State v. McCullar

2014 UT App 215
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH ,
Plaintiff and Appellee,
v.
ROBERT L. MC CULLAR,
Defendant and Appellant.

Opinion
No. 20120648-CA
Filed September 11, 2014

Second District Court, Ogden Department
The Honorable W. Brent West
No. 101900238

Samuel P. Newton, Attorney for Appellant

Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN and SENIOR JUDGE PAMELA T.
GREENWOOD concurred.1

VOROS, Judge:

¶1 Robert L. McCullar was convicted of murdering Filiberto
Robles Bedolla. McCullar told his girlfriend (by then a police
informant) that he had slashed Bedolla’s throat with a piece of
broken glass. At trial, McCullar sought to raise a reasonable doubt
of his own guilt by pointing the finger at Dawna Finch, Bedolla’s
girlfriend and “main prostitute.” The jury convicted McCullar

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
 State v. McCullar

without having heard much of the evidence implicating Finch. On
appeal McCullar contends that he was unduly restricted in
attempting to present his defense to the jury. We agree. We
therefore reverse McCullar’s conviction and remand for further
proceedings.

BACKGROUND2

The Murder

¶2 Filiberto Robles Bedolla and his roommate shared a studio
apartment in Ogden. Bedolla’s roommate spent the morning of
December 22, 2009, looking for work. When he returned to the
apartment that afternoon to drop off groceries, he noticed Bedolla
still in bed, completely under a bedsheet. The roommate said, “Hey
buddy,” but Bedolla did not respond. As the roommate left the
apartment, he ran into Bedolla’s brother. The two returned to the
apartment to wake Bedolla. The roommate shook Bedolla’s foot but
Bedolla did not respond. Bedolla’s brother then pulled back the
bedsheet. Bedolla was dead, his bedding bloodstained, his neck
covered with stab wounds. The fly on his jeans was unbuttoned
and a pornographic movie was playing on a loop on the television
near the foot of his bed.

¶3 The crime scene revealed no obvious suspect. The first
officer to arrive saw no evidence of a struggle, and the door
showed no sign of forced entry. Bedolla’s wounds indicated that
the killer used a knife with a single-edged blade, but police found
no weapon at the scene. Investigators found blood prints on a
lightswitch, a doorknob, and a DVD case, all left by someone

2. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” State v. Brown,
948 P.2d 337, 339 (Utah 1997). “We present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346.

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 State v. McCullar

wearing knit gloves. They also found blood prints on an outturned
pocket of Bedolla’s jeans. Three thousand dollars in cash, with
which Bedolla had intended to purchase a car, was missing.

The Investigation

¶4 Police focused initially on two suspects: Bedolla’s roommate
and Dawna Finch, a woman investigators described as Bedolla’s
“main prostitute.” One detail in particular piqued police interest in
Finch. Bedolla reportedly kept a picture of Finch on his headboard.
The picture was gone when Bedolla’s body was found.

¶5 Other suspects soon emerged. An informant told police of
a woman seen sharpening a crack pipe, and police briefly
entertained a theory that Bedolla’s wounds could have been caused
by that type of weapon. Another informant told police that a local
man named Michael had bragged about committing the murder.

¶6 But the police investigation eventually narrowed to a single
suspect: Robert McCullar. Police first sought out McCullar because
they believed he might provide them with information about Finch.
Soon after their search began, McCullar approached two officers on
the street. He had heard police were investigating “a murder or
something” and were looking for him. McCullar seemed to be
unfamiliar with the details of the investigation. He believed the
murder had taken place the previous Friday, for example, when it
had actually taken place the previous Tuesday. He told police,
“This is bullshit. I didn’t do no murder. I don’t even know the
guy.” But McCullar then asked the police why they were
investigating him “if there was no forced entry” into Bedolla’s
apartment. That question struck the officers as suspicious—they
considered the lack of a forced entry to be a nonpublic detail of the
crime.

¶7 Several weeks later police received another tip. While in
custody after a drug arrest, a woman named Donna Major told
police that she had information about the Bedolla murder. She told

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police that she and McCullar were “close associates” and that
McCullar had “made some comments and statements that led her
to believe that he was the murderer.” Major first told police that
Finch was in Bedolla’s apartment when McCullar killed him. But
Major changed her story, telling police that she had been with
McCullar herself and had smoked a cigarette outside Bedolla’s
apartment as McCullar killed Bedolla. When McCullar emerged
from Bedolla’s apartment building, Major said, blood marked his
clothing.

McCullar’s Confessions and Trial

¶8 Major did, in fact, know McCullar well. They met in the
summer of 2009 and, for some time, had a romantic relationship.
Though that relationship ended before police began investigating
McCullar, during the investigation Major still told McCullar that
she loved and cared for him and that she wanted to leave Ogden
and run away with him to Dallas. Major testified that neither of
them ever “totally gave up” on the relationship and that she
thought McCullar “still had feelings” for her. Major also testified
that she believed she was able to “manipulate those feelings” to
“get [McCullar] to confess or incriminate himself” in Bedolla’s
murder.

¶9 In spite of their affection, Major was angry at McCullar for
his failure to bail her out of jail when she was held on drug charges.
In a conversation from jail, Major “vented” to McCullar about her
“so-called friends” who never “step up for you when you need
them.” Major told McCullar, “When I get out of here, . . . karma is
coming to town and that bitch is named Donna.”

¶10 Though they were skeptical of her initial story implicating
McCullar in Bedolla’s murder, police remained interested in
Major’s willingness to implicate McCullar. Major told police she
could “set up a meeting” and “get a confession” from McCullar.
Police told Major that if she did, they might be able to negotiate her
release from prison and drop the felony drug charge against her.

