State v. Ashby

2015 UT App 169
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
CAROLINE ASHBY,
Defendant and Appellant.

Opinion
No. 20121070-CA
Filed July 9, 2015

Fourth District Court, Provo Department
The Honorable Claudia Laycock
No. 101403829

Aaron P. Dodd, Attorney for Appellant

Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
STEPHEN L. ROTH and JOHN A. PEARCE concurred.

TOOMEY, Judge:

¶1 Caroline Ashby appeals from convictions on two counts
of aggravated sexual abuse of a child, a first degree felony.
Ashby argues the trial court erred in excluding evidence that the
victim (Child) engaged in certain sexual behavior and by
permitting the jury to take Child’s video-recorded interview
with them into the jury room for deliberations. 1 We affirm.

1. This court ordered that all briefs in this matter be classified as
private. See Utah R. Evid. 412(c)(3). The State also moved to seal
the transcripts and pleadings related to the rule 412 evidence. Id.
(continued...)
 State v. Ashby

BACKGROUND

¶2 Child was born in 2002. 2 Between 2009 and 2010, Ashby
cared for Child and sometimes watched him overnight. During
this time, Child told his father (Father) that when Ashby cared
for him, she took baths with him. Concerned that the seven-year-
old boy was too old to be bathing with an adult woman, Father
told Ashby it was inappropriate for her to bathe with Child.
During this period, Child also began seeing a clinical
psychologist (First Therapist) for therapy and counseling.

¶3 Around May 2010, Father learned that Ashby and her
boyfriend (Boyfriend) “picked at” Child’s scrotum in an attempt
to remove stitches from a surgical procedure that Child
underwent four years earlier. This information prompted Father
to consult a surgeon, who told Father the stitches would have
dissolved within weeks after surgery. When Father informed
Ashby there could not be any stitches in Child’s scrotum, Ashby
claimed she did nothing inappropriate and was simply caring
for Child after he complained of pain and asked her to look at
his scrotum and legs.

¶4 In November 2010, when Child was eight years old, his
stepmother (Stepmother) called Wasatch Mental Health for a

(…continued)
(“Unless the court orders otherwise, the motion, related
materials, and the record of the hearing must be and remain
sealed.”). We hereby grant the State’s motion to seal the
transcripts and pleadings related to the rule 412 evidence.
Accordingly, although Ashby’s challenges detail the sealed facts
and circumstances, we recite them generally in this opinion.

2. “[W]e recite the facts in a light most favorable to the jury’s
verdict, but present conflicting evidence to the extent necessary
to clarify the issues raised on appeal.” State v. Vigil, 922 P.2d 15,
18 (Utah Ct. App. 1996) (citation and internal quotation marks
omitted).

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 State v. Ashby

referral to a new therapist (Second Therapist) to address Child’s
“behavioral issues.” During her call, Stepmother relayed some of
her concerns regarding Ashby’s interactions with Child, which
led to an investigation.

¶5 Shortly thereafter, a forensic interviewer questioned Child
at the Children’s Justice Center (the CJC interview). The CJC
interview was recorded onto a DVD (the DVD) and later
transcribed. During the interview, Child said Ashby taught him
about private parts when he was six or eight years old. When
asked specifically what Ashby taught him, Child said he
“[didn’t] really want to tell” because “[i]t feels really
embarrassing.” Child confirmed that Ashby touched his scrotum
to look for stitches and took naked baths with him. He also
indicated that during these baths Ashby put soap on her hand
and used it to “scrub” and “sweep” his private parts. Child
explained that “[e]very single time,” Ashby told him to “wash
[her] everywhere” and “wash a little inside” her. Child said he
used his hands to wash inside Ashby’s vagina and “[i]nside her
bum.” He also washed her breasts.

¶6 In December 2010, Ashby was charged with two counts of
aggravated sexual abuse of a child. Before trial, she filed a
motion pursuant to rule 412 of the Utah Rules of Evidence,
seeking to admit evidence that Child engaged in sexual behavior
with other children. In the motion, Ashby asserted the evidence
was admissible to impeach Child’s credibility and to rebut the
“sexual innocence inference.” The State opposed the motion.
After taking evidence and hearing arguments, the court made
several findings of fact.

