State v. Bujan, Jr.

2008 UT 47
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, No. 20060883
Plaintiff and Petitioner,
v.
F I L E D
Phillip Jim Bujan, Jr.,
Defendant and Respondent. July 18, 2008
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Third District, Salt Lake
The Honorable Judith S. Atherton
No. 031904067
Attorneys: Mark L. Shurtleff, Att’y Gen., Kris C. Leonard,
Asst. Att’y Gen., Salt Lake City, for plaintiff
Linda M. Jones, Ralph W. Dellapiana, Salt Lake City,
for defendant
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On Certiorari to the Utah Court of Appeals
DURHAM, Chief Justice:
INTRODUCTION
¶1 We accepted this case to determine whether the court of
appeals correctly construed the scope of rule 801(d)(1)(B) of the
Utah Rules of Evidence and whether the court of appeals correctly
applied the rule to pretrial statements admitted at the
defendant’s trial. We find that the court of appeals correctly
applied the rule to this case, but clarify its construction of
the scope of the rule. Rule 801(d)(1)(B) permits consistent,
out-of-court statements to be admitted as nonhearsay if offered
to rebut a charge of recent fabrication, improper influence, or
motive only if such statements were made prior to the time a
motive to fabricate arose.
FACTS
¶2 The opinion of the court of appeals contains a thorough
factual history, which we will not repeat here. See State v.
Bujan, 2006 UT App 322, ¶¶ 2-13, 142 P.3d 581. In summary, K.B.,
daughter of Tina Binkerd and defendant Phillip Bujan, alleged
that Bujan raped her in late 2001. At trial, the defense called

1 Bujan and Binkerd divorced in 1997. From 1997 until early
2001, Bujan was largely absent from K.B.’s life. For most of
2001, Bujan regularly spent time with K.B. and occasionally
stayed overnight with her when Binkerd was out of town.
No. 20060883 2
into question K.B.’s credibility as a witness. During cross-
examination of K.B., the defense identified several alleged
inconsistencies between K.B.’s testimony at trial and certain
statements she made in an April 2003 interview with Detective
Daphne Oberg of the Salt Lake County Sheriff’s Office. The
defense alleged that K.B. fabricated the rape incident because
she was angry at Bujan following a disciplinary incident that
occurred in late 2001 and following an announcement by Bujan,
also in late 2001, that he planned to reunite with a former
spouse.1
¶3 At trial, following testimony by K.B. and Binkerd, the
State indicated that it had three additional witnesses it wished
to have testify, including Detective Oberg. The defense
questioned whether it was appropriate for Detective Oberg to
testify, suggesting that her testimony “would be hearsay to the
extent she’s putting on a prior inconsistent statement.” The
State replied that it “would like to have her testify to prior
consistent statements.” The trial court responded, “We’ll see.
That’s fine. All right.” After discussing an additional,
unrelated procedural matter, the trial court recessed.
¶4 The record contains no additional discussion regarding
whether or why Detective Oberg would testify before the State
called her to the stand. Shortly into questioning by the State,
defense counsel objected to the following question: “Let’s talk
about [the April 2003] interview with [K.B.]. What did you talk
to [K.B.] about in the beginning?” Defense counsel said,
Judge, I’m going to object. I’m not sure
that -- this is probably going to be
duplicative to the extent that she is going
to be asked to restate [K.B.’s] statements to
her, would be hearsay. So unless there’s
some foundation as to the necessity of this
testimony, I’d ask the court to exclude it.
¶5 The trial judge responded, “The question doesn’t
necessarily -- this particular question doesn’t necessarily
involve a hearsay issue, but the hearsay rule does apply.”
Following the trial judge’s comment, counsel for the State
indicated why it believed Detective Oberg’s testimony was
admissible as follows:

