2015 UT App 180
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
JOHN MARCUS LOWTHER,
Defendant and Appellant.
Opinion
No. 20130697-CA
Filed July 30, 2015
Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 111900725
Edward J. Stone, Attorney for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee
JUDGE JAMES Z. DAVIS authored this Opinion, in which
JUDGE JOHN A. PEARCE concurred. JUDGE GREGORY K. ORME
dissented.
DAVIS, Judge:
¶1 John Marcus Lowther entered conditional no-contest
pleas to two counts of rape, reserving for appeal his challenge to
the trial court’s grant of the State’s motion to admit evidence
pursuant to rule 404(b) of the Utah Rules of Evidence. We
reverse and remand.
BACKGROUND
¶2 In support of its charge that Lowther raped K.S., the State
sought to admit testimony from three other women who allege
that Lowther had ‚raped them under similar circumstances: they
State v. Lowther
had attended a social gathering where they consumed alcohol;
they went to sleep either drunk or tipsy; and they awakened to
find *Lowther+ forcefully penetrating them.‛ The State
considered the evidence necessary to show Lowther’s ‚intent to
engage in sexual activity without the consent of the victims,‛ his
‚modus operandi . . . to initiate the offenses after the victims had
reached a state where they were incapable of protesting or
resisting,‛ and his ‚lack of accident or mistake‛ as to the
‚vulnerability of his victims at the time that he perpetrated
sexual offenses against them,‛ and to establish lack of consent.
The trial court held an evidentiary hearing during which K.S.
and the three proposed witnesses testified.
¶3 K.S. testified that she attended a movie premiere on
September 22, 2010, when she was twenty years old. She testified
that because she had been drinking at the event and later at a
hotel bar, she called a friend to drive her and another woman,
S.H., home from the premiere. The friend arrived in a car driven
by Lowther, whom K.S. had met a few times on previous
occasions. Lowther drove K.S. and S.H. to S.H.’s house. K.S.
testified that she probably had two drinks that night at the event.
She estimated that at the time she went to bed her level of
intoxication was a two on a ten-point scale on which zero was
completely sober and ten was having alcohol poisoning. K.S.
went straight to bed in S.H.’s room, removing her jeans herself,
and later woke up to find Lowther laying behind her, in a
spooning position, penetrating her vaginally. Her underwear
was pushed aside. He also had an arm draped over her torso
and was holding her wrist against her chest. K.S. rolled away.
Lowther either pulled her back to the bed or she fell back. K.S.
stood up again and left the room, ending the incident.
¶4 A.P. testified that she had met Lowther a few times
through a friend before seeing him at a house party in December
2009. A.P. testified that she drank vodka at the party, that she
had never been drunk before, and that she was seventeen at the
time. She testified that she became very sick from the alcohol
20130697-CA 2 2015 UT App 180
State v. Lowther
and that her then-boyfriend brought her to a quiet room in the
basement of the house where she could rest. She testified that
her intoxication was ‚a 7 or 8, possibly a 9‛ on a ten-point scale
with ‚10 being ending up in the hospital with alcohol
poisoning.‛ A.P.’s boyfriend and several other people continued
to periodically check on A.P. while she was in the basement
room. At some point, Lowther came into the room, purportedly
to check if A.P. was okay, at which time he began ‚rubbing‛ her
and ‚dry humping‛ her. She testified that Lowther had shut and
locked the door and that she could occasionally hear her
boyfriend and friends trying to get in to the room to check on
her but that she was too intoxicated to respond. She testified that
she told Lowther ‚no‛ at least twice while he was rubbing and
humping her but that she then ‚blacked out,‛ and when she
regained consciousness, ‚[Lowther] was on top of [her] . . . , his
penis was inside of *her+,‛ and he had pinned her hands
alongside her torso. She testified that Lowther had pulled her
pants down to her ankles but that she probably still had a shirt
on. She testified that she told Lowther ‚no‛ another two or three
times and repeated that she was sick, and she recalled ‚throwing
up continuously through this the whole time.‛ She testified that
she blacked out again and that when she ‚woke up*, Lowther+
was next to *her+.‛ That was when she got up and left.
¶5 C.H., who was eighteen at the time of her alleged rape,
testified that she had invited some friends to her apartment on
February 14, 2009, and that one of her guests brought Lowther to
the party. C.H. testified that she had never met Lowther before.
She testified that she consumed alcohol at the party, in
Lowther’s presence, and that she proceeded to get ‚very
intoxicated.‛ During the party, C.H. fought with her then-
boyfriend and kicked him out of the apartment. She testified that
she talked with Lowther and other partygoers about the fight.
