State v. Van Oostendorp

2017 UT App 85

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
TREVOR PAUL VAN OOSTENDORP,
Appellant.

Opinion
No. 20150135-CA
Filed May 18, 2017

First District Court, Logan Department
The Honorable Brian G. Cannell
No. 141100266

David M. Perry, Attorney for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
GREGORY K. ORME concurred. Judge J. FREDERIC VOROS JR.
concurred, with opinion.

ROTH, Judge:

¶1 After a jury trial, Trevor Paul Van Oostendorp was
convicted of forcible sodomy and sentenced to an indeterminate
prison term of five years to life. He appeals the conviction,
challenging the evidence used against him and one of the court’s
jury instructions. We affirm.
 State v. Van Oostendorp

BACKGROUND1

¶2 Van Oostendorp met Victim online in April 2013 and then
in person in May. They began a relationship that Victim
described as initially good and that included consensual sex.
However, by late summer the relationship began to sour; Van
Oostendorp started to use derogatory language to describe
Victim, and he became physically abusive by pushing and
shoving her “a lot.” Victim also found Van Oostendorp to be
temperamental. His temper was often triggered by money issues
related to alimony and child support from a previous marriage,
and he would take his anger out on Victim.

¶3 By the fall of 2013, Van Oostendorp became more abusive.
During oral sex on one occasion, he held Victim’s head down
until she began to vomit, telling her afterwards that he thought
“it was hot.” During one argument in which he accused Victim
of being unfaithful, Van Oostendorp reached for a gun and
threatened to hold it to her head to make sure she was
answering truthfully. Although she was able to calm him down
that time, Victim also recounted an incident the following
January in which Van Oostendorp again threatened her with
violence. After losing his temper, he told Victim “that he was
going to shoot [her]. That he was going to scalp [her]. That he
was going to beat [her] face in. That [her] daughter would no
longer have a mother.” Victim called the police, but Van
Oostendorp had fled the scene by the time they arrived.
Afterwards, the pair temporarily reconciled.

¶4 The next month, over Valentine’s Day weekend, the two
quarreled again over the phone and by text message. Although

1. “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).

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 State v. Van Oostendorp

they had previously made plans for the weekend, Van
Oostendorp became upset and told Victim, “I’m not coming back
there at all. I’m done.” When Victim asked about the $1,000 Van
Oostendorp owed her, he told her to “take the thousand
dollars.” Using a signed blank check that Van Oostendorp had
previously given her, Victim did so. However, Van Oostendorp
then “got irate” when he learned that she had actually followed
through on his offer. He told her he had reported her to the
fraud department at his bank and that she was “going to go to
jail . . . [and] going to lose [her] daughter.” When Victim accused
Van Oostendorp of lying to the bank about the cashed check, he
said, “You’re damn skippy I lied.” Van Oostendorp also
threatened to beat Victim and claimed that she was “going to
have marks” that she would need to explain away at work.
Victim was “absolutely terrified” by the threats, and she called
her ex-husband to ensure that he would “take care of [their
daughter]” if she did not “make it out today.”

¶5 Still interacting by phone and apparently having
reconsidered his earlier beakup text, Van Oostendorp ordered
Victim to “get ready for him” to come home by taking a bath.
Although she did not know what she was getting ready for,
Victim complied because she “was so scared of him and [she]
just wanted to try to ease things over and try and calm him
down.” As Victim described the events at trial, Van Oostendorp
ordered her to stand against the wall in the shower when he
arrived at the house. He removed his belt, smacked her with it,
and then put the belt in her mouth. He pushed her down onto
her knees in the bath tub. He began to urinate “on [her] head
and in [her] eyes, and it was running in [her] mouth,” which she
was not able to close because of the belt. As he did this, he asked
Victim, “How do you like that? How do you like that?”

¶6 Van Oostendorp then got undressed, stood Victim up,
and pushed her forward so that he was behind her. He spit on
her anus and then “shoved” his penis into it. Victim, crying,

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screamed in pain and said, “No, stop. It hurts.” Van Oostendorp
told Victim to be quiet because he did not want the neighbors to
hear. He also forced Victim to look at herself “in the mirror with
the urine in [her] hair and [her] makeup running down [her]
face.” Finally, he put her in the shower and told her to clean off.
When Victim got out of the shower, she was in pain, physically
shaking, and bleeding. When asked at trial whether the sexual
encounter in the bathroom was consensual, Victim testified,
“No, it was not.”

¶7 The State charged Van Oostendorp with forcible sodomy,
a first degree felony, under Utah Code section 76-5-403. Before
trial, Van Oostendorp moved for a determination of whether
Victim was competent to testify at trial and whether her
testimony was reliable. The court denied the motion, finding that
it had “no legitimate doubts” about her competency and that
any questions of reliability “could be adequately investigated
through cross-examination.” Van Oostendorp also sought to
exclude evidence about his history of abusive treatment of
Victim under Utah Rule of Evidence 404(b), which prohibits the
use of prior bad acts “to prove a person’s character in order to
show that on a particular occasion the person acted in
conformity with the character.” The court allowed much of the
contested evidence, but excluded some.

