State v. Hood

2018 UT App 236

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
HOWARD WAYNE HOOD,
Appellant.

Opinion
No. 20160610-CA
Filed December 20, 2018

Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 131910817

Marshall M. Thompson and Andrea J. Garland,
Attorneys for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which JUDGE
KATE APPLEBY 1 concurred. JUDGE MICHELE M. CHRISTIANSEN
FORSTER concurred in part and concurred in the result,
with opinion.

HAGEN, Judge:

¶1 Howard Wayne Hood appeals his convictions for rape
and forcible sodomy. Before trial, Hood sought to exclude
evidence that he had been excommunicated from The Church of
Jesus Christ of Latter-day Saints, arguing that the evidence was
inadmissible “other act” evidence under rule 404(b) of the Utah
Rules of Evidence. The district court admitted the evidence to

1. Judge Kate A. Toomey has resumed the use of her birth name
and is now known as Judge Kate Appleby.
 State v. Hood

explain the context of Hood’s relationship with the alleged
victim. We conclude that this was a proper, non-propensity
purpose and that the evidence was relevant to assessing the
victim’s credibility on the question of consent. But because we
also conclude that the danger of unfair prejudice substantially
outweighed the probative value of the evidence and that its
admission was harmful, we vacate Hood’s convictions and
remand for a new trial.

BACKGROUND

Relationship Between Hood and W.B.

¶2 Hood met the alleged victim, W.B., on a dating website in
March 2013. W.B. was a member of The Church of Jesus Christ of
Latter-day Saints and assumed that Hood was as well because
his profile picture showed a photograph of the church’s founder
in the background. According to W.B., on their first date, Hood
told her he had not gone to church for some time but had
attended that same day and wanted to resume his involvement
in the church. He said he was grateful to meet someone like her
who was a member so that she could help him come back into
“full fellowship” with the church. At trial, W.B. explained that
“full fellowship” means taking steps to “live the teachings of the
gospel” and being able to “take the sacrament” 2 and “receive

2. “The sacrament is the formal blessing and administering of
bread and water representing the body and blood of Christ to
Church members,” which is “the equivalent of communion in
many other Christian churches.” Sacrament, The Church of Jesus
Christ of Latter-day Saints Newsroom, www.mormonnewsroom
.org/article/sacrament [https://perma.cc/L7FL-3875].

20160610-CA 2 2018 UT App 236
 State v. Hood

further blessings.” At some point, Hood disclosed to W.B. that
he had been excommunicated from the church. 3

¶3 Over the next several months, Hood and W.B. continued
dating, but their relationship was volatile and involved a series
of breakups and reconciliations. W.B. acknowledged that the
couple had engaged in various acts of sexual intimacy short of
intercourse during their relationship. She testified that although
such physical intimacy before marriage conflicted with her
religious beliefs, Hood manipulated her into submitting to these
acts.

¶4 W.B. also testified that she told Hood she would not
engage in premarital sexual intercourse because church doctrine
forbade it. Despite knowing her opposition, Hood once pushed
her against the kitchen wall and penetrated her vaginally and

3. In the Church of Jesus Christ of Latter-day Saints,
excommunication, or loss of church membership, is the “most
serious sanction the disciplinary council may prescribe.” Church
Discipline, The Church of Jesus Christ of Latter-day
Saints Newsroom, www.mormonnewsroom.org/article/church-
discipline [https://perma.cc/J8XZ-WW84]. Importantly, church
discipline is not reserved solely for “apostasy,” or public
opposition to church doctrine. Id. “Church discipline may be
required for someone guilty of serious criminal offenses.” Id. In
particular, the church expresses “zero tolerance for abuse of any
kind, including child abuse, spousal abuse, sexual abuse or child
pornography, and anyone engaged in these practices would
rightly face both criminal prosecution and Church discipline.”
Id. Other “serious personal sin, including abortion or sexual sin,
may require disciplinary action as part of the repentance
process,” but excommunication is considered “a course of last
resort and is only taken when less serious disciplinary measures
are insufficient.” Id.

20160610-CA 3 2018 UT App 236
 State v. Hood

anally with his penis while saying, “Isn’t this a fun game we’re
playing?” According to W.B., she told Hood, “No, . . . this isn’t
fun.” After this incident, she met with her ecclesiastical leader,
the bishop, and confessed that she “had allowed” the act even
though she did not want it to happen. She testified that the
bishop counseled her to refrain from participating in the
sacrament for three weeks.

¶5 At trial, Hood painted a different picture of the couple’s
relationship. He testified that W.B. was eager to engage in sexual
activity, including oral sex and intercourse, and “never talked to
[him] about not wanting to have sex because she was taking her
religion seriously.” Hood testified that he and W.B. talked little
about religion and that the topic was not central to their
relationship. According to Hood, they had a sexual relationship
for months before he told W.B. that he was trying to return to the
church after having been excommunicated.

Charged Conduct

¶6 On October 19, 2013, W.B. left Hood’s apartment after an
argument, inadvertently leaving her checkbook there. That
night, Hood sent her a text that she had forgotten her checkbook,
and W.B. responded, asking if she could retrieve it the next day.
Because of the argument, she suggested he hand her the
checkbook at the door if he did not want her to come into the
apartment. But when she arrived the next day, Hood hugged her
and told her he was sorry for what had happened. W.B. testified
she felt ill that morning and told Hood that she was “really
tired.” He led her into his bedroom and suggested she take a
nap.

