State v. Marchet

• Decision Date: 19 July 2012
• Docket Number: No. 20090349–CA.,20090349–CA.
• Citation: 284 P.3d 668,2012 UT App 197,713 Utah Adv. Rep. 73
• Parties: STATE of Utah, Plaintiff and Appellee, v. Azlen Adieu Farquiot MARCHET, Defendant and Appellant.
• Court: Utah Court of Appeals

284 P.3d 668

713 Utah Adv. Rep. 73

2012 UT App 197

STATE of Utah, Plaintiff and Appellee,

v.Azlen Adieu Farquiot MARCHET, Defendant and Appellant.

No. 20090349–CA.

Court of Appeals of Utah.

July 19, 2012.

Herschel Bullen, Salt Lake City, for Appellant.

Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee.

Before Judges ORME, DAVIS, and ROTH.

OPINION

DAVIS, Judge:

¶ 1 Azlen Adieu Farquiot Marchet appeals from a conviction for rape, a first degree felony, seeUtah Code Ann. § 76–5–402 (2008).¹ We affirm.

BACKGROUND

¶ 2 M.P. met Marchet as she and a friend were sitting outside a dance club around 12:30 or 1:00 a.m. on July 1, 2004.² Marchet, who is between six feet six inches and six feet eight inches tall and at the time weighed around 275 pounds, introduced himself as Cody and invited M.P., who is around five feet six inches tall and at the time weighed around 135 pounds, and her friend to watch a movie at his home. The women declined. Marchet remained “[v]ery persistent” in his request that they watch a movie at his house and “[w]ouldn't leave it alone. [He j]ust kept asking” and “wasn't going to take no for an answer.” M.P. finally agreed to his invitation but “told him numerous times” that if he was “looking for action, [he had] the wrong girl.” Marchet “reassure[d M.P.] ... that that's not what was going to happen.”

¶ 3 Once at Marchet's condominium, M.P. set her purse and phone on the first-floor coffee table. Marchet led M.P. upstairs to his bedroom, indicating that that was where they would watch a movie, and then went into the attached bathroom to change his clothes without shutting the door. He lay down on the bed, wearing only silk pajama bottoms, and asked M.P. to cuddle with him. She declined, but Marchet persisted until she finally gave in and leaned stiffly toward him. Marchet then attempted to unbutton M.P.'s pants. M.P. repeatedly asked him to stop, and Marchet's actions became “more forceful and more aggressive.” Marchet pulled down M.P.'s pants, exposing her rear end, and penetrated her vaginally while positioned behind her. Realizing that Marchet “wasn't going to stop,” M.P. asked him to wear a condom to at least ease her concerns about contracting a disease or getting pregnant. Marchet complied, leaving M.P. alone in his bedroom for a few minutes while he went downstairs to get a condom. M.P. testified that she did not attempt to flee at that point because she did not believe she had enough time to “pull [her] pants up, get out of his room, go down the stairs, across the living room,” get her purse and keys from the coffee table, go “down three flights of stairs and cross the parking lot” to her car, as well as “get past a 275–pound man.” Marchet returned with a condom before M.P. could even finish buttoning her pants and penetrated her a second time, also from behind. Then, Marchet digitally penetrated her to retrieve the condom, which had fallen off. When Marchet finished, M.P. was shaking from pain and distress, but she led Marchet to believe she was just cold. Marchet forced her to cuddle again and then proceeded to penetrate her for the fourth and final time.

¶ 4 M.P. cried after the last penetration and lied and told Marchet she was crying because she had not had sex since her husband had died a few years before. She testified that she “was in survivor mode” and “didn't want him to ... think [she] was going to go to the police,” fearing that giving him that impression would jeopardize any likelihood that she would “get out of [there] alive” and return to her children. After the last penetration, they went downstairs and had a personal conversation for twenty to thirty minutes because M.P. believed she had “to make this guy think that [she was] not going to the police.” M.P. gathered her purse and commented that her cell phone was not on the coffee table where she had left it, at which point Marchet retrieved it from behind a pillow on the couch. Marchet then walked M.P. to the door and allowed her to leave without further incident.

