State v. Peraza , 427 P.3d 276 ( 2018 )

2018 UT App 68THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ROBERT ALONZO PERAZA,
Appellant.
Opinion
No. 20160302-CA
Filed April 19, 2018
Fourth District Court, Provo Department
The Honorable Darold J. McDade
No. 131402387
Douglas J. Thompson and Margaret P. Lindsay,
Attorneys for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
JILL M. POHLMAN and RYAN M. HARRIS concurred.
TOOMEY, Judge:
¶1 Robert Alonzo Peraza appeals his conviction of four
counts of sodomy on a child (Child). Peraza’s trial was
continued twice because the State did not provide all relevant
discovery in time for defense counsel to prepare a defense and to
procure an expert witness for impeachment purposes. Then,
thirty-two days before trial, the State filed a notice of expert
witness to rebut Peraza’s anticipated defense. The notice
disclosed the name and address of the expert (Expert), her
curriculum vitae, a one-sentence description of the nature of her
testimony, and a list of citations to more than 130 articles upon
which Expert would rely; the notice did not include an expert
report.
State v. Peraza
¶2 We are asked to determine whether the State sufficiently
complied with the notice requirements under Utah Code section
77-17-13 and, if not, whether the district court erred in admitting
Expert’s testimony under rule 702 of the Utah Rules of Evidence.
We are also asked to determine whether, based on the lack of
expert report, Peraza’s third motion for a continuance should
have been granted. We conclude the district court exceeded its
discretion when it denied the motion to continue after
erroneously deciding to allow Expert to testify. The State’s notice
did not comply with section 77-17-13, depriving the court of the
information necessary to rule on the admissibility of Expert’s
testimony under rule 702. The State also failed to meet its burden
of demonstrating that Peraza would not be prejudiced by the
denial of his motion. Peraza was entitled to a continuance so that
he could prepare to respond to Expert’s testimony. We therefore
vacate Peraza’s convictions and remand for a new trial. 1
BACKGROUND
The Allegations
¶3 Peraza was charged with four counts of first-degree
sodomy on a child 2 after Child accused him of sexually abusing
her. 3
1. Peraza also filed a motion for a rule 23B remand “for findings
necessary to determine ineffective assistance of counsel.” See
Utah R. App. P. 23B. Because we vacate Peraza’s convictions and
remand for a new trial on other grounds, we need not address
Peraza’s motion or consider his claims that his counsel was
ineffective. See State v. Richardson, 2006 UT App 238, ¶ 1 n.2, 139
P.3d 278.
2. Peraza was also charged with one count of first-degree
aggravated sexual abuse of a child, but the State dismissed the
charge after closing arguments and it is not an issue on appeal.
3. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
(continued…)
20160302-CA 2 2018 UT App 68State v. Peraza
¶4 Child informed her mother (Mother) and her grandfather
that Peraza did “bad things” to her that she “did not like.”
During an interview at the Children’s Justice Center (CJC), Child
told a social worker that Peraza did something to her that
happens “when parents really love each other.” Child explained
that Peraza showed her his “pee pee,” and made her use a hand
gesture while she touched it, and he forced her to touch it with
her mouth. She said he forced her to do this more than once.
¶5 After the first CJC interview, Child moved to California to
live with her father, and after relocating to California she began
therapy. Part of her treatment was to, “make effigy dolls, and . . .
kill the effigy doll named [Peraza].” Eventually, Child disclosed
that a second perpetrator may have also sexually abused her,
and she made and “killed” effigy dolls of that person too.
¶6 Child’s descriptions of the abuse varied over time. On
some occasions, she was explicit in describing the acts Peraza
had her perform, including descriptions of anal penetration; at
other times she recanted what she had described. While she was
living with Mother in Utah, Child wrote Mother a note asserting
that the abuse did not happen. After she moved to California,
Child called Mother, more than once, to say that Peraza did not
do anything to her. She also told a private investigator that
Peraza did not touch her and that she never touched him.
¶7 But at trial, Child withdrew her recantations and testified
that Peraza sexually abused her. She also provided more detail
when describing the abuse than she had done in previous
interviews and therapy sessions. For example, at trial, she
testified that “Peraza had put his penis in her vagina”; that
testimony was the first time the prosecutor and defense counsel
had heard that allegation.
(…continued)
We present conflicting evidence only as necessary to understand
issues raised on appeal.” Mackin v. State, 2016 UT 47, ¶ 2 n.1, 387
P.3d 986 (quotation simplified).
