State v. Sickler

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

State of Utah,

Plaintiff and Appellee,

v.

Javier Wilford Sickler,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040571-CA
 

F I L E D
(June 23, 2005)
 

2005 UT App 288

-----

Third District, Salt Lake Department, 021910449

The Honorable Robin W. Reese

Attorneys: Lori J. Seppi, David P.S. Mack, and Brennon L. Fuelling, Salt Lake City, for Appellant

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

-----

Before Judges Jackson, Orme, and Thorne.

THORNE, Judge:

    Javier Sickler appeals his two convictions for first degree felony rape. See Utah Code Ann. § 76-5-402 (2003). We affirm.

    Sickler argues that the trial court erred in its in limine ruling, pursuant to rule 404(b) of the Utah Rules of Evidence, permitting the State to introduce into evidence the circumstances of another rape for which Sickler had been convicted. "[A] defendant must testify to preserve his objection to a conditional in limine ruling under rule 404(b)." State v. Kirkwood, 2002 UT App 128,¶13, 47 P.3d 111. "If the defendant testifies [the State] must choose whether or not to impeach [him] by use of [his] prior conviction. Here, the trial judge had indicated he would allow its use, but the Government still had to consider whether its use might be deemed reversible error on appeal." Ohler v. United States, 529 U.S. 753, 758 (2000) (footnote omitted). "Only when the government exercises its option to elicit the testimony is an appellate court confronted with a case where, under the normal rules of trial, the defendant can claim the denial of a substantial right if in fact the district court's in limine ruling proved to be erroneous." Id. at 759.

    Here, the trial court ruled in limine that the State could use the circumstances of Sickler's previous rape conviction in its case-in-chief. The State, however, opted not to do so, instead reserving the evidence for possible rebuttal. After the defense rested, the State opted to present no rebuttal evidence. Thus, the prior bad act evidence at issue in this case never reached the jury. "[B]ecause the jury never heard the past crimes evidence to which Defendant objects, this court is left to speculate about the harm Defendant may have suffered, if any, . . . had the State introduced the [prior bad act] evidence unmodified by any limiting instruction." Kirkwood, 2002 UT App 128 at ¶14.(1)

    Consequently, we affirm.

______________________________

William A. Thorne Jr., Judge

-----

WE CONCUR:

______________________________

Norman H. Jackson, Judge

______________________________

Gregory K. Orme, Judge

1. Sickler invites us to analyze this case in a different light than that used in State v. Kirkwood, 2002 UT App 128, 47 P.3d 111, because he asked the trial court to admit a copy of the investigating officer's report that contained exculpatory statements Sickler made during his interview, but withdrew the request when the State threatened to rebut the report with the prior bad act evidence. However, we see no material difference between the Kirkwood defendant's refusal to testify in the face of the threat of prior bad act evidence and Sickler's decision to rescind his request to put the report into evidence for the same reason. The Kirkwood analysis is equally applicable in both cases, because in neither case was the jury presented with the bad act evidence, and in both cases the defendant made an affirmative decision to avoid the possible impact of prior bad evidence, eliminating any opportunity that the trial court may have had to amend its decision, or to mitigate the bad act evidence through instructions to the jury. See id. at ¶14 (The defendant's "refusal to testify deprived the trial court of the opportunity to alter its ruling or issue a limiting instruction that would minimize any unfair prejudice that may have resulted from the admission of the evidence."); see also Ohler v. United States, 529 U.S. 753, 758 n.3 (2000) ("However, in limine rulings are not binding on the trial judge, and the judge may always change his mind during the course of a trial. [The defendant's] position, therefore, would deprive the trial court of the opportunity to change its mind after hearing all of the defendant's testimony." (citing Luce v. United States, 469 U.S. 38, 41-42 (1984))).