State v. Richins

2020 UT App 27

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
RONALD JAY RICHINS,
Appellant.

Opinion
No. 20180643-CA
Filed February 21, 2020

Third District Court, West Jordan Department
The Honorable Katie Bernards-Goodman
No. 171403503

Sarah J. Carlquist, Attorney for Appellant
Sean D. Reyes, Thomas B. Brunker, and Nathan Jack,
Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGE DIANA HAGEN concurred. JUDGE GREGORY K.
ORME concurred, with opinion.

CHRISTIANSEN FORSTER, Judge:

¶1 A jury convicted Ronald Jay Richins of lewdness. He now
appeals, asserting that the district court erred in allowing
evidence of four previous instances of similar lewd behavior to
be introduced at trial. We affirm.

BACKGROUND

¶2 On a May 2017 morning, a fifteen-year-old girl (Victim)
was leaving her house for school, driven by her mother (Mother)
in the family minivan. Victim saw Richins in his yard as they
backed out of their driveway and drove past his house. Victim
 State v. Richins

was accustomed to seeing Richins every morning, noting, “He
always stands out in his yard and chain smokes and looks over
into our yard.” But this morning, the situation was a little
different. Victim said, “[H]e wasn’t smoking this morning. His
hands were down by his genital area, and there was an
abnormal amount of flesh, and he was clearly holding
something. . . . And he was wearing dark Levis, so I could tell
that there was flesh there . . . .” Victim elaborated that Richins’s
hands were making a “back and forward motion” and “[i]t kind
of looked like he might have been masturbating.” But Victim
admitted, “From where I was, of course it wasn’t 100 percent
clear to me, but it certainly looked like he was holding
something down near his pockets. So maybe his thumbs were in
his pockets . . . .” Victim recalled feeling “disgusted” and telling
Mother not to look. Naturally, Mother looked, exclaiming, “Oh
my gosh.” Mother continued the drive to school, all the while
asking Victim about the incident. Mother reported the incident
to the police after she returned home.

¶3 A few months later, a detective interviewed Victim,
Mother, and Richins. 1 Victim told the detective that Richins’s
zipper was down, the flaps of his jeans were open, and it
appeared that his penis was in his hands. But she also told the
detective it was possible that Richins had his hands in his
pockets, as opposed to touching his genitals, admitting that she
“didn’t exactly see what he had in his hands.” Mother told the
detective that she “took a quick glance” at Richins after being
alerted by Victim and that she recalled that he had his hands
down in front. But she did not claim to see his zipper open or
motions that indicated he was masturbating. For his part,

1. The interviews took place in late August, about three months
after the incident. The record is unclear about the reason for the
delay, other than the detective saying, “It takes some time for us
to get them.”

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 State v. Richins

Richins denied any misconduct, even after the detective told him
that two witnesses had “positively” said he was exposing
himself. But Richins admitted that he was standing in the yard
on the day in question, most likely smoking a cigarette. Richins
also told the detective that Victim’s father had come over to talk
to him sometime after the incident.

¶4 The State charged Richins with one count of lewdness and
filed notice before trial of its intent to use evidence of Richins’s
prior acts of lewdness pursuant to rule 404(b) of the Utah Rules
of Evidence. At a hearing on the rule 404(b) motion, the State
argued that evidence of Richins’s prior acts of and convictions
for lewdness was admissible for a proper noncharacter purpose,
namely to show that Victim was not mistaken in her statement
that she saw Richins exposing himself that morning. The State
additionally argued that the rule 404(b) evidence was admissible
pursuant to the doctrine of chances. Specifically, the State
intended to introduce evidence of four separate prior incidents
in which Richins had exposed himself. Because Richins asserts
that the district court erred in admitting the evidence of those
prior acts, we describe the incidents in some detail.

¶5 In November 2013, Richins, standing under a stairwell of
an apartment building, was staring at a woman while she was
waiting at a bus stop. The woman saw Richins pull down his
pants, expose his genitals, and begin touching himself. Richins
was found guilty of lewdness for this act.

