State v. Leber

• Citation: 216 P.3d 964,2009 UT 59
• Decision Date: 04 September 2009
• Docket Number: No. 20070820.,20070820.
• Parties: STATE of Utah, Plaintiff and Respondent, v. Kenneth Anthony LEBER, Defendant and Petitioner.
• Court: Supreme Court of Utah

216 P.3d 964

2009 UT 59

STATE of Utah, Plaintiff and Respondent, v. Kenneth Anthony LEBER, Defendant and Petitioner.

No. 20070820.

Supreme Court of Utah.

September 4, 2009.

Mark L. Shurtleff, Att'y Gen., Marian Decker, Asst. Att'y Gen., Salt Lake City, for plaintiff.

Troy L. Booher, Katherine Carreau, Briant Platt, Salt Lake City, for defendant.

On Certiorari to the Utah Court of Appeals

PARRISH, Justice:

INTRODUCTION

¶ 1 Petitioner Kenneth Leber was convicted by a jury of second degree felony child abuse pursuant to Utah Code section 76-5-109(2)(a). Leber appealed his conviction and sought a new trial based in part on a theory that the trial court abused its discretion by admitting evidence of Leber's prior bad acts under rule 404(a) of the Utah Rules of Evidence. The court of appeals found that the trial court did not abuse its discretion and therefore upheld the jury verdict.

¶ 2 We initially granted certiorari to determine whether the court of appeals erred in declining to apply rules 402 and 403 before admitting evidence of Leber's violent character under rule 404(a). However, as a threshold issue, we find that the trial court erred in admitting evidence of Leber's prior bad acts under rule 404(a) and rule 405, and therefore remand to the court of appeals to determine whether the trial court's error would have required reversal on direct appeal.

FACTUAL BACKGROUND

¶ 3 On January 28, 2006, Kenneth Leber and his intoxicated fifteen-year-old son, M.L., had a disagreement over the volume of M.L.'s electric guitar that ultimately resulted in a physical altercation. Police later found M.L. at a grocery store near Leber's mobile home with a bloody mouth, swollen eye, and marks on his neck. At Leber's mobile home, police discovered a mirror broken in two places and blood in the hallway and bathroom sink. Leber admitted to the altercation, but he told the police that his son had been the aggressor and that he was merely defending himself.

PROCEDURAL HISTORY

¶ 4 Leber was charged with second degree felony child abuse. See Utah Code Ann. § 76-5-109(2)(a) (Supp.2006). Prior to trial, the district court granted Leber's motion to exclude evidence of his prior bad acts. However, during trial, the court ruled that Leber opened the door to his character trait for violence under rule 404(a) of the Utah Rules of Evidence by attempting to demonstrate M.L.'s violent character. Specifically, during opening statements, Leber's counsel stated,

You're gonna hear that this is a teenage child that Mr. Leber has had trouble with, in the past. He was acting up that day. It was, in fact, the child that attacked Mr. Leber.

Later, Leber's counsel questioned M.L. about a fight between M.L. and his mother's boyfriend. Finally, Leber indicated to the trial court that he intended to "show that [M.L.] has been obstreperous towards his dad . . . and that he took actions against his dad. That [M.L.] had the type of nature that he's done things against his dad in the past."

¶ 5 Finding that Leber had opened the door by offering evidence of the victim's violent character, the trial court allowed the State to proffer evidence of Leber's violent character in the form of reputation and opinion evidence as well as through evidence of specific instances of past violence. Indeed, the trial court instructed the State that it could question Leber on cross-examination about his prior bad acts. The trial court's ruling resulted in the admission of evidence of (1) Leber's 1996 conviction for child abuse, (2) a 2003 assault committed by Leber in Alaska, (3) a 2001 incident of domestic violence against Leber's ex-wife, (4) evidence that Leber had engaged in domestic violence "too many" times to count, (5) evidence that Leber had abused his children "several" times, and (6) the opinion of Leber's ex-wife that Leber is violent with children.

¶ 6 The jury convicted Leber, and he was sentenced to one to fifteen years in the Utah State Prison. After trial, Leber acquired new counsel and appealed his conviction. Leber's appellate counsel argued that the trial court abused its discretion by admitting evidence of Leber's prior bad acts under rules 404(a) and 405 of the Utah Rules of Evidence without first complying with the requirements of rule 404(b).

¶ 7 The court of appeals affirmed the evidentiary rulings of the trial court. State v. Leber, 2007 UT App 273, ¶¶ 6-15, 167 P.3d 1091. Leber again obtained new counsel and filed a petition for certiorari, which we granted. We have jurisdiction in this case pursuant to Utah Code section 78A-3-102(3)(a) (2008).

STANDARD OF REVIEW

¶ 8 On certiorari we review the court of appeals' decision for correctness with no deference to its legal conclusions. See State v. Worwood, 2007 UT 47, ¶ 11, 164 P.3d 397; Thomas v. Color Country Mgmt., 2004 UT 12, ¶ 9, 84 P.3d 1201.

