State v. Kooyman

evidentiary without an cannot be decided

hearing.

CONCLUSION First, ruling wе vacate our on Substi- motion to parties tute Petitioner’s substitute improvidently granted. as That motion is Second, hereby April denied. hearing improperly, held and action hearing taken in is void. said granting motion trial court erred Mother’s summary judgment because the trial for light court viewed the evidence most moving party favorable and there were disputed material facts.

¶28 Accordingly, we reverse and remand this matter to the trial court for further

proceedings opinion.9 consistent with this '

¶ 29 H. WE CONCUR: NORMAN ORME, K. JACKSON GREGORY Judges. Utah, Appellee,

STATE of Plaintiff and Anthony KOOYMAN, Michael Appellant. Defendant and No. 20030255-CA. Appeals Court Utah. May 2005. Rehearing Denied June 2005. By remanding, imply except compelling 9. we no unfavorable treat- humed for the most of rea- public policy leaving (footnote omitted)). However, ment of the buried bod- policy sons.” Moyer, ies undisturbed. See In re Estate has to be considered in relation to the facts be (Utah 1978) (stating ... "[i]t 110-11 receiving found the trial court after policy a sound and well-established law parties. and evidence from the buried, person, once should not be ex- Bradshaw, C. Brown Bradshaw

James Moffat, City, Anderson & Lake Salt Ketehum, Parnés, Idaho, Appel- for Andrew lant. Shurtleff, General, Attorney

Mark L. and Dupaix, Attorney Laura B. Assistant Gener- al, City, Appellee. Lake Salt DAVIS, JACKSON, Judges Before and THORNE.

OPINION

THORNE, Judge: Kooyman Anthony appeals 1 Michael from his conviction for Forcible Sexual Abuse, felony, in degree a second violation of (1999). Code section 76-5-404 Utah

BACKGROUND

¶2 Early morning in the of March L.S., female, single forty-one-year-old memory of where awoke with no she doing previ- been or what she had been evening ous after about seven o’clock. Al- though feeling ill—a condition that she was rising, after and to caused her to vomit soon experience diarrhea and nose bleeds throughout day was certain she had —she large amount of alcohol. not consumed inventory physical took a moment to her She state, nip- her quickly and determined that genitals ples were sore and her were swollen sign her of recent painful, and a sure activity. her sexual This concerned because relationship, in a she was neither- involved promiscuous. she As she considered nor was from the the events that she could remember by evening, a sudden previous she was struck memory, memory. In the she was dissonant client, Mi- standing in the bedroom of her Kooyman, holding her head chael and he was charged arrested with the forc- forcing spot to look at a wet on the man was her ible abuse of L.S. you’ve sexual saying, I know what done. bed “Oh you’ve you at what know where been. Look trial, During presented the State Later, rape called the crisis cen- did.” L.S. expert testimony and the testimonies of both following day counseling, and the she ter for L.S., daughter, her аnd detectives Richards reported that she contacted the objected portions and Lambert. by Kooyman. raped had been experts The from each witness. GHB, ketamine, testified to the effects of 26, 2001, police March officers exe- 3 On drugs,” opined “rave scene other home. cuted a search warrant description physical L.S.’s of her state was they knocks, When no one answered their expected similar to the effects caused and found forced entrance drugs. some of these L.S. testified she to dress and was shower. He was allowed house cleaner who had been executive living then handcuffed and led to the room referred to October Although placed he was in a chair. where friend, incidentally who had warned L.S. Richards, charge, the detective in detective jerk.” Kooy- “pretty much a the other officers that no one was informed part man told her he was owner of a question Kooyman, talk one of the to or prominent company, local construction any guns officers asked he had taking job, that no he had duties. After Kooyman in the home. answered the affir- sought day Kooyman to find a L.S. guns mative and told the officer where the home, would not be at because when he was Kooyman were located in the house. was sexually chargеd there his comments were virtually ignored began ques- then until he frequently and unwelcome. would en- She in tioning one of the detectives the room paraphernalia, counter sexual women’s lin- in- about the reasons for the search and gerie, rope, cleaning, and handcuffs while willing formed the detective that he was to Kooyman approach regularly and would her Richards, cooperate. The detective retrieved photographs ask her to out” and “check some who arrived and removed the handcuffs from compromising he had taken of in women Kooyman wrists. When asked sexual, quasi-sexual, During situations. home, why police in Richards were exchanges, Kooyman of surrepti- one these they seeking Richards answered that were tiously picture took a of with his L.S. wrist- Kooyman drugs.” cooperatively “rave scene watch, picture and to her as it showed help police stated that he would find the appeared computer. on his then, drugs, any explanation, but he without ¶ 6 L.S. also testified that she learned of asked “who is this about.” Richards told him who, Kooyman, of the existence GHB from L.S., investigating rape that he was of house, cleaning after she started his warned prompted Kooyman which to exclaim “I away any her not to throw water bottles * * my finger.” didn’t f* her. used they might because contain his “G.” L.S. punctuated gesture, He his statement with a had, Kooyman further testified that on sever- apparently attempting to demonstrate what occasions, GHB, al offered her but that she he had done. every refused time. further testified She Thanksgiving day while at a search, During police found L.S.’s by L.S., party hosted told her that clothing clothing and shoes. Some of the his water bottle contained GHB and he of- taking L.S. remembered off she had when guest. Through it at fered to least one other changed Kooyman’s, clothes at but she had Kooyman, through association her with and memory removing por- little or no other house, cleaning Kooy- his L.S. learned The tions. also seized heavily man was involved in the rave scene. sheets, semen; negative which tested for sev- However, when he invited her attend rave bottles, negative eral water which tested him, consistently parties with L.S. refused. drugs; photographs and GHB other rave undress; day women various states of and L.S. testified about the pieces paraphernalia. several of rave the sexual assault. She arrived at margaritas, morning, expect- made additional in the house at about 10:30 pick leaving liquor up He then went to the store to gone or to be soon. two ing him to be home, ready premixed margaritas. Upon for more getting at bottles was still return, school, p.m., disaр- his seven was began to clean. He cautioned about he so L.S. pointed to learn that his friend and away throw a water bottle both L.S. not to her left, because it contained GHB. had to leave. The friend then L.S. was on the table belongings for her when he made such a collected her and walked toward As was normal groggy front took the bottle and stored it door where she became request, she noon, Kooyman began thing At about to lose consciousness. The next the kitchen. bed, go waking aware of in her garage his car out of the she was own backed . school, clothing, at three a.m. the next but he miscalculated the distance be- different day. Kooyman offering her his car and hers and collided with She remembered tween mother, car, cigarette, though her a which she took even disabling it. He then called smoke, agent, forcing truck to take she does not his insurance and tow repair shop. spot He then her to look at the wet on the Her car to a and L.S. bed. L.S.’s testimony agency unequivocal car obtain a car drove to a rental that, being repaired. car amount of alcohol she had consumed for L.S. while her They Kooyman’s home at while the amount drove back to with she afternoon, they enough consumed was not to have about 3:30 in the where wait- equally cаused her to out. She was ed for the tow truck and the insurance ad- black juster unequivocal in her that she did not to arrive. to, to, and would not have consent consented wait, During acquaintance activity Kooyman. sexual Jo, Kooyman’s, a woman named Bonnie ar- A.C., -daughter, her to as his 10 L.S.’s testified that rived. described L.S. twice, gives “comes me her mother called her once to inform “afternoon tail” who L.S., jobs.” explained to after her that she would be home -at about seven blow He also dinner, early, p.m. again then once informing Bonnie Jo that she was that to make p.m. call that did get he “didn’t a chance to rub one out” and about seven L.S. not —a making. couple that tries “to masturbate a times a remember A.C. testified that L.S. he call, Kooyman during day.” It unclear left sounded normal the second is whether Jo, why he entertained Bonnie she could not recall L.S. had called. L.S. alone while ended, However, call testified that. Bonnie Jo left after before the but L.S. left, Kooyman phone took the from L.S. and invited A.C. an hour. After she

