State v. Thornton

• Decision Date: 14 November 2014
• Docket Number: No. 20121086–CA.,20121086–CA.
• Court: Utah Court of Appeals
• Parties: STATE of Utah, Plaintiff and Appellee, v. Robert Damien THORNTON, Defendant and Appellant.

339 P.3d 112

2014 UT App 265

STATE of Utah, Plaintiff and Appellee

v.Robert Damien THORNTON, Defendant and Appellant.

No. 20121086–CA.

Court of Appeals of Utah.

Nov. 14, 2014.

Debra M. Nelson and Brenda M. Viera, for Appellant.

Sean D. Reyes and Karen A. Klucznik, Salt Lake City, for Appellee.

Judge JOHN A. PEARCE authored this Opinion, in which Judges GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.

Opinion

PEARCE, Judge:

¶ 1 Robert Damien Thornton appeals from his conviction of three counts of rape of a child, three counts of sodomy on a child, three counts of aggravated sexual abuse of a child, and one count of witness tampering, all of which resulted from his alleged sexual abuse of his roommate's twelve-year-old daughter (Child). Thornton argues that the district court erred by excluding evidence of Child's other sexual activity and by admitting evidence that Thornton had supplied Child's mother (Mother) with drugs and encouraged Mother to prostitute herself. We determine that the district court properly excluded testimony concerning Child's other sexual activity. However, we conclude that the district court abused its discretion by admitting the evidence of Thornton's prior bad acts without scrupulously examining and balancing the probative value and prejudicial effect of that evidence. We reverse Thornton's convictions and remand for further proceedings.

BACKGROUND

¶ 2 In 2010, Child lived with her stepfather and Mother in a two-bedroom residence.¹ Around October 2010, Child's stepfather was incarcerated. Thornton and his girlfriend then moved in with Child and Mother and began to live in Child's bedroom.

¶ 3 Mother had suffered from chronic pain throughout her life and would visit a methadone

clinic every morning for treatment. When Thornton moved in, he agreed to provide Mother crack cocaine as rent, which fed Mother's substance abuse problem. As Mother's dependency increased, Thornton told Mother that she needed to make money to pay for the drugs he was giving her. Thornton proposed that Mother prostitute herself. Mother did so. Mother would often bring clients home and conduct her business while Child was in the home. As Mother's drug addiction intensified, she increasingly neglected Child. Child went some days without eating. Although Child had been a straight-A student, she stopped attending school.

¶ 4 In early November 2010, Thornton's girlfriend was incarcerated, and his relationship with Child changed. Thornton began giving her “creepy looks” and patting her on the buttocks. One morning, while Mother was at the methadone clinic, Thornton either lured or dragged Child into her bedroom and had sexual intercourse with her while holding a pillow over her face. Child tried to fight Thornton off but could not do so. Child later testified that “[i]t hurt really bad” like she “was being ripped open.” She also testified that Thornton ejaculated, that it “stung really bad” when she urinated afterward, and that there was “white gooey stuff” in her urine. Child testified that she initially did not tell Mother about Thornton's abuse, in part because Child did not think Mother would care due to her drug abuse and because Thornton threatened to kill Child and Mother if Child revealed what he was doing to her.

¶ 5 Over the next two months, Thornton had sex with Child almost every morning when Mother went to the methadone

clinic. Thornton forced Child to perform various sex acts that would eventually form the basis of the charges against him. Child initially tried to stop Thornton, but she soon gave up. Thornton became more attentive to Child and would give her gifts, and Child began to think of their relationship as a “boyfriend/girlfriend type of relationship.” When Mother attempted on several occasions to kick Thornton out, Child convinced her to let him stay. Child also wrote several notes to Thornton expressing her love for him, at least one of which expressed her belief that he had impregnated her.

¶ 6 On the morning of December 31, 2010, Child told Mother that Child thought she was pregnant by Thornton. Mother confronted Thornton, who responded by insulting Mother and telling her that she would never be able to see the baby. Thornton then told Mother that he was going to sit down and wait for the police to come and arrest him. Mother went to a neighbor's house, and the police were called.

¶ 7 The police arrested both Thornton and Mother on outstanding warrants. Child was taken to a group home. Child denied Thornton's sexual abuse during her first interview with a detective, explaining that Thornton was old, ugly, and looked like “a hobo.” After that interview, Child's protective-services case worker informed Child that Thornton was in jail. At that point, she agreed to meet with the detective again. In her second interview, she told the detective that Thornton had been having sex with her.

