* The court has rewritten paragraph 30 and footnotes 39 and 40. AMENDED OPINION*

This opinion is subject to revision before final

p ublication in the Pacific Reporter

201 7 UT 34

IN THE



## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

S TATE OF U TAH
, Petitioner,

v.

J OHN M ARCUS L OWTHER
, Respondent

.

No. 20150803

Filed June 19 , 2017

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake

The Honorable Randall N. Skanchy

No. 111900725

Attorneys:

Sean D. Reyes, Att ’ y Gen., Tera J. Peterson , Asst. Solic. Gen.,

Salt Lake City, for petitioner

Edward J. Stone, Salt Lake City, for respondent

C HIEF J USTICE D URRANT authored the opinion of the Court, in which

A SSOCIATE C HIEF J USTICE L EE
, J USTICE D URHAM
, J USTICE H IMONAS , and
J UDGE C ONNORS joined.

Having r ecused himself, J USTICE P EARCE did not participate herein;

S ECOND D ISTRICT C OURT J UDGE D AVID M. C ONNORS sat.S TATE v. L OWTHER

Opinion of the Court

2 C HIEF J USTICE D URRANT , opinion of the Court:

Introduction

¶ 1 This case requires us to determine whether the doctrine of chances’ four foundational requirements, outlined in State v. Verde

, 1 apply to both rule 403 and rule 404(b) of the Utah Rules of Evidence. The court of appeals concluded that Verde ’s foundati onal requirements displaced the factors set forth in State v. Shickles 2 for purposes of a rule 403 balancing test. 3 As discussed below, the court of appeals erred. In applying rule 403, a court is not required to consider any set of factors or elements, but is bound by the language
of the rule. In this case, the district court did not abuse its discretion by failing to consider the Verde requirements. It did, however, abuse its discretion by mechanically applying the Shickles factors to assess the probative valu e of the State’s rule 404(b) evidence. We therefore affirm the court of appeals’ ultimate conclusion that the district court’s evidentiary ruling was erroneous, but under different reasoning. As defendant John Marcus Lowther has ultimately prevailed on app eal, he is entitled to withdraw his guilty plea

. Background

¶ 2 This case deals with the alleged rape or object rape of four
women: A.P., C.H., C.R., and K.S. Each woman has identified Mr. Lowther as her attacker, and the State has filed charges against him

fo r each alleged crime. After the district court severed the cases, the State elected to try Mr. Lowther first on the charge of raping K.S. And in prosecuting that case, the State moved to introduce the testimony of the other women under rule 404(b) of the U tah Rules of

Evidence and the doctrine of chances in order to show that K.S. did

not consent to sexual intercourse wi th Mr. Lowther. After an evidentiary hearing, the district court granted the State’s motion. Mr.

Lowther entered a conditional guilty plea to the rapes of K.S. and C.H., in exchange for the State’s agreement to dismiss the charges regarding A.P. and C.R. His plea reserved the right to challenge the district court’s decision to admit the testimony of A.P., C.H ., and C.R. Mr. Lowther filed a timely appeal, and the court of appeals concluded that the district court erred in its application of the doctrine of chances and in its decision to admit the testimony of A.P.

_____________________________________________________________

1 2012 UT 60, 296 P.3d 673.

2 760 P.2d 291 (Utah 1988).

3 State v. Lowther , 2015 UT App 180, ¶ 22, 356 P.3d 173.Cite as: 2017 UT 34

Opinion of the Court

3 We granted certiorari to determine whether the court of appeals properly applied the doctrine of chances. As answering this question depends on knowledge of the underlying case, we first describe the factual background and then describe the procedural history of this

case

. We begin with testimony regar ding the alleged rape at issue,
K.S.’s, and then describe the testimony of the other three witnesses

the State sought to introduce under the doctrine of chances. 4

The Alleged Rape of K.S.

¶ 3 O n September 23, 2010, 20

- year

- old K.S. and her friend, S.H.,

attend ed a movie premier. Before going to the movie, K.S. consumed

“ two or three shots worth” of vodka. During the movie, she also

drank “a couple sips” of alcohol from a friend’s flask. After the
movie, K.S. and S.H. went to the Red Lion Hotel, and while there,
K.S. started, but did not finish, a beer. After about an hour, K.S. and S.H. were tired. K.S. decided to stay the night at S.H.’s home, which she had done on previous occasions. Neither woman felt comfortable driving, so K.S. called her friend Aaron to pi ck them up and drive

them to S.H.’s house.

¶ 4 Aaron and two other men arrived at about 1:30 or 2:00 a.m.

in a car driven by Mr. Lowther . K.S. had met Mr. Lowther on a previous occasion through a mutual friend. On the drive home,

Mr. Lowther insisted on taking the male passengers home first. He then drove K.S. and S.H. to S.H.’s house and, upon arriving, K.S. immediately went downstairs into a basement bedroom and climbed into bed. Still upstairs, Mr. Lowther asked S.H. if he could stay the night. At first she told him no, but eventually she made up a bed on the couch for him. She then joined K.S. in the basement bedroom to sleep. Soon thereafter, Mr. Lowther entered the bedroom and asked

S.H. if he could lie between them. She told him no but he climbed in

anywa y and soon began touching S.H. ’s breasts and vagina over her clothes. She pushed him away, got out of bed, and went upstairs.

¶ 5 K.S. was still sleeping during this time, but she eventually awoke to find Mr. Lowther’s penis “inside” her. He was lying

behind h er and holding her down by reaching across her body to grab her wrist. She pushed him away and, after a brief struggle, left the room. She went to the police station later that day and reported the rape. The police had K.S. go to the hospital for a forensi c sexu al

_____________________________________________________________

4 The facts in this case are taken from testimon y offered at the preliminary hearing and the evidentiary hearing.S TATE v. L OWTHER

Opinion of the Court

4 assault examination, and Mr. Lowther’s DNA was matched to the

detected semen.

