2014 UT App 249

_________________________________________________________



### T H E 

### U TA H 

### C O U RT O F 

### A P P E A L S

S TAT E OF U TAH

, I N TH E I NT E RE S T

OF N.A.D., A

P E RS O N

UND E R E I G HT E E N

YE ARSOF AG E

. N.A.D., Appellant,

v. S TAT E OF U TAH

, Appellee.

Memor andumDeci si on No. 20130669-CA Filed October 23, 2014

Four th Di stric t Juveni le Court, Or em Department The Honorable Mar y T. Noonan

No. 1071590

Nei l D. Skousen, Att or ney for Appellant Sean D. Reyes and Ryan D. Tenney, Att or neys

for Appellee

J UD G E J AM E S Z. D AVI Sauthore d thi s Memorandum Dec i si on, i n whi ch J UD G E S G RE G OR Y K. O R M Eand M I C H E L E M. C H RI S T I AN S E N
concu rr ed.

DAVIS, Judge:

¶1 Four teen-year -o ld N.A.D. was accu sed of rapin g and threat ening to kill seven-year-o ld K.W. whi le N.A.D. and hi s si ster

were sleeping at K.W.’s home. N.A.D. was sub sequently adjudi cated delinquent for rape of a chi ld and threat ening the li fe of a chi ld. We affi rm.In re N.A.D.

¶2 N.A.D. fi rst arg ues that he was deni ed due process becau se the same judge who ruled on hi s motion to supp ress presi ded ov er hi s tr i al. Becaus e thi s i ssu e was not preserv ed below, he rais es i t on gr ounds of plain err or and ineffec tive ass i stance of coun sel.

¶3 In or der to prev ai l on gr ounds of plain err or, an a p p ellant

mus t show that “(i ) [a]n err or exis ts; (i i ) the err or should have been obvious to the tr i al court; and (i i i ) the err or i s harmful, i .e., absent the err or , there i s a r e a so nable li kelih ood of a more favor able outcome for the appellant.” State v. Dun n , 850 P .2d 1201, 1208 (Utah 1993). “An err or i s obvious only i f the law gov ernin g the err or was clear at the tim e the alleged err or was made.” State v. Maestas , 2012 UT 46, ¶ 37, 299 P.3d 892 (ci tation and internal quotat i on marks omi tte d).

¶4 N

. A

. D. asserts that the juve ni le court judge could not i mpartially hear hi s case becau se the judge had prev i ously heard evidenc e of hi s confess i on when she consid e r e d and gr anted hi s motion to supp ress. He there fore maintai ns that i t was plain err or for the judge not to recuse herself from the tr i al. However, N.A.D. i denti fi es no settled law supp or tin g hi s arg ument. Instead, N.A.D. poin ts to case law indi cating that a defendant whose motion to supp ress was deni ed before tr i al need not renew hi s motion at a bench tr i al in or der to preserv e the supp ressi on i ssu e fo r appeal where the same judge who heard the motion presi des ov er the tr i al. See, e.g. , State v. Griffin , 754 P.2d 965, 968 (Utah Ct. App. 1988). He then arg ues that becau se judges are presumed to be aware of pret rial i ssu es they have ruled on for preserv ation purposes, they should also be presumed to have been influ enced by them in their ruli ngs at tr i al.

¶5 Even i f we were inclined to agr ee wi th N.A.D., the inference he asks us t o d r a w from Griffin and si mi lar cases does not consti tute settled law suffi ci e nt t o supp or t a plain err or clai m. Indeed, not only i s N.A.D.’s posi tion not supp or ted by settled law, i t i s actually contradicted by settled law. W he n a jury hears a case, the court i s required t o co nd uct the tr i al “so that inadmi ssi ble

20130669-CA 2 2014 UT App 249In re N.A.D.

evidenc e i s not suggested to the jury by any means.” Utah R. Evid. 103(d). However , “judges in bench tr i als are presumed to be less l i ke l y th a n juries to be prej udi ced by [inadmi ssi ble] evidenc e.” Sta te
v. Adams , 2 0 1 1 UT App 163, ¶ 12, 257 P.3d 470; see also State v. Burke, 129 P.2d 560, 562 (Utah 1942) ( “The court, si tting wi thout a jury , i s presumed to hav e d i sregar ded any i rr elevant, i mmaterial

