State v. Rupert

2014 UT App 279_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
ROBERT RUPERT,
Defendant and Appellant.
Opinion
No. 20130684-CA
Filed November 28, 2014
First District Court, Brigham City Department
The Honorable Ben H. Hadfield
No. 121100345
Randall W. Richards, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE JAMES Z. DAVIS authored this Opinion, in which JUDGES
STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN concurred.
DAVIS, Judge:
¶1 Robert Rupert appeals his conviction of assault by a
prisoner. We affirm.
BACKGROUND
¶2 On November 30, 2012, Rupert was an inmate at the Box
Elder County Jail and housed in a cell with four other prisoners,
including the victim, James Pettus. Rupert and Pettus did not get
along and often argued with each other. Around 2:00 p.m., Rupert
and another inmate, Gregorio Cisneros, attacked Pettus. Pettus
State v. Rupert
suffered a broken nose, two black eyes, and a “cauliflowered” ear.
The incident was recorded by a security camera, and the footage
was played, without sound, at Rupert’s trial based on the parties’
stipulation.
¶3 The video shows the cell mates occasionally talking with
each other, watching television, sitting in their bunks, and
otherwise idly passing the time. About seven minutes into the
recording, while Pettus changed into a pair of athletic shoes,
Cisneros engaged Pettus in conversation and made gestures
seeming to invite Pettus to fight. Pettus remained seated and
continued putting on his shoes. Cisneros grew more visibly
agitated, gesturing between Pettus and Rupert. Pettus simply
nodded, and when he finished tying his shoes, he stood and faced
Cisneros, who assumed a boxing stance and began jabbing punches
in Pettus’s direction. Pettus remained in a passive stance, with his
hands by his sides. Rupert then jumped Pettus from behind and
struck Pettus on the back of the head. Rupert and Pettus eventually
fell to the floor, where Pettus became pinned under Rupert. While
on the floor, Rupert continued to punch Pettus in the head and legs
and bit his ear. Within a minute, the fight was over. Rupert got up
and returned to sitting on his bunk. He had blood on his hands,
face, beard, and clothing. Pettus remained on the ground, breathing
heavily. His face, right arm, and hands were covered in blood, and
blood was smeared on the floor around him. Rupert stood to
retrieve his shoe that came off during the fight and motioned for a
guard’s attention. Shortly after the guards arrived in the cell, Pettus
began convulsing on the floor.
¶4 Rupert’s theory at trial was that he acted in self-defense. The
trial court had denied Rupert’s pretrial motion in limine in which
he sought to use evidence of Pettus’s various jail disciplinary write-
ups to bolster Rupert’s self-defense claim. The court permitted
Rupert to “elicit general reputation or opinion testimony regarding
Mr. Pettus’s character” but ruled that specific instances of Pettus’s
prior conduct could not be raised except to discredit opinion or
reputation testimony on cross-examination.
20130684-CA 2 2014 UT App 279State v. Rupert
¶5 At trial, Pettus admitted that he was a convicted felon and
explained that he was incarcerated at the time of the fight with
Rupert “for drinking and just being stupid.” Pettus testified that he
had a hard time in jail and admitted that he did not get along with
Rupert and that he had threatened Rupert before, but that they
ultimately “blew off” each other’s threats because that was “just the
environment.”
¶6 Rupert testified that there were no problems in the cell until
Pettus arrived. Rupert claimed that Pettus directed sexual gestures
at him and repeatedly threatened to hurt Rupert and to “make
[him] his bitch.” Rupert testified that the evening before the fight,
Pettus had threatened to hit him with a cup and that Pettus
continued to verbally threaten Rupert on the morning of the fight.
Rupert explained that he intervened when Cisneros engaged Pettus
because he “was scared,” his anxiety was “real high,” and his
“mind was racing.”
¶7 At the close of the evidence, the trial court denied Rupert’s
request for a self-defense jury instruction, stating that there was not
sufficient evidence to warrant the instruction. The jury convicted
Rupert, and Rupert timely appealed.
