State v. Lowther

2015 UT App 180

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
JOHN MARCUS LOWTHER,
Defendant and Appellant.

Opinion
No. 20130697-CA
Filed July 30, 2015

Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 111900725

Edward J. Stone, Attorney for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee

JUDGE JAMES Z. DAVIS authored this Opinion, in which
JUDGE JOHN A. PEARCE concurred. JUDGE GREGORY K. ORME
dissented.

DAVIS, Judge:

¶1 John Marcus Lowther entered conditional no-contest
pleas to two counts of rape, reserving for appeal his challenge to
the trial court’s grant of the State’s motion to admit evidence
pursuant to rule 404(b) of the Utah Rules of Evidence. We
reverse and remand.

BACKGROUND

¶2 In support of its charge that Lowther raped K.S., the State
sought to admit testimony from three other women who allege
that Lowther had ‚raped them under similar circumstances: they
State v. Lowther

had attended a social gathering where they consumed alcohol;
they went to sleep either drunk or tipsy; and they awakened to
find *Lowther+ forcefully penetrating them.‛ The State
considered the evidence necessary to show Lowther’s ‚intent to
engage in sexual activity without the consent of the victims,‛ his
‚modus operandi . . . to initiate the offenses after the victims had
reached a state where they were incapable of protesting or
resisting,‛ and his ‚lack of accident or mistake‛ as to the
‚vulnerability of his victims at the time that he perpetrated
sexual offenses against them,‛ and to establish lack of consent.
The trial court held an evidentiary hearing during which K.S.
and the three proposed witnesses testified.

¶3 K.S. testified that she attended a movie premiere on
September 22, 2010, when she was twenty years old. She testified
that because she had been drinking at the event and later at a
hotel bar, she called a friend to drive her and another woman,
S.H., home from the premiere. The friend arrived in a car driven
by Lowther, whom K.S. had met a few times on previous
occasions. Lowther drove K.S. and S.H. to S.H.’s house. K.S.
testified that she probably had two drinks that night at the event.
She estimated that at the time she went to bed her level of
intoxication was a two on a ten-point scale on which zero was
completely sober and ten was having alcohol poisoning. K.S.
went straight to bed in S.H.’s room, removing her jeans herself,
and later woke up to find Lowther laying behind her, in a
spooning position, penetrating her vaginally. Her underwear
was pushed aside. He also had an arm draped over her torso
and was holding her wrist against her chest. K.S. rolled away.
Lowther either pulled her back to the bed or she fell back. K.S.
stood up again and left the room, ending the incident.

¶4 A.P. testified that she had met Lowther a few times
through a friend before seeing him at a house party in December
2009. A.P. testified that she drank vodka at the party, that she
had never been drunk before, and that she was seventeen at the
time. She testified that she became very sick from the alcohol

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and that her then-boyfriend brought her to a quiet room in the
basement of the house where she could rest. She testified that
her intoxication was ‚a 7 or 8, possibly a 9‛ on a ten-point scale
with ‚10 being ending up in the hospital with alcohol
poisoning.‛ A.P.’s boyfriend and several other people continued
to periodically check on A.P. while she was in the basement
room. At some point, Lowther came into the room, purportedly
to check if A.P. was okay, at which time he began ‚rubbing‛ her
and ‚dry humping‛ her. She testified that Lowther had shut and
locked the door and that she could occasionally hear her
boyfriend and friends trying to get in to the room to check on
her but that she was too intoxicated to respond. She testified that
she told Lowther ‚no‛ at least twice while he was rubbing and
humping her but that she then ‚blacked out,‛ and when she
regained consciousness, ‚[Lowther] was on top of [her] . . . , his
penis was inside of *her+,‛ and he had pinned her hands
alongside her torso. She testified that Lowther had pulled her
pants down to her ankles but that she probably still had a shirt
on. She testified that she told Lowther ‚no‛ another two or three
times and repeated that she was sick, and she recalled ‚throwing
up continuously through this the whole time.‛ She testified that
she blacked out again and that when she ‚woke up*, Lowther+
was next to *her+.‛ That was when she got up and left.

¶5 C.H., who was eighteen at the time of her alleged rape,
testified that she had invited some friends to her apartment on
February 14, 2009, and that one of her guests brought Lowther to
the party. C.H. testified that she had never met Lowther before.
She testified that she consumed alcohol at the party, in
Lowther’s presence, and that she proceeded to get ‚very
intoxicated.‛ During the party, C.H. fought with her then-
boyfriend and kicked him out of the apartment. She testified that
she talked with Lowther and other partygoers about the fight.
Around 5:00 a.m., C.H. told Lowther and the other remaining
guests that she was going to bed. Approximately an hour and a
half after she fell asleep, C.H. woke up because Lowther was on

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top of her, having sex with her. Her pants had been removed,
she presumed by Lowther. She testified, ‚I actually asked him
what was happening. I didn’t get it,‛ and when she realized
what was occurring, she ‚started pushing him from his
shoulders to get him off.‛ When that did not work after several
attempts, she ‚pushed him by his . . . pelvis area,‛ which
ultimately caused him to stop. She also testified that she did not
feel intoxicated at the time of the alleged sexual conduct.

