State v. Lowther

AMENDED OPINION*
This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 34
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Petitioner,
v.
JOHN MARCUS LOWTHER,
Respondent.
No. 20150803
Filed June 19, 2017
On Certiorari to the Utah Court of Appeals
Third District, Salt Lake
The Honorable Randall N. Skanchy
No. 111900725
Attorneys:
Sean D. Reyes, Att’y Gen., Tera J. Peterson, Asst. Solic. Gen.,
Salt Lake City, for petitioner
Edward J. Stone, Salt Lake City, for respondent
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM, JUSTICE HIMONAS, and
JUDGE CONNORS joined.
Having recused himself, JUSTICE PEARCE did not participate herein;
SECOND DISTRICT COURT JUDGE DAVID M. CONNORS sat.
* The court has rewritten paragraph 30 and footnotes 39 and 40.
STATE v. LOWTHER
Opinion of the Court
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶ 1 This case requires us to determine whether the doctrine of
chances’ four foundational requirements, outlined in State v. Verde,1
apply to both rule 403 and rule 404(b) of the Utah Rules of Evidence.
The court of appeals concluded that Verde’s foundational
requirements displaced the factors set forth in State v. Shickles2 for
purposes of a rule 403 balancing test.3 As discussed below, the court
of appeals erred. In applying rule 403, a court is not required to
consider any set of factors or elements, but is bound by the language
of the rule. In this case, the district court did not abuse its discretion
by failing to consider the Verde requirements. It did, however, abuse
its discretion by mechanically applying the Shickles factors to assess
the probative value of the State’s rule 404(b) evidence. We therefore
affirm the court of appeals’ ultimate conclusion that the district
court’s evidentiary ruling was erroneous, but under different
reasoning. As defendant John Marcus Lowther has ultimately
prevailed on appeal, he is entitled to withdraw his guilty plea.
Background
¶ 2 This case deals with the alleged rape or object rape of four
women: A.P., C.H., C.R., and K.S. Each woman has identified Mr.
Lowther as her attacker, and the State has filed charges against him
for each alleged crime. After the district court severed the cases, the
State elected to try Mr. Lowther first on the charge of raping K.S.
And in prosecuting that case, the State moved to introduce the
testimony of the other women under rule 404(b) of the Utah Rules of
Evidence and the doctrine of chances in order to show that K.S. did
not consent to sexual intercourse with Mr. Lowther. After an
evidentiary hearing, the district court granted the State’s motion. Mr.
Lowther entered a conditional guilty plea to the rapes of K.S. and
C.H., in exchange for the State’s agreement to dismiss the charges
regarding A.P. and C.R. His plea reserved the right to challenge the
district court’s decision to admit the testimony of A.P., C.H., and
C.R. Mr. Lowther filed a timely appeal, and the court of appeals
concluded that the district court erred in its application of the
doctrine of chances and in its decision to admit the testimony of A.P.
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1 2012 UT 60, 296 P.3d 673.
2 760 P.2d 291 (Utah 1988).
3 State v. Lowther, 2015 UT App 180, ¶ 22, 356 P.3d 173.
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Opinion of the Court
We granted certiorari to determine whether the court of appeals
properly applied the doctrine of chances. As answering this question
depends on knowledge of the underlying case, we first describe the
factual background and then describe the procedural history of this
case. We begin with testimony regarding the alleged rape at issue,
K.S.’s, and then describe the testimony of the other three witnesses
the State sought to introduce under the doctrine of chances.4
The Alleged Rape of K.S.
¶ 3 On September 23, 2010, 20-year-old K.S. and her friend, S.H.,
attended a movie premier. Before going to the movie, K.S. consumed
“two or three shots worth” of vodka. During the movie, she also
drank “a couple sips” of alcohol from a friend’s flask. After the
movie, K.S. and S.H. went to the Red Lion Hotel, and while there,
K.S. started, but did not finish, a beer. After about an hour, K.S. and
S.H. were tired. K.S. decided to stay the night at S.H.’s home, which
she had done on previous occasions. Neither woman felt comfortable
driving, so K.S. called her friend Aaron to pick them up and drive
them to S.H.’s house.
¶ 4 Aaron and two other men arrived at about 1:30 or 2:00 a.m.
in a car driven by Mr. Lowther. K.S. had met Mr. Lowther on a
previous occasion through a mutual friend. On the drive home,
Mr. Lowther insisted on taking the male passengers home first. He
then drove K.S. and S.H. to S.H.’s house and, upon arriving, K.S.
immediately went downstairs into a basement bedroom and climbed
into bed. Still upstairs, Mr. Lowther asked S.H. if he could stay the
night. At first she told him no, but eventually she made up a bed on
the couch for him. She then joined K.S. in the basement bedroom to
sleep. Soon thereafter, Mr. Lowther entered the bedroom and asked
S.H. if he could lie between them. She told him no but he climbed in
anyway and soon began touching S.H.’s breasts and vagina over her
clothes. She pushed him away, got out of bed, and went upstairs.
¶ 5 K.S. was still sleeping during this time, but she eventually
awoke to find Mr. Lowther’s penis “inside” her. He was lying
behind her and holding her down by reaching across her body to
grab her wrist. She pushed him away and, after a brief struggle, left
the room. She went to the police station later that day and reported
the rape. The police had K.S. go to the hospital for a forensic sexual
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4 The facts in this case are taken from testimony offered at the
preliminary hearing and the evidentiary hearing.
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STATE v. LOWTHER
Opinion of the Court
assault examination, and Mr. Lowther’s DNA was matched to the
detected semen.
The Alleged Rape of A.P.
