State v. Rallison

2023 UT App 34THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DUSTIN BRENT RALLISON,
Appellant.
Opinion
No. 20200667-CA
Filed April 6, 2023
First District Court, Brigham City Department
The Honorable Brandon J. Maynard
No. 191100093
Freyja Johnson and Emily Adams,
Attorneys for Appellant
Sean D. Reyes and Jonathan S. Bauer,
Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.
MORTENSEN, Judge:
¶1 This case comes to us on interlocutory appeal of the district
court’s ruling on the admissibility of several items of evidence
under Utah’s version of the “rape shield” rule of evidence, which
generally prohibits evidence at trial of a victim’s sexual behavior
or disposition. Five women have accused Dustin Brent Rallison of
physical and sexual assault occurring while they worked as
servers at a restaurant he owned and operated. Prior to trial in this
case, Rallison sought to admit, and the State sought to exclude,
seventeen items of evidence that may implicate the rape shield
rule. The district court excluded sixteen of the seventeen items,
State v. Rallison
and Rallison appeals the exclusion of six of those items. We affirm
in part and reverse in part.
BACKGROUND
¶2 Rallison and his wife owned and operated a restaurant
where the five alleged victims worked as servers. One of the
servers—Tiffany1—reported to police that, as she was leaving
work after the restaurant closed one evening, Rallison ran out and
grabbed her breasts over her shirt from behind her. She reported
that as she kept walking to her car and asked him what he was
doing, he reached down her shirt and pinched and twisted her
nipples over her bra. She further stated that she told him he was
hurting her, but he reached inside her bra and pinched, pulled,
and twisted her nipples, causing both nipples to bleed. She
reported the alleged assault to police the next day, and a police
detective interviewed other employees at the restaurant.
¶3 Four other servers told police that Rallison had also
physically and sexually assaulted them at the restaurant. The
servers reported that Rallison repeatedly slapped or punched
them on the buttocks or breasts. They alleged that Rallison put
them “in choke holds to the point that they would pass out or
almost pass out,” sometimes pressing his body against an alleged
victim “to where [she] could feel his private parts on [her] butt.”
Some claimed that Rallison touched them on their breasts or
buttocks beneath their clothing. One stated that Rallison
forcefully poked the tip of his finger into her “butt hole” through
her leggings.
¶4 Rallison was charged with, among other things, four
counts of sexual battery for allegedly touching the buttocks or
breasts of some of the women, as well as three counts of forcible
1. A pseudonym. We discuss the other alleged victims without
distinguishing them, in an effort to obscure their identities.
20200667-CA 2 2023 UT App 34State v. Rallison
sexual abuse for allegedly touching the bare breasts or buttocks of
some of the women. To convict a defendant of sexual battery, the
State must prove that a defendant “intentionally touches, whether
or not through clothing, the anus, buttocks, or any part of the
genitals of another person, or the breast of a female person, and
the actor’s conduct is under circumstances the actor knows or
should know will likely cause affront or alarm to the person
touched.” Utah Code § 76-9-702.1(1). To convict a defendant of
forcible sexual abuse, the State must prove that a defendant
touched “the anus, buttocks, pubic area, or any part of the genitals
of another individual,” touched “the breast of another individual
who is female,” or took “indecent liberties with another
individual” and that the defendant acted “without the consent”
of the other and with the intent to “cause substantial emotional or
bodily pain to any individual” or to “arouse or gratify the sexual
desire of any individual.” Id. § 76-5-404(2).
¶5 At a preliminary hearing, the magistrate heard testimony
from each of the alleged victims. Following the hearing, the State
filed a motion in limine seeking exclusion of certain testimony
under rule 412 of the Utah Rules of Evidence. Rallison opposed
the State’s motion and moved to admit seventeen pieces of
evidence. Of these, six pieces of evidence2 are at issue in this
appeal:
2. Rule 412 indicates, “Before admitting evidence under this rule,
the court must conduct an in camera hearing and give the victim
and parties a right to attend and be heard. Unless the court orders
otherwise, the motion, related materials, and the record of the
hearing are classified as protected.” Utah R. Evid. 412(c)(3). The
district court acted accordingly, and the proceedings below have
been classified as protected. However, the rule does not address
the handling of the evidence upon appeal. We recognize that
“[t]he purpose of rule 412 is to prevent the accusers in sexual
(continued…)
20200667-CA 3 2023 UT App 34State v. Rallison
• Item 5: Rallison claims that the alleged victims
showed him and the restaurant cooks nude selfies
on their phones.3
• Item 9: On the night of Rallison’s alleged assault
against Tiffany in the parking lot and before going
to work, Tiffany engaged in the following text
exchange with her friend:
[Tiffany]: I saw that [Rallison’s wife] wasn’t going to
be at the [restaurant] tonight. Meaning either [a
cook] is closing up or [Rallison] is. And I started
feeling F***ing scared. Wtf. If [Rallison] is closing
that means I have make sure I’m never alone by him
so I get my f***ing body wrecked by him. F*** sexual
predators lol
[Friend]: Hahahaha I think it’s funny that you got
legit scared
assault cases from being subjected to ‘unwarranted inquiries into
[their] sexual behavior.’” State v. Clark, 2009 UT App 252, ¶ 30, 219
P.3d 631 (quoting State v. Tarrats, 2005 UT 50, ¶ 20, 122 P.3d 581),
cert. denied, 225 P.3d 880 (Utah 2010). Because we protect the
identities of the alleged victims and because we ultimately hold
that most of the evidence at issue is admissible, we do not feel that
describing that evidence here subjects the alleged victims to
“unwarranted inquiries into [their] sexual behavior.” See id.