¶6 Last, C.R. described herself as ‚pretty good friends‛ with
Lowther, whom she got to know through her then-boyfriend,
now husband. On July 20, 2010, when C.R. was twenty years old,
she and her boyfriend invited Lowther to their house for some
drinks. She and Lowther both drank that night. She testified that
she had three or four shots of vodka throughout the evening,
and she estimated her intoxication level as a four, five, or six out
of ten. C.R. went to bed and later woke up because she felt
‚fingers inside‛ of her and Lowther laying across her legs. Her
boyfriend was asleep in the bed next to her. She testified that she
‚sort of shifted a little bit, kicked *Lowther+ off,‛ and told him to
go home, at which point he left.

¶7 Following the evidentiary hearing, the trial court issued a
memorandum decision and order granting the State’s motion to
admit the rule 404(b) evidence. The court based its ruling on the
doctrine of chances and our supreme court’s decision in State v.
Verde, 2012 UT 60, 296 P.3d 673. Lowther appeals.

ISSUE AND STANDARD OF REVIEW

¶8 On appeal, Lowther argues that the trial court did not
‚engage in a scrupulous examination‛ of the prior bad acts
evidence because it failed to follow the requisite rule 404(b)
analysis and instead relied solely on the doctrine of chances.
Rule 404 of the Utah Rules of Evidence provides, ‚Evidence of a
crime, wrong, or other act is not admissible to prove a person’s

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character in order to show that on a particular occasion the
person acted in conformity with the character.‛ Utah R. Evid.
404(b)(1). However, evidence of a prior bad act ‚may be
admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.‛ Id. R. 404(b)(2). ‚*W+e
review a trial court’s decision to admit evidence under rule
404(b) . . . under an abuse of discretion standard. We review the
record to determine whether the admission of other bad acts
evidence was ‘scrupulously examined’ by the trial judge ‘in the
proper exercise of that discretion.’‛ State v. Nelson-Waggoner,
2000 UT 59, ¶ 16, 6 P.3d 1120 (footnote omitted) (quoting State v.
Decorso, 1999 UT 57, ¶ 18, 993 P.2d 837). Thus, we accord some
deference to a trial court’s decision to admit evidence under rule
404(b), ‚*b+ut such a decision can withstand our review only if
the evidence falls within the bounds marked by the legal
standards set forth in the rules of evidence.‛ Verde, 2012 UT 60,
¶ 19.

ANALYSIS

¶9 In reviewing a motion to admit prior bad acts under rule
404(b), a trial court must make three inquiries. A ‚trial court
must first determine whether the bad acts evidence is being
offered for a proper, noncharacter purpose, such as one of those
specifically listed in rule 404(b).‛ Nelson-Waggoner, 2000 UT 59,
¶ 18. Next, ‚the court must determine whether the bad acts
evidence meets the requirements of rule 402 [of the Utah Rules
of Evidence], which permits admission of only relevant
evidence.‛ Id. ¶ 19. The doctrine of chances ‚is a theory of logical
relevance that rests on the objective improbability of the same
rare misfortune befalling one individual over and over,‛ Verde,
2012 UT 60, ¶ 47 (citation and internal quotation marks omitted),
and therefore, the doctrine may satisfy either or both of these
first two rule 404(b) inquiries. Last, in determining whether prior
bad acts evidence should be admitted, a ‚trial court must

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determine whether the bad acts evidence meets the requirements
of rule 403 of the Utah Rules of Evidence,‛ which provides that
relevant evidence ‚‘may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.’‛
Nelson-Waggoner, 2000 UT 59, ¶ 20 (quoting Utah R. Evid. 403).

I. The Doctrine of Chances

¶10 Lowther first argues that in Verde, the Utah Supreme
Court specifically limited the application of the doctrine of
chances to cases in which the defendant challenges the
complaining witness’s testimony as fabricated. See Verde, 2012
UT 60, ¶¶ 44, 46. And because he never raised or indicated an
intent to raise a defense of fabrication, Lowther contends that the
doctrine of chances is inapplicable to his case and that the State’s
rule 404(b) evidence is not admissible under this theory.

