of counsel.” See State v. Dean, 2004 UT 63, ¶ 22, 95 P.3d
276.
¶36 Here, Bair argues that because “[t]he law at the time of trial was clear” regarding
refreshed and recovered memories, the trial court should have prohibited Daughter’s
testimony to the extent her testimony was influenced by hypnosis or other such
techniques. Specifically, Bair contends that Daughter’s testimony that she was not
successfully hypnotized was insufficient for the trial court to continue the trial without
first conducting a hearing in limine to determine whether the hypnosis‐induced
testimony was admissible. Additionally, Bair’s argument relies on the belief that the
relaxation techniques Daughter underwent lacked the “necessary threshold reliability”
to be admissible, see Franklin v. Stevenson, 1999 UT 61, ¶ 20, 987 P.2d 22 (emphasis
omitted).
¶37 Bair’s argument fails because even if he can demonstrate that the trial court
erred, he cannot demonstrate that the error prejudiced him. For the sake of argument,
we will assume, without deciding, that the trial court should have stopped the trial and
held a hearing in limine after Daughter indicated that she had recovered some
memories while receiving therapy. We will also assume, without deciding, that the
outcome of that hearing would have required Daughter to restrict her testimony to the
memories she had before she underwent any memory‐recovering therapy. See generally
State v. Tuttle, 780 P.2d 1203, 1211 (Utah 1989) (“A previously hypnotized witness may
take the stand, but the witness’s testimony must be limited to his or her prehypnotic
recall as it has been recorded before hypnosis.”).
¶38 The memories Daughter had before undergoing therapy are recorded in an
interview she had at the CJC with the Detective and another investigator (collectively,
the investigators) shortly after she reported the abuse. In that interview, Daughter
explained that Bair had abused her multiple times over the course of a year or less while
she was between seven and eight years old and while he was living in an apartment in
Layton. Daughter told the investigators that Bair would kiss her on the lips; “stick his
20090394‐CA 16
tongue in” her mouth; play with her nipples; put his hands down her pants and rub her
vagina, buttocks, and “all the stuff down there”; and that on one occasion Bair touched
her “inside” with his finger. She told the investigators that she specifically remembered
the instance of penetration because it “scared [her]” and “made [her] feel sick.” She
explained that each session of abuse occurred in Bair’s bedroom while Sister and Son
were watching TV in the other room, and that each time the abuse lasted between thirty
and forty‐five minutes. She told the investigators that each time, Bair would “say[] that
he was loving [her] up” and tell her that she was pretty. Daughter admitted she could
clearly remember only the first and last instances of abuse but that she knew the abuse
occurred more than twice. She hesitated to estimate how many times the abuse
occurred, but when prompted, she guessed somewhere between “five to ten, maybe
fifteen” times. She was unable to remember a time of year to help identify when the
abuse occurred. She described the abuse as having promptly ended one day, when in
the middle of abusing her Bair “just said it was wrong[ a]nd he got up and he left.” She
told the investigators that Bair instructed her not to tell anybody and that he described
the abuse as their “little secret.” She told the investigators that she had denied being
abused when Mother asked her once in the past because she “didn’t want [Bair] to get
in trouble.” Daughter also explained that when she was in sixth grade, she disclosed the
abuse to Sister and that she ultimately reported the abuse to Mother out of concern for
Sister and a stepsister.
¶39 Daughter’s trial testimony was largely the same, save for a few small differences:
she testified that she believed the abuse occurred during the “warmer” part of the year;
she described her body parts with more specificity, using the terms “vaginal area” and
“clitoris” instead of “all that stuff down there”; she said that in addition to saying he
was loving her up and calling her pretty, Bair would tell Daughter that she was his best
friend and that Sister would be jealous of her; she testified that one time Sister and Son
were outside playing volleyball, not watching TV, while the abuse occurred; she
estimated the abuse to have occurred three to five times, rather than five to fifteen; she
testified that after disclosing the abuse to Sister in sixth grade, Sister begged her not to
tell Mother about it; and she provided additional details describing why she finally
came forward, including that she was having nightmares and visiting an online forum
for victims of abuse. Daughter identified two of these statements from her testimony as
being the product of “recovered memories”—the claim that the abuse occurred during
the warmer part of the year and that it occurred on three to five separate occasions.
Thus, had the trial court restricted Daughter’s testimony to pre‐therapy memories, as
far as the record indicates, only those two statements would have been omitted at trial.
