Lead Opinion
Opinion
¶ 1 After a jury trial, Trevor Paul Van Oostendorp was convicted of forcible sodomy and sentenced to an indeterminate prison term of five years to life. He appeals the conviction, challenging the evidence used against him and one of the court’s jury instructions. We affirm.
BACKGROUND
¶ 2 Van Oostendorp met Victim online in April 2013 and then in person in May. They began a relationship that Victim described as initially good and that included consensual sex. However, by late summer the relationship began to sour; Van Oostendorp started to use derogatory language to describe Victim, and he became physically abusive by
¶3 By the fall of 2013, Van Oostendorp became more abusive. During oral sex on one occasion, he held Victim’s head down until she began to vomit, telling her afterwards that he thought “it was hot.” During one argument in which he accused Victim of being unfaithful, Van Oostendorp reached for a gun and threatened to hold it to her head to make sure she was answering truthfully. Although she was able to calm him down that time, Victim also recounted an incident the following January in which Van Oostendorp again threatened her with' violence. After losing his' temper, he told Victim “that he was going to shoot [her]. That he was going to scalp [her]. That he was going to beat [her] face in. That [her] daughter would no longer have a mother.” Victim called the police, but Van Oostendorp had fled the scene by the time they arrived. Afterwards, the pair temporarily reconciled.
¶ 4 The next month, over Valentine’s Day weekend, the two quarreled again over the phone and by text message. Although they had previously made plans for the weekend, Van Oostendorp became upset and told Victim, “I’m not coming back there at all. I’m done.” When Victim asked about the $1,000 Van Oostendorp owed her, he told her to “take the thousand dollars.” Using a signed blank check that Van Oostendorp had previously given her, Victim did so. However, Van Oostendorp then “got irate” when he learned that she had actually followed through on his offer. He told her he had reported her to the fraud department at his bank and that she was “going to go to jail ... [and] going to lose [her] daughter.” When Victim’accused Van Oostendorp of lying to the bank about the cashed check, he said, “You’re damn skippy I lied.” Van Oostendorp also threatened to beat Victim and claimed that she was “going to have marks” that she would need to explain away at work. Victim was “absolutely terrified” by the threats, and she called her ex-husband to ensure that he would “take care of [their daughter]” if she did not “make it out today.”
¶ 5 Still interacting by phone and apparently having reconsidered his earlier breakup text, Van Oostendorp ordered Victim to “get ready for him” to come home by taking a bath. Although she did not know what she was getting ready for, Victim complied because she “was so scared of him and [she] just wanted to try to ease things over and try and calm him down.” As Victim described the events at trial, Van Oostendorp ordered her to stand against the wall in the shower when he arrived at the house. He removed his belt, smacked her with it, and then put the belt in her mouth. He pushed her down onto her knees in the bath tub. He began to urinate “on [her] head and in [her] eyes, and it was running in [her] mouth,” which she was not able to close because of the belt. As he did this, he asked Victim, “How do you like that? How do you like that?”
¶ 6 Van Oostendorp then got undressed, stood Victim up, and pushed her forward so that he was behind her. He spit on her anus and then “shoved” his penis into it. Victim, crying, screamed in pain and said, “No, stop. It hurts.” Van Oostendorp told Victim to be quiet because he did not want the neighbors to hear. He also forced Victim to look at herself “in the mirror with the urine in [her] hair and [her] makeup running down [her] face.” Finally, he put her in the shower and told her to clean off. When Victim got out of the shower, she was in pain, physically shaking, and bleeding. When asked at trial whether the sexual encounter in the bathroom was consensual, Victim testified, “No, it was not.”
¶ 7 The State charged Van Oostendorp with forcible sodomy, a first degree felony, under Utah Code section 76-6-403. Before trial, Van Oostendorp moved for a determination of whether Victim was competent to testify at trial and whether her testimony was reliable. The court denied the motion, finding that it had “no legitimate doubts” about her competency and that any questions of reliability “could be adequately investigated through cross-examination.” Van Oosten-dorp also sought to exclude evidence about his history of abusive treatment of Victim under Utah Rule of Evidence 404(b), which
¶ 8 At trial, Van Oostendorp conceded that much of the alleged conduct, and specifically the anal sex, had taken place. Thus, whether the sodomy itself — the actus reus of the crime — had occurred was not at issue. Instead, the question for the jury was one of consent. The State put on evidence that Victim had not consented and that Van Oosten-dorp was at least reckless regarding the lack of consent. A significant part of the State’s theory of the ease involved characterizing the relationship as generally abusive. Specifically, the State characterized Victim as the subject of a pattern of domestic abuse, sexual and otherwise. Van Oostendorp’s defense likewise focused on Victim’s consent and his mens rea regarding her consent. He argued that he was acting under a mistake of fact as to Victim’s consent when the sexual acts underlying the charge took place, a mistaken belief he claimed was supported by the couple’s pattern of consensually engaging in rough sexual activity in the past. That is, his trial theory was that he reasonably thought she consented, even if she did not.
