State v. Richins , 2021 UT 50 ( 2021 )

2021 UT 50IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Respondent,
v.
RONALD JAY RICHINS,
Petitioner.
No. 20200228
Heard April 14, 2021
Filed August 19, 2021
On Certiorari to the Utah Court of Appeals
Third District, Salt Lake
The Honorable Katie Bernards-Goodman
No. 171403503
Attorneys:
Sean D. Reyes, Att’y Gen., Nathan H. Jack, Asst. Solic. Gen.,
Thaddeus May, Salt Lake City, for respondent
Sarah J. Carlquist, Salt Lake City, for petitioner
JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PETERSEN joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 A teenager being driven to school reported seeing Ronald Jay
Richins standing in his yard and moving his hands in front of his
pants in a way that suggested he was masturbating. The State
charged Richins with lewdness.
¶2 The State sought to introduce evidence of four prior
occasions when Richins had been accused of exposing and/or
stimulating himself in public. Over Richins’s objection, the district
court admitted the evidence. The district court reasoned that the
doctrine of chances permitted the State to introduce evidence of
Richins’s prior acts to establish the unlikelihood that his teenaged
STATE v. RICHINS
Opinion of the Court
neighbor was mistaken about what she had seen. The jury convicted
Richins.
¶3 Richins sought review in the court of appeals. That court
affirmed Richins’s conviction but expressed concerns about the way
this court has articulated and applied the doctrine of chances. We
agree with a majority of the court of appeals that the doctrine of
chances presents a set of challenges for the courts tasked with
applying it. This causes us to conclude that if the doctrine of chances
is to remain part of our jurisprudence, it needs to be more carefully
explained and more precisely employed. But we disagree with the
court of appeals that the doctrine was correctly applied to admit the
evidence in this case. We reverse the court of appeals, vacate
Richins’s conviction, and remand for a new trial.
BACKGROUND
¶4 Richins’s next-door-neighbor (Neighbor) was driving her
fifteen-year-old daughter (Daughter) to school. Daughter saw
Richins standing in his yard. When a detective interviewed Richins
three months later, he said that he was out for a smoke. Neighbor
and Daughter told the detective a different story.1
¶5 Daughter said she saw Richins with “his hands down near
his genital area.” She “could tell that there was flesh there . . . and he
was obviously holding something.” She said she saw a “back and
forward motion” and “[i]t kind of looked like he might have been
masturbating.”
¶6 But Daughter also said that she “didn’t exactly see what
[Richins] had in his hands.” She conceded that “it’s possible that I
saw his hands in his pocket.” Daughter also said she wasn’t one
hundred percent sure what Richins was doing.
¶7 As they drove past, Daughter had told Neighbor not to look
at Richins. Neighbor looked. Neighbor said that Richins “appeared
to be standing with his hands just kind of clasped down in front of
him.” There was nothing else Neighbor could observe from her
vantage point. She acknowledged that Richins “may have just had
his hands clasped in front of him. That’s all I saw.”
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1Each of the facts we include in the background section came into
evidence through the testimony of one or more of Neighbor,
Daughter, and the detective who investigated this case.
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¶8 Daughter may have had reasons to perceive that Richins was
engaged in something untoward. Daughter thought Richins was
“creepy” and said that he made her feel “uncomfortable.” Neighbor
also told police that Richins was a “creepy guy.” Neighbor, who
knew that Richins was a registered sex offender, had told Daughter
to “watch out” for Richins. Neighbor told Daughter “not to go near
[Richins] or his house because all our neighbors warned us about
him.” Neighbor had given Daughter a “parental warning” consisting
of: “Don’t go into his yard. Don’t talk to him. Just stay away from”
Richins.
¶9 When a detective spoke with Richins about Daughter’s
report, the detective told Richins that two people were “certain” he
had exposed himself. Richins maintained his innocence.
¶10 The State charged Richins with lewdness by a sex offender.
Before trial, Richins’s counsel sought to have the State disclose any
evidence it would seek to admit under rule 404(b) of the Utah Rules
of Evidence.2 The State responded that it intended to introduce four
separate incidents where Richins had exposed himself to women or
was alleged to have done so (the other-acts evidence).
¶11 In the first incident, a woman noticed Richins looking at
her as she entered a shopping center. When she exited, she saw that
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2 Utah Rule of Evidence 404(b) prohibits the use of crimes,
wrongs, or other acts as character evidence. Character evidence is
evidence of a person’s good or bad character—whether or not they
are a “generally good-hearted person with positive qualities.” State
v. Gallegos, 2020 UT App 162, ¶ 36, 479 P.3d 631. Character evidence
also includes evidence of “specific traits or propensities [a] person
might have, some of which might be negative even if the person
could be considered generally a good person.” Id. Utah Rule of
Evidence 404(b)(1) 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.” Utah Rule of Evidence 404(b)(2) provides that this
“evidence may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” “This list is not exhaustive,
however, and evidence demonstrating other purposes is not
precluded so long as the evidence is offered for a legitimate purpose
other than to show the defendant’s propensity to commit the crime
charged.” State v. Allen, 2005 UT 11, ¶ 17, 108 P.3d 730.
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STATE v. RICHINS
Opinion of the Court
Richins had moved his car near hers. As she returned to her car, she
saw Richins’s discernibly turgid member. She also saw that he was
masturbating. Richins denied the allegations but was cited for
lewdness. The ultimate resolution of the case is unclear from the
record.
¶12 In the second incident, two women in a park reported
seeing Richins expose his penis, make eye contact, and begin to
masturbate. Richins admitted to masturbating in front of the women
and was arrested. The final resolution of the case is unclear from the
record.
¶13 In the third incident, Richins was seen masturbating while
driving next to a bus of junior high school girls. Richins mouthed “I
love you” to some of them. Richins pled guilty to two counts of
lewdness.
¶14 In the fourth incident, a woman waiting at a bus stop saw
Richins pull down his pants, expose his penis, and begin to touch
himself. A jury convicted Richins of lewdness.
¶15 The State argued that the other-acts evidence was
admissible for two different reasons. The State argued it could be
admitted to rebut the assertion that Daughter was “mistaken in what
she witnessed.” The State also argued the evidence should be
admitted under the doctrine of chances.3
¶16 Richins countered that no proper noncharacter purpose
justified the admission of the other-acts evidence. Richins contended
that telling the jury about the four occasions on which he had been
accused of public indecency would invite the jury to indulge the
“improper inference” that evidence rule 404(b) prohibits. That is,
that the evidence would suggest to the jury that he had been
pleasuring himself when Neighbor and Daughter drove by because
he is the type of guy who pleasures himself publicly.
¶17 Richins also argued that the State had not identified a
proper noncharacter purpose for the admission of the evidence.
Richins emphasized that he had not raised a defense of mistake,
accident, lack of opportunity, or incorrect identification. Therefore,
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3 The doctrine of chances is “a theory of logical relevance that
‘rests on the objective improbability of the same rare misfortune
befalling one individual over and over.’” State v. Verde, 2012 UT 60,
¶ 47, 296 P.3d 673, abrogated on other grounds by State v. Thornton, 2017
UT 9, 391 P.3d 1016.
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Richins continued, it would be inappropriate to allow the State to
introduce the evidence to rebut defenses he had no intention of
raising.
¶18 Richins further contended that the evidence should not be
admitted under the doctrine of chances. As Richins highlighted, the
doctrine of chances sets forth “four foundational requirements” that
must be satisfied before prior-acts evidence can be admitted. See
State v. Lopez, 2018 UT 5, ¶ 54, 417 P.3d 116. These factors, taken from
State v. Verde, 2012 UT 60, ¶ 47, 296 P.3d 673, abrogated on other
grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016, are:
“materiality, similarity, independence, and frequency.” Id. Richins
argued that the other-acts evidence was neither material, similar, nor
frequent enough to be admitted under the doctrine.
¶19 Richins argued that the “offered evidence is not material
because it does not address a defense raised by the Defendant.”
Richins claimed that there was “no contested issue of identity or
opportunity, nor is there a contested claim of mistake or accident.”
Richins maintained that “the State is incorrect in asserting that a
defense claim that the accuser is mistaken” qualifies as an exception
to the rule against character evidence from evidence rule 404(b)
because “404(b) refers to a claim of mistake or accident by the
defendant; not by a witness or accuser.”
¶20 Richins further argued “there are material and contextual
differences between the various incidents sufficient that they fail to
clear the bar for similarity” and frequency. Richins pointed to the
factual dissimilarities between the charged conduct and his other
acts. And he focused his argument on the time that had passed since
the other acts had occurred. He contended that the other acts had
taken place between three and a half and nine years before.
According to Richins, the gap in time meant that the acts had not
occurred with sufficient frequency to have doctrine-of-chances
significance.
¶21 The district court rejected all of Richins’s arguments and
found the other-acts evidence admissible under rule 404(b). The
district court concluded that the evidence was admissible for three
different non-character purposes: absence of mistake, rebuttal of a
claim of fabrication, and the doctrine of chances.