about dinner, buy for a drink. declined and offered to L.S. an offer she de- over She good he “take care of He then made drinks for both of then told her would clined. anything they drinking, mom.” did not hear margaritas. [her] As were A.C. them — p.m., from her mother until 8:30 adjuster and the tow truck arrived and further in the rented сar. arrangements concerning ear were when L.S. arrived home all L.S.’s time, perceived to be “a p.m. At that A.C. L.S. completed at around six Because hour, sloppy” her little and “not normal.” late called and canceled next L.S. cleaning appointment, scheduled scheduled testimony 11 The also offered the p.m., daughter called to tell

for seven her Lambert, Richards and both of of detectives be soon to make dinner. her she would home Kooy- were involved in the search of whom extent, and, drink, the investi- finishing Kooy- man’s home to some 9 As her L.S. Lambert, Kooyman’s objection over gation. and invited him over. man called a friend irrelevant, permit that his testified would L.S. then asked general, that GHB change pairs of about the “rave scene” into one of several ‍‌​‌‌​‌‌‌​‌‌‌​‌​‌‌‌​‌‌​​​‌‌​‌​‌‌​​​​​​‌‌‌​​‌​​​​‌‍her drugs are associated with the jeans hung agreed, in his closet. He so and ketamine that scene,” room, many of the items pants, “rave and that to his shed her sweat she went However, Kooyman’s house are items com- jeans. left all found in put on some she monly the “rave scene.” clothing By time she associated with of her other on. returned, that the found rave arrived. Lambert testified friend had sticks, suspended in favor

beads, for rave on—which the court glow advertisements events, term, one-year jail for-time and business cards businesses of a with credit testified, served, stage parties. thirty-six probationary rave He also and a month Kooyman’s continuing objection, about over fired his trial term-—and a fine. He then photo at the scene. counsel, the contents of a taken who counsel and retained new photo containing images He described the as promptly filed a motion for a new trial based beads, panties, anal [and of “women’s sexual part on a claim of ineffective assistance testified, Rich- He also as did condom].” hearing trial court held a on counsel. The search, ards, police found during ultimately the motion and denied the motion. photos of women. several nude appeals. now about his interview 12 Richards testified L.S., executing and about the search AND ISSUES STANDARDS He' detailed warrant on home. OF REVIEW1 highlighted what was found and the state- ¶ Kooyman argues that the trial during made ments admitting court erred certain evidence search, including his exclamation that he did poorly on character. reflected his * * penetrated “f* her” but he “ reviewing a trial decision to ‘When court’s digitally. Both officers testified that no L.S. 404(b), apply evidence rule we admit under found at the scene. GHB was an abuse of discretion standard.’” State testify, it was his turn 13 When Holbert, 426,¶ 24, 2002 UT 61 P.3d 291 L.S.’s, testimony largely agreed with man’s Widdison, 60,¶ (quoting State v. but his version differed from hers on сertain 1278). Similarly, we review trial critical details. He testified that after his court’s decision that1 evidence is relevant to he,and left, p.m., friend at about seven L.S. determine whether the court has exceeded There, went into his bedroom. she took off permitted range its of discretion. See State breasts, her shirt to him her took off show Harrison, (Utah Ct.App. pants, unzipped pants. fur- her He 1991) (stating “a trial court has discre broad ther testified that she fondled him and that proffered tion to determine whether placed she took his hands and them her relevant, in a and we will find error rele crotch, proceeded after which he to fondle vancy ruling only if the trial court has abused digitally penetrate All of this her and her. discretion”). “Additionally, its an erroneous consent, only was not with her but at her evidentiary ruling will lead to reversal interaction, Following direction. this brief if, error, absent there is a reasonable bed, dressed, got up got L.S. from the a more likelihood there would have been pleasant day, thanked for a favorable result for the defendant.” Id. at offering attempting He ever left. denied 780-81. GHB, any give having and he L.S. denied day in on the assault. GHB the house ¶ Kooyman argues 16 next that his evidence, performed ineffectively, hearing counsel 14 After all of the refusing grant that the trial court erred in jury convicted of onе count of forc- trial on a trial court sexual abuse. He was sentenced to new this basis. “When ible years pris- previously in assis- serve between one and fifteen has ruled on ineffective briefly suggests perpetra- and that was the 1. The dissent committed may corpus tor. conviction be tainted delecti However, although Kooyman present- problem. Similarly, the dissent concludes that court, corpus argument ed a delecti to the trial man’s conviction should be set aside due to the rejected, subsequently prejudicial which was he makes no effect of the cumulative errors that Therefore, First, argument inappropri- during such here. it is made occurred trial. foray subject argument appeal, ate for us into this matter. no such and therefore that Second, Moreover, argument presented, properly even is not before this court. issue testimony, opposed corpus in this delecti is overcome L.S.'s as case, to the dissent's conclusions which, although it did not contain details we have concluded that no harmful error itself, trial; thus, enough during the assault contained occurred the doctrine has suggest application a crime had been information to. no here.

1259 claim, pres purpose, such as those enumer the issues raised noncharacter counsel tance оf 404(b), admissibility contin fact.” State ated rule its questions of law and in ent mixed (Utah 351, gent upon satisfying requirements of Ct.App. P.2d Snyder, v. 1993). such, rules 402 and 403 of the Utah Rules of to the trial court’s As we defer Houskeeper, Evidence.. See State v. only if conclude reversing them we findings, 404(b) 118,¶28, (discussing erroneous, 62 P.3d 444 rule clearly but review its they are we noting that the enumerated list is not for correctness. See State legal conclusions ¶¶ Decorso, 1997) exhaustive); (Utah 681, 1999 UT 57 at 685-86 Taylor, v. 20-23, (discussing application 993 P.2d 837 Kooyman argues 404(b)). rule denying court erred in his motion the trial “ ¶21 Kooyman first attacks much of grant or trial. decision to ‘[T]he for a new testimony, arguing that it L.S.’s was intro deny a new trial is a matter of discretion solely person duced to show that he was a the trial court and will not be reversed with disagree. poor character. We The State a clear abuse of that discretion.’” absent clearly testimony proper offered L.S.’s for a (Utah Smith, v. 776 P.2d Ct. State purpose though even some or all of the chal (alteration (quoting App.1989) original) testimony lenged painted charac (Utah Williams, 220, 222 extent, light. great ter in a bad To a L.S.’s 1985)). relationship focused on her nature and the of his behavior ANALYSIS during relationship. toward her The tes ¶ Kooyman argues that the trial court timony only highlighted Kooyman’s de admitting certain evidence that erred sexually charged sire to enmesh L.S. in his character; unfavorably reflect on his could (which might provide world on its own insuf representation that his trial counsel’s evidence), grounds it ficient to admit the ineffective; and that the trial court erred clearly ongoing also established L.S.’s denying his motion for a new trial. We rejection Thus, of his consistent overtures. in turn. examine each claim Kooy- the evidence was relevant to refute Martinez, man’s defense. consent Cf. Admissibility I. of Evidence (Colo.Ct.App.2001) (stating ¶ Kooyman challenges the trial court’s refuting a consent defense is a valid evidence, arguing decision to admit certain act un purpose to admit bad 404(b) Letienne, 404(b)); People that the evidence violated rule der rule see also 33453409, *1, Although Rules of Evidence. we share Utah no. 1999 WL regarding (Mich.Ct.App. *2 Mich.App: some of concerns LEXIS 1999) evidence, (“Because challenged nonetheless affirm we in this case defen- Mar. misconduct, charged the trial court’s decision.2 with sexual daht was by defen prior inappropriate sexual behavior ¶20 404(b), although considered a Rule complainant admissi dant toward the inclusion, prohibits the introduction of rule of citation, (quotations, and alteration ble.” acts, crimes, wrongs or commit- evidence of omitted)). impugn person’s that person ted a 404(b); testimony 22 The was also relevant. The R. Evid. see character. See Utah consеnt, Decorso, 24, 57,¶ key dispute was with of the case also 404(b) only Kooyman arguing that L.S. not consent- (stating that rule is “an P.2d 837 act, instigator. The was the inclusionary regard rule with to other crimes ed to relevant to show proper, is offered for a non- evidence not evidence which intent, If, however, tendency to make but it had a purpose”). so called character man’s that never have con- proper offered for a L.S.’s claim she would character evidence is instance, setting charged.” v. examining testimony, State crimef] factual McPherson, of the 2. For after L.S.'s 504, 734, implicating rule we conclude that instead of 266 Neb. 668 N.W.2d Evidence, 404(b) (Neb.2003). of it is better of the Utah Rules as "relevant evidence that forms the described (Utah Ct.App.1996) (discussing knowledge as Kooyman’s proba- “more overtures

