IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah,
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Plaintiff and Appellee,
v.
Billy J. Marks,
Defendant and Appellant.
OPINION
Case No. 20090199‐CA
F I L E D
(August 11, 2011)
2011 UT App 262
‐‐‐‐‐
Third District, West Jordan Department, 061402131
The Honorable Royal I. Hansen
Attorneys:
Lori J. Seppi and Denise M. Porter, Salt Lake City, for Appellant
Mark L. Shurtleff and Christine F. Soltis, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges Davis, McHugh, and Roth.
McHUGH, Associate Presiding Judge:
¶1
Billy J. Marks appeals from his conviction of one count of sodomy upon a child, a
first degree felony, see Utah Code Ann. § 76‐5‐403.1 (1999). Marks argues that the trial
court erred by refusing to permit him to question the complainant (Grandson) about
previous sexual behavior and by denying Marks’s motion to dismiss for insufficiency of
the evidence. We affirm.
BACKGROUND
¶2
Grandson’s maternal grandmother (Grandmother) was married to Marks at the
time Grandson was born. When Grandson was two months old, he had a seizure and
was diagnosed with meningitis encephalitis. Grandson’s illness left him “mentally
challenged.” Although Grandson was in tenth grade at the time of trial, he attended
only special education classes and functioned at approximately the level of a third‐ or
fourth‐grade student. Because Grandson’s mother was unable to care for him,
Grandmother and Marks became his guardians. Grandmother and Marks divorced in
2001, but Grandson continued to visit Marks on a regular basis, and the two maintained
a “very strong” relationship.
¶3
In July or August 2006, Grandson disclosed to Grandmother, and later to his
uncle (Uncle), that Marks had orally sodomized him the previous summer.
Grandmother contacted the police and Grandson was interviewed at the Children’s
Justice Center (CJC). The CJC videotaped the interview of Grandson describing the
incident. Based on Grandson’s allegations, Marks was charged with one count of
sodomy upon a child.
¶4
At the preliminary hearing, Grandmother revealed that sometime in the fall of
2005, she discovered Grandson with his seven‐year‐old sister (Sister), “touching
[Sister’s] breasts[] and . . . getting on top of her like they were having sex.” Both
children were in their underwear at the time. When Grandmother questioned him
about the incident, Grandson told her that he “didn’t understand what [he] was doing.”
Grandson was twelve or thirteen at the time of this incident. Then, sometime in the first
three months of 2006, Grandmother found Grandson with a picture “of women . . .
[e]ngaged in sexual activity.” Grandmother asked Marks to speak with Grandson about
it and Marks told her that he had done so. In approximately July of that same year, “it
happened again,” and “[Grandson] knew he was in trouble” when Grandmother again
caught him with a picture of naked women.1 In response to Grandmother’s questions,
Grandson indicated that the picture “was an old one that he had printed up at [Marks’s
house].” Grandmother then spoke with Grandson about “accessing the . . . porno at
[Marks’s house],” and Grandson explained that “it just pops up on my screen.”
According to Grandmother, Grandson disclosed that Marks had sexually abused him
1
It is unclear from the record whether this was the same picture Grandmother
had discovered Grandson with on the previous occasion.
20090199‐CA
2
about two weeks later.2 Grandson had just returned from a visit with Marks, and he
“seemed kind of strange, just very quiet, withdrawn.” When Grandmother asked if
something was wrong, Grandson first said “no,” and then blurted out, “Grandpa
sucked my dick.” Upon further questioning, Grandson told Grandmother that the
incident had occurred the previous summer, but he was afraid to tell her about it
because Marks had threatened him.
¶5
Grandson also testified at the preliminary hearing; he was fourteen years old at
the time. Grandson’s best recollection was that he was thirteen years old when Marks
sexually assaulted him. He remembered that it was summertime because it was hot,
people had their pools out, and he was not in school. He also believed that it happened
in the summer of 2005, when he had just finished the seventh grade. Grandson testified
that he first reported the incident to Grandmother around his birthday in March of the
following year because he saw a television show about child abuse. Grandson claimed
that prior to watching the show, he did not “know what happened, what [his] Grandpa
did to [him].” Grandson thought Marks was “just showing [him] what sex was.” After
he saw the television show, Grandson understood that what Marks had done to him
was “a bad thing, so [he] told [his] Grandmother.” Although Grandson told
Grandmother about the abuse after the incident with Sister and after the two times he
was caught with the pornographic picture, Grandson testified on cross‐examination
during the preliminary hearing that prior to seeing the television show he did not know
what sex was, had no understanding of sexuality at all, and had never read anything
about sexuality. In response to defense counsel’s further questions, Grandson indicated
that he had not “done anything sexually inappropriate with anybody” other than
Marks; had “never seen anything on the internet that involved sex” before watching the
television show; and had “never seen any pornographic images,” which Grandson
understood meant pictures of naked women in sexual positions.
¶6
Before trial, Marks filed a motion pursuant to rule 412 of the Utah Rules of
Evidence to admit the evidence related to Grandson’s possession of pornography and
the incident with Sister for the purpose of demonstrating that Grandson had the sexual
2
At trial, however, Grandmother testified that she spoke with Grandson about
being caught with the pornographic picture for the second time “just before he made
this disclosure” about Marks.
20090199‐CA
3
knowledge and the motive to fabricate an allegation of abuse against Marks.3 The
defense also claimed that the evidence was admissible for impeachment purposes
because Grandson had untruthfully denied looking at internet pornography and
touching anyone inappropriately.
¶7
At the rule 412 hearing, defense counsel argued that when he tried to explore
Grandson’s sexual knowledge at the preliminary hearing, Grandson did not tell the
truth. Thus, the defense argued that like a prior false allegation of rape, the evidence
should be admitted to prove Grandson’s lack of credibility. Because Grandson was the
only witness to the alleged abuse and there was no corroborating physical evidence, the
defense claimed the opportunity to cross‐examine him about his prior untruthfulness
was critical. In addition, the defense alleged that although Grandson was not a child of
tender years, due to his mental disability the jury would draw the inference that
Grandson would not have the sexual knowledge to describe the allegations against
Marks but for the fact that the abuse really took place. Consequently, the defense
claimed that the evidence should be admitted to rebut the inference that “mentally
disabled children, and even adults, are naive when it comes to sexual matters.” In
response to questions from the trial court, defense counsel confirmed that he intended
to offer expert testimony “that mentally handicapped people . . . wouldn’t necessarily
be naive” but argued that Marks was still entitled to present evidence that Grandson
specifically was not uninformed about sexual matters. In response, the State argued
that the evidence should be excluded under rule 412 because it did not involve sex acts
similar to those Grandson alleged occurred with Marks and therefore could not explain
his ability to fabricate those allegations. The defense argued on rebuttal that the fact
that Grandson had the picture printed from the internet showed that he had access to
internet pornography generally, not just to that picture.
3
Although Marks properly filed his motion under seal, see Utah R. Evid. 412(c)(2)
(“The motion, related papers, and the record of the hearing must be sealed and remain
under seal unless the court orders otherwise.”), a duplicate copy of the motion, the
State’s response, and the trial court’s ruling were inadvertently placed in the pleadings
file without being sealed. We grant the State’s motion to seal these documents, the
transcripts of the rule 412 and preliminary hearings, and the parties’ briefs filed with
this court.
20090199‐CA
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¶8
The trial court denied the motion, concluding that Grandson’s possession of
pornography and the incident with Sister were “not probative of [Grandson]’s
knowledge with respect to the act in this case, fellatio between two males”; that the
details of why Grandson was in trouble did not explain why he would falsely accuse
Marks; and that the defense could “adequately explore [Grandson’s] truthfulness and
propensity for lying versus telling the truth by questioning [Grandmother] without
addressing [Grandson’s] sexual incidents” and by “attack[ing] inconsistencies in
[Grandson’s] story, the timing of the allegations, and the adequacy of the detective’s
investigation.” Therefore, the trial court concluded that exclusion of the evidence did
not violate Marks’s Sixth Amendment right to confront his accuser and should be
excluded under rule 412. In addition, the trial court determined that the evidence was
inadmissible under rule 403 of the Utah Rules of Evidence because its probative value
was outweighed by the danger of unfair prejudice.
¶9
Marks was tried before a jury for three days in November 2008. Grandson’s trial
testimony regarding when and how the abuse occurred was inconsistent in a number of
respects with his previous testimony during the CJC interview, as well as his testimony
at the preliminary hearing. For example, at trial, Grandson stated that on the morning
of the abuse, he exited the shower and Marks, who was still “in bed under his covers,”
told Grandson to come into the room. However, at the CJC interview, Grandson
testified, “I got out of the shower and I saw him naked,” and at the preliminary hearing,
Grandson said that he saw Marks naked under the covers. Grandson’s trial testimony
regarding what happened during the abuse was also different from his earlier
statements. At trial, Grandson testified that when Marks ordered Grandson to get into
bed with him, Marks was masturbating and became erect. Yet, at the CJC interview,
Grandson stated that Marks could not achieve an erection. And at the preliminary
hearing, Grandson did not indicate that Marks was masturbating and stated that Marks
did not become erect. Further, Grandson testified for the first time at trial that during
the abuse Grandson became erect and ejaculated “goo stuff.” At the CJC interview,
however, Grandson said that nothing happened to his body after Marks performed
fellatio on him, and at the preliminary hearing, Grandson testified that he became erect
during the abuse but he was not sure why Marks stopped. Finally, the evidence at trial
concerning Grandson’s age at the time of the abuse and when and to whom he reported
it was confusing. At trial, defense counsel cross‐examined Grandson regarding the
discrepancies among his three statements about the abuse and about his age when it
occurred.
20090199‐CA
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¶10 Marks did not testify at trial. Instead, the defense relied on cross‐examination of
Grandson and argued that the significant differences among his versions of the abuse
created a reasonable doubt that the abuse occurred. In addition, after the State rested,
the defense moved for dismissal of the charges, arguing that the inconsistencies in
Grandson’s testimony made it insufficient, standing alone, to support a guilty verdict
beyond a reasonable doubt. Marks also claimed that dismissal was appropriate because
the State had failed to prove that Grandson was under fourteen years of age at the time
of the abuse. The trial court denied the motion, and the jury found Marks guilty. This
appeal followed.
ISSUES AND STANDARDS OF REVIEW
¶11 First, Marks argues that the trial court violated his Sixth Amendment right to
confrontation, see U.S. Const. amend. VI,4 by excluding evidence of Grandson’s sexual
behavior under rule 412 of the Utah Rules of Evidence. “When reviewing a trial court’s
decision to limit cross‐examination, we review the legal rule applied for correctness and
the application of the rule to the facts of the case for an abuse of discretion.” State v.
Chavez, 2002 UT App 9, ¶ 17, 41 P.3d 1137; see also State v. Clark, 2009 UT App 252, ¶ 10,
219 P.3d 631, cert. denied, 225 P.3d 880 (Utah 2010); State v. Quinonez‐Gaiton, 2002 UT
App 273, ¶ 10, 54 P.3d 139. If that review convinces us that an error has occurred, we
must then determine “whether, assuming that the damaging potential of the cross‐
examination [had been] fully realized,” we are convinced “that the error was harmless
beyond a reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
¶12 Second, Marks argues that the trial court erred in denying his motion to dismiss
because the State’s evidence was insufficient to support a guilty verdict. A trial court’s
ruling on a motion to dismiss is a question of law, which we review for correctness. See
State v. Hamilton, 2003 UT 22, ¶ 17, 70 P.3d 111. However, we will reverse only if “the
4
“[T]his bedrock procedural guarantee applies to both federal and state
prosecutions.” Crawford v. Washington, 541 U.S. 36, 42 (2004) (citing Pointer v. Texas, 380
U.S. 400, 406 (1965)); see also U.S. Const. amends. VI, XIV; Utah Const. art. I, § 12
(guaranteeing a criminal defendant the right “to be confronted by the witnesses against
him”). Marks has not argued that the state constitution provides greater protection
than the federal constitution.
20090199‐CA
6
evidence [presented] is sufficiently inconclusive or inherently improbable such that
reasonable minds must have entertained a reasonable doubt that the defendant
committed the crime for which he or she was convicted.” State v. Robbins, 2009 UT 23,
¶ 14, 210 P.3d 288 (internal quotation marks omitted).
