State v. Miranda

2017 UT App 203
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
A DOLFO M IRANDA,
Appellant.
Opinion
No. 20160457-CA
Filed November 9, 2017
Fourth District Court, Provo Department
The Honorable Samuel D. McVey
No. 141401607
Daniel R. Ybarra, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which J UDGES
M ICHELE M. C HRISTIANSEN and K ATE A. TOOMEY concurred.
HARRIS, Judge:
¶1 	Defendant Adolfo Miranda was convicted of six counts of
aggravated sexual abuse of a child and three counts of rape of a
child for actions he directed toward his step-daughter (Victim)
when she was between the ages of nine and twelve. He appeals
all nine convictions, contending that the trial court (1) failed to
sanction the State for alleged discovery misconduct, and (2)
improperly admitted evidence of his character and prior bad acts.
For the reasons stated below, we conclude that the State did not
commit any discovery misconduct, and therefore the trial court’s
decision not to issue sanctions was sound. However, we agree
that the trial court should not have admitted some of the evidence
in question. But, after a complete review of the trial record, we are
unpersuaded 	that 	there 	is 	a 	reasonable 	likelihood 	that 	the

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20160457-CA 	2 	2017 UT App 203
outcome of the trial would have been different had the evidence
been excluded. Accordingly, we affirm Defendant’s convictions.
BACKGROUND
¶2 	Victim’s mother (Mother) and Defendant were married in
2010. Thereafter, Defendant moved in with Mother and her
children, whereupon he began to invite Victim to watch television
and “cuddle” alone with him in his bed. At trial, Victim testified
that 	during 	this 	television 	time 	she 	would 	“cuddle” 	with
Defendant by lying on her side with her back against his chest in
the position commonly referred to as “spooning.” After they had
done this “a couple times,” Defendant surprised her by touching
her 	buttocks 	with 	his 	hand 	over 	her 	clothing. 	Victim 	was
approximately nine years old at the time, and testified that she
“thought it was weird,” but that she was young and eventually
decided it was “probably a normal thing.”
¶3 	From there, a pattern to their “cuddling” emerged. Victim
testified that Defendant would invite her to watch television, have
her lock the door, and then begin “cuddling” with her while
touching her in increasingly inappropriate ways. Over the course
of many repeated “cuddling” sessions, Defendant progressed
from touching her buttocks over her clothes to placing his hand
under her pants against her naked buttocks. Defendant eventually
began touching around and then inside her vagina. Victim stated
that this inappropriate contact happened “pretty much every day,
like when he had free time and stuff then we’d go [to cuddle].”
¶4 	Victim testified that this pattern continued for several
years and that, once Defendant had crossed a particular line, he
would 	not 	de-escalate, 	but 	instead 	always 	pushed 	toward
increasingly intimate contact. Eventually, Defendant escalated the
“cuddling” beyond touching her buttocks and genitals, and on
various occasions he would expose his penis and tell Victim to
“grab it and stuff and just start moving it back and forth.” Victim

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20160457-CA 	3 	2017 UT App 203
also testified that on one occasion Defendant “licked [her] vagina”
until she stopped him because she felt “uncomfortable,” and then
he asked her to “suck on his penis.” Victim refused.
¶5 	Victim further testified that on “five or six” occasions,
Defendant 	had 	sexual 	intercourse 	with 	her. 	The 	first 	time,
Defendant told her to go downstairs “to cuddle” and then led her
to the side of the bed. He then “pulled down [her] pants, and he
pulled out his penis, and then he put it inside . . . .”
¶6 	Mother testified that, during the relevant time period, her
relationship with Defendant was “rocky.” Their initial marriage,
in 2010, lasted only two years. Mother and Defendant separated
in 2012 and eventually obtained a divorce. In late 2013, however,
Defendant and Mother reconciled and remarried, but this second
marriage did not last either. In May 2014, after only seven months,
Mother and Defendant separated again, this time for good.
Thereafter, Mother and Defendant began divorce proceedings,
where the main issue was custody of the young son that Mother
and Defendant had in common.
¶7 	Mother testified that, in May 2014, about two weeks after
the second separation, she was discussing Defendant with her
children and intimated that she would not reconcile with him. In
response, Victim disclosed that she did not like Defendant, and
informed Mother that “[h]e raped me.” Mother contacted the
police.
¶8 	After an investigation, the State charged Defendant with
six counts of aggravated sexual abuse of a child and three counts
of rape of a child, all first degree felonies. During pretrial
proceedings, Defendant made a discovery request pursuant to
rule 16 of the Utah Rules of Criminal Procedure, asking the State
to disclose “[a]ny 404(b) evidence of other crimes, wrongs[,] or
acts . . . which the state intend[ed] to introduce” at trial. The State
responded by giving notice that it intended to introduce two such
witnesses 	at 	trial 	and 	providing 	a 	brief 	summary 	of 	their

