State v. Jacob

State v. Jacob

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Russell Glenn Jacob,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040496-CA
 

F I L E D
(March 10, 2005)
 

2005 UT App 112

 

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Third District, Salt Lake Department

The Honorable J. Dennis Frederick

Attorneys: Lori J. Seppi and John O'Connell Jr., Salt Lake City, for Appellant

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

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Before Judges Bench, Davis, and Orme.

PER CURIAM:

    Russell Glenn Jacob appeals his conviction of rape. The sole issue on appeal is whether the trial court erred in excluding evidence of the victim's pregnancy by another man.

    In May 2003, a coworker of Jacob reported that he had raped her in her apartment. Jacob denied ever having sexual contact with her. In the course of the investigation, a detective discovered in December 2003 that the victim was pregnant. Although she thought Jacob could be the father, paternity tests established that Jacob was not the father of the child.

    At trial, Jacob tried to introduce evidence of the victim's pregnancy by another man as proof that Jacob did not have sex with the victim. The trial court excluded the evidence as irrelevant and as improper under Utah Rule of Evidence 412, restricting the admissibility of evidence regarding a rape victim's other sexual conduct. See Utah R. Evid. 412. On appeal, Jacob asserts the evidence should have been admitted as evidence of the victim's bias and motive to misrepresent. The State argues this issue was not preserved below.

    Generally, an appellate court "will not consider an issue, including constitutional arguments, raised for the first time on appeal unless the trial court committed plain error." State v. Dean, 2004 UT 63,¶13, 95 P.3d 276. To preserve an issue, it "must be sufficiently raised to a level of consciousness before the trial court and must be supported by evidence or relevant legal authority." Id. (quotations and citation omitted). The trial court must be afforded the opportunity to rule on the issue. See id.

    In the trial court, Jacob argued for admissibility of the pregnancy by another man only because "that is proof that they didn't have sex because it was a negative test." This is insufficient to raise an issue before the court that the pregnancy evidence may show bias or motive to misrepresent. Jacob's stated grounds for admissibility failed to mention bias, a retaliatory motive for misrepresentation, or the rules of evidence under which Jacob now argues the evidence was admissible. The issue was not raised to a level of consciousness before the trial court, nor was it supported by relevant legal authority. Thus, the issue of admissibility based on the victim's bias or motive to misrepresent was not preserved. See id. at ¶14 (holding issue not preserved where not specifically brought to trial court's attention or supported by legal authority).

    Because the issue was not preserved, we may consider Jacob's arguments only under plain error. To show plain error, a defendant must establish that an error exists, that the error "should have been obvious to the trial court," and that the error was harmful. Id. at ¶15. Jacob has not made the required showings to establish plain error.

    Jacob argues the error in excluding the pregnancy evidence should have been obvious because a defendant is entitled to attack a victim's credibility. Even if a defendant may challenge a victim's credibility, however, the evidence was not offered as evidence of bias. It was offered as proof that there was no sexual contact. Thus, Jacob argues, in essence, that the trial court should have on its own determined that this evidence would show the victim's bias or motive to misrepresent without any further context or information.

    This argument fails for two key reasons. First, the evidence was offered early in the trial, before Jacob testified. At that time, there was no indication that the evidence might become relevant to an alleged retaliatory motive to be presented later on defense. There was no testimony before the court at that time that would have put the court on notice that there was any issue of "bias, prejudice or any motive to misrepresent" on the victim's part. Utah R. Evid. 608(c). Thus, any error in excluding the evidence because it was relevant to bias or a retaliatory motive could not have been obvious to the trial court at the time of the ruling.

    Second, there was no trial defense strategy of retaliation apparent at any time during trial. The testimony that Jacob now asserts demonstrates that the victim was biased against him or had motive to retaliate because he spurned her was not presented as a defense, but rather was elicited during cross-examination to demonstrate inconsistencies in Jacob's own story. Furthermore, Jacob did not argue retaliation as a possible reason for the charges in closing argument. He presented some possibilities to explain why the victim would falsely accuse, but did not include any argument that she was retaliating because Jacob spurned her. Although Jacob argues that without the pregnancy evidence he could not explain the retaliation, some form of argument raising the issue could have been presented if indeed it was a cornerstone of the defense.

    Given the time frame of the evidentiary ruling and the lack of a defense strategy based on retaliation, any alleged error in excluding the evidence could not have been obvious to the trial court. Thus, Jacob has not established plain error.

    Accordingly, Jacob's conviction is affirmed.

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge

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Gregory K. Orme, Judge