2 In response to the four overruled objections, the trial
judge permitted the State to continue for reasons having no
bearing on the issue in question.
3 No. 20060883
I’d be arguing under Rule 801 this is a prior
consistent statement that -- [K.B.] has
testified here today, and I believe the
defense is trying to somehow discredit what
she has said or attack whatever she has said,
and Detective Oberg is here to show that
there are consistent statements with the
disclosure and with the rape.
(Emphasis added.) The trial court then allowed the State to
continue questioning Detective Oberg. Defense counsel objected
five additional times during Detective Oberg’s testimony; two
objections questioned the relevance of the testimony being
elicited, and the other three objections suggested that the
elicited testimony called for hearsay. Only one hearsay
objection, regarding whether K.B.’s brother told Detective Oberg
that K.B.’s behavior had changed, was sustained.2 The State
provided no foundational basis, other than its initial reference
to rule 801, for the admission of Detective Oberg’s testimony.
¶6 The jury found Bujan guilty of rape of a child and
aggravated sexual abuse of a child. Bujan appealed the result to
the Utah Court of Appeals on two grounds. First, Bujan argued
that it was an abuse of discretion for the trial judge to admit
Detective Oberg’s hearsay testimony pursuant to rule
801(d)(1)(B). Bujan argued that rule 801(d)(1)(B) only allows
admission of prior consistent statements made before a motive to
fabricate arises and that K.B.’s statements to Detective Oberg
were made after a motive (arising from either the disciplinary
incident or Bujan’s announcement that he was reuniting with a
former spouse) to fabricate the rape arose. Second, Bujan argued
that the admission of Detective Oberg’s hearsay testimony
resulted in prejudice. The court of appeals agreed with Bujan on
both grounds, and, therefore, reversed and remanded the case for
further proceedings. Bujan, 2006 UT App 322, ¶¶ 29, 33. We
granted certiorari regarding the scope of admissibility of
pretrial statements under rule 801(d)(1)(B).
STANDARD OF REVIEW
¶7 “On certiorari, we review the court of appeals’
decision for correctness, giving its conclusions of law no
deference.” State v. Casey, 2003 UT 33, ¶ 10, 82 P.3d 1106.

No. 20060883 4
ANALYSIS
¶8 The United States Supreme Court interpreted the scope
of Federal Rule of Evidence 801(d)(1)(B), to which our rule is
analogous, in Tome v. United States, 513 U.S. 150 (1995). In
that case, the defendant was charged with sexually abusing his
daughter. Pursuant to rule 801(d)(1)(B), the trial court
admitted certain out-of-court consistent statements made after an
alleged motive to fabricate arose. The defendant appealed the
admission of the statements, the U.S. Court of Appeals for the
Tenth Circuit affirmed, and the defendant appealed that decision
to the United States Supreme Court on writ of certiorari. The
Supreme Court reversed, holding that rule 801(d)(1)(B) “permits
the introduction of a declarant’s consistent out-of-court
statements to rebut a charge of recent fabrication or improper
influence or motive only when those statements were made before
the charged recent fabrication or improper influence or motive.”
Tome, 513 U.S. at 167. The Tome analysis and rule interpretation
is directly on point in this case, and we agree with it. At
trial, the State used Utah’s rule 801(d)(1)(B) as its only
foundation for the admission of Detective Oberg’s testimony
regarding K.B.’s consistent, out-of-court statements. K.B.’s
interview with Detective Oberg, however, occurred after the
alleged motive for K.B. to fabricate the rape allegation arose.
Therefore, K.B.’s consistent statements were not made prior to
the time the alleged motive to fabricate arose, as is required
for admission under rule 801(d)(1)(B).
¶9 We recognize that there are rules that permit admission
of consistent, out-of-court statements made after a motive to
fabricate arises. In its brief before us, the State suggested
two: admissibility under the common law for nonsubstantive
purposes and nonsubstantive admissibility under the rule of
completeness. Even if the evidence should have been admitted for
rehabilitative purposes, however, the trial court erred in
admitting the evidence substantively. We have recognized under
common law the admissibility of prior consistent statements for
rehabilitative purposes. See State v. Sibert, 310 P.2d 388, 391
(Utah 1957) (“[W]here there has been an attempt to impeach or
discredit a witness, prior statements consistent with his present
testimony may be offered to offset the impeachment.”). In
Sibert, we explained that such statements were admissible for
rehabilitative purposes, and we cited State v. Mares as an
example of such admissibility. Id. (citing State v. Mares, 192
P.2d 861, 867 (Utah 1948)). In Mares, a portion of the witness’
testimony was permitted to “show[] the doctor’s original findings
on the course of the bullet which was consistent with the
evidence given by the doctor at the trial.” 192 P.2d at 867. We
held that this admission was not prejudicial because the cross-
examination attempted to demonstrate that the doctor “had changed

