Ashby v. State

535 P.3d 828

Caroline Menzies ASHBY, Appellant,

v.STATE of Utah, Appellee.

No. 20210330

Supreme Court of Utah.

Heard January 11, 2023

Filed September 14, 2023

Freyja Johnson, Emily Adams, Bountiful, Jensie L. Anderson, Salt Lake City, for appellant

Sean D. Reyes, Att'y Gen., Mark C. Field, Asst. Solic. Gen., Salt Lake City, for appellee

Justice Hagen authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Pearce, Justice Petersen, and Justice Pohlman joined.

Justice Hagen, opinion of the Court:

INTRODUCTION

¶1 In 2012, a jury convicted Caroline Ashby of two counts of aggravated sexual abuse of a child for allegedly abusing her son, Kevin,¹ while they were bathing together. Ashby's conviction rested on allegations Kevin made first during a Children's Justice Center (CJC) interview when he was eight years old, and later at trial when he was ten.

¶2 About a decade later, having had no contact with his mother during that period, Kevin recanted his statements. Kevin divulged that he had lied to the CJC interviewer and at trial, and that Ashby had never sexually abused him. Based on Kevin's recantation, Ashby filed a petition for a post-conviction determination of factual innocence pursuant to Utah's Post-Conviction Remedies Act (PCRA).

¶3 After holding an evidentiary hearing, the district court denied the petition, ruling that Ashby had failed to prove her factual innocence by clear and convincing evidence. The court indicated that it would be difficult to meet the clear and convincing burden of proof with a recantation, even if that recantation was reconcilable with the undisputed surrounding facts. But the court found Kevin's recantation could not be reconciled with the "undisputed facts."

¶4 On appeal, Ashby argues that the district court erred in its application of the clear and convincing evidence standard. To the extent the court held Ashby to a higher standard because she sought to prove her factual innocence with a recantation, it incorrectly inflated the burden of proof. Where a defendant is convicted based on uncorroborated witness testimony and that witness later recants under oath, that recantation, if credible, is sufficient to prove factual innocence by clear and convincing evidence. Although the district court must carefully assess the circumstances surrounding the recantation and the witness's credibility to determine if the recantation is believable, the district court made no express findings that Kevin's testimony at the evidentiary hearing was false.

¶5 The State argues that, by finding Kevin's recantation to be "irreconcilable" with the "surrounding undisputed facts," the district court implicitly found that Kevin was not credible. But even assuming the district court envisioned that finding as an implicit credibility determination, the finding that Kevin's testimony conflicted with the "undisputed facts" is not supported by the record. In any event, proof by clear and convincing evidence does not require the petitioner to eliminate or reconcile all conflicts in the evidence.

While such discrepancies may bear on the credibility of the recanting witness, the existence of conflicting evidence is not determinative.

¶6 Both parties agree that Kevin's recantation, if believable, is sufficient to prove Ashby's factual innocence by clear and convincing evidence. We therefore remand to the district court to determine whether the recantation is credible in accordance with the legal standards set forth in this opinion.

BACKGROUND

¶7 After a jury trial in 2012, Ashby was convicted of two counts of aggravated sexual abuse of her son, Kevin. At trial, no physical evidence of abuse or eyewitness testimony was presented. The only evidence of abuse was Kevin's testimony that Ashby had taken indecent liberties with him while bathing together.

A. Events Leading up to the CJC Interview

¶8 Kevin was born to Caroline Ashby and David Ashby (Father) in 2002. Eventually the couple divorced, and Father married Stepmother. After the divorce, Ashby and Father engaged in a high-conflict relationship regarding custody and visitation, which Kevin often observed.

¶9 When Kevin was between six and eight years old, he began exhibiting behavioral issues, including throwing tantrums, being argumentative, lying, saying "outlandish" things, and acting out against his younger brother. Kevin also began acting out sexually toward other children.

¶10 As a result of his behavioral issues, Kevin began seeing a therapist. In therapy, Kevin candidly disclosed his sexual behavior with other children but never disclosed any abuse or sexual behavior with his mother. Kevin told his therapist that he bathed with Ashby and it made him uncomfortable, but he specified that Ashby wore clothing when she bathed with him. At some point, Father and Stepmother learned that Kevin was bathing with Ashby, which Father and Stepmother thought was inappropriate. Eventually, either Father and Stepmother or Kevin himself told the therapist that Ashby and Kevin bathed together naked.

