State v. Balfour

2018 UT App 79

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
OZWALD BALFOUR,
Appellant.

Opinion
No. 20141119-CA
Filed April 26, 2018

Third District Court, Salt Lake Department
The Honorable Robin W. Reese
No. 111905240

Ronald Fujino and Marshall Thompson, Attorneys
for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN and RYAN M. HARRIS concurred.

ORME, Judge:

¶1 Appellant Ozwald Balfour (Defendant) was convicted of
the forcible sodomy of a minor. 1 He seeks a new trial, arguing
that he was denied the effective assistance of counsel, that the
trial court improperly admitted evidence of other bad acts

1. Defendant has previously been before this court. In 2005, the
State charged Defendant with three counts of forcible sexual
abuse and one count of attempted forcible sexual abuse. That
prosecution reached this court on interlocutory review in State v.
Balfour, 2008 UT App 410, 198 P.3d 471.
 State v. Balfour

against him, and that the court violated his constitutional due
process rights at trial by excluding his witnesses. We affirm.

BACKGROUND

The Victim

¶2 In early 2005, a seventeen-year-old girl (Victim) was
making her way to a bus stop when Defendant approached her
and exclaimed, “You’re perfect.” After explaining that he
represented a talent agency, he asked whether she might be
interested in a modeling career. Victim was thrilled by the
prospect. Upon Defendant’s request, she immediately agreed to
enter his car and accompany him to his office.

¶3 Once they arrived, Defendant sat her down and informed
her that there are “things that models . . . and famous people
have to do to get where they are today.” For instance, he told her
that she would need to have her picture taken, “with and
without clothing.” When Victim expressed concern that her
parents might not approve, he urged her not to worry, saying he
would smooth things over with them. He then asked her to
return to his office in two days for her first photo shoot.

¶4 When Victim returned two days later, Defendant
introduced her to a photographer, who proceeded to take “some
face poses.” But after a short time, the photographer finished
shooting, packed up, and left Victim alone with Defendant.
Defendant then informed Victim that “he needed to take his own
pictures” of her. Growing “nervous,” she told Defendant that
she needed to leave. Defendant insisted that she stay, telling her
that “it was okay” and that there were “things” that aspiring
models “need to do to get to the places they want to get to.” He
then “pulled out some pictures of a young girl” who he claimed
had made it as a model with his help, and who he said was now
“in Paris.” Victim acquiesced.

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 State v. Balfour

¶5 Defendant then laid out a beach towel, turned on music,
and retrieved some baby oil. Although he had wanted her “all
the way undressed,” Victim refused to remove her bra and
underwear. Defendant began rubbing the oil on Victim’s legs,
beginning near her ankles but inching gradually toward her
pelvis. Feeling “nervous and disgusted,” Victim again stated that
she wished to leave, but Defendant “kept rubbing and . . . telling
[her] that it’s going to be okay.” After moving his hands “closer
and closer” to Victim’s genitals, he suddenly “pulled back [her]
underwear” and placed his tongue on her vagina.

¶6 Victim immediately “jumped up,” “pushed [Defendant]
off” of her, and demanded that she be allowed to leave.
Defendant attempted to calm her, reiterating that “there’s things
you got to do” to make it as a model, but Victim remained firm.
Seeing that she would go no further, he relented, and Victim
headed for the door. As she did, Defendant told her that there
was no “need to talk to anybody” about their meeting or to “tell
anyone” what he had done.

Defendant’s Other Bad Acts

¶7 Lamentably, Victim’s is not the only traumatic story
relevant to the proceedings below. Three other women also
appeared at Defendant’s trial, and each testified that, between
late January and early February of 2005, Defendant subjected her
to some form of abuse. Because Defendant challenges the
propriety of the trial court’s decision to allow testimony from
these three witnesses, we must explain the substance of their
testimony in some detail.

