State v. Kooyman

DAVIS, Judge

(dissenting).

¶ 53 I respectfully dissent. I disagree with the lead opinion’s conclusion that the trial court’s decision to admit certain evidence did not violate rule 404(b) of the Utah Rules of Evidence. In addition, I disagree with the trial court’s decision to allow Kooyman’s ad*1267mission into evidence. Finally, I believe that the errors committed by the trial court were prejudicial to Kooyman’s right to a fair trial. Accordingly, I would reverse and remand for a new trial.

I. SUMMARY OF THE EVIDENCE

¶ 54 I believe the ■ evidence presented at trial is best viewed when divided into three categories: (A) clearly admissible evidence, (B) Kooyman’s admission, and (C) evidence that Kooyman objected to under rule 404(b) (the bad acts evidence).

A. Clearly Admissible Evidence

¶ 55 Laura Sabien1 was cleaning Kooy-man’s house on the day of the alleged incident, when Kooyman accidentally hit her car with his own car, making her car inoperable! After hitting Sabien’s car, Kooyman called his insurance agent and arranged for a tow truck to pick up Sabien’s ear. Kooyman also drove Sabien to a rental car agency and obtained a rental car for her. After obtaining the rental car, both Kooyman and Sabien drove back to Kooyman’s house to wait for the tow truck and the insurance adjuster to arrive.

¶ 56 Kooyman offered to buy Sabien dinner while the two were waiting, but Sabien declined the offer. Although Sabien declined Kooyman’s offer for dinner, she agreed to have a drink with him. Kooyman then made a margarita for both himself and Sabien. Kooyman testified that he made these drinks from a bottle of premixed margaritas and added a half-shot of tequila to each drink. At some point, Sabien ■ cancelled her next scheduled cleaning appointment and also called her daughter, A.C., to let A.C. know that she was having a drink with Kooyman and that she would be home in about one hour, as well as to ask A.C. to take some pork chops out of the refrigerator to finish thawing.

¶ 57 The insurance adjuster and the tow truck arrived sometime while Kooyman and Sabien were drinking. By 6:00 p.m., all issues concerning Sabien’s car had been taken care of and her car had been towed away. Near this same time, Kooyman saw a friend of his drive by the .house. Kooyman called him and invited him over to.the house for a drink, When Kooyman’s friend arrived, Sa-bien asked Kooyman if she could change into a pair of women’s, jeans that she had seen in Kooyman’s closet. Kooyman agreed, so Sa-bien testified that she changed out of her sweatpants, which she claimed were “hot and dirty,” and into a pair of jeans. At some point while Kooyman’s friend was at the house, Kooyman and Sabien both had another margarita and a shot of tequila. Kooyman testified that he again made these margaritas from a bottle of premixed margaritas and added a half-shot of tequila to each drink.

¶ 58 While Sabien and Kooyman’s friend were talking, Kooyman drove to the liquor store and returned with two bottles of premixed margaritas. Sabien testified that, at that point, both she and Kooyman’s friend told Kooyman that they needed to leave. From this point forward, Sabien’s and Kooy-man’s testimony concerning the events of that evening differ.

■ ¶ 59 Sabien testified that she drank a glass of water, collected her belongings, and headed for the front door. Sabien testified that she' next remembers sitting on Kooyman’s couch and trying to reach for the front door, but could not reach the front door because her arms felt heavy. Sabien testified that she remembered Kooyman giving her a cigarette while she was sitting on the couch, but that she did not remember placing a second phone call to her daughter. Sabien .testified that she next remembered Kooyman showing her a wet spot about one foot in diameter on the upper right-hand corner of his bed. Sa-bien testified that she did not consent, and would not have consented to, any sexual contact with Kooyman. Sabien testified that she did not remember anything after this point *1268until she awoke on her own couch at 3:00 a.m. the following morning.

