State v. Aleh

• Citation: 2015 UT App 195,357 P.3d 12
• Decision Date: 06 August 2015
• Docket Number: No. 20140178–CA.,20140178–CA.
• Court: Utah Court of Appeals
• Parties: STATE of Utah, Appellee, v. Athimbayo ALEH, Appellant.

357 P.3d 12

2015 UT App 195

STATE of Utah, Appellee

v.Athimbayo ALEH, Appellant.

No. 20140178–CA.

Court of Appeals of Utah.

Aug. 6, 2015.

Anthony V. Rippa, Provo, Attorney for Appellant.

Sean D. Reyes and Christopher D. Ballard, Christopher D. Ballard, Salt Lake City, Attorneys for Appellee.

Judge J. FREDERIC VOROS JR. authored this Opinion, in which Judges GREGORY K. ORME and STEPHEN L. ROTH concurred.

Opinion

VOROS, Judge:

¶ 1 A jury convicted Athimbayo Aleh of robbery and theft, second degree felonies, and assault, unlawful detention, and sexual solicitation, class B misdemeanors. Aleh appeals. We affirm.

BACKGROUND¹

Waiver of Preliminary Hearing

¶ 2 At a roll-call hearing, Aleh's original counsel stated that Aleh intended to waive his preliminary hearing. The court asked whether counsel had explained to Aleh what the waiver meant and what it entailed. Counsel responded that he had. Specifically, counsel explained to Aleh “that he has the right to have a preliminary hearing,” that the State has the burden of establishing by a probable cause standard that Aleh committed the charged crimes, and “that he would be waiving just the right to that preliminary hearing in anticipation of accepting an offer that's being extended by the State.” The court then asked Aleh whether he was prepared to waive his right to a preliminary hearing. Aleh responded, “Yes, Sir.” When the court asked whether he had any questions Aleh responded, “Yes. Okay. No questions.” The court bound Aleh over on all charges.

¶ 3 However, the statements of the court and counsel at the roll-call hearing confused Aleh “as to the bindover and the charges in the case.” Aleh apparently believed that when he waived his preliminary hearing, the court would bind him over on the three misdemeanors only and that the felonies would be dismissed. Aleh's confusion surrounding the dismissal of the felonies was understandable. At the roll-call hearing, the State acknowledged that due to “some legal issues on the first two [felony] counts ... the State would have a very difficult time proving” those counts. And the court stated, “So, the bind over is with the three misdemeanor counts only, is that correct” The State and Aleh's counsel agreed. However, the court clerk asked, “Do you want me just to bind everything over to [Judge] Barrett and, then, from there, go to the misdemeanor” ... So, he can dismiss on it? The court, the State, and Aleh's counsel all agreed. The court bound Aleh over on all charges.

¶ 4 Represented by new counsel, Aleh moved to set aside his waiver of the preliminary hearing. The court denied Aleh's motion on the ground that Aleh had knowingly and voluntarily waived his right to a preliminary hearing. The court found that Aleh's original counsel had adequately explained the plea deal offered by the State: “[T]he State would dismiss the two felony charges if [Aleh] would enter a guilty plea to the three counts of class B misdemeanors.” In other words, the dismissal of the felony charges against Aleh hinged on his pleading guilty to the misdemeanor charges. Thus, because Aleh rejected the State's plea deal, the court found that Aleh's “claim that the two felony counts were in fact dismissed and the case was bound over on the misdemeanors is not an accurate reflection of what occurred.”

¶ 5 We denied Aleh's petition seeking interlocutory review, and the supreme court denied his petition for writ of certiorari. Aleh proceeded to trial on all charges.

Trial

¶ 6 At trial, Aleh's neighbor testified that on the night in question Aleh gave him a ride to meet a girlfriend at a motel. At the motel, after getting a key to the room and discovering the girlfriend was not there, Aleh and his neighbor “decided to hang out ... in the motel.” Aleh then called an escort and arranged for her to meet him at the motel in exchange for cash.

¶ 7 When the escort arrived, Aleh and another man were in the motel room. The other man, presumably Aleh's neighbor, left and the escort told Aleh that “it's $150 for the hour.” Because Aleh told her he only had $100, she told him that she “could stay for half the time, or less.” After Aleh gave her the money, the escort went into the bathroom to change clothes. When she came out she asked Aleh “what he wanted to do with his time.” She testified, “He asked for sex. I told him that that's not what we do. What I can do is a body rub or a striptease.” Aleh then asked for his money back, and the escort told him, “I don't do refunds.”

