State v. Hatch , 2019 UT App 203 ( 2019 )

2019 UT App 203THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
CHAD MICHAEL HATCH,
Appellant.
Opinion
No. 20180622-CA
Filed December 12, 2019
Eighth District Court, Vernal Department
The Honorable Edwin T. Peterson
The Honorable Clark A. McClellan
No. 151800761
Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Marian Decker,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.
ORME, Judge:
¶1 Chad Michael Hatch appeals his convictions for one count
of aggravated sexual abuse of a child, two counts of sodomy on a
child, and one count of attempted aggravated sexual abuse of a
child, all first degree felonies. He argues that various instances of
ineffective assistance of counsel and trial court error entitle him
to reversal and a new trial. We affirm.
State v. Hatch
BACKGROUND 1
The Abuse
¶2 In 2007, when Hatch’s stepdaughter (Victim) was
approximately seven years old, Hatch drove her out of town and
pulled over in a deserted area. Victim testified that Hatch
claimed he “just wanted to spend time with [her]” and “show
[her] something that his friend and daughter did.” Hatch then
told Victim to “take off [her] clothes,” which she did, and he
proceeded to “lick[] and touch[] [Victim’s] vagina.” This lasted
for “more than a minute” until Victim’s mother (Mother) texted
Hatch that dinner was ready. Hatch told Victim to get dressed
and “not to tell anyone” about what had happened, and they
returned home.
¶3 A while later, when Victim was “[a]round the same age”
and while Hatch was home alone with Victim, he asked her “to
return the favor.” Hatch then “pulled down his pants” and told
Victim to “lick his penis,” which she did “[b]ecause [she] didn’t
want him to get mad.”
¶4 On another occasion, when Victim was still around the
same age, Hatch told Victim’s brother (Brother) “to go clean up
dog poop” outside, and as Brother left, Hatch locked the door
behind him. Hatch then took Victim to his bedroom, put on a
pornographic movie showing “a naked woman and man . . .
have sex” and told Victim to get undressed, which she did. 2
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
2. At the time of trial, Victim could not remember whether she
had removed her underwear or whether Hatch was also
undressed.
20180622-CA 2 2019 UT App 203State v. Hatch
Hatch then laid on the bed next to Victim until Brother, who had
finished his poop-scooping task, began knocking loudly on the
door. Hearing Brother, Hatch stopped the pornographic movie
and told Victim “to get dressed.”
¶5 While cleaning up after the dog was “one of the chores
that [Brother] had to do,” he specifically remembered this
occasion and that it happened sometime “between 2007 [and]
2008.” He remembered it so clearly because, when he had
finished, he went “to open the door, and the door was locked,”
which was not typical. He “knocked on the door and nobody
came, so [he] started slamming on the door and . . . screaming.”
As he “was a little kid,” it “frustrated” him. He “started crying
because [he] didn’t know what to do.” After “knocking and
banging on the door,” “[i]t took a while” until Hatch let Brother
back into the house.
¶6 Victim also testified that a few years later, when she was
around 11 or 12 years old, she was alone with Hatch in his
bedroom, and Hatch showed her a shoebox full of pornographic
magazines. While they were looking at the magazines, Hatch
told Victim that she “could go in the bathroom and pleasure
[her]self,” which she did not do. Mother, who later learned of
this incident, confirmed that it occurred sometime during the
“warmer” months of 2011.
¶7 When Victim was approximately thirteen years old, she
wrote about the abuse by Hatch in her journal and later shared
the entries with Brother and Mother, at which point the police
were called. Victim had told Mother about the incidents earlier,
but Mother “didn’t do anything about it because [she] was
scared, [she] didn’t know what to do, and [she] honestly had not
believed [Victim] at the time.” 3
3. Mother did take Victim to a doctor for a checkup soon after
Victim’s earlier disclosure, but she did not call the police at that
(continued…)
20180622-CA 3 2019 UT App 203State v. Hatch
¶8 Following a police investigation, the State charged Hatch
with aggravated sexual abuse of a child (count 1), sodomy
upon a child (count 2), another act of sodomy upon a child
(count 3), and attempted aggravated sexual abuse of a child
(count 4)—all first degree felonies. The State also charged Hatch
with dealing in material harmful to a minor (count 5), a third
degree felony.
Hatch’s Claimed Absence From Trial
¶9 On the morning trial was to begin, a discussion was
held in the trial court’s chambers with Hatch’s trial counsel
and the prosecutor both present but with Hatch absent. During
the in-chambers discussion, the following exchange took place:
[Trial counsel]: Let me say one thing that I’m going
to do different today than I usually do. Usually
when I do a trial, when we come back with the . . .
potential jurors, I don’t bring my client in. But I am
going to this time, and usually I don’t like to do it
for a strategic reason, but last time we had a trial
we all talked about some case law that says that it’s
reversible error if you don’t bring the client in . . . .
[Trial court]: Oh. I am delighted to have your client
here. . . .
[Trial counsel]: Well, the only reason I’m saying
this is because . . . I don’t like to bring my client in,
(…continued)
time. Mother testified that she “was manipulated to believe that
[her] kids were lying to [her],” but after separating from Hatch,
she came to believe Victim’s accounts of abuse because she
“realize[d] things that [she] did not realize when [she] was with
[Hatch].”
20180622-CA 4 2019 UT App 203State v. Hatch
and I have my own reasons for it, but because of
my client’s personality and because of the case law,
I am bringing him in this time. Does that make
sense?
[Trial court]: Absolutely. I’m all good with that. As
a matter of fact, I noted he wasn’t here today and
he had an absolute right to be here during the
entire proceeding.
Trial counsel, the court, and the prosecutor then proceeded to
discuss prospective evidence, jury instructions, and proposed
voir dire questions. Following this discussion, the court took a
recess.
¶10 After the recess, the court reconvened the proceedings
in the courtroom. The jury pool was brought in, and the
court proceeded to administer an oath, asked preliminary
voir dire questions, and gave the jury pool opening instructions.
While the minutes of the day’s trial, prepared by the court
clerk, indicate that Hatch was present, the trial transcript
itself contains no mention of Hatch for the first few minutes of
the proceedings in the courtroom. Eventually, however,
when the court asked the participants on each side to introduce
themselves, trial counsel introduced Hatch to the prospective
jurors, and the court greeted Hatch by saying, “Hello, Mr.