ISSUES AND STANDARDS OF REVIEW
¶8 Rupert argues that the trial court incorrectly denied his
request for a self-defense jury instruction. A trial court’s “refusal to
give a jury instruction is reviewed for abuse of discretion.” State v.
Berriel, 2013 UT 19, ¶ 8, 299 P.3d 1133 (citation and internal
quotation marks omitted).
¶9 Second, Rupert argues that the trial court abused its
discretion by denying his motion in limine and prohibiting
evidence of Pettus’s prior bad acts from being admitted. We review
a trial court’s decision to admit or exclude evidence of other crimes,
wrongs, or bad acts under rule 404(b) of the Utah Rules of Evidence
20130684-CA 3 2014 UT App 279State v. Rupert
for an abuse of discretion. State v. Decorso, 1999 UT 57, ¶ 18, 993
P.2d 837.
¶10 Third, Rupert claims that he received ineffective assistance
from his trial counsel due to counsel’s failure to object on
gruesomeness grounds to the admission of the final few minutes of
the recording after the altercation had ended and during which
Pettus could be seen covered in blood and convulsing. “[A] claim
of ineffective assistance of counsel . . . raised for the first time on
appeal without a prior evidentiary hearing . . . presents a question
of law.” State v. Bryant, 965 P.2d 539, 542 (Utah Ct. App. 1998).
However our review of a trial attorney’s “performance must be
highly deferential; otherwise the distorting effects of hindsight
would produce too great a temptation for courts to second-guess
trial counsel’s performance on the basis of an inanimate record.” Id.(citation and internal quotation marks omitted).
¶11 Last, Rupert claims the trial court plainly erred by admitting
the allegedly gruesome portion of the video into evidence. To
demonstrate plain error, a defendant must show that “(i) [a]n error
exists; (ii) the error should have been obvious to the trial court; and
(iii) the error is harmful, i.e., absent the error, there is a reasonable
likelihood of a more favorable outcome for the appellant, or
phrased differently, our confidence in the verdict is undermined.”
State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993).
ANALYSIS
I. Self-Defense Instruction
¶12 Rupert argues that the trial court’s refusal to give the jury
his requested instruction on self-defense prohibited him from
adequately presenting his theory of the case. The trial court denied
Rupert’s request for a self-defense instruction after concluding that
there was no basis in the evidence to support the defense.
20130684-CA 4 2014 UT App 279State v. Rupert
¶13 “Each party is . . . entitled to have the jury instructed on the
law applicable to its theory of the case if there is any reasonable
basis in the evidence to justify it.” State v. Torres, 619 P.2d 694, 695
(Utah 1980). We afford significant deference to “[a] district court’s
refusal to instruct the jury on a defendant’s theory of the case”
when its decision is based on its determination that “the record
evidence, viewed in its totality,” does not support “the defendant’s
theory of the case.” State v. Berriel, 2013 UT 19, ¶ 9, 299 P.3d 1133.
¶14 “A person is justified in threatening or using force against
another when and to the extent that the person reasonably believes
that force or a threat of force is necessary to defend the person or
a third person against another person’s imminent use of unlawful
force.” Utah Code Ann. § 76-2-402(1)(a) (LexisNexis 2012). The trial
court based its application of the self-defense statute on our
supreme court’s decision in State v. Berriel, 2013 UT 19, 299 P.3d
1133. In that case, the supreme court considered the trial court’s
refusal to instruct the jury on defense of a third person. Id. ¶ 21.
There, Berriel was contacted by a female friend who asked him for
help with her abusive boyfriend. Id. ¶ 2. Berriel immediately drove
to the friend’s house. Id. ¶¶ 3–4. Berriel and the boyfriend
approached each other and met in the middle of the road, where
Berriel thrust a knife toward the boyfriend, injuring the boyfriend’s
arm. Id. ¶¶ 4–5. Berriel’s theory at trial was that he acted in self-
defense and in defense of a third person, his friend. Id. ¶ 6. The trial
court provided the jury with a self-defense instruction but “refused
to instruct the jury on defense of a third person because it
determined that Mr. Berriel’s theory . . . was ‘not supported by the
evidence.’” Id.
