dissenting:
1 58 I respectfully dissent. While I concur with the lead opinion that the evidence regarding the victim's past acceptance of a ride to school is not prohibited by rule 412, I find it both to be of marginal relevance at best and unlikely to produce a different result on retrial. I would not reverse the trial court on that basis.
$54 As eloquently described in the lead opinion, at issue is evidence regarding an incident when the victim accepted a ride to school from a stranger. The lead opinion finds this evidence to, be particularly telling regarding the dispute between the victim and the defendant as to how it came to be that the victim ended up in the defendant's truck. I see the cireumstances as substantially different: Accepting a ride when without a car and on the way to school, as contrasted to accepting an invitation for a ride when not only already sitting in her own car, but clearly on an errand for her family.
T55 The trial court, in considering the motion for new trial, was required to find, inter alia, that the new evidence proposed would "not be merely cumulative; [and] ... be such as to render a different result probable on the retrial of the case" under our standard in State v. James, 819 P.2d 781, 793 (Utah 1991). The lead opinion sees the proposed evidence as satisfying both of these requirements, while I do not.
T 56 In this case the jury had heard testimony from the victim and the defendant, each relating markedly different versions of the events. The differences between those versions were a central feature of the arguments made by counsel to the jury, and constituted a pivotal question faced by the jury in finding the defendant guilty of kid-naping and sexually assaulting the victim. The defendant's position throughout was that the victim was not truthfully recounting the *818cireumstances under which they ended up in defendant's truck for the sexual encounter. Defendant argues, and the lead opinion agrees, that the victim's acceptance of a ride from a stranger three months prior to the incident in question here somehow demonstrates so strongly that the victim is lying about the incident with the defendant that it will probably result in an acquittal on retrial.
1 57 This court has consistently noted that on appeal, we review the record facts in a light most favorable to the jury's verdict, and we present conflicting evidence only as nee-essary to understand issues raised on appeal. E.g., State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346; State v. Dunn, 850 P.2d 1201, 1205-06 (Utah 1993); see also, eg., State v. Evans, 2001 UT 22, ¶ 2, 20 P.3d 888; State v. Vargas, 2001 UT 5, ¶ 2, 20 P.3d 271; State v. Brown, 948 P.2d 337, 339 (Utah 1997). The following facts were also admitted at trial and before the trial judge in considering whether to grant a new trial. They are worthy of recitation and should be considered with the newly discovered evidence. In my view, they demonstrate that the evidence-both the newly discovered evidence and the already admitted evidence, considered as a whole-was not such that a different result was probable or reasonably likely on retrial.
158 Egan's mother, Stephanie White, testified that when Egan arrived home she "loud[ly] pound[ed] on the door," startling White and White's other daughter, Sophia Adams, who were in the living room watching television. White opened the door and testified that Egan "just stood there. She was shaking; she was hysterical; she was crying, and I had to lead her into the house." White further testified that she and Adams "sat [Egan] on the couch, and we tried talk to her to find out why she was so hysterical." White testified that Egan continued to shake and ery as she sat on the couch and explained that a man with a gun had raped her. Adams also testified that Egan pounded on the door, was visibly shaking and erying, and was very upset. Adams testified that "[Egan] said that a man with a gun had taken her and raped her." |
1 59 White called 911 and took Egan to a local hospital where she was examined. Although no physical injuries were uncovered, the examining nurse testified that "[Egan] was tearful and emotionally distraught," throughout the exam. The nurse testified that Egan was "really closed off, really afraid to be touched, ... having a hard time answering questions, [and having al hard time coping with the examination." Given these additional facts which were admitted at trial, considered in the light most favorable to the jury's verdict, the evidence before the jury was such that a different result is not reasonably likely or probable on retrial.
1 60 In my view the standard of review for a trial court's denial of a new trial also supports affirmance. As noted by the lead opinion, when we review "a trial court's denial of a motion for a new trial, we will not reverse 'absent a clear abuse of discretion by the trial court.!" Supra ¶ 45 (quoting State v. Colwell, 2000 UT 8, ¶ 12, 994 P.2d 177 (quoting State v. Harmon, 956 P.2d 262, 265-66 (Utah 1998))). The lead opinion goes on to correctly note, "we review the legal standards applied by the trial court in denying the motion for correctness." - Supra I 45 (citing, inter alia, State v. Bisner, 2001 UT 99, ¶ 31, 37 P.3d 1073). The trial court was correct to apply the three-criteria standard articulated in State v. James, 819 P.2d 781, 793 (Utah 1991). The application of the three-part standard to the facts, however, is then reviewed under an abuse of discretion standard. Seq, eg., State v. James, 819 P.2d 781, 793 (Utah 1991) ("Trial judges are given a wide range of discretion in determining whether newly discovered evidence or errors which occurred within a trial merit the grant of a new trial."). We grant the trial court discretion in deciding whether to grant a new trial out of recognition of the position of the trial court to give proper weight to and evaluate the credibility of the evidence presented. The trial court is in a far better position than we are as an appellate court to gauge credibility, give weight to the evidence presented, and determine whether, if the newly discovered evidence were presented at a new trial alongside the already admitted evidence, the evidence is such that a different result is probable.
*819Moreover, because the newly discovered evidence would be used as impeachment evidence to contradict Egan's sister's testimony about Egan's dependability, and not as evidence of Egan's sexual proclivity or disposition, a new trial should not be granted in this case. Absent truly exceptional cireum-stances, newly discovered impeachment evidence does not ordinarily warrant a new trial. See State v. Worthen, 765 P.2d 889, 851 (Utah 1988) (citing, inter alia, State v. Brown, 48 Utah 279, 288, 159 P. 545, 549 (1916) (Frick, J., dissenting)).
T62 In this case, because the trial court was correct in using the James standard, the question is whether the trial court abused its discretion in determining that a different result was not probable on retrial. The trial judge, who also heard and saw all of the testimony of the parties, and to whom is assigned the task of determining the likelihood that a different result is probable on retrial, saw the new evidence as not relevant to the charge on trial-whether Egan consented to sexual activity with Martin-and not likely to render a different result for the defendant on retrial. I simply see no clear abuse of discretion in this case. I would defer to the better informed decision of the trial court, and would therefore affirm the denial of the motion for new trial.
1 63 Chief Justice HOWE concurs in Justice WILKINS' dissenting opinion.