STATE of Utah, Plaintiff and Appellee, v. Thomas Wayne DENOS, Defendant and Appellant.
No. 20110959-CA.
Court of Appeals of Utah.
Aug. 1, 2013.
Rehearing Denied Dec. 5, 2013.
2013 UT App 192
John E. Swallow and Ryan D. Tenney, Salt Lake City, for Appellee.
Judge JAMES Z. DAVIS authored this Opinion, in which Judge MICHELE M. CHRISTIANSEN concurred. Judge GREGORY K. ORME concurred in part and dissented in part, with opinion.
Opinion
DAVIS, Judge:
¶ 1 Thomas Wayne Denos appeals his conviction of one count of rape, a first degree felony, see
BACKGROUND
¶ 2 On or about December 11, 2010, Denos and E.M. attended a party hosted by E.M.‘s friend (Friend) and Friend‘s boyfriend (Boyfriend) at their home. Denos and E.M. were friends and rode to the party together. Although they had briefly dated previously, they were not dating at the time of the party. When they arrived at the party, most of the other guests were drinking heavily.
¶ 3 At the party, E.M. drank heavily and smoked marijuana. She soon became noticeably intoxicated. At some point in the evening, after having consumed copious quantities of alcohol, E.M. made her way to Friend and Boyfriend‘s bedroom. Eventually Boyfriend joined her and the two had sex. After Boyfriend left, E.M. either fell asleep or passed out.
¶ 4 Defense counsel asserted that some time after Boyfriend left, another man (Guest) entered the bedroom and attempted to have sex with E.M. E.M. called out for help, and Denos entered the room to remove Guest. Denos then stayed in the room with E.M. and lay down next to her. According to Denos, after laying down by E.M., the two began to cuddle and discuss their relationship. After talking for a few minutes, they began to touch each other and take off their clothes, and they eventually had consensual sex.
¶ 5 According to E.M., the “first thing” she remembered after falling asleep was waking to find Denos on top of her, kissing her neck and touching her breasts and vagina. E.M. passed out again and then awoke to find Denos performing oral sex on her. She pulled his hair and repeatedly told him “no,” but he continued. E.M. asked Denos to “promise [he would] not have sex with [her] no matter what,” and he said, “Don‘t worry. I promise.” (Internal quotation marks omitted.) E.M. then passed out a third time and woke to find Denos “on top of [her] having sex with [her].” “[B]efore [E.M.] could ... say anything he pulled out and he ejaculated on [her] stomach.” E.M. “didn‘t know what to do” and “felt like [she] just needed to go to sleep” and not “worry about anything.” Denos stayed with her, and they slept in the same bed until morning.
¶ 6 E.M. testified that when she awoke in the morning she felt “guilty” and worried that what happened with Denos was “all [her] fault because ... [she had] put [herself] in a bad situation” by drinking and doing “bad things.” Nevertheless, she decided to tell Friend and Boyfriend what had happened to her. Defense counsel proffered at trial that E.M. and Boyfriend also confessed their drunken sexual encounter to Friend at that time. Defense counsel‘s version of events is reflected in the presentence investigation report prepared after trial, but it is not contained elsewhere in the record. Friend testified that E.M. was crying when she approached Friend and Boyfriend about the incident with Denos.
¶ 7 Based on rule 412 of the Utah Rules of Evidence, and over defense counsel‘s objection, the trial court refused to permit defense counsel to cross-examine E.M. about her encounters with Boyfriend and Guest or her confession to Friend about the incident with Boyfriend. See generally
¶ 8 Also at trial, the court permitted the State to introduce rule 404(b) testimony from three women, K.L., B.A., and B.E., who claimed to have been victimized by Denos in the past. See generally
¶ 9 B.A. testified that in April 2007, Denos and several other people attended a sleepover at her house. She testified that she fell asleep while watching a movie and then awoke to find that Denos had placed her hand on his penis and was rubbing her vagina “[s]kin to skin.” She told Denos to stop, and he responded, “‘Please.‘” She repeated, “No. Stop,” and got up to go to another room. B.A. did not report the incident to police.
