State v. MacDonald

2017 UT App 124

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellant,
v.
ROBBIE MICHAEL MACDONALD,
Appellee.

Opinion
No. 20150123-CA
Filed July 28, 2017

Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 131400351

Sean D. Reyes, Ryan D. Tenney, and Jeffrey S. Gray,
Attorneys for Appellant
Margaret P. Lindsay and Matthew R. Morrise,
Attorneys for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.

VOROS, Judge:

¶1 Robbie Michael MacDonald was charged with child
abuse, a second degree felony, and obstructing justice, a third
degree felony. This court granted the State’s petition for
interlocutory appeal from two pretrial suppression rulings. We
affirm in part and reverse in part.

BACKGROUND

¶2 In reviewing a district court’s ruling on a suppression
motion, we view the facts in the light most favorable to the
district court’s findings and recite them accordingly. See State v.
State v. MacDonald

Mitchell, 2013 UT App 289, ¶ 2, 318 P.3d 238. However, because
this case comes to us on appeal from an interlocutory order,
MacDonald remains presumed innocent of the charged offense.

The Injury

¶3 MacDonald lived with his girlfriend (Mother), Mother’s
ten-month-old baby (Child), and another child. During the
approximately six-week period that the couple lived together,
MacDonald “yelled constantly and excessively.” MacDonald
called Child a “whiner” and directed racial slurs at him.
MacDonald did not like Child clinging to Mother, encouraged
her to leave Child alone when Child cried, pulled Child away
from her, and encouraged Mother to give Child to Child’s father
for parent time. Mother became suspicious that MacDonald was
jealous of Child.

¶4 While living with MacDonald, Mother noticed three
interactions that caused her concern. First, in early December, on
more than one occasion MacDonald picked Child up by the
arms, carried him across the room, and dropped him on a bean
bag chair. Child cried after MacDonald did this. Second, in early
January, Child became sick. Mother asked MacDonald to give
Child medicine. After he administered the medicine, she
observed bruises on both of Child’s cheeks. When Mother asked
MacDonald about the bruising, he told her that Child fell on a
toy. Third, on January 13, 2013, MacDonald “flipped off” Child
with both hands.

¶5 On January 18, 2013, MacDonald stayed home to watch
Child while Mother went to work. Later that afternoon,
MacDonald called Mother to tell her that Child had stopped
breathing and he had called an ambulance. At the hospital,
doctors diagnosed Child with a head contusion, pulmonary
edema, a subdural hematoma, massive retinal hemorrhaging,

20150123-CA 2 2017 UT App 124
State v. MacDonald

and Abusive Head Trauma resulting in irreversible brain
damage, blindness, and seizures.1

The First Interview

¶6 After paramedics transported Child to the hospital, police
officers asked MacDonald to come to the police station to explain
the events preceding Child’s injuries. The officers video-
recorded the interview. At the outset of the interview, an officer
read MacDonald his Miranda rights, but stated that he was “not
sure if you . . . particularly need your rights,” because he was
“just . . . asking what’s going on” with Child. The officer asked
MacDonald if he understood his rights. MacDonald responded
affirmatively by nodding his head. The interview room door was
closed but not locked; the officer did not restrain MacDonald or
tell him that he was under arrest; and the interviewing officer
was the only person in the room with MacDonald. MacDonald
was left alone in the interview room for approximately 40
minutes during the interview. The officer wore plain clothes and
was unarmed.

¶7 MacDonald said that Child fell asleep on the living room
floor so he picked Child up and laid him down in his crib. He
explained that when he later checked on Child, he found him
unresponsive and not breathing, with vomit on his mouth. He
stated that when he found Child, he yelled for his roommate to
help and the roommate called 911. After the interview, an officer
drove MacDonald home.

1. Abusive Head Trauma is defined as “an injury to the skull or
intracranial contents of an infant or young child (<5 years of age)
due to inflicted blunt impact and/or violent shaking.” Sharyn E.
Parks, et al., Centers for Disease Control and Prevention,
Pediatric Abusive Head Trauma: Recommended Definitions for Public
Health Surveillance and Research 10 (2012).

20150123-CA 3 2017 UT App 124
State v. MacDonald

The Second Interview

¶8 A police investigator later called MacDonald and asked
him to come to the police station for a second interview. Police
officers again video-recorded the interview. The interview room
door was closed but not locked. Two officers interviewed
MacDonald; both wore plain clothes and were unarmed. They
did not restrain MacDonald or tell him that he was under arrest.

¶9 During the interview, MacDonald repeated the same
version of events that he described in his first interview—that
after Child fell asleep on the floor, MacDonald put him down in
his crib and later found Child unresponsive and not breathing,
with vomit on his mouth. One of the officers then told
MacDonald that medical tests showed that Child had “suffered
trauma” and suggested that “something else happened.” The
officer told MacDonald that he did not “have any intentions of
running [him] down to jail . . . tonight,” but urged MacDonald to
“take the high road” and “come clean” with what happened to
Child. MacDonald then told the officers that when he walked
into the room to lay Child in his crib, he tripped on the rug and
dropped Child on the floor. After further questioning about
Child’s injuries, the officers left MacDonald alone in the
interview room for approximately one hour. At the conclusion of
the interview, MacDonald provided a signed, written statement.
After the interview, MacDonald’s grandfather drove him home.