¶22 The court briefly addressed each of the Verde factors:
The court finds that the proposed 404(b) evidence is
material inasmuch as it address[es] issues that are
clearly in dispute, namely what [Daughter] saw.
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Opinion of the Court
Secondly the court finds that the incidents are similar,
inasmuch as they all involve the exact same conduct,
that of the defendant exposing himself to women in
public. Third the court notes all of the prior incidents
involve[] women who have no[] connection to one
another. Finally the court find[s] that the State has met
the frequency requirement, inasmuch as four
allegations in seven years is clearly more accusations
that a “typical” person would endure.
¶23 Richins also argued that, even if the proffered other-acts
evidence was admissible under rule 404(b), it ought to be excluded
under rule 403.4 By Richins’s account, the “jury’s duty in this case is
simply to determine whether Mr. Richins is guilty beyond a
reasonable doubt of the charge of lewdness in this case only.”
Richins therefore posited that the “jury should not make such a
determination by means of considering both proven and
unsubstantiated allegations that were made at least three and nine
years prior to the one at issue in this case.”
¶24 The district court concluded that rule 403 did not bar the
admission of the other-acts evidence. The court found that the
“proposed evidence is clearly prejudicial but it would not result in
‘unfair prejudice’ that substantially outweighs its probative value.
The court finds that because all of the prior victims are discussing
lewdness allegation[s] and not a more serious sexual offense the
prejudicial effect of the evidence will be muted.”
¶25 In the ruling’s wake, Richins’s trial counsel and the State
stipulated how the prior incidents would be presented to the jury.
The stipulation read, “On four separate occasions from 2007 to 2013
four different women indicated that Mr. Richins exposed his penis to
them and touched his penis in their presence. None of these women
knew Mr. Richins, or each other, or welcomed his conduct. Two of
these incidents resulted in convictions.”
¶26 Armed with a ruling allowing him to introduce Richins’s
checkered history, the prosecutor began his opening statement: “I
want to talk a little bit about coincidences. This case has some
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4Rule 403 states that a “court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” UTAH R. EVID. 403.
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interesting coincidences.” The prosecutor noted that he shared the
same last name as the alleged victim in the case, even though they
weren’t related. He then noted that the alleged incident happened on
his birthday. “What do those two facts mean?” he asked,
rhetorically. “I would submit that it means nothing. Absolutely
nothing. Those are just coincidences. Random facts. Random
occurrences. They’re not data from which you could learn anything.”
¶27 “But,” he continued, “you’ll be hearing about some data in
this trial, some probabilities and some things like that, that actually
will be firm and strong and sound enough that you can make
conclusions based on that data.”
¶28 The prosecutor described what Daughter would say she
saw Richins do. The prosecutor then told the jury:
I want to talk a little bit more about coincidences and
conclusions. That is not the only evidence you’ll
receive in this case. You will hear that from the years of
2007 to 2013, you’ll be instructed that four separate
women on four separate occasions saw the defendant,
Ronald Richins, expose himself in a public place. None
of these women knew one another. None of these
women knew Mr. Richins.
He began to say, “This evidence is powerful because it goes far
beyond . . . .” before being interrupted by an objection. After the
objection, he concluded, “Because of this evidence,” apparently
referring to the other-acts evidence, “and the evidence of [Daughter],
we’ll be asking you to return a guilty verdict.”
¶29 The prosecutor returned to coincidences in his closing
argument. He recapped the testimony that Daughter had given and
then said:
You’ve heard from four separate women that have
described essentially the same conduct about Mr.
Richins. They said they saw his penis, and they saw his
hand touching his penis. They saw a very similar thing
to what [Daughter] described.
So ask yourselves, what are the odds that [Daughter’s]
description is accurate? It’s not mistaken. It’s not the
result of some fantasy or oppressed thought. That is
why that evidence is so important.
He said, “So how is it when you apply that to these four separate
allegations, right, and then [Daughter’s] description of the exact
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Opinion of the Court
same conduct essentially, what are the odds of such a misfortune
befalling Mr. Richins on five separate occasions?” He continued:
[B]ased on the evidence presented by [Daughter] and
[Neighbor], and based on the stipulation of fact for
which you can consider specifically, is [Daughter]
mistaken? Is she fabricating this claim? And you can
consider the notion that what is the objective
improbability of somebody having this bad of luck. It’s
no coincidence . . . it is a clear, clear, clear conclusion.
¶30 The district court instructed the jury:
You have heard evidence that four women have made
similar allegations to those presented in this trial
against Ronald Richins before the act(s) charged in this
case. You may consider this evidence, if at all, for the
following limited purposes:
1) to rebut a claim that a witness was mistaken
in what she saw on the date in question;
2) to rebut the idea that a witness’s testimony
was the result of fabrication.
The evidence was not admitted to prove a character
trait of the defendant or to show that he acted in a
manner consistent with such a trait. Keep in mind that
the defendant is on trial for the crime charged in this
case, for that crime only. You may not convict a person
simply because you believe he may have committed
some other acts at another time.
¶31 The jury deliberated. At some point during the
deliberations, one of the jurors sent the court a note asking: “If the
jury can’t agree on guilty or not guilty, what do we do?”
Deliberations continued. The jury convicted Richins of lewdness by a
sex offender. Richins appealed.
¶32 The court of appeals affirmed. See State v. Richins, 2020 UT
App 27, ¶ 33, 460 P.3d 593. On the rule 404(b) issue, Richins argued
that the district court erred when it admitted the other-acts evidence
to rebut a claim of fabrication. Richins asserted that he never claimed
that Daughter “fabricated or intentionally lied about the claim she
raised against him.” Id. ¶ 21. He argued in his briefing that “trial
counsel’s primary strategy was to show that Daughter herself had
doubts about what she may have seen—a strategy different from
asserting Daughter had fabricated anything.”
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¶33 The court of appeals noted that Richins had argued to the
jury that Victim was “biased” or “prejudiced” or “preconditioned”
to think he committed the offense. Richins, 2020 UT App 27, ¶ 14.
The court of appeals held that “[w]hether [Daughter] intentionally
lied about seeing Richins expose himself or whether she
subconsciously jumped to the conclusion that he exposed himself
does not change Richins’s basic assertion that he was falsely accused.”
Id. ¶ 21. And, therefore, “the district court did not err in permitting
the State to offer evidence of Richins’s prior acts of exposing himself
to other women to rebut Richins’s defense that [Daughter] falsely
accused him of exposing himself to her.” Id. ¶ 22.
¶34 Richins also argued that the district court misapplied the
doctrine of chances. Id. ¶ 23. He claimed that the district court had
erred when it concluded that the State had established that the other
acts evidence had satisfied three of the doctrine of chance’s
foundational requirements: materiality, similarity, and frequency. Id.
The court of appeals rejected that argument and held that the district
court had correctly concluded that the doctrine’s foundational
requirements had been satisfied. Id. ¶ 28.
¶35 Richins last argued that the district court erred in not
excluding the other-acts evidence under rule 403. Id. ¶ 29. The court
of appeals affirmed the district court’s rule 403 determination.
Although the court of appeals noted that “a more thorough
consideration of rule 403 [by the district court] would have aided our
review on appeal,” the court agreed with “the district court’s
ultimate determination that the potential for prejudice or confusion
from admitting the evidence of Richins’s other lewd behavior did
not substantially outweigh the probative value of that evidence.” Id.
¶ 31.
¶36 Two judges on the panel included a footnote in the opinion
setting forth their concerns about the way we have described and
applied the doctrine of chances. See id. ¶ 20 n.2; see also id. ¶ 34
(Orme, J., concurring with exception to footnote 2). Those judges
opined that they “question[ed] the wisdom of applying the doctrine
of chances to rebut charges of fabrication or mistake on the part of an
accusatory witness.” Id. ¶ 20 n.2.
¶37 Richins petitioned for certiorari review. We granted
certiorari on two questions:
1. Whether the Court of Appeals erred in concluding
that evidence of other acts was admitted for a
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Opinion of the Court
permissible noncharacter purpose under the doctrine
of chances.
2. Whether the Court of Appeals erred in affirming the
district court’s conclusion that the probative value of
evidence of other acts was not substantially
outweighed by any unfair prejudice.
¶38 Richins has not asked us to overturn Verde nor to abandon
the doctrine of chances altogether, so we do not consider doing
either in this opinion. Instead, Richins argues that the court of
appeals erred in its analysis of the materiality and frequency prongs
of the doctrine of chances. And he argues that the court of appeals
erred because the prejudice flowing from the other-acts evidence the
district court admitted substantially outweighed its probative value.
For these reasons, he asks us to reverse the court of appeals and
grant him a new trial.
STANDARD OF REVIEW
¶39 “On certiorari, we review the decision of the court of
appeals for correctness, giving no deference to its conclusions of
law.” State v. Sanchez, 2018 UT 31, ¶ 10, 422 P.3d 866 (citation
omitted). “[T]he correctness of the court of appeals’ decision turns, in
part, on whether it accurately reviewed the [district] court’s decision
under the appropriate standard of review.” State v. Lowther, 2017 UT
34, ¶ 17, 398 P.3d 1032 (second alteration in original) (citation
omitted). “The appropriate standard of review for a district court’s
decision to admit or exclude evidence is ‘abuse of discretion.’ A
district court abuses its discretion when it admits or excludes
‘evidence under the wrong legal standard.’” Id. (citations omitted).