¶8 R.G. was nineteen years old when Defendant stopped her
in a grocery store aisle and began asking her questions about
herself. She had observed Defendant “just kind of wandering”
the aisles, noting that he carried neither a grocery basket nor any
items from the store shelves. Then, turning a corner, she found
that he was facing her “head on.” Defendant began peppering
her with questions about her private life, such as whether she
was in school and what activities she enjoyed. Upon learning she

20141119-CA 3 2018 UT App 79
 State v. Balfour

was involved in a youth-mentoring program, Defendant
informed her that he was scouting talent for a “kids program
that was on TV” and asked whether she would be interested in
working with him. Excited at the thought of being on television,
R.G. answered that she would be interested, whereupon
Defendant insisted that they proceed directly to his office.

¶9 Upon arriving at Defendant’s office, his receptionist
handed R.G. an application form, and as she sat down to
complete it, she observed “some posters on the wall of movies.”
Soon after she had sat down to fill out her form, Defendant
interrupted her and asked that she join him in his office.
Immediately after closing the door, Defendant began making
“inappropriate, strange comments,” and he asked R.G. to take
off her jacket. When she refused, he grabbed onto her hips,
pulled her close to him, and then lifted up her top to expose her
bra. R.G. left right away, “in shock.”

¶10 On another occasion, Defendant invited R.O. and M.L. to
his office for an interview. When they arrived, Defendant began
by asking R.O. to follow him into a back room of the office. Once
they were alone, Defendant asked R.O. to show him “how [she]
would act in a love scene.” When she refused and stated she was
“happily married,” Defendant “grabbed [her] breasts.” R.O.
quickly pushed him away and, after struggling with the door for
a moment, was able to leave the room.

¶11 M.L. witnessed R.O. emerge from the back room and
head “right out the door” without saying a word. Defendant
appeared a few moments later and asked M.L. to follow him
back into the room. Once the door was shut, and apparently
locked, Defendant turned to M.L. and, without “say[ing]
anything,” began “lifting [her] shirt and grabbing [her] breasts.”
He told her that she “had two minutes to take him” or “prove to
him,” and, taking hold of M.L.’s arm, he “put [her hand] on his
crotch.” Screaming at Defendant to “knock it off,” M.L. then
twisted away from Defendant and began “banging on the door.”

20141119-CA 4 2018 UT App 79
 State v. Balfour

At that point, Defendant opened the door and allowed her to
leave.

The Proceedings Below

¶12 R.G., R.O., and M.L. immediately reported their
encounters with Defendant to the police and, within months, the
State charged Defendant with multiple counts of forcible sexual
abuse. Victim, however, did not report Defendant’s conduct
until nearly two years later, in 2007. The prosecutor then lost
contact with her, apparently because she changed residences
several times. Finally, in 2010, a detective managed to locate
Victim, and a few months later, the State charged Defendant
with forcible sodomy. 2 In the meantime, the prosecution against
Defendant for his conduct toward R.G., R.O., and M.L. ended in
a plea bargain, with Defendant pleading no contest to three
counts of sexual battery. He was placed on probation.

¶13 Soon after the State filed its forcible sodomy charge
concerning Victim, the trial court appointed an attorney
(Attorney A) to serve as defense counsel. Upon his appointment,
Attorney A moved to dismiss the charge against Victim because
of the prosecutor’s alleged breach of Defendant’s plea agreement
in the earlier case. The State, he argued, had agreed not to bring
the instant charge in exchange for Defendant’s no-contest pleas

2. No statute of limitations currently applies to the crime of
forcible sodomy. Utah Code Ann. § 76-1-301(2)(l) (LexisNexis
2017). While prior to 2008 the crime had been subject to a
limitations statute, see id. § 76-1-302(2)(c) (Supp. 2005), the
Legislature abrogated that statute before the limitations period
expired on this prosecution. Therefore, the current rule applies.
See State v. Lusk, 2001 UT 102, ¶ 26, 37 P.3d 1103 (“[A] statutory
amendment enlarging a statute of limitations will extend the
limitations period applicable to a crime already committed . . . if
the amendment becomes effective before the previously
applicable statute of limitations has run[.]”).

