District Court, Logan Department The Honorable Brian G.
Cannell No. 141100266.
M. Perry, Attorney for Appellant
D. Reyes and Jeanne B. Inouye, Attorneys for Appellee
Stephen L. Roth authored this Opinion, in which Judge Gregory
K. Orme concurred. Judge J. Frederic Voros Jr. concurred,
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.
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.
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
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
Still interacting by phone and apparently having reconsidered
his earlier beakup 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?"
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."
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.
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.
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.
AND STANDARDS OF REVIEW
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).
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).
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 ...