2013 UT App 192
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
THOMAS WAYNE DENOS,
Defendant and Appellant.
Opinion
No. 20110959‐CA
Filed August 1, 2013
Third District, West Jordan Department
The Honorable Charlene Barlow
No. 111400098
Harold W. Stone III, Attorney for Appellant
John E. Swallow and Ryan D. Tenney, Attorneys
for Appellee
JUDGE JAMES Z. DAVIS authored this Opinion, in which JUDGE
MICHELE M. CHRISTIANSEN concurred. JUDGE GREGORY K. ORME
concurred in part and dissented in part, with opinion.
DAVIS, Judge:
¶1 Thomas Wayne Denos appeals his conviction of one count
of rape, a first degree felony, see Utah Code Ann. § 76‐5‐402(1), (3)
(LexisNexis 2012); one count of forcible sodomy, a first degree
felony, see id. § 76‐5‐403(2), (4); and one count of forcible sexual
abuse, a second degree felony, see id. § 76‐5‐404(1), (2)(a). We
affirm.
BACKGROUND
¶2 On or about December 11, 2010, Denos and E.M. attended a
party hosted by E.M.’s friend (Friend) and Friend’s boyfriend
State v. Denos
(Boyfriend) at their home. Denos and E.M. were friends and rode
to the party together. Although they had briefly dated previously,
they were not dating at the time of the party. When they arrived at
the party, most of the other guests were drinking heavily.
¶3 At the party, E.M. drank heavily and smoked marijuana. She
soon became noticeably intoxicated. At some point in the evening,
after having consumed copious quantities of alcohol, E.M. made
her way to Friend and Boyfriend’s bedroom. Eventually Boyfriend
joined her and the two had sex. After Boyfriend left, E.M. either fell
asleep or passed out.
¶4 Defense counsel asserted that sometime after Boyfriend left,
another man (Guest) entered the bedroom and attempted to have
sex with E.M. E.M. called out for help, and Denos entered the room
to remove Guest. Denos then stayed in the room with E.M. and lay
down next to her. According to Denos, after laying down by E.M.,
the two began to cuddle and discuss their relationship. After
talking for a few minutes, they began to touch each other and take
off their clothes, and they eventually had consensual sex.
¶5 According to E.M., the “first thing” she remembered after
falling asleep was waking to find Denos on top of her, kissing her
neck and touching her breasts and vagina. E.M. passed out again
and then awoke to find Denos performing oral sex on her. She
pulled his hair and repeatedly told him “no,” but he continued.
E.M. asked Denos to “promise [he would] not have sex with [her]
no matter what,” and he said, “Don’t worry. I promise.” (Internal
quotation marks omitted.) E.M. then passed out a third time and
woke to find Denos “on top of [her] having sex with [her].”
“[B]efore [E.M.] could . . . say anything he pulled out and he
ejaculated on [her] stomach.” E.M. “didn’t know what to do” and
“felt like [she] just needed to go to sleep” and not “worry about
anything.” Denos stayed with her, and they slept in the same bed
until morning.
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State v. Denos
¶6 E.M. testified that when she awoke in the morning she felt
“guilty” and worried that what happened with Denos was “all
[her] fault because . . . [she had] put [herself] in a bad situation” by
drinking and doing “bad things.” Nevertheless, she decided to tell
Friend and Boyfriend what had happened to her. Defense counsel
proffered at trial that E.M. and Boyfriend also confessed their
drunken sexual encounter to Friend at that time. Defense counsel’s
version of events is reflected in the presentence investigation report
prepared after trial, but it is not contained elsewhere in the record.
Friend testified that E.M. was crying when she approached Friend
and Boyfriend about the incident with Denos.
¶7 Based on rule 412 of the Utah Rules of Evidence, and over
defense counsel’s objection, the trial court refused to permit
defense counsel to cross‐examine E.M. about her encounters with
Boyfriend and Guest or her confession to Friend about the incident
with Boyfriend. See generally Utah R. Evid. 412 (prohibiting, with
limited exceptions, “evidence offered to prove that a victim
engaged in other sexual behavior; or . . . to prove a victim’s sexual
predisposition” in “criminal proceeding[s] involving alleged sexual
misconduct”). Denos was permitted to testify only that E.M. had
invited him into the room but not that he went in to remove Guest.
