State v. Patterson

                          2013 UT App 11
_________________________________________________________

               THE UTAH COURT OF APPEALS


                          STATE OF UTAH,

                        Plaintiff and Appellee,

                                  v.

                     SCOTT KIRBY PATTERSON,

                      Defendant and Appellant.


                              Opinion
                          No. 20100243‐CA
                       Filed January 10, 2013

             Second District, Farmington Department
                 The Honorable Thomas L. Kay
                          No. 091700223

              Edwin S. Wall, Attorney for Appellant
              John E. Swallow and Ryan D. Tenney,
                      Attorneys for Appellee

     JUDGE JAMES Z. DAVIS authored this Opinion, in which
                JUDGES J. FREDERIC VOROS JR.
          and MICHELE M. CHRISTIANSEN concurred.


DAVIS, Judge:

¶1     Scott Kirby Patterson appeals his convictions of two counts
of aggravated sex abuse of a child and two counts of lewdness
involving a child. See generally Utah Code Ann. § 76‐5‐404.1(4)
(LexisNexis 2012); id. § 76‐9‐702.5.1 We affirm.




1. Where recent amendments to the Utah Code do not affect our
analysis, we cite the most recent version of the code for the reader’s
convenience.
                          State v. Patterson


                          BACKGROUND

¶2        Patterson’s convictions arose out of a ten‐month period
beginning in February 2008, during which he abused his step‐
daughter (Child), while married to Child’s mother (Mother).2 Child
disclosed the abuse to Mother on the first night that it happened.
Mother confronted Patterson in front of Child that night, and he
denied the allegations. Mother also asked Child whether she was
“really sure” about her accusations and told Child, “[I]f
[Patterson]’s done this . . . [we] will be fine, we’ll go get us an
apartment. We’re going to move out. We’ll be okay, you know, it
doesn’t matter . . . .” Child, the next morning, decided that she
“didn’t want to move” because she “liked where [they] were and
. . . liked [Patterson]” and that she “just didn’t want to change [her]
life just like that,” so she decided to tell Mother to “forget about it”
and to “put it behind,” and that “it might have been a dream,” even
though Child knew that “it wasn’t a dream.”

¶3     Shortly after Christmas that year, Mother confronted
Patterson again after realizing that both Child’s and Patterson’s
behavior had changed over the last few months and that the
changes had started after Child accused Patterson of abuse in
February. On December 27, 2008, Patterson admitted to Mother
that he had molested Child twice. Mother immediately planned to
move out of the house and filed for divorce on December 29, and
in the process she called an ecclesiastical leader from her church
(Bishop) to explain the situation and ask for his help. On February
9, 2009, Patterson was charged with two counts of aggravated
sexual abuse of a child and two counts of lewdness involving a
child.

¶4      Patterson also reached out to Bishop for help, meeting him
at his office several months after Mother moved out. Patterson later


2. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict.” Smith v. Fairfax Realty, Inc., 2003 UT
41, ¶ 3, 82 P.3d 1064 (citation and internal quotation marks
omitted).




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                          State v. Patterson


described his meeting with Bishop as “confidential clergy‐penitent
communication” that involved “discussions about confession in the
church.” Nonetheless, after Patterson was charged, he offered
Bishop’s name as a character reference to the medical professional
(Doctor) retained by his trial counsel to prepare a psychosexual
evaluation of Patterson; the evaluation was to be used in plea
negotiations and, if necessary, during sentencing. The
psychosexual evaluation contains Bishop’s statement to Doctor that
Patterson “told [him] how sorry he was for what he has done.”
Because of this statement in the psychosexual evaluation, the State,
during a recess in the middle of the trial and before Patterson had
testified, indicated to Patterson’s trial counsel that the State would
use Patterson’s communication with Bishop to impeach Patterson’s
testimony denying the abuse. Patterson decided to heed his trial
counsel’s advice and not testify, even though both he and his trial
counsel later testified that they were prepared for him to take the
stand.3