20090394‐CA 17
This hardly amounts to a showing of prejudice under a plain error analysis. Indeed,
even assuming that all of these discrepancies resulted from memory‐recovering therapy
and should have been excluded from Daughter’s trial testimony, the statements
Daughter made during the CJC interview, which coincide with the bulk of Daughter’s
trial testimony, provided sufficient evidence for the jury to convict Bair of both charges.
Consequently, even assuming an error occurred, Bair nonetheless failed to demonstrate
that absent the alleged error, “there [was] a reasonable likelihood of a more favorable
outcome for [him]” or that “our confidence in the verdict [should be] undermined.”9
See Holgate, 2000 UT 74, ¶ 13.
III. The Detective’s Testimony
¶40 Next, Bair contends that the trial court committed prejudicial error by admitting
the Detective’s testimony. Specifically, he argues that the Detective’s “testimony
amounted to ‘expert’ testimony for which the State did not provide notice” and failed to
establish sufficient foundation, and that the Detective’s testimony violated rule 608 of
the Utah Rules of Evidence. We address each argument in turn.
A. Expert Testimony Argument
¶41 Bair points to several specific statements in the record to demonstrate that the
Detective’s testimony amounted to opinion statements “based upon his purported
experience.” Implicitly, Bair concludes that his utterance of opinion statements and
reliance on personal experience necessarily elevated the Detective’s testimony to expert
testimony.
¶42 However, because Bair fails to adequately brief this issue, we decline to address
it. To adequately brief an issue, appellants must include in their briefs their
“contentions and reasons . . . with respect to the issues presented, . . . with citations to
9. For this reason, Bair’s ineffective assistance of counsel claims based on trial counsel’s
failure to object to the admission of Daughter’s testimony on memory‐enhancement
grounds, obtain Daughter’s therapy records, or ask for a continuance, mistrial, or “other
remedy” also fails due to lack of prejudice. See generally State v. Dean, 2004 UT 63, ¶ 22,
95 P.3d 276 (equating the plain error harmfulness test with the “prejudice test applied in
assessing claims of ineffective assistance of counsel”).
20090394‐CA 18
the authorities, statutes, and parts of the record relied on.” Utah R. App. P. 24(a)(9).
“Implicitly, rule 24(a)(9) requires not just bald citation to authority but development of
that authority and reasoned analysis based on that authority. . . . [T]his court is not a
depository in which the appealing party may dump the burden of argument and
research.” State v. Thomas, 961 P.2d 299, 305 (Utah 1998) (internal quotation marks
omitted).
¶43 Here, Bair cites the Detective’s opinion‐like statements in the record; Utah Code
section 77‐17‐13, which requires parties to disclose the expert witnesses they intend to
call within thirty days of trial, see Utah Code Ann. § 77‐17‐13(1)(a) (2008); and one case,
the relevance of which is unclear, before concluding that the Detective’s testimony
amounted to expert testimony and that it was not admissible as expert testimony.
“However, this is all he did.” Cf. Thomas, 961 P.2d at 305. Bair failed to address rule 701
of the Utah Rules of Evidence, see Utah R. Evid. 701 (“If the witness is not testifying as
an expert, the witness’ testimony in the form of opinions or inferences is limited to those
opinions or inferences which are (a) rationally based on the perception of the witness,
(b) helpful to a clear understanding of the witness’ testimony or the determination of a
fact in issue, and (c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.”). He also failed to otherwise explain how or why the
Detective’s testimony constituted expert testimony. “While failure to cite to pertinent
authority may not always render an issue inadequately briefed, it does so when the
overall analysis of the issue is so lacking as to shift the burden of research and argument
to the reviewing court.” Thomas, 961 P.2d at 305. Accordingly, we do not address Bair’s
claim that the Detective’s testimony amounted to expert testimony.
B. Rule 608 Argument
¶44 Bair also challenges the Detective’s testimony as “inadmissible opinions that
improperly vouched for [Daughter’s] credibility, improperly discredited the veracity of
the defendant, and invaded the province of the jury” under rule 608 of the Utah Rules
of Evidence. Bair directs our attention to the Detective’s statements that Daughter’s
“trial testimony was ‘consistent’ with the disclosures she made originally”; that
Daughter’s delayed disclosure “‘was not surprising’” because “‘it’s not uncommon for a
victim not to disclose initially’”; and that Bair’s denials were flat, emotionless, and
atypical.
20090394‐CA 19
¶45 Rule 608 of the Utah Rules of Evidence states,
The credibility of a witness may be attacked or supported by
evidence in the form of opinion or reputation, but subject to
these limitations: (1) the evidence may refer only to
character for truthfulness or untruthfulness, and (2) evidence
of truthful character is admissible only after the character of
the witness for truthfulness has been attacked by opinion or
reputation evidence or otherwise.
