State v. Lewis

2024 UT App 96

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellant,
v.
KEVIN LEWIS,
Appellee.

Opinion
No. 20210661-CA
Filed July 11, 2024

First District Court, Logan Department
The Honorable Angela Fonnesbeck
No. 191101288

Sean D. Reyes and Jeffrey D. Mann,
Attorneys for Appellant
Emily Adams, Freyja Johnson, and
Melissa Jo Townsend, Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGE AMY J. OLIVER concurred. JUDGE RYAN D. TENNEY
dissented, with opinion.

ORME, Judge:

¶1 The State charged Kevin Lewis with one count of rape,
alleging that some thirteen years earlier he had sex with his
then-fiancée (now ex-wife), Jane, 1 while she slept. Prior to filing
charges, the prosecutor and law enforcement arranged for Jane to
discuss the underlying allegations with Lewis in a recorded
phone call. Because the conversation would violate a protective
order Jane had obtained against Lewis, the county attorney

1. A pseudonym.
State v. Lewis

committed beforehand not to charge Lewis for the protective
order violation.

¶2 The recorded conversation was the impetus for the charges
against Lewis, and he subsequently moved the district court to
suppress the recording of the phone call. The court granted his
motion on three grounds, including under rule 403 of the Utah
Rules of Evidence. Shortly afterward, the State dismissed its case
against Lewis and filed the current appeal challenging the court’s
suppression order. Because we conclude the district court did not
exceed its discretion in suppressing the recording under rule 403,
we affirm.

BACKGROUND

¶3 Lewis and Jane began dating in 2005. According to Jane,
they engaged in consensual sex at the beginning of their
relationship but decided in late 2005 to abstain from sex for a year
so that they could be married in a religious ceremony. They
married in 2007 but divorced just short of ten years later.

¶4 In 2016, a few months before the divorce was finalized,
Jane sought, and the district court 2 granted, a protective order
against Lewis. 3 The protective order prohibited Lewis from,
among other things, contacting or “communicat[ing] in any way”
either directly or indirectly with Jane “except [for] civil written
communication including email & text messages regarding [their]

2. The judge who granted the protective order is not the same
judge who presided over the criminal proceedings in this case.

3. The record does not reveal the basis for the district court’s grant
of the protective order against Lewis. But the record does show
that Jane at some point accused Lewis of domestic violence,
although the allegation went uncharged.

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State v. Lewis

minor children.” The protective order was still in place at the time
police investigated and the State charged Lewis in the criminal
matter at issue here.

The Allegations

¶5 In 2019, Jane reported to police that Lewis had raped her in
her sleep thirteen years earlier when they were engaged. At the
subsequent preliminary hearing, Jane testified that she had
difficulty sleeping and, on an almost daily basis, she took
over-the-counter sleep aids that made her “very drowsy” and
helped her reach “heavy or deep” sleep. She stated that back in
2006, Lewis would also help her fall asleep by comforting her and
making her “feel like it was okay to go to sleep.” Lewis would
typically do so either by lying next to her on top of the covers
while she was underneath the covers or by kneeling beside the
bed. Jane stated that they had agreed beforehand that Lewis was
to go home after she fell asleep.

¶6 Jane alleged that during this time, she began having
“dreamlike memories” and “fragmented recollections” of Lewis
“being pressed up against [her] underneath the covers, pulling
[her] pants down or pulling his pants up, getting out of bed and
straightening the covers.” Although Jane was not sure how many
times she had such memories, she stated that it was “more than
once.” She also testified Lewis became “really upset” when she
once mentioned these memories to him, and he told her she “must
have dreamed that.” Jane stated that his reaction caused her to
“feel really terrible” about herself and to question her “frame of
mind in thinking that he would do something like that.”

¶7 Jane testified that years later, during their marriage, Lewis
sought counseling for pornography and sex addiction. She
alleged that in 2015, as part of the twelve-step recovery process,
he shared with her “a list of his moral inventory wrongdoings,”
including that when they were engaged, he had had sex with her

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while she was sleeping. He did not provide her with any more
details beyond that disclosure. Jane stated that this disclosure
contributed to their divorce a year later. When asked why she
waited until 2019 to report these allegations to the police, Jane
responded that she and Lewis were working on issues in their
marriage at the time and that she was concerned for her and her
children’s safety. She further explained that after the divorce was
finalized in 2016, she still had safety concerns and that “it took
seeing a . . . therapist to be able to even face the trauma of what
[she] had experienced.”

The Recorded Phone Call

¶8 After reporting these allegations to the police, Jane agreed
to aid them in their investigation by participating in a recorded
phone call with Lewis. Because the protective order allowing only
written communications regarding their minor children was still
in place, the county attorney “granted permission for a
confrontation phone call to occur” by confirming with the police
that no charges would be brought against Lewis for violating the
protective order when he spoke with Jane over the phone.

¶9 In September 2019, Jane called Lewis from the police
station. The phone call lasted a little over 19 minutes. When Lewis
answered, Jane stated, “Hi, Kevin. I was just wondering if I could
get you to listen on the phone to me for a little bit? I know I’m
taking a chance calling you, but I just need to talk to you for a few
minutes.” Lewis responded, “Sure.” What followed was a brief
discussion about their children, after which Jane stated that the
reason she wanted to speak with him was she thought “that things
would be a lot easier on the kids if [they] were able to get along
and talk more,” and she asked whether she could speak to him
“about a couple of things” she was “trying to work through so
that” they could “move past some things.” Lewis answered,
“Okay.”

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State v. Lewis

¶10 Jane then stated that she was “having a really hard time”
accepting the fact that during the time they were supposed to be
abstaining from sex, he “would have sex with” her while she “was
asleep.” She said she felt guilty because they had nonetheless
married in a religious ceremony, and she asked whether he felt
the same. Lewis answered, “That is stuff I’ve worked through for
several years. So for me . . . I feel like it’s been dealt with and taken
care of, addressed properly. But not with you, I guess.” As the
conversation continued, the following was said:

[Jane]: . . . . I’m just really struggling with what you
did to me.

[Lewis]: Well, I am sorry.

[Jane]: Why did you think it was okay to do that to
me while I was asleep?

[Lewis]: I don’t recall the thinking that I was having
back then, but I do know that those thoughts, those
patterns were wrong, and that’s part of what I’ve
gone through to fix in my life and put in my past.

[Jane]: I understand that it’s in the past and it’s
something that you’ve worked through. It’s just
something that I’m still suffering with and hurting
from. And so—

[Lewis]: Well, like I said, I’m sorry. I’ve done a lot of
wrong things and a lot of bad things. And frankly
there’s nothing that I can do that will, I don’t know,
provide any sort of restitution. That ship has sailed
long ago for us.

¶11 Jane then asked Lewis to give his “perspective” on what
happened. Lewis replied, “I am not in a position to give you any
of my perspective on it. I’m sorry.” Jane then asked whether it was

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something he had sought counsel from religious leaders
regarding, and Lewis responded, “Yes.” Jane then said she still
did not understand why he thought that what he did was “okay,”
to which Lewis responded, “I haven’t said I thought it was okay.
I said it was wrong and I’m sorry.” When Jane countered that
speaking to her about it was also part of the process of repentance,
Lewis said, “technically this conversation shouldn’t be happening
because it’s not about the kids.” Jane then said, “I know I’m taking
a really big risk talking to you,” at which point Lewis interrupted
her stating, “I’m the one taking the risk. Because you could at any
moment call the police and say that we had this conversation. And
it makes me extremely uncomfortable that you have that leverage
against me when it was completely uncalled for.”

¶12 Jane reassured Lewis that she would not report the
conversation to the police and stated that the protective order
“applies to me just as much as it applies to you.” 4 Jane continued
to press him further, stating that she was “trying to get past this”
for their children’s benefit. She asked him, “[D]o you remember
when you were going to your self inventory and you shared with
me about having sex with me while I was asleep?” Lewis’s
response is unclear. 5 Jane also stated that she had been going to
therapy and was trying to talk to him about it so that she could
“have a chance to heal and move on.” Lewis then stated, “I don’t

4. This statement was not accurate. The protective order
prohibited Lewis from contacting or communicating with Jane in
any manner other than “civil written communication including
email & text messages” pertaining to discussion of their children.
The order did not prohibit Jane from contacting or
communicating with Lewis.

