Monday, May 15, 2006

I'm not sure why this opinion was published, as it does not seem to resolve any important legal issues.

Loose v. State, 2006 UT App 149

Loose was convicted of sexually abusing his step-daughter. On direct appeal, the Utah Supreme Court affirmed his convictions over evidentiary challenges and a claim of newly discovered evidence. Loose then filed a post-conviction petition that ultimately resulted in the instant opinion from the court of appeals.

The court of appeals held that Loose could have raised most of the post-conviction claims on direct appeal, but did not. Those claims were thus procedurally barred and reviewed only for ineffective assistance of appellate counsel. The court then held that appellate counsel was not ineffective for raising the claims on direct appeal because they had no merit.

The only claim not reviewed for ineffective assistance of appellate counsel was Loose's newly discovered evidence claim. Loose wanted a new trial based on evidence that the victim had recanted her testimony. The court of appeals held that Loose was not entitled to a new trial because the evidence did not meet any portion of the newly discovered evidence test. That is, the evidence could have been discovered with reasonable diligence, it was merely cumulative, it was merely impeachment evidence, and a reasonable trier of fact could have considered the evidence and still found Loose guilty.


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