State v. Hanigan

2014 UT App 165, 331 P.3d 1140, 765 Utah Adv. Rep. 21, 2014 WL 3511935, 2014 Utah App. LEXIS 171
CourtCourt of Appeals of Utah
DecidedJuly 17, 2014
DocketNo. 20120718-CA
StatusPublished
Cited by1 cases

This text of 2014 UT App 165 (State v. Hanigan) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hanigan, 2014 UT App 165, 331 P.3d 1140, 765 Utah Adv. Rep. 21, 2014 WL 3511935, 2014 Utah App. LEXIS 171 (Utah Ct. App. 2014).

Opinion

Memorandum Decision

ORME, Judge:

€ 1 Defendant Asgia Ji Hanigan was con-vieted on two counts of sodomy of a child and one count of aggravated sexual abuse of a child. He now appeals those convictions, claiming that he received ineffective assistance of counsel. We affirm.

T2 To prevail on an ineffective assistance of counsel claim, a defendant must first "show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When «: evaluating trial counsel's conduct, we "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the cireumstances, the challenged action 'might be considered sound trial strategy" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955). "Second, the defendant must show that the deficient performance prejudiced the defense." Id. at 687.

3 Defendant first contends that his trial counsel was ineffective for failing to object to the admission of a videotaped interview of the victim. At trial, the State sought to introduce into evidence a videotaped interview of the victim and to show the interview in lieu of conducting direct examination of the victim. Defendant argues that his trial counsel should have objected to this evidence because the recorded testimony was unreliable and was not corroborated by other evidence.

[1142]*1142$4 The Utah Rules of Criminal Procedure provide for the admission of previously recorded testimony of child victims of sexual or physical abuse when certain conditions are met. Utah R.Crim. P. 15.5(a). In this case, the trial court recognized that the State was attempting to bring in this evidence under rule 15.5, carefully considered whether the statutory conditions were met, and made detailed findings about the fulfillment of each condition. And the trial court explicitly found that there was "other corroborative evidence of abuse," that the recording was "sufficiently reliable and trustworthy," and that the recording should be admitted in the interest of justice. When a trial court "considers the factors specified in [rule 15.5] and determines that the recorded statement is accurate, reliable and trustworthy, and that its admission is in the interest of justice," the recording is admissible. See State v. Nguyen, 2012 UT 80, ¶ 11, 293 P.3d 236 (holding also that the rule 15.5 requirement of "good cause" is met when the court considers all of the statutory factors). Therefore, because the recorded testimony of the victim was properly admitted under rule 15.5 of the Utah Rules of Criminal Procedure, an objéction to its admission would have been futile. And "[flailure to raise futile objections does not constitute ineffective assistance of counsel.1 State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546.

1 5 Defendant next argues that he received ineffective assistance of counsel when his trial counsel failed to object to the admission of certain exhibits, including magazines showing adults dressed in diapers engaging in masochistic sex, letters allegedly written to Defendant discussing sex and diaper fetishes, photographs of Defendant in a diaper and sucking on a baby bottle, and photographs of adults and minors dressed in diaper-fetish attire, While trial counsel's decision not to object to the admission of these exhibits might seem curious in retrospect, we can conceive of a tactical basis for allowing at least some of the exhibits to be admitted. See State v. Clark, 2004 UT 25, ¶¶ 6-7, 89 P.3d 162 (noting that the court gives wide latitude to trial counsel in making decisions and will categorize them as deficient only if there is no conceivable tactical basis supporting them). Specifically, trial counsel may have viewed the photographs of Defendant wearing diapers and drinking from a baby bottle as an alternative way to present information about Defendant's claimed medical conditions. Indeed, prior to the admission of the exhibits, Defendant had testified that, as a result of a gunshot wound, he was incontinent and was required to "constantly" wear diapers until he began using a catheter in 1992, and he testified that drinking out of a baby bottle was "the only way [he] could get liquid sometimes." Of course, pursuing this tactic would have created the risk that many of the other exhibits would have come in at the State's behest to undercut Defendant's claim that he wore diapers and drank from a baby bottle only as a matter of medical necessity.

16 But even if Defendant's counsel had vigorously objected to any of the exhibits being admitted, many of them would have been admitted notwithstanding the objection. See generally State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (holding that "[fJailure to raise futile objections does not constitute ineffective assistance of counsel"). Much of the evidence admitted during the State's cross-examination of Defendant undercut his testimony that he had a medical disability that should have been visible to the victim and that was sexually disabling. Therefore, the trial court would likely have admitted the exhibits at the State's behest-even had trial counsel objected-as tending to show that a medical condition was not the reason Defendant often wore adult diapers.

[1143]*114317 Concededly, many of the exhibits introduced by the State may have been excluded in the face of active opposition by trial counsel either because they did not tend to make Defendant's medical condition more or less probable or because they were more unfairly prejudicial than they were probative. See Utah R. Evid. 401, 408. But even assuming that trial counsel was deficient for failing to object to the admission of the exhibits or for opening the door to their admission, and even assuming that some of the exhibits introduced by the State would have been excluded had trial counsel objected, we conclude that any error on counsel's part "had no effect on the judgment." See Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also id. at 670, 104 S.Ct. 2052 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed."). This case was tried to the court, not a jury. "Although the nature of the proceedings should not affect the admissibility of evidence, we recognize a presumption that the court considers only admissible evidence and disregards any inadmissible evidence." State v. Adams, 2011 UT App 163, ¶ 12, 257 P.3d 470. "As a corollary to this general princip{le], judges in bench trials are presumed to be less likely than juries to be prejudiced by" problematic evidence. Id. See State v. Park, 17 Utah 2d 90, 404 P.2d 677, 679 (1965) ("[The rulings on evidence are looked upon with a greater degree of indulgence when the trial is to the court than when it is to the jury.").

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2015 UT App 152 (Court of Appeals of Utah, 2015)

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Bluebook (online)
2014 UT App 165, 331 P.3d 1140, 765 Utah Adv. Rep. 21, 2014 WL 3511935, 2014 Utah App. LEXIS 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hanigan-utahctapp-2014.