¶5     At trial, the defense posed the theory that Child’s allegations
were fabricated and used as leverage by a “very vindictive” Mother
during her and Patterson’s divorce. Throughout the trial, testimony
was elicited from both Mother and Child that suggested Patterson
was an angry person, who could be frightening at times. Mother’s
testimony also described some of the details of their divorce and
indicated that Patterson got most of the assets because she did not
“want to deal with him anymore.” Defense counsel used these
comments to support the theory that Child is a liar and that Mother
convinced Child to fabricate the charges out of bitterness and to
gain leverage in the divorce. One of the detectives (Detective)


3. Patterson was represented by two attorneys at trial and brings
ineffectiveness claims against them both. Additionally, the trial
record does not indicate one way or another whether Patterson
intended to testify. In a hearing before the trial court following a
remand from this court pursuant to rule 23B of the Utah Rules of
Appellate Procedure, Patterson and both of his trial attorneys
testified that Patterson was prepared to testify at trial and would
have denied the abuse.




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                          State v. Patterson


present during Child’s interview at the Children’s Justice Center
(CJC) also testified at trial. Detective’s testimony addressed the
consistency between Child’s trial testimony and her CJC interview.

¶6     Patterson was convicted of all four charges and appealed.
This court granted in part and denied in part Patterson’s motion to
remand pursuant to rule 23B of the Utah Rules of Appellate
Procedure. See generally Utah R. App. P. 23B(a) (permitting remand
to the trial court “for entry of findings of fact, necessary for the
appellate court’s determination of a claim of ineffective assistance
of counsel”). Our order for remand specified,

              This matter is remanded to the district
              court for an evidentiary hearing for the
              limited purpose of entering findings of
              fact relevant to the determination of
              whether trial counsel’s actions in
              advising Patterson not to testify on his
              own behalf, due to counsel’s concern
              that the prosecutor would either
              question Patterson concerning
              communications he made to his bishop
              or would call the bishop to impeach
              Patterson’s testimony, constituted
              ineffective assistance of counsel.

The trial court entered findings on this issue, and the case was
returned to this court.


            ISSUES AND STANDARDS OF REVIEW

¶7      We address several issues on appeal. First, Patterson argues
that his attorneys were ineffective for advising him not to testify in
light of the State’s threat to use Bishop’s statements to impeach him
when the clergy‐penitent privilege would have prohibited
admission of Bishop’s comments. “In ruling on an ineffective
assistance claim following a Rule 23B hearing, we defer to the trial




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                           State v. Patterson


court’s findings of fact, but review its legal conclusions for
correctness.” State v. Bredehoft, 966 P.2d 285, 289 (Utah Ct. App.
1998) (citation and internal quotation marks omitted).

¶8      Patterson also argues that his trial attorneys were ineffective
for failing to object to impermissible character evidence that came
in through Child’s and Mother’s testimonies, and for failing to
object to Detective’s testimony regarding Child’s character for
truthfulness. “An ineffective assistance of counsel claim raised for
the first time on appeal presents a question of law.” State v. Ott,
2010 UT 1, ¶ 16, 247 P.3d 344 (citation and internal quotation marks
omitted).

¶9      Last, Patterson asserts that the trial court committed plain
error by allowing character evidence to be admitted and by
permitting Detective to testify to Child’s character for truthfulness.
To prevail on a claim of plain error, Patterson must show that an
error occurred at trial; “that the error should have been obvious to
the trial court[;] and that the error is harmful, i.e., absent the error,
there is a reasonable likelihood of a more favorable outcome for the
appellant, or phrased differently, our confidence in the verdict is
undermined.” State v. Boyd, 2001 UT 30, ¶ 21, 25 P.3d 985 (citation
and internal quotation marks omitted).


                              ANALYSIS

                     I. Clergy‐Penitent Privilege

¶10 Patterson argues that he “was denied effective assistance of
counsel when [his trial attorneys] failed to advise him of the clergy‐
penitent privilege and did not assert it at trial,” thereby leading
Patterson to decide against testifying despite his earlier plan to
testify.4 Because this issue was addressed in the rule 23B hearing,


4. Patterson also argues that the prosecutor committed misconduct
by threatening to use privileged communications with Bishop to
                                                     (continued...)




