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State v. Gasper

Court of Appeals of Utah

August 23, 2018

State of Utah, Appellee,
Aaron Gasper, Appellant.

          Third District Court, Salt Lake Department The Honorable Katie Bernards-Goodman No. 141913141

          Herschel Bullen, Attorney for Appellant.

          Sean D. Reyes, Jeanne B. Inouye and Jeffrey D. Mann, Attorneys for Appellee.

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



         ¶1 Defendant Aaron Gasper hosted a house party in the summer of 2014. Following the party, a teenage guest accused Gasper of twice raping her during the course of the evening. The State charged Gasper with two counts of rape and sought to admit evidence under rule 404(b) of the Utah Rules of Evidence of a previous instance of alleged sexual assault involving Gasper. The district court admitted the evidence for the noncharacter purpose of intent and under the doctrine of chances. Gasper later pled guilty to second degree forcible sexual abuse, preserving his right to appeal the district court's ruling admitting the disputed bad act evidence. The district court subsequently sentenced Gasper to an indeterminate prison term of one-to-fifteen years, rejecting his request to impose probation instead of prison. He appeals and we affirm.


         Victim Incident

         ¶2 In August 2014, Victim attended a friend's birthday party that Gasper hosted at his home. Victim testified that she let the party guests know that she had a boyfriend and was not romantically interested in anyone else. She also tried to limit her alcohol consumption-she had "two or three strawberry-flavored ales." At the party, Victim met Gasper for the first time.

         ¶3 As the party progressed, Gasper repeatedly attempted to convince Victim to drink shots of alcohol, which she declined until later in the night. When she finally did drink one of the shots Gasper offered her, Victim immediately became nauseated and tired. Gasper, a licensed massage therapist, then offered to give her a massage. Victim allowed Gasper to give her a massage with the caution that he "[could not] touch anything that would normally be covered by [her] underwear." She then lay on the floor and fell asleep as he massaged her back.

         ¶4 The next thing Victim remembered was being wakened in the dark and moved to a couch. She vomited while she was on the couch, and someone-she believed it was Gasper-gave her a clean T-shirt to wear. She again fell asleep and awoke the next morning only to realize that Gasper "was currently having sex with [her]." Somehow, she had been moved from the couch to a bedroom, where she awoke to a "burning and tearing sensation in . . . the vagina and labia"-with Gasper on top of her.

         ¶5 Victim immediately put on her clothes and went home. Upon arriving home, she texted a few friends, including her boyfriend, about what had happened. One of her friends took her to the police station a few hours later. Afterward, she went to the emergency room, where medical personnel collected evidence for a rape kit. She later talked to a police detective about the incident, stating that she did not give Gasper any indication she was interested in him and, more importantly, she did not consent to having sexual intercourse with him.

          ¶6 Gasper, when later interviewed, admitted to the police that he had sexual intercourse with Victim when they were sitting on the couch together while the party was winding down. When asked about being in the bedroom with Victim the next morning, he said that he wanted to lie with her in the bed and that she needed assistance.

         The Alleged Previous Incident

         ¶7 Prior to trial, the State moved to admit bad act evidence against Gasper. During the evidentiary hearing on the State's motion, Witness gave an account of her alleged experience with Gasper in January 2013. At that time, she and her brother, (Brother) were living together. Witness testified that around 10 p.m., Brother brought a couple of friends home. One of the friends was Gasper.

         ¶8 This was the first time Witness had met him. Witness also testified that despite her protests, Gasper kept inappropriately touching her, including her buttocks. She told Gasper that she had a boyfriend and was not interested in him, to which Gasper responded, "Oh, I do this all the time . . . I'll make you feel better." Witness testified that she "knew [Gasper] was a massage therapist . . . and that was the indication that he gave me . . . [that he could] make my ...

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