State v. Rackham

2016 UT App 167

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ARTHUR JACOB RACKHAM,
Appellant.

Opinion
No. 20140969-CA
Filed August 4, 2016

Second District Court, Ogden Department
The Honorable Noel S. Hyde
No. 111902819

Linda M. Jones and Erin Bergeson Hull, Attorneys
for Appellant
Michelle A. Jeffs and Jeffrey G. Thomson, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
KATE A. TOOMEY and SENIOR JUDGE PAMELA T. GREENWOOD
concurred.1

ROTH, Judge:

¶1 Arthur Jacob Rackham appeals his conviction for sexual
battery, a class A misdemeanor. Because we conclude that the
trial court exceeded its discretion by admitting certain evidence
under rule 404(b) of the Utah Rules of Evidence, we vacate the
conviction and remand for a new trial.

1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
State v. Rackham

BACKGROUND

¶2 On the afternoon of July 23, 2010, sixteen-year-old K.M.
was at home in her garage vacuuming her mother’s car. While
she was ‚bent over‛ and leaning into an open driver-side door,
twenty-four-year-old Rackham, a relative, entered the garage.
Rackham came up behind K.M., put his hands on her stomach,
and made a ‚we-e-e-e sound in [her] ear.‛ K.M. pushed
Rackham away. Rackham again approached K.M. and this time
put his hand under her shirt and brushed her breast over her
bra. K.M. again pushed Rackham away, told him never to touch
her again, and went inside to report the incident to her parents.

¶3 K.M. had previous encounters with Rackham during
which she had told him not to touch her. On one occasion, when
she was home alone watching television, Rackham arrived at her
house. He began tickling her and lifting up her shirt. She ‚told
him to stop it and he didn’t, he just laughed it off.‛ On another
occasion, she and a friend were ‚playing around‛ in the yard
with Rackham and his brother while visiting her grandparents’
house. Rackham ‚kept pushing *K.M. and her friend] over and
tickling [them] and grabbing [their] butts and thinking that it
was funny.‛ K.M. ‚told him to knock it off[,] but he just
laughed.‛

¶4 Soon after the incident in the garage, K.M.’s father
competed in a bike race; K.M., her mother, and her sister,
twelve-year-old T.M., were helping with the event’s registration
table. At some point during the race, Rackham approached T.M.
at the table, whispered her name, started to rub her stomach
over her shirt, and moved his hand toward, but did not touch,
her pant line. T.M. immediately told her mother what had
occurred.

¶5 Following the incident with T.M., K.M. and T.M.’s father
confronted Rackham. Rackham denied intentionally touching
K.M. but admitted that he might have accidentally ‚grazed‛ her.

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State v. Rackham

He admitted to touching T.M. but claimed that he was just trying
to get her ‚to warm up to him.‛

¶6 K.M.’s father reported the incident with K.M. to the
police. At that point, he also informed other relatives about what
had happened in order to ‚protect all the nieces . . . [and]
cousins.‛ After speaking with two of Rackham’s uncles, he
learned that their daughters, M.F. and K.R., had also been
inappropriately touched by Rackham and that Rackham was
being prosecuted in connection with his actions toward K.R.

¶7 M.F. alleged that in 2001, when she was eight years old,
Rackham gave her and another relative, A.R.,2 back rubs while
they were visiting Rackham’s family on vacation. During the
back rub, Rackham touched M.F.’s chest and genitals under her
clothing. She reported the incident to her parents ‚a few months
later.‛ She did not become aware of incidents involving other
relatives until approximately 2012.

¶8 K.R. alleged that between 1997 and 2005, when she was
between the ages of seven and fifteen, Rackham frequently
touched her breasts and genitals both above and below her
clothing. This touching was often accompanied by tickling, back
rubs, and whispering in her ear. On one occasion, when
Rackham was sleeping at her house, K.R. ‚woke up to him with
*her+ pants off,‛ at which point she went into the bathroom,
locked herself in, and slept there. She did not discuss these
incidents with anyone until 2007 and was unaware at that time
of incidents involving other relatives. Rackham was ultimately
charged in connection with this conduct and pleaded no contest
to sexual battery.

2. Testimony at trial suggested that Rackham also touched A.R.
inappropriately at this time, but no evidence was presented
relating the details of that alleged abuse.

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State v. Rackham

¶9 In December 2011, the State charged Rackham with one
count of sexual battery based on the July 2010 incident with K.M.
This charge required proof that Rackham intentionally touched
K.M.’s breast under circumstances that he knew or should have
known would ‚likely cause affront or alarm‛ to her. See Utah
Code Ann. § 76-9-702.1(1) (LexisNexis Supp. 2015).3

¶10 The State filed a motion in limine seeking to admit
evidence of Rackham’s prior incidents of misconduct for the
noncharacter purposes of proving Rackham’s knowledge that
touching K.M. would cause affront or alarm and rebutting
Rackham’s defense of fabrication under the doctrine of chances.
Specifically, the State sought to introduce evidence of K.M.’s two
prior encounters with Rackham, T.M.’s encounter with Rackham
at the bicycle race, M.F. and A.R.’s encounter with Rackham
while on vacation, and K.R.’s history of interactions with
Rackham.

