State v. Rees

2004 UT App 51, 88 P.3d 359, 495 Utah Adv. Rep. 15, 2004 Utah App. LEXIS 25

• Court: Court of Appeals of Utah
• Decided: March 11, 2004
• Docket: Case No. 20011026-CA
• Status: Published

Opinions

MEMORANDUM DECISION

BENCH, Associate Presiding Judge:

¶ 1 Colby Rees appeals his conviction of Attempted Forcible Sexual Abuse, a third degree felony, in violation of Utah Code Annotated Sections 76-5-404 and 76-4-101 (2003). We affirm.

¶2 Rees essentially argues that evidence of his prior conviction was inadmissible character evidence pursuant to Utah Rule of Evidence 404(b). When analyzing the admissibility of bad-acts evidence, the trial court must determine “(1) whether the evidence is being offered for a proper, non-character purpose under rule 404(b), (2) whether such evidence meets the requirements of rule 402, and (3) whether the evidence meets the requirement of rule 403.” State v. Decorso, 1999 UT 57, ¶ 20, 993 P.2d 837, cert. denied, 528 U.S. 1164, 120 S.Ct. 1181, 145 L.Ed.2d 1088 (2002).

¶3 At trial, the State argued that the purpose in offering evidence of Rees’s past sexual offense was to show his “motive, intent to gratify his sexual desires, and absence of mistake or accident,” and the victim’s lack of consent. His past actions— making a sexual remark and inappropriately touching a woman in a parking lot — are consistent with the allegation that Rees was attempting to gratify “sexual desire” when he took the hand of the victim and pulled her down toward his erect and exposed penis. Utah Code Ann. § 76-5-404(1). Motive, intent, or absence of mistake or accident are purposes expressly allowed under rule 404(b). Accordingly, the evidence was properly offered for non-character purposes.

¶ 4 The next inquiry is “whether the bad acts evidence meets the requirements of rule 402, which permits admission of only relevant evidence.” State v. Nelson-Waggoner, 2000 UT 59, ¶ 19, 6 P.3d 1120. Rule 401 of the Utah Rules of Evidence defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” However, “unless the other crimes evidence tends to prove some fact that is material to the crime charged — other than the defendant’s propensity to commit crime — it is irrelevant and should be excluded.” Decorso, 1999 UT 57 at ¶ 22, 993 P.2d 837. Prior bad-acts evidence “ ⅛ both relevant and material to the issue of consent.’ ” Nelson-Waggoner, 2000 UT 59 at ¶ 24, 6 P.3d 1120 (citation omitted). Furthermore, intent is an essential element of the charges against Rees, and thus relevant. Therefore, the bad-acts evidence is relevant pursuant to rule 402.

¶ 5 The final inquiry is whether the probative value of the evidence was outweighed by the danger of unfair prejudice, pursuant to rule 403. In determining whether the evidence of Rees’s prior conviction met the requirements of rule 403,

“ ‘a variety of matters must be considered, including the strength of the evidence as to the commission of that crime, the similarities between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree which the evidence probably will rouse the jury to overmastering hostility.’ ”

Nelson-Waggoner, 2000 UT 59 at ¶ 20, 6 P.3d 1120 (quoting Decorso, 1999 UT 57 at ¶ 29, 993 P.2d 837) (other citations omitted). A review of the record reveals that the trial court properly considered these matters. First, there were several similarities between the two crimes including the fact that both “involved the uninvited obscene touching of completely unknown women for the purpose of sexual gratification.” State v. Rees, 2002 UT App 347. Second, the time between the incidents was only four months. Because “ ‘proximity in time combined with similarity in type of crime virtually guarantees admittance of prior acts evidence,’ ” Nelson-Waggoner, 2000 UT ¶ 59 at 29, 6 P.3d 1120 (citation omitted), “the combination of these two factors makes the bad acts evidence in this case highly probative.” Id. Furthermore, the need for the evidence was great. It was essentially the only evidence of Rees’s intent, other than the victim’s speculation. Finally, there is no reasonable indication that the evidence would rouse the jury to “overmastering hostility.” Id. at ¶ 20. The trial court therefore properly admitted the evidence.

¶ 6 Additionally, Rees claims that the evidence failed to prove that he attempted to use force, threat, or intimidation to overcome the victim’s earnest resistance. See Utah Code Ann. § 76-5-406 (1988). However, Rees relies on an old and inapplicable version of the statute.¹ While the 1988 version defines “without consent” as a use of force or threat to overcome the victim’s earnest resistance, the version applicable in this case provides that lack of consent can be merely expressed “through words or conduct.” Utah Code Ann. § 76-5-406 (2003). Language requiring that the victim earnestly resist is eliminated. Thus forcible sexual abuse “may be prosecuted solely on the basis of lack of consent by the victim, absent any actual force or violence.” State v. Hammond, 2001 UT 92, ¶ 16, 34 P.3d 773. “ ‘The determination of whether ... consent was present or absent in any given case is factual in nature, and is thus a matter for determination by the finder of fact.’ ” In re J.F.S., 803 P.2d 1254, 1257 (Utah Ct.App.1990) (citation omitted). In reviewing a jury verdict, we accord “high deference to the fact-finder” and do not “substitute our judgment for that of the fact-finder.” State v. Hamilton, 2003 UT 22, ¶ 38, 70 P.3d 111 (other quotations and citation omitted). In this case, there was sufficient evidence of lack of consent to justify the jury’s verdict.

¶ 7 We therefore affirm.

¶ 8 I CONCUR IN THE RESULT: GREGORY K. ORME, Judge.

1 . Rees also argues that he was denied due process when the trial court refused to give his proposed jury instructions regarding the “lack of consent” element of the crime. However, because Rees relied on an old and inapplicable version of the statute, the court properly refused "to give an instruction that misstates the law.” State v. Hamilton, 827 P.2d 232, 238 (Utah 1992).