State v. Peraza

2020 UT App 173
THE UTAH C OURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
R OBERT A LONZO P ERAZA ,
Appellant.
Opinion
No. 20160302-CA
Filed December 24, 2020
Fourth District Court, Provo Department
The Honorable Darold J. McDade
No. 131402387
Douglas J. Thompson, Attorney for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee
J UDGE KATE A PPLEBY authored this Opinion, in which
J UDGES J ILL M. P OHLMAN and R YAN M. HARRIS concurred.
APPLEBY, Judge:
¶1 	This case is before us on remand from our supreme
court’s decision in State v. Alonzo Peraza (Peraza II), 2020 UT 48,
469 P.3d 1023, directing this court “to consider under the correct
legal 	standard” 	“whether 	Peraza 	established 	that 	he 	was
prejudiced 	by 	the 	trial 	court’s 	denial 	of 	his 	motion 	for 	a
continuance” and to “address any other remaining claims.” Id.
¶¶ 60, 63. We conclude Peraza has established that the district
court’s 	decision 	prejudiced 	him. 	We 	therefore 	vacate 	his

State v. Peraza
20160302-CA 	2 	2020 UT App 173
convictions and remand this case to the district court for further
proceedings, including potentially a new trial.1
¶2 	Robert Alonzo Peraza was convicted of four counts of
sodomy on a child (Child).2 On appeal to this court, Peraza
contended the district court erred by allowing the State to
present testimony by an expert (Expert) that had the effect of
bolstering Child’s testimony and by denying his motion to
continue the trial. See State v. Peraza (Peraza I), 2018 UT App 68,
¶¶ 23–24, 427 P.3d 276. We concluded the court erred on both
counts and, on that basis, vacated Peraza’s convictions and
remanded for a new trial. Id. ¶ 49.
¶3 	The State petitioned for certiorari, which our supreme
court granted. As relevant here, the State’s petition did not
contest 	this 	court’s 	“determination 	that 	the 	denial 	of 	the
continuance was error.” See Peraza II, 2020 UT 48, ¶ 51. Rather,
the State contended that in Peraza I this court improperly placed
the burden on it, rather than on Peraza, to prove he “had not
been prejudiced by the denial of his motion for a continuance.”
See id. ¶¶ 2, 51. The supreme court accordingly granted certiorari
on the issue of whether this court “erred in assigning [the State]
the burden of demonstrating that [Peraza] was not prejudiced by
1. As noted in our initial decision, Peraza also moved this court
for a rule 23B remand “for entry of findings of fact” necessary to
the determination of his ineffective assistance of counsel claim.
See Utah R. App. P. 23B(a). Because, as we explain below, we
vacate Peraza’s convictions and remand for a new trial on other
grounds, we do not address Peraza’s rule 23B motion or his
claims that his counsel performed ineffectively.
2. For a full recitation of the factual background, see State v.
Alonzo Peraza, 2020 UT 48, ¶¶ 5–25, 469 P.3d 1023, and State v.
Peraza, 2018 UT App 68, ¶¶ 3–22, 427 P.3d 276.

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the district court’s denial of his motion for continuance.” It
concluded this court in Peraza I erred “in shifting the burden to
the State to disprove prejudice” associated with the district
court’s denial of Peraza’s continuance request. Id. ¶¶ 3, 51–60
& n.10. 	Determining 	that 	Peraza 	requested 	the 	continuance
under the common law, the court explained that “[w]hen a
defendant moves for a continuance under the common law, it is
the defendant’s burden to prove that a denial of the motion
would be prejudicial,” meaning that “it was Peraza’s burden to
prove prejudice.” Id. ¶¶ 57–59. At the parties’ request, the court
remanded 	the 	case 	to 	us 	to 	decide 	the 	prejudice 	issue 	by
applying the correct standard, as well as any remaining claims.
Id. ¶¶ 4, 60, 63 & n.10.3
¶4 	A district court’s decision to grant or deny a continuance
is discretionary, and we will not reverse such a decision “absent
a clear abuse of that discretion.” Mackin v. State, 2016 UT 47,
¶ 33, 387 P.3d 986 (quotation simplified). “A trial court abuses its
discretion 	when 	it 	denies 	a 	continuance 	and 	the 	resulting
prejudice affects the substantial rights of the defendant, such
that a review of the record persuades the court that without the
error there was a reasonable likelihood of a more favorable
result for the defendant.” Peraza II, 2020 UT 48, ¶ 58 (quotation
simplified). “In general, when a party unsuccessfully requests a
continuance to procure a witness . . . pursuant to the court’s
inherent authority to manage the case, the movant must prove
prejudice on appeal.” Id.; see also id. ¶ 59 (“When a defendant
moves for a continuance under the common law, it is the
defendant’s burden to prove that a denial of the motion would
3. In Peraza II, the supreme court also concluded that this court
erred by concluding Expert’s testimony was inadmissible. Peraza
II, 2020 UT 48, ¶¶ 3–4, 33–50, 62–63. But that issue is not on
remand to this court, see id. ¶¶ 62–63, and we therefore do not
address it further.

