August 9, 2013, Utah Supreme Court Case Summaries

State v. Richardson, 2013 UT 50, No. 20110168 (August 9, 2013)

Issue: Evidence of Prior Sexual Relationship with Victim

Justice Lee,

Cameron Richardson appeals from convictions for rape and forcible anal sodomy. He claims error in his trial in the exclusion of evidence of the specific nature of his prior sexual relation-ship with the victim—evidence he claims was properly admissible under Utah Rule of Evidence 412(b)(2)(A). We agree. We hold that the trial court misconstrued this rule to incorporate a heightened standard of relevance, and we reverse and remand for a new trial.

At ¶ 1.

Before trial, Richardson filed a motion to introduce evidence of the victim‘s prior conviction for lying to police officers about a sexual assault (which was granted and not appealed), and evidence of prior instances of sexual conduct between him and the victim under Utah Rule of Evidence 412. Specifically, Richard-son wanted to offer evidence that he and the victim had engaged previously in “consensual instances of oral sex, sex while the alleged victim was having her period and anal sex between the two parties.” He informed the court that he wanted to bring the evidence in through his own testimony or through the testimony of other witnesses—particularly the victim—and that the evidence “would be offered to prove consent as allowed under Rule 412(b)(2)(A)(a)” and as “impeachment evidence as the alleged victim has testified to the contrary at preliminary hearing.”

At ¶ 14. 

The trial court thereafter issued the following ruling:

Absent evidence or argument from the State that the parties had never engaged in consensual anal inter-course, or that the charged sexual misconduct should be considered particularly humiliating or embarrassing value because it involved anal sex, the proffered testimony regarding prior consensual anal sex is not sufficiently relevant to be admissible under Utah R. Evid. 412(b)(2)(A).

It also ordered that

Defendant may not present evidence of prior in-stances of sexual behavior between himself and the alleged victim unless and until the State opens the door, either by presenting testimony that the parties had never engaged in consensual anal intercourse, or by arguing that anal intercourse was forced by the Defendant as a means of humiliating or degrading the alleged victim.

At ¶ 17.

On appeal, Richardson claims that the trial court‘s exclusion of the sexual history evidence under rule 412(b)(2)(A) was error and that the exclusion violated his constitutional rights. We agree with the former point and do not reach the latter.

At ¶ 18

Utah Rule of Evidence 412 broadly prohibits admission of “evidence offered to prove that a victim engaged in other sexual behavior” or “evidence offered to prove a victim‘s sexual predisposition.” UTAH R. EVID. 412(a) (2010). Even if this kind of evidence is relevant in some way to an element of the crime at issue, we have determined that its “unusual propensity to unfairly prejudice, inflame, or mislead the jury” or “to distort the jury‘s deliberative process” requires its exclusion. See UTAH R. EVID. 412 advisory committee‘s note (internal quotation marks omitted).

At ¶ 19.

This general prohibition is subject to several exceptions, however, which allow “specific instances of the accuser‘s past sexual behavior to be admitted.” State v. Tarrats, 2005 UT 50, ¶ 20 n.1, 122 P.3d 581; UTAH R. EVID. 412(b) (2010). The exception at issue in this case, rule 412(b), states that “evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered . . . by the accused to prove consent” is admissible if it “is otherwise admissible” under our evidentiary rules.

At ¶20.

The sexual history evidence proffered by Richardson falls squarely within this exception. He proposed to present “specific instances of sexual behavior” with the victim—that the two had engaged in consensual anal sex while the victim was menstruating. And with that evidence he sought to “prove consent,” by suggesting that the precise behavior he was charged with (anal sex while the victim was menstruating) was the kind of behavior he and the victim had engaged in consensually in the past. Under rule 412(b), the only remaining question is whether this evidence was “otherwise admissible” under the rules of evidence.

At ¶ 21.