The Alleged Rape of A.P.

¶ 6 On December 1, 2009, 17

- year

- old A.P. and her boyfriend attended a party at a home in Draper, Utah. Mr. Lowther also attended the party. Thro ughout the night, A.P. consumed approximately eight shots of vodka in a two

- hour period. She became highly intoxicated and began to vomit. Her boyfriend escorted her into a basement computer room where she could lie

down. While in the computer room, she continued to vomit and passed in and out of consciousness. Her boyfriend eventually left to buy her some Sprite and food from a store.

¶ 7 Sometime after A.P.’s boyfriend left, Mr. Lowther entered

the room . At some point, the d oor was locked from the inside . When
A.P. awoke, she told Mr. Lowther that she was sick and that her boyfriend had gone to the store for her. After this brief exchange, she lost consciousness. When she next awoke, Mr. Lowther was lying at her side and “dry humping” her. She told him “no” twice, but again
lost consciousness. When she awoke the third time, Mr. Lowther was on top of her with his penis inside her. She repeatedly told him to stop and tried to “fight him off,” but he held her down. She again

lost consciousness. When she eventually awoke, her “pants were at [her] ankles” and Mr. Lowther was lying next to her naked. She got up and left the room.

The Alleged Rape of C.H.

¶ 8 Nearly two months later, on February 1 4 , 2010, 18

- year

- old

C.H. and her roommate held a party at their apartment. A mutual
friend invited Mr. Lowther, whom C.H. had never met. C.H.’s boyfriend also attended the party. Throughout the night those in the apartment drank beer, and between 8:00 p.m. and 5:00 a.m., C.H.

drank ten to fifteen beers, becoming “very intoxicated.” 5 At some point during the evening, she broke up with her boyfriend. Afterward, Mr. Lowther became “sympathetic” and tried to comfort

her.

_____________________________________________________________

5 When asked at the preliminary hearing to identify her level of

intoxication on a scale of one to ten

— one being barely intoxicated and ten being intoxication requiring hospitalization

— C.H. placed

herself at a seven or eight.Cite as: 2017 UT 34

Opinion of the Court

5 ¶ 9 At about 5:00 a.m., C.H. went to her bedroom and either fe l l asleep or blacked o ut. Four guest s, including Mr. Lowther, were still in the living room. Sometime thereafter, she awoke to find Mr. Lowther naked and “having sex” with her. She told him to stop and tried “as hard” as she could for several minutes to push him off.

After she struggled two or three minutes, he fin ally got up and left

the room. C.H. went into her roommate ’s bedroom, which adjoined her own, and called the police. After performing a sexual assault examination, the police we re unable to recover any semen.

The Alleg ed Object Rape of C.R.

¶ 10 Approximately five months later, on July 19, 2010, 20

- year

old C.R. and her boyfriend invited Mr. Lowther and another friend to their apartment for drinks. C.R.’s boyfriend had been friends with Mr. Lowther for over a year. The group drank vodka, and C.R. became “fairly intoxicated,” having had five or six shots. 6 Her boyfriend and Mr. Lowther drank more vodka than her, and before she went to bed, she saw Mr. Lowther lying on her counter throwing up into the sink.

¶ 11 Sometime after C.R. and her boyfriend went to bed, she awoke to find Mr. Lowther sitting on top of her legs

, reaching up through one leg of her shorts

, and penetrating her vagina with his fingers. She kicked him off with her l egs and told him to “go home.” He immediately lef t, and she reported the assault to police two

months later when she learned that her best fr iend

— K.S.

— had also been raped by Mr. Lowther.

Proceedings Below

¶ 12 The State filed an information that included charges for the rapes of A.P., C.H., and K.S., and a charge for the object rape of C.R. The information also charged Mr. Lowther with two counts of

forcible sexual abuse of S.H.

, b ut those charges were eventually dropped because S.H. would not cooperate in the prosecution. After the State filed the information, Mr. Lowther moved to sever the rape

counts from each other and from the object rape count, and the district court granted the motion.

¶ 13 T he State c hose to first try Mr. Lowther for the rape of K.S. and filed notice under rule 404(b) of the Utah Rules of Evidence of its intent to introduce the testimony of A.P., C.H., and C.R. It argued

_____________________________________________________________

6 She placed her level of intoxication between five and six on a scale from one to ten at the time she went to bed.S TATE v. L OWTHER

Opinion of the Court

6 that the victims’ testimony regarding Mr. Lowther’s prior bad act s would be admissible under the doctrine of chances, adopted by this

court in State v. Verde

, 7 to show that K.S. did not consent to sexual

intercourse with Mr. Lowther. 8

¶ 14 That doctrine “is a theory of logical relevance that ‘rests on the objective improbabi lity of the same rare misfortune befalling one

individual over and over.’” 9 Evidence of prior bad acts is admissible under the doctrine of chances only if four foundational requirements are satisfied: (1) materiality, (2) similarity, (3) independence, and (4) frequency. 10 The State relied on this doctrine to show that it is objectively improbable that K.S. consented to sexual intercourse where three other witnesses have alleged that Mr. Lowther raped them in a manner similar to the way in which he allegedly raped K.S.

¶ 15 After an evidentiary hearing, the district court concluded

that the “ introduction of the [testimony of A.P., C.H., and C.R.] against Mr. Lowther [ w as ] offered for a proper, non

- character purpose, namely the ‘doctrine of chances.’” After assessin g the evidence under 404(b), the district court applied the Shickles factors to conduct rule 403’s balancing test. Those factors aid courts in applying rule 403. Specifically, they encourage courts to look to

[1] the strength of the evidence as to the com mission of the other crime, [2] the similarities between the crimes, [3] the interval of time that has elapsed between the crimes, [4] the need for the evidence, [5] the efficacy of alternative proof, and [6] the degree to which the

_____________________________________________________________

7 2012 UT 60, 296 P.3d 673.