Utah R. Evid. 608(a). Additionally, it is the province of the jury to resolve conflicts in
the evidence and “serve[] as the exclusive judge of both the credibility of witnesses and
the weight to be given particular evidence.” State v. Workman, 852 P.2d 981, 984 (Utah
1993).
¶46 The Utah Supreme Court’s decision in State v. Adams, 2000 UT 42, 5 P.3d 642, is
instructive. In that case, the defendant argued that his former paramour invented the
allegations of sexual abuse against him and coached her adult daughter, who had
Down’s Syndrome, into reporting the abuse as a means of retaliation for their breakup.
See id. ¶¶ 2, 6. The supreme court determined that a psychologist could testify as an
expert witness regarding the victim’s capacity to be coached into reporting a fabricated
abuse allegation, adopting the court of appeals’ holding that the doctor’s “testimony did
not violate rule 608(a) because it ‘did not go to whether [the victim] was telling the
truth. . . . [Rather, the doctor] merely stated it was his opinion she did not have the
cognitive ability to be coached.’” Id. ¶ 12 (omission in original) (quoting State v. Adams,
955 P.2d 781, 783 n.1 (Utah Ct. App. 1998)). The court reasoned that rule 608 “only bars
direct testimony regarding the truthfulness of a witness on a particular occasion” and
does not prohibit “testimony from which a jury could infer the veracity of the witness.”
Id. ¶ 14 (internal quotation marks omitted); see also State v. Cruz, 2002 UT App 106U,
para. 1 (mem.) (applying Adams to determine that a detective’s testimony describing the
victim’s story as consistent, without any indication of whether the detective believed
the victim’s allegations, “‘did not directly address [the victim’s] veracity,’ and did not
‘impermissibly invade the province of the jury or violate rule 608(a).’” (alteration in
original) (quoting Adams, 2000 UT 42, ¶ 14)).
¶47 Here, none of the Detective’s testimony “directly addressed” Bair’s or Daughter’s
“veracity,” see Adams, 2000 UT 42, ¶ 14. Rather, his testimony merely offered the
20090394‐CA 20
observation that Daughter’s trial testimony was consistent with the allegations she
made during the CJC interview. Additionally, the Detective’s testimony that abuse
victims often delay reporting reflects a fact already recognized by Utah courts—that
“[d]elayed discovery and reporting are common in [child sexual abuse] cases,”10 see
State v. Hoyt, 806 P.2d 204, 209 (Utah Ct. App. 1991). Simply noting that abuse victims
often delay reporting did not, as Bair claims, “invade[] the province of the jury by
suggesting that [Daughter] . . . is an actual victim, rather than simply a witness who has
made allegations.” Additionally, Bair’s trial counsel’s cross‐examination of the
Detective garnered several favorable admissions, presumably lessening the impact of
the Detective’s testimony regarding Bair’s demeanor. Because rule 608 “only bars direct
testimony regarding the truthfulness of a witness on a particular occasion,” and does
not prohibit “testimony from which a jury could infer the veracity of the witness,”
Adams, 2000 UT 42, ¶ 14 (internal quotation marks omitted), we do not believe the
Detective’s testimony violated rule 608(a) or invaded the province of the jury.11
IV. Ineffective Assistance of Counsel
¶48 Bair next contends that his trial counsel was ineffective for several reasons. We
address each argument in turn.
10. This case is not analogous to State v. Iorg, 801 P.2d 938 (Utah Ct. App. 1990), as Bair
claims. In that case, the deputy testified that delayed reporting was common and that
the victim’s “delayed reporting was not an indication that she was not telling the truth.”
Id. at 939. In Iorg this court applied rule 403 instead of rule 608, and concluded that the
deputy’s testimony constituted “anecdotal statistical evidence” and was inadmissible
because it was more prejudicial than probative. See id. at 941 (internal quotation marks
omitted). Here, the Detective did not directly comment on Daughter’s or Bair’s
veracity, or use his “anecdotal statistical” experience with delayed reporting and what
constitutes a typical response from an accused to otherwise directly opine on either
person’s veracity.
11. Because we treat this issue as though it were preserved, we do not address Bair’s
claims of plain error and ineffective assistance of trial counsel. Regardless, both
arguments would be defeated by our determinations that rule 608 was not violated and
that the jury’s province was not invaded.
20090394‐CA 21
¶49 As stated above, to succeed on an ineffective assistance of trial counsel claim, “a
defendant must . . . demonstrate that counsel’s performance was deficient, in that it fell
below an objective standard of reasonable professional judgment,” and “that counsel’s
deficient performance was prejudicial—i.e., that it affected the outcome of the case.”