Hatch. Good morning.” Prior to that on-the-record introduction,
the court had asked the members of the jury pool to
briefly introduce themselves and had asked a few
preliminary questions to determine whether the panelists met
the statutory qualifications to sit on a jury. Following that
on-the-record introduction, the court proceeded with the
remainder of the voir dire process. After asking questions of the
jury pool in the courtroom, the court allowed individual
questioning of prospective jurors in chambers, but the record is
clear that Hatch was present during those in-chambers
interviews.
20180622-CA 5 2019 UT App 203State v. Hatch
Grandfather’s Testimony
¶11 By way of a pretrial motion in limine, trial counsel
sought to admit “false accusations [that Victim] has
made against [Brother] concerning sexual abuse.” Specifically,
trial counsel argued, quoting State v. Martin, 1999 UT 72,
984 P.2d 975, that nothing in rule 412 of the Utah Rules of
Evidence “would exclude evidence of an allege[d] rape victim’s
previous false allegations of rape [because] [e]vidence of a false
accusation would be relevant to [Victim’s] credibility.” See id.
¶ 16.
¶12 In a pretrial hearing, trial counsel alleged that Victim had
told Hatch’s father (Grandfather) 4 that Brother “inappropriately
touched” her, and she was interviewed by the Division of Child
and Family Services (DCFS) in connection with this allegation
but denied the allegation. Trial counsel argued that the
testimony should “be admissible because it goes to the
credibility of the accuser” and although rule 412 generally
prohibits evidence of a victim’s past sexual history, the rule does
not prohibit evidence of Victim’s allegation and recantation
“because . . . it’s a false allegation [and] 412 doesn’t cover that.”
Trial counsel also argued that under rule 608(c) of the Utah
Rules of Evidence, “any evidence is admissible that shows bias,
prejudice, or motive.” Trial counsel further alleged that Hatch
“was reported and charged because [Grandfather] had turned
[Brother] in” and, in response, Brother told the police about
Victim’s journal entries detailing Hatch’s abuse of her. Trial
counsel then asked for the court’s permission to call as witnesses
Grandfather and the DCFS worker who interviewed Victim
about Victim’s claim of abuse by Brother and her denial of the
allegation.
4. We note that Hatch’s father is not Victim’s biological
grandfather, but we refer to him as Grandfather for ease of
reference.
20180622-CA 6 2019 UT App 203State v. Hatch
¶13 The court declined to rule on the motion at that time,
stating that it could not “rule on things that haven’t happened
yet” and that all trial counsel had produced was “speculative . . .
evidence.” The court informed trial counsel that it could not
foretell “what will or will not be hearsay” but that they could
revisit the issue during trial, “outside the presence of the jury.”
¶14 During opening statements, trial counsel told the jury that
Victim had told Grandfather that Brother had sexually abused
her. The State objected, and at a sidebar conference, trial counsel
insisted that the court “ruled it could come in.” The court stated
that it “did not” so rule and that it had only “ruled that if [trial
counsel] could get that information in” under some rule, then it
could come in. The court continued:
I had not ruled whether or not [Grandfather] could
testify as to what a witness said, because it is
hearsay, and I’ve already [ruled] that [it is
inadmissible hearsay] unless there’s an
opportunity to present that evidence through an
exclusion to the hearsay rule. So, that is
inappropriate to present to the jury at this point in
time. It’s an out of court statement, . . . and you
were given the logs from [DCFS] and it shows that
[Victim] stated she had never made those
statements, and nobody else said she made the
statements, with the possible exception of
[Grandfather]. That would make his testimony
hearsay and inadmissible.
Trial counsel then argued that it was admissible as a prior
inconsistent statement, but the court ruled that he could not
mention it in his opening statement, explaining, “If there is an
issue of prior inconsistent statement, I certainly haven’t heard it
yet because I’ve got no evidence in front of me. I have to hear the
evidence.”
20180622-CA 7 2019 UT App 203State v. Hatch
¶15 While cross-examining Victim, trial counsel asked if she
had told Grandfather about Brother sexually abusing her. Victim
responded that she had not. But Victim did state that she
remembered going to the Children’s Justice Center where a
DCFS worker interviewed her and asked if Brother had touched
her inappropriately. 5 Trial counsel did not inquire further into
this incident. On redirect, Victim stated that she had “never
raised [an] allegation” against Brother.
¶16 At the close of the State’s case, trial counsel argued that
Grandfather should be allowed to testify under rules 613 and 801
of the Utah Rules of Evidence. The court ruled that Grandfather
could not testify, stating,
Well, the difficulty that the Court has, that I’ve had
all along with this particular theory, is that it was
not raised on direct. [Trial counsel], you asked her
the question, you got your answer. You may not
rebut questions that you raised on your own. The
issue was never raised by the state. Okay? So you
can’t ask somebody something that you think that
somebody else is going to testify to, and put that
on the record, and say, see, it’s inconsistent, I want
to rebut it. I will not allow that testimony.
Count 5’s Dismissal
¶17 Additionally, just before trial began, trial counsel moved
to dismiss count 5—the count charging Hatch with dealing in
material harmful to a minor, associated with the incident in
which he allegedly showed Victim a shoebox full of
pornographic magazines—arguing that “[un]like the other
counts” it “has a statute of limitations on it.” The court told
5. This DCFS interview occurred on a separate occasion from the
interview in which Victim revealed the abuse by Hatch.
20180622-CA 8 2019 UT App 203State v. Hatch
counsel that he “should’ve brought this up beforehand,” and
counsel responded that he was allowed to “bring it up [at] any
time” and just “didn’t notice this . . . until now when I was
reviewing it again.” There was then some discussion between
the court and counsel concerning when count 5 was alleged to
have occurred and whether the statute actually barred the State
from charging it. The court noted that the initial information was
filed on October 23, 2015, and, based on the four-year statute of
limitations, see Utah Code Ann. § 76-1-302(1)(a) (LexisNexis
2017), 6 the evidence would have to show that the actions
underlying count 5 occurred after October 23, 2011. But the court
declined to rule on the issue because, at that point, there was no
clear evidence of when the alleged incident took place. Still, the
court informed counsel that it wanted the issue “looked into”
and that counsel needed to “figure [it] out and make the motion
when [he’s] got it all lined up.”