¶11 ‚Fidelity to the integrity of [rule 404(b)] requires a careful
evaluation of the true—and predominant—purpose of any
evidence proffered under rule 404(b).‛ Id. ¶ 22. In Verde, the
court acknowledged that ‚*i+n some circumstances, evidence of
prior misconduct can be relevant under the so-called ‘doctrine of
chances.’‛ Id. ¶ 47. The court further acknowledged that the
doctrine of chances ‚defines circumstances where prior bad acts
can properly be used to rebut a charge of fabrication.‛ Id. The
court also explained the doctrine in terms of rebutting defenses
based on mistake, coincidence, or accident. See id. ¶¶ 48–50
(collecting cases). Because a charge of witness fabrication was at
issue in Verde, the Verde court necessarily addressed the doctrine
more specifically in regard to that noncharacter purpose. Id.
¶¶ 44, 46. This court’s subsequent applications of and citation to
Verde may have suggested different interpretations of the scope
of that case. See, e.g., State v. Clark, 2014 UT App 56, ¶ 23 n.4, 322
P.3d 761 (citing Verde and defining the doctrine of chances as a
means to rebut a fabrication defense); State v. Lomu, 2014 UT
App 41, ¶ 25, 321 P.3d 243 (citing Verde and affirming the use of
the doctrine of chances to admit prior bad acts evidence to rebut

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the defendant’s claim that he did not know or intend that his
accomplice would use a gun during a convenience store
robbery). Nonetheless, the Verde court defined the doctrine of
chances as a theory of relevance under which rule 404(b)
‚evidence of prior similar tragedies or accusations‛ may be
admitted to support an ‚inference that the chance of multiple
similar occurrences arising by coincidence is improbable‛ as well
as ‚a conclusion that one or some of the occurrences were not
accidents or false accusations.‛ Verde, 2012 UT 60, ¶¶ 50–51; see
also State v. Labrum, 2014 UT App 5, ¶¶ 31–32, 318 P.3d 1151
(citing Verde and describing the doctrine of chances as a general
theory of relevance under which prior bad acts evidence may be
admitted). Thus, we are not convinced that Verde necessarily
limited the applicability of the doctrine of chances, as Lowther
argues, to ‚‘circumstances where prior bad acts can properly be
used to rebut a charge of fabrication.’‛ (Quoting Verde, 2012 UT
60, ¶ 47.)

¶12 Although the trial court in this case identified the
noncharacter purpose for which it admitted the rule 404(b)
evidence as, by itself, ‚the doctrine of chances,‛ the court also
recognized the rule 404(b) evidence as relevant to prove lack of
consent. Lowther states in his appellate brief ‚that the testimony
from the other women would have a tendency to make the
existence of K.S.’s consent [to sexual intercourse] more or less
probable than it would be without said testimony.‛ See generally
Utah Code Ann. § 76-5-402(1) (LexisNexis Supp. 2014) (‚A
person commits rape when the actor has sexual intercourse with
another person without the victim’s consent.‛). Likewise, when
the State addressed the doctrine of chances in support of its
motion to admit the rule 404(b) evidence, it suggested that the
bad acts evidence should be admitted under this framework to
rebut Lowther’s defense of consent. Although neither party
addresses whether the doctrine of chances provides a stand-
alone ground on which rule 404(b) evidence may be admitted,
we are satisfied that the trial court considered the evidence for

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the separate noncharacter purpose of refuting Lowther’s defense
of consent.

II. Application of the Doctrine of Chances

¶13 Lowther next contends that the rule 404(b) evidence is not
sufficiently similar to K.S.’s account to be admissible. Rule 404(b)
evidence offered under the doctrine of chances ‚must not be
admitted absent satisfaction of four foundational requirements,
which should be considered within the context of a rule 403
balancing analysis.‛ State v. Verde, 2012 UT 60, ¶ 57, 296 P.3d 673
(footnote omitted); see also Edward J. Imwinkelried, The Use of
Evidence of an Accused’s Uncharged Misconduct to Prove Mens Rea:
The Doctrines Which Threaten to Engulf the Character Evidence
Prohibition, 51 Ohio St. L.J. 575, 589–601 (1990) (differentiating
slightly the admissibility requirements for evidence offered
under the doctrine of chances based on whether the evidence is
offered to prove an actus reus or a mens rea). Those four
requirements center on the materiality, similarity, independence,
and frequency of the charged and uncharged conduct. Verde,
2012 UT 60, ¶¶ 57–61.

¶14 Similarity is necessary ‚to dispel any realistic possibility
of independent invention‛ between the rule 404(b) witnesses
and is achieved by requiring, at the very least, that ‚*e+ach
uncharged incident . . . be roughly similar to the charged crime.‛
Id. ¶¶ 58–59 (emphasis, citations, and internal quotation marks
omitted). Furthermore, when comparing the similarities between
victims of uncharged incidents, generally ‚courts are less
tolerant of dissimilarities‛ because ‚*t+he accused’s intent may
vary with the victim’s identity.‛ Imwinkelried, 51 Ohio St. L.J. at
596–97; see also People v. Spoto, 795 P.2d 1314, 1320 (Colo. 1990)
(en banc) (‚*S+imilarity is crucial when the theory of logical
relevance is the doctrine of chances.‛); State v. Leistiko, 282 P.3d
857, 863–64 (Or. 2012) (en banc) (interpreting the doctrine of
chances as requiring a high degree of similarity and suggesting
that the doctrine is unavailable when the occurrence of the actus

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reus is in dispute), modified on other grounds by 292 P.3d 522 (Or.
2012) (en banc). Accordingly, courts ‚should insist that the
victims be similar‛ because ‚the trier *of fact+ can infer wrongful
intent much more confidently if the accused has victimized the
same type of person on other occasions.‛ Imwinkelried, 51 Ohio
St. L.J. at 596–97.

