Justice NEHRING, opinion of the Court:
¶ 1 Jeffery Lenkart was charged with rape, forcible sodomy, and two counts of forcible sexual abuse. A jury convicted him on all counts, and he was sentenced to concurrent prison terms. Following his sentencing hearing, Mr. Lenkart moved to arrest judgment and filed a motion for a new trial, which the trial court denied. On appeal, Mr. Lenkart argues that the trial court erred when it denied his motion for a new trial. Mr. Lenkart first argues that his trial counsel was ineffective. Mr. Lenkart also claims that the trial court committed several other errors that require reversal of his conviction. Because we conclude that Mr. Lenkart's trial counsel was ineffective when he failed to investigate and present important exculpatory physical evidence at trial, we reverse Mr. Lenkart's conviction, remand for a new trial, and decline to reach the merits of Mr. Lenkart's other claims.
¶ 2 On the evening of July 22, 2007, Jeffery Lenkart hosted a party at his apartment. K.H. and her boyfriend, Brian Calitri, were first to arrive, followed by other guests. Later, K.H.'s friend, Shaunessy Rogers, also joined the group. The guests drank and mingled together. K.H. drank two large vodka-gatorades. Mr. Lenkart drank several glasses of wine.
¶ 3 Later that night, the group left Mr. Lenkart's apartment to attend a "Spazmatics" concert at a bar called Liquid Joes. The group continued to drink and dance until the bar closed at 1 a.m.
¶ 4 Around 1:30 a.m., Mr. Lenkart took a cab back to his apartment. Ms. Rogers, K.H., and her boyfriend also returned to Mr. Lenkart's apartment. After they arrived, Mr. Lenkart and K.H. walked Ms. Rogers back to her nearby apartment so she would not have to walk home alone. Ms. Rogers testified that on the way there, the three engaged in light-hearted conversation and that no one seemed overly intoxicated. After Ms. Rogers went inside her apartment, Mr. Lenkart and K.H. returned to Mr. Lenkart's apartment. K.H. fell asleep on Mr. Lenkart's bed. K.H.'s boyfriend fell asleep next to her and, as a result, Mr. Lenkart decided to sleep on his living room futon. At some point during the night, K.H. woke up to use the bathroom. It is at this point that the parties' descriptions of the subsequent events diverge.
¶ 5 K.H. testified that she woke up on the futon to someone pulling out her bra inserts and sucking on her breasts. She did not know where she was or who was touching
¶ 6 Mr. Lenkart's version of the events is quite different. Mr. Lenkart testified that he woke up to a noise in the middle of the night and saw K.H. walking out of the bathroom into the living room area where he was sleeping. According to Mr. Lenkart, K.H. made her way around his coffee table and curled up next to him on the futon. Mr. Lenkart put his hand on K.H.'s shoulder and she rolled over to her back. At this point, Mr. Lenkart put his hand on her stomach and then on her breast. Mr. Lenkart testified that K.H. "moaned in pleasure," which he interpreted as sexual arousal. At this point, Mr. Lenkart moved closer to K.H. and the couple began to passionately kiss. Mr. Lenkart then removed his shirt and lifted K.H.'s shirt to expose her breasts. K.H. moaned again in pleasure, so he helped her remove her pants. Mr. Lenkart licked the outside of her underwear. K.H. helped Mr. Lenkart remove her underwear, and she opened her legs, "giving [Mr. Lenkart] every indication that she was interested in having sex." The two began to have sexual intercourse. After several minutes, Mr. Lenkart testified that he heard a sniffling sound and realized that K.H. was no longer enjoying herself. Mr. Lenkart testified that he immediately withdrew and stopped without ejaculating. Without saying anything to Mr. Lenkart, K.H. started to put on her clothing and began to cry. She then ran into Mr. Lenkart's bedroom where her boyfriend was sleeping and eventually fled the house. Mr. Lenkart later learned that K.H. ran to Ms. Rogers' apartment to call the police.
¶ 7 A police officer arrived at Ms. Rogers' apartment at approximately 6 a.m. The police officer talked to Mr. Calitri and Ms. Rogers and then interviewed K.H. K.H. was then taken to LDS Hospital, where a Code R examination
¶ 8 The Code R nurse found a tear in K.H.'s vaginal skin and tenderness in her genitalia. During the exam, K.H. told the nurse that she had inserted a tampon sometime before the sexual encounter. The nurse used tweezers to find and remove it.
