State v. Murphy

2019 UT App 64
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
A NTHONY C HARLES M URPHY ,
Appellant.
Opinion
No. 20170193-CA
Filed April 25, 2019
First District Court, Logan Department
The Honorable Thomas Willmore
No. 091100683
Michael C. McGinnis, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGE JILL M. POHLMAN concurred. JUDGE R YAN M. HARRIS
concurred, with opinion.
ORME, Judge:
¶1 	Defendant 	Anthony 	Charles 	Murphy 	appeals 	his
convictions 	for 	aggravated 	sexual 	assault, 	aggravated
kidnapping, forcible sexual abuse, and aggravated assault of his
then-wife (Victim). He argues that the trial court abused its
discretion by admitting evidence of other allegations of sexual
assault made against him pursuant to rule 404(b) of the Utah
Rules of Evidence and by denying his motions for a mistrial. He
also alleges that he received ineffective assistance when his trial

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20170193-CA 	2 	2019 UT App 64
counsel did not call expert witnesses to corroborate his version
of events.1 We affirm.
BACKGROUND2
¶2 	Defendant and Victim married in August 2008. Soon after,
Defendant began to verbally, physically, and sexually abuse
Victim, culminating in the events of May 31, 2009, for which he
was charged with, and convicted of, various crimes.
¶3 	The day in question began “as a fun, relaxing, playful
day.” The couple spent most of the day in their backyard
cultivating their garden and target shooting with BB guns.
Defendant began drinking around 10 a.m., and Victim had her
first 	drink 	around 	noon. 	All 	was 	well 	until 	approximately
7:30 p.m. By then, both Victim and Defendant had consumed
copious amounts of alcohol. Defendant received a text message
from a woman whom Victim had previously caught flirting with
him. Defendant’s receipt of the text message infuriated Victim,
and she began yelling at him. He responded by laughing at her.
Exasperated, Victim left Defendant in the backyard and went to
bed.
¶4 	Defendant later entered the bedroom and asked Victim if
they could “work this out.” Victim returned with Defendant to
the backyard, and the two started dancing. After dancing for a
short while, Defendant began spinning Victim quickly around
1. Defendant raises other arguments, but we do not reach them
because they were not preserved for appeal. See infra ¶¶ 14, 16,
18.
2. “On appeal, we construe the record facts in a light most
favorable to the jury’s verdict” and recite the relevant facts
accordingly. State v. Maestas, 2012 UT 46, ¶ 3, 299 P.3d 892
(quotation simplified).

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20170193-CA 	3 	2019 UT App 64
until she fell to the ground. Victim asked him to stop because he
was hurting her. Defendant ignored her pleas, pulled her up
from 	the 	ground, 	and 	tore 	off 	her 	shirt, 	bra, 	shorts, 	and
underpants. Victim screamed for help, and Defendant told her to
“shut up” and that “[n]obody was coming to save [her].”
¶5 	Naked, Victim fled into the house. She ran upstairs to the
second floor seeking to dress, retrieve her car keys, and leave the
house. Defendant caught up with her when she reached the
second 	floor 	and 	pushed 	her 	down 	the 	staircase. 	He 	then
dragged her into the family room, repeatedly telling her, “you’ll
remember me.” In the family room, Defendant straddled Victim
on the floor with both knees on her chest, constraining her
breathing. In this position, he hit her multiple times in the face
with his erect penis and repeated, “[S]uck it. Suck it, bitch.”
Victim initially resisted but eventually gave in. “Off and on” for
the next twenty minutes, Defendant forced Victim to perform
oral sex on him.
¶6 	Victim attempted to crawl away, but when she reached
the hallway, Defendant lifted her up by the throat, pressed her
against the wall, and strangled her. He told her, “I’m going to
kill you, bitch,” and Victim passed out shortly thereafter. When
she regained consciousness, she found herself soaked in her own
urine. Defendant then dragged her into the upstairs bathroom,
threw her into the bathtub, turned on the cold water, and
ordered her to “get cleaned up.”
¶7 	Victim’s next memory was that of Defendant pushing her
down the stairs for a second time after she attempted to escape
through the back door. He then dragged her into the back
bedroom, used his knees to pin her down by her shoulders, and
again forced his penis into her mouth. Victim choked on his
penis and lost consciousness for a second time.
¶8 	Sometime 	after 	midnight, 	Victim 	was 	finally 	able 	to
escape when Defendant passed out due to his excessive alcohol
consumption. Victim put on a robe, grabbed her car keys, and

State v. Murphy
20170193-CA 	4 	2019 UT App 64
drove to her friends’ house. They gave her a mild sedative, and
Victim spent the night at their house. She woke the next day
feeling like a “punching bag,” “[e]verything hurt.” Bruises had
started forming on her face and on her chest, where Defendant
had knelt on her while pinning her down. Her throat was
extremely sore. She described that “it felt like the worst case of
strep throat [she] had ever had.”
¶9 	Fearing the loss of her job, Victim insisted on going to
work 	that 	day 	despite 	her 	injuries. 	One 	of 	her 	friends
accompanied her back to her house so that she could get ready.
At the house, they found Defendant passed out on a couch.
Victim quickly showered, dressed, and applied heavy makeup to
cover 	the 	bruises 	on 	her 	face. 	Despite 	these 	efforts, 	her
coworkers immediately noticed that her face was red, swollen,
and covered in bruises. One coworker described Victim’s face as
“grotesquely swollen.” Victim, who usually had a gregarious
personality, was also “unnaturally subdued,” “not talkative,”
and attempted to hide her face from her coworkers. After much
coaxing, Victim admitted to a coworker that she had been
physically assaulted. Against Victim’s wishes, her coworkers
then contacted the authorities.
¶10 	The 	officer 	who 	responded 	to 	the 	call 	testified 	that
Victim’s face “was very battered” and that she was “probably
one of the worst victims [he] had seen.” Her eye sockets and
cheeks were swollen, her lip was cut, and there was redness
around 	her 	neck, 	which 	appeared 	to 	be 	consistent 	with
strangulation. The officer interviewed Victim and photographed
her injuries. The next day, Victim visited a doctor. The doctor
noted 	that 	her 	rib 	cage 	was 	“very 	tender” 	and 	that 	pain
prevented her from being able to fully open her jaw. He also
noted bruising on her upper chest, right leg, and lip.
¶11 	A few days later, two police officers accompanied Victim
on a walkthrough of her house to collect evidence. The police
observed a handprint on the wall against which Defendant had
strangled 	Victim. 	Directly 	underneath 	the 	handprint, 	where

State v. Murphy
20170193-CA 	5 	2019 UT App 64
Victim had urinated, the officers noted that the carpet was
discolored from an attempted cleaning. And in the laundry
room, they found bedding with blood stains and torn clothing
that matched Victim’s description of what she had worn on the
day of the assault.
¶12 	The 	State 	charged 	Defendant 	with 	aggravated 	sexual
assault and aggravated kidnapping, first-degree felonies; forcible
sexual abuse, a second-degree felony; and aggravated assault, a
third-degree felony. He was tried in 2016.3 A jury found him
guilty of all charges. He was sentenced to two consecutive
fifteen-years-to-life sentences for his aggravated sexual assault
and 	aggravated 	kidnapping 	convictions, 	and 	concurrent
sentences of one-to-fifteen years and zero-to-five years for his
forcible 	sexual 	abuse 	and 	aggravated 	assault 	convictions,
respectively.
ISSUES AND STANDARDS OF REVIEW
¶13 	Defendant raises six claims on appeal, three of which we
do not address on the merits. First, he argues that the trial court
erred in its application of rules 404(b) and 403 of the Utah Rules
of Evidence when it admitted evidence of additional allegations
of sexual assault made against him by other women. Due to a
trial court’s advantaged position over that of appellate courts “to
assess the avowed basis for evidence of prior misconduct—and
to judge its likely effect in prejudicing or confusing the jury”—
we review a trial court’s decision to admit evidence under rules
404(b) and 403 for abuse of discretion. See State v. Thornton, 2017
UT 9, ¶ 56, 391 P.3d 1016.
¶14 	Second, Defendant contends that the State committed
prosecutorial misconduct when it made inappropriate comments
3. Although the State charged Defendant in 2009, various pretrial
matters significantly delayed the trial.

