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State v. Beverly

Supreme Court of Utah

November 29, 2018

State of Utah, Appellee,
Mark Anthony Beverly, Appellant.

          On Direct Appeal Third District, Salt Lake The Honorable Mark S. Kouris No. 141909114

          Sean D. Reyes, Att'y Gen., Jeffrey D. Mann, Asst. Solic. Gen., Salt Lake City, for appellee

          Nathalie S. Skibine, Salt Lake City, for appellant

          Chief Justice Durrant authored the opinion of the Court, in which Associate Chief Justice Lee, Justice Himonas, Justice Pearce, and Justice Petersen joined.


          Durrant Chief Justice


         ¶1 Mark Anthony Beverly was convicted of rape and forcible sexual assault of his wife. He claims the two had consensual sex.

         ¶2 After a period of separation, Mr. Beverly moved into his wife's home, where he slept on her couch, because he had nowhere else to go. One night he became enraged, entered his wife's room, slammed the door, and demanded that she have sex with him. She refused his demands multiple times and cried during the incident. Eventually, she followed his instructions and engaged in sexual conduct. Immediately afterward, she notified the police that she had been raped and Mr. Beverly was arrested.

         ¶3 He now appeals his conviction on several grounds. First, he claims the trial judge violated his constitutional rights by commenting on the outcome of the O.J. Simpson trial to potential jury members during voir dire. Second, he claims the trial court abused its discretion in excluding evidence suggesting the possibility that his wife had sex with another man before the alleged rape occurred. Third, he claims the trial court abused its discretion when it admitted evidence about Mr. Beverly's domestic violence in the past, and when it precluded him from asking about specific details of those instances on cross-examination. Finally, he argues that all the errors in this case cumulatively warrant reversal.

         ¶4 We disagree with each of his contentions. Mr. Beverly's constitutional challenge to the trial judge's comments during jury selection fails because it was not preserved below and he does not meet an exception to preservation. Additionally, the trial court did not abuse its discretion in excluding evidence about a possible second sexual partner, because it was offered for the incorrect purpose of impeaching the wife and would have been highly prejudicial. Furthermore, the trial court's decision to admit instances of Mr. Beverly's domestic violence against his wife was correct because it was offered for a plausible, non-propensity purpose and the court did not abuse its discretion in limiting the scope of cross-examination on these incidents. And lastly, the cumulative error doctrine does not apply, because only a single error occurred below. Accordingly, we affirm.

         Background [1]

         ¶5 In August 2014, Mr. Beverly had been married to his wife, S.B., for over twenty years. They had two children together, both of whom lived with S.B. Mr. Beverly and S.B.'s marriage was "very volatile." The two experienced periods of separation, and Mr. Beverly had been kicked out of the house on a few occasions. A few months before the incident, S.B. allowed Mr. Beverly to move back in and sleep on her couch because he had nowhere else to live. At that time, the two had not had a physical relationship for about two years.

         ¶6 On August 12, 2014, Mr. Beverly returned to S.B.'s house after being gone for several days. He was "very angry" and accused S.B. of cheating on him. He called her a "whore" and a "bitch" and yelled at her for sleeping away from him in a different room. S.B. then left for her work, where Mr. Beverly showed up a few minutes later and again began accusing her of cheating on him. He demanded to see S.B.'s emails, which she showed to him, and he eventually left.

         ¶7 That evening, S.B. returned home to find Mr. Beverly even angrier. She told her two sons to go to bed because "Dad's on one." She then retired to her own room. When she was almost asleep, Mr. Beverly came into her room, slammed the door, and said, "you're having sex with me tonight." She replied, "no, I'm not."

         ¶8 One of the sons, having heard the door slam, came out of his room to make sure Mr. Beverly wasn't hurting S.B. The son listened outside S.B.'s door for a few seconds and returned to his room.