State v. Miranda
20160457-CA 	4 	2017 UT App 203
anticipated testimony. Specifically, the State informed Defendant
that it intended to introduce the testimony of V.M., Victim’s older
sister, that Defendant “touched [V.M.] inappropriately,” and the
testimony of D.D., a “minor daughter of . . . Defendant’s former
business partner,” that Defendant “touched her sexually” on a
previous occasion. The State subpoenaed both of these witnesses
for trial, but decided not to call either of them to testify.
¶9 	In addition, the State attached to its discovery responses an
investigative report from the Orem Department of Public Safety,
which summarized assertions gathered from various witnesses.
The report included a recitation of an encounter Mother had with
investigators, in which she told police that “she and [Defendant
had] been separated off and on over the past few years” because
of her “concerns [Defendant] was using drugs and [her] belief he
was having sexual affairs.”
¶10 	Eventually, the case proceeded to trial. During opening
statements, the State indicated that it would rely primarily on
testimony from Victim and Mother to prove Defendant’s guilt.
Defendant’s counsel, in his opening statement, stated that he
would 	attempt 	to 	undermine 	the 	credibility 	of 	those 	two
witnesses. Counsel told the jury that it would “hear about
divorce,” “infidelity,” and “allegations of sexual abuse,” and that
after hearing about those things it would be presented with
“conflicting testimony” and would need to determine which
witnesses it believed. Defense counsel theorized that Victim
fabricated her allegations of abuse because she “couldn’t control
what men were coming into [her] home to live” or “control
whether [her] father comes back into [her] house,” and that she
wanted to dissuade Mother from further unstable relationships.
Later during the trial, defense counsel argued that Mother had
coached Victim to say that Defendant had sexually abused her so
Mother could gain an advantage in the pending divorce case.

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20160457-CA 	5 	2017 UT App 203
¶11 	During direct examination of Victim, the State primarily
solicited testimony about Defendant’s abuse, as described above.
The State also asked Victim if she had ever viewed pornography.
Victim responded that she had briefly seen pornography on an
open tab on Defendant’s computer while Defendant was out of
the room, and that she closed the tab “really fast” when she saw
“naked people.”
¶12 	During her direct examination, Mother testified primarily
about Victim’s relationship with Defendant and about changes to
Victim’s disposition following the abuse. However, Mother also
offered some testimony about her two marriages with Defendant.
Specifically, Mother testified that her marriages with Defendant
had been “rocky,” and that Defendant “was very abusive.”
¶13 	After the conclusion of the State’s case, Defendant testified
in his own defense. During direct examination, defense counsel
turned to the subject of Defendant’s relationship with Mother.
Defendant stated that there was “a lot of trouble” in the marriage
and eventually volunteered that he had “cheat[ed] on [Mother]
before, emotionally.” He explained that, during the same time
period, Mother was with two other people, and he attempted to
draw a contrast between his “cheating emotionally” and Mother’s
alleged physical affairs. Defendant offered his viewpoint that
Mother’s affairs and hypocrisy were the reasons they separated.
Defendant also testified that he believed Mother was coaching
Victim to get revenge on him.
¶14 	On the morning of the last day of trial, after Defendant’s
direct 	examination 	but 	before 	cross-examination, 	the 	State
informed the court and defense counsel for the first time that it
intended to present potential rebuttal evidence concerning the
reasons for Mother’s separation from Defendant. Specifically, the
State sought permission to re-call Mother to testify that the
reasons for her separation from Defendant were not as Defendant
had described them but, rather, that they had split up because

State v. Miranda
20160457-CA 	6 	2017 UT App 203
Defendant was abusive to her and used cocaine. The State also
sought 	permission 	to 	cross-examine 	Defendant 	about 	these
topics.1 Defense counsel objected, first indicating that he had
asked during discovery for the State to disclose all of its potential
character evidence as defined under rule 404(b) of the Utah Rules
of Evidence, and next arguing that any probative value that
Mother’s rebuttal testimony might have would be substantially
outweighed by the danger of unfair prejudice to Defendant.
Defense counsel also later objected on the ground that the rebuttal
testimony would introduce specific evidence of collateral matters
into 	the 	trial. 	The 	trial 	court 	overruled 	these 	objections,
concluding that Mother’s testimony was not rule 404(b) evidence
but, rather, was rebuttal evidence to which Defendant had
“opened the door” “under Rule 402 and 403 and 401” by “going
into” the reasons for the separation “in his testimony.”
¶15 	After the trial court’s ruling, the State proceeded with
cross-examination of Defendant and asked about his “emotional
affair[s],” and Defendant admitted that he had been “talking to
someone else” in case his relationship with Mother “didn’t work
out.” The State also asked Defendant whether he had abused
Mother and whether he used cocaine. In response, Defendant
admitted he had been violent with Mother and acknowledged
that he knew Mother believed he used cocaine, although he
denied any actual cocaine use.
¶16 	At this point, the trial court gave the jury a limiting
instruction, stating:
Ladies and gentlemen, this questioning is going into
an area regarding the potential motive for [Mother]
1. Mother’s rebuttal testimony, along with the State’s cross-
examination 	of 	Defendant 	regarding 	his 	reasons 	for 	the
separation, are collectively sometimes referred to herein as “the
challenged evidence.”