¶7 The court found that before the allegations came forth in
this matter, Child was involved in six incidents of sexual
behavior with other children (the rule 412 evidence). Five of the
six involved other boys; in the sixth, Child asked a girl to touch
his genitals.

¶8 The trial court further found that during the period the
alleged abuse was taking place, First Therapist was treating

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Child for “‘some behavioral acting out and some lying.’”
Although Child disclosed to First Therapist that he was
uncomfortable with Ashby bathing with him and checking his
scrotum for stitches, Child never disclosed that she abused him.
Nonetheless, he disclosed to Second Therapist that he had been
abused by Ashby “over 100 times.” He also denied his sexual
behavior with other children. Second Therapist indicated Child
was “in denial about his behavior with other children during
one therapy session.” Moreover, the trial court found that
during the CJC interview, Child failed to disclose sexual
behavior with other children and instead disclosed only
sexual behavior with Ashby.

¶9 The trial court ultimately denied Ashby’s rule 412 motion
and prohibited her from offering evidence of Child’s sexual
behaviors, except those involving Child and Ashby. In so ruling,
the court considered the relevance of the evidence to Ashby’s
theories for admission and the extent to which its exclusion
furthered the purposes of rule 412. The trial court determined
that even if an exception to rule 412 allowed admission of the
evidence, the court would nevertheless exclude it based on rule
403 of the Utah Rules of Evidence. Taken together, the rule 412
evidence “[did] not explain [Child’s] ability to describe the
breast stimulation or digital vaginal and anal penetration alleged
in this matter.” Furthermore, the court reasoned that Ashby
would have many opportunities to impeach Child’s testimony
without referencing his other sexual behaviors. Accordingly, the
trial court excluded the rule 412 evidence under both rules 412
and 403.

¶10 A jury trial was held in October 2012. Before the jurors
heard the evidence, the trial court informed them that they “will
have everything that’s been admitted with [them] in the jury
room” and that “[g]enerally, what’s played in front of [the
jurors] or read to [the jurors] comes into evidence and [they will]
have an opportunity to see it later.” The trial court also told the
jurors that when it gives them “the go-ahead at the end of
everything to talk about the case, you’ll have the exhibits, you’ll
be able to share them, look at them, comment on them to each

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 State v. Ashby

other, those—anything that’s been admitted into evidence will
go into the room with you.” The court further stated, “Anything
that’s not admitted, if, for instance, there was some video or
audio recording that was played but not admitted into evidence,
then you’d just have to rely on your memory or whatever notes
you take for your personal use.”

¶11 At trial, Child testified via a live video feed playing on a
closed-circuit television. In his testimony, Child restated that he
had repeatedly taken naked baths with Ashby and they washed
each other’s private parts. He was also able to describe in detail
what breasts and a vagina look like. Unlike the CJC interview,
however, Child stated at trial that he did not remember washing
the inside of Ashby’s vagina and anus, but he indicated that he
“probably did.”

¶12 Ashby testified and denied the allegations of abuse.
Although Ashby admitted she and Boyfriend looked at Child’s
scrotum for stitches and she bathed nude with Child when he
was younger, she testified she stopped bathing naked with him
when he “started to identify body parts.” According to Ashby,
she bathed with Child while they were wearing bathing suits
one time between January 2009 and December 2010. She testified
that because Child was “old enough . . . to wash himself,” she
did not wash him during this period. Ashby denied she had
Child wash her body.

¶13 In connection with the forensic interviewer’s testimony,
the State sought to show the jury the DVD recording of the CJC
interview pursuant to rule 15.5 of the Utah Rules of Criminal
Procedure and rule 801 of the Utah Rules of Evidence. 3 Defense
counsel objected, arguing the State failed to show good cause to

3. Rule 15.5 allows a court to admit an alleged child victim’s oral
statement regarding a sexual-offense charge under certain
conditions. Utah R. Crim. P. 15.5. Rule 801 provides that a prior
inconsistent statement is not hearsay if the declarant testifies and
is subject to cross-examination. Utah R. Evid. 801(d)(1)(A).