¶7 W.B. testified that, after she fell asleep, Hood entered the
room, removed her pants, and performed oral sex on her. When
she woke, Hood held her down and ignored her pleas to stop.
According to W.B., she was sobbing when Hood put on a

20160610-CA 4 2018 UT App 236
 State v. Hood

condom. She begged, “No, Howard, no,” then froze in “complete
and utter shock” while he raped her.

¶8 In contrast, Hood testified that W.B. initiated the
encounter by suggesting they take a nap together. According to
Hood, they began “making out” in the bedroom and he
performed oral sex on W.B. only after she asked him to give her
an orgasm. Hood testified that, after the oral sex, he retrieved
condoms from his car before returning to the bedroom to have
intercourse with her.

Motion to Exclude Under Rule 404(b)

¶9 The State charged Hood with one count of rape and one
count of forcible sodomy. At trial, Hood voiced concern over
whether the State intended to elicit testimony regarding his
excommunication from the church. 4 Hood acknowledged that
although it may be permissible to explain that he was not a
church member, it was a 404(b) issue “to say he’s been
excommunicated in the past.” The district court initially agreed
that there was “no reason” for such evidence. The State objected,
arguing that Hood’s excommunication was a central component
of his relationship with W.B. The State explained that W.B.
would testify that “Hood made it very clear that he was
excommunicated, but that he wanted to come back to the church

4. Before trial, the State filed a notice of its intent to offer
evidence under rule 404(b) of the Utah Rules of Evidence, but it
did not include the evidence of Hood’s excommunication. Given
its arguments on appeal, the State presumably concluded that
such evidence fell outside the scope of rule 404(b). Hood did not
ask the district court to exclude the excommunication evidence
based on lack of notice, nor has he raised that issue on appeal.
See Utah R. Evid. 404(b)(2) (requiring reasonable notice of other
act evidence that the prosecutor intends to offer at trial).

20160610-CA 5 2018 UT App 236
 State v. Hood

and that . . . plea for help, spiritually speaking, was one of her
reasons for staying in contact with him.” The State posited that
Hood’s excommunication and his professed desire to return to
the church were “very probative of why [W.B.] maintain[ed]
contact with this person who [was] making . . . repeated [sexual]
overtures.”

¶10 Hood conceded that W.B. could testify that he “left the
church, . . . he wasn’t a member, he’s trying to come back to the
church,” but he objected to the admission of evidence that he
had been excommunicated. The district court questioned
whether it was possible to “shape or mold [W.B.’s] testimony
beyond what the facts actually are” to avoid mentioning the
excommunication. It noted that Hood’s status in the church was
“a fairly central part of the ongoing relationship between these
parties” and ruled that it would allow Hood’s statements to W.B.
regarding his excommunication.

Use of Excommunication Evidence at Trial

¶11 At trial, the State presented evidence that Hood had been
excommunicated from the church but never disclosed what
Hood did to merit that sanction. In its opening statement, the
State referred to Hood’s professed desire to “get back [to being]
active in the church” and his pleas for W.B. to help him do so as
the method he used to manipulate W.B. into forgiving him and
staying in the relationship. The prosecutor did not use the term
“excommunication” or otherwise refer to official church
discipline.

¶12 During trial, however, the State elicited testimony
about Hood’s excommunication from three witnesses. First,
W.B. testified that Hood told her he had been excommunicated.
Because he had lost his membership in the church, Hood told
her that he needed to “retake the discussions” with the church

20160610-CA 6 2018 UT App 236
 State v. Hood

missionaries and then “be found worthy to be rebaptized to be
able to have the blessings of the gospel in his life.”

¶13 Second, during cross-examination, Hood confirmed that
he told W.B. of his excommunication. In a subsequent line of
questioning, the State reiterated that Hood had been “officially
excommunicated from the church.”

¶14 Third, the State offered testimony from Hood’s ex-wife
about his excommunication. She testified that, soon after they
met, Hood told her he “was trying to get in good standing with
the church because he had been excommunicated.” She
explained that “there’s certain things that if you do them, like
morality, different things like that, then you have to go and
confess to your bishop or stake president or whatnot, and then
. . . they hold a council, and if they find that you’re lacking, they
can excommunicate you.” Hood’s ex-wife testified that obeying
the “law of chastity” was important to maintaining good
standing in the church.

¶15 In its closing argument, the State directly referred to
Hood’s excommunication. The prosecutor argued that Hood’s
professed “interest in rekindling the flame of faith” explained
why the “naïve” and “religious” W.B. continued to forgive and
wanted to “believe that he will be better.”

¶16 The jury convicted Hood of rape and forcible sodomy. He
appeals those convictions.

ISSUE AND STANDARD OF REVIEW

¶17 Hood argues that the district court erred by allowing the
State to elicit testimony about Hood’s “prior conviction for an
unknown transgression in an . . . ecclesiastical court.” A district
court’s decision to admit other-act evidence under rule 404(b) is

20160610-CA 7 2018 UT App 236
 State v. Hood

reviewed for abuse of discretion. See State v. Thornton, 2017 UT 9,
¶ 56, 391 P.3d 1016. Under this “deferential standard of review,”
the question before the appellate court “is not whether we would
have admitted [the] evidence. It is whether the district judge
abused his broad discretion in doing so.” Id.

¶18 Hood raised three additional issues on appeal, but
because his first claim of error requires us to vacate his
convictions and remand for a new trial, it is unnecessary for us
to reach the remaining issues. 5 See State v. Moore, 2009 UT App
386, 223 P.3d 1137.

