State v. Chadwick

554 P.3d 1098

2024 UT 34

STATE of Utah, Appellee,

v.David CHADWICK, Appellant.

No. 20190818

Supreme Court of Utah.

Heard March 4, 2024

Filed August 15, 2024

Fourth District, Utah County, The Honorable James Taylor, No. 171400984

Attorneys ^*:

D. Reyes, Att’y Gen., William M. Hains, Asst. Solic. Gen., Salt Lake City, for appellee

Douglas J. Thompson, Orem, for appellants

Chief Justice Durrant authored the opinion of the Court, in which Associate Chief Justice Pearce, Justice Petersen, Judge Hall and Judge Parker joined.

Chief Justice Durrant, opinion of the Court:

INTRODUCTION

¶1 David Chadwick challenges the jury’s verdict in his case because he believes it violated the Unanimous Verdict Clause of the Utah Constitution. That clause provides that "[i]n criminal cases the verdict shall be unanimous."¹

¶2 Despite its brevity, the Unanimous Verdict Clause has historically proven difficult to navigate. We have not yet decided a case that has required us to articulate a specific standard identifying when the clause has been violated. We do so in this opinion and hold that the verdict in Chadwick’s case violated the Unanimous Verdict Clause.

¶3 Because we vacate Chadwick’s conviction on this unanimity ground, we need not decide his other claim regarding the victim’s mental health records.

BACKGROUND

¶4 Two issues are before us in this appeal: (1) whether the jury’s verdict was unanimous, and (2) whether the district court erred in refusing to re-examine the victim’s mental health records during trial. These issues rest on different but overlapping facts. For clarity, we recount the facts relevant to each issue separately.

Unanimous Verdict Clause

¶5 In 2016, F.L. accused David Chadwick of repeatedly sexually abusing her when she was between the ages of nine and eleven. F.L. met Chadwick in 1999 when she was nine years old and lived near him in Eagle Mountain. A short time later, F.L., her mother, and her brother moved in with Chadwick, and the family lived with him as their landlord until she was fourteen years old. Based on F.L.’s allegations, Chadwick was charged with four counts of sexual abuse of a child. In the information, Count One was alleged to have occurred "on or about May 1, 1999," and Counts Two through Four were alleged to have occurred "on or about January 1, 2000."

¶6 At trial F.L. testified that, before her family moved in with Chadwick, he had lived alone. During that time, F.L. stated that she would "[p]retty regularly" play with her friends in Chadwick’s basement. When she was in his basement, she would often sit on his lap while he was playing video games or while they were watching a movie. Chadwick acknowledged that F.L. played in his basement but testified that she rarely sat on his lap.

¶7 F.L. testified to two incidents. She stated that the first occurred before she moved in with Chadwick when her mother asked Chadwick to babysit F.L. During that time, Chadwick and F.L. were alone in his basement, and she was sitting on his lap when she felt something hard on her buttocks. She stated that she started to move off his lap, but Chadwick told her, "No, it’s okay, you can stay." A short time later, Chadwick asked F.L. if she wanted to play a game. In this "game," which the parties refer to as the "catch-it game," Chadwick would move his penis under his pants and F.L. would try to "catch it." This went on for a few minutes until someone knocked on the door. Chadwick then jumped up and asked F.L. to hide. After answering the door, Chadwick told F.L. not to tell anyone about the game because "they wouldn’t understand." In his testimony, Chadwick adamantly denied that the "catch-it game" ever occurred.

¶8 F.L. testified that the second incident occurred after she and her family had moved in with Chadwick. She stated that during that incident, she was sitting on Chadwick’s lap in underwear, an oversized t-shirt, and with no pants on, watching a movie. She felt Chadwick take his erect penis out of his pants and rub it "against [her] underwear," on her buttocks and vagina and against her leg. Chadwick stopped when F.L.’s mother came into the room. F.L. thinks that, because of her large shirt, her mother did not see Chadwick’s penis. F.L. got up and left soon after that incident.

¶9 In his testimony, Chadwick admitted to getting an erection when F.L. sat on his lap but claimed that it "was just a physical response to the contact" and that he "felt no sexual stimulus] about it." He also testified that he would move F.L.’s hand if it touched his penis and that he would move her to the side if he got an erection. He admitted that he did sometimes ignore the erection and did not move her, but he claimed she would usually move her hand away from touching it shortly after.

