This opinion is subject to revision before final
publication in the Pacific Reporter.
2013 UT 50
IN THE
SUPREME COURT OF THE STATE OF UTAH
———————
STATE OF UTAH,
Plaintiff and Appellee,
v.
CAMERON HEATH RICHARDSON,
Defendant and Appellant.
———————
No. 20110168
Filed August 9, 2013
———————
Third District, Salt Lake
The Honorable Vernice Trease
No. 101901649
———————
Attorneys:
John E. Swallow, Att‘y Gen., Karen A. Klucznik, Asst. Att‘y Gen.,
Bradford D. Cooley, Salt Lake City, for appellee
E. Rich Hawkes, Michael D. Misner, Salt Lake City, for appellant
———————
JUSTICE LEE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE DURHAM, and JUSTICE PARRISH joined.
———————
JUSTICE LEE, opinion of the Court:
¶1 Cameron Richardson appeals from convictions for rape
and forcible anal sodomy. He claims error in his trial in the exclu-
sion of evidence of the specific nature of his prior sexual relation-
ship with the victim—evidence he claims was properly admissible
under Utah Rule of Evidence 412(b)(2)(A). We agree. We hold that
the trial court misconstrued this rule to incorporate a heightened
standard of relevance, and we reverse and remand for a new trial.
I
¶2 In February 2010, Richardson lived with the victim and her
two young children from a previous relationship. The couple
STATE v. RICHARDSON
Opinion of the Court
went to bed one night after spending the evening watching mov-
ies while the victim‘s children slept in a separate room nearby.
Once in the bedroom, the couple argued about the victim‘s recent
trip to California and her relationship with a man there.
¶3 Though Richardson and the victim agree on this sequence
of events, their versions of what transpired after this point di-
verge. Richardson maintains that after the argument, he and the
victim engaged in consensual oral and anal ―make-up sex.‖ The
victim alleges that the verbal argument turned physical and end-
ed with Richardson assaulting her and forcing her to have oral,
vaginal, and anal sex.
¶4 According to the victim, Richardson became angry during
the argument and issued two ultimatums: He stated that if the
victim did not willingly engage in anal sex with him, he would
call Child Protective Services and have her children taken away,
presumably for some unspecific infraction. And he warned that
he would force her to have anal sex if she refused to do so willing-
ly. The victim testified that she repeatedly refused to comply, and
when she tried to leave the bedroom, Richardson blocked her
path, grabbed her arms, and pushed her toward the bed. A strug-
gle then ensued, during which the victim admits to hitting Rich-
ardson on his side, which prompted him to hit her three times in
her rib area.
¶5 The struggle ended with the victim lying on her back on
the bed with her head ―hanging off the bed.‖ She alleged that,
while she was in this position, Richardson bent over her and
forced her briefly to ―give him oral [sex].‖ When it ended, she
rolled onto her side, and Richardson put his hand on the side of
her neck and squeezed her neck ―off and on‖ so hard that she
could not breathe and felt like her ―eyes were going to pop out.‖
She testified that she ―scream[ed] for help throughout the strangu-
lation‖ but that Richardson told her he would kill her if she didn‘t
―muffle her screams.‖ Though the victim testified that she
screamed ―[a]t the top of [her] lungs,‖ apparently none of her
neighbors called the police to report screaming. After the alleged
choking, according to the victim, the couple struggled again, with
Richardson eventually subduing the victim. He then bent her over
the bed (the top half of her body lying on the bed and her knees
on the floor), ripped off her pants, and took off her underwear.
Though the victim reportedly told Richardson no and tried to get
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away, he restrained and warned her that ―the more you fight and
struggle, the worse it‘s going to be on you.‖
¶6 According to the victim, Richardson next applied lubricant
to his penis and penetrated her vaginally for about twenty se-
conds. He then penetrated her anally, stating, ―[i]f you pretend
like you like this it‘ll be over soon. If you start acting like you like
it[,] I might not be so rough.‖ In response, the victim continued to
say no, to scream, and to ask for help, but was told again to be
quiet. After several minutes, Richardson ejaculated in the victim‘s
anus.
