State v. Lane

2019 UT App 86

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ANTHONY TYRONE LANE,
Appellant.

Opinion
No. 20160930-CA
Filed May 23, 2019

Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 161901895

Teresa L. Welch, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee

JUDGE KATE APPLEBY authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN FORSTER concurred.
JUDGE RYAN M. HARRIS concurred, with opinion.

APPLEBY, Judge:

¶1 Anthony Tyrone Lane appeals his convictions for
aggravated assault and possession of a dangerous weapon by a
restricted person. He argues the district court erred in applying
the doctrine of chances and improperly admitted prejudicial
prior act evidence. He also argues his trial counsel was
ineffective for failing to request the trial court judge’s
disqualification based on remarks she made during a pretrial
hearing. We reject Lane’s ineffective assistance of counsel claim
but conclude the prior act evidence should have been excluded
and therefore remand for a new trial.
 State v. Lane

BACKGROUND

¶2 Lane lives in Salt Lake City. 1 In February 2016, he was in a
physical altercation with the victim (Victim) at a homeless
shelter. Lane was arrested and charged with aggravated assault
and possession of a dangerous weapon by a restricted person.
Trial was held in August 2016.

¶3 Victim was the first witness to testify. Victim previously
lived at the shelter and returned there that day to pick up mail.
After realizing the mailroom was closed, he wandered around
talking to people. There were “50 to 100 people milling around”
the shelter, including Lane. Victim testified that as he was
talking, he “got side blinded, got punched in the face and . . . just
started swinging back at the direction that it came from.” Several
people broke up the fight. Victim “took a few steps” back and
“then it started up again.” Victim testified he got punched again,
“went down to duck a punch,” and when he came back up, he
“was bleeding.” He thought he had just been punched but
guessed he “ended up getting sliced.” Victim sustained three
lacerations to his face as a result of the incident. Lane ended up
with a small cut on his finger. Victim denied using a knife in the
altercation and denied having one.

¶4 The State presented surveillance footage of the incident.
At first, Victim could not identify himself on the video recording
and testified he was unsure with whom he was fighting. Victim
added that it was “hard to see” what was going on in the
footage. He testified multiple times he did not know who hit
him. After the altercation, Victim left the scene to try to catch a
train to a hospital. He was bleeding severely and had a towel on

1. “On appeal, we recite the facts in the light most favorable to
the jury’s verdict.” State v. Martinez, 2013 UT App 154, ¶ 2 n.1,
304 P.3d 110.

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 State v. Lane

his face when he was stopped by a security officer. Police officers
arrived and called for an ambulance. Victim was treated at a
hospital for his injuries.

¶5 A witness (Witness) to the altercation also testified.
Witness was a shelter resident who saw Lane and Victim “get
into an altercation” and then being “pulled apart.” He testified
he saw Lane “excuse[] himself,” but then “they got into [a]
second altercation [and he] noticed both of them had blades.” “A
crowd was following them,” and “when [Lane] left and [Victim]
pursued,” the crowd “let them get into it again.” Witness saw
Lane “sidestep [Victim] and throw a punch back at him.”
Witness testified that Lane “clearly took off . . . [and] was trying
to avoid that whole mess.”

¶6 One of the responding officers (Officer) also testified.
Officer commonly patrols the shelter and considers it a “high
crime area.” He investigates “anywhere from 15 to 30” incidents
a day, ranging from “drug crimes on up to pretty serious cases.”
He testified that it is “not uncommon for people to have guns
and all sorts of other things down there.” He arrived on the
scene and Victim told him that he challenged Lane first for
“being a big mouth” and “acting tough.” When shown footage
of the incident, Officer testified he “couldn’t tell a whole lot from
the surveillance video.”

¶7 The second day of trial primarily consisted of testimony
regarding two prior incidents involving Lane. Before trial, the
State filed a motion asking the court to admit evidence of
incidents that occurred at the shelter in 2012 (2012 Incident) and
2015 (2015 Incident). The State sought to introduce the evidence
under rule 404(b) of the Utah Rules of Evidence or, in the
alternative, the doctrine of chances. The State argued that these
incidents were offered for a proper non-character purpose under
rule 404(b) to show “intent, plan, absence of mistake, motive,
lack of accident, and to rebut [Lane’s] self-defense claim.”

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 State v. Lane

Specifically, the State argued that “the prior bad act evidence
will prove [Lane assaulted Victim with unlawful force or
violence] by showing that [Lane] knew what he was doing when
he assaulted [Victim] with a sharp object, that he had a plan and
motive to injure [Victim], and that he was not acting in
self-defense.” The State also argued this evidence was relevant
and that the probative value was not substantially outweighed
by unfair prejudice.

¶8 In the alternative, the State argued the evidence should be
admitted under the doctrine of chances. The State contended
“the evidence of [Lane’s] two prior bad acts [was] offered to
counter his claim of self-defense in the current case” and to
“show that it is unlikely that [he] would be placed in a situation
three times in four years that would require cutting the victims’
faces in self-defense.” The State claimed it was not “assert[ing]
that [Lane] has a propensity for cutting faces.” The State argued
that the evidence was relevant, it was being offered for a proper
non-character purpose, and its probative value substantially
outweighed its prejudicial effect.

¶9 The district court ruled that the two prior incidents
involving Lane were admissible under the doctrine of chances
because the foundational requirements were met (that is,
materiality, similarity, independence, and frequency). The court
admitted the evidence of the two incidents on this ground but
did not evaluate it under rule 403.