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 State v. Ashby

play the DVD. After hearing argument and viewing the DVD in
camera, the trial court ruled that the requirements of rule 15.5
and rule 801 were met. As a result, it allowed the DVD of the
CJC interview to be played in open court. Before showing the
DVD, the State offered it as an exhibit and the court received it.

¶14 At the beginning of the last day of trial, the court
discussed with counsel whether to allow the jury to watch the
DVD of the CJC interview while deliberating. The State argued
that under rule 17(l) of the Utah Rules of Criminal Procedure, the
jury was allowed to take with it into deliberations anything
received into evidence, including the DVD. Defense counsel
objected, arguing that this would invite the jury to give greater
weight to the CJC interview over Child’s in-court testimony. The
trial court judge agreed with the prosecutor, stating, “I don’t see
any reason it wouldn’t go back with them, which means we
aren’t—usually what I do, I don’t automatically send a TV back
with them to play it. We wait until they ask for it and . . . then
we send in a TV with them.”

¶15 At the close of evidence, the trial court told the jury that
“[t]he evidence will go back with you and . . . we’ll go through
and make sure exactly what’s been admitted, what hasn’t been
admitted so that only the received evidence goes back with you
and you don’t inadvertently get something you shouldn’t have
had.” The DVD of the CJC interview was allowed into the jury
room. Although the record suggests that four CDs containing
recordings of phone calls between Ashby and Child went into
the jury room along with a portable CD player, there is no
evidence a DVD player was sent in to the jury room during the
jury’s deliberations.

¶16 The jury convicted Ashby on both counts, and the trial
court sentenced her to concurrent prison terms of ten years to
life on each. Ashby appeals.

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 State v. Ashby

ISSUES AND STANDARDS OF REVIEW

¶17 Ashby first argues the trial court abused its discretion and
denied her constitutional rights to confrontation and a fair trial
when it excluded impeachment evidence of Child’s sexual
conduct with others pursuant to rule 412 of the Utah Rules of
Evidence. See Utah R. Evid. 412. “When reviewing a trial court’s
decision to limit cross-examination, we review the legal rule
applied for correctness and the application of the rule to the facts
of the case for an abuse of discretion.” State v. Marks, 2011 UT
App 262, ¶ 11, 262 P.3d 13 (citation and internal quotation marks
omitted).

¶18 Second, Ashby argues the trial court erred by allowing the
jury to take the DVD of the CJC interview into its deliberations.
The court’s decision to send in the DVD was based on its
interpretation and application of rule 17(l) of the Utah Rules of
Criminal Procedure, which addresses the kinds of exhibits a jury
may take into deliberations. See Utah R. Crim. P. 17(l). Generally,
we review a trial court’s interpretation and application of a rule
of procedure for correctness. Ross v. Epic Eng’g, PC, 2013 UT App
136, ¶ 12, 307 P.3d 576. But, “[i]n order to justify reversal[,] the
appellant must show error that was substantial and prejudicial
in the sense there is at least a reasonable likelihood that in the
absence of the error the result would have been different.” Id.
(alterations in original) (citation and internal quotation marks
omitted).

ANALYSIS

I. Rule 412 Evidence

¶19 Ashby challenges the trial court’s decision to exclude
evidence of Child’s sexual behaviors involving other children.
The court excluded the evidence based on rules 412 and 403 of
the Utah Rules of Evidence. We examine the trial court’s
application of both rules to the challenged evidence.

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 State v. Ashby

A. Rule 412

¶20 “[I]n a criminal proceeding involving alleged sexual
misconduct,” “evidence offered to prove that a victim engaged
in other sexual behavior” is subject to rule 412. Utah R. Evid.
412(a)(1). The parties do not dispute that the evidence of Child’s
prior sexual behavior falls under rule 412’s scope. See id.

¶21 Although rule 412 generally prohibits the admission of
evidence of a victim’s other sexual conduct, Ashby asserts the
evidence of Child’s sexual behavior should have been admitted
under an exception that allows the court to admit it when its
“exclusion would violate [her] constitutional rights.” See id. R.
412(b)(3). Ashby argues her constitutional right to confrontation
and to present a complete defense required admission of this
evidence for three critical purposes: (i) to rebut the jury’s likely
assumption that Child was too young to fabricate the allegations
against her; (ii) to impeach Child’s testimony and challenge his
credibility; and (iii) to show that he had earlier opportunities to
disclose abuse but did not do so.

