STATE of Utah, Plaintiff and Appellee, v. Peter Luna BRAVO III, Defendant and Appellant.
No. 20120305-CA
Court of Appeals of Utah.
Jan. 23, 2015.
2015 UT App 17
Sean D. Reyes, Deborah L. Bulkeley, and Ryan D. Tenney, Salt Lake City, Attorneys for Appellee.
Judge JOHN A. PEARCE authored this Opinion, in which Judges J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.
Opinion
PEARCE, Judge:
¶1 Peter Luna Bravo III appeals from his conviction of aggravated burglary, rape, and forcible sodomy. Bravo argues that the district court erred when it excluded evidence of his sexual history with the victim (Victim) under rule 412 of the
BACKGROUND1
¶2 Bravo met Victim in 2001. The two became romantically involved and eventually married. They divorced in 2008 but continued their sexual relationship. In August 2010, the couple fought, the police were called, and Victim told Bravo to leave and never return.
¶3 Despite Victim‘s command to stay away, a few weeks later Bravo visited her apartment and knocked on the door. Believing he was a neighbor looking to borrow a cigarette, Victim cracked the door open. Bravo pushed his way in and pinned her to the ground. He grabbed a dog leash and held her down by pressing the leash across her neck. He forcibly penetrated her vaginally. He then slung her over his shoulder, carried her to her bedroom, and threw her on the bed. Victim struggled to escape, but Bravo restrained her, flipped her onto her stomach, and penetrated her anally. He became frustrated when he was unable to ejaculate and left, punching and breaking a window on the way out.
¶4 The State charged Bravo with aggravated burglary, rape, and forcible sodomy. Before trial, Bravo moved to admit evidence of Victim‘s prior sexual activity pursuant to
ued to get together for sexual escapades ... consistent with their sexual activities during their marriage.” Bravo‘s motion asserted that this evidence should be admitted because it “supports the defense of consent” and because its exclusion would “violate [his] fundamental due process rights under the Utah and U.S. Constitutions.” The district court scheduled an in camera hearing to address the rule 412 motion.
¶5 Bravo was unable to attend the scheduled hearing, which proceeded in his absence. The State argued that Bravo‘s proposed testimony was too general to meet rule 412‘s requirements or to allow the State to prepare properly for trial. Bravo‘s counsel argued that no decision on the matter should be reached until Bravo was present. The district court agreed to delay ruling until Bravo could attend but indicated that it was inclined to allow testimony that Bravo and Victim‘s sexual activity continued after their marriage ended. The district court expressed skepticism that Bravo‘s proposed “rough sex” testimony would be admissible, explaining,
[I]f it‘s just the before and after marriage we did certain “rough” things including asphyxiation and, and sodomy it just doesn‘t seem relevant when the charge is that Mr. Bravo on this particular occasion forced his way into the complaining witness‘s home, grabbed her by the neck and forced her to the floor, disrobed her against her will, forced himself upon her, put a dog leash around her neck, drug her into the bedroom and then, and then penetrated [her] anally. I just don‘t see how, how the fact that they may have [had] some form of unconventional sex before reflects that the victim consented to this behavior on this occasion.
The district court reserved the question until trial so that Bravo could be present.
¶6 On the first day of trial, the district court revisited the rule 412 motion. The district court again stated its belief that testimony about prior rough sex would not be relevant to show consent, but the court invited Bravo‘s counsel to proffer specific prior acts and explain why those acts would be relevant to demonstrate consent. Bravo‘s counsel responded that Bravo and Victim‘s “typical day-in-day-out sexual routines included bondage, masochism, anal sex and pretty much everything else one could think of without going into more detail on the record.” Counsel argued that Victim‘s allegation of anal sex was consistent with the couple‘s long-term sexual history and that her testimony about the dog leash “would go to the autoerotic asphyxiation as well [as] possible bondage incidents.” Counsel concluded, “[I]n a nutshell Mr. Bravo would testify that the events that happened on the night in question in this case were, if anything, tame for what had been the norm for their relationship....”
¶7 The district court ruled that Bravo could testify that he and Victim continued to have sex after their divorce. However, the district court excluded Bravo‘s proffered testimony about the couple‘s prior sex practices, ruling, “I just don‘t see the relevance and even if there is a sliver of relevance in there ... the relevance would be outweighed by the danger of unfair prejudice.”
