State v. Bravo , 343 P.3d 306 ( 2015 )

2015 UT App 17_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
PETER LUNA BRAVO III,
Defendant and Appellant.
Opinion
No. 20120305-CA
Filed January 23, 2015
Third District Court, Salt Lake Department
The Honorable Robin W. Reese
No. 111900792
Peter A. Daines and Joanna E. Landau, Attorneys
for Appellant
Sean D. Reyes, Deborah L. Bulkeley, and
Ryan D. Tenney, Attorneys for Appellee
JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.
PEARCE, Judge:
¶1 Peter Luna Bravo III appeals from his conviction of
aggravated burglary, rape, and forcible sodomy. Bravo argues that
the district court erred when it excluded evidence of his sexual
history with the victim (Victim) under rule 412 of the Utah Rules of
Evidence. We conclude that, in large measure, Bravo failed to
proffer specific instances of Victim’s sexual behavior as the rule
requires. Because Bravo failed to provide the district court with the
information it needed to perform a meaningful analysis under rule
403 of the Utah Rules of Evidence, the court did not exceed the
bounds of its discretion in excluding the evidence. We affirm.
State v. Bravo
BACKGROUND1
¶2 Bravo met Victim in 2001. The two became romantically
involved and eventually married. They divorced in 2008 but
continued their sexual relationship. In August 2010, the couple
fought, the police were called, and Victim told Bravo to leave and
never return.
¶3 Despite Victim’s command to stay away, a few weeks later
Bravo visited her apartment and knocked on the door. Believing he
was a neighbor looking to borrow a cigarette, Victim cracked the
door open. Bravo pushed his way in and pinned her to the ground.
He grabbed a dog leash and held her down by pressing the leash
across her neck. He forcibly penetrated her vaginally. He then
slung her over his shoulder, carried her to her bedroom, and threw
her on the bed. Victim struggled to escape, but Bravo restrained
her, flipped her onto her stomach, and penetrated her anally. He
became frustrated when he was unable to ejaculate and left,
punching and breaking a window on the way out.
¶4 The State charged Bravo with aggravated burglary, rape,
and forcible sodomy. Before trial, Bravo moved to admit evidence
of Victim’s prior sexual activity pursuant to rule 412 of the Utah
Rules of Evidence. In his written motion, Bravo proffered that
during their marriage, he and Victim “consensually engaged in
what would generally be considered ‘rough sex,’ including but not
limited to autoerotic asphyxiation, sodomy, and numerous other
sex acts well outside this community’s standards for sexual
behavior.” He further proffered that even after their divorce, the
couple “not infrequently continued to get together for sexual
escapades . . . consistent with their sexual activities during their
1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence only
as necessary to understand issues raised on appeal.” State v.
Marchet, 2014 UT App 147, ¶ 2 n.3, 330 P.3d 138 (citation and
internal quotation marks omitted).
20120305-CA 2 2015 UT App 17State v. Bravo
marriage.” Bravo’s motion asserted that this evidence should be
admitted because it “supports the defense of consent” and because
its exclusion would “violate [his] fundamental due process rights
under the Utah and U.S. Constitutions.” The district court
scheduled an in camera hearing to address the rule 412 motion.
¶5 Bravo was unable to attend the scheduled hearing, which
proceeded in his absence. The State argued that Bravo’s proposed
testimony was too general to meet rule 412’s requirements or to
allow the State to prepare properly for trial. Bravo’s counsel argued
that no decision on the matter should be reached until Bravo was
present. The district court agreed to delay ruling until Bravo could
attend but indicated that it was inclined to allow testimony that
Bravo and Victim’s sexual activity continued after their marriage
ended. The district court expressed skepticism that Bravo’s
proposed “rough sex” testimony would be admissible, explaining,
[I]f it’s just the before and after marriage we did
certain “rough” things including asphyxiation and,
and sodomy it just doesn’t seem relevant when the
charge is that Mr. Bravo on this particular occasion
forced his way into the complaining witness’s home,
grabbed her by the neck and forced her to the floor,
disrobed her against her will, forced himself upon
her, put a dog leash around her neck, drug her into
the bedroom and then, and then penetrated [her]
anally. I just don’t see how, how the fact that they
may have [had] some form of unconventional sex
before reflects that the victim consented to this
behavior on this occasion.