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                           State v. Patterson


we defer to the trial court’s factual findings. See Bredehoft, 966 P.2d
at 289. To succeed on an ineffective assistance of trial counsel claim,
“a defendant must . . . demonstrate that counsel’s performance was
deficient, in that it fell below an objective standard of reasonable
professional judgment,” and “that counsel’s deficient performance
was prejudicial—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)). “Defendant not only has
the burden of meeting both prongs of this test, but must also



4. (...continued)
impeach Patterson if he decided to testify when the clergy‐penitent
privilege would have likely prohibited the State from doing so.
Patterson suggests that the issue was preserved during the rule 23B
hearing. However, rule 23B hearings are not the proper forum to
preserve such claims; they provide one thing—“a procedural
solution to the dilemma created by an inadequate record of trial
counsel’s ineffectiveness” where ineffective assistance of trial
counsel is a claim on appeal. See State v. Johnston, 2000 UT App 290,
¶ 7, 13 P.3d 175 (per curiam); see also Utah R. App. P. 23B(a) (“A
party to an appeal in a criminal case may move the court to remand
the case to the trial court for entry of findings of fact, necessary for
the appellate court’s determination of a claim of ineffective
assistance of counsel.”); Johnston, 2000 UT App 290, ¶ 7 (“The
purpose of Rule 23B is for appellate counsel to put on evidence he
or she now has, not to amass evidence that might help prove an
ineffectiveness of counsel claim. It allows supplementation of the
record, in limited circumstances, with nonspeculative facts not fully
appearing in the record that would support the claimed deficient
performance and the resulting prejudice.”). Because this issue was
not preserved, and Patterson has not demonstrated plain error,
Patterson waived this argument. See State v. King, 2010 UT App
396, ¶ 27, 248 P.3d 984 (“[A defendant]’s failure to object to
improper remarks waives his prosecutorial misconduct claim
unless the remarks reach the level of plain error, meaning that an
error exists [that] should have been obvious to the trial court and
that the error was harmful.” (second alteration in original)
(citations and internal quotation marks omitted)).



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                          State v. Patterson


overcome ‘a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.’” State v.
Snyder, 860 P.2d 351, 354 (Utah Ct. App. 1993) (quoting Strickland,
466 U.S. at 689). “Additionally, because both deficiency and
prejudice must be shown, a reviewing court can dispose of an
ineffectiveness claim on either ground.” State v. Bair, 2012 UT App
106, ¶ 49, 275 P.3d 1050 (citation and internal quotation marks
omitted).

¶11 This ineffectiveness argument rests on the applicability of
the clergy‐penitent privilege and whether Patterson waived it by
permitting Doctor to contact Bishop. The clergy‐penitent privilege
is established by rule 503 of the Utah Rules of Evidence,5 which
states,

              A person has a privilege to refuse to
              disclose, and to prevent another from
              disclosing, any confidential
              communication: (1) made to a cleric in
              the cleric’s religious capacity; and



5. Patterson relies on Utah Code section 78B‐1‐137 as establishing
the clergy‐penitent privilege, as well as rule 503. See Utah Code
Ann. § 78B‐1‐137(3) (LexisNexis 2012) (“A member of the clergy or
priest cannot, without the consent of the person making the
confession, be examined as to any confession made to either of
them in their professional character in the course of discipline
enjoined by the church to which they belong.”). Although rule 503
was based on “the basic concept of” section 78B‐1‐137, it was
intended to “expand[]” that concept, see Utah R. Evid. 503 advisory
committee’s note, and in accordance with that intent, rule 503
renders “ineffectual” section 78B‐1‐137, see id. R. 501 advisory
committee’s note. Thus, we rely on rule 503 and other applicable
rules of evidence for our analysis. See generally Debry v. Goates, 2000
UT App 58, ¶ 24 n.2, 999 P.2d 582 (“The Utah Rules of Evidence
expressly supersede statutory privileges. . . . Statutory privileges
not in conflict are retained, but when inconsistencies arise, the rules
control.” (citations omitted)).



