State v. Verde

2010 UT App 30, 227 P.3d 840, 649 Utah Adv. Rep. 47, 2010 Utah App. LEXIS 36

• Court: Court of Appeals of Utah
• Decided: February 11, 2010
• Docket: 20080842-CA
• Status: Published

Opinions

OPINION

BENCH, Senior Judge:

T1 Defendant James Eric Verde appeals from a jury conviction for sexual abuse of a child, a second degree felony, see Utah Code Ann. § 76-5-404.1(2)-(8) (2008), and challenges the trial court's decision to admit evidence of other crimes, wrongs, or bad acts² Defendant argues that this bad acts evidence was not admissible pursuant to rule 404(b) of the Utah Rules of Evidence because it was not presented for a proper noncharacter purpose, it was not relevant, and it was more prejudicial than probative. Because specific intent was an element of the crime at issue in this case, we conclude that the trial court properly admitted the bad acts evidence for the proper noncharacter purpose of showing intent and that the evidence was both relevant and probative. We therefore affirm.

BACKGROUND

T2 In 2005, Defendant was charged with sexually abusing NH., a thirteen-year-old boy. The charges steamed from an incident that occurred in the summer of 2008, when Defendant allegedly put his hand down N.H.'s pants and fondled N.H.'s genitalia. Defendant pleaded not guilty to the charge.

3 Prior to trial, the State filed a motion in limine, requesting that the trial court admit testimony from three other males-M.A., J.T.S., and B.P.-who claimed that Defendant had also sexually abused them. In its supporting memorandum, the State proffered the anticipated testimony of N.H. and the three other males. The State argued that the admission of this testimony was proper under rule 404(b) of the Utah Rules of Evidence for the noncharacter purpose of demonstrating Defendant's "knowledge, intent, plan, modus operandi, and/or absence of mistake or accident." At oral argument, the State emphasized the admissibility of the evidence for the noncharacter purpose of proving modus operandi or specific intent.

T4 After taking the State's motion under advisement, the trial court granted the motion with respect to the testimony of M.A. and J.T.S. but denied the motion as to the testimony of B.P. In a detailed memorandum decision, the trial court determined that the testimony was admissible for the proper non-character purpose of showing Defendant's intent "because specific intent is an element of the offense at issue." The trial court also briefly noted that the testimony would be admissible, in the alternative, for showing "a pattern of behavior ... [in which] Defendant prepared and planned to meet minor males with a motive of enticing them into sexual relationships." The trial court did not admit B.P.'s testimony, however, because of concerns regarding the prejudicial effect of cumulative evidence and because it found 'the six-year time period between B.P.'s alleged abuse and N.H.'s alleged abuse made B.P.'s testimony less probative.

T5 The trial court later denied the State's subsequent motion to admit testimony of an additional male, D.J.W., who claimed to have been sexually abused by Defendant in 2002. Although the trial court found the evidence to be relevant, it determined that the cumulative nature of the evidence would make it more prejudicial than probative.

T6 At trial, NH. testified that he met Defendant in the fall of 2001 after Defendant moved into a home across the street from N.H.'s home. On the same day they met, Defendant took NH. to a local carnival. N.H. testified that he went to Defendant's house a few times each month to play basketball or video games. On a few occasions, NH. was allowed to ride Defendant's 4-wheelers. Defendant would also pay N.H. to do occasional yard work. NH. stated that during one of his visits, Defendant tried to show him a pornographic magazine.

T7 In the summer of 2008, N.H. went to Defendant's home either to play video games or to watch a movie. N.H. sat on Defendant's couch, and Defendant sat next to him. N.H. testified that Defendant put his hand down N.H.'s pants and touched his penis and testicles. NH. told him not to do that. Defendant pulled his hand out of N.H.'s pants, said something to the effect of "don't be cool," and moved to a chair. NH. finished what he was doing and left Defendant's home. A year and a half later, N.H. told his mother what had happened.

