In re N.A.D. (N.A.D. v. State)

2014 UT App 249
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF N.A.D., A PERSON UNDER
EIGHTEEN YEARS OF AGE.

N.A.D.,
Appellant,
v.
STATE OF UTAH,
Appellee.

Memorandum Decision
No. 20130669-CA
Filed October 23, 2014

Fourth District Juvenile Court, Orem Department
The Honorable Mary T. Noonan
No. 1071590

Neil D. Skousen, Attorney for Appellant

Sean D. Reyes and Ryan D. Tenney, Attorneys
for Appellee

JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
concurred.

DAVIS, Judge:

¶1 Fourteen-year-old N.A.D. was accused of raping and
threatening to kill seven-year-old K.W. while N.A.D. and his sister
were sleeping at K.W.’s home. N.A.D. was subsequently
adjudicated delinquent for rape of a child and threatening the life
of a child. We affirm.
In re N.A.D.

¶2 N.A.D. first argues that he was denied due process because
the same judge who ruled on his motion to suppress presided over
his trial. Because this issue was not preserved below, he raises it on
grounds of plain error and ineffective assistance of counsel.

¶3 In order to prevail on grounds of plain error, an appellant
must show that “(i) [a]n 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 appellant.” State v. Dunn, 850 P.2d 1201, 1208 (Utah
1993). “An error is obvious only if the law governing the error was
clear at the time the alleged error was made.” State v. Maestas, 2012
UT 46, ¶ 37, 299 P.3d 892 (citation and internal quotation marks
omitted).

¶4 N.A.D. asserts that the juvenile court judge could not
impartially hear his case because the judge had previously heard
evidence of his confession when she considered and granted his
motion to suppress. He therefore maintains that it was plain error
for the judge not to recuse herself from the trial. However, N.A.D.
identifies no settled law supporting his argument. Instead, N.A.D.
points to case law indicating that a defendant whose motion to
suppress was denied before trial need not renew his motion at a
bench trial in order to preserve the suppression issue for appeal
where the same judge who heard the motion presides over the trial.
See, e.g., State v. Griffin, 754 P.2d 965, 968 (Utah Ct. App. 1988). He
then argues that because judges are presumed to be aware of
pretrial issues they have ruled on for preservation purposes, they
should also be presumed to have been influenced by them in their
rulings at trial.

¶5 Even if we were inclined to agree with N.A.D., the inference
he asks us to draw from Griffin and similar cases does not
constitute settled law sufficient to support a plain error claim.
Indeed, not only is N.A.D.’s position not supported by settled law,
it is actually contradicted by settled law. When a jury hears a case,
the court is required to conduct the trial “so that inadmissible

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evidence is not suggested to the jury by any means.” Utah R. Evid.
103(d). However, “judges in bench trials are presumed to be less
likely than juries to be prejudiced by [inadmissible] evidence.” State
v. Adams, 2011 UT App 163, ¶ 12, 257 P.3d 470; see also State v.
Burke, 129 P.2d 560, 562 (Utah 1942) (“The court, sitting without a
jury, is presumed to have disregarded any irrelevant, immaterial
or other evidence not pertinent to the issue.”). We have therefore
“recognize[d] a presumption that the court considers only
admissible evidence and disregards any inadmissible evidence.”
Adams, 2011 UT App 163, ¶ 12; see also 46 Am. Jur. 2d Judges § 153
(2006) (“A judge is not disqualified to sit in a trial on the merits by
having heard and decided a preliminary proceeding in the same
cause on the basis that a judge is uniquely capable of distinguishing
the issues and of making an objective determination based upon
appropriate legal criteria, despite the awareness of facts which
cannot properly be relied upon in making the decision.” (footnotes
omitted)). To rebut this presumption, the defendant must
demonstrate that “the inadmissible evidence actually factored into
the trial court’s determination of the defendant’s guilt.” Adams,
2011 UT App 163, ¶ 14. N.A.D. has pointed to nothing in the
juvenile court’s ruling suggesting that the judge relied on his
confession apart from his speculation that the judge would not
have found the State’s evidence credible had she not known about
the confession. But speculation is not enough, and there is no
evidentiary basis on which to conclude that the juvenile court judge
should have sua sponte recused herself from conducting the bench
trial.

¶6 For the same reasons, N.A.D. cannot prevail on his
ineffective assistance of counsel claim. In order to prevail on
grounds of ineffective assistance, a defendant must demonstrate,
first, “that counsel’s performance was deficient, in that it fell below
an objective standard of reasonable professional judgment” and,
second, “that counsel’s deficient performance was prejudicial—i.e.,
that it affected the outcome of the case.” State v. Litherland, 2000 UT
76, ¶ 19, 12 P.3d 92 (citing Strickland v. Washington, 466 U.S. 668,
687–88 (1984)). In demonstrating deficient performance, “a

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defendant bears the burden of demonstrating why, on the basis of
the law in effect at the time of trial, his or her trial counsel’s
performance was deficient.” Dunn, 850 P.2d at 1228; see also State v.
Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile
objections does not constitute ineffective assistance of counsel.”).
Because there was no basis in existing law for N.A.D.’s counsel to
have requested that the juvenile court judge recuse herself, N.A.D.
cannot show that his counsel performed deficiently.

