State v. Hand

2016 UT App 26
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
R ONALD A LVIN HAND,
Appellant.
Memorandum Decision
No. 20140210-CA
Filed February 11, 2016
Second District Court, Farmington Department
The Honorable Robert J. Dale
No. 131700092
Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
S ENIOR JUDGE R USSELL W. BENCH authored this Memorandum
Decision, in which J UDGES S TEPHEN L. R OTH and K ATE A. TOOMEY
concurred.1
BENCH, Senior Judge:
¶1 	Ronald 	Alvin 	Hand 	challenges 	his 	conviction 	of
aggravated sexual abuse of a child, a first-degree felony. See
Utah 	Code 	Ann. 	§ 	76-5-404.1(4)–(5) 	(LexisNexis 	2012). 	In
connection with this appeal, he also filed a motion pursuant to
rule 23B of the Utah Rules of Appellate Procedure to remand the
case to supplement the record. We deny Hand’s motion and
affirm his conviction.
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. Hand
20140210-CA 	2 	2016 UT App 26
¶2 	As a threshold matter, we consider Hand’s rule 23B
motion to supplement the record with the proposed testimony of
two alibi witnesses and information regarding the reliability of
the forensic interview of the victim. “A remand under rule 23B
will . . . be granted [only] ‘upon a nonspeculative allegation of
facts, not fully appearing in the record on appeal, which, if true,
could support a determination that counsel was ineffective.’”
State v. Lee, 2014 UT App 4, ¶ 5, 318 P.3d 1164 (quoting Utah R.
App. P. 23B(a)). 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)).
Because we conclude that the facts alleged in the rule 23B
motion, even if true, could not support a determination that
counsel was ineffective, we deny Hand’s motion. See State v.
Griffin, 2015 UT 18, ¶ 20 (“It stands to 	reason that if the
defendant could not meet the test for ineffective assistance of
counsel, even if his new factual allegations were true, there is no
reason to remand the case, and we should deny the [rule 23B]
motion.”).
¶3 	First, Hand asserts that his counsel performed deficiently
by failing to fully investigate two potential alibi witnesses and to
call them to testify at his trial. According to the affidavits
submitted in conjunction with Hand’s rule 23B motion, the two
witnesses 	would 	have 	testified 	that 	they 	were 	visiting 	the
victim’s mother’s home on “the day of the claimed incident” and
that they were with Hand the whole time the victim was present
at the home.
¶4 	Even 	if 	Hand 	could 	establish 	the 	alibi 	witnesses’
testimony on remand, he could not demonstrate that counsel’s
failure 	to 	use 	the 	witnesses 	prejudiced 	him, 	because 	the
witnesses’ testimony would have done little to prove an alibi.

State v. Hand
20140210-CA 	3 	2016 UT App 26
The affidavits do not actually identify the precise day the two
witnesses were present at the home; they only indicate that the
witnesses were in the home on “the day of the claimed incident”
and 	provide 	no 	additional 	information 	tying 	the 	day 	they
describe to the charged offense. But there was no evidence at
trial indicating when the “claimed incident” occurred. Rather,
the 	relevant 	events 	were 	charged 	to 	have 	occurred 	on 	an
unspecified date between May 19, 2010, and September 1, 2011.
Thus, testimony that two individuals were with Hand and the
victim on one particular day during that time frame would not
have established an alibi for the entire period during which the
incident could have occurred. Cf. Burke v. State, 2015 UT App 1,
¶¶ 23–25, 342 P.3d 299 (holding that counsel did not perform
deficiently by failing to investigate and present an alibi that
covered only a portion of the time during which the crime was
alleged to have taken place).
¶5 	And even if the witnesses could have established an
exculpatory 	alibi, 	Hand 	could 	not 	establish 	that 	counsel
performed deficiently in failing to investigate them and call
them to testify at trial. The affidavits do not support Hand’s
assertion that defense counsel failed to investigate the witnesses.
In fact, both affidavits contradict that assertion, as both indicate
that the potential witnesses spoke with Hand’s counsel “about
how [they] could perhaps help [Hand’s] case.”
¶6 	Furthermore, it was reasonable trial strategy for defense
counsel not to call the alibi witnesses. Using the alibi witnesses
would have required the defense to convince the jury not only
that the witnesses were with Hand on the day they claimed but
also that the day the witnesses were with Hand was the same
day the alleged abuse took place. Since there was no evidence
regarding 	the 	precise 	day 	the 	incident 	took 	place, 	it 	was
reasonable for defense counsel to use the lack of a precise date to
undermine the victim’s credibility rather than try to establish an
alibi. Indeed, defense counsel pointed out in opening and closing
arguments that the date of the alleged abuse was imprecise,

