State v. Marchet

• Decision Date: 17 September 2009
• Docket Number: No. 20080186-CA.,20080186-CA.
• Citation: 2009 UT App 262,219 P.3d 75
• Parties: STATE of Utah, Plaintiff and Appellee, v. Azlen Adieu Forquoit MARCHET, Defendant and Appellant.
• Court: Utah Court of Appeals

219 P.3d 75

2009 UT App 262

STATE of Utah, Plaintiff and Appellee, v. Azlen Adieu Forquoit MARCHET, Defendant and Appellant.

No. 20080186-CA.

Court of Appeals of Utah.

September 17, 2009.

Ronald J. Yengich and Elizabeth Hunt, Salt Lake City, for Appellant.

Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee.

Before Judges THORNE, BENCH, and McHUGH.

AMENDED OPINION¹

McHUGH, Judge:

¶ 1 Azlen Adieu Forquoit Marchet appeals from a conviction for rape, a first degree felony, see Utah Code Ann. § 76-5-402 (2008).² Marchet contends that the trial court did not properly instruct the jury as to the required mental state for the crime of rape. He also claims that his trial counsel was ineffective in failing to request a mistake of fact instruction. Finally, he argues that the trial court erred in admitting the testimony of other women who alleged that Marchet had raped them. See generally Utah R. Evid. 404(b) (stating that evidence of the defendant's other bad acts may be admitted in certain circumstances). We affirm.

BACKGROUND

¶ 2 On April 29, 2005, Marchet was charged by information with the rape of B.F., committed during the fall of 2002. The State moved to admit testimony from three other women who claimed that Marchet had also raped them. The State argued that the admission of this testimony was proper under rule 404(b) of the Utah Rules of Evidence. Judge Timothy R. Hanson disagreed and denied the State's motion.

¶ 3 The case was later assigned to Judge Robert K. Hilder, and the State renewed its motion to admit testimony from three of Marchet's accusers, including evidence from two women whose testimonies were not offered in the State's first motion to Judge Hanson. The State argued that admission of the testimony was proper to show Marchet's intent, preparation, plan, knowledge, absence of mistake or accident, and B.F.'s lack of consent. During the evidentiary hearings on the motion, the trial court heard testimony from B.F. and from two other alleged victims, M.P. and N.R. The court also reviewed the transcript from the unsuccessful prosecution of a prior rape charge against Marchet, including the testimony of J.C., the complainant in that case.

¶ 4 After comparing the witnesses' testimony, Judge Hilder identified factual similarities between B.F.'s allegations and the allegations of M.P., J.C., and N.R. Of those similarities, the trial court highlighted four that it found particularly probative of the issue of consent: (1) Marchet's initial charm, followed by persistence and the exercise of physical power; (2) escalation in the intensity of his sexual advances, which all occurred in Marchet's home shortly after meeting; (3) forceful removal of the women's clothing after he was told to stop; and (4) penetration from behind during the sexual encounter. The court granted the State's motion to admit testimony from M.P. and J.C., but excluded the testimony of N.R.³

¶ 5 During its opening statement, the State informed the jury that testimony from the other women would be presented to show that Marchet "had a set plan." The State explained that the jury could also consider the testimony "to decide if [B.F.] did[ ] or did not consent to sexual intercourse with [Marchet]."

B.F.'s Testimony

¶ 6 At trial, B.F. testified that she met Marchet at a Salt Lake City dance club in the fall of 2002. B.F. noted that Marchet weighed approximately 250 pounds and was well over six feet tall, while she weighed 120 pounds and was five feet five inches tall. Marchet was friendly and repeatedly requested that B.F. come to his home. B.F. refused but invited Marchet to join her at the home of her friend, Vhanessa. Marchet followed B.F. and Vhanessa to a gas station where he left his car and rode in B.F.'s car to Vhanessa's home.

¶ 7 While at Vhanessa's home, B.F. claimed she had no sexual contact with Marchet. Although Marchet continued to invite B.F. to accompany him to his home, she refused. Around 3:00 a.m., she agreed to drive him back to his car. Their route took them past where Marchet had left his car, but he directed her to his apartment instead. Marchet then persuaded B.F. to come inside. Upon entering the apartment, B.F. put her cell phone and car keys in clear view on the coffee table or couch in the living room.

¶ 8 Marchet took B.F. upstairs to his bedroom to watch a movie. B.F. sat on Marchet's bed, which was the only piece of furniture in the room. Marchet pushed B.F. back onto the bed and began trying to remove her clothing. When B.F. protested, Marchet said, "You know you want this." After lowering B.F.'s pants to her knees, Marchet left the room to get a condom. B.F. pulled up her pants, and when Marchet reentered the room, she told him that she did not want to have sex with him. At that point, Marchet used his body weight to restrain B.F. while he undressed and raped her. During the rape, Marchet positioned B.F. to penetrate her from behind.

