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State v. Thornton

Supreme Court of Utah

February 21, 2017

State of Utah, Appellant,
Robert Damien Thornton, Appellee.

         On Certiorari to the Utah Court of Appeals Third District, Salt Lake The Honorable Katie Bernards-Goodman No. 111900297

          Sean D. Reyes, Att'y Gen., Karen A. Klucznik, Asst. Att'y Gen., Salt Lake City, for appellant

          Debra M. Nelson, Joan C. Watt, Salt Lake City, for appellee

          Associate Chief Justice Lee authored the opinion of the Court, in which Chief Justice Durrant, Justice Himonas, and Judge Bean joined.

          Having recused himself, Justice Pearce does not participate herein; District Judge Joseph M. Bean sat.



         ¶1 Robert Damien Thornton was convicted of multiple counts of rape, sodomy, and sexual abuse of a twelve-year-old victim, B.Z. On appeal Thornton challenged a pair of evidentiary rulings made by the district court. He argued that the district court erred in admitting evidence of his past misconduct under Utah Rule of Evidence 404(b) and in precluding him from questioning the victim about her sexual history. On the latter point, Thornton argued that he was entitled to present evidence of the victim's sexual experience under Utah Rule of Evidence 412 and the Sixth Amendment of the U.S. Constitution.

         ¶2 The court of appeals reversed Thornton's conviction. State v. Thornton, 2014 UT App 265, 339 P.3d 112. It found error in the admission of evidence of Thornton's past misconduct-of his alleged sale of drugs to B.Z.'s mother and encouragement of B.Z's mother's prostitution. Specifically, the court of appeals held that the district court erred in failing to perform a "scrupulous examination" of the character evidence introduced by the prosecution. Id. ¶ 38. For years our cases have used this phrase in describing the district court's role in assessing character evidence under rule 404(b). See, e.g., State v. Decorso, 1999 UT 57, ¶ 18, 993 P.2d 837; State v. Lucero, 2014 UT 15, ¶ 37, 328 P.3d 841. The court of appeals took that requirement to encompass a duty to assess the drug and prostitution evidence separately. Thornton, 2014 UT App 265, ¶ 40. And because the district court lumped the two sub-classes of character evidence together in its analysis under rule 404(b), the court of appeals found error. It also deemed the error prejudicial.

         ¶3 We reverse the court of appeals and reinstate the judgment of conviction. We find no error in the district court's evidentiary ruling because we affirm its decision admitting evidence of Thornton's alleged involvement in the drug transactions and prostitution at issue in the case. And we emphasize that the appellate review of evidentiary rulings is on the decision made at trial, not the process by which that decision is reached. In so concluding, however, we acknowledge that our prior decisions leave room for the approach taken by the court of appeals. We accordingly repudiate the language in our prior opinions that speaks of "scrupulous examination" of character evidence under rule 404(b)-finding that such language is more confusing than helpful.

         ¶4 We also affirm the court of appeals' decision affirming the district court's denial of Thornton's bid to present evidence of the victim's prior sexual history under rule 412 and the Sixth Amendment. We recognize that the Confrontation Clause sometimes entitles a defendant to question a witness about an essential element of his defense. But the defendant failed to lay a foundation for any such argument here. On this record, Thornton cannot show that his interrogation of the victim as to her sexual experience was essential to a foundational element of his defense. And we accordingly conclude that there was no error in the district court's refusal to allow him to present this evidence to the jury.

         I. BACKGROUND

         A. Facts and Trial Court Proceedings

         ¶5 Twelve-year-old B.Z. lived with her mother and stepfather in a two-bedroom apartment.[1] After B.Z.'s stepfather was incarcerated her mother began renting out one of the rooms. Thornton became one of the tenants. He moved into the apartment with his girlfriend. The two of them stayed in B.Z.'s bedroom. B.Z. slept in the front room most of the time but would occasionally sleep in her bedroom.

         ¶6 B.Z.'s mother had long suffered from serious substance-abuse problems. She was addicted to methadone, which she took to deal with chronic pain. To treat that addiction, she went to a methadone clinic each morning.

         ¶7 Thornton allegedly was a drug dealer. For a time he agreed to provide B.Z.'s mother with crack cocaine in lieu of rent. After a few months, however, Thornton told B.Z.'s mother that she would have to begin paying for the drugs he was giving her. He also allegedly encouraged her to engage in prostitution to make money to pay for the drugs. She did so. She brought clients home and had sex with them in the apartment. B.Z. was aware that her mother was a prostitute and was having sex with various men in the apartment.

         ¶8 As her mother's addiction intensified, B.Z. was increasingly neglected. She stopped attending school even though she had once been earning "A" grades. And she was often left unfed and without much attention from her mother.

         ¶9 Thornton's girlfriend was arrested about a month after she and Thornton moved into the household. Thornton began flirting with B.Z. shortly thereafter. He began to touch her in sexually suggestive ways, such as patting her on the buttocks. Eventually, one morning while B.Z.'s mother was at the methadone clinic, Thornton dragged B.Z. into the bedroom and forced her to have sex with him.

         ¶10 After the first rape, Thornton continued to force himself upon B.Z. He did so each morning while her mother was at the clinic. While at first she fought him off, she eventually surrendered. And she began to develop what she perceived as romantic feelings for him-feelings she expressed in letters. Thornton also gave B.Z. a Christmas present and showered her with affection.

