State v. Lovato

• Decision Date: 07 June 1985
• Docket Number: No. 18993,18993
• Citation: 702 P.2d 101
• Parties: STATE of Utah, Plaintiff and Respondent, v. Joseph LOVATO, Defendant and Appellant.
• Court: Utah Supreme Court

Page 101

702 P.2d 101

STATE of Utah, Plaintiff and Respondent, v. Joseph LOVATO, Defendant and Appellant.

No. 18993.

Supreme Court of Utah.

June 7, 1985.

Joan Watt, Salt Lake Legal Defender Assn., Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., J. Stephen Mikita, Asst. Atty. Gen., Roger S. Blaylock and Ernie Jones, Deputy Salt Lake Co. Attys., Salt Lake City, for plaintiff and respondent.

DURHAM, Justice:

The defendant, Joseph Lovato, appeals from a conviction and a judgment of aggravated sexual assault, a first degree felony in violation of U.C.A., 1953, § 76-5-405 (1978). We affirm.

The defendant was among several people who dropped by the apartment of the complainant in the early hours of January 17, 1982. The group left the apartment after a couple of hours of talking and listening to music. About ten minutes later, the defendant returned to the apartment and asked the complainant if he could use her phone to call for a ride. The complainant let the defendant in, and the defendant made some phone calls. At this point, the facts testified to by the parties differ. The defendant's version follows.

After the defendant made some phone calls, the complainant told the defendant that she was pregnant and her boyfriend had left her. The complainant then went to the bathroom and returned wearing only a white jersey and black panties and invited the defendant into the bedroom. By mutual consent, they had sexual intercourse, during which the defendant remained dressed.

During intercourse, the defendant's pocketknife fell out of his pocket. The complainant found the knife in the bed and gave it to the defendant.

After intercourse, the defendant and the complainant turned on the television and talked. At about 6:00 a.m., the defendant helped the complainant find the phone number of her "father" in the phone book. While the complainant was talking to her "father," who was actually an older friend of the complainant's, the defendant fell asleep on the bed.

The complainant's testimony about these events differs in all of the material specifics. She testified as follows:

After the complainant let the defendant in and he used the phone, she requested that he leave. At that point, the defendant grabbed the complainant by the throat and put his open pocketknife to her head and throat and demanded sexual intercourse. A struggle began, and during the course of it, the defendant lost his knife in the bed. He then put a towel around complainant's throat. She was ultimately unable to stop the defendant from removing her pants and forcing her to have sexual intercourse.

It is undisputed that at about 6:20 a.m., the complainant's friend arrived at the apartment and was asked by means of a written note shown through the window by the complainant to call the police. The police arrived, found the defendant asleep on the bed, and handcuffed him. Upon arresting the defendant, the arresting officer confiscated the defendant's pocketknife. Subsequently, the knife was lost by the prosecution and not placed into evidence at trial.

In counseling with a rape crisis volunteer immediately following the arrest, the complainant said that the last date on which she had engaged in sexual intercourse previous to this incident had been two days before, on January 15, 1982. Following a physical examination, the complainant was given medication to abort a possible pregnancy and to eliminate venereal disease. This was a routine procedure for alleged rape victims.

The defendant asserts that the complainant lured the defendant into consensual intercourse and fabricated a rape charge because she required medication for an abortion and for venereal disease and because she wanted to retaliate against the defendant's girlfriend for an act of vandalism she believed the latter had committed.

On appeal, the defendant raises four issues: first, whether the trial court's exclusion of the evidence of the complainant's last sexual intercourse prior to the incident was prejudicial error; second, whether the loss by the prosecution of the defendant's pocketknife was a violation of due process as a deliberate suppression or destruction of material evidence; third, whether there was insuffficient evidence as a matter of law to sustain the conviction; and fourth, whether the trial court properly instructed the jury as to the applicable law concerning consent and alleged inconsistent statements made by the complainant.

