State v. Barney

2018 UT App 159

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
PHILLIP VIRGILE BARNEY,
Appellant.

Opinion
No. 20160620-CA
Filed August 23, 2018

Seventh District Court, Price Department
The Honorable George M. Harmond
No. 151700227

Don M. Torgerson, Attorney for Appellant
Sean D. Reyes and Jeffrey D. Mann, Attorneys
for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.

MORTENSEN, Judge:

¶1 Phillip Virgile Barney held Victim hostage overnight in a
pickup truck on a lonely country road, beating Victim
and holding a knife to her throat in the process. During
the ordeal, Barney told Victim that he intended to continue to
torture her and eventually kill her. Based on this incident,
a jury convicted Barney of aggravated kidnapping,
aggravated assault, and violation of a protective order. Barney
claims his convictions should be reversed because the trial court
allowed evidence of other acts of abuse that Barney had
perpetrated against Victim. We reject Barney’s claims and affirm.
 State v. Barney

BACKGROUND

¶2 Victim walked alone one evening searching for her
teenage daughter. Despite an active protective order barring
contact, Barney approached Victim in his truck and offered a
ride to her daughter’s location. Although Victim and Barney had
been arguing earlier that day, Victim got into his truck.

¶3 As soon as Victim got in, Barney grabbed her hair and
slammed her head against the center console, pinning her neck
under his forearm. Barney sped away, punching and kneeing
Victim in the face while threatening to kill her. He then drove
until the truck ran out of gas on a rural country road.

¶4 Stranded there, Barney pulled out a large knife and held it
to Victim’s throat. Barney threatened to torture and kill Victim,
saying he would force a stone down her throat to choke her, and
that when she was almost dead he would slit her throat and fill
her body with rocks. At one point, Barney gave the knife to
Victim and told her to kill herself, which she considered doing.
Barney eventually fell asleep, but Victim remained in the truck
with him until morning.

¶5 After sunrise, Barney left to find gas. He found a local
rancher, who brought gas to the stranded truck. Victim did not
speak with the rancher or flee while Barney was gone. Barney
then brought Victim home. Victim did not report this incident
(the Kidnapping Incident) to the police until roughly two
months later.

¶6 The State charged Barney for the Kidnapping Incident.
Before trial, the State moved to admit evidence of other acts of
abuse that Barney had committed against Victim. Those acts
included (1) a prior incident where, because Victim refused to
get in his truck, Barney drove his truck at a high speed toward
Victim, narrowly missing her (the Vehicular Assault Incident);
(2) a prior incident where Barney, upset that Victim was not

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responding to his attempts to contact her, found Victim
babysitting at a friend’s house, pushed his way into the home,
and pinned her by the neck against a wall with his forearm while
she was holding a child (the Strangulation Incident); (3) a prior
incident where Barney sent letters to Victim while he was in jail,
violating a protective order (the Protective Order Incident); and
(4) an incident that occurred after the Kidnapping Incident, but
before the Kidnapping Incident was reported, where Barney
began speeding with Victim in the truck, grabbing her by the
head, and when he refused to stop, Victim tried to jump out of
the truck only to have Barney pull her back in (the Moving
Vehicle Incident). The trial court initially excluded all of this
evidence, but it did not foreclose the admission of the evidence
on rebuttal “if [Victim is] challenged or if there’s evidence that
she should have done something and didn’t.”

¶7 During trial, Barney’s defense counsel questioned Victim
about why she did not try to escape and why she waited so long
to report the Kidnapping Incident to the police. To rebut those
concerns, the State again moved to admit the other-acts
evidence. The trial court admitted the Vehicular Assault,
Strangulation, and Protective Order Incidents for the
noncharacter purpose of explaining Victim’s state of mind: her
fear of Barney. The trial court also allowed evidence of the
Moving Vehicle Incident to show Barney’s “modus operandi,”
and Victim’s “reaction and her fear.”

¶8 A jury convicted Barney of aggravated kidnapping,
aggravated assault, and violation of a protective order. Barney
appeals, challenging the trial court’s decision to allow the other-
acts evidence.

ISSUE AND STANDARD OF REVIEW

¶9 Barney contends that the trial court erred in admitting the
four instances of other-acts evidence. Challenges to a trial court’s

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 State v. Barney

ruling on 404(b) evidence are reviewed for abuse of discretion.
State v. Thornton, 2017 UT 9, ¶ 56, 391 P.3d 1016. That is,
appellate courts “simply assess whether the district judge made
an error in admitting or excluding the evidence in question.” Id.
¶ 53 (emphasis omitted). “[A]ppellate review of evidentiary
rulings is on the decision made at trial, not the process by which
that decision is reached.” Id. ¶ 3.

