State v. Von Niederhausern

• Decision Date: 09 August 2018
• Docket Number: No. 20160581-CA,20160581-CA
• Citation: 427 P.3d 1277
• Parties: STATE of Utah, Appellee, v. Lamont Stephen VON NIEDERHAUSERN, Appellant.
• Court: Utah Court of Appeals

427 P.3d 1277

STATE of Utah, Appellee,

v.Lamont Stephen VON NIEDERHAUSERN, Appellant.

No. 20160581-CA

Court of Appeals of Utah.

Filed August 9, 2018

Nathan K. Phelps, Draper, Attorney for Appellant

Ryan V. Peters and AnnMarie T. Howard, Attorneys for Appellee

Judge David N. Mortensen authored this Opinion, in which Judges Michele M. Christiansen and Diana Hagen concurred.

Opinion

MORTENSEN, Judge:

¶1 Defendant Lamont Stephen Von Niederhausern allegedly sexually assaulted his adult daughter, Victim, on four separate occasions. The State charged Defendant with two of the four alleged incidents. At trial, the State moved to introduce evidence of the other two incidents under rule 404(b). The trial court allowed the evidence, despite Defendant’s objection, and issued a limiting instruction. The trial court also employed—without objection—a jury instruction based on statutorily undefined terms which the court defined for the purpose of the instruction by using dictionaries. The jury convicted Defendant as charged. Defendant timely appeals, alleging that the trial court abused its discretion by admitting the character evidence and erred in employing dictionary definitions in the additional jury instruction. We affirm.

BACKGROUND¹

Incident One

¶2 Incident One occurred in December 2011, when Defendant visited Victim’s home. During Defendant’s visit, Victim fell asleep on the couch in her living room. She awoke to someone kissing her neck in a "very sexual ... nature" and "assumed it was [her] husband" because it was open mouthed and his tongue was on her neck. He had his left hand pressing on her right rib cage, which was "below [her] breast but ... touching [her] bra[.]" Upon seeing that it was actually her father touching her, Victim froze in place, completely in shock.

¶3 Soon thereafter, Victim’s husband (Husband) entered the room, heard "weird kissing noises," and saw Defendant leaning over Victim with his face down. Husband yelled, "Hey!" and Defendant ran out the door of the house, quickly got into his car, and drove away. Afterward, Defendant stayed away from Victim and her immediate family for approximately eight months.

Incident Two

¶4 Incident Two (Count One) occurred in October 2012. Without permission or invitation, Defendant visited Victim’s new home, where he spent the night. The next morning, Defendant, Victim, and her children were at the house after Husband had gone to work. Victim heard Defendant speak in a "very low, husky voice, and ask[ ] her [daughter] if she had her big girl panties on." Victim’s eight-year-old daughter was visibly shocked. Victim gave him a "dirty look," and he stopped talking to her daughter in that manner.

¶5 Defendant then got on the computer, purportedly to look for a job, but instead pulled "multiple tabs up with pornographic images and violent animal documentaries." Shortly thereafter, Defendant went up to a bedroom to "take a nap." But instead of sleeping, Defendant began to masturbate. Victim caught him and ordered him to leave the house, but he ignored her request. Later, Defendant approached Victim’s six-year-old son and asked "if he had his big boy briefs on" in a "low, husky voice." Victim once again ordered Defendant to leave, and she took her son out of the room.

¶6 Defendant finally acquiesced to the repeated requests for him to leave and slowly took his belongings out to the car. However, once he had packed the final item, he snuck back into the house. Victim became aware that he had returned only after Defendant suddenly pressed against her from behind with his hands on her breasts, thrusting "with his erect penis pushed against her buttocks," kissing the right side of her neck with an open mouth while using his tongue, and grinding against her several times.

¶7 While Defendant sexually assaulted her, Victim froze until she heard her children, who were still in the house. Upon hearing the children, Defendant "whirled around, ran out the open door, jumped into his car," and quickly drove away. Victim began crying and called Husband to relay what had happened. Thereafter, Victim and her family did not see or hear from Defendant for over a year.

Incident Three

¶8 Incident Three (Count Two) occurred during a family event on a Saturday in December 2013. Defendant was invited with the understanding that he was to leave directly afterward. However, because it began to snow, Victim and Husband allowed Defendant to stay at their home over the weekend. On Monday morning, after Husband went to work, Victim sat down at her computer with her back to Defendant. Suddenly, Defendant approached Victim, reached around the chair, put his hands on Victim’s breasts, and kissed her neck with an open mouth using his tongue. Victim told him to stop several times, but he became more aggressive. As the abuse escalated, Victim burst out of the chair and went to the kitchen "fuming." She told Defendant that she was going to call Husband and that he needed to leave immediately. Defendant left.