20120648-CA 4 2014 UT App 215
 State v. McCullar

¶11 Once Major agreed to cooperate with an investigation into
McCullar’s involvement in the murder, police “initiated the
discussion that led to her release.” They then outfitted a hotel room
with a modified clock radio capable of audio and video recording.
McCullar met Major at the hotel room, and police monitored and
recorded at least an hour and fifteen minutes of McCullar’s activity
in the hotel room. During his conversation with Major, McCullar
confessed to killing Bedolla. He told Major that after a “run in”
with Bedolla, he followed Bedolla home, scooped up a piece of
broken glass outside the apartment complex, barged through the
apartment door before Bedolla could close it, and cut Bedolla’s
throat. As McCullar described the killing to Major, he indicated the
length and location of the fatal wound by tracing a path with his
finger from “right under the right ear to about the center” of the
throat.

¶12 While in prison awaiting trial, McCullar met a pastor
serving five years to life for statutory rape. On one occasion,
McCullar asked the pastor, “Does God forgive murder?” On
another occasion, McCullar seemed to acknowledge killing Bedolla,
saying, “That paisa motherfucker, I had to handle my business, and
so I had to do what I had to do.”3 McCullar told the pastor he “left
the body” at the scene of the crime and that “he didn’t think it
would be found for anywhere from 12 to 24 hours.” McCullar also
suggested that he was not alone at the murder scene. As the pastor
related it, McCullar “was very frustrated” with a woman named

3. “Paisa” is short for “paisano,” Spanish for “countryman.” But the
slang term, widespread in U.S. prisons, carries another
connotation: a Mexican living in the United States who speaks
little English or who resists assimilation. See Gustavo Arellano,
How Insulting, Sacramento News & Review (May 13, 2010),
http://www.newsreview.com/sacramento/how-insulting/content
?oid=1423233; see also Paisa, Urban Dictionary, http://www.urban-
dictionary.com/define.php?term=paisa (last visited July 22, 2014);
Pisa, Urban Dictionary, http://www.urbandictionary.com/
define.php?term=pisa (last visited July 22, 2014).

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 State v. McCullar

“Dawanna,” because “if she hadn’t gone back inside to get
something else and . . . [left] a piece of evidence behind,” McCullar
believed he “would have got off.”

¶13 Those confessions anchored the State’s case against
McCullar. In fact, the prosecutor’s closing argument began, “I’m a
little surprised that [Bedolla’s roommate] is still being talked about
as a suspect, but when you have a client that confessed to
committing a murder and gave numerous specific details about
that murder, you throw everything against the wall and see what
sticks.” Several minutes later, the prosecutor closed, “Ladies and
gentlemen, we don’t know everything that happened. We don’t
know exactly how . . . . [But McCullar] knew way too many details
. . . . You don’t come up with those by guessing. . . . You come up
with those because you were there, and you did it, and that’s why
I’m asking you to find the defendant guilty.”

¶14 McCullar countered that his confessions did not square with
other evidence and that he had confessed to Major because he
believed that if he did, she would run away with him to Dallas.
McCullar denied confessing to the pastor and pointed out several
flaws in the pastor’s testimony. McCullar also sought to present an
alternative theory to the jury: the evidence at the scene and the
testimony of key witnesses strongly suggested that Dawna Finch
killed Bedolla. But several evidentiary rulings by the trial court
kept McCullar from fleshing out that theory.

McCullar’s Excluded Defense

¶15 At trial, McCullar drew the jury’s attention to evidence from
the crime scene that seemed inconsistent with the State’s account
of how Bedolla was killed. Bedolla was found on his bed, across the
room from the apartment door. His pants were undone, his jeans
pocket turned out, and three thousand dollars gone. A
pornographic movie played on a loop on the television at the foot
of his bed. Bedolla’s roommate spent the night in the apartment,

20120648-CA 6 2014 UT App 215
 State v. McCullar

got ready for work the next morning, and returned to drop off
groceries, all without noticing any sign of a struggle.

¶16 McCullar’s defense strategy was to draw these loose
evidentiary strands together to create a story undermining
McCullar’s confession. To do so, he depended on witness
testimony to answer the question central to his defense: If McCullar
didn’t kill Bedolla, who did?

¶17 The answer, McCullar intended to argue, was Dawna Finch.
In McCullar’s view, Bedolla’s murder matched Finch’s pattern of
violent behavior. Two of Bedolla’s friends told police that they had
witnessed a violent outburst by Dawna Finch six to eight months
before Bedolla was killed. In that attack, they reported, Finch
pinned a man to a bed and held a pair of scissors to his throat in a
dispute over drug money. McCullar also intended to argue that
Finch had threatened Bedolla just before he was killed. A
convenience-store clerk told police that several days before Bedolla
was killed, he came into the store and said that Finch had
demanded money and threatened to come to his apartment and
rob him if he didn’t pay. McCullar also believed he could provide
evidence that Bedolla took that threat seriously. Bedolla’s landlord
told police that Bedolla seemed out-of-sorts in the days before he
was killed and had shared his plan to move to California.
According to McCullar’s theory, Bedolla’s fear of Finch motivated
him to plan the move.

¶18 McCullar also planned to introduce expert testimony
supporting his theory that Bedolla was killed by someone he knew
well. McCullar’s expert planned to testify that bloody marks left on
the deadbolt switch indicated that the deadbolt had been thrown
when the murder took place. Finally, McCullar intended to present
evidence that the cash missing from Bedolla’s pocket ended up in
Finch’s hands. One of Finch’s acquaintances told police that the day
after Bedolla was killed, Finch came to her door and asked to use
her phone. Finch “had money” that day, the acquaintance reported,
and showed “a wad of it.”

