State v. Rudolph
| Decision Date | 31 July 1998 |
| Docket Number | No. 960482,960482 |
| Citation | 970 P.2d 1221 |
| Parties | 349 Utah Adv. Rep. 11 STATE of Utah, Plaintiff and Appellee, v. Henry Lee RUDOLPH, Defendant and Appellant. |
| Court | Utah Supreme Court |
Jan Graham, Attorney General, Laura B. Dupaix, Assistant Attorney General, Salt Lake City, for plaintiff.
Karen J. Stam, Joan C. Watt, Kristine M. Rogers, Salt Lake City, for defendant.
Defendant Henry Lee Rudolph appeals from his convictions for aggravated burglary under Utah Code Ann. § 76-6-203, a first degree felony, and violation of a protective order under § 76-5-108, a class A misdemeanor.
The State charged Rudolph with aggravated burglary, aggravated sexual assault, and violation of a protective order. He appeared pro se with the assistance of standby counsel. Following a jury trial in late 1994, he was convicted of and sentenced on the charges of aggravated burglary and violation of a protective order, but was acquitted on the charge of aggravated sexual assault.
Rudolph appealed his convictions to this court. Because significant portions of the trial transcript were incomplete due to technical problems with the court reporter's machinery, we summarily reversed his convictions and remanded his case to the trial court In February 1996, Rudolph's new trial began, and he again appeared pro se. However, during the redirect examination of the State's first witness, the court granted Rudolph's motion for a mistrial. He also moved to recuse Judge Brian from further proceedings in the case. Although Judge Brian apparently granted this motion, he continued to preside over Rudolph's third trial.
for a new trial on the aggravated burglary and violation of a protective order charges. On remand, the trial judge, Judge Timothy R. Hanson, recused himself, and the case was reassigned to Judge Pat B. Brian.
At the third jury trial, Rudolph was represented by court-appointed counsel. He was again convicted of aggravated burglary and violation of a protective order and was sentenced to concurrent prison terms as prescribed by statute. Rudolph now appeals from these convictions.
Rudolph's convictions arose from the alleged burglary of the victim's home on August 1, 1994. He first met the victim in January 1988 or 1989, and they eventually married in August 1993. Thereafter, their relationship deteriorated, and on June 6, 1994, she obtained an ex parte protective order against him and filed for divorce. Rudolph was served with the ex parte order the following day. She later obtained a permanent protective order at a hearing of which he had notice but did not attend. He was not served with that order.
On the morning of August 1, 1994, Rudolph parked his car around the corner from the victim's home and entered the home by breaking into a basement window. When she returned home later that day, she was greeted by Rudolph, who was standing in the hallway with a large knife in his pocket. He appeared angry and told her that "[she] should have known that he would have a reaction to what [she] had done." 1 He then noticed a "hickey" on her neck and demanded to know who she had been with. He became irate when she told him that she had been seeing a co-worker. He punched her several times and pushed her onto the sofa.
He then withdrew the knife from his pocket and began yelling obscenities at her. He threatened her, telling her that "[she] would never leave the house again" and that he was going to "cut [her] up into little pieces." He then forced her to disrobe at knife point and continued to berate her with threats and insults as she sat naked on the sofa. After a twenty-minute tirade, he ordered her into the bathroom. He struck her as she walked towards the bathroom, hitting her in the forehead and right ear.
Once in the bathroom, he told her to take a shower and "wash [her] filthy body." He watched her shower and then put down the knife, undressed himself, and entered the shower. He ordered her to wash his genitals and perform oral sex on him. She obeyed his orders because she was afraid for her life. He then told her to lie down in the bathtub, and he had sexual intercourse with her. Afterwards, he insisted that she go into the bedroom, where he once again forced intercourse.
Rudolph apparently calmed down after intercourse, but the victim remained upset and was crying. She was dizzy, nauseated, and her head hurt. She wanted him to leave and told him to do so several times, but he refused.