¶8 At trial, Bravo testified that the events Victim described had not occurred in the place or manner Victim portrayed. Bravo testified that he had not gone to Victim‘s home, but that Victim had come to his hotel room where they engaged in consensual and “strictly vaginal” sex. He also testified that he had not broken the window at Victim‘s apartment and that he had witnessed one of Victim‘s friends break it on a separate occasion.
¶9 The jury convicted Bravo of aggravated burglary, rape, and forcible sodomy. The district court sentenced him to three concurrent five-years-to-life prison terms. Bravo appeals.
ISSUE AND STANDARD OF REVIEW
¶10 Bravo argues that the district court committed reversible error when it excluded evidence of the sexual history he shared with Victim. We review the district court‘s evidentiary rulings for an abuse of discretion. See State v. Clark, 2009 UT App 252, ¶ 10, 219 P.3d 631. We review the district court‘s interpretation of evidentiary rules for correctness, giving no deference to the district
ANALYSIS
¶11
I. State v. Richardson and Legal Standards for Admission of Rule 412 Evidence
¶12 After Bravo filed his initial appellate brief, but before the State responded, the Utah Supreme Court decided State v. Richardson, 2013 UT 50, 308 P.3d 526.3 In Richardson, the defendant was convicted on rape and sodomy charges arising in part from the allegation that he had forced a woman to have anal sex with him while she was menstruating. See id. ¶ 21. The supreme court reversed the convictions because the district court had excluded evidence that the defendant and the alleged victim routinely engaged in consensual anal sex while the victim was menstruating. See id. Richardson applied
¶13 In Richardson, the defendant sought to admit the sexual history evidence to “‘prove consent‘” pursuant to
¶14 The district court in Richardson had excluded the evidence because it was “not sufficiently relevant to be admissible.” Id. ¶ 22. However, the supreme court agreed with the defendant that “there is no ‘heightened relevancy test for evidence of specific instances of sexual activity between an alleged victim and the accused‘” and that the evidence “was relevant under the lenient standards of
¶15 The supreme court stated that, together,
¶16 Examining the sexual history evidence at issue in that case, the Richardson court concluded that the evidence was relevant to the issue of the victim‘s consent because it made consent “more probable” by “contextu-
¶17 Because the district court had excluded the sexual history evidence solely on relevance, State v. Richardson did not directly address the application of rule 403 to evidence of a victim‘s other sexual activity.4 See 2013 UT 50, ¶¶ 30-32, 308 P.3d 526; see also
¶18 Quoting State v. Dibello, 780 P.2d 1221, 1229 (Utah 1989), Bravo argues that the presumption of inadmissibility applies only to “‘certain categories’ of evidence specifically identified as having ‘an unusual propensity to unfairly prejudice, inflame, or mislead the jury.‘” Bravo contends that “[e]vidence of specific instances of sexual conduct between the victim and the defendant [to show consent] is not one of those categories.” Bravo cites a number of Utah cases that speak of the prejudice inherent in evidence of sexual activity with someone other than the accused. See, e.g., State v. Martin, 2002 UT 34, ¶ 40, 44 P.3d 805. These cases do not, however, state that evidence of sexual activity with the accused does not share those prejudicial qualities. Indeed, the rationales articulated for the exclusion of rule 412 evidence—safeguarding the victim from an invasion of privacy and the potential embarrassment that is associated with public discussion of intimate sexual behavior—continue to have force when the accused and victim share a sexual history.
¶19 The difference between evidence of sexual activity with the accused and evidence of acts with a third party turns on the greater potential for probative value that may be found in a shared sexual history. The exceptions to
¶20 Because relevance is binary,
¶21 Application of
II. The District Court‘s Rule 412 Analysis
¶22 The district court permitted Bravo to testify generally that he and Victim had previously engaged in sexual activity, even after their divorce. The district court explained, “Bravo should be able to present evidence to the fact that these parties continued to have sexual liaisons after the divorce ..., otherwise the jury could speculate that once they‘re divorced they were separate from one another, they had no contact.” Neither party suggests that the district court abused its discretion by admitting that testimony. Indeed, the district court‘s decision in this respect appears consistent with the supreme court‘s reasoning in State v. Richardson. See 2013 UT 50, ¶ 26, 308 P.3d 526 (“[Rule 412(b)(2)] rests on the notion that a person is more likely to consent to sex with a past sexual partner.“).
