¶ 1 Defendant Kenneth J. Webster appeals his conviction of one count of wrongful appropriation of a motor vehicle. Specifically, he argues that out-of-court statements made by his wife, as well as his statement regarding a prior arrest for a similar offense, should not have been admitted at trial. He also challenges the trial court's determination that, under the statutory scheme in effect at the time, wrongful appropriation of a motor vehicle is a third degree felony. We clarify the law with respect to the appropriate classification of wrongful appropriation of a motor vehicle; we reverse Webster's conviction based on evidentiary errors; and we remand for a new trial.
¶ 2 "We view the facts in the light most favorable to the jury verdict and recite them accordingly." State v. Loose, 2000 UT 11, ¶ 2, 994 P.2d 1237. Webster began work as a salesperson for Intermountain Volkswagen in June of 1998. Earlier that month, Intermountain had acquired a 1988 Nissan Stanza as a trade-in. The Nissan was kept with
¶ 3 On July 6 or 7, 1998, Intermountain's lot coordinator saw Webster drive the Nissan from the lot but did not see Webster return with the car, and the lot coordinator did not see the car again on the lot before July 10. A day or two later, only two weeks after beginning work, Webster quit his job at Intermountain.
¶ 4 On July 10, 1998, an Intermountain manager drove to the apartment complex where Webster lived. The manager found the Nissan in a parking stall at the apartment complex and notified police. Detective Cupello arrived and verified that the car in the parking lot was the missing Nissan belonging to Intermountain. Detective Cupello then went to Webster's apartment and asked Webster if he had taken the car. Webster said he had never touched nor driven the car, whereupon Detective Cupello arrested Webster. A search of the car revealed no personal belongings, the police took no fingerprints from the car, and the keys to the car were never found.
¶ 5 While driving Webster to jail, Detective Cupello asked Webster if he had been arrested before. Remarkably, Webster volunteered that he had once been arrested in Virginia for "driving a vehicle off of a dealership lot."
¶ 6 That evening, after booking Webster into jail, Detective Cupello called Webster's wife. Detective Cupello informed her who he was and told her that her husband had been arrested for possession of a stolen vehicle. He described the car and explained that it had been found in the parking lot of their apartment complex and that Webster had denied ever having touched the car. Webster's wife responded, "He's lying." She explained that she and Webster had both been driving the car, that she had been driving in the car with Webster just two days earlier, and that Webster claimed it was all right for him to have the car. She said she believed that Webster had taken the car back to Intermountain on July 8 when he quit his job. When Detective Cupello told her that Webster denied ever driving the car, she said, "We have a problem."
¶ 7 At trial, Webster did not testify. The trial court, however, over Webster's objection, allowed the State to question Detective Cupello about the statement made to him by Webster regarding Webster's prior theft of a car in Virginia. Prior to trial, there had been considerable discussion as to whether Webster's wife would assert her spousal privilege, and the State prepared its case accordingly. When she was called, she exercised her privilege. The trial court, again over Webster's objection, then allowed the State to question Detective Cupello about the statements made to him by Webster's wife.
¶ 8 A jury found Webster guilty of wrongful appropriation of a motor vehicle, which the trial court classified as a third degree felony under Utah Code Ann. §§ 76-6-404.5, -412 (Supp.1998). This appeal followed.
ISSUES AND STANDARDS OF REVIEW
¶ 9 Webster first contends that his wife's out-of-court statements to Detective Cupello should not have been admitted under either of the grounds relied on by the trial court, i.e., the statement against interest exception to the hearsay rule, Utah R. Evid. 804(b)(3), and the residual exception to the hearsay rule, Utah R. Evid. 804(b)(5). We first address whether Webster's wife's conversation with Detective Cupello qualifies under Rule 804(b)(3) as a statement against her interest. This determination involves applying the law expressed in the rule to the hearsay statement and the circumstances under which it was made. "In the abstract, the effect of a given set of facts is a question of law and, therefore, one on which an appellate court owes no deference to a trial court's determination." State v. Pena, 869 P.2d 932, 936 (Utah 1994). In applying some legal rules, however, we nonetheless allow trial courts a measure of discretion in applying given facts to the articulated legal standard. See id. at 937. We have found no Utah case
¶ 10 Our resolution of Webster's claim under Rule 804(b)(5) turns on our interpretation of that rule's notice requirement. "[I]nterpretation of a rule [of evidence] constitutes a conclusion of law, which we review for correctness[.]" Schreiter v. Wasatch Manor, Inc., 871 P.2d 570, 572 (Utah Ct.App.), cert. denied, 879 P.2d 266 (Utah 1994).