Around 5:00 a.m., C.H. told Lowther and the other remaining
guests that she was going to bed. Approximately an hour and a
half after she fell asleep, C.H. woke up because Lowther was on
20130697-CA 3 2015 UT App 180
State v. Lowther
top of her, having sex with her. Her pants had been removed,
she presumed by Lowther. She testified, ‚I actually asked him
what was happening. I didn’t get it,‛ and when she realized
what was occurring, she ‚started pushing him from his
shoulders to get him off.‛ When that did not work after several
attempts, she ‚pushed him by his . . . pelvis area,‛ which
ultimately caused him to stop. She also testified that she did not
feel intoxicated at the time of the alleged sexual conduct.
¶6 Last, C.R. described herself as ‚pretty good friends‛ with
Lowther, whom she got to know through her then-boyfriend,
now husband. On July 20, 2010, when C.R. was twenty years old,
she and her boyfriend invited Lowther to their house for some
drinks. She and Lowther both drank that night. She testified that
she had three or four shots of vodka throughout the evening,
and she estimated her intoxication level as a four, five, or six out
of ten. C.R. went to bed and later woke up because she felt
‚fingers inside‛ of her and Lowther laying across her legs. Her
boyfriend was asleep in the bed next to her. She testified that she
‚sort of shifted a little bit, kicked *Lowther+ off,‛ and told him to
go home, at which point he left.
¶7 Following the evidentiary hearing, the trial court issued a
memorandum decision and order granting the State’s motion to
admit the rule 404(b) evidence. The court based its ruling on the
doctrine of chances and our supreme court’s decision in State v.
Verde, 2012 UT 60, 296 P.3d 673. Lowther appeals.
ISSUE AND STANDARD OF REVIEW
¶8 On appeal, Lowther argues that the trial court did not
‚engage in a scrupulous examination‛ of the prior bad acts
evidence because it failed to follow the requisite rule 404(b)
analysis and instead relied solely on the doctrine of chances.
Rule 404 of the Utah Rules of Evidence provides, ‚Evidence of a
crime, wrong, or other act is not admissible to prove a person’s
20130697-CA 4 2015 UT App 180
State v. Lowther
character in order to show that on a particular occasion the
person acted in conformity with the character.‛ Utah R. Evid.
404(b)(1). However, evidence of a prior bad act ‚may be
admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.‛ Id. R. 404(b)(2). ‚*W+e
review a trial court’s decision to admit evidence under rule
404(b) . . . under an abuse of discretion standard. We review the
record to determine whether the admission of other bad acts
evidence was ‘scrupulously examined’ by the trial judge ‘in the
proper exercise of that discretion.’‛ State v. Nelson-Waggoner,
2000 UT 59, ¶ 16, 6 P.3d 1120 (footnote omitted) (quoting State v.
Decorso, 1999 UT 57, ¶ 18, 993 P.2d 837). Thus, we accord some
deference to a trial court’s decision to admit evidence under rule
404(b), ‚*b+ut such a decision can withstand our review only if
the evidence falls within the bounds marked by the legal
standards set forth in the rules of evidence.‛ Verde, 2012 UT 60,
¶ 19.
ANALYSIS
¶9 In reviewing a motion to admit prior bad acts under rule
404(b), a trial court must make three inquiries. A ‚trial court
must first determine whether the bad acts evidence is being
offered for a proper, noncharacter purpose, such as one of those
specifically listed in rule 404(b).‛ Nelson-Waggoner, 2000 UT 59,
¶ 18. Next, ‚the court must determine whether the bad acts
evidence meets the requirements of rule 402 [of the Utah Rules
of Evidence], which permits admission of only relevant
evidence.‛ Id. ¶ 19. The doctrine of chances ‚is a theory of logical
relevance that rests on the objective improbability of the same
rare misfortune befalling one individual over and over,‛ Verde,
2012 UT 60, ¶ 47 (citation and internal quotation marks omitted),
and therefore, the doctrine may satisfy either or both of these
first two rule 404(b) inquiries. Last, in determining whether prior
bad acts evidence should be admitted, a ‚trial court must
20130697-CA 5 2015 UT App 180
State v. Lowther
determine whether the bad acts evidence meets the requirements
of rule 403 of the Utah Rules of Evidence,‛ which provides that
relevant evidence ‚‘may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.’‛
Nelson-Waggoner, 2000 UT 59, ¶ 20 (quoting Utah R. Evid. 403).