3. There is no testimony in the transcript that supports Rallison’s
assertion that such evidence exists except as pertains to the
separate item 10. In this interlocutory appeal, we discuss this item
under the assumption that such evidence exists for the sake of
determining admissibility based on the possibility that such
evidence may be brought forward.
20200667-CA 4 2023 UT App 34State v. Rallison
[Tiffany]: He was really rough on Monday with my
boobs so I am a little scared. My right nipple was
bleeding.
[Friend]: I hate that. It’s not funny. I’m sorry you get
abused at work By your hot boss. (emoji) at least
he’s no tugly lol
[Tiffany]: I feel like it would be easier if he was ugly.
And not married . . . to my other
[Friend]: Hahahaha me either. I’d probs give in
cause I know he would choke the f*** out of me then
I would just squirt down my leg then it would be
game on.
[Tiffany]: Hahaha I just don’t know if I would f***
him because I want too or f*** him because he’ll fire
me if I don’t lol.
Tiffany testified that she considered this
hypothetical discussion about sex with Rallison to
be a joke.
• Item 10: On the night of the alleged parking lot
assault, Tiffany and Rallison were comparing
phones, and Rallison said Tiffany didn’t have nude
selfies on her phone; she responded that she did but
kept them in a password-protected app.
Tiffany testified that Rallison “pressured [her] into
giving . . . him the code.” Rallison looked at the
photos.
• Item 11: The alleged victims slapped each other’s
buttocks at work.
20200667-CA 5 2023 UT App 34State v. Rallison
• Item 12: Rallison claims that male cooks slapped
others’ buttocks at work and that at least one alleged
victim slapped the cooks’ buttocks. Rallison also
asserts that the alleged victims made flirtatious and
sexual comments to the cooks and others at the
restaurant, sometimes in front of Rallison.
• Item 17: One of the servers told the detective, “[I]n
the beginning it was like mutual, you know? How I
said, like everyone was flirting and messing around.
It’s all just like fun. And I feel that’s like what led
him to think that it was okay because then it was.”
This activity may have included reciprocal buttocks
slapping.4
Rallison alleged that items 11, 12, and 17 were relevant to the
sexual battery charges and that items 5, 9, and 10 were relevant to
the forcible sexual abuse charges.
¶6 The district court excluded sixteen of the seventeen items
discussed in the motions in limine, including all six items at issue
in this appeal, ruling that items 9, 11, and 12 were barred by rule
412(a) and that items 5, 10, and 17 should be excluded under rule
403 of the Utah Rules of Evidence. Rallison petitioned for
permission to appeal the district court’s interlocutory order
respecting these six items, and this court granted his petition.
ISSUE AND STANDARD OF REVIEW
¶7 Rallison contends that the district court improperly
excluded six items of evidence. “We afford district courts a great
4. Rallison presents this as “mutual and consensual touching of
the buttocks,” but it is not entirely clear from the preliminary
hearing testimony whether the alleged victim ever touched
Rallison’s buttocks.
20200667-CA 6 2023 UT App 34State v. Rallison
deal of discretion in determining whether to admit or exclude
evidence and will not overturn an evidentiary ruling absent an
abuse of discretion.” State v. Cuttler, 2015 UT 95, ¶ 12, 367 P.3d 981(cleaned up). “But whether the district court applied the proper
legal standard in assessing the admissibility of that evidence is a
question of law that we review for correctness.” Id. (cleaned up).
A court abuses its discretion when it applies the wrong legal
standard or when “its decision to admit or exclude evidence is
beyond the limits of reasonability.” Id. (cleaned up).
ANALYSIS
¶8 We agree with the district court that items 11 and 12—other
than evidence showing cooks slapping each other’s buttocks—
should be excluded under rule 412(a) of the Utah Rules of
Evidence. Evidence of cooks slapping each other’s buttocks does
not involve the alleged victims and is therefore beyond rule 412’s
purview—we reverse on this point. We also conclude that the
district court incorrectly applied rule 412 to item 9 and exceeded
its discretion in excluding items 5, 10, and 17 under rule 403 of the
Utah Rules of Evidence. Therefore, we affirm in part and reverse
in part.
I. Rule 412: Items 9, 11, and 12
¶9 Under rule 412, evidence offered either “to prove that a
victim engaged in other sexual behavior” or “to prove a victim’s
sexual predisposition” is “not admissible in criminal . . .
proceedings involving alleged sexual misconduct.” Utah R. Evid.
412(a). However, the rule contains an exception for “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,” so long as such evidence “is otherwise
admissible.” Id. R. 412(b)(2). Another exception permits
admission of evidence “whose exclusion would violate the
defendant’s constitutional rights.” Id. R. 412(b)(3).