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20170193-CA 	6 	2019 UT App 64
during the rebuttal portion of its closing arguments. Generally,
“insofar as this issue was preserved, we will review the trial
court’s rulings on prosecutorial misconduct claims for an abuse
of discretion.” State v. Fairbourn, 2017 UT App 158, ¶ 13, 405 P.3d
789 	(quotation 	simplified). 	Otherwise, 	we 	typically 	review
unpreserved 	issues 	only 	when 	a 	valid 	exception 	to 	the
preservation rule applies. See State v. Johnson, 2017 UT 76, ¶ 15,
416 P.3d 443. Here, Defendant’s counsel did not object to the
allegedly inappropriate comments made by the State on the
ground that they amounted to prosecutorial misconduct.4 And
because Defendant has not argued that an exception to the
preservation rule applies, we have no occasion to address the
merits of this issue on appeal. See Oseguera v. State, 2014 UT 31,
¶ 15, 	332 	P.3d 	963 	(“When 	a 	party 	seeks 	review 	of 	an
unpreserved objection, we require that the party articulate an
appropriate 	justification 	for 	appellate 	review 	in 	the 	party’s
opening brief.”) (quotation simplified).
¶15 	Third, Defendant asserts that the trial court erred in
denying his motions for a mistrial. We review a trial court’s
ruling on a motion for a mistrial for abuse of discretion and
reverse only if the court’s decision “is plainly wrong in that the
incident so likely influenced the jury that the defendant cannot
4. 	Defendant 	argues 	that 	this 	issue 	was 	preserved 	by 	an
objection his trial counsel made to the comments during the
State’s rebuttal. But his counsel did not object to the comments
on the ground that they amounted to prosecutorial misconduct,
as he now asserts on appeal. Rather, his counsel objected to the
remarks on the ground that they exceeded the scope of the
defense’s closing argument. The limited nature of the objection
did not present the trial court with an opportunity to rule on the
State’s 	alleged 	misconduct, 	thereby 	rendering 	the 	issue
unpreserved for appeal. See Oseguera v. State, 2014 UT 31, ¶ 10,
332 P.3d 963 (“[A] party that makes an objection based on one
ground does not preserve any alternative grounds for objection
for appeal.”).

State v. Murphy
20170193-CA 	7 	2019 UT App 64
be said to have had a fair trial.” State v. Allen, 2005 UT 11, ¶ 39,
108 P.3d 730 (quotation simplified).
¶16 	Fourth, Defendant claims that his aggravated kidnapping
and aggravated sexual assault convictions should merge under
the common-law merger test of State v. Finlayson, 2000 UT 10, 994
P.2d 1243, overruled by State v. Wilder, 2018 UT 17, 420 P.3d 1064.5
Defendant recognizes that this claim was not fully preserved
below6 and urges us to “review this issue under [the] plain error
and 	ineffective 	assistance 	of 	counsel” 	exceptions 	to 	the
preservation rule. But he focuses his argument on the merits of
the claim and does not address this unpreserved issue through
the lens of either of these exceptions. Accordingly, we decline to
reach the merits of this claim. See True v. Utah Dep’t of Transp.,
2018 UT App 86, ¶ 30, 427 P.3d 338 (“If a party fails to argue and
5. Although we do not address this claim on the merits, we take
this opportunity to recognize that the common-law merger test
first articulated in State v. Finlayson, 2000 UT 10, 994 P.2d 1243,
and which forms the basis of Defendant’s claim on appeal, was
abrogated after the parties submitted their opening briefs. In
State v. Wilder, 2018 UT 17, 420 P.3d 1064, our Supreme Court
renounced the common-law merger test and held “that the
controlling test is the statutory standard set forth in Utah Code
section 76-1-402(1).” Id. ¶ 38.
6. Following trial, Defendant moved the trial court to merge his
(1) aggravated kidnapping conviction into his aggravated assault
conviction and (2) his aggravated sexual assault conviction into
his forcible sexual abuse conviction, both which the trial court
denied. But Defendant does not appeal the trial court’s denial of
this motion. Instead, he argues for the first time on appeal that
his aggravated kidnapping conviction should merge into his
aggravated sexual abuse conviction. Because Defendant did not
raise this particular merger claim before the trial court, this issue
is unpreserved. See Oseguera v. State, 2014 UT 31, ¶ 10, 332 P.3d
963.

State v. Murphy
20170193-CA 	8 	2019 UT App 64
establish 	the 	applicability 	of 	a 	preservation 	exception, 	the
appellate court will not reach the unpreserved issue.”). See also
State v. Ring, 2018 UT 19, ¶ 35, 424 P.3d 845 (stating that in order
to prevail on a claim of ineffective assistance of counsel, a
defendant must show (i) “that his trial counsel’s performance
was 	deficient” 	and 	(ii) 	“that 	the 	deficient 	performance
prejudiced the defense”) (quotation simplified); Johnson, 2017 UT
76, ¶ 20 (stating that “plain error is not established” unless the
defendant shows that “(i) an error exists; (ii) the error should
have 	been 	obvious 	to 	the 	trial 	court; 	and 	(iii) the 	error 	is
harmful”) (quotation simplified).
¶17 	Fifth, Defendant claims to have received constitutionally
ineffective 	assistance 	from 	his 	trial 	counsel. 	“A 	claim 	of
ineffective assistance of counsel raised for the first time on
appeal presents a question of law which we consider de novo.”
State v. Courtney, 2017 UT App 172, ¶ 20, 424 P.3d 198 (quotation
simplified).
¶18 	Lastly, Defendant argues that the evidence presented at
trial was insufficient to support the jury’s verdict. However, as
with his second and fourth claims, this issue is not preserved
and we do not reach it.7
7. An insufficiency-of-the-evidence argument is preserved for
appeal when raised in an appropriate motion. Defendant claims
that this issue was preserved by his motion to arrest judgment,
which his trial counsel filed following the jury’s verdict. See State
v. Holgate, 2000 UT 74, ¶ 16, 10 P.3d 346. See also Utah R. Crim. P.
23. But that motion asked the trial court to arrest judgment based
on (1) the admission of the rule 404(b) evidence, Defendant’s
first claim on appeal, and (2) the presentation of evidence to the
jury that had previously been ruled inadmissible by the trial
court, Defendant’s third claim on appeal. The motion did not
argue 	that 	insufficient 	evidence 	supported 	the 	jury’s 	guilty
verdict. And because Defendant has not argued an exception to
(continued…)

State v. Murphy
20170193-CA 	9 	2019 UT App 64
ANALYSIS
I. 404(b) Evidence
¶19 	In 2010, the State initially sought to admit 404(b) evidence
that Defendant had similarly assaulted his then estranged—now
ex—wife (GM). The State sought to have the evidence admitted
for the non-character purpose of showing Defendant’s intent and
the absence of mistake. The trial court denied this motion.
Defendant contends that the trial court erroneously granted the
State’s subsequent motion to admit evidence under rule 404(b) of
the Utah Rules of Evidence. Specifically, he argues that it failed
to 	sufficiently 	analyze 	the 	evidence 	under 	rule 	403 	before
granting the motion.
¶20 	The State filed its second motion to admit evidence under
rule 404(b) in 2014. This time, in addition to the assault involving
GM, the State sought to admit evidence of three other allegations
of sexual assault made against Defendant by other women. The
motion sought to have evidence concerning all four incidents
admitted under the doctrine of chances to refute Defendant’s
claim that he acted in self-defense and that Victim had fabricated
her account.8
(…continued)
the preservation rule, we do not reach the merits of this claim.
See supra ¶ 14.
8. Defendant claimed that Victim was the aggressor. He testified
at trial that Victim went into “a jealous rage” after he received a
text message from the woman she disliked. According to him,
Victim grabbed a paring knife and, although not necessarily
trying to stab him, she hit him multiple times with it and cut him
on the chest. In response, he pushed her back by hitting her in
the chin with the palm of his hand. Fearing that she would lunge
at him, he then pushed her further back by kicking her in the
(continued…)

State v. Murphy
20170193-CA 	10 	2019 UT App 64
¶21 	Concluding 	that 	the 	State 	sought 	to 	introduce 	the
evidence for a proper non-character purpose, that the evidence
was 	relevant, 	and 	that 	it 	would 	not 	unfairly 	prejudice
Defendant, the trial court granted the State’s motion to introduce
evidence 	of 	the 	four 	instances 	of 	alleged 	misconduct. 	The
allegations of sexual assault were made by four women in three
different states over the span of sixteen years. In addition to GM,
these witnesses were MM, AK, and AM.
¶22 	MM accused Defendant of assaulting her while he was
out on bond for attacking Victim. In 2013, MM met Defendant at
a hotel in West Valley City, Utah, to give him a sensual massage
that concluded with a “hand job.” Defendant had consumed
alcohol that night, and while MM performed the latter portion of
their arrangement, Defendant began pulling on her underwear.
MM repeatedly told him “no” and pushed his hand away until
Defendant, having become enraged, wrestled her to the floor.
Defendant reacted to MM’s screams by placing his hands around
her neck with his thumbs in her mouth and strangling her. MM
did not lose consciousness, but her vision “went black,” she saw
“stars,” and she became “dizzy.” Defendant eventually let go of
MM’s throat and climbed off her, but he did not allow MM to get
her phone. She was able to escape when the hotel’s front desk
attendant, 	responding 	to 	a 	noise 	complaint, 	interceded.
Defendant was subsequently arrested and charged. Prior to trial
in the instant case, but after the hearing on the State’s second
404(b) 	motion, 	Defendant 	was 	convicted 	of 	assault 	and
patronizing a prostitute in the case involving MM.
¶23 	AK 	accused 	Defendant 	of 	sexually 	assaulting 	her 	in
Kentucky in 2003. She and Defendant were friends and, on the
(…continued)
chest and shoulder area. She then dropped the knife, grabbed
her car keys, and left their house. He testified he acted in self-
defense and that Victim fabricated her account of physical and
sexual abuse.

