State v. Davis, No. 20110204–CA.

CourtCourt of Appeals of Utah
Writing for the CourtVOROS
Citation743 Utah Adv. Rep. 7,311 P.3d 538
PartiesSTATE of Utah, Plaintiff and Appellee, v. Eric Joseph DAVIS, Defendant and Appellant.
Docket NumberNo. 20110204–CA.
Decision Date19 September 2013

311 P.3d 538
743 Utah Adv. Rep. 7

STATE of Utah, Plaintiff and Appellee,
v.
Eric Joseph DAVIS, Defendant and Appellant.

No. 20110204–CA.

Court of Appeals of Utah.

Sept. 19, 2013.


[311 P.3d 544]


Joan C. Watt, Michael R. Sikora, and Maren E. Larson, for Appellant.

John E. Swallow and Christopher D. Ballard, Salt Lake City, for Appellee.


Judge J. FREDERIC VOROS JR. authored this Opinion, in which Judge CAROLYN B. McHUGH concurred. Judge WILLIAM A. THORNE JR.1 concurred, with opinion.

VOROS, Judge:

¶ 1 Eric Joseph Davis appeals from his convictions for object rape and forcible sodomy. Utah Code Ann. §§ 76–5–402.2,–403(2) (LexisNexis 2012). He raises three grounds for reversing his convictions: (1) alleged prosecutorial misconduct in cross-examining Davis and in closing argument, (2) evidence concerning a post-offense order and protective measures, and (3) a supplemental jury instruction concerning the prosecutor's charging discretion. We affirm.

BACKGROUND 2

¶ 2 Davis and C.D. regularly used sex toys together. One day, Davis called C.D. and told her he had “a surprise” for her. He later showed her an “enormous” dildo. Labeled “XXL,” its size was “extremely intimidating” to C.D. She objected to it and asked Davis to return it to the store. According to C.D., Davis became “quiet” and “distant” and drank several beers with an eight-percent alcohol content. Davis admitted that he drank about six beers that evening.

¶ 3 Later that evening, C.D. took a bath. She testified that, while she was in the bathtub, Davis brought the dildo into the bathroom. C.D. told him, “Don't get that near me. No way. You're not using that on me. Hell, no.” C.D. further testified that Davis forcibly pulled her from the bathtub, bent her over a low wall in the bathroom, pushed her face into the sink, and forcibly inserted the dildo into her vagina.

¶ 4 C.D. “scream[ed] in pain and ask[ed Davis] to stop” and unsuccessfully tried to remove the dildo herself. Davis told C.D. that “if [she] didn't quit crying, ... he'd give [her] something to cry about.” Davis also forced his penis and the dildo into C.D.'s anus. Eventually Davis stopped using the dildo on C.D. and she cooperated with Davis's further sexual requests, hoping that he “would not try to use [the dildo] on [her] again.” At the time, Davis was six feet two inches tall and weighed 250 pounds; C.D. was five feet six inches tall and weighed 120 pounds.

¶ 5 The next morning, C.D. went to her job at a medical facility and, on her lunch break, called her mother, who convinced C.D. to report the incident. After work, C.D. called the police. The responding officer noted that C.D. was initially “somber” and “almost unemotional” but “broke down crying” on several occasions. The officer took C.D.'s statement before escorting her to the hospital for a sexual-assault examination.

¶ 6 At the hospital, the attending nurse (Nurse) documented C.D.'s bruises and other injuries with photographs and medical diagrams. Nurse noted a bruise on C.D.'s cervix that was likely caused by “a lot” of blunt force. Nurse also found a laceration on C.D.'s anus as well as visible redness around C.D.'s genitals and anus. C.D. had bruises on her thighs, hips, knees, left arm, and the back of her left hand. C.D. reported vaginal, rectal, abdominal, and hip pain to Nurse.

¶ 7 At trial, Davis testified that the encounter was entirely consensual. He also testified that C.D.'s only objection to the dildo was the amount of money he had spent on it because he was unemployed at the time of these events. He speculated that C.D. was motivated to falsely accuse him because, he claimed, she was seeing someone else.

[311 P.3d 545]

Davis did not introduce evidence to support this theory.

ISSUES AND STANDARDS OF REVIEW

¶ 8 First, Davis contends that the prosecutor committed misconduct by mischaracterizing the reasonable doubt standard, improperly commenting on the evidence, referring to statistics not in the evidence, and shifting the burden of proof to Davis.

