State v. Gasper

2018 UT App 164

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
AARON GASPER,
Appellant.

Opinion
No. 20160872-CA
Filed August 23, 2018

Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 141913141

Herschel Bullen, Attorney for Appellant
Sean D. Reyes, Jeanne B. Inouye and Jeffrey D. Mann,
Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES KATE A. TOOMEY and RYAN M. HARRIS concurred.

MORTENSEN, Judge:

¶1 Defendant Aaron Gasper hosted a house party in the
summer of 2014. Following the party, a teenage guest accused
Gasper of twice raping her during the course of the evening. The
State charged Gasper with two counts of rape and sought to
admit evidence under rule 404(b) of the Utah Rules of Evidence
of a previous instance of alleged sexual assault involving
Gasper. The district court admitted the evidence for the
noncharacter purpose of intent and under the doctrine of
chances. Gasper later pled guilty to second degree forcible
sexual abuse, preserving his right to appeal the district court’s
ruling admitting the disputed bad act evidence. The district
court subsequently sentenced Gasper to an indeterminate prison
term of one-to-fifteen years, rejecting his request to impose
probation instead of prison. He appeals and we affirm.
State v. Gasper

BACKGROUND

Victim Incident

¶2 In August 2014, Victim attended a friend’s birthday party
that Gasper hosted at his home. Victim testified that she let the
party guests know that she had a boyfriend and was not
romantically interested in anyone else. She also tried to limit her
alcohol consumption—she had “two or three strawberry-
flavored ales.” At the party, Victim met Gasper for the first time.

¶3 As the party progressed, Gasper repeatedly attempted to
convince Victim to drink shots of alcohol, which she declined
until later in the night. When she finally did drink one of the
shots Gasper offered her, Victim immediately became nauseated
and tired. Gasper, a licensed massage therapist, then offered to
give her a massage. Victim allowed Gasper to give her a massage
with the caution that he “[could not] touch anything that would
normally be covered by [her] underwear.” She then lay on the
floor and fell asleep as he massaged her back.

¶4 The next thing Victim remembered was being wakened in
the dark and moved to a couch. She vomited while she was on
the couch, and someone—she believed it was Gasper—gave her
a clean T-shirt to wear. She again fell asleep and awoke the next
morning only to realize that Gasper “was currently having sex
with [her].” Somehow, she had been moved from the couch to a
bedroom, where she awoke to a “burning and tearing sensation
in . . . the vagina and labia”—with Gasper on top of her.

¶5 Victim immediately put on her clothes and went home.
Upon arriving home, she texted a few friends, including her
boyfriend, about what had happened. One of her friends took
her to the police station a few hours later. Afterward, she went to
the emergency room, where medical personnel collected
evidence for a rape kit. She later talked to a police detective
about the incident, stating that she did not give Gasper any
indication she was interested in him and, more importantly, she
did not consent to having sexual intercourse with him.

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¶6 Gasper, when later interviewed, admitted to the police
that he had sexual intercourse with Victim when they were
sitting on the couch together while the party was winding down.
When asked about being in the bedroom with Victim the next
morning, he said that he wanted to lie with her in the bed and
that she needed assistance.

The Alleged Previous Incident

¶7 Prior to trial, the State moved to admit bad act evidence
against Gasper. During the evidentiary hearing on the State’s
motion, Witness gave an account of her alleged experience with
Gasper in January 2013. At that time, she and her brother,
(Brother) were living together. Witness testified that around 10
p.m., Brother brought a couple of friends home. One of the
friends was Gasper.

¶8 This was the first time Witness had met him. Witness also
testified that despite her protests, Gasper kept inappropriately
touching her, including her buttocks. She told Gasper that she
had a boyfriend and was not interested in him, to which Gasper
responded, “Oh, I do this all the time . . . I’ll make you feel
better.” Witness testified that she “knew [Gasper] was a massage
therapist . . . and that was the indication that he gave me . . . [that
he could] make my shoulders so I wasn’t tense.” She rejected his
offer and continued to decline his additional physical advances.

¶9 At some point in the evening, he brought her an already-
opened beer. She accepted the drink and they both proceeded to
“chug” their respective beers. Almost immediately, she felt
dizzy, sick, and very tired, as though she needed to go to sleep.
Sensing impending sickness, she headed to her bedroom to lie
down—alone.

¶10 Witness did not wake up until 4 p.m. the next day, which
was very unusual for her. When she awoke, she was completely
nude, which was also out of character. Because she shared the
apartment with her brother, Witness testified that she never slept
without clothes on. Additionally, after waking up, she

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experienced vaginal pain “like she might be torn.” When she
went to remove a tampon that she had inserted the night before,
she initially could not find it. She then realized it was lodged
deep inside of her, and she was eventually able to remove it only
with great difficulty.