¶18 Later that day, when Victim testified about the episode
underlying count 5, trial counsel objected to the testimony,
arguing in the presence of the jury that “[i]f she’s going to talk
about viewing porn . . . when she was 11 or 12, then that’s
outside the statute of limitations for that offense.” The court
responded that “[i]t may well be. Anyway, the evidence is what
the evidence is.” The court concluded by observing that the
State’s “questions are appropriate.” The court then overruled the
objection, agreeing with the State that they could “take [it] up on
another occasion.” Later, Mother testified that this incident
occurred sometime during the “warmer” months of 2011.
¶19 On the second day of trial, out of the presence of the jury,
trial counsel moved for a directed verdict on count 5, again
raising the statute of limitations defense. This time the court
6. Because the statutory provisions in effect at the relevant time
do not differ in any way material to our analysis from those now
in effect, we cite the current version of the Utah Code for
convenience.
20180622-CA 9 2019 UT App 203State v. Hatch
agreed with trial counsel and granted the motion. It ruled that
“this particular charge can’t go forward” because Mother had
testified that the incident occurred “during the warm weather in
2011” and, “going on [the court’s] general experience, it’s not
really warm in October.” This meant that the incident took place
before October 23, 2011, and that the four-year statute of
limitations barred count 5.
¶20 After granting trial counsel’s motion for a directed verdict
on count 5, the trial court stated, “I think I’m going to need to
give an instruction” informing the jury that “[n]o evidence
[from] count [5] should be considered in weighing the other
evidence that was presented.” The State then interjected that “it
might be helpful . . . if the jury at least has some sort of base
explanation of why it was dismissed so it’s not just sort of this
lingering question out there.” The court responded that it
“certainly [could] add the statute of limitations” explanation to
the instructions. Trial counsel did not object. The court
eventually gave instruction 20, which informed the jury that
Chad Hatch was charged in Count 5 with Dealing
in Harmful Material to a Minor by an Adult, on or
between August 23, 2005 and August 23, 2014. The
evidence before the Court was not sufficient to
establish the alleged conduct occurred within the
time frame established by the Utah Statute of
Limitations for that charge and therefore was
dismissed by the Court.
You are to disregard any facts presented to
establish that charge and are not to consider those
facts in your deliberations regarding the remaining
charges.
¶21 During closing arguments, trial counsel told the jury that
he usually did not “like to make a big deal about” evidence the
jury had heard and been instructed to forget as “it just refreshes
it more in your mind.” Trial counsel then informed the jurors
20180622-CA 10 2019 UT App 203State v. Hatch
that he was going to go against this usual practice, explaining
that “you’ve heard a lot of stuff in this trial that you shouldn’t
have heard. And the only way . . . that I’m going to actually get
you to try to do this is for me to bring it up.” He then implored
the jurors to get the evidence about the “pornographic material”
in the shoebox “out of your mind, don’t talk about it amongst
each other, and that has nothing to do with this case.” He
concluded, “I’d ask you to please do that, I know it’s difficult,
and like I said, usually I don’t keep ringing the bell, but there
was such an amount of material about that, that I think the only
way you can really do it is to try to consciously not do it.”
¶22 The jury convicted Hatch on all the remaining counts.
After acquiring new counsel, Hatch moved for a new trial. He
asserted that he received ineffective assistance from his trial
counsel, that the court erred in failing to require his presence
during critical stages of the proceedings, and that the court erred
in not allowing Grandfather’s testimony. A different judge heard
arguments on the motion for a new trial and denied the motion. 7
Hatch appeals.
ISSUES AND STANDARDS OF REVIEW
¶23 Hatch argues that trial counsel provided him with
ineffective assistance in five respects. First, Hatch contends that
trial counsel was ineffective for failing “to raise a crucial statute
of limitation defense relating to Count [5] . . . until the morning
of [the] first day of trial.” Second, Hatch asserts that trial counsel
was ineffective for failing to object to instruction 20, which
informed the jury that count 5 was dismissed on statute of
limitations grounds. Third, Hatch argues that trial counsel
provided ineffective assistance when he “failed to require the
7. To avoid confusion, we refer to the court that conducted the
trial as the “trial court” and the court that handled the motion
for a new trial as the “district court.”
20180622-CA 11 2019 UT App 203State v. Hatch
presence of [Hatch] during critical stages of the proceedings.”
Fourth, Hatch contends that trial counsel was ineffective for
“fail[ing] at any point to move to merge Counts [1] and [2].”
Finally, Hatch argues that trial counsel was ineffective for
“failing to move for a directed verdict or to dismiss Count [4] . . .
for insufficient evidence.”
¶24 “When a claim of ineffective assistance of counsel is
raised for the first time on appeal, there is no lower court ruling
to review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of
law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587(quotation simplified). “However, if a trial court has previously
reviewed the ineffective assistance of counsel claim, an appellate
court is free to make an independent determination of a trial
court’s conclusions, though the factual findings of the trial court
shall not be set aside on appeal unless clearly erroneous.” State v.
Kozlov, 2012 UT App 114, ¶ 29, 276 P.3d 1207 (quotation
simplified).
¶25 Hatch further argues that the district court incorrectly
ruled that the trial court did not err when it did not “require
[Hatch’s] presence . . . during critical stages of the proceedings.”
Because Hatch first raised this issue in a motion for a new trial
when he could have raised it during trial, this issue is
unpreserved. 8 He argues that we can reach the issue, although
8. Our Supreme Court has held “that an objection that could
have been raised at trial cannot be preserved [for appeal] in a
post-trial motion.” State v. Fullerton, 2018 UT 49, ¶ 49 n.15, 428
P.3d 1052. See State v. Larrabee, 2013 UT 70, ¶ 16, 321 P.3d 1136(“[A]llowing defendants to preserve issues . . . through
[post-trial motions] would directly contradict the purposes of the
preservation rule.”); State v. Fredrick, 2019 UT App 152, ¶ 21, 450
P.3d 1154 (holding that raising an issue in a post-trial motion is
“insufficient to preserve the issue” where, during trial, appellant
was aware of the basis for an objection). See also Fullerton, 2018
(continued…)
20180622-CA 12 2019 UT App 203State v. Hatch
unpreserved, pursuant to the plain error doctrine. To prevail,
Hatch must demonstrate that “(i) an 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 (quotation simplified). See
State v. King, 2006 UT 3, ¶ 13, 131 P.3d 202 (“We have
consistently held that a defendant who fails to preserve an
objection at trial will not be able to raise that objection on appeal
unless he is able to demonstrate either plain error or exceptional
circumstances.”).