20141119-CA 5 2018 UT App 79
 State v. Balfour

in the previous prosecution. The court denied the motion,
observing that no such arrangement was mentioned in either the
written plea agreement or the plea colloquy transcript.
Defendant refused to accept the court’s decision, and he and
Attorney A reached an impasse over whether to file an
interlocutory appeal of the order. Their disagreement appears to
have been the catalyst for Attorney A’s withdrawal as defense
counsel.

¶14 Upon Attorney A’s departure, another attorney
(Attorney B) entered an appearance as counsel for Defendant. At
his first hearing, the trial court directed Attorney B to consider a
motion Attorney A had filed just before withdrawing and decide
whether it could be “renew[ed]” and argued in “good faith.” The
motion, which Attorney A had not briefed, accused the State of
violating Defendant’s due process rights by maliciously delaying
the institution of its forcible sodomy charge to gain a tactical
advantage in the case. Attorney B did not file a memorandum in
support of the motion prior to the court’s next scheduled
hearing, nor did he attempt to defend it at oral argument.
Instead, he devoted his time at the hearing to opposing the
State’s notice of its intent to introduce rule 404(b) evidence at
trial. 3 Accordingly, the court did not address the merits of the
unbriefed motion.

¶15 Meanwhile, tensions once again began to rise between
Defendant and his counsel. Citing his frustration with Attorney
B’s refusal to file the motions or advance the legal arguments he
thought were best, Defendant began filing his own motions with

3. Rule 404(b) of the Utah Rules of Evidence permits “[e]vidence
of a crime, wrong, or other act” to be admitted in limited
circumstances. Utah R. Evid. 404(b)(1)–(2). The rule specifies
that, “[o]n request by a defendant in a criminal case, the
prosecutor must . . . provide reasonable notice of the general
nature of any such evidence that the prosecutor intends to offer
at trial.” Id. R. 404(b)(2)(A).

20141119-CA 6 2018 UT App 79
 State v. Balfour

the court. At a hearing following one such motion—which
asserted, among other things, “Prosecutorial Malfeasants”—the
court cautioned Defendant that it would not consider any pro se
motions filed while he was represented by counsel, and it asked
whether Defendant wished to represent himself instead.
Defendant responded that he did not.

¶16 But Defendant continued to clash with Attorney B over
how to proceed with his defense. Attorney B eventually
withdrew, as did his replacement, Attorney C, after a “shouting
match” in which Defendant demanded that Attorney C “do [his]
damn job.” Attorney D entered an appearance following
Attorney C’s withdrawal, but she likewise found Defendant too
difficult to work with. When Defendant petitioned the court to
remove her, Attorney D explained that Defendant had pressured
her to file several frivolous motions, including a motion to
recuse the judge, and to mount a “full-scale media campaign”
against the Salt Lake County District Attorney. Attorney D
opined that, given his temperament, “probably no one can work
with [Defendant].”

¶17 Following Attorney D’s withdrawal, Defendant resolved
to represent himself for the remainder of the case, with the
assistance of standby counsel. Attorney E appeared on
Defendant’s behalf and informed the court of Defendant’s
decision. After Defendant acknowledged to the court that he
understood the dangers inherent in self-representation, the court
granted his request, and it further permitted Attorney E to
remain on the case as standby counsel. Defendant then
reaffirmed his desire to represent himself on several subsequent
occasions, saying, for instance, that it would be “totally
unacceptable” for Attorney E to take control of the case, and
later introducing himself to the jury as “lead counsel.” Before
trial, Defendant filed a motion to dismiss that contained several
grounds for dismissal, and he also made an oral motion to
dismiss for lack of jurisdiction. Significantly, he did not raise the
malicious-delay-of-prosecution argument Attorney B had
abandoned earlier in the case.