¶ 9 While K.H. was at the hospital, the responding officer went to Mr. Lenkart's house. Mr. Lenkart was asleep on his balcony. The officer woke Mr. Lenkart and told him that he was being arrested for raping K.H. Mr. Lenkart was angry. He told the officer, "This is bullshit. She raped me as much as I raped her." Later, Mr. Lenkart was formally charged with rape, forcible sodomy, and two counts of forcible sexual abuse.
¶ 10 Mr. Lenkart hired private counsel to defend him at trial. Mr. Lenkart asked his attorney about the physical evidence collected
¶ 11 Six witnesses testified at trial. The prosecution called K.H., her boyfriend, Ms. Rogers, the responding police officer, and the Code R nurse who examined K.H. at the hospital. The defense called only Mr. Lenkart.
¶ 12 K.H. testified first, followed by Mr. Calitri. Ms. Rogers was the prosecution's third witness. She was followed by the responding officer. This testimony recounted what K.H. had said about the evening's events. The nurse testified last, just before Mr. Lenkart. The nurse stated that in her opinion, K.H.'s injuries were consistent with forcible sexual conduct. The nurse also testified that K.H. told her she had inserted a tampon sometime earlier in the evening, but when she went to take it out the next morning, she could not find it. The nurse testified that she removed the tampon with tweezers. On cross-examination, the nurse acknowledged that although in her opinion K.H.'s injuries were caused by nonconsensual sexual conduct, it was possible that the injuries were consistent with consensual sexual conduct as well.
¶ 13 The jury convicted Mr. Lenkart of all charges. Mr. Lenkart was sentenced to five years to life for the rape and forcible sodomy charges, and one to fifteen years for each of the forcible sexual abuse charges. Mr. Lenkart's trial counsel then withdrew and Mr. Lenkart hired new counsel.
¶ 14 Following his sentencing hearing, Mr. Lenkart moved to arrest judgment and filed a motion for a new trial. Mr. Lenkart argued that a new trial was necessary because the verdict was not supported by the evidence and because his trial counsel was ineffective. Mr. Lenkart also argued that the trial court improperly admitted numerous hearsay statements, prior bad acts evidence, and evidence concerning the victim's chastity that violated the rape shield law.
¶ 15 In support of his motion for a new trial, Mr. Lenkart submitted an affidavit from Susan Bryner Brown, a reputable forensic nurse examiner
¶ 16 The trial court denied Mr. Lenkart's motion. The trial court concluded that Mr. Lenkart's counsel's representation may have been deficient, but that even if it was, Mr. Lenkart failed to demonstrate that he was prejudiced by the deficiency because Ms. Bryner Brown's testimony did not "necessarily establish [Mr. Lenkart's] innocence." The trial court did not find any of Mr. Lenkart's other arguments persuasive.
¶ 17 Mr. Lenkart also moved the trial court to order the State to identify the victim's mental health providers and to issue subpoenas for her mental health records. But because the trial court denied Mr. Lenkart's motion for a new trial, it concluded
¶ 18 Mr. Lenkart timely filed this direct appeal. We have jurisdiction under Utah Code section 78A-3-102(3)(I) (Supp.2010).
¶ 19 We need to address only the following two issues on appeal: (1) whether Mr. Lenkart's trial counsel was ineffective and (2) whether the trial court erred in denying Mr. Lenkart's motion for access to the victim's mental health records.
¶ 20 Typically, we review a denial of a motion for a new trial under an abuse of discretion standard.
¶ 21 Whether a trial court errs in denying a motion for access to a victim's mental health records is a question of privilege. "A [trial] court's decision regarding the existence of a privilege is a question of law ... and is reviewed for correctness."