¶10 At trial, the following evidence was presented regarding
the 2015 Incident. A woman (2015 Witness) who once lived at
the shelter testified first. She testified that the altercation began
with Lane arguing with a man and Lane was “as always . . .
letting him know who he was.” 2015 Witness testified that after
the two stopped yelling Lane walked away, then returned and
“slashed” the man in the face. She testified the other man did not
have a weapon. After that, 2015 Witness approached the man

20160930-CA 4 2019 UT App 86
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and put a shirt on his face and waited for medical assistance.
After 2015 Witness was excused, the court—without prompting
from the parties—reminded the jury that the “last witness has to
do with a separate incident from the one we talked about
yesterday. And witnesses from here on out are separate, right?
2015 instead of 2016.”

¶11 A responding officer (2015 Officer) also testified about the
2015 Incident. He was patrolling the shelter that day and
separated Lane from a man with whom Lane was arguing. A
few minutes after separating the men, 2015 Officer was called to
respond to a “fight with a knife.” As 2015 Officer approached, he
saw a man “being attended to by several other individuals . . .
[and 2015 Officer] could see blood seeping through [a] cloth
[held to the man’s face]. There was blood on the ground and
then also blood on the [man’s] shirt.” The individuals attending
to the man told 2015 Officer that Lane cut him. 2 When 2015
Officer encountered Lane after the incident, Lane told 2015
Officer “it was self-defense.” Another responding officer
testified that officers seized a box cutter from Lane. The other
man was transported to the hospital for a “deep laceration” on
the left side of his face “starting just above the ear and
continuing all the way down to the corner of his mouth.” Lane
was later charged with assault in connection with the 2015
Incident. The case went to trial and a jury found Lane not guilty.

¶12 The State next introduced evidence from the 2012
Incident. A responding officer (2012 Officer) was called to the
shelter on a report of a “man with a knife.” 2012 Officer “noticed
[Lane] bleeding from the mouth, [and it] looked like he’d been
involved in an altercation.” 2012 Officer observed a knife

2. Defense counsel objected to this statement as hearsay and the
court sustained the objection but did not instruct the jury to
disregard the statement.

20160930-CA 5 2019 UT App 86
 State v. Lane

approximately seven to eight feet away from Lane that was
“silver in color, had a wooden handle, [and] about a 4-inch
blade.” Lane told 2012 Officer the knife was his. 2012 Officer
could not recall whether there was blood on it. He testified Lane
was the only individual bleeding. A second officer testified that
Lane said the man he was fighting with “struck him with a
head-butt and then punched him and then [Lane] drew a knife.”
Lane claimed he produced the knife in self-defense. He pled
guilty to assault for the 2012 Incident.

¶13 At the conclusion of trial, the jury convicted Lane of two
felony charges: aggravated assault and possession of a
dangerous weapon by a restricted person. The court sentenced
Lane and he appeals.

ISSUES AND STANDARDS OF REVIEW

¶14 Lane raises two issues on appeal. First, Lane contends the
district court improperly applied the doctrine of chances analysis
in admitting evidence of the 2012 and 2015 incidents. “The
appropriate standard of review for a district court’s decision to
admit or exclude evidence is abuse of discretion.” State v.
Lowther, 2017 UT 34, ¶ 17, 398 P.3d 1032 (quotation simplified).
“A district court abuses its discretion when it admits or excludes
evidence under the wrong legal standard.” Id. (quotation
simplified). Reversal is warranted if “absent the error, there was
a reasonable likelihood of a more favorable result for the party,”
and therefore “our confidence in the jury’s verdict is
undermined.” Robinson v. Taylor, 2015 UT 69, ¶ 39, 356 P.3d 1230
(quotations simplified).

¶15 Second, Lane contends his trial counsel was ineffective for
failing to request the trial judge’s disqualification based on
remarks she made to him during a pretrial hearing. “An
ineffective assistance of counsel claim raised for the first time on

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 State v. Lane

appeal presents a question of law.” State v. Ott, 2010 UT 1, ¶ 16,
247 P.3d 344 (quotation simplified).

ANALYSIS

I. Prior Act Evidence

¶16 Lane argues the district court improperly applied the
doctrine of chances in admitting evidence of the 2012 and 2015
incidents. Specifically, Lane contends the court erred in
admitting the prior act evidence under rule 404(b) without also
weighing it under rule 403. We agree.

¶17 It is “fundamental in our law that a person can be
convicted only for acts committed, and not because of general
character or a proclivity to commit bad acts.” State v. Reed, 2000
UT 68, ¶ 23, 8 P.3d 1025. This concept is articulated in rule 404(b)
of the Utah Rules of Evidence, which provides that “[e]vidence
of a crime, wrong, or other act is not admissible 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). But “[t]his evidence may be admissible for another
purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Id. R. 404(b)(2).

¶18 The “doctrine of chances” is also used to admit otherwise
excludable prior act evidence under rule 404(b). It is “a theory of
logical relevance that rests on the objective improbability of the
same rare misfortune befalling one individual over and over.”
State v. Verde, 2012 UT 60, ¶ 47, 296 P.3d 673 (quotation
simplified), abrogated on other grounds by State v. Thornton, 2017
UT 9, 391 P.3d 1016. This evidence is used in cases that involve
“rare events happening with unusual frequency.” State v. Lopez,
2018 UT 5, ¶ 52, 417 P.3d 116. Evidence admitted under the
doctrine of chances must satisfy four foundational

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requirements. 3 Verde, 2012 UT 60, ¶ 57. “These . . . include
materiality, similarity, independence, and frequency.” State v.
Lomu, 2014 UT App 41, ¶ 28, 321 P.3d 243 (citing Verde, 2012 UT
60, ¶ 5).