or other e videnc e not pert inent to the i ssu e.”). We have there fore “recog ni ze[d] a p r esum ption that the court consi ders only admi ssi ble evidenc e and di sregar ds any inadmi ssi ble evidenc e.” Adams , 2011 UT App 163, ¶ 12; see also 46 Am. Jur. 2d Judges § 153 (2006) (“A judge i s not di squali fi ed to si t in a tr i al on the merits by havin g heard and deci ded a prelim inary proceeding in the same
caus e on the basi s that a judge i s uni quely capabl e of di stingui shing the iss ue s and of maki ng an objective deter minati on based upon appropr i ate lega l cr it eria, despi te the awareness of facts whi ch cannot proper ly be relied upon in maki ng the deci si on.” (footnot es omi tte d)). To rebut thi s presumpti on, the de fe ndant mus t demonstrate that “the inadmi ssi ble evidenc e actually factored into the tr i al court’s deter minati on of the d e fe ndant ’s gui lt.” Adams , 2 011 UT App 163, ¶ 14. N.A.D. has poin ted to noth ing in t he j uv e nile court’s ruli ng suggesti ng that the judge relied on hi s confess i on apart from his speculati on that the judge would not have found the St ate’s evidenc e credible had she not known about the confess i on. But specu lation i s not enoug h, a nd there i s no evidenti ary basi s on whi ch to c on c l u d e that the juve ni le court judge should have sua sponte recused herself from conduc tin g the bench tr i al.

¶6 For the same reasons, N.A.D. cannot prev ai l on his ineffec tive a ss istance of couns el clai m. In or der to prev ai l on gr ounds of ineffec tive assi stance, a defendant mus t demonstrate , fi rst, “that couns el’s perfor manc e was defi ci ent, in that i t fell below

an objective standard of reasonable professi onal judgment” and, second, “that couns el’s defi ci ent pe rfor m a n c e w a s p re judi ci al—i .e., that i t affec ted the outcome of the case.” State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (ci tin g Strickland v. Washington , 466 U.S. 668, 687–88 (1984))

. In demonstrating defi ci ent perfor manc e, “a

20130669-CA 3 2014 UT App 249In re N.A.D.

defendant bears the burden of demonstrating why, on the basi s of the law in effect at the tim e of tr i al, hi s or her tr i al co uns el’s perfor manc e was defi ci ent.” Dun n , 850 P.2d at 1228; see also State v. Kelle y, 2000 UT 41, ¶ 26 , 1 P. 3 d 5 46 (“Fai lure to rais e futi le objections does not consti tute ineffec tive assi stance of coun se l.”). Becaus e ther e was n o b asi s in exis tin g law for N.A.D.’s couns el to have requested that the juve ni le court judge recuse herself, N.A.D. cannot show that hi s coun sel performed defi ci ently.

¶7 N.A.D. next arg ues that hi s tr i al couns el was ineffec tive for fa ilin g t o call an exper t wi tness to testif y reg ardin g the effects o f N.A.D.’s medi cati on. N.A.D. r eli es o n o ur supreme court’s rulin g in State v. Hales , 2 0 0 7 U T 14, 152 P.3d 321, whi ch dete rmi ned t hat th e failure of a defendant’s atto rneys “to conduc t an adequate investigati on” by enli sting an exper t to rev i ew CT scan s vital to the St ate’s case consti tuted ineffec tive assi stance. Id. ¶ 9 3

. Counsel in Hales fai led to consu lt an exper t unti l the mornin g of tr i al, and the exper t c onsulted was not quali fi ed to testif y. Id. ¶ 29. When Hales moved for a new tr i al based on ineffec tive assi stance, he prov i ded an affi davit fr om a quali fi ed exper t interpr eting t he CT scans in a
manner that had the potent i al to exo nerate Hales. Id. ¶ 31. Based on thi s informat io n, the supreme court conclu ded that “there was a ‘reasonable probabi li ty’ that, but for the err or s, Hales would not have been convic ted.” Id. ¶ 92.

¶8 Unli ke Hales, N.A.D. has not shown ei ther that hi s couns el fai led to adequately investigate the effect of hi s medi cati on or that

an exper t would have prov i de d he l p ful testim ony i f called as a wi tness. The recor d indi cates that N.A.D.’s couns el had enli sted “Wasatch Mental Health Professi onals” as pro spective wi tnesses, although those wi tnesses wer e not ulti mately i denti fi ed or called to testif y. Thi s beli es N.A.D.’s clai m that hi s couns el di d not consu lt wi th exper ts reg ardin g hi s health i ssu es and medi cati on. But even i f couns el’s investigati on was inadequate, the recor d does not indi cate what an exper t would have testifi e d t o i f called. N.A.D. p o int s to hi s mother ’s testim ony that he was taking medi cati on, that he could not sleep wi thout it, and that it was ver y diffi cult to

20130669-CA 4 2014 UT App 249In re N.A.D.