20120648-CA 7 2014 UT App 215
 State v. McCullar

¶19 The trial court excluded the testimony of Bedolla’s friends,
his landlord, and the convenience-store clerk. The statements of all
four witnesses, the court concluded, were “inadmissible hearsay
and hence properly subject to the exclusionary rule.” The probative
value of the statements by Bedolla’s friends, the trial court added,
was “substantially outweighed by the danger of prejudice to the
State and to Ms. Finch, as well as the danger of confusing the jury,
because Ms. Finch is not being tried.” At the hearing on the State’s
motion in limine to exclude the testimony, the trial court
emphasized, “Ms. Finch is not on trial. She’s not. You want to point
the finger at her, and that’s where I make the distinction between
trying Ms. Finch as part of the defense or raising reasonable doubt
as to McCullar.” The trial court also excluded the expert testimony
analyzing the blood on the deadbolt switch. Given the trial court’s
resistance to testimony implicating Finch, McCullar did not attempt
to introduce at trial the testimony about Finch’s “wad of money.”

¶20 The jury found McCullar guilty of first-degree murder and
the trial court sentenced him to fifteen years to life. McCullar
submitted a motion for new trial, arguing in part that the trial court
erred by excluding testimony that implicated Finch. The trial court
denied the motion. McCullar appeals.

ISSUES AND STANDARDS OF REVIEW

¶21 McCullar first contends that the trial court improperly
excluded witness testimony that implicated Finch. The trial court
deemed the proposed testimony of several witnesses inadmissible
hearsay. “Our standard of review on the admissibility of hearsay
evidence is complex, since the determination of admissibility ‘often
contains a number of rulings, each of which may require a different
standard of review.’” State v. Workman, 2005 UT 66, ¶ 10, 122 P.3d
639 (quoting Norman H. Jackson, Utah Standards of Appellate
Review—Revised, Utah Bar J., Oct. 1999, at 8, 38 (1999)). We review
the legal determinations leading to an admissibility ruling for
correctness. Id. We review the factual findings for clear error. Id.

20120648-CA 8 2014 UT App 215
 State v. McCullar

And we review the admissibility ruling itself for abuse of
discretion. Id.

¶22 McCullar next contends that the trial court improperly
excluded evidence of Finch’s prior violent acts under rule 403 of
the Utah Rules of Evidence. We disturb a trial court’s decision to
exclude evidence only if we conclude the court abused its
discretion. Daines v. Vincent, 2008 UT 51, ¶ 21, 190 P.3d 1269.
“However, when the evidentiary ruling at issue” rests upon “an
independent legal issue and does not involve the balancing of
factors, we review the determination for correctness.” State v.
Whittle, 1999 UT 96, ¶ 20, 989 P.2d 52.

¶23 McCullar also contends that the trial court improperly
restricted the testimony of one of his expert witnesses, that the trial
court erred by admitting his confessions without determining their
trustworthiness, and that investigators’ warrantless surveillance of
a hotel room violated his rights under the Fourth Amendment and
article I, section 14 of the Utah Constitution. Because we reverse on
the basis of the exclusion of evidence relating to Dawna Finch, we
do not reach these issues.

ANALYSIS

¶24 Taken together, McCullar’s evidentiary arguments coalesce
into a constitutional claim: that the trial court’s evidentiary
decisions denied him a “meaningful opportunity to present a
complete defense.” See Crane v. Kentucky, 476 U.S. 683, 690 (1986)
(citation and internal quotation marks omitted). We first examine
the trial court’s exclusions individually then consider them
together to determine whether the evidentiary rules the court
applied infringe upon “a weighty interest of the accused” and
whether they “are arbitrary or disproportionate to the purposes
they are designed to serve.” Holmes v. South Carolina, 547 U.S. 319,
330 (2006) (citation and internal quotation marks omitted).

20120648-CA 9 2014 UT App 215
 State v. McCullar

A. Hearsay Exclusions

¶25 McCullar contends that the trial court improperly excluded
the testimony of two witnesses: a clerk at a convenience store near
Bedolla’s apartment and Bedolla’s landlord. McCullar first argues
that he did not seek to introduce the testimony “to prove the truth
of the matter asserted” and that the testimony was therefore
nonhearsay. But if the testimony was hearsay, McCullar argues, it
fell within the state-of-mind or prior-testimony exceptions to the
hearsay rule. Finally, McCullar argues, if the testimony fell outside
those two exceptions, the court should have admitted it under rule
807, which provides a “residual exception” to the hearsay rule.

¶26 Out-of-court statements offered to prove the truth of the
matter asserted are hearsay. Utah R. Evid. 801(c). Courts will not
admit a hearsay statement unless the statement falls within one of
the exceptions contained in rules 803, 804, and 807 of the Utah
Rules of Evidence. See id. R. 802.

¶27 Conversely, out-of-court statements not offered to prove the
truth of the matter asserted are by definition not hearsay.
Id. R. 801(c). In State v. Sibert, our supreme court explained that a
witness offering hearsay testimony is “not testifying from his own
knowledge or observation, but is acting as a conduit to relay that
of others.” 310 P.2d 388, 390 (Utah 1957). But in many cases a
witness who “relates what he heard someone else say” does not
“purport[] to represent that the statement he heard is true.” Id.
Rather, the witness offers the testimony “simply to prove that
someone else made a statement without regard to whether it be
true or false.” Id. In that case, the witness “assert[s] under oath a
fact that he personally knows, that is, that the statement was
made.” Id. at 391. The hearsay rule does not bar this type of
testimony. Id.4

4. Statements of this type may be “relevant because of [their]
impact on the hearer” and have “consistently been held to be
(continued...)

20120648-CA 10 2014 UT App 215
 State v. McCullar

¶28 Here, the clerk and the landlord both planned to testify
about statements Bedolla made before he was killed. Before we ask
whether this proposed testimony fit within a hearsay exception, we
must ask whether the proposed testimony amounted to hearsay.
Specifically, we ask whether McCullar offered the testimony of the
clerk and the landlord as evidence that Bedolla’s statements were
true, or simply to prove that Bedolla made them. We conclude that
McCullar offered the clerk’s and landlord’s testimony to prove that
Bedolla made the statements and that the declarants reported them
to police, and thus that police failed to adequately investigate the
person Bedolla’s statements implicated: Dawna Finch. They were,
consequently, nonhearsay.

