State v. Neilson

2017 UT App 7

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
DONALD S. NEILSON,
Appellant.

Memorandum Decision
No. 20140111-CA
Filed January 12, 2017

Eighth District Court, Vernal Department
The Honorable Edwin T. Peterson
No. 121800664

Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes, Laura B. Dupaix, and Jeffrey S. Gray,
Attorneys for Appellee

JUDGE KATE A. TOOMEY authored this Memorandum Decision, in
which JUDGES STEPHEN L. ROTH and DAVID N. MORTENSEN
concurred.

TOOMEY, Judge:

¶1 Donald S. Neilson was convicted of three counts of
aggravated sexual abuse of a child, and one count of sodomy on
a child, see Utah Code Ann. §§ 76-5-404.1(4), -403.1 (LexisNexis
Supp. 2016), all first degree felonies. Neilson contends the
district court erred in denying his motion for a mistrial and in
failing to sua sponte direct a verdict on all counts. Neilson also
argues the district court abused its discretion in ordering his
prison sentences to run consecutively. We affirm.
State v. Neilson

BACKGROUND 1

¶2 Sometime in late 2009 or early 2010, Neilson became
friends with R.S. (Father) and five-year-old C.S. (Child). Father
was intermittently out of work and sometimes stayed with
Child’s mother (Mother) and sometimes with Neilson. Father
and Child occasionally stayed with Neilson for several days at a
time. In the summer of 2012, when Child was eight years old,
she disclosed to her grandmother that Neilson had touched her
inappropriately. Child eventually told Father, and Father called
the authorities. A police officer (Officer) interviewed Child.

¶3 In the interview, Child stated that Neilson touched her
inappropriately on three different occasions. The first instance
occurred when she and Father were staying at Neilson’s house
overnight. Father was sleeping in the living room, and Child
went into Neilson’s room to avoid Father’s snoring. Child went
to sleep but awakened to find her pants and underwear pulled
down to her knees and “something touching [her] private.” She
saw that it was Neilson. Child tried “to get him away,” but he
would not leave her alone. Neilson asked her if she wanted him
to stop and Child said, “yes,” but Neilson “started to do it a little
bit more.” When asked what Neilson was doing, Child
responded, “He was touching outside of my private and inside.”

¶4 On another occasion, Child was with Neilson at his house
and Neilson took her into the living room and had her sit on his
lap. He unbuttoned her pants, took down her underwear, and
touched her “privates.”

1. “In reviewing a jury verdict, we view the evidence and all
reasonable inferences drawn therefrom in a light most favorable
to the verdict. We recite the facts accordingly, and present
conflicting evidence only to the extent necessary to understand
the issues raised on appeal.” State v. Dunn, 850 P.2d 1201, 1205–
06 (Utah 1993) (citations omitted).

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State v. Neilson

¶5 Child said that about a week later she was on Neilson’s
bed and he touched her with his hand and that “the worst part”
was when “[h]e licked [her] privates.” Child was lying on the
bed, Neilson was standing, and he licked the “inside” of her
“privates.” Child also said Neilson used a video camera on this
occasion.

¶6 After interviewing Child, Officer obtained search
warrants for Neilson’s house, storage unit, and vehicle. A
camera was found in Neilson’s vehicle but no corroborating
photographs or video footage was discovered. Officer contacted
Neilson, but Neilson declined to speak with him.

¶7 Neilson was charged with three counts of aggravated
sexual abuse of a child, and one count of sodomy on a child. 2 A
jury trial was held in September, 2013. Officer, Child, Mother,
Father, and the investigator all testified at trial and a video
recording of Officer’s interview with Child was played for the
jury.

¶8 During direct examination, the prosecutor (Prosecutor)
asked Officer if he contacted Neilson during his investigation.
Officer stated that he had contacted Neilson, but that Neilson
declined to speak with him. After Officer testified, and out of the
presence of the jury, Neilson moved “for a mistrial based on
prosecutorial misconduct.” Neilson argued that Prosecutor
inappropriately focused the jury’s attention on Neilson’s refusal
to talk with Officer and that the jury would therefore draw “a
negative inference.” The court denied the motion but gave the
jury a curative instruction that it should “take no negative
implication” from the fact that Neilson did not speak with
Officer and to give his refusal “no weight whatsoever in [its]
deliberations.”

