State v. Thomas

1999 UT 2, 974 P.2d 269, 361 Utah Adv. Rep. 3, 1999 Utah LEXIS 2, 1999 WL 13357
CourtUtah Supreme Court
DecidedJanuary 12, 1999
Docket970068
StatusPublished
Cited by37 cases

This text of 1999 UT 2 (State v. Thomas) 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. Thomas, 1999 UT 2, 974 P.2d 269, 361 Utah Adv. Rep. 3, 1999 Utah LEXIS 2, 1999 WL 13357 (Utah 1999).

Opinions

HOWE, Chief Justice:

¶ 1 Defendant William M. Thomas appeals from convictions for rape of a child, a first degree felony (Utah Code Ann. § 76-5-402.1) (“Count I”) and aggravated sexual abuse of a child, a first degree felony (Utah Code Ann. § 76-5-404.1) (“Count II”). The three assignments of error he makes are (1) the trial court abused its discretion by finding a child victim “unavailable” to testify as a witness and admitting into evidence a videotaped interview with the child victim; (2) the trial court erred in permitting the State to cross-examine Thomas concerning the contents of a letter allegedly written by him, when a copy had not been furnished to his trial counsel as required during discovery; and (3) the trial court erred in denying Thomas’s motion for directed verdict where the State’s information as to Count II misstated the law and the enhancement elements contained in the information were not subsequently proven by the State.

¶2 In May 1996, while Thomas was incarcerated in the Salt Lake County Jail on unrelated charges, he wrote a letter to his mother (the “confession letter”) in which he confessed to sexually abusing several young girls, including his four-and five-year-old cousins (hereafter “C.M.” and “S.M.” respectively). In this letter, Thomas admitted to taking “advantage” of his cousins in early July 1995, while visiting Valene M. (Thomas’s aunt and the girls’ grandmother) in Hurricane, Utah, with his mother. Thomas recounted several instances in which he would “play with” his cousins and that he “raped the youngest daughter three times in one night.” His mother turned the letter over to the police. Several days later in a telephone conversation with his mother in which she told him that the letter had been turned over to the police, Thomas admitted the events described in the letter, going into greater detail about both the circumstances and the specific acts involved.

¶ 3 His mother then called Valene M. to tell her that Thomas had admitted to sexually abusing the girls. S.M. confirmed the abuse, telling her grandmother, her mother, and police that Thomas had sexually abused her. At first, C.M. would not confirm the alleged abuse. However, in a second interview a week later, C.M. responded to questions about the abuse by pointing to a diagram of a human body, indicating where Thomas had touched her, and with what part of his body he had touched her.1 A police officer and a social worker with the Division of Family Services conducted this second interview before a hidden video camera in the Washington County Sheriffs Department.

¶ 4 At trial, the children’s mother, Thomas’s mother, and Valene M. all testified that Thomas had been in Valene M.’s home with his mother on the dates in question and that both C.M. and S.M. had stayed at Valene M.’s house during that time as well. Thomas’s mother confirmed that Thomas could have had access to the children during this period. Furthermore, the children’s mother testified that soon after the time the incidents allegedly occurred, a physician treated C.M. for an unexplained redness and soreness to her vaginal area.

¶ 5 S.M., a seven-year-old at the time of the trial, testified that Thomas had touched [271]*271her vaginal area one night when both she and Thomas were staying at her grandmother’s house. Although she could not pinpoint the exact date, she did remember that her younger sister, C.M., was also present when the touching occurred. C.M., six years old at the time of the trial, would not respond to basic questioning by the trial court. The court, following an extended attempt to evoke answers to basic questions, found C.M. unable to do much more than acknowledge leading questions with largely nonverbal responses. Concerned that her nonverbal responses would not be reflected in the record, as well as potential strain to C.M., the court ruled over Thomas’s objection that C.M. was “unavailable” for purposes of direct testimony. As a result, the court admitted the videotape of the second interview into evidence under rule 15.5(l)(h) of the Utah Rules of Criminal Procedure, which requires that for recorded testimonies to be admitted, the child is either “available to testify and to be cross-examined at trial” or that “the court determines that the child is unavailable as a witness.” The jury then viewed the videotape in conjunction with the police officer’s testimony. The court offered Thomas the opportunity to cross-examine C.M., but he did not avail himself of that opportunity.

¶ 6 The State also presented an edited photocopy of the confession letter to the jury.2 On direct examination, Thomas denied writing the confession letter and implied that his mother’s identification of his handwriting in the letter was incorrect. He further implied that his mother had something against him, saying that “[s]he-would like to see [Thomas] behind bars.”

¶ 7 On cross-examination, Thomas again denied having written the confession letter. The prosecution then offered for impeachment purposes a second letter [the “September letter”], purportedly written by Thomas to his mother, which indicated that the “confession letter was a lie and that he had written it only to see if [his mother] would give it to the police.” Thomas objected to the use of the September letter, asserting that the State had not disclosed it pursuant to a discovery request, thereby surprising the defense with the letter’s existence. The State maintained that it had given Thomas’s prior counsel a copy of the September letter, although there was no record of the letter in the defense file, and asserted that the letter was not part of the State’s case-in-chief, but used merely for rebuttal purposes.

¶8 The trial court overruled Thomas’s objection and allowed the State to use portions of the September letter to impeach him. Thomas denied ever having seen the September letter, let alone having written it. Thomas explained he had discussed his extended family with fellow inmates at great length. He suggested that the confession letter was possibly written by these inmates, who hated him, and who probably used details about his family which were disclosed during these talks to lend credence to the alleged confession.

¶ 9 At the conclusion of the State’s case, the court denied Thomas’s motion for a directed verdict. The jury returned verdicts of guilty on both counts, and he was sentenced to consecutive terms of ten years to life and five years to life, respectively. He now appeals from these convictions.

I. UNAVAILABILITY OF WITNESS AND THE ADMISSIBILITY OF VIDEOTAPED TESTIMONY

¶ 10 Before addressing the major issues on appeal, we note that in his brief to this court Thomas contends that the trial court violated his right to confront and cross-examine witnesses under article I, section 12 of the Utah Constitution by admitting a videotape of C.M.’s out-of-court interview into evidence. His constitutional argument contains only one citation to supporting authority, several assertions, and little analysis.

¶ 11 “ ‘[A] reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research.’ ” State v. Bishop, 753 P.2d 439

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Bluebook (online)
1999 UT 2, 974 P.2d 269, 361 Utah Adv. Rep. 3, 1999 Utah LEXIS 2, 1999 WL 13357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thomas-utah-1999.