Certiorari to the Utah Court of Appeals
District, Salt Lake The Honorable Randall N. Skanchy No.
D. Reyes, Att'y Gen., Tera J. Peterson, Asst. Solic.
Gen., Salt Lake City, for petitioner.
J. Stone, Salt Lake City, for respondent.
Justice Durrant authored the opinion of the Court, in which
Associate Chief Justice Lee, Justice Durham, Justice Himonas,
and Judge Connors joined.
recused himself, Justice Pearce did not participate herein;
Second District Court Judge David M. Connors sat.
AMENDED OPINION [*]
DURRANT, CHIEF JUSTICE.
1 This case requires us to determine whether the doctrine of
chances' four foundational requirements, outlined in
State v. Verde, 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.
Shickles for purposes of a rule 403 balancing
test. 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.
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. 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
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
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 assault examination, and Mr. Lowther's
DNA was matched to the detected semen.
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.
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." At some point during the evening,
she broke up with her boyfriend. Afterward, Mr. Lowther
became "sympathetic" and tried to comfort her.
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.
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. 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.
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 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,  to show that K.S. did not
consent to sexual intercourse with Mr. Lowther.
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.'" 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. 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
 the strength of the evidence as to the commission of the
other crime,  the similarities between the crimes,  the
interval of time that has elapsed between the crimes,  the
need for the evidence,  the efficacy of alternative proof,
and  the degree to which the evidence probably will rouse
the jury to overmastering hostility.
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
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.'" 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." 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." The State appealed, and we granted
certiorari. We have jurisdiction under Utah Code section
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.
Verde with respect to the doctrine of chances.
We review the court of appeals' decision for
correctness. 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." The
appropriate standard of review for a district court's
decision to admit or exclude evidence is "abuse of
discretion." A district court abuses its discretion
when it admits or excludes "evidence under the wrong
legal standard." "[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." 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
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),  but ultimately concluded that the
district court erred when it applied State v.
Shickles to conclude that the witnesses'
testimony was admissible under rule 403. Specifically,
the court of appeals held that the district court should have
looked to the four foundational requirements articulated in
State v. Verde in conducting a rule 403 balancing
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.
Doctrine of Chances Is Not Limited to Rebutting Claims of
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." 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. Since Verde, the
court of appeals has affirmed the use of the doctrine to
rebut lack of intent as a defense. 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
dispute." 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,
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" 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. Below, we discuss more
fully the 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.
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's four foundational requirements have
displaced State v. Shickles for purposes of a rule
403 balancing test. 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)."
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. 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