The district court reserved the question until trial so that Bravo
could be present.
¶6 On the first day of trial, the district court revisited the rule
412 motion. The district court again stated its belief that testimony
about prior rough sex would not be relevant to show consent, but
the court invited Bravo’s counsel to proffer specific prior acts and
20120305-CA 3 2015 UT App 17State v. Bravo
explain why those acts would be relevant to demonstrate consent.
Bravo’s counsel responded that Bravo and Victim’s “typical day-in-
day-out sexual routines included bondage, masochism, anal sex
and pretty much everything else one could think of without going
into more detail on the record.” Counsel argued that Victim’s
allegation of anal sex was consistent with the couple’s long-term
sexual history and that her testimony about the dog leash “would
go to the autoerotic asphyxiation as well [as] possible bondage
incidents.” Counsel concluded, “[I]n a nutshell Mr. Bravo would
testify that the events that happened on the night in question in this
case were, if anything, tame for what had been the norm for their
relationship . . . .”
¶7 The district court ruled that Bravo could testify that he and
Victim continued to have sex after their divorce. However, the
district court excluded Bravo’s proffered testimony about the
couple’s prior sex practices, ruling, “I just don’t see the relevance
and even if there is a sliver of relevance in there . . . the relevance
would be outweighed by the danger of unfair prejudice.”
¶8 At trial, Bravo testified that the events Victim described had
not occurred in the place or manner Victim portrayed. Bravo
testified that he had not gone to Victim’s home, but that Victim had
come to his hotel room where they engaged in consensual and
“strictly vaginal” sex. He also testified that he had not broken the
window at Victim’s apartment and that he had witnessed one of
Victim’s friends break it on a separate occasion.
¶9 The jury convicted Bravo of aggravated burglary, rape, and
forcible sodomy. The district court sentenced him to three
concurrent five-years-to-life prison terms. Bravo appeals.
ISSUE AND STANDARD OF REVIEW
¶10 Bravo argues that the district court committed reversible
error when it excluded evidence of the sexual history he shared
with Victim. We review the district court’s evidentiary rulings for
20120305-CA 4 2015 UT App 17State v. Bravo
an abuse of discretion. See State v. Clark, 2009 UT App 252, ¶ 10, 219
P.3d 631. We review the district court’s interpretation of
evidentiary rules for correctness, giving no deference to the district
court’s interpretation. See State v. Richardson, 2013 UT 50, ¶ 32, 308
P.3d 526.
ANALYSIS
¶11 Rule 412 of the Utah Rules of Evidence generally prohibits
the admission of evidence of a victim’s sexual behavior or sexual
predisposition in any criminal proceeding involving alleged sexual
misconduct. The rule contains several exceptions, one of which
permits the admission of “evidence of specific instances of a
victim’s sexual behavior with respect to the person accused of the
sexual misconduct, if offered by the defendant to prove consent,”
so long as that evidence “is otherwise admissible under [the Utah
Rules of Evidence].” Utah R. Evid. 412(b)(2). Bravo argues that the
evidence he proffered regarding his and Victim’s prior sexual
activities should have been admitted under rule 412(b)(2) and that
the district court’s exclusion of the evidence constitutes reversible
error.2
I. State v. Richardson and Legal Standards
for Admission of Rule 412 Evidence
¶12 After Bravo filed his initial appellate brief, but before the
State responded, the Utah Supreme Court decided State v.
Richardson, 2013 UT 50, 308 P.3d 526.3 In Richardson, the defendant
was convicted on rape and sodomy charges arising in part from the
2. Bravo does not argue that excluding the evidence would “violate
[his] constitutional rights” under rule 412(b)(3). See Utah R. Evid.