The victim then asked him to get some boxes from her car. While he was in the garage getting the boxes, she quickly dialed "911" and left the receiver off the hook. After learning that she had called "911," he went into another tirade, renewing his threats and stating that "[he was] going to show [her] what it feels like to be backed up against the wall, with nowhere to go, like a caged animal." He then began to strangle her with his hands, and she momentarily She was finally able to escape while searching for the hose. As she ran out of the garage, two police officers approached her. She ran to them, yelling,
blacked-out. After he finally released her, he forced her back into the bedroom at knife point. He told her that he was going to commit suicide in her car and ordered her to find him a hose that he could insert into the exhaust pipe.
Rudolph fled from the house by jumping out of a second-story window. Even though one of the officers sprayed him in the face and eyes with pepper mace Rudolph managed to get to his car and drive off. However, he was apprehended only a few blocks away from the home.
The police collected evidence at the home. They took photographs of the victim and crime scene, recovered a knife in the bedroom, and found a suicide note written by Rudolph. 2 They also questioned Rudolph, and he admitted that he had broken into the victim's home. In addition, he confessed that he had struck her during the incident, that he had a knife with him, and that he had oral sex with her in the shower. However, he maintained that he had not used the knife to threaten her and that sex had been consensual.
Rudolph contends on appeal that (1) the jury instructions regarding the burglary element of intent to commit a sexual assault were erroneous; (2) the trial court erred by including the "remaining unlawfully" language of the burglary statute in its instructions to the jury; (3) the State's evidence did not support his aggravated burglary conviction; (4) the trial judge failed to respond to a question submitted by the jury during deliberations; (5) the judge erred by presiding over Rudolph's third trial even though he had previously recused himself from the case; (6) the double jeopardy guarantee barred his convictions; and (7) the evidence did not support his conviction for violation of a protective order. Rudolph has also submitted his own pro se briefs, wherein he argues that the prosecutor engaged in prosecutorial misconduct by knowingly using false evidence and perjured testimony at trial. We address each of these assignments of error below.
The first issue that we must resolve is whether three of the trial court's jury instructions regarding the intent element of burglary were erroneous. Although the trial court did not number these instructions, the parties have done so for purposes of this appeal, and we will follow that numbering in this opinion. Rudolph specifically assigns error to instruction 5, instruction 1, and instruction 3. We consider each of these assignments of error in turn.
Rudolph's first assignment of error is that instruction 5 erroneously stated that to convict Rudolph of aggravated burglary, the jury must find that "[he] entered with the intent to commit a sexual assault on any person." (Emphasis added.) He asserts that this instruction was erroneous because sexual assault is not a statutorily defined crime in Utah.
The State, however, correctly points out that Rudolph did not object to this instruction in the court below and that rule 19(c) of the Utah Rules of Criminal Procedure precludes Rudolph from raising this issue for the first time on appeal. That rule provides:
(c) No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury is instructed, stating distinctly the matter to which he objects and the ground of his objection. Notwithstanding a party's Utah R.Crim. P. 19(c) (emphasis added). "Under the guidance of this rule, we have been very reluctant to review jury instructions and other matters not preserved for appeal by means of an objection at trial." State v. Anderson, 929 P.2d 1107, 1108-09 (Utah 1996). In light of the foregoing, we hold that Rudolph has not preserved his right to appeal instruction 5.
failure to object, error may be assigned to instructions to avoid a manifest injustice.
Rudolph argues that we may nevertheless review this instruction for manifest injustice. He relies heavily on our decision in State v. Haston, 846 P.2d 1276 (Utah 1993) (per curiam), where we reviewed Haston's attempted second degree murder conviction for manifest injustice because he might have been convicted of a crime not recognized in Utah. See id. at 1277. We had previously held in State v. Vigil, 842 P.2d 843, 845-46 (Utah 1992), that Utah law does not recognize the crime of attempted depraved indifference homicide. Therefore, because the jury instruction at issue in Haston permitted the jury to consider depraved indifference homicide, we reviewed Haston's conviction for manifest injustice. See Haston, 846 P.2d at 1277. Rudolph contends that we must also review his claim for manifest injustice because sexual assault is not a statutorily defined crime in Utah. However, he was not convicted of sexual assault; he was convicted of aggravated burglary, which...
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