State v. Nelson-Waggoner

• Decision Date: 11 July 2000
• Docket Number: No. 980263.,980263.
• Citation: 2000 UT 59,6 P.3d 1120
• Parties: STATE of Utah, Plaintiff and Appellee, v. Stacey Lamar NELSON-WAGGONER, Defendant and Appellant.
• Court: Utah Supreme Court

6 P.3d 1120

2000 UT 59

STATE of Utah, Plaintiff and Appellee, v. Stacey Lamar NELSON-WAGGONER, Defendant and Appellant.

No. 980263.

Supreme Court of Utah.

July 11, 2000.

Jan Graham, Att'y Gen., Thomas B. Brunker, Asst. Att'y Gen., Salt Lake City, and Don Linton, Logan, for plaintiff.

Bel-Ami de Montreux, Kenneth R. Brown, Salt Lake City, and Shannon R. Demler, Logan, for defendant.

WILKINS, Justice:

¶ 1 Defendant Stacey Lamar Nelson-Waggoner appeals his conviction of rape, a first degree felony, on the ground that the trial court erred in admitting evidence of rapes he allegedly committed on other occasions with other victims. We affirm.

BACKGROUND

¶ 2 On March 24, 1997, defendant was charged with five counts of rape with five different victims, each occurring in Cache County between December 1996 and February 1997. On defendant's motion, the trial court ordered separate trials on each count.

¶ 3 Before the first trial, for the alleged rape of K.M., the State moved to admit evidence of defendant's prior crimes, wrongs, or acts under Utah Rule of Evidence 404(b).¹ Specifically, the State wanted defendant's other accusers to testify to the similar circumstances of their alleged rapes in order to establish defendant's modus operandi, motive, preparation, intent, knowledge, and lack of mistake or accident, as well as to show K.M.'s lack of consent. In each of the five rapes charged, defendant allegedly (1) invited the victim to his dorm room at Utah State University (USU) on a pretense; (2) wore loose-fitting clothing that could easily be removed quickly; (3) locked the door to his dorm room before the alleged rape; (4) asked the victim to kiss his body before raping her; (5) committed the rape in that room; (6) penetrated the victim after forcing her legs over his shoulders, bending her body in half so her knees were near her head in a confining position that hurt and made it difficult for her to breathe or cry out for help; (7) told the victim to "enjoy the moment" or to stop crying and protesting because she was "ruining a beautiful thing"; and (8) told the victim that nothing had happened or would happen in the future and that everything was all right. In three of the five alleged rapes, (9) the victims were offered money. In four of the alleged rapes, (10) defendant increased the volume on his television or stereo system before the encounter. All five of the alleged rapes occurred within a ten-week period.

¶ 4 The State argued that this evidence was not barred under rule 404(b) as construed in State v. Doporto, 935 P.2d 484 (Utah 1997), superseded by Utah R. Evid. 404(b) (as amended February 11, 1998), the law in effect at the time of trial. The trial court agreed that the circumstances of defendant's other alleged rapes were similar enough to "constitute a signature," a proper, noncharacter purpose under rule 404(b). However, the court also decided that under Doporto's construction and application of rule 403 of the Utah Rules of Evidence to cases involving rule 404(b) evidence, the evidence was inadmissible in the State's case-in-chief because it was more prejudicial than probative. The court further stated that other proof of the crime was available, such as the victim's testimony. The jury did not hear the evidence of other "crimes, wrongs or acts" and acquitted defendant on the first charge of rape.

¶ 5 The second trial resulted in defendant's conviction for the rape of E.G. and leads to this appeal. Prior to the second trial, rule 404(b) was amended to overrule the additional requirements imposed by Doporto for admitting evidence under rule 404(b)² and to clarify that evidence of other crimes, wrongs, or acts must also meet the admissibility requirements of rules 402 and 403 of the Utah Rules of Evidence.³ See Utah R. Evid. 404(b) (as amended February 11, 1998); Utah R. Evid. 404 advisory committee's note. Again the State moved to admit evidence of the other alleged rapes committed by defendant to show defendant's lack of credibility, modus operandi, motive, plan, intent, and lack of mistake and to establish E.G.'s lack of consent, a pivotal element of the crime charged. This time the trial court applied the amended version of rule 404(b) rather than the Doporto analysis, which it had done in the first trial. In so doing, the court held that it would allow evidence in the second trial of the alleged rapes of K.M. and K.T. to show defendant's modus operandi and ultimately to show that the sexual encounter was not consensual, so long as each victim's testimony met six of the ten factual similarities described above in paragraph three.

