State v. Doporto

Utah, Appellee, Plaintiff STATE of DOPORTO,

Michael Defendant Appellant. 940014.

No.

Supreme Court Utah. 17, 1997.

Jan.

Rehearing March Denied

486 Gen., Graham, Atty. Brunker, scheme, any plan, Jan Thomas design, oppor- Gen., Atty. City, Lake plaintiff tunity, Asst. Salt for or claim of intent” and therefore was appellee. not admissible. The court held that the oth- proffered by State, however, er incidents Mary Corporon, City, C. Salt Lake were not too remote and also ruled that there appellant. defendant and were sufficient similarities between the other STEWART, Associate Chief Justice: incidents and the crime Doporto for which charged permit had been testimony to the appeal, contests, Doporto On Michael on remaining the four witnesses under Rule basis the of numerous asserted errors in the 404(b). The trial court then ruled that the court, sodomy his conviction for on a probativeness proffered testimony of the prison child. He was sentenced to a term of all four testify witnesses who would about years fifteen to life. We hold that the trial five incidents was “substantially out- court erred in evidence of weighed by danger prejudice, of unfair crimes, verdict, vacate the and remand for a issues, confusion of the or misleading [of] the new trial. jury” (2) testimony any but that “the two I. FACTS proffered prej- witnesses would not be udicial[,] they nor would confuse or mislead 17, 1993, On March charged the State Do- jury they if were admitted into evidence.” porto sodomy child, with the crime of on a a Accordingly, the court allowed the State to degree felony, first in violation of Utah Code any proffered select two of the witnesses and § Doporto Ann. 76-5-403.1. asserted that present testimony. their indigent requested he was that the court appoint counsel for him. The court ruled During pretrial proceedings, Doporto in- Doporto indigent was not and refused partial formed the court that he had a hear- Doporto’s request provided that counsel be ing deficiency, Dopor- and the court allowed Thereafter, expense. at the Doporto State’s to’s wife to sit by next to him and assist him represented throughout proceed- himself repeating into his ear range at close what ings. persons other in the courtroom saying. were Doporto sodomizing was with trial, provided At Doporto the court with A.W., girl years who was seven old at the amplification headphones linked the micro- trial, alleged time of the crime. Prior to phone systems in the courtroom and refused a motion in filed limine to allow six to allow his wife to sit with him as an “inter- persons testify that Doporto also preter.” sexually had abused on them other occasions. victim,