20160302-CA 3 2018 UT App 68State v. Peraza
Pretrial Proceedings
¶8 Peraza’s trial was first scheduled for March 2015. But the
district court granted Peraza’s motion for a continuance based
on newly disclosed “evidence warranting additional
investigation”—including a sexual assault nurse examination
report; Child’s second interview with someone at a CJC in
California; and the State’s indication of its “intent to have
[Child’s therapist] testify at trial.” The court set a pretrial hearing
in April to schedule a new trial date. During that hearing,
defense counsel argued, based on arguments made in Peraza’s
motions supporting his motion for a continuance, that trial could
not be scheduled because the State still had not produced the
requested evidence, the therapist had not provided Child’s
therapy records, and these records had not been subjected to an
in camera review. 4 The court determined it would postpone
scheduling a trial until further evidence had been disclosed.
4. “In camera” means “[i]n the judge’s private chambers” or “[i]n
the courtroom with all spectators excluded.” In Camera, Black’s
Law Dictionary (9th ed. 2009). Rule 506 of the Utah Rules of
Evidence “cloaks in privilege confidential communications
between a patient and her therapist in matters regarding
treatment.” State v. Blake, 2002 UT 113, ¶ 18, 63 P.3d 56. An
exception to this rule applies if an otherwise privileged
communication is “‘relevant to an issue of the physical, mental,
or emotional condition of the patient in any proceeding in which
that condition is an element of any claim or defense.’” Id.(quoting Utah R. Evid. 506(d)(1)). If a party resists disclosure of
the physician-patient communications, “the defendant must
petition for an in camera review in which the [district] court will
review the records to determine if they actually contain material
that is relevant and ought to be disclosed.” State v. Otterson, 2010
UT App 388, ¶ 5, 246 P.3d 168. This review may be conducted
“only if the defendant shows with reasonable certainty that
exculpatory evidence exists which would be favorable to [the]
defense.” Id. (quotation simplified).
20160302-CA 4 2018 UT App 68State v. Peraza
¶9 In June 2015, the district court issued a subpoena duces
tecum for Child’s therapy records, and the State stipulated to an
in camera review of those records. By August, the court still had
not received Child’s therapy records, but the therapist indicated
she was reviewing them to redact information not relevant to the
case. Relying on this, the court scheduled trial for October 2015.
Then in late September, after receiving the records and defense
counsel’s request for information from the records, the court
informed the parties it would provide the redacted records “by
the end of [the] week.”
¶10 Although trial was set for the end of October 2015,
defense counsel requested another continuance because he had
learned that a private investigator recorded one of Child’s
recantations. Counsel also explained that he needed more time
to secure Child’s therapist as a fact witness “for impeachment
purposes” because of Child’s recantations. The State agreed that
given the circumstances, “it’d be better to continue the trial” and
stated that it was also “look[ing] at re-filing” a notice of expert
witness based on Child’s therapy records. The court commented
that it did not “know that [it] ha[d] any choice” and continued
the trial to February 2016 with a final pretrial conference
scheduled for late January.
¶11 During the January pretrial conference, the State
stipulated to the introduction of Child’s therapy records for
impeachment purposes because defense counsel was unable to
procure Child’s therapist as a witness at trial. Peraza also
challenged whether Expert should be allowed to testify. The
court agreed to hear oral argument on Peraza’s objection the
following week, on January 28, 2016—twelve days before trial.
¶12 During the hearing, defense counsel argued that the
State’s notice of expert witness was inadequate because it did
not include an expert report or any written explanation that
would inform the court “exactly what this expert would be
testifying to.” The notice provided Expert’s name and address,
her curriculum vitae, and a list of more than 130 articles that she
would be relying upon. The notice also included a one-sentence
statement that the State intended to use Expert to present
20160302-CA 5 2018 UT App 68State v. Peraza
evidence of the “methodology and science related to forensic
interviewing of suspected child sex abuse victims” and related to
“child disclosures of sex abuse including identified factors
related [to] delayed, partial and gradual disclosures and
recantations.” But counsel asserted that he could not get access
to the articles cited, because the medical journals in which they
were published required readers to pay for a subscription. And
without an expert report, defense counsel argued that all he had
been provided were “topics” that could be related to Expert’s
testimony. Further, he argued,
What’s troubling to me is, I don’t know if those are
case notes that talk about possible theories, which
if they’re just theories, that would be argument,
and the state is clearly allowed to argue. But to
present evidence of this nature, I think implies a
statistical analysis. And the case law that was cited
in my objection . . . ha[s] already said that [our
courts] disfavor this type of testimony,
because . . . it implies there’s a scientific . . . [and]
statistical basis for it, but yet there isn’t an actual
statistical basis for [the theories].
He asked the court “to incorporate the objection that [was] filed”
in response to the State’s initial notice of expert when the State
sought to admit Child’s therapist’s testimony. This written
objection, based on Utah Code section 77-17-13 and rules 702
and 403 of the Utah Rules of Evidence, discussed the prejudicial
effects of expert witnesses testifying to “statistical evidence of
matters not susceptible to quantitative analysis” and pointed out
that the Utah Supreme Court had determined in State v. Rammel,
721 P.2d 498 (Utah 1986), that “statistically valid probabilities
evidence that focuses the jury’s attention on ‘a seemingly
scientific, numerical conclusion’” should be excluded. Id. at 501.