¶15 In weighing the similarity factor, the trial court
concluded, ‚Like the charges involving K.S., the three other
alleged [incidents] were against young women with whom Mr.
Lowther had little or no acquaintance, who were intoxicated and
either asleep or passed out, and whom the defendant allegedly
raped in private . . . .‛ Lowther challenges this conclusion,
pointing out that ‚*t+here is no pattern among the women in the
amount of alcohol consumed, only that alcohol itself was
consumed, with varying effects‛; that the degree to which the
women had known Lowther before their alleged rapes varied;
that only C.H. and C.R. described house party ‚situations‛; that
none of the rule 404(b) witnesses had their underwear pushed
aside like K.S.; and that none of the rule 404(b) witnesses were
penetrated in the same position as K.S.1

1. Lowther does not specifically tie his similarity argument to
Verde; rather, he painstakingly differentiates his case from other
rape cases in which rule 404(b) evidence was admitted under
other theories, i.e., to show a pattern of behavior or modus
operandi. See, e.g., State v. Nelson-Waggoner, 2000 UT 59, ¶¶ 22–
25, 6 P.3d 1120; State v. Marchet, 2009 UT App 262, ¶¶ 31, 39, 219
P.3d 75; see also State v. Verde, 2012 UT 60, ¶ 53, 296 P.3d 673
(‚Probability reasoning is also the best understanding of our
analysis in State v. Nelson-Waggoner, 2000 UT 59, 6 P.3d 1120.‛).
In particular, he asks this court to identify ‚the minimum
number of similarities that are necessary to allow the
introduction of the other acts as probative of consent or another
404(b) purpose.‛ However, ‚*a+ny prescription of a threshold of
(continued<)

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¶16 First, we recognize that both Lowther’s and the trial
court’s seemingly opposing characterizations of the women’s
familiarity with Lowther are supported by the record; K.S. and
A.P. specifically described themselves as acquaintances of
Lowther. C.R. described Lowther as a friend, and C.H. testified
that she had never met Lowther until that night. While certainly
C.R., as a friend of Lowther’s for several years, would have been
more familiar with Lowther than A.P. and K.S., who had met
him through mutual friends a few times in the past, we
nonetheless consider this factor to weigh in favor of similarity.
Like K.S., two of the rule 404(b) witnesses, C.R. and A.P., were in
some way acquainted with Lowther before the alleged incidents
occurred. Only C.H. was a stranger.

(<continued)
similarity for admitting similar accusations evidence is
inevitably imprecise.‛ Verde, 2012 UT 60, ¶ 59. The analysis
under rule 404(b) is necessarily case-specific, and the required
degree of similarity between the charged and uncharged
conduct varies depending on the noncharacter purpose sought.
See Edward J. Imwinkelried, The Use of Evidence of an Accused's
Uncharged Misconduct to Prove Mens Rea: The Doctrines Which
Threaten to Engulf the Character Evidence Prohibition, 51 Ohio St.
L.J. 575, 589–90 (1990) (indicating that generally ‚the required
degree of similarity‛ to ‚trigger the doctrine of chances‛ is ‚not
as great as the degree necessary to invoke the modus operandi
theory‛). As a result, we cannot provide a specific minimum
number of similarities required in rule 404(b) cases, and we do
not endeavor to do so. We recognize that more similarities may
exist in other cases, as Lowther has argued, but we are not
persuaded that the apparent strength of the rule 404(b) evidence
in any other case necessarily undermines the admissibility of the
rule 404(b) evidence in this case.

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¶17 Next, we disagree with Lowther’s assertion that only two
women described house party ‚situations‛—all of the women
except for K.S. described house party ‚situations.‛ However, we
agree with Lowther that this similarity among the rule 404(b)
witnesses is of little import here; the similarities relevant to a
rule 404(b) analysis are those that exist between each rule 404(b)
witness and the complaining witness. The three rule 404(b)
witnesses’ testimonies that they attended house parties is not
similar to K.S.’s testimony regarding a movie premiere.
Nevertheless, all of the women had encounters with Lowther
after they consumed enough alcohol to feel impaired, the
women were of similar ages, and they all alleged that they had
been raped in the early morning, after they had fallen asleep or
passed out from alcohol. All of the alleged incidents occurred in
private residences at which Lowther was a guest. In each case,
Lowther was aware that the women had been drinking, and in
each situation, the women alleged that Lowther’s sex acts were
what roused them to consciousness.2

¶18 We recognize that there are also several differences
between K.S.’s and the rule 404(b) witnesses’ testimonies. For

2. Arguably, A.P.’s testimony differs on this point where it seems
she drifted in and out of consciousness during the alleged rape.
However, the only factor on which Lowther admits all four
women’s stories were similar goes to their levels of
consciousness. Lowther contends, though, that this factor must
be analyzed under State v. Denos, 2013 UT App 192, 319 P.3d 699,
and that the trial court’s failure to apply Denos indicates that the
court did not scrupulously examine the evidence. While Denos
illustrates how an alleged victim’s consciousness can show a lack
of consent, see id. ¶ 22, a comparative analysis to Denos is by no
means required every time a similar fact pattern arises. Thus, the
trial court’s failure to analyze Denos in this case does not dictate
our outcome on appeal.