¶ 22 On appeal, Mr. Lenkart advances several arguments in support of a new trial. First, Mr. Lenkart argues that his trial counsel was ineffective. Specifically, Mr. Lenkart claims that his trial counsel: (1) failed to investigate, analyze, and present physical evidence; (2) failed to formulate a defense theory and to request jury instructions consistent with that theory; (3) failed to obtain elements instructions addressing mens rea as to consent; (4) failed to ask the trial judge for jury instructions on mistake of fact; and (5) made several inconsistent statements throughout the trial. Second, Mr. Lenkart argues that the trial judge erred in several of its evidentiary rulings throughout the trial. Specifically, Mr. Lenkart argues the trial court improperly admitted several hearsay statements, prior bad acts evidence, and sexual predisposition evidence. Third, Mr. Lenkart argues that the prosecutor engaged in misconduct when she referenced statements made in the preliminary hearing and when she asked a witness to comment on the credibility of another witness' testimony. Fourth, Mr. Lenkart argues the trial judge erred when he summarily dismissed Mr. Lenkart's motion to arrest judgment. Finally, Mr. Lenkart asserts that the trial court should have resolved his mental health records motion before Mr. Lenkart filed this appeal. Mr. Lenkart argues that these errors, either individually, or cumulatively, require us to reverse his conviction and order a new trial.
¶ 23 The State disagrees that a new trial is warranted. First, the State argues that Mr. Lenkart has failed to establish any of his claims for ineffective assistance of counsel because he has failed to show that his trial counsel's performance "fell below an objective standard of reasonableness" or that he has suffered any prejudice as a result of his counsel's representation. Rather, the State asserts that Mr. Lenkart's trial counsel's actions were "tactical decisions" based on reasonable trial strategy. Next, the State argues that we should not address Mr. Lenkart's arguments regarding the trial judge's evidentiary errors or prosecutorial misconduct because these issues were not properly preserved. Finally, the State argues that the trial court did not err when it summarily denied Mr. Lenkart's motion to
¶ 24 We conclude that Mr. Lenkart's trial counsel rendered ineffective assistance when he failed to analyze and present certain exculpatory physical evidence that would have been available to him had he performed an adequate investigation. Although other aspects of the trial proceedings give us cause for concern, we do not reach the remainder of Mr. Lenkart's claims of error because trial counsel's performance, standing alone, was both deficient and prejudicial and warrants reversal.
¶ 25 The Sixth Amendment to the United States Constitution guarantees all defendants the right to effective assistance of counsel.
¶ 26 After reviewing the record in this case, we conclude that even under this deferential standard, Mr. Lenkart's trial counsel failed to render effective assistance. We first discuss and analyze the deficient performance prong of the Strickland test and then turn to the question of prejudice.
¶ 27 In order to demonstrate ineffective assistance of counsel, "the defendant must [first] show that counsel's performance was deficient."
¶ 28 A review of the record reveals that Mr. Lenkart's trial counsel failed to fulfill his duty to conduct an adequate investigation of the facts and evidence in this case, and thus, his performance was deficient under the first prong of the Strickland standard. We have repeatedly held that one of criminal defense counsel's most fundamental obligations is to investigate the underlying facts of a case.
¶ 29 Mr. Lenkart has demonstrated that his trial counsel failed to adequately investigate his case and that had his counsel done so, he would have been able to present exculpatory physical evidence at trial for the jury to consider. Shortly after hiring counsel to defend him, Mr. Lenkart asked his counsel to investigate the physical evidence in the case. A Code R kit was collected on the night of the sexual encounter and Mr. Lenkart wanted its contents analyzed. In a sworn affidavit, Mr. Lenkart states that he suggested to his attorney that he pursue testing and expert analysis of "all the physical evidence in the case, because [he] believed it would confirm the truthful testimony [he] would provide in court." In response, trial counsel stated that he would consult his own experts if he thought it was necessary. However, it is undisputed that prior to trial, the physical evidence from the Code R kit was never analyzed and the results of the post-trial analysis were never presented to the jury. The reason for counsel's decision not to investigate this evidence is unclear.
¶ 30 At trial, the State called the Code R nurse to testify. Mr. Lenkart's trial counsel did not call any experts to contradict or otherwise question her testimony. The Code R nurse told the jury that during the Code R examination, she observed vaginal tearing and that K.H. had complained of tenderness. The nurse also told the jury that she had to
¶ 31 Mr. Lenkart's attorney questioned the Code R nurse on cross-examination. And although the Code R nurse admitted it was possible that K.H.'s injuries could have been the result of consensual intercourse, Mr. Lenkart's trial counsel did not present any additional evidence or expert testimony to corroborate this conclusion. Thus, as to the physical evidence, the jury considered only the testimony of the Code R nurse, which strongly weighed in support of K.H.'s accusations.