The Third Interview

¶10 A police investigator called MacDonald a day later and
asked him to come to the police station for a third interview.
Police officers video-recorded the interview. The interview room
door was again closed but not locked; the interviewing officer
did not restrain MacDonald or tell him that he was under arrest;
and the officer was the only person in the room with
MacDonald. The officer wore plain clothes and was unarmed.

20150123-CA 4 2017 UT App 124
State v. MacDonald

¶11 At the beginning of the interview, the officer read
MacDonald his Miranda rights and asked him if he understood
the rights. MacDonald responded, “Yes.” The officer asked if
MacDonald was still willing to talk to police, and MacDonald
responded affirmatively. MacDonald repeated the version of
events that he described in his second interview—that when he
walked into the room to lay Child in his crib, he tripped on the
rug and dropped Child on the floor. After the interview, police
drove MacDonald home.

Court Proceedings

¶12 The State charged MacDonald with one count of child
abuse with serious bodily injury and one count of false written
statements.2 MacDonald moved to suppress his second and third
interviews. At argument on the motion, the district court
questioned whether the first interview should also be
suppressed given the lack of an express Miranda waiver. The
district court ultimately suppressed MacDonald’s written
statement and his statements from the first and second
interviews, but not the third.

¶13 With respect to the first interview, the court ruled (1) that
MacDonald was in custody for Miranda purposes, and (2) that
the police interrogator was thus required to—but did not—ask
MacDonald if he waived his Miranda rights. With respect to the
second interview, the court ruled (1) that MacDonald was in
custody for Miranda purposes, (2) that the police interrogator did
not read MacDonald his Miranda rights, and (3) that the police
interrogator did not obtain from MacDonald a waiver of his
rights. And the district court suppressed the written statement
based on its finding that MacDonald did not receive or waive his
Miranda rights during the second interview.

2. The State later amended the information to replace the charge
of false written statements with obstruction of justice.

20150123-CA 5 2017 UT App 124
State v. MacDonald

¶14 The State moved under rule 404(b) of the Utah Rules of
Evidence to admit evidence of MacDonald’s interactions with
Child. The court admitted evidence that MacDonald had
directed racial slurs toward Child in the weeks before his
injuries occurred. But the court excluded evidence that
MacDonald (1) yelled frequently at Child, (2) called him a
“whiner,” (3) “flipped off” Child, (4) was jealous of the attention
Mother paid to Child, (5) previously bruised Child’s cheeks
when he administered medication, and (6) previously picked
Child up by the arms in a rough manner, carried him across the
room, and dropped him on a bean bag chair.

¶15 The State appeals the suppression of the first and second
interviews and the exclusion of the rule 404(b) evidence. We
granted interlocutory review.

ISSUES AND STANDARDS OF REVIEW

¶16 The State contends that the district court erred in
suppressing the first and second interviews for two reasons.
First, the State argues that the district court erred in concluding
that MacDonald was in custody for Miranda purposes during the
first and second interviews. In the alternative, the State argues
that, even if MacDonald was in custody during the interviews,
the court erred in concluding that MacDonald did not waive his
rights.

¶17 “A district court’s ruling on a motion to suppress is
reviewed for correctness, including its application of the law to
the facts.” State v. Perea, 2013 UT 68, ¶ 32, 322 P.3d 624 (citation
and internal quotation marks omitted). “We review the district
court’s factual findings for clear error.” Id. We will conclude that
clear error occurred only if, resolving all disputes in the evidence
in a light most favorable to the court’s determination, the court’s
factual findings are not adequately supported by the record. Id.
“Whether an interrogation is custodial is a mixed question of fact

20150123-CA 6 2017 UT App 124
State v. MacDonald

and law, which we review nondeferentially for correctness.”
State v. Tingey, 2016 UT App 37, ¶ 7, 368 P.3d 467 (citing State v.
Levin, 2006 UT 50, ¶¶ 42, 44, 46, 144 P.3d 1096).

¶18 The State also contends that the district court exceeded its
discretion in ruling that the State’s proffered evidence was
inadmissible under rule 404(b) of the Utah Rules of Evidence.
We review a district court’s decision to exclude evidence under
rule 404(b) under an abuse-of-discretion standard. State v. Lucero,
2014 UT 15, ¶ 11, 328 P.3d 841, abrogated on other grounds by State
v. Thornton, 2017 UT 9, 391 P.3d 1016.

ANALYSIS

I. The Interviews

¶19 The State contends that the district court erred in ruling
that MacDonald was in custody and thus entitled to Miranda
warnings. In the alternative, the State contends that even if
MacDonald was in custody, the interrogating officers duly
advised him of his Miranda rights, and MacDonald duly waived
them. Because we determine that MacDonald was not in custody
for Miranda purposes, we do not reach the State’s alternative
contention.