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instance, the trial court concluded that in every case, Lowther
‚did not stop when *the women+ resisted,‛ which is simply not
supported by the record. In fact, K.S. testified that Lowther did
stop when she resisted, and C.R. similarly testified that Lowther
stopped when she kicked him and told him to go home. On the
other hand, C.H. testified that she had to push Lowther for some
time before he stopped and A.P. testified that she repeatedly told
Lowther ‚no‛ but that he did not stop. C.R. testified to object
rape, i.e., Lowther penetrated her vagina with his fingers, unlike
the other women who testified that Lowther penetrated their
vaginas with his penis. Likewise, the level of intoxication
experienced by each woman at the time of the alleged
encounters with Lowther varied—K.S. testified that she was at a
two out of ten; A.P. that she was at a seven, eight, or nine; C.R.
that she was at a four, five, or six; and C.H. that she did not feel
intoxicated at the time of the alleged rape. Additionally, A.P.’s
testimony depicts a far different scenario than K.S. and the other
rule 404(b) witnesses described: A.P. described being locked in a
room with Lowther, forcibly pinned down by him, and
intoxicated to the point that she was physically ill and fading in
and out of consciousness.

¶19 Nonetheless, we agree with the trial court’s conclusion
that the scenarios described by C.R., A.P., and C.H. were
sufficiently similar to the scenario described by K.S. to satisfy the
similarity prong of the Verde test. Accordingly, the trial court did
not abuse its discretion in reaching this conclusion. 3 See State v.
Verde, 2012 UT 60, ¶¶ 58–59, 296 P.3d 673.

3. In the course of this opinion, we evaluate the degree of
similarity and the specific similarities and dissimilarities
between the prior bad acts evidence and K.S.’s testimony in
different contexts. Here, we conclude that there are sufficient
general similarities in the evidence to sustain the trial court’s
rulings on the relevance inquiries under its rule 404(b) analysis.
(continued<)

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State v. Lowther

¶20 Lowther’s argument on appeal does not address the trial
court’s analysis of the rule 404(b) evidence under the remaining
Verde factors of materiality, frequency, and independence and
instead focuses on the trial court’s rule 403 balancing test and
application of the factors outlined in State v. Shickles, 760 P.2d
291 (Utah 1988). Accordingly, we do not consider the trial court’s
analysis of the relevance and noncharacter purpose of the rule
404(b) evidence under the materiality, frequency, and

(<continued)
In other words, we affirm the trial court’s determination that the
prior bad acts evidence is relevant for the noncharacter purpose
of demonstrating K.S.’s lack of consent. See generally Nelson-
Waggoner, 2000 UT 59, ¶¶ 18–19 (explaining that for bad acts
evidence to be admissible, the trial court must first determine if
the evidence is offered for a noncharacter purpose and is
relevant under rule 402 of the Utah Rules of Evidence); id. ¶ 24
(recognizing that bad acts evidence offered to prove the victim’s
lack of consent may be ‚both relevant and material to the issue
of consent and therefore properly admissible‛ (citation and
internal quotation marks omitted)). However, we conclude that
the dissimilarities, particularly in regard to A.P.’s testimony,
raise concerns as to whether the probative value of that
testimony is outweighed by the risk of unfair prejudice under
rule 403 of the Utah Rules of Evidence. See infra ¶¶ 27, 32. Under
Verde, we evaluate the same four factors of materiality,
similarity, independence, and frequency both to discern the
relevance of the proposed bad acts evidence and to weigh the
evidence’s probative value against its prejudicial effect. See State
v. Labrum, 2014 UT App 5, ¶ 28, 318 P.3d 1151 (explaining that
for a rule 403 analysis in cases relying on the doctrine of chances,
Verde displaces the Shickles factors, but also noting that one of the
Shickles factors involves weighing the similarities in the
evidence); see also State v. Shickles, 760 P.2d 291, 295–96 (Utah
1988).

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independence factors in Verde’s doctrine of chances analysis and
next address the trial court’s rule 403 balancing test.

