Opinion
Case No. 20030621-CA.
Filed October 27, 2005. (Not For Official Publication).
Appeal from the Fourth District, Provo Department, 021402008, The Honorable James R. Taylor.
Margaret P. Lindsay, Orem, and Aaron Dodd, Provo, for Appellant.
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee.
Before Judges Davis, McHugh, and Orme.
MEMORANDUM DECISION
Thomas G. Black appeals his convictions of eight counts of aggravated sexual abuse of a child in violation of Utah Code section 76-5-404.1. See Utah Code Ann. § 76-5-404.1 (2003). Black argues that there was insufficient evidence to support the convictions, and, as such, the district court should have granted his motion for a judgment notwithstanding the verdict. Black also argues that the district court erred by excluding certain evidence under rule 608 of the Utah Rules of Evidence. We affirm.
The standard for determining whether the district court erred in failing to grant a motion for judgment notwithstanding the verdict
is the same as that applied by an appellate court in determining whether a jury verdict should be set aside for insufficient evidence. Under that standard, a trial court may arrest a jury verdict when the evidence, viewed in the light most favorable to the verdict, is so inconclusive or so inherently improbable as to an element of the crime that reasonable minds must have entertained a reasonable doubt as to that element.
State v. Workman, 852 P.2d 981, 984 (Utah 1993). In so doing, this court defers to the fact-finding abilities of the jury, especially in regard to conflicting evidence and the truthfulness of witnesses. See id. Thus, "[o]rdinarily, a reviewing court may not reassess the credibility or re-weigh the evidence, but must resolve conflicts in favor of the jury verdict." Id.
In some limited and unusual circumstances, however, "a reviewing court may reassess witness credibility. For example, testimony which is inherently improbable may be disregarded, . . . but to warrant such action there must exist either a physical impossibility of the evidence being true, or its falsity must be apparent, without any resort to inferences or deductions." Id. (quotations and citations omitted). Black claims that the victim's testimony was so inherently improbable that reasonable minds must have entertained a reasonable doubt about his guilt. Although we are troubled by some of the evidence highlighted by Black, we cannot say that the testimony rises to the level of physical impossibility as required by Workman.
Black contends that the victim's testimony was inherently improbable for five reasons: (1) no family member ever saw or heard anything to corroborate the victim's accounts of abuse, despite the victim's claims that she had been raped or abused hundreds of times; (2) at the age of thirteen the victim voluntarily moved from a shared room with her sister to a room that put her in closer proximity to Black, despite the fact that the victim alleged that Black had been abusing her for several years prior to the move; (3) the victim did not report the abuse until several years after she moved away from her home; (4) the victim never wrote of the abuse in her private journal and wrote several passages that could be considered inconsistent with claims of abuse; and (5) the victim was successfully impeached because she denied significant problems with her other family members despite evidence in her journal to the contrary.
Nothing in the victim's testimony suggests that it is false due to a physical impossibility or that its falsity is apparent without any resort to inferences or deductions. The victim testified that Black abused her hundreds of times. She also testified that the abuse often occurred while she shared a room with her younger sister. Black believes that it would be impossible for him to have abused the victim that many times without some member of the family, especially the victim's younger sister, hearing or seeing something that might corroborate the victim's account. This argument was made to and rejected by the jury. And there is nothing in the record that indicates the victim's account of the nature and frequency of abuse was an impossibility. The victim testified that neither she nor Black ever made much noise during these episodes. Further, the victim, her mother, and her older sister all testified that the family members were deep sleepers. Under such circumstances, we cannot conclude that the victim's testimony was inherently improbable, i.e., physically impossible or obviously false, and thus, we are unable to substitute our assessment of the evidence for that of the jury under the standard of review announced inWorkman. See id.
The victim testified that when she was thirteen, she requested to move out of the room that she shared with her younger sister to a room in the basement. Black frequently did laundry in the middle of the night near that room in the basement. Black argues that such testimony demonstrates that the victim's testimony was inherently improbable because no person experiencing abuse on the scale alleged by the victim would voluntarily place herself in closer proximity to the perpetrator of that abuse. However, such an argument implicates complex questions of human behavior. The victim testified that she sought to move to a room of her own because she wanted her own space. She also testified that after six months in the basement she felt "trapped" and moved back upstairs. In light of this and other testimony, Black fails to demonstrate how this testimony was inherently improbable, as that term has been defined in case law, even if it is at odds with common experience.
The victim did not report the abuse to a therapist until her early twenties, several years after she had moved out of Black's home. Black alleges that this delay in reporting the abuse demonstrates that her testimony was inherently improbable. This court has previously recognized that "[d]elayed discovery and reporting are common" in cases of sexual offenses involving child victims. State v. Hoyt, 806 P.2d 204, 209 (Utah Ct.App. 1991). The victim also testified to the reasons she did not report the discovery at an earlier date. If believed by the jury, such testimony offered a plausible explanation of the delay. Thus, Black has failed to demonstrate how such testimony was inherently improbable.