         ¶11 At first B.Z. did not say anything to her mother about the rape. She felt that her mother was too addicted to drugs to care and too dependent on Thornton to do anything about it. B.Z. also noted that her relationship with her mother had deteriorated as Thornton became increasingly abrasive and hostile toward the mother. Thornton also threatened B.Z. with violence if she revealed what he had done.

         ¶12 After a couple of months B.Z. finally told her mother that Thornton had been having sex with her. She also declared that she believed she was pregnant with Thornton's child. The mother did not call the police herself because she had an outstanding warrant against her. But she told her neighbor about the rape. The neighbor called the police, who came and arrested both Thornton and B.Z.'s mother.

         ¶13 B.Z. was taken to a group home and asked about the sexual abuse. At first she denied the abuse. But in a subsequent interview she told the detectives that Thornton had repeatedly raped her.

         ¶14 By the time B.Z. was examined by medical staff, it was too late to perform a rape test. A pregnancy test revealed that she was not pregnant. And the medical professionals found no physical evidence of rape. Yet B.Z. told investigators that after sex Thornton would wipe himself off on a brown sweater in their room. And forensic testing found evidence of Thornton's semen on the sweater.

         ¶15 Thornton was charged with multiple counts of rape of a child, sodomy of a child, and aggravated sexual abuse of a child. He was tried three times. The first trial ended in a mistrial. The second resulted in a hung jury. On the third trial the jury finally reached a verdict. It found Thornton guilty on all counts.[2]

         ¶16 At each of the three trials two evidentiary disputes came to the fore. The first involved the State's attempt to introduce evidence that Thornton had supplied B.Z.'s mother with drugs and had encouraged her involvement in prostitution. At the first trial the parties stipulated to exclude this evidence. But a mistrial ensued when the mother volunteered information about Thornton's role in her prostitution-in response to (permitted) questions about her time as a prostitute. At the second trial the parties entered into the same stipulation. And this time the stipulation was honored-the evidence was not admitted. The result, as noted, was a hung jury.

         ¶17 Before the third trial, the State moved for admission of this evidence under rule 404(b). The State's basis for admission was that the evidence was relevant to a non-character purpose-to helping the jury understand the circumstances that gave Thornton the opportunity to abuse B.Z., and that discouraged her from coming forward sooner.

         ¶18 The district court granted the State's motion. It allowed the evidence to be admitted with a limiting instruction. The instruction indicated that the evidence was to be considered only "for the limited purpose of determining Defendant's position of power or trust in the household or in understanding the victim's behavior." Jury Instruction No. 28. It also stated that the evidence could not be used to establish Thornton's character or propensity to commit crime. Id.

         ¶19 Thus, the district court concluded that the evidence of Thornton's drug dealing and involvement in B.Z.'s mother's prostitution was essential to provide a relevant narrative. It therefore held that the evidence served a legitimate non-character purpose under rule 404(b). And it also determined that the evidence was relevant and not unduly prejudicial.

         ¶20 The second category of disputed evidence involved the sexual history of the victim. Around the time of Thornton's sexual acts against B.Z., she was also engaged in a consensual sexual relationship with a fourteen-year-old friend of hers. Thornton sought to question B.Z. about this relationship in order to rebut the assumption that as a twelve-year-old she would be sexually innocent.

         ¶21 At the start of the first trial, the judge held that B.Z. could not be asked about her sexual history. In so ruling the judge concluded that this evidence was not essential to the defense because "Defendant had several other means by which he can establish that B.Z. had sexual knowledge well beyond that of a traditional twelve-year-old." Ruling and Order at 6 (Sept. 14, 2011). With this in mind, the court concluded that introduction of evidence of B.Z.'s sexual history "would do little more than damage [B.Z.'s] integrity among a jury[, ] which is the very problem Rule 412 seeks to address." Id. at 7.

         ¶22 B.Z. presented detailed testimony about the rape at trial. She testified that the sex "hurt really bad" and felt like she "was being ripped open." Trial Transcript at 28 (Sept. 25, 2012). She remembered that it had "stung really bad" and that she had "white gooey stuff" in her urine. Id. After B.Z. testified, the defense asked the court to reconsider its exclusion of the rule 412 evidence. But the trial judge denied that motion.

         ¶23 This played out similarly in the second and third trials. Thornton renewed his motion for reconsideration and the trial judge again denied it. And B.Z. testified at each trial along the same lines.

         ¶24 When cross-examining B.Z., the defense asked her about the fact that her mother was a prostitute and asked how she knew about it. But the defense did not ask B.Z. what she might have learned from her mother's descriptions of or involvement in prostitution. Nor did counsel ask the judge to conduct an in camera review to show that B.Z.'s familiarity with sex could not have come from her interactions with her mother or her knowledge of her mother's prostitution. And Thornton did not contend-in closing argument or otherwise-that B.Z. was able to describe sex acts because of knowledge gained from her mother.

         ¶25 In closing argument the State characterized B.Z. as a child in a couple of contexts. It suggested that her youth explained early inconsistencies in her statements to the police or her infatuated love letters. And it asserted that someone of her age would not have known about the semen on the sweater had she not been there to witness it. But the prosecution did not claim that B.Z.'s youth confirmed the truthfulness of her descriptions of sexual sensations. It did not assert, in other words, that a child of her age could not have described sex in the way she did unless she had been raped.

         ¶26 The jury found Thornton guilty on all counts in the third ...

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