5. “We recognize that we may address issues raised on appeal
that are likely to arise again upon remand.” State v. Moore, 2009
UT App 386, 223 P.3d 1137; see also State v. Ogden, 2018 UT 8,
¶ 49, 416 P.3d 1132 (“Although it is unnecessary to our decision,
we retain the authority to reach issues when we believe our
analysis could prove helpful on remand.”) Although Hood has
raised an additional rule 404(b) challenge that is likely to arise
again on remand, we decline to reach that issue. The district
court admitted testimony from Hood’s ex-wife that Hood “at
least once had sex with her while she was asleep, despite her
verbal protests upon waking.” The district court rejected the
State’s argument that this testimony was admissible based on the
“doctrine of chances,” but it did admit the evidence to prove
Hood’s intent and the victim’s lack of consent. On appeal, the
State asked us to affirm the admission of the ex-wife’s testimony
based on the doctrine of chances even though the district court
expressly rejected that theory. The State contends that “the
doctrine-of-chances rationale for proving lack of consent is not
an alternative theory at all, because the cases holding that prior
acts are admissible to prove lack of consent are, in fact,
grounded in the doctrine of chances.” In support of its position,
the State relies on Utah Supreme Court decisions issued after the
(continued…)

20160610-CA 8 2018 UT App 236
 State v. Hood

ANALYSIS

¶19 At trial, Hood argued that evidence regarding his
excommunication was inadmissible under rule 404(b) of the
Utah Rules of Evidence. Under that rule, “[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). However, 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.” Id. R. 404(b)(2). In other words, evidence “is
not admissible to prove that a defendant has a propensity for
bad behavior and has acted in conformity with his dubious
character,” but may be admissible “if it is offered for a proper,
noncharacter purpose.” State v. Burke, 2011 UT App 168, ¶ 29,
256 P.3d 1102.

¶20 As our supreme court has recognized, the difficulty in
applying rule 404(b) “springs from the fact that evidence of prior
bad acts often will yield dual inferences—and thus betray both a
permissible purpose and an improper one.” State v. Verde, 2012
UT 60, ¶ 16, 296 P.3d 673, abrogated on other grounds by State v.
Thornton, 2017 UT 9, 391 P.3d 1016. On one hand, exposing the

(…continued)
district court’s ruling in this case. See generally State v. Lopez, 2018
UT 5, ¶¶ 48–64, 417 P.3d 116; State v. Lowther, 2017 UT 34, ¶¶ 24–
27, 398 P.3d 1032. By not reaching this issue, we leave the district
court free on remand to reconsider the admissibility of this
evidence in light of recent case law. See Blackmore v. L & D Dev.
Inc., 2016 UT App 198, ¶ 30, 382 P.3d 655 (noting that “on
remand from an appeal, the district court retains discretion to
decide whether to reconsider any issue which was not expressly
or impliedly disposed of on appeal” (quotation simplified)).

20160610-CA 9 2018 UT App 236
 State v. Hood

jury to evidence of a defendant’s acts of misconduct may lead to
an impermissible inference “that the defendant has a
reprehensible character, that he probably acted in conformity
with it, and that he should be punished for his immoral
character in any event.” Id. ¶ 29. “On the other hand, the rule
also recognizes that acts of prior misconduct may also sustain an
alternative—and entirely permissible—inference.” Thornton,
2017 UT 9, ¶ 36. When offered for a non-propensity purpose,
“such evidence is admissible so long as it satisfies rules 402 and
403.” Id. (quotation simplified).

I. Applicability of Rule 404(b)

¶21 Before analyzing whether these requirements were met,
we first address the State’s alternative argument that the
evidence at issue is not subject to rule 404(b). The State contends
that evidence of Hood’s excommunication does not fall within
rule 404(b) for three reasons: (1) excommunication is not “a
crime, wrong, or other act,” (2) Hood’s statements about his
excommunication were not offered to prove that they were true
but only that they had been made, and (3) telling W.B. that he
had been excommunicated was intrinsic to the crimes with
which he was charged and not subject to rule 404(b). Although
none of these arguments were made to the district court, an
appellate court may affirm “on any legal ground or theory
apparent on the record,” even if such ground or theory “was not
raised in the lower court, and was not considered or passed on
by the lower court.” Goodsel v. Department of Bus. Regulation, 523
P.2d 1230, 1232 (Utah 1974) (quotation simplified). But, for the
reasons set forth below, we do not find these alternative
arguments persuasive.

A. Other Act Evidence

¶22 First, the State claims that excommunication does not fall
within rule 404(b) because it “represents a person’s standing in

20160610-CA 10 2018 UT App 236
 State v. Hood

the [church], not an act performed by the defendant.” We agree
with the State that a person’s status as an excommunicated
member of the church does not necessarily imply the
commission of a bad act. But in the unique context of this case,
evidence of excommunication strongly implied that Hood had
committed an act relevant to his propensity to commit the crimes
for which he was on trial.

¶23 According to an official church publication cited by both
parties, a disciplinary council “must be held in cases of murder,
incest, or apostasy,” “when a prominent Church leader commits
a serious transgression, when the transgressor is a predator who
may be a threat to other persons, when the person shows a
pattern of repeated serious transgressions, when a serious
transgression is widely known, and when the transgressor is
guilty of serious deceptive practices and false representations or
other terms of fraud or dishonesty in business transactions.”
Elder M. Russell Ballard, A Chance to Start Over, Ensign
(September 1990), www.lds.org/ensign/1990/09/a-chance-to-
start-over-church-disciplinary-councils-and-the-restoration-of-
blessings?lang=eng [https://perma.cc/GVL7-8PWE]. Disciplinary
councils may also be convened “following serious transgression
such as abortion, transsexual operation, attempted murder, rape,
forcible sexual abuse, intentionally inflicting serious physical
injuries on others, adultery, fornication, homosexual relations,
child abuse (sexual or physical), spouse abuse, deliberate
abandonment of family responsibilities, robbery, burglary,
embezzlement, theft, sale of illegal drugs, fraud, perjury, or false
swearing.” Id.