3. In State v. Lowther, the Utah Supreme Court clarified confusion
over whether the doctrine of chances requirements should be
assessed as elements under rule 404(b) or as factors replacing the
Shickles factors under rule 403. 2017 UT 34, ¶ 21, 398 P.3d 1032.
In State v. Shickles, the supreme court articulated a set of
factors district courts should consider in conducting a rule 403
balancing test prior to admitting 404(b) evidence. 760 P.2d 291,
295–96 (Utah 1988), abrogated by State v. Doporto, 935 P.2d 484
(Utah 1997). In State v. Verde, 2012 UT 60, 296 P.3d 673, abrogated
on other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016, the
court articulated a different set of factors courts should consider
for the doctrine of chances but it was unclear whether those
factors were intended to replace the Shickles factors under rule
403. See State v. Lowther, 2015 UT App 180, ¶ 25, 356 P.3d 173
(“Given this court’s decision in State v. Labrum, to interpret Verde
as replacing Shickles, the trial court’s strict adherence to Shickles
is misplaced.”), aff’d on other grounds, 2017 UT 34, 398 P.3d 1032.
The supreme court clarified in Lowther that district courts should
not “make a mechanical application” of any factors but should
simply “apply the text of rule 403.” 2017 UT 34, ¶ 33 n.51.
Specifically, the court held that “in performing a rule 403
balancing test, a court is not bound by [Verde’s] foundational
requirements” and can consider any relevant factors in applying
the text of rule 403. Id. ¶ 21.
But it has always been clear that traditional balancing of
probative value and prejudicial effect under rule 403 is required
prior to admitting 404(b) evidence. See, e.g., State v. Thornton,
2017 UT 9, ¶ 36, 391 P.3d 1016; Verde, 2012 UT 60, ¶ 15; State v.
Lomu, 2014 UT App 41, ¶ 33, 321 P.3d 243; State v. Labrum, 2014
UT App 5, ¶ 18, 318 P.3d 1151.

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 State v. Lane

¶19 The difficulty in applying rule 404(b) “springs from the
fact that evidence of prior bad acts often will yield dual
inferences.” Verde, 2012 UT 60, ¶ 16. “[E]vidence of a person’s
past misconduct may plausibly be aimed at establishing motive
or intent, but that same evidence may realistically be expected to
convey a simultaneous inference that the person behaved
improperly in the past and might be likely to do so again in the
future.” Id. “If such evidence is really aimed at establishing a
defendant’s propensity to commit a crime, it should be excluded
despite a proffered . . . legitimate purpose.” Id. ¶ 17 (quotation
simplified).

¶20 If a court finds a proper non-character purpose for the
evidence, it must also engage in a separate rule 403 analysis to
weigh these competing concerns. Id. ¶¶ 17–18. Weighing this
evidence is “essential to preserve the integrity of rule 404(b).
Without it, evidence of past misconduct could routinely be
allowed to sustain an inference of action in conformity with bad
character—so long as the proponent of the evidence could
proffer a plausible companion inference that does not contravene
the rule.” Id. ¶ 18.

¶21 For purposes of our analysis we assume, without
deciding, that the evidence in this case was admissible under
rule 404(b). 4 In its ruling, the district court correctly articulated
the standard for admitting prior act evidence. First, a court must
determine whether the evidence is offered for a proper
non-character purpose. Next, a court must find that the
evidence’s “probative value is not substantially outweighed by
the danger of ‘unfair prejudice, confusing the issues, misleading

4. Lane does not ask this court to find that the doctrine of
chances should not be used to rebut a defense of self-defense.
But, as the concurring opinion points out, we have our doubts
that it should be applied in this context.

20160930-CA 9 2019 UT App 86
 State v. Lane

the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.’” (Quoting Utah R. Evid. 403.) But despite
articulating the proper standard, the court failed to apply rule
403 when it found the 2012 and 2015 incidents admissible under
the doctrine of chances. 5 Its analysis simply consisted of
mechanically applying Verde’s foundational requirements under
rule 404(b). See State v. Lowther, 2017 UT 34, ¶ 1, 398 P.3d 1032
(holding that the district court abused “its discretion by
mechanically applying the Shickles factors to assess the probative
value of the State’s rule 404(b) evidence”). In other words, the
court applied the wrong legal standard in admitting this
evidence by not conducting a separate rule 403 analysis. This
amounts to an abuse of discretion. See id. ¶ 17.

¶22 Courts must “carefully consider whether [prior act
evidence] is genuinely being offered for a proper, non-character
purpose, or whether it might actually be aimed at sustaining an

5. Rule 403 balancing is always required before admitting
evidence under rule 404(b). See Lomu, 2014 UT App 41, ¶ 33
(“Having taken all of the Verde requirements into account and
having determined that there was substantial probative value in
admitting evidence of the other episode, we must also consider
whether the potential for prejudice or confusion from admitting
the evidence substantially outweighed its probative value.”
(emphasis added)); Labrum, 2014 UT App 5, ¶ 18 (“Evidence
offered under rule 404(b) is admissible if it is relevant for a non-
character purpose and meets the requirements of Rules 402 and
403.” (emphasis added) (quotation simplified)); see also R. Collin
Mangrum & Dee Benson, Mangrum & Benson on Utah Evidence
203 (2018–2019 ed.) (“Rule 403 codifies the common law
authority of the judge to balance the probative weight of any item
of evidence against its overall unfairness. If a drafter were
required to reduce all the rules of evidence into two rules, it
would be rules 402 and 403.” (emphasis added)).