¶22 In reviewing the court’s decision to exclude the evidence
under rule 412, we assess (1) the relevance of the challenged
evidence to an issue critical to the defense and (2) the extent to
which its exclusion furthers the purposes of rule 412. See State v.
Marks, 2011 UT App 262, ¶ 23, 262 P.3d 13.

1. Relevance

¶23 With one exception, the court found that each proposed
piece of evidence bore “only marginal relevance” to Ashby’s
theory for admission. Ashby challenges this conclusion.

¶24 Evidence is relevant if it has any tendency to make a fact
of consequence “more or less probable than it would be without
the evidence.” Utah R. Evid. 401. “Relevant evidence is
presumptively admissible; irrelevant evidence is not.” State v.
Richardson, 2013 UT 50, ¶ 24, 308 P.3d 526. In other words,
relevance is defined in binary terms: “Either evidence is relevant

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because it makes a fact of consequence more or less probable, or
it is not because it does not.” Id. ¶ 27. Our rules of evidence
“establish a ‘very low’ bar that deems ‘even evidence with the
slightest probative value’ relevant and presumptively
admissible.” Id. ¶ 24 (quoting State v. Martin, 2002 UT 34, ¶ 34, 44
P.3d 805). 4

¶25 Considering that the threshold for determining whether
evidence is relevant is “very low,” we agree with Ashby that
because the evidence of Child’s other sexual behaviors had at
least some probative value to all three of Ashby’s purposes, it
was relevant. It was slightly probative of Child’s ability to
fabricate a description of the abuse and therefore relevant
to rebut the potential for the jury to assume that he could not
have described the abuse as he did unless Ashby actually abused
him. Likewise, Child’s failure to disclose his sexual behavior
with other children during the CJC interview and his lack of
candor with Second Therapist about these incidents were
probative of his honesty, and therefore relevant to impeach his
testimony. Finally, Child’s disclosure to First Therapist of some
of his other sexual behaviors was at least slightly probative of his
capacity and opportunity to disclose that Ashby had abused
him, and therefore relevant to her defense that if she had in fact
abused him, Child would have disclosed it earlier.

2. Purposes of Rule 412

¶26 The trial court determined that rule 412’s purposes were
furthered by excluding evidence concerning Child’s sexual

4. Because State v. Richardson, 2013 UT 50, 308 P.3d 526, was
decided after the trial in this case, the trial court did not have the
benefit of its analysis, and instead relied on State v. Marks, 2011
UT App 262, 262 P.3d 13, in which this court employed terms
suggesting that there are varying degrees of relevance. Post-
Richardson, we recognize that evidence either is relevant or it is
not, and we therefore do not use the Marks terminology in our
analysis of this case.

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 State v. Ashby

behavior with other children, reasoning that although some of
this evidence was relevant, its admission “would render great
embarrassment” to Child. The court also explained, “[He] is
likely to be frightened and confused by the prior experiences
and likewise afraid of having to discuss them, or having them
discussed about him, in a public and open forum.” It added,
“This is true particularly in light of the evidence that [he] was
the instigator of . . . the other sexual behaviors [Ashby] now
seeks to include.” Ashby argues that excluding evidence of
Child’s other sexual behavior was disproportionate to the
purposes of rule 412. She also contends the protections of rule
412 are unnecessary, inasmuch as she could introduce the
evidence briefly without cross-examining Child and without
further embarrassing or humiliating him. We agree with the trial
court’s assessment.

