State v. Eddington , 2023 UT App 19 ( 2023 )

2023 UT App 19THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
NEAL OGDEN EDDINGTON,
Appellant.
Opinion
No. 20180597-CA
Filed February 16, 2023
First District Court, Logan Department
The Honorable Kevin K. Allen
The Honorable Angela Fonnesbeck
No. 171101138
Ann M. Taliaferro, Attorney for Appellant
Sean D. Reyes and John J. Nielsen,
Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Neal Ogden Eddington was convicted by a jury of sexual
battery and object rape but acquitted of more serious charges,
including rape, aggravated sexual assault, and aggravated
kidnapping. Prior to trial, the prosecution employed Utah’s rape
shield rule—rule 412 of the Utah Rules of Evidence—to obtain a
pretrial ruling barring Eddington from asking questions about or
remarking on his alleged victim’s prior sexual behavior or sexual
disposition. At trial, the State turned these rulings into a sword,
asserting in an opening statement that Eddington took his alleged
victim’s “virtue” and then eliciting testimony from her that she
was not the kind of girl who invites guys into her bedroom or
State v. Eddington
engages in certain sexual activity. When Eddington attempted to
cross-examine the alleged victim about her statements, the trial
court cut off the attempt, citing its earlier ruling. Eddington now
challenges the court’s ruling, given the change in circumstances
at trial. He additionally claims his counsel was ineffective for
failing to seek admission of and question the alleged victim about
known evidence. We agree that the trial court exceeded its
discretion in barring Eddington from the cross-examination
requested under the facts of this case and further determine that
Eddington’s counsel rendered ineffective assistance. We therefore
vacate his convictions and remand this matter for a new trial.
BACKGROUND
¶2 Eddington met Emily 1 on an ostensibly religious-oriented
dating app, and they decided to meet in person for dinner.
Afterward, they went to Emily’s apartment, which she shared
with several roommates, to watch a movie. Eddington wanted to
watch the movie in Emily’s bedroom, but she declined that
invitation. Instead, they watched it in Emily’s living room and
consensually kissed on the couch during the movie. After the
movie ended, Eddington asked to talk privately with Emily, so the
two went together to Emily’s bedroom. This is where their stories
diverge.
¶3 According to Emily, Eddington “immediately” grabbed
her “by the neck” and threw her onto the bed. He squeezed her
throat, ripped her jeans in half, “ripped off [her] bra,” and fondled
and kissed her breasts. He “flipped [her] over onto [her] stomach”
and started kissing her lower back and buttocks. Emily asked
Eddington to stop because she “didn’t want to and that wasn’t the
person [she] was.” He vaginally penetrated her with his fingers
and tried to put his penis in her vagina but stopped when she
resisted. He then forced her to perform oral sex on him several
times. Although Emily told him “no” at least twenty times, he
1. A pseudonym.
20180597-CA 2 2023 UT App 19State v. Eddington
refused to stop, repeatedly telling her that it was her “fault”
because she was “so beautiful.” Eventually, Emily relented to the
activity and pretended she was “okay with it” so that Eddington
would not hurt her.
¶4 At one point during the evening, Emily’s roommate came
to the bedroom door with Emily’s dog. The roommate asked if
everything was okay, and Emily responded in the affirmative; she
explained that she did so because Eddington was standing right
behind her and she was scared that Eddington would harm her or
her roommates. In addition, one of Emily’s roommates sent her a
text message early in the morning asking if Eddington was still in
Emily’s bedroom and if everything was okay. According to Emily,
Eddington forced her to unlock her phone so he could read the
messages and told Emily to respond “that everything was fine
and [she] made him sleep on the floor.” Emily also left her
bedroom at some point during the night to use the bathroom.
When Emily came out of the bathroom, Eddington was waiting
for her right outside the door and the two went back into Emily’s
bedroom.
¶5 Eddington does not deny that Emily performed oral sex on
him several times during the eight hours they spent together in
Emily’s bedroom or that he inserted his fingers into her vagina,
but he maintains that the entire encounter was consensual. He
also admits that he “made advancements toward intercourse” but
claims that he stopped when Emily objected.
¶6 The next morning after Eddington left the apartment,
Emily told her roommate “that things went well” and that “she
might be seeing him again.” However, later that day, Emily
showed the roommate her torn jeans and told her more about
what had happened the night before. Emily reported the alleged
assault to the police, who then had Emily place a pretextual phone
call to Eddington. Eddington was arrested and interviewed by
police. During the recorded phone call and interview, Eddington
maintained that all the sexual activity with Emily was consensual.
He shared certain details about Emily with the police detective
20180597-CA 3 2023 UT App 19State v. Eddington
regarding their sexual encounter and their conversations during
the encounter. Officers obtained and executed a search warrant
on Eddington’s car and recovered a shotgun from the trunk. The
State eventually charged Eddington with three counts of
aggravated sexual assault, see Utah Code § 76-5-405, 2 and one
count of aggravated kidnapping, see id. § 76-5-302.
¶7 Prior to trial, the State filed a brief motion in limine to
exclude any evidence of Emily’s prior sexual activity under rule
412 of the Utah Rules of Evidence. 3 See generally Utah R. Evid. 412
(prohibiting, in most cases, the admission of evidence offered to
prove that a victim engaged in other sexual behavior and
evidence offered to prove a victim’s sexual predisposition).
Eddington did not oppose this motion, and the trial court granted
it.
¶8 At trial, however, several incidents occurred that
Eddington’s counsel (Counsel) argued opened the door to the
admission of certain evidence regarding Emily’s sexual history.
First, during his opening statement, the prosecutor told the jury
that Eddington “took [Emily’s] virtue.” After the opening
statements, outside the presence of the jury, Counsel argued that
because the prosecutor’s remark left the jury with the impression
that Eddington took Emily’s virginity, which was not accurate,
the State had opened the door to allow the admission of evidence
regarding Emily’s sexual history. The court rejected Eddington’s
2. The alleged crimes underlying the three aggravated sexual
assault charges were forcible sodomy, see Utah Code § 76-5-403,
rape, see id. § 76-5-402, and object rape, see id. § 76-5-402.2.
3. The entirety of the State’s motion read: “COMES NOW, the
State of Utah, by and through its attorneys . . . , and submits the
following Motion in Limine. The State objects to Defendant’s use
or mention of any sexual activity of the alleged victim . . . that was
not with the Defendant, Neal Eddington, as these are irrelevant to
the case, and prohibited by Rule 412 of the Utah Rules of
Evidence.”
20180597-CA 4 2023 UT App 19State v. Eddington
assertion and ruled, “I think [the statement] can be interpreted in
more than one way, . . . I don’t think it’s unduly prejudicial and I
don’t think it opens the door.”
¶9 Later, when the prosecutor asked Emily why she did not
want to watch the movie in her bedroom, she responded,
“Because it was a first date and I barely knew him. . . . And I’m
not the kind of girl that invite[s] guys into my bedroom.” A few
minutes later, in response to a question from the prosecutor about
what she was saying during the attack, Emily stated, “[I told
Eddington] I didn’t want to and that that wasn’t the person I was.
