State v. Hanigan

2014 UT App 165
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
ASGIA JI HANIGAN,
Defendant and Appellant.
Memorandum Decision
No. 20120718-CA
Filed July 17, 2014
Eighth District Court, Duchesne Department
The Honorable A. Lynn Payne
No. 001800009
Grant W.P. Morrison and Court J. Klekas II,
Attorneys for Appellant
Sean D. Reyes and Brett J. DelPorto, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES STEPHEN L. ROTH and MICHELE M.
CHRISTIANSEN concurred.
ORME, Judge:
¶1 Defendant Asgia Ji Hanigan was convicted on two counts of
sodomy of a child and one count of aggravated sexual abuse of a
child. He now appeals those convictions, claiming that he received
ineffective assistance of counsel. We affirm.
¶2 To prevail on an ineffective assistance of counsel claim, a
defendant must first “show that counsel’s representation fell below
an objective standard of reasonableness.” Strickland v. Washington,
466 U.S. 668, 688 (1984). When evaluating trial counsel’s conduct,

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we “indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound
trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)). “Second, the defendant must show that the deficient
performance prejudiced the defense.” Id. at 687.
¶3 Defendant first contends that his trial counsel was ineffective
for failing to object to the admission of a videotaped interview of
the victim. At trial, the State sought to introduce into evidence a
videotaped interview of the victim and to show the interview in
lieu of conducting direct examination of the victim. Defendant
argues that his trial counsel should have objected to this evidence
because the recorded testimony was unreliable and was not
corroborated by other evidence.
¶4 The Utah Rules of Criminal Procedure provide for the
admission of previously recorded testimony of child victims of
sexual or physical abuse when certain conditions are met. Utah R.
Crim. P. 15.5(a). In this case, the trial court recognized that the State
was attempting to bring in this evidence under rule 15.5, carefully
considered whether the statutory conditions were met, and made
detailed findings about the fulfillment of each condition. And the
trial court explicitly found that there was “other corroborative
evidence of abuse,” that the recording was “sufficiently reliable and
trustworthy,” and that the recording should be admitted in the
interest of justice. When a trial court “considers the factors
specified in [rule 15.5] and determines that the recorded statement
is accurate, reliable and trustworthy, and that its admission is in the
interest of justice,” the recording is admissible. See State v. Nguyen,
2012 UT 80, ¶ 11, 293 P.3d 236 (holding also that the rule 15.5
requirement of “good cause” is met when the court considers all of
the statutory factors). Therefore, because the recorded testimony of
the victim was properly admitted under rule 15.5 of the Utah Rules
of Criminal Procedure, an objection to its admission would have
been futile. And “[f]ailure to raise futile objections does not

State v. Hanigan
1. Defendant also contends that the recording was improperly
admitted under section 76-5-411 of the Utah Code, which was
repealed in 2009. See Act of March 4, 2009, 2009 Laws of Utah 535,
544 (repealing Utah Code section 76-5-411, effective May 12, 2009).
However, an out-of-court statement of a child victim of sex abuse
would have been admissible under section 76-5-411 if it qualified
for admission under rule 15.5(1) of the Utah Rules of Criminal
Procedure. See Utah Code Ann. § 76-5-411(1)(c) (LexisNexis 2008)
(repealed 2009). Because we determine that the recording was
properly admitted under rule 15.5, we do not otherwise address
Defendant’s arguments regarding the requirements of section 76-5-
411.
20120718-CA 3 2014 UT App 165
constitute ineffective assistance of counsel.” State v. Kelley, 2000 UT1
41, ¶ 26, 1 P.3d 546.
¶5 Defendant next argues that he received ineffective assistance
of counsel when his trial counsel failed to object to the admission
of certain exhibits, including magazines showing adults dressed in
diapers engaging in masochistic sex, letters allegedly written to
Defendant discussing sex and diaper fetishes, photographs of
Defendant in a diaper and sucking on a baby bottle, and
photographs of adults and minors dressed in diaper-fetish attire.
While trial counsel’s decision not to object to the admission of these
exhibits might seem curious in retrospect, we can conceive of a
tactical basis for allowing at least some of the exhibits to be
admitted. See State v. Clark, 2004 UT 25, ¶¶ 6–7, 89 P.3d 162 (noting
that the court gives wide latitude to trial counsel in making
decisions and will categorize them as deficient only if there is no
conceivable tactical basis supporting them). Specifically, trial counsel
may have viewed the photographs of Defendant wearing diapers
and drinking from a baby bottle as an alternative way to present
information about Defendant’s claimed medical conditions. Indeed,
prior to the admission of the exhibits, Defendant had testified that,
as a result of a gunshot wound, he was incontinent and was
required to “constantly” wear diapers until he began using a