¶7 The victim testified that after the physical and sexual as-
saults ended, Richardson forced her to call the man she had a rela-
tionship with in California and ask him to come get her. So, with
Richardson listening by speakerphone, she called the man‘s num-
ber and spoke first to his mother. Though the victim testified that
she did not tell the mother about the assaults because Richardson
was listening, the mother reported to police that the victim told
her on the phone about the assaults and rape. She eventually
spoke with her friend, who stated that he would try to get there as
soon as possible.
¶8 After that call, Richardson eventually fell asleep. Though
she testified that she was experiencing pain and other physical
discomfort as a result of the assaults, the victim did not call the
police. Instead, she texted her mother (around 4:00 a.m.), saying
that she had a ―dire emergency,‖ that she was ―no longer safe
around [Richardson],‖ and that she ―need[ed] a safe place to go
[ASAP].‖ She asked her mother to come get her and her children,
but her mother had taken painkillers and did not feel comfortable
driving, and told the victim to lock herself in her children‘s bed-
room and wait. The victim testified that she did so until her chil-
dren woke up around 8:00 a.m., after which she got them dressed
and left the apartment on foot with as many belongings as she
could carry.
¶9 According to the victim, as she was walking down the
street with her children, a woman in a silver Mercedes or BMW
stopped her and gave her $100 to feed her children. And though
the victim testified that the woman eventually gave her a ride to
her mother‘s house, her mother testified that the victim arrived at
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STATE v. RICHARDSON
Opinion of the Court
her house in a cream-colored Jeep—the same type of vehicle that
the victim and Richardson shared at the time.
¶10 The victim‘s mother testified that upon arriving, the victim
was weak, tired, scared, and in so much pain that she couldn‘t
walk normally or sit without assistance. Over the next several
hours, Richardson called and texted the victim multiple times and
eventually arrived at her mother‘s house. After initially refusing
to leave, Richardson left when the victim‘s mother threatened to
call the police, but only went as far as the street opposite the
house. Eventually, the victim‘s mother did call the police, who
took the victim to the hospital.
¶11 There she was examined by a nurse, who observed pete-
chia, bruises, scratches, and redness on the victim‘s body that
were consistent with attempted strangulation and forced vaginal
and anal sex. At trial, however, Richardson countered this conclu-
sion with testimony from an expert who opined that at least some
of the victim‘s physical injuries were inconsistent with her version
of events.
¶12 A police officer later spoke with Richardson, who claimed
that the couple had engaged in consensual oral and anal ―make-
up sex.‖ And though he denied punching the victim in her ribs, he
admitted ―that he had put a hand on her neck‖ but that he did not
know if he put any pressure on her neck to prevent her from
breathing.
¶13 Richardson was charged with aggravated kidnapping (a
charge that was later dropped), two counts of forcible sodomy
(one count for forced oral sex, one count for forced anal sex), rape,
aggravated assault, and two counts of domestic violence in the
presence of a child.
¶14 Before trial, Richardson filed a motion to introduce evi-
dence of the victim‘s prior conviction for lying to police officers
about a sexual assault (which was granted and not appealed), and
evidence of prior instances of sexual conduct between him and
the victim under Utah Rule of Evidence 412. Specifically, Richard-
son wanted to offer evidence that he and the victim had engaged
previously in ―consensual instances of oral sex, sex while the al-
leged victim was having her period and anal sex between the two
parties.‖ He informed the court that he wanted to bring the evi-
dence in through his own testimony or through the testimony of
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Opinion of the Court
other witnesses—particularly the victim—and that the evidence
―would be offered to prove consent as allowed under Rule
412(b)(2)(A)(a)‖ and as ―impeachment evidence as the alleged vic-
tim has testified to the contrary at preliminary hearing.‖
¶15 At a hearing on the motion, defense counsel argued that
the sexual history evidence was necessary to show that the anal
sex in question was consensual because some jurors might pre-
sume that this type of intercourse is nonconsensual. He also ar-
gued that the evidence was proper under rule 412 because it
helped prove consent by contextualizing the couple‘s sexual rela-
tionship and establishing a pattern of consensual anal sex between
the parties. Though defense counsel stated that how and when the
evidence came in would be a strategic trial decision, he argued
that Richardson ―[a]t least‖ should be allowed to testify to it.
