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State v. Yalowski

Court of Appeals of Utah

September 21, 2017

State of Utah, Appellee,
Russell Edward Yalowski, Appellant.

         Third District Court, Salt Lake Department The Honorable Robin W. Reese The Honorable Paul B. Parker No. 141903380

          Alexandra S. McCallum, Attorney for Appellant.

          Sean D. Reyes, Laura B. Dupaix, and Jeanne B. Inouye, Attorneys for Appellee.

          Judge David N. Mortensen authored this Opinion, in which Judges Michele M. Christiansen and Kate A. Toomey concurred.

          MORTENSEN, Judge.

         ¶1 Two loud bangs announced an unidentified intruder's arrival at Victim's house. The short-lived mystery was solved when Victim drew back the shower curtain to step out of her bathtub. There stood her ex-boyfriend-Defendant Russell Edward Yalowski. While urinating on the walls of the bathroom, Defendant yelled that he had "about eight N words out[side] waiting to shoot up the house." Defendant was charged and a jury convicted him of burglary, a second degree felony; threat of violence, a class B misdemeanor; and criminal mischief, a class B misdemeanor. See Utah Code Ann. §§ 76-6-202, 76-5-107, 76-6-106(2)(c) (LexisNexis 2012). Defendant appeals, and we affirm.


         ¶2 Defendant and Victim began dating in December 2012 and broke up one year later. On December 20, 2013, after the breakup, Victim was at home with her children, her cousin, and her cousin's children. Victim went upstairs to bathe, but, after a few minutes in the bathtub, she heard two loud bangs. When Victim opened the shower curtain, she saw Defendant standing in the bathroom. Defendant threatened her, saying he "had people outside" who were "waiting to shoot up the house, " before "[h]e started urinating all over [her] walls near the shower."[1]

         ¶3 Victim dressed as she pleaded with Defendant "to calm down." As Defendant continued yelling, Victim made her way to her bedroom and dialed 911, setting the phone down because she felt she "couldn't talk" and "couldn't say anything because he was still standing there in the hallway." When Victim "got nervous that he might know that the phone was sitting off the hook, " she "turned it off."

         ¶4 Eventually, Victim convinced Defendant to walk outside with her. Defendant continued threatening her, telling her "he was going to take [her] somewhere and beat [her] up and leave [her] for dead where nobody could find [her]." While the two were outside, police arrived and arrested Defendant. Officers found keys to Victim's house and car in Defendant's pocket, which Victim said she had never given him. Police took Defendant's shoes into evidence, and a forensic technician photographed shoe impressions in the snow around Victim's house, damage to the back door of the house, and damage to the bathroom door.

         ¶5 Defendant was charged with lewdness, see supra ¶ 2 note 1, burglary of a dwelling, threat of violence, and criminal mischief. Before trial began, Defendant informed the trial court that he and the State had stipulated "that no prior acts of violence or abuse will be admitted." He also requested that the court "exclude any testimony that the shoe impressions found at [Victim's] home matched [Defendant's] footwear." He based his objection on rules 701 and 702 of the Utah Rules of Evidence, which differentiate between lay and expert opinion testimony. See Utah R. Evid. 701, 702. The court reserved ruling, indicating it would "have to rule on that when [it] hear[d] what the witness [said]." Finally, Defendant requested permission to cross-examine Victim about three prior instances of her dishonesty-a plea in abeyance for theft by deception, using someone else's identification to enter the jail to visit Defendant, and an arrest for theft by deception and giving a false name to a police officer. The court said it would allow Defendant to question Victim about her use of someone else's identification but denied Defendant's request to bring up the plea in abeyance or the arrest.

         ¶6 During trial, Victim testified that she and Defendant had broken up because Defendant was "constantly fighting with [her]. Getting violent." Defendant objected, arguing that the testimony violated the stipulation not to introduce evidence regarding his prior acts of violence. The court agreed and directed the prosecutor to speak to the witness, instructing her not to mention Defendant's past behavior. Defendant also moved for a mistrial, but the court explained, "I'm going to deny the motion, Counsel. I agree that it shouldn't have been brought up, but I don't see that there's significant harm. There was no description of any violent events. It was just a brief mention."

         ¶7 The State later called the forensic technician to testify. He explained that when he arrived at Victim's home, he observed "some shoe impressions on the steps leading up to the back door" and "a small, faint shoe impression on the back door itself." He went on to testify, without further objection from Defendant, that the tread pattern shown on the pictures of the shoe impressions appeared to be a "similar pattern, similar block. Identical" to the pattern on Defendant's shoes.

         ¶8 The jury also heard testimony from Victim's cousin and responding police officers. Victim's cousin testified that she heard two loud bangs at Victim's house before finding out that Defendant was upstairs. Because she "was kind of afraid at first, " she "tried to keep [the children] all in the same space." She and the children were "in the closet . . . hiding, because [she] heard [Victim and Defendant] arguing upstairs." After she felt it was safe to come out of the closet, she walked upstairs. She first saw that the frame of the back door was broken, and then she "noticed that the bathroom door was also broken." At trial, the cousin indicated that the damage to the back door and bathroom door had not previously been there.

         ¶9 The first officer (the backup officer) testified that he responded to Victim's house after multiple 911 hangups. He was a "backup officer, " meaning his job was to "[m]ostly kind of stay out of the investigation. Make sure [the investigating officer was] safe. Make sure nothing happens to him or nobody resists him, or while he's conducting the investigation no one interferes with that." After Defendant was placed in a police car, the backup officer entered Victim's house and spoke with her. Victim showed him the damage inside the house and filled out a witness statement. The backup officer walked around the house, where he found one set of fresh footprints in the snow leading to the back door. He then "pointed out several things that needed to be photographed" to the forensic technician.

         ¶10 At trial, the backup officer took time to show and explain the resulting photographs to the jury. He pointed out characteristics of the shoeprints:

So right here there's flat, round, circular. And then around it several small circle lines. Right here is a void in the shoe, so an indent. On the top of it closest to the toes is somewhat curved. And in the back, right in here, there's another round impression, with a similar small one on the side.

         He went on to explain that the details of the shoeprints were "[s]imilar to marks that we can see on the . . . door" and similar to the pattern on Defendant's shoes. He later reiterated that there were "white marks" on the door "that are similar to the ones in size and shape that we saw on the shoe print impressions. . . . [i]n the snow."

         ¶11 A second officer testified that he took Defendant's shoes into evidence. He also recounted his investigation, during which he saw Victim's bathroom door: "It looked like it had been forced open. The door jamb was broken, the latch plate was off." And the back door was "[j]ust basically kicked in."

         ¶12 The jury convicted Defendant of burglary, threat of violence, and criminal mischief, but it found him not guilty of lewdness. Defendant now appeals.


         ¶13 Defendant raises three issues for our review, and he alternatively contends that the three issues, taken together, warrant reversal under the cumulative error doctrine. First, he challenges the trial court's denial of his motion for a mistrial when Victim testified, contrary ...

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