State v Cruz

Cruz appealed his sodomy of a child convictions. The panel affirmed. It held that Cruz’s argument that Cruz’s challenge to the district court’s finding that videotaped interviews of the child victim were reliable failed as invited error as there was no argument presented below and Cruz’s attorney specifically stated no objection to the interviews being admitted into evidence. It rejected his confrontation and cross examination arguments holding there was no confrontation issue here as child victim actually testified and no cross examination problem as Cruz’s attorney had the opportunity to question victim about the accusations and chose not to do so. It held the district court erred in allowing the jury to take the videotaped interviews with them during deliberation as the interviews are testimony under Utah law and testimony is not allowed into the jury room under Rule of Criminal Procedure 17. However, it held the error was harmless in this case because the key issue in the case was whether child victim was coached, the jury did not appear to give overemphasis to the interviews as it acquitted or hung on all counts only supported by the interviews but convicted on counts related to a specific event which child’s mother was also testified about and the graphic nature of the alleged acts would have burned the testimony into the collective memory of the jury even without the interviews and the testimony of mother that she saw child with Cruz in bed with his pants unzipped and child stating shortly thereafter that Cruz put his penis in her mouth were sufficient to support a conviction without considering the interviews at all. It found no prejudice in the state and court describing a nonverbal reaction of child witness to a question on the videotaped interview as it was merely a description for the appellate court not the jury, the jury could see the reaction for itself, the district court gave a curative instruction and the jury acquitted on charges which the nod in question related to. It rejected Cruz’s arguments that giving an Allen charge was erroneous as there is no requirement for actual deadlock before such a  charge is given and the district court asked for a status report form the jury not  a verdict and thus there was no coercion. It held the statements by the child victim as corroborated by mother were sufficient to sustain the convictions. It held there was only one error here and thus no cumulative error.

Card v Card

Ex-husband appealed the denial of his motion under Utah code 78B7-115(1) to dismiss a protective order taken out by ex-wife and imposing sanctions. The panel affirmed. It held there was no abuse of discretion in denying the motion as ex-husband tracked down ex-wife’s bank account, required her to be present when he got eh children for visitation and used a process server to deliver child support during the period the protective order was in effect and the district court did not error in characterizing those actions as harassing and intimidating.