5. The transcript of the recording has Lewis’s response as
“Uh-huh.” But in listening to the recording, his response sounds
more akin to “Mmmhmm,” although it is not entirely clear due to
background noise and the fact that he says it rather softly.

20210661-CA 6 2024 UT App 96
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know if there’s anything you’re expecting me to say, but I don’t
have much to say about the matter.”

¶13 Jane then directly asked him, “How did you keep me from
knowing?” Lewis answered, “Not sure. It’s part of the lies and the
secrecy of the addiction, I guess.” Jane then asked what would
have happened if she had become pregnant and whether he had
used contraception. Lewis answered that “[n]othing was used”
and with further prompting stated that he never ejaculated inside
her.

¶14 Jane asked whether he loved her at the time. After Lewis
confirmed that he did, Jane asked, “I’m just trying to reconcile if
you loved me why you would rape me?” Lewis answered, “I
didn’t view it as that.” He further stated, “At the time I’m not
entirely certain I even thought about it. A lot of times I’d ask you
if you wanted it and you’d mumble yes.” He also said he could
not remember ever not asking her for permission but that she was
“[p]ossibly” asleep. Jane then pressed him about not being able to
give consent while asleep. At this point Lewis stated, “I’m not
comfortable anymore with how this conversation has been going.
It’s not about the kids and it’s too risky for me.” They then said
their goodbyes, and the phone call ended.

¶15 That same day, Lewis sent Jane an email stating, “I don’t
mind talking more if you desire, but the [protective order] must
go in order for me to feel more at ease talking about anything
other than the kids. I’ll leave that entirely up to you though. No
pressure.”

¶16 Not long after the phone call, law enforcement contacted
Lewis to arrange for an interview, but he said he would not agree
to an interview without his attorney being present. No interview
was scheduled. Lewis’s attorney indicated that Lewis would
prepare a statement but later stated that they would not be issuing
a statement. In December 2019, the State charged Lewis with one

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count of rape. At the preliminary hearing, Jane testified as
summarized above, and the recording of the phone call was
played. The district court bound Lewis over for trial.

The Motion to Suppress and the District Court’s Ruling

¶17 Lewis moved to suppress the recording of the phone call.
In relevant part, he argued that the recording should be
suppressed under the exclusionary rule because it was “the
product of unlawful law enforcement activity.” Specifically, he
asserted that the State, the police, and Jane “engaged in what
amounts to a criminal conspiracy” by inducing him to violate the
protective order. He also argued that the recording should be
excluded under rule 403 of the Utah Rules of Evidence because
his answers were ambiguous and “[f]earing a protective order
violation, he could not adamantly deny [Jane’s] accusations as he
would if he were able to speak freely.” And in a supplemental
memorandum, Lewis additionally argued the conduct by which
the recording was obtained shocked the conscience because the
purpose of the call “was to induce [him] into making
incriminating statements without him knowing that he was being
recorded and without the assistance of counsel, all while the state
actors knew that the protective order would limit [his]
responses.”

¶18 The State opposed the motion, arguing—among other
things—that the recording was “lawfully obtained” and that
Lewis’s criminal conspiracy accusation was “absolutely absurd”
given that the county attorney had committed not to press charges
for the protective order violation and no such charges had ever
been filed. Regarding rule 403, the State contended that the
probative value of Lewis’s statements was “extremely high” and
that it was not substantially outweighed by any risk of unfair
prejudice. The State also argued that “facilitat[ing] a recorded
phone call . . . while there was a protective order in place” after

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the county attorney “essentially granted immunity” to Lewis did
not rise to the level of shocking the conscience.

¶19 The district court agreed with Lewis’s arguments and
suppressed the recording on three grounds. First, following a
discussion of the totality of the circumstances, the court held that
the statements Lewis made during the phone call “were not made
freely, voluntarily, and without compulsion or inducement of any
sort.” In this context, the court stated that the conduct in obtaining
the recording was “so offensive to a civilized system of justice that
the Court will not condone the techniques by allowing their fruits
to be used as evidence against [Lewis] during a criminal trial.”

¶20 Second, the court found “that the actions of law
enforcement and its agent to obtain the recorded phone call shock
the judicial conscience.” In so ruling, the court opined that their
actions were deliberate and that “[w]hat is most egregious is that
each of the actors knew that the presence of the Protective Order
prohibited [Lewis] from fully and confidently responding to and
refuting [Jane’s] many leading questions and confrontational
assertions.” The court also found that their actions were arbitrary
and unrestrained—arbitrary because other investigative
techniques, such as removing the protective order or having a
detective interview Lewis, were available, and unrestrained
because the “protective order was meant to restrain the very type
of conversation that the actors sought to entrap [Lewis] into
participating” in. The court further found that the conduct met
“the high level of outrageousness for a number of reasons.”
Among other things, the court noted that “[o]ur judicial system
depends on its order being enforced,” and the court rhetorically
asked, “What is the point of the Court issuing any order if law
enforcement will only respect or enforce it at their convenience,
when and if they see fit, or purposefully cause its violation?”
Finally, the court found that Lewis was harmed by the actions.

20210661-CA 9 2024 UT App 96
State v. Lewis

¶21 Third, and most relevant given our resolution of this
appeal, the court ruled that the recording should be excluded
under rule 403. The court found that Lewis’s statements during
the phone call had “little probative value” for the following
reasons:

• Lewis “appear[ed] hesitant to continue answering [Jane’s]
questions and accusation,” and he brought up the
protective order that prohibited him from speaking with
her.

• Lewis’s statements were “short, brief, and in response to
the leading questions asked and emotionally charged
assertions made by” Jane.

• Some of Lewis’s statements “wherein he discusses his
struggle with sex addiction and admits to having sexual
intercourse with” Jane were ambiguous. But these facts
were already undisputed, and Lewis expressly denied
having sex without Jane’s consent. Accordingly, the
“information [was] already before the Court and could
potentially be provided to a jury without the recorded
phone call.”

¶22 The court also ruled that the risk of unfair prejudice was
“substantial” because “given the egregiously unfair nature of the
investigative techniques used to obtain the recorded phone call,
[Lewis], by law, was not at liberty to fully and confidently
respond to and refute the barrage of leading questions asked and
confrontational assertions made by” Jane. The court also found
that the risk of the jury being misled was “substantial” because
the ambiguity of some of Lewis’s statements could cause the jury
“to believe that [he] is knowingly and freely admitting to
participating in sexual intercourse with [Jane] without her consent
rather than merely admitting to participating in consensual sexual
intercourse with” her. Lastly, the court found that there was a

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State v. Lewis

“substantial” risk the jury would confuse the issue of
nonconsensual and consensual intercourse due to the ambiguity
of some of Lewis’s statements “combined with the nature of
[Jane’s] accusations and the unique sexual history of the parties.”
Accordingly, the court ruled that those three risks substantially
outweighed the recording’s low probative value.

¶23 Following the district court’s suppression order, the court
dismissed the criminal case against Lewis on the State’s motion
because the prosecution’s case was “substantially impaired” by
the suppression of the recording. The State timely appealed.

ISSUE AND STANDARD OF REVIEW

¶24 The State challenges the district court’s decision to exclude
the recorded phone call under rule 403 of the Utah Rules of
Evidence. 6 We review a district court’s ruling on the admissibility
of evidence under rule 403 for an abuse of discretion. State v.
Beverly, 2018 UT 60, ¶ 23, 435 P.3d 160. Under this standard, a
district court has “freedom to make decisions which appellate
judges might not make themselves ab initio,” abusing its
discretion only if its decision “was beyond the limits of
reasonableness.” State v. Boyd, 2001 UT 30, ¶ 40, 25 P.3d 985
(quotation simplified).

6. The State also challenges the other two grounds on which the
district court based its decision to exclude the phone call, namely,
that Lewis’s statements were involuntary and that police conduct
in obtaining his statements through a phone call that violated the
protective order shocked the judicial conscience. Because we
affirm the court’s decision to exclude the recorded phone call
under rule 403, we have no need to reach these other arguments.

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State v. Lewis

ANALYSIS

¶25 In determining the admissibility of evidence under rule 403
of the Utah Rules of Evidence, “[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.” This
analysis generally consists of two steps. State v. Nunez-Vasquez,
2020 UT App 98, ¶ 58, 468 P.3d 585, cert. denied, 474 P.3d 945 (Utah
2020).

