2006 UT 13
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah,
No. 20040586
Plaintiff and Respondent,
v.
F I L E D
Ricky Billsie,
Defendant and Petitioner.
February 28, 2006
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Fifth District, St. George
The Honorable James L. Shumate
No. 021500113
Attorneys: Mark L. Shurtleff, Att'y Gen., Christine Soltis,
Asst. Att'y Gen., Salt Lake City, Ryan J. Shaum,
Washington County, for plaintiff
Margaret P. Lindsay, Orem, Patrick V. Lindsay,
Provo, for defendant
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On Certiorari to the Utah Court of Appeals
WILKINS, Associate Chief Justice:
¶1
Ricky Billsie seeks review of the court of appeals'
decision upholding the trial court's refusal to exclude, pursuant
to rule 615 of the Utah Rules of Evidence, the child-victim's
mother from the courtroom during the child's testimony. We
affirm.
BACKGROUND
¶2
The Defendant, Ricky Billsie, was charged with one
count of sodomy of a child, two counts of rape of a child, and
three counts of aggravated sexual abuse of a child, all of which
are first degree felonies. During the preliminary hearing, the
charge of sodomy of a child was dismissed, and the Defendant was
bound over for trial on the remaining charges. At the conclusion
of the trial, the jury found the Defendant guilty of the three
counts of aggravated sexual abuse of a child and acquitted him as
to the two counts of rape of a child. The Defendant was

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sentenced to three indeterminate terms of not less than five
years to life, with each sentence to run consecutively.
¶3
The victim in this case is a young girl. At the time
of the trial, the victim was eight years old; however, during the
time of the abuse she was between the ages of six and seven years
old.
¶4
At trial, the Defendant moved to exclude witnesses from
the courtroom pursuant to rule 615 of the Utah Rules of Evidence.
The prosecution sought an exemption from the exclusion for the
victim's mother even though she was expected to be a witness.
The trial court granted the exemption and permitted the mother to
not only remain in the courtroom but to also sit behind the
victim during the victim's testimony. The Defendant objected to
the mother being allowed to remain in the courtroom on the basis
that it was the mother who had convinced the victim to falsely
allege the abuse.
¶5
The Defendant appealed his convictions. The court of
appeals affirmed the convictions,1 including the trial court's
decision to allow the mother to remain in the courtroom despite
her status as a witness.2 We granted the Defendant's petition
for certiorari.
STANDARD OF REVIEW
¶6
On certiorari, we review the decision of the court of
appeals, not the trial court.3 The trial court's decision to
exempt a witness from exclusion under rule 615 is reviewed for
abuse of discretion, and "[i]f the challenged practice is not

1 In this instance, there is no majority opinion from the
court of appeals. Of the three judges on the panel, one
dissented without explanation, one concurred in the result
without explanation, and one wrote the "opinion" which expresses
only the views of that judge. As a result, the parties, the
trial courts, this court, and the public at large are left to
wonder on what basis, and on what reasoning, the Defendant's
convictions were upheld. Although such a practice is not
specifically forbidden, it fails to adequately explain the action
of the court, and as such is best avoided.

2 State v. Billsie, 2004 UT App 158U.

3 Salt Lake County v. Metro W. Ready Mix, Inc., 2004 UT 23,
¶ 11, 89 P.3d 155.
No. 20040586
2

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inherently prejudicial, or the defendant fails to show actual
prejudice, the judgment of the trial court will be affirmed."4
ANALYSIS
¶7
The question before us is whether it was error to
permit the victim's mother to sit behind the victim while she
testified, where the mother was also a witness in the case. The
Defendant argues that rule 615 required the mother, as a witness,
to be excluded, and that even if it were permissible to allow her
to remain in the courtroom, it was error to allow her to sit
directly behind the victim during the child's testimony. We
address these arguments in turn.
I. RULE 615 DOES NOT REQUIRE THAT THE MOTHER BE EXCLUDED
¶8
We have often said that "[t]he trial judge has broad
latitude to control and manage the proceedings and preserve the
integrity of the trial process."5 As limited by rule 615,6 Utah
Code section 78-7-4 provides that it is within the trial court's
discretion "during the examination of a witness [to] exclude any
and all other witnesses in the cause."7 Rule 615 allows a party
to request that the judge exclude witnesses from the courtroom in
order to prevent them from hearing the testimony of other
witnesses.8 The rule requires the exclusion of witnesses when
requested by a party, but also grants the trial court discretion
to exempt some categories of witnesses from the mandatory
exclusion.9
¶9
While several exemptions are listed, the pertinent
exemption here is found in rule 615(1)(c). It states:

4 State v. Harrison, 2001 UT 33, ¶ 6, 24 P.3d 936 (citing
Holbrook v. Flynn, 475 U.S. 560, 572 (1986)).

5 Harrison, 2001 UT 33, ¶ 6.

6 See Astill v. Clark, 956 P.2d 1081, 1087 (Utah Ct. App.
1998) ("Rule 615(1)(c) . . . limits a court's discretion to
exclude a witness . . . .").