Incident Four

¶9 A few days after Incident Three, Victim and her family visited her mother’s home to Skype with her sister. When Defendant showed up at the house, Victim left the room that Defendant was in and went into the kitchen. While she was alone in the kitchen, Defendant swiftly approached her and grabbed her from behind. He touched her lower pelvis and breasts and began thrusting against her and kissing her neck.

¶10 Becoming "alarmed that he was bold enough to do this in front of [the] family," she told him to stop, but he became more assertive. He did not stop and when she tried to move away, he grabbed her arms. He started speaking in a "seductive kind of way" to her and she said, "Please let go. Let go of me." He ignored her, so she grabbed a cup of water and dumped it on him. Husband heard her say, "Stop," and, "Let go," and he also saw that Defendant had grabbed ahold of Victim’s arm as she attempted to pull away. Additionally, Husband witnessed Victim toss water in Defendant’s face. At the same moment that the incident began to de-escalate, Victim’s sister called the family on Skype, so Defendant went into the other room to speak with her. When the call ended, Defendant quickly left the house, leaving the door open behind him.

Summary of Proceedings

¶11 The State charged Defendant with two counts of class A misdemeanor sexual battery relating to Incidents Two and Three. See Utah Code Ann. § 76-9-702.1 (LexisNexis 2017). Both counts were based on Defendant touching Victim’s buttocks and/or breasts under circumstances he knew or should have known would likely cause her affront or alarm. See id. Prior to trial, the State moved to present evidence under Rule 404(b) that Defendant had sexually touched Victim on two other occasions: Incidents One and Four. The State argued that the evidence was permissible for the noncharacter purposes of showing context, intent, plan, preparation, motive, knowledge, absence of mistake, or lack of accident, or to complete the narrative and disprove Defendant’s claim that the witnesses were fabricating their version of events.

¶12 The trial court held an evidentiary hearing followed by arguments of counsel. In a written ruling, the trial court allowed the State to present evidence of Incidents One and Four, although the State did not bring charges regarding those incidents. The trial court wrote:

The consistency of grabbing his daughter when he thought others were not watching, of touching her breasts, pressing his pelvis against her buttocks, kissing her neck, and then fleeing when confronted show intent, motive, plan and preparation to commit the crimes charged. This evidence also shows that the defendant ... knew or should know his conduct would likely cause affront or alarm to his adult daughter.

Prior to any testimony by Victim regarding Incidents One and Four, the judge read a limiting instruction reminding the jury that the evidence was to be used for specific, noncharacter purposes. Before closing arguments, the court read the limiting instruction again.

¶13 The trial court also gave—without objection—a jury instruction based on the statutorily undefined terms "affront" and "alarm," which were defined for purposes of the instruction by using three dictionaries: Black’s Law Dictionary, Oxford Dictionary, and Merriam-Webster Dictionary. The jury convicted Defendant as charged. Defendant timely appeals and we reject his contentions.

ISSUES AND STANDARDS OF REVIEW

¶14 Defendant raises two issues on appeal. First, he argues that the trial court abused its discretion by admitting Incidents One and Four as bad-act evidence against Defendant under rule 404(b) of the Utah Rules of Evidence. We review a trial court’s decision to admit evidence under rule 404(b) for abuse of discretion. See State v. Reece , 2015 UT 45, ¶ 17, 349 P.3d 712. While case law has previously spoken of a requirement of "scrupulous examination" of evidence and appellate review has often closely examined the reasoning of the trial court in addressing rule 404(b) evidence, our supreme court recently repudiated that standard. See State v. Thornton , 2017 UT 9, ¶ 53, 391 P.3d 1016. The court clarified that the correct standard of appellate review regarding evidentiary questions is "whether the district judge made an error in admitting or excluding the evidence in question." Id. (emphasis omitted). Said another way, we no longer focus on the path the trial court followed in reaching its conclusion, but review only the conclusion itself. Id. ¶ 3 ("[T]he appellate review of evidentiary rulings is on the decision made at trial, not the process by which that decision is reached.").²

¶15 Second, Defendant contends that his defense counsel was ineffective for allowing the crime of sexual battery to be so broadly defined in the jury instructions that Defendant suffered unfair prejudice. "A claim of ineffective assistance of counsel raised for the first time on appeal presents a question of law that we review for...