District Court, Nephi Department The Honorable Jennifer A.
Brown No. 141600106
K. Phelps, Attorney for Appellant
V. Peters and AnnMarie T. Howard, Attorneys for Appellee.
David N. Mortensen authored this Opinion, in which Judges
Michele M. Christiansen and Diana Hagen concurred.
Defendant Lamont Stephen Von Niederhausern allegedly sexually
assaulted his adult daughter, Victim, on four separate
occasions. The State charged Defendant with two of the four
alleged incidents. At trial, the State moved to introduce
evidence of the other two incidents under rule 404(b). The
trial court allowed the evidence, despite Defendant's
objection, and issued a limiting instruction. The trial court
also employed-without objection-a jury instruction based on
statutorily undefined terms which the court defined for the
purpose of the instruction by using dictionaries. The jury
convicted Defendant as charged. Defendant timely appeals,
alleging that the trial court abused its discretion by
admitting the character evidence and erred in employing
dictionary definitions in the additional jury instruction. We
Incident One occurred in December 2011, when Defendant
visited Victim's home. During Defendant's visit,
Victim fell asleep on the couch in her living room. She awoke
to someone kissing her neck in a "very sexual . . .
nature" and "assumed it was [her] husband"
because it was open mouthed and his tongue was on her neck.
He had his left hand pressing on her right rib cage, which
was "below [her] breast but . . . touching [her]
bra[.]" Upon seeing that it was actually her father
touching her, Victim froze in place, completely in shock.
Soon thereafter, Victim's husband (Husband) entered the
room, heard "weird kissing noises," and saw
Defendant leaning over Victim with his face down. Husband
yelled, "Hey!" and Defendant ran out the door of
the house, quickly got into his car, and drove away.
Afterward, Defendant stayed away from Victim and her
immediate family for approximately eight months.
Incident Two (Count One) occurred in October 2012. Without
permission or invitation, Defendant visited Victim's new
home, where he spent the night. The next morning, Defendant,
Victim, and her children were at the house after Husband had
gone to work. Victim heard Defendant speak in a "very
low, husky voice, and ask her [daughter] if she had her big
girl panties on." Victim's eight-year-old daughter
was visibly shocked. Victim gave him a "dirty
look," and he stopped talking to her daughter in that
Defendant then got on the computer, purportedly to look for a
job, but instead pulled "multiple tabs
up with pornographic images and violent animal
documentaries." Shortly thereafter, Defendant went up to
a bedroom to "take a nap." But instead of sleeping,
Defendant began to masturbate. Victim caught him and ordered
him to leave the house, but he ignored her request. Later,
Defendant approached Victim's six-year-old son and asked
"if he had his big boy briefs on" in a "low,
husky voice." Victim once again ordered Defendant to
leave, and she took her son out of the room.
Defendant finally acquiesced to the repeated requests for him
to leave and slowly took his belongings out to the car.
However, once he had packed the final item, he snuck back
into the house. Victim became aware that he had returned only
after Defendant suddenly pressed against her from behind with
his hands on her breasts, thrusting "with his erect
penis pushed against her buttocks," kissing the right
side of her neck with an open mouth while using his tongue,
and grinding against her several times.
While Defendant sexually assaulted her, Victim froze until
she heard her children, who were still in the house. Upon
hearing the children, Defendant "whirled around, ran out
the open door, jumped into his car," and quickly drove
away. Victim began crying and called Husband to relay what
had happened. Thereafter, Victim and her family did not see
or hear from Defendant for over a year.
Incident Three (Count Two) occurred during a family event on
a Saturday in December 2013. Defendant was invited with the
understanding that he was to leave directly afterward.
However, because it began to snow, Victim and Husband allowed
Defendant to stay at their home over the weekend. On Monday
morning, after Husband went to work, Victim sat down at her
computer with her back to Defendant. Suddenly, Defendant
approached Victim, reached around the chair, put his hands on
Victim's breasts, and kissed her neck with an open mouth
using his tongue. Victim told him to stop several times, but
he became more aggressive. As the abuse escalated, Victim
burst out of the chair and went to the kitchen
"fuming." She told Defendant that she was going to
call Husband and that he needed to leave immediately.
A few days after Incident Three, Victim and her family
visited her mother's home to Skype with her sister. When
Defendant showed up at the house, Victim left the room that
Defendant was in and went into the kitchen. While she was
alone in the kitchen, Defendant swiftly approached her and
grabbed her from behind. He touched her lower pelvis and
breasts and began thrusting against her and kissing her neck.
Becoming "alarmed that he was bold enough to do this in
front of [the] family," she told him to stop, but he
became more assertive. He did not stop and when she tried to
move away, he grabbed her arms. He started speaking in a
"seductive kind of way" to her and she said,
"Please let go. Let go of me." He ignored her, so
she grabbed a cup of water and dumped it on him. Husband
heard her say, "Stop," and, "Let go," and
he also saw that Defendant had grabbed ahold of Victim's
arm as she attempted to pull away. Additionally, Husband
witnessed Victim toss water in Defendant's face. At the
same moment that the incident began to de-escalate,
Victim's sister called the family on Skype, so ...