8 The State’s initial rule 404(b) motion was submitted before this

court had announced the doctrine of chances in State v. Verde

. As such, the motion argued that the evidence was admissible to prove intent, modus operandi, lack of accide nt or mistake, and plan, as

well as the victims’ lack of consent. But after this court announced the doctrine of chances, the State filed a supplemental brief in support of its initial rule 404(b) motion to seek admission of the

witnesses’ testimon y under the doctrine of chances to prove lack of

consent.

9 Verde , 2012 UT 60, ¶ 47 (citation omitted).

10 Id. ¶¶ 57

– 61.Cite as: 2017 UT 34

Opinion of the Court

7 evidence probably will rouse the jury to overmastering hostility. 11

R elying solely on these factors, the court concluded that “even taking into consideration the potential for prejudice, . . . the probative value of introducing the [testimony ] outweigh [ ed] the degree to which it might rouse the jury.”

¶ 16 Mr. Lowther appealed, and the court of appeals affirmed the district court’s holding regarding 404(b). But it concluded that the

district court’s “ strict adherence to Shickles [was] misplaced” as those factors may have “misdirected i ts 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.’” 12 Relying on its own precedent, the court of appeals ultimately concluded that in cases involving the doct rine of chances, Verde ’s four foundational requirements displace the Shickles factors. And in applying Verde to rule 403, the court of appeals concluded that “A.P.’s testimony encourages a verdict on an improper basis and should have been excluded by the [ district] court.” 13 As to C.H.’s and C.R.’s testimony

, it “remand[ed] the case for further proceedings” under the Verde factors and “without consideration of A.P.’s testimony.” 14 The State appealed, and we granted certiorari. We have jurisdiction under

Utah Code section 78A

- 3

- 102(3)(a).

Standard of Review

¶ 17 We granted certiorari on whether the majority of the panel of the court of appeals erred in applying and delineating the scope of

this court’s decision in State v. Verde 15 with respect to the doctrine of

chan ces. We review the court of appeals’ decision for correctness. 16

_____________________________________________________________

11 State v. Shickles , 760 P.2d 291, 295

– 96 (Utah 1988) (citation omitted) . As discussed below, infra ¶ 45 n. 81 , the district court applied these factors before State v. Lucero , 2014 UT 15, 328 P.3d 841,

and State v. Cu t tler

, 2015 UT 95, 367 P.3d 981, clarified the proper application of the Shickles fa ctors.

12 State v. Lowther , 2015 UT App 180, ¶ 25, 356 P.3d 173 (citation omitted).

13 Id. ¶ 3 2

.

14 Id. ¶ 34.

15 2012 UT 60, 296 P.3d 673.

16 See i d. ¶ 13.S TATE v. L OWTHER

Opinion of the Court

8 And “[t]he correctness of the court of appeals’ decision turns, in part, on whether it accurately reviewed the [ district ] court’s decision under the appropriate standard of review.” 17 The appro priate

standard of review for a district court’s decision to admit or exclude

evidence is “abuse of discretion.” 18 A district court abuses its

discretion when it admits or excludes “evidence under the wrong legal standard.” 19 “[ W ] hether the district ‘ court applied the proper legal standard ’ in assessing the admissibility of

. . . evidence is a question of law that we review for correctness. ” 20 I f the district court applied the correct legal standard, it abuses its discretion only when

“ its decision to admit o r exclude evidence ‘ is bey ond the limits of reasonability. ’ ” 21

Analysis

¶ 18 The primary issue before us is whether the court of appeals erred in articulating and applying the doctrine of chances. That court upheld the district court’s analysis of rule 404(b), 22 but ultimately concluded that the district court erred when it applied State v.

Shickles 23 to conclude that the witnesses’ testimony was admissible

under rule 403. 24 Specifically, the court of appeals held that the

district court should have looked to the f our foundational

_____________________________________________________________

17 Id. ( first alteration in original).

18 State v. Cu t tler

, 2015 UT 95 , ¶ 12, 367 P.3d 981.

19 Id.

20 Id. (citation omitted).

21 Id. (citation omitted).

22 State v. Lowther , 2015 UT App 180, ¶¶ 19

– 20, 356 P.3d 173 (upholding “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 [doctrine of chances] test,” but declining to “consider the trial court’s analysis of

. . . the materiality, frequency, and independence factors in Verde ’s

doctrine of chances” because Mr. Lowther failed to addres s those issues on appeal).

23 760 P.2d 291 (Utah 1988).

24 Lowther , 2015 UT App 180, ¶ 25 (“ Given this court’ s decision

. . . to interpret Verde as replacing Shickles , the trial court’ s strict

adherence to Shickles here is misplaced. ” (citation omitted) ).Cite as: 2017 UT 34

Opinion of the Court

9 requirements articulated in State v. Verde 25 in conducting a rule 403 balancing test. 26

¶ 19 On appeal, Mr. Lowther does not directly address the court of appeals’ rule 404(b) or 403 analyses as they relate to the doctrine
of chances. Instead, he argues that application of the doctrine of

chances is premature in this case because he has not made a charge of fabrication. He also argues that under the plain language of rule 403 the risk of unfair prejudice substantially outweighs the probative

va lue of the witnesses’ testimony concerning past bad acts, thereby precluding admission of the testimony.

¶ 20 The State, in contrast, directly engage s the court of appeals ’ application of the doctrine of chances. In particular, it argues that the court of appeals erred in concluding that the district court should

have considered Verde ’ s four foundational requirements

— materiality, similarity, independence, and frequency

— in conducting its analysis of the evidence under rule 403. T he State argues that the probative va lue of the testimony offered by A.P., C.H., and C.R. is not substantially outweighed by the risk of unfair prejudice.