¶13 The State handed the court a copy of defense counsel’s
previous written objection, then explained that the purpose of
Expert’s testimony was to rebut the defense’s assumed strategy
20160302-CA 6 2018 UT App 68State v. Peraza
of showing “that [Child] changed her testimony over time, [and]
at one point that there was a recantation.” Moreover, it did not
intend “to have [Expert] say that [Child] is telling the truth or
lying, but to simply explain to the jury that there are
circumstances” where children “with confirmed histories of
sexual abuse” have expressed “denial or hesitation” in their
disclosures of the abuse.
¶14 Defense counsel countered that “with no doubt, we will
be presenting evidence that [Child] has recanted both to her
mother and also [to] a private investigator.” But he argued that
without a report from Expert, the State’s notice did not provide
sufficient information with respect to Expert’s proposed
testimony to allow the defense to adequately prepare to rebut
her testimony. Further, he argued that it appeared Expert’s
testimony would relate only to “possibilities” for why Child
recanted and that to have “an expert testify about them without
a scientific basis, is concerning because it gives more weight to
the state’s arguments than maybe it should.” Defense counsel
added that, if Expert were to mention the “possibility that there
are repressed memories,” such references are prohibited by Utah
Supreme Court precedent, and while they may be “valuable in
the therapeutic setting . . . they’re too prejudicial and not
allowed in a forensic setting.” 5
5. This argument was further supported by Utah case law cited
in Peraza’s motion to exclude Child’s therapist as an expert
witness, which he incorporated into his motion with respect to
Expert. For example, Peraza cited State v. Rammel, 721 P.2d 498(Utah 1986), in which a detective drew on his experiences and
provided anecdotal data to support his conclusions that “there
was a high statistical probability” that a witness lied to the police
in his first interview. Id. at 501. The Utah Supreme Court
determined that the detective failed to show that the anecdotal
data from which he drew his conclusions had any statistical
validity or that the data established the detective as an expert. Id.
It also determined that the detective’s testimony stating that
(continued…)
20160302-CA 7 2018 UT App 68State v. Peraza
¶15 At the conclusion of the hearing, the district court
determined that Expert would be allowed to testify at trial if the
State determined her testimony was necessary for rebuttal. It
told the parties, based on its assumption of what Expert would
testify to, Expert was qualified because “according to the rules of
evidence, this person would meet the criteria for being an expert
even [though] . . . none of us can really tell until we get to the
testimony . . . whether or not [Expert is] going to be needed [for
rebuttal].”
¶16 Later that day, after the State “provide[d] some” of the
articles on which Expert would rely, the court held a telephone
conference to address defense counsel’s motion to continue the
trial in light of the court’s decision to allow Expert to testify. The
State’s disclosure led defense counsel to consult a social worker
from the Salt Lake Legal Defender Association to help prepare a
defense strategy with respect to Expert’s testimony. Counsel
requested, once again, a continuance to allow him to procure an
(…continued)
“there was a high statistical probability” that another witness
lied should have been excluded because “its potential for
prejudice substantially outweighed its probative value.” Id. The
supreme court explained that “[e]ven where statistically valid
probability evidence has been presented . . . courts have
routinely excluded it when the evidence invites the jury to focus
upon a seemingly scientific, numerical conclusion rather than to
analyze the evidence before it and decide where truth lies.” Id.And “[p]robabilities cannot conclusively establish that a single
event did or did not occur and are particularly inappropriate
when used to establish facts not susceptible to quantitative
analysis, such as whether a particular individual is telling the
truth at any given time.” Id. (quotation simplified). Peraza used
Rammel and other cases to support his argument that “proposed
testimony linking [Child’s] symptoms and behavior to
behavioral norms testimony is presumptively unreliable and
prejudicial . . . and inadmissible as expert witness evidence
under Rule 403.”
20160302-CA 8 2018 UT App 68State v. Peraza
expert to rebut that testimony. He explained that he felt further
obligated to make this request because of the therapy treatments
Child received—specifically, killing the effigy dolls of her
alleged abusers—“could give grounds for the recantation of the
recantation . . . [and] might have led to the allegations becoming
much more violent and much more pronounced as the years
have gone on.” The State responded that although it was
“unhappy with the fact that we’re continuing again” but
understood the basis for it. Nevertheless, the court stated that it
was “not inclined” to continue the trial and that it had to “draw
the line somewhere.” After denying the motion to continue, the
court “recognize[d] this might be something that could be used
later” on appeal, but determined “this [was] too late in the
game.”