¶6 In September 2007, Richins pulled up next to a school bus
transporting junior-high students. Richins mouthed, “I love
you,” to some of the girls on the bus, who noticed that he was
fondling his exposed genitals as he was driving alongside.
Richins pleaded guilty to two counts of lewdness.

¶7 In July 2007, two women who were horseback riding
noticed Richins watching them and began to feel uneasy. The
women encountered Richins down the trail, where he had his

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 State v. Richins

pants down to his thighs and was masturbating. The women
continued on, but they ran into Richins again about 100 yards
down the trail, where they saw him masturbating a second time.
Richins confessed to exposing himself and masturbating.

¶8 The final incident happened in May 2007 and involved
Richins exposing himself to a woman in a parking lot. The
woman recalled feeling uncomfortable as she noticed Richins,
sitting in his truck a few stalls away, watch her enter a store.
When she finished shopping and came out of the store, the
woman reported that Richins had parked his truck, windows
rolled down, right next to her vehicle. As she walked past his
truck, she saw that Richins had exposed himself and was
masturbating. Richins said “hi” to her as she passed.

¶9 The district court granted the State’s motion to admit the
other-acts evidence. The court reasoned that Richins saying, “I
didn’t do it,” was roughly equivalent to “claiming [that Victim
is] either fabricating or mistaken” and that admitting the other-
acts evidence therefore would be for “a proper noncharacter
purpose.” In fact, Richins’s trial counsel expressly agreed with
the district court that Richins’s defense of “I didn’t do it” meant
that Victim “didn’t see what she thought she saw. She was
mistaken in what she saw.” Rather than providing details of the
prior acts being admitted, the parties agreed that the following
stipulation be presented at trial: “On four separate occasions
from 2007 to 2013 four different women indicated that Mr.
Richins exposed his penis to them and touched his penis in their
presence. None of these women knew Mr. Richins, or each other,
or welcomed his conduct. Two of these incidents resulted in
convictions.” The district court also ruled that the other-acts
evidence was not unfairly prejudicial pursuant to rule 403 of the
Utah Rules of Evidence. The court stated that while the
“proposed evidence is clearly prejudicial,” “it would not result
in ‘unfair prejudice’ that substantially outweighs its probative
value.” The court reasoned, “[B]ecause all of the prior victims

20180643-CA 4 2020 UT App 27
 State v. Richins

are discussing [a] lewdness allegation and not a more serious
sexual offense[,] the prejudicial effect of the evidence will be
muted.”

¶10 At trial, the State briefly referenced the stipulation about
Richins’s other acts in its opening statement: “You will hear
evidence that four separate women on four separate occasions
indicated that from 2007 to 2013, Mr. Richins exposed himself to
them. Reached down, touched his penis. Because of this
evidence and the evidence of [Victim], we’ll be asking you to
return a guilty verdict.” In his opening statement, Richins’s
counsel explained that it was well known in the neighborhood
that his client had “been in trouble before” and that Victim knew
of Richins’s reputation and “thought that he was creepy.”

¶11 In her testimony, Victim admitted that she had never
talked to Richins, who was her next-door neighbor, even though
she had lived in the neighborhood since she was about seven
years old. She explained that her parents told her “not to go near
[Richins] or his house because all [their] neighbors warned
[them] about him.” When she was younger, she did not know
why her parents issued the warning, but by the time of the
incident, Victim knew that Richins was on the sex offender
registry because her parents had informed her of his status.
However, Victim clarified that she did not know the reason
Richins was on the registry and that she had never looked up
Richins on the registry. Victim admitted that she thought Richins
was “creepy” and that he made her feel “uncomfortable.”