¶26 Hatch also argues that the district court incorrectly ruled
that the trial court was not in error for “refus[ing] to allow
impeaching testimony which would have contradicted [Victim’s]
testimony.” “When the trial court denies a motion . . . for a new
trial, we review that decision for an abuse of discretion, but we
review the legal standards applied by the trial court in denying
such a motion for correctness.” State v. Squires, 2019 UT App 113,
¶ 23, 446 P.3d 581 (quotation simplified).
ANALYSIS
I. Count 5 and Instruction 20
¶27 “To ensure a fair trial, the Sixth Amendment of the U.S.
Constitution guarantees [a criminal defendant] the right to
effective assistance of counsel.” State v. Campos, 2013 UT App
213, ¶ 23, 309 P.3d 1160. To prevail on an ineffective assistance of
counsel claim, a defendant must show that (1) “counsel’s
(…continued)
UT 49, ¶ 49 n.15 (“We reaffirm our holding in Larrabee and
emphasize that an objection that could have been raised at trial
cannot be preserved in a post-trial motion.”).
20180622-CA 13 2019 UT App 203State v. Hatch
performance was deficient” and (2) “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,
687 (1984).
¶28 Counsel’s performance is deficient when it falls “below an
objective standard of reasonableness,” id. at 688, which requires
a defendant to “overcome the strong presumption that his trial
counsel rendered adequate assistance by persuading the court
that there was no conceivable tactical basis for counsel’s
actions,” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (quotation
simplified). This review “must be highly deferential” because “it
is all too easy for a court, examining counsel’s defense after it
has proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable.” Strickland, 466 U.S. at
689. Thus, counsel’s performance is “deficient only if it can be
said that no objectively competent attorney would have adopted
the complained-of strategy.” State v. Hull, 2017 UT App 233,
¶ 17, 414 P.3d 526. See also Premo v. Moore, 562 U.S. 115, 124
(2011) (stating that “the relevant question under Strickland” is
whether “no competent attorney” would have taken the
complained-of course of action).
¶29 After a defendant overcomes the high threshold of
demonstrating that his counsel performed deficiently, he must
next show “that the deficient performance prejudiced the
defense.” Strickland, 466 U.S. at 687. Counsel’s deficient
performance is prejudicial if “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “A
defendant’s inability to establish either element defeats a claim
for ineffective assistance of counsel,” State v. Reid, 2018 UT App
146, ¶ 19, 427 P.3d 1261, and “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice
. . . that course should be followed,” Strickland, 466 U.S. at 697.
¶30 Hatch asserts that he received ineffective assistance from
trial counsel when counsel, by not earlier moving to dismiss
count 5, allowed the jury to hear Victim’s testimony that Hatch
20180622-CA 14 2019 UT App 203State v. Hatch
showed her a shoebox full of pornographic magazines and
invited her to “pleasure” herself. Hatch argues that he was
prejudiced when the jury heard this evidence because “[i]t
painted [him] as encouraging [Victim] to engage in perversion
and as inculcating an appetite for pornographic material, clearly
giving the jury the impression that [he] was not only a sexual
predator, but simply an awful person,” causing the jury to
abandon “calm and logical reasoning.” Hatch also argues that by
informing the jury in instruction 20 of the reason count 5 was
dismissed, the court “alerted the jury to the real likelihood that
Count [5] had merit, was being dismissed for purely technical
reasons, and in spite of the Court’s cautionary language, a
reasonable juror could conclude that perhaps it should be
considered as evidence of [Hatch’s] character.” Assuming,
without deciding, that trial counsel performed deficiently, these
claims fail because Hatch has not shown prejudice.
¶31 The jurors heard far more inflammatory and graphic
testimony about Hatch than what they heard regarding count 5.
They heard that Hatch drove Victim to a deserted area alone and
had her “take off [her] clothes,” after which he “licked and
touched [her] vagina.” The jury also heard that Hatch, on
another occasion, asked Victim to “return the favor” and made
her “lick his penis.” The jury also heard evidence that Hatch
took Victim into his bedroom, put on a pornographic movie, and
told her to undress. Thus, the jury heard testimony about Hatch
that was far more egregious than the testimony about the
pornographic magazines. Indeed, the testimony about the
shoebox full of explicit magazines was, in some ways, the least
damning of all the evidence the jury heard because that evidence
did not involve any sexual touching of Victim. Hatch simply
cannot show that if the jury had not heard about the magazines,
“there is a reasonable probability that . . . the result of the
proceeding would have been different” with respect to the four
counts that were not dismissed and on which he was convicted.
See Strickland, 466 U.S. at 694.
20180622-CA 15 2019 UT App 203State v. Hatch
¶32 Additionally, any risk of prejudice from the jury having
heard the factual basis of count 5 was reduced through
instruction 20, which directed the jury to disregard those facts
and to not consider them in their deliberations. See State v.
Padilla, 2018 UT App 108, ¶ 26, 427 P.3d 542 (“Curative
instructions are ordinarily presumed on appeal to be effective.”)
(quotation simplified). Trial counsel further minimized any risk
of prejudice when, in his closing argument, he implored the
jurors not to discuss the facts related to count 5 and to try to
“consciously” avoid thinking about them when rendering their
verdict. Instruction 20, combined with counsel’s closing
argument, clearly directed the jurors to disregard anything they
heard regarding count 5, which we presume they did. See State v.
Harmon, 956 P.2d 262, 273 (Utah 1998) (stating that it is
presumed that juries follow the instructions they are given
unless the defendant can show that “there is an overwhelming
probability that the jury [was] unable to follow the court’s
instruction and a strong likelihood that the effect of the evidence
would be devastating to the defendant”) (quotation simplified).
And given the nature of the other evidence the jury heard, any
potential error in the jury hearing the factual basis underlying
count 5 was not “too prejudicial for [the] curative instruction[] to
mitigate.” See id. (quotation simplified).
