CoA affirms domestic violence conviction

This was a train wreck of a domestic violence trial that ended up being a fairly straight forward appeal.

State v. Atkin, 2006 UT App 155

For five hours early Sunday morning, Atkin beat and terrorized his girlfriend in her apartment. He ripped the phone out of the wall when she tried to call for help and later forced her to drive him home from Brigham City to Logan. Atkin's girlfriend managed to escape when she stopped at a 7-Eleven for a drink and the store clerk called the police. He was convicted of forcible sexual abuse (for painfully tweaking her breast), assault, aggravated kidnapping, and interruption of communications device.

On appeal there were three issues:

(1) Do assault and forcible sexual abuse (FSA) punish the same conduct under State v. Shondel, 453 P.2d 146 (1969)? Obviously not. The elements are entirely different, particularly the mens rea requirements. Forcible sexual abuse, which requires the intent to gratify a sexual desire or cause substantially bodily pain, requires proof of the reason the actor touched the person. Assault, on the other hand, merely requires intent to commit an act that causes or creates a substantial risk of bodily injury. In other words, with assault you just have to intend to touch victim, it doesn't matter why. But with FSA, you have to touch them for a specific reason.

(2) Should the agg kidnapping charge and the FSA charge merge under State v. Finlayson, 2000 UT 10, 984 P.2d 1243? Again, obviously not. The forcible sexual abuse lasted for a few seconds. The agg kidnapping lasted pretty much the whole morning. So the agg kidnapping was not merely incidental to the FSA.

(3) Did the trial court err in admitting evidence of Atkin's prior bad acts, including his domestic violence and drug use? This was what made the trial a train wreck. Defendant took the stand and accused the victim of using meth and attacking him. He related several instances of her prior acts of domestic violence. So the prosecutor got up and put on evidence that defendant was a drug user and had abused his past girlfriends and his aunt. In the end, the testimony was more like an episode of Jerry Springer than a trial. The court of appeals held that the evidence of defendant's bad character was all properly admitted for a non-character reason: to impeach his credibility. Defendant had denied using meth at the time of the crimes and had disputed his criminal record. So evidence of his history of abuse and drug use was properly admitted to contradict his testimony.