State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland v. Washington, 466 U.S.
668, 687‐88 (1984)). “Defendant not only has the burden of meeting both prongs of this
test, but must also overcome ‘a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.’” State v. Snyder, 860 P.2d 351, 354
(Utah Ct. App. 1993) (quoting Strickland, 466 U.S. at 689). Additionally, because both
deficiency and prejudice must be shown, a reviewing court can “‘dispose of an
ineffectiveness claim on’” either ground. See Fernandez v. Cook, 870 P.2d 870, 877 (Utah
1993) (quoting Strickland, 466 U.S. at 697). Lastly, “[i]n ruling on an ineffective
assistance claim following a Rule 23B hearing, we defer to the trial court’s findings of
fact, but review its legal conclusions for correctness.” State v. Bredehoft, 966 P.2d 285,
289 (Utah Ct. App. 1998) (internal quotation marks omitted).
A. Failure to Call an Expert Witness To Rebut the State’s Arguments Regarding the
Separation Letter
¶50 Bair contends that he received ineffective assistance from his trial counsel in light
of trial counsel’s failure to “consult with [or] retain an expert” to rebut “the State’s
argument concerning the purported link between an ‘addiction to sex’ and the ‘intent’
to molest a child for sexual gratification.” This issue was presented during the hearing
on the rule 23B remand. At this hearing, Bair called a doctor “as a proposed expert on
the lack of a connection between an addiction to sex with adults and pedophilic
behavior.” The doctor testified that although “he is not aware of any scientific studies
showing that an addiction to sex with adults makes it more likely that a person would
molest children,” “situational offenders,” who are by definition “not sexually attracted
to children, . . . still molest them for other reasons.” The doctor explained “that 52‐58%
of child sex abusers are not sexually attracted to children.”
¶51 In its findings of fact from the rule 23B hearing, the trial court determined that
trial counsel decided not to call an expert witness to testify as to this matter out of
concern that it “would be ‘more damaging’” because it “would have highlighted the
[separation] letter to the jury by making it a focus of testimony from his expert, as well
as from an anticipated rebuttal expert from the State.” The trial court also noted that
trial counsel feared that developing an expert’s testimony on this matter “would open
20090394‐CA 22
the door to potentially damaging factual testimony from other witnesses about [Bair]’s
sexual addiction,” including testimony that Bair’s addiction was not “limited [in]
nature” and that he “had spent thousands of dollars on prostitutes while still married to
[Mother].” The trial court concluded that “[t]he proposed expert testimony would not
have rebutted the State’s claim” and that trial counsel’s concerns were legitimate. In
other words, the trial court determined that trial counsel did not perform deficiently
and, that even if he had performed deficiently, Bair suffered no prejudice from trial
counsel’s decision to forgo an expert witness on this matter.
¶52 We agree with the trial court. Trial counsel’s strategy in not calling an expert
witness was clear—to avoid opening the door to damaging factual testimony on
rebuttal, especially given that the testimony the doctor presented at the rule 23B hearing
was not very helpful. Indeed, the introduction of expert testimony on the separation
letter may have been more damaging to Bair’s case than helpful; as the trial court noted,
Bair’s “attraction to adults was not inconsistent with [Daughter’s] allegations,”
especially in light of the doctor’s statements that situational offenders, who by the
doctor’s definition are not attracted to children, nonetheless comprise “52‐58% of child
sex abusers.” Accordingly, the trial court correctly determined that trial counsel was
not ineffective for failing to call an expert witness to rebut the State’s arguments
regarding the separation letter. See generally State v. Dunn, 850 P.2d 1201, 1225 (Utah
1993) (“[I]f the challenged act or omission might be considered sound trial strategy, we
will not find that it demonstrates inadequacy of counsel.”).
B. Failure to Call Certain Witnesses
¶53 Bair also asserts that trial counsel was ineffective for failing to call three specific
witnesses (the three witnesses). Bair argues that the three witnesses would have
testified that “love up” was a phrase Bair used regularly, in a non‐sexual manner, and
that Sister and Son “were especially needy and clingy with [Bair] when they were
young (and close in time to the period of alleged abuse),” so much so that Bair “could
never be alone with any one of them for any substantial period of time,” thereby
undermining Daughter’s allegation that the abuse occurred while they were alone for
thirty‐ to forty‐five‐minute periods.