¶ 9 Van Oostendorp sought a jury instruction based on this theory. While the court did not submit the requested instruction to the jury, it did add a paragraph to an existing instruction that addressed the effect of a mistaken belief as to consent. The jury convicted Van Oostendorp of forcible sodomy, and he was sentenced to a prison sentence of five years to life. He appeals.
ISSUES-AND STANDARDS OF REVIEW
¶ 10 Van Oostendorp raises three arguments in this appeal. First, he contends that the State submitted insufficient evidence to sustain a jury verdict against him. “When a jury verdict is challenged on the ground that the evidence is insufficient, ... [w]e review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury.” State v. Hamilton,
¶ 11 Second, Van Oostendorp argues that the trial court applied rule 404(b) too broadly and erroneously allowed evidence of prior bad acts that was unduly prejudicial. “We review a trial court’s decision to admit other acts evidence under rule 404(b) of the Utah Rules of Evidence under an abuse of discretion standard.” State v. Plexico,
¶12 Third, Van Oostendorp claims that the trial court erred when it declined to give the jury his proposed mistake of fact instruction. “Whether a trial court committed error in refusing to give a requested jury instruction is a question of law, which we review for correctness.” State v. Kruger,
ANALYSIS
I. Sufficiency of the Evidence
¶ 13 Van Oostendorp argues that the “[e]v-idence presented by the State was not sufficient to sustain a jury verdict against [him]” because Victim “was incompetent and too unreliable to testify.” Without Victim’s testimony, which he contends the court should have excluded, “the chances of the State securing a conviction against [Van Oosten-dorp] were exceedingly miniscule, if [not] non-existent.”- Assuming without deciding that Victim’s testimony was essential to the
¶ 14 “Utah law imposes a very low bar for establishing the competency of a witness.” State v. Calliham,
¶ 15 In support of his argument that Victim was incompetent to testify, Van Oos-tendorp directs our attention to a single statement in Victim’s psychological evaluation, which stated, “[Victim] reported that she has experienced a loss of memory for specific aspects of the alleged sodomy.” As we understand it, Van Oostendorp contends that Victim’s memory gaps rendered her incapable of perceiving the events in question as required by the rules of evidence, or, more specifically, that the memory gaps prevent her from recalling the events, even if she perceived them in the first instance. He relies on Ladd v. Bowers Trucking, Inc.,
¶ 16 We agree that both the capacity to perceive events and the ability to recall them are integral to a witness’s competence to testify. Id. (“[A] lay witness is only competent to testify if ... the witness both perceived a relevant event and can recall the event.” (citation and internal quotation marks omitted)). However, Ladd presents a significantly different scenario from the one at issue here. In that case, the witness “clearly stated in his deposition that his account of the [event] [was] ‘actually [him] reliving [his] dream’ and that, putting the dream aside, he otherwise had absolutely no recollection of the [event].” Id. (third and fourth alterations in original). Thus, the rule of Ladd is that a witness cannot testify to a matter of which she has no memory.
¶ 17 Here, in stark contrast, the psychological report explains the minor nature of Victim’s memory gaps. For instance, the report recounted her statement that “[s]ometimes the order [of the events in the shower] will get jumbled for me.” She also admitted to not remembering Van Oostendorp getting undressed during the incident, or what clothing he wore after the incident. But this sort of minor memory problem is far different from the circumstances in Ladd, where the witness conceded that he had absolutely no recollection of an event aside from a dream.
¶ 18 In addition, the record demonstrates that Victim had both the opportunity and the capacity to perceive the sodomy, and that she could recall the event in detail. For example, Victim’s testimony about the act itself — -not including the lead up and aftermath — covers three pages of transcript, over half of which is comprised of her recounting the crime in specific detail without interruption or prompting by court or counsel. And her testimony made clear that her memory was based on her direct perception of the events as they occurred.
