State of Utah v. Rees

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Colby Rees,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010518-CA

F I L E D
October 18, 2002 2002 UT App 347 -----

Third District, Salt Lake Department
The Honorable Stephen L. Henriod

Attorneys:
Franklin Richard Brussow, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeffrey T. Colemere, Salt Lake City, for Appellee -----

Before Judges Jackson, Billings, and Thorne.
JACKSON, Presiding Judge:

Rees appeals his conviction for sexual battery, a class A misdemeanor, in violation of Utah Code Ann. § 76-9-702 (Supp. 2001). We affirm.

Rees first challenges the trial court's ruling regarding the State's cross-examination question to him about a subsequent and separate criminal charge. He argues the other crimes evidence amounts to improper character evidence under Utah Rule of Evidence 404(b).(1) When analyzing the admissibility of other crimes evidence, the trial court must determine "(1) whether the evidence is being offered for a proper, non-character purpose under [Utah Rule of Evidence 404(b)(2)], (2) whether such evidence meets the requirements of [Utah Rule of Evidence] 402 [(relevance)], and (3) whether this evidence meets the requirements of [Utah Rule of Evidence] 403 [(probativeness)]." State v. Decorso, 1999 UT 57,¶20, 993 P.2d 837, cert. denied, 528 U.S. 1164 (2000).

The trial court did not abuse its discretion in admitting the evidence because Rees had already put his intent and his alleged mistake regarding the victim's consent squarely at issue. See Utah R. Evid. 404(b); see also State v. Ramos, 882 P.2d 149, 154 (Utah Ct. App. 1994) (acknowledging that defendants may open door to otherwise inadmissible other crimes evidence when they put at issue subject for which other crimes evidence is admissible). Initially, the trial court excluded the evidence, but ruled that it would allow the evidence if Rees testified about his understanding of consent.

Rees testified on direct examination that he touched the victim, that she looked attractive, and that she did not object to him touching her. When the prosecutor asked Rees on cross-examination why he placed his hands on the victim's buttocks, he said that the victim "looked kind of easy."(3) We conclude that Rees's testimony placed his intent to satisfy his sexual impulses and his perceptions regarding the victim's consent at issue. Thus, Rees opened the door for the prosecutor to question him regarding a subsequent incident. There, without invitation, he haled an unknown woman to his car to view or touch his exposed genitalia. That incident bears on Rees's intent to gratify his sexual desires and his absence of mistake regarding unknown women's consent to similar behavior. Accordingly, the evidence was introduced for a proper non-character purpose under the first part of the Decorso test. See Decorso, 1999 UT 57 at ¶20.

The second prong of the Decorso test, relevance under rule 402, was also satisfied here. See Decorso, 1999 UT 57 at ¶20. Relevant evidence is "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. However, "unless the other crimes evidence tends to prove some fact that is material to the crime charged--other than the defendant's propensity to commit crime--it is irrelevant and should be excluded by the court pursuant to rule 402." Decorso, 1999 UT 57 at ¶22. Here, evidence of Rees's later behavior was relevant to the behavior at issue because Rees testified regarding his perception of the victim's alleged consent and the claim that such behavior had nothing to do with sexual gratification in the present case. The later incident resembles the instant behavior, but it more clearly shows intent to gratify sexual urges, making the proposition that Rees had such intent the first time more probable than it would be without the evidence of the later incident. Furthermore, the later incident, while resembling the instant behavior, also more clearly shows Rees's knowledge of the victim's lack of consent. Both intent and lack of consent are essential elements of the charges against Rees, see Utah Code Ann. § 76-5-404 (Supp. 2001) (forcible sexual abuse), and thus "'material to the crime charged.'" Decorso, 1999 UT 57 at ¶22 (quoting State v. Featherson, 781 P.2d 424, 426 (Utah 1989)). Accordingly, we conclude that the evidence was relevant pursuant to rule 402.

We finally conclude that the evidence's probative value outweighs the potential for unfair prejudice, meeting the third prong of the Decorso test and rule 403. See id. at ¶20. In determining whether the bad acts or other crimes evidence meets rule 403's requirements, "a variety of matters must be considered, including the strength of the evidence as to the commission of the other crime, 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." State v. Nelson-Waggoner, 2000 UT 59,¶20, 6 P.3d 1120 (quoting Decorso, 1999 UT 57 at ¶29). This balancing test weighs in favor of admitting the other crimes evidence as posing no unfair prejudice when compared with its probative value. The other crimes evidence was very strong, as shown by Rees's conviction for the separate charge. The crimes are very similar in nature because they both involved the uninvited obscene touching of completely unknown women for the purpose of sexual gratification. Rees perpetrated both crimes in close time proximity--a period of about four months. See Decorso, 1999 UT 57 at ¶32 (calling seven month interval "relatively short"). "The combination of these two factors makes the bad acts evidence in this case highly probative. . . . 'Proximity in time combined with similarity in type of crime virtually guarantees admittance of [other crimes] evidence.'" Nelson-Waggoner, 2000 UT 59 at ¶29 (citation omitted). Accordingly, we affirm the trial court's decision allowing the State to present evidence of Rees's later criminal act.(4)

Additionally, Rees claims the Utah sexual battery statute, Utah Code Ann. § 76-9-702(3), is unconstitutionally vague. However, Rees did not make this argument below, and the trial court did not rule on it. We have searched the record and can find no preservation of this issue. Moreover, Rees failed to provide in his brief a cite indicating where in the record the issue was preserved, as required by Utah Rule of Appellate Procedure 24(a)(5)(A). Thus, Rees "does not identify any error by the trial court," State v. Price, 827 P.2d 247, 250 (Utah Ct. App. 1992), and there is nothing for us to review. Rees's constitutional "argument was not preserved for appeal, and we

therefore decline to address it."(5)State v. Davis, 965 P.2d 525, 537 (Utah Ct. App. 1998).

Accordingly, we affirm Rees's conviction.
 
 

______________________________
Norman H. Jackson,
Presiding Judge -----

WE CONCUR:
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
William A. Thorne Jr., Judge

1. We review trial court determinations regarding the admissibility of other crimes evidence for abuse of discretion. See State v. Decorso, 1999 UT 57,¶18, 993 P.2d 837, cert. denied, 528 U.S. 1164 (2000).

2. Utah Rule of Evidence 404(b) provides that evidence of other crimes may "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Utah R. Evid. 404(b).

3. In common usage, the term "easy" clearly refers to a person's sexual promiscuity. See Roget's II, The New Thesaurus 306 (1980). Thus, by implication Rees testified that his intent in touching the victim had something to do with sexual gratification.

4. Rees also argues that the State committed prosecutorial misconduct in presenting the other crimes evidence. "A prosecutor's comments constitute misconduct when they [inter alia] call the jurors' attention to matters not proper for their consideration . . . ." State v. Pearson, 943 P.2d 1347, 1352 (Utah 1997). Rees's claim of prosecutorial misconduct fails because we have already determined that the evidence of Rees's subsequent crime was admissible and thus "proper for [the jury's consideration]." Id.

5. We also decline to address Rees's sufficiency of the evidence argument because he failed to marshal the evidence supporting his conviction. See West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991) (requiring appellant challenging findings of fact to marshal all evidence in support of conviction, showing its "fatal flaw"). Because Rees has not marshaled the evidence to show clear error in the finding of guilt, we "'assume[] that the record supports the findings of the trial court.'" State v. Larsen, 828 P.2d 487, 490 (Utah Ct. App. 1992) (quoting Saunders v. Sharp, 806 P.2d 198, 199-200 (Utah 1990).