¶12 Mother testified that she had been made aware by
multiple neighbors that Richins was required to register as a sex
offender and that she warned Victim, “Don’t go into his yard.
Don’t talk to him. Just stay away from the neighbor.” However,
Mother denied ever telling Victim why Richins was on the
registry, clarifying that she did not tell Victim about prior
allegations or why Richins was on the registry because she

20180643-CA 5 2020 UT App 27
 State v. Richins

herself did not know. She also testified that Victim typically tries
not to look in the direction of Richins’s yard because “it’s an
uneasy feeling that he’s always looking into [their] yard.”
Mother admitted that she spoke to Richins only once during the
ten years she lived in the neighborhood. When asked if she ever
shared her impression that there was “something creepy” about
Richins with Victim, Mother responded, “I don’t think that she
needed me to say anything about it. I think that anybody, any
reasonable person in our situation would feel the same way.”
Mother shared the following example to illustrate her point:

Any time [Victim] or I were out in the yard,
[Richins] would come and stand [in his yard] and
smoke cigarettes and stand and look directly into
our yard. He would never stand and look across
the street. He would never look into his own yard.
He was always peering into our yard. . . . When I
would be working in the garden, he would come
and stand right at the fence line and look into the
garden. There was multiple occasions that I could
literally lay back and probably touch his feet he
was standing so close, and he’d just stand out there
and smoke.

Richins’s counsel pressed Mother on her reason for avoiding
Richins, asking her, “[D]o you think your feeling fearful of
[Richins] or feeling uncomfortable around [Richins] could have
anything to do with living next to someone for ten years and
never talking to him?” Mother denied any such connection, and
instead testified, “Had I never heard that he was on the sex
offender registry, and he still displayed the behavior that he did,
he would still make me uneasy.”

¶13 The court read the stipulation to the jury at the close of
the State’s case and again during recitation of the jury
instructions. Jury Instruction 31, which was read immediately

20180643-CA 6 2020 UT App 27
 State v. Richins

after the stipulation, cautioned jurors that they “may consider
this evidence, if at all, for the following limited purposes. One, to
rebut a claim that a witness was mistaken [in] what she . . . [saw]
on the date in question. Two, to rebut the idea that a witness’s
testimony was the result of fabrication.” The instruction also
stated,

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 crime
charged in this case, for that crime only. You may
not convict a person simply because you believe he
may have committed some other acts at another
time.

¶14 In his closing statement, Richins’s counsel expressly
stated that years of being warned about the danger posed by
Richins caused Victim to have a “confirmatory bias” against him:
“[I]f over ten years you’ve been told by your parents, ‘This guy
is creepy. . . . And you are not to ever talk to him. You are not to
ever engage him,’ I’m just saying to you that’s going to create
some sort of a bias against this person.” Richins’s counsel
suggested that Victim was thus “preconditioned to think that
something bad might happen.” Counsel argued that instead of
actually seeing Richins expose himself, perhaps Victim was “so
prejudiced or so biased or so afraid of . . . Richins that she’s just
mistaken.”

¶15 The jury convicted Richins of lewdness, and Richins
appeals.

ISSUE AND STANDARD OF REVIEW

¶16 The sole issue is whether the district court erred in
admitting evidence of Richins’s prior acts of lewdness pursuant

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 State v. Richins

to rule 404(b)(2) of the Utah Rules of Evidence. “Appellate
courts review a trial court’s decision to admit character evidence
and prior bad acts under an abuse of discretion standard.” State
v. Balfour, 2018 UT App 79, ¶ 21, 418 P.3d 79 (quotation
simplified).

ANALYSIS

I. Plausible Noncharacter Purpose

¶17 Richins first argues that the district court erred in
admitting evidence that he had exposed himself and touched his
genitals on four different occasions and in front of four different
women. But we conclude that the court acted within the scope of
its discretion because this evidence was admitted for a plausible
noncharacter purpose pursuant to rule 404(b) of the Utah Rules
of Evidence.

¶18 Rule 404(b) states 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).
Thus, if the evidence’s purpose is “only to show the defendant’s
propensity to commit crime,” it must be excluded. State v.
Nelson-Waggoner, 2000 UT 59, ¶ 18, 6 P.3d 1120 (quotation
simplified). But such “evidence may be admissible for another
purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Utah R. Evid. 404(b)(2). For the following
reasons, we conclude that the district court did not err in
admitting the other-acts evidence.

