State v. Aleh

2015 UT App 195

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ATHIMBAYO ALEH,
Appellant.

Opinion
No. 20140178-CA
Filed August 6, 2015

Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 101905210

Anthony V. Rippa, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES GREGORY K. ORME and STEPHEN L. ROTH concurred.

VOROS, Judge:

¶1 A jury convicted Athimbayo Aleh of robbery and theft,
second degree felonies, and assault, unlawful detention, and
sexual solicitation, class B misdemeanors. Aleh appeals. We
affirm.
State v. Aleh

BACKGROUND1

Waiver of Preliminary Hearing

¶2 At a roll-call hearing, Aleh’s original counsel stated that
Aleh intended to waive his preliminary hearing. The court asked
whether counsel had explained to Aleh what the waiver meant
and what it entailed. Counsel responded that he had.
Specifically, counsel explained to Aleh ‚that he has the right to
have a preliminary hearing,‛ that the State has the burden of
establishing by a probable cause standard that Aleh committed
the charged crimes, and ‚that he would be waiving just the right
to that preliminary hearing in anticipation of accepting an offer
that’s being extended by the State.‛ The court then asked Aleh
whether he was prepared to waive his right to a preliminary
hearing. Aleh responded, ‚Yes, Sir.‛ When the court asked
whether he had any questions Aleh responded, ‚Yes. Okay. No
questions.‛ The court bound Aleh over on all charges.

¶3 However, the statements of the court and counsel at the
roll-call hearing confused Aleh ‚as to the bindover and the
charges in the case.‛ Aleh apparently believed that when he
waived his preliminary hearing, the court would bind him over
on the three misdemeanors only and that the felonies would be
dismissed. Aleh’s confusion surrounding the dismissal of the
felonies was understandable. At the roll-call hearing, the State
acknowledged that due to ‚some legal issues on the first two
[felony] counts . . . the State would have a very difficult time
proving‛ those counts. And the court stated, ‚So, the bind over
is with the three misdemeanor counts only, is that correct?‛ The

1. ‚On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.‛ State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d
346 (citations and internal quotation marks omitted).

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State v. Aleh

State and Aleh’s counsel agreed. However, the court clerk asked,
‚Do you want me just to bind everything over to [Judge] Barrett
and, then, from there, go to the misdemeanor? . . . So, he can
dismiss on it?‛ The court, the State, and Aleh’s counsel all
agreed. The court bound Aleh over on all charges.

¶4 Represented by new counsel, Aleh moved to set aside his
waiver of the preliminary hearing. The court denied Aleh’s
motion on the ground that Aleh had knowingly and voluntarily
waived his right to a preliminary hearing. The court found that
Aleh’s original counsel had adequately explained the plea deal
offered by the State: ‚*T+he State would dismiss the two felony
charges if [Aleh] would enter a guilty plea to the three counts of
class B misdemeanors.‛ In other words, the dismissal of the
felony charges against Aleh hinged on his pleading guilty to the
misdemeanor charges. Thus, because Aleh rejected the State’s
plea deal, the court found that Aleh’s ‚claim that the two felony
counts were in fact dismissed and the case was bound over on
the misdemeanors is not an accurate reflection of what
occurred.‛

¶5 We denied Aleh’s petition seeking interlocutory review,
and the supreme court denied his petition for writ of certiorari.
Aleh proceeded to trial on all charges.

Trial

¶6 At trial, Aleh’s neighbor testified that on the night in
question Aleh gave him a ride to meet a girlfriend at a motel. At
the motel, after getting a key to the room and discovering the
girlfriend was not there, Aleh and his neighbor ‚decided to hang
out . . . in the motel.‛ Aleh then called an escort and arranged for
her to meet him at the motel in exchange for cash.