¶33 By the same token, Hatch cannot show prejudice from the
jury hearing the factually accurate explanation for why count 5
was dismissed. Especially given that trial counsel interposed his
statute of limitations objection in the jury’s presence, we cannot
see how Hatch was prejudiced by having the jury learn that this
was, indeed, the reason for count 5’s dismissal. And as
previously discussed, any evidence regarding count 5 was
unlikely to have changed the jury’s verdict on the remaining
counts because the evidence properly before the jury was far
more incriminating than anything the jury heard about count 5.
¶34 Ultimately, Hatch cannot show that it is “a demonstrable
reality and not a speculative matter” that he was prejudiced by
the jury hearing the facts underlying count 5 and the reason
20180622-CA 16 2019 UT App 203State v. Hatch
count 5 was dismissed. See State v. Nelson, 2015 UT 62, ¶ 10, 355
P.3d 1031 (quotation simplified).
II. Hatch’s Absence
¶35 With regard to Hatch’s absence from a portion of the
proceedings on the morning his trial got underway, Hatch
asserts that he received ineffective assistance when trial counsel
failed to ensure his presence. Hatch also argues that the trial
court plainly erred in not requiring his presence during those
proceedings. To prevail on these claims, Hatch must show that,
absent trial counsel’s deficient performance or the trial court’s
obvious error, there was a reasonable likelihood of a more
favorable result. See State v. Ellifritz, 835 P.2d 170, 174 (Utah Ct.
App. 1992) (“When [a] defendant raises the issues of both plain
error and ineffective assistance of counsel, a common standard is
applicable. The common standard exists because plain error
requires a showing that absent the error, there is a substantial
likelihood of a more favorable outcome for defendant, and
similarly, the ineffective assistance standard requires a showing
that but for ineffective assistance of counsel, the result would
likely have been different for defendant.”) (quotation
simplified).
¶36 In the present case, Hatch does not demonstrate prejudice
but instead asks us to presume that he was prejudiced because
his constitutional rights were violated, amounting to “structural
error.” But because Hatch raised this claim for the first time in a
motion for a new trial, he did not preserve this claim for appeal,
State v. Fullerton, 2018 UT 49, ¶ 49 n.15, 428 P.3d 1052, and is
required therefore to establish plain error on the part of the trial
court, one element of which is prejudice. And when it comes to
ineffective assistance of counsel, we will not presume prejudice
because it is the defendant’s burden to show how counsel’s
deficient performance prejudiced him. This holds true even
though Hatch argues that his constitutional rights were violated,
as “unpreserved federal constitutional claims are not subject to a
heightened review standard but are to be reviewed under our
20180622-CA 17 2019 UT App 203State v. Hatch
plain error [and ineffective assistance of counsel] doctrine[s],”
which require a showing of prejudice. State v. Bond, 2015 UT 88,
¶ 44, 361 P.3d 104. See id. ¶ 46 (“[E]ven federal constitutional
errors so serious as to be deemed structural are subject to
preservation requirements.”).
¶37 The State concedes, and the record shows, that Hatch was
indeed absent for the in-chambers discussion held just before
trial. But the record does not support Hatch’s argument that he
was not present during jury selection, including the in-chambers
interviews of prospective jurors.9 Regardless of whether he was,
in fact, present during jury selection, Hatch does not attempt to
demonstrate that he was prejudiced.
¶38 To prevail on his claim that he was prejudiced by not
being present during jury selection, Hatch must show that an
“actually biased juror” sat on the jury. See State v. King, 2008 UT
54, ¶ 47, 190 P.3d 1283. Hatch makes no effort to show that a
9. At the beginning of the proceedings in the courtroom, the jury
pool was brought in and the trial court provided preliminary
instructions and administered an oath. To determine if anyone in
the jury pool knew anyone on the prosecution or defense team,
the court had them introduce themselves to the pool. At this
point, the court greeted Hatch and then proceeded with
questioning the prospective jurors. There is no indication in the
record that Hatch left the courtroom during this questioning.
After the court’s questioning, the court allowed trial counsel and
the State, in chambers, to make any challenges they had to any of
the prospective jurors or to bring them in for further
questioning. When trial counsel began his questioning, he said,
“I wanted to just state for the record that [Hatch] is in the
chambers.” Again, there is nothing in the record to indicate that
Hatch was directed to leave or left of his own accord during this
portion of jury selection. Based on our review of the record,
Hatch’s assertion that he was not present during jury selection is
incorrect.
20180622-CA 18 2019 UT App 203State v. Hatch
biased juror sat, nor is there any suggestion in the record that
any of the jurors were biased. Thus, Hatch has not shown that he
was prejudiced by his alleged absence from jury selection.
Regarding Hatch’s absence from the preliminary discussion in
chambers, Hatch has likewise made no effort to show he was
prejudiced, i.e., he has not proven that, had he been present
during the discussion, he would have directed trial counsel to
take a course of action that would have resulted in a reasonable
probability of a different outcome. See Strickland v. Washington,
466 U.S. 668, 694 (1984). Because Hatch has not established
prejudice from trial counsel’s, or the trial court’s, alleged error in
not requiring him to be at every part of the proceedings, these
claims are unavailing.
¶39 Hatch also asks us to remand this case pursuant to rule
23B of the Utah Rules of Appellate Procedure “in order to
establish whether [Hatch] was purposely absented from the trial
proceedings . . . as a consequence of the direction of his defense
counsel.” For a rule 23B motion to be granted, a defendant must
meet a four-part test. “First, remand is not appropriate where the
alleged facts are already in the record.” State v. Griffin, 2015 UT
18, ¶ 18, 441 P.3d 1166. “Second, the defendant must provide
allegations of fact that are not speculative.” Id. ¶ 19. “Third, the
allegations must show deficient performance. In other words,
the nonspeculative facts must focus on why counsel’s
performance was deficient.” State v. Gunter, 2013 UT App 140,
¶ 16, 304 P.3d 866 (quotation simplified). Fourth, “the affidavits
supporting the motion must also allege facts that show the
claimed prejudice suffered by the appellant as a result of the
claimed deficient performance.” Id. (quotation simplified). See
Utah R. App. P. 23B(a). “And the proof that such acts or
omissions prejudiced him must be a demonstrable reality and
not a speculative matter.” State v. Nelson, 2015 UT 62, ¶ 10, 355
P.3d 1031 (quotation simplified). If a defendant fails to meet one
or more of these requirements, his motion will be denied.