Doporto objected A.W., the admission of this testified that sometime objection during and renewed his at trial. summer when she was years old, The trial court ruled in a memorandum seven Doporto’s deci- she went to home sion that under Rule of the Utah when one of daughters invited her Evidence,1 Rules of sleep of two of During over. evening, Doporto persons these was room, “too remote [in time] be entered the asked A.W. she wanted 1. Rule 404 by states: prosecution offered in a homicide case to rebut evidence that the victim was the first (a) generally. Character evidence Evidence aggressor; person’s aof or a character trait of character (3)Character of witness. Evidence of the purpose proving is not admissible for the witness, provided character of a as in Rules conformity particular action in therewith on a 607, occasion, and 609. except: (b) crimes, (1) wrongs, Other or acts. Evidence Character of accused. Evidence of a crimes, wrongs of other pertinent or acts by is not admissi- trait of offered character an ac- cused, prove same; person ble to by prosecution the character or in order to rebut the conformity to show perti- action in Character of victim. Evidence of a therewith. may, nent pur- trait of character of the victim of the admissible for other accused, motive, prose- poses, proof crime offered opportunity, an such as same, intent, cution preparation, to rebut the plan, knowledge, or evidence of identity, peacefulness character trait of of the victim or absence of mistake or accident. Doporto given prior to lotion, sit notice had her on then some him, legs be. pulled he her who those witnesses would next to where couch lap, inside of that in she was his rubbed lotion B.J.L. testified when onto panties. Doporto legs, years and touched her and a friend of Do- her eleven old of one lay room later returned and gone Doporto’s then left the had porto’s daughters, she her, nightgown up, arrived, her pulled down behind answered house. When she anally door, her. After sodomized daughter informed her room, attempted to wake Do- home, left A.W. driving go not and invited her asleep daughter, either porto’s who was he to a him. She testified that took her respond. asleep to be and did pretending location, clothing, and remote removed her sleep. morning, In the cried herself to A.W. had intercourse with her. B.J.L. stated things and left. gathered her A.W. town, Doporto gave back into drove dollar, happened her a told her that what had that A.W.’s behav- AW.’s mother testified secret, parents, a and that she told her was changed the same time. had at about ior they her would send would not believe and in school in developed difficulties while She away be in some her would harmed grade, she said that wanted the second way. appearance, and change her name and her adults, away particularly from men. shied T.M., niece, two testified as to during late aunt testified that A.W.’s 1980, than prior of abuse. more incidents 1988, visit, on a A.W. summer of while years crime and eight prior charged disrobing in her aunt’s seemed uncomfortable trial, years T.M. was prior eleven when appeared prior taking a bath and presence old, family years a about five she attended in experience pain she sat the bath- when Doporto’s wife T.M. gathering. informed in aunt a dark stain tub. Her also noticed go and that he that she should with initially and panties area of the crotch AW.’s give would her a bath. T.M. stated wiping adequate- that A.W. assumed bathroom, he Doporto took her into the when going to then ly after the bathroom. She bathtub, baby oil on placed her in the rubbed odor, noticed, the stain had no her, Ap- her. and then had intercourse with panties threw the trash. and she arrangements had made for parently been transcript no in the trial There is night. stay her to T.M. testified parents about that she either notified A.W.’s during times Doporto raped her two more treatment on sought the stain medical evening. point, of the At one course behalf. A.W.’s dogs in T.M. that he showed her some stated pediatrician, also a Dr. The State called that if she yard the back and informed her Madsen, psy- Keith clinical Edward had anyone happened, told what ever Ravesten, Lynn expert Dr. wit- chologist, dogs would eat her. Dr. that anal inter- nesses. Madsen testified another which T.M. related incident also seven-year-old by an on a course adult male approximate- when she was occurred produce tearing bleeding girl could family At ly years old. another fourteen anus, he that similar also testified room gathering, Doporto came into the frequently is tearing bleeding in children watching and told where television T.M. Dr. by bowel Ravesten caused movements. five money gave for her. He her her he had patterns concerning typical behavior testified dollars, room, unzipped her into took and described com- of victims of sexual abuse her, attempted kiss pants. her He then personality changes. He stated that mon underwear, and “sticked pulled her down years will often several to re- children wait vagina.” fingers [her] inside port incidents of abuse. number of addition, appeal, Doporto asserts a presented On the testi- ad- find the erroneous it had errors. Because we mony of the two selected witnesses abuse sexual permitting mission of evidence pursuant to the court’s order evi- trial, we will warrant a new Doporto’s alleged prior sufficient to dence of sexual only the extent other issues in the address the crimes. There no evidence record they may upon proceedings upon bear at a new principle requiring relied the same trial. separate severance separate trials for charges against a defendant that are reason II. APPELLATE RE- STANDARD OF ably McCumber, E.g., severable. State v. VIEW WITH RESPECT TO ADMIS- (Utah 1980). 622 P.2d SIBILITY OF EVIDENCE OF OTH- category, prior The second crime evidence ER CRIMES as circumstantial evidence of an element of a admissibility charged, poses particularly difficult in a criminal trial raises fundamental issues problem integrity judicial for the fairness also affect to some extent the truth-finding cess in its function because nei- appellate standard of review that an ther practica- bifurcation nor severance is a apply reviewing should a conviction based avoiding ble alternative for in part on such evidence. effect such evidence. It is nevertheless Evidence of crimes be ad admissible under circumstances.2 See prosecution’s missible in the case chief for Johnson, State v. 1074-75 First, purposes. two commission of (Utah 1987); Tanner, State v. itself, may, crimes constitute an element of The decision whether such the crime or bear on the sentence to requires evidence should be admitted a sensi- imposed, capital inas crimes and some balancing tive of the inherent for mandatory crimes which minimum sen against such evidence the need for such evi- may Second, imposed. tences evidence of special dence and its proba- articulated prior may crimes be adduced as circumstan tiveness of a material issue that is sufficient tial of a material element of the prejudice to override the so that the issue of charged. highly prejudicial crime effect guilt rationally is decided on the evidence prior of crime recognized evidence has been being rather than inferred from the bad in both instances and dealt inwith different character of the defendant. The fundamen- ways. posed by tal dilemma nature category The first prior of prior (as of crime logical evidence and its is admissible because the commission of a opposed legal) relevance has been stated prior crime or aggravating crimes is an fac- Wigmore: Dean constituting tor an element of the crime proved beyond and must be a rea- almost be said that it is because prosecution sonable doubt for the prove all of the relevancy specific indubitable bad charge. elements of that enhanced We showing acts the character of the accused have held that the crime evidence must that such objec- evidence is excluded. It is not be allowed to the finder of fact tionable not appreciable because has no deciding guilt underly- issue of on the probative value but because it has too ing charge. end, To that required we have much. The natural and inevitable tenden- presented crime evidence be cy of the judge tribunal —whether separate proceeding, bifurcated after the jury give weight excessive —is proceeding guilt where is decided on the vicious record of crime thus exhibited and underlying charge. We have so held both either to allow it to strongly bear too on capital, 439, Bishop, State v. 753 P.2d 498-99 present charge proof or to take the (Utah 1988) (Zimmerman, J., concurring in condemnation, justifying it as irrespec- result); (Durham, J., id. at 496 concur- guilt tive the accused’s present ring separately); (Stewart, J., id. at 489 con- charge. curring part concurring result), in the cases, noncapital Wareham, (Till- Wigmore 58.2, State v. 1 § 772 on Evidence at 1212 960, 1983). P.2d 963-65 We have also ers rev. ed. scholarly cases,

2. For a and useful Myers, Uncharged overview of the see John E.B. Miscon- permissible purposes circumstances Litigation, duct Evidence in Child Abuse 1988 admitting prior for crime evidence in child abuse Utah L.Rev. 479.

