State v. Waldoch

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                          Appellee,
                              v.
                    PAUL DUBRAE WALDOCH,
                          Appellant.

                     Memorandum Decision
                        No. 20140851-CA
                      Filed March 24, 2016

             Sixth District Court, Kanab Department
                The Honorable Marvin D. Bagley
                          No. 111600055

             J. Bryan Jackson, Attorney for Appellant
           Sean D. Reyes and John J. Nielsen, Attorneys
                          for Appellee

 SENIOR JUDGE RUSSELL W. BENCH authored this Memorandum
Decision, in which JUDGE J. FREDERIC VOROS JR. concurred. JUDGE
 MICHELE M. CHRISTIANSEN concurred in part and concurred in
                the result in part, with opinion. 1

BENCH, Senior Judge:

¶1     Paul Dubrae Waldoch appeals his convictions of one
count of object rape, a first-degree felony, and two counts of
forcible sexual abuse, each a second-degree felony. We affirm.

¶2    Waldoch first asserts that the evidence was insufficient to
support a finding of penetration and therefore could not support
a conviction for object rape. “In assessing a claim of insufficiency


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. Waldoch


of the evidence, we review the evidence and all inferences which
may reasonably be drawn from it in the light most favorable to
the verdict of the jury” and will “reverse only when the
evidence, so viewed, is sufficiently inconclusive or inherently
improbable that reasonable minds must have entertained a
reasonable doubt that the defendant committed the crime of
which he or she was convicted.” State v. Nielsen, 

, 

 (citations and internal quotation marks
omitted).

¶3    A person commits object rape when the person,

      without the victim’s consent, causes the
      penetration, however slight, of the genital or anal
      opening of another person who is 14 years of age
      or older, by any foreign object, substance,
      instrument, or device, including a part of the
      human body other than the mouth or genitals, with
      intent to cause substantial emotional or bodily pain
      to the victim or with the intent to arouse or gratify
      the sexual desire of any person.

(1) (LexisNexis Supp. 2014). Utah
case law defines “penetration” as “entry between the outer folds
of the labia.” State v. Simmons, 

 (Utah 1988).

¶4     At trial, the victim testified that Waldoch put his finger
“into” her vagina and further explained, “He stuck his finger
inside of me, finger or fingers, I’m not sure. . . . [H]e kept
sticking his finger inside me and rubbing me really hard.”
Likewise, in her statement in the police report, the victim
emphasized, “He did penetrate me with his fingers . . . .” The
physician’s assistant (PA) who examined the victim after the
assault testified that the victim reported “manual” vaginal
penetration, specifically, that Waldoch’s “[f]ingers penetrated
[her] vaginal area.” Although the PA’s report indicated that the
victim had “hesitated to come in reporting because there was no


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                         State v. Waldoch


actual penetration,” the PA clarified at trial that the statement
“was made in reference to lack of penile penetration.” The PA
pointed out that on the emergency room form he had circled
“vaginal penetration” and then handwritten next to it “with
hand.” A nurse who participated in the exam and collected DNA
evidence testified that she observed an abrasion on the outside
of the victim’s labia and another on the inside of her labia. The
nurse testified that the victim told her Waldoch had
“penetrated” her vagina with his hand and further testified that
the victim’s injuries were consistent with the victim’s description
of the assault. And on the forensic report form, the nurse
indicated that there was penetration “by hand to vagina.” The
contrary evidence emphasized by Waldoch—the fact that he was
excluded as a contributor to a saliva sample taken from the
victim’s neck, the inconsistencies in the PA’s report regarding
penetration, and the testimony of Waldoch’s expert witness that
the victim’s injuries were inconsistent with penetration 2—does
not make the evidence supporting the verdict so “inconclusive
or inherently improbable that reasonable minds must have
entertained a reasonable doubt” regarding the penetration
element. See Nielsen, 

 (emphasis added) (citation
and internal quotation marks omitted). Rather, that evidence
presented a credibility question for the jury.3


2. Waldoch’s expert opined, “Penetration occurs once you are
through the hymenal rim into the vagina” and then explained,
“There’s no injury and no evidence—no physical evidence of
any penetration in the hymen or in the vagina at all on the
exam.” But because the expert defined penetration more
narrowly than does Utah law, the expert’s testimony that the
victim’s injuries were inconsistent with penetration is not
particularly helpful.