¶27 Our supreme court has instructed that “rule 412 should be
construed broadly in order to fully effectuate the policy
considerations underlying its prohibitions.” Martin, 2002 UT 34,
¶ 42. The rule has several goals, including “protecting victims of
sexual assault from humiliation, encouraging victims to report
sexual crimes, and preventing the introduction of ‘irrelevant and
collateral issues that may confuse or distract the jury.’” State v.
Marks, 2011 UT App 262, ¶ 48, 262 P.3d 13 (quoting State v.
Tarrats, 2005 UT 50, ¶ 24, 122 P.3d 581). When a young victim is
involved, we have recognized that a “child is likely to be
confused and frightened about the past experience, the child
may have inadequate vocabulary to discuss it, and the stress of
confronting those memories may increase the likelihood that the
child will be unable to testify competently about the current
allegations.” Id. ¶ 50. Consequently, “rule 412’s goal of
protecting victims of sexual crimes from embarrassment and
humiliation, and of encouraging them to report the crimes, are
strongly implicated when the complainant is a child.” Id.

¶28 The risk that Child would suffer embarrassment and
humiliation is great notwithstanding Ashby’s assertion that she
could offer the evidence without cross-examining him. Even if
Ashby used other witnesses to adduce the evidence of Child’s

20121070-CA 10 2015 UT App 169
 State v. Ashby

sexual behavior with other children, rule 412 was designed to
protect against the public disclosure of this type of evidence—
regardless of whether the proponent seeks to introduce the
evidence during examination of the victim or other witnesses. 5
See id. ¶ 51. Accordingly, we are not persuaded that the
exclusion of the challenged evidence here was disproportionate
to the purposes of rule 412. Instead, we agree with the court’s
conclusion that excluding this evidence was consistent with the
rule’s purposes.

¶29 We turn now to the trial court’s alternative basis for
excluding the challenged evidence, rule 403 of the Utah Rules of
Evidence.

B. Rule 403

¶30 Ashby also challenges the trial court’s exclusion of Child’s
other sexual behaviors under rule 403. Ashby asserts that “any
danger of unfair prejudice is dwarfed by the probative value of
this evidence” to all three of her purposes.

¶31 Rule 403 allows a court to exclude relevant evidence “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. “We allow trial courts considerable

5. The advisory committee note states that rule 412 “bars the
admission of such evidence, whether offered as substantive
evidence or for impeachment, except in designated
circumstances[, i.e., the rule’s exceptions].” Utah R. Evid. 412
advisory committee note. It might be more difficult for a child
witness to testify directly about his sexual behavior, but even if
this were not the case, the public disclosure of such behavior
would still likely cause embarrassment and humiliation and
tend to discourage future reporting of sexual crimes by the child
himself and by other victims concerned about potential
disclosure of such matters in the course of prosecution.

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 State v. Ashby

freedom in applying [rule 403] to the facts . . . .” State v. Boyd,
2001 UT 30, ¶ 40, 25 P.3d 985 (alteration in original) (citation and
internal quotation marks omitted). Further, “[w]e will not
overturn the trial court’s ruling [on the application of Rule 403]
unless the abuse of discretion is so severe that it results in a
likelihood of injustice.” Tarrats, 2005 UT 50, ¶ 39 (alterations in
original) (citation and internal quotation marks omitted).

¶32 In the context of deciding whether evidence that falls
within an exception to rule 412 is otherwise admissible, a court
will admit the evidence under rule 403 only if it determines “that
the probative value of the evidence outweighs the danger of
unfair prejudice, confusion of the issues, or misleading the jury.”
State v. Bravo, 2015 UT App 17, ¶ 26, 343 P.3d 306 (citing Boyd,
2001 UT 30, ¶ 41); see also id. ¶ 19 (“[T]o be admissible, the
probative value of any particular piece of rule 412 evidence must
still outweigh the dangers of prejudice inherent in its
admission.”).

1. The Sexual Innocence Inference

¶33 The trial court determined that even if an exception to
rule 412 would allow admission of the evidence, the court would
nevertheless exclude it based on rule 403 of the Utah Rules of
Evidence. The court explained that on one hand, Child’s young
age—ten years old at the time of trial—would support the
likelihood of the jury drawing a sexual innocence inference. On
the other hand, the court determined the evidence had limited
probative value, because the “nature of the 412 evidence is quite
dissimilar to the nature of the allegations in this matter.” Ashby
contends the evidence of Child’s other sexual behaviors was
necessary to rebut the jury’s likely assumption that he was too
young to fabricate a description of the abuse unless Ashby
actually abused him. Ashby asserts that the similarity between
her alleged behavior with Child and his sexual behaviors with
other children supports an inference that he fabricated the
allegations against her.