State v. Hanigan
20120718-CA 4 2014 UT App 165
catheter in 1992, and he testified that drinking out of a baby bottle
was “the only way [he] could get liquid sometimes.” Of course,
pursuing this tactic would have created the risk that many of the
other exhibits would have come in at the State’s behest to undercut
Defendant’s claim that he wore diapers and drank from a baby
bottle only as a matter of medical necessity.
¶6 But even if Defendant’s counsel had vigorously objected to
any of the exhibits being admitted, many of them would have been
admitted notwithstanding the objection. See generally State v. Kelley,
2000 UT 41, ¶ 26, 1 P.3d 546 (holding that “[f]ailure to raise futile
objections does not constitute ineffective assistance of counsel”).
Much of the evidence admitted during the State’s cross-
examination of Defendant undercut his testimony that he had a
medical disability that should have been visible to the victim and
that was sexually disabling. Therefore, the trial court would likely
have admitted the exhibits at the State’s behest—even had trial
counsel objected—as tending to show that a medical condition was
not the reason Defendant often wore adult diapers.
¶7 Concededly, many of the exhibits introduced by the State
may have been excluded in the face of active opposition by trial
counsel either because they did not tend to make Defendant’s
medical condition more or less probable or because they were more
unfairly prejudicial than they were probative. See Utah R. Evid. 401,
403. But even assuming that trial counsel was deficient for failing
to object to the admission of the exhibits or for opening the door to
their admission, and even assuming that some of the exhibits
introduced by the State would have been excluded had trial
counsel objected, we conclude that any error on counsel’s part “had
no effect on the judgment.” See Strickland v. Washington, 466 U.S.
668, 691 (1984). See also id. at 670 (“If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice,
that course should be followed.”). This case was tried to the court,
not a jury. “Although the nature of the proceedings should not
affect the admissibility of evidence, we recognize a presumption
that the court considers only admissible evidence and disregards

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any inadmissible evidence.” State v. Adams, 2011 UT App 163, ¶ 12,
257 P.3d 470. “As a corollary to this general princip[le], judges in
bench trials are presumed to be less likely than juries to be
prejudiced by” problematic evidence. Id. See State v. Park, 404 P.2d
677, 679 (Utah 1965) (“[T]he rulings on evidence are looked upon
with a greater degree of indulgence when the trial is to the court
than when it is to the jury.”).
¶8 Here, the trial court was quick to recognize that, in relation
to the behavior depicted in the exhibits, “there’s no evidence that
people who engage in [this] conduct are more likely to be sexual
abusers.” However, the judge noted, “What I think is more
important to me, really, is he lied about [the nature of the
pictures].” Defendant had explained why he had the photographs,
letters, and magazines in his possession, but ultimately the court
found Defendant’s explanations unsatisfactory and improbable,
thus bearing rather directly on his general credibility. The trial
judge then concluded, “And the long and short of it is that after
reviewing all of the evidence and the testimony, especially of [the
victim], I believe [the victim]. And I’ve given all the reasons that I
can think of. But the bottom line is I had an opportunity to see both
of them, listen to them.” The trial court then found Defendant
guilty of each offense with which he was charged. In light of this
explanation by the trial court and the “presumption that the court
considers only admissible evidence and disregards any
inadmissible evidence,” Adams, 2011 UT App 163, ¶ 12, “we
conclude that there is little likelihood of a different verdict had the
evidence not been admitted and any error in its admission was
therefore harmless,” id. ¶ 20.
¶9 Finally, Defendant contends that his trial counsel failed to
investigate or introduce evidence of Defendant’s alleged medical
condition. Defendant maintains that he had a semi-permanent
catheter and a urine bag attached to him with medical tape at the
time of the alleged sexual abuse that would have made such abuse
impossible. Additionally, he asserts that because the victim could
not remember these items being on Defendant, the introduction of

State v. Hanigan
20120718-CA 6 2014 UT App 165
medical records would have served to undermine the victim’s
testimony.
¶10 Trial counsel must “adequately investigate the underlying
facts of a case.” State v. Templin, 805 P.2d 182, 188 (Utah 1990). See
Gregg v. State, 2012 UT 32, ¶ 24, 279 P.3d 396 (“Trial counsel’s
failure to conduct a reasonable investigation into the underlying
facts of a case constitutes deficient performance under the first
Strickland prong.”). And trial counsel’s investigatory decision-
making “must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s
judgments.” Strickland v. Washington, 466 U.S. 668, 691 (1984).
¶11 In this case, trial counsel investigated Defendant’s medical
history by hiring a private detective agency. In its report to trial
counsel, the agency stated, “We requested a medical record search
on all known names at the Pioneer Hospital in West Valley City,”
where Defendant said he had been treated. “They conducted a
search and found no records. They indicated records are destroyed
after seven years.” This report suggests that additional
investigations would likely have been fruitless and Defendant has
not persuaded us that his trial counsel could have done more.
Moreover, there is no record evidence indicating that additional
investigative measures would have yielded different results or that
the alleged medical records even exist.
¶12 In sum, we conclude that Defendant’s trial counsel did not
perform deficiently in failing to object to the admission of the
victim’s recorded testimony and that any alleged deficiencies in
failing to object to the admission of other exhibits did not affect the
likelihood of a different verdict. Additionally, trial counsel
adequately investigated Defendant’s medical history.
¶13 Affirmed.