State v. Kooyman

Citation2005 UT App 222,112 P.3d 1252
Decision Date19 May 2005
Docket NumberNo. 20030255-CA.,20030255-CA.
PartiesSTATE of Utah, Plaintiff and Appellee, v. Michael Anthony KOOYMAN, Defendant and Appellant.
CourtUtah Court of Appeals

112 P.3d 1252
2005 UT App 222

STATE of Utah, Plaintiff and Appellee,
v.
Michael Anthony KOOYMAN, Defendant and Appellant

No. 20030255-CA.

Court of Appeals of Utah.

May 19, 2005.

Rehearing Denied June 15, 2005.


112 P.3d 1255
James C. Bradshaw, Brown Bradshaw Anderson & Moffat, Salt Lake City, and Andrew Parnes, Ketchum, Idaho, for Appellant

Mark L. Shurtleff, Attorney General, and Laura B. Dupaix, Assistant Attorney General, Salt Lake City, for Appellee.

Before Judges DAVIS, JACKSON, and THORNE.

OPINION

THORNE, Judge:

¶ 1 Michael Anthony Kooyman appeals from his conviction for Forcible Sexual Abuse, a second degree felony, in violation of Utah Code section 76-5-404 (1999).

BACKGROUND

¶ 2 Early in the morning of March 20, 2001, L.S., a forty-one-year-old single female, awoke with no memory of where she had been or what she had been doing the previous evening after about seven o'clock. Although she was feeling ill — a condition that caused her to vomit soon after rising, and to experience diarrhea and nose bleeds throughout the day — she was certain she had not consumed a large amount of alcohol. She took a moment to inventory her physical state, and quickly determined that her nipples were sore and her genitals were swollen and painful, a sure sign to her of recent sexual activity. This concerned her because she was neither involved in a relationship, nor was she promiscuous. As she considered the events that she could remember from the previous evening, she was struck by a sudden dissonant memory. In the memory, she was standing in the bedroom of her client, Michael Kooyman, and he was holding her head

112 P.3d 1256
and forcing her to look at a wet spot on the bed saying, "Oh I know what you've done. I know where you've been. Look at what you did." Later, L.S. called the rape crisis center for counseling, and the following day she contacted the police and reported that she had been raped by Kooyman

¶ 3 On March 26, 2001, police officers executed a search warrant on Kooyman's home. When no one answered their knocks, they forced entrance and found Kooyman in the shower. He was allowed to dress and was then handcuffed and led to the living room where he was placed in a chair. Although the detective in charge, detective Richards, informed the other officers that no one was to talk to or question Kooyman, one of the officers asked Kooyman if he had any guns in the home. Kooyman answered in the affirmative and told the officer where the guns were located in the house. Kooyman was then virtually ignored until he began questioning one of the detectives in the room about the reasons for the search and informed the detective that he was willing to cooperate. The detective retrieved Richards, who arrived and removed the handcuffs from Kooyman's wrists. When Kooyman asked Richards why the police were in the home, Richards answered that they were seeking "rave scene drugs." Kooyman cooperatively stated that he would help the police find the drugs, but he then, without any explanation, asked "who is this about." Richards told him that he was investigating the rape of L.S., which prompted Kooyman to exclaim "I didn't f* * * her. I only used my finger." He punctuated his statement with a gesture, apparently attempting to demonstrate what he had done.

¶ 4 During the search, police found L.S.'s clothing and shoes. Some of the clothing L.S. remembered taking off when she had changed clothes at Kooyman's, but she had little or no memory of removing other portions. The police also seized Kooyman's sheets, which tested negative for semen; several water bottles, which tested negative for GHB and other rave drugs; photographs of women in various states of undress; and several pieces of rave paraphernalia. Kooyman was arrested and charged with the forcible sexual abuse of L.S.

¶ 5 During the trial, the State presented both expert testimony and the testimonies of L.S., her daughter, and detectives Richards and Lambert. Kooyman objected to portions of testimony from each witness. The experts testified to the effects of GHB, ketamine, and other "rave scene drugs," and opined that L.S.'s description of her physical state was similar to the expected effects caused by some of these drugs. L.S. testified that she was an executive house cleaner who had been referred to Kooyman in October 2000 by a friend, who had incidentally warned L.S. that Kooyman was "pretty much a jerk." Kooyman told her that he was part owner of a prominent local construction company, but that he had no duties. After taking the job, L.S. sought to find a day that Kooyman would not be at home, because when he was there his comments were sexually charged and unwelcome. She would frequently encounter sexual paraphernalia, women's lingerie, rope, and handcuffs while cleaning, and Kooyman would regularly approach her and ask her to "check out" some photographs he had taken of women in compromising sexual, or quasi-sexual, situations. During one of these exchanges, Kooyman surreptitiously took a picture of L.S. with his wristwatch, and showed the picture to her as it appeared on his computer.