¶23 Bravo argues that the district court abused its discretion by not allowing him to offer additional testimony concerning his sexual history with Victim. The history Bravo wanted to provide can be separated into three categories: (1) testimony that the couple engaged in unspecified “numerous other sex acts well outside this community‘s standards for sexual behavior,” as well as “pretty much everything else one could think of” such that “the events that happened on the night in question in this case were, if anything, tame for what had been the norm for their relationship“; (2) testimony concerning consensual “rough sex” including bondage, sadomasochism, and autoerotic asphyxiation; and (3) testimony that the couple had previously engaged in anal sex.
¶24 The district court denied Bravo‘s motion, stating, “I just don‘t see the relevance and even if there is a sliver of relevance in there, frankly, it would be my conclusion that the relevance would be outweighed by the danger of unfair prejudice.” The district court‘s ruling thus rested on the court‘s evaluation of both relevance and the potential for unfair prejudice.
A. Relevance of the rule 412 evidence
¶25 Under the binary standard of relevance Richardson articulated, the existence and nature of Bravo‘s prior sexual relationship with Victim are relevant to the issue of consent. See 2013 UT 50, ¶¶ 23-24, 308 P.3d 526; State v. Jaeger, 1999 UT 1, ¶ 13, 973 P.2d 404 (“[B]ecause the standard for determining whether evidence is relevant is so low, the issue of whether evidence is relevant is rarely an issue.“). If nothing else, the proffered evidence “contextualizes” Victim‘s sexual relationship with Bravo. See Richardson, 2013 UT 50, ¶ 25, 308 P.3d 526 (“The excluded evidence merely added detail to that [general] knowledge. If the general evidence of a sexual relationship was relevant, the more detailed evidence was as well.“). The district court therefore erred in concluding that the additional rule 412 evidence Bravo sought to admit was not relevant to the contested issue of Victim‘s consent.5
¶26 As explained above, relevance is not the only inquiry a district court must undertake before it admits evidence under
¶27 Evidence offered to prove consent under
¶28 Bravo‘s motion and oral proffer failed, in most respects, to specifically describe the evidence he sought to introduce. The defects in Bravo‘s proffer vary with respect to each category of prior sexual acts he wanted to put before the jury. The most glaring defects were found in the portions of his proffer that were broad characterizations of his sexual history with Victim. Bravo asserted that their past sexual activities: (1) consisted of “pretty much everything one could think of“; (2) fell “well outside this community‘s standards for sexual behavior“; and (3) would make the charged acts look “tame” in comparison.
¶29 State v. Richardson, 2013 UT 50, 308 P.3d 526, instructs that the probative value of prior sexual history may be greater when the prior acts are similar to the charged conduct. The Richardson court reasoned, “If a person is more likely to consent to sex with a past sexual partner, she is also more likely to consent to the kind of sexual relations she has had with a partner in the past.” Id. ¶ 26. This suggests that to determine relative probative value, a court may assess the similarity between the sexual history and the charged acts.
¶30 Bravo‘s use of general descriptions did not give the district court the information it needed to gauge the evidence‘s probative value. Instead, he invited the district court to consider the immense variety of human sexual practices, focus on those practices that would make Bravo‘s charged conduct look “tame,” and conclude that Victim‘s consent to whatever that past practice might have been was probative of whether Victim consented to the charged acts on the night of the alleged assault.7
¶31 Bravo never described the required “specific instances” of their prior practices. See
¶32 The next category of excluded evidence consisted of Bravo‘s proffered testimony that he and Victim had previously engaged in consensual “rough sex” including bondage, sadomasochism, and autoerotic asphyxiation. Although more specific than the characterizations addressed above, this proposed testimony still failed to provide the district court with the information it needed to assess the prior acts’ probative value on the issue of consent. The district court‘s repeated attempts to solicit more specific information from Bravo highlight the problems with Bravo‘s proffer.
¶33 At the pre-trial
[I]f Mr. Bravo testified that the pattern that was engaged in [during the charged incident] was something we did regularly before and after marriage, and it was, it was consented to by her. We just did this as a matter of course. This is the way we, the way we engaged each other, that might be a little different.... [I]t would be hard for Mr. Bravo to understand that when they did it on one occasion it wasn‘t okay on the next occasion, I suppose he could argue.
