State v. Moore

493 P.3d 703

STATE of Utah, Appellee,

v.Joseph MOORE, Appellant.

No. 20190360-CA

Court of Appeals of Utah.

Filed July 9, 2021

Cherise M. Bacalski and Emily Adams, Attorneys for Appellant

Sean D. Reyes and Christopher D. Ballard, Salt Lake City, Attorneys for Appellee

Judge Jill M. Pohlman authored this Opinion, in which Judge Michele M. Christiansen Forster and Senior Judge Kate Appleby concurred.¹

Opinion

POHLMAN, Judge:

¶1 A jury convicted Joseph Moore of human trafficking of a child and other crimes. Moore appeals, claiming that his trial counsel was constitutionally ineffective in not objecting to certain expert witness testimony and in not seeking a mistrial. Because Moore has not shown that he was prejudiced by his counsel's performance, we affirm.

BACKGROUND²

¶2 While participating in a program for troubled youth, sixteen-year-old Mindy³ met Moore's twenty-two-year-old daughter (Daughter). The two became friends, and Daughter told Mindy about a website they could use to arrange sexual encounters with men for money. Daughter explained that men would pay more for an encounter with two girls and that together they could each make $200 to $300 per appointment. The proposal made Mindy nervous, but she liked the idea of making money to help support her family and to support her drug addiction.

¶3 Within a week, Daughter introduced Mindy to Moore. Moore, who was aware of Daughter's discussions with Mindy, suggested that Mindy have her nipples pierced "because it would attract more men." He drove Mindy to a piercing and tattoo parlor where he knew one of the employees. Because Mindy was under eighteen, Moore signed paperwork falsely stating that he was the one having his nipples pierced.

¶4 Moore also explained to Mindy that he would "partner" with the young women in the sex-for-money enterprise and that "[a]nything that [they] needed he would do." For example, he would "recommend [them] to his friends," and he would help them create online profiles and advertisements for their services using language that would not be flagged for illegal activity. He also would drive them to appointments and wait outside so that he could "protect" them "if anything went wrong."

¶5 With Moore's help, Mindy and Daughter posted their online profiles and advertisements and started taking appointments. When customers responded to an advertisement, Mindy, Daughter, and Moore would discuss when and where the encounter would occur. The three would also ensure that Moore could arrange his work schedule so that he could drive Mindy and Daughter to the appointments.

¶6 Over the next three months, Mindy and Daughter had at least one appointment almost every day in which they engaged in sex for money. In exchange for Moore's assistance in setting up the appointments, providing transportation, and acting as their "muscle," Mindy and Daughter paid him part of the proceeds they earned. They also often paid for Moore's meals and gas. Overall, Mindy estimated that she paid Moore about forty percent of her total earnings.

¶7 Moore's involvement in the operation ran smoothly until Mindy decided to end the arrangement because she felt that she and Daughter were "being bossed around and [she] didn't really like that ... [and] it became more like [Moore] was the boss." He decided which appointments the young women went to and which ones they did not. Gradually, Mindy felt that they were doing more of what Moore wanted and less of what Mindy and Daughter wanted.

¶8 The enterprise eventually raised suspicion, and Mindy and Daughter both confirmed to authorities that Moore had helped them engage in a commercial sex operation for nearly three months. The State charged Moore with one count of human trafficking of a child, one count of aggravated exploitation of a child prostitute, and one count of exploiting prostitution. Moore pleaded not guilty, and the case was set for trial.

¶9 At trial, the State called as its first witness a professor (Expert) "to educate the jury on human trafficking" and to dispel some "common misconceptions" about the subject. She explained that human trafficking generally occurs when a person "recruits, obtains, harbors, transports ... or entices" others through force or fraud "for the purpose of their sex or labor." She further explained that children engaged "in sexual economies," including prostitution and pornography, are considered "sex trafficked" because children "cannot consent to their own abuse."