20141119-CA 7 2018 UT App 79
 State v. Balfour

¶18 Defendant’s case proceeded to trial. Defendant having
been given an opportunity to oppose the use of rule 404(b)
evidence at an earlier hearing, the State successfully secured
admission of the testimony of R.G., R.O., and M.L. during its
case-in-chief. When the State rested, Defendant sought to put on
his own witnesses. Although he had provided the prosecutor
with a witness list—which included, among others, a judge, the
Salt Lake County District Attorney, and the Utah Attorney
General—Defendant had failed to provide a summary of his
witnesses’ proposed testimony or an explanation of why their
testimony was relevant. Because Defendant’s omissions were in
contravention of two separate court orders, the court excluded
the witnesses as a discovery sanction.

¶19 At trial, the jury found Defendant guilty of forcible
sodomy, a first-degree felony. The court imposed a suspended
prison sentence of five years to life and ordered a term of
probation, pursuant to which Defendant would be required to
serve one year in jail and complete 150 hours of community
service. 4 Defendant appeals.

ISSUES AND STANDARDS OF REVIEW

¶20 Defendant raises three issues on appeal. 5 First, he argues
that his second attorney—Attorney B—deprived him of his right

4. His probation was later revoked, and Defendant began
serving his prison sentence. His appeal from the revocation of
his probation is the subject of a separate appeal pending in this
court, State v. Balfour, case no. 20160821-CA.

5. Three other issues are identified, in a single sentence each, at
the end of Defendant’s brief. The brief recites that the issues are
included at the request of Defendant, and on the authority of
Anders v. California, 386 U.S. 738 (1967), and State v. Clayton, 639
P.2d 168 (Utah 1981). Those cases govern the procedure to be
followed when appellate counsel sees no meritorious issue for
(continued…)

20141119-CA 8 2018 UT App 79
 State v. Balfour

to the effective assistance of counsel. When an ineffective
assistance of counsel claim is first raised on appeal, “there is no
lower court ruling to review and we must determine whether
the defendant was deprived of the effective assistance of counsel
as a matter of law.” State v. Tirado, 2017 UT App 31, ¶ 10, 392
P.3d 926.

¶21 Second, Defendant argues that the trial court erred in
admitting the testimony of R.G., R.O., and M.L. “Appellate
courts review a trial court’s decision to admit character evidence
and prior bad acts under an abuse of discretion standard.” State
v. Vu, 2017 UT App 179, ¶ 9, 405 P.3d 879 (citation and internal
quotation marks omitted).

¶22 Finally, Defendant argues that the court deprived him of
his constitutional right to due process by excluding the
testimony of his proposed witnesses at trial, thus effectively
precluding him from presenting a “meaningful defense.” Our
Supreme Court has recently stated that such issues present an
appellate court with a mixed question of fact and law. Cf. State v.
Mohamud, 2017 UT 23, ¶ 10, 395 P.3d 133 (addressing a
defendant’s claim that loss of potentially exculpatory evidence
deprived him of due process). “We review the legal question
involved—whether due process was violated—for correctness.
But the underlying factual determinations on which this legal
question is based will not be set aside unless clearly erroneous.”
Id. (citations and internal quotation marks omitted). The trial
court’s factual determinations led it to conclude that discovery
sanctions were appropriate, and we review sanctions decisions
for abuse of discretion. See State v. Tiliaia, 2006 UT App 474, ¶ 7,
153 P.3d 757.

(…continued)
appeal and seeks to withdraw. See Clayton, 639 P.2d at 169–70.
This is not such a case, and accordingly we do not consider these
unbriefed issues.

20141119-CA 9 2018 UT App 79
 State v. Balfour

ANALYSIS

I. Ineffective Assistance of Counsel

¶23 Defendant argues that Attorney B deprived him of his
constitutional right to the effective assistance of counsel by
“fail[ing] to . . . investigate, brief, or argue” a motion that
Attorney A had filed prior to his withdrawal. In this motion,
Defendant contended that the State maliciously “delayed
prosecution” of the forcible sodomy charge in the present case,
violating his due process rights, and should have brought this
charge in its first prosecution against him. He insists that the
State made its decision “to gain a strategic advantage.”
Defendant concedes that this issue is unpreserved.

