2023 UT App 34

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

DUSTIN BRENT RALLISON,

Appellant.

Opinion

No. 20200667-CA

Filed April 6, 2023

First District Court, Brigham City Department

The Honorable Brandon J. Maynard

No. 191100093

Freyja Johnson and Emily Adams, 

Attorneys for Appellant

Sean D. Reyes and Jonathan S. Bauer, 

Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS

concurred.

MORTENSEN, Judge:

¶1 This case comes to us on interlocutory appeal of the district 

court’s ruling on the admissibility of several items of evidence

under Utah’s version of the “rape shield” rule of evidence, which 

generally prohibits evidence at trial of a victim’s sexual behavior 

or disposition. Five women have accused Dustin Brent Rallison of 

physical and sexual assault occurring while they worked as 

servers at a restaurant he owned and operated. Prior to trial in this 

case, Rallison sought to admit, and the State sought to exclude,

seventeen items of evidence that may implicate the rape shield 

rule. The district court excluded sixteen of the seventeen items, 
State v. Rallison

20200667-CA 2 2023 UT App 34

and Rallison appeals the exclusion of six of those items. We affirm 

in part and reverse in part.

BACKGROUND

¶2 Rallison and his wife owned and operated a restaurant 

where the five alleged victims worked as servers. One of the 

servers—Tiffany1—reported to police that, as she was leaving 

work after the restaurant closed one evening, Rallison ran out and 

grabbed her breasts over her shirt from behind her. She reported 

that as she kept walking to her car and asked him what he was 

doing, he reached down her shirt and pinched and twisted her 

nipples over her bra. She further stated that she told him he was 

hurting her, but he reached inside her bra and pinched, pulled, 

and twisted her nipples, causing both nipples to bleed. She

reported the alleged assault to police the next day, and a police 

detective interviewed other employees at the restaurant.

¶3 Four other servers told police that Rallison had also

physically and sexually assaulted them at the restaurant. The 

servers reported that Rallison repeatedly slapped or punched

them on the buttocks or breasts. They alleged that Rallison put 

them “in choke holds to the point that they would pass out or 

almost pass out,” sometimes pressing his body against an alleged 

victim “to where [she] could feel his private parts on [her] butt.”

Some claimed that Rallison touched them on their breasts or 

buttocks beneath their clothing. One stated that Rallison 

forcefully poked the tip of his finger into her “butt hole” through 

her leggings.

¶4 Rallison was charged with, among other things, four 

counts of sexual battery for allegedly touching the buttocks or 

breasts of some of the women, as well as three counts of forcible 

1. A pseudonym. We discuss the other alleged victims without 

distinguishing them, in an effort to obscure their identities.
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sexual abuse for allegedly touching the bare breasts or buttocks of 

some of the women. To convict a defendant of sexual battery, the 

State must prove that a defendant “intentionally touches, whether 

or not through clothing, the anus, buttocks, or any part of the 

genitals of another person, or the breast of a female person, and 

the actor’s conduct is under circumstances the actor knows or 

should know will likely cause affront or alarm to the person 

touched.” Utah Code § 76-9-702.1(1). To convict a defendant of 

forcible sexual abuse, the State must prove that a defendant

touched “the anus, buttocks, pubic area, or any part of the genitals 

of another individual,” touched “the breast of another individual 

who is female,” or took “indecent liberties with another 

individual” and that the defendant acted “without the consent” 

of the other and with the intent to “cause substantial emotional or 

bodily pain to any individual” or to “arouse or gratify the sexual 

desire of any individual.” Id. § 76-5-404(2).

¶5 At a preliminary hearing, the magistrate heard testimony 

from each of the alleged victims. Following the hearing, the State 

filed a motion in limine seeking exclusion of certain testimony 

under rule 412 of the Utah Rules of Evidence. Rallison opposed

the State’s motion and moved to admit seventeen pieces of 

evidence. Of these, six pieces of evidence2 are at issue in this 

appeal:

2. Rule 412 indicates, “Before admitting evidence under this rule, 

the court must conduct an in camera hearing and give the victim 

and parties a right to attend and be heard. Unless the court orders 

otherwise, the motion, related materials, and the record of the 

hearing are classified as protected.” Utah R. Evid. 412(c)(3). The 

district court acted accordingly, and the proceedings below have 

been classified as protected. However, the rule does not address 

the handling of the evidence upon appeal. We recognize that 

“[t]he purpose of rule 412 is to prevent the accusers in sexual 

(continued...)
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• Item 5: Rallison claims that the alleged victims 

showed him and the restaurant cooks nude selfies 

on their phones.3

• Item 9: On the night of Rallison’s alleged assault 

against Tiffany in the parking lot and before going 

to work, Tiffany engaged in the following text 

exchange with her friend:

[Tiffany]: I saw that [Rallison’s wife] wasn’t going to 

be at the [restaurant] tonight. Meaning either [a 

cook] is closing up or [Rallison] is. And I started 

feeling F***ing scared. Wtf. If [Rallison] is closing 

that means I have make sure I’m never alone by him 

so I get my f***ing body wrecked by him. F*** sexual 

predators lol

[Friend]: Hahahaha I think it’s funny that you got 

legit scared

assault cases from being subjected to ‘unwarranted inquiries into 

[their] sexual behavior.’” State v. Clark, 2009 UT App 252, ¶ 30, 219 

P.3d 631 (quoting State v. Tarrats, 2005 UT 50, ¶ 20, 122 P.3d 581), 

cert. denied, 225 P.3d 880 (Utah 2010). Because we protect the 

identities of the alleged victims and because we ultimately hold 

that most of the evidence at issue is admissible, we do not feel that 

describing that evidence here subjects the alleged victims to

“unwarranted inquiries into [their] sexual behavior.” See id.