20160930-CA 10 2019 UT App 86
 State v. Lane

improper inference of action in conformity with a person’s bad
character.” Verde, 2012 UT 60, ¶ 18. “[E]ven if the evidence may
sustain both proper and improper inferences under rule 404(b),”
courts must “balance the [inferences] against each other under
rule 403, excluding 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.”
Id. As we articulated supra ¶ 18 note 3, courts should not “make
a mechanical application” of any factors under rule 403 but
should simply apply the text of the rule. Lowther, 2017 UT 34,
¶ 33 n.51.

¶23 In this case, the prior act evidence should have been
excluded because the prejudicial inference that Lane’s character
predisposes him to get in knife fights and then claim self-defense
substantially outweighs the State’s proffered justifications for
admitting the evidence. The State claimed it was offering the
evidence to show Lane’s “non-character purpose of intent, plan,
absence of mistake, motive, lack of accident, and to rebut [his]
self-defense claim.” Specifically, the State argued the evidence
would prove Lane’s unlawful use of force or violence “by
showing that [he] knew what he was doing when he assaulted
[Victim] with a sharp object, that he had a plan and motive to
injure [Victim], and that he was not acting in self-defense, but
that he was, in fact, the actual aggressor.” The State also argued
the evidence should be admitted under the doctrine of chances.
It argued that the prior act evidence shows that “it is unlikely
that [Lane] would be placed in a situation three times in four
years that would require cutting the victims’ faces in self-
defense.” The State claimed it was not asserting that Lane “has a
propensity for cutting faces.”

¶24 Merely stating that evidence is not being offered for
propensity purposes does not mean the evidence does not
present an improper propensity inference. First, it is not highly
strange or unlikely that Lane would need to defend himself

20160930-CA 11 2019 UT App 86
 State v. Lane

multiple times over years of living in a high crime area. Officer
testified at trial that he encounters many individuals carrying
weapons in that area and responds to “15 to 30” incidents a day
ranging from “drug crimes” up to “pretty serious cases.”
Further, the proffered use of the evidence presented by the State
is substantially outweighed by the unfairly prejudicial inference
that Lane has the character of someone who continuously
provokes altercations, cuts the faces of his victims, and then
claims self-defense.

¶25 The way the evidence was presented at trial also supports
our conclusion that the prior act evidence in this case presented
a prejudicial propensity inference. In opening statements the
State told the jury how to view the prior act evidence. “We’re
here today on an aggravated assault case so I want to tell you a
little bit about that. In [2015], prior to the incident in 2016 that
we’ll be trying over the next two days, the defendant got into an
argument with an individual.” The State continued,

[Lane] pulled out a box cutter and sliced . . . [the
individual] across the face, opening his cheek.
When [Lane] was arrested . . . he said he was only
defending himself, it was self-defense. But then he
said he would do it again. And that is why we are
here today for this 2016 case because he did exactly
what he said he was going to do. He did it again.

(Emphasis added.) The statement that Lane “did it again” is
precisely the type of propensity inference rule 404(b) prohibits.
See Utah R. Evid. 404(b) (“Evidence of a crime . . . is not
admissible to prove a person’s character in order to show that on
a particular occasion the person acted in conformity with the
character.”); State v. Burke, 2011 UT App 168, ¶ 28, 256 P.3d 1102
(holding “evidence of a defendant’s bad acts is not admissible to
prove that a defendant has a propensity for bad behavior and
has acted in conformity with his dubious character”); Edward J.

20160930-CA 12 2019 UT App 86
 State v. Lane

Imwinkelried, Criminal Minds: The Need to Refine the Application of
the Doctrine of Objective Chances as a Justification for Introducing
Uncharged Misconduct Evidence to Prove Intent, 45 Hofstra L. Rev.
851, 856 (2017) [hereinafter Imwinkelried] (“It is axiomatic that
the jurors may not reason that the other act shows the accused’s
bad character and that ‘if he did it once, he did it again.’”).

¶26 Next, we address whether admitting the prior act
evidence was prejudicial to the outcome of trial. The evidence
presented at trial for Lane’s 2016 charges, standing alone, was
weak and based on circumstantial evidence. Victim never
identified Lane as his attacker, none of the police officer
witnesses saw the incident, and the defense witness testified he
saw Lane “trying to avoid that whole mess” and that “both
[Lane and Victim] had blades.” Also, the surveillance footage
from 2016 was blurry and it was “hard to see” what occurred.

¶27 The prior act evidence also took up a significant portion
of the two-day trial. The State finished presenting its evidence of
the 2016 charges on the first day and spent most of the second
day presenting the prior act evidence. Further, at the beginning
of the second day, after the first witness testified regarding the
prior act evidence, the court sua sponte addressed the jury to
remind it that the State was no longer presenting evidence of
Lane’s 2016 charges. Based on how the evidence presented at
trial, it was possible that Lane’s conviction “reflected the jury’s
assessment of his character, rather than the evidence of the crime
he was charged with.” State v. Rackham, 2016 UT App 167, ¶ 24,
381 P.3d 1161. Because the 2016 evidence was weak and the prior
act evidence took up a significant portion of the trial, “the
likelihood of a different outcome in the absence of the rule 404(b)
evidence . . . is sufficiently high to undermine confidence in the
verdict.” Id. (quotation simplified).