¶24 The State correctly points out that “excommunication may
result from other acts which, to many or most people, do not
reflect poorly on a person’s character.” For instance,
excommunication based on theological disagreements, or
“apostasy,” would not imply the commission of “a crime,
wrong, or other act” within the meaning of rule 404(b). But the

20160610-CA 11 2018 UT App 236
 State v. Hood

vast majority of “transgressions” that lead to excommunication
in the church are “serious criminal offenses,” including sexual
abuse. See Church Discipline, The Church of Jesus Christ of Latter-
day Saints Newsroom, www.mormonnewsroom.org/article/chur
ch-discipline [https://perma.cc/J8XZ-WW84]. Here, the jury was
left to speculate about the “transgression” Hood had committed.
And the only evidence presented suggested that the act resulting
in Hood’s excommunication was similar in kind to the charged
conduct.

¶25 Hood was on trial for rape and forcible sodomy. The
only testimony regarding potential reasons for excommunication
referred to “morality,” and was given by his ex-wife who
also testified that Hood had raped her three years
earlier. Testimony that Hood was actively seeking to rejoin
the church also dispelled any suggestion that his
excommunication was based on theological disagreements with
church doctrine. To a Utah jury likely to be familiar with the
type of conduct that would trigger church discipline, 6 the
implication was that Hood had been excommunicated for an act
similar in kind to the sexual abuse alleged by both his ex-wife
and W.B. Where the evidence strongly implies that the
defendant committed a “bad act,” the proponent of that
evidence cannot avoid the application of rule 404(b) by stopping
short of identifying the act.

¶26 For example, evidence that a defendant was fired from his
last job might not suggest that he committed a bad act, given the
various reasons why an employee might be terminated. But if
that employee were on trial for sexually harassing a co-worker

6. A majority of Utahns are members of The Church of Jesus
Christ of Latter-day Saints. See Pew Research Center, Religious
Landscape Study, http://www.pewforum.org/religious-landscape-
study/state/utah/ [https://perma.cc/W9L3-R2ZK].

20160610-CA 12 2018 UT App 236
 State v. Hood

and the jury is told multiple times that he was fired from his
prior job and the only evidence presented regarding grounds for
termination is “inappropriate behavior” in the workplace and the
witness who provides that evidence has accused defendant of
sexual harassment in the past, evidence that the defendant was
fired strongly suggests that the termination resulted from similar
conduct. Indeed, the likely (and perhaps only) inference a jury
will draw is that the defendant committed a prior act that bears
on his propensity to engage in the type of conduct for which he
is on trial.

¶27 In other contexts, we have held that a person’s status can
imply the commission of other acts, even when the State does
not introduce evidence of the acts themselves. For instance, we
have applied rule 404(b) to evidence of a defendant’s parole
status, even when the State introduces no evidence of the prior
crime. See State v. Fairchild, 2016 UT App 205, ¶ 18, 385 P.3d 696;
State v. Dominguez, 2003 UT App 158, ¶¶ 16, 21, 72 P.3d 127.
Similarly, we have held that rule 404(b) applies to gang
membership where that affiliation implicates the defendant in
unlawful gang activity. See State v. Gonzalez, 2015 UT 10, ¶ 38,
345 P.3d 1168; see also State v. High, 2012 UT App 180, ¶ 19, 282
P.3d 1046 (noting that “a number of jurisdictions that have
considered the matter have concluded that membership in a
gang does constitute evidence of other crimes, wrongs, or acts
governed by rule 404(b)”). Other courts have similarly applied
rule 404(b) to evidence of a defendant’s status as a probationer
or registered sex offender, even though the underlying crime
that resulted in that status was not disclosed. See, e.g., State v.
Derbyshire, 2009 MT 27, ¶ 23–24, 201 P.3d 811 (applying rule
404(b) to evidence of defendant’s status as a probationer); State v.
Terrovona, 716 P.2d 295, 304–05 (Wash. 1986) (en banc) (same);
Coppock v. State, No. 05-13-00907-CR, 2015 WL 1811871, at *5
(Tex. Ct. App. April 20, 2015) (applying rule 404(b) to evidence
of defendant’s sex offender status). The State cannot avoid rule

20160610-CA 13 2018 UT App 236
 State v. Hood

404(b) by simply not identifying the underlying act that resulted
in that status.

¶28 In the cases cited above, the defendant’s status
necessarily implies a criminal conviction. But rule 404(b) is
not limited to other “crimes,” but instead applies more
generally to “wrongs” and “other acts” that “may bear
adversely on the jury’s judgment of the character of a person.”
29 Am. Jur. 2d Evidence § 413 (2018). 7 For example, other
courts have treated disciplinary proceedings or
resulting sanctions as subject to rule 404(b). See, e.g., United States
v. Vogel, 132 F. App’x 119, 120 (9th Cir. 2005) (defendant’s
disbarment from legal practice); United States v. Sandow, 78 F.3d
388, 390–91 (8th Cir. 1996) (suspension of defendant’s
agent/broker license); United States v. Cunningham, 103 F.3d 553,
556–77 (7th Cir. 1996) (suspension of defendant’s nursing
license); United States v. Fox, 69 F.3d 15, 19 (5th Cir. 1995)
(disciplinary action and suspension of defendant’s real estate
license). Even when the reasons for disciplinary action are not
revealed, such evidence implies not only that the defendant
allegedly engaged in some type of misconduct, but that a

7. The phrase “other acts” in rule 404(b) could arguably include
“any conduct, good or bad, that tends to reflect on the person’s
character.” See Charles Alan Wright & Arthur R. Miller, 22B
Federal Practice & Procedure Evidence § 5245 (2d ed. 1987).
Alternatively, “other acts” can be “read along with the first two
categories so it only covers conduct that resembles crimes or
wrongs.” Id. Because an act that results in excommunication is
most often similar in nature to a “crime” or “wrong,” which
includes the “violation of religious and ethical norms,” id., we do
not reach the question of whether “other acts” might also
include specific incidents of behavior that bear on the
defendant’s character but do not amount to misconduct.