¶11 A couple of days later, Witness discussed the experience
with Brother, 1 and he told her that he had seen Gasper coming
out of her bedroom on the morning in question. At that point,
she contacted rape crisis counselors and filed a report.

Summary of Proceedings

¶12 The State charged Gasper with two counts of rape for his
conduct against Victim. The State filed a motion to admit
evidence of Gasper’s alleged assault on Witness under rule
404(b) of the Utah Rules of Evidence, but the court later struck
that motion when the State could not proceed at the scheduled
evidentiary hearing.

¶13 The State then filed a second motion to admit the
evidence, arguing that evidence of Gasper’s alleged sexual
assault on Witness was relevant to establish Gasper’s intent to
engage in sexual intercourse without Victim’s consent, to show a
lack of accident or mistake as to consent, and to rebut Gasper’s
claim that Victim was fabricating her allegations. The State also
argued that the evidence was relevant under the doctrine of
chances and any risk of unfair prejudice in admitting the
evidence did not substantially outweigh its probative value.
After an evidentiary hearing during which it heard the

1. At the evidentiary hearing on the State’s motion to admit bad
act evidence against Gasper, Brother confirmed that sometime
after the bars closed that night, he, a cousin, and Gasper had
gathered at the apartment where he and Witness lived. Witness
was already there. All were drinking and around 2 a.m., Brother
went to bed. Around 10:30 a.m. the next morning, he saw Gasper
emerge from Witness’s room.

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testimony of Witness and Brother, the district court granted the
State’s motion to admit the evidence and entered corresponding
findings of fact and conclusions of law.

¶14 Gasper later entered a plea of guilty to one count of
forcible sexual abuse, a second degree felony, the terms of which
preserved his right to appeal the district court’s ruling admitting
the bad act evidence of his conduct against Witness. The district
court sentenced Gasper to a prison term of one-to-fifteen years,
rejecting his request to impose probation instead of prison.
Gasper appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Gasper raises two issues on appeal. 2 First, he argues that
the district court abused its discretion under rule 404(b) by
admitting the bad act evidence against Gasper. We review a
district court’s decision to admit evidence under rule 404(b) for
abuse of discretion, State v. Reece, 2015 UT 45, ¶ 17, 349 P.3d 712,
and assess “whether the district judge made an error in
admitting or excluding the evidence in question,” State v.
Thornton, 2017 UT 9, ¶ 53, 391 P.3d 1016 (emphasis omitted). In
other words, we do not focus on the path the district court took
in reaching its conclusion, but review only the conclusion itself.
Id. ¶ 3 (“[A]ppellate review of evidentiary rulings is on the
decision made at trial, not the process by which that decision is
reached.”).

¶16 Second, Gasper argues that the district court abused its
discretion by unfairly sentencing him to prison—rather than

2. During oral argument before the Court of Appeals, Gasper
raised, for the first time, the argument that the district court
created unfair prejudice against Gasper by implying that a date-
rape drug was used by Gasper against Victim and Witness. Not
having been previously raised, this issue is unpreserved and we
therefore decline to address it further.

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suspending his sentence and imposing probation and
monitoring—in light of his “background and the crime
committed” as well as “the interests of society.” We review the
district court’s sentencing decision, including its decision to
grant or deny probation, for abuse of discretion. State v.
Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d 1167. “An abuse of
discretion results when the judge fails to consider all legally
relevant factors or if the sentence imposed is clearly excessive.”
Id. (cleaned up).

ANALYSIS

I. Admission of Bad Act Evidence

¶17 Gasper asserts that the district court abused its discretion
by admitting bad act evidence under rule 404(b) of the Utah
Rules of Evidence. His contention lacks merit because the bad act
evidence meets the admissibility standards under rule 404(b),
which provides:

Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to
show that on a particular occasion the person acted
in conformity with the character . . . . [but] may be
admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of
accident.

Utah R. Evid. 404(b). Accordingly, evidence of a defendant’s bad
act is not admissible to show a defendant’s propensity to engage
in criminal behavior. State v. Burke, 2011 UT App 168, ¶ 29, 256
P.3d 1102. But bad act evidence may be admissible under rule
404(b) for other proper, noncharacter purposes. See Utah R. Evid.
404(b)(2).

