State v. D.A.T. (State ex rel. D.A.T.)

494 P.3d 393

STATE of Utah, IN the INTEREST OF D.A.T., a Person Under Eighteen Years of Age.

State of Utah, Appellee,

v.D.A.T., Appellant.

No. 20190986-CA

Court of Appeals of Utah.

Filed July 1, 2021

Jack M. McIntyre, Salt Lake City, Lori J. Cave, Provo, and Richard R. Golden, Salt Lake City, Attorneys for Appellant

Sean D. Reyes and Kris C. Leonard, Salt Lake City, Attorneys for Appellee

Judge Gregory K. Orme authored this Opinion, in which Judges Ryan M. Harris and Diana Hagen concurred.

Opinion

ORME, Judge:

¶1 Appellant, a minor referred to throughout this opinion as DAT, challenges his delinquency adjudication on one count of forcible sexual abuse. DAT argues that the juvenile court erred in allowing the State's witnesses to rebut his alibi defense after the prosecutor failed to provide him with notice of those witnesses as required by statute. We reject his argument and affirm.

BACKGROUND¹

Abuse and Investigation

¶2 On February 28, 2019, while riding home on the school bus, 15-year-old DAT moved from his seat and sat next to a 14-year-old girl (Victim). DAT and Victim had known each other "[s]ince [they] were little." DAT soon began "just to touch [Victim's] leg." Victim told DAT to stop, but he did not. DAT then put his hands down Victim's pants and inserted his finger into Victim's vagina three times. Victim told him no on each occasion and "kept pushing his hands away."

¶3 When Victim arrived home, she "went right to her bedroom." Victim's mother (Mother) followed and asked what was wrong, to which Victim responded "that she wanted to commit suicide." Victim then told a friend (Friend 1) of the abuse via text. Friend 1 urged her to tell school officials, but Victim did not do so right away, explaining "there [was no] proof that he did it [and it] would be my word vs his word." The date of the text-message exchange indicated that the text exchange occurred on February 28. Victim and Friend 1 then had a group call with another friend (Friend 2), during which Victim told both of them about the abuse DAT perpetrated against her. A screenshot taken from Victim's phone showed that this call also occurred on February 28.

¶4 Five days later, Victim informed school officials of the abuse, and a police officer (Officer) was assigned to investigate. Officer interviewed Victim, Mother, Friend 1, Friend 2, DAT, DAT's mother, and two other students who were on the bus the day of the abuse.

¶5 Victim initially told Officer that the abuse occurred on February 27. But DAT's mother told Officer that DAT was not in school or on the bus on February 27 because he was at a dental appointment. Officer confirmed that this was the case and returned to Victim with this information, but Victim reiterated that February 27 was the date on which the abuse occurred. Friend 1 also told Officer that while the text message exchange between him and Victim occurred on February 28, the abuse happened on February 27.

¶6 Another student who was on the bus (Witness) informed Officer that she remembered seeing DAT on the bus with his hand on Victim's leg, but could not recall the date and noted that it "could have been months ago." Witness also told Officer that DAT was "usually not on the bus." The other students Officer interviewed saw no inappropriate touching of Victim by DAT.

¶7 During his interview with Officer, DAT "admitted putting his hand on [Victim's] leg" while riding the bus but denied doing anything else. Officer "never told him what date, ... just ... what the accusations were." DAT appeared "astonished" at the accusations, but he did not deny touching Victim's leg.

¶8 A few weeks later, Mother called Officer and informed him that the text and call information on Victim's phone indicated that the texting and group call with Friend 1 and Friend 2 occurred on February 28 and, as memorialized by Officer in his report, that "this would confirm the incident on the bus between [DAT] and [Victim] occurred on 2-28-19 not 2-27-19." Officer again met with Victim, who showed Officer screenshots from her phone verifying that date. Officer scanned the messages to see whether the date of the incident was mentioned in the texts themselves, but it was not. There were security cameras at the school, but Officer did not view or obtain any of the footage from the dates in question.

