State v. Thornton

2014 UT App 265
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
ROBERT DAMIEN THORNTON,
Defendant and Appellant.

Opinion
No. 20121086-CA
Filed November 14, 2014

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

Debra M. Nelson and Brenda M. Viera, Attorneys
for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee

JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.

PEARCE, Judge:

¶1 Robert Damien Thornton appeals from his conviction of
three counts of rape of a child, three counts of sodomy on a child,
three counts of aggravated sexual abuse of a child, and one count
of witness tampering, all of which resulted from his alleged sexual
abuse of his roommate’s twelve-year-old daughter (Child).
Thornton argues that the district court erred by excluding evidence
of Child’s other sexual activity and by admitting evidence that
Thornton had supplied Child’s mother (Mother) with drugs and
encouraged Mother to prostitute herself. We determine that the
district court properly excluded testimony concerning Child’s other
sexual activity. However, we conclude that the district court
 State v. Thornton

abused its discretion by admitting the evidence of Thornton’s prior
bad acts without scrupulously examining and balancing the
probative value and prejudicial effect of that evidence. We reverse
Thornton’s convictions and remand for further proceedings.

BACKGROUND

¶2 In 2010, Child lived with her stepfather and Mother in a
two-bedroom residence.1 Around October 2010, Child’s stepfather
was incarcerated. Thornton and his girlfriend then moved in with
Child and Mother and began to live in Child’s bedroom.

¶3 Mother had suffered from chronic pain throughout her life
and would visit a methadone clinic every morning for treatment.
When Thornton moved in, he agreed to provide Mother crack
cocaine as rent, which fed Mother’s substance abuse problem. As
Mother’s dependency increased, Thornton told Mother that she
needed to make money to pay for the drugs he was giving her.
Thornton proposed that Mother prostitute herself. Mother did so.
Mother would often bring clients home and conduct her business
while Child was in the home. As Mother’s drug addiction
intensified, she increasingly neglected Child. Child went some days
without eating. Although Child had been a straight-A student, she
stopped attending school.

¶4 In early November 2010, Thornton’s girlfriend was
incarcerated, and his relationship with Child changed. Thornton

1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence only
as necessary to understand issues raised on appeal.” State v. Bluff,
2002 UT 66, ¶ 2, 52 P.3d 1210 (citation and internal quotation marks
omitted). However, in light of our reversal of Thornton’s
convictions, we emphasize that many of the facts presented are
more accurately described as allegations that have yet to be
established by a valid jury verdict.

20121086-CA 2 2014 UT App 265
 State v. Thornton

began giving her “creepy looks” and patting her on the buttocks.
One morning, while Mother was at the methadone clinic, Thornton
either lured or dragged Child into her bedroom and had sexual
intercourse with her while holding a pillow over her face. Child
tried to fight Thornton off but could not do so. Child later testified
that “[i]t hurt really bad” like she “was being ripped open.” She
also testified that Thornton ejaculated, that it “stung really bad”
when she urinated afterward, and that there was “white gooey
stuff” in her urine. Child testified that she initially did not tell
Mother about Thornton’s abuse, in part because Child did not think
Mother would care due to her drug abuse and because Thornton
threatened to kill Child and Mother if Child revealed what he was
doing to her.

¶5 Over the next two months, Thornton had sex with Child
almost every morning when Mother went to the methadone clinic.
Thornton forced Child to perform various sex acts that would
eventually form the basis of the charges against him. Child initially
tried to stop Thornton, but she soon gave up. Thornton became
more attentive to Child and would give her gifts, and Child began
to think of their relationship as a “boyfriend/girlfriend type of
relationship.” When Mother attempted on several occasions to kick
Thornton out, Child convinced her to let him stay. Child also wrote
several notes to Thornton expressing her love for him, at least one
of which expressed her belief that he had impregnated her.

¶6 On the morning of December 31, 2010, Child told Mother
that Child thought she was pregnant by Thornton. Mother
confronted Thornton, who responded by insulting Mother and
telling her that she would never be able to see the baby. Thornton
then told Mother that he was going to sit down and wait for the
police to come and arrest him. Mother went to a neighbor’s house,
and the police were called.

¶7 The police arrested both Thornton and Mother on
outstanding warrants. Child was taken to a group home. Child
denied Thornton’s sexual abuse during her first interview with a
detective, explaining that Thornton was old, ugly, and looked like
“a hobo.” After that interview, Child’s protective-services case

20121086-CA 3 2014 UT App 265
 State v. Thornton

worker informed Child that Thornton was in jail. At that point, she
agreed to meet with the detective again. In her second interview,
she told the detective that Thornton had been having sex with her.