When the district court revisited the issue on the first day of trial, the court again queried, “Is there something more specific that Mr. Bravo could proffer today as to what this rough sex means and what he would like to produce evidence of?” and “What specifically
is [it] that Mr. Bravo would want to introduce evidence of? What are the practices?” Again, Bravo failed to provide the requested specificity.
¶34 The sexual practices Bravo identified as examples of the couple‘s previous rough sex—bondage, sadomasochism, and autoerotic asphyxiation—encompass broad categories of sexual behavior that may or may not be similar to Victim‘s allegations. By way of example, Bravo argued that their history of consensual bondage demonstrated Victim‘s willingness to having a dog leash pressed against her neck. But Bravo did not describe what he meant when he said they had engaged in bondage. Bondage could mean having a ligature stretched around one‘s neck, or it could describe countless other variations on the theme of being restrained. In this case, the probative value of prior instances of consensual choking with leash-like instruments would be greater than that of testimony that the consensual bondage involved restraint of Victim‘s hands during sex, even though both acts could be described as bondage.
¶35 Bravo argues that his proffer that he and Victim engaged in autoerotic asphyxiation tends to prove that Victim consented to being choked with a dog leash. The State correctly notes the difference between autoerotic asphyxiation, which bears little resemblance to the charged conduct, and erotic asphyxiation, which could conceivably describe what Victim testified occurred. Bravo responds that everyone understood that when he proffered testimony concerning autoerotic asphyxiation, he really meant consensual strangulation.
¶36 The ambiguity in Bravo‘s proffer underscores the importance of the
¶37 Similarly, without knowing more about what Bravo meant by “rough sex,” the court could not analyze how probative that history was to show that Victim consented to being held down by her throat, picked up, thrown onto a bed, and flipped over onto her stomach. Without the detail the district court repeatedly requested, the court was hamstrung in its ability to conduct the
¶38 The only evidence that Bravo described with any specificity was the type of evidence Richardson addressed—that Bravo and Victim had previously engaged in anal sex.9 As in Richardson, one of the charges against Bravo involved an accusation of nonconsensual anal intercourse. Evidence that Bravo and Victim previously engaged in anal sex would have probative value under Richardson‘s logic because that evidence would make Bravo‘s consent defense “easier to accept.” See 2013 UT 50, ¶ 42, 308 P.3d 526.
¶39 The district court stated as to all of the excluded evidence that “even if there is a sliver of relevance in there ... the relevance would be outweighed by the danger of unfair prejudice.” See
erencing the probative value of the evidence. By its express terms,
¶40 We agree with the district court that in light of the totality of the allegations against Bravo, the evidence that he and Victim had previously engaged in anal sex added little to prove consent in this case. The purpose of the anal-sex evidence was to provide contextualizing detail about the prior sexual relationship and to suggest that Victim was more likely to have consented to anal sex during the charged incident because she had consented to the same act with Bravo in the past. Victim‘s allegations, however, involved much more than nonconsensual anal sex. Victim testified that the Bravo‘s assault on her began with him forcibly entering her apartment several weeks after being told to leave and never return. Bravo then threw Victim to the floor, choked her, raped her vaginally, and carried her into her bedroom, where he then penetrated her anally. When viewed in the context of the entirety of Bravo‘s alleged actions, evidence that Victim had consented to anal sex in other circumstances would not have much probative value to demonstrate that she had consented to it on this occasion.
¶41 By contrast, the testimony posed a significant danger of unfair prejudice to Victim in the form of revealing intimate and potentially embarrassing details about her sexual history. See State v. Richardson, 2013 UT 50, ¶ 31, 308 P.3d 526 (acknowledging, with regard to anal-sex evidence, “the most obvious 403 argument—that the unconventional nature of the sexual conduct involved would lead to unfair prejudice“); Boyd, 2001 UT 30, ¶ 46, 25 P.3d 985 (acknowledging “the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details” (citation and internal quotation marks omitted)). The evidence also raised the specter of the “infusion of
CONCLUSION
¶42 Under the binary concept of relevance explained in Richardson, the district court erred in determining that the