20160610-CA 14 2018 UT App 236
 State v. Hood

disciplinary body found those allegations to be substantiated
and worthy of censure.

¶29 Evidence that the church initiated disciplinary
proceedings against Hood and that the disciplinary body
concluded that excommunication, the church’s most severe
sanction, was warranted similarly suggests that Hood engaged
in misconduct that reflects poorly on his character. To be clear,
we do not suggest that excommunication would always qualify
as “other act” evidence subject to rule 404(b). In other contexts,
ecclesiastical censure may carry no implication that the
defendant committed an act that reflects adversely on his
character, such as where the evidence suggests that the censure
resulted from theological differences. But, under the unique
circumstances of this case, the evidence of Hood’s
excommunication strongly implied that Hood had committed “a
crime, wrong, or other act” within the meaning of rule 404(b).

B. Truth of the Matter Asserted

¶30 Second, the State argues that Hood’s statements regarding
his excommunication were not offered to prove the truth of the
matter asserted, but were “instead ‘offered simply to prove that
they were made by the defendant.’” 8 (Quoting Oman v. Davis
School Dist., 2008 UT 70, ¶ 59, 194 P.3d 956.) Whether an
out-of-court statement is admitted to establish the truth of the
matter asserted is relevant to determining whether the evidence
is hearsay. See Utah R. Evid. 801(c)(2) (“‘Hearsay’ means a
statement that . . . a party offers in evidence to prove the truth of

8. Although the State claims that it “did not suggest that
[Hood’s] statements about his excommunication were true,” it
assumed the truth of Hood’s status in the church during his
cross-examination, when it prefaced a question by stating that
Hood had been “officially excommunicated from the church.”

20160610-CA 15 2018 UT App 236
 State v. Hood

the matter asserted in the statement.”). But Hood has not raised
a hearsay objection. The hearsay rules and rule 404(b) are
separate evidentiary hurdles. In other words, out-of-court
statements admissible as non-hearsay may still be inadmissible
under rule 404(b). See State v. Webster, 2001 UT App 238, ¶ 31 n.9,
32 P.3d 976 (recognizing that the defendant’s statement was
non-hearsay, but, as with all other evidence, “the statement
[was] still subject to the requirements of Rule 404(b)”). The
State’s position may be relevant to whether the evidence was
offered for a proper purpose, but the evidence is still subject to a
404(b) analysis.

C. Inextricably Intertwined

¶31 Third, the State argues that Hood’s statements about his
excommunication were intrinsic to the crime. Rule 404(b)
“applies only to evidence that is extrinsic to the crime charged.”
See State v. Lucero, 2014 UT 15, ¶ 14 n.7, 328 P.3d 841 (quotation
simplified), abrogated on other grounds by State v. Thornton, 2017
UT 9, 391 P.3d 1016. If the challenged evidence is “inextricably
intertwined” with the crime charged, rule 404(b) does not apply.
Id. (quotation simplified) “Rather, the act would be considered
part of the case narrative and have important probative value
that bears directly on the crime charged.” Id.

¶32 Evidence of Hood’s excommunication was not so
“inextricably intertwined” with the charged crimes that it falls
outside the scope of rule 404(b). Although Hood’s
excommunication and professed desire to return to the church
may have provided the jury with insight into the couple’s
relationship, it was not an integral part of the charged conduct:
rape and forcible sodomy. There is no evidence to suggest that
Hood told W.B. that he had been excommunicated for the
purpose of coercing or intimidating her into submitting to the
charged conduct. See State v. Patten, 2018 VT 98, ¶ 10 (affirming
the district court’s determination that defendant’s statement to

20160610-CA 16 2018 UT App 236
 State v. Hood

victim that he was a sex offender, made immediately before their
first sexual contact, “was ‘part and parcel’ with the sexual
contact” and “relevant to complainant’s ‘level of intimidation
and cooperation/consent.’”). In describing the alleged rape and
sodomy, W.B. never referred to Hood’s excommunication or
suggested that it facilitated or otherwise played a role in the
commission of those offenses. At most, the evidence explained
why W.B. maintained her troubled relationship with Hood and
was present in his home during the alleged offense.

¶33 Establishing some minimal relevance to the State’s
narrative is insufficient to place other-act evidence beyond the
reach of rule 404(b). If it were otherwise, application of rule 402
would be the first and last step of the analysis. Because evidence
of Hood’s excommunication was not so closely connected to the
charged crimes to be intrinsic, rule 404(b) applies to this other-
act evidence.

II. Application of Rule 404(b)

¶34 Having determined that rule 404(b) applies, we turn to
whether admission of the evidence exceeded the district court’s
discretion. Evidence of a defendant’s prior misconduct “must
clear several evidentiary hurdles before admission—rules 404(b),
402, and 403.” State v. Reece, 2015 UT 45, ¶ 57, 349 P.3d 712
(quotation simplified). “These requirements can be distilled into
a three-part test: the prior bad-act evidence (1) must be offered
for a genuine, noncharacter purpose, (2) must be relevant to that
noncharacter purpose, and (3) the probative value of the
evidence must not be substantially outweighed by the danger of
unfair prejudice.” Id. (quotation simplified).