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 State v. Ashby

¶34 In considering the probative value of the evidence of a
child victim’s other sexual behavior for purposes of rebutting the
sexual innocence inference, trial courts first consider “the age of
the child complainant at the time the child describes the sexual
assault.” 6 State v. Marks, 2011 UT App 262, ¶ 37, 262 P.3d 13.
Here, Child was eight years old when he first disclosed Ashby’s
abuse and ten years old at trial. The prosecutor raised the sexual
innocence inference in closing argument, asserting that given his
age, Child could not fabricate the allegations against Ashby
because he would not know and be able to describe the details of
female anatomy and sexual arousal. We agree with the trial court
that Child’s young age would support the likelihood that the
jury might draw the sexual innocence inference in this case.

¶35 Next, courts evaluate the probative value of a child
victim’s sexual behavior with respect to his ability to fabricate
the current allegations by analyzing “whether the prior sexual
activity is similar to that involved in the allegations against the
defendant.” Id. ¶ 39. In considering the similarity between a
child complainant’s other sexual activity and the alleged abuse,
courts “focus[] on the utility of the evidence in rebutting the
sexual innocence inference.” Id. ¶ 40. The probative weight
depends on the degree of similarity between those acts and the
alleged abuse. See id. ¶¶ 40–41; see also Bravo, 2015 UT App 17,
¶ 29 (“[T]he probative value of prior sexual history may be
greater when the prior acts are similar to the charged conduct.”
(citing State v. Richardson, 2013 UT 50, 308 P.3d 526)).

¶36 The trial court determined that Child’s sexual behavior
with other children was not similar to the allegations against

6. The “sexual innocence inference” refers to “the jury’s likely
assumption that a child would not have . . . sexual knowledge
but for the charged abuse.” Marks, 2011 UT App 262, ¶ 33.
“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.

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 State v. Ashby

Ashby. As the court explained, all but one instance of Child’s
sexual behavior with other children involved oral stimulation
with other males. Taken together, the rule 412 evidence “[did]
not explain [Child’s] ability to describe the breast stimulation or
digital vaginal and anal penetration alleged in this matter.”
Ashby challenges this conclusion and argues the evidence shows
Child had a sophisticated knowledge of sexual activity.
Specifically, Ashby argues, Child’s sexual behavior with other
children was similar to the allegations against her.

¶37 We agree that the nature of some of Child’s sexual
behavior with other children was sufficiently similar to the
specific sexual acts Ashby was alleged to have committed
against him to cross the low threshold of relevance. But we also
agree with the trial court that the dissimilarities considerably
weaken the probative value of Child’s other behavior with
respect to his ability to fabricate the allegations concerning
Ashby. 7 See Marks, 2011 UT App 262, ¶¶ 41, 43 (indicating that a
child victim’s simulation of sexual intercourse was not probative
of his ability to fabricate allegations that the defendant orally
sodomized him). Child’s sexual behavior with other children
involved having others touch his private parts, as well as Child’s
oral contact with the sexual parts of others. The acts committed
here are only similar to the extent they included manual
touching of Child’s and Ashby’s sexual body parts. A significant
difference, however, is that Ashby’s acts did not include oral
stimulation. As a result, we conclude the trial court did not
abuse its discretion in excluding this evidence on the ground
that its probative value in rebutting the sexual innocence

7. Ashby also claims the dissimilarity “shows that someone else
was teaching [Child] this behavior.” But this court explained in
Marks that dissimilar sexual activity is not probative of “a child’s
ability to fabricate allegations of sexual abuse against a
defendant.” See id. ¶¶ 39–43. In light of this case law, Ashby has
failed to convince us that dissimilar sexual activity is probative
to rebutting the sexual innocence inference.

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inference did not outweigh the potential for unfair prejudice to
Child of the kind addressed by rule 412.

