State v. Gasper

436 P.3d 200

STATE of Utah, Appellee,

v.Aaron GASPER, Appellant.

No. 20160872-CA

Court of Appeals of Utah.

Filed August 23, 2018

Herschel Bullen, Salt Lake City, Attorney for Appellant.

Sean D. Reyes, Jeanne B. Inouye and Jeffrey D. Mann, Salt Lake City, Attorneys for Appellee.

Judge David N. Mortensen authored this Opinion, in which Judges Kate A. Toomey and Ryan M. Harris concurred.

Opinion

MORTENSEN, Judge:

¶1 Defendant Aaron Gasper hosted a house party in the summer of 2014. Following the party, a teenage guest accused Gasper of twice raping her during the course of the evening. The State charged Gasper with two counts of rape and sought to admit evidence under rule 404(b) of the Utah Rules of Evidence of a previous instance of alleged sexual assault involving Gasper. The district court admitted the evidence for the noncharacter purpose of intent and under the doctrine of chances. Gasper later pled guilty to second degree forcible sexual abuse, preserving his right to appeal the district court's ruling admitting the disputed bad act evidence. The district court subsequently sentenced Gasper to an indeterminate prison term of one-to-fifteen years, rejecting his request to impose probation instead of prison. He appeals and we affirm.

BACKGROUND

Victim Incident

¶2 In August 2014, Victim attended a friend's birthday party that Gasper hosted at his home. Victim testified that she let the party guests know that she had a boyfriend and was not romantically interested in anyone else. She also tried to limit her alcohol consumption—she had "two or three strawberry-flavored ales." At the party, Victim met Gasper for the first time.

¶3 As the party progressed, Gasper repeatedly attempted to convince Victim to drink shots of alcohol, which she declined until later in the night. When she finally did drink one of the shots Gasper offered her, Victim immediately became nauseated and tired. Gasper, a licensed massage therapist, then offered to give her a massage. Victim allowed Gasper to give her a massage with the caution that he "[could not] touch anything that would normally be covered by [her] underwear." She then lay on the floor and fell asleep as he massaged her back.

¶4 The next thing Victim remembered was being wakened in the dark and moved to a couch. She vomited while she was on the couch, and someone—she believed it was Gasper—gave her a clean T-shirt to wear. She again fell asleep and awoke the next morning only to realize that Gasper "was currently having sex with [her]." Somehow, she had been moved from the couch to a bedroom, where she awoke to a "burning and tearing sensation in ... the vagina and labia"—with Gasper on top of her.

¶5 Victim immediately put on her clothes and went home. Upon arriving home, she texted a few friends, including her boyfriend, about what had happened. One of her friends took her to the police station a few hours later. Afterward, she went to the emergency room, where medical personnel collected evidence for a rape kit. She later talked to a police detective about the incident, stating that she did not give Gasper any indication she was interested in him and, more importantly, she did not consent to having sexual intercourse with him.

¶6 Gasper, when later interviewed, admitted to the police that he had sexual intercourse with Victim when they were sitting on the couch together while the party was winding down. When asked about being in the bedroom with Victim the next morning, he said that he wanted to lie with her in the bed and that she needed assistance.

The Alleged Previous Incident

¶7 Prior to trial, the State moved to admit bad act evidence against Gasper. During the evidentiary hearing on the State's motion, Witness gave an account of her alleged experience with Gasper in January 2013. At that time, she and her brother, (Brother) were living together. Witness testified that around 10 p.m., Brother brought a couple of friends home. One of the friends was Gasper.

¶8 This was the first time Witness had met him. Witness also testified that despite her protests, Gasper kept inappropriately touching her, including her buttocks. She told Gasper that she had a boyfriend and was not interested in him, to which Gasper responded, "Oh, I do this all the time ... I'll make you feel better." Witness testified that she "knew [Gasper] was a massage therapist ... and that was the indication that he gave me ... [that he could] make my shoulders so I wasn't tense." She rejected his offer and continued to decline his additional physical advances.

¶9 At some point in the evening, he brought her an already-opened beer. She accepted the drink and they both proceeded to "chug" their respective beers. Almost immediately, she felt dizzy, sick, and very tired, as though she needed to go to sleep. Sensing impending sickness, she headed to her bedroom to lie down—alone.