¶ 10 B.E. testified that she and Denos both attended a party in July 2010 and that she had been drinking heavily. The party ended late at night, and B.E., her brother, and Denos went to her brother‘s house to sleep. B.E.‘s brother went to sleep in his room, and B.E. and Denos went into a back room together with the intention of sleeping. B.E. dozed off in the house and then awoke to find herself in Denos‘s truck with him on top of her having sex with her. B.E. did not remember how she got to the truck but believed that she walked out on her own and was not forced. When she realized that Denos was having sex with her, she told him to stop. He did not stop immediately but “stopped after a minute,” and he and B.E. went back inside the house. They then lay back down together in the house and stayed there. B.E. reported the incident seven months later, and Denos was tried and acquitted two weeks before the trial in this case.
¶ 11 Defense counsel moved to exclude the rule 404(b) evidence, but the trial court denied the motion and permitted the women to testify. The jury convicted Denos of the charges against him, and he now appeals.
ISSUES AND STANDARDS OF REVIEW
¶ 12 Denos first asserts that the trial court erred by prohibiting his counsel from eliciting testimony regarding E.M.‘s encounters with Boyfriend and Guest, arguing that curtailing cross-examination in this way was a violation of his Sixth Amendment confrontation right, see
¶ 13 Denos next contests the trial court‘s determination that the rule 404(b) evidence was admissible under the circumstances of this case. We review this determination for an abuse of discretion. State v. Nelson-Waggoner, 2000 UT 59, ¶ 16, 6 P.3d 1120.
ANALYSIS
I. Rule 412 Evidence
¶ 14 Denos asserts that the trial court violated his Sixth Amendment right to confront witnesses when it excluded evidence related to E.M.‘s encounters with Boyfriend and Guest under rule 412 of the Utah Rules of Evidence. Rule 412 provides, with limited exceptions, that “evidence offered to prove that a victim engaged in other sexual behavior” and “evidence offered to prove a victim‘s sexual predisposition” is “not admissible in a criminal proceeding involving alleged sexual misconduct.”
[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witnesses.
Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986) (omission in original); accord State v. Clark, 2009 UT App 252, ¶ 16, 219 P.3d 631.
A. The Evidence Relating to Guest Was Not Subject to Exclusion Under Rule 412, but Its Exclusion Constituted Harmless Error.
¶ 15 First, we are not convinced that evidence relating to E.M.‘s encounter with Guest fell within the ambit of rule 412, which excludes only evidence of a victim‘s “sexual behavior” and “sexual predisposition.” See
¶ 16 Evidence that Denos entered the room where E.M. was sleeping in order to remove Guest, who was attempting to assault E.M., does not relate to E.M.‘s sexual behavior or predisposition. If anything, this evidence makes E.M. appear less sexually promiscuous because it portrays her rejecting a man who was attempting to have sex with her. As Denos observes, this evidence “certainly might reflect on [Guest]‘s sexual proclivities” but does not reflect on E.M.‘s. Accordingly, it is not subject to exclusion under rule 412.1 Cf. State v. Martin, 2002 UT 34, ¶ 42, 44 P.3d 805 (rejecting the trial court‘s conclusion that evidence that the victim had previously accepted rides with strangers reflected her sexual proclivities and was inadmissible under rule 412).
¶ 17 Nevertheless, the trial court‘s exclusion of this evidence was harmless beyond a reasonable doubt because the evidence was of little, if any, probative value. See generally State v. Vigil, 2013 UT App 167, ¶ 11 (“‘[A]n otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.‘” (quoting Van Arsdall, 475 U.S. at 681)). Denos was not prevented from asking E.M. whether he entered and remained in the room at E.M.‘s invitation or from testifying to that himself. Indeed, Denos testified at trial that after most of the other guests had left, E.M. “came out and asked [him] if [he would] stay in the room with her” and that he then “went in the room and laid down with her.” Denos asserts that without evidence that he went into the room to get rid of Guest, it was “possible that the jury received the ... impression that Denos invited himself [into] the room with E.M. in a predatory fashion” and that Denos, having seen E.M. enter the room in her inebriated state, “saw his opportunity to take advantage of an extremely intoxicated girl.” We disagree. This impression, if it existed, could easily be overcome by testimony suggesting that Denos was invited into the room, regardless of whether testimony relating to the reason for the invitation were permitted.2 Accordingly, although we agree
B. The Evidence Relating to Boyfriend Was Properly Excluded Under Rule 412 Because Denos Failed to File a Pretrial Motion for Its Admission and the State Did Not Open the Door to the Evidence at Trial.