¶20 The Fifth Amendment to the United States Constitution
guarantees that a person shall not be “compelled in any criminal
case to be a witness against himself.” U.S. Const. amend V. “We
protect this right by excluding from a defendant’s criminal trial
any incriminating statement that the defendant made to police
officers while under custodial interrogation if the officers did not
give a Miranda warning.” State v. Levin, 2006 UT 50, ¶ 33, 144
P.3d 1096 (citing Rhode Island v. Innis, 446 U.S. 291, 297, 300–01
(1980); Miranda v. Arizona, 384 U.S. 436, 444–45 (1966)). By
“‘custodial interrogation, we mean questioning initiated by law
enforcement officers after a person has been taken into custody

20150123-CA 7 2017 UT App 124
State v. MacDonald

or otherwise deprived of his freedom of action in any significant
way.’” California v. Beheler, 463 U.S. 1121, 1123 (1983) (per
curiam) (quoting Miranda, 384 U.S. at 444); accord Levin, 2006 UT
50, ¶ 35.

¶21 Custody is a “term of art that specifies circumstances that
are thought generally to present a serious danger of coercion.”
Howes v. Fields, 565 U.S. 499, 508–09 (2012). To determine
whether someone is in custody, “the initial step is to ascertain
whether, in light of the objective circumstances of the
interrogation, a reasonable person would have felt he or she was
not at liberty to terminate the interrogation and leave.” Id. at 509
(brackets, citation, and internal quotation marks omitted).
“Although the circumstances of each case must certainly
influence a determination of whether a suspect is ‘in custody’ for
purposes of receiving of Miranda protection, the ultimate inquiry
is simply whether there is a ‘formal arrest or restraint on
freedom of movement’ of the degree associated with a formal
arrest.” Beheler, 463 U.S. at 1125 (quoting Oregon v. Mathiason, 429
U.S. 492, 495 (1977) (per curiam)).

¶22 In addressing this initial step of the inquiry, “courts must
examine all of the circumstances surrounding the interrogation.”
Howes, 565 U.S. at 509 (citation and internal quotation marks
omitted). Factors that have been found relevant to this inquiry
include “the location of the questioning, its duration, statements
made during the interview, the presence or absence of physical
restraints during the questioning, and the release of the
interviewee at the end of the questioning.” Id. (citations omitted).
The location or site of the questioning “is more likely to indicate
that the suspect was in custody when the location is confined or
isolated, or is intimidating or coercive.” State v. Fuller, 2014 UT
29, ¶ 45, 332 P.3d 937 (citations and internal quotation marks
omitted). Also, the fact that “the interrogation took place in a
police car”—or, as here, in a police station—“is not dispositive of
the custody issue and must be weighed against the defendant’s
voluntary choice to enter the car” or station house. See id. In

20150123-CA 8 2017 UT App 124
State v. MacDonald

examining the “objective indicia of arrest, we look to whether
handcuffs, drawn guns, locked doors, threats, or coercion are
present.” Id. (citation and internal quotation marks omitted).
And in examining the officers’ questioning, we “ask if the form
of the interrogation evidenced a clear coercive intent on the part
of the officer.” Id. (citation and internal quotation marks
omitted).

¶23 Another relevant factor concerns whether the questioning
focused on the accused. Id. ¶ 44. However, “a police officer’s
subjective view that the individual under questioning is a
suspect, if undisclosed, does not bear upon the question whether
the individual is in custody for purposes of Miranda.” Stansbury
v. California, 511 U.S. 318, 324 (1994) (per curiam); see also Levin,
2006 UT 50, ¶ 35 (“[W]e focus . . . on objective evidence of the
officers’ intentions.”); State v. Heywood, 2015 UT App 191,
¶ 50 n.4, 357 P.3d 565. And even when police disclose that they
suspect the interviewee of a crime, that disclosure may not bear
great weight in the custody analysis where other objective
indicia of arrest are absent. For example, in Mathiason, police
disclosed to Mathiason that they suspected him of committing a
burglary and falsely informed him that his fingerprints were
found at the scene of the crime. Mathiason, 429 U.S. at 495. But in
light of the totality of the circumstances present, the Supreme
Court determined that Mathiason was not in custody. See id. at
495–96. In sum, the Supreme Court has “explicitly recognized
that Miranda warnings are not required simply because the
questioning takes place in the station house, or because the
questioned person is one whom the police suspect.” Beheler, 463
U.S. at 1125 (citation and internal quotation marks omitted).

¶24 But determining whether a reasonable person would have
felt he or she was at liberty to terminate the interrogation and
leave is only the first step in the custody analysis. “Not all
restraints on freedom of movement amount to custody for
purposes of Miranda.” Howes, 565 U.S. at 509. Even if the subject
would not have felt free to leave, we must still question

20150123-CA 9 2017 UT App 124
State v. MacDonald

“whether the relevant environment presents the same inherently
coercive pressures as the type of station house questioning at
issue in Miranda.” Id. For example, a driver is not free to leave
during a traffic stop, Delaware v. Prouse, 440 U.S. 648, 663 (1979),
nor a pedestrian during a Terry stop, see Terry v. Ohio, 392 U.S. 1,
30–31 (1968). But these “temporary and relatively
nonthreatening” detentions “do[] not constitute Miranda
custody.” Maryland v. Shatzer, 559 U.S. 98, 113 (2010); see also
Berkemer v. McCarty, 468 U.S. 420, 436–40 (1984). The Supreme
Court has contrasted such detentions with stationhouse
interrogation, “which frequently is prolonged, and in which the
detainee often is aware that questioning will continue until he
provides his interrogators the answers they seek,” and in which
the subject “feels completely at the mercy of the police.”
Berkemer, 468 U.S. at 438.