¶ 60 After the trial court admitted evidence of his admission, Kooyman, on the other hand, testified that Sabien went into his bedroom to retrieve her clothes, sat on the edge of his bed, and took off her shirt. Kooyman testified that Sabien showed him her breasts and stated that they were “not bad for a [forty-]year old.” Kooyman testified that Sa-bien next took off her pants, unzipped the fly of his pants, and handled and licked his genitalia. Kooyman testified that Sabien placed his hand on her crotch, he rubbed her crotch, and he inserted his finger into her vagina. Kooyman also testified that all of this sexual contact was consensual. Kooy-man testified that Sabien then stated that she needed to get home to cook dinner for her daughter, thanked him for a great night, and said she would call him the following day.

¶ 61 Sabien further testified that she did not remember how she got home the .night of the alleged incident, or whether she cooked dinner or spoke with her daughter after getting home that night. Sabien testified that, after awakening on the couch the morning after the alleged incident, she took a shower and noticed that her nipples were sore to the touch and that she had a stinging sensation in her, vagina. Sabien testified that she also vomited, had diarrhea, and had a bloody nose. The day after the alleged incident, Sabien contacted a rape crisis center. The following day, she contacted the police.

¶ 62 A.C. testified that she received two phone calls from Sabien on the night of the alleged incident. A.C.’s testimony about the first phone call agreed with Sabien’s testimony about that call. A.C. testified that during the second phone call, which Sabien testified she did not remember making, A.C. did not notice anything unusual and that Sabien sounded “normal” and “fine.” A.C. testified that after the second phone call ended, she soon fell asleep on the couch, but was awakened by the sound of a car door closing, which was followed by Sabien’s entry through the front door of their house. A.C. testified that, after getting home, Sabien made a phone call and started to cook some spring rolls in a sloppy manner, which was abnormal for Sabien. A.C. testified that she then took a shower. A.C. testified that after getting out of the shower, Sabien was still on the phone with someone and was still cooking the spring rolls. A.C. testified that Sabien asked her if she wanted dinner approximately ten times and that she declined Sabien’s offer each time. A.C. testified that after she went to bed, she got up some time later and Sabien was sitting on the couch and eating. On cross-examination, A.C. testified that Sa-bien was coherent during their conversations that evening, did not have trouble talking on the phone that evening, and was not staggering or falling around the house. A.C. also testified that there was nothing about Sa-bien’s behavior that night that concerned her as Sabien’s daughter.

• ¶ 63 Sabien also testified that she contacted a lawyer after Kooyman was arrested and admitted that they discussed the possibility of Sabien filing a civil lawsuit against Kooy-man. Sabien also testified she “may have” told the attorney that Kooyman was somehow related to the principals of a successful construction business based in Salt Lake City.

B. Kooyman’s Admission

¶ 64 After.Sabien’s testimony, but prior to Kooyman’s testimony, Detective Richards testified that while the police were executing the search warrant on Kooyman’s home, Kooyman was inquiring about the reason for the search. Detective Richards testified that he . told Kooyman that they were investigating the rape of Sabien, to which Kooyman replied, “I didn’t f— her. I only used my fingers.” Over Kooyman’s objection, Detective Richards was allowed to testify about this admission.

,C. The Bad Acts Evidence

¶ 65 The bad acts evidence can be subdivided into three categories. The first category consists of evidence concerning Kooyman’s interest in sex and possession of sexually related items, including Sa-bien’s testimony that Kooyman had often shown her pictures of naked women performing sex acts; Sabien’s testimony that, *1269while cleaning Kooyman’s house, she had seen sex toys and women’s underwear; Sabien’s testimony that Kooyman had a sexually explicit conversation .with Bonnie Jo France in Sabien’s presence; Detective Richards’s testimony that in his search of Kooyman’s home he found “[hjundreds, if not thousands” of “very sexually explicit photographs of women in various sexual positions, performing sexual acts”; and Detective Lambert’s testimony about the items he had seen while searching Kooy-man’s house, which included women’s underwear, “sexual anal beads,” a condom, and sexually explicit photographs. Notwithstanding the fact that the police found no GHB in Kooyman’s home, the second category consists of evidence concerning GHB and the rave party scene, including Detective Lambert’s testimony about GHB, about the rave party scene, and that certain items he found in Kooyman’s house were related to both GHB and the rave party scene; and the testimony of a witness who claimed that Kooyman had offered him GHB during Sabien’s Thanksgiving party. The third category consists of A.C.’s testimony that Kooyman had asked her, while she was a minor, if she wanted Kooyman to pick her up so she could join Kooyman and Sabien for a “cocktail” at Kooyman’s house on the evening of the alleged incident.