         ¶9 Mr. Beverly then took off his clothes and instructed S.B. to take hers off as well. She refused and began to cry. He then told S.B. to touch him and tell him she missed him and loved him. She eventually followed his instructions. He proceeded to touch her breasts and vagina with his hands while she cried quietly. He also got on top of S.B. and penetrated her vagina with his penis. She continued to cry. During this incident, he told her to "shut up, bitch," but then would say things like, "I miss you, I love you, tell me you love me." At one point he also said, "I should tie you up and let a bunch of . . . mother F'ers fuck you."

         ¶10 Mr. Beverly ejaculated inside of S.B.'s vagina before climbing off of her. Not wanting to anger Mr. Beverly further, S.B. waited until he fell asleep and then called 9-1-1 to report that she had been raped. Law enforcement arrived and arrested Mr. Beverly. After his arrest, S.B. was interviewed by an officer from the Unified Police Department. She also underwent a sexual assault examination by a trained nurse.

         ¶11 Shortly after his arrest, Mr. Beverly was also interviewed by an officer. During the interview, Mr. Beverly stated that he had "penetrated [S.B.'s] vagina with his penis, [and] that he touched her breasts and her vagina with his hand." He "acknowledged that [S.B.] had said 'no' . . . more than on[c]e," but that he had asked permission to kiss her, touch her legs, and rub her back and she said "yes." He also said that during sex "she was crying, and it was upsetting him, because at one point they used to be so close," and that "he would yell, 'why-why are you crying? Why are you crying?'" He then explained to the officer that he had told S.B. that "your pussy is mine and I'm going to have it." He also stated in front of another officer that "it's a wife's responsibility under the law of God, and he's allowed to have sex with his wife," that it was the "right of a man to turn her on," and that "if he took time he could get her into the mood."

         ¶12 Mr. Beverly was subsequently charged with rape, a first degree felony; forcible sexual abuse, a second degree felony; and domestic violence in the presence of a child, a class B misdemeanor.

         Testimony Concerning the Choking Incidents

         ¶13 At a preliminary hearing, S.B. testified that Mr. Beverly had committed prior acts of domestic abuse against her. Specifically, she testified that he had choked her on two specific occasions, once in November 1993 and the other in December 2004, and that he had threatened to kill her in the past. Following the hearing, the prosecution moved to admit these prior acts of domestic violence at trial to explain the wife's conduct and state of mind during the alleged rape. The trial court granted the prosecution's motion and admitted the evidence, concluding "that the proposed evidence is being offered for a non-character purpose that is relevant to this matter"-to show whether "the alleged victim was overcome by her fear for her safety" and "to demonstrate the victim's state of mind during the sexual assault."

         ¶14 At trial, S.B. testified on direct examination that "[there had] been some times where [Mr. Beverly] physically harmed me, he's choked me or threatened to kill me." S.B. did not testify about any specific instances of domestic abuse on direct. On cross, however, defense counsel proceeded to ask S.B. about the details of the November 1993 choking incident, but S.B. could not remember much besides the fact that she and Mr. Beverly were in a fight, and that he had choked her and threatened to kill her. Defense counsel then asked S.B. about an incident on New Year's Eve 1993. The prosecution objected and the trial court required that defense counsel's cross be limited to questions about the 2004 choking incident because the older incidents were "too old" and "no longer relevant." Defense counsel then proceeded to cross-examine S.B. about the 2004 incident, and S.B. admitted that she initiated an argument before that incident because she "suspected [Mr. Beverly] was cheating."

         The Trial Court's Comments to Potential Members of the Jury

         ¶15 Before trial, Mr. Beverly wrote a letter to the trial court asking the court to replace his appointed counsel because his counsel allegedly told him that he "must understand how 'you being black and she (my wife) is white how this will look'" to a jury. The trial court allowed Mr. Beverly's counsel to withdraw and appointed him new counsel.