¶ 11 Webster next argues that evidence of his prior arrest for a similar offense should not have been admitted under Rule 404(b) of the Utah Rules of Evidence, governing the admissibility of evidence of prior "bad acts." Admission of evidence under Rule 404(b) is reviewed for abuse of discretion. See State v. Decorso, 1999 UT 57,-¶¶ 16-18, 993 P.2d 837, cert. denied, 528 U.S. 1164, 120 S.Ct. 1181, 145 L.Ed.2d 1088 (2000). However, "admission of prior crimes evidence itself must be scrupulously examined by trial judges in the proper exercise of that discretion." Id. at ¶ 18. In other words, failure of a trial court to undertake a scrupulous examination in connection with the admission of prior bad act evidence constitutes an abuse of discretion. See id.
¶ 12 Webster's final argument is that the trial court erred in classifying wrongful appropriation of a motor vehicle as a third degree felony under the statutory scheme then in effect. This argument raises an issue of statutory interpretation. Statutory interpretation presents a question of law, which we review for correctness, affording no particular deference to the trial court's conclusions. See State v. Martinez, 2000 UT App 320, ¶ 4, 14 P.3d 114.
¶ 13 Webster's first claim is that his wife's out-of-court statements to Detective Cupello should not have been admitted. After Detective Cupello arrested Webster, the detective called and spoke with Webster's wife on the telephone. When Webster's wife exercised her spousal privilege and declined to testify at trial, the court ruled that Detective Cupello could testify regarding the statements she made to him. Detective Cupello's testimony regarding his conversation with Webster's wife was as follows:
¶ 14 The trial court admitted the foregoing testimony under the hearsay exception for statements against interest, Utah R. Evid. 804(b)(3), and, alternatively, the residual exception, Utah R. Evid. 804(b)(5). We separately address the trial court's admission of this hearsay testimony under each exception.
A. Exception for Statements Against Interest
¶ 15 The Utah Rules of Evidence allow admission of hearsay if it is "[a] statement which . . . at the time of its making . . . so far tended to subject the declarant to . . . criminal liability . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." Utah R. Evid. 804(b)(3). Webster's wife's statements did not subject her to criminal liability. Despite her volunteering that she had driven a car Detective Cupello had just told her was stolen and her remarking, "We have a problem," her statements to Detective Cupello taken as a whole were not against her penal interest. She admitted no wrongdoing. Rather, she disclaimed any knowledge that the car had been stolen or wrongfully used, claimed that she thought the car had been returned two days earlier, and squarely placed the blame for any wrongdoing on her husband. The trial court exceeded the scope of its discretion in admitting Webster's wife's hearsay statements as being against her penal interest. By shifting any potential criminal responsibility from herself to her husband, her statements were fully consistent with her own penal interest.
B. Residual Exception
¶ 16 The trial court ruled alternatively that Webster's wife's hearsay statements were admissible under Utah R. Evid. 804(b)(5), one of the residual exceptions to the hearsay rule. Webster argues that, even assuming his wife's statements were otherwise admissible under Rule 804(b)(5), their admission was improper because the State did not comply with the notice requirement of Rule 804(b)(5). The notice requirement contained in the last sentence of the rule states:
Utah R. Evid. 804(b)(5).
1. Notice of the Statement and its Particulars
¶ 17 The State did not give actual pretrial notice of its intent to offer Webster's wife's statements through the testimony of Detective Cupello, but it argues that it met the rule's notice requirement because Webster knew before trial of the State's intent to call his wife as a witness. Notice of intent to call Webster's wife as a witness, however, is not equivalent to notice that the State intended to offer the statements she made to Detective Cupello, which were clearly hearsay. Had the State been able to successfully call Webster's wife as a witness, the State would
¶ 18 For us to hold that the State met the pretrial notice requirement in this case would be tantamount to saying that a party need not be given notice of the proponent's intent to offer specific hearsay evidence, but need only be on notice of the existence of the evidence the proponent may eventually attempt to offer, perhaps relying on the residual exception. The plain language of the rule requires that an opposing party have more than mere notice of the existence of particular evidence. It requires actual notice of a proponent's intent to offer specific hearsay evidence and the particulars of that evidence. The State here did not give Webster actual pretrial notice of its intent to offer his wife's hearsay statements made to Detective Cupello, nor did it provide notice of the particulars of those statements, especially as recollected by Detective Cupello.
