State v. Christensen

2016 UT App 225

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JACOB LAWRENCE CHRISTENSEN,
Appellant.

Opinion
No. 20140720-CA
Filed November 10, 2016

First District Court, Logan Department
The Honorable Kevin K. Allen
No. 121100279

David M. Perry, Attorney for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.

TOOMEY, Judge:

¶1 Defendant Jacob Lawrence Christensen appeals his
conviction for object rape, a first degree felony. He argues there
were multiple instances of plain error and ineffective assistance
of counsel during his trial. We affirm.
 State v. Christensen

BACKGROUND1

¶2 Victim knew Defendant from middle school, but they lost
touch when she moved out of state. Years later, after Victim
returned to Utah to attend college, Defendant contacted her
through social media and the two began to spend time together.

¶3 Although their relationship was not romantic, it began to
get physical. Victim consented to some sexual touching; on one
occasion she manually stimulated Defendant, and on another
occasion she performed oral sex on him. In each case, after ‚only
a couple of minutes‛ Victim began to feel uncomfortable, and
she terminated the action before Defendant ejaculated. On other
occasions, Defendant asked Victim to have sex with him, but she
told him that she did not want to.

¶4 One night, Victim invited Defendant to her house. She
and a roommate (Roommate) decided to take the drug Ambien
in order to hallucinate, and Victim told Defendant of their plans.
They wanted him to be with them in case one of them
overdosed. Victim and Roommate picked up Defendant at his
house, and he agreed to drive them home.

¶5 En route to Victim’s house, Victim and Roommate each
took three Ambien pills. Victim began feeling ‚a little bit dizzy‛
and Roommate began hallucinating and feeling ‚extremely ill.‛
Upon arrival, Roommate vomited outside the car, and Victim
vomited in the bathroom. Victim also began hallucinating; she

1. At trial, Defendant and Victim gave similar accounts, although
the accounts differ on some key aspects. ‚*W+e view the
evidence and all reasonable inferences in the light most
favorable to [the jury] verdict and recite the facts accordingly.
We include conflicting evidence as relevant and necessary to
understand the issues on appeal.‛ State v. Dozah, 2016 UT App
13, ¶ 2, 368 P.3d 863 (citations omitted).

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 State v. Christensen

hallucinated that people were coming into the living room, and
she had Defendant and Roommate sit next to her to make space
for them. Victim testified that the hallucination was more like a
‚lucid dream‛; she ‚recognized that *she was+ having a
hallucination‛ and that ‚it was not reality.‛

¶6 At some point, Victim ‚blacked out.‛ The next thing she
remembered was being ‚flipped over‛ from her back onto her
stomach and feeling ‚the sharpest pain that [she had] ever felt in
[her] life through [her] rectum and up [her] spine.‛ Victim
‚screamed‛ that it hurt, and then she felt what was ‚inside‛ of
her ‚being removed.‛ Victim was in her bedroom, but she could
not recall how she got there. Defendant was behind her, and as
she turned over, he came ‚back around back onto the bed.‛
Victim had never had sex before; she ‚wasn’t really positive
what had happened‛ or what ‚steps *she+ needed to take.‛ She
asked Defendant if she needed to get ‚Plan B,‛ because she was
worried she might get pregnant. She told Defendant that he had
raped her.

¶7 Defendant denied he had raped her and told her she was
being ‚over dramatic.‛ He said there was no need to get ‚Plan
B‛ because he had not ejaculated, and if she did get pregnant,
she could just have an abortion. During their ‚confrontation‛
Victim saw Defendant writing on the chalkboard in her room,
though she could not see what he was writing. Defendant then
woke Roommate to borrow her car to drive himself home.
Meanwhile, Victim showered because she felt ‚dirty‛ and
‚disgusting.‛ After returning to her room, Victim noticed the
writing on the chalkboard, which read, ‚Abortion,‛ ‚Pro-
choice,‛ and ‚Fuck Dumb Bitches.‛

¶8 Victim woke Roommate in the early morning and
disclosed that she had been raped. She left the house to stay with
friends in another city, and was examined by a sexual assault
nurse later that day. The examination revealed that Victim had
six injuries: three lacerations to her labia majora and minora, two

20140720-CA 3 2016 UT App 225
 State v. Christensen

lacerations in her anal area, and a scratch on her inner right
thigh. The injuries were acute, meaning they had occurred in the
last twenty-four to forty-eight hours. The hospital reported the
assault to the police.

