State v. Daughton

2013 UT App 170
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
PHILIP VICTOR DAUGHTON,
Defendant and Appellant.

Memorandum Decision
No. 20110276‐CA
Filed July 11, 2013

Fifth District, St. George Department
The Honorable Eric A. Ludlow
No. 081501831

Gary G. Kuhlmann and Nicolas D. Turner,
Attorneys for Appellant
John E. Swallow and Jeffrey S. Gray, Attorneys for
Appellee

JUDGE CAROLYN B. MCHUGH authored this Memorandum
Decision, in which JUDGES GREGORY K. ORME and JAMES Z. DAVIS
concurred.

McHUGH, Judge:

¶1 Philip Victor Daughton appeals from his convictions and
sentences for sodomy on a child, a first degree felony, see Utah
Code Ann. § 76‐5‐403.1(1)–(2) (LexisNexis 2008),1 sexual abuse of
a child, a second degree felony, see id. § 76‐5‐404.1(2)–(3), and
lewdness involving a child, a class A misdemeanor, see id. § 76‐9‐

1. Unless otherwise noted, throughout this memorandum decision
we cite the 2008 version of the Utah Code, which reflects the
version in effect at the time Daughton was charged.
State v. Daughton

702.5(1), (2)(a). We affirm Daughton’s convictions, but we vacate
the trial court’s sentencing order and remand for further sentencing
proceedings.

¶2 Daughton’s three convictions stem from sexual abuse that
he committed against a child (Child) in Washington, Utah, on a
single day in 2002. Daughton was charged on October 23, 2008,
shortly after Child first reported the abuse to authorities. Before
trial, Daughton moved to suppress certain evidence involving
allegations of other acts. The trial court granted this motion and
ruled that any evidence regarding or alluding to allegations of
other misconduct would be excluded at trial pursuant to the Utah
Rules of Evidence.

¶3 On January 19, 2011, an eight‐member jury was selected but
not sworn. Before the jury was excused and before the court
adjourned for the day, the trial court advised the jury members,
stating,

It’s absolutely necessary that you remain fair and
impartial during this trial. Maintain an open mind
until the evidence and arguments are completed.
During this recess and every break in this trial, do
not discuss this case with anyone or amongst
yourselves. Do not allow anyone to discuss the case
in your presence. Do not talk to or communicate with
me or any other participant in this trial.

¶4 The following day, a local newspaper, The Spectrum,
published an article (the Article) containing information excluded
by the trial court’s order. When proceedings resumed that same
day, the trial court polled each juror individually in chambers to
discern whether anyone had read the Article. Only one juror, Juror
18, indicated that she had read some of The Spectrum that morning.
When the trial court sought clarification and asked Juror 18 if she
“read anything pertaining to this case,” Juror 18 responded,
“Absolutely not.”

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State v. Daughton

¶5 After questioning each juror, the trial court brought three
jurors, including Juror 18, into chambers to ask a follow‐up
question. The trial court explained to these three jurors, “You have
indicated you have not read this morning’s newspaper.” The trial
court then asked these jurors if they had spoken to anyone who
had read The Spectrum. Juror 18 replied, “No one.”

¶6 The trial court concluded, “The record shall reflect that we
have now individually spoken to each of the eight jurors. None of
them have read this morning’s [The Spectrum] newspaper.”
Nevertheless, Daughton’s trial counsel moved to dismiss the jury
and set another trial date, arguing that the questions posed to the
jurors imply that “there is an article in [The Spectrum] that’s
derogatory to [Daughton].” The trial court denied the motion,
noting that the jury might just as reasonably infer that The Spectrum
reported that the allegations against Daughton are false. The trial
court stated, “I’m satisfied that from what the jurors have told me
that they have not read the article. So I do not believe they have
been tainted.” Trial counsel did not object to the thoroughness of
the trial court’s examination of the jurors or request that they be
asked additional questions concerning the Article.

¶7 Upon returning to open court, the jury was sworn and the
trial proceeded. The jury convicted Daughton on all three counts.
The trial court sentenced Daughton to an indeterminate prison
term of twenty‐five years to life for the crime of sodomy on a child,
a prison term of one to fifteen years for the crime of sexual abuse
of a child, and one year in prison for the crime of lewdness
involving a child. The trial court ordered the first two felony
sentences to be served consecutively and the sentence for the
misdemeanor to be served concurrently. Daughton timely appeals
from his convictions and sentences.