¶8 Also at trial, the court permitted the State to introduce rule
404(b) testimony from three women, K.L., B.A., and B.E., who
claimed to have been victimized by Denos in the past. See generally
id. R. 404(b) (permitting trial courts to admit evidence of prior bad
acts for proper, noncharacter purposes). K.L. testified that in April
2007, she and Denos attended a sleepover at a friend’s house and
ended up sleeping on a large bed together. Despite having agreed
with Denos that each of them would stay on separate halves of the
bed, K.L. woke in the night to find Denos rubbing her genitals over
her underwear. She pushed him away and went back to sleep but
then woke to him doing the same thing again. K.L. elbowed Denos,
and he rolled over and left her alone after that. K.L. did not report
the incident to police.
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State v. Denos
¶9 B.A. testified that in April 2007, Denos and several other
people attended a sleepover at her house. She testified that she fell
asleep while watching a movie and then awoke to find that Denos
had placed her hand on his penis and was rubbing her vagina
“[s]kin to skin.” She told Denos to stop, and he responded,
“‘Please.’” She repeated, “No. Stop,” and got up to go to another
room. B.A. did not report the incident to police.
¶10 B.E. testified that she and Denos both attended a party in
July 2010 and that she had been drinking heavily. The party ended
late at night, and B.E., her brother, and Denos went to her brother’s
house to sleep. B.E.’s brother went to sleep in his room, and B.E.
and Denos went into a back room together with the intention of
sleeping. B.E. dozed off in the house and then awoke to find herself
in Denos’s truck with him on top of her having sex with her. B.E.
did not remember how she got to the truck but believed that she
walked out on her own and was not forced. When she realized that
Denos was having sex with her, she told him to stop. He did not
stop immediately but “stopped after a minute,” and he and B.E.
went back inside the house. They then lay back down together in
the house and stayed there. B.E. reported the incident seven
months later, and Denos was tried and acquitted two weeks before
the trial in this case.
¶11 Defense counsel moved to exclude the rule 404(b) evidence,
but the trial court denied the motion and permitted the women to
testify. The jury convicted Denos of the charges against him, and
he now appeals.
ISSUES AND STANDARDS OF REVIEW
¶12 Denos first asserts that the trial court erred by prohibiting
his counsel from eliciting testimony regarding E.M.’s encounters
with Boyfriend and Guest, arguing that curtailing cross‐
examination in this way was a violation of his Sixth Amendment
confrontation right, see U.S. Const. amend. VI. “We review the trial
20110959‐CA 4 2013 UT App 192
State v. Denos
court’s underlying evidentiary determinations for abuse of
discretion,” but the alleged “[d]enial of the right to confront and
cross‐examine witnesses presents a question of law which is
reviewed for correctness.” State v. Clark, 2009 UT App 252, ¶ 10, 219
P.3d 631 (citation and internal quotation marks omitted).
¶13 Denos next contests the trial court’s determination that the
rule 404(b) evidence was admissible under the circumstances of
this case. We review this determination for an abuse of discretion.
State v. Nelson‐Waggoner, 2000 UT 59, ¶ 16, 6 P.3d 1120.
ANALYSIS
I. Rule 412 Evidence
¶14 Denos asserts that the trial court violated his Sixth
Amendment right to confront witnesses when it excluded evidence
related to E.M.’s encounters with Boyfriend and Guest under rule
412 of the Utah Rules of Evidence. Rule 412 provides, with limited
exceptions, that “evidence offered to prove that a victim engaged
in other sexual behavior” and “evidence offered to prove a victim’s
sexual predisposition” is “not admissible in a criminal proceeding
involving alleged sexual misconduct.” Utah R. Evid. 412(a). One
exception to this rule permits the trial court to admit such evidence,
where otherwise admissible under the rules, if its “exclusion would
violate the defendant’s constitutional rights.” Id. R. 412(b).