I asked him to stop.” Emily also testified, “I kept asking him to
stop because I didn’t want that, that’s not who I am,” when
explaining why she told Eddington to stop kissing her breasts,
back, and buttocks. Counsel again argued that these statements
were “commenting on [Emily’s] prior sexual behavior and
opening the door and creating a false impression in the mind of
the jury about what she does or doesn’t do.” To remedy this
asserted misimpression, Counsel wanted to ask Emily two follow-
up questions: (1) “Isn’t it true that you have invited guys into your
bedroom and had sexual activity on prior occasions?” and (2)
“Isn’t it true that you have had sexual activity on prior
occasions?” However, the court did not permit Counsel to ask
these questions, determining that Emily’s statements during her
testimony did not open the door to the admission of any evidence
of her sexual past.
¶10 As part of its case, the State submitted to the jury the
recordings and transcripts of Eddington’s phone call with Emily
and his interview with police. The police interview was redacted
to comply with the court’s pre-trial rule 412 ruling to exclude
“portions that made reference to prior sexual activity.”
Specifically, the version given to and heard by the jury omitted
statements Eddington made to the detective that, during the
evening in question, he and Emily had talked about their past
dating experiences and that Emily had told Eddington that she
had prior sexual experience, including experience performing
oral sex.
20180597-CA 5 2023 UT App 19State v. Eddington
¶11 In the unredacted portion of the interview, Eddington
described for the police some of the activities that occurred
between him and Emily, which included Emily instructing him on
how to rub his penis between her breasts and ejaculate, telling him
she was climaxing while he was touching her, and consoling him
when he expressed religious guilt about their sexual activity by
telling him that what they were doing was “not a big deal.” The
jury listened to the redacted version of the recordings of both the
phone call and the interview and had the written transcripts as
exhibits, and Counsel highlighted Eddington’s expression of
religious guilt while cross-examining the detective who
conducted the interview. But when questioning Emily and the
detective, neither Counsel nor the State asked questions about
Emily’s statements made to Eddington during the night of the
incident or the behavior disclosed by Eddington during his
interview. In particular, Counsel did not ask Emily to confirm that
she had made the statements and taken the actions that Eddington
indicated she had made or taken.
¶12 Throughout his interview with police, Eddington
maintained that all the activity between him and Emily was
consensual. He did admit to the detective, however, that he “was
a little aggressive,” that he ripped Emily’s pants and bra, that he
threw Emily on the bed when they went to the bedroom, and that
though Emily said “no” several times and he pulled back, he
thought “she was just kind of being like oh, no, like, like you
should do it . . . like kind of like teasing [him], like egging [him]
on.” Eddington’s defense to the charges was that Emily, after the
fact, regretted the consensual sexual activity the two had engaged
in and was worried about the judgment of her roommates.
Counsel argued in closing,
[Emily’s] living with these roommates, the female
roommates, all the roommates were there, all the
roommates were aware that [Eddington] spent the
night. . . . [I]t was unusual for anyone to have a sleep
over, that’s not something that was usually done,
that wasn’t something that was basically acceptable
20180597-CA 6 2023 UT App 19State v. Eddington
behavior in this house. Her roommates and—and
certainly, we do know that there was a lot, by—by
both people’s account, . . . there was a lot of sexual
conduct that occurred that night. Her roommates, in
this case, are not going to judge her, at least as soon
as she says I’m a victim, I’m a victim in this case, . . .
I did not agree to what happened, he spent the night
against my will, all the sexual behavior that
happened was against my will and by saying that
I’m a victim, then she doesn’t have to deal with the
idea that she crossed any of her own boundaries, the
boundaries of her roommates.
¶13 At the close of the State’s case, Eddington moved for a
directed verdict on all the aggravated charges, arguing that the
State had failed to prove the aggravation elements relating to
threats of serious bodily injury or harm with a weapon: “No overt
or verbal threat was actually made in this case. . . . [J]ust the fact
that there was a weapon that was mentioned by [Eddington] that
was out in the car, not accessible and never referenced as a threat
is simply not enough to sustain aggravated charges, either with
respect to the sexual assaults or the kidnapping.” The trial court
denied the motion.
¶14 The parties submitted their requested jury instructions
prior to trial. Eddington requested that the jury be instructed on
the lesser included offense of sexual battery on each of the three
counts of aggravated sexual assault, and the State requested that
the jury be instructed on the lesser included offenses of forcible
sodomy on Count 1, rape on Count 2, and object rape on Count 3.
The court instructed the jury on each of these offenses. Eddington
did not object to the State’s request for instructions on the lesser
included offenses and did not ask the court to direct a verdict with
respect to any of the lesser included offenses. Ultimately, the jury
acquitted Eddington of the aggravated sexual assault and
aggravated kidnapping charges, as well as most of the lesser
included offense charges. However, it found him guilty of two of
20180597-CA 7 2023 UT App 19State v. Eddington
the lesser included offense charges: one count of sexual battery
(with respect to Count 2, alleging sexual intercourse) and one
count of object rape (with respect to Count 3, alleging digital
penetration). Eddington did not raise any post-trial motions
challenging the jury’s verdict.
¶15 Eddington appealed his convictions and requested that
this court remand the matter pursuant to rule 23B of the Utah
Rules of Appellate Procedure to develop the record with respect
to ineffective assistance of counsel. Eddington alleged that
Counsel performed deficiently by failing to seek the admission of
and confront Emily with certain evidence relating to her prior
sexual activity and certain details of the sexual encounter between
the two. Eddington asserted that this evidence (1) was not barred
by rule 412 and (2) was relevant to the element of Eddington’s
mens rea as to consent. We granted the rule 23B motion.
¶16 Following remand and an evidentiary hearing, the district
court determined that Counsel was aware of certain evidence in
advance of trial. Specifically, the court found that Counsel knew
that Emily told Eddington she had previously invited men into
her bedroom; had previously engaged in sexual activity,
including intercourse and oral sex; and was protected from
pregnancy through her use of birth control. The district court also
found that from Eddington’s police interview, Counsel knew that
during the alleged attack, according to Eddington, Emily had
asked him to perform oral sex on her, coached him on a sexual
position, consoled him when he expressed religious guilt about
what they had done, told him she had been told she was good at
performing oral sex, and told him she had climaxed during their
encounter. 4 Emily confirmed most of this information at the
4. The evidence of Emily’s statements regarding her use of birth
control does not appear in Eddington’s police interview
transcript, nor is Emily’s alleged request for oral sex clearly
articulated. The statements also do not appear in the exhibit of
redacted portions provided to the rule 23B court, although there
(continued…)
20180597-CA 8 2023 UT App 19State v. Eddington
remand hearing, although she testified that she did not remember
whether she told Eddington about her prior experiences
performing oral sex. 5 However, she explained that the reason she
asked for oral sex, coached Eddington about the sexual position,
consoled him regarding his religious guilt, and told him she had
climaxed was to redirect him to less painful activities and “to
please him” because she was “scared.” She also testified that had
she been asked about her statements at trial that she was not “that
kind of girl,” she would have clarified that she was not the sort of
person who takes someone to her room or engages in sexual
activity on a first date.
¶17 Counsel testified at the rule 23B hearing, and the district
court recited some of her testimony in its findings. Counsel
expressed regret about not seeking the admission of or using the
evidence listed above to cross-examine Emily because she “felt
like . . . it would have been a different outcome” if she could have
questioned Emily about the details of the encounter. She
explained that although she “focused on” only the “two pieces of
evidence” to which she believed Emily’s testimony opened the
door—that she had previously invited men to her room and that
she had previously engaged in sexual activity—“‘looking back
now’ . . . ‘in hindsight,’ she should have and would have proffered
the additional items of . . . evidence that she had at trial.”