¶16 Though the State conceded and the trial court agreed that
Richardson should be allowed to present general evidence that he
and the victim had a sexual relationship, the court considered the
more detailed evidence about previous anal intercourse during
menstruation to be inadmissible, reasoning that ―[i]f there is no
evidence or argument . . . that the anal intercourse was non-
consensual because they hadn‘t engaged in it previously or it was
unusual or something of that nature . . . , then I don‘t know[,]
whether or not they‘d had it before, that [the] particular type of
intercourse is relevant to the case here.‖ He likewise stated that
―[i]f there is no evidence or argument that she doesn‘t engage in
intercourse when she‘s menstruating or something of that nature,
then I‘m not sure what the relevance is as to [consent].‖ Further,
the court opined that it wouldn‘t ―assume that jurors are going to
think any kind of anal intercourse is presumptively non-
consensual, especially in this day and age.‖
¶17 The trial court thereafter issued the following ruling:
Absent evidence or argument from the State that the
parties had never engaged in consensual anal inter-
course, or that the charged sexual misconduct should
be considered particularly humiliating or embarrass-
ing value because it involved anal sex, the proffered
testimony regarding prior consensual anal sex is not
sufficiently relevant to be admissible under Utah R.
Evid. 412(b)(2)(A).
5
STATE v. RICHARDSON
Opinion of the Court
It also ordered that
Defendant may not present evidence of prior in-
stances of sexual behavior between himself and the
alleged victim unless and until the State opens the
door, either by presenting testimony that the parties
had never engaged in consensual anal intercourse,
or by arguing that anal intercourse was forced by
the Defendant as a means of humiliating or degrad-
ing the alleged victim.
¶18 At trial, the State did not argue that the couple never en-
gaged in consensual anal sex or that anal sex was aimed at de-
grading the victim, and Richardson did not testify. Though Rich-
ardson was ultimately acquitted of aggravated assault, forcible
oral sodomy, and commission of domestic violence in the pres-
ence of a minor, he was convicted of vaginal rape and forcible
anal sodomy. On appeal, Richardson claims that the trial court‘s
exclusion of the sexual history evidence under rule 412(b)(2)(A)
was error and that the exclusion violated his constitutional rights.
We agree with the former point and do not reach the latter.
II
¶19 Utah Rule of Evidence 412 broadly prohibits admission of
―evidence offered to prove that a victim engaged in other sexual
behavior‖ or ―evidence offered to prove a victim‘s sexual predis-
position.‖ UTAH R. EVID. 412(a) (2010).1 Even if this kind of evi-
dence is relevant in some way to an element of the crime at issue,
we have determined that its ―unusual propensity to unfairly prej-
udice, inflame, or mislead the jury‖ or ―to distort the jury‘s delib-
1 Updates to the Utah Rules of Evidence became effective De-
cember 1, 2011. Those changes were stylistic in nature. UTAH R.
EVID. 412, 401, 402 advisory committee‘s note (2011) (―The lan-
guage of this rule has been amended as part of the restyling of the
Evidence Rules to make them more easily understood and to
make style and terminology consistent throughout the rules. The-
se changes are intended to be stylistic only. There is no intent to
change any result in any ruling on evidence admissibility.‖). So,
while we cite the rules in effect at the time of Richardson‘s trial,
our discussion is equally applicable to the rules as they now
stand.
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Opinion of the Court
erative process‖ requires its exclusion. See UTAH R. EVID. 412 advi-
sory committee‘s note (internal quotation marks omitted).2
¶20 This general prohibition is subject to several exceptions,
however, which allow ―specific instances of the accuser‘s past
sexual behavior to be admitted.‖ State v. Tarrats, 2005 UT 50, ¶ 20
n.1, 122 P.3d 581; UTAH R. EVID. 412(b) (2010). The exception at is-
sue in this case, rule 412(b), states that ―evidence of specific in-
stances of sexual behavior by the alleged victim with respect to
the person accused of the sexual misconduct offered . . . by the ac-
cused to prove consent‖ is admissible if it ―is otherwise admissi-
ble‖ under our evidentiary rules.