¶ 19 When addressing this issue below, the trial court determined that any questions about Victim’s ability to testify accurately and truthfully about the incident, including exploration of any memory gaps, “could be adequately investigated through cross-examination.” We agree. Victim was present during the event. She had the capacity to perceive the event, and she later recalled what happened in detail. Any minor memory gaps she displayed related to her credibility as a witness, if anything, not to her competency to give testimony. See State v. Prater,
¶20 Because “[t]he jury is the exclusive judge of credibility,” Utah Code Ann. § 78B-1-128(4) (LexisNexis 2012), “we will not act as a second trier of fact” on appeal, Prater,
II. Prior Bad Acts Evidence
¶ 21 Van Oostendorp next claims that the trial court erroneously allowed “a wide variety of evidence of prior ‘bad acts’ under Utah Rule of Evidence 404(b),” much of which “had no bearing on whether the alleged crime had taken place, and was used in a manner that served to impermissibly impugn [Van Oostendorp’s] character.”
¶ 22 Rule 404(b) controls the intersection of two competing evidentiary interests. On one hand, the rule recognizes the “dangers of exposing a jury to evidence of a defendant’s acts of prior misconduct — specifically, the risk that the jury will infer that the defendant has a reprehensible character, that he probably acted in conformity with it, and that he should be punished for his immoral character.” State v. Thornton,
¶23 “Stated succinctly, to be admissible, evidence of prior bad acts must be relevant and offered for a genuine, nonchar-aeter purpose; furthermore, the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice.” State v. Lucero,
¶24 The trial court followed this process here. The State moved to admit evidence of prior bad acts and Van Oostendorp contested its admissibility under rule 404(b). After receiving briefing from both parties, the court held a hearing on the matter and issued a written order. In its order, the trial court analyzed fifteen categories of evidence offered by the State to consider whether they passed muster under rule 404(b) and rule 403. The court determined that six categories did not meet the rules’ requirements but that nine did, including all four categories that Van Oostendorp now challenges. On appeal, “the question for us is not whether we would have admitted this evidence. It is whether the district [court] abused [its] broad discretion in doing so.” Thornton,
¶25 Van Oostendorp argues that the trial court erred in admitting a wide array of prior bad acts evidence under rules 403 and 404(b), Before addressing these arguments, the context of the trial is helpful background. As we explained above, each party’s theory of the case centered on the issue of consent — the State argued that Victim did not consent to the sodomy, while Van Oostendorp argued that, even if she did not consent, he reasonably believed she did. In its case in chief, the State focused on the nature of the relationship. Specifically, the State used'prior bad acts evidence to show that the relationship was generally abusive and to portray Victim as the frightened and demoralized target of Van Oostendorp’s abuse. In defense, Van Oostendorp’s theory of the case was that “much of the [bad acts evidence] was part and parcel to the couple’s submissive/dominant type of sexual [relationship] that was completely consensual.”
¶26 On appeal, Van Oostendorp asserts that four types of evidence should have been excluded from trial: his text messages to Victim that included disrespectful language and name calling; evidence that Van Oosten-dorp viewed Victim as a sex object; evidénce of his use of a weapon to intimidate Victim and associated death threats; and an alleged threat to stab Victim with a knife the day after the charged events. These four individual types of evidence fall into two broad categories: first, Van Oostendorp’s demeaning treatment of Victim, including the text messages with name-calling and disrespectful language, and the “sex object” evidence; and second, the threats of violence against her.
¶ 27 In its pretrial evidentiary ruling, and with both parties’ theories of the case in mind, the court addressed each category of evidence that Van Oostendorp now contests. With regard to the first, the court determined that evidence of Van Oostendorp’s disrespectful language and name calling was “relevant to the overall story from both parties.” The court also chose to consider the Shickles factors and found that “the strength of the evidence is sufficient, [the text messages] are close in time, need has been shown, and they are no worse than the crime charged.” Likewise, the court allowed evidence that Van Oostendorp viewed Victim as a sex object because such evidence was “part of both parties’ theories of the case.”