¶25 In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme
Court decided the appeals of four defendants, each raising the
same issue but on slightly different facts regarding custody.
Miranda was arrested in his home, taken to the police station,
and interviewed for two hours without being advised of his Fifth
Amendment rights. Id. at 491–92. Vignera was picked up by
police, transported to two different police stations, questioned,
formally arrested, transported to a third police station, and
questioned again without being advised of his Fifth Amendment
rights. Id. at 493–94. Westover was arrested by police, placed in a
police line-up, booked, and interviewed without being advised
of his Fifth Amendment rights. Id. at 494–95. Stewart was
arrested in his home; police then searched his home, arrested his
wife and three visitors to his home, jailed him, and interrogated
him nine times over the course of five days without advising
him of his rights. Id. at 497. In each instance, the Supreme Court
concluded that “statements were obtained from the defendant
under circumstances that did not meet constitutional standards
for protection of the privilege” against self-incrimination—
which gave rise to the common phrase “Miranda rights.” Id. at

20150123-CA 10 2017 UT App 124
State v. MacDonald

491. All four interrogations, the Court noted, “share salient
features—incommunicado interrogation of individuals in a
police-dominated atmosphere, resulting in self-incriminating
statements without full warnings of constitutional rights.” Id. at
445.

¶26 Later Supreme Court cases illustrate circumstances where
defendants, though questioned by police, were not in custody
for purposes of receiving their Miranda rights. For example, in
Oregon v. Mathiason, 429 U.S. 492 (1977) (per curiam), Mathiason
voluntarily agreed to go to the police station after police initiated
contact with him. Id. at 493. Police officers informed Mathiason
that he was a suspect in a burglary, falsely informed him that his
fingerprints were found at the scene of the crime, and conducted
a 30-minute interview. Id. at 493, 495. Mathiason admitted to
participating in the burglary. Id. at 493. Police officers then
advised him of his Miranda rights. Id. at 494. Mathiason left the
police station after the interview. Id. The Supreme Court held
that Mathiason was not in custody for Miranda purposes,
concluding that such “a noncustodial situation is not converted
to one in which Miranda applies simply because a reviewing
court concludes that, even in the absence of any formal arrest or
restraint on freedom of movement, the questioning took place in
a ‘coercive environment.’” Id. at 495 (emphasis added).

¶27 In California v. Beheler, 463 U.S. 1121 (1983) (per curiam),
Beheler reported a murder to police and voluntarily agreed to
accompany them to the police station, where the interview took
place. Id. at 1122. Police officers had already identified Beheler as
a suspect in the murder, but told him he was not under arrest. Id.
at 1123. Beheler was interviewed shortly after the crime was
committed, while he was “emotionally distraught,” and he had
consumed alcohol earlier in the day. Id. at 1124–25. The Supreme
Court held that Miranda warnings were not required where “the
suspect is not placed under arrest, voluntarily comes to the
police station, and is allowed to leave unhindered by police after
a brief interview.” Id. at 1121.

20150123-CA 11 2017 UT App 124
State v. MacDonald

¶28 Here, in light of the foregoing precedents, we cannot
conclude that the first and second interviews presented “such a
restriction on [MacDonald’s] freedom as to render him ‘in
custody.’” See Mathiason, 429 U.S. at 495. Accordingly, Miranda
warnings were not required.

A. The First Interview

¶29 MacDonald initiated contact with authorities by having
his roommate call 911 when he found Child unresponsive. He
later voluntarily accompanied police officers to the police station
for questioning. The duration of the questioning was less than
half an hour. Although the interview lasted about an hour,
MacDonald was left alone for 40 minutes of that time. The
duration of the interview was thus comparable to that in Beheler
and Mathiason. See Beheler, 463 U.S. at 1122 (“The interview
lasted less than 30 minutes.”); Mathiason, 429 U.S. at 495 (“[a]t
the close of a ½-hour interview . . .”). The officers also assured
MacDonald that he would be allowed to leave after the
interview. Physical restraints were absent during the interview,
the officers wore plain clothes and displayed no visible weapons,
and the interview room door was closed but not locked. See State
v. Reigelsperger, 2017 UT App 101, ¶ 58 (concluding that
circumstances of an interview suggesting the defendant was not
in Miranda custody included a lack of physical restraints and
detectives that were unarmed, not in full uniform, and carried
only a pair of handcuffs). Finally, the police officers allowed
MacDonald to leave after questioning.3

3. MacDonald argues that because “the State’s argument
. . . includes a number of facts that were not found by the trial
court, and the State relies on these facts,” the State “essentially
asks this Court to find the facts on appeal from the transcript of
the evidentiary hearing, rather than granting any deference to
the trial court’s findings of fact.” Specifically, MacDonald takes
(continued…)

