Summary
The Utah Court of Appeals reviews James Louis James's convictions for three counts of aggravated sexual abuse of a child and his concurrent fifteen-years-to-life sentences. The court addresses several claims of ineffective assistance of counsel, including jury-unanimity instructions, handling of evidence, closing argument, and sentencing. It reverses the conviction on one count and remands for further proceedings on that count, while affirming the other two convictions and the sentence.
Topics
Practice areas
Questions Presented
- Whether trial counsel rendered ineffective assistance by stipulating to admission of Ashley's therapy journal and CJC interview transcript.
- Whether trial counsel rendered ineffective assistance at sentencing by seeking probation and not specifically requesting a shorter prison term.
- Whether trial counsel rendered ineffective assistance by failing to request a more specific jury unanimity instruction where the State presented evidence of multiple occurrences exceeding the number of charged counts.
- Whether the absence of a more specific unanimity instruction prejudiced James as to Counts 1 and 2.
- Whether the absence of a more specific unanimity instruction prejudiced James as to Count 3.
- Whether James was entitled to a Rule 23B remand for factfinding concerning additional ineffective-assistance claims, including the CJC transcript, defense strategy, timeline impeachment, a DARE-program expert, reasons Ashley moved out, handling of an uncle's testimony, and preparation for the presentence investigation interview.
Holdings
- When the State presents evidence that the defendant committed more occurrences of criminal conduct than the number of charged counts, the jury must be instructed so that it is unanimous as to the particular occasion and act supporting each count. James would have been entitled to an instruction along the lines of MUJI 2d CR432.
- James did not establish prejudice as to Counts 1 and 2 because the swimming-pool and Friday-morning incidents were undifferentiated, leaving no meaningful evidentiary basis for the jury to distinguish among individual acts.
- Counsel performed deficiently by failing to request a specific unanimity instruction for Count 3, and that failure prejudiced James because jurors could have relied on different, materially distinct shower or bath acts in finding the elements of the offense.
- James was not entitled to a Rule 23B remand because his affidavits did not establish deficient performance and prejudice on the proposed claims, or because the claims failed on prejudice grounds even assuming deficient performance.
Key quotations
“Our constitution “requires unanimity as to each count of each distinct crime charged by the prosecution and submitted to the jury for decision.”” (¶ 49)
“In this situation, a reasonable attorney would have made that request, because without an instruction like MUJI 2d CR432, the burden of proof is “effectively lowered.”” (¶ 59)
“James has therefore demonstrated that, with regard to Count 3, Counsel rendered constitutionally ineffective assistance, and on this basis, we reverse James’s conviction on that count.” (¶ 65)
Factual background
James was convicted of sexually abusing his daughter, Ashley, during several categories of alleged conduct when she was between ten and twelve years old. The State charged three identically worded counts and later associated Count 1 with swimming-pool incidents, Count 2 with Friday-morning incidents before school, and Count 3 with showering and bathing incidents. For Count 3, the evidence described both shower conduct involving close physical contact and bathing conduct involving James watching Ashley and, according to portions of her recorded interview read during closing argument, sometimes washing her. The jury convicted James on all three counts, and the CJC interview transcript mistakenly went into the jury room during deliberations despite the parties' and court's instruction that it should not.
Procedural history
A jury convicted James on three counts of aggravated sexual abuse of a child. The trial court sentenced him to fifteen years to life on each count, to run concurrently. The Utah Court of Appeals rejected all asserted ineffective-assistance claims except the claim concerning the absence of a specific unanimity instruction for Count 3, denied the Rule 23B remand motion, reversed the conviction on Count 3, remanded for further proceedings on that count, and affirmed the convictions and sentence on Counts 1 and 2.
Remand instructions
Reverse James's conviction on Count 3 and remand to the trial court for further proceedings regarding that count. Deny the Rule 23B motion and affirm the convictions and sentence on Counts 1 and 2.