¶ 21 As discussed below, we disagree with Mr. Lowther. The doctrine of chances is not limited to rebutting claims of fabrication, and applicati on of the doctrine in this case is not premature. As to the issue of whether the court of appeals erred in concluding that a court must rely on the doctrine of chances in performing both a 404(b) analysis and a 403 analysis, we agree with the State. Verde ’ s foundational requirements assess whether a body of prior bad acts evidence is being employed for a proper, non

- character statistical inference. And in performing a rule 403 balancing test, a court is not bound by these foundational requirements. Though w e conclude that the court of appeals erred in requiring the district court to rely

on Verde ’s foundational requirements in applying rule 403, we nevertheless hold that the court of appeals was ultimately correct to

conclude that the district court abused i ts discretion by relying solely

on the Shickles factors when applying rule 4 03 and admitting the testimony of A.P., C.H., and C.R. We address each issue in turn.

_____________________________________________________________

25 2012 UT 60, 296 P.3d 673.

26 Lowther, 2015 UT App 180, ¶ 25

.S TATE v. L OWTHER

Opinion of the Court

10 I. The Doctrine of Chances I s N ot Limited to Rebutting

Claims of Fabrication

¶ 22 Mr. Lowther argues that the doctrine of chances is limited to cases in which a defendant claims that the complaining witness has fabricated her testimony. Because he has not claimed that K.S. has fabricated her testimony, he argues that application of the doctrine in this case was premature and therefore the State’s 404(b) evidence should not have been admitted. We reject these arguments.

¶ 23 In State v. Verde , we noted that the doctrine of chances “defines circumstances where prior bad acts can properly be used to

rebut a charge of fabrication.” 27 We did not, however, limit the doctrine to cases involving claims that a witness was fabricating her testimony. In fact, we discussed several scenarios where the doctrine was employed to rebut defenses based on mistake, coincidenc e, and

accident. 28 Since Verde , the court of appeals has affirmed the use of

the doctrine to rebut lack of intent as a defense. 29 Accordingly, the

doctrine of chances is not limited to cases where the defendant accuses a complaining witness of fa bricating he r testimony, as

Mr. Lowther contends.

¶ 24 In this case, t he State argued to the district court that the testimony of A.P., C.H., and C.R. was “necessary to show intent to engage in sexual activity without the victims’ consent, lack of
accident or mistake, and a modus operandi of waiting until the victims were incapable of resisting due to intoxication or lack of
consciousness,” and the district court ruled the evidence admissible

under the doctrine of chances

. Mr. Lowther challenges that conclusion, arguing tha t our decision in Verde shows that where

intent is not in “ bona fide dispute,” evidence should not be admitted under rule 404(b).

¶ 25 But this argument fails to recognize the differences between

this case and Verde

. I n this case

, the issue s of consent , a component

of actus reus in a rape charge, and mens rea , are both in “ bona fide

_____________________________________________________________

27 2012 UT 60, ¶ 47, 296 P.3d 673.

28 Id. ¶¶ 48

– 50.

29 See State v. Lomu , 2014 UT App 41, ¶ 25, 321 P.3d 243 (affirming a district court’s decision to admit evidence of a prior “practically

ide ntical” armed robbery to rebut the defendant’s claim that he did not know that his companions planned to use a gun in the crime).Cite as: 2017 UT 34

Opinion of the Court

11 dispute. ” 30 T o prove actus reus

, the State must prove that Mr. Lowther had sex with K.S. without her consent. Though the fact that Mr. Lowther and K.S. had sex may not be in bona fide dispute because his

semen was discovered on her , the question of whether she consented

is contested

. The doctrine of chances, if its requirements are properly met, is one tool the State may use to prove that K.S. did not consent

to sex with Mr. L owther.

¶ 26 In addition, the S tate must prove mens rea

. Unlike in Verde

, Mr. Lowther’s mental state at the time of the alleged rape of K.S. is in bona fide dispute here. Mr. Lowther has not, as in Verde , offered to stipulate to mens rea if the jury finds actus reus. Because the issue s of

consent and mens rea are in bona fide dispute here, 31 we are not faced

with the concerns discussed in Verde

— specifically

, we cannot say

that it seem s “much more likely” that the prosecution seek s to admit the testimony to “ sustain[] an impermissible inference” that

Mr. Lowther “acted in conformity with the bad character suggested by his prior bad acts” 32 rather than to sustain the permissible

statistical inference s arising from the doctrine of chances.

¶ 27 Thus, the doctrine of c hances is applicable to this case and it was not applied prematurely. 33 Below, we discuss more fully the

_____________________________________________________________

30 Verde , 2012 UT 60, ¶ 57 (citation omitted).

31 These disputes make this case different from Verde . In Verde

, the defendant’s offer to stipulate to intent undercut the State’s arguments that the prior bad acts evidence was actually being offered to prove intent. But in this case, Mr. Lowther has not made

an offer that if the jury finds “ the [sexual intercourse w ith K.S.

without her consent ] occurred, defendant [ stipulate s] that the defendant did it [ with the requisite mental state ]

. ” Id. ¶ 25 . E ven if

Mr. Lowther were to so stipulate

— thereby restricting his defense to

lack of actus reus

— the other witnesses’ testi mony would still be
relevant to the issue of consent, and therefore admissible for that purpose if the doctrine of chances requirements are met

.

32 Id. ¶ 26 (“ Where intent is uncontested and readily inferable from

other evidence , 404(b) evidence is largely tangential and duplicative. It is accordingly difficult to characterize its purpose as properly aimed at establishing intent. ”(emphasis added) (footnote omitted))

.

