State v. Balfour

• Decision Date: 14 November 2008
• Docket Number: No. 20070902-CA.,20070902-CA.
• Citation: 198 P.3d 471,2008 UT App 410
• Parties: STATE of Utah, Plaintiff and Appellee, v. Ozwald BALFOUR, Defendant and Appellant.
• Court: Utah Court of Appeals

198 P.3d 471

2008 UT App 410

STATE of Utah, Plaintiff and Appellee, v. Ozwald BALFOUR, Defendant and Appellant.

No. 20070902-CA.

Court of Appeals of Utah.

November 14, 2008.

Rehearing Denied December 5, 2008.

Third District, Salt Lake Department, 051900856; The Honorable Judith S. Atherton; The Honorable Ann Boyden.¹

Benjamin A. Hamilton, Salt Lake City, for Appellant.

Mark L. Shurtleff, Atty. Gen., and Laura B. Dupaix, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before Judges GREENWOOD, DAVIS, and McHUGH.

OPINION

McHUGH, Judge:

¶ 1 Defendant Ozwald Balfour seeks interlocutory review of the trial court's denial of his three motions: (1) Motion to Quash Bindover; (2) Motion to Sever Counts; and (3) Motion to Disqualify District Attorney's Office. We affirm the trial court's rulings on the first and third motions, and we affirm in part and reverse in part its ruling on the second motion.

BACKGROUND

¶ 2 On February 8, 2005, the State charged Balfour by information with two counts of forcible sexual abuse, a second degree felony, see Utah Code Ann. § 76-5-404 (2003) (current version as amended at Utah Code Ann. § 76-5-404 (Supp.2008)), and one count of attempted forcible sexual abuse, a third degree felony, see id.² The State amended the information on April 21, 2005, to add an additional count of forcible sexual abuse. At the preliminary hearing, held on March 7, 2006, Balfour was bound over for trial on all four counts, which arise from the following allegations.³

I. Count I

¶ 3 On January 21, 2005, M.L. went to the vocational school operated by Balfour to register for classes. Balfour invited M.L. to his office but instead led her into an adjacent room and locked the door. When M.L. asked Balfour why he locked the door, Balfour grabbed M.L.'s shirt and said, "You have two minutes or two seconds to take me or prove to me. . . ." M.L. pushed his hands away and indicated that his advances were unwelcome. Balfour tried to lift M.L.'s shirt while M.L. repeatedly "push[ed] his hands away[,] telling him this wasn't the kind of schooling my father was going to finance." The encounter lasted approximately five minutes, during which time Balfour managed to lift M.L.'s shirt "[e]nough to show [her] flesh" and put his "hand . . . across [her] breast." Once M.L. broke free, she pounded on the door and yelled, "Let me out of here" or "Can anybody hear me?" Balfour then unlocked the door, and M.L. left.

II. Count II

¶ 4 R.O. accompanied M.L. to Balfour's office on January 21, 2005, for what R.O. believed to be an acting job interview. Balfour took R.O. back to his office where they talked about acting and her family for a few minutes. Balfour then took R.O. to an unlit room and shut the door. Balfour said, "You have so many minutes" to "show me how a love scene goes." R.O. refused, stating she was "happily married" and she was "not going to sleep [her] way to the top or to get a job." Balfour then grabbed R.O.'s arm above the elbow with one hand and squeezed her breast over her shirt with the other. R.O. pushed him away and walked out the door.

III. Count III

¶ 5 In August or September 2003, D.J. applied for a web design class at Balfour's media production school. During the application process, Balfour asked D.J. to stand up and turn around so he could look at her. When D.J. questioned Balfour's intentions, he asked D.J. if she was interested in film. D.J. said no and left. Approximately one week later, D.J. began attending classes. When D.J. had difficulty obtaining financial aid, Balfour suggested she earn money by "be[ing] in lingerie and on film" and "do[ing] sexual things." D.J. was uncomfortable with these comments and left the school.⁴

¶ 6 On September 15, 2003, Balfour called D.J. to inquire whether he could bring her some financial aid paperwork that needed to be completed by the next morning. Balfour arrived at D.J.'s home around 8:00 or 9:00 p.m., she invited him in, and they sat on separate couches. After greeting D.J. and placing the paperwork on the coffee table, Balfour walked over to D.J., pinned her shoulders against the couch, and pressed his inner thighs against her outer thighs. Balfour asked if D.J. "was interested in doing anything for the money for the school." D.J. said no and asked Balfour to leave. Instead of leaving, Balfour "dropped his pants," moved his legs between hers, and said, "Come on, come on. . . . Let me, let me." Again D.J. resisted and asked Balfour to leave. Balfour began rubbing his penis against D.J.'s vagina over her spandex shorts, simulating intercourse. Balfour attempted to remove D.J.'s shorts and shirt, but D.J. held on to her clothing. Balfour finally retreated when D.J.'s screams awakened her fourteen-month-old daughter who was asleep in the same room.