20150123-CA 12 2017 UT App 124
State v. MacDonald

¶30 Under step one of the Miranda analysis, we conclude that
the circumstances surrounding MacDonald’s interview are akin
to those of the interviews in Beheler and Mathiason, where the
defendants came to the station voluntarily, were not placed
under arrest, and left the station after the interviews. See Beheler,
463 U.S. at 1123–24; Mathiason, 429 U.S. at 495. Nor did the
interview feature the criteria highlighted in Berkemer: the
questioning was not prolonged, and the setting did not suggest
either that questioning would continue until MacDonald
provided his interrogators the answers they sought—indeed he
did not provide those answers—or that he was completely at the

(…continued)
issue with the State’s reliance on the following facts:
(1) “MacDonald was never restrained or placed in handcuffs”;
(2) “the detectives were unarmed and in plain clothes”;
(3) “MacDonald was never deprived of food or water”; and
(4) “MacDonald had his cell phone with him during the second
interview.” We conducted an independent review of the entire
record, including all three video-recorded interviews. See State v.
Streeter, 900 P.2d 1097, 1101–02 (Utah Ct. App. 1995) (explaining
that to determine the voluntariness of a defendant’s statements,
we may “conduct an independent review of the entire record”).
The recordings show that MacDonald was never restrained and
that the officers wore plain clothes and displayed no visible
weapons. The recordings also make clear that during the first
interview MacDonald had a water bottle with him, and during
the second interview he was given a bottle of water and had his
cell phone with him. Further, MacDonald conceded in his
motion to suppress that he “was not restrained in handcuffs or
told he was under arrest,” and he reiterated that at the hearing
on his motion. Therefore, our independent review of the record
satisfies us that although the district court did not include these
facts in its findings, they were established during MacDonald’s
pretrial proceedings.

20150123-CA 13 2017 UT App 124
State v. MacDonald

mercy of the police officers, see Berkemer v. McCarty, 468 U.S. 420,
438 (1984). We conclude that, as in Beheler, Miranda warnings
were not required because “the suspect [was] not placed under
arrest, voluntarily [came] to the police station, and [was] allowed
to leave unhindered by police after a brief interview.” See Beheler,
463 U.S. at 1121.

¶31 In light of the objective circumstances of the interrogation,
we cannot say that MacDonald was subject to formal arrest or
restraint on freedom of movement to the degree associated with
a formal arrest. See id. at 1125.

¶32 The district court found that the interview was
“accusatory in nature.” Of course, “[a]ny interview of one
suspected of a crime by a police officer will have coercive aspects
to it, simply by virtue of the fact that the police officer is part of a
law enforcement system which may ultimately cause the suspect
to be charged with a crime.” Mathiason, 429 U.S. at 495. But
“even if a person is a suspect and accusatory questioning takes
place in a police station, the person is not necessarily ‘in custody’
if there is no arrest or restriction on his freedom of movement
and the interrogated person is free to terminate the interview
and leave.” State v. Mirquet, 914 P.2d 1144, 1148 (Utah 1996)
(citing Mathiason, 429 U.S. at 495). MacDonald did not attempt to
terminate the interview, and he was free to leave at its
conclusion. MacDonald’s questioning bore few if any of the
features of the “atmosphere of domination” projecting the
“invincibility of the forces of the law” described in Miranda and
summarized above. See Miranda v. Arizona, 384 U.S. 436, 451
(1966).

¶33 MacDonald argues that we should consider in our
analysis the district court’s finding that “MacDonald was the
focus of the investigation.” First, “a police officer’s subjective
view that the individual under questioning is a suspect, if
undisclosed, does not bear upon the question whether the
individual is in custody for purposes of Miranda.” Stansbury v.

20150123-CA 14 2017 UT App 124
State v. MacDonald

California, 511 U.S. 318, 324 (1994) (per curiam); see also State v.
Levin, 2006 UT 50, ¶ 35, 144 P.3d 1096 (“[W]e focus
on . . . objective evidence of the officers’ intentions.”); State v.
Heywood, 2015 UT App 191, ¶ 50 n.4, 357 P.3d 565. Here, of
course, MacDonald cannot have been unaware that he was the
focus of the inquiry. As the sole caregiver at the moment Child
suffered injuries consistent with having been shaken,
MacDonald immediately attracted official scrutiny. But “the
form of the interrogation” did not evidence “a clear coercive
intent on the part of the officer.” See State v. Fuller, 2014 UT 29,
¶ 45, 332 P.3d 937 (citation and internal quotation marks
omitted). Furthermore, in Mathiason police officers disclosed to
Mathiason that they suspected him of committing a burglary
and falsely informed him that his fingerprints were found at the
scene of the crime. 429 U.S. at 493. Nevertheless, the Supreme
Court concluded that Mathiason was not in custody. See id. at
495.

¶34 In sum, we conclude that in the first interview
MacDonald was not in custody for purposes of Miranda.
Accordingly, we reverse the district court’s order suppressing
this evidence.

B. The Second Interview

¶35 The location of the second interview, like the first, was the
police station. MacDonald went there voluntarily at an officer’s
request. The duration of the questioning itself was
approximately one hour and 50 minutes. (Although the
interview lasted two hours and 50 minutes, MacDonald was left
alone for approximately one hour of that time.) As in the first
interview, the officers assured MacDonald that he would be
allowed to leave after the interview (as he did after the first
interview), physical restraints were absent, the officers wore
plain clothes and displayed no visible weapons, the interview
room door was closed but not locked, and the officers allowed
MacDonald to leave at the end of the questioning. The

20150123-CA 15 2017 UT App 124
State v. MacDonald

questioning was somewhat more accusatory than in the first
interview, with the officers disclosing new information that
suggested that MacDonald had lied in the first interview. But the
questioning, though at times pointed, was calm, respectful, and
not sufficiently coercive to render the interview custodial.