3. There is no testimony in the transcript that supports Rallison’s 

assertion that such evidence exists except as pertains to the 

separate item 10. In this interlocutory appeal, we discuss this item 

under the assumption that such evidence exists for the sake of 

determining admissibility based on the possibility that such 

evidence may be brought forward.
State v. Rallison

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[Tiffany]: He was really rough on Monday with my 

boobs so I am a little scared. My right nipple was 

bleeding.

[Friend]: I hate that. It’s not funny. I’m sorry you get 

abused at work By your hot boss. (emoji) at least 

he’s no tugly lol

[Tiffany]: I feel like it would be easier if he was ugly. 

And not married . . . to my other

[Friend]: Hahahaha me either. I’d probs give in 

cause I know he would choke the f*** out of me then 

I would just squirt down my leg then it would be 

game on.

[Tiffany]: Hahaha I just don’t know if I would f*** 

him because I want too or f*** him because he’ll fire 

me if I don’t lol.

Tiffany testified that she considered this 

hypothetical discussion about sex with Rallison to 

be a joke.

• Item 10: On the night of the alleged parking lot 

assault, Tiffany and Rallison were comparing 

phones, and Rallison said Tiffany didn’t have nude 

selfies on her phone; she responded that she did but 

kept them in a password-protected app. 

Tiffany testified that Rallison “pressured [her] into 

giving . . . him the code.” Rallison looked at the 

photos.

• Item 11: The alleged victims slapped each other’s 

buttocks at work.
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• Item 12: Rallison claims that male cooks slapped 

others’ buttocks at work and that at least one alleged 

victim slapped the cooks’ buttocks. Rallison also 

asserts that the alleged victims made flirtatious and 

sexual comments to the cooks and others at the 

restaurant, sometimes in front of Rallison.

• Item 17: One of the servers told the detective, “[I]n 

the beginning it was like mutual, you know? How I 

said, like everyone was flirting and messing around. 

It’s all just like fun. And I feel that’s like what led 

him to think that it was okay because then it was.” 

This activity may have included reciprocal buttocks 

slapping.4

Rallison alleged that items 11, 12, and 17 were relevant to the 

sexual battery charges and that items 5, 9, and 10 were relevant to 

the forcible sexual abuse charges.

¶6 The district court excluded sixteen of the seventeen items 

discussed in the motions in limine, including all six items at issue 

in this appeal, ruling that items 9, 11, and 12 were barred by rule 

412(a) and that items 5, 10, and 17 should be excluded under rule 

403 of the Utah Rules of Evidence. Rallison petitioned for 

permission to appeal the district court’s interlocutory order 

respecting these six items, and this court granted his petition.

ISSUE AND STANDARD OF REVIEW

¶7 Rallison contends that the district court improperly 

excluded six items of evidence. “We afford district courts a great 

4. Rallison presents this as “mutual and consensual touching of 

the buttocks,” but it is not entirely clear from the preliminary

hearing testimony whether the alleged victim ever touched 

Rallison’s buttocks.
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deal of discretion in determining whether to admit or exclude 

evidence and will not overturn an evidentiary ruling absent an 

abuse of discretion.” State v. Cuttler, 2015 UT 95, ¶ 12, 367 P.3d 981 

(cleaned up). “But whether the district court applied the proper 

legal standard in assessing the admissibility of that evidence is a 

question of law that we review for correctness.” Id. (cleaned up). 

A court abuses its discretion when it applies the wrong legal 

standard or when “its decision to admit or exclude evidence is 

beyond the limits of reasonability.” Id. (cleaned up).

ANALYSIS

¶8 We agree with the district court that items 11 and 12—other 

than evidence showing cooks slapping each other’s buttocks—

should be excluded under rule 412(a) of the Utah Rules of 

Evidence. Evidence of cooks slapping each other’s buttocks does 

not involve the alleged victims and is therefore beyond rule 412’s 

purview—we reverse on this point. We also conclude that the 

district court incorrectly applied rule 412 to item 9 and exceeded 

its discretion in excluding items 5, 10, and 17 under rule 403 of the 

Utah Rules of Evidence. Therefore, we affirm in part and reverse 

in part.

I. Rule 412: Items 9, 11, and 12

¶9 Under rule 412, evidence offered either “to prove that a 

victim engaged in other sexual behavior” or “to prove a victim’s 

sexual predisposition” is “not admissible in criminal . . . 

proceedings involving alleged sexual misconduct.” Utah R. Evid.