¶15 The supreme court affirmed, noting that the imminent
danger requirement in the Utah Code’s definition of self-defense
functions to “distinguish[] lawful defensive force from two forms
of unlawful force: that which comes too soon and that which comes
too late.” Id. ¶ 14. The court elaborated, “A preemptive strike
against a feared aggressor is illegal force used too soon; and
retaliation against a successful aggressor is illegal force used too
20130684-CA 5 2014 UT App 279State v. Rupert
late.” Id. (citation and internal quotation marks omitted). The court
concluded that although the friend’s “phone call for help suggested
that she was in imminent danger at the time of the call,” by the time
Berriel arrived at her house, “he had no basis for reasonably
believing that [the friend] continued to be in ‘imminent’ danger or
that it was ‘necessary’ for him to stab [the boyfriend].” Id. ¶ 16. The
court concluded “that, standing alone, a history of violence or
threats of future violence are legally insufficient to create a
‘situation of imminent danger.’” Id. ¶ 20 (quoting State v.
Hernandez, 861 P.2d 814, 820 (Kan. 1993)).
¶16 Here, Rupert argues that the reasonableness and imminence
elements of self-defense are supported by his testimony that he
feared Pettus; that he had been threatened by Pettus the night
before the altercation occurred and again the morning of the
altercation; that the night before the fight, after Pettus’s threat with
a cup, Rupert sent two notes to jail staff informing them of his fear
and explaining his belief that Pettus posed a “security risk”; and
that he knew of Pettus’s “behavioral issues in the jail.” In addition,
he testified that Pettus is “quite a bit bigger.” Rupert testified that
he interpreted Pettus’s act of putting on athletic shoes near
Rupert’s bunk as Pettus “booting-up,” i.e., preparing to fight, and
that he intervened between Pettus and Cisneros out of fear.
¶17 After discussing Berriel, the trial court rejected Rupert’s
request, stating, “Since even the possibility of future abuse doesn’t
justify a preemptive strike, you can’t cold-cock somebody from
behind because you’re afraid, if you don’t, they might face you and
hurt you.” We agree. Although Rupert may have been threatened
in the past and may have had a general fear of Pettus acting on a
threat in the future, the video footage clearly shows that Rupert
was not in imminent danger of being attacked by Pettus and that
Rupert’s use of force was not necessary to defend himself. Indeed,
as the trial court observed, the manner in which Pettus faced
Cisneros, with his hands by his sides and palms open, suggests that
Pettus did not “pos[e] any imminent threat to Mr. Cisneros, who
[was] acting like he[ was] ready to punch [Pettus].” Regardless of
20130684-CA 6 2014 UT App 279State v. Rupert
whether Rupert’s claim of self-defense was “seminal” to his case,
as he asserts it was, it does not entitle him to a jury instruction on
a matter that is nonetheless unsupported by the evidence. See State
v. Standiford, 769 P.2d 254, 264 (Utah 1988) (“It is error to give an
instruction if there is no evidence to support it and if it could be
misleading.”). Accordingly, the trial court did not abuse its
discretion in refusing to instruct the jury on self-defense.
II. Bad Acts Evidence
¶18 Rupert next argues that the trial court abused its discretion
when it denied his motion in limine to use evidence of Pettus’s
“significant and often violent bad acts while in custody to bolster
[Rupert’s] claim that he acted in self-defense.” The trial court
granted Rupert’s motion in part by permitting him to “elicit
general reputation or opinion testimony regarding Mr. Pettus’s
character,” while denying his request “to elicit specific instances of
Mr. Pettus’s conduct unless used on cross-examination to discredit
opinion or reputation testimony of Mr. Pettus’s character.” The
court described Rupert’s analysis as insufficient “to show that
specific instances of Mr. Pettus’s conduct are admissible,” and it
noted that Rupert failed to “allege[] that Mr. Pettus’s character is
an essential element of a charge, claim or defense.” The court
denied Rupert’s “cursory” attempt to argue for the admission of
the evidence under rule 404(b), stating, “Defendant is attempting
to admit the evidence to show Mr. Pettus’s bad character, in order
to show that on the date of the offense he acted in conformity with
the character. This is exactly what Rule 404(b) prohibits.”