¶7 When the escort arrived, Aleh and another man were in
the motel room. The other man, presumably Aleh’s neighbor, left
and the escort told Aleh that ‚it’s $150 for the hour.‛ Because

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Aleh told her he only had $100, she told him that she ‚could stay
for half the time, or less.‛ After Aleh gave her the money, the
escort went into the bathroom to change clothes. When she came
out she asked Aleh ‚what he wanted to do with his time.‛ She
testified, ‚He asked for sex. I told him that that’s not what we
do. What I can do is a body rub or a striptease.‛ Aleh then asked
for his money back, and the escort told him, ‚I don’t do
refunds.‛

¶8 Aleh looked angry and became very insistent that the
escort give him his money back. The escort, out of a sense of
caution and for ‚self-defense,‛ backed away and then retreated
into the bathroom to get dressed. While in the bathroom, she
called her bouncer to ‚tell him there was a situation.‛ Aleh then
‚busted through the bathroom door.‛ The escort, trying to create
distance between herself and Aleh, got into the bathtub. Aleh
took her cell phone. She crouched down into the tub and
huddled over her purse to try to get her handgun out. She
retrieved the gun and chambered a round, but Aleh came down
on top of her. During the struggle, the gun discharged in the
bathtub. The escort then succeeded in ejecting the magazine
from the gun; she let go of the gun, Aleh stepped away, and she
regained her footing. At this point, the escort returned the $100
and asked Aleh to return her phone. Aleh refused and tried to
trap the escort in the bathroom. The escort braced her feet
against the bathroom door so that Aleh could not lock her in.

¶9 When Aleh moved away from the door, the escort came
out of the bathroom and saw Aleh standing between her and the
front door holding her phone, her gun, and the magazine. The
escort again asked Aleh to give her phone back; when Aleh
refused, she grabbed it out of his hands. Another fight ensued.
Aleh threw her into a shoe rack, and she tried to find protection
by hiding under a chair. Aleh tried to move the chair, but then
‚stopped *and+ he just stood there for a minute and then he ran
out the front door.‛ The escort crawled to the front door to call
for her bouncer, and then she saw the police.

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State v. Aleh

¶10 At trial, Aleh gave a different version of events. Aleh
testified that he gave the escort $100 to ‚hang out, like to have
fun, you know, like she can dance for me, just strip. Like . . .
when you go to [the] strip club.‛ He then testified that when the
escort came out of the bathroom in her underwear she tried to
sell him the ‚full service.‛ When Aleh came to understand that
‚full service‛ included sex, he told her, ‚I don’t want to do this,‛
and asked for his money back. He testified that he walked with
her to the bathroom, and he realized ‚she was struggling with
something inside her purse.‛ Aleh testified that he thought she
might have a Taser in her purse and that she would tase him and
steal his wallet. So, he testified, when he saw something metal
emerge from her purse, he just grabbed it, not even realizing it
was a gun until it went off. After Aleh took the gun away, he
gave the escort her phone back and left the motel room.

¶11 Aleh was charged with robbery and theft, second degree
felonies, and assault, unlawful detention, and sexual solicitation,
class B misdemeanors. A jury convicted him as charged. Aleh
appeals.

ISSUES ON APPEAL

¶12 Aleh raises two issues on appeal. First, Aleh contends that
the trial court erred in denying his motion to withdraw his
waiver of the preliminary hearing. Second, Aleh contends that
the trial court erred by not allowing him to cross-examine the
escort about whether she worked as a prostitute and why she
stopped working as an escort after the incident.

ANALYSIS

I. Preliminary Hearing

¶13 Aleh contends that the trial court erred in denying his
motion to withdraw the waiver of his right to a preliminary

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State v. Aleh

hearing. Aleh argues that he did not knowingly, intelligently, or
voluntarily waive his right to a preliminary hearing, and thus
the trial court’s refusal to reinstate his right to a preliminary
hearing violated his constitutional rights. We review the trial
court’s denial of Aleh’s motion to withdraw his waiver for
correctness. See State v. Hernandez, 2011 UT 70, ¶ 3, 268 P.3d 822.

