State v. Wells

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
2014 UT App 13
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
RONNIE R. WELLS,
Defendant and Appellant.
Memorandum Decision
No. 20120540-CA
Filed January 16, 2014
Seventh District Court, Moab Department
The Honorable Lyle R. Anderson
No. 111700111
Don M. Torgerson and Samuel P. Chiara,
Attorneys for Appellant
Sean D. Reyes and Brett J. DelPorto, Attorneys
for Appellee
SENIOR JUDGE PAMELA T. GREENWOOD authored this
Memorandum Decision, in which JUDGES GREGORY K. ORME and
MICHELE M. CHRISTIANSEN concurred.1
GREENWOOD, Senior Judge:
¶1 Defendant Ronnie R. Wells was charged with eight counts of
aggravated sexual abuse of a child and four counts of lewdness
involving a child, all arising from alleged incidents that occurred
during the summer of 2011. The eight-year-old victim (Child), her
older brother, and their little sister stayed with Wells and his wife

State v. Wells
2. Although referred to by the children as their grandparents,
neither Wells nor Grandmother is a biological grandparent of
Child.
20120540-CA 2 2014 UT App 13
(Grandmother) for a month that summer. During that stay, Child2
asked to talk with Grandmother in private. Child told Grandmother
that she had been playing a game with Wells that involved him
holding her upside down in the air and that while they were
playing, she thought she saw Wells’s penis and it made her
uncomfortable. Both Grandmother and Child briefly spoke to Wells
about the incident, and Wells apologized if anything had happened
that had made Child uncomfortable.
¶2 Sometime later during her stay, Child again asked to speak
with Grandmother. This time she reported that while she had been
playing truth or dare with Wells, he tickled her belly and legs, and
also tickled her between her legs. Grandmother talked to Wells
about this incident and also contacted the police.
¶3 Child subsequently claimed other instances of Wells
exposing himself and of inappropriate touching. She testified at trial
that on several occasions Wells had rubbed her vagina while
watching movies, sometimes under her underwear and sometimes
over it. She also testified that Wells had had her rub his penis
multiple times and that he touched her inside her vagina several
times. Additionally, she alleged that when Wells was carrying her
to her bed, after he would “go past the wall [where the bathroom
is],” he would then start rubbing her vagina. Child further alleged
that the instances where she saw Wells expose himself while she
was hanging in the air happened fifteen to twenty times that
summer.
¶4 The jury found Child’s testimony convincing and ultimately
convicted Wells on each of the twelve counts. After sentencing,
Wells timely appealed.

State v. Wells
3. Counsel for Wells in this appeal also served as trial counsel.
Some Utah cases have declared that trial counsel should not act as
counsel on a direct appeal that asserts ineffective assistance of
counsel. See State v. Litherland, 2000 UT 76, ¶ 9, 12 P.3d 92 (citing
State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991)); State v. Garrett,
849 P.2d 578, 580 n.3 (Utah Ct. App. 1993) (citing Jensen v. DeLand,
795 P.2d 619, 621 (Utah 1989)). The rationale underlying these
declarations appears to be that it is unreasonable to expect counsel
to critique his or her own performance, see Jensen, 795 P.2d at 621,
and that the record may be inadequate to permit meaningful
review by an appellate court, see Humphries, 818 P.2d at 1029. In
this case, the State has challenged neither Wells’s trial counsel’s
continued representation on appeal nor this court’s ability to
address the merits of the case. Furthermore, we believe that the
record is adequate to address the claim of ineffectiveness of trial
counsel and that judicial economy will be advanced by addressing
(continued...)
20120540-CA 3 2014 UT App 13
¶5 Wells challenges the sufficiency of the evidence to support
his convictions. “As a general rule, claims not raised before the trial
court may not be raised on appeal. . . . [This] preservation rule
applies to every claim, including constitutional questions, unless a
defendant can demonstrate that ‘exceptional circumstances’ exist or
‘plain error’ occurred.” State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346
(specifically applying the preservation rule to a claim of insufficient
evidence). When arguing either of these exceptions, appellants are
required “to articulate the justification for review in the party’s
opening brief” or else their claims are procedurally barred. State v.
Weaver, 2005 UT 49, ¶ 19, 122 P.3d 566. Wells did not raise a
challenge to the sufficiency of the evidence before the trial court,
nor did he argue any exception to the preservation rule until his
reply brief on appeal. Thus, Wells’s sufficiency claim is
procedurally barred.
¶6 Wells also argues that his trial counsel was ineffective for
failing to file a motion to arrest judgment before sentencing. “[A]3

