State v. Wareham
| Decision Date | 31 March 1989 |
| Docket Number | No. 860312,860312 |
| Citation | 772 P.2d 960 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. George WAREHAM, Defendant and Appellant. |
| Court | Utah Supreme Court |
R. Paul Van Dam, David B. Thompson, Salt Lake City, for plaintiff and appellee.
Robert Van Sciver, Margo L. James, Salt Lake City, for defendant and appellant.
Defendant George Wareham appeals his conviction of one count of aggravated sexual abuse of a child, a first degree felony.
The victim is defendant's eight-year-old daughter, who was six when the act complained of occurred. She saw a movie at school about sex abuse and shortly thereafter began asking her mother questions about the movie. Sometime thereafter, she told her mother that defendant had been touching her between her legs. The mother confronted defendant with her daughter's allegations, and defendant told her he would stop doing it. Thereafter, the marriage deteriorated to the point that defendant moved out of the house and filed for divorce. When Mrs. Wareham told her two older daughters, aged 16 and 21, about the impending divorce, they both told their mother that defendant had also molested them when they were children. Because of this additional revelation, Mrs. Wareham went to the police.
Defendant was charged with aggravated sexual abuse of a child based on the allegations that he had molested his two older daughters as well as the younger one. The State charged defendant under Utah Code Ann. § 76-5-404.1 (Interim Supp.1984), which provided:
(1) A person commits sexual abuse of a child, if, under circumstances not amounting to rape of a child, object rape of a child, or sodomy upon a child or an attempt to commit any of these offenses, the actor touches the anus, buttocks, or genitalia of a child who is under the age of 14, or touches the breast of a female child who is under the age of 14, or otherwise takes indecent liberties with a child, or causes a child to take indecent liberties with the actor or another, with intent to cause substantial emotional or bodily pain to any person or with the intent to arouse or gratify the sexual desire of any person regardless of the sex of any participant.
(2) Sexual abuse of a child is punishable as a felony of the second degree.
(3) A person commits aggravated sexual abuse of a child when in conjunction with the offense described in Subsection (1) any of the following circumstances have been charged and admitted or found true in the action for the offense:
....
(g) The accused committed, in Utah or elsewhere, more than five separate acts, which if committed in Utah would constitute an offense described in this chapter, and were committed at the same time, or during the same course of conduct, or before or after the instant offense;
....
(4) Aggravated sexual abuse of a child is punishable as a felony of the first degree by imprisonment in the state prison for a term which is a minimum mandatory term of 3, 6, or 9 years and which may be for life.
Prior to trial, defendant made a motion in limine to exclude the testimony of his two older daughters, and the motion was denied. Defendant also made a continuing objection to the use of his older daughters' testimony at the commencement of the trial.
Before the victim testified concerning the specific allegation of sexual abuse charged in the information, the older daughters both testified that prior to the onset of puberty they had each been sexually abused on numerous occasions by defendant. The twenty-one-year-old testified that the abuse started when she was about five and continued about once a week until she was almost twelve. The sixteen-year-old testified that defendant started abusing her when she was seven and continued to do so until she was almost twelve and that the abuse occurred four to five times a week. Neither of the two older daughters tied the instances of abuse against them to specific dates or occasions or even to any particular year. Nor did they testify as to any details of specific incidents. They testified only to general information regarding defendant's actions with each of them.
Before trial, Wareham admitted in an interview with a police detective that he had fondled the eight-year-old once and the sixteen-year-old four to five times per week. The tape of this interview was played for the jury. At trial, however, defendant denied sexually abusing any of his daughters. He claimed his admissions during the police interview were the result of his desire to keep his daughters from having to appear in court because, according to him, a police officer had told him that if he admitted his guilt, he would receive treatment and his daughters would not have to testify.
The jury found defendant guilty of one count of aggravated sexual abuse of a child, and the court sentenced him to a minimum mandatory term of imprisonment of six years. He was also ordered to pay $1,456 in restitution to the Department of Family Services. The trial court granted Wareham's application for a certificate of probable cause, and he was subsequently released on bail pending resolution of this appeal.