¶9 Victim never returned to her house—she gave up her
scholarship, dropped out of school, and moved home to be with
her parents. After the move, Victim could only sleep for a couple
of hours at a time. She had anxiety. She ‚felt broken‛ and
‚couldn’t be around other people.‛ A year after the assault, she
began to have flashbacks; memories from that night would ‚play
over and over again in *her+ mind.‛

¶10 In the course of their investigation, the police twice asked
Victim to call Defendant. Both phone calls were recorded. In the
first call, Victim confronted Defendant about what he had done,
but he denied that anything happened. Victim persisted, asking
him, ‚*W+hy did it hurt?‛ and saying, ‚I woke up in pain.‛
Defendant told her, ‚*You] know I have hands right? . . . I have
hands . . . .‛ In the second call, Defendant again denied that he
raped her, saying, ‚*W+e didn’t have sex,‛ and that ‚rape is sex,
period.‛

¶11 Defendant was charged with one count of rape and one
count of sodomy, both first degree felonies. The Information also
included an alternative charge of object rape, a first degree
felony.

¶12 At trial, the State called multiple witnesses including
Victim, Roommate, the investigating police officer, and the
examination nurse. The State also called an expert witness, a
clinical psychologist, who testified about the symptoms of post-
traumatic stress disorder (PTSD) and opined that Victim
exhibited some behaviors consistent with those symptoms. The
State’s expert did not testify that Victim suffered from PTSD or
that the symptoms she experienced arose because she had been

20140720-CA 4 2016 UT App 225
 State v. Christensen

sexually assaulted. Defendant called his own expert witness in
clinical psychology.

¶13 Ultimately, the jury acquitted Defendant of the rape and
sodomy charges, but found him guilty of object rape. Defendant
appeals.

ISSUES AND STANDARDS OF REVIEW

¶14 Defendant raises three issues on appeal. He concedes that
these issues were not preserved at trial, and asks us to review
them for plain error and ineffective assistance of counsel. First,
he contends the trial court plainly erred by allowing Victim to
testify, arguing that she was incompetent to testify.2 He also
claims defense counsel was ineffective for not objecting to that
testimony. Next, Defendant contends the court plainly erred by
permitting the State’s expert testimony on PTSD, and he again
claims his counsel was ineffective for not objecting to it. Finally,
Defendant contends that his counsel was ineffective with regard
to his own expert’s testimony.

¶15 To establish plain error, Defendant must show that ‚(i) an
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.‛ State v.
Griffin, 2016 UT 33, ¶ 17 (citation and internal quotation marks
omitted).

2. Defendant initially frames his argument as a sufficiency of the
evidence issue. But Defendant only supports this argument by
claiming that Victim’s testimony was inadmissible because she
was incompetent to testify. As we determine that the trial court
did not err in admitting Victim’s testimony, see infra ¶¶ 17–20,
we find no reason to apply a sufficiency of the evidence analysis.

20140720-CA 5 2016 UT App 225
 State v. Christensen

¶16 Claims of ineffective assistance of counsel raised for the
first time on appeal are reviewed for correctness. State v. Lucero,
2014 UT 15, ¶11, 328 P.3d 841. To establish ineffective assistance
of counsel, Defendant must show (1) that trial counsel rendered
deficient performance, falling below an objective standard of
reasonable professional judgment, and (2) that trial counsel’s
performance prejudiced him. Strickland v. Washington, 466 U.S.
668, 687–88, 694 (1984); accord State v. Bond, 2015 UT 88, ¶ 14, 361
P.3d 104.

ANALYSIS

I. Victim Was Competent to Testify.

¶17 Defendant first contends Victim was incompetent to
testify under rule 602 of the Utah Rules of Evidence. He argues
the trial court plainly erred by allowing her testimony and trial
counsel was ineffective for not objecting to it.

¶18 ‚Utah law imposes a very low bar for establishing the
competency of a witness.‛ State v. Calliham, 2002 UT 87, ¶ 22, 57
P.3d 220; see also Utah R. Evid. 601(a) (‚Every person is
competent to be a witness unless these rules provide
otherwise.‛). Competency requires witnesses to have ‚personal
knowledge of the matter,‛ Utah R. Evid. 602, meaning witnesses
must ‚have the opportunity and the capacity to perceive the
events in question.‛ State v. Eldredge, 773 P.2d 29, 33 (Utah 1989).