ANALYSIS
I. Marks’s Confrontation Clause Claims
¶13 Marks first argues that the trial court violated his right to confrontation by
prohibiting him from questioning Grandson about the incident with Sister and about
Grandson’s possession of pornography based on rule 412 of the Utah Rules of
Evidence.5 “Whether rooted directly in the Due Process Clause of the Fourteenth
Amendment, or . . . [the] Confrontation [C]lause[] of the Sixth Amendment,6 the [United
States] Constitution guarantees criminal defendants ‘a meaningful opportunity to
present a complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citations
5
Rule 412 provides in relevant part,
(a) Evidence generally inadmissible. The following evidence is
not admissible in any criminal proceeding involving alleged
sexual misconduct except as provided in paragraphs (b) and
(c):
(a)(1) evidence offered to prove any alleged victim engaged
in other sexual behavior;
. . . .
(b) Exceptions. The following evidence is admissible, if
otherwise admissible under these rules:
. . . .
(b)(3) evidence the exclusion of which would violate the
constitutional rights of the defendant.
Utah R. Evid. 412.
6
The Sixth Amendment to the United States Constitution states in relevant part,
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him . . . .” U.S. Const. amend. VI.
20090199‐CA
7
omitted) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). A complete defense
includes “the right to conduct reasonable cross‐examination.” Olden v. Kentucky, 488
U.S. 227, 231 (1988) (per curiam); see also Van Arsdall, 475 U.S. at 678‐79 (noting that the
main purpose of the Confrontation Clause is to provide a criminal defendant with the
opportunity to cross‐examine his accusers). Indeed, cross‐examination has been
described as the “‘greatest legal engine ever invented for the discovery of truth.’” State
v. Vargas, 2001 UT 5, ¶ 28 n.7, 20 P.3d 271 (quoting California v. Green, 399 U.S. 149, 158‐
59 (1970)).
¶14 Nevertheless, a defendant’s Sixth Amendment right to confront his accuser
“may, in appropriate cases, bow to accommodate other legitimate interests in the
criminal trial process.” Michigan v. Lucas, 500 U.S. 145, 149 (1991) (internal quotation
marks omitted); see also State v. Tarrats, 2005 UT 50, ¶ 36, 122 P.3d 581 (“[T]he
defendant’s right to confront witnesses is not absolute.”). Thus, “trial judges retain
wide latitude to limit reasonably a criminal defendant’s right to cross‐examine a witness
based on concerns about, among other things, harassment, prejudice, confusion of the
issues, the witness’[s] safety, or interrogation that is repetitive or only marginally
relevant.” Lucas, 500 U.S. at 149; accord Tarrats, 2005 UT 50, ¶ 36; Chavez, 2002 UT App
9, ¶ 19. Those limitations on a defendant’s right to confront witnesses and to offer
evidence in support of his defense, however, “‘may not be arbitrary or disproportionate
to the purposes they are designed to serve.’” Lucas, 500 U.S. at 151 (quoting Rock v.
Arkansas, 483 U.S. 44, 56 (1987)); accord Tarrats, 2005 UT 50, ¶ 36.
¶15 Rule 412 of the Utah Rules of Evidence is one instance where the Utah courts
have recognized that the defendant’s right to present relevant testimony may be limited
to accommodate the legitimate interests of the alleged victim of sexual abuse.7 See
Tarrats, 2005 UT 50, ¶ 37; see also Quinonez‐Gaiton, 2002 UT App 273, ¶ 14. Generally,
rule 412 “serves to bar all evidence of the alleged victim’s other sexual behavior.” Clark,
2009 UT App 252, ¶ 14. The rule’s bar on the admission of evidence concerning the
accuser’s sexual activity is a recognition by the Utah courts that in most instances, an
alleged victim’s prior sexual conduct is simply not relevant to the issue of whether a
rape or sexual assault has occurred. See Tarrats, 2005 UT 50, ¶ 21. Furthermore, “[e]ven
7
Utah’s rule 412 is patterned after rule 412 of the Federal Rules of Evidence, with
the exception that Utah’s rule 412 applies only in criminal cases. See Utah R. Evid. 412
advisory comm. notes.
20090199‐CA
8
where such evidence bears some marginal relevance, it has an unusual propensity to
unfairly prejudice, inflame, or mislead the jury and is likely to distort the jury’s
deliberative process . . . and should therefore be excluded.” Id. (citation and internal
quotation marks omitted). However, rule 412 is subject to several express exceptions,
see Utah R. Evid. 412(b), including where “the exclusion of [otherwise admissible
evidence] would violate the constitutional rights of the defendant.” Id. R. 412(b)(3).8
¶16 Marks contends that his constitutional rights were violated because he was
prohibited from introducing evidence of the incident with Sister and of Grandson’s
possession of pornography. To prevail on an argument based on rule 412’s
constitutional exception, Marks must establish that the evidence was “otherwise
admissible under [the rules of evidence],” see Utah R. Evid. 412(b), and that its exclusion
would violate his constitutional rights, see id. R. 412(b)(3); see also State v. Clark, 2009 UT
App 252, ¶ 16, 219 P.3d 631 (“A Sixth Amendment violation occurs when a defendant is
‘prohibited from engaging in otherwise appropriate cross‐examination.’” (emphasis
added) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)), cert. denied, 225 P.3d
880 (Utah 2010).
¶17 For example, Marks had the right to engage in “cross‐examination designed to
show a prototypical form of bias on the part of the witness, and thereby to expose to the
jury the facts from which [it] . . . could appropriately draw inferences relating to the
reliability of the witness.” Van Arsdall, 475 U.S. at 680 (omission in original) (internal
quotation marks omitted). But even relevant evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice. See Utah R. Evid.
403; Tarrats, 2005 UT 50, ¶ 21 (noting that even in the rare cases when evidence of the
complainant’s sexual behavior is relevant it may still be excluded under rule 403); State
v. Boyd, 2001 UT 30, ¶ 39, 25 P.3d 985 (holding that although evidence of a rape victim’s
past sexual conduct fell within an exception to rule 412, it could still be excluded if it
8
Rule 412 also permits the admission of evidence concerning the accuser’s prior
sexual history where it is offered to prove that someone other than the defendant was
the source of physical evidence, or to establish sexual contact between the defendant
and the accuser where consent is at issue or the evidence is offered by the prosecution.
See Utah R. Evid. 412(b)(1)‐(2). However, because consent is never an issue in the
prosecution of charges of child sexual assault and there was no physical evidence
corroborating Grandson’s allegations, these exceptions have no relevance here.
20090199‐CA
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did not satisfy the requirements of rule 403). Furthermore, unreliable evidence is not
admissible. See generally Utah R. Evid. 801‐802 (defining hearsay and excluding its
admission). But see id. R. 803‐807 (governing the instances where hearsay is admissible).
¶18 The interplay between rule 412 and the Confrontation Clause puts trial judges in
the difficult position of trying to strike the correct balance between two important
interests: the accused’s right to present a complete defense and the State’s interest in
protecting the complaining witnesses in sex crime prosecutions from unnecessarily
intrusive invasions into private sexual matters. There is a strong public interest in
identifying, prosecuting, and removing from society persons who sexually abuse others.
See State v. Green, 2004 UT 76, ¶ 40, 99 P.3d 820 (noting the State’s interest in protecting
vulnerable individuals from exploitation, including sexual assault and statutory rape).
Indeed, the United States Supreme Court recently quantified the problem, stating,
Sex offenders are a serious threat in this Nation. In 1995, an
estimated 355,000 rapes and sexual assaults occurred
nationwide. Between 1980 and 1994, the population of
imprisoned sex offenders increased at a faster rate than for
any other category of violent crime. As in the present case,
the victims of sexual assault are most often juveniles. In
1995, for instance, a majority of reported forcible sexual
offenses were committed against persons under 18 years of
age. Nearly 4 in 10 imprisoned violent offenders said their
victims were 12 or younger.
McKune v. Lile, 536 U.S. 24, 32 (2002) (citations omitted). When the crime is child sexual
abuse, the societal interests are elevated by the vulnerability of the victims and the
impact of the abuse on their ability to become emotionally healthy adults. See State v.
Bishop, 717 P.2d 261, 266‐67 (Utah 1986) (“Oral sex by or upon a child is likely to have
long‐term and perhaps lifetime, deleterious effects upon that child. The State has a
strong interest in protecting children from sexual abuse and exploitation.”). According
to our supreme court, “[t]here is no other crime which shocks the conscience of society
as does the sexual abuse of a helpless child.” State v. Matsamas, 808 P.2d 1048, 1055
(Utah 1991). Consequently, the legislature and the courts have adopted laws and rules
that encourage the reporting of such crimes, reduce the impact on the child
complainants, and harshly punish convicted pedophiles. See, e.g., Utah Code Ann. § 76‐
20090199‐CA
10
5‐406.5 (2008) (limiting instances when a defendant who has pleaded guilty to child
sexual abuse can be considered for probation); Utah R. Crim. P. 15.5 (governing the use
of out‐of‐court statements of child victims or child witnesses of sexual or physical
abuse).
¶19 However, in the zeal to protect children from the horrendous impacts of sexual
abuse, we must not lose sight of the fact that to be falsely accused of child sexual abuse
would also be devastating. The framers of our Constitution understood the importance
of designing a criminal justice system that includes protection of the rights of the
defendant. Persons accused of crimes, even despicable crimes, are presumed innocent
until they are proven guilty beyond a reasonable doubt. See State v. Jeffs, 2010 UT 49,
¶ 2, 243 P.3d 1250 (“[T]he presumption of innocence guaranteed to all by our
Constitution demands great care from the courts and those who prosecute on behalf of
the people.”). Criminal defendants are entitled to be represented by counsel, and they
have the right to confront the witnesses against them. See U.S. Const. amend. VI. These
protections also represent important societal interests, including the goal of maintaining
a fair and impartial judicial system. See State v. McClellan, 2009 UT 50, ¶ 20, 216 P.3d
956 (explaining that “fairness and impartiality in the adjudication process must be
diligently maintained in order to ensure public faith in the impartiality and integrity of
the justice system” (internal quotation marks omitted)). “[B]ecause of the strong
emotions which surround [child sexual abuse] cases[,] . . . we must insure that trial
proceedings are fair and that the rights of all concerned are protected.” Matsamas, 808
P.2d at 1055.
¶20 Even before Utah’s adoption of rule 412, this tension between the rights of the
accused and the interests of the accuser has been a subject of our jurisprudence. See
Utah R. Evid. 412 advisory comm. notes (noting that Utah had judicially imposed
restrictions on the admissibility of evidence of the accuser’s sexual conduct or
reputation before the adoption of rule 412). Indeed, fourteen years before the adoption
of rule 412, the Utah Supreme Court explained in State v. Johns, 615 P.2d 1260 (Utah
1980), that evidence of the complainant’s general reputation for chastity or prior
instances of sexual behavior
is admissible only when the court finds under the
circumstances of the particular case such evidence is
relevant to the material factual dispute and its probative
20090199‐CA
11
value outweighs the inherent danger of unfair prejudice to
the [complainant], confusion of issues, unwarranted
invasion of the complainant’s privacy, consideration of
undue delay and time waste and the needless presentation
of cumulative evidence.
Id. at 1264; accord State v. Lovato, 702 P.2d 101, 105 (Utah 1985). The Johns court
identified four factors that should be considered by the trial court in making the
admissibility determination: “(a) relevancy and probative value; (b) prejudicial effect;
(c) confusion of the issues and undue consumption of time; and (d) substantial justice.”
615 P.2d at 1263.
¶21 In State v. Moton, 749 P.2d 639 (Utah 1988), the supreme court applied those
factors in the child sexual abuse context, rejecting the defendant’s claim that the trial
court had improperly restricted his right to cross‐examine his ten‐year‐old accuser. See
id. at 643‐44. Although the trial court allowed the defendant to elicit testimony from the
child that she “knew a lot about sex and, in fact, knew all about sexual anatomy and
understood the act of fellatio,” it sustained the State’s objections to questions about the
specific instances of the child’s prior sexual experience. See id. at 641‐42. A majority of
the supreme court upheld the defendant’s conviction, concluding that the introduction
of the other evidence of the child’s sexual sophistication either rendered the restrictions
on cross‐examination reasonable, see id. at 644, or made any error in limiting cross‐
examination harmless, see id. (Zimmerman, J., concurring).
