State v. Stephens

667 P.2d 586, 1983 Utah LEXIS 1080

• Court: Utah Supreme Court
• Decided: June 20, 1983
• Docket: 16190
• Status: Published

Opinions

SAWAYA, District Judge:

Defendant, Charles Bryant Stephens, was charged and convicted of burglary, pursuant to U.C.A., 1953, § 76-6-202. The defendant was sentenced to an indeterminate prison term of 0-5 years. On appeal he contends that the court’s exclusion of certain testimony constituted prejudicial error warranting reversal of his conviction or, in the alternative, a new trial.

At the trial of the defendant, the following facts were established. On July 31, 1978, at approximately 12:51 a.m., two deputy sheriffs were dispatched to the area of 5160 South and 3760 West in Salt Lake County in response to a prowler complaint phoned in by a citizen. Upon their arrival at the scene, the officers discovered a broken basement window in the rear of a residence suspected to be the scene of the burglary. One of the deputies observed a dim light moving within the house and a large bundle being placed outside of the broken glass window. A third officer arrived on the scene, and the three officers subsequently entered the home and arrested the defendant and one Larry Yarrington. Larry Yarrington later pleaded guilty to the charge of burglary.

At the trial, Larry Yarrington testified that the defendant is married to his sister. According to Yarrington, the defendant and the defendant’s wife had custody of Yar-rington’s two younger brothers and that he committed the theft because of the financial straits of defendant’s family. Yarring-ton testified that the defendant drove him to the scene, unaware of Yarrington’s burglary plans, and that when told of the plans, the defendant refused to participate and left the scene. Yarrington testified that he then went to the rear of the house, broke through a window, and entered. According to Yarrington, he was inside the house approximately 15 minutes before he was interrupted by the defendant who had entered the house and who told Yarrington to “forget about doing this burglary” and to “get out of here.” Shortly thereafter, both of them were arrested inside the house.

The defendant then took the stand and testified to essentially the same facts as did Larry Yarrington. The defendant testified that he did not intend to commit a theft and that his only purpose in returning to the scene and in entering the house was to get his brother-in-law, Yarrington, out of the house.

The defense called Virginia Yarring-ton Stephens, the defendant’s wife and Yar-rington’s sister, to the stand. Defense counsel attempted to elicit testimony regarding Yarrington’s tendency to be rash and impulsive, and, when met with objection, argued its admissibility pursuant to Rules 46 and 47 of the Utah Rules of Evidence (U.R.E.). The court excluded the proffered testimony pursuant to its discretionary power under U.R.E. 45. The court stated that Yarrington’s character was not in issue and that its relevance, if any at all, was extremely limited.

On appeal, defendant contends that the evidence should have been admitted under Rule 47, U.R.E. In State v. Peterson, Utah, 560 P.2d 1387 (1977), we held as follows:

Rule 47, U.R.E., is qualified by a provision requiring the evidence be “relevant.” The committee’s note states:

The admission or rejection of character evidence depends primarily on the court’s conception of its relevancy.

Rule 1(2), U.R.E., provides:

“Relevant evidence” means evidence having any tendency in reason to prove or disprove the existence of any material fact.

In that case, defendant was convicted of forcible sexual abuse. Defendant claimed on appeal that he should have been permitted to elicit testimony from a character witness that defendant had never made any sexual advances toward her. The trial court ruled and we affirmed that such evidence had no probative value with respect to sexual advances made toward another person.

Likewise, in the instant case, testimony as to Yarrington’s impulsiveness has absolutely no bearing on defendant’s guilt or innocence. Yarrington had already pleaded guilty to the crime of burglary. Whether or not he acted impulsively in committing the burglary was not relevant to defendant’s participation in the crime. Certainly the probative value of such testimony was within the trial court’s discretion under Rule 45, U.R.E.

At trial the defense also sought to obtain the testimony of two of the arresting officers and the testimony of one Helen Baer, the defendant’s sister, all of whom would testify to the effect that Yarrington had told them that he committed the burglary and that the defendant had nothing to do with it. The defense sought admission of this testimony pursuant to U.R.E. 63(l)(c) or, alternatively, under U.R.E. 63(4) as exceptions to the hearsay, rule. The trial court, however, excluded the proffered testimony.

This Court need not determine whether the proffered testimony came within a recognized exception to the hearsay evidence rule, as the defendant claims, for the reason that the substance of such testimony was later received through another source, to wit, through the testimony of Yarrington himself. In direct examination of Yarring-ton, the following colloquy took place:

Q. Did you make any statements to the police at that point?

A. I just told them that the burglary was my idea.

Q. Did you tell them what part, if any, Chuck had in the burglary?

A. No, I didn’t.

Q. Did you explain what you meant by it being your idea?

A. That — no, I didn’t explain it at that time. I just said the burglary was my idea.

Q. Did Chuck have any part in this burglary?

A. No, he didn’t.

It is readily apparent that the essence of the proffered testimony is the same as that later elicited through Yarring-ton. Where evidence is excluded by the trial court, any error which may have resulted from such exclusion is cured where the substance of the evidence is later admitted through some other means. State v. Salmon, Utah, 612 P.2d 366 (1980); State v. Sorensen, Utah, 617 P.2d 333 (1980). Hence, any error in excluding the proffered testimony was harmless. See Rule 5, U.R.E., and State v. Pierre, Utah, 572 P.2d 1338 (1977).

The judgment of conviction is affirmed.

HALL, C.J., and OAKS, J., concur.