State v. Verde

• Decision Date: 11 February 2010
• Docket Number: No. 20080842-CA.,20080842-CA.
• Citation: 2010 UT App 30,227 P.3d 840
• Parties: STATE of Utah, Plaintiff and Appellee, v. James Eric VERDE, Defendant and Appellant.
• Court: Utah Court of Appeals

227 P.3d 840

2010 UT App 30

STATE of Utah, Plaintiff and Appellee, v. James Eric VERDE, Defendant and Appellant.

No. 20080842-CA.

Court of Appeals of Utah.

February 11, 2010.

Linda M. Jones, Salt Lake City, for Appellant.

Mark L. Shurtleff, Atty. Gen., and Marian Decker, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before Judges McHUGH, BENCH, and GREENWOOD.¹

OPINION

BENCH, Senior Judge:

¶ 1 Defendant James Eric Verde appeals from a jury conviction for sexual abuse of a child, a second degree felony, see Utah Code Ann. § 76-5-404.1(2)-(3) (2008), and challenges the trial court's decision to admit evidence of other crimes, wrongs, or bad acts.² Defendant argues that this bad acts evidence was not admissible pursuant to rule 404(b) of the Utah Rules of Evidence because it was not presented for a proper noncharacter purpose, it was not relevant, and it was more prejudicial than probative. Because specific intent was an element of the crime at issue in this case, we conclude that the trial court properly admitted the bad acts evidence for the proper noncharacter purpose of showing intent and that the evidence was both relevant and probative. We therefore affirm.

BACKGROUND

¶ 2 In 2005, Defendant was charged with sexually abusing N.H., a thirteen-year-old boy. The charges stemmed from an incident that occurred in the summer of 2003, when Defendant allegedly put his hand down N.H.'s pants and fondled N.H.'s genitalia. Defendant pleaded not guilty to the charge.

¶ 3 Prior to trial, the State filed a motion in limine, requesting that the trial court admit testimony from three other males—M.A., J.T.S., and B.P.—who claimed that Defendant had also sexually abused them. In its supporting memorandum, the State proffered the anticipated testimony of N.H. and the three other males. The State argued that the admission of this testimony was proper under rule 404(b) of the Utah Rules of Evidence for the noncharacter purpose of demonstrating Defendant's "knowledge, intent, plan, modus operandi, and/or absence of mistake or accident." At oral argument, the State emphasized the admissibility of the evidence for the noncharacter purpose of proving modus operandi or specific intent.

¶ 4 After taking the State's motion under advisement, the trial court granted the motion with respect to the testimony of M.A. and J.T.S. but denied the motion as to the testimony of B.P. In a detailed memorandum decision, the trial court determined that the testimony was admissible for the proper noncharacter purpose of showing Defendant's intent "because specific intent is an element of the offense at issue." The trial court also briefly noted that the testimony would be admissible, in the alternative, for showing "a pattern of behavior ... in which Defendant prepared and planned to meet minor males with a motive of enticing them into sexual relationships." The trial court did not admit B.P.'s testimony, however, because of concerns regarding the prejudicial effect of cumulative evidence and because it found the six-year time period between B.P.'s alleged abuse and N.H.'s alleged abuse made B.P.'s testimony less probative.

¶ 5 The trial court later denied the State's subsequent motion to admit testimony of an additional male, D.J.W., who claimed to have been sexually abused by Defendant in 2002. Although the trial court found the evidence to be relevant, it determined that the cumulative nature of the evidence would make it more prejudicial than probative.

¶ 6 At trial, N.H. testified that he met Defendant in the fall of 2001 after Defendant moved into a home across the street from N.H.'s home. On the same day they met, Defendant took N.H. to a local carnival. N.H. testified that he went to Defendant's house a few times each month to play basketball or video games. On a few occasions, N.H. was allowed to ride Defendant's 4-wheelers. Defendant would also pay N.H. to do occasional yard work. N.H. stated that during one of his visits, Defendant tried to show him a pornographic magazine.

¶ 7 In the summer of 2003, N.H. went to Defendant's home either to play video games or to watch a movie. N.H. sat on Defendant's couch, and Defendant sat next to him. N.H. testified that Defendant put his hand down N.H.'s pants and touched his penis and testicles. N.H. told him not to do that. Defendant pulled his hand out of N.H.'s pants, said something to the effect of "don't be cool," and moved to a chair. N.H. finished what he was doing and left Defendant's home. A year and a half later, N.H. told his mother what had happened.