The Trial
¶17 The following week, the case proceeded to trial. During
the State’s case-in-chief, Child testified to the nature of the abuse
she allegedly suffered from Peraza, beginning when she was six
years old. She also testified that she lied to Mother and the
private investigator when she said the abuse did not occur.
¶18 The State also called Mother, who testified that Child
recanted her allegations to her and to the private investigator.
Mother testified that Child recanted her allegations more than
once. Defense counsel called the private investigator, who
testified about his interview with Child in which Child recanted
her allegations.
¶19 In an effort to rebut Mother’s and the private
investigator’s testimonies that Child had recanted her allegations
on different occasions, the State called Expert to testify about
disclosures and recantations by victims of sexual abuse. Defense
counsel objected to Expert’s testimony on the ground that she
was not a “rebuttal witness” because “the evidence about [Child]
recanting her statements came out in the [S]tate’s case.” Defense
counsel added that it was the State that introduced Child’s
interview in which Child recanted her allegations against Peraza,
and as such, Expert’s testimony could not be characterized as a
20160302-CA 9 2018 UT App 68State v. Peraza
rebuttal. The court overruled the objection and allowed Expert to
testify.
¶20 Expert explained she was “trained as a forensic
interviewer” and that she had provided “supporting research
citations” for the “areas of inquiry for expert testimony.” She
said that the articles identified in the notice were “articles that
[she had] read, and so, the topics that would be contained in
some of those different articles” were information “that [she]
felt” allowed her “to testify as an expert.” But Expert did not
interview or assess Child. She had not reviewed any evidence of
the case before testifying and answered questions “based off of
the testimony [she] heard, since [she had not] seen transcripts or
anything.” Expert acknowledged her testimony was only
“academic.”
¶21 Expert testified she had conducted around 1,900 forensic
interviews with children and that recanting is “not something
that happens in all cases, as far as some of the research says,”
and that recantations can “var[y] between four percent to 20
percent of cases, so it’s not something that’s typical, but it’s not
unheard of.” She reiterated that “generally, because a child
recants does not mean that it did not occur” and commented,
Sometimes, when a child recants, it may be feeling
pressure from family members. . . . [O]ften times if
it’s someone that they love, having gone to jail, or
if the person’s no longer in the home, and now the
family is struggling for money, sometimes those
are circumstances where the child might think,
“things were not like this before I talked about it,
I’ll just—it’s just better to go back to how things
were, I can deal with that.”
¶22 The jury convicted Peraza on all four counts of sodomy
upon a child. Peraza appeals his convictions.
20160302-CA 10 2018 UT App 68State v. Peraza
ISSUES AND STANDARDS OF REVIEW
¶23 Peraza contends the district court erred when it admitted
Expert’s testimony at trial because the State had not provided
sufficient information to demonstrate the scientific validity or
basis of the testimony that would have allowed the court to
determine whether she met the requirements for expert
testimony under rule 702 of the Utah Rules of Evidence. 6
Specifically, Peraza argues that the State did not provide “any
6. Peraza also contends the district court erred when it permitted
the jury to review the video of the CJC interview during
deliberations. This argument is unpreserved. Generally, “an
appellant must properly preserve an issue in the district court
before it will be reviewed on appeal.” State v. Houston, 2015 UT
40, ¶ 19, 353 P.3d 55 (quotation simplified). To preserve an issue,
it must have been presented “in such a way that the court ha[d]
an opportunity to rule on [it].” Id. (quotation simplified). There
are limited exceptions to the preservation rule, including
instances of plain error or exceptional circumstances—neither of
which are argued by Peraza on appeal. See id.Although this argument is unpreserved, we briefly
address this issue to avoid its recurrence on remand. Rule 17 of
the Utah Rules of Criminal Procedure allows the jurors to “take
with them the instructions of the court and all exhibits which
have been received as evidence, except exhibits that should not,
in the opinion of the court, be in the possession of the jury.” In
State v. Carter, 888 P.2d 629 (Utah 1995), superseded by statute as
stated in Archuleta v. Galetka, 2011 UT 73, 267 P.3d 232, the Utah
Supreme Court determined that rule 17 “indicates that exhibits
which are testimonial in nature should not be given to the jury
during its deliberations.” Id. at 643. After Peraza’s trial, this court
determined in another case that video recordings of CJC
interviews are recorded testimony and should not be given to
the jury during deliberations. State v. Cruz, 2016 UT App 234,
¶¶ 37–41, 387 P.3d 618. Accordingly, on remand the district
court should not provide any testimonial evidence to the jury
during its deliberations.