489 argues The State the correct cases have also from a vacillated sub silentio standard, in this case is standard review the “abuse de novo review see State v. Lena standard, Pena, (Utah citing burg, 432, discretion” State v. 1989); 781 P.2d 437-38 (Utah 932, 1994), Featherson, 424, 869 P.2d 938 and State v. State v. 781 P.2d 437-28 (Utah (Utah Hamilton, 232, 1992). 1989); Shickles, 827 P.2d 239-40 291, State v. 760 P.2d (Utah broadly 1988); appellate Johnson, Both cases state that 295-96 748 courts, (Utah 1987), reviewing rulings on P.2d 1074-75 to an abuse admissibility of should of discretion accord standard. See State v. Gotsch all, (Utah 1989); discretion to trial court. broad But while State v. Saunders, (Utah 1985); gov the rule of broad trial court discretion Tanner, (Utah State v. appellate generally many erns review evi- 1983). dentiary certainly rulings, always cases, particular policies the case. Pena, distinguished we between review underlying evidentiary require issues for respect pure correctness with issues of standard of appellate stricter review law; de novo and abuse discretion review Pena, courts. 869 P.2d at 937-38. respect application to issues of of law to facts; review clear error with have not We addressed the issue of respect findings of fact. 869 P.2d at 935- scope rulings review of questions fact, 39. As to mixed of law and since our decision Pena. Suffice we stated that degree of discretion ac- say it to that the current status of the case corded a trial fall court could within a broad respect law with to appellate review of continuum from little no discretion to inconsistent, highly crime evidence is if not discretion, depending broad on the nature of Appeals chaotic. Some Court of cases on the policies underlying governing law and issue have stated that Rule raises the occurrence of multitudinous factual varia- questions of law that are reviewed for cor giving many highly tions rise to subtle differ- rectness, findings with attendant factual eval Id. at ences. 937-38. Olsen, uated for clear error. State v. 1004, (Utah.Ct.App.1994); P.2d 1009 State v. For the Wigmore, reasons Dean stated O’Neil, 694, prejudice 848 P.2d (Utah.Ct.App. 698-99 admitting that can flow from 1993); Taylor, 661, State v. 818 P.2d 568 evidence of crimes committed (Utah.Ct.App.1991). cases unusually prejudicial, Other have cited defendant can be rais- ing the traditional of “abuse discretion stan acute concerns of fundamental fairness Jamison, E.g., 134, arising dard.” State v. 767 P.2d irom possibility the real that the de- (Utah.Ct.App.1989). 137 Still presumed other cases fendant will for be convicted have stated that court is accorded bad character rather than his acts. Conse- discretion,” Teuscher, “broad v. quently, State 883 we will a trial examine court’s deci- 922, (Utah.Ct.App.1994), “good P.2d 926 very under sion Rule limited deference, Squire, deal discretion.” v. according relatively State 888 P.2d it a small de- 1102, (Utah.CtApp.1994). gree 1103 Our own discretion.3 do not We examine the difficult, It impossible, any suggest 3. is find real Justice seems to Russon's dissent that evidentiary rulings subject all difference Justice are an “abuse of between Chief Zimmerman’s grants discretion” standard review trial opin- statement of standard review in his discretion, judges broad abuse of which will not "concurring part” ion and the standard set out ruling "beyond be found is unless the the limits text above. He states standard is reasonability." position Russon’s Justice is recognizes "abuse of discretion” but that the trial Many evidentiary far too broad to be correct. findings must make certain subordinate rulings subject are to a narrower standard of necessarily judge's limit the trial discretion rulings review. Some reviewed for are correct- ruling admissibility on the crime evi- ness; subject to a limited some are discretion scope dence and therefore narrows of review standard broad and some to a discretion stan- appeal. opinion The instant states that the course, attempt dard. Of to differentiate judge's ruling only trial is entitled limited degrees any meaningful between of discretion in discretion or is deference. difficult to see way impossible quan- is discretion is not because practical difference between the two formula- Nevertheless, stating tifiable. standards different tions. degrees of discretion do describe a mind set and 490 novo, closely process, we "willreview we hold that de evidence of

issue justifications it presumed trial court’s when chooses crimes is to be inadmissible 404(b). that, it, admitting evidence under admit the trial court (1) necessity must find that is a there for the opportunity take this to com We also (2) highly proba- it is appropriate standard to be upon ment charged, tive of a material issue of the crime determining applied by the trial court special probativeness its and the ne- admissibility prior crime evidence. cessity outweigh for its effect. 1069, (Utah Johnson, P.2d 1075 State v. 748 above, As stated we will review the trial 1987), stated, give meaning we “To to the rulings closely court’s on these issues more 404(b), policy embodied in Rule evidence of ordinary rulings than on relevance and with reasonably necessary other crimes must be a limited deference. highly “probative of a material issue.” Dibello, v. P.2d holding Our State 780 (Utah

