Certiorari to the Utah Court of Appeals Third District, Salt
Lake The Honorable Katie Bernards-Goodman No. 111900297
D. Reyes, Att'y Gen., Karen A. Klucznik, Asst. Att'y
Gen., Salt Lake City, for appellant
M. Nelson, Joan C. Watt, Salt Lake City, for appellee
Associate Chief Justice Lee authored the opinion of the
Court, in which Chief Justice Durrant, Justice Himonas, and
Judge Bean joined.
recused himself, Justice Pearce does not participate herein;
District Judge Joseph M. Bean sat.
ASSOCIATE CHIEF JUSTICE
Robert Damien Thornton was convicted of multiple counts of
rape, sodomy, and sexual abuse of a twelve-year-old victim,
B.Z. On appeal Thornton challenged a pair of evidentiary
rulings made by the district court. He argued that the
district court erred in admitting evidence of his past
misconduct under Utah Rule of Evidence 404(b) and in
precluding him from questioning the victim about her sexual
history. On the latter point, Thornton argued that he was
entitled to present evidence of the victim's sexual
experience under Utah Rule of Evidence 412 and the Sixth
Amendment of the U.S. Constitution.
The court of appeals reversed Thornton's conviction.
State v. Thornton, 2014 UT App 265, 339 P.3d 112. It
found error in the admission of evidence of Thornton's
past misconduct-of his alleged sale of drugs to B.Z.'s
mother and encouragement of B.Z's mother's
prostitution. Specifically, the court of appeals held that
the district court erred in failing to perform a
"scrupulous examination" of the character evidence
introduced by the prosecution. Id. ¶ 38. For
years our cases have used this phrase in describing the
district court's role in assessing character evidence
under rule 404(b). See, e.g., State v.
Decorso, 1999 UT 57, ¶ 18, 993 P.2d 837; State
v. Lucero, 2014 UT 15, ¶ 37, 328 P.3d 841. The
court of appeals took that requirement to encompass a duty to
assess the drug and prostitution evidence
separately. Thornton, 2014 UT App 265,
¶ 40. And because the district court lumped the two
sub-classes of character evidence together in its analysis
under rule 404(b), the court of appeals found error. It also
deemed the error prejudicial.
We reverse the court of appeals and reinstate the judgment of
conviction. We find no error in the district court's
evidentiary ruling because we affirm its decision admitting
evidence of Thornton's alleged involvement in the drug
transactions and prostitution at issue in the case. And we
emphasize that the appellate review of evidentiary rulings is
on the decision made at trial, not the process by which that
decision is reached. In so concluding, however, we
acknowledge that our prior decisions leave room for the
approach taken by the court of appeals. We accordingly
repudiate the language in our prior opinions that speaks of
"scrupulous examination" of character evidence
under rule 404(b)-finding that such language is more
confusing than helpful.
We also affirm the court of appeals' decision affirming
the district court's denial of Thornton's bid to
present evidence of the victim's prior sexual history
under rule 412 and the Sixth Amendment. We recognize that the
Confrontation Clause sometimes entitles a defendant to
question a witness about an essential element of his defense.
But the defendant failed to lay a foundation for any such
argument here. On this record, Thornton cannot show that his
interrogation of the victim as to her sexual experience was
essential to a foundational element of his defense. And we
accordingly conclude that there was no error in the district
court's refusal to allow him to present this evidence to
Facts and Trial Court Proceedings
Twelve-year-old B.Z. lived with her mother and stepfather in
a two-bedroom apartment. After B.Z.'s stepfather was
incarcerated her mother began renting out one of the rooms.
Thornton became one of the tenants. He moved into the
apartment with his girlfriend. The two of them stayed in
B.Z.'s bedroom. B.Z. slept in the front room most of the
time but would occasionally sleep in her bedroom.
B.Z.'s mother had long suffered from serious
substance-abuse problems. She was addicted to methadone,
which she took to deal with chronic pain. To treat that
addiction, she went to a methadone clinic each morning.
Thornton allegedly was a drug dealer. For a time he agreed to
provide B.Z.'s mother with crack cocaine in lieu of rent.
After a few months, however, Thornton told B.Z.'s mother
that she would have to begin paying for the drugs he was
giving her. He also allegedly encouraged her to engage in
prostitution to make money to pay for the drugs. She did so.
She brought clients home and had sex with them in the
apartment. B.Z. was aware that her mother was a prostitute
and was having sex with various men in the apartment.
As her mother's addiction intensified, B.Z. was
increasingly neglected. She stopped attending school even
though she had once been earning "A" grades. And
she was often left unfed and without much attention from her
Thornton's girlfriend was arrested about a month after
she and Thornton moved into the household. Thornton began
flirting with B.Z. shortly thereafter. He began to touch her
in sexually suggestive ways, such as patting her on the
buttocks. Eventually, one morning while B.Z.'s mother was
at the methadone clinic, Thornton dragged B.Z. into the
bedroom and forced her to have sex with him.
After the first rape, Thornton continued to force himself
upon B.Z. He did so each morning while her mother was at the
clinic. While at first she fought him off, she eventually
surrendered. And she began to develop what she perceived as
romantic feelings for him-feelings she expressed in letters.
Thornton also gave B.Z. a Christmas present and showered her
At first B.Z. did not say anything to her mother about the
rape. She felt that her mother was too addicted to drugs to
care and too dependent on Thornton to do anything about it.
B.Z. also noted that her relationship with her mother had
deteriorated as Thornton became increasingly abrasive and
hostile toward the mother. Thornton also threatened B.Z. with
violence if she revealed what he had done.
After a couple of months B.Z. finally told her mother that
Thornton had been having sex with her. She also declared that
she believed she was pregnant with Thornton's child. The
mother did not call the police herself because she had an
outstanding warrant against her. But she told her neighbor
about the rape. The neighbor called the police, who came and
arrested both Thornton and B.Z.'s mother.
B.Z. was taken to a group home and asked about the sexual
abuse. At first she denied the abuse. But in a subsequent
interview she told the detectives that Thornton had
repeatedly raped her.
By the time B.Z. was examined by medical staff, it was too
late to perform a rape test. A pregnancy test revealed that
she was not pregnant. And the medical professionals found no
physical evidence of rape. Yet B.Z. told investigators that
after sex Thornton would wipe himself off on a brown sweater
in their room. And forensic testing found evidence of
Thornton's semen on the sweater.
Thornton was charged with multiple counts of rape of a child,
sodomy of a child, and aggravated sexual abuse of a child. He
was tried three times. The first trial ended in a mistrial.
The second resulted in a hung jury. On the third trial the
jury finally reached a verdict. It found Thornton guilty on
At each of the three trials two evidentiary disputes came to
the fore. The first involved the State's attempt to
introduce evidence that Thornton had supplied B.Z.'s
mother with drugs and had encouraged her involvement in
prostitution. At the first trial the parties stipulated to
exclude this evidence. But a mistrial ensued when the mother
volunteered information about Thornton's role in her
prostitution-in response to (permitted) questions about her
time as a prostitute. At the second trial the parties entered
into the same stipulation. And this time the stipulation was
honored-the evidence was not admitted. The result, as noted,
was a hung jury.
Before the third trial, the State moved for admission of this
evidence under rule 404(b). The State's basis for
admission was that the evidence was relevant to a
non-character purpose-to helping the jury understand the
circumstances that gave Thornton the opportunity to abuse
B.Z., and that discouraged her from coming forward sooner.
The district court granted the State's motion. It allowed
the evidence to be admitted with a limiting instruction. The
instruction indicated that the evidence was to be considered
only "for the limited purpose of determining
Defendant's position of power or trust in the household
or in understanding the victim's behavior." Jury
Instruction No. 28. It also stated that the evidence
could not be used to establish Thornton's character or
propensity to commit crime. Id.
Thus, the district court concluded that the evidence of
Thornton's drug dealing and involvement in B.Z.'s
mother's prostitution was essential to provide a relevant
narrative. It therefore held that the evidence served a
legitimate non-character purpose under rule 404(b). And it
also determined that the evidence was relevant and not unduly
The second category of disputed evidence involved the sexual
history of the victim. Around the time of Thornton's
sexual acts against B.Z., she was also engaged in a
consensual sexual relationship with a fourteen-year-old
friend of hers. Thornton sought to question B.Z. about this
relationship in order to rebut the assumption that as a
twelve-year-old she would be sexually innocent.
At the start of the first trial, the judge held that B.Z.
could not be asked about her sexual history. In so ruling the
judge concluded that this evidence was not essential to the
defense because "Defendant had several other means by
which he can establish that B.Z. had sexual knowledge well
beyond that of a traditional twelve-year-old."
Ruling and Order at 6 (Sept. 14, 2011). With this in
mind, the court concluded that introduction of evidence of
B.Z.'s sexual history "would do little more than
damage [B.Z.'s] integrity among a jury[, ] which is the
very problem Rule 412 seeks to address." Id. at
B.Z. presented detailed testimony about the rape at trial.
She testified that the sex "hurt really bad" and
felt like she "was being ripped open." Trial
Transcript at 28 (Sept. 25, 2012). She remembered that
it had "stung really bad" and that she had
"white gooey stuff" in her urine. Id.
After B.Z. testified, the defense asked the court to
reconsider its exclusion of the rule 412 evidence. But the
trial judge denied that motion.
This played out similarly in the second and third trials.
Thornton renewed his motion for reconsideration and the trial
judge again denied it. And B.Z. testified at each trial along
the same lines.
When cross-examining B.Z., the defense asked her about the
fact that her mother was a prostitute and asked how she knew
about it. But the defense did not ask B.Z. what she might
have learned from her mother's descriptions of or
involvement in prostitution. Nor did counsel ask the judge to
conduct an in camera review to show that B.Z.'s
familiarity with sex could not have come from her
interactions with her mother or her knowledge of her
mother's prostitution. And Thornton did not contend-in
closing argument or otherwise-that B.Z. was able to describe
sex acts because of knowledge gained from her mother.
In closing argument the State characterized B.Z. as a child
in a couple of contexts. It suggested that her youth
explained early inconsistencies in her statements to the
police or her infatuated love letters. And it asserted that
someone of her age would not have known about the semen on
the sweater had she not been there to witness it. But the
prosecution did not claim that B.Z.'s youth confirmed the
truthfulness of her descriptions of sexual sensations. It did
not assert, in other words, that a child of her age could not
have described sex in the way she did unless she had been
The jury found Thornton guilty on all counts in the third