Opinion
T1 Azlien Adieu Farquat Marchet appeals from his conviction of rape, a first degree felony.
BACKGROUND
12 Marchet's conviction results from his 2003 rape of SW., a woman he knew casually through her place of employment. On October 16, 2003, SW,. visited a Salt Lake City dance club. By apparent coincidence, Mar-chet was also at the club that evening. Mar-chet approached her. She recognized and hugged him. Marchet asked her if she wanted to see a new luxury SUV he had parked outside. She did, and the two walked out the front door of the club together.
38 Marchet guided S.W. to an unlit parking area, but S.W. stopped when she did not see the vehicle that Marchet had described. At that point, Marchet-who was much larger than S.W.-nudged S.W. between two parked cars and began to kiss her. She struggled and managed to temporarily break away, but Marchet grabbed her arm and pulled her back. He then placed her hand on his exposed penis. She told him, "That's not what I came out here for."
T 4 Despite her protests, Marchet grabbed S.W. by the waist and flipped her around so that she was facing away from him. Marchet pinned S.W.'s arms against her midsection with one arm and pulled her pants down. S.W. continued to struggle and protest as Marchet attempted to penetrate her anally. When that attempt failed, Marchet penetrated her vaginally. Marchet eventually released S.W. She then pulled up her pants and ran back toward the club. He chased after her, caught up, and asked, "[YJou're not going to pull a Kobe Bryant on me, are you?"
15 A Salt Lake City Police Department officer, Officer Miller, was at the club performing a bar check. Club employees notified Miller of S.W.'s rape allegations. Miller met with S.W. for about forty-five minutes. During their discussion, S.W. was upset, shaking, and erying. S.W. told Miller that Marchet had just sexually assaulted her. That same night, a forensic nurse, Nurse Thompson, examined S.W. During the exami
T6 The State charged Marchet with one count of rape. Prior to trial, the State moved for the admission of evidence of sexual assaults that Marchet had committed against two other women, A.H. and P.C.
T7 At trial, S.W. recounted her version of events as described above. Officer Miller testified about the interview she had conducted with SW. shortly after the assault, including S.W.'s "hysterical" demeanor and apparent lack of intoxication.
T8 AH. testified that she had met Mar-chet at a night club in June 2008. About a month after first meeting him, A.H. again encountered Marchet at a club. After the club closed, Marchet asked A.H. to talk with him outside. AH. accompanied him toward what she thought was his car. Marchet then grabbed A.H.'s waist and pulled her into an unlit alley, where he turned her around and restrained her. Despite her vocal protests, Marchet then penetrated her anally and vaginally. Immediately afterwards, AH. confronted Marchet, who responded that they "both just probably needed to have a little-a little fun, just blow off a little steam."
T 9 P.C. testified that she met Marchet at a hotel dance club in January 2005. Around closing time, Marchet accompanied P.C. to the hotel lobby, and eventually led her into a stairwell. He began to kiss her, but she protested, at which point he pulled her to the stair landing, grabbed her, and spun her around so her back was toward him. As she continued to protest, Marchet restrained her arms and pulled her skirt down to her thighs. P.C. heard the sound of a zipper and believed that Marchet was about to rape her. She struggled free, but Marchet again grabbed her, pulled up her shirt, and began kissing her breasts. Marchet released her after she began yelling. Marchet called her on the phone about a half hour later and told her, "I just wanted to check on you because you ran out of here pretty quick and you seemed upset."
10 Thompson, the forensic nurse who had examined S.W., testified about the exam, the redness she observed, and her opinion that the redness was an injury consistent with nonconsensual sex. On cross-examination, Thompson conceded that the redness was not something that most people would consider an injury and that she had observed the redness with an instrument that provided 15x magnification. She also opined that some form of injury will occur in 70 to 80% of nonconsensual penetration cases, while consensual penetration results in injury approximately 10% of the time.
{11 During his eross-examination of Thompson, Marchet's counsel sought to introduce her forensic examination report into evidence.
112 Marchet's counsel argued that the evidence was admissible to demonstrate that someone other than Marchet could have caused S.W.'s injury. See id. R. 412(b)(1). When the district court pointed out that rule 412 generally requires pretrial notice when evidence of a victim's sexual activity will be offered to show an alternate source of injury, Marchet's counsel candidly admitted that he had not discovered the information about S.W.'s prior sexual encounter during his preparations for trial The district court ruled that the information would be redacted.