However, Counsel admitted that she had been focused on other
things happening at trial and was not “thinking of all of the
evidence that [she] had available.” Although she acknowledged
are additional redacted portions that were not included in the rule
23B transcript exhibit. Thus, it is unclear whether Counsel became
aware of this evidence from the unredacted transcript or learned
about it from Eddington.
5. Counsel testified at the remand hearing that she knew from
Eddington’s police interview that Emily had “described to him
that she gave very good blow jobs and that she took pride in that.”
But this statement had been redacted from the transcript that was
given to the jury.
20180597-CA 9 2023 UT App 19State v. Eddington
that some of the information was presented to the jury through
Eddington’s police interview, Counsel opined that “it would have
been dramatically different had it come in through [Emily].”
(Quotation simplified.)
ISSUES AND STANDARDS OF REVIEW
¶18 Eddington now appeals and presents three issues for our
consideration. First, he asserts that the evidence admitted at trial
was insufficient to support the jury’s verdict convicting him of the
lesser included offenses of sexual battery and object rape in light
of the fact that the jury acquitted him of the aggravated charges
and the other lesser included charges. We will uphold a jury
verdict as long as “some evidence exists from which a reasonable
jury could find that the elements of the crime had been proven
beyond a reasonable doubt.” State v. Maestas, 2012 UT 46, ¶ 177,
299 P.3d 892 (quotation simplified). However, “a defendant must
raise the sufficiency of the evidence by proper motion or objection
to preserve the issue for appeal.” State v. Prater, 2017 UT 13, ¶ 27,
392 P.3d 398 (quotation simplified). And “[w]hen a party fails to
raise and argue an issue in the trial court, it has failed to preserve
the issue, and an appellate court will not typically reach that issue
absent a valid exception to preservation.” State v. Johnson, 2017 UT
76, ¶ 15, 416 P.3d 443.
¶19 Eddington next claims that the trial court erred in limiting
Counsel’s cross-examination of Emily by ruling that Emily’s
testimony had not opened the door to the admission of certain
evidence regarding Emily’s sexual history. “When reviewing a
trial court’s decision to limit cross-examination, we review the
legal rule applied for correctness and the application of the rule to
the facts of the case for an abuse of discretion.” State v. Vigil, 2013
UT App 167, ¶ 8, 306 P.3d 845 (quotation simplified). “If that
review convinces us that an error has occurred, we must then
determine whether, assuming that the damaging potential of the
cross-examination had been fully realized, we are convinced that
the error was harmless beyond a reasonable doubt.” State v.
20180597-CA 10 2023 UT App 19State v. Eddington
Marks, 2011 UT App 262, ¶ 11, 262 P.3d 13 (quotation simplified),
superseded on other grounds by statute as stated in State v. Steffen, 2020
UT App 95, 468 P.3d 568.
¶20 Eddington lastly asserts that he received constitutionally
ineffective assistance of counsel because, though much of the
evidence elicited at the rule 23B hearing was known to Counsel
prior to the trial and some of that evidence was introduced to the
jury through Eddington’s redacted police interview, Counsel did
not seek to use any of that evidence to impeach Emily during
cross-examination or to support Eddington’s motion that Emily’s
testimony opened the door to allow Counsel to impeach her with
evidence of her sexual past. “In ruling on an ineffective assistance
claim following a rule 23B hearing, we defer to the trial court’s
findings of fact . . . .” State v. Arriaga, 2012 UT App 295, ¶ 11, 288
P.3d 588 (quotation simplified). But we “must decide whether the
defendant was deprived of the effective assistance of counsel as a
matter of law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d
587 (quotation simplified).
ANALYSIS
I. Sufficiency of the Evidence
¶21 Eddington argues that there was insufficient evidence for
the jury to find him guilty of the lesser included offenses of object
rape and sexual battery “in light of” the fact that it acquitted him
of the aggravated sexual assault crimes and the other lesser
included offenses. But Eddington did not properly preserve this
issue for appellate review.
¶22 Eddington maintains that because the jury acquitted him
of aggravated sexual assault, forcible sodomy, rape, and
aggravated kidnapping, the State’s non-consent evidence must
have been insufficient to support his convictions on sexual battery
20180597-CA 11 2023 UT App 19State v. Eddington
and object rape. 6 Eddington acknowledges that he did not
preserve a sufficiency challenge before the trial court regarding
the lesser included offenses—he moved for a directed verdict only
on the aggravation elements relating to the threats of serious
injury or harm with a weapon. Nevertheless, he asks us to excuse
his failure to preserve the issue under the exceptional
circumstances doctrine, which allows an appellate court to review
an unpreserved issue when “a rare procedural anomaly has either
prevented an appellant from preserving an issue or excuses a
failure to do so.” State v. Johnson, 2017 UT 76, ¶ 29, 416 P.3d 443(quotation simplified).
¶23 Eddington argues that “a rare procedural anomaly exists”
because “[t]here seems to be no logical procedural means to
properly ‘preserve’ a sufficiency of the evidence argument to a
verdict of guilt upon lesser-included offenses, until after the
verdict.” However, Eddington’s argument presupposes that
whether sufficient evidence supports conviction of a lesser
included offense must be analyzed in conjunction with the jury’s
acquittal on the greater offense. But this is not the case. To accept
Eddington’s exceptional-circumstances argument here—that he
6. Eddington alternates in his brief between referring to this
argument as a sufficiency-of-the-evidence challenge and referring
to it as an inconsistent-verdict challenge, perhaps because the
standard for assessing an inconsistent-verdict challenge rests, to a
large degree, on an assessment of whether the evidence adduced
at trial supports a rational determination of guilt on the charges
upon which the defendant was convicted. See State v. LoPrinzi,
2014 UT App 256, ¶ 30, 338 P.3d 253 (explaining that “so long as
sufficient evidence supports each of the guilty verdicts, state
courts generally have upheld . . . convictions” in the face of an
inconsistent verdict challenge (quotation simplified)). Although
his briefing is not entirely clear on this point, we interpret him as
making an insufficiency-of-the-evidence claim in which he asserts
that the evidence supporting the guilty verdicts must be
insufficient given the jury’s arguably inconsistent acquittals on
some of the other charges.
20180597-CA 12 2023 UT App 19State v. Eddington
was not able to challenge the sufficiency of the evidence on the
lesser included offenses prior to the verdict because he did not
know until after the verdict was returned that the jury did not
believe Emily’s claims of non-consent—we would have to agree
that Eddington had no opportunity to raise a sufficiency challenge
to the elements of the lesser included offenses. But we do not
agree with that premise. Instead, we view Eddington’s challenge
to the State’s evidence of non-consent as a traditional sufficiency-
of-the-evidence challenge that must be raised in the trial court and
preserved for appeal. See State v. Darnstaedt, 2021 UT App 19, ¶ 21,
483 P.3d 71 (“To preserve an issue for appeal, a defendant must
lodge a timely and specific objection in the district court.”
(quotation simplified)), cert. denied, 496 P.3d 716 (Utah 2021).
