IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20100835‐CA
)
v. ) FILED
) (October 12, 2012)
Willie Lee Phillips, )
) 2012 UT App 286
Defendant and Appellant. )
‐‐‐‐‐
Third District, Tooele Department, 081300568
The Honorable Stephen L. Henriod
Attorneys: John Pace, Salt Lake City, for Appellant
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges Orme, Thorne, and McHugh.
ORME, Judge:
¶1 Defendant appeals his convictions for aggravated sexual abuse of a child, a first
degree felony, see Utah Code Ann. § 76‐5‐404.1 (2008), and attempted rape of a child, a
first degree felony, see id. § 76‐5‐402.1. Defendant was also convicted of inflicting
serious physical injury on a child, a second degree felony, see id. § 76‐5‐109 (Supp.
2012),1 but does not challenge that conviction. We affirm.
1
Because the provisions in effect at the relevant time do not differ materially from
the statutory provisions now in effect, we cite to the current version of the Utah Code as
a convenience to the reader.
BACKGROUND
¶2 The charges against Defendant stemmed from events involving two children that
occurred in December 2008. We refer to the children as Brother and Sister. At the time
of the incident, Brother was twelve years old and Sister was eleven years old. Brother
and Sister lived in a mobile home with Defendant, their mother (Mother), and two
younger siblings. On the night in question, Mother took the children to a Christmas
party. After the party, she took them home and then left. Defendant was not home at
that time.
¶3 After hearing “banging on the door” a while later, Brother let Defendant in.
Defendant was intoxicated and angry. He asked Brother where Mother was. When
Brother told Defendant that she was at her sister’s house, Defendant “got mad and
pushed [Brother] over the [coffee] table.” Defendant repeatedly assaulted Brother,
while continuing to obsess over Mother’s whereabouts. At some point, Defendant
moved Brother to the kitchen, where he slammed Brother’s head on the counter.
Brother was able to briefly retreat to his own bedroom, but Defendant called him back
out and continued the assault. Defendant lifted Brother up multiple times, repeatedly
slamming him against the back door. At one point, Defendant picked Brother up by his
neck and squeezed until Brother “couldn’t breathe” and felt like his eyes “were . . .
going to pop out of [his] head.” Brother was eventually permitted to return to his
bedroom again, where his two youngest siblings crawled into bed with him. Defendant
then came into Brother’s bedroom; held a lighter up to the children’s faces; said to
Brother, “I know you know where she is”; pulled Brother up by his hair; and hit him in
the face, injuring his left eye.
¶4 During the assault on Brother, Sister tried to call Mother three or four times from
a phone in her bedroom. At the preliminary hearing, Sister testified that the calls went
through but that Mother did not answer. At trial, Sister testified that the phone was not
working. At some point, Defendant told Sister to “go into [his] room and take off [her]
clothes.” Sister testified that she saw Brother when she passed the kitchen to enter
Defendant’s bedroom, where she sat on the bed. Brother, however, testified that he did
not see Sister. Defendant entered the bedroom and pulled off Sister’s clothes “really
hard.” Sister testified that he threw her shirt into a nearby closet and her underwear
and shorts onto the floor near the bed. Defendant hit Sister, and she fell back onto the
bed. He turned off the lights and shut the door,2 then undressed and got into the bed
2
Sister gave conflicting testimony about whether Defendant turned on the
(continued...)
20100835‐CA 2
with Sister. Sister testified at the preliminary hearing that Defendant licked her face
and kissed her chest, but at trial she stated that Defendant licked and kissed her chest.
Defendant then attempted “to put his no‐no square into” Sister’s vagina, but Sister
covered her “no‐no square” with her hands. Sister could feel Defendant’s “hard” penis
“on the back of [her] hands.” Defendant demanded that Sister remove her hands and
“smacked” her when she refused.
¶5 At trial, Sister testified that she then used Defendant’s bathroom. When she
returned from the bathroom, Defendant demanded that she get back in bed. Sister said
that she wanted to go back to her own room, to which Defendant replied, “Okay, sure.
