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

AMENDED OPINION*

This opinion is subject to revision before final

publication in the Pacific Reporter

2017 UT 34

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Petitioner,

v.

JOHN MARCUS LOWTHER,

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

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which 

ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM, JUSTICE HIMONAS, and 

JUDGE CONNORS joined.

Having recused himself, JUSTICE PEARCE did not participate herein; 

SECOND DISTRICT COURT JUDGE DAVID M. CONNORS sat.
STATE v. LOWTHER

Opinion of the Court

2

CHIEF JUSTICE DURRANT, 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 foundational 

requirements displaced the factors set forth in State v. Shickles2 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 value 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 appeal, 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

for 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 Utah Rules of 

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

not consent to sexual intercourse with 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 regarding 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 On September 23, 2010, 20-year-old K.S. and her friend, S.H., 

attended 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 pick 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 

anyway 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 her 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 forensic sexual 

_____________________________________________________________

4 The facts in this case are taken from testimony offered at the 

preliminary hearing and the evidentiary hearing.
STATE v. LOWTHER

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. Throughout 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 door 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 14, 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 fell 

asleep or blacked out. Four guests, 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 finally 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 were unable to recover any semen.

The Alleged Object Rape of C.R.

¶ 10 Approximately five months later, on July 19, 2010, 20-yearold 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 legs and told him to “go home.” 

He immediately left, and she reported the assault to police two 

months later when she learned that her best friend—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., but 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 The State chose 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.
STATE v. LOWTHER

Opinion of the Court

6

that the victims’ testimony regarding Mr. Lowther’s prior bad acts 

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 improbability 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 [was] offered for a proper, non-character 

purpose, namely the ‘doctrine of chances.’” After assessing 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 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, 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 accident 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’ testimony 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

Relying 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 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.’”12 Relying on its own 

precedent, the court of appeals ultimately concluded that in cases 

involving the doctrine 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. Verde15 with respect to the doctrine of 

chances. 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. Cuttler, 2015 UT 95, 367 P.3d 981, clarified the proper 

application of the Shickles factors.

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

omitted).

13 Id. ¶ 32. 

14 Id. ¶ 34. 

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

16 See id. ¶ 13.
STATE v. LOWTHER

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 appropriate 

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 If the district court 

applied the correct legal standard, it abuses its discretion only when 

“its decision to admit or exclude evidence ‘is beyond 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. 

Shickles23 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 four foundational 

_____________________________________________________________

17 Id. (first alteration in original).

18 State v. Cuttler, 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 address 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. Verde25 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 

value of the witnesses’ testimony concerning past bad acts, thereby 

precluding admission of the testimony.

¶ 20 The State, in contrast, directly engages 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. The State argues that the 

probative value 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 application 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 we 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 its discretion by relying solely 

on the Shickles factors when applying rule 403 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. 
STATE v. LOWTHER

Opinion of the Court

10

I. The Doctrine of Chances Is Not 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, coincidence, 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 fabricating her testimony, as 

Mr. Lowther contends.

¶ 24 In this case, the 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 that 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. In this case, the issues 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 

identical” 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 To 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. Lowther.

¶ 26 In addition, the State 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 issues 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 seems “much more likely” that the prosecution seeks 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 inferences arising from the doctrine of chances.

¶ 27 Thus, the doctrine of chances 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 with K.S.

without her consent] occurred, defendant [stipulates] that the 

defendant did it [with the requisite mental state].” Id. ¶ 25. Even if 

Mr. Lowther were to so stipulate—thereby restricting his defense to 

lack of actus reus—the other witnesses’ testimony 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)
STATE v. LOWTHER

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 specific 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 Do Not 

Displace the Shickles Factors

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

the doctrine of chances State v. Verde’s34 four foundational 

requirements have displaced State v. Shickles35 for purposes of a rule 

403 balancing test.36 In response, the State argues that Verde’s

foundational requirements do not apply to rule 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, nonpropensity purpose under rule 404(b).” And because rule 403 does 

not assess relevancy but balances the 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 

chances 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. ¶¶ 25–29 (applying each of Verde’s foundational 

requirements “to determine whether sufficient grounds for 

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

Opinion of the Court

13

¶ 29 As discussed below, 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 balancing 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 necessarily 

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 admissible 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 may be excluded if its 

probative value is “‘substantially outweighed by the danger of

unfair prejudice.’”41

_____________________________________________________________

37 See infra ¶ 34 n.54.

38 See UTAH R. EVID. 402.

39 UTAH R. EVID. 404(b)(1).

40 UTAH R. EVID. 404(b)(2). We note that we have at times 

characterized rule 404(b) as being an “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, we 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).
STATE v. LOWTHER

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] circumstances 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 

similar 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 articulating 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 of 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 regarding certain 

_____________________________________________________________

42 2012 UT 60, ¶¶ 47–49 (emphasis added). While we have 

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

to prove actus reus,” id. ¶ 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. ¶ 48 (citation omitted).

45 Id. ¶ 49. 

46 Id. (citation omitted).

47 Id. ¶ 57 (citation omitted). 

48 Id. ¶¶ 57–61.
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Opinion of the Court

15

prior bad acts evidence49 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 balancing analysis” to require application of the 

requirements to rules 404(b) and 403.50 The court of appeals 

perceived this 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, including [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, and 

[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 NelsonWaggoner line of cases, that district courts “scrupulously examine” 

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.
STATE v. LOWTHER

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 displaced 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 factors.54 As such, suggesting that the Verde requirements have 

displaced the Shickles factors 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 entirely 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) independence, 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 consider 

the trial court’s rule 403 analysis under the Verde factors[.]”). 

54 See State v. Cuttler, 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 admissibility 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 decision 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, 2016 UT 51, ¶ 90, 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 Cuttler, 2015 UT 95, ¶ 19. 
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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 predominant—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 

foundational requirement aids in assessing the probative value of a 

body of prior bad acts 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 significance 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 his 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.
STATE v. LOWTHER

Opinion of the Court

18

the crime or suffered an unusual loss ‘more frequently than the typical 

person endures such losses accidentally.’”63 “It is this 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 innocent 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 proper, 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. The 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 consider 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 needlessly presenting 

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

_____________________________________________________________

63 Id. ¶ 61 (citation omitted). 

64 Id. (citation omitted). 

65 Id. ¶ 47 (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 evidence 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 UTAH R. EVID. 403.
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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 text 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, “courts 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 inquiries—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 court of appeals’ review of the district court’s application of rule 

403 to this case, and we conclude 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’s71 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. 
STATE v. LOWTHER

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 [Verde] 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

actually misdirected its rule 403 analysis, causing it to focus on the 

‘limited list of considerations outlined in Shickles’ instead of focusing 

on the ‘text of rule 403.’”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 language 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 

inappropriate 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, ¶ 32, 328 P.3d 84). 

77 State v. Cuttler, 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 Cuttler, 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 State’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 unlike the court of appeals, we do not rule this evidence 

inadmissible 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 its 

_____________________________________________________________

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. Lucero, 

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 nevertheless 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 Cuttler, which implicitly overruled Killpack. See supra ¶ 45 

n.79.

82 Lowther, 2015 UT App 180, ¶ 27 (citation omitted). 
STATE v. LOWTHER

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 

court 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 

requirements outlined in State v. Verde85 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 appeal, he is 

entitled to withdraw his guilty plea87 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 probative 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 Cuttler, 2015 UT 95, ¶ 16 n.5 (citation omitted).

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

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

87 See UTAH R. CRIM. P. 11(j) (“A defendant who prevails on 

appeal [from a conditional guilty plea] shall be allowed to withdraw 

the plea.”).