¶7 N.A.D. next argues that his trial counsel was ineffective for
failing to call an expert witness to testify regarding the effects of
N.A.D.’s medication. N.A.D. relies on our supreme court’s ruling
in State v. Hales, 2007 UT 14, 152 P.3d 321, which determined that
the failure of a defendant’s attorneys “to conduct an adequate
investigation” by enlisting an expert to review CT scans vital to the
State’s case constituted ineffective assistance. Id. ¶ 93. Counsel in
Hales failed to consult an expert until the morning of trial, and the
expert consulted was not qualified to testify. Id. ¶ 29. When Hales
moved for a new trial based on ineffective assistance, he provided
an affidavit from a qualified expert interpreting the CT scans in a
manner that had the potential to exonerate Hales. Id. ¶ 31. Based on
this information, the supreme court concluded that “there was a
‘reasonable probability’ that, but for the errors, Hales would not
have been convicted.” Id. ¶ 92.

¶8 Unlike Hales, N.A.D. has not shown either that his counsel
failed to adequately investigate the effect of his medication or that
an expert would have provided helpful testimony if called as a
witness. The record indicates that N.A.D.’s counsel had enlisted
“Wasatch Mental Health Professionals” as prospective witnesses,
although those witnesses were not ultimately identified or called
to testify. This belies N.A.D.’s claim that his counsel did not consult
with experts regarding his health issues and medication. But even
if counsel’s investigation was inadequate, the record does not
indicate what an expert would have testified to if called. N.A.D.
points to his mother’s testimony that he was taking medication,
that he could not sleep without it, and that it was very difficult to

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In re N.A.D.

wake him after he had taken it. But unlike Hales, who provided an
affidavit by an expert indicating what the expert would have
testified to if called at trial, N.A.D. has provided us with nothing to
indicate that an expert would have corroborated or added to his
mother’s testimony, and the record does not even identify the
precise medication N.A.D. was taking. Cf. State v. Charles, 2011 UT
App 291, ¶ 32, 263 P.3d 469 (rejecting an ineffective assistance claim
where a defendant asserted on appeal that an expert would have
provided corroborating testimony helpful to his case but “provided
no evidence to support this claim”). Therefore, we can only
speculate as to what an expert would have testified to if called by
N.A.D.’s counsel, and “proof of counsel’s ineffectiveness must be
a demonstrable reality, not mere speculation.” See State v. Tyler, 850
P.2d 1250, 1254 (Utah 1993). Because N.A.D. has failed to
demonstrate that he was prejudiced by his counsel’s failure to call
an expert to testify regarding the effects of his medication, we reject
his ineffective assistance claim on this issue.

¶9 Finally, N.A.D. argues that the evidence was insufficient to
support the juvenile court’s adjudication. “When reviewing a
bench trial for sufficiency of the evidence we must sustain the trial
court’s judgment unless it is against the clear weight of the
evidence, or if [we] otherwise reach[] a definite and firm conviction
that a mistake has been made.” In re D.V., 2011 UT App 241, ¶ 6,
265 P.3d 803 (alterations in original) (citation and internal quotation
marks omitted).

¶10 N.A.D. acknowledges that K.W.’s testimony supports the
juvenile court’s adjudication but argues that this testimony was
insufficient in light of testimony from N.A.D.’s mother that his
medication would have caused him to sleep deeply all night and
from N.A.D.’s ten-year-old sister that K.W., rather than N.A.D.,
was the aggressor. “However, the juvenile courts are given wide
latitude based upon not only the court’s opportunity to judge
credibility firsthand, but also based on the juvenile court judges’
special training, experience and interest in this field, and devoted
attention to such matters.” In re C.C.R., 2011 UT App 228, ¶ 16, 257

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P.3d 1106 (citation and internal quotation marks omitted). The
juvenile court found K.W.’s testimony credible and explained the
reasons for this finding, including that K.W.’s description of the
event was “compelling”; that she “listened carefully,” “maintained
eye contact,” “sat tall,” and “was direct in responding to questions”
at trial; and that she “asked when she was confused,” “didn’t
squirm,” and “didn’t shy from the questions or otherwise indicate
that she was confused or equivocating.” On the other hand, the
juvenile court found that N.A.D.’s sister was not a credible witness
because she “was clear that she really wanted [N.A.D.] not to be in
trouble,” she could not describe the events she testified to in detail,
aspects of her testimony were inconsistent or illogical, and her
demeanor suggested that she was “uncomfortable . . . with her own
responses” to questions at trial. The juvenile court also observed
that despite the testimony regarding the effects of N.A.D.’s
medication, no witness definitively testified that N.A.D. had
actually taken the medication or that he was actually asleep at the
time of the events in question. Based on this assessment of the
evidence, the juvenile court found that the State had proven the
allegations beyond a reasonable doubt. The juvenile court’s
findings are entitled to deference, and we are not convinced that
they were against the clear weight of the evidence.

¶11 In sum, Utah law does not require a judge who has gained
knowledge of inadmissible evidence by presiding over pretrial
matters to recuse herself from conducting a bench trial. Thus,
N.A.D.’s plain error and ineffective assistance of counsel claims
relating to this issue fail. Furthermore, N.A.D. has failed to
demonstrate that he was prejudiced by his counsel’s decision not
to call an expert witness to testify regarding his medication, and
therefore, his ineffective assistance claim relating to this issue
likewise fails. Finally, the evidence was sufficient to support the
juvenile court’s delinquency adjudication. We therefore affirm.

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