18 J.T.S. next testified about his interactions with Defendant. He first met Defendant in approximately 2000 when he was fifteen years old. J.T.S. was working as a grocery store bagger, and Defendant was a customer at the store. J.T.S. testified that Defendant would initiate conversations with him when Defendant went through the check-out line. Defendant invited him to play basketball and on one occasion gave him a pair of sunglasses.

T9 J.T.S. quit work at the grocery store and did not see Defendant again until the spring of 2004 when J.T.S. was eighteen years old. Defendant saw J.T.S. at a store and noticed that his car was for sale. Defendant expressed interest in purchasing it and insisted that J.T.S. come to Defendant's house so Defendant could test drive the vehicle. When J.T.S. arrived at Defendant's home, Defendant invited him in, offered him a drink of soda, and showed him around the house. Defendant offered to let J.T.S. live there and briefly talked about the two of them pursuing some sort of out-of-state business opportunity together. J.T.S. testified that Defendant began talking about trust in friendship, specifically that guy friends could touch each other in sexual places and that it did not mean they were gay. As they sat on Defendant's couch, Defendant told J.T.S. that he wanted them to be that type of friends, and he began touching J.T.S.'s knee and thigh. Defendant touched J.T.S.'s penis over and then under J.T.S.'s clothing. J.T.S. attempted to stop Defendant, but Defendant used force and J.T.S. became scared.³ On returning to his own home, J.T.S. told his parents and reported the incident to the police.

{10 M.A. then presented his testimony. He met Defendant at a gym in 2002 when M.A. was eighteen years old. M.A. testified that Defendant approached him, invited him to hang out, and indicated that he had friends MA's age. Defendant obtained M.A.'s phone number and later called him. M.A. described Defendant's tone in the phone calls as aggressive. Defendant, M.A., and a couple other guys met onee for lunch and, on a separate occasion, cruised State Street.

T11 In approximately July 2002, Defendant invited M.A. to his house. Upon M.A.'s arrival, Defendant gave M.A. a tour of the house and offered to let M.A. stay there. Defendant told M.A. that he was looking for a little brother with whom he could have a business partnership, have fun, and enjoy life together. M.A. testified that Defendant spoke casually about sexual things, such as describing a penis as just "a piece of skin." Defendant told M.A. stories about Defendant and Defendant's friend "going out and ... exposing themselves in public places" and about an incident "in New York ... [in which] they were both receiving ... oral sexual pleasure and they were high fiving each other." Defendant commented that he and his friend were open with their penises and it was not a big deal. Defendant then asked M.A. if he trusted him and proceeded to grab M.A.'s leg, moving his hand close enough to M.A.'s groin to arouse M.A. M.A. testified that at that point, he knew Defendant's intentions and terminated their en-M.A. later made a report to the counter. police.⁴

[ 12 Defendant also testified at trial. He denied touching NH., M.A., or J.T.S. in a sexual manner. Although he did not deny being alone with N.H., M.A., or J.T.S. on the dates of the three alleged incidents, he gave a different version of the interactions. Defendant claimed M.A. and J.T.S. initiated the interactions with him, essentially seeking him out. Defendant also suggested that N.H. may have been upset with him for not paying him for catching a stray cat, that N.H. himself often talked about sexual things, and that N.H. exposed himself to Defendant on the day of the alleged incident.

113 The jury found Defendant guilty of sexually abusing N.H. After the trial court denied Defendant's motion for a new trial, Defendant filed this appeal.

ISSUE AND STANDARD OF REVIEW

[ 14 Defendant claims that the trial court erred by admitting the testimony of M.A. and J.T.S. and that the error affected the outcome of the proceedings against him. " '[Wle review a trial court's decision to admit evidence under rule 404(b) of the Utah Rules of Evidence under an abuse of discretion standard."" State v. Marchet, 2009 UT App 262, 119, 219 P.3d 75 (alteration in original) (quoting State v. Nelson-Waggoner, 2000 UT 59, 116, 6 P.3d 1120). "In doing so, '[Twle review the record to determine whether the admission of other bad acts evidence was scrupulously examined by the trial judge in the proper exercise of that discretion.'" Id. {alteration in original) (quoting Nelson-Wag-goner, 2000 UT 59, 1 16, 6 P.3d 1120).

