State v. Lewis

553 P.3d 1081

2024 UT App 96

STATE of Utah, Appellant,

v.Kevin LEWIS, Appellee.

No. 20210661-CA

Court of Appeals of Utah.

Filed July 11, 2024

First District Court, Logan Department, The Honorable Angela Fonnesbeck, No. 191101288

Sean D. Reyes and Jeffrey D. Mann, Salt Lake City, Attorneys for Appellant

Emily Adams, Freyja Johnson, Salt Lake City, and Melissa Jo Townsend, Attorneys for Appellee

Judge Gregory K. Orme authored this Opinion, in which Judge Amy J, Oliver concurred. Judge Ryan D. Tenney dissented, with opinion.

Opinion

ORME, Judge:

¶1 The State charged Kevin Lewis with one count of rape, alleging that some thirteen years earlier he had sex with his then-fiancée (now ex-wife), Jane,¹ while she slept. Prior to filing charges, the prosecutor and law enforcement arranged for Jane to discuss the underlying allegations with Lewis in a recorded phone call. Because the conversation would violate a protective order Jane had obtained against Lewis, the county attorney committed beforehand not to charge Lewis for the protective order violation.

¶2 The recorded conversation was the impetus for the charges against Lewis, and he subsequently moved the district court to suppress the recording of the phone call. The court granted his motion on three grounds, including under rule 403 of the Utah Rules of Evidence. Shortly afterward, the State dismissed its case against Lewis and filed the current appeal challenging the court’s suppression order. Because we conclude the district court did not exceed its discretion in suppressing the recording under rule 403, we affirm.

BACKGROUND

¶3 Lewis and Jane began dating in 2005. According to Jane, they engaged in consensual sex at the beginning of their relationship but decided in late 2005 to abstain from sex for a year so that they could be married in a religious ceremony. They married in 2007 but divorced just short of ten years later.

¶4 In 2016, a few months before the divorce was finalized, Jane sought, and the district court² granted, a protective order against Lews.³ The protective order prohibited Lewis from, among other things, con- tacting or "communicating] in any way" either directly or indirectly with Jane "except [for] civil written communication including email & text messages regarding [their] minor children." The protective order was still in place at the time police investigated and the State charged Lewis in the criminal matter at issue here.

The Allegations

¶5 In 2019, Jane reported to police that Lewis had raped her in her sleep thirteen years earlier when they were engaged. At the subsequent preliminary hearing, Jane testified that she had difficulty sleeping and, on an almost daily basis, she took over-the-counter sleep aids that made her "very drowsy" and helped her reach "heavy or deep" sleep. She stated that back in 2006, Lewis would also help her fall asleep by comforting her and making her "feel like it was okay to go to sleep." Lewis would typically do so either by lying next to her on top of the covers while she was underneath the covers or by kneeling beside the bed. Jane stated that they had agreed beforehand that Lewis was to go home after she fell asleep.

¶6 Jane alleged that during this time, she began having "dreamlike memories" and "fragmented recollections" of Lewis "being pressed up against [her] underneath the covers, pulling [her] pants down or pulling his pants up, getting out of bed and straightening the covers." Although Jane was not sure how many times she had such memories, she stated that it was "more than once." She also testified Lewis became "really upset" when she once mentioned these memories to him, and he told her she "must have dreamed that." Jane stated that his reaction caused her to "feel really terrible" about herself and to question her "frame of mind in thinking that he would do something like that."

¶7 Jane testified that years later, during their marriage, Lewis sought counseling for pornography and sex addiction. She alleged that in 2015, as part of the twelve-step recovery process, he shared with her "a list of his moral inventory wrongdoings," including that when they were engaged, he had had sex with her while she was sleeping. He did not provide her with any more details beyond that disclosure. Jane stated that this disclosure contributed to their divorce a year later. When asked why she waited until 2019 to report these allegations to the police, Jane responded that she and Lewis were working on issues in their marriage at the time and that she was concerned for her and her children’s safety. She further explained that after the divorce was finalized in 2016, she still had safety concerns and that "it took seeing a … therapist to be able to even face the trauma of what [she] had experienced."