sented appropriate-noncharacter without the an reason to admit been] ... than it would [have ble evidence). 401; prior see State bad act evidence.” Utah R. Evid. also 1270, Landers, v. 115 N.M. directly rele 25 The evidence also is (“[W]e (N.M.Ct.App.1992) believe the vant to the facts of this case. L.S. testified ... disposition’ exception ‘lewd and lascivious enough not consume alcohol to that she did justified determining is whether Yet, drunk, let alone to black out. as she be complaining witness is acts with the attempted to leave she became admissible, though exception of the even use dizzy groggy, sat the couch and be situations.”). justified may not in other be limbed, heavy and then blacked out. came ¶23 Furthermore, explain probative na The GHB evidence relevant to testimony challenged was not how L.S.’s blackout could have been caused ture of the substantially outweighed by prejudicial potential that its and the description Kooy- blackout-inducing effect. Absent L.S.’s source substance. GHB, history man’s with which we deal with Although the evidence conduct, next, none of as de Kooyman’s previous involvement with GHB L.S., anything illegal. scribed featured certainly prejudicial, and raves was that does Instead, testimony painted portrait of her a per inadmissibility. In not result its se relationship Kooyman, attempts her stead, “[r]ule we note that like [r]ule sexually charge relationship, that the com 404(b), ‘inclusionary’ at is rule.” Id. ments, actions, and artifacts that he used to (citation omitted); see also v. United States so, rejection at do and her of his constant (10th Cir.2001). 1306, 1315 Magleby, 241 F.3d point At assertion tempts. no was there “ ‘presumes The rule the admission of all engaged had in nonconsensual except relevant evidence where the evidence activity prior sexual to March In 2001. propensity unfairly preju has “an unusual fact, jury a have inferred frоm the could' ” dice, inflame, jury.’ Ra mislead” the life was filled with mirez, (quoting 924 P.2d at 369 State willing participants, and it could have used (Utah 1993) Dunn, 1221-22 testimony. impeach that information to L.S.’s (other omitted)). words, In citation other jury accept The fact that the chose to L.S.’s “[ejvidence unfairly prejudicial simply is not story analysis, does not and we alter party’s it because is detrimental to a case.” therefore conclude that the trial court did Magleby, 241 F.3d at 1315. evi Whether admitting abuse its discretion the testimo unfairly prejudicial dence is decision Landers, 1275; ny. P.2d at see See also normally left to the discretion óf the trial (Utah Ramos, court, and we will not reverse the decision Ct.App.1994) (acknowledging that defendants absent a determination court may open the door to otherwise inadmissible In has exceeded discretion. See id. they put other crimes evidence when issue case, probative highly the evidence was subject for which other crimes evidence is of, Kooyman’s knowledge experience admissible). with, apparently and his atti GHB cavalier ¶24 Similarly, Kooyman’s challenges tude towards its use or misuse. In its ab sence, connecting to the GHB and rave evidence is not there was no evidence State’s clearly suspected well taken. The State introduced this cause of L.S.’s Therefore, proper purpоse: the trial court evidence for noncharacter blackout. admitted record, knowledge Having it. examined the we cannot to show effects, GHB, say uses and had access to that the decision exceeded the bounds of GHB’s Consequently, it to trial court’s and had offered L.S. before the assault. discretion. Ramirez, State v. 924 P.2d 369 we affirm the trial court’s decision.3 See admissibility Kooyman brought Thanksgiving analysis 3. Our of the of the GHB GHB to L.S.'s and, equally and rave evidence holds admissibility true for the party possibly, and offered it to the witness witness, who, State's of the rebuttal to L.S. testimony, Kooyman's in contrast to testified that

1261 “ a claim of prevail ‘To on ineffective evidentiary ar fective. final 27 counsel[, by Kooyman] must estab- phrase or word used assistance of one concerns gument A.C., minor, (1) testimony. performance counsel’s lish that his trial during her. A.C. (2) “deficient,” her if she “preju- asked that he was that testified ‍‌​‌‌​‌‌‌​‌‌‌​‌​‌‌‌​‌‌​​​‌‌​‌​‌‌​​​​​​‌‌‌​​‌​​​​‌‍” for a at his house join her mother wanted to the ineffective assistance.’ State diced” argues that A.C.’s tes Wallace, 295,¶ 22, App “cocktail.” v. 2002 UT highly her alcohol was timony Visser, that he offered App v. 2001 UT (quoting State irrelevant, have and it should (additional prejudicial, 215,¶ 14, citation 31 P.3d 584 been excluded. omitted)). correct Assuming that is ¶30 Kooyman argues that his first should not have been that the statement failing sup in to move to trial counsel errеd admitted, agree that its admission we do not press the statement made error. Under rule 30 to reversible amounts in the search of officers who were involved Procedure, Rules of Criminal of the Utah a defendant has the his home. “[B]ecause error, defect, irregularity or variance “[a]ny test, meeting parts of the ... burden of both rights of not affect the substantial