III. Rule 403 Balancing

¶21 Lowther argues that the rule 404(b) evidence should be
excluded because the probative value of the evidence is
outweighed by its potential for unfair prejudice, confusing the
issues, and misleading the jury under rule 403 of the Utah Rules
of Evidence. ‚The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one
or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.‛ Utah R. Evid. 403. ‚Evidence
that is ‘genuinely being offered for a proper, non-character
purpose’ may also carry ‘a risk of an undue inference that the
defendant committed each act because of the defendant’s
immoral character.’‛ State v. Labrum, 2014 UT App 5, ¶ 25, 318
P.3d 1151 (quoting Verde, 2012 UT 60, ¶¶ 18, 51); see also State v.
Lucero, 2014 UT 15, ¶ 32, 328 P.3d 841 (requiring that ‚the
probative value of the evidence . . . be substantially outweighed
by the danger of unfair prejudice; and unfair prejudice results
only where the evidence has an undue tendency to suggest
decision upon an improper basis‛ (footnote, citations, and
internal quotation marks omitted)).

¶22 In cases applying the doctrine of chances, the rule 403
‚prejudice inquiry is focused generally on the extent to which
the ‘tendency *of the other acts evidence+ to sustain a proper
inference is outweighed by its propensity for an improper
inference or for jury confusion about its real purpose.’‛ Labrum,
2014 UT App 5, ¶ 28 (alteration in original) (quoting Verde, 2012
UT 60, ¶ 18). Although a court’s analysis under rule 403 is often
guided by the Shickles factors, ‚*w+here the context involves a
doctrine of chances analysis, we read Verde as having displaced
the Shickles factors.‛ Id. See generally Shickles, 760 P.2d at 295–96
(enumerating six factors to guide a court’s analysis under rule

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403 of the Utah Rules of Evidence). Thus, the rule 403 focus
under the doctrine of chances is ‚on the risk that the jury may
draw an improper ‘character’ inference from the evidence or that
it may be confused about the purpose of the evidence.‛ Labrum,
2014 UT App 5, ¶ 28; see also People v. Balcom, 867 P.2d 777, 787
(Cal. 1994) (in bank) (Arabian, J., concurring) (advising trial
courts to conduct a balancing analysis when addressing
evidence offered under the doctrine of chances by considering
‚such factors as the degree of similarity, the remoteness of the
other crime, the independence of the complaining witness from
the victim of the other crime, whether the other crime is
particularly inflammatory relative to the instant crime, and
whether [the] defendant has been convicted of the other crime‛),
cited by Verde, 2012 UT 60, ¶ 48.

¶23 Lowther identifies several concerns that the trial court
failed to address, namely, the risk that the three rule 404(b)
witnesses’ testimonies would ‚dominat*e+ the testimony in the
K.S. case‛ and render the trial less about ‚what happened with
K.S.‛ and more ‚about what happened with the other women.‛
He argues that this placed him in the position of having to
defend against four cases at once. Further, Lowther identifies
several credibility problems with each witness and notes that the
‚lengthy cross examination‛ he would be required to engage in
at trial would ‚draw*+ more attention to the other women’s cases
when they are supposed to be considered in a very limited
light.‛ In particular, Lowther argues that ‚A.P. and C.H. testified
dissimilarly from the preliminary hearing to the 404(b) hearing‛
and that ‚A.P.’s recollection of the event could best be
characterized as spotty, with significant gaps of time during
which she had no recollection.‛

¶24 Here, the trial court applied the Shickles factors. The court
concluded that the rule 404(b) evidence was strong because it
was comprised of ‚three other alleged victims *that+ will testify
at trial,‛ that the evidence was sufficiently similar for the reasons
identified in its Verde analysis, that the ten-month period

20130697-CA 15 2015 UT App 180
State v. Lowther

between the four alleged acts was relatively short for rule 403
purposes, that the State needed the evidence to ‚shed*+ light on
Mr. Lowther’s intent and lack of the victims’ consent,‛ that
alternative proof of Lowther’s intent was not available and could
‚be inferred by the repetition of similar conduct,‛ and that
although ‚other acts of sexual abuse *were+ undoubtedly
prejudicial to the accused[,] . . . the probative value of
introducing the additional allegations outweigh[ed] the degree
to which it might rouse the jury.‛ See Shickles, 760 P.2d at 295–96.
As to this last point, the trial court also noted that ‚Utah courts
infrequently find that the prejudice would unfairly outweigh the
probative value of evidence.‛

¶25 Given this court’s decision in State v. Labrum, 2014 UT
App 5, 318 P.3d 1151, to interpret Verde as replacing Shickles, see
id. ¶ 28, the trial court’s strict adherence to Shickles here is
misplaced. Moreover, we are concerned that the court’s
application of Shickles actually misdirected its rule 403 analysis,
causing it to focus on the ‚limited list of considerations outlined
in Shickles‛ instead of focusing on the ‚text of rule 403,‛ which
requires the court to balance the probative value of the prior bad
acts evidence against the danger of unfair prejudice. See Lucero,
2014 UT 15, ¶ 32 (‚*C+ourts are bound by the text of rule 403, not
the limited list of considerations outlined in Shickles.‛). In State v.
Lomu, 2014 UT App 41, 321 P.3d 243, this court considered a case
in which prior bad acts evidence was ‚offered in contemplation
of the ‘doctrine of chances’‛ and in which the trial court applied
the Shickles framework, rather than Verde’s ‚new analytical
framework.‛ Id. ¶ 28. There, we addressed the rule 403 balancing
test and concluded that despite the trial court’s reliance on the
Shickles factors, ‚there *were+ sufficient grounds to affirm the
trial court’s admission of the evidence based on Verde’s
foundational requirements.‛ Id. Thus, we will now consider the
trial court’s rule 403 analysis under the Verde factors—
materiality, similarity, independence, and frequency—to
determine whether sufficient grounds for admission exist here

