State v. Pedersen

227 P.3d 1264

2010 UT App 38

STATE of Utah, Plaintiff and Appellee, v. Robert H. PEDERSEN, Defendant and Appellant.

No. 20080643-CA.

Court of Appeals of Utah.

February 19, 2010.

Jennifer K. Gowans, Park City, for Appellant.

Mark L. Shurtleff, atty. gen., and Christine F. Soltis, asst. atty. gen., Salt Lake City, for Appellee.

Before Judges DAVIS, THORNE, and GREENWOOD.¹

OPINION

GREENWOOD, Senior Judge:

¶ 1 Defendant Robert H. Pedersen appeals from his conviction of two counts of aggravated sexual abuse of his daughter T.P., arguing that his trial counsel and the trial court made various errors that individually and collectively resulted in an unfair trial. We affirm.

BACKGROUND²

¶ 2 In 2007, Defendant was charged by information with two counts of aggravated sexual abuse of T.P., stemming from two separate incidents: In 2002, Defendant allegedly improperly touched T.P. in their Salt Lake City, Utah home (the Salt Lake touching); in 2004, Defendant again allegedly improperly touched T.P. in their Heber City, Utah home (the Heber touching). During questioning, Defendant apparently admitted to police that he had intentionally and inappropriately touched T.P.'s breasts. This "confession," as the State characterizes it, was suppressed prior to trial because the trial court determined that Defendant's statements resulted from coercive police questioning and misleading promises of leniency. Because there was no physical evidence, all of the evidence presented at Defendant's jury trial was testimonial. Most significantly, T.P. testified as to the two alleged touching incidents.

The Salt Lake Touching

¶ 3 In 2002, T.P. was "eleven or twelve years old and lived with Defendant, her custodial parent, in Salt Lake City." In December of that year there was a power outage that lasted for several nights. To stay warm on one of those nights, T.P. slept on a couch in the living room close to a heater. T.P. testified that she bundled up that evening, going to sleep wearing "a long-sleeved blue shirt, a camisole tank top and some pajama pants and covered by two blankets." T.P. further testified that at some point during the night, she awoke when she became aware that Defendant was "moseying her to the floor." According to T.P., Defendant then laid down next to T.P. and "put his arm over her shirt onto her breast." Then, after a while, Defendant fully removed T.P.'s two shirts and "fondled her breasts for a long time." When asked to explain what she meant by "fondle," T.P. testified: "Like he would rub me, like, my whole chest and my stomach and he would like play with my breasts because I was starting to develop." T.P. continued, stating that after "about an hour," Defendant put both her shirts back on her and left her on the floor. T.P. testified that she was awake the entire time but had pretended to be asleep because she was confused. T.P. further stated that she had never spoken to Defendant about this incident because she was too afraid and didn't know what to do.

The Heber Touching

¶ 4 In late summer of 2004, Defendant touched T.P. again, this time in the family home in Heber. T.P. testified that she was in her younger brother's room watching television and playing video games on his bunk bed when this touching occurred. T.P. stated that she was on the bottom bunk with her brother when Defendant came into the room. At that point, T.P. testified that she climbed to the top bunk and lay down on her side so that she could continue watching SpongeBob SquarePants. She further testified that she felt uncomfortable because Defendant followed her to the top bunk and lay down on his side behind her, so that he too was watching television and his front was toward her back. T.P. testified that the only other person home at the time was her brother, who remained on the bottom bunk. At that point, Defendant put his hand around T.P. and placed his hand on her clothed breast. T.P. testified that Defendant's hand did not move around this time and was only on her breast for a minute at most "because she just jumped off the top bunk" and left the room. As with the Salt Lake touching, T.P. testified that this touching left her so uncomfortable and confused that she never spoke to Defendant about it.