which does unnecessary apply court to both it is for this rule has disregarded.” This party shall be inquiry parts [the where our reveals in- applied to circumstances previously been prong] not satisfied.” v. prejudice State act erroneously admitted bad volving 102,¶ 9, App 90 P.3d 644 Wright, 2004 UT Featherson, evidence, P.2d see State (alteration original) (quotations in and cita (Utah 1989), nothing that and we see omitted). Moreover, it is well estab tions Kooy- application here. preclude its would “ counsel’s failure ‘to make lished in- charged with a sexual offense man was objections which would be futile motions or testified volving illegal substance. L.S. not constitute ineffective assis raised does attempted to involve regularly that he had ” Wallace, 295 at tance.’ escapades, and that his in sexual her Whittle, (quoting extremely transpar- were attempts to do so 52). 96,¶ 34, UT Furthermore, Kooyman admitted that ent. preju- previously experimented Kooyman argues with GHB. that he he had evidence, probability sup- we see no failure to move to diced counsel’s Given comment, later contradict- single police because officers press that A.C.’s his statement testimony, any materi- by Kooyman’s rights. ed him of his Miranda failed advise rights.4 substantial impact predicated al on on of this claim is Success showing at the time he made the man Assistance of Counsel II. Ineffective (1) (2) statement, custody, in he was “ ‘subjected custody, he was ¶29 while he was failing to Kooyman argues that or its functional express questioning to either his statement suppress move to ” Hayes, 860 P.2d equivalent.’ failing to searching his home and in officers (Utah (quoting Rhode Is- Ct.App.1993) jurors to instruct request the court 291, 300, Innis, 100 S.Ct. land v. 446 U.S. activities separate the evidence of his sexual (1980)). The State L.S., 64 L.Ed.2d 297 was inef- involving his trial counsel thus, accept assertion we do not the dissent's argues erred in that the trial court 4. The dissent However, (1) 404(b) admitting findings it evidence because are insufficient. (2) reasoning, determining a full record of its failed to make court be faced with should the trial during future, element at issue 404(b) was the consent admissibility evidence in nothing light did to shed trial and the evidence preserving greater its urge care in we it to take element, (3) was inad- reasoning. disagree. We character evidence. missible Moreover, agree simply with the we do not Although some of the dissеnt's con- we share admissibility dissent’s view 404(b) regarding trial court’s limited record cerns evidence, properly feel that it was findings, that these concerns we do not believe Kooyman's highlight the nature admitted decision to admit the evidence. are fatal to its relationship likelihood that she with L.S. and the during explanation, provided trial court's The result- sexual contact that did not consent to the trial, provide us the motion for new trial and charges. ed these decision; basis to review the with a sufficient thus, custody findings; at the tual we not it. that was should consider concedes disagree position, time he the statement. See State We with the State’s made 271,¶ Riggs, App Kooyman’s po- 987 P.2d 1281 1999 UT instead address the merits of (addressing only the defendant’s whether sition. “product interrogation” statement was the ¶ Although the timeline the after the state conceded that the defendant Kooyman’s order of encounters with the offi- Therefore, solely custody). we focus was cers is unclear from the record —and the trial Kooyman’s on whether statement was findings concerning court made no the or- interrogat express questioning result of appears Kooyman’s representa- der —it not, suppress If it a motion to ion.5 arguably supported tion is at least in the futile, would have been first Thus, purpose record. for the of this discus- argument ineffеctive assistance fails. sion, questions we assume that the concern- purposes, 32 For Miranda an en ing presence weapons in the home police officer and a citizen counter between occurred discussion with interrogation

will found to involve when it be Richards, involves dispute There no soon after part words or actions on the police officers entered house to (other police normally than those attendant warrant, ap- execute the search he was custody) police to arrest proached by an officer who twice asked him reasonably likely should know are to elicit any weapons whether there were in the incriminating response from the sus- home, so, where. answered pect. portion The latter of this definition affirmative, in the and told the officer where primarily upon perceptions focuses weapons could be as- found. suspect, than rather the intent of the “express questions” serts that once were police_But, police surely since the can- asked, subjected he was to custodial interro- not be held for the unforesee- accountable and, gation in the absence of Miranda warn- actions, able results of their words or ings, any gained following information interrogation definition of can extend initial suppressed. encounter must be We part police to words or actions on the ’of disagree. they officers that should have known were reasonably likely incriminating to elicit an Supreme 36 As stated response. Innis, Court in Rhode Island v. 446 U.S. Innis, 301-02, U.S. S.Ct. 100. (1980), 100 S.Ct. 64 L.Ed.2d 297 (footnotes omitted); Riggs, see also State v. an encounter is considered to be an interro 271,¶¶ 15-17, 987 P.2d 1281 gation “any if an officer ac uses words or (examining whether defendant’s state (other normally tions ... than those attend express questioning ment was the result custody) police ant to arrest and equivalent). or its reasonably likely know should are to elicit an matter, incriminating response suspect.” 33 As a threshold we must first from the Therefore, Kooyman’s argument address that Miranda Id. at S.Ct. 1682. if a triggered prior questions to his discussion with officer’s or comments are Kooyman’s argument “normally custody” Detective Richards. ... attendant or are “reasonably likely centers on an earlier encounter between him- not to elicit an incrimina Richards, ting response,” warnings self and an other than officer the Miranda are which, asserts, required. the trial court failed Id. at 100 S.Ct. 1682. concluding interroga- Consequently, any to address in that no statement made de argues tion had occurred. The State fendant under these is consid circumstances voluntary has failed to assail the court’s fae- ered and untainted. See id. at Kooyman wisely custody tutionally require 5. [a] concedes that the reasonable to citizen to improper. generally Michigan not mers, See v. Sum- remain while officers of the law execute a valid 692, 705, 2587; 452 U.S. 101 S.Ct. home"). warrant search his (1981) (concluding L.Ed.2d 340 that "it is consti-