¶29 Soon after Bedolla was killed, police interviewed a clerk at
a convenience store near Bedolla’s apartment who knew both
Bedolla and Finch. The clerk told police that one or two days before
he was killed, Bedolla stopped by the convenience store. Bedolla
told him “that he was having problems with his girlfriend Dawna.”
Bedolla also said that “Dawna had recently visited [him] and asked
for money” and that Bedolla “told Dawna that he had money but
that he wasn’t going to give it to her because of the way she had
been behaving.” Bedolla “explained that Dawna had been out in
the streets and using drugs.” He confided to the clerk that after he
refused to give her money, “Dawna became very angry and
threatened to return and rob [Bedolla] of all of his things.”

¶30 Around the same time, police interviewed Bedolla’s
landlord. The landlord reported that he had spoken to Bedolla
three days earlier. In the landlord’s account, Bedolla told him that

4. (...continued)
nonhearsay in a variety of contexts.” R. Collin Mangrum & Dee
Benson, Mangrum & Benson on Utah Evidence 724 (2014). In slip-and-
fall cases, for example, testimony of prior complaints about a slick
floor “may be admissible not to prove that the surface was slippery
on a particular occasion, but to prove that the defendant had notice
of the slippery condition.” Id.

20120648-CA 11 2014 UT App 215
 State v. McCullar

he planned to move out of the apartment by the end of the month
and relocate to California. The landlord stated that Bedolla “was
brief and straight to the point” and that his tone was “courteous
but disheveled.” The landlord added that he “knew [Bedolla] well”
and “felt something had changed in his world by the way he was
talking.” The landlord concluded, “I felt concerned for him [and]
I can’t explain why.”

¶31 The trial court concluded that Bedolla’s conversations with
the clerk and his landlord fell “directly within the definition” of
hearsay because they occurred outside “the confines of a court
proceeding” and McCullar offered the conversation “specifically to
show that Ms. Finch made threats against the victim.”

¶32 But the statements the trial court excluded were not
necessarily hearsay: they were offered at least in part to
demonstrate the inadequacy of the police investigation and, by
extension, to raise a reasonable doubt about McCullar’s guilt.

¶33 At a pretrial hearing, McCullar tied his evidence of third-
party guilt to a failure-to-investigate theory. Put simply, McCullar
argued that police had failed to fully investigate Dawna Finch as a
suspect. The trial court expressed concern that McCullar was trying
to prove Dawna Finch killed Bedolla with what it “consider[ed] to
be some difficult witnesses and some difficult hearsay [evidence].”
McCullar’s attorney responded, “[W]e’re not trying to prove that
Dawna did it. We’re only trying to raise doubt concerning Mr.
McCullar’s involvement in this.” McCullar’s attorney continued,
explaining how this overlooked evidence suggested that the police
were trying to make the evidence conform to their theory of the
case:

By pointing the finger at someone else, that is
certainly going to raise doubt . . . . This is not
hypothetical. I’m not pulling stuff out of thin air. I’m
pulling this from police reports, from the
investigation conducted . . . . I have the right to

20120648-CA 12 2014 UT App 215
 State v. McCullar

question the officers concerning . . . these statements.
What did they do as a result?
Did they go back and question Dawna Finch?
Did they grill her on the fact that these guys said she
was violent, these guys said that, you know, she
threatened him? This person said the few hours after
the killing she had a wad of cash in her hand?
I mean your Honor, I have—like I say, this is
just the tip of the iceberg of what we have on Dawna
Finch. If the State—if the officers do not follow up on
this and they’re trying to make the evidence conform
with their theory of the case, then I have a right to
bring that out.

¶34 Under McCullar’s failure-to-investigate theory, the fact that
the clerk and landlord reported their conversations with Bedolla to
police carried significance even if the content of the conversations
was not true, because those reports served as evidence that police
failed to fully investigate the murder. The clerk’s and landlord’s
statements were therefore offered not only for their truth, but also
for a separate, nonhearsay purpose: to show that police failed to
follow up on credible tips. Because McCullar sought to introduce
the clerk’s and landlord’s testimony for this purpose, the testimony
qualified as nonhearsay.

¶35 Even if third-party-guilt evidence escapes the reach of the
hearsay rule, it must of course be relevant to be admissible. In
United States v. Lecco, for example, the defendant argued that a
witness’s out-of-court statements to police demonstrated police
misconduct. 438 F. App’x 187, 190 (4th Cir. 2011). The trial court
excluded the statements as hearsay. Id. at 189. However, the Fourth
Circuit Court of Appeals agreed with the defendant “that the
proffered evidence was not hearsay, as it was not offered for the
truth of the matter asserted.” Id. at 190. But unlike McCullar, the
defendant in Lecco never argued police misconduct as a defense
before the trial court. The Lecco court therefore concluded that “it

20120648-CA 13 2014 UT App 215
 State v. McCullar

was within the district court’s discretion to exclude the evidence as
irrelevant.” Id. at 190–91.

¶36 We adopt the same approach here. The hearsay rule does
not bar evidence of third-party guilt introduced to demonstrate
shortcomings in a police investigation. But a trial court may
nevertheless exclude nonhearsay evidence of third-party guilt if the
evidence is irrelevant. Utah R. Evid. 401, 402. For example,
information implicating a third party would be relevant under a
failure-to-investigate theory “only if police learned of the
information during their investigation.” See Commonwealth v. Ridge,
916 N.E.2d 348, 358 (Mass. 2009).

