State v. Miranda

2017 UT App 203

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ADOLFO MIRANDA,
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 RYAN M. HARRIS authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN and KATE 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
State v. Miranda

that the 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

20160457-CA 2 2017 UT App 203
State v. Miranda

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 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

20160457-CA 3 2017 UT App 203
State v. Miranda

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 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

20160457-CA 4 2017 UT App 203
State v. Miranda

coached Victim to say that Defendant had sexually abused her so
Mother could gain an advantage in the pending divorce case.

¶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

20160457-CA 5 2017 UT App 203
State v. Miranda

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 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.

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.”

20160457-CA 6 2017 UT App 203
State v. Miranda

¶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] 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.”

20160457-CA 7 2017 UT App 203
State v. Miranda

¶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
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

20160457-CA 8 2017 UT App 203
State v. Miranda

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 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, even if we determine that evidence was admitted

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,
(continued…)

20160457-CA 9 2017 UT App 203
State v. Miranda

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

(…continued)
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 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).

20160457-CA 10 2017 UT App 203
State v. Miranda

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 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.

20160457-CA 11 2017 UT App 203
State v. Miranda

¶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.

¶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

20160457-CA 12 2017 UT App 203
State v. Miranda

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.

¶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. Houskeeper, 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

20160457-CA 13 2017 UT App 203
State v. Miranda

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 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

20160457-CA 14 2017 UT App 203
State v. Miranda

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
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

20160457-CA 15 2017 UT App 203
State v. Miranda

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 . . . 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

20160457-CA 16 2017 UT App 203
State v. Miranda

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
Houskeeper, 2002 UT 118, ¶ 28 (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.

20160457-CA 17 2017 UT App 203
State v. Miranda

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 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.

20160457-CA 18 2017 UT App 203
State v. Miranda

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 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.

20160457-CA 19 2017 UT App 203
State v. Miranda

¶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 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

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.”

20160457-CA 20 2017 UT App 203
State v. Miranda

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 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

20160457-CA 21 2017 UT App 203
State v. Miranda

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
Houskeeper, 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 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

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”).

20160457-CA 22 2017 UT App 203
State v. Miranda

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.

20160457-CA 23 2017 UT App 203