II. ANALYSIS

A. Kooyman’s Admission

¶ 66 In my view, the State did not present enough evidence to satisfy the corpus delicti rule, which was in effect at the time of Kooyman’s trial.2 See State v. Johnson, 821 P.2d 1150, 1162 (Utah 1991) (“The corpus delicti rule states that before a defendant’s inculpatory statements can be introduced as evidence against the defendant, the State must prove the occurrence of a crime, i.e., a corpus delicti.”). Accordingly, I believe that Kooyman’s admission was inadmissible pursuant to the corpus delicti rule.3

B. The Bad Acts, Evidence

¶ 67 I disagree with the lead opinion’s conclusion that the trial court’s decision to admit the bad acts evidence did not violate rule 404(b).

¶ 68 First, I believe that the trial court’s failure to make an adequate record of its decision to admit the bad acts evidence was a clear abuse of discretion.

Admission of evidence under [rjule 404(b) is reviewed for abuse of discretion. However, admission of prior crimes evidence itself must be scrupulously examined by trial judges in the proper exercise of that discretion. In other words, failure of a trial court to undertake a scrupulous examination in connection with the admission 'of prior bad act evidence constitutes an abuse of discretion.

State v. Webster, 2001 UT App 238,¶ 11, 32 P.3d 976 (quotations, and citations omitted).

¶ 69 From my review of the record, it appears as though the .trial court resolved most — if not all — of Kooyman’s objections to the bad acts evidence during an in-chambers, pretrial meeting that was not made part of the record. Moreover, I was unable to find any attempt by the trial court to “undertake a scrupulous examination in connection with the admission of’ the bad acts evidence.4 Id. Because of the trial court’s failure in this regard, I believe that its decision to admit the bad acts evidence was a clear abuse of discretion. See id.

¶ 70 Moreover, I believe that the bad acts evidence was inadmissible under rule 404(b). *1270As the lead opinion correctly recognizes, rule 404(b)

precludes evidence of other bad acts by the defendant if its sole purpose is to imply that the defendant has bad character and a disposition to commit the charged offense. This rule works in conjunction with rules 402 and 403 to ensure that a defendant is only convicted because he committed the .charged offense and not because the jury is convinced of his cumulative bad behavior.

State v. Houskeeper, 2002 UT 118,¶ 24, 62 P.3d 444; see Utah R. Evid. 402, 403, 404(b). In determining whether evidence is admissible under rule 404(b), a “trial court must determine (1) whether such evidence is being offered for a proper, noncharacter purpose under 404(b), (2) whether such evidence meets the requirements of rule 402, and (3) whether this evidence meets the requirements of rule 403.” State v. Decorso, 1999 UT 57,¶ 20, 993 P.2d 837.

¶ 71 Under the first part of this test, “the proponent must demonstrate that the evidence is actually being offered for a proper, noncharacter purpose, such as those specifically listed in” rule 404(b). Decorso, 1999 UT 57 at ¶ 21, 993 P.2d 837. “If the court resolves that it is, then it must proceed with the remainder of the analysis. However, if the court determines that the evidence is being offered only to show the defendant’s propensity- to commit crime, then it is inadmissible and must be excluded at that point.” Id.

