STATE of Utah, Plaintiff and Respondent, v. Phillip Frederick COX, Defendant and Appellant.
No. 890331-CA.
Court of Appeals of Utah.
Jan. 31, 1990.
Affirmed.
BENCH and BILLINGS, JJ., concur.
John R. Bucher, Salt Lake City, for defendant and appellant.
R. Paul Van Dam and Dan R. Larsen, Salt Lake City, for plaintiff and respondent.
Before DAVIDSON, GARFF and JACKSON, JJ.
OPINION
DAVIDSON, Judge:
Defеndant Phillip Frederick Cox was convicted by a jury of rape. He argues on
In the early morning hours of July 16, 1987, defendant went to the victim‘s home in Ferron, Utah, аnd committed the alleged rape. The victim reported the incident to the Emery County Sheriff‘s Office later that day.
During the course of investigation, the victim reported a prior act of nonconsensual intercourse that occurred between defendant and the victim on June 26, 1987.1 Later, two other women in the community reported that they were sexually assaulted by defendant in 1985. These incidents were reported to police after it was learned that charges were pending against defendant. Over defendant‘s objection, both women testified at trial about the 1985 incidents and the victim testified about the June 26, 1987, incident.
PRIOR BAD ACTS
Defendant first argues that the 1985 incidents were unrelated to the July 1987 rape and were introduced simply to demonstrate defendant‘s bad character. The State argues that the testimony of both women was properly admitted to show defendant‘s intent, motive, plan, or knowledge. Defendant and the State rely on
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Evidence of prior bad acts is admissible at trial provided it has “a special relevance to a controverted issue and is introduced fоr a purpose other than to show the defendant‘s predisposition to criminality.” State v. Featherson, 781 P.2d 424, 426 (Utah 1989) (quoting State v. Shickles, 760 P.2d 291, 295 (Utah 1988)). When prior bad act evidence establishes a constitutive element of the crime and is directly probative of а disputed issue it may be admissible even if it tends to prove that defendant has committed other crimes. Id. See also State v. Gotschall, 782 P.2d 459, 462-63 (Utah 1989) (admission of defendant‘s threatening remarks made several hours before killing relevant to show defendant‘s stаte of mind); Shickles, 760 P.2d at 295-96 (evidence of defendant‘s sexual assaults performed on child victim admissible in kidnapping trial when defendant had prior trusting relationship with victim‘s family and intent to kidnap was hotly contested issue); State v. Johnson, 748 P.2d 1069, 1075 (Utah 1987) (evidenсe of other forgery acts relevant and probative when defendant‘s identity is at issue).
Even if evidence of other crimes has relevance beyond proving mere criminal disposition, it is still subject to the рrotections of
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....
The court must balancе the probative value of such evidence against the danger of unfair prejudice. In applying the
On appeal, the State argues that the similarities between the 1985 incidents and the 1987 incident justify admission because the evidence shows a modus operandi or common design which rebuts the defense of consent.2 It contends that the following factors are common to each assault: (1) defendant knew each victim; (2) defendant had nonconsensuаl intercourse, at each victims’ home, while the victims’ boyfriends or husbands were not home; (3) defendant was uninvited and began the assaults soon after entering the home; (4) defendant laid on top of the victims; (5) defendant did not completely remove his clothing or the victims’ clothing, and in each instance, attempted to kiss the victim on the face and neck; and (6) defendant left the premises after completing the assault.