State v. Miranda
20160457-CA 	7 	2017 UT App 203
not wanting [Defendant] to see their son . . . , and so
that is the only purpose that you can use this
testimony for is to determine what her motive may
have been. This is another view of her motive. It
doesn’t conclusively establish her motive. There’s
also 	other 	evidence 	that’s 	been 	offered 	by
[Defendant] regarding her motive, but you can’t use
this evidence to say that [Defendant] is a bad guy,
that he has a propensity to do the things that he’s
charged with in this case or anything of that nature.
You 	can 	only 	use 	it 	as 	evidence 	of—potential
evidence for [Mother’s] motive in not wanting him
to see the child and for, you know, divorcing
[Defendant], the types of things he testified about
yesterday.
¶17 	After Defendant’s testimony was completed, Defendant
rested his case. The State then re-called Mother as a brief rebuttal
witness. Mother’s rebuttal testimony lasted only a few minutes,
and covers only five pages of the trial transcript. During the
examination, the State asked Mother why she and Defendant
separated. 	In 	response, 	Mother 	said, 	“[t]here 	are 	several
[reasons],” with “[t]he main one being his physical abuse.” The
State asked no follow-up questions about the details of any
physical abuse. The State then asked whether there were any
other reasons for the separation, to which Mother responded by
referencing Defendant’s “[c]heating,”and stating that she found
him “speaking to other [women] on Facebook and emails,” and
found “pornography on [their] computer.”
¶18 	At 	this 	point, 	the 	trial 	court 	gave 	another 	limiting
instruction:
Ladies and gentlemen, again, this evidence cannot
be used to prove that [Defendant] is a bad guy or
that he would have some propensity to commit the

State v. Miranda
20160457-CA 	8 	2017 UT App 203
acts that he has been charged with in this case.
Rather, it is used to show why [Mother] divorced
him and—her motive for divorcing him, and her
motive for not wanting him to see their son. So it’s
being offered to allow you to weigh the evidence
and consider which motive you believe was—that
she wants to use—she wants to use [Victim] to keep
[Defendant] from seeing the son, or does she not
want him to see the son because he does these
things—because he’s done these things. In other
words, that’s her motive.
¶19 	Following this admonition to the jury, Mother volunteered
that there was one more reason she wanted to separate from
Defendant. She testified that Defendant had a “drug addiction,”
that she had given him a second chance to deal with it, and that
the second chance had not worked out.
¶20 	Following Mother’s rebuttal testimony, the trial court read
to the jury a full set of post-evidence instructions, and in the
course of doing so, reminded the jury not to consider Mother’s
rebuttal testimony for improper purposes:
Also, if I gave you limiting instructions such as
pertaining 	to the 	motive, 	you 	must 	limit 	your
consideration of that evidence to that particular
issue, motive or whatever the limiting instruction
pertained to.
¶21 	After deliberation, the jury convicted Defendant on all
charges. A few weeks later, the trial court sentenced Defendant to
six consecutive sentences of fifteen years to life, followed by three
consecutive sentences of twenty-five years to life.
¶22 	Following sentencing, Defendant moved for a new trial
based on the admission of evidence related to his physical abuse
of Mother, his cheating, his alleged drug addiction, and his use of

State v. Miranda
20160457-CA 	9 	2017 UT App 203
pornography. Defendant also argued that the State had not
properly disclosed Mother’s rebuttal evidence prior to trial and
that he had not been given proper notice of that evidence. The trial
court denied the motion. Defendant appeals.
ISSUES AND STANDARDS OF REVIEW
¶23 	Defendant raises three issues on appeal. First, Defendant
contends that his convictions should be reversed, and the case
dismissed or at least re-tried, because the State “intentionally
withheld” 	evidence 	of 	Defendant’s 	cocaine 	addiction,
pornography use, domestic abuse, and infidelity, after Defendant
specifically made a discovery request under rule 16 of the Utah
Rules of Criminal Procedure for “[a]ny 404(b) evidence” the State
intended to use at “any hearing” in the case. We review a trial
court’s ruling on a rule 16 issue for abuse of discretion. State v.
Dick, 2012 UT App 161, ¶ 2, 280 P.3d 445.
¶24 	Second, Defendant contends that the trial court erred by
allowing the State to present the challenged evidence, arguing
that the evidence was both irrelevant and highly prejudicial under
rules 401, 402, and 403 of the Utah Rules of Evidence. We review
the trial court’s decision to admit or exclude evidence for abuse of
discretion. State v. Cuttler, 2015 UT 95, ¶ 12, 367 P.3d 981.2 Further,
2. Defendant asserts, citing State v. Ramirez, 817 P.2d 774, 781 n.3
(Utah 1991), that we should review the admission of all evidence
for correctness. Defendant misapprehends the law. In Ramirez, the
Utah Supreme Court examined whether a particular eyewitness’s
identification was reliable enough to be admitted as evidence at
trial or whether its admission was error. Id. at 781. The supreme
court held that whether “facts are sufficient to demonstrate
reliability is a question of law, which we review for correctness.”
Id. In dicta, the supreme court further stated that “[w]hether a
piece of evidence is admissible is a question of law, and we always
(continued…)

