State v. Barney

2018 UT App 159
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
PHILLIP VIRGILE BARNEY ,
Appellant.
Opinion
No. 20160620-CA
Filed August 23, 2018
Seventh District Court, Price Department
The Honorable George M. Harmond
No. 151700227
Don M. Torgerson, Attorney for Appellant
Sean D. Reyes and Jeffrey D. Mann, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES R YAN M. HARRIS and DIANA HAGEN concurred.
MORTENSEN, Judge:
¶1 	Phillip Virgile Barney held Victim hostage overnight in a
pickup 	truck 	on 	a 	lonely 	country 	road, 	beating 	Victim
and 	holding 	a 	knife 	to 	her 	throat 	in 	the 	process. 	During
the ordeal, Barney told Victim that he intended to continue to
torture her and eventually kill her. Based on this incident,
a 	jury 	convicted 	Barney 	of 	aggravated 	kidnapping,
aggravated assault, and violation of a protective order. Barney
claims his convictions should be reversed because the trial court
allowed 	evidence 	of 	other 	acts 	of 	abuse 	that 	Barney 	had
perpetrated against Victim. We reject Barney’s claims and affirm.

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BACKGROUND
¶2 	Victim 	walked 	alone 	one 	evening 	searching 	for 	her
teenage daughter. Despite an active protective order barring
contact, Barney approached Victim in his truck and offered a
ride to her daughter’s location. Although Victim and Barney had
been arguing earlier that day, Victim got into his truck.
¶3 	As soon as Victim got in, Barney grabbed her hair and
slammed her head against the center console, pinning her neck
under his forearm. Barney sped away, punching and kneeing
Victim in the face while threatening to kill her. He then drove
until the truck ran out of gas on a rural country road.
¶4 	Stranded there, Barney pulled out a large knife and held it
to Victim’s throat. Barney threatened to torture and kill Victim,
saying he would force a stone down her throat to choke her, and
that when she was almost dead he would slit her throat and fill
her body with rocks. At one point, Barney gave the knife to
Victim and told her to kill herself, which she considered doing.
Barney eventually fell asleep, but Victim remained in the truck
with him until morning.
¶5 	After sunrise, Barney left to find gas. He found a local
rancher, who brought gas to the stranded truck. Victim did not
speak with the rancher or flee while Barney was gone. Barney
then brought Victim home. Victim did not report this incident
(the 	Kidnapping 	Incident) 	to 	the 	police 	until 	roughly 	two
months later.
¶6 	The State charged Barney for the Kidnapping Incident.
Before trial, the State moved to admit evidence of other acts of
abuse that Barney had committed against Victim. Those acts
included (1) a prior incident where, because Victim refused to
get in his truck, Barney drove his truck at a high speed toward
Victim, narrowly missing her (the Vehicular Assault Incident);
(2) a prior incident where Barney, upset that Victim was not

State v. Barney
20160620-CA 	3 	2018 UT App 159
responding 	to 	his 	attempts 	to 	contact 	her, 	found 	Victim
babysitting at a friend’s house, pushed his way into the home,
and pinned her by the neck against a wall with his forearm while
she was holding a child (the Strangulation Incident); (3) a prior
incident where Barney sent letters to Victim while he was in jail,
violating a protective order (the Protective Order Incident); and
(4) an incident that occurred after the Kidnapping Incident, but
before the Kidnapping Incident was reported, where Barney
began speeding with Victim in the truck, grabbing her by the
head, and when he refused to stop, Victim tried to jump out of
the truck only to have Barney pull her back in (the Moving
Vehicle Incident). The trial court initially excluded all of this
evidence, but it did not foreclose the admission of the evidence
on rebuttal “if [Victim is] challenged or if there’s evidence that
she should have done something and didn’t.”
¶7 	During trial, Barney’s defense counsel questioned Victim
about why she did not try to escape and why she waited so long
to report the Kidnapping Incident to the police. To rebut those
concerns, 	the 	State 	again 	moved 	to 	admit 	the 	other-acts
evidence. 	The 	trial 	court 	admitted 	the 	Vehicular 	Assault,
Strangulation, 	and 	Protective 	Order 	Incidents 	for 	the
noncharacter purpose of explaining Victim’s state of mind: her
fear of Barney. The trial court also allowed evidence of the
Moving Vehicle Incident to show Barney’s “modus operandi,”
and Victim’s “reaction and her fear.”
¶8 	A 	jury 	convicted 	Barney 	of 	aggravated 	kidnapping,
aggravated assault, and violation of a protective order. Barney
appeals, challenging the trial court’s decision to allow the other-
acts evidence.
ISSUE AND STANDARD OF REVIEW
¶9 	Barney contends that the trial court erred in admitting the
four instances of other-acts evidence. Challenges to a trial court’s