If you want me to f**k you in your room.” Sister replied in the negative, and Defendant
responded, “Good . . . I reckon I’d do it in here.” Defendant then left the room and
returned with a bottle of liquor and a bottle of Sprite. He poured a mouthful of liquor
into Sister’s mouth. At the preliminary hearing, Sister said she then blacked out until
morning. At trial, however, Sister testified that Defendant then “smacked” her, put a
pillow over her face, and again attempted to penetrate her. Sister kept her hands over
her vagina and screamed under the pillow. Defendant removed the pillow and said, “If
you scream again, I’m going to kill you and all of your siblings.” Sister was allowed to
use the bathroom again, and returned to see Defendant holding a sword that usually
hung on the wall. Defendant laughed at Sister’s pleas to be left alone; handed her the
sword; and said, “Kill me.” When Sister refused, Defendant threw the sword against
the wall.
¶6 A while later, Defendant sat on Sister’s side of the bed and “peed on the floor”
where he had discarded Sister’s clothes. Defendant then said, “Fine, if you [don’t] want
to do this, then just fine. . . . Go to bed.” Sister testified that she did not try to leave
Defendant’s room because she “was scared” and “didn’t know what to do.”
¶7 Brother did not hear Defendant yell for Sister to go into Defendant’s bedroom,
nor did he hear her scream. Later that night, however, he heard Defendant say, “I’m a
child molester. I’m nothing but a child molester.”
¶8 Sister awoke in the morning, naked, next to Defendant. She testified that she left
her shorts and underwear because they were wet, and wrapped herself in her shirt to
walk to her bedroom. After she dressed, Sister walked around the trailer park, to a
2
(...continued)
television at that time.
20100835‐CA 3
nearby store, and around the adjacent neighborhood.3 When she returned home, her
siblings were awake. Sister remembered telling Brother about the attempted rape by
Defendant, but Brother did not recall such a conversation. Brother and Sister talked to
Mother on the phone,4 who picked them up a short while later and brought them to a
nearby parking lot, where a police officer met them. Officers searched the mobile home
after the incident, finding it “in disarray.” They found a Sprite bottle and liquor bottle
on the nightstand next to Defendant’s bed. They also found Sister’s orange shorts5 on
Defendant’s bed and her underwear on the floor next to the bed. Officers also
recovered three swords from Defendant’s room.
¶9 Brother was taken to the hospital for treatment of his physical injuries. Sister did
not have any observable injuries and was not taken in for examination. Brother’s
treating physician observed recent bruising on his face, upper chest, left ear, left eye, left
upper arm, right upper arm, collarbone, and both sides of his neck, as well as indicia of
trauma on the whites of his eyes. At trial, photos of Brother’s injuries were admitted
into evidence and the physician testified that Brother’s injuries were consistent with his
description of the assault by Defendant.
ISSUES AND STANDARDS OF REVIEW
¶10 Defendant contends that his trial counsel rendered ineffective assistance in four
respects: first, when she “conceded” Defendant’s guilt to infliction of serious physical
injury on a child but did not enter a guilty plea on behalf of Defendant to that charge;
second, when she did not file a motion to arrest judgment after the jury returned guilty
verdicts on the charges of attempted rape of a child and aggravated sexual abuse of a
child;6 third, when she failed to object to an improper statement made by the State; and
3
Sister either entered the store once (her preliminary hearing testimony) or twice
(her trial testimony).
4
At the preliminary hearing, Sister said that Brother called Mother on the phone,
but at trial her testimony was that Mother called.
5
Sister testified at the preliminary hearing that her shorts were black but at trial
said that they were orange.
6
Counsel had filed a motion for a directed verdict earlier, which was denied.
(continued...)
20100835‐CA 4
fourth, when she did not clarify the number of victims after a misstatement by the
court. These arguments were not preserved in the proceedings below and are raised for
the first time on appeal.