¶8 At trial, Van Oostendorp conceded that much of the
alleged conduct, and specifically the anal sex, had taken place.
Thus, whether the sodomy itself—the actus reus of the crime—
had occurred was not at issue. Instead, the question for the jury
was one of consent. The State put on evidence that Victim had
not consented and that Van Oostendorp was at least reckless
regarding the lack of consent. A significant part of the State’s
theory of the case involved characterizing the relationship as
generally abusive. Specifically, the State characterized Victim as
the subject of a pattern of domestic abuse, sexual and otherwise.
Van Oostendorp’s defense likewise focused on Victim’s consent

20150135-CA 4 2017 UT App 85
 State v. Van Oostendorp

and his mens rea regarding her consent. He argued that he was
acting under a mistake of fact as to Victim’s consent when the
sexual acts underlying the charge took place, a mistaken belief
he claimed was supported by the couple’s pattern of
consensually engaging in rough sexual activity in the past. That
is, his trial theory was that he reasonably thought she consented,
even if she did not.

¶9 Van Oostendorp sought a jury instruction based on this
theory. While the court did not submit the requested instruction
to the jury, it did add a paragraph to an existing instruction that
addressed the effect of a mistaken belief as to consent. The jury
convicted Van Oostendorp of forcible sodomy, and he was
sentenced to a prison sentence of five years to life. He appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Van Oostendorp raises three arguments in this appeal.
First, he contends that the State submitted insufficient evidence
to sustain a jury verdict against him. “When a jury verdict is
challenged on the ground that the evidence is insufficient, . . .
[w]e review the evidence and all inferences which may
reasonably be drawn from it in the light most favorable to the
verdict of the jury.” State v. Hamilton, 827 P.2d 232, 236 (Utah
1992) (citation an internal quotation marks omitted). “We reverse
a jury conviction for insufficient evidence only when the
evidence, so viewed, is sufficiently inconclusive or inherently
improbable that reasonable minds must have entertained a
reasonable doubt that the defendant committed the crime of
which he was convicted.” Id. (citation and internal quotation
marks omitted).

¶11 Second, Van Oostendorp argues that the trial court
applied rule 404(b) too broadly and erroneously allowed
evidence of prior bad acts that was unduly prejudicial. “We
review a trial court’s decision to admit other acts evidence under

20150135-CA 5 2017 UT App 85
 State v. Van Oostendorp

rule 404(b) of the Utah Rules of Evidence under an abuse of
discretion standard.” State v. Plexico, 2016 UT App 118, ¶ 22, 376
P.3d 1080 (brackets, citation, and internal quotation marks
omitted).

¶12 Third, Van Oostendorp claims that the trial court erred
when it declined to give the jury his proposed mistake of fact
instruction. “Whether a trial court committed error in refusing to
give a requested jury instruction is a question of law, which we
review for correctness.” State v. Kruger, 2000 UT 60, ¶ 11, 6 P.3d
1116. However, “[f]ailure to give requested jury instructions
constitutes reversible error only if their omission tends to
mislead the jury to the prejudice of the complaining party or
insufficiently or erroneously advises the jury on the law.” State v.
Stringham, 2001 UT App 13, ¶ 17, 17 P.3d 1153 (citation and
internal quotation marks omitted).

ANALYSIS

I. Sufficiency of the Evidence

¶13 Van Oostendorp argues that the “[e]vidence presented by
the State was not sufficient to sustain a jury verdict against
[him]” because Victim “was incompetent and too unreliable to
testify.” Without Victim’s testimony, which he contends the
court should have excluded, “the chances of the State securing a
conviction against [Van Oostendorp] were exceedingly
miniscule, if [not] non-existent.” Assuming without deciding
that Victim’s testimony was essential to the State’s case, the
question presented on appeal is whether the court properly
determined that Victim was competent to testify at Van
Oostendorp’s trial.

¶14 “Utah law imposes a very low bar for establishing the
competency of a witness.” State v. Calliham, 2002 UT 87, ¶ 22, 57
P.3d 220. Utah Rule of Evidence 601(a) states, “Every person is

20150135-CA 6 2017 UT App 85
 State v. Van Oostendorp

competent to be a witness unless these rules provide otherwise.”
However, “[a] witness may testify to a matter only if evidence is
introduced sufficient to support a finding that the witness has
personal knowledge of the matter.” Utah R. Evid. 602. Although
the rule requires some foundation for a witness’s testimony, the
standard is quite low: “It merely requires that the witness have
the opportunity and the capacity to perceive the events in
question.” State v. Eldredge, 773 P.2d 29, 33 (Utah 1989).