¶36 We agree with the district court that a “reasonable person
[would] have felt he or she was not at liberty to terminate the
interrogation and leave.” See Howes v. Fields, 565 U.S. 499, 509
(2012) (alteration in original) (citation and internal quotation
marks omitted). But Supreme Court precedent makes clear that
more is required. And we do not agree that MacDonald was
subject to “‘formal arrest or restraint on freedom of movement’
of the degree associated with a formal arrest.” California v.
Beheler, 463 U.S. 1121, 1125 (1983) (per curiam) (quoting
Mathiason, 429 U.S. at 495). The environment of MacDonald’s
second interview did not present “the same inherently coercive
pressures as the type of station house questioning at issue in
Miranda.” See Howes, 565 U.S. at 509. The interview was not
prolonged, did not create the impression that MacDonald would
be held until he had provided the answers the police wanted,
and did not occur in an environment suggesting that he was
completely at the mercy of the police officers. See Berkemer v.
McCarty, 468 U.S. 420, 438 (1984).

¶37 Accordingly, we hold that the district court erred when it
determined that MacDonald was in custody and entitled to
receive his Miranda rights. And because MacDonald was not in
custody and therefore was not entitled to receive his Miranda
rights, we hold that the district court also erred in suppressing
MacDonald’s written statement. Accordingly, we reverse the
district court’s order suppressing this evidence as well.

II. Rule 404(b) Evidence

¶38 The State contends that the district court exceeded its
discretion by excluding evidence that MacDonald yelled at both

20150123-CA 16 2017 UT App 124
State v. MacDonald

children, called Child a “whiner,” harbored jealousy toward
Child, “flipped off” Child, previously bruised Child’s cheeks,
and dropped him onto a bean bag chair. We reverse the district
court’s decision to exclude the evidence that MacDonald bruised
Child’s cheeks and dropped him onto a bean bag chair. We
affirm the district court’s decision to exclude the other evidence.

¶39 “Evidence 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). This evidence, however,
“may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Id. R. 404(b)(2).
Even then, under rule 403, the court “may exclude relevant
evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Id. R. 403.

¶40 The possibility that evidence of other acts may sustain an
improper inference as well as a proper one is “not enough to
dictate the exclusion of this evidence under rule 404(b). The
threshold 404(b) question is whether the evidence has a
plausible, avowed purpose beyond the propensity purpose that
the rule deems improper. If it does then the evidence is
presumptively admissible (subject to rule 402 and 403 analysis).”
State v. Thornton, 2017 UT 9, ¶ 58, 391 P.3d 1016 (emphasis
omitted). An ostensibly proper purpose may be rejected as a
pretext or “ruse,” such as where evidence that shows bad
character is offered to prove an uncontested issue. Id. ¶ 59
(quoting State v. Verde, 2012 UT 60, ¶ 22, 296 P.3d 673).4 “Short of
that, however, the court’s job under rule 404(b) is not to balance

4. Of course, such evidence would not survive analysis under
rule 403.

20150123-CA 17 2017 UT App 124
State v. MacDonald

or weigh competing (proper and improper) inferences. Such
weighing comes in under rule 403.” Id. A district court then must
“bind its analysis to the text of rule 403, considering those factors
that are appropriate given the particular circumstances of the
case.” State v. Lowther, 2017 UT 34, ¶ 45.

¶41 “Stated succinctly, to be admissible, evidence of prior bad
acts must be relevant and offered for a genuine, noncharacter
purpose; furthermore, the probative value of the evidence must
not be substantially outweighed by the danger of unfair
prejudice.” State v. Lucero, 2014 UT 15, ¶ 13, 328 P.3d 841,
abrogated on other grounds by Thornton, 2017 UT 9. We review each
of the district court’s evidentiary rulings below under these
standards.5

A. Yelling at the Children

¶42 The State contends that the prosecutor offered evidence
that MacDonald yelled at Child and the other child to show
MacDonald’s motive (his “contempt” for Child), lack of accident,
and context. During the roughly six weeks that Mother and
Child lived with MacDonald, he “yelled constantly and

5. We commend the district court for addressing and
scrupulously examining each bad act’s admissibility separately.
While recent case law makes clear that failure to “scrupulously
examine” the evidence or to engage in a “separate analysis of
distinct strands of prior misconduct evidence presented under
rule 404(b)” is not automatically reversible error, nevertheless
“the quality of appellate review [is] enhanced by a more fulsome
statement of the district judge’s analysis on the record.” State v.
Thornton, 2017 UT 9, ¶ 41, 391 P.3d 1016. And our supreme court
advised that “[t]he careful trial judge will still proceed as
outlined in our recent Lucero decision marching through the
standards set forth in rules 404(b), 402, and 403, and presenting
[the] analysis on the record.” Id. ¶ 54.