¶28 We also note that the jury instruction does not cure the
prejudice in this case. The stipulated instruction states,

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 State v. Lane

You have heard evidence that [Lane] brandished a
knife in a fight and that he cut an individual’s face
with a box cutter. Both of these acts occurred
before the acts charged in this case. You may
consider this evidence, if at all, for the limited
purpose of self-defense. This evidence was not
admitted to prove a character trait of the defendant
or to show that he acted in a manner consistent
with such a trait. Keep in mind that the defendant
is on trial for the crimes charged in this case, and
for those crimes only. You may not convict a
person simply because you believe he may have
committed some other acts at another time.

The State argues any improper use of the 2012 and 2015
incidents at trial was cured through this instruction. We disagree
that this instruction properly informed the jury on how to use
the evidence from the 2012 and 2015 incidents. See Imwinkelried
at 878 (noting that the risk of unfair prejudice can be minimized
by a “clear [and] forceful limiting instruction”). The instruction
tells the jury it is allowed to consider the 2012 and 2015 incidents
for “self-defense” but at the same time it is not allowed to
“convict a person simply because you believe he may have
committed some other acts at another time.” This seems to tell
the jury it is allowed to consider Lane’s propensity for getting in
fights and arguing he was acting in “self-defense” while
simultaneously telling it not to convict Lane because he may
have been in fights before and then claimed “self-defense.”

¶29 We conclude that the prior act evidence should have been
excluded before trial under rule 403 and, had it been excluded,
there is a “reasonable likelihood of a more favorable result.”
Robinson v. Taylor, 2015 UT 69, ¶ 39, 356 P.3d 1230 (quotation
simplified).

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 State v. Lane

II. Trial Judge Disqualification

¶30 Lane also contends his counsel was ineffective for failing
to request the judge’s disqualification because of remarks she
made to Lane during a pretrial hearing. We disagree.

¶31 To succeed on his ineffective assistance of counsel claim,
Lane must show “(1) that counsel’s performance was so deficient
as to fall below an objective standard of reasonableness and
(2) that but for counsel’s performance there is a reasonable
probability that the outcome of the trial would have been
different.” State v. Montoya, 2004 UT 5, ¶ 23, 84 P.3d 1183
(quotation simplified). “To prevail on the first prong of the test, a
defendant must identify specific acts or omissions
demonstrating that counsel’s representation failed to meet an
objective standard of reasonableness.” Id. ¶ 24 (quotation
simplified). Lane fails to meet the first prong in this case.

¶32 During a pretrial hearing Lane’s counsel asked the court
to release Lane from jail pending trial. The State opposed his
release arguing that the allegations of the current charges along
with “his criminal history . . . show[s] that he is a danger to the
community” and that “he could potentially be a flight risk.” In
response the judge stated, “What concerns me is the difficulty
with the self-defense claim when you are the one introducing a
weapon into a fight. Even if someone else starts that fight, you
then can’t introduce a weapon into that fight. . . . That’s what
makes you a danger to society.” The judge concluded, “I am not
inclined to do a release at this time, not after I’ve looked at the
slashed faces of people you’ve had contact with.”

¶33 The court found Lane was “a danger to society” in the
context of considering whether to release him before trial. The
court was not, as Lane argues, making a premature

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determination of his guilt, 6 but merely engaging in routine and
necessary analysis for purposes of determining his pretrial
release status. See State v. Kucharski, 2012 UT App 50, ¶ 4, 272
P.3d 791 (“The fact that a judge has formed an opinion regarding
a particular defendant based on proceedings occurring in front
of the judge is not a ground for disqualification.” (citing Utah
Code of Judicial Conduct rule 2.11(A))); see also id. (“[B]ias or
prejudice requiring disqualification must usually stem from an
extrajudicial source, not from occurrences in the proceedings
before the judge.” (quotation simplified)).

¶34 We conclude these statements do not establish that the
judge was biased and therefore Lane’s trial counsel was not
ineffective for not requesting the judge’s disqualification. See
State v. Tueller, 2001 UT App 317, ¶ 16, 37 P.3d 1180 (explaining
that if “there was no actual bias in the trial judge’s actions, we
cannot say that trial counsel’s failure to attempt to disqualify the
judge constitutes” deficient performance); see also State v.
Munguia, 2011 UT 5, ¶ 19, 253 P.3d 1082 (explaining that if the
judge is not required to recuse herself, defense counsel is not
ineffective for not requesting it).

CONCLUSION

¶35 We reject Lane’s ineffective assistance of counsel claim
and find that the judge’s statements did not amount to bias
requiring disqualification. But we conclude that Lane was
prejudiced by the admission of the prior act evidence. The prior
act evidence should have been excluded and we reverse and
remand for a new trial.

6. We also note that the jury, not the judge, was the factfinder in
this case.

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 State v. Lane

HARRIS, Judge (concurring):

¶36 I am in full agreement with the majority’s analysis in this
case, and specifically with its conclusion that the district court’s
failure to conduct a rule 403 analysis of the prior bad acts
evidence was prejudicial error. I agree with the majority that, in
this case, the prior bad acts evidence was deployed in such a
way as to make it nearly impossible for the jury to avoid
drawing a propensity inference, and that the evidence should
have been excluded on that basis. I write separately, as I did
recently in State v. Murphy, 2019 UT App 64, to again express
reservations about the manner in which the doctrine of chances
(the Doctrine) is currently being used in Utah.

I

¶37 My first concern is a big-picture one: I wonder whether it
could ever be appropriate for the Doctrine to be applied to admit
prior acts evidence to rebut a defendant’s claim that he acted in
self-defense. Lane does not raise this issue, but I think it would
be worthwhile for a future litigant to raise it, so that a Utah
appellate court can weigh in on the question after full briefing.