¶15 In support of his argument that Victim was incompetent
to testify, Van Oostendorp directs our attention to a single
statement in Victim’s psychological evaluation, which stated,
“[Victim] reported that she has experienced a loss of memory for
specific aspects of the alleged sodomy.” As we understand it,
Van Oostendorp contends that Victim’s memory gaps rendered
her incapable of perceiving the events in question as required by
the rules of evidence, or, more specifically, that the memory gaps
prevent her from recalling the events, even if she perceived them
in the first instance. He relies on Ladd v. Bowers Trucking, Inc.,
2011 UT App 355, 264 P.3d 752, to support his contention. In that
case we stated that “[the witness’s] admitted memory gap
indicates that he lacked the capacity to ‘observe,’ even assuming
he had the ‘opportunity’ to do so by being physically present at
the scene.” Id. ¶ 8.

¶16 We agree that both the capacity to perceive events and the
ability to recall them are integral to a witness’s competence to
testify. Id. (“[A] lay witness is only competent to testify if . . . the
witness both perceived a relevant event and can recall the
event.” (citation and internal quotation marks omitted)).
However, Ladd presents a significantly different scenario from
the one at issue here. In that case, the witness “clearly stated in
his deposition that his account of the [event] [was] ‘actually
[him] reliving [his] dream’ and that, putting the dream aside, he
otherwise had absolutely no recollection of the [event].” Id.
(third and fourth alterations in original). Thus, the rule of Ladd is

20150135-CA 7 2017 UT App 85
 State v. Van Oostendorp

that a witness cannot testify to a matter of which she has no
memory.

¶17 Here, in stark contrast, the psychological report explains
the minor nature of Victim’s memory gaps. For instance, the
report recounted her statement that “[s]ometimes the order [of
the events in the shower] will get jumbled for me.” She also
admitted to not remembering Van Oostendorp getting
undressed during the incident, or what clothing he wore after
the incident. But this sort of minor memory problem is far
different from the circumstances in Ladd, where the witness
conceded that he had absolutely no recollection of an event aside
from a dream.

¶18 In addition, the record demonstrates that Victim had both
the opportunity and the capacity to perceive the sodomy, and
that she could recall the event in detail. For example, Victim’s
testimony about the act itself—not including the lead up and
aftermath—covers three pages of transcript, over half of which is
comprised of her recounting the crime in specific detail without
interruption or prompting by court or counsel. And her
testimony made clear that her memory was based on her direct
perception of the events as they occurred.

¶19 When addressing this issue below, the trial court
determined that any questions about Victim’s ability to testify
accurately and truthfully about the incident, including
exploration of any memory gaps, “could be adequately
investigated through cross-examination.” We agree. Victim was
present during the event. She had the capacity to perceive the
event, and she later recalled what happened in detail. Any
minor memory gaps she displayed related to her credibility as
a witness, if anything, not to her competency to give
testimony. See State v. Prater, 2017 UT 13, ¶¶ 31–32, 392 P.3d 398
(explaining that the jury is the exclusive judge of both witness
credibility and the weight to be given particular testimony
unless the testimony “was so unreliable that it cannot form the

20150135-CA 8 2017 UT App 85
 State v. Van Oostendorp

basis of a conviction”); see also State v. Christensen, 2016 UT App
255, ¶ 20, 387 P.3d 588 (determining that a victim was competent
to testify even though the effects of a drug rendered her memory
incomplete).

¶20 Because “[t]he jury is the exclusive judge of credibility,”
Utah Code Ann. § 78B-1-128(4) (LexisNexis 2012), “we will not
act as a second trier of fact” on appeal, Prater, 2017 UT 13, ¶ 41.
We therefore conclude that the trial court did not abuse it’s
discretion in determining that Victim was competent to testify at
trial and that any questions about her credibility were properly
left to the jury.2

2. Van Oostendorp also seems to argue that Victim’s testimony
was unreliable and should have been excluded under rule 403,
which allows the court to “exclude relevant evidence if its
probative value is substantially outweighed by a danger of one
or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Utah R. Evid. 403. Van
Oostendorp apparently contends that the same memory lapses
that rendered Victim incompetent to testify also made her
testimony so unreliable as to be unfairly prejudicial. Like his
competency argument, however, this contention is about
Victim’s credibility as a witness, not the reliability of her
testimony. And as we have discussed, credibility questions are
wholly within the province of the jury. Van Oostendorp has not
undertaken the analysis necessary to demonstrate that Victim’s
testimony was incredible as a matter of law. See State v. Prater,
2017 UT 13, ¶ 32, 392 P.3d 398 (explaining that the only
exception to the general rule prohibiting appellate courts from
“reassessing or reweighing evidence” occurs when testimony “is
so inconclusive or inherently improbable that it could not
support a finding of guilt beyond a reasonable doubt” (citation
(continued…)

20150135-CA 9 2017 UT App 85
 State v. Van Oostendorp

II. Prior Bad Acts Evidence

¶21 Van Oostendorp next claims that the trial court
erroneously allowed “a wide variety of evidence of prior ‘bad
acts’ under Utah Rule of Evidence 404(b),” much of which “had
no bearing on whether the alleged crime had taken place, and
was used in a manner that served to impermissibly impugn [Van
Oostendorp’s] character.”

