State v. Klenz
| Decision Date | 25 October 2018 |
| Docket Number | No. 20160742-CA,20160742-CA |
| Citation | 437 P.3d 504 |
| Parties | STATE of Utah, Appellee, v. Roger Glen KLENZ, Appellant. |
| Court | Utah Court of Appeals |
Gregory W. Stevens, Salt Lake City, Attorney for Appellant.
Sean D. Reyes and Jeffrey S. Gray, Salt Lake City, Attorneys for Appellee.
Opinion
¶1 Defendant Roger Glen Klenz appeals his convictions on five counts of aggravated sexual abuse of a child, all first degree felonies, and five counts of forcible sexual abuse, all second degree felonies. He argues that the trial court erred by denying his motion for a bill of particulars, admitting evidence of his alleged other bad acts, admitting into evidence a detective's statements having bearing on the credibility issues in the case, and denying his motion to arrest judgment. We affirm.
¶2 In 2015, when Defendant's daughter (Victim) was fifteen years old, she told her mother and a family friend that Defendant had sexually abused her for around eight years. Victim and Defendant had gotten into a fight earlier that day, and Victim was crying. Victim initially refused to disclose why she was upset, explaining that Defendant told her that she "couldn't tell." Eventually, the family friend asked whether Defendant had molested her, and Victim said yes. When asked whether it was "more than that," Victim answered, "[Y]eah, it was a lot more than that."
¶3 Victim reported these allegations to authorities, and Defendant was arrested and interviewed by a detective (Detective). The State charged Defendant with thirty counts of sexual offenses. Specifically, he was charged with five counts of aggravated sexual abuse of a child for conduct occurring over a seven-year period ranging from "on or about November 03, 2006 through November 02, 2013," when Victim was under the age of fourteen. He was charged with five counts of rape of a child and five counts of sodomy upon a child. The Amended Information alleged that these crimes occurred over the two-year period from "on or about November 03, 2011 through November 02, 2013," also when Victim was under the age of fourteen. Additionally, Defendant was charged with five counts of rape, five counts of forcible sodomy, and five counts of forcible sexual abuse. The Amended Information alleged that these offenses occurred over about a two-year period from "on or about November 03, 2013 through June 6, 2015," after Victim turned fourteen.
¶4 Defendant filed a Motion for a Bill of Particulars and Demand for a More Definite Statement of the Date, Time and Place of the Alleged Offenses. Noting that he was charged with thirty counts of sexual offenses against Victim and asking for "more than a broad statement that the alleged crimes took place within spans of two years or seven years," Defendant asserted that he was entitled to "sufficiently precise information of the date, time and place of an alleged offense" in order to prepare a defense and to uphold his due process rights.
¶5 The trial court denied Defendant's motion, concluding that Defendant's constitutional right to notice had "already been satisfied by the information." It observed that a " ‘core defense’ " of " ‘I didn't do it’ " is not time-sensitive and concluded that Victim was "not required to give precise dates of each alleged offense." (Quoting State v. Taylor , 2005 UT 40, ¶ 18, 116 P.3d 360.) Thus, because Defendant was "able to prepare a defense and [was] not in danger of multiple prosecutions for the same crime," a bill of particulars was unnecessary.
¶6 Before trial, the State moved for the admission of evidence of four alleged incidents of other bad acts that occurred outside Box Elder County.2 First, when Victim was fourteen years old and staying with extended family following her grandmother's death, Defendant allegedly had sex with Victim after finding her crying on a bed and suggesting she was upset about a boy and he knew "what [would] make [her] feel better" (the funeral incident). Next, on two trips to softball tournaments when Victim was thirteen or fourteen, Defendant allegedly had sex with Victim in their hotel rooms (the softball trip incidents). Finally, when Victim was approximately thirteen years old, Defendant allegedly had sex with Victim in a van parked in a store parking lot (the parking lot incident). According to the State, the other bad acts evidence was admissible under rule 404(c) of the Utah Rules of Evidence as prior instances of sexual abuse and under rule 404(b) as it was offered for the proper noncharacter purposes of establishing Defendant's intent and of showing "Victim's credibility, ... Defendant's method of using [Victim's] relationship with boys to justify the abuse, ... [and that Defendant] used opportunities when he was alone with [Victim] to abuse her."