ANALYSIS

¶10 Barney contends that the trial court erred in admitting
evidence of the Vehicular Assault, Strangulation, Protective
Order, and Moving Vehicle Incidents. Specifically, Barney
argues that the other-acts evidence was not admitted for an
appropriate noncharacter purpose, the evidence was not
relevant, and the evidence was prejudicial. We disagree on all
points.

¶11 Rule 404(b) of the Utah Rules of Evidence sets forth the
standards governing a trial court’s decision to admit or exclude
evidence of crimes, wrongs, or other acts. The rule prohibits the
use of this evidence “to prove a person’s character in order to
show that on a particular occasion the person acted in
conformity with the character.” Utah R. Evid. 404(b)(1). Evidence
of crimes, wrongs, or other acts is admissible, however, “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). As stated, in reviewing a trial
court’s ruling on 404(b) evidence, appellate courts “simply assess
whether the district judge made an error in admitting or
excluding the evidence in question.” State v. Thornton, 2017 UT 9,
¶ 53, 391 P.3d 1016 (emphasis omitted).

¶12 We first address Barney’s argument that there is no
plausible, avowed purpose for the evidence beyond showing his
propensity for bad behavior. Second, we examine whether the

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evidence was relevant. Third, we analyze whether the evidence
was prejudicial.

I. Plausible, Avowed Noncharacter Purpose

¶13 “The threshold 404(b) question is whether the evidence
has a plausible, avowed purpose beyond the propensity purpose
that the rule deems improper.” State v. Thornton, 2017 UT 9, ¶ 58,
391 P.3d 1016 (emphasis omitted). A trial court might conclude
that the offered noncharacter purpose is a ruse. “Short of that,
however, the court’s job under rule 404(b) is not to balance or
weigh competing (proper and improper) inferences.” Id. ¶ 59. 1
Here, the trial court concluded that the other-acts evidence had
been offered for a proper purpose. Specifically, the trial court
allowed evidence of the Vehicular Assault, Strangulation, and
Protective Order Incidents for the noncharacter purpose of
explaining Victim’s state of mind—her fear of Barney. The trial
court allowed evidence of the Moving Vehicle Incident to show
Barney’s “modus operandi” and Victim’s “reaction and her
fear.” In this context, fear is synonymous with Victim’s state of
mind, a proper noncharacter purpose.

¶14 Our supreme court has clearly held that other-acts
evidence showing a victim’s state of mind can qualify as a

1. Earlier decisions from the Utah Supreme Court required that,
in situations where other-acts evidence sustains both proper and
improper inferences, courts “should balance [proper and
improper inferences] against each other under rule 403,
excluding the bad acts evidence if its tendency to sustain a
proper inference is outweighed by its propensity for an
improper inference or for jury confusion about its real purpose.”
See State v. Verde, 2012 UT 60, ¶ 18, 296 P.3d 673, abrogated by
State v. Thornton, 2017 UT 9, 391 P.3d 1016. Thus, our supreme
court in Thornton altered its previous directive.

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 State v. Barney

noncharacter purpose. See State v. Bates, 784 P.2d 1126, 1127
(Utah 1989) (explaining that evidence was admissible where it
was “elicited to describe the state of mind of the victim” to
explain why the victim “was afraid of defendant” and thus “did
not report the incidents sooner”); see also State v. Harter, 2007 UT
App 5, ¶ 28, 155 P.3d 116 (citing Bates and holding that the
victim’s “state of mind—her fear of Defendant” was a “proper,
noncharacter purpose”). Recently, our supreme court held in a
child sex abuse case that rule 404(b) evidence was admissible
where the evidence “presented a narrative of relevance to the
prosecution’s case—to demonstrating [a defendant’s] position of
power in the home, to explaining why he had such easy access to
[a victim], and to suggesting why [a victim] may have waited to
come forward with accusations against [the defendant].”
Thornton, 2017 UT 9, ¶ 57.