¶54 During the rule 23B remand, the trial court determined that “[n]one of the[ three]
witnesses knew [Bair] or [Daughter] at the time of the abuse” and that therefore “the
testimony of these witnesses would have had little relevancy to the issues that were
20090394‐CA 23
before the jury.” The trial court noted “that these witnesses would be unable to credibly
comment on the meaning of ‘love up’ at the time the abuse occurred or whether [Bair]’s
public use of this term was different from his private use of this term with [Daughter].”
¶55 We agree with the trial court. Even if the three witnesses were permitted to
testify, their proposed testimonies are, at best, “speculative of how the term ‘love up’
was used with [Daughter]” and of how Bair’s children interacted with him during the
period of abuse. In other words, Bair has failed to convince us that he was prejudiced
by trial counsel’s decision to not call any of the three witnesses. Additionally, as the
trial court stated, because trial counsel “could reasonably decide not to call these
witnesses, given that none of them had any information regarding the time period in
question, as well as the fact that none of their claims were actually inconsistent with
[Daughter]’s allegations,” Bair has failed to demonstrate that trial counsel performed
deficiently. See generally Parsons v. Barnes, 871 P.2d 516, 522 (Utah 1994) (recognizing
that both the prejudice and deficiency prongs of the ineffective assistance of counsel
analysis need to be met to succeed on a claim of ineffectiveness).
C. Failure to Adequately Prepare the Case
¶56 Bair contends that trial counsel failed to adequately prepare his case for several
reasons: trial counsel “met with Bair only at the courthouse on days Bair appeared for
court hearings”; these meetings would last for only forty‐five minutes to an hour; trial
counsel did not fully discuss with Bair the case, discovery, and the evidence the State
had against him; and trial counsel did not “speak with any witness listed in police
reports . . . or any possible witnesses dealing with specific State theories or other lines of
defenses or impeachment which [trial counsel] should have adduced from police
reports.” The trial court determined that trial counsel “spoke with [Bair] about the case
on multiple occasions and addressed both potential witnesses and strategies,” and that
he did not perform deficiently.
¶57 First, we “decline to determine what amount of time counsel must spend with a
defendant to ensure that the representation does not fall below an objective standard of
reasonableness.” See id. at 526. Second, Bair merely describes the additional research
trial counsel could have performed and concludes that counsel’s failure to do that
research harmed Bair’s case. This sort of speculation does not amount to actual
“evidence that counsel overlooked information critical to [Bair’s] defense as a result of
spending too little time with him in preparation.” See id. “[P]roof of ineffective
20090394‐CA 24
assistance of counsel cannot be a speculative matter but must be a demonstrable
reality.” Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993). Therefore, “[i]n the absence of
this evidence, we cannot find that the outcome of the [trial] would have been different if
defense counsel had spent more time with [Bair].” See Parsons, 871 P.2d at 526.
Accordingly, this ineffectiveness claim fails.
D. Waiver of the Preliminary Hearing
¶58 Bair also contends that trial counsel was ineffective for waiving the preliminary
hearing. Bair argues that “there was absolutely no reasonable trial strategy for full
waiver of the hearing” and that he was prejudiced by the waiver. Specifically, Bair
asserts that had there been a preliminary hearing, Daughter’s “surprise testimony”
regarding her recovered memories “would have been elicited and could have been
investigated and dealt with at a more proper time pretrial”; “that most, if not all, of the
objectionable trial testimony would have been elicited and could have been dealt with
pretrial through proper motions in limine,” including the Detective’s “‘expert’
testimony”; and that “[t]rial counsel could have also used this as an opportunity to
examine potential State or defense witnesses in order to solidify and preserve their
testimony,” including testimony from Sister that Bair presumes would have refuted
Daughter’s claim that she disclosed the abuse to Sister before she came forward to
authorities.12
12. On appeal and in his motion for a rule 23B remand, Bair argues that trial counsel
was ineffective for failing to call Sister as a witness. Bair contends that Sister would
have likely testified that Daughter never disclosed the abuse to her. Bair bases this
assumption on Sister’s CJC interview, during which the investigators asked Sister if
anyone “ever[] told [her] about anything” “unsafe [that has] happened to . . . anybody
in [her] home,” to which Sister responded, “I don’t think so.” Bair supported his rule
23B motion “with his own affidavit and that of [his] appellate counsel speculating on
[the] testimony that could have been provided by” Sister. This court determined that
Bair did not provide sufficient evidence for a rule 23B remand on that issue, and these
speculations continue to be insufficient to support his ineffectiveness claim on appeal.
See Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993). Accordingly, we reject Bair’s claim
that trial counsel was deficient for failing to call Sister as a witness.
20090394‐CA 25
¶59 Bair’s claims of prejudice are speculative and insufficient for us to conclude that
had a preliminary hearing been held, there was a reasonable likelihood of a more
favorable result at trial for him. See generally Fernandez, 870 P.2d at 877. Accordingly,
this ineffective assistance of trial counsel argument also fails.
