This opinion is subject to revision before final

publication in the Pacific Reporter

2024 UT 27 

IN THE

SUPREME COURT OF THE STATE OF UTAH

MICHAEL W. THOMPSON, 

Appellee,

v. 

STATE OF UTAH, 

Appellant. 

No. 20220949 

Heard March 4, 2024 

Filed August 1, 2024 

On Direct Appeal

Third District, Salt Lake County

The Honorable Su Chon

No. 170901627 

Attorneys:

Robert S. Clark, David C. Reymann, 

Austin J. Riter, Rachel L. Wertheimer, Jensie L. Anderson, 

Jennifer Springer, Salt Lake City, for appellee

Sean D. Reyes, Att’y Gen., Erin Riley, Asst. Att’y Gen., 

John J. Nielsen, Special Asst. Solic. Gen., Andrew F. Peterson, 

Deputy Solic. Gen., Salt Lake City, for appellant

JUSTICE POHLMAN authored the opinion of the Court, in which 

ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE PETERSEN, 

JUSTICE HAGEN, and JUDGE HALL joined.

Having recused himself, CHIEF JUSTICE DURRANT does not 

participate herein; JUDGE CRAIG HALL sat.
THOMPSON v. STATE

Opinion of the Court

2

JUSTICE POHLMAN, opinion of the Court:

INTRODUCTION

¶1 In 2008, a jury convicted Michael W. Thompson of two 

counts of forcible sodomy. Thompson appealed his conviction, 

contending his counsel was constitutionally ineffective, and the 

court of appeals agreed. It reversed Thompson’s conviction and 

remanded for a new trial. After the State elected not to retry 

Thompson, the district court dismissed the case against him with 

prejudice. Thompson was released after serving several years in 

prison.

¶2 A few years after his release, Thompson petitioned the 

court for a factual innocence determination under the factual 

innocence part of the Post-Conviction Remedies Act (PCRA).1 He 

asserted that newly discovered material evidence, when viewed 

with the trial evidence, proved his innocence. After a hearing, the 

post-conviction court concluded that Thompson had clearly and 

convincingly established his factual innocence. The State appeals

that determination.

¶3 The State contends that the post-conviction court 

misinterpreted the factual innocence statute to allow the court to 

base its innocence determination on more than the newly 

discovered evidence. The State asserts that the statute requires an 

innocence determination to be based upon the newly discovered 

evidence and that the new evidence Thompson introduced, even if 

credible, did not demonstrate his innocence.

¶4 We agree with the State. Under the plain language of the 

factual innocence statute, a determination of factual innocence 

must be based on newly discovered evidence, not evidence that 

was available at trial. And here, Thompson’s newly discovered 

evidence does not clearly and convincingly establish his factual 

innocence. Accordingly, we reverse.

BACKGROUND

¶5 In August 2002, Michael Thompson, a thirty-two-year-old

interstate truck driver living in Wisconsin, drove with a friend 

(Friend) to Utah for work. During this trip, Thompson and Friend

__________________________________________________________

1 This part of the Post-Conviction Remedies Act, sections 78B-9-

401 to -405, is titled “Postconviction Determination of Factual 

Innocence.” UTAH CODE § 78B-9-401. For simplicity, we refer to it 

throughout this opinion as the factual innocence statute.
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Opinion of the Court

3

spent two nights in Salt Lake City with Thompson’s family. Later, 

Thompson’s half-sister, A.T., reported to police that Thompson had 

sexually abused her. The State charged Thompson with two counts 

of forcible sodomy “[i]n or about August, 2002, in Salt Lake 

County.”

Trial

¶6 At trial, A.T. testified that she was sixteen years old when 

Thompson and Friend visited her and her mother in Salt Lake City. 

According to A.T., Thompson and Friend stayed at her mother’s

house for two consecutive nights; Thompson slept on the couch,

and Friend slept in a spare bedroom. A.T. explained that on the 

second morning, Thompson came into her bedroom, and they 

performed oral sex on one another. She said that after Thompson 

ejaculated, he “wiped it up in a tissue and flushed it down the toilet 

and went back upstairs.” A.T. further explained that she joined 

Thompson upstairs a few minutes later, and they talked about 

“what had happened between [them]” but “switched the 

conversation” to a radio show when they heard someone stirring 

from a bedroom.