¶ 28 Van Oostendorp claims the court erred in admitting a “vast number of text messages” because “problems arise at every step” of a rule 403 balancing test based on the Shickles factors. Specifically, he contends that there was no non-character purpose for the. evidence of disrespect and name calling and that it was not relevant to the State’s
¶29 Even if Van Oostendorp had cited discrete portions of the record, he has still not shown how the trial court abused its discretion when it admitted the texts. To be sure, Van Oostendorp suggests that the court should have weighed the Shickles factors differently. As we explained above, though, the Shickles factors “may be helpful” to a court in applying the text of rule 403, but applying them is not required. See State v. Lucero,
¶ 30 Here the trial court issued an order that explained in some detail the basis for its decision to admit the disputed evidence. That explanation seems .reasonable on its face. See Diversified Holdings, L.C. v. Turner,
¶31 For instance, the court determined that the text messages and “sex object” evidence were relevant to both the State’s theory and Van Oostendorp’s theory of the case. Indeed, in keeping with' his claim to have been mistaken about Victim’s lack of consent to the sexual acts with which he was charged, Van Oostendorp “testified at length that [the] back and forth” in the text messages was a “playful, erotic, and consensual” part of the relationship rather than disrespectful and abusive. And evidence that he treated her as a sex object throughout their relationship, which Van Oostendorp candidly acknowledges “could loosely apply ... to a vast majority of the interactions between” the two, is clearly relevant to whether he actually misperceived Victim’s lack of consent to the sodomy or simply had so little regard for Victim that her consent—or lack thereof— was of no interest to him at all.
¶ 32 Without any meaningful analysis, it is not evident how the court’s decision to admit evidence that Van Oostendorp himself relied on was unreasonable. Because he does not engage with the trial court’s reasoning, Van Oostendorp has not persuaded us that the court abused its discretion. See Allen v. Friel,
¶ 33 With regard to the second category of evidence, the. trial court allowed testimony that Van Oostendorp had made threats against Victim, involving weapons, during two separate confrontations. The court determined such evidence was “relevant to establish an . abusive/domestic violence relationship” and that it went “to the alleged victim’s state of mind and to the issue of consent on the part of the victim,” both non-character purposes. The court then concluded that the evidence would not .unduly, prejudice the jury because the evidence was “no worse than the alleged crime.”
¶ 34 Van Oostendorp argues that the court should have excluded this evidence because
¶ 35 It is true that the evidence in question was not relevant to whether the sexual act underlying the sodomy charge actually took place, but that was not an issue at trial — Van Oostendorp admitted that it had, but claimed it was consensual. The State offered the evidence for the purpose of rebutting that very claim. In its order, the trial court determined that the evidence satisfied the Shickles factors, was “relevant to establish an abusive/domestic violence relationship,” and “[went] to the alleged victim’s state of mind.” That is, the court determined that there was a non-character purpose for the evidence, that it was relevant, and that any danger of unfair prejudice did not outweigh the probative value of the evidence. See State v. Lucero,
¶ 36 We agree with the trial court. The evidence was highly probative, specifically on the issue of Victim’s consent — the key issue on which Van Oostendorp’s defense turned. Indeed, his defense opened the door to evidence about his own state of mind. See State v. Rees, 2002 UT App 347U, para. 3,
¶ 37 Thus, all the evidence at issue on appeal was relevant to rebut Van Oosten-dorp’s defense that he reasonably assumed Victim consented to the acts underlying the charges because she had consented to similar acts before. And because the trial court determined that the State clearly offered the evidence for a noncharacter purpose, it would take more than the conclusory analysis Van Oostendorp has provided on appeal to persuade us that the trial judge exceeded his “discretion in deciding that the probative value of this evidence was not substantially outweighed by the risk of unfair prejudice.” Thornton,
III. Juiy Instruction
¶ 38 Finally, Van Oostendorp argues that the trial court erred when it declined to give the defense’s proposed mistake-of-fact instruction to the jury. The court should have issued the instruction, he claims, because, “if the evidence supports an affirmative defense, the State has the burden to prove beyond a reasonable doubt that the defense does not apply.”
¶ 39 In the proceedings below, Van Oosten-dorp argued that he had a statutory right to raise mistake-of-fact as an affirmative defense. See Utah Code Ann. § 76-2-304(1) (LexisNexis 2012) (“Unless otherwise provided, ignorance or mistake of fact which disproves the culpable mental state is a defense to any prosecution for that crime.”). The court agreed. Van Oostendorp proposed language that, he claimed, properly instructed the jury on his mistake-of-fact defense and the applicable burden of proof. The State
¶ 40 Van Oostendorp’s point on appeal is that his testimony and the testimony of his expert witness entitled him to a separate jury instruction addressing his alleged mistake of fact as to Victim’s consent. Accordingly, Van Oostendorp contends that the trial court erred in rejecting the proposed instruction. As we understand it, Van Oostendorp believes that the court’s decision to “add some language” — the additional paragraph quoted above — instead of giving the jury his proposed instruction verbatim denied him the right to present his theory of defense. Yet Van Oostendorp’s brief neither quotes nor describes the rejected instruction. Nor does Van Oostendorp quote or describe the language the court added to the elements instruction for the express purpose of presenting the jury with an alternative description of the mistake defense Van Oostendorp had offered. Instead, Van Oostendorp has simply attached a number of jury instructions to the brief. But these are not labeled or referred to in the text of the brief and we are not told which of these instructions were given and which rejected. More importantly, Van Oos-tendorp has not compared or contrasted the instruction he proposed with the one the trial court gave to the jury as an alternative.