ANALYSIS
I. THE COURT OF APPEALS ERRED IN ITS
APPLICATION OF RULE 404(b)
¶40 Richins argues that the court of appeals erred when it
upheld the district court’s decision to admit the other-acts evidence
under Utah Rule of Evidence 404(b). Richins first argues that the
court of appeals and district court improperly concluded that
rebutting a claim of fabrication constitutes a proper noncharacter
purpose. Richins next argues that the court of appeals misinterpreted
State v. Verde, 2012 UT 60, ¶ 47, 296 P.3d 673, abrogated on other
grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016, to conclude
that the evidence could be admitted under the doctrine of chances.
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A. The Court of Appeals Correctly Concluded That Rebutting
a Claim of Fabrication is a Proper Noncharacter Purpose
¶41 Richins first argues that the court of appeals erred when it
held that rebutting a claim of fabrication was a permissible
noncharacter purpose for admitting the other-acts evidence. See State
v. Richins, 2020 UT App 27, ¶¶ 20, 22, 460 P.3d 593.
¶42 Utah Rule of Evidence 404(b)(1) excludes “[e]vidence of a
crime, wrong, or other act . . . to prove a person’s character in order
to show that on a particular occasion the person acted in conformity
with the character.” But Rule 404(b)(2) permits the use of prior-acts
evidence “for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” We have held that this list is not exhaustive such
that “evidence demonstrating other purposes is not precluded so
long as the evidence is offered for a legitimate purpose other than to
show the defendant’s propensity to commit the crime charged.” State
v. Allen, 2005 UT 11, ¶ 17, 108 P.3d 730.
¶43 One way to think of rule 404(b)(2)’s list is as circumstances
where we have concluded that evidence of past acts might be
presented to the jury in a way that will direct the jury away from the
improper propensity inference that rule 404(b) is designed to protect
against. That is, we recognize the potential for the jury to draw the
inference from prior-acts evidence that because the defendant did
this kind of thing before, he did it on the charged occasion. And rule
404(b)(1) maintains that such an inference would be improper. But
we nevertheless believe that when prior-acts evidence is introduced
for another purpose under rule 404(b)(2), we can trust the jury to
maintain its focus on the permissible, non-propensity-based
inference.
¶44 In Verde, we effectively added to rule 404(b)’s list of
permissible purposes. There, we adopted the “doctrine of chances”
which “defines circumstances where prior bad acts can properly be
used to rebut a charge of fabrication.” 2012 UT 60, ¶¶ 47, 56. We
described the doctrine as “a theory of logical relevance that ‘rests on
the objective improbability of the same rare misfortune befalling one
individual over and over.’” Id. ¶ 47 (citation omitted).
¶45 In Verde, we reasoned that under the doctrine of chances,
prior-acts evidence “tends to prove a relevant fact without relying on
inferences from the defendant’s character.” Id. ¶ 51. That is, when
presented with evidence to rebut a claim of fabrication under the
doctrine of chances, a jury can, at least in theory, examine the
evidence to conclude that it is unlikely, as a matter of probability,
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Opinion of the Court
that an accuser is fabricating the accusation because of the
unlikelihood of an innocent person being accused of the same thing
over and over. And it can, again at least in theory, draw that
inference without resorting to the inference that rule 404(b)
prohibits: that the defendant committed the charged offense because
he has a propensity to commit this type of crime. We were willing,
therefore, to open the door to prior-acts evidence to disprove a claim
of fabrication. Id. ¶ 20. But we did so fully aware of the realities of
opening that door. We acknowledged “there is a risk of an undue
inference that the defendant committed each act because of the
defendant’s immoral character.” Id. ¶ 51.
¶46 Richins picks up on our caution about the risk of undue
inferences. Richins argues that when evidence is introduced to rebut
a claim of fabrication under the doctrine of chances, we ask too much
of a trier of fact when we ask it to separate the permissible
probability-based inference from the impermissible propensity-
based inference.
¶47 Richins explains that, in other contexts, evidence might be
admitted with a much-reduced risk that the jury will draw the
propensity-based inference. He offers an example. A defendant
commits an armed robbery and leaves his gun with a unique serial
number at the scene of the crime. The prosecutor obtains evidence
that the defendant stole the gun bearing that serial number before
the robbery. It is possible that the jury could perceive the evidence
that the defendant stole this specific gun as character evidence—after
all, it suggests he has a general propensity to steal. This would be an
improper inference that we would need to guard against.
¶48 But Richins argues that evidence of the gun store robbery
could nevertheless be properly admitted in this hypothetical trial
because the evidence’s “predominant inference is a non-propensity
inference.” Richins implies that the jurors are more likely to draw the
proper inference that, because we know the defendant stole the gun
with this serial number, and that exact gun was left at the crime
scene, the defendant was therefore at the crime scene. Under these
kinds of circumstances, he argues that “a bright-line often separates”
proper and improper inferences. And we can use that bright line to
help the jury navigate the boundary between the competing
inferences.
¶49 Richins argues that is not the case when evidence is
admitted under the doctrine of chances to rebut a claim of
fabrication. Richins claims that when the statements of former
accusers are admitted to rebut a claim of fabrication, this evidence
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does little more than invite the jury to indulge the improper
inference that rule 404(b) is aimed at preventing. That is, when the
proffered reason for admitting prior acts is to prove that the accuser
is not fabricating the accusation, it is far more likely that the jury will
conclude that because the defendant engaged in this activity before,
he engaged in it in this instance because he is the sort of person who
commits this sort of crime.
¶50 Richins acknowledges that Verde permitted the State to
invoke the doctrine of chances to rebut a claim of fabrication, but he
claims that there is some wiggle room in our precedent that would
allow us to disavow that use. He points out that Verde held that
evidence rebutting a claim of fabrication is only “potentially
admissible.” Verde, 2012 UT 60, ¶ 51. Verde also cautioned that a
“charge of fabrication is insufficient by itself to open the door to
evidence of any and all prior bad acts.” Id. ¶ 55.
¶51 Richins contends that the court of appeals has disregarded
these caveats and adopted a “categorical rule” that rebutting a claim
of fabrication is a proper noncharacter purpose. He argues that
“[t]he court of appeals erred because it allowed a charge of
fabrication, riding the coattails of the doctrine of chances, to fling the
door on the propensity ban wide open without considering the
evidence’s true and predominant propensity purpose.”
¶52 Moving to the facts of his case, Richins argues that “the
only inference the other-acts evidence supported was a strict-
propensity inference, and as such, the court of appeals erred when it
affirmed the evidence’s admission.” He posits that “just because the
evidence here was dressed-up under the doctrine of chances does
not mean it had a proper non-propensity purpose.” And he asks us
to “hold that [the doctrine of chances] cannot be used to rebut a
claim of fabrication.”
¶53 Richins raises valid concerns about the application of the
doctrine of chances to show that a witness is not fabricating her
allegation. We especially take Richins’s point that when the State
presents prior-acts evidence and uses the doctrine of chances as the
analytical model, the gap between the proper and improper
inferences can be thin to the point of being theoretical. And we agree
with Richins that we are asking a jury to deploy a substantial degree
of mental discipline when we ask it to consider a defendant’s past
acts to assess whether his accuser is making up the allegations, but to
simultaneously not consider whether the fact that the defendant has
committed the prior acts means he has a propensity to commit those
crimes.
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¶54 Whatever the merits of Richins’s arguments, a major
roadblock exists to our casting Verde aside. Richins has not expressly
asked us to overturn it and therefore has not attempted to meet the
burden a party faces when asking us to reverse our precedent.
Overturning precedent is not something that we do easily. See
Eldridge v. Johndrow, 2015 UT 21, ¶ 21, 345 P.3d 553. Without briefing
aimed at that burden, we keep Verde’s core holding in place and
leave open the possibility that, in an appropriate case, a party could
employ the doctrine of chances to rebut a claim of fabrication. See
Verde, 2012 UT 60, ¶¶ 47, 56.
¶55 But Richins’s argument, together with the criticism that the
court of appeals (in this case and others) has leveled at the doctrine
of chances, have convinced us that if the doctrine is to remain part of
our jurisprudence, it needs to be employed in a more disciplined
fashion and district courts need to be more transparent in explaining
their reasoning. We explain the increased rigor we direct the courts
to apply as we address Richins’s other arguments.5
_____________________________________________________________
5 When we remand a case for further proceedings, we allow
ourselves the discretion to address issues that might arise on
remand. State v. Ogden, 2018 UT 8, ¶ 25, 416 P.3d 1132. Absence of
mistake was one of the three “proper” non-character purposes that
the district court held would justify the admission of the other-acts
evidence. The district court concluded that the evidence could be
admitted because the prior acts were relevant to show that Daughter
was not mistaken about what she saw. Richins objected that 404(b)’s
reference to absence of mistake only encompasses situations where a
defendant asserts a defense of his or her own mistake. In other
words, Richins claimed that absence of mistake applies only where a
defendant claims that, in a crime with a mens rea element, she did
not act with the requisite mental state because she was mistaken. See
supra ¶ 17.