20200667-CA 7 2023 UT App 34State v. Rallison
¶10 We first note that evidence of the cooks slapping
each other’s buttocks—included in Rallison’s identification of
item 12 but not the district court’s—is beyond the purview of rule
412 as it does not involve the alleged victims. To the extent that
the district court barred this testimony, we reverse. But as to
evidence that the alleged victims engaged in buttocks slapping
with the cooks or with each other, we affirm the district court’s
decision.
¶11 Rule 412 governs admission of “evidence that directly
refers to sexual activities or thoughts.” State v. Martin, 2002 UT 34,
¶ 42, 44 P.3d 805 (cleaned up). Our supreme court has indicated
“that rule 412 should be construed broadly in order to fully
effectuate the policy considerations underlying its prohibitions.”
Id. Accordingly, rule 412 covers “all evidence that may have a
sexual connotation for the fact finder.” State v. Tarrats, 2005 UT 50,
¶ 22, 122 P.3d 581 (cleaned up).
A. Items 11 and 12
¶12 Rallison argues that items 11 and 12—which include “butt
slapping,” flirting, and discussing sexual matters between and
among the servers and cooks—do not fall under rule 412 because
they are not evidence of “other sexual behavior” or of the alleged
victims’ “sexual predisposition.” See Utah R. Evid. 412(a). He
asserts that these items are “sexually innocuous.”
¶13 In State v. Martin, 2002 UT 34, 44 P.3d 805, our supreme
court determined that evidence that the alleged victim had
previously accepted a ride from a stranger—offered to show the
victim’s “casual attitude toward strangers,” her “impulsiveness,”
and her “irresponsibility”—was “sexually innocuous.” Id. ¶¶ 41–
42 (cleaned up). The court reasoned that “a jury could no more
reasonably deduce . . . sexual act[ivity] with the stranger than it
could conclude they played board games, built model airplanes,
or ate sandwiches.” Id. ¶ 42.
20200667-CA 8 2023 UT App 34State v. Rallison
¶14 The behavior at issue here, by contrast, is not sexually
innocuous. First, the Utah Legislature has made it clear that
touching another person’s buttocks may constitute a sex crime.
See, e.g., Utah Code § 76-5-404(2) (forcible sexual abuse); id. § 76-
9-702.1(1) (sexual battery); id. § 76-5-404.1(2) (sexual abuse of a
child). Rallison is himself facing sexual battery charges for the
same type of touching.
¶15 Second, rule 412 covers “all evidence that may have a
sexual connotation for the fact finder,” State v. Boyer, 2020 UT App
23, ¶ 29, 460 P.3d 569 (cleaned up), cert. denied, 466 P.3d 1075 (Utah
2020), and the evidence in question may have such a connotation.
Flirting satisfies this standard because it may imply sexual
attraction or desire and can be interpreted as an invitation for
further contact, including sexual contact. See Ferencich v. Merritt,
79 F. App’x 408, 415 (10th Cir. 2003) (“[A supervisor’s] testimony
that he interpreted plaintiff’s act of showing him her tongue ring
as flirting, because of its perceived sexual use, was relevant to
both the issue of whether his sexual conduct was ‘unwelcome,’
and whether [personnel director and employer] should have
known that plaintiff was being harassed.”). Sexual comments
inherently carry sexual connotations. And while we can perhaps
envision an isolated context in which a buttocks slap might, to
some, be considered non-sexual (e.g., a “way to go” bump of
encouragement in the middle of a sporting event), we think it safe
to say that buttocks slapping—especially in a non-athletic
workplace—almost always carries a sexual connotation. See Bearer
v. Teva Pharms. USA, Inc., No. 19-5415, 2021 WL 4145053, at *27
(E.D. Pa. Sept. 8, 2021) (discussing an executive’s slapping of an
employee’s buttocks as “inappropriately and offensively
touch[ing] an intimate area of her body” and reasoning that
“undoubtedly, such conduct is physically threatening and
humiliating” (cleaned up)); Vergara v. Keyes, No. 3:20-cv-01460,
2020 WL 7778080, at *1–2 (D.N.J. Dec. 30, 2020) (discussing as
alleged sexual battery a co-worker slapping an officer’s buttocks).
Such behavior is undeniably more sexually charged than getting
20200667-CA 9 2023 UT App 34State v. Rallison
a ride from a stranger, as in Martin. Furthermore, touching a
person’s private or intimate body parts at work may very well be
grounds for a sexual harassment claim if nonconsensual. See
generally Wilcox v. Corrections Corp. of Am., 892 F.3d 1283, 1285–86
(11th Cir. 2018) (discussing employee’s sexual harassment claim
where coworker “slapped [employee] on the buttocks twice”).
And buttocks are generally considered to be private or intimate
body parts. See, e.g., Bearer, 2021 WL 4145053, at *27 (calling female
employee’s buttocks “an intimate area of her body”). The fact that
some of the slapping at issue in item 11 may have been consensual
does not make it nonsexual.
¶16 Third, the alleged victims’ testimony supports the
sexualized nature of the buttocks slapping. As to the cooks
slapping the servers’ buttocks, multiple servers testified that it
made them uncomfortable, presumably because of the intimate
nature of the touching. One server testified that she was
uncomfortable with the cooks doing it and she “told them off, told
them it was not okay,” after which the cooks stopped. Another
testified that she was “not at all” okay with it, stating, “I was like,
don’t do that. I’m very uncomfortable about that. I don’t like
that.” And a third testified that she “let [the cook] know that it
wasn’t okay.” On the other hand, the testimony is clear that the
women were okay with the intra-server slapping described in
item 11.5 But their comfort with it appears to stem from the
5. Rallison would like us to apply State v. Denos, 2013 UT App 192,
319 P.3d 699, cert. denied, 329 P.3d 36 (Utah 2014), to find that
buttocks slapping by the cooks against the servers falls outside of
rule 412(b)(2) because it is not the alleged victims’ sexual
behavior. Id. ¶ 16. In Denos, the court concluded that evidence that
the defendant entered the room where the alleged victim was
sleeping to stop another man attempting to assault her was not
barred by rule 412 because it did “not relate to [the victim’s]
sexual behavior or predisposition.” Id. But Rallison himself
(continued…)
20200667-CA 10 2023 UT App 34State v. Rallison
intimacy of their friendship and not because the activity was non-
sexual: one server stated that she was okay with it because they
were “best friends,” and at least one server testified that not all
women employees were involved in such touching, saying that it
was “a select few because we’re close friends.” She also testified
that these close friends sometimes touched each other’s breasts,
again suggesting that they found the touching acceptable not
because it was categorically nonsexual but because they were
intimate friends.
¶17 For these reasons, items 11 and 12 are not sexually
innocuous. Rather, they are evidence of “other sexual behavior”
or “sexual predisposition,” see Utah R. Evid. 412(a), and the
district court was correct in determining that these items fall
within the purview of rule 412(a).
¶18 Nonetheless, Rallison argues that items 11 and 12 are
admissible under rule 412(b)(3) because their exclusion would
violate his constitutional rights. We disagree. Rule 412(b)(3)
provides an exception for rule 412 testimony “whose exclusion
would violate the defendant’s constitutional rights.” Id.R. 412(b)(3). And “the Constitution guarantees criminal
defendants a meaningful opportunity to present a complete
presents “‘butt-slapping’ amongst the staff”—including “some
female servers slapping male cooks’ buttocks”—as “routine” and
claims that it “goes to the heart of the culture and climate” of the
restaurant. If the slapping was reciprocal, Denos would not apply
because the slapping would include the alleged victims’ sexual
behavior. And although the testimony as to whether servers
actually slapped cooks’ buttocks is limited, Rallison cannot have
his cake and eat it too by claiming that it was reciprocal while
simultaneously implying that cook-on-server slapping was one-
sided assault like in Denos. Therefore, we do not apply Denos. If
the factual development differs at trial, the district court may find
Denos applicable.
20200667-CA 11 2023 UT App 34State v. Rallison
defense.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006)
(cleaned up); State v. Robinson, 2018 UT App 103, ¶ 37, 427 P.3d
474, cert. denied, 432 P.3d 1226 (Utah 2018). But this exception
applies only where exclusion of the evidence “foreclose[s] any
meaningful avenue for presenting a defendant’s fundamental
defense to charges against him.” See State v. Thornton, 2017 UT 9,
¶ 74, 391 P.3d 1016; see also State v. Nunez-Vasquez, 2020 UT App
98, ¶ 32, 468 P.3d 585, cert. denied, 474 P.3d 945 (Utah 2020). That
is not the case here.
¶19 Rallison asserts that items 11 and 12 address a critical
element of sexual battery: that “the actor’s conduct is under
circumstances the actor knows or should know will likely cause
affront or alarm to the person touched.” See Utah Code § 76-9-
702.1(1). Rallison argues that “touching that would ‘likely cause
affront or alarm’ in some instances may not ‘likely cause affront
or alarm’ in every instance,” see id., and that items 11 and 12
“demonstrated that the workplace culture was playful and
included employees touching one another and slapping each
other on the buttocks in the context of horseplay and joking
around.” Accordingly, Rallison says he “can argue that the State
did not meet its burden of showing that he ‘knew or should have
known certain conduct was likely to cause affront or alarm,’” see
id., but he can do so only by “pointing to the circumstances under
which the touching occurred.” If he cannot show that “the staff
routinely touched and slapped one another’s buttocks, including
in joking and horseplay,” he asserts, he will be “effectively
bar[red] . . . from mounting a defense to these charges.”
¶20 We are not persuaded. For item 12, Rallison fails to
articulate how the servers flirting and making sexual comments
to people other than Rallison could have impacted how the
servers viewed touching from him. Regarding the cooks slapping
servers’ buttocks, the servers’ testimony made it clear that the
alleged victims were uncomfortable with the touching. See supra
¶ 16. Rallison does not explain how—in the face of this
20200667-CA 12 2023 UT App 34State v. Rallison
testimony—this slapping could be interpreted as mere horseplay
and support his defense. And Rallison provides no argument for
why buttocks slapping from him would not cause affront or alarm
where servers testified that buttocks slapping from the cooks did
so. Furthermore, as to the existence of buttocks slapping at work,
Rallison is free to offer testimony of such activity that does not
involve the alleged victims, including buttocks slapping among
the male cooks. Therefore, this testimony is not essential to
Rallison’s ability to present a complete defense and does not come
in under the rule 412(b)(3) exception.
¶21 Likewise, item 11 does not qualify for this exception.
Rallison fails to explain how the servers’ comfort with item 11—
buttocks slapping among close friends and peers—translates to
comfort with him slapping their buttocks. Rallison was their
significantly older boss.6 The power differential between Rallison
as owner-operator and the servers negates the homogeneity of
item 11 necessary for the conclusion Rallison proposes. As one
server testified about server-on-server buttocks slapping, “That’s
different. They’re my best friends. . . . It’s not my boss.” Given the
servers’ testimony and the undeniable differences in
circumstances between the servers’ slapping and Rallison’s,
Rallison’s argument that item 11 indicates a playful work
environment essential to his defense falls flat. The circumstances
between the two are so different that no reasonable juror could
believe that item 11 offers the defense Rallison proposes. While
Rallison is free to testify that he believed his actions would not
cause affront or alarm, the testimony of the servers with respect
to their slapping of each other’s buttocks does not support this
and therefore cannot be essential to Rallison’s defense.
6. At the time of the preliminary hearing, the alleged victims
ranged in age from seventeen to twenty-one. Rallison was thirty-
three. The youngest of the alleged victims testified that she
believed Rallison began slapping her buttocks when she was still
fifteen.
20200667-CA 13 2023 UT App 34State v. Rallison
Accordingly, the district court did not abuse its discretion in
concluding that item 11 also fails to qualify for the exception
under rule 412(b)(3).
B. Item 9
¶22 The district court excluded this item—the text exchange
between Tiffany and her friend before the shift of the alleged
parking lot assault—because it concluded that the exchange did
“not concern the alleged victim’s sexual behavior with respect to
[Rallison] because [Rallison] was not involved in the
communications.” In so ruling, the district court misapplied the
exception under rule 412(b)(2). The plain language of the rule
does not require the “person accused of the sexual misconduct”
to be aware of the “specific instances of a victim’s sexual behavior
with respect to th[at] person.” Utah R. Evid. 412(b)(2). See also
State v. Varlas, 787 S.E.2d 670, 678 (W. Va. 2016) (admitting text
messages sent by a third party to the alleged victim that discussed
sexual conduct between the defendant and the alleged victim).
We do not find any requirement of the person’s awareness in the
language “with respect to.” Accordingly, the district court erred
in ruling that rule 412(b)(2)’s exception did not apply merely
because Rallison was not aware of the messages at the time of the
alleged assault.
¶23 The State argues that this item should be excluded
because it does not qualify as a “specific instance[] of a victim’s
sexual behavior” with respect to Rallison. See Utah R. Evid.
412(b)(2). While the rule 412(b)(2) exception might
permit admission of “statements in which the alleged victim
expressed an intent to engage in sexual intercourse with the
accused, or voiced sexual fantasies involving the specific
accused,” R. Collin Mangrum & Dee Benson, Mangrum & Benson
on Utah Evidence, 1 Utah Prac. Rule 412, Westlaw (updated Nov.
2022), the State asserts that the statement at issue was merely a
“cynical anecdote” from Tiffany, not an expression of intent to
20200667-CA 14 2023 UT App 34State v. Rallison
engage in sexual activity with Rallison or a sexual fantasy about
him. If anything, the State argues, this item is “ambiguous about
any sexual intent or fantasizing regarding Rallison.” We too do
not read item 9 as expressing Tiffany’s intent to engage in sexual
intercourse with Rallison—we acknowledge that its discussion of
intercourse is entirely hypothetical, and we read the text exchange
as a whole as quite damning to Rallison—but we believe the State
applies this exception too narrowly. The text exchange clearly
discusses “specific instances” of hypothetical sexual behavior
between Tiffany and Rallison, as well as Tiffany’s thoughts—even
if made in jest and even if negative—about potential sexual
behavior with Rallison. Therefore, we find unpersuasive the
State’s position that this item does not fall under rule 412(b)(2)’s
exception.
¶24 Alternatively, the State argues that this item should be
excluded under rule 403 because it has low probative value and
carries a high risk of unfair prejudice. We consider this argument
in our discussion of rule 403 below. See infra ¶¶ 36–38. Because the
district court applied the wrong legal standard as to this item, it
exceeded its discretion, and we reverse its ruling that item 9 was
inadmissible under rule 412.