2. Notice of Intent to Rely on the Residual Exception
¶ 19 Although the State did not give Webster formal pretrial notice of its intent to offer Webster's wife's hearsay statements, or notice of the particulars of those statements, Webster concedes that he anticipated the State's intent to offer his wife's statements to Detective Cupello in the event that she refused to testify. Rather than concede harmless error, however, Webster argues that the State failed to meet the notice requirement because it did not give him notice of its intent to rely on the residual exception in trying to get the hearsay in. It is true that the notice requirement could be read to require the proponent to give notice only of the particulars of the statement and of the intent to offer it, but not of the intent to rely on the residual exception. We observe, however, that "`[o]ne of the cardinal principles of statutory construction is that the courts will look to the reason, spirit, and sense of the legislation, as indicated by the entire context and subject matter of the statute dealing with the subject.'" Mountain States Tel. & Tel. Co. v. Payne, 782 P.2d 464, 466 (Utah 1989) (quoting Masich v. United States Smelting, Ref. & Mining Co., 113 Utah. 101, 108, 191 P.2d 612, 616 (1948)). The context of the residual exception is revealing.
¶ 20 The Utah Rules of Evidence contain twenty-nine exceptions to the hearsay rule. See Utah R. Evid. 803 & 804. The companion residual exceptions, Rule 803(24) and Rule 804(b)(5), are unique among those twenty-nine in requiring notice when a hearsay proponent intends to rely on one of them. It makes little sense, given the uniqueness of the residual exceptions' notice requirement, to assume that the drafters meant to require notice when a hearsay proponent intends to rely on a residual exception but not require concurrent notice that a proponent intends to rely on one of the residual exceptions.
¶ 21 Furthermore, the very purpose of the notice provision as acknowledged by the State in its brief—"to afford the adverse party an opportunity to attack the statement's trustworthiness," see Piva v. Xerox Corp., 654 F.2d 591, 596 (9th Cir.1981) — is frustrated when notice of intent to rely on a residual exception is not given. This case typifies the problem. Although Webster anticipated the State's intent to offer his wife's hearsay statements and was apparently prepared to contest their admission under Rule 804(b)(3), he may not have been prepared to contest, and the trial court was afforded little reasoned argument from either side regarding, the general trustworthiness of her hearsay statements. It is against the spirit and reason of our scheme of specific and narrow hearsay exceptions to require a party to both anticipate the few exceptions a particular hearsay statement may arguably fit under, and in each instance also be prepared to contest the applicability of the residual exception and the general trustworthiness of the hearsay statement. Unless given the required notice that a proponent intends to
¶ 22 We conclude that the notice provision of Rule 804(b)(5) requires notice of the proponent's intent to rely on that exception, and we find support for our conclusion in the case law of several federal jurisdictions.
¶ 23 Under the notice requirement of Rule 804(b)(5), the best practice is for a party to give formal notice of the hearsay evidence, the particulars of that evidence, the name and address of the declarant, and the party's intent to rely on the residual exception. Such notice should be given sufficiently in advance of trial for the adverse party to be able to prepare to meet the offered hearsay.
¶ 24 Although we have concluded that the trial court erred in admitting the statements Webster's wife made to Detective Cupello on notice grounds, and reverse on that basis, it is appropriate that we discuss another issue, because "where an appellate court finds that it is necessary to remand a case for further proceedings, it has the duty
¶ 25 Rule 804(b)(5) states, with our emphasis, that the following types of hearsay statements not falling within other exceptions may nonetheless be admitted:
¶ 26 The Utah Supreme Court has said that the residual exception "was intended for use in those rare cases where . . . [the statement's] admission is justified by the inherent reliability of the statement and the need for its admission." State v. Nelson, 777 P.2d 479, 482 (Utah 1989) (emphasis added).