¶35 Here, the district court did not conduct this three-
part analysis on the record. Under prior case law requiring a
“scrupulous examination” of rule 404(b) evidence, failure to
do so would have been an independent basis for reversal.

20160610-CA 17 2018 UT App 236
 State v. Hood

See State v. Lucero, 2014 UT 15, ¶ 37, 328 P.3d 841, abrogated by
State v. Thornton, 2017 UT 9, 391 P.3d 1016. But the
Utah Supreme Court recently repudiated the “scrupulous
examination” standard. Thornton, 2017 UT 9, ¶ 3. Rather than
assessing the “scrupulousness” of the district court’s analysis,
we “simply assess whether the district judge made an error in
admitting or excluding the evidence in question.” Id. ¶ 53. “Said
another way, we no longer focus on the path the [district] court
followed in reaching its conclusion, but review only the
conclusion itself.” State v. Von Niederhausern, 2018 UT App 149,
¶ 14, 427 P.3d 1277. Of course, a judge who engages in such a
“scrupulous examination” of 404(b) evidence—“marching
through the standards set forth in rules 404(b), 402, and 403, and
presenting his analysis on the record”—“will be
better-positioned to have his decision on admissibility of prior
misconduct evidence affirmed on appeal.” Thornton, 2017 UT 9,
¶ 54.

¶36 Although we do not have the benefit of the district court’s
analysis on the record, we apply the three-part test below to
determine whether the district court’s ultimate decision to admit
evidence of Hood’s excommunication constituted an abuse of
discretion. We conclude that the evidence clears the first two
evidentiary hurdles, but not the third.

A. Non-Character Purpose Under Rule 404(b)

¶37 “The threshold 404(b) question is whether the evidence
has a plausible, avowed purpose beyond the propensity purpose
that the rule deems improper.” State v. Thornton, 2017 UT 9, ¶ 58,
391 P.3d 1016 (emphasis omitted). If “the proper purpose put
forward by the prosecution is addressed to an issue that is not
actually disputed,” and “the only real effect of the evidence is to
suggest likely action in conformity with bad character,” the
avowed purpose “may be rejected as a pretext or ruse.” Id. ¶ 59
(quotation simplified). “Short of that, however, the court’s job

20160610-CA 18 2018 UT App 236
 State v. Hood

under rule 404(b) is not to balance or weigh competing (proper
and improper) inferences.” Id.

¶38 At trial, the State argued that “it would be very difficult
for [W.B.] to tell the story of their relationship” without
discussing the excommunication because Hood’s “plea for help,
spiritually speaking, was one of her reasons for staying in
contact with him.” In overruling Hood’s rule 404(b) objection,
the court found that Hood’s excommunication was “a fairly
central part of the ongoing relationship of these parties.”

¶39 Our supreme court has upheld the admission of rule
404(b) evidence presented for a similar purpose. In Thornton, the
State presented “evidence of Thornton’s involvement in [the
victim’s] mother’s drug use and prostitution.” Id. ¶ 57. The court
concluded that the prior misconduct evidence “presented a
narrative of relevance to the prosecution’s case—to
demonstrating Thornton’s position of power in the home, to
explaining why he had such easy access to [the victim], and to
suggesting why [the victim] may have waited to come forward
with accusations against Thornton.” Id. Consequently, our
supreme court held that “the district court acted within its
discretion in crediting this proper purpose.” Id.

¶40 Much like Thornton, the avowed purpose of the State’s
excommunication evidence was to explain the dynamics of the
relationship between Hood and W.B. The State claimed that
Hood’s statements to W.B. about his excommunication and his
desire to return to “full fellowship” in the church motivated
W.B. to continue the relationship. According to the State, this
explained why W.B. returned to Hood’s apartment even though
his sexual advances were unwelcome, providing him with the
opportunity to commit the charged crimes. This narrative was
essential to the State’s theory of the case that Hood had taken
advantage of a “religious” and “naïve” woman who was
invested in his spiritual well-being. As the State points out, this

20160610-CA 19 2018 UT App 236
 State v. Hood

narrative does not depend on whether Hood was truly
excommunicated; rather, the proffered purpose for admitting
evidence of Hood’s alleged status as a repentant excommunicant
was to show its effect on W.B.

¶41 At this stage in the analysis, we do not weigh the
competing inferences that a jury might draw from this evidence.
Because the State has offered this evidence for a proper,
non-propensity purpose, it is presumptively admissible under
rule 404(b).

B. Relevance Under Rule 402

¶42 “The second part of the analysis requires the court to
determine whether the offered evidence meets the requirements
of rule 402, which excludes all evidence that is not relevant.”
State v. Decorso, 1999 UT 57, ¶ 22, 993 P.2d 837, abrogated on other
grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016. “Relevance
is a low bar.” Thornton, 2017 UT 9, ¶ 61. Evidence is relevant if
“it has any tendency to make a fact [of consequence in
determining the action] more or less probable than it would be
without the evidence.” Utah R. Evid. 401(a). Under rule 402,
relevant evidence is presumptively admissible. Id. R. 402.