¶26 Under the first step, the district court assesses the probative
value of the challenged evidence. Id. “The probative value of
evidence is judged by the strength of the evidence and its ability
to make the existence of a consequential fact either more or less
probable and the proponent’s need for the evidence.”
Anderson-Wallace v. Rusk, 2021 UT App 10, ¶ 19, 482 P.3d 822
(quotation simplified), cert. denied, 496 P.3d 716 (Utah 2021). It is
also “appropriate to consider the availability of other, less
prejudicial, means of proof.” State v. Hood, 2018 UT App 236, ¶ 50,
438 P.3d 54. “If an evidentiary alternative has equal or greater
probative value and poses a lower risk of unfair prejudice, the trial
court should discount the probative value of the disputed
evidence and exclude it if the risk of unfair prejudice substantially
outweighs its discounted probative value.” Id. (quotation
simplified). But “if the relative need for the evidence is critical, the
court is less likely to exclude it under rule 403.” Nunez-Vasquez,
2020 UT App 98, ¶ 58 (quotation simplified).

¶27 Under the second step, trial courts assess the danger posed
by the listed countervailing factors, including, as relevant here,
unfair prejudice, confusing the issues, and misleading the jury. Id.
“Unfair prejudice within the context of rule 403 means an undue
tendency to suggest decision on an improper basis.”
Anderson-Wallace, 2021 UT App 10, ¶ 18 (quotation simplified).

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State v. Lewis

Because the probative value of the evidence must be
“substantially outweighed” by the risk of any of the enumerated
countervailing factors, courts “indulge a presumption in favor of
admissibility” when engaging in a rule 403 balancing test. State v.
Green, 2023 UT 10, ¶ 78, 532 P.3d 930 (quotation simplified).

¶28 On appellate review, as previously noted, “we allow trial
courts considerable freedom in applying rule 403 to the facts,
freedom to make decisions which appellate judges might not
make themselves ab initio but will not reverse.” State v. Boyd, 2001
UT 30, ¶ 40, 25 P.3d 985 (quotation simplified). “The trial court is
granted broad discretion when weighing the probative value of
evidence against the reasons for exclusion enumerated in rule
403.” Francis v. National DME, 2015 UT App 119, ¶ 34, 350 P.3d 615
(quotation simplified). Indeed, we will affirm cases in which “we
can imagine two equally reasonable trial court judges reaching
different conclusions about the admissibility of [the] evidence
under rule 403 in the exercise of their discretion.” State v. Burke,
2011 UT App 168, ¶ 42, 256 P.3d 1102, cert. denied, 263 P.3d 390
(Utah 2011). See Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of
Water & Power, 2015 UT App 261, ¶¶ 21, 24, 361 P.3d 703 (Orme,
J., concurring, joined by Toomey, J.) (stating that “standards of
review really do matter” and that under the abuse of discretion
standard, we must affirm cases even when “we think the trial
judge made the wrong call” so long as the court’s decision is
“within the broad range of discretion entrusted to” it), cert. denied,
369 P.3d 451 (Utah 2016). We will reverse a district court’s rule 403
decision only if “it was beyond the limits of reasonableness.”
Boyd, 2001 UT 30, ¶ 40 (quotation simplified).

¶29 Here, the district court found that the phone recording had
“little probative value” because Lewis appeared “hesitant”; his
answers were “short, brief,” and at times “ambiguous”; and some
of the information contained in the recording was “already before
the Court and could potentially be provided to a jury without the
recorded phone call.” Next, it determined that the recording’s

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probative value was substantially outweighed by the risk of
(1) unfair prejudice, (2) confusing the issues, and (3) misleading
the jury. Concerning unfair prejudice, the court stated that “given
the egregiously unfair nature of the investigative techniques used
to obtain the recorded phone call, [Lewis], by law, was not at
liberty to fully and confidently respond to and refute the barrage
of leading questions asked and confrontational assertions made
by” Jane. Because we cannot say that the court’s balancing of the
recording’s probative value against these dangers was “beyond
the limits of reasonableness,” id. (quotation simplified), we affirm
the court’s decision to exclude the recording under rule 403, as
hereafter explained.

¶30 In challenging the court’s assessment of probative value,
the State makes the following arguments:

• Some of the statements Lewis made during the phone call
are “extremely probative” of whether he had sex with Jane
without her consent. Specifically, the State points to
Lewis’s repeated apologies and admissions that what he
did was “wrong.” And although Lewis denied ever having
sex with Jane without first obtaining her consent, he also
admitted to “[p]ossibly” having sex with her while she was
asleep.

• The recording was strong evidence because it contained
Lewis’s own words, and a “defendant’s own confession is
probably the most probative and damaging evidence that
can be admitted against him.” Arizona v. Fulminante, 499
U.S. 279, 296 (1991) (quotation simplified).

• The State’s need for the recording was high because the
only other evidence it had was Jane’s testimony of Lewis’s
initial, undetailed admission to her.

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• The brief nature of Lewis’s responses does not detract from
their probative value. “A simple, brief ‘yes’ to a clear
question about a defendant’s conduct may be more
probative than any other piece of evidence.”

• Lewis’s statements were “clear responses to clear
questions” and were not ambiguous.

And in challenging the court’s undue prejudice determination,
the State contends that the district court’s focus on “the nature of
the interrogation” was irrelevant under rule 403 “because it
would not lead the jury to decide the issue of whether Lewis
raped Jane.”

¶31 Although we would not have necessarily reached the same
result if in the district court’s place, we are not persuaded that the
court’s ruling constituted an abuse of discretion for several
reasons. First, concerning Lewis’s repeated apologies and
admissions of doing something “wrong” to which the State
points, those statements were made in the context of Jane asking
him whether he felt guilty about marrying in a religious ceremony
that required abstinence from sex. Lewis made no such statements
when Jane began more directly discussing rape with him. Thus,
such statements that would typically be recognized as admissions
of guilt are more ambiguous given the context in which they were
made in this case. 7

7. Additionally, Lewis’s statement that he “[p]ossibly” had sex
with Jane while she was asleep is not the clear-cut proof of rape
the State contends. The State asserts that this statement is
“extremely probative of the central disputed issue—whether
[Lewis] had sex with Jane while she was asleep and therefore
without her consent.” The State thus appears to be arguing that to
obtain a conviction for rape, it had to prove only that Jane was
(continued…)

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¶32 Second, given the other avenues of gathering evidence
available to the State, it was not unreasonable for the district court
to accord less weight to the State’s need for the phone recording
when evaluating probative value. As discussed above, “if the
relative need for the evidence is critical, the court is less likely to
exclude it under rule 403.” State v. Nunez-Vasquez, 2020 UT App
98, ¶ 58, 468 P.3d 585 (quotation simplified), cert. denied, 474 P.3d
945 (Utah 2020). Here, the court found that some of the

asleep when Lewis had sex with her. But this is not correct. The
State would also have had to prove, at the very least, that Lewis
was reckless as to Jane’s nonconsent. That is, that he “was
subjectively aware of but consciously disregarded the risk” that
Jane did not consent. State v. Raheem, 2024 UT App 29, ¶ 24, 546
P.3d 331 (quotation simplified), cert. denied, June 21, 2024 (No.
20240489). See State v. Barela, 2015 UT 22, ¶ 26, 349 P.3d 676 (“The
crime of rape requires proof not only that a defendant knowingly,
intentionally, or recklessly had sexual intercourse, but also that he
had the requisite mens rea as to the victim’s nonconsent.”)
(quotation simplified).
This does not mean that Lewis’s statement had no probative
value in proving that sexual intercourse took place while Jane
slept. A jury could reasonably find that Lewis was reckless if, after
receiving verbal consent, he realized that Jane had “[p]robably”
fallen asleep at some point during the act. On the other hand, the
statement is ambiguous as to when Lewis realized that she was
“[p]robably” asleep. It is possible he realized this only after the
sexual intercourse had ended. All of this is to say that although
certainly probative, the admission of the statement was not
necessarily a “slam dunk” for the State’s case—the State was still
required to prove the mens rea element of the crime, which would
have had its challenges. And, for reasons discussed in greater
detail below, particularly relating to reliability, it was not
unreasonable for the district court to minimize the probative
value of the statement.