State v. Wells
(...continued)
the issue at this point. See id. (determining that judicial economy
would be served in addressing the merits of the case, as opposed
to leaving the issue to postconviction proceedings, where the court
was “not aware of any evidence or argument which might be made
that is not now before [it]”).
20120540-CA 4 2014 UT App 13
defendant raising an ineffectiveness claim must show first, that his
counsel rendered a deficient performance in some demonstrable
manner, which performance fell below an objective standard of
reasonable professional judgment and, second, that counsel’s
performance prejudiced the defendant.” State v. Kelley, 2000 UT 41,
¶ 25, 1 P.3d 546 (citation and internal quotation marks omitted). “To
establish prejudice, [a] defendant must show a reasonable
probability . . . that except for ineffective counsel, the result would
have been different.” Id. (omission in original) (citation and internal
quotation marks omitted). Consequently, “[f]ailure to raise futile
objections does not constitute ineffective assistance of counsel.” Id.
¶ 26.
¶7 To determine whether filing a motion to arrest judgment
would have been futile, we evaluate whether the evidence
presented at trial was so questionable that such a motion would
have caused the trial court to reverse the jury verdict. “[T]he court
may only reverse a jury verdict 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.’” State v.
Robbins, 2009 UT 23, ¶ 14, 210 P.3d 288 (quoting State v. Bluff, 2002
UT 66, ¶ 63, 52 P.3d 1210). As we conduct our evaluation, we
“‘review the evidence and all reasonable inferences that may fairly
be drawn therefrom in the light most favorable to the jury verdict.’”
Id. (quoting State v. Colwell, 2000 UT 8, ¶ 11, 994 P.2d 177).
¶8 Wells argues that due to Child’s inherently improbable
testimony there was insufficient evidence to support the verdict.

State v. Wells
20120540-CA 5 2014 UT App 13
“Though the court must ordinarily accept the jury’s determination
of witness credibility, when the witness’s testimony is inherently
improbable, the court may choose to disregard it.” Id. ¶ 16.
However, such circumstances are quite limited, in that the trial
court may “reevaluate the jury’s credibility determinations only in
those instances where (1) there are material inconsistencies in the
testimony and (2) there is no other circumstantial or direct evidence
of the defendant’s guilt.” Id. ¶ 19. We address each of these
requirements.
¶9 First, it does not appear that there are material inconsistencies
in Child’s testimony. Wells argues that Child’s trial testimony and
her original reports to Grandmother were inconsistent. Although
Child’s trial testimony alleged additional instances of abuse as
compared to her initial reports to Grandmother, it does not appear
that the separate disclosures were actually inconsistent. The only
specific inconsistency between them that Wells asserts is that
Grandmother questioned Child as to whether Wells touched her
under her clothing and she responded that he had not, yet at trial
Child testified of instances of touching under her clothing.
However, reading the statement in context, it is clear that Child’s
response to Grandmother was limited to the specific truth-or-dare
incident and was not a broad assertion that Wells had never
touched her under her clothing. And the simple fact that Child
alleged additional abuse later does not make Child’s testimony
inherently improbable. Indeed, at Wells’s sentencing hearing, the
trial court noted a possible reasoning behind the jury crediting the
later testimony:
The initial disclosure was basically what Mr. Wells
acknowledged on the stand, and then [Child] made
much larger disclosures when she was interviewed.
That doesn’t necessarily mean she wasn’t telling the
truth. It might have been she was floating the idea

State v. Wells
4. Wells argues that the trial court’s statements at sentencing
constituted “uncharacteristic[]” “reservations and concerns about
the jury verdict.” We do not agree with that description of the
statements, especially given the excerpt of those remarks we have
included.
20120540-CA 6 2014 UT App 13
first to see whether she’d get some support, and once
she did she decided she’d tell the whole story.[ ]4
Thus, notwithstanding the differences between the reports, Child’s
multiple disclosures were not inconsistent, but merely cumulative,
and simply added more details in the later statements.
¶10 Wells also argues that there were inconsistencies within
Child’s trial testimony as to the number of times abuse occurred
and that it was improbable that he could have abused Child so
frequently without Grandmother witnessing it. Child was indeed
sometimes inconsistent when identifying the exact number of times
certain acts happened, describing fewer incidents when first
examined and then describing slightly more incidents on cross-
examination. However, “it is not unusual that a child’s testimony
be somewhat inconsistent, especially in sexual abuse cases.” State v.
Virgin, 2006 UT 29, ¶ 38, 137 P.3d 787. And this type of
inconsistency alone does not necessarily make a child’s testimony
inherently improbable. See Robbins, 2009 UT 23, ¶ 22 (“[The victim’s]
denial of any abuse to two investigators, her inconsistent accounts
regarding the extent of the physical abuse she suffered, her age when the
abuse occurred, and what she was wearing at the time of abuse may
alone be insufficient to invoke the inherent improbability
exception.” (emphasis added)).
¶11 Nor does the alleged frequency of abuse make Child’s
testimony inherently improbable. Wells argues that if we were to
believe that all of the incidents alleged occurred and were not
observed by others, that would mean “an incident of aggravated
sexual assault . . . occurred, on average, multiple times each day”