¶ 6 The trial of the second rape count involved two sexual encounters between defendant and E.G., another USU student. In their opening statements, both the State and the defense said that K.M., the first rape trial victim, and K.T., a victim in another rape count, would discuss the circumstances surrounding their alleged rapes. The State emphasized that this "bad acts" evidence would be presented "to show a method, a scheme, a plan that the defendant used to commit this crime," not to show that defendant had a propensity to commit rape. Defendant's attorney emphasized in his opening statement that defendant had been acquitted of the incident to which K.M. would testify, that the incident to which K.T. would testify had not yet been tried, and that the only issue in the instant trial was whether E.G., not K.M. or K.T., was raped.

¶ 7 At trial, E.G. testified that at the time of the alleged rape she was a nineteen-year-old university student. On the day she met defendant in December 1996, he invited her to his dorm room to see pictures of his children. After showing her the pictures, defendant went to his door, turned off the light, and then kissed her. She stated: "[T]he next thing I know I was on his bed and he was trying to take off my shirt. I froze up. My hands froze, kind of like a tingling sensation in my whole body. I had been laid down on the bed . . . ." E.G. testified that after he removed her pants, defendant put her legs over his shoulders and then forced his body on top of her with her legs above her head, her knees by her forehead. E.G. said that she could not feel her body: it tingled, as if it had fallen asleep, and her hands were frozen closed. She was unsure whether defendant actually penetrated her in this encounter. E.G. testified that she was very confused and was unsure about what had happened or if she was at fault. After returning home, E.G. bathed for several hours.

¶ 8 E.G. further testified that late on December 18 or early on December 19, hours before she was to fly home out of state, defendant called her and requested that she come to his dorm room to receive a Christmas present. When she arrived, defendant shut and locked the door behind her and gave her a Christmas tree ornament, a box of chocolates, and an envelope containing a condom that she was told not to open until she was on the plane home. After turning on his radio, defendant turned off the lights and asked her to sit next to him. She sat elsewhere, and the two had a brief conversation. She testified that defendant sat down next to her, began to kiss her, and tried to take off her shirt. She told defendant to stop, but he said, "You can't leave me like this." He stood up, pushed his loose fitting athletic shorts to his knees, grabbed her head, and told her to kiss his body. E.G. testified that she did not understand what that meant but that defendant explained it meant she should give him oral sex. E.G. tried to pull away several times and told defendant, "[N]o, I [don't] want to." Defendant then forced E.G. to the bed and pulled her shorts down over her knees. In her words, he then "threw my legs over my head, and he raped me. I told him no, and he told me to stop crying. I said no." E.G. testified that, in this folded position, it was hard to breathe or speak and that she repeatedly told defendant to stop. He responded that she should be quiet, that she was ruining the moment, and that this was a beautiful thing.

¶ 9 Before the other two alleged victims, K.M. and K.T., testified, the court gave the following instruction to the jury on the appropriate use of the bad acts evidence:

You are going to hear evidence of other sexual assaults allegedly committed by the defendant. You may use the evidence only to help you decide whether Stacey Nelson-Waggoner had nonconsensual sexual intercourse with [E.G.] and for no other purpose. The law does not allow you to convict the defendant or to punish him simply because you believe he may have done other things, even bad things, not specifically charged as crimes in this case. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action and conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

You are instructed that Mr. Nelson-Waggoner was previously acquitted by a jury of the offense against [K.M.]. You are further instructed that Mr. Nelson-Waggoner has not been tried for the offense alleged by [K.T.] and is presumed innocent until proven guilty.

¶ 10 K.M. then testified that she met defendant in early December 1996 while she was a student at USU. At the time, she was a nineteen-year-old music student at the university. The second time they met, defendant invited her to his room to discuss, she thought, the purchase of her stereo. Once there, defendant asked her to give him a back rub. As she did, defendant tried to kiss her, but she rejected him. He took off his loose athletic shorts and asked her to kiss his body. When she refused, he forced her head to his penis so she would give him oral sex. When she resisted, defendant laid her on the bed, removed her pants, forced her legs over his head, pushed her legs up until she was...