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ruling on 404(b) evidence are reviewed for abuse of discretion.
State v. Thornton, 2017 UT 9, ¶ 56, 391 P.3d 1016. That is,
appellate courts “simply assess whether the district judge made
an error in admitting or excluding the evidence in question.” Id.
¶ 53 (emphasis omitted). “[A]ppellate review of evidentiary
rulings is on the decision made at trial, not the process by which
that decision is reached.” Id. ¶ 3.
ANALYSIS
¶10 	Barney contends that the trial court erred in admitting
evidence 	of 	the 	Vehicular 	Assault, 	Strangulation, 	Protective
Order, 	and 	Moving 	Vehicle 	Incidents. 	Specifically, 	Barney
argues that the other-acts evidence was not admitted for an
appropriate 	noncharacter 	purpose, 	the 	evidence 	was 	not
relevant, and the evidence was prejudicial. We disagree on all
points.
¶11 	Rule 404(b) of the Utah Rules of Evidence sets forth the
standards governing a trial court’s decision to admit or exclude
evidence of crimes, wrongs, or other acts. The rule prohibits the
use of this evidence “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). Evidence
of crimes, wrongs, or other acts is admissible, however, “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). As stated, in reviewing a trial
court’s ruling on 404(b) evidence, appellate courts “simply assess
whether 	the 	district 	judge 	made 	an 	error 	in 	admitting 	or
excluding the evidence in question.” State v. Thornton, 2017 UT 9,
¶ 53, 391 P.3d 1016 (emphasis omitted).
¶12 	We 	first 	address Barney’s argument 	that there 	is no
plausible, avowed purpose for the evidence beyond showing his
propensity for bad behavior. Second, we examine whether the

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evidence was relevant. Third, we analyze whether the evidence
was prejudicial.
I. Plausible, Avowed Noncharacter Purpose
¶13 	“The threshold 404(b) question is whether the evidence
has a plausible, avowed purpose beyond the propensity purpose
that the rule deems improper.” State v. Thornton, 2017 UT 9, ¶ 58,
391 P.3d 1016 (emphasis omitted). A trial court might conclude
that the offered noncharacter purpose is a ruse. “Short of that,
however, the court’s job under rule 404(b) is not to balance or
weigh competing (proper and improper) inferences.” Id. ¶ 59.1
Here, the trial court concluded that the other-acts evidence had
been offered for a proper purpose. Specifically, the trial court
allowed evidence of the Vehicular Assault, Strangulation, and
Protective 	Order 	Incidents 	for 	the 	noncharacter 	purpose 	of
explaining Victim’s state of mind—her fear of Barney. The trial
court allowed evidence of the Moving Vehicle Incident to show
Barney’s “modus operandi” and Victim’s “reaction and her
fear.” In this context, fear is synonymous with Victim’s state of
mind, a proper noncharacter purpose.
¶14 	Our 	supreme 	court 	has 	clearly 	held 	that 	other-acts
evidence showing a victim’s state of mind can qualify as a
1. Earlier decisions from the Utah Supreme Court required that,
in situations where other-acts evidence sustains both proper and
improper 	inferences, 	courts 	“should 	balance 	[proper 	and
improper 	inferences] 	against 	each 	other 	under 	rule 	403,
excluding the bad acts evidence if its tendency to sustain a
proper 	inference 	is 	outweighed 	by 	its 	propensity 	for 	an
improper inference or for jury confusion about its real purpose.”
See State v. Verde, 2012 UT 60, ¶ 18, 296 P.3d 673, abrogated by
State v. Thornton, 2017 UT 9, 391 P.3d 1016. Thus, our supreme
court in Thornton altered its previous directive.

