State v. Kazemzadeh

State v. Kazemzadeh

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Shahab Kazemzadeh,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020996-CA
 

F I L E D
(February 12, 2004)
 

2004 UT App 23

 

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Third District, Salt Lake Department

The Honorable Randall N. Skanchy

Attorneys: Clayton A. Simms and Darwin Overson, Salt Lake City, for Appellant

Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee

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Before Judges Greenwood, Jackson, and Orme.

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). Moreover, the issues presented are readily resolved under applicable law.

Rule 412 of the Utah Rules of Evidence provides that "evidence offered to prove that any alleged victim [of sexual misconduct] engaged in other sexual behavior" is generally not admissible.(1) Utah R. Evid. 412(a)(1). Our Supreme Court has held that "evidence of an alleged rape victim's past sexual activities with someone other than the accused 'carr[ies] a presumption of unfair[ness]' due to its 'unusual propensity to unfairly prejudice, inflame, or mislead the jury,' and thus, 'distort the deliberative process and skew a trial's outcome.'" State v. Martin, 2002 UT 34,¶40, 44 P.3d 805 (alterations in original) (quoting State v. Dibello, 780 P.2d 1221, 1229 (Utah 1989)). "[A]bsent circumstances which enhance its probative value, evidence of a rape victim's sexual promiscuity, whether in the form of testimony concerning her general reputation or testimony concerning specific acts with persons other than defendant is ordinarily insufficiently probative to outweigh the highly prejudicial effect of its introduction at trial." State v. Johns, 615 P.2d 1260, 1264 (Utah 1980). Evidence of other sexual behavior or predisposition is admissible, however, if the exclusion of such evidence "would violate the constitutional rights of the defendant." Utah R. Evid. 412(b)(3). We review the trial court's evidentiary analysis under rule 412 for correctness and give no particular deference to its decision. See State v. Quinonez-Gaiton, 2002 UT App 273,¶10, 54 P.3d 139, cert. denied, 64 P.3d 586 (Utah 2003).

Defendant argues that K.L.'s response to a question posed by the prosecution was inconsistent with a prior statement she made to law enforcement officers regarding her sexual activity with her husband, and that the trial court violated Defendant's Sixth Amendment Confrontation Clause rights(2) when it excluded evidence regarding that prior statement. "[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness[.]" Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 1436 (1986). However, "the Sixth Amendment right to confrontation requires only that the accused be permitted to introduce all relevant and admissible evidence." Johns, 615 P.2d at 1264.

K.L. testified that when Defendant asked her what she thought about a particular sexual act, she "told him no" and stated, "I don't--I wouldn't do it." "[T]he fact [that] a woman has consented to sexual activity in the past under different circumstances, and with individuals other than the defendant, has little if any relevancy to the question of her consent" to sexual activity with Defendant. Johns, 615 P.2d at 1263. In this instance, K.L.'s negative response to Defendant's inquiry does not make her previous sexual activity any more relevant.

Defendant mischaracterizes K.L.'s statement as inconsistent with a prior statement she had made to the police. However, it is dispositively significant that K.L. adjusted her response, midstream, from "I don't" to "I wouldn't." In other words, she told Defendant that she would not consent to his request, and it is of no relevance whether she consented to such a request from another individual, particularly where that individual was her spouse.

Where the exclusion of evidence of a victim's sexual history does not preclude the defendant from effectively challenging the credibility of the victim, and where the defendant is provided a reasonable opportunity to adequately explore, by alternative methods, the substance of his complaints regarding the veracity of the victim's allegations, any need to disclose the victim's prior sexual conduct is substantially diminished and a trial court should ordinarily exclude it.

Quinonez-Gaiton, 2002 UT App 273 at ¶17. Given that Defendant had ample opportunity to cross-examine K.L. about relevant and admissible evidence, such as her previous consensual sex with Defendant, and her intention to engage in other forms of sex with Defendant, his Confrontation Clause rights were not violated.

Defendant also claims that the trial court erred in denying his motion for mistrial, which was made because of alleged prosecutorial misconduct. The prosecutor's characterization of Defendant's argument was merely a "reply to the theory advanced by defense counsel." State v. Tillman, 750 P.2d 546, 561 (Utah 1987). Because "[c]ounsel for both sides have 'considerably more freedom in closing argument' and 'a right to discuss fully from their standpoints the evidence and the inferences and deductions arising therefrom,'" the trial court was within the range of its broad discretion in denying the motion for mistrial. State v. Bryant, 965 P.2d 539, 550 (Utah Ct. App. 1998) (quoting State v.
Parsons, 781 P.2d 1275, 1284 (Utah 1989)). See State v. Pritchett, 2003 UT 24,¶10, 69 P.3d 1278.

Affirmed.

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Gregory K. Orme, Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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Norman H. Jackson, Judge

1. Rule 412 was adopted to counteract the danger of unfair prejudice and the possibility that "the fear of unwarranted inquiries into the victims' sexual behavior" could "deter[] victims from participating in prosecutions." Utah R. Evid. 412 & advisory committee note.

2. We decline to address Defendant's claim under the Utah Constitution because he has failed to brief his state claims separately. See State v. Ellis, 748 P.2d 188, 190 (Utah 1987).