State v. Ferguson

• Decision Date: 17 March 2011
• Docket Number: No. 20090344–CA.,20090344–CA.
• Citation: 678 Utah Adv. Rep. 12,250 P.3d 89,2011 UT App 77
• Parties: STATE of Utah, Plaintiff and Appellee,v.Robert FERGUSON, Defendant and Appellant.
• Court: Utah Court of Appeals

250 P.3d 89

678 Utah Adv. Rep. 12

2011 UT App 77

STATE of Utah, Plaintiff and Appellee,

v.Robert FERGUSON, Defendant and Appellant.

No. 20090344–CA.

Court of Appeals of Utah.

March 17, 2011.

Margaret P. Lindsay and Douglas J. Thompson, Provo, for Appellant.Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee.Before Judges McHUGH, THORNE, and CHRISTIANSEN.

OPINION

McHUGH, Associate Presiding Judge:

¶ 1 Robert Ferguson appeals his conviction for aggravated sexual abuse of a child, see Utah Code Ann. § 76–5–404.1 (2008), arguing that evidence of his prior instances of child sexual abuse should not have been admitted under rule 404(b) of the Utah Rules of Evidence. Although we conclude that the evidence was erroneously admitted, we affirm Ferguson's conviction because there is no reasonable likelihood that the error affected the outcome of the proceedings.

BACKGROUND

¶ 2 Ferguson was employed at a sculpting studio as a groundskeeper. In February 2008, one of the studio's models (Mother) brought her three daughters with her to work. While Mother modeled, her daughters played nearby. As Mother was gathering the family's belongings at the end of the day, the three girls were playing in the hallway, out of Mother's sight. A short time later, the oldest daughter, five-year-old S.F., returned to Mother; S.F.'s body was “very rigid” and she looked “very scared.” S.F. told Mother that a man with “big fat glasses” and a “fat tummy” had “just stuck his hands down [her] pants.” Mother contacted the police, who arrested and interrogated Ferguson.

¶ 3 During the recorded interrogation, Ferguson stated that he had seen S.F. at the sculpting studio but initially denied touching her. Upon further questioning, Ferguson confessed that he “made a mistake,” that he had seen S.F. at the studio before, that she “turned [him] on,” and that he had found her alone and touched her between her legs for about ten seconds. During the interrogation, he also stated that he had “about fifty” past victims, as well as past convictions for sexual crimes against children.

¶ 4 The statute under which Ferguson was charged identifies certain circumstances that, if proved beyond a reasonable doubt, support a conviction of aggravated sexual abuse of a child, rather than simple sexual abuse of a child. See id. § 76–5–404.1(4). One of those circumstances is where “the accused, prior to sentencing for this offense, was previously convicted of any felony, or of a misdemeanor involving a sexual offense.” Id. § 76–5–404.1(4)(e). Before the trial on charges of aggravated child sexual abuse, the defense moved to bifurcate the proceedings so that the issue of guilt on the charge of sexual abuse would be determined by the jury before evidence of Ferguson's prior convictions would be introduced to establish an aggravating circumstance. In addition, Ferguson filed a motion in limine seeking to prohibit information concerning Ferguson's prior convictions and his references to fifty prior victims from being revealed to the jury for any purpose during the guilt phase of the proceeding. In response to these motions, the State sent a letter to the trial court indicating that it had no objection to bifurcating the issue of prior convictions and that it did not intend to introduce evidence of the convictions during its case in chief.

¶ 5 On the first day of trial, defense counsel requested rulings on the motions. The State again agreed to bifurcate the guilt phase of trial from the determination of whether the State could prove that Ferguson's prior convictions supported a conviction for aggravated sexual abuse of a child. The trial court agreed that the matter should be bifurcated, stating that “if there is a guilty verdict[,] then we conduct ... the second portion of the trial to determine if there are any aggravating factors.” Defense counsel then asked for clarification that evidence of Ferguson's prior convictions would not be admitted during the guilt portion of the jury trial. The trial court responded that the jury “[s]houldn't be hearing about those at all in the case in chief or in any of the statements” because “[t]here's no probative value to that in this case.” In response, the prosecutor stated, “[A]nd, I already agreed to that.”