¶8 On January 19, 2011, a family nurse practitioner examined
Child and determined that her hymen was intact. However, the
nurse also noted that, due to her physical maturity level, Child’s
hymen was elastic such that penetration would not necessarily
have caused injury. The examination did not include the
completion of a rape kit, because of the time that had elapsed since
the last sexual interaction between Child and Thornton. The nurse
practitioner conducted a pregnancy test, which indicated that Child
was not pregnant.

¶9 Forensic testing of clothing recovered from Child’s room
revealed seminal fluid bearing Thornton’s DNA. Investigators were
unable to detect Child’s DNA on the clothing. Thornton had
previously admitted to police that he had engaged in sexual
activity in Child’s room while living there, but he denied any sex
with Child.

¶10 The State brought multiple charges against Thornton arising
from Child’s allegations. The case has been tried three times. Before
each of his three trials, Thornton moved to admit evidence that
Child had been sexually active with another individual during the
same time period that Thornton was accused of abusing her. This
evidence included Child’s statements from the preliminary hearing
that she had been having sex with a male friend and that Mother
knew about it and did not approve. Thornton sought admission of
the evidence to show an alternate source for Child’s belief that she
was pregnant and to rebut the inference that a jury might draw that
twelve-year-old Child was a sexual innocent lacking “advanced
sexual knowledge.” Four different district court judges considered
Thornton’s motion over the course of the three trials. All four
judges denied the motion pursuant to rule 412 of the Utah Rules of
Evidence.

¶11 Before the first trial, the parties agreed to exclude the
evidence that Thornton had supplied drugs to Mother and had

20121086-CA 4 2014 UT App 265
 State v. Thornton

encouraged her to prostitute herself to pay for them. Nevertheless,
Mother testified that she “was not a prostitute until [Thornton]
moved into my house . . . and told me how to do it.” Thornton
moved for a mistrial, arguing that Mother’s testimony violated the
parties’ pretrial agreement. The district court agreed and declared
a mistrial.

¶12 The parties entered into a similar stipulation before the
second trial, again agreeing to exclude evidence of Thornton’s
other bad acts involving drugs and prostitution. After the second
trial ended in a hung jury and the resulting declaration of another
mistrial, the State decided that it needed to introduce the drug and
prostitution evidence. The State sought to admit the evidence
pursuant to rule 404(b) of the Utah Rules of Evidence, arguing that
“the jury need[ed] to know what was actually going on in that
home” to explain why Thornton was in the home, why he was
alone with Child so often, and why Mother did not kick him out
despite his abusive behavior. The State explained,

There is this huge gap, all of these questions as to
why. Why was this happening? Why was [Mother]
allowing this situation? It creates this gap that the
jury starts—the jury is going to wonder, the jury is
going to start to speculate and fill in what was going
on.

The State further represented that, based on its interviews of the
jurors from the second trial, “that’s exactly what happened at the
last trial and why it was a hung jury.”

¶13 The district court granted the State’s motion after the State
clarified that it was not going to use inflammatory language such
as “pimp” or “crack-dealer.” The district court instructed the jury
that the evidence was to be used only “for the limited purpose of
determining Defendant’s position of power or trust in the
household or in understanding the victim’s behavior” and that it
was not to be used as a separate basis for punishing Thornton or to
evaluate his character.

20121086-CA 5 2014 UT App 265
 State v. Thornton

¶14 The third jury convicted Thornton on all counts. Thornton
appeals his convictions.

ISSUES AND STANDARDS OF REVIEW

¶15 Thornton argues that the district court erred by excluding
evidence of Child’s sexual history, asserting that the evidence was
admissible under rule 412 of the Utah Rules of Evidence and that
its exclusion violated his constitutional rights. “We review the trial
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. Denos, 2013 UT App 192, ¶ 12,
319 P.3d 699 (citation and internal quotation marks omitted).

¶16 Thornton also challenges the district court’s admission of
evidence that he had supplied drugs to Mother and encouraged her
involvement in prostitution. “A trial court’s admission of prior bad
acts evidence is reviewed for abuse of discretion, but the evidence
must be scrupulously examined by trial judges in the proper
exercise of that discretion.” State v. Verde, 2012 UT 60, ¶ 13, 296 P.3d
673 (citation and internal quotation marks omitted); see also Utah R.
Evid. 404(b) (governing the admission of evidence of “crime[s],
wrong[s], or other act[s]”).

ANALYSIS

I. Evidence of Child’s Other Sexual Activity

¶17 Thornton challenges the district court’s exclusion of
evidence regarding Child’s other sexual activity. Thornton asserts
that Child’s sexual relationship with a male friend overlapped the
time period she alleges Thornton abused her.2 On appeal, Thornton

2. The evidence partly consisted of Child’s preliminary hearing
testimony. The district court had allowed limited questioning about
(continued...)