¶21 The sexual history evidence proffered by Richardson falls
squarely within this exception. He proposed to present ―specific
instances of sexual behavior‖ with the victim—that the two had
engaged in consensual anal sex while the victim was menstruat-
ing. And with that evidence he sought to ―prove consent,‖ by
suggesting that the precise behavior he was charged with (anal
sex while the victim was menstruating) was the kind of behavior
he and the victim had engaged in consensually in the past. Under
rule 412(b), the only remaining question is whether this evidence
was ―otherwise admissible‖ under the rules of evidence.
¶22 The trial court relied on this caveat to exclude the evidence
after the pretrial hearing, concluding that the evidence is ―not suf-
ficiently relevant to be admissible under‖ rule 412(b)(2)(A). Rich-
ardson contends that this was error. He insists that there is no
―heightened relevancy test for evidence of specific instances of
sexual activity between an alleged victim and the accused,‖ and
asserts that the evidence should have been admitted because it
was relevant under the lenient standards of rules 401 and 402.
¶23 We agree. The trial court‘s exclusionary ruling was based
on a misunderstanding of rules 401 and 402. We reverse in light of
that threshold legal error, which of course is not a matter on
2 See also State v. Boyd, 2001 UT 30, ¶ 46, 25 P.3d 985 (―Rule 412
safeguards the alleged victim from the invasion of privacy, poten-
tial embarrassment and sexual stereotyping that is associated with
public disclosure of intimate sexual details and the infusion of
sexual innuendo into the fact finding process.‖ (internal quotation
marks omitted)).
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STATE v. RICHARDSON
Opinion of the Court
which any deference is owing to the trial court. See Barrientos ex
rel. Nelson v. Jones, 2012 UT 33, ¶ 8, 282 P.3d 50 (review of trial
court‘s interpretation of the rules of evidence is for correctness).
We further conclude that Richardson did not waive or lose his
ability to challenge this error on appeal and that the error preju-
diced his defense. And we accordingly reverse Richardson‘s con-
victions and remand for a new trial.
A
¶24 By rule, ―relevant evidence means evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence.‖ UTAH R. EVID. 401 (2010).
Relevant evidence is presumptively admissible; irrelevant evi-
dence is not. UTAH R. EVID. 402. Together these rules establish a
―very low‖ bar that deems ―even evidence with the slightest pro-
bative value‖ relevant and presumptively admissible. State v. Mar-
tin, 2002 UT 34, ¶ 34, 44 P.3d 805 (internal quotation marks omit-
ted).3
¶25 Richardson‘s proffered evidence easily clears this low bar.
Here, ―the fact . . . of consequence‖ is consent or, specifically,
whether the victim consented to anal sex with Richardson on the
night of the incident. Thus, any evidence that tends to make con-
sent ―more or less probable‖ is relevant.4 The excluded evidence
makes consent more probable here because it contextualizes the
victim‘s sexual relationship with Richardson. Through evidence
that was admitted, the jury knew that Richardson and the victim
were in a relationship and lived together at the time of the inci-
dent. Indeed, the State conceded at the hearing on the 412 motion
that the defense could properly present evidence that the two had
3 See State v. Jaeger, 1999 UT 1, ¶ 13, 973 P.2d 404 (―[B]ecause the
standard for determining whether evidence is relevant is so low,
the issue of whether evidence is relevant is rarely an issue.‖).
4 C.f. People v. Adair, 550 N.W.2d 505, 512–13 (Mich. 1996) (hold-
ing that evidence of past atypical sexual activity between the ac-
cused and the alleged victim was not admissible under Michi-
gan‘s rule 412 given the defense‘s stance that the allegedly wrong-
ful sexual conduct never occurred rather than that it was consen-
sual).
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Opinion of the Court
a sexual relationship. The excluded evidence merely added detail
to that knowledge. If the general evidence of a sexual relationship
was relevant, the more detailed evidence was as well.