State v. Murphy
20170193-CA 	11 	2019 UT App 64
night in question, the two went for a drive. AK drank whiskey
and passed out during the drive. She did not remember whether
Defendant also consumed alcohol. When she woke up, she
found 	that 	her 	pants 	and 	underwear 	had 	been 	removed.
Defendant then began insisting that she had promised “to suck
his penis” and demanded that she make good on that promise.
When AK refused, he hit her in the face with a folder and shoved
her head down toward his penis, forcing it into her mouth. AK
cried and begged him to let her go home. Defendant repeatedly
hit her and, knowing she had a phobia of water, threatened to
drown her in a nearby creek if she did not stop crying. He forced
her to sign a document stating that she consented to sex with
him. He then laid her down in the front seat of the vehicle and
vaginally raped her after unsuccessfully attempting to penetrate
her anus. Following the rape, he drove AK to her mother’s
house. 	Defendant 	was not 	charged 	in 	connection 	with 	this
incident.
¶24 	AM 	accused 	Defendant 	of 	sexually 	assaulting 	her 	in
Kentucky in 2001, when she was fifteen years old. She was the
daughter of one of Defendant’s friends. On the day of the
assault, her father and Defendant returned from a bar “pretty
intoxicated” and continued drinking in her house. Defendant
attempted to dance with AM but, feeling uncomfortable, she
refused. She later went to bed and was awakened by Defendant
climbing on top of her. He inhibited her breathing by pressing
his hand down hard against her face, fondled her breasts under
her 	shirt, 	kissed 	her 	neck, 	and 	touched 	her 	genitals. 	AM
eventually succeeded in freeing her mouth by biting Defendant’s
hand, and she screamed to her father for help. Her father ran
into the room and pulled Defendant off her. She ran into another
bedroom, but Defendant pursued, tackled, and touched her
again. AM’s father once more managed to pull him away from
her. 	AM 	then 	ran 	to 	a 	neighbor’s 	house. 	Defendant 	again
pursued AM, attempted to break into the neighbor’s house, and
assaulted the neighbor’s husband. Defendant was charged with
sexual abuse of AM and with assault of the neighbor’s husband.

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20170193-CA 	12 	2019 UT App 64
A jury convicted Defendant on the assault charge, but it could
not reach a verdict on the sexual abuse charge.
¶25 	GM accused Defendant of assaulting her in Florida in
1997.9 She and Defendant were married but separated at the time
of the alleged assault. One early morning in June, Defendant
broke into her house. He smelled of alcohol and wanted to talk.
When she refused, he grabbed her by the arm, said “okay, no
more talk,” and dragged her into an unoccupied bedroom.
During the hours-long sexual assault that ensued, Defendant
twice vaginally raped GM, attempted anal penetration, and sat
on her chest and forced his penis into her mouth. Defendant was
arrested and charged with aggravated kidnapping and sexual
assault. Two months later, while out on bond, Defendant again
broke into GM’s house. This time, GM pulled a gun from
underneath her pillow and shot him five times. The State of
Florida 	entered 	into 	a 	plea 	deal 	with 	Defendant 	in 	which
Defendant pled guilty to one count of second-degree burglary in
exchange for the dismissal of the aggravated kidnapping and
sexual assault charges. This generous deal—or so the Utah
prosecutor suggested in the case before us—was the product of
the five bullet holes that Defendant sustained in the course of the
second intrusion into GM’s home.
¶26 	In conjunction with the testimonies of MM, AK, and AM,
the State called a statistician as an expert witness. The statistician
testified that there is a 0.0004% chance of a person being arrested
for rape or attempted rape in Utah. The probability of being
twice accused of or arrested for rape or attempted rape was one
in four million; thrice was one in eight billion; four times was
one in sixteen trillion; and five times was one in thirty-two
quadrillion. 	The 	odds 	of 	being 	falsely 	accused 	of 	rape 	or
attempted 	rape 	on 	five 	separate 	occasions 	were 	further
9. GM’s testimony was ultimately excluded at trial as part of the
court’s ruling on Defendant’s motion for a mistrial. See infra
¶¶ 34–35.

State v. Murphy
20170193-CA 	13 	2019 UT App 64
increased, 	according 	to 	the 	expert, 	when 	similar 	claims 	of
alcohol consumption or strangulation were factored into the
analysis.
¶27 	Rule 404(b) of the 	Utah Rules of Evidence generally
permits evidence of a defendant’s other crimes, wrongs, or bad
acts so long as the evidence has a “probative value other than to
show an evil propensity or criminal temperament.” State v.
Fedorowicz, 2002 UT 67, ¶ 27, 52 P.3d 1194 (quotation simplified).
The doctrine of chances is applied in the context of rule 404(b).
State v. Lowther, 2017 UT 34, ¶ 31, 398 P.3d 1032. It is “a theory of
logical relevance, which a proponent may use to argue that,
using 	probability 	reasoning, 	a 	factfinder 	may 	infer 	that 	a
disputed fact is more likely or less likely to be true due to the
recurrence of some improbable event.” State v. Labrum, 2014 UT
App 5, ¶ 26 n.9, 318 P.3d 1151 (quotation simplified). In other
words, “the claim is based on the disparity between the expected
and actual values: How many incidents would we expect the
average person to be involved in, and how many incidents was
the 	defendant 	involved 	in?” 	Edward 	J. 	Imwinkelried, 	An
Evidentiary Paradox: Defending the Character Evidence Prohibition by
Upholding a Non-Character Theory of Logical Relevance, The Doctrine
of Chances, 40 U. Rich. L. Rev. 419, 448 (2006). See State v. Lopez,
2018 UT 5, ¶ 50, 417 P.3d 116. Thus far, Utah appellate courts
have upheld the application of the doctrine of chances for the
purposes 	of 	showing 	intent; 	establishing 	lack 	of 	mistake,
coincidence, or accident; rebutting a charge of fabrication; and in
cases involving rape, showing the defendant’s requisite mens rea
or the victim’s lack of consent.10 Id. ¶ 49. See State v. Lomu, 2014
UT App 41, ¶ 25, 321 P.3d 243.
10. It is currently unclear whether the doctrine of chances may be
applied to show identity. See State v. Lopez, 2018 UT 5, ¶ 49, 417
P.3d 116 (“[W]e have not previously applied the doctrine of
chances to show identity . . . [and] need not resolve whether such
application would be proper because the doctrine is inapplicable
(continued…)

State v. Murphy
20170193-CA 	14 	2019 UT App 64
¶28 	As with other 404(b) evidence, courts must undertake a
three-step analysis before admitting evidence under the doctrine
of chances. See State v. Killpack, 2008 UT 49, ¶ 45, 191 P.3d 17
(“Such evidence is admissible if it (1) is relevant to, (2) a proper,
non-character purpose, and (3) does not pose a danger for unfair
prejudice that substantially outweighs 	its probative value.”)
(quotation simplified). The first and second steps, governed by
Utah Rules of Evidence 402 and 404(b), respectively, require trial
courts to ensure that the evidence is being offered for, and is
relevant to, a proper non-character purpose. See Lowther, 2017
UT 34, ¶ 32. Under the doctrine of chances, this determination
requires a four-part analysis of “(1) materiality, (2) similarity,
(3) independence, and (4) frequency.”11 Id. Defendant does not
(…continued)
to the set of facts presented here.”). See also State v. Lucero, 2014
UT 15, ¶ 15 n.14, 328 P.3d 841 (rejecting, on procedural grounds,
the argument that evidence was admissible under the doctrine of
chances to show identity), abrogated on other grounds by State v.
Thornton, 2017 UT 9, 391 P.3d 1016.
11. 	Because 	Defendant 	does 	not 	challenge 	the 	trial 	court’s
four-part analysis on appeal, we do not address the foundational
requirements further other than to clarify a point of confusion
that was expressed during oral argument and is evident in
Defendant’s briefing. In his reply brief, Defendant argues that
our Supreme Court in State v. Lopez, 2018 UT 5, 417 P.3d 116—an
opinion the Court issued after the parties’ opening briefing but
before Defendant submitted his reply brief—“set[] a higher legal
standard on similarity and before a prior act can be admitted
under the doctrine of chances.” Namely, he argues “the recent
Lopez case states that the prior incidents must have been ‘highly
similar’ to be introduced as evidence under the doctrine of
chances,” 	and 	the 	trial 	court 	therefore 	erred 	in 	admitting
evidence 	of 	the 	other 	allegations 	of 	sexual 	assault 	brought
against Defendant. However, Lopez did not heighten the legal
(continued…)