20121086-CA 6 2014 UT App 265
 State v. Thornton

argues that this evidence should have been admitted under rule
412 of the Utah Rules of Evidence, which governs—and generally
prohibits—admission of evidence that a victim has engaged in
other sexual activity. See Utah R. Evid. 412.

¶18 Thornton contends that the evidence of Child’s sexual
history qualifies for admission under two exceptions contained in
rule 412. First, he argues that the evidence is admissible to
demonstrate that someone else was “the source of semen, injury,
or other physical evidence.” Id. R. 412(b)(1). Second, he argues that
the evidence must be admitted because its “exclusion would violate
[his] constitutional rights.” Id. R. 412(b)(3).

A. Alternate Source of Physical Evidence

¶19 Rule 412(b)(1) states that the district court “may admit the
following evidence if the evidence is otherwise admissible under
these rules: (1) evidence of specific instances of a victim’s sexual
behavior, if offered to prove that someone other than the defendant
was the source of semen, injury, or other physical evidence.” Id. R.
412(b)(1). “Where the prosecution has directly or indirectly asserted
that . . . physical evidence originated with the accused, the
defendant must be afforded an opportunity to prove that another
person was responsible.” Id. R. 412 advisory committee note (citing
United States v. Begay, 937 F.2d 515, 523 & n.10 (10th Cir. 1991)).

¶20 Thornton argues that the evidence of Child’s sexual activity
was admissible under rule 412(b)(1) to show that someone other
than he was the source of Child’s belief that she was pregnant and
to explain how she could provide graphic descriptions of sexual
acts. Child testified that she first reported Thornton’s abuse to
Mother because Child believed that she was pregnant with

2. (...continued)
Child’s other sexual activity at the preliminary hearing, apparently
based on defense counsel’s representation that the questions went
to “identification issues.” We have not been asked to review the
propriety of that questioning.

20121086-CA 7 2014 UT App 265
 State v. Thornton

Thornton’s child.3 Thornton argues that Child’s belief that she was
pregnant constitutes “physical evidence” under rule 412(b)(1), and
that the district court should have allowed evidence of Child’s
other sexual activity to show an alternate source for Child’s belief.
Thornton also asserts, without explanation, that Child’s “advanced
sexual knowledge” was physical evidence falling within the rule
412(b)(1) exception.

¶21 We agree with the State that neither Child’s pregnancy belief
nor her sexual knowledge constitutes “semen, injury, or other
physical evidence.” See id. R. 412(b)(1). By its plain language, the
rule 412(b)(1) exception operates only as a mechanism to challenge
the source of physical evidence. See Burns v. Boyden, 2006 UT 14,
¶ 19, 133 P.3d 370 (stating that court rules should be interpreted
“according to their plain language”). Thornton has not directed this
court to any authority that stretches the language “semen, injury,
or other physical evidence” to include mental states such as a
victim’s belief that she is pregnant or her knowledge regarding
sexual matters. Nor has he provided reasoned argument as to why
the plain language of rule 412(b)(1) should be interpreted to
include the belief or knowledge at issue in this case. In the absence
of either authority or reasoned argument to support a conclusion
that Child’s belief or knowledge constitutes physical evidence, we
reject Thornton’s argument. See id.

B. Constitutional Requirements

¶22 Thornton further asserts that the district court should have
admitted the evidence of Child’s other sexual activity because it
constituted “evidence whose exclusion would violate [his]
constitutional rights.” Utah R. Evid. 412(b)(3). Specifically,
Thornton posits that admission of the evidence was required to
vindicate his constitutional rights to conduct reasonable cross-
examination and present a complete defense. See State v. Marks,
2011 UT App 262, ¶ 13, 262 P.3d 13 (stating that the United States

3. We note that there is no indication in the record that Thornton
attempted to exclude evidence that Child believed she was
pregnant.

20121086-CA 8 2014 UT App 265
 State v. Thornton

Constitution “guarantees criminal defendants a meaningful
opportunity to present a complete defense,” which “includes the
right to conduct reasonable cross-examination” (citations and
internal quotation marks omitted)).

¶23 Thornton contends that he had a constitutional right to
present evidence that Child was not a “sexual innocent” who
would be unable to describe graphic sexual details unless her
accusations against Thornton were truthful. See generally id.
¶¶ 33–43 (discussing the “sexual innocence inference” that children
lack knowledge about sexual matters and are therefore incapable
of fabricating detailed allegations of sexual acts). Thornton argues
that the sexual innocence inference bolstered Child’s credibility and
that he was entitled to use her other sexual activity to attack that
credibility, to explain her advanced knowledge of sexual matters,
and to explain her ability to give “explicit testimony regarding
physical sensations” she allegedly experienced during sex with
Thornton. Thornton also claims that the State took advantage of the
district court’s exclusion of the rule 412 evidence by relying heavily
on the sexual innocence inference to obtain his convictions.