The court of appeals appears to have not addressed Richins’s
argument head-on. But at times it referred to “mistake and
fabrication defenses” or “mistake or fabrication” in the same breath.
Richins, 2020 UT App 27, ¶ 31. The State does the same in its briefing
to us, referring to “Richins’s false-accusation or mistake defenses.”
To the extent the court of appeals equated fabrication with absence
of mistake, we note that those two justifications implicate different
doctrine of chances concerns and should be analyzed separately.
Also, to the extent absence of mistake was an independent ground to
(continued . . .)
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B. The Court of Appeals Erred in Upholding the District Court’s
Admission of the Other-Acts Evidence
¶56 Richins next argues that even if prior-acts evidence can be
admitted under the doctrine of chances to rebut a charge of
fabrication, the court of appeals improperly applied the doctrine.
Richins correctly notes that we have permitted use of the doctrine of
chances where the evidence’s proponent can satisfy four threshold
showings: materiality, similarity, independence, and frequency.
Verde, 2012 UT 60, ¶¶ 57–61. Richins argues that the court of appeals
erred because the district court did not have an adequate basis to
conclude that the other-acts evidence was material to an issue in
“bona fide dispute.” Richins also argues that the district court lacked
a basis to conclude that the prior acts had occurred with sufficient
frequency. We agree with Richins that the district court’s analysis
did not allow the court of appeals to conclude that the evidence was
admitted properly under the doctrine of chances.
1. The Court of Appeals Did Not Err When It Concluded That the
Other-Acts Evidence Was Material to a Disputed Issue
¶57 Richins first argues that the materiality requirement of the
doctrine of chances was not satisfied. To meet the materiality
element of admissibility under the doctrine of chances, “[t]he issue
for which the uncharged misconduct evidence is offered ‘must be in
bona fide dispute.’” Verde, 2012 UT 60, ¶ 57 (citation omitted).
admit the evidence, the State has not asked us to affirm the court of
appeals on this basis.
Even if the State had, we could not say that the basis was
apparent on the record before us. The State has not pointed us to any
case in which a court has admitted rule 404(b) evidence to show that
the witness was not mistaken. We also note that absence of mistake
under federal rule 404(b) (which is identical to our rule 404(b) in this
respect) is a “subsidiary of the intent exception” and that “evidence
can fall under the exception for absence of mistake or inadvertence
when it shows defendant was aware of the nature of an act at an
earlier point, making it unlikely he would not have known at the
time of the charged crime.” 2 CRIM. PRAC. MANUAL § 60:7, Westlaw
(updated June 2021). We offer no opinion on whether demonstrating
that a witness is not mistaken would be a proper non-character
purpose, and leave the question for a case in which the issue is
briefed.
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STATE v. RICHINS
Opinion of the Court
¶58 We impose this requirement so we can determine “at the
threshold whether the evidence is presented for a proper purpose, or
only for the purpose of suggesting an improper inference of action in
conformity with alleged bad character.” Id. ¶ 24. Stated differently,
we understand that evidence of a defendant’s prior bad acts can be
powerful evidence that carries with it the potential for the jury to
draw both proper and improper inferences.6 To help ensure that the
doctrine of chances does not become an end run around rule 404(b),
we ask the district court to analyze whether the prior act evidence is
actually material to a disputed issue.7
_____________________________________________________________
6 To be clear, certain inferences are improper because Utah Rule
of Evidence 404(b)(1) prohibits the use of “[e]vidence of a crime,
wrong, or other act . . . to prove a person’s character in order to show
that on a particular occasion the person acted in conformity with the
character.” But, for some categories of evidence, such as a criminal
case where the defendant is accused of child molestation, we
expressly permit the jury to consider evidence that the defendant has
molested children before to prove a propensity to commit that
particular crime. See UTAH R. EVID. 404(c). These are questions of
policy that reflect our desire to have a system that is fair to
defendants, victims, and the public. This case highlights the tension
inherent in attempting to simultaneously maintain a bar on character
evidence and a doctrine that invites the jury to examine past acts
through a probability-focused lens.
7 For some time, we attempted to impose rigor on the district
court’s consideration of prior-acts evidence by instructing those
courts to “scrupulously examine[]” that evidence before its
admission. See State v. Lucero, 2014 UT 15, ¶ 36, 328 P.3d 841 (quoting
Verde, 2012 UT 60, ¶ 13), abrogated by State v. Thornton, 2017 UT 9, 391
P.3d 1016. But in State v. Thornton, we jettisoned that standard
because we concluded it had become “more confusing than helpful.”
2017 UT 9, ¶ 47. We reiterated that the tests for admissibility are
those of the Utah Rules of Evidence. See id. ¶ 54.
When we disavowed the “scrupulously examine” standard, we
reinforced the need for a “careful trial judge” to “march[] through
the standards set forth in rules 404(b), 402, and 403.” Id. And we
noted that a judge who presents her “analysis on the record” “will be
better-positioned” to have her “decision on admissibility of prior
misconduct evidence affirmed on appeal.” Id. We highlight,
underscore, bold, italicize, and place in all caps that advice.
(continued . . .)
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¶59 Richins argues that the court of appeals incorrectly
identified the bona fide dispute in this case. The court of appeals
concluded that the disputed issue to which the evidence spoke was
“whether [Daughter] falsely accused Richins.” Richins, 2020 UT App
27, ¶ 24. But that is not what the district court based its materiality
ruling on.
¶60 The district court’s materiality analysis consisted of a single
sentence: “The court finds that the proposed 404(b) evidence is
material inasmuch as it address[es] issues that are clearly in dispute,
namely what [Daughter] saw.” Richins argues that when the district
court defines materiality at this level of generality, it revives the
“not-guilty rule” that we rejected in Verde. See 2012 UT 60, ¶¶ 21–22.
The “not-guilty rule” provided that a not-guilty plea put every
element of a crime at issue. Id. In the 404(b) context, this allowed
prosecutors to argue that prior-acts evidence could be admitted to
show intent, even if the defendant did not focus his defense on the
intent element of the crime.
¶61 In Verde, we recognized that “the technical relevance of
evidence of a defendant’s intent is not enough to justify the
admissibility of evidence of prior bad acts purportedly aimed at
establishing intent under rule 404(b).” Id. ¶ 22. We cautioned that
“[f]idelity to the integrity of the rule requires a careful evaluation of
the true—and predominant—purpose of any evidence proffered
under rule 404(b).” Id. We further highlighted the need for focused
attention on the purpose for which the evidence would be admitted.
Id. We recognized that focus could help a court discern whether the
true purpose of the evidence would be one rule 404(b) renders
improper. Id. We also recognized that it would assist a court to
evaluate whether any permissible purpose is outweighed by the
evidence’s ability to give rise to an improper inference and whether
the evidence’s potential to prejudice or confuse the jury outweighs
its value. Id.
¶62 Those concerns become even more acute when the State
intends to use the doctrine of chances to justify the admission of
prior-acts evidence. The already-thin gap between the permissible
and impermissible inferences can narrow even further when the
State is allowed to argue probability to the jury. The ability of the
Although failure to create an adequate record is not per se error, we
implore the courts tasked with applying the doctrine of chances to
explain their reasoning in detail and with precision of thought.
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STATE v. RICHINS
Opinion of the Court
district court to assess the size of the gap, and the corresponding risk
that the jury would indulge the improper inference, can be
compromised by imprecise thinking. And the ability of an appellate
court to assess whether the district court abused its discretion is
severely weakened by general and imprecise analysis.
¶63 Although we recognize Richins’s concerns, the court of
appeals did not revivify the not-guilty rule. The district court
defined the issue in dispute as “what [Daughter] saw.” That
corresponded to the way that Richins intended to defend himself. He
did not plan to argue that Daughter made the story up, or directly
argue that she was mistaken in what she saw, but rather, in Richins’s
words, to “highlight Daughter’s own doubts about what she may
have seen.” And it appears that he intended to argue that Daughter
had been preconditioned to see him as a creepy letch entirely capable
of engaging in highly inappropriate public behavior.
¶64 The district court did not call this a defense of fabrication.
Nor did it analyze it as such. But the court of appeals concluded that
when the district court referenced “what [Daughter] saw,” it was
describing a fabrication defense. The court of appeals reasoned that
whether Daughter “intentionally lied about seeing Richins expose
himself or whether she subconsciously jumped to the conclusion that
he exposed himself does not change Richins’s basic assertion that he
was falsely accused.” Richins, 2020 UT App 27, ¶ 21. The court of
appeals concluded that, “under the principles set forth in Verde, this
distinction between intentional fabrication and involuntary bias is
without significance in our analysis.” Id.¶65 As an initial matter, we disagree with the court of appeals’
assessment that there was no significance in the different ways the
district court and the court of appeals described the relevant issue.