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information contained in the recording was “already before the
Court and could potentially be provided to a jury without the
recorded phone call.” Additionally, albeit in the context of its
shocks-the-conscience ruling, the court stated that other
investigative techniques, such as removing the protective order or
interviewing Lewis, were available to the State. The former option
seems particularly feasible given Lewis’s email to Jane stating that
he was willing to talk more with her but that the protective order
would need to be lifted so that he could “feel more at ease talking
about anything other than the kids.” Had the police accepted
Lewis’s invitation to Jane and pursued that investigative route,
they would likely have obtained a second recording that would
not have been mired in all the legal infirmities attached to the
recording at issue here. Instead, other than unsuccessfully
attempting to interview Lewis after the phone call, the police
ended the investigation and the State filed charges. Thus, it was
not unreasonable for the district court to consider law
enforcement’s failure to pursue an avenue so readily available to
it when considering the State’s need for the evidence.

¶33 Third, given the unique circumstances of this case, the
reliability of Lewis’s statements is questionable, as the district
court found. Trial courts may assess the reliability of evidence as
part of their rule 403 balancing. 8 See State v. Fulton, 742 P.2d 1208,
1218 (Utah 1987) (stating that “Rule 403 can be employed” “to
ensure that the jury would not be exposed to unreliable

8. Trial courts typically undergo such a reliability analysis under
rule 403 when, among other things, eyewitness identification
testimony or child testimony are at issue. See, e.g., State v. Lujan,
2020 UT 5, ¶ 36, 459 P.3d 992; State v. Burke, 2011 UT App 168,
¶ 46, 256 P.3d 1102, cert. denied, 263 P.3d 390 (Utah 2011). As
discussed above, the unique circumstances in this case likewise
raise concerns, albeit on different grounds, as to the reliability of
Lewis’s statements made during the recorded phone call.

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State v. Lewis

testimony”); State v. Schreuder, 726 P.2d 1215, 1225 (Utah 1986)
(“The trial court must, as with any evidence, assess the inherent
reliability of the testimony, the relevance of the testimony, and
undertake a balancing test, particularly of prejudice versus
probativeness under Rule 403.”). Under rule 403, the reliability of
evidence affects both the probative value and unfair prejudice
assessments. See State v. Lujan, 2020 UT 5, ¶ 36, 459 P.3d 992
(stating that variables relating to the reliability of eyewitness
testimony “may be considered in assessing both the probative
value . . . and the possibility of it producing unfair prejudice”);
State v. Eldredge, 773 P.2d 29, 36 (Utah 1989) (stating that under
rule 403, “the question is whether the hearsay evidence was
sufficiently unreliable that it should have been obvious to the trial
judge that the testimony’s probativeness was substantially
outweighed by its potential for unfair prejudice”); State v. Wright,
2021 UT App 7, ¶ 42, 481 P.3d 479 (“[T]he reliability of an
eyewitness account determines both its probative value and the
possibility that its admission into evidence will result in unfair
prejudice.”), cert. denied, 496 P.3d 718 (Utah 2021).

¶34 Here, the district court was clearly concerned with the
manner in which the recording was obtained and the effect this
had on the substance and reliability of Lewis’s responses. 9 The
court stated that Lewis “was not at liberty to fully and confidently
respond to and refute the barrage of leading questions asked and
confrontational assertions made by” Jane. Lewis’s evident
hesitancy during the phone call and the shortness of his responses
supported the court’s concern that he felt constrained from fully
answering Jane’s questions due to the protective order. Indeed,

9. Indeed, the district court’s vehement disapproval of and
frustration with the active role law enforcement took in the
purposeful violation of the district court’s protective order is clear
in its analysis relating to all three rationales on which it
suppressed the recording.

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State v. Lewis

Lewis directly mentioned the protective order at several points
during the conversation. Under the protective order, Lewis was
limited to communicating with Jane only in written form
regarding their children. Lewis even stated at one point that Jane
had “leverage” over him because she “could at any moment call
the police” regarding the conversation they were having and this
made him “extremely uncomfortable.” He also twice referenced
the risk he was subjecting himself to by speaking with her.
Although the county attorney had committed not to prosecute
Lewis for violating the protective order, Lewis had no knowledge
of this fact at the time of the phone call.

¶35 Lewis thus found himself in a situation where, after he had
already violated the protective order by answering Jane’s phone
call and briefly discussing their children other than in writing,
Jane then began asking questions about what happened back in
2006. At that point, Lewis had already subjected himself to
possible prosecution and the person who could report him to law
enforcement was asking him pointed questions. For this reason, it
was reasonable for the district court to infer that Lewis opted to
appease Jane by giving brief, limited answers rather than to risk
angering her by offering a robust defense and full accounting of
his actions. In light of these unique circumstances, it was entirely
reasonable for the district court to minimize the recording’s
probative value and elevate its assessment of the danger of unfair
prejudice. 10

10. The State argues that “the nature of the interrogation has
nothing to do with rule 403 considerations because it would not
lead the jury to decide the issue of whether Lewis raped Jane” and
that “[i]t is not unfairly prejudicial for a defendant’s own
voluntary statements from a recorded confrontation call to be
used against him.” As discussed above, rather than the fairness of
the interrogation, the focus of a rule 403 analysis is on the
(continued…)

20210661-CA 19 2024 UT App 96
State v. Lewis

¶36 Fourth, the recording carried with it an additional risk of
unfair prejudice because it is not possible to present the recorded
phone call to the jury without the jury simultaneously finding out
about the protective order. Even if Lewis’s express references to
the protective order were redacted from the recording, it is
difficult to imagine how the defense could explain his guarded
comments, evident hesitancy, and motivation to placate Jane
without having to disclose the protective order. The protective
order, which was entered in 2016, is entirely irrelevant as to
whether Lewis raped Jane ten years earlier in 2006. On the other
hand, referencing the protective order carries a risk that the jury
would improperly consider Lewis’s later conduct that gave rise to
issuance of the protective order. See Woods v. Zeluff, 2007 UT App
84, ¶ 7, 158 P.3d 552 (stating that evidence is unfairly prejudicial
if it has “an undue tendency to suggest decision on an improper
basis, commonly but not necessarily an emotional one, such as
bias, sympathy, hatred, contempt, retribution or horror”)
(quotation simplified). Cf. State v. Meik, 2024 UT App 46, ¶ 48, 547
P.3d 878 (“Evidence of bad character or unrelated prior crimes is
prejudicial because of the tendency of a fact finder to convict the
accused because of bad character rather than because the accused
is shown to be guilty of the offenses charged.”) (quotation
simplified), petition for cert. filed, May 29, 2024 (No. 20240558).

¶37 For these reasons, we conclude that the district court did
not exceed the bounds of reasonableness when it determined that
the risk of, among other things, unfair prejudice substantially
outweighed the recording’s probative value. The court thus did

reliability of the statements and the interplay of probative value
and the danger of unfair prejudice. This is distinct from whether
the statements were voluntary under the Fifth and Fourteenth
Amendments to the United States Constitution. See State v.
Florreich, 2024 UT App 9, ¶¶ 31–32, 543 P.3d 795, cert. denied, 547
P.3d 828 (Utah 2024).

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State v. Lewis

not abuse its discretion in suppressing the recorded phone call
under rule 403.

CONCLUSION

¶38 Although other judges undertaking the same balancing
analysis could perhaps have reasonably reached the opposite
conclusion, for the foregoing reasons, the district court in this case
did not abuse its discretion when it suppressed the phone
recording under rule 403 of the Utah Rules of Evidence.

¶39 Affirmed.

TENNEY, Judge, dissenting:

¶40 The majority affirms the district court’s decision to
suppress Kevin Lewis’s recorded statements under rule 403.
Under that rule, a “court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of,”
among others, “unfair prejudice.” Utah R. Evid. 403.

¶41 I see this case very differently from the majority. As
explained below, I disagree with the majority’s assessments of
(A) the probative value of Lewis’s recorded statements, (B) the
danger of unfair prejudice, and (C) how to balance the two in this
case. I therefore respectfully dissent.

A. Probative Value

¶42 The district court concluded that Lewis’s recorded
statements have “little probative value,” and the majority has now
affirmed that conclusion. I wholly disagree.