1221, 1989), provides 1229-30 also III. ADMISSIBILITY OF PRIOR guidance. in that The issue case was wheth CRIME EVIDENCE trial court erred in color er the principle The that evidence is not admissi photographs gruesome wounds on a vic ble to show a defendant’s bad character corpse. have “[W]e tim’s The Court stated: propensity to commit criminal acts is a fun categories of relevant evi held certain damental jurisprudence tenet of American propensity unfairly an dence have unusual recognized opin and has been in this Court’s inflame, jury. prejudice, or mislead the For See, ninety years. e.g., ions for over State v. reason, falling into these cate Emmett, (Utah 781, 1992); 839 P.2d 785-86 subject gories uniquely being used to (Utah Featherson, 424, v. State 781 P.2d 426 process distort the deliberative and skew a 1989); Johnson, 1069, State v. 748 P.2d 1075 Dibello, trial’s outcome.” P.2d at 780 (Utah 1987); Tarafa, 1368, State v. 720 P.2d reason, For that the Court held that (Utah 1986); Saunders, 1372 v. State 699 proponent of the evidence must show (Utah 738, 1985); Hug P.2d 741-42 v. State potential unfair does not 219, 220-21, 978, gins, 18 2d Utah 418 P.2d “outweigh probativeness.” its 780 P.2d at (1966); 243, Winget, 979 State v. 6 Utah 2d 1229; 1239, Lafferty, v. P.2d cf. 738, (1957); 245-47, id. at (Utah 1988); Cloud, 1256-57 State v. (Wade, J., concurring); 310 P.2d at 739-41 (Utah 1986); 752-55 State Gar Williams, 273, 277-84, State v. 36 Utah cia, (1909). P. dangers 252-54 underlying The rationale Dibello integrity fairness and of a trial that can flow support lends to our conclusion here. Prior prior from crime evidence are: crime evidence has inherent and unavoidable (1) over-strong tendency to believe Hence, inflammatory potential. general guilty charge merely the accused of the rule stated the first sentence of Rule likely person because he is a to do such 404(b) prior is that crime evidence is inad acts; it missible unless has a to relevance (2) charged by being probative tendency the crime of “mo to condemn not because tive, intent, opportunity, preparation, plan, guilty pres- the accused is believed of the knowledge, identity, charge or absence of or escaped mistake ent but because he has (both (1) integrity offenses; accident.”4 To unpunished assure the from other appellate approaches reviewing par- say evidentiary rulings subject influence to that all are to a Certainly, appellate single ticular issues. court review broad abuse of discretion standard. rulings general of on such different issues as relevance, rule, (in- hearsay categories the best evidence These are not exclusive. Prior cluding exceptions hearsay may specially the different crime evidence be used if relevant rule), (both privileges any charged. constitutional other- to material element of the crime wise), Tanner, (Utah may and foundation for scientific evidence State v. 675 P.2d 546-47 1983); vary Forsyth, from review for correctness to the broad State v. simply abuse of discretion. It is not correct to (2) represent principle undue B.J.L.’s and T.M.’s was not of prejudice;) bative of intent or motive for so- domizing A.W. Nor was the of injustice attacking of one necessari- probative T.M. opportunity B.J.L. and of his ly unprepared the at- to demonstrate that charged. commit crime It was uncon- (this repre- tacking is fabricated evidence that slept Dopor- troverted A.W. had over at principle surprise). sents the of unfair to’s house had been to his house on a Wigmore Wigmore, John H. on Evidence Hence, number of occasions. on evidence rev.1983) (Tillers (cross-refer- 58.2, § at 1215 opportunity wholly unnecessary because omitted). avoid, ences To or at least that fact was admitted. mitigate, dangers, these the rules of evidence toAs the trial court’s on reliance proscribe prior of crime evidence as use plan” exception, “common scheme or except circumstantial cir- narrow no there was evidence of common cumstances. plan beyond scheme or is common what 404(b) Rule states: virtually acts all of molestation. Some simi larity prior between behavior and the crime crimes, wrongs Evidence of acts is other or charged many is “common to assault and prove not of a admissible character rape peculiarly cases and is not distinctive of person in order show action in conformi- Featherson, [a] defendant’s conduct.” ty may, therewith. admis- be A prior P.2d at 428. loose of relevance bad purposes, proof sible for other such as of acts to a crime based unremarka motive, intent, opportunity, preparation, ble sufficiently similarities conduct is not plan, identity, knowledge, or absence justify Here, probative to its admission. mistake or accident. State and the trial court “‘[fell] into the Thus, although recidivism is characteristic equating common and circum error acts many criminals, types especially with re- merely stances which are similar nature crimes, spect to certain kinds of Rule with the more narrow common scheme or ” flatly prohibits prior evidence of crimes or Harris, plan.’ at 429 (quoting Id. wrongs prove person the character of a (1984)). Wash-App. in conformity order to “show action there- Furthermore, features the. Nevertheless, with.” such crime evidence relied on the State did not used purposes, proof “for other such as that an pursued tend to show unusu motive, intent, opportunity, plan, preparation, unique operand! al or modus in the identity, knowledge, or absence of mistake charged. Indeed, incidents and prove accident.” But relevant to such even nothing particular there was about the inci issues, meet must dent on trial for which First, certain it standards. must be neces- unique operan showed an unusual or modus sary; prove it used point cannot be ds The trial court asserted Second, really strongly contested. must be instances molestation were “similar to issue, probativeness of a material fondling each involve[d] showing as a cannot serve ruse for party and occurred while at a at intercourse the he propensity defendant’s is such that is grandmother’s the or at home Defendant’s likely to have committed the kind of crime visiting while were one of Defendant’s charged. “fondling” But children.” and “intercourse” justified many The are See Feath the admission common sex crimes. erson, Furthermore, Doporto’s crimes under P.2d at 428-29. Rule intent, “probative opportunity, plan, Doporto’s as fact assaults at that the occurred disagree. family motive.” T.M.’s a We B.J.L.’s and home or the home of close relative testimony probative probative beyond had no value has The crime little value. prohibited Doporto charged prior that in inference had some crimes occurred propensity places frequently such to commit such crimes and acted where crimes occur. addition, in In propensity. point accordance with that the court’s on that reliance physical maturity, that Do- ent levels of some of whom misplaced because B.J.L. testified is bribed, some, from his home to a secluded porto took her were threatened Moreover, spot all, in the mountains. of whom were related to him. time, having all those acts were remote only the evidence of other The element of occurred in 1980 and some thirteen remotely that tended to show crimes even years prior trial. seven plan operandi was T.M.’s unique or modus baby Doporto had oil on that used correctly This case is similar to a case that he had rubbed her. A.W. also stated Ap decided —we the Court believe — prior “baby thighs her sometime lotion” on (Utah.Ct. Cox, peals. 787 P.2d 4 uncommon, sodomizing That is not so her. App.1990), charged the defendant was with unique operan- modus as to show rape. Two women other than the victim endowing di rele- raped testified that the defendant had them vance. years prior charged two crime. Id. at prior features of the There are some following prosecution argued 6. The charged against Dopor- crime crimes and the similarities between the crimes and the crime common, to that are but those features are charged justified prior the admission of the many child abuse cases and also common to crime evidence: particular no value with re- have (1) victim; [Defendant knew each charged. spect to elements of the crime (2) defendant had noneonsensual inter- instance, argues that in each The dissent course, home, at each victim’s while the Doporto position authority his “abused boyfriends victims’ or husbands were not parent an adult and a to commit sexual acts home; That, course, correct; with a child.” is (3) began defendant was uninvited virtually every but it is also correct as to home; entering assaults soon after prosecuted. child abuse case argues taking advantage further (4) dissent victims; [lay] top defendant power position of his as an adult to commit (5) completely defendant did not remove the sex acts shows a “common motive and clothing clothing, his or the victims’ and in However, opportunity.” opportu- motive and instance, attempted each to kiss the victim Moreover, nity were not contested. there neck; on the face and motive, nothing Doporto’s opportuni- premises defendant left the after com- ty, operandi stamped sig- or modus pleting the assault. way nature on them in such a as to distin- Id. guish many them from child abuse cases. In short, weight real Featherson, Relying opinion on our showing propensity evidence went to at Appeals the Court of held that acts commit of child abuse rather than to crimes did not show a showing committed act design operandi by common or modus

