State v. Doporto
| Decision Date | 17 January 1997 |
| Docket Number | No. 940014,940014 |
| Citation | 935 P.2d 484 |
| Parties | 308 Utah Adv. Rep. 18 STATE of Utah, Plaintiff and Appellee, v. Michael DOPORTO, Defendant and Appellant. |
| Court | Utah Supreme Court |
Jan Graham, Atty. Gen., Thomas Brunker, Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.
Mary C. Corporon, Salt Lake City, for defendant and appellant.
On appeal, Michael Doporto contests, on the basis of numerous asserted errors in the trial court, his conviction for sodomy on a child. He was sentenced to a prison term of fifteen years to life. We hold that the trial court erred in admitting evidence of prior crimes, vacate the verdict, and remand for a new trial.
On March 17, 1993, the State charged Doporto with the crime of sodomy on a child, a first degree felony, in violation of Utah Code Ann. § 76-5-403.1. Doporto asserted that he was indigent and requested that the court appoint counsel for him. The court ruled that Doporto was not indigent and refused Doporto's request that counsel be provided at the State's expense. Thereafter, Doporto represented himself throughout the proceedings.
Doporto was charged with sodomizing A.W., a girl who was seven years old at the time of the alleged crime. Prior to trial, the State filed a motion in limine to allow six other persons to testify that Doporto also had sexually abused them on other occasions. Doporto objected to the admission of this testimony and renewed his objection at trial. The trial court ruled in a memorandum decision that under Rule 404(b) of the Utah Rules of Evidence, 1 the testimony of two of these persons was "too remote [in time] to be probative of any plan, scheme, design, opportunity, or claim of intent" and therefore was not admissible. The court held that the other incidents proffered by the State, however, were not too remote and also ruled that there were sufficient similarities between the other incidents and the crime for which Doporto had been charged to permit the testimony of the four remaining witnesses under Rule 404(b). The trial court then ruled that the probativeness of the proffered testimony of all four witnesses who would testify about five prior incidents was "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading [of] the jury" but that "the testimony of any two (2) of the proffered witnesses would not be prejudicial[,] nor would they confuse or mislead the jury if they were admitted into evidence." Accordingly, the court allowed the State to select any two of the proffered witnesses and present their testimony.
During pretrial proceedings, Doporto informed the court that he had a partial hearing deficiency, and the court allowed Doporto's wife to sit next to him and assist him by repeating into his ear at close range what other persons in the courtroom were saying. At trial, the court provided Doporto with amplification headphones linked to the microphone systems in the courtroom and refused to allow his wife to sit with him as an "interpreter."
The victim, A.W., testified that sometime during the summer of 1988, when she was seven years old, she went to Doporto's home when one of Doporto's daughters invited her to sleep over. During the evening, Doporto entered the room, asked A.W. if she wanted some lotion, and then had her sit on the couch next to him, where he pulled her legs onto his lap, rubbed lotion on the inside of her legs, and touched her panties. Doporto then left the room but later returned and lay down behind her, pulled her nightgown up, and anally sodomized her. After Doporto left the room, A.W. attempted to wake Doporto's daughter, who was either asleep or pretending to be asleep and did not respond. A.W. cried herself to sleep. In the morning, A.W. gathered her things and left.
A.W.'s mother testified that A.W.'s behavior had changed at about the same time. She developed difficulties in school while in the second grade, said that she wanted to change her name and her appearance, and shied away from adults, particularly men. A.W.'s aunt testified that during the late summer of 1988, while on a visit, A.W. seemed uncomfortable disrobing in her aunt's presence prior to taking a bath and appeared to experience pain when she sat in the bathtub. Her aunt also noticed a dark stain in the crotch area of A.W.'s panties and initially assumed that A.W. was not wiping adequately after going to the bathroom. She then noticed, however, that the stain had no odor, and she threw the panties in the trash. There is no evidence in the trial transcript that she either notified A.W.'s parents about the stain or sought medical treatment on A.W.'s behalf.