¶ 9 When B.F. got up to dress, Marchet insisted on walking B.F. to her car. On her way out, B.F. grabbed her car keys, which were in plain view, but did not see her cell phone. Marchet then pulled her cell phone from under a couch cushion. Marchet acted like "a perfect gentleman" as he walked B.F. to her car; he told B.F. that it did not have to be a "one night stand" and that he would call her later. B.F. responded that he did not have to call. Although B.F. told Vhanessa about the rape the next day, she did not report it to authorities until 2005, over two years after the incident.

M.P.'s Testimony

¶ 10 The State introduced the testimony of M.P. in support of B.F.'s allegations that her sexual intercourse with Marchet was nonconsensual. M.P. testified that she met Marchet, who introduced himself as Cody, at a dance club in July 2004. Shortly after meeting, Marchet asked M.P. on a date and she told him, "no." However, Marchet was "very persistent" and persuaded her to go to his house that night to watch a movie.

¶ 11 When M.P. entered Marchet's home, she placed her purse and cell phone on the coffee table in the living room. Marchet told M.P. that the only television in the house was in his bedroom. Once in his bedroom, Marchet turned on a movie while M.P. sat on the edge of the bed. Marchet lay down next to M.P. and pulled her into a "spooning" position with his chest to M.P.'s back. When he began to kiss M.P.'s shoulders and back, M.P. told him to stop. Marchet then reached forward, removed M.P.'s pants, and began to rape her, penetrating her from behind. M.P. repeatedly told him to stop. Marchet became increasingly forceful, using his body weight to restrain M.P. At some point, the condom Marchet was wearing fell off and M.P. noticed it had blood on it. After the rape, M.P. attempted to dress, but Marchet pulled her back onto his bed to "cuddle." When M.P. protested, Marchet began raping her again.

¶ 12 As she prepared to leave, M.P. found her purse where she left it on the coffee table, but she did not see her cell phone. Marchet then removed her phone from behind a couch cushion. M.P. went home and bathed. In the morning she called her neighbor, a Sandy City police officer, and reported the rape.

J.C.'s Testimony

¶ 13 The State also offered the testimony of J.C. as evidence in the trial on the charges stemming from B.F.'s allegations. J.C. testified that she met Marchet at a downtown bar in March 2005; she gave him her telephone number. Marchet called her the next day and said his name was Cody. J.C. agreed to meet Marchet at his home later that evening. When J.C. arrived at Marchet's home, he suggested that they watch a movie. J.C. agreed, although she told him she had plans to meet friends and could not stay long.

¶ 14 Marchet took her to his bedroom to watch the movie and J.C. sat on the edge of the bed. Marchet lay next to J.C. and put his hand on her thigh. J.C. told Marchet she "didn't feel comfortable with that and pushed [his hand] off." Marchet then pulled J.C. into a "spooning" position. After several minutes of lying in that position, Marchet attempted to remove J.C.'s pants, and J.C. pulled them back on. Marchet then became aggressive, restraining J.C. while he removed her clothing. He positioned J.C.'s body so she was "on all fours" and began to rape her. Marchet pulled J.C.'s hair, forcing her to look into a mirror while he raped her. When she closed her eyes, he bit her until she opened them. J.C. claimed she did not verbally protest during the rape because she was afraid of Marchet. After J.C. dressed, Marchet walked her to her car and kissed her on the mouth. J.C. reported the rape to authorities the next day.⁴

Marchet's Testimony

¶ 15 Marchet also testified at trial. He agreed that he and B.F. had sexual intercourse but claimed it had been consensual. He stated that he and B.F. "kissed" and had "sexual contact" while at Vhanessa's house. Marchet testified that he and B.F. then left for his home, went directly to his bedroom, and engaged in consensual sexual intercourse. He claimed that at 7:45 that morning he and B.F. picked up his car and then returned to his apartment and had sex again. Marchet stated that he and B.F. had "textbook sex" that night but because she did not return his calls, they did not go out again.

¶ 16 During closing argument, the prosecutor reminded the jury that they were "entitled to consider the testimony of M[.P.] and ... J[.C.] in assessing whether or not [B.F.] consented [and] in assessing [Marchet's] plan." The State added that the testimony of M.P. and J.C. could be relied on for purposes of "show[ing] intent, ... absence of mistake [and,] ... that B[.F.] did not consent to having sex with [Marchet]." Marchet was convicted of rape, and this appeal followed.

ISSUES AND STANDARDS OF REVIEW

¶ 17 On appeal, Marchet contends that the trial court incorrectly instructed the jury as to the proper mental state for the consent element of the crime of rape. "Whether a jury instruction...