¶11 Kevin's ongoing sexual behaviors prompted Stepmother to call the Division of Child and Family Services, which resulted in an interview at the CJC.

B. The CJC Interview

¶12 About two years before Ashby's trial, Father and Stepmother took Kevin to the CJC to be interviewed. Kevin knew Father and Stepmother were concerned about his sexual behaviors. Stepmother explained to the CJC interviewer that she and Father thought Ashby's bathing with Kevin was inappropriate and that it was related to why he was having behavior issues. Stepmother told the interviewer that she felt Kevin, who had just turned eight at the time, was too old to see his mother naked, and that she was concerned it was "becoming a problem with him noticing different [body] parts."

¶13 The interviewer began by asking Kevin about school, but then turned to what he knew about "privates" and how he knew about them. For the remainder of the interview, the interviewer primarily questioned Kevin about bathing with Ashby. Kevin reported that he and Ashby would take baths together and that he "used to do it naked." When the interviewer asked Kevin to tell her more, Kevin sighed and said, "It's embarrassing to me." Kevin sighed again and explained that it was embarrassing because "it's just really bad and I didn't know that then."

¶14 When asked what he and Ashby did in the bathtub, Kevin reported that they played with toys and washed themselves. Kevin explained that he would wash Ashby, and she would "wash everything except [his] private parts," which he washed himself. Later, he said that Ashby did wash his "private parts" but that he "didn't wash hers." The interviewer then showed Kevin some drawings of children with no clothes on and asked Kevin to identify by name various body parts. Kevin then reported that Ashby had him wash her "private parts," including her "boob[s]" and "nipple[s]," "some of the butt cheek," "inside [the] bum," and "a little inside" her vagina. Kevin first claimed that he had washed inside her vagina with his "whole hand," but adjusted his answer to indicate that it was just one finger.

¶15 Kevin was never asked during the interview whether he engaged in sexual behavior with other children, nor did he disclose such behavior to the interviewer.

¶16 Shortly after the CJC interview, Kevin began seeing a second therapist. With this therapist, Kevin denied that he had engaged in any sexual behavior with other children, but he claimed that his mother had sexually abused him over 100 different times.

C. Ashby's Trial

¶17 Among other witnesses, Kevin, Father, Stepmother, and Kevin's therapists testified at Ashby's trial, and the jury was shown a video of Kevin's CJC interview. No physical evidence of abuse was presented, and Father and Stepmother testified that, while they disapproved of Ashby bathing with Kevin, they never suspected Ashby of abuse. The only evidence of abuse was Kevin's testimony.

¶18 Kevin was ten years old when he testified, and his testimony was given outside the presence of the jury and Ashby. When asked about "private parts," Kevin testified that he had seen Ashby's private parts, but no one else's, and that Ashby's private parts had no hair. He described a vagina as "[t]wo ovals stick together" with a hole, and "boobs" as "two bouncy balls" with "[a] nipple."

¶19 Kevin testified that he would usually see Ashby's private parts in the bathtub, but that they would also sometimes wear swimsuits. He testified that while in the bathtub, he would wash the "outside" of Ashby's breasts, buttocks, and vagina. He denied washing inside her vagina or her anus, although he admitted that he said the opposite in his CJC interview.

¶20 The jury convicted Ashby on both counts of aggravated sexual abuse of a child, and she was sentenced to prison.

D. Kevin's Recantation

¶21 Sometime after Ashby's trial, both of Kevin's biological parents relinquished their parental rights, and Kevin was eventually adopted by his paternal aunt and uncle. When Kevin was seventeen years old, he disclosed to his adoptive mother that he had lied about Ashby's conduct during the CJC interview and at trial. At that point, Kevin had not had any contact with Ashby since he was eight years old.

¶22 Kevin's adoptive mother took him to see a psychologist, Dr. Goldsmith, to "determine whether [Kevin] is changing his story on his own free will or, whether he has been pressured to change his narrative." Dr. Goldsmith reviewed transcripts of the jury trial and sentencing hearing and interviewed Kevin twice.

¶23 Kevin told Dr. Goldsmith that, at the time he accused Ashby, a neighbor boy had been sexually abusing Kevin since he was about six years old. Kevin explained that he began acting out with other children because of the sexual behaviors he learned from the neighbor boy. Kevin recalled going to the CJC as a result of his sexual behaviors and said he "didn't want [his] friend to get in trouble, so [he] said it was [Ashby]."...