¶19 Defendant specifically claims Victim ‚rendered herself
incapable to observe‛ the events because she was under the
influence of Ambien, asserting Victim ‚‘blacked out’ and had no
recollection as to what happened for significant stretches of
time.‛ But a witness is not rendered incompetent merely because
her memory is ‚less than complete,‛ see id., or because she was
intoxicated or otherwise impaired during the events in question,
see State v. Villarreal, 857 P.2d 949, 956 (Utah Ct. App. 1993)

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 State v. Christensen

(concluding the victim was competent to testify even though she
was intoxicated while she was sexually assaulted), aff’d, 889 P.2d
419 (Utah 1995).

¶20 Here, Victim had the opportunity and the capacity to
perceive the events surrounding the assault, in particular the
intense pain she felt in her rectum. Though she passed out while
under the effects of Ambien, the pain of the experience brought
her to consciousness. She had detailed memories of pain and
other sensations, of seeing Defendant, and of conversing with
him. Even though the effects of the drug may have rendered her
memory incomplete, Victim was present, conscious at times, and
able to remember the assault. She was thus competent to testify.
She was also competent to testify to her experiences before and
after the night of the assault. Thus, the trial court did not err in
allowing her testimony.

¶21 ‚Once a witness is deemed competent, matters of
credibility are best left to the jury.‛ Calliham, 2002 UT 87, ¶ 23.
Doubts about a witness’s ability to testify accurately and
truthfully can be investigated through cross-examination. See id.
¶ 24. Because Victim was competent to testify, trial counsel was
not remiss for declining to object to the admission of her
testimony. See State v. Chacon, 962 P.2d 48, 51 (Utah 1998)
(‚Neither speculative claims nor counsel’s failure to make futile
objections establishes ineffective assistance of counsel.‛).
Furthermore, while cross-examining Victim, Defendant’s
counsel focused on her drug use, unconsciousness, and memory
gaps, and thereby elicited favorable testimony for the defense.
Counsel could have reasonably decided to refrain from objecting
to Victim’s testimony so as to discredit it during cross-
examination. This is a ‚conceivable tactical basis for counsel’s
actions.‛ See State v. King, 2012 UT App 203, ¶ 14, 283 P.3d 980
(citation and internal quotation marks omitted).

¶22 Because Defendant has not overcome ‚the strong
presumption that ‘under the circumstances the challenged action

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 State v. Christensen

might be considered sound trial strategy,’‛ Defendant has not
shown that his counsel’s performance was deficient. See State v.
Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (quoting Strickland v.
Washington, 466 U.S. 668, 689 (1984)). Trial counsel thus did not
render ineffective assistance. See State v. Bair, 2012 UT App 106,
¶ 49, 275 P.3d 1050 (‚*B+ecause both deficiency and prejudice
must be shown, a reviewing court can dispose of an
ineffectiveness claim on either ground.‛ (citation and internal
quotation marks omitted)).

II. The State’s Expert Testimony Was Admissible.

¶23 Citing rule 403 of the Utah Rules of Evidence, Defendant
contends the trial court plainly erred in admitting the State’s
expert testimony because it created unfair prejudice, confused
the issues, and misled the jury. Defendant also contends, citing
rule 702, that the testimony invaded the jury’s province as fact
finder.

¶24 An expert may testify if ‚the expert’s scientific, technical,
or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue.‛ Utah R.
Evid. 702(a). A court may exclude an expert’s testimony ‚if its
probative value is substantially outweighed by a danger of . . .
unfair prejudice, confusing the issues, [or] misleading the jury
. . . .‛ Id. R. 403.

¶25 Defendant argues that the State’s expert testimony was
‚clearly employed for the purpose of showing that a rape
occurred‛ and was ‚likely to mislead the jury that a scientific
judgment was made that something ‘traumatic’ had happened to
*Victim+.‛ He cites State v. Rimmasch, 775 P.2d 388 (Utah 1989),
for the proposition that profile testimony, which ‚portrays the
characteristics of the typical victim of sexual abuse,‛ ‚has a
tendency to mislead and confuse a finder of fact by suggesting
that the issue to be decided is whether the accusing [victim]
possesses these characteristics, rather than whether the [victim]

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 State v. Christensen

experienced the specific instances of abuse described.‛ Id. at 402
n.13.3

¶26 In Rimmasch, experts testified that the victim had in fact
been sexually assaulted, basing their conclusion largely on the
victim’s conformance to a psychological sexual abuse profile. Id.
at 394–95. This testimony was inadmissible because there was no
scientific evidence establishing the reliability of the profile or its
ability to correctly identify sexual abuse victims. Id. at 399–404.
While Rimmasch qualified the use of profile testimony, it did not
altogether prohibit its use.4