33 Mr. Lowther quotes Verde for the proposition that “[a] charge of fabrication is insufficient by itself to open the door to evidence of any and all prior bad acts.” Id. ¶ 55. As applied to his case, he “urges [us] (Continued)S TATE v. L OWTHER

Opinion of the Court

12 doctrine of chances and its relationship to the rules of evidence, concluding that the doctrine does not require a district court to consider any specif ic list of factors to assess the probative value of

evidence under rule 403 of the Utah Rules of Evidence.

II. Verde ’ s Four Foundational Requirements D o N ot

Displace the Shickles Factors

¶ 28 Below, the court of appeals concluded that in the context of

the doctrine of chances State v. Verde ’s 34 four foundational requirements have displaced State v. Shickles 35 for purposes of a rule 403 balancing test. 36 In response, the State argues that Verde ’s foundational requirements do not apply to r ule 403 because “the doctrine of chances is a theory of logical relevance that demonstrates why the [prior bad acts] evidence is relevant to a proper, non

propensity purpose under rule 404(b).” And because rule 403 does not assess relevancy but balances th e probative value of the evidence against the risk of unfair prejudice, the State contends that “rule 403 concerns come into play only after the [district] court has determined that the evidence is relevant and admissible under rule 404(b).”

to adopt a standard allowing admissibility under [ the ] doctrine of

c hances if the charge of fabrication is about a witness’s testimony regarding specific facts material and relevant to the pending case, rather than a general attack on the witness’s credibility or character.”

Mr. Lowther misreads Verde . In context, we were rejecting the court of appeals ’ decision to affirm introduction of Mr. Verde’s prior misconduct under a “vague notion of [the] doctrine of chances” and “[w]ithout denominating the doctrine as such or elaborating on its

elements.” Id. ¶ 54. In other words, we reversed the court of appeals

in that case because it held Mr. Verde’s prior bad acts to be

admissible without analyzing the evidence under the doctrine of chances. In remanding the case, we left it to the district court to apply the doctrine of chances to determine whether his prior bad acts were admissible to rebut the charge of fabrication. Id. ¶ 62.

34 2012 UT 60, 296 P.3d 673.

35 760 P.2d 291 (Utah 1988).

36 State v. Lowther , 2015 UT App 180, ¶ 25, 356 P.3d 173 (“Given

this court’s decision . . . to interpret Verde as replacing Shickles , the

trial court’s strict adherence to Shickles here is misplaced.” (citation omitted) ); see id. ¶¶ 2 5

– 29 (applying each of Verde ’s foundational requirements “to determine whether sufficient grounds for

admiss ion exist here despite the court’s application of [ Shickles ]”).Cite as: 2017 UT 34

Opinion of the Court

13 ¶ 29 As discussed b elow, we agree with the State. Verde ’s foundational requirements have not displaced the Shickles factors for purposes of rule 403. We have repeatedly stated that courts are not bound to any particular set of factors or elements when conducting a

rule 403 b alancing test. 37 And while Verde ’s requirements may help a court assess the probative value of prior bad acts evidence, we clarify that in evaluating doctrine of chances evidence under rule 403, a court may consider any relevant fact and need not necessaril y consider Verde ’s foundational requirements or limit its analysis to these requirements.

¶ 30 The Utah Rules of Evidence provide a framework for distinguishing permissible uses of evidence from impermissible uses. As a general matter, relevant evidence is admissible under the

rules. 38 But “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in conformity with the

character.” 39 Such “ evidence may be admissibl e for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” 40 In addition, the evidence must meet the requirements of rule 403, which provides that relevant evidence m ay be excluded if its probative value is “‘ substantially outweighed by the danger of unfair prejudice. ’ ” 41

_____________________________________________________________

37 See infra ¶ 34 n. 54

.

38 See U TAH R. E VID

. 402.

39 U TAH R. E VID

. 404(b)( 1)

.

40 U TAH R. E VID

. 404(b)(2). We note that we have at times characterized rule 404(b) as being a n “inclusionary” rule. See, e.g.

, State v. Decorso , 1999 UT 57, ¶ 24, 993 P.2d 837, abrogated on other grounds by State v. Thornton , 2017 UT 9, 391 P.3d 1016. We take this

occasion to recognize the potential for confusion that could be sown by this language. In some ways, describing the rule as “inclusionary” may give the impression that evidence is presumed to be admissible.
To avoid confusion, w e repudiate that characterization and look to the plain language of rule 404(b) for the standard for the admissibility of evidence: it does not carry with it an attendant presumption of either admissibility or inadmissibility.

41 State v. Allen , 2005 UT 11, ¶ 24 , 108 P. 3d 730 (citation omitted)

.S TATE v. L OWTHER

Opinion of the Court

14 ¶ 31 In State v. Verde , we articulated the doctrine of chances within the context of a 404(b) analysis. We described the doctrine as “defin[ing] circumstan ces where prior bad acts can properly be used to rebut a charge of fabrication,” mistake, coincidence, or accident. 42 We further described the doctrine as “a theory of logical relevance that ‘rests on the objective improbability of the same rare misfortune befalling one individual over and over.’” 43 As an example of the doctrine’s application, we noted that

[w]hen one person claims rape, the unusual and abnormal element of lying by the complaining witness may be present. But when two (or more) persons tell

si milar stories, the chances are reduced that both are lying or that one is telling the truth and the other is coincidentally telling a similar false story. 44

In other words, the doctrine “starts with [a] low baseline probability” that a certain event would occur and “considers the effect on these already low probabilities of additional, similar

occurrences.” 45 “At some point, ‘[t]he fortuitous coincidence becomes too abnormal, bizarre, implausible, unusual or objectively improbable to be believed.’” 46

¶ 32 In artic ulating this doctrine, we set forth an elemental test. Specifically, we noted that “[u]nder the doctrine of chances, evidence

. . . must not be admitted absent satisfaction of four foundational requirements, which should be considered within the context o f a rule 403 balancing analysis.” 47 Those four foundational requirements are (1) materiality, (2) similarity, (3) independence, and (4) frequency. 48 When each of these requirements has been met, a court should conclude that rule 404(b) has been satisfied reg arding certain

_____________________________________________________________

42 2012 UT 60, ¶ ¶ 47

– 49 (emphasis added). While we have

examined t he doctrine of chances in the context of “evidence offered

to prove actus reus

, ” i d. ¶ 57 , as explained above, it may also be invoked to prove mens rea

. See supra ¶ 26.