2. Neilson was also charged with one count of sexual
exploitation of a minor, a second degree felony, but this charge
was dismissed at trial for lack of evidence.

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State v. Neilson

¶9 At trial, Father testified that he and Neilson were good
friends for about three years. They celebrated birthdays and
holidays together and “felt like family.” When Father stayed at
Neilson’s house, Child stayed with him, and the two slept in the
living room. Father testified that he sometimes left Child alone
with Neilson at Neilson’s house. Father said that Neilson was
“very affectionate” and that Father once got upset with Neilson
for giving Child a “[q]uick kiss on the lips.”

¶10 Neilson also testified at trial. He confirmed that he and
Father were friends for three years, that Father and Child often
stayed at his house for “three or four nights in a row or a week,”
and that Neilson sometimes assisted Father financially. Neilson
denied ever having been alone with Child at his house. He stated
that he had “never touched [Child] inappropriately.”

¶11 Although several witnesses testified, no one at trial
pointed to Neilson and identified him by name.

¶12 The jury convicted Neilson of three counts of aggravated
sexual abuse of a child and one count of sodomy upon a child.
The district court sentenced him to fifteen years to life in prison
for each count of aggravated sexual abuse of a child and twenty-
five years to life for the sodomy count. The court ordered all of
the sentences to run consecutively, for a total of seventy years to
life. Neilson appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Neilson raises three issues on appeal. First, he contends
the district court “erred in denying [Neilson’s] motion for
mistrial when the State elicited evidence that [Neilson] declined
to be interviewed by law enforcement.” “We review rulings on
motions for a mistrial based on prosecutorial misconduct for
abuse of discretion.” State v. Reed, 2000 UT 68, ¶ 18, 8 P.3d 1025.

¶14 Second, Neilson contends the court “erred in not sua
sponte directing a verdict on all [c]ounts” in Neilson’s favor

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State v. Neilson

because “the State neglected to have any witness identify
[Neilson] in the courtroom as the perpetrator of any of the
charged offenses.” “To prevail on a claim that the district court
erred in failing to sua sponte order a directed verdict, [a
defendant] must demonstrate that the district court committed
plain error.” State v. Atencio, 2005 UT App 417U, at para. 2 (per
curiam) (citing State v. Dunn, 850 P.2d 1201, 1208–09 (Utah
1993)).

¶15 Third, Neilson contends the court “erred in imposing
sentences which result in a de facto life sentence due to
[Neilson’s] age.” “Because trial courts are afforded wide latitude
in sentencing, a court’s sentencing decision is reviewed for an
abuse of discretion.” State v. Epling, 2011 UT App 229, ¶ 8, 262
P.3d 440 (citations and internal quotation marks omitted). “A
court exceeds its discretion if it acts with inherent unfairness in
imposing a sentence, imposes a clearly excessive sentence, or
fails to consider all legally relevant factors.” Id.

ANALYSIS

I. Mistrial Motion

¶16 Neilson first argues the court erred in denying his motion
for a mistrial. “[T]he trial court should not grant a mistrial except
where the circumstances are such as to reasonably indicate . . .
that a fair trial cannot be had and that a mistrial is necessary to
avoid injustice.” State v. Butterfield, 2001 UT 59, ¶ 46, 27 P.3d
1133 (omission in original) (citation and internal quotation marks
omitted). “Unless the record clearly shows that the trial court’s
decision is plainly wrong in that the incident so likely influenced
the jury that the defendant cannot be said to have had a fair trial,
we will not find that the court’s decision was an abuse of
discretion.” Id. (citation and internal quotation marks omitted).