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State v. Lewis

¶43 The starting place for any probative value inquiry should
be a determination of what it is, exactly, that the proponent of the
evidence must prove. Here, the State has charged Lewis with one
count of rape under Utah Code section 76-5-402. The “crime of
rape requires proof not only that a defendant ‘knowingly,
intentionally, or recklessly had sexual intercourse,’ but also that
he had the requisite mens rea as to the victim’s nonconsent.” State
v. Barela, 2015 UT 22, ¶ 26, 349 P.3d 676 (citation omitted). At the
preliminary hearing, the State asked the district court to bind
Lewis over under Utah Code section 76-5-406(2)(e). Under that
particular subsection, an act of sexual intercourse is
nonconsensual if “the actor knows the victim is unconscious,
unaware that the act is occurring, or is physically unable to resist.”
Id. I’m not aware of a Utah case that has specifically analyzed the
mens rea component of this subsection, but its language seems
plain enough: by requiring proof of what the actor “knows” at the
time of the intercourse, it appears that the State needs to satisfy
the knowing mens rea to successfully prosecute a defendant for
rape under this provision. 11

¶44 The knowing mens rea is defined by the Utah Code. Under
its terms, a “person engages in conduct”

[k]nowingly, or with knowledge, with respect to his
conduct or to circumstances surrounding his
conduct when he is aware of the nature of his
conduct or the existing circumstances. A person acts
knowingly, or with knowledge, with respect to a

11. The majority suggests that the lesser recklessness mens rea
might be enough. Maj. Op. ¶ 31 n.7. For the reasons I’ve just given,
I think the majority is incorrect on this. In any event, if
recklessness is enough, then the analysis I set forth below would
be even more applicable.

20210661-CA 22 2024 UT App 96
State v. Lewis

result of his conduct when he is aware that his
conduct is reasonably certain to cause the result.

Id. § 76-2-103(2). Applied to the statutory subsection in question,
it thus seems that to prove its case, the State must prove that Lewis
was “aware” that Jane was either “unconscious, unaware that the
act [was] occurring, or [was] physically unable to resist.” Id. § 76-
5-406(2)(e). And, as with any other mens rea question, proof of
Lewis’s knowledge would be “an inference that may be drawn by
the factfinder both from direct and from circumstantial evidence.”
State v. Taylor, 2023 UT App 133, ¶ 20, 539 P.3d 351 (quotation
simplified).

¶45 As discussed in the majority opinion, the State is seeking to
prove Lewis’s mental state through statements he made in a
recorded phone call with Jane, who was his ex-wife at the time of
the call. A recording of the call was played for the district court at
the preliminary hearing, and the audio and a transcript are both
in our record. The conversation itself lasted a little over 19
minutes, and the transcript is a little over 7 pages. At the outset of
the call, Jane and Lewis had a brief discussion about a few things
relating to their children, but Jane then turned the discussion
toward the subject of whether Lewis had previously had sexual
intercourse with her while she was sleeping. Jane and Lewis
discussed that subject for about five and a half pages of transcript.

¶46 There are any number of places in that discussion where
Lewis not only acknowledged that the two had sexual intercourse
(which is, of course, one of the elements of rape), but also where
he demonstrated his awareness that Jane was “unconscious,
unaware that the act [was] occurring, or [was] physically unable
to resist.” Utah Code § 76-5-406(2)(e).

¶47 I’ll start with the most direct acknowledgement: at one
point in the conversation, Jane asked Lewis, “[D]o you remember
when you were going to your self inventory and you shared with

20210661-CA 23 2024 UT App 96
State v. Lewis

me about having sex with me while I was asleep?” According to
the transcript, Lewis responded with an affirmative “Uh-huh.”
This reads to me like an admission that Lewis had previously told
Jane that he had “sex” with her while she was “asleep.” From this
exchange alone, I think this call has high probative value to the
question of whether Lewis was aware that Jane was unconscious
when he had sex with her. 12

¶48 And there was more. Elsewhere in the conversation, Lewis
made a number of other statements that either directly or
implicitly showed that he was aware that Jane was asleep or at
least not fully conscious when he had sex with her.

• In one moment, Jane asked if she “was asleep” when Lewis
had sex with her. Lewis responded: “Possibly.”

• There was also a series of noteworthy non-denials. At the
outset of the conversation, for example, Jane told Lewis
that she had been thinking about how he “would have sex

12. The majority thinks it’s “unclear” whether Lewis really did
offer an affirmative “Uh-huh” in response to this question. Maj.
Op. ¶ 12. Having listened to the audio, the majority believes it
“sounds more akin to ‘Mmmhmm.’” Maj. Op. ¶ 12 n.5.
But the transcriptionist heard and recorded it as an “Uh-
huh,” and even with the benefit of capable appellate counsel,
Lewis hasn’t argued on appeal that this was a transcription error
and that he actually said something like “Mmmhmm.” And for
whatever it’s worth, I’ve listened to the audio too, and it sounds
more like an affirmative “Uh-huh” to me. Moreover, as I’ll point
out shortly, the transcriptionist used this same “Uh-huh” to
transcribe another moment later in the conversation in which
Lewis was also trying to make an affirmative statement. Given the
state of our record and the arguments that we’ve been presented
with on appeal, I think this exchange is best understood as it has
been presented to us in the transcript.

20210661-CA 24 2024 UT App 96
State v. Lewis

with [her] while [she] was asleep,” and she then said she
was “having a really hard time” “get[ting] through that.”
In response, Lewis didn’t deny having told her that.
Instead, he said, “[t]hat is stuff that I’ve worked through
for several years” and “it’s been dealt with and taken care
of, addressed properly. But not with you, I guess.” When
Jane then asked Lewis why he thought “it was okay to do
that to [her] while [she] was asleep,” Lewis simply
acknowledged that “those thoughts, those patterns were
wrong, and that’s part of what [he’d] gone through to fix
in [his] life and put in [his] past.”

• At another point in the conversation, Jane said that she
didn’t “understand how [she] didn’t” become pregnant
and that she didn’t “understand where [he] came,” and she
then wondered whether she “missed that too.” By asking
these questions, Jane seems to have been suggesting that
she didn’t remember (and had thus been unaware of) when
or where Lewis ejaculated. In response, Lewis didn’t try
reminding her of any moment in which he thought she was
conscious when he ejaculated. Instead, he simply assured
her that while he didn’t use “protection or anything,” he
had “never” ejaculated inside her.

• There was an exchange toward the end of the conversation
in which Jane asked Lewis, “if you loved me why . . . would
[you] rape me?” In response, Lewis said that he “didn’t
view it as that.” Then, in an apparent attempt at justifying
what he had done, Lewis told Jane that “[a] lot of times” he
would ask her if she “wanted it” and that she would
“mumble yes” or offer “an uh-huh.” 13

13. The transcriptionist used the same “uh-huh” here that the
transcriptionist used earlier to reflect Lewis’s answer to the
(continued…)

20210661-CA 25 2024 UT App 96
State v. Lewis

Two things strike me about this particular exchange. First,
“[a] lot of times” is not “all of the time.” Thus, even under
Lewis’s justification, it seems that there were some
occasions in which he did not ask Jane for her consent. And
second, the broader context was that Jane was taking pills
that would put her into a deep sleep and Lewis (her fiancé)
was there to help her feel safe while she fell asleep. As a
result, if all that Jane could do in those substance-aided
moments was “mumble yes,” I think a jury could readily
see this as evidence that Jane wasn’t fully conscious (or,
perhaps instead, that she was unaware of what was
occurring) and that, because Lewis was clearly aware of the
pills she had taken and their effect on her, he would have
been aware of her lack of consciousness too.

• There were also several exchanges in which Lewis
expressed remorse for what he had done. At one point,
after Jane had already twice asked Lewis about him having
had sex with her while she was “asleep,” Jane told Lewis
that she was “still suffering with and hurting from” what
he had done. Lewis responded by acknowledging that he
had done a “lot of wrong things and a lot of bad things.”
There was another exchange in which Jane asked Lewis,
“How did you keep me from knowing?”—a question that
expressly contemplated a lack of consciousness on Jane’s
part. Lewis’s response to this pointed question was: “Not
sure. It’s part of the lies and the secrecy of the addiction, I
guess.” Given how Jane had started the discussion, Lewis’s
acknowledgments that he had done “wrong things” and
“bad things” and that his behavior involved “lies and . . .
secrecy” all stand in obvious tension with any assertion
that the two had actually had consensual sex while Jane
was conscious. And Lewis’s tacit acknowledgment that

question of whether he’d previously told Jane that he’d had “sex
with [her] while [she] was asleep.”