¶15 These holdings support the purpose for which the 404(b)
evidence was admitted in this case—to show Victim’s state of
mind as to why she did not try to escape or quickly report the
Kidnapping Incident. After the trial court initially excluded the
other-acts evidence, Barney’s counsel raised doubts about
Victim’s allegations by highlighting her reluctance to escape and
her delay in reporting the Kidnapping Incident to the police. The
Vehicular Assault Incident demonstrates an instance where
Victim tried to resist Barney’s attempt to convince her to ride in
his truck and was met with escalated violence, explaining why
Victim was unwilling to resist the Kidnapping Incident. The
Strangulation Incident helps reveal why Victim would not want
to run from or avoid Barney because avoiding him in the past
had resulted in him violently attacking her. The Protective Order
Incident helps show why Victim waited to report the
Kidnapping Incident because Barney had previously ignored
protective intervention. The Moving Vehicle Incident illustrates
Barney’s continued violence toward Victim, explaining why she
was afraid to report the Kidnapping Incident right away. Thus,
as in Bates, Harter, and Thornton, the other-acts evidence

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plausibly goes to the avowed noncharacter purpose of
explaining Victim’s state of mind and why she acted the way she
did.

¶16 We therefore conclude that the Vehicular Assault,
Strangulation, Protective Order, and Moving Vehicle Incidents
were admitted for an appropriate noncharacter purpose. 2
Specifically, we conclude that the other-acts evidence was

2. Barney takes issue with the fact that the Moving
Vehicle Incident occurred after the Kidnapping Incident for
which he was charged. It is true that rule 404(b) evidence is
often described as evidence of “prior acts.” See, e.g., State v.
Lopez, 2018 UT 5, ¶ 38, 417 P.3d 116 (“We recognize an
exception to that rule where prior acts are relevant, offered for a
genuine, noncharacter purpose, and not unduly prejudicial.”
(cleaned up)). Rule 404(b) itself, however, makes no reference
to “prior” crimes, wrongs, or acts, but refers only to “other”
crimes, wrongs, or acts. Utah R. Evid. 404(b). Many courts
have recognized that other crimes, wrongs, or acts can be
relevant, even if those acts occurred after the charged
conduct. See United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir.
1995) (noting that the principles governing rule 404(b) other-
acts evidence “are the same whether the conduct occurs
before or after the offense charged” (cleaned up)); see also Ashe v.
Jones, No. 98-1324, 2000 WL 263342, at *5 (6th Cir. Feb. 29, 2000);
United States v. Morsley, 64 F.3d 907, 911 (4th Cir. 1995);
United States v. Brown, 923 F.2d 109, 111 (8th Cir. 1991); Michigan
v. Dreyer, 442 N.W.2d 764, 765 (Mich. Ct. App. 1989); Washington
v. Brown, 940 P.2d 546, 576 (Wash. 1997) (en banc); Washington
v. Stuivenga, No. 52024-5-I, 2005 WL 487551, at *1 (Wash. Ct.
App. Feb. 22, 2005) (per curiam). Here, the Moving Vehicle
Incident occurred before Victim reported the Kidnapping
Incident and was relevant to explain why Victim waited so long
to report the crime.

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properly admitted for the purpose of showing Victim’s state of
mind. 3

II. Relevance

¶17 Having determined that the other-acts evidence was
admitted for a proper noncharacter purpose, we now examine
Barney’s challenge to the relevance of that evidence. “Evidence
is relevant if . . . it has any tendency to make a fact more or less
probable than it would be without the evidence” and “the fact is
of consequence in determining the action.” Utah R. Evid. 401.
“Irrelevant evidence is not admissible.” Id. R. 402. “The standard
for determining the relevancy of the evidence is very low, and
even evidence with the slightest probative value is relevant.”
State v. Smedley, 2003 UT App 79, ¶ 15, 67 P.3d 1005 (cleaned up).

¶18 The Vehicular Assault, Strangulation, Protective
Order, and Moving Vehicle Incidents were relevant to
show Victim’s state of mind and why she did not flee when
she had the chance or report the incident immediately.
Barney’s defense counsel questioned Victim on why she did
not run, why she did not try to get help, and why she did
not immediately report the incident. Thus, Barney
brought Victim’s conduct during and after the kidnapping
under scrutiny. Victim answered those questions by
responding that she believed something bad would happen
if she tried to escape or if she reported the kidnapping.
Because these four instances of other-acts tend to make it more
probable that she believed something bad would happen if she

3. Because we conclude that the evidence was properly admitted
for the purpose of showing Victim’s state of mind, we do not
analyze the court’s decision to allow the Moving Vehicle
Incident for the purpose of showing Barney’s modus operandi.
See State v. Holbert, 2002 UT App 426, ¶ 34 n.5, 61 P.3d 291.