20150123-CA 18 2017 UT App 124
State v. MacDonald

excessively.” The district court concluded that evidence that
MacDonald yelled at the children was “offered to show that
[MacDonald] was an impatient person and therefore more likely
to have acted in accordance with that bad character trait on
January 18, 2013” and was, therefore, offered for an
impermissible purpose. The district court excluded the evidence.

¶43 The district court did not exceed its discretion in ruling
that this evidence did not have, in the words of a later opinion
from our supreme court, “a plausible, avowed purpose beyond
the propensity purpose that the rule deems improper.” See
Thornton, 2017 UT 9, ¶ 58 (emphasis omitted). Rather, evidence
that MacDonald yelled at the children was offered to prove that
on a particular occasion MacDonald acted in conformity with a
character trait. See Utah R. Evid. 404(b)(1). Accordingly, we
affirm the district court’s ruling excluding evidence that
MacDonald yelled at the children.

B. Calling Child a “Whiner”

¶44 The State next contends that the district court abused its
discretion in excluding evidence that MacDonald called Child a
“whiner.” The district court concluded that evidence that
MacDonald called Child a “‘whiner’ does not manifest the kind
of deep-seated contempt that would move a person to cause
serious bodily injury.” Thus, the court concluded, “the probative
value of this statement is paper-thin and is substantially
outweighed by the improper character purpose—[to show] that
[MacDonald] is an impatient or bad father.” The State argues
that the evidence shows why MacDonald would have harmed
Child on January 18. The State seeks to use it to counter
anticipated defense testimony that MacDonald “loved” Child
and had no reason to hurt him.

¶45 We cannot say that the district court exceeded its
discretion in excluding, under rule 403, evidence that
MacDonald called Child a “whiner.” We thus affirm the ruling.

20150123-CA 19 2017 UT App 124
State v. MacDonald

C. Jealousy of Child

¶46 The State next challenges the district court’s exclusion of
evidence that MacDonald was jealous of Child. The State argues
that the evidence was admissible under rules 401 and 402 of the
Utah Rules of Evidence because “evidence showing that
MacDonald was jealous of [Child] makes it more probable that
he hurt him intentionally, rather than accidentally.”

¶47 However, the district court did not exclude this evidence
as irrelevant under rules 401 and 402, but as unhelpful under
rule 701. To be admissible under rule 701 of the Utah Rules of
Evidence, lay opinions must be “helpful to clearly
understanding the witness’s testimony or to determining a fact
in issue.”

¶48 The district court ruled that MacDonald’s “feeling of
jealousy” “is not a prior bad act subject to Rule 404(b).” (Internal
quotation marks omitted.) Rather, it determined that “the
conclusion that [MacDonald] was jealous of [Child] constitutes
the lay opinion of [Mother]” and “is not helpful to determining a
fact in issue.” The court explained that the “jealousy she
describes is not manifest in ways that would suggest a deep-
seated envy that would motivate [MacDonald] to commit a
violent act against [Child]” and therefore “would not be helpful
to the trier of fact.”

¶49 We are not convinced that evidence that is admissible
under rule 401 and 402 is necessarily admissible under rule 701.
Rules 401 and 402 “establish a very low bar that deems even
evidence with the slightest probative value relevant and
presumptively admissible.” State v. Richardson, 2013 UT 50, ¶ 24,
308 P.3d 526 (citation and internal quotation marks omitted). It is
not obvious—and the State has not shown—that evidence
meeting this low bar necessarily qualifies as “helpful to clearly
understanding the witness’s testimony or to determining a fact
in issue” under rule 701. Because the State has failed to address

20150123-CA 20 2017 UT App 124
State v. MacDonald

“the basis of the district court’s ruling, we reject this challenge.”
See Golden Meadows Props., LC v. Strand, 2010 UT App 257, ¶ 17,
241 P.3d 375.

D. “Flipping Off” Child

¶50 The State contends that evidence that MacDonald
“flipped off” Child on January 13 “has strong probative value”
to demonstrate MacDonald’s contempt for Child. The district
court determined that evidence of the “prior bad act is offered
for a proper non-character purpose—to show that the
[MacDonald] had contempt for [Child].” But the court concluded
that “the probative value of this evidence is thin” because
“[f]lipping someone off—while an aggressive gesture—does not
manifest an intent to kill or to do serious bodily injury.” On the
other hand, the court reasoned, the “risk of unfair prejudice is
high” because the gesture may show that MacDonald “is an
impatient or crude person.”

¶51 The district court’s balancing of the danger of unfair
prejudice posed by this testimony against its probative value is
well within the reasonable range and thus not an abuse of
discretion. We affirm the district court’s ruling on this issue.

E. Prior Treatment of Child

¶52 The State also challenges the district court’s exclusion of
evidence that MacDonald mistreated Child. The evidence would
show that MacDonald (1) picked Child up by the arms in a
rough manner, carried him across the room, and dropped him
onto a bean bag chair on several occasions, and (2) may have
bruised Child’s cheeks in administering Child’s medicine.
Specifically, the State argues that this evidence shows
“MacDonald’s motive for harming [Child]—namely his
‘contempt’ for him”—and “rebuts MacDonald’s current claim
that [Child] was injured accidentally.” The district court ruled
that because the State “does not contend that [Child] was injured

20150123-CA 21 2017 UT App 124
State v. MacDonald

when [MacDonald] intentionally dropped him,” “evidence that
[MacDonald] intentionally dropped [Child] on prior occasions is
not relevant and therefore inadmissible.”