¶43 According to the State, W.B.’s desire to help Hood return
to the church explained how Hood “persuaded [her] to continue
the relationship, and why she would keep seeing him when he
persisted in his efforts to have a sexual relationship against her
religious beliefs.” Understanding the dynamics of the
relationship would help the jury assess the respective credibility
of Hood and W.B. and whether the alleged sexual acts occurred
without her consent. These were the key issues at trial. Because
there was no dispute that the sexual acts occurred, the jury was
tasked only with determining whether those acts were
consensual. And because there were no other witnesses, that
determination turned on its assessment of Hood’s and W.B.’s

20160610-CA 20 2018 UT App 236
 State v. Hood

credibility. Accordingly, this evidence was relevant and thus
presumptively admissible under rule 402.

C. Balancing Under Rule 403

¶44 The third step in assessing the admissibility of other-act
evidence requires us “to look first, and primarily, to the
language of rule 403.” State v. Ring, 2018 UT 19, ¶ 23, 424 P.3d
845. Under that language, “[t]he court may exclude relevant
evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Utah R.
Evid. 403. “The term ‘unfair prejudice,’ as to a criminal
defendant, speaks to the capacity of some concededly relevant
evidence to lure the factfinder into declaring guilt on a ground
different from proof specific to the offense charged.” Old Chief v.
United States, 519 U.S. 172, 180 (1997).

¶45 The balancing required by rule 403 “is essential to
preserve the integrity of rule 404(b).” State v. Verde, 2012 UT 60,
¶ 18, 296 P.3d 673, abrogated on other grounds by State v. Thornton,
2017 UT 9, 391 P.3d 1016. If the evidence admitted under rule
404(b) supports proper and improper inferences, “the court
should balance the two against each other under rule 403,
excluding the bad acts evidence if its tendency to sustain a
proper inference is outweighed by its propensity for an
improper inference or for jury confusion about its real purpose.”
Id.

¶46 To assess the risk of unfair prejudice, we first consider the
types of impermissible inferences a jury could reasonably draw
from the evidence. While the exact reasons for Hood’s
excommunication were not disclosed, his ex-wife testified that
there are certain acts involving “morality” that can trigger a
church disciplinary council and lead to excommunication. At the

20160610-CA 21 2018 UT App 236
 State v. Hood

very least, this testimony suggested that Hood had previously
been adjudicated guilty of some act deemed immoral by a
church disciplinary council. And W.B.’s testimony that her
“punishment” for premarital sex was counseling by her local
bishop to refrain from taking the sacrament for three weeks
further suggested that a much more egregious act of immorality
would lead to formal disciplinary proceedings and
excommunication, the church’s harshest penalty.

¶47 The nature of the charges against Hood exacerbates
the potential for prejudice. Disciplinary councils are
convened when a member has engaged in “serious criminal
offenses” or “sexual sin,” including any type of “sexual abuse.”
See Church Discipline, The Church of Jesus Christ of Latter-day
Saints Newsroom, www.mormonnewsroom.org/article/church-
discipline [https://perma.cc/WS75-ERP8]. To a Utah jury serving
as fact-finders in a rape and forcible sodomy trial, the evidence
of Hood’s prior excommunication could imply that he might
have engaged in similar conduct in the past.

¶48 At a minimum, the evidence suggested that Hood was the
type of person who would disregard church doctrine. This
alleged character trait carried special significance in light of the
State’s theory at trial. To prove that the sexual acts were
nonconsensual, the State relied heavily on W.B.’s religious
convictions and Hood’s alleged refusal to honor her
commitment to the “law of chastity.” Given this context,
admission of the excommunication evidence created a significant
risk that it would be considered for the improper purpose of
showing that commission of the alleged crimes was in
conformity with Hood’s character.

¶49 With those impermissible character inferences in mind,
we turn to whether the risk of unfair prejudice substantially
outweighed the probative value of the evidence. In making this
assessment, we are “free to consider any relevant factors when

20160610-CA 22 2018 UT App 236
 State v. Hood

balancing the probative value of evidence against its risk for
unfair prejudice.” State v. Lowther, 2017 UT 34, ¶ 42, 398 P.3d
1032. Of particular relevance here is the State’s “need for the
evidence” and “efficacy of alternative proof.” Id. ¶ 33 (quotation
simplified).

¶50 In balancing the risk of unfair prejudice against the
probative value of the evidence, it is appropriate to consider the
availability of other, less prejudicial, means of proof. As the
United States Supreme Court has recognized, “what counts as
the Rule 403 ‘probative value’ of an item of evidence, as distinct
from its Rule 401 ‘relevance,’ may be calculated by comparing
evidentiary alternatives.” Old Chief v. United States, 519 U.S. 172,
184 (1997). “If an evidentiary alternative has equal or greater
probative value and poses a lower risk of unfair prejudice, the
trial court should ‘discount’ the probative value of the disputed
evidence and exclude it if the risk of unfair prejudice
substantially outweighs its discounted probative value.” See
United States v. Becht, 267 F.3d 767, 773 (8th Cir. 2001).

¶51 Here, Hood informed the court that he had no objection to
evidence that he was a former member seeking to rejoin the
church. There is no “cognizable difference” between Hood’s
proposed evidence and the “legitimately probative component”
of the excommunication evidence. 9 Old Chief, 519 U.S. at 191. The
legitimate probative value of the excommunication evidence
went to enhancing the credibility of W.B.’s testimony that the

9. In rejecting this alternative proposal, the district court
questioned whether it would be possible to “shape or mold
[W.B.’s] testimony beyond what the facts actually are.” As with
all pre-trial rulings, the parties would have complied by
instructing their witnesses to avoid the prohibited topic and by
carefully tailoring their examination questions or seeking
permission to proceed by leading questions, if necessary.