¶11 “[I]n a case such as the one before us, where the ineffective assistance claim is
raised for the first time on direct appeal, we must decide whether defendant was
deprived of the effective assistance of counsel as a matter of law. Despite the
application of a standard normally bereft of deference, appellate review of counsel’s
performance must be highly deferential; otherwise, the ‘distorting effects of hindsight’
would produce too great a temptation for courts to second‐guess trial counsel’s
performance on the basis of an inanimate record.” State v. Tennyson, 850 P.2d 461, 466
(Utah Ct. App. 1993) (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984))
(footnote omitted). To establish ineffective assistance of counsel, Defendant must show
“(1) that counsel’s performance was so deficient as to fall below an objective standard of
reasonableness and (2) that but for counsel’s deficient performance there is a reasonable
probability that the outcome of the trial would have been different.” State v. Smith, 909
P.2d 236, 243 (Utah 1995). For this court to hold that counsel acted in an objectively
deficient manner, we “must be persuaded that there was a lack of any conceivable
tactical basis for counsel’s actions.” State v. Marble, 2007 UT App 82, ¶ 20, 157 P.3d 371
(citation and internal quotation marks omitted).
¶12 Lastly, Defendant claims that the cumulative effect of counsel’s performance at
trial undermines confidence in his convictions for the sexual offenses. “A reviewing
court will reverse a jury verdict under the cumulative error doctrine only if the
cumulative effect of the several errors undermines . . . confidence that a fair trial was
had. If, however, we determine that a defendant’s claims do not constitute errors . . . ,
then it follows that the requirements of the cumulative error doctrine are not met.”
State v. Killpack, 2008 UT 49, ¶ 56, 191 P.3d 17 (first omission in original) (footnote
citation and internal quotation marks omitted).
6
(...continued)
Neither party presented any additional evidence following that ruling.
20100835‐CA 5
ANALYSIS
I. Trial Counsel’s Failure to Enter a Formal Guilty Plea on the Child Abuse Charge
¶13 After jury selection but prior to opening statements, defense counsel stated that
Defendant “has indicated he is going to plead guilty” to one charge. Counsel advised
the court that Defendant was “conceding” the child abuse charge involving Brother.
The court inquired: “[W]hen I read the charge to the jury as part of the preliminary
instructions, I can read that he is pleading guilty to that charge?” Counsel replied, “You
can indicate that he—he’s conceding (inaudible). I don’t know—he hasn’t technically
pleaded guilty yet.” Defense counsel then affirmed that Defendant had “indicated he is
going to plead guilty to that charge.” The court clarified that “if he doesn’t enter his
plea . . . before we start the evidence, then I think the State’s obligated to present
evidence on that point.” The State indicated that it “still intended to present evidence
on [the child abuse charge], out of an abundance of caution.”
¶14 In light of this discussion, it is obvious that defense counsel was aware of the
implications of Defendant conceding but not pleading to the charge. We must,
therefore, consider whether “there was a lack of any conceivable tactical basis for
counsel’s actions.” Marble, 2007 UT App 82, ¶ 20 (citation and internal quotation marks
omitted). We agree with the State that Defendant has not overcome “the strong
presumptions that counsel’s performance fell ‘within the wide range of reasonable
professional assistance’ and that ‘under the circumstances, the challenged action “might
be considered sound trial strategy.”’” Tennyson, 850 P.2d at 465 (quoting Strickland v.
Washington, 466 U.S. 668, 689 (1984) (quoting Michel v. State, 350 U.S. 91, 101 (1955))).
¶15 Defense counsel repeatedly referred to the charge involving Brother throughout
her presentation of Defendant’s case. In her opening statement, she told the jurors that
Defendant “concedes and admits that he beat [Brother]” but implored them to
remember that “physical abuse and sexual abuse are completely different. And while
he beat [Brother], he did not touch [Sister]. He did not sexually assault [Sister]. He did
not attempt to rape her.” At the end of her opening statement, she told the jury that
“despite how angry you’re going to be at the physical injuries that [Defendant] inflicted
upon [Brother], you have to set that passion and that bias aside and evaluate the
testimony and determine if that testimony, in regards to sex abuse[,] is credible.”