¶ 6 On December 1, 2009, 17-year-old A.P. and her boyfriend
attended a party at a home in Draper, Utah. Mr. Lowther also
attended the party. Throughout the night, A.P. consumed
approximately eight shots of vodka in a two-hour period. She
became highly intoxicated and began to vomit. Her boyfriend
escorted her into a basement computer room where she could lie
down. While in the computer room, she continued to vomit and
passed in and out of consciousness. Her boyfriend eventually left to
buy her some Sprite and food from a store.
¶ 7 Sometime after A.P.’s boyfriend left, Mr. Lowther entered
the room. At some point, the door was locked from the inside. When
A.P. awoke, she told Mr. Lowther that she was sick and that her
boyfriend had gone to the store for her. After this brief exchange, she
lost consciousness. When she next awoke, Mr. Lowther was lying at
her side and “dry humping” her. She told him “no” twice, but again
lost consciousness. When she awoke the third time, Mr. Lowther was
on top of her with his penis inside her. She repeatedly told him to
stop and tried to “fight him off,” but he held her down. She again
lost consciousness. When she eventually awoke, her “pants were at
[her] ankles” and Mr. Lowther was lying next to her naked. She got
up and left the room.
The Alleged Rape of C.H.
¶ 8 Nearly two months later, on February 14, 2010, 18-year-old
C.H. and her roommate held a party at their apartment. A mutual
friend invited Mr. Lowther, whom C.H. had never met. C.H.’s
boyfriend also attended the party. Throughout the night those in the
apartment drank beer, and between 8:00 p.m. and 5:00 a.m., C.H.
drank ten to fifteen beers, becoming “very intoxicated.”5 At some
point during the evening, she broke up with her boyfriend.
Afterward, Mr. Lowther became “sympathetic” and tried to comfort
her.
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5 When asked at the preliminary hearing to identify her level of
intoxication on a scale of one to ten—one being barely intoxicated
and ten being intoxication requiring hospitalization—C.H. placed
herself at a seven or eight.
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Opinion of the Court
¶ 9 At about 5:00 a.m., C.H. went to her bedroom and either fell
asleep or blacked out. Four guests, including Mr. Lowther, were still
in the living room. Sometime thereafter, she awoke to find Mr.
Lowther naked and “having sex” with her. She told him to stop and
tried “as hard” as she could for several minutes to push him off.
After she struggled two or three minutes, he finally got up and left
the room. C.H. went into her roommate’s bedroom, which adjoined
her own, and called the police. After performing a sexual assault
examination, the police were unable to recover any semen.
The Alleged Object Rape of C.R.
¶ 10 Approximately five months later, on July 19, 2010, 20-year-
old C.R. and her boyfriend invited Mr. Lowther and another friend
to their apartment for drinks. C.R.’s boyfriend had been friends with
Mr. Lowther for over a year. The group drank vodka, and C.R.
became “fairly intoxicated,” having had five or six shots.6 Her
boyfriend and Mr. Lowther drank more vodka than her, and before
she went to bed, she saw Mr. Lowther lying on her counter throwing
up into the sink.
¶ 11 Sometime after C.R. and her boyfriend went to bed, she
awoke to find Mr. Lowther sitting on top of her legs, reaching up
through one leg of her shorts, and penetrating her vagina with his
fingers. She kicked him off with her legs and told him to “go home.”
He immediately left, and she reported the assault to police two
months later when she learned that her best friend—K.S.—had also
been raped by Mr. Lowther.
Proceedings Below
¶ 12 The State filed an information that included charges for the
rapes of A.P., C.H., and K.S., and a charge for the object rape of C.R.
The information also charged Mr. Lowther with two counts of
forcible sexual abuse of S.H., but those charges were eventually
dropped because S.H. would not cooperate in the prosecution. After
the State filed the information, Mr. Lowther moved to sever the rape
counts from each other and from the object rape count, and the
district court granted the motion.
¶ 13 The State chose to first try Mr. Lowther for the rape of K.S.
and filed notice under rule 404(b) of the Utah Rules of Evidence of its
intent to introduce the testimony of A.P., C.H., and C.R. It argued
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6 She placed her level of intoxication between five and six on a
scale from one to ten at the time she went to bed.
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STATE v. LOWTHER
Opinion of the Court
that the victims’ testimony regarding Mr. Lowther’s prior bad acts
would be admissible under the doctrine of chances, adopted by this
court in State v. Verde,7 to show that K.S. did not consent to sexual
intercourse with Mr. Lowther.8
¶ 14 That doctrine “is a theory of logical relevance that ‘rests on
the objective improbability of the same rare misfortune befalling one
individual over and over.’”9 Evidence of prior bad acts is admissible
under the doctrine of chances only if four foundational requirements
are satisfied: (1) materiality, (2) similarity, (3) independence, and (4)
frequency.10 The State relied on this doctrine to show that it is
objectively improbable that K.S. consented to sexual intercourse
where three other witnesses have alleged that Mr. Lowther raped
them in a manner similar to the way in which he allegedly raped K.S.
¶ 15 After an evidentiary hearing, the district court concluded
that the “introduction of the [testimony of A.P., C.H., and C.R.]
against Mr. Lowther [was] offered for a proper, non-character
purpose, namely the ‘doctrine of chances.’” After assessing the
evidence under 404(b), the district court applied the Shickles factors
to conduct rule 403’s balancing test. Those factors aid courts in
applying rule 403. Specifically, they encourage courts to look to
[1] the strength of the evidence as to the commission of
the other crime, [2] the similarities between the crimes,
[3] the interval of time that has elapsed between the
crimes, [4] the need for the evidence, [5] the efficacy of
alternative proof, and [6] the degree to which the
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7 2012 UT 60, 296 P.3d 673.