I. The Doctrine of Chances
¶10 Lowther first argues that in Verde, the Utah Supreme
Court specifically limited the application of the doctrine of
chances to cases in which the defendant challenges the
complaining witness’s testimony as fabricated. See Verde, 2012
UT 60, ¶¶ 44, 46. And because he never raised or indicated an
intent to raise a defense of fabrication, Lowther contends that the
doctrine of chances is inapplicable to his case and that the State’s
rule 404(b) evidence is not admissible under this theory.
¶11 ‚Fidelity to the integrity of [rule 404(b)] requires a careful
evaluation of the true—and predominant—purpose of any
evidence proffered under rule 404(b).‛ Id. ¶ 22. In Verde, the
court acknowledged that ‚*i+n some circumstances, evidence of
prior misconduct can be relevant under the so-called ‘doctrine of
chances.’‛ Id. ¶ 47. The court further acknowledged that the
doctrine of chances ‚defines circumstances where prior bad acts
can properly be used to rebut a charge of fabrication.‛ Id. The
court also explained the doctrine in terms of rebutting defenses
based on mistake, coincidence, or accident. See id. ¶¶ 48–50
(collecting cases). Because a charge of witness fabrication was at
issue in Verde, the Verde court necessarily addressed the doctrine
more specifically in regard to that noncharacter purpose. Id.
¶¶ 44, 46. This court’s subsequent applications of and citation to
Verde may have suggested different interpretations of the scope
of that case. See, e.g., State v. Clark, 2014 UT App 56, ¶ 23 n.4, 322
P.3d 761 (citing Verde and defining the doctrine of chances as a
means to rebut a fabrication defense); State v. Lomu, 2014 UT
App 41, ¶ 25, 321 P.3d 243 (citing Verde and affirming the use of
the doctrine of chances to admit prior bad acts evidence to rebut
20130697-CA 6 2015 UT App 180
State v. Lowther
the defendant’s claim that he did not know or intend that his
accomplice would use a gun during a convenience store
robbery). Nonetheless, the Verde court defined the doctrine of
chances as a theory of relevance under which rule 404(b)
‚evidence of prior similar tragedies or accusations‛ may be
admitted to support an ‚inference that the chance of multiple
similar occurrences arising by coincidence is improbable‛ as well
as ‚a conclusion that one or some of the occurrences were not
accidents or false accusations.‛ Verde, 2012 UT 60, ¶¶ 50–51; see
also State v. Labrum, 2014 UT App 5, ¶¶ 31–32, 318 P.3d 1151
(citing Verde and describing the doctrine of chances as a general
theory of relevance under which prior bad acts evidence may be
admitted). Thus, we are not convinced that Verde necessarily
limited the applicability of the doctrine of chances, as Lowther
argues, to ‚‘circumstances where prior bad acts can properly be
used to rebut a charge of fabrication.’‛ (Quoting Verde, 2012 UT
60, ¶ 47.)
¶12 Although the trial court in this case identified the
noncharacter purpose for which it admitted the rule 404(b)
evidence as, by itself, ‚the doctrine of chances,‛ the court also
recognized the rule 404(b) evidence as relevant to prove lack of
consent. Lowther states in his appellate brief ‚that the testimony
from the other women would have a tendency to make the
existence of K.S.’s consent [to sexual intercourse] more or less
probable than it would be without said testimony.‛ See generally
Utah Code Ann. § 76-5-402(1) (LexisNexis Supp. 2014) (‚A
person commits rape when the actor has sexual intercourse with
another person without the victim’s consent.‛). Likewise, when
the State addressed the doctrine of chances in support of its
motion to admit the rule 404(b) evidence, it suggested that the
bad acts evidence should be admitted under this framework to
rebut Lowther’s defense of consent. Although neither party
addresses whether the doctrine of chances provides a stand-
alone ground on which rule 404(b) evidence may be admitted,
we are satisfied that the trial court considered the evidence for
20130697-CA 7 2015 UT App 180
State v. Lowther
the separate noncharacter purpose of refuting Lowther’s defense
of consent.