¶ 18 The evidence relating to Boyfriend clearly related to E.M.‘s sexual behavior and was therefore subject to the dictates of rule 412. A party who seeks to offer rule 412 evidence must “file a motion that specifically describes the evidence and states the purpose for which it is to be offered ... at least 14 days before trial unless the court, for good cause, sets a different time.”
¶ 19 Denos alternatively argues that even if his failure to file a rule 412 motion precluded him from introducing the evidence relating to Boyfriend, the State opened the door to that evidence when it questioned E.M. and Friend about E.M.‘s demeanor the morning after her encounters with Boyfriend and Denos. E.M. testified that she felt “guilty” and “stupid” because she had “been reckless and ... done bad things” and that she believed what had happened to her the night before had been “[her] fault.” Friend testified that E.M. began crying when she encountered Friend the next morning. Denos asserts that “fundamental fairness” required the trial court to permit him to cross-examine the witnesses about the encounter with Boyfriend so the jury could be given an alternative explanation for E.M.‘s emotions, i.e., her guilt over having slept with her friend‘s boyfriend.
¶ 20 In part due to the incomplete record, which fails to provide any insight into what Friend and E.M. would have testified to had they been cross-examined as Denos requested, see supra note 3, we agree with the trial court that there is nothing to indicate that E.M. felt guilty or was crying “mostly because of [having had] sex with her best friend‘s boyfriend.” And while “[t]here may have been other things that factored into
II. Rule 404(b) Evidence
¶ 21 Denos next contends that the trial court erred in permitting the rule 404(b) witnesses to testify. Evidence sought to be admitted under rule 404(b) must withstand a three-part inquiry. State v. Nelson-Waggoner, 2000 UT 59, ¶¶ 18-20, 6 P.3d 1120. First, it must be “offered for a proper, noncharacter purpose,”
¶ 22 In this case, the State sought to introduce rule 404(b) testimony for the proper noncharacter purpose of proving lack of consent. See generally
When one person claims rape, the unusual and abnormal element of lying by the complaining witness may be present. But when two (or more) persons tell similar stories, the chances are reduced that both are lying or that one is telling the truth and the other is coincidentally telling a similar false story.
State v. Verde, 2012 UT 60, ¶ 48, 296 P.3d 673 (citation and internal quotation marks omitted). Denos asserts that the events recounted by the rule 404(b) witnesses were not similar to the events that occurred in this case because the type of sexual activity varied with each of the three witnesses: K.L. alleged that Denos touched her genitals over her underwear, B.A. alleged that he touched her genitals under her underwear, and B.E. alleged rape but no fondling. E.M. alleged that Denos fondled her breasts in addition to her genitals and that Denos performed oral
¶ 23 We next turn to the question of whether the danger of unfair prejudice substantially outweighed the probative value of the rule 404(b) evidence. In analyzing this question, we employ what have come to be known as the Shickles factors, which include
the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.
State v. Shickles, 760 P.2d 291, 295-96 (Utah 1988). We address each factor in turn.
¶ 24 First, the evidence was generally strong because the witnesses “testified in person at trial and were available for cross-examination,” see State v. Marchet (Marchet I), 2009 UT App 262, ¶ 45, 219 P.3d 75. However, the strength of B.E.‘s testimony was undermined by the fact that Denos had been acquitted of raping her only two weeks before the trial in this case, though any prejudice was mitigated by the fact that the jury was informed of the acquittal. Cf. Nelson-Waggoner, 2000 UT 59, ¶ 31, 6 P.3d 1120 (indicating that a defendant‘s acquittal on an alleged rape to which a rule 404(b) witness testified made her testimony “suspect“); State v. Hildreth, 2010 UT App 209, ¶ 44, 238 P.3d 444 (explaining that acquittal on charges relating to the testimony of a rule 404(b) witness “undercut[s] the credibility of the [witness‘s] testimony“). Thus, while this factor weighs in favor of admitting K.L.‘s and B.A.‘s testimony, it may weigh against admitting B.E.‘s testimony.
