State v. Thornton

This opinion is subject to revision before final
publication in the Pacific Reporter

2017 UT 9

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,
Appellant,
v.
ROBERT DAMIEN THORNTON,
Appellee.

No. 20150029
Filed February 21, 2017

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake
The Honorable Katie Bernards-Goodman
No. 111900297

Attorneys:
Sean D. Reyes, Att‘y Gen., Karen A. Klucznik, Asst. Att‘y Gen.,
Salt Lake City, for appellant
Debra M. Nelson, Joan C. Watt, Salt Lake City, for appellee

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, and JUDGE BEAN
joined.
JUSTICE DURHAM filed a concurring opinion with respect to Part III.B.
Having recused himself, JUSTICE PEARCE does not participate herein;
DISTRICT JUDGE JOSEPH M. BEAN sat.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 Robert Damien Thornton was convicted of multiple counts of
rape, sodomy, and sexual abuse of a twelve-year-old victim, B.Z. On
appeal Thornton challenged a pair of evidentiary rulings made by
the district court. He argued that the district court erred in admitting
evidence of his past misconduct under Utah Rule of Evidence 404(b)
and in precluding him from questioning the victim about her sexual
 STATE v. THORNTON
Opinion of the Court
history. On the latter point, Thornton argued that he was entitled to
present evidence of the victim‘s sexual experience under Utah Rule
of Evidence 412 and the Sixth Amendment of the U.S. Constitution.

¶2 The court of appeals reversed Thornton‘s conviction. State v.
Thornton, 2014 UT App 265, 339 P.3d 112. It found error in the
admission of evidence of Thornton‘s past misconduct—of his alleged
sale of drugs to B.Z.‘s mother and encouragement of B.Z‘s mother‘s
prostitution. Specifically, the court of appeals held that the district
court erred in failing to perform a ―scrupulous examination‖ of the
character evidence introduced by the prosecution. Id. ¶ 38. For years
our cases have used this phrase in describing the district court‘s role
in assessing character evidence under rule 404(b). See, e.g., State v.
Decorso, 1999 UT 57, ¶ 18, 993 P.2d 837; State v. Lucero, 2014 UT 15,
¶ 37, 328 P.3d 841. The court of appeals took that requirement to
encompass a duty to assess the drug and prostitution evidence
separately. Thornton, 2014 UT App 265, ¶ 40. And because the district
court lumped the two sub-classes of character evidence together in
its analysis under rule 404(b), the court of appeals found error. It also
deemed the error prejudicial.

¶3 We reverse the court of appeals and reinstate the judgment of
conviction. We find no error in the district court‘s evidentiary ruling
because we affirm its decision admitting evidence of Thornton‘s
alleged involvement in the drug transactions and prostitution at
issue in the case. And we emphasize that the appellate review of
evidentiary rulings is on the decision made at trial, not the process
by which that decision is reached. In so concluding, however, we
acknowledge that our prior decisions leave room for the approach
taken by the court of appeals. We accordingly repudiate the
language in our prior opinions that speaks of ―scrupulous
examination‖ of character evidence under rule 404(b)—finding that
such language is more confusing than helpful.

¶4 We also affirm the court of appeals‘ decision affirming the
district court‘s denial of Thornton‘s bid to present evidence of the
victim‘s prior sexual history under rule 412 and the Sixth
Amendment. We recognize that the Confrontation Clause sometimes
entitles a defendant to question a witness about an essential element
of his defense. But the defendant failed to lay a foundation for any
such argument here. On this record, Thornton cannot show that his
interrogation of the victim as to her sexual experience was essential
to a foundational element of his defense. And we accordingly

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conclude that there was no error in the district court‘s refusal to
allow him to present this evidence to the jury.

I. BACKGROUND

A. Facts and Trial Court Proceedings
¶5 Twelve-year-old B.Z. lived with her mother and stepfather in
a two-bedroom apartment.1 After B.Z.‘s stepfather was incarcerated
her mother began renting out one of the rooms. Thornton became
one of the tenants. He moved into the apartment with his girlfriend.
The two of them stayed in B.Z.‘s bedroom. B.Z. slept in the front
room most of the time but would occasionally sleep in her bedroom.
¶6 B.Z.‘s mother had long suffered from serious substance-abuse
problems. She was addicted to methadone, which she took to deal
with chronic pain. To treat that addiction, she went to a methadone
clinic each morning.
¶7 Thornton allegedly was a drug dealer. For a time he agreed to
provide B.Z.‘s mother with crack cocaine in lieu of rent. After a few
months, however, Thornton told B.Z.‘s mother that she would have
to begin paying for the drugs he was giving her. He also allegedly
encouraged her to engage in prostitution to make money to pay for
the drugs. She did so. She brought clients home and had sex with
them in the apartment. B.Z. was aware that her mother was a
prostitute and was having sex with various men in the apartment.
¶8 As her mother‘s addiction intensified, B.Z. was increasingly
neglected. She stopped attending school even though she had once
been earning ―A‖ grades. And she was often left unfed and without
much attention from her mother.
¶9 Thornton‘s girlfriend was arrested about a month after she
and Thornton moved into the household. Thornton began flirting
with B.Z. shortly thereafter. He began to touch her in sexually
suggestive ways, such as patting her on the buttocks. Eventually, one
morning while B.Z.‘s mother was at the methadone clinic, Thornton
dragged B.Z. into the bedroom and forced her to have sex with him.
¶10 After the first rape, Thornton continued to force himself upon
B.Z. He did so each morning while her mother was at the clinic.
While at first she fought him off, she eventually surrendered. And