¶22 Rule 404(b) controls the intersection of two competing
evidentiary interests. On one hand, the rule recognizes the
“dangers of exposing a jury to evidence of a defendant’s acts of
prior misconduct—specifically, the risk that the jury will infer
that the defendant has a reprehensible character, that he
probably acted in conformity with it, and that he should be
punished for his immoral character.” State v. Thornton, 2017 UT
9, ¶ 35, 391 P.3d 1016 (citation and internal quotation marks
omitted). “On the other hand, the rule also recognizes that acts
of prior misconduct may also sustain an alternative—and
entirely permissible—inference.” Id. ¶ 36. The rule can be
difficult to apply, however, because “evidence of prior bad acts
often will yield dual inferences—and thus betray both a
permissible purpose and an improper one.” Id. ¶ 37 (citation and
internal quotation marks omitted).

(…continued)
and internal quotation marks omitted)). Without such an
analysis, Van Oostendorp cannot meet the heavy burden to
show an error. See State v. Jones, 2015 UT 19, ¶ 29, 345 P.3d 1195
(“Rule 403 imposes on [Van Oostendorp] the heavy burden not
only to show that the risk of unfair prejudice is greater than the
probative value, but that it substantially outweighs the probative
value.” (brackets and internal quotation marks omitted)).

20150135-CA 10 2017 UT App 85
 State v. Van Oostendorp

¶23 “Stated succinctly, to be admissible, evidence of prior bad
acts must be relevant and offered for a genuine, noncharacter
purpose; furthermore, the probative value of the evidence must
not be substantially outweighed by the danger of unfair
prejudice.” State v. Lucero, 2014 UT 15, ¶ 13, 328 P.3d 841,
abrogated in part on other grounds by Thornton, 2017 UT 9, 391 P.3d
1016. “The threshold 404(b) question is whether the evidence has
a plausible, avowed purpose beyond the propensity purpose
that the rule deems improper. If it does then the evidence is
presumptively admissible (subject to rule 402 and 403 analysis).”
Thornton, 2017 UT 9, ¶ 58 (emphasis omitted). Thus, a trial
court’s job when confronted with a dispute under rule 404(b) is
first “to assess the avowed basis for evidence of prior
misconduct.” See id. ¶ 56. If the evidence is relevant and offered
for a proper purpose, the court moves on “to judge its likely
effect in prejudicing or confusing the jury” under rule 403. See id.
To assist in the trial court’s determination, our supreme court
has articulated factors that “may be helpful” in a rule 403
analysis—the so-called Shickles factors. See Lucero, 2014 UT 15,
¶¶ 31–32 (stating that a court “may consider” the factors
announced in State v. Shickles, 760 P.2d 291 (Utah 1988)).3

3. Recently, our supreme court precedent has relegated the
Shickles factors to marginal status. The court explained that,
“while some of these factors may be helpful in assessing the
probative value of the evidence in one context, they may not be
helpful in another. It is therefore unnecessary for courts to
evaluate each and every factor and balance them together in
making their assessment.” State v. Lucero, 2014 UT 15, ¶ 32, 328
P.3d 841, abrogated in part on other grounds by State v. Thornton,
2017 UT 9, 391 P.3d 1016; see also State v. Lowther, 2017 UT 24,
¶ 41. “This is because courts are bound by the text of rule 403,
not the limited list of considerations outlined in
Shickles. . . . Simply put, a trial court may exclude evidence if ‘its
(continued…)

20150135-CA 11 2017 UT App 85
 State v. Van Oostendorp

¶24 The trial court followed this process here. The State
moved to admit evidence of prior bad acts and Van Oostendorp
contested its admissibility under rule 404(b). After receiving
briefing from both parties, the court held a hearing on the matter
and issued a written order. In its order, the trial court analyzed
fifteen categories of evidence offered by the State to consider
whether they passed muster under rule 404(b) and rule 403. The
court determined that six categories did not meet the rules’
requirements but that nine did, including all four categories that
Van Oostendorp now challenges. On appeal, “the question for us
is not whether we would have admitted this evidence. It is
whether the district [court] abused [its] broad discretion in doing
so.” Thornton, 2017 UT 9, ¶ 56.