V. “Position of Special Trust” or “Natural Parent” Aggravating Factor13
¶60 Bair argues that he is entitled to a new trial because the trial court employed an
ex post facto version of the Utah Code. Bair admits that this argument was not
preserved but argues that the plain error exception to preservation should apply.14 See
generally State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (identifying plain error as an
exception to the preservation rule). As stated before, the plain error doctrine requires a
showing that “(i) [a]n error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood
of a more favorable outcome for the appellant, or phrased differently, our confidence in
the verdict is undermined.” Id. ¶ 13 (alteration in original) (internal quotation marks
omitted).
¶61 Bair explains that he was prosecuted under the 1998 version of Utah Code
section 76‐5‐404.1(3)(h), which defines aggravated sexual abuse as including situations
where the abuse is “committed by a person who occupied a position of special trust,”
e.g., a natural parent (the natural parent aggravator). See Utah Code Ann. § 76‐5‐
404.1(3)(h) (Supp. 1998) (current version at id. § 76‐5‐404.1(3)(h) (2008)). However, as
Bair points out, the 1998 version of this section was not effective until May 4, 1998, see
Act of Mar. 14, 1998, ch. 131, 1998 Utah Laws 418, and Bair’s convictions identify the
abuse as having occurred sometime between February 1, 1997, and December 31, 1998.
13. Because of the manner in which we resolve this issue, we do not address Bair’s
challenge to the jury instructions regarding the aggravating factors.
14. Bair also argues that the exceptional circumstances exception to preservation
applies, see generally State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (recognizing the
exceptional circumstances exception to the preservation rule), and that his trial counsel
was ineffective for failing to preserve this issue, see State v. Verde, 770 P.2d 116, 118
(Utah 1989) (noting that an ineffective assistance of counsel claim is a means “to avoid
the effect of . . . [trial] counsel’s failure to preserve the [argument]”). Because of the
manner in which we resolve this issue, we do not address these alternative arguments.
20090394‐CA 26
The version of section 76‐5‐404.1(3)(h) effective in 1997 and until the 1998 amendment
became effective explicitly excluded “a natural parent . . . who has been living in the
household” from the definition of a “person who occupie[s] a position of special trust.”
Id. (Supp. 1997). The jury was not asked to identify when the abuse specifically
occurred during the twenty‐two‐month period alleged, and there is no evidence in the
record identifying specific dates within that time frame to help determine which version
of the statute should have applied to which parts of Daughter’s allegations.
¶62 Therefore, we conclude that the trial court committed plain error. Application of
the 1998 version of section 76‐5‐404.1(3)(h) alone, under the facts and circumstances of
this case, was erroneous. That error should have been obvious to the trial court. And
because no evidence was presented to allow the jury to pinpoint when during the
alleged twenty‐two‐month period the abuse occurred to determine which version of
section 76‐5‐404.1(3)(h) should have applied, we cannot be sure the jury’s verdict, to the
extent it was based on the natural parent aggravator, is supported by the evidence.15 Cf.
State v. Johnson, 821 P.2d 1150, 1158‐60 (Utah 1991) (determining that because the jury
returned a general verdict of guilty, the court could not discern on which aggravating
factor the jury was unanimous).
¶63 The State argues that because the jury could have based its convictions of both
counts of aggravated sexual abuse on the other aggravating factor charged, any error in
the trial court’s use of the natural parent aggravator was harmless. We disagree. While
“[o]ne might argue that we should affirm the . . . verdict if there is sufficient evidence to
support a finding of guilt under either of the aggravating circumstances therein
presented,” id., “[w]e conclude . . . that such an avenue is not open to us here,” id. at
1159. The other aggravating factor charged permitted the jury to convict Bair if it
15. Bair describes the plain error the trial court committed as an ex post facto
application of the 1998 version of the statute. This argument assumes that the abuse
occurred prior to the date the 1998 version of the statute became effective—May 4, 1998.
We cannot agree; there is no evidence in the record to determine when during the
charged twenty‐two‐month time frame the abuse occurred. As a result, we cannot
determine that application of the 1998 version necessarily constituted an ex post facto
type error. Rather, we determine that without any evidence pinpointing when the
abuse occurred during the alleged time frame, neither version of the statute should
have been applied exclusively.
20090394‐CA 27
determined that he “caused the penetration, however slight, of the genital or anal
opening of the child by any part or parts of the human body other than the genitals or
mouth” (the penetration aggravator). See Utah Code Ann. § 76‐5‐404.1(4)(j) (2008).