{13 Despite the district court's ruling, Marchet's counsel filed a written motion to admit the prior sexual activity evidence under rule 412(b) for the purpose of providing an alternate explanation for S.W.'s injury. Marchet's counsel again took full responsibility for failing to discover the evidence in time to seek its admission before trial, stating, "[It is my problem. I didn't see that. Absolutely." The State objected to the motion, arguing that Marchet had proffered no evidence to prove that the prior consensual sexual encounter could have caused the injury. The district court expressed concern that if it failed to conduct a rule 412 hearing, Marchet might later claim ineffective assistance of counsel. Nevertheless, the court informed Marchet's counsel that unless he could present expert testimony tying the pri- or sex act to S.W.'s injury, the evidence would not be relevant.
14 Counsel for the State reminded Mar-chet's counsel that Marchet's prior attorney had designated a defense expert, Nurse Carver. Marchet's counsel explained that he had not spoken with an expert because he knew that SW. had not suffered any acute injuries and he did not want to emphasize the minimal redness observed by Thompson. The district court took a recess to allow counsel to speak with Carver, When he returned, counsel stated that he would no longer seek to introduce the rule 412) evidence, as Carver would testify that the redness Thompson had observed was not an injury, obviating the need for evidence of an alternative source of the redness. The district court then indicated on the record that Marchet's counsel had made a strategic decision not to pursue admission of the rule 412(b) evidence.
« 15 Marchet testified in his own defense. He acknowledged having had sex with S.W. outside of the club on the night in question but insisted that it was consensual. He admitted saying "don't go pull a Kobe on me" after the encounter, but he explained that he did so only because S.W. had "freaked out." Carver also testified for the defense and opined that the redness that Thompson had observed was not significant and did not indicate nonconsensual sex. She also testified that if the encounter happened as S.W. had described, then Carver "would have expected to see injuries."
T 16 The jury convicted Marchet of rape, and the district court sentenced him to a prison term of five years to life, to be served consecutively to any other prison terms that Marchet was then serving. Marchet filed a motion for new trial alleging that his counsel provided ineffective assistance by mishandling the rule 412 evidence and that the jury had used A.H. and P.C.'s testimony for the improper purpose of evaluating Marchet's character. The district court denied Mar-chet's motion, and he now appeals his convietion.
ISSUES AND STANDARDS OF REVIEW
117 Marchet raises two issues on appeal. First, he argues that his trial counsel was ineffective because counsel failed to secure the admission of the rule 412(b) evi
ANALYSIS
I. Ineffective Assistance of Counsel
18 Marchet argues that his trial counsel mishandled Nurse Thompson's forensic examination report and thereby rendered ineffective assistance of counsel. Marchet identifies two specific instances that he alleges constituted deficient performance by his counsel. First, Marchet challenges counsel's failure to investigate the report and discover the information pertaining to S.W.'s prior sexual activity in time to file a timely pretrial motion under rule 412. See Utah R. Evid. 412(c). Second, Marchet faults counsel's decision at trial to forego the possible admission of the information under rule 412(b) and instead rely solely on the defense expert's testimony that S.W.'s redness did not constitute an injury.
€ 19 To prevail on an ineffective assistance of counsel claim under Strickland v. Washington,
20 Defense counsel's pretrial preparation in this case raises a serious concern that he performed deficiently by failing to notice the prior sexual activity evidence in the forensic report prior to trial, See State v. Templin,
T21 Marchet argues that his trial counsel's ultimate decision not to seek to admit the rule 412(b) evidence "was not a well-reasoned tactical decision," but rather "was an easy way out of the problem he created" by failing to adequately investigate the contents of the report before trial. We need not reach the merits of this argument, however, as Strickland instructs that it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed."
122 Marchet is entitled to relief on his ineffective assistance of counsel claim only if he can show " 'that there is a reason
123 Marchet argues that counsel's actions prejudiced him because rule 412(b) evidence "plays a huge role in cases involving alleged sexual misconduct" and that "given its inherent significance, the deleterious effect of trial counsel's failure to present such evidence to a jury, when available, is substantial." Marchet points us to the Tenth Cireuit Court of Appeals decision in United States v. Begay,
124 We see no reasonable probability of a more favorable verdict for Marchet in this case if his counsel had handled the forensic examination report differently. Had counsel done so, the only potential change to the overall evidentiary picture might have been the admission of the prior sex act evidence for the purpose of showing an alternate source of S.W.'s injury. However, S.W.'s injury was a relatively minor aspect of the State's case. Thompson testified that she would have concluded that S.W. had been raped even if there was no injury, based on S.W.'s anxious and tearful behavior during the examination. Thompson's testimony also established that she had observed the redness under magnification and that the average person would not consider it to be an injury. Thompson further conceded that the redness could have resulted from consensual sex, although she testified that "the probability that injury is caused by nonconsensual is much higher than it would be that it was caused by consensual."
