Opinion
Case No. 20030089-CA.
Filed April 5, 2007. Not For Official Publication.
Appeal from the Third District, Salt Lake Department, 021907256 The Honorable Judith S. Atherton.
John D. O'Connell Jr. and Lori J. Seppi, Salt Lake City, for Appellant.
Mark L. Shurtleff and Christine Soltis, Salt Lake City, for Appellee.
Before Judges BENCH, GREENWOOD, and BILLINGS.
MEMORANDUM DECISION
Defendant Anthony James Valdez appeals his jury convictions for aggravated burglary, a first degree felony, see Utah Code Ann. § 76-6-203 (1999); purchase or possession of a dangerous weapon by a restricted person, a second degree felony, see id. § 76-10-503(2)(a) (Supp. 2002); and criminal mischief, a class B misdemeanor, see id. § 76-6-106 (Supp. 2002). Defendant claims that the trial court abused its discretion by admitting expert testimony regarding Battered Woman Syndrome (BWS) and that the error was harmful. We affirm.
Defendant also claimed that the State violated the Equal Protection Clause by using all four of its peremptory challenges to strike women jurors. Cf. Batson v. Kentucky, 476 U.S. 79, 89 (1986) (holding prosecutor violated the Equal Protection Clause of the Fourteenth Amendment when striking jurors based on race); J.E.B. v. Alabama, 511 U.S. 127, 146 (1994) (extending reasoning fromBatson to prohibit "discrimination in jury selection on the basis of gender"). This court previously considered this case and reversed Defendant's convictions based solely on his Batson challenge. See State v. Valdez, 2004 UT App 214, ¶ 17 n. 2, 95 P.3d 291. We did not reach Defendant's additional claims raised on appeal. See id. On certiorari review, the supreme court reversed this court, concluding that Defendant's Batson challenge was untimely. See State v. Valdez, 2006 UT 39, ¶ 46, 140 P.3d 1219. The supreme court then remanded to this court for a determination of Defendant's remaining arguments on appeal.See id. at ¶ 47. Because Defendant's challenge to the admission of the BWS testimony is the only issue remaining on appeal, we focus solely on that issue.
At Defendant's preliminary hearing, Defendant's girlfriend, Chrystal Jimenez, testified for the prosecution. Prior to trial, however, the State learned that Jimenez intended to recant her preliminary hearing testimony. In response, the State informed Defendant that it would call Jennifer Mackenzie, a BWS expert, to testify at trial. Defendant filed a motion in limine seeking to exclude the BWS testimony on grounds that it was anecdotal, statistical evidence and thus, inadmissible. The trial court, however, denied the motion.
As anticipated, at trial, Jimenez recanted her earlier testimony and the State subsequently called Mackenzie to testify. Mackenzie stated, among other things, that "domestic violence is a pattern of physical aggressive behavior [and] emotionally abusive behavior that is committed by an intimate partner." She further explained that BWS involves a "cycle of violence" and a "pattern of symptoms that women who are in abusive relationships have been through." Mackenzie also explained that BWS is a subcategory of Post Traumatic Stress Disorder, and can help explain why victims recant their testimony. Finally, Mackenzie stated that she had not interviewed Jimenez, and she made no comment regarding whether Jimenez suffered from BWS, was in an abusive relationship, or had lied at trial or at the preliminary hearing.
The State also called three other witnesses to testify against Defendant. Laura Abeyta testified that on the night of the alleged incident, she, Jimenez, Diana Ryerson, and Jessica Huxhold were at Abeyta's home. Abeyta saw Defendant outside, and when she opened her door a few inches, Defendant "pushed his way inside." Defendant then pulled out a gun, pointed it at Jimenez's head, "call[ed] her names," and "sa[id] he was going to kill her." Ryerson testified that when Defendant came to Abeyta's house looking for Jimenez, Defendant "kind of forced his way in," and pointed a gun at Jimenez. Ryerson further testified that when Defendant left the apartment, she followed him outside and saw him "popping tires on [Jimenez's] car." Finally, Huxhold testified that Defendant entered Abeyta's home without permission, and although Huxhold left the apartment at that time, on her way out, she observed Defendant pointing a gun at Jimenez's head and shouting at her.
Ryerson used the terms "popping tires" and "slashing tires" interchangeably.
Defendant was convicted of aggravated burglary, see Utah Code Ann. § 76-6-203, possession of a dangerous weapon by a restricted person,see id. § 76-10-503(2)(a), and criminal mischief, see id. § 76-6-106. He appeals, claiming that the trial court abused its discretion by admitting Mackenzie's testimony and that the error was harmful.
"The trial court has wide discretion in determining the admissibility of expert testimony, and such decisions are reviewed under an abuse of discretion standard." State v. Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794 (quotations and citation omitted). Even if the trial court abused its discretion, we will not disturb a conviction if we conclude that the error was harmless. See State v. Ramsey, 782 P.2d 480, 485 (Utah 1989). "The standard for determining harmless error is whether the admission of the expert[']s opinions so erodes our confidence in the outcome of the conviction . . . that absent the error a different outcome would be reasonably likely." Id.; see also Utah R. Crim. P. 30(a) ("Any error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded."); State v. Adams, 2000 UT 42, ¶ 20, 5 P.3d 642 ("A harmful error occurs where the likelihood of a different outcome [in the absence of the error is] sufficiently high [so as] to undermine confidence in the verdict." (alterations in original) (quotations and citation omitted)).
In this instance, we need not reach the merits of Defendant's argument because the error he alleges was harmless. See Adams, 2000 UT 42 at ¶ 23 (concluding that "the erroneous admission of [the witnesses's] testimony was harmless error because other persuasive evidence support[ed the defendant's] conviction"); Ramsey, 782 P.2d at 485 (upholding the defendant's conviction notwithstanding the erroneous admission of expert testimony because "[t]he record contain[ed] substantial evidence that support[ed] the conviction"). For example, Abeyta testified that Defendant forced his way into her home and pulled out a gun. Ryerson and Huxhold testified similarly, and Ryerson also testified that she witnessed Defendant slashing Jimenez's tires. This evidence supports Defendant's convictions, and we are not convinced that, absent the BWS testimony, there is a reasonable likelihood of a more favorable outcome for Defendant. See Ramsey, 782 P.2d at 485. Consequently, we affirm Defendant's convictions.
The State argues that Defendant's BWS argument has not been preserved, and Defendant contests the State's position. Because we conclude that any alleged error was harmless, we do not reach the preservation argument. We also note that by focusing solely on harmlessness, we are not addressing the admissibility of BWS testimony.
WE CONCUR: Russell W. Bench, Presiding Judge, Judith M. Billings, Judge.