¶38 As described by our supreme court, the Doctrine is “a
theory of logical relevance that rests on the objective
improbability of the same rare misfortune befalling one
individual over and over.” State v. Verde, 2012 UT 60, ¶ 47, 296
P.3d 673 (quotation simplified), abrogated on other grounds by State
v. Thornton, 2017 UT 9, 391 P.3d 1016; see also State v. Lopez, 2018
UT 5, ¶ 52, 417 P.3d 116 (stating that doctrine of chances cases
“involve rare events happening with unusual frequency”). At
root, the Doctrine is simply “probability reasoning.” Verde, 2012
UT 60, ¶¶ 50, 53; cf. Hopt v. People, 120 U.S. 430, 440 (1887)
(referring to the “doctrine of chances” as a tool used to “establish
a probability”).

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¶39 Because the Doctrine is a probability-based construct, it
has been widely applied to admit prior bad acts evidence in
cases in which the accused’s defense is that the allegedly
criminal act in question occurred by accident or random chance
rather than by design. See Murphy, 2019 UT App 64, ¶ 54 (Harris,
J., concurring) (citing cases). 7 In such cases, the prosecution may
be allowed to introduce evidence of previous incidents involving
the defendant in order to demonstrate the extreme statistical
improbability that the allegedly criminal act occurred solely by
accident or random chance. See, e.g., United States v. York, 933
F.2d 1343, 1350 (7th Cir. 1991) (stating that “[t]he man who wins
the lottery once is envied; the one who wins it twice is
investigated”), overruled on other grounds by Wilson v. Williams,
182 F.3d 562 (7th Cir. 1999). That is, where the defendant’s claim
is that “the event in question was an accident,” the Doctrine can
apply to rebut that claim, as our supreme court explained in
Verde: “Propensity inferences do not pollute this type of
probability reasoning,” because “[t]he question for the jury is not
whether the defendant is the type of person who, for example,
sets incendiary fires or murders his relatives.” 2012 UT 60, ¶ 50

7. The defense of mistake or accident can be raised with regard
to either actus reus or mens rea. In the famous “Brides in the Bath”
case, the defense was that there had been no actus reus, and that
the three brides had each died by accident while bathing. See
State v. Verde, 2012 UT 60, ¶ 49 n.20, 296 P.3d 673 (citing Rex v.
Smith, 11 Crim. App. 229, 84 L.J.K.B. 2153 (1915)), abrogated on
other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016. In the
case of Dean Wigmore’s famous hypothetical about a hunter
who shot at his companion three times, the hunter necessarily
concedes the existence of an actus reus, but defends the case on
the grounds that he did not intend to shoot. See 2 John Henry
Wigmore, Evidence in Trials at Common Law § 302, at 241 (James
H. Chadbourn ed., 1979). In these examples, however, the
underlying defense is the same: it was a mistake or an accident.

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 State v. Lane

(quotation simplified). Instead, “[t]he question is whether it is
objectively likely that so many fires or deaths could be
attributable to natural ca[u]ses.” 8 Id. This evidence “tends to
prove a relevant fact without relying on inferences from the
defendant’s character,” and is therefore not impermissible
propensity evidence. Id. ¶ 51. In the context of rebutting a claim
of mistake or accident, “[i]t is that objective unlikelihood [of
repeated similar misfortunes] that tends to prove” that actions
were brought about by “human agency, causation, and design”
rather than by accident or random chance. Id. ¶ 50 (quotations
simplified).

¶40 A doctrine like this—based on probability reasoning and
on the statistical unlikelihood of repeated occurrences of rare,
random events—would seem to lose much of its logical
coherence if applied in contexts where the underlying acts in
question are not random at all, but instead are based on human
volition. Applied in such contexts, it would seem to become very

8. It bears noting that the underpinnings of even this logic have
been credibly (albeit impliedly, without mentioning or citing to
Verde) called into question. See, e.g., State v. Vuley, 2013 VT 9,
¶¶ 19–22, 70 A.3d 940 (holding that the Doctrine cannot be used,
even in its probabilistic sense, when applied to “human action”
rather than to truly random events, because “[i]nferring from the
implausibility of all occurrences being accidents that any
particular occurrence was not an accident necessarily involves
reasoning based on propensity,” and that “it would be an
inference based on propensity to say that, because a man has
intentionally killed a wife, he is therefore more likely to have
intentionally killed this wife”). For the purposes of this opinion,
however, I assume that the logic of paragraphs 49–51 of the
Verde opinion is sound (even though it may not be), and point
out additional flaws in Verde’s rickety structure that I believe
may exist even if its underlying logic is sound.

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 State v. Lane

difficult—if not entirely impossible—to separate the permissible
“probability” inference from the impermissible “propensity”
inference. I explained in Murphy that I fear this problem might
exist in cases in which the Doctrine is applied to admit prior bad
acts for the purpose of rebutting a defendant’s claim that the
complaining witness is lying. See 2019 UT App 64, ¶¶ 57–59
(Harris, J., concurring). I see the potential for this same problem
in cases in which the Doctrine is applied to admit prior bad acts
for the purpose of rebutting a claim of self-defense.

¶41 In cases like this one, in which a defendant stands accused
of a violent act but claims he acted in self-defense, we may be
less likely to believe the defendant’s claims if presented with
evidence that he has made this claim before, whether
successfully or unsuccessfully. But the reason we are less likely to
credit the defendant’s claim in this context has little to do with
probability and a lot to do with the easily drawn inference that
the defendant might be the type of person who commits violent
acts. The fact that he has been previously involved in violent acts
is not usually something that is based on randomness or fortune
(like winning the lottery or being struck by lightning). It is based
on a whole host of factors, most of which involve non-random,
purposeful decisions on the part of the defendant and others.
Specifically, becoming involved in violent acts involves human
decision-making, and a person’s state of mind when he commits
those acts—e.g., whether the person acted in self-defense—is
also volitional rather than random.