¶19 “Rebutting a fabrication defense does not appear in
the list of permissible noncharacter purposes set out in rule
404(b).” State v. Balfour, 2018 UT App 79, ¶ 31, 418 P.3d 79. But

20180643-CA 8 2020 UT App 27
 State v. Richins

this list is not exhaustive. Rule 404(b) is an
inclusionary rule. Prior bad act evidence 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. Thus, so
long as the evidence is not aimed at suggesting
action in conformity with bad character, it is
admissible under rule 404(b).

State v. Pullman, 2013 UT App 168, ¶ 31, 306 P.3d 827 (quotation
simplified).

¶20 Indeed, our supreme court has adopted the view that
rebutting a fabrication or false accusation defense is a
permissible noncharacter purpose for admitting other-acts
evidence. State v. Verde, 2012 UT 60, ¶ 46, 296 P.3d 673, abrogated
on other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016. As
stated in Verde,

In some circumstances, evidence of prior
misconduct can be relevant under the so-called
“doctrine of chances.” . . . It is a theory of logical
relevance that rests on the objective improbability
of the same rare misfortune befalling one
individual over and over. Under this analysis, . . .
evidence of past misconduct may tend to
corroborate on a probability theory that a witness
to a charged crime has not fabricated testimony,
because it is unlikely that several independent
witnesses would concoct similar accusations.

Id. ¶ 47 (quotation simplified). 2 And as the Verde court made
clear, the admission of other-acts evidence is not limited to

2. Our supreme court’s articulation of the doctrine of chances is
controlling, see Eldridge v. Johndrow, 2015 UT 21, ¶ 20 n.3, 345
(continued…)

20180643-CA 9 2020 UT App 27
 State v. Richins

rebutting a defense of intentional fabrication. It also extends to
false accusations more broadly:

An innocent person may be falsely accused or suffer
an unfortunate accident, but when several
independent accusations arise or multiple similar
“accidents” occur, the objective probability that the
accused innocently suffered such unfortunate
coincidences decreases. At some point, the
fortuitous coincidence becomes too abnormal,

(…continued)
P.3d 553 (“Lower courts are obliged to follow the holding of a
higher court, as well as any judicial dicta that may be announced
by the higher court.” (quotation simplified)), but we note that
the application of the doctrine in certain contexts has faced
recent criticism, see State v. Lane, 2019 UT App 86, ¶¶ 37–45, 444
P.3d 553 (Harris, J., concurring); State v. Murphy, 2019 UT App
64, ¶¶ 53–63, 441 P.3d 787 (Harris, J., concurring). Like Judge
Harris, we question the wisdom of applying the doctrine of
chances to rebut charges of fabrication or mistake on the part of
an accusatory witness. See Murphy, 2019 UT App 64, ¶¶ 57–59.
The doctrine of chances, as currently applied, permits the
prosecution to use prior accusations to infer guilt based on the
theory that an innocent person is statistically unlikely to be the
subject of multiple false accusations. But the logical relevance of
such evidence is premised not on the improbability of a person
being falsely accused multiple times, but on the improbability of
a person being falsely accused this time if the prior accusations
are true. In other words, the conclusion that the witness saw
Richins expose himself is more likely only if the jury assumes
that the prior accusations are true, meaning that Richins exposed
himself to strangers on at least four other occasions. When used
in this way, “it becomes extremely difficult to distinguish such
evidence from straight-up propensity evidence.” See id. ¶ 59.

20180643-CA 10 2020 UT App 27
 State v. Richins

bizarre, implausible, unusual or objectively
improbable to be believed.

Id. ¶ 49 (emphasis added) (quotation simplified); see also State v.
Lowther, 2017 UT 34, ¶ 23, 398 P.3d 1032 (“[T]he doctrine of
chances is not limited to cases where the defendant accuses a
complaining witness of fabricating her testimony . . . .”).

