State v. Dever

508 P.3d 158

STATE of Utah, Appellee,

v.Joshua Vance DEVER, Appellant.

No. 20200143-CA

Court of Appeals of Utah.

Filed March 17, 2022

Nathalie S. Skibine and Michael D. Misner, Attorneys for Appellant

Sean D. Reyes, Salt Lake City, and John J. Nielsen, Attorneys for Appellee

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges David N. Mortensen and Jill M. Pohlman concurred.

Opinion

CHRISTIANSEN FORSTER, Judge:

¶1 Following a jury trial, Joshua Vance Dever was convicted of sodomy upon a child for sexually abusing his ex-girlfriend's daughter, Faith.¹ Dever now appeals, arguing, among other things, that the district court erred in denying his motion for a directed verdict and in instructing the jury. While we conclude the court did not err in denying Dever's motion for a directed verdict, we agree with Dever that the court's jury instruction was erroneous. Accordingly, we reverse and remand for a new trial.

BACKGROUND²

¶2 Dever began dating Faith's mother (Mother) when Faith was around eighteen months old. The couple dated for approximately four years and had a child together (Sister). During their relationship, the couple lived together along with Faith, Sister, and Dever's older daughter from a previous relationship (Stepsister). Before the couple separated, Faith and Dever had a "really good" relationship; Faith called Dever "dad" and "[s]he loved him."

¶3 The couple separated in the fall of 2014. However, Dever continued to care for both Faith and Sister, and he "continued to be a father figure" to Faith. Although there was no set visitation schedule, it was typical for the girls to visit Dever "once or twice a week, if not more," and they would frequently stay with him overnight on the weekends while Mother worked. At that time, Dever lived in his mother's two-bedroom apartment, which he shared with her, his younger sister, and Stepsister. Dever did not have his own bedroom and would sleep on the couch in the living room. When Faith and Sister stayed overnight, they would sleep together along with Stepsister on a mattress on the floor of the living room next to the couch where Dever slept.

¶4 On May 29, 2015, when Faith was six years old, Dever picked up Faith and Sister for a weekend visit. Dever returned the girls to Mother's house on May 31. Upon their arrival home, Mother unpacked a suitcase containing the clothes Faith and Sister had worn over the weekend at Dever's house and placed them in the washing machine, but she did not start it. Mother then got the girls ready for bed. As Mother "tucked the girls into bed," Faith informed her that she had left her "special blanket" at Dever's house and that she did not "ever want to go to Dad's house again" because "Dad ... woke [her] up, ... took down [her] underwear, and licked [her] butt." At trial, Mother testified that, at that time, Faith used the word "butt" to mean vagina.³

¶5 Mother promptly contacted the police to report that Faith had made allegations of sexual abuse. An officer responded and directed Mother to remove the girls’ clothing from the washing machine and put it in a paper bag, which she did.

¶6 On June 3, 2015, Faith went to the Children's Justice Center (CJC) for an interview. During the interview Faith told the detective that while she was asleep, "Dad just picked me up, and he told me just take my underwear off, and he licked my butt." Faith also told the detective that she and Sister talked about "when dad licked our butt." The detective then asked if that happened to Sister as well, and Faith responded, "No."

¶7 When asked about visiting her "dad's house," Faith stated she did not "want to go to [her] dad's house" anymore; she explained that while she was at her dad's house he had removed her underwear. But when asked if she could remember where it happened, Faith responded, "I went to mom's house." And when asked in what room in Dever's house it had occurred, she responded, "[W]e're going to a new place."

¶8 Next, the detective asked Faith if Dever had "ever done anything like that to [her] before." Faith responded in the affirmative, initially indicating that it "happened two times," before immediately changing her answer to "[o]ne time."

¶9 At the close of the interview, Faith again repeated the allegation against Dever and stated that it happened at "his mom's house."

¶10 Shortly after the interview, Dever went to the local police station to speak with the detective. The detective informed Dever about Faith's allegations and inquired about Dever's activities during the relevant timeframe. Dever denied the allegations and told the detective he had worked that weekend and had spent one night out of the house. He also noted that in addition to Faith and Sister, his mother, his sister, and Stepsister had all stayed at his house that weekend. A few days later, the detective asked Dever to provide a DNA sample, which he did.