3. Waldoch’s argument suggesting that the victim’s injuries were
consistent with consensual activity likewise fails to convince us
                                                    (continued…)


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                         State v. Waldoch


¶5      Waldoch next argues that the trial court erred in allowing
a husband and wife to serve together on the jury 4 and that the
trial court did not adequately admonish the jury not to discuss
the case. These issues were not preserved for our review. See
State v. Holgate, 

, 

 (“As a general rule,
claims not raised before the trial court may not be raised on
appeal.”). Thus, we decline to address them except to the extent
that Waldoch has asserted that his claims fall under an exception
to the preservation rule—plain error, ineffective assistance of
counsel, or exceptional circumstances. See State v. Cram, 

, 

.

¶6      Although Waldoch mentions these exceptions in passing,
his analysis of how those exceptions might apply to this case is
inadequate. See State v. Thomas, 

 (Utah 1998) (“It
is well established that a reviewing court will not address
arguments that are not adequately briefed.”). As to his plain
error argument, he merely asserts that the trial court should
not have allowed the husband and wife to serve together but
fails to explain why this alleged error should have been obvious
to the trial court. His ineffective assistance and exceptional
circumstances arguments are likewise cursory: he baldly asserts
that allowing a husband and wife to serve on a jury together is
“a rare procedural anomaly” and that trial counsel erred “in
allowing a husband and wife [to] serve together on the jury
without objecting or insisting that the jury be admonished more
completely,” but he does not develop those assertions or cite
supporting authority. See Utah R. App. P. 24(a)(9) (indicating


(…continued)
that the jury could not have found lack of consent beyond a
reasonable doubt based on the victim’s testimony.

4. The wife was impaneled as an alternate juror and was
ultimately dismissed before jury deliberations.




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                         State v. Waldoch


that an appellant’s brief “shall contain the contentions and
reasons of the appellant with respect to the issues presented,
including the grounds for reviewing any issue not preserved in
the trial court, with citations to the authorities, statutes, and
parts of the record relied on”).

¶7      In any event, Waldoch has failed to establish that he was
prejudiced as a result of the husband and wife serving together
or the trial court’s failure to admonish the jury before short
recesses, see Utah R. Crim. P. 17(k) (requiring the trial court to
admonish the jury at “each recess of the court” “not to converse
among themselves or to converse with, or suffer themselves to
be addressed by, any other person on any subject of the trial”
and “not to form or express an opinion thereon until the case is
finally submitted to them”). The trial court admonished the jury
not to talk about the case before a ten-minute break during jury
selection, before a lunch break following jury selection, in the
opening jury instructions, at the end of the first day of trial, and
before a lunch break on the second day of trial. Only the opening
jury instructions included an admonition not to prematurely
form an opinion. The trial court did not admonish the jury at all
prior to several short recesses during the course of the two-day
trial or at the close of evidence.

¶8     While the trial court did not strictly comply with rule
17(k), we are not convinced that prejudice should be presumed
in this case, as Waldoch urges. See State v. Maestas, 

, 

 (“Automatically granting a new trial for any
instance where the court fails to admonish the jury before a
recess fails to take into account whether, and to what extent, the
jury has been properly admonished by the court in other
instances. If the admonition is not given but the harm that it was
designed to forestall never occurs, it would be pointless to order
a new trial simply to have the [admonition] given.” (alteration in
original) (citation and internal quotation marks omitted)). The
jurors were given a complete and detailed admonition in the



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                         State v. Waldoch


opening jury instructions and were instructed on several
additional occasions in the course of the two-day trial not to
discuss the case among themselves. They were also informed
that the same instruction would apply to “any other recess.” In
the course of the two-day trial, “the jury would have had little
opportunity to forget prior admonitions,” see id. ¶ 53, and
Waldoch has pointed to “nothing in the record to indicate that
the failures to admonish played any role in the [jurors’]
conduct,” see id. ¶ 54. Likewise, he has failed to establish that he
was prejudiced by the husband and wife sitting together, both
because there is nothing to suggest that they ignored the
admonitions they were given or influenced one another and
because only one spouse actually sat on the final jury. See State v.
Sessions, 

, 

 (explaining that to
establish prejudice in the context of jury selection, a defendant
must show that a juror was “actually biased”); accord State v.
King, 

, 

.

¶9     Finally, Waldoch asserts that the prosecutor committed
misconduct by inappropriately appealing to the jury’s emotions.
See State v. Campos, 

, 

. He
also asserts that the trial court should have admonished the jury
to disregard statements by the prosecutor appealing to emotion.
These issues were not preserved for appeal, 5 and Waldoch has
again failed to adequately brief them in the context of plain error
or ineffective assistance of counsel. Thus, we decline to consider
Waldoch’s prosecutorial misconduct claims.