¶27 State v. Kallin, 877 P.2d 138 (Utah 1994), clarified the use of
similar testimony—under Kallin, experts may testify that a
victim’s behavior is consistent with sexual abuse without

3. Before rule 702 of the Utah Rules of Evidence was amended in
2007, State v. Rimmasch, 775 P.2d 388 (Utah 1989), was ‚the
standard of determining the admissibility of technical or
scientific expert testimony. . . .‛ Eskelson ex rel. Eskelson v. Davis
Hosp. & Med. Center, 2010 UT 59, ¶ 10, 242 P.3d 762. The
amendment to rule 702 was intended ‚‘to clarify the
requirements for admission’ of expert testimony and subsume
the Rimmasch standard into rule 702.‛ State v. Maestas, 2012 UT
46, ¶ 121 n.134, 299 P.3d 892 (quoting Eskelson, 2010 UT 59, ¶ 11).

4. The court in Rimmasch did ‚not mean to imply that profile
testimony is unreliable as a matter of law.‛ Rimmasch, 775 P.2d at
403. Rather, the court determined that expert testimony that a
child victim had been abused is inadmissible if the opinion is
based on ‚conformance of a victim’s behavior to a child sexual
abuse profile if there was no scientific evidence establishing the
scientific accuracy of the profile in identifying child sex abuse
victims.‛ State v. Kallin, 877 P.2d 138, 140 (Utah 1994); Rimmasch,
775 P.2d at 399–404.

20140720-CA 9 2016 UT App 225
 State v. Christensen

running afoul of the holding in Rimmasch. ‚Evidence that certain
behavioral symptoms are consistent with sexual abuse does not
prove directly the ultimate legal conclusion that the [victim] was
abused . . . .‛ Kallin, 877 P.2d at 141. While this evidence cannot
be admitted for the purpose of proving the ultimate legal
conclusion of abuse, it may ‚enable the jury to assess the
probative relevance of the evidence in light of all other
evidence.‛ Id. In any event, such testimony is ‚not based on a
psychological sexual abuse profile,‛ but rather founded on ‚the
experience and observations of those who work with abused
[victims].‛ Id.

¶28 Similar to Kallin, the expert in this case testified that
Victim’s symptoms were consistent with PTSD. His testimony
was not based on a psychological profile, and he did not testify
as to the ultimate legal conclusion that Victim was sexually
assaulted. Instead, the expert gave an overview of PTSD,
explaining its progression and symptoms, and testified that
according to Victim’s testimony, ‚several things she described
would be consistent with a description of post-traumatic stress
disorder.‛ The expert then explained that Victim’s sleep
patterns, her withdrawal, her flashbacks, and her fear were all
consistent with PTSD symptoms. The expert acknowledged that
Victim was not one of his patients and stated that his testimony
was not a diagnosis of PTSD. He also conceded that some of
Victim’s symptoms were consistent with depression. The expert
did not testify as to the source of those symptoms—he did not
testify that her symptoms demonstrated she had been
assaulted—but his testimony was clear that PTSD arises from
some form of trauma, i.e., a ‚serious threat to your life or serious
threat to your health and well-being.‛

¶29 The State’s expert testimony was admissible under rule
702 of the Utah Rules of Evidence. ‚[T]he manifestation of
certain behavioral symptoms‛ and ‚*e+xpert testimony that such
symptoms are consistent with sexual abuse‛ may have some

20140720-CA 10 2016 UT App 225
 State v. Christensen

probative value as circumstantial evidence. Kallin, 877 P.2d at
141. ‚The probative value of such evidence is usually beyond the
ken of a jury‛ without the help of an expert. Id. That is, expert
testimony that a victim’s symptoms are consistent with PTSD
may help triers of fact to better understand the evidence before
them. See Utah R. Evid. 702(a).

¶30 The State’s expert testimony was also permissible under
rule 403 of the Utah Rules of Evidence. At issue in this case was
whether the abuse occurred—not the identity of the assailant.
Defendant admitted he was with Victim on the night in question
and was ‚the only one there,‛ but he maintained that ‚nothing
happened.‛ Trial counsel postulated Victim hallucinated the
assault. The expert’s testimony, linking Victim’s symptoms to
PTSD and possible trauma, was probative of whether abuse
occurred and did not mislead the jury or confuse the issues. It
was also not unduly prejudicial—although the expert testified
that Victim’s symptoms were consistent with some form of
trauma, he did not speculate that Victim had been raped or
otherwise sexually abused. Similar testimony has been permitted
in other cases. See, e.g., Kallin, 877 P.2d at 141 (affirming the trial
court’s admission of testimony that the ‚victim’s symptoms
were ‘consistent with’ sexual abuse‛); State v. Sloan, 2003 UT
App 170, ¶ 25, 72 P.3d 138 (affirming the trial court’s admission
of testimony that the victim’s ‚behavior was consistent with
sexual abuse‛).