¶26 That detail was relevant to consent. Rule 412(b)(2)(A) rests
on the notion that a person is more likely to consent to sex with a
past sexual partner. See Wood v. Alaska, 957 F.2d 1544, 1551 (9th
Cir. 1992) (―[T]he victim‘s prior acts with the defendant can shed
considerable light on her attitude toward having sex with him [at
the time of the incident].‖).5 That premise is in no way under-
5 C.f. Michigan v. Lucas, 500 U.S. 145, 148–52 (1991) (indicating
that prior sexual conduct with the accused is relevant to the issue
of consent); United States v. Ramone, 218 F.3d 1229, 1235 (10th Cir.
2000) (stating that ―proffered evidence of [the accused] sexual re-
lationship with the victim . . . which included evidence of specific
sexual acts with inanimate objects squarely fits within Rule 412[‗s
exception]‖); Wood v. Alaska, 957 F.2d 1544, 1551 (9th Cir. 1992)
(―[T]he Supreme Court has also indicated that prior sexual con-
duct with the defendant is relevant to the issue of consent.‖);
George v. Commonwealth, No. 2001-SC-1067-MR, 2003 WL
22227195, at *2 (Ky. Sept. 18, 2003) (―[P]ast sexual behavior be-
tween the alleged victim and the defendant is relevant and is gen-
erally admissible on the issue of consent.‖); State v. Ginyard, 468
S.E.2d 525, 530 (N.C. Ct. App. 1996) (―[P]rior consent from a com-
plainant to the defendant on trial is relevant to the complainant‘s
subsequent consent to that defendant . . . .‖); State v. Johnson, No.
M2001-01973-CCA-R9-CD, 2002 WL 992402, at *3 (Tenn. Crim.
App. May 15, 2002) (―[A]s indicated by the exception set forth in
[Tennessee‘s rule 412(b)(2)(A)], evidence that the defendant‘s ac-
cuser has previously engaged in consensual sexual behavior with
the defendant is relevant to the issue of consent.‖); State v. Go-
nyaw, 507 A.2d 944, 946–47 (Vt. 1985) (disagreeing with the trial
court‘s statement that evidence of a past sexual relationship be-
tween the victim and accused ―could never have probative value,‖
and stating that ―consensual sexual activity over a period of years
[between the accused and the victim], coupled with a claimed
consensual act reasonably contemporaneous with the act com-
plained of, is clearly material on the issue of consent‖ and that the
trial court could only exclude the evidence ―if its probative value
outweighed its private character‖).
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STATE v. RICHARDSON
Opinion of the Court
mined by contextualizing detail about the nature of the sexual re-
lationship. If a person is more likely to consent to sex with a past
sexual partner, she is also more likely to consent to the kind of
sexual relations she has had with a partner in the past. Additional,
contextualizing detail can hardly undermine the relevance of such
evidence.
¶27 The trial court‘s contrary ruling was premised on a misun-
derstanding of rule 401 or rule 402 or both. In excluding Richard-
son‘s evidence, the trial court seemed to labor under the impres-
sion that the evidence had to be not only minimally relevant but
significantly so. But our relevance rules are binary. They provide
only that relevant evidence is presumptively admissible and irrel-
evant evidence is not. And they define relevance in binary terms:
Either evidence is relevant because it makes a fact of consequence
more or less probable, or it is not because it does not.
¶28 Rule 412(b)(2)(A) does nothing to alter the standard. It reaf-
firms it by incorporating by reference the admissibility principles
elsewhere in our rules—by establishing that evidence of specific
instances of the victim‘s past sexual conduct with the accused
may be admitted to prove consent if it is ―otherwise admissible‖
under the rules.
¶29 The binary standard of relevance in our rules leaves no
room for an evaluation of whether evidence of Richardson‘s past
anal intercourse with the victim was ―sufficiently relevant.‖ Either
it was relevant or it wasn‘t; and in this case it was for reasons not-
ed above. Perhaps it could be said, as the trial court did, that
Richardson‘s proffered evidence was not necessary ―in this day
and age‖ to counter the notion that anal intercourse is always
nonconsensual. But that was not the only purpose of the evidence.