¶24 Here, the evidence required to prove lack of consent with
respect to the lesser included offenses was the same or less 7 than
that needed to prove consent as to the greater offenses. Yet
Eddington did not raise a directed-verdict motion with respect to
consent on any of the charges—his motion was directed only to
the aggravating factors that were an element of the aggravated
charges. Indeed, a directed-verdict motion with respect to consent
would have been futile, on this record, because the State
introduced evidence that Emily did not consent to the sexual
intercourse or digital penetration: Emily’s testimony at trial that
she told Eddington “no” at least twenty times during the
encounter is clearly sufficient evidence “from which a reasonable
jury” could find lack of consent “beyond a reasonable doubt.” See
State v. Gonzalez, 2015 UT 10, ¶ 27, 345 P.3d 1168 (quotation
simplified); see also State v. Hamilton, 2003 UT 22, ¶ 41, 70 P.3d 1117. With respect to the three aggravated charges and the lesser
included offenses of forcible sodomy, rape, and object rape, the
jury was instructed that Eddington had to have “acted with intent,
knowledge or recklessness that [Emily] did not consent.” With
respect to the lesser included offense of sexual battery, the jury
was instructed that the elements required proof that Eddington
“knew or should have known [his actions] would likely cause
affront or alarm to” Emily.
20180597-CA 13 2023 UT App 19State v. Eddington
(explaining that the inquiry is whether “the evidence and all
inferences that can be reasonably drawn from it” is capable of
supporting a finding of guilt beyond a reasonable doubt); State v.
Escobar-Florez, 2019 UT App 135, ¶ 60, 450 P.3d 98 (“Evidence is
sufficient when, viewed in the light most favorable to the State,
there exists some evidence from which a reasonable jury could
find that the elements of the crime had been proven beyond a
reasonable doubt.” (quotation simplified)), cert. denied, 458 P.3d
98 (Utah 2020).
¶25 The fact that there is no procedural means to challenge the
sufficiency of the evidence after the verdict is not problematic
because a verdict does not change the posture of a sufficiency of
the evidence claim—whether evidence is “capable of supporting
a finding of guilt beyond a reasonable doubt,” Hamilton, 2003 UT
22, ¶ 41 (quotation simplified), is not an inquiry that changes “in
light of” a jury’s verdict. Moreover, that Counsel chose to pursue
a defense strategy that included requesting that the jury be
instructed on the lesser included offense of sexual battery does
not appear to present a rare procedural anomaly that warrants an
exception to the preservation requirement. 8 Indeed, this strategy
appears to be a reasonable one. See generally State v. Hull, 2017 UT
8. In addition to asserting that Eddington failed to preserve his
insufficiency claim, the State also argues that—at least with
respect to the sexual battery conviction—Eddington invited any
error by asking the trial court to give a jury instruction regarding
sexual battery. We acknowledge the strength of the State’s
argument in this regard. See State v. Reece, 2015 UT 45, ¶ 22, 349
P.3d 712 (stating that “a defendant’s right to a lesser included
offense instruction is limited by the evidence and only justified
where there is a rational basis for a verdict acquitting the
defendant of the offense charged and convicting him of the
included offense” (quotation simplified)). But we need not reach
the merits of this argument in light of the fact that Eddington
failed to preserve any challenge to the sufficiency of the evidence
on the lesser included offenses and in light of our conclusion that
none of the exceptions to our preservation doctrine apply here.
20180597-CA 14 2023 UT App 19State v. Eddington
App 233, ¶¶ 16–17, 414 P.3d 526 (“[R]equesting a lesser-included-
offense instruction is within counsel’s strategic discretion . . . .”).
Thus, Eddington cannot establish that exceptional circumstances
precluded him from preserving an argument that the evidence of
consent on the lesser included offenses was insufficient, and we
therefore do not consider the merits of his unpreserved challenge
on appeal. See Johnson, 2017 UT 76, ¶ 15.
II. Cross-Examination and Opening the Door
¶26 Eddington next claims that the trial court exceeded its
discretion in limiting his cross-examination of Emily, arguing that
Emily and the prosecutor opened the door to the introduction of
certain evidence—that would otherwise be inadmissible under
rule 412 of the Utah Rules of Evidence—about Emily’s previous
sexual activity. We agree with Eddington.
¶27 We see no problem—and the parties have not argued
otherwise—with the trial court properly entering a pretrial
order consistent with Utah’s rape shield rule. See Utah R.
Evid. 412. But the court exceeded its discretion in using
this pretrial ruling to act not as a shield—as the rule intends—but
as a sword and an excuse to allow the prosecution and its
witness to state or infer facts the court had already ruled could
not come before the jury. The protections of rule 412 are to be
realized only when the prosecution and its witnesses also
continue to abide by the same restrictions they have asked the
trial court to impose on the defendant. This court anticipated
and warned of a situation like this in State v. Marks, 2011 UT
App 262, 262 P.3d 13: “Because Utah’s rape shield law
excludes otherwise relevant and admissible evidence, the
prosecutor must be careful not to abuse the protection
afforded by the [rule] by implying that the victim is more
sexually pure than the facts suggest. A false innuendo raised by
the prosecution may constitute a waiver of the rape shield.” Id.
¶ 73 (quoting with approval R. Collin Mangrum & Dee Benson,
Mangrum & Benson on Utah Evidence 233 (2009–2010 ed.)),
20180597-CA 15 2023 UT App 19State v. Eddington
superseded on other grounds by statute as stated in State v. Steffen, 2020
UT App 95, 468 P.3d 568. 9
¶28 We find the reasoning of other jurisdictions persuasive on
this point. In State v. Williams, 487 N.E.2d 560 (Ohio 1986) (per
curiam), the alleged victim “testified on direct examination . . . she
did not have sex with men because she was ‘gay.’” Id. at 560–61.10
In response, the defendant proffered testimony that “directly
refute[d] this contention.” Id. at 563. The Ohio Supreme Court
determined the proffered testimony advanced by the defendant
was admissible—even within the context of the state’s rape shield
law—because it served the “important purpose” of “negat[ing]
the implied establishment of [the consent] element of the crime
9. Courts often note that rape shield laws should act only as a
shield and not as a sword. See People v. Watkins, No. 180973, 1997
WL 33354322, at *2 n.2 (Mich. Ct. App. Jan. 28, 1997) (per curiam)
(“The prosecutor cannot use the rape shield law both as a shield
and a sword.”); Commonwealth v. Spiewak, 617 A.2d 696, 702 (Pa.
1992) (stating that the rape shield law “cannot be both shield and
sword”); McCullum v. Commonwealth, No. 2003-SC-001009-MR,
2006 WL 436107, at *13 (Ky. Feb. 23, 2006) (“The line of
demarcation between the right to confrontation and the rape
shield rule is crossed when the shield becomes a sword.”
(quotation simplified)); Commonwealth v. Reed, 644 A.2d 1223, 1231
(Pa. Super. Ct. 1994) (“The rape shield law was intended to be a
shield not a sword.” (quotation simplified)); Mitchell v. Class, 524
N.W.2d 860, 864 (S.D. 1994) (warning that where a rape shield
ruling is used as a sword, “it may become a two-edged sword
requiring a new trial”).
10. We recognize that there was some dispute in Williams about
whether the record supported the finding that the victim actually
testified that the reason she did not consent to sexual intercourse
with the defendant was that she had a preference for women. See
487 N.E.2d 560, 565 n.3 (Ohio 1986) (per curiam). But we find this
case persuasive for its reasoning, not for the accuracy of its
specific facts.