State v. Murphy
20170193-CA 	15 	2019 UT App 64
(…continued)
standard of “similarity,” the second element of the four-part test,
as Defendant claims. When our Supreme Court first announced
the doctrine of chances in State v. Verde, 2012 UT 60, 296 P.3d 673,
it stated that each incident “must be roughly similar to the charged
crime. . . . [They all] must at least fall into the same general
category.” 	Id. 	¶¶ 	58‒59 	(emphasis 	in 	original) 	(quotation
simplified), abrogated on other grounds by State v. Thornton, 2017
UT 	9, 	391 	P.3d 	1016. 	It 	also 	explicitly 	distinguished 	the
“similarity” requirement of the doctrine of chances from that
used to prove identity through modus operandi: “The required
similarity here need not be as great as that necessary to prove
identity under a ‘pattern’ theory.” Id. ¶ 58. See Modus Operandi,
Black’s Law Dictionary 1095 (9th ed. 2009) (defining modus
operandi as “[a] method of operating or a manner of procedure;
esp. 	a 	pattern 	of 	criminal 	behavior 	so 	distinctive 	that
investigators attribute it to the work of the same person”). See
also State v. Lucero, 2014 UT 15, ¶ 15, 328 P.3d 841 (“In seeking
admission of prior acts for the purpose of proving ‘identity,’
parties are most often actually seeking to admit evidence of an
intermediate inference, such as modus operandi, that bears on
the ultimate issue of identity.”), abrogated on other grounds by
Thornton, 2017 UT 9. The inclusion of 404(b) evidence for the
purpose of establishing identity through modus operandi—a
separate basis from the doctrine of chances—sets a much higher
standard of similarity. In Lopez, in the context of discussing
modus operandi, 	our 	Supreme 	Court reiterated 	that 	higher
standard: “To use a prior act to show modus operandi, the prior
act must bear a very high degree of similarity to the charged act
and demonstrate a unique or singular methodology.” 2018 UT 5,
¶ 40 (quotation simplified). Although our Supreme Court did
discuss the doctrine of chances later in Lopez, see id. ¶¶ 48‒60, it
had not yet broached the subject at the time it provided the
heightened standard for evaluating the admissibility of evidence
under the modus operandi exception of rule 404(b). Thus, the
(continued…)

State v. Murphy
20170193-CA 	16 	2019 UT App 64
challenge the trial court’s analysis with respect to these factors,
instead concentrating his attack on step three.
¶29 	The third step requires the court to conduct a rule 403
balancing test, see id., which generally focuses on whether the
“probative value [of the evidence] is substantially outweighed
by a danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence,” Utah R. Evid. 403. Under the
doctrine of chances, the focus of the rule 403 analysis is primarily
“on the risk that the jury may draw an improper character
inference from the evidence or that it may be confused about the
purpose of the evidence.” State v. Lowther, 2015 UT App 180,
¶ 22, 356 P.3d 173 (quotation simplified), aff’d on other grounds,
2017 UT 34, 398 P.3d 1032. Trial courts “are not bound to any
particular set of factors or elements when conducting a rule 403
balancing test,” and “may consider any relevant fact” in doing
so, including some of the elements of the doctrine of chances’
(…continued)
standard for “similarity” under the doctrine of chances analysis
remained unaltered in Lopez. The other incidents need only “be
roughly similar to the charged crime.” Verde, 2012 UT 60, ¶ 58
(emphasis in original).
Because 	the 	“similarity” 	standard remains 	unchanged
and because Defendant challenges the trial court’s “similarity”
analysis for the first time in his reply brief, we do not further
address this argument other than to clarify that the standard of
“similarity” applied by a court is dependent on the purpose for
which 	the 	evidence 	is 	offered 	under 	rule 	404(b)—to 	show
identity through modus operandi; or to allow a jury to infer guilt
based 	on 	the 	unusual 	frequency 	that 	rare 	events, 	such 	as
accusations of sexual assault, befell a defendant. See Allen v. Friel,
2008 UT 56, ¶ 8, 194 P.3d 903 (“It is well settled that issues raised
by an appellant in the reply brief that were not presented in the
opening brief are considered waived and will not be considered
by the appellate court.”) (quotation simplified).

State v. Murphy
20170193-CA 	17 	2019 UT App 64
four-part 	test—materiality, 	similarity, 	independence, 	and
frequency. State v. Lowther, 2017 UT 34, ¶¶ 29, 41, 398 P.3d 1032.
¶30 	On appeal, Defendant does not find fault with the trial
court’s determinations under the first and second analytic steps,
but he argues that the trial court failed to conduct a proper
analysis 	under 	rule 	403 	before 	admitting 	evidence 	of 	the
aforementioned allegations made against him under the doctrine
of chances. He contends that the other misconduct evidence
confused the jury and unfairly prejudiced his defense.
¶31 	Having concluded that the four other allegations of sexual
misconduct 	made 	against 	Defendant 	satisfied 	the 	four
foundational requirements of the doctrine of chances, the trial
court used the reasoning behind the doctrine to conclude that
the “information will be more helpful to a jury than harmful in
eliciting truth.” It reasoned, quoting Verde, that “when two (or
more) persons tell similar stories, the chances are reduced that
both are lying or that one is telling the truth and the other is
coincidentally telling a similar false story.” State v. Verde, 2012
UT 60, ¶ 48, 296 P.3d 673 (quotation simplified), abrogated on
other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016. We
see no abuse of discretion in the trial court’s analysis.12 See
12. Defendant argues that the trial court had previously ruled
the evidence to be unfairly prejudicial in its denial of the State’s
first 404(b) motion. But this alone is insufficient to conclude that
the trial court abused its discretion in later concluding that the
evidence was not unfairly prejudicial. Rule 403 of the Utah Rules
of Evidence provides, with our emphasis, that a “court may
exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice.” The State
initially attempted to admit evidence of GM’s allegations against
Defendant for the purpose of showing Defendant’s intent. In this
context, the trial court found that the prejudicial effect of GM’s
testimony 	substantially 	outweighed 	its 	probative 	value 	in
establishing 	Defendant’s 	intent. 	When 	the 	State 	brought 	its
(continued…)

State v. Murphy
20170193-CA 	18 	2019 UT App 64
Thornton, 2017 UT 9, ¶ 56 (“[T]he question for us is not whether
we would have admitted this evidence. It is whether the district
judge abused his broad discretion in doing so.”).
¶32 	Defendant’s contention that the jury was likely to be
confused as to the purpose of the 404(b) evidence is likewise
unavailing. The trial court twice instructed the jury as to the
purpose of the 404(b) evidence and the limited nature in which
the 	jurors 	were 	to 	consider 	such 	evidence. 	“We 	generally
presume that a jury will follow the instructions given it,” and
Defendant has not provided evidence to suggest that the jury in
the present case did otherwise. State v. Beckering, 2015 UT App
53, ¶ 24, 346 P.3d 672 (quotation simplified).
¶33 	For these reasons, we conclude that the trial court did not
abuse its discretion by concluding that the 404(b) evidence need
not be excluded under rule 403.
II. Mistrial Motions
¶34 	Defendant next appeals the trial court’s denial of his
motions for a mistrial. He contends that unfairly prejudicial
information was presented to the jury, the trial court’s curative
measures were ineffective, and the court therefore abused its
discretion in denying his motions. Defendant’s trial counsel first
(…continued)
second 404(b) motion, it sought to introduce evidence of three
allegations in addition to that of GM for the purpose of rebutting
Defendant’s claim that Victim fabricated her account. When
presented with the second motion, the trial court found that the
new 	purpose—to 	rebut 	a 	charge 	of 	fabrication—and 	the
increased 	number 	of 	roughly 	similar 	allegations 	of 	sexual
misconduct 	made 	against 	Defendant 	greatly 	enhanced 	the
probative value of the evidence. As such, in that context, the
danger of unfair prejudice no longer substantially outweighed
the probative value of the evidence.