And in any event, relevance turns on tendencies (to make a matter
of consequence more or less probable) not necessities. The prof-
fered evidence was clearly relevant in providing contextualizing
detail regarding Richardson‘s past sexual relationship with the
victim,6 and on that basis it was admissible under our rules.
6 State v. Yenser, 889 N.E.2d 581, 584 (Ohio Ct. App. 2008) (hold-
ing that evidence that the victim had previously engaged in con-
sensual anal sex with the accused was relevant to whether the vic-
tim had consented to the anal sex at issue).
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¶30 In the abstract, perhaps the notion that Richardson‘s prof-
fered evidence was ―not sufficiently relevant‖ could be construed
as a determination that the evidence was inadmissible under rule
403—on the ground that its probative value was substantially
outweighed by a danger of unfair prejudice or confusion of the
issues. But in the context of this trial record, it is quite apparent
that the trial court‘s decision was premised on our rules of rele-
vance (as incorporated in the ―otherwise admissible‖ clause of
rule 412(b)(2)(A)).
¶31 At the hearing on the rule 412 motion, the trial court ex-
pressed its concerns about the proffered evidence in terms of its
relevance to consent rather than the dangers it presented. The
written order is along the same lines. It sets up the issue to be de-
cided as one of relevance, and nowhere mentions any of the prob-
lems that can keep evidence out under 403. And although defense
counsel briefly mentioned rule 403 at the hearing on the rule 412
motion, neither the State nor the trial court intimated that the evi-
dence failed the rule 403 balance. In fact, the trial court seemed to
consider and reject the most obvious 403 argument—that the un-
conventional nature of the sexual conduct involved would lead to
unfair prejudice. C.f. Mayo v. Commonwealth, 322 S.W.3d 41, 49–50
(Ky. 2010) (outlining the social stigma associated with anal sex as
being one possible reason a trial judge could exclude evidence of
anal sex under 403).
¶32 Thus, because the court gave no indication that its exclu-
sionary ruling was based on rule 403, we read its ruling as exclud-
ing the evidence based on its misunderstanding of our relevance
rules. This was a legal error warranting no deference. Because the
excluded evidence consisted of ―specific instances of sexual be-
havior by the alleged victim‖ with ―the accused to prove consent‖
that was not shown to be otherwise inadmissible under any other
rule of evidence, it should have been admitted under rule
412(b)(2)(A).7
7 Because the State has not argued on appeal that the offered
sexual history evidence was rightly excluded under rule 403, we
decline to comment on whether rule 403 could serve as a basis for
exclusion on remand.
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STATE v. RICHARDSON
Opinion of the Court
B
¶33 The State suggests that Richardson has lost the right to
challenge the exclusion of that evidence on appeal even if it was
properly admissible under rule 412(b)(2)(A). First, the State argues
that Richardson ―waived any rule 412 claim related to his own tes-
timony when he affirmatively waived his right to testify.‖ It cites
as support for this argument our caselaw stating that ―[t]o pre-
serve for appellate review a claim of improper impeachment with
a prior conviction, a defendant must testify.‖ State v. Gentry, 747
P.2d 1032, 1036 (Utah 1987).
¶34 We have never adopted this rule in the 412 context, and we
decline to do so now. Requiring a defendant to testify before
bringing an appeal makes sense when the defendant seeks to chal-
lenge evidentiary rulings that admit impeachment evidence. After
all, impeachment evidence is only usable against a witness who
actually testifies. And if the defendant does not testify, a review-
ing court ―has no way of knowing whether the [State] would have
sought to impeach‖ that testimony with the evidence that is the
subject of the contested evidentiary ruling. Luce v. United States,
469 U.S. 38, 42 (1984). Further, without knowing how the wit-
ness‘s testimony helped or hindered the defense, a reviewing
court cannot assess the harm impeachment of that testimony
might have caused. Id. at 41–42. A defendant‘s failure to testify
causes no such difficulties in the rule 412 context—as 412 evi-
dence, unlike impeachment evidence, is not usable only against a
witness who actually testifies.