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State v. Lewis

Jane had been kept “from knowing” seems directly
indicative that Lewis knew that Jane didn’t know what was
happening—i.e., that she wasn’t conscious when he had
sex with her.

¶49 Viewed individually, each of these exchanges has obvious
probative value to the question of whether Lewis had the requisite
mens rea; viewed together, this is even more so. Based on the
statements themselves, I therefore believe that the probative value
side of the rule 403 balancing tilts heavily toward admitting
Lewis’s recorded statements.

¶50 As recognized by the majority, the probative value inquiry
also looks to the “proponent’s need for the evidence.” Anderson-
Wallace v. Rusk, 2021 UT App 10, ¶ 19, 482 P.3d 822 (quotation
simplified), cert. denied, 496 P.3d 716 (Utah 2021). The majority
believes that this weighs against admissibility. I disagree.

¶51 This is a he-said/she-said rape case. Because the sexual
intercourse occurred years earlier (and between two people who
knew each other well), there’s no physical evidence that could
corroborate the allegations—either of the fact of intercourse
generally, or of whether Jane had consented. And on both of these
questions, Jane’s potential testimony would be of limited value,
given that, by her own account, she was in drug-assisted sleep
when Lewis had sexual intercourse with her and now has only
fragmented memories of what occurred.

¶52 This is presumably why law enforcement went to the
trouble of facilitating the pretext call that resulted in this recorded
conversation. After all, without some statement from Lewis
acknowledging what had happened, the State would have little
evidence to prove Lewis’s mental state. As a result, the State has
a pronounced need for this evidence, and this part of the test thus
weighs heavily in favor of admissibility.

20210661-CA 27 2024 UT App 96
State v. Lewis

¶53 Despite all of the above, the majority sees several reasons
to affirm the district court’s conclusion that the recorded
statements lacked probative value. I find none of them to be
persuasive.

¶54 Let me first offer something of an overarching response to
many of the points raised by the majority. It’s true, as the majority
points out, that some of our rule 403 cases have allowed courts to
assess the reliability of the proposed evidence as part of the rule
403 balancing. Maj. Op. ¶ 33. And this makes sense—unreliable
evidence would be less probative. But even so, and within the
context of the rule 403 balancing, we’ve still also invoked the
familiar distinction between concerns that go to the evidence’s
weight and those that are so pronounced that they go to its
admissibility. See, e.g., State v. Anderson, 2020 UT App 135, ¶ 26,
475 P.3d 967; State v. Burke, 2011 UT App 168, ¶ 51, 256 P.3d 1102;
State v. Cosey, 873 P.2d 1177, 1182 (Utah Ct. App. 1994). In this
case, even if some of the concerns expressed by the majority might
undermine the evidence’s reliability in some small measure, I
don’t believe that any of the identified concerns undermine its
reliability so much that it should be deemed inadmissible.

¶55 Turning to the majority’s particular assertions, the majority
first echoes a series of smaller concerns that were raised by the
district court. For example, the majority points out that much of
what Lewis said was in response to leading questions. Maj. Op.
¶ 34. Fair enough, but I’m not sure why this would weaken the
probative value of Lewis’s responses so much that his responses
lack probative value. After all, leading questions are a staple of
trials, and yet juries rely on witnesses’ answers to leading
questions all the time. The majority also points out that some of
Lewis’s responses were “short[].” Maj. Op. ¶ 34. True, but some of
his responses were not particularly short. And even if short, they
still added details—during the conversation, Lewis volunteered
details about his therapy and his thought patterns, he tried
assuring Jane that she had been in no danger of getting pregnant

20210661-CA 28 2024 UT App 96
State v. Lewis

because he had ejaculated outside her, and he tried justifying
what he’d done by explaining how he’d asked for her consent
(and had received “mumbled” answers) during many (though not
all) of the times that he’d had sex with her. In any event, while a
fact-finder might perhaps have some wariness before accepting a
clipped answer to an isolated question or two, that’s not what
we’re considering here. What we’re considering is an extended
conversation that lasted 19 minutes, the bulk of which was spent
discussing these allegations. To the extent that some or even many
of Lewis’s answers were short, they were also repeated. I don’t
regard their brevity as being a meaningful basis to conclude that
Lewis’s answers lacked probative value.

¶56 The majority next suggests that Lewis’s “repeated
apologies” and admissions of having done something “wrong”
were narrowly tied to Jane’s questions about religious guilt. Maj.
Op. ¶ 31. At one point early in the exchange, Jane did ask Lewis
about his admission that he “would have sex with [her] while
[she] was asleep.” Before Lewis could respond, Jane continued
with a long thought, telling him that one of the things that
bothered her was that they “were supposed to be working
toward” being worthy for a religious wedding and that she felt
“guilt” about what had happened. When Lewis responded to all
this, he said, “Well, I am sorry.” Unlike the majority, I don’t see
any real basis for unbundling Jane’s concern about the fact that
Lewis had sex with her while she was asleep from her concern
about the potential religious implications, much less a basis for
concluding that Lewis was only apologizing for the latter and not
the former. (If that’s what Lewis meant, he certainly didn’t say so.)
And I also find even this proposed distinction potentially
damning anyway—by parsing out Jane’s question and Lewis’s
apology in this manner, the majority is apparently positing that
Lewis was only expressing remorse for violating Jane’s religious
scruples, but that he wasn’t apologizing in response to her
assertion that he’d had sex with her while she was asleep. If he

20210661-CA 29 2024 UT App 96
State v. Lewis

meant to limit his apology in this manner, I think a jury could
reasonably wonder why. In any event, as the conversation
continued, Jane kept asking questions about Lewis having had sex
with her while she was asleep (and she did so without any
continued religious add-ons). In response to one of those
questions, Lewis referred to his “lies and the secrecy,” thus again
demonstrating some acknowledgment of guilt for what she was
alleging had happened.

¶57 The majority also downplays the probative value of
Lewis’s admission that he “[p]ossibly” had sexual intercourse
with Jane while she was asleep. Maj. Op. ¶ 31 n.7. In the majority’s
view, Jane was perhaps conscious when the sexual intercourse
began but she then fell asleep before Lewis finished. See id. But
Lewis didn’t say anything like this in his response, so this
potential line-drawing and this defense is entirely of the
majority’s creation. Moreover, as I’ve pointed out, there was also
a different moment in the conversation in which Lewis responded
with an affirmative “Uh-huh” when Jane asked him if he’d told
her that he had “sex with [her] while [she] was asleep.” This, too,
seems fairly direct. And finally, the question at this stage is
whether the recorded call has probative value. Even with the
possibility of mid-sex sleep that’s now proposed by the majority,
I’m having a hard time seeing how Lewis’s admission that he
“[p]ossibly” had sex with Jane while she was asleep would not at
least show that he was aware of her condition—and, thus, that his
statements had probative value as to the question of his mental
state.

¶58 Finally, there’s the concern that really seems to be driving
the majority’s opinion: namely, the majority’s belief that Lewis’s
recorded statements were not reliable because Lewis knew that he
had a protective order hanging over his head. Maj. Op. ¶ 33–35.
On this, the majority first repeats (and thus seemingly accepts) the
district court’s conclusion that, because of the protective order,
Lewis was “not at liberty to fully and confidently respond to and

20210661-CA 30 2024 UT App 96
State v. Lewis

refute the barrage” of questions that Jane asked him. Maj. Op.
¶ 34. The majority then opines that once Lewis realized that he’d
“subjected himself to possible prosecution” for violating the
protective order, he now had to “appease” Jane by “giving brief,
limited answers” to her questions. Maj. Op. ¶ 35.

¶59 It’s clear enough from the transcript that Lewis thought
there might be a danger of prosecution for a protective order
violation—in two moments in the conversation, he mentioned the
“risk” that he thought he was taking by talking to Jane. But in light
of this expressed concern, I believe that the majority’s assessment
of the resulting incentives is exactly backwards.

¶60 Lewis was talking to his ex-wife. Jane testified at the
preliminary hearing that the two had a “contentious relationship”
“[b]asically from 2013 on,” and Lewis’s own counsel agreed with
and even utilized that characterization at several points in these
proceedings. Lewis and Jane were also in an ongoing custody
battle—Jane testified at the preliminary hearing that she’d “lost
count” of how many times she’d been to court relating to those
matters. And of some note, Jane testified at the preliminary
hearing (in response to a question from Lewis’s counsel) that she
had made “a few” reports “to both law enforcement and DCFS”
against Lewis during the intervening years.