¶11 The trial court granted the State’s motion in limine,
admitting the evidence solely for the purpose of proving
knowledge. The court rejected the State’s argument regarding
the doctrine of chances, however, concluding that the evidence
did not meet the foundational requirement of independence
outlined in State v. Verde, 2012 UT 60, 296 P.3d 673.

¶12 Following a two-day trial, the jury found Rackham guilty
of sexual battery. Rackham now appeals.

3. Rackham was charged with sexual battery in violation of Utah
Code section 76-9-702(3) as it existed in 2011. In 2012 the Utah
Legislature amended this provision and recodified it as section
76-9-702.1. See 2012 Utah Laws ch. 303 § 4. Because this
amendment did not materially alter the elements of sexual
battery, we cite the most recent version of the Utah Code
Annotated.

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State v. Rackham

ISSUE AND STANDARD OF REVIEW

¶13 Rackham challenges the trial court’s admission of the rule
404(b) evidence with respect to T.M., M.F., A.F., and K.R.4 ‚A
district court’s decision to admit evidence under rule 404(b) [of
the Utah Rules of Evidence] is entitled to some deference. But
such a decision can withstand our review only if the evidence
falls within the bounds marked by the legal standards set forth
in the rules of evidence.‛ Verde, 2012 UT 60, ¶ 19.5

ANALYSIS

¶14 The determination of whether evidence of prior bad acts
is admissible involves a three-part inquiry: first, we consider
whether the evidence has been ‚offered for a genuine,
noncharacter purpose‛; second, we consider whether the
evidence is relevant to the noncharacter purpose; and third, we

4. Rackham does not dispute the admissibility of evidence
relating to his prior encounters with K.M.

5. Rackham also argues that he received ineffective assistance of
counsel due to a number of errors during trial. Specifically, he
asserts that his counsel performed deficiently by failing to object
to one witness’s testimony regarding his emotional reactions, not
asking the court to strike inadmissible hearsay evidence, and
failing to object to the prosecution’s cross-examination of
Rackham regarding his prior sexual battery conviction and the
prosecution’s use of that conviction during closing argument to
encourage the jury to decide the case on an improper basis.
While we agree with Rackham that at least some of counsel’s
actions raise cause for concern, we ultimately do not address
Rackham’s ineffective assistance arguments because we are
vacating his conviction and remanding for a new trial due to the
inadmissibility of the rule 404(b) evidence.

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State v. Rackham

consider whether ‚the probative value of the evidence . . . [is]
substantially outweighed by the danger of unfair prejudice.‛
State v. Reece, 2015 UT 45, ¶ 57, 349 P.3d 712 (citation and
internal quotation marks omitted).

¶15 Rackham first asserts that the rule 404(b) evidence was
not offered for a proper noncharacter purpose, because he did
not controvert the knowledge element of the crime charged. The
Utah Supreme Court considered a similar issue in State v. Verde,
2012 UT 60, 296 P.3d 673. In Verde, the supreme court held that
‚admissibility of prior misconduct evidence cannot be sustained
under rule 404(b) on the mere basis of a defendant’s not-guilty
plea.‛ Id. ¶ 23. Although ‚*a+ not-guilty plea technically puts
every element of a crime at issue,‛ id. ¶ 22, where an element ‚is
uncontested and readily inferable from other evidence, 404(b)
evidence is largely tangential and duplicative,‛ id. ¶ 26.
Accordingly, the Verde court held that the State could not use
rule 404(b) evidence for the noncharacter purpose of proving
intent where, among other things, the defendant did not contest
intent at trial, the defendant offered to stipulate to intent at the
outset, and intent could be readily inferred from evidence that
the defendant had groped the victim’s genitalia. Id. ¶¶ 25–27.