7 Utah Code Ann. § 78-7-4 (2005).

8 See Utah R. Evid. 615(1) (2005).

9 Id.
3
No. 20040586

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(1) At the request of a party the court shall
order witnesses excluded so that they cannot
hear the testimony of other witnesses, and it
may make the order on its own motion. This
rule does not authorize exclusion of:
. . . .
(c) a person whose presence is shown by
a party to be essential to the presentation
of the party's cause[.]10
The trial court is afforded considerable latitude in determining
whether a person's presence is essential. However, once the
trial court makes that determination, that witness must be
allowed to remain in the courtroom.
¶10
It is important to remember that the purpose behind
rule 615 is "directed toward preventing witnesses from changing
their testimony based on other evidence adduced at trial."11 No
such implication of changed testimony by the mother has been
raised here.
¶11
The trial judge explained that his decision allowing
the mother to remain in the courtroom was based on matters
disclosed at the preliminary hearing. Specifically, the trial
court expressed concern with the victim's discomfort and
sensitivities due to her young age and felt that her mother
should be allowed to remain with her. The decision to allow the
child-victim's mother to remain in the courtroom was well within
the trial court's discretion.
¶12
In addition, the Defendant fails to call our attention
to any actual prejudice resulting from the nonexclusion of the
mother. Instead he would have us presume prejudice. "When an
exclusion order has been violated, the burden is on the accused
to demonstrate that he has been prejudiced to the extent that a
mistrial should be granted."12 The Defendant has not met that
burden.

10 Utah R. Evid. 615(1)(c).

11 State v. Cramer, 2002 UT 9, ¶ 31, 44 P.3d 690; see also
Astill, 956 P.2d at 1087 ("The purpose behind excluding witnesses
. . . is to prevent witnesses from being influenced or tainted
. . . .").

12 State v. McGrath, 749 P.2d 631, 634 (Utah 1988).
No. 20040586
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II. ALLOWING THE MOTHER TO REMAIN IN THE COURTROOM AND SIT
DIRECTLY BEHIND THE VICTIM WAS NOT ERROR
¶13
Having found that allowing the mother to remain in the
courtroom was within the trial court's discretion and did not
violate rule 615, we now consider whether it was harmful error to
allow the mother to sit behind the child-victim during the
victim's testimony. It is the policy of this state that child
victims and child witnesses are to be afforded extra
consideration in our criminal trial process. Utah Code section
77-37-1(2) states:
The legislature finds it is necessary to
provide child victims and child witnesses
with additional consideration and different
treatment than that usually afforded to
adults. The treatment should ensure that
children's participation in the criminal
justice process be conducted in the most
effective and least traumatic, intrusive, or
intimidating manner.13
¶14
Children called to testify may have an adult accompany
them while on the witness stand.14 Permitting an adult to
accompany a child witness is not mandatory, but is left to the
discretion of the trial court.15
¶15
In this case, the victim was an eight-year-old child at
the time of trial. The trial court determined that the victim
was in need of comfort or support in order to testify, due to her
young age and sensitivities. Allowing an adult to accompany the
child-victim while she testified was well within the discretion
of the court. Moreover, allowing the victim's mother to be that
adult was also clearly within the discretion afforded the trial
court.
¶16
Having thus exercised its discretion, the trial court
has the responsibility to assure that the adult who accompanies

13 Utah Code Ann. § 77-37-1(2) (2005).

14 See State v. Harrison, 2001 UT 33, ¶ 7, 24 P.3d 936;
State v. Hoyt, 806 P.2d 204, 210 (Utah Ct. App. 1991); see also
State v. Kelley, 328 P.2d 724, 725 (Utah 1958) (finding it
appropriate to have allowed a school officer to sit next to the
child victim/witness while the child was on the witness stand).

15 See Harrison, 2001 UT 33, ¶ 11.
5
No. 20040586

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the child-witness does not improperly influence the child's
testimony. Here, the trial court required the mother to sit
behind the victim during the child's testimony. The mother was
not able to make eye contact or gesture to the child as the child
testified. The mother and the child were both within the clear
view of the judge, who was able to observe any interactions and
ensure that no inappropriate bolstering or influence occurred.
Had there been any inappropriate behavior, the trial court would
have been able to correct the situation immediately. Considering
these factors, we are not persuaded that the trial court abused
its discretion in allowing the mother to sit behind the child-
victim during the child's testimony. The court of appeals was
correct to affirm the convictions.
CONCLUSION
¶17
Rule 615 does not require the trial court to exclude
the child-victim's mother from the courtroom. In addition,
allowing the victim's mother to sit behind the eight-year-old
victim while she testified was not error. Consequently, the
trial court did not abuse its discretion when it exempted the
mother from exclusion and allowed her to sit behind the victim
during the child's testimony. Accordingly, we affirm the court
of appeals' decision and the Defendant's convictions.

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¶18
Chief Justice Durham, Justice Durrant, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Wilkins'
opinion.
No. 20040586
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