412(a). However, the rule contains an exception for “specific 

instances of a victim’s sexual behavior with respect to the person 

accused of the sexual misconduct, if offered by the defendant to 

prove consent,” so long as such evidence “is otherwise 

admissible.” Id. R. 412(b)(2). Another exception permits 

admission of evidence “whose exclusion would violate the 

defendant’s constitutional rights.” Id. R. 412(b)(3).
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20200667-CA 8 2023 UT App 34

¶10 We first note that evidence of the cooks slapping 

each other’s buttocks—included in Rallison’s identification of 

item 12 but not the district court’s—is beyond the purview of rule 

412 as it does not involve the alleged victims. To the extent that 

the district court barred this testimony, we reverse. But as to 

evidence that the alleged victims engaged in buttocks slapping 

with the cooks or with each other, we affirm the district court’s 

decision. 

¶11 Rule 412 governs admission of “evidence that directly 

refers to sexual activities or thoughts.” State v. Martin, 2002 UT 34, 

¶ 42, 44 P.3d 805 (cleaned up). Our supreme court has indicated 

“that rule 412 should be construed broadly in order to fully 

effectuate the policy considerations underlying its prohibitions.”

Id. Accordingly, rule 412 covers “all evidence that may have a 

sexual connotation for the fact finder.” State v. Tarrats, 2005 UT 50, 

¶ 22, 122 P.3d 581 (cleaned up).

A. Items 11 and 12

¶12 Rallison argues that items 11 and 12—which include “butt 

slapping,” flirting, and discussing sexual matters between and 

among the servers and cooks—do not fall under rule 412 because 

they are not evidence of “other sexual behavior” or of the alleged 

victims’ “sexual predisposition.” See Utah R. Evid. 412(a). He 

asserts that these items are “sexually innocuous.”

¶13 In State v. Martin, 2002 UT 34, 44 P.3d 805, our supreme 

court determined that evidence that the alleged victim had 

previously accepted a ride from a stranger—offered to show the 

victim’s “casual attitude toward strangers,” her “impulsiveness,” 

and her “irresponsibility”—was “sexually innocuous.” Id. ¶¶ 41–

42 (cleaned up). The court reasoned that “a jury could no more 

reasonably deduce . . . sexual act[ivity] with the stranger than it 

could conclude they played board games, built model airplanes, 

or ate sandwiches.” Id. ¶ 42.
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20200667-CA 9 2023 UT App 34

¶14 The behavior at issue here, by contrast, is not sexually 

innocuous. First, the Utah Legislature has made it clear that 

touching another person’s buttocks may constitute a sex crime. 

See, e.g., Utah Code § 76-5-404(2) (forcible sexual abuse); id. § 76-

9-702.1(1) (sexual battery); id. § 76-5-404.1(2) (sexual abuse of a 

child). Rallison is himself facing sexual battery charges for the 

same type of touching. 

¶15 Second, rule 412 covers “all evidence that may have a 

sexual connotation for the fact finder,” State v. Boyer, 2020 UT App 

23, ¶ 29, 460 P.3d 569 (cleaned up), cert. denied, 466 P.3d 1075 (Utah 

2020), and the evidence in question may have such a connotation. 

Flirting satisfies this standard because it may imply sexual 

attraction or desire and can be interpreted as an invitation for 

further contact, including sexual contact. See Ferencich v. Merritt, 

79 F. App’x 408, 415 (10th Cir. 2003) (“[A supervisor’s] testimony 

that he interpreted plaintiff’s act of showing him her tongue ring 

as flirting, because of its perceived sexual use, was relevant to 

both the issue of whether his sexual conduct was ‘unwelcome,’ 

and whether [personnel director and employer] should have 

known that plaintiff was being harassed.”). Sexual comments 

inherently carry sexual connotations. And while we can perhaps 

envision an isolated context in which a buttocks slap might, to 

some, be considered non-sexual (e.g., a “way to go” bump of 

encouragement in the middle of a sporting event), we think it safe 

to say that buttocks slapping—especially in a non-athletic 

workplace—almost always carries a sexual connotation. See Bearer 

v. Teva Pharms. USA, Inc., No. 19-5415, 2021 WL 4145053, at *27 

(E.D. Pa. Sept. 8, 2021) (discussing an executive’s slapping of an 

employee’s buttocks as “inappropriately and offensively 

touch[ing] an intimate area of her body” and reasoning that 

“undoubtedly, such conduct is physically threatening and 

humiliating” (cleaned up)); Vergara v. Keyes, No. 3:20-cv-01460, 

2020 WL 7778080, at *1–2 (D.N.J. Dec. 30, 2020) (discussing as 

alleged sexual battery a co-worker slapping an officer’s buttocks). 

Such behavior is undeniably more sexually charged than getting 
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20200667-CA 10 2023 UT App 34

a ride from a stranger, as in Martin. Furthermore, touching a 

person’s private or intimate body parts at work may very well be 

grounds for a sexual harassment claim if nonconsensual. See 

generally Wilcox v. Corrections Corp. of Am., 892 F.3d 1283, 1285–86 

(11th Cir. 2018) (discussing employee’s sexual harassment claim 

where coworker “slapped [employee] on the buttocks twice”). 

And buttocks are generally considered to be private or intimate 

body parts. See, e.g., Bearer, 2021 WL 4145053, at *27 (calling female 

employee’s buttocks “an intimate area of her body”). The fact that

some of the slapping at issue in item 11 may have been consensual 

does not make it nonsexual. 