The distinction may be minor, but it is there. And when we are
talking about assessing the jury’s ability to distinguish between
permissible and impermissible inferences, small distinctions have
the potential to take on outsized importance.
¶66 Under the district court’s articulation, the State presents the
jury with the evidence of Richins’s other acts and asks it to conclude
that Daughter is likely to have seen what she said she saw because
Richins has engaged in this behavior before. Under the court of
appeals’ rebuttal of the fabrication rationale, the State asks the jury to
conclude that it is unlikely that Daughter is making up what she saw
because Richins has been accused of similar acts before and the odds
of five people fabricating their story are extremely long. Admittedly,
the gap between the permissible and impermissible inferences is
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extremely slight in both instances. But under the district court’s
“what [Daughter] saw” rationale, there appears to be even less
opportunity to guide the jury away from the impermissible
propensity-based inference.
¶67 That having been said, under either articulation, the
evidence the State sought to introduce spoke to a material issue that
was in bona fide dispute. This case is not like Verde, where we
discounted the State’s argument that it could introduce the prior-acts
evidence to demonstrate intent even though Verde had not contested
his intent at trial. See Verde, 2012 UT 60, ¶ 25. Although Richins
gamely attempted to articulate a defense that did not focus on the
question of which version of what happened that morning was
correct, all paths led to the jury needing to decide whether it
believed Richins or Daughter.
¶68 Richins may not have used the word fabrication, but his
defense put at issue whether Daughter’s account was correct. As
such, this is not a case where the State was attempting to sneak in
prior-acts evidence by claiming it pertained to an issue it did not.
The court of appeals did not err when it concluded that the district
court properly found that the other-acts evidence was material.8
_____________________________________________________________
8 We have stated that the doctrine of chances needs to be applied
with care and precision and that the “care and precision begin with
the party seeking to admit a prior bad act under the doctrine of
chances.” State v. Argueta, 2020 UT 41, ¶ 34, 469 P.3d 938. “This party
must articulate the ‘rare misfortune’ that triggers the doctrine’s
application” because “[w]ithout a clear articulation of what event is
being evaluated it is difficult to make sure that a prior bad act is
admissible under the doctrine for a permissible inference. Id.Here, whatever efforts the State made to assist in this, the district
court never defined the rare misfortune that Richins suffered. The
closest the district court came was to reference “allegations” when it
discussed frequency. Careful thinking about how to define the rare
misfortune will assist the court in identifying potential issues with
the foundational factors and assist the court in identifying the
permissible and impermissible inferences the prior-acts evidence
will present to the jury. To pick up on a theme we started in
Thornton, see 2017 UT 9, ¶ 54 & n.6, and continued in Argueta, a
careful trial judge who wants her doctrine of chances ruling to be
upheld on appeal will greatly increase the odds of affirmation if she
carefully defines what the rare misfortune at issue is.
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STATE v. RICHINS
Opinion of the Court
2. The Court of Appeals Incorrectly Analyzed Frequency Under the
Doctrine of Chances
¶69 The frequency element of the doctrine of chances requires
that “[t]he defendant must have been accused of the crime or
suffered an unusual loss ‘more frequently than the typical person endures
such losses accidentally.’” Verde, 2012 UT 60, ¶ 61 (citation omitted).
Richins argues first that the district court lacked a foundation to
conclude that Richins suffered a rare misfortune more frequently
than the typical person. Richins also argues that the district court
erred when it compared Richins to a “typical person” and not a
typical sex offender.
¶70 Richins argues that the court of appeals erred in upholding
the admission of the other-acts evidence because the district court
did not establish a baseline frequency with which a person could
expect the rare misfortune to occur. We agree.9
¶71 The district court’s entire frequency analysis consisted of
the sentence: “[T]he court find[s] that the State has met the frequency
requirement, inasmuch as four allegations in seven years is clearly
more accusations that a ‘typical’ person would endure.” The court of
appeals affirmed the district court’s bare-bones finding. Richins, 2020
UT App 27, ¶ 27. The court of appeals opined that it was “not
persuaded that being accused of the same lewd conduct on five
separate occasions by five different women is in any way typical of
the comparative population.” Id. As for what it relied on to reach
that conclusion, the court of appeals noted, “Utah courts have
typically applied the frequency prong of the doctrine of chances
without resort to statistical data, instead relying on common human
experience.” Id. ¶ 27 n.5.
¶72 We agree with Richins that this analysis was inadequate.
The district court’s finding was based on its own sense of the
question—its “intuition” about how frequently the rare misfortune
_____________________________________________________________
9 The State argues that Richins did not preserve this argument
because he did not ask the trial court to require the State to produce
“hard statistical data” to satisfy the frequency factor. It is true that
Richins did not ask for hard data below, but he did argue that the
events occurred too infrequently to meet the foundational threshold.
This was sufficient to preserve the issue that Verde and its progeny
required the State to establish the predicted frequency of the rare
misfortune.
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would occur in the general population. And the court of appeals’
conclusion was based on the same. Id. ¶ 27. We rejected that type of
conclusory analysis in State v. Argueta, 2020 UT 41, ¶ 39, 469 P.3d
938.
¶73 The State had charged Argueta with burglary and forcible
sexual abuse. Id. ¶ 8. He allegedly entered someone else’s house at
night and inappropriately touched a woman while she was in a
hypnagogic state. Id. ¶ 5. At trial, Argueta testified that he was in the
house because the victim’s boyfriend owed him $20 and had
promised to pay him back whenever Argueta came by his house. Id.
¶ 9. Argueta claimed he swung by to pick up the double sawbuck,
saw that keys had been left in the front door, worried about the
residents’ safety, and entered the apartment to put the keys inside.
Id. ¶ 10.
¶74 To rebut Argueta’s story, the district court allowed the
State to introduce evidence that Argueta had previously been found
trespassing near one woman’s house. Id. ¶ 11. The district court also
permitted the State to tell the jury that Argueta had peeped into
another woman’s window. Id. The district court allowed the
evidence to be admitted under the doctrine of chances. Id. ¶ 12. The
court of appeals held that Argueta did not properly preserve his
challenge to the peeping incident but that the trial court erred in
admitting the trespassing incident. Id. The court of appeals
concluded that the trespassing incident was inadmissible because
two of the foundational requirements of the doctrine of chances—
frequency and similarity—were not met. Id. ¶ 36.
¶75 On certiorari review, we noted that the court of appeals
had intuited that “[o]ne trespassing conviction does not increase the
statistical likelihood that on a different occasion” the defendant had
trespassed. Id. ¶ 43 (alteration in original) (citation omitted). But we
noted that we could not affirm that conclusion because the record
lacked a basis to support it. We held that a court cannot assess
frequency “solely on intuition.” Id. ¶¶ 39, 42–43. We concluded that
“[t]o evaluate the frequency of a ‘rare misfortune,’ a court must
ascertain some benchmark for the ‘typical person[’s]’ endurance of
the crime or unusual loss through testimony or judicial notice.” Id.
¶ 39 (second alteration in original) (quoting State v. Lane, 2019 UT
App 86, ¶ 49, 444 P.3d 553 (Harris, J., concurring). We opined that
“[w]ithout such a benchmark, the frequency requirement in Verde is
only empty words.” Id.¶76 In fairness to the district court and the court of appeals in
the case before us, we may have been slow to grasp the full scope of
21
STATE v. RICHINS
Opinion of the Court
the issues surrounding the use of intuition and common
understanding to assess the frequency with which we should
anticipate that events will occur. As we see it play out in practice, we
grow concerned with the practice of not requiring the State to
forward evidence to establish the frequency with which we should
expect certain events to occur. For example, in Argueta the district
court implicitly found frequency satisfied based upon one incident
of trespass and one incident of peeping. See id. ¶ 11. But the district
court did not have anything other than its intuition to guide its
decision. Id. ¶¶ 42–43. Similarly, courts have, without the benefit of
evidence to confirm their general sense of the probability, found
frequency satisfied based upon a single prior robbery. See State v.
Lomu, 2014 UT App 41, ¶ 32, 321 P.3d 243.
¶77 We are becoming increasingly uneasy because when we ask
district courts to assess frequency without the benefit of data, we are
inviting them to draw on stereotypes and assumptions that may not
hold true. This is part of what inspired the Argueta court to conclude
that courts need to stop trusting their intuition about probabilities
and need to establish a baseline from which a frequency analysis can
proceed. See Argueta, 2020 UT 41, ¶ 39.
¶78 A scholar of the doctrine of chances has posited a
hypothetical that helps illuminate that when it comes to assessments
of frequency, our intuition may be an unreliable guide. See Edward J.
Imwinkelried, The Use of Evidence of an Accused’s Uncharged
Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf
the Character Evidence Prohibition, 51 OHIO ST. L.J. 575, 586–88 (1990).
