State v. Lowther

356 P.3d 173

2015 UT App 180

STATE of Utah, Plaintiff and Appellee

v.John Marcus LOWTHER, Defendant and Appellant.

No. 20130697–CA.

Court of Appeals of Utah.

July 30, 2015.

Edward J. Stone, Park City, for Appellant.

Sean D. Reyes, Salt Lake City and Tera J. Peterson, for Appellee.

Judge JAMES Z. DAVIS authored this Opinion, in which Judge JOHN A. PEARCE concurred. Judge GREGORY K. ORME dissented.

Opinion

DAVIS, Judge:

¶ 1 John Marcus Lowther entered conditional no-contest pleas to two counts of rape, reserving for appeal his challenge to the trial court's grant of the State's motion to admit evidence pursuant to rule 404(b) of the Utah Rules of Evidence. We reverse and remand.

BACKGROUND

¶ 2 In support of its charge that Lowther raped K.S., the State sought to admit testimony from three other women who allege that Lowther had “raped them under similar circumstances: they had attended a social gathering where they consumed alcohol; they went to sleep either drunk or tipsy; and they awakened to find [Lowther] forcefully penetrating them.” The State considered the evidence necessary to show Lowther's “intent to engage in sexual activity without the consent of the victims,” his “modus operandi ... to initiate the offenses after the victims had reached a state where they were incapable of protesting or resisting,” and his “lack of accident or mistake” as to the “vulnerability of his victims at the time that he perpetrated sexual offenses against them,” and to establish lack of consent. The trial court held an evidentiary hearing during which K.S. and the three proposed witnesses testified.

¶ 3 K.S. testified that she attended a movie premiere on September 22, 2010, when she was twenty years old. She testified that because she had been drinking at the event and later at a hotel bar, she called a friend to drive her and another woman, S.H., home from the premiere. The friend arrived in a car driven by Lowther, whom K.S. had met a few times on previous occasions. Lowther drove K.S. and S.H. to S.H.'s house. K.S. testified that she probably had two drinks that night at the event. She estimated that at the time she went to bed her level of intoxication was a two on a ten-point scale on which zero was completely sober and ten was having alcohol poisoning. K.S. went straight to bed in S.H.'s room, removing her jeans herself, and later woke up to find Lowther laying behind her, in a spooning position, penetrating her vaginally. Her underwear was pushed aside. He also had an arm draped over her torso and was holding her wrist against her chest. K.S. rolled away. Lowther either pulled her back to the bed or she fell back. K.S. stood up again and left the room, ending the incident.

¶ 4 A.P. testified that she had met Lowther a few times through a friend before seeing him at a house party in December 2009. A.P. testified that she drank vodka at the party, that she had never been drunk before, and that she was seventeen at the time. She testified that she became very sick from the alcohol and that her then-boyfriend brought her to a quiet room in the basement of the house where she could rest. She testified that her intoxication was “a 7 or 8, possibly a 9” on a ten-point scale with “10 being ending up in the hospital with alcohol poisoning.” A.P.'s boyfriend and several other people continued to periodically check on A.P. while she was in the basement room. At some point, Lowther came into the room, purportedly to check if A.P. was okay, at which time he began “rubbing” her and “dry humping” her. She testified that Lowther had shut and locked the door and that she could occasionally hear her boyfriend and friends trying to get in to the room to check on her but that she was too intoxicated to respond. She testified that she told Lowther “no” at least twice while he was rubbing and humping her but that she then “blacked out,” and when she regained consciousness, “[Lowther] was on top of [her] ..., his penis was inside of [her],” and he had pinned her hands alongside her torso. She testified that Lowther had pulled her pants down to her ankles but that she probably still had a shirt on. She testified that she told Lowther “no” another two or three times and repeated that she was sick, and she recalled “throwing up continuously through this the whole time.” She testified that she blacked out again and that when she “woke up[, Lowther] was next to [her].” That was when she got up and left.