8 The State’s initial rule 404(b) motion was submitted before this
court had announced the doctrine of chances in State v. Verde. As
such, the motion argued that the evidence was admissible to prove
intent, modus operandi, lack of accident or mistake, and plan, as
well as the victims’ lack of consent. But after this court announced
the doctrine of chances, the State filed a supplemental brief in
support of its initial rule 404(b) motion to seek admission of the
witnesses’ testimony under the doctrine of chances to prove lack of
consent.
9 Verde, 2012 UT 60, ¶ 47 (citation omitted).
10 Id. ¶¶ 57–61.
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Opinion of the Court
evidence probably will rouse the jury to overmastering
hostility.11
Relying solely on these factors, the court concluded that “even
taking into consideration the potential for prejudice, . . . the
probative value of introducing the [testimony] outweigh[ed] the
degree to which it might rouse the jury.”
¶ 16 Mr. Lowther appealed, and the court of appeals affirmed the
district court’s holding regarding 404(b). But it concluded that the
district court’s “strict adherence to Shickles [was] misplaced” as those
factors may have “misdirected its rule 403 analysis, causing it to
focus on the ‘limited list of considerations outlined in Shickles’
instead of focusing on the ‘text of rule 403.’”12 Relying on its own
precedent, the court of appeals ultimately concluded that in cases
involving the doctrine of chances, Verde’s four foundational
requirements displace the Shickles factors. And in applying Verde to
rule 403, the court of appeals concluded that “A.P.’s testimony
encourages a verdict on an improper basis and should have been
excluded by the [district] court.”13 As to C.H.’s and C.R.’s testimony,
it “remand[ed] the case for further proceedings” under the Verde
factors and “without consideration of A.P.’s testimony.”14 The State
appealed, and we granted certiorari. We have jurisdiction under
Utah Code section 78A-3-102(3)(a).
Standard of Review
¶ 17 We granted certiorari on whether the majority of the panel
of the court of appeals erred in applying and delineating the scope of
this court’s decision in State v. Verde15 with respect to the doctrine of
chances. We review the court of appeals’ decision for correctness.16
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11 State v. Shickles, 760 P.2d 291, 295–96 (Utah 1988) (citation
omitted). As discussed below, infra ¶ 45 n.81, the district court
applied these factors before State v. Lucero, 2014 UT 15, 328 P.3d 841,
and State v. Cuttler, 2015 UT 95, 367 P.3d 981, clarified the proper
application of the Shickles factors.
12State v. Lowther, 2015 UT App 180, ¶ 25, 356 P.3d 173 (citation
omitted).
13 Id. ¶ 32.
14 Id. ¶ 34.
15 2012 UT 60, 296 P.3d 673.
16 See id. ¶ 13.
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STATE v. LOWTHER
Opinion of the Court
And “[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.”17 The appropriate
standard of review for a district court’s decision to admit or exclude
evidence is “abuse of discretion.”18 A district court abuses its
discretion when it admits or excludes “evidence under the wrong
legal standard.”19 “[W]hether the district ‘court applied the proper
legal standard’ in assessing the admissibility of . . . evidence is a
question of law that we review for correctness.”20 If the district court
applied the correct legal standard, it abuses its discretion only when
“its decision to admit or exclude evidence ‘is beyond the limits of
reasonability.’”21
Analysis
¶ 18 The primary issue before us is whether the court of appeals
erred in articulating and applying the doctrine of chances. That court
upheld the district court’s analysis of rule 404(b),22 but ultimately
concluded that the district court erred when it applied State v.
Shickles23 to conclude that the witnesses’ testimony was admissible
under rule 403.24 Specifically, the court of appeals held that the
district court should have looked to the four foundational
_____________________________________________________________
17 Id. (first alteration in original).
18 State v. Cuttler, 2015 UT 95, ¶ 12, 367 P.3d 981.
19 Id.
20 Id. (citation omitted).
21 Id. (citation omitted).
22 State v. Lowther, 2015 UT App 180, ¶¶ 19–20, 356 P.3d 173
(upholding “the trial court’s conclusion that the scenarios described
by C.R., A.P., and C.H. were sufficiently similar to the scenario
described by K.S. to satisfy the similarity prong of the [doctrine of
chances] test,” but declining to “consider the trial court’s analysis of
. . . the materiality, frequency, and independence factors in Verde’s
doctrine of chances” because Mr. Lowther failed to address those
issues on appeal).
23 760 P.2d 291 (Utah 1988).
24Lowther, 2015 UT App 180, ¶ 25 (“Given this court’s decision . . .
to interpret Verde as replacing Shickles, the trial court’s strict
adherence to Shickles here is misplaced.” (citation omitted)).
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Opinion of the Court
requirements articulated in State v. Verde25 in conducting a rule 403
balancing test.26
¶ 19 On appeal, Mr. Lowther does not directly address the court
of appeals’ rule 404(b) or 403 analyses as they relate to the doctrine
of chances. Instead, he argues that application of the doctrine of
chances is premature in this case because he has not made a charge
of fabrication. He also argues that under the plain language of rule
403 the risk of unfair prejudice substantially outweighs the probative
value of the witnesses’ testimony concerning past bad acts, thereby
precluding admission of the testimony.
¶ 20 The State, in contrast, directly engages the court of appeals’
application of the doctrine of chances. In particular, it argues that the
court of appeals erred in concluding that the district court should
have considered Verde’s four foundational requirements—
materiality, similarity, independence, and frequency—in conducting
its analysis of the evidence under rule 403. The State argues that the
probative value of the testimony offered by A.P., C.H., and C.R. is
not substantially outweighed by the risk of unfair prejudice.
