State of Utah v. Shapiro

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State of Utah,
Plaintiff and Appellee,

v.

Michael Lee Shapiro,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000662-CA

F I L E D
February 7, 2002 2002 UT App 28 -----

Third District, Salt Lake Department
The Honorable Anne M. Stirba

Attorneys:
James C. Bradshaw and Ann Marie Girot, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeffrey T. Colemere, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Greenwood.
BILLINGS, Associate Presiding Judge:

Defendant Michael Lee Shapiro appeals from convictions of Rape, a first degree felony, in violation of Utah Code Ann. § 76-5-402 (1999), and Forcible Sexual Abuse, a second degree felony, in violation of Utah Code Ann. § 76-5-404 (1999).

Defendant first argues the trial court erred by admitting his daughter's (Daughter) testimony that he sexually abused and raped her on prior occasions. "[E]vidence of prior [bad acts] is admissible under rule 404(b) if the evidence is relevant to a proper, non-character purpose, unless its danger for unfair prejudice and the like substantially outweighs its probative value." State v. Widdison, 2001 UT 60,¶41, 28 P.3d 1278.

At trial, Defendant maintained that Daughter initiated intercourse with him while he was asleep. This defense placed his intent, lack of accident, and consent at issue. We conclude Daughter's testimony was clearly relevant to these non-character purposes. See id. at ¶43; cf. State v. Nelson-Waggoner, 2000 UT 59,¶27, 6 P.3d 1120.

Defendant further argues Daughter's testimony was substantially more prejudicial than probative under Rule 403 of the Utah Rules of Evidence. In determining whether the trial court exceeded its discretion in admitting bad acts evidence under Rule 403, we consider the following factors: "'the strength of the evidence as to the commission of the other [acts], the similarities between the [acts], the interval of time that has elapsed between the [acts], 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.'" Nelson-Waggoner, 2000 UT 59 at ¶20 (quoting State v. Decorso, 1999 UT 57,¶29, 993 P.2d 837 (quoting State v. Shickles, 760 P.2d 291, 295-96 (Utah 1988))).

Applying these factors, the sexual abuse and rapes that occurred within a year of the sexual abuse and rape underlying Defendant's convictions were of the "same nature and character" and "were essentially interchangeable." State v. Reed, 2000 UT 68,¶31, 8 P.3d 1025. Thus, they establish an "ongoing behavior pattern" and "allowed [Daughter] to describe the full . . . context in which [Defendant] abused [Daughter] over [a year]." Id. at ¶¶26,31. We accordingly conclude the trial court did not exceed its discretion in allowing Daughter's testimony as to the recent sexual abuse and rapes. Furthermore, if the court erred in allowing Daughter's testimony as to the sexual abuse that occurred when she was between eight and eleven, such error was harmless. See id. at ¶31 ("[E]vidence of multiple acts of similar or identical abuse 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 three times or six.").

Defendant next argues the trial court erred in prohibiting him from cross-examining Daughter about an alleged false rape accusation she made against another person in 1993. We agree with the trial court that under Rule 403 there was a danger of unfair prejudice because the accusation did not involve Defendant and was seven years ago. See Utah R. Evid. 403. Moreover, even if the trial court exceeded its discretion, we do not think the error was harmful. Ample evidence was presented as to Daughter's veracity. Therefore, we are not convinced that allowing one question in regard to an alleged false accusation of rape committed by another person presents a sufficient "'likelihood of a different outcome . . . [so as] to undermine [our] confidence in the verdict.'" State v. Martin, 1999 UT 72,¶13, 984 P.2d 975 (quoting State v. Knight, 734 P.2d 913, 920 (Utah 1987)) (first alteration in original).

Defendant asserts several additional evidentiary errors and maintains his counsel was ineffective. To prevail on appeal, Defendant must establish prejudicial error. See State v. Medina-Juarez, 2001 UT 79,¶14, 34 P.3d 187. Defendant conceded that he had sexual intercourse with Daughter. However, he claimed that he was a heavy sleeper, had been drinking, Daughter initiated the intercourse, and the intercourse was consummated while he was asleep.

Given Defendant's incredulous defense and the other evidence at trial, we are unconvinced that even if the trial court erred and defense counsel's performance was objectively unreasonable, that there is a sufficient "'likelihood of a different outcome,'" so as to undermine our confidence in the verdict. State v. Webster, 2000 UT App 238,¶38, 32 P.3d 976 (quoting Knight, 734 P.2d at 920). We are also unconvinced that "'the cumulative effect [of any] errors'" deprived Defendant of a fair trial. Medina-Juarez, 2001 UT 79 at ¶27 (citation omitted).

Finally, Defendant argues the imposition of consecutive sentences was "inherently unfair" because the acts underlying his convictions occurred almost simultaneously in a single criminal episode and deprived the Board of Pardons of its discretion to consider his future conduct. Utah Code Ann. § 76-3-401(5) (1999) provides, "A court may impose consecutive sentences for offenses arising out of a single criminal episode as defined in Section 76-1-401." Because Defendant concedes his acts were not the same for purposes of the single criminal episode statute, the trial court acted within its discretion in ordering him to serve consecutive sentences. See id. Furthermore, we disagree that the six year minimum mandatory sentence excessively "infringed upon the Board of Pardon's duties to monitor [Defendant's] progress." State v. Schweitzer, 943 P.2d 649, 652 (Utah Ct. App. 1997).

In sum, the trial court did not exceed its discretion in allowing Daughter's testimony alleging prior sexual abuse and rapes by Defendant and barring cross-examination of Daughter in regard to the alleged false rape accusation. Further, any other

trial court errors were harmless, Defendant was not prejudiced by any errors by counsel, and the imposed consecutive sentences were not inherently unfair or excessive. Therefore, we affirm.
 
 

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Judith M. Billings,
Associate Presiding Judge -----

WE CONCUR:
 
 

______________________________
Russell W. Bench, Judge
 
 

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Pamela T. Greenwood, Judge