ANALYSIS

{15 Defendant asserts that the bad acts evidence presented at trial should not have been admitted because it served no purpose other than to show a bad character and propensity to commit crime. Rule 404(b) of the Utah Rules of Evidence states, "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Utah R. Evid. 404(b). Bad acts evidence may be admitted, however, for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id.

116 "The Utah Supreme Court has established a three-part test for assessing whether evidence of other crimes, wrongs, or acts is admissible under rule 404(b)." State v. Balfour, 2008 UT App 410, ¶ 22, 198 P.3d 471. First, "the trial court must ... determine whether the bad acts evidence is being offered for a proper, noncharacter purpose, such as one of those specifically listed in rule 404(b)." Nelson-Waggoner, 2000 UT 59, ¶ 18, 6 P.3d 1120. "Second, the court must determine whether the bad acts evidence meets the requirements of rule 402 [of the Utah Rules of Evidence], which permits admission of only relevant evidence." Id. 119. "Finally, the trial court must determine whether the bad acts evidence meets the [probative value] requirements of rule 408 of the Utah Rules of Evidence." Id. ¶ 20.

1 17 Defendant claims that the trial court erred in determining that the bad acts evidence would be admissible for purpose of demonstrating intent. Specifically, Defendant asserts that his intent was never at issue because his defense was that he never touched N.H., not that he touched N.H. but the touching was an accident or that his intentions were noneriminal.

T 18 While Defendant may not have directly contested his mental state, intent was clearly at issue. Defendant pleaded not guilty to a specific intent erime, sexual abuse of a child, which required the State to prove beyond a reasonable doubt not only that he "touch{ed] the ... genitalia of a child" but also that he did so "with intent to cause substantial emotional or bodily pain to any person or with the intent to arouse or gratify the sexual desire of any person." Utah Code Ann. § 76-5-404.1(2) (2008). "While admissibility [of evidence under rule 404(b)] depends, in part, upon the defenses raised, the general assumption is that [bly pleading not guilty, defendant placed all elements of the crime at issue, including ... intent.'" Balfour, 2008 UT App 410, ¶ 23, 198 P.3d 471 (second alteration and omission in original) (quoting State v. Widdison, 2000 UT App 185, ¶ 33, 4 P.3d 100); see also State v. Bradley, 2002 UT App 348, ¶ 23, 57 P.3d 1139 (Davis, J., lead opinion) ("[Blecause specific intent is an element of the offense, [the defendant]'s intent was at issue during trial."); State v. Teuscher, 883 P.2d 922, 927 (Utah Ct.App.1994) ("In pleading not guilty, defendant put every element of the charge against her in issue.")⁵ Thus, "[where specific intent is an element of the crime, the prosecution may introduce evidence of other offenses to establish the element of intent even if the defendant has not" contested his or her mental state. Teuscher, 883 P.2d at 927. We therefore agree with the trial court that the bad acts evidence is admissible for the non-character purpose of showing Defendant's intent.

119 Defendant nonetheless argues that permitting bad acts evidence for the non-character purpose of proving specific intent may render such evidence admissible in more than the "rare" or "narrow circumstances" suggested by the Utah Supreme Court. See State v. Reed, 2000 UT 68, ¶ 28 n. 3, 8 P.3d 1025. At some point, the supreme court will undoubtedly weigh in on whether limiting the rule applied here to "specific intent crimes" is narrow enough. This court, however, is bound to follow our prior decisions. See State v. Menzies, 889 P.2d 393, 399 n. 3 (Utah 1994) ("Horizontal stare decisis ... requires that a court of appeals follow its own prior decisions. This doctrine applies with equal force to courts comprised of multiple panels, requiring each panel to observe the prior decisions of another.").⁶ Furthermore, the bad acts evidence must also pass the requirements of rules 402 and 408. The relevancy and probative value requirements of rules 402 and 408 operate to narrow the instances where bad acts evidence will be admissible even in cases involving specific intent crimes.