2. The Challenge to Child’s Credibility

¶38 Next, Ashby claims the evidence of Child’s sexual
behavior with other children should have been admitted for
impeachment purposes. Specifically, she proposed to introduce
evidence that during the CJC interview Child failed to disclose
his sexual behavior with other children and he was dishonest
with Second Therapist about the incidents. Ashby asserts that
the exclusion of this evidence “left the jury with the false
assumption that [Child] was not only telling the truth, but had
no history of being untruthful.”

¶39 With respect to any omission about Child’s sexual
conduct with other children during the CJC interview, the trial
court reasoned that Child was never asked questions that would
elicit such a disclosure. If he was not asked about such
behaviors, the fact that he did not disclose them “does not
support [Ashby’s] theory for [admission] that [Child] is
dishonest about such sexual behaviors.” Although this evidence
was relevant, we agree its probative value is relatively low
because Child was not asked specific questions that would draw
out disclosure of his other sexual behavior.

¶40 With respect to Child’s dishonesty in his therapy sessions
with Second Therapist about his behavior with other children,
the trial court found that “only a single progress note” was
relevant to Child’s truthfulness. The court explained that Second
Therapist’s note “reflect[ed] a connection between [Child’s]
sexual conduct and his dishonesty about the conduct.” The court
nevertheless excluded the evidence under rule 403, finding “it
would be more prejudicial to the State and [Child, than] it would
have probative value for [Ashby].” We cannot say this is an
abuse of discretion, and in any event, as the trial court observed,
“There are many ways to impeach the victim’s [honesty] without
a resort to his other sexual behaviors.” For instance, the court’s
ruling permitted Ashby to question Child about his failure to

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report the charged abuse to First Therapist and about the
differences in the amount of such abuse reported to Second
Therapist compared to the amount of abuse reported during the
CJC interview. The ruling also allowed Ashby to question other
witnesses about Child’s general reputation for dishonesty. Given
these alternative methods of addressing the issue, the probative
value of the rule 412 evidence was quite low compared to its
potential for unfair prejudice. We therefore do not agree with
Ashby that the rule 412 evidence should have been admitted for
impeachment purposes and we conclude that the trial court did
not abuse its discretion.

3. Child’s Failure to Disclose Ashby’s Abuse Earlier

¶41 In a related argument, Ashby contends the trial court
erroneously excluded evidence that Child reported some of his
sexual behavior with other children to First Therapist. According
to Ashby, these disclosures “show that [Child] was capable of
and had multiple opportunities to report to [First Therapist]
inappropriate sexual contact by Ashby, if such abuse actually
occurred.”

¶42 Although this evidence is relevant to demonstrate Child
had earlier opportunities to disclose Ashby’s abuse, Ashby had
other means of effectively showing Child delayed reporting. See
State v. Quinonez-Gaiton, 2002 UT App 273, ¶¶ 17–18, 54 P.3d 139.
In fact, the jury heard evidence that Child did not disclose the
abuse to First Therapist even though First Therapist was treating
him during that period. Moreover, the jury heard that Child
reported some of Ashby’s disturbing conduct to First Therapist,
including that she took baths with him and had picked at his
scrotum. The jury also learned that Child told First Therapist
these incidents made him uncomfortable. Ashby’s counsel
highlighted these facts during closing statements to argue that
Child’s memory had been influenced by external sources and
that Child would have disclosed the charged abuse sooner if it in
fact occurred.

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 State v. Ashby

¶43 In sum, Ashby has not demonstrated that the trial court
exceeded its discretion in ruling that the evidence of Child’s
other sexual behavior was inadmissible under rule 403.
Although we have determined the evidence was relevant, we
agree its admission might have confused the issues and focused
the trial on tangential matters. We also agree with the trial
court’s determination that admitting the rule 412 evidence might
lead the parties to focus on developing facts surrounding
tangential incidents with other children, and “‘only
embarrassing and intrusive questioning’” of Child could reveal
what actually triggered his conduct. 8 (Quoting State v. Marks,
2011 UT App 262, ¶ 52, 262 P.3d 13.) The court ruled the
probative value therefore did not outweigh the danger of unfair
prejudice, and we conclude that this determination was within
the scope of the court’s discretion.

