State v. Peraza

427 P.3d 276

STATE of Utah, Appellee,

v.Robert Alonzo PERAZA, Appellant.

No. 20160302-CA

Court of Appeals of Utah.

Filed April 19, 2018

Douglas J. Thompson and Margaret P. Lindsay, Attorneys for Appellant.

Sean D. Reyes and William M. Hains, Salt Lake City, Attorneys for Appellee.

Judge Kate A. Toomey authored this Opinion, in which Judges Jill M. Pohlman and Ryan M. Harris concurred.

Opinion

Toomey, Judge:

¶1 Robert Alonzo Peraza appeals his conviction of four counts of sodomy on a child (Child). Peraza's trial was continued twice because the State did not provide all relevant discovery in time for defense counsel to prepare a defense and to procure an expert witness for impeachment purposes. Then, thirty-two days before trial, the State filed a notice of expert witness to rebut Peraza's anticipated defense. The notice disclosed the name and address of the expert (Expert), her curriculum vitae, a one-sentence description of the nature of her testimony, and a list of citations to more than 130 articles upon which Expert would rely; the notice did not include an expert report.

¶2 We are asked to determine whether the State sufficiently complied with the notice requirements under Utah Code section 77-17-13 and, if not, whether the district court erred in admitting Expert's testimony under rule 702 of the Utah Rules of Evidence. We are also asked to determine whether, based on the lack of expert report, Peraza's third motion for a continuance should have been granted. We conclude the district court exceeded its discretion when it denied the motion to continue after erroneously deciding to allow Expert to testify. The State's notice did not comply with section 77-17-13, depriving the court of the information necessary to rule on the admissibility of Expert's testimony under rule 702. The State also failed to meet its burden of demonstrating that Peraza would not be prejudiced by the denial of his motion. Peraza was entitled to a continuance so that he could prepare to respond to Expert's testimony. We therefore vacate Peraza's convictions and remand for a new trial.¹

BACKGROUND

The Allegations

¶3 Peraza was charged with four counts of first-degree sodomy on a child² after Child accused him of sexually abusing her.³

¶4 Child informed her mother (Mother) and her grandfather that Peraza did "bad things" to her that she "did not like." During an interview at the Children's Justice Center (CJC), Child told a social worker that Peraza did something to her that happens "when parents really love each other." Child explained that Peraza showed her his "pee pee," and made her use a hand gesture while she touched it, and he forced her to touch it with her mouth. She said he forced her to do this more than once.

¶5 After the first CJC interview, Child moved to California to live with her father, and after relocating to California she began therapy. Part of her treatment was to, "make effigy dolls, and ... kill the effigy doll named [Peraza]." Eventually, Child disclosed that a second perpetrator may have also sexually abused her, and she made and "killed" effigy dolls of that person too.

¶6 Child's descriptions of the abuse varied over time. On some occasions, she was explicit in describing the acts Peraza had her perform, including descriptions of anal penetration; at other times she recanted what she had described. While she was living with Mother in Utah, Child wrote Mother a note asserting that the abuse did not happen. After she moved to California, Child called Mother, more than once, to say that Peraza did not do anything to her. She also told a private investigator that Peraza did not touch her and that she never touched him.

¶7 But at trial, Child withdrew her recantations and testified that Peraza sexually abused her. She also provided more detail when describing the abuse than she had done in previous interviews and therapy sessions. For example, at trial, she testified that "Peraza had put his penis in her vagina"; that testimony was the first time the prosecutor and defense counsel had heard that allegation.

Pretrial Proceedings

¶8 Peraza's trial was first scheduled for March 2015. But the district court granted Peraza's motion for a continuance based on newly disclosed "evidence warranting additional investigation"—including a sexual assault nurse examination report; Child's second interview with someone at a CJC in California; and the State's indication of its "intent to have [Child's therapist] testify at trial." The court set a pretrial hearing in April to schedule a new trial date. During that hearing, defense counsel argued, based on arguments made in Peraza's motions supporting his motion for a continuance, that trial could not be scheduled because the State still had not produced the requested evidence, the therapist had not provided Child's therapy records, and these records had not been subjected to an in camera review.⁴ The court determined it would postpone scheduling a trial until further evidence had been disclosed.

