State v. Mills

293 P.3d 1129

724 Utah Adv. Rep. 40

STATE of Utah, Plaintiff and Appellee,

v.Ryan Daniel MILLS, Defendant and Appellant.

No. 20110539–CA.

Court of Appeals of Utah.

Dec. 28, 2012.

Brian E. Arnold and Mark E. Arnold, Ogden, for Appellant.

Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee.

Before Judges THORNE, VOROS, and ROTH.

OPINION

THORNE, Judge:

¶ 1 Ryan Daniel Mills appeals from his convictions on three counts of unlawful sexual conduct with a sixteen or seventeen year old, seeUtah Code Ann. § 76–5–401.2 (2008); one count of enticing a minor, see id. § 76–4–401; five counts of sexual exploitation of a minor, see id. § 76–5a–3 (current version at id.§ 76–5b–201 (2012)); and one count of rape, see id. § 76–5–402 (2008). We affirm.

BACKGROUND ¹

¶ 2 In January 2009, Mills was in Utah on leave from his active duty Army posting in Louisiana when he ran into sixteen-year-old C.D. at a grocery store in Duchesne. Mills, who was twenty-eight years old at the time, knew C.D. as the daughter of his brother's ex-wife. Mills flirted with C.D., and the two began texting each other regularly. Over the next few weeks, Mills pursued a relationship with C.D., and Mills and C.D. had sex several times before Mills returned to Louisiana in February.

¶ 3 Mills and C.D. continued to communicate by text and by phone. C.D. sent Mills pictures of herself from her cell phone, and Mills asked C.D. to send him nude pictures. At first, C.D. refused, but Mills persisted, telling C.D. that it would be “a good way to keep our relationship good.” C.D. eventually gave in to Mills's requests, and she sent him five different pictures of herself nude from the waist up over the course of the next several weeks.

¶ 4 Mills drove back to Utah on leave in June 2009. He immediately went to visit C.D., and the two once again had sex. However, the subject of sex had become a point of contention in the relationship, and afterwards, the two argued about Mills's motives. A few days before the Fourth of July, Mills went to C.D.'s home, and C.D. agreed to let him spend the night as long as he promised that they would not have sex. Mills promised that they would not, but when the two went to bed, Mills began making physical advances. C.D. repeatedly told Mills to stop and tried to push him away, but Mills held her down and forced himself on her. When C.D. confronted Mills in the morning, he first denied having had sex with her, and then told her that he must have been sleeping. C.D. and Mills did not have sex again, and before Mills left for Louisiana, C.D. borrowed his computer and deleted a folder containing pictures of her, including at least two of the topless pictures she had sent him.

¶ 5 C.D. did not report the rape to authorities until April 2010, after Mills persisted in texting her despite her demands that he stop. Detective Wade Butterfield of the Duchesne County Sheriff's Office was assigned to the case, and he interviewed C.D. on April 8. Butterfield then began attempting to contact Mills, who by this time was stationed in South Carolina. Butterfield finally spoke to Mills by phone on April 29, at which time Mills admitted to having had consensual sex with C.D. Also on April 29, the State charged Mills by information with fifteen crimes arising from his interactions with C.D. The State seized Mills's computer pursuant to a warrant and sent it to a forensic facility for examination. No pictures of C.D. were ever recovered from the computer.

¶ 6 Mills's preliminary hearing was set for July 8, 2010, but was continued several times at Mills's request. The hearing was finally held on October 4, 2010, at which time the State dismissed five of the ten counts of sexual exploitation of a minor that were charged in the information.² Mills was bound over on the remaining ten charges—three counts of unlawful sexual contact with a sixteen or seventeen year old, one count of enticing a minor, five counts of sexual exploitation of a minor, and one count of rape. Trial was set for January 19, 2011. Prior to trial, Mills sought to suppress his phone interview with Butterfield because Butterfield had failed to give him Miranda warnings prior to the interview. The district court denied Mills's motion to suppress.³

¶ 7 On December 9, 2010, forty-one days prior to trial, the State filed a notice that identified two proposed expert witnesses who had participated in the forensic analysis of Mills's computer. However, on January 13, 2011, the State notified defense counsel that no evidence had been found on Mills's computer and that the State no longer intended to call its expert witnesses. Mills responded by seeking a continuance of trial because, among other reasons, the State had not provided him with copies of the experts' reports. On the morning of the scheduled January 19 trial, the State confirmed that it would not be calling the expert witnesses. The district court granted Mills's motion for a continuance and rescheduled the trial for February 15. The district court indicated that there would be no further continuances. Later in the day on January 19, the State provided Mills with copies of the experts' reports.