Professor Imwinkelried analyzes the facts of United States v. Woods,
484 F.2d 127 (4th Cir. 1973). In Woods, as Professor Imwinkelried
explains, the head of an orphanage stood accused of infanticide after
a child in her care suffocated. Imwinkelried at 586. The prosecution
proposed to introduce evidence that, over a twenty-five year period,
twenty other children in the orphanage had suffered cyanotic
episodes—episodes of reduced blood flow from the lungs that can
lead to suffocation. Id. The prosecution offered the evidence under
the doctrine of chances to demonstrate that the rate of cyanosis in the
orphanage suggests that the cause of the episodes is not accidental.
Id.¶79 If we were to rely on our intuition, we might be tempted to
conclude that twenty-one cyanotic incidents in the orphanage must
be more than what is possible based on chance alone—that they
must imply some improper conduct on part of the accused. After all,
twenty-one episodes in twenty-five years sounds like an alarming
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number. But, as Professor Imwinkelried hypothesizes, if statistics
showed that two percent of American children suffer cyanotic
episodes, and the accused has cared for 3,000 children during the last
two and a half decades, then the children in the accused’s care have
actually fared better than children who don’t live in the orphanage.
Id. at 591. This helps us understand that we don’t always know what
we think we know. Developing the relevant baseline matters.10
_____________________________________________________________
10 The State argues that we have never required a statistician to
opine or required a party to introduce “hard statistical data” in every
case. We are not suggesting that the State must call a statistical
expert every time it wants to use the doctrine of chances. As
Professor Imwinkelried notes, there exist a variety of ways to
establish a baseline frequency:
There may be pre-existing data compilations.
Government agencies or private research organizations
might have gathered empirical data, for example, in the
form of an epidemiological study. The studies may be so
authoritative that the data is judicially noticeable, or the
study may fall within the learned treatise exception to the
hearsay rule.
Imwinkelried at 591 (citations omitted). And, “[i]f the data has not
been compiled but it is accessible, the prosecutor can retain an expert
to use recognized statistical techniques to gather the data
establishing the frequency.” Id.
Professor Imwinkelried further concludes that “[f]ailing all other
methods, the prosecutor can ask the judge to rely on her conception
of common, human experience to resolve the question.” Id. The State
echoes this, arguing that a court can take notice of facts within
“common experience or knowledge” such as “facts relating in
general to the prevalence of crime.” But it is this final method that
we fear can lead the court into unwitting error. A personal sense of
the anticipated frequency with which we would expect an act to
occur is not a “fact” that generally relates to the prevalence of crime.
Nor is it necessarily within our common experience or knowledge.
To guard against the potential to err, a court should require the State
to introduce evidence to establish the baseline probability. To be
clear, a court may, by following Utah Rule of Evidence 201, take
judicial notice of facts not subject to reasonable dispute because they
are either “generally known” or “can be accurately and readily
determined from sources whose accuracy cannot reasonably be
(continued . . .)
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STATE v. RICHINS
Opinion of the Court
¶80 That benchmark is lacking here. The district court relied
solely on its own intuition to establish the frequency with which we
would expect a typical person to be accused of public masturbation.
This was error. The court of appeals erred when it concluded that the
district court did not abuse its discretion when it admitted the other-
acts evidence under the doctrine of chances.
¶81 Richins also argued to the court of appeals that to establish
a baseline, the district court needed to focus on the frequency with
which someone in Richins’s particular position could have been
expected to suffer the rare occurrence. Richins, 2020 UT App 27, ¶ 27.
The court of appeals rejected this argument, noting that “Utah courts
have never required such tailoring of data to reflect the number of
accusations against a specific population.” Id.¶82 Although Richins argues that this was error, Richins cites to
no case in which a court has deviated from looking at the extent to
which a typical person would suffer the loss. Nor does Richins
engage with the number of cases in which we have held that “the
typical person” is the proper comparison to assess frequency under
the doctrine of chances. Verde, 2012 UT 60, ¶ 61 (citation omitted); see
also Argueta, 2020 UT 41, ¶ 39 (explaining that frequency requires
that “the defendant ‘must have been accused of the crime or suffered
an unusual loss more frequently than the typical person endures
such losses accidentally.’” (citation omitted)); State v. Lopez, 2018 UT
5, ¶ 57, 417 P.3d 116 (affirming this standard); State v. Lowther, 2017
UT 34, ¶ 38, 398 P.3d 1032 (same); see also Lomu, 2014 UT App 41,
¶ 32 (same); State v. Balfour, 2018 UT App 79, ¶ 31 n.8, 418 P.3d 79(same).
¶83 Richins instead cites to an article that contends, “Utah
courts do not encounter ‘typical people’ as criminal defendants.”
Andrea J. Garland, Beyond Probability: The Utah Supreme Court’s
“Doctrine of Chances” in State v. Verde Encourages Admission of
Irrelevant Evidence, 3 UTAH J. CRIM. LAW 6, 20 (2018). The article’s
author argues that the odds of being arrested for a crime in Salt Lake
County are so low that being accused of a crime just once is already
atypical. Id. The author thus argues that a criminal defendant will
always have been accused of a particular crime more times than the
typical person—negating the purpose of our frequency prong. Id.questioned.” See UTAH R. EVID. 201(b). But a court should not
confuse its assumptions for generally known facts.
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¶84 Although Richins does not provide any other authority to
support his argument, we note that Judge Harris leveled a similar
criticism in Lane, 2019 UT App 86, ¶ 49 (Harris, J., concurring). Judge
Harris very effectively denounced the district court’s analysis that a
defendant who had been involved “with three serious assaults in
four years” was “not mere accident.” Id. Judge Harris criticized the
district court for reaching that conclusion in the face of the
defendant’s “chronic homelessness and the higher frequency of
assault surrounding shelters.” Id. Judge Harris reasoned:
The court did not take any evidence to establish the
profile of a “typical” resident of that part of Salt Lake
City, or any evidence intended to establish a baseline
regarding the number of physical altercations per year
in which such a resident might typically be involved.
Under these circumstances, I see no reasoned basis for
the court’s intuition-level conclusion that a person
living in that part of the city becoming involved in one
fight every fifteen months is necessarily “frequent.”
Bound up in that analysis are various assumptions by
the court—arrived at without evidence—of what living
conditions are like for homeless citizens of Salt Lake
City. This is an instance where the court, in my view,
needed to take additional evidence—from experts, if
necessary—to arrive at a sound conclusion about
whether the number of assaults in which [the
defendant] was involved was atypical for a resident of
that part of town.
Id.¶85 Richins and Judge Harris have diagnosed a potential
weakness in the doctrine of chances’ application. There are
undoubtedly people who will suffer certain rare losses at a greater
rate than the population at large for reasons unrelated to the random
probability rationale that powers the doctrine of chances. To take an
extreme example, most people will live their lives without ever being
struck by lightning. The National Weather Service estimates an
American has only a 1 in 15,300 chance of being struck. How
Dangerous is Lightning? NAT’L WEATHER SERV.,
www.weather.gov/safety/lightning-odds (last visited Aug. 5, 2021).
But one ranger in Shenandoah National Park claimed to have been
struck by lightning seven times. Tom Dunkel, Lightning Strikes: A
Man Hit Seven Times, WASH. POST MAG. (Aug. 15,
2013), https://www.washingtonpost.com/lifestyle/magazine/insid
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STATE v. RICHINS
Opinion of the Court
e-the-life-of-the-man-known-as-the-spark-
ranger/2013/08/15/947cf2d8-ea40-11e2-8f22-
de4bd2a2bd39_story.html. Although that is an exceptional number,
something might explain the frequency of the misfortune. A ranger
assigned to work outdoors in a mountain range with prevalent
lightning storms is likely to be struck by lightning more frequently
than the typical person.
¶86 We do not believe that the answer to the problem is to
tailor the data so it fits the subpopulation to which the defendant
belongs. This would just breed disputes over how to define the
relevant subpopulation and add another layer of complexity to an
analysis that some of our courts already appear to be struggling to
apply correctly. Rather than open that door, we prefer to emphasize
two existing requirements that should, if applied properly, address
the concerns Richins raises here and Judge Harris raised in Lane.
¶87 The first is the independence inquiry that a court must
undertake before it can admit prior-acts evidence under the doctrine
of chances.11 The non-propensity based probative value of prior-acts
evidence comes from “the improbability of chance repetition of the
same event.” Verde, 2012 UT 60, ¶ 60 (quoting Mark Cammack, Using
the Doctrine of Chances to Prove Actus Reus in Child Abuse and
Acquaintance Rape: People v. Ewolt Reconsidered, 29 U.C. DAVIS L. REV.
355, 402 (1996)). As a result, any fact that suggests that the repetition
is not the product of chance tends to show that the prior acts are not
independent of one another. In that instance, something other than
random chance might explain why the defendant has suffered the
rare misfortune more frequently than the typical person.
¶88 For example, we have said that collusion between
witnesses demonstrates a lack of independence. See Lopez, 2018 UT 5,
¶ 56 (“The independence requirement helps ensure there is no
_____________________________________________________________
11 Perhaps because we have mostly spoken of independence in
terms of collusion, and because there was no evidence of collusion
between Daughter and Richins’s other accusers, Richins conceded
independence before the district court. We therefore offer no opinion
on whether the State satisfied its burden of demonstrating that the
prior acts the district court admitted here were independent of one
another. Nor do we opine on what the district court might have done
with an argument that Daughter’s allegation was not independent of
the others because Mother had warned Daughter to stay away from
Richins.
