State v. Cuttler

• Decision Date: 24 December 2015
• Docket Number: No. 20130919.,20130919.
• Citation: 367 P.3d 981
• Parties: STATE of Utah, Petitioner, v. James Robert CUTTLER, Respondent.
• Court: Utah Supreme Court

367 P.3d 981

STATE of Utah, Petitioner,

v.James Robert CUTTLER, Respondent.

No. 20130919.

Supreme Court of Utah.

Dec. 24, 2015.

Sean D. Reyes, Att'y Gen., Jeffrey S. Gray, Asst. Att'y Gen., Salt Lake City, for petitioner.

Aaron P. Dodd, Provo, for respondent.

Kent R. Hart, Salt Lake City, for amicus Utah Association of Criminal Defense Lawyers.

Justice HIMONAS authored the opinion of the Court, in which Chief Justice DURRANT, Associate Chief Justice LEE, and Justice DURHAM joined.

Justice HIMONAS, opinion of the Court:

INTRODUCTION

¶ 1 The State charged the defendant, James Cuttler, with vaginally raping and orally and anally sodomizing his then seven-year-old daughter. To bolster its case, the State sought to introduce evidence pursuant to rule 404(c) of the Utah Rules of Evidence that in 1984 and 1985 Cuttler vaginally raped and orally and anally sodomized his then eight- and ten-year-old daughters, demonstrating "a propensity to commit the crime[s] charged." UTAH R. EVID. 404(c)(1). Cuttler objected. He argued that such evidence was inadmissible under rule "404(c) because it [did] not establish [such] a propensity" and was also inadmissible under rule 403 because its probative value was "clearly outweighed by the danger of unfair prejudice." The district court took a middle tack. It reasoned that evidence of Cuttler's prior sexual abuse of his other daughters met the propensity standard for admission under rule 404(c) but did not pass rule 403 muster because the evidence presented a danger of unfair prejudice that substantially outweighed its probative value. Therefore, it ordered that the evidence "not be admitted." We granted an interlocutory appeal to review the district court's order.

¶ 2 Because the district court abused its discretion in two ways, we reverse. First, the district court applied an incorrect legal standard by requiring that the evidence of prior abuse "overcome" the "factors set forth in State v. Shickles [,] 760 P.2d 291 (Utah 1988)," in order to satisfy rule 403. As we explained in State v. Lucero, albeit in a slightly different context, "courts are bound by the text of rule 403, not the limited list of considerations outlined in Shickles. " 2014 UT 15, ¶ 32, 328 P.3d 841. Thus, the governing legal standard for evaluating whether evidence satisfies rule 403 is the plain language of the rule, nothing more and nothing less. And while the district court's adherence in this case to the Shickles factors is understandable given our prior pronouncements on this subject, it nevertheless represents an application of the wrong legal standard and, therefore, an abuse of discretion. See Johnson v. Johnson, 2014 UT 21, ¶ 24, 330 P.3d 704 ("As such, the district court applied the wrong legal standard, and in so doing, abused its discretion.").¹

¶ 3 Second, the district court also abused its discretion in how it assessed the similarities between the evidence of prior abuse and the current alleged abuse, as well as the potential prejudice from, and time gap since, the evidence of prior abuse. As we explain below, and by way of example, under the district court's analysis the State would effectively be precluded from ever introducing proof that a grandfather charged with sexually molesting a granddaughter had previously sexually molested his daughters in the same manner and when they were the same age as the granddaughter. See infra ¶ 29. We will not handcuff the prosecution from presenting evidence of intergenerational sexual abuse in such a manner.

BACKGROUND

¶ 4 K.C. was seven years old when she went to "her teacher and school principal" and told them that Cuttler, her father, had been sexually molesting her "for the last month." In subsequent interviews at the Utah County Children's Justice Center, K.C. alleged that when she goes to Cuttler's "house on the weekends" to visit him, "he locks the door ... [and] takes off his pants" and her pants and puts his penis, which he nicknamed "his dolly," in her "mouth," "butt hole," and "pee pee."

¶ 5 According to K.C., whenever she would "play" with Cuttler's penis, it would get "stiff" and "hard" and would "stand[ ] straight up." K.C. also told the interviewer at the Children's Justice Center that sometimes "a puky liquid" would come out of his penis. She also described in detail for the interviewer where and how the alleged abuse took place. Finally, K.C. reported that Cuttler would tell her that if she ever told anyone about the abuse, "then they'll take—, then they call the police and take me [Cuttler] away" and the only reminders of him that she would have would be the "things he's given me [K.C.] and pictures."

