State v. Bradley

• Decision Date: 18 October 2002
• Docket Number: No. 990515-CA.,990515-CA.
• Citation: 2002 UT App 348,57 P.3d 1139
• Parties: STATE of Utah, Plaintiff and Appellee, v. Milton BRADLEY, Defendant and Appellant.
• Court: Utah Court of Appeals

57 P.3d 1139

2002 UT App 348

STATE of Utah, Plaintiff and Appellee, v. Milton BRADLEY, Defendant and Appellant.

No. 990515-CA.

Court of Appeals of Utah.

October 18, 2002.

John E. Hummel, St. George, and Blaine T. Hofeling, Hofeling & Wayment LLP, Cedar City, for Appellant.

Mark L. Shurtleff, Attorney General, and Jeanne B. Inouye, Assistant Attorney General, Salt Lake City, for Appellee.

Before Judges DAVIS, ORME, and THORNE.

OPINION

DAVIS, Judge:

¶ 1 Appellant Milton Bradley (Bradley) appeals the convictions of one count of aggravated sexual abuse of a child, a first degree felony, in violation of Utah Code Ann. § 76-5-404.1 (1999), and five counts of sodomy on a child, a first degree felony, in violation of Utah Code Ann. § 76-5-403.1 (1999).¹ We affirm.

BACKGROUND

¶ 2 The facts are viewed in a light most favorable to the jury verdict and are recited accordingly. See State v. Loose, 2000 UT 11, ¶ 2, 994 P.2d 1237.

¶ 3 Bradley divorced his wife, Deanna Bradley (Deanna), in March 1997 and moved to Richfield, Utah two months later with his eight-year-old biological son from a previous marriage, J.B. He made arrangements with Deanna to visit with her two children—A.S., his eight-year-old stepdaughter, and S.S., his ten-year-old stepson; to allow her to visit J.B.; and to visit with a daughter produced during their marriage. Deanna had another child from a prior marriage who did not visit with Bradley.

¶ 4 Between June 1997 and July 1998, Bradley performed various sexual acts upon both A.S. and S.S. The children testified to the allegations against Bradley as follows: In March 1998, Bradley used a vibrator on S.S.'s "private part," as well as his own; in April, Bradley "stuck his private part" in S.S.'s "backside"; Bradley placed his mouth on the private parts of both S.S. and A.S. in July; Bradley made S.S. watch a "bad movie" on three or four separate occasions; Bradley placed his penis on A.S.'s vagina and made her "suck his private" on two occasions; Bradley "sucked on [A.S.'s] private" and then performed oral sex on S.S.; Bradley made A.S. shower with him and perform oral sex on him afterwards; and A.S. remembered watching "bad movies" with Bradley about ten or eleven times and that Bradley would make her "suck his private" after the movie. However, A.S. was only able to remember the incident where Bradley performed oral sex on both A.S. and S.S. on the day of trial.

¶ 5 Although the charges involving J.B. were not at issue at trial, J.B. was allowed to testify. J.B. stated that Bradley would place his penis in the "rear end" of J.B. "many times" and would make J.B. perform oral sex. Bradley would also make J.B. watch "nasty movies." When J.B. discovered that A.S. and S.S. accused Bradley of the sexual crimes, J.B. told his mother that "[Bradley] did something bad to me, too."

¶ 6 Bradley denies that any of the incidents occurred. Two days prior to his arrest, he had an argument with Deanna. Bradley testified that Deanna was upset because she may have suspected that Bradley was getting back together with his other ex-wife.

¶ 7 During the preliminary hearing, an amended information was filed to bring additional charges against Bradley. After the information was amended, Bradley was charged with thirty-seven counts of aggravated sexual abuse of a child and thirty-one counts of sodomy on a child, with the vast majority of the various counts stemming from allegations made by A.S. and the rest from those made by S.S. The court asked if defense counsel was prepared to proceed and counsel specifically noted that Bradley was prepared to go forward on the amended information. Also during the preliminary hearing, the court clarified the counts and the period of months covered by each count.

¶ 8 Prior to trial, the State filed a motion for a joinder of trials in order to combine the charges involving allegations by S.S. and A.S. with those by J.B. The trial court ruled that even if there were two trials, the testimony of J.B. would be admissible for a proper, non-character purpose under rule 404(b) of the Utah Rules of Evidence in the first trial covering the allegations by A.S. and S.S. The court ruled that J.B.'s testimony was admissible under rule 404(b) "to establish the defendant's mens rea [or] knowledge, to some extent motive, opportunity, common scheme, but those I do not consider as important as—as the evidence of his knowledge or his mens rea—his intent." The court then took a recess in order to allow Bradley to consider whether he preferred one trial combining J.B.'s allegations with those made by A.S. and S.S. or two separate trials. After the recess, Bradley's trial counsel addressed the court: "Your Honor, I'll inform the court that I spoke to Mr. Bradley considering the pros and cons of having two separate trials, but he would like to have a separate trial." The court then ordered two separate trials: one addressing the allegations made by A.S. and S.S.—with J.B.'s testimony admissible under rule 404(b)—and a second addressing J.B.'s allegations.