State v. Hand
20140210-CA 	4 	2016 UT App 26
stressing the difficulty of proving the circumstances of the case
and urging the jury to focus on inconsistencies in the victim’s
testimony. Defense counsel used the imprecise date to elicit
sympathy from the jury, emphasizing the State’s burden of proof
and asking the jury to consider how difficult it is for someone to
“prove a negative.” This was a reasonable approach under the
circumstances.
¶7 	Additionally, defense counsel may have anticipated that
the victim and her mother might refute the witnesses’ claims of
having been present at the time of the incident, as neither the
victim nor her mother ever mentioned others being present at
the home on the day of the incident. Thus, counsel could have
reasonably determined that using the alibi witnesses would hurt
Hand’s case more than help it. Because there is a conceivable
strategy 	for 	not 	calling 	the 	alibi 	witnesses, 	Hand 	cannot
demonstrate that counsel performed deficiently. See State v.
Tennyson, 	850 	P.2d 	461, 	468 	(Utah 	Ct. 	App. 	1993) 	(“[A]n
ineffective assistance claim succeeds only when no conceivable
legitimate tactic or strategy can be surmised from counsel’s
actions.”).
¶8 	Hand next argues that defense counsel was ineffective for
failing 	to 	investigate 	the 	reliability 	of 	the 	victim’s 	forensic
interview and use the results of that investigation to undermine
the 	victim’s 	credibility. 	The 	jury 	never 	actually 	heard 	the
interview and therefore did not rely on it in making its decision.
Thus, there was no need to undermine the credibility of the
interview itself. Accordingly, the only purpose we can surmise
that 	could 	have 	been 	served 	by 	attacking 	the 	interview’s
reliability would have been to assert that the interview somehow
improperly influenced the victim’s later testimony. But neither
the record nor the affidavits submitted with the rule 23B motion
establish 	the 	contents 	of 	the 	interview, 	so 	the 	relationship
between 	the 	interview 	and 	the 	victim’s 	trial 	testimony 	is
speculative.

State v. Hand
20140210-CA 	5 	2016 UT App 26
¶9 	Furthermore, defense counsel’s trial strategy focused on
proving that the allegations were fabricated in the first place, not
that 	the 	victim 	was 	influenced 	by 	improper 	interview
procedures. Counsel focused on proving that the victim had a
motive to accuse Hand because she disliked him and resented
his relationship with her mother. Thus, demonstrating that the
interview was improperly conducted would have done little to
advance the defense’s theory of the case. Pursuing a fabrication
defense was a reasonable trial strategy, and counsel did not
perform 	deficiently 	by 	pursuing 	this 	strategy 	rather 	than
attempting to undermine the forensic interview, which was not
even presented to the jury.
¶10 	Hand also argues that the trial court applied the wrong
standard in ruling on his motion to arrest judgment and erred in
denying that motion. We review a trial court’s ruling on a
motion to arrest judgment for correctness. State v. Black, 2015 UT
App 30, ¶ 12, 344 P.3d 644.
¶11 	A court may reverse a jury verdict on a motion to arrest
judgment only when “the evidence is sufficiently inconclusive or
inherently improbable such that reasonable minds must have
entertained a reasonable doubt that the defendant committed the
crime for which he or she was convicted.” See State v. Bluff, 2002
UT 66, ¶ 63, 52 P.3d 1210 (citation and internal quotation marks
omitted). Here, Hand’s motion to arrest judgment was based on
his assertion that the victim told different people different stories
about 	what 	happened 	immediately 	after 	the 	alleged 	abuse
occurred,2 that she did not tell anyone that Hand told her he
wanted her to be his “little girlfriend” until trial, that it was
2. The victim reported to several different individuals that she
hid from Hand following the incident, but her story varied as to
whether she hid in a truck, in a dog run, or behind some trees
and as to whether Hand found her and told her not to tell
anyone what had happened.