1 The facts as presented here are in the light most favorable to the
jury verdict.

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Opinion of the Court
she began to develop what she perceived as romantic feelings for
him—feelings she expressed in letters. Thornton also gave B.Z. a
Christmas present and showered her with affection.
¶11 At first B.Z. did not say anything to her mother about the
rape. She felt that her mother was too addicted to drugs to care and
too dependent on Thornton to do anything about it. B.Z. also noted
that her relationship with her mother had deteriorated as Thornton
became increasingly abrasive and hostile toward the mother.
Thornton also threatened B.Z. with violence if she revealed what he
had done.
¶12 After a couple of months B.Z. finally told her mother that
Thornton had been having sex with her. She also declared that she
believed she was pregnant with Thornton‘s child. The mother did
not call the police herself because she had an outstanding warrant
against her. But she told her neighbor about the rape. The neighbor
called the police, who came and arrested both Thornton and B.Z.‘s
mother.
¶13 B.Z. was taken to a group home and asked about the sexual
abuse. At first she denied the abuse. But in a subsequent interview
she told the detectives that Thornton had repeatedly raped her.
¶14 By the time B.Z. was examined by medical staff, it was too late
to perform a rape test. A pregnancy test revealed that she was not
pregnant. And the medical professionals found no physical evidence
of rape. Yet B.Z. told investigators that after sex Thornton would
wipe himself off on a brown sweater in their room. And forensic
testing found evidence of Thornton‘s semen on the sweater.
¶15 Thornton was charged with multiple counts of rape of a child,
sodomy of a child, and aggravated sexual abuse of a child. He was
tried three times. The first trial ended in a mistrial. The second
resulted in a hung jury. On the third trial the jury finally reached a
verdict. It found Thornton guilty on all counts.2
¶16 At each of the three trials two evidentiary disputes came to
the fore. The first involved the State‘s attempt to introduce evidence
that Thornton had supplied B.Z.‘s mother with drugs and had
encouraged her involvement in prostitution. At the first trial the
parties stipulated to exclude this evidence. But a mistrial ensued

2 Thornton was also convicted of witness-tampering, but he has
not appealed this conviction and it is not before us.

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when the mother volunteered information about Thornton‘s role in
her prostitution—in response to (permitted) questions about her
time as a prostitute. At the second trial the parties entered into the
same stipulation. And this time the stipulation was honored—the
evidence was not admitted. The result, as noted, was a hung jury.
¶17 Before the third trial, the State moved for admission of this
evidence under rule 404(b). The State‘s basis for admission was that
the evidence was relevant to a non-character purpose—to helping
the jury understand the circumstances that gave Thornton the
opportunity to abuse B.Z., and that discouraged her from coming
forward sooner.
¶18 The district court granted the State‘s motion. It allowed the
evidence to be admitted with a limiting instruction. The instruction
indicated that the evidence was to be considered only ―for the
limited purpose of determining Defendant‘s position of power or
trust in the household or in understanding the victim‘s behavior.‖
Jury Instruction No. 28. It also stated that the evidence could not be
used to establish Thornton‘s character or propensity to commit
crime. Id.
¶19 Thus, the district court concluded that the evidence of
Thornton‘s drug dealing and involvement in B.Z.‘s mother‘s
prostitution was essential to provide a relevant narrative. It therefore
held that the evidence served a legitimate non-character purpose
under rule 404(b). And it also determined that the evidence was
relevant and not unduly prejudicial.
¶20 The second category of disputed evidence involved the sexual
history of the victim. Around the time of Thornton‘s sexual acts
against B.Z., she was also engaged in a consensual sexual
relationship with a fourteen-year-old friend of hers. Thornton sought
to question B.Z. about this relationship in order to rebut the
assumption that as a twelve-year-old she would be sexually
innocent.
¶21 At the start of the first trial, the judge held that B.Z. could not
be asked about her sexual history. In so ruling the judge concluded
that this evidence was not essential to the defense because
―Defendant had several other means by which he can establish that
B.Z. had sexual knowledge well beyond that of a traditional twelve-
year-old.‖ Ruling and Order at 6 (Sept. 14, 2011). With this in mind,
the court concluded that introduction of evidence of B.Z.‘s sexual
history ―would do little more than damage [B.Z.‘s] integrity among a
jury[,] which is the very problem Rule 412 seeks to address.‖ Id. at 7.

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¶22 B.Z. presented detailed testimony about the rape at trial. She
testified that the sex ―hurt really bad‖ and felt like she ―was being
ripped open.‖ Trial Transcript at 28 (Sept. 25, 2012). She remembered
that it had ―stung really bad‖ and that she had ―white gooey stuff‖
in her urine. Id. After B.Z. testified, the defense asked the court to
reconsider its exclusion of the rule 412 evidence. But the trial judge
denied that motion.
¶23 This played out similarly in the second and third trials.
Thornton renewed his motion for reconsideration and the trial judge
again denied it. And B.Z. testified at each trial along the same lines.
¶24 When cross-examining B.Z., the defense asked her about the
fact that her mother was a prostitute and asked how she knew about
it. But the defense did not ask B.Z. what she might have learned
from her mother‘s descriptions of or involvement in prostitution.
Nor did counsel ask the judge to conduct an in camera review to
show that B.Z.‘s familiarity with sex could not have come from her
interactions with her mother or her knowledge of her mother‘s
prostitution. And Thornton did not contend—in closing argument or
otherwise—that B.Z. was able to describe sex acts because of
knowledge gained from her mother.
¶25 In closing argument the State characterized B.Z. as a child in a
couple of contexts. It suggested that her youth explained early
inconsistencies in her statements to the police or her infatuated love
letters. And it asserted that someone of her age would not have
known about the semen on the sweater had she not been there to
witness it. But the prosecution did not claim that B.Z.‘s youth
confirmed the truthfulness of her descriptions of sexual sensations. It
did not assert, in other words, that a child of her age could not have
described sex in the way she did unless she had been raped.
¶26 The jury found Thornton guilty on all counts in the third trial.
Thornton then filed an appeal.
B. Appeal
¶27 On appeal Thornton challenged the verdict on the basis of
two evidentiary errors at trial—in the admission of evidence of
Thornton‘s bad acts and in the exclusion of evidence of B.Z.‘s sexual
history. The court of appeals reversed. State v. Thornton, 2014 UT
App 265 ¶ 34, 339 P.3d 112. It affirmed the decision to exclude the
evidence of B.Z.‘s sexual history under rule 412, but reversed on the
basis of the decision to admit evidence of Thornton‘s bad acts, which
it deemed error under our precedents. Id. ¶ 47.