State v. Murphy
20170193-CA 	19 	2019 UT App 64
moved 	for 	a 	mistrial 	after 	Victim 	testified 	that 	GM 	shot
Defendant five times—evidence the trial court had previously
ruled inadmissible unless Defendant first opened the door to it.
The testimony in question was given on the second day of trial
and was elicited in the following manner:
[The State]: At the time that you reported this
assault to the Smithfield Police Department were
you aware of any general allegation that [GM] had
made against this defendant?
[Victim]: That they had filed for divorce.
[The State]: Well, I’m talking about like a criminal
accusation. Were you aware that she had accused
him of any crimes?
[Victim]: I understand she shot him five times.
¶35 	Following this exchange, Defendant’s counsel moved for
a mistrial. The court ruled that although the State had not
intentionally elicited Victim’s improper response, the reference
to GM having shot Defendant five times unfairly prejudiced his
defense. 	Nevertheless, 	the 	trial 	court 	determined 	that 	the
prejudice could be cured. As a remedial measure, the court
precluded the State from presenting GM’s testimony against
Defendant, thereby reducing the number of prior assaults the
jury would hear about from four to three. The court also struck
from the record all questions and answers between the State and
Victim regarding GM and instructed the jury to disregard the
stricken exchange.
¶36 	At the conclusion of that day of trial, one juror asked for
the name of Defendant’s ex-wife. After the court stated that it
already provided the name in its curative instruction, the juror
responded, 	“We 	can 	remember 	her 	name. 	We 	just 	can’t
remember anything else.” The court responded, “No. You don’t
even need to remember her name. You don’t even need to

State v. Murphy
20170193-CA 	20 	2019 UT App 64
consider 	anything 	about 	[GM].” 	Defendant’s 	trial 	counsel
subsequently renewed his motion for a mistrial asserting that,
despite 	the 	court’s 	curative 	instruction, 	the 	jury 	was 	still
considering Victim’s testimony regarding GM. The trial court
denied the renewed motion, stating that the jury was “trying to
understand 	and 	follow 	[the 	court’s] 	instruction.” 	“Really,”
according to the court, “the question was ‘do we forget her
name?,’” and the question “didn’t go to anything else.”
¶37 	Appellate courts accord great deference to a trial court’s
ruling on a motion for a mistrial given “the advantaged position
of the trial judge to determine the impact of events occurring in
the courtroom on the total proceedings.” State v. Butterfield, 2001
UT 59, ¶ 46, 27 P.3d 1133 (quotation simplified). Accordingly,
absent a showing on the record that “the trial court’s decision is
plainly wrong in that the incident so likely influenced the jury
that the defendant cannot be said to have had a fair trial,” we
will not conclude there was an abuse of discretion. Id. (quotation
simplified). Defendant thus bears the burden of showing “that
the challenged incident substantially influenced the verdict.” State
v. Maama, 2015 UT App 235, ¶ 19, 359 P.3d 1272 (emphasis in
original) (quotation simplified). Furthermore, a trial court need
not declare a mistrial “where an improper statement is not
intentionally 	elicited, 	is 	made 	in 	passing, 	and 	is 	relatively
innocuous in light of all the testimony presented.” State v. Allen,
2005 UT 11, ¶ 40, 108 P.3d 730.
¶38 	To show that the improper statement influenced the jury’s
decision, Defendant points to the exchange between the juror
and the trial court at the conclusion of the second day of trial.13
13. Defendant incorrectly applies the governing legal standard in
his analysis, arguing that the exchange suggests that “there is a
‘reasonable likelihood’ that the improper statement influenced
the jury.” We take this opportunity to emphasize the distinction
between the legal standard applied by a trial court on a motion
for a mistrial and the legal standard applied by appellate courts
(continued…)

State v. Murphy
20170193-CA 	21 	2019 UT App 64
We recognize that the exchange suggests that the improper
testimony may have been on the minds of the jurors during the
second day of trial, but we nonetheless remain unconvinced that,
without the testimony, “there is a substantial likelihood that the
jury would have found [Defendant] not guilty,” Butterfield, 2001
UT 59, ¶ 47, for the reasons that the statement was relatively
innocuous, 	it 	was 	made 	in 	passing, 	and 	the 	evidence 	of
Defendant’s guilt was overwhelming, see Allen, 2005 UT 11, ¶ 40.
¶39 	Although the fact that a defendant was shot might have
stood out more prominently in other trials, in the current case
the 	highly 	graphic 	and 	disturbing 	nature 	of 	the 	evidence
presented to the jury over the course of six days—including the
testimony of Victim, MM, AM, and AK—overshadowed the fact
that GM shot Defendant, rendering the statement relatively
innocuous.14 Victim’s improper testimony was also made in
(…continued)
in reviewing a trial court’s ruling. When ruling on a motion for a
mistrial, a trial court must determine whether the “incident may
have or probably influenced the jury, to the prejudice of the
defendant.” State v. Cardall, 1999 UT 51, ¶ 18, 982 P.2d 79
(emphasis in original) (quotation simplified). But when the trial
court’s ruling is challenged on appeal, the scope of appellate
review is more limited. See State v. Butterfield, 2001 UT 59, ¶ 46,
27 P.3d 1133; Cardall, 1999 UT 51, ¶ 19. On appeal, a defendant
must show “that the verdict was substantially influenced by the
challenged 	testimony.” 	Butterfield, 	2001 	UT 	59, 	¶ 	47 	(some
emphasis omitted) (quotation simplified). Thus, although the
argument that there was a “reasonable likelihood” that Victim’s
improper testimony influenced the jury would have been proper
before the trial court, the argument is insufficient to satisfy the
legal standard on appeal.
14. We further note that the trial court greatly reduced any
potential 	prejudicial 	effect 	of 	the 	improper 	testimony 	by
depriving the jury of the context in which GM shot Defendant.
(continued…)

State v. Murphy
20170193-CA 	22 	2019 UT App 64
passing, and it consisted of a single sentence in a trial transcript
that exceeds 1,000 pages. Accordingly, the trial court did not
abuse its discretion in denying Defendant’s motions for mistrial.
III. Ineffective Assistance of Counsel
¶40 	Defendant argues that he received ineffective assistance
when his trial counsel did not call expert witnesses to rebut the
testimonies of the four expert witnesses called by the State.15 In
particular, Defendant points to his trial counsel’s decision not to
call an expert witness to corroborate Defendant’s account that
the cuts and bruises on his chest were obtained defensively
rather than offensively and to rebut the State’s expert who
testified that the injuries to Defendant’s chest could not have
been sustained in the manner claimed by Defendant. Defendant
also directs our attention to his trial counsel’s failure to find a
substitute choking and strangulation expert after the expert he
had retained passed away. Although his trial counsel was able to
submit the deceased expert’s report into evidence and use the
report to question the State’s expert, Defendant argues that this
was not as persuasive as a substitute expert’s live testimony
would have been.
(…continued)
Without 	knowledge 	of 	the 	circumstances 	surrounding 	how
Defendant sustained his injuries, it is far from clear that the jury
would assume guilt on the part of Defendant instead of feeling
sympathy towards Defendant for being the victim of a shooting.
15. Defendant also makes fleeting mention of his trial counsel’s
failure to call non-expert witnesses to corroborate his account of
what happened on the day of the assault. But he does not
elaborate 	upon 	this 	argument—he 	does 	not 	identify 	any
witnesses that his trial counsel should have called, nor does he
describe how their testimony would have assisted his defense.
Accordingly, 	we 	have 	no 	occasion 	to 	further 	consider 	this
particular argument.

State v. Murphy
20170193-CA 	23 	2019 UT App 64
¶41 	To succeed on a claim of ineffective assistance of counsel,
a criminal defendant must show that (1) “counsel’s performance
was deficient” and (2) “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). “A
defendant’s inability to establish either element defeats a claim
for ineffective assistance of counsel.” State v. Reid, 2018 UT App
146, ¶ 19, 427 P.3d 1261.
¶42 	Without deciding whether his trial counsel’s performance
was deficient, we conclude that Defendant’s claim fails because
he has not established prejudice. To prove prejudice, Defendant
bore the burden of “present[ing] sufficient evidence to support a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Archuleta v. Galetka, 2011 UT 73, ¶ 40, 267 P.3d 232 (quotation
simplified). Defendant has presented no such evidence. Instead,
his prejudice argument is limited to the reiteration of the legal
standard of the prejudice prong, stating that had his trial counsel
called corroborating expert witnesses, “there was a reasonable
likelihood of a different outcome.” This does not satisfy the
prejudice prong of Strickland. See id. ¶ 52 (“Merely repeating the
legal 	prejudice 	standard 	is 	insufficient.”). 	Accordingly,
Defendant’s ineffective assistance of counsel claim fails.
CONCLUSION
¶43 	We 	conclude 	that 	the 	trial 	court 	did 	not 	abuse 	its
discretion in ruling that the 404(b) evidence of other allegations
of sexual assault against Defendant was not barred under rule
403. It likewise did not exceed its discretion when it denied
Defendant’s 	motions 	for 	a 	mistrial 	because 	the 	challenged
testimony was made in passing and was relatively innocuous in
the context of this case, and because the trial court took sufficient
action 	to 	cure 	any 	potential 	unfair 	prejudice 	that 	Victim’s
improper 	testimony 	might 	have 	produced. 	Finally, 	because
Defendant did not establish prejudice, his ineffective assistance
of counsel claim fails.

