State v. Hand

2016 UT App 26

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
RONALD ALVIN HAND,
Appellant.

Memorandum Decision
No. 20140210-CA
Filed February 11, 2016

Second District Court, Farmington Department
The Honorable Robert J. Dale
No. 131700092

Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee

SENIOR JUDGE RUSSELL W. BENCH authored this Memorandum
Decision, in which JUDGES STEPHEN L. ROTH and KATE A. TOOMEY
concurred. 1

BENCH, Senior Judge:

¶1 Ronald Alvin Hand challenges his conviction of
aggravated sexual abuse of a child, a first-degree felony. See
Utah Code Ann. § 76-5-404.1(4)–(5) (LexisNexis 2012). In
connection with this appeal, he also filed a motion pursuant to
rule 23B of the Utah Rules of Appellate Procedure to remand the
case to supplement the record. We deny Hand’s motion and
affirm his conviction.

1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
State v. Hand

¶2 As a threshold matter, we consider Hand’s rule 23B
motion to supplement the record with the proposed testimony of
two alibi witnesses and information regarding the reliability of
the forensic interview of the victim. “A remand under rule 23B
will . . . be granted [only] ‘upon a nonspeculative allegation of
facts, not fully appearing in the record on appeal, which, if true,
could support a determination that counsel was ineffective.’”
State v. Lee, 2014 UT App 4, ¶ 5, 318 P.3d 1164 (quoting Utah R.
App. P. 23B(a)). To prevail on grounds of ineffective assistance, a
defendant must demonstrate, first, “that counsel’s performance
was deficient, in that it fell below an objective standard of
reasonable professional judgment,” and second, “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)).
Because we conclude that the facts alleged in the rule 23B
motion, even if true, could not support a determination that
counsel was ineffective, we deny Hand’s motion. See State v.
Griffin, 2015 UT 18, ¶ 20 (“It stands to reason that if the
defendant could not meet the test for ineffective assistance of
counsel, even if his new factual allegations were true, there is no
reason to remand the case, and we should deny the [rule 23B]
motion.”).

¶3 First, Hand asserts that his counsel performed deficiently
by failing to fully investigate two potential alibi witnesses and to
call them to testify at his trial. According to the affidavits
submitted in conjunction with Hand’s rule 23B motion, the two
witnesses would have testified that they were visiting the
victim’s mother’s home on “the day of the claimed incident” and
that they were with Hand the whole time the victim was present
at the home.

¶4 Even if Hand could establish the alibi witnesses’
testimony on remand, he could not demonstrate that counsel’s
failure to use the witnesses prejudiced him, because the
witnesses’ testimony would have done little to prove an alibi.

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State v. Hand

The affidavits do not actually identify the precise day the two
witnesses were present at the home; they only indicate that the
witnesses were in the home on “the day of the claimed incident”
and provide no additional information tying the day they
describe to the charged offense. But there was no evidence at
trial indicating when the “claimed incident” occurred. Rather,
the relevant events were charged to have occurred on an
unspecified date between May 19, 2010, and September 1, 2011.
Thus, testimony that two individuals were with Hand and the
victim on one particular day during that time frame would not
have established an alibi for the entire period during which the
incident could have occurred. Cf. Burke v. State, 2015 UT App 1,
¶¶ 23–25, 342 P.3d 299 (holding that counsel did not perform
deficiently by failing to investigate and present an alibi that
covered only a portion of the time during which the crime was
alleged to have taken place).

¶5 And even if the witnesses could have established an
exculpatory alibi, Hand could not establish that counsel
performed deficiently in failing to investigate them and call
them to testify at trial. The affidavits do not support Hand’s
assertion that defense counsel failed to investigate the witnesses.
In fact, both affidavits contradict that assertion, as both indicate
that the potential witnesses spoke with Hand’s counsel “about
how [they] could perhaps help [Hand’s] case.”

¶6 Furthermore, it was reasonable trial strategy for defense
counsel not to call the alibi witnesses. Using the alibi witnesses
would have required the defense to convince the jury not only
that the witnesses were with Hand on the day they claimed but
also that the day the witnesses were with Hand was the same
day the alleged abuse took place. Since there was no evidence
regarding the precise day the incident took place, it was
reasonable for defense counsel to use the lack of a precise date to
undermine the victim’s credibility rather than try to establish an
alibi. Indeed, defense counsel pointed out in opening and closing
arguments that the date of the alleged abuse was imprecise,

20140210-CA 3 2016 UT App 26
State v. Hand

stressing the difficulty of proving the circumstances of the case
and urging the jury to focus on inconsistencies in the victim’s
testimony. Defense counsel used the imprecise date to elicit
sympathy from the jury, emphasizing the State’s burden of proof
and asking the jury to consider how difficult it is for someone to
“prove a negative.” This was a reasonable approach under the
circumstances.

¶7 Additionally, defense counsel may have anticipated that
the victim and her mother might refute the witnesses’ claims of
having been present at the time of the incident, as neither the
victim nor her mother ever mentioned others being present at
the home on the day of the incident. Thus, counsel could have
reasonably determined that using the alibi witnesses would hurt
Hand’s case more than help it. Because there is a conceivable
strategy for not calling the alibi witnesses, Hand cannot
demonstrate that counsel performed deficiently. See State v.
Tennyson, 850 P.2d 461, 468 (Utah Ct. App. 1993) (“[A]n
ineffective assistance claim succeeds only when no conceivable
legitimate tactic or strategy can be surmised from counsel’s
actions.”).

