State v. Devey
| Decision Date | 25 May 2006 |
| Docket Number | No. 20050414-CA.,20050414-CA. |
| Citation | 138 P.3d 90,2006 UT App 219 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Blair Alan DEVEY, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Clayton A. Simms, Clayton A Simms LLC, Salt Lake City, for Appellant.
Mark L. Shurtleff, atty. gen., and Jeanne B. Inouye, asst. atty. gen., Salt Lake City, for Appellee.
Before Judges BILLINGS, McHUGH, and ORME.
¶ 1 Blair Alan Devey appeals his convictions of three counts of aggravated sexual abuse of a child, one count of sodomy on a child, one count of rape of a child, three counts of rape, one count of aggravated sexual assault, one count of forcible sodomy, and two counts of object rape. He primarily alleges prosecutorial misconduct during closing arguments and prejudicial error in a witness's reference to the complaining witness as "the victim." We affirm.
¶ 2 "On appeal from a jury verdict, we view the evidence and all reasonable inferences in a light most favorable to that verdict and recite the facts accordingly." State v. Winfield, 2006 UT 4,¶ 2, 128 P.3d 1171 (quotations and citation omitted).
¶ 3 Based on a course of conduct that was directed at the complaining witness in this case (the child) and spanned approximately four years, Devey, the child's biological father, was charged with multiple sex-related crimes.
¶ 4 Prior to Devey's trial on these charges, his counsel filed a motion in limine requesting that the court prohibit the State and any witnesses from referring to the child as "the victim." After a hearing on the matter, the trial court denied Devey's motion.1 During the trial, one of the State's witnesses made a single reference to the child as "the victim."2
¶ 5 At trial, the child testified generally about Devey's course of conduct and specifically about several of her encounters with Devey. After testifying about several specific instances when Devey touched her vagina with his fingers and mouth, the child also testified that similar encounters had occurred "quite often" and "quite frequently." Later in her testimony, the child recounted several specific instances when Devey had both vaginal and anal intercourse with her. The child also indicated that although she did not know exactly how many times Devey had vaginal intercourse with her, it was probably "four at the least." The child also testified that Devey used a vibrator in several encounters with her and would "put it in [her] vagina, and sometimes just play with it and stuff like that." The child did not testify about the specific number of times this happened, but indicated it happened more than once by stating that Devey "use[d] it on [her] sometimes" and that "[o]ccasionally it was in my room; sometimes it was in his" bedroom. Additionally, the child testified that Devey showed her pornography. She did not indicate the specific number of times, but again noted that it happened on more than one occasion by stating that Devey showed her movies and "things on his computer" that portrayed "lesbians" or "sometimes things with three people [or] two people." All of this testimony was received by the trial court without objection from Devey.
¶ 6 At the close of Devey's trial, both the prosecutor and Devey's counsel presented their closing arguments. In one portion of the prosecutor's closing argument, she stated:
So, I'd ask you to step back occasionally and look at the big picture of what has been presented to you, and the evidence in this case is overwhelming. The evidence is very, very clear. The evidence is that [Devey] committed each and every one of these crimes and many more that he is not charged with, but the evidence is just overwhelming and establishes that very clearly.
Basically what this case boils down to is you have to decide whether to believe [the child]. You have to decide whether to believe her account of what happened.
¶ 7 Following closing arguments, Devey filed a motion for a new trial in which he argued that these remarks amounted to prosecutorial misconduct because they referenced evidence not before the jury in violation of rule 404(b) of the Utah Rules of Evidence. The trial court denied Devey's motion, but did give a curative instruction to the jury indicating that statements of counsel were not evidence. Thereafter, the jury returned guilty verdicts on all counts. Devey appeals.
¶ 8 Devey argues that the trial court erred by denying his motion for a new trial, which was based on allegedly improper remarks the prosecutor made during closing arguments. "A trial court has discretion in determining whether to grant or deny a motion for a new trial, and we will not reverse a trial court's decision absent clear abuse of that discretion." State v. Harmon, 956 P.2d 262, 265-66 (Utah 1998).
¶ 9 Devey also argues that the trial court erred by denying his motion in limine to prohibit the State and its witnesses from referring to the child as "the victim." Devey contends that, as a result, one of the State's witnesses referred to the child as "the victim," thereby depriving Devey of the constitutional right to the presumption of innocence. When examining a claimed violation of the constitutional right to the presumption of innocence, "we appl[y] close judicial scrutiny and review[] the trial court's decision for correctness." State v. Kell, 2002 UT 106,¶ 11, 61 P.3d 1019.
¶ 10 Devey argues that the trial court erred by denying his motion for a new trial. Devey based the motion on allegedly improper remarks the prosecutor made during closing arguments.3 To determine whether a prosecutor's statements during closing arguments were improper and constitute reversible error, we must examine
(1) whether the remarks call[ed] to the attention of jurors matters which they could not properly consider in determining their verdict; and (2) the prejudicial effect of the statement on the defendant's case. If determined to be harmful, improper statements will require reversal. To obtain a reversal, the defendant must show that the prosecutor's remarks were obviously improper and harmful.