¶ 32 The rest of the evidence presented to the jury primarily consisted of he-said-she-said statements from the parties involved, thus presenting a credibility contest between Mr. Lenkart and K.H. Mr. Lenkart told the jury his version of the events, and K.H. presented her conflicting testimony. The parties' testimony differed on two key points. First, was the issue of consent. Mr. Lenkart admitted to engaging in many of the same sexual acts K.H. described, but testified to the jury that K.H. consented to them. In contrast, K.H. testified that none of the acts were consensual, and that she asked Mr. Lenkart on numerous occasions to stop what he was doing. Second, although the parties agreed that they engaged in many of the same sexual acts, their testimony conflicted as to whether the parties engaged in oral sex, the act which formed the basis of Mr. Lenkart's sodomy charge. Mr. Lenkart testified that no oral sex occurred. K.H.'s testimony was the direct opposite. At trial, she stated that she specifically remembered that Mr. Lenkart "put his mouth on [her] genitals" and that she told him to stop. The jury must have believed K.H. because they found Mr. Lenkart guilty of all charges.
¶ 33 After trial, Mr. Lenkart fired his trial counsel and hired new counsel to prepare his motion for a new trial. His new counsel investigated the facts of the case and requested that the physical evidence be tested. The Code R kit was analyzed and Mr. Lenkart's new counsel submitted an affidavit from a reputable medical expert who concluded that the results of the Code R kit were more consistent with consensual rather than nonconsensual intercourse. Perhaps most significantly, the Code R test came back negative for the presence of salivary amylase, which directly supported the claim that no oral sex occurred.
¶ 34 The State counters that trial counsel's decision not to investigate or present physical evidence was a strategic decision. The State argues that trial counsel "reasonably could have concluded" that asking the state crime lab to test the Code R kit "would have undermined Defendant's consent defense" because if "the results came back positive [] it would have constituted irrefutable proof that [Mr. Lenkart] lied about not having oral sex with [K.H.]." The State also argues that Mr. Lenkart's expert would not have added anything at trial because the Code R nurse already admitted on cross-examination that the Code R evidence was also consistent with consensual intercourse. We are unpersuaded by these arguments.
¶ 35 We cannot imagine a circumstance in which trial counsel could justify declining to test physical evidence that his client reasonably believes would be exculpatory. Mr. Lenkart asked his attorney to test the physical evidence because he was confident it would support his version of the events. Trial counsel had no reason to disbelieve Mr. Lenkart and had little to lose in performing the investigation. The decision of Mr. Lenkart's trial counsel not to investigate this evidence cannot "constitute a strategic decision."
¶ 36 We conclude that Mr. Lenkart's trial counsel rendered deficient performance when he failed to seek testing of the physical evidence in this case. His trial counsel should have made an "adequate inquiry" into the facts and available evidence in the case before making a reasonable decision on how to proceed.
¶ 37 Having concluded that Mr. Lenkart's trial counsel's performance was deficient, we now turn to the question of whether this deficient performance resulted in prejudice. We conclude that it did.
¶ 38 Once a defendant demonstrates that his trial counsel's performance
¶ 39 While the trial court stated that Mr. Lenkart's trial counsel may have rendered deficient performance, the trial judge concluded that Mr. Lenkart failed to show that he was prejudiced by his counsel's errors. In its order denying Mr. Lenkart's motion for a new trial, the trial judge stated, "Although Ms. Bryner Brown's affidavit might have added some credibility to [Mr. Lenkart's] account, in light of [the Code R nurse's] admissions, Ms. Bryner Brown's testimony would not have been material ... and does not change the evidentiary picture presented to the jury." We disagree.
¶ 40 We conclude that Mr. Lenkart's trial counsel's failure to investigate and present an expert opinion concerning the presence of physical exculpatory evidence to the jury was a prejudicial error affecting the entire evidentiary picture at trial. This error undermines our confidence in the outcome of Mr. Lenkart's trial.