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tried to escape or if she reported the crime, the evidence is
relevant.

¶19 We thus see no abuse of discretion in the trial court’s
conclusion that the other-acts evidence is relevant.

III. Prejudice

¶20 Finally, we examine Barney’s contention that the other-
acts evidence was unduly prejudicial under rule 403 of the Utah
Rules of Evidence. 4 That rule states that “[t]he court may 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. “Unfair prejudice results only
where the evidence has an undue tendency to suggest decision
upon an improper basis.” State v. Miranda, 2017 UT App 203,
¶ 38, 407 P.3d 1033 (cleaned up).

¶21 Evidence of the Vehicular Assault, Strangulation,
Protective Order, and Moving Vehicle Incidents was highly
probative of Victim’s state of mind and ultimately her
motivation for not running from Barney or immediately
reporting the Kidnapping Incident. The jury may well have
questioned Victim’s apparent hesitance to escape or her delay in

4. Appellant argues in his brief: “Although strict application of
[the Shickles] factors is no longer required under Verde and
Thornton, they are useful to ensure that the unfair prejudice does
not outweigh the probative value of prior-bad-act evidence.”
Tethering the analysis as Barney suggests may be error. Recently
our supreme court stated: “It is always error . . . for a court to
center its analysis on the Shickles factors, to consider itself
obligated to use a particular factor or factors, or to rely inflexibly
upon each Shickles factor.” State v. Ring, 2018 UT 19, ¶ 23.

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reporting the crime. Because her fear of Barney was the primary
reason for her delay in reporting, the other-acts evidence carried
high probative value. To be sure, the presentation of the other-
acts evidence carries with it some prejudicial effect. However,
the danger that the evidence of these other acts would unfairly
prejudice Barney was ultimately mitigated by other factors.

¶22 First, the Vehicle Assault, Strangulation, and Protective
Order Incidents were “distinct from the crime he was charged
with,” mitigating any risk of prejudice. See State v. Thornton, 2017
UT 9, ¶ 63, 391 P.3d 1016. The similarity between charged
conduct and the Moving Vehicle Incident potentially increases
the danger of the jury conflating the incidents; however, the
protracted nature of the charged conduct—where Barney held
Victim for an entire evening while stranded on a rural road—is
ultimately distinct enough that any danger of confusion over
what evidence applied to what incident is minimal.

¶23 Second, the acts for which Defendant was charged—
driving erratically while holding Victim’s head against the center
console and punching and kneeing her in the face,
driving Victim to a remote area where the truck ran out of gas
and threatening her with a knife, promising painful and
violent death for several hours—were more egregious than
the other-acts evidence, and thus the jury would not
likely improperly base its decision on a desire to
punish Defendant for the uncharged conduct. See State v.
Reece, 2015 UT 45, ¶ 71, 349 P.3d 712 (explaining that the
conduct that a defendant confessed to was more severe than
the other-acts evidence admitted at trial, which weighed
against concluding that the defendant was unduly prejudiced). 5

5. The court in Reece examined undue prejudice under the
standard of “overmastering hostility,” see State v. Reece, 2015 UT
(continued…)

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 State v. Barney

¶24 Third, the trial court provided a limiting instruction
prohibiting the jury from convicting Barney based on the other-
acts evidence. This instruction further mitigated the risk of any
unfair prejudice. See State v. Trujillo, 2017 UT App 116, ¶ 22, 400
P.3d 1213.

¶25 Under these circumstances, we conclude that the trial
court was well within its discretion in deciding that the
probative value of this evidence was not substantially
outweighed by the risk of unfair prejudice.

CONCLUSION

¶26 The trial court did not err in admitting the other-acts
evidence. The evidence was admitted for a proper noncharacter
purpose, was relevant, and was not unduly prejudicial.

¶27 Affirmed.

(…continued)
45, ¶ 71, 349 P.3d 712, which has since been renounced by the
Utah Supreme Court, see State v. Cuttler, 2015 UT 95, ¶ 20, 367
P.3d 981. We rely on Reece to demonstrate only that the severity
of the charged conduct, weighed against the severity of the
other-acts evidence, is an appropriate consideration when
analyzing undue prejudice under rule 403. We do not rely on the
“overmastering hostility” standard applied in Reece.

20160620-CA 11 2018 UT App 159