ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFERY L. LANTZ JEFFREY A. MODISETT
JON K. AARSTAD Attorney General of Indiana
ROSEMARY L. BOREK
Deputy Attorney General
ROBERT E. UTLEY, ) ) Appellant-Defendant, ) ) vs. ) No. 82A04-9801-CR-14 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
police). On October 13, 1996, Utley and the victim had an argument at a bar. (R. 301-E).
Eventually Utley left the bar and the victim followed Utley to his car. (R. 301-E). As Utley
drove out of the parking lot, he saw the victim running towards the side of the car. (R. 301-
E, 447). Utley heard a thump. (R. 448). Another witness testified that he heard a loud
crash, saw the victim flying through the air, and saw the Utley's car speed away. (R. 254).
The victim died as a result of the injuries sustained in the collision. (R. 362).
Utley was charged with Reckless Homicide and Leaving the Scene of an Accident. (R. 6-7). After a trial, the jury acquitted Utley of Reckless Homicide, but convicted him of Leaving the Scene of an Accident. (R. 31-32). The trial court found that the aggravating and mitigating circumstances balanced each other out and sentenced Utley to the presumptive term of four years. (R. 704). Additionally, the trial court ordered Utley to make restitution by paying the victim's funeral expenses. (R. 704). Also, the trial court ordered Utley to complete 200 hours of community service as a condition of probation.See footnote 3 3 (R. 704). This appeal followed.
Where conditions were such that the driver should have known that an
accident occurred or should have reasonably anticipated that the accident
resulted in injury or death to a person the requisite proof of knowledge is
. . . .
It is unnecessary for the state to prove that the defendant knew that the death
resulted from his accident. This legal requirement of stopping after an
accident is mandatory, whether or not a person is familiar with the law or not.
In other words, ignorance of the law is no excuse in failing to stop after an
accident as long as the defendant knew or should have known that an accident
occurred. Likewise, the State need not prove that the defendant's failure to
stop caused or contributed to the death. The State need only to prove that the
accident resulted in the death of another person.
(R. 628-29; Final Instructions No. 13-14). Utley argues the instructions were not supported by the evidence because he did not claim ignorance of the law. Utley also argues that the instructions failed to inform the jury that the State was required to prove that Utley knew that the accident resulted in injury or death, citing Micinski v. State, 487 N.E.2d 150, 152-53 (Ind. 1986).
reviewing court determines whether the instruction correctly states the law, whether there is
evidence in the record to support the giving of the instruction, and whether the substance of
the instruction is covered by other instructions which are given. Fields v. State, 679 N.E.2d
1315, 1322 (Ind. 1997).
In the present case, t he first instruction tracks the following language from Micinski, 487 N.E.2d at 153:
The jury may infer that a defendant knew that an accident occurred or that people were injured from an examination of the circumstances of the event. Where conditions were such that the driver should have known that an accident occurred or should have reasonably anticipated that the accident resulted in injury to a person, the requisite proof of knowledge is present.
Thus, the trial court's instruction correctly stated the law. We cannot conclude that the jury was misled regarding the law in the case. Therefore, the trial court did not abuse its discretion in instructing the jury.
793 (Ind. 1997);
Thompson v. State, 671 N.E.2d 1165, 1171 (Ind. 1996). A trial court's
decision to admit evidence will not be reversed absent a showing of a manifest abuse of the
trial court's discretion resulting in the denial of a fair trial. Minnick v. State, 544 N.E.2d
471, 477 (Ind. 1989).
Indiana Evidence Rule 404 reads:
(a) Character Evidence Generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, . . .
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .
The trial court is accorded wide latitude in ruling on the relevancy of evidence. Thompson, 671 N.E.2d at 1171. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evid.R. 401; Hardin v. State, 611 N.E.2d 123, 127 (Ind. 1993) (Evidence is relevant if it tends to prove or disprove a material fact or sheds any light on the guilt or innocence of the accused). Evidence which is not relevant is not admissible. Evid.R. 402. However, all relevant evidence is admissible, except as otherwise provided by law. Id. Even if the testimony offered is only marginally relevant, it is within the trial court's discretion to permit its admission. Thompson, 671 N.E.2d at 1171. Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
misleading the jury, or by considerations of undue delay, or needless presentation of
cumulative evidence. Evid.R. 403; Hardin, 611 N.E.2d at 127. The trial court has wide
latitude in weighing the probative value of the evidence against the possible prejudice of its
admission and its ruling will be reviewed only for an abuse of discretion. Poindexter v.
State, 664 N.E.2d 398, 400 (Ind. Ct. App. 1996).
Indiana Evidence Rule 404(b) applies to any act not part of the charged offense regardless of whether the other act was criminal. Cadiz v. State, 683 N.E.2d 597, 599 (Ind. Ct. App. 1997) (gang membership admissible under Evid.R. 404(b) to prove motive despite fact it might bear adversely upon defendant's character); Kimble v. State, 659 N.E.2d 182, 184 n.5 (Ind. Ct. App. 1995) (membership in white supremacist group admissible to prove motive under Evid.R. 404(b) fact it might bear adversely upon defendant's character), trans. denied.
Utley is correct that evidence of a person's sexual preference or propensities is generally considered character evidence. See Stewart v. State, 555 N.E.2d 121, 124-25 (Ind. 1990) (depraved sexual instinct); Lawrence v. State, 464 N.E.2d 923, 924 (Ind. 1984) (male's sexual aggressiveness toward women); Raines v. State, 251 Ind. 248, 240 N.E.2d 819, 820 (1968) (irrelevant evidence of homosexual activity reversible error); Kallas v. State, 227 Ind. 103, 83 N.E.2d 769, 773-74 (1949), cert. denied, 336 U.S. 940; Grimes v. State, 450 N.E.2d 512, 518-19 (Ind. 1983) (evidence of bondage/sadomasochism relevant to show how victim
died); D.H. v. J.H., 418 N.E.2d 286, 290-93 (Ind. Ct. App. 1981) (parent's extra-marital
sexual conduct relevant in child custody determination); Hall v. State, 176 Ind.App. 604, 339
N.E.2d 802, 804 (1976) (defendant would not be permitted to question State's witness
regarding sexual preference for sole purpose of discrediting witness); State v. Tillman, 119
OhioApp.3d 449, 695 N.E.2d 792, 798-99 (Ohio App. 1997) (evidence of sexual preference
not admissible to prove conduct in conformity therewith); State v. Rivera, 152 Ariz. 507, 733
P.2d 1090, 1100-01 (Ariz. 1987) (evidence of sexual preference, whether heterosexual or
homosexual, is character evidence under Evid.R. 404 and, State was appropriately permitted
to introduce evidence that victim was heterosexual to rebut defendant's claim that victim had
made a homosexual attack); State v. Lambert, 528 A.2d 890, 893 (Me. 1987) (evidence of
victim's character as a heterosexual not admissible under Evid.R. 404(a)); People v. Kosters,
437 Mich. 937, 467 N.W.2d 311, 316-17 n. 3 (1991) (evidence of sexual preference covered
by Evid.Rule 404); Cohn v. Papke, 655 F.2d 191, 193-94 (9th Cir. 1981);
People v. Mitchell,
402 Mich. 506, 265 N.W.2d 163, 169 (Mich. 1978); People v. Limas, 45 Ill.App.3d 643, 359
N.E.2d 1194, 1199 (1977).
In the present case, Utley was charged with the homicide of his former lover. The former intimate nature of Utley's relationship with the victim was highly probative and relevant to explain the context of the argument which preceded the events which culminated in the victim's death and any motive Utley may have had to harm the victim. That Utley's sexual preference was disclosed through this evidence was merely incidental or collateral,
but inextricably bound up with the crime charged. See
State v. Lambert, 528 A.2d at 892
(evidence of defendant's sexual preference inextricably bound up with the crime alleged).
t is well-established that evidence which explains the relationship of the
defendant with the victim and the context of the alleged crime is not inadmissible simply
because it incidentally discloses sexual conduct which, by definition, reflects upon the
defendant's character. See Smith v. State, 655 N.E.2d 532, 544 (Ind. Ct. App. 1995), trans.