         ¶16 During the jury selection process, the trial judge spoke to the jury pool to pass the time while counsel for both sides reviewed the jury list. The judge explained to the jury pool the jury selection process and different strategies parties use when selecting a jury. He mentioned that many of these selection strategies, in his opinion, "border[] on witchcraft." He then proceeded to give an example of a selection strategy:

For instance, in the O.J. Simpson trial, which a lot of you obviously know about, the defense lawyers at that time paid some firm $150, 000. And what the firm would do is they would pull people off of the street and then read them different arguments, and see how they reacted to those arguments. And then they gave the lawyers this perfect demographic of what the jury should look like so they would do well in trial.

         The judge then explained how, in his experience as a prosecutor and as a defense lawyer, he believed "the whole [selection strategy] is baloney," and "that if I found a person that was open minded, that hadn't had an experience similar to something like this," and was "intelligent," that he "always got a very good verdict that way."

         ¶17 The judge then described the evolution of Anglo-American jurisprudence, focusing on how cultures have determined guilt in the past. He spoke of early methods of sword fighting, burning the accused with a hot iron, casting alleged witches in ponds to see if they would float, the early stages of judges and juries, and, finally, the current system in America. He explained that counsel for both sides in this case were asking so many questions to members of the jury pool in order to "make sure that none of you knew anything about this case" and "because we want it to be a fair trial for both sides." He contrasted this process with Russia, where he said the people don't trust the judicial system and it has become "effectively a cash system." He stated that he believed that Russia was "unlike our system."

         ¶18 The judge then noted that "we read on occasion about these trials that go awry." He proceeded to use the O.J. Simpson trial as an example: "for instance, in my opinion, at least, the O.J. [Simpson] trial and other trials like that, that kind of go off course. And the reason we hear about those is because it is so unusual to our-for our system to completely fail like that." He emphasized that "[l]iterally, there are thousands of trials that go every day. And yet, at the end of the year . . . you'd be hard pressed to find 10 of them that have gone so far off the tracks that something has gone wrong." He concluded his remarks by expressing his faith in our judicial system and the great experience this would be for each person who participated. Mr. Beverly's counsel did not object to any of the judge's statements during the selection process.

         The DNA Evidence

         ¶19 On the second day of trial, the State called a forensic scientist from the Utah State Crime Lab who testified that the seminal samples from the vaginal swab performed in S.B.'s sexual assault exam contained a mixture of major and minor DNA profiles. The scientist stated that the major profile matched Mr. Beverly, but the minor profile was inconclusive because "[t]he information was so low that we can't even make a comparison to even know if there's a match." On cross-examination, defense counsel asked about the two DNA profiles and focused his questions on the fact that they were from two different people. The scientist testified that it is clear that "there was DNA from two separate individuals." But on redirect, he noted that the minor profile may have been S.B.'s vaginal cells, but that was not certain.

         ¶20 The State then raised a concern that defense counsel was inviting the jury to speculate that the minor profile was another male's sperm, which the prosecution claimed violated rule 412 of the Utah Rules of Evidence. Defense counsel argued that he should be able to address the possibility of another seminal source to show that S.B. "made a false statement under oath, because she had lied about whether or not she was having [a] sexual relationship with someone else." The trial court rejected this argument, stating that attacking S.B.'s "credibility about her sexual life . . . would be precluded under 412." The trial court also found that defense counsel's proposed use of the minor profile did not pass a rule 403 balancing test.

         ¶21 The jury subsequently found Mr. Beverly guilty of rape and forcible sexual abuse. They acquitted him on the charge of domestic violence in the presence of a child. Mr. Beverly timely appealed to this court. We initially transferred the case to the court of appeals under Utah Code section 78A-3-102(4). Subsequently, we vacated the order transferring the case to the court of appeals and recalled the case. We have jurisdiction under Utah Code section 78A-3-102(3)(i).