However, because a jury verdict must be unanimous in a criminal case, see Utah Const.
art. I, § 10, “a general verdict of guilty cannot stand if the State’s case was premised on
more than one factual or legal theory of the elements of the crime and any one of those
theories is flawed or lacks the requisite evidentiary foundation,” Johnson, 821 P.2d at
1159. “In such circumstances, it is impossible to determine whether the jury agreed
unanimously on all of the elements of a valid and evidentially supported theory of the
elements of the crime.” Id.
¶64 Here, the jury convicted Bair of both counts of aggravated sexual abuse, but did
not specify the aggravating factor upon which its conviction was based. See id.
(determining that there was insufficient evidence to support a conviction for attempted
first degree murder based on one of the two charged aggravating factors, and noting
that the jury did not specify the aggravating factor upon which its verdict was based).
Consequently, “we cannot determine whether the jury was unanimous on the elements
of the offense based on” the penetration aggravator alone, “mak[ing] it impossible for
us to affirm on th[at] alternative [aggravating factor]” regardless of whether there is
sufficient evidence to do so. See id.; see also State v. Saunders, 1999 UT 59, ¶ 64, 992 P.2d
951 (“[T]he jury [has] to agree unanimously on which specific aggravating
circumstances . . . [were] committed. . . . [A] guilty verdict [would] not [be] valid if
some jurors found one aggravating circumstance and other jurors found another
aggravating circumstance; it [is] not enough that they simply unanimously agree on
guilt.” (construing State v. Tillman, 750 P.2d 546 (Utah 1987))).
¶65 Nevertheless,
[w]hen an error at trial taints a defendant’s conviction, as it
has here, we have “the power to enter judgment for a lesser
included offense . . . if (i) the trier of fact necessarily found
facts sufficient to constitute the lesser offense, and (ii) the
error did not affect these findings.”
State v. Carruth, 947 P.2d 690, 693 (Utah Ct. App. 1997) (omission in original) (quoting
State v. Dunn, 850 P.2d 1201, 1209 (Utah 1993)), affʹd, 1999 UT 107, 993 P.2d 869; see also
Dunn, 850 P.2d at 1209 (relying “on [the court’s] general power to modify criminal
20090394‐CA 28
judgments on appeal to direct entry of judgment for” a lesser included offense).
“[W]here . . . two crimes are such that the greater cannot be committed without
necessarily having committed the lesser, then as a matter of law they stand in the
relationship of greater and lesser offenses . . . .” State v. Hill, 674 P.2d 96, 97 (Utah 1983)
(citation and internal quotation marks omitted).
¶66 Sexual abuse of a child is a lesser included offense of aggravated sexual abuse of
a child. See State v. McCloud, 2005 UT App 466, ¶ 15, 126 P.3d 775. Compare Utah Code
Ann. § 76‐5‐404.1(2) (2008) (defining sexual abuse of a child as when “the actor touches
the anus, buttocks, or genitalia of any child, the breast of a female child, or otherwise
takes indecent liberties with a child, or causes a child to take indecent liberties with the
actor or another with intent to cause substantial emotional or bodily pain to any person
or with the intent to arouse or gratify the sexual desire of any person regardless of the
sex of any participant”), with id. § 76‐5‐404.1(4) (defining aggravated sexual abuse of a
child as occurring when one of several enumerated conditions exists “in conjunction
with the offense described in Subsection (2)”). The jury was instructed as follows:
Before you can convict the defendant, Robert David Bair, of
AGGRAVATED SEXUAL ABUSE OF A CHILD, as charged
in Counts One and Two of the Information, you must find
from the evidence beyond a reasonable doubt, all of the
following elements of the crime.
1. That on or about February 1, 1997 through December 31,
1998, in Davis County, Utah;
2. The defendant, Robert David Bair;
3. did knowingly, intentionally, or recklessly;
4. touch the anus, buttocks, genitalia, or the breast of the
female child or otherwise took indecent liberties with a
child, or caused a child to take indecent liberties with the
actor or another;
5. That such acts were performed with the intent to cause
substantial emotional or bodily pain to any person or with
20090394‐CA 29
the intent to arouse or gratify the sexual desire of any person
regardless of the sex of any participant;
AND
6. a. the offense was committed by a person who occupied a
position of special trust in relation to the victim; OR
b. the accused cause[d] the penetration, however slight,
of the genital or anal opening of the child . . . .