¶25 Van Oostendorp argues that the trial court erred in
admitting a wide array of prior bad acts evidence under rules
403 and 404(b). Before addressing these arguments, the context
of the trial is helpful background. As we explained above, each
party’s theory of the case centered on the issue of consent—the
State argued that Victim did not consent to the sodomy, while
Van Oostendorp argued that, even if she did not consent, he
reasonably believed she did. In its case in chief, the State focused
on the nature of the relationship. Specifically, the State used
prior bad acts evidence to show that the relationship was
generally abusive and to portray Victim as the frightened and
demoralized target of Van Oostendorp’s abuse. In defense, Van
Oostendorp’s theory of the case was that “much of the [bad acts
evidence] was part and parcel to the couple’s
submissive/dominant type of sexual [relationship] that was
completely consensual.”

(…continued)
probative value is substantially outweighed by’ a number of
considerations, including ‘the danger of unfair prejudice.’”
Lucero, 2014 UT 15, ¶ 32 (quoting Utah R. Evid. 403).

20150135-CA 12 2017 UT App 85
 State v. Van Oostendorp

¶26 On appeal, Van Oostendorp asserts that four types of
evidence should have been excluded from trial: his text
messages to Victim that included disrespectful language and
name calling; evidence that Van Oostendorp viewed Victim as a
sex object; evidence of his use of a weapon to intimidate Victim
and associated death threats; and an alleged threat to stab Victim
with a knife the day after the charged events. These four
individual types of evidence fall into two broad categories: first,
Van Oostendorp’s demeaning treatment of Victim, including the
text messages with name-calling and disrespectful language, and
the “sex object” evidence; and second, the threats of violence
against her.

¶27 In its pretrial evidentiary ruling, and with both parties’
theories of the case in mind, the court addressed each category of
evidence that Van Oostendorp now contests. With regard to the
first, the court determined that evidence of Van Oostendorp’s
disrespectful language and name calling was “relevant to the
overall story from both parties.” The court also chose to consider
the Shickles factors and found that “the strength of the evidence
is sufficient, [the text messages] are close in time, need has been
shown, and they are no worse than the crime charged.”
Likewise, the court allowed evidence that Van Oostendorp
viewed Victim as a sex object because such evidence was “part
of both parties’ theories of the case.”

¶28 Van Oostendorp claims the court erred in admitting a
“vast number of text messages” because “problems arise at every
step” of a rule 403 balancing test based on the Shickles factors.
Specifically, he contends that there was no non-character
purpose for the evidence of disrespect and name calling and that
it was not relevant to the State’s case. He also claims that the
“sex object” evidence had “no bearing on whether the sexual
assault alleged occurred or not.” However, Van Oostendorp
does not support his contentions with descriptions and analysis
of any specific text messages, or even groups of messages, that

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 State v. Van Oostendorp

he claims the trial court wrongly allowed into evidence; rather,
he presents us with a single “see generally” record citation to
four volumes of trial transcript. Those four volumes encompass
almost all the non-expert testimony presented in the case and
span more than 780 pages. We decline to sift through days of
trial transcript on Van Oostendorp’s behalf. See State v. Thomas,
961 P.2d 299, 305 (Utah 1998) (“[T]his court is not a depository in
which the appealing party may dump the burden of argument
and research.” (citation and internal quotation marks omitted)).

¶29 Even if Van Oostendorp had cited discrete portions of the
record, he has still not shown how the trial court abused its
discretion when it admitted the texts. To be sure, Van
Oostendorp suggests that the court should have weighed the
Shickles factors differently. As we explained above, though, the
Shickles factors “may be helpful” to a court in applying the text
of rule 403, but applying them is not required. See State v. Lucero,
2014 UT 15, ¶ 32, 328 P.3d 841, abrogated in part on other grounds
by State v. Thornton, 2017 UT 9, 391 P.3d 1016. Rather, the
operative question is a broader one—whether the “probative
value [of the evidence] is substantially outweighed by a number
of considerations, including the danger of unfair prejudice.” Id.
(citation and internal quotation marks omitted). That balancing
exercise is necessarily a matter of discretion.

¶30 Here the trial court issued an order that explained in
some detail the basis for its decision to admit the disputed
evidence. That explanation seems reasonable on its face. See
Diversified Holdings, L.C. v. Turner, 2002 UT 129, ¶ 6, 63 P.3d 686
(“We . . . will not overturn a lower court’s determination of
admissibility [under rule 403] unless it is beyond the limits of
reasonability.” (citation and internal quotation marks omitted)).
Van Oostendorp fails to explain how the trial court’s actual
analysis of the specific evidence at issue was unsound.