On appeal, Wareham asserts that his two older daughters, who were not the victims of the primary offense, should not have been allowed to testify about the abuse committed on them before a verdict was rendered on the underlying charge. He contends that their testimony was used to show that he had an evil or criminal character and a propensity to commit criminal acts which unfairly prejudiced him on the trial of the charged offense. Wareham also asserts that under § 76-5-404.1(3)(g), aggravating acts should be directed at the same victim and, therefore, that the testimony of his older daughters was not relevant to the substantive crime. Wareham claims that the admission of his older daughters' testimony denied him a fair trial in contravention of his right to due process under the Fourteenth Amendment to the federal constitution and Article I, sections 7 and 12 of the Utah Constitution.
Wareham also asserts that § 76-5-404.1(3)(g) is unconstitutionally vague because it places no limitations on the identity of the victim, the remoteness of the conduct alleged, or the type of offense which may elevate simple sexual abuse to aggravated sexual abuse. 1
The State contends that Wareham is not entitled to raise the issue of the admissibility of his daughters' testimony because he did not properly preserve his objection to the admission of that evidence. We disagree.
Defendant filed a motion to suppress the testimony of his two older daughters. That motion was heard on April 16, 1986, by Judge Ronald Hyde. The record contains no indication that Judge Hyde ruled on defendant's motion, but he did request the filing of memoranda from both counsel. On April 29, 1986, the trial started, and Judge John Wahlquist presided. The trial transcript starts by noting that counsel for each side and the judge conducted an off-the-record conference, but there is no indication of the subject matter of that conference. Although the record does not indicate that Judge Wahlquist ever denied defendant's pretrial motion, both sides agree that defendant's motion was denied, even though it is not clear which judge did so.
The procedure in this case raises the question of whether the requirements of State v. Lesley, 672 P.2d 79 (Utah 1983), were fulfilled. Lesley requires a party to object at trial to the introduction of evidence even though a pretrial motion to suppress had been made and denied if the pretrial judge and the trial judge were different. See State v. Johnson, 748 P.2d 1069, 1071-72 (Utah 1987). Lesley is based on the rationale that a trial judge should be afforded "an opportunity to avoid error in the trial which may have been created by an improper ruling on a pretrial motion...." 672 P.2d at 82.
The transcript of the trial of this case indicates that at the start of trial proceedings, defense counsel lodged a continuing objection to evidence of any acts of sexual impropriety between Wareham and either of his older daughters. This objection apprised the trial judge of the problems which defendant perceived in the testimony of the older daughters. The requirements of Lesley were therefore fulfilled, preserving defendant's objection for appeal.
From the earliest days of statehood, this Court has rigorously applied the rule that evidence of a defendant's prior crimes or bad acts is not admissible to show criminal propensity in a criminal case. Such evidence may be admitted only if the evidence has a very high degree of probativeness with respect to a particular element of the crime charged and will not otherwise result in undue prejudice. See, e.g., State v. Huggins, 18 Utah 2d 219, 418 P.2d 978 (1966); State v. Winget, 6 Utah 2d 243, 310 P.2d 738 (1957); State v. Williams, 36 Utah 273, 103 P. 250 (1909). That rule has been carried into our present rules of evidence by Rule 404(b) of the Utah Rules of Evidence, which states, "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." However, Rule 404(b) also states that prior crimes evidence is "admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." (Emphasis added.) Thus, evidence may be adduced "to establish any of the constitutive elements of the crime of which the defendant is accused in the case on trial, even though such evidence tends to prove that the defendant has committed other crimes." State v. Peterson, 83 Utah 74, 80, 27 P.2d 20, 22 (1933). See also People v. Thompson, 27 Cal.3d 303, 314-21, 611 P.2d 883, 887-92, 165 Cal.Rptr. 289, 293-98 (1980); State v. Jenkins, 158 Conn....
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