2014 UT App 249

_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF N.A.D., A PERSON UNDER

EIGHTEEN YEARS OF AGE.

N.A.D.,

Appellant,

v.

STATE OF UTAH,

 Appellee.

Memorandum Decision

No. 20130669-CA

Filed October 23, 2014

Fourth District Juvenile Court, Orem Department

The Honorable Mary T. Noonan

No. 1071590

Neil D. Skousen, Attorney for Appellant

Sean D. Reyes and Ryan D. Tenney, Attorneys

for Appellee

JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in

which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN

concurred.

DAVIS, Judge:

¶1 Fourteen-year-old N.A.D. was accused of raping and

threatening to kill seven-year-old K.W. while N.A.D. and his sister

were sleeping at K.W.’s home. N.A.D. was subsequently

adjudicated delinquent for rape of a child and threatening the life

of a child. We affirm.
In re N.A.D.

¶2 N.A.D. first argues that he was denied due process because

the same judge who ruled on his motion to suppress presided over

his trial. Because this issue was not preserved below, he raises it on

grounds of plain error and ineffective assistance of counsel.

¶3 In order to prevail on grounds of plain error, an appellant

must show that “(i) [a]n 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.” State v. Dunn, 850 P.2d 1201, 1208 (Utah

1993). “An error is obvious only if the law governing the error was

clear at the time the alleged error was made.” State v. Maestas, 2012

UT 46, ¶ 37, 299 P.3d 892 (citation and internal quotation marks

omitted).

¶4 N.A.D. asserts that the juvenile court judge could not

impartially hear his case because the judge had previously heard

evidence of his confession when she considered and granted his

motion to suppress. He therefore maintains that it was plain error

for the judge not to recuse herself from the trial. However, N.A.D.

identifies no settled law supporting his argument. Instead, N.A.D.

points to case law indicating that a defendant whose motion to

suppress was denied before trial need not renew his motion at a

bench trial in order to preserve the suppression issue for appeal

where the same judge who heard the motion presides over the trial.

See, e.g., State v. Griffin, 754 P.2d 965, 968 (Utah Ct. App. 1988). He

then argues that because judges are presumed to be aware of

pretrial issues they have ruled on for preservation purposes, they

should also be presumed to have been influenced by them in their

rulings at trial.

¶5 Even if we were inclined to agree with N.A.D., the inference

he asks us to draw from Griffin and similar cases does not

constitute settled law sufficient to support a plain error claim.

Indeed, not only is N.A.D.’s position not supported by settled law,

it is actually contradicted by settled law. When a jury hears a case,

the court is required to conduct the trial “so that inadmissible

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In re N.A.D.

evidence is not suggested to the jury by any means.” Utah R. Evid.

103(d). However, “judges in bench trials are presumed to be less

likely than juries to be prejudiced by [inadmissible] evidence.” State

v. Adams, 2011 UT App 163, ¶ 12, 257 P.3d 470; see also State v.

Burke, 129 P.2d 560, 562 (Utah 1942) (“The court, sitting without a

jury, is presumed to have disregarded any irrelevant, immaterial

or other evidence not pertinent to the issue.”). We have therefore

“recognize[d] a presumption that the court considers only

admissible evidence and disregards any inadmissible evidence.”

Adams, 2011 UT App 163, ¶ 12; see also 46 Am. Jur. 2d Judges § 153

(2006) (“A judge is not disqualified to sit in a trial on the merits by

having heard and decided a preliminary proceeding in the same

cause on the basis that a judge is uniquely capable of distinguishing

the issues and of making an objective determination based upon

appropriate legal criteria, despite the awareness of facts which

cannot properly be relied upon in making the decision.” (footnotes

omitted)). To rebut this presumption, the defendant must

demonstrate that “the inadmissible evidence actually factored into

the trial court’s determination of the defendant’s guilt.” Adams,

2011 UT App 163, ¶ 14. N.A.D. has pointed to nothing in the

juvenile court’s ruling suggesting that the judge relied on his

confession apart from his speculation that the judge would not

have found the State’s evidence credible had she not known about

the confession. But speculation is not enough, and there is no

evidentiary basis on whichto conclude that the juvenile court judge

should have sua sponte recused herself from conducting the bench

trial.

¶6 For the same reasons, N.A.D. cannot prevail on his

ineffective assistance of counsel claim. In order to prevail on

grounds of ineffective assistance, a defendant must demonstrate,

first, “that counsel’s performance was deficient, in that it fell below

an objective standard of reasonable professional judgment” and,

second, “that counsel’s deficient performance wasprejudicial—i.e.,

that it affected the outcome of the case.” State v. Litherland, 2000 UT

76, ¶ 19, 12 P.3d 92 (citing Strickland v. Washington, 466 U.S. 668,

687–88 (1984)). In demonstrating deficient performance, “a

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In re N.A.D.

defendant bears the burden of demonstrating why, on the basis of

the law in effect at the time of trial, his or her trial counsel’s

performance was deficient.” Dunn, 850 P.2d at 1228; see also State v.

Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile

objections does not constitute ineffective assistance of counsel.”).

Because there was no basis in existing law for N.A.D.’s counsel to

have requested that the juvenile court judge recuse herself, N.A.D.

cannot show that his counsel performed deficiently.