C. Conclusion

¶44 In summary, we conclude that the rule 412 evidence of
Child’s sexual behavior with other children was relevant to his
ability to fabricate the abuse allegations against Ashby, and
relevant to his truthfulness and his delay in reporting the abuse.
We nevertheless affirm the trial court’s ruling that the exclusion
of the rule 412 evidence furthered the purposes of rule 412. In
addition, because the probative weight of the evidence was
slight in contrast to its substantial prejudice, the trial court’s
determination to exclude it pursuant to rule 403 was not an

8. The trial court quoted this language from State v. Marks, 2011
UT App 262, 262 P.3d 13, presumably to point out that it would
take embarrassing questions to explain why Child engaged in
these behaviors with other children. The court also quoted
additional language from Marks stating, “‘Because the jury might
engage in speculation about what prompted the incident [of
sexual behavior with other children], admission of the evidence
could result in confusion of the issues to be decided . . . .’”
(Alteration in original.) (Quoting id. ¶ 52.)

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 State v. Ashby

abuse of discretion. Because Ashby has not shown that evidence
of Child’s other sexual conduct was admissible to vindicate her
constitutional rights, we also affirm the trial court’s exclusion of
the evidence under rule 403.

II. The DVD Taken into the Deliberating Room

¶45 Next, Ashby argues the trial court erred in sending the
DVD of the CJC interview to the jury room during deliberations.
Ashby claims the court’s decision allowed the jury to “put too
much emphasis . . . on the CJC interview, thereby bolstering
[Child’s] testimony and improperly diminishing Ashby’s
testimony.” The State counters that the DVD of the CJC
interview was an exhibit received into evidence that rule 17(l) of
the Utah Rules of Criminal Procedure permits the court to
provide the jury during deliberations.

¶46 Because Ashby has not convinced us she was harmed by
the trial court’s decision, we do not address whether sending the
DVD of the CJC interview into jury deliberations was erroneous.
Rule 17(l) allows the jury to take jury instructions and “all
exhibits which have been received as evidence” into
deliberations with them. Utah R. Crim. P. 17(l). The rule permits
the court to withhold certain exhibits from deliberations unless
the jury requests it. Id.

¶47 Ashby asks us to assume the jury watched the CJC
interview during its deliberations, but we will not do so under
the circumstances of this case, because nothing suggests the jury
watched it. Accordingly, any error in allowing the CJC interview
to be included with the exhibits for the jury to view during
deliberations would be harmless. When the case was submitted
to the jury, the court specifically discussed sending a CD player
with the jurors so they could listen to the recorded phone calls
that had been admitted as exhibits. The record does not disclose,
however, that the court made similar arrangements so the jury
could play the DVD of the CJC interview. In fact, when
announcing its ruling to allow the jurors to take the DVD into
the jury room, the court stated that it usually does not

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 State v. Ashby

“automatically send a TV back with [the jurors] to play [the
recording].” It further explained, “We wait until they ask for it
and . . . then we send in a TV with them.” There is no indication
in the record that the court deviated from this practice, nor is
there any indication the jury requested or received a DVD player
while it deliberated. In light of these facts, we cannot infer or
assume that the jury requested, or that the court allowed, access
to equipment that would enable it to watch the DVD during
deliberations. Because the record does not suggest that the jury
actually played the DVD of the CJC interview during its
deliberations, even if the trial court erred by permitting the jury
to take the DVD into deliberations, Ashby has not demonstrated
the error was harmful.

CONCLUSION

¶48 Although we have determined that the rule 412 evidence
of Child’s sexual behavior with other children was relevant, the
trial court acted within its discretion in excluding the evidence to
further the purposes of rule 412. Furthermore, the court acted
within its discretion in excluding the evidence pursuant to rule
403. Even if an exception of rule 412 applied, the evidence was
inadmissible under rule 403 because its probative value did not
outweigh the danger of unfair prejudice. Finally, because there is
no evidence the jury actually watched, or was capable of
watching, the DVD of the CJC interview as it deliberated, any
error in allowing it into the deliberating room was harmless.
Accordingly, we affirm.

20121070-CA 19 2015 UT App 169