¶18 Although appellate review regarding the admission of
evidence is ultimately limited to “whether the district judge

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made an error,” our supreme court has also noted that best
practice encourages the court to “march[] through the standards
set forth in rules 404(b), 402, and 403, and present[] . . . analysis
on the record. And the judge who does so will be better-
positioned to have [the] decision on admissibility of prior
misconduct evidence affirmed on appeal.” State v. Thornton, 2017
UT 9, ¶ 54, 391 P.3d 1016.

¶19 Pursuant to this framework, to be admissible, the
evidence (1) must be “offered for a genuine, noncharacter
purpose,” (2) “must be relevant,” 3 and (3) “the probative value
of the evidence must not be substantially outweighed by the
danger of unfair prejudice.” State v. Lucero, 2014 UT 15, ¶ 13, 328
P.3d 841, abrogated on other grounds by Thornton, 2017 UT 9. Here,
the evidence against Gasper meets this criteria. The evidence
was appropriately admitted for a proper, noncharacter purpose 4
of showing Gasper’s intent to engage in sexual intercourse
without Victim’s consent; the evidence was relevant; and the
probative value of the evidence was not outweighed by the
danger of unfair prejudice.

A. Noncharacter Purpose

¶20 Historically, “evidence that a defendant raped others has
been viewed solely as impermissible character evidence and has
not been considered probative of whether a current victim was
raped.” State v. Nelson-Waggoner, 2000 UT 59, ¶ 24, 6 P.3d 1120.
However, in more recent years, courts have admitted such bad

3. As our supreme court has noted, “Relevance is a low bar.”
State v. Thornton, 2017 UT 9, ¶ 61, 391 P.3d 1016. Evidence is
relevant if it has “any” tendency to make a fact of consequence
more or less probable. Utah R. Evid. 401.

4. The State also argues that the doctrine of chances applies
regarding the admissibility of evidence in this case. But because
we affirm the decision of the district court on the grounds of
intent, we need not address every possible noncharacter basis.

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act evidence “for the noncharacter purpose of proving the
element of lack of consent in certain rape trials. This is especially
true when a defendant allegedly obviates the victim’s consent in
a strikingly similar manner in several alleged rapes.” Id. While
this evidence “is not conclusive proof that the victim did not
consent,” such evidence is “both relevant and material to the
issue of consent and therefore properly admissible.” See id.
(cleaned up) (holding that evidence of two other instances of
alleged rape suggested lack of consent and was therefore
admissible as noncharacter evidence where the defendant used
the same pattern of painful sexual positions).

¶21 Here, the similarities between the two incidents suggest a
lack of consent. In both instances, the victims reported being
touched by Gasper under the pretense of a “professional
massage”; being given unsealed alcoholic drinks by Gasper;
feeling sick and abnormally tired after consuming their drinks;
and waking up to find that they had been—or were being—
sexually assaulted. The two incidents represent a pattern of
behavior that is distinctively similar and therefore admissible to
show intent—a permissible noncharacter purpose. See State v.
Marchet, 2014 UT App 147, ¶ 29, 330 P.3d 138 (affirming the
admission of rule 404(b) evidence where “the similarities
between the events . . . rendered the bad act[] evidence relevant
to [show intent]”). Therefore, Gasper’s repeated, parallel acts can
be properly used to show his intent to engage in sexual activity
without Victim’s consent.

B. Relevance

¶22 Admission of Gasper’s alleged rape of Witness is relevant
to show his intent to engage in sexual intercourse with Victim
without her consent. Under Utah law, rape has only two
elements: sexual intercourse and lack of consent. As one of only
two elements, proof of a lack of consent is material to the crime
of rape. See Utah Code Ann. § 76-5-402(1) (LexisNexis 2017) (“A
person commits rape when the actor has sexual intercourse with
another person without the victim’s consent.”); see also Nelson-
Waggoner, 2000 UT 59, ¶ 27. Consent was the only issue at trial

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because Gasper admitted to having sexual intercourse with
Victim at the party. Because the bad act evidence makes the
existence of a material fact—Victim’s lack of consent—more
probable than it would have been without the admission of the
act, it is relevant under rule 402. See Nelson-Waggoner, 2000 UT
59, ¶¶ 27–28.