¶8 First, Daughton concedes that trial counsel did not preserve
the issue but argues that the trial court committed plain error by
failing to adequately poll the jury regarding inherently prejudicial
publicity. “[I]n general, appellate courts will not consider an issue,

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State v. Daughton

including constitutional arguments, raised for the first time on
appeal unless the trial court committed plain error or the case
involves exceptional circumstances.” State v. Dean, 2004 UT 63,
¶ 13, 95 P.3d 276. “To demonstrate plain error, a defendant must
establish that (i) an error exists; (ii) the error should have been
obvious to the trial court; and (iii) the error is harmful, i.e., absent
the error, there is a reasonable likelihood of a more favorable
outcome for the [defendant].” Id. ¶ 15 (citation and internal
quotation marks omitted). “If any one of these requirements is not
met, plain error is not established.” Id. (citation and internal
quotation marks omitted).

¶9 Daughton argues that the trial court erred because it did not
adequately question Juror 18. Although the State concedes that the
Article discussed excluded evidence and was inherently
prejudicial, it contends that the trial court’s questioning of the jury
was sufficient to ensure that the jury was not tainted.

¶10 In State v. Clark, 675 P.2d 557 (Utah 1983), the Utah Supreme
Court instructed that “when requested by counsel to poll the jury
regarding publicity during the trial, the trial court must rule as a
matter of law whether the publicity is potentially prejudicial or not
prejudicial at all.” Id. at 560–61. “If the publicity is potentially
prejudicial, then the [trial] court must question the jurors regarding
their exposure and their understanding of it.” Id. at 561. The
supreme court also explained that the publication of excluded
evidence falls in the category of inherently prejudicial publicity. Id.
at 560.

¶11 In this case, both parties agree that the Article was
inherently prejudicial to Daughton because it contained
information specifically excluded by the trial court. Because of the
risk of prejudice that could result from the jury’s exposure to the
Article, the trial court questioned each juror individually in camera
with counsel present. Only one juror, Juror 18, indicated that she
had read The Spectrum that morning. The trial court’s complete
interview of Juror 18 proceeded as follows,

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State v. Daughton

THE COURT: [Juror 18], let me ask, today, prior to
coming to court, did you by any chance read The
Spectrum newspaper?

[JUROR 18]: I did.

THE COURT: Okay. Was there anything that you—

[JUROR 18]: Absolutely. I didn’t see anything. I saw
that (inaudible) something. I didn’t read the whole
thing.

THE COURT: Okay.

[JUROR 18]: I was trying to think.

THE COURT: Did you read anything pertaining to
this case?

[JUROR 18]: Absolutely not.

THE COURT: All right. [Juror 18], I am going to have
you go back in the jury room with my bailiff. Please
do not discuss anything that we have discussed in
here. . . .

....

THE COURT: Just a follow‐up question. You have
indicated you have not read this morning’s
newspaper. Have you spoken to anyone who has
read The Spectrum newspaper?

[JUROR 18]: No one.

¶12 Daughton argues that Juror 18’s “responses to the trial
court’s polling questions are contradictory” and therefore “it

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State v. Daughton

should have been obvious to the trial court that it needed to ask
[Juror 18] to clarify her contradictions regarding her exposure to
the article in question.” In particular, Daughton asks us to infer
from the inaudible portion2 of Juror 18’s response that Juror 18 had
read some potentially relevant information and that the trial court
should have inquired further into the specific material that Juror 18
had seen.

¶13 However, a fair reading of the transcript indicates that Juror
18 admitted to having read parts of The Spectrum that morning.
When the trial court began further questioning, Juror 18 stated,
“Absolutely. I didn’t see anything. I saw that (inaudible)
something. I didn’t read the whole thing.” Although this statement
is confusing as to whether Juror 18 read some part of the Article,
the trial court continued its examination by asking directly, “Did
you read anything pertaining to this case?” Juror 18 unequivocally
responded, “Absolutely not.” Thus, despite the initial confusion,
the trial court adequately inquired and clarified that Juror 18 had
not been exposed to the prejudicial publicity. The trial court was in
the best position to assess the truthfulness of Juror 18’s statement

2. Daughton did not move to supplement the record in order to
clarify the inaudible statement of Juror 18. See generally Utah R.
App. P. 11(h) (“If anything material to either party is omitted from
the record by error or accident or is misstated, the parties by
stipulation, the trial court, or the appellate court, either before or
after the record is transmitted, may direct that the omission or
misstatement be corrected and if necessary that a supplemental
record be certified and transmitted.”). “We generally assess as
negligible the damage caused by missing testimony that
contradicts other testimony . . . .” State v. Gardner, 2007 UT 70, ¶ 23,
167 P.3d 1074. Additionally, defendants on direct appeal bear the
burden of assuring the record is adequate, see State v. Litherland,
2000 UT 76, ¶ 16, 12 P.3d 92, and the missing portions of a record
are presumed to support the action of the trial court, State v.
Theison, 709 P.2d 307, 309 (Utah 1985) (per curiam).