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collusion between the victims and that the victims have not
influenced each other’s recollections of what occurred.”). In the
context of prior accusations, we cannot say that the accusations (and
the details underlying those accusations) are truly the product of
random chance if the accusers have discussed their accusations.
¶89 But collusion is not the only way to show a lack of
independence. In Lane, for example, evidence that the defendant
frequented a high-crime area where a person will often need to
defend himself against violent attack suggests that the two times
Lane was previously involved in a fight may not have been the
product of random chance. See Lane, 2019 UT App 86, ¶ 49 (Harris, J.,
concurring). A district court should, when assessing evidence
through the lens of the doctrine of chances, be on the lookout for
those factors that show that the random events a party wants to
admit under the doctrine of chances aren’t actually random. And if
the party seeking admission of the evidence cannot foreclose the
possibility that something other than random chance or the
probability-based inference she wants the jury to draw from the
evidence explains why the defendant has suffered the rare
misfortune at an unusual rate, the district court should not admit the
evidence under the doctrine of chances.
¶90 The second safeguard exists in a proper rule 403 balancing
analysis. District courts must recognize that when they conduct a
rule 403 balancing, the doctrine of chances evidence does not have
the same probative value when other factors explain why a
defendant might suffer a particular loss more frequently than the
average person. Similarly, the potential for unfair prejudice is even
greater where there is an innocent reason why the defendant
experiences the loss more frequently than the typical person.
¶91 Lane illustrates this. Lane experienced “chronic
homelessness.” See id. The State charged Lane with aggravated
assault after he was involved in a fight that ended with Lane cutting
a victim’s face three times with a knife. Id. ¶¶ 2–3. Lane claimed self-
defense. Id. ¶¶ 7–8. The State sought to introduce evidence of two
other instances where Lane had been involved in fights where he
had cut his opponent’s face. Id. The court of appeals assumed,
without deciding, that the evidence could be admitted under 404(b).
Id. ¶ 21. But the court held that the district court erred because
evidence should have been excluded under rule 403. Id. ¶ 21-24.
¶92 The Lane court reasoned that “it is not highly strange or
unlikely that Lane would need to defend himself multiple times over
years of living in a high crime area.” Id. ¶ 24. It also concluded that
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STATE v. RICHINS
Opinion of the Court
the State’s proffered use of the evidence would be “substantially
outweighed by the unfairly prejudicial inference that Lane has the
character of someone who continuously provokes altercations, cuts
the faces of his victims, and then claims self-defense.” Id.
¶93 We can recharacterize the court of appeals’ analysis in the
language of permissible and impermissible inferences. Assuming
that the State could establish the baseline that Lane had been the
victim of assaults that required him to defend himself more than a
typical person, there are a number of inferences the jury could draw.
It could permissibly infer that the fact Lane frequented a high crime
area explains why he needed to defend himself so often. It could also
permissibly infer that, as the State pressed, Lane fabricated his story
of self-defense because he had claimed self-defense a number of
times before and a typical person would not need to defend himself
that many times. Or, the jury could draw the impermissible inference
that he is the sort of person who gets into fights and cuts his
opponent.
¶94 The Lane court opined that the probative value of the
evidence was substantially outweighed by the risk of unfair
prejudice. See id. ¶ 24. Although the court of appeals did not state so
directly, the probative value of the inference that Lane had fabricated
his self-defense claims was reduced because the other permissible
inference offered another explanation for the frequency of Lane’s
repeated misfortune. The risk of the jury latching onto the
impermissible inference remained high because that risk is always
high when we are dealing with prior-acts evidence. As such, the
court of appeals correctly concluded that the evidence’s probative
value was substantially outweighed by the danger of unfair
prejudice. See id.
¶95 Simply stated, we agree with Richins that courts need to be
attuned to factors that might explain why a defendant has suffered a
rare misfortune more than the typical person. But we disagree with
Richins’s conclusion that the way to deal with those factors is to
compare the defendant to a similarly situated person. Instead, we
instruct courts applying the doctrine of chances to carefully define
the rare occurrence, assiduously evaluate whether the foundational
factors have been satisfied, conduct a rule 403 analysis that focuses
on the unique unfair prejudice that can flow from the admission of
prior-acts evidence, and explain their reasoning in a transparent
manner.
¶96 Because the State failed to establish the relevant baseline
frequency, the district court erred when it admitted the other-acts
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evidence under the doctrine of chances. And the court of appeals
erred when it affirmed the district court’s decision.
II. WE REVERSE THE COURT OF APPEALS’ DECISION
TO UPHOLD THE DISTRICT COURT’S CONCLUSION
THAT RULE 403 DOES NOT REQUIRE THE EXCLUSION
OF THE OTHER-ACTS EVIDENCE
¶97 Richins also asks us to reverse the court of appeals holding
that the other-acts evidence did not run afoul of rule 403 of the Utah
Rules of Evidence. See State v. Richins, 2020 UT App 27, ¶ 31, 460 P.3d
593. Richins argues the court of appeals erred in four ways when it
held that the district court had properly applied rule 403.12 Richins
needs to convince us that one of those arguments is correct to
prevail. We agree with Richins that the court of appeals should not
have affirmed the district court’s holding that rule 403 did not
require exclusion of the other-acts evidence.13 The district court
abused its discretion in admitting that evidence because the risk of
unfair prejudice emanating from its admission substantially
outweighed its probative value.
¶98 We have always envisioned that rule 403 would play a
crucial role in the doctrine of chances analysis. In State v. Verde, we
said that the “four foundational requirements . . . should be
considered within the context of a rule 403 balancing analysis.” 2012
_____________________________________________________________
12 Richins first argues that “the similarity between the other-acts
and the charged conduct increased the other-acts’ risk for unfair
prejudice,” rather than reducing its risk of unfair prejudice, as the
court of appeals concluded. Richins next argues that the court of
appeals failed to balance the other-acts evidence’s probative value
against its improper propensity tendency as part of its 403 analysis.
Richins then contends that admitting the other-acts evidence via
stipulation did little to actually limit the impermissible propensity
inference based on the evidence. He last argues that the other-acts
evidence—even if admissible under the doctrine of chances—should
have been excluded as impermissible statistical evidence that
Daughter was telling the truth under rule 403.
13 Utah Rule of Evidence 403 provides that a “court may exclude
relevant evidence if its probative value is substantially outweighed
by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.”
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Opinion of the Court
UT 60, ¶ 57, 296 P.3d 673, abrogated on other grounds by State v.
Thornton, 2017 UT 9, ¶ 57, 391 P.3d 1016. We held that “even if 404(b)
evidence appears to have a dual purpose—to be aimed at both
proper and improper inferences—it may nonetheless be excluded
under rule 403 if” it runs afoul of that rule’s balancing test. Id. ¶ 17.
We also explained that “[f]idelity to the integrity of the rule requires
a careful evaluation of the true—and predominant—purpose of any
evidence” offered under the doctrine of chances. Id. ¶ 22. We
explained that “if the evidence may sustain both proper and
improper inferences under rule 404(b), the court should balance the
two against each other under rule 403.” Id. ¶ 18. This evidence
should be excluded if “any permissible purpose is outweighed by its
propensity for an improper inference or for jury confusion about its
real purpose.” Id. ¶ 22. We emphasized that this “weighing is
essential to preserve the integrity of rule 404(b)” because without it,
“evidence of past misconduct could routinely be allowed to sustain
an inference of action in conformity with bad character—so long as
the proponent of the evidence could proffer a plausible companion
inference that does not contravene the rule.” Id. ¶ 18.
¶99 In Thornton, we reaffirmed the importance of rule 403 when
a court considers prior-acts evidence. We said that the “court’s job
under rule 404(b) is not to balance or weigh competing (proper and
improper) inferences.” Thornton, 2017 UT 9, ¶ 59. Rather, that
“weighing comes in under rule 403.” Id. And we repeated our
holding in Verde that “if 404(b) evidence appears to have a dual
purpose—to be aimed at both proper and improper inferences—it
may nonetheless be excluded under rule 403.” Id. (quoting Verde,
2012 UT 60, ¶ 17).14
¶100 In this case, the court of appeals noted the limitations of the
district court’s rule 403 analysis. The court of appeals wished that the
district court had been “more thorough,” but it nevertheless held
that the district court’s analysis was sufficient. Richins, 2020 UT App
27, ¶ 31. We agree that the district court should have been “more
thorough.” We reemphasize here that a district court must examine
the specific probative value of the evidence being weighed under
_____________________________________________________________
14 We take this opportunity to amplify what we said in Thornton.
If our jurisprudence is to embrace the use of the doctrine of chances,
courts will need to perform a rule 403 inquiry that includes a
weighing of the permissible and impermissible inferences the jury
could take from prior acts evidence.