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¶28 The district court‘s error, in the court of appeals‘ view, was in
failing ―to perform the exacting review required before Rule 404(b)
evidence can be admitted.‖ Id. ¶ 34. Thus, the court of appeals
acknowledged that the district court‘s analysis in many respects
―reflect[ed] the ‗care and precision‘ our case law requires.‖ Id. ¶ 39
(citation omitted). But it nonetheless found the district court‘s
approach deficient. It noted that ―the district court took two separate
categories of bad acts . . . and analyzed them as a single unit.‖ Id.
¶ 40. And it concluded that ―[l]umping both types of bad acts into
the same analytical bin prevented the district court from accounting‖
for the distinct potential for prejudice that each had, or from
engaging in the ―careful[] weigh[ing]‖ required under our precedent.
Id. ¶ 41 (second alteration in original) (citation omitted).
¶29 The court of appeals was concerned that the district court had
failed to recognize that the ―jury‘s reaction to evidence of drug
dealing could be markedly different than its reaction to evidence of a
defendant pressuring a drug-addicted woman into prostitution.‖ Id.
It feared that the prostitution evidence ―could also provide a jury
with a greater temptation to draw an improper inference
about Thornton‘s propensity to commit the charged sex crimes.‖ Id.
And if the district court had analyzed the two pieces of evidence
separately, the court of appeals thought it ―might have determined‖
that the drug evidence was admissible even if the prostitution
evidence was not. Id. ¶ 42.
¶30 The court of appeals accordingly concluded that the district
court‘s ―analysis failed to clear the analytical bar‖ that our cases
demand. Id. ¶ 38. So ―[w]ithout opining on the ultimate admissibility
of th[e] evidence,‖ it found reversible error. Id.
¶31 Despite reversing the district court on the 404(b) evidence, the
court of appeals agreed with its analysis on the admissibility of the
victim‘s sexual history. It considered and rejected two bases for
admission proffered by the defendant. First, it rejected Thornton‘s
argument that B.Z.‘s ―pregnancy belief [or] her sexual knowledge
constitutes‖ physical evidence under rule 412(b)(1), id. ¶ 21—
evidence offered ―to prove that someone other than the defendant
was the source of semen, injury, or other physical evidence.‖ Id. ¶ 19.
The court of appeals deemed the 412(b)(1) exception to apply only to
―physical evidence.‖ Id. ¶ 21. And it thought that Thornton‘s
argument improperly ―stretches the language‖ beyond its
permissible meaning. Id.
¶32 Second, the court of appeals turned to Thornton‘s argument
that the evidence was admissible under rule 412(b)(3) because its

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Opinion of the Court
exclusion ―would violate the defendant‘s constitutional rights.‖
UTAH R. EVID. 412(b)(3). It noted that Thornton claimed that
―admission of the evidence was required to vindicate his
constitutional rights to conduct reasonable cross-examination and
present a complete defense.‖ Thornton, 2014 UT App 265, ¶ 22. But it
held that this evidence was not essential to Thornton‘s defense
because it was ―unlikely that the jury would have viewed [B.Z.] as a
‗sexual innocent‘‖ given B.Z.‘s ―unusual home environment.‖ Id.
¶ 28. For these reasons, the court of appeals concluded that this
evidence ―would have done ‗little more than damage [B.Z.‘s]
integrity‘‖ in the eyes of the jury. Id. ¶ 29 (citation omitted). Finally,
the court of appeals noted that the State ―did not actively exploit the
district court‘s rule 412 ruling‖ by unduly focusing on B.Z.‘s sexual
innocence at trial. Id. ¶ 32 n.7. So it concluded that ―[t]he district
court did not abuse its discretion‖ in excluding this evidence. Id.
¶ 30.
¶33 The State filed a petition for certiorari challenging the decision
to reverse Thornton‘s conviction on the basis of the district court‘s
404(b) analysis. Thornton filed a cross-petition. He sought to
challenge the decision to affirm the refusal to allow the admission of
evidence of B.Z.‘s sexual history under rule 412. We granted the
parties‘ petitions. Our review is de novo. In considering the court of
appeals‘ decision, however, we assess whether ―it accurately
reviewed the trial court‘s decision under the appropriate standard of
review.‖ State v. Verde, 2012 UT 60, ¶ 13, 296 P.3d 673 (citation
omitted).
¶34 We reverse the court of appeals‘ decision to reverse
Thornton‘s conviction on the basis of the admission of his prior bad
acts under rule 404(b). And we affirm the court of appeals‘ decision
on B.Z.‘s sexual history under rule 412. Thus, we reinstate the jury
verdict and judgment of conviction on the various counts against
Thornton.
II. EVIDENCE OF THORNTON‘S PRIOR MISCONDUCT UNDER
RULE 404(b)
¶35 Utah Rule of Evidence 404(b) regulates a sensitive evidentiary
matter. On one hand, the rule recognizes the dangers of exposing a
jury to evidence of a defendant‘s acts of prior misconduct—
specifically, the risk that the jury will infer ―that the defendant has a
reprehensible character, that he probably acted in conformity with it,
and that he should be punished for his immoral character in any
event.‖ Verde, 2012 UT 60, ¶ 29. The rule deems that inference
impermissible. It holds that ―[e]vidence of a crime, wrong, or other
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act is not admissible to prove a person‘s character in order to show
that on a particular occasion the person acted in conformity with the
character.‖ UTAH R. EVID. 404(b)(1).
¶36 On the other hand, the rule also recognizes that acts of prior
misconduct may also sustain an alternative—and entirely
permissible—inference. ―When past misconduct evidence is offered
for any other purpose‖—other than to ―suggest action in conformity
with‖ the bad character suggested by his prior bad acts—such
evidence ―is admissible‖ so long as it satisfies rules 402 and 403.
Verde, 2012 UT 60, ¶ 15. Thus, our rules of evidence recognize that
evidence of prior misconduct may be both relevant and not unduly
prejudicial. And our rules deem such use of this evidence
appropriate.
¶37 ―That much is clear‖ from the terms of rule 404(b). Verde, 2012
UT 60, ¶ 16. Yet our cases have long recognized a difficulty
embedded in the seemingly simple dichotomy set forth in the rule.
―The difficulty . . . springs from the fact that evidence of prior bad
acts often will yield dual inferences—and thus betray both a
permissible purpose and an improper one.‖ Id. This is a difficulty we
have long grappled with. For some time we have sought to address
it by imposing a set of procedural requirements on our trial judges.
¶38 Specifically, our cases have long spoken of a requirement of
―scrupulous examination‖ of evidence of prior misconduct under
rule 404(b). See State v. Decorso, 1999 UT 57, ¶ 18, 993 P.2d 837. We
have said that a judge ―must use ‗care and precision‘ in evaluating
‗the true—and predominant—purpose‘ for admission‖ of evidence
of prior misconduct. State v. Lucero, 2014 UT 15, ¶ 36, 328 P.3d 841
(quoting Verde, 2012 UT 60, ¶¶ 22, 55). And we have required a
district judge‘s analysis of these issues to be set forth on the record,
and (at least sometimes) as a product of briefing and oral argument
from the parties. See id. ¶ 37; State v. Widdison, 2001 UT 60, ¶ 44, 28
P.3d 1278.
¶39 Most recently, in Lucero, we characterized the ―scrupulous
examination‖ requirement as consisting of three steps—
encompassing analysis of the standards of admissibility under rules
404(b), 402, and 403. Lucero, 2014 UT 15, ¶ 37. In so doing, we
―acknowledge[d] that our case law giving effect to the ‗scrupulous
examination‘ requirement has, to date, been somewhat unclear.‖ Id.
To minimize confusion going forward, Lucero clarified that
―scrupulous examination‖ requires only that the judge analyze the
standards set forth in rules 404(b), 402, and 403 of the Utah Rules of
Evidence. We also repudiated the notion of a hard requirement of