[A] criminal defendant states a violation of the
Confrontation Clause by showing that he was
prohibited from engaging in otherwise appropriate
cross‐examination designed to show a prototypical
form of bias on the part of the witness, and thereby
to expose to the jury the facts from which jurors . . .
could appropriately draw inferences relating to the
reliability of the witnesses.
20110959‐CA 5 2013 UT App 192
State v. Denos
Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986) (omission in
original); accord State v. Clark, 2009 UT App 252, ¶ 16, 219 P.3d 631.
A. The Evidence Relating to Guest Was Not Subject to
Exclusion Under Rule 412, but Its Exclusion Constituted
Harmless Error.
¶15 First, we are not convinced that evidence relating to E.M.’s
encounter with Guest fell within the ambit of rule 412, which
excludes only evidence of a victim’s “sexual behavior” and “sexual
predisposition.” See Utah R. Evid. 412(a). “Past sexual behavior
connotes all activities that involve actual physical conduct (i.e.
sexual intercourse and sexual contact) or that imply sexual
intercourse or sexual contact,” such as the birth of an illegitimate
child, evidence of venereal disease, or use of contraceptives, as well
as “mental activities, such as fantasies or dreams.” Id. R. 412
advisory committee note. Evidence relating to a victim’s sexual
predisposition includes “evidence of the alleged victim’s dress,
speech, or life‐style.” Id.
¶16 Evidence that Denos entered the room where E.M. was
sleeping in order to remove Guest, who was attempting to assault
E.M., does not relate to E.M.’s sexual behavior or predisposition. If
anything, this evidence makes E.M. appear less sexually
promiscuous because it portrays her rejecting a man who was
attempting to have sex with her. As Denos observes, this evidence
“certainly might reflect on [Guest]’s sexual proclivities” but does
not reflect on E.M.’s. Accordingly, it is not subject to exclusion
under rule 412.1 Cf. State v. Martin, 2002 UT 34, ¶ 42, 44 P.3d 805
(rejecting the trial court’s conclusion that evidence that the victim
had previously accepted rides with strangers reflected her sexual
proclivities and was inadmissible under rule 412).
1. Because evidence relating to E.M.’s encounter with Guest did not
fall within the ambit of rule 412, Denos was also not required to file
a motion in order to introduce it. Cf. infra ¶ 18.
20110959‐CA 6 2013 UT App 192
State v. Denos
¶17 Nevertheless, the trial court’s exclusion of this evidence was
harmless beyond a reasonable doubt because the evidence was of
little, if any, probative value. See generally State v. Vigil, 2013 UT
App 167, ¶ 11 (“‘[A]n otherwise valid conviction should not be set
aside if the reviewing court may confidently say, on the whole
record, that the constitutional error was harmless beyond a
reasonable doubt.’” (quoting Van Arsdall, 475 U.S. at 681)). Denos
was not prevented from asking E.M. whether he entered and
remained in the room at E.M.’s invitation or from testifying to that
himself. Indeed, Denos testified at trial that after most of the other
guests had left, E.M. “came out and asked [him] if [he would] stay
in the room with her” and that he then “went in the room and laid
down with her.” Denos asserts that without evidence that he went
into the room to get rid of Guest, it was “possible that the jury
received the . . . impression that Denos invited himself [into] the
room with E.M. in a predatory fashion” and that Denos, having
seen E.M. enter the room in her inebriated state, “saw his
opportunity to take advantage of an extremely intoxicated girl.”
We disagree. This impression, if it existed, could easily be
overcome by testimony suggesting that Denos was invited into the
room, regardless of whether testimony relating to the reason for the
invitation were permitted.2 Accordingly, although we agree with
Denos that the evidence relating to Guest did not fall within the
purview of rule 412, its exclusion was harmless beyond a
reasonable doubt. See id.
2. When asked about the incident at trial, E.M. did not corroborate
Denos’s story that he was invited into the room, but testified, “The
first thing I remember is him on top of me.” There is also some
indication that the incident with Guest occurred even prior to
E.M.’s encounter with Boyfriend and had nothing to do with
Denos. In short, it is not at all clear whether the incident with Guest
was even relevant to show how Denos ended up in the room with
E.M., see generally Utah R. Evid. 401; id. R. 402, or that cross‐
examining E.M. about this incident would have helped Denos’s
defense.
