State of Utah v. Steiger

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State of Utah,
Plaintiff and Appellee,

v.

Kenneth J. Steiger,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981746-CA

F I L E D
February 8, 2001 2001 UT App 39 -----

Fifth District, St. George Department
The Honorable James L. Shumate

Attorneys:
Odean Bowler, St. George, for Appellant
Mark L. Shurtleff and Scott Keith Wilson, Salt Lake City, for Appellee

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Before Judges Billings, Orme, and Thorne.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).

The trial court was well within its discretion to refuse to allow Steiger to play a videotape of a police interview of the victim. Steiger offered the videotape to refresh the officer's recollection as to whether he remembered the victim asking if she sounded like a lunatic during the officer's interview with her. This was a minor matter with little relevance to the issues at trial, and the trial court could readily find that playing the tape would have been a waste of time. Further, Steiger's claim that he offered the videotape for purposes other than to refresh the officer's memory was not preserved for appeal. See State v. Bryant, 965 P.2d 539, 546-47 (Utah Ct. App. 1998).

We affirm the trial court's ruling under Utah R. Evid. 609 that the victim could not be cross-examined regarding her misdemeanor shoplifting convictions. Such convictions are never relevant to credibility and cannot be admitted under Rule 609. See State v. Bruce, 779 P.2d 646, 655-56 (Utah 1989).

Steiger challenges the trial court's decision to allow the victim to testify about a threat he directed toward her. The State charged Steiger with aggravated kidnaping, which the jury instructions defined as including detention "to terrorize the victim." As the State correctly pointed out in its brief, had the trial court precluded the victim from telling the jury about the frightening threat, it would have created the ridiculous scenario of the State having to prove that Steiger terrorized the victim, while at the same time preventing the State from offering highly relevant evidence of this fact because the threat itself was so terrifying. Just because other evidence was available to prove that Steiger terrorized the victim does not mean that the State was precluded from offering direct testimony of the graphic threat that Steiger made. See State v. Decorso, 1999 UT 57,¶54, 993 P.2d 837, cert. denied, 120 S. Ct. 1181 (2000).

The trial court properly excluded the proffered testimony of witness Jim Thompson. The proffered testimony concerning an overheard conversation between Steiger and the victim on the topics of bondage and spanking was not admissible under Utah R. Evid. 412. We emphasize that, under Rule 412, evidence of prior "specific instances of sexual behavior" by a victim with a defendant is admissible only to prove consent. The proffered testimony did not describe any prior instances of sexual behavior between the victim and Steiger, but only a conversation where bondage and spanking were discussed.

We reject Steiger's contention that the trial court abused its discretion in sentencing him to consecutive prison terms. In making its determination, the trial court considered "the gravity and circumstances of the offenses(1) and the history, character, and rehabilitative needs of the defendant." Utah Code Ann. § 76-3-401(4) (1999). Prior to sentencing, the court reviewed Steiger's presentence report, which indicated he had eight prior convictions, including three felonies, and found him to be a continuing threat to the victim(2) and not a strong candidate for rehabilitation. The consecutive sentences imposed by the trial court were authorized by statute and were a product of the court's consideration of the factors listed in the statute.(3)

We have carefully considered the other arguments raised by Steiger, including the issue he himself raised and that was supplementally briefed by the State per our order of December 8, 2000, and conclude they are wholly without merit and do not require further discussion. See State v. Carter, 776 P.2d 886, 888 (Utah 1989) (holding that appellate court "need not analyze and address in writing each and every argument, issue, or claim raised and properly before us on appeal"). See also id. ("[I]t is a maxim of appellate review that the nature and extent of an opinion rendered by an appellate court is largely discretionary with that court."). Cf. Reese v. Reese, 1999 UT 75,¶8, 984 P.2d 987 (To facilitate Supreme Court certiorari review, the court of appeals must "at the very least identif[y] the basis for refusing to treat an issue.").

Accordingly, the judgment appealed from is affirmed; the court's order of June 28, 2000, insofar as entered in this case, is set aside as improvidently granted for the reasons set forth in this court's order of December 8, 2000, entered in Case No. 981805-CA; and counsel's motion for leave to withdraw is granted.
 
 
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 

______________________________
William A. Thorne, Jr., Judge

1. The court found that "under the definition of depravity, that the threats and the personal violent, evil statement made during the perpetration of this offense justifies, in fact it cries out for, a minimum mandatory term of 15 years to life, to be served consecutive with the other terms."

2. As to this matter, at least, Steiger seems to be in agreement with the trial court. At sentencing, when the court announced its finding that Steiger was a continuing danger to the victim, he candidly responded: "Very much so."

3. Of course, the trial court was not required to give each statutory factor equal weight. Cf. State v. Nuttall, 861 P.2d 454, 458 (Utah Ct. App. 1993) ("[T]he trial court did not abuse its discretion by placing more emphasis on punishing defendant rather than rehabilitating him.").