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State v. Daughton

that even though she had read some of The Spectrum that day, she
had not read the Article related to Daughton’s case. See Hale v. Big
H Constr., Inc., 2012 UT App 283, ¶ 16, 288 P.3d 1046 (“Assessing
the credibility of a witness is within the trial court’s domain.”).
Indeed, we “presum[e] that the trial judge, having personally
observed the quality of the evidence, the tenor of the proceedings,
and the demeanor of the parties, is in a better position to perceive
the subtleties at issue than we can looking only at the cold record.”
State v. Calliham, 2002 UT 86, ¶ 23, 55 P.3d 573. Furthermore,
although the transcriber was unable to understand all of Juror 18’s
response to one of the trial court’s questions, it may have been
audible to the court and counsel at the time. Nevertheless, both the
court and counsel were satisfied that Juror 18 had not read the
Article.

¶14 The trial court adequately performed its duty under State v.
Clark, 675 P.2d 557 (Utah 1983), to poll the jury regarding the
Article.3 See id. at 560–61. Hence, Daughton has not demonstrated
plain error because the trial court did not err. See State v. Dean, 2004
UT 63, ¶ 15, 95 P.3d 276 (“If any one of the[] requirements [of plain
error] is not met, plain error is not established.” (citation and
internal quotation marks omitted)).

¶15 Next, Daughton claims that he was denied his constitutional
right to the effective assistance of counsel. “An ineffective

3. We are equally unpersuaded by Daughton’s suggestion that the
trial court was required to dismiss the jury because the trial court’s
questioning prejudiced the jury by implying that The Spectrum
reported material harmful to Daughton. Even if the trial court had
released these particular jurors because the Article included
inherently prejudicial information, another jury selection process
inevitably would require a similar inquiry into whether the new
panel of potential jurors had been exposed to the Article or other
media related to Daughton’s case. See State v. Clark, 675 P.2d 557,
560–61 (Utah 1983). Moreover, Daughton does not directly
challenge the denial of his motion to dismiss the jury on appeal.

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State v. Daughton

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). In order to
establish that he was deprived of his Sixth Amendment right to
effective assistance of counsel, Daughton must establish “(A) that
counsel’s performance was so deficient as to fall below an objective
standard of reasonableness and (B) that but for counsel’s deficient
performance there is a reasonable probability that the outcome of
the trial would have been different.” See State v. Hales, 2007 UT 14,
¶ 68, 152 P.3d 321 (citation and internal quotation marks omitted);
see also Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984).
“For this court to hold that counsel acted in an objectively deficient
manner, we must be persuaded that there was a lack of any
conceivable tactical basis for counsel’s actions.” State v. Phillips,
2012 UT App 286, ¶ 11, 288 P.3d 310 (citation and internal
quotation marks omitted). We “will not second‐guess trial
counsel’s legitimate strategic choices, however flawed those
choices might appear in retrospect.” State v. Tennyson, 850 P.2d 461,
465 (Utah Ct. App. 1993) (citing Strickland, 466 U.S. at 689).

¶16 Daughton asserts that his trial counsel performed deficiently
by failing to request that the trial court further question Juror 18 in
order to assess whether she was exposed to inherently prejudicial
material. This claim relies on his assertion that the trial court’s
polling of the jury was inadequate. But as we have already
determined, the trial court’s polling of the jury was sufficiently
thorough to establish that the jurors, including Juror 18, had not
read the Article. See supra ¶¶ 13–14. Consequently, Daughton’s trial
counsel did not perform deficiently. See State v. Whittle, 1999 UT 96,
¶ 34, 989 P.2d 52 (“[T]he failure of counsel to make motions or
objections which would be futile if raised does not constitute
ineffective assistance.” (alteration in original) (citation and internal
quotation marks omitted)). Likewise, because we defer to the trial
court’s assessment that Juror 18 truthfully reported that she did not
read the Article, Daughton cannot establish prejudice. See
Strickland, 466 U.S. at 700 (“Failure to make the required showing

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State v. Daughton

of either deficient performance or sufficient prejudice defeats the
ineffectiveness claim.”).

¶17 Moreover, Daughton’s trial counsel may have had a tactical
reason for not asking for additional examination of the jurors. In
Clark, the Utah Supreme Court explained that polling the jury
every day regarding all media treatment of the trial would be a
procedure that “could, in fact, work to a defendant’s disadvantage
by annoying the jurors and creating an atmosphere of suspicion
and distrust.” See Clark, 675 P.2d at 560. Indeed, trial counsel here
expressed concern that “the very question [whether they had read
The Spectrum] indicates and probably implies to them they could
infer that there is an article in there that’s derogatory to
[Daughton].” We cannot say that trial counsel lacked a conceivable
basis for not requesting that the trial court make further inquiry
regarding the Article. Thus, Daughton cannot show that his trial
counsel performed deficiently and, as a result, cannot establish
ineffective assistance of counsel. See Strickland, 466 U.S. at 700.