¶24 “Utah, like most other jurisdictions, recognizes the relevance
of the complainant’s past sexual conduct to rebut the sexual
innocence inference in appropriate cases.” Id., ¶ 36. “However, as
with the introduction of sexual activity evidence generally, its
admission for purposes of rebutting a sexual innocence inference
is highly dependent upon the facts and circumstances of the
particular case.” Id.

In most cases, “the probative value of evidence of a
child’s alternative source of sexual knowledge will
. . . be inversely proportional to the child’s age, for
the younger the child, the stronger the likelihood of
a jury inference that the child would be too sexually
innocent to have fabricated the allegations against
the defendant.”

Id. ¶ 37 (omission in original) (quoting State v. Molen, 231 P.3d 1047,
1052 (Idaho Ct. App. 2010)).

20121086-CA 9 2014 UT App 265
 State v. Thornton

¶25 Here, Child was twelve years old at the time she made her
initial allegations against Thornton. Thornton argues that this court
has, in two cases, acknowledged that “‘[t]he average juror would
perceive the average twelve-year-old girl as a sexual innocent.’” Id.
¶ 35 (quoting Butterfield v. Cook, 817 P.2d 333, 339 (Utah Ct. App.
1991)). However, in both of those cases, the language characterizing
twelve-year-old girls as sexual innocents does not represent the
court’s holding but instead describes how another jurisdiction has
applied the sexual innocence inference.4 We do not read either case
as standing for the proposition that a jury will always consider a
twelve-year-old to be a sexual innocent.

¶26 Regardless of the sexual knowledge a jury might be willing
to impute to today’s average twelve-year-old, the issue before us
is whether the district court erred in excluding evidence of Child’s
sexual activity under “the facts and circumstances of [this]
particular case.” Id., ¶ 36. We conclude that the district court did
not err in excluding the evidence. The relationship between the
proffered evidence and the possible inference that Child was too
sexually innocent to have fabricated her allegations is not such that
excluding the evidence violated Thornton’s constitutional rights.5

4. The original language regarding “the average twelve-year-old
girl” comes from State v. Howard, 426 A.2d 457, 462 (N.H. 1981). See
State v. Marks, 2011 UT App 262, ¶ 35, 262 P.3d 13; Butterfield v.
Cook, 817 P.2d 333, 339 (Utah Ct. App. 1991). The Howard court
opined on the sexual knowledge possessed by twelve-year-olds
more than three decades ago. We need not speculate on the sexual
knowledge possessed by today’s average preteen to resolve this
case.

5. Thornton argues in his reply brief that he should not be faulted
for the paucity of evidence regarding Child’s prior sexual behavior
because the district court prevented him from “exploring or
developing detailed facts about [Child’s] admitted consensual
sexual relationship.” However, this court has rejected “the use of
a rule 412 hearing to explore [the accuser’s] sexual past” and held
that “a rule 412 hearing is not a discovery tool.” State v. Clark, 2009
(continued...)

20121086-CA 10 2014 UT App 265
 State v. Thornton

This is true as to each of Thornton’s arguments that admission of
the evidence was constitutionally required.

¶27 Thornton argues that the excluded sexual activity evidence
was required to rebut the inference that Child was telling the truth
about Thornton’s abuse because she lacked the sexual
sophistication to fabricate her accusations. The district court relied
on State v. Moton, 749 P.2d 639 (Utah 1988), to conclude that the
evidence need not be admitted because Child’s exposure to sexual
knowledge could be established by other means. See id. at 644
(affirming the exclusion of rule 412 evidence because it was “not
necessary to establish that [the victim] had the knowledge required
to fabricate an accusation against defendant”).

¶28 Specifically, the district court observed that Mother “was a
prostitute who conducted her business in their home” and that
Child “was aware of her mother’s conduct.” In light of this unusual
home environment, we cannot characterize Child as an “average
twelve-year-old girl” with regard to her likely knowledge of sexual
matters. See State v. Marks, 2011 UT App 262, ¶ 35, 262 P.3d 13
(citation and internal quotation marks omitted). We agree with the
district court that Child’s exposure to Mother’s activities makes it
unlikely that the jury would have viewed Child as a “sexual
innocent.” Accordingly, we affirm the district court’s refusal to
admit the rule 412 evidence to rebut any inference that Child was
ignorant of sexual matters.

¶29 Thornton next argues that admission of the evidence was
necessary to challenge Child’s credibility. To the extent this
credibility argument is premised on Child’s presumed ignorance
of sexual matters, we have rejected that argument above.