¶16 Although Rackham’s defense, like that of the defendant in
Verde, relied on his assertion that the alleged conduct did not
occur, this case is distinguishable from Verde. Unlike the Verde
defendant, Rackham never offered to stipulate to the knowledge
element and did not explicitly concede the knowledge element at
trial.6 And unlike the trial court in Verde, the trial court here did

6. Rackham stated that as a result of his participation in sex-
offender therapy, which he began in 2013, he ‚learned that . . .
tickling and poking . . . nieces that are in the age of maturing is
definitely not appropriate,‛ but he indicated that ‚*a+t the time‛
of the charged events, ‚it didn’t even cross *his+ mind.‛

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State v. Rackham

not mechanically rely on the not-guilty rule to determine that the
rule 404(b) evidence was offered for a noncharacter purpose;
rather, it determined that, under the circumstances, there was
still a need for the State to meet its burden as to the knowledge
requirement. Further, unlike in Verde, the touching itself, if
proved, could not necessarily be depended upon to imply sexual
battery’s somewhat arcane knowledge element—that the actor
knew or should have known the touch would ‚likely cause
affront or alarm to the person touched.‛ See Utah Code Ann.
§ 76-9-702.1(1) (LexisNexis Supp. 2015). In the absence of a
stipulation to or concession of the knowledge element, we agree
with the trial court that Rackham’s claim that the conduct did
not occur did not eliminate the State’s burden to prove
knowledge in this case. Thus, the proposed rule 404(b) evidence
served a proper, noncharacter purpose.

¶17 We next consider whether the proffered evidence was
relevant to the issue of knowledge. ‚Evidence is relevant if (a) it
has any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of
consequence in determining the action.‛ Utah R. Evid. 401. The
State asserts that the rule 404(b) evidence was relevant to
establish the knowledge element because it demonstrated that
Rackham had previous experience with his young cousins and
nieces becoming alarmed or affronted by his unwanted
touching. Because the relevance inquiry establishes ‚a very low
bar that deems even evidence with the slightest probative value
relevant,‛ State v. Richardson, 2013 UT 50, ¶ 24, 308 P.3d 526
(citation and internal quotation marks omitted), we conclude
that the evidence relating to M.F., A.F., and K.R. was relevant to
the issue of knowledge. However, the evidence relating to T.M.
was not relevant because the events involving T.M. occurred
after the events involving K.M. Thus, evidence of T.M.’s response
to Rackham touching her stomach could not have made it any
more probable that Rackham knew K.M. would be alarmed by
his advances.

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State v. Rackham

¶18 Finally, we consider whether the probative value of the
remaining rule 404(b) evidence was substantially outweighed by
the danger of unfair prejudice under rule 403. In making this
determination, a ‚court may consider a number of factors,‛
including those articulated in State v. Shickles, 760 P.2d 291 (Utah
1988), abrogated on other grounds by State v. Doporto, 935 P.2d 484
(Utah 1997), which include:

the strength of the evidence as to the commission
of the other crime, the similarities between the
crimes, the interval of time that has elapsed
between the crimes, the need for the evidence, the
efficacy of alternative proof, and the degree to
which the evidence probably will rouse the jury to
overmastering hostility.

State v. Lucero, 2014 UT 15, ¶ 31, 328 P.3d 841 (quoting Shickles,
760 P.2d at 295–96). Nevertheless, we are ‚bound by the text of
rule 403, not the limited list of considerations outlined in
Shickles.‛ Id. ¶ 32; see also State v. Cuttler, 2015 UT 95, ¶ 18, 367
P.3d 981. Thus, in evaluating and assessing the Shickles factors,
we must keep in mind that our ultimate goal is to weigh the
‚probative value of the evidence‛ against the ‚‘danger of unfair
prejudice.’‛ See id. (emphasis omitted) (quoting Utah R. Evid.
403). We conclude that while evidence relating to Rackham’s
encounters with M.F., A.F., and K.R. has some probative value
with respect to the knowledge element, any probative value is
substantially outweighed by the danger of unfair prejudice.

¶19 First, the evidence does have some probative value
regarding the issue of knowledge. The State was required to
establish Rackham’s knowledge that his behavior would ‚likely
cause affront or alarm to the person touched.‛ See Utah Code
Ann. § 76-9-702.1(1). M.F.’s and K.R.’s testimony was strong
evidence of knowledge because it indicated that Rackham had
caused affront or alarm to young female relatives whom he had

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State v. Rackham

touched in the past, which supported an inference that he was or
should have been aware that similar touching of K.M. (or even
any young female) would likely be unwelcome in the same way.
The evidence relating to A.F., however, was weak because A.F.
did not testify, there was no evidence of her reaction to
Rackham’s actions, and the evidence presented was limited to
innuendo and inference.7 Thus, the strength of the evidence,
except with regard to A.F., suggests that the evidence had
probative value and weighs in favor of admission.

¶20 The lack of similarity between the acts, however,
undermines the probative value of the rule 404(b) evidence and
weighs against admission. Unlike K.M., who alleged that
Rackham touched her breast over her bra, M.F. and K.R. testified
that Rackham touched their breasts and genitals under their
clothing, and K.R. testified that this happened on many
occasions over a number of years. Evidence that Rackham knew
that such egregious touching had been alarming to M.F. and K.R.
does little to indicate how he would have expected K.M. to react
to the touching that allegedly occurred here. The age difference
and the difference in gravity between the touching that occurred
in this case and the touching that occurred with respect to M.F.
and K.R. also emphasize the potential for unfair prejudice, as the
more intimate touching of much younger girls could have
improperly influenced the jury to convict Rackham of the less
serious charge here, a factor that weighs strongly against
admission.