¶ 21 As discussed below, we disagree with Mr. Lowther. The
doctrine of chances is not limited to rebutting claims of fabrication,
and application of the doctrine in this case is not premature. As to
the issue of whether the court of appeals erred in concluding that a
court must rely on the doctrine of chances in performing both a
404(b) analysis and a 403 analysis, we agree with the State. Verde’s
foundational requirements assess whether a body of prior bad acts
evidence is being employed for a proper, non-character statistical
inference. And in performing a rule 403 balancing test, a court is not
bound by these foundational requirements. Though we conclude
that the court of appeals erred in requiring the district court to rely
on Verde’s foundational requirements in applying rule 403, we
nevertheless hold that the court of appeals was ultimately correct to
conclude that the district court abused its discretion by relying solely
on the Shickles factors when applying rule 403 and admitting the
testimony of A.P., C.H., and C.R. We address each issue in turn.
_____________________________________________________________
25 2012 UT 60, 296 P.3d 673.
26 Lowther, 2015 UT App 180, ¶ 25.
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STATE v. LOWTHER
Opinion of the Court
I. The Doctrine of Chances Is Not Limited to Rebutting
Claims of Fabrication
¶ 22 Mr. Lowther argues that the doctrine of chances is limited to
cases in which a defendant claims that the complaining witness has
fabricated her testimony. Because he has not claimed that K.S. has
fabricated her testimony, he argues that application of the doctrine in
this case was premature and therefore the State’s 404(b) evidence
should not have been admitted. We reject these arguments.
¶ 23 In State v. Verde, we noted that the doctrine of chances
“defines circumstances where prior bad acts can properly be used to
rebut a charge of fabrication.”27 We did not, however, limit the
doctrine to cases involving claims that a witness was fabricating her
testimony. In fact, we discussed several scenarios where the doctrine
was employed to rebut defenses based on mistake, coincidence, and
accident.28 Since Verde, the court of appeals has affirmed the use of
the doctrine to rebut lack of intent as a defense.29 Accordingly, the
doctrine of chances is not limited to cases where the defendant
accuses a complaining witness of fabricating her testimony, as
Mr. Lowther contends.
¶ 24 In this case, the State argued to the district court that the
testimony of A.P., C.H., and C.R. was “necessary to show intent to
engage in sexual activity without the victims’ consent, lack of
accident or mistake, and a modus operandi of waiting until the
victims were incapable of resisting due to intoxication or lack of
consciousness,” and the district court ruled the evidence admissible
under the doctrine of chances. Mr. Lowther challenges that
conclusion, arguing that our decision in Verde shows that where
intent is not in “bona fide dispute,” evidence should not be admitted
under rule 404(b).
¶ 25 But this argument fails to recognize the differences between
this case and Verde. In this case, the issues of consent, a component
of actus reus in a rape charge, and mens rea, are both in “bona fide
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27 2012 UT 60, ¶ 47, 296 P.3d 673.
28 Id. ¶¶ 48–50.
29See State v. Lomu, 2014 UT App 41, ¶ 25, 321 P.3d 243 (affirming
a district court’s decision to admit evidence of a prior “practically
identical” armed robbery to rebut the defendant’s claim that he did
not know that his companions planned to use a gun in the crime).
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Opinion of the Court
dispute.”30 To prove actus reus, the State must prove that Mr. Lowther
had sex with K.S. without her consent. Though the fact that Mr.
Lowther and K.S. had sex may not be in bona fide dispute because his
semen was discovered on her, the question of whether she consented
is contested. The doctrine of chances, if its requirements are properly
met, is one tool the State may use to prove that K.S. did not consent
to sex with Mr. Lowther.
¶ 26 In addition, the State must prove mens rea. Unlike in Verde,
Mr. Lowther’s mental state at the time of the alleged rape of K.S. is in
bona fide dispute here. Mr. Lowther has not, as in Verde, offered to
stipulate to mens rea if the jury finds actus reus. Because the issues of
consent and mens rea are in bona fide dispute here,31 we are not faced
with the concerns discussed in Verde—specifically, we cannot say
that it seems “much more likely” that the prosecution seeks to admit
the testimony to “sustain[] an impermissible inference” that
Mr. Lowther “acted in conformity with the bad character suggested
by his prior bad acts”32 rather than to sustain the permissible
statistical inferences arising from the doctrine of chances.
¶ 27 Thus, the doctrine of chances is applicable to this case and it
was not applied prematurely.33 Below, we discuss more fully the
_____________________________________________________________
30 Verde, 2012 UT 60, ¶ 57 (citation omitted).
31 These disputes make this case different from Verde. In Verde,
the defendant’s offer to stipulate to intent undercut the State’s
arguments that the prior bad acts evidence was actually being
offered to prove intent. But in this case, Mr. Lowther has not made
an offer that if the jury finds “the [sexual intercourse with K.S.
without her consent] occurred, defendant [stipulates] that the
defendant did it [with the requisite mental state].” Id. ¶ 25. Even if
Mr. Lowther were to so stipulate—thereby restricting his defense to
lack of actus reus—the other witnesses’ testimony would still be
relevant to the issue of consent, and therefore admissible for that
purpose if the doctrine of chances requirements are met.
32 Id. ¶ 26 (“Where intent is uncontested and readily inferable from
other evidence, 404(b) evidence is largely tangential and duplicative. It
is accordingly difficult to characterize its purpose as properly aimed
at establishing intent.”(emphasis added) (footnote omitted)).
33 Mr. Lowther quotes Verde for the proposition that “[a] charge of
fabrication is insufficient by itself to open the door to evidence of any
and all prior bad acts.” Id. ¶ 55. As applied to his case, he “urges [us]
(Continued)
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STATE v. LOWTHER
Opinion of the Court
doctrine of chances and its relationship to the rules of evidence,
concluding that the doctrine does not require a district court to
consider any specific list of factors to assess the probative value of
evidence under rule 403 of the Utah Rules of Evidence.