¶37 Here, not only had police learned of the third-party guilt
evidence McCullar sought to introduce, the evidence was derived
from police reports. McCullar points to four separate police reports
that either named or described Finch as a potential suspect.
Tellingly, the State has never denied that Finch may have played
a part in the murder. For example, the prosecutor introduced
evidence of Finch’s involvement in the crime: McCullar’s
confession to the pastor, which included a reference to a woman
named “Dawanna” who left evidence at the scene. And on appeal,
the State argued that “evidence that [Dawna Finch] may have been
involved in the murder” does not “exculpate [McCullar].”5 We

5. The State argues that for evidence of third-party guilt to be
admissible, the evidence must “point directly to the third party’s
guilt” and be inconsistent with the defendant’s guilt. Such evidence
would undoubtedly be relevant and thus presumptively
admissible. But we see no need to adopt special corollaries to the
general rule of relevance for evidence of this type. Evidence of
third-party guilt may contribute to a jury’s reasonable doubt
despite not being strictly inconsistent with a defendant’s guilt. For
example, an eyewitness could identify a third party and the
defendant as co-perpetrators of a crime, but do so with varying
degrees of reliability. Or an eyewitness might testify that she saw
(continued...)

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 State v. McCullar

therefore conclude that the clerk’s and landlord’s testimony was
relevant nonhearsay. Accordingly, the trial court erred in excluding
it.

¶38 To support its exclusion of the clerk’s and landlord’s
testimony, the trial court relied upon State v. Wauneka. In Wauneka,
a husband called police to report that his wife “appeared to be
dead.” 560 P.2d 1377, 1378 (Utah 1977). The husband claimed his
wife’s death was accidental. But the medical examiner testified that
Wauneka’s wife had seventy-five bruises on her body and that her
death “was caused by a blow from a fist and then by a fall.” Id. The
prosecution argued that Wauneka had beaten his wife to death and
that the fatal attack was part of a pattern of abuse. An acquaintance
testified that less than a week before her death, the wife had
implored her, “You call the police for me—I can’t, if [my husband]
finds out I called the police, he’ll kill me.” Id. A social worker
testified that the day before her death, Wauneka’s wife told her that
“if she left her husband, he would kill her.” Id.

¶39 The Wauneka trial court admitted the hearsay testimony of
the acquaintance and the social worker “for the limited purpose of
showing [the wife’s] state of mind” at the time she made the
statements. Id. Wauneka was convicted of manslaughter. Id. Our
supreme court reversed Wauneka’s conviction, holding that the
trial court erred in admitting the hearsay statements. Id. at 1381.
Whether Wauneka’s wife “feared him or ignored him,” the court
declared, “throws no light on his guilt or innocence.” Id.

¶40 The State argues that the reasoning underlying Wauneka
applies here. In the State’s view, McCullar’s “claim that Finch was

5. (...continued)
half a dozen unknown perpetrators, undermining the prosecution’s
theory that the defendant acted alone. We therefore leave it to trial
courts to determine in the first instance whether evidence of third-
party guilt has any tendency, in the context of a given case, to make
a defendant’s guilt more or less probable. See Utah R. Evid. 401(a).

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 State v. McCullar

a ‘credible suspect’ depended entirely on the truth of the matters
asserted—that Finch threatened to take [Bedolla’s] money.” We
disagree. This would of course be true if McCullar’s object had
been to prove that Finch was the killer. But his object instead was
to raise an evidence-based doubt in the jurors’ minds that he was
the killer. One way he sought to do this was to plant doubt as to
the adequacy of the police investigation.

¶41 Accordingly, while the trial court correctly observed that
both Wauneka and the present case involve out-of-court statements
of threats against the declarant, the statements were offered for
quite different purposes. The statements excluded in Wauneka were
offered under the state-of-mind exception to the hearsay rule. But
the statements excluded here were relevant irrespective of their
truth, and thus were not excludable as hearsay.

¶42 Incidentally, Wauneka recognized that its rule would prove
a poor fit when a defendant offers evidence of third-party guilt. In
assessing the relevance of a murder victim’s statements, the
Wauneka court speculated, “Perhaps such statements would be
relevant where there is a question as to the identity of the one who
committed the homicide.” 560 P.2d at 1380.6 A decade later, in State

6. This passage from Wauneka appears to blend two distinct
inquiries: whether a statement is hearsay and whether a statement
is relevant. Wauneka drew heavily from United States v. Brown, a
D.C. Circuit case that expounds on the state-of-mind hearsay
exception and relevance requirements. See 490 F.2d 758 (D.C. Cir.
1973). Brown’s conclusion is straightforward, as is its application
here. “A statement which would be pure hearsay as to the truth of
the matters alleged” may nevertheless be admitted if the statement
is introduced for a nonhearsay purpose, such as to prove the
declarant’s state of mind. Id. at 763. But the hearsay exemptions
and exceptions still “must be applied with due deference to another
fundamental concept in the law of evidence—that of relevance.” Id.
Wauneka’s concern about the relevance of hearsay-exception
statements also reflects a previous version of the state-of-mind
(continued...)

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 State v. McCullar

v. Auble, our supreme court reiterated that hearsay statements
made by a murder victim may be admissible under the state-of-
mind exception “if the identity of the killer is at issue.” 754 P.2d 935
(Utah 1988). In short, both Wauneka and Auble took pains to exclude
from their holdings cases like this one, in which the identity of the
killer is at issue. Accordingly, Wauneka’s bar to the admissibility of
hearsay evidence of third-party guilt does not apply.

¶43 McCullar’s efforts to raise a reasonable doubt of his guilt
hinged on his failure-to-investigate theory. The trial court should
have admitted the clerk’s and landlord’s testimony for that
purpose. The trial court accordingly erred by excluding this
testimony entirely.7

B. Rule 403 Exclusions

¶44 McCullar next contends that the trial court improperly
excluded other evidence of Finch’s guilt under rule 403. Two of
Bedolla’s friends were prepared to testify that they had seen Finch
attack another friend with a pair of scissors and threaten to stab
him if he wouldn’t give her money. In McCullar’s view, “the fact
that Finch violently assaulted other men over their failure to
provide her with drug money helps establish her identity as the
killer in this case.” McCullar argues that because the friends’

6. (...continued)
hearsay exception. Utah rule of evidence 63(12), the predecessor of
our current rule 803, provided that “a statement of the
declarant’s . . . then existing state of mind” may be admissible
“when such a mental or physical condition is in issue or is relevant
to prove or explain acts or conduct of the declarant.” Utah R. Evid.
63(12) (1971). Our current state-of-mind exception does not refer to
relevance.