charged. defendant because the similarities between

Furthermore, significant there were dis- acts and the crime were many rape similarities. A.W. did not claim that common to assault or cases and not, therefore, attempted “peculiarly had either threatened her or to were distinctive of Cox, bribe her —a factor all the other incidents. defendant’s conduct.” 787 P.2d at 6. addition, Likewise, allegations the manner which the of similar modus sig- operandi asserted assaults were carried out varied case are common to nificantly many from case. tak- A.W.’s B.J.L. was child molestation cases and are not location, “peculiarly en to a remote and neither distinctive of B.J.L. defendant’s con- Featherson, Doporto attempted nor T.M. claimed that duct.” 781 P.2d at 428. There- fore, presented by anal intercourse on them. The evidence of because the the showed, most, prior molestations at that Do- collateral witnesses of other crimes was not abuse, trial, porto perpetrated probative any had of different acts material fact at the locations, involving girls in various that differ- court erred evidence. potentially prior trial was com giving misconduct notice without to de- grounds. magnified addi promised on each of these fendant the unfairness tion, closing Any prosecution’s argument ceeding. Doporto the might defenses that jury specifically jury prepared days invited the make the have within the four between ruling on propensity the inference of criminal that the the motion in State’s limine and 404(b) prohibits. prosecutor The ar the trial would have Rule had account for all witnesses, Doporto likely involving separate that was more have four five gued inci- charged of his dents.5 committed the crime because open

