State v. Lewis , 2020 UT App 132 ( 2020 )

2020 UT App 132THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DEVIN ERIC LEWIS,
Appellant.
Opinion
No. 20181010-CA
Filed September 24, 2020
Sixth District Court, Kanab Department
The Honorable Wallace A. Lee
No. 171600052
Gregory W. Stevens, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.
APPLEBY, Judge:
¶1 Devin Eric Lewis appeals his conviction for forcible
sodomy. He argues the district court erred in admitting trial
testimony from law enforcement personnel that he contends
wrongly bolstered the credibility of witnesses and opined on the
weight of certain evidence. He also argues the court erred when
it denied his motion for directed verdict based on insufficient
evidence. We affirm.
State v. Lewis
BACKGROUND 1
¶2 On May 27, 2017, Lewis and his wife (Wife) went to a
cabin to celebrate their wedding anniversary. They were joined
by their children, friends, and extended family, including Wife’s
stepsister (Victim).
¶3 The group arrived at the cabin around noon; the adults
soon began drinking alcohol and continued drinking throughout
the evening until around 10:30 p.m. when people started getting
ready for bed.
¶4 Concerned she would have to wait in line for the
bathroom, Victim asked a friend to accompany her to the woods
behind the cabin so she could relieve herself. On the way back to
the cabin, Victim tripped and fell to the ground. She signaled to
her friend that she was “okay,” and her friend continued to the
cabin. As Victim started to stand up, she felt someone behind
her, pulling her up. Victim was so scared that she “blacked out.”
Victim testified that when she regained consciousness, she was
lying on her back and Lewis was on top of her, “raping [her]
vaginally.”
¶5 Lewis remained on top of Victim until his phone began
ringing. As he tried to silence it, Victim used her left leg “to push
off of the ground . . . underneath him.” She was “barely able to
get loose” before Lewis “grabbed [her] shoulders,” “turned [her]
over onto [her] stomach,” and “started raping [her] anally.”
Lewis continued until his phone rang again, at which point
Victim freed herself and ran farther into the woods.
1. “We recite the facts in a light most favorable to the jury
verdict. We present conflicting evidence only when necessary to
understand issues raised on appeal.” State v. Vallejo, 2019 UT 38,
¶ 2 n.1, 449 P.3d 39 (quotation simplified).
20181010-CA 2 2020 UT App 132State v. Lewis
¶6 Wife and Victim’s friend eventually found Victim sitting
in the woods next to a fallen tree. She was “hysterically crying”
and would not explain what had happened other than to
repeatedly state, “I’m so sorry.” When Wife asked Victim if
Lewis had done this to her, she responded, “[Y]es.” Wife called
the police.
¶7 Two officers arrived on scene. One officer, a sergeant
(Sergeant), approached Victim to ask what had happened. She
was “extremely hysterical,” crying, and did not want to talk.
Eventually, she told Sergeant that on her way back to the cabin
she “tripped over a log.” While waiting for one of her friends to
assist her in getting up, Lewis “forced [her] to the ground” while
calling her name in “a soft tone voice.” Lewis proceeded “to take
off her pants” and “forcefully” have anal and vaginal sex with
her, even after she told him to stop. Victim also told Sergeant she
had been drinking and on a scale of one to ten, with one being
not at all drunk, she was “probably a seven.”
¶8 Sergeant transported Victim and one of her friends to the
hospital, which was forty-five minutes from the cabin. During
the drive, Victim never stopped crying. At the hospital Victim
complained of pain in her neck and anal area. A nurse (Nurse)
conducted a sexual assault exam that included a head-to-toe
assessment and a cervical exam. During the exam Victim was
“very withdrawn” and “didn’t make eye contact.” When asked
to explain what had happened, her response was “disjointed.”
She spoke in short sentences that did not “flow smoothly” and
she did not recount the events chronologically.
¶9 The head-to-toe assessment revealed “numerous
abrasions on [Victim’s] back and her lower legs,” “tenderness to
the base of her spine,” and “new bruise[s] forming on her upper
arm.” At trial Nurse testified that these findings were consistent
with Victim’s account that she “was thrown to the ground” and
“held down.”
20181010-CA 3 2020 UT App 132State v. Lewis
¶10 Nurse also testified that the injuries found during
Victim’s cervical exam were consistent with her statement that
she was held “against the ground [while] being penetrated.”
Specifically, Nurse found a stick and a brown smear in Victim’s
perineal area; debris that looked like bark in her cervix; and dark
spots and light brown staining around her anus that could be
blood, stool, or clumps of dirt. Victim’s vagina and perineum
had a “slit” and several abrasions.
¶11 The State charged Lewis with rape and forcible
sodomy, both first-degree felonies, and intoxication, a class-C
misdemeanor. At trial, Sergeant testified for the State about his
interactions with Victim on the night of the incident. Sergeant
further testified about his experience working on cases involving
“either sexual assault victims or victims that have experienced a
lot of trauma.” He opined that based on his training and
experience working on between 200 and 300 assault cases,
victims’ accounts of an incident commonly vary. Lewis objected
to this testimony, arguing that it was “bolstering” because
Sergeant was “essentially testifying that any victim who has a
story that’s not consistent is still to be believed.” The district
court overruled the objection, reasoning that Sergeant could
answer “based on his training and experience.”
¶12 A detective (Detective) also testified for the State and
explained that over the course of his career, he investigated
hundreds of sexual assault cases and interviewed hundreds of
sexual assault victims. When the State asked whether there are
variations when victims give multiple accounts of their assaults,
Detective explained that variations occur and “can be” common
“depend[ing] on the level of trauma.” Lewis objected, arguing
there was no foundation for Detective to “opine on how people
behave.” The court overruled the objection, reasoning that
Detective was qualified to give that opinion based on his
experience conducting “hundreds of these interviews before.”
Then Detective testified he was not surprised to hear “some
20181010-CA 4 2020 UT App 132State v. Lewis
slight variations” between Victim’s accounts of the assault.
Lewis did not object to this testimony.
¶13 Lewis testified in his own defense, claiming that he
engaged in vaginal and anal intercourse with Victim and that the
activity was consensual. He testified that he and Victim were in
the woods together and were “really drunk.” They “started
kissing” then began having sex after they “tripped and fell” and
“couldn’t stand up.” But Lewis was unsure how he and Victim
became undressed, nor could he recall what positions they were
in when they had sex or whether the vaginal or anal sex came
first. Nor could he remember any phone calls or reaching for his
phone, and he admitted he and Victim exchanged no words
during the encounter. On cross-examination, Lewis testified he
could not remember “intentionally” having anal sex with Victim
and stated he was unsure whether they kissed while having anal
sex.
¶14 After the close of the State’s case, Lewis moved for a
directed verdict on all counts, asserting the State failed to “make
a prima facie case.” The district court denied the motion, and the
jury convicted Lewis of forcible sodomy and intoxication, but
acquitted him of rape. Lewis timely appeals his forcible sodomy
conviction.
ISSUES AND STANDARDS OF REVIEW
¶15 Lewis first argues the district court erred in admitting
testimony from Sergeant and Detective that he claims
impermissibly bolstered Victim’s credibility and opined on the
weight of the evidence. We review preserved claims challenging
the district court’s admission of testimony for an abuse of
discretion. State v. Iorg, 801 P.2d 938, 939 (Utah Ct. App. 1990).
We consider unpreserved claims only if the defendant identifies
an applicable exception to the preservation rule. State v. Cegers,
20181010-CA 5 2020 UT App 132State v. Lewis
2019 UT App 54, ¶ 17, 440 P.3d 924; see also State v. Johnson, 2017
UT 76, ¶¶ 18–19, 416 P.3d 443.
¶16 Lewis next argues the district court erred when it denied
his motion for directed verdict based on insufficient evidence.
“We review a [district] court’s ruling on a motion for directed
verdict for correctness.” State v. Gonzalez, 2015 UT 10, ¶ 21, 345
P.3d 1168. “We will uphold the [district] court’s decision if, upon
reviewing the evidence and all inferences that can be reasonably
drawn from it, we conclude that some evidence exists from
which a reasonable jury could find that the elements of the crime
had been proven beyond a reasonable doubt.” State v. Montoya,
2004 UT 5, ¶ 29, 84 P.3d 1183 (quotation simplified).
ANALYSIS
I. Trial Testimony of Sergeant and Detective
¶17 Lewis first argues the district court improperly admitted
the testimony of Sergeant and Detective in which they
(A) “bolstered the credibility of [Victim]” and (B) “opined about
the weight of the evidence and guilt of [Lewis].” 2 We address
each argument in turn.
2. Our conclusion that the testimony did not violate rule 608(b)
of the Utah Rules of Evidence should not be misinterpreted as a
determination that the evidence was necessarily admissible.
Such evidence potentially runs afoul of State v. Rammel, 721 P.2d
498 (Utah 1986), and State v. Iorg, 801 P.2d 938 (Utah Ct. App.
1990), which exclude anecdotal statistical evidence concerning
matters not susceptible to quantitative analysis, especially where
no statistics or analysis are proffered. See Rammel, 721 P.2d at
501; Iorg, 801 P.2d at 941. Additionally, when expressed in the
form of an opinion based on training and experience, rule 702 on
(continued…)
20181010-CA 6 2020 UT App 132State v. Lewis
A. Improper Bolstering
1. Sergeant’s Testimony Regarding the Prevalence of
Variations in Witness Statements
¶18 Lewis asserts the district court erred in admitting
Sergeant’s testimony that sexual assault victims commonly give
multiple statements and those statements commonly have
variations. Lewis argues this testimony improperly bolstered
Victim’s credibility in violation of rule 608(a) of the Utah Rules
of Evidence and that Sergeant’s testimony in this regard was
prejudicial. We disagree.
¶19 At trial, Sergeant testified about his training and
experience working with assault victims. He testified he had
attended multiple sexual assault trainings and had worked on
“upwards of 500” cases involving “sexual assault victims or
victims that have experienced a lot of trauma.”
¶20 After eliciting testimony about Sergeant’s experience, the
State asked him whether the victims in these cases “have to give
their account multiple times,” to which he responded, “Yes.”
The State then asked, “[I]s it common for victims’ accounts to
(…continued)
expert testimony may come into play. And as with all evidence,
objections might be raised as to relevance or because this type of
testimony may have little probative value that could be
substantially outweighed by the danger of unfair prejudice. See
Utah R. Evid. 401; id. R. 403; State v. Burnett, 2018 UT App 80,
¶ 36, 427 P.3d 288 (“Much of [the e]xpert’s trial testimony in this
case is inadmissible [bolstering] . . . because its potential for
prejudice substantially outweighs its probative value.”
(quotation simplified)); Iorg, 801 P.2d at 941 (holding the district
court erred in allowing bolstering testimony because it was not
more probative than prejudicial).
20181010-CA 7 2020 UT App 132State v. Lewis
sometimes have variations?” Lewis objected, arguing the
question implied “that any victim who has a story that’s not
consistent is still to be believed and that’s just bolstering.” The
district court overruled the objection, reasoning that Sergeant
could answer “based on his training and experience.” Sergeant
responded, “That is correct . . . .” The State concedes that Lewis’s
trial objection was sufficiently specific to preserve this issue for
our review.
¶21 It is the exclusive province of the jury to determine the
credibility of witnesses. E.g., State v. Thompson, 2014 UT App 14,
¶ 64, 318 P.3d 1221. Although rule 608 “permits testimony
concerning a witness’s general character or reputation for
truthfulness,” it “prohibits any testimony as to a witness’s
truthfulness on a particular occasion.” State v. Adams, 2000 UT
42, ¶ 11, 5 P.3d 642 (quotation simplified). Accordingly,
admission of testimony that bolsters the credibility of another
witness’s testimony on a particular occasion is improper. And
when such testimony is prejudicial, its admission requires
reversal. State v. Boyle, 2019 UT App 28, ¶ 16, 440 P.3d 720.
¶22 This court recently addressed bolstering testimony in
State v. Cegers, 2019 UT App 54, 440 P.3d 924. In that case, the
defendant was convicted of sexually abusing his girlfriend’s
daughter. Id. ¶ 1. On appeal, he challenged the district court’s
admission of testimony from the victim’s high school counselor,
arguing that it impermissibly bolstered the victim’s credibility.
Id. ¶ 2. At trial, the “counselor testified that she did not believe
that [the victim] fabricated the allegations against Cegers to
receive a school scholarship.” Id. This court held that “[b]ecause
this testimony offered an opinion as to [the victim’s] truthfulness
on a particular occasion, it constituted impermissible
bolstering.” Id.
¶23 The holding in Cegers is consistent with other cases in
which this court has found bolstering. For example, in State v.
20181010-CA 8 2020 UT App 132State v. Lewis
Stefaniak, 900 P.2d 1094 (Utah Ct. App. 1995), this court held it
was improper to admit testimony from a social worker that the
victim “seemed to be quite candid” when describing the
defendant’s conduct. Id. at 1095. It reasoned that the social
worker’s description of the victim as “candid” improperly
suggested the victim “was an open, honest, and credible
witness.” Id.¶24 Similarly, in State v. Bragg, 2013 UT App 282, 317 P.3d 452,
an officer testified that the victim in an aggravated-sexual-abuse-
of-a-child case appeared “genuine” during her police interview.
Id. ¶ 31. This court held that the testimony constituted an
improper direct comment on the victim’s truthfulness on a
specific occasion in contravention of rule 608(a). Id.
¶25 In contrast, in State v. Adams, 2000 UT 42, 5 P.3d 642, a
psychologist testified regarding a sexual abuse victim’s general
cognitive ability and opined that it was “probably not likely” she
“could be coached to tell, or was sophisticated enough to make
up, the story alleged [t]here.” Id. ¶¶ 6, 11, 13. Our supreme court
held the testimony did not run afoul of rule 608, stating that the
rule “only bars direct testimony regarding the truthfulness of a
witness on a particular occasion.” Id. ¶ 14 (quotation simplified).
The court further observed that the witness in that case (1) “did
not offer a direct opinion of [the victim’s] truthfulness,” (2) “did
not offer a subjective credibility determination that [the victim]
was telling the truth,” and (3) did not “completely rule out the
possibility that [the victim] could have lied about th[e] incident.”
Id. ¶ 13. Based on those observations, the court held the
testimony was “not the equivalent of an affirmative statement
that [the victim] was in fact telling the truth about the alleged
abuse.” Id.
¶26 This case is distinguishable from Cegers, Stefaniak, and
Bragg but is similar to Adams. Unlike the witnesses in Cegers,
Stefaniak, and Bragg, Sergeant did not opine about Victim’s
20181010-CA 9 2020 UT App 132State v. Lewis
truthfulness on a particular occasion. Rather, he testified only
that in his professional experience, it is not uncommon to see
variations in the statements of victims who give multiple
accounts of their assault. Unlike the counselor in Cegers, Sergeant
did not testify that Victim did not fabricate her allegations.
Unlike the witness in Stefaniak, Sergeant did not describe Victim
as “candid.” And unlike the witness in Bragg, Sergeant did not
describe Victim as “genuine.” 3 In each of those cases, the
testimony held to constitute impermissible bolstering included
the witness’s opinion as to “the truthfulness of a witness on a
particular occasion.” Id. ¶ 14 (quotation simplified). In contrast,
here, Sergeant merely described his observation that in other
cases there are often variations among a victim’s statements
when multiple accounts are given. As in Adams, he did not
directly opine on Victim’s credibility, he did not offer a
subjective credibility determination that Victim was telling the
truth, and he did not rule out the possibility that Victim could
have been untruthful. It was left to the jury to determine
whether Victim was telling the truth in her differing accounts,
informed by the knowledge that varying accounts are not
uncommon in similar circumstances.
2. Detective’s Testimony Regarding Variations in Witness
Statements
¶27 Sergeant was not the only witness to testify about
the variations in multiple statements made by victims of
sexual abuse. The State also called Detective as a
witness. Detective testified he had interviewed hundreds of
victims of sex crimes over his decades-long career. He
explained that “depend[ing] on the level of trauma,” when a
victim gives multiple accounts of an assault it “can be” common
3. Indeed, the prosecution asked questions directly on these
points, and Lewis’s objections thereto were sustained.
20181010-CA 10 2020 UT App 132State v. Lewis
for those accounts to vary, and he was not surprised to hear
there were “some slight variations” between Victim’s accounts
of the assault. Lewis objected based on a lack of foundation. He
did not object that Detective’s comments were improper
bolstering. But on appeal, Lewis asserts that Detective’s
testimony regarding his observation of variations among
victims’ statements constituted improper bolstering. The State
responds that Lewis failed to preserve this argument in the
district court. We agree.
¶28 To preserve an argument of error in the admission
of testimony for appeal, “a defendant must raise a timely
objection to the [district] court in clear and specific terms.”
State v. Smedley, 2003 UT App 79, ¶ 10, 67 P.3d 1005(quotation simplified). “Importantly, the grounds for the
objection must be distinctly and specifically stated.” Id.(quotation simplified). If an objection is made but does not
include a specific ground, that “theory cannot be raised on
appeal.” Id. (quotation simplified). And absent a claim that
“plain error or exceptional circumstances justify our review,
the issue is waived.” State v. Martin, 2017 UT 63, ¶ 26, 423 P.3d
1254.
¶29 Lewis makes two passing references to plain error with
regard to his bolstering challenge. “To prevail on a plain error
claim, an appellant must show that (i) an error exists; (ii) the
error should have been obvious to the [district] court; and (iii)
the error is harmful . . . .” State v. Almaguer, 2020 UT App 117,
¶ 11 (quotation simplified). And although Lewis asserts error
and resulting harm, he does not argue why the alleged error
should have been obvious to the district court. We therefore do
not address these inadequately briefed claims. See State v.
Waldoch, 2016 UT App 56, ¶ 6, 370 P.3d 580 (declining to
undertake plain error review where the appellant “fail[ed] to
explain why th[e] alleged error should have been obvious to the
[district] court”).
20181010-CA 11 2020 UT App 132State v. Lewis
¶30 Because Lewis does not argue that plain error or
exceptional circumstances justify our review, the issue is waived.
B. Sergeant’s and Detective’s Testimonies Regarding the
Weight of the Evidence
¶31 Lewis next asserts the district court erred in admitting
testimony from both Sergeant and Detective as to the weight of
the evidence and their opinions on his guilt. The State responds
that Lewis failed to preserve either of these claims and, in any
event, the court did not err in admitting the challenged
testimony. Finally, the State asserts that even if the court erred in
admitting the testimony, Lewis cannot establish prejudice. We
agree with the State.
¶32 Appellate courts “generally will not consider an issue
unless it has been preserved for appeal.” Patterson v. Patterson,
2011 UT 68, ¶ 12, 266 P.3d 828. “An issue is preserved for appeal
when it has been presented to the district court in such a way
that the court has an opportunity to rule on it.” State v. Johnson,
2017 UT 76, ¶ 15, 416 P.3d 443 (quotation simplified). “To
provide the court with this opportunity, the issue must be
specifically raised by the party asserting error, in a timely
manner, and must be supported by evidence and relevant legal
authority.” Id. (quotation simplified). “A proper objection puts
the judge on notice of the asserted error and allows the
opportunity for correction at that time in the course of the
proceeding.” State v. Dean, 2004 UT 63, ¶ 13, 95 P.3d 276(quotation simplified).
¶33 At trial, Sergeant was questioned about evidence he
collected from Lewis as Lewis was booked into jail. Sergeant
testified he took pictures of Lewis and his clothing and observed
what appeared to be blood and feces on the clothing, but he did
not perform forensic tests to confirm his suspicions. The State
then asked, “With all the interviews you did and the pictures
and everything . . . , was there anything . . . that you felt like was
20181010-CA 12 2020 UT App 132State v. Lewis
either inconsistent or would cause you concern about there
being a sexual assault?” Lewis objected, arguing the question
“goes to the ultimate issue” and “that’s a province for the jury.”
The district court overruled the objection, reasoning that the
answer “has to do with [Sergeant’s] investigation about what his
beliefs were in his investigation,” and that it was “not calling for
him to talk about whether anyone was truthful or untruthful,”
which was the jury’s “decision to make.”
¶34 Similarly, during Detective’s redirect examination, the
State inquired whether there was “anything fishy or out of the
ordinary at the conclusion of [Detective’s] investigation that
would have caused [him] not to charge [Lewis].” Detective
responded, “No,” and Lewis did not object.
¶35 Based on the foregoing, we conclude Lewis did not
preserve the claims he now raises. On appeal, he argues the
court erred in admitting testimony from Sergeant and Detective
because their testimony constituted improper comments on the
evidence. But he did not raise that objection to the district court.
Lewis did not object to the question asked of Detective, and his
only objection to the question asked of Sergeant was that it went
“to the ultimate issue,” which is “a province for the jury.” But he
does not argue the same on appeal.
¶36 Because Lewis did not preserve the objections to
Detective’s and Sergeant’s testimonies he now raises, we review
them only for plain error. See Patterson, 2011 UT 68, ¶ 13. As
explained above, to demonstrate plain error, Lewis must
establish that “(i) an error exists; (ii) the error should have been
obvious to the [district] court; and (iii) the error is harmful.”
State v. Almaguer, 2020 UT App 117, ¶ 11 (quotation simplified).
“If any one of these requirements is not met, plain error is not
established.” Dean, 2004 UT 63, ¶ 15 (quotation simplified).
¶37 Because Lewis must satisfy all three requirements to
succeed on his claim, we do not reach the issue of whether the
20181010-CA 13 2020 UT App 132State v. Lewis
testimony was improperly admitted, because he has failed to
demonstrate that any alleged error was harmful. For an error to
be harmful, it “must be shown to have been of such a magnitude
that there is a reasonable likelihood of a more favorable outcome
for the defendant.” Johnson, 2017 UT 76, ¶ 21 (quotation
simplified). This test “is equivalent to the prejudice test applied
in assessing claims of ineffective assistance of counsel.” Dean,
2004 UT 63, ¶ 22. “In determining if the [error] was prejudicial,
we determine whether there is a reasonable probability that, but
for the alleged error, the outcome in the case would have been
different.” Johnson, 2017 UT 76, ¶ 21 (quotation simplified).
¶38 Lewis asserts “there is more than a reasonable likelihood
that, absent the admission of . . . the improper testimony of
[Sergeant] in which he opines about the evidentiary support for
the charges, there would have been a more favorable result.”
This is so, he argues, because the State’s case against him
“hinged almost entirely on the credibility of” Victim’s testimony
and “[n]o one could corroborate . . . her story as the sole witness
to the alleged incident.”
¶39 We disagree. Lewis admitted having vaginal and anal sex
with Victim. Thus, the only contested issues at trial were
whether he acted without Victim’s consent and whether he was
at least reckless as to her lack of consent. 4 And there was ample
evidence supporting Victim’s testimony as to each issue.
4. To convict Lewis of forcible sodomy, the jury was required to
find that he “[i]ntentionally, knowingly, or recklessly” had anal
sex with Victim “without [her] consent” and that he “acted with
intent, knowledge or recklessness” with regard to her lack of
consent. See Utah Code Ann. § 76-5-403 (LexisNexis Supp. 2019);
id. § 76-2-101.
20181010-CA 14 2020 UT App 132State v. Lewis
¶40 First, several witnesses testified regarding Victim’s
emotional state after she was discovered in the woods following
her encounter with Lewis. Two of Victim’s friends, who had
known Victim “her whole life,” testified that her behavior was
unusual. One friend explained that Victim was “hysterical” and
she had “never seen [Victim] the way she was that night.” The
other friend similarly testified she had never seen Victim so
frightened. And Wife testified that when she found Victim,
Victim was “completely terrified,” “crying,” and did not want
anyone to approach her. Indeed, after observing Victim’s
emotional state—but before asking her for details about what
happened—Wife confronted Lewis, asking if he had “just
rap[ed]” Victim. The clear inference from these observations of
Victim’s emotional state following the encounter with Lewis was
that it was traumatic and not consensual.
¶41 Second, Nurse testified that her findings from Victim’s
sexual assault exam were consistent with Victim’s statement that
she was held against the ground and penetrated. Specifically,
Victim had “numerous abrasions on her back and her lower
legs,” “tenderness to the base of her spine,” “new bruise[s]
forming on her upper arm,” and “a lot of debris on her clothes
and in her hair.” Further, Victim’s vagina was covered with
multiple abrasions and a “slit,” injuries that typically occur
when a vagina is not adequately lubricated, and are “more likely
. . . if the individual is less prepared for what’s happening.”
¶42 Third, Lewis’s own testimony regarding the encounter
suggested a lack of consent and certainly gave rise to the
inference that he was at least reckless with regard to Victim’s
lack of consent. It was clear from Lewis’s testimony that he was
severely intoxicated at the time of the incident. He testified he
and Victim walked toward one another, met and “started
kissing,” but then tripped and fell and were unable to stand up
again because they were drunk. But Lewis was unable to recall
what positions they were in when they had sex, could not recall
20181010-CA 15 2020 UT App 132State v. Lewis
if the vaginal or anal sex came first, and could not even
remember receiving any phone calls or reaching for his phone.
Lewis admitted he and Victim exchanged no words but
maintained they were kissing the entire time. On cross-
examination, Lewis could not even remember having anal sex
with Victim and stated he was unsure if they kissed while
having anal sex.
¶43 The jury was not faced with considering Victim’s
credibility in a vacuum. The evidence describing Victim’s
traumatized emotional state, as well as physical evidence
obtained from her medical exam, was compelling and
corroborated her testimony that she did not consent to the anal
sex and Lewis was at least reckless with regard to her lack of
consent. And Lewis’s own testimony was devoid of any credible
suggestion that Victim in fact consented. We therefore conclude
there is no reasonable likelihood that the outcome would have
been different if the disputed testimony had been excluded. As a
result, Lewis has not established prejudice and his claim fails.
II. Sufficiency of the Evidence
¶44 Lewis next argues the district court erred when it denied
his motion for directed verdict based on insufficient evidence.
He contends Victim’s testimony contained “substantial
inconsistencies and conflicts as [to] a material element of the
crime charged” and the evidence accordingly was insufficient to
support the verdict. The State contends this argument is
unpreserved because Lewis failed to sufficiently develop it when
he moved the district court for a directed verdict.
¶45 We disagree with the State’s preservation argument.
Lewis moved for a directed verdict in the district court, arguing
that the State failed “to make a prima facie case on all three
counts.” The court denied the motion, reasoning that based on
the evidence, “the State ha[d] made a prima facie case for each of
the crimes charged, rape, forcible sodomy, and intoxication.” In
20181010-CA 16 2020 UT App 132State v. Lewis
so ruling, the court plainly recognized that it understood Lewis’s
motion as specifically addressing the sufficiency of the evidence
supporting the forcible sodomy charge. Because the court was
given the opportunity to rule on the issue Lewis now raises on
appeal, it was properly preserved. See State v. Noor, 2012 UT App
187, ¶ 5, 283 P.3d 543. We accordingly review Lewis’s claim that
the evidence on lack of consent was insufficient to support the
jury’s verdict on the merits. 5
5. Citing State v. Robbins, 2009 UT 23, 210 P.3d 288, Lewis also
suggests in passing that we may reverse a jury verdict when “the
evidence is sufficiently inconclusive or inherently improbable
such that reasonable minds must have entertained a reasonable
doubt that the defendant committed the crime for which he or
she was convicted.” See id. ¶ 14. It is unclear whether this
reference constitutes an attempt to argue that the inconsistencies
in Victim’s statements rendered her testimony “inherently
improbable.” To the extent it constitutes such an attempt, the
issue is unpreserved. This court has recently recognized that a
claim under Robbins “that a particular witness’s testimony is
inherently improbable is not the same as a claim that the State’s
evidence is insufficient.” State v. Skinner, 2020 UT App 3, ¶ 24,
457 P.3d 421; see also State v. Doyle, 2018 UT App 239, ¶ 19, 437
P.3d 1266. When a defendant “raises a general sufficiency
challenge,” he “asks [the] court to examine the evidence,
including all inferences that can be reasonably drawn from it, to
determine if some evidence exists that could support the
verdict.” Skinner, 2020 UT App 3, ¶ 25 (quotation simplified). In
contrast, when making a Robbins claim, a defendant asks the
court to disregard a particular witness’s testimony as “inherently
improbable” when determining whether there is sufficient
evidence for a conviction. Robbins, 2009 UT 23, ¶ 13. Thus, when
a defendant raises a Robbins claim in the context of a motion for
directed verdict arguing insufficiency, he asks the court to
(continued…)
20181010-CA 17 2020 UT App 132State v. Lewis
¶46 When reviewing a preserved challenge to a directed
verdict ruling, we apply a “highly deferential” standard of
review. State v. Nielsen, 2014 UT 10, ¶ 30, 326 P.3d 645.
Accordingly, to successfully challenge a district court’s denial of
a motion for directed verdict, a defendant must establish that,
when viewed in the light most favorable to the court’s ruling, no
evidence “exists from which a reasonable jury could find that the
elements of the crime had been proven beyond a reasonable
doubt.” State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (quotation
simplified). “If there is any evidence, however slight or
circumstantial, which tends to show guilt of the crime charged or
any of its degrees, it is the [district] court’s duty to submit the
case to the jury.” Id. ¶ 33 (quotation simplified).