¶7 Although she could not remember the exact date, A.T. 

testified that the abuse occurred “right at the end of August,” 

around 9:00 or 9:30 in the morning.2 She admitted that this

testimony was inconsistent with her testimony at the preliminary 

hearing, where she had estimated that the abuse occurred around 

10:00 or 11:00 in the morning. She explained that she “didn’t have 

a clock” in her room and “wasn’t sure what time it would have 

been” “because of how high the sun was.”

¶8 A.T. also admitted that she had previously reported to the 

police that “nothing happened” between her and Thompson. She 

explained that she did not initially disclose the abuse to the police 

because “[i]t’s hard to pull up and have flashbacks and remember 

what happened.”

¶9 The defense called several witnesses to testify, including 

Thompson and Friend.

¶10 Thompson denied abusing A.T. He testified that he and 

Friend did not stay in Salt Lake City for two consecutive days, as 

__________________________________________________________

2 Some witnesses and evidence referred to Central Daylight 

Time, while others referred to Mountain Daylight Time. For 

consistency, we refer to Mountain Daylight Time.
THOMPSON v. STATE

Opinion of the Court

4

A.T. claimed. According to Thompson, he and Friend traveled to 

Salt Lake City from Wisconsin and arrived in town in the late 

evening; the following morning, A.T. and Friend woke him up, and 

Thompson and Friend left in the afternoon to make a delivery in 

Nevada. Thompson testified that he and Friend returned to Salt 

Lake City a few days later and spent a second night at Thompson’s

stepmother’s house. He testified that he and Friend woke up at 5:00 

a.m., “got ready,” and “got out of there” because they had to make 

a “time-sensitive” produce delivery. According to Thompson, they 

were “rolling” by 5:30 a.m. Thus, Thompson testified that the 

sexual abuse could not have occurred around 9:00 a.m. on the 

second morning, as A.T. alleged.

¶11 Thompson introduced trucking logs to corroborate his 

account. The logs showed that, on August 20, Thompson and 

Friend drove approximately ten-and-a-half hours from Rapid City, 

South Dakota, to Salt Lake City and arrived around 9:30 p.m. They 

showed that Thompson and Friend left Salt Lake City the next day

around 2:30 p.m. And they showed that Thompson and Friend 

returned to Salt Lake City on August 24 and left for Rapid City at 

5:30 a.m. on August 25. According to the logs, Thompson and 

Friend made the trip from Salt Lake City to Rapid City in just under 

ten hours.

¶12 Thompson testified that he filled out the trucking logs 

himself and that he had no “independent verification” of their 

“dates and times.” He testified that federal law required him to 

hold onto the logs for seven years and that he accurately recorded 

his trips to avoid possible fines. He also admitted that he had access 

to stacks of blank trucking logs and that he did not produce the logs 

before trial in response to the State’s pre-trial discovery request.

¶13 Friend’s testimony largely corroborated Thompson’s 

account of the trip. Like Thompson, Friend testified that they did 

not spend two consecutive nights in Salt Lake City. He testified that 

they spent one night in Salt Lake City on the way out West and one 

night there on the way back to Wisconsin. According to Friend, it 

was not possible for Thompson to have sexually assaulted A.T. on 

either morning that they were in town because Friend did not leave 

Thompson’s side for more than five minutes. Friend testified that 

he slept on the floor by the couch, less than a foot away from 

Thompson, and that he woke up before Thompson on both 

mornings.
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Opinion of the Court

5

¶14 After the defense rested its case, the State called a rebuttal 

witness, Randy West. A transportation specialist, West relied on a 

printout from computer software that calculated the average time 

it would take to drive from Rapid City to Salt Lake City. He 

reported that the trip would take more than fourteen hours, not ten. 

West testified that Thompson “cooked the books.” Thompson’s 

counsel did not challenge West’s qualifications or call a rebuttal 

expert.

¶15 During closing argument, the State acknowledged the

“minor inconsistencies” in A.T.’s testimony, but it explained that 

those inconsistencies “don’t necessarily equate to reasonable 

doubt. They’re just a mark of human fallibility.” The State stressed 

to the jury that the crimes in question occurred “many years ago” 

when A.T. was “a lot younger,” that it would be “difficult” for 

anyone to recall the details of events that occurred so many years 

ago, and that the timing of the sexual abuse “is really not that 

significant.” The State also pointed out that A.T.’s “account of the 

most significant facts was st[r]ong and believable,” and that 

Thompson had “a lot at stake” and “everything to gain by lying.”