¶ 8 On the first morning of trial, Mills again raised the expert witness issue, arguing that he had not been provided with the expert witnesses' reports thirty days prior to trial as required by Utah law. The district court expressed to the parties that the State's failure to timely disclose the expert reports would likely preclude the State from calling those witnesses but did not present a problem in light of the State's decision to not call them. Nevertheless, the district court invited Mills to “make a motion on Rule 16,” referring to the criminal rule governing discovery. SeeUtah R.Crim. P. 16. Mills's counsel responded, “I think we can move forward,” and then confirmed the district court's observation that he was waiving the issue. Shortly thereafter, when the district court refused to allow Mills to call the two experts as defense witnesses due to Mills's own failure to provide notice, Mills's counsel attempted to retract his waiver. The district court denied the motion to retract the waiver, and no motion for continuance was ever made.

¶ 9 Trial proceeded, with C.D. and Butterfield providing the only testimony in the State's case in chief. C.D. described the various sex acts that had occurred, including the alleged rape. The State did not produce the nude pictures of C.D. that gave rise to the sexual exploitation counts, but C.D. described each of the five images in detail and testified that each depicted her bare breasts. C.D. testified that she took the pictures and sent them to Mills over the course of several months at his repeated requests. She also testified that she later deleted the pictures from Mills's computer in Utah, stating that “there was a folder with my name on it and it had pictures of me clothed and pictures of me nude. I just deleted the whole folder.” However, when asked specifically if she had seen any of the five nude pictures on Mills's computer, she answered only that she had seen “two of them in the little thumbnails on the folder.” The jury also heard the audio recording of Butterfield's phone interview with Mills, as well as defense testimony from another detective, from Mills's brother, and from Mills himself.

¶ 10 Near the end of trial, Mills made a motion to dismiss the five sexual exploitation of a minor counts. Mills argued that the State had not actually produced the nude pictures of C.D. at trial and that there was no evidence that Mills had ever possessed those pictures within the state of Utah. The district court responded,

I'm going to deny the motion. I believe there's enough evidence to go to—to the jury. The young lady said that she viewed pictures that she erased on the computer in Duchesne County. So you're making it on a jurisdictional issue based upon the fact that he was in another state. Also, I believe jurisdictionally, if they were created in Utah and sent, Utah has—has joint jurisdiction with where they were sent to. So I will deny your motion at this point in time.

The jury convicted Mills on all charges, and he now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 11 Mills first argues that the district court should have suppressed his phone interview with Butterfield. Mills argues that the interview constituted a custodial interrogation that entitled him to Miranda warnings and that he did not waive his Sixth Amendment right to have the assistance of counsel during the interview. “We review determinations of custodial interrogation for correctness, giving no deference to the trial court's decision.” State v. Butt, 2012 UT 34, ¶ 7, 284 P.3d 605. However, we will generally not consider issues that were not adequately preserved for appeal in the district court. See State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346.

¶ 12 Second, Mills argues that the State's failure to provide full and timely notice of its proposed expert witnesses deprived Mills of his due process rights to confront the witnesses against him and to present exculpatory evidence. Issues that implicate the district court's refusal to grant a continuance are reviewed only for abuse of discretion. See State v. Torres–Garcia, 2006 UT App 45, ¶ 10, 131 P.3d 292 (“The decision to grant or deny a requested continuance lies within the broad discretion of the trial court, and we will not disturb such a decision absent a clear abuse of discretion.” (internal quotation marks omitted)).

¶ 13 Third, Mills argues that the district court lacked criminal jurisdiction over at least three of his five sexual exploitation of a minor convictions because the evidence shows that Mills possessed only two of the five nude images of C.D. within the state of Utah. Whether the district court had criminal jurisdiction is a question of law, which we review for correctness. See State v. Holm, 2006 UT 31, ¶ 10, 137 P.3d 726.

¶ 14 Finally,...