¶ 72 Under, the second part of 'this test, evidence, is admissible only if it is relevant. See Utah R. Evid. 402. “[Ejvidence is relevant if it has ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” State v. Fedorowicz, 2002 UT 67,¶ 32, 52 P.3d 1194 (quoting Utah R. Evid. 401). “Further, even if otherwise relevant as defined by rule 401, evidence is irrelevant and inadmissible under rule 402 if the evidence is material and relevant to prove only the defendant’s proclivity to commit the crime charged.” Id.

¶ 73 Finally, under the third part of this test, evidence, “[ajlthough relevant, ... may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Utah R. Evid. 403. “Although rule 403 contains a presumption of admissibility of evidence, evidence that has an unusually strong propensity to unfairly prejudice, inflame, or mislead a jury will be deemed inadmissible.” State v. Kell, 2002 UT 106,¶ 30, 61 P.3d 1019 (quotations and citation omitted).

¶74 As previously stated, the bad acts evidence can be subdivided into three categories: (1) evidence concerning Kooyman’s interest in sex and possession of sexually related items; (2) evidence concerning GHB and the rave party scene; and (3) A.C.’s testimony concerning Kooymañ’s “cocktail” offer. I will deal with each of these categories in turn.

¶ 75 First,. I believe that the evidence concerning Kooyman’s interest in sex and possession of sexually related items was inadmissible pursuant to rule 404(b). Initially, I think it is important to note that both parties agreed that consent was the only disputed element of the charged crime in this case.5 With that as a backdrop, I do not believe that the evidence was offered for a noncharacter purpose as required by rule 404(b), but instead was offered to show Kooyman’s “propensity to commit crime.” Decorso, 1999 UT 57 at ¶ 21, 993 P.2d 837. I am unable to see how Kooyman’s interest in sex or sexually related items had any bearing on the existence of Sábien’s consent to the alleged incident, and I do not agree with the lead opinion’s statement that this evidence “clearly established Sabien’s ongoing and consistent rejection of [Kooymanj’s overtures.” In my opinion, this evidence showed, at most, that Kooyman had an extreme interest in sex, but did nothing to demonstrate that he was *1271somehow interested in noneonsensual sex. In addition, I do not believe that this evidence was relevant to prove whether Sabien consented to the alleged incident. See Utah R. Evid. 402. Instead, the sexually related evidence, which was never directly related to the existence of Sabien’s consent, seemed “material and relevant to prove only [Kooy-man’s] proclivity to commit the crime charged.” Fedorowicz, 2002 UT 67 at ¶ 32, 52 P.3d 1194. Finally, and most importantly, I believe the probative value of this evidence was substantially outweighed by the danger of unfair prejudice. See Utah R. Evid. 403. In my opinion, any marginal probative value of the evidence of Kooyman’s interest in sex and sexually related items was clearly outweighed by the “unusually strong propensity to unfairly prejudice, inflame, or mislead [the] jury,” Kell, 2002 UT 106 at ¶ 30, 61 P.3d 1019 (quotations and citation omitted), particularly in this case, where Kooyman was charged with a sex-based crime.

¶ 76 Second, I believe that the evidence concerning GHB and the rave party scene was inadmissible under rule 404(b). Even if I assume that the lead opinion is correct in concluding that this evidence was relevant under rule 402, I would conclude that it was not offered for a noncharacter purpose under rule 404(b). See Utah R. Evid. 404(b). In my view, it was offered “only to show [Kooy-man’s] propensity to commit crime.” Decorso, 1999 UT 57 at ¶ 21, 993 P.2d 837. The fact that no GHB was ever discovered at Kooyman’s house and the fact that there was no direct proof that Sabien ever ingested GHB on the night of the alleged incident underscores this conclusion. In addition, I believe that the probative value of this evidence was clearly outweighed by the danger of unfair prejudice. See Utah R. Evid. 403. In my view, by allowing the jury to hear evidence about Kooyman’s prior experiences with GHB and the rave party scene, the trial court admitted “evidence that ha[d] an unusually strong propensity to unfairly prejudice, inflame, or mislead [the] jury.” Kell, 2002 UT 106 at ¶ 30, 61 P.3d 1019 (quotations and citation omitted).