¶17 Neilson contends Officer’s statement that Neilson
declined to speak with him during the investigation “impair[ed]
the fundamental fairness of the proceeding” and was prohibited

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State v. Neilson

by the Due Process Clause of the Fourteenth Amendment of the
United States Constitution. However, Neilson concedes that,
“[a]t least as it pertains to situations where the State has elicited
information about a defendant’s invocation of his right to remain
silent, the mere mention of it is not sufficient to demonstrate a
due process violation,” rather, “the State must in some way use
the silence to undermine the right to invoke.” See State v. Baker,
963 P.2d 801, 806 (Utah Ct. App. 1998) (“[T]he mere mention that
a defendant invoked his constitutional rights does not prima
facie establish a due process violation. Rather, . . . the State must,
in some way, use the defendant’s silence to undermine the
exercise of those rights guaranteed by the Fourteenth
Amendment.” (citations and internal quotation marks omitted)).

¶18 Here, Prosecutor elicited the following testimony from
Officer during direct examination:

[Prosecutor]: At any time during your investigation
of this matter did you make contact with the
defendant to ask him about these allegations that
had been made against him?
[Officer]: Yes, I did make contact with him.
[Prosecutor]: Did he agree to speak with you?
[Officer]: No, he did not.

Prosecutor never mentioned this again, much less “made use” of
this information in any way, and the court gave a curative
instruction to address any “negative inference” the jury may
have made of this isolated statement.

¶19 Further, Neilson has not argued, or shown, “the incident
so likely influenced the jury that [he] cannot be said to have had
a fair trial.” See Butterfield, 2001 UT 59, ¶ 46 (citation and internal
quotation marks omitted). We therefore conclude that the
district court did not abuse its discretion in denying Neilson’s
motion for a mistrial.

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State v. Neilson

II. Directed Verdict

¶20 Neilson next contends the district court should have sua
sponte directed a verdict on all counts because “the State
neglected to have any witness identify [him] in the courtroom as
the perpetrator of any of the charged offenses.” To succeed on
this claim, Neilson “must demonstrate that the district court
committed plain error.” State v. Phillips, 2006 UT App 211U,
para. 1 (citing State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993)).
“[T]o establish plain error, a defendant must demonstrate first
that the evidence was insufficient to support a conviction of the
crime charged and second that the insufficiency was so obvious
and fundamental that the trial court erred in submitting the case
to the jury.” State v. Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346.

¶21 Neilson argues that failing to direct a verdict was error
because identification is a crucial element to be proven in every
criminal case and that “‘a defendant cannot be convicted of a
crime except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.’”
(Quoting State v. Ellis, 2014 UT App 185, ¶ 17, 336 P.3d 26.)

¶22 But “identification can be inferred from circumstantial
evidence; therefore, direct, in-court identification is not
required.” State v. Isom, 2015 UT App 160, ¶ 23 n.2, 354 P.3d 791
(citation and internal quotation marks omitted). In this case, the
identity of the perpetrator was never an issue at trial. Child told
the interviewer that “Don” was the one who had abused her and
that he was a friend of Father’s. Neilson’s identity as the
perpetrator was further corroborated by Father’s testimony and
the testimony of Neilson himself. Both testified that Father and
Neilson had been good friends for several years and that Father
and Child stayed at Neilson’s house for several days at a time on
multiple occasions. There was never any suggestion that the
abuse may have been perpetrated by someone else. We conclude
there was sufficient circumstantial evidence of Neilson’s identity
as the perpetrator of the crimes charged and the district court

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State v. Neilson

therefore did not err in not directing a verdict in Neilson’s
favor.3

III. Sentence

¶23 Finally, Neilson contends the court “erred in imposing
consecutive sentences which result in a de facto life sentence due
to [his] age.” “We will not overturn a sentence unless a trial
court has abused its discretion, failed to consider all legally
relevant factors, or imposed a sentence that exceeds legally
prescribed limits.” State v. Gray, 2016 UT App 87, ¶ 23, 372 P.3d
715 (citation and internal quotation marks omitted). “In
determining whether state offenses are to run concurrently or
consecutively, the court shall consider the gravity and
circumstances of the offenses, the number of victims, and the
history, character, and rehabilitative needs of the defendant.”
Utah Code Ann. § 76-3-401(2) (LexisNexis 2012).