¶19 On appeal, Rupert frames his argument as arising not out of
rule 404(b), but out of the self-defense statute, which he argues
“provides specific examples of ‘proper non-character purposes’ of
evidence of bad acts . . . that a trier of fact may consider in
determining the imminence or reasonableness of the defendant[’s]
self-defense claim.”1 See Utah Code Ann. § 76-2-402(5) (LexisNexis
2012). This argument is not preserved, and “[a]s a general rule,
1. For which we have ruled Rupert is not entitled to an instruction.
20130684-CA 7 2014 UT App 279State v. Rupert
claims not raised before the trial court may not be raised on
appeal.” See State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346.
Additionally, Rupert has not addressed the grounds on which the
trial court actually ruled on his motion. “Utah appellate rules
require the appellant to address reasons why the district court’s
[ruling] should be overturned,” which necessarily requires an
appellant “to allege specific errors of the lower court.” See Allen v.
Friel, 2008 UT 56, ¶¶ 7, 14–15, 194 P.3d 903; see also Utah R. App. P.
24(a)(9). Accordingly, we do not address this issue further.
III. Video Evidence
¶20 Last, we address Rupert’s remaining two claims that he
received ineffective assistance of trial counsel and that the trial
court plainly erred based on the admission of the post-fight portion
of the video that shows Pettus convulsing on the floor in a “pool”
of his own blood. Rupert asserts that the footage depicting “the
aftermath of the fight . . . is gruesome” and has “absolutely no
probative value.” He contends that the prosecutor shared this
belief, pointing to the prosecutor’s statement to prospective jurors
in voir dire that the evidence included a video that “will be
somewhat disturbing,” and to the prosecutor’s comment in his
opening argument “forewarn[ing]” the jurors that the video could
be considered “disturbing” and “difficult.”
¶21 To demonstrate that he received ineffective assistance of
counsel, a defendant
must (i) identify specific acts or omissions by counsel
that fall below the standard of reasonable
professional assistance when considered at the time
of the act or omission and under all the attendant
circumstances, and (ii) demonstrate that counsel’s
error prejudiced the defendant, i.e., that but for the
error, there is a reasonable probability that the
verdict would have been more favorable to the
defendant.
20130684-CA 8 2014 UT App 279State v. Rupert
State v. Dunn, 850 P.2d 1201, 1225 (Utah 1993) (citing Strickland v.
Washington, 466 U.S. 668, 690–91 (1984)). To demonstrate plain
error, a defendant must show that “(i) [a]n error exists; (ii) the error
should have been obvious to the trial court; and (iii) the error is
harmful, i.e., absent the error, there is a reasonable likelihood of a
more favorable outcome for the appellant, or phrased differently,
our confidence in the verdict is undermined.” Id. at 1208–09. The
ineffective assistance “prejudice test is equivalent to the
harmfulness test we apply in determining plain error.” Id. at 1225.
¶22 To satisfy the first prong of both the ineffective assistance
test and the plain error analysis, Rupert must demonstrate that the
portion of the video he argues should have been excluded actually
constitutes gruesome evidence. See State v. Stapley, 2011 UT App 54,
¶ 10, 249 P.3d 572 (noting that gruesome photographs “make up
one” category of evidence that is “uniquely subject to being used
to distort the deliberative process and improperly skew the [trial’s]
outcome” (alteration in original) (citation and internal quotation
marks omitted)). A court may consider “a variety of factors” when
determining whether an image is gruesome, including “whether
the photograph is in color or black and white; whether it is an
enlargement or close-up shot; when the photo was taken in relation
to the crime; and whether other details in the photo, aside from the
victim, may exacerbate the photograph’s impact on the viewer.” Id.
¶ 15 (citation and internal quotation marks omitted); see also State
v. Dibello, 780 P.2d 1221, 1229–30 (Utah 1989) (analyzing the
admissibility of allegedly gruesome video evidence using the same
factors used to analyze photograph evidence for gruesomeness).
“Gruesome” is synonymous in this regard with “grisly and
hideous” or something that “inspir[es] horror or repulsion.”