¶40 In support of his rule 23B motion, Hatch provides only his
own affidavit claiming that he was not present during the
20180622-CA 19 2019 UT App 203State v. Hatch
preliminary discussion held in chambers and that he “was not
allowed to be in Court until shortly before” the trial court
greeted him on the record during jury selection. It is clear that
Hatch was absent for the preliminary discussion, and we will
assume, for purposes of this analysis, that Hatch was absent
from jury selection as well. But Hatch’s rule 23B motion fails
because it does not provide nonspeculative facts that
demonstrate prejudice. On the contrary, he again invites us to
presume prejudice because he had a constitutional right to be
present for every minute of the proceedings. But as previously
discussed, because Hatch did not preserve this claim, he must
show prejudice, which we will not presume. Bond, 2015 UT 88,
¶¶ 44, 46.
¶41 Hatch’s affidavit in support of his 23B motion does not
provide any nonspeculative facts suggesting prejudice. All
Hatch asserts is that had he “been present during the subject
proceeding and been consulted or been able to confer with his
counsel about the questions and issues being discussed, different
results may have come about.” He also states in his affidavit that
he “had many . . . questions regarding the . . . jurors which [he]
would like to have explored [and he] would liked to have been
able to observe them as they were individually questioned.”
Hatch’s claim that his inability to ask questions of and observe
the jurors actually harmed his defense is clearly speculative. To
prevail on this claim, Hatch must show “that his counsel’s
actions prejudiced him because those actions allowed the seating
of an actually biased juror.” King, 2008 UT 54, ¶ 47. Hatch has
not done so. He has not provided affidavits in support of his rule
23B motion that assert nonspeculative facts outside the record
suggesting that a biased juror actually sat and, thus, he has not
shown that he was prejudiced by being absent from any part of
jury selection, if he even was absent. Hatch has likewise not
shown that had he been present during the in-chambers
discussion that took place prior to jury selection, he would have
directed trial counsel to take a course of action that would have
resulted in a different outcome. See Strickland, 466 U.S. at 694.
20180622-CA 20 2019 UT App 203State v. Hatch
¶42 For these reasons, Hatch’s claim that his constitutional
rights were violated by his absence from a portion of the
proceedings is unavailing. And his related rule 23B motion is
denied.
III. Merger of Count 1 and Count 2
¶43 Hatch asserts that he received ineffective assistance when
trial counsel failed to move the court to merge counts 1 and 2—
the counts involving Victim’s claim that he both touched and
licked her vagina after driving her to a deserted area. Hatch’s
principal brief appears to argue that, under Utah Code section
76-1-402(3), counsel should have moved for merger of the counts
because aggravated sexual abuse of a child is a lesser included
offense of sodomy on a child. Hatch claims that “under the facts
of this case, . . . touching the genitals by any part of the body,
including the tongue and of course the hands, amounting to
Aggravated Sexual Abuse, can readily be construed as
constituting an attempt, solicitation, or form of preparation to
commit Sodomy on a Child” and thus is, “by definition, a lesser
included offense.” 10
10. A caption in Hatch’s brief states that “it was ineffective
assistance of counsel in failing to move to merge counts [1] and
[2], involving virtually identical conduct during a single criminal
episode,” but he then proceeds to argue that the offenses should
be merged because aggravated sexual abuse of a child was a
lesser included offense of sodomy on a child under Utah Code
section 76-1-402(3). This caption actually appears to suggest an
argument under subsection (1) that the counts should be merged
because they were part of a “single criminal episode.” Hatch also
appears to advance this argument in his reply brief. But that is
not the argument actually presented in Hatch’s principal brief,
and so we do not address it. See Allen v. Friel, 2008 UT 56, ¶ 8,
194 P.3d 903 (“It is well settled that issues raised by an appellant
in the reply brief that were not presented in the opening brief are
(continued…)
20180622-CA 21 2019 UT App 203State v. Hatch
¶44 Hatch’s argument fails under subsection (3) because
aggravated sexual abuse of a child is not a lesser included
offense of sodomy on a child, and thus trial counsel could not be
ineffective for failing to move to merge the counts under this
theory. Subsection (3) states:
A defendant may be convicted of an offense
included in the offense charged but may not be
convicted of both the offense charged and the
included offense. An offense is so included when:
(a) It is established by proof of the same or less
than all the facts required to establish the
commission of the offense charged; or
(b) It constitutes an attempt, solicitation,
conspiracy, or form of preparation to commit the
offense charged or an offense otherwise included
therein; or
(c) It is specifically designated by a statute as a
lesser included offense.
Utah Code Ann. § 76-1-402(3) (LexisNexis 2017).
¶45 A person commits aggravated sexual abuse of a child if he
or she holds “a position of special trust,” such as “a stepparent,”
and “if, under circumstances not amounting to . . . sodomy on a
child,” or attempted sodomy on a child, he or she “touches the
anus, buttocks, pubic area, or genitalia of any child . . . with the
intent to arouse or gratify the sexual desire of any individual.”
Id. § 76-5-404.1(1)–(2), (4)(h) (Supp. 2019) (emphasis added). In
contrast, sodomy on a child is committed when a person
(…continued)
considered waived and will not be considered by the appellate
court.”) (quotation simplified).
20180622-CA 22 2019 UT App 203State v. Hatch
“engages in any sexual act upon or with a child who is under the
age of 14, involving the genitals or anus of the actor or the child
and the mouth or anus of either person.” Id. § 76-5-403.1(1)
(2017). Thus, aggravated sexual abuse of a child is not a lesser
included offense of sodomy on a child as a matter of simple
definition. 11 The aggravated sexual abuse of a child statute
specifically states that it applies in “circumstances not
amounting to . . . sodomy on a child.” Id. § 76-5-404.1(1) (Supp.
2019). Aggravated sexual abuse of a child is an alternative
charge that the State can bring against a defendant.
¶46 Furthermore, even if aggravated sexual abuse of a child
were a lesser-included offense of sodomy on a child, Hatch was
not “convicted of both the offense charged and the included
offense” as prohibited by subsection (3). See id. § 76-1-402(3)
(2017). The State did not charge Hatch with both sodomy on a
child and aggravated sexual abuse of a child for the same act,
nor was he so convicted. Instead, the State charged Hatch with
sodomy on a child for licking Victim’s vagina and aggravated
sexual abuse of a child for digital penetration with his hands.