¶ 6 K.C.'s allegations bear a considerable similarity to the sexual abuse Cuttler inflicted on his daughters J.C. and W.C. years earlier in Hurleyville, New York. It is undisputed that in 1984 Cuttler grabbed J.C., who was nine to ten years old at the time, "by the nap[e] of the neck" and made her perform oral sex on him.² Afterwards, he twisted her arm behind her back and "inserted [his] penis in her rectum." Cuttler inflicted the same sexual abuse on W.C. in 1985 when W.C. was eight years old. Cuttler told the detective investigating his abuse back then that he also believed he had inserted his penis into the girls' vaginas. He further admitted that he had been sexually molesting at least J.C.—and perhaps both girls—for "more than a year." Cuttler referred to his penis by a nickname during this time period, too.

¶ 7 Based on K.C.'s report, the State charged Cuttler with two counts of rape of a child, two counts of sodomy upon a child, and two counts of aggravated sexual abuse of a child, all first-degree felonies. While he was being held in jail, Cuttler was allegedly recorded telling K.C. "that he was at the jail house, ‘where you put me ... by talking to the police,’ and further told her that she won't ever see him again, ... and that ‘I told you to be quiet and not to talk about it.’ " And Cuttler later allegedly told K.C. that he did not "understand why you would tell that."

¶ 8 Early on in this case, the State lodged a Notice of Intent to Introduce Evidence Pursuant to Utah Rules of Evidence 404(b) and 404(c). The notice asserted that Cuttler had "sexually abused his biological daughters, W.C. and J.C., on an ongoing basis at their home in Hurleyville, New York[,] on and before January 6, 1985." The district court refused to admit the proffered evidence under rule 404(b)(2) because it concluded that the evidence failed to satisfy the rule's requirements.³ And while it was of the opinion that the evidence fell within the strictures of rule 404(c), the district court nevertheless declined to admit the proffered evidence under this rule because it felt, after applying the Shickles factors, "that the proffered evidence presents a danger of unfair prejudice which substantially outweighs the probative value of the evidence."

¶ 9 In response to the district court's decision, the State filed a petition for permission to file an interlocutory appeal, which we granted as to two issues. However, only the first issue presently concerns us. See infra ¶ 14. It asks, "Did the trial court apply the correct legal standard when weighing the probative value of rule 404(c) evidence (prior child molestation) against the risk of unfair prejudice under rule 403 ?" Our order granting the State permission to appeal also requested "that the parties address whether the factors for evaluating [r]ule 404(b), set forth in State v. Shickles, ... should be reconsidered or revised."⁴

¶ 10 Prior to briefing, we handed down our decision in State v. Lucero, making plain that it is the language of rule 403 and not Shickles that governs whether a district court should exclude 404(b) evidence pursuant to rule 403. 2014 UT 15, ¶ 32, 328 P.3d 841. In recognition of this, both parties, as well as amicus curiae, the Utah Association of Criminal Defense Lawyers, focused, in part, on Shickles's role in the 404(c) context.

¶ 11 We have jurisdiction of this interlocutory appeal under Utah Code section 78A–3–102(3)(h).

STANDARD OF REVIEW

¶ 12 We afford district courts "a great deal of discretion in determining whether to admit or exclude evidence" and will not overturn an evidentiary ruling absent an abuse of discretion. Gorostieta v. Parkinson, 2000 UT 99, ¶ 14, 17 P.3d 1110. But whether the district "court applied the proper legal standard" in assessing the admissibility of that evidence is a question of law that we review for correctness. Chen v. Stewart, 2004 UT 82, ¶ 19, 100 P.3d 1177. And the admission or exclusion of evidence under the wrong legal standard constitutes an abuse of discretion. Robinson v. Taylor, 2015 UT 69, ¶¶ 8–21, 356 P.3d 1230 ; State v. Larkin, 443 S.W.3d 751, 807 (Tenn.Crim.App.2013) ("We will find that a trial court abused its discretion in admitting or excluding evidence ... when the trial court applied incorrect legal standards...."). A trial court also abuses its discretion under rule 403 if its decision to admit or exclude evidence "is beyond the limits of reasonability." State v. Williams, 2014 UT App 198, ¶ 10, 333 P.3d 1287 (internal quotation marks omitted).

ANALYSIS

¶ 13 The State argues that the district court should have admitted "the prior child molestation evidence" under both rule 404(b) and rule 404(c). According to the State, it was entitled to use the evidence pursuant to rule 404(b)"to rebut a claim of fabrication, i.e., to prove the actus reus of the crime," and pursuant to rule 404(c) to show Cuttler's propensity to sexually abuse his daughters. The State further argued that rule 403 did not bar the prior molestation evidence as the evidence was "more probative than prejudicial." The district court determined that while the evidence "failed to meet the ... requirements ... to justify the admission ... under [r]ule 404(b)," it did satisfy rule 404(c). Nonetheless, the district court excluded the evidence because it did not "overcome the hurdles presented...