¶16 The jury convicted Thompson on both counts of forcible 

sodomy.

Direct Appeal and 23B Remand

¶17 Thompson appealed his conviction, alleging his counsel 

was constitutionally ineffective for, among other things, failing to 

properly challenge West’s testimony. Invoking rule 23B of the Utah 

Rules of Appellate Procedure, Thompson moved for a remand to 

develop the factual record, which the court of appeals granted.3

¶18 At the evidentiary hearing, the defense presented expert 

testimony from Mark Hornung, the senior vice president of the 

company that created the software West relied on at trial. Based on 

Hornung’s testimony, the district court found that, when properly 

programmed, the software conveyed that Thompson could drive 

the route from Rapid City to Salt Lake City “in 10 hours” even if he 

“had to slow down at times while driving.”

__________________________________________________________

3 “The purpose of a rule 23B remand is to develop new evidence 

in the record, without which a defendant cannot bring his 

ineffective assistance of counsel claim on appeal.” State v. Griffin, 

2015 UT 18, ¶ 18, 441 P.3d 1166.
THOMPSON v. STATE

Opinion of the Court

6

¶19 Ultimately, the district court found that West “lacked the 

requisite knowledge, skill, experience, training and education to 

qualify as an expert for the [computer] program.” The court found 

West “did not generate the printout he used at trial” and “was not 

physically present when the printout was generated.”

Additionally, the court found that West used the 1997 version of 

the computer software, which was less reliable than the 2002 

version.

¶20 The court of appeals held that Thompson’s counsel 

performed deficiently by failing to investigate, challenge, or object

to West’s testimony. State v. Thompson, 2014 UT App 14, ¶ 91, 318 

P.3d 1221. Based on the cumulative harm of this and other errors, 

the court of appeals reversed Thompson’s conviction and 

remanded the case for a new trial. Id. The State elected not to retry 

Thompson, and the district court dismissed the case with prejudice.

Petition for Factual Innocence

¶21 In 2017, Thompson filed a petition under the PCRA, see

UTAH CODE § 78B-9-402, for a determination of factual innocence 

that would “give him back his name.”4 He averred Hornung’s 23B

testimony was newly discovered evidence that, “when viewed 

with all the other evidence in this matter,” established that 

Thompson did not sexually abuse A.T. The post-conviction court 

found that Thompson was entitled to a hearing. See id. § 78B-9-

402(9)(c)(i).

¶22 In addition to reviewing Hornung’s 23B testimony, the

court heard live testimony from A.T., Thompson, Friend, and 

others. The court also reviewed the trial transcript. “Based on the 

evidence presented at trial, on appeal, and in [the] Petition for 

Factual Innocence,” the court concluded that Thompson 

“demonstrated by clear and convincing evidence that he is 

factually innocent of the crimes” charged.

__________________________________________________________

4 The factual innocence statute entitles Thompson to seek a 

factual innocence determination even though the charges against 

him were dismissed with prejudice. See UTAH CODE § 78B-9-402(5) 

(“A person who has already obtained postconviction relief that 

vacated or reversed the person’s conviction or sentence may also 

file a petition under this part in the same manner and form as 

described above, if no retrial or appeal regarding this offense is 

pending.”).
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Opinion of the Court

7

¶23 In reaching its conclusion, the court observed that 

Hornung’s 23B testimony negated West’s trial testimony that the 

route reported on Thompson’s trucking logs could not be driven in 

under ten hours. The court also rejected the State’s argument that 

Hornung’s testimony “alone must form the basis” of the factual 

innocence determination, stating that such evidence “is just one—

albeit an important one—consideration” in the determination. The 

court found that the combination of trial and post-conviction 

evidence “weighs heavily in [Thompson’s] favor as to his alibi and 

credibility,” and on that basis the court concluded he was factually 

innocent. The State appeals.

ISSUE AND STANDARD OF REVIEW

¶24 The State contends that the post-conviction court erred in 

declaring Thompson factually innocent. It argues that the court 

incorrectly interpreted the factual innocence statute to allow the 

court to base its factual innocence determination on more than the 

newly discovered evidence, and that the court’s faulty 

interpretation led it to wrongly conclude that Thompson is 

factually innocent. We review the post-conviction court’s 

interpretation of the factual innocence statute for correctness. 