¶9 In June 2015, the district court issued a subpoena duces tecum for Child's therapy records, and the State stipulated to an in camera review of those records. By August, the court still had not received Child's therapy records, but the therapist indicated she was reviewing them to redact information not relevant to the case. Relying on this, the court scheduled trial for October 2015. Then in late September, after receiving the records and defense counsel's request for information from the records, the court informed the parties it would provide the redacted records "by the end of [the] week."

¶10 Although trial was set for the end of October 2015, defense counsel requested another continuance because he had learned that a private investigator recorded one of Child's recantations. Counsel also explained that he needed more time to secure Child's therapist as a fact witness "for impeachment purposes" because of Child's recantations. The State agreed that given the circumstances, "it'd be better to continue the trial" and stated that it was also "look[ing] at re-filing" a notice of expert witness based on Child's therapy records. The court commented that it did not "know that [it] ha[d] any choice" and continued the trial to February 2016 with a final pretrial conference scheduled for late January.

¶11 During the January pretrial conference, the State stipulated to the introduction of Child's therapy records for impeachment purposes because defense counsel was unable to procure Child's therapist as a witness at trial. Peraza also challenged whether Expert should be allowed to testify. The court agreed to hear oral argument on Peraza's objection the following week, on January 28, 2016—twelve days before trial.

¶12 During the hearing, defense counsel argued that the State's notice of expert witness was inadequate because it did not include an expert report or any written explanation that would inform the court "exactly what this expert would be testifying to." The notice provided Expert's name and address, her curriculum vitae, and a list of more than 130 articles that she would be relying upon. The notice also included a one-sentence statement that the State intended to use Expert to present evidence of the "methodology and science related to forensic interviewing of suspected child sex abuse victims" and related to "child disclosures of sex abuse including identified factors related [to] delayed, partial and gradual disclosures and recantations." But counsel asserted that he could not get access to the articles cited, because the medical journals in which they were published required readers to pay for a subscription. And without an expert report, defense counsel argued that all he had been provided were "topics" that could be related to Expert's testimony. Further, he argued,

What's troubling to me is, I don't know if those are case notes that talk about possible theories, which if they're just theories, that would be argument, and the state is clearly allowed to argue. But to present evidence of this nature, I think implies a statistical analysis. And the case law that was cited in my objection ... ha[s] already said that [our courts] disfavor this type of testimony, because ... it implies there's a scientific ... [and] statistical basis for it, but yet there isn't an actual statistical basis for [the theories].

He asked the court "to incorporate the objection that [was] filed" in response to the State's initial notice of expert when the State sought to admit Child's therapist's testimony. This written objection, based on Utah Code section 77-17-13 and rules 702 and 403 of the Utah Rules of Evidence, discussed the prejudicial effects of expert witnesses testifying to "statistical evidence of matters not susceptible to quantitative analysis" and pointed out that the Utah Supreme Court had determined in State v. Rammel , 721 P.2d 498 (Utah 1986), that "statistically valid probabilities evidence that focuses the jury's attention on ‘a seemingly scientific, numerical conclusion’ " should be excluded. Id. at 501.

¶13 The State handed the court a copy of defense counsel's previous written objection, then explained that the purpose of Expert's testimony was to rebut the defense's assumed strategy of showing "that [Child] changed her testimony over time, [and] at one point that there was a recantation." Moreover, it did not intend "to have [Expert] say that [Child] is telling the truth or lying, but to simply explain to the jury that there are circumstances" where children "with confirmed histories of sexual abuse" have expressed "denial or hesitation" in their disclosures of the abuse.

¶14 Defense counsel countered that "with no doubt, we will be presenting evidence that [Child] has recanted both to her mother and also [to] a private investigator." But he argued that without a report from Expert, the State's notice did not provide sufficient information with respect to Expert's proposed testimony to allow the...