¶24 Ordinarily, “to preserve an issue for appeal, the issue
must be presented to the trial court in such a way that the trial
court has an opportunity to rule on that issue.” State v. Soules,
2012 UT App 238, ¶ 9, 286 P.3d 25 (citation and internal
quotation marks omitted). There are several exceptions to this
general rule, including claims of ineffective assistance of counsel
first raised by criminal defendants on appeal. State v. Allgood,
2017 UT App 92, ¶ 19, 400 P.3d 1088. This exception is warranted
because it would be unreasonable to expect trial counsel to bring
his or her own ineffectiveness to the attention of the trial court.
We conclude, however, that the exception does not apply to the
circumstances presented here.

¶25 After Defendant elected to represent himself, he had the
opportunity to assert the due process argument that Attorney B
had abandoned, but he failed to do so. Indeed, acting pro se,
Defendant filed his own motion to dismiss but declined to
include the due process argument among the various grounds
for dismissal. Because nothing prevented Defendant from
asserting this argument when he represented himself, he may

20141119-CA 10 2018 UT App 79
 State v. Balfour

not now complain about Attorney B’s failure to pursue it. 6 See
People v. Polk, 118 Cal. Rptr. 3d 876, 884–87 (Ct. App. 2010)
(holding that a defendant could not assert an ineffective
assistance of counsel claim for counsel’s failure to make a
Miranda objection at the defendant’s first trial where she
represented herself at her second trial and similarly failed to
make the objection). Cf. Faretta v. California, 422 U.S. 806, 834 n.46
(1975) (“[A] defendant who elects to represent himself cannot
thereafter complain that the quality of his own defense
amounted to a denial of ‘effective assistance of counsel.’”). For
these reasons, we hold that under the unique circumstances of
this case, Defendant may not avoid the preservation rule by
asserting his argument under the rubric of an ineffective
assistance claim. We therefore reject his claim without reaching
its merits.

II. Evidence of Prior Bad Acts

¶26 Defendant argues that the trial court erred in admitting
the testimony of R.G., R.O., and M.L. under rule 404(b) of the
Utah Rules of Evidence. We conclude that the court acted within
the scope of its sound discretion.

¶27 Rule 404(b) of the Utah Rules of Evidence provides that
“[e]vidence of a crime, wrong, or other act is not admissible to

6. Defendant’s pro se status does not exempt him from the duty
to raise his arguments with the trial court before asserting them
on appeal. “[E]ven though this court . . . is ‘understandably loath
to sanction [pro se litigants] for a procedural misstep here or
there,’ we cannot . . . ignore the requirements necessary to
preserve an issue for appeal.” Tolle v. Fenley, 2006 UT App 78,
¶ 70, 132 P.3d 63 (quoting Lundahl v. Quinn, 2003 UT 11, ¶ 4, 67
P.3d 1000). “Rather, ‘as a general rule, a party who represents
himself will be held to the same standard of knowledge and
practice as any qualified member of the bar.’” Id. (quoting
Lundahl, 2003 UT 11, ¶ 3).

20141119-CA 11 2018 UT App 79
 State v. Balfour

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). However, it further provides that “[t]his
evidence may be admissible for another purpose, such as
proving motive, opportunity, [or] intent.” Id. R. 404(b)(2).
Indeed, we have said that rule 404(b) is fundamentally “an
inclusionary rule,” State v. Kooyman, 2005 UT App 222, ¶ 26, 112
P.3d 1252 (citation and internal quotation marks omitted), and
evidence of prior bad acts “is only excluded where the sole
reason it is being offered is to prove bad character or to show
that a person acted in conformity with that character,” State v.
Nielsen, 2012 UT App 2, ¶ 11, 271 P.3d 817 (emphasis in original)
(citation and internal quotation marks omitted).

¶28 The Utah Supreme Court has held that bad acts evidence
is admissible if three requirements are met. “[T]he trial court
must first determine whether the bad acts evidence is being
offered for a proper, noncharacter purpose[.]” State v. Nelson-
Waggoner, 2000 UT 59, ¶ 18, 6 P.3d 1120. “Second, the court must
determine whether the bad acts evidence meets the requirements
of rule 402, which permits admission of only relevant evidence.”
Id. ¶ 19. “Finally, the trial court must determine whether the bad
acts evidence meets the requirements of rule 403[.]” Id. ¶ 20.