II. Verde’s Four Foundational Requirements Do Not
Displace the Shickles Factors
¶ 28 Below, the court of appeals concluded that in the context of
the doctrine of chances State v. Verde’s34 four foundational
requirements have displaced State v. Shickles35 for purposes of a rule
403 balancing test.36 In response, the State argues that Verde’s
foundational requirements do not apply to rule 403 because “the
doctrine of chances is a theory of logical relevance that demonstrates
why the [prior bad acts] evidence is relevant to a proper, non-
propensity purpose under rule 404(b).” And because rule 403 does
not assess relevancy but balances the probative value of the evidence
against the risk of unfair prejudice, the State contends that “rule 403
concerns come into play only after the [district] court has determined
that the evidence is relevant and admissible under rule 404(b).”
to adopt a standard allowing admissibility under [the] doctrine of
chances if the charge of fabrication is about a witness’s testimony
regarding specific facts material and relevant to the pending case,
rather than a general attack on the witness’s credibility or character.”
Mr. Lowther misreads Verde. In context, we were rejecting the
court of appeals’ decision to affirm introduction of Mr. Verde’s prior
misconduct under a “vague notion of [the] doctrine of chances” and
“[w]ithout denominating the doctrine as such or elaborating on its
elements.” Id. ¶ 54. In other words, we reversed the court of appeals
in that case because it held Mr. Verde’s prior bad acts to be
admissible without analyzing the evidence under the doctrine of
chances. In remanding the case, we left it to the district court to
apply the doctrine of chances to determine whether his prior bad
acts were admissible to rebut the charge of fabrication. Id. ¶ 62.
34 2012 UT 60, 296 P.3d 673.
35 760 P.2d 291 (Utah 1988).
36 State v. Lowther, 2015 UT App 180, ¶ 25, 356 P.3d 173 (“Given
this court’s decision . . . to interpret Verde as replacing Shickles, the
trial court’s strict adherence to Shickles here is misplaced.” (citation
omitted)); see id. ¶¶ 25–29 (applying each of Verde’s foundational
requirements “to determine whether sufficient grounds for
admission exist here despite the court’s application of [Shickles]”).
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Opinion of the Court
¶ 29 As discussed below, we agree with the State. Verde’s
foundational requirements have not displaced the Shickles factors for
purposes of rule 403. We have repeatedly stated that courts are not
bound to any particular set of factors or elements when conducting a
rule 403 balancing test.37 And while Verde’s requirements may help a
court assess the probative value of prior bad acts evidence, we clarify
that in evaluating doctrine of chances evidence under rule 403, a
court may consider any relevant fact and need not necessarily
consider Verde’s foundational requirements or limit its analysis to
these requirements.
¶ 30 The Utah Rules of Evidence provide a framework for
distinguishing permissible uses of evidence from impermissible
uses. As a general matter, relevant evidence is admissible under the
rules.38 But “[e]vidence 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.”39 Such “evidence may be admissible for another purpose,
such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”40 In
addition, the evidence must meet the requirements of rule 403,
which provides that relevant evidence may be excluded if its
probative value is “‘substantially outweighed by the danger of
unfair prejudice.’”41
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37 See infra ¶ 34 n.54.
38 See UTAH R. EVID. 402.
39 UTAH R. EVID. 404(b)(1).
40 UTAH R. EVID. 404(b)(2). We note that we have at times
characterized rule 404(b) as being an “inclusionary” rule. See, e.g.,
State v. Decorso, 1999 UT 57, ¶ 24, 993 P.2d 837, abrogated on other
grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016. We take this
occasion to recognize the potential for confusion that could be sown
by this language. In some ways, describing the rule as “inclusionary”
may give the impression that evidence is presumed to be admissible.
To avoid confusion, we repudiate that characterization and look to
the plain language of rule 404(b) for the standard for the
admissibility of evidence: it does not carry with it an attendant
presumption of either admissibility or inadmissibility.
41 State v. Allen, 2005 UT 11, ¶ 24, 108 P.3d 730 (citation omitted).
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STATE v. LOWTHER
Opinion of the Court
¶ 31 In State v. Verde, we articulated the doctrine of chances
within the context of a 404(b) analysis. We described the doctrine as
“defin[ing] circumstances where prior bad acts can properly be used
to rebut a charge of fabrication,” mistake, coincidence, or accident.42
We further 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.’”43 As an example of the
doctrine’s application, we noted that
[w]hen one person claims rape, the unusual and
abnormal element of lying by the complaining witness
may be present. But when two (or more) persons tell
similar stories, the chances are reduced that both are
lying or that one is telling the truth and the other is
coincidentally telling a similar false story.44
In other words, the doctrine “starts with [a] low baseline
probability” that a certain event would occur and “considers the
effect on these already low probabilities of additional, similar
occurrences.”45 “At some point, ‘[t]he fortuitous coincidence
becomes too abnormal, bizarre, implausible, unusual or objectively
improbable to be believed.’”46
¶ 32 In articulating this doctrine, we set forth an elemental test.
Specifically, we noted that “[u]nder the doctrine of chances, evidence
. . . must not be admitted absent satisfaction of four foundational
requirements, which should be considered within the context of a
rule 403 balancing analysis.”47 Those four foundational requirements
are (1) materiality, (2) similarity, (3) independence, and (4)
frequency.48 When each of these requirements has been met, a court
should conclude that rule 404(b) has been satisfied regarding certain
_____________________________________________________________
42 2012 UT 60, ¶¶ 47–49 (emphasis added). While we have
examined the doctrine of chances in the context of “evidence offered
to prove actus reus,” id. ¶ 57, as explained above, it may also be
invoked to prove mens rea. See supra ¶ 26.