         ¶22 Mr. Beverly raises four arguments on appeal. First, he argues that the trial judge's comments to the jury pool regarding the O.J. Simpson trial violated his constitutional rights. But he did not preserve this argument below. Generally speaking, "[w]e . . . will not consider an issue unless it has been preserved for appeal."[2] But "[t]his court has recognized three distinct exceptions to preservation: plain error, ineffective assistance of counsel, and exceptional circumstances."[3] Thus, Mr. Beverly "must establish the applicability of one of these exceptions to persuade an appellate court to reach that issue."[4] He has not shown that an exception applies, and so we decline to address his argument regarding the trial judge's comments.

         ¶23 Second, he argues that the trial court erred when it excluded, under rules 412 and 403 of the Utah Rules of Evidence, his proposed use of the minor DNA profile evidence to show the possibility of a second sexual partner. "With regard to the admission of evidence, most decisions involve a threshold statement of the legal principle governing admission or exclusion, findings of facts pertinent to a determination, and the application of the legal principle to the facts at hand with regard to admissibility."[5] "We review the legal questions to make the determination of admissibility for correctness."[6] "We review the questions of fact for clear error."[7] We review application of legal principles to the facts of a case under an abuse of discretion standard.[8] A trial court's ruling on the admissibility of evidence is an application of legal principles to fact. Thus, "we review the [trial] court's ruling on admissibility for abuse of discretion."[9] So a trial court's decision to admit or exclude evidence under rule 412 is reviewed under an abuse of discretion standard.[10] Similarly, we review a trial court's decision to admit or exclude evidence under rule 403 for an abuse of discretion.[11] We hold that the trial court did not abuse its discretion here.

         ¶24 Third, Mr. Beverly argues that the trial court erred when it admitted evidence of his prior bad acts under rule 404(b) of the Utah Rules of Evidence, and when it prohibited Mr. Beverly from cross-examining S.B. about the 1993 New Year's Eve incident. We review a trial court's admission of prior bad acts under an abuse of discretion standard.[12] Similarly, "[t]rial courts have 'broad discretion in restricting the scope of cross-examination, and on appeal the trial court's ruling . . . is reviewed under an abuse of discretion standard.'"[13] We hold that the trial court did not abuse its discretion here.

         ¶25 Finally, he argues that the cumulative effect of the trial court's alleged errors deprived him of a fair trial. We will not reverse a conviction under the cumulative error doctrine unless "the cumulative effect of the several errors undermines our confidence . . . that a fair trial was had."[14] Because he has demonstrated only a single potential error, [15] we hold that the cumulative error doctrine cannot be applied in this case. Accordingly, we affirm his convictions.

         I. The Trial Judge's Comments to the Jury Pool

         ¶26 Mr. Beverly first argues that the trial court erred when it voiced its disapproval of the outcome of the O.J. Simpson trial to the members of the jury pool during jury selection. Specifically, he asserts that the trial court's statements violated his rights under the U.S. and Utah constitutions to a trial "by an impartial jury" and to "due process."[16] But he failed to preserve these arguments below. So he may attack the trial judge's comments only under one of the three exceptions to the rule of preservation-ineffective assistance of counsel, plain error, or extraordinary circumstances. We hold, however, that he failed to meet any of these three exceptions and so his argument fails.

         ¶27 Under Utah law, "parties are required to raise and argue an issue in the trial court 'in such a way that the court has an opportunity to rule on [it].'"[17] If they fail to raise an argument below, we generally will not reach it on appeal.[18] We refer to this principle as our rule of preservation.[19] We have recognized, however, three exceptions to this rule: ineffective assistance of counsel, plain error, and exceptional circumstances.[20] Thus, "[w]hen an issue is not preserved in the trial court, but a party seeks to raise it on appeal, the party must establish the applicability of one of these exceptions to persuade an appellate court to reach that issue."[21] Mr. Beverly has asserted each of these exceptions, so we review each one separately.