¶22 After the adoption of rule 412, effective July 1, 1994, the Utah Supreme Court
continued to view attempts to admit evidence of the complainant’s other sexual conduct
skeptically in sexual assault prosecutions. Like the United States Supreme Court, our
supreme court has approved the exclusion of this type of evidence under the rules of
evidence, including rule 412, so long as the resulting “impingements upon a
defendant’s constitutional rights . . . are not ‘arbitrary or disproportionate to the
purposes [the rule is] designed to serve.’” See State v. Tarrats, 2005 UT 50, ¶ 36, 122 P.3d
581 (quoting Stephens v. Miller, 13 F.3d 998, 1002 (7th Cir. 1994)); see also State v. Martin
(Martin II), 2002 UT 34, ¶ 40 n.5, 44 P.3d 805 (noting that sexual proclivity evidence
“becomes admissible if it satisfies the requirements of one of rule 412’s specifically
enumerated exceptions, the procedural requirements of that rule, and the other
strictures of admissibility imposed by the Utah Rules of Evidence generally”). The
20090199‐CA
12
consideration of whether the exclusion of evidence is disproportionate to rule 412’s
purpose, thereby violating the defendant’s constitutional right to confrontation,
involves the balancing of the interests of the defendant against those of the State under
the facts and circumstances of the particular case. See Michigan v. Lucas, 500 U.S. 145,
153 (1991) (remanding for consideration of “whether, on the facts of this case,
preclusion [of the evidence of the complainant’s prior sexual activity] violated [the
defendant’s] rights under the Sixth Amendment); see also Barbe v. McBride, 521 F.3d 443,
449 (4th Cir. 2008) (“[U]nder the Rock‐Lucas Principle, a state court cannot impose a per
se rule for disallowing evidence under a rape shield law; rather, it must determine, on a
case‐by‐case basis, whether the exclusionary rule ‘is arbitrary or disproportionate to the
State’s legitimate interests.’” (quoting Lucas, 500 U.S. at 151)).
¶23 Here, the trial court excluded the evidence under both rule 403 and rule 412.
Pursuant to rule 403, evidence of the complainant’s sexual activity is inadmissible
unless the evidence is “relevant to a material factual dispute and its probative value
outweighs the inherent danger of unfair prejudice to the victim, confusion of the issues,
unwarranted invasion of the complainant’s privacy, considerations of undue delay and
time waste and the needless presentation of cumulative evidence.” State v. Boyd, 2001
UT 30, ¶¶ 39‐42, 25 P.3d 985 (internal quotation marks omitted) (holding that evidence
of complainant’s sexual activity with another man on the night of the alleged rape fell
within an exception to rule 412 but was presumed inadmissible and properly excluded
under rule 403); see also Utah R. Evid. 403. To determine if exclusion of evidence
violates the Confrontation Clause, the court must assess both the importance of the
evidence to an issue critical to the defense and the extent to which exclusion of the
evidence will further the purposes of the rule under which it is excluded. See Tarrats,
2005 UT 50, ¶ 37. Thus, under either rule 403 or rule 412, the relevance of the
challenged evidence is an important component of the admissibility analysis. And a
determination that the evidence of the complainant’s sexual history is of marginal or no
probative value will likely result in its exclusion under both rule 403 and rule 412.
Therefore, we begin our analysis by considering the relevance of the evidence of
Grandson’s possession of pornography and the incident with Sister. We then examine
the extent to which its exclusion furthers the purposes of rule 412. Because we
determine that the evidence was properly excluded under rule 412, we do not
separately address its exclusion under rule 403.
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A.
The Relevance of the Excluded Evidence
¶24 Marks contends that the evidence is probative of three issues critical to his
defense: (1) that Grandson had a motive to fabricate the allegations against Marks,
(2) that there is an alternative source for Grandson’s sexual knowledge, and (3) that
Grandson is not credible. We address each of these issues in turn.
1.
The Evidence of Grandson’s Possession of Pornography Was Not Relevant to
Grandson’s Motive To Lie.
¶25 Marks claims that he was entitled to provide evidence from which the jury could
find that Grandson fabricated the allegations to redirect Grandmother’s anger over
catching Grandson, for the second time, with pornography. According to Marks, the
pornography was printed from his computer and, therefore, “Marks’s name was
already part of the conversation and was . . . the likely choice for a quickly‐invented
allegation of abuse.” We are not convinced.
¶26 First, there is little obvious connection, if any, between the excluded evidence
and the theory advanced by the defense. The fact that Grandson was in trouble for
possessing a picture of two naked women engaged in sexual activity, even if printed
from Marks’s computer, does not explain why Grandson would falsely disclose that
Marks had orally sodomized him. Nor does this evidence “reveal[ an] underlying
hostility that would suggest an independent motive to accuse him falsely.” State v.
Clark, 2009 UT App 252, ¶ 19, 219 P.3d 631, cert. denied, 225 P.3d 880 (Utah 2010).
Grandson and Marks had previously enjoyed a good relationship, and Grandson did
not suggest that Marks encouraged him to view pornography on the internet. Thus,
nothing about the details of Grandson’s transgression supports the defense theory that
Grandson wanted to deflect Grandmother’s attention better than can be argued from
the simple fact that Grandson was in serious trouble at the time he made his allegations
against Marks.
¶27 Indeed, the facts of this case are strikingly similar to those considered by this
court in State v. Quinonez‐Gaiton, 2002 UT App 273, 54 P.3d 139. There, the child
complainant’s stepmother caught him engaged in sexual activity with her son and
demanded to know where he had learned such conduct. See id. ¶ 2. The child
responded by accusing the defendant of sexually abusing him. See id. The defendant
20090199‐CA
14
sought to introduce evidence of this incident to demonstrate that the child may have
been motivated to fabricate the accusations against him in order to redirect his
stepmother’s anger. See id. ¶¶ 14, 18. The Quinonez‐Gaiton court held that exclusion of
those details did not violate the defendant’s right to confrontation because the trial
court permitted the defendant to question the child generally and to establish that he
was in trouble with his stepmother at the time of the disclosure. See id. ¶¶ 16‐18. In so
holding, the Quinonez‐Gaiton court observed,
It was not necessary to expose the fact that [the child
complainant] engaged in a sexual act with his stepbrother to
effectively challenge the credibility of the accusations he
made against [the defendant]. In fact, revealing that [the
child complainant] engaged in a sexual act with his
stepbrother sheds little or no light, by itself, on why [the
child complainant] would be motivated to accuse [the
defendant], of all the people in the world, of sexually
abusing him. In contrast, the perceived need to blurt out a
name in the hope of terminating parental browbeating sheds
such light, wholly aside from exactly what prompted the
browbeating.
Id. ¶ 18; see also Clark, 2009 UT App 252, ¶ 18 (following Quinonez‐Gaiton).
¶28 Marks requests that we depart from this precedent on the ground that it is
inconsistent with his Sixth Amendment rights. We decline to do so. See generally Ewing
v. Utah Dep’t of Transp., 2010 UT App 158, ¶ 13, 235 P.3d 776 (“[T]he party requesting
our departure from precedent carries a heavy burden of persuasion.”), cert. denied, 241
P.3d 771 (Utah 2010). Despite Marks’s insistence otherwise, our focus on the minimal
probative value of the excluded evidence is consistent with the mandates of the Sixth
Amendment. Compare State v. Boyd, 2001 UT 30, ¶ 43, 25 P.3d 985 (affirming the trial
court’s exclusion of evidence that the fifteen‐year‐old victim had sexual intercourse
with another man the same night of the rape where “demonstrating an alternative
source for some of the debris [in the victim’s vaginal area] was not highly probative to
the question that was before the jury, i.e., whether the intercourse was consensual”),
with Butterfield v. Cook, 817 P.2d 333, 339‐40 (Utah Ct. App. 1991) (holding that the trial
court did not exceed its discretion in admitting evidence of the complainant’s prior
20090199‐CA
15
sexual activity where it could explain the physical evidence that the fourteen‐year‐old
complainant’s hymen was not intact).
¶29 We also find that Marks’s reliance on Olden v. Kentucky, 488 U.S. 227 (1988) (per
curiam), is misplaced. There, the United States Supreme Court concluded that the
defendant’s confrontation rights were violated when he was not permitted to cross‐
examine the complainant about her sexual relationship with another man who had
observed her exiting the defendant’s car immediately before she accused the defendant
of rape. See id. at 233. In doing so, the Court focused on the strength of the evidence to
prove that the complainant had a motive to lie, noting that the defendant “has
consistently asserted that he and [the complainant] engaged in consensual sexual acts
and that [she]—out of fear of jeopardizing her relationship with [her boyfriend]—lied
when she told [her boyfriend] she had been raped and has continued to lie since.” Id. at
232. While acknowledging the trial court’s ability to impose reasonable limits on the
defense’s inquiry into potential bias, particularly where the evidence is “marginally
relevant,” the United States Supreme Court held that the “exclusion of cross‐
examination with such a strong potential to demonstrate the falsity of [the
complainant’s] testimony” could not be justified. See id. (internal quotation marks
omitted).
¶30 Where the excluded evidence is particularly relevant, the Utah appellate courts
also require that the defendant be permitted to use it for cross‐examination. See State v.
Warner, 79 Utah 510, 13 P.2d 317, 319 (1932) (holding that the trial court unduly
restricted the defendant’s cross‐examination concerning the child complainant’s
discussions with her half‐brother about “putting the blame on” the defendant); State v.
Chavez, 2002 UT App 9, ¶ 20, 41 P.3d 1137 (holding that the defendant’s confrontation
rights were violated where the excluded evidence could “significantly lengthen the
shadow to be cast on [the witness’s] credibility and greatly strengthen the suggestion
that he had a then‐immediate motive to lie, potentially undermining his claim that he
came forward of his own volition and purely out of a sense of public duty and empathy
for the victim” (emphasis omitted)). Unlike the evidence at issue in these decisions, the
excluded evidence here has little, if any, relevance to Grandson’s motive to lie and
arguably involves Grandson’s prior sexual activity.
¶31 There is no logical link between the details of Grandson’s possession of
pornography and a motive to accuse Marks of sexual abuse. See United States v. Culver,
598 F.3d 740, 750 (11th Cir. 2010) (affirming the trial court’s exclusion of evidence under
20090199‐CA
16
rule 412 and stating, “We agree with the district court that the jury did not need to hear
the details of the conduct for which [the complainant] was disciplined in order for [the
defendant] to have a constitutionally sufficient opportunity to impeach [the
complainant]”); see also People v. Gholston, 26 P.3d 1, 6‐8 (Colo. Ct. App. 2000) (holding
that defendant’s confrontation rights were not violated by the trial court’s exclusion of
evidence that complainant first made allegations about defendant while complainant
was being investigated for sexually assaulting another child). While the complainant’s
motive to accuse the defendant of rape in Olden is readily understandable because her
willing participation in sex with him would negatively impact her relationship with her
boyfriend, no similar motive is apparent here. See generally State v. Tarrats, 2005 UT 50,
¶ 45, 122 P.3d 581 (“[W]hile [the defendant] may argue that the accuser had a motive to
falsely tell her friends that she had been raped [on a previous occasion] in order to
preserve her relationship with her then‐boyfriend, he cannot and does not argue that
she has such motive to fabricate a false claim against him.”). Even assuming that
Grandson wished to deflect Grandmother’s ire and that Marks’s name was on his mind,
nothing about the details of the incident supports a motive to fabricate a story about
being sexually abused by Marks. See United States v. Pumpkin Seed, 572 F.3d 552, 560‐61
(8th Cir. 2009) (concluding that the defendant’s confrontation rights had not been
violated where the “evidence of [the complainant’s] prior sexual relationship with [a]
married man, offered to prove that [the complainant] feared becoming pregnant by him,
had little, if any, probative value as to [the complainant’s] motive to falsely accuse [the
defendant] of rape”).
¶32 Furthermore, the trial court allowed Marks to introduce evidence of the fact that
Grandson was in serious trouble shortly before he accused Marks. “[W]here the
defendant is provided a reasonable opportunity to adequately explore, by alternative
methods, the substance of his complaints regarding the veracity of the victim’s
allegations, any need to disclose the victim’s prior sexual conduct is substantially
diminished and a trial court should ordinarily exclude it.” State v. Quinonez‐Gaiton,
2002 UT App 273, ¶ 17, 54 P.3d 139; see also Gholston, 26 P.3d at 8 (noting that the
defendant was permitted to cross‐examine child complainant regarding delay in
reporting the abuse and the fact that it was first reported during the child’s interview
with an unidentified law enforcement officer). Marks was afforded such an
opportunity, and the details of why Grandson was in trouble add little, if anything, to
the argument that Grandson lied about the abuse so that Grandmother’s displeasure
would have a new target. Consequently, we conclude that Marks’s confrontation rights
20090199‐CA
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were adequately protected by his ability to cross‐examine Grandson about the fact that
he was in trouble shortly before he made his allegations that Marks had sexually abused
him.
