State v. Marks

• Decision Date: 11 August 2011
• Docket Number: No. 20090199–CA.,20090199–CA.
• Citation: 688 Utah Adv. Rep. 17,262 P.3d 13,2011 UT App 262
• Parties: STATE of Utah, Plaintiff and Appellee,v.Billy J. MARKS, Defendant and Appellant.
• Court: Utah Court of Appeals

262 P.3d 13
688 Utah Adv. Rep. 17
2011 UT App 262

STATE of Utah, Plaintiff and Appellee,
v.
Billy J. MARKS, Defendant and Appellant.

No. 20090199–CA.

Court of Appeals of Utah.

Aug. 11, 2011.

[262 P.3d 16]

Lori J. Seppi and Denise M. Porter, Salt Lake City, for Appellant.Mark L. Shurtleff and Christine F. Soltis, Salt Lake City, for Appellee.Before Judges DAVIS, McHUGH, and ROTH.OPINION McHUGH, Associate Presiding Judge:

¶ 1 Billy J. Marks appeals from his conviction of one count of sodomy upon a child, a first degree felony, see Utah Code Ann. § 76–5–403.1 (1999). Marks argues that the trial court erred by refusing to permit him to question the complainant (Grandson) about previous sexual behavior and by denying Marks's motion to dismiss for insufficiency of the evidence. We affirm.

BACKGROUND

¶ 2 Grandson's maternal grandmother (Grandmother) was married to Marks at the time Grandson was born. When Grandson was two months old, he had a seizure and was diagnosed with meningitis encephalitis. Grandson's illness left him “mentally challenged.” Although Grandson was in tenth grade at the time of trial, he attended only special education classes and functioned at approximately the level of a third- or fourth-grade student. Because Grandson's mother was unable to care for him, Grandmother and Marks became his guardians. Grandmother and Marks divorced in 2001, but Grandson continued to visit Marks on a regular basis, and the two maintained a “very strong” relationship.

¶ 3 In July or August 2006, Grandson disclosed to Grandmother, and later to his uncle (Uncle), that Marks had orally sodomized him the previous summer. Grandmother contacted the police and Grandson was interviewed at the Children's Justice Center (CJC). The CJC videotaped the interview of Grandson describing the incident. Based on Grandson's allegations, Marks was charged with one count of sodomy upon a child.

¶ 4 At the preliminary hearing, Grandmother revealed that sometime in the fall of 2005, she discovered Grandson with his seven-year-old sister (Sister), “touching [Sister's] breasts[ ] and ... getting on top of her like they were having sex.” Both children were in their underwear at the time. When Grandmother questioned him about the incident, Grandson told her that he “didn't understand what [he] was doing.” Grandson was twelve or thirteen at the time of this incident. Then, sometime in the first three months of 2006, Grandmother found Grandson with a picture “of women ... [e]ngaged in sexual activity.” Grandmother asked Marks to speak with Grandson about it and Marks told her that he had done so. In approximately July of that same year, “it happened again,” and “[Grandson] knew he was in trouble” when Grandmother again caught him with a picture of naked women.¹

[262 P.3d 17]

In response to Grandmother's questions, Grandson indicated that the picture “was an old one that he had printed up at [Marks's house].” Grandmother then spoke with Grandson about “accessing the ... porno at [Marks's house],” and Grandson explained that “it just pops up on my screen.” According to Grandmother, Grandson disclosed that Marks had sexually abused him about two weeks later. ² Grandson had just returned from a visit with Marks, and he “seemed kind of strange, just very quiet, withdrawn.” When Grandmother asked if something was wrong, Grandson first said “no,” and then blurted out, “Grandpa sucked my dick.” Upon further questioning, Grandson told Grandmother that the incident had occurred the previous summer, but he was afraid to tell her about it because Marks had threatened him.

¶ 5 Grandson also testified at the preliminary hearing; he was fourteen years old at the time. Grandson's best recollection was that he was thirteen years old when Marks sexually assaulted him. He remembered that it was summertime because it was hot, people had their pools out, and he was not in school. He also believed that it happened in the summer of 2005, when he had just finished the seventh grade. Grandson testified that he first reported the incident to Grandmother around his birthday in March of the following year because he saw a television show about child abuse. Grandson claimed that prior to watching the show, he did not “know what happened, what [his] Grandpa did to [him].” Grandson thought Marks was “just showing [him] what sex was.” After he saw the television show, Grandson understood that what Marks had done to him was “a bad thing, so [he] told [his] Grandmother.” Although Grandson told Grandmother about the abuse after the incident with Sister and after the two times he was caught with the pornographic picture, Grandson testified on cross-examination during the preliminary hearing that prior to seeing the television show he did not know what sex was, had no understanding of sexuality at all, and had never read anything about sexuality. In response to defense counsel's further questions, Grandson indicated that he had not “done anything sexually inappropriate with anybody” other than Marks; had “never seen anything on the internet that involved sex” before watching the television show; and had “never seen any pornographic images,” which Grandson understood meant pictures of naked women in sexual positions.