120 In this regard, Defendant contends that even if the bad acts evidence had a proper purpose, it was not relevant. " 'Relevant evidence' means 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." Utah R. Evid. 401. In other words, "[elvi-dence is relevant if it 'tends to prove some fact that is material to the crime charged[,] other than the defendant's propensity to commit crime."" State v. Balfour, 2008 UT App 410, ¶ 24, 198 P.3d 471 (second alteration in original) (quoting State v. Decorso, 1999 UT 57, ¶ 22, 993 P.2d 837). Because M.A.'s and J.T.S.'s testimony tended to make the existence of Defendant's intent to commit sexual abuse against N.H. "more probable or less probable than it would be without the evidence," Utah R. Evid. 401, the trial court did not abuse its discretion in finding it to be relevant to the issue of intent.

121 Finally, Defendant claims that the probative value of the bad acts evidence was minimal and substantially outweighed by its prejudicial effect. Rule 403 provides that "relevant[ ] evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Utah R. Evid. 408. When undertaking this balancing test, we are guided by the factors enumerated in State v. Shickles, 760 P.2d 291 (Utah 1988):

the strength of the evidence as to the commission of the other erime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.

Id. at 295-96 (internal quotation marks omitted).

22 Here, the evidence regarding Defendant's acts against M.A. and J.T.S. was relatively strong given that both M.A. and J.T.S. testified in person. See State v. Marchet, 2009 UT App 262, ¶ 45, 219 P.3d 75 (indicating that bad acts evidence was strong where other alleged victims of the defendant "testified in person at trial and were available for cross-examination"). The three incidents involved a similar pattern of befriending young males,⁷ inviting them to his home, engaging in recreational activities with them, making statements to invoke trust, suggesting that sexual touching is a normal part of male friendships, and actually touching their genitalia. The time period between the other

assaults and the abuse against NH. was approximately one year, thus making "the evidence ... sufficiently proximate to warrant its admission." See id. (noting that the other alleged sexual assaults occurred within one or two years of each other); see also Decorso, 1999 UT 57, ¶ 32, 998 P.2d 837 (indicating that a seven-month interval between alleged crimes was "relatively short"). There was a need for the evidence as it would assist the jury in deciding the issue of specific intent and in assessing the credibility of N.H. and Defendant. See State v. Nelson-Waggoner, 2000 UT 59, ¶ 30, 6 P.3d 1120 ("'The need for the bad acts evidence was great; without it, the trial resolved into a contest of credibility between [the] defendant and [the alleged victim]."). In light of the fact that there was no physical evidence of the offense against NH. or other eyewitnesses, there was limited alternative proof of Defendant's intent. See State v. Bradley, 2002 UT App 348, ¶ 35, 57 P.3d 1139 ("[There was no evidence in the record of any alternative proof showing that [the defendant] committed offenses against [the two children] and had the intent to do so. There was no physical evidence of the offenses and there were no eyewitnesses to the offenses besides the child victims themselves."). Furthermore, given that the acts against M.A. and J.T.S. were relatively similar to the acts against NH., it was unlikely that the evi-denee would rouse the jury to overmastering hostility against Defendant. See generally Reed, 2000 UT 68, ¶ 31, 8 P.3d 1025 ("Such evidence of multiple acts of similar or identical abuse is unlikely to prejudice a jury.").

123 Finally, we observe that the court conducted a serupulous examination of M.A.'s and J.T.S.'s testimony. The trial court carefully compared the testimony of each alleged victim, and it explicitly weighed the probative value of the evidence under the Shickles factors. The trial court did not adopt the State's position in its entirety. Instead, the trial court excluded the testimony of B.P. because the remoteness in time diminished its probative value. The trial court also excluded the testimony of D.J.W. due to concerns about the prejudicial effect of cumulative evidence. We conclude that the trial court did not exceed its discretion in admitting the testimony of M.A. and J.T.S. at trial.