propensity toward such behavior. Doporto, Even unfamiliar as he was with argument, ing prosecutor the asserted: procedure recog- the rules [i.e., think prior I their the two crime nized the unfairness of this dilemma. When testimony will that there’s witnesses’] show the State called B.J.L. the stand and she pattern predator be- abusive conduct story, objected: Doporto related her ing perpetrated perpetrated by was —that Objection. MR. DOPORTO: Doporto during period. Mr. that And that THE Right. your COURT: AH What is credence, believe, I will lend testi- objection, Doporto? Mr. mony gives you, that that was [A.W.] this talking MR. DOPORTO: We are about not one isolated incident with her. case, [A.W.] case—not [B.J.L.’s] am argument, closing Then in prosecutor I correct? again improper argument: made the same Well, THE COURT: you’re correct in that just Is this an incident that can be isolated this—what’s claimed the victim was [A.W.] explained away? you, [gentle- I submit to case, yes. in this men], that what we have here is a trail of just tears of little kids. is not [A.W.] why MR. [are] DOPORTO: Then we hav- that’s been victimized this man. It’s ing a trial for [B.J.L.]? victimized_ [B.J.L.] been [who’s] Finally, even if prior value, probative had minor some [T.M.], type And same of situation. Lit- ruling court’s under Rule of Utah Evidence Doporto. tle niece of Mr. He has the that effect the evidence opportunity advantage to take of her and substantially outweigh did not its does so on two occasions. Latter one in already noted, also value was incorrect. As Day, Labor I it believe was. prejudicial quality crime readily was apparent, severe and magnified and that was and seri- something He realized he could that do ously prosecutor’s closing exacerbated time; to her because that wasn’t the first argument likely defendant to have previously] had her [he molested back committed crime because he had July family when type. committed crimes of the same visiting. preju- The unavoidable conclusion Thus, argued Do- because dicial nature of the crime evidence far porto allegedly had sexual committed other value, outweighed legitimate probative its if crimes, likely to he was more have committed any, had. charged. arguments, Given these jury could have even well concluded that by itself, That conclusion not does Doporto guilty sexually if was not molest- however, require a A reversal. conviction A.W., escape ing unpunished he should will not reversed even there is error the “trail he of tears” had created. “prejudicial error is unless the the sense Moreover, allowing ruling the trial court’s is a likelihood that in there reasonable State to two as to its there have choose witnesses absence would been more diately testify record does not indicate when of witnesses it selected acts, alleged was in fact notified which witnesses would testi- that still would have left him fy. very adequate Even if the State had notified imme- time to little mount an defense. and the prior crime evidence admission of the v. the defendant.” State for result favorable thereon consti- arguments based prosecutor’s Johnson, P.2d require and a reversal prejudicial error tuted Doporto’s assess jury had to The trial. for a new and remand it credibility and decide whether and A.W.’s that the doubt beyond a believed reasonable APPEAL ISSUES ON IV. OTHER jury could The telling the truth. was victim telling the truth was that she have concluded that the trial court asserts also evidence, but we are without (1) by of other errors committed a number jury was wholly to conclude unable thereby depriv- indigent him finding not assessing by that evidence uninfluenced (2) counsel; depriving right to ing him of his credibility. We the victim’s defendant’s by failing to allow process him of due absent any that say assurance cannot interpreter” to com- provide him a “human of the evidence admission the erroneous (3) deficiency; failing hearing pensate for his evidence, the result would prior crime right to be him of his adequately to admonish the same. have been (4) allowing persons; by jury eight tried (5) misconduct; admitting “pro- prosecutorial heavy on “cor- places reliance The dissent (6) abuse; of child file” evidence of victims renders that asserts roborating evidence” appeal; inadequate record on providing an argues spe- The dissent any harmless. error jury panel taint- permitting the to be panties, in the victim’s cifically the stain that of these claims of by prejudice. Most ed (but was blood which it assumes which patently without merit are error are either were, been, may have been if it have not retrial; likely to on a not recur movement), and the vic- by caused a bowel on comment to avoid errors require few some that, changes consis- while tim’s behavioral remand. (but also with abuse tent with sexual sufficiently causes), was that error show the trial contends Defendant like- permit no reasonable inconsequential to indigent finding him not erred in best, At a different outcome. lihood of appointed counsel. therefore not entitled value, corroborating may have some monthly that his house The trial court found itself, conjunction with by or even monthly household hold income exceeded his compelling6 testimony, it is far from A.W.’s $1,641 $1,191 by for the relevant expenses harmless the to render and is not sufficient was court found defendant period. The by testimony given inflammatory highly on a indigent and had the resources B.J.L. and T.M. employ private counsel “practicable basis” sum, was a ability pro hardship his undue without case, and the part prosecution’s central and his of life for himself vide the necessities jury the argue prosecutor chose Vincent, family. the rule Under explicitly for- very the law inferences (Utah 1994), 283-85 bids, relevance. Even quite apart from its court did not err. probative value of were there argues Doporto also the elec beyond relevance that out- mere him an in headphones provided were tronic value of the weighed overcoming partial adequate means prosecutor’s argument would still have him to sum, hearing impairment and did not allow prejudicial. been erroneous and experiencing unusual dis- that A.W. was noticed comfort) physician called the State to comment A purported upon specifically bloodstain the date of these the source of did not link bleeding panties from a tear A.W.’s stated that spent night the time when A.W. discoveries to sodomy by an act of rectum could be caused home, physi- to a did not take A.W. at cian, simple commonly "a tear also caused but was from a bowel movement.” away. only panties The and threw physician also she had discovered evidence that what time, delay given a substantial stated that description a dark of it as fact blood was her pre- pinpoint physical examination could not probativeness of odor. The that had no stain Moreover, bleeding. aunt cise cause of such ambiguous at best. that evidence (and panties also in the discovered the who stain

495 typically that children do victims. He stated meaningfully in the participate hear and years Certainly, report failure to until a number of against him. not abuse ceedings hearing would adequate briefly assistance provide after it has occurred. He also related in absentia. trying Doporto equivalent changes to in children some common behavioral hearing that a part abused, loss is The unfortunate sexually particularly guilt, who are may not know what hearing-impaired person isolation, poor performance disrup- why no reason not hear. We see he does in school. Some of these fac- tive behavior to assist should not be allowed Doporto’s wife consistent with the behavior A.W. tors were trial, headphones, to if he has him at even after the summer of but Dr. exhibited complete awareness of the words assure his no that fact Ravesten made comment about whom, by especially when other spoken and His thus on direct examination.7 microphone. into the people speak fail to permissible bounds of Kallin. fell within the proceedings nature of The serious remanded for a new trial. Reversed and against requires him no less. complains partic Doporto also about DURHAM, J., concurs. by prosecutor made dur ular comments repre ing relating to his decision to J., HOWE, in concurs the result. qualify to as an sent himself and his failure Justice, ZIMMERMAN, concurring Chief degree preju indigent. It is unclear what part: engendered. comments seems dice these unlikely proceedings tainted the majority opinion except I concur with Nevertheless, agree any great degree. we part whether the as to its discussion IV and in that such comments were irrelevant depriving Doporto of an trial court erred should avoid draw appropriate. State hearing interpreter compensate for his on retrial. ing attention to these matters clarify deficiency. I write to the discus- also regard- II part of our case law sion

