State of Utah v. Brown

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Duane Arnold Brown,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990874-CA

F I L E D
May 10, 2001 2001 UT App 148 -----

Fifth District, St. George Department
The Honorable James L. Shumate

Attorneys:
Douglas D. Terry, St. George, for Appellant
Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee

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Before Judges Bench, Billings, and Davis.

BENCH, Judge:

The portion of Detective Copeland's testimony that Defendant argues was admitted contrary to Rule 608(a) of the Utah Rules of Evidence does not "improperly vouch[] for the victim's credibility." State v. Stefaniak, 900 P.2d 1094, 1095 (Utah Ct. App. 1995). The Utah Supreme Court has previously held that Rule 608(a) prohibits testimony, by either a lay or expert witness, as to the "truthfulness of a witness on a particular occasion." State v. Rimmasch, 775 P.2d 388, 392 (Utah 1989). Detective Copeland's testimony did not express any opinion as to the victim's credibility in her account of the sexual abuse. Rather, Detective Copeland merely explained the procedure used when interviewing children about possible abuse. Therefore, we find no error committed by the trial court in admitting Detective Copeland's testimony.

Defendant also challenges the admission of Ms. Willden's testimony after the prosecutor asked her if she "kn[e]w of anything that would lead [the victim] to believe she was trying to please you?" Ms. Willden replied, "No. There is absolutely no motive, motives." Taken alone, the prosecutor's question could be viewed as an improper attempt by the State to vouch for the victim's credibility. However, Defendant fails to acknowledge in his argument that this question came on redirect, after defense counsel had asked Ms. Willden on cross examination if "sometimes a child will say something that isn't true, isn't factual because they want to please someone and they are saying what they believe they are expected to say?" Ms. Willden responded, "That's true." After defense counsel opens the door by calling into question a witness's credibility, the State is allowed to elicit responses to bolster the witness's credibility. See Utah R. Evid. 608; United States v. Gauvin, 173 F.3d 798, 803 (10th Cir. 1999) (finding testimony that supervisor had found "no improper motive" in officer's report was appropriate as defense counsel had "previously opened the door to this line of questioning"). Having opened the door by suggesting the victim may have had some motive to lie, Defendant cannot now claim it was error for Ms. Willden to testify that she knew of no motive the victim would have to lie about the events in question.

We have concluded the trial court committed no error in admitting Detective Copeland's and Ms. Willden's testimony. But even if there had been error, Defendant would have to show that it was "plain error," because Defendant did not object to the admission of the evidence at trial. State v. Adams, 2000 UT 42,¶20, 5 P.3d 642. We cannot conclude that any error that might have resulted from the admitted testimony would have been so "'obvious to the trial court'" as to constitute plain error. Id. (citation omitted).

Defendant also challenges the sufficiency of the evidence used to convict him. "A challenge to the sufficiency of the evidence presents the defendant with a heavy burden. He must first marshal all the evidence supporting the jury's verdict and then demonstrate how this evidence, even viewed in the most favorable light, is insufficient to support the verdict." State v. Strain, 885 P.2d 810, 819 (Utah Ct. App. 1994). Defendant has failed to marshal the evidence; therefore, we will not address his challenge to the sufficiency of the evidence. See State v. Shepherd, 1999 UT App 305,¶25, 989 P.2d 503.

Defendant's conviction is affirmed. Defense counsel has also filed with this court a motion to withdraw as counsel for Defendant, which we deferred ruling on until plenary consideration of the appeal. In light of our ruling on the merits of Defendant's appeal, we grant defense counsel's motion to withdraw.
 
 
 

______________________________
Russell W. Bench, Judge

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WE CONCUR:
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 

______________________________
James Z. Davis, Judge