¶ 8 J.T.S. next testified about his interactions with Defendant. He first met Defendant in approximately 2000 when he was fifteen years old. J.T.S. was working as a grocery store bagger, and Defendant was a customer at the store. J.T.S. testified that Defendant would initiate conversations with him when Defendant went through the check-out line. Defendant invited him to play basketball and on one occasion gave him a pair of sunglasses.

¶ 9 J.T.S. quit work at the grocery store and did not see Defendant again until the spring of 2004 when J.T.S. was eighteen years old. Defendant saw J.T.S. at a store and noticed that his car was for sale. Defendant expressed interest in purchasing it and insisted that J.T.S. come to Defendant's house so Defendant could test drive the vehicle. When J.T.S. arrived at Defendant's home, Defendant invited him in, offered him a drink of soda, and showed him around the house. Defendant offered to let J.T.S. live there and briefly talked about the two of them pursuing some sort of out-of-state business opportunity together. J.T.S. testified that Defendant began talking about trust in friendship, specifically that guy friends could touch each other in sexual places and that it did not mean they were gay. As they sat on Defendant's couch, Defendant told J.T.S. that he wanted them to be that type of friends, and he began touching J.T.S.'s knee and thigh. Defendant touched J.T.S.'s penis over and then under J.T.S.'s clothing. J.T.S. attempted to stop Defendant, but Defendant used force and J.T.S. became scared.³ On returning to his own home, J.T.S. told his parents and reported the incident to the police.

¶ 10 M.A. then presented his testimony. He met Defendant at a gym in 2002 when M.A. was eighteen years old. M.A. testified that Defendant approached him, invited him to hang out, and indicated that he had friends M.A.'s age. Defendant obtained M.A.'s phone number and later called him. M.A. described Defendant's tone in the phone calls as aggressive. Defendant, M.A., and a couple other guys met once for lunch and, on a separate occasion, cruised State Street.

¶ 11 In approximately July 2002, Defendant invited M.A. to his house. Upon M.A.'s arrival, Defendant gave M.A. a tour of the house and offered to let M.A. stay there. Defendant told M.A. that he was looking for a little brother with whom he could have a business partnership, have fun, and enjoy life together. M.A. testified that Defendant spoke casually about sexual things, such as describing a penis as just "a piece of skin." Defendant told M.A. stories about Defendant and Defendant's friend "going out and ... exposing themselves in public places" and about an incident "in New York ... in which they were both receiving ... oral sexual pleasure and they were high fiving each other." Defendant commented that he and his friend were open with their penises and it was not a big deal. Defendant then asked M.A. if he trusted him and proceeded to grab M.A.'s leg, moving his hand close enough to M.A.'s groin to arouse M.A. M.A. testified that at that point, he knew Defendant's intentions and terminated their encounter. M.A. later made a report to the police.⁴

¶ 12 Defendant also testified at trial. He denied touching N.H., M.A., or J.T.S. in a sexual manner. Although he did not deny being alone with N.H., M.A., or J.T.S. on the dates of the three alleged incidents, he gave a different version of the interactions. Defendant claimed M.A. and J.T.S. initiated the interactions with him, essentially seeking him out. Defendant also suggested that N.H. may have been upset with him for not paying him for catching a stray cat, that N.H. himself often talked about sexual things, and that N.H. exposed himself to Defendant on the day of the alleged incident.

¶ 13 The jury found Defendant guilty of sexually abusing N.H. After the trial court denied Defendant's motion for a new trial, Defendant filed this appeal.

ISSUE AND STANDARD OF REVIEW

¶ 14 Defendant claims that the trial court erred by admitting the testimony of M.A. and J.T.S. and that the error affected the outcome of the proceedings against him. "`We review a trial court's decision to admit evidence under rule 404(b) of the Utah Rules of Evidence under an abuse of discretion standard.'" State v. Marchet, 2009 UT App 262, ¶ 19, 219 P.3d 75 (alteration in original) (quoting State v. Nelson-Waggoner, 2000 UT 59, ¶ 16, 6 P.3d 1120). "In doing so, `we review the record to determine whether the admission of other bad acts evidence was scrupulously examined by the trial judge in the proper exercise of that discretion.'" Id. (alteration in original) (quoting Nelson-Waggoner, 2000 UT 59, ¶ 16, 6 P.3d 1120).

ANALYSIS

¶ 15 Defendant asserts that the bad acts evidence presented at trial should not have been admitted because it served no purpose other than to show a bad character and propensity to commit crime. Rule 404(b) of the Utah Rules of Evidence 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." Utah R. Evid. 404(b). Bad acts evidence may be admitted, however, for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id.

¶ 16 "The Utah Supreme Court has established a three-part test for assessing whether evidence of...