State v. Featherson

• Decision Date: 26 September 1989
• Docket Number: No. 880091,880091
• Citation: 781 P.2d 424
• Parties: STATE of Utah, Plaintiff and Appellee, v. Cagie FEATHERSON, Jr., Defendant and Appellant.
• Court: Utah Supreme Court

Page 424

781 P.2d 424

STATE of Utah, Plaintiff and Appellee, v. Cagie FEATHERSON, Jr., Defendant and Appellant.

No. 880091.

Supreme Court of Utah.

Sept. 26, 1989.

Andrew A. Valdez, Joan C. Watt, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, Charlene Barlow, Salt Lake City, for plaintiff and appellee.

HOWE, Associate Chief Justice:

Defendant Cagie Featherson, Jr., appeals from his convictions of aggravated sexual assault and aggravated burglary, both first degree felonies, in violation of Utah Code Ann. §§ 76-5-405 and 76-6-203 (1978, Supp.1989) respectively.

Defendant came uninvited to the victim's apartment three times during the evening of September 8 and the morning hours of September 9, 1987. She allowed him to enter the first time, believing him to be a friend with a load of groceries. The second time, he apparently entered her apartment through the sliding glass door on her balcony, and the third time, possibly through her apartment window, as indicated by a torn and removed screen. Upon each entry, she insisted he leave, which he did until the third and final entry, when she heard a big thump which came from the living room just moments after his second departure. According to the victim's testimony, she came into the living room to find defendant lying on his side on the floor. He stated that he wanted to talk and to smoke some marijuana together. She then walked over to the telephone, telling him he needed to leave or she was going to seek help. She dialed the operator, stating that she had a problem in her apartment and needed the police. Defendant grabbed her arm and told her she did not need the police. He hung up the phone, which rang a few seconds later. The emergency operator asked if she needed the police and she replied that she did, giving her address. She was unable to finish the conversation because defendant pulled the phone out of the wall. He warned her to be quiet; she asked him to leave, but he would not. He said he wanted to talk.

When she started to scream, he covered her mouth with his hand. Defendant testified that he was simply attempting "to calm her down." He grabbed her and pushed her down on the living room floor. In the struggle, her bra strap was ripped. She testified that defendant threw her onto the couch, climbed on top of her, and fondled her breasts. They were on the couch for about one minute when two police officers arrived and witnessed the scene. The officers pulled defendant off, and she ran into the bedroom. She suffered bruises, cuts, and scratches. Defendant had scratches on both of his arms and a few bruises.

The court returned verdicts of guilty to the charges of aggravated sexual assault and aggravated burglary. Defendant was sentenced to a minimum mandatory term of ten years, and which may be for life, for the aggravated sexual assault and to a term of not less than five years, and which may be for life, for the aggravated burglary.

I.

Defendant contends that the trial court erred in admitting evidence of prior bad acts or wrongdoings not related to the crimes charged and in allowing the State to question him as to the defense he interposed to prior charges which resulted in convictions. The State counters that such evidence and questioning was properly admitted and was allowed to show defendant's modus operandi, state of mind, or knowledge. Both defendant and the State rely on rule 404(b) of the Utah Rules of Evidence, which is the federal rule verbatim and provides:

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Specifically, defendant complains of the trial court's rulings in three instances. First, two women were allowed to testify about defendant's interactions with them several hours prior to the incident in the victim's apartment. Second, on cross-examination, the State was permitted to question defendant regarding his defense to three prior sexual assault offenses which had resulted in convictions, one for rape in 1979 and two for aggravated assaults in 1983. Third, the State questioned him about two prior uncharged assault incidents where officers had been summoned in 1977 and 1978. Defense counsel objected to the women's testimony and each line of questioning.

A.