Other Trial Testimony

¶ 5 In addition to T.P., the following people testified at trial: Defendant; Lynn Robertson, a victim advocate who initially reported T.P.'s alleged abuse; and Tiffany Barnes, T.P.'s sister and Defendant's stepdaughter. Defendant testified as to his innocence, denying inappropriately touching T.P., while conceding that he would often lie next to his children, had put his arm around T.P. numerous times, and possibly, on one of those occasions, could have accidentally put his hand on her chest. Defendant also testified at length about the events occurring on and leading up to the night of February 2, 2007 — when T.P. disclosed to the police that she had been touched inappropriately. Defendant testified that just days before he had changed the locks on the house because T.P. had disregarded her curfew several times. On February 2, Defendant called the police because he heard someone trying to get into the house. Aware that T.P. was out past curfew without the new house key, Defendant assumed that it was T.P. but called the police nevertheless, stating that "I was to the point of T.P.'s not going to listen to me, maybe she will listen to the police." Defendant testified that T.P. first complained to the responding officers that Defendant was not feeding her. According to Defendant, after the responding officers had determined that there was ample food in the house, T.P. "teared up and said Defendant is molesting me." Defendant repeatedly testified that it was possible he had inappropriately touched T.P. during "horseplay" or "wrestling," but also repeatedly denied ever inappropriately touching T.P. intentionally or with an intent to sexually arouse or gratify.

¶ 6 Lynn Robertson, a victim advocate for Wasatch County, testified as to why she felt compelled to report that she suspected T.P. was being sexually abused. She testified that a "good friend" of hers called her for advice as to how to report his suspicions of abuse, after the friend's son had become concerned that T.P. was being sexually abused. Because Robertson said she could "never be sure if the friend was going to follow up and really report" the allegations, she phoned Heber City Police to report the alleged abuse herself.

¶ 7 Finally, Tiffany Barnes, Defendant's stepdaughter, testified that Defendant had sexually abused her while she lived in his house. The admissibility of Tiffany's testimony was highly contested and was decided prior to trial. After holding an evidentiary hearing and considering briefing from the parties, the trial court concluded that Tiffany's testimony was admissible because it was relevant to the present case, it was offered for a permissible noncharacter purpose, and its probative value was not substantially outweighed by the danger of unfair prejudice. Tiffany testified at length about Defendant's alleged abuse of her, which included acts occurring approximately seven to ten years prior to the alleged events in the present case. Tiffany also testified in detail about the incidents leading to her allegations of abuse, as well as the reasons she later recanted.

¶ 8 The jury convicted Defendant as charged and the trial court sentenced him to, among other things, two concurrent terms of five years to life imprisonment. Defendant now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 9 Defendant first argues that his trial counsel was ineffective in several respects. "`An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.'" State v. Perry, 2009 UT App 51, ¶ 9, 204 P.3d 880 (quoting State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162).

¶ 10 Next, Defendant argues that the trial court incorrectly allowed evidence of Defendant's prior bad acts to be admitted, contrary to the mandates of rule 404(b) of the Utah Rules of Evidence. See Utah R. Evid. 404(b). "We review a trial court's decision to admit evidence under rule 404(b) ... under an abuse of discretion standard." State v. Nelson-Waggoner, 2000 UT 59, ¶ 16, 6 P.3d 1120. And although "we review the record to determine whether the admission of other bad acts evidence was scrupulously examined by the trial judge in the proper exercise of that discretion," id. (internal quotation marks omitted), we no longer constrain our review by granting the trial court's decision "limited deference," id. ¶ 16 n. 5 (citing State v. Decorso, 1999 UT 57, ¶¶ 14-18, 993 P.2d 837).

¶ 11 Defendant also contends that a mistrial was warranted due to prosecutorial misconduct. Claims of prosecutorial misconduct are subject to the preservation rule. See State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. Because Defendant did not preserve this issue before the trial court and raises it for the first time on appeal, we can review his claim only for plain error or exceptional circumstances. See id. Defendant does not argue that exceptional circumstances exist but does assert that the trial court plainly erred in failing to sua sponte declare a mistrial based on the alleged misconduct. Accordingly, we will reverse only if Defendant can "establish that `(i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.'" Id. ¶ 13 (alteration in original) (quoting State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993)).

¶ 12 Finally, Defendant appeals the trial court's denial of his motion for a directed verdict as to Count I (the Heber touching), arguing that the admissible evidence was insufficient to sustain the jury's conviction as to that count.

In

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