This opinion is subject to revision beforepublication in the Pacific R - PDF document

This opinion is subject to revision beforepublication in the Pacific Reporter.Attorneys:Margaret P. Lindsay and Douglas J. Thompson, Spanish¶1Defendant Norman Prows appeals his conviction for aggravated¶2After some concern and questioning by her mother, the 1The false-friend technique is where police officersrepresent to a suspect that they are his friends and are acting State v. Rettenberger , 1999 UT 80,¶ 24, 984 P.2d 1009.This technique is commonly used in policeId. 20080453-CA2¶3In their questioning, the police officers used the false-¶4Prows later attempted to have his confession suppressed. 20080453-CA3¶5At trial, the victim testified as to the sexual abuse she¶6The jury ultimately returned a guilty verdict on one count¶7Prows first claims that his confession was coerced and that ¶8Prows alternatively argues that he should have been allowed State v. Adams , 2000 UT 42, ¶ 9, 5 P.3d642. 20080453-CA4¶9Prows argues that the trial court's refusal to suppress his U.S. Const. amends. V, XIV. "'In theface of a challenge to the voluntariness of a statement or , 1999 UT 80, ¶ 45 (quoting State v. Allen , 839 P.2d291, 300 (Utah 1992)). "'[T]he totality of circumstances ¶ 14 (alterations inoriginal) (quoting State v. Strain , 779 P.2d 221, 225 (Utah1989)). When considering the details of the interrogation, we When considering thecharacteristics of the accused, we address subjective factors ¶ 15. In sum, we look at all the abovefactors "to determine whether the interrogators exploited ¶ 19 (internal quotation marksomitted); see also id. ¶ 11 ("[A]nalysis of whether admission ofa confession into evidence violates the Fifth or Fourteenth U.S. Const. amend V. (providing that noperson "shall be compelled ¶10Each of the external factors indicate a lack of coercion in State v. Montero , 2008 UT App 285, ¶ 12, 191 P.3d 828(stating, in considering an interrogation that was "off and on" 2We also recognize that the police officers allowed Prows toconsult with his attorney in private upon request. And although3Prows also makes an ineffective assistance of counselargument. "[I]n reviewing counsel's performance, we give trial , 1999 UT 32, ¶ 20, 984P.2d 376. Even assuming that the right to effective assistance4Prows acknowledges that the police officers did not makeany threats relating to his eventual punishment, yet he argues Colorado v. Connelly , 479 U.S. 157, 170 (1986) ("[T]he Fifth Amendmentprivilege is not concerned with moral and psychological pressures 20080453-CA5 id. ¶ 13 ("[W]e think it eminently reasonable that police officers2 Third, there was no police trickery other than the use of the Rettenberger , 1999 UT 80, ¶ 28. Fourth, Prows had an attorney present during the entirety of the3 Fifth, the police officers didnot make "a threat of greater punishment or a promise for lesser4 See id. 4(...continued)221, 225 (Utah 1989) ("[A]ppeals to the defendant that full5Prows also argues that he was suffering from a lack ofsleep. But the trial court found that Prows had slept the night Chen v. Stewart 20080453-CA6¶11While "a determination of involuntariness cannot be ¶12"We now consider [these] subjective characteristics, , 1999 UT 80,¶ 37, 984 P.2d 1009. We see nothing that would have alerted the 6[E]vidence surrounding the making determination doesnot undercut the defendant's during the course ofthe trial. Crane v. Kentucky 20080453-CA7¶13Prows alternatively argues that the trial court should have , 775 P.2d 388, 391 (Utah1989); see also ¶14In State v. Adams , 2000 UT 42, 5 P.3d 642, the supreme courtwas confronted with an issue similar to that in the instant case 20080453-CA8 ¶ 6. The supremecourt determined that such testimony was not barred by rule 608 id. ¶¶ 13-14. The court explained, "Althoughthis is a subtle distinction, and one may infer from [the ¶ 13. Thus, rule 608 "does not prohibit anexpert . . . from giving testimony from which a jury could infer ¶15Applying this concept to the instant case, the testimony id. ¶16In its brief, the State argues that even if the expert 7Prows argues that because the error "implicates" hisconstitutional right to "'a meaningful opportunity to present a , 476 U.S. 683, 690(1986)), we must reverse unless the error was harmless beyond a State v. Velarde , 734 P.2d 440,444 (Utah 1986) ("Before federal constitutional error can be held , id. (reviewing the admission ofstatements obtained in violation of Miranda ). When the supremecourt has before addressed the type of error that occurred here-- State v. Clopten while--while she was in the bed with [Prows]."20080453-CA9¶17"[W]e find errors by the trial court harmful only if there Clopten , 2009 UT 84, ¶ 39, 223 P.3d 1103.7 Under the facts ofthis case, we do not think the error was harmful. First, the8 Additionally, the victim's mother testified that Prowscalled her the night before his police interview and tearfully 20080453-CA10¶18The trial court did not err in its refusal to suppress¶19WE CONCUR: