Posts Tagged ‘sexual assault’

Utah Supreme Court Changes How Prior Offenses Admitted in Court

 

The Utah Supreme Court issued an opinion last week in State v. Verde that changes how trial courts will look at prior bad acts by a defendant before they are admitted at trial.Giant Gavel

The Case

In 2005, Mr. James Eric Verde was charged with the sexual abuse of a twelve-year-old child.  During the trial, the prosecution was allowed to bring in evidence of previous allegations made by other two other males against Mr. Verde. Mr. Verde was convicted and appealed to the Utah Court of Appeals. In Utah, prior bad acts by a defendant are admissible so long as the prosecution can show that they are not using the evidence just to show that the defendant has a bad character and acted according to that bad character. The court of appeals found that because Mr. Verde had plead not guilty to the crime, the prosecution was allowed to bring up the prior allegations to help prove that Mr. Verde intended the sexual abuse. This is known as the “not guilty rule.”

The Utah Supreme Court Opinion

The Utah Supreme Court uniformly rejected the “not guilty rule.” The court said, “[a] not-guilty plea technically puts every element of a crime at issue” so under the “not guilty rule” prior bad acts would always be admissible to help prove some element of the crime. The court found that there needs to be more than just a not guilty plea to admit prior bad act evidence. Specifically, the court looked at what Mr. Verde’s claimed defenses were and found that he had not argued that he didn’t have the intent to commit sexual abuse–Mr. Verde had argued that he hadn’t committed the crime at all. Because of this error, the Utah Supreme Court ordered that Mr. Verde be given a new trial and the prosecution will have to try and give the trial court a different reason to admit the prior allegations of abuse.

The Doctrine of Chances

The supreme court also introduced a new way to look at prior bad acts by a defendant before admitting them at trial: the “doctrine of chances.” Under this doctrine, the more times similar events occur, the likelihood that these events are just coincidence becomes lower. So, to use the court’s example, the probability that an innocent person would be accused of sexual assault multiple times is fairly low. To help in analyzing whether prior bad acts should be admitted in a trial under the “doctrine of chances,” the supreme court told trial courts to look at: (1) what elements of the crime are disputed by the defense; (2) whether the prior acts are “roughly similar to the charged crime”; (3) whether the prior bad acts are independent of each other and the charged crime; and (4) how many times the independence acts are said to have occurred.

For the full opinion, click the link: Verde.

What this Means for Defendants

It remains to be seen how trial courts will interpret and use the doctrine of chances in future trials. Having a prior conviction or being previously accused of a criminal act can be very difficult evidence for a defendant to overcome at trial. Many defendants are not even aware that prior accusations, not just prior convictions, may be used against them in future trials. Having an experienced criminal defense attorney to make a strong argument to keep that evidence out can make a big difference!

Aggravated Kidnapping and Sexual Assault in Utah

Utah Criminal Defense Blog, on the topic of  Utah Crime News
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A Utah man is facing several criminal charges including aggravated kidnapping and sexual assault following an incident with a female coworker in the man’s home.

The Allegations

The story goes that the two coworkers went to the man’s home after work, had a few drinks and the woman went to rest in the man’s bedroom. She woke up with him allegedly on top of her and handling her in a sexual manner.

At some point, he supposedly hit her and pushed or threw her down some stairs. He was also in possession of a gun and refused to let her leave his home. Somewhere along the way she escaped and got a hold of police.

When police arrived, they found drugs and a gun. The accused has been charged with aggravated kidnapping, sexual assault, assault, drug charges and possession of a gun (by a restricted person.)

Each charge on its own is serious, but this man is looking at a first-degree and two second-degree felonies as well as a bunch of misdemeanor charges. We hope he has a top Utah criminal defense attorney representing him.

It Can be Tempting to Judge

Not knowing the complete story, it would be wrong to make any judgments at this point. It’s always a little confusing when a man, a woman, a bed and drinking are involved in a situation. It can be hard to pinpoint exactly who is at fault or to blame for an altercation.

That’s why you need to have a Utah criminal defense attorney on your side if you are charged with any criminal acts. Don’t leave your freedom and reputation to chance. Take the time to find an attorney you are comfortable with and who will defend you to the fullest extent possible.

Utah Woman Attacked, Sexually Assaulted While Jogging

Utah Criminal Defense Blog, on the topic of  Utah Crime News
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A young woman was recently attacked and sexually assaulted while she was jogging alone along the Provo River Trail. The woman was confronted by a person she described as a Caucasian or Hispanic male, dragged from the trail and sexually assaulted. She also reported that the perpetrator had a knife which caused an undesignated number of injuries on her. The man is believed to be around 6 feet tall and 180-190 pounds.

