State v. Wells

2014 UT App 13, 318 P.3d 1251, 752 Utah Adv. Rep. 56, 2014 WL 172944, 2014 Utah App. LEXIS 13
CourtCourt of Appeals of Utah
DecidedJanuary 16, 2014
DocketNo. 20120540-CA
StatusPublished
Cited by6 cases

This text of 2014 UT App 13 (State v. Wells) 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. Wells, 2014 UT App 13, 318 P.3d 1251, 752 Utah Adv. Rep. 56, 2014 WL 172944, 2014 Utah App. LEXIS 13 (Utah Ct. App. 2014).

Opinion

Memorandum Decision

GREENWOOD, Senior Judge:

{1 Defendant Ronnie R. Wells was charged with eight counts of aggravated sexual abuse of a child and four counts of lewdness involving a child, all arising from alleged incidents that occurred during the summer of 2011. The eight-year-old victim (Child), her older brother, and their little sister stayed with Wells and his wife (Grandmother) for a month that summer.2 During that stay, Child asked to talk with Grandmother in private. Child told Grandmother that she had been playing a game with Wells that involved him holding her upside down in the air and that while they were playing, she thought she saw Wells's penis and it made her uncomfortable. Both Grandmother and Child briefly spoke to Wells about the incident, and Wells apologized if anything had happened that had made Child uncomfortable.

2 Sometime later during her stay, Child again asked to speak with Grandmother. This time she reported that while she had been playing truth or dare with Wells, he tickled her belly and legs, and also tickled her between her legs. Grandmother talked to Wells about this incident and also contacted the police.

13 Child subsequently claimed other instances of Wells exposing himself and of inappropriate touching. She testified at trial that on several occasions Wells had rubbed her vagina while watching movies, sometimes under her underwear and sometimes over it. She also testified that Wells had had her rub his penis multiple times and that he touched her inside her vagina several times. Additionally, she alleged that when Wells was carrying her to her bed, after he would "go past the wall [where the bathroom is]," he would then start rubbing her vagina. Child further alleged that the instances where she saw Wells expose himself while she was hanging in the air happened fifteen to twenty times that summer.

T4 The jury found Child's testimony convincing and ultimately convicted Wells on each of the twelve counts. After sentencing, Wells timely appealed. '

15 Wells challenges the sufficiency of the evidence to support his convictions. "As a general rule, claims not raised before the trial court may not be raised on appeal.... [This] preservation rule applies to every claim, including constitutional questions, unless a defendant can demonstrate that 'exceptional cirenmstances' exist or 'plain error occurred." State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (specifically applying the preservation rule to a claim of insufficient evidence). When arguing either of these exceptions, appellants are required "to articulate the justification for review in the party's opening brief" or else their claims are procedurally barred. State v. Weaver, 2005 UT 49, ¶ 19, 122 P.3d 566. Wells did not raise a challenge to the sufficiency of the evidence before the trial court, nor did he argue any exception to the preservation rule until his reply brief on appeal. Thus, Wells's sufficiency claim is procedurally barred.

T6 Wells also argues that his trial counsel was ineffective for failing to file a [1255]*1255motion to arrest judgment before sentenc-ings 3[A] defendant raising an ineffective ness claim must show first, that his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment and, second, that counsel's performance prejudiced the defendant." State v. Kelley, 2000 UT 41, 25, 1 P.3d 546 (citation and internal quotation marks omitted). "To establish prejudice, [a] defendant must show a reasonable probability ... that except for ineffective counsel, the result would have been different." - Id. (omission in original) (citation and internal quotation marks omitted). - Consequently, "[flailure to raise futile objections does not constitute ineffective assistance of counsel." Id. 1 26.

17 To determine whether filing a motion to arrest judgment would have been futile, we evaluate whether the evidence presented at trial was so questionable that such a motion would have caused the trial court to reverse the jury verdiet. "[The court may only reverse a jury verdict when 'the evidence is sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt that the defendant committed the erime for which he or she was convicted." State v. Robbins, 2009 UT 28, 114, 210 P.3d 288 (quoting State v. Bluff, 2002 UT 66, 1 63, 52 P.3d 1210). As we conduct our evaluation, we " 'review the evidence and all reasonable inferences that may fairly be drawn therefrom in the light most favorable to the jury verdict.'" Id. (quoting State v. Colwell, 2000 UT 8, 1 11, 994 P.2d 177).

18 Wells argues that due to Child's inherently improbable testimony there was insufficient evidence to support the verdict. "Though 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. 116. However, such circumstances are quite limited, in that the trial court may "reevaluate the jury's eredi-bility determinations only in those instances where (1) there are material inconsistencies in the testimony and (2) there is no other cireumstantial or direct evidence of the defendant's guilt." Id. 119. We address each of these requirements.

T9 First, it does not appear that there are material inconsistencies in Child's testimony. Wells argues that Child's trial testimony and her original reports to Grandmother were inconsistent, Although Child's trial testimony alleged additional instances of abuse as compared to her initial reports to Grandmother, it does not appear that the separate disclosures were actually inconsistent. The only specific inconsistency between them that Wells asserts is that Grandmother questioned Child as to whether Wells touched her under her clothing and she responded that he had not, yet at trial Child testified of instances of touching under her clothing. However, reading the statement in context, it is clear that Child's response to Grandmother was limited to the specific truth-or-dare incident and was not a broad assertion that Wells had never touched her under her clothing. And the simple fact that Child alleged additional abuse later does not make Child's testimony inherently improbable. Indeed, at Wells's sentencing hearing, [1256]*1256the trial court noted a possible reasoning behind the jury crediting the later testimony:

The initial disclosure was basically what Mr. Wells acknowledged on the stand, and then [Child] made much larger disclosures when she was interviewed. That doesn't necessarily mean she wasn't telling the truth,. It might have been she was floating the idea first to see whether she'd get some support, and once she did she decided she'd tell the whole story. ! 4!

Thus, notwithstanding the differences between the reports, Child's multiple disclosures were not inconsistent, but merely cumulative, and simply added more details in the later statements.

T10 Wells also argues that there were inconsistencies within Child's trial testimony as to the number of times abuse occurred and that it was improbable that he could have abused Child so frequently without Grandmother witnessing it. Child was indeed sometimes inconsistent when identifying the exact number of times certain acts happened, describing fewer incidents when first examined and then describing slightly more incidents on eross-examination.

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Cite This Page — Counsel Stack

Bluebook (online)
2014 UT App 13, 318 P.3d 1251, 752 Utah Adv. Rep. 56, 2014 WL 172944, 2014 Utah App. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wells-utahctapp-2014.