43 Id. ¶ 47 (emphasis added) (citation omitted).

44 Id. ¶ 4 8 (citation omitted).

45 Id. ¶ 49.

46 Id. (citation omitted).

47 Id. ¶ 57 (citation omitted)

.

48 Id. ¶ ¶ 57

– 61

.Cite as: 2017 UT 34

Opinion of the Court

15 prior bad acts evidence 49 and proceed to assess the evidence under

rules 402 and 403.

¶ 33 As noted above, the court of appeals has interpreted Verde ’s directive to consider the four foundational requirements “within the

context of a rule 403 bal ancing analysis” to require application of the requirements to rules 404(b) and 403. 50 T he court of appeals perceived t his interpretation to be in tension with then

- controlling precedent, State v. Shickles , where we articulated several factors

district courts should consider in conducting a rule 403 balancing test. Specifically we noted that

In deciding whether the danger of unfair prejudice and the like substantially outweighs the incremental probative value, a variety of matters must be
considered, inc luding [1] the strength of the evidence as to the commission of the other crime, [2] the similarities between the crimes, [3] the interval of time that has elapsed between the crimes, [4] the need for the evidence, [5] the efficacy of alternative proof, an d [6] the degree to which the evidence probably will rouse the jury to overmastering hostility. 51

_____________________________________________________________

49 Mr. Lowther argues that the “State seeks to use the doctrine of chances” to “water[] down the analysis under” rules 404(b) and 403. This argument is based on a requirement, found in our Nelson

Waggoner line of cases, that district courts “scrupulously exam ine” evidence to ensure that it was truly being offered for a non

- character purpose. The State disagrees that the doctrine of chances represents a watering down. It contends that the requirements of the doctrine of chances are, if anything, more stringent than the standard scrupulous examination requirement. In any event, we need not decide this issue because we have recently repudiated the “scrupulous examination” requirement. See State v. Thornton , 2017 UT 9, ¶ 3,

--- P.3d

---

.

50 State v. Labrum , 2014 UT App 5, ¶¶ 26

– 27, 318 P.3d 1151 ( quoting Verde , 2012 UT 60, ¶ 57 )

.

51 760 P.2d 291, 295

– 96 (Utah 1988) (citation omitted) . As discussed below, in cases subsequent to Shickles , we have instructed courts not to make a mechanical application of these factors but to apply the text of rule 403. See State v. Lucero , 2014 UT 15, ¶ 32, 328

P.3d 841.S TATE v. L OWTHER

Opinion of the Court

16 The court of appeals has resolved that tension by concluding that “[w]here the context involves a doctrine of chances analysis, we read

Verde as having displac ed the Shickles factors

— for purposes of assessing the ‘probative value’ aspect of the rule 403 analysis

— with a focus on materiality, similarity, independence, and frequency.” 52 Significantly, in this case, it recast Verde ’s four foundational requirements as “ factors ” for purposes of a rule 403 analysis. 53

¶ 34 This interpretation of Verde and its relationship to rule 403 is

inconsistent with our recent decisions that have repudiated an approach to rule 403 that ignores the text and mechanically applies a

set of f actors. 54 As such, suggesting that the Verde requirements have displaced the Shickles fact or s in cases where the doctrine of chances

is involved

— as the court of appeals has done

— may lead courts to conclude that they must “moor [their] rule 403 analysis enti rely and exclusively ” to the Verde foundational requirements. 55 We therefore reject the court of appeals’ approach.

¶ 35 But we do not suggest that Verde ’s foundational requirements are irrelevant to the probative value of prior bad acts evidence. The requirements may bear directly on such evidence’s probative value. As noted above, Verde requires a court to consider (1) materiality, (2) similarity, (3) indep endence, and (4) frequency. First, under materiality, “[t]he issue for which the uncharged

_____________________________________________________________

52 Labrum , 2014 UT App 5, ¶ 28.

53 Lowther, 2015 UT App 180, ¶ 25 (“Thus, we will now c onsider the trial court’s rule 403 analysis under the Verde factors[.]”).

54 See State v. Cu t tler

, 2015 UT 95, ¶ 18, 367 P.3d 981 (“[T]he

Shickles factors should not limit the considerations of a court when making a determination of evidence’s admissibilit y under rule 403. Instead, courts are ‘bound by the test of rule 403,’ and it is ‘unnecessary for courts to evaluate each and every [ Shickles ] factor’ in every context.” (citation omitted) ); State v. Lucero , 2014 UT 15, ¶ 32, 328 P.3d 841 (“Since our decis ion in Shickles , a number of courts have relied heavily on [its] list of factors in weighing evidence under rule 403. . . . [C]ourts are bound by the text of rule 403, not the

limited list of considerations outlined in Shickles .”); see also Met v.

State , 2 016 UT 51 , ¶ 9 0

, 388 P.3d 447 (repudiating the multi

- factor test outlined in precedent for determining whether an allegedly gruesome photograph’s probative value is substantially outweighed by the risk of unfair prejudice).