5. (...continued)
UT App 252, ¶ 28 n.8, 219 P.3d 631 (alteration in original) (citation
and internal quotation marks omitted). We note that such
questioning would directly conflict with rule 412’s purposes of
“protecting victims of sexual assault from humiliation” and
“encouraging victims to report sexual crimes.” See Marks, 2011 UT
App 262, ¶ 48.

20121086-CA 11 2014 UT App 265
 State v. Thornton

Moreover, Thornton fails to explain how evidence of Child’s other
sexual activity would otherwise impeach the credibility of her
accusations against him.6 Cf. State v. Quinonez-Gaiton, 2002 UT App
273, ¶ 18, 54 P.3d 139 (“[R]evealing that A.A. engaged in a sexual
act with his stepbrother sheds little or no light, by itself, on why
A.A. would be motivated to accuse Defendant, of all the people in
the world, of sexually abusing him.”). We agree with the district
court that the sexual activity evidence was not necessary to
challenge Child’s credibility and that its admission would have
done “little more than damage her integrity among a jury, which
is the very problem Rule 412 seeks to address.” See id. ¶ 18 n.1
(“The avoidance of letting a jury know, more or less gratuitously,
that a victim of a sex offense is himself ‘no angel’ is the very reason
for rule 412.”).

¶30 Thornton also argues that the evidence should have been
allowed to explain Child’s ability to describe the physical
sensations she had experienced during sex. This argument
essentially reasserts Thornton’s argument about the sexual
innocence inference, recast to apply to Child’s knowledge of
physical sensations rather than her general sexual knowledge. We
also disagree with Thornton’s characterization of Child’s
descriptions as so vivid that they could have resulted only from her
personal experiences. While somewhat graphic, Child’s
descriptions ultimately reflect nothing more than a rudimentary
understanding that sex involves penetration and ejaculation. The
district court did not abuse its discretion in concluding that the jury
could have inferred that Child’s knowledge of such basic sexual
matters derived from her exposure to Mother’s prostitution.

6. Thornton advances a theory that Child falsely accused him of
having sex with her to conceal her other sexual activity from
Mother. But Child testified at the preliminary hearing that Mother
already knew that Child was sexually active. Although Child also
testified that Mother did not like that Child was having sex, there
is no evidence in the record that Mother had threatened any
particular consequences that Child might have potentially avoided
by fabricating her allegations against Thornton.

20121086-CA 12 2014 UT App 265
 State v. Thornton

¶31 Finally, Thornton argues that his constitutional right to
present the evidence is implicated because the State relied heavily
on the sexual innocence inference to obtain his convictions.
However, Thornton has failed to identify in the record any attempt
by the State to employ the sexual innocence inference to bolster
Child’s credibility below, much less the heavy reliance Thornton
asserts. Although the State frequently reminded the jury of Child’s
age, her youth was an element of each of the sex crime charges
against Thornton and a proper matter for the jury’s attention.

¶32 The closest the State came to implying sexual innocence
based on Child’s age was a comment in closing arguments that
“this little girl was 12 years old. She is not some sophisticated adult
that’s thinking about romance novels.” This comment was made to
rebut Thornton’s argument that Child wrote notes to Thornton
because she wanted a male figure or father figure in her life. The
State’s direct response to Thornton’s own closing argument does
not constitute abusing or taking advantage of the district court’s
rule 412 ruling to bolster Child’s credibility. Thornton has failed to
persuade us that the State relied on the sexual innocence inference
to such a degree as to require a new trial to vindicate his
constitutional rights.7

¶33 For all of these reasons, we conclude that Thornton has not
established that the evidence of Child’s other sexual activity was
admissible to show an alternate source of physical evidence or
because its exclusion would violate his constitutional rights.

7. This conclusion derives from our assessment that the State did
not actively exploit the district court’s rule 412 ruling. The
constitutional calculus would shift if the State had attempted to
take advantage of the limitation on Thornton’s ability to introduce
evidence of Child’s other sexual activity by encouraging the jury to
infer her sexual innocence or suggesting that Thornton was the
only possible source of her sexual knowledge. If Thornton faces
another trial and the district court rules on the 412 evidence in a
similar fashion, the court should remain vigilant to ensure that the
State does not take unfair advantage and should revisit its ruling
if the State were to do so.

20121086-CA 13 2014 UT App 265
 State v. Thornton

Accordingly, we affirm the district court’s exclusion of that
evidence under rule 412 of the Utah Rules of Evidence.