¶53 “Our child abuse case law clearly indicates that evidence
of instances of uncharged abuse involving the same victim and
the same defendant is admissible for proper noncharacter
purposes.” State v. Killpack, 2008 UT 49, ¶ 46, 191 P.3d 17,
abrogated on other grounds as recognized by State v. Lowther, 2017
UT 34.6 “[S]pecific instances of uncharged child abuse may be
properly admitted as noncharacter evidence under rule 404(b)
when offered to establish a specific pattern of behavior by the
defendant toward one particular child, the victim.” Id. (citation
and internal quotation marks omitted). “Such evidence is often
indicative of the defendant’s state of mind and completes the
story of the charged abuse.” Id. (citation and internal quotation
marks omitted). Further, “evidence of prior child abuse is
allowed to show identity, intent or mental state, and lack of
accident or mistake.” Id. (citation and internal quotation marks
omitted).

¶54 In Killpack, prior instances of abuse were relevant to
demonstrate that the victim’s death was not accidental. Id. ¶ 48.
Although the victim died as a result of forced water intoxication,
the prior instances of uncharged abuse—which included
choking, hitting, and force-feeding—tended “to establish that
Killpack had a specific pattern of” harming the victim. Id. ¶ 49.

6. Indeed, even evidence of prior acts of uncharged abuse of
other children is admissible when the question of whether a
victim’s injuries were intentionally or accidentally inflicted is at
issue. See State v. Widdison, 2001 UT 60, ¶¶ 44–45, 28 P.3d 1278
(concluding that evidence of prior abuse of other children “was
relevant because it was introduced to show that [the victim’s]
injuries were not the result of an accident”).

20150123-CA 22 2017 UT App 124
State v. MacDonald

¶55 The district court ruled that evidence that MacDonald
intentionally dropped Child on prior occasions was not relevant
and therefore inadmissible because the State does not contend
that Child’s injuries resulted from an intentional drop. But this
prior treatment of Child tends “to establish that [MacDonald]
had a specific pattern of” harming Child and that the incident on
January 18 was perhaps not an accident. See id. ¶¶ 46, 49. And
because prior evidence of abuse, even when the prior abuse was
inflicted in a different manner than the charged abuse, is
admissible to show “identity, intent or mental state, and lack of
accident or mistake,” the district court exceeded its discretion in
excluding evidence that MacDonald intentionally dropped Child
on prior occasions. See id. ¶ 46 (citation and internal quotation
marks omitted).

¶56 The district court also ruled that “there does not appear to
be a proper non-character purpose” for introducing evidence of
Child’s bruised cheeks. The district court ruled that even if there
was a proper non-character purpose, “the probative value of this
evidence is substantially outweighed by the danger of unfair
prejudice,” in part because the court saw “little similarity
between the mechanism of injury to [Child’s] cheeks and the
mechanism of injury that caused [Child’s] brain damage.”

¶57 It is true that the alleged bruising of Child’s cheeks is not
the same mechanism of injury that, the State alleges, caused
Child’s brain damage. But the rule as we understand it does not
require that level of similarity. Rule 404(b) excludes evidence
offered to prove that the accused acted in conformity with his
character or a trait of character on the occasion in question. See
Utah R. Evid. 404(b). But, as stated in Killpack, evidence may be
admitted “to establish a specific pattern of behavior by the
defendant toward one particular . . . victim.” See id. In addition,
the evidence in question here had a tendency to rebut
MacDonald’s claim that Child’s injuries were the result of an
accident.

20150123-CA 23 2017 UT App 124
State v. MacDonald

¶58 Evidence may of course be relevant under rule 402 and
offered for a non-character purpose under rule 404(b) but still be
inadmissible under rule 403. Indeed, the purpose of rule 403 is
“to exclude otherwise admissible evidence,” State v. Allen, 2005
UT 11, ¶ 24, 108 P.3d 730, whose probative value is nonetheless
substantially outweighed by the danger that it will cause unfair
prejudice, confuse the issues, mislead the jury, and so forth, see
Utah R. Evid. 403. Moreover, as noted in Thornton, the fact that
evidence may serve a proper purpose does not mean that it may
not also serve an improper one. See State v. Thornton, 2017 UT 9,
¶¶ 58–59, 391 P.3d 1016. In such situations, rule 403 prescribes
the test for determining whether the cost of the admission of
otherwise admissible evidence is too high.

¶59 Here, the trial court performed the rule 403 weighing and
concluded that the danger of unfair prejudice substantially
outweighed the probative value of the evidence. But it did so
only after ruling that the evidence served no permissible
purpose. We have now reversed that ruling. Accordingly, we
remand the question back to the trial court to reweigh the
evidence under rule 403 in light of this opinion.

CONCLUSION

¶60 For the foregoing reasons, we reverse the decision of the
district court to suppress MacDonald’s written statement and his
first and second interviews. We also reverse the decision of the
district court to exclude evidence of MacDonald’s prior abuse of
Child. We affirm on all other grounds and remand for further
proceedings.

20150123-CA 24 2017 UT App 124