¶42 That is, in many instances, the reasons a person is
involved in incidents resulting in violent acts, and the reasons a
person forms a particular mens rea while doing so, are not
probability-based, and therefore I wonder about the wisdom of
trying to apply a probability-based doctrine in this context. The
fact that Person A is much more likely than Person B to be
involved in a violent scrape and then claim self-defense would
seem to have a lot more to do with propensity or with other non-

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 State v. Lane

random environmental factors than it does with simple
mathematical probabilities. See, e.g., Paul F. Rothstein, Intellectual
Coherence in an Evidence Code, 28 Loy. L.A. L. Rev. 1259, 1262–63
(1995) (“The essence of this probable guilt argument is that there
is a disparity between the chances, or probability, that an
innocent person would be charged so many times and the
chances, or probability, that a guilty person would be charged so
many times. If there is such a disparity, however, it is only
because a guilty person would have the propensity to repeat the
crime. If it were not for the propensity to repeat, the chances, or
the probability, that an innocent person and a guilty person
would be charged repeatedly would be identical. Hence, the
argument hinges on propensity and runs afoul of the first
sentence of Rule 404(b).”). At a minimum, it seems that the
variables involved in running a metaphorical probability
calculation in this context may be too numerous to make the
calculation meaningful in any given case.

¶43 In my view, even assuming the soundness of Verde’s
underlying probability logic, see supra ¶ 39 note 8, and even
assuming there may exist scenarios in which that logic could be
usefully applied in a self-defense (or other volitional) case, the
entire exercise is a nonstarter unless two threshold conditions
can be met. First, the party asking the court to admit prior bad
acts evidence pursuant to the Doctrine should be able to clearly
articulate what the event of “rare misfortune” is that triggers the
Doctrine’s application. See Verde, 2012 UT 60, ¶ 47. Where the
Doctrine is applied to rebut a claim of mistake or accident, this is
usually easily accomplished: the event of rare misfortune is, say,
the death of a bride in a bathtub, or the mistaken taking of a
horse. See id. ¶¶ 48–49. In the self-defense context (as in the
fabrication context, see Murphy, 2019 UT App 64, ¶¶ 57–59
(Harris, J., concurring)), it is often difficult to articulate what that
event is, as illustrated in this case. Is the event of rare misfortune
that Lane was previously involved in fights? Is it that Lane was
previously involved in fights for which he claimed that he acted

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 State v. Lane

in self-defense? Or is it that Lane was previously involved in
fights in which he employed a knife? I cannot tell, and (even
upon questioning at oral argument) neither can the State. None
of these options involve random events of chance. As in this
case, if it is difficult to clearly identify the event of “rare
misfortune,” it raises the likelihood that the evidence of prior
acts is not coming in for permissible probability purposes but,
instead, is coming in for impermissible propensity purposes.
Moreover, without clear identification of the event of “rare
misfortune,” it becomes difficult to determine whether the “four
foundational requirements,” which are prerequisites to the
application of the Doctrine, have been satisfied. See Verde, 2012
UT 60, ¶¶ 57–61 (listing materiality, similarity, independence,
and frequency as the “four foundational requirements” of the
Doctrine).

¶44 Second, the party asking the court to admit prior bad acts
evidence pursuant to the Doctrine should be able to clearly
articulate both (a) the purposes for which the evidence can
permissibly be used and (b) the purposes for which the evidence
cannot permissibly be used. If these purposes cannot be
articulated in a way that a lay juror can readily understand, that
is a good clue that the Doctrine is being misapplied. Again, this
case is a good example. The jury was instructed that it could
“consider [the prior bad acts] evidence, if at all, for the limited
purpose of self-defense,” but that the “evidence was not
admitted to prove a character trait of the defendant or to show
that he acted in a manner consistent with such a trait.” I confess
that I do not know what this instruction means. No mention at
all is made of any probability-based inference that might be
permissibly drawn with regard to evidence properly admitted
pursuant to the Doctrine. No meaningful guidance is given
regarding the purposes for which the evidence may, and may
not, be used. I cannot imagine lay jurors having any idea what to
make of an instruction like this, and if the jury is not clearly

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 State v. Lane

instructed, the risk of jurors resorting to impermissible
propensity inferences is too great.

¶45 All of which leads me not only to conclude that the
Doctrine was misapplied in this case, but also to wonder
whether the Doctrine could ever be properly applied in a self-
defense context. No Utah appellate court has yet held that
application of the Doctrine to cases in which the defendant
claims self-defense is proper.9 Some other courts have applied
the Doctrine to allow prior acts evidence in this context, see, e.g.,
State v. Monroe, 364 So. 2d 570, 571–73 (La. 1978), but those cases
are rare, and it is therefore far from established that the Doctrine
applies in self-defense cases. I urge parties in future cases to
raise and fully brief this issue, instead of—as the parties did
here—simply assuming that the Doctrine applies in this context.