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Opinion of the Court
briefing and oral argument. We stated instead that it is enough that
―the trial court engages in th[e] three . . . step analysis on the record.‖
Id. And we emphasized that this requirement is ―essential for
effective appellate review of the issues.‖ Id.
¶40 The court of appeals‘ decision in this case was premised on
the above line of cases. In reversing the district court‘s decision to
admit evidence of Thornton‘s involvement in B.Z.‘s mother‘s drug
use and prostitution, the court of appeals found a lack of
scrupulousness. State v. Thornton, 2014 UT App 265, ¶ 38, 339 P.3d 112.
It concluded, in particular, that the trial judge had fallen short in
failing to analyze two sets of prior bad acts separately—Thornton‘s
involvement in drug use, on one hand, and prostitution, on the
other. Id. ¶ 40. And due to the lack of a separate analysis of the
admissibility of each category of evidence on the record, the court of
appeals concluded that it could not determine whether the district
judge would have deemed the drug evidence or prostitution
evidence admissible if it had analyzed them separately. Id. ¶ 42. And
it reversed on the ground that the district court‘s ―analysis failed to
clear the analytical bar‖ demanded by our cases. Id. ¶ 38.
¶41 We can see a basis for the court of appeals‘ decision in the
terms of our precedents in this area. And we concede that the quality
of appellate review would have been enhanced by a more fulsome
statement of the district judge‘s analysis on the record. But we
nonetheless reverse the court of appeals. We do so for a number of
reasons.
A. Preservation
¶42 First, Thornton preserved no objection to the method or
structure of the district court‘s analysis of the 404(b) question
presented. At no point in the district court proceedings did Thornton
ever suggest that the two strands of prior misconduct evidence
should be analyzed separately. Nor was this issue presented in the
briefing or argument to the court of appeals.
¶43 Thornton argued generally that the district judge‘s analysis
fell short of the ―scrupulous examination‖ required by our cases. But
he never challenged that examination on the specific basis seized on
by the court of appeals. That is significant. We find no room for
reversal of a trial judge under an abuse of discretion standard on a
ground that was not specifically presented to the district court. See
State v. King, 2006 UT 3, ¶ 23, 131 P.3d 202 (trial court does not abuse
its discretion when it does not sua sponte consider an issue that was
not raised before it).

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B. Repudiation of ―Scrupulous Examination‖ Standard
¶44 Second, we acknowledge a basis for the court of appeals‘
decision in the ―scrupulous examination‖ standard set forth in our
caselaw. But we conclude, on reflection, that that standard is more
confusing than helpful. And we accordingly repudiate it.
¶45 We have, as noted, long alluded to the need for ―scrupulous‖
analysis ―on the record.‖ And we have explained that that
requirement is necessary to facilitate effective appellate review of
trial court decisions under rule 404(b). The court of appeals could
understandably view our cases as opening the door to—or even
commanding—its insistence on careful, separate analysis of the two
strands of prior misconduct evidence proffered by the State at trial. It
is certainly true that such detailed analysis would have been more
scrupulous in some sense of that term.
¶46 Yet we find nothing in the rules of evidence that demands
such detailed analysis as a freestanding procedural requirement.
And we reiterate, as we have in other recent cases, that it is our rules
that state the primary law of evidence in the State of Utah.3 With that
in mind, we hold that there is no legal error in a district judge‘s
failure to engage in a separate analysis of distinct strands of prior
misconduct evidence presented under rule 404(b). And we reverse
the court of appeals‘ conclusion to the contrary.
¶47 In so holding, we take the point an important step further. On
reflection, we conclude that the notion of a requirement of
―scrupulous examination‖ under rule 404(b) is more confusing than
helpful. This rule nowhere requires explicit findings or analysis on
the face of the record. It simply prescribes standards for
admissibility of evidence. That is likewise the thrust of rules 402 and
403, which also govern in this area. These rules provide terms and
conditions of admissibility of evidence; they do not prescribe the
methods or procedure for the district court‘s analysis on the record.
¶48 Our cases have sometimes suggested otherwise. In requiring
―scrupulous examination‖ we have spoken to the procedure and
mechanisms for analysis of rule 404(b) issues. But that now strikes us

3 State v. Lucero, 2014 UT 15, ¶ 32, 328 P.3d 841 (explaining that
―courts are bound by the text of [our rules]‖); State v. Cuttler, 2015
UT 95, ¶ 19, 367 P.3d 981 (noting that ―it is not appropriate for a
district court to moor its . . . analysis entirely and exclusively‖ to
factors that were not part of the text of the rules).

