State v. Crippen

2016 UT App 152

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MATTHEW ALAN CRIPPEN,
Appellant.

Memorandum Decision
No. 20140051-CA
Filed July 21, 2016

Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 121910314

Nathalie S. Skibine, Attorney for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGE J. FREDERIC VOROS JR. and SENIOR JUDGE RUSSELL
W. BENCH concurred.1

ORME, Judge:

¶1 Matthew Alan Crippen appeals his convictions on two
counts of forcible sodomy, first degree felonies, see Utah Code
Ann. § 76-5-403(2), (4) (LexisNexis 2012), primarily on the
ground that the testimony of the victim (Victim) was
inconsistent to such an extent that Victim’s account was
inherently improbable and therefore could not be reasonably
relied upon to convict him beyond a reasonable doubt. We
affirm.

1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
State v. Crippen

¶2 Although Crippen disputes the reliability of Victim’s
account of the events that precipitated this case, we recite the
facts in the light most favorable to the jury verdict. See State v.
Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116 (‚When reviewing a jury
verdict, we examine the evidence and all reasonable inferences
drawn therefrom in a light most favorable to the verdict, and we
recite the facts accordingly.‛).

¶3 Crippen lived with Victim, her son, her sister, her
grandmother, and another male. Victim’s sister was Crippen’s
girlfriend. Victim suffers from apparent, but undiagnosed,
intellectual disabilities. She also suffers from seizures, a
condition that has precluded her from obtaining a driver license.

¶4 Two weeks after Crippen moved in with Victim and her
family, Victim’s sister asked Victim to accompany Crippen as he
went to pay for a rental car. According to Victim, once they were
at the rental car agency parking lot, Crippen asked Victim if she
thought he was sexy, and when she said no, he pulled out his
penis and told Victim to put it in her mouth. Crippen attempted
to force his penis into Victim’s mouth, but it touched only her
lips. Victim then tried to exit the car, whereupon Crippen told
Victim that he would drive her home. Instead, he drove to
another location, took out his penis once more, and this time he
succeeded in forcing it into her mouth, following which he
ejaculated ‚a little.‛ Victim then wiped her mouth on her shirt.

¶5 After the assault was over, Crippen warned Victim ‚not
to tell anybody‛ and to ‚keep quiet.‛ The very next day,
however, Victim reported the assault to her sister and
grandmother. When a police officer interviewed Victim, she
gave the officer the shirt she had been wearing at the time of the
assault. Later, she gave another officer a pair of boxer shorts that
Victim believed belonged to Crippen and that Victim had

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State v. Crippen

collected two days after the assault.2 She told the police, as
recounted by an officer at trial, that Crippen ‚forced her to
perform oral sex on him in the vehicle at one of the places they
stopped.‛ When an officer interviewed Crippen, he denied even
knowing Victim or Victim’s sister, his girlfriend.

¶6 Some time later, Crippen was jailed. While he was in jail,
the State recorded a phone conversation between him and an
unidentified woman in which he acknowledged having had oral
sex with Victim. In Crippen’s telephone account, Victim put her
hand on his penis and referred to it as ‚a little one.‛ Crippen,
‚insulted‛ and ‚pissed,‛ told ‚this bitch‛ to ‚put *his penis+ in
*her+ mouth.‛ Although Crippen claimed during the phone
conversation not to have ejaculated, he expressed concern that
his DNA might be found on Victim’s shirt.3 He also denied that
their sexual contact was forcible and said of Victim, ‚She’s lying,
she’s probably not very good at lying, and so it probably won’t
go too far.‛

2. An officer of the Unified Police Department interviewed
Victim first and collected Victim’s shirt. After discovering that
the alleged assault occurred within the jurisdiction of the
Murray Police Department, the officer referred Victim’s
complaint there. Three months later, an officer from the Murray
Police Department conducted a follow-up interview of Victim,
interviewed Crippen, and took the boxer shorts.

3. Police took a swab of Crippen’s mouth and compared it to the
shirt and the boxer shorts. Although seminal fluid residue was
found on the boxer shorts, it did not match Crippen’s DNA. No
semen was found on Victim’s shirt. These results are largely
irrelevant, given Crippen’s admission during the phone call that
a sexual encounter between him and Victim in fact occurred.

