State v. Peraza

469 P.3d 1023

STATE of Utah, Petitioner

v.Robert ALONZO PERAZA, Respondent.

No. 20180487

Supreme Court of Utah.

Heard April 18, 2019

Filed July 15, 2020

Sean D. Reyes, Att'y Gen., William M. Hains, Asst. Solic. Gen., Salt Lake City, Randy M. Kennard II, Provo, for petitioner

Douglas J. Thompson, Provo, for respondent

Justice Petersen authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Pearce joined.

On Certiorari to the Utah Court of Appeals

Justice Petersen, opinion of the Court:

INTRODUCTION

¶1 Robert Alonzo Peraza was convicted of four counts of sodomy on a child. The court of appeals vacated those convictions, concluding that the trial court committed two reversible errors: allowing the State's expert witness to testify in violation of Utah Rule of Evidence 702 and denying Peraza's request for a continuance of the trial date.

¶2 The State petitioned for certiorari, arguing, among other things, that the court of appeals erred by conflating the standards and remedies under Utah Code section 77-17-13 (Expert Notice Statute) and rule 702, and by placing the burden on the State to prove that Peraza had not been prejudiced by the denial of his motion for a continuance.

¶3 We conclude that the court of appeals did conflate the requirements and remedies of the Expert Notice Statute and rule 702. We also hold that it erred in shifting the burden to the State to disprove prejudice.

¶4 We therefore reverse the court of appeals’ holding that the trial court erroneously admitted the expert witness testimony. And we remand to the court of appeals to apply the correct prejudice standard in relation to the trial court's denial of Peraza's motion to continue and to address any remaining claims.

BACKGROUND

Sexual Abuse Allegations

¶5 A nine-year-old child told her mother and grandfather that Peraza, the child's stepfather, had been sexually abusing her. The grandfather immediately contacted the police, who began investigating the allegations. As part of the investigation, the child was interviewed at the Children's Justice Center (CJC). She disclosed that Peraza began forcing her to perform oral sex on him when she was six years old and that the abuse had continued until recently. During the interview, the child described in graphic detail the anatomy of male genitalia, the erectile and ejaculatory process, the appearance of semen, and the physical motions of masturbation.

¶6 Peraza was subsequently arrested and interviewed by the police. He initially denied sexually abusing the child, stating that he believed the child's mother and grandfather had likely coached her into making the allegations. Eventually, however, Peraza acknowledged that there was at least one occasion where he had been drunk and could have mistaken the child for his wife and unwittingly forced her to perform oral sex on him. He then admitted it could have happened "a few more times."

¶7 In the period after Peraza's arrest, the child recanted the allegations to her mother and Peraza's private investigator. But the child later reaffirmed the earlier descriptions of abuse and added additional allegations against Peraza and another perpetrator. She explained that she had lied when she recanted the abuse allegations because she did not want her family to be separated.

¶8 The State ultimately charged Peraza with four counts of sodomy on a child¹ and one count of aggravated sexual abuse of a child, all first-degree felonies. He pleaded not guilty to the charges and requested a jury trial.

Pretrial Proceedings

¶9 Before trial, the State filed a notice of its intent to call the child's therapist from California as an expert witness to testify "generally about the psychological symptoms, reactions, and behaviors common in children that report having been abused sexually, and that her observations of [the child's] symptoms and behavior are consistent with those of other children who report sexual abuse." The State's notice indicated that the child's therapist "may also provide corroborative evidence to rebut any defense claims of fabrication, coaching, etc."