20110959‐CA 7 2013 UT App 192
State v. Denos
B. The Evidence Relating to Boyfriend Was Properly Excluded
Under Rule 412 Because Denos Failed to File a Pretrial
Motion for Its Admission and the State Did Not Open the
Door to the Evidence at Trial.
¶18 The evidence relating to Boyfriend clearly related to E.M.’s
sexual behavior and was therefore subject to the dictates of rule
412. A party who seeks to offer rule 412 evidence must “file a
motion that specifically describes the evidence and states the
purpose for which it is to be offered . . . at least 14 days before trial
unless the court, for good cause, sets a different time.” Utah R.
Evid. 412(c)(1). The motion is to be served on all parties, and notice
given to the alleged victim. Id. R. 412(c)(1)(C), (c)(2). The trial court
then conducts an in camera review of the evidence to evaluate its
admissibility. Id. R. 412(c)(3). Denos filed no such motion, and no
hearing was ever held.3 Therefore, Denos waived his right to
confront the witnesses about the encounter with Boyfriend.4
3. Denos’s failure to file a motion and request a hearing was not
only contrary to rule 412 but also resulted in an incomplete record
on appeal. There is little if any evidence in the record to show what
the witnesses would have testified to had Denos been permitted to
cross‐examine them as he wished. Rather, the record contains only
the assertions of Denos’s counsel about what he believed the
witnesses would testify to.
4. Denos asserts that we cannot affirm the trial court’s ruling on
this basis because the State did not preserve its argument that
admission of the evidence was precluded by Denos’s failure to file
a rule 412 motion. However, “the primary purpose of the
preservation rule” is to ensure that “[c]laimed errors [are] raised
before trial courts in such a manner that the trial courts have a
meaningful opportunity to correct them.” Tschaggeny v. Milbank Ins.
Co., 2007 UT 37, ¶ 22, 163 P.3d 615 (emphasis added); see also Badger
v. Brooklyn Canal Co., 966 P.2d 844, 847 (Utah 1998) (“The purpose
of [the preservation] requirement[] is to put[] the judge on notice
(continued...)
20110959‐CA 8 2013 UT App 192
State v. Denos
¶19 Denos alternatively argues that even if his failure to file a
rule 412 motion precluded him from introducing the evidence
relating to Boyfriend, the State opened the door to that evidence
when it questioned E.M. and Friend about E.M.’s demeanor the
morning after her encounters with Boyfriend and Denos. E.M.
testified that she felt “guilty” and “stupid” because she had “been
reckless and . . . done bad things” and that she believed what had
happened to her the night before had been “[her] fault.” Friend
testified that E.M. began crying when she encountered Friend the
next morning. Denos asserts that “fundamental fairness” required
the trial court to permit him to cross‐examine the witnesses about
the encounter with Boyfriend so the jury could be given an
alternative explanation for E.M.’s emotions, i.e., her guilt over
having slept with her friend’s boyfriend.
¶20 In part due to the incomplete record, which fails to provide
any insight into what Friend and E.M. would have testified to had
4. (...continued)
of the asserted error and allow[] the opportunity for correction at
that time in the course of the proceeding.” (third and fourth
alterations in original) (emphasis added) (citation and internal
quotation marks omitted)). While the preservation requirement
generally precludes us from reversing the trial court’s decision for
errors claimed for the first time on appeal, it is well settled that we
may affirm a judgment on any ground apparent on the record,
regardless of whether that ground was urged below. Limb v.
Federated Milk Producers Ass’n, 461 P.2d 290, 293 n.2 (Utah 1969); see
also Bailey v. Bayles, 2002 UT 58, ¶ 13 & n.3, 52 P.3d 1158. See
generally id. ¶ 10 (“It is well settled that an appellate court may
affirm the judgment appealed from if it is sustainable on any legal
ground or theory apparent on the record, even though such ground
or theory differs from that stated by the trial court to be the basis
of its ruling or action, and this is true even though such ground or
theory . . . was not raised in the lower court, and was not
considered or passed on by the lower court.” (citation and internal
quotation marks omitted)).