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                          State v. Patterson


              (2) necessary and proper to enable the
              cleric to discharge the function of the
              cleric’s office according to the usual
              course of practice or discipline.

Utah R. Evid. 503(b); see also id. R. 503(a) (defining “cleric” as “a
minister, priest, rabbi, or other similar functionary of a religious
organization or an individual reasonably believed to be so by the
person consulting that individual,” and defining “confidential
communication” as “a communication: (A) made privately; and
(B) not intended for further disclosure except to other persons in
furtherance of the purpose of the communication”); id. R. 503(c)
(including among the people who can claim the privilege “the
person who made the confidential communication” and “the
person who was the cleric at the time of the communication on
behalf of the communicant”). The privilege protects both
penitential and nonpenitential communications. See Scott v.
Hammock, 870 P.2d 947, 950 & n.2 (Utah 1994) (interpreting the
privilege as it appeared in former Utah Code section 78‐24‐8, which
is virtually identical to the current Utah Code section 78B‐1‐137);
see also Utah. R. Evid. 503 & advisory committee’s note (explaining
that the rule aims “to extend the privilege beyond doctrinally
required confessions” and be “broadly applicable to all confidential
communications with a cleric”).

¶12 The parties do not dispute that Patterson’s communications
with Bishop are covered by the privilege. Rather, the parties
dispute whether the privilege was waived. The trial court’s rule
23B findings indicate that Patterson waived the privilege when he
permitted Doctor to contact Bishop and when a synopsis of
Bishop’s comments to Doctor that included the statement, “[H]e
told me how sorry he was for what he has done,” was provided to
the prosecution. Specifically, the trial court stated that Patterson,
“as holder of the communications to clergy privilege, failed to take
reasonable precautions against inadvertent disclosure of his
communications with Bishop.”

¶13 Waiver of a privilege occurs when the “person who holds a
privilege . . . (1) voluntarily discloses or consents to the disclosure



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                          State v. Patterson


of any significant part of the matter or communication, or (2) fails
to take reasonable precautions against inadvertent disclosure.”
Utah R. Evid. 510(a).6 Additionally, “it is not necessary under Rule
[510] to show that a [privilege holder] intended to waive the
privilege but only that she intended to make the disclosure.” Doe
v. Maret, 1999 UT 74, ¶ 19, 984 P.2d 980, overruled on other grounds
by Munson v. Chamberlain, 2007 UT 91, 173 P.3d 848.

¶14 Here, both Patterson and Bishop held the privilege, see Utah
R. Evid. 503(c)(1), (4), and both “fail[ed] to take reasonable
precautions against inadvertent disclosure,” see id. R. 510(a)(2). The
psychosexual evaluation provided to the prosecution paraphrases
Bishop as stating,

              We ha[d Patterson] and his wife
              teaching a primary class for 6–8
              months and I was never aware of any
              inappropriate sexual behavior . . . no
              incidents. The first I found out
              anything was when he came and told
              me about this . . . . He told me he was
              in a lot of different leadership positions
              in the past . . . . I’ve never known him
              to be misleading and has always been
              upfront . . . he told me how sorry he
              was for what he has done . . . all that I
              know of it is isolated just to this . . . .

(Emphasis omitted) (omissions in original). The implication of
Bishop’s statement is that Patterson confessed to the charges.
Bishop was contacted by Doctor to opine on Patterson’s ability to
safely be around children, and the first part of Bishop’s statement


6. Rule 507 of the Utah Rules of Evidence governed waiver of
privileges at the time of the rule 23B hearing but was subsequently
renumbered as rule 510. Because this amendment to the rule was
purely stylistic, we cite the most current version of the rule. See
Utah R. Evid. 510 advisory committee’s note.