¶35 Second, the State argues that Richardson‘s 412 claim fails
because he invited the error that he identifies on appeal. Specifi-
cally, the State suggests that Richardson ―never sought a ruling
allowing him to present this evidence on cross-examination of the
State‘s witnesses regardless of the witnesses‘ prior testimony.‖ In-
stead, he sought only ―a ruling that would allow him to present
the evidence on cross-examination if prior testimony had ren-
dered it relevant, i.e. if prior testimony had opened the door to it.‖
And since the trial court gave him exactly what he asked for, he
cannot now complain. We disagree.
¶36 The State‘s characterization of Richardson‘s 412 request is
inaccurate; he never requested the limited use ruling the State at-
tributes to him. In his 412 motion, Richardson informed the court
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Opinion of the Court
that ―[t]he defense may choose to call [Richardson] to the [stand]
and through [him] and/or the alleged victim present evidence of
prior specific instances of sexual conduct between [him] and the
alleged victim.‖ It also states that the evidence ―would be offered
to prove consent‖ and/or used as ―impeachment evidence as the
alleged victim has testified to the contrary at preliminary hear-
ing.‖ This language indicates that Richardson sought broad and
comprehensive use of the evidence in question, not the condition-
al one he received.
¶37 The State‘s argument to the contrary seeks to penalize
Richardson for defense counsel‘s lack of clairvoyance about how
trial would proceed. For example, the State supports its invited
error argument with defense counsel‘s statement at the 412 mo-
tion hearing that ―[i]f we were not going to put [Richardson] on
the stand I don‘t think we would raise those issues . . .[, but] it‘s
hard to say. . . .‖ Admittedly, defense counsel equivocated some-
what on exactly how or when it would use the sexual history evi-
dence. But those equivocations are understandable given the pre-
liminary nature of the hearing. They in no way suggest that Rich-
ardson sought a ruling that would allow him to introduce the evi-
dence only if the State opened the door.
¶38 The State also seeks to use other statements from the 412
motion hearing to support its ―invited error‖ argument, but it
takes these statements out of context and ignores the substance of
the hearing as a whole. For example, the State points us to defense
counsel‘s statement that he might introduce the evidence ―on
cross examination if anything had come up that required me to
ask that‖ and that his decision ―would be based on the testimony
of the other witnesses and what they said.‖ But both of those
statements were made after defense counsel clarified the scope of
Richardson‘s 412 request. At one point, the court asked defense
counsel to verify that Richardson was requesting ―that [he] be
permitted to testify about [the evidence] if he decides to take the
witness stand,‖ to which defense counsel responded, “[a]t least
that, Judge, and others would be based on the testimony of the
other witnesses and what they said.‖ Thus, Richardson clearly
and unequivocally asked that he be allowed to testify to the sexual
history evidence. And when the court asked, ―So your request
would be if the door were opened?,‖ defense counsel responded,
―No, no, Judge.‖
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STATE v. RICHARDSON
Opinion of the Court
¶39 Richardson did not paint himself into his current corner.
The trial court did that by its interpretation of our rules of rele-
vance. That interpretation was error, and the error was not invited
by Richardson.
C
¶40 That error, however, ―will require reversal only if [our]
confidence in the jury‘s verdict is undermined.‖ State v. Billingsley,
2013 UT 17, ¶ 21, __ P.3d __ (alteration in original) (internal quota-
tion marks omitted).8 Our confidence in a verdict wanes when
―there is a ‗reasonable likelihood‘ that the verdict would have
been different‖ but for an erroneous ruling. State v. Clopten, 2009
UT 84, ¶ 39, 223 P.3d 1103. ―If there is no reasonable doubt about
guilt whether or not [erroneously excluded] evidence is consid-
ered, there is no justification for a new trial.‖ State v. Schreuder, 712
P.2d 264, 275 (Utah 1985). If, on the other hand, ―the verdict is al-
ready of questionable validity, additional evidence of relatively
minor importance might be sufficient to create a reasonable
doubt.‖ Id.