¶31 Because the expert’s testimony was admissible under
rules 702 and 403 of the Utah Rules of Evidence, the trial court
did not plainly err in admitting it.

¶32 Defendant’s ineffective assistance argument also fails.
Even had counsel performed deficiently by not objecting to the
expert’s testimony, the error did not prejudice Defendant. See
Strickland v. Washington, 466 U.S. 668, 691 (1984) (‚An error by
counsel, even if professionally unreasonable, does not warrant

20140720-CA 11 2016 UT App 225
 State v. Christensen

setting aside the judgment of a criminal proceeding if the error
had no effect on the judgment.‛).

¶33 To show prejudice, Defendant must demonstrate ‚‘a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’‛
Archuleta v. Galetka, 2011 UT 73, ¶ 40, 267 P.3d 232 (quoting
Strickland, 466 U.S. at 694). Defendant’s theory at trial was that
Victim hallucinated the assault. To offer evidence that Victim’s
trauma stemmed from real rather than hallucinatory events, the
State’s expert testified that Victim’s symptoms were consistent
with a description of PTSD. But even more direct evidence of
Victim’s trauma was offered by the examination nurse, who
testified that Victim had six physical injuries—three lacerations
on her labia majora and minora, two lacerations in her anal area,
and a scratch on her inner thigh. Victim also testified about the
assault, her injuries, and the trauma she suffered. Thus, even
without the expert’s testimony connecting Victim’s post-assault
symptoms to possible trauma, the jury heard substantial
evidence demonstrating that Victim experienced trauma. Other
evidence, including the writing on the chalkboard and
Defendant’s statements during the recorded phone calls, also
corroborates Victim’s version of the events. Due to the evidence
presented at trial, we cannot say that there was a reasonable
probability the result would have been different had
Defendant’s counsel objected to the State’s expert testimony.
Accordingly, Defendant has not shown ineffective assistance of
counsel.

III. The Ineffective Assistance of Counsel Claim Regarding
Defendant’s Own Expert Witness Is Inadequately Briefed.

¶34 Defendant also contends that trial counsel rendered
ineffective assistance in connection with the defense’s own
expert witness. Defendant argues counsel’s conduct ‚fell below
professional standards of conduct‛ in three respects. First,

20140720-CA 12 2016 UT App 225
 State v. Christensen

counsel did not give the State notice of the defense expert’s
intended testimony on the effects of Ambien and hallucinations.
Because the State did not have notice, the expert was precluded
from testifying on this matter. Second, Defendant faults counsel
for not retaining a memory expert to address Victim’s memory
gaps. Third, Defendant claims counsel was deficient for hiring
this particular expert, whose license had been suspended for a
time period fourteen years earlier.

¶35 The State argues that this issue is inadequately briefed,
and we agree. The Utah Rules of Appellate Procedure require an
appellant’s brief to ‚contain the contentions and reasons of the
appellant with respect to the issues presented, . . . with citations
to the authorities, statutes, and parts of the record relied on.‛
Utah R. App. P. 24(a)(9). ‚Briefs must contain reasoned analysis
based upon relevant legal authority. An issue is inadequately
briefed when the overall analysis of the issue is so lacking as to
shift the burden of research and argument to the reviewing
court.‛ Sloan, 2003 UT App 170, ¶ 13 (citation and internal
quotation marks omitted).

¶36 In a single paragraph, Defendant raises three different
claims of ineffective assistance of counsel. Although Defendant
cites the relevant authority under which we decide such claims,
he has not developed any meaningful legal analysis of his
arguments, nor has he provided citations to the record.
Defendant only lists the alleged deficiencies of trial counsel
regarding the expert testimony and asserts that these decisions
appear to have no rational basis. Because Defendant’s ineffective
assistance of counsel claim is inadequately briefed, we decline to
address this contention.

CONCLUSION

¶37 Defendant has not shown either plain error or ineffective
assistance of counsel. Victim was competent to testify, and her

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 State v. Christensen

testimony was admissible. The State’s expert testimony was also
admissible under rules 702 and 403 of the Utah Rules of
Evidence. And because Defendant’s final claim is inadequately
briefed, we do not address its merits.

¶38 Affirmed.

20140720-CA 14 2016 UT App 225