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                           State v. Patterson


to Doctor does that without implicating a confidential
communication. Though Bishop may not have intended to imply
that Patterson had confessed, his comments transcribed in the
psychosexual evaluation indicate that Bishop “fail[ed] to take
reasonable precautions against inadvertent disclosure.” See id.
Likewise, even if Doctor’s communication with Bishop did not
waive the privilege in and of itself, the fact that Patterson reviewed
the psychosexual evaluation with Doctor and trial counsel before
permitting the evaluation to be disclosed to the State essentially
amounts to his “consent[ing] to the disclosure of a[] significant part
of the . . . [privileged] communication,” see id. R. 510(a)(1), with that
“significant part” being the implication of his having confessed to
Bishop. Accordingly, because Patterson and Bishop waived the
privilege, trial counsel’s performance was not deficient for failing
to raise the privilege in deciding on how to advise Patterson
regarding his decision to testify.

¶15 Although trial counsel could have also taken steps after the
disclosure to try to preserve some confidentiality, cf. Gold Standard,
Inc. v. American Barrick Res. Corp., 805 P.2d 164, 172 (Utah 1990)
(holding that a party’s more than three‐month delay in filing a
motion for a protective order regarding materials that the party
seemingly knowingly disclosed, but later claimed to be confidential
attorney work product, “constitute[ed] an independent waiver of
whatever right [of confidentiality the party] may have been able to
assert”), Patterson has failed to convince us that such a step had a
reasonable probability of success, especially in light of Patterson’s
purposeful, rather than inadvertent, disclosure of the psychosexual
evaluation to the State. See Terry v. Bacon, 2011 UT App 432, ¶ 19,
269 P.3d 188 (recognizing that principles of fairness dictate that a
party “not be permitted to use the [attorney‐client] privilege as a
sword . . . [and] a shield”); see also 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.”).




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                          State v. Patterson


  II. Ineffective Assistance of Counsel on Issues Outside of the
                         Rule 23B Hearing

A. Rule 404 Evidence

¶16 Next, Patterson argues that Mother’s testimony about her
divorce from Patterson and Mother’s and Child’s testimonies about
Patterson’s temper amount to impermissible character evidence
under rule 404 of the Utah Rules of Evidence, and that trial counsel
was ineffective for failing to object to its admission. We reject this
claim.

¶17 “In determining whether counsel’s performance is
constitutionally deficient, we presume that counsel has rendered
adequate assistance.” State v. Dunn, 850 P.2d 1201, 1225 (Utah 1993)
(citing Strickland, 466 U.S. at 690). “Thus, if the challenged act or
omission might be considered sound trial strategy, we will not find
that it demonstrates inadequacy of counsel.” Id.

¶18 Here, Patterson’s theory of the case presented at the very
beginning of trial suggested that Child was coerced into making
false accusations by a “scorned” Mother, thereby inviting and
benefitting from the admission of the now challenged evidence.
Trial counsel’s failure to object to evidence that supported his
theory of the case was certainly a reasonable trial strategy.
Accordingly, trial counsel’s actions do not amount to ineffective
assistance. See id.

B. Detective’s Testimony Regarding Child’s Character for
Truthfulness

¶19 Patterson also argues that Detective was not qualified to
testify as to whether Child’s testimony to the jury and statements
to the CJC were truthful. Because this argument was not preserved,
Patterson requests that we review it in an ineffective assistance of
counsel framework.




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                         State v. Patterson


¶20 As stated above, the defense theory presented at trial was
that Child fabricated the charges and that Mother, motivated by
her vindictiveness in the wake of her divorce from Patterson,
coerced Child into doing so. The vindictiveness part of the theory
was to be proved with the evidence challenged above, and the
fabrication aspect was to be proved, in part, with Detective’s
challenged testimony. Detective’s statements that Patterson now
challenges involve Detective’s testimony regarding Child’s
demeanor during the CJC interview, her description of how
children typically behave during those types of interviews, and her
opinion regarding the consistency between Child’s CJC interview
and Child’s trial testimony. In answering the consistency question,
Detective noted that Child’s testimony was consistent, “except for
some of the obvious lies that were told” during the CJC interview.
Detective then elaborated on what the lie was about and noted that
children often lie in such situations. Trial counsel referred to
Child’s lie to the CJC in opening arguments, and Detective’s
testimony substantiated that assertion. Counsel subsequently used
Detective’s statement about the lie while cross‐examining Child
and during closing arguments to attack Child’s truthfulness.