20130697-CA 16 2015 UT App 180
State v. Lowther

despite the court’s application of a different analytical
framework. See id. ¶¶ 28–33.

¶26 The first Verde factor, materiality, requires that ‚*t+he issue
for which the uncharged misconduct evidence is offered . . . be in
bona fide dispute.‛ State v. Verde, 2012 UT 60, ¶ 57, 296 P.3d 673
(emphasis, citation, and internal quotation marks omitted). Here,
as the trial court recognized, Lowther’s assertion that K.S.
consented is in dispute, and the State offered the prior bad acts
evidence to rebut that defense and to demonstrate a lack of
consent. See Balcom, 867 P.2d at 785–86 (Arabian, J., concurring)
(explaining that prior bad acts evidence in rape cases in which
consent is the primary issue at trial is relevant because it helps
‚the jury decide who is telling the truth‛ by ‚corroborat*ing+ the
complaining witness’s testimony‛).

¶27 Second, as described above, see supra ¶ 14, ‚there must be
some significant similarity between the charged and uncharged
incidents to suggest a decreased likelihood of coincidence.‛
Verde, 2012 UT 60, ¶ 58. As discussed, there are general
similarities among all four women’s testimonies and more
striking similarities between K.S.’s testimony and C.R.’s and
C.H.’s testimonies. However, the differences in A.P.’s testimony
from K.S.’s, particularly A.P.’s testimony that Lowther
physically restrained her in a locked room and that her extreme
level of intoxication rendered her especially vulnerable, could be
‚particularly inflammatory relative to the instant crime.‛ See
People v. Balcom, 867 P.2d 777, 788 (Cal. 1994) (in bank) (Arabian,
J., concurring).

¶28 Third, ‚each accusation must be independent of the
others.‛ Verde, 2012 UT 60, ¶ 60. Here, as the trial court stated,
each woman ‚related independent stories of similar
occurrences‛ and there is otherwise no evidence in the record
that the women ‚collaborated‛ in making their accusations. See
Lomu, 2014 UT App 41, ¶ 31; see also Verde, 2012 UT 60, ¶ 60.

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State v. Lowther

¶29 Last, the frequency element requires that ‚*t+he defendant
. . . have been accused of the crime or suffered an unusual loss
more frequently than the typical person endures such losses
accidentally.‛ Verde, 2012 UT 60, ¶ 61 (emphasis, citation, and
internal quotation marks omitted). Here, the trial court
concluded that this factor was met because the rule 404(b)
evidence amounts to ‚*t+hree additional charges against Mr.
Lowther of sexual assaults—all within a 10 month period.‛ We
agree that this factor is met. Thus, we agree that the rule 404(b)
evidence is probative of K.S.’s lack of consent.

¶30 Next, we ‚consider whether the potential for prejudice or
confusion from admitting the evidence substantially outweighed
its probative value.‛ See State v. Lomu, 2014 UT App 41, ¶ 33, 321
P.3d 243. In Lomu, we held that because the rule 404(b) evidence
described an ‚almost identical‛ crime, the evidence was
‚extremely probative‛ in determining the defendant’s intent. Id.
¶¶ 30, 32 (citation and internal quotation marks omitted). And in
light of that ‚extreme‛ probativeness, we considered the fact that
the jury received a limiting instruction sufficient to ensure that
the risk that ‚the jury would convict on an improper basis was
remote.‛ Id. ¶ 33.

¶31 Here, we assume a limiting instruction would also have
been used in this case had it proceeded to a jury trial. But, the
rule 404(b) evidence is not ‚almost identical‛ to K.S.’s testimony,
nor is it ‚extremely probative‛ of whether K.S. actually
consented. Indeed, some courts, in addressing rape cases in
which consent was the only element in dispute, ‚have concluded
that evidence of the accused’s other acts is simply not admissible
. . . , since ‘*t+he fact that one woman was raped . . . has no
tendency to prove that another woman did not consent.’‛ Mark
Cammack, Using the Doctrine of Chances to Prove Actus Reus in
Child Abuse and Acquaintance Rape: People v. Ewoldt Reconsidered,
29 U.C. Davis L. Rev. 355, 395 (1996) (alteration and second
omission in original) (quoting Lovely v. United States, 169 F.2d
386, 390 (4th Cir. 1948)). However, other courts, including one