Thus, even if Hatch is correct that aggravated sexual abuse of a
child is a lesser included offense of sodomy on a child, his
subsection (3) argument would still be unavailing, given the two
distinct acts for which Hatch was charged, and trial counsel
could not be deficient for not moving the trial court for merger
under this subsection. See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d
546 (“Failure to raise futile objections does not constitute
ineffective assistance of counsel.”).
¶47 It is not until Hatch’s reply brief that he argues that the
counts should have merged under Utah Code section 76-1-402(1)
because they were “essentially the same act under a single
11. Indeed, this point was conceded by Hatch in his motion for a
new trial, in which he stated, regarding the “two possible tests
for determining merger, Count [1] is not a lesser included
offense of Count [2] and that test is inapplicable here.”
20180622-CA 23 2019 UT App 203State v. Hatch
criminal episode.” Because he did not pursue this argument in
his principal brief, but only developed it in his reply brief, we do
not address it. See Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 903.
IV. Directed Verdict or Motion to Dismiss, Count 4
¶48 Hatch argues that trial counsel was ineffective for not
moving for a directed verdict and not bringing a motion to
dismiss, for insufficient evidence to sustain a conviction, on
count 4—the count charging him with attempted aggravated
sexual abuse of a child in connection with the episode in which
he locked Brother out of the house. “In evaluating whether a
motion for directed verdict would be successful, this court
reviews the evidence and all reasonable inferences to be drawn
therefrom, and assesses whether some evidence exists from
which a reasonable jury could find that the elements of the crime
had been proven beyond a reasonable doubt.” State v. Millerberg,
2018 UT App 32, ¶ 12, 414 P.3d 1106 (per curiam) (quotation
simplified).
¶49 To obtain a conviction for attempted aggravated sexual
abuse of a child, the State bore the burden of proving, beyond a
reasonable doubt, that Hatch “engage[d] in conduct constituting
a substantial step toward commission of the crime; and . . .
intend[ed] to commit the crime.” See Utah Code Ann.
§ 76-4-101(1) (LexisNexis 2017). See also United States v.
Resendiz­Ponce, 549 U.S. 102, 107 (2007) (“[M]ere intent to violate
a . . . criminal statute is not punishable as an attempt unless it is
also accompanied by significant conduct.”). Thus, the State had
to prove that Hatch held “a position of special trust” as “a
stepparent” and had the intent to, and took a substantial step
toward, “touch[ing] the anus, buttocks, pubic area, or genitalia
of [Victim]” for the purpose of “arous[ing] or gratify[ing] the
sexual desire of any individual.” Utah Code Ann.
§ 76-5-404.1(1)–(2), (4)(h) (Supp. 2019). “In order for conduct to
constitute a substantial step, there must be more than mere
preparation,” State v. Johnson, 821 P.2d 1150, 1157 (Utah 1991),
and the State must show that the defendant took “a tangible step
20180622-CA 24 2019 UT App 203State v. Hatch
toward commission of a crime that transcends intent, yet fails to
culminate in its planned accomplishment,” State v. Arave, 2011
UT 84, ¶ 30, 268 P.3d 163 (quotation simplified).
¶50 To properly assail this verdict on the basis that it lacked
sufficient evidentiary support, Hatch must show that the State
failed to present enough evidence to allow a jury to conclude,
beyond a reasonable doubt, that (1) his conduct constituted a
substantial step toward the commission of aggravated sexual
abuse of a child and (2) he intended to commit the crime. Hatch
attacks the conviction only on the first ground, arguing that “it
simply cannot be established based upon all inferences which
may reasonably be drawn, that [he] engaged in conduct
constituting a substantial step toward committing an act of
Sexual Abuse of a Child.” He does not argue that there was
insufficient evidence to prove that he had the intent to commit
the crime. 12
¶51 We conclude there was sufficient evidence to support the
jury’s verdict on count 4, as concerns Hatch’s conduct
constituting a substantial step toward the commission of the
crime. The State offered evidence that Hatch locked Brother
outside the home, took Victim into the bedroom where he had
Victim get undressed, laid on the bed with Victim, and began
12. The closest that Hatch comes to arguing that the State
presented insufficient evidence to prove his intent to commit the
crime is a statement that the “evidence yields no more than an
inference that perhaps [he] intended to pursue some sort of
sexual activity with [Victim],” which “is total speculation.” But
Hatch then provides no analysis as to how the evidence did not
show that he had the specific intent to commit the crime.
Accordingly, we only consider whether Hatch’s actions
constituted a substantial step toward committing sexual abuse of
a child and forgo analyzing whether there was sufficient
evidence to show beyond a reasonable doubt that he intended to
commit aggravated sexual abuse of a child.
20180622-CA 25 2019 UT App 203State v. Hatch
playing a pornographic movie. The State also presented
evidence that Hatch told Victim to get dressed and stopped the
film only when Brother tried to get back into the house and was
pounding on the door. The totality of the evidence transcends
“mere preparation” and is sufficient evidence on which a
reasonable jury could find that Hatch took a “tangible step
toward” sexually abusing Victim and that he failed to complete
the crime only because he was interrupted by Brother. See Arave,
2011 UT 84, ¶ 30 (quotation simplified). 13 Thus, trial counsel was
not deficient in forgoing a motion for a directed verdict, or a
motion to dismiss, because it would have been rejected by the
trial court as there was “some evidence” on “which a reasonable
jury could find” that Hatch had taken a substantial step toward
13. This case is distinguishable from State v. Arave, 2011 UT 84,
268 P.3d 163. In Arave, the defendant approached a child riding a
bike on the street; stopped the child “about two feet in front of
him, blocking his way”; and offered to pay the child if he would
let the defendant perform oral sex on him. Id. ¶ 4. When the
child did not respond, the defendant “apologized for ‘grossing
him out’” and left the child, asking him not to tell anyone about
what had happened and reminding him to “‘think about it,
$20.’” Id. The defendant was then charged and convicted of
attempted sodomy on a child. Id. ¶ 6. Our Supreme Court
reversed the conviction, holding that there was insufficient
evidence to show that the defendant’s actions constituted a
substantial step as the defendant never “trapped” the victim and
“did nothing beyond what most any defendants would do when
committing a crime of solicitation.” Id. ¶ 32. Here, Hatch’s
actions surpass those of the defendant in Arave, as Hatch actually
did “trap” Victim alone with him in the home and took actions
far beyond merely soliciting Victim for inappropriate sexual
contact when he had her remove her clothes, turned on a
pornographic film, and laid on the bed with her, all of which
allow a reasonable jury to conclude that Hatch took substantial
steps toward sexually abusing Victim.