State v. Murphy
20170193-CA 	24 	2019 UT App 64
¶44 	Affirmed.
HARRIS, Judge (concurring):
¶45 	I concur in full in the majority opinion. My agreement
with Sections II and III is enthusiastic. I have reservations about
the analysis in Section I, but concur nonetheless for two reasons.
First, Defendant did not raise or argue the issues that concern
me, and therefore reversal in this case would not be appropriate.
Second, and more substantively, I agree that the result the
majority reaches in Section I is indeed driven by Utah Supreme
Court precedent that this court is bound to follow, and the lead
opinion ably describes that governing law and applies it to the
facts of this case. I write separately to express my view—for
whatever it might be worth—that the governing law might
warrant re-examination in a future case. Specifically, I have
concerns about the propriety of admitting, pursuant to rule
404(b) of the Utah Rules of Evidence, evidence of a defendant’s
prior bad acts under the “doctrine of chances” to rebut a defense
of fabrication, and I wonder whether our law should either
reconsider the conclusions reached in State v. Verde, 2012 UT 60,
296 P.3d 673, abrogated on other grounds by State v. Thornton, 2017
UT 9, 391 P.3d 1016, or consider adoption of a categorical rule
(akin to rule 413 of the Federal Rules of Evidence) that simply
admits, in a more up-front way, evidence of similar crimes in
sexual-assault cases that is typically being admitted anyway.
I
¶46 	Anglo-American rules of evidence have long contained a
general prohibition against the admission of evidence that a
criminal defendant committed previous bad acts—separate from
the crime with which he is charged—that are similar to the acts
he stands accused of committing. See, e.g., David P. Leonard, The
New Wigmore: A Treatise on Evidence: Evidence of Other Misconduct
and Similar Events § 1.2, at 2 (2009) (hereinafter “Leonard”)

State v. Murphy
20170193-CA 	25 	2019 UT App 64
(stating that “[o]ne of the oldest principles of Anglo-American
law is that a person should not be judged strenuously by
reference to the awesome spectre of his past life,” but instead by
whether the person committed the specific acts with which he is
charged (quotation simplified)). Utah’s evidentiary rules are no
exception: our rules state that “[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).
¶47 	This rule finds its origins not in logic, but in policy. See
People v. Zackowitz, 172 N.E. 466, 468 (N.Y. 1930) (Cardozo, J.)
(stating 	that 	the 	“principle” 	behind 	the 	ban 	on 	propensity
evidence “is one, not of logic, but of policy”). Indeed, such
evidence is excluded
not because it has no appreciable probative value,
but because it has too much. The natural and
inevitable tendency of the tribunal—whether judge
or jury—is to give excessive weight to the vicious
record of crime thus exhibited, and either to allow
it to bear too strongly on the present charge, or to
take the proof of it as justifying a condemnation
irrespective of guilt of the present charge.
Leonard, § 1.2, at 6–7 (quoting 1 John H. Wigmore, Evidence in
Trials at Common Law § 194, at 646 (3d ed. 1940)); see also
Michelson v. United States, 335 U.S. 469, 475–76 (1948) (stating that
propensity 	evidence 	is 	“not 	rejected 	because 	character 	is
irrelevant,” but because such evidence denies defendants “a fair
opportunity to defend against a particular charge”).
¶48 	But this general historical rule is peppered with so many
exceptions that it often gets lost in the shuffle.16 Indeed, our rule
16. One case in point: the lead opinion in this case describes rule
404(b) as a rule of inclusion. See supra ¶ 27 (stating that rule
(continued…)

State v. Murphy
20170193-CA 	26 	2019 UT App 64
of evidence allows admission of evidence of a defendant’s prior
bad acts if such evidence is used “for another purpose” (other
than demonstrating “that on a particular occasion the person
acted in conformity with the character”). See Utah R. Evid.
404(b)(2). 	The 	rule 	even 	lists 	a 	number 	of 	possible 	“other
purposes” for which prior bad acts evidence might be admitted,
including 	“proving 	motive, 	opportunity, 	intent, 	preparation,
plan, 	knowledge, 	identity, 	absence 	of 	mistake, 	or 	lack 	of
accident.” Id. In this vein, our supreme court has stated that “[s]o
long 	as 	the 	evidence 	is 	not 	aimed 	at 	suggesting 	action 	in
conformity 	with 	bad 	character, 	it 	is 	admissible 	under 	rule
404(b).” Verde, 2012 UT 60, ¶ 15.
¶49 	The difficulty, of course, lies in attempting to determine
when 	evidence 	is 	offered 	for 	a 	permissible 	non-propensity
purpose and when a party is merely attempting to dress up
propensity evidence 	as something else in 	order to gain 	its
admission. See id. ¶ 16 (stating that “it won’t always be easy for
the 	court 	to 	differentiate” 	between 	permissible 	and 	non-
permissible prior bad acts evidence). Some jurisdictions, in a nod
(…continued)
404(b) “generally permits evidence of a defendant’s other crimes,
wrongs, or bad acts so long as the evidence has a probative value
other than to show an evil propensity or criminal temperament”
(quotation simplified)). The debate over whether the rule is
exclusionary or inclusionary is an ancient one. Compare John
Henry Wigmore, Treatise on the System of Evidence in Trials at
Common Law § 193, at 231 (1904) (describing the rule as “a
general and absolute rule of exclusion”), with Julius Stone, The
Rule of Exclusion of Similar Fact Evidence: America, 51 Harv. L. Rev.
988, 	990–91 	(1938) 	(arguing 	that 	the 	rule 	is 	inclusionary,
“excluding proof where the relevance was merely to the evil
disposition of the accused”); see also David P. Leonard, The New
Wigmore: A Treatise on Evidence: Evidence of Other Misconduct and
Similar Events § 4.3, at 206–19 (2009) (discussing historical views
of the rule).

State v. Murphy
20170193-CA 	27 	2019 UT App 64
to 	the 	difficulties 	inherent 	in 	trying 	to 	elicit 	such 	fine
distinctions, have determined—through legislation, rulemaking,
or 	common-law 	development—that 	at 	least 	some 	kinds 	of
propensity evidence ought to be categorically admissible in
sexual assault cases. About half of the fifty states have judicially
recognized a common-law “lustful disposition” exception to the
general ban on propensity evidence. See Basyle J. Tchividjian,
Predators and Propensity: The Proper Approach for Determining the
Admissibility of Prior Bad Acts Evidence in Child Sexual Abuse
Prosecutions, 39 Am. J. Crim. L. 327, 338–39 & n.51 (2012) (listing
the jurisdictions that have adopted this common-law exception).
And some jurisdictions, most notably the federal courts through
the enactment of rules 413 and 414 of the Federal Rules of
Evidence, categorically allow the admission of prior bad acts in
sexual assault cases. See Fed. R. Evid. 413, 414. Rule 413 covers
“sexual assault” cases generally, and rule 414 covers “child
molestation” 	cases. 	Each 	rule 	allows 	the 	court 	to 	“admit
evidence that the defendant committed any other” sexual assault
or child molestation, without regard to whether the evidence is
offered for any of the rule 404(b)(2) purposes. See id. R. 413(a),
414(a); see also Michael L. Smith, Prior Sexual Misconduct Evidence
in State Courts: Constitutional and Common Law Challenges, 52 Am.
Crim. L. Rev. 321, 323–24 & nn. 6–21 (2015) (noting that a
handful of states, including Utah, have implemented a version of
one or both of these rules).17
17. These rules of evidence have generally been upheld against
constitutional challenges, with courts noting that the continued
applicability of rule 403 to all evidence admitted pursuant to
these rules is an important factor in their constitutional validity.
See, e.g., United States v. Coutentos, 651 F.3d 809, 819 (8th Cir.
2011) (holding that rule 414 of the Federal Rules of Evidence was
not unconstitutional); United States v. LeMay, 260 F.3d 1018, 1031
(9th Cir. 2001) (same); United States v. Castillo, 140 F.3d 874, 883
(10th Cir. 1998) (same); see also People v. Falsetta, 986 P.2d 182,
187–90 (Cal. 1999) (holding that California’s version of rule 413
(continued…)

State v. Murphy
20170193-CA 	28 	2019 UT App 64
¶50 	In 2008, Utah enacted a version of rule 414 of the Federal
Rules of Evidence, and now categorically allows propensity
evidence in child molestation cases, regardless of whether that
evidence meets the requirements of rule 404(b)(2). See Utah R.
Evid. 	404(c) 	(stating 	that, 	“[i]n 	a 	criminal 	case 	in 	which 	a
defendant is accused of child molestation, the court may admit
evidence that the defendant committed any other acts of child
molestation 	to 	prove 	a 	propensity 	to 	commit 	the 	crime
charged”). However, Utah has not enacted any version of rule
413 of the Federal Rules of Evidence, nor has it ever adopted any
version of the “lustful disposition” exception, meaning that in
cases where the defendant stands accused of sexually assaulting
anyone who is fourteen years of age or older, there is no
categorical rule allowing admission of that defendant’s prior acts
of 	sexual 	assault. 	Prosecutors 	attempting 	to 	introduce 	such
evidence in adult sexual assault cases must demonstrate that the
evidence they proffer meets the requirements of rule 404(b)(2).
II
¶51 	A pair of leading commentators (including a Utah federal
judge) have observed, in their treatise on the Utah Rules of
Evidence, that “[i]f the prior bad acts involve sexual misconduct,
or child abuse, or a combination of both, courts generally find a
theory of admissibility, even if no specific theory of admissibility
makes 	sense.” 	See 	R. 	Collin 	Mangrum 	& 	Dee 	Benson,
Mangrum & Benson on Utah Evidence 227 (2018–19 ed.); see also
Kenneth J. Melilli, The Character Evidence Rule Revisited, 1998
B.Y.U. L. Rev. 1547, 1556 (1998) (hereinafter “Melilli”) (stating
that 	“creative 	prosecutors 	will 	usually 	be 	successful 	in
generating a theory for introducing evidence of the defendant’s
prior, uncharged misbehavior before the jury”). One theory
that—increasingly in recent years—has been harnessed for this
(…continued)
was not unconstitutional, in part because review for undue
prejudice was still required).