II

¶46 My second set of concerns has to do with the manner in
which the Doctrine was specifically applied in this case. That is,

9. The matter was discussed at some length in State v. Labrum,
2014 UT App 5, 318 P.3d 1151, but this court ultimately stopped
short of deciding whether the Doctrine could be employed for
this purpose because it determined that the prior bad acts
evidence was admissible on another ground. Id. ¶¶ 29–31. To
date, our supreme court has not addressed the issue, although it
has generally espoused a remarkably broad view of the
Doctrine’s applicability, holding that it applies in other contexts
also involving non-random volitional acts, including to rebut
defenses of fabrication, see Verde, 2012 UT 60, and consent, see
State v. Lowther, 2017 UT 34, ¶ 25, 398 P.3d 1032. For the reasons
set forth herein and elsewhere, see State v. Murphy, 2019 UT App
64, ¶¶ 45–65 (Harris, J., concurring), my view is that these
decisions may merit reexamination.

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 State v. Lane

assuming that the Doctrine could be meaningfully applied to
admit relevant, non-character prior acts evidence in the self-
defense context, the Doctrine was misapplied in this case in
several material ways.

¶47 First, as the majority ably describes, the district court did
not conduct a separate rule 403 analysis, a step that is “‘essential
to preserve the integrity of rule 404(b).’” See supra ¶ 20 (quoting
Verde, 2012 UT 60, ¶ 18). Even if a court concludes that, under
governing case law, the Doctrine can logically apply, and even if
it concludes that the Doctrine’s “four foundational
requirements” for application are met, see Verde, 2012 UT 60,
¶ 57, the court still must analyze the evidence under rule 403 to
ascertain whether the probative value of the admissible part 10 of
the evidence is substantially outweighed by the danger of unfair
prejudice, including the danger of the jury drawing an
impermissible propensity inference. The district court failed to
take this important step.

¶48 Second, as I have already mentioned, the instruction
given to the jury was inadequate, and did not meaningfully
assist the jury in navigating its way through a logical and
metaphysical minefield. “A complete, properly worded limiting

10. Propensity evidence has great probative value, which is in
part why our rules of evidence ban it. See David P. Leonard, The
New Wigmore: A Treatise on Evidence: Evidence of Other Misconduct
and Similar Events § 1.2, at 6–7 (2009) (stating that propensity
evidence is excluded “not because it has no appreciable
probative value, but because it has too much”). In conducting an
appropriate rule 403 balancing in this context, the “probative”
side of the equation should include only the value of any
admissible probability inferences, and should not include the
value of any impermissible propensity inferences (which should
be assessed on the “prejudice” side of the equation).

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 State v. Lane

instruction has two prongs. The negative prong forbids the jury
from using the evidence for the verboten purpose. In contrast,
the affirmative prong explains how the jury is permitted to
reason about the evidence.” Edward J. Imwinkelried, Criminal
Minds: The Need to Refine the Application of the Doctrine of Objective
Chances as a Justification for Introducing Uncharged Misconduct
Evidence to Prove Intent, 45 Hofstra L. Rev. 851, 873 (2017). The
instruction given in this case was conclusory, and informed the
jury that it could not draw a character inference but could use
the evidence for “self-defense.” This is precisely the sort of
instruction that commentators have rightly criticized. See id. at
873–74, 876 (offering as an example of an “inadequate”
instruction one where, “[a]fter stating the negative prong of the
instruction, in the affirmative prong the judge . . . give[s] the jury
only the guidance that they may use the evidence for the
purpose of proving ‘intent,’” and noting that this sort of
instruction “can lead the jury into improper character
reasoning”). Assuming that, on the facts of this case, it were
possible to articulate purposes for which the evidence could and
could not be used, those purposes needed to have been spelled
out in much more detail than they were.

¶49 Third, I am concerned about the manner in which the
district court analyzed the “frequency” factor. See Verde, 2012 UT
60, ¶ 61. The point of this factor is to ensure that the event of
“rare misfortune” in question has been visited upon the
defendant “more frequently than the typical person.” Id. ¶¶ 47,
61 (quotation simplified). Assuming that one can pinpoint what
the event of rare misfortune is in this instance, and that one can
meaningfully apply probability (rather than propensity)
reasoning to a situation involving several levels of human
volition, our case law then requires the court to compare this
defendant to a “typical person” to ascertain whether the event
occurred to the defendant with greater frequency. In this case,
the court’s complete analysis on this point was as follows: “Here,
Defendant has been involved with three serious assaults in four

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years. Even given his chronic homelessness and the higher
frequency of assault surrounding shelters, the rate of
Defendant’s involvement in these assaults is not mere accident.”
I find this analysis lacking. The court did not take any evidence
to establish the profile of a “typical” resident of that part of Salt
Lake City, or any evidence intended to establish a baseline
regarding the number of physical altercations per year in which
such a resident might typically be involved. Under these
circumstances, I see no reasoned basis for the court’s intuition-
level conclusion that a person living in that part of the city
becoming involved in one fight every fifteen months is
necessarily “frequent.” Bound up in that analysis are various
assumptions by the court—arrived at without evidence—of what
living conditions are like for homeless citizens of Salt Lake City.
This is an instance where the court, in my view, needed to take
additional evidence—from experts, if necessary—to arrive at a
sound conclusion about whether the number of assaults in
which Lane was involved was atypical for a resident of that part
of town.

III

¶50 But I question whether our courts should even be asked to
engage in inquiries like that, given the bigger problems I see
with the application of the Doctrine to admit prior acts evidence
in cases in which a defendant claims that he acted in self-
defense. Because of my various concerns about the district
court’s admission, pursuant to the Doctrine, of Lane’s prior
assaults, I share the majority’s view that Lane was not afforded a
fair trial, and therefore I concur in the majority’s disposition. I
also urge litigants in future cases to raise and brief issues they
might see with application of the Doctrine, in this or other
contexts, in order to enable the Doctrine’s application in Utah to
be reexamined in an appropriate case.

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