¶16 Third, the alleged victims’ testimony supports the 

sexualized nature of the buttocks slapping. As to the cooks 

slapping the servers’ buttocks, multiple servers testified that it 

made them uncomfortable, presumably because of the intimate 

nature of the touching. One server testified that she was 

uncomfortable with the cooks doing it and she “told them off, told 

them it was not okay,” after which the cooks stopped. Another 

testified that she was “not at all” okay with it, stating, “I was like, 

don’t do that. I’m very uncomfortable about that. I don’t like 

that.” And a third testified that she “let [the cook] know that it 

wasn’t okay.” On the other hand, the testimony is clear that the 

women were okay with the intra-server slapping described in 

item 11.

5 But their comfort with it appears to stem from the 

5. Rallison would like us to apply State v. Denos, 2013 UT App 192, 

319 P.3d 699, cert. denied, 329 P.3d 36 (Utah 2014), to find that 

buttocks slapping by the cooks against the servers falls outside of 

rule 412(b)(2) because it is not the alleged victims’ sexual 

behavior. Id. ¶ 16. In Denos, the court concluded that evidence that 

the defendant entered the room where the alleged victim was 

sleeping to stop another man attempting to assault her was not 

barred by rule 412 because it did “not relate to [the victim’s] 

sexual behavior or predisposition.” Id. But Rallison himself 

(continued...)
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20200667-CA 11 2023 UT App 34

intimacy of their friendship and not because the activity was nonsexual: one server stated that she was okay with it because they 

were “best friends,” and at least one server testified that not all 

women employees were involved in such touching, saying that it 

was “a select few because we’re close friends.” She also testified 

that these close friends sometimes touched each other’s breasts,

again suggesting that they found the touching acceptable not 

because it was categorically nonsexual but because they were 

intimate friends.

¶17 For these reasons, items 11 and 12 are not sexually 

innocuous. Rather, they are evidence of “other sexual behavior” 

or “sexual predisposition,” see Utah R. Evid. 412(a), and the 

district court was correct in determining that these items fall 

within the purview of rule 412(a).

¶18 Nonetheless, Rallison argues that items 11 and 12 are 

admissible under rule 412(b)(3) because their exclusion would 

violate his constitutional rights. We disagree. Rule 412(b)(3) 

provides an exception for rule 412 testimony “whose exclusion 

would violate the defendant’s constitutional rights.” Id.

R. 412(b)(3). And “the Constitution guarantees criminal 

defendants a meaningful opportunity to present a complete

presents “‘butt-slapping’ amongst the staff”—including “some 

female servers slapping male cooks’ buttocks”—as “routine” and 

claims that it “goes to the heart of the culture and climate” of the 

restaurant. If the slapping was reciprocal, Denos would not apply 

because the slapping would include the alleged victims’ sexual 

behavior. And although the testimony as to whether servers 

actually slapped cooks’ buttocks is limited, Rallison cannot have 

his cake and eat it too by claiming that it was reciprocal while 

simultaneously implying that cook-on-server slapping was onesided assault like in Denos. Therefore, we do not apply Denos. If 

the factual development differs at trial, the district court may find 

Denos applicable. 
State v. Rallison

20200667-CA 12 2023 UT App 34

defense.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006)

(cleaned up); State v. Robinson, 2018 UT App 103, ¶ 37, 427 P.3d 

474, cert. denied, 432 P.3d 1226 (Utah 2018). But this exception 

applies only where exclusion of the evidence “foreclose[s] any 

meaningful avenue for presenting a defendant’s fundamental 

defense to charges against him.” See State v. Thornton, 2017 UT 9, 

¶ 74, 391 P.3d 1016; see also State v. Nunez-Vasquez, 2020 UT App 

98, ¶ 32, 468 P.3d 585, cert. denied, 474 P.3d 945 (Utah 2020). That 

is not the case here.

¶19 Rallison asserts that items 11 and 12 address a critical

element of sexual battery: that “the actor’s conduct is under 

circumstances the actor knows or should know will likely cause 

affront or alarm to the person touched.” See Utah Code § 76-9-

702.1(1). Rallison argues that “touching that would ‘likely cause 

affront or alarm’ in some instances may not ‘likely cause affront 

or alarm’ in every instance,” see id., and that items 11 and 12 

“demonstrated that the workplace culture was playful and 

included employees touching one another and slapping each 

other on the buttocks in the context of horseplay and joking 

around.” Accordingly, Rallison says he “can argue that the State 

did not meet its burden of showing that he ‘knew or should have 

known certain conduct was likely to cause affront or alarm,’” see 

id., but he can do so only by “pointing to the circumstances under 

which the touching occurred.” If he cannot show that “the staff 

routinely touched and slapped one another’s buttocks, including 

in joking and horseplay,” he asserts, he will be “effectively 

bar[red] . . . from mounting a defense to these charges.”

¶20 We are not persuaded. For item 12, Rallison fails to 

articulate how the servers flirting and making sexual comments 

to people other than Rallison could have impacted how the 

servers viewed touching from him. Regarding the cooks slapping 

servers’ buttocks, the servers’ testimony made it clear that the 

alleged victims were uncomfortable with the touching. See supra

¶ 16. Rallison does not explain how—in the face of this
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20200667-CA 13 2023 UT App 34

testimony—this slapping could be interpreted as mere horseplay 

and support his defense. And Rallison provides no argument for 

why buttocks slapping from him would not cause affront or alarm 

where servers testified that buttocks slapping from the cooks did

so. Furthermore, as to the existence of buttocks slapping at work, 

Rallison is free to offer testimony of such activity that does not 

involve the alleged victims, including buttocks slapping among

the male cooks. Therefore, this testimony is not essential to 

Rallison’s ability to present a complete defense and does not come 

in under the rule 412(b)(3) exception.