¶24 Neilson contends the court erred because it did not
consider all of the required statutory factors for sentencing;
specifically, he argues the court failed to consider his history of
minimal criminal involvement or his rehabilitative needs or
character. But Neilson does not support his contention. Instead,
he implies that because the court did not make specific findings
on these factors, it did not consider them. “[A]s a general rule
this court upholds the trial court even if it failed to make
findings on the record whenever it would be reasonable to

3. Neilson also states that the court indicated that identification
was going to be required and implies that this statement was in
reference to Neilson. But this is not the case. After Child’s
interview with Officer was played for the jury, the court told
Prosecutor, “I’ll require you . . . to call [Child] as your witness,
ask her her name— . . . age, whatever. You don’t have to ask
questions, but you have to identify the individual.” This
mandate to “identify the individual” refers to Child, not Neilson.

20140111-CA 8 2017 UT App 7
State v. Neilson

assume that the court actually made such findings.” 4 State v.
Helms, 2002 UT 12, ¶ 11, 40 P.3d 626 (citation and internal
quotation marks omitted). “[W]e will not assume that the trial
court’s silence, by itself, presupposes that the court did not
consider the proper factors as required by law.” Id.

¶25 Further, contrary to Neilson’s assertions, it appears from
the record that the court did consider these factors. At
sentencing, Neilson’s counsel pointed out that Neilson “has
never in his 54 years had any prior allegations or felony offenses
other than the alcohol offenses . . . noted in the pre-sentence
report, and certainly nothing of this nature.” Counsel also stated
that Neilson’s employer and coworker “spoke very highly of
him and also highly of his work ethic,” and discussed Neilson’s
generosity and “strong support system” of family and friends. In
addition, Adult Probation and Parole submitted a presentence
report to the court that summarized, among other things,
Neilson’s criminal history, employment and education history,
financial circumstances, alcohol use, and emotional and mental
stability. As Neilson acknowledges, he bears the burden to
demonstrate the district court “did not properly consider all the
[statutory] factors.” Helms, 2002 UT 12, ¶ 16. He has failed to
carry his burden.

¶26 Neilson also seems to argue the district court abused its
discretion by ordering his sentences to run consecutively
because this “result[s] in a de facto life sentence due to
[Neilson’s] age.” But this, by itself, does not demonstrate an
abuse of discretion. Our sentencing scheme allows for
consecutive sentences, Utah Code Ann. § 76-3-401(2) (LexisNexis
2012), and this court has determined that “it is not a per se abuse

4. This assumption should not be made, however, “where (1) an
ambiguity of facts makes the assumption unreasonable, (2) a
statute explicitly provides that written findings must be made,
or (3) a prior case states that findings on an issue must be made.”
State v. Helms, 2002 UT 12, ¶ 11, 40 P.3d 626.

20140111-CA 9 2017 UT App 7
State v. Neilson

of discretion to impose lengthy consecutive sentences.” Gray,
2016 UT App 87, ¶ 45; see also id. ¶¶ 24–44 (determining that
consecutive sentencing that resulted in “no reasonable
probability that [the defendant would] live to be paroled” was
not an abuse of discretion). Rather, Neilson “must demonstrate
that his sentence is ‘clearly excessive’ in some other way.” See id.
¶ 45. But Neilson merely asserts that the consecutive sentences
are an abuse of discretion and he does not support this
contention. “[H]e has not attempted to demonstrate that his
sentence exceeded the bounds of the court’s discretion.” 5 See id.