¶ 41 We conclude that if Mr. Lenkart's trial counsel had presented the Code R kit test results at trial, it would have affected the entire evidentiary picture. As discussed above, the narrative at trial was largely a credibility contest between Mr. Lenkart and K.H. K.H. presented her version of the events, which was followed largely by cumulative testimony of her statements to others. Mr. Lenkart offered a different version of the night's events. The Code R nurse's testimony on direct examination supported K.H.'s testimony, and the prosecutor heavily referenced and emphasized this testimony throughout the proceedings. For example, in closing argument the prosecutor stated:
The prosecutor also used the Code R nurse's testimony to make an argument about K.H.'s tampon. She told the jury:
And finally, the prosecutor's closing argument also emphasized the untested Code R kit to support the sodomy charge:
These statements reveal that the limited testimony of the Code R nurse was central to
¶ 42 We also conclude that Mr. Lenkart's conviction was "not strongly supported by the record."
¶ 43 The rape trial was largely a credibility contest between Mr. Lenkart and K.H. At the time of trial, the Code R kit had not been analyzed. The Code R nurse was the only expert who testified about the physical evidence at trial. Her testimony on direct examination concerned only her examination of K.H. on the night of the encounter; it did not concern the results of the Code R analysis. The Code R nurse testified that her observations supported a nonconsensual encounter. But on cross-examination, she stated that the physical evidence was also consistent with a consensual encounter. Thus, the testimony surrounding the physical evidence was particularly equivocal.
¶ 44 We conclude that had the post-trial physical evidence been presented to the jury, it would have changed the record completely. It would have changed the way the jury evaluated the credibility of the parties; it would have injected doubt into the prosecution's case. We are confident that had the jury been able to consider the existence of physical exculpatory evidence in support of Mr. Lenkart's testimony, there is a reasonable probability that the outcome of the trial would have been different. Mr. Lenkart's trial counsel's decision not to investigate or present this evidence deprived Mr. Lenkart of that opportunity.
¶ 45 We conclude that both prongs of the Strickland test have been satisfied and therefore, Mr. Lenkart was denied his constitutional right to effective assistance of counsel. We therefore reverse the order of the trial court, vacate Mr. Lenkart's conviction, and remand for a new trial.
¶ 46 Having concluded that Mr. Lenkart has met his burden to establish that his
¶ 47 Utah Rule of Evidence 506(b) "protects, as privileged, communications between a health care provider and a patient if the communications are made `in confidence and for the purpose of diagnosing and treating the patient.'"
¶ 48 Under rule 506(d)(1) "[n]o privilege exists under this rule ... [if the patient's] physical, mental, or emotional condition... is an element of any claim or defense."
¶ 49 Because Worthen was decided after the briefs in this case were filed, the parties were not able to frame their arguments in light of this new analysis. We thus conclude that it is appropriate to reverse the trial court's decision to deny Mr. Lenkart's motion and remand this issue to the trial court for consideration on the merits in the light of Worthen. On remand, we instruct the trial court to use the Worthen analysis to guide its decision.
¶ 50 Mr. Lenkart's trial counsel rendered ineffective assistance of counsel when he failed to investigate and present certain exculpatory physical evidence that would have significantly altered the evidentiary picture presented to the jury. Because we find this error to be both deficient and prejudicial, we remand this case for a new trial. On remand, we instruct the trial court to consider the merits of Mr. Lenkart's motion for access
¶ 51 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice PARRISH, and Justice LEE concur in Justice NEHRING's opinion.
Although the State's letter does not comport with the requirements of Utah Rule of Appellate Procedure 24(j), no purpose would be served in striking the State's letter in this case. See Beynon v. St. George-Dixie Lodge # 1743, Benevolent & Protective Order of Elks, 854 P.2d 513, 519 (Utah 1993) (stating that in spite of a rule 24(j) violation, no purpose would be served in striking the supplemental letter, but cautioning future parties to "refrain from stretching the boundaries of what is acceptable under rule 24(j)"). Regardless of whether Mr. Lenkart had personal knowledge as to whether his trial counsel consulted experts about the physical evidence, the State does not dispute that Mr. Lenkart's trial counsel failed to have the physical evidence from the Code R kit tested. Thus, the State's letter is immaterial to the outcome of this case and we need not entertain this issue.