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noncharacter purpose. See State v. Bates, 784 P.2d 1126, 1127
(Utah 1989) (explaining that evidence was admissible where it
was “elicited to describe the state of mind of the victim” to
explain why the victim “was afraid of defendant” and thus “did
not report the incidents sooner”); see also State v. Harter, 2007 UT
App 5, ¶ 28, 155 P.3d 116 (citing Bates and holding that the
victim’s “state of mind—her fear of Defendant” was a “proper,
noncharacter purpose”). Recently, our supreme court held in a
child sex abuse case that rule 404(b) evidence was admissible
where the evidence “presented a narrative of relevance to the
prosecution’s case—to demonstrating [a defendant’s] position of
power in the home, to explaining why he had such easy access to
[a victim], and to suggesting why [a victim] may have waited to
come 	forward 	with 	accusations 	against 	[the 	defendant].”
Thornton, 2017 UT 9, ¶ 57.
¶15 	These holdings support the purpose for which the 404(b)
evidence was admitted in this case—to show Victim’s state of
mind as to why she did not try to escape or quickly report the
Kidnapping Incident. After the trial court initially excluded the
other-acts 	evidence, 	Barney’s 	counsel 	raised 	doubts 	about
Victim’s allegations by highlighting her reluctance to escape and
her delay in reporting the Kidnapping Incident to the police. The
Vehicular 	Assault 	Incident 	demonstrates 	an 	instance 	where
Victim tried to resist Barney’s attempt to convince her to ride in
his truck and was met with escalated violence, explaining why
Victim was unwilling to resist the Kidnapping Incident. The
Strangulation Incident helps reveal why Victim would not want
to run from or avoid Barney because avoiding him in the past
had resulted in him violently attacking her. The Protective Order
Incident 	helps 	show 	why 	Victim 	waited 	to 	report 	the
Kidnapping Incident because Barney had previously ignored
protective intervention. The Moving Vehicle Incident illustrates
Barney’s continued violence toward Victim, explaining why she
was afraid to report the Kidnapping Incident right away. Thus,
as 	in 	Bates, 	Harter, 	and 	Thornton, 	the 	other-acts 	evidence

State v. Barney
20160620-CA 	7 	2018 UT App 159
plausibly 	goes 	to 	the 	avowed 	noncharacter 	purpose 	of
explaining Victim’s state of mind and why she acted the way she
did.
¶16 	We 	therefore 	conclude 	that 	the 	Vehicular 	Assault,
Strangulation, Protective Order, and Moving Vehicle Incidents
were 	admitted 	for 	an 	appropriate 	noncharacter 	purpose.2
Specifically, 	we 	conclude 	that 	the 	other-acts 	evidence 	was
2. 	Barney 	takes 	issue 	with 	the 	fact 	that 	the 	Moving
Vehicle Incident occurred after the Kidnapping Incident for
which he was charged. It is true that rule 404(b) evidence is
often described as evidence of “prior acts.” See, e.g., State v.
Lopez, 	2018 	UT 	5, 	¶ 	38, 	417 	P.3d 	116 	(“We 	recognize 	an
exception to that rule where prior acts are relevant, offered for a
genuine, noncharacter purpose, and not unduly prejudicial.”
(cleaned up)). Rule 404(b) itself, however, makes no reference
to “prior” crimes, wrongs, or acts, but refers only to “other”
crimes, wrongs, or acts. Utah R. Evid. 404(b). Many courts
have 	recognized 	that 	other 	crimes, 	wrongs, 	or 	acts can 	be
relevant, 	even 	if 	those 	acts 	occurred 	after 	the 	charged
conduct. See United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir.
1995) (noting that the principles governing rule 404(b) other-
acts 	evidence 	“are 	the 	same 	whether 	the 	conduct 	occurs
before or after the offense charged” (cleaned up)); see also Ashe v.
Jones, No. 98-1324, 2000 WL 263342, at *5 (6th Cir. Feb. 29, 2000);
United 	States 	v. 	Morsley, 	64 	F.3d 	907, 	911 	(4th 	Cir. 	1995);
United States v. Brown, 923 F.2d 109, 111 (8th Cir. 1991); Michigan
v. Dreyer, 442 N.W.2d 764, 765 (Mich. Ct. App. 1989); Washington
v. Brown, 940 P.2d 546, 576 (Wash. 1997) (en banc); Washington
v. Stuivenga, No. 52024-5-I, 2005 WL 487551, at *1 (Wash. Ct.
App. Feb. 22, 2005) (per curiam). Here, the Moving Vehicle
Incident 	occurred 	before 	Victim 	reported 	the 	Kidnapping
Incident and was relevant to explain why Victim waited so long
to report the crime.

