State v. Murphy

Decision Date25 April 2019
Docket NumberNo. 20170193-CA,20170193-CA
Citation441 P.3d 787
Parties STATE of Utah, Appellee, v. Anthony Charles MURPHY, Appellant.
CourtUtah Court of Appeals

ORME, Judge:

¶1 Defendant Anthony Charles Murphy appeals his convictions for aggravated sexual assault, aggravated kidnapping, forcible sexual abuse, and aggravated assault of his then-wife (Victim). He argues that the trial court abused its discretion by admitting evidence of other allegations of sexual assault made against him pursuant to rule 404(b) of the Utah Rules of Evidence and by denying his motions for a mistrial. He also alleges that he received ineffective assistance when his trial counsel did not call expert witnesses to corroborate his version of events.1 We affirm.


¶2 Defendant and Victim married in August 2008. Soon after, Defendant began to verbally, physically, and sexually abuse Victim, culminating in the events of May 31, 2009, for which he was charged with, and convicted of, various crimes.

¶3 The day in question began "as a fun, relaxing, playful day." The couple spent most of the day in their backyard cultivating their garden and target shooting with BB guns. Defendant began drinking around 10 a.m., and Victim had her first drink around noon. All was well until approximately 7:30 p.m. By then, both Victim and Defendant had consumed copious amounts of alcohol. Defendant received a text message from a woman whom Victim had previously caught flirting with him. Defendant’s receipt of the text message infuriated Victim, and she began yelling at him. He responded by laughing at her. Exasperated, Victim left Defendant in the backyard and went to bed.

¶4 Defendant later entered the bedroom and asked Victim if they could "work this out." Victim returned with Defendant to the backyard, and the two started dancing. After dancing for a short while, Defendant began spinning Victim quickly around until she fell to the ground. Victim asked him to stop because he was hurting her. Defendant ignored her pleas, pulled her up from the ground, and tore off her shirt, bra, shorts, and underpants. Victim screamed for help, and Defendant told her to "shut up" and that "[n]obody was coming to save [her]."

¶5 Naked, Victim fled into the house. She ran upstairs to the second floor seeking to dress, retrieve her car keys, and leave the house. Defendant caught up with her when she reached the second floor and pushed her down the staircase. He then dragged her into the family room, repeatedly telling her, "you’ll remember me." In the family room, Defendant straddled Victim on the floor with both knees on her chest, constraining her breathing. In this position, he hit her multiple times in the face with his erect penis and repeated, "[S]uck it. Suck it, bitch." Victim initially resisted but eventually gave in. "Off and on" for the next twenty minutes, Defendant forced Victim to perform oral sex on him.

¶6 Victim attempted to crawl away, but when she reached the hallway, Defendant lifted her up by the throat, pressed her against the wall, and strangled her. He told her, "I'm going to kill you, bitch," and Victim passed out shortly thereafter. When she regained consciousness, she found herself soaked in her own urine. Defendant then dragged her into the upstairs bathroom, threw her into the bathtub, turned on the cold water, and ordered her to "get cleaned up."

¶7 Victim’s next memory was that of Defendant pushing her down the stairs for a second time after she attempted to escape through the back door. He then dragged her into the back bedroom, used his knees to pin her down by her shoulders, and again forced his penis into her mouth. Victim choked on his penis and lost consciousness for a second time.

¶8 Sometime after midnight, Victim was finally able to escape when Defendant passed out due to his excessive alcohol consumption. Victim put on a robe, grabbed her car keys, and drove to her friends’ house. They gave her a mild sedative, and Victim spent the night at their house. She woke the next day feeling like a "punching bag," "[e]verything hurt." Bruises had started forming on her face and on her chest, where Defendant had knelt on her while pinning her down. Her throat was extremely sore. She described that "it felt like the worst case of strep throat

[she] had ever had."

¶9 Fearing the loss of her job, Victim insisted on going to work that day despite her injuries. One of her friends accompanied her back to her house so that she could get ready. At the house, they found Defendant passed out on a couch. Victim quickly showered, dressed, and applied heavy makeup to cover the bruises on her face

. Despite these efforts, her coworkers immediately noticed that her face was red, swollen, and covered in bruises. One coworker described Victim’s face as "grotesquely swollen." Victim, who usually had a gregarious personality, was also "unnaturally subdued," "not talkative," and attempted to hide her face from her coworkers. After much coaxing, Victim admitted to a coworker that she had been physically assaulted. Against Victim’s wishes, her coworkers then contacted the authorities.