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Opinion of the Court
as a distortion of the rules of evidence—and of the proper process for
appellate review.
¶49 American courts have long followed the ―writ of error‖
approach to appellate review. See Robert J. Martineau, Considering
New Issues on Appeal: The General Rule and the Gorilla Rule, 40 VAND. L.
REV. 1023, 1026–27 (1987) (discussing the history of this approach).
Under this framework, the appellate court does not review the trial
record in a search for an idealized paradigm of justice. Id. at 1026
(noting that appellate courts do ―not . . . test whether the proper
party ha[s] won‖). We ask only whether the trial court committed a
reversible error in resolving a question presented for its
determination.4
¶50 The question presented to the district court in this case was
whether to admit evidence of prior misconduct under rule 404(b). To
decide whether there was error in admitting evidence of Thornton‘s
involvement in B.Z.‘s mother‘s drug use and prostitution, the court
of appeals should have decided whether that evidence should
properly have been excluded under the rules of evidence. In
reversing instead on the basis of the district court‘s failure to
perform a sufficiently scrupulous examination, the court of appeals
assessed only the form or process of the district court‘s analysis. That
is insufficient. In reviewing a decision to admit evidence, there can
be error only if the evidence should properly have been excluded.
¶51 This is the general rule in the law. For most decisions
reviewed on appeal, the error, if any, is in making an incorrect
decision on the operative question presented. A judge may make the
right decision for a mistaken reason (or no reason), for example, and
still be affirmed on appeal. As a general rule, in other words, our
appellate review is of operative decisions made by lower courts, not
of the quality of the analysis employed in the course of such
decisions.
¶52 There are exceptions to the rule. In a few isolated instances
our law requires explicit findings or some other formal mode of
analysis on the face of the record—and calls for reversal in the

4 See Peatross v. Bd. of Comm’rs of Salt Lake Cty., 555 P.2d 281, 284
(Utah 1976) (―[A]ppellate jurisdiction is the authority to review the
actions or judgments of an inferior tribunal upon the record made in
that tribunal, and to affirm, modify[,] or reverse such action or
judgment.‖).

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absence of such an approach.5 But this is the exception that proves
the rule. And our rules of evidence show no signs of departing from
the general rule. Again, they prescribe only standards for admission
or exclusion of evidence and do not generally speak to the form of
analysis to be performed on the record in support of a decision on
admissibility.
¶53 We acknowledge that our ―scrupulous examination‖ cases
have suggested otherwise. For reasons stated herein, however, we
hereby repudiate this formulation of the standard to be applied on
appellate review of evidentiary decisions made under rule 404(b).
Instead of looking for ―scrupulous examination,‖ our appellate
courts should simply assess whether the district judge made an error
in admitting or excluding the evidence in question. That is the question
presented under our rules of evidence. And appellate review for
error should conform to the standard set forth in our rules.
¶54 In so holding we do not at all undermine the advisability of a
trial judge‘s scrupulousness. See Townsend v. Holman Consulting Corp.,
929 F.2d 1358, 1366 (9th Cir. 1990) (noting that ―district courts
substantially aid the review process by giving thorough explanations
of their reasons‖). Nor do we suggest that the degree of a judge‘s
scrupulousness—as defined in our cases—is irrelevant to appellate

5 In a bench trial, for example, the court ―must find the facts
specially and state separately its conclusions of law,‖ and ―[t]he
findings and conclusions must be made part of the record.‖ UTAH R.
CIV. P. 52(a). And the failure to follow this procedural path is itself
error, as we have concluded that such failure is a ―fundamental
defect‖ that ―makes it impossible to review‖ the lower court‘s
decision. Acton v. Deliran, 737 P.2d 996, 998–99 (Utah 1987); accord
Arthur R. Miller, FEDERAL PRACTICE & PROCEDURE, 9C Fed. Prac. &
Proc. Civ. § 2577 (3d ed.) (noting that ―the court of appeals may
vacate the judgment and remand the case to the district court for
findings if the trial court has failed to make findings when they are
required by the rule‖). The requirement of findings extends to
criminal bench trials as well. See UTAH R. CRIM. P. 12(e) (―Where
factual issues are involved in determining a motion, the court shall
state its findings on the record.‖). But see State v. Helms, 2002 UT 12,
¶¶ 11–12, 40 P.3d 626 (noting that ―as a general rule ‗this court
upholds the trial court even if it failed to make findings on the
record whenever it would be reasonable to assume that the court
actually made such findings.‘‖ (citations omitted)).

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 STATE v. THORNTON
Opinion of the Court
review. The careful trial judge will still proceed as outlined in our
recent Lucero decision—marching through the standards set forth in
rules 404(b), 402, and 403, and presenting his analysis on the record.
And the judge who does so will be better-positioned to have his
decision on admissibility of prior misconduct evidence affirmed on
appeal.6
¶55 But the bottom line is that ―scrupulous examination‖ is not an
independent requirement of rule 404(b). So we repudiate our
caselaw to the extent it has so suggested. And we reverse the court of
appeals‘ decision because it was based on that premise.7
C. Analysis of Admissibility Under Rules 404(b), 402, and 403
¶56 That conclusion requires us to answer the question the court
of appeals stopped short of addressing—whether the prior

6 The existence of careful findings, after all, will increase the
likelihood of deference on appeal. See Benson v. N. Gopher Enters.,
Inc., 455 N.W.2d 444, 446 (Minn. 1990) (concluding that the
―thoroughness of the trial court‘s exploration of [an] issue‖ justified
deference even though the appellate court ―may have reached a
different conclusion‖).
7 Our holding here is not inconsistent with our decision in State v.
Verde, 2012 UT 60, 296 P.3d 673. There we reversed a jury verdict that
was premised on the admission of evidence presented under rule
404(b). Our reversal was on the ground that the bases for admission
proffered by the prosecution at trial did not hold up on appeal. Id.
¶ 24. And we declined to consider an alternative ground for
admission proffered for the first time on appeal—not preserved at
trial and thus not ruled upon by the district court. See id. ¶ 20
(refusing to consider the ―doctrine of chances‖ as a basis for
admission of 404(b) evidence where this doctrine was not advanced
as a basis for admission at trial). Our Verde decision was based on the
law of preservation. See id. ¶ 20 (declining to affirm on the basis of
the doctrine of chances ―in the absence of any indication in the
record that the district court was asked to conduct the careful
weighing required to sustain the admission of such evidence in a
case like this one,‖ and ―leav[ing] it to the district court on remand‖
to decide whether the doctrine could sustain the admissibility of the
evidence in that case). And the law of preservation stands despite
our repudiation of the procedural requirement of ―scrupulous
examination.‖