¶ 41 Failure to give [a] requested jury instruction! ] constitutes reversible error only if [its] omission tends to mislead the jury to the prejudice of the complaining party or insufficiently or erroneously advises the jury on the law.” State v. Stringham,
CONCLUSION
¶ 42 We conclude that Victim was competent to testify at trial and that there was therefore sufficient evidence for a jury to convict. Further, Van Oostendorp has not persuaded us that the trial court erred in admitting evidence of prior bad acts or that the jury instructions violated his rights. Affirmed.
Notes
. "On appeal, we review the record facts in a light most favorable to the jury’s verdict and recite the facts accordingly.” State v. Brown,
. Van Oostendorp also seems to argue that Victim's testimony was unreliable and should have been excluded under rule 403, which allows the court to "exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Utah R. Evid. 403. Van Oos-tendorp apparently contends that the same memory lapses that rendered Victim incompetent to testify also made her testimony so unreliable as to be unfairly prejudicial. Like his competency argument, however, this contention is about Victim's credibility as a witness, not the reliability of her testimony. And as we have discussed, credibility questions are wholly within the province of the jury. Van Oostendorp has not undertaken the analysis necessary to demonstrate that Victim’s testimony was incredible as a matter of law. See State v. Prater,
. Recently, our supreme court precedent has relegated the Shickles .factors to marginal status. The court explained that, “while some of these factors may be helpful in assessing the probative value of the evidence in one context, they may not be helpful in another. It is therefore unnecessary for courts to evaluate each and every factor and balance them together in making their assessment.” State v. Lucero,
. Van Oostendorp does not acknowledge the trial court's additional jury instruction language until his reply brief, and he does so then only after the State argued that the failure to do so in his opening brief was a basis for affirmance. See Allen v. Friel,
Concurrence Opinion
(concurring):
¶ 43 I concur in the opinion of the court. I write separately only to emphasize what I believe to be the limited role of the so-called Shickles factors in rule 403 analysis.
¶ 44 Our supreme court has clarified that Utah courts are “bound by the text of rule 403.” State v. Lucero,
¶45 However, our supreme court has also recently rejected the idea “that the Shickles factors, taken individually, have no place in a rule 403 analysis. It may very well be appropriate, for example, for a district court to consider the similarities between the crimes in-assessing probative value.” Cuttler,
¶ 46 But I see no legal relevance in whether a factor is found on the Shickles list. All that matters is that it aids the court in applying the law, i.e., the text of rule 403. One or more of the Shickles factors may sometimes help, but the same can be said of non-Shickles factors, such as “the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way,” Shuffield v. State,
¶ 47 I believe this is our' supreme court’s approach.- But it appears to me'that this nuanced approach may not be sufficient to drive a stake into the heart of Shickles. Perhaps the time has come to hold that any ■reference to the Shickles factors constitutes reversible error.
¶ 48 I also add this observation:' when a relationship marked by bullying, threats, or violence culminates in an accusation of sexual assault answered by a claim of consent, evidence of that history of abuse will almost always satisfy rules 402, 403, and 404(b). It will almost always be highly probative and almost never be unfairly prejudicial. If our rules of evidence are to reflect the real world, they must recognize that the question of consent must be viewed through the lens of the couple’s entire relationship. And just as a history of consensual sex is relevant to whether a sexual partner consented on a particular occasion, see Utah R. Evid. 412(b)(2), so also is a history of abuse, see State v. Diak, No. 98-2004-CR,
¶ 49 Constitutional law provides a useful analogue. “When a prosecutor seeks to rely upon consent to.justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.” Bumper v. North Carolina,
. I am of course not suggesting that a criminal defendant bears any burden of proving consent in a criminal prosecution; I am suggesting only that the “consent” — whose absence the prosecutor must prove beyond a reasonable doubt— means consent that was the product of a free and unconstrained choice under a totality of the circumstances, including the couple's history.