Brown v. State, 2013 UT 42, ¶ 36, 308 P.3d 486.

ANALYSIS

¶25 The State challenges the post-conviction court’s factual 

innocence determination. It contends that, because subsection 78B9-404(8) requires newly discovered evidence to be determinative of 

a petitioner’s factual innocence, the court was wrong to base its 

factual innocence determination on evidence other than Hornung’s 

23B testimony. The State further maintains that under the correct 

standard, Thompson’s newly discovered evidence does not 

establish factual innocence.

¶26 We agree with the State that subsection 78B-9-404(8) 

requires the court to base its factual innocence determination on the 

newly discovered evidence. In other words, for Thompson to 

satisfy the demands of the factual innocence statute, Hornung’s 23B 

testimony must establish Thompson’s innocence. We also agree 

with the State that Thompson has not proven factual innocence,

because Hornung’s 23B testimony does not clearly and 

convincingly show that Thompson did not sexually abuse A.T.
THOMPSON v. STATE

Opinion of the Court

8

I. THE FACTUAL INNOCENCE STATUTE REQUIRES THAT NEWLY 

DISCOVERED EVIDENCE BE THE BASIS FOR A FACTUAL

INNOCENCE DETERMINATION

¶27 Under the factual innocence statute, a person convicted of 

a felony may petition the district court for a hearing to establish 

factual innocence.5 See generally UTAH CODE §§ 78B-9-401 to -405. In 

so doing, the petitioner must aver, among other things, that “newly 

discovered material evidence exists that, if credible, establishes that 

the petitioner is factually innocent,” id. § 78B-9-402(2)(a)(i), 

meaning the petitioner did not “engage in the conduct for which 

the [petitioner] was convicted,” id. § 78B-9-401.5(2)(a). “If the court 

determines that the statute’s threshold requirements are met and 

that ‘there is a bona fide and compelling issue of factual innocence 

regarding the charges of which the petitioner was convicted,’ the 

district court must hold a hearing.” Ashby v. State, 2023 UT 19, ¶ 47, 

535 P.3d 828 (quoting UTAH CODE § 78B-9-402(9)(c)(i)).

¶28 Ultimately, the petitioner bears the burden of establishing

factual innocence by clear and convincing evidence. See UTAH CODE

§ 78B-9-404(1)(b). To satisfy this burden, “the petitioner must 

affirmatively prove innocence of both the crime for which the 

petitioner was convicted and any related criminal conduct.” 

Gressman v. State, 2013 UT 63, ¶ 39, 323 P.3d 998; see also UTAH CODE

§ 78B-9-401.5(2). The court, in determining whether this burden has 

been met, “shall consider, in addition to the evidence presented at 

the hearing under this part, the record of the original criminal case 

and at any postconviction proceedings in the case.” UTAH CODE

§ 78B-9-404(3). Critically, the court may not find that the petitioner 

is factually innocent unless it determines that the petitioner did not 

commit the offense of which the petitioner was convicted and “the 

__________________________________________________________

5 If factual innocence is established, a petitioner is entitled to an 

order of expungement and a letter from the court stating that the 

petitioner was found to be factually innocent and did not commit 

the crimes for which the petitioner was convicted. See UTAH CODE

§ 78B-9-405(9). And, if the petitioner was incarcerated, the 

petitioner is entitled to a monetary payment from the State. See id.

§ 78B-9-405(2)(a) (requiring payment of the monetary equivalent of 

the average annual nonagricultural payroll wage in Utah every 

year the petitioner was incarcerated, up to a maximum of fifteen 

years).
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Opinion of the Court

9

determination is based upon the newly discovered material 

evidence described in the petition.” Id. § 78B-9-404(8)(b).

¶29 The crux of the parties’ dispute here concerns the meaning 

of the phrase “based upon” as it is used in subsection 404(8). The 

State contends that to satisfy the statute’s requirements, the newly 

discovered evidence “must be the basis for the factual innocence 

finding.” According to the State, this means that while the postconviction court must “consider” all the evidence, it is the newly 

discovered evidence that “must be determinative.” In other words, 

the new evidence “must be the thing that shows innocence in light 

of existing evidence. It must be a complete game-changer.”