¶18 Finally, Daughton challenges the trial court’s sentencing
decisions. “The trial court has substantial discretion in conducting
sentencing hearings and imposing a sentence, and we will in
general overturn the trial court’s sentencing decisions only if we
find an abuse of discretion.” State v. Patience, 944 P.2d 381, 389
(Utah Ct. App. 1997) (citations omitted). “However, a sentence that
is beyond the authorized statutory range constitutes an illegal
sentence that may be corrected at any time.” State v. Bryant, 2012
UT App 264, ¶ 9, 290 P.3d 33 (citation and internal quotation marks
omitted); see also State v. Thorkelson, 2004 UT App 9, ¶ 15, 84 P.3d
854 (“A ‘patently’ or ‘manifestly’ illegal sentence generally occurs
in one of two situations: (1) where the sentencing court has no
jurisdiction, or (2) where the sentence is beyond the authorized
statutory range.”).

¶19 On appeal, Daughton argues that the trial court erred when
it “failed to give adequate weight to . . . mitigating factors” in
sentencing him to consecutive, rather than concurrent, terms.

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State v. Daughton

Specifically, Daughton contends that the trial court gave inordinate
weight to Child’s comments when it imposed consecutive
sentences. In response, the State concedes that resentencing is
required, but for a different reason. The State calls our attention to
the fact that “the trial court imposed the incorrect statutory
sentence for sodomy on a child.”4

¶20 When the Legislature alters the penalty for a crime
after a defendant has allegedly committed the crime
but before sentencing, the new statute—the one in
effect at the time of sentencing—is applied so long as
“it does not raise a Constitutional question of being
an ex post facto law by reason of increasing the
punishment.”

State v. Dominguez, 1999 UT App 343, ¶ 11, 992 P.2d 995 (quoting
Belt v. Turner, 483 P.2d 425, 426 (Utah 1971)); see also U.S. Const.
art. I, § 10, cl. 1 (“No State shall . . . pass any . . . ex post facto
Law . . . .”); Utah Const. art. I, § 18 (“No . . . ex post facto law . . .
shall be passed.”). “An ex post facto law is one . . . which makes
more burdensome the punishment for a crime, after its
commission . . . .” Monson v. Carver, 928 P.2d 1017, 1026 (Utah 1996)
(citation and internal quotation marks omitted). Because of this
constitutional concern, when “[an] amendment increases the
punishment” for an offense between the time of the crime’s
commission and the time of sentencing, “the sentence should be
determined according to the law in effect on the date the crime was
committed.” Dominguez, 1999 UT App 343, ¶ 11.

¶21 At the time Daughton committed the offenses in 2002,
twenty‐five years to life in prison was not a sentencing option for
the crime of sodomy on a child. Rather, the Utah Code provided

4. We commend the State’s counsel for his professionalism and
candor in raising this important issue and conceding that the
sentence is illegal.

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State v. Daughton

that the crime was “punishable by imprisonment for an
indeterminate term of not less than 6, 10, or 15 years and which
may be for life.” Utah Code Ann. § 76‐5‐403.1(2) (LexisNexis 1999).
The Utah Legislature subsequently amended the sentencing
options for this crime. As a result, when Daughton was charged in
2008, section 76‐5‐403.1 had been amended to increase the
punishment for this crime to “not less than 25 years and which may
be for life.” See id. § 76‐5‐403.1(2)(a) (2008). The trial court’s
imposition of the 2008 sentencing option of twenty‐five years to life
exceeds the statutory range permitted in 2002 and constitutes “an
impermissible ex post facto application of law in regard to”
Daughton. See Bryant, 2012 UT App 264, ¶ 16. Accordingly, the trial
court erred when it applied the 2008 version of Utah Code section
76‐5‐403.1 to sentence Daughton to twenty‐five years to life for a
crime he committed in 2002.5

¶22 In sum, the trial court did not err and Daughton’s trial
counsel was not ineffective because the jury was adequately polled
regarding the Article. We therefore affirm Daughton’s convictions.
However, we vacate Daughton’s sentence for sodomy on a child
and remand for resentencing in accordance with the statute in
effect when Daughton committed the offenses in 2002.

¶23 Affirmed, in part, and reversed and remanded, in part.

5. Because we remand for resentencing due to the imposition of an
illegal sentence, we need not reach the merits of Daughton’s
argument that the trial court exceeded its discretion in ordering
consecutive sentences. In determining whether to impose
concurrent or consecutive sentences on remand, the trial court
“shall consider the gravity and circumstances of the offenses, the
number of victims, and the history, character, and rehabilitative
needs of [Daughton].” See Utah Code Ann. § 76‐3‐401(2)
(LexisNexis 2012).

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