State v. Wells
5. Wells argues that it is improbable that Child did not remember
the details of what she and Wells were wearing or what movie they
were watching when she was first touched under the blanket.
However, Child remembered that she was wearing pajama pants
and she remembered other details from the episode, such as where
each person in the room was seated while watching the movie.
Also, when discussing other episodes of abuse, Child remembered
what Wells was wearing and some of the specific movies they were
watching.
20120540-CA 7 2014 UT App 13
over the one-month period. However, considering that the abuse
was alleged to have lasted only a few minutes each time and that it
usually occurred either under a blanket while others in the room
were watching a movie or after passing “the wall” as Wells was
putting Child to bed, this could adequately explain the fact that
Grandmother never witnessed the abuse. Further, even if the jury
was not confident of Child’s ability to remember the exact number
of times the abuse occurred, the jury could have reasonably
determined from the remainder of the testimony—where specific
instances were discussed, including supporting details — that the5
abuse happened often enough to support the eight counts of
aggravated sexual abuse and the four counts of lewdness.
¶12 Wells also argues that Child’s testimony is inherently
improbable because she “never demonstrated much emotion” and
“fabricated a story about keeping track on a notebook” of the times
the abuse happened. Wells makes his judgments regarding Child’s
lack of emotion from a few phrases in her testimony, such as her
descriptions of being “kinda shocked” and feeling “kinda bad,”
“kind of uncomfortable,” and “not too good.” However, the trial
judge remarked at sentencing that Child “sounded like she was
talking about something that really happened,” and the jury could
have easily arrived at the same conclusion. Reading witnesses’
demeanor is a task best left to those actually hearing the testimony,
and we cannot reliably glean such information from a cold record.
See Henshaw v. Henshaw, 2012 UT App 56, ¶ 12, 271 P.3d 837

State v. Wells
20120540-CA 8 2014 UT App 13
(“[T]rial courts have the benefit of viewing the witnesses firsthand,
to assess their demeanor and to consider their testimonies in the
context of the proceedings as a whole, making them much better
equipped to make credibility determinations based on conflicting
oral evidence than an appellate court that has access only to the
cold record.” (citing State v. Calliham, 2002 UT 86, ¶ 23, 55 P.3d
573)). As to Child’s assertion regarding the notebook, certainly
“patently false statements” made to cover up testimony
inconsistencies can sometimes be considered indicative of
inherently improbable testimony. State v. Robbins, 2009 UT 23,
¶¶ 22–23, 210 P.3d 288 (considering that the victim tried to cover up
inconsistencies by “ma[king] up a story about a hearing problem”
and claiming that she had been worried about an eavesdropper in
the closet, when the room she was in had no closet). However,
Child’s claim of keeping a journal in the purple dresser at
Grandmother’s house was not patently false, but simply unverified.
At sentencing the State explained that it “ha[d] no idea” whether
the notebook existed and that there was no journal in evidence
because the first mention of it was in response to defense counsel’s
question at trial.
¶13 Second, there were multiple pieces of evidence in addition to
Child’s testimony that corroborated her allegations of abuse.
Child’s brother testified that when they were watching a movie and
Wells and Child were under the blanket, he would see “a bump in
the blanket” that he thought was Wells’s hand moving toward
Child. Child’s brother also testified that Child had told him that
Wells was touching her inappropriately. Also, Wells himself
admitted to two of the incidents, although he claimed that they
were accidental. Because there is other evidence beyond Child’s
testimony that supports Wells’s guilt, the trial court would be
precluded from providing relief under the inherently improbable
testimony theory. Id. ¶ 19 (“The existence of any additional
evidence supporting the verdict prevents the judge from
reconsidering the witness’s credibility.”).

State v. Wells
20120540-CA 9 2014 UT App 13
¶14 In sum, “the court may choose to exercise its discretion to
disregard inconsistent witness testimony only when the court is
convinced that the credibility of the witness is so weak that no
reasonable jury could find the defendant guilty beyond a
reasonable doubt.” Id. ¶ 18. This standard has not been met here,
and the trial court could not have disregarded Child’s testimony
even had trial counsel petitioned for such in a motion to arrest
judgment. Therefore, the filing of such a motion would have been
futile, and Wells’s counsel was not ineffective in this regard.
Consequently, we affirm.