PROVO A judge has denied a new trial for a former restaurant manager whose attorney now believes his own evidence may have negatively prejudiced the jury.
Former Provo Fazoli's manager J.W. Craig Lamoreaux, 33, was convicted by a jury in March of one felony count of attempted forcible sex abuse for allegedly putting his hand down the pants of and making sexual advances toward a 17-year-old female employee in March 2007.
Defense attorney Andrew McCullough argued that Lamoreaux should be given a new trial because in closing arguments, the prosecutor referred to hearsay statements that McCullough had introduced.
"If it was error, it was invited error brought in by the defense," 4th District Judge Claudia Laycock ruled. "Prosecutors had every right to comment on testimony that had come in without any objection."
The evidence was a DVD-recorded interview of the victim during which she told police Lamoreaux had mentioned he was transferred from the Orem store to the Provo store because of other flirtatious acts.
That has since been rebutted by an affidavit from a regional manager, who said that no harassment had occurred in Orem. However, McCullough argued the false allegations may have biased the jury.
"The state suggests that by playing part of the interview with the young lady that I opened things," McCullough said. "The problem is, I obviously didn't anticipate the way he would go with that. I wasn't ready to bring in witnesses (to rebut that)."
Laycock commented that the interview wasn't new and the manager could have been brought to trial.
"It was (McCullough's) obligation to be prepared," Laycock said. "He was the one who introduced it into evidence, not the state, and when this statement came up ... on the tape, it is his obligation to deal with it."
The victim's interview could have been redacted, or had parts taken out, as was done with an interview of Lamoreaux, Laycock said. But that issue was never discussed.
Prosecutor Chad Grunander called the situation an "invited error" by defense.
"You can't have it both ways," Grunander said. "If you're going to introduce it, it may cut your way, but it may cut the other way. It is counsel's responsibility to judge that."
McCullough never objected when the DVD was played, and he didn't object when trial prosecutor Randy Kennard mentioned the DVD interview briefly during closing arguments.
Kennard asked the jury to consider why someone would be transferred because of a "paperwork issue" the excuse given at the time of trial.
He told the jury not to "hang their hat" on that piece of evidence but to consider it as one more piece of the puzzle, Laycock said, reading from a transcript of the trial.
"The last question," Laycock said. "Even if it is error, is it error that would prejudice the jury? I don't find that that was anything that would have derailed the jury from considering the real facts in this matter."McCullough has 30 days to appeal the decision after Laycock signs the final order.
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