125 Other evidence also substantiated S.W.'s sworn version of events. Marchet himself acknowledged that he had sexual intercourse with S.W. in the parking lot that evening, and he further admitted to making the statement to S.W. referencing the Kobe Bryant rape allegation. The jury also heard multiple witnesses testify that SW. was upset and erying after the encounter with Marchet and that she immediately reported having been sexually assaulted. These witnesses included Officer Miller, who interviewed SW. shortly after the assault, and Thompson, who conducted her forensic examination of S.W. later that same night.
126 In light of this substantial evidence, admission of the rule 412(b) evidence to provide a possible alternate explanation for the disputed injury to SW. would not have altered the "entire evidentiary picture" against
II. The Rule 404(b) Evidence
27 Marchet also argues that the district court erred in admitting the testimony of AH. and P.C. under rule 404(b) of the Utah Rules of Evidence.
T28 Marchet concedes that the district court "undertook an examination, as is required by Ferguson," prior to admitting the testimony of A.H. and P.C. See State v. Ferguson,
29 First, Marchet raises a series of general assertions of error, unsupported by authority or analysis as to how that authority applies to this case.
130 Marchet next argues that A.H.'s testimony fails to show a modus operandi and should not have been admitted for that purpose. He argues that A.H.'s testimony is analogous to the testimony we rejected in State v. Cox,
4 31 Marchet fails to explain, however, how any error in admitting the evidence for that purpose prejudiced him in light of the other purposes for which the evidence was admitted-to show intent, common plan or scheme, and S.W.'s lack of consent. Because Mar-chet fails to demonstrate prejudice resulting from the admission of A.H.'s testimony to show modus operandi, we will not disturb his conviction even if admission for that purpose could be deemed error. See Marchet II,
T 32 Marchet finally argues that P.C.'s testimony should have been excluded due to a lack of similarity between Marchet's assault on her and his rape of SW. See generally Shickles,
CONCLUSION
1 33 We conclude that trial counsel's handling of the rule 412(b) evidence did not prejudice Marchet because, in light of the other evidence of Marchet's guilt, a more favorable verdict would not have been reasonably likely even if counsel had succeessfully introduced the rule 412(b) evidence. Thus, Marchet has not established his claim of ineffective assistance of counsel. We also conclude that Marchet has failed to establish
Notes
. This court has, on three prior occasions, considered Marchet's appeals from other felony sex crime convictions. See State v. Marchet (Marchet I),
. "On appeal, we recite the facts from the record in the light most favorable to the jury's verdict and present conflicting evidence only as necessary to understand issues raised on appeal." State v. Daniels,
. At trial, SW. was asked how she interpreted this comment. She explained, "There was a very public trial in the summer of 2003 of [professional athlete] Kobe Bryant being accused of rape."
. - The State's motion also sought the admission of similar testimony from a third woman, but the district court ultimately decided to exclude that evidence "based in large part on the balancing requirements of [rule] 403." See generally Utah R. Evid 403 (allowing for the exclusion of relevant evidence where probative value is substantially outweighed by potential for, among other things, unfair prejudice).
. - The district court ultimately instructed the jury that it could consider A.H. and P.C.'s testimony "only for the purpose of deciding (1) whether or not the defendant intended to rape [S.W.]; (2) whether or not he had a plan, scheme, or other modus operandi with regard to [S.W.]; or (3) whether or not [S.W.] consented to the sexual intercourse."
. SW. testified at trial that she had consumed two cocktails and was on various prescription medications at the time of the assault but that she was not intoxicated.
. We note that Marchet is represented by different counsel on appeal.
. In his appellate briefs, Marchet refers to the prior sex act as occurring approximately forty-eight hours prior to his encounter with S.W. The record is unclear as to the exact time difference between the two events.
. We note that the Sixth Amendment right to confrontation "requires only that the accused be permitted to introduce all relevant and admissible evidence." State v. Williams,
. As noted above, this is the fourth occasion upon which we review an appeal by Marchet from a sex crime conviction. All three of Mar-chet's prior cases before this court involved analysis of evidence admitted under rule 404(b), and two of the three involved the admission of testimony that Marchet had sexually assaulted other women. See Marchet I,
. - State v. Verde also clarified the analysis for the admission of prior bad acts evidence. Specifically, Verde examined the use of prior bad acts evidence to prove a defendant's specific intent,
. Marchet's perfunctory briefing on this issue may be explained by his acknowledgment that there is significant overlap between the issues in this case and the issues we resolved in Marchet III. In Marchet III, we addressed the prior bad acts testimony of S.W. and P.C. at Marchet's trial for sexually assaulting A.H. See