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State v. Crippen

¶7 Prior to trial, Crippen moved to exclude evidence of
Victim’s seizures and mental disability on the ground that
introduction of such evidence would be unduly prejudicial to
Crippen and unfairly cause the jury to feel sympathetic toward
Victim. The State explained that it intended to introduce such
evidence in order to ‚allow the jury to have a basis to determine
whether she’s even capable of consenting.‛ Because the State
had not identified an expert to testify as to Victim’s intellectual
abilities and because the State did not provide sufficient advance
notice to Crippen that it was going to pursue that argument, the
trial court ruled that evidence of Victim’s mental capacity could
not be introduced. The trial court noted, however, that to the
extent Victim’s intellectual disability was ‚obvious, there might
be some inference that the jury *could+ make on its own.‛4

¶8 Although not all aspects of Victim’s trial testimony were
consistent with the accounts she gave police, her testimony was
consistent with her claim that Crippen sexually assaulted her at
the rental car agency. She also testified to the assault at the
second location—an accusation that the officers who interviewed
Victim did not recall from their interviews with her. She further
volunteered that she lacked a driver license due to seizures and
that she had been raped many times before.

4. Although we cannot know precisely how the jury evaluated
her testimony, the State points to several aspects of Victim’s
testimony that may have suggested to the jury that she suffered
‚intellectual challenges.‛ For example, Victim testified that she
was unsure which city she lived in, that Crippen tried ‚to open‛
his penis, and that she believed her shirt had evidence of the
assault on it because Crippen touched it during the assault. The
prosecutor also found it necessary to refocus Victim’s
meandering testimony on more than one occasion.

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State v. Crippen

¶9 Defense counsel requested a mistrial after Victim’s
statement about her seizures and objected after her second
reference to having been raped before, but the trial court
declined to grant a mistrial because it concluded that the
statements were of minimal impact and ‚would not garner any
particular sympathy‛ for Victim given ‚the context in which [the
statements] came out.‛ The trial court further concluded that
none of these statements were prejudicial to Crippen, especially
as the prior rapes were not attributed (or attributable) to him.
The court did, however, give a curative instruction to the effect
that the jury was ‚not *to+ let any bias, sympathy or prejudice
that [it might] feel toward one side or the other influence [its]
decision in any way.‛

¶10 In her cross-examination of Victim, defense counsel
focused on purported inconsistencies between the various
versions of Victim’s story as shared with police, at the
preliminary hearing, and at trial. When pressed, however,
Victim maintained her basic story and suggested that perhaps
the officers misunderstood her during her interviews because
her apartment was very noisy during the interviews. On the
ground that Victim’s testimony was inherently improbable,
Crippen moved the trial court for a directed verdict, which was
denied.

¶11 After submission of the case to the jury, it returned a
guilty verdict. Crippen appeals.

I. Victim’s Testimony Was Not Inherently Improbable.

¶12 As we recently noted, ‚*a+s long as there is some evidence
from which all the necessary elements of the charged offenses
can be proved, there is sufficient evidence to find the defendant
guilty beyond a reasonable doubt.‛ State v. Johnson, 2015 UT App
312, ¶ 11, 365 P.3d 730. Although this court will reverse a
conviction where ‚the evidence [presented] is sufficiently
inconclusive or inherently improbable that reasonable minds

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State v. Crippen

must have entertained a reasonable doubt that the defendant
committed the crime of which he was convicted,‛ see State v.
Hirschi, 2007 UT App 255, ¶ 16 n.7, 167 P.3d 503 (alteration in
original) (citation and internal quotation marks omitted), a
‚*d+efendant’s personal view of events does not . . . render the
State’s evidence sufficiently inconclusive or inherently
improbable so as to warrant a reversal,‛ Johnson, 2015 UT App
312, ¶ 12 (citation and internal quotation marks omitted).