¶10 In addition to these two incidents, F.L. also testified that Chadwick tickled her on various occasions. When Chadwick did so, he would pin F.L. down, straddle her, and tickle her. Sometimes in the process, his hand would "slip" underneath her shirt, and he would touch her breasts and ribcage. He would also "grind his hips" while he tickled her. These tickling episodes stopped when she was eleven, which F.L. attributes to her starting to get angry and telling him to stop. Chadwick admitted to tickling F.L. in his testimony but denied ever touching her breasts. He also denied ever having any sexual contact with F.L.

¶11 Finally, F.L. testified that she told various therapists about these incidents. She explained that she would tell them some parts of the incidents but that she "did not talk about it a lot of the time." She also testified that she told therapists that she could not remember details of the incidents because she did not want to talk about them. The State asked F.L. what the purpose was for going to therapy. F.L. responded that she went to therapy, in part, to process trauma. Defense counsel then asked whether this trauma had come from any other sources. F.L. identified several other sources, including a car accident and witnessing a cow get shot for butchering.

¶12 After both sides rested, each party presented its closing argument. During the State’s closing argument, it elected to connect the four counts of sexual abuse to specific conduct: Count One to the "catch-it game"; Count Two to Chadwick rubbing his bare penis on F.L.; and Counts Three and Four to Chadwick tickling F.L’s breasts.

¶13 During the defense’s closing argument, counsel addressed the jury’s constitutional duty to return a unanimous verdict. He explained that "[t]here has to be separate conduct on each charge that has to be decided unanimously" and that he "appreciate[d] the State for going through and saying what they’re alleging happened for each of the[ ] counts." Defense counsel then provided an example of unanimity:

Suppose you get into the jury room and half of you say we believe that the State has proved incident A but not incident B. The other half of you say well, we believe the State has proved incident B but not incident A. What you don’t have is a unanimous verdict on one count for a conviction and then not guilty on the other. What you have in that situation is not a unanimous verdict on either count.

¶14 The judge instructed the jury that "[b]ecause this is a criminal case[ ] you must all agree to find a verdict." And that "[f]or each count, in order for you [to] find Mr. Chadwick guilty of the offense of sexual abuse of a child you must find beyond a reasonable doubt that by separate and distinct conduct" he engaged in the prohibited act. When listing the charged counts for the jury, the instructions no longer distinguished the counts by date. Instead, all counts were listed as having occurred between May 1999 and January 2000. The court then excused the jury for deliberation.

¶15 Attempting to apply these instructions, the jury asked two questions during its deliberation. First, the jury asked if it "could have a verdict form that specifically identified, in some way, a particular course of conduct to connect to each count." The court’s proposed response told the jury that it need only determine how many incidents the State had proven and that the "order of the counts is of no particular consequence." Defense counsel objected to this response and requested that the court "identify for the jury the particular incident for each count." Counsel reasoned that "failure to do so was an invitation for [the jury] to reach a non-unanimous verdict on each incident." The court overruled defense counsel’s objection and gave the jury the following answer:

You should consider the evidence and argument of counsel to determine if the State has or has not proven beyond a reasonable doubt the occurrence of one, two, three, or four behaviors that violate the law as described in the evidence. The order of the counts is of no particular consequence.

¶16 After further deliberations, the jury asked the court to confirm the State’s election. It asked whether each count represented the respective incident the State had identified during its closing argument. The court repeated its answer to the first question, then responded as follows:

Counsel may have suggested specific behaviors to correspond to specific counts during closing argument, but arguments and characterization of the evidence by counsel are neither pleadings nor facts. It is for you to determine from a consideration of all the facts if the State has proven beyond a reasonable doubt that the defined statute was violated, in some way, once, twice [,] three time[s], or four times [,] or if the State has failed to meet that burden of proof. You may choose to relate a specific conduct or incident to a particular count to assist your deliberation, but that is up to you. It is your sole province to determine the facts of this case.

Defense counsel did not object to the court’s response, but the district court later stated, after addressing preservation on remand from the court of appeals, that defense counsel had...