¶21 Likewise, item 11 does not qualify for this exception. 

Rallison fails to explain how the servers’ comfort with item 11—

buttocks slapping among close friends and peers—translates to 

comfort with him slapping their buttocks. Rallison was their 

significantly older boss.6 The power differential between Rallison 

as owner-operator and the servers negates the homogeneity of 

item 11 necessary for the conclusion Rallison proposes. As one 

server testified about server-on-server buttocks slapping, “That’s 

different. They’re my best friends. . . . It’s not my boss.” Given the 

servers’ testimony and the undeniable differences in 

circumstances between the servers’ slapping and Rallison’s, 

Rallison’s argument that item 11 indicates a playful work 

environment essential to his defense falls flat. The circumstances 

between the two are so different that no reasonable juror could 

believe that item 11 offers the defense Rallison proposes. While 

Rallison is free to testify that he believed his actions would not 

cause affront or alarm, the testimony of the servers with respect 

to their slapping of each other’s buttocks does not support this 

and therefore cannot be essential to Rallison’s defense. 

6. At the time of the preliminary hearing, the alleged victims 

ranged in age from seventeen to twenty-one. Rallison was thirtythree. The youngest of the alleged victims testified that she 

believed Rallison began slapping her buttocks when she was still 

fifteen.
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Accordingly, the district court did not abuse its discretion in 

concluding that item 11 also fails to qualify for the exception 

under rule 412(b)(3). 

B. Item 9

¶22 The district court excluded this item—the text exchange 

between Tiffany and her friend before the shift of the alleged

parking lot assault—because it concluded that the exchange did 

“not concern the alleged victim’s sexual behavior with respect to 

[Rallison] because [Rallison] was not involved in the 

communications.” In so ruling, the district court misapplied the 

exception under rule 412(b)(2). The plain language of the rule 

does not require the “person accused of the sexual misconduct” 

to be aware of the “specific instances of a victim’s sexual behavior 

with respect to th[at] person.” Utah R. Evid. 412(b)(2). See also

State v. Varlas, 787 S.E.2d 670, 678 (W. Va. 2016) (admitting text 

messages sent by a third party to the alleged victim that discussed 

sexual conduct between the defendant and the alleged victim). 

We do not find any requirement of the person’s awareness in the 

language “with respect to.” Accordingly, the district court erred 

in ruling that rule 412(b)(2)’s exception did not apply merely

because Rallison was not aware of the messages at the time of the 

alleged assault.

¶23 The State argues that this item should be excluded 

because it does not qualify as a “specific instance[] of a victim’s 

sexual behavior” with respect to Rallison. See Utah R. Evid. 

412(b)(2). While the rule 412(b)(2) exception might 

permit admission of “statements in which the alleged victim 

expressed an intent to engage in sexual intercourse with the 

accused, or voiced sexual fantasies involving the specific 

accused,” R. Collin Mangrum & Dee Benson, Mangrum & Benson 

on Utah Evidence, 1 Utah Prac. Rule 412, Westlaw (updated Nov. 

2022), the State asserts that the statement at issue was merely a 

“cynical anecdote” from Tiffany, not an expression of intent to 
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20200667-CA 15 2023 UT App 34

engage in sexual activity with Rallison or a sexual fantasy about 

him. If anything, the State argues, this item is “ambiguous about 

any sexual intent or fantasizing regarding Rallison.” We too do 

not read item 9 as expressing Tiffany’s intent to engage in sexual 

intercourse with Rallison—we acknowledge that its discussion of 

intercourse is entirely hypothetical, and we read the text exchange 

as a whole as quite damning to Rallison—but we believe the State 

applies this exception too narrowly. The text exchange clearly 

discusses “specific instances” of hypothetical sexual behavior 

between Tiffany and Rallison, as well as Tiffany’s thoughts—even 

if made in jest and even if negative—about potential sexual 

behavior with Rallison. Therefore, we find unpersuasive the 

State’s position that this item does not fall under rule 412(b)(2)’s 

exception.

¶24 Alternatively, the State argues that this item should be 

excluded under rule 403 because it has low probative value and 

carries a high risk of unfair prejudice. We consider this argument 

in our discussion of rule 403 below. See infra ¶¶ 36–38. Because the 

district court applied the wrong legal standard as to this item, it 

exceeded its discretion, and we reverse its ruling that item 9 was 

inadmissible under rule 412. 