C. Probative Value Outweighs Danger of Unfair Prejudice

¶23 Any potential prejudice 5 Gasper may have suffered due to
the admission of the evidence does not substantially outweigh
its probative value. Admission of evidence is unfairly prejudicial
only if it creates “an undue tendency to suggest decision on an
improper basis.” State v. Maurer, 770 P.2d 981, 984 (Utah 1989);
see also State v. Burke, 2011 UT App 168, ¶ 34, 256 P.3d 1102.
Here, admission of the prior bad act evidence does not suggest a
decision made on an improper basis. We agree with the State
that Gasper’s conduct toward Victim was “pretty prejudicial by
itself.” Both instances included: powerful and possibly tainted
drinks; getting sick and becoming abnormally tired; getting a
massage from Gasper; and being sexually assaulted. Because the
two events are so similar, the district court determined that it
was unlikely that a jury would find Gasper’s conduct toward his
first target “any more offensive or disturbing” than his conduct

5. During argument before the district court, both parties
discussed the “overmastering hostility” factor as it related to
prejudice, despite that metric being rejected by the Utah
Supreme Court in State v. Cuttler, 2015 UT 95, ¶ 20, 367 P.3d 981.
On appeal, Gasper asserts that the district court’s consideration
of the “overmastering hostility” factor constitutes fundamental
error. This claim is both unpreserved and invited error, and we
decline to address the issue further. See, e.g., State v. Hamilton,
2003 UT 22, ¶ 54, 70 P.3d 111 (holding that invited error exists
when counsel “either by statement or act, affirmatively
represent[s] to the court” an incorrect statement of law). In any
event, as explained above, the only question on appeal is
whether the evidence should not have been admitted.

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toward Victim. Accordingly, the district court did not abuse its
discretion in admitting the bad act evidence.

II. Improper Sentencing

¶24 Gasper contends that the district court abused its
discretion by sentencing him to an indeterminate prison term of
one-to-fifteen years instead of suspending his prison sentence
and granting him probation. He claims that the sentence is
unfair “in light of [his] background and the crime committed” as
well as “the interests of society which underlie the criminal
justice system.” This argument is unavailing because Gasper has
not demonstrated that the district court “fail[ed] to consider all
legally relevant factors or [that] the sentence imposed is clearly
excessive.” State v. Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d
1167 (cleaned up).

¶25 Due process “requires that a sentencing judge act on
reasonably reliable and relevant information in exercising
discretion in fixing a sentence.” State v. Howell, 707 P.2d 115, 118
(Utah 1985). Criminal sentences “should be appropriate for the
defendant in light of his background and the crime committed
and also serve the interests of society which underlie the
criminal justice system.” State v. McClendon, 611 P.2d 728, 729
(Utah 1980).

¶26 In determining a proper punishment, the court has “wide
latitude” in sentencing, and the sentencing decision will be
reversed “only if it is an abuse of the judge’s discretion.” State v.
Scott, 2017 UT App 103, ¶ 10, 400 P.3d 1172 (cleaned up). An
abuse of discretion results only when the sentencing judge “fails
to consider all legally relevant factors or if the sentence imposed
is clearly excessive.” Valdovinos, 2003 UT App 432, ¶ 14 (cleaned
up). In other words, an abuse of discretion results only if “no
reasonable person would take the view adopted by the district
court.” Scott, 2017 UT App 103, ¶ 10 (cleaned up).

¶27 Here, there was no abuse of discretion. Gasper attempts
to convince this court that because he is only thirty-six years old

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and has completed an associate’s degree, the court abused its
discretion by denying him probation. 6 This argument lacks merit
as it suggests that a person’s education, background, or age
alleviates the significant, aggravated nature of the crime of
forcible sexual abuse. While Gasper persistently asserts that the
district court abused its discretion, he fails to identify any
concrete reasons as to why, other than his age and background,
the sentence imposed is inherently unfair. And the sentencing
court expressly considered his age, background, and education
in determining Gasper’s sentence. Therefore, we affirm the
district court’s sentencing on the basis that Gasper has not
demonstrated that the district court “fail[ed] to consider all
legally relevant factors or [that] the sentence imposed [was]
clearly excessive.” Valdovinos, 2003 UT App 432, ¶ 14 (cleaned
up).

CONCLUSION

¶28 We conclude that the district court did not abuse its
discretion by allowing evidence of Gasper’s prior alleged
assault. We also conclude that Gasper’s improper sentencing
claim lacks merit because he has failed to demonstrate that the
district court abused its discretion. Accordingly, we affirm.

6. A district court has broad discretion in deciding whether to
grant probation. This is because “[t]he granting or withholding
of probation involves considering intangibles of character,
personality and attitude, of which the cold record gives little
inkling.” State v. Rhodes, 818 P.2d 1048, 1049 (Utah Ct. App. 1991)
(cleaned up). Thus, “whether to grant probation is within the
complete discretion of the [district] court.” Id. A reviewing court
may overturn the denial of probation only if it is “clear that the
actions of the judge were so inherently unfair as to constitute
abuse of discretion.” Id. at 1051 (cleaned up).

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