20160610-CA 23 2018 UT App 236
 State v. Hood

sexual acts were nonconsensual by explaining that she
maintained her relationship with Hood, despite their disparate
views on premarital sex, because Hood had asked her to help
him return to “full fellowship” with the church. Allowing
Hood’s proposed evidence that he was a former church member,
while excluding testimony that his status resulted from
excommunication, would leave no gaps in the natural sequence
of events or otherwise diminish the “evidentiary depth” of the
State’s narrative. See id. at 189–90. Disclosing the
excommunication itself added nothing to the legitimate
probative value of the evidence. See State v. Verde, 2012 UT 60,
¶ 30 (holding that, although the state was free to reject a
proposed stipulation, its rejection had “probative implications”
and reinforced “the conclusion that the prosecution’s purpose
was not to tell a legitimate narrative to the jury but instead to
present an improper one”), abrogated on other grounds by State v.
Thornton, 2017 UT 9, 391 P.3d 1016. The only thing to be gained
was an increased risk that the jury would draw impermissible
inferences about Hood’s character.

¶52 The State’s avowed purpose for using the evidence would
have been equally well served by admitting evidence of Hood’s
estrangement from and renewed interest in the church while still
granting his 404(b) motion to exclude his excommunication. The
additional probative value of the excommunication evidence, if
any, was substantially outweighed by the danger of unfair
prejudice. Given the facts of this case, the district court’s decision
to admit evidence of Hood’s excommunication exceeded the
bounds of reasonableness and constitutes an abuse of discretion.

III. Harmfulness

¶53 Finally, we consider whether this evidentiary error
necessitates reversal. “Even if the admission of rule 404(b)
evidence by the [district] court was in error, reversal on appeal is
not appropriate unless [the defendant] demonstrates that the

20160610-CA 24 2018 UT App 236
 State v. Hood

error materially affected the fairness or outcome of the trial.”
State v. Calvert, 2017 UT App 212, ¶ 38, 407 P.3d 1098 (quotation
simplified). We will overturn a conviction based on the improper
admission of evidence only if a “reasonable likelihood exists that
the error affected the outcome of the proceedings.” Id. (quotation
simplified).

¶54 In determining whether the erroneous admission of
other-act evidence was harmless, we often look to the strength of
the evidence supporting the jury’s verdict. See State v. Courtney,
2017 UT App 172, ¶ 22, 424 P.3d 198; State v. Ferguson, 2011 UT
App 77, ¶ 19, 250 P.3d 89. But this is not a case where the
evidence of guilt was overwhelming. As is typical with
allegations of sexual abuse, the alleged perpetrator and victim
were the only witnesses to the charged conduct. The verdict
hinged entirely on the jury’s assessment of their relative
credibility. Since there was no dispute that the acts occurred, the
jury was specifically charged with deciding whether to believe
Hood’s account that the acts were consensual or W.B.’s account
that they were not. That was not an easy task, given the evidence
that the couple had an ongoing romantic relationship and had
engaged in at least some consensual sexual activity in the past.
To aid the jury in its credibility assessment, the State made a
concerted effort to contrast W.B.’s character—particularly, her
religious character—with Hood’s. As a result, Hood’s
excommunication took on particular significance at trial. His
excommunication and what it implied about his moral character
was central to the State’s theory of the case.

¶55 When viewed in light of the entire record, the erroneous
admission of other-act evidence was not inconsequential. The
reference to Hood’s excommunication was not isolated. Instead,
the State elicited evidence about Hood’s excommunication from
three separate witnesses and referred to it again to support its
narrative during closing argument. Moreover, references to
church doctrine and, by implication, Hood and W.B.’s

20160610-CA 25 2018 UT App 236
 State v. Hood

comparative morality, were pervasive throughout trial. For
example, W.B. testified about her interaction with the church
missionaries, discussions with her bishop, her attendance at
church services, priesthood blessings, the “law of chastity” and
other church teachings, the founding of the church and
“restoration of the . . . keys of the priesthood,” and her religious
convictions generally. In contrast, the State painted Hood as
lacking any sincere religious convictions. At one point, the
prosecutor even questioned whether Hood had made a “real
attempt . . . to hear the Gospel again, the Gospel of Jesus Christ,
the Church of Jesus Christ of Latter-day Saints.”

¶56 In short, we agree with Hood that “the entire trial
devolved into an exploration of [his] perceived religious
failings.” The evidence suggested that W.B. was the type of
person who would refuse consent based on her religious
convictions and that Hood was the type of person who would
disregard such objections. We are not suggesting that the State’s
strategy was necessarily improper, only that it exacerbated the
potential prejudice from the improper admission of Hood’s
excommunication. In the context of this case, evidence that a
disciplinary body had previously found Hood guilty of a
sufficiently serious moral transgression that warranted
expulsion from his faith may have suggested that he had an
immoral character and the propensity to commit the crimes
charged. In a case that turned on conflicting testimony regarding
consent, there is a reasonable probability that such propensity
evidence unfairly influenced the jury’s verdict.

CONCLUSION

¶57 The probative value of Hood’s excommunication was
substantially outweighed by the risk of unfair prejudice. Because
there is a reasonable probability the erroneous admission of this

20160610-CA 26 2018 UT App 236
 State v. Hood

evidence affected the outcome of the trial, we vacate his
convictions and remand for a new trial.

CHRISTIANSEN FORSTER, Judge (concurring in part and
concurring in result):

¶58 I concur in Part II.C and Part III of the majority opinion
and concur in the result reached in this case. While I disagree
that the evidence of Hood’s excommunication constitutes “other
act” evidence pursuant to rule 404(b) of the Utah Rules of
Evidence, I agree with the majority that there is a reasonable
probability that the introduction of the excommunication
evidence prejudiced Hood.

20160610-CA 27 2018 UT App 236