wake hi m after he had take n i t. But unli ke Hales, who prov i ded an affi davit by an exper t indi cating what the exper t would have testifi ed to i f called at tr i al, N.A.D. has prov i ded us wi th nothin g to indi cate that an exper t would have corr obor a t e d o r added to hi s mother ’s t esti mony, and the recor d does not even i denti fy the preci se medi cati on N.A.D. was taking. Cf. State v. Charles , 2011 UT App 291, ¶ 32, 263 P.3d 469 (rej ecti ng an ineffec tive assi stance clai m wh e r e a defendant assert ed on appeal t hat an e xper t would have prov i ded c or rob or a tin g te s tim ony h e lpful to hi s case but “prov i ded

no e v i dence to supp or t thi s clai m”). Therefore , we can onl y specu late as to what an ex pert would have testi fi ed to if c alled by N.A.D.’s counsel, and “proo f o f counsel’s ineffec tiveness mus t be

a demonstrable reality, not mere specu lation.” See State v. Tyler, 850 P.2d 1250, 1254 (Uta h 1993). Becaus e N.A.D. has fai led to demonstrate that he was prej udi ced by hi s couns el’s fai lure to call

an exper t to testif

y reg ardin g the effects of hi s medi cati on, we rej ect hi s ineffec tive ass i stance c lai m on thi s i ssu e.
¶9 Fin ally, N.A.D. arg ues that the evidenc e was insu ffi ci ent to supp or t the juve ni le court’s adjudi cati on. “When rev i ewing a bench tr i al for suffi ci ency of the evidenc e we mus t sus tain the tr i al court’s judgment unles s i t i s again st the clear wei ght of the evidenc e, or i f [we] other wi se reach[] a defini te and fi rm convic tion that a mi stake has been made.” In re D.V. , 2011 UT App 241, ¶ 6, 265 P

. 3 d 8 0 3 ( a l te ra ti ons in or i gin al) (ci tation and internal quotat i on marks omitted).

¶10 N.A.D. acknowledges that K.W.’s testim ony supp or ts the juve ni le court’s adjudi cati on but a r g ue s that thi s testim ony was insu ffi ci ent in li ght of testim ony from N

. A.D.’s mother that hi s medi cati on would have caus ed hi m to sleep deeply all ni ght and from N.A.D.’s ten-year -old si ster that K.W., rat her t ha n N.A.D.,

was the aggr essor. “However , t he juve ni le courts are given wi de latitude based upon not only the court’s oppor tuni ty to jud g e credibi li ty fi rsthand, but also ba se d on the juve ni le court judges’ speci al tr aining, exper i ence and intere st in thi s fi eld, and dev ote d atte nti on to such matter s.” In re C.C.R

. , 2011 UT App 228, ¶ 16, 257

20130669-CA 5 2014 UT App 249In re N.A.D.

P.3d 1106 (ci tation and internal quotat i on marks omit t e d ). The juve ni le court found K.W.’s testimony credible and explained the

r e asons for thi s finding, inclu ding that K.W.’s descri ption o f t he event was “compelling”; that she “li stened carefully,” “maintai ned eye contact,” “sat ta l l, ” and “was di rect in respondi ng to questi ons” at tr i al; and that she “ a sk e d when she was confus ed,” “di dn’t squi rm,” and “di dn’t shy from the questi ons or other wi se indi cate t ha t she was confus ed or equi vo cating.” On the other hand, t he juve ni le court found that N.A.D.’s si ster was not a credible wi tness becau se she “was clear that she really wanted [N.A.D.] not to be in tr ouble,” she could not describe the event s she testifi ed to in detail, aspects of her testim ony were inconsi stent or i llogic a l , a nd her demeanor suggested that she was “unc omfort able

. . . wi th her own responses” to que st i ons at tr i al. The juve ni le court also observe d that despi te t he testim ony reg ardin g the effects of N.A.D.’s medi cati on, no wi tne ss d e fini tively testifi ed that N.A.D. had actually take n the medi cati on or that he was actually asleep at the tim e of the event s in questi on

. B a sed on thi s asses sment of the evidenc e, the juve ni le court foun d t ha t the St ate had prov en the allegations beyond a reasonable doubt. The juve ni le court’s findings are entitled to deference, a nd we are not convin ced that they wer e agains t the clear weight of the ev i dence.

¶11 In sum, Utah lawdoes not r equi re a j udge who has gained knowle d ge of inadmi ssi ble evidenc e by presi ding ov er pret rial matter s to recuse herself from conduc tin g a bench tr i a l

. Thus, N.A.D.’s plain err or and ineffec tive assi stance of couns el clai ms relat ing to thi s i ssu e fai l. Furt hermor e, N.A.D. has fai led to demonstrate that he was prej ud ice d by hi s counsel’s deci si on not to call an exper t wi tness to testif y reg ardin g his medi cati on, and there fore, hi s ineffec tive assi stance clai m relat ing to thi s i ssu e li kewi se fai ls. Fin ally, t he evidenc e was suffi ci ent to supp or t the juve ni le court’s delin quency adjudi cati on. We ther efore affi rm.

20130669-CA 6 2014 UT App 249