¶8 Hand next argues that defense counsel was ineffective for
failing to investigate the reliability of the victim’s forensic
interview and use the results of that investigation to undermine
the victim’s credibility. The jury never actually heard the
interview and therefore did not rely on it in making its decision.
Thus, there was no need to undermine the credibility of the
interview itself. Accordingly, the only purpose we can surmise
that could have been served by attacking the interview’s
reliability would have been to assert that the interview somehow
improperly influenced the victim’s later testimony. But neither
the record nor the affidavits submitted with the rule 23B motion
establish the contents of the interview, so the relationship
between the interview and the victim’s trial testimony is
speculative.

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State v. Hand

¶9 Furthermore, defense counsel’s trial strategy focused on
proving that the allegations were fabricated in the first place, not
that the victim was influenced by improper interview
procedures. Counsel focused on proving that the victim had a
motive to accuse Hand because she disliked him and resented
his relationship with her mother. Thus, demonstrating that the
interview was improperly conducted would have done little to
advance the defense’s theory of the case. Pursuing a fabrication
defense was a reasonable trial strategy, and counsel did not
perform deficiently by pursuing this strategy rather than
attempting to undermine the forensic interview, which was not
even presented to the jury.

¶10 Hand also argues that the trial court applied the wrong
standard in ruling on his motion to arrest judgment and erred in
denying that motion. We review a trial court’s ruling on a
motion to arrest judgment for correctness. State v. Black, 2015 UT
App 30, ¶ 12, 344 P.3d 644.

¶11 A court may reverse a jury verdict on a motion to arrest
judgment only when “the evidence is sufficiently inconclusive or
inherently improbable such that reasonable minds must have
entertained a reasonable doubt that the defendant committed the
crime for which he or she was convicted.” See State v. Bluff, 2002
UT 66, ¶ 63, 52 P.3d 1210 (citation and internal quotation marks
omitted). Here, Hand’s motion to arrest judgment was based on
his assertion that the victim told different people different stories
about what happened immediately after the alleged abuse
occurred, 2 that she did not tell anyone that Hand told her he
wanted her to be his “little girlfriend” until trial, that it was

2. The victim reported to several different individuals that she
hid from Hand following the incident, but her story varied as to
whether she hid in a truck, in a dog run, or behind some trees
and as to whether Hand found her and told her not to tell
anyone what had happened.

20140210-CA 5 2016 UT App 26
State v. Hand

improbable that Hand would have rubbed the victim’s back
while her mother was nearby, and that the hand gesture the
victim used at trial to indicate how Hand touched her was
inconsistent with the angle required for penetration.

¶12 The trial court concluded that the victim’s testimony
regarding the facts constituting the offense was “direct” and
“very specific and met each and every one of the elements of the
crime[].” The victim testified that Hand rubbed her back while
she was in bed with him and her mother and that she left
because she felt uncomfortable. Hand then followed her upstairs
and began rubbing her back under her shirt and putting his
hands down her pants underneath her underwear. The victim
testified that Hand digitally penetrated her and that he asked her
“to be his little girlfriend.”

¶13 The trial court determined that Hand was “primarily
complaining of inconsistent testimony” that went to the
credibility of the witnesses and was “something for the jury to
weigh.” It determined that the victim’s inconsistent testimony
about what Hand said to her and what happened after the
incident ultimately went to the victim’s credibility and did not
make her testimony regarding the facts constituting the crime
inherently improbable. The court further concluded that if the
mother was asleep, it was not improbable that Hand could have
rubbed the victim’s back in the mother’s presence without the
mother knowing. The court also observed that the hand gesture
used by the victim “was not a demonstration . . . of penetration
or how penetration occurred” but was used to show “how it was
that [Hand’s] hand . . . went inside of her clothing.”

¶14 Hand asserts that the trial court erred in dismissing the
inconsistencies in the victim’s testimony as “tangential,” arguing
that this approach departs from our supreme court’s holding
that “[s]ubstantial inconsistencies in a sole witness’s testimony,
though not directed at the core offense, can create a situation
where the prosecution cannot be said to have proven the

20140210-CA 6 2016 UT App 26
State v. Hand

defendant’s guilt beyond a reasonable doubt,” State v. Robbins,
2009 UT 23, ¶ 17, 210 P.3d 288. While substantial inconsistencies,
even as to tangential issues, may make a witness’s testimony
inherently improbable, we agree with the trial court that the
tangential inconsistencies in this case did not make “the
credibility of the witness . . . so weak that no reasonable jury
could find the defendant guilty beyond a reasonable doubt.” See
id. ¶ 18; see also State v. Kamrowski, 2015 UT App 75, ¶ 16, 347
P.3d 861 (“[I]nconsistencies with respect to peripheral issues or
details of the abuse will generally not implicate the inherent-
improbability doctrine but are matters for the jury to resolve in
assessing the witness’s credibility.”). Thus, the trial court did not
err in denying Hand’s motion to arrest judgment.

¶15 We conclude that Hand could not establish his ineffective
assistance of counsel claims even if he were permitted to
supplement the record on remand. Further, we determine that
the trial court did not err in denying Hand’s motion to arrest
judgment. Accordingly, we deny Hand’s rule 23B motion and
affirm his conviction.

20140210-CA 7 2016 UT App 26