District Court, Salt Lake Department The Honorable Katie
Bernards-Goodman No. 141913141
Herschel Bullen, Attorney for Appellant.
D. Reyes, Jeanne B. Inouye and Jeffrey D. Mann, Attorneys for
David N. Mortensen authored this Opinion, in which Judges
Kate A. Toomey and Ryan M. Harris concurred.
Defendant Aaron Gasper hosted a house party in the summer of
2014. Following the party, a teenage guest accused Gasper of
twice raping her during the course of the evening. The State
charged Gasper with two counts of rape and sought to admit
evidence under rule 404(b) of the Utah Rules of Evidence of a
previous instance of alleged sexual assault involving Gasper.
The district court admitted the evidence for the noncharacter
purpose of intent and under the doctrine of chances. Gasper
later pled guilty to second degree forcible sexual abuse,
preserving his right to appeal the district court's
ruling admitting the disputed bad act evidence. The district
court subsequently sentenced Gasper to an indeterminate
prison term of one-to-fifteen years, rejecting his request to
impose probation instead of prison. He appeals and we affirm.
In August 2014, Victim attended a friend's birthday party
that Gasper hosted at his home. Victim testified that she let
the party guests know that she had a boyfriend and was not
romantically interested in anyone else. She also tried to
limit her alcohol consumption-she had "two or three
strawberry-flavored ales." At the party, Victim met
Gasper for the first time.
As the party progressed, Gasper repeatedly attempted to
convince Victim to drink shots of alcohol, which she declined
until later in the night. When she finally did drink one of
the shots Gasper offered her, Victim immediately became
nauseated and tired. Gasper, a licensed massage therapist,
then offered to give her a massage. Victim allowed Gasper to
give her a massage with the caution that he "[could not]
touch anything that would normally be covered by [her]
underwear." She then lay on the floor and fell asleep as
he massaged her back.
The next thing Victim remembered was being wakened in the
dark and moved to a couch. She vomited while she was on the
couch, and someone-she believed it was Gasper-gave her a
clean T-shirt to wear. She again fell asleep and awoke the
next morning only to realize that Gasper "was currently
having sex with [her]." Somehow, she had been moved from
the couch to a bedroom, where she awoke to a "burning
and tearing sensation in . . . the vagina and
labia"-with Gasper on top of her.
Victim immediately put on her clothes and went home. Upon
arriving home, she texted a few friends, including her
boyfriend, about what had happened. One of her friends took
her to the police station a few hours later. Afterward, she
went to the emergency room, where medical personnel collected
evidence for a rape kit. She later talked to a police
detective about the incident, stating that she did not give
Gasper any indication she was interested in him and, more
importantly, she did not consent to having sexual intercourse
¶6 Gasper, when later interviewed, admitted to the
police that he had sexual intercourse with Victim when they
were sitting on the couch together while the party was
winding down. When asked about being in the bedroom with
Victim the next morning, he said that he wanted to lie with
her in the bed and that she needed assistance.
Alleged Previous Incident
Prior to trial, the State moved to admit bad act evidence
against Gasper. During the evidentiary hearing on the
State's motion, Witness gave an account of her alleged
experience with Gasper in January 2013. At that time, she and
her brother, (Brother) were living together. Witness
testified that around 10 p.m., Brother brought a couple of
friends home. One of the friends was Gasper.
This was the first time Witness had met him. Witness also
testified that despite her protests, Gasper kept
inappropriately touching her, including her buttocks. She
told Gasper that she had a boyfriend and was not interested
in him, to which Gasper responded, "Oh, I do this all
the time . . . I'll make you feel better." Witness
testified that she "knew [Gasper] was a massage
therapist . . . and that was the indication that he gave me .
. . [that he could] make my ...