¶14 ‚The fundamental purpose served by the preliminary
examination is the ferreting out of groundless and improvident
prosecutions.‛ State v. Anderson, 612 P.2d 778, 783 (Utah 1980),
superseded on other grounds by constitutional amendment, Utah
Const. art. I, § 12 (1995). Doing so ‚relieves the accused from the
substantial degradation and expense incident to a modern
criminal trial when the charges against him are unwarranted or
the evidence insufficient.‛ Id. at 784. Historically, our courts
viewed the preliminary hearing as serving secondarily as ‚a
discovery device in which the defendant is not only informed of
the nature of the State’s case . . . but is provided a means by
which he can discover and preserve favorable evidence.‛ Id.
However, a constitutional amendment eliminated this secondary
purpose in 1995. That constitutional amendment declared that
the function of the preliminary hearing ‚is limited to
determining whether probable cause exists unless otherwise
provided by statute.‛ Utah Const. art. I, § 12. No statute provides
otherwise. See Utah Code Ann. § 78A-2-220(1)(f) (LexisNexis
2012) (providing that a magistrate has the authority to conduct a
preliminary examination ‚to determine probable cause‛); see also
State v. Timmerman, 2009 UT 58, ¶¶ 14–15, 218 P.3d 590; State v.
Arghittu, 2015 UT App 22, ¶ 30, 343 P.3d 709. Accordingly, the
preliminary hearing’s erstwhile primary purpose has become its
sole purpose: determining whether probable cause exists.

¶15 At a preliminary hearing, ‚the prosecution has the burden
of producing believable evidence of all the elements of the crime
charged, but this evidence does not need to be capable of
supporting a finding of guilt beyond a reasonable doubt.‛ State
v. Virgin, 2006 UT 29, ¶ 20, 137 P.3d 787 (citation and internal

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quotation marks omitted). The determination of guilt beyond a
reasonable doubt rests with the fact-finder at trial. See id. ¶ 21.
‚Therefore, ‘an error at the preliminary stage is cured if the
defendant is later convicted beyond a reasonable doubt.’‛
Thomas v. State, 2002 UT 128, ¶ 7, 63 P.3d 672 (quoting State v.
Quas, 837 P.2d 565, 566 (Utah Ct. App. 1992)); accord State v.
Rhinehart, 2007 UT 61, ¶ 20, 167 P.3d 1046 (stating that ‚a
subsequent conviction beyond a reasonable doubt cures any
bindover defect‛ (citing State v. Winfield, 2006 UT 4, ¶ 26, 128
P.3d 1171)).

¶16 This is so even when the error consists of a complete
deprivation of a preliminary hearing. See Hernandez, 2011 UT 70,
¶ 29 n.3. In Hernandez, the Utah Supreme Court considered
whether the Utah Constitution entitled a defendant charged with
a class A misdemeanor to a preliminary hearing. Id. ¶ 1. The
court held that it did. Id. Recognizing the sweep of its decision—
since many persons convicted of class A misdemeanors had
undoubtedly not received preliminary hearings—the court
explained that its decision applied only prospectively to ‚those
cases in which there has been no guilty plea or finding of guilt as
of the date of this decision.‛ Id. ¶ 29 n.3. The holding in
Hernandez accordingly did not apply to defendants charged with
and convicted of class A misdemeanors—despite the complete
deprivation of their right to a preliminary hearing. This result
was sound ‚*b+ecause the failure to hold a preliminary hearing is
mooted by the entry of a guilty plea or finding of guilt at trial.‛
Id.

¶17 This rule makes sense. A guilty verdict ‚means not only
that there was probable cause to believe that the defendant[]
[was] guilty as charged, but also that [he is] in fact guilty as
charged beyond a reasonable doubt.‛ United States v. Mechanik,
475 U.S. 66, 70 (1986). Thus, a subsequent conviction renders any
error in the preliminary proceeding harmless beyond a
reasonable doubt. See id. Accordingly, not only would
conducting a post-conviction preliminary hearing serve no

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State v. Aleh

purpose, it would compound the ‚degradation and expense‛
that the preliminary hearing serves to protect against. See
Anderson, 612 P.2d at 784.