412(b)(3).
3. Both the State’s brief and Bravo’s reply brief contained extensive
analysis applying State v. Richardson, 2013 UT 50, 308 P.3d 526, to
this case.
20120305-CA 5 2015 UT App 17State v. Bravo
allegation that he had forced a woman to have anal sex with him
while she was menstruating. See id. ¶ 21. The supreme court
reversed the convictions because the district court had excluded
evidence that the defendant and the alleged victim routinely
engaged in consensual anal sex while the victim was menstruating.
See id. Richardson applied rules 401 and 402 of the Utah Rules of
Evidence in the specific context of rule 412(b)(2)’s consent
exception, and the case guides our analysis of Bravo’s rule 412(b)(2)
argument.
¶13 In Richardson, the defendant sought to admit the sexual
history evidence to “‘prove consent’” pursuant to rule 412(b)(2).
2003 UT 50, ¶ 21. In light of this purpose, the supreme court
concluded that the proffered evidence fell “squarely within” the
rule 412(b)(2) consent exception. Thus, “the only remaining
question [was] whether [the] evidence was ‘otherwise admissible’
under the rules of evidence.” Id.¶14 The district court in Richardson had excluded the evidence
because it was “‘not sufficiently relevant to be admissible.’” Id.
¶ 22. However, the supreme court agreed with the defendant that
“there is no ‘heightened relevancy test for evidence of specific
instances of sexual activity between an alleged victim and the
accused’” and that the evidence “was relevant under the lenient
standards of rules 401 and 402 [of the Utah Rules of Evidence].” Id.;
see also Utah R. Evid. 401 (defining relevant evidence as evidence
having any tendency to make a fact of consequence more or less
probable than it would be without the evidence); Utah R. Evid. 402
(declaring relevant evidence presumptively admissible and
irrelevant evidence inadmissible).
¶15 The supreme court stated that, together, rules 401 and 402
“establish a very low bar that deems even evidence with the
slightest probative value relevant and presumptively admissible.”
Richardson, 2013 UT 50, ¶ 24 (citation and internal quotation marks
omitted). The court further explained that those rules “define
relevance in binary terms: Either evidence is relevant because it
makes a fact of consequence more or less probable, or it is not
20120305-CA 6 2015 UT App 17State v. Bravo
because it does not.” Id. ¶ 27. “The binary standard of relevance in
our rules leaves no room for an evaluation of whether evidence [is]
‘sufficiently relevant.’ Either it [is] relevant or it [isn’t] . . . .” Id.
¶ 29.
¶16 Examining the sexual history evidence at issue in that case,
the Richardson court concluded that the evidence was relevant to
the issue of the victim’s consent because it made consent “more
probable” by “contextualiz[ing] the victim’s sexual relationship
with [the defendant].” Id. ¶ 25. Relying on the State’s concession
that “evidence that the two had a sexual relationship” was
admissible, the supreme court explained, “The excluded evidence
merely added detail to that knowledge. If the general evidence of
a sexual relationship was relevant, the more detailed evidence was
as well.” Id.
¶17 Because the district court had excluded the sexual history
evidence solely on relevance, State v. Richardson did not directly
address the application of rule 403 to evidence of a victim’s other
sexual activity.4 See 2013 UT 50, ¶¶ 30–32, 308 P.3d 526; see also
Utah R. Evid. 403 (“The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . .
unfair prejudice . . . .”). However, the Utah Supreme Court has
previously held that, under rule 403, evidence of “a rape victim’s
past sexual conduct” is presumptively inadmissible and may be
admitted only when “its probative value outweighs the inherent
danger of unfair prejudice to the [victim], confusion of issues,
unwarranted invasion of the complainant’s privacy, considerations
of undue delay and time waste and the needless presentation of
cumulative evidence.” State v. Boyd, 2001 UT 30, ¶ 41, 25 P.3d 985(alteration in original) (citation and internal quotation marks
omitted); see also Mayo v. Commonwealth, 322 S.W.3d 41, 49 (Ky.