¶29 Defendant argues that the court erred in its consideration
of the first and third of these requirements when it admitted the
testimony of R.G., R.O., and M.L. 7 Beginning with the first

7. Defendant also argues that this testimony was irrelevant. See
Utah R. Evid. 401(a) (“Evidence is relevant if . . . it has any
tendency to make a fact [of consequence in determining the
action] more or less probable than it would be without the
evidence[.]”). In support of this claim, Defendant argues that the
court “found that the prior bad acts evidence was relevant for
many issues that were not material to the crime charged.”
Whether or not this is true, we agree with the trial court that the
(continued…)

20141119-CA 12 2018 UT App 79
 State v. Balfour

requirement, Defendant maintains that “[t]he testimony of the
women . . . did not serve a legitimate noncharacter purpose.” We
disagree.

¶30 During his opening statement at trial, Defendant took the
position that the evidence would show that Victim fabricated her
story about Defendant luring her into his office and sexually
abusing her. It was the prosecution’s need to rebut this defense
that the trial court found to be the “most persuasive reason” for
admitting the testimony of the other women. We, too, are
persuaded that this was a proper purpose for admitting the
evidence.

¶31 Rebutting a fabrication defense does not appear in the list
of permissible noncharacter purposes set out in rule 404(b). But
as we have said before, that list “is not exhaustive.” State v.
Pullman, 2013 UT App 168, ¶ 31, 306 P.3d 827. In any event, our
Supreme Court has expressly stated that under certain
circumstances, “prior bad acts can properly be used to rebut a
charge of fabrication.” State v. Verde, 2012 UT 60, ¶ 47, 296 P.3d
673, abrogated on other grounds by State v. Thornton, 2017 UT 9, 391
P.3d 1016. Adopting the reasoning offered by Justice Arabian on
the California Supreme Court, our high court explained that

“[w]hen one person claims rape, the unusual and
abnormal element of lying by the complaining
witness may be present. But when two (or more)
persons tell similar stories, the chances are reduced
that both are lying or that one is telling the truth
and the other is coincidentally telling a similar false
story.”

(…continued)
evidence was at least relevant to Defendant’s defense that Victim
fabricated her story.

20141119-CA 13 2018 UT App 79
 State v. Balfour

Id. ¶ 48 (en banc) (Arabian, J., concurring) (quoting People v.
Balcom, 867 P.2d 777, 787 (Cal. 1994)). Such was the trial court’s
reasoning here. Taken alone, Victim’s testimony might have
been vulnerable to a charge of fabrication. As “unusual and
abnormal” as it might be that Victim would falsely accuse
Defendant of sexual abuse, it strains credulity to suggest that
three other women would similarly accuse Defendant falsely.
The trial court therefore properly permitted the State to offer bad
acts evidence for the purpose of rebutting Defendant’s
fabrication defense. 8

8. The Utah Supreme Court has referred to this line of reasoning
as the “doctrine of chances.” See State v. Verde, 2012 UT 60, ¶ 13,
296 P.3d 673, abrogated on other grounds by State v. Thornton, 2017
UT 9, 391 P.3d 1016. Furthermore, it has held that rule 404(b)
evidence should not be admitted under the doctrine of chances
“absent satisfaction of four foundational requirements.” Id. ¶ 57.
First, “[t]he issue for which the uncharged misconduct evidence
is offered must be in bona fide dispute.” Id. (emphasis, citation,
and internal quotation marks omitted). Second, “[e]ach
uncharged incident must be roughly similar to the charged
crime.” Id. ¶ 58 (emphasis, citation, and internal quotation marks
omitted). Third, “[w]here the prior uncharged conduct is an
accusation of sexual conduct, each accusation must be
independent of the others.” Id. ¶ 60. And fourth, “[t]he
defendant must have been accused of the crime . . . more
frequently than the typical person [is accused of that crime]
accidentally.” Id. ¶ 61 (emphasis, citation, and internal quotation
marks omitted).
Given Defendant’s truncated briefing on this topic, we
need not engage in a detailed analysis to determine whether
these foundational requirements were satisfied here. To the
extent Defendant addresses them at all, his arguments are
misplaced because he erroneously assumes that the purpose for
which the trial court admitted the State’s bad acts evidence was
to show that Victim did not consent to Defendant’s conduct. For
(continued…)