¶ 6 The parties and the trial court then discussed the use of Ferguson's police interview. Defense counsel objected to the State playing the audio recording for the jury because it included references to Ferguson's history of child sexual abuse.¹ In response to the trial court's inquiry whether the offending portions could be excised, the prosecutor indicated that “I don't think I could get that ready today” and also advised the trial court that the State intended to rest that day. At that point, the prosecutor asserted that the references to Ferguson's child sexual abuse history were admissible under rule 404(b) or rule 404(c) of the Utah Rules of Evidence. After brief argument from both sides, the trial court ruled that the evidence was not admissible under rule 404(c) because it was not clear if the other victims were under the age of fourteen, see Utah R. Evid. 404(c) (allowing the admission of other instances of child molestation in a current case of child molestation to prove character propensity if the act was “committed in relation to a child under the age of [fourteen]”). The trial court reasoned that Ferguson “doesn't describe the age” of these victims and “little girls is nondescript.” Nevertheless, the trial court held that the evidence was admissible as other bad acts evidence under rule 404(b) because, taken in context, it was apparent that Ferguson's attraction is to girls under fourteen years of age. Therefore, the trial court concluded that the evidence could be used to prove Ferguson's knowledge and intent during the guilt phase of the jury trial.

¶ 7 The State played the entire tape of the interview for the jury, including the portions where Ferguson's prior convictions and his fifty prior victims were discussed. Ferguson then testified in his own defense and denied touching S.F. He also briefly described one of his previous convictions, which occurred in 1988, indicating that he had completed his sentence, as well as a halfway house program. Ferguson claimed that he had committed no offenses since his release from prison, which was in 2000 or 2001. During cross-examination, Ferguson admitted his attraction to young girls, that his prior victims were between the ages of two and seven, and that he had touched the genitals of these prior victims.

¶ 8 S.F. also testified at trial, stating that a man with glasses came up to her in the hallway and asked if she “need[ed] to go to the bathroom” and that when she said, “no,” he “sticked [sic] his hands down [her] pants.” A woman employed by the sculpting studio testified that she saw the three girls running down the hallway and asked Ferguson, who was just behind them, to open the door so that they could rejoin Mother. The woman then continued in the opposite direction until approximately a minute to a minute-and-a-half later, when the other two girls began crying because they could not find S.F. The woman stated that she looked through a window in a door and saw Ferguson bent over, facing away from her. As the woman entered, she saw doubledoors on the other side of the room closing. She then found S.F. with Mother, to whom S.F. reported the incident that had just occurred.

¶ 9 At the end of the two-day jury trial, Ferguson was convicted of the underlying offense of sexual abuse of a child.² In the second phase of the proceedings, which was tried before the trial court based on Ferguson's waiver of his right to a jury, the trial court determined that the State had also established Ferguson's prior convictions and other aggravating factors beyond a reasonable doubt. Ferguson appeals, arguing that the evidence about his previous convictions and the prior fifty victims was erroneously admitted during the jury trial.

ISSUE AND STANDARD OF REVIEW

¶ 10 We review a trial court's decision to admit evidence under rule 404(b) for an abuse of discretion. See State v. Widdison, 2001 UT 60, ¶ 42, 28 P.3d 1278; State v. Decorso, 1999 UT 57, ¶ 19, 993 P.2d 837. In doing so, we “review the record to determine whether the admission of other bad acts evidence was ‘scrupulously examined’ by the trial judge ‘in the proper exercise of that discretion.’ ” State v. Nelson–Waggoner, 2000 UT 59, ¶ 16, 6 P.3d 1120 (quoting Decorso, 1999 UT 57, ¶ 18, 993 P.2d 837). The “failure of a trial court to undertake a scrupulous examination in connection with the admission of prior bad act evidence constitutes an abuse of discretion.” State v. Webster, 2001 UT App 238, ¶ 11, 32 P.3d 976. However, we will not reverse a jury verdict based on the erroneous admission of evidence unless the defendant has been prejudiced as a result. See State v. Johnson, 2007 UT App 184, ¶ 34, 163 P.3d 695.

ANALYSIS

I. The Trial Court Exceeded Its Discretion by Failing To Conduct a Proper Analysis Under Rule 404(b).

¶ 11 It has long been a fundamental tenant of our jurisprudence “that a person can be convicted only for acts committed, and not because of general character or a proclivity to commit bad acts.” State v. Reed, 2000 UT 68, ¶ 23, 8 P.3d 1025 (citing State v. Saunders, 1999 UT 59, ¶ 15, 992 P.2d 951). For that reason, attempts by the prosecution to introduce evidence of the conduct of a defendant charged with a sex crime toward persons other than the alleged victim were traditionally “uniformly rejected.” State v. Wareham, 772 P.2d 960, 964 (Utah 1989); see also Reed, 2000 UT 68, ¶ 28, 8 P.3d 1025 (“Generally speaking, this court has been highly skeptical in sexual assault cases of evidence of other unrelated sex crimes by a defendant on trial for a separate offense. Here, however, the evidence ... is not unrelated; it all concerns this victim and these charges.”). Due to the...