¶13 In judging whether testimony is inherently improbable, a
witness’s inconsistency is not dispositive.5 See State v. Marks,
2011 UT App 262, ¶ 79, 262 P.3d 13 (declining to treat a sexual
abuse victim’s testimony as inherently improbable despite the
victim’s inconsistent testimony regarding his own age and
arousal). See also State v. Phillips, 2012 UT App 286, ¶ 24 n.7, 288
P.3d 310 (explaining that it is ‚not unusual that a child’s
testimony be somewhat inconsistent‛ in a case of sexual abuse)
(citation and internal quotation marks omitted). Similarly, ‚the
consideration of whether *a victim’s+ testimony is inherently
improbable must be undertaken with [his or her intellectual]
limitations in mind, lest we adopt a standard that leaves the
most vulnerable victims of sexual abuse without recourse.‛

5. For this reason, this case is unlike State v. Robbins, 2009 UT 23,
210 P.3d 288, upon which Crippen relies for the proposition that
Victim’s testimony was too inherently improbable to form the
basis for his conviction when, as he sees it, there was no other
direct or circumstantial evidence on which to convict him. His
premise is incorrect. His admissions over the telephone
corroborate Victim’s account in significant ways. Further, in
Robbins the Supreme Court stated that the victim made ‚patently
false statements‛ during the course of her testimony. Id. ¶ 22.
Crippen has not demonstrated that Victim’s testimony, although
it was not a model of clarity and consistency, was ‚patently
false.‛

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State v. Crippen

Marks, 2011 UT App 262, ¶ 78. See also State v. Adams, 955 P.2d
781, 783 (Utah Ct. App. 1998) (noting that all witnesses, even the
intellectually disabled or incapacitated, are presumed competent
to testify and holding that evidence a person ‚could not spell her
name, count past twenty-nine, or correctly identify her belly
button, knee, or vagina‛ did not demonstrate that the person
could not ‚appreciate the need to tell the truth‛ or communicate
information accurately to others). Failure to allow for some
inconsistency in the testimony of mentally challenged
individuals would likely prevent any charges from being
brought against abusers of such individuals. See Kate Stone
Lombardi, Rape and the Mentally Retarded, N.Y. Times (July 25,
1993), http://www.nytimes.com/1993/07/25/nyregion/rape-and-
the-mentally-retarded.html.

¶14 Much like the victim in Phillips, Victim’s testimony was
corroborated by other evidence. See 2012 UT App 286 ¶ 24. In
Phillips, another case of sexual assault in which there was no
DNA evidence, see id. ¶¶ 4–5, the victim’s brother corroborated a
statement made by the defendant, and police corroborated the
victim’s account of the physical condition of the defendant’s
room, id. ¶ 24. Here, Crippen himself acknowledged that he had
engaged in oral sex with Victim in much the same manner as
Victim alleged—aside from the question of consent.

¶15 We also note that in this he-said-she-said situation,
Crippen’s own credibility was severely compromised both by his
initial denial to police that he knew Victim, much less his own
girlfriend, and by the recording of his jailhouse phone call. As
noted, Crippen lied about whether he knew Victim when police
first interviewed him. But at trial, despite his initial statement to
police, it was conceded that he lived with Victim at the time of
the alleged assault, and a recording was played of his telephone-
call admission to having had oral sex with her. Moreover,
although Crippen’s statements during the jailhouse phone call
were not evidence of a lack of consent, those statements do tend

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State v. Crippen

to corroborate Victim’s overall account. As Victim testified, and
as Crippen admitted during the phone call, the two did engage
in oral sex. Crippen also acknowledged that he called Victim a
‚bitch‛ and that he told her to put his penis in her mouth, a detail
that closely matches Victim’s account. And while we agree with
Crippen that his ‚statements to the police that he did not know
[Victim] or her sister [were] not actual evidence of *his+ guilt,‛
such statements obviously called his overall credibility into
question.

¶16 The jury was not obligated to believe Crippen’s account of
events, and ‚*i+t [was] the jury’s duty—not the appellate
court’s—to weigh that evidence and make a determination of
fact.‛ State v. Johnson, 2015 UT App 312, ¶ 11, 365 P.3d 730. Given
that ‚disregarding witness testimony as inherently false should
be an uncommon course of action,‛ which appellate courts will
undertake only when the witness’s credibility is so far
impeached as to be unbelievable by a reasonable jury, see Marks,
2011 UT App 262, ¶ 78, in the instant case, we conclude that
Victim’s testimony was not inherently improbable.

