District Court, Salt Lake Department The Honorable Robin W.
Reese No. 111905240
Fujino and Marshall Thompson, Attorneys for Appellant
D. Reyes and John J. Nielsen, Attorneys for Appellee
Gregory K. Orme authored this Opinion, in which Judges
Michele M. Christiansen and Ryan M. Harris concurred.
Appellant Ozwald Balfour (Defendant) was convicted of the
forcible sodomy of a minor. 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.
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
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.
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.
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.
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.
Other Bad Acts
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.
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.
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,
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.
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.
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. 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.
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