State v. Barney
20160620-CA 	8 	2018 UT App 159
properly admitted for the purpose of showing Victim’s state of
mind.3
II. Relevance
¶17 	Having 	determined 	that 	the 	other-acts 	evidence 	was
admitted for a proper noncharacter purpose, we now examine
Barney’s challenge to the relevance of that evidence. “Evidence
is relevant if . . . it has any tendency to make a fact more or less
probable than it would be without the evidence” and “the fact is
of consequence in determining the action.” Utah R. Evid. 401.
“Irrelevant evidence is not admissible.” Id. R. 402. “The standard
for determining the relevancy of the evidence is very low, and
even evidence with the slightest probative value is relevant.”
State v. Smedley, 2003 UT App 79, ¶ 15, 67 P.3d 1005 (cleaned up).
¶18 	The 	Vehicular 	Assault, 	Strangulation, 	Protective
Order, 	and 	Moving 	Vehicle 	Incidents 	were 	relevant 	to
show Victim’s state of mind and why she did not flee when
she 	had 	the 	chance 	or 	report 	the 	incident 	immediately.
Barney’s defense counsel questioned Victim on why she did
not run, why she did not try to get help, and why she did
not 	immediately 	report 	the 	incident. 	Thus, 	Barney
brought 	Victim’s 	conduct 	during 	and 	after 	the 	kidnapping
under 	scrutiny. 	Victim 	answered 	those 	questions 	by
responding that she believed something bad would happen
if 	she 	tried 	to 	escape 	or 	if 	she 	reported 	the 	kidnapping.
Because these four instances of other-acts tend to make it more
probable that she believed something bad would happen if she
3. Because we conclude that the evidence was properly admitted
for the purpose of showing Victim’s state of mind, we do not
analyze 	the 	court’s 	decision 	to 	allow 	the 	Moving 	Vehicle
Incident for the purpose of showing Barney’s modus operandi.
See State v. Holbert, 2002 UT App 426, ¶ 34 n.5, 61 P.3d 291.

State v. Barney
20160620-CA 	9 	2018 UT App 159
tried to escape or if she reported the crime, the evidence is
relevant.
¶19 	We thus see no abuse of discretion in the trial court’s
conclusion that the other-acts evidence is relevant.
III. Prejudice
¶20 	Finally, we examine Barney’s contention that the other-
acts evidence was unduly prejudicial under rule 403 of the Utah
Rules of Evidence.4 That rule states that “[t]he 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.” Utah R. Evid. 403. “Unfair prejudice results only
where the evidence has an undue tendency to suggest decision
upon an improper basis.” State v. Miranda, 2017 UT App 203,
¶ 38, 407 P.3d 1033 (cleaned up).
¶21 	Evidence 	of 	the 	Vehicular 	Assault, 	Strangulation,
Protective Order, and Moving Vehicle Incidents was highly
probative 	of 	Victim’s 	state 	of 	mind 	and 	ultimately 	her
motivation 	for 	not 	running 	from 	Barney 	or 	immediately
reporting the Kidnapping Incident. The jury may well have
questioned Victim’s apparent hesitance to escape or her delay in
4. Appellant argues in his brief: “Although strict application of
[the Shickles] factors is no longer required under Verde and
Thornton, they are useful to ensure that the unfair prejudice does
not outweigh the probative value of prior-bad-act evidence.”
Tethering the analysis as Barney suggests may be error. Recently
our supreme court stated: “It is always error . . . for a court to
center 	its analysis on 	the 	Shickles 	factors, 	to consider 	itself
obligated to use a particular factor or factors, or to rely inflexibly
upon each Shickles factor.” State v. Ring, 2018 UT 19, ¶ 23.