¶ 27 The United States Court of Appeals for the Seventh Circuit has identified a number of factors that courts should consider in determining whether a hearsay statement has sufficient circumstantial guaranties of trustworthiness to be admitted under one of the residual exceptions. See United States v. Hall, 165 F.3d 1095, 1110-11 (7th Cir.), cert. denied, 527 U.S. 1029, 119 S.Ct. 2381, 144 L.Ed.2d 784 (1999); United States v. Bradley, 145 F.3d 889, 894-95 (7th Cir. 1998); United States v. Kladouris, 964 F.2d 658, 663 (7th Cir.1992).
Hall, 165 F.3d at 1110-11 (internal quotes,
¶ 28 In the instant case, the trial court's analysis of the trustworthiness of Webster's wife's hearsay statements was both very general and very brief:
¶ 29 The trial court's first "finding," to the effect that Webster's wife made her statements to Detective Cupello while in his presence, is clearly erroneous. Its second observation, that Webster's wife's statements to Detective Cupello were "mere statements of inconsequential events," is likewise erroneous. On the contrary, her statements proved to be the only evidence directly establishing that Webster drove the car home and left it in the parking lot of the apartment complex where he lived.
¶ 30 A proper inquiry into whether hearsay bears circumstantial guaranties of trustworthiness equivalent to the trustworthiness inherent in the established hearsay exceptions will include analysis of the types of factors outlined by the Seventh Circuit and here endorsed by us. Should the question again arise on remand, the trial court should undertake similarly focused analysis of the trustworthiness of the hearsay statements made by Webster's wife.
II. Other Bad Act Evidence
¶ 31 Webster next contends that testimony about his prior arrest in Virginia for stealing a car from a dealership lot
Utah R. Evid. 404(b).
State v. Decorso, 1999 UT 57, ¶ 20, 993 P.2d 837 (emphasis added), cert. denied, 528 U.S. 1164, 120 S.Ct. 1181, 145 L.Ed.2d 1088 (2000). "Under the first part of this analysis, the proponent must demonstrate that the evidence is actually being offered for a proper, noncharacter purpose, such as those specifically listed in the rule." Id. at ¶ 21. The State asserts that it offered the evidence of Webster's other bad act for two noncharacter purposes: (1) to prove identity and (2) to prove intent. We consider each rationale in turn.
¶ 32 The State contends that Webster's prior act of stealing a car from a dealership lot is similar enough to the alleged conduct in this case to admit evidence of Webster's prior act to prove Webster's identity as the perpetrator of the alleged crime here. While at first blush this contention seems persuasive, the analysis of State v. Decorso, 1999 UT 57, 993 P.2d 837, convinces us otherwise.
¶ 33 "Identity was the crux of [the Decorso] case." Id. at ¶ 27. Decorso was tried for the murder of a store clerk at a Payless Shoesource store in West Jordan, Utah. See id. at ¶¶ 2, 10. At trial, evidence of a separate burglary at a Payless Shoesource store in nearby Draper, Utah, where a clerk identified Decorso as the perpetrator of the burglary, was admitted under Utah Rule of Evidence 404(b). See id. at ¶¶ 7, 11-12. In affirming the trial court's determination that evidence of the Draper burglary was properly offered for the noncharacter purpose of establishing the identity of the killer at the West Jordan store, the Utah Supreme Court focused on the similarities between the West Jordan and Draper crimes. Id. at ¶ 27.
Id. Relying on these similarities and calling them "numerous" and "signature-like," the Supreme Court concluded that evidence of the Draper crime "was offered for a proper, noncharacter purpose—i.e., to establish the identity of the [West Jordan] killer." Id.
¶ 34 The First Circuit's approach to this issue in United States v. Trenkler, 61 F.3d 45
¶ 35 Given the sparse record in this case, we cannot say that Webster's act of stealing a car from a Virginia dealership bears either numerous or signature-like similarities to the crime charged in this case. The only similarities apparent on the record between the two incidents are that (1) a car was stolen (2) from a dealership lot. This pair of facts is not sufficiently "`unique as to constitute a signature.'" State v. Cox, 787 P.2d 4, 6 (Utah Ct.App.1990) (citation omitted). Thus, we conclude on these facts that the trial court exceeded its discretion in determining that the State offered the evidence of Webster's prior bad act in Virginia for the noncharacter purpose of proving identity. It was beyond the trial court's range of sound discretion to hold on these facts alone that a reasonable jury could find it more likely than not that the same person committed both crimes.