¶18 Because conviction beyond a reasonable doubt cures any
flaw in a preliminary hearing—including the complete
deprivation of a preliminary hearing—it necessarily cures any
error the trial court may have made in accepting a defendant’s
waiver of the right to a preliminary hearing. Accordingly, Aleh’s
conviction of all charges beyond a reasonable doubt cured any
possible error attending his waiver of a preliminary hearing.2

II. Impeachment

¶19 Aleh next contends that the trial court erred by limiting
his cross-examination of the escort’s testimony under rules 412
and 608 of the Utah Rules of Evidence. ‚Even if the *trial+ court

2. In a rule 24(j) letter filed after oral argument in this case, Aleh
brought to our attention State v. Jensen, 136 P.2d 949 (Utah 1943).
In Jensen, our supreme court asked, ‚Was defendant given a
preliminary hearing for the offense of which she was convicted?
If she was not the cause must be reversed, regardless of the other
claimed errors in the trial.‛ Id. at 951. The court continued, ‚That
defendant cannot lawfully be tried and convicted on a charge
upon which she was not given, or on which she did not waive a
preliminary hearing is elemental.‛Id. at 951–52. To the extent
that Jensen stands for the proposition that a conviction does not
cure any error in the preliminary hearing, including the
complete deprivation of a preliminary hearing, we conclude that
the more recent precedent on which we rely implicitly overruled
Jensen on this point. See State v. Hernandez, 2011 UT 70, ¶ 29 n.3,
268 P.3d 822; State v. Rhinehart, 2007 UT 61, ¶ 20, 167 P.3d 1046;
State v. Winfield, 2006 UT 4, ¶ 26, 128 P.3d 1171; Thomas v. State,
2002 UT 128, ¶ 7, 63 P.3d 672; see also United States v. Mechanik,
475 U.S. 66, 70 (1986).

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State v. Aleh

did err, we will not reverse if that error was harmless.‛ State v.
Perea, 2013 UT 68, ¶ 97, 322 P.3d 624. ‚Harmless errors are errors
which, although properly preserved below and presented on
appeal, are sufficiently inconsequential that we conclude there is
no likelihood that the error affected the outcome of the
proceedings.‛ State v. Hamilton, 827 P.2d 232, 240 (Utah 1992)
(citation and internal quotation marks omitted). Accordingly, we
will not reverse the trial court’s determination unless, absent the
error, ‚the likelihood of a different outcome *is+ sufficiently high
to undermine confidence in the verdict.‛ Id. (citation and internal
quotation marks omitted). Assuming without deciding that the
trial court committed evidentiary error, and that Aleh preserved
an appellate challenge to that error, we conclude that any error
was harmless.

¶20 In his opening statement, Aleh’s counsel referred to the
escort as a ‚prostitute‛ fourteen times. Yet the escort consistently
denied ever working as a prostitute. When she took the stand as
a witness for the State, she testified that on the night in question
she was working as an escort. She described escorting as ‚adult
entertainment‛ where the escort might ‚*d+o public dates, body
massaging, stripping, *and+ bachelor parties.‛ She also testified
that her company held meetings with police officers and
attorneys who apprise escorts ‚of all of the laws and what [they]
can and can’t do,‛ and that during her employment as an escort
she obeyed those laws.

¶21 The escort also testified that she quit working as an escort
‚[a] few months after‛ the incident in question. Aleh’s counsel
pressed her on this point, stating, ‚Okay, so since this time—
since this incident, July 18, 2010, you took no more escort work?‛
She replied, ‚No, I did for a few months and then I quit.‛ She
explained that she quit a few months later because ‚[a]fter this,
every time I went on a call my heart would race and I would get
nervous, and I was too scared. It just made it too hard.‛ Aleh’s
counsel peppered her with questions about whether, as an
escort, she operated within the bounds of the law:

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State v. Aleh

Q. [A]nd it’s your testimony that you were aware
of the law regulating the escort profession?

A. Yes.

Q. You kept your activity within the limits of the
law, correct?

A. Yes.

Q. That’s something you strove to do, correct?

A. Yes.

Q. You limited your activity to stripteases?

A. Yes.

Q. Escorting men to parties and functions?

A. Yes.

Q. And massages, correct?

A. Yes. At the time, massages were legal.

....