2010) (holding, with regards to a victim’s prior sexual history, that
4. Richardson did identify what it characterized as “the most
obvious [rule] 403 argument—that the unconventional nature of
the sexual conduct involved would lead to unfair prejudice.” 2013
UT 50, ¶ 31.
20120305-CA 7 2015 UT App 17State v. Bravo
“prejudice” can include “the potential to embarrass the victim”),
cited with approval in Richardson, 2013 UT 50, ¶ 31.
¶18 Quoting State v. Dibello, 780 P.2d 1221, 1229 (Utah 1989),
Bravo argues that the presumption of inadmissibility applies only
to “‘certain categories’ of evidence specifically identified as having
‘an unusual propensity to unfairly prejudice, inflame, or mislead
the jury.’” Bravo contends that “[e]vidence of specific instances of
sexual conduct between the victim and the defendant [to show
consent] is not one of those categories.” Bravo cites a number of
Utah cases that speak of the prejudice inherent in evidence of
sexual activity with someone other than the accused. See, e.g., State
v. Martin, 2002 UT 34, ¶ 40, 44 P.3d 805. These cases do not,
however, state that evidence of sexual activity with the accused
does not share those prejudicial qualities. Indeed, the rationales
articulated for the exclusion of rule 412 evidence—safeguarding the
victim from an invasion of privacy and the potential
embarrassment that is associated with public discussion of intimate
sexual behavior—continue to have force when the accused and
victim share a sexual history.
¶19 The difference between evidence of sexual activity with the
accused and evidence of acts with a third party turns on the greater
potential for probative value that may be found in a shared sexual
history. The exceptions to rule 412’s ban on the admission of sexual
history evidence represent specific situations where the probative
value of the evidence may overcome the evidence’s prejudicial
tendencies. See Utah R. Evid. 412 advisory committee note (“The
rule permits the evidence’s admission in these designated
circumstances because the probative value of the evidence
significantly and ordinarily outweighs the possible harm to the
victim or to the fact finding process.”). Nevertheless, to be
admissible, the probative value of any particular piece of rule 412
evidence must still outweigh the dangers of prejudice inherent in
its admission. See Utah R. Evid. 403.
¶20 Because relevance is binary, rule 403 provides the
mechanism to ensure that the privacy and dignity interests of
20120305-CA 8 2015 UT App 17State v. Bravo
alleged victims are factored into the analysis. When offered to
show consent, evidence of prior sexual acts between accuser and
accused falls into a rule 412 exception. See id. R. 412(b)(2).
Richardson suggests that “contextualizing detail” about an alleged
victim’s prior sexual activity with his or her alleged abuser can also
be relevant to the issue of consent. See 2013 UT 50, ¶ 29. Rule 403
therefore represents a bulwark against “the invasion of privacy,
potential embarrassment and sexual stereotyping that is associated
with public disclosure of intimate sexual details” falling within the
exception enumerated in rule 412(b)(2). See Utah R. Evid. 412
advisory committee note.
¶21 Application of rule 403 to rule 412 evidence also protects the
fact-finding process against the danger of “confusing the issues” or
“misleading the jury.” See id. R. 403. Although the inquiry is
necessarily fact-dependent, there may well be instances where the
prior sexual history between a defendant and a victim is such that
the probative value of proffered rule 412 evidence does not
overcome the propensity of such evidence to “‘distort the jury’s
deliberative process,’” thereby confusing or misleading the jury. See
id. R. 412 advisory committee note (quoting Dibello, 780 P.2d at
1229); see also State v. Marks, 2011 UT App 262, ¶ 52, 262 P.3d 13(“Because the jury might engage in speculation about [prior sexual
incidents], admission of the evidence could result in confusion of
the issues to be decided, as well as ‘the infusion of sexual innuendo
into the fact finding process.’” (quoting Boyd, 2001 UT 30, ¶ 46)).