The victim never mentioned the sexual abuse in her journal. In fact, several entries in her journal could have been considered contradictory to her claims of abuse, including references to her virginity. Black alleges that if the abuse had occurred, it would have been inherently improbable for the victim not to have included accounts of the abuse in her journal, especially when she claimed that her journal represented a safe haven, which allowed her to express her feelings on numerous matters. However, at trial the victim explained that she did not write of the abuse because she was afraid someone might read her journal. She also stated that she wanted to compartmentalize what was occurring to her. As for the journal entries, which could be viewed as contradicting her claims of abuse, the victim testified as to the context and meaning of each of those statements. These explanations were not physically impossible or obviously false. In this same vein, we cannot conclude that the victim's statements that she did not have significant difficulties with other family members, despite noting some problems with family members in her journal, necessarily rendered the rest of her testimony inherently improbable.
Finally, even if we view all of these aspects of the victim's testimony together, we cannot conclude that her testimony was inherently improbable. Black's primary defense to these charges was that the victim's story was not believable and that it was impossible for Black to abuse the victim in the manner described. Black presented this argument to the jury, and the jury rejected it. Although we recognize some apparent inconsistencies in the testimony of the victim, we may not substitute our judgment for that of the trier of fact. Where, as here, the issue is one of truthfulness "the jury serves as the exclusive judge of both the credibility of witnesses and the weight to be given particular evidence." State v. Workman, 852 P.2d 981, 984 (Utah 1993). Because the victim's testimony is not "`clearly contrary to some immutable law of physics'" we must defer to the jury's finding that the victim's testimony was credible. Id. (quoting parenthetically Siruta v. Hesston Corp., 659 P.2d 799, 806 (Kan. 1983)).
Black next contends that the district court improperly excluded evidence that should have been allowed under rule 608(c) of the Utah Rules of Evidence. This rule states: "Bias, prejudice or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by evidence otherwise adduced." Utah R. Evid. 608(c). Black did not properly preserve this issue for appeal. Generally, "a contemporaneous objection or some form of specific preservation of error must be made a part of the trial court record before an appellate court will review such a claim." State v. Johnson, 774 P.2d 1141, 1144 (Utah 1989) (quotations and citation omitted). Further, the objection must "be specific enough to give the trial court notice of the very error . . . complained of." Beehive Med. Elecs., Inc. v. Square D Co., 669 P.2d 859, 860 (Utah 1983). During Black's discussion with the district court concerning the admissibility of the evidence, Black never once mentioned rule 608(c) or the words bias, prejudice, or motive to misrepresent. In fact, the only explanation Black offered for why the evidence should be admitted was to demonstrate that the victim misinterpreted the scenario at issue, i.e., whether his reaction to the victim's objections to a video she found in Black's room were violent and could support her fear of him. Black's claim that the victim overreacted to this incident does not raise the issue that she was biased, prejudiced, or had a motive to misrepresent those facts.
Furthermore, Black failed to proffer the evidence he sought to admit through the testimony of the victim's younger sister. In the case of excluded testimony "error cannot be predicated upon a ruling which . . . excludes evidence unless a substantial right of the party is affected, and . . . the substance of the evidence was made known to the court by offer or was apparent from the context." Utah R. Evid. 103(a)(2). No such proffer appears in the record. Without such a proffer it is impossible for this court to determine whether such evidence was properly excluded or if its exclusion prejudiced Black. See State v. Rammel, 721 P.2d 498, 499-500 (Utah 1986) (stating an erroneous exclusion of evidence will not be set aside unless a proffer of evidence appears of record, and the excluded evidence would probably have a substantial influence in bringing about a different verdict).
Even if Black had properly preserved the issue for appeal, the district court did not err in excluding the evidence. Black specifically stated that he sought to admit the evidence to demonstrate that the victim misinterpreted a situation about which she testified at trial. While rule 608(c) allows evidence of bias, prejudice, and motive to misrepresent to be proven by extrinsic evidence, it makes no mention of a witness's misinterpretation of evidence. See Utah R. Evid. 608(c). Based upon the explanation of Black's counsel concerning why the evidence should have been admitted, rule 608(c) was simply inapplicable.
Black has not argued on appeal that the district court improperly excluded the evidence under rule 608(b) of the Utah Rules of Evidence. Accordingly, our review is limited strictly to whether the evidence was admissible under rule 608(c).
We are concerned about a lurking ineffective assistance of counsel issue. Trial counsel for Black made a strategic decision not to call as a witness a nurse practitioner hired by the State to examine the victim. Despite allegations that she had been raped hundreds of times by Black with full penetration, the physical evidence showed that the victim's hymen was largely intact. Due to the nurse practitioner's hostility to the defense and her opinion that the physical evidence was inconclusive, the trial court found that the decision not to call her as a witness for the defense was sound trial strategy, and therefore, could not support a claim for ineffective assistance of counsel. It appears from the record that the nurse practitioner would indeed have provided testimony that may have been unhelpful to the defense. Nevertheless, we are puzzled by the defense's decision not to have the victim examined by its own forensic gynecologist. In light of the victim's graphic testimony about the first occasion of full penetration and the recurrent incidents of sexual intercourse with Black after that date, this testimony may have been helpful to the jury in weighing the credibility of the witnesses. No such issue is before us in this appeal.
On the record before this court, we cannot say that the jury found facts that are inherently improbable as defined inWorkman. Therefore, we conclude that the district court did not err by failing to grant Black's motion for judgment notwithstanding the verdict. We also conclude that Black failed to preserve his rule 608(c) issue for appeal, but even if he had, the district court did not err in refusing to admit the evidence.
Affirmed.
Carolyn B. McHugh, Judge, Gregory K. Orme, Judge.
I CONCUR IN THE RESULT: James Z. Davis, Judge.