Q. Still legal, correct?

A. No.

....

Q. So you kept it legal, is what you’re saying?

A. Yes.

Then Aleh’s counsel, in response to the escort’s adamant
testimony that she worked within the bounds of the law asked,
‚You learned [to keep it legal+ the hard way; isn’t that right?
You’ve had your run-ins with the law in connection with being
an escort?‛ The State objected on the basis that the question

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State v. Aleh

violated rule 412 of the Utah Rules of Evidence.3 After a
discussion at the bench and off the record, the trial court
sustained the State’s objection.

¶22 On appeal, Aleh contends that the trial court erred in not
allowing him to question the escort on cross-examination about
her past ‚run-ins‛ with law enforcement. Specifically, Aleh
argues that rule 608(b) of the Utah Rules of Evidence permitted
him to attack the escort’s credibility on cross-examination.4 The
State contends that the trial court did not abuse its discretion in
prohibiting Aleh’s inquiry into the escort’s prior encounters with
law enforcement and that even if the trial court erred, any error
was harmless. We agree with the State on the latter point, which
disposes of this claim.

3. Rule 412 states in relevant part:
The following evidence is not admissible in a
criminal proceeding involving alleged sexual
misconduct: (1) evidence offered to prove that a
victim engaged in other sexual behavior; or (2)
evidence offered to prove a victim’s sexual
predisposition.
Utah R. Evid. 412(a).

4. Rule 608(b) states in relevant part:
Except for a criminal conviction under Rule 609,
extrinsic evidence is not admissible to prove
specific instances of a witness’s conduct in order to
attack or support the witness’s character for
truthfulness. But the court may, on cross-
examination, allow them to be inquired into if they
are probative of the character for truthfulness or
untruthfulness of . . . the witness . . . .
Utah R. Evid. 608(b)(1) (emphasis added).

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State v. Aleh

¶23 Aleh argues that the exclusion of the testimony his
questions would have elicited was ‚reversible error.‛ He asserts
that the evidence in this case largely boiled down to ‚a matter of
‘he said, she said,’‛ and thus ‚credibility was a critical factor in
determining whether *the escort’s+ allegations were true beyond
a reasonable doubt.‛ Specifically, Aleh posits that ‚there is a
reasonable likelihood that *the escort’s+ credibility as the main
prosecution witness would have been tainted had the jury heard
about her encounters with law enforcement, as well as the fact
that she was still working as an escort just four weeks later.‛
Aleh concludes that had the trial court allowed him to pursue
the proposed line of inquiry it ‚could have tipped the scale in
*his+ favor.‛

¶24 Under the rules of evidence, a party may claim error in a
ruling excluding evidence only if, among other things, that
‚party informs the court of its substance by an offer of proof,
unless the substance was apparent from the context.‛ Utah R.
Evid. 103(a). This rule serves an appellate purpose, as ‚it is
essentially impossible to demonstrate prejudice in the absence of
a proffer of what the excluded evidence would show.‛ Huish v.
Munro, 2008 UT App 283, ¶ 8, 191 P.3d 1242.

¶25 But the record before us contains something even better
than a proffer. During a recess and outside the presence of the
jury, the trial court, to its credit, allowed Aleh to make a record
of the escort’s answers to counsel’s impeachment questions.
Thus, we have the benefit of knowing the answers to the
questions the trial court did not allow. The escort’s answers
revealed that on two occasions apparent clients turned out to be
undercover police officers. But in neither case was she convicted,
charged, or even arrested for prostitution:

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State v. Aleh

Q. Now, it was your testimony that you don’t have
sex with your clients, correct?

A. Yes.

Q. It was your testimony that you kept your
conduct within the parameters of the law, correct?

A. Yes.

Q. So all you offered was stripteases and
massages?

A. Yes.

Q. You call them ‚erotic massages,‛ but that’s just
because you’re wearing lingerie?

A. Yes.

Q. Okay, but you have had run-ins with the law in
connection with being an escort, correct?

A. Yes.

Q. Okay, in fact four weeks, just about four weeks
after this incident . . . you went to [a hotel] in West
Valley City, correct?