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State v. Lowther

cited favorably by our supreme court in Verde, identify evidence
of similar rapes in cases like this as ‚particularly important‛
‚corroborating evidence‛ that ‚the jury *should+ be allowed to
consider‛ because ‚*i+n making the momentous decision of guilt
or innocence of rape, the jury needs all the evidence available.‛
See Balcom, 867 P.2d at 785 (Arabian, J., concurring); see also State
v. Nelson-Waggoner, 2000 UT 59, ¶ 24, 6 P.3d 1120 (recognizing
that prior bad acts evidence ‚is not conclusive proof that the
[victim+ did not consent,‛ but considering ‚such evidence . . .
both relevant and material to the issue of consent and therefore
properly admissible‛ (alteration in original) (citations and
internal quotation marks omitted)).

¶32 Although some of the rule 404(b) evidence here may be
‚particularly important‛ to ‚corroborat*e+‛ the complainant’s
allegations, see People v. Balcom, 867 P.2d 777, 785 (Cal. 1994) (in
bank) (Arabian, J., concurring), we conclude that the trial court
did not adequately ‚balanc[e] the proper inferences‛ that may be
drawn from the State’s rule 404(b) evidence ‚against the
improper inferences‛ that the evidence also allows, see State v.
Labrum, 2014 UT App 5, ¶ 25, 318 P.3d 1151. We are particularly
concerned about A.P.’s testimony. In regard to A.P., the court
failed to consider the major differences in her account and
instead evaluated her testimony primarily for the general
similarities it shared with K.S.’s allegations. A.P.’s testimony that
she was pinned down and raped by Lowther in a locked room
while she was vomiting with alcohol poisoning and fading in
and out consciousness carries little probative value in terms of
showing that K.S. did not consent. The trial court did not
address the tendency of these differences ‚to suggest decision
upon an improper basis,‛ see State v. Lucero, 2014 UT 15, ¶ 32, 328
P.3d 841 (citation and internal quotation marks omitted), and
instead indicated that ‚Utah courts infrequently find that the
prejudice would unfairly outweigh the probative value of
evidence.‛ We conclude that A.P.’s testimony encourages a
verdict on an improper basis and should have been excluded by

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State v. Lowther

the trial court. Additionally, in light of C.H.’s and C.R.’s
testimonies, A.P.’s testimony is largely cumulative.

¶33 Last, even though the trial court erred in conducting its
rule 403 analysis, ‚we will only reverse if the error was
harmful.‛ State v. Lindgren, 910 P.2d 1268, 1273 (Utah Ct. App.
1996). ‚A trial court’s error is harmful if absent the error there is
a reasonable likelihood of an outcome more favorable to the
defendant.‛ Id. (citation and internal quotation marks omitted).
To discern whether a trial court’s error was harmful, the
appellate court must ascertain ‚from the record what evidence
would have been before the jury absent the trial court’s error.‛ Id.
at 1274. Although Lowther entered a conditional no-contest plea
and did not proceed to trial, we can assume that all of the rule
404(b) evidence would have been before the jury given the trial
court’s ruling on the evidence. And where the State’s case
against Lowther appears to hinge on the rule 404(b) evidence,
we cannot say that the evidence would have been harmless. We
assume that the trial court’s error in granting the State’s motion
as to A.P. is not harmless. See id. (assuming an error was harmful
in the context of reviewing a defendant’s conditional guilty
plea). Accordingly, we reverse the trial court’s ruling as to the
admissibility of A.P.’s testimony, which provides Lowther with
the opportunity to withdraw his conditional plea. See Utah R.
Crim. P. 11(j) (‚A defendant who prevails on appeal shall be
allowed to withdraw *a conditional+ plea.‛).

¶34 Having determined that the trial court did not properly
examine A.P.’s testimony under rule 403, we must also reverse
the trial court’s ruling as to the other rule 404(b) witnesses.
However, because we have not determined that C.R.’s and
C.H.’s testimonies were necessarily admitted in error, we
remand the case for further proceedings, i.e., to allow the trial
court to reconsider C.R.’s and C.H.’s testimonies under the
proper legal framework and without consideration of A.P.’s
testimony. See State v. Verde, 2012 UT 60, ¶¶ 58, 61, 296 P.3d 673

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State v. Lowther

(identifying similarity and frequency as key characteristics for
admission of rule 404(b) evidence under the doctrine of chances).

CONCLUSION

¶35 The trial court did not abuse its discretion by relying on
the doctrine of chances in reaching its decision to grant the
State’s motion to admit evidence under rule 404(b). However,
the trial court failed to scrupulously examine the proposed rule
404(b) evidence in evaluating the evidence’s admissibility under
rule 403. We therefore reverse the trial court’s ruling as to A.P.’s
testimony and reverse and remand its ruling in regard to the
testimonies of C.H. and C.R. for further proceedings in
accordance with this decision.

20130697-CA 21 2015 UT App 180