State v. Moore

2012 UT 62, 289 P.3d 487, 718 Utah Adv. Rep. 87, 2012 WL 4466152, 2012 Utah LEXIS 128
CourtUtah Supreme Court
DecidedSeptember 28, 2012
DocketNo. 20100202
StatusPublished
Cited by5 cases

This text of 2012 UT 62 (State v. Moore) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Moore, 2012 UT 62, 289 P.3d 487, 718 Utah Adv. Rep. 87, 2012 WL 4466152, 2012 Utah LEXIS 128 (Utah 2012).

Opinions

NEHRING, Associate Chief Justice:

T1 Arvin Moore was convicted of aggravated sexual abuse of a child, a first-degree felony, and dealing in material harmful to a minor, a second-degree felony. He appealed his convictions to the court of appeals, asserting that he should be granted a new trial because his trial counsel was ineffective. Specifically, Mr. Moore contended that trial counsel did not properly investigate or exploit discrepancies in the victim's statements about whether the abuse occurred in 2002 or 2003. The court of appeals agreed and granted a new trial on both charges.1 The State conceded that Mr. Moore's counsel acted ineffectively in defending the sexual abuse conviction, but petitioned for writ of certiora-ri on the harmful materials conviction. We affirm the court of appeals' conclusion that Mr. Moore is entitled to a new trial on the harmful materials conviction.

BACKGROUND

T 2 The alleged victim, L.B., who was eighteen years old at the time of trial, alleged that Mr. Moore had shown him pornography and sexually assaulted him several years earlier.

T3 In 2001, when LB. was twelve, he began mowing lawns for Mr. Moore. The next two summers, 2002 and 2008, when L.B. was thirteen and fourteen, Mr. Moore invited him to work on his ranch in Summit County along with some other young men. In 2006, L.B. reported to his mother and then his ecclesiastical leader that Mr. Moore had sexually abused him and introduced him to pornography. During his initial interview with police, L.B. said four times that he was fourteen when Mr. Moore assaulted him. In a second, unrecorded, interview, he said that [489]*489the incident occurred when he was thirteen, not fourteen. The police searched Mr. Moore's house and found pornography that matched L.B.'s description.

T4 Based on L.B.'s statement that the incident occurred when he was thirteen, the State charged Mr. Moore with one count of aggravated sexual abuse of a child, a first-degree felony that applies only when the victim is under the age of fourteen,2 rather than forcible sexual abuse, a second-degree felony,3 or sexual abuse of a minor, a class A misdemeanor,4 either of which would apply if the victim were fourteen.5 The State also charged Mr. Moore with one count of dealing in material harmful to a minor,6 which applies when the victim is under the age of eighteen and makes no distinction between the ages of thirteen and fourteen.7 Mr. Moore requested a bill of particulars, in which the State declared that the alleged offenses took place between July 1, 2002 and August 81, 2002.

5 At trial, L.B. testified that, prior to the abuse, Mr. Moore had frequently questioned L.B. about whether he had ever masturbated and encouraged him to do so. L.B. testified that Mr. Moore provided him with handwritten notes containing sexual instruction and information supposedly taken from a pornographic magazine entitled "The Red Book." He testified that one day, he ate lunch in the living room of the ranch house. Mr. Moore gave him a pornographic magazine, and told L.B. that he also had a pornographic video in his bedroom. Mr. Moore led LB. into his bedroom, which was adjacent to the living room. Mr. Moore placed the open pornographic magazine on the bed and set up the video for viewing. Mr. Moore then left the room, and told L.B. that he could view the video and read the magazine while masturbating. L.B. testified that not long after he began watching the video and masturbating, the door to the bedroom "popped open," and Mr. Moore entered the room. After walking over to stand behind the chair in which L.B. was sitting, Mr. Moore asked L.B. if he could touch and rub L.B.'s penis. L.B. allowed Mr. Moore to do so, and Mr. Moore continued touching L.B. until he ejaculated.

T6 During his testimony, L.B. drew a detailed picture of the ranch house. He explained that Mr. Moore's mother was living in the house during the summer, and she died later that summer. He said that she went to the hospital for a few days in July, but after she came home, she was in a hospital bed in the living room from the end of July until she died in August. He stated that she was still alive when the abuse occurred. He further explained that Mr. Moore's sisters were often in the house to take care of their mother. He also stated that he worked for Mr. Moore the following summer, in 2008.

T7 Mr. Moore's defense was that the incident never happened. To substantiate this, he produced evidence akin to an alibi defense, attempting to prove that the incident could not have happened the way L.B. described. He called his three sisters, who testified that they were in the home almost the entire summer of 2002, tending to their dying mother. They testified that their mother was in a care facility for a few days in June, and another few days in July, but spent the rest of the summer at the ranch, until she passed away in early August. Their mother spent much of that time in a hospital bed in the living room. They testified that they occupied the bedroom adjacent to the living room, where L.B. claimed the abuse had occurred, and that this bedroom did not have a television in it. They testified that Mr. Moore's bedroom, which had a portable television and VCR in it, was in the basement of the ranch house. Mr. Moore's sisters also testified that the boys who were working on the ranch rarely, if ever, entered the ranch house, but that there was otherwise a steady stream of visitors coming and going. One of Mr. Moore's sisters testified that, for several months after their mother [490]*490died, Mr. Moore left the furniture as it had been when their mother had been alive, but he moved his things upstairs in the spring of 20083.

8 The jury convicted Mr. Moore on both counts. Mr. Moore moved for a new trial, arguing, among other things, that his trial counsel had rendered ineffective assistance by not pressing the discrepancy in L.B.'s testimony about whether the incident occurred in 2002 or 2003. His argument was focused on the sexual abuse charge, which was necessarily linked in time to the harmful materials charge. In its ruling on Mr. Moore's motion for a new trial, the trial court determined that defense counsel's performance was deficient but not prejudicial. The trial court said:

Defendant argued, supported by some evidence but rejected by the jury, that the conduct did not happen at all. In the face of that challenge, the jury believed [L.B.] that the touching did occur. This court believes that given the totality of the evidence, and specifically the nature of the impeachment and impeaching evidence by way of prior inconsistent statements of a youthful witness, the jury would have believed [L.B.] about WHEN, what Summer, the touching of genitals happened as well even if [L.B.] had been vigorously challenged on cross examination and even if the jury had been given an alternative offense on which to convict defendant.... Counsel's performance was deficient but had it not been the court concludes that defendant has not proven there is a reasonable probability of a different result.

T9 After his motion for a new trial was denied, Mr. Moore appealed to the court of appeals. He raised five claims, including that defense counsel rendered ineffective assistance of counsel by failing to pursue L.B.'s inconsistent statements about whether he was thirteen or fourteen when the abuse occurred. Trial counsel did not consult with Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
2012 UT 62, 289 P.3d 487, 718 Utah Adv. Rep. 87, 2012 WL 4466152, 2012 Utah LEXIS 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moore-utah-2012.