II. Because Crippen Has Not Shown He Was Prejudiced by
Victim’s Challenged Statements, His Claims Do Not Merit
Reversal.

¶17 During Crippen’s trial, Victim made three statements that
Crippen argues the trial court should have dealt with differently.
First, after Victim stated that she did not ‚know how to drive‛
when the prosecutor asked her who was driving on the day in
question, the prosecutor followed up with the question, ‚You
don’t have a driver’s license?‛ Instead of answering yes or no,
Victim volunteered the explanation, ‚I have seizures.‛ Crippen’s
counsel immediately objected and then moved for a mistrial. The
trial court denied the motion, citing the context in which the
remark was made, namely that the remark was inadvertent and
elicited no undue sympathy for Victim.

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¶18 Second, when the prosecutor asked why she was scared
when Crippen pulled out his penis, Victim replied, ‚I’ve been
raped all my life.‛ Crippen did not object at the time, but did
when Victim later repeated the claim.

¶19 Third, Victim stated that she told Crippen, after he
exposed his penis to her, to ‚leave me alone and move . . . I’d
been raped plenty of times.‛ At this point, counsel for Crippen
did object. After a brief discussion at the bench, direct
examination continued. Following direct examination, Crippen’s
counsel put on the record that his objection was to the
prosecution’s leading questions. Crippen’s appellate counsel
successfully moved to correct the record to reflect that the
objection was also premised on the ground that Victim’s
statement was ‚irrelevant‛ and ‚unfairly prejudicial.‛ See Utah
R. App. P. 11(a) (outlining procedure for correcting or modifying
the record on appeal when necessary to ‚truly disclose*+ what
occurred in the trial court‛).

¶20 Before jury deliberation began, the trial court instructed
the jury to lay aside any prejudices against, or sympathies for,
either party in reaching its decision. Crippen now argues that the
trial court’s failure to declare a mistrial or otherwise deal more
forcefully with Victim’s references to her propensity for seizures
and to the fact that she had been raped before, albeit clearly not
by Crippen, constitutes reversible error. For the reason that
Crippen has not demonstrated prejudice, we disagree.

A. Victim’s Mention of the Fact That She Suffers from
Seizures and Thus Cannot Obtain a Driver License Was
Not Prejudicial and Does Not Warrant Reversal.

¶21 ‚A trial court’s denial of a motion for a mistrial will not be
reversed absent an abuse of discretion,‛ State v. Wach, 2001 UT
35, ¶ 45, 24 P.3d 948, and we will not determine that a court
abused its discretion ‚*u+nless the record clearly shows that the
trial court’s decision is plainly wrong in that the incident so

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State v. Crippen

likely influenced the jury that the defendant cannot be said to
have had a fair trial,‛ State v. Butterfield, 2001 UT 59, ¶ 46, 27 P.3d
1133 (citation and internal quotation marks omitted).
Accordingly, in order to win reversal, a defendant must
demonstrate prejudice by ‚show*ing+ that there is a substantial
likelihood that the jury would have found him not guilty had the
improper statement not been made.‛ Id. ¶ 47.

¶22 We conclude that Victim’s testimony to the effect that her
seizures prevented her from obtaining a driver license did not
prejudice Crippen because such testimony (1) had no direct
bearing on the facts of Crippen’s case, (2) had no connotation of
frailty such that the jury likely developed unfair sympathy for
Victim, (3) was not the result of prosecutorial misconduct,6 and
(4) was mitigated via a curative instruction.

6. For this reason, we conclude that the cases Crippen cites in
support of his position—State v. Akok, 2015 UT App 89, 348 P.3d
377, and State v. Campos, 2013 UT App 213, 309 P.3d 1160—are
inapposite. Whereas in Campos the prosecutor improperly
argued that the jury should punish the defendant because the
victim could no longer ‚walk his daughter down the aisle,‛ 2013
UT App 213, ¶¶ 48, 53, and in Akok the prosecutor contended
that the jury ‚ha*d+ a duty to protect the alleged victim‛ from the
defendant, 2015 UT App 89, ¶¶ 15–16 (alteration in original), in
the instant case Crippen does not allege prosecutorial
misconduct. And the prosecutor did not intentionally elicit the
challenged statement, nor did he follow up on it once it was
made. Even more tellingly, in neither Campos nor Akok did we
rely on the prohibited statements alone in reaching our decisions
to reverse. See Akok, 2015 UT App 89, ¶¶ 24–25 (noting that the
trial court declined to give a stipulated curative instruction
addressing the prosecutorial misconduct and holding that in
doing so it failed to ‚neutralize the prejudicial effect of the
(continued…)

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State v. Crippen

B. Victim’s Two References To Having Been Raped Before
Did Not Prejudice Crippen and Thus the Trial Court’s
Failure To Exclude Those Statements Does Not Warrant
Reversal.