20160302-CA 11 2018 UT App 68State v. Peraza
details about what [Expert’s] testimony would be so that the
defense could investigate whether such testimony could be
supported by” the more than 130 article citations Expert
provided. The district court “has wide discretion in determining
the admissibility of expert testimony, and such decisions are
reviewed under an abuse of discretion standard.” State v. Hollen,
2002 UT 35, ¶ 66, 44 P.3d 794 (quotation simplified). “[W]e will
not reverse a decision to admit or exclude expert testimony
unless the decision exceeds the limits of reasonability.” Id.(quotation simplified). Even if we determine the testimony was
erroneously admitted, the defendant must show that the error
was prejudicial. State v. Iorg, 801 P.2d 938, 941 (Utah Ct. App.
1990).
¶24 Peraza also contends that the district court’s denial of his
third motion to continue the trial to allow him to procure an
expert witness to rebut Expert’s testimony constituted an abuse
of discretion and prejudiced his trial. We review the grant or
denial of a motion to continue under an abuse of discretion
standard. State v. Tolano, 2001 UT App 37, ¶ 5, 19 P.3d 400.
ANALYSIS
I. Expert Witness Testimony
¶25 Peraza contends the district court exceeded its discretion
by admitting Expert’s testimony without fulfilling its
gatekeeping role under rule 702 of the Utah Rules of Evidence.
He argues the court “failed to examine whether [Expert’s]
testimony and opinions were based upon principles and
methods that were reliable, that they were based upon sufficient
facts or data, and had been reliably applied to the facts” of this
case.
¶26 Rule 702 provides that a witness may testify as an expert
if that person “is qualified as an expert by knowledge, skill,
experience, training, or education” and “the expert’s scientific,
technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue.”
20160302-CA 12 2018 UT App 68State v. Peraza
Utah R. Evid. 702(a). An expert’s “scientific, technical, or other
specialized knowledge” must meet “a threshold showing that
the principles or methods that are underlying in the testimony
(1) are reliable, (2) are based upon sufficient facts or data, and
(3) have been reliably applied to the facts.” Id. R. 702(b). This
threshold showing “is satisfied if the underlying principles or
methods, including the sufficiency of facts or data and the
manner of their application to the facts of the case, are generally
accepted by the relevant expert community.” Id. R. 702(c).
¶27 District courts are assigned the duty of “gatekeeper” and
are responsible for preventing the admission of unreliable expert
testimony. State v. Jones, 2015 UT 19, ¶ 21, 345 P.3d 1195. Even if
the testimony satisfies rule 702, the court must also “determine
whether the proffered scientific evidence will be more probative
than prejudicial as required by rule 403 of the Utah Rules of
Evidence.” State v. Crosby, 927 P.2d 638, 641 (Utah 1996).
¶28 A party that intends to call an expert to testify at trial
must demonstrate that the expert meets the requirements of rule
702. Utah Code Ann. § 77-17-13(1)(a) (LexisNexis 2017); 7 see also
State v. Torres-Garcia, 2006 UT App 45, ¶ 11, 131 P.3d 292(explaining the notice requirements under section 77-17-13). In
criminal cases, the first step involves giving notice to the
opposing party “not less than 30 days before trial or 10 days
before the hearing.” Utah Code Ann. § 77-17-13(1)(a). The notice
“shall include the name and address of the expert, the expert’s
curriculum vitae,” and either “a copy of the expert’s report,” “a
written explanation of the expert’s proposed testimony sufficient
to give the opposing party adequate notice to prepare to meet
the testimony,” or “a notice that the expert is available to
cooperatively consult with the opposing party on reasonable
7. Recent amendments to the relevant statutes cited within this
opinion are not substantive and do not affect the outcome of this
appeal. We therefore refer to the most recent edition of the Utah
Code for convenience. See State v. Rackham, 2016 UT App 167, ¶ 9
n.3, 381 P.3d 1161.
20160302-CA 13 2018 UT App 68State v. Peraza
notice.” Id. § 77-17-13(1)(b). If the party seeking to admit expert
testimony “fails to substantially comply with the requirements
of this section, the opposing party shall, if necessary to prevent
substantial prejudice, be entitled to a continuance of the trial or
hearing sufficient to allow preparation to meet the testimony.”
Id. § 77-17-13(4)(a).
¶29 Here, thirty-two days before trial, the State filed a notice
of expert testimony with a copy of Expert’s curriculum vitae and
a list of medical journal articles that she would rely upon for her
testimony. The articles were not readily accessible to the court or
to defense counsel because they were published in journals for
which subscriptions were required.
¶30 Peraza argues the district court had no basis for
determining that rule 702 was satisfied because “the court had
no idea what [Expert’s] testimony was going to be . . . what her
opinions or conclusions were based upon . . . [or whether her]
methods and principles had been reliably applied to the facts in
this case.” 8 We agree.