¶ 77 Finally, I believe that A.C.’s testimony concerning the “cocktail” was inadmissible under rule 404(b). I cannot conceive any possible noncharacter purpose for which this evidence was offered. See Utah R. Evid. 404(b). Further, this evidence is in no way relevant to the only disputed issue in the case — the existence of Sabien’s consent to the alleged incident. See Utah R. Evid. 402. Lastly, this evidence had virtually no probative value and, at the same time, a high danger of unfair prejudice. See Utah R. Evid. 403. In my view, this is exactly the type of bad acts evidence that has a tendency “to unfairly prejudice, inflame, or mislead [the] jury.” Kell, 2002 UT 106 at ¶30, 61 P.3d 1019 (quotations and citation omitted).6

¶ 78 For these reasons, I believe that the trial court abused its discretion in admitting the bad acts evidence.7

C. Prejudice

¶ 79 Not only do I believe that the trial court committed a series of harmful errors by admitting these pieces of evidence, I also believe that the cumulative effect of these errors magnified their harm to Kooyman and prejudiced his right to a fair trial. See State v. Colwell, 2000 UT 8,¶ 44, 994 P.2d 177 (stating that reversal is appropriate under the cumulative error doctrine “only if the cumulative effect of the several errors undermines our confidence ... that a fair trial was had” (alteration in original) (quotations and citations omitted)); State v. Webster, 2001 UT App 238,¶ 38, 32 P.3d 976 (“[A]n erroneous decision to admit or exclude evidence does not ... result in reversible error unless the error is harmful.” (first alteration in original) (quotations and citations omitted)). In *1272addition, I believe that the lead opinion sets a dangerous precedent that could be extremely harmful to criminal defendants in future cases.

III. CONCLUSION

¶ 80 In summary, I believe that Kooyman’s admission was inadmissible pursuant to the corpus delicti rule. I also believe that the trial court abused its discretion in admitting the bad acts evidence. Finally, I believe that the errors committed by the trial court were prejudicial to Kooyman’s right to a fair trial. Accordingly, I would reverse and remand for a new trial.

. At the evidentiary hearing on Kooyman's motion for a new trial, Sabien testified that she met with her attorney late in the afternoon on the day the jury's guilty verdict had been returned. The .attorney testified that during his meeting with Sabien on that day, she authorized him to proceed with a civil suit against Kooyman. The attorney then testified that he filed a complaint commencing the suit the following week.

. Although the Utah Supreme Court has overturned the corpus delicti rule, see State v. Mauchley, 2003 UT 10,¶ 46, 67 P.3d 477, it did not do so until after Kooyman's trial and conviction.

. The effect of this erroneously admitted evidence on Kooyman's decision to testify is not clear from the record. Cf. State v. Russum, 107 Utah 94, 152 P.2d 88, 90 (1944) (holding that the defendant’s right to a fair trial was prejudiced by the trial court's erroneous admission of evidence of his prior convictions).

.The trial court did attempt to explain its decision to admit the bad acts evidence during its ruling on Kooyman's motion for a new trial. However, in my opinion, this effort was hardly a "scrupulous examination in connection with the admission of” the bad acts evidence. State v. Webster, 2001 UT App 238,¶ 11, 32 P.3d 976.

. I recognize that by pleading not guilty, Kooy-man placed every element of the charged crime at issue. See State v. Teuscher, 883 P.2d 922, 927 (Utah Ct.App.1994). However, in their opening statements, both parties asserted that consent was the only issue for the jury to decide.

. I disagree with the lead opinion's conclusion that, even if it was error for the trial court to admit this evidence, the error should be disregarded pursuant to rule 30 of the Utah Rules of Criminal Procedure. I do not believe that the admission of this evidence can be viewed, as it is by the lead opinion, in isolation from the admission of the remainder of the bad acts evidence.

. Based upon this conclusion, it follows that Kooyman’s testimony concerning the bad acts evidence — which was elicited after the bad acts evidence was deemed admissible — would very likely never have been elicited at all.