District Court, Salt Lake Department The Honorable Randall N.
Skanchy No. 131910817
Marshall M. Thompson and Andrea J. Garland, Attorneys for
D. Reyes and Jeffrey S. Gray, Attorneys for Appellee
Diana Hagen authored this Opinion, in which Judge Kate
Appleby  concurred.
Howard Wayne Hood appeals his convictions for rape and
forcible sodomy. Before trial, Hood sought to exclude
evidence that he had been excommunicated from The Church of
Jesus Christ of Latter-day Saints, arguing that the evidence
was inadmissible "other act" evidence under rule
404(b) of the Utah Rules of Evidence. The district court
admitted the evidence to explain the context of Hood's
relationship with the alleged victim. We conclude that this
was a proper, non-propensity purpose and that the evidence
was relevant to assessing the victim's credibility on the
question of consent. But because we also conclude that the
danger of unfair prejudice substantially outweighed the
probative value of the evidence and that its admission was
harmful, we vacate Hood's convictions and remand for a
Between Hood and W.B.
Hood met the alleged victim, W.B., on a dating website in
March 2013. W.B. was a member of The Church of Jesus Christ
of Latter-day Saints and assumed that Hood was as well
because his profile picture showed a photograph of the
church's founder in the background. According to W.B., on
their first date, Hood told her he had not gone to church for
some time but had attended that same day and wanted to resume
his involvement in the church. He said he was grateful to
meet someone like her who was a member so that she could help
him come back into "full fellowship" with the
church. At trial, W.B. explained that "full
fellowship" means taking steps to "live the
teachings of the gospel" and being able to "take
the sacrament" and "receive further blessings."
At some point, Hood disclosed to W.B. that he had been
excommunicated from the church.
Over the next several months, Hood and W.B. continued dating,
but their relationship was volatile and involved a series of
breakups and reconciliations. W.B. acknowledged that the
couple had engaged in various acts of sexual intimacy short
of intercourse during their relationship. She testified that
although such physical intimacy before marriage conflicted
with her religious beliefs, Hood manipulated her into
submitting to these acts.
W.B. also testified that she told Hood she would not engage
in premarital sexual intercourse because church doctrine
forbade it. Despite knowing her opposition, Hood once pushed
her against the kitchen wall and penetrated her vaginally and
anally with his penis while saying, "Isn't this a
fun game we're playing?" According to W.B., she told
Hood, "No, . . . this isn't fun." After this
incident, she met with her ecclesiastical leader, the bishop,
and confessed that she "had allowed" the act even
though she did not want it to happen. She testified that the
bishop counseled her to refrain from participating in the
sacrament for three weeks.
At trial, Hood painted a different picture of the
couple's relationship. He testified that W.B. was eager
to engage in sexual activity, including oral sex and
intercourse, and "never talked to [him] about not
wanting to have sex because she was taking her religion
seriously." Hood testified that he and W.B. talked
little about religion and that the topic was not central to
their relationship. According to Hood, they had a sexual
relationship for months before he told W.B. that he was
trying to return to the church after having been
On October 19, 2013, W.B. left Hood's apartment after an
argument, inadvertently leaving her checkbook there. That
night, Hood sent her a text that she had forgotten her
checkbook, and W.B. responded, asking if she could retrieve
it the next day. Because of the argument, she suggested he
hand her the checkbook at the door if he did not want her to
come into the apartment. But when she arrived the next day,
Hood hugged her and told her he was sorry for what had
happened. W.B. testified she felt ill that morning and told
Hood that she was "really tired." He led her into
his bedroom and suggested she take a nap.
W.B. testified that, after she fell asleep, Hood entered the
room, removed her pants, and performed oral sex on her. When
she woke, Hood held her down and ignored her pleas to stop.
According to W.B., she was sobbing when Hood put on a condom.
She begged, "No, Howard, no," then froze in
"complete and utter shock" while he raped her.
In contrast, Hood testified that W.B. initiated the encounter
by suggesting they take a nap together. According to Hood,
they began "making out" in the bedroom and he
performed oral sex on W.B. only after she asked him to give
her an orgasm. Hood testified that, after the oral sex, he
retrieved condoms from his car before returning to the
bedroom to have intercourse with her.
to Exclude Under Rule 404(b)
The State charged Hood with one count of rape and one count
of forcible sodomy. At trial, Hood voiced concern over
whether the State intended to elicit testimony regarding his
excommunication from the church. Hood acknowledged that
although it may be permissible to explain that he was not a
church member, it was a 404(b) issue "to say he's
been excommunicated in the past." The district court
initially agreed that there was "no reason" for
such evidence. The State objected, arguing that Hood's
excommunication was a central component of his relationship
with W.B. The State explained that W.B. would testify that
"Hood made it very clear that he was excommunicated, but
that he wanted to come back to the church and that . . . plea
for help, spiritually speaking, was one of her reasons for
staying in contact with him." The State posited that
Hood's excommunication and his professed desire to return
to the church were "very probative of why [W.B.]
maintain[ed] contact with this person who [was] making . . .
repeated [sexual] overtures."
Hood conceded that W.B. could testify that he "left the
church, . . . he wasn't a member, he's trying to come
back to the church," but he objected to the admission of
evidence that he had been excommunicated. The district court
questioned whether it was possible to "shape or mold
[W.B.'s] testimony beyond what the facts actually
are" to avoid mentioning the excommunication. It noted
that Hood's status in the church was "a fairly
central part of the ongoing relationship between these
parties" and ruled that it would allow Hood's
statements to W.B. regarding his excommunication.
of Excommunication Evidence at Trial
At trial, the State presented evidence that Hood had been
excommunicated from the church but never disclosed what Hood
did to merit that sanction. In its opening statement, the
State referred to Hood's professed desire to "get
back [to being] active in the church" and his pleas for
W.B. to help him do so as the method he used to manipulate
W.B. into forgiving him and staying in the relationship. The
prosecutor did not use the term "excommunication"
or otherwise refer to official church discipline.
During trial, however, the State elicited testimony about
Hood's excommunication from three witnesses. First, W.B.
testified that Hood told her he had been excommunicated.
Because he had lost his membership in the church, Hood told
her that he needed to "retake the discussions" with
the church missionaries and then "be found worthy to be
rebaptized to be able to have the blessings of the gospel in
Second, during cross-examination, Hood confirmed that he told
W.B. of his excommunication. In a subsequent line of
questioning, the State reiterated that Hood had been
"officially excommunicated from the church."
Third, the State offered testimony from Hood's ex-wife
about his excommunication. She testified that, soon after
they met, Hood told her he "was trying to get in good
standing with the church because he had been
excommunicated." She explained that "there's
certain things that if you do them, like morality, different
things like that, then you have to go and confess to your
bishop or stake president or whatnot, and then . . . they
hold a council, and if they find that you're lacking,
they can excommunicate you." Hood's ex-wife
testified that obeying the "law of chastity" was
important to maintaining good standing in the church.
In its closing argument, the State directly referred to
Hood's excommunication. The prosecutor argued that
Hood's professed "interest in rekindling the flame
of faith" explained why the "naïve" and
"religious" W.B. continued to forgive and wanted to
"believe that he will be better."
The jury convicted Hood of rape and forcible sodomy. He