¶31 For instance, the court determined that the text messages
and “sex object” evidence were relevant to both the State’s

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 State v. Van Oostendorp

theory and Van Oostendorp’s theory of the case. Indeed, in
keeping with his claim to have been mistaken about Victim’s
lack of consent to the sexual acts with which he was charged,
Van Oostendorp “testified at length that [the] back and forth” in
the text messages was a “playful, erotic, and consensual” part of
the relationship rather than disrespectful and abusive. And
evidence that he treated her as a sex object throughout their
relationship, which Van Oostendorp candidly acknowledges
“could loosely apply . . . to a vast majority of the interactions
between” the two, is clearly relevant to whether he actually
misperceived Victim’s lack of consent to the sodomy or simply
had so little regard for Victim that her consent—or lack thereof—
was of no interest to him at all.

¶32 Without any meaningful analysis, it is not evident how
the court’s decision to admit evidence that Van Oostendorp
himself relied on was unreasonable. Because he does not engage
with the trial court’s reasoning, Van Oostendorp has not
persuaded us that the court abused its discretion. See Allen v.
Friel, 2008 UT 56, ¶¶ 14–18, 194 P.3d 903 (noting that, for an
appellant to persuade a reviewing court that the district court’s
determinations were in error, the appellant must engage with
and challenge the actual bases of the district court’s decisions).

¶33 With regard to the second category of evidence, the trial
court allowed testimony that Van Oostendorp had made threats
against Victim, involving weapons, during two separate
confrontations. The court determined such evidence was
“relevant to establish an abusive/domestic violence relationship”
and that it went “to the alleged victim’s state of mind and to the
issue of consent on the part of the victim,” both non-character
purposes. The court then concluded that the evidence would not
unduly prejudice the jury because the evidence was “no worse
than the alleged crime.”

¶34 Van Oostendorp argues that the court should have
excluded this evidence because the question of whether a gun

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 State v. Van Oostendorp

was involved during an argument with Victim “came down to a
‘he said/she said’ confrontation” and that there “was no real
non-character purpose for offering [the] evidence.” He also
claims that the evidence of threats had “no bearing on whether
the alleged assault [he was charged with] ever took place.” And
as with the text message evidence, Van Oostendorp asserts
broadly that, in analyzing the evidence “under the Shickles
factors, such evidence should not have been allowed.”

¶35 It is true that the evidence in question was not relevant to
whether the sexual act underlying the sodomy charge actually
took place, but that was not an issue at trial—Van Oostendorp
admitted that it had, but claimed it was consensual. The State
offered the evidence for the purpose of rebutting that very claim.
In its order, the trial court determined that the evidence satisfied
the Shickles factors, was “relevant to establish an
abusive/domestic violence relationship,” and “[went] to the
alleged victim’s state of mind.” That is, the court determined
that there was a non-character purpose for the evidence, that it
was relevant, and that any danger of unfair prejudice did not
outweigh the probative value of the evidence. See State v. Lucero,
2014 UT 15, ¶ 13, 328 P.3d 841, abrogated in part on other grounds
by State v. Thornton, 2017 UT 9, 391 P.3d 1016 (laying out the test
for admissibility of prior bad acts evidence).

¶36 We agree with the trial court. The evidence was highly
probative, specifically on the issue of Victim’s consent—the key
issue on which Van Oostendorp’s defense turned. Indeed, his
defense opened the door to evidence about his own state of
mind. See State v. Rees, 2002 UT App 347U, para. 3 (“The trial
court did not abuse its discretion in admitting the [404(b)]
evidence because [the defendant] had already put his intent and
his alleged mistake regarding the victim’s consent squarely at
issue.”). The prosecution used evidence of his threats to harm
Victim with weapons to rebut Van Oostendorp’s theory that he
justifiably believed that Victim had consented to the charged act

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 State v. Van Oostendorp

of sodomy because she had agreed to rough sex in the past. The
State’s rule 404(b) evidence responded to that claim by painting
a picture of the defendant as a bully not particularly attentive to
the nuances of a consensual sexual relationship, and also by
suggesting that any apparent cooperation by Victim in rough or
demeaning sex acts in the past was a product of the abusive and
threatening environment Van Oostendorp had created and not
her own free will.

¶37 Thus, all the evidence at issue on appeal was relevant to
rebut Van Oostendorp’s defense that he reasonably assumed
Victim consented to the acts underlying the charges because she
had consented to similar acts before. And because the trial court
determined that the State clearly offered the evidence for a
noncharacter purpose, it would take more than the conclusory
analysis Van Oostendorp has provided on appeal to persuade us
that the trial judge exceeded his “discretion in deciding that the
probative value of this evidence was not substantially
outweighed by the risk of unfair prejudice.” Thornton, 2017 UT 9,
¶ 63, (internal quotation marks omitted). For these reasons, we
are not persuaded that the trial court abused its discretion when
it admitted the evidence Van Oostendorp challenges on appeal.