¶23 Crippen argues that his objection to Victim’s second
reference to being raped preserves his claim that the trial court
should have excluded both of Victim’s statements that she had
been raped, in accordance with rule 403 of the Utah Rules of
Evidence. Assuming, without deciding, that Crippen is right as
to preservation, ‚*w]e review a trial court’s decision to admit or
exclude evidence under rule 403 using an abuse of discretion
standard.‛7 State v. Cristobal, 2012 UT App 181, ¶ 3, 282 P.3d 1064

(…continued)
prosecutor’s statement‛); Campos, 2013 UT App 213, ¶¶ 71–72
(noting that the cumulative effect of the prosecutorial
misconduct plus a jury instruction that erroneously shifted the
burden of proof from the State to the defendant merited reversal
of the defendant’s conviction). Given that no such circumstances
existed in the case now before us, Akok and Campos do not
require reversal here.

7. For its part, the State, in its brief, argues that because Crippen
did not ‚ask the trial court to remedy any perceived prejudice
from either statement . . . [,] move for a mistrial based on these
statements, . . . ask the trial court to strike the testimony[,] or
give the jury a curative instruction,‛ Crippen failed to put the
trial court on notice as to any further complaint about these
statements and ‚did not alert the trial court of the specific error
‘complained of.’‛ See State v. Pinder, 2005 UT 15, ¶ 45, 114 P.3d
551 (‚Generally speaking, a timely and specific objection must be
made in order to preserve an issue for appeal.‛) (emphasis
added). Thus, the State insists that Crippen did not preserve the
issue for appeal and that we should review this issue only for
(continued…)

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(citations, brackets, ellipses, and internal quotation marks
omitted). And even assuming, without deciding, that an abuse of
discretion occurred, ‚we will not disturb *a trial court’s+ ruling
unless the appealing party establishes an abuse of discretion
resulting in prejudice.‛ Hancock v. True & Living Church of Jesus
Christ of Saints of the Last Days, 2005 UT App 314, ¶ 10, 118 P.3d
297 (citation and internal quotation marks omitted). Because a
party must prove both that the trial court abused its discretion
and that the alleged abuse resulted in prejudice to the party,
failure to prove either is determinative of the outcome. See
Woodward v. LaFranca, 2016 UT App 141, ¶ 10 (noting that ‚even
if we were to conclude that the trial court [erred] . . . , we would
nevertheless affirm where it is clear in context that, despite the
[error], a contrary outcome as to that particular [issue] . . . would
not change the trial court’s ultimate decision‛). Cf. State v. Potter,
2015 UT App 257, ¶ 7, 361 P.3d 152 (‚In the event it is easier to
dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, we will do so without analyzing [the other
required elements of such a claim].‛) (citation and internal
quotation marks omitted).

¶24 Victim never stated, or even implied, that Crippen had
raped her on any other occasion. Indeed, the implication of her
statements that she had been ‚raped plenty of times‛ and ‚all
[her] life‛ was that a person or persons other than Crippen had
assaulted her because Crippen had only lived with Victim and
her family for two weeks as of the time of the assault. Thus, it is
difficult to see how the jury would have inferred, as Crippen

(…continued)
plain error. See State v. Bakalov, 1999 UT 45, ¶ 56, 979 P.2d 799.
Because we conclude, however, that Crippen has not shown that
the alleged error had a prejudicial effect in any event, we need
not determine whether Crippen actually preserved this
argument.

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argues it did, that he had raped her on multiple prior occasions
over a long span of time.

¶25 In sum, Crippen’s challenges to his conviction fail.
Victim’s testimony was not inherently improbable such that
there was insufficient evidence to convict Crippen beyond a
reasonable doubt, particularly given Crippen’s partial
corroboration of that testimony. And because Crippen also has
not shown that Victim’s allegedly improper statements
prejudiced him at trial, reversal of his conviction is not
warranted.

¶26 Affirmed.

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