7. Because we conclude that the trial court should have admitted
the clerk’s testimony for a nonhearsay purpose, we do not reach
McCullar’s argument that the testimony falls under one of three
exceptions to the hearsay rule. See supra ¶ 25.

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 State v. McCullar

testimony pointed to the actual culprit, formed a necessary part of
his defense, and had no “unusual propensity” to inflame the jury,
it should have been admitted under rule 403.

¶45 A court may exclude evidence under rule 403 if its probative
value is substantially outweighed by a danger of unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence. Utah R.
Evid. 403. In short, the trial court considering the admissibility of
evidence under rule 403 seeks to balance two competing concerns,
“excluding the . . . evidence if its tendency to sustain a proper
inference is outweighed by its propensity for an improper inference
or for jury confusion about its real purpose.” State v. Verde, 2012 UT
60, ¶ 18, 296 P.3d 673.

¶46 Under rule 403, whether evidence is presumed admissible
or inadmissible depends on the nature of the evidence. If the
evidence has no “unusual propensity to unfairly prejudice, inflame,
or mislead the jury,” we will “indulge a presumption in favor of
admissibility.” State v. Dunn, 850 P.2d 1201, 1221–22 (Utah 1993).
But if the evidence does exhibit that type of “unusual propensity,”
the presumption shifts, and we require “the proponent to show
that the evidence has unusual probative value.” Id. at 1222. For
example, under rule 403, Utah courts have approved the exclusion
of gruesome crime-scene photos, rape victims’ sexual histories, and
pseudoscientific methodologies.8

8. For examples of each of these categories, see State v. Lafferty, 749
P.2d 1239, 1256–57 (Utah 1988) (“[T]here is no legitimate need for
the gruesome photographs of a homicide victim’s corpse . . . .”);
State v. Johns, 615 P.2d 1260, 1264 (Utah 1980) (“[A]bsent
circumstances which enhance its probative value, evidence of a
rape victim’s sexual promiscuity . . . is ordinarily insufficiently
probative to outweigh the highly prejudicial effect of its
introduction at trial.”), holding now embodied in Utah R. Evid. 412;
and State v. Rammel, 721 P.2d 498, 501 (Utah 1986) (“[Statistical
analysis is] particularly inappropriate when used to establish facts
(continued...)

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 State v. McCullar

¶47 The testimony McCullar sought to introduce here carries no
unusual propensity to unfairly prejudice, inflame, or mislead the
jury. Shortly after Bedolla’s murder, police interviewed two of his
friends, and the two men provided similar accounts of an incident
that occurred six months earlier. The police report summarizing the
story they related depicts an attack remarkably similar to the attack
on Bedolla:

[Bedolla’s two friends] and two other men . . . were
all at [one friend’s] apartment. Dawna [Finch]
knocked on the door and was let in. Dawna was on
a tangent and wanted money for drugs. The men told
Dawna that they didn’t have any money and she got
mad. Dawna tackled [one man] onto a bed and was
choking him with one hand. In the other hand
Dawna was holding a pair of scissors. Dawna
threatened to kill [the man] unless they gave her
money. [One friend] gave Dawna seven dollars and
then she left. Both of the men said that there were
other instances that Dawna has threatened them and
that she is very violent.

Because the testimony describing Finch’s earlier attack had no
“unusual propensity to unfairly prejudice, inflame, or mislead the
jury,” it enjoyed a presumption of admissibility. See Dunn, 850 P.2d
at 1221–22.

¶48 In addition, the testimony had little potential to create a
danger of unfair prejudice. “Evidence is not unfairly prejudicial
simply because it is detrimental to a party’s case.” United States v.
Magleby, 241 F.3d 1306, 1315 (10th Cir. 2001); see also State v.
Kooyman, 2005 UT App 222, ¶ 26, 112 P.3d 1252. Any evidence that
supports a defendant’s innocence prejudices the prosecution’s

8. (...continued)
not susceptible to quantitative analysis, such as whether a
particular individual is telling the truth at any given time.” (citation
and internal quotation marks omitted)).

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 State v. McCullar

case.9 Rule 403 does not guard against the danger of prejudice—it
guards against the danger of unfair prejudice.10

¶49 The trial court also expressed concern that the friends’
testimony would prejudice Dawna Finch. But concerns about
prejudice to third parties have no place in rule 403 analysis: our
unfair-prejudice rule asks only whether the evidence possesses “‘an
undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.’” State v.

9. The observation that all useful evidence is prejudicial is by now
commonplace. See, e.g., Parish v. City of Elkhart, 702 F.3d 997, 1001
(7th Cir. 2012) (“The most relevant evidence is, by its nature,
prejudicial, but it is only unfair prejudice that requires exclusion.”);
United States v. Jenkins, 126 F. App’x 187, 188 (5th Cir. 2005) (per
curiam) (“Relevant evidence is inherently prejudicial; but it is only
unfair prejudice, substantially outweighing probative value, that
permits exclusion under Rule 403.” (citation and internal quotation
marks omitted)); United States v. Rodriguez-Estrada, 877 F.2d 153,
156 (1st Cir. 1989) (“By design, all evidence is meant to be
prejudicial; it is only unfair prejudice which must be avoided.”).