20180597-CA 16 2023 UT App 19State v. Eddington
charged.” Id. “For this reason,” the court concluded, “the
probative value of the testimony outweigh[ed] any interest the
state has in exclusion.” Id. Of note for our purposes, the court
found, “It is significant that the state first elicited the testimony
which inferred lack of consent. Had [the defendant] initiated this
inquiry, he would be bound by the victim’s answer.” Id. Because
the “exclusion of testimony to refute [the victim’s] assertion
regarding her sexual preference [did] not relate to the statutory
goal of insulating a rape victim from an invasion of her sexual
privacy when the victim herself raise[d] the issue,” the victim
“waived the protection of the rape shield law.” Id. at 564 (Wright,
J., concurring).
¶29 In Commonwealth v. Spiewak, 617 A.2d 696 (Pa. 1992), a
defendant was charged with “involuntary deviate sexual
intercourse” 11 committed against his fifteen-year-old
stepdaughter. Id. at 697. The prosecution had introduced evidence
that the complainant had told her boyfriend that she had
experienced oral sex with an older man when she was under the
age of sixteen, inferring that the experience was with only one man
and that man was her stepfather. Id. at 698–99. But the
complainant had also given prior sworn testimony in a separate
proceeding that an older man—who was a friend of her
stepfather—had induced her to have oral sex by offering her
cocaine when she was under sixteen. Id. The defendant—who
admitted to having engaged in sexual activity with the
complainant but insisted that it occurred after she had turned
sixteen—argued that the complainant’s “prior sworn testimony
concerning similar conduct,” id. at 697, was not barred by the rape
11. At the time, Pennsylvania defined deviate sexual intercourse
as oral or anal sexual intercourse between unmarried persons. See
18 Pa. Const. Stat. § 3101 (1988). The relevant Pennsylvania statute
established that “[a] person commits a felony of the first degree
when he engages in deviate sexual intercourse with another
person . . . who is less than 16 years of age.” Commonwealth v.
Spiewak, 617 A.2d 696, 697 n.1 (Pa. 1992); see also 18 Pa. Const. Stat.
§ 3123 (1988) (defining involuntary deviate sexual intercourse).
20180597-CA 17 2023 UT App 19State v. Eddington
shield law, because it was offered not “to show any general moral
turpitude or defect of the complainant, but because it raised
doubts about the truthfulness, the accuracy, and the weight to be
afforded her testimony on the present charge[],” id. at 699. The
trial court did not allow the prior sworn testimony to be broached
on cross-examination, saying that doing so was “absolutely
precluded” by the rape shield law. Id. at 698.
¶30 The Pennsylvania Supreme Court agreed with the
defendant on appeal, noting that the rape shield law “does not act
to prohibit relevant evidence which may exculpate a defendant of
the crime with which he is charged.” Id. at 699. Significantly, the
court observed that the prosecution “exploited” and “took unfair
advantage of the exclusion of the prior sworn testimony” to
“promot[e] the inference that there was only one older man”—the
stepfather. Id. at 701. The court observed,
The combined effect of this conduct by the
Commonwealth was to raise the issue of the
[complainant’s] social and sexual relationships and
use it to advance an inference that the [complainant]
confided to [her boyfriend] that she had
experienced oral intercourse with the [defendant]
prior to her sixteenth birthday. Once the
Commonwealth anchored an incident of oral
intercourse with an older man prior to [the
complainant’s sixteenth birthday], it then became
even more critical to permit [the defendant] to argue
a contrary inference relating to that relationship.
The [rape shield] statute cannot be both shield and
sword. Here a statute is so designed to protect the
witness’s interest in preventing prejudicial
disclosure of the witness’s past behavior. It cannot
at the same time preclude a defendant from offering
evidence which is so highly probative of the
witness’s credibility that such evidence is necessary
20180597-CA 18 2023 UT App 19State v. Eddington
to allow/permit a jury to make a fair determination
of the defendant’s guilt or innocence. The statute
must yield to a defendant’s basic constitutional
right.
Id. at 701–02.
¶31 And in State v. Cannon, 776 A.2d 736 (N.H. 2001), the
defendant argued that the trial court erred in excluding testimony
regarding a complainant’s prior consensual sexual activity. Id. at
737. While the defendant acknowledged that such testimony was
generally “inadmissible under the rape shield doctrine,” he
argued that the complainant “opened the door to the admission
of [the] testimony when she testified that the reason she did not
want to have sex with the defendant was because she had a
boyfriend.” Id. The defendant sought to call a witness who would
testify that the complainant had consensual sex with another man,
who was not her boyfriend, just a few weeks before and in
circumstances very similar to the charged incident of sexual
assault. Id. at 738.
¶32 The New Hampshire Supreme Court agreed with the
defendant, id. at 737, noting that “[w]hile normally evidence of the
complainant’s sexual history would be excluded pursuant to the
rape shield doctrine, the prosecution opened the door to the
admissibility of [the] testimony when it asked the complainant
why she pushed the defendant’s hands away and told him ‘No.’”
Id. at 738. It further explained,
She had no obligation to explain her reasoning for
not consenting; however, once she did so at the
request of the State, the defendant was entitled to
present evidence to refute her assertion. The central
issue in this case was whether the complainant
consented to having sexual intercourse with the
defendant. The complainant’s testimony [that she
did not consent because she had a boyfriend] served
only to bolster her credibility regarding the issue of
20180597-CA 19 2023 UT App 19State v. Eddington
consent. In such a circumstance, the defendant is
entitled to rebut this assertion because the probative
value of the proffered evidence would outweigh its
prejudicial effect on the victim.
Id. at 739 (quotation simplified). In other words, the complainant’s
prior sexual activity was not relevant to whether she consented to
later sexual activity until the prosecution made it relevant by
asking her why she refused the defendant’s sexual advances.
Thus, it was not the prior sexual activity, standing alone, that was
relevant. Rather, it was when the prosecution used that prior
sexual activity to provide a basis for asserting a lack of consent on
a later occasion that it became relevant. Once the prosecution
opened that door, the defendant had the right to rebut the
assertion with testimony to the contrary.
¶33 Here, during his opening statement, the prosecutor stated
that Eddington “held [Emily] prisoner and then he took whatever
he wanted: he took her body, he took her virtue, he took her will.”
Then, during her direct testimony, in response to the State’s
question about why she wanted to watch the movie in the
living room, Emily testified that she was “not the kind of girl that
invites guys into [her] bedroom.” A few minutes later, in response
to a question about what she said during the attack, Emily
responded that she told Eddington that she did not want him to
fondle and kiss her breasts because “that wasn’t the person [she]
was” and that she asked Eddington to stop kissing her lower back
and buttocks because she “didn’t want that, that’s not who [she
is].”
¶34 Prior to cross-examining Emily—and to correct what
Counsel alleged was a false impression about Emily’s chastity and
to impeach Emily’s claim of non-consent—Counsel argued that
Emily’s statements about the kind of person she was opened the
door to admission of evidence of specific instances of her prior
sexual behavior. Specifically, Counsel requested that she be
allowed to ask Emily whether she had invited men to her
20180597-CA 20 2023 UT App 19State v. Eddington
bedroom on previous occasions and whether she had previously
engaged in sexual intercourse. Counsel explained that Emily had
told Eddington “about two long-term boyfriends [with whom]
she had engaged in both oral sex and intercourse.” The trial court
refused to allow Counsel to ask Emily questions about inviting
men to her bedroom or having sexual relations on other occasions
because that information in the context of rule 412 was
“insufficiently probative to outweigh the highly prejudicial effect
of its introduction at trial.”