¶9 The State filed a delinquency petition in juvenile court alleging that "[o]n or about February 27, 2019," DAT committed forcible sexual abuse of a child fourteen years of age or older, a second-degree felony if committed by an adult. After filing the petition, the prosecutor provided DAT with the police reports and interviews, which included all the information discussed above. Sometime after receiving this information, DAT filed a Notice of Intention to Claim Alibi, pursuant to Utah Code section 77-14-2 (the alibi statute).² In this notice, DAT informed both the prosecutor and the court that he intended to claim he was not in school or on the bus on February 27 because he was at the dentist's office, and that he was not on the bus on February 28 and intended to present an alibi witness (Alibi Witness) who would testify that he drove DAT home from school that day. The prosecutor did not respond to the notice.

Delinquency Hearing

¶10 Officer was the first to testify at the delinquency hearing. Before Officer could begin testifying about his investigation, however, DAT's counsel objected:

Under [the alibi statute], we did file a notice of alibi defense in this case a long time ago. We didn't receive a response to that, so with respect to February 27th or February 28th, I'm going to object to any evidence being produced to refute that alibi on those dates. The Court can only waive that right for good cause being shown.

¶11 The prosecutor replied that while he did not file a response to the alibi notice, the police reports that "had gone to them initially indicat[ed] the dates that were involved and ... the issue regarding the dates, [and he] was functioning under the assumption that that took care of [it]." He further stated that "initially, it was reported ... that they were talking about the 27th of February [but a] subsequent investigation and a supplemental report indicate and clarify that the date was actually the 28th." DAT's counsel responded that "the report does say that, but the code seems to contemplate they're going to identify specific witnesses that are going to refute my alibi defense" and "the police report is not the same thing as a separate written response to a notice of alibi defense." The juvenile court noted that while the alibi statute contemplated that the State would provide a separate written document in response to an alibi notice, "the substance of the statute ... would establish a basis for good cause ... in that the substance is the information that would be provided by [the police] report." The court then ruled that "good cause has been shown in that the defense has had the name of the witness, [and] has had the dates that the prosecution would be presenting evidence on." Accordingly, the court "waive[d] the requirement of [the alibi statute]." Officer then proceeded to testify regarding his investigation, along the lines recounted above.

¶12 Victim then testified that the text exchange with Friend 1 and the group call with Friend 1 and Friend 2, both of which were time-stamped on her phone as February 28, occurred on the same day as the incident with DAT. Victim testified that she "rewrote a police statement," correcting the date of the incident from the 27th to the 28th because she had initially "got [her] dates mixed up" and subsequently "found evidence that it happened the 28th."

¶13 Witness testified next and recounted that DAT and Victim were on the bus on February 28. This testimony differed from her statement to Officer in which she stated that it "could have been months ago." DAT did not object to Witness's testimony at this point. On cross-examination, Witness acknowledged that she could now recall the date only because the prosecutor had informed her of the correct date. At the beginning of the prosecutor's redirect examination of Witness, DAT's counsel interrupted the prosecutor's questioning and requested a sidebar conference. Unfortunately, the majority of this conversation in the record is characterized as unintelligible. The entirety of the conversation, as it appears in the transcript of the delinquency hearing, is as follows:

[DAT's Counsel]: Well, let me ... tell you what my concern is and then Your Honor can decide whether or not we want off.

(Side bar conversation was held.)

[Counsel]: But (unintelligible).

The Court: Well, she's already testified now.

[Counsel]: (Unintelligible.)

The Court: [Prosecutor], your response?

[Counsel]: (Unintelligible.)

[Prosecutor]: I don't (unintelligible).

The Court: And that information was provided ... to Counsel?

[Counsel]: (Unintelligible) this morning.

[Prosecutor]: (Unintelligible.)

[Counsel]: (Unintelligible.)

The Court: Well ... from my view, you have not been ambushed. You ... already did your cross-examination, you asked for an exhibit to be admitted and it was admitted, and so ... I'm going to overrule the objection.

Mother, Friend 1, and Friend 2 also testified consistent with their accounts as summarized above. The State also called one of the two other students on the bus whom Officer had interviewed. This student testified that she did not remember specific dates that DAT was on the bus but that she had seen DAT on the bus before, although he rode the bus infrequently.

¶14 As part of his defense, DAT called the school bus driver to testify. She said that she had no recollection of the dates in question. She stated that she does not allow students to change seats on the bus but acknowledged that when "driving down the highway at 65, I don't see everything." DAT also called Alibi Witness, who testified that he "picked [DAT] up from school and took him home" on February 28. Alibi Witness also testified...