¶ 36 In addition to admitting the evidence of Webster's auto theft in Virginia for the purpose of proving identity, the trial court admitted the evidence for the alternative purpose of proving Webster's intent.
¶ 37 In essence, the trial court admitted the evidence on the theory that Webster's intent to steal a car from a dealership lot in Virginia at some time in the past is probative of the fact that Webster intended on July 10, 1998, to steal a car from a dealership lot in Utah. The State, however, failed to provide the trial court with sufficient details about the prior incident—perhaps most notably the date it occurred and whether it happened while Webster was an employee of the dealership—to justify a conclusion that Webster was acting on July 10, 1998, pursuant to a common scheme or plan of which his Virginia act was also a part.
III. Prejudicial Error
¶ 38 We have held that it was error both for the trial court to admit Webster's wife's hearsay statements to Detective Cupello and for the trial court to admit evidence of Webster's prior bad act in Virginia. "[A]n erroneous decision to admit or exclude evidence does not[, however,] result in reversible error unless the error is harmful." State v. Villarreal, 857 P.2d 949, 957 (Utah Ct.App. 1993), aff'd, 889 P.2d 419 (Utah 1995). See also Utah R. Evid. 103(a); Utah R. Crim. P. 30(a). "For an error to require reversal, the likelihood of a different outcome must be sufficiently high to undermine confidence in the verdict." State v. Knight, 734 P.2d 913, 920 (Utah 1987).
¶ 39 Erroneous admission of Webster's wife's hearsay statements and evidence of Webster's prior bad act in Virginia were not harmless. Without this evidence, the State's case amounted to the following: Webster had been working at Intermountain Volkswagen as a salesman; the Intermountain lot coordinator said that while Webster was an employee at Intermountain, he saw Webster driving off the lot in a car not allowed to be driven by salesmen; the lot coordinator did not see Webster return the car, and he did not see the car on the lot again before July 10; Webster quit his job at Intermountain after working there only two weeks; the car Webster had allegedly been seen driving was then found, on July 10, in the parking lot of the apartment complex where Webster and his wife lived; Webster denied to police that he had ever touched the car. This evidence, while largely circumstantial, would admittedly be sufficient to sustain Webster's conviction. Nonetheless, had the jury not been given the additional evidence indicating that Webster admitted to stealing a car previously and that Webster's wife, conceding they "ha[d] a problem," confirmed he had driven the car in question for a couple of days and left it in the parking lot where he lived, we are not confident that the jury would still have found him guilty beyond a reasonable doubt of wrongful appropriation of a motor vehicle. Indeed, the damning statements by Webster's wife and his apparent history of
IV. Degree of Offense
¶ 40 "Although resolution of the above issue[s] is dispositive of the present case," we again observe that "where an appellate court finds that it is necessary to remand a case for further proceedings, it has the duty of `pass[ing] on matters which may then become material.'" Bair v. Axiom Design, L.L.C., 2001 UT 20, ¶ 22, 20 P.3d 388 (quoting LeGrand Johnson Corp. v. Peterson, 18 Utah.2d 260, 263, 420 P.2d 615, 617 (1966)) (second alteration in original). Because on remand the proper classification of the crime of wrongful appropriation of a motor vehicle may again become material, we address Webster's last argument, i.e., that the trial court erred in classifying his alleged conduct—unauthorized control of a motor vehicle with intent to temporarily deprive the owner of possession—as a third degree felony under Utah Code Ann. §§ 76-6-404.5, -412 (Supp.1998).
¶ 41 More than one section of the Utah Code in effect in July of 1998 could arguably be read as defining the crime of, and setting the penalty for, unauthorized control of a motor vehicle. See Utah Code Ann. §§ 41-1a-1314, 76-6-404.5, 76-6-412 (Supp.1998). In determining which code section controls, "we follow the well-accepted rules of statutory construction that the provisions must be harmonized with the legislative intent and purpose and that the more specific provisions . . . take precedence over and control the more general provisions." Forbes v. St. Mark's Hosp., 754 P.2d 933, 935 (Utah 1988).