¶ 9 Davis preserved some of these claims by presenting them “to the trial court in such a way that the trial court ha[d] an opportunity to rule” on them. 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (citation and internal quotation marks omitted). Traditionally, when such claims are preserved, we have reviewed the trial court's rulings on “prosecutorial misconduct claims for an abuse of discretion.” State v. Kohl, 2000 UT 35, ¶ 22, 999 P.2d 7.

¶ 10 But what standard applies in determining whether unpreserved prosecutorial misconduct claims rise to the level of reversible error is less clear. Unpreserved claims are generally subject to the plain error standard of review, which requires the appellant to show “(i) An error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful,....” See State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). It is tempting to conclude that if a prosecutor's comments constitute garden-variety misconduct, “the defendant must show that the jury was ‘probably influenced by those remarks,’ ” State v. Powell, 2007 UT 9, ¶ 36, 154 P.3d 788 (quoting State v. Troy, 688 P.2d 483, 486 (Utah 1984)), whereas if “a prosecutor's comments constituted a constitutional violation,” the reviewing court will reverse unless “the constitutional error was harmless beyond a reasonable doubt.” State v. Tillman, 750 P.2d 546, 555 (Utah 1987) (internal quotation marks omitted) (citing Chapman v. California, 386 U.S. 18, 23–24, 87 S.Ct. 824, 17 L.Ed.2d 705, (1967); Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)).

¶ 11 However, as we recently explained, questions regarding the prejudice standard to be applied in prosecutorial misconduct cases “are not readily resolvable under our current precedent.” State v. Wright, 2013 UT App 142, ¶ 41 n. 6, 304 P.3d 887. In particular, our case law “is not entirely clear” on “what standard of harmlessness applies, and who bears the burden of proof, when a claim of constitutional error is raised within the plain error context.” State v. Cox, 2012 UT App 234, ¶ 15 n. 2, 286 P.3d 15 (Voros, J., concurring in part and concurring in the result in part).

¶ 12 Accordingly, in Wright we took the cautious approach of “assuming that the harmless beyond a reasonable doubt standard applies, even though the challenge to the error was unpreserved and does not involve a violation of a fundamental constitutional right.” 2013 UT App 142, ¶ 41 n. 6, 304 P.3d 887. Because, as in Wright, the briefing here does not focus on these distinctions, and because in any event the choice of prejudice standard is not outcome determinative, we follow Wright and apply the harmless beyond a reasonable doubt standard to Davis's prosecutorial misconduct claims. See State v. Menzies, 889 P.2d 393, 399 n. 3 (Utah 1994) (explaining horizontal stare decisis).

¶ 13 Second, Davis contends that the trial court abused its discretion by admitting irrelevant testimony into evidence. “A trial court has broad discretion in deciding whether evidence is relevant, and we review a trial court's relevance determination for abuse of discretion.” State v. Fedorowicz, 2002 UT 67, ¶ 32, 52 P.3d 1194.

¶ 14 Third, Davis contends that the omission from the record of the trial court's response to a question from the jury violates rule 17(n) of the Utah Rules of Criminal Procedure, thus undermining appellate review and making it impossible for Davis to determine whether his trial counsel performed effectively. The State responds that although the trial court failed to preserve the note, Davis has not satisfied his burden to prove that prejudice resulted. “Any error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded.” Utah R.Crim. P. 30(a); see also

[311 P.3d 546]

State v. Calliham, 2002 UT 86, ¶ 45, 55 P.3d 573 (“Notwithstanding error by the trial court, we will not reverse a conviction if we find that the error was harmless.”).

¶ 15 Davis also contends that, insofar as the general tenor of the trial court's response to the jury may be determined from the existing record, the response constituted an improper comment on the strength of the State's case. The State responds that Davis has not adequately reconstructed the record and that the trial court's response was correct and non-prejudicial. “We review challenges to jury instructions under a correctness standard.” Steffensen v. Smith's Mgmt. Corp., 862 P.2d 1342, 1346 (Utah 1993) (internal quotation marks omitted). “However, to reverse a trial verdict, [we] must find not a mere possibility, but a reasonable likelihood that the error affected the result.” Id. at 1347;see alsoUtah R.Crim. P. 30(a) (“Any error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded.”); State v. Ingleby, 2004 UT App 447, ¶¶ 11–13, 104 P.3d 657 (affirming a conviction, despite assuming the trial court responded to a jury question “improvidently,” because “any error that might be found is harmless”).