¶ 25 Second, as discussed above, the events were strikingly similar. In particular, they demonstrate that Denos had a habit of assaulting women while they were unconscious or asleep. The likelihood that four different women would independently and falsely assert this particular modus operandi is low.
¶ 26 Third, at least as to B.E., the interval of time between the two crimes was small. The assault on E.M. took place less than five months after the assault on B.E., and even Denos concedes that this “would not be considered particularly lengthy.” However, the incidents with K.L. and B.A. took place more than three-and-a-half years before Denos‘s assault of E.M. and more than three years before his alleged assault of B.E., which leads this factor to weigh against admission as to those two witnesses’ testimonies. Cf. Hildreth, 2010 UT App 209, ¶ 44 & n. 12, 238 P.3d 444 (holding that a three-year interval was “undoubtedly” lengthy). But cf. Marchet I, 2009 UT App 262, ¶ 45, 219 P.3d 75 (holding that a nearly two-and-a-half-year interval was “sufficiently proximate to warrant ... admission“).
¶ 27 Fourth, the need for the evidence was great; without it, “the jury would be left to resolve a contest of credibility between” Denos and E.M. See Marchet I, 2009 UT App 262, ¶ 45, 219 P.3d 75 (internal quotation marks omitted). And fifth, there was no alternative means of proving lack of consent that would be similarly effective. See
¶ 28 Finally, it is unlikely that the jury would have been roused to overmastering hostility by the rule 404(b) evidence. K.L.‘s and B.A.‘s testimonies revealed less disturb-
¶ 29 Thus, at least five of the six Shickles factors weigh in favor of admitting each rule 404(b) witness‘s testimony. Because this testimony complies with the requirements of rules 402, 403, and 404 of the Utah Rules of Evidence, we cannot say that the trial court abused its discretion in admitting it.
CONCLUSION
¶ 30 Although the incident with Guest was not presumptively inadmissible under rule 412, its exclusion was harmless beyond a reasonable doubt. Furthermore, the trial court did not err by excluding evidence relating to the incident with Boyfriend because Denos failed to file a motion to admit the evidence and the State did not open the door to the evidence at trial. Finally, we agree with the State that the trial court did not abuse its discretion in admitting the rule 404(b) evidence. Accordingly, we affirm Denos‘s convictions.
ORME, Judge (concurring in part and dissenting in part):
¶ 31 I concur in the lead opinion except for its conclusion that Denos‘s failure to file a timely rule 412 motion precluded him from cross-examining E.M., who was only seventeen at the time of the incident, about why she felt “guilty” and “stupid” because she had “been reckless and done bad things” and from cross-examining Friend about the circumstances of E.M.‘s crying “when she encountered Friend the next morning.” These were topics introduced by the State‘s witnesses and Denos had every right to examine E.M. and Friend about their testimony.
¶ 32 There is nothing in this testimony that would necessarily implicate rule 412 or the policy underlying it. For all we know, E.M. would explain that she felt guilty and stupid for drinking too much, that she was reckless for using illegal drugs, and that she had done bad things because she stole money from her friends’ purses during the party. For all we know—and the lead opinion points out that there is little or nothing in the record bearing on what the testimony would have been had Denos been permitted to pursue his intended cross-examination—Friend would have explained that E.M. was upset because she did not have permission to stay the night and was going to be in big trouble when she got home.
¶ 33 I do agree that if the testimony were along these or similar lines, Denos‘s failure to comply with rule 412 would have precluded him from directly asking about prior sexual conduct on E.M.‘s part. But if E.M.‘s or Friend‘s answers included disclosures about prior sexual conduct by E.M., the responsibility would not lie with Denos and rule 412 would not apply. If the scenario played out that way, it would be fair to regard the State—or at least these witnesses—as having opened the door by introducing the subjects of guilt, stupidity, recklessness, “bad things,” and crying.
¶ 34 It was categorically unfair to permit the witnesses to trot these characterizations out yet preclude Denos from subjecting them to cross-examination, thereby leaving the jury to speculate about what explained the behaviors vaguely touched upon by E.M. and Friend. Because Denos‘s right to cross-examine this testimony was preempted completely, and not just to the extent of his asking directly about E.M.‘s prior sexual conduct, his confrontation rights were violated. For this reason, I would reverse his convictions and remand for a new trial.