¶31 In determining that Expert was qualified under rule 702,
the district court relied solely on her curriculum vitae, the list of
article citations, and the State’s “oral assertions about why it
wanted to call [Expert].” There was no information from which
to determine the principles or methods that would form the
basis of Expert’s testimony, or whether her opinions were based
upon sufficient facts or data. See Utah R. Evid. 702(b). The State
did not provide an expert report, gave only a single-sentence
description of the broad subject upon which Expert would
testify, and failed to provide meaningful access to the articles
upon which Expert relied. We agree with Peraza that neither the
court nor defense counsel had “any idea what [Expert’s]
testimony would be or what scientific basis it [was] based upon.”
8. At trial, Expert testified she had not read the transcripts of
interviews, had not reviewed any material involving the case,
and had not interviewed Child or any other witness.
20160302-CA 14 2018 UT App 68State v. Peraza
¶32 We therefore conclude the district court exceeded its
discretion when it admitted Expert’s testimony at trial without
complying with the requirements of rule 702.
¶33 Having made that determination, “we must separately
determine whether the error was prejudicial.” State v. Stefaniak,
900 P.2d 1094, 1096 (Utah Ct. App. 1995). “If there is a reasonable
likelihood that, absent the error, there would have been a more
favorable result for the defendant, then his conviction must be
reversed.” State v. Iorg, 801 P.2d 938, 941 (Utah Ct. App. 1990).
¶34 Peraza argues that the improper admission of Expert’s
testimony constitutes reversible error because of “its
[prejudicial] effect of bolstering [Child’s] trial testimony.” We
agree.
¶35 In State v. Rammel, 721 P.2d 498 (Utah 1986), the district
court admitted a detective’s testimony stating that, “[b]ased on
his experience interviewing several hundred criminal suspects,”
it was not “unusual for [a suspect] to lie” when first
interrogated. Id. at 500. The district court determined that the
detective “was an expert apparently qualified to testify on [a
suspect’s] capacity for telling the truth” as a witness in a criminal
case. Id. Although our supreme court concluded that the
testimony was inadmissible because it “did not relate to [the
suspect-witness’s] character for veracity, but instead invited the
jury to draw inferences about [the suspect-witness’s] character
based upon [the detective’s] past experience with other
suspects,” it held that, “in view of the other evidence supporting
defendant’s conviction,” the admission of the detective’s
testimony was harmless. Id. at 500–01.
¶36 Here, unlike Rammel, there was no “other evidence
supporting [the] conviction.” See id. Instead, this case hinged on
the jury’s assessment of Child’s credibility versus that of Peraza.
See Iorg, 801 P.2d at 941–42. We agree that Expert’s testimony
was prejudicial because it was “clearly calculated to bolster
[Child’s] believability by assuring the jury no credibility problem
was presented by the delay” in reporting the conduct or her
subsequent recantations. See id.; cf. State v. King, 2010 UT App
20160302-CA 15 2018 UT App 68State v. Peraza
396, ¶ 46, 248 P.3d 984 (“When Utah appellate courts reverse for
improper bolstering, they usually do so not only where a case
hinges on an alleged victim’s credibility and there is no physical
evidence, but also where the bolstering was done by an expert
witness.”(internal citation omitted)). Because there was “no[]
other evidence [to support his] conviction beyond that which is
tainted by” Expert’s testimony, “we cannot say that absent the
error there is not a reasonable likelihood of a more favorable
result” to Peraza. 9 See Iorg, 801 P.2d at 942 (citation and internal
quotation marks omitted).
9. Peraza has suggested that Expert’s testimony is the type of
“anecdotal ‘statistical’ evidence” condemned by the Utah
Supreme Court, see State v. Iorg, 801 P.2d 938, 941 (Utah Ct. App.
1990), and implies that, even if the testimony had been properly
and timely disclosed, it should be excluded on its own merits.
We recognize that our supreme court “has continued to
condemn anecdotal ‘statistical’ evidence concerning matters not
susceptible to quantitative analysis such as witness veracity, as
one of the categories of evidence leading to undue prejudice.” Id.801 P.2d at 941 (referencing State v. Dibello, 780 P.2d 1221, 1229
(Utah 1989)); see also State v. Jones, 2015 UT 19, ¶ 50, 345 P.3d
1195 (explaining that the Utah Supreme Court has “condemned
anecdotal statistical evidence when it concerns matters not
susceptible to quantitative analysis,” but determining that
testimony “regarding the percentage of crimes linked to drug
use” was a quantifiable metric (citation and internal quotation
marks omitted)); State v. Rammel, 721 P.2d 498, 501 (Utah 1986)
(“Even where statistically valid probability evidence has been
presented . . . courts have routinely excluded it when the
evidence invites the jury to focus upon a seemingly scientific,
numerical conclusion rather than to analyze the evidence before
it and decide where truth lies.”). But because Peraza includes
this argument only as part of the harmless error analysis, we are
not asked to directly address whether the evidence is admissible
even if it had been timely disclosed, and we therefore decline to
do so.