2.
The Incident with Sister Was Not Relevant to Grandson’s Ability To Fabricate the
Allegations Against Marks, but Grandson’s Possession of Pornography Had
Some Relevance to His General Sexual Knowledge.
¶33 Marks next contends that he should have been permitted to cross‐examine
Grandson about the pornographic picture and the incident with Sister to show that
Grandson had the sexual knowledge necessary to fabricate the allegation of abuse
against Marks. The argument that a child complainant’s prior sexual activity is
admissible to rebut the jury’s likely assumption that a child would not have such sexual
knowledge but for the charged abuse is sometimes referred to as the “sexual innocence
inference” and we use that nomenclature here for ease of reference. See Grant v.
Demskie, 75 F. Supp. 2d 201, 213‐14 (S.D.N.Y. 1999) (citing Clifford S. Fishman, Consent,
Credibility, and the Constitution: Evidence Relating to a Sex Offense Complainant’s Past
Sexual Behavior, 44 Cath. U. L. Rev. 709, 806 (1995); Christopher B. Reid, Note, The Sexual
Innocence Inference Theory as a Basis for the Admissibility of a Child Molestation Victim’s
Prior Sexual Conduct, 91 Mich. L. Rev. 827, 829‐830 (1993)).
¶34 The Utah Supreme Court considered the impact of the sexual innocence
inference in State v. Moton, 749 P.2d 639 (Utah 1988), where the defendant sought to ask
his ten‐year‐old accuser “a number of questions concerning prior sexual conduct on her
part and prior fabricated sexual misconduct accusations against other persons.” Id. at
643. Although the majority of the supreme court held that the defendant’s conviction
should be upheld, the justices did so for different reasons. Two of the justices held that
the trial court’s exclusion of the victim’s past sexual conduct did not deny the defendant
the right to confront the complainant because the defendant was allowed “a plentitude
of questions relevant to the victim’s sexual knowledge, her past lies (including those
regarding sexual matters), and possible motives for lying in the instant case.” Id. at 644;
see also State v. Simmons, 759 P.2d 1152, 1157 (Utah 1988) (Hall, C.J., concurring and
dissenting) (concluding that exclusion of evidence concerning child complainant’s prior
sexual activity did not violate the defendant’s confrontation rights because “defense
counsel nevertheless elicited from the victim that his friends taught him the meaning of
sexual phrases defendant had used”). Two concurring justices in Moton indicated that
20090199‐CA
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“the trial court may have unduly limited the cross‐examination of the victim” but
concluded that “sufficient evidence [of the victim’s sexual sophistication] was admitted
so as to make the trial court’s error harmless.” 749 P.2d at 644 (Zimmerman, J.,
concurring). However, the concurring justices also shared some of the concerns
expressed in Justice Stewart’s dissent, which reasoned that when a child of an age
typically unfamiliar with “adult‐type sexual acts” has acquired the ability to describe
them from sexual experience with someone other than the defendant, “that information
is clearly relevant” and the “temporary embarrassment of the child victim must . . .
yield to the integrity of the fact‐finding process when an innocent person’s liberty is at
stake.” Id. at 645 (Stewart, J., dissenting).
¶35 Not long after the decision in Moton, a panel of this court reviewed a challenge to
the trial court’s restrictions on the defendant’s use of evidence concerning the child
complainant’s prior sexual experience in closing argument. In Butterfield v. Cook, 817
P.2d 333 (Utah Ct. App. 1991),9 information about the complainant’s prior sexual
relationship with her brother and her prior sexual assault by a third party was
contained in a document received into evidence. See id. at 338. While the defendant
claimed that the restrictions on his use of that evidence in closing constituted error, the
State argued that the evidence should have been excluded and that therefore, the
restrictions on its use were not prejudicial. See id. On appeal, this court cited favorably
to the premise underlying the sexual innocence inference: “‘[T]he average juror would
perceive the average twelve‐year‐old girl as a sexual innocent. Therefore, it is probable
that jurors would believe that the sexual experience she describes must have occurred
in connection with the incident being prosecuted; otherwise she could not have
described it.’” Id. at 339 (quoting State v. Howard, 426 A.2d 457, 462 (N.H. 1981)). The
Butterfield court then concluded that the trial court did not exceed its discretion in
admitting the evidence because the complainant’s “prior experience could support
petitioner’s theory that she fabricated the incident, as she had the basis of knowledge
9
The matter was before the court of appeals on the defendant’s appeal of the
district court’s denial of his petition for a writ of habeas corpus. The defendant argued
that his former appellate counsel rendered ineffective assistance by not raising in the
defendant’s direct appeal a claim that the trial court erroneously restricted the use of
evidence received at trial concerning the child complainant’s prior sexual activity
during closing argument. See Butterfield v. Cook, 817 P.2d 333, 335 (Utah Ct. App. 1991).
20090199‐CA
19
for the fabrication from her prior experiences.” Id. at 340.10 However, the appellate
court affirmed the conviction because it concluded that any restrictions on closing
argument were harmless.
¶36 From these decisions, we conclude that Utah, like most other jurisdictions,
recognizes the relevance of the complainant’s past sexual conduct to rebut the sexual
innocence inference in appropriate cases. See State v. Molen, 231 P.3d 1047, 1051‐52
(Idaho Ct. App. 2010) (collecting cases and stating that “the vast majority of courts have
held that evidence of a child victim’s prior exposure to sexual conduct may be relevant
to show an alternative basis for the child’s sexual knowledge”); Grant, 75 F. Supp. 2d at
214‐15 (collecting cases). However, as with the introduction of sexual activity evidence
generally, its admission for purposes of rebutting a sexual innocence inference is highly
dependent upon the facts and circumstances of the particular case.
¶37 As this court explained in Butterfield, one important consideration is the age of
the child complainant at the time the child describes the sexual assault. In determining
that the trial court’s erroneous restrictions on the use of the complaint’s prior sexual
activity during closing argument was harmless, the Butterfield court reasoned that, first,
there was strong corroborative evidence of the assault and,
[s]econd, unlike the victim in Moton, who was only ten, the
complainant here was fourteen. There is a difference in
what a reasonable juror would understand as the sexual
knowledge of a girl at fourteen, whether based on her own
experience or on anecdotal information, and accordingly of
her ability to fabricate if she was inclined to do so. Thus, the
specifics of prior sexual experience where fabrication is the
defense is much less critical with a victim of fourteen than a
victim of ten.
10
The court also concluded that the evidence was relevant to the child’s physical
condition. See Butterfield, 817 P.2d at 339 (“[T]he physical evidence that the
complainant’s hymen was not intact could be explained by her prior sexual experiences
. . . .”).
20090199‐CA
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Butterfield, 817 P.2d at 340. In most cases, “the probative value of evidence of a child’s
alternative source of sexual knowledge will . . . be inversely proportional to the child’s
age, for the younger the child, the stronger the likelihood of a jury inference that the
child would be too sexually innocent to have fabricated the allegations against the
defendant.” Molen, 231 P.3d at 1052; see also LaJoie v. Thompson, 217 F.3d 663, 676‐77 (9th
Cir. 2000) (Ferguson, J., dissenting) (arguing that ten‐year‐old complainant “did not
display a sophisticated knowledge of sexual terminology that triggered a constitutional
right to present an alternative explanation for its source”); Grant, 75 F. Supp. 2d at 217
n.5 (“The court disagrees that a ten‐year‐old girl’s ‘basic’ sexual knowledge includes a
description of ejaculation.”). Indeed, one commentator has suggested “a presumptive
ban on the use of the sexual innocence inference theory of admissibility with children
older than twelve at the time of trial.” Christopher B. Reid, Note, The Sexual Innocence
Inference Theory as a Basis for the Admissibility of a Child Molestation Victim’s Prior Sexual
Conduct, 91 Mich. L. Rev. 827, 852 nn.134‐38 (1993) (collecting cases).
¶38 Here, the evidence was conflicting as to Grandson’s age at the time of the abuse.
However, it is apparent that the jury resolved that conflict in favor of the State because
it convicted Marks after being properly instructed that in order to do so, it had to find
beyond a reasonable doubt that Grandson was under the age of fourteen at the time of
the assault. Accepting the dates as believed by the jury, Grandson was fourteen when
he first disclosed the abuse to Grandmother, was interviewed at the CJC, and testified at
the preliminary hearing. By the time of trial, Grandson was sixteen years old.
Generally, there is less need to explain the sexual knowledge of a teenage boy than that
of a younger child. Due to his mental disabilities, however, Grandson was not a typical
fourteen‐ or sixteen‐year‐old child but was instead operating at the level of a much
younger child in some respects. Under the unique facts of this case, we conclude—as
the parties have presumed—that Marks had a legitimate interest in presenting evidence
of an alternative source of Grandson’s sexual knowledge. See, e.g., Hammond v. State,
660 So. 2d 1152, 1157 (Fla. Dist. Ct. App. 1995) (“Because of the mental deficiencies of
these boys, the jury was likely to perceive them as naive, innocent, and unable to
imagine sexual activity in detail.”).
¶39 In considering whether evidence concerning the prior sexual conduct of the child
complainant should be admitted to show the ability to fabricate the current allegations,
however, most courts also consider whether the prior sexual activity is similar to that
involved in the allegations against the defendant. See, e.g., State v. Oliver, 760 P.2d 1071,
20090199‐CA
21
1077‐78 (Ariz. 1988) (establishing a two‐pronged analysis in which the defendant must
first make an in camera showing that the prior sexual conduct occurred and then show
that the prior sexual conduct was similar to the charged offense); Molen, 231 P.3d at
1052 (considering “the degree of similarity between the acts of which the defendant is
accused and the prior sexual activity to which the child was exposed,” in determining
whether the defendant’s constitutional rights required admission of the evidence); State
v. Pulizzano, 456 N.W.2d 325, 332 (Wis. 1990) (requiring a defendant to show that a
complainant’s prior sexual experience closely resembled the sexual conduct involved in
the allegations against the defendant).11 Although considering the issue under rule 403,
rather than rule 412, the Utah Supreme Court held in State v. Tarrats, 2005 UT 50, 122
P.3d 581, that the trial court did not abuse its discretion in concluding that “because of
the factual dissimilarities between the two accusations, any probative value the
recantation of the prior [rape] allegation could offer would be low and would be
outweighed by its highly prejudicial nature and thus should be barred.” Id. ¶ 19.
¶40 These decisions reason that dissimilar sexual activity has little relevance to a
child’s ability to fabricate allegations of sexual abuse against a defendant. See Grant v.
Demskie, 75 F. Supp. 2d 201, 217‐18 (S.D.N.Y. 1999) (collecting cases and holding on
habeas corpus review that there was no constitutional error because the defendant “did
not proffer evidence that the prior rape [of the child complainant] was similar to the
current incident, and there was no evidence that it was relevant to explain [the
complainant’s] sophisticated knowledge”); Molen, 231 P.3d at 1052 (“Logical relevance
turns upon whether the child’s prior sexual experience or observation would have
enabled the child to describe acts of the particular type that she now ascribes to the
defendant.”). We agree that this approach properly focuses on the utility of the
evidence in rebutting the sexual innocence inference. For example, a limited sexual
experience involving inappropriate touching of a child’s buttocks does not explain the
child’s ability to describe sexual intercourse or fellatio. See, e.g., Dunlap v. Hepp, 436 F.3d
11
In State v. Pulizzano, 456 N.W.2d 325 (Wis. 1990), the Wisconsin Supreme Court
adopted a test that requires the defendant to establish five criteria before evidence
concerning the complainant’s prior sexual activity can be admitted: (1) that the prior
sexual activity occurred; (2) that the conduct closely resembled the allegations in the
present case; (3) that the evidence is relevant to a material issue in the present case;
(4) that the evidence is necessary to the defendant’s theory of defense; and (5) that the
probative value of the evidence outweighs its prejudicial effect. See id. at 333.
20090199‐CA
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739, 745 (7th Cir. 2006) (approving the Wisconsin court’s exclusion under its rape shield
law of evidence that the child complainant engaged in “seductive behavior” where the
behavior was not factually similar to the allegations against the defendant); United
States v. Powell, 226 F.3d 1181, 1197‐99 (10th Cir. 2000) (rejecting the defendant’s claim
that his confrontation rights were violated where the evidence of the thirteen‐year‐old
complainant’s prior inappropriate touching of men was not relevant to whether she
consented to travel across country with the defendant or to engage in sexual activity
with him).
