State v. Mildenhall, 860366
| Decision Date | 19 November 1987 |
| Docket Number | No. 860366,860366 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Bryan MILDENHALL, Defendant and Appellant. |
| Court | Utah Supreme Court |
Robert N. Macri, Salt Lake City, for defendant and appellant.
David L. Wilkinson, David B. Thompson, Salt Lake City, for plaintiff and respondent.
In this consolidated appeal, we treat two separate criminal cases against defendant. In the first case, defendant claims the trial court abused its discretion in refusing to allow him to withdraw his plea of guilty to forcible sex abuse. In the second case, a jury found defendant guilty of sodomy on a child. Defendant claims four errors in the second trial. He alleges that the trial court (1) improperly admitted evidence of his guilty plea in the first case, thus depriving him of a fair trial, (2) erred in denying his motion for a new trial based on the State's alleged failure to comply fully with discovery requests and the State's misrepresentation of facts, (3) abused its discretion when it refused to admit evidence of the victim's mother's mental health and financial circumstances, and (4) allowed him to be convicted on insufficient evidence. We treat the cases separately and affirm both convictions.
In the first case, S., a fourteen-year-old boy who lived at defendant's home as a foster child, accused defendant of sexual misconduct. The State charged defendant with four counts of forcible sex abuse and one count of sodomy. Defendant confessed to sexual contact with S. and, on the advice of his attorney, pleaded guilty to one count of forcible sexual abuse on May 31, 1985, in the belief that he would receive leniency because of his clean record.
Around the same time, S. escaped from juvenile detention. While defendant was on release pending sentencing, a jury convicted him of sodomy on the child in the second case. After the second trial, defendant presented the judge in the first case with a letter purportedly from S. According to defendant, S., who was still a fugitive from the authorities, had a notarized, certified letter mailed to defendant's attorney. In the letter S. claimed that he not only consented to the sexual contact with defendant but also initiated it and "coerced" defendant into it. The trial judge, however, expressed concern over the authenticity of the letter.
Utah Code Ann. § 77-13-6 (1982) provides: "A plea of guilty ... may be withdrawn only upon good cause shown and with leave of court." We will not interfere with a trial judge's determination that a defendant has failed to show good cause unless it clearly appears that the trial judge abused his discretion. State v. Forsyth, 560 P.2d 337, 339 (Utah 1977). We find no abuse of discretion here. Defendant has failed to show good cause why the court should have exercised its discretion to allow withdrawal of the plea. Defendant entered his guilty plea knowingly, voluntarily, and intelligently and with the advice of counsel. He did not assert a defense of consent until the letter from S. arrived, which was suspiciously soon after the guilty verdict in the second case. The timing of the letter suggests the possibility that defendant coerced S. to write it or forged it himself because defendant's conviction in the second case increased his chances of receiving a prison sentence in the first case. Although a notary public notarized the signature on the letter, the trial judge was not obligated to believe either that the writer was in fact S. or that the letter's contents were true. It is highly improbable that a young fugitive from custody would seek out a notary and send a certified letter to defendant's attorney. Further, the body of the letter is in different ink and handwriting than the signature, and the only proffered handwriting sample of S. was one in defendant's possession. The content of the letter is also problematic; S. refers to fourteen as the legal age for consent, a fact more likely to be known by defendant than by S.
Because of the implausible timing and suspicious content of the letter, we find no abuse of discretion by the trial judge. Furthermore, allowing withdrawal of the plea would greatly prejudice the State. With only a letter purportedly written by the victim, but without the victim himself, the State lacks any evidence to retry defendant. 1 The trial court was within its discretion in deciding that defendant failed to show good cause for withdrawal of the plea.
The acts for which defendant was charged in the second case occurred while defendant was on post-trial release after the first case. A., a twelve-year-old boy who had been close friends with defendant for two years, testified that defendant forcibly sexually abused him on June 29, sodomized him on July 6, and committed object rape on him on July 17. Defendant was not charged with the latter act, and the jury found him not guilty of the June 29 act.
At trial for the sodomy charge, defendant attempted to show that A.'s mother induced A. to fabricate charges against defendant, using her alleged knowledge of the charges in the first case to create the charges brought by A. In order to support this theory, defendant testified about the first case and his guilty plea.
We reject defendant's claim of prejudice regarding the introduction of evidence of the guilty plea for several reasons. First, by not raising it at trial, defendant failed to properly preserve the issue for appeal. State v. Gray, 717 P.2d 1313, 1316 (Utah 1986); Utah R. Evid. 103(a)(1). Moreover, because defendant insisted on telling the jury about the guilty plea as part of his defense, notwithstanding the objection of the prosecutor and the reluctance of the trial court, he may not now claim prejudice because the jury chose not to believe his version of the facts. State v. Barney, 681 P.2d 1230, 1231 (Utah 1984).
Next, defendant contends that the trial court erred in not granting a new trial based on the State's failure to disclose rebuttal testimony and its use of allegedly perjured testimony. The testimony at issue was offered as rebuttal to defendant's alibi and alibi witnesses for the night of July 6, when a city-wide power outage occurred. The alibi witnesses established the time defendant allegedly returned from taking A. home by estimating when power was restored to their residence. The prosecutor introduced rebuttal witnesses from the police and the power company to indicate that the time power was restored in the area differed substantially from the alibi witnesses' estimates. Defendant asserts that the rebuttal evidence was improper because the prosecutor did not inform defendant of the expected content prior to trial.
On appeal, defendant has submitted new evidence that contrary to the implication of their testimony, neither the police nor the...
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