1263 301-02, Here, custody during 1682. after examin- dant 100 S.Ct. the execution of a record, and under the circumstances ing the while waiting search warrant and for the case, of we conclude that the officer’s warrant, this “pres arrival of a second about the weap- the questions presence about of brief house”); ence and location of firearms in the implicate home did not ons in the Miranda. Pender, Or.App. 559, 63, State v. 181 47 P.3d (2002) (observing 64 police that a officer’s ¶ As the officer who asked the about questions presence about the and location of testified, presence weapons discovery of the weapons during the execution of an arrest usually of weapons is first concern when “ noncriminal, warrant ‘served a noninvesti- in serving a search warrant. Rather than gatory purpose’ ‘designed and was not to questions terrogation, the officer’s focused on ” (citation incriminatory elicit an response’ safety everyone ensuring security the and of omitted)); Elk, Spotted 109 Wash. on and not on premises, the elicitation (2001) 253, 906, Indeed, App. (stating incriminating view evidence. as we record, investigatory pur “police may question rational a “[n]o the ask of a defen (1) pose prompted question could have such a prior warnings dant to Miranda al premises about which were question [officers] solely purpose for the of officer or to, to, ready (2) authorized intended and did public safety, and the circumstances are Nor is there search. indication of devi sufficiently urgent to warrant an immediate by intent to achieve an [officers] ous question”). Ruffin, But see United v. States * by investigatory masquerading end means as 04-CR-048-S, 6, 1447815, no. 2004 WL at security measures.” United States v. Castel (W.D. 11901, 2004 U.S. Dist. LEXIS at *18 lano, 325, (5th Cir.1974). As 500 F.2d 2004) 21, (finding Wise. June that an officer’s further stated Fifth Circuit Court question concerning “guns drugs” after find Appeals, “[w]e ourselves unable to con arresting the defendant to “custo amounted demn, the fact grounds after on of some and interrogation”). dial delicacy, prophylactic such mild measures ¶ Here, Kooyman unquestionably reasonably safety calculated to ensure the custody. Yet possibility existed that he officers, suspect, and others on might have to a weapon, access or have a as well.” Id. scene weapon enough near to it his location that ¶ Moreover, if we were to conclude that posed searching police a thrеat offi- inquiry into the officer’s the existence and Accordingly, we cers. decline to view the likely location of firearms was to questions about officer’s the existence information, incriminating elicit we see noth- weapons Kooy- triggering location of alone as ing question a precluding conclusion that the focus, instead, rights man’s Miranda custody.” attendant “normally to ... encounter between Rich- 1682; Innis, 446 U.S. at see 100 S.Ct. ards. Cunningham, Or.App. also State (2002) “by (stating ¶40 being placed custody After questions normally expressly excepting at- residence, Kooyman to the search of his custody to arrest and from its defini- tendant speak charge, to the officer in Rich asked interrogation, tion of im- [Innis ] Court ards, concerning the reason for the search. plied questions normally that some attendant arrived, Kooyman expressed When Richards custody may reasonably to arrest and also be cooperate, desire to he asked what the information”). likely incriminating to elicit It looking provided for. officers were Richards practice police is common officers to ask copy search warrant presence weapons in other cus- about police told-Kooyman hoped what the to find contexts, and the is not todial rationale search, re through the and that the searсh application setting. its stretched then asked what L.S. Baroni, lated L.S. Fed.Appx. United States Cf. (2001) of, whereupon him he learned had accused (concluding that the defen- him rape. had accused rights Miranda not violated that L.S. dant’s were * * asked, “I immediately officer the defen- stated didn’t f* her. when while my finger.”6 Contrary answering question used about [the defendant’s] handcuffs”); argument appeal, man’s on we conclude that Douglas, v. United States volunteered, (10th 93-2256, 1106, his statement was that it was no. 36 F.3d at 1106 Cir. interrogation,” 1994) during not made “custodial (finding no Miranda violation because consequently, right and that his to receive a exchange the defendant “initiated the warning Miranda was not violated. which in the incrimi [the detective] resulted statements”). Therefore, nating we have no Kooy- 41 It is clear from the record that difficulty concluding in ‍‌​‌‌​‌‌‌​‌‌‌​‌​‌‌‌​‌‌​​​‌‌​‌​‌‌​​​​​​‌‌‌​​‌​​​​‌‍that state man initiated the contact with-Richards and product interrogation, ment was not merely responding that Richards was to by Kooyman. but rather was volunteered Kooyman’s inquiries. Kooyman was not be See, Thieret, 526, e.g., Andersen v. F.2d 903 influences, ing subjected compelling psy “to (7th Cir.1990) terms, (“By 532 its own Mi chological ploys, questioning.” or direct Ari apply randa not does to volunteered state Mauro, 520, 529, v. zona 481 U.S. 107 S.Ct. ments[.]”); 640, Dudley, v. 264 Kan. 1931, (1987), 95 L.Ed.2d 458 He was not (1998) 445, (“Where, here, 957 P.2d 448 as L.S., committing against accused of the crime suspect requests on his own initiative an interpret- nor can we Richard’s as comments statement, opportunity give to a it cannot be equivalent” express ques the “functional response product said to be either a to or the Innis, tioning. Island v. 446 Rhode U.S. actions.”). of the officer’s words or 291, 301, 1682, 100 S.Ct. 64 L.Ed.2d 297 (1980). Instead, Kooyman’s statement was interrogation, 42 In the absence of only uttered after Richards answered one of there no Miranda violation and Kooyman’s questions. Additionally, Kooy- attempt by suppress trial counsel to presented nothing man has us with that statement would have been futile. Accord would lead us to conclude that Richards ingly, Kooyman’s first ineffective assistance by answering Kooy- should that have known argument of counsel fails. See State v. Wal questions man’s there was reasonable like lace, 295,¶ 22, App 2002 UT 55 P.3d 1147. lihood that he would have elicited an incrimi nating response Kooyman. Nothing Kooyman from argues 43 next knew, suggests failing the record trial request Richards counsel erred in to know, limiting had reason to would instruction the character information, respond any way, let give introduced at trial. trial “[W]e way incriminating alone making he did. counsel wide latitude in tactical deci Innis, 302, 446 at question U.S. 100 S.Ct. 1682 sions and will not such decisions Cf. (finding interrogation no when the record did unless support there is no reasonable basis “suggest not ing (quotations officеrs were aware them.” at Id. 31 and cita respondent particularly suscep omitted); that the Burger tions see Kemp, also v. 483 conscience”); 776, 794, appeal 3114, tible to an to his United U.S. 97 S.Ct. L.Ed.2d 638 (1987) Salas, (“We 99^4002, v. States no. 98-4226 and ‘strategic have decided that (10 283, 1999) 283, (finding F.3d Cir. no choices made complete after less than inves interrogation “merely tigation when the officer was precisely are reasonable to the ex- earlier, Kooyman cogent 6. argument concerning Kooy- As we stated was asked about attenuation presence weapons custody after he was in subsequent police, man's statements to the see court, and the search commenced. The trial Carson, United States 793 F.2d having testimony, apparently heard this deter- (10th Cir.1986) (discussing analytical methods questions mined that the earlier did not alter its purging evidence of the taint that results from subjected conclusion that had not been method), illegal gathering we decline to exam- interrogation, equivalent, or its at the time he issue, analysis ine this and instead our focus inculpatory uttered his statement. If we assume the first encounter between Rich- questioning Kooyman that the earlier violated Montoya, ards. See State v. Miranda, principles has not (Utah Ct.App.1997) (declining to address issues why shown this violation carried over to court); properly presented not to this see also voluntary police. man’s later statements to the Richins, 36,¶¶ 7-8, State v. Therefore, we address whether (declining issues that have address subjected express questioning equiv- or its preserved). been alent when he asked to see Richards. Absent (cid:127) they think work professional judgments instructions because reasonable tent that ” you.” investigation.’ against limitations on support Washington, 466 U.S. (quoting Strickland ¶45 Clearly, counsel considered 690-91, 80 L.Ed.2d 104 S.Ct. instruction, but, limiting possibility of a 5,¶ (1984))); Montoya, 2004 UT upon experience perception and his based that, examining (stating when instructions, value of such he chose to claims, of counsel we ineffective assistance forego attempting to submit such an instruc- “ ‘strong presumption that begin with the jury. Even if we assume —an tion range falls within the wide counsel’s conduct certainly assumption that is debatable —that assistance; professional of reasonable may choice have contributed to an “counsel’s is[,] pre the defendant must overcome the outcome, say [his we cannot undesired circumstances, that, sumption under the necessarily range of fell outside the decision] might considered sound challenged action be professional reasonable assistance.” Monto- ”) (alteration strategy' original) (quot in trial Therefore, we con- ya, 2004 UT 5 at 26. (Utah 182,186 Temрlin, P.2d ing v. State Kooyman’s trial was clude that counsel not 1990)). Therefore, event that we con in the ineffective.' amounted to clude that counsel’s decision tactics, strategy regard or reasonable trial III. The Trial Court’s Denial outcome, decision will less of the counsel’s Kooyman’s Motion for See, qualify as ineffective assistance. a New Trial 348,¶ 58, e.g., Bradley, v. State ¶46 Kooyman argues that 57 P.3d 1139. denying in for a trial court erred his motion Kooyman produced new trial after sufficient hearing pur 44 At the conducted evidence to demonstrate that the victim had trial, Kooyman’s for a motion new suant perjured herself at trial and of misconduct on Kooyman’s trial present counsel called part prosecutor. by all counsel. Trial counsel was examined generally per- for new trial [A] motion concerning forego parties his decision correcting madé mitted errors in instruction on the “character” .evidence court, reviewing trial or for a conviction response, at trial. In trial counsel troduced by or unlawful obtained unfair methods. stated: Utah, may grant a motion In a trial court practice I don’t ask for [a You know as a justice if for new trial “in the interest of instruction, maybe limiting] now that’s impropriety which there is error bad, maybe practice a I good, that’s as upon adverse effеct had a substantial n case, in this I don’t do it. I didn’t do it rights party.” of a given limiting a aware court [the was had] (Utah Owens, the evidence came which instruction when 24(a) P. Ct.App.1988) (quoting Utah R.Crim. crucial, I didn’t ask for it. I deem and so omitted)). (other citations my practice. But that’s Police A. Statement to the “[a]nd the trial court later asked When ¶47 argues a new further instruc- you didn’t ask for a reason failed decision?,” warranted because trial council trial was tion was a tactical to disclose to trial counsel my practice.” responded “[t]hat’s rights a advised of his Miranda by Kooyman’s “if riot been [the asked when counsel ' claim, in this timely To succeed contemporaneously] fashion. jury instructed wasn’t] (1) admission, failed show that the State must evidence’s] character [the by 16 of required rule limiting to furnish information you likely to ask for a would be more Procedure, time,” see State re- the Rules of Criminal trial council instruction (Utah 1989), Larson, “[m]aybe, maybe not. I’ve never sponded (2) of a instructions, “a reasonable likelihood that there is [limiting] so biga fan of been pro know, had the State have, outcome you I more favorable” say that I would can’t Hopkins, the information. State v. mean, just big limiting fan of vided not a I’m 98,¶ 22, during trial. (quotations 989 P.2d 1065 available either before or UT omitted). and citations United States v. did not file her suit until after L.S. Cf. Cir.2000) (10th Maynard, Consequently, had been convicted. 236 F.3d (stating showing prejudice requirement to the man’s evidence satisfies the first “absent defendant, However, prosecutorial although misconduct alone for a new trial. L.S.’s support finding will not that the trial court lawsuit filed after was conviction entered, (quotations possibility abused its discretion” and cita lawsuit was Gabaldon, omitted)); fully tion explained United States v. understood (10th Cir.1996) that, (stating jury. testimony, During F.3d L.S.’s she allegation prosecutorial of an questioned prosecution context both the misconduct we conclude that the conduct contact “[i]f counsel improper, attorney, we then evaluate it with her civil and on the likelihood whether reversal”); filing warrants United States West of her a civil suit. While it is true that over, 02-40012-01-SAC, yet no. 2003 WL L.S. testified she had not decided *1, lawsuit, at 2003 U.S. Dist. LEXIS file a she never denied that (D.Kan. 2003) (“Reversal possibility at *3 March existed. Because it is clear that necessary only if improper jury possibility conduct influ was informed of the verdict.”). may by greed enced the L.S. have been motivated assault, Kooyman when she accused of the ¶ accepted Kooyman’s argu- if 48 Even we we conclude that L.S.’s decision to file the prosecutor obligated ment that provides grounds support suit insufficient surrounding disclose circumstances the motion for a trial new and we affirm the utterance, Kooyman’s argument his still fails. trial court’s denial of the motion. discussed, previously Kooyman As voluntari- ly statement, made the and it was not the CONCLUSION Therefore, product interrogation. no ¶ chance exists that the trial court would have 50 The trial court did not err in its suppressed Consequently, the statement. evidentiary rulings Kooyman’s Kooyman cannot demonstrate the existence acts, or, made, if an error it was of “a of a reasonable more favor- likelihood Kooyman’s harmless. trial counsel was not outcome, proves a failure that fatal to ineffective, able” Kooyman’s and statements to the argument. voluntary were in nature. denying Kooyman’s trial court did not err in n Subsequent