II. Evidence of Thornton’s Prior Acts

¶34 Thornton also challenges the district court’s decision to
allow the jury to hear evidence that he provided drugs to Mother
and encouraged her prostitution.8 Thornton argues that this
evidence should have been excluded under rule 404(b) of the Utah
Rules of Evidence because it was offered to demonstrate his bad
character and to suggest that he had acted in conformity with that
bad character by sexually abusing Child. See Utah R. Evid. 404(b)
(“Evidence of a crime, wrong, or other 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.”).
Thornton further argues that the district court failed to perform the
exacting review required before rule 404(b) evidence can be
admitted. See, e.g., State v. Verde, 2012 UT 60, ¶ 13, 296 P.3d 673 (“A
trial court’s admission of prior bad acts evidence is reviewed for
abuse of discretion, but the evidence must be scrupulously
examined by trial judges in the proper exercise of that discretion.”
(citation and internal quotation marks omitted)).

8. Contrary to Thornton’s consistent characterizations of this
evidence on appeal, neither the prosecutor nor any witness ever
expressly referred to Thornton at trial as a “pimp” or a “drug
dealer.” Child testified that, after Thornton moved in, Mother
“became really addicted to cocaine and other drugs” and Thornton
provided the drugs to Mother. Mother testified that she began to
prostitute herself “to pay for the crack cocaine” and that Thornton
had “basically told [her]” to engage in prostitution “to come up
with money to pay for the crack.” Mother testified that when she
received money from her prostitution, she “would give it to Robert
Thornton and he would provide me with crack cocaine.” While this
testimony described Thornton’s involvement in the sex and drug
trades, it did not use the charged language Thornton’s brief
employs.

20121086-CA 14 2014 UT App 265
 State v. Thornton

¶35 The parties do not dispute that the evidence the State
introduced constitutes “crime[s], wrong[s], or other act[s]”
governed by rule 404(b). To be admissible under rule 404(b),
“evidence of prior bad acts must be relevant and offered for a
genuine, noncharacter purpose; furthermore, the probative value
of the evidence must not be substantially outweighed by the
danger of unfair prejudice.” State v. Lucero, 2014 UT 15, ¶ 13, 328
P.3d 841; see also State v. Decorso, 1999 UT 57, ¶¶ 20–24, 993 P.2d 837
(reviewing the procedure for admission of prior bad acts evidence).
The district court exercises its discretion in admitting rule 404(b)
evidence. Lucero, 2014 UT 15, ¶ 11. However, the “proper exercise
of that discretion” requires that the district court “must
scrupulously examine the evidence before it is admitted.” Id.
(citation and internal quotation marks omitted).

¶36 The district court provided the following reasoning for
admitting the evidence:

I do find that it’s relevant while it is quite prejudicial.
I don’t know that it’s prejudicial to the effect of
overmastering hostility, if we keep ourselves from
name calling, like calling him a drug dealer or a
pimp.
The fact that he supplied drugs to this victim’s
mother and the fact that the victim’s mother—that he
had so much control in this household that he could
get the victim’s mother to prostitute herself, I
think—and the fact that all of this is going on
contemporaneous with the alleged sexual acts make
this evidence not only relevant but admissible.
I think the strength of the evidence you’ve got
two witnesses testifying, a witness’s testimony is
direct evidence. The amount of time that passed
between these acts is zero amount of time; they are
happening contemporaneously. They may not be
similar to being—you know, the prostitution and the
drug dealing is not similar to the sexual acts but,
again, I think it’s necessary because I think as in
[State v. Losee, 2012 UT App 213, 283 P.3d 1055,]

20121086-CA 15 2014 UT App 265
 State v. Thornton

they’re inextricably intertwined and it—they go to
explain the power the defendant had over the victim
and victim’s mother in this household that these
things were going on.

¶37 The district court revisited the rule 404(b) issue on the third
day of trial, after the Utah Supreme Court issued its opinion in
State v. Verde, 2012 UT 60, 296 P.3d 673. Verde identified and
explored a particular challenge posed by rule 404(b) evidence—that
“[e]vidence of prior misconduct often presents a jury with both a
proper and an improper inference, and it won’t always be easy for
the court to differentiate the two inferences or to limit the impact
of the evidence to the purpose permitted under the rule.” Id. ¶ 16.
Verde emphasized that when presented with rule 404(b) evidence,
“the court should carefully consider whether it is genuinely offered
for a proper, non-character purpose, or whether it might actually
be aimed at sustaining an improper inference of action in
conformity with a person’s bad character.” Id. ¶ 18; see also State v.
Ferguson, 2011 UT App 77, ¶¶ 12–14, 250 P.3d 89 (holding that trial
court’s examination of rule 404(b) evidence “must be undertaken
in a thoughtful and scrupulous fashion due to the important
competing interests involved when other bad acts evidence is
offered” and that “failure to do so constitutes an abuse of [the
court’s] discretion”).