II. Rule 403: Items 5, 9, 10, and 17

¶25 Evidence that comes within one of the exceptions to rule 

412 must still pass muster under rule 403. See Utah R. Evid. 412(b); 

State v. Beverly, 2018 UT 60, ¶ 55, 435 P.3d 160 (“Rule 412 explicitly 

provides that before any evidence is admitted through one of 

its exceptions, it must also be ‘otherwise admissible’ under the 

rules of evidence. So a defendant attempting to admit 

evidence under rule 412(b)(1) must also meet the requirements of

rule 403.” (cleaned up)). Under rule 403, “[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 
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20200667-CA 16 2023 UT App 34

delay, wasting time, or needlessly presenting cumulative 

evidence.” Utah R. Evid. 403.7

7. We acknowledge that our supreme court has stated that 

“[w]hen applying rule 403 to the admissibility of a rape victim’s 

past sexual conduct, there is a presumption of inadmissibility,” 

State v. Boyd, 2001 UT 30, ¶ 41, 25 P.3d 985, such that this 

“evidence is admissible only when the court finds under the 

circumstances of the particular case such evidence is relevant to a 

material factual dispute and its probative value outweighs the 

inherent danger[s]” listed in rule 403, id. (quoting State v. Williams,

773 P.2d 1368, 1370 (Utah 1989)); see also State v. Beverly, 2018 UT 

60, ¶ 55, 435 P.3d 160; State v. Dibello, 780 P.2d 1221, 1229 (Utah 

1989); State v. Ashby, 2015 UT App 169, ¶ 32, 357 P.3d 554, cert.

denied, 363 P.3d 523 (Utah 2015); State v. Bravo, 2015 UT App 17, 

¶ 19, 343 P.3d 306, cert. denied, 352 P.3d 106 (Utah 2015). 

However, our supreme court has recently “repeatedly 

eschewed extra-textual or contra-textual judicial glosses on the 

Utah Rules of Evidence.” State v. Biel, 2021 UT 8, ¶ 25, 484 P.3d 

1172; see, e.g., State v. Lowther, 2017 UT 34, ¶ 30 n.40, 398 P.3d 1032 

(pointing “to the plain language of rule 404(b) for the standard for 

the admissibility of evidence” and repudiating a prior 

characterization of rule 404(b) as “inclusionary”). And an 

application of rule 403 that presumes inadmissibility for rule 412 

evidence is not indicated in the plain language of rule 403, which 

states that evidence may be excluded “if its probative value is 

substantially outweighed by a danger of one or more of the 

following.” Utah R. Evid. 403. Accordingly, we are not certain 

whether this presumption continues to be applicable, and we wait 

for the supreme court to weigh in on this issue.

However, on the facts before us, we are satisfied that the 

probative value of these items outweighs their associated risks 

such that the outcome of this case does not rely on our application 

of a presumption one way or the other.
State v. Rallison

20200667-CA 17 2023 UT App 34

¶26 Evidence is unfairly prejudicial where it “has an undue 

tendency to suggest decision upon an improper basis.” State v. 

Barney, 2018 UT App 159, ¶ 20, 436 P.3d 231 (cleaned up).

Evidence may also cause unfair prejudice when it “reveal[s]

intimate and potentially embarrassing details” about victims. 

State v. Bravo, 2015 UT App 17, ¶ 41, 343 P.3d 306, cert. denied, 352 

P.3d 106 (Utah 2015). And in particular, sexual evidence 

presented under rule 412(b)(2) may have a “propensity . . . to 

distort the jury’s deliberative process, thereby confusing or 

misleading the jury.” Id. ¶ 21 (cleaned up).

¶27 On the other hand, “the probative value of prior sexual 

history may be greater when the prior acts are similar to the 

charged conduct.” Id. ¶ 29. This is because a person is “more likely 

to consent to the kind of sexual relations [that person] has had 

with a partner in the past.” State v. Richardson, 2013 UT 50, ¶ 26,

308 P.3d 526. 

A. Items 5 and 10

¶28 For items 5 and 10, we conclude that the district court 

exceeded its discretion in excluding purported evidence that the 

servers showed Rallison nude selfies and evidence that Tiffany 

gave Rallison the password to the app containing nude selfies 

shortly before the alleged assault in the parking lot. First, we note 

that we agree that these items fall under the exception in rule 

412(b)(2) because they include allegations that the servers shared 

sexually explicit images with Rallison, the person accused of the 

sexual misconduct.8 Moving to the rule 403 analysis, the district 

8. Rallison also asserts that the alleged victims shared sexually 

explicit materials with the cooks. Such evidence does not qualify 

for the exception in rule 412(b)(2) because it does not involve 

Rallison. Therefore, it must be excluded under rule 412. Our 

holding as regards item 5 being admissible does not apply to this 

purported evidence, which was properly excluded. 
State v. Rallison

20200667-CA 18 2023 UT App 34

court ruled these items inadmissible “because the probative value 

of any alleged grant of permission to view nude selfies . . . is 

substantially outweighed by the danger that any such evidence 

will cause unfair prejudice, confuse the issues, or mislead the 

jury.” The court reasoned that “[t]his evidence may unfairly 

signify to the jury that granting permission to view selfies 

amounts to permission to forcibly being touch[ed] without 

consent” and that “[n]o reasonable person could [so] conclude.”

We disagree with the district court that the risk of harm outweighs 

the probative value, and we reverse this ruling.

¶29 This evidence has some probative value. Evidence that one 

or more alleged victims shared sexually explicit material with 

Rallison may inform the jury’s understanding of the relationships 

between Rallison and the alleged victims. This is important 

because, to convict Rallison of forcible sexual abuse, the State 

must prove that Rallison’s touching was done “without the 

consent” of the other individual. See Utah Code § 76-5-404(2). 

While we agree with the district court that sharing sexually 

explicit material does not necessarily convey consent for touching

generally or specifically, we think that this evidence has some use 

for the jury in determining what type of sexual relationship with 

Rallison—if any—the alleged victims consented to. This is 

particularly true for item 10 given that it occurred in close 

temporal proximity to the alleged parking lot assault.