B. The Civil Suit prosecutor motion for a trial. The new did failing ¶ not commit misconduct in to disclose Finally, Kooyman argues surrounding Kooyman’s the circumstances denying the trial court erred in statement, possibility might and the that L.S. motion for a new trial victim a after the filed against Kooyman fully file a civil suit against Kooyman. civil suit presence jury. discussed in the of the legal applied The standard to be when considering a a motion for new trial based ¶ Kooyman’s Accordingly, we affirm newly discovered evidence is threefold: conviction for one count of forcible sexual grounds In order to constitute for new abuse. “ ‘(1) trial the (cid:127) (cid:127) (cid:127) evidence be such must diligence as could not with have reasonable ¶ 52 I H. CONCUR: NORMAN trial; produced been at the discovered JACKSON, Judge. (2) (3) merely cumulative; ... not [and] be DAVIS, Judge (dissenting). ... be such as to render a different result ” probable on the retrial of the case.’ respectfully disagree 53 I I dissent. with Martin, 34,¶ 45, 44 opinion’s P.3d 805 the lead conclusion that the trial (alterations original) (quoting court’s decision to admit certain evidence did James, (Utah 1991) (other 404(b) not violate rule of the Utah Rules of omitted)). Here, addition, unchallenged disagree citation it is In I Evidence. with the Kooyman’s Kooyman’s “new evidence” was not trial court’s decision to allow ad- drinking. By p.m., all is- were 6:00 Finally, I Sabien believe evidence. mission into car taken concerning Sabien’s had been by the trial court were sues errors committed away. car towed right trial. care of and her had been Kooyman’s to fair prejudicial time, Kooyman saw a friend reverse and remand Near this Accordingly, I would same Kooyman called trial. his drive a new .house. over to.the house for a and invited him him drink, THE EVIDENCE I. OF arrived, SUMMARY Kooyman’s friend When Sa- n change into asked she could bien presented at the evidence believe women’s,jeans that she had pair of seen three when divided into is best viewed Kooyman’s agreed, so Sa- closet. (A) evidence, clearly admissible categories: changed that she out of her bien testified (C) admission, (B) sweatpants, which she claimed were “hot 404(b) rule Kooyman objected to under pair jeans. At some dirty,” and into a evidence). (the bad acts point while friend was Clearly Evidence house, A. Admissible had anoth- and Sabien both margarita tequila. and a shot of er cleaning Laura Sabien1 was margaritas again that he made these testified day alleged inci- house on the man’s margaritas and premixed from a bottle of accidentally dent, hit her car when tequila to each drink. added a half-shot car, inoperable! making her car his own car, Kooyman hitting called After Sabien’s friend While Sabien agent arranged for a tow his insurance liquor talking, Kooyman drove to the were Kooyman ear. also pick up truck to Sabien’s pre- with two bottles of store and returned agency car and to rental drove Sabien that, at margaritas. Sabien testified mixed car for her. After obtain- a rental obtained Kooyman’s friend point, both she and that car, Kooyman and Sabien ing the rental both Kooyman they that needed to leave. told for Kooyman’s house to wait back to drove forward, Kooy- Sabien’s and point From this adjuster to the insurance the tow truck and testimony concerning the events man’s arrive. evening that differ. ¶ buy Kooyman Sabien din- offered n glass testified that she drank 59 Sabien waiting, but Sabien the two were ner while water, belongings, her and head- collected Although Sabien declined declined the offer. dinner, that agreed front door. Sabien testified for she ed for the offer Kooyman sitting on him. then made remembers have a drink with she' next door, himself and Sabien. the front margarita trying for both to reach for couch that he made these drinks Kooyman testified front door because could not reach the but margaritas and premixed from a bottle that heavy. testified her arms felt Sabien tequila to drink. a half-shot of each added Kooyman giving ciga- aher she remembered n her next point, cancelled couch, At some Sabien sitting on the while she was rette appointment and also cleaning scheduled placing a second that she did not remember A.C., daughter, to let A.C. know her called daughter. .testified call to her Sabien phone Kooyman having a with that she was drink showing Kooyman next remembered that she one would be home about and that she on spot about one foot diameter her a wet hour, some as to ask A.C. to take as well his Sa- upper right-hand corner of bed. refrigerator to finish pork chops out of the consent, and that she did not testified bien thawing. to, any sexual con- not have consented would that she Kooyman. testified tact with Sabien adjuster and the tow 57 The insurance anything point after Kooyman did not remember truck arrived sometime while pro- day, Kooyman's she authorized him evidentiary hearing mo- Sabien on that 1. At the on trial, Kooyman. against The at- that she met a new Sabien testified ceed with a civil suit tion for day attorney complaint on the late in the afternoon torney with her filed a then testified that he jury's guilty been verdict had returned. The following commencing week. the suit the meeting .attorney during his testified that manner, spring sloppy rolls in a which was until she awoke on her own couch 3:00 following morning. a.m. testified that she abnormal Sabien. A.C. took a testified that after then shower. A.C. 60 After the trial court admitted shower, getting out of the Sabien was still on admission, Kooyman, on the other of his cooking phone with someone and was still hand, into his bed- testified that Sabien went spring that rolls. A.C. testified Sabien clothes, edge on the room to retrieve her sat approximate- her if dinner asked she wanted bed, Kooyman and took off her shirt. ly ten times that she declined Sabien’s him testified that Sabien showed her breasts that she offer each time. A.C. testified after they that were “not bad for a and stated bed, got up some time later and went she [forty-]year old.” testified that Sa- sitting eating. on couch Sabien was pants, unzipped fly took her bien next off cross-examination, On testified that Sa- A.C. pants, оf his and licked his handled during their conversations bien coherent genitalia. testified that Sabien evening, talking that did not have trouble crotch, placed his hand on her her he rubbed phone evening, stagger- that and was not crotch, finger and he inserted his into her ing falling around the house. A.C. also vagina. also testified that all of nothing testified that there was about Sa- this sexual contact was consensual. night bien’s behavior that that concerned her man then testified Sabien stated daughter. as Sabien’s get she needed to home to cook dinner for (cid:127) daughter, great night, him her thanked for a 63 Sabien also testified she contact- following and said she would call him the lawyer ed a after was arrested and day. they possibility admitted that discussed the filing against Kooy- of Sabien a civil lawsuit ¶ 61 further did Sabien testified she “may man. Sabien also testified she have” .night not remember how she home the got attorney told the was some- incident, alleged or whether she cooked principals how related to the of a successful spoke daughter get- dinner or with her after construction business based Salt Lake ting night. home that Sabien that, testified City. awakening morning after on the couch the incident, alleged after she took a shower Kooyman’s B. Admission nipples and noticed that her were sore to the ¶ stinging touch and that she had a sensatiоn testimony, prior 64 After.Sabien’s to her, vagina. Sabien testified that she also Kooyman’s testimony, Detective Richards vomited, diarrhea, bloody had a had police executing testified that while the were incident, day alleged nose. The after the home, Kooyman’s the search warrant on contacted a rape Sabien crisis center. The Kooyman inquiring for about reason day, following police. she contacted the search. Detective Richards testified that . Kooyman they investigat- he told were ¶ 62 A.C. testified that she received two Sabien, ing rape of to which phone night calls from Sabien on the replied, my “I didn’t f— her. I used alleged testimony incident. A.C.’s about the fingers.” Kooyman’s objection, Over Detec- phone agreed first call with Sabien’s testimo- testify tive Richards was allowed to about ny during about that call. testified that A.C. this admission. call, phone the second which Sabien testified making, she did not not remember A.C. did ,C. The Bad Acts Evidence anything notice unusual and that Sabien “normal” sounded and “fine.” A.C. testified 65 The bad acts evidence can be sub- ended, phone categories. that after the second she call divided three The first into couch, asleep category concerning soon fell on the but was awak- consists of evidence by closing, Kooyman’s ened possession sound of a сar door interest in sex and items, entry sexually including which was followed Sabien’s of related Sa- through testimony the front door their house. A.C. bien’s had often that, home, getting pictures per- testified after her naked Sabien shown women acts; that, phone forming testimony made a call and started to cook some sex Sabien’s defendant, house, against Kooyman’s she cleaning while evidence crime, i.e., underwear; a a prove the occurrence of must toys women’s sex seen delicti.”). Accordingly, I believe that testimony corpus had a Sabien’s pur- was inadmissible Bonnie admission sexually explicit ‍‌​‌‌​‌‌‌​‌‌‌​‌​‌‌‌​‌‌​​​‌‌​‌​‌‌​​​​​​‌‌‌​​‌​​​​‌‍conversation .with presence; corpus Detective delicti rule.3 France in Sabien’s suant to Jo testimony that in his search Richards’s Acts, “[hjundreds, he found Kooyman’s home B. The Bad Evidence “very sexually explicit thousands” opinion’s disagree I with the lead con- women various sexual photographs of that the trial court’s decision to admit clusion acts”; De- performing positions, sexual acts evidence did not violate rule the bad testimony about tective Lambert’s 404(b). searching while he had seen items First, that the trial court’s believe house, un- which included women’s man’s adequate an record of its failure to make beads,” condom, derwear, a “sexual anal acts was a decision to admit the bad evidence Not- sexually explicit photographs. clear abuse of discretion. withstanding fact that the found [rjule 404(b) under Admission evidence home, second no GHB of discretion. How- is reviewed abuse evidence category consists of ever, prior admission of crimes scene, including party and the rave GHB scrupulously examined itself must be GHB, testimony about Detective Lambert’s judges proper in the exercise of that scene, that cer- party about the rave words, In other failure of a discretion. found in house tain items he scrupulous ex- trial court undertake the rave both GHB and were related to amination in connection with the admission scene; testimony of a wit- party and the 'of bad act evidence constitutes Kooyman had of- who claimed that ness abuse of discretion. during Thanksgiv- him GHB Sabien’s fered category consists of ing party. The third Webster, 238,¶ 11, UT omitted). had asked A.C.’s (quotations, and citations minor, her, if she wanted while she was record, my it review of the 69 From join up so she could her pick though court resolved appears as the .trial Kooyman and Sabien for “cocktail” Kooyman’s objections not all —of most —if evening of the al- Kooyman’s house on the in-chambers, during an the bad acts evidence leged incident. part of pretrial meeting that was not made Moreover, I to find unable the record. II. ANALYSIS any attempt by the trial court “undertake in scrupulous examination connection with a Kooyman’s A. Admission of’ the acts Id. the admission bad evidence.4 ¶ view, my present not 66 In the State did in this of the trial court’s failure Because satisfy corpus delicti enough evidence to admit regard, I that its decision to believe rule, in of which was effect time acts evidence was a clear abuse the bad Johnson, v. 821 trial.2 See State See id. discretion. (“The (Utah 1991) 1150, corpus 1162 P.2d ¶ Moreover, acts I believe that bad 70 rule states that before defendant’s delicti 404(b). inadmissible under rule as evidence was inculpatory statements can be introduced admission of evidence Although Supreme the trial court's erroneous Court has over 2. the Utah convictions). rule, corpus v. Mauch of his delicti see State turned 477, 10,¶ 46, do ley, 67 P.3d it did not 2003 UT Kooyman's trial and conviction. so until after explain attempt deci- did its 4.The trial court during its admit the bad acts evidence sion to Kooyman's trial. ruling motion for a new erroneously admitted evi- 3. The of this effect However, hardly my opinion, effort was testify in Kooyman's decision to is dence on Russum, with the "scrupulous connection examination in 107 clear from the record. Cf. (1944) evidence. State (holding of” the bad acts that the admission Webster, Utah 238,¶ 32 P.3d 976. prejudiced by right 2001 UT to a fair trial was defendant’s opinion сorrectly recognizes, prove only proclivity rule As the lead the defendant’s to com- 404(b) charged.” mit the crime Id. precludes evidence of other bad acts ¶ part under the third of this purpose imply if defendant its sole is to test, evidence, relevant, “[ajlthough may ... that the defendant has bad and a character probative if be excluded its value is substan- disposition charged to commit the offense. tially outweighed by danger of unfair conjunction This rule works in with rules issues, prejudice, confusion of the or mislead- 402 and 403 to ensure that a is defendant ing jury, considerations of undue only convicted because he committed the time, delay, presentation waste of or needless