¶10 Expert then explained that individuals who are trafficked vary by age, race, and class, and it "is not just an international phenomenon"; it occurs in Utah and throughout the United States. She also explained that a person does not have to be kidnapped to be trafficked; rather, one can "be trafficked out of their own home" and even by a parent. She further explained that those who are trafficked are not always "locked up in basements" or "hidden from sight," and that while some will report the trafficking almost immediately, others may stay in "abusive conditions" for years and even decades. She stated that a trafficker "might break a person's will to leave" by debilitating or "literally" exhausting that person.

¶11 Expert testified that traffickers employ a range of recruitment methods. Some use force or violence to compel someone to participate in a sex-for-money enterprise; others establish a romantic relationship with an individual and then appeal to that individual's emotional needs to impel participation. In other cases, a trafficker may employ a business methodology whereby the trafficker appeals to an individual's need for money. Someone who is impoverished or has a drug addiction may be particularly vulnerable to a trafficker's proposal. Expert also described "peer to peer recruitment," explaining that someone being trafficked may be used to recruit others.

¶12 Expert also described the trauma one who has been trafficked may experience. She explained that individuals may be fearful, angry, and depressed and that the trauma associated with being trafficked can impact a person's memory. Expert also identified some of the red flags that might indicate a minor is being trafficked, including missing school, falling asleep frequently, and suddenly having nice things.

¶13 Finally, Expert testified about the different ways sex trafficking is advertised, including through websites and on social media. She also explained that trafficking is a lucrative business because a trafficker can "sell a person over and over again." And child trafficking can be especially lucrative in part because of the "huge demand" for young girls known as "cherry girls" who "just had their first period."

¶14 Throughout Expert's testimony, she used the word "survivor" to refer to individuals who have been trafficked. She (along with the prosecutor) also used the word "victim" a handful of times.⁴ But Expert never used either word in reference to Mindy or Daughter, nor did she opine on whether Moore had engaged in human trafficking. She acknowledged that she knew nothing about the facts of the case and was speaking only generally.

¶15 Moore's trial counsel did not object to the relevance of Expert's testimony. But after Expert testified, the district court noted outside the presence of the jury that it needed to find that Expert's "testimony was appropriately entered" under Rule 702 of the Utah Rules of Evidence,⁵ and it expressed concern that "various parts of her testimony ... didn't seem to have applicability to the facts of this case." The court observed that Expert "essentially provide[d] a lecture to the jury on human trafficking," and that some of her testimony, including the "comments about children being virgins," were disconnected from the actual facts. Still, the court noted that the lack of an apparent "direct[ ]" connection to this case "could cut two different ways," and it invited the parties to submit briefing on the testimony's admissibility.

¶16 In response, the State filed a memorandum; Moore's trial counsel did not. The State argued that although some parts of Expert's testimony "did not readily apply to the facts of this case," other parts would be useful to the jury in understanding Mindy's "behaviors." To address the testimony that "may not have applied to the evidence [the jury] heard," the State suggested a cautionary instruction informing the jury that it could disregard irrelevant testimony.

¶17 The district court raised the issue again while reviewing the proposed jury instructions with counsel. Moore's counsel agreed that the jury should be cautioned "that some of what [Expert] said is not applicable to this case," but counsel was wary about overemphasizing any particular aspect of the testimony. After additional discussion with both attorneys, the court ultimately instructed the jury, "Some portions of the expert testimony may not apply to the evidence you heard. You may choose not to consider any portions of the expert testimony about human trafficking that are not applicable to the evidence presented."

¶18 After Expert testified, Mindy took the stand. She explained how she came to be involved in a commercial sex enterprise with Daughter and Moore, and she described the specifics of Moore's involvement. She admitted that as the result of trauma and drug use, "[t]here [were] bits and pieces" of the relevant period that she could not recall, but she remembered "the majority of what happened." And when asked whether she might have lied because she was angry with Moore, she stated that she was "not mad at [him]" and did not "wish bad things upon [him]."

¶19 Although Daughter did not testify at trial, another of Moore's daughters (Second Daughter) did. Second Daughter testified that on several occasions, Moore told her that he had taken Daughter and Mindy "to Salt Lake to meet a guy to have sex and then they would pay him for driving them out there and to drive them back to Ogden." She further testified that Moore had described how he...