State v. Van Oostendorp

397 P.3d 877

STATE of Utah, Appellee,

v.Trevor Paul VAN OOSTENDORP, Appellant.

No. 20150135-CA

Court of Appeals of Utah.

Filed May 18, 2017

David M. Perry, Attorney for Appellant.

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

Judge Stephen L. Roth authored this Opinion, in which Judge Gregory K. Orme concurred. Judge J. Frederic Voros Jr. concurred, with opinion.

Opinion

ROTH, Judge:

¶ 1 After a jury trial, Trevor Paul Van Oostendorp was convicted of forcible sodomy and sentenced to an indeterminate prison term of five years to life. He appeals the conviction, challenging the evidence used against him and one of the court's jury instructions. We affirm.

BACKGROUND¹

¶ 2 Van Oostendorp met Victim online in April 2013 and then in person in May. They began a relationship that Victim described as initially good and that included consensual sex. However, by late summer the relationship began to sour; Van Oostendorp started to use derogatory language to describe Victim, and he became physically abusive by pushing and shoving her "a lot." Victim also found Van Oostendorp to be temperamental. His temper was often triggered by money issues related to alimony and child support from a previous marriage, and he would take his anger out on Victim.

¶ 3 By the fall of 2013, Van Oostendorp became more abusive. During oral sex on one occasion, he held Victim's head down until she began to vomit, telling her afterwards that he thought "it was hot." During one argument in which he accused Victim of being unfaithful, Van Oostendorp reached for a gun and threatened to hold it to her head to make sure she was answering truthfully. Although she was able to calm him down that time, Victim also recounted an incident the following January in which Van Oostendorp again threatened her with violence. After losing his temper, he told Victim "that he was going to shoot [her]. That he was going to scalp [her]. That he was going to beat [her] face in. That [her] daughter would no longer have a mother." Victim called the police, but Van Oostendorp had fled the scene by the time they arrived. Afterwards, the pair temporarily reconciled.

¶ 4 The next month, over Valentine's Day weekend, the two quarreled again over the phone and by text message. Although they had previously made plans for the weekend, Van Oostendorp became upset and told Victim, "I'm not coming back there at all. I'm done." When Victim asked about the $1,000 Van Oostendorp owed her, he told her to "take the thousand dollars." Using a signed blank check that Van Oostendorp had previously given her, Victim did so. However, Van Oostendorp then "got irate" when he learned that she had actually followed through on his offer. He told her he had reported her to the fraud department at his bank and that she was "going to go to jail ... [and] going to lose [her] daughter." When Victim accused Van Oostendorp of lying to the bank about the cashed check, he said, "You're damn skippy I lied." Van Oostendorp also threatened to beat Victim and claimed that she was "going to have marks" that she would need to explain away at work. Victim was "absolutely terrified" by the threats, and she called her ex-husband to ensure that he would "take care of [their daughter]" if she did not "make it out today."

¶ 5 Still interacting by phone and apparently having reconsidered his earlier breakup text, Van Oostendorp ordered Victim to "get ready for him" to come home by taking a bath. Although she did not know what she was getting ready for, Victim complied because she "was so scared of him and [she] just wanted to try to ease things over and try and calm him down." As Victim described the events at trial, Van Oostendorp ordered her to stand against the wall in the shower when he arrived at the house. He removed his belt, smacked her with it, and then put the belt in her mouth. He pushed her down onto her knees in the bath tub. He began to urinate "on [her] head and in [her] eyes, and it was running in [her] mouth," which she was not able to close because of the belt. As he did this, he asked Victim, "How do you like that? How do you like that?"

¶ 6 Van Oostendorp then got undressed, stood Victim up, and pushed her forward so that he was behind her. He spit on her anus and then "shoved" his penis into it. Victim, crying, screamed in pain and said, "No, stop. It hurts." Van Oostendorp told Victim to be quiet because he did not want the neighbors to hear. He also forced Victim to look at herself "in the mirror with the urine in [her] hair and [her] makeup running down [her] face." Finally, he put her in the shower and told her to clean off. When Victim got out of the shower, she was in pain, physically shaking, and bleeding. When asked at trial whether the sexual encounter in the bathroom was consensual, Victim testified, "No, it was not."