¶16 Throughout the trial, defense counsel used Brother’s testimony to point out the
inconsistencies in Sister’s testimony. For example, defense counsel noted that Brother
did not hear Defendant order Sister into his bedroom, did not hear any commotion from
20100835‐CA 6
Defendant’s bedroom, and did not recall having a conversation with Sister in which she
told Brother that Defendant had attempted to rape her. Defense counsel also
emphasized the improbability that, given the extensive injuries inflicted on Brother by
Defendant, Sister was able to so easily thwart a sexual attack by Defendant without
suffering any visible injuries. Counsel reminded the jury that “[w]e saw what a slap
did to her brother from [Defendant]. We saw the physical evidence from a slap and
from a beating from [Defendant]. Nothing. Not a mark, nothing on her. Reasonable
doubt as to whether her story is true.”
¶17 We agree with the State that defense counsel may well have strategically allowed
the State to present evidence related to the child abuse charge. “[D]efense tactics,
whereby counsel admits guilt on a lesser charge in the hope that the jury would then be
more receptive to the claim that the defendant was innocent of the far more serious
offense and acquit him thereof, is a perfectly acceptable strategy which should not be
second guess[ed] by the courts.” People v. Allen, 727 N.Y.S.2d 331, 331–32 (App. Div.
2001) (second alteration in original) (citation and internal quotation marks omitted).
¶18 In the case at hand, it is quite possible that defense counsel reasonably believed
that allowing extensive evidence to be admitted in support of the unchallenged child
abuse charge would benefit Defendant because of the contrast to the comparative
dearth of evidence supporting the charges involving Sister. It also allowed the jurors to
view Defendant as having taken responsibility for actions that he acknowledged were
wrongful, giving them the opportunity to convict him for his admitted misdeeds, while
lending credibility to his resistance to charges that he denied and that were not as
strongly supported. Defendant argues on appeal that “the few helpful tidbits from
[Brother]’s testimony, i.e., that which defense counsel used to discredit . . . [S]ister’s
inconsistent testimony, would still have been available and admissible” had Defendant
pled guilty before trial, while the guilty plea would have prevented the admission of all
the other evidence concerning Defendant’s brutality to Brother.
¶19 This view overlooks the important role that the supporting evidence played in
discrediting Sister’s testimony. The extent of Brother’s injuries, their graphic portrayal
through photographic evidence, and the testimony of the physician were utilized by
Defendant’s trial counsel to show the unlikelihood that Sister would have been able to
ward off a sexual assault by Defendant—and particularly that she could have done so
without sustaining serious injury. It is therefore entirely plausible that “a fully
informed attorney could have concluded that admitting the [evidence] was to
[Defendant]’s strategic advantage.” Bullock v. Carver, 297 F.3d 1036, 1053 (10th Cir.
2002).
20100835‐CA 7
¶20 In any event, even if counsel’s decision were to be viewed as deficient, we are not
convinced that Defendant was prejudiced. It is entirely possible that much of the
evidence related to the abuse of Brother would have still been admitted even if
Defendant had pled guilty before trial. Defendant argues that most of the evidence
related to Brother would have been excluded under Utah Rules of Evidence 401, 402,
403, and 404(b) as irrelevant or unduly prejudicial. The State counters that much of the
evidence would have been admissible as evidence of conduct “that was the beginning
of a string of events all closely related in time that ended with the” charges in question
and is therefore admissible as “part of a single criminal episode.” State v. Johnson, 784
P.2d 1135, 1141 (Utah 1989). Given the proximity in time of the events and the general
arc of Defendant’s anger and abusive actions that night, Defendant has not convinced
us that most—if not all—of the evidence related to Brother would have been
inadmissible in a trial of only the charges related to Sister. Cf. State v. Burke, 2011 UT
App 168, ¶ 22, 256 P.3d 1102 (considering whether evidence of another crime would be
admissible in a separate trial and noting that “[w]hen the offenses here are considered
together and in conjunction with the surrounding facts and circumstances of the night,
an escalating pattern of behavior becomes apparent”). See also State v. Bates, 784 P.2d
1126, 1127 (Utah 1989) (stating that rule 404(b) does not proscribe the introduction of
evidence “elicited to describe the state of mind of the victim”). Thus, even if we
concluded that defense counsel’s performance was objectively deficient, Defendant’s
claim of ineffective assistance would fail because Defendant has not demonstrated that
he was prejudiced by defense counsel’s decision to not have Defendant plead guilty
before trial to the charges involving Brother. See Strickland v. Washington, 466 U.S. 668,
694 (1984) (“The defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.”).
