State v. Sharifpour

State v. Sharifpour

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Soroush Sharifpour,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030790-CA
 

F I L E D
(February 3, 2005)
 

2005 UT App 42

 

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Third District, Salt Lake Department

The Honorable Randall N. Skanchy

Attorneys: Edward K. Brass, Salt Lake City, for Appellant

Mark L. Shurtleff and Christine Soltis, Salt Lake City, for Appellee

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Before Judges Billings, Greenwood, and Jackson.

BILLINGS, Presiding Judge:

    Defendant Soroush Sharifpour appeals his conviction for aggravated sexual assault. See Utah Code Ann. § 76-5-405 (2003). He argues that the trial court erred by admitting into evidence (1) a witness's testimony and interpretation of a hearsay statement, and (2) photographs taken by Defendant of the alleged sexual assault in progress. Defendant further argues that during closing argument the prosecutor misstated evidence regarding the hearsay statement and that this constitutes plain error warranting reversal. We affirm.

    First, Defendant asserts that C.T.'s testimony regarding a statement made by the victim's boyfriend, Shahab Kazemzadeh, to Matt Shipp, C.T., and Defendant was hearsay or, in the alternative, that C.T. had no personal knowledge of what Kazemzadeh meant and, therefore, that C.T.'s interpretation was not relevant. The State argues that the trial court properly admitted Kazemzadeh's statement as an adoptive admission under rule 801(d)(2) of the Utah Rules of Evidence. The State further contends that C.T. had personal knowledge and his interpretation was relevant. We agree with the State.

    Rule 801(d)(2) of the Utah Rules of Evidence provides that a statement is not hearsay if it "is offered against a party and is . . . a statement of which the party has manifested an adoption or belief in its truth." Utah R. Evid. 801(d)(2)(B). At trial, C.T. testified that Kazemzadeh stated, "We should try to hit it," and that Defendant responded, "I'll try." Defendant's express adoption of Kazemzadeh's statement rendered it nonhearsay, and, accordingly, C.T., who personally heard the exchange, could testify to both the statement and Defendant's response. See State v. Carlsen, 638 P.2d 512, 514 (Utah 1981) (holding that a codefendant's threats to a victim, phrased in terms of "we" and "us," were admissible against the defendant as adoptive admissions because the defendant did not contradict the statements made in his presence).

    Furthermore, C.T. had "personal knowledge of the matter" as required by rule 602 of the Utah Rules of Evidence. Utah R. Evid. 602. This rule "merely requires that the witness have the opportunity and the capacity to perceive the events in question." State v. Eldredge, 773 P.2d 29, 33 (Utah 1989). C.T. heard Kazemzadeh make the statement and C.T. was one of the men at whom the statement was directed. Thus, C.T. could testify as to his understanding of what Kazemzadeh meant by the statement.

    Additionally, the testimony was relevant under rule 401 of the Utah Rules of Evidence. See Utah R. Evid. 401 ("'Relevant evidence' means 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."). C.T. testified that he believed Kazemzadeh was encouraging the men to have sex with the victim. Any encouragement by Kazemzadeh to have sex with his girlfriend and any agreement by the men to try to have sex with her was relevant in determining the disputed issue of whether Defendant aided and abetted the others in raping the victim.

    Second, Defendant asserts that the trial court abused its discretion in admitting photographs depicting his codefendants sexually assaulting the victim because the photographs were prejudicial. Under rule 403 of the Utah Rules of Evidence, a trial court may exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Utah R. Evid. 403. The Utah Supreme Court has ruled that even if evidence potentially prejudices a defendant, it may be admitted if it is unusually probative. See State v. Kell, 2002 UT 106,¶31, 61 P.3d 1019. Specifically, the court stated:

We can think of nothing more probative and relevant than an actual videotape of a crime in progress. . . . Because of their high probative value, we do not place videotapes of a crime in progress in the same category of evidence as gruesome photos taken after the commission of a crime.

Id. Here, the photographs in question depict the sexual assault in progress and demonstrate that over a period of time, despite changes in physical positions and locales, the victim showed no signs of consciousness. While the photographs are disturbing, Defendant has not demonstrated that the probative value of the photographs is substantially outweighed by their potentially prejudicial impact. See id. at ¶¶29-31. Accordingly, we hold that the trial court did not err in admitting the photographs.

    Third, Defendant argues that in closing arguments the prosecutor misstated evidence regarding C.T.'s testimony of Kazemzadeh's statement, "We should try to hit it." In particular, Defendant contends that the trial court committed plain error by not correcting the prosecutor's alleged misstatement.(1)

    To demonstrate plain error, Defendant "must show an error occurred that should have been obvious to the trial court and that prejudiced the outcome of his trial." State v. Litherland, 2000 UT 76,¶31, 12 P.3d 92. In addition, the general test for prosecutorial misconduct is whether the remarks made by the prosecutor "call to the attention of the jurors matters which they would not be justified in considering in determining their verdict, and were they, under the circumstances of the particular case, probably influenced by those remarks." State v. Troy, 688 P.2d 483, 486 (Utah 1984).

    During closing argument, the prosecutor reiterated C.T.'s testimony regarding Kazemzadeh's statement. The prosecutor told the jury that "Kazemzadeh [said] something to the effect, [']If you're going to hit it with [the victim], you better get after it,['] something to that effect." He then stated, "What do you mean, [']Hit it with [the victim?'] What do you mean, [']Hit it with [the victim?']." While the prosecutor did not precisely repeat C.T.'s testimony, the difference in language was slight, and more importantly, the misstatement did not alter the meaning of C.T.'s testimony. Thus, the error would not have been plain to the trial court. Accordingly, we affirm.

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Judith M. Billings,

Presiding Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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Norman H. Jackson, Judge

1. Defendant also argues that his trial counsel was ineffective because he did not object to the prosecutor's alleged misstatement. However, "ineffective assistance of counsel should be raised on appeal if [1] the trial record is adequate to permit decision of the issue and [2] defendant is represented by counsel other than trial counsel." State v. Litherland, 2000 UT 76,¶9, 12 P.3d 92 (emphasis added) (alterations in original) (quotations and citations omitted). Because trial counsel and appellate counsel are the same, Defendant cannot claim that his counsel was ineffective, and, accordingly, we refuse to address this claim.