State v. Colwell, 2000 UT 8,¶ 39, 994 P.2d 177 (citations omitted). Even if a defendant is able to establish that the prosecutor's remarks were improper, that defendant must also demonstrate that the effect of those remarks was "substantial and prejudicial such that there is a reasonable likelihood that, in [their] absence, there would have been a more favorable result." State v. Wright, 893 P.2d 1113, 1118 (Utah Ct.App. 1995) (quotations and citations omitted).
¶ 11 Devey asserts that the prosecutor's statements were improper because they referenced evidence in violation of rule 404(b) of the Utah Rules of Evidence.4 See Utah R. Evid. 404(b) (). Evidence is admissible under rule 404(b) if "(1) the evidence is offered for a proper, noncharacter purpose, such as one of those listed in rule 404(b); (2) the evidence meets the requirements of rule 402; and (3) the evidence meets the requirements of rule 403." State v. Allen, 2005 UT 11,¶ 16, 108 P.3d 730; see Utah R. Evid. 402, 403.
¶ 12 In State v. Reed, 2000 UT 68, 8 P.3d 1025, the Utah Supreme Court considered rule 404(b) under similar circumstances. See id. at ¶¶ 25-31. In Reed, the defendant was convicted of sodomy on a child and aggravated sexual abuse of a child. See id. at ¶ 1. On appeal, the Utah Supreme Court considered the defendant's claim that the trial court erred by failing to bifurcate his trial to require the State to prove the underlying offense of sexual abuse of a child before evidence of the aggravating offenses was presented to the jury. See id. at ¶ 20. The court held that the trial court did not err by failing to bifurcate the trial and concluded that evidence of the aggravating offenses was admissible under rule 404(b). See id. at ¶¶ 25-31.
¶ 13 In holding that the evidence was offered for a noncharacter purpose, the Reed court stated that "the evidence of multiple instances of sexual contact with the victim in this case does not merely demonstrate [the defendant]'s general character or disposition, but instead demonstrates an ongoing behavior pattern which included [the defendant]'s abuse of the victim." Id. at ¶ 26. The court also concluded that the evidence was relevant under rule 402. See id. at ¶¶ 27-28. In reaching this conclusion, the court relied on the fact that the evidence that the defendant complained of was not unrelated to the case, but instead, was related exclusively to the victim and the charges in the case. See id. at ¶ 28. The court also relied on the fact that "all of [the] acts were essentially interchangeable, occurred over a defined period of time and in the same uninterrupted course of conduct, and [could not] be said to be unrelated for purposes of [the] case." Id. Finally, the court determined that the evidence satisfied the requirements of rule 403. See id. at ¶¶ 29-31. In reaching that conclusion, the court stated:
This case did depend largely on the credibility of the victim's testimony, as is frequently true of child sex abuse cases. Testimony about the aggravating offenses, however, allowed the victim to describe the full scope of the context in which [the defendant] abused him over three and one-half years. Contrary to [the defendant]'s assertion that the aggravating offenses were "discrete and separate from the primary" offense, we observe that they were essentially interchangeable, were of the same nature and character as the primary offense, and were carried out on the same victim during the same uninterrupted course of conduct.
Id. at ¶ 31 (footnote omitted).
¶ 14 Similarly, we conclude that the...
To continue reading
Request your trial
-
State v. Jonathan Albino.
...(1991), cert. denied, 506 U.S. 851, 113 S.Ct. 152, 121 L.Ed.2d 102 (1992); Jackson v. State, 600 A.2d 21, 24 (Del.1991); State v. Devey, 138 P.3d 90, 95 (Utah App.2006); see also State v. Thompson, 266 Conn. 440, 473, 832 A.2d 626 (2003). In People v. Price, supra, 1 Cal.4th at 324, 3 Cal.R......
-
State v. Klenz
...pattern which included [the defendant's] abuse of the victim."); State v. Cox , 2007 UT App 317, ¶ 31, 169 P.3d 806 (same); State v. Devey , 2006 UT App 219, ¶ 14, 138 P.3d 90 (same).¶46 Like Reed , Cox , and Devey , the other bad acts evidence against Defendant—that he abused Victim outsid......
-
State v. Sperou
...is conclusive in nature and connotes a predetermination that the person referred to had in fact been wronged."); State v. Devey , 138 P.3d 90, 95 (Utah Ct. App. 2006) ("[W]here a defendant claims that the charged crime did not actually occur, and the allegations against that defendant are b......
-
State v. Bolivar
...See State v. Albino , 130 Conn.App. 745, 24 A.3d 602 (2011) ; State v. Sperou , 365 Or. 121, 442 P.3d 581 (2019) ; State v. Devey , 138 P.3d 90 (Utah Ct. App. 2006). The state counters that pursuant to Z.W. v. Foster , the trial court maintains broad discretion in determining how to refer t......