II. The District Court’s Rule 412 Analysis
¶22 The district court permitted Bravo to testify generally that
he and Victim had previously engaged in sexual activity, even after
their divorce. The district court explained, “Bravo should be able
to present evidence to the fact that these parties continued to have
sexual liaisons after the divorce . . . , otherwise the jury could
speculate that once they’re divorced they were separate from one
another, they had no contact.” Neither party suggests that the
district court abused its discretion by admitting that testimony.
Indeed, the district court’s decision in this respect appears
20120305-CA 9 2015 UT App 17State v. Bravo
consistent with the supreme court’s reasoning in State v. Richardson.
See 2013 UT 50, ¶ 26, 308 P.3d 526 (“[Rule 412(b)(2)] rests on the
notion that a person is more likely to consent to sex with a past
sexual partner.”).
¶23 Bravo argues that the district court abused its discretion by
not allowing him to offer additional testimony concerning his
sexual history with Victim. The history Bravo wanted to provide
can be separated into three categories: (1) testimony that the couple
engaged in unspecified “numerous other sex acts well outside this
community’s standards for sexual behavior,” as well as “pretty
much everything else one could think of” such that “the events that
happened on the night in question in this case were, if anything,
tame for what had been the norm for their relationship”; (2)
testimony concerning consensual “rough sex” including bondage,
sadomasochism, and autoerotic asphyxiation; and (3) testimony
that the couple had previously engaged in anal sex.
¶24 The district court denied Bravo’s motion, stating, “I just
don’t see the relevance and even if there is a sliver of relevance in
there, frankly, it would be my conclusion that the relevance would
be outweighed by the danger of unfair prejudice.” The district
court’s ruling thus rested on the court’s evaluation of both
relevance and the potential for unfair prejudice.
A. Relevance of the rule 412 evidence
¶25 Under the binary standard of relevance Richardson
articulated, the existence and nature of Bravo’s prior sexual
relationship with Victim are relevant to the issue of consent. See
2013 UT 50, ¶¶ 23–24; State v. Jaeger, 1999 UT 1, ¶ 13, 973 P.2d 404(“[B]ecause the standard for determining whether evidence is
relevant is so low, the issue of whether evidence is relevant is
rarely an issue.”). If nothing else, the proffered evidence
“contextualizes” Victim’s sexual relationship with Bravo. See
Richardson, 2013 UT 50, ¶ 25 (“The excluded evidence merely
added detail to that [general] knowledge. If the general evidence
of a sexual relationship was relevant, the more detailed evidence
20120305-CA 10 2015 UT App 17State v. Bravo
was as well.”). The district court therefore erred in concluding that
the additional rule 412 evidence Bravo sought to admit was not
relevant to the contested issue of Victim’s consent.5
B. The rule 403 analysis
¶26 As explained above, relevance is not the only inquiry a
district court must undertake before it admits evidence under rule
412(b)(2). The court must also ensure that the evidence is
“otherwise admissible.” Utah R. Evid. 412(b). This analysis
necessarily includes a determination that the probative value of the
evidence outweighs the danger of unfair prejudice, confusion of the
issues, or misleading the jury. See State v. Boyd, 2001 UT 30, ¶ 41, 25
P.3d 985.
¶27 Evidence offered to prove consent under rule 412(b)(2) must
consist of “specific instances of a victim’s sexual behavior with
respect to the person accused of the sexual misconduct.” Utah R.
Evid. 412(b)(2). A defendant seeking to admit such evidence must
file a motion that “specifically describes the evidence” to be
admitted. Id. R. 412(c)(1)(A). That description allows the district
court to, among other things, assess the probative value of the
evidence and balance that value against the considerations rule 403
enumerates.6
5. We note that the district court did not have the benefit of the
Utah Supreme Court’s rule 412 analysis in Richardson when it ruled
on Bravo’s motion.