IV. Count IV

¶ 7 On January 21, 2005,⁵ R.G. met Balfour while she was shopping at a Wal-Mart near Balfour's office. Learning that R.G. had quit her job, Balfour invited her to his office for employment information. R.G. stopped by Balfour's office that afternoon and completed an application. Balfour then took R.G. to his office, shut the door, and asked if she wanted to take off her jacket. R.G. refused. Balfour asked R.G. to turn around and made comments such as "[n]ice package" and "[y]ou're pretty" while she did so. He then repeated his invitation for her to take off her jacket. When R.G. again declined, Balfour unzipped her jacket, pushed it off her shoulders, pulled her towards him, and tried to lift the tank top she was wearing underneath the jacket. Balfour managed to pull the shirt high enough to expose R.G.'s bra before R.G. was able to push it back down and zip her jacket. R.G. backed away. Following the incident, R.G. chatted briefly with Balfour and had some photographs taken. R.G. then left the facility.

V. Balfour's Prior Relationship with the District Attorney

¶ 8 During the course of plea negotiations, Balfour requested a meeting between his counsel, District Attorney Lohra Miller (the District Attorney), and the assigned state prosecutor. During this meeting, the District Attorney recognized Balfour's name and realized his business was the media company she used, free of charge, during her election campaign. She also realized Balfour was an active member of the Salt Lake County Republican Party, which had campaigned for her election. In response, the District Attorney immediately removed herself from further discussion of the charges. Balfour and his counsel later requested that the entire office be disqualified from prosecuting the case. The District Attorney declined, instead assigning supervisory authority over the prosecution to an assistant district attorney. Balfour's counsel suggested that the issue of whether the entire office should be disqualified be submitted to the Utah State Bar's Ethics Advisory Committee. The assigned assistant district attorney indicated that he would need the District Attorney's approval to bind his office to the committee's decision.

ISSUES AND STANDARDS OF REVIEW

¶ 9 Balfour relies on this court's interpretation of the forcible sexual abuse statute in State v. Jacobs, 2006 UT App 356, 144 P.3d 226, to argue that the district court erred in denying his motion to quash the bindover. To bind over a defendant for trial, the magistrate need only find probable cause for each element of the charge. See State v. Clark, 2001 UT 9, ¶¶ 10, 15, 20 P.3d 300. The bindover standard is intentionally low so that the credibility of witnesses and the truthfulness of the facts are left to the fact-finder. See State v. Virgin, 2006 UT 29, ¶ 21, 137 P.3d 787 (citing State v. Talbot, 972 P.2d 435, 438 (Utah 1998)). "[I]n reviewing a magistrate's bindover decision, an appellate court should afford the decision limited deference." Id. ¶ 26.

¶ 10 Next, Balfour argues that the district court erred in denying his motion to sever the four counts of the amended information. "[T]he grant or denial of severance is a matter within the discretion of the trial judge, so we reverse [a denial] only if the trial judge's refusal to sever charges `is a clear abuse of discretion in that it sacrifices the defendant's right to a fundamentally fair trial.'" State v. Lopez, 789 P.2d 39, 42 (Utah Ct.App.1990) (quoting State v. Pierre, 572 P.2d 1338, 1350 (Utah 1977)). "Under [the abuse of discretion] standard, we will not reverse . . . unless the decision exceeds the limits of reasonability." State v. Clopten, 2008 UT App 205, ¶ 12, 186 P.3d 1004 (internal quotation marks omitted).

¶ 11 Finally, Balfour challenges the trial court's decision to deny his motion to disqualify the entire Salt Lake County District Attorney's Office. Trial courts are generally allowed considerable discretion in granting or denying motions to disqualify counsel, and such decisions will only be overturned when that discretion is exceeded. See State v. Wareham, 2006 UT App 327, ¶ 10, 143 P.3d 302. "However, due to the `special interest in administering the law governing attorney ethical rules,' a trial court's discretion in situations implicating those rules is `limited.'" Id. (quoting Houghton v. Utah Dep't of Health, 962 P.2d 58, 61 (Utah 1998)). Thus, attorney disqualifications are reviewed as mixed questions of law and fact. See United States v. Bolden, 353 F.3d 870, 878 (10th Cir.2003). "First, we review the district court's factual conclusions under a clear error standard. Second, we review the district court's legal interpretation of particular ethical norms under a de novo standard when that interpretation implicates important constitutional rights." Id. (citation omitted).

ANALYSIS

I. Motion to Quash Bindover

¶ 12 To issue a bindover, the magistrate must find "probable cause to believe that the crime charged has been committed and that the defendant has committed it." Utah R.Crim. P. 7(i)(2). The bindover standard, however, "`is not that of a rubber stamp for the prosecution.'" Clark, 2001 UT 9, ¶ 10, 20...