¶30 We acknowledge that there is some risk of prejudice due to 

the embarrassing nature of sharing nude selfies with one’s older, 

married boss. But this information is not as intimate or

embarrassing as some rule 412 evidence that has been excluded

under rule 403. See, e.g., State v. Boyd, 2001 UT 30, ¶¶ 33, 43, 25 

P.3d 985 (excluding evidence of previous sexual intercourse on 

the evening in question where it had “little probative value” to 

the question of consent as it was not alleged to be “rough” and 

would not explain bruising); Bravo, 2015 UT App 17, ¶ 41 

(concluding accuser’s consensual anal sex with ex-husband after 
State v. Rallison

20200667-CA 19 2023 UT App 34

their divorce carried “significant danger of unfair prejudice” 

because it was unconventional). Furthermore, Rallison does not 

seek to admit as exhibits what was allegedly shared with him—

which would undoubtedly be more embarrassing for the alleged 

victims—but merely the alleged fact that they shared sexually 

explicit material with him. And we think that evidence that a 

person has shared pictures, even explicit ones, is here—and likely, 

as a rule—less intimate, embarrassing, and prone to causing 

unfair prejudice than evidence of engaging in anal sex or sexual 

intercourse. See Richardson, 2013 UT 50, ¶¶ 21, 31; Boyd, 2001 UT 

30, ¶¶ 33, 43; Bravo, 2015 UT App 17, ¶ 41.

¶31 Additionally, the servers’ testimonies as to the 

circumstances of the sharing may reduce the risk of unfair 

prejudice or confusion of the issues. Indeed, Tiffany testified at 

the preliminary hearing that Rallison, in his position of authority 

as her boss, pressured her into sharing the password to the folder 

containing her photos; this fact may reduce embarrassment 

associated with the sharing and comports with an image of the 

work environment Rallison created—and the sexual activity he 

allegedly engaged in with the servers therein—as oppressive 

rather than consensual. At this time, there is no actual evidence in 

the record of other servers sharing nude selfies with Rallison, but 

if it arises, any involved servers would also be able to testify to the 

circumstances. Furthermore, we are confident that an appropriate 

limiting instruction can prevent jury confusion on this topic. 

¶32 Accordingly, we conclude that the district court exceeded 

its discretion in excluding these items because their probative 

value outweighs the risks of unfair prejudice, confusion, or 

misleading the jury. The court was unreasonable in ruling 

otherwise because it erroneously believed that the jury could not 

distinguish between the actions described in these items and 

being forcibly touched. We believe that a jury can so distinguish, 

particularly with a limiting instruction, and we determine that the 

jury should be able to hear this evidence.
State v. Rallison

20200667-CA 20 2023 UT App 34

B. Item 17

¶33 Likewise, we conclude that the district court exceeded its 

discretion in excluding item 17. This item comprises evidence that 

one server initially viewed the buttocks slapping and “messing 

around” between herself and Rallison as mutual and consensual. 

First, we must determine whether item 17 qualifies for an 

exception to rule 412, and we determine that it does. For the 

reasons explained above, see supra ¶¶ 14–17, the buttocks slapping 

is “evidence of specific instances of a victim’s sexual behavior 

with respect to the person accused of sexual misconduct,” and it 

therefore qualifies for the exception in rule 412(b)(2). 

¶34 Next, we consider whether it was properly excluded under 

rule 403, and we conclude that it was not. This evidence has high 

probative value. Rallison is charged with slapping the buttocks of 

the server whose testimony is at issue, and her testimony indicates 

that at some point their buttocks slapping was mutual and 

consensual. The district court excluded this evidence based on its 

belief that the relevant charge did not involve buttocks slapping, 

but it did.

9 Because “the probative value of prior sexual history 

9. The district court asserted that “the State charged Defendant 

with sexual battery ‘for [allegedly] rubbing his penis against the 

[alleged] victim’s buttocks, choking [her], and grabbing [her] bare 

breasts,’ not ‘for slapping this victim’s buttocks.’” (Alterations in 

original.) The court relied on language from the State’s 

memorandum opposing Rallison’s rule 412 motion. Accordingly, 

the court reasoned that “[t]his evidence may unfairly signify to 

the jury that engaging in butt touching amounts to permission to 

commit the acts Defendant is accused of. . . . It does not.” 

However, the State indicated at the preliminary hearing that this 

count was based on Rallison touching this server’s buttocks after 

she no longer consented. And the State’s brief cites the server’s

testimony that Rallison “continued to slap her on the butt after 

(continued...)
State v. Rallison

20200667-CA 21 2023 UT App 34

may be greater when the prior acts are similar to the charged 

conduct,” Bravo, 2015 UT App 17, ¶ 29, and because a person is 

“more likely to consent to the kind of sexual relations [that 

person] has had with a partner in the past,” Richardson, 2013 UT 

50, ¶ 26, the probative value of this evidence is particularly high. 

The server’s acknowledged initial consent to buttocks slapping is 

material to whether she continued to consent to that same action 

throughout her employment.