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Opinion of the Court
misconduct evidence at issue was properly admitted at trial. We
conclude that it was. As a threshold matter, we reiterate the
deferential standard of review that applies to review of this kind of
question. The trial judge is in a better position than we are to assess
the avowed basis for evidence of prior misconduct—and to judge its
likely effect in prejudicing or confusing the jury. So the question for
us is not whether we would have admitted this evidence. It is
whether the district judge abused his broad discretion in doing so.
¶57 And we conclude that the district court was well within its
discretion in admitting this evidence. First, we find ample grounds
for the judge‘s determination that the evidence was presented for a
purpose other than to suggest that the defendant likely acted ―in
conformity with‖ bad character. UTAH R. EVID. 404(b)(1) (identifying
this as a prohibited use). The evidence of Thornton‘s involvement in
B.Z.‘s mother‘s drug use and prostitution presented a narrative of
relevance to the prosecution‘s case—to demonstrating Thornton‘s
position of power in the home, to explaining why he had such easy
access to B.Z., and to suggesting why B.Z. may have waited to come
forward with accusations against Thornton. This was the avowed
purpose of the prior misconduct evidence in this case. And the
district court acted within its discretion in crediting this proper
purpose. See Verde, 2012 UT 60, ¶ 15 (noting that ―the admissibility of
prior misconduct evidence depends on its avowed purpose‖); id.
¶ 19 (indicating that a trial judge‘s ―decision to admit evidence
under rule 404(b) is entitled to some deference‖).
¶58 Granted, the prior misconduct evidence in this case could also
sustain an improper inference. We cannot foreclose the possibility
that the jury may have viewed Thornton‘s encouragement of
prostitution, for example, as an indication that he may be the type of
person who might be likely to engage in deviant sexual conduct. But
that possibility is not enough to dictate the exclusion of this evidence
under rule 404(b). The threshold 404(b) question is whether the
evidence has a plausible, avowed purpose beyond the propensity
purpose that the rule deems improper. If it does then the evidence is
presumptively admissible (subject to rule 402 and 403 analysis).
¶59 We have suggested that an avowed proper purpose may be
rejected as a pretext or ―ruse.‖ Verde, 2012 UT 60, ¶ 22. That would
be appropriate, for example, where the proper purpose put forward
by the prosecution is addressed to an issue that is not actually
disputed, and where the court concludes that the only real effect of
the evidence is to suggest likely action in conformity with bad
character. See id. Short of that, however, the court‘s job under rule
404(b) is not to balance or weigh competing (proper and improper)
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 STATE v. THORNTON
Opinion of the Court
inferences.8 Such weighing comes in under rule 403. See id. ¶ 17
(stating that ―if 404(b) evidence appears to have a dual purpose—to
be aimed at both proper and improper inferences—it may
nonetheless be excluded under rule 403‖).
¶60 In all events, the district court did not view the State‘s avowed
―narrative‖ purpose of the 404(b) evidence in this case as a pretext or
ruse. It deemed the State‘s non-propensity-based purposes to be
legitimate. And we agree.
¶61 That takes us to the questions of relevance and balancing
under rules 402 and 403. Relevance is a low bar. ―Evidence is
relevant if . . . it has any tendency to make a fact more or less
probable than it would be without the evidence.‖ UTAH R. EVID.
401(a) (emphasis added). And the trial judge was well within her
discretion in deciding that the prior misconduct evidence in this case
was relevant—that it would help the jury understand Thornton‘s
position of power in the home, why he had such easy access to B.Z.,
and why B.Z. may have waited to come forward with accusations
against him. These were important issues in the case given
Thornton‘s defense—that B.Z. fabricated her accusations against
him. So the narrative advanced by the prosecution—which included
Thornton‘s prior misconduct—was certainly relevant.
¶62 Under rule 403 ―[t]he court may exclude relevant evidence if
its probative value is substantially outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.‖ UTAH R. EVID. 403. The trial judge
concluded that the probative value of the 404(b) evidence in this case
was not substantially outweighed by any of the listed considerations.
And we find no abuse of discretion in that determination.
¶63 The risk of prejudice was somewhat mitigated by the fact that
Thornton‘s prior acts were distinct from the crime he was charged
with. There was no claim that he made any sexual advances toward
B.Z.‘s mother, only that he encouraged her to become involved in
prostitution to have money to pay for the drugs he was providing to
her. And the evidence, again, was a matter of substantial relevance
to the prosecution (in rebutting Thornton‘s charge that B.Z.

8 The district court may also issue a limiting instruction—
reminding the jury of the need to avoid the improper, propensity-
based inference, and to consider only the proper purpose.

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Opinion of the Court
fabricated her testimony). For these reasons the trial judge acted well
within her discretion in deciding that the probative value of this
evidence was not ―substantially outweighed‖ by the risk of ―unfair
prejudice.‖
¶64 We reverse the court of appeals (and uphold the decision of
the district court) on these grounds. In so concluding, we note that
we find no error in the district judge‘s failure to consider the
prostitution and drug evidence separately. Thornton never asked for
the evidence to be considered separately. And it ultimately was of a
piece: It told a broader narrative of relevance to the prosecution‘s
rebuttal of Thornton‘s principal defense (fabrication). For those
reasons we think the trial judge acted reasonably in considering and
weighing both strands of 404(b) evidence together. We reverse the
court of appeals‘ decision to the contrary.
III. EVIDENCE OF B.Z.‘S SEXUAL EXPERIENCE UNDER RULE 412
¶65 Utah Rule of Evidence 412 generally proscribes the admission
of evidence of the ―other sexual behavior‖ of a victim ―in a criminal
proceeding involving alleged sexual misconduct.‖ UTAH R. EVID.
412(a). It also sets forth a series of exceptions to the general rule.
Under part (b)(1) of the rule, ―evidence of specific instances of a
victim‘s sexual behavior‖ is admissible ―if offered to prove that
someone other than the defendant was the source of semen, injury,
or other physical evidence.‖ UTAH R. EVID. 412(b)(1). Alternatively,
part (b)(3) states that ―evidence whose exclusion would violate the
defendant‘s constitutional rights‖ is also admissible. UTAH R. EVID.
412(b)(3).
¶66 These two exceptions are implicated here. Thornton claims
that evidence of B.Z.‘s sexual relationship with a fourteen-year-old
friend should have come in under either or both of the cited
exceptions. And he challenges the court of appeals‘ decision
affirming the district judge‘s rejection of his arguments on these
points. We affirm.
A. Rule 412(b)(1)
¶67 Thornton claims that evidence of B.Z.‘s sexual experience was
―offered to prove that someone other than the defendant was the
source of semen, injury, or other physical evidence.‖ UTAH R. EVID.
412(b)(1). He says that B.Z‘s sexual relationship with a fourteen-year-
old friend was ―physical evidence‖ of relevance to B.Z.‘s belief that
she was pregnant or to her familiarity with sex acts. And he
contends that evidence of this relationship should thus have been
admitted under the exception in rule 412(b)(1).