Finally, argues that the tri potentially preju- ing particular categories of permitted presentation of inadmissi al court evidence, application case dicial typical “profile” of a ble evidence of and the standard law in violation of our sexual molestation victim Rimmasch, admissibility of trial court of review for the P.2d ruling in v. State rulings on evidence. expert such Rimmasch held that show, on the basis opinion is inadmissible to I interpreter question, am Regarding the “profile,” that a victim of a child sexual abuse adequately that this issue was not of the view However, profile no in fact been abused. has necessary by parties and is not briefed Id. at 407. was offered this case. Accordingly, I of this case. the resolution Kallin, Moreover, it should be express opinion no as to how (Utah 1994), expert held that an witness resolved. was consis testify that a “victim’s behavior evidentiary question, I also write theOn symptoms might be exhibited tent with myself from separately to distance some abused,” sexually by as one who had been part by statements made Justice Stewart “testify long expert as the does There, suggests that he opinion. II of his such, profile [or that] kind of sexual abuse apply we should to a the standard of review dem symptoms manifested the victim regard- by a trial court determination sexually had been [the victim] onstrated ease, ing of “other crimes” the admission 141. In Dr. Ra- abused.” Id. at that accords “limited deference” is one to the nature of behavior vesten testified as agree that eharac- judge. I cannot with abuse frequently exhibited child sexual A.W., cross-examination, Dr. specifi- Ravesten did a direct reference Dr. Ravesten 7. On by discussing for main- apparent responded A.W.’smotives cally at- A.W.’s case. In an discuss himself, daughter friendship taining her tempt to elicit favorable willingness Doporto's sexually to return to home and her a child who had been asked if crime, pres- though Doporto was even "go after the back to the scene of the crime abused would obviously again again again.” ent. This was premised I I our ease law. think art’s articulation to be on what terization of appropriate appellate is still the “abuse of discretion” conclude is a view of the court’s However, my of review. difference primacy standard that is inconsistent with our in his articulation of the with Justice Stewart appropriate case law and with the allocation materially probably would not standard responsibility appellate between trial and a trial change how each of us would review courts.

court decision to admit the evidence here. The reason for this similar outcome is that RUSSON, Justice, dissenting: Dibello, the we articulated under standard respectfully agree I I dissent. cannot with relied, upon and the cases which where majority that trial court the the erred category being pre- evidence falls into the admitting of the other two unfairly sumptively prejudicial, as does girls only in this evidence case. Not was this evidence, crime we have shifted the burden 404(b) admissible under rule of the Utah admissibility. presumption against is Evidence, probative Rules of its value the admission of such evidence under rule outweighed rule its effect under rightly pre- Stewart finds that 403. Justice 403. sumption Having with rule consistent presumption of unfair shifted the rulings The trial court’s on the admissibili- against prior sought to be ty of an evidence are reviewed under “abuse 404(b), heavy admitted under rule burden Hamilton, v. discretion” standard. State evidence, placed proponents on the is (Utah 1992). 232, 827 P.2d 239 Under this fairly specific court and the trial must make standard, an we will not find abuse of discre- findings to show the burden has been tion unless the trial court’s determination appeal, I met. On would characterize the “beyond reasonability.” the limits of Id. discretion, standard of review as abuse of However, today majority at 240. enunci- it is in other instances of the admission of standard, ates a new one for all intents which However, evidence. because Dibello and its purposes eliminates the trial court’s dis- predecessors, today’s decision in the area judgment cretion and substitutes this court’s have such erected admissibility as to the of evidence under rule high barriers to the admission of evidence 404(b). presumptively prejudicial,