Steps one through five of the jury instruction, which were not affected by the
amendment to the statute, follow the statutory definition for sexual abuse of a child,
while step six, which was affected by the amendment, enumerates the two aggravating
factors charged. Thus, “the jury necessarily found every fact required for [sexual abuse
of a child] beyond a reasonable doubt in returning a guilty verdict under the
[aggravated sexual abuse of a child] instruction it was given.” See Dunn, 850 P.2d at
1211. Additionally, “neither [Bair] nor the State [is] unfairly prejudiced by our decision
to reduce [Bair’s] conviction[s] to” sexual abuse of a child.16 See id. at 1212. Bair argues
that the error in the application of the 1998 version of the natural parent aggravator
entitles him to a new trial. However, “[a] new trial . . . is not necessary[ where e]ach
element of the lesser included offense of sexual abuse of a child . . . was established at
trial.” See McCloud, 2005 UT App 466, ¶ 15. Although we affirm the trial court on all of
the other issues raised on appeal, see supra sections I‐IV, because the trial court plainly
erred in applying only the 1998 version of Utah Code section 76‐5‐404.1(3)(h), we direct
16. In State v. Dunn, 850 P.2d 1201 (Utah 1993), the Utah Supreme Court recognized that
“[t]his procedure does not constitute interference with the
function of the trial judge or jury in a criminal trial, but
rather constitutes action in accordance with the findings of
the trier of fact. Moreover, this procedure does not deprive
the defendant of his right to have a trial judge or jury decide
on the proof of the elements of the lesser and included
offense, but rather recognizes that the trier of fact has
already made that decision.”
Id. at 1212 n.8 (emphasis omitted) (quoting State v. Byrd, 385 So. 2d 248, 252 (La. 1980)).
20090394‐CA 30
the trial court to enter judgment against Bair on the lesser included offenses of sexual
abuse of a child. Cf. McCloud, 2005 UT App 466, ¶ 15 (vacating the jury’s conviction and
remanding with instructions for the trial court to enter a conviction for a lesser included
offense where one of the two charged aggravating factors was not supported by
sufficient evidence and which aggravating factor the jury agreed upon was unclear).
VI. Cumulative Error
¶67 Last, Bair alleges that the cumulative effect of the numerous asserted errors
discussed in the preceding pages requires he be granted a new trial. “In assessing a
claim of cumulative error, we consider all the identified errors, as well as any errors we
assume may have occurred.” Dunn, 850 P.2d at 1229. Here, we determined an error
occurred in regard to the last issue, and our framing of the recovered memories issue
assumes, without deciding, that an error occurred. Nonetheless, having identified only
one error and assumed one other, we “conclude that the cumulative effect of the
identified and assumed errors does not undermine our confidence in the essential
fairness of the trial.” See id.; see also id. at 1224, 1226, 1229 (rejecting the defendant’s
cumulative error claim despite having assumed for the sake of argument that several
errors, which individually were not prejudicial, occurred at trial).
CONCLUSION
¶68 The trial court did not err in admitting the separation letter as evidence of Bair’s
specific intent under rules 404(b), 401, 402, and 403 of the Utah Rules of Evidence, and
the State was not required to present its theories on the import of the separation letter
through expert testimony. Additionally, the State’s use of the separation letter at trial
did not constitute prosecutorial misconduct. Next, even assuming the trial court
committed error by admitting the portions of Daughter’s testimony that may have been
influenced by memory‐recovering therapies, Bair cannot demonstrate that he was
prejudiced by these admissions. We decline to address Bair’s claim that the Detective’s
testimony amounted to expert testimony because it was inadequately briefed, and we
determine that the Detective’s testimony did not violate rule 608(a) of the Utah Rules of
Evidence or invade the province of the jury. The trial court correctly determined that
Bair’s trial counsel was not ineffective for failing to call an expert witness to rebut the
State’s arguments regarding the separation letter and that he was not ineffective for
failing to call the three witnesses. The trial court also correctly rejected Bair’s
20090394‐CA 31
arguments that trial counsel was ineffective for inadequately preparing his case and
waiving the preliminary hearing. Bair’s cumulative error argument also fails. The trial
court did commit plain error when it applied only the 1998 version of Utah Code
section 76‐5‐404.1(3)(h) regarding the natural parent aggravator, but because the jury
necessarily convicted Bair of the lesser included offense of sexual abuse of a child when
it found him guilty beyond a reasonable doubt of aggravated sexual abuse of a child,
we remand on this issue with instructions for the trial court to resentence Bair
accordingly.
____________________________________
James Z. Davis, Judge
‐‐‐‐‐
¶69 WE CONCUR:
____________________________________
Gregory K. Orme, Judge
____________________________________
Michele M. Christiansen, Judge
20090394‐CA 32