20180622-CA 26 2019 UT App 203State v. Hatch
committing aggravated sexual abuse of a child. 14 See State v.
Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (quotation simplified).
V. Impeachment Testimony
¶52 Hatch’s final argument is that the district court abused its
discretion when it ruled that the trial court did not err by barring
Grandfather from testifying that Victim had accused Brother of
molesting her but later recanted.15 See State v. Squires, 2019 UT
App 113, ¶ 23, 446 P.3d 581 (“When the trial court denies a
motion . . . for a new trial, we review that decision for an abuse
of discretion.”) (quotation simplified).
¶53 Rule 412 of the Utah Rules of Evidence “prohibits the
introduction, in certain criminal cases, of ‘evidence offered to
prove that a victim [of sexual misconduct] engaged in other
sexual behavior’ or ‘evidence offered to prove a victim’s sexual
predisposition.’” State v. Jordan, 2018 UT App 187, ¶ 25, 438 P.3d
862 (quoting Utah R. Evid. 412(a)(1)–(2)). “Although rule 412
prohibits the admission of any truthful evidence that involves
actual physical conduct or that implies sexual contact, the rule
does not reach evidence offered to prove allegedly false prior
claims by the victim,” because “such statements bear directly on
14. There may be a question as to what Hatch intended to do
with Victim had he not been interrupted by Brother, but, again,
Hatch’s argument focused only on the substantial step element
of the attempt crime and not on the intent element.
15. Hatch also argues that excluding Grandfather’s testimony
violated his state and federal due process rights to “present a
complete defense.” See State v. Garcia, 965 P.2d 508, 516 (Utah Ct.
App. 1998) (quotation simplified). But because Hatch raised this
claim for the first time in a motion for a new trial, it is not
preserved, and he has not argued an exception to the
preservation rule. See supra note 8. Accordingly, we do not
address this claim.
20180622-CA 27 2019 UT App 203State v. Hatch
the credibility of the purported victim in a subsequent case.”
State v. Clark, 2009 UT App 252, ¶ 20, 219 P.3d 631 (quotation
simplified). “To properly introduce such evidence, however, the
defendant must first ‘make a threshold showing of the falsity of
prior allegations by a preponderance of the evidence before he
can use those allegations to impeach the accuser’s testimony at
trial.’” Jordan, 2018 UT App 187, ¶ 27 (quoting State v. Tarrats,
2005 UT 50, ¶ 26, 122 P.3d 581). This showing is required
because
[a] truthful prior allegation of rape carries no value
whatsoever in the trial process, and its admission
into evidence bears a high potential for humiliating
the accuser, discouraging victims from reporting
sexual crimes against them, and introducing
irrelevant and collateral issues that may confuse or
distract the jury. It was to avoid these very
problems that rule 412 was adopted.
Tarrats, 2005 UT 50, ¶ 24.
¶54 Hatch did not make the required threshold showing of
falsity. All Hatch presented to the trial court was an affidavit
from Grandfather in which Grandfather alleged that Victim told
him that Brother “tak[es] down his pants and wants [her] to play
and touch his private areas,” which allegation Grandfather
reported to DCFS. In the affidavit, however, Grandfather did not
allege that Victim recanted this allegation or that it was false.
Nor did Hatch provide affidavits from a DCFS witness, or
anyone else, who would testify that Victim ever made this
allegation and recanted it or that it was false. When filing his
motion for a new trial, Hatch again provided only Grandfather’s
same affidavit. This affidavit, on its own, does not satisfy the
required preponderance-of-the-evidence standard, i.e., that “the
existence of the fact is more probable or more likely than its
nonexistence,” Morris v. Farmers Home Mutual Ins. Co., 500 P.2d
505, 507 (Utah 1972), because there was no evidence proffered by
20180622-CA 28 2019 UT App 203State v. Hatch
Hatch that this allegation against Brother, if even made, was
false or recanted by Victim. Therefore, the district court did not
abuse its discretion in ruling that the trial court did not err in
excluding Grandfather’s testimony about the alleged false
accusation. 16
CONCLUSION
¶55 Hatch did not receive ineffective assistance of counsel
when the jury was allowed to hear the factual basis of count 5
and the reason for its dismissal because he has not shown
prejudice. Hatch’s claim of error by the trial court or ineffective
assistance of counsel for not ensuring his presence during all of
the proceedings below likewise fails for lack of prejudice. Trial
counsel was also not deficient in not moving the trial court to
merge counts 1 and 2 under a lesser-included-offense theory,
because the motion would have proven futile. Additionally,
there was sufficient evidence presented to the jury to support its
finding that Hatch took a substantial step toward aggravated
sexual abuse of a child, and trial counsel was not ineffective for
failing to move the trial court for a directed verdict, or to
dismiss, on that basis. Finally, the district court did not abuse its
discretion in ruling that the trial court correctly disallowed
16. We wonder whether, even if the threshold showing of falsity
had been made, Hatch would have been able to properly do
more than simply cross-examine Victim about the previous
allegations (something he was afforded the opportunity to do
anyway). Rule 608(b) of the Utah Rules of Evidence, which
mandates that “extrinsic evidence is not admissible to prove
specific instances of a witness’s conduct in order to attack or
support the witness’s character for truthfulness,” would seem to
be a major impediment to Hatch’s efforts, in this context, to call
Grandfather or a DCFS witness to testify at trial. But because
Hatch did not make the threshold showing of falsity in any
event, we need not consider the matter further.
20180622-CA 29 2019 UT App 203State v. Hatch
Grandfather from testifying about Victim’s alleged false
accusation because Hatch did not make the proper evidentiary
showing.
¶56 Affirmed.
20180622-CA 30 2019 UT App 203