State v. Diviney

500 P.3d 883

STATE of Utah, Appellee,

v.Larry Charles DIVINEY, Appellant.

No. 20190778-CA

Court of Appeals of Utah.

Filed October 7, 2021

Emily Adams, Freyja Johnson, and Cherise M. Bacalski, Attorneys for Appellant

Sean D. Reyes and David A. Simpson, Attorneys for Appellee

Judge David N. Mortensen authored this Opinion, in which Judge Diana Hagen and Senior Judge Kate Appleby concurred.¹

Opinion

MORTENSEN, Judge:

¶1 Shoeless, bloody, emotional, and carrying her small child, Ella² stumbled into a convenience store just after 3:00 a.m. one November morning. Soon after, she explained to responding police officers that her husband, Larry Charles Diviney, had locked her in their basement apartment and beat her with a baseball bat before she was able to collect their child and escape. Although Diviney told police a different story—a story that involved him inadvertently hitting Ella with the baseball bat while fighting with an unidentified home intruder—after trial, a jury convicted Diviney of domestic violence in the presence of a child, aggravated kidnapping, and aggravated assault. Diviney appeals, and we affirm.

BACKGROUND³

The Attack

¶2 Convinced Ella was cheating on him, Diviney was suspicious and angry. And during a weekend trip to Las Vegas in the midst of him harboring these beliefs, he punched her in the face and forced her to use drugs with him. But the weekend was only beginning. After arriving back home, and after Ella had put their child to bed, Diviney yelled at her, threw a plate at her, broke a Swiffer mop against the cupboards above her head, and again punched her in the face. Ella fled to the child's room, where she spent the night listening to Diviney moving about in the living room and kitchen.

¶3 The next day, Diviney again began yelling at Ella, this time in front of their child. So Ella left their apartment, child in arm, to visit a nearby park. But Diviney followed, driving past the park multiple times. When the November air started getting cold, when no one answered the door at her father's apartment, and when the dark of night approached, Ella returned home and, finding herself without a phone or key, broke a window to get into their apartment.

¶4 When Diviney returned and became infuriated over Ella breaking the window, she told him she had no other choice and asked him to leave. Diviney left, but only long enough for Ella to put their child down for bed, leaving the bedroom door cracked open so she could hear the child while she smoked a cigarette. Soon, Ella saw Diviney arrive at the apartment carrying a baseball bat and she ran outside, screaming for Diviney "not to hurt her" and to leave. He left. Ella retreated to their apartment, but no sooner had she checked on the still-sleeping child, than Diviney returned, bat still in hand.

¶5 Diviney insisted to Ella that he returned only to light a fire to keep Ella and their child warm, and Ella told him he could stay "as long as he didn't try to talk to her." After only ten minutes, Diviney resumed berating Ella, and she walked up the staircase to leave—only to find her way blocked by a locked door. From behind her, Ella heard Diviney say "You're not going anywhere." He then "grabbed her by her hair, pulled her off her feet, and dragged her back down the stairs." Breathless and on her knees, Ella tried to stand, but Diviney hit her head with the baseball bat. When Ella raised her arms in protection, Diviney hit her in the arm. And when Ella tried to stand again, Diviney hit her a third time.

¶6 In a daze, Ella asked for something to stop the blood now flowing from her head. In response, Diviney dragged her by the hair saying, "[F]ine, let's go to the bathroom." The tissue she used to stop the bleeding did not work, but when Ella insisted she needed medical care, Diviney slammed the bathroom door, telling Ella that she was not "going anywhere," that she would "sit there and talk to" him, and that she had "destroyed [his] life and [he was] going to destroy" hers. If she did not answer his questions truthfully, he threatened to hit her again and use a meat grinder to break her toes. Diviney interrogated Ella about her alleged infidelity, but Ella's insistent denials only made him angrier. Ella recalled that she felt "[e]verything [she] said was just wrong" as far as Diviney was concerned. After being hit "multiple times again," Ella played it safe and started to "agree[ ] with him." Throughout the ordeal, Ella begged to check on their child to see if he was "hearing this," but Diviney refused.