43 Id. ¶ 47 (emphasis added) (citation omitted).
44 Id. ¶ 48 (citation omitted).
45 Id. ¶ 49.
46 Id. (citation omitted).
47 Id. ¶ 57 (citation omitted).
48 Id. ¶¶ 57–61.
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prior bad acts evidence49 and proceed to assess the evidence under
rules 402 and 403.
¶ 33 As noted above, the court of appeals has interpreted Verde’s
directive to consider the four foundational requirements “within the
context of a rule 403 balancing analysis” to require application of the
requirements to rules 404(b) and 403.50 The court of appeals
perceived this interpretation to be in tension with then-controlling
precedent, State v. Shickles, where we articulated several factors
district courts should consider in conducting a rule 403 balancing
test. Specifically we noted that
In deciding whether the danger of unfair prejudice and
the like substantially outweighs the incremental
probative value, a variety of matters must be
considered, including [1] the strength of the evidence
as to the commission of the other crime, [2] the
similarities between the crimes, [3] the interval of time
that has elapsed between the crimes, [4] the need for
the evidence, [5] the efficacy of alternative proof, and
[6] the degree to which the evidence probably will
rouse the jury to overmastering hostility.51
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49Mr. Lowther argues that the “State seeks to use the doctrine of
chances” to “water[] down the analysis under” rules 404(b) and 403.
This argument is based on a requirement, found in our Nelson-
Waggoner line of cases, that district courts “scrupulously examine”
evidence to ensure that it was truly being offered for a non-character
purpose. The State disagrees that the doctrine of chances represents
a watering down. It contends that the requirements of the doctrine of
chances are, if anything, more stringent than the standard
scrupulous examination requirement. In any event, we need not
decide this issue because we have recently repudiated the
“scrupulous examination” requirement. See State v. Thornton, 2017
UT 9, ¶ 3, --- P.3d ---.
50 State v. Labrum, 2014 UT App 5, ¶¶ 26–27, 318 P.3d 1151
(quoting Verde, 2012 UT 60, ¶ 57).
51 760 P.2d 291, 295–96 (Utah 1988) (citation omitted). As
discussed below, in cases subsequent to Shickles, we have instructed
courts not to make a mechanical application of these factors but to
apply the text of rule 403. See State v. Lucero, 2014 UT 15, ¶ 32, 328
P.3d 841.
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The court of appeals has resolved that tension by concluding that
“[w]here the context involves a doctrine of chances analysis, we read
Verde as having displaced the Shickles factors—for purposes of
assessing the ‘probative value’ aspect of the rule 403 analysis—with
a focus on materiality, similarity, independence, and frequency.”52
Significantly, in this case, it recast Verde’s four foundational
requirements as “factors” for purposes of a rule 403 analysis.53
¶ 34 This interpretation of Verde and its relationship to rule 403 is
inconsistent with our recent decisions that have repudiated an
approach to rule 403 that ignores the text and mechanically applies a
set of factors.54 As such, suggesting that the Verde requirements have
displaced the Shickles factors in cases where the doctrine of chances
is involved—as the court of appeals has done—may lead courts to
conclude that they must “moor [their] rule 403 analysis entirely and
exclusively” to the Verde foundational requirements.55 We therefore
reject the court of appeals’ approach.
¶ 35 But we do not suggest that Verde’s foundational
requirements are irrelevant to the probative value of prior bad acts
evidence. The requirements may bear directly on such evidence’s
probative value. As noted above, Verde requires a court to consider
(1) materiality, (2) similarity, (3) independence, and (4) frequency.
First, under materiality, “[t]he issue for which the uncharged
_____________________________________________________________
52 Labrum, 2014 UT App 5, ¶ 28.
53 Lowther, 2015 UT App 180, ¶ 25 (“Thus, we will now consider
the trial court’s rule 403 analysis under the Verde factors[.]”).
54 See State v. Cuttler, 2015 UT 95, ¶ 18, 367 P.3d 981 (“[T]he
Shickles factors should not limit the considerations of a court when
making a determination of evidence’s admissibility under rule 403.
Instead, courts are ‘bound by the test of rule 403,’ and it is
‘unnecessary for courts to evaluate each and every [Shickles] factor’
in every context.” (citation omitted)); State v. Lucero, 2014 UT 15,
¶ 32, 328 P.3d 841 (“Since our decision in Shickles, a number of courts
have relied heavily on [its] list of factors in weighing evidence under
rule 403. . . . [C]ourts are bound by the text of rule 403, not the
limited list of considerations outlined in Shickles.”); see also Met v.
State, 2016 UT 51, ¶ 90, 388 P.3d 447 (repudiating the multi-factor test
outlined in precedent for determining whether an allegedly
gruesome photograph’s probative value is substantially outweighed
by the risk of unfair prejudice).
55 Cuttler, 2015 UT 95, ¶ 19.
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misconduct evidence is offered ‘must be in bona fide dispute.’”56 The
aim of this foundational requirement is to ensure “a careful
evaluation of the true—and predominant—purpose of any evidence
proffered under rule 404(b).”57
¶ 36 Second, under the similarity requirement, “the similarities
between the charged and uncharged incidents must be ‘sufficient to
dispel any realistic possibility of independent invention.’”58 This
foundational requirement aids in assessing the probative value of a
body of prior bad acts evidence. “[T]he more similar, detailed, and
distinctive the various accusations, the greater is the likelihood that
they are not the result of independent imaginative invention.”59 And
if they are not the result of independent imaginative invention, “the
likelihood that the defendant committed one or more of the actions
increases.”60
¶ 37 The third foundational requirement, independence,
recognizes that “the probative value of similar accusations evidence
rests on the improbability of chance repetition of the same event.”61
“Where the prior uncharged conduct is an accusation of sexual
assault, each accusation must be independent of the others” because
“the existence of collusion among various accusers would render
ineffective the comparison with chance repetition.”62 Where
witnesses are in collusion, the statistical significance of the multiple
false accusations fades and the probability that the defendant has
been falsely accused increases.