¶21 Finally, there was not a strong need for the evidence
relating to M.F., A.F., and K.R., because K.M.’s own testimony
provided ample evidence in support of the knowledge element.
K.M. testified that, just prior to Rackham touching her breast and

7. Indeed, it is likely this testimony should have been deemed
inadmissible on other grounds, such as hearsay.

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State v. Rackham

also on two previous occasions, she had made it clear to him that
even his arguably nonsexual touching was unwelcome. The jury
could easily have concluded from this evidence that Rackham
knew he would cause affront or alarm to K.M. by touching her
breast, and the evidence regarding M.F., A.F., and K.R. was not
needed to bolster that conclusion. Thus, we conclude that the
probative value of the rule 404(b) evidence relating to M.F., A.F.,
and K.R. for the purpose of proving knowledge was
substantially outweighed by the danger of unfair prejudice.

¶22 The State contends that the rule 404(b) evidence should
alternatively have been admitted under the doctrine of chances
to rebut Rackham’s defense of fabrication. ‚Under the doctrine
of chances, evidence offered to prove actus reus must not be
admitted absent satisfaction of four foundational requirements‛:
materiality, similarity, independence, and frequency. State v.
Verde, 2012 UT 60, ¶¶ 57–61, 296 P.3d 673. The trial court
determined that the independence requirement—that ‚each
accusation must be independent of the others‛ without ‚the
existence of collusion among various accusers,‛ id. ¶ 60—was
not met, because all the allegations came from ‚the same
extended family members‛ and had ‚been discussed among
those family members at various times.‛ The trial court
recognized that the initial allegations were made independently,
in that the victims were unaware of other allegations at the time
they reported. Nevertheless, the trial court concluded that
because the family members had discussed the allegations
among themselves ‚at various times,‛ the testimony to be
presented at trial was not sufficiently independent ‚to justify the
application of the Doctrine of Chances.‛

¶23 The State asserts that the independence requirement is
met here because the family members did not discuss the
allegations amongst themselves until 2010, after the alleged
conduct occurred. But the trial court clearly understood that the
allegations had been reported independently; it was the potential

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State v. Rackham

impact of the post-allegation discussions on the rule 404(b)
witnesses’ ultimate testimony with which the trial court was
concerned. In light of this concern, we do not consider it to have
been an abuse of the court’s discretion to exclude the rule 404(b)
evidence for purposes of demonstrating fabrication under the
doctrine of chances. Thus, we cannot affirm the admission of the
rule 404(b) evidence on this alternative ground.

¶24 ‚If, in the absence of the evidentiary errors, there is a
reasonable likelihood of a more favorable outcome for [a]
defendant, we must reverse the conviction.‛ State v. Harmon, 956
P.2d 262, 271 (Utah 1998) (citation and internal quotation marks
omitted). ‚This case rests on a credibility determination as to
whose version of events‛—Rackham’s or K.M.’s—‚is accurate.‛
See State v. Leber, 2010 UT App 387, ¶ 12, 246 P.3d 163. The State
relied heavily on the evidence regarding Rackham’s prior
interactions with T.M., M.F., A.F., and K.R. to corroborate K.M.’s
story, and the presentation of that evidence took up a great deal
of trial time when compared to the presentation of facts
underlying the charge itself. Thus, the possibility that Rackham’s
conviction reflected the jury’s assessment of his character, rather
than the evidence of the crime he was charged with, is not
insubstantial. Accordingly, ‚the likelihood of a different
outcome‛ in the absence of the rule 404(b) evidence at issue here
is ‚sufficiently high to undermine confidence in the verdict.‛ See
State v. Bujan, 2006 UT App 322, ¶¶ 31–32, 142 P.3d 581 (citation
and internal quotation marks omitted), aff’d, 2008 UT 47, 190
P.3d 1255. For these reasons, we vacate Rackham’s conviction
and remand for a new trial.

CONCLUSION

¶25 Although the rule 404(b) evidence in this case was offered
for a proper noncharacter purpose, evidence relating to T.M. was
not relevant, and the probative value of evidence relating to
M.F., A.F., and K.R. was substantially outweighed by the danger

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State v. Rackham

of unfair prejudice. Thus, the evidence was not admissible to
prove knowledge. However, the trial court did not exceed its
discretion in concluding that the evidence was not sufficiently
independent to be admissible for the purpose of rebutting a
fabrication defense under the doctrine of chances. Because the
erroneous admission of the challenged rule 404(b) evidence
undermines our confidence in the verdict, we vacate Rackham’s
conviction and remand for a new trial.

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