¶ 6 L.S. also testified that she learned of the existence of GHB from Kooyman, who, after she started cleaning his house, warned her not to throw away any water bottles because they might contain his "G." L.S. further testified that Kooyman had, on several occasions, offered her GHB, but that she refused every time. She further testified that on Thanksgiving day 2000, while at a party hosted by L.S., Kooyman told her that his water bottle contained GHB and he offered it to at least one other guest. Through her association with Kooyman, and through cleaning his house, L.S. learned that Kooyman was heavily involved in the rave scene. However, when he invited her to attend rave parties with him, L.S. consistently refused.

¶ 7 Finally, L.S. testified about the day of the sexual assault. She arrived at Kooyman's

112 P.3d 1257
house at about 10:30 in the morning, expecting him to be gone or to be leaving soon. He was still at the home, getting ready for school, so L.S. began to clean. He cautioned her not to throw away a water bottle that was on the table because it contained GHB. As was normal for her when he made such a request, she took the bottle and stored it in the kitchen. At about noon, Kooyman backed his car out of the garage to go to school, but he miscalculated the distance between his car and hers and collided with her car, disabling it. He then called his mother, his insurance agent, and a tow truck to take L.S.'s car to a repair shop. He and L.S. then drove to a rental car agency to obtain a car for L.S. while her car was being repaired. They drove back to Kooyman's home at about 3:30 in the afternoon, where they waited for the tow truck and the insurance adjuster to arrive

¶ 8 During the wait, an acquaintance of Kooyman's, a woman named Bonnie Jo, arrived. Kooyman described her to L.S. as his "afternoon tail" who "comes and gives me blow jobs." He also explained to L.S., after informing Bonnie Jo that she was early, that he "didn't get a chance to rub one out" and that he tries "to masturbate a couple times a day." It is unclear whether Kooyman left L.S. alone while he entertained Bonnie Jo, but L.S. testified that Bonnie Jo left after about an hour. After she left, Kooyman offered to buy L.S. dinner, an offer she declined. He then made drinks for both of them — margaritas. As they were drinking, the adjuster and the tow truck arrived and all arrangements concerning L.S.'s car were completed at around six p.m. Because of the late hour, L.S. called and canceled her next scheduled cleaning appointment, scheduled for seven p.m., and called her daughter to tell her she would be home soon to make dinner.

¶ 9 As L.S. was finishing her drink, Kooyman called a friend and invited him over. L.S. then asked if Kooyman would permit her to change into one of several pairs of jeans that hung in his closet. He agreed, so she went to his room, shed her sweat pants, and put on some jeans. However, she left all of her other clothing on. By the time she returned, Kooyman's friend had arrived. Kooyman made additional margaritas, and then went to the liquor store to pick up two more bottles of premixed margaritas. Upon his return, at about seven p.m., he was disappointed to learn that both his friend and L.S. had to leave. The friend left, then L.S. collected her belongings and walked toward the front door where she became groggy and began to lose consciousness. The next thing she was aware of was waking in her own bed, in different clothing, at three a.m. the next day. She remembered Kooyman offering her a cigarette, which she took even though she does not smoke, and Kooyman forcing her to look at the wet spot on the bed. Her testimony was unequivocal concerning the amount of alcohol that she had consumed while with Kooyman and that the amount she had consumed was not enough to have caused her to black out. She was equally unequivocal in her testimony that she did not consent to, and would not have consented to, any sexual activity with Kooyman.

¶ 10 L.S.'s daughter, A.C., testified that her mother called her twice, once to inform her that she would be home at about seven p.m. to make dinner, and then once again at about seven p.m. — a call that L.S. did not remember making. A.C. testified that L.S. sounded normal during the second call, but she could not recall why L.S. had called. However, before the call ended, Kooyman took the phone from L.S. and invited A.C. over for a drink. She declined and Kooyman then told her he would "take good care of [her] mom." A.C. did not hear anything further from her mother until 8:30 p.m., when L.S. arrived home in the rented car. At that time, A.C. perceived L.S. to be "a little sloppy" and "not normal."

¶ 11 The State also offered the testimony of detectives Richards and Lambert, both of whom were involved in the search of...

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