Photo: Scott Akerman

Woman Sexually Assaulted Along Provo River Trail in 2010

The Provo River Trail was the scene of another attack in June 2010. That victim, also a woman, was raped and beaten but fortunately survived the ordeal. The perpetrator in that incident was caught and tried and is currently serving a life sentence in the Utah State Prison without the possibility of parole.

Use of Dangerous Weapon Can Aggravate Criminal Charge

When a person uses, or threatens to use, a dangerous weapon in the course of a rape, object rape, forcible sodomy or forcible sexual abuse, that person can be charged with aggravated sexual assault. Aggravated sexual assault is a first-degree felony which can carry a variety of punishments depending on whether or not the offender has had any previous convictions for grievous sexual offenses. Some sentences include a minimum 15 years in prison, life imprisonment or a life sentence without the possibility of parole.

Get a Running-Buddy

A word of caution to joggers of both genders: don’t go out alone. The old saying that “there is safety in numbers” still holds true. Also, when you do go for a run with a friend or two, try to stick to well-lit places or daylight times if possible.

You Deserve an Experienced Utah Criminal Defense Attorney

Our last piece of advice for today applies to anyone who has been charged with a crime or who thinks he may be charged with a crime: contact a Utah criminal defense attorney without delay. You needn’t wait until the police knock on your door to get receive counsel from an experienced criminal defense attorney. Call an attorney today and work towards regaining your piece of mind.

In Utah, Failure to Report Child Sex Abuse is a Crime

Clayton Simms, Criminal Defense Attorney, on the topic of  Question
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Under Utah state law, sexual assault of a child must be reported to law enforcement, something prosecutors are alleging a Mormon bishop neglected to do. The bishop reportedly counseled a teenage girl from his congregation to not report a sexual assault where she says that she was the victim. The girl told her parents about the alleged assault after talking to her bishop, at which point her parents filed a complaint with local authorities.

Criminal Charges

Photo: UggBoy/UggGirl

Now, the bishop has been charged with witness tampering and failure to report child abuse. Witness tampering is a third-degree felony and is punishable by up to five years in prison. Failure to report child abuse is a class B misdemeanor, and if an individual is found guilty, that person could serve up to six months in jail.

Reporting Child Abuse

In Utah, any suspected abuse of a child requires mandatory reporting to law enforcement. Concerning clergy, Utah law states that, “When a clergyman or priest receives information about abuse or neglect from any source other than confession of the perpetrator, the clergyman or priest is required to give notification on the basis of that information even though the clergyman or priest may have also received a report of abuse or neglect from the confession of the perpetrator.”

It would be imprudent to make a judgment without knowing the bishop’s side of the story. We don’t know exactly what the girl told the bishop about the alleged assault.

Who’s the Real Criminal?

One thing to make note of is that no mention has been made about the alleged perpetrator of the assault on the girl. Who is he? Is he going to be charged as well, or is law enforcement only looking to make an example of a clergyman who erred in not reporting an allegation of sexual assault? Perhaps authorities need to concentrate on the person who may have actually committed the abuse and continue working to make sure that all Utah citizens, not just clergy, know of their responsibility when it comes to reporting suspected child abuse.

Don’t forget the bottom line: everyone is considered innocent unless proven guilty in a court of law. Additionally, let’s make sure the punishment fits the crime.

Call a Utah criminal defense attorney immediately if you have been charged with any crime, sexual assault or otherwise. Don’t wait for law enforcement to sort out the issues. Get the advice of someone who will be on your side.

Provo Police Officer Accepts Plea Bargain In Sex Offense Case

Clayton Simms, Criminal Defense Attorney, on the topic of  Crimes, Utah Crime News
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To Plea or not to plea, was not a question for a Provo police officer who accepted a plea deal in sexual assault case brought against him. Jeffery Westerman, former Provo city police officers plead guilty to a 3rd degree felony attempt of forcible sexual abuse and a class A misdemeanor of obstruction of justice. Westerman is scheduled to undergo a “mental evaluation before his sentencing” on February 3, 2011.

False Accusations of Child Sexual Abuse and Domestic Violence in Utah are often part of divorce

Clayton Simms, Criminal Defense Attorney, on the topic of  Crimes
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photo: C.P.Storm

photo: C.P.Storm

Divorces are often very messy procedures in Utah, and some spouses will stop at nothing to injure their former mates including fabricating false sex abuse allegations. There are strong feelings that lead to bad decisions such as false child abuse allegations. In the case of child abuse the urge to protect children is often stronger then deeming the accused innocent until proven guilty. This makes child abuse a crucial weapon in divorce cases.

These false accusation may stem from real facts such as a child acting suspicious or anxious, behavior that can easily be created by the divorce. However, recently the majority of false accusation are made to hurt the opposing divorcee, or gain custody of the children. Young child often fall victim to the lies of their parents and can easily convince a health care professional or therapist that the abuse did in fact occur. Even if a defendant is found innocent of these false accusations there could be dire consequences to their reputation, job, societal connections, and they shunned by their children and by others with children.