¶7 The trial court granted the State's motion to admit the other bad acts evidence, concluding that it was admissible under rule 404(c). That rule allows, "[i]n a criminal case in which a defendant is accused of child molestation," the admission of "evidence that the defendant committed any other acts of child molestation to prove a propensity to commit the crime charged." Utah R. Evid. 404(c)(1). The court stated that "this enumerated purpose from rule 404 applies to the unique events the Victim can testify to in order to establish the context and credibility of her allegations." The court similarly concluded that the evidence was relevant under rules 401 and 402.
¶8 The court then conducted a balancing analysis under rule 403. On the one hand, it concluded that the evidence of uncharged instances of sexual abuse in this case had probative value because it allowed Victim "to provide testimony about the scope and context of the abuse." On the other hand, because the jury would be determining "what, if any, events occurred based on [its] determination of credibility of the witness," there would be a limited danger of unfair prejudice given that Victim would be describing only "additional incidents of abuse." (Citing State v. Cox , 2007 UT App 317, ¶¶ 33–34, 169 P.3d 806.) Accordingly, the court found that "the balancing test of rule 403 allow[ed] for the admissibility of the evidence."
¶9 On the eve of trial, Defendant moved to exclude certain portions of the video recording of his interview by Detective on the day of his arrest. He sought to exclude portions that "constitute inadmissible opinion testimony by the interrogating Detective about the strength of the evidence, [Detective's] comparison of this case to other cases, and [Detective's] belief in the credibility of the alleged victim." Defendant asserted that allowing the jury to view these portions would "usurp [its] function" and that the probative value of the evidence was substantially outweighed by the dangers of unfair prejudice or confusing or misleading the jury.
¶10 The court heard oral arguments on the issue during trial.3 Defendant clarified that he objected only to the portions of the video during which Detective opined about the strength of the evidence and Victim's credibility. The State opposed redacting the video. The prosecutor explained that the video was necessary and "very compelling evidence" because it showed that Defendant never asked questions about the specific details of the alleged sexual abuse that Detective referenced during the interview and because it showed Defendant's "bizarre demeanor and behavior," which included laughing and joking. The prosecutor argued that if the defense asserted that Defendant was wrongfully accused, then the State intended to rely on the video to argue that Defendant's reactions during the interview were "very unusual" and "not the kind of behavior that [one] would expect to see from somebody who believes he's been wrongfully accused." The prosecutor also argued that redacting the video would suggest to the jury that the State had "something to hide" and asserted that all of Detective's statements were necessary to "help put things in context."
¶11 The trial court denied Defendant's objection to portions of the video. It distinguished the cases Defendant cited in support of his position because they related specifically to instances of officers accusing suspects of lying and therefore were not "persuasive" with respect to "whether or not the video should come in." The court determined that because "none of [Detective's statements in the video] talk about any type of lying or deceit" and because the statements were merely "techniques" Detective used to talk to a suspect, it would not exclude any portions of the video.
¶12 The case proceeded to a jury trial in 2016. Victim testified that Defendant started abusing her when she was seven years old and they lived in another state, and that it continued when they moved to Utah the next year. When asked to describe the first instance of abuse in Utah, Victim recalled that late at night while her mother was at work, Defendant came into her room and explained that he was "going to snuggle and stuff" with her. While her younger sister slept on the top bunk of the bed, Defendant touched Victim's breasts with his hands, and Victim let it happen because she thought it was normal. The touching then "escalated" to Defendant touching Victim's buttocks and vagina over her clothes.
¶13 Victim testified that this kind of touching was "common" but that Defendant also touched her under her clothes. When asked to describe one such incident, Victim said that Defendant told her he "wanted to snuggle," but then he "put his hand under [her] shirt and started taking it off and touching [her] boobs." He also "took off [her] pants and [her] underwear" and started "rubbing" her vagina.
¶14 Victim estimated that when she was younger, Defendant would...
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...prejudicial effect of the errors we have identified. "Not every trial error requires reversal." State v. Klenz , 2018 UT App 201, ¶ 64, 437 P.3d 504 (quotation simplified). In particular, "[a]ny error, defect, irregularity or variance which does not affect the substantial rights of a party ......
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...or exclude evidence and will not overturn an evidentiary ruling absent an abuse of discretion." State v. Klenz, 2018 UT App 201, ¶ 30, 437 P.3d 504 (quotation simplified). But here we are hard-pressed to determine whether the trial court abused its discretion in admitting the challenged evi......
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...or exclude evidence and will not overturn an evidentiary ruling absent an abuse of discretion." State v. Klenz , 2018 UT App 201, ¶ 30, 437 P.3d 504 (quotation simplified). But here we are hard-pressed to determine whether the trial court abused its discretion in admitting the challenged ev......