¶ 42 Wrongful appropriation is defined in general terms as follows:
Utah Code Ann. § 76-6-404.5(1) (Supp.1998). Section 76-6-404.5(3) goes on to explain the classification scheme for wrongful appropriation crimes generally: "Wrongful appropriation is punishable one degree lower than theft, as provided in Section 76-6-412[.]"
¶ 43 The Legislature has seen fit to specifically define wrongful appropriation of a motor vehicle:
Utah Code Ann. § 41-1a-1314 (Supp.1998). Because of its specificity, in cases of wrongful appropriation of a motor vehicle, section 41-1a-1314 clearly takes precedence over section 76-6-404.5.
¶ 44 Our conclusion is in accord with legislative intent. At the time of Webster's alleged offense, section 76-6-404.5 contained legislative acknowledgment that, in cases of unauthorized control of a motor vehicle, the
¶ 45 As late as 1996, section 41-1a-1311 defined and ascribed the penalty for shortterm wrongful appropriation of a motor vehicle, while section 41-1a-1314 defined and ascribed the penalty for long-term wrongful appropriation of a motor vehicle. See Utah Code Ann. §§ 41-1a-1311, -1314 (1993 & Supp. 1996). In 1997, the substance of sections 41-1a-1311 and -1314 were combined under section 41-1a-1314; however, the Legislature failed to repeal section 41-1a-1311 at that time. In 1998, presumably recognizing this oversight of the previous year, the Legislature repealed section 41-1a-1311. Simultaneously with the repeal of section 41-1a-1311, the Legislature enacted section 76-6-404.5, including subsection (3)(e)'s reference to section 41-1a-1311. We cannot assume that with section 76-6-404.5 the Legislature meant to enact a meaningless subsection (3)(e). See In re E.H., 880 P.2d 11, 13 (Utah Ct.App.) ("Utah courts have a duty to interpret statutes so that they will not be rendered meaningless."), cert. denied, 890 P.2d 1034 (Utah 1994). We thus view the Legislature's enactment of subsection (3)(e) as an intended reference to section 41-1a-1314, the section where the substance of section 41-1a-1311 had been moved the prior legislative session.
¶ 46 In any event, in the case of wrongful appropriation of a motor vehicle, the more specific provisions of section 41-1a-1314 prevail over the general provisions of section 76-6-404.5. Whether wrongful appropriation of a motor vehicle is properly classified, then, as a third degree felony or a class A misdemeanor depends on the length of time the perpetrator exercises unlawful control. On remand, the appropriate classification of the offense will be governed by section 41-1a-1314, and the factfinder should be instructed accordingly.
¶ 47 We conclude that it was prejudicial error to admit the hearsay statements made by Webster's wife and the evidence of Webster's prior bad act. We therefore remand for a new trial or such other proceedings as may now be appropriate.
¶ 48 WE CONCUR: JUDITH M. BILLINGS, Judge, and WILLIAM A. THORNE, JR., Judge.
State v. Lenaburg, 781 P.2d 432, 440 (Utah 1989) (Durham, J., dissenting) (quoting 4 J. Weinstein & M. Berger, Weinstein's Evidence, ¶ 803(24), at 804-173 (1988)). However, even if Rule 803(24)'s trustworthiness requirement is more stringent, the types of factors to consider in making a trustworthiness determination do not change between Rule 803(24) and Rule 804(b)(5).
In State v. Featherson, the defendant was charged with aggravated sexual assault. See 781 P.2d 424, 425 (Utah 1989). Evidence of several prior bad acts by the defendant were admitted at trial, including a rape conviction eight years earlier, two incidents of assault that did not result in convictions nine and ten years earlier, and two sexual assault convictions four years earlier. See id. at 425-426. In holding that evidence of each of these prior bad acts was inadmissible, despite the multitude of seemingly similar bad acts, the Utah Supreme Court explained:
Id. at 429-30 (emphasis in original; citation omitted).
The fact that the record indicates that Webster's bad act in Virginia occurred seven years before the alleged crime here strongly suggests that the two thefts were too disparate in time to be part of a single scheme to steal cars.