         A. Ineffective Assistance of Counsel

         ¶28 Mr. Beverly argues that this court may review his unpreserved challenge to the trial court's comments during jury selection under his ineffective assistance of counsel claim. In order to establish ineffective assistance of counsel, Mr. Beverly is required "to meet 'the heavy burden of showing that (1) trial counsel rendered deficient performance which fell below an objective standard of reasonable professional judgment, and (2) counsel's deficient performance prejudiced him.'"[22] Because he cannot show that he was prejudiced, Mr. Beverly fails to carry this burden.

         ¶29 Mr. Beverly argues that the trial judge's "remarks were inflammatory and misleading" and that "[c]ounsel should have objected to the remarks at a time when another jury could be empaneled." He argues, in effect, that in failing to object his counsel fell below an objective standard of reasonable professional judgment. The State argues, however, that we should "presume that counsel has rendered adequate assistance"[23] and, as such, Mr. Beverly must "persuad[e] the court that there was no 'conceivable tactical basis for counsel's actions.'"[24] The State claims that a reasonably prudent attorney, upon hearing the trial judge's remarks, would intentionally choose not to object to the remarks in order to avoid drawing the jury's attention to them or their potential significance. In other words, the State argues that there is a sound strategic tactic behind trial counsel's failure to object. And because there is a sound strategic tactic for not objecting, the State contends that Mr. Beverly cannot show that his counsel was deficient in failing to object. But because Mr. Beverly cannot show prejudice, we do not address whether his trial counsel's performance was deficient.

         ¶30 "To show prejudice in the ineffective assistance of counsel context, the defendant bears the burden of proving that counsel's errors actually had an adverse effect on the defense and that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different."[25] "A reasonable probability is a probability sufficient to undermine confidence in the outcome."[26] "In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury."[27] This is so because "[s]ome errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect."[28] Thus, "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support."[29]

         ¶31 Here, Mr. Beverly cannot show that, but for his trial counsel's deficient performance, there is a reasonable probability that he would have been acquitted, because the overwhelming, undisputed evidence on the record supports the jury's conviction in this case. For example, it is undisputed that S.B. and Mr. Beverly had not had a physical relationship in two years prior to the incident and that on August 13, 2014, he was very angry, went into S.B's room, slammed the door, and stated "you're having sex with me tonight." It is also undisputed that S.B. said "no" more than once to Mr. Beverly's demands, that he had sexual intercourse with her, that she was crying during the incident, and that she immediately called 9-1-1 thereafter. Mr. Beverly never challenged the truth of any of these asserted facts. In fact, as the officer who interviewed him testified, Mr. Beverly voluntarily told the officer that he had sex with S.B., that she had said "no" more than once, and that she was crying during the incident. And nothing in the record undermines this testimony.

         ¶32 Also, even Mr. Beverly's own witness did not cast much doubt on the issue of consent. In his defense at trial, Mr. Beverly called only one witness-his sister, Candy Brown. On direct, Ms. Brown testified that S.B. called her the morning after the alleged rape and that S.B. used the phrase "one thing led to another" to describe the incident with Mr. Beverly. Ms. Brown also testified that S.B. told Ms. Brown that Mr. Beverly had "sexually assaulted" her, that she became upset when Mr. Beverly called her "the B word" during intercourse, and that she had thought about calling the police upon hearing that word. Even if these statements could be construed to in some way support Mr. Beverly's assertion that the couple engaged in consensual sex, Ms. Brown's statements on cross contradict this notion.

         ¶33 On cross, she also testified that S.B. told her, in addition to stating that "one thing led to another," that Mr. Beverly "had raped her." In fact, during Ms. Brown's direct examination, she had testified that after S.B. told her about the incident, she asked S.B. "why didn't you scream or something?," to which S.B. replied, "I didn't want to arouse the boys, they were down the hall." And, when asked on cross-examination if "the impression that [Ms. Brown] had [from S.B.'s remarks on the phone was] that she had fabricated this rape allegation," Ms. Brown replied "No," and stated that S.B. "didn't say that it was consensual. She said, one thing led to another." This testimony shows that S.B. called Ms. Brown the day after the incident, told her she was raped by Mr. Beverly, and that even Ms. Brown did not believe S.B. was fabricating her claims.

