2011 UT App 168
Filed May 26, 2011
The Utah Court of Appeals held that a defendant’s charges of aggravated sexual abuse of a minor and forcible sexual abuse were properly joined because the crimes were connected in their commission in that they showed an escalating pattern of behavior.
Mr. Burke and his former classmate (Father) attended their ten-year high school reunion together at Snowbird. Sometime during the reunion, Father decided to stay overnight at Snowbird and made arrangements for both himself and Burke to sleep there. Burke opted not to stay and got a ride back to father’s house with some other classmates. Aunt was at the house taking care of Father’s four-year-old daughter (Child). Burke lied and told Aunt that Father had given him permission to spend the night at the house. Aunt contacted Mother, who was out of town, and Mother reluctantly gave her consent. Burke came up with repeated excuses to call Aunt down to the basement, where he would be sleeping. He got Aunt to sit on the couch next to him, and then put both his hands up her shirt and groped her breasts. Aunt immediately pulled Burke’s hands out of her shirt and demanded what he was doing, but he pulled her on top of him and tried to kiss her. Aunt ran upstairs and shut herself and Child in the master bedroom. At no time did she give Burke any indication that romantic advances would be acceptable to her. Burke remained downstairs, where throughout the night he ordered ****ographic movies from Father and Mother’s cable service and visited ****ographic websites on Mother’s computer. The next morning Child woke up and wandered downstairs, where she found Burke masturbating and watching a ****ographic movie which depicted oral sex. Burke told Child he had an “owie” on his penis. He then held Child’s hand very tightly and made her touch his penis while he watched the movie. Three days later Child related the incident to Mother and Mother immediately called the police. After a jury trial, Burke was convicted of aggravated sexual abuse of a child and dealing in materials harmful to a minor for his offenses against Child and forcible sexual abuse for his offenses against Aunt.
Burke appealed to the Utah Court of Appeals, alleging: (1) that the trial court was wrong to deny his motion to sever the offenses against Child and the offenses against Aunt; (2) that Child’s testimony was inadmissible at trial because it was more prejudicial than probative and that Child’s prior consistent out-of court statements were inadmissible hearsay; (3) that the trial court made evidentiary mistakes by improperly limiting his expert’s testimony, admitting evidence of which he had not been given the sufficient notice, and admitting evidence that lacked adequate foundation; (4 ) that the trial court inappropriately refused to ask specific voir dire questions and (5) that the trial court inappropriately denied his request for a voluntary intoxication jury instruction.
The Court of Appeals concluded that the offenses were properly joined because they were “connected in their commission.” “[C]harges are connected in their commission when there is a direct relationship between them. . . .” The Court found that the offenses had a direct relationship because they were “closely related in time and place, occurring on the same night, within hours of each other, in the same house, and even in the same room on the same couch.” Additionally, the Court found that the events show an “escalating pattern of behavior.”
Charges which are properly joined must still be severed if the joinder prejudices the defendant’s right to a fair trial. The defendant is prejudiced if evidence of one crime would not have been admissible in a trial for the other crime. The Court held that the evidence would have been admissible in separate trials because: (1) The evidence was offered for a proper noncharacter purpose as it was relevant to proving Burke’s intent to arouse or gratify sexual desire, an element of both crimes, rather than to show a propensity for bad behavior; and (2) The evidence was relevant because it showed a greater probability that Burke acted with the required motive to arouse or gratify his sexual desire and because it gives context to his actions over the course of the night. In addition, the Court held that the probative value of the evidence outweighed any danger of unfair prejudice because: (1) The strength of the evidence is relatively strong because the offenses were reported shortly after their commission and because both Aunt and Child testified at trial and were available for cross-examination; (2) There are similarities between the crimes because they are both sexual offenses; (3) The interval of time that elapsed between the crimes was relatively short; (4) The combination of Aunt’s and Child’s testimony adds credibility to what would otherwise be a contest of “he-said-she-said;” and (5) Although there is some potential that the evidence regarding the offenses against Child could have an emotional impact that could lead to an unfair verdict in a separate trial for the offenses against Aunt, that danger does not substantially outweigh the probative value of the evidence.