CONCLUSION

[ 24 The trial court did not abuse its discretion in admitting testimony from M.A. and J.T.S. because the bad acts evidence satisfied the requirements of rule 404(b) and the ree-ord indicates that the trial court serupulously examined the evidence. Because Defendant pleaded not guilty to the specific intent crime of sexual abuse of a child, his intent was at issue and the bad acts evidence was admissible to establish that intent. The particular bad acts evidence introduced was relevant and its probative value outweighed its prejudicial effect.

( 25 Accordingly, we affirm.

26 I CONCUR: PAMELA T. GREENWOOD, Senior Judge.

2 . Due to the lengthy history of this case, several judges presided over the various proceedings. Judge Terry L. Christiansen presided over the pretrial hearings and made the rulings on both of the State's motions in limine. Judge Stephen L. Henriod presided over the trial, and Judge Mark * S. Kouris presided over the post-trial matters, including Defendant's motion for a new trial.

3 . On cross-examination, defense counsel elicited additional testimony from J.T.S., which included the fact that Defendant performed oral sex on J.T.S., penetrated J.T.S.'s anus with his fingers, and showed him a pornographic magazine.

4 . In his 2002 police report, M.A. stated that Defendant had actually touched his penis. At trial, however, M.A. stated he could not precisely recall that part of his encounter with Defendant because of his desire to forget the encounter as well as the passage of time.

5 . We recognize that individual members of this court have expressed the view that a not guilty plea, alone, should not place a defendant's intent at issue and that a defendant must explicitly challenge the specific intent element of the crime in order for bad acts evidence to be admissible for the purpose of proving the defendant's specific intent. See State v. Bradley, 2002 UT App 348, ¶ 70, 57 P.3d 1139 (Thorne, J., concurrmg) (stating that "intent was never really in issue ... [because the defendant] steadfastly denied that the abuse had ever occurred and claimed that the accusations were most likely fabricated by his ex-wife"); id. ¶ 80 (Orme, J., concurring specially) ("[MJore should be required [than having specific intent be an element of a crime] in order to view prior bad acts as bearing on intent."). But see State v. Rees, 2004 UT App 51, ¶ 12 & n. 3, 88 P.3d 359 (mem.) (Thorne, J., dissenting) ("Because intent is always at issue in a specific intent crime, the State's assertion [that its purpose for admitting the prior bad act evidence was to show intent] is sufficient to satisfy the first element [in the rule 404(b) admissibility test].... Because attempt is a crime of specific intent, the State may properly introduce relevant prior act evidence to demonstrate [the defendant]'s intent in the instant case." (citation omitted)).

6 . In the present case, there is at least one additional ground for admitting the prior bad acts evidence. At trial, Defendant claimed that NH. had made up the allegation after not being paid for catching a stray cat. The concurring opinions in State v. Bradley, 2002 UT App 348, 57 P.3d 1139, held that prior bad acts evidence is also admissible to rebut the defense of fabrication. See id. ¶¶ 70, 73 (Thorne, J., concurring); id. ¶¶ 80-81 (Orme, J., concurring).

7 . Although M.A. and J.T.S. were young adults and NH. was a minor child, M.A. and J.T.S. were barely past the age of majority at the time that Defendant made unwanted sexual advances toward them. A more significant age gap between the adult victims and the child victims of the same defendant may diminish the similarity between the crimes and thus diminish the probative value of the evidence. Cf. United States v. Long, 328 F.3d 655, 661 (D.C.Cir.2003) (concluding that defendant's prior uncharged sexual conduct with older boys was properly admitted as probative of his charged sexual conduct with the alleged minor victims because "bad acts evidence need not show incidents identical to the events charges, so long as they are closely related to the offense and are probative of intent rather than mere propensity").