State v. Hand
20140210-CA 	6 	2016 UT App 26
improbable that Hand would have rubbed the victim’s back
while her mother was nearby, and that the hand gesture the
victim used at trial to indicate how Hand touched her was
inconsistent with the angle required for penetration.
¶12 	The trial court concluded that the victim’s testimony
regarding the facts constituting the offense was “direct” and
“very specific and met each and every one of the elements of the
crime[].” The victim testified that Hand rubbed her back while
she was in bed with him and her mother and that she left
because she felt uncomfortable. Hand then followed her upstairs
and began rubbing her back under her shirt and putting his
hands down her pants underneath her underwear. The victim
testified that Hand digitally penetrated her and that he asked her
“to be his little girlfriend.”
¶13 	The trial court determined that Hand was “primarily
complaining 	of 	inconsistent 	testimony” 	that 	went 	to 	the
credibility of the witnesses and was “something for the jury to
weigh.” It determined that the victim’s inconsistent testimony
about what Hand said to her and what happened after the
incident ultimately went to the victim’s credibility and did not
make her testimony regarding the facts constituting the crime
inherently improbable. The court further concluded that if the
mother was asleep, it was not improbable that Hand could have
rubbed the victim’s back in the mother’s presence without the
mother knowing. The court also observed that the hand gesture
used by the victim “was not a demonstration . . . of penetration
or how penetration occurred” but was used to show “how it was
that [Hand’s] hand . . . went inside of her clothing.”
¶14 	Hand asserts that the trial court erred in dismissing the
inconsistencies in the victim’s testimony as “tangential,” arguing
that this approach departs from our supreme court’s holding
that “[s]ubstantial inconsistencies in a sole witness’s testimony,
though not directed at the core offense, can create a situation
where 	the 	prosecution 	cannot 	be 	said 	to 	have 	proven 	the

State v. Hand
20140210-CA 	7 	2016 UT App 26
defendant’s guilt beyond a reasonable doubt,” State v. Robbins,
2009 UT 23, ¶ 17, 210 P.3d 288. While substantial inconsistencies,
even as to tangential issues, may make a witness’s testimony
inherently improbable, we agree with the trial court that the
tangential 	inconsistencies 	in 	this 	case 	did 	not 	make 	“the
credibility of the witness . . . so weak that no reasonable jury
could find the defendant guilty beyond a reasonable doubt.” See
id. ¶ 18; see also State v. Kamrowski, 2015 UT App 75, ¶ 16, 347
P.3d 861 (“[I]nconsistencies with respect to peripheral issues or
details of the abuse will generally not implicate the inherent-
improbability doctrine but are matters for the jury to resolve in
assessing the witness’s credibility.”). Thus, the trial court did not
err in denying Hand’s motion to arrest judgment.
¶15 	We conclude that Hand could not establish his ineffective
assistance 	of 	counsel 	claims 	even 	if 	he 	were 	permitted 	to
supplement the record on remand. Further, we determine that
the trial court did not err in denying Hand’s motion to arrest
judgment. Accordingly, we deny Hand’s rule 23B motion and
affirm his conviction.