I

The defendant argues that the evidence that complainant had intercourse within forty-eight hours of the incident was relevant to the issues of consent and her credibility, and this relevancy outweighed any risk of undue prejudice or confusion of the issues. The defendant further argues that the failure to admit this evidence inhibited his opportunity to establish the complainant's motive to testify falsely and to otherwise cross-examine her, which violated the defendant's right to confront the witnesses against him, thereby depriving him of due process of law.

In State v. Johns, Utah, 615 P.2d 1260 (1980), we set forth the following rule, which is also applicable in the instant case:

While the balancing of the probative value of the evidence and its detrimental effect is entrusted to the discretion of the trial judge in the usual case such evidence, either of general reputation or specific prior acts, is simply not relevant to any issue in the rape prosecution including the consent of the prosecutrix. Such evidence is admissible only when the court finds under the circumstances of the particular case such evidence is relevant to a material factual dispute and its probative value outweighs the inherent danger of unfair prejudice to the prosecutrix, confusion of issues, unwarranted invasion of the complainant's privacy, considerations of undue delay and time waste and the needless presentation of cumulative evidence.

However, absent circumstances which enhance its probative value, evidence of a rape victim's sexual promiscuity, whether in the form of testimony concerning her general reputation or testimony concerning specific acts with persons other than defendant is ordinarily insufficiently probative to outweigh the highly prejudicial effect of its introduction at trial.

Id. at 1264 (footnotes omitted; emphasis added).

An examination of the facts in the present case precludes a conclusion that the circumstances surrounding the incident enhance the probative value of the complainant's prior consensual intercourse. The complainant did not know the defendant prior to the morning of the incident. ¹ The defendant admitted the commission of sodomy and sexual intercourse, thus there was no need to admit evidence of the complainant's last intercourse to explain the presence of semen. The specific act of sexual intercourse that the defendant sought to introduce into evidence occurred just two days prior to the incident in question, which, because of the short interval, minimizes rather than enhances the defendant's theory that the complainant thought she was pregnant and fabricated her accusations in order to obtain medication to induce an abortion. Her statement to the defendant that she was pregnant was explained by her testimony that she told the defendant she was pregnant during the course of the assault so that the defendant would not "throw" her around.

Under these circumstances, evidence of the complainant's last consensual intercourse was not relevant to the issue of her consent. We conclude, therefore, that the trial judge did not abuse his discretion in excluding that evidence.

Regarding the contentions that the defendant was denied the opportunity to challenge the complainant's credibility and that he was denied his constitutional right of confrontation, Johns is also controlling. There we said, "[T]he Sixth Amendment right to confrontation requires only that the accused be permitted to introduce all relevant and admissible evidence." And "the law does not and should not recognize any connection between the veracity of a witness and her sexual promiscuity." Id., 615 P.2d at 1264 (footnotes omitted). The defendant's theory of fabrication does not remove the instant case from these rules. The defendant was not denied his right to confront the complainant and challenge her veracity. A long and thorough cross-examination was conducted of the complainant by the defendant's counsel. In addition, the defendant himself took the stand. In both contexts, the defendant had an opportunity to attack the credibility of the complainant. Indeed, the defendant thoroughly developed, through his testimony, his theory that the complainant was pregnant, that she transmitted venereal disease to him, and that she was angry at the person supposed to be his girlfriend. This testimony contradicted the complainant's testimony and directly challenged her veracity. Because the date of her last consensual intercourse was not relevant to any issue in the trial, as discussed above, its exclusion did not deprive the defendant of a constitutional right.

II

The defendant also contends that his due process rights were violated by the State's failure to preserve his pocketknife for admission into evidence at trial. He specifically argues that the knife was material to the case, that there was a reasonable possibility that the admission of the knife would have tended to exculpate him, and that it is likely that admission of the knife would have had a significant impact on the jury.

In State v. Stewart, Utah, 544 P.2d 477 (1975), we said, "[A] deliberate suppression or destruction of evidence by those charged with the prosecution, including police officers, constitutes a denial of due process if the evidence is material to guilt or innocence of the defendant in a criminal case...." Id. at 479 (emphasis added). We clarified this proposition in State v. Nebeker, Utah, 657 P.2d 1359 (1983), where we said, "The materiality required...