¶ 9 At trial, the State in opening argument made the following statement:

You're going to hear from [J.B.]. You're going to hear what he has to say. Those aren't charges that you're dealing with here today, but ... that is testimony that you can and must consider in determining whether the abuse occurred to [A.S.] and [S.S.], what the abuse was and why.

No contemporaneous objection was made to the statement.

¶ 10 After the State rested its case, Bradley made a motion to dismiss and a motion for directed verdict. The trial court rejected the motions and ruled that there was sufficient evidence on which a jury could deliberate. At the conclusion of trial, Bradley made another motion to dismiss. In denying the motion, the trial court ruled that there was sufficient evidence to be weighed by the jury and that the jury had been instructed concerning the children's ages.

¶ 11 The jury found Bradley guilty of two counts of aggravated sexual abuse of a child and four counts of sodomy on a child. Notwithstanding the jury verdict, Bradley was sentenced to an indeterminate term of not less than five years to life for one count of aggravated sexual abuse of a child and a sentence of an indeterminate term of not less than six years to life for five counts of sodomy on a child. The counts of sodomy on a child would run concurrently but would run consecutively to the count of sexual abuse of a child.

ISSUES AND STANDARDS OF REVIEW

¶ 12 Bradley raises several issues on appeal.² First, Bradley argues that the trial court erred in allowing testimony from J.B. concerning prior bad acts under rule 404(b) of the Utah Rules of Evidence. We review a trial court's decision to admit evidence under rule 404(b) for abuse of discretion. See State v. Widdison, 2001 UT 60, ¶ 42, 28 P.3d 1278. Also, "[w]e review the record to determine whether the admission of [prior] bad acts evidence was `scrupulously examined' by the trial judge `in the proper exercise of that discretion.'" State v. Nelson-Waggoner, 2000 UT 59, ¶ 16, 6 P.3d 1120 (citation omitted).

¶ 13 Second, Bradley contends that the State engaged in prosecutorial misconduct because the prosecutor's opening statement instructed the jury that it "must" consider J.B.'s testimony. "When objections are not made at trial and properly preserved, appellate review is under a `plain error' standard." State v. Ellifritz, 835 P.2d 170, 174 (Utah Ct.App.1992).

¶ 14 Third, Bradley argues that the trial court erred in denying Bradley's motions for dismissal because (1) there was a significant variance in dates between the information and the trial testimony, and (2) the testimony of the children was inconsistent. The trial court's decision to deny a motion to dismiss is reviewed for correctness. See State v. Horrocks, 2001 UT App 4, ¶ 10, 17 P.3d 1145. The question of whether adequate notice is given to a defendant, which would defeat a variance challenge, is a question of law that is reviewed for correctness. See State v. Wilcox, 808 P.2d 1028, 1031 (Utah 1991). Because Bradley argues post-verdict that the testimony of the children was inconsistent, Bradley is ultimately challenging the sufficiency of the evidence. When challenging the sufficiency of the evidence supporting a jury verdict, "we view the evidence and all inferences drawn therefrom in a light most favorable to the verdict." State v. Heaps, 2000 UT 5, ¶ 19, 999 P.2d 565.

¶ 15 Next, Bradley contends that trial counsel was ineffective based on the following: (1) failure to object to the prosecutor's opening statement, (2) failure to invoke the exclusionary rule at the preliminary hearing, (3) failure to seek a delay after the amended information was filed, and (4) failure to investigate or call witnesses in favor of Bradley.³ Ineffective assistance of counsel claims are reviewed on appeal as a matter of law. See State v. Maestas, 1999 UT 32, ¶ 20, 984 P.2d 376.

¶ 16 Finally, Bradley argues that the cumulative errors in the case undermine confidence in the verdict of the jury. Whether errors can be classified as cumulatively harmful turns on whether the errors undermine confidence in the jury verdict. See State v. Palmer, 860 P.2d 339, 350 (Utah Ct.App.1993).

ANALYSIS

I. Prior Bad Acts Testimony

¶ 17 Bradley argues that the trial court erred in admitting testimony concerning Bradley's sexual conduct towards J.B. Rule 404(b) of the Utah Rules of Evidence governs the admissibility of prior bad acts evidence and, at the time of the trial, provided:

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. In other words, evidence offered under this rule is admissible if it is relevant for a non-character

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