State v. Barney
20160620-CA 	10 	2018 UT App 159
reporting the crime. Because her fear of Barney was the primary
reason for her delay in reporting, the other-acts evidence carried
high probative value. To be sure, the presentation of the other-
acts evidence carries with it some prejudicial effect. However,
the danger that the evidence of these other acts would unfairly
prejudice Barney was ultimately mitigated by other factors.
¶22 	First, the Vehicle Assault, Strangulation, and Protective
Order Incidents were “distinct from the crime he was charged
with,” mitigating any risk of prejudice. See State v. Thornton, 2017
UT 9, ¶ 63, 391 P.3d 1016. The similarity between charged
conduct and the Moving Vehicle Incident potentially increases
the danger of the jury conflating the incidents; however, the
protracted nature of the charged conduct—where Barney held
Victim for an entire evening while stranded on a rural road—is
ultimately distinct enough that any danger of confusion over
what evidence applied to what incident is minimal.
¶23 	Second, the acts for which Defendant was charged—
driving erratically while holding Victim’s head against the center
console 	and 	punching 	and 	kneeing 	her 	in 	the 	face,
driving Victim to a remote area where the truck ran out of gas
and 	threatening 	her 	with 	a 	knife, 	promising 	painful 	and
violent 	death 	for several 	hours—were 	more 	egregious than
the 	other-acts 	evidence, 	and 	thus 	the 	jury 	would 	not
likely 	improperly 	base 	its 	decision 	on 	a 	desire 	to
punish 	Defendant 	for 	the 	uncharged 	conduct. 	See 	State 	v.
Reece, 2015 UT 45, ¶ 71, 349 P.3d 712 (explaining that the
conduct that a defendant confessed to was more severe than
the 	other-acts 	evidence 	admitted 	at 	trial, 	which 	weighed
against concluding that the defendant was unduly prejudiced).5
5. The court in Reece examined undue prejudice under the
standard of “overmastering hostility,” see State v. Reece, 2015 UT
(continued…)

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20160620-CA 	11 	2018 UT App 159
¶24 	Third, 	the 	trial 	court 	provided 	a 	limiting 	instruction
prohibiting the jury from convicting Barney based on the other-
acts evidence. This instruction further mitigated the risk of any
unfair prejudice. See State v. Trujillo, 2017 UT App 116, ¶ 22, 400
P.3d 1213.
¶25 	Under these circumstances, we conclude that the trial
court 	was 	well 	within 	its 	discretion 	in 	deciding 	that 	the
probative 	value 	of 	this 	evidence 	was 	not 	substantially
outweighed by the risk of unfair prejudice.
CONCLUSION
¶26 	The trial court did not err in admitting the other-acts
evidence. The evidence was admitted for a proper noncharacter
purpose, was relevant, and was not unduly prejudicial.
¶27 	Affirmed.
(…continued)
45, ¶ 71, 349 P.3d 712, which has since been renounced by the
Utah Supreme Court, see State v. Cuttler, 2015 UT 95, ¶ 20, 367
P.3d 981. We rely on Reece to demonstrate only that the severity
of the charged conduct, weighed against the severity of the
other-acts 	evidence, 	is 	an 	appropriate 	consideration 	when
analyzing undue prejudice under rule 403. We do not rely on the
“overmastering hostility” standard applied in Reece.