State v. Murphy
20170193-CA 	29 	2019 UT App 64
purpose 	is 	a 	“theory 	of 	logical 	relevance” 	known 	as 	the
“doctrine of chances” (the Doctrine). See Verde, 2012 UT 60, ¶ 47.
¶52 	The Doctrine is controversial, see Melilli, at 1564 (referring
to 	the 	Doctrine 	as 	“the 	real 	hinterland 	of 	Rule 	404(b)
metaphysics”), 	and 	a 	full 	discussion 	of 	its 	purposes 	and
applications is beyond the scope of this opinion. As I explain
below, I do not take issue here with the Doctrine’s application in
certain contexts (such as, for instance, to rebut a defense of
mistake or accident), but I am unconvinced—for two reasons—of
the wisdom of our supreme court’s extension of the Doctrine to
rebut fabrication defenses. First, I have doubts about whether the
Doctrine can logically be applied in that context consistently
with the historical propensity bar. Second, I wonder whether the
Doctrine’s application in this context runs afoul of the non-
controversial principle that probability evidence is inadmissible
to show that a witness is (or is not) telling the truth. I will discuss
these two concerns, in turn, after a brief description of the
Doctrine and its origins.
A
¶53 	As described by our supreme court, the Doctrine 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 (quotation
simplified); see also State v. Lopez, 2018 UT 5, ¶ 52, 417 P.3d 116
(stating that doctrine of chances cases “involve rare events
happening with unusual frequency”). At root, the Doctrine is
simply “probability reasoning.” Verde, 2012 UT 60, ¶¶ 50, 53; cf.
Hopt v. People, 120 U.S. 430, 440 (1887) (referring to the “doctrine
of chances” as a tool used to “establish a probability”).
¶54 	The 	Doctrine 	has 	been 	widely 	applied 	to 	rebut 	a
defendant’s claim that a series of extremely unlikely events are
nothing more than coincidences or unfortunate accidents. There
are several famous examples, including one first articulated in
1884 and quoted in Verde:

State v. Murphy
20170193-CA 	30 	2019 UT App 64
Suppose you lose your horse; you find it in the
possession of A.; he asserts that he took the horse
by mistake; but you find that about the same time
he took horses belonging to several others; would
not the fact that he took others about the same time
be 	proper 	evidence 	to 	be 	considered 	in
determining whether the particular taking was or
not by mistake? The chances of mistake decrease in
proportion as the alleged mistakes increase.
2012 UT 60, ¶ 48 (quotation simplified). Similarly, in the case of
the “Brides in the Bath,” Rex v. Smith, 11 Crim. App. 229, 84
L.J.K.B. 2153 (1915) (also referred to in Verde, 2012 UT 60, ¶ 49), a
defendant 	was 	accused 	of 	murder 	when 	three 	successive
spouses 	died 	while 	taking 	a 	bath, 	and 	evidence 	of 	the
circumstances surrounding the deaths of the other two spouses
was admitted at the murder trial of the first spouse, for the
purpose of showing the defendant had caused the first death. In
another more recent example, multiple infants had died in their
sleep 	while 	in 	the 	care 	of 	the 	defendant, 	and 	evidence 	of
previous deaths was admitted to rebut the defendant’s claim
that the death in question was accidental. See United States v.
Woods, 484 F.2d 127, 135 (4th Cir. 1973) (also cited in Verde, 2012
UT 60, ¶ 49). In these cases, the Doctrine did not function as an
independent exception to the prohibition on character evidence;
rather, its logic was used to explain the probative value of prior
bad 	acts 	evidence 	that 	was 	introduced 	pursuant 	to 	other
exceptions (usually to rebut a defense of mistake or accident)
that are listed in rule 404(b)(2).
¶55 	When applied to rebut a defense of mistake or accident,
evidence of previous similar events is relevant not necessarily to
show that the defendant had a propensity to commit similar
crimes, but to show that it was practically impossible—as a
matter 	of 	probability—for 	the 	events 	to 	have 	occurred
accidentally as the defendant claimed. As our supreme court
stated in Verde, “[p]ropensity inferences do not pollute this type

State v. Murphy
20170193-CA 	31 	2019 UT App 64
of probability reasoning,” because “[t]he question for the jury is
not whether the defendant is the type of person who, for
example, sets incendiary fires or murders his relatives.” 2012 UT
60, ¶ 50. Instead, “[t]he question is whether it is objectively likely
that so many fires or deaths could be attributable to natural
ca[u]ses.” Id. This evidence “tends to prove a relevant fact
without relying on inferences from the defendant’s character,”
and is therefore not impermissible propensity evidence. Id. ¶ 51.
B
¶56 	I have no quarrel with application of the Doctrine to rebut
a defense of accident or mistake, because I agree that such
application does not necessarily require the forbidden inference
that a defendant has acted in conformity with his character or
propensity. Id. ¶¶ 50–51; see also Andrea J. Garland, Beyond
Probability: The Utah Supreme Court’s “Doctrine of Chances” in State
v. Verde Encourages Admission of Irrelevant Evidence, 3 Utah J.
Crim. L. 6, 27 (2018) (criticizing our supreme court’s application
of the Doctrine in Verde, but acknowledging certain “proper
uses” for the Doctrine, including application “to rebut claims of
accident”). I cannot see how the same holds true, however, when
the Doctrine is used to admit evidence to rebut a defense of
fabrication.18
18. This application of the Doctrine, it bears noting, is not widely
used. In Verde, our supreme court relied largely on one law
review article and one concurring opinion from California in
extending the Doctrine’s application to fabrication defenses.
State v. Verde, 2012 UT 60, ¶¶ 47–48, 296 P.3d 673. The court did
state that “[m]any other courts have adopted the doctrine in
these and similar contexts,” see id. ¶ 53 & n.27, but none of the
cases the court cited for that proposition actually applied the
Doctrine to a fabrication defense; indeed, all but one of them
applied the Doctrine in its traditional context: to rebut a defense
of accident or mistake, see Westfield Ins. Co. v. Harris, 134 F.3d
(continued…)

State v. Murphy
20170193-CA 	32 	2019 UT App 64
¶57 	The trigger for any application of the Doctrine is the
occurrence of a “rare misfortune” that “befall[s] one individual
over and over.” See Verde, 2012 UT 60, ¶ 47. In applying the
Doctrine to rebut a defense of accident, it is often easy to discern
what the “rare misfortune” is—for instance, the death of a bride
in a bathtub, or the mistaken taking of a horse. In applying the
Doctrine to rebut a defense of fabrication, however, it is not as
easy to discern what the “rare misfortune” is that triggers
application of the Doctrine. As near as I can tell, the “rare
misfortune” in this context must be either (a) that the defendant
has been falsely accused of nonconsensual sexual assault on
multiple occasions, see id. ¶ 45 (describing the State’s argument
(…continued)
608, 615 (4th Cir. 1998) (stating that “the more often an accidental
or infrequent incident occurs, the more likely it is that its
subsequent reoccurrence is not accidental or fortuitous”); United
States v. York, 933 F.2d 1343, 1350 (7th Cir. 1991) (applying the
Doctrine to rebut a defense of accident, stating that “the odds of
the same individual reaping the benefits, within the space of
three years, of two grisly murders of people he had reason to be
hostile toward seem incredibly low, certainly low enough to
support an inference that the windfalls were the product of
design rather than the vagaries of chance”), overruled on other
grounds by Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999); Wynn
v. State, 718 A.2d 588, 607 (Md. 1998) (stating that “[i]t is the
objective implausibility of the occurrence, sans nefarious activity,
which rebuts the claim of an innocent occurrence”); State v. Johns,
725 P.2d 312, 321–27 (Or. 1986) (applying the Doctrine to rebut a
defense of mistake or accident); see also People v. Everett, 250 P.3d
649, 656–58 (Colo. App. 2010) (applying the Doctrine, based
partly on statutory guidance, to rebut a defense of lack of
consent). To my knowledge, very few other jurisdictions—in a
reported majority appellate opinion—have applied the Doctrine
to rebut a defense of fabrication. E.g., De La Paz v. State, 279
S.W.3d 336, 347 (Tex. Crim. App. 2009).