A. No.

Q. You didn’t?

A. It was [a different hotel].

Q. Okay . . . are you sure about that?

A. Yes.

....

Q. You were going to visit a client, correct?

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State v. Aleh

A. Yes.

....

Q. [W]hat were you going to do?

A. It was a small party.

Q. Okay, in your purse you had handcuffs, right?

A. Yes.

Q. You had lubricant?

A. Yes.

Q. Okay, a [T]aser?

A. Yes.

....

Q. Okay, the client turned out to be an undercover
West Valley Police Officer, isn’t that correct?

A. Yes.

Q. Okay, and also before 2010, around 2005, was
that when you went to [another hotel]?

A. Yes.

....

Q. You went there to meet a client?

A. Yes.

....

Q. And the client turned out to be an undercover
police officer?

A. Yes.

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Again, in this cross-examination, the escort denies that she
engaged in prostitution, and her police encounters, if anything,
confirm that denial because no arrest resulted, much less a
conviction. Accordingly, as Aleh himself acknowledges in his
brief, this testimony ‚would not necessarily have impeached [the
escort+.‛

¶26 We agree. The excluded testimony has little if any
impeachment value. It merely establishes that the escort worked
within the bounds of the law, a fact to which she had already
testified. True, the handcuffs and lubricant might imply a
meretricious motive. But these items did not even create
probable cause to justify an arrest by the undercover officer.
Indeed, the take-away from the escort’s encounters with police
was that she had not been engaging in prostitution. Thus, if
anything, the excluded testimony would have corroborated the
escort’s version of events at trial.

¶27 Aleh also sees ‚a reasonable likelihood that *the escort’s+
credibility as the main prosecution witness would have been
tainted had the jury heard . . . that she was still working as an
escort just four weeks later.‛ The escort testified that she quit
working as an escort ‚[a] few months after‛ the incident with
Aleh because she ‚was too scared.‛ Aleh argues that had the
trial court allowed him to question the escort about her
encounters with law enforcement, ‚*t+here is a reasonable
likelihood the jury would have believed that it was her
encounter with the police that caused her to quit working as an
escort,‛ and not her almost getting shot during the scuffle with
Aleh.

¶28 We conclude that questioning the escort about her
encounters with law enforcement would not have materially
impeached her testimony. The first police encounter with which
Aleh wanted to confront the escort occurred in 2005. But no juror
was likely to see this encounter as the cause of her abandoning
her career five years later. The second police encounter with

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State v. Aleh

which Aleh wanted to confront the escort occurred
approximately one month after the incident with Aleh. This
encounter presents a somewhat closer question. But it was
undisputed at trial that the escort had engaged in a struggle with
a client (Aleh) that resulted in a gun being discharged in the
narrow confines of a bathroom. Reasonable jurors could
conclude that such an ordeal would cause any but the most
desperate or deluded escort to reconsider her occupation—
whoever initiated the scuffle. Compared to this brush with
death, an encounter with a police officer that resulted in no
conviction, no charge, and no arrest would appear, in the mind
of any reasonable juror, relatively innocuous. We are thus not
persuaded that preventing Aleh’s counsel from delving into the
police encounters would have any effect—much less an
outcome-determinative effect—on the jury’s assessment of the
case. We therefore conclude that any possible error by the trial
court was ‚sufficiently inconsequential that we *see+ . . . no
reasonable likelihood that the error affected the outcome of the
proceedings.‛ State v. Hamilton, 827 P.2d 232, 240 (Utah 1992)
(citation and internal quotation marks omitted). Accordingly, we
affirm the judgment of the trial court. See id.

CONCLUSION

¶29 In sum, Aleh’s convictions cured any error related to his
waiving a preliminary hearing. In addition, any error in limiting
his cross-examination of the escort was harmless. The judgment
of the trial court is accordingly affirmed.

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