¶7 When Diviney finally took Ella out of the bathroom, he rebuffed her requests to check on their child and ultimately positioned himself (baseball bat in hand) between her and the door to the outside. "[Y]ou have to understand," he said, "only one of us is getting out of here alive tonight and it's not looking good for you." Diviney became angrier and angrier, and when Ella asked if she could call someone, Diviney taunted, "[G]o, call someone," but "[y]ou'll be dead and I'll be gone before they get here." Suddenly, to Ella's relief, Diviney (who had a history of heart problems) "leaned over, grabbed his chest," sat down, and "passed out."

¶8 Ella snuck past Diviney, collected their child, unlocked the door, and ran into the night without even pausing to put on shoes. She was visibly distressed when she stumbled into a gas station just after 3:00 a.m., bruises on her face, arms, leg, shin, and hip, and bleeding from the gash on her head. After responding police finally succeeded in calming her, she detailed much of what has been described.

¶9 Diviney, on his part, never reported Ella or their child missing, and when police visited the apartment, Diviney was nowhere to be found. The door was locked, but after forcing their way in, police found many things that corroborated Ella's account. When police apprehended Diviney, he told a different story. According to Diviney, on that day he had come home from work to find Ella "making solicitation with the guy across the street," and when he went into the apartment, another man was in the bathroom. The man allegedly attacked Diviney with a baseball bat, hitting him "in the nose and knocking out some of his teeth." When Diviney got the bat away from the intruder, he swung at the intruder's head, but the intruder ducked, and Diviney "accidentally" hit Ella in the head. According to Diviney, when he offered to take Ella to the hospital, she refused, so Diviney went to bed, and when he woke, Ella and their child were gone.

¶10 Diviney swore this all resulted from Ella's involvement in an ongoing prostitution ring. He alleged that she would leave "the [apartment] to go catch clients" and "used a coded system of lights to communicate with the rest of the ring." Diviney reported that a minor "irritation" on his nose was actually a broken nose that resulted from being hit in the face with the bat, and although he initially denied knowing why the Swiffer mop was broken, he ultimately admitted that he had stomped on it and threw it because he was angry that Ella was "sleeping around with these guys." Diviney maintained that Ella's accusations were false and that she just wanted him in jail.

¶11 The State charged Diviney with aggravated kidnapping, aggravated assault, and commission of domestic violence in the presence of a child.

The Trial

¶12 At trial, defense counsel began by telling the jury that "at the core" of the conflict was Ella's "deep-seated fear ... that she was going to lose her child." This fear was "driven largely because [of] her history with drug use when the child was born," a history that caused Child Protective Services to become involved because she had "admitted to using drugs during her pregnancy." The idea behind this theory was that Ella had framed Diviney for domestic violence to prevent him from reporting her drug use to Child Protective Services. But later, Diviney chose not to testify, a choice that resulted in a lack of "evidence that [Ella] actually was using drugs at the time of the crime." So defense counsel adjusted the approach, focusing primarily on Ella's credibility, while leaving the door open to the drug-based theory.

¶13 While cross-examining Ella, defense counsel asked her about allegations that, in the months leading up to the abuse, Diviney found a methamphetamine pipe in Ella's belongings and later confronted her when he found a syringe. Ella denied the allegations. When Ella testified that she did not "do drugs close in time to this incident," defense counsel doubled down on the opportunity to question Ella's credibility and to offer evidence of her drug use to support the defense's original theory of the case. Defense counsel elicited testimony that she admitted to taking drugs during the Las Vegas trip, but Ella averred that "the only reason [she] did drugs is because [Diviney] threatened [her] to do the drugs." When pressed on the issue and asked whether her testimony was that "the only time [she had] ever done drugs was that day," she responded, "No, I'm saying there's this incident that was those days. That was the only, for months and months that was the only time."

¶14 Ella denied that she had obtained drugs on the Las Vegas trip, that she solicited men to obtain drugs for her, that drugs were the true basis for the arguments leading up to the abuse, that she had ever "been in any fear of losing" her child, and that she feared Diviney would report her to Child Protective Services for using drugs. As to using drugs during the Las Vegas trip, Ella testified,

I am absolutely ashamed ... just ashamed completely. It's not something that I do and so. It was just that, I mean, what I'm trying to say is that what happened, it only, even though it was only one time, I was ashamed of it. And so it was very hard for me to bring it to you and talk to you. But I wanted to be 100 percent honest, so.

Defense counsel contended that this testimony had "opened the door to where [he] should [have been]...