¶10 Peraza filed a motion to exclude the child's therapist from testifying. Specifically, Peraza argued that the description of the therapist's proposed testimony was vague and failed to provide the defense with adequate information to meet that testimony. He also argued that any testimony regarding "stereotypical" reactions of children who report sexual abuse should be ruled inadmissible because it is unreliable and prejudicial under Utah Rule of Evidence 403. According to Peraza, "[t]he behaviors of children that claim to have been sexually abused—not those whose claims are actually proven or substantiated independently—is not susceptible to quantitative analysis where the children's alleged underlying condition of being sexually abused is uncertain."²

¶11 But before the trial court ruled on Peraza's motion to exclude, the State withdrew its notice for the child's therapist. Peraza then served the child's therapist with a Utah subpoena, but she stopped communicating with the defense when asked to appear for trial. The State had intended to question the child's therapist as a defense witness. But as trial neared and Peraza had not filed a notice of expert testimony, the State filed a notice of its intent to call a different expert witness to rebut Peraza's likely defense that the child's testimony should be disbelieved because of her prior recantation and inconsistent statements.

¶12 The State filed this notice thirty-two days before trial. The notice explained that the State planned to call a forensic interviewer from the CJC to testify to "matters of specialized knowledge and experience." The State's notice indicated that the expert witness would testify to, "[t]he methodology and science related to forensic interviewing of suspected child sex abuse victims; science and research regarding child disclosures of sex abuse including identified factors related [to] delayed, partial and gradual disclosures and recantation." The notice also included the expert's contact information, curriculum vitae, and an extensive list of articles she would rely on for her testimony. Peraza did not file a written motion to exclude this expert witness.

¶13 Twelve days before trial, the trial court held a hearing to dispose of a number of outstanding matters. Relevant here, Peraza orally moved for the first time to exclude the forensic interviewer from testifying as an expert witness. Although he had not submitted a written motion for this expert witness, Peraza asked the trial court to apply the motion that he had previously filed regarding the child's therapist. The State then provided the trial court with a hard copy of Peraza's previous motion to exclude.

¶14 During the pretrial hearing, Peraza challenged the adequacy of the State's notice for the forensic interviewer, stating that he "[did not] really know exactly what this expert would be testifying to" and that he did not have access to the listed articles because they required a subscription. He also argued that, assuming the expert witness planned to testify about any "statistical basis" for the nature of the child's disclosures and recantations, such testimony did not meet the threshold requirements of rule 702 and was likely to prejudice the defense because it could bolster the child's credibility.

¶15 In response, the State argued that it intended to call the expert witness only to rebut any argument from Peraza that the child was not credible because her testimony had changed over time and she had recanted the allegations on at least one occasion. It then clarified that the expert witness would testify that children might not "make a full disclosure initially, and that it's a process," but that she would not opine as to whether the child here was being truthful or not.

¶16 In addressing the oral motion, the trial court noted that it "[did not] know what's going to happen, because [it did not] have testimony" and "[did not] know what people are going to say until it actually gets done." In addition, the trial court acknowledged that it was unsure "whether or not [the expert witness was] going to be needed."³ Nevertheless, the court determined that the State's witness "would meet the criteria for being an expert" under rule 702.

¶17 Peraza then argued that he still did not "have a thorough enough written explanation of the expert's proposed testimony, sufficient to give [him] adequate notice to prepare and meet that testimony, especially since [he did not] have ... those studies." The State responded that the expert witness was "available ... to consult with [Peraza] ... [to] answer any questions" and that it was likewise unsure what testimony would be necessary from the expert until it heard the defense's evidence.

¶18 The trial court acknowledged that there was not "a motion ... pending with regard to this particular expert," but that it was "going to deny [the] motion at this point in time." It stated that "[f]or purposes of today, ... [it was] going to deny [Peraza's] motion." But the court noted that it would consider objections and "maybe this lady doesn't come in." The court then restated that "looking at skill, experience, [and] education," the witness met the rule 702 requirements to be qualified to testify as an expert.

¶19 Peraza responded that he understood that the trial court had ruled on his objection and indicated that he would submit a written motion for this specific witness.⁴ The court agreed that "[it would] like to have something there, and especially for [Peraza's] purposes, if something comes of it, [he would] need that for the next level."

¶20 Peraza then asked, "In light of the [court] ... reserving [on] the expert testifying or not," whether he could "get an electronic copy of all the reports that [the expert witness would be] relying on as authority," stating that "[w]ithout having access to...