¶38 The district court, after considering Verde, reiterated its
denial of Thornton’s motion to exclude the evidence, explaining
that the evidence

is useful for the purposes of understanding the
defendant’s position of power and trust in the
household, as well as the victim’s behavior, her not
telling right away when this happened and letting it
go on for a few months as well as her fear afterward.
For those purposes and those purposes alone, I am
going to allow that evidence even under the
heightened standard of evaluation that we see in the
Verde case.

20121086-CA 16 2014 UT App 265
 State v. Thornton

Thornton argues that this analysis failed to clear the analytical bar
Verde described. Without opining on the ultimate admissibility of
this evidence, we agree that the district court’s analysis did not rise
to the level of scrupulous examination required under these
circumstances.

¶39 In many respects, the district court’s rulings on the rule
404(b) evidence reflect the “care and precision” our case law
requires. See Lucero, 2014 UT 15, ¶ 36. “[T]he scrupulous
examination requirement is met when the trial court engages in [a]
three- or four-step analysis on the record.” Id. ¶ 37 (footnote
omitted). The required steps include “analysis under rules 404(b),
402, and 403” of the Utah Rules of Evidence and, if raised, any
“issue of conditional relevance under rule 104(b)” of the Utah Rules
of Evidence. Id. ¶ 37 & n.62. Further, “[t]he court need not identify
each of the Shickles factors in its analysis as long as we can discern
that it made a sufficient inquiry under rule 403.” Id. ¶ 37; see State
v. Shickles, 760 P.2d 291, 295–96 (Utah 1988) (enumerating factors
relevant to rule 403 analysis of bad acts evidence).9 Here, the
district court addressed the State’s purpose for offering the drug
and prostitution evidence under rule 404(b), determined relevance
under rule 402, and used many of the Shickles factors to balance
prejudice and probative value under rule 403.

¶40 Had the State sought to admit only one type of bad acts
evidence—i.e., either the drug evidence or the prostitution
evidence—the district court’s examination may well have been
sufficient. However, the district court took two separate categories
of bad acts—drug dealing and encouragement of prostitution—and

9. The factors specifically enumerated in State v. Shickles are
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.
760 P.2d 291, 295–96 (Utah 1988).

20121086-CA 17 2014 UT App 265
 State v. Thornton

analyzed them as a single unit. In other words, the district court
examined evidence of drug dealing and facilitating prostitution as
if they were the same bad act and as if the same considerations
applied to each equally. The problem with combining drug dealing
with prostitution for rule 404(b) analysis becomes clear when
viewed through the lens of the Shickles factors. See Shickles, 760 P.2d
at 295–96.

¶41 Among the Shickles factors is the degree to which the
evidence will rouse the jury to overmastering hostility. Id. at 296.
In the context of a trial for aggravated sexual abuse of a child, 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. Evidence that Thornton
introduced Mother to prostitution could also provide a jury with
a greater temptation to draw an improper inference about
Thornton’s propensity to commit the charged sex crimes than exists
with the evidence of him supplying Mother with drugs. Lumping
both types of bad acts into the same analytical bin prevented the
district court from accounting for these differences and “carefully
weigh[ing] the tendency toward proper and improper inferences
from the other acts evidence in the context of the particular case.”
State v. Labrum, 2014 UT App 5, ¶ 28, 318 P.3d 1151; see also State v.
Lucero, 2014 UT 15, ¶ 37, 328 P.3d 841 (“‘The sum of an evidentiary
presentation may well be greater than its constituent parts.’”
(quoting Huddleston v. United States, 485 U.S. 681, 691 (1988))).

¶42 Shickles also requires the district court to assess the “need for
the evidence” and the “efficacy of alternative proof.” See Labrum,
2014 UT App 5, ¶ 25 (citation and internal quotation marks
omitted). The State wanted the rule 404(b) evidence admitted to
explain why Thornton was “allowed to dominate the household,”
“why [Mother] continued to let [Thornton] live there despite his
poor treatment of her,” and why Child believed Mother “would
not protect her from [Thornton’s] abuse.” Had the district court
examined each set of bad acts separately, it might have determined
that the State’s purported need for the evidence would have been
satisfied by admission of the drug evidence alone. It may have
similarly reached the conclusion that admission of the drug

20121086-CA 18 2014 UT App 265
 State v. Thornton

evidence was an efficacious alternative to admission of the
evidence of Thornton’s role in Mother’s prostitution. Whatever the
ultimate outcome of the inquiry might have been, failure to analyze
each category of bad acts separately did not comport with the
district court’s obligation to scrupulously examine the rule 404(b)
evidence.