55 Cu t tl er , 2015 UT 95, ¶ 19.Cite as: 2017 UT 34

Opinion of the Court

17 misconduct evidence is offered ‘ must be in bona fide dispute .’” 56 The aim of this foundational requirement is to ensure “a careful

evaluation of the true

— and predomin ant

— purpose of any evidence proffered under rule 404(b).” 57

¶ 36 Second, under the similarity requirement, “the similarities between the charged and uncharged incidents must be ‘sufficient to dispel any realistic possibility of independent invention.’” 58 This

fou ndational requirement aids in assessing the probative value of a body of prior bad act s evidence. “[T]he more similar, detailed, and distinctive the various accusations, the greater is the likelihood that they are not the result of independent imaginative invention.” 59 And if they are not the result of independent imaginative invention, “the

likelihood that the defendant committed one or more of the actions

increases.” 60

¶ 37 The third foundational requirement, independence, recognizes that “ the probative value of similar accusations evidence rests on the improbability of chance repetition of the same event.” 61 “Where the prior uncharged conduct is an accusation of sexual assault, each accusation must be independent of the others” because

“the existence of collusion among various accusers would render ineffective the comparison with chance repetition.” 62 Where
witnesses are in collusion, the statistical si gnificance of the multiple

false accusations fades and the probability that the defendant has been falsely accused increases.

¶ 38 Finally , the fourth foundational requirement is frequency. Under this requirement, “[t]he defendant must have been accused of

_____________________________________________________________

56 Verde , 2012 UT 60, ¶ 57 (citation omitted).

57 Id. ¶¶ 22, 25

– 27 (concluding that a not guilty plea was insufficient to place the issue of a defendant’s intent in bona fide dispute, especially where the defendant did not contest intent at trial

but based hi s defense on never having touched the genitalia of the victim).

58 Id. ¶ 59 (citation omitted).

59 Id. ¶ 58 (alteration in original) (citation omitted).

60 Id. ¶ 49.

61 Id. ¶ 60 (citation omitted)

.

62 Id.S TATE v. L OWTHER

Opinion of the Court

18 the crime or suffered an unusual loss ‘ more frequently than the typical person endures such losses accidentally .’” 63 “ I t is th is infrequency that justifies the probability analysis under the doctrine of chances” because “[g]iven the infrequent occurrence of false rape and child abuse allegations relative to the entire eligible population, [the probability] that the same in nocent person will be the object of multiple false accusations is extremely low.” 64

¶ 39 Taken together, these foundational requirements operate

upon an entire body of prior bad acts evidence to determine whether the evidence is being offered for purposes of a p roper, non

- character statistical inference: the “objective improbability of the same rare misfortune befalling one individual over and over.” 65 And in making that assessment, they also provide a preliminary measure of the probative value of the evidence. Th e probative value of several

witnesses’ independent testimony of substantially similar events is high, and the frequency of the occurrence of those events justifies a 404(b) statistical inference.

¶ 40 As such, the facts a court considers in connection with

Verde ’s foundational requirements and rule 404(b) may have relevance at the rule 403 stage. But a district court need not, as the court of appeals suggests, cabin its rule 403 analysis solely to these

Verde requirements

. 66 It instead has discretion to consi der any relevant factors that assist in determining whether the “probative value” of the witnesses’ testimony is “ substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needl essly presenting

cumulative evidence.” 67 Thus, concluding that Verde displaces the

_____________________________________________________________

63 Id. ¶ 61 (citation omitted)

.

64 Id. (citation omitted).

65 Id. ¶ 4 7 (citation omitted)

.

66 We note that Verde ’s foundational requirements are requirements within the context of rule 404(b). A court must find that each of the requirements has been satisfied to admit doctrine of

chances eviden ce for purposes of a proper, non

- character statistical inference. A court may consider, however, some of the same facts it

considered in connection with Verde ’s foundational requirements for purposes of a rule 403 balancing test. These considerations are not requirements within the context of rule 403.

67 U TAH R. E VID

. 40 3.Cite as: 2017 UT 34

Opinion of the Court

19 Shickles factors is inconsistent with our precedent and unnecessary given the purpose of the doctrine of chances. As we have discussed,

Verde did not displace anything; the t ext of rule 403 is what controls, not any particular set of factors.

¶ 41 We therefore reiterate that district courts are bound by the language of rule 403 rather than any set of factors or elements. In evaluating doctrine of chances evidence under rule 403, “c ourts may consider many factors, including some of those we identified in

Shickles .” 68 Further, to the extent a district court finds some of the

same facts it is asked to consider under Verde

— facts that bear on the similarity, independence, or frequency inq uiries

— useful in assessing the probative value of evidence, it should feel free to take those facts

into account . In the end, we reemphasize that “courts are ‘bound by the text of rule 403,’ and it is ‘unnecessary for courts to evaluate each and every

. . . factor’ in every context.’” 69

¶ 42 As applied to this case, we hold that the court of appeals erred in concluding that the Verde foundational requirements have displaced the Shickles factors for purposes of rule 403. A court is bound by the text of rule 403, and it is free to consider any relevant factors when balancing the probative value of evidence against its risk for unfair prejudice. Relying on this standard, we now look to

the c ourt of appeals’ review of the district court’s application of rule
403 to this case, and we conclud e that the district court abused its

discretion.

III. The Court of Appeals Correctly Concluded that the District Court

Improperly Applied Rule 403

¶ 43 As noted above, the court of appeals concluded that the district court erred in limiting its rule 403 analysis solely to the

factors outlined in State v. Shickles

, 70 and held that it should have

instead focused on State v. Verde ’s 71 foundational requirements and

the text of rule 403. 72 It then proceeded to “consider the [district] court’s rule 403 analysis under the Verde factors . . . to determine whether sufficient grounds for admission exist . . . despite the court ’ s

_____________________________________________________________

68 Cuttler , 2015 UT 95, ¶ 18.

69 Id. (citation omitted).

70 760 P.2d 291 (Utah 1988).

71 2012 UT 60, 296 P.3d 673.