The trial court relied on this caveat to exclude the evidence after the pretrial hearing, concluding that the evidence is “not sufficiently relevant to be admissible under” rule 412(b)(2)(A). Richardson contends that this was error. He insists that there is no “heightened relevancy test for evidence of specific instances of sexual activity between an alleged victim and the accused,” and asserts that the evidence should have been admitted because it was relevant under the lenient standards of rules 401 and 402.

At ¶ 22.

We agree. The trial court‘s exclusionary ruling was based on a misunderstanding of rules 401 and 402. We reverse in light of that threshold legal error, which of course is not a matter on which any deference is owing to the trial court. See Barrientos ex rel. Nelson v. Jones, 2012 UT 33, ¶ 8, 282 P.3d 50 (review of trial court‘s interpretation of the rules of evidence is for correctness). 

At ¶ 23.

The trial court‘s contrary ruling was premised on a misunderstanding of rule 401 or rule 402 or both. In excluding Richard-son‘s evidence, the trial court seemed to labor under the impression that the evidence had to be not only minimally relevant but significantly so. But our relevance rules are binary. They provide only that relevant evidence is presumptively admissible and irrelevant evidence is not. And they define relevance in binary terms: Either evidence is relevant because it makes a fact of consequence more or less probable, or it is not because it does not. 

At ¶ 27.

Rule 412(b)(2)(A) does nothing to alter the standard. It reaffirms it by incorporating by reference the admissibility principles elsewhere in our rules—by establishing that evidence of specific instances of the victim‘s past sexual conduct with the accused may be admitted to prove consent if it is “otherwise admissible” under the rules.

At ¶ 28.

The binary standard of relevance in our rules leaves no room for an evaluation of whether evidence of Richardson‘s past anal intercourse with the victim was ”sufficiently relevant.” Either it was relevant or it wasn‘t; and in this case it was for reasons not-ed above. Perhaps it could be said, as the trial court did, that Richardson‘s proffered evidence was not necessary “in this day and age” to counter the notion that anal intercourse is always nonconsensual. But that was not the only purpose of the evidence. And in any event, relevance turns on tendencies (to make a matter of consequence more or less probable) not necessities. The proffered evidence was clearly relevant in providing contextualizing detail regarding Richardson‘s past sexual relationship with the victim,6 and on that basis it was admissible under our rules.

At ¶29. 

because the court gave no indication that its exclusionary ruling was based on rule 403, we read its ruling as excluding the evidence based on its misunderstanding of our relevance rules. This was a legal error warranting no deference. Because the excluded evidence consisted of “specific instances of sexual behavior by the alleged victim” with “the accused to prove consent” that was not shown to be otherwise inadmissible under any other rule of evidence, it should have been admitted under rule 412(b)(2)(A).

At ¶ 32.

The State suggests that Richardson has lost the right to challenge the exclusion of that evidence on appeal even if it was properly admissible under rule 412(b)(2)(A). First, the State argues that Richardson “waived any rule 412 claim related to his own testimony when he affirmatively waived his right to testify.” It cites as support for this argument our caselaw stating that “[t]o preserve for appellate review a claim of improper impeachment with a prior conviction, a defendant must testify.” State v. Gentry, 747 P.2d 1032, 1036 (Utah 1987).

At ¶ 33.

We have never adopted this rule in the 412 context, and we decline to do so now. Requiring a defendant to testify before bringing an appeal makes sense when the defendant seeks to challenge evidentiary rulings that admit impeachment evidence. After all, impeachment evidence is only usable against a witness who actually testifies. And if the defendant does not testify, a reviewing court “has no way of knowing whether the [State] would have sought to impeach” that testimony with the evidence that is the subject of the contested evidentiary ruling. Luce v. United States, 469 U.S. 38, 42 (1984). Further, without knowing how the wit-ness‘s testimony helped or hindered the defense, a reviewing court cannot assess the harm impeachment of that testimony might have caused. Id. at 41–42. A defendant‘s failure to testify causes no such difficulties in the rule 412 context—as 412 evidence, unlike impeachment evidence, is not usable only against a witness who actually testifies.

At ¶ 34.