Failure to Have Physical Evidence Examined = Ineffective Assistance of Counsel

State of Utah v. Lenkart, 2011 UT 27 (Utah Supreme Court, May 17, 2011).

Lenkart engaged in sexual intercourse with K.H. (alleged victim) after an evening of heavy drinking.  K.H. claimed that she somehow ended up in Lenkart’s bed and awoke to Lenkart performing oral sex on her, told him to stop and passed out.  She then awoke to him penetrating her—she told him to stop and she left his home.  A code R examination was conducted.  Lenkart disputed the testimony stating that she climbed into his bed, the acts were consensual, and that there was no oral sex.

At trial, the nurse who conducted the Code R examination testified that she had to use tweezers to remove a tampon that had been lodged in K.H.  The nurse testified that the lodging of the tampon was consistent with nonconsensual intercourse.  Lenkart’s counsel never had his own expert review the Code R kit and presented no expert evidence to dispute the nurse’s testimony.

Lenkart was convicted of forcible sodomy and two counts of forcible sexual abuse.  He appealed arguing that his counsel was ineffective for failing to have the Code R kit examined by another expert.   Post-trial Lenkart had the kit examined by and expert who opined that the lodging of the tampon was consistent with consensual sex, and that the swabs in the Code R kit were negative for saliva which indicates that there was no oral sex.

The Trial court denied Lenkart’s motion for a new trial.  Lenkart appealed.

On appeal, the Supreme Court found that failure to have an expert examine the Code R kit was a failure to investigate by his counsel and that based on the proffered testimony of Defense expert that contradicts the victim’s testimony and that of the State’s expert such a deficiency was prejudicial to Lenkart.

Note: Court also address access and admission of medical records.

Full Decision available at  http://www.utcourts.gov/opinions/supopin/Lenkart051711.pdf