¶21 Thus, regardless of whether such an objection would have
been futile, which is likely, cf. State v. Bair, 2012 UT App 106,
¶¶ 46–47, 275 P.3d 1050 (upholding as in accordance with the Utah
Rules of Evidence a detective’s testimony regarding his observation
that the victim’s CJC and trial testimonies were consistent, and
rejecting challenges to the permissibility of the detective’s
testimony regarding the frequency of delayed reporting in child sex
abuse cases because that fact is “already recognized by Utah
courts”), Detective’s testimony is largely consistent with trial
counsel’s stated defense theory. Accordingly, we cannot say that
counsel’s failure to object amounted to ineffective assistance.

                          III. Plain Error

¶22 Patterson also raises a plain error argument against the trial
court’s admission of Mother’s and Child’s testimonies regarding
Patterson’s character, and Detective’s testimony about Child’s




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                          State v. Patterson


character. Plain error, like ineffective assistance, provides an
exception to the preservation rule that otherwise requires
appellants to raise arguments for the first time during the
proceedings below. See State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d
346. The preservation requirement “serves two important policies.”
Id.

              First, in the interest of orderly
              procedure, the trial court ought to be
              given an opportunity to address a
              claimed error and, if appropriate,
              correct it. Second, a defendant should
              not be permitted to forego making an
              objection with the strategy of
              enhanc[ing] the defendant’s chances of
              acquittal and then, if that strategy fails,
              . . . claim[ing] on appeal that the Court
              should reverse.

Id. (alterations and omission in original) (citations and internal
quotation marks omitted). “The plain error exception [to the
preservation rule] enables the appellate court to balance the need
for procedural regularity with the demands of fairness.” Id. ¶ 13.
However, conducting a plain error review where trial counsel’s
failure to object was a strategic decision, “would be sanctioning a
procedure that fosters invited error.” State v. Bullock, 791 P.2d 155,
159 (Utah 1989); see also State v. Beck, 2007 UT 60, ¶¶ 16, 18, 165 P.3d
1225 (explaining that the trial court’s role is “to protect the
accused’s right to a fair trial,” and not to “usurp the function of
counsel”); State v. King, 2006 UT 3, ¶ 14, 131 P.3d 202 (noting that
it is the party’s prerogative, not the trial court’s, to present the
theory of the case and “to zealously advocate their cause,” and
citing this distinction as what “distinguishes our adversar[ial]
system of justice from the inquisitorial one” (citation and internal
quotation marks omitted)). Thus, if trial counsel’s decision not to
object “was conscious and did not amount to ineffective assistance
of counsel, this Court should refuse to consider the merits of the
trial court’s ruling. Indeed, the failure to object in such instances




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                           State v. Patterson


should be treated as a conscious waiver and should preclude
further consideration of the issue.” Bullock, 791 P.2d at 159. In other
words, “if trial counsel’s actions amounted to an active, as opposed
to a passive, waiver of an objection, we may decline to consider the
claim of plain error.” Id.

¶23 As discussed in the preceding section, that is precisely what
occurred here. Accordingly, we decline to address these issues in
a plain error framework. See id. at 158–59.


                            CONCLUSION

¶24 Trial counsel was not ineffective for failing to assert the
clergy‐penitent privilege because Patterson waived that privilege
when he approved the disclosure of the psychosexual report to the
State. Trial counsel was also not ineffective for failing to object to
the rule 404 evidence and for failing to object to Detective’s
testimony regarding Child’s description of events because both
supported trial counsel’s stated theory of the case. We do not
consider Patterson’s plain error challenges to the admission of the
rule 404 evidence and Detective’s statements about Child’s
description of events because that evidence corresponded with trial
counsel’s stated theory of the case.7

                        ____________________




7. Patterson also raises a cumulative error argument. “Under the
cumulative error doctrine, we will reverse only if the cumulative
effect of . . . several errors undermines our confidence . . . that a fair
trial was had.” State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993)
(second omission in original) (citation and internal quotation marks
omitted). Because we have rejected each of Patterson’s claims of
error, we also reject his cumulative error argument.



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