20141119-CA 14 2018 UT App 79
 State v. Balfour

¶32 Next, Defendant maintains that the court erred in
admitting the testimony under rule 403 because the “[t]he sheer
volume of the testimony was . . . problematic” and “the danger
of unfair prejudice was acutely high” given the “salacious”
nature of their accounts. Rule 403 of the Utah Rules of Evidence
provides that “[t]he court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . .
unfair prejudice” or if it is “needlessly . . . cumulative.” Utah R.
Evid. 403. We conclude that, while admitting evidence of past
sexual activity can be problematic, see id. R. 404(b); see also State
v. Balfour, 2008 UT App 410, ¶¶ 22–26, 198 P.3d 471 (stating that
such evidence may be admitted so long as it complies with rules
403 and 404(b) of the Utah Rules of Evidence), in this instance
the fact that all four of Defendant’s victims told strikingly similar
stories renders the probative value of the three witnesses’
testimony extremely strong relative to the dangers of unfair
prejudice and needless cumulation. 9

(…continued)
instance, he argues, to no effect, that the similarity requirement
was not satisfied because “only one” of the five points of
similarity the trial court observed between the four women’s
narratives “had anything to do with consent.” Accordingly,
because Defendant does not dispute that the issue of fabrication
was in bona fide dispute, that the four women’s narratives were
sufficiently similar to rebut his charge of fabrication, that the
women’s accusations were independent of each other, or that
Defendant has been accused of abusing young women more
often than is typical, we need not address these matters further.

9. Defendant maintains that, on the contrary, “the probative
value of the evidence was extremely low.” However, in arguing
the point, Defendant assumes that proving Victim’s lack of
consent “was the only legitimate noncharacter purpose” for
which the women’s testimony might be admitted. Since we have
already concluded that rebutting Defendant’s fabrication
(continued…)

20141119-CA 15 2018 UT App 79
 State v. Balfour

¶33 The logic of the State’s strategy for rebutting Defendant’s
fabrication defense was this: the more often the jury heard of
Defendant’s same basic ruse from independent sources, the
more likely it would be to conclude that Victim’s story was
genuine rather than a fabrication. So while putting three women
on the stand to share their accounts might have resulted in the
presentation of some cumulative evidence, in this case the
evidence was not needlessly cumulative. And the likelihood of the
State convincing the jury that Victim was telling the truth
increased in direct proportion with the level of similarity
exhibited by the other women’s narratives. Accordingly, while
the three witnesses’ accounts admittedly had some potential to
create unfair prejudice, the remarkable level of similarity
between the four women’s narratives rendered their testimony
exceedingly probative on the question of fabrication. The trial
court scrupulously enumerated these similarities in its order
permitting the State to introduce its rule 404(b) evidence:

(1) the victims were all younger women;

(2) each victim had only a slight or casual
acquaintance with [Defendant] with no prior
romantic involvement;

(3) each of the victims was lured to [Defendant’s]
office under promises of employment or stardom;

(4) all four of the assaults occurred in settings
where [Defendant] was isolated with the victim;
and

(5) in each instance, the victim verbally and/or
physically resisted the assault after becoming
aware of what was really happening.

(…continued)
defense was a permissible purpose under rule 404(b), we need
not further address Defendant’s probativeness argument.

20141119-CA 16 2018 UT App 79
 State v. Balfour

Given these compelling points, we would be hard pressed to
conclude that the court abused its discretion in determining that
the probative value of the women’s testimony was substantially
outweighed by the danger of unfair prejudice or needless
cumulation.