20110959‐CA 9 2013 UT App 192
State v. Denos
they been cross‐examined as Denos requested, see supra note 3, we
agree with the trial court that there is nothing to indicate that E.M.
felt guilty or was crying “mostly because of [having had] sex with
her best friend’s boyfriend.” And while “[t]here may have been
other things that factored into [her demeanor], . . . it was [not]
sufficient to allow [the court] to go against [rule] 412,” particularly
where “[t]he issue [was] not whether the intercourse happened”
but whether E.M. consented to the intercourse. Cf. State v. Tarrats,
2005 UT 50, ¶ 21, 122 P.3d 581 (“Even where [rule 412] evidence
bears some marginal relevance, it has an unusual propensity to
unfairly prejudice, inflame, or mislead the jury and is likely to
distort the jury’s deliberative process and should therefore be
excluded.” (citations and internal quotation marks omitted)). The
fact that E.M. felt guilty and cried about the decisions she had
made the night before did not have a significant impact on the
consent issue one way or the other because it could just as easily
have been explained by E.M. feeling regret about having consented
to sex with Denos in her inebriated state as by trauma over having
been raped. In other words, Denos did not need to introduce
evidence regarding the incident with Boyfriend in order to provide
the jury with an alternative explanation for E.M.’s emotions, and
the testimony about E.M.’s demeanor did not inappropriately
mislead the jury in such a way as to require that the evidence about
Boyfriend be admitted out of concern for “fundamental fairness.”5
II. Rule 404(b) Evidence
¶21 Denos next contends that the trial court erred in permitting
the rule 404(b) witnesses to testify. Evidence sought to be admitted
5. The dissent asserts that permitting cross‐examination on this
issue would not have necessarily implicated rule 412, suggesting
that E.M. may have felt guilty and cried for any number of reasons,
not specifically for having slept with Boyfriend. See infra ¶ 32.
However, it is clear from the discussion between defense counsel
and the trial court that defense counsel intended specifically to ask
E.M. about the incident with Boyfriend.
20110959‐CA 10 2013 UT App 192
State v. Denos
under rule 404(b) must withstand a three‐part inquiry. State v.
Nelson‐Waggoner, 2000 UT 59, ¶¶ 18–20, 6 P.3d 1120. First, it must
be “offered for a proper, noncharacter purpose,” id. ¶ 18, “such as
proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident,” Utah R. Evid.
404(b)(2). Second, the evidence must be admissible under rule 402,
that is, it must be relevant to the noncharacter purpose identified.
See Nelson‐Waggoner, 2000 UT 59, ¶ 19; see also Utah R. Evid. 402.
See generally id. R. 401 (defining relevant evidence as evidence
having “any tendency to make a fact more or less probable than it
would be without the evidence” where “the fact is of consequence
in determining the action”). Finally, the evidence must be
admissible under rule 403, that is, its probative value may not be
“‘substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of
cumulative evidence.’” Nelson‐Waggoner, 2000 UT 59, ¶ 20 (quoting
Utah R. Evid. 403).
¶22 In this case, the State sought to introduce rule 404(b)
testimony for the proper noncharacter purpose of proving lack of
consent. See generally id. ¶ 24 (explaining that rule 404(b) evidence
could be “admitted for the noncharacter purpose of proving the
element of lack of consent in certain rape trials”). This evidence
was relevant to lack of consent because it suggested that Denos had
victimized other women “in a strikingly similar manner.” See id. As
our supreme court recently explained,
When one person claims rape, the unusual and
abnormal element of lying by the complaining
witness may be present. But when two (or more)
persons tell similar stories, the chances are reduced
that both are lying or that one is telling the truth and
the other is coincidentally telling a similar false story.