10. Federal courts routinely emphasize this important distinction
between prejudice and unfair prejudice in the context of the federal
rule 403, which is identical to the Utah rule. See, e.g., United States
v. Morales–Aldahondo, 524 F.3d 115, 119 (1st Cir. 2008) (“In balancing
the scales of Rule 403, it is important to note that only ‘unfair’
prejudice is to be avoided . . . .”); Deters v. Equifax Credit Info. Servs.,
Inc., 202 F.3d 1262, 1274 (10th Cir. 2000) (“As has been stated many
times, Rule 403 does not protect a party from all prejudice, only
unfair prejudice.”); Veranda Beach Club Ltd. P’ship v. Western Sur.
Co., 936 F.2d 1364, 1372 (1st Cir. 1991) (“[T]rials were never meant
to be antiseptic affairs; it is only unfair prejudice, not prejudice per
se, against which Rule 403 guards.”); United States v. Williams, 816
F.2d 1527, 1532 (11th Cir. 1987) (“Only ‘unfair’ prejudice is
prohibited by Federal Rule of Evidence 403. This court has
invariably held that determining prejudice to outweigh
probativeness under rule 403 is an exceptional remedy.”).

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 State v. McCullar

Maurer, 770 P.2d 981, 984 (Utah 1989) (quoting Michael Graham,
Handbook of Federal Evidence § 403.1, at 178 (2d ed. 1986)); see also
United States v. Epperson, 528 F.2d 48, 50 (9th Cir. 1975) (“[I]t is an
axiom of the law of evidence that information will be excluded
when its probative effect is outweighed by its prejudice to the
opposing party.”); United States v. Patterson, 495 F.2d 107, 112 (D.C.
Cir. 1974) (same).11 A jury’s belief that police settled on the wrong
suspect is not an improper basis for a decision. In fact, given the
“measure of certainty the law demands before finding guilt,” a
jury’s belief that the defendant has been falsely accused must be a
permissible basis for a decision, lest we jeopardize our commitment
to “preventing the conviction and punishment of the innocent.” See
State v. Reyes, 2005 UT 33, ¶¶ 11–12, 116 P.3d 305.

¶50 For the same reason, the trial court’s concern that the
friends’ testimony may confuse the issues or mislead the jury is
misplaced. The primary issue facing the jury was whether
McCullar killed Bedolla. Evidence that someone else may have
killed Bedolla may have contributed to a reasonable doubt of
McCullar’s guilt. To the extent that Finch’s potential guilt does not
exculpate McCullar—because they both had a hand in Bedolla’s
murder, for example—we believe a jury is well equipped to weigh
the possibility that two people may have been involved in a
criminal act.

¶51 On the other hand, this testimony had significant probative
value. McCullar’s theory of the case cast Dawna Finch as Bedolla’s
killer. McCullar intended to offer the friends’ statements, recorded
in police reports, as evidence that police had improperly curtailed
their investigation of Finch. Given McCullar’s theory of the case,
evidence that Finch had been involved in a similar altercation only
months before Bedolla’s murder and that witnesses had reported

11. Examples of an improper basis for a decision include bias,
sympathy, hatred, contempt, retribution, and horror. State v.
Maurer, 770 P.2d 981, 984 (Utah 1989) (citing Michael Graham,
Handbook of Federal Evidence § 403.1, at 182–83 (2d ed. 1986)).

20120648-CA 21 2014 UT App 215
 State v. McCullar

the altercation to police investigating the murder carries significant
probative value. That probative value is enhanced by the paucity
of physical evidence linking McCullar to the crime scene and by the
crime-scene details suggesting that Bedolla had been killed by
someone he knew well. See supra ¶¶ 15–18.

¶52 In sum, the friends’ testimony carried significant probative
value and created little danger of unfair prejudice. Accordingly, the
trial court exceeded its discretion by failing to “indulge a
presumption in favor of admissibility” and by excluding their
testimony at trial. See State v. Dunn, 850 P.2d 1201, 1221–22 (Utah
1993).

C. McCullar’s Right to Present a Defense

¶53 The trial court erred by excluding the convenience-store
clerk’s and landlord’s testimony reporting the conversations they
had with Bedolla days before Bedolla died. The trial court also
erred by excluding Bedolla’s friends’ testimony about Finch’s prior
violent acts. But our analysis does not end there. An erroneous
decision to exclude evidence constitutes reversible error only if the
error is harmful. Cal Wadsworth Constr. v. City of St. George, 898 P.2d
1372, 1378 (Utah 1995). And “[a]n error is harmful if it is reasonably
likely that the error affected the outcome of the proceedings.” Id. at
1378–79. In short, we will reverse McCullar’s conviction only if we
are convinced that the trial court’s erroneous exclusions made “the
likelihood of a different outcome . . . sufficiently high to undermine
confidence in the verdict.” State v. Knight, 734 P.2d 913, 920 (Utah
1987).

¶54 McCullar argues that the trial court’s evidentiary exclusions
kept him from presenting his theory of the case: that the
crime-scene evidence and the testimony of those who knew Bedolla
pointed to Finch as the killer. McCullar made the same argument
before the trial court on his motion for new trial: “In this case, the
[trial] court did not allow [McCullar] to present witnesses and
defenses on his own behalf. . . . This issue rises above mere
evidentiary decisions and involves Mr. McCullar’s constitutional

20120648-CA 22 2014 UT App 215
 State v. McCullar

right to present relevant evidence directly bearing upon his theory
of the defense.”

¶55 A series of United States Supreme Court cases emphasizes
a defendant’s constitutional right to present a complete defense.
The rule first appeared in Washington v. Texas:

The [Sixth Amendment] right to offer the testimony
of witnesses, and to compel their attendance, if
necessary, is in plain terms the right to present the
defense, the right to present the defendant’s version
of the facts as well as the prosecution’s to the jury so
it may decide where the truth lies.

388 U.S. 14, 19 (1967). The Court reasoned that a trial court better
protects a defendant’s constitutional rights by allowing the jury to
determine the usefulness of testimony rather than by wielding the
rules of evidence to keep out testimony of questionable use:

“[It is] the conviction of our time that the truth is
more likely to be arrived at by hearing the testimony
of all persons of competent understanding who may
seem to have knowledge of the facts involved in a
case, leaving the credit and weight of such testimony
to be determined by the jury or by the court.”

