State v. Brotherson

• Citation: 467 P.3d 943
• Decision Date: 18 June 2020
• Docket Number: No. 20190262-CA,20190262-CA
• Parties: STATE of Utah, Appellee, v. David Daniel BROTHERSON, Appellant.
• Court: Court of Appeals of Utah

467 P.3d 943

STATE of Utah, Appellee,

v.David Daniel BROTHERSON, Appellant.

No. 20190262-CA

Court of Appeals of Utah.

Filed June 18, 2020

Petition for Rehearing Denied July 9, 2020

Earl G. Xaiz, Salt Lake City, Attorney for Appellant

Sean D. Reyes and Kris C. Leonard, Salt Lake City, Attorneys for Appellee

Judge Gregory K. Orme authored this Opinion, in which Judges Kate Appleby and David N. Mortensen concurred.

Opinion

ORME, Judge:

¶1 Appellant David Daniel Brotherson argues that the district court exceeded its discretion when it declined to reduce his felony convictions of burglary and aggravated assault to class A misdemeanors. He further argues that by defending the district court's ruling on appeal, the State breached the plea agreement it entered into below. We reject both arguments and affirm.

BACKGROUND

The Plea Agreement

¶2 In May 2016, the State charged Brotherson with burglary, rape, and forcible sexual abuse. Brotherson agreed to plead guilty to burglary, a second-degree felony, and aggravated assault, a third-degree felony. In exchange, the prosecutor agreed to "recommend[ ] probation" and "stipulate[d] to a two level reduction on [the burglary conviction], and a one level reduction [on the aggravated assault conviction], upon [Brotherson's] successful completion of probation, pursuant to § 76-3-402 Utah Code," which would have resulted in both counts being reduced to class A misdemeanors. The factual basis of the plea was as follows:

On May 19, 2016, [Brotherson] and others had been to the victim's home for a get together. [Brotherson] and the others left the home later on, but [Brotherson] then returned to the home, reentered the home through an unlocked door, and entered the victim's bedroom without her consent. He then engaged in sexual activity, wherein he believed she was consenting. During the course of this activity, his conduct, because of the circumstances, created a "substantial risk of serious bodily injury."

¶3 Additionally, during the plea colloquy,¹ the prosecutor offered a further factual basis for the plea, stating that

[Brotherson] had been at the victim's house previously that evening and left. He texted her and communicated with her that he wanted to come back. She told him not to come back. She went to bed. He entered the house without permission, got into bed with her, touched her breasts and vagina, and then had intercourse with her without consent.

¶4 Before entering into the plea agreement, however, Brotherson underwent a psychosexual evaluation in which he proffered a different version of the facts. The doctor administering the evaluation wrote that Brotherson told him that

he dropped off his friend and called the woman whose house they had been at, and, "We were texting back and forth." He indicated they talked about him coming over. He questioned her, asking if she was sure she wanted him to come over. He stated that she replied, telling him she had just taken a sleeping pill, and, "If I was going to come over, to do it quick." ... He said he drove back to her house and knocked on her door. He stated she answered the door, saying, "She was in a t-shirt and panties. She called me back to her room. There was a light on. I laid on the bed and she was standing up doing something and we were talking back and forth." He said he was lying on his side, and, "She laid next to me like we were spooning." He indicated she took his arm and laid it across her stomach, saying, "We were laying there. My crotch was next to her behind and she started to move around a little bit and I thought I heard her moan. The next thing, we were both getting my penis out and I stuck it between her legs above her panties, and we started to grind." He contended he never heard her say "no." He continued by saying, "She never told me to stop. We were in a difficult position so when I repositioned myself I got myself hard and I got in the same position and, as I started to ejaculate, I took off my shirt and cleaned off the semen and laid there for a few minutes and then I said I was going to go home." He stated he then picked up his clothing and left. He reported that during their interaction, "I can't remember if I touched her breasts. I could have but it wouldn't have been for very long." He stated that at no point did he grab her throat or make any threatening statements towards her. He contended he was never on top of her. He reported their relationship is complicated by the fact that they had been sexually active previously, months earlier, while they were at his house.