¶10 We conclude that the evidence was sufficient to support a
finding of penetration and therefore to support the jury’s guilty


5. Although defense counsel asked to approach the bench in the
middle of the prosecutor’s closing argument, no objection was
made on the record and there is no record of the discussion at
the bench.




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                         State v. Waldoch


verdict on the object rape charge. We further determine that
Waldoch’s arguments regarding the trial court’s admonitions to
the jury, jury selection, and alleged prosecutorial misconduct are
unpreserved and inadequately briefed. We therefore affirm his
convictions.



CHRISTIANSEN, Judge (concurring):

¶11 I agree with the majority that the evidence presented at
trial was sufficient to support Waldoch’s object rape conviction,
that Waldoch was not prejudiced by the trial court’s insufficient
admonishments before recesses or the presence of a married
couple on the jury, and that Waldoch’s challenge to the
prosecutor’s closing argument was not preserved. I write
separately, however, to explain my belief that the trial court
plainly erred and that trial counsel performed deficiently during
jury selection by failing to inquire during voir dire whether the
husband and wife, who were both seated on the venire, could
independently reach impartial verdicts if selected as jurors in
this case.

¶12 Article I, section 12 of the Utah Constitution and the Sixth
Amendment to the United States Constitution guarantee a
criminal defendant the right to a trial by an impartial jury.
Moreover, “[p]rinciples of due process also guarantee a
defendant an impartial jury.” Ristaino v. Ross, 

, 595
n.6 (1976). And Utah Code section 77-1-6 affords defendants in
criminal prosecutions the right “[t]o a speedy public trial by an
impartial jury.” 

(1)(f) (LexisNexis 2012).
Since “[j]uror impartiality is a mental attitude of appropriate
indifference,” State v. Woolley, 

 (Utah Ct. App.
1991) (citation and internal quotation marks omitted), adequate
voir dire is necessary to determine each juror’s mental attitude
and ability to independently reach a verdict. “The purpose of
voir dire of a jury panel is ‘to provide a tool for counsel and the



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                          State v. Waldoch


court to carefully and skillfully determine, by inquiry, whether
biases and prejudices, latent as well as acknowledged, will
interfere with a fair trial if a particular juror serves in it.’” Salt
Lake City v. Tuero, 

 (Utah Ct. App. 1987)
(quoting State v. Ball, 

 (Utah 1984)). While I
would not presume as a matter of law that two jurors who are
married might automatically vote together during deliberations,
both jurors must be asked during voir dire whether they would
make a decision independent of their spouse. See Dunlap v.
Commonwealth, 

, 585–86 (Ky. 2013) (trial court did
not abuse its discretion in denying a motion to strike married
jurors, because the married jurors serving together were not
presumptively biased and the jurors’ specific responses during
voir dire did not indicate any partiality); State v. Richie, 

, 1243–44 (Haw. 1998) (married jurors are not presumptively
disqualified from serving on juries but their independence
should be assured through adequate voir dire); Russell v. State,

 (Okla. Crim. App. 1977) (per curiam)
(“Undoubtedly, married couples will be found that are unable to
divorce one another’s thoughts during a trial, but when voir dire
uncovers no bias, partiality, or inability to form independent
thought[, spouses] should not be excluded.”).

¶13 Here, the record does not demonstrate that, after hearing
from each member of the venire and learning that two members
of the panel were married to each other, trial counsel or the court
directed any inquiry during voir dire to the married jurors to
determine whether this husband and wife could consider the
case independently if selected to serve on the jury. It is true that
the issue of whether married persons can serve on a jury has not
been extensively litigated and that the partiality of married
jurors is not presumed. However, the identification of any preexisting relationships among the venire and determination of
juror partiality seems to be an obvious enough line of inquiry
during jury selection that the trial court plainly erred and that
trial counsel performed deficiently in not following up with



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                         State v. Waldoch


further questions on this issue. In my view, both trial counsel
and the trial court should have recognized that spouses serving
together on a jury may lack impartiality vis-à-vis each other and
thus should have conducted further voir dire to ensure that an
impartial jury was seated in Waldoch’s trial.

¶14 That said, I agree with the majority that Waldoch has
failed to establish prejudice here, because only the husband sat
on the final jury and there is nothing in the record to suggest that
either spouse ignored the admonitions given by the trial court
prior to jury deliberation or that the spouses actually influenced
one another.




20140851-CA                     9