State v. Leber

• Decision Date: 09 August 2007
• Docket Number: No. 20060613-CA.,20060613-CA.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Kenneth Anthony LEBER, Defendant and Appellant.
• Court: Utah Court of Appeals

167 P.3d 1091

2007 UT App 273

STATE of Utah, Plaintiff and Appellee, v. Kenneth Anthony LEBER, Defendant and Appellant.

No. 20060613-CA.

Court of Appeals of Utah.

August 9, 2007.

Joyce G. Smith, Blanding, for Appellant.

Mark L. Shurtleff, Attorney General, and Marian Decker, Assistant Attorney General, Salt Lake City, for Appellee.

Before GREENWOOD, Associate Presiding Judge, BILLINGS, and McHUGH, JJ.

OPINION

GREENWOOD, Associate Presiding Judge:

¶ 1 Defendant Kenneth Anthony Leber appeals his jury conviction of second degree felony child abuse. See Utah Code Ann. § 76-5-109 (Supp.2006). On appeal, Defendant contends that the trial court abused its discretion in admitting evidence of Defendant's prior crimes and bad acts without first conducting an inquiry under rule 404(b) of the Utah Rules of Evidence. See Utah R. Evid. 404(b). Defendant also claims ineffective assistance of counsel. We affirm.

BACKGROUND

¶ 2 In January 2006, Defendant was involved in an altercation with his fifteen-year-old son, M.L., over M.L.'s guitar playing. According to M.L., when M.L. refused to stop playing the guitar a fight ensued between Defendant and his son, and Defendant threw M.L. against a mirror and choked him into unconsciousness. Police found M.L. at a grocery store in Mexican Hat, Utah, where he had a bleeding mouth, swollen eye, and finger marks around his neck. At Defendant's mobile home, police observed a mirror broken in two places, where it appeared someone had been smashed into it, and blood in the hallway and the bathroom sink. Defendant told the officers that M.L. had pushed him and that he was defending himself.

¶ 3 Defendant was charged with second degree felony child abuse. See Utah Code Ann. § 76-5-109. At Defendant's jury trial, the trial court ruled that Defendant's counsel had opened the door to M.L.'s character trait for violence through opening argument statements and questions posed to M.L. Pursuant to rules 404(a) and 405 of the Utah Rules of Evidence, the trial court then allowed the admission of evidence about Defendant's reputation for violence and about three of Defendant's prior crimes or bad acts. See Utah R. Evid. 404(a), 405. In addition, the trial court suggested, and defense counsel approved, a rule 404(b) jury instruction limiting the jury's use of the prior bad acts evidence. See id. 404(b). The jury convicted Defendant, and he now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 4 Defendant argues that the trial court abused its discretion in admitting evidence of Defendant's prior bad acts. We review a trial court's decision to admit evidence of prior crimes and other bad acts under an abuse of discretion standard. See State v. Decorso, 1999 UT 57, ¶ 18, 993 P.2d 837. However, "[w]e may affirm if the evidence was admissible on any ground or if erroneous admission of the evidence was harmless error." United States v. McHorse, 179 F.3d 889, 901 (10th Cir.1999).¹

¶ 5 Defendant also claims that his trial counsel was ineffective for failing to present certain evidence and failing to object to the admission of other evidence. "In order to demonstrate ineffective assistance, an appellant must show that trial counsel rendered deficient performance which fell below an objective standard of professional judgment, and that the deficiency was ultimately prejudicial." State v. Pecht, 2002 UT 41, ¶ 41, 48 P.3d 931 (quotations omitted). Ineffective assistance of counsel claims are reviewed as a matter of law, for correctness. See State v. Maestas, 1999 UT 32, ¶ 20, 984 P.2d 376.