¶10 Witness did not wake up until 4 p.m. the next day, which was very unusual for her. When she awoke, she was completely nude, which was also out of character. Because she shared the apartment with her brother, Witness testified that she never slept without clothes on. Additionally, after waking up, she experienced vaginal pain "like she might be torn." When she went to remove a tampon that she had inserted the night before, she initially could not find it. She then realized it was lodged deep inside of her, and she was eventually able to remove it only with great difficulty.

¶11 A couple of days later, Witness discussed the experience with Brother,¹ and he told her that he had seen Gasper coming out of her bedroom on the morning in question. At that point, she contacted rape crisis counselors and filed a report.

Summary of Proceedings

¶12 The State charged Gasper with two counts of rape for his conduct against Victim. The State filed a motion to admit evidence of Gasper's alleged assault on Witness under rule 404(b) of the Utah Rules of Evidence, but the court later struck that motion when the State could not proceed at the scheduled evidentiary hearing.

¶13 The State then filed a second motion to admit the evidence, arguing that evidence of Gasper's alleged sexual assault on Witness was relevant to establish Gasper's intent to engage in sexual intercourse without Victim's consent, to show a lack of accident or mistake as to consent, and to rebut Gasper's claim that Victim was fabricating her allegations. The State also argued that the evidence was relevant under the doctrine of chances and any risk of unfair prejudice in admitting the evidence did not substantially outweigh its probative value. After an evidentiary hearing during which it heard the testimony of Witness and Brother, the district court granted the State's motion to admit the evidence and entered corresponding findings of fact and conclusions of law.

¶14 Gasper later entered a plea of guilty to one count of forcible sexual abuse, a second degree felony, the terms of which preserved his right to appeal the district court's ruling admitting the bad act evidence of his conduct against Witness. The district court sentenced Gasper to a prison term of one-to-fifteen years, rejecting his request to impose probation instead of prison. Gasper appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Gasper raises two issues on appeal.² First, he argues that the district court abused its discretion under rule 404(b) by admitting the bad act evidence against Gasper. We review a district court's decision to admit evidence under rule 404(b) for abuse of discretion, State v. Reece , 2015 UT 45, ¶ 17, 349 P.3d 712, and assess "whether the district judge made an error in admitting or excluding the evidence in question," State v. Thornton , 2017 UT 9, ¶ 53, 391 P.3d 1016 (emphasis omitted). In other words, we do not focus on the path the district court took in reaching its conclusion, but review only the conclusion itself. Id. ¶ 3 ("[A]ppellate review of evidentiary rulings is on the decision made at trial, not the process by which that decision is reached.").

¶16 Second, Gasper argues that the district court abused its discretion by unfairly sentencing him to prison—rather than suspending his sentence and imposing probation and monitoring—in light of his "background and the crime committed" as well as "the interests of society." We review the district court's sentencing decision, including its decision to grant or deny probation, for abuse of discretion. State v. Valdovinos , 2003 UT App 432, ¶ 14, 82 P.3d 1167. "An abuse of discretion results when the judge fails to consider all legally relevant factors or if the sentence imposed is clearly excessive." Id. (cleaned up).

ANALYSIS

I. Admission of Bad Act Evidence

¶17 Gasper asserts that the district court abused its discretion by admitting bad act evidence under rule 404(b) of the Utah Rules of Evidence. His contention lacks merit because the bad act evidence meets the admissibility standards under rule 404(b), which provides:

Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in conformity with the character.... [but] may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

Utah R. Evid. 404(b). Accordingly, evidence of a defendant's bad act is not admissible to show a defendant's propensity to engage in criminal behavior. State v. Burke , 2011 UT App 168, ¶ 29, 256 P.3d 1102. But bad act evidence may be admissible under rule 404(b) for other proper, noncharacter purposes. See Utah R. Evid. 404(b)(2).

¶18 Although appellate review regarding the admission of evidence is ultimately limited to "whether the district judge made an error," our supreme court has also noted that best practice encourages the court to "march[ ] through the standards set forth in rules 404(b), 402, and 403, and present[ ] ... analysis on the record. And the judge who does so will be...