¶ 16 Finally, Davis contends that, even if none of his claims are sufficiently harmful alone to require reversal, the combined effect of the underlying errors is so great as to require reversal under the cumulative error doctrine. Under the cumulative error doctrine, we apply the “standard of review applicable to each underlying claim or error.” Radman v. Flanders Corp., 2007 UT App 351, ¶ 4, 172 P.3d 668. We reverse only if the cumulative effect of multiple errors undermines our confidence that a fair trial was had. State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993).

ANALYSIS
I. Prosecutorial Misconduct

¶ 17 Davis contends that the “prosecutor engaged in repeated instances of misconduct which undermines the fairness of this trial. This alleged misconduct included: (1) improperly diminish[ing] the burden of proof ...; (2) improperly asking [Davis] whether the shop clerk lied and...

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44 practice notes
  • State v. Clark, No. 20110206–CA.
    • United States
    • Court of Appeals of Utah
    • August 25, 2014
    ...be presented as evidence, and exaggerated claims that no evidence could ever support.” See State v. Davis, 2013 UT App 228, ¶¶ 27–30, 311 P.3d 538 (citations and internal quotation marks omitted). With respect to the prosecutor's remaining statements, we determine that they fall within the ......
  • State v. Bruun, Nos. 20140295-CA
    • United States
    • Utah Court of Appeals
    • September 28, 2017
    ...settled appellate law to guide the trial court." (citation and internal quotation marks omitted)); State v. Davis , 2013 UT App 228, ¶ 32, 311 P.3d 538 (explaining that "[t]o establish that the error should have been obvious to the trial court, [the appellant] must show that the law governi......
  • Mulder v. State, No. 20140642–CA
    • United States
    • Court of Appeals of Utah
    • October 6, 2016
    ...or even asserted that the record of K.G.'s voir dire cannot be satisfactorily reconstructed.7 Cf. State v. Davis , 2013 UT App 228, ¶ 90, 311 P.3d 538 (observing that "lack of an adequate record constitutes a basis for remand and a new hearing only where ... the record cannot be satisfactor......
  • State v. Thompson, No. 20080546–CA.
    • United States
    • Court of Appeals of Utah
    • January 16, 2014
    ...testimony of another witness.” State v. Taylor, 884 P.2d 1293, 1299 (Utah Ct.App.1994). For example, in State v. Davis, 2013 UT App 228, 311 P.3d 538, we held that a prosecutor improperly asked the defendant whether another witness was lying about a conversation with the defendant. Id. ¶¶ 3......
  • Request a trial to view additional results
44 cases
  • State v. Clark, No. 20110206–CA.
    • United States
    • Court of Appeals of Utah
    • August 25, 2014
    ...be presented as evidence, and exaggerated claims that no evidence could ever support.” See State v. Davis, 2013 UT App 228, ¶¶ 27–30, 311 P.3d 538 (citations and internal quotation marks omitted). With respect to the prosecutor's remaining statements, we determine that they fall within the ......
  • State v. Bruun, Nos. 20140295-CA
    • United States
    • Utah Court of Appeals
    • September 28, 2017
    ...settled appellate law to guide the trial court." (citation and internal quotation marks omitted)); State v. Davis , 2013 UT App 228, ¶ 32, 311 P.3d 538 (explaining that "[t]o establish that the error should have been obvious to the trial court, [the appellant] must show that the law governi......
  • Mulder v. State, No. 20140642–CA
    • United States
    • Court of Appeals of Utah
    • October 6, 2016
    ...or even asserted that the record of K.G.'s voir dire cannot be satisfactorily reconstructed.7 Cf. State v. Davis , 2013 UT App 228, ¶ 90, 311 P.3d 538 (observing that "lack of an adequate record constitutes a basis for remand and a new hearing only where ... the record cannot be satisfactor......
  • State v. Thompson, No. 20080546–CA.
    • United States
    • Court of Appeals of Utah
    • January 16, 2014
    ...testimony of another witness.” State v. Taylor, 884 P.2d 1293, 1299 (Utah Ct.App.1994). For example, in State v. Davis, 2013 UT App 228, 311 P.3d 538, we held that a prosecutor improperly asked the defendant whether another witness was lying about a conversation with the defendant. Id. ¶¶ 3......
  • Request a trial to view additional results

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