¶43 The district court also stated that the testimony regarding
drugs and prostitution was “inextricably intertwined” with the
charged crimes such that its exclusion would “leave holes in what
is going on.” Although the district court found the intertwining
constituted a justification for admission of the evidence under rule
404(b), the Utah Supreme Court has instructed that when the
charged crime and the prior act are “considered ‘part of a single
criminal episode,’” the evidence is inextricably intertwined and
rule 404(b) is not implicated. See Lucero, 2014 UT 15, ¶ 14 n.7. It
appears that the district court did not mean that Thornton’s prior
acts were actually part of the same criminal episode as the crimes
for which he was charged but rather that they provided necessary
context to understand how the crimes occurred and why Child did
not report the crimes earlier.10 This comports with the reasons the
State gave for seeking admission of the rule 404(b) evidence but
does not rise to the level of “inextricably intertwined” that would
put the evidence beyond rule 404(b)’s reach. See, e.g., United States
v. Daly, 974 F.2d 1215, 1216 (9th Cir. 1992) (finding, under Federal
Rule of Evidence 404, evidence regarding a shoot-out inextricably

10. At least one federal court of appeals has identified concerns
with using prior acts evidence to “complete a story” or “explain the
circumstances” of an alleged criminal act under the analogous
federal rule. See United States v. Bowie, 232 F.3d 923, 928 (D.C. Cir.
2000) (“The ‘complete the story’ definition of ‘inextricably
intertwined’ threatens to override Rule 404(b). A defendant’s bad
act may be only tangentially related to the charged crime, but it
nevertheless could ‘complete the story’ or ‘incidentally involve’ the
charged offense or ‘explain the circumstances.’ If the prosecution’s
evidence did not ‘explain’ or ‘incidentally involve’ the charged
crime, it is difficult to see how it could pass the minimal
requirement for admissibility that evidence be relevant.”).

20121086-CA 19 2014 UT App 265
 State v. Thornton

intertwined with charge of being a felon in possession of a firearm);
State v. Dion, 62 A.3d 792, 797 (N.H. 2013) (finding, under New
Hampshire’s version of the rule, phone records detailing a driver’s
phone conversations for thirty-seven minutes prior to fatal collision
inextricably intertwined with negligent homicide charge).

¶44 The State argues that even if the district court erred by
admitting the prior acts evidence, Thornton was not prejudiced by
its admission. We disagree. Reversal based upon an error at trial is
required “if a review of the record persuades the [appellate] court
that without the error there was a reasonable likelihood of a more
favorable result for the defendant.” State v. Tanner, 2011 UT App
39, ¶ 10, 248 P.3d 61 (alteration in original) (citation and internal
quotation marks omitted). “A reasonable likelihood of a more
favorable outcome exists when the appellate court’s confidence in
the verdict is undermined.” State v. Whittle, 1999 UT 96, ¶ 17, 989
P.2d 52. As articulated above, admission of evidence concerning
Thornton’s role in Mother’s prostitution created an opportunity for
the jury to use the evidence for the “obvious, illegitimate [purpose]
of suggesting action in conformity with bad character.” See State v.
Verde, 2012 UT 60, ¶ 31, 296 P.3d 673.

¶45 Our confidence in the verdict is further undermined by the
history of trials in this matter. At Thornton’s first trial, the State
stipulated to Thornton’s motion in limine to exclude evidence of
uncharged conduct. Nevertheless, Mother testified that she “was
not a prostitute until [Thornton] moved into my house . . . and told
me how to do it.” The district court declared a mistrial because it
was “very concerned” about the evidence in the “context [of] the
allegations in this case.”

¶46 Before the second trial, the State again agreed not to solicit
testimony concerning Thornton’s drug dealing or role in Mother’s
prostitution. That trial ended in a hung jury and mistrial. Before the
third trial, the State argued that it should be permitted to introduce
the rule 404(b) evidence because its absence in the second trial
created a “huge gap.” The State argued that “the jury needs to
know what was actually going on in that home” and why Mother
“did not kick him out” even though Thornton treated her

20121086-CA 20 2014 UT App 265
 State v. Thornton

“extremely poorly” and “was not romantically involved with
[Mother].” The State asserted that without an explanation the jury
would “speculate and fill in what was going on” and that such
speculation was “exactly what happened at the last trial and why
it was a hung jury.” Given the apparent importance of this
evidence to the outcome of the second trial in the State’s own view,
admission of the evidence in Thornton’s third trial can be
reasonably viewed as affecting its outcome.

CONCLUSION

¶47 The district court did not abuse its discretion in excluding
evidence of Child’s other sexual activity. We hold, however, that
the district court did not engage in the scrupulous examination
required by State v. Verde, 2012 UT 60, 296 P.3d 673, before
admitting evidence under rule 404(b) of the Utah Rules of
Evidence. We reverse Thornton’s convictions and remand for
further proceedings.

20121086-CA 21 2014 UT App 265