State v. Miranda
20160457-CA 	10 	2017 UT App 203
even if we determine that evidence was admitted in error, we will
not disturb the outcome of a trial “if the admission of the evidence
did not reasonably [a]ffect the likelihood of a different verdict.”
State v. Landon, 2014 UT App 91, ¶ 3, 326 P.3d 101 (alteration in
original) (citation and internal quotation marks omitted).
¶25 	Third, Defendant contends the trial court erred in denying
Defendant’s motion for a new trial, which was predicated on the
foregoing evidentiary objections. We review the denial of a
motion for a new trial for abuse of discretion. State v. Loose, 2000
UT 11, ¶ 8, 994 P.2d 1237. A trial court’s legal determinations
which serve as the basis for its denial of a motion for a new trial
are reviewed for correctness. Id.
ANALYSIS
I
¶26 	Defendant first contends that his conviction should be
reversed, and the case dismissed, due to the State’s alleged “bad
faith” conduct in intentionally withholding rule 404(b) evidence
after Defendant requested it through discovery. “It is a matter of
clear 	Utah 	law 	that 	criminal 	defendants 	are 	entitled 	to
information possessed by the State to aid in their defense.” State
v. Tiedemann, 2007 UT 49, ¶ 40, 162 P.3d 1106; see also Utah R. Crim.
P. 16(a). Further, “[w]hether prosecutors produce inculpatory
evidence under court order or on request, they have a duty to
comply fully and forthrightly.” State v. Kallin, 877 P.2d 138, 143
(Utah 1994). “When the prosecution responds voluntarily to a
review questions of law under a correctness standard.” Id. at 781
n.3. But just two years later, the Utah Supreme Court clarified that
its previous statement in Ramirez about admissibility of evidence
being “a question of law,” all components of which are reviewed
for correctness, was “not correct.” State v. Thurman, 846 P.2d 1256,
1270 n.11 (Utah 1993).

State v. Miranda
20160457-CA 	11 	2017 UT App 203
discovery request . . . two duties arise.” State v. Redcap, 2014 UT
App 10, ¶ 12, 318 P.3d 1202. “First, the prosecution must either
produce all of the material requested or specifically identify those
portions that will not be produced.” Id. “Second, when the
prosecution agrees to produce any of the material requested, it
must continue to disclose such material on an ongoing basis to the
defense.” Id. (citation and internal quotation marks omitted).
“Failure to do so is a discovery violation.” Id.
¶27 	Rule 404(b) of the Utah Rules of Evidence provides that
“[e]vidence of a crime, wrong, or other act” committed by an
individual “may be admissible” to prove “motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.” Utah R. Evid. 404(b). Upon a defendant’s
request in a criminal case, the State must provide reasonable
notice if it intends to introduce evidence pursuant to this rule.
Utah R. Evid. 404(b)(2). In this case, Defendant specifically
requested “[a]ny 404(b) evidence” the State intended to use “at
any hearing.” The State responded to Defendant’s discovery
request by disclosing two rule 404(b) witnesses it anticipated
calling at trial and providing a brief summary of their expected
testimony. 	The 	State 	ultimately 	did 	not 	call 	either 	of 	its
anticipated rule 404(b) witnesses at trial, but it did call Mother to
present rebuttal evidence as to her reasons for separating from
Defendant.
¶28 	Defendant argues that Mother’s rebuttal testimony was
rule 404(b) evidence which should have been disclosed pursuant
to his discovery request, that the State knew about it prior to trial,
and that the State nonetheless did not disclose the evidence to
Defendant until the third day of trial. Because of this, Defendant
maintains that the State did not fulfill its duty to produce all of the
evidence it should have produced, and urges us to reverse his
conviction on that basis. We are unpersuaded.