¶ 8 Aleh looked angry and became very insistent that the escort give him his money back. The escort, out of a sense of caution and for “self-defense,” backed away and then retreated into the bathroom to get dressed. While in the bathroom, she called her bouncer to “tell him there was a situation.” Aleh then “busted through the bathroom door.” The escort, trying to create distance between herself and Aleh, got into the bathtub. Aleh took her cell phone. She crouched down into the tub and huddled over her purse to try to get her handgun out. She retrieved the gun and chambered a round, but Aleh came down on top of her. During the struggle, the gun discharged in the bathtub. The escort then succeeded in ejecting the magazine from the gun; she let go of the gun, Aleh stepped away, and she regained her footing. At this point, the escort returned the $100 and asked Aleh to return her phone. Aleh refused and tried to trap the escort in the bathroom. The escort braced her feet against the bathroom door so that Aleh could not lock her in.

¶ 9 When Aleh moved away from the door, the escort came out of the bathroom and saw Aleh standing between her and the front door holding her phone, her gun, and the magazine. The escort again asked Aleh to give her phone back; when Aleh refused, she grabbed it out of his hands. Another fight ensued. Aleh threw her into a shoe rack, and she tried to find protection by hiding under a chair. Aleh tried to move the chair, but then “stopped [and] he just stood there for a minute and then he ran out the front door.” The escort crawled to the front door to call for her bouncer, and then she saw the police.

¶ 10 At trial, Aleh gave a different version of events. Aleh testified that he gave the escort $100 to “hang out, like to have fun, you know, like she can dance for me, just strip. Like ... when you go to [the] strip club.” He then testified that when the escort came out of the bathroom in her underwear she tried to sell him the “full service.” When Aleh came to understand that “full service” included sex, he told her, “I don't want to do this,” and asked for his money back. He testified that he walked with her to the bathroom, and he realized “she was struggling with something inside her purse.” Aleh testified that he thought she might have a Taser in her purse and that she would tase him and steal his wallet. So, he testified, when he saw something metal emerge from her purse, he just grabbed it, not even realizing it was a gun until it went off. After Aleh took the gun away, he gave the escort her phone back and left the motel room.

¶ 11 Aleh was charged with robbery and theft, second degree felonies, and assault, unlawful detention, and sexual solicitation, class B misdemeanors. A jury convicted him as charged. Aleh appeals.

ISSUES ON APPEAL

¶ 12 Aleh raises two issues on appeal. First, Aleh contends that the trial court erred in denying his motion to withdraw his waiver of the preliminary hearing. Second, Aleh contends that the trial court erred by not allowing him to cross-examine the escort about whether she worked as a prostitute and why she stopped working as an escort after the incident.

ANALYSIS

I. Preliminary Hearing

¶ 13 Aleh contends that the trial court erred in denying his motion to withdraw the waiver of his right to a preliminary hearing. Aleh argues that he did not knowingly, intelligently, or voluntarily waive his right to a preliminary hearing, and thus the trial court's refusal to reinstate his right to a preliminary hearing violated his constitutional rights. We review the trial court's denial of Aleh's motion to withdraw his waiver for correctness. See State v. Hernandez, 2011 UT 70, ¶ 3, 268 P.3d 822.

¶ 14 “The fundamental purpose served by the preliminary examination is the ferreting out of groundless and improvident prosecutions.” State v. Anderson, 612 P.2d 778, 783 (Utah 1980), superseded on other grounds by constitutional amendment, Utah Const. art. I, § 12 (1995). Doing so “relieves the accused from the substantial degradation and expense incident to a modern criminal trial when the charges against him are unwarranted or the evidence insufficient.” Id. at 784. Historically, our courts viewed the preliminary hearing as serving secondarily as “a discovery device in which the defendant is not only informed of the nature of the State's case ... but is provided a means by which he can discover and preserve favorable evidence.” Id. However, a constitutional amendment eliminated this secondary purpose in 1995. That constitutional amendment declared that the function of the preliminary hearing “is limited to determining whether probable cause exists unless otherwise provided by statute.” Utah Const. art. I, § 12. No statute provides otherwise. See Utah Code Ann. § 78A–2–220(1)(f) (LexisNexis 2012) (providing that a magistrate has the authority to conduct a preliminary examination “to determine probable cause”); see also State v. Timmerman, 2009 UT 58, ¶¶ 14–15, 218 P.3d 590 ; State v. Arghittu, 2015 UT App 22, ¶ 30, 343 P.3d 709. Accordingly, the preliminary hearing's erstwhile primary purpose has become its sole purpose: determining whether probable cause exists.

¶ 15 At a preliminary hearing, “the prosecution has the burden of producing believable evidence of all the elements of the crime charged, but this evidence does not need to be capable of supporting a finding of guilt beyond a reasonable doubt.” State v. Virgin, 2006 UT 29, ¶ 20, 137 P.3d 787 (citation and internal...