State v. Bravo

• Decision Date: 23 January 2015
• Docket Number: No. 20120305–CA.,20120305–CA.
• Citation: 343 P.3d 306,2015 UT App 17
• Parties: STATE of Utah, Plaintiff and Appellee, v. Peter Luna BRAVO III, Defendant and Appellant.
• Court: Utah Court of Appeals

343 P.3d 306

2015 UT App 17

STATE of Utah, Plaintiff and Appellee

v.Peter Luna BRAVO III, Defendant and Appellant.

No. 20120305–CA.

Court of Appeals of Utah.

Jan. 23, 2015.

Peter A. Daines and Joanna E. Landau, Attorneys for Appellant.

Sean D. Reyes, Deborah L. Bulkeley, and Ryan D. Tenney, Salt Lake City, Attorneys for Appellee.

Judge JOHN A. PEARCE authored this Opinion, in which Judges J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.

Opinion

PEARCE, Judge:

¶ 1 Peter Luna Bravo III appeals from his conviction of aggravated burglary, rape, and forcible sodomy. Bravo argues that the district court erred when it excluded evidence of his sexual history with the victim (Victim) under rule 412 of the Utah Rules of Evidence. We conclude that, in large measure, Bravo failed to proffer specific instances of Victim's sexual behavior as the rule requires. Because Bravo failed to provide the district court with the information it needed to perform a meaningful analysis under rule 403 of the Utah Rules of Evidence, the court did not exceed the bounds of its discretion in excluding the evidence. We affirm.

BACKGROUND¹

¶ 2 Bravo met Victim in 2001. The two became romantically involved and eventually married. They divorced in 2008 but continued their sexual relationship. In August 2010, the couple fought, the police were called, and Victim told Bravo to leave and never return.

¶ 3 Despite Victim's command to stay away, a few weeks later Bravo visited her apartment and knocked on the door. Believing he was a neighbor looking to borrow a cigarette, Victim cracked the door open. Bravo pushed his way in and pinned her to the ground. He grabbed a dog leash and held her down by pressing the leash across her neck. He forcibly penetrated her vaginally. He then slung her over his shoulder, carried her to her bedroom, and threw her on the bed. Victim struggled to escape, but Bravo restrained her, flipped her onto her stomach, and penetrated her anally. He became frustrated when he was unable to ejaculate and left, punching and breaking a window on the way out.

¶ 4 The State charged Bravo with aggravated burglary, rape, and forcible sodomy. Before trial, Bravo moved to admit evidence of Victim's prior sexual activity pursuant to rule 412 of the Utah Rules of Evidence. In his written motion, Bravo proffered that during their marriage, he and Victim “consensually engaged in what would generally be considered ‘rough sex,’ including but not limited to autoerotic asphyxiation, sodomy, and numerous other sex acts well outside this community's standards for sexual behavior.” He further proffered that even after their divorce, the couple “not infrequently continued to get together for sexual escapades ... consistent with their sexual activities during their marriage.” Bravo's motion asserted that this evidence should be admitted because it “supports the defense of consent” and because its exclusion would “violate [his] fundamental due process rights under the Utah and U.S. Constitutions.” The district court scheduled an in camera hearing to address the rule 412 motion.

¶ 5 Bravo was unable to attend the scheduled hearing, which proceeded in his absence. The State argued that Bravo's proposed testimony was too general to meet rule 412's requirements or to allow the State to prepare properly for trial. Bravo's counsel argued that no decision on the matter should be reached until Bravo was present. The district court agreed to delay ruling until Bravo could attend but indicated that it was inclined to allow testimony that Bravo and Victim's sexual activity continued after their marriage ended. The district court expressed skepticism that Bravo's proposed “rough sex” testimony would be admissible, explaining,

[I]f it's just the before and after marriage we did certain “rough” things including asphyxiation and, and sodomy it just doesn't seem relevant when the charge is that Mr. Bravo on this particular occasion forced his way into the complaining witness's home, grabbed her by the neck and forced her to the floor, disrobed her against her will, forced himself upon her, put a dog leash around her neck, drug her into the bedroom and then, and then penetrated [her] anally. I just don't see how, how the fact that they may have [had] some form of unconventional sex before reflects that the victim consented to this behavior on this occasion.

The district court reserved the question until trial so that Bravo could be present.