.charged jury offense not because the of cumulative R. evidence.” Utah Evid. 403. is convinced of his cumulative bad behav- “Although presumption rule 403 contains a ior. evidence, admissibility evidence has unusually strong propensity unfairly 118,¶24, Houskeeper, 2002 UT inflame, prejudice, jury 444; 404(b). or mislead a will be 402, 403, see Utah R. Evid. Kell, deemed inadmissible.” State v. determining In whether evidence is admissi- 106,¶30, (quotations UT 61 P.3d 1019 404(b), under rule a “trial ble court must omitted). (1) citation being determine whether such evidence is proper, purpose offered for a noncharacter ¶74 stated, previously As the bad acts (2) 404(b), under whether such evidence catego- can be evidence subdivided into three (3) requirements meets the of rule (1) concerning ries: in- evidence require- whether this evidence meets the possession sexually terest in sex and relat- Decorso, ments of rule 403.” State v. items; (2) concerning ed evidence GHB 57,¶ 20, UT 993 P.2d 837. (3) party scene; the rave and A.C.’s testimo- test, part ny Kooymañ’s 71 Under the first of this “the I “cocktail” offer. proponent must demonstrate that categories the evi- will deal with each of these actually being proper, dence is offered for a turn. purpose, noncharacter specifi- such as those First,. I believe con- 404(b). Decorso, cally in” listed rule 1999 cerning Kooyman’s pos- interest in sex and ¶ 21, UT 57 at “If P.2d 837. the court sexually session of related items inad- is, proceed resolves that it then it must 404(b). pursuant Initially, missible to rule I analysis. However, the remainder of the important think parties it is note both the court determines that the evidence is agreed only disputed consent was the being only offered to show the defendant’s charged element of the crime this case.5 crime, propensity- to commit it then is inad- backdrop, I With as do not believe that point.” missible and must be excluded at that the evidence was offered for a noncharacter