If you find yourself intertwined in a case of false child abuse accusations you must acknowledge the gravity of you situation (the related laws were created to protect children first and foremost). You should not try to handle the charges on your own, no matter how innocent you feel you are. You should not speak to police, or anyone about the situation except for your attorney who should be an experienced Utah criminal trial lawyer who knows how to defend these type of cases.

What information is on Utah’s Sex Offender Registry?

Clayton Simms, Criminal Defense Attorney, on the topic of  Legal Process, Utah Law
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Utah’s Sex Offender Registry is called SONAR (Sex and Kidnap Offender Notification and Registration).

The Utah Sex Offender Registry list contains the following details:

  • Name
  • Aliases you use or have used
  • Physical Description Information
    • Current photo of offender
    • Age
    • Sex
    • Race
    • Hair
    • Height
    • Weight
    • Eye Color
    • Scar/Tattoos
  • Address and Other Known Addresses
  • Professional Licenses
  • Type of vehicle offender drives
  • Information on the crime that offender was convicted
    • Description of offense
    • Date convicted
    • Date released from prison
    • Details about offense
    • (Victim information is not listed)

Utah law states that “members of the public are not allowed to use the information to harass or threaten offenders or members of their families; and harassment, stalking, or threats against offenders or their families are prohibited and doing so may violate Utah criminal laws.”  Utah Code Section 77-27-21.5(24)(b-c).

If you are on Utah’s Sex Offender Registry and someone is harassing you, call the police.  If the police are unresponsive due to your status as a sex offender, call a top Utah criminal defense attorney that can help protect you from harassment.

Ben Roethlisberger’s Big Night Photo Evidence Released

Jessica, on the topic of  Crimes, Legal Process
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photo: Georgia Bureau of Investigation Evidence

photo: Georgia Bureau of Investigation Evidence

Ben Roethlisberger was accused of rape in a Georgia nightclub earlier this year but he was able to afford a very successful criminal defense attorney who had the charges dropped. Big Ben’s career is no longer in jeopardy because of this. However, if Ben went to trial and was found not guilty, he still may have had further sanctions by the NFL and/or his sponsors. A trial by jury is a more serious matter then simple sexual assault charges that are not deemed viable by a court of law. The Georgia Bureau of Investigation released photographic evidence of his night, and video from the night as well as the investigation can also be seen here.

Jury Agrees Tight Jeans Will Stop Rape

Jessica, on the topic of  Crimes, Evidence
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photo: Ro / wererabbit

photo: Ro / wererabbit

Australian Nicholas Gonzales was acquitted of rape. The sexual contact between Gonzales and his alleged victim was deemed consensual, partially because the jury agreed that it is extremely improbable that the female’s skin tight jeans could have been removed without her help and consent. The jury asked for more information about how the defendant had removed the jeans, and apparently it was not given. In South Korea and in Italy the same type of rape defense has also been used. In Seoul, South Korea a man convicted of raping a woman while she was wearing the same type of skinny jeans had his sentence overturned. In Italy however, courts upheld a rape conviction involving a victim wearing skinny jeans. This definitely shows that the conviction of sexual assault charges can hinge on a single detail in the case which is why having the best possible criminal defense lawyer is important.

Utah Supreme Court overturns 20-year-old rape conviction

Jesse Nix, Utah Criminal Defense Lawyer, on the topic of  Utah Crime News
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The Utah Supreme Court overruled the conviction of a man who was convicted of raping a woman over twenty years ago.  The Court found that the defendant’s rights were trampled on and he now deserves a new trial.

Three days before the defendant’s trial in 1988, his attorney quit and went to work for the Utah County Prosecutor’s office (the same office that was prosecuting the defendant).  After being appointed another attorney, the defendant was convicted and his attorney was replaced to work on his appeal.  His attorney changed again, and then again.  The defendant’s appeal was ultimately dismissed because his fourth attorney did not file a brief to the court.  Finally, the defendant had a fifth attorney who succeeded in his appeal to get the defendant resentenced.

However, the Utah Supreme Court wrote in their opinion, “[f]or nearly ten years, McClellan remained unaware he had been resentenced and was once again able to exercise his right to appeal his conviction of sixteen years earlier.  McClellan was not made aware of the resentencing order until the spring of 2004…”

The defendant had a string of bad attorneys who mismanaged his case.   The defendant, now granted a new trial, has sat in prison for twenty years because the five attorneys he had did not manage his case well.

The lesson in his case is that a defendant must hire an excellent attorney to ensure that their rights will not be trampled on.

The case is State v. McClellan, 2009 UT 50.