State v. Gentry, 20185

Decision Date01 December 1987
Docket NumberNo. 20185,20185
Citation747 P.2d 1032
PartiesSTATE of Utah, Plaintiff and Respondent, v. Delmont L. GENTRY, Defendant and Appellant.
CourtUtah Supreme Court

Glenn K. Iwasaki, Suzan Pixton, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Earl F. Dorius, Sandra S. Sjogren, Salt Lake City, for plaintiff and respondent.

DURHAM, Justice:

Defendant Delmont L. Gentry was convicted of aggravated sexual assault and was sentenced to a minimum mandatory term of ten years. Defendant challenges the constitutionality of the minimum mandatory sentence provided for by Utah Code Ann. § 76-5-405 (Supp.1987). Defendant also claims that the trial court erred when it (1) failed to arrest judgment upon discovering that the verdict form signed by the jury foreman did not state the crime charged in the information; (2) refused to permit defendant to testify regarding prior sexual activity with the victim without being impeached by prior felony convictions; and (3) failed to allow hearsay testimony of defendant's ex-girlfriend, an unavailable witness. Finally, defendant claims that the evidence was insufficient in light of discrepancies in the victim's testimony. We reverse and remand for a new trial.

At about 11:00 a.m. on May 23, 1984, the victim, then aged 16, stood near the intersection of 900 South and State Street in Salt Lake City and began to hitchhike to her home on 4500 South.

The victim related the following course of events when she testified at trial: A man, later identified as defendant, pulled up to the curb in a pickup truck with a white camper shell and offered her a ride which she accepted. At some point, he asked her if she wanted to make some money. She testified that she understood that to mean that he wanted her to "make love to him" and she refused. Defendant told the victim that he needed to go to the bathroom and turned west off State Street and pulled into a warehouse area. Defendant got out of the truck to urinate. When he climbed back into the truck, his pants were unzipped and his belt was undone. Defendant then drew a short knife and demanded oral sex. The victim sodomized defendant as he held the knife at her neck. Defendant then ordered the victim out of the truck. As defendant drove away, the victim wrote down the license plate number of the truck. She then walked to a nearby phone booth and called the police.

Officer Poulsen, the investigating officer, testified that when he arrived, the victim was upset, emotionally withdrawn, and unable to talk in complete sentences. The victim identified her assailant's features, including a tattoo on his hand, and described the truck to the police officer. At the police station, she picked defendant's picture from a photo array.

The victim's testimony at trial frequently conflicted with evidence offered by defendant. The victim described the truck that picked her up as red with a white stripe. Defendant introduced photographs that showed his truck had a white exterior and a red interior. The victim told Officer Poulsen that her assailant had reddish-blonde hair. At trial, the victim testified that her assailant had dark brown hair with a red tint, defendant's hair color. There was also conflicting testimony regarding jewelry customarily worn by defendant, the type of belt buckle worn by defendant, the presence of a cowboy hat on the front seat of the truck, the layout of the truck's interior, the time she left home and arrived downtown on May 23, and whether the knife actually touched her neck during the assault.

Defendant was convicted of aggravated sexual assault, in violation of Utah Code Ann. § 76-5-405 (Supp.1987). After considering mitigating and aggravating circumstances, the trial court sentenced defendant to a minimum mandatory term of ten years in prison.

I.

Defendant challenges the constitutionality of the minimum mandatory sentencing scheme under which he was sentenced. Defendant argues that it constitutes cruel and unusual punishment, is an unconstitutional infringement on inherent judicial power and authority, invades the protected province of the Board of Pardons, and is unconstitutionally vague. The first three arguments raised by defendant were resolved by our holding in State v. Bishop, 717 P.2d 261 (Utah 1986), in the context of Utah's child sodomy statute. Utah Code Ann. § 76-5-403.1 (Supp.1987). We upheld the minimum mandatory sentencing scheme against challenges based upon equal protection, cruel and unusual punishment, and separation of powers. We find the analysis in that case equally applicable to the aggravated sexual assault statute charged in this case and therefore do not treat those arguments further. In State v. Egbert, 748 P.2d 558 (Utah 1987), we analyzed the minimum mandatory sentencing scheme for vagueness and held it constitutional. Defendant's challenges to the statute are therefore without merit.

II.

The next issue is whether the trial court erred in refusing to grant defendant's motion to arrest judgment because the verdict form signed by the jury foreman did not state the crime charged in the information. The jury verdict form returned by the jury stated that defendant was guilty of "forcible sexual assault as charged in the information." In fact, the information charged defendant with aggravated sexual assault, in violation of Utah Code Ann. § 76-5-405 (Supp.1987). Utah statutes do not contain a crime defined as "forcible sexual assault," although Utah Code Ann. § 76-5-404 (Supp.1987) prohibits "forcible sexual abuse," a second degree felony. (Emphasis added.) Neither the judge nor counsel realized the error until the verdict was read in open court. Defendant's motion to arrest judgment was denied.

Under Utah Code Ann. § 77-35-23 (1982), the court may arrest judgment "if the facts proved or admitted do not constitute a public offense ... or there is other good cause for the arrest of judgment." Defendant argues that this statute applies to situations where the offense on the verdict form does not constitute a public offense. According to defendant, this situation creates uncertainty per se as to what the jury intended, and he is entitled to have such uncertainty resolved in his favor. State v. Kakarikos, 45 Utah 470, 474, 146 P. 750, 752 (1915). We reject the argument that an error on the jury verdict form creates uncertainty per se. In evaluating whether there is uncertainty as to what the jury intended, we will look at the totality of the circumstances.