III. Jury Instruction

¶38 Finally, Van Oostendorp argues that the trial court erred
when it declined to give the defense’s proposed mistake-of-fact
instruction to the jury. The court should have issued the
instruction, he claims, because, “if the evidence supports an
affirmative defense, the State has the burden to prove beyond a
reasonable doubt that the defense does not apply.”

¶39 In the proceedings below, Van Oostendorp argued that he
had a statutory right to raise mistake-of-fact as an affirmative
defense. See Utah Code Ann. § 76-2-304(1) (LexisNexis 2012)
(“Unless otherwise provided, ignorance or mistake of fact which
disproves the culpable mental state is a defense to any

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 State v. Van Oostendorp

prosecution for that crime.”). The court agreed. Van Oostendorp
proposed language that, he claimed, properly instructed the jury
on his mistake-of-fact defense and the applicable burden of
proof. The State objected to the instruction and the court heard
argument on whether to give it. Ultimately, the court decided
not to give the proposed instruction to the jury because there
was no clear Utah precedent for doing so. However, the court
did agree to add language to the existing elements instruction in
keeping with this court’s decision in State v. Marchet, 2012 UT
App 197, 284 P.3d 668. Specifically, the court added one
paragraph to the existing elements jury instruction. It read, “If
you are convinced that the defendant honestly and reasonably
believed that [Victim] consented to the sexual activity with the
Defendant then you must find the defendant NOT GUILTY.”

¶40 Van Oostendorp’s point on appeal is that his testimony
and the testimony of his expert witness entitled him to a separate
jury instruction addressing his alleged mistake of fact as to
Victim’s consent. Accordingly, Van Oostendorp contends that
the trial court erred in rejecting the proposed instruction. As we
understand it, Van Oostendorp believes that the court’s decision
to “add some language”—the additional paragraph quoted
above—instead of giving the jury his proposed instruction
verbatim denied him the right to present his theory of defense.
Yet Van Oostendorp’s brief neither quotes nor describes the
rejected instruction. Nor does Van Oostendorp quote or describe
the language the court added to the elements instruction for the
express purpose of presenting the jury with an alternative
description of the mistake defense Van Oostendorp had offered.
Instead, Van Oostendorp has simply attached a number of jury
instructions to the brief. But these are not labeled or referred to
in the text of the brief and we are not told which of these
instructions were given and which rejected. More importantly,
Van Oostendorp has not compared or contrasted the instruction
he proposed with the one the trial court gave to the jury as an
alternative.

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 State v. Van Oostendorp

¶41 “Failure to give [a] requested jury instruction[] constitutes
reversible error only if [its] omission tends to mislead the jury to
the prejudice of the complaining party or insufficiently or
erroneously advises the jury on the law.” State v. Stringham, 2001
UT App 13, ¶ 17, 17 P.3d 1153 (citation and internal quotation
marks omitted). Thus, where the trial court adds language to a
jury instruction to accommodate the theory of the case embodied
in the defense’s proffered jury instruction, and the defendant
claims on appeal that the added language failed to protect his
rights, we expect the defendant’s opening brief to identify the
language at issue and explain its deficiencies. And because Van
Oostendorp’s brief does not, he has not persuaded us that a
reversible error occurred.4 See id.

CONCLUSION

¶42 We conclude that Victim was competent to testify at trial
and that there was therefore sufficient evidence for a jury to
convict. Further, Van Oostendorp has not persuaded us that the

4. Van Oostendorp does not acknowledge the trial court’s
additional jury instruction language until his reply brief, and he
does so then only after the State argued that the failure to do so
in his opening brief was a basis for affirmance. See Allen v. Friel,
2008 UT 56, ¶ 8, 194 P.3d 903 (“It is well settled that
[arguments] . . . that were not presented in the opening brief are
considered waived and will not be considered by the appellate
court.” (citation and internal quotation marks omitted)). And in
his reply, Van Oostendorp finds fault only with the court’s
inclusion of the word “honestly” in the phrase “honestly and
reasonably believed.” We therefore do not reach the issue of
whether the trial court’s added language was a correct statement
of the law.

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 State v. Van Oostendorp

trial court erred in admitting evidence of prior bad acts or that
the jury instructions violated his rights. Affirmed.

VOROS, Judge (concurring):

¶43 I concur in the opinion of the court. I write separately
only to emphasize what I believe to be the limited role of the so-
called Shickles factors in rule 403 analysis.