¶21 Richins denies that he asserted as part of the defense
that Victim “fabricated or intentionally lied about the claim
she raised against him,” stating that his defense was instead
that Victim was mistaken in her belief that she saw Richins
exposing himself because she was “biased,” “prejudiced,”
and “preconditioned” to think that Richins was going to do
something wrong or “creepy.” But under the principles set
forth in Verde, this distinction between intentional fabrication
and involuntary bias is without significance in our analysis.
Whether Victim intentionally lied about seeing Richins
expose himself or whether she subconsciously jumped to
the conclusion that he exposed himself does not change Richins’s
basic assertion that he was falsely accused. And while Richins
may not assert that Victim intentionally fabricated the
accusation, there is no doubt that his defense centered on the
notion that Victim at least mistakenly accused—whether
through bias or preconditioning—Richins of exposing himself.
As Richins’s counsel argued to the jury in closing, “[I]f you have
a bias to begin with, you certainly can be mistaken if you see
something that’s ambiguous but you are preconditioned to think
something else. You’re preconditioned to think that something
bad might happen.”

¶22 Thus, we conclude that the district court did not err
in permitting the State to offer evidence of Richins’s prior acts
of exposing himself to other women to rebut Richins’s
defense that Victim falsely accused him of exposing himself to
her.

20180643-CA 11 2020 UT App 27
 State v. Richins

II. Foundational Requirements of the Doctrine of Chances

¶23 Richins next argues that the other-acts evidence was
inadmissible under the doctrine of chances because the State did
not satisfy all the doctrine’s foundational requirements. We
disagree. The four foundational requirements for the admission
of evidence under the doctrine of chances are materiality,
similarity, independence, and frequency. State v. Lowther, 2017
UT 34, ¶ 35, 398 P.3d 1032. These “foundational requirements
assess whether a body of prior bad acts evidence is being
employed for a proper, non-character statistical inference.” Id.
¶ 21. We address the materiality, similarity, and frequency
prongs as they relate to Richins’s prior acts. 3

¶24 “First, under materiality, the issue for which the
uncharged misconduct evidence is offered must be in bona fide
dispute.” Id. ¶ 35 (quotation simplified). The issue in “bona fide
dispute” here was whether Victim falsely accused Richins of
exposing himself and masturbating in front of her. Richins said
he did not do it. Victim said that she saw him do it, but she
acknowledged that she might have been mistaken. Richins
responded that Victim was mistaken in what she saw because
she “knew Richins was a registered sex offender . . . and
therefore may have, consciously or unconsciously, used that
information to shift her doubts [about Richins’s behavior on the
day in question] toward something sexual, toward something

3. The independence prong “recognizes that . . . each accusation
must be independent of the others because the existence of
collusion among various accusers would render ineffective the
comparison with chance repetition.” State v. Lowther, 2017 UT 34,
¶ 37, 398 P.3d 1032 (quotation simplified). Because Richins
conceded below—and does not challenge on appeal—the
satisfaction of the independence requirement, we will not
analyze it here.

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 State v. Richins

nefarious.” Thus, the other-acts evidence was admitted to rebut
Richins’s false-accusation defense and in support of the State’s
position that Victim’s testimony accurately described what
happened.

¶25 Second, as to similarity, “each uncharged incident must
be roughly similar to the charged crime. The required similarity
here need not be as great as that necessary to prove identity
under a ‘pattern’ theory. But there must be some significant
similarity between the charged and uncharged incidents to
suggest a decreased likelihood of coincidence . . . .” State v. Verde,
2012 UT 60, ¶ 58, 296 P.3d 673 (quotation simplified), abrogated
on other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016.
“The similarities between the charged and uncharged incidents
must be sufficient to dispel any realistic possibility of
independent invention.” Lowther, 2017 UT 34, ¶ 36 (quotation
simplified). Here, the incident involving Victim was not just
“roughly similar” to Richins’s prior acts of lewdness, it was
strikingly similar—Richins, after having stared at a woman,
exposed himself in public and began to masturbate in her
presence.