We do not believe that there was uncertainty as to what the jury intended in arriving at a verdict in this case. It is clear that the facts proved or admitted constituted aggravated sexual assault, a public offense under Utah Code Ann. § 76-5-405 (Supp.1987). There was no indication that the jury was confused about a lesser crime since no lesser included offense instructions were given or requested. See, e.g., State v. Jukanovich, 45 Utah 372, 146 P. 289 (1915). Nor is this the type of case where the jury returned a verdict which created uncertainty as to which of multiple defendants were guilty. See, e.g., Branningan v. People, 3 Utah 488, 24 P. 767 (1869). The jury was faced with an all-or-nothing proposition--it could either find defendant guilty as charged or it could find him not guilty. The information charged only the crime of aggravated sexual assault, the instructions to the jury laid out the elements of the crime and defined the key terms, and all of the arguments presented by the prosecution and defense concerned only the crime of aggravated sexual assault. Under these circumstances, we do not think the jury verdict created uncertainty as to what the jury intended.

A jury verdict should only be set aside if the jury misunderstands the law or ignores the evidence. See State v. Brown, 36 Utah 46, 57, 102 P. 641, 646 (1909). This appears to be a simple case of a clerical error where the word "forcible" was typed instead of the word "aggravated." The jury foreman did not consider alternative crimes before signing the verdict form. Because the crime charged was so clearly stated and tried and because no lesser included offenses were presented to the jury, we do not think the jury was confused by the miswording on the verdict form.

III.

Defendant raises several evidentiary issues. In reviewing these issues, we grant broad discretion to the trial court. In general, this Court will not reverse the trial court's ruling on evidentiary issues unless it is manifest that the court so abused its discretion that there is a likelihood that injustice resulted. State v. McClain, 706 P.2d 603, 604 (Utah 1985).

Defendant challenges the trial court's rulings regarding evidence proffered by defendant which would show that the victim had engaged in sexual relations with defendant on prior occasions. According to defendant, the victim is a prostitute he met at Burningham's Truck Stop, and she was motivated to lie because he refused to pay for sexual services she had provided earlier. Among other evidentiary challenges, defendant questions the court's denial of defendant's motion to suppress evidence of his prior convictions. Defendant also challenges the trial court's refusal to permit Sharon Knerr to testify regarding hearsay statements of an unavailable witness. Finally, defendant contends that the evidence was insufficient to support the jury verdict. We agree with defendant's challenge to the refusal to exclude prior convictions. We treat defendant's other evidentiary challenges in order to aid the trial court on remand.

Defendant did not take the stand. Hoping to avoid impeachment, he moved to suppress evidence of his prior convictions. That motion was denied, and defendant chose not to testify. In State v. Banner, 717 P.2d 1325 (Utah 1986), we held in a similar circumstance that we should reach the claimed error.

Inasmuch as this is the first time this Court has spoken out on the requirements surrounding preservation of objections...

To continue reading

Request your trial
43 cases
  • State v. Young
    • United States
    • Utah Supreme Court
    • March 17, 1993
    ...sentencing schemes and particular sentences under article I, section 9. See State v. Russell, 791 P.2d 188 (Utah 1990); State v. Gentry, 747 P.2d 1032 (Utah 1987); State v. Bishop, 717 P.2d 261 (Utah 1986). For a Utah due process analysis in the civil context, see Berry v. Beech Aircraft, 7......
  • State v. Brown, 53997-9
    • United States
    • Washington Supreme Court
    • July 14, 1988
    ...of the courts considering the question, however, have adopted the Luce holding. State v. Means, 363 N.W.2d 565 (S.D.1985); State v. Gentry, 747 P.2d 1032 (Utah 1987); State v. Moffett, 729 S.W.2d 679 (Tenn.Crim.App.1986); Jimenez v. State, 480 So.2d 705 (Fla.Dist.Ct.App.1985); State v. Harr......
  • State v. Brown
    • United States
    • Washington Supreme Court
    • October 31, 1989
    ...of the courts considering the question, however, have adopted the Luce holding. State v. Means, 363 N.W.2d 565 (S.D.1985); State v. Gentry, 747 P.2d 1032 (Utah 1987); State v. Moffett, 729 S.W.2d 679 (Tenn.Crim.App.1986), appeal denied, February 9, 1987; Jimenez v. State, 480 So.2d 705 (Fla......
  • Met v. State
    • United States
    • Utah Supreme Court
    • November 21, 2016
    ...and have therefore, in the past, required defendants to testify to preserve a challenge to an evidentiary ruling.14 See State v. Gentry , 747 P.2d 1032, 1036 (Utah 1987) ; Luce v. United States , 469 U.S. 38, 41–43, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Luce concluded that to preserve a cla......
  • Request a trial to view additional results
1 books & journal articles
  • Commentary
    • United States
    • Utah State Bar Utah Bar Journal No. 33-6, December 2020
    • Invalid date
    ...an unavailable declarant’s statement against interest in the hopes of casting doubt on the defendant’s own guilt. E.g., State v. Gentry, 747 P.2d 1032, 1038 (Utah 1987). By contrast, if the government offered a declarant’s inculpatory statement against, say, a codefendant, the government on......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT