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State v. Lowther

Supreme Court of Utah

June 19, 2017

State of Utah, Petitioner,
v.
John Marcus Lowther, Respondent.

         On Certiorari to the Utah Court of Appeals

         Third District, Salt Lake The Honorable Randall N. Skanchy No. 111900725

          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.

          AMENDED OPINION [*]

          DURRANT, CHIEF JUSTICE.

         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. Shickles[2] 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. 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 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.

         ¶ 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 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 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. Verde[15] with respect to the doctrine of chances. We review the court of appeals' decision for correctness.[16] 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. Shickles[23] 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 requirements articulated in State v. Verde[25] 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.

         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 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 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's[34] four foundational requirements have displaced State v. Shickles[35] 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)."

         ¶ 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 ...


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