We cannot conclude that the actions of defendant constitute a common design or modus operandi: The similarities are common to many assault or rape cases and are not peculiarly distinctive of defendant‘s conduct. See e.g. Featherson, 781 P.2d at 428. Defendant‘s acts were not “so unique as to constitute a signature.” Youngblood v. Sullivan, 52 Or.App. 173, 628 P.2d 400, 402 (1981) (evidence of similar prior sexual assault in public park toilet admissiblе to rebut defendant‘s claim of consent). Nor was defendant‘s identity in issue. See Johnson, 748 P.2d at 1074 (prior bad acts admitted under identity exception to rule
It was also error to admit evidence of these prior bad acts because they were too remote in time to the crime charged. The remoteness inquiry asks whether “other acts have clearly probative value with respect to the intent of the accused аt the time of the offense charged.” Featherson, 781 P.2d at 430 (quoting United States v. Scott, 701 F.2d 1340, 1345-46 (11th Cir.) reh‘g denied, 707 F.2d 523, cert. denied, 464 U.S. 856, 104 S.Ct. 175, 78 L.Ed.2d 158 (1983). The two prior acts occurred nearly two years before defendant was charged with a third, unrelated sexual assault. There is no apparent conneсtion between defendant‘s earlier conduct and his intent in relation to the 1987 rape charge. Featherson, at 430; United States v. Cuch, 842 F.2d 1173, 1176 (10th Cir.1988). Any relevance which might be found in this evidence was substantially outweighed by the danger of “unfair prejudice, cоnfusion of the issues, or misleading the jury.” Featherson, 781 P.2d at 431 (quoting
JUNE 26, 1987, INCIDENT
Defendant next contends that the prior alleged act of nonconsensual intercourse between defendant and the victim was similarly inadmissible because it only
REVERSIBLE ERROR
“In order to constitute reversible error, the error cоmplained of must be sufficiently prejudicial that there is a reasonable likelihood of a more favorable result for the defendant in its absence.” Featherson at 431; State v. Bruce, 779 P.2d 646, 656 (Utah 1989); State v. Gentry, 747 P.2d 1032, 1038 (Utah 1987). Although the State presented evidence which might bе sufficient to sustain a rape conviction, we are nevertheless persuaded that the jury may have reached a different result in the absence of the highly prejudicial evidence of the prior sexual assaults. See State v. Mitchell, 779 P.2d 1116, 1122 (Utah 1989) (if the “taint” caused by inadmissible evidence is sufficient, “it is irrelevant that there is sufficient untainted evidence to support a verdict“). The evidence of the prior crimes “presumptively had a strong tendency to suggest to the jury that defendant was guilty of the charged crime.” Bruce, 779 P.2d at 657 (Zimmerman, J., concurring and dissenting).
We decline to reach the other issues raised by defendant and instead reverse defendant‘s conviction and remаnd for a new trial.
GARFF, J., concurs.
JACKSON, Judge (dissenting):
This case presents a narrow issue—consent as a defense to rape. If the victim consented, rape was not committed. Defendant admits entering the victim‘s home by climbing through a window during thе nighttime and the act of sexual penetration.
I would distinguish State v. Featherson, 781 P.2d 424 (Utah 1989), which deals with a similar, but not identical issue. In Featherson, the evidence of prior bad acts was “lustful conduct” of the defendant prior to an “aggravated sexual assault.” Consent to rape was not an issue. The cases relied on in section IB of Featherson are not factually or legally the same as we have here. In those cases, the defendants did not follow through with rape in the prior incidents. The Oregon cаse cited in Featherson, State v. Urlacher, 42 Or.App. 141, 600 P.2d 445 (1979), involved sexual advances to two women, but defendant did not proceed when one cried and the other got angry. The court said the evidence was peripheral. I think this case is more like another Oregon case relied upon by the State, Youngblood v. Sullivan, 52 Or.App. 173, 628 P.2d 400 (1981). There, defendant raped and sodomized two women he did not know in restrooms in parks at midday. The court said this evidence of prior acts was admissible to show modus operandi, which rebuts the defense of consent. In this case, two women known to Cox were raped by him in their homes at night after he knew their male companions were gone. Cox utilized the same modus operandi in this case.
I prefer the rationale of Youngblood basеd on facts closer to those here. I would therefore affirm defendant‘s conviction based on Youngblood and distinguish Featherson as indicated.