¶ 6 Before trial, Marks filed a motion pursuant to rule 412 of the Utah Rules of Evidence to admit the evidence related to Grandson's possession of pornography and the incident with Sister for the purpose of demonstrating that Grandson had the sexual knowledge and the motive to fabricate an allegation of abuse against Marks.³ The defense also claimed that the evidence was admissible for impeachment purposes because Grandson had untruthfully denied looking at internet pornography and touching anyone inappropriately.

¶ 7 At the rule 412 hearing, defense counsel argued that when he tried to explore Grandson's sexual knowledge at the preliminary hearing, Grandson did not tell the truth. Thus, the defense argued that like a prior false allegation of rape, the evidence should be admitted to prove Grandson's lack of credibility. Because Grandson was the only witness to the alleged abuse and there was no corroborating physical evidence, the defense claimed the opportunity to cross-examine him about his prior untruthfulness was critical. In addition, the defense alleged that although Grandson was not a child of tender years, due to his mental disability the jury would draw the inference that Grandson would not have the sexual knowledge to describe

[262 P.3d 18]

the allegations against Marks but for the fact that the abuse really took place. Consequently, the defense claimed that the evidence should be admitted to rebut the inference that “mentally disabled children, and even adults, are naive when it comes to sexual matters.” In response to questions from the trial court, defense counsel confirmed that he intended to offer expert testimony “that mentally handicapped people ... wouldn't necessarily be naive” but argued that Marks was still entitled to present evidence that Grandson specifically was not uninformed about sexual matters. In response, the State argued that the evidence should be excluded under rule 412 because it did not involve sex acts similar to those Grandson alleged occurred with Marks and therefore could not explain his ability to fabricate those allegations. The defense argued on rebuttal that the fact that Grandson had the picture printed from the internet showed that he had access to internet pornography generally, not just to that picture.

¶ 8 The trial court denied the motion, concluding that Grandson's possession of pornography and the incident with Sister were “not probative of [Grandson]'s knowledge with respect to the act in this case, fellatio between two males”; that the details of why Grandson was in trouble did not explain why he would falsely accuse Marks; and that the defense could “adequately explore [Grandson's] truthfulness and propensity for lying versus telling the truth by questioning [Grandmother] without addressing [Grandson's] sexual incidents” and by “attack[ing] inconsistencies in [Grandson's] story, the timing of the allegations, and the adequacy of the detective's investigation.” Therefore, the trial court concluded that exclusion of the evidence did not violate Marks's Sixth Amendment right to confront his accuser and should be excluded under rule 412. In addition, the trial court determined that the evidence was inadmissible under rule 403 of the Utah Rules of Evidence because its probative value was outweighed by the danger of unfair prejudice.

¶ 9 Marks was tried before a jury for three days in November 2008. Grandson's trial testimony regarding when and how the abuse occurred was inconsistent in a number of respects with his previous testimony during the CJC interview, as well as his testimony at the preliminary hearing. For example, at trial, Grandson stated that on the morning of the abuse, he exited the shower and Marks, who was still “in bed under his covers,” told Grandson to come into the room. However, at the CJC interview, Grandson testified, “I got out of the shower and I saw him naked,” and at the preliminary hearing, Grandson said that he saw Marks naked under the covers. Grandson's trial testimony regarding what happened during the abuse was also different from his earlier statements. At trial, Grandson testified that when Marks ordered Grandson to get into bed with him, Marks was masturbating and became erect. Yet, at the CJC interview, Grandson stated that Marks could not achieve an erection. And at the preliminary hearing, Grandson did not indicate that Marks was masturbating and stated that Marks did not become erect. Further, Grandson testified for the first time at trial that during the abuse Grandson became erect and ejaculated “goo stuff.” At the CJC interview, however, Grandson said that nothing happened to his body after Marks performed fellatio on him, and at the preliminary hearing, Grandson...