¶47 Lewis argues the evidence was insufficient to support the
verdict because there were inconsistencies between Victim’s trial
testimony and her statements to Sergeant and Nurse on the
night of the assault. With one exception, these alleged
inconsistencies do not go to the issue of consent, which was the
only contested issue at trial. 6 The sole inconsistency Lewis
(…continued)
disregard the witness’s testimony “before analyzing the
sufficiency of the State’s evidence.” Skinner, 2020 UT App 3, ¶ 27
(quotation simplified). Because Lewis’s directed verdict motion
was general, asserting only that the State failed “to make a prima
facie case on all three counts,” he did not preserve any specific
inherent improbability claim. Accordingly, to the extent he seeks
to raise such a claim now, we decline to address it.
6. For example, Lewis argues that Victim’s statements were
inconsistent regarding the initiation of the encounter, whether
Victim initially passed out, and the order of the vaginal and anal
intercourse. None of these inconsistencies go to the disputed
issue of consent.
20181010-CA 18 2020 UT App 132State v. Lewis
identifies on the issue of consent is between Victim’s trial
testimony that she did not scream because she was shocked and
scared and hurt for her stepsister and Victim’s statement to
Sergeant on the night of the assault that she told Lewis to
“Stop!”7 But we do not agree with Lewis that these statements
necessarily are inconsistent. Because screaming is not the same
as telling someone to stop, Victim’s testimony that she did not
scream because she was frightened and did not want to hurt her
stepsister is not inconsistent with her testimony that she told
Lewis to stop.
¶48 Moreover, even inconsistent testimony on material issues
does not require reversal. The jury serves as the “exclusive judge
of both the credibility of witnesses and the weight to be given
particular evidence.” State v. Workman, 852 P.2d 981, 984 (Utah
1993); see also State v. Rivera, 2019 UT App 188, ¶ 34, 455 P.3d 112(explaining that “the existence of a conflict in the evidence does
not render the totality of the evidence insufficient” (quotation
simplified)). Accordingly, we are not entitled to “reweigh the
evidence” or “reassess” witness credibility. Workman, 852 P.2d at
984. This is particularly true where, as here, the jury could
interpret the inconsistencies as the result of Victim’s trauma and
her distressed emotional state following the assault. See State v.
Kirby, 2016 UT App 193, ¶ 23, 382 P.3d 644 (recognizing that any
discrepancies in an assault victim’s account of what happened
“could readily be interpreted by the jury as resulting from the
trauma she experienced, rather than as suggesting that she was
not a credible witness”).
7. Lewis also points out that during her physical exam, Victim
did not tell Nurse that she fought back, screamed, or told Lewis
to stop. But the fact that Victim did not volunteer this
information to Nurse is not necessarily inconsistent with either
of the statements she made about her response to the assault.
20181010-CA 19 2020 UT App 132State v. Lewis
¶49 Finally, even if there were material inconsistencies in
Victim’s statements, substantial evidence corroborated her
testimony that she did not consent and that Lewis was at least
reckless in assessing the absence of consent. As described above,
numerous witnesses testified about Victim’s distressed
emotional state following the encounter, the evidence from the
physical exam suggested lack of consent, and the reasonable
inference from Lewis’s own trial testimony was that he was too
intoxicated to ascertain whether Victim consented to anal
intercourse. Although Lewis testified on direct examination that
he did not recall whether anal or vaginal intercourse came first,
on cross-examination he testified he did not remember engaging
in anal intercourse at all.
¶50 After considering the evidence in the light most favorable
to the district court’s ruling, we conclude there was ample
evidence from which a reasonable jury could find that the State
met its burden of proving the elements of forcible sodomy
beyond a reasonable doubt. We therefore reject Lewis’s claim
that the evidence was insufficient to support the jury’s verdict
and affirm the court’s denial of his motion for directed verdict.
CONCLUSION
¶51 Lewis’s claim that Sergeant’s trial testimony improperly
bolstered Victim’s testimony fails on the merits. He failed to
preserve his claim that Detective’s trial testimony likewise
bolstered Victim’s testimony and he has waived the claim. Lewis
did not preserve his claims that both Sergeant’s and Detective’s
testimonies contained improper comments on the weight of the
evidence, and we conclude the district court did not plainly err
in admitting their testimonies. We also conclude the court
properly denied Lewis’s motion for directed verdict on the
forcible sodomy charge.
¶52 Affirmed.
20181010-CA 20 2020 UT App 132