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State v. Hood

Court of Appeals of Utah

December 20, 2018

State of Utah, Appellee,
v.
Howard Wayne Hood, Appellant.

          Third District Court, Salt Lake Department The Honorable Randall N. Skanchy No. 131910817

          Marshall M. Thompson and Andrea J. Garland, Attorneys for Appellant

          Sean D. Reyes and Jeffrey S. Gray, Attorneys for Appellee

          Judge Diana Hagen authored this Opinion, in which Judge Kate Appleby [1] concurred.

          HAGEN, JUDGE.

         ¶1 Howard Wayne Hood appeals his convictions for rape and forcible sodomy. Before trial, Hood sought to exclude evidence that he had been excommunicated from The Church of Jesus Christ of Latter-day Saints, arguing that the evidence was inadmissible "other act" evidence under rule 404(b) of the Utah Rules of Evidence. The district court admitted the evidence to explain the context of Hood's relationship with the alleged victim. We conclude that this was a proper, non-propensity purpose and that the evidence was relevant to assessing the victim's credibility on the question of consent. But because we also conclude that the danger of unfair prejudice substantially outweighed the probative value of the evidence and that its admission was harmful, we vacate Hood's convictions and remand for a new trial.

         BACKGROUND

         Relationship Between Hood and W.B.

         ¶2 Hood met the alleged victim, W.B., on a dating website in March 2013. W.B. was a member of The Church of Jesus Christ of Latter-day Saints and assumed that Hood was as well because his profile picture showed a photograph of the church's founder in the background. According to W.B., on their first date, Hood told her he had not gone to church for some time but had attended that same day and wanted to resume his involvement in the church. He said he was grateful to meet someone like her who was a member so that she could help him come back into "full fellowship" with the church. At trial, W.B. explained that "full fellowship" means taking steps to "live the teachings of the gospel" and being able to "take the sacrament"[2] and "receive further blessings." At some point, Hood disclosed to W.B. that he had been excommunicated from the church.[3]

         ¶3 Over the next several months, Hood and W.B. continued dating, but their relationship was volatile and involved a series of breakups and reconciliations. W.B. acknowledged that the couple had engaged in various acts of sexual intimacy short of intercourse during their relationship. She testified that although such physical intimacy before marriage conflicted with her religious beliefs, Hood manipulated her into submitting to these acts.

         ¶4 W.B. also testified that she told Hood she would not engage in premarital sexual intercourse because church doctrine forbade it. Despite knowing her opposition, Hood once pushed her against the kitchen wall and penetrated her vaginally and anally with his penis while saying, "Isn't this a fun game we're playing?" According to W.B., she told Hood, "No, . . . this isn't fun." After this incident, she met with her ecclesiastical leader, the bishop, and confessed that she "had allowed" the act even though she did not want it to happen. She testified that the bishop counseled her to refrain from participating in the sacrament for three weeks.

         ¶5 At trial, Hood painted a different picture of the couple's relationship. He testified that W.B. was eager to engage in sexual activity, including oral sex and intercourse, and "never talked to [him] about not wanting to have sex because she was taking her religion seriously." Hood testified that he and W.B. talked little about religion and that the topic was not central to their relationship. According to Hood, they had a sexual relationship for months before he told W.B. that he was trying to return to the church after having been excommunicated.

         Charged Conduct

         ¶6 On October 19, 2013, W.B. left Hood's apartment after an argument, inadvertently leaving her checkbook there. That night, Hood sent her a text that she had forgotten her checkbook, and W.B. responded, asking if she could retrieve it the next day. Because of the argument, she suggested he hand her the checkbook at the door if he did not want her to come into the apartment. But when she arrived the next day, Hood hugged her and told her he was sorry for what had happened. W.B. testified she felt ill that morning and told Hood that she was "really tired." He led her into his bedroom and suggested she take a nap.

         ¶7 W.B. testified that, after she fell asleep, Hood entered the room, removed her pants, and performed oral sex on her. When she woke, Hood held her down and ignored her pleas to stop. According to W.B., she was sobbing when Hood put on a condom. She begged, "No, Howard, no," then froze in "complete and utter shock" while he raped her.

         ¶8 In contrast, Hood testified that W.B. initiated the encounter by suggesting they take a nap together. According to Hood, they began "making out" in the bedroom and he performed oral sex on W.B. only after she asked him to give her an orgasm. Hood testified that, after the oral sex, he retrieved condoms from his car before returning to the bedroom to have intercourse with her.

         Motion to Exclude Under Rule 404(b)

         ¶9 The State charged Hood with one count of rape and one count of forcible sodomy. At trial, Hood voiced concern over whether the State intended to elicit testimony regarding his excommunication from the church.[4] Hood acknowledged that although it may be permissible to explain that he was not a church member, it was a 404(b) issue "to say he's been excommunicated in the past." The district court initially agreed that there was "no reason" for such evidence. The State objected, arguing that Hood's excommunication was a central component of his relationship with W.B. The State explained that W.B. would testify that "Hood made it very clear that he was excommunicated, but that he wanted to come back to the church and that . . . plea for help, spiritually speaking, was one of her reasons for staying in contact with him." The State posited that Hood's excommunication and his professed desire to return to the church were "very probative of why [W.B.] maintain[ed] contact with this person who [was] making . . . repeated [sexual] overtures."

         ¶10 Hood conceded that W.B. could testify that he "left the church, . . . he wasn't a member, he's trying to come back to the church," but he objected to the admission of evidence that he had been excommunicated. The district court questioned whether it was possible to "shape or mold [W.B.'s] testimony beyond what the facts actually are" to avoid mentioning the excommunication. It noted that Hood's status in the church was "a fairly central part of the ongoing relationship between these parties" and ruled that it would allow Hood's statements to W.B. regarding his excommunication.

         Use of Excommunication Evidence at Trial

         ¶11 At trial, the State presented evidence that Hood had been excommunicated from the church but never disclosed what Hood did to merit that sanction. In its opening statement, the State referred to Hood's professed desire to "get back [to being] active in the church" and his pleas for W.B. to help him do so as the method he used to manipulate W.B. into forgiving him and staying in the relationship. The prosecutor did not use the term "excommunication" or otherwise refer to official church discipline.

         ¶12 During trial, however, the State elicited testimony about Hood's excommunication from three witnesses. First, W.B. testified that Hood told her he had been excommunicated. Because he had lost his membership in the church, Hood told her that he needed to "retake the discussions" with the church missionaries and then "be found worthy to be rebaptized to be able to have the blessings of the gospel in his life."

         ¶13 Second, during cross-examination, Hood confirmed that he told W.B. of his excommunication. In a subsequent line of questioning, the State reiterated that Hood had been "officially excommunicated from the church."

         ¶14 Third, the State offered testimony from Hood's ex-wife about his excommunication. She testified that, soon after they met, Hood told her he "was trying to get in good standing with the church because he had been excommunicated." She explained that "there's certain things that if you do them, like morality, different things like that, then you have to go and confess to your bishop or stake president or whatnot, and then . . . they hold a council, and if they find that you're lacking, they can excommunicate you." Hood's ex-wife testified that obeying the "law of chastity" was important to maintaining good standing in the church.

         ¶15 In its closing argument, the State directly referred to Hood's excommunication. The prosecutor argued that Hood's professed "interest in rekindling the flame of faith" explained why the "naïve" and "religious" W.B. continued to forgive and wanted to "believe that he will be better."

         ¶16 The jury convicted Hood of rape and forcible sodomy. He ...


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