The State also called a pediatrician, Dr. Edward Keith Madsen, and a clinical psychologist, Dr. Lynn Ravesten, as expert witnesses. Dr. Madsen testified that anal intercourse by an adult male on a seven-year-old girl could produce tearing and bleeding in the anus, but he also testified that similar tearing and bleeding in children is frequently caused by bowel movements. Dr. Ravesten testified concerning typical behavior patterns of victims of sexual abuse and described common personality changes. He stated that children will often wait several years to report incidents of abuse.
In addition, the State presented the testimony of the two witnesses it had selected pursuant to the court's order permitting evidence of Doporto's alleged prior sexual crimes. There is no evidence in the record that Doporto was given any notice prior to the trial of who those witnesses would be. B.J.L. testified that in 1986, when she was eleven years old and a friend of one of Doporto's daughters, she had gone to Doporto's house. When she arrived, Doporto answered the door, informed her that his daughter was not home, and invited her to go driving with him. She testified that he took her to a remote location, removed her clothing, and had intercourse with her. B.J.L. stated that as they drove back into town, Doporto gave her a dollar, told her that what had happened was a secret, and that if she told her parents, they would not believe her and would send her away or they would be harmed in some way.
T.M., Doporto's niece, testified as to two prior incidents of abuse. In 1980, more than eight years prior to the charged crime and eleven years prior to trial, when T.M. was about five years old, she attended a family gathering. Doporto's wife informed T.M. that she should go with Doporto and that he would give her a bath. T.M. stated that when Doporto took her into the bathroom, he placed her in the bathtub, rubbed baby oil on her, and then had intercourse with her. Apparently arrangements had been made for her to stay the night. T.M. testified that Doporto raped her two more times during the course of the evening. At one point, T.M. stated that he showed her some dogs in the back yard and informed her that if she ever told anyone what had happened, the dogs would eat her.
T.M. also related another incident which occurred in 1989, when she was approximately fourteen years old. At another family gathering, Doporto came into the room where T.M. was watching television and told her he had money for her. He gave her five dollars, took her into a room, and unzipped her pants. He then attempted to kiss her, pulled down her underwear, and "sticked his fingers inside [her] vagina."
On appeal, Doporto asserts a number of errors. Because we find the erroneous admission of evidence of prior sexual abuse sufficient to warrant a new trial, we will address the other issues only to the extent they may bear upon the proceedings at a new trial.
The admissibility of prior crime evidence in a criminal trial raises fundamental issues of fairness that also affect to some extent the standard of review that an appellate court should apply in reviewing a conviction based in part on such evidence.
Evidence of prior crimes may be admissible in the prosecution's case in chief for two purposes. First, the commission of prior crimes may, itself, constitute an element of the crime charged or bear on the sentence to be imposed, as in capital crimes and some crimes for which minimum mandatory sentences may be imposed. Second, evidence of prior crimes may be adduced as circumstantial evidence of a material element of the crime charged. The highly prejudicial effect of prior crime evidence has been recognized in both instances and dealt with in different ways.
The first category of prior crime evidence is admissible because the commission of a prior crime or crimes is an aggravating factor constituting an element of the crime charged and must be proved beyond a reasonable doubt for the prosecution to prove all the elements of that enhanced charge. We have held that the prior crime evidence must not be allowed to prejudice the finder of fact in deciding the issue of guilt on the underlying charge. To that end, we have required that the prior crime evidence be presented in a separate bifurcated proceeding, after the proceeding where guilt is decided on the underlying charge. We have so held in both capital, State v. Bishop, 753 P.2d 439, 498-99 (Utah 1988) (Zimmerman, J., concurring in the result); id. at 496 (Durham, J., concurring separately); id. at 489 (Stewart, J., concurring in part and concurring in the result), and noncapital cases, State v. Wareham, 772 P.2d 960, 963-65 (Utah 1989). We have also relied upon the same principle in requiring severance and separate trials for separate charges against a defendant that are reasonably severable. E.g., State v. McCumber, 622 P.2d 353, 356 (Utah 1980).
The second category, prior crime evidence as circumstantial evidence of an element of a crime charged, poses a particularly difficult problem for the integrity of the judicial process in its truth-finding function...
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