¶7 N.A.D. next argues that his trial counsel was ineffective for

failing to call an expert witness to testify regarding the effects of

N.A.D.’s medication. N.A.D. relies on our supreme court’s ruling

in State v. Hales, 2007 UT 14, 152 P.3d 321, which determined that

the failure of a defendant’s attorneys “to conduct an adequate

investigation” by enlisting an expert to review CT scans vital to the

State’s case constituted ineffective assistance. Id. ¶ 93. Counsel in

Hales failed to consult an expert until the morning of trial, and the

expert consulted was not qualified to testify. Id. ¶ 29. When Hales

moved for a new trial based on ineffective assistance, he provided

an affidavit from a qualified expert interpreting the CT scans in a

manner that had the potential to exonerate Hales. Id.¶ 31. Based on

this information, the supreme court concluded that “there was a

‘reasonable probability’ that, but for the errors, Hales would not

have been convicted.” Id. ¶ 92.

¶8 Unlike Hales, N.A.D. has not shown either that his counsel

failed to adequately investigate the effect of his medication or that

an expert would have provided helpful testimony if called as a

witness. The record indicates that N.A.D.’s counsel had enlisted

“Wasatch Mental Health Professionals” as prospective witnesses,

although those witnesses were not ultimately identified or called

to testify. This belies N.A.D.’s claim that his counsel did not consult

with experts regarding his health issues and medication. But even

if counsel’s investigation was inadequate, the record does not

indicate what an expert would have testified to if called. N.A.D.

points to his mother’s testimony that he was taking medication,

that he could not sleep without it, and that it was very difficult to

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

wake him after he had taken it. But unlike Hales, who provided an

affidavit by an expert indicating what the expert would have

testified to if called at trial, N.A.D. has provided us with nothing to

indicate that an expert would have corroborated or added to his

mother’s testimony, and the record does not even identify the

precise medication N.A.D. was taking. Cf. State v. Charles, 2011 UT

App 291, ¶ 32, 263 P.3d 469 (rejecting an ineffective assistance claim

where a defendant asserted on appeal that an expert would have

providedcorroborating testimony helpfulto his case but “provided

no evidence to support this claim”). Therefore, we can only

speculate as to what an expert would have testified to if called by

N.A.D.’s counsel, and “proof of counsel’s ineffectiveness must be

a demonstrable reality, not mere speculation.” See State v. Tyler, 850

P.2d 1250, 1254 (Utah 1993). Because N.A.D. has failed to

demonstrate that he was prejudiced by his counsel’s failure to call

an expert to testify regarding the effects of his medication, we reject

his ineffective assistance claim on this issue.

¶9 Finally, N.A.D. argues that the evidence was insufficient to

support the juvenile court’s adjudication. “When reviewing a

bench trial for sufficiency of the evidence we must sustain the trial

court’s judgment unless it is against the clear weight of the

evidence, orif [we] otherwise reach[] a definite and firm conviction

that a mistake has been made.” In re D.V., 2011 UT App 241, ¶ 6,

265 P.3d803 (alterations in original) (citation and internal quotation

marks omitted).

¶10 N.A.D. acknowledges that K.W.’s testimony supports the

juvenile court’s adjudication but argues that this testimony was

insufficient in light of testimony from N.A.D.’s mother that his

medication would have caused him to sleep deeply all night and

from N.A.D.’s ten-year-old sister that K.W., rather than N.A.D.,

was the aggressor. “However, the juvenile courts are given wide

latitude based upon not only the court’s opportunity to judge

credibility firsthand, but also based on the juvenile court judges’

special training, experience and interest in this field, and devoted

attention to such matters.” In re C.C.R., 2011 UT App 228, ¶ 16, 257

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

P.3d 1106 (citation and internal quotation marks omitted). The

juvenile court found K.W.’s testimony credible and explained the

reasons for this finding, including that K.W.’s description of the

event was “compelling”; that she “listened carefully,” “maintained

eye contact,” “sat tall,” and “was direct in responding to questions”

at trial; and that she “asked when she was confused,” “didn’t

squirm,” and “didn’t shy from the questions or otherwise indicate

that she was confused or equivocating.” On the other hand, the

juvenile court found that N.A.D.’s sister was not a credible witness

because she “was clear that she really wanted [N.A.D.] not to be in

trouble,” she could not describe the events she testified to in detail,

aspects of her testimony were inconsistent or illogical, and her

demeanor suggested that she was “uncomfortable . . . with her own

responses” to questions at trial. The juvenile court also observed

that despite the testimony regarding the effects of N.A.D.’s

medication, no witness definitively testified that N.A.D. had

actually taken the medication or that he was actually asleep at the

time of the events in question. Based on this assessment of the

evidence, the juvenile court found that the State had proven the

allegations beyond a reasonable doubt. The juvenile court’s

findings are entitled to deference, and we are not convinced that

they were against the clear weight of the evidence.

¶11 In sum, Utah law does not require a judge who has gained

knowledge of inadmissible evidence by presiding over pretrial

matters to recuse herself from conducting a bench trial. Thus,

N.A.D.’s plain error and ineffective assistance of counsel claims

relating to this issue fail. Furthermore, N.A.D. has failed to

demonstrate that he was prejudiced by his counsel’s decision not

to call an expert witness to testify regarding his medication, and

therefore, his ineffective assistance claim relating to this issue

likewise fails. Finally, the evidence was sufficient to support the

juvenile court’s delinquency adjudication. We therefore affirm.

20130669-CA 6 2014 UT App 249