Id. at 22 (quoting Rosen v. United States, 245 U.S. 467, 471 (1918)).
The Court expressed a similar sentiment several years later in
Chambers v. Mississippi, in which it reversed a defendant’s
conviction after a trial court applied the state’s voucher and
hearsay rules to exclude exculpatory testimony: “The right of an
accused in a criminal trial to due process is, in essence, the right to
a fair opportunity to defend against the State’s accusations.” 410
U.S. 284, 303 (1973). Thus, “the Constitution guarantees criminal
defendants a meaningful opportunity to present a complete
defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citation and
internal quotation marks omitted). And that right is abridged by
evidentiary rulings that infringe upon “a weighty interest of the

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 State v. McCullar

accused and are arbitrary or disproportionate to the purposes they
are designed to serve.” Holmes v. South Carolina, 547 U.S. 319,
319–20 (2006) (citation and internal quotation marks omitted).

¶56 Here, the trial court’s erroneous evidentiary exclusions
deprived McCullar of a meaningful opportunity to present a
complete defense. Both Chambers and Holmes involve the dispute at
issue here: the exclusion of evidence of third-party guilt. When a
defendant theorizes that a third party committed the charged
offense, and when admissible evidence supports that theory, the
defendant’s constitutional right to present a defense is implicated.
“In these circumstances, where constitutional rights directly
affecting the ascertainment of guilt are implicated, the hearsay rule
may not be applied mechanistically to defeat the ends of justice.”
Chambers, 410 U.S. at 303; see also Holmes, 547 U.S. at 331
(concluding that a South Carolina rule excluding evidence of third-
party guilt when the prosecution has presented strong evidence of
a defendant’s guilt “violates a criminal defendant’s right to have a
meaningful opportunity to present a complete defense” (citation
and internal quotation marks omitted)). Excluding evidence on the
theory that the third party is not on trial may—and did
here—unduly limit the defendant’s ability to present his own
theory of the case. As the Supreme Court explained in Holmes, “Just
because the prosecution’s evidence, if credited, would provide
strong support for a guilty verdict, it does not follow that evidence
of third-party guilt has only a weak logical connection to the
central issues in the case.” 547 U.S. at 330.

¶57 One group studying juror decision-making sought to
“clarify precisely what the right to present a defense actually
means.” John H. Blume et al., Every Juror Wants a Story: Narrative
Relevance, Third Party Guilt and the Right to Present a Defense, 44 Am.
Crim. L. Rev. 1069, 1099 (2007). They reasoned that “the right to
present a complete defense includes the right to tell a plausible
story if the defendant has one.” Id. The group also noted that “[t]he
Supreme Court has already recognized the basic principles of
narrative relevance in its decision in Old Chief v. United States.” Id.

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 State v. McCullar

at 1100. In Old Chief, the Court stated, “Evidence . . . has force
beyond any linear scheme of reasoning, and as its pieces come
together a narrative gains momentum, with power not only to
support conclusions but to sustain the willingness of jurors to draw
the inferences, whatever they may be, necessary to reach an honest
verdict.” 519 U.S. 172, 187 (1997).

¶58 Here, the exclusion of evidence that Finch threatened
Bedolla days before his death and that she had attacked other men
in past drug-money thefts prejudiced McCullar by leaving factual
gaps in his defense theory. In closing argument, vague references
to a third party’s possible guilt or an incomplete police
investigation cannot compensate for the absence of specific
evidence implicating a particular person and suggesting the police
failed to fully investigate that suspect. As Justice Souter
emphasized in Old Chief, a jury’s willingness to acquit a defendant
depends largely on the cohesiveness of a defendant’s story:

A syllogism is not a story, and a naked proposition in
a courtroom may be no match for the robust
evidence that would be used to prove it. People who
hear a story interrupted by gaps of abstraction may
be puzzled at the missing chapters, and jurors asked
to rest a momentous decision on the story’s truth can
feel put upon at being asked to take responsibility
knowing that more could be said than they have
heard.

Id. at 189.

¶59 In sum, the erroneous evidentiary exclusions deprived
McCullar of a “meaningful opportunity to present a complete
defense.” See Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citation
and internal quotation marks omitted). They thus made “the
likelihood of a different outcome . . . sufficiently high to undermine
[our] confidence in the verdict.” See State v. Knight, 734 P.2d 913,

20120648-CA 25 2014 UT App 215
 State v. McCullar

920 (Utah 1987). We reverse McCullar’s conviction on this
ground.12

¶60 Because we reverse McCullar’s conviction based on the
erroneous evidentiary exclusions, we do not address McCullar’s
claims based on the exclusion of expert-witness testimony, the
trustworthiness of his confession, and the admissibility of evidence
gathered using warrantless hotel-room surveillance.

CONCLUSION

¶61 The trial court erred by excluding the testimony of the
convenience-store clerk, the testimony of Bedolla’s landlord, and
the testimony of Bedolla’s two friends. That error prejudiced
McCullar. We therefore reverse McCullar’s conviction and remand
for further proceedings consistent with this opinion.

12. Our holding does not bar a retrial. “The principle that [the
Double Jeopardy Clause] does not preclude the Government’s
retrying a defendant whose conviction is set aside because of an
error in the proceedings leading to the conviction is a well-
established part of our constitutional jurisprudence.” United States
v. Tateo, 377 U.S. 463, 465 (1964); see also State v. Lamorie, 610 P.2d
342, 347 (Utah 1980) (“Reversal and remand for a new trial does not
place the accused in double jeopardy where the error giving rise to
the reversal is merely trial error, as distinguished from
insufficiency of the evidence.”).

20120648-CA 26 2014 UT App 215