¶10 The officer who responded to the call testified that Victim’s face "was very battered" and that she was "probably one of the worst victims [he] had seen." Her eye sockets and cheeks were swollen, her lip was cut, and there was redness around her neck, which appeared to be consistent with strangulation. The officer interviewed Victim and photographed her injuries. The next day, Victim visited a doctor. The doctor noted that her rib cage was "very tender" and that pain prevented her from being able to fully open her jaw. He also noted bruising on her upper chest, right leg, and lip.

¶11 A few days later, two police officers accompanied Victim on a walkthrough of her house to collect evidence. The police observed a handprint on the wall against which Defendant had strangled Victim. Directly underneath the handprint, where Victim had urinated, the officers noted that the carpet was discolored from an attempted cleaning. And in the laundry room, they found bedding with blood stains and torn clothing that matched Victim’s description of what she had worn on the day of the assault.

¶12 The State charged Defendant with aggravated sexual assault and aggravated kidnapping, first-degree felonies; forcible sexual abuse, a second-degree felony; and aggravated assault, a third-degree felony. He was tried in 2016.3 A jury found him guilty of all charges. He was sentenced to two consecutive fifteen-years-to-life sentences for his aggravated sexual assault and aggravated kidnapping convictions, and concurrent sentences of one-to-fifteen years and zero-to-five years for his forcible sexual abuse and aggravated assault convictions, respectively.


¶13 Defendant raises six claims on appeal, three of which we do not address on the merits. First, he argues that the trial court erred in its application of rules 404(b) and 403 of the Utah Rules of Evidence when it admitted evidence of additional allegations of sexual assault made against him by other women. Due to a trial court’s advantaged position over that of appellate courts "to assess the avowed basis for evidence of prior misconduct—and to judge its likely effect in prejudicing or confusing the jury"we review a trial court’s decision to admit evidence under rules 404(b) and 403 for abuse of discretion. See State v. Thornton , 2017 UT 9, ¶ 56, 391 P.3d 1016.

¶14 Second, Defendant contends that the State committed prosecutorial misconduct when it made inappropriate comments during the rebuttal portion of its closing arguments. Generally, "insofar as this issue was preserved, we will review the trial court’s rulings on prosecutorial misconduct claims for an abuse of discretion." State v. Fairbourn , 2017 UT App 158, ¶ 13, 405 P.3d 789 (quotation simplified). Otherwise, we typically review unpreserved issues only when a valid exception to the preservation rule applies. See State v. Johnson , 2017 UT 76, ¶ 15, 416 P.3d 443. Here, Defendant’s counsel did not object to the allegedly inappropriate comments made by the State on the ground that they amounted to prosecutorial misconduct.4

And because Defendant has not argued that an exception to the preservation rule applies, we have no occasion to address the merits of this issue on appeal. See Oseguera v. State , 2014 UT 31, ¶ 15, 332 P.3d 963 ("When a party seeks review of an unpreserved objection, we require that the party articulate an appropriate justification for appellate review in the party’s opening brief.") (quotation simplified).

¶15 Third, Defendant asserts that the trial court erred in denying his motions for a mistrial. We review a trial court’s ruling on a motion for a mistrial for abuse of discretion and reverse only if the court’s decision "is plainly wrong in that the incident so likely influenced the jury that the defendant cannot be said to have had a fair trial." State v. Allen , 2005 UT 11, ¶ 39, 108 P.3d 730 (quotation simplified).

¶16 Fourth, Defendant claims that his aggravated kidnapping and aggravated sexual assault convictions should merge under the common-law merger test of State v. Finlayson , 2000 UT 10, 994 P.2d 1243, overruled by State v. Wilder , 2018 UT 17, 420 P.3d 1064.5 Defendant recognizes that this claim was not fully preserved below6 and urges us to "review this issue under [the] plain error and ineffective assistance of counsel" exceptions to the preservation rule. But he focuses his argument on the merits of the claim and does not address this unpreserved issue through the lens of either of these exceptions. Accordingly, we decline to reach the merits of this claim. See True v. Utah Dep't of Transp. , 2018 UT App 86, ¶ 30, 427 P.3d 338 ("If a party fails to argue and establish the applicability of a preservation exception, the appellate court will not reach the unpreserved issue."). See also State v. Ring , 2018 UT 19, ¶ 35, 424 P.3d 845 (stating...

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