¶44 Our supreme court has clarified that Utah courts are
“bound by the text of rule 403.” State v. Lucero, 2014 UT 15, ¶ 32,
328 P.3d 841, abrogated on other grounds by State v. Thornton, 2017
UT 9, 391 P.3d 1016. In contrast, “the Shickles factors were not
rooted in the text of the operative rule; they were ‘drawn from’
the McCormick on Evidence treatise.’” State v. Rushton, 2017 UT
21, ¶ 53 n.2 (Lee, Associate Chief J., concurring in the judgment)
(quoting Lucero, 2014 UT 15, ¶ 32). “And in time [our supreme
court was] forced to repudiate the Shickles factors—identifying
unforeseen consequences arising from an attempt to formulate
factors not rooted in the text of the governing law, and backing
away from the Shickles factors and pointing the courts back to
rule 403.” Id. Accordingly, “the Shickles factors should not limit
the considerations of a court when making a determination of
evidence’s admissibility under rule 403.” State v. Cuttler, 2015 UT
95, ¶ 18, 367 P.3d 981. Indeed, the supreme court has now ruled
that a district court abuses its discretion “by mechanically
applying the Shickles factors.” State v. Lowther, 2017 UT 24, ¶ 47.

¶45 However, our supreme court has also recently rejected
the idea “that the Shickles factors, taken individually, have no
place in a rule 403 analysis. It may very well be appropriate, for
example, for a district court to consider the similarities between
the crimes in assessing probative value.” Cuttler, 2015 UT 95,
¶ 19. Thus, “we focus our analysis on the text of rule 403 and
analyze only those Shickles factors that are relevant to the

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 State v. Van Oostendorp

circumstances of [the present] case.” State v. Reece, 2015 UT 45,
¶ 69, 349 P.3d 712.

¶46 But I see no legal relevance in whether a factor is found
on the Shickles list. All that matters is that it aids the court in
applying the law, i.e., the text of rule 403. One or more of the
Shickles factors may sometimes help, but the same can be said of
non-Shickles factors, such as “the potential of the evidence to
impress the jury in some irrational, but nevertheless indelible
way,” Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App.
2006) (citation and internal quotation marks omitted), and “the
extent to which admission of evidence will require trial within
trial,” State v. Rollins, 760 S.E.2d 529, 551 (W. Va. 2014) (citation
and internal quotation marks omitted). And of course our
supreme court has proscribed one Shickles factor, “the degree to
which the evidence probably will rouse the jury to
overmastering hostility.” See State v. Shickles, 760 P.2d 291, 296
(Utah 1988), abrogated by Cuttler, 2015 UT 95, ¶ 20 (holding that
“it is inappropriate for a court to consider the overmastering
hostility factor in a rule 403 analysis”). In short, whether a factor
is useful to a court in conducting a 403 balancing has everything
to do with relevance under the circumstances and nothing to do
with appearing on the Shickles list.

¶47 I believe this is our supreme court’s approach. But it
appears to me that this nuanced approach may not be sufficient
to drive a stake into the heart of Shickles. Perhaps the time has
come to hold that any reference to the Shickles factors constitutes
reversible error.

¶48 I also add this observation: when a relationship marked
by bullying, threats, or violence culminates in an accusation of
sexual assault answered by a claim of consent, evidence of that
history of abuse will almost always satisfy rules 402, 403, and
404(b). It will almost always be highly probative and almost
never be unfairly prejudicial. If our rules of evidence are to reflect
the real world, they must recognize that the question of consent

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 State v. Van Oostendorp

must be viewed through the lens of the couple’s entire
relationship. And just as a history of consensual sex is relevant to
whether a sexual partner consented on a particular occasion, see
Utah R. Evid. 412(b)(2), so also is a history of abuse, see State v.
Diak, No. 98-2004-CR, 1999 WL 19306, at *5 (Wis. Ct. App. Jan.
20, 1999) (holding the couple’s history of abuse relevant to
whether the victim consented to sex). A jury could reasonably
conclude that a history of violence elevates an otherwise
noncoercive demand for sex to the level of a “threat[] to retaliate
in the immediate future against the victim” if she refuses to
comply. See Utah Code Ann. § 76-5-406(4)(a)(i) (LexisNexis
Supp. 2016).

¶49 Constitutional law provides a useful analogue. “When a
prosecutor seeks to rely upon consent to justify the lawfulness of
a search, he has the burden of proving that the consent was, in
fact, freely and voluntarily given.” Bumper v. North Carolina, 391
U.S. 543, 548 (1968). Otherwise stated, “Is the confession the
product of an essentially free and unconstrained choice by its
maker?” Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973). This
question is “to be determined from the totality of all the
circumstances.” Id. at 223. I see no reason why a less robust
version of consent should apply in the context of sex crimes.5

5. I am of course not suggesting that a criminal defendant bears
any burden of proving consent in a criminal prosecution; I am
suggesting only that the “consent”—whose absence the
prosecutor must prove beyond a reasonable doubt—means
consent that was the product of a free and unconstrained choice
under a totality of the circumstances, including the couple’s
history.

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