¶35 On appeal, Eddington argues that the trial court’s
application of rule 412 to prohibit him from questioning Emily
about inviting men to her bedroom on prior occasions and about
her sexual past violated his constitutional rights. The United
States Constitution guarantees a criminal defendant “a
meaningful opportunity to present a complete defense” to
criminal charges. Crane v. Kentucky, 476 U.S. 683, 690 (1986)
(quotation simplified). This right emanates from the right of
confrontation, the right to compulsory process, and the right to
due process. See State v. Thornton, 2017 UT 9, ¶ 74, 391 P.3d 1016;
see also Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (“The rights
to confront and cross-examine witnesses . . . have long been
recognized as essential to due process.”). Nevertheless, a
defendant’s constitutional right to present a complete defense is
not absolute and “may, in appropriate cases, bow to
accommodate other legitimate interests in the criminal trial
process” and thus allow a trial judge to limit cross-examination
“based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’[s] safety, or
interrogation that is repetitive or only marginally relevant.”
Michigan v. Lucas, 500 U.S. 145, 149 (1991) (quotation simplified);
see also Thornton, 2017 UT 9, ¶ 76 (“[T]he Sixth Amendment right
to present a defense is far from absolute.”). Thus, both the United
States Supreme Court and the Utah Supreme Court have
recognized that a defendant’s right to present evidence is subject
to reasonable restrictions that limit the presentation of otherwise
admissible evidence. See United States v. Scheffer, 523 U.S. 303, 308
(1998).
20180597-CA 21 2023 UT App 19State v. Eddington
¶36 Rule 412 is an example of Utah’s recognition that the
defendant’s right to present evidence may be limited to
accommodate the interests of an alleged victim of sexual assault.
The rule generally prohibits the introduction, in certain criminal
cases, of any evidence of a victim’s past sexual behavior or sexual
predisposition. See Utah R. Evid. 412(a)(1)–(2). 12
¶37 But the rule itself recognizes exceptions, and evidence of a
victim’s prior sexual history is admissible under the rule if its
“exclusion would violate the defendant’s constitutional rights” to
a fair trial. Utah R. Evid. 412(b)(3). Such violation occurs “only
when the exclusion is arbitrary or disproportionate to the
purposes that rule 412 was designed to serve” because “the
application of rule 412 significantly undermine[s] fundamental
elements of a defendant’s defense.” State v. Steffen, 2020 UT App
12. Rule 412 states that evidence offered to prove that “a victim
engaged in other sexual behavior” or has a certain “sexual
predisposition” “is not admissible in criminal . . . proceedings
involving alleged sexual misconduct.” Utah R. Evid. 412(a)(1)–(2).
Rape shield rules like Utah’s were adopted in response to
anachronistic and sexist views that a woman who had consented
to sexual activity in the past was more likely to have consented to
sexual relations with an alleged rapist. See State v. Marks, 2011 UT
App 262, ¶ 15, 262 P.3d 13 (recognizing “that in most instances,
an alleged victim’s prior sexual conduct is simply not relevant to
the issue of whether a rape or sexual assault has occurred”),
superseded on other grounds by statute as stated in State v. Steffen, 2020
UT App 95, 468 P.3d 568. The protections in the rape shield laws
acknowledge that inquiries into the irrelevant sexual history of a
victim are not only prejudicial and embarrassing but also a
practical barrier to many victims reporting sexual crimes. See Utah
R. Evid. 412, advisory committee note (1994); see also State v.
Tarrats, 2005 UT 50, ¶ 20, 122 P.3d 581 (noting that the rape shield
laws were adopted “to ensure that sexual assault victims are not
deterred from participating in prosecutions because of the fear of
unwarranted inquiries into [their] sexual behavior” (quotation
simplified)).
20180597-CA 22 2023 UT App 19State v. Eddington
95, ¶ 17, 468 P.3d 568 (quotation simplified). “It is not enough to
show that [rule 412] excludes favorable evidence.” Thornton, 2017
UT 9, ¶ 77 (quotation simplified). Rather, the defendant must
prove “that the evidence in question is essential to the
presentation of a defense” and that “the state’s interest in
enforcing its rules of evidence is disproportionate to the weighty
interest of the accused.” Id. ¶ 78 (quotation simplified). In other
words, rule 412 cannot be applied mechanistically to prevent the
defendant from effectively challenging the truthfulness of the
alleged victim when both she and the prosecution have made her
sexual past relevant. A defendant’s confrontation right is violated
if a court prohibits a defendant “from engaging in otherwise
appropriate cross-examination designed to show a prototypical
form of bias on the part of the witness, and thereby to expose to
the jury the facts from which jurors could appropriately draw
inferences relating to the reliability of the witness.” Delaware v.
Van Arsdall, 475 U.S. 673, 680 (1986) (quotation simplified); see also
State v. Clark, 2009 UT App 252, ¶ 16, 219 P.3d 631.
¶38 Here, the trial court excluded the evidence of Emily’s
sexual history because it determined that the probative value of
that evidence did not outweigh the possible harm to Emily or the
fact-finding process. Specifically, the court found that such
evidence was “ordinarily insufficiently probative to outweigh the
highly prejudicial effect of its introduction at trial.” But after the
prosecutor’s statement regarding virtue and Emily’s multiple
statements concerning “who” she is in a sexual context, the
situation at trial was no longer ordinary. The proverbial door had
been opened. We are especially troubled by the State’s
representation in its opening statement that Eddington “took
[Emily’s] virtue.” 13 We determine that, in this circumstance, the
13. The prosecutor claimed that his reference to Eddington taking
Emily’s virtue did not mean taking her virginity, explaining, “[I
used] it in a broader sense of when you sexually assault a woman,
you’re taking her virtue. It’s a—it’s a common religious term and
it is a—a common religious usage of the term.” But the inference
(continued…)
20180597-CA 23 2023 UT App 19State v. Eddington
trial court exceeded its discretion in categorically disallowing
Counsel from asking Emily further questions about her sexual
past when Emily made statements that implicated her veracity as
to her sexual disposition as colored by the State’s reference to
Emily’s virtue being taken. Accordingly, we conclude that the
trial court’s ruling was outside the bounds of reasonableness. The
prosecutor’s reference to Emily’s virtue being taken and Emily’s
direct reference to her sexual disposition together made
Eddington’s proffered evidence especially probative. In contrast,
we discern no significant prejudice where the need to rebut the
statement or inference was generated by the prosecutor and the
witness themselves. 14
¶39 As in many sexual assault cases, there were only two
witnesses to the events that evening. Given that Emily was the
main witness at trial and the disputed issue was consent, her
credibility was critical to the State’s case. Eddington argues that
Emily’s testimony that she was not the type of person who invited
men into her bedroom or let men fondle her breasts or kiss her
lower back and buttocks left the jury with a false impression. We
agree. Counsel’s proffered questions were not aimed at attacking
Emily’s morality or offered to imply that a sexual assault victim
suggested by the use of the word “virtue” is certainly that Emily
had no prior sexual experience, and we find it hard to imagine
that the jury interpreted the prosecutor’s statement in any other
way.
14. This circumstance of “opening the door” is a corollary to the
“principle of curative admissibility,” which “provides that a party
who interjects into a case inadmissible evidence cannot complain
on appeal that [their] adversary subsequently offered and was
permitted to introduce the same kind of evidence.” See State v.
Guerro, 2021 UT App 136, ¶ 29, 502 P.3d 338 (quotation
simplified); see also State v. Mahi, 2005 UT App 494, ¶ 17, 125 P.3d
103 (“A party cannot introduce potentially inflammatory
evidence and then later complain when the opposing party
attempts to rebut it.”).