5 No. 20060883
his theory on the course of the bullet since the time of his
previous statement,” and the portion of the autopsy report
demonstrated that the doctor’s position had not changed. Id.
However, this case differs because the State requested and the
trial court admitted Detective Oberg’s testimony substantively
under rule 801(d)(1)(B). No limiting instruction was provided to
the jury that the testimony was only admitted for rehabilitative
purposes. As such, the testimony was inappropriate hearsay and
its admission improper.
¶10 Even if the testimony had been offered for
rehabilitative purposes, it was still inappropriate to admit the
entirety of the testimony. Only testimony that directly rebuts
charges of recent fabrication is appropriate. See State v.
Thomas, 777 P.2d 445, 449 (Utah 1989) (holding it was error to
allow an officer to testify to the entire content of an interview
when that testimony went beyond “simply rebutting . . . charges”
“‘of recent fabrication or improper influence or motive’”
(quoting Utah R Evid. 801(d)(1)(B))). Pursuant to the rule of
completeness, we have held that the standard for admitting oral
statements is “only admission of those things that are ‘relevant
and necessary to qualify, explain, or place into context the
portion [of testimony] already introduced.’” State v. Cruz-Meza,
2003 UT 32, ¶ 14, 76 P.3d 1165 (citation omitted). Here, the
admission of Detective Oberg’s recounting of her entire
conversation with K.B. would likewise be inadmissible under the
rule of completeness because it went beyond the information
necessary to rebut the charges of recent fabrication. Detective
Oberg testified to her entire conversation with K.B., recounting
chronologically everything she could remember of what K.B. told
her. Detective Oberg was not asked to complete or rebut any
particular statements from K.B.’s prior testimony. Therefore,
Detective Oberg’s testimony should not have been admitted in its
entirety for either substantive or rehabilitative purposes.
¶11 Rule 801(d)(1)(B) applies only to premotive,
consistent, out-of-court statements. The purpose of rule
801(d)(1)(B) is to admit statements that rebut a charge of recent
fabrication or improper influence or motive, not to bolster the
believability of a statement already uttered at trial. See Tome,
513 U.S. at 157-58 (“The Rule speaks of a party rebutting an
alleged motive, not bolstering the veracity of the story told.”).
In such a situation, premotive, consistent, out-of-court
statements are considered nonhearsay and admitted both for
rehabilitative purposes and, more importantly to the purpose of
the rule, for their substance.
¶12 We take care in stating the scope of rule 801(d)(1)(B)
because one statement in the court of appeals’ opinion suggests
that the rule’s coverage might be broader than it actually is.

No. 20060883 6
The court of appeals stated, “We begin our analysis by noting
that Defendant correctly states that rule 801(d)(1)(B) as applied
under the Federal Rules of Evidence does not allow postmotive
statements to be admitted for a rehabilitative purpose.” State
v. Bujan, 2006 UT App 322, ¶ 26, 142 P.3d 581. Rule 801(d)(1)(B)
does not bar admission of all postmotive statements seeking to be
admitted for rehabilitative purposes. As discussed above, there
are other rules available, if the proper conditions are met,
under which postmotive statements can be admitted. Rule
801(d)(1)(B) merely creates a narrow avenue by which premotive
statements are considered nonhearsay and can be admitted for
their substance.
CONCLUSION
¶13 Because K.B.’s out-of-court statements to Detective
Oberg were made after a motive to fabricate the allegations of
rape arose, they were not admissible for their substance pursuant
to rule 801(d)(1)(B). The decision of the court of appeals is
affirmed.
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¶14 Associate Chief Justice Durrant, Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.