Thus, the evidence of Utley's sexual preference was not inadmissible under Evid.R. 404 because it was not admitted for the improper purpose of proving that Utley acted in conformity therewith in the commission of the charged homicide. See Hardin, 611 N.E.2d at 128 (evidence is only excluded if offered for the sole purpose of producing the forbidden inference that the defendant possesses certain character traits and that the defendant acted in conformity with those character traits in committing the charged offense). As the evidence was not introduced for the forbidden inference of demonstrating Utley's propensity to commit the charged crime, we cannot conclude that the trial court erred by refusing to prohibit evidence which collaterally referenced Utley's sexual preference which was inextricably bound up with the circumstances of the charged crime.
trial court's imposition of conditions of probation and its order of restitution.See footnote 4
that the trial court's authority to order the defendant to pay the victim's funeral expenses is
limited to those defendants convicted of homicides, citing Ind. Code § 35-50-5-3(a)(4).
because of Utley's failure to stop at the scene of the accident. Therefore, we reverse the
decision of the trial court and remand with instructions to vacate the order of restitution.See footnote 5
findings that the aggravating and mitigating circumstances balanced each other out. Under the circumstances, we cannot conclude that the four-year sentence was manifestly unreasonable or otherwise constituted an abuse of discretion. Therefore, we find no error.
attempt to avoid police is circumstantial evidence of the defendant's consciousness of guilt
which the jury may consider, in connection with other evidence presented, to find guilt).
In any event, the correct procedure to be employed when the prosecutor makes an improper argument is to request that the trial court admonish the jury and, if further relief is desired, to request a mistrial. Isaacs v. State, 673 N.E.2d 757, 763 (Ind. 1996). The failure to request an admonishment or move for a mistrial results in waiver. Id. To overcome waiver under these circumstances, the defendant must demonstrate fundamental error. Id.
Fundamental error is error so prejudicial that it amounts to a denial of fundamental due process. State v. Winters, 678 N.E.2d 405, 410 (Ind. Ct. App. 1997). Fundamental error must be of such magnitude to persuade the reviewing court that the defendant could not possibly have received a fair trial or that the verdict is clearly wrong or of such dubious validity that justice cannot permit it to stand. Id. Similarly, to obtain reversal on a claim of ineffective assistance of counsel, defendant must demonstrate that counsel's alleged error rendered the result of the proceeding fundamentally unfair or unreliable. Games v. State, 684 N.E.2d 466, 469 (Ind. 1997) (no longer sufficient to establish a reasonable possibility that the outcome would have been different), modified on reh'g, 690 N.E.2d 211.
A successful claim of prosecutorial misconduct requires a determination that there was misconduct by the prosecutor which had a probable persuasive effect on the jury's decision. Cox v. State, Ind. No. 48S00-9705-CR-313 (June 26, 1998) slip op. at 10-11 (grave peril test abandoned as superfluous). The degree of impropriety of the conduct is
irrelevant. Id. The trial court's instructions to the jury are presumed to cure any improper
statements made during trial. Fox v. State, 520 N.E.2d 429, 431 (Ind. 1988).
As noted above, the challenged statements made by the prosecutor were not objectionable. Moreover, the jury was correctly instructed regarding the statutory requirements to convict Utley of the instant offense. Based on the above, we cannot conclude that the statements made by the prosecutor served to deny Utley of his right to a fair trial or rendered the proceeding fundamentally unfair. Therefore, we find no error.
We reverse and remand with instructions that the trial court vacate the order of restitution. In all other respects, the judgment of the trial court is affirmed.
BAKER, J., and DARDEN, J., concur.
Converted by Andrew Scriven