¶5 During this evaluation, the doctor noted that "Brotherson does not report having committed a sex offense." The doctor also noted that Brotherson "does not report having used force in a sexual encounter" and "believes the sexual behavior happened because the person already had sexual experience and wanted and liked the sex things that happened." The doctor concluded that if Brotherson "had acted with force, violence, or without consent, he would need to participate in treatment ... [but] it is unclear this had been the case." The doctor suggested it would be "worthwhile for ... Brotherson to voluntarily submit to a polygraph examination to explore this further," because if he "has not committed the offense he has been accused of, there would be less need for him to participate in sex offender specific treatment."

¶6 The court accepted Brotherson's plea and ordered Adult Probation and Parole (AP&P) to prepare a presentence investigation report (PSIR). As part of that report, Brotherson provided the following written statement:

I called [the victim] and texted her about coming back to her house. We texted back and forth and I ended up going back to her house and entered her home through the side door that we had entered through earlier that night. I walked back to her room and [the victim] was there and I layed down on her bed. We talked for a few minutes and then she laid down beside me. I began to touch [the victim] and began to grind on her from behind. Thinking everything was consensual. I continued to grind with her from behind and at this time my penis was in between her legs rubbing on the outside of her panties. I know from [the victim] that she was not ok with this. I admit my behavior [w]as not normal for me and regret and feel very sorry for ever[ ] going back to her house. After grinding I ejaculated on her leg and took my shirt off and cleaned her off. Still thinking everything was ok I laid there for a few minutes then gathered my things and left.

¶7 The investigator who prepared the PSIR informed the court that Brotherson denied having any sexual interaction with the victim before this offense, which contradicted the story he told the doctor during his psychosexual evaluation. Determining that Brotherson not only entered the home intending to commit a sexual act, but also committed that act, the investigator deviated from the sentencing guidelines, which recommended no imprisonment, and recommended prison time.

Sentencing and Probation

¶8 At sentencing, the district court stated that although "this is a heinous offense," it would not impose prison time "because there is no criminal history that [would warrant] an immediate commitment to prison." The court noted, however, that the psychosexual evaluation was "really no help at all" because "[t]he results were inconclusive, [and] the facts, apparently that were reported to the examiner differ from the facts that have been admitted to." The court then sentenced Brotherson to a suspended prison sentence and placed him on probation for thirty-six months. As a condition of probation, the court ordered Brotherson to serve one year in jail, even though the sentencing matrix recommended 0–210 days in jail, and to complete any treatment AP&P recommended, including taking a polygraph exam if required.

¶9 Approximately eight months into his one-year condition-of-probation incarceration, Brotherson was released from jail for good behavior. He then submitted to a polygraph exam. During the exam, "Brotherson was asked if he forced his victim to engage in sexual contact with him and if he let himself into the victim's house." Brotherson answered in the negative to both questions, and his "responses scored as ‘no significant responses observed,’ " so he "was determined to be telling the truth by the polygrapher." After his release from jail, Brotherson also entered sex-offender treatment. This treatment was terminated after only four weeks, when the psychologist in charge of Brotherson's therapy categorized him as "very low risk" and deemed that he had no need for further treatment based on the results of the polygraph test and other assessments.

¶10 Seven months after Brotherson's release from jail, AP&P requested that the district court terminate his probation early on the grounds that he "has completed everything asked of him and has done so quickly, remained crime free and probation violation free." The court denied the request because it "was not satisfied that sex therapy had been as ‘successful’ as the doctors had declared since their conclusion seem[s] rooted in reliance upon ‘no response’ to questions that directly contradicted findings admitted and then made in connection with the sentencing in this case."

¶11 Approximately four months later, Brotherson moved the district court to terminate his probation in accordance with Utah Code section 64-13-21(7) on the ground that he had had no probation violations for eighteen months. The court heard argument on the matter and granted the motion, terminating Brotherson's probation as successfully completed.

402 Reduction

¶12 Brotherson then filed the motion at issue in this appeal—which the prosecutor stipulated to in accordance with the plea agreement—requesting that the district court reduce his burglary and aggravated assault convictions to class A misdemeanors pursuant to Utah Code section 76-3-402. Brotherson argued he was entitled to the reduction...