State v. Miranda
20160457-CA 	12 	2017 UT App 203
¶29 	As an initial matter, Mother’s rebuttal testimony was not
rule 404(b) evidence. The State did not ask that she be permitted
to testify pursuant to rule 404(b), and the trial court’s decision to
admit her testimony during trial did not hinge on rule 404(b). The
State 	properly 	disclosed 	to 	Defendant 	its 	true 	rule 	404(b)
witnesses—the other witnesses who were prepared to testify that
Defendant, on previous occasions, had sexually abused them too.
Mother’s proposed rebuttal testimony is not in this same category,
because the State never intended to introduce it to prove any of
the propositions identified in the rule. The trial court therefore
correctly determined that Mother’s rebuttal testimony was not
evidence that could be considered responsive to a discovery
request 	that 	asked 	for 	“[a]ny 	404(b) 	evidence.” 	Indeed,
Defendant’s specific discovery request was for “404(b) evidence”
that 	the 	State 	“intend[ed] 	to 	introduce” 	at 	“any 	hearing.”
Defendant has presented no evidence that, prior to his decision to
testify about his reasons for separating from Mother, the State
intended to elicit testimony from Mother about her reasons for
separating from Defendant. Absent an indication that, at some
point prior to trial, the State intended to present the challenged
evidence at trial pursuant to rule 404(b), the evidence would not
have been responsive to Defendant’s specific discovery request.
¶30 	In addition, the State did disclose to Defendant that it had
evidence regarding Mother’s reasons for divorcing him. The
Orem Department of Public Safety report attached to the State’s
discovery responses clearly indicates that Mother told police her
separation from Defendant was because of “drugs” and “sexual
affairs.” Defendant was therefore already privy to information
that Mother believed their separation was due to Defendant’s
inappropriate behavior, and that Mother’s view of the reasons for
their 	separation 	may 	differ 	from 	Defendant’s. 	Defendant
therefore 	cannot 	claim 	to 	be 	completely 	surprised 	by 	the
substance of Mother’s testimony.

State v. Miranda
20160457-CA 	13 	2017 UT App 203
¶31 	There is no indication that, prior to Defendant’s testimony
about his own views and about the motives for Mother and
Defendant’s separation, the State intended to introduce any
evidence on that point. Following Defendant’s testimony, the
State was entitled to seek admission of rebuttal evidence that it
may not have previously disclosed. Cf. State v. S.H., 2002 UT 118,
¶ 28, 62 P.3d 444 (stating that “when a defendant waives his right
not to testify, his testimony, like that of any other witness, is
subject to being impeached by cross-examination or by rebuttal
evidence”). The State properly disclosed its true rule 404(b)
witnesses, and properly disclosed the police report that detailed
some of Mother’s views regarding the reasons for the divorce.
Therefore, the State did not commit misconduct at all—let alone
misconduct that would warrant reversal or dismissal—when it
waited until the last day of trial to disclose to Defendant its intent
to call Mother as a rebuttal witness.
II
¶32 	Defendant next contends that the trial court erred in
admitting 	Mother’s 	rebuttal 	testimony 	and 	allowing 	cross-
examination of Defendant on the issue of the couple’s motives for
separating, 	which 	evidence 	Defendant 	contends 	was 	both
irrelevant 	and 	significantly 	more 	unfairly 	prejudicial 	than
probative. To succeed on a claim that the trial court committed
reversible error by admitting evidence that should have been
excluded under rules 402 and 403, Defendant must demonstrate
both that the trial court erred by admitting the evidence and that
there is a reasonable likelihood that the error affected the outcome
of the proceedings. See State v. Landon, 2014 UT App 91, ¶ 3, 326
P.3d 101. “For an error to require reversal, the likelihood of a
different 	outcome 	must 	be 	sufficiently 	high 	to 	undermine
confidence in the verdict.” State v. Knight, 734 P.2d 913, 920 (Utah
1987). For the reasons stated below, we agree with Defendant that
some of the challenged evidence was admitted in error. However,
we conclude that the error was not reversible, because we are

State v. Miranda
20160457-CA 	14 	2017 UT App 203
unpersuaded 	that 	there 	is 	a 	reasonable 	likelihood 	that 	the
outcome of the trial would have been different without the
evidence.
A
¶33 	Defendant first asserts that the challenged evidence was
irrelevant under rule 401 and thus inadmissible under rule 402.
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)-(b).
Irrelevant evidence is inadmissible. Utah R. Evid. 402.
¶34 	The concept of “relevance” is extremely broad. See State v.
Reece, 2015 UT 45, ¶ 64, 349 P.3d 712 (stating that “[e]vidence that
has even the slightest probative value is relevant under the rules
of 	evidence” 	(alteration 	in 	original) 	(citation 	and 	internal
quotation marks omitted); see also New Jersey v. T.L.O., 469 U.S.
325, 345 (1985) (interpreting Fed. R. Evid. 401, and stating that
“evidence, to be relevant to an inquiry, need not conclusively
prove the ultimate fact in issue, but only have any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence” (citation and internal quotation
marks omitted)). Here, the challenged evidence is not directly
relevant to the actual elements of the charged crimes. Indeed,
Defendant correctly points out that whether he abused Mother,
viewed pornography, used drugs, or engaged in adulterous
affairs “had no bearing” on whether he committed the crimes
with which he was charged. While the challenged evidence did
arguably rebut Defendant’s explanations for his separation from
Mother, 	Defendant 	rightly 	notes 	that 	“Mother’s 	motive 	for
divorce” was never at issue in this case.
¶35 	However, the evidence does have the potential to affect the
factfinder’s 	view 	of 	Defendant’s 	credibility, 	given 	that 	the
evidence rebuts some of the tangential testimony Defendant