State v. Verde, 2012 UT 60, ¶ 48, 296 P.3d 673 (citation and internal
quotation marks omitted). Denos asserts that the events recounted
20110959‐CA 11 2013 UT App 192
State v. Denos
by the rule 404(b) witnesses were not similar to the events that
occurred in this case because the type of sexual activity varied with
each of the three witnesses: K.L. alleged that Denos touched her
genitals over her underwear, B.A. alleged that he touched her
genitals under her underwear, and B.E. alleged rape but no
fondling. E.M. alleged that Denos fondled her breasts in addition
to her genitals and that Denos performed oral sex on her—actions
none of the other witnesses alleged. While this may be true, other
similarities make this evidence relevant: all of the alleged victims
were acquaintances of Denos; all of them were assaulted
immediately following a party, late at night after the victim and
other party‐goers had either fallen asleep or passed out; and most
striking, Denos assaulted all of the women while they were either
asleep or unconscious, apparently in order to avoid seeking their
consent. Cf. State v. Marchet (Marchet III), 2012 UT App 267,
¶¶ 9–10, 287 P.3d 490 (rejecting the argument that “‘a lesser sexual
advance . . . not amounting to aggravated sexual assault, rape or
sodomy’” and variations in the defendant’s specific sexual
behavior precluded the admissibility of a rule 404(b) witness’s
testimony where other circumstances of the assault were consistent
with the defendant’s modus operandi (omission in original)). The
low probability that all of these women would independently, but
falsely, have reported such similar experiences makes the evidence
relevant for the noncharacter purpose of proving lack of consent.
¶23 We next turn to the question of whether the danger of unfair
prejudice substantially outweighed the probative value of the rule
404(b) evidence. In analyzing this question, we employ what have
come to be known as the Shickles factors, which include
the strength of the evidence as to the commission of
the other crime, the similarities between the crimes,
the interval of time that has elapsed between the
crimes, the need for the evidence, the efficacy of
alternative proof, and the degree to which the
evidence probably will rouse the jury to
overmastering hostility.
20110959‐CA 12 2013 UT App 192
State v. Denos
State v. Shickles, 760 P.2d 291, 295–96 (Utah 1988). We address each
factor in turn.
¶24 First, the evidence was generally strong because the
witnesses “testified in person at trial and were available for cross‐
examination,” see State v. Marchet (Marchet I), 2009 UT App 262,
¶ 45, 219 P.3d 75. However, the strength of B.E.’s testimony was
undermined by the fact that Denos had been acquitted of raping
her only two weeks before the trial in this case, though any
prejudice was mitigated by the fact that the jury was informed of
the acquittal. Cf. Nelson‐Waggoner, 2000 UT 59, ¶ 31 (indicating that
a defendant’s acquittal on an alleged rape to which a rule 404(b)
witness testified made her testimony “suspect”); State v. Hildreth,
2010 UT App 209, ¶ 44, 238 P.3d 444 (explaining that acquittal on
charges relating to the testimony of a rule 404(b) witness
“undercut[s] the credibility of the [witness’s] testimony”). Thus,
while this factor weighs in favor of admitting K.L.’s and B.A.’s
testimony, it may weigh against admitting B.E.’s testimony.
¶25 Second, as discussed above, the events were strikingly
similar. In particular, they demonstrate that Denos had a habit of
assaulting women while they were unconscious or asleep. The
likelihood that four different women would independently and
falsely assert this particular modus operandi is low.
¶26 Third, at least as to B.E., the interval of time between the two
crimes was small. The assault on E.M. took place less than five
months after the assault on B.E., and even Denos concedes that this
“would not be considered particularly lengthy.” However, the
incidents with K.L. and B.A. took place more than three‐and‐a‐half
years before Denos’s assault of E.M. and more than three years
before his alleged assault of B.E., which leads this factor to weigh
against admission as to those two witnesses’ testimonies. Cf.
Hildreth, 2010 UT App 209, ¶ 44 & n.12 (holding that a three‐year
interval was “undoubtedly” lengthy). But cf. Marchet I, 2009 UT
App 262, ¶ 45 (holding that a nearly two‐and‐a‐half‐year interval
was “sufficiently proximate to warrant . . . admission”).