20160302-CA 16 2018 UT App 68State v. Peraza
¶37 We conclude the district court exceeded its discretion in
admitting Expert’s testimony at trial because the State failed to
comply with Utah Code section 77-17-13 in that it did not
provide an expert report or detailed information with respect to
Expert’s testimony or the scientific basis on which she would
rely. Without this information the requirements under rule 702
were not met, and this error prejudiced Peraza’s trial. We were
not asked to determine whether—assuming that the testimony
had been properly and timely disclosed—the Rule 702
requirements could be met with respect to Expert’s testimony
that “between four and 20 percent” of sex abuse victims recant
their allegations or that the “majority” of these victims delay
disclosures. On remand, if the State seeks to admit testimony
with respect to delayed disclosure and recantations of sex abuse
victims, from either Expert or any other expert witness, it must
provide sufficient information, consistent with this opinion, to
allow the court the opportunity to properly rule on its
admissibility under rule 702.
II. Denial of the Motion to Continue
¶38 Peraza contends the district court abused its discretion
when it denied his motion to continue the trial to allow him to
adequately prepare to cross-examine the Expert and to procure
an expert witness to rebut her testimony. He argues that this
prejudiced his trial because had he been able to procure a
rebuttal expert, there would have been a “reasonable likelihood
that the outcome of the case would have been different.” We
agree.
¶39 As we have discussed, the party seeking to use an expert
witness at trial must disclose certain information. Utah Code
Ann. § 77-17-13 (LexisNexis 2017); see also State v. Torres-Garcia,
2006 UT App 45, ¶ 11, 131 P.3d 292 (explaining the notice
requirements under section 77-17-13). If the party “fails to
substantially comply with [these] requirements . . . the opposing
party shall, if necessary to prevent substantial prejudice, be
entitled to a continuance of the trial . . . sufficient to allow
20160302-CA 17 2018 UT App 68State v. Peraza
preparation to meet the testimony.” Utah Code Ann. § 77-17-
13(4)(a).
¶40 When we review the denial of an appellant’s request for
continuance, we consider four factors:
(1) the extent of appellant’s diligence in his efforts
to ready his defense prior to the date set for trial;
(2) the likelihood that the need for a continuance
could have been met if the continuance had been
granted; (3) the extent to which granting the
continuance would have inconvenienced the court
and the opposing party; and (4) the extent to which
the appellant might have suffered harm as a result
of the court’s denial.
State v. Begishe, 937 P.2d 527, 530 (Utah Ct. App. 1997), superseded
on other grounds by statute as recognized in State v. Roberts, 2018 UT
App 9. We will address each factor in turn.
¶41 First, defense counsel diligently prepared the defense
prior to trial. He timely moved to exclude Expert’s testimony,
highlighting the State’s failure to comply with the notice
requirements and emphasizing the risk of unfair prejudice to the
defense when “‘statistical evidence of matters not susceptible to
quantitative analysis’” is presented at trial because it is
“‘uniquely subject to being used to distort the deliberative
process and skew the trial’s outcome.’” (Quoting State v. Dibello,
780 P.2d 1221, 1229 (Utah 1989).) After the court determined it
would admit Expert’s testimony if necessary, counsel
immediately contacted a social worker for assistance to prepare
to cross-examine Expert. The social worker informed counsel
that Peraza needed his own expert witness for rebuttal, and
counsel requested an “emergency [telephone] conference” to
request a continuance to allow sufficient time to procure an
expert witness and to prepare for cross-examination.
Considering all of these efforts, we conclude that defense
counsel acted diligently.
20160302-CA 18 2018 UT App 68State v. Peraza
¶42 Second, Peraza likely could have been adequately
prepared to meet the expert testimony if the district court
granted his motion to continue the trial. He would have had the
opportunity to procure an expert witness to rebut Expert’s
generalized statement of the probability that a victim’s
recantation of an allegation does not mean that the abuse did not
occur. This expert might also have been able to testify about
whether the “effigy doll” treatment “could have led to the
allegations becoming more violent and much more pronounced
over the years.”
¶43 Third, Peraza’s “right to a fair trial outweighed any
inconvenience to the court [and] the opposing party . . . that may
have been caused by a continuance.” State v. Tolano, 2001 UT
App 37, ¶ 13, 19 P.3d 400. “Although inconvenience to the court
and jury is one of the four factors considered, this court has
specifically held that such an administrative concern is
outweighed by the [defendant’s] right to a fair trial.” Id.(quotation simplified). The district court’s concerns that Child
needed to be considered and that it had to “draw a line
somewhere” were outweighed by Peraza’s right to a fair trial.
¶44 Finally, “the extent to which [Peraza] might have suffered
harm as a result of the court’s denial . . . is the most important
among the factors.” Id. ¶ 14 (quotation simplified). As this court
explained in Tolano, because of the “difficult burden placed on
defendants to establish prejudice in cases such as these,” the
burden is on the State to persuade the court there is no
reasonable likelihood that, absent the error, the outcome would
have been more favorable to the defendant. Id.