20180597-CA 24 2023 UT App 19State v. Eddington
who has a sexual past should be viewed as less credible than a
victim who has no prior sexual history. Rather, Counsel requested
that she be allowed to ask Emily about having men in her room
and whether she had engaged in sexual intercourse in the past to
rebut the misimpression created by the prosecution that Emily
had no sexual past—an inference that was not factually correct. 15
See generally State v. Martin, 2002 UT 34, ¶ 33, 44 P.3d 805 (stating
that where the central issue at trial was whom to believe about the
circumstances of the sexual contact, evidence relevant to
challenge credibility should be admitted). Under these
circumstances, the trial court’s limitation on Eddington’s
constitutional right to cross-examine Emily exceeded its
discretion.
¶40 Though we determine the trial court erred in limiting
cross-examination, this does not end our inquiry, as certain
constitutional errors can be “harmless” in terms of their effect on
the fact-finding process at trial. See Chapman v. California, 386 U.S.
15. We acknowledge our supreme court’s statement in State v.
Boyd, 2001 UT 30, 25 P.3d 985, that “[t]here is no exception in rule
412 that allows for the admission of past sexual conduct to
impeach witnesses,” id. ¶ 38 n.4, but we agree with this court’s
previous understanding of that pronouncement:
[T]he footnote merely reflects the supreme court’s
agreement with the advisory committee notes that
rule 412 presumptively excludes evidence of the
complainant’s prior sexual activity, even if such
evidence is offered for impeachment purposes. . . .
There is nothing in the supreme court’s decision in
Boyd, however, that suggests evidence offered for
impeachment purposes must be categorically
excluded if to do so would violate the defendant’s
constitutional rights.
State v. Marks, 2011 UT App 262, ¶ 45, 262 P.3d 13, superseded on
other grounds by statute as stated in State v. Steffen, 2020 UT App 95,
468 P.3d 568.
20180597-CA 25 2023 UT App 19State v. Eddington
18, 24 (1967) (holding that a constitutional error may be held
harmless if the error “was harmless beyond a reasonable doubt”);
see also Van Arsdall, 475 U.S. at 681 (“The harmless-error doctrine
recognizes the principle that the central purpose of a criminal trial
is to decide the factual question of the defendant’s guilt or
innocence and promotes public respect for the criminal process by
focusing on the underlying fairness of the trial rather than on the
virtually inevitable presence of immaterial error.” (citation
omitted)); see also State v. Vigil, 2013 UT App 167, ¶ 11, 306 P.3d
845. In other words, violations of the right of cross-examination
do not require reversal if the State can show beyond a reasonable
doubt that the error did not contribute to the verdict. See State v.
Farnworth, 2018 UT App 23, ¶ 24, 414 P.3d 1053 (“Where the error
in question amounts to a violation of a defendant’s right of
confrontation guaranteed by the Sixth Amendment to the United
States Constitution, its harmfulness is to be judged by a higher
standard, i.e., reversal is required unless the error is harmless
beyond a reasonable doubt. Under this standard, the burden
shifts to the State to demonstrate that the error was harmless
beyond a reasonable doubt.” (quotation simplified)). Whether an
error is harmless beyond a reasonable doubt depends on a host of
factors, including “the importance of the witness’[s] testimony in
the prosecution’s case, whether the testimony was cumulative, the
presence or absence of evidence corroborating or contradicting
the testimony of the witness on material points, the extent of
cross-examination otherwise permitted, and, of course, the overall
strength of the prosecution’s case.” Van Arsdall, 475 U.S. at 684; see
also State v. Drommond, 2020 UT 50, ¶ 105, 469 P.3d 1056.
¶41 Here, Emily was, of course, the key prosecution witness to
the facts supporting the charged crimes. “In this sense, her
testimony was of ultimate importance.” See Vigil, 2013 UT App
167, ¶ 14. The State argues that any error in precluding cross-
examination on Emily’s sexual past was harmless because she
gave reasonable explanations for those statements at the remand
hearing and those explanations would have rehabilitated her
testimony in the eyes of the jury. That is, as stated by the State,
had she been asked at trial, Emily would have clarified that,
20180597-CA 26 2023 UT App 19State v. Eddington
“[y]es, she had men in her bedroom before, and yes, she had
[engaged in sexual intercourse] with some of them; but those
were all steady boyfriends, which Eddington was not,” and
“[w]hat she meant by the ‘not that kind of girl’ testimony is
that she wasn’t the sort who brought men up to her room for sex
on a first date.” But in our view, the damaging potential of the
cross-examination was that the evidence that Emily had a sexual
past would have flatly contradicted the prosecutor’s virtue
statement made in opening. Given the importance of Emily’s
testimony and credibility to the strength of the State’s case,
Eddington should have been allowed to present this evidence to
the jury so that it could fully assess Emily’s credibility. See
generally State v. J.A.L., 2011 UT 27, ¶ 42, 262 P.3d 1 (“A rape case
where the sole issue at trial is consent presents a unique
circumstance not present in many other rape trials. In consent
cases, physical evidence is often sparse, and few, if any witnesses
are able to aid the jury in evaluating the subjective mindset of the
parties to the encounter. Indeed, many of these cases hinge on a
he-said-she-said credibility contest between the alleged
perpetrator and the victim.”). Accordingly, Emily’s explanations
about her statements do not render the error harmless beyond a
reasonable doubt. 16
¶42 Ultimately, there was absolutely no reason that Emily’s
past sexual behavior was relevant to the case until the State made
it relevant. Emily was under no obligation to reveal anything
about her sexual experiences with others, and both the State and
Eddington were precluded by the court’s pre-trial order from
introducing any of that information at trial. But the prosecutor’s
statements and Emily’s responses to questions on direct
examination opened the door to Eddington having the right to
rebut the inference that Emily was not the kind of a person who
would engage in sexual behavior. By asserting that Eddington
16. Moreover, as further explained in Part III, we also determine
that Counsel was ineffective for failing to seek the admission of
and to question Emily about certain other evidence, which
provides an independent basis for reversal.
20180597-CA 27 2023 UT App 19State v. Eddington
took Emily’s “virtue,” the State implied that Eddington’s account
of events was unbelievable, especially after Emily added that she
was not the type of person who invited men into her bedroom. So
while Emily’s sexual history should have been entirely irrelevant
to this case, its use by the State prejudiced Eddington by leading
the jury to believe it was relevant. See Commonwealth v. Reed, 644
A.2d 1223, 1231 (Pa. Super. Ct. 1994). And had Counsel been
allowed to ask Emily about her sexual past, we cannot foreclose
the likelihood that such information might have injected doubt
into the prosecution’s case. At the end of the day, if the State
“wants to keep [a rape victim’s] past out of the case, it must do
exactly that.” See id. That, after all, is the very purpose of the rape
shield rule. It recognizes that a person’s sexual history is of no
relevance—except in very limited circumstances—to a later
sexual assault. We encourage prosecutors to respect this
boundary by avoiding the temptation to misuse a protection for
rape victims as an instrument against the accused.