¶ 38 Finally, the fourth foundational requirement is frequency.
Under this requirement, “[t]he defendant must have been accused of
_____________________________________________________________
56 Verde, 2012 UT 60, ¶ 57 (citation omitted).
57 Id. ¶¶ 22, 25–27 (concluding that a not guilty plea was
insufficient to place the issue of a defendant’s intent in bona fide
dispute, especially where the defendant did not contest intent at trial
but based his defense on never having touched the genitalia of the
victim).
58 Id. ¶ 59 (citation omitted).
59 Id. ¶ 58 (alteration in original) (citation omitted).
60 Id. ¶ 49.
61 Id. ¶ 60 (citation omitted).
62 Id.
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Opinion of the Court
the crime or suffered an unusual loss ‘more frequently than the typical
person endures such losses accidentally.’”63 “It is this infrequency that
justifies the probability analysis under the doctrine of chances”
because “[g]iven the infrequent occurrence of false rape and child
abuse allegations relative to the entire eligible population, [the
probability] that the same innocent person will be the object of
multiple false accusations is extremely low.”64
¶ 39 Taken together, these foundational requirements operate
upon an entire body of prior bad acts evidence to determine whether
the evidence is being offered for purposes of a proper, non-character
statistical inference: the “objective improbability of the same rare
misfortune befalling one individual over and over.”65 And in making
that assessment, they also provide a preliminary measure of the
probative value of the evidence. The probative value of several
witnesses’ independent testimony of substantially similar events is
high, and the frequency of the occurrence of those events justifies a
404(b) statistical inference.
¶ 40 As such, the facts a court considers in connection with
Verde’s foundational requirements and rule 404(b) may have
relevance at the rule 403 stage. But a district court need not, as the
court of appeals suggests, cabin its rule 403 analysis solely to these
Verde requirements.66 It instead has discretion to consider any
relevant factors that assist in determining whether the “probative
value” of the witnesses’ testimony is “substantially outweighed by a
danger of . . . unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.”67 Thus, concluding that Verde displaces the
_____________________________________________________________
63 Id. ¶ 61 (citation omitted).
64 Id. (citation omitted).
65 Id. ¶ 47 (citation omitted).
66 We note that Verde’s foundational requirements are
requirements within the context of rule 404(b). A court must find
that each of the requirements has been satisfied to admit doctrine of
chances evidence for purposes of a proper, non-character statistical
inference. A court may consider, however, some of the same facts it
considered in connection with Verde’s foundational requirements for
purposes of a rule 403 balancing test. These considerations are not
requirements within the context of rule 403.
67 UTAH R. EVID. 403.
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Opinion of the Court
Shickles factors is inconsistent with our precedent and unnecessary
given the purpose of the doctrine of chances. As we have discussed,
Verde did not displace anything; the text of rule 403 is what controls,
not any particular set of factors.
¶ 41 We therefore reiterate that district courts are bound by the
language of rule 403 rather than any set of factors or elements. In
evaluating doctrine of chances evidence under rule 403, “courts may
consider many factors, including some of those we identified in
Shickles.”68 Further, to the extent a district court finds some of the
same facts it is asked to consider under Verde—facts that bear on the
similarity, independence, or frequency inquiries—useful in assessing
the probative value of evidence, it should feel free to take those facts
into account. In the end, we reemphasize that “courts are ‘bound by
the text of rule 403,’ and it is ‘unnecessary for courts to evaluate each
and every . . . factor’ in every context.’”69
¶ 42 As applied to this case, we hold that the court of appeals
erred in concluding that the Verde foundational requirements have
displaced the Shickles factors for purposes of rule 403. A court is
bound by the text of rule 403, and it is free to consider any relevant
factors when balancing the probative value of evidence against its
risk for unfair prejudice. Relying on this standard, we now look to
the court of appeals’ review of the district court’s application of rule
403 to this case, and we conclude that the district court abused its
discretion.
III. The Court of Appeals Correctly Concluded that the District Court
Improperly Applied Rule 403
¶ 43 As noted above, the court of appeals concluded that the
district court erred in limiting its rule 403 analysis solely to the
factors outlined in State v. Shickles,70 and held that it should have
instead focused on State v. Verde’s71 foundational requirements and
the text of rule 403.72 It then proceeded to “consider the [district]
court’s rule 403 analysis under the Verde factors . . . to determine
whether sufficient grounds for admission exist . . . despite the court’s
_____________________________________________________________
68 Cuttler, 2015 UT 95, ¶ 18.
69 Id. (citation omitted).
70 760 P.2d 291 (Utah 1988).
71 2012 UT 60, 296 P.3d 673.
72 State v. Lowther, 2015 UT App 180, ¶ 25, 356 P.3d 173.
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Opinion of the Court
application of [the Shickles factors].”73 Applying Verde, the court of
appeals concluded that the district court should not have admitted
A.P.’s testimony because it was not sufficiently similar to K.S.’s
testimony.74 It remanded for the district court to “reconsider C.R.’s
and C.H.’s testimonies under [Verde] and without consideration of
A.P.’s testimony.”75
¶ 44 Though the district court did not err in its failure to consider
Verde’s foundational requirements in the context of rule 403, we
agree with the court of appeals that its “application of Shickles
actually misdirected its rule 403 analysis, causing it to focus on the
‘limited list of considerations outlined in Shickles’ instead of focusing
on the ‘text of rule 403.’”76 The district court expressly noted that it
was “tasked with considering the Shickles factors” to perform a rule
403 balancing test. It then “moor[ed] its rule 403 analysis entirely and
exclusively to all of the Shickles factors.”77 Further, it did not rely on
the text of rule 403 to assess the risk of unfair prejudice, but focused
on the language in Shickles to assess “the degree to which [the 404(b)]
evidence . . . might rouse the jury to overmastering hostility.”78
¶ 45 We have expressly disavowed this type of mechanical
application of the Shickles factors and have concluded that “it is
inappropriate for a district court to ever consider whether evidence
will lead a jury to ‘overmastering hostility.’”79 A court must instead
bind its analysis to the text of rule 403, considering those factors that
_____________________________________________________________
73 Id.
74 Id. ¶ 27.
75 Id. ¶ 34.
76 Id. ¶ 25 (quoting State v. Lucero, 2014 UT 15, ¶ 32, 328 P.3d 84).
77 State v. Cuttler, 2015 UT 95, ¶ 19, 367 P.3d 981.
78 See Shickles, 760 P.2d at 296 (“[T]he degree to which the
evidence probably will rouse the jury to overmastering hostility.”
(citation omitted)).
79 Cuttler, 2015 UT 95, ¶ 20 (“Since the overmastering hostility
factor under Shickles is at best judicial gloss and at worst a substitute
test for evidence’s admissibility under rule 403, we now make clear
that it is inappropriate for a court to consider the overmastering
hostility factor in a rule 403 analysis.”).
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Opinion of the Court
are appropriate given the particular circumstances of the case.80 As
such, the district court applied the incorrect legal standard to rule
403, “[a]nd the admission or exclusion of evidence under the wrong
legal standard constitutes an abuse of discretion.”81 Thus, we
remand for the court to evaluate the State’s prior bad acts evidence
under the text of rule 403.
¶ 46 We understand the court of appeals’ concern regarding the
testimony of A.P. As noted above, the court of appeals concluded
that while A.P.’s testimony was sufficiently similar to K.S.’s
testimony for purposes of rule 404(b), the dissimilarities—the
presence of physical restraint and “extreme level of intoxication”—
“could be ‘particularly inflammatory relative to the instant crime.’”82
But unlike the court of appeals, we do not rule this evidence
inadmissible under rule 403. Instead we direct the district court to
focus generally on the extent to which the “tendency [of A.P.’s
testimony] to sustain a proper inference is outweighed by its
propensity for an improper inference or for jury confusion about its
_____________________________________________________________
80 See Lucero, 2014 UT 15, ¶ 32 (“[C]ourts are bound by the text of
rule 403, not the limited list of considerations outlined in Shickles.”).
81 Cuttler, 2015 UT 95, ¶ 12 (citation omitted). We note that the
district court’s mechanical application of Shickles is understandable
in this case because it ruled on the admissibility of A.P., C.H., and
C.R.’s testimony nearly two years before we decided State v. Lucero,
where we clarified that courts should not rely exclusively on the
Shickles factors but should instead focus on the text of rule 403. See
2014 UT 15. Although the district court performed the analysis that
was dictated by then-existing precedent, it nevertheless abused its
discretion because it applied a legal standard we have since
concluded is incorrect. For example, the district court quoted State v.
Killpack for the proposition that “[o]nly when evidence poses a
danger of ‘rous[ing] the jury to overmastering hostility’ does it reach
the level of unfair prejudice that rule 403 is designed to prevent.”
2008 UT 49, ¶ 53, 191 P.3d 17 (citation omitted) (second alteration in
original). But this language was expressly repudiated by our
decision in Cuttler, which implicitly overruled Killpack. See supra ¶ 45
n.79.
82 Lowther, 2015 UT App 180, ¶ 27 (citation omitted).
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Opinion of the Court
real purpose,”83 and not on whether the evidence would “rouse the
jury to overmastering hostility”—a now defunct standard.84
¶ 47 In summary, the court of appeals is correct that the district
court abused its discretion by mechanically applying the Shickles
factors. But the court of appeals erred in concluding that the district
court was required to apply Verde. We accordingly direct the district
court to reconsider the testimony of A.P., C.H., and C.R. under the
text of rule 403.
Conclusion
¶ 48 The doctrine of chances is not limited solely to rebutting
claims of fabrication, and its application in this case was not
premature. Further, the court of appeals erred when it concluded
that the district court was required to consider the foundational
requirements outlined in State v. Verde85 in its rule 403 balancing test.
But it did not err when it concluded that the district court abused its
discretion by rigidly applying the factors outlined in State v.
Shickles.86 Because Mr. Lowther has prevailed on appeal, he is
entitled to withdraw his guilty plea87 and request that the district
court reconsider his challenge to the witnesses’ testimony under the
standard articulated in this opinion. If he does so, the district court
should carefully consider the text of rule 403 of the Utah Rules of
Evidence and balance the probative value of the testimony of A.P.,
C.H., and C.R. against the risk of unfair prejudice.
_____________________________________________________________
83 Verde, 2012 UT 60, ¶ 18.
84 Cuttler, 2015 UT 95, ¶ 16 n.5 (citation omitted).
85 2012 UT 60, 296 P.3d 673.
86 760 P.2d 291 (Utah 1988).
87 See UTAH R. CRIM. P. 11(j) (“A defendant who prevails on
appeal [from a conditional guilty plea] shall be allowed to withdraw
the plea.”).
22