State v. Wach, 990940.
| Decision Date | 17 April 2001 |
| Docket Number | No. 990940.,990940. |
| Citation | 2001 UT 35,24 P.3d 948 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Paul Michael WACH, Defendant and Appellant. |
| Court | Utah Supreme Court |
Mark L. Shurtleff, Att'y Gen., Marian Decker, Asst. Att'y Gen., Susan Hunt, Salt Lake City, for plaintiff.
Linda M. Jones, Lisa J. Remal, Salt Lake City, for defendant.
¶ 1 Defendant Paul Michael Wach ("Wach") appeals from convictions of aggravated kidnaping, a first degree felony, in violation of Utah Code Ann. § 76-5-302 (1999), and assault, a class A misdemeanor, in violation of Utah Code Ann. § 76-5-102 (1999). Wach contends that his convictions should be reversed because (1) the trial court committed prejudicial error by failing to remove two prospective jurors for cause, and (2) the trial court failed to declare a mistrial after evidence was introduced at trial in violation of rule 404(b) of the Utah Rules of Evidence. We affirm.
¶ 2 On January 20, 1999, the State charged Wach with the assault and aggravated kidnaping of his mother, Bobbie Wach Glen ("Bobbie"). At trial, Bobbie testified as follows:
¶ 3 In January 1999, Wach was living with Bobbie in her split-level home. On the evening of January 13, 1999, Bobbie arrived home at approximately 9:30 p.m. after working a fourteen-hour shift. Upon entering the house, Bobbie went to the back deck where she found Wach and two friends smoking cigarettes and drinking "Schnapps and beer." Bobbie told Wach that it was late and that his friends would have to go home. However, while Bobbie changed into her pajamas, Wach and his friends went downstairs.
¶ 4 A short while later, realizing that Wach's friends were still in the house, Bobbie went downstairs and told Wach, Wach, feeling "humiliated and embarrassed . . . by [his] mom telling [him] what to do," began forcing Bobbie up the stairs by pushing her and hitting her with his fists. Upon reaching the top of the stairs, Wach hit Bobbie "a good one on the side of the head and then. . . started hitting [her] in the face and the forehead." Bobbie pleaded with Wach to stop, but Wach continued hitting her until she fell over a chair and onto the floor.
¶ 5 While Bobbie was on the floor, Wach kicked her on the shoulder, called her derogatory names, "slugg[ed][her] in the face and the head," and then inexplicably began biting her ears. At some point, one of Wach's friends reached down to help Bobbie, but Wach responded by saying, Bobbie recalled that the hand promptly "disappeared" before she could take it.
¶ 6 Thereafter, Wach pulled Bobbie up off the floor by her hair and told her that she was going to go with him to take his friends home. Bobbie told Wach that she "didn't want to go," but Wach replied, Accordingly, Bobbie started to walk into her bedroom to get some shoes, whereupon Wach resumed the assault, "slugg[ing] [Bobbie] in the back of the head," causing her to fall over a chair, breaking it in half. Wach hit Bobbie "a couple more times" and then grabbed her by the neck and arm and led her outside to his car. Bobbie was wearing no underwear or shoes, only her cotton pajamas.
¶ 7 As Wach was opening the car door, Bobbie broke loose and ran to the neighbor's house and up the driveway. Before she could reach the front door, however, Wach tackled her and began hitting her, biting her ears, and pulling her hair. Wach then pulled Bobbie up off the ground, dragged her down the driveway, and forced her into his car. Unbeknownst to Wach, Bobbie had a house security alarm hanging on a chain around her neck under her clothes that could be activated by simultaneously depressing two buttons. As Bobbie got into the car, she depressed the buttons, causing the house security alarm to go off and summoning the police.
¶ 8 Wach then drove a short distance to drop off his friends. As Wach's friends got out of the car, they invited Bobbie to go with them. Bobbie stated that she wanted to go with them, but Wach said, Because she was afraid Wach "was going to hurt [her] again," Bobbie stayed in the car. Wach then shut the car door and drove back to Bobbie's house.
