State of Utah v. Sherratt

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State of Utah,
Plaintiff and Appellee,

v.

William Henry Sherratt,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000532-CA

F I L E D
June 28, 2001 2001 UT App 201 -----

Fifth District, Cedar City Department
The Honorable Robert T. Braithwaite

Attorneys:
Bradley P. Rich and Vanessa Ramos-Smith, Salt Lake City, for Appellant
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee

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Before Judges Greenwood, Bench, and Thorne.

BENCH, Judge:

Other bad act evidence is admissible only if it 1) is offered for a proper, noncharacter purpose under Rule 404(b) of the Utah Rules of Evidence, 2) is relevant under Rule 402, and 3) has probative value that is not substantially outweighed by the danger of unfair prejudice, as required by Rule 403. See State v. Decorso, 1999 UT 57,¶20, 993 P.2d 837.

In State v. Reed, 2000 UT 68,¶26, 8 P.3d 1025, the supreme court held that specific instances of uncharged child sex abuse may properly be admitted as non-character evidence under Rule 404(b) when offered "to establish a specific pattern of behavior by the defendant toward one particular child, the victim." Id. (citation and internal quotation omitted). Like the evidence admitted in Reed, evidence of Appellant's prior conduct toward the victim demonstrated Appellant's "ongoing behavior pattern, which included [Appellant's] abuse of the victim." Id. "Specifically, the evidence demonstrated the manner in which [Appellant] intensely pursued the victim over [the course of several years] in order to gain opportunity to commit the unlawful sexual acts." Id. In order to assess the credibility of the victim, the jury needed to see the allegations in context. Thus, the admitted evidence in this case satisfies the requirement of Rule 404(b) that the evidence be offered for a non-character purpose.

Furthermore, like the evidence admitted in Reed, Appellant's bad acts all concern one victim and were "specifically relevant to [Appellant's] persistent stalking and sexual abuse of this particular victim. Additionally, all of these acts were essentially interchangeable, occurred over a defined period of time and in the same uninterrupted course of conduct." Id. at ¶28. Therefore, we conclude that the admitted evidence was relevant, as required by Rule 402.

Finally, the evidence here concerns interchangeable acts against one victim. See id. at ¶31. Therefore, admitting such evidence is "unlikely to prejudice a jury; jurors will either believe or disbelieve the testimony based on the witness's credibility, not whether the witness asserts an act occurred [two] times or [ten]." Id. Thus, we conclude that the probative value of the evidence substantially outweighed any prejudicial effect. Having determined that all three requirements for admissibility are satisfied, we conclude that the trial court properly admitted evidence of Appellant's prior bad acts against the victim.

As to Appellant's second argument, the trial court sustained Appellant's Rule 402(b) objection to the victim's vague reference to other possible victims, struck the testimony, and gave a curative instruction to the jury. The only question is whether, despite the curative instruction, "the incident so likely influenced the jury that the defendant cannot be said to have had a fair trial." Decorso, 1999 UT 57 at ¶38 (internal quotations and citation omitted); see also State v. Harmon, 956 P.2d 262, 273 (Utah 1998) ("Some errors may be too prejudicial for curative instructions to mitigate their effect, and a new trial may be the only proper remedy.").

Even if we assume that the improper statement contained in the stricken testimony was unambiguous, other factors significantly lessened its prejudicial effect. Most importantly, the improper statement was insignificant when compared to the victim's testimony regarding Appellant's continuous abuse of her. In addition, no further mention was made of the improper statement, and the trial court's curative instruction diverted the jury's attention by focusing on other portions of the stricken testimony. Given the totality of the circumstances, we cannot say that this one short, nonspecific statement so influenced the jury as to prevent Appellant from receiving a fair trial. Therefore, the curative instruction was an adequate  remedy, and the trial court did not abuse its discretion in denying Appellant's motion for a mistrial.

Accordingly, we affirm.
 
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 

______________________________
William A. Thorne, Jr., Judge