The Recorded Phone Call

¶8 After reporting these allegations to the police, Jane agreed to aid them in their investigation by participating in a recorded phone call with Lewis. Because the protective order allowing only written communications regarding their minor children was still in place, the county attorney "granted permission for a confrontation phone call to occur" by confirming with the police that no charges would be brought against Lewis for violating the protective order when he spoke with Jane over the phone.

¶9 In September 2019, Jane called Lewis from the police station. The phone call lasted a little over 19 minutes. When Lewis answered, Jane stated, "Hi, Kevin. I was just wondering if I could get you to listen on the phone to me for a little bit? I know I’m taking a chance calling you, but I just need to talk to you for a few minutes." Lewis responded, "Sure." What followed was a brief discussion about their children, after which Jane stated that the reason she wanted to speak with him was she thought "that things would be a lot easier on the kids if [they] were able to get along and talk more," and she asked whether she could speak to him "about a couple of things" she was "trying to work through so that" they could "move past some things." Lewis answered, "Okay."

¶10 Jane then stated that she was "having a really hard time" accepting the fact that during the time they were supposed to be abstaining from sex, he "would have sex with" her while she "was asleep." She said she felt guilty because they had nonetheless married in a religious ceremony, and she asked whether he felt the same. Lewis an- swered, "That is stuff I’ve worked through for several years. So for me … I feel like it’s been dealt with and taken care of, addressed properly. But not with you, I guess." As the conversation continued, the following was said:

[Jane]: …. I’m just really struggling with what you did to me.

[Lewis]: Well, I am sorry.

[Jane]: Why did you think it was okay to do that to me while I was asleep?

[Lewis]: I don’t recall the thinking that I was having back then, but I do know that those thoughts, those patterns were wrong, and that’s part of what I’ve gone through to fix in my life and put in my past.

[Jane]: I understand that it’s in the past and it’s something that you’ve worked through. It’s just something that I’m still suffering with and hurting from. And so— [Lewis]: Well, like I said, I’m sorry. I’ve done a lot of wrong things and a lot of bad things. And frankly there’s nothing that I can do that will, I don’t know, provide any sort of restitution. That ship has sailed long ago for us.

¶11 Jane then asked Lewis to give his "perspective" on what happened. Lewis replied, "I am not in a position to give you any of my perspective on it. I’m sorry." Jane then asked whether it was something he had sought counsel from religious leaders regarding, and Lewis responded, "Yes." Jane then said she still did not understand why he thought that what he did was "okay," to which Lewis responded, "I haven’t said I thought it was okay. I said it was wrong and I’m sorry." When Jane countered that speaking to her about it was also part of the process of repentance, Lewis said, "technically this conversation shouldn’t be happening because it’s not about the kids." Jane then said, "I know I’m taking a really big risk talking to you," at which point Lewis inter rupted her stating, "I’m the one taking the risk. Because you could at any moment call the police and say that we had this conversation. And it makes me extremely uncomfortable that you have that leverage against me when it was completely uncalled for."

¶12 Jane reassured Lewis that she would not report the conversation to the police and stated that the protective order "applies to me just as much as it applies to you."⁴ Jane continued to press him further, stating that she was "trying to get past this" for their children’s benefit. She asked him, "[D]o you remember when you were going to your self inventory and you shared with me about having sex with me while I was asleep?" Lewis’s response is unclear.⁵ Jane also stated that she had been going to therapy and was trying to talk to him about it so that she could "have a chance to heal and move on." Lewis then stated, "I don’t know if there’s anything you’re expecting me to say, but I don’t have much to say about the matter."

¶13 Jane then directly asked him, "How did you keep me from knowing?" Lewis answered, "Not sure. It’s part of the lies and the secrecy of the addiction, I guess." Jane then asked what would have happened if she had become pregnant and whether he had used contraception. Lewis answered that "[n]othing was used" and with further prompting stated that he never ejaculated inside her.

¶14 Jane asked whether he loved her at the time. After Lewis confirmed that he did, Jane asked, "I’m just trying to reconcile if you loved me why you would rape me?" Lewis answered, "I didn’t view it as that." He further stated, "At the time I’m not entirely certain I even thought about it. A lot of times I’d ask you if you wanted it and you’d mumble yes." He also said he could not remember ever not asking her for permission but...