¶41 Here, the fact that Grandson had simulated sexual intercourse with Sister does
not explain his ability to describe fellatio and ejaculation. See State v. Earl, 560 N.W.2d
491, 497 (Neb. 1997) (holding that evidence that the six‐year‐old complainant had
previously simulated sexual intercourse with his five‐year‐old cousin was not relevant
to complainant’s ability to fabricate allegations that the defendant had fondled his penis
and fellated him). Furthermore, there was no evidence presented that Grandson’s
behavior with Sister extended beyond this one event. On the contrary, Grandmother
testified at the preliminary hearing that she explained to Grandson that such conduct
was inappropriate and that “it hasn’t happened since then.” We therefore conclude that
the incident with Sister is not relevant to Grandson’s ability to fabricate the allegations
made against Marks.
¶42 However, at the preliminary hearing it was less clear that the only pornography
Grandson had viewed was the picture Grandmother had caught him with. After
Grandmother confronted Grandson on the second occasion and admonished him not to
access the “porno at [Marks’s house],” Grandson explained that the picture “was an old
one,” and that “it just pops up on my screen.” While the single picture confiscated from
Grandson is not probative of a level of sexual knowledge that includes ejaculation,
erection, or fellatio, we agree with Marks that the testimony at least suggests that on
other occasions pornographic material “popped up” on the computer Grandson used at
Marks’s house. If Grandson had viewed other pornographic images appearing on
Marks’s computer, it might explain a sexual knowledge broader than the conduct of the
two women in the one picture Grandmother described at the preliminary hearing.
Consequently, that evidence had some relevance as an alternative source of Grandson’s
sexual knowledge. See State v. Martin (Martin II), 2002 UT 34, ¶ 34, 44 P.3d 805 (noting
that “the standard for determining the relevancy of evidence is very low, and even
evidence with the slightest probative value is relevant” (internal quotation marks
20090199‐CA
23
omitted)); see also State v. Simmons, 759 P.2d 1152, 1155‐57 (Utah 1988) (Hall, C.J.,
concurring and dissenting) (affirming the defendant’s conviction where he was
permitted to present evidence that the child complainant learned the meaning of sexual
phrases from his friends and also obtained sexual knowledge from the family babysitter
to establish the child’s unusual ability to formulate an allegation that the defendant
caused the child to put his mouth on the defendant’s penis); State v. Moton, 749 P.2d 639,
641, 644 (Utah 1988) (affirming the trial court’s decision to allow the defense to question
the ten‐year‐old complainant about her knowledge of sexual anatomy and her
understanding of the act of fellatio where she had accused the defendant of licking her
genital area, sucking her breasts, and attempting to bribe her into licking his genitals).
¶43 In summary, we conclude that neither the incident with Sister nor the possession
of the specific pornographic picture described by Grandmother were probative of an
alternative source of Grandson’s knowledge of the type of sexual activity reported.
However, his access to pornographic pop‐ups at Marks’s house may have had some
relevance to his general level of sexual sophistication.12
3.
Both Incidents Are Relevant to Grandson’s Truthfulness.
¶44 Finally, Marks contends that Grandson’s prior sexual conduct was important for
impeachment of Grandson’s credibility on the basis of his truthfulness. At the
preliminary hearing, Grandson denied that he had viewed pornography or touched
anyone inappropriately. In contrast, Grandmother testified at the preliminary hearing
that before Grandson watched the television show on sexual abuse, he had been
involved in the incident with Sister and twice caught with pornography. Thus, Marks
contends that Grandson’s false statement should be exempted from rule 412, much like
12
The State also argues that the incident with Sister and Grandson’s possession of
pornography could not be alternative sources of knowledge allowing Grandson to
fabricate the allegations of abuse because these incidents occurred after the abuse and
may have been prompted by sexual curiosity provoked by it. We agree with Marks,
however, that the relevant inquiry for purposes of assessing the value of this evidence is
whether it occurred before the complainant made the allegations against the defendant.
The defense theory is that these other activities gave Grandson the ability to fabricate
allegations against Marks and that all aspects of the claims are false, including
Grandson’s account of when it occurred.
20090199‐CA
24
false allegations of rape. However, we see a significant difference between evidence
that the complainant previously fabricated charges similar to those now made against a
defendant and evidence of actual sexual conduct offered solely to prove untruthfulness.
Where prior rape allegations are untrue, they may not involve sexual conduct at all and
thus do not fall within the scope of rule 412. See State v. Tarrats, 2005 UT 50, ¶ 23, 122
P.3d 581 (stating that rule 412 does not exclude “[e]vidence offered to prove allegedly
false prior claims by the victim” (alteration in original) (quoting Utah R. Evid. 412
advisory comm. note)). Here, Marks seeks to introduce the testimony of Grandmother
concerning the pornography and the incident with Sister not to show that they never
happened but to establish that Grandson was untruthful when he denied them. Thus,
this is not a situation such as a prior false allegation of sexual assault, where the
protections of rule 412 are inapplicable because the evidence does not relate to sexual
conduct.
¶45 Nevertheless, we are equally unpersuaded by the State’s argument that we
should reject outright Marks’s claim that the evidence is relevant to Grandson’s
truthfulness under the Utah Supreme Court’s decision in State v. Boyd, 2001 UT 30, 25
P.3d 985. There, the defendant argued that rule 412 did not govern the admissibility of
evidence that the complainant engaged in consensual sexual intercourse with someone
other than the defendant on the night of the rape. See id. ¶ 37. The defendant advanced
two theories for that argument. First, the defendant claimed that the evidence could be
used to impeach the complainant’s testimony that the defendant “took something from
[her] that [she] can’t ever take back,” which he interpreted as being a false statement
that she was a virgin at the time of the assault. See id. ¶ 33 (internal quotation marks
omitted). Second, the defendant claimed that the prior encounter was offered to prove
that “‘a person other than the accused was the source of the . . . injury, or other physical
evidence.’” Id. ¶ 38 (omission in original) (quoting Utah R. Evid. 412(b)(1)). The Boyd
court agreed that the evidence was relevant to the source of “other physical evidence”
and therefore was expressly excepted from the rule. See id. In a footnote, the Boyd court
rejected the defendant’s alternative argument that evidence offered for impeachment
purposes is similarly exempted from the scope of the rule, stating, “There is no
exception in rule 412 that allows for the admission of past sexual conduct to impeach
witnesses.” Id. ¶ 38 n.4. Thus, the footnote merely reflects the supreme court’s
agreement with the advisory committee notes that rule 412 presumptively excludes
evidence of the complainant’s prior sexual activity, even if such evidence is offered for
impeachment purposes. See Utah R. Evid. 412 advisory comm. note (excluding
20090199‐CA
25
evidence of the complainant’s sexual conduct, “whether offered as substantive evidence
or for impeachment, except in designated circumstances”). There is nothing in the
supreme court’s decision in Boyd, however, that suggests evidence offered for
impeachment purposes must be categorically excluded if to do so would violate the
defendant’s constitutional rights.13 See Boyd, 2001 UT 30, ¶ 28 (“As a general rule, newly
discovered evidence does not warrant a new trial where its only use is impeachment.”
(emphasis added)).
¶46 Marks claims that the fact that Grandson testified falsely at the preliminary
hearing was “important for impeachment” because it would have countered the State’s
claim that Grandson is “honest[] and incapable of telling a convincing lie.” Marks
further contends that the only evidence against him was the uncorroborated testimony
of Grandson, and therefore, Grandson’s prior untruthfulness at the preliminary hearing
makes it less probable that the abuse actually occurred. We agree that the evidence has
some relevance. See Martin II, 2002 UT 34, ¶ 34 (explaining that the standard for
relevance is low).
¶47 In sum, with regard to the evidence of Grandson’s prior sexual behavior, we
conclude that neither incident is relevant to Grandson’s motive to fabricate allegations
against Marks. We further determine that while the incident with Sister has no
relevance to Grandson’s ability to fabricate allegations that Grandfather orally
sodomized him, the inference that Grandson may have been exposed to more extensive
pornographic images while using Marks’s computer may have some relevance on the
issue of Grandson’s sexual knowledge. Finally, both incidents have some relevance to
the issue of Grandson’s credibility. Thus, we must now consider whether, in light of
that relevance, the exclusion of the evidence was disproportionate to the purposes of
rule 412. To do so, we first address the goals of rule 412 and whether the exclusion of
the particular evidence is consistent with those goals. We next analyze the extent to
which the exclusion of the evidence will further these goals. Finally, we determine
13
As the advisory committee note to rule 412 indicates, the exception in
“[s]ubparagraph (b)(3) states a truism” in that the rule cannot be used to exclude
otherwise admissible evidence where the defendant has a constitutional right to the use
of that evidence in the presentation of a complete defense. See Utah R. Evid. 412
advisory comm. note; see also U.S. Const. art. VI, cl. 2 (“This Constitution . . . shall be the
supreme Law of the Land . . . .”).
20090199‐CA
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whether the exclusion of the evidence under the facts present here is disproportionate
to the purposes of the rule. In doing so, we consider whether admission of the evidence
was needed to advance a complete defense.
B.
The Purposes of Rule 412
¶48 The goals of rule 412 include the following: protecting victims of sexual assault
from humiliation, encouraging victims to report sexual crimes, and preventing the
introduction of “irrelevant and collateral issues that may confuse or distract the jury,”
see Tarrats, 2005 UT 50, ¶¶ 20, 24. The rule also “‘safeguards the alleged victim from the
invasion of privacy, potential embarrassment and sexual stereotyping that is associated
with public disclosure of intimate sexual details and the infusion of sexual innuendo
into the fact finding process.’” Boyd, 2001 UT 30, ¶ 46 (quoting Utah R. Evid. 412
advisory comm. note). In addition, rule 412 is designed to protect the complainant from
prejudice or hostility. See Tarrats, 2005 UT 50, ¶ 21 (noting that, even where it has some
relevance, evidence of the complainant’s past sexual history “has an unusual propensity
to unfairly prejudice, inflame, or mislead the jury and is likely to distort the jury’s
deliberative process” (internal quotation marks omitted)). We now consider these
purposes in connection with the evidence excluded by the trial court.
1.
Exclusion of the Sexual Simulation Evidence Is Consistent with the Purposes of
of Rule 412.
¶49 Undoubtedly, evidence that Grandson was discovered pretending to have sexual
intercourse with his seven‐year‐old sister is disturbing. However, we view the
likelihood of sexual stereotyping associated with such evidence differently than when
the prior sexual activity of an adult is at issue. The jury might consider these activities a
manifestation of sexual curiosity, a result of being exposed to age‐inappropriate
material, or a reaction to prior abuse. Indeed, where children are involved, evidence of
past sexual activity seems likely to create sympathy, concern, or anger on their behalf,
rather than hostility.14 When children are sexualized, it is not the fault of the child but
14
For that reason, a small minority of jurisdictions have concluded that
involuntary sexual conduct, including any sexual activity experienced by a child, “is not
evidence of unchastity and therefore is not ‘sexual conduct’ within the ambit of state
(continued...)
20090199‐CA
27
of some adult, either by intentional acts of abuse directed at that child (or at another
child who then mimics the inappropriate behavior), or by careless exposure of the child
to age‐inappropriate material. We are confident that reasonable jurors are aware of that
distinction. Even assuming that the potential for hostility may be greater when one
child has involved another child in sexual conduct, we consider the danger of such
prejudice here as minimal in light of Grandson’s mental disabilities.
¶50 Nevertheless, the likely impact on a child of having these private matters made
public is apparent. A child is likely to be confused and frightened about the past
experience, the child may have inadequate vocabulary to discuss it, and the stress of
confronting those memories may increase the likelihood that the child will be unable to
testify competently about the current allegations. Furthermore, a parent who has
already seen the emotional impact on his son or daughter caused by the abuse itself
may be unwilling to subject the child to the additional trauma of being questioned
about earlier victimization. For these reasons, we conclude that rule 412’s goal of
protecting victims of sexual crimes from embarrassment and humiliation, and of
encouraging them to report the crimes, are strongly implicated when the complainant is
a child.
¶51 Here, the risk that Grandson, as well as Sister, would suffer embarrassment and
humiliation as a result of the public disclosure of their behavior is great. Furthermore,
the incestuous nature of the conduct, the risk of a preexisting stigma due to Grandson’s
mental disabilities, and Sister’s young age increase these concerns. Thus, we conclude
that the sexual‐simulation incident is precisely the type of evidence rule 412 was
designed to exclude.