¶26 Richins argues that while the charged offense and
Richins’s prior acts fall into the same general category of
conduct, the prior “incidents’ context render[s] them dissimilar
from the incident at issue here.” Specifically, Richins asserts that
the prior incidents involved exposing himself to strangers, while
the incident here involved a neighbor: “Exposing oneself to
strangers is different from exposing oneself to someone [one
knows], like a neighbor, because the risk of getting away with
the lewd conduct is presumably different depending on whether
the victim knows or personally recognizes the perpetrator.” But
Richins downplays the riskiness of his prior acts in making this
argument. For two of the prior incidents, Richins was in his own
vehicle when he exposed himself, making it very easy to identify
him. The other two incidents happened in areas where Richins

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 State v. Richins

was also easily identified and apprehended. Richins also finds
meaningful that Victim knew he was required to register as a sex
offender while none of the women in the prior incidents had this
knowledge, suggesting that Victim’s account merely echoed the
previously reported behavior. But in making this assertion,
Richins fails to mention that neither Victim nor Mother were
aware of the specific conduct that led Richins to register as a sex
offender. It is unlikely that Victim and Mother would have
invented conduct that turned out to be so similar to Richins’s
earlier episodes. 4

¶27 Third, as to frequency, “the defendant must have been
accused of the crime or suffered an unusual loss more frequently
than the typical person endures such losses accidentally.” Verde,
2012 UT 60, ¶ 61 (quotation simplified). Here, the State
presented four strikingly similar prior acts of lewdness
committed by Richins. In response, Richins argues that the State
did not present “real data related to the frequency rate by which
men in the relevant population may be accused of exposing
themselves. Rather, the [State] immediately asked the judge to,
essentially, rely on ‘her common conception’ to make a decision

4. Richins also finds significance in Victim’s doubt expressed to
the detective about what she may have seen compared to the
unequivocal declarations of the victims in the prior acts. But this
argument misses the mark. Her expressed doubt is what
facilitates Richins’s suggestion that Victim’s accusation was a
product of mistake, while the unequivocal declarations of the
prior victims go a long way in dispelling this suggestion. In any
event, the doctrine of chances requires that “each uncharged
incident must be roughly similar to the charged crime,” not that
a witness render an unequivocal account of the charged crime.
See State v. Verde, 2012 UT 60, ¶ 58, 296 P.3d 673 (quotation
simplified), abrogated on other grounds by State v. Thornton, 2017
UT 9, 391 P.3d 1016.

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 State v. Richins

regarding frequency.” Thus, Richins argues that “[t]o determine
frequency here, the question should not be whether Richins has
been accused of lewdness more than the typical person, it should
be whether he has been accused more than the typical registered
sex offender because [Victim], unlike his past accusers, knew he
was a registered sex offender.” But we note that Utah courts
have never required such tailoring of data to reflect the number
of accusations against a specific population. Richins cites no case
law—from any jurisdiction—in support of his position. 5
Furthermore, Richins again ignores that Victim did not know the
details of Richins’s past acts. She knew he was on the registry,
but she did not know the specific conduct that landed him there.
In short, we are not persuaded that being accused of the same
lewd conduct on five separate occasions by five different women
is in any way typical of the comparative population, even if the
inquiry is limited to those listed on the registry.

¶28 We conclude that the other-acts evidence presented by the
State satisfied the doctrine of chances’ foundational
requirements and that the State therefore offered the evidence to
show permissible statistical inferences.

III. Prejudice

¶29 Finally, Richins contends that even if the other-acts
evidence was relevant and admitted for a noncharacter purpose,
the probative value of the other-acts evidence was substantially
outweighed by the danger of unfair prejudice. See Utah R. Evid.
403 (“The court may exclude relevant evidence if its probative

5. Utah courts have typically applied the frequency prong of the
doctrine of chances without resort to statistical data, instead
relying on common human experience. State v. Lopez, 2018 UT 5,
¶ 59, 417 P.3d 116; Verde, 2012 UT 60, ¶ 61. But see Murphy, 2019
UT App 64, ¶ 26.

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 State v. Richins

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.”). As this court recently stated,

Even 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.