17
 STATE v. THORNTON
Opinion of the Court
¶68 We disagree. Rule 412(b)(1) comes into play in a case
involving a specific forensic question—whether ―the defendant was
the source of semen, injury, or other physical evidence.‖ Id. No such
forensic question was presented here. No one ever identified any
tangible, physical evidence that could directly tie B.Z.‘s assailant to
her rape. And the absence of such ―physical evidence‖ renders the
rule 412(b)(1) exception inapplicable.
¶69 Thornton suggests that B.Z.‘s fourteen-year-old friend might
be the ―source of semen‖ that caused her to believe that she was
pregnant. But that was never an issue at trial. B.Z. apparently was
not pregnant. And the question presented at trial was not who may
have caused her to believe that she was. It was whether Thornton
perpetrated the sexual assaults charged by B.Z. The sexual
relationship between B.Z. and the fourteen-year-old boy had no
relevance to that question.
¶70 There was never any question, moreover, as to whether
Thornton was the source of any semen, injury, or other physical
evidence. So the relationship between B.Z. and the fourteen-year-old
boy was not ―physical evidence‖ covered by rule 412(b)(1).
¶71 We affirm the court of appeals on that basis. We agree with its
conclusion that the 412(b)(1) exception applies only to ―physical
evidence,‖ and that it ―stretches the language‖ of the exception too
far to apply it here. State v. Thornton, 2014 UT App 265, ¶ 21, 339 P.3d
112.
B. Rule 412(b)(3) and the Sixth Amendment
¶72 That leaves only Thornton‘s argument that exclusion of
evidence of B.Z.‘s relationship with her fourteen-year-old friend
violated his ―constitutional rights‖ in a manner implicating the
exception in rule 412(b)(3). The principal constitutional rights he
cites are those protected by the Sixth Amendment to the United
States Constitution.
¶73 Thornton says he needed to present evidence of B.Z.‘s
relationship with the fourteen-year-old boy in order to undermine
B.Z.‘s testimony—specifically, her testimony describing the physical
sensation of sexual penetration and intercourse. Evidence of that
relationship, in Thornton‘s view, would have allowed him to
undercut the prosecution‘s presentation of B.Z. as a sexual innocent
who would not have known how to describe the physical sensations
that she described unless she had been raped. Because he was
precluded from presenting that evidence, moreover, Thornton claims

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Opinion of the Court
that he was deprived of a fair trial as guaranteed by the Sixth
Amendment.
¶74 The Sixth Amendment guarantees a defendant a right to a
―speedy and public trial‖ by jury, ―to be confronted with the
witnesses against him,‖ ―to have compulsory process for obtaining
witnesses in his favor,‖ and ―to have the Assistance of Counsel for
his defence.‖ U.S. CONST. amend. VI. These provisions have been
interpreted to encompass some form of ―right to present [a]
defense.‖ See Rock v. Arkansas, 483 U.S. 44, 48, 56 (1987). Thus, where
rules of evidence or procedure foreclose any meaningful avenue for
presenting a defendant‘s fundamental defense to charges against
him, the U.S. Supreme Court has found a Sixth Amendment
violation. And it has deemed the Sixth Amendment to override rules
of evidence or procedure.
¶75 In Rock, for example, the court struck down an Arkansas rule
that excluded all hypnotically refreshed testimony from admission at
trial. It did so on the ground that the Arkansas rule deprived the jury
of the only witness who was at the scene and had firsthand
knowledge of the facts of the case. See id. at 57. The court also
emphasized that the Arkansas rule infringed the defendant‘s interest
in testifying in her own defense. See id. at 52. Thus, the Rock court
held that the defendant had a right to be allowed ―to present his own
version of events in his own words,‖ and it struck down the
Arkansas prohibition on hypnotically refreshed testimony on the
ground that it infringed the defendant‘s right to present a defense.
Id. Earlier cases are along similar lines.9
¶76 Yet the high court has emphasized the limited nature of the
right recognized in this line of cases. In United States v. Scheffer, 523

9 See Washington v. Texas, 388 U.S. 14, 23 (1967) (striking down, on
Sixth Amendment grounds, Texas statutes preventing codefendants
or coparticipants in a crime from testifying for one another,
precluding the defendant from introducing his accomplice‘s
testimony that the accomplice had committed the crime; holding that
―the State arbitrarily denied [the defendant] the right to put on the
stand a witness who was physically and mentally capable of
testifying to events that he had personally observed‖); Chambers v.
Mississippi, 410 U.S. 284 (1973) (holding that Mississippi law
preventing party from impeaching own witness and excluding
testimony of three persons to whom witness had confessed violated
defendant‘s constitutional rights).