II. Trial Counsel’s Failure to File a Motion to Arrest Judgment
¶21 Next, Defendant claims that his trial counsel was ineffective for not filing a
motion to arrest judgment on the sexual assault and rape charges under the inherent
improbability doctrine enunciated in State v. Robbins, 2009 UT 23, 210 P.3d 288.
¶22 In State v. Ruiz, 2012 UT App 42, 272 P.3d 185 (mem.), we explained that the
Robbins standard is quite stringent:
We will not disturb a jury’s verdict on a theory of “inherent
improbability” unless there are “(1) . . . material
inconsistencies in the testimony and (2) . . . no other
20100835‐CA 8
circumstantial or direct evidence of the defendant’s guilt.”
While “the definition of inherently improbable must include
circumstances where a witness’s testimony is incredibly
dubious and, as such, apparently false,” “[t]he existence of
any additional evidence supporting the verdict prevents the
judge from reconsidering the witness’s credibility.” “We
stress . . . that the court may choose to exercise its discretion
to disregard inconsistent witness testimony only when the
court is convinced that the credibility of the witness is so
weak that no reasonable jury could find the defendant guilty
beyond a reasonable doubt.”
Id. ¶ 3 (quoting Robbins, 2009 UT 23, ¶¶ 18–19).
Accordingly, when considering a motion to arrest judgment,
a trial judge may reevaluate the jury’s determination of
testimony credibility in cases where a sole witness presents
inherently contradictory testimony that is equivocal or the
result of coercion, and there is a complete lack of
circumstantial evidence of guilt.
Robbins, 2009 UT 23, ¶ 18 (citation and internal quotation marks omitted).
¶23 We also note that defense counsel had already challenged the sufficiency of the
State’s evidence and suggested its inherent improbability through an earlier motion for
a directed verdict, which had been denied. Thus, defense counsel may well have
concluded that a motion to arrest judgment on essentially the same theory would also
be unsuccessful. See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile
objections does not constitute ineffective assistance of counsel.”).
¶24 In any event, the inconsistencies in Sister’s testimony do not rise to a level that
“no reasonable jury could find the defendant guilty beyond a reasonable doubt.”
Robbins, 2009 UT 23, ¶ 18. Contrary to Defendant’s assertion, there was circumstantial
evidence to support Sister’s version of events. Shortly after the assault took place,
police recovered Sister’s shorts and underwear near Defendant’s bed, a location
consistent with Sister’s account. While not tested for urine, they were wet to the touch.
Additionally, a bottle of liquor and a bottle of Sprite were recovered from the
nightstand by Defendant’s bed, a fact also consistent with Sister’s testimony. Lastly, the
State elicited evidence that Brother heard Defendant say, “I’m a child molester. I’m
20100835‐CA 9
nothing but a child molester.” Considering these facts, we reject Defendant’s claim that
there was a complete lack of supporting circumstantial evidence.7 Accordingly, we
reject Defendant’s ineffective assistance of counsel claim premised on defense counsel’s
failure to file a motion to arrest judgment.
III. Trial Counsel’s Failure to Object to the Prosecutor’s Inappropriate Comments at
Sentencing
¶25 Defendant claims that his counsel is to blame for the trial court’s rejection of
Adult Probation & Parole’s “recommendation for concurrent sentences, choosing
instead to run all three consecutively in what the parties acknowledge amounts to a life
sentence without possibility of parole.” Defendant claims that defense counsel should
have objected when the State referenced, as grounds for consecutive sentences,
Defendant’s exercise of his Fifth and Sixth Amendment rights to plead not guilty and
request a jury trial. The prosecutor stated at sentencing:
That was horrifying conduct. These kids were terrorized. I
know he’s exercising his constitutional rights to have a trial
and to do this. You know what, they had to appear. There
are other people that when they’ve been faced with charges
like this, they have owned up to their conduct and they’ve
lessened the impact to the victims. There’s been no attempt
by the defendant to lessen the impact to his victims
whatsoever. At the time of sentencing that is something that
normally the State would raise as a reason to do something
different.