¶ 8 On January 19, 2011, a family nurse practitioner examined Child and determined that her hymen was intact. However, the nurse also noted that, due to her physical maturity level, Child's hymen was elastic such that penetration would not necessarily have caused injury. The examination did not include the completion of a rape kit, because of the time that had elapsed since the last sexual interaction between Child and Thornton. The nurse practitioner conducted a pregnancy test, which indicated that Child was not pregnant.

¶ 9 Forensic testing of clothing recovered from Child's room revealed seminal fluid bearing Thornton's DNA. Investigators were unable to detect Child's DNA on the clothing. Thornton had previously admitted to police that he had engaged in sexual activity in Child's room while living there, but he denied any sex with Child.

¶ 10 The State brought multiple charges against Thornton arising from Child's allegations. The case has been tried three times. Before each of his three trials, Thornton moved to admit evidence that Child had been sexually active with another individual during the same time period that Thornton was accused of abusing her. This evidence included Child's statements from the preliminary hearing that she had been having sex with a male friend and that Mother knew about it and did not approve. Thornton sought admission of the evidence to show an alternate source for Child's belief that she was pregnant and to rebut the inference that a jury might draw that twelve-year-old Child was a sexual innocent lacking “advanced sexual knowledge.” Four different district court judges considered Thornton's motion over the course of the three trials. All four judges denied the motion pursuant to rule 412 of the Utah Rules of Evidence.

¶ 11 Before the first trial, the parties agreed to exclude the evidence that Thornton had supplied drugs to Mother and had encouraged her to prostitute herself to pay for them. Nevertheless, Mother testified that she “was not a prostitute until [Thornton] moved into my house ... and told me how to do it.” Thornton moved for a mistrial, arguing that Mother's testimony violated the parties' pretrial agreement. The district court agreed and declared a mistrial.

¶ 12 The parties entered into a similar stipulation before the second trial, again agreeing to exclude evidence of Thornton's other bad acts involving drugs and prostitution. After the second trial ended in a hung jury and the resulting declaration of another mistrial, the State decided that it needed to introduce the drug and prostitution evidence. The State sought to admit the evidence pursuant to rule 404(b) of the Utah Rules of Evidence, arguing that “the jury need[ed] to know what was actually going on in that home” to explain why Thornton was in the home, why he was alone with Child so often, and why Mother did not kick him out despite his abusive behavior. The State explained,

There is this huge gap, all of these questions as to why. Why was this happening? Why was [Mother] allowing this situation? It creates this gap that the jury starts—the jury is going to wonder, the jury is going to start to speculate and fill in what was going on.

The State further represented that, based on its interviews of the jurors from the second trial, “that's exactly what happened at the last trial and why it was a hung jury.”

¶ 13 The district court granted the State's motion after the State clarified that it was not going to use inflammatory language such as “pimp” or “crack-dealer.” The district court instructed the jury that the evidence was to be used only “for the limited purpose of determining Defendant's position of power or trust in the household or in understanding the victim's behavior” and that it was not to be used as a separate basis for punishing Thornton or to evaluate his character.

¶ 14 The third jury convicted Thornton on all counts. Thornton appeals his convictions.

ISSUES AND STANDARDS OF REVIEW

¶ 15 Thornton argues that the district court erred by excluding evidence of Child's sexual history, asserting that the evidence was admissible under rule 412 of the Utah Rules of Evidence and that its exclusion violated his constitutional rights. “We review the trial court's underlying evidentiary determinations for abuse of discretion, but the alleged [d]enial of the right to confront and cross-examine witnesses presents a question of law which is reviewed for correctness.” State v. Denos, 2013 UT App 192, ¶ 12, 319 P.3d 699 (citation and internal quotation marks omitted).

¶ 16 Thornton also challenges the district court's admission of evidence that he had supplied drugs to Mother and encouraged her involvement in prostitution. “A trial court's admission of prior bad acts evidence is reviewed for abuse of discretion, but the evidence must be scrupulously examined by trial judges in the proper exercise of that discretion.” State v. Verde, 2012 UT 60, ¶ 13, 296 P.3d 673 (citation and internal quotation marks omitted); see also Utah R. Evid. 404(b) (governing the admission of evidence of “crime[s], wrong[s], or other act[s]”).

ANALYS...