72 State v. Lowther

, 2015 UT App 180, ¶ 25, 356 P.3d 173.S TATE v. L OWTHER

Opinion of the Court

20 application of [the Shickles factors].” 73 Applying Verde , the court of appeals concluded that the district court should not have admitted A.P.’s testimony because it was not sufficiently similar to K.S.’s testimony. 74 It remanded for the district court to “reconsider C.R.’s

and C.H.’s testimonies under [ Ve rde ] and without consideration of A.P.’s testimony.” 75

¶ 44 Though the district court did not err in its failure to consider

Verde ’s foundational requirements in the context of rule 403, we agree with the court of appeals that its “application of Shickles

actua lly 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.’” 76 The district court expressly noted that it

was “ tasked with considering the Shickles factors” to perform a rule 403 balancing test. It then “moor[ed] its rule 403 analysis entirely and exclusively to all of the Shickles factors.” 77 Further, it did not rely on the text of rule 403 to assess the risk of unfair prejudice, but focused

on the la nguage in Shickles to assess “the degree to which [the 404(b)] evidence . . . might rouse the jury to overmastering hostility.” 78

¶ 45 We have expressly disavowed this type of mechanical application of the Shickles factors and have concluded that “it is inapprop riate for a district court to ever consider whether evidence will lead a jury to ‘overmastering hostility.’” 79 A court must instead bind its analysis to the text of rule 403, considering those factors that

_____________________________________________________________

73 Id.

74 Id. ¶ 27.

75 Id. ¶ 34.

76 Id. ¶ 25 (quoting State v. Lucero , 2014 UT 15, ¶ 3 2, 328 P.3d 84)

.

77 State v. Cu t tler

, 2015 UT 95, ¶ 19, 367 P.3d 981.

78 See Shickles , 760 P.2d at 296 (“[T]he degree to which the evidence probably will rouse the jury to overmastering hostility.” (citation omitted) ).

79 Cu t tler

, 2015 UT 95, ¶ 20 (“Since the overmastering hostility

factor under Shickles is at best judicial gloss and at worst a substitute test for evidence’s admissibility under rule 403, we now make clear

that it is inappropriate for a court to consider the overmastering hostility factor in a rule 403 analysis.”).Cite as: 2017 UT 34

Opinion of the Court

21 are appropriate given the particular circumstances of the case. 80 As such, the district court applied the incorrect legal standard to rule 403, “[a]nd the admission or exclusion of evidence under the wrong legal standard constitutes an abuse of discretion.” 81 Thus, we

remand for the court to evaluate the Sta te’s prior bad acts evidence

under the text of rule 403.

¶ 46 We understand the court of appeals’ concern regarding the testimony of A.P. As noted above, the court of appeals concluded that while A.P.’s testimony was sufficiently similar to K.S.’s testimony for purposes of rule 404(b), the dissimilarities

— the presence of physical restraint and “extreme level of intoxication”

— “could be ‘particularly inflammatory relative to the instant crime.’” 82

But u nlike the court of appeals, we do not rule this evidence

inadmi ssible under rule 403

. Instead we direct the district court to focus generally on the extent to which the “ tendency [of A.P.’s testimony] to sustain a proper inference is outweighed by its propensity for an improper inference or for jury confusion about it s

_____________________________________________________________

80 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 .”).

81 Cuttler , 2015 UT 95, ¶ 12 (citation omitted). We note that the district court’s mechanical application of Shickles is understandable in this case because it ruled on the admissibility of A.P., C.H., and C.R.’s testimony nearly two years before we decided State v. Lucer o , where we clarified that courts should not rely exclusively on the

Shickles factors but should instead focus on the text of rule 403. See 2014 UT 15. Although the district court performed the analysis that was dictated by then

- existing precedent, it neve rtheless abused its discretion because it applied a legal standard we have since

concluded is incorrect. For example, the district court quoted State v. Killpack for the proposition that “[o] nly when evidence poses a danger of ‘ rous[ing] the jury to overmastering hostility ’ does it reach the level of unfair prejudice that rule 403 is designed to prevent. ” 2008 UT 49, ¶ 53, 191 P.3d 17 (citation omitted) (second alteration in original). But this language was expressly repudiated by our

decision in Cutt ler , which implicitly overruled Killpack

. See supra ¶ 45

n.79.

82 Lowther

, 2015 UT App 180, ¶ 27 (citation omitted)

.S TATE v. L OWTHER

Opinion of the Court

22 real purpose,” 83 and not on whether the evidence would “rouse the jury to overmastering hostility”

— a now defunct standard. 84

¶ 47 In summary, the court of appeals is correct that the district court abused its discretion by mechanically applying the Shickles factors. But the court of appeals erred in concluding that the district court was required to apply Verde . We accordingly direct the district

cou rt to reconsider the testimony of A.P., C.H., and C.R. under the

text of rule 403.

Conclusion

¶ 48 The doctrine of chances is not limited solely to rebutting claims of fabrication, and its application in this case was not premature. Further, the court of appeals erred when it concluded that the district court was required to consider the foundational

re quirements outlined in State v. Verde 85 in its rule 403 balancing test.

But it did not err when it concluded that the district court abused its discretion by rigidly applying the factors outlined in State v.

Shickles

. 86 Because Mr. Lowther has prevailed on a ppeal, he is entitled to withdraw his guilty plea 87 and request that the district court reconsider his challenge to the witnesses’ testimony under the standard articulated in this opinion. If he does so , the district court should carefully consider the text of rule 403 of the Utah Rules of Evidence and balance the pr obative value of the testimony of A.P.,
C.H., and C.R. against the risk of unfair prejudice.

_____________________________________________________________

83 Verde , 2012 UT 60, ¶ 18.

84 Cu t tler , 2015 UT 95, ¶ 16 n.5 (citation omitted)

.

85 2012 UT 60, 296 P.3d 673.

86 760 P.2d 291 (Utah 1988).

87 S ee U TAH R. C RIM

. P. 11(j) (“A defendant who prevails on appeal [from a conditional guilty plea] shall be allowed to withdraw the plea.”).