5. Notably, in the little more than two pages Nielson devotes to
the issue, he fails to even cite to the Utah Supreme Court's
decisions in State v. Galli, 967 P.2d 930 (Utah 1998), State v.
Smith, 909 P.2d 236 (Utah 1995), and State v. Strunk, 846 P.2d
1297 (Utah 1993), three cases that address core concerns about
the bounds of district court discretion in imposing consecutive
sentences. Although those cases have been distinguished in light
of subsequent legislation that accords discretion to the Board of
Pardons and Parole to parole defendants before the expiration of
the minimum mandatory component of a prison sentence, the
underlying principles retain significance in the sentencing
process. See State v. Gray, 2016 UT App 87, ¶ 44, 372 P.3d 715
(“Thus, the lesson of the Smith/Strunk/Galli line of cases remains
valid—that is, although the statutory context implicating the
relationship of consecutive sentencing and the Board's authority
to parole has changed, courts should still keep in mind the
central role that the Board's parole authority continues to play in
our indeterminate sentencing scheme when considering whether
to impose sentences consecutively.”). But the burdens of
adequate briefing lie with the parties, and we cannot take on the
role of an advocate ourselves where that burden is not met. See
Broderick v. Apartment Mgmt. Consultants, LLC, 2012 UT 17, ¶ 9,
279 P.3d 391 (“We will not assume a party’s burden of
argument.”). While we cannot say the result on appeal would
necessarily be different, the lack of meaningful analysis is
troubling.

20140111-CA 10 2017 UT App 7
State v. Neilson

Accordingly, we are not persuaded that the court abused its
discretion in ordering Neilson’s sentences to run consecutively. 6

6. It is possible that the court and the parties misunderstood the
sentencing statute with regard to consecutive sentencing. At the
sentencing hearing, the State highlighted, and Neilson
acknowledged, that section 76-3-401(3) states, “The court shall
order that sentences for state offenses run consecutively if the
later offense is committed while the defendant is imprisoned or
on parole, unless the court finds and states on the record that
consecutive sentencing would be inappropriate.” See Utah Code
Ann. § 76-3-401(3) (LexisNexis 2012) (emphasis added). The State
argued that consecutive sentences would not be inappropriate
given the serious nature of the offenses and Neilson’s
supervision history while on parole for a previous offense. It
appears the State understood section 76-3-401(3) to require that
Neilson’s sentences for his current convictions run
consecutively. But the statute merely requires that if a defendant
commits a crime while already on parole for a previous crime,
the subsequent sentence will run consecutively to the sentence
currently being served. See State v. Perkins, 2014 UT App 60, ¶ 12
n.2, 322 P.3d 1184 (stating that because the defendant was on
parole “at the time the offenses were committed, the trial judge
was required to run the new sentences consecutively to the older
sentence unless the judge specifically made a finding that
consecutive sentencing would be inappropriate” (citation and
internal quotation marks omitted)). It is possible the court may
have accepted the State’s reading of the statute, but it is not clear
from the record that the court applied it other than to run the
sentences in this case consecutively to the sentence Neilson was
already serving from a prior case. In pronouncing the sentence,
the court stated, “[U]nless it is inappropriate, the Court would
be bound to a 25 to life sentence. I received no information that
not only would that not be fully appropriate, but nothing that
would suggest it’s inappropriate. You were a convicted felon
when these occurred.” The district court concluded, “I don’t
(continued…)

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State v. Neilson

CONCLUSION

¶27 We conclude the district court did not err in denying
Neilson’s motion for a mistrial or in failing to direct a verdict on
the counts charged against him. In addition, Neilson did not
meet the burden required to show the district court abused its
discretion in ordering Neilson’s sentences to run consecutively.

¶28 Affirmed.

(…continued)
think there’s any act you could perpetrate that would be more
violative of societal interests at this point in time. So I am going
to sentence you to 15 to life on Counts I, II and III consecutively,
and 25 to life on Count IV.” It ordered that those sentences “be
consecutive with any other sentences existing in the State of
Utah or any other State.” In his brief, Neilson asserts the State
“misstated the statute” at the sentencing hearing. Neilson points
to the State’s argument, “[T]he Court should sentence him
consecutively in these matters. I don’t believe that there is reason
for the Court to find that it would be inappropriate to do so
when the statute says ‘shall, unless,’ and there’s no glaring
reason why it would be inappropriate.” Neilson asserts this is a
misreading of the statute because “[t]he statute does not speak to
glaring reasons.” Neilson thus seems to argue that the State
expands “inappropriate” to “glaring reasons.” But Neilson does
not argue that the court misapplied the statute and, although we
are concerned about the outcome of this case, “[w]e will not
assume a party’s burden of argument.” Broderick, 2012 UT 17,
¶ 9.

20140111-CA 12 2017 UT App 7