Stapley, 2011 UT App 54, ¶ 15 (alteration in original) (citation and
internal quotation marks omitted).
¶23 In State v. Lafferty, 749 P.2d 1239 (Utah 1988), the supreme
court addressed whether two particular photographs and video
evidence were gruesome and therefore admitted in error. Id. at
1257–58. There, the defendant was convicted of murdering his
sister-in-law and her infant daughter. Id. at 1241. One of the
20130684-CA 9 2014 UT App 279State v. Rupert
photographs the defendant challenged as inadmissible was a black
and white image of the infant’s body, “not as it was found, but
repositioned in the crib so that the gaping neck wound and blood-
covered face and body could be seen,” along with a baby bottle and
toy next to the crib. Id. at 1257. The other photograph was in color
and showed the sister-in-law’s body with “dried blood on the face,
arms, back, and legs; a large pool of blood on the kitchen floor; the
neck wound; and the bruised and swollen lips.” Id. The court held
that these were “not merely crime-scene photographs” but carried
with them a “strong” “emotional impact” that outweighed the
“limited” probative value of the photos, which went toward
proving matters that were “cumulative of the testimony” offered
by several witnesses. Id. Ultimately, however, the court determined
that the admission of these photographs did not amount to a
prejudicial error given the abundance of evidence supporting the
defendant’s conviction. Id.
¶24 The video evidence challenged in Lafferty showed the crime
scene as it was found by police and included some shots of the
victims’ bodies. Id. at 1258. The Lafferty court noted that the video
“was of very poor quality and was mainly black and white,
although a few portions were in color[, and s]ome parts were
intentionally blacked-out.” Id. It held that the shots containing the
bodies were “not particularly gruesome or inflammatory” because
the camera did not linger on the bodies, the views of the sister-in-
law’s body “were taken at a distance” with “[f]ew details . . .
visible,” and the shots of the infant were in black and white and
showed only the “body slumped in a crib, facing away from the
camera, with no injuries visible.” Id. The court concluded that the
video was admissible because, “[o]verall, the videotape is most
properly characterized as a view of the crime scene, with some
shots of the corpses,” rather than “just a grisly view of the bodies.”
Id.
¶25 Here, to demonstrate that the challenged footage is
gruesome, Rupert relies on the prosecutor’s statements during voir
dire and opening arguments in which the prosecutor describes the
footage as “disturbing.” Rupert also notes that the trial court
20130684-CA 10 2014 UT App 279State v. Rupert
sustained his trial counsel’s objection that the post-fight content of
the video was not relevant even though counsel’s objection was not
made until the contested content had already been played for the
jury. Rupert concludes that the video footage in his case “offered
basically the same irrelevant information that was offered in the
Lafferty case.”
¶26 Rupert has not demonstrated that the video footage is
gruesome. Indeed, in Lafferty, whether the challenged evidence
accurately depicted the crime scene factored into the court’s rulings
on whether an image was gruesome, and here, there is no doubt
that the video footage accurately shows the crime scene as it was
found by the jail guards. Likewise, Rupert makes no claim that the
post-fight footage qualifies as “gruesome” under Lafferty, just that
the prosecutor stated it was “disturbing.” However, “[a]
photograph is not gruesome . . . merely because it is unpleasant to
view.” Stapley, 2011 UT App 54, ¶ 15. Accordingly, having failed to
demonstrate that the post-fight footage was gruesome, Rupert’s
ineffective assistance and plain error arguments necessarily fail. See
generally State v. Litherland, 2000 UT 76, ¶ 8, 12 P.3d 92 (noting that
the appellant “bears the burden of establishing that his trial counsel
was ineffective” and “the burden of establishing that the trial court
committed plain error”).
CONCLUSION
¶27 We affirm the trial court’s denial of Rupert’s request for a
self-defense jury instruction. Rupert has not adequately briefed or
preserved his argument that specific examples of Pettus’s prior bad
acts were wrongly excluded, and he has failed to establish that he
received ineffective assistance of trial counsel or that the trial court
committed plain error.
20130684-CA 11 2014 UT App 279