¶61 Against that backdrop, it seems to me that once Lewis
realized that he might be on the hook for violating the protective
order—and, thus, that Jane might now have some “leverage” over
him, Maj. Op. ¶ 34—this would have naturally made Lewis more
hesitant to say anything potentially incriminating to her, not the
other way around.

¶62 It wouldn’t require any legal training to understand that
having sexual intercourse with someone who’s asleep qualifies as
rape, nor would it take any keen legal insight to realize that rape
is a far more serious criminal offense than violating a protective

20210661-CA 31 2024 UT App 96
State v. Lewis

order. As a result, since Lewis was apparently worried that Jane
might report him for violating the protective order, wouldn’t he
also be worried that she might report him if he admitted that he’d
had sex with her while she was asleep? And wouldn’t this give
him reason to not say anything that resembled a confession to
these more serious allegations?

¶63 Put differently, it seems to me that the existence of the
protective order, the possibility that Lewis had now violated that
protective order, and the history between Lewis and Jane all
combine to make what Lewis chose to say anyway even more
reliable, not less reliable. And to the extent that the majority (and
the district court) have come up with reasons why this might be
otherwise, I just don’t agree that these concerns are so obvious or
compelling that Lewis’s otherwise on-point statements in
response to Jane’s allegations should be deemed so unreliable that
they shouldn’t be submitted to the jury. 14

¶64 Finally, on the question of whether the State had any “need
for the evidence,” Anderson-Wallace, 2021 UT App 10, ¶ 19,
(quotation simplified), the majority surmises that the State did not

14. For similar reasons, I take issue with the district court’s
assertion (cited with favor by the majority) that, because of the
protective order, Lewis was “not at liberty to fully and
confidently” respond to Jane’s questions and assertions. Maj. Op.
¶ 34. Again, even though Lewis was cognizant of the protective
order, he was still willing to speak with Jane for 19 minutes.
During that discussion, Lewis felt at liberty to tell Jane that he’d
received therapy, that he thought her allegations had already been
“dealt with,” that she had not been at risk of getting pregnant
because he’d ejaculated elsewhere, and that he’d asked for and
received her consent “a lot” of the time. If he felt at liberty to say
all of these things, I don’t see why he wouldn’t have felt at liberty
to instead tell her that he never had sexual intercourse with her
while she was asleep if that was the message he wished to convey.

20210661-CA 32 2024 UT App 96
State v. Lewis

need this evidence because it could have obtained some other
evidence of Lewis’s intent in some other way. In the majority’s
view, the State should have tried “removing the protective order”
and then having Jane try talking to Lewis in a second call so that
the State could obtain “a second recording that would not have
been mired in all the legal infirmities attached to the recording at
issue here.” Maj. Op. ¶ 32. I find this suggestion to be equal parts
troubling and unconvincing.

¶65 As noted by the majority, Maj. Op. ¶ 4 n.3, our record
doesn’t tell us much about the basis for the protective order. But
Jane presumably obtained the protective order by persuading a
court that she was entitled to one, and there’s been no suggestion
(much less a showing) that this protective order never should
have been issued. There’s also no reason to think that the danger
that had prompted the court to issue the protective order had
dissipated in the meantime. As a result, the majority is apparently
suggesting that Jane should have been required to give up the
protections of the protective order that she was entitled to in order
to participate in a law-enforcement-supervised phone call as part
of an investigation into whether Lewis had also raped her. I find
that suggestion to be troubling.

¶66 I also find it to be unpersuasive in terms of how this part of
rule 403 operates. The cases that have looked to the proponent’s
need for the evidence have commonly looked to whether the
proponent had some other available evidence that the proponent
could instead use to prove the same point. See, e.g., State v. Maurer,
770 P.2d 981, 986 (Utah 1989) (looking to whether “the
prosecution [had] other evidence available” to prove the element
in question); State v. Northcutt, 2008 UT App 357, ¶ 16, 195 P.3d
499 (concluding that this part of the rule 403 balancing weighed
against admissibility because it “appear[ed] from the record that
the State had ample proof” of the same elements without the
evidence in question); State v. Rees, 2004 UT App 51, ¶ 5, 88 P.3d
359 (concluding that the State needed the evidence because it was

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State v. Lewis

“essentially the only evidence of [the defendant’s] intent, other
than the victim’s speculation”). And there’s good reason for
viewing this part of the test this way. If the proponent of the
evidence can prove the same point with some other evidence that
is readily available, then the evidence in question is in some sense
cumulative, and to the extent that it is cumulative, it is by
definition less probative.

¶67 But here, the majority isn’t pointing to anything that is
readily available. True, the majority points out that Lewis sent
Jane an email after this call in which he told her that if she
removed the protective order, he’d be willing to “talk[] more if
[she] desire[d].” But that second call never happened. And even
if it had been arranged, there’s no guarantee that Lewis would
have said anything similar to what he said in the first call. Indeed,
perhaps having had more time to think about things, Lewis might
think differently about the advisability of telling his ex-wife that
he’d “[p]ossibly” had sex with her while she was asleep. In any
event, this is all purely speculative. And this is why I believe the
majority’s suggestion is ultimately beside the point. Again, the
majority isn’t saying that the State has no need for this evidence
because the State has other evidence with which it can prove the
same elements of the offense. Rather, the majority is saying that
the State has no need for this evidence because the majority would
prefer that the State had tried collecting other evidence instead.
And on that basis, it’s affirming the suppression of this evidence,
even though the majority’s preferred evidence doesn’t actually
exist and might never exist. I don’t believe that this is a proper
assessment of how this portion of the rule 403 balancing
operates. 15

15. To the extent that the majority’s view on this point is colored
by its disapproval of law enforcement allowing (or perhaps even
encouraging) Jane to make this pretext call despite the protective
(continued…)

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State v. Lewis

¶68 In sum, I believe that Lewis’s recorded statements are
highly probative of the central question of this case, which is
whether Lewis had the requisite mens rea when he had sexual
intercourse with Jane. In addition, the proponent of this evidence
(the State) has a pronounced need for these statements because it
has no other direct evidence with which it can prove Lewis’s
intent. Thus, even accounting for the concerns identified by the
majority, I have no hesitancy in concluding that these statements
have strong probative value.

B. Danger of Unfair Prejudice

¶69 The other side of the rule 403 balancing asks whether the
evidence’s probative value “is substantially outweighed by a
danger of,” among other enumerated things, “unfair prejudice.”
Utah R. Evid. 403. As with the probative value inquiry, I disagree
with the majority’s various conclusions on this issue.

¶70 “Because all effective evidence is prejudicial in the sense of
being damaging to the party against whom it is offered, rule 403
does not require a court to exclude all prejudicial evidence.” State
v. Suhail, 2023 UT App 15, ¶ 85, 525 P.3d 550 (quotation
simplified), cert. denied, 531 P.3d 730 (Utah 2023). Instead, the
“type of prejudicial evidence that calls for exclusion is evidence
that creates an undue tendency to suggest decision on an
improper basis, commonly but not necessarily an emotional one,
such as bias, sympathy, hatred, contempt, retribution or horror.”
Id. (quotation simplified). In this sense, unfair prejudice refers to
the possibility that the evidence might “cause the jury to base its
decision on something other than the established propositions of
the case.” State v. Lindgren, 910 P.2d 1268, 1272 (Utah Ct. App.
1996) (quotation simplified).

order, I address that concern below in my discussion of the
potential for unfair prejudice.

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State v. Lewis

¶71 The majority agrees with the district court’s conclusion that
there is a danger of unfair prejudice. It offers three areas of
concern, all of which stem from the protective order.

¶72 First, the majority initially suggests that “it is not possible
to present the recorded phone call to the jury without it
simultaneously finding out about the protective order.” Maj. Op.
¶ 36. I disagree. Lewis and Jane discussed the protective order in
two places in this call: in the middle of the conversation, they
talked about it in a passage that comprises less than a page of
transcript; then, at the end of the call, Lewis referred to the
protective order as his reason for ending the conversation. If this
call were played for a jury, these portions could easily be redacted.
Thus, the evidence that’s actually at issue—Lewis’s responses to
Jane’s questions about whether he had sex with her while she was
asleep—can indeed be submitted to the jury without the jury ever
hearing that the protective order existed.