II. Application of the Doctrine of Chances
¶13 Lowther next contends that the rule 404(b) evidence is not
sufficiently similar to K.S.’s account to be admissible. Rule 404(b)
evidence offered under the doctrine of chances ‚must not be
admitted absent satisfaction of four foundational requirements,
which should be considered within the context of a rule 403
balancing analysis.‛ State v. Verde, 2012 UT 60, ¶ 57, 296 P.3d 673
(footnote omitted); see also Edward J. Imwinkelried, The Use of
Evidence of an Accused’s Uncharged Misconduct to Prove Mens Rea:
The Doctrines Which Threaten to Engulf the Character Evidence
Prohibition, 51 Ohio St. L.J. 575, 589–601 (1990) (differentiating
slightly the admissibility requirements for evidence offered
under the doctrine of chances based on whether the evidence is
offered to prove an actus reus or a mens rea). Those four
requirements center on the materiality, similarity, independence,
and frequency of the charged and uncharged conduct. Verde,
2012 UT 60, ¶¶ 57–61.
¶14 Similarity is necessary ‚to dispel any realistic possibility
of independent invention‛ between the rule 404(b) witnesses
and is achieved by requiring, at the very least, that ‚*e+ach
uncharged incident . . . be roughly similar to the charged crime.‛
Id. ¶¶ 58–59 (emphasis, citations, and internal quotation marks
omitted). Furthermore, when comparing the similarities between
victims of uncharged incidents, generally ‚courts are less
tolerant of dissimilarities‛ because ‚*t+he accused’s intent may
vary with the victim’s identity.‛ Imwinkelried, 51 Ohio St. L.J. at
596–97; see also People v. Spoto, 795 P.2d 1314, 1320 (Colo. 1990)
(en banc) (‚*S+imilarity is crucial when the theory of logical
relevance is the doctrine of chances.‛); State v. Leistiko, 282 P.3d
857, 863–64 (Or. 2012) (en banc) (interpreting the doctrine of
chances as requiring a high degree of similarity and suggesting
that the doctrine is unavailable when the occurrence of the actus
20130697-CA 8 2015 UT App 180
State v. Lowther
reus is in dispute), modified on other grounds by 292 P.3d 522 (Or.
2012) (en banc). Accordingly, courts ‚should insist that the
victims be similar‛ because ‚the trier *of fact+ can infer wrongful
intent much more confidently if the accused has victimized the
same type of person on other occasions.‛ Imwinkelried, 51 Ohio
St. L.J. at 596–97.
¶15 In weighing the similarity factor, the trial court
concluded, ‚Like the charges involving K.S., the three other
alleged [incidents] were against young women with whom Mr.
Lowther had little or no acquaintance, who were intoxicated and
either asleep or passed out, and whom the defendant allegedly
raped in private . . . .‛ Lowther challenges this conclusion,
pointing out that ‚*t+here is no pattern among the women in the
amount of alcohol consumed, only that alcohol itself was
consumed, with varying effects‛; that the degree to which the
women had known Lowther before their alleged rapes varied;
that only C.H. and C.R. described house party ‚situations‛; that
none of the rule 404(b) witnesses had their underwear pushed
aside like K.S.; and that none of the rule 404(b) witnesses were
penetrated in the same position as K.S.1
1. Lowther does not specifically tie his similarity argument to
Verde; rather, he painstakingly differentiates his case from other
rape cases in which rule 404(b) evidence was admitted under
other theories, i.e., to show a pattern of behavior or modus
operandi. See, e.g., State v. Nelson-Waggoner, 2000 UT 59, ¶¶ 22–
25, 6 P.3d 1120; State v. Marchet, 2009 UT App 262, ¶¶ 31, 39, 219
P.3d 75; see also State v. Verde, 2012 UT 60, ¶ 53, 296 P.3d 673
(‚Probability reasoning is also the best understanding of our
analysis in State v. Nelson-Waggoner, 2000 UT 59, 6 P.3d 1120.‛).
In particular, he asks this court to identify ‚the minimum
number of similarities that are necessary to allow the
introduction of the other acts as probative of consent or another
404(b) purpose.‛ However, ‚*a+ny prescription of a threshold of
(continued<)
20130697-CA 9 2015 UT App 180
State v. Lowther
¶16 First, we recognize that both Lowther’s and the trial
court’s seemingly opposing characterizations of the women’s
familiarity with Lowther are supported by the record; K.S. and
A.P. specifically described themselves as acquaintances of
Lowther. C.R. described Lowther as a friend, and C.H. testified
that she had never met Lowther until that night. While certainly
C.R., as a friend of Lowther’s for several years, would have been
more familiar with Lowther than A.P. and K.S., who had met
him through mutual friends a few times in the past, we
nonetheless consider this factor to weigh in favor of similarity.
Like K.S., two of the rule 404(b) witnesses, C.R. and A.P., were in
some way acquainted with Lowther before the alleged incidents
occurred. Only C.H. was a stranger.
(