Id. 404(b), purpose required by as rule in- Under, test, part Kooyman’s “pro- second of 'this stead was offered to show evidence, Decorso, is if it pensity admissible is relevant. to commit crime.” “[Ejvidence See Utah R. Evid. 402. is rele- 57 at 837. am unable to see ‘any tendency vant if it has sexually to make the how interest sex or consequence existence of fact that any bearing related items had on the exis- prob- alleged determination of the action more tence of Sábien’s consent to the inci- dent, probable agree able or less than it with- I opin- would be and do not with the lead ” Fedorowicz, “clearly out the evidence.’ State v. ion’s statement this evidence 32, 67,¶ (quoting ongoing 2002 UT 52 P.3d 1194 Utah established Sabien’s and consistent 401). “Further, rejection [Kooymanj’s R. Evid. if my even otherwise of In overtures.” 401, showed, most, opinion, relevant as defined rule is evidence this evidence at sex, irrelevant and inadmissible under rule 402 if had an in extreme interest nothing the evidence is material and to did to demonstrate that he was relevant However, (Utah recognize by pleading guilty, Kooy- Ct.App.1994). 5. I opening their in statements, every placed charged parties man element of the crime both asserted that consent Teuscher, jury at issue. See State v. 883 P.2d 927 was the issue for the to decide.

1271 unfairly usually strong propensity preju- sex. in noneonsensual to interested somehow Kell, inflame, addition, dice, jury.” not believe that this evi- or mislead [the] In I do ¶ 30, prove whether Sabien (quotations relevant 2002 106 at 61 1019 dence was UT P.3d omitted). alleged Utah to the incident. See consented and citation Instead, sexually the related R. Evid. 402. ¶ Finally, I believe 77 that A.C.’s evidence, directly was never related which concerning the “cocktail” was inadmissible consent, seemed the of Sabien’s existence 404(b). I under rule cannot conceive [Kooy- prove only and relevant “material possible purpose noncharacter for which this crime proclivity to commit the man’s] evidence was offered. See Utah R. Evid. ¶ Fedorowicz, 2002 UT 67 at charged.” 404(b). Further, way this in evidence is no importantly, and most 52 P.3d 1194. only disputed in relevant issue the probative I of this evidence believe the value case—the existence Sabien’s consent to outweighed danger substantially by the was alleged the incident. See Utah R. Evid. 402. R. Evid. 403. prejudice. of unfair See Utah proba- Lastly, virtually this evidence no any marginal value my opinion, probative In and, time, high at the tive value same in sex evidence of interest prejudice. unfair R. danger of See Utah clearly items out- sexually related was view, my exactly In Evid. 403. this is “unusually strong propensity weighed by the type tendency evidence of bad acts that has inflame, unfairly prejudice, or mislead inflame, unfairly prejudice, “to or mislead ¶ Kell, jury,” 2002 UT at 106 [the] Kell, ¶30, jury.” 106 at [the] UT omitted), partic- citation (quotations omitted).6 (quotations and citation case, Kooyman was ularly in this where charged a sex-based crime. with reasons, 78 For these I believe that the Second, I believe that the evidence admitting trial court abused its discretion in party and the rave scene GHB acts evidence.7 the bad 404(b). under Even inadmissible rule opinion I correct in that the lead is assume Prejudice C. concluding that this evidence was relevant only do I trial 79 Not believe that the 402, I would conclude that it was under rule a series harmful errors court committed purpose under not offered for a noncharacter evidence, by admitting pieces I also these 404(b). 404(b). R. In rule See Utah Evid. effect of these believe that cumulative my view, “only [Kooy- it was offered to show magnified their harm to errors to commit crime.” Decor propensity man’s] prejudiced right to fair trial. See State so, The 57 at 993 P.2d 837. Colwell, 8,¶ 44, P.2d 177 UT fact no GHB was ever discovered (stating appropriate that reversal under Kooyman’s house and fact that there “only if cumulative error doctrine ingested proof no that Sabien ever direct of the cumulative effect several errors under night alleged GHB of the incident on the ... a fair trial was mines our confidence addition, I this conclusion. In underscores (alteration original) (quotations had” probative valuе of this evi believe that the omitted)); Webster, 2001 citations clearly outweighed by danger dence (“[A]n 238,¶ errone UT prejudice. See Utah R. Evid. 403. unfair to admit or evidence view, ‍‌​‌‌​‌‌‌​‌‌‌​‌​‌‌‌​‌‌​​​‌‌​‌​‌‌​​​​​​‌‌‌​​‌​​​​‌‍allowing ous decision exclude jury In to hear my unless not ... result reversible error Kooyman’s prior experiences does about (first orig scene, harmful.” party error is alteration with and the rave GHB omitted)). inal) In (quotations an un- citations ha[d] court admitted “evidence that conclusion, upon opinion's it follows that disagree 6. the lead conclusion 7. Based that, testimony concerning error court to even if it was for the trial bad acts evidence, the should be disre- admit this error acts was elicited after the bad evidence—which garded pursuant Utah Rules of to rule very deemed evidence was admissible—would I do believe that Criminal Procedure. likely have been elicited at all. never viewed, it is of this evidence can be as admission opinion, in admis- the lead isolation from the acts evidence. sion of the remainder bad addition, opinion I believe that the lead sets a the errors committed the trial court were dangerous precedent extremely prejudicial Kooyman’s that could be right to a fair trial. Accordingly, harmful to criminal defendants in future I would reverse and remand for cases. a new trial.

III. CONCLUSION summary, 80 In I believe that pursuant admission was inadmissible corpus delicti rule. also believe that the trial court in admitting abused its discretion

the bad acts evidence. I believe that

Case Details

Case Name: State v. Kooyman

Court Name: Court of Appeals of Utah

Date Published: May 19, 2005

Citation: 112 P.3d 1252

Docket Number: 20030255-CA

Court Abbreviation: Utah Ct. App.