State v. Verde

• Decision Date: 25 September 2012
• Docket Number: No. 20100286,20100286
• Citation: 2012 UT 60
• Parties: STATE OF UTAH Plaintiff and Respondent, v. JAMES ERIC VERDE Defendant and Petitioner.
• Court: Utah Supreme Court

2012 UT 60

STATE OF UTAH Plaintiff and Respondent,

v.JAMES ERIC VERDE Defendant and Petitioner.

No. 20100286

SUPREME COURT OF THE STATE OF UTAH

Filed September 25, 2012

This opinion is subject to revision before final

publication in the Pacific Reporter.

On Certiorari to the Utah Court of Appeals

Third District, West Jordan

The Honorable Terry L. Christiansen

No. 051401265

Attorneys:

Mark L. Shurtleff, Att'y Gen., Marian Decker, Asst. Att'y Gen.,

Salt Lake City, for respondent

Linda M. Jones, Salt Lake City, for petitioner

JUSTICE LEE authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING, JUSTICE DURHAM, and JUSTICE PARRISH joined.

JUSTICE LEE, opinion of the Court:

¶1 James Eric Verde was convicted of sexual abuse of a child. At trial, the court admitted evidence of two prior uncharged sexual assaults by Verde. On appeal to the court of appeals, Verde challenged the admissibility of that evidence under Utah Rule of Evidence 404(b), asserting either that it was not offered for a non-character purpose or that its probative value was substantially outweighed by a risk of unfair prejudice. The court of appeals deemed the evidence admissible for two non-character purposes and affirmed. We reverse Verde's conviction and remand for a new trial, but leave the door open for the State to offer its evi-dence on grounds different from those adopted by the court of appeals or the trial court.

I

¶2 In 2005, Verde was charged with sexually abusing N.H., a twelve-year-old boy. The charge was based on an incident that occurred in the summer of 2003, when Verde allegedly put his hand down N.H.'s pants and fondled his genitalia. Verde pled not guilty.

¶3 Prior to trial, the State filed a motion in limine, asking the trial court to allow testimony from three men who claimed that Verde had sexually assaulted them when they were eighteen years old. The State contended that the testimony was admissible under rule 404(b) for the non-character purposes of demonstrating Verde's "knowledge, intent, plan, modus operandi and/or absence of mistake or accident." Verde challenged the admissibility of the evidence on the ground that it was not relevant to any controverted issues in a manner untethered to his character. The trial court granted the State's motion as to two of the witnesses, concluding that the evidence was admissible to prove Verde's specific intent. The court noted that the evidence could also be admitted to prove "a pattern of behavior," and that Verde "prepared and planned to meet minor males with a motive of enticing them into sexual relationships."

¶4 At trial, N.H. testified that he met Verde in the fall of 2001 when Verde moved into N.H.'s neighborhood. According to N.H., Verde took him to a carnival on the day they met, and the two spent extensive time together thereafter—with N.H. playing video games or basketball at Verde's home, riding Verde's ATVs, or working in Verde's yard for pay.

¶5 N.H. further testified that Verde sexually abused him in the summer of 2003 when he was at Verde's home. According to N.H.'s testimony, Verde sat by N.H. on the couch and put "his hand down [N.H.'s] pants" and "touched [his] penis and testicles." N.H. said that he told Verde to stop, and that Verde said something like "don't be cool" and then moved to a chair. In December 2004, N.H. reported these events to his mother.

¶6 The State also presented evidence at trial that Verde had engaged in sexual misconduct with two eighteen-year-old malesin 2002 and 2004.¹ The first witness, J.T.S., testified that Verde first approached him when he was fifteen years old and working as a grocery store bagger. J.T.S. claimed that Verde initiated a conversation with him, gave him a pair of sunglasses, and invited him to play basketball. J.T.S. did not see Verde again until he was eighteen years old. At that time, Verde expressed interest in a car J.T.S. was selling and insisted that J.T.S. come to his house so he could test drive the car.

¶7 J.T.S. testified that he went to Verde's home that evening. When J.T.S. realized that Verde was not interested in purchasing the car, J.T.S. attempted to leave. Verde then pulled on J.T.S.'s leg and refused to let him go. According to J.T.S., Verde then rubbed J.T.S.'s leg, unbuttoned his jeans, and groped his genitals. J.T.S. testified that he tried to stop Verde "many times," but that he responded with force, frightening J.T.S. He immediately reported the incident to the police and his parents, but no charges were filed.