¶11 Following Faith's interview, the detective went to Mother's house and collected the paper bag that held Faith's and Sister's clothing. The bag's contents were taken to the local lab and sorted; six pairs of underwear were removed and packaged individually. Based on Faith's allegations in the interview, those packages were then sent to the state crime lab to test for saliva.

¶12 The crime lab analyst tested each pair of underwear separately for human alpha-amylase, which is found in saliva and, although not as concentrated, can also be found in tears and fecal material. Four of the six pairs of underwear had stains that tested positive for human alpha-amylase. A small piece of each positive stain was clipped from the underwear; three cuttings were sent to an outside lab for further DNA testing.

¶13 DNA testing revealed that two of the samples were "inconclusive for male DNA." The third sample contained 0.08% male DNA.⁴ This sample, in turn, was compared against the reference sample provided by Dever. Based on a comparison of the two samples, the analyst concluded that Dever could not be excluded from the DNA found on the underwear.

¶14 In February 2017, nearly two years after Faith's initial allegations, Dever was charged with one count of sodomy upon a child. Shortly thereafter, Faith disclosed to Mother additional details about Dever's actions, explaining that during her last visit to Dever's house he "took off [her] underwear, licked [her] butt, and poked [her] with his belly button." Mother testified that Faith used "belly button" to mean penis. Mother immediately contacted the detective, and on April 6, 2017, Faith went to the CJC for a second interview.

¶15 During the second interview Faith told the detective Dever "did something to [her]"; he pushed "his belly button ... in [her] butt ... and he licked it." The detective asked when it happened, and Faith responded, "Like maybe on a Wednesday, Thursday, Friday. I don't know." She stated that it "made [her] cry" and she "hated it." She also indicated to the detective that it happened "more than one time."

¶16 Faith told the detective Dever touched her with his "belly button" while she was at his house, but she did not identify a specific room. She initially explained that it happened "[a]t night" while she was "watching a movie" but later stated that it happened "[i]n the morning."

¶17 After Faith's second interview, the State added a second count against Dever for rape of a child. However, concerned about potential delay, the State dismissed the rape charge and proceeded to trial on the sodomy charge alone.

¶18 A trial on the sodomy charge was held in August 2018. Although Dever was present in the courtroom, Faith was not able to identify him. Faith testified the last time she was at Dever's house he "picked [her] up," "pulled" off her clothes, "licked near [her] vagina," and "pushed [her] from his ... big belly button or something." She further testified that she "didn't like it" and she "was crying." Faith stated this happened in Dever's living room while she was trying to fall asleep. She was sleeping on the floor in the middle of Sister and Stepsister. Thereafter, Faith stated that only Dever and Sister were in the room when it happened. And later, on cross-examination, she explained that when Dever picked her up she was sleeping next to Sister because Stepsister "was in her room and their doors were shut."

¶19 On cross-examination, Faith testified that the abuse happened during the "[m]orning and nighttime" and "[n]ighttime and day." It happened when the sun was up and it was "[b]right" outside and also "when it turned dark."

¶20 Faith also told defense counsel that she was not sick during her last visit to Dever's house. And she stated that after the abuse, Dever took her and Sister back to Mother's house where the girls had breakfast.

¶21 Mother testified that prior to the alleged abuse, Faith was a "very happy," "very social," and "sweet little girl." Faith enjoyed spending time at Dever's house and "always seemed to have fun" during her visits. However, on the weekend of the alleged abuse, Faith "hid" behind a recliner at Mother's house when Dever came to pick her up for the weekend visit. And after the alleged abuse, Faith told Mother she did not "ever want to go to [Dever's] house again" and she no longer referred to Dever as her father. Furthermore, Faith "couldn't sleep" and would "wake up crying," claiming there were "big monsters over her bed harming her"; she also became "more fearful of things," more "distant," and no longer wanted anyone to touch her. In addition, Mother stated that on the weekend of the alleged abuse, Dever dropped the girls off at her house on Sunday around 7:30 p.m.

¶22 Dever testified in his own defense. He denied the allegations and called them "sick." He also explained that about one month before Faith made the allegations, Mother started dating someone new and Faith stopped referring to Dever as her father.

¶23 Dever testified about his schedule on the weekend of the alleged abuse. On Friday night, he picked...