¶ 6 On the first day of trial, the district court revisited the rule 412 motion. The district court again stated its belief that testimony about prior rough sex would not be relevant to show consent, but the court invited Bravo's counsel to proffer specific prior acts and explain why those acts would be relevant to demonstrate consent. Bravo's counsel responded that Bravo and Victim's “typical day-in-day-out sexual routines included bondage, masochism, anal sex and pretty much everything else one could think of without going into more detail on the record.” Counsel argued that Victim's allegation of anal sex was consistent with the couple's long-term sexual history and that her testimony about the dog leash “would go to the autoerotic asphyxiation as well [as] possible bondage incidents.” Counsel concluded, “[I]n a nutshell Mr. Bravo would testify that the events that happened on the night in question in this case were, if anything, tame for what had been the norm for their relationship....”

¶ 7 The district court ruled that Bravo could testify that he and Victim continued to have sex after their divorce. However, the district court excluded Bravo's proffered testimony about the couple's prior sex practices, ruling, “I just don't see the relevance and even if there is a sliver of relevance in there ... the relevance would be outweighed by the danger of unfair prejudice.”

¶ 8 At trial, Bravo testified that the events Victim described had not occurred in the place or manner Victim portrayed. Bravo testified that he had not gone to Victim's home, but that Victim had come to his hotel room where they engaged in consensual and “strictly vaginal” sex. He also testified that he had not broken the window at Victim's apartment and that he had witnessed one of Victim's friends break it on a separate occasion.

¶ 9 The jury convicted Bravo of aggravated burglary, rape, and forcible sodomy. The district court sentenced him to three concurrent five-years-to-life prison terms. Bravo appeals.

ISSUE AND STANDARD OF REVIEW

¶ 10 Bravo argues that the district court committed reversible error when it excluded evidence of the sexual history he shared with Victim. We review the district court's evidentiary rulings for an abuse of discretion.See State v. Clark, 2009 UT App 252, ¶ 10, 219 P.3d 631. We review the district court's interpretation of evidentiary rules for correctness, giving no deference to the district court's interpretation. See State v. Richardson, 2013 UT 50, ¶ 32, 308 P.3d 526.

ANALYSIS

¶ 11 Rule 412 of the Utah Rules of Evidence generally prohibits the admission of evidence of a victim's sexual behavior or sexual predisposition in any criminal proceeding involving alleged sexual misconduct. The rule contains several exceptions, one of which permits the admission of “evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent,” so long as that evidence “is otherwise admissible under [the Utah Rules of Evidence].” Utah R. Evid. 412(b)(2). Bravo argues that the evidence he proffered regarding his and Victim's prior sexual activities should have been admitted under rule 412(b)(2) and that the district court's exclusion of the evidence constitutes reversible error.²

I. State v. Richardson and Legal Standards for Admission of Rule 412 Evidence

¶ 12 After Bravo filed his initial appellate brief, but before the State responded, the Utah Supreme Court decided State v. Richardson, 2013 UT 50, 308 P.3d 526.³ In Richardson, the defendant was convicted on rape and sodomy charges arising in part from the allegation that he had forced a woman to have anal sex with him while she was menstruating. See id. ¶ 21. The supreme court reversed the convictions because the district court had excluded evidence that the defendant and the alleged victim routinely engaged in consensual anal sex while the victim was menstruating. See id. Richardson applied rules 401 and 402 of the Utah Rules of Evidence in the specific context of rule 412(b)(2)'s consent exception, and the case guides our analysis of Bravo's rule 412(b)(2) argument.

¶ 13 In Richardson, the defendant sought to admit the sexual history evidence to “ ‘prove consent’ ” pursuant to rule 412(b)(2). 2003 UT 50, ¶ 21, 84 P.3d 1134. In light of this purpose, the supreme court concluded that the proffered evidence fell “squarely within” the rule 412(b)(2) consent exception. Thus, “the only remaining question [was] whether [the] evidence was ‘otherwise admissible’ under the rules of evidence.” Id.

¶ 14 The district court in Richardson had excluded the evidence because it was “ ‘not sufficiently relevant to be admissible.’ ” Id. ¶ 22. However, the supreme court agreed with the defendant that “there is no ‘heightened relevancy test for evidence of specific instances of sexual activity between an alleged victim and the accused’ ” and that the evidence “was relevant under the lenient standards of rules 401 and 402 [of the Utah Rules of Evidence].” Id.; see also Utah R. Evid. 401 (defining relevant evidence as evidence having any tendency to make a fact of consequence more or less probable than it would be without the evidence); Utah R. Evid. 402 (declaring relevant evidence presumptively admissible and irrelevant evidence inadmissible).

¶ 15 The supreme court stated that, together, rules 401 and 402 “establish a very low bar that deems even evidence with the slightest probative value relevant and presumptively admissible.” Ric...