¶ 7 The State charged Van Oostendorp with forcible sodomy, a first degree felony, under Utah Code section 76-5-403. Before trial, Van Oostendorp moved for a determination of whether Victim was competent to testify at trial and whether her testimony was reliable. The court denied the motion, finding that it had "no legitimate doubts" about her competency and that any questions of reliability "could be adequately investigated through cross-examination." Van Oostendorp also sought to exclude evidence about his history of abusive treatment of Victim under Utah Rule of Evidence 404(b), which prohibits the use of prior bad acts "to prove a person's character in order to show that on a particular occasion the person acted in conformity with the character." The court allowed much of the contested evidence, but excluded some.

¶ 8 At trial, Van Oostendorp conceded that much of the alleged conduct, and specifically the anal sex, had taken place. Thus, whether the sodomy itself—the actus reus of the crime—had occurred was not at issue. Instead, the question for the jury was one of consent. The State put on evidence that Victim had not consented and that Van Oostendorp was at least reckless regarding the lack of consent. A significant part of the State's theory of the case involved characterizing the relationship as generally abusive. Specifically, the State characterized Victim as the subject of a pattern of domestic abuse, sexual and otherwise. Van Oostendorp's defense likewise focused on Victim's consent and his mens rea regarding her consent. He argued that he was acting under a mistake of fact as to Victim's consent when the sexual acts underlying the charge took place, a mistaken belief he claimed was supported by the couple's pattern of consensually engaging in rough sexual activity in the past. That is, his trial theory was that he reasonably thought she consented, even if she did not.

¶ 9 Van Oostendorp sought a jury instruction based on this theory. While the court did not submit the requested instruction to the jury, it did add a paragraph to an existing instruction that addressed the effect of a mistaken belief as to consent. The jury convicted Van Oostendorp of forcible sodomy, and he was sentenced to a prison sentence of five years to life. He appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 10 Van Oostendorp raises three arguments in this appeal. First, he contends that the State submitted insufficient evidence to sustain a jury verdict against him. "When a jury verdict is challenged on the ground that the evidence is insufficient, ... [w]e review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury." State v. Hamilton , 827 P.2d 232, 236 (Utah 1992) (citation an internal quotation marks omitted). "We reverse a jury conviction for insufficient evidence only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he was convicted." Id. (citation and internal quotation marks omitted).

¶ 11 Second, Van Oostendorp argues that the trial court applied rule 404(b) too broadly and erroneously allowed evidence of prior bad acts that was unduly prejudicial. "We review a trial court's decision to admit other acts evidence under rule 404(b) of the Utah Rules of Evidence under an abuse of discretion standard." State v. Plexico , 2016 UT App 118, ¶ 22, 376 P.3d 1080 (brackets, citation, and internal quotation marks omitted).

¶12 Third, Van Oostendorp claims that the trial court erred when it declined to give the jury his proposed mistake of fact instruction. "Whether a trial court committed error in refusing to give a requested jury instruction is a question of law, which we review for correctness." State v. Kruger , 2000 UT 60, ¶ 11, 6 P.3d 1116. However, "[f]ailure to give requested jury instructions constitutes reversible error only if their omission tends to mislead the jury to the prejudice of the complaining party or insufficiently or erroneously advises the jury on the law." State v. Stringham , 2001 UT App 13, ¶ 17, 17 P.3d 1153 (citation and internal quotation marks omitted).

ANALYSIS

I. Sufficiency of the Evidence

¶ 13 Van Oostendorp argues that the "[e]vidence presented by the State was not sufficient to sustain a jury verdict against [him]" because Victim "was incompetent and too unreliable to testify." Without Victim's testimony, which he contends the court should have excluded, "the chances of the State securing a conviction against [Van Oostendorp] were exceedingly miniscule, if [not] non-existent." Assuming without deciding that Victim's testimony was essential to the State's case, the question presented on appeal is whether the court properly determined that Victim was competent to testify at Van Oostendorp's trial.

¶ 14 "Utah law imposes a very low bar for establishing the competency of a witness." State v. Calliham , 2002 UT 87, ¶ 22, 57 P.3d 220. Utah Rule of Evidence 601(a) states, "Every person is competent to be a witness unless these rules provide...