State v. Miranda
20160457-CA 	15 	2017 UT App 203
voluntarily offered, namely, his reasons for separating from
Mother. Evidence that is not directly relevant to the issues in the
case, but that may shed light on the credibility of a witness, does
have probative value. See State v. Fairbourn, 2017 UT App 158, ¶ 44
(stating evidence that “lent credibility” to a witness’s “version of
events” had probative value); see also State v. Calliham, 2002 UT 87,
¶ 38, 57 P.3d 220 (stating that “[w]hether or not these witnesses
were credible was a fact of consequence in considering whether
[the defendant] was guilty”).
¶36 	We emphasize, however, that evidence relevant only to
tangential 	questions 	of 	witness 	credibility, 	and 	not 	directly
relevant to any of the elements of the crime or cause of action, may
have only minimal probative value, which must of course be
balanced in each particular case against the other considerations
listed in rule 403 (e.g., waste of time, the potential for unfair
prejudice). But the probative value of such evidence is not zero,
and therefore such evidence qualifies as “relevant” under the
broad definition of rule 401.
¶37 	In this case, the challenged evidence meets this standard. It
did have some tendency to affect the jury’s view of Defendant’s
credibility, and therefore it was “relevant” under the broad
definition of the rule. Accordingly, the trial court did not exceed
its discretion when it determined that the challenged evidence
was admissible under rule 402. However, because the reasons for
Mother and Defendant’s separation were not directly relevant to
the central question in the case—whether Defendant committed
the crimes with which he was charged—the probative value of the
evidence, while not zero, was relatively low.
B
¶38 	Defendant next argues that even if the challenged evidence
had minimal probative value, the trial court should have excluded
it under rule 403. A trial court “may exclude relevant evidence if
its probative value is substantially outweighed by a danger of . . .

State v. Miranda
20160457-CA 	16 	2017 UT App 203
unfair prejudice.” Utah R. Evid. 403. “Unfair prejudice results
only where the evidence has an undue tendency to suggest
decision upon an improper basis.” State v. Johnson, 2016 UT App
223, ¶ 35, 387 P.3d 1048 (brackets, citation, and internal quotation
marks omitted); see also State v. Hildreth, 2010 UT App 209, ¶ 44,
238 P.3d 444 (noting that unfairly prejudicial evidence has “the
tendency to suggest a verdict on an improper, emotional basis”).
Specifically, Defendant argues that the limited probative value of
the challenged evidence pales in comparison to the danger of
unfair 	prejudice 	the 	evidence 	presented, 	which 	Defendant
maintains is apparent “by its nature.”
¶39 	In response, the State correctly notes that evidence which
“may be excludable when elicited or offered by the prosecution to
prove its case-in-chief . . . may not be excludable . . . when the
responsibility 	for 	its 	introduction 	may 	be 	traced 	to 	the
defendant.” State v. Dalton, 2014 UT App 68, ¶ 29, 331 P.3d 1110
(second alteration in original) (citation and internal quotation
marks omitted). The State further notes that a “party cannot
introduce 	potentially 	inflammatory 	evidence 	and 	then 	later
complain when the opposing party attempts to rebut it.” State v.
Mahi, 2005 UT App 494, ¶ 17, 125 P.3d 103. Following these
precedents, the State insists that when Defendant testified about
Mother’s potential motives for coaching Victim to lie about him
and also discussed the reasons for his separation from Mother, he
“opened the door” to Mother’s testimony concerning her reasons
for separating.
¶40 	We agree with Defendant that he did not fully “open the
door” to all of the evidence the State presented on rebuttal. But by
taking the stand and testifying, Defendant invited at least some
response from the State. For instance, the trial court’s decision to
allow cross-examination of Defendant with regard to the reasons
for the separation was not improper. Once a defendant has chosen
to take the stand in his own defense, he must expect to be cross-
examined on the issues he brings up, see S.H., 2002 UT 118, ¶ 28

State v. Miranda
20160457-CA 	17 	2017 UT App 203
(stating that “when a defendant waives his right not to testify, his
testimony, like that of any other witness, is subject to being
impeached by cross-examination”), and the trial court’s decision
to allow cross-examination about other potential reasons for the
separation was not an abuse of discretion. Moreover, it would not
have been an abuse of discretion for the trial court to allow some
rebuttal testimony from Mother, to the effect that she was not
coaching and had never coached Victim to accuse Defendant of
inappropriate sexual contact, and that she was not cooperating
with the State merely in hopes of gaining advantages against
Defendant in divorce proceedings. But this is not the rebuttal
testimony that was offered, and we are not persuaded that
Defendant opened the door to any and all rebuttal evidence, no
matter how inflammatory.
¶41 	Certainly, Defendant in his direct examination testimony
did discuss, to some extent, the reasons for the deterioration of his
relationship with Mother. Accordingly, as noted above, Mother’s
rebuttal 	testimony 	as 	to 	her 	reasons 	for 	separating 	from
Defendant had some relevance from a credibility standpoint. But
invocation of “credibility” as the gateway to “relevance” does not
give a party free rein to introduce any evidence it likes. Before
such evidence may be admitted, there must be a principled and
reasoned analysis, under rule 403, of whether the evidence
warrants admission. The trial court must examine whether the
issue on which the party wishes to impeach is a tangential or
collateral issue, and whether introduction of the evidence would
lead to “undue delay” or a “wast[e of] time.” See Utah R. Evid.
403. Similarly, the trial court must examine whether admitting the
evidence could lead to a risk of unfair prejudice and, if so, how
serious that risk might be.
¶42 	In this case, the risk of unfair prejudice, given the nature of
the proffered evidence, was high. The evidence the State sought
to 	introduce 	was 	extremely 	inflammatory: 	that 	Defendant
physically abused Mother, that Defendant used cocaine, that