¶ 5 In support of the charges for M.P.'s rape, the State was permitted to admit testimony of two other women who claimed that they were also raped by Marchet. The trial court determined that the witnesses' testimony was probative of Marchet's “intent, consent or lack thereof, plan or specific scheme and lack of mistake or accident.” After the first of these witnesses (Witness) testified about her experience of being raped by Marchet, which she delayed reporting for two years, defense counsel attempted to discredit her, asking, “And then you saw him on a number of occasions after that, didn't you?” Witness responded simply, stating, “A few times, yes.” In response to that exchange, the State was permitted to elicit testimony from Witness elaborating on her subsequent interactions with Marchet. Witness clarified that she had seen Marchet out at a club a couple of times after the incident, did not interact with him, and would leave after seeing him there. On one occasion, however, Witness interrupted a conversation Marchet was having with some other girls to warn them that they “probably don't want to talk to him” because “he's a rapist.” Witness testified that she then walked away and Marchet followed her and threatened her, saying, “ ‘You better F'ing watch your back.’ ” She saw Marchet one more time at a club after that incident. This time, Witness told one of her male friends who was at the club with her that Marchet had raped her. Her male friend approached Marchet, it appeared a fight was going to break out, and Witness left the club with a female friend. Marchet came running up to Witness, knocked Witness and her female friend to the ground, and proceeded to kick the female friend in the ribs. Witness testified that as she attempted to help her friend, Marchet looked at Witness and said, “ ‘I'm going to F'ing kill you,’ ” grabbed a glass beer bottle, and smashed it over Witness's head. Witness received six stitches at the hospital and at that point reported her rape by Marchet to the police.³

¶ 6 Marchet also testified, explaining that he believed his encounters with M.P. and the two witnesses were entirely consensual, that M.P.'s account was not accurate, that M.P. participated in the intercourse, did not say no, and expressed hesitation only about having a “one-night stand.” Marchet described M.P.'s attitude as having changed while the two were chatting after intercourse once she realized that Marchet knew her friend Miguel, whom Marchet believed was her boyfriend.

¶ 7 At the close of trial, Marchet requested an ignorance or mistake-of-fact jury instruction to support his defense that he believed M.P. consented. The trial court denied his proposed instruction, ruling that there was no basis for it in the evidence presented. The jury subsequently found Marchet guilty of raping M.P.

ISSUES AND STANDARDS OF REVIEW

¶ 8 Marchet appeals, arguing that the trial court erred in admitting evidence of the assault against Witness. “We review a trial court's decision to admit evidence under rule 404(b) [of the Utah Rules of Evidence] for an abuse of discretion.” State v. Ferguson, 2011 UT App 77, ¶ 10, 250 P.3d 89,cert. denied,262 P.3d 1187 (Utah 2011).

¶ 9 Marchet also argues that his trial counsel provided ineffective assistance in opening the door to the assault evidence. “Where, as here, a claim of ineffective assistance of counsel is raised for the first time on appeal without a prior evidentiary hearing, it presents a question of law.” State v. Bryant, 965 P.2d 539, 542 (Utah Ct.App.1998).

¶ 10 Last, Marchet argues that the trial court's refusal to give Marchet's requested jury instruction on ignorance or mistake constitutes reversible error.⁴ “Whether the trial court's refusal to give a proposed jury instruction constitutes error is a question of law, which we review for correctness.” State v. Hamilton, 827 P.2d 232, 238 (Utah 1992).

ANALYSIS

I. Assault Evidence

¶ 11 Marchet argues that the assault evidence “was highly inflammatory and prejudicial, not probative of any necessary element of the alleged crime against M.P., and suggest[s] a decision on ... an improper basis (hatred, contempt, retribution or horror),” in contravention of rules 402, 403, and 404(b) of the Utah Rules of Evidence. See generallyUtah R. Evid. 402 (“Irrelevant evidence is not admissible.”); id. R. 403 (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”); id. R. 404(b) (excluding evidence of prior crimes, wrongs, or bad acts except for noncharacter “purpose[s], such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident”). Marchet contends that “the volatility inherent in rape cases” rendered the trial court's error in admitting the assault evidence unfairly prejudicial because “[n]o rational juror could help but be impressed after hearing such evidence, that Marchet must simply be a bad man.” We disagree.

¶ 12 Assuming, without deciding, that the trial court erroneously admitted the assault evidence, we do not believe that the error warrants reversal of the jury verdict. “[We] will not overturn a jury verdict for the admission of improper evidence if the admission of the evidence did not reasonably [a]ffect the likelihood of a different verdict.” State v. Johnson, 2007 UT App 184, ¶ 34, 163 P.3d 695 (alterations in original) (internal quotation marks omitted).

¶ 13 Here, the issue at trial essentially came down to whether M.P. consented to having intercourse with Marchet, not whether Marchet believed she consented. M.P. testified that she did not consent but eventually stopped protesting out of fear for her own safety given Marchet's size and because she is a widow with...