¶52 One of rule 412’s other purposes is to avoid the introduction of irrelevant
evidence that will unduly consume time and confuse the issues. See State v. Tarrats,
2005 UT 50, ¶ 24, 122 P.3d 581. Because the jury might engage in speculation about
what prompted the incident with Sister, admission of the evidence could result in
confusion of the issues to be decided, as well as “the infusion of sexual innuendo into
the fact finding process,” see State v. Boyd, 2001 UT 30, ¶ 46, 25 P.3d 985. Furthermore,
14
(...continued)
rape shield laws.” See, e.g., Grant v. Demskie, 75 F. Supp. 2d 201, 212 (S.D.N.Y. 1999)
(collecting cases).
20090199‐CA
28
both the prosecution and the defense may have focused measurable time and effort on
developing the facts surrounding the tangential incident with Sister. And while
Grandmother could provide testimony concerning her observations, only embarrassing
and intrusive questioning of the children could reveal what actually triggered their
conduct.
¶53 Additionally, as the trial court correctly noted, Grandson had testified
inconsistently on a number of occasions about his age, to whom he disclosed the abuse,
and the details of what occurred between him and Marks. The fact that Grandson is
easily confused, struggles with the months of the year, and has other memory lapses
relevant to his ability to relate events truthfully could be explored by the defense
without going into the details of the sexual‐simulation incident. For all of these reasons,
we conclude that despite our determination that the inconsistencies regarding
Grandson’s sexual experience has some relevance for impeachment purposes, the trial
court’s exclusion of the evidence relating to the incident with Sister was consistent with
the purposes of rule 412.
2.
Although Consistent with the Purposes of Rule 412, the Exclusion of the
Evidence of Grandson’s Access to Pornography Does Not Implicate Those
Purposes to the Same Extent as the Evidence of the Incident with Sister.
¶54 At the time of trial, Grandson was sixteen years old, with the mental capacity of a
third‐ or fourth‐grade student. In light of his age and mental disabilities, it seems
unlikely that the jury would judge Grandson harshly for being curious about naked
women. Nevertheless, while not as shocking as the incident with Sister, use of Marks’s
computer to view and retain at least one pornographic picture is not something that
Grandson is likely to want made public. The public discussion of that fact may have
caused Grandson some humiliation and embarrassment, thereby discouraging other
sexual assault victims from coming forward.
¶55 There is also some risk that the jury would become confused and equate
Grandson’s use of Marks’s computer to download pornography as proof that Marks
condoned such conduct. Despite that risk, however, we do not believe it would be
difficult to clarify the matter for the jury. The presentation of the evidence necessary to
inform the jury of Grandson’s possession of the pornography and how he obtained it,
and to dispel any confusion about Marks’s complicity in its acquisition, could be
20090199‐CA
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presented with little additional burden and would prevent the jury from being
“confuse[d] or distract[ed]” by “collateral issues,” see Tarrats, 2005 UT 50, ¶ 24.
¶56 In addition, unlike the incident with Sister, Grandson’s exposure to pornographic
images is not direct evidence of his sexual activity.15 But see Utah R. Evid. 412 advisory
comm. note (indicating that sexual behavior “includes mental activities, such as
fantasies or dreams”). Nor is it an activity “that impl[ies] sexual intercourse or sexual
conduct,” which includes “evidence of a victim’s use of contraceptives, affliction with a
venereal disease, or mothering of an illegitimate child.” See Tarrats, 2005 UT 50, ¶ 22;
see also Utah R. Evid. 412 advisory comm. note (listing the same examples and
providing citations for each). Rather, it may instead fall within rule 412’s exclusion of
“evidence that does not directly refer to sexual activities or thoughts but that may have
a sexual connotation for the fact finder.” Id. The different nature of the conduct
involved may impact the extent to which the evidence of it must be excluded in order to
effectuate the purposes of the rule. The early decisions of the Utah Supreme Court are
illustrative of this difference.
¶57 Prior to the adoption of rule 412 of the Utah Rules of Evidence, although
evidence of the complainant’s past sexual activity was excluded under rule 403, other
evidence of general sexual sophistication was admitted to allow the accused to refute
the sexual innocence inference. See State v. Simmons, 759 P.2d 1152, 1156‐57 (Utah 1988)
(Hall, C.J., concurring and dissenting) (permitting cross‐examination about the child
complainant’s sexual knowledge obtained from sources other than prior sexual
15
While Marks has not challenged this issue, not all courts agree that evidence
such as viewing pornography falls within the scope of rule 412. See, e.g., State v. Mason,
578 N.E.2d 1351, 1353 (Ill. App. Ct. 1991) (“[T]he rape‐shield statute applies to ‘prior
sexual activity’ or ‘reputation.’ The viewing of pornographic videotapes by a curious
seven year old does not constitute evidence of either.”); People v. Arenda, 330 N.W.2d
814, 818 (Mich. 1982) (distinguishing the child victim’s “sexual conduct with others,”
which is inadmissible under Michigan’s rape shield law, from sexual knowledge gained
from other experiences such as “reading a book, seeing a movie, conversing with others,
schoolwork or witnessing others engaged in such activity”). But see Payne v. State, 600
S.E.2d 422, 424 (Ga. Ct. App. 2004) (analyzing evidence that child complainant viewed a
pornographic movie as “part of her sexual history or behavior,” which was
presumptively inadmissible under Georgia’s rape shield law).
20090199‐CA
30
experience); State v. Moton, 749 P.2d 639, 641‐42 (Utah 1988) (affirming the defendant’s
conviction where, although the trial court prohibited cross‐examination of the ten‐year‐
old complainant concerning her prior sexual experience, it permitted the defense to
question the child about her sexual knowledge); Butterfield v. Cook, 817 P.2d 333, 340
(Utah Ct. App. 1991) (holding that error in restricting closing argument was harmless
where jury heard evidence that the complainant “was exposed to adult oriented videos
including the pornographic movie playing the night of the incident”). In determining
whether evidence of a sexual nature should be excluded under rule 403, Utah courts
balanced the same competing interests between the accused’s right to confrontation and
the protection of the complainant that are relevant to whether the exclusion of the
evidence would be appropriate under rule 412. Therefore, we find these pre–rule 412
cases supportive of a less‐restrictive view of admissibility where the evidence of the
child complainant’s atypical sexual sophistication does not involve the child’s prior
engagement in sexual activity.
¶58 Applying that distinction to the facts of the case, we conclude that while both the
pornography incident and the behavior with Sister may fall within the scope of rule
412’s exclusionary presumption, the purposes of the rule are more strongly implicated
with respect to the incident of sexual simulation.16 Cf. State v. Martin (Martin II), 2002
UT 34, ¶ 42, 44 P.3d 805 (“While we acknowledge that rule 412 should be construed
broadly in order to fully effectuate the policy considerations underlying its prohibitions,
we refuse to extend the rule’s circumference of influence to evidence as sexually
innocuous as that at issue here [where the complainant accepted a ride from a stranger
on a prior occasion].”).
C.
The Impact of the Exclusion of the Evidence on Marks’s Right To Confront
Grandson
¶59 We now consider whether the exclusion of the evidence was arbitrary or
disproportionate to the purposes of the rule in light of Marks’s right to present a
complete defense. See State v. Tarrats, 2005 UT 50, ¶¶ 35‐37, 122 P.3d 581. Because we
16
The trial court recognized this difference with respect to rule 403, stating that
“because the evidence lacks probative value but would be highly prejudicial (especially
evidence of the incident with [Grandson] and his sister), the evidence should also be
excluded under rule 403.”
20090199‐CA
31
have previously determined that neither the sexual‐simulation evidence nor Grandson’s
access to pornography are relevant to his motive to make false allegations against
Marks, we do not further consider Marks’s right to present the evidence for that
purpose. Likewise, we have concluded that there is nothing about the incident with
Sister or the possession of a picture of two naked women that explains Grandson’s
ability to make the particular allegations against Marks at issue here. Thus, for
purposes of our analysis of whether the exclusion of the evidence was arbitrary or
disproportionate to the purposes of rule 412, we consider only Marks’s claim that the
evidence that Grandson accessed pornography was relevant to show Grandson’s more
general sexual knowledge and to attack his truthfulness.
1.
The Exclusion of the Evidence that Grandson May Have Had Access to Internet
Pornography, Offered To Show His Sexual Knowledge, Was Not
Disproportionate to the Purposes of Rule 412.
¶60 As discussed, the protections afforded by rule 412 may be less critical with
respect to the evidence concerning Grandson’s perusal of pornographic pop‐ups at
Marks’s house than with respect to the sexual‐simulation incident. Although under
some circumstances a defendant may have a right to offer such evidence to rebut the
sexual innocence inference, we agree with the trial court that this is not such a case.
¶61 First, Marks seems to argue that he should have been permitted to ask the jury to
infer from Grandson’s possession of the picture of the naked women, obtained from the
internet, that he had been exposed to pornography more generally. Without some
foundational information, however, this inference is extremely weak. The defense here
did not seek or proffer the additional evidence necessary to lay such a foundation. Cf.
Grant v. Demskie, 75 F. Supp. 2d 201, 217‐18 (S.D.N.Y. 1999) (“[B]ecause [the defendant]
did not proffer evidence that the prior rape was similar to the current incident, and
there was no evidence that it was relevant to explain [the complainant’s] sophisticated
knowledge of an erection and ejaculation, the trial judge did not commit constitutional
error by excluding evidence about the prior rape.” (footnote omitted)). For example,
the defense did not ask for clarification from Grandmother about the “porno at
[Marks’s] house,” or from Grandson about how “it just pops up on [his] screen.” As a
result, there is nothing in the record to indicate how often such pornographic pop‐ups
appeared, whether Grandson studied them on any other occasions, or the types of
sexual activity they depicted. In other words, there was no evidence presented or
20090199‐CA
32
proffered that Grandson had viewed pornography on more than the two occasions on
which Grandmother caught him with a picture of naked women. Thus, there is likewise
no evidence that Grandson viewed sexual materials that would have given him a basis
for fabricating the specific allegations that he made against Marks. Although Marks
claims he was stymied in his attempts to explore Grandson’s sexual knowledge due to
the false testimony at the preliminary hearing, the defense did nothing to attempt to
refresh Grandson’s memory by calling his attention to pop‐ups on Marks’s computer or
to explore Grandmother’s reference to “the porno at [Marks’s] house.” Cf. State v.
Warner, 79 Utah 510, 13 P.2d 317, 319 (1932) (noting defense counsel’s extensive efforts
to obtain confirmation from the complainant that she and her half‐brother had
discussed making allegations against the defendant). Consequently, the trial court, as
well as the jury, could only speculate as to the relevance of Grandmother’s testimony
about the “porno at [Marks’s house]” to Grandson’s ability to describe the events he
claimed occurred with Marks.
¶62 In addition, the trial court’s ruling was made, in part, in reliance on the
representation that Marks intended to provide expert testimony designed to dispel the
notion that mentally disabled persons are sexually naive.17 In light of Grandmother’s
vague references to pop‐ups on Marks’s computer and the assurance that the defense
was prepared to provide expert testimony indicating that persons with mental
disabilities are not necessarily sexually naive, the trial court correctly determined that
the evidence was only marginally relevant to Grandson’s ability to fabricate the
allegations against Marks. We therefore conclude that exclusion of the evidence offered
for that purpose was not disproportionate to the goals of rule 412 because those goals
were implicated and the probative value of the proposed evidence was low.
2.
The Exclusion of the Evidence Concerning the Incident with Sister and
Grandson’s Access to Pornography, Offered To Impeach Grandson, Was Not
Disproportionate to the Purposes of Rule 412.
¶63 Marks further contends that by excluding the evidence that Grandson lied at the
preliminary hearing, the trial court unconstitutionally prohibited him “‘from engaging
in otherwise appropriate cross‐examination designed to show a prototypical form of
17
Despite that assurance, the defense did not elicit such testimony from its expert
at trial.
20090199‐CA
33
bias on the part of the witness, and thereby to expose the jury to the facts from which it
could appropriately draw inferences relating to the reliability of witnesses.’” State v.
Clark, 2009 UT App 252, ¶ 16, 219 P.3d 631 (alterations omitted) (quoting Delaware v.
Van Arsdall, 475 U.S. 673, 680 (1986)), cert. denied, 225 P.3d 880 (Utah 2010). Marks calls
our attention to the fact that there is no physical or other corroborative evidence of the
abuse. Because the critical issue to be decided by the jury was whether Grandson’s
uncorroborated allegations were truthful, Marks contends that the evidence should
have been admitted to challenge Grandson’s credibility. See generally State v. Martin
(Martin II), 2002 UT 34, ¶ 33, 44 P.3d 805 (stating that where both the defendant and the
complainant testified, giving vastly different versions of their sexual encounter, the
“central issue” at trial was “whom to believe” (internal quotation marks omitted)). We
are not convinced that Marks had a constitutional right to present the evidence of
Grandson’s access to pornographic pop‐ups or the incident with Sister for this purpose.