which we consider in order to avoid the conclusion that the trial 404(b) Reviewing a trial court’s determina- court abused its discretion in such nondiscretionary tions under such standard evidence, all “i”s must be and all dotted “t”s important policy of review contravenes con- may Operatively, produce crossed. siderations which underscore the need for a same result as Justice Stewart’s articulation evidentiary trial court’s broad discretion in However, tighter of a standard of review. I rulings. recently We have affirmed the trial important think there is a fundamental and relevancy court’s discretion under rule 403 difference. Barker, determinations. Harline v. (Utah 1996); Troyer, 441 v. State 910 cases, Under the Dibello line of we make it (Utah 1995); Pena, law, clear that as a matter of while certain Rule 403 categories presumptively of evidence are un- balancing a similar involves test to that em- fairly prejudicial, judge is the one 404(b) ployed the trial court in a rule primarily responsible making for the evalua- determination. Under both rule proponent tion of whether the of the evidence weigh ap- rule the trial court must presumption. has overcome that Under Jus- articulation, propriate factors and determine whether impor- tice Stewart’s the relative outweighed value of the evidence is judgment tance of trial court’s about potential prejudice. for The trial ap- those factors seems diminished and the pellate position appel- in a than agree court’s enhanced. I cannot better although with this articulation late court to make such a determination. because subtle, judge trial difference is not often “The decision of the is accorded outcome, great duce a I expo- different find Justice Stew- deference because his firsthand familiarity Finally, applying sure to all the evidence and his rather than its new rule child, proceedings past of the trial to evidence of sexual of a with the course are abuse case, majority which is at in this issue qualifications the best available evaluat- new, opportunity apply takes the its non- ing proper in its the value of falling deferential standard all evidence § context.” Am.Jur.2d Evidence under the I (1994) (footnote omitted) category. “other crimes” cannot (discussing Fed. agree new, imposition with the of a nondefer- 404(b)). R.Evid. ential such category standard on a broad However, adopted by under standard encompassed by evidence as that the consid- majority, evidentiary court’s de- eration of “other crimes” under rule upon familiarity termination based its 404(b). case, In this we should be consider- proceedings scope and the of evidence ing trial whether the court its abused discre- granted longer appropriate will no be an in question. tion in evidence deference, but, rather, majori- amount of I would hold the trial court did not ty insists that this court should make deter- determining in abuse its discretion admissibility of minations as to evidence involving similarities between the incidents 404(b) only upon under rule based the record B.J.L. involving and T.M. the incident Appellate judges relying only before it. on a testimony A.W. were sufficient to render re- good written record are seldom in as of a lating to the other incidents admissible under position judge determining in as a trial 404(b) opportunity rule to or show motive. admissibility why of evidence. is This Tecca, 168, Accord State v. 220 Mont. judges in have been afforded discretion this (“While acts area. were not to identical the offense committed case, similarity in this there sufficient to Furthermore, majority mischaraeter- admission.”). sustain In each of the instanc- 404(b). plain language izes the of rule The to, case, es testified as well in as A.W.’s majority states, general “[T]he rule stated Doporto position authority abused his as the first of Rule is that sentence adult parent an and a to sexual commit acts crime evidence is inadmissible unless it has a awith child. Each incident involved sexual charged by relevance the crime young abuse bn a female victim with whom ‘motive, being probative of opportunity, in- Doporto’s contact arose out of social a event tent, plan, knowledge, preparation, identity, ” family. Doporto with the In both the inci- or or absence of mistake accident.’ Howev- by dents testified to B.J.L. the incident er, 404(b) actually the first sentence of rule A.W., Doporto attested to had come into states, crimes, wrongs “Evidence other or with victim victim contact when the came prove acts is not admissible the character Doporto’s daughters Dopor- to visit one of at person of a in order to show action con- Likewise, home. to’s the incidents attested added.) formity (Emphasis therewith.” The Doporto T.M. occurred when came into may, rule “It be continues: admis- family gath- with at a contact T.M. purposes, sible proof such as Thus, incident, ering. Doporto’s each motive, intent, opportunity, preparation, plan, presence parent put him in as an adult identity, knowledge, or absence of mistake or position authority respect with to the added.) identity.” (Emphasis quar- I do not incident, girls, each took ad- presumption rel with the rule’s inadmissi- vantage position to commit sexual acts bility respect of other crimes’ point clearly with them. facts to a These However, proving character. the rule opportunity, common motive and and it can- that, plainly provides purposes, for other in- not be said abused its cluding plan opportunity, such evidence concluding. discretion so may many be admissible. Just how friends visiting Moreover, would have to molested testimony be while B.J.L. and daughter majority man’s prove identity before the would be T.M. was relevant may perpetrator against convinced that evidence of such abuse the crime A.W. design opportunity? Although be prove relevant to the trial court did not state that the Featherson, testimony dant in its absence.” State v. was relevant show girls’ two 1989). (Utah available affirm identity, we Deseelhorst, ground. v.White Viewing light in a most favor- 1994). (Utah Other than A.W.’s own verdict, jury’s it cannot said able to the testimony, present- the State uncontroverted girls’ that the trial court’s admission of the sexually showing that A.W. was ed evidence error, testimony under rule even was any eyewitness provide but did abused verdict. The such that undermined the testimony girls testimony. of the two presented strong and circum- State direct sexually similar abused under were evidence of the crime committed stantial by Doporto served to corrobo- circumstances testimony upon A.W.’s that she was A.W. and, accordingly, was rate A.W.’s sexually by Doporto uneontro- abused clearly and admissible to show iden- relevant Further, jury presented verted. tity. had, fact, with evidence that A.W. been addition, value of the two sexually aunt testified that abused. A.W.’s outweighed by girls’ was not incident, subsequent alleged she dis- Doporto under rule 403. covering the crotch of covered black stain (Utah Shickles, 1988), 760 P.2d 291 panties got that when into A.W.’s A.W. adopted several factors to assist this court bath, it for her water. hurt to sit weighing trial court in the evidence under expert An for the State testified that a child These factors include rule 403. anally raped by an who was adult would tear, likely experience a rectal that the tear strength of evidence as to the “the bleed, would that dried blood could look crime, of the other the similar- commission black, very pain- and that the tear would be crimes, the interval of ities between the ful. A.W.’s mother testified A.W.’s be- crimes, elapsed time that has between changed shortly alleged havior inci- after efficacy of the need for the school, experienced difficulty dent: A.W. degree proof, and the to which alternative change appearance, wanted to her name and probably jury will the evidence rouse adults, particularly men. and withdrew from hostility.” overmastering short, provided ample the State Cleary, (quoting E. Id. at 295-96 McCormick testimony outside of the of the two other (3d 1984)). § ed. on Evidence at girls such that no likeli- there is reasonable above, First, as discussed the incidents testi- hood that the results would have been more by sufficiently fied to B.J.L. and T.M. were testimony. favorable to without that by similar to the incident attested A.W. to Therefore, Second, I would conclude that the trial admissibility. support their two of its in admit- court did abuse discretion the three incidents attested to the other victims, ting the of the other two girls years occurred within one and two case, and in the admission of such evi- Third, the incident attested to A.W. jury dence did not undermine the verdict girls’ testimony necessary to cor- overwhelming because of the evidence to testimony, roborate A.W.’s as the State support it. Therefore, eyewitnesses. I vided no would hold that trial court did not abuse its admitting

discretion in

B.J.L. and T.M. under rule 403.

Even the trial court did err girls’ testimony

the two under rule

error will not result reversal unless the Hamilton,

error is harmful. See 827 P.2d at error, “In order to constitute reversible sufficiently complained

the error of must be

prejudicial that there likeli- reasonable

hood of a more favorable result for the defen-

Case Details

Case Name: State v. Doporto

Court Name: Utah Supreme Court

Date Published: Jan 17, 1997

Citation: 935 P.2d 484

Docket Number: 940014

Court Abbreviation: Utah