¶41 In this case, our confidence in the verdict against Richard-
son is sufficiently undermined to warrant a new trial. The case
against Richardson turned on whether the jury believed his ver-
sion of events or the victim‘s.9 Thus, evidence ―that could reason-
8 Cal Wadsworth Constr. v. City of St. George, 898 P.2d 1372, 1378–
79 (Utah 1995) (―An error is harmful if it is reasonably likely that
the error affected the outcome of the proceedings. In other words,
[f]or an error to require reversal, the likelihood of a different out-
come must be sufficiently high to undermine confidence in the
verdict.‖ (alteration in original) (internal quotation marks omit-
ted)); see also UTAH R. EVID. 103(a) (―A party may claim error in a
ruling to admit or exclude evidence only if the error affects a sub-
stantial right of the party and . . . if the ruling excludes evidence, a
party informs the court of its substance by an offer of proof, un-
less the substance was apparent from the context.‖).
9 While both parties presented medical experts, those experts‘
testimony related to the sexual assaults largely canceled each oth-
er out, with each admitting that at least some of the victim‘s inju-
ries could have been attributed to either consensual or forced sex.
The experts also disagreed about significance and/or presence of
14
Cite as: 2013 UT 50
Opinion of the Court
ably impact a jury‘s assessment on this issue—by either discredit-
ing [the victim] or by making [the defendant‘s] story more credi-
ble—is sufficient to make likely an outcome more favorable to [the
defendant].‖ Martin, 2002 UT 34, ¶ 48 (internal quotation marks
omitted). Here, the excluded sexual history evidence does both.
¶42 Knowing that the victim had previously engaged in con-
sensual anal sex with Richardson when she was menstruating
makes it easier to accept his version of what transpired on the
night in question—that she was menstruating and engaged in
consensual anal sex with him. This increase in the believability of
Richardson‘s story naturally and likely would have resulted in a
corresponding increase in skepticism of the victim‘s story. This is
significant given that Richardson had already put the victim‘s
credibility into play by successfully admitting evidence of her pri-
or conviction for lying to police officers about a sexual assault.
And increased doubt about the victim‘s credibility would have
amplified apparent inconsistencies in her story—such as the fact
that no neighbor reported the victim‘s alleged screaming; the fact
that the victim‘s mother said she arrived at her home in a cream-
colored Jeep and not in a silver BMW or Mercedes, as the victim
had testified; and the fact that, though the victim testified that she
did not mention the rape or assault when she talked to her friends
in California by phone that night because Richardson was moni-
toring the conversation, her friend‘s mother told police just the
opposite.
¶43 The jury obviously did not accept the victim‘s story hook,
line, and sinker. It convicted Richardson of only two of the six
counts with which he was charged. And, importantly, the jury ac-
quitted Richardson on the forcible oral sodomy charge even
though he admitted that he engaged in oral sex with the victim on
the night in question. It likewise acquitted Richardson of aggra-
vated assault, even though he admitted to placing his hand on the
victim‘s neck and the State presented physical evidence arguably
corroborating the victim‘s story about the physical assault.
¶44 Perhaps these acquittals could be explained away as ―mer-
cy‖ acquittals, as the State suggests. But they are also consistent
with the notion that the jury was conflicted about the evidence
the injuries allegedly caused by the punching and attempted
strangulation.
15
STATE v. RICHARDSON
Opinion of the Court
and the competing versions of events offered by the victim and
Richardson. Under the circumstances, we cannot reject the idea
that the excluded sexual history evidence could have tipped the
scales wholly in Richardson‘s favor. On the contrary, we conclude
that, had the evidence been admitted, there is ―a reasonable likeli-
hood that the verdict‖ would have been different. See Clopten,
2009 UT 84, ¶ 39 (internal quotation marks omitted).
¶45 Thus, we hold that the trial court‘s exclusion of Richard-
son‘s proffered sexual history evidence under rule 412(b)(2)(A)
was error that undermined the jury‘s verdict. We accordingly re-
verse Richardson‘s convictions and remand for a new trial.
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