¶8 M.A. testified to a similar incident. According to M.A., he met Verde at the gym in 2002 when he was eighteen years old. Verde allegedly approached M.A. and invited him home, where Verde groped M.A.'s groin "close enough to his genitals to arouse him." M.H. terminated this encounter and later reported the incident to police, again without charges ever being brought.

¶9 After the State presented its case, Verde testified on his own behalf, denying that he ever sat next to N.H. on the couch or touched N.H. in a sexual manner. Verde presented witnesses who testified about N.H.'s lack of credibility, one saying that N.H. "pathologically lie[d]." Verde also testified that he never had any sexual contact with M.A. or J.T.S.

¶10 The jury found Verde guilty, and he appealed. In the court of appeals, Verde pressed his argument that the evidence of uncharged sexual misconduct should not have been admitted because it served no purpose other than to show that Verde's con-duct conformed to a propensity to commit sexual crimes. State v. Verde, 2010 UT App 30, ¶ 15, 227 P.3d 840.

¶11 The court of appeals affirmed, holding that the 404(b) evidence was admissible to establish Verde's specific intent, or alternatively, to rebut Verde's theory that N.H. fabricated his story. Id. ¶¶ 18, 19 n.6. Although Verde never actually disputed intent, the court of appeals deemed the evidence admissible to establish Verde's specific intent, a required element of sexual abuse of a child, regardless of the nature of the case or Verde's defenses. Id. ¶ 18. The court based this holding on the so-called "not guilty rule," under which intent is per se controverted once a defendant pleads not guilty to a specific-intent crime. Id. In light of this holding, the court of appeals did not address the State's alternative argument that the trial court properly admitted the bad acts evidence for the additional purpose of proving Verde's pattern of conduct, preparation, or plan of enticing and exploiting teenage males. Yet the court did recognize "at least one additional ground for admitting the prior bad acts evidence." Id. ¶ 19 n.6. Because Verde claimed that N.H. invented the alleged misconduct "after not being paid for catching a stray cat," the court held that prior bad acts evidence was admissible to rebut Verde's defense of fabrication. Id.

¶12 Judge McHugh concurred, opining that the "not guilty rule" should not be used as a substitute for a meaningful inquiry into the actual purpose and relevance of evidence offered under rule 404(b). Id. ¶ 38 (McHugh, J., concurring). In Judge McHugh's view, the mere fact that "a defendant pleads not guilty should not excuse the State from identifying the precise link between the bad acts evidence and a contested issue in the trial." Id. ¶ 44. Judge McHugh also acknowledged that under current court of appeals precedent, see State v. Bradley, 2002 UT App 348, 57 P.3d 1139, the 404(b) evidence could be admitted to rebut Verde's fabrication theory; but for that precedent, however, she would have reversed and remanded for a new trial. Verde, 2010 UT App 30, ¶ 43 (McHugh, J., concurring).

¶13 Our review of the court of appeals decision on certiorari is de novo. State v. Levin, 2006 UT 50, ¶ 15, 144 P.3d 1096. That said, "[t]he correctness of the court of appeals' decision turns, in part, on whether it accurately reviewed the trial court's decision under the appropriate standard of review." Id. A trial court's admissionof 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. Decorso, 1999 UT 57, ¶ 18, 993 P.2d 837. Applying these standards, we reverse the court of appeals' holding that the 404(b) evidence was admissible to prove Verde's intent and remand for a new trial, leaving open the possibility that the trial court could determine that the State's evidence is admissible under the "doctrine of chances" as proof that N.H. did not fabricate Verde's act of abuse.

II

¶14 Our analysis must begin with the text of the governing rules of evidence. The principal rule in play here is 404(b), which states:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in 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.

UTAH R. EVID. 404(b) (2005).²

¶15 Under this rule, the admissibility of prior misconduct evidence depends on its avowed purpose. When such evidence is offered to suggest action in conformity with a person's alleged bad character, it is inadmissible under the rule. When past misconduct evidence is offered for any other purpose, on the other hand, it is admissible. The rule lists examples of proper purposes—to establish motive, opportunity, intent, etc.—but the list is illustrative and not exclusive. So long as the evidence is not aimed at suggest-ing action in conformity with bad character, it is admissible under rule 404(b).

¶16 That much is clear. The difficulty in applying this simple rule, however, springs from the fact that evidence of prior bad acts often will yield dual inferences—and thus betray both a permissible purpose and an improper one. Thus, evidence of a person's past misconduct may plausibly be aimed at establishing motive or...