State v. Miranda
20160457-CA 	18 	2017 UT App 203
Defendant looked at pornography, and that Defendant had been
involved in “emotional” affairs. Many jurors would likely not
look kindly on individuals who engage in these activities. There
can be no question that this sort of evidence has the potential to
cause unfair prejudice. And, as noted, this evidence had very
minimal 	probative 	value. 	As 	our 	supreme 	court 	recently
observed, the admission of evidence that is “highly ‘attenuated
from the facts of the case’” at issue, offered by an “obviously
biased” witness and exploring “long-simmering, deep-seated
feuds,” can end up “subject[ing] the jury to time-consuming trials
within a trial” on peripheral issues that are only minimally
relevant. See State v. Martin, 2017 UT 63, ¶¶ 51–52 (quoting State
v. Tarrats, 2005 UT 50, ¶ 42, 122 P.3d 581). Such evidence should
be excluded generally, and should have been excluded here. The
trial court’s decision to allow Mother to testify on rebuttal that she
separated from Defendant because he was an abusive cheater who
looked at pornography and was addicted to drugs was a bridge
too far.
¶43 	We acknowledge that trial courts have quite a bit of
latitude to admit or exclude evidence pursuant to rule 403. See
Diversified Holdings, LC v. Turner, 2002 UT 129, ¶ 38, 63 P.3d 686.
As we have explained, the trial court’s decision to allow the State
to cross-examine Defendant about the reasons for his separation
from Mother was entirely proper. But a trial court’s discretion is
not unbounded, and we are persuaded that it was exceeded here
by the admission of Mother’s rebuttal testimony as to her motives
for separating from Defendant. Any probative value this evidence
had was substantially outweighed by the potential for unfair
prejudice.
III
¶44 	We must next consider whether the erroneous admission
of this rebuttal evidence requires reversal. “For an error to require
reversal, the likelihood of a different outcome must be sufficiently

State v. Miranda
20160457-CA 	19 	2017 UT App 203
high to undermine confidence in the verdict.” State v. Knight, 734
P.2d 913, 920 (Utah 1987). Defendant bears the burden of showing
that he was harmed by the trial court’s error. State v. Lafferty, 2001
UT 19, ¶ 35, 20 P.3d 342. In determining whether an error in a
criminal case is harmless, we may consider several factors,
including the following: “the importance of the complained-of
evidence to the prosecution’s case, whether that evidence was
cumulative, and the overall strength of the prosecution’s case.”
See State v. Shepherd, 2015 UT App 208, ¶ 28, 357 P.3d 598.
¶45 	Here, Defendant focuses all of his energies on a single
factor: the overall strength of the prosecution’s case. Specifically,
he alleges that there was a high likelihood of a different outcome
if Mother’s rebuttal evidence had been entirely excluded at trial
because this case was “basically [Defendant’s] word against
[Victim’s].” Defendant asserts that “it will always be a close case
when the evidence is merely one person’s word against another’s”
and argues that there was a reasonable likelihood of a different
outcome for Defendant if Mother’s rebuttal evidence had been
excluded.
¶46 	For several reasons, we are not persuaded that the trial
court’s error warrants reversal on the facts of this case. Without
commenting on the strength of the prosecution’s case,3 there are
several 	other 	factors 	that 	weigh 	strongly 	in 	favor 	of 	a
determination that the error was indeed harmless.
¶47 	First, 	and 	most 	significantly, 	all 	four 	inflammatory
elements of Mother’s rebuttal testimony were already in evidence
before she testified on rebuttal. Three of the four elements were
3. The trial court, in its ruling on Defendant’s motion for new trial,
did comment favorably on the strength of the prosecution’s case,
stating that Victim “gave direct evidence by testifying in detail
and credibly,” and that Victim’s testimony “was impressive and
resolute.”