¶ 9 As they approached the house, Wach noticed that a police car was parked in the driveway and therefore drove past the house to a local supermarket where he parked the car. At the supermarket, Wach told Bobbie that "none of this would have happened if [she] would have kept [her] fucking mouth shut." Wach also stated that he was mad at Bobbie because she had "broke[n] his fist." Thereafter, Wach displayed a knife with a six-inch blade and, while thumbing the blade, turned to Bobbie in the back seat and said, "[I] ought-ta" — but never finished his sentence. Wach then started the car and drove back to Bobbie's house.
¶ 10 As they approached the house the second time, Wach noticed that the police were still there, and he therefore drove to "some really slum[my] area" that Bobbie was unfamiliar with and parked the car near some apartments. By this time, Bobbie's head, ears, and legs were "killing" her, and she was "freezing cold," "shaking," and "afraid for [her] life." Wach shut off the car, got out, and did not return for about forty minutes. When Wach returned, he "[tried] to apologize," repeatedly telling Bobbie that "he was sorry that he had to hit [her]." Bobbie said nothing in response, but when Wach "got mad because [she] didn't say anything," Bobbie apologized to him. Wach replied, "[T]hat's right."
¶ 11 Wach then drove to Bobbie's house a third time. This time the police were gone, and therefore Wach parked the car and allowed Bobbie to go inside. Bobbie rested on her bed for twenty to thirty minutes because she was "really hurting" and could feel "water in [her] ear" when she moved her head. The pain was so intense that Bobbie thought she "was going to die." While she was lying on her bed, Bobbie's sister Mona called. Bobbie told Mona about the assault perpetrated against her by Wach, and Mona said that she was coming over.
¶ 12 Mona arrived approximately one-half hour later with Bobbie's mother, another sister, and the police. Bobbie was waiting outside because she was afraid Wach would not allow her to leave. Bobbie, however, refused to speak with the police because "the beating was over at that time" and Wach "had told [her] before that if the police were involved, then [she] was dead." After Bobbie told her sister that she "was afraid for the police to be involved," the police left. ¶ 13 Bobbie spent the rest of the night at her mother's house. The next day, Bobbie went to the hospital, where the incident was eventually reported to the police.
¶ 14 In contradiction to Bobbie's testimony, Wach testified at trial that he never "punched" or "kicked" Bobbie, although he did "hit her in the forehead with the palm of [his] hand" and "slapp[ed]" her both downstairs and in the kitchen. Moreover, Wach testified that Bobbie's fall was caused by her tripping on the stair railing as she walked into the living room. Wach claimed that he offered to help Bobbie up off the floor, but that she refused his help. Wach further testified that Bobbie then stood up, immediately put on her slip-on shoes, and voluntarily accompanied him to take his friends home. As they were walking to the car, Wach remembered guiding Bobbie with his arm around her shoulder because she was mistakenly "drifting" toward another car parked on the street.
¶ 15 Following a two-day jury trial, Wach was convicted of assault and aggravated kidnaping. Thereafter, the trial court sentenced Wach to an indeterminate prison term of ten years to life for aggravated kidnaping, and a term of 365 days for assault, with the terms to run concurrently.
¶ 16 Prior to trial, the trial court conducted voir dire1 of prospective jurors. Initial voir dire by the trial court involved ascertaining whether any of the prospective jurors had been involved in some kind of an assault, or had any relatives or friends who had been assaulted. The trial court's question elicited the following exchange with prospective juror No. 3:
Wach's defense counsel requested no additional voir dire of juror No. 3 beyond that conducted by the trial court.
¶ 17 The trial court also asked the prospective jurors whether they "had any experience in terms of observing a criminal offense." This question elicited the following exchange with prospective juror No. 21:
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