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 STATE v. THORNTON
Opinion of the Court
U.S. 303 (1998), the court explained that the Sixth Amendment right
to present a defense is far from absolute. The Scheffer court held that
this right must be understood to accommodate the ―broad latitude‖
given to ―rulemakers‖ tasked with ―establish[ing] rules excluding
evidence from criminal trials.‖ Id. at 308; see also Rock, 483 U.S. at 55
(explaining that the defendant‘s interest in presenting evidence may
―bow to accommodate other legitimate interests in the criminal trial
process‖). In recognition of this prerogative, Scheffer held that the
―defendant‘s right to present relevant evidence is . . . subject to
reasonable restrictions.‖ 523 U.S. at 308. Specifically, Scheffer
established that evidentiary ―rules do not abridge an accused‘s right
to present a defense so long as they are not ‗arbitrary‘ or
‗disproportionate to the purposes they are designed to serve.‘‖ Id.
(quoting Rock, 483 U.S. at 56). And it explained that ―exclusion of
evidence [is] unconstitutionally arbitrary or disproportionate only
where it has infringed upon a weighty interest of the accused.‖ Id.
¶77 This is a high bar. It is met only if the defense can show that
the operative rule of evidence ―significantly undermined
fundamental elements of the defendant‘s defense.‖ Id. at 315. Thus, it
is not enough to show that ―a state or federal rule excludes favorable
evidence.‖ Id. at 316. The defense must demonstrate a ―weighty
interest‖ that is ―significantly undermined‖ by the rule of evidence;
and the rule must be shown to be ―arbitrary‖ or ―disproportionate to
the purposes‖ it is designed to serve. Id. at 308, 315.
¶78 These standards are not completely theorized or explained in
Scheffer or Rock. But they require, at a minimum, proof that the
evidence in question is essential to the presentation of a defense. See
id. at 315 (requiring proof that exclusion ―significantly undermined
fundamental elements of the defendant‘s defense‖). Scheffer suggests
that it is only in such circumstances that the state‘s interest in
enforcing its rules of evidence is ―disproportionate‖ to the ―weighty
interest of the accused.‖ Id. at 308.
¶79 Thornton cannot make such a showing. He failed to lay the
foundation necessary to do so in the trial proceedings below. And
the absence of such foundation renders him incapable of establishing
on appeal that the evidence of B.Z.‘s sexual relationship with a
fourteen-year-old was fundamental or essential to his defense.
¶80 The district court based its decision to exclude the evidence of
B.Z.‘s sexual experience on the determination that Thornton had
―several other means by which he can establish that B.Z. had sexual
knowledge well beyond that of a traditional twelve-year-old.‖ Ruling
and Order at 6 (Sept. 14 2011). Thus, because it found that ―defendant
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Opinion of the Court
can make the same allegations with different evidence,‖ the district
court ruled that ―he is not denied his Sixth Amendment rights.‖ Id.
¶81 Thornton challenges that ruling on appeal. He claims that the
other evidence available to him—principally the evidence of B.Z.‘s
experience with the sexual activity and prostitution taking place in
her household—was insufficient to allow him to establish B.Z.‘s
familiarity with the physical sensations of sexual activity. But he
failed to lay the foundation necessary to support that argument in
the district court. Thornton never sought an in camera examination to
compare the knowledge B.Z. had from what she learned from the
sexual activity in her household with the understanding she
acquired from her relationship with the fourteen-year-old. Nor did
he pursue any such line of questioning in his examination of B.Z. at
trial—to ask, for example, whether she had heard her mother
describe sex in the kind of detail that she used to describe what it felt
like to be raped.10
¶82 That is fatal to Thornton‘s position on appeal. Without a
foundation in the record for comparison of the rule 412 evidence
with the alternative evidence cited by the district court, Thornton has
no basis for challenging the district court‘s determination that he had
―other means‖ to establish B.Z.‘s ―sexual knowledge.‖ And for that
reason he likewise has no basis for establishing that evidence of
B.Z.‘s sexual experience was essential to his defense.
¶83 We affirm the court of appeals‘ decision on the rule 412(b)(3)
exception on this basis.
IV. CONCLUSION
¶84 We affirm the court of appeals‘ decision on the rule 412 issue
but reverse its decision to reverse Thornton‘s conviction on the rule
404(b) issue. Thus, absent any basis for questioning the guilty

10 For these reasons we are in no position to opine on the question
whether Thornton ―met the threshold for creating a Sixth
Amendment Claim,‖ or in other words whether ―the trial court erred
in its conclusion that the other evidence of sources for the victim‘s
sexual knowledge were adequate to meet that claim.‖ Infra ¶ 2
(Durham, J., concurring). Because Thornton ―leaves us only with his
speculation‖ about what information the victim could have gleaned
from either source of information, infra ¶ 3, we have no basis for
evaluating the correctness of the district court‘s assessment of the
relative value of the two available sources of evidence.

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 STATE v. THORNTON
Opinion of the Court
verdict, we reinstate the judgment of conviction on each of the
several counts against Mr. Thornton.

JUSTICE DURHAM, concurring separately:
¶85 I concur in the result, and in all parts of the majority opinion
except the analysis under rule 412 of the Utah Rules of Evidence
contained in Part III.B. I do not disagree with the opinion‘s
explanation of the content and standards for review of evidentiary
concerns implicating the Sixth Amendment. I do disagree with the
trial court‘s and the majority‘s assessment of the evidence in this
case. The trial court, as the majority notes, concluded that the
defendant could ―make the same allegations [that the victim‘s
testimony about sexual details was the result of her relationship with
a boyfriend and not the defendant‘s attacks] with different
evidence.‖ Supra ¶ 80.
¶86 The ―different evidence‖ in question, according to the
majority, is ―principally the evidence of [the victim‘s] experience
with the sexual activity and prostitution taking place in her
household.‖ Supra ¶ 81. But the type of testimony at issue here bears
no logical nexus to second-hand exposure to sexual activity or
prostitution. It contained explicit, personal descriptions of physical
sensations, pain, and cloudy substance in her urine. There is no
likelihood, in my view, that any of that testimony came from
observations of, or conversations about, the consensual adult sexual
activities going on in the household. It is also unfortunate that the
prosecutor referred to the victim on several occasions in connection
with this issue as a ―child,‖ in an apparent effort to emphasize her
sexual inexperience. Thus, I think the defense met the threshold for
creating a Sixth Amendment claim, and that the court of appeals
erred in affirming the trial court‘s conclusion that the other evidence
of sources for the victim‘s sexual knowledge were adequate to meet
that claim.
¶87 That being said, however, I agree with the majority opinion
that the defense entirely failed to show ―that the operative rule of
evidence ‗significantly undermined fundamental elements of the
defendant‘s defense.‘‖ Supra ¶ 77 (citation omitted). In failing to ask
for an in camera proceeding and in failing to create a record
permitting comparison of the rule 412 evidence and the other
evidence anticipated at trial, the defendant leaves us only with his
speculation that the victim‘s sexual experiences with another child
would shed any light on the content and veracity of her testimony.

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Opinion of the Court
We have only unconfirmed assertions about the nature of that
experience, and it was up to the defendant to rectify that situation.
Thus I conclude that in light of the trial court‘s concerns about the
harm to the victim in the admission of the testimony, it was not a
violation of defendant‘s rights and was within the court‘s discretion
to exclude it.

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