Evidence of other crimes, wrongs, or acts may be admitted if it has "a special relevance to a controverted issue and is introduced for a purpose other than to show the defendant's predisposition to criminality." State v. Shickles, 760 P.2d 291, 295 (Utah 1988) (citing State v. Saunders, 699 P.2d 738, 741 (Utah 1985)). In State v. Shaffer, 725 P.2d 1301, 1307 (Utah 1986), this Court stated:

[O]ther crimes or bad acts may be admitted "when relevant to prove some material fact including absence of mistake or accident, motive, opportunity, intent, preparation, plan, knowledge or identity." While evidence of other bad acts is inadmissible to show the general disposition of the defendant, such evidence, when relevant and competent, is admissible to prove a material fact. State v. Tanner, 675 P.2d 539, 546 (Utah 1983).

Such a fact must be material to the crime charged. We so held in State v. Forsyth, 641 P.2d 1172, 1176-77 (Utah 1982): "Evidence is not admitted merely because it shows a common plan, scheme, or manner of operation. Instead, evidence of a common plan, scheme, or manner of operation is admitted where it tends to prove some fact material to the crime charged." When evidence may establish constitutive elements of the crime of which the defendant is accused, in the case on trial, it is admissible even though it tends to prove that the defendant has committed other crimes. See State v. Wareham, 772 P.2d 960 (Utah 1989), and cases cited therein; see also State v. Johnson, 748 P.2d 1069, 1075 (Utah 1987) (evidence of other crimes was probative and necessary to prove identity of defendant); State v. Smith, 700 P.2d 1106, 1110 (Utah 1985) (in prosecution for rape, forcible sodomy, and burglary, the evidence of a prior criminal act to prove identity was admissible but subject to a limiting instruction).

The admissibility of prior bad act evidence is subject to the protections of the Utah Rules of Evidence, rule 403, i.e., the probative value of evidence of a material, controverted fact must outweigh its prejudicial effect. State v. Shickles, 760 P.2d at 295; State v. Kerekes, 622 P.2d 1161, 1165 (Utah 1980). Rule 403, which again is the federal rule verbatim, provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

See also M. Graham, Handbook of Federal Evidence, § 404.5, at 215 (2d ed. 1986). In State v. Bell, 770 P.2d 100, 111 (Utah 1988), this Court cautioned the trial court on remand to admit the evidence of other crimes only after it had conducted a careful weighing of the probative value and potential prejudicial effect of the evidence pursuant to Utah Rules of Evidence 403. Evidence that goes to general disposition or is unfairly prejudicial is not admissible. Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988).

We will now consider separately the three rulings of the trial court which defendant assails.

B.

At the beginning of the trial, the prosecutor called two women to testify that defendant had made nonconsensual sexual advances toward them seven or eight hours before the incident with which he was charged. One woman testified that defendant looked at her chest and reached down and lifted her skirt. He then raised his eyebrows and smiled. He also whistled and looked intensely at her as she walked by the pool in their apartment complex. During the time he was visiting with the two women, defendant admitted that he was "high." The second woman testified that defendant was "looking at me, licking his lips. [He was] looking me up and down, looking around behind me at my backside." She testified that he followed her inside the rental office and into the manager's office, "just looking at me and just talking." This episode lasted approximately forty-five minutes without further incident. Defense counsel objected to the testimony of both women on the ground that their testimony was irrelevant, inflammatory, and prejudicial and concerned uncharged misconduct. After the prosecution stated that the observations of these women at that time were relevant evidence of defendant's state of mind at the time he committed the charged offense, the trial court overruled his objection.

The trial court erred in admitting the testimony of the two women because such testimony was not probative or relevant. With regard to similar uncharged misconduct, the Washington Court of Appeals held evidence inadmissible that the defendant, who managed the apartment building, tried to kiss a tenant of the apartment building shortly after the victim was raped. In State v. Whyde, 30 Wash.App. 162, 168, 632 P.2d 913, 917 (1981), the court held:

Evidence of specific instances of a person's conduct is generally not admissible to prove the character of a person in order to show that he acted in conformity with that character trait on a particular occasion. ER 404(b). There is no connection between Whyde's attempt to kiss Ms. H after the incident with S, and whether he raped S.

On the other hand, in State v. Shickles, 760 P.2d 291 (Utah 1988), this Court held that prior crime evidence was admissible because it was relevant to intent. There, evidence of the defendant's illicit conduct with the kidnapped minor, M., was...