ANALYSIS

I. Defendant's Prior Bad Acts

¶ 6 At trial, Defendant relied on a claim of self-defense. In arguing that Defendant used "reasonable force" to "defend himself" against his son's alleged attack, defense counsel stated in opening argument: "[Y]ou're gonna hear that this is a teenage child that [Defendant] has had trouble with, in the past. He was acting up that day. It was, in fact, the child that attacked [Defendant]." Later, when defense counsel questioned M.L. about the reason he moved out of his mother's house, M.L. stated that he had a fight with his mother's boyfriend. In response to this testimony, the trial court called a conference outside the jury's presence where the trial court determined that defense counsel's opening argument statements and his questioning of M.L. had put at issue the victim's propensity for violence, and therefore, the State could present evidence of Defendant's propensity for violence.² After ruling that Defendant had opened the door to M.L.'s propensity for violence under rule 404(a), the trial court appeared to apply rule 405.³ While not specifically mentioning rule 405, the trial court referred to the rule's provisions, and then stated that the State could present reputation or opinion testimony about Defendant's propensity for violence and that, on cross-examination, Defendant could be asked about specific instances of conduct, including past crimes, that demonstrated violence. See Utah R. Evid. 405(a)(b).⁴

¶ 7 Accordingly, the trial court allowed the State to present reputation and opinion testimony from M.L.'s mother that Defendant is violent with children. On cross-examination, M.L.'s mother also testified that, in her opinion, M.L. is violent. The State also asked Defendant upon cross-examination about three specific instances of conduct demonstrating violence. These instances were Defendant's ten-year-old conviction for child abuse against M.L. when M.L. was six-years-old, an assault in 2003, and a domestic violence incident against M.L.'s mother. Defendant's testimony regarding the prior bad acts was brief. Regarding the child abuse, Defendant stated only, "I was, ah, arrested ten years ago for a child abuse context." Defendant asserted that he was incarcerated without pleading guilty and without having a trial. The State did not question him further about the details of the incident. Defendant then denied being involved in an assault in Alaska in 2003, and no further details of that incident were presented. In regard to the domestic violence charge, Defendant stated, "I had a dispute with [M.L.'s] mother" and denied that child endangerment was involved.

¶ 8 The admission of evidence of these three prior bad acts forms the basis for Defendant's first claim on appeal. Specifically, Defendant claims that the trial court abused its discretion in failing specifically to address and comply with the requirements of rule 404(b) before allowing testimony of the three prior acts under rule 405.⁵ Defendant argues that this improper admission prejudiced the jury by "provok[ing] the jury's instinct to punish and caus[ing] the jury to base its decision on something other than the established facts of the case."

¶ 9 The relevant rules of evidence state:

Rule 404(a)(1).

(a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(a)(1) Character of accused. Evidence of a pertinent trait of character offered by an accused . . . or if evidence of a trait of character of the alleged victim of the crime is offered by the accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution.

Utah R. Evid. 404(a).

Rule 404(a)(2).

(a)(2) Character of alleged victim. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same.

Utah R. Evid. 404(a)(2).

Rule 404(b) allows evidence of prior crimes or bad acts under certain circumstances:

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Utah R. Evid. 404(b).

Rule 405. Methods of Proving Character.

(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct. In cases in which character or a trait of character of a person is essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

Utah R. Evid. 405(a)-(b).

¶ 10 Defendant claims on appeal that the trial court abused its discretion by going directly to rule 405 after Defendant opened the door under rule 404(a) without first addressing or complying with the requirements of rule 404(b). Defendant reaches this conclusion by arguing that the "well-established rule of statutory construction provid[es] that specific provisions prevail over general provisions." Defendant argues, "Although Utah R. of Evid. 405(a) does allow `specific instances of conduct' upon cross-examination, prior bad acts are only one type of a specific instance of conduct. Prior bad acts are specifically addressed in Utah R. Evid. 404(b), which is more specific than Rule 405(a)." In making this assertion, Defendant misapprehends the relationship among rules 404(a), 404(b), 405(a), and 405(b). See Utah R. Evid. 404(a)-(b), 405(a)-(b).

¶ 11 Under the framework of the rules of evidence, rule 404(a) is applicable when character is at issue, while rule 404(b) is applicable when character is not at issue; and evidence admitted under rule 404(a) is subject to rule 405. The court in United States v. Roper, 135 F.3d 430 (6th Cir.1998), explained:

Rule 404(a)(1) explicitly provides that "evidence of a person's character or a trait of character" is admissible "for the purpose of proving action in conformity therewith on a...