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rule 403 and also of all of its potential prejudicial effects. And that a
district court must give attention to the unfair prejudice that can
flow from a jury placing its faith in the impermissible inference. In
other words, when considering a rule 403 challenge to doctrine-of-
chances evidence, a district court must weigh the probative value of
the proper inference against the risk that the jury will draw the
impermissible evidence. The district court did not do that here.
¶101 But the court of appeals was willing to overlook the failings
in the district court’s order. And the court of appeals gave three
reasons why it believed the district court had correctly balanced the
other-acts evidence’s probative value against the dangers rule 403
identifies. See id. The court of appeals first held that the evidence was
admitted for a probative purpose: rebutting Richins’s fabrication
defense. Id. The court of appeals next reasoned that the stipulation
that admitted the evidence “greatly sanitized” the other-acts
evidence by removing inflammatory facts and eliminating “live
victim testimony.” Id. Finally, the court of appeals concluded that the
risk of unfair prejudice was reduced because the district court
instructed the jury that the evidence should not be used “to prove a
character trait of the defendant.” Id.¶102 We agree with the court of appeals insofar as we agree it
was important for the district court to have examined the purpose of
the evidence’s admission and to have taken steps to mitigate
potential unfair prejudice. But those measures cannot compensate
for the district court’s failure to conduct the type of balancing that
we described in Thornton.
¶103 Thornton instructs the district court to “balance or weigh
competing (proper and improper) inferences. . . . under rule 403.”
2017 UT 9, ¶ 59. The district court needed to identify the likely
inferences the jury would draw from the other-acts evidence and
then ask if the evidence’s probative value (the jury drawing a
permissible inference) was substantially outweighed by the danger
of unfair prejudice (the jury drawing an impermissible inference). If
the district court were to conclude that the jury is substantially more
likely to rely on an impermissible inference, the evidence must be
excluded under rule 403. The district court did not engage in that
analysis here, and it abused its discretion as a result. The court of
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STATE v. RICHINS
Opinion of the Court
appeals then erred by upholding the district court’s admission of the
other-acts evidence without that analysis.15
¶104 Had the district court employed this balancing, it should
have concluded that the evidence’s probative value was
substantially outweighed by the danger of unfair prejudice. This is
because the district court identified the purpose for admitting the
evidence as determining “what [Daughter] saw.” Under that
articulation, there is little separating the impermissible inference
from the permissible one. Although the purpose may be couched in
terms of probability, the district court admitted the evidence to
permit the jury to infer that Daughter saw what she said she saw
because Richins was accused of doing the same thing before. The
risk of the jury making a character-based inference substantially
outweighs the probative value of the other-acts evidence under these
circumstances.
¶105 The result does not change if we give the district court’s
ruling the more generous gloss that the court of appeals did. They
analyze the question as if the district court really meant that the
other-acts evidence was admitted to rebut a claim of fabrication.
Richins, 2020 UT App 27, ¶ 21. Under that articulation, there is a
little, but only a little, more room between the permissible and
impermissible inference. The non-propensity-based inference is that
because Richins had been accused of similar behavior on four prior
occasions, it is unlikely that Daughter fabricated a story that closely
matched the other accusations. The impermissible inference is the
same as before—because Richins did this type of thing before, he did
it this time. But even in this posture, the risk of the jury resorting to
the impermissible inference overwhelms the possibility that the jury
will confine itself to focusing on the probability of fabrication. Stated
differently, we have no confidence that, having told the jury that
_____________________________________________________________
15 This is not to suggest that the rule 403 balancing we described
in Verde and Thornton displaces the other balancing that a district
court must do under rule 403. Notions of unfair prejudice and issue
confusion, as well as conventional assessments of probative value,
are still fair game in the doctrine of chances context. But a district
court will necessarily err if it fails to balance the permissible and
impermissible inferences because a district court abuses its discretion
when it misapplies the law. See State v. Barrett, 2005 UT 88, ¶ 16, 127
P.3d 682 (“[T]rial courts do not have discretion to misapply the law.”
(alteration in original) (citation omitted)).
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Richins engaged in this behavior previously, the jury would do
anything other than indulge the inference rule 404(b) exists to
prevent.
¶106 Although the district court erred by failing to exclude the
evidence, we applaud two steps that the State and the district court
took to mitigate the prejudice that would flow from the evidence’s
admission. First, the State agreed to admit the evidence in through a
stipulation that, to a large degree, sanitized the other-acts evidence
by removing salacious and extraneous details. Second, the district
court instructed the jury on the proper use of the other-acts evidence.
In a different case, steps like these might have had a material impact
on the rule 403 balancing. Here, however, the danger of the jury
drawing the impermissible inference so substantially outweighed the
evidence’s probative value that the stipulation and jury instruction
could not have a curative effect. But we commend the district court
for its decision to permit the stipulation and to instruct the jury
about the proper use of prior acts evidence. We encourage other
courts to do the same.
III. ADMISSION OF THE OTHER-ACTS EVIDENCE
PREJUDICED RICHINS
¶107 Richins argues that he should receive a new trial because
admission of the other-acts evidence prejudiced him. “[A]n
[evidentiary] error requires reversal only if there is ‘a reasonable
likelihood of a more favorable result’ for the accused had the error
not occurred.” State v. Lopez, 2018 UT 5, ¶ 30, 417 P.3d 116 (alteration
in original) (citation omitted). “A reasonable likelihood of a more
favorable outcome exists if our confidence in the result of the trial is
eroded.” Id. (citation omitted).
¶108 Richins argues that, absent the other-acts evidence, the jury
would have only heard the “uncertain” testimony of Neighbor and
Daughter. Daughter testified that “[i]t kind of looked like [Richins]
might have been masturbating.” Daughter also said it was “possible”
that Richins wasn’t masturbating at all—that he had his “hands in
his pockets.”
¶109 Neighbor’s testimony was similarly equivocal. She said that
he “may have just had his hands clasped in front of him. That’s all I
saw.” See also supra ¶¶ 4-7.
¶110 The State defends the strength of this testimony, opining
that it was not “uncertain.” And, indeed, there are moments when
Daughter testified more definitively. The State points to Daughter’s
testimony that it “certainly looked like [Richins] was holding
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STATE v. RICHINS
Opinion of the Court
something down near his pockets.” She also testified that Richins
was “clearly holding something.” And she said that his hands were
moving “in a back and forward motion.” But all this means is that
the jury heard Daughter testify with varying degrees of certainty
about what she saw. It does not negate the times the jury heard
Daughter hedge.
¶111 We also know that during deliberations, the jury sent a note
asking what they should do if they could not reach a verdict. See
supra ¶ 31. This strongly suggests that, for a time, at least one juror
entertained doubts of Richins’s guilt.
¶112 The jury sent this note even after the State had made the
doctrine of chances a central talking point. The prosecutor began his
opening statement by talking about “coincidences,” saying that there
was a coincidence in the case with both his last name and birthday—
but said that those two facts mean “nothing,” as they were “just
coincidences” or “[r]andom facts” or “[r]andom occurrences.” See
supra ¶ 26. He then claimed there would be “some data in this trial,
some probabilities and some things like that, that actually will be
firm and strong and sound enough that you can make conclusions
based on that data.” See supra ¶ 27. He previewed both Daughter’s
testimony and the other-acts evidence. See supra ¶ 28. He concluded
his opening statement by directly linking Daughter’s testimony and
the other-acts evidence as the two key components of his case,
saying “because of this [other-acts] evidence and the evidence of
[Daughter], we’ll be asking you to return a guilty verdict.” See supra
¶ 28.
¶113 In closing argument, the prosecutor asked, “So how is it
when you apply that to these four separate allegations, right, and
then [Daughter’s] description of the exact same conduct essentially,
what are the odds of such a misfortune befalling Mr. Richins on five
separate occasions?” See supra ¶ 29. Without the admission of the
other-acts evidence, the prosecutor would have had no basis for
these arguments. And the prosecutor would have been stuck with
Daughter’s decidedly less-than-decisive testimony.
¶114 It is therefore not difficult for us to conclude that removing
the evidence of the four other times Richins was accused of similar
behavior would have impacted the jury such that “our confidence in
the result of the trial is eroded.” Lopez, 2018 UT 5, ¶ 30 (citation
omitted). We reverse the court of appeals and hold that, if the jury
had not heard the other-acts evidence, Richins stood a reasonable
likelihood of a more favorable outcome. Richins is entitled to a new
trial.
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CONCLUSION
¶115 The court of appeals erred when it upheld the district
court’s decision to admit evidence of Richins’s prior bad acts. The
district court exceeded the bounds of its discretion because the State
did not lay a proper foundation for the admission of the evidence
under the doctrine of chances. Specifically, the State did not
introduce evidence that would permit the district court to conclude
that Richins had been accused of improper behavior more frequently
than a typical person. In addition, the district court abused its
discretion when it concluded that the probative value of the
evidence was not substantially outweighed by the risk of unfair
prejudice. The district court did not, as it is required to do, weigh the
probative value of the permissible inference the State asked the jury
to indulge against the danger that the jury would rely on the
evidence to draw the impermissible inference. The court’s errors
prejudiced Richins and he is entitled to a new trial. We reverse and
remand.
35