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State v. Denos
¶27 Fourth, the need for the evidence was great; without it, “the
jury would be left to resolve a contest of credibility between”
Denos and E.M. See Marchet I, 2009 UT App 262, ¶ 45 (internal
quotation marks omitted). And fifth, there was no alternative
means of proving lack of consent that would be similarly effective.
See id.
¶28 Finally, it is unlikely that the jury would have been roused
to overmastering hostility by the rule 404(b) evidence. K.L.’s and
B.A.’s testimonies revealed less disturbing behavior than that
alleged in the case at hand, and B.E.’s testimony revealed more or
less equally disturbing behavior. See generally State v. Reed, 2000 UT
68, ¶ 31, 8 P.3d 1025 (“[E]vidence of multiple acts of similar or
identical abuse is unlikely to prejudice a jury.”); State v. Northcutt,
2008 UT App 357, ¶ 15, 195 P.3d 499 (explaining that where the
incident at issue is “more disturbing” than the ones described by
the rule 404(b) evidence, that evidence is “not likely to rouse the
jury to overmastering hostility” (citation and internal quotation
marks omitted)).
¶29 Thus, at least five of the six Shickles factors weigh in favor of
admitting each rule 404(b) witness’s testimony. Because this
testimony complies with the requirements of rules 402, 403, and
404 of the Utah Rules of Evidence, we cannot say that the trial court
abused its discretion in admitting it.
CONCLUSION
¶30 Although the incident with Guest was not presumptively
inadmissible under rule 412, its exclusion was harmless beyond a
reasonable doubt. Furthermore, the trial court did not err by
excluding evidence relating to the incident with Boyfriend because
Denos failed to file a motion to admit the evidence and the State
did not open the door to the evidence at trial. Finally, we agree
with the State that the trial court did not abuse its discretion in
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State v. Denos
admitting the rule 404(b) evidence. Accordingly, we affirm Denos’s
convictions.
ORME, Judge (concurring in part and dissenting in part):
¶31 I concur in the lead opinion except for its conclusion that
Denos’s failure to file a timely rule 412 motion precluded him from
cross‐examining E.M., who was only seventeen at the time of the
incident, about why she felt “‘guilty’ and ‘stupid’ because she had
‘been reckless and done bad things’” and from cross‐examining
Friend about the circumstances of E.M.’s crying “when she
encountered Friend the next morning.” These were topics
introduced by the State’s witnesses and Denos had every right to
examine E.M. and Friend about their testimony.
¶32 There is nothing in this testimony that would necessarily
implicate rule 412 or the policy underlying it. For all we know,
E.M. would explain that she felt guilty and stupid for drinking too
much, that she was reckless for using illegal drugs, and that she
had done bad things because she stole money from her friends’
purses during the party. For all we know—and the lead opinion
points out that there is little or nothing in the record bearing on
what the testimony would have been had Denos been permitted to
pursue his intended cross‐examination—Friend would have
explained that E.M. was upset because she did not have permission
to stay the night and was going to be in big trouble when she got
home.
¶33 I do agree that if the testimony were along these or similar
lines, Denos’s failure to comply with rule 412 would have
precluded him from directly asking about prior sexual conduct on
E.M.’s part. But if E.M.’s or Friend’s answers included disclosures
about prior sexual conduct by E.M., the responsibility would not
lie with Denos and rule 412 would not apply. If the scenario played
out that way, it would be fair to regard the State—or at least these
20110959‐CA 15 2013 UT App 192
State v. Denos
witnesses—as having opened the door by introducing the subjects
of guilt, stupidity, recklessness, “bad things,” and crying.
¶34 It was categorically unfair to permit the witnesses to trot
these characterizations out yet preclude Denos from subjecting
them to cross‐examination, thereby leaving the jury to speculate
about what explained the behaviors vaguely touched upon by E.M.
and Friend. Because Denos’s right to cross‐examine this testimony
was preempted completely, and not just to the extent of his asking
directly about E.M.’s prior sexual conduct, his confrontation rights
were violated. For this reason, I would reverse his convictions and
remand for a new trial.
20110959‐CA 16 2013 UT App 192