6. We acknowledge that it is counterintuitive to protect alleged
victims’ privacy interests by requiring defendants to provide
sufficient information to permit the court to weigh the probative
value of the sexual history, but that is what the rule requires. The
intrusion into a victim’s privacy interests is somewhat ameliorated
by the confidential nature of a rule 412 hearing, which mandates
that allegations of prior sex acts be contained in sealed motions and
heard only in closed court unless they are ultimately deemed
(continued...)
20120305-CA 11 2015 UT App 17State v. Bravo
¶28 Bravo’s motion and oral proffer failed, in most respects, to
specifically describe the evidence he sought to introduce. The
defects in Bravo’s proffer vary with respect to each category of
prior sexual acts he wanted to put before the jury. The most glaring
defects were found in the portions of his proffer that were broad
characterizations of his sexual history with Victim. Bravo asserted
that their past sexual activities: (1) consisted of “pretty much
everything . . . one could think of”; (2) fell “well outside this
community’s standards for sexual behavior”; and (3) would make
the charged acts look “tame” in comparison.
¶29 State v. Richardson, 2013 UT 50, 308 P.3d 526, instructs that
the probative value of prior sexual history may be greater when the
prior acts are similar to the charged conduct. The Richardson court
reasoned, “If a person is more likely to consent to sex with a past
sexual partner, she is also more likely to consent to the kind of
sexual relations she has had with a partner in the past.” Id. ¶ 26.
This suggests that to determine relative probative value, a court
may assess the similarity between the sexual history and the
charged acts.
¶30 Bravo’s use of general descriptions did not give the district
court the information it needed to gauge the evidence’s probative
value. Instead, he invited the district court to consider the immense
variety of human sexual practices, focus on those practices that
would make Bravo’s charged conduct look “tame,” and conclude
that Victim’s consent to whatever that past practice might have
been was probative of whether Victim consented to the charged
acts on the night of the alleged assault.7
6. (...continued)
admissible. See Utah R. Evid. 412(c)(3) (“Unless the court orders
otherwise, the motion, related materials, and the record of the
hearing must be and remain sealed.”).
7. Bravo also stated that what he and Victim had done in the past
was “consistent” with the charged conduct. Rule 412 does not
(continued...)
20120305-CA 12 2015 UT App 17State v. Bravo
¶31 Bravo never described the required “specific instances” of
their prior practices. See Utah R. Evid. 412(b)(2), (c)(1)(a). Had
Bravo proffered, for example, that Victim had previously consented
to being struck with a fist as part of their sexual history, or that she
had previously consented to being picked up and thrown onto the
bed, the district court could have weighed the probative value of
that testimony to show consent against the evidence’s prejudicial
effects. But Bravo’s proffer of “pretty much everything else one
could think of” was unweighable. Bravo’s broad and general
descriptions prevented the district court from weighing the
probative value of the evidence against the danger of unfair
prejudice or confusion of the issues. The catch-all characterizations
that Bravo proffered failed to satisfy the “specific instances”
requirement of rule 412(b)(2), and the court did not exceed its
discretion in excluding those statements.
¶32 The next category of excluded evidence consisted of Bravo’s
proffered testimony that he and Victim had previously engaged in
consensual “rough sex” including bondage, sadomasochism, and
autoerotic asphyxiation. Although more specific than the
characterizations addressed above, this proposed testimony still
failed to provide the district court with the information it needed
to assess the prior acts’ probative value on the issue of consent. The
district court’s repeated attempts to solicit more specific
information from Bravo highlight the problems with Bravo’s
proffer.
¶33 At the pre-trial rule 412 hearing, the district court noted that
“the specificity in the motion is fairly limited” and asked Bravo’s
7. (...continued)
require a district court to accept a defendant’s assessment of
consistency at face value but instead requires the defendant to
describe the conduct specifically so that the court can make the
determination.