¶ 5 C.H., who was eighteen at the time of her alleged rape, testified that she had invited some friends to her apartment on February 14, 2009, and that one of her guests brought Lowther to the party. C.H. testified that she had never met Lowther before. She testified that she consumed alcohol at the party, in Lowther's presence, and that she proceeded to get “very intoxicated.” During the party, C.H. fought with her then-boyfriend and kicked him out of the apartment. She testified that she talked with Lowther and other partygoers about the fight. Around 5:00 a.m., C.H. told Lowther and the other remaining guests that she was going to bed. Approximately an hour and a half after she fell asleep, C.H. woke up because Lowther was on top of her, having sex with her. Her pants had been removed, she presumed by Lowther. She testified, “I actually asked him what was happening. I didn't get it,” and when she realized what was occurring, she “started pushing him from his shoulders to get him off.” When that did not work after several attempts, she “pushed him by his ... pelvis area,” which ultimately caused him to stop. She also testified that she did not feel intoxicated at the time of the alleged sexual conduct.

¶ 6 Last, C.R. described herself as “pretty good friends” with Lowther, whom she got to know through her then-boyfriend, now husband. On July 20, 2010, when C.R. was twenty years old, she and her boyfriend invited Lowther to their house for some drinks. She and Lowther both drank that night. She testified that she had three or four shots of vodka throughout the evening, and she estimated her intoxication level as a four, five, or six out of ten. C.R. went to bed and later woke up because she felt “fingers inside” of her and Lowther laying across her legs. Her boyfriend was asleep in the bed next to her. She testified that she “sort of shifted a little bit, kicked [Lowther] off,” and told him to go home, at which point he left.

¶ 7 Following the evidentiary hearing, the trial court issued a memorandum decision and order granting the State's motion to admit the rule 404(b) evidence. The court based its ruling on the doctrine of chances and our supreme court's decision in State v. Verde, 2012 UT 60, 296 P.3d 673. Lowther appeals.

ISSUE AND STANDARD OF REVIEW

¶ 8 On appeal, Lowther argues that the trial court did not “engage in a scrupulous examination” of the prior bad acts evidence because it failed to follow the requisite rule 404(b) analysis and instead relied solely on the doctrine of chances. Rule 404 of the Utah Rules of Evidence provides, “Evidence 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, evidence of a prior bad act “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). “[W]e review a trial court's decision to admit evidence under rule 404(b)... under an abuse of discretion standard. We review the record to determine whether the admission of other bad acts evidence was ‘scrupulously examined’ by the trial judge ‘in the proper exercise of that discretion.’ ” State v. Nelson–Waggoner, 2000 UT 59, ¶ 16, 6 P.3d 1120 (footnote omitted) (quoting State v. Decorso, 1999 UT 57, ¶ 18, 993 P.2d 837 ). Thus, we accord some deference to a trial court's decision to admit evidence under rule 404(b), “[b]ut such a decision can withstand our review only if the evidence falls within the bounds marked by the legal standards set forth in the rules of evidence.” Verde, 2012 UT 60, ¶ 19, 296 P.3d 673.

ANALYSIS

¶ 9 In reviewing a motion to admit prior bad acts under rule 404(b), a trial court must make three inquiries. A “trial court must first determine whether the bad acts evidence is being offered for a proper, noncharacter purpose, such as one of those specifically listed in rule 404(b).” Nelson–Waggoner, 2000 UT 59, ¶ 18, 6 P.3d 1120. Next, “the court must determine whether the bad acts evidence meets the requirements of rule 402 [of the Utah Rules of Evidence], which permits admission of only relevant evidence.” Id. ¶ 19. The doctrine of chances “is a theory of logical relevance that rests on the objective improbability of the same rare misfortune befalling one individual over and over,” Verde, 2012 UT 60, ¶ 47, 296 P.3d 673 (citation and internal quotation marks omitted), and therefore, the doctrine may satisfy either or both of these first two rule 404(b) inquiries. Last, in determining whether prior bad acts evidence should be admitted, a “trial court must determine whether the bad acts evidence meets the requirements of rule 403 of the Utah Rules of Evidence,” which provides that relevant evidence “ ‘may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.’ ” Nelson–Waggoner, 2000 UT 59, ¶ 20, 6 P.3d 1120 (quoting Utah R. Evid. 403).

I. The Doctrine of Chances

¶ 10 Lowther first argues that in Verde, the Utah Supreme Court specifically limited the application of the doctrine of chances to cases in which the defendant challenges the complaining witness's testimony as fabricated. See Verde, 2012 UT 60, ¶¶ 44, 46, 296 P.3d 673. And because he never raised or indicated an intent to raise a defense of fabrication, Lowther contends that the doctrine of chances is inapplicable to his case and that the State's rule 404(b) evidence is not...