Despite the arguable inappropriateness of this statement, the trial court is presumed to
have disregarded the prosecutor’s commentary. See Illinois v. Myatt, 384 N.E.2d 85, 88
7
We are similarly unconvinced that Sister’s testimony was so contradictory and
equivocal as to suggest it was inherently improbable. At the time of the attack, Sister
was eleven years old. We have recognized that “‘it is not unusual that a child’s
testimony be somewhat inconsistent, especially in sexual abuse cases.’” State v. Marks,
2011 UT App 262, ¶ 78, 262 P.3d 13 (quoting State v. Virgin, 2006 UT 29, ¶¶ 37–38, 137
P.3d 787), cert. denied, 272 P.3d 168 (Utah 2012). In particular, none of the discrepancies
between Sister’s preliminary hearing testimony and her trial testimony were so
substantial as to render her testimony “incredibly dubious.” See State v. Robbins, 2009
UT 23, ¶ 18, 210 P.3d 288.
20100835‐CA 10
(Ill. Ct. App. 1978) (“[I]n a bench trial, where a prosecutor’s remarks are in error, the
judge is presumed to have disregarded them; there will not be a reversal unless it
affirmatively appears that the court was misled or improperly influenced by such
remarks.”) (cited in Pitt v. Taron, 2009 UT App 113, ¶ 4, 210 P.3d 962 (mem.)). Here,
nothing in the court’s ruling suggests that the court imposed consecutive sentences as a
result of this statement by the prosecutor. Therefore, Defendant has not demonstrated
that “but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694.
IV. Trial Counsel’s Failure to Clarify the Court’s Reference at Sentencing to
the Number of Victims
¶26 Defendant also claims that trial counsel was ineffective for failing to object to the
court’s statement that “[b]ecause they were all separate victims and because of the
horribly egregious behavior, all three of these [sentences] will run consecutively.”
However, in context, it can be deduced that the judge did not mistakenly believe that
the three criminal charges involved three separate victims. The sentencing judge had
presided over the trial and was aware that Brother and Sister were the direct victims of
Defendant, with one charge concerning Brother and two concerning Sister.
¶27 The testimony also revealed that the two younger siblings were present
throughout the violent episode and were also affected by Defendant’s conduct. The
prosecutor had argued, “This was a night that was a terrifying night for both [Brother
and Sister], as well as their siblings who observed some of the conduct.” Thus, it
appears likely that the court had the two younger siblings in mind when making the
challenged reference about “separate victims.” See Utah Code Ann. § 76‐3‐401(2) (2008)
(stating that in determining whether sentences should run consecutively, “the court
shall consider the gravity and circumstances of the offenses, the number of victims, and
the history, character, and rehabilitative needs of the defendant”). In any event,
Defendant fails to demonstrate that, had trial counsel objected, there is a “reasonable
probability . . . that the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. Therefore, this challenge also fails.
20100835‐CA 11
CONCLUSION
¶28 For the foregoing reasons, we are not persuaded that Defendant’s trial counsel
provided ineffective assistance.8 Defendant’s conviction and sentence are affirmed.
____________________________________
Gregory K. Orme, Judge
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¶29 WE CONCUR:
____________________________________
William A. Thorne Jr., Judge
____________________________________
Carolyn B. McHugh, Judge
8
As previously noted, Defendant also claims that cumulative error warrants
reversal in this case.
Under the cumulative error doctrine, we will reverse only if
the cumulative effect of the several errors undermines our
confidence . . . that a fair trial was had. If the claims are
found on appeal to not constitute error, or the errors are
found to be so minor as to result in no harm, the doctrine
will not be applied.
State v. Gonzales, 2005 UT 72, ¶ 74, 125 P.3d 878 (omission in original) (citations and
internal quotation marks omitted). Because we determine each of Defendant’s claims to
be without merit, the cumulative error doctrine does not apply.
20100835‐CA 12