## Facts

- Scott Kirby Patterson lived with his wife and stepdaughter and sexually abused the child over roughly ten months beginning in February 2008.
- The child disclosed the first incident to her mother; Patterson denied it, and the child later recanted to avoid family disruption.
- In late December 2008, the mother confronted Patterson again; he admitted molesting the child twice, and the mother moved out, filed for divorce, and contacted a church bishop for assistance.
- After criminal charges were filed, Patterson met with the bishop in what he later characterized as a confidential confession and admitted the abuse.
- Defense counsel retained a doctor to conduct a psychosexual evaluation for sentencing/treatment; Patterson approved inclusion of his bishop confession and consented to disclosure of the report to the court and prosecutor.
- The prosecutor warned that if Patterson testified and denied abuse, the State would use the evaluation report (including the bishop-related admission) to impeach him; Patterson chose not to testify.
- A jury convicted Patterson of two counts of aggravated sexual abuse of a child and two counts of lewdness involving a child.
- On appeal, the court ordered a remand for fact-finding on whether Patterson would have testified and what he would have said; Patterson and trial counsel testified he would have denied the abuse.

## Issues

1. Whether trial counsel was ineffective for failing to assert the clergy–penitent privilege to bar the State’s use of Patterson’s bishop confession, as reflected in the psychosexual evaluation disclosed to the prosecution.
2. Whether Patterson showed Strickland prejudice, including that counsel’s handling of the privilege and evaluation caused him not to testify and created a reasonable probability of a different verdict.

## Decision

- The Utah Court of Appeals affirmed the convictions.
- The court held Patterson waived any clergy–penitent privilege as to his bishop confession by voluntarily disclosing it to the evaluator and consenting to dissemination of the report to the court and prosecution.
- Because the privilege had been waived, a privilege-based objection would have been futile; counsel was not deficient for failing to raise it.
- Patterson failed to show prejudice because, even without the bishop-related statements, the State had substantial evidence and other impeachment material, including Patterson’s admission to the mother and the child’s testimony.

## Legal Principles

- Clergy–penitent privilege protects qualifying confidential spiritual communications, but the privilege is waived when the holder voluntarily discloses or consents to disclosure of a significant part of the privileged matter; waiver permits use of the matter, including for impeachment.
- Ineffective assistance requires deficient performance and prejudice; counsel is not ineffective for failing to make a meritless objection.
- A defendant’s decision not to testify based on counsel’s advice does not establish constitutional error absent a showing that the advice was deficient and that the deficiency likely affected the outcome.
- “Active” waiver—affirmatively allowing or introducing challenged evidence—differs from mere failure to object and bars later claims premised on excluding that evidence.

## Conclusion

Patterson’s voluntary inclusion of his bishop confession in a psychosexual evaluation and his consent to disclose that report to the prosecution waived any clergy–penitent privilege, so trial counsel was not ineffective for failing to assert the privilege, and Patterson did not show a reasonable probability that testifying would have changed the verdict; the convictions were affirmed.


State v. Patterson, 2013 UT App 11, 294 P.3d 662 (Utah Ct. App. 2013)