State v. Peraza
20160302-CA 	4 	2020 UT App 173
be 	prejudicial.”). 	Here, 	it 	is 	therefore 	Peraza’s 	burden 	to
demonstrate he was prejudiced by the court’s failure to grant his
requested continuance. We conclude he has met his burden.
¶5 	During a pretrial hearing twelve days before trial, in
response to Peraza’s objection to allowing Expert to testify, the
State asserted it intended to call Expert “only to rebut any
argument from Peraza that [Child] was not credible because her
testimony had changed over time and she had recanted the
allegations on at least one occasion,” clarifying that Expert
“would testify that children might not make a full disclosure
initially, and that it’s a process.” Id. ¶ 15 (quotation simplified).
When 	Peraza 	requested 	a 	continuance 	later 	that 	day, 	he
explained to the court he had discovered that the effigy-doll
therapy Child underwent after the alleged abuse was a type
“that could give grounds for the recantation of the recantation”
and “might have led to the allegations becoming much more
violent and much more pronounced as the years have gone on.”
Peraza explained that he believed having an expert explore those
issues “might give a foundation for the defense” and “might
lead to credible evidence that would [lead] a jury to believe that
maybe 	these 	allegations 	are 	not 	true.” 	Peraza 	accordingly
requested the continuance to secure a defense expert. The district
court denied Peraza’s request.
¶6 	At 	trial, 	because 	there 	was 	no 	physical 	evidence
suggesting the abuse occurred, the case ultimately depended on
the 	jury’s 	assessment 	of 	Child’s 	credibility; 	indeed, 	Child’s
credibility was the major issue at trial. Child testified to the
abuse she contended Peraza had perpetrated upon her. But
importantly, 	Child’s 	credibility 	was 	significantly 	impeached
during 	trial. 	For 	example, 	during 	the 	defense’s
cross-examination 	of 	Child, 	defense 	counsel’s 	lines 	of
questioning 	highlighted 	that 	Child 	recanted 	the 	abuse
allegations to her mother and to a private investigator during an
interview, and that her allegations of the kinds of abuse she

State v. Peraza
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experienced were inconsistent over time. Child’s mother also
testified that she did not believe Child’s allegations and had
determined Child fabricated them. Specifically, Child’s mother
testified that Child recanted the allegations to her; that Child had
a general history involving fabrication, particularly regarding
conduct with boys; and that, in her view, Child’s behavior
during the relevant time was normal and did not suggest Child
had been abused. Finally, the private investigator to whom Child
recanted her allegations also testified, confirming that Child had
recanted 	her 	allegations 	against 	Peraza 	“numerous 	times”
during the interview and, in his view, her recantation statements
were voluntarily made.
¶7 	In response, the State called Expert as a rebuttal witness,
and Expert’s testimony focused on the issues of recantation and
delayed or gradual disclosures in child sexual abuse victims.
Expert testified that recanting is “not unheard of” in child sexual
abuse victims and happens in “between four percent to 20
percent of cases.” Expert also testified that just “because a child
recants does not mean [the abuse] did not occur,” and she
explained there are various reasons a child may recant when the
abuse 	did 	occur, 	such 	as 	“feeling 	pressure 	from 	family
members” or that the victims have seen negative repercussions
flowing from the allegations. Additionally, Expert testified it is
generally understood “that the majority of people who have
been sexually abused as a child delay disclosure” and that there
are also several reasons why a child sexual abuse victim would
only gradually disclose the abuse over time. Defense counsel
cross-examined 	Expert, 	but 	the 	defense 	offered 	no 	expert
witness to rebut Expert’s opinions.
¶8 	In these circumstances, we agree with Peraza’s contention
that he was prejudiced by the district court’s denial of his motion
to continue. We acknowledge defense counsel presented the
private investigator as a fact witness to testify about Child’s
recantations and otherwise highlighted the inconsistencies in