¶45 The State has not met that burden here. First, it argues
that Peraza did not seek to continue the trial to procure an expert
witness to rebut Expert’s testimony but instead to discuss
Child’s therapy treatment. This mischaracterizes the type of
expert witness Peraza sought to procure. Defense counsel
argued that, based on Child’s therapy treatments, he needed an
expert witness to rebut Expert’s testimony and to inform the jury
that the type of treatment she received could have influenced her
withdrawal of her recantations and that this treatment “might
20160302-CA 19 2018 UT App 68State v. Peraza
have led to the allegations becoming much more violent and
much more pronounced as the years have gone on.” Essentially,
he argued that this type of treatment has been shown to affect
the description of the alleged abuse.
¶46 The State also argues that the motion’s denial did not
prevent Peraza from “‘put[ting] forward the only defense he
had’” or from putting on “‘the only testimony potentially
effective to his defense.’” (Quoting United States v. Flynt, 756 F.2d
1352, 1361–62 (9th Cir. 1985).) It argues that Peraza “was able to
call [Child’s] credibility into question by highlighting
inconsistencies in her disclosures, including her recantation and
then withdrawal of the recantation.” But this argument is not
persuasive and we find no support for it in Utah case law.
Compare Flynt, 756 F.2d at 1361, with State v. Torres-Garcia, 2006
UT App 45, ¶¶ 18–22, 131 P.3d 292 (explaining that appellate
courts “must determine if the circumstances [in the present case]
are such that a continuance was necessary”). Instead, we
consider the circumstances related to defense counsel’s ability to
sufficiently prepare his defense strategy and to effectively cross-
examine the State’s witnesses. See Torres-Garcia, 2006 UT App 45,
¶¶ 18–22.
¶47 Although Peraza’s counsel was able to call a fact witness,
the private investigator that recorded one of Child’s
recantations, he was nevertheless “sufficiently prejudiced by the
denial of his . . . request for a continuance.” Id. ¶ 22. Defense
counsel was able to highlight inconsistencies in Child’s
testimony and was able to present recantations through the
private investigator. But this evidence was undercut by Expert’s
testimony, which should not have been permitted because it
“rehabilitated [Child’s] credibility, without challenge.” And the
harm to Peraza’s trial was compounded when he was unable to
present an expert witness whose testimony, arguably, would
have been given similar weight to Expert’s testimony. See id.
Although counsel was able to elicit some concessions from
Expert, the jury would have benefited from the opportunity to
weigh Expert’s testimony with a second expert from the defense.
Ultimately, Peraza’s ability to put forward his best defense was
materially hampered by the denial of the motion to continue to
20160302-CA 20 2018 UT App 68State v. Peraza
procure his own rebuttal expert. Under these circumstances, the
State has failed to meet its burden of persuading this court that
Peraza was not prejudiced by the denial of his motion to
continue.
¶48 We conclude the district court exceeded its discretion
when it denied Peraza’s motion to continue the trial to
adequately prepare to cross-examine the Expert and to procure
an expert witness to rebut her testimony. 10
CONCLUSION
¶49 We conclude the State failed to satisfy the notice
requirements under Utah Code section 77-17-13 when it failed to
provide an expert report or other written explanation
articulating the scope of Expert’s testimony and therefore the
district court exceeded its discretion when it admitted Expert’s
testimony at trial without sufficient information to satisfy rule
702 of the Utah Rules of Evidence. The court also exceeded its
discretion when it denied Peraza’s motion to continue based on
10. Peraza also contends that the error in admitting Expert’s
testimony at trial, along with the erroneous denial of his motion
to continue, constitutes grounds for reversal under the
cumulative error doctrine because “[t]he close relationship
between these two rulings and the effect they had upon the
evidence presented” were prejudicial. Generally, a party will
invoke the cumulative error doctrine where “errors committed
during the course of [the] trial were harmless individually, [but]
were cumulatively harmful.” State v. Dunn, 850 P.2d 1201, 1229
(Utah 1993). Under this doctrine, we will reverse only if “the
cumulative effect of the several errors undermines our
confidence that a fair trial was had.” Id. (quotation simplified). In
this case, both errors were independently prejudicial and each
warranted a reversal and new trial. Therefore, the cumulative
error doctrine does not apply. But viewing the two harmful
errors together, we are even more confident in our
determination that Peraza was denied a fair trial.
20160302-CA 21 2018 UT App 68State v. Peraza
the State’s failure to comply with section 77-17-13. Neither of
these errors was harmless. We therefore vacate Peraza’s
convictions and remand to the district court for a new trial
consistent with this opinion.
20160302-CA 22 2018 UT App 68