State v. Murphy
20170193-CA 	33 	2019 UT App 64
as 	that 	it 	is 	“highly 	unlikely 	that 	three 	victims 	would
independently fabricate similar accounts of unwanted sexual
contact”), or (b) that the defendant has merely been accused—
whether falsely or accurately—of nonconsensual sexual assault
on previous occasions, id. ¶ 53 (stating that the Doctrine might
be applied “based on the low probability that multiple victims
would independently accuse the defendant of similar assaults”).
Regardless of whether the triggering event is (a) or (b), the
Doctrine doesn’t seem to work in this context.
¶58 	If 	the 	triggering 	“rare 	misfortune” 	is 	previous 	false
accusations of sexual assault, one would expect the State—in
order 	to 	properly 	invoke 	the 	Doctrine—to 	actually 	put 	on
evidence of previous false accusations of sexual assault. But I
have yet to find a doctrine of chances case in which any evidence
was put on that, in previous cases, the defendant was falsely
accused of sexual assault. (No prosecutor in her right mind
would want to do such a thing, presumably because jurors might
think that, if it happened before, it might have happened again.)
Instead, in the typical case, the State seeks to introduce evidence
that the defendant was credibly accused of sexual assault in
previous cases. See, e.g., id. ¶¶ 6–9; State v. Balfour, 2018 UT App
79, ¶¶ 31–33, 418 P.3d 79, cert. denied, 429 P.3d 465 (Utah 2018).
As a matter of logic, then, if the State seeks to introduce evidence
of previous true accusations of sexual assault pursuant to the
Doctrine, 	the 	triggering 	event 	of 	“rare 	misfortune” 	cannot
possibly be the fact that the defendant was falsely accused of
sexual assault in previous cases.
¶59 	But using previous accusations—regardless of their truth
or falsity—as the “rare” triggering event also suffers from logical
problems. If one assumes that the accusations are true, and that
the defendant actually committed the previous sexual assaults, it
becomes extremely difficult to distinguish such evidence from
straight-up propensity evidence. See Melilli, at 1568 (pointing out
that “the explanation for the [Doctrine] in the multiple-accusers
context 	is 	simply 	a 	convoluted 	explanation 	of 	the 	general
propensity 	inference,” 	because 	“[e]ach 	separate 	accusation

State v. Murphy
20170193-CA 	34 	2019 UT App 64
would have no bearing upon the accuracy of another allegation
but for the conclusion that the multiple accusations demonstrate
a cross-situational pattern of behavior, which is but a variation
on the taboo inference of a general propensity or character
trait”). And if one stops short of assuming that the accusations
are true, and simply uses accusations—regardless of their truth
or falsity—as the “rare” triggering event, that brings its own set
of logical problems. As one commentator astutely points out,
there is “something awry with rules of evidence that permit the
trier of fact in a rape case to infer guilt based merely on prior
accusations of rape, but, at least in principle, ordinarily will not
allow the trier of fact to infer guilt based on the fact that
the accused is actually guilty of rape on prior occasions.” Id. at
1566.
C
¶60 	The other problem I see with application of the Doctrine
to rebut a defense of fabrication is that such application allows
the introduction of probability evidence for the avowed purpose
of demonstrating that the complaining witness is more likely to
be telling the truth. Our law allows such evidence in no other
context, and it does not appear that our supreme court has ever
examined the extent to which Verde is inconsistent with its other
jurisprudence around this issue.
¶61 	Decades ago, in State v. Rammel, 721 P.2d 498 (Utah 1986),
our supreme court drew a hard line regarding the admissibility
of probability or statistical evidence to speak to a witness’s
credibility. 	In 	that 	case, 	the 	credibility 	of 	the 	prosecution’s
star witness was at issue; that witness was telling a different
story 	at 	trial 	than 	he 	had 	told 	in 	his 	first 	interview 	with
police. See generally id. The prosecution attempted to shore up
the witness’s credibility by calling a police detective to testify
that, in his experience, it was not unusual for individuals to lie
the first time they met with police. Id. at 500. The trial court
allowed the testimony, but the supreme court reversed, for three
reasons.

State v. Murphy
20170193-CA 	35 	2019 UT App 64
¶62 	First, 	the 	court 	noted 	that, 	“[a]lthough 	a 	witness’s
credibility may always be impeached, the impeaching evidence
must 	go 	to 	that 	individual’s 	character 	for 	veracity,” 	and
probability evidence does not go to a particular individual’s
character for truthfulness. Id. Second, the court determined that
the 	police 	officer 	did 	not 	have 	“foundation” 	to 	testify
anecdotally about the probability of people telling the truth. Id.
at 501. Third, and most relevant here, the court held as follows:
Even where statistically valid probability evidence
has been presented—and [the officer’s] testimony
hardly 	qualifies as 	such—courts have 	routinely
excluded it when the evidence invites the jury to
focus 	upon 	a 	seemingly 	scientific, 	numerical
conclusion rather than to analyze the evidence
before it and decide where truth lies. Probabilities
cannot conclusively establish that a single event did or
did not occur and are particularly inappropriate when
used to establish facts not susceptible to quantitative
analysis, such as whether a particular individual is
telling the truth at any given time.
Id. (emphasis added) (quotation simplified); see also State v.
Burnett, 2018 UT App 80, ¶ 36 n.9, 427 P.3d 288 (citing Rammel,
and determining that statistical evidence of probabilities that a
particular witness was telling the truth was inadmissible).
¶63 	As noted above, the Doctrine is simply a “probability
theory” that speaks to the likelihood of a particular “rare” event
occurring repeatedly. See Verde, 2012 UT 60, ¶ 47. When the
Doctrine is used to rebut a defense of fabrication, the prior bad
acts evidence is admitted precisely because that evidence makes
it 	more 	likely, 	from 	a 	probability 	standpoint, 	that 	the
complaining witness is telling the truth. I cannot see a principled
way to reconcile Rammel’s rule forbidding the introduction of
probability-based 	evidence 	in 	this 	context 	with 	Verde’s
application of the Doctrine to allow it.

State v. Murphy
20170193-CA 	36 	2019 UT App 64
III
¶64 	In 	the 	case 	before 	us, 	the 	trial 	court 	allowed 	three
witnesses to testify that Defendant sexually assaulted them on
previous 	occasions 	and, 	in 	addition, 	the 	court 	allowed 	a
statistician to testify that there is a 0.0004 percent chance of a
person being arrested even once for rape or attempted rape in
Utah, and that the chances of such a thing happening to the same
person four times was 1 in 16 trillion. The trial court admitted
this evidence pursuant to the Doctrine, because the State offered
it, in part, to rebut Defendant’s claim that Victim had fabricated
her account of the events in question. In this opinion, we affirm
that decision, and I concur in that result because Defendant does
not ask us to re-examine the applicability of the Doctrine in this
context and, in any event, we are bound to follow the analysis
set forth in Verde.19
¶65 	But I have reservations about employing the Doctrine, in
a case like this, to admit evidence of Defendant’s prior bad acts.
For the reasons set forth, I wonder whether application of the
Doctrine 	in 	this 	context 	might 	warrant 	re-examination,
19. I also concur with the majority’s conclusion that the trial
court did not abuse its discretion in balancing the contested
evidence’s probative value with its potential for unfair prejudice.
In such situations, a trial court must conduct a separate rule 403
analysis, and 	may not simply conclude—based solely on a
determination that there is a proper non-character purpose for
the evidence—that the evidence is admissible. See supra ¶ 28
(describing the “three-step analysis” that a court must take, with
the third step being rule 403 balancing). In this case, although the
trial court discussed some of the doctrine-of-chances factors in
connection with its rule 403 analysis—something it is allowed to
do, see State v. Lowther, 2017 UT 34, ¶¶ 29, 41, 398 P.3d 1032—it
did not limit itself to those factors, and conducted a separate
analysis 	of 	whether 	the 	evidence’s 	probative 	value 	was
substantially outweighed by the risk of unfair prejudice.

State v. Murphy
20170193-CA 	37 	2019 UT App 64
specifically regarding whether such application is at odds with
the 	historical 	ban 	on 	propensity 	evidence 	as 	well 	as 	the
longstanding rule against admission of probability evidence to
speak to a witness’s credibility. Decisions about whether to re-
examine Verde, or to enact a version of rule 413 of the Federal
Rules of Evidence—two very divergent pathways—will be made
above my pay grade. But I have concerns about whether we can
or 	should 	continue 	down 	our 	current 	path, 	in 	which 	we
routinely “allow[] character evidence to reach the jury while
maintaining 	the 	pious 	fiction 	that 	we 	follow 	the 	character
evidence rule.” See Melilli, at 1569.