ANALYSIS

I. SCOPE OF CERTIORARI

¶ 9 We granted certiorari to determine "[w]hether the court of appeals erred in declining to apply rules 402 and 403 of the Utah Rules of Evidence in connection with its consideration of admissibility of evidence under rule 404(a)." In addition to this issue, Leber urges us to consider (1) whether the trial court erred in its initial determination that Leber's character was at issue under rule 404(a), and (2) whether the trial court erred by allowing the State to cross-examine Leber regarding prior bad acts under rules 404(a) and 405. The State argues that these additional issues fall outside the scope of our order granting certiorari and that we should therefore decline to address them. We disagree.

¶ 10 In determining the scope of an order granting certiorari we are guided by rule 49(a)(4) of the Utah Rules of Appellate Procedure, which states that "[o]nly the questions set forth in the petition or fairly included therein will be considered by the Supreme Court." Utah R.App. P. 49(a)(4) (emphasis added). Questions presented for review within the petition for certiorari "will be deemed to comprise every subsidiary question fairly included therein." Id. Furthermore, "this rule should be construed broadly to avoid the rigid exclusion of reviewable issues, however peripheral." Sevy v. Sec. Title Co., 902 P.2d 629, 637 (Utah 1995).

¶ 11 In this case, the certiorari question regarding whether the court of appeals erred by failing to consider the applicability of rules 402 and 403 in conjunction with evidence of Leber's violent character and prior bad acts that were admitted under rule 404(a) subsumes a threshold question. That question is whether the evidence of Leber's violent character and prior bad acts were properly admitted in the first instance under rules 404(a) and 405. Indeed, the primary reason this case is before us is because the trial court admitted evidence of Leber's prior bad acts under rules 404(a) and 405, instead of under rule 404(b), and the court of appeals erred when it failed to address these dispositive issues¹ that were properly before it.² Construing rule 49(a)(4) broadly, we hold that the admissibility of Leber's violent character and prior bad acts under rules 404(a) and 405 is a subsidiary question fairly included within the question on which we granted certiorari and is therefore properly before us.

II. EVIDENCE OF LEBER'S PRIOR BAD ACTS WERE NOT ADMISSIBLE UNDER RULES 404(a) AND 405

¶ 12 The trial court abused its discretion when it ruled that Leber opened the door to evidence of his violent character under rule 404(a) and subsequently allowed the State to offer evidence of Leber's prior bad acts to prove Leber's violent character. Appellate courts review a trial court's decision to admit character evidence and prior bad acts under an abuse of discretion standard. See State v. DeCorso, 1999 UT 57, ¶ 18, 993 P.2d 837.

¶ 13 Rule 404(a) of the Utah Rules of Evidence acts as a general bar to "[e]vidence of a person's character . . . for the purpose of proving action in conformity therewith on a particular occasion. . . ." Utah R. Evid. 404(a). The exceptions to this general rule allow an accused to offer evidence of a "pertinent trait of character" either of himself or of an alleged victim. Utah R. Evid. 404(a)(1)-(2); see also Perrin v. Anderson, 784 F.2d 1040, 1044 (10th Cir.1986). However, when an accused offers such evidence, the prosecution may "rebut the same" or offer "evidence of the same trait of character of the accused." Utah R. Evid. 404(a)(1)-(2); see also Perrin, 784 F.2d at 1044. Once character evidence is deemed admissible under rule 404(a), the methods of proving character are limited by rule 405. Rule 405(a) mandates that proof of character "be made by testimony as to reputation or . . . in the form of an opinion," and allows witnesses providing such testimony to be cross-examined about "relevant specific instances of conduct." Utah R. Evid. 405(a). On the other hand, rule 405(b) allows for proof of character through the use of "[s]pecific instances of conduct" only where character is an "essential element of a charge, claim, or defense." Utah R. Evid. 405(b). Having laid out this brief introduction, we now consider whether Leber opened the door to evidence of his character for violence under rule 404(a), and if so, whether it was appropriate to admit evidence of Leber's prior bad acts under rule 405.

A. The Trial Court Abused Its Discretion in Ruling That Leber Opened the Door to His Violent Character Under Rule 404(a)

¶ 14 Leber argues that the trial court erred in ruling that he opened the door to evidence of his violent character under rule 404(a). Rule 404(a) generally bars character propensity evidence of the accused, victim, or a witness. Utah R. Evid. 404(a); see also State v. Vargas, 2001 UT 5, ¶¶ 30-31, 20 P.3d 271. However, when an accused offers "[e]vidence of a pertinent trait of character of the alleged victim of the crime," the prosecution may offer "evidence of the same trait of character of the accused." Utah R. Evid. 404(a)(1)-(2).

¶ 15 At...