20120305-CA 13 2015 UT App 17State v. Bravo
counsel if he could “be more particular.”8 When Bravo’s counsel
was unable to provide any more specificity due to Bravo’s absence,
the court described the type of evidence that it would consider
admitting to prove consent:
[I]f Mr. Bravo testified that the pattern that was
engaged in [during the charged incident] was
something we did regularly before and after
marriage, and it was, it was consented to by her. We
just did this as a matter of course. This is the way we,
the way we engaged each other, that might be a little
different . . . . [I]t would be hard for Mr. Bravo to
understand that when they did it on one occasion it
wasn’t okay on the next occasion, I suppose he could
argue.
When the district court revisited the issue on the first day of trial,
the court again queried, “Is there something more specific that Mr.
Bravo could proffer today as to what this rough sex means and
what he would like to produce evidence of?” and “What
specifically is [it] that Mr. Bravo would want to introduce evidence
of? What are the practices?” Again, Bravo failed to provide the
requested specificity.
¶34 The sexual practices Bravo identified as examples of the
couple’s previous rough sex—bondage, sadomasochism, and
8. Bravo’s counsel argued that to provide the level of specificity the
State requested, “all of us would have to keep detailed sex
journals.” However, the district court expressly stated that it was
not asking for “time and date, and all those kinds of things.” The
court instructed that it wanted Bravo to proffer something along
the lines of, “[W]e met up on a certain occasion, maybe I don’t
remember the date, but we met up on some occasion and here is
what we did generally speaking.” In other words, the court wanted
Bravo to proffer enough detail to allow the court to assess both the
probative value and potential unfair prejudice of the testimony.
20120305-CA 14 2015 UT App 17State v. Bravo
autoerotic asphyxiation—encompass broad categories of sexual
behavior that may or may not be similar to Victim’s allegations. By
way of example, Bravo argued that their history of consensual
bondage demonstrated Victim’s willingness to having a dog leash
pressed against her neck. But Bravo did not describe what he
meant when he said they had engaged in bondage. Bondage could
mean having a ligature stretched around one’s neck, or it could
describe countless other variations on the theme of being
restrained. In this case, the probative value of prior instances of
consensual choking with leash-like instruments would be greater
than that of testimony that the consensual bondage involved
restraint of Victim’s hands during sex, even though both acts could
be described as bondage.
¶35 Bravo argues that his proffer that he and Victim engaged in
autoerotic asphyxiation tends to prove that Victim consented to
being choked with a dog leash. The State correctly notes the
difference between autoerotic asphyxiation, which bears little
resemblance to the charged conduct, and erotic asphyxiation,
which could conceivably describe what Victim testified occurred.
Bravo responds that everyone understood that when he proffered
testimony concerning autoerotic asphyxiation, he really meant
consensual strangulation.
¶36 The ambiguity in Bravo’s proffer underscores the
importance of the rule 412 requirement that the defendant proffer
“specific instances of a victim’s sexual behavior” and not general
categories of conduct. Even if we were to assume that Bravo meant
strangulation when he said autoerotic asphyxiation, the district
court possessed little information to weigh the probative value of
that information. Having a hand pressed on one’s throat to restrict
air flow differs from being held down by a dog leash wrapped
around one’s neck, and consent to the former may not necessarily
be probative of consent to the latter.
¶37 Similarly, without knowing more about what Bravo meant
by “rough sex,” the court could not analyze how probative that
history was to show that Victim consented to being held down by
20120305-CA 15 2015 UT App 17State v. Bravo
her throat, picked up, thrown onto a bed, and flipped over onto her
stomach. Without the detail the district court repeatedly requested,
the court was hamstrung in its ability to conduct the rule 403
analysis. See State v. Boyd, 2001 UT 30, ¶ 41, 25 P.3d 985. On this
factual record, the district court did not abuse its discretion in
denying Bravo’s rule 412 motion as to the proffered “rough sex”
evidence.