¶35 While there may be some negligible risk of prejudice or 

confusion, here the probative value substantially outweighs any 

such risk. Reciprocal buttocks slapping is far less embarrassing 

than other sexual evidence determined to be properly excluded in 

other cases. See, e.g., Boyd, 2001 UT 30, ¶¶ 33, 43; Bravo, 2015 UT 

App 17, ¶ 41. And there should be little confusion for the jury that 

the question is whether and when consent was withdrawn.

Accordingly, it was unreasonable for the district court to exclude 

item 17, and in doing so it exceeded its discretion. 

C. Item 9

¶36 In addition to its unavailing argument that Item 9 should 

be excluded under rule 412, the State presents an alternative 

argument that this item should be excluded under rule 403 

because it has low probative value and carries a high risk of unfair 

prejudice. The State applies our analysis in State v. Bravo, 2015 UT 

App 17, 343 P.3d 306, cert. denied, 352 P.3d 106 (Utah 2015),

indicating that probative value increases when evidence deals 

with activity similar to that alleged, id. ¶¶ 29, 40–41, and asserts 

that there is “a disconnect between the hypothetical sexual 

intercourse [Tiffany] texted about and Rallison’s alleged act of 

following [her] out to her car after a work shift, grabbing her 

breasts from behind, and then reaching under her shirt and bra to 

she told him it made her uncomfortable” as supporting evidence 

on this charge.
State v. Rallison

20200667-CA 22 2023 UT App 34

twist her nipples over her objection.” The State argues that this 

item’s “low probative value is significantly outweighed by its 

potential for unfair prejudice” because it could “unfairly signify 

to the jury” that Tiffany’s “frank sexual communications with her 

friend somehow implied consent to being assaulted by Rallison” 

and because it would reveal intimate and potentially 

embarrassing information: “private communications of a frank, 

sexual nature about her married boss.” The State declares that 

“[a]dmission of evidence under rule 412(b)(2) ‘necessarily 

includes a determination that the probative value of the evidence 

outweighs the danger of unfair prejudice, confusion of the issues, 

or misleading the jury.’” Id. ¶ 26. And it asserts that this item’s 

“low probative value is substantially outweighed by the danger 

of unfair prejudice or confusing the jury.”

¶37 We disagree with the State that this item has low probative 

value. Tiffany’s discussion with her friend on the night of the 

alleged parking lot assault of hypothetical sexual behavior with 

respect to Rallison is probative of whether she consented to 

engage in sexual behavior with Rallison later that night. And 

Bravo does not negate an item’s probative value simply because 

the behavior in the evidence is not identical to that which was 

alleged. Besides, in the text exchange, Tiffany tells her friend that 

Rallison roughly touched her breasts and made her nipple bleed, 

and Rallison is accused of nonconsensual touching of her breasts, 

so there is high similarity on this point. And Tiffany’s expressed 

fear of Rallison and negative feelings about his touching during a 

previous shift will inform a jury’s understanding of whether 

Tiffany consented to Rallison touching her that night.

¶38 Additionally, several circumstances reduce the risk of 

embarrassing Tiffany by admitting the text exchange. First, the 

exchange begins with Tiffany expressing her fear of working with 

Rallison that night because she believes he may hurt her, and she 

also suggests that Rallison is a sexual predator. There is nothing 

embarrassing about this, and we believe this is likely to make the 
State v. Rallison

20200667-CA 23 2023 UT App 34

jury more sympathetic to Tiffany and more likely to believe that 

she did not report to work wanting Rallison to touch her. Then, in 

response to the friend laughing at Tiffany’s fear, Tiffany explains 

that Rallison was “really rough” during a previous shift and made 

her nipple bleed. This is also not likely to cause much 

embarrassment or to have any effect other than to harm Rallison’s 

case. The jury will then see that the discussion of hypothetical 

sexual activity with Rallison is initiated by the friend—who is also 

the one who calls Rallison “hot”—and that the friend uses crude 

imagery associated with herself—not Tiffany—related to

hypothetical sexual activity with Rallison. Tiffany’s response is 

ambiguous at best as far as expressing a desire to engage in sexual 

activity with Rallison, and it conveys a fear that he would force 

her to engage in sexual activity or fire her. In other words, while 

the fact of discussing such hypothetical sexual activity could be 

embarrassing, the embarrassment here lies mostly at the feet of 

Tiffany’s friend, who is not one of the alleged victims. 

Accordingly, we feel that the risk of embarrassment to Tiffany is 

low, while the probative value to the issue of consent of the jury 

hearing Tiffany’s fear, pain, and reluctance to work with Rallison 

is higher. Therefore, while we acknowledge that this item does 

reveal intimate information, we conclude that its probative value 

outweighs the risk of unfair prejudice. As to a risk of confusion, 

we are confident that an appropriate limiting instruction can 

guide the jury’s proper use of this evidence. Thus, we decline the 

State’s invitation to exclude this item on these alternative 

grounds.

CONCLUSION

¶39 We agree with the district court that the admission of items 

11 and 12—other than evidence that the cooks slapped each other 

on the buttocks—and evidence that servers showed nude selfies 

to the cooks is barred by rule 412(a) of the Utah Rules of Evidence. 

However, we conclude that the district court exceeded its 
State v. Rallison

20200667-CA 24 2023 UT App 34

discretion in excluding items 9, 10, and 17—along with evidence 

in item 5 that the alleged victims showed Rallison nude selfies and 

evidence in item 12 of slapping between the cooks—and we 

reverse those rulings.