State v. Miranda
20160457-CA 	20 	2017 UT App 203
already in evidence even before the trial court’s ruling, and prior
to either Mother’s challenged rebuttal testimony or Defendant’s
challenged cross-examination. Defendant himself had already
testified, on direct examination, that he had participated in
“emotional” affairs with other women during his marriages to
Mother. Victim had already testified, without objection, that she
had seen pornography on Defendant’s computer. And Mother
had already testified, without objection during the State’s case-in-
chief, 	that 	Defendant 	had 	been 	“very 	abusive.” 	The 	fourth
element of Mother’s rebuttal testimony—that Mother believed
that Defendant had a drug problem, even though Defendant
himself denied it—came into evidence, at least in substance,
during Defendant’s cross-examination, which we have already
determined was not improper. Thus, all four elements of Mother’s
rebuttal testimony were already in evidence, in some form, even
before Mother took the stand the second time, and therefore
Mother’s rebuttal testimony was entirely cumulative. Whether the
evidence is “cumulative” is one of the factors we are instructed to
examine. See id. Indeed, when erroneously admitted evidence is
cumulative of evidence already before the factfinder, the error
may be considered harmless. See, e.g., State v. Thomas, 777 P.2d 445,
450 (Utah 1989) (determining that the erroneous admission of an
officer’s 	testimony 	was 	harmless 	because 	it 	was 	“merely
cumulative” of other testimony); see also RJW Media v. Heath, 2017
UT App 34, ¶ 34, 392 P.3d 956 (holding that erroneous admission
of 	testimony 	was 	harmless 	“[b]ecause 	[the] 	testimony 	was
cumulative of evidence admitted from other sources,” and stating
that, 	due 	to 	the 	cumulative 	nature 	of 	the 	evidence, 	“our
confidence in the trial court’s ultimate decision here is not
undermined”).
¶48 	Second, the erroneously-admitted rebuttal evidence was
not central to the prosecution’s case, and did not directly shed
light on the central question. Indeed, for these reasons, we have
already determined that the evidence had only minimal probative
value. See Shepherd, 2015 UT App 208, ¶ 28 (instructing courts to

State v. Miranda
20160457-CA 	21 	2017 UT App 203
consider “the importance of the complained-of evidence to the
prosecution’s case”).
¶49 	Third, the trial court gave not one but three limiting
instructions, admonishing the jurors that they could use the
rebuttal evidence only for the specific and limited purpose of
rebutting Defendant’s testimony regarding the reasons for his
separation 	from 	Mother. 	These 	limiting 	instructions 	were
appropriately tailored to mitigate the risk of harm to Defendant.
While we do not operate under any “delusion that a limiting
instruction 	can 	undo 	serious 	prejudice,” 	we 	nevertheless
“recognize[] that limiting instructions . . . reduce somewhat the
danger of improper prejudice.” See State v. Peters, 796 P.2d 708,
712 (Utah Ct. App. 1990). Indeed, our supreme court has referred
to limiting instructions as “one of the most important tools by
which a court may remedy errors at trial.” State v. Harmon, 956
P.2d 262, 271 (Utah 1998). Also, we “generally presume that a jury
will follow the instructions given it,” especially when, as here,
Defendant has alleged no facts that would indicate that the jury
did not do so. See State v. Nelson, 2011 UT App 107, ¶ 4, 253 P.3d
1094 (citation and internal quotation marks omitted).
¶50 	Finally, the rebuttal evidence that the State presented was
short and quite limited. Mother’s rebuttal testimony lasted just a
few minutes and takes up only five pages of trial transcript.
Mother’s answers to the questions were brief, and the State did
not belabor the point by asking detailed follow-up questions. See
S.H., 2002 UT 118, ¶ 30 (stating that “the potential prejudicial
effect of the testimony was minimized” by the fact that the State
“refrained from questioning [the witness] about the prior incident
beyond those facts pertinent to her characterization of that
conversation”).
¶51 	For all of these reasons, we are not convinced that the
outcome of the trial would have been different if Mother had not
offered her rebuttal testimony. Accordingly, we conclude that the

State v. Miranda
20160457-CA 	22 	2017 UT App 203
trial court’s error in admitting that evidence does not warrant
reversal.4
CONCLUSION
¶52 	The trial court acted within its discretion in declining to
sanction the State for alleged discovery misconduct. The trial
court also acted within its discretion in allowing Defendant to be
cross-examined on issues he voluntarily brought up during his
direct examination. While the trial court erred in admitting
Mother’s rebuttal testimony, Defendant has failed to show that he
was harmed by that error. Accordingly, we affirm Defendant’s
convictions.
4. Defendant also appeals the trial court’s denial of his motion for
a 	new trial. 	Because 	we 	have 	determined 	that 	part 	of 	the
challenged evidence was properly admitted, and that the error
caused 	by 	the 	admission 	of 	Mother’s 	rebuttal 	evidence 	is
harmless, any error committed by denying Defendant’s motion
for a new trial is also harmless. See State v. Vigil, 2013 UT App 167,
¶ 29, 306 P.3d 845 (stating that “because any underlying error was
harmless . . . any error in denying [the defendant’s] motion for a
new trial was likewise harmless”).