¶73 Second, the majority acknowledges this redaction
possibility, but it then opines that if the jury is not told about the
protective order, Lewis would be unable to “explain his guarded
comments, apparent hesitancy,” and alleged “motivation to
placate Jane.” Maj. Op. ¶ 36.

¶74 As explained above, I’m less persuaded than the majority
is that the protective order actually created an incentive for Lewis
to falsely incriminate himself to his ex-wife. Beyond that, I’m not
persuaded that this particular concern renders these statements
inadmissible under rule 403. After all, the State isn’t trying to put
on evidence of the protective order; rather, the State is trying to
put on evidence of the other things that Lewis said during the
conversation. As a result, the majority’s concern here isn’t about
unfair prejudice that necessarily flows from the evidence itself;
rather, the majority’s concern is that Lewis might want to put on
evidence of the protective order in response and that Lewis’s own
proposed evidence about the protective order would then create

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State v. Lewis

unfair prejudice. The majority cites no authority extending the
rule 403 unfair prejudice analysis to reactive unfair prejudice of
this sort. 16

¶75 This leaves the final concern, which is a systemic one. The
majority points out that the “district court’s vehement
disapproval of and frustration with the active role law
enforcement took in the purposeful violation of the district court’s
protective order” informed that court’s view as to “all three
grounds on which it suppressed the recording.” Maj. Op. ¶ 34 n.9.
And the majority apparently disapproves of law enforcement’s
decision as well. In its analysis of the probative value of the call,
for example, the majority says that if prosecutors had “remov[ed]
the protective order,” this would have removed any “legal
infirmities.” Maj. Op. ¶ 32.

¶76 But I don’t believe this is grounds for suppressing Lewis’s
recorded statements under rule 403. The concern here seems to be
that there was something inappropriate about law enforcement
approving or even facilitating the commission of one crime (a
protective order violation) in order to investigate another (an
alleged rape). But by constitutional design, the decision about
what to charge and when is a decision left to the executive branch,

16. Regardless, even if the unfair prejudice portion of rule 403 can
operate in this manner, I don’t believe that the unfair prejudice at
issue in this case is so pronounced that suppression is warranted.
I do agree that in some circumstances, a defendant might be
unfairly prejudiced if a jury unnecessarily learns that there was a
protective order against the defendant. See State v. Meik, 2024 UT
App 46, ¶ 34 n.6, 547 P.3d 878, petition for cert. filed, May 29, 2024
(No. 20240558). But for the reasons I set forth below in Part C, I
believe that any unfair prejudice that would result from the jury
learning about the protective order in this case would not
outweigh the strong probative value of the statements in question,
much less substantially outweigh it.

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State v. Lewis

not the judiciary. As a result, if the appropriate executive branch
officials wished to immunize Lewis for a protective order
violation, that was their prerogative. I don’t see where rule 403
has given the judiciary the supervisory authority to retroactively
tell the county attorney that he could not approve this
investigatory tactic.

¶77 Beyond the systemic construct, I’m also less convinced
than the majority is that this was necessarily problematic. After
all, it’s not unheard of (much less inappropriate) for law
enforcement officials to countenance the commission of a lesser
crime in order to investigate a more serious one. This is something
of a staple of undercover operations. And while there are
obviously complicated dynamics at play in such decisions, those
complicated dynamics are the reason that such decisions are best
left to the political actors. As a result, courts have been
appropriately wary of holding that undercover operations (even
those that involve some law breaking) can’t be approved. See, e.g.,
United States v. Russell, 411 U.S. 423, 430–32 (1973) (holding that
supplying the ingredients for drug-manufacturing would be a
“permissible means of investigation” that “stops far short of
violating that fundamental fairness, shocking to the universal
sense of justice” (quotation simplified)); see also United States v.
Mosley, 965 F.2d 906, 910 (10th Cir. 1992) (“Government agents
often need to play the role of criminals in order to apprehend
criminals, and this role occasionally entails unseemly behavior.”).
And that’s essentially what happened here. Although Jane had a
protective order against Lewis, the county attorney decided that
it was worth countenancing a potential violation of that protective
order in order to investigate whether Lewis had committed the
much more serious offense of rape. Yet with this opinion, the
majority is essentially suggesting that the county attorney
couldn’t do that.

¶78 Even if it were somehow true that this was improper, I’m
not convinced that rule 403 is the vehicle by which the judiciary

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State v. Lewis

can say so. Separate from its rule 403 analysis, the district court
concluded that, because of how the protective order interfaced
with this phone call, Lewis’s statements were both (i) involuntary
and (ii) obtained in violation of due process under a “shocks-the-
conscience” rubric. Those seem to me to be much more natural
analytical places for the courts to consider whether evidence was
collected in an unlawful manner—and, if so, whether the evidence
should be suppressed as a result.

¶79 But the majority has chosen to affirm the district court only
on the ground that the statements were inadmissible under rule
403. And I see this choice as being problematic. Our supreme
court has pulled back from previous extra-textual additions to
rule 403, holding that “the governing legal standard for
evaluating whether evidence satisfies rule 403 is the plain
language of the rule, nothing more and nothing less.” State v.
Cuttler, 2015 UT 95, ¶ 2, 367 P.3d 981. On its face, the text of the
rule, as relevant here, simply asks whether the probative value of
the evidence in question is substantially outweighed by the
danger of unfair prejudice. And in fidelity to that text, Utah cases
have commonly held that the “unfair prejudice” component looks
to whether the evidence might prompt the jury to judge the case
on some improper basis. See, e.g., State v. Green, 2023 UT 10, ¶ 78,
532 P.3d 930; Suhail, 2023 UT App 15, ¶ 85; State v. Bryson, 2018
UT App 111, ¶ 13, 427 P.3d 530. Here, the majority does not
explain why the jury would be more likely to convict Lewis based
on the improper basis of the jury thinking that law enforcement
should not have allowed Jane to make this call. If anything, this
again seems backwards.

¶80 As a result, to the extent that the majority’s unfair prejudice
analysis rests on its concerns about the impropriety of this
investigatory tactic, I believe that the majority is answering a
different question than the one that is posed by rule 403. I thus
disagree with its decision to employ this rule in this manner.

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State v. Lewis

C. Balancing

¶81 This leads to the ultimate question, which is how to balance
the probative value of Lewis’s statements against the danger of
unfair prejudice.

¶82 As the majority correctly points out, the district court’s
ruling is subject to the abuse of discretion standard of review. Maj.
Op. ¶ 28. This is a deferential standard of review, and appellate
courts should not lightly conclude that there has been an abuse of
discretion.

¶83 But for purposes of our review in this case, it also matters
that the rule at issue has placed its own internal thumb on the
scale. Again, rule 403 states that a court may exclude relevant
evidence if the probative value is “substantially outweighed” by
the danger of unfair prejudice. Utah R. Evid. 403 (emphasis
added). Because of this, we’ve held that rule 403 “is an
inclusionary rule” that imposes a “heavy burden” on the party
who seeks to exclude the evidence in question. State v. Smith, 2019
UT App 141, ¶ 35, 449 P.3d 971 (quotation simplified). And when
“conducting a rule 403 analysis, courts generally indulge a
presumption in favor of admissibility.” State v. Granere, 2024 UT
App 1, ¶ 80, 543 P.3d 177 (quotation simplified); accord Green, 2023
UT 10, ¶ 78.

¶84 So viewed, I believe that it was an abuse of discretion for
the district court to suppress these statements. Again, the State is
seeking to admit portions of a recorded conversation in which
Lewis made a number of statements that either outright confirm
or at least suggest that he knew that his fiancée was asleep when
he had sexual intercourse with her. This is highly probative
evidence, and it’s central to the State’s case. Even accounting for
the possibility that, because of the circumstances, the jury might
learn that Lewis had a protective order against him, and even
accounting for the possibility that Lewis might suffer some unfair

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State v. Lewis

prejudice as a result, I don’t believe that this kind of evidence is
so inflammatory that it would necessarily “cause the jury to base
its decision on something other than the established propositions
of the case.” Lindgren, 910 P.2d at 1272 (quotation simplified).

¶85 In short, I don’t believe that the danger of unfair prejudice
even outweighs the probative value of the evidence in question,
much less that it substantially outweighs it. As a result, I would
reverse the district court’s decision to suppress these statements
under rule 403, and I would then reach the other issues presented
by the State in its appeal.

¶86 I respectfully dissent.

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