II. Rule 403: Items 5, 9, 10, and 17
¶25 Evidence that comes within one of the exceptions to rule
412 must still pass muster under rule 403. See Utah R. Evid. 412(b);
State v. Beverly, 2018 UT 60, ¶ 55, 435 P.3d 160 (“Rule 412 explicitly
provides that before any evidence is admitted through one of
its exceptions, it must also be ‘otherwise admissible’ under the
rules of evidence. So a defendant attempting to admit
evidence under rule 412(b)(1) must also meet the requirements of
rule 403.” (cleaned up)). Under rule 403, “[t]he court may exclude
relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue
20200667-CA 15 2023 UT App 34State v. Rallison
delay, wasting time, or needlessly presenting cumulative
evidence.” Utah R. Evid. 403.7
7. We acknowledge that our supreme court has stated that
“[w]hen applying rule 403 to the admissibility of a rape victim’s
past sexual conduct, there is a presumption of inadmissibility,”
State v. Boyd, 2001 UT 30, ¶ 41, 25 P.3d 985, such that this
“evidence is admissible only when the court finds under the
circumstances of the particular case such evidence is relevant to a
material factual dispute and its probative value outweighs the
inherent danger[s]” listed in rule 403, id. (quoting State v. Williams,
773 P.2d 1368, 1370 (Utah 1989)); see also State v. Beverly, 2018 UT
60, ¶ 55, 435 P.3d 160; State v. Dibello, 780 P.2d 1221, 1229 (Utah
1989); State v. Ashby, 2015 UT App 169, ¶ 32, 357 P.3d 554, cert.
denied, 363 P.3d 523 (Utah 2015); State v. Bravo, 2015 UT App 17,
¶ 19, 343 P.3d 306, cert. denied, 352 P.3d 106 (Utah 2015).
However, our supreme court has recently “repeatedly
eschewed extra-textual or contra-textual judicial glosses on the
Utah Rules of Evidence.” State v. Biel, 2021 UT 8, ¶ 25, 484 P.3d
1172; see, e.g., State v. Lowther, 2017 UT 34, ¶ 30 n.40, 398 P.3d 1032(pointing “to the plain language of rule 404(b) for the standard for
the admissibility of evidence” and repudiating a prior
characterization of rule 404(b) as “inclusionary”). And an
application of rule 403 that presumes inadmissibility for rule 412
evidence is not indicated in the plain language of rule 403, which
states that evidence may be excluded “if its probative value is
substantially outweighed by a danger of one or more of the
following.” Utah R. Evid. 403. Accordingly, we are not certain
whether this presumption continues to be applicable, and we wait
for the supreme court to weigh in on this issue.
However, on the facts before us, we are satisfied that the
probative value of these items outweighs their associated risks
such that the outcome of this case does not rely on our application
of a presumption one way or the other.
20200667-CA 16 2023 UT App 34State v. Rallison
¶26 Evidence is unfairly prejudicial where it “has an undue
tendency to suggest decision upon an improper basis.” State v.
Barney, 2018 UT App 159, ¶ 20, 436 P.3d 231 (cleaned up).
Evidence may also cause unfair prejudice when it “reveal[s]
intimate and potentially embarrassing details” about victims.
State v. Bravo, 2015 UT App 17, ¶ 41, 343 P.3d 306, cert. denied, 352
P.3d 106 (Utah 2015). And in particular, sexual evidence
presented under rule 412(b)(2) may have a “propensity . . . to
distort the jury’s deliberative process, thereby confusing or
misleading the jury.” Id. ¶ 21 (cleaned up).
¶27 On the other hand, “the probative value of prior sexual
history may be greater when the prior acts are similar to the
charged conduct.” Id. ¶ 29. This is because a person is “more likely
to consent to the kind of sexual relations [that person] has had
with a partner in the past.” State v. Richardson, 2013 UT 50, ¶ 26,
308 P.3d 526.
A. Items 5 and 10
¶28 For items 5 and 10, we conclude that the district court
exceeded its discretion in excluding purported evidence that the
servers showed Rallison nude selfies and evidence that Tiffany
gave Rallison the password to the app containing nude selfies
shortly before the alleged assault in the parking lot. First, we note
that we agree that these items fall under the exception in rule
412(b)(2) because they include allegations that the servers shared
sexually explicit images with Rallison, the person accused of the
sexual misconduct.8 Moving to the rule 403 analysis, the district
8. Rallison also asserts that the alleged victims shared sexually
explicit materials with the cooks. Such evidence does not qualify
for the exception in rule 412(b)(2) because it does not involve
Rallison. Therefore, it must be excluded under rule 412. Our
holding as regards item 5 being admissible does not apply to this
purported evidence, which was properly excluded.
20200667-CA 17 2023 UT App 34State v. Rallison
court ruled these items inadmissible “because the probative value
of any alleged grant of permission to view nude selfies . . . is
substantially outweighed by the danger that any such evidence
will cause unfair prejudice, confuse the issues, or mislead the
jury.” The court reasoned that “[t]his evidence may unfairly
signify to the jury that granting permission to view selfies
amounts to permission to forcibly being touch[ed] without
consent” and that “[n]o reasonable person could [so] conclude.”
We disagree with the district court that the risk of harm outweighs
the probative value, and we reverse this ruling.
¶29 This evidence has some probative value. Evidence that one
or more alleged victims shared sexually explicit material with
Rallison may inform the jury’s understanding of the relationships
between Rallison and the alleged victims. This is important
because, to convict Rallison of forcible sexual abuse, the State
must prove that Rallison’s touching was done “without the
consent” of the other individual. See Utah Code § 76-5-404(2).
While we agree with the district court that sharing sexually
explicit material does not necessarily convey consent for touching
generally or specifically, we think that this evidence has some use
for the jury in determining what type of sexual relationship with
Rallison—if any—the alleged victims consented to. This is
particularly true for item 10 given that it occurred in close
temporal proximity to the alleged parking lot assault.
¶30 We acknowledge that there is some risk of prejudice due to
the embarrassing nature of sharing nude selfies with one’s older,
married boss. But this information is not as intimate or
embarrassing as some rule 412 evidence that has been excluded
under rule 403. See, e.g., State v. Boyd, 2001 UT 30, ¶¶ 33, 43, 25
P.3d 985 (excluding evidence of previous sexual intercourse on
the evening in question where it had “little probative value” to
the question of consent as it was not alleged to be “rough” and
would not explain bruising); Bravo, 2015 UT App 17, ¶ 41
(concluding accuser’s consensual anal sex with ex-husband after
20200667-CA 18 2023 UT App 34State v. Rallison
their divorce carried “significant danger of unfair prejudice”
because it was unconventional). Furthermore, Rallison does not
seek to admit as exhibits what was allegedly shared with him—
which would undoubtedly be more embarrassing for the alleged
victims—but merely the alleged fact that they shared sexually
explicit material with him. And we think that evidence that a
person has shared pictures, even explicit ones, is here—and likely,
as a rule—less intimate, embarrassing, and prone to causing
unfair prejudice than evidence of engaging in anal sex or sexual
intercourse. See Richardson, 2013 UT 50, ¶¶ 21, 31; Boyd, 2001 UT
30, ¶¶ 33, 43; Bravo, 2015 UT App 17, ¶ 41.
¶31 Additionally, the servers’ testimonies as to the
circumstances of the sharing may reduce the risk of unfair
prejudice or confusion of the issues. Indeed, Tiffany testified at
the preliminary hearing that Rallison, in his position of authority
as her boss, pressured her into sharing the password to the folder
containing her photos; this fact may reduce embarrassment
associated with the sharing and comports with an image of the
work environment Rallison created—and the sexual activity he
allegedly engaged in with the servers therein—as oppressive
rather than consensual. At this time, there is no actual evidence in
the record of other servers sharing nude selfies with Rallison, but
if it arises, any involved servers would also be able to testify to the
circumstances. Furthermore, we are confident that an appropriate
limiting instruction can prevent jury confusion on this topic.
¶32 Accordingly, we conclude that the district court exceeded
its discretion in excluding these items because their probative
value outweighs the risks of unfair prejudice, confusion, or
misleading the jury. The court was unreasonable in ruling
otherwise because it erroneously believed that the jury could not
distinguish between the actions described in these items and
being forcibly touched. We believe that a jury can so distinguish,
particularly with a limiting instruction, and we determine that the
jury should be able to hear this evidence.
20200667-CA 19 2023 UT App 34State v. Rallison
B. Item 17
¶33 Likewise, we conclude that the district court exceeded its
discretion in excluding item 17. This item comprises evidence that
one server initially viewed the buttocks slapping and “messing
around” between herself and Rallison as mutual and consensual.
First, we must determine whether item 17 qualifies for an
exception to rule 412, and we determine that it does. For the
reasons explained above, see supra ¶¶ 14–17, the buttocks slapping
is “evidence of specific instances of a victim’s sexual behavior
with respect to the person accused of sexual misconduct,” and it
therefore qualifies for the exception in rule 412(b)(2).
¶34 Next, we consider whether it was properly excluded under
rule 403, and we conclude that it was not. This evidence has high
probative value. Rallison is charged with slapping the buttocks of
the server whose testimony is at issue, and her testimony indicates
that at some point their buttocks slapping was mutual and
consensual. The district court excluded this evidence based on its
belief that the relevant charge did not involve buttocks slapping,
but it did.9 Because “the probative value of prior sexual history
9. The district court asserted that “the State charged Defendant
with sexual battery ‘for [allegedly] rubbing his penis against the
[alleged] victim’s buttocks, choking [her], and grabbing [her] bare
breasts,’ not ‘for slapping this victim’s buttocks.’” (Alterations in
original.) The court relied on language from the State’s
memorandum opposing Rallison’s rule 412 motion. Accordingly,
the court reasoned that “[t]his evidence may unfairly signify to
the jury that engaging in butt touching amounts to permission to
commit the acts Defendant is accused of. . . . It does not.”
However, the State indicated at the preliminary hearing that this
count was based on Rallison touching this server’s buttocks after
she no longer consented. And the State’s brief cites the server’s
testimony that Rallison “continued to slap her on the butt after
(continued…)
20200667-CA 20 2023 UT App 34State v. Rallison
may be greater when the prior acts are similar to the charged
conduct,” Bravo, 2015 UT App 17, ¶ 29, and because a person is
“more likely to consent to the kind of sexual relations [that
person] has had with a partner in the past,” Richardson, 2013 UT
50, ¶ 26, the probative value of this evidence is particularly high.
The server’s acknowledged initial consent to buttocks slapping is
material to whether she continued to consent to that same action
throughout her employment.
¶35 While there may be some negligible risk of prejudice or
confusion, here the probative value substantially outweighs any
such risk. Reciprocal buttocks slapping is far less embarrassing
than other sexual evidence determined to be properly excluded in
other cases. See, e.g., Boyd, 2001 UT 30, ¶¶ 33, 43; Bravo, 2015 UT
App 17, ¶ 41. And there should be little confusion for the jury that
the question is whether and when consent was withdrawn.
Accordingly, it was unreasonable for the district court to exclude
item 17, and in doing so it exceeded its discretion.
C. Item 9
¶36 In addition to its unavailing argument that Item 9 should
be excluded under rule 412, the State presents an alternative
argument that this item should be excluded under rule 403
because it has low probative value and carries a high risk of unfair
prejudice. The State applies our analysis in State v. Bravo, 2015 UT
App 17, 343 P.3d 306, cert. denied, 352 P.3d 106 (Utah 2015),
indicating that probative value increases when evidence deals
with activity similar to that alleged, id. ¶¶ 29, 40–41, and asserts
that there is “a disconnect between the hypothetical sexual
intercourse [Tiffany] texted about and Rallison’s alleged act of
following [her] out to her car after a work shift, grabbing her
breasts from behind, and then reaching under her shirt and bra to
she told him it made her uncomfortable” as supporting evidence
on this charge.
20200667-CA 21 2023 UT App 34State v. Rallison
twist her nipples over her objection.” The State argues that this
item’s “low probative value is significantly outweighed by its
potential for unfair prejudice” because it could “unfairly signify
to the jury” that Tiffany’s “frank sexual communications with her
friend somehow implied consent to being assaulted by Rallison”
and because it would reveal intimate and potentially
embarrassing information: “private communications of a frank,
sexual nature about her married boss.” The State declares that
“[a]dmission of evidence under rule 412(b)(2) ‘necessarily
includes a determination that the probative value of the evidence
outweighs the danger of unfair prejudice, confusion of the issues,
or misleading the jury.’” Id. ¶ 26. And it asserts that this item’s
“low probative value is substantially outweighed by the danger
of unfair prejudice or confusing the jury.”
¶37 We disagree with the State that this item has low probative
value. Tiffany’s discussion with her friend on the night of the
alleged parking lot assault of hypothetical sexual behavior with
respect to Rallison is probative of whether she consented to
engage in sexual behavior with Rallison later that night. And
Bravo does not negate an item’s probative value simply because
the behavior in the evidence is not identical to that which was
alleged. Besides, in the text exchange, Tiffany tells her friend that
Rallison roughly touched her breasts and made her nipple bleed,
and Rallison is accused of nonconsensual touching of her breasts,
so there is high similarity on this point. And Tiffany’s expressed
fear of Rallison and negative feelings about his touching during a
previous shift will inform a jury’s understanding of whether
Tiffany consented to Rallison touching her that night.
¶38 Additionally, several circumstances reduce the risk of
embarrassing Tiffany by admitting the text exchange. First, the
exchange begins with Tiffany expressing her fear of working with
Rallison that night because she believes he may hurt her, and she
also suggests that Rallison is a sexual predator. There is nothing
embarrassing about this, and we believe this is likely to make the
20200667-CA 22 2023 UT App 34State v. Rallison
jury more sympathetic to Tiffany and more likely to believe that
she did not report to work wanting Rallison to touch her. Then, in
response to the friend laughing at Tiffany’s fear, Tiffany explains
that Rallison was “really rough” during a previous shift and made
her nipple bleed. This is also not likely to cause much
embarrassment or to have any effect other than to harm Rallison’s
case. The jury will then see that the discussion of hypothetical
sexual activity with Rallison is initiated by the friend—who is also
the one who calls Rallison “hot”—and that the friend uses crude
imagery associated with herself—not Tiffany—related to
hypothetical sexual activity with Rallison. Tiffany’s response is
ambiguous at best as far as expressing a desire to engage in sexual
activity with Rallison, and it conveys a fear that he would force
her to engage in sexual activity or fire her. In other words, while
the fact of discussing such hypothetical sexual activity could be
embarrassing, the embarrassment here lies mostly at the feet of
Tiffany’s friend, who is not one of the alleged victims.
Accordingly, we feel that the risk of embarrassment to Tiffany is
low, while the probative value to the issue of consent of the jury
hearing Tiffany’s fear, pain, and reluctance to work with Rallison
is higher. Therefore, while we acknowledge that this item does
reveal intimate information, we conclude that its probative value
outweighs the risk of unfair prejudice. As to a risk of confusion,
we are confident that an appropriate limiting instruction can
guide the jury’s proper use of this evidence. Thus, we decline the
State’s invitation to exclude this item on these alternative
grounds.
CONCLUSION
¶39 We agree with the district court that the admission of items
11 and 12—other than evidence that the cooks slapped each other
on the buttocks—and evidence that servers showed nude selfies
to the cooks is barred by rule 412(a) of the Utah Rules of Evidence.
However, we conclude that the district court exceeded its
20200667-CA 23 2023 UT App 34State v. Rallison
discretion in excluding items 9, 10, and 17—along with evidence
in item 5 that the alleged victims showed Rallison nude selfies and
evidence in item 12 of slapping between the cooks—and we
reverse those rulings.
20200667-CA 24 2023 UT App 34