State v. Peraza
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Child’s 	testimony. 	Defense 	counsel 	also 	secured 	some
concessions from Expert. Nevertheless, in our view, Expert’s
testimony on the issues of recantation and delayed or gradual
disclosure 	had 	the 	clear 	effect 	of 	rehabilitating 	Child’s
credibility, and without the opportunity to present a defense
rebuttal 	expert, 	Peraza 	was 	handicapped 	in 	presenting 	his
defense.
¶9 	Expert’s 	testimony 	was 	aimed 	at 	bolstering 	Child’s
credibility by providing the jury with a basis upon which it
could conclude there was no credibility issue associated with
Child’s recantations and the progression of her reporting. See
State 	v. 	Iorg, 	801 	P.2d 	938, 	941–42 	(Utah 	Ct. 	App. 	1990)
(concluding, in a case that “hinged on credibility,” with “[n]o
physical 	evidence 	corroborat[ing] 	[the 	complainant’s]
allegations,” 	that 	the 	challenged 	testimony 	was 	prejudicial
where it “was clearly calculated to bolster [the complainant’s]
believability by assuring the jury no credibility problem was
presented by the delay in [the complainant’s] reporting the
incident”). But if the continuance had been granted, Peraza
could have secured an expert witness to directly rebut Expert’s
testimony on the recantation and disclosure issues. Specifically, a
defense 	expert 	could 	have 	testified 	that 	Child’s 	therapy
treatment both influenced her trial recantation of her previous
recantations and could have led to Child’s abuse allegations
becoming “more violent and much more pronounced” over
time. 	Such 	testimony 	would 	have 	permitted 	the 	jury 	an
opportunity to weigh Expert’s testimony against testimony of
arguably similar weight by a similar witness and, by extension,
would have provided the jury a basis from which to discount
Expert’s 	opinions 	on 	the 	recantation 	and 	disclosure 	issues
associated with Child’s testimony.
¶10 	Further, we also agree with Peraza that the rehabilitative
effect of Expert’s unrebutted testimony is amplified in light of
the evidentiary picture presented during trial. As discussed

State v. Peraza
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above, the case hinged on whether the jury believed Child’s
allegations of abuse, and the evidence against Peraza was not
overwhelming. See generally State v. Dick, 2012 UT App 161,
¶¶ 9–13, 280 P.3d 445 (evaluating the prejudice to the defendant
from the failure of a witness to testify to refute a rebuttal
witness’s testimony by looking to the evidence of guilt against
the defendant). In this respect, Expert’s testimony powerfully
suggested 	to 	the 	jury 	it 	was 	more 	reasonable 	to 	view 	the
evidence 	of 	Peraza’s 	guilt, 	and 	specifically 	Child’s 	factual
allegations, as truthful. Cf. State v. King, 2010 UT App 396, ¶ 46,
248 P.3d 984 (“When Utah appellate courts reverse for improper
bolstering, they usually do so not only where a case hinges on an
alleged victim’s credibility and there is no physical evidence, but
also where the bolstering was done by an expert witness.”
(quotation simplified)).
¶11 	In short, we are persuaded the district court’s continuance
denial was prejudicial because it affected Peraza’s substantial
rights by hampering his ability to put forward his defense. See
generally Peraza II, 2020 UT 48, ¶ 58. Given the import of Expert’s
testimony in light of the evidentiary picture, we conclude that if
the 	continuance 	had 	been 	granted, 	there 	is 	a 	reasonable
likelihood of a more favorable outcome for Peraza. See Iorg, 801
P.2d at 941–42; see generally Peraza II, 2020 UT 48, ¶ 58.
¶12 	Accordingly, we vacate Peraza’s convictions and remand
to the district court for further proceedings consistent with this
opinion, including potentially a new trial.