III. Ineffective Assistance of Counsel
¶43 Eddington next asserts that Counsel rendered
constitutionally ineffective assistance by failing to seek the
admission of and to question Emily about certain evidence known
to Counsel at the time of trial that was partly admitted through
Eddington’s redacted police interview and phone call and further
adduced at the rule 23B hearing. To prevail on an ineffective
assistance of counsel claim, Eddington must show both that
Counsel’s performance was deficient, in that it “fell below an
objective standard of reasonableness,” and that this deficient
performance “prejudiced the defense” such that “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
See Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); accord
State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350; State v. Ray, 2020 UT
12, ¶ 24, 469 P.3d 871. “A defendant must satisfy both parts of this
test in order to successfully establish ineffective assistance.” State
v. Whytock, 2020 UT App 107, ¶ 26, 469 P.3d 1150.
20180597-CA 28 2023 UT App 19State v. Eddington
¶44 Counsel’s performance is deficient when it falls “below an
objective standard of reasonableness.” Strickland, 466 U.S. at 688;
Scott, 2020 UT 13, ¶ 28. Here, Eddington first argues that Counsel
performed deficiently by failing to cross-examine Emily with
some of the evidence that was introduced to the jury through
Eddington’s redacted police interview and phone call. Eddington
also argues that Counsel performed deficiently by failing to argue
that certain other evidence known to Counsel about Emily and the
sexual encounter—evidence that was further adduced at the rule
23B hearing—was admissible because such evidence was intrinsic
to the sexual encounter between Emily and Eddington and was
relevant to whether Emily consented and to Eddington’s
knowledge of Emily’s lack of consent. 17
¶45 Eddington first argues that Counsel performed deficiently
by failing to cross-examine Emily about certain claims that
Eddington made during his police interview and recorded phone
call: that during their encounter, Emily coached Eddington on
how to rub his penis between her breasts and ejaculate; that Emily
told Eddington that she was climaxing during their encounter;
and that Emily consoled Eddington when he expressed religious
guilt about what they had done and told him it was “not a big
deal.” Eddington also argues that Counsel should have sought to
cross-examine Emily about other similar evidence known to
Counsel at the time of trial and that was further elicited at the rule
23B hearing to impeach Emily: that during their encounter, Emily
asked Eddington to perform oral sex on her, and when he did not,
17. To the extent that Eddington also asserts on appeal that
Counsel performed deficiently by not arguing that the evidence
that Emily told him she had previously invited men into her
bedroom and that she had engaged in sexual activity with a
previous boyfriend was admissible under rule 412 as intrinsic
evidence offered by Eddington to prove that Emily did in fact
consent, we do not need to reach this argument on its merits in
light of our conclusion, in the previous section, that Emily’s
previous sexual experience was admissible to rebut the State’s
(and Emily’s) misimpression that Emily had no such experience.
20180597-CA 29 2023 UT App 19State v. Eddington
she asked why; that Emily told Eddington that “I’ve been told I
give very good blow jobs”; and that Emily told Eddington that he
did not need to worry about getting her pregnant because she was
using birth control. Eddington argues that this evidence was
admissible to impeach Emily’s claim that the sexual activity was
non-consensual and to show Eddington did not have knowledge
of Emily’s non-consent.
¶46 We agree with Eddington that Counsel performed
deficiently in failing to question Emily about this evidence. Unlike
direct questioning about Emily’s sexual past, this evidence did not
fall within the prohibitions of rule 412 because it was not evidence
of “other sexual behavior” or evidence of Emily’s “sexual
predisposition.” See Utah R. Evid. 412(a). To the contrary, this was
information about things that happened—both statements and
actions—during the specific sexual encounter between Emily and
Eddington, and it therefore falls squarely within one of rule 412’s
exceptions. See id. R. 412(b)(2) (stating that a court “may admit . . .
evidence of specific instances of a victim’s sexual behavior with
respect to the person accused of the sexual misconduct, if offered
by the defendant to prove consent”). This information arguably
suggested the activity was consensual, and we conclude it was
unreasonable for Counsel not to ask about this evidence, or at
least attempt to do so. Specifically, evidence that Emily advised
Eddington she was protected from pregnancy, coached him on
how to perform a particular sex act, requested oral sex, indicated
she had climaxed, and advised him that his religious-based
remorse was “no big deal” may have changed the evidentiary
picture on the issue of non-consent. In fact, Counsel herself
expressed regret, stating that “looking back now” and “in
hindsight,” she should have and would have asked Emily about
these statements and believed that “had the jury heard those
things, it would have been a different outcome.” Indeed, at the
remand hearing Counsel opined that “it would have been
dramatically different had [this evidence] come in through
[Emily].” (Emphasis added.)
20180597-CA 30 2023 UT App 19State v. Eddington
¶47 As to prejudice, the questioning Eddington asserts Counsel
should have undertaken at trial addressed evidence that was
relevant to Eddington’s understanding of Emily’s consent, and
some of it also corroborated his version of events as recounted in
his police interview. With respect to the object rape charge, the
jury was required to find that Eddington “acted with intent,
knowledge or recklessness that [Emily] did not consent,” and
with respect to the sexual battery charge, the jury was required to
find that he “knew or should have known” his conduct “would
likely cause affront or alarm” to Emily. Because Eddington’s state
of mind was an element of the crimes for which he was convicted,
evidence relating to his state of mind was highly probative.
Additionally, Emily’s confirmation of these details of Eddington’s
version of events—that she was the one directing him what to
do—could have strengthened his statements to the detective and
led the jury to determine that he had a reasonable belief that Emily
consented to the sexual activity. At the remand hearing, Emily
confirmed that the statements and actions discussed above
occurred. Although Emily also provided explanations for many
of her actions, asserting that she did them out of fear or to redirect
Eddington to less painful activities, her confirmation
corroborated certain details of Eddington’s version of events and
provided support for his defense that the sexual activity was
consensual. While that evidence certainly did not negate the
contrary evidence altogether, it was the jury’s prerogative to
weigh all the evidence and make a determination regarding
whether Eddington had the required mental state to commit the
crimes in question.
¶48 Because the evidence was highly probative with respect to
the issues of consent and Eddington’s intent, and especially in
light of the trial court’s erroneous decision not to allow cross-
examination about Emily’s sexual history after the State opened
the door, it was unreasonable for Counsel not to highlight the
evidence or seek to question Emily during cross-examination to
undercut her credibility. Moreover, we consider it reasonably
probable that having heard Emily’s corroboration of many of the
details of Eddington’s account, the jury would have had a
20180597-CA 31 2023 UT App 19State v. Eddington
reasonable doubt regarding Eddington’s intent with respect to
consent. 18 Thus, we conclude that Eddington received ineffective
assistance of counsel and is therefore entitled to a new trial.
CONCLUSION
¶49 We decline to review Eddington’s challenge to the
sufficiency of the evidence because it is unpreserved and no
preservation exception applies. We further conclude that the trial
court exceeded its discretion in limiting Eddington’s cross-
examination of the alleged victim. Additionally, Counsel
rendered ineffective assistance by not seeking to cross-examine
Emily about some of the details of the encounter. Accordingly, we
vacate Eddington’s convictions and remand for a new trial.
18. The State maintains that because some of the evidence in
question came in through Eddington’s redacted police interview,
asking Emily about the evidence “would have been cumulative.”
But we agree with Eddington that there is a material difference
between hearing the accused claim these details to be true in an
interview and having them confirmed by the alleged victim. Even
though Emily may have been able to explain why she requested
certain things or went along with them, her confirmation that
those activities occurred could have increased Eddington’s
credibility in the eyes of the jury, and the jury should have heard
about this from Emily herself.
20180597-CA 32 2023 UT App 19