¶34 Finally, we note that the court further mitigated the
danger of unfair prejudice by providing a limiting instruction,
which cautioned that the three women’s testimony was “not
admitted to prove a character trait . . . or to show that
[Defendant] acted in a manner consistent with such a trait.”
While “[w]e have no delusion that a limiting instruction can
undo serious prejudice, . . . Utah courts have recognized that
limiting instructions nevertheless reduce somewhat the danger
of improper prejudice.” State v. Peters, 796 P.2d 708, 712 (Utah Ct.
App. 1990) (citation omitted). “Especially in light of [the court’s]
instruction [in this case], we conclude that the possibility the jury
would convict on an improper basis was remote.” See State v.
Lomu, 2014 UT App 41, ¶ 33, 321 P.3d 243.

¶35 We conclude that the State offered the other women’s
testimony for a proper noncharacter purpose and that the
probative value of their testimony was exceedingly strong
relative to the dangers of unfair prejudice and needless
cumulation of evidence. Accordingly, Defendant has not
convinced us that the trial court abused its discretion in
determining that the State’s rule 404(b) evidence was admissible.

III. Exclusion of Witnesses

¶36 Defendant maintains that the trial court’s order excluding
his witnesses at trial was “so sweeping” that it “completely
stopped [him] from presenting any meaningful defense,”
thereby violating his rights to due process under the federal and
state constitutions. Because Defendant has not demonstrated
that he was prejudiced by the error he ascribes to the court, we
reject his argument.

20141119-CA 17 2018 UT App 79
 State v. Balfour

¶37 Before trial, the trial court ordered the parties to exchange
witness lists, along with summaries of their witnesses’ proposed
testimony. Defendant provided a list of witnesses that
included—remarkably enough—a judge, the Salt Lake County
District Attorney, and the Utah Attorney General. He did not,
however, provide a summary of their proposed testimony or
offer any reason to believe that their testimony was relevant to
his case. Despite two court orders directing that he remedy his
omission, Defendant failed to provide the summaries prior to
trial. As a result, the court excluded his proposed witnesses as a
sanction for violating its discovery orders.

¶38 We need not comment on the propriety of the court’s
sanction, or even on the strength of Defendant’s constitutional
claim, to resolve the issue at hand. “Unless an appellant
demonstrates that an error is prejudicial, it will be deemed
harmless and no appellate relief is available.” Huish v. Munro,
2008 UT App 283, ¶ 8, 191 P.3d 1242 (citations omitted). See Utah
R. Crim. P. 30(a) (“Any error, defect, irregularity or variance
which does not affect the substantial rights of a party shall be
disregarded.”). By failing to proffer a summary of his proposed
witnesses’ testimony, Defendant foreclosed his ability on appeal
to demonstrate that he was prejudiced by the court’s action.
“Where the complaint on appeal is about the exclusion of
evidence, it is essentially impossible to demonstrate prejudice in
the absence of a proffer of what the excluded evidence would
show.” Huish, 2008 UT App 283, ¶ 8. We therefore conclude that
there was no reversible error in the court’s decision to exclude
Defendant’s witnesses. 10

10. Defendant has filed several motions and letters expressing
his displeasure with his appellate counsel and asks us “to
remand his appeal to address conflict of appellate counsel.” This
is a bit of a surprise, as Defendant, after initially complaining of
a lack of communication with counsel, filed a letter indicating
that he had consulted with his appellate counsel and established
“channels of communication.” Defendant now claims that
(continued…)

20141119-CA 18 2018 UT App 79
 State v. Balfour

CONCLUSION

¶39 For the foregoing reasons, we reject Defendant’s
ineffective assistance claim, and we further conclude that the
court did not err in admitting the State’s rule 404(b) evidence or
in excluding Defendant’s proposed witnesses. Accordingly, we
affirm.

(…continued)
appellate counsel did not thoroughly address his arguments, but
he does not provide any explanation for what counsel should
have done differently. We therefore deny his motions and
decline to take any action on his letters.

20141119-CA 19 2018 UT App 79