¶64 First, nothing about Grandson’s prior untruthful testimony would have exposed
the jury to facts supporting an inference that Grandson’s testimony about the abuse was
untruthful. See Clark, 2009 UT App 252, ¶ 16. Rather, the defense offered the evidence
to establish that because Grandson lied under oath at the preliminary hearing as to a
different topic, he was likely also lying about the abuse at trial. We are not convinced
that this is the type of prototypical cross‐examination that requires introduction of the
evidence in light of the purposes underlying rule 412. Cf. State v. Boyd, 2001 UT 30, ¶ 28,
25 P.3d 985 (“As a general rule, newly discovered evidence does not warrant a new trial
where its only use is impeachment.”). Proof that Grandson viewed pornography on a
previous occasion or engaged in simulated sex does not call into question the accuracy
of any of the details of Grandson’s description of the abuse. Cf. State v. Lenkart, 2011 UT
27, ¶ 41 (noting that the new evidence “strongly corroborated [the defendant’s]
testimony,” and “would have provided an alternative explanation” for evidence
supporting the complainant’s testimony that she did not consent); Martin II, 2002 UT 34,
¶ 49 (holding that the defendant was entitled to a new trial on charges of rape where
newly discovered evidence that the complainant had accepted a ride with a stranger on
a previous occasion had a “reasonable likelihood of both discrediting [the
complainant’s] testimony [that the defendant forced her to enter his vehicle at gun
point] and making [the defendant’s] version of events [that she willingly went for a
ride] more credible”). Therefore, the trial court concluded that Marks could adequately
challenge Grandson’s truthfulness and other aspects of his credibility by questioning
Grandmother without raising Grandson’s sexual experiences, and by cross‐examining
20090199‐CA
34
Grandson on the inconsistencies among his descriptions of the timing and the details of
the encounter with Marks.
¶65 Although decided under rule 403 before Utah adopted rule 412, the Utah
Supreme Court’s opinion in State v. Williams, 773 P.2d 1368 (Utah 1989), provides a
helpful analysis of whether a complainant’s prior untruthful statements about her
sexual history can be used for impeachment purposes. There, the defendant claimed
that his confrontation rights were violated when the trial court excluded evidence that
his alleged rape victim had twice lied about consensual sexual activity with another
man on the same night. See id. at 1369‐70. The defendant argued that the evidence was
relevant, among other purposes, to show that the complainant lacked credibility. See id.
The supreme court disagreed, holding that the trial court did not exceed its discretion in
excluding the evidence under rule 403, both because “the trial court prudently
considered the reasons behind the victim’s lapse of integrity” and because the
defendant “was permitted to cross‐examine the victim about some of her inconsistent
statements to the police.” Id. at 1371. The Williams court explained that the trial court
had not “prohibited all inquiry into the possibility that the victim lacked credibility or
that the facts could have been as defendant claimed.” Id. at 1373 (footnote omitted).
Rather, defense counsel “cross‐examined the victim, and defendant took the stand and
developed his theory of the case. In both contexts, defendant had an opportunity to
attack the credibility of the complainant and challenge her veracity.” Id. Consequently,
the supreme court concluded that “[t]he exclusion of evidence of the victim’s
consensual intercourse did not deprive defendant of his constitutional confrontation
rights.” Id.
¶66 As in Williams, the defense here cross‐examined Grandson concerning the
inconsistencies in his versions of the allegations against Marks. While Marks did not
take the stand, he had the opportunity to do so. And the defense provided expert
testimony on the “various red flags,” raised by the “significant difference[s]” in
Grandson’s description of “core and salient” events concerning the “episode of sexual
abuse.” The defense’s expert also testified concerning the impact of a mental disability
on the person’s capacity to lie, stating, “the bottom line, clinically, is a young person
with a mild cognitive impairment is as capable as you and I of being truthful. And as
capable as you and I of being deceptive.” During closing argument, defense counsel
reminded the jury of the “great deal of conflict in [Grandson’s] testimony when he talks
about when he made this allegation against [Marks]”; that Grandson is so “eager to
20090199‐CA
35
please” that “when a person stands up that wants something else from him, he changes
[his testimony] and he changes it back again”; and that the inconsistencies in his
description of the abuse reflect his inability to tell a convincing lie due to his disability.
Indeed, the defense quoted from conflicting portions of Grandson’s testimony to
illustrate those discrepancies.
¶67 Under these circumstances, we agree with the trial court that the exclusion of the
evidence that Grandson denied viewing pornography and touching anyone
inappropriately at the preliminary hearing did not violate Marks’s confrontation rights.
The defense adequately focused the jury on Grandson’s lack of credibility by
highlighting the other inconsistencies in his statements, including contradictory
testimony given under oath directly related to the allegations against Marks. Because
Marks was “provided a reasonable opportunity to adequately explore, by alternative
methods, the substance of his complaints regarding the veracity of [Grandson’s]
allegations, any need to disclose [Grandson’s] prior sexual conduct [was] substantially
diminished.” See State v. Quinonez‐Gaiton, 2002 UT App 273, ¶ 17, 54 P.3d 139 (citations
omitted). Therefore, the trial court properly denied Marks’s pretrial request to use the
evidence of Grandson’s possession of pornography and the incident with Sister for
impeachment purposes.
3.
Marks Did Not Ask the Trial Court To Reconsider Its Ruling Based on Events at
Trial.
¶68 Even if the trial court’s pretrial ruling was correct, Marks contends that he was
entitled to offer the evidence of Grandson’s dishonesty at trial because “it would have
countered the State’s claim that Grandson was sexually innocent, honest, and incapable
of telling a convincing lie.” Although not decided under rule 412, our supreme court
considered a similar argument in State v. Martin (Martin II), 2002 UT 34, 44 P.3d 805.
There, the defendant was convicted of rape, aggravated kidnapping, and forcible
sodomy based on the complainant’s testimony that the defendant had abducted her
from a grocery store parking lot. See id. ¶¶ 3, 23. At trial, the defendant testified that he
approached the complainant after they “exchanged eye contact” in the store and that
she voluntarily went for a ride and consented to sexual activity. See id. ¶¶ 13‐20. There
was no physical evidence of forcible sexual contact, and the central issue of the case was
“whose version of events to believe.” Id. ¶ 38. The State urged the jury to accept the
complainant’s account because it comported with common sense that she would not
20090199‐CA
36
have entered the vehicle of a stranger willingly. See id. In support of that argument, the
State introduced evidence of the complainant’s “character as a dependable and
responsible individual,” including testimony from the complainant’s sister. See id. The
jury found the defendant guilty, and the trial court denied his motion for a new trial.
See id. ¶¶ 23, 27.
¶69 On appeal, the Utah Supreme Court remanded for additional discovery. See id.
¶ 51. That discovery revealed that the complainant had made a prior rape allegation
based on an incident that had allegedly occurred after she accepted a ride from a
stranger. See id. ¶ 25; see also State v. Martin (Martin I), 1999 UT 72, ¶ 16, 984 P.2d 975
(remanding for further discovery). Based on that evidence, the defendant again moved
for a new trial. See Martin II, 2002 UT 34, ¶ 26. The trial court denied the defendant’s
motion, concluding that the newly discovered evidence was impermissible “character
propensity evidence,” namely, “that because [the complainant] had previously gotten
into a stranger’s car willingly, she must have conducted herself similarly in this case.”
See id. ¶ 27 (internal quotation marks omitted). The defendant again appealed. See id.
¶ 28.
¶70 In Martin II, the supreme court acknowledged that “rule 404 prohibits
introduction of evidence concerning ‘a person’s character or a trait of character . . . for
the purpose of proving action in conformity therewith on a particular occasion.’” Id.
¶ 36 (omission in original) (quoting Utah R. Evid. 404(a)); see also State v. Vargas, 2001
UT 5, ¶ 34 n.11, 20 P.3d 271 (indicating in dicta that evidence that a prosecution witness
lied on a previous occasion was likely properly excluded under Utah Rule of Evidence
608(b) as inadmissible extrinsic evidence of “[s]pecific instances of the conduct of a
witness, for the purpose of attacking or supporting the witness’[s] credibility” (quoting
Utah R. Evid. 608(b))). However, the supreme court explained that the State had
“placed [the complainant’s] character into question” by introducing evidence that she
was responsible and dependable and by arguing that “responsible people do not
willingly enter the vehicle of a stranger only moments after initially encountering the
individual.”18 Martin II, 2002 UT 34, ¶ 38. Noting that rule 404(a) allows a criminal
18
The Martin II court also held that rule 412 would not have barred admission of
the evidence because “the evidence of [the complainant] accepting a ride from a
stranger . . . simply possesses no sexual connotation, insinuation, or overtone.” 2002 UT
(continued...)
20090199‐CA
37
defendant “to attempt to discredit, with evidence of ‘specific instances of conduct,’
testimony of an alleged victim’s relevant character once it had been introduced,” the
supreme court concluded that rule 404(a) did not preclude admission of the evidence.
See id. ¶ 38; see also Utah R. Evid. 404(a)(2).19
¶71 Like the defendant in Martin II, Marks contends that evidence of Grandson’s
untruthfulness at the preliminary hearing should have been admitted to challenge
Grandson’s credibility because the prosecution placed Grandson’s character for
truthfulness at issue at trial. See State v. Lenkart, 2011 UT 27, ¶ 41 (noting that the
“prosecutor heavily referenced and emphasized the testimony throughout the
proceedings”). In support of that argument, Marks points us to testimony elicited at
trial, including, Uncle’s statement that Grandson “doesn’t make up lies and he’s a good
kid”; Grandson’s special education teacher’s indication that Grandson “was a very
pleasant, compliant child” who was “[a]nxious to please,” and her opinion that children
with mental disabilities are terrible at lying because “they take it over the top”; and the
State’s expert’s observation that Grandson’s attestation of his own truthfulness, made
while he was alone during the CJC interview but still being recorded, “was very telling
of his state of mind.”20
¶72 Marks also relies on comments made during closing argument. He notes that the
prosecutor read the transcript from the CJC interview to the jury where Grandson
states, “I told my grandma I wasn’t too scared to tell the truth. I wouldn’t lie to police
18
(...continued)
34, ¶ 42, 44 P.3d 805. Indeed, the defense in Martin II clarified that it “did not intend to
introduce any evidence of [the complainant’s] past sexual activity.” Id. ¶ 41.
19
Rule 404(a) provides in relevant part, “(a) Character evidence generally. Evidence
of a person’s character or a trait of character is not admissible for the purpose of
proving action in conformity therewith on a particular occasion, except: . . . (a)(2)
Character of Alleged Victim. Evidence of a pertinent trait of character of the alleged
victim of the crime offered by an accused . . . to rebut the same . . . .” Utah R. Evid.
404(a)(2).
20
The record indicates, however, that some of the testimony of which Marks
complains was elicited in response to questions from the defense.
20090199‐CA
38
because my grandma told me how bad that is to lie to people. I told the truth because I
never lie. Well, I do, but not with people like this I don’t lie to.” After reading
Grandson’s statement, the prosecutor commented, “And [Grandson] is honest. He
makes a point of saying, ‘I wouldn’t lie to the police.’” The prosecutor then argued that
Grandson’s comments were a “window of what’s going on in [Grandson’s] mind,” and
that “[t]here is just no evidence that [Grandson] is lying in this case.” Based on these
events at trial, Marks argues that the State put Grandson’s truthfulness at issue and the
evidence that Grandson lied was critical to his defense.
¶73 We agree with Marks that subsequent developments may affect the continuing
wisdom of a pretrial rule 412 decision and that this may be a case where reassessment
of the trial court’s in limine ruling would have been appropriate. See State v. Kirkwood,
2002 UT App 128, ¶ 14, 47 P.3d 111 (“By its nature, an in limine ruling is subject to
change by the trial court.” (citing Luce v. United States, 469 U.S. 38, 41 (1984))); see also R.
Collin Mangrum & Dee Benson, Mangrum & Benson on Utah Evidence 233 (2009‐2010 ed.)
(“Because Utah’s rape shield law excludes otherwise relevant and admissible evidence,
the prosecutor must be careful not to abuse the protection afforded by the statute by
implying that the victim is more sexually pure than the facts suggest. A false innuendo
raised by the prosecution may constitute a waiver of the rape shield.”).21 But see State v.