State v. Lane, 2019 UT App 86, ¶ 22, 444 P.3d 553 (quotation
simplified). “Of importance here is that the probative value of
the evidence must be substantially outweighed by the danger of
unfair prejudice; and unfair prejudice results only where the
evidence has an undue tendency to suggest decision upon an
improper basis. Given this bar, we indulge a presumption in
favor of admissibility.” State v. Lucero, 2014 UT 15, ¶ 32, 328 P.3d
841 (quotation simplified), abrogated on other grounds by State v.
Thornton, 2017 UT 9, 391 P.3d 1016. Thus, the question here is not
whether the other-acts evidence identified in the stipulation
prejudiced Richins, for it certainly did. That is, revealing to the
jury Richins’s past lewd conduct undoubtedly cast him in a bad
light. But as we have been told by our supreme court, the
probative value of several witnesses’ independent testimony of
substantially similar events is high, and the frequency of the
occurrence of those events justifies a rule 404(b) inference. So the
question is whether the statistical inference (namely, the unlikely
chance that Victim mistakenly saw nearly identical behavior
from Richins that four other women had seen) is substantially
outweighed by unfair prejudice (namely, that the jury would
base its decision solely on Richins’s propensity to commit lewd
acts).

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 State v. Richins

¶30 Here, the State argued the other-acts evidence was
admissible to make “a proper, non-character statistical inference:
the objective improbability of the same rare misfortune befalling
one individual over and over.” State v. Lowther, 2017 UT 34, ¶ 39,
398 P.3d 1032 (quotation simplified). That four other women saw
Richins do essentially the same thing as Victim said she saw him
do supports the inference that Victim did not falsely accuse
Richins. In conducting its rule 403 analysis, the district court
reasoned that because evidence of the previous lewd acts was no
more egregious or offensive than Victim’s testimony, any
prejudice the other-acts evidence, might create was too minimal
to substantially outweigh its probative value. Thus, the district
court concluded that introducing the other-acts evidence did not
amount to unfair prejudice:

The proposed evidence is clearly prejudicial but it
would not result in “unfair prejudice” that
substantially outweighs its probative value. The
court finds that because all of the prior victims are
discussing [a] lewdness allegation and not a more
serious sexual offense[,] the prejudicial effect of the
evidence will be muted.

¶31 While a more thorough consideration of rule 403 would
have aided our review on appeal, we agree with the district
court’s ultimate determination that the potential for prejudice or
confusion from admitting the evidence of Richins’s other lewd
behavior did not substantially outweigh the probative value of
that evidence. First, we have already concluded that the State
offered the other-acts evidence for the purpose of rebutting
Richins’s mistake and fabrication defenses. See supra ¶¶ 17–22.
At trial, the State emphasized that the other-acts evidence was
relevant to establish the improbability that Victim was mistaken
in what she saw rather than Richins’s general propensity.
Moreover, the parties agreed to a stipulation that greatly
sanitized the facts of the prior incidents and that eliminated the

20180643-CA 17 2020 UT App 27
 State v. Richins

opportunity for live victim testimony, which most certainly
would have had a greater impact on the jury. Most significantly,
the district court instructed the jury that the evidence of
Richins’s prior acts was to be used only for the limited purpose
of rebutting claims of mistake or fabrication and “was not
admitted to prove a character trait of the defendant.” In light of
this limiting instruction, we agree with the State “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.

CONCLUSION

¶32 We conclude that the district court did not err in
admitting the rule 404(b) evidence concerning Richins’s prior
acts because there was a noncharacter purpose supporting its
admission. Furthermore, we conclude that this evidence satisfied
the foundational requirements of the doctrine of chances as
articulated by Verde. And we uphold the district court’s
determination that the prejudice in admitting the other-acts
evidence did not substantially outweigh its probative value.

¶33 Affirmed.

ORME, Judge (concurring specially):

¶34 I concur in the court’s opinion, with the exception of
footnote 2. I am more comfortable with our established
jurisprudence concerning the doctrine of chances than are some
of my colleagues. I do not share the concerns expressed in
footnote 2 and do not join in that part of the court’s opinion.

20180643-CA 18 2020 UT App 27