Evidentiary Rulings Related to Child’s Testimony
A trial court may exclude a child’s testimony if the probative value of the testimony is “substantially outweighed by the danger of unfair prejudice.” Burke argued that Child’s testimony was more prejudicial than probative because Child was susceptible to suggestion. The Court, however, found nothing in the record to suggest that Child had been intentionally prepared for her testimony or influenced by adults in such a way that she was only parroting what she had heard. Additionally, the Court found that her testimony had a great deal of probative value because she was the only one who was able to testify about Burke’s conduct towards her. Thus the probative value was not outweighed by any danger of prejudice. The Court held that Burke’s objection to her testimony went more to the weight that should be given to her testimony rather than whether it was admissible.
Burke also argued that Child’s out-of-court prior consistent statements were hearsay. Utah Rule of Evidence 801(d)(1)(B) permits the admission of prior consistent statements if they are offered to “. . . rebut a charge of recent fabrication of improper influence or motive. . . .” In cross-examination, Burke’s attorneys suggested that Child’s testimony was the result of recent influence by her parents, prosecutors, and police offers. The Court of Appeals held that Child’s prior consistent statements to Mother, Father, Aunt, and a CJC video interview were properly admitted to rebut this allegation. Although Child had been prepared for trial, her prior consistent statements were made long before she had been prepared to testify.
Trial Court’s Evidentiary Rulings
At trial, Burke’s attorney proffered that Burke’s expert would testify about interviewing techniques used in Child’s CJC interview. Out of concern that this testimony would invade the jury’s province as sole evaluator of the witness, the trial court instructed the witness that he could testify about interviewing techniques or child development, but could not comment Child’s specific behaviors or responses and draw conclusions from those. When Burke’s attorney began to ask the expert questions specifically about Child’s testimony, the trial court instructed the witness to phrase his answers in hypothetical terms. Burke argued that the trial court abused its discretion by thus limiting his expert’s testimony, but gave no explanation as to what other testimony his expert would have provided or how he was harmed by the limitation. The Court of Appeals therefore upheld the trial court’s ruling.
Burke further argued that the trial court impermissibly admitted evidence of bad acts of which the State had not given him adequate notice. This evidence regarded Burke’s conduct towards a woman in the car on the way back from the high school reunion as well as Mother’s testimony that Burke had accessed ****ographic websites on her computer. Utah Rule of Evidence rule 404(b) requires that a defendant be given “reasonable notice in advance of trial” if the prosecution intents to use evidence of bad acts extrinsic to the charged offense. Intrinsic acts, which are part of a continuing pattern of illegal activity, do not require the same notice. On appeal Burke did not address whether the bad acts in question were intrinsic or extrinsic to the charged crimes, nor did he address whether he was unfairly surprised by the lack of notice or whether notice would have made a difference in the outcome of the case. Therefore, the Court of Appeals declined to review the issue.
Burke also argued that the trial court admitted a list of internet cookies without adequate foundation. The list was prepared by Mother using her computer’s cut, copy, and paste functions to show the ****ographic websites that Burke had visited using her computer. The Court of Appeals noted that Mother could have been more extensively questioned about the accuracy of the time and date stamps on the list to lay a stronger foundation, but also noted that “authentication does not require conclusive proof.” Mother’s testimony was sufficient to show that the list was what it was purported to be, therefore foundation was adequate.
Burke requested that several questions about potential jurors’ patterns of religious attendance as well as questions about their ability to be objective be included in the voir dire examination. The court declined to ask the religion question, stating that “religion has no basis in this case whatsoever.” On appeal, Burke did not make any argument explaining what information this question would have revealed and how failure to have that information harmed him. Burke’s other requested questions about objectivity were adequately covered in the other questions asked in voir dire. Although the questions were not asked in exactly the format Burke requested, the subject matter was covered, and a defendant is not “entitled to ask questions in a particular manner.”
Voluntary Intoxication Jury Instruction
The trial court denied Burke’s request for a voluntary intoxication jury instruction. Voluntary intoxication is an affirmative defense, and as such the court is required to give the instruction if there is “any reasonable basis on which the jury could conclude that the affirmative defense applies to the defendant.” For voluntary intoxication to be a viable defense, Burke was required to prove that he was so intoxicated that he was unable to form the specific intent related to his charges, which was to arouse or satisfy sexual desire. The Court of Appeals found that, although there was evidence that Burke had been drinking, the evidence that he formed the specific intent to arouse or gratify his sexual desire was so prevent that there was no reasonable basis for a voluntary intoxication jury instruction.