         ¶34 Given the overwhelming and undisputed evidence admitted at trial, it is not reasonably likely the jury would have acquitted Mr. Beverly if his trial counsel had objected to the trial judge's comments during jury selection. Because most of the material facts were undisputed, Mr. Beverly likely would have been found guilty regardless of such comments. Thus, he cannot show a reasonable probability of a different outcome in this case.

         ¶35 Accordingly, we will not disturb the jury verdict under his ineffective assistance of counsel claim.

         B. Plain Error

         ¶36 Mr. Beverly also argues that the trial court's comments constituted plain error. But, as we have already addressed, the judge's comments did not cause him prejudice. Because he has not shown that the trial court's error was harmful, he has failed to establish that the trial judge's comments constituted plain error.

         ¶37 "'To demonstrate plain error, a defendant must establish that '(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful. . . .' If any one of these requirements is not met, plain error is not established."[30] An error is obvious to the trial court when the party relying on plain error "'show[s] that the law governing the error was clear,' or 'plainly settled' at the time the alleged error was made."[31] An error is harmful when the same party shows that the error is "of such a magnitude that there is a reasonable likelihood of a more favorable outcome for the defendant."[32] In other words, the party must show that "there is a 'reasonable probability' that, 'but for the alleged error,' the outcome in the case would have been different."[33] This means "that the prejudice test is the same whether under the claim of ineffective assistance or plain error."[34] Mr. Beverly fails this test.

         ¶38 Mr. Beverly argues that the trial judge committed plain error in making certain comments to the jury pool at the beginning of trial. The judge stated he believed that the jury in the O.J. Simpson trial went "off course," and that that trial was an example of the judicial system "completely fail[ing]." Mr. Beverly makes a strong argument that these comments constituted error. The O.J Simpson trial was of such notoriety that simply mentioning the case could inflame passions and ignite conscious or subconscious biases. This is particularly true here, in a case with a racial dynamic similar to the one present in the O.J. Simpson trial in which a black man was accused of murdering his white wife.

         ¶39 Because the risk of prejudicing the parties is high in circumstances such as this, judges should steer clear of remarking upon infamous cases and their results, particularly when such a case is factually similar to the case the potential jury members will be reviewing. These types of comments are problematic because they have the potential to do serious harm by confusing jurors, inflaming their passions, and causing them to question a judge's impartiality. But even though the trial court's comments in this case were concerning, we need not determine whether they constituted error or obvious error. This is so because Mr. Beverly fails to demonstrate that the comments resulted in prejudice.

         ¶40 Regardless of whether the trial judge's comments regarding O.J. Simpson constituted error, or whether such error was obvious, Mr. Beverly cannot show prejudice, and so he cannot show harm under his plain error claim. As shown above, [35] the overwhelming evidence of Mr. Beverly's guilt on the record makes it difficult to imagine him being acquitted of his charges in this case, whether or not the trial judge made improper statements about the O.J. Simpson case. In other words, the overwhelming weight of the evidence in support of Mr. Beverly's conviction leads us to conclude that the jury would have reached the same result even if the trial court had not made the comments. Because Mr. Beverly cannot show the trial judge's alleged error caused sufficient harm in this case, his plain error argument fails.

         C. Exceptional Circumstances

         ¶41 Lastly, Mr. Beverly argues that we may also review the trial court's comments under the exceptional circumstances doctrine. But because he cannot show that our failure to review his challenge would result in a manifest injustice, he fails on this point as well.

         ¶42 The exceptional circumstances exception "is a doctrine that 'applies to rare procedural anomalies.'"[36] We "apply this 'exception sparingly, reserving it for the most unusual circumstances where our failure to consider an issue that was not properly preserved for appeal would have resulted in manifest injustice.'"[37] In order for this court to review Mr. Beverly's challenge under this exception, he must therefore show that there was a ...

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