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State v. Balfour

Court of Appeals of Utah

April 26, 2018

State of Utah, Appellee,
v.
Ozwald Balfour, Appellant.

          Third District Court, Salt Lake Department The Honorable Robin W. Reese No. 111905240

          Ronald Fujino and Marshall Thompson, Attorneys for Appellant

          Sean D. Reyes and John J. Nielsen, Attorneys for Appellee

          Judge Gregory K. Orme authored this Opinion, in which Judges Michele M. Christiansen and Ryan M. Harris concurred.

          ORME, JUDGE:

         ¶1 Appellant Ozwald Balfour (Defendant) was convicted of the forcible sodomy of a minor.[1] He seeks a new trial, arguing that he was denied the effective assistance of counsel, that the trial court improperly admitted evidence of other bad acts against him, and that the court violated his constitutional due process rights at trial by excluding his witnesses. We affirm.

         BACKGROUND

         The Victim

         ¶2 In early 2005, a seventeen-year-old girl (Victim) was making her way to a bus stop when Defendant approached her and exclaimed, "You're perfect." After explaining that he represented a talent agency, he asked whether she might be interested in a modeling career. Victim was thrilled by the prospect. Upon Defendant's request, she immediately agreed to enter his car and accompany him to his office.

         ¶3 Once they arrived, Defendant sat her down and informed her that there are "things that models . . . and famous people have to do to get where they are today." For instance, he told her that she would need to have her picture taken, "with and without clothing." When Victim expressed concern that her parents might not approve, he urged her not to worry, saying he would smooth things over with them. He then asked her to return to his office in two days for her first photo shoot.

         ¶4 When Victim returned two days later, Defendant introduced her to a photographer, who proceeded to take "some face poses." But after a short time, the photographer finished shooting, packed up, and left Victim alone with Defendant. Defendant then informed Victim that "he needed to take his own pictures" of her. Growing "nervous, " she told Defendant that she needed to leave. Defendant insisted that she stay, telling her that "it was okay" and that there were "things" that aspiring models "need to do to get to the places they want to get to." He then "pulled out some pictures of a young girl" who he claimed had made it as a model with his help, and who he said was now "in Paris." Victim acquiesced.

         ¶5 Defendant then laid out a beach towel, turned on music, and retrieved some baby oil. Although he had wanted her "all the way undressed, " Victim refused to remove her bra and underwear. Defendant began rubbing the oil on Victim's legs, beginning near her ankles but inching gradually toward her pelvis. Feeling "nervous and disgusted, " Victim again stated that she wished to leave, but Defendant "kept rubbing and . . . telling [her] that it's going to be okay." After moving his hands "closer and closer" to Victim's genitals, he suddenly "pulled back [her] underwear" and placed his tongue on her vagina.

         ¶6 Victim immediately "jumped up, " "pushed [Defendant] off" of her, and demanded that she be allowed to leave. Defendant attempted to calm her, reiterating that "there's things you got to do" to make it as a model, but Victim remained firm. Seeing that she would go no further, he relented, and Victim headed for the door. As she did, Defendant told her that there was no "need to talk to anybody" about their meeting or to "tell anyone" what he had done.

         Defendant's Other Bad Acts

         ¶7 Lamentably, Victim's is not the only traumatic story relevant to the proceedings below. Three other women also appeared at Defendant's trial, and each testified that, between late January and early February of 2005, Defendant subjected her to some form of abuse. Because Defendant challenges the propriety of the trial court's decision to allow testimony from these three witnesses, we must explain the substance of their testimony in some detail.

         ¶8 R.G. was nineteen years old when Defendant stopped her in a grocery store aisle and began asking her questions about herself. She had observed Defendant "just kind of wandering" the aisles, noting that he carried neither a grocery basket nor any items from the store shelves. Then, turning a corner, she found that he was facing her "head on." Defendant began peppering her with questions about her private life, such as whether she was in school and what activities she enjoyed. Upon learning she was involved in a youth-mentoring program, Defendant informed her that he was scouting talent for a "kids program that was on TV" and asked whether she would be interested in working with him. Excited at the thought of being on television, R.G. answered that she would be interested, whereupon Defendant insisted that they proceed directly to his office.

         ¶9 Upon arriving at Defendant's office, his receptionist handed R.G. an application form, and as she sat down to complete it, she observed "some posters on the wall of movies." Soon after she had sat down to fill out her form, Defendant interrupted her and asked that she join him in his office. Immediately after closing the door, Defendant began making "inappropriate, strange comments, " and he asked R.G. to take off her jacket. When she refused, he grabbed onto her hips, pulled her close to him, and then lifted up her top to expose her bra. R.G. left right away, "in shock."

         ¶10 On another occasion, Defendant invited R.O. and M.L. to his office for an interview. When they arrived, Defendant began by asking R.O. to follow him into a back room of the office. Once they were alone, Defendant asked R.O. to show him "how [she] would act in a love scene." When she refused and stated she was "happily married, " Defendant "grabbed [her] breasts." R.O. quickly pushed him away and, after struggling with the door for a moment, was able to leave the room.

         ¶11 M.L. witnessed R.O. emerge from the back room and head "right out the door" without saying a word. Defendant appeared a few moments later and asked M.L. to follow him back into the room. Once the door was shut, and apparently locked, Defendant turned to M.L. and, without "say[ing] anything, " began "lifting [her] shirt and grabbing [her] breasts." He told her that she "had two minutes to take him" or "prove to him, " and, taking hold of M.L.'s arm, he "put [her hand] on his crotch." Screaming at Defendant to "knock it off, " M.L. then twisted away from Defendant and began "banging on the door." At that point, Defendant opened the door and allowed her to leave.

         The Proceedings Below

         ¶12 R.G., R.O., and M.L. immediately reported their encounters with Defendant to the police and, within months, the State charged Defendant with multiple counts of forcible sexual abuse. Victim, however, did not report Defendant's conduct until nearly two years later, in 2007. The prosecutor then lost contact with her, apparently because she changed residences several times. Finally, in 2010, a detective managed to locate Victim, and a few months later, the State charged Defendant with forcible sodomy.[2] In the meantime, the prosecution against Defendant for his conduct toward R.G., R.O., and M.L. ended in a plea bargain, with Defendant pleading no contest to three counts of sexual battery. He was placed on probation.

         ¶13 Soon after the State filed its forcible sodomy charge concerning Victim, the trial court appointed an attorney (Attorney A) to serve as defense counsel. Upon his appointment, Attorney A moved to dismiss the charge against Victim because of the prosecutor's alleged breach of Defendant's plea agreement in the earlier case. The State, he argued, had agreed not to bring the instant charge in exchange for Defendant's no-contest pleas in the previous prosecution. The court denied the motion, observing that no such arrangement was mentioned in either the written plea agreement or the plea colloquy transcript. Defendant refused to accept the court's decision, and he and ...


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