¶38 The only evidence that Bravo described with any specificity
was the type of evidence Richardson addressed—that Bravo and
Victim had previously engaged in anal sex.9 As in Richardson, one
of the charges against Bravo involved an accusation of
nonconsensual anal intercourse. Evidence that Bravo and Victim
previously engaged in anal sex would have probative value under
Richardson’s logic because that evidence would make Bravo’s
consent defense “easier to accept.” See 2013 UT 50, ¶ 42.
¶39 The district court stated as to all of the excluded evidence
that “even if there is a sliver of relevance in there . . . the relevance
would be outweighed by the danger of unfair prejudice.” See Utah
R. Evid. 403. The district court articulated its ruling in terms of “a
sliver of relevance”—which, as explained above, is out of step with
Richardson’s instruction that relevance is binary. In context,
however, the district court was referencing the probative value of
the evidence. By its express terms, rule 403 recognizes “probative
value” as something to be weighed and balanced. See Utah R. Evid.
403.
9. The rule 412 proffer in State v. Richardson was more specific than
Bravo’s proffer here and more probative to show consent because
it spoke to an established practice between the defendant and the
victim. See 2013 UT 50, ¶ 21, 308 P.3d 526. The proffer in Richardson
was that the victim had routinely engaged in anal sex with the
defendant when the victim was menstruating. That proffer closely
matched the allegations against the defendant, who was alleged to
have anally penetrated the victim while she was menstruating. See
id. ¶ 21.
20120305-CA 16 2015 UT App 17State v. Bravo
¶40 We agree with the district court that in light of the totality of
the allegations against Bravo, the evidence that he and Victim had
previously engaged in anal sex added little to prove consent in this
case. The purpose of the anal-sex evidence was to provide
contextualizing detail about the prior sexual relationship and to
suggest that Victim was more likely to have consented to anal sex
during the charged incident because she had consented to the same
act with Bravo in the past. Victim’s allegations, however, involved
much more than nonconsensual anal sex. Victim testified that the
Bravo’s assault on her began with him forcibly entering her
apartment several weeks after being told to leave and never return.
Bravo then threw Victim to the floor, choked her, raped her
vaginally, and carried her into her bedroom, where he then
penetrated her anally. When viewed in the context of the entirety
of Bravo’s alleged actions, evidence that Victim had consented to
anal sex in other circumstances would not have much probative
value to demonstrate that she had consented to it on this occasion.
¶41 By contrast, the testimony posed a significant danger of
unfair prejudice to Victim in the form of revealing intimate and
potentially embarrassing details about her sexual history. See State
v. Richardson, 2013 UT 50, ¶ 31, 308 P.3d 526 (acknowledging, with
regard to anal-sex evidence, “the most obvious 403 argument—that
the unconventional nature of the sexual conduct involved would
lead to unfair prejudice”); Boyd, 2001 UT 30, ¶ 46 (acknowledging
“the invasion of privacy, potential embarrassment and sexual
stereotyping that is associated with public disclosure of intimate
sexual details” (citation and internal quotation marks omitted)).
The evidence also raised the specter of the “infusion of sexual
innuendo into the fact finding process,” which could confuse the
issues or mislead the jury. See Boyd, 2001 UT 30, ¶ 46 (citation and
internal quotation marks omitted). In light of the low probative
value and the potential danger of unfair prejudice and confusing
the issues for the jury, the district court did not abuse its discretion
in excluding Bravo’s testimony that Victim had previously
consented to anal sex.
20120305-CA 17 2015 UT App 17State v. Bravo
CONCLUSION
¶42 Under the binary concept of relevance explained in
Richardson, the district court erred in determining that the rule 412
evidence Bravo offered was irrelevant to the issue of consent.
However, the potential danger for that evidence to create unfair
prejudice to Victim was substantial, and the probative value of the
evidence was either quite low or unweighable because of the lack
of specificity in Bravo’s proffer. The district court therefore acted
within its discretion in excluding that evidence under rule 403. We
affirm Bravo’s convictions.
20120305-CA 18 2015 UT App 17