Boyd, 2001 UT 30, ¶ 46, 25 P.3d 985 (rejecting the defendant’s argument that the
prosecution waived the protections of rule 412 when its expert suggested that the
complainant was a virgin before the rape and stating, “the safeguards of rule 412 are for
the benefit of the victim herself . . . and only she could have waived them”). However,
we need not decide whether subsequent events should have altered the analysis
concerning the admission of the rule 412 evidence here because Marks did not ask for
21
The Missouri Court of Appeals agrees. See State v. Samuels, 88 S.W.3d 71, 82‐83
(Mo. Ct. App. 2002) (holding that the prosecutor’s comments in opening statement
about the nine‐year‐old complainant’s unusual sexual knowledge created an inference
that the allegations against the defendant were the source of that knowledge and,
therefore, the trial court should not have denied the defendant’s repeated attempts at
trial to present evidence of the child’s prior sexual experience to explain that sexual
knowledge, despite the trial court’s pretrial exclusion of the evidence under rule 412).
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any relief in response to the testimony at trial or the prosecutor’s closing argument.22
See State v. Dibello, 780 P.2d 1221, 1226 (Utah 1989) (“Whatever merit there may be to
this claim of error, the fact is that the defense made no objection at trial to these
remarks.”).
¶74 Although the Utah Rules of Evidence provide that a party need not renew an
objection to preserve a claim where the trial court has made a definitive ruling on the
admissibility of the evidence at or before trial, see Utah R. Evid. 103(a)(2), Marks relies
on events that occurred after the trial court made that in limine ruling. In order to give
the trial court an opportunity to correct the error he now claims, Marks was required to
renew his request after the events he claims heightened the need for the evidence had
occurred. See State v. Cram, 2002 UT 37, ¶ 9, 46 P.3d 230 (“[T]he doctrine of waiver has
application if defendants fail to raise claims at the appropriate time at the trial level, so
the judge has an opportunity to rule on the issue.” (internal quotation marks omitted));
see also State v. Samuels, 88 S.W.3d 71, 83 (Mo. Ct. App. 2002) (rejecting the defendant’s
challenge to the exclusion of evidence of the nine‐year‐old complainant’s sexual activity
with others based on comments in the prosecution’s closing argument inferring that she
gained her unusual sexual knowledge as a result of the defendant’s conduct where the
defense failed to object at the earliest possible opportunity). Consequently, we limit our
consideration of Marks’s claim on appeal that the evidence was necessary to impeach
Grandson’s truthfulness to the facts known to the trial court at the time of its ruling. See
IHC Health Servs., Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 36, 196 P.3d 588 (rejecting
appellant’s claim that the trial court’s decision was clearly erroneous due to appellant’s
failure “to show that the district court should have ruled in its favor based on the law
and evidence before it at the time of the decision”). Under those facts, we agree with
the trial court that Marks should have been able to attack Grandson’s credibility
adequately by pointing out the inconsistencies among Grandson’s versions of events.
22
When the defense did object, the trial court was responsive to its concerns. For
example, during direct examination, the State’s expert began to opine as to Grandson’s
sexual innocence, prompting an objection and motion to strike the response. The trial
court granted the motion and admonished the jury to disregard that evidence.
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¶75 Based on the foregoing, we conclude that the exclusion of the evidence was not
arbitrary and did not exceed the purposes of rule 412. We also hold that the trial court
acted within its discretion in the application of the rule.23
II. Motion To Dismiss
¶76 Marks further argues that the State failed to make out a prima facie case against
him because Grandson’s testimony was too inconsistent to provide sufficient evidence
that abuse occurred and because the evidence was insufficient to prove that Grandson
was under the age of fourteen at the time of the incident.
¶77 A conviction must be based on “‘substantial reliable evidence.’” State v. Robbins,
2009 UT 23, ¶ 14, 210 P.3d 288 (quoting State v. Ramsey, 782 P.2d 480, 483 (Utah 1989)).
Thus, even “[t]hough the court must ordinarily accept the jury’s determination of
witness credibility, when the witness’s testimony is inherently improbable, the court
may choose to disregard it.” Id. ¶ 16 (citing State v. Workman, 852 P.2d 981, 984 (Utah
1993)). Inherently improbable testimony is either “(1) physically impossible or (2)
apparently false.” Id. (citing Workman, 852 P.2d at 984). Physically impossible
testimony occurs “when what the witness claims happened could not have possibly
occurred.” Id. ¶ 17. “[T]estimony is apparently false if its falsity is ‘apparent, without
any resort to inferences or deductions.’” Id. (quoting Workman, 852 P.2d at 984).
Likewise, testimony is apparently false if it is “incredibly dubious” or “where a sole
witness presents inherently contradictory testimony that is equivocal or the result of
coercion, and there is a complete lack of circumstantial evidence of guilt.” Id. ¶ 18
(internal quotation marks omitted).
¶78 However, disregarding witness testimony as inherently false should be an
uncommon course of action, undertaken “only when the court is convinced that the
credibility of the witness is so weak that no reasonable jury could find the defendant
guilty beyond a reasonable doubt.” Id. ¶ 18. Although the supreme court in State v.
Robbins, 2009 UT 23, 210 P.3d 288, determined that the standard was met in that case,
the court indicated that it was particularly troubled by the fact that the “many
inconsistencies” in the victim’s testimony were accompanied by several “patently false
23
Because we conclude that the evidence was properly excluded under rule 412,
we need not address the trial court’s alternative basis of exclusion under rule 403.
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statements.” See id. ¶ 22. The court suggested that in the absence of the false
statements, the victim’s “denial of any abuse to two investigators, her inconsistent
accounts regarding the extent of the physical abuse she suffered, her age when the
abuse occurred, and what she was wearing at the time of abuse may alone [have been]
insufficient to invoke the inherent improbability exception.” Id. The supreme court’s
analysis in Robbins is consistent with its prior statement that “it is not unusual that a
child’s testimony be somewhat inconsistent, especially in sexual abuse cases,” State v.
Virgin, 2006 UT 29, ¶¶ 37‐38, 137 P.3d 787 (affirming magistrate’s decision not to bind a
defendant over for trial). The likelihood of such inconsistencies is magnified when the
child is also mentally challenged. Thus, the consideration of whether Grandson’s
testimony is inherently improbable must be undertaken with those limitations in mind,
lest we adopt a standard that leaves the most vulnerable victims of sexual abuse
without recourse.
¶79 While Grandson’s testimony at his CJC interview, at the preliminary hearing,
and at the trial differed as to some particulars, he was consistent in testifying that Marks
“sucked on [his] penis.” Furthermore, Grandson’s inconsistent statements were not
“patently false” or “incredibly dubious.” Many of them can be read as providing
different details about the same incident or as variations resulting from the precise
questions employed by the examiner. For example, one of the major inconsistencies
highlighted by Marks was the fact that Grandson testified at the preliminary hearing
that he had an erection and at trial that he ejaculated, although he never mentioned this
in the CJC interview. But, Grandson was never asked directly about these things in the
CJC interview. The detective asked Grandson, “Did anything happen to you while
[Marks] was [sucking on your penis]?” Grandson answered, “No.” Although the
detective testified at trial that his question was intended to determine whether anything
“had happened to [Grandson] physically,” he did not specifically ask about erection or
ejaculation. The possibility that it was the nature of questions that influenced the
details of Grandson’s testimony is bolstered by the special education teacher’s
statement that she sometimes had to rephrase a question in order for Grandson to
understand what was being asked, even when he knew the answer.
¶80 The main thrust of Marks’s argument is that we should substitute our judgment
for that of the jury on the issue of Grandson’s credibility. But “[i]t is the exclusive
function of the jury to weigh the evidence and to determine the credibility of the
witnesses. So long as there is some evidence, including reasonable inferences, from
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which findings of all the requisite elements of the crime can reasonably be made, our
inquiry stops.” State v. Boyd, 2001 UT 30, ¶ 16, 25 P.3d 985 (emphasis and internal
quotation marks omitted). Here, the defense ably called the jury’s attention to the
inconsistencies in Grandson’s reports of the abuse, his confusion over his age at the time
it occurred, and the unique issues raised by his mental disabilities. Notwithstanding
that effort, the jury found that Grandson was believable on the critical issue of whether
Marks had orally sodomized him—a point on which Grandson was consistent. It was
the jury’s prerogative to make that credibility determination. See id.
¶81 Similarly, the evidence was sufficient for the jury to find beyond a reasonable
doubt that Grandson was under fourteen at the time of the abuse. In his CJC interview,
Grandson admitted that he was “not really sure when” the incident occurred. He then
stated that it happened “during the summer” of 2005 when he “was 13”24 but also
reported that it happened “in February.” During that same interview, Grandson
reported that it happened “this summer,” and that he was “still thirteen a little bit” at
the time. However, Marks calls our attention to the fact that the CJC interview was
taped on August 29, 2006. If the abuse had occurred that same summer, Grandson
would have been fourteen years old at the time. Otherwise, Grandson was consistent
during the CJC interview that the abuse took place when he was thirteen years old.
¶82 At the preliminary hearing, Grandson testified that he was “probably about
thirteen” when the abuse occurred and that “it was really hot outside, and people had
their swimming pools out.” He remembered that it happened the summer he had just
finished the seventh grade, which was the summer before the one that had just passed.
The prosecutor concluded, and Grandson agreed, that it was “summertime of 2005ʺ
when Grandson was “thirteen years old.” Grandson remembered that he told his
Grandmother about it “[j]ust in 2006, [the] next year.” On cross‐examination, Grandson
again indicated that it happened “in the summer of ‘05 . . . [w]hen [Grandson was]
thirteen,” and “not the summer of ‘06 . . . [w]hich would be last summer.”
¶83 At trial, Grandson testified that it happened when he was “in the eighth or
seventh grade,” when he was “about 15,” and that he was “[a]t least 15 or 14ʺ when it
happened. Grandson further recalled that “last summer” he was fifteen and the abuse
24
Grandson was born in March 1992.
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had occurred the summer before last summer. Grandson indicated that he waited a
year to report the abuse because Marks had threatened him.
¶84 We agree with the defense that Grandson’s testimony was inconsistent and
confusing on the issue of his age at the time of the abuse. However, Grandson’s
testimony was reasonably consistent at the CJC interview, which took place closest to
the incident with Marks. See State v. Loughton, 747 P.2d 426, 429 (Utah 1987)
(recognizing that videotaped testimony of an alleged child abuse victim, “made nearer
to the time of the incident and removed from the pressure of the courtroom situation,
[can] be the most accurate account[] of the incident available”). And Grandson’s special
education teacher testified that Grandson only “had some understanding” of the
sequence of seasons and months, which would explain his placement of February in the
summertime. Furthermore, Grandson was quite sure that the abuse happened when it
was hot, he was out of school, and people had their pools out.
¶85 More important, however, is the fact that Grandson was consistent in his
testimony at the preliminary hearing, at trial, and in his disclosure to Grandmother, that
the abuse occurred a year before he reported it to anyone. Two adult witnesses,
Grandmother and Uncle, testified that in August 2006 when Grandson was fourteen,
Grandson told them that the abuse occurred “last summer” and “[l]ast year.” They
could be sure of when he made his disclosure because it coincided with a family
vacation and wedding. Therefore, we agree with the trial court that the evidence was
sufficient to allow the jury to consider whether it was convinced beyond a reasonable
doubt that Grandson was under fourteen at the time of the abuse. See State v. Robbins,
709 P.2d 771, 773 (Utah 1985) (rejecting claims that the child complainant’s confusion
regarding the date of the sexual abuse rendered the testimony inherently improbable
and explaining that children can more readily identify a “temporal reference point[]”
than a specific year or age); State v. Hamblin, 2010 UT App 239, ¶ 3 n.3, 239 P.3d 300
(noting that although the child complainant had “initially insisted that she was nine
years old when the sexual abuse commenced and ten years old when it ended,” other
evidence caused the child to “eventually realize[] that she must have been older than
age nine when the assaults occurred”).
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CONCLUSION
¶86 The trial court properly excluded the evidence of other sexual conduct pursuant
to rule 412 of the Utah Rules of Evidence. Grandson’s testimony was not so inherently
improbable as to be insufficient to support the guilty verdict.
¶87
Affirmed.
____________________________________
Carolyn B. McHugh,
Associate Presiding Judge
‐‐‐‐‐
¶88
WE CONCUR:
____________________________________
James Z. Davis,
Presiding Judge
____________________________________
Stephen L. Roth, Judge
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