¶30 In contrast, Thompson contends that “based upon” means 

merely that the newly discovered evidence must “play a role” in 

the factual innocence determination. He argues that it suffices for 

the newly discovered evidence to “cast[] the old evidence in a new 

light.” Relying heavily on the statute’s requirement that the court 

consider all the evidence, Thompson points to our decision in 

Brown v. State, where we held that “the plain language of the 

[factual innocence statute] allows a court to base its determination 

of factual innocence on all available evidence—both old and new.” 

2013 UT 42, ¶ 45, 308 P.3d 486.

¶31 To resolve this disagreement, we begin with subsection 

404(8)’s plain language, with the aim of “giv[ing] effect to the intent 

of the Legislature.” State v. Trujillo, 2019 UT 5, ¶ 13, 439 P.3d 588 

(cleaned up). “But we do not interpret the ‘plain meaning’ of a 

statutory term in isolation. Our task, instead, is to determine the 

meaning of the text given the relevant context of the statute 

(including, particularly, the structure and language of the statutory 

scheme).” Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 12, 248 P.3d 

465.And we seek to “give effect to every word of a statute, avoiding 

any interpretation which renders parts or words in a statute 

inoperative or superfluous.” Bountiful City v. Baize, 2021 UT 9, ¶ 42, 

487 P.3d 71 (cleaned up).

¶32 Subsection 404(8) provides,

The court, after considering all the evidence, may not 

find the petitioner to be factually innocent unless:

(a) the court determines by clear and convincing 

evidence that the petitioner did not commit one or 

more of the offenses of which the petitioner was 

convicted . . . ; and (b) the determination is based 
THOMPSON v. STATE

Opinion of the Court

10

upon the newly discovered material evidence 

described in the petition . . . .

UTAH CODE § 78B-9-404(8).

¶33 Focusing first on the plain meaning of “based upon,” we 

conclude that the State has the better of the arguments. For an 

innocence determination to be “based upon” newly discovered 

evidence, as that phrase is ordinarily understood, the newly 

discovered evidence must be the “basis” or “foundation” for the 

determination. See Base, MERRIAM-WEBSTER, https://

www.merriam-webster.com/dictionary/base (last visited July 16, 

2024) (defining “base,” when used as a verb with on or upon, as “to 

find a foundation or basis for”). The plain language does not 

suggest it is enough for the new evidence to merely “play a role.” 

By requiring the factual innocence determination to be “based 

upon” the newly discovered evidence, the legislature has 

expressed its intent that the newly discovered evidence be the 

foundation of the court’s determination.

¶34 This interpretation of “based upon” is further supported 

by related provisions in the factual innocence statute. Indeed, 

under subsection 402(2)(a), to even receive a factual innocence 

hearing, the petitioner must averin a factual innocence petition that 

“newly discovered material evidence exists that, if credible, 

establishes that the petitioner is factually innocent”; that “the 

specific evidence identified by the petitioner in the petition 

establishes innocence”; and that “viewed with all the other 

evidence, the newly discovered evidence demonstrates that the 

petitioner is factually innocent.”6 UTAH CODE § 78B-9-402(2)(a)(i), 

(ii), (v). In all three instances, the newly discovered evidence is 

doing the work. Even the third requirement, which anticipates that 

the new evidence will be viewed with all other evidence, mandates 

that the newly discovered evidence demonstrates factual 

__________________________________________________________

6 Thompson did not try to satisfy this requirement in his 

petition. Instead, he argued that his innocence was established by 

the newly discovered evidence plus his testimony, the trucking 

logs, Friend’s testimony, and A.T.’s inconsistencies and motive to 

lie. His approach conflicted with the plain language of subsection 

402(2) but was consistent with observations we made in Brown v. 

State about the former version of the statute. See 2013 UT 42, ¶ 48, 

308 P.3d 486 (interpreting the 2010 version of the factual innocence 

statute); see also infra ¶¶ 34 n.7, 37.
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Opinion of the Court

11

innocence. Had the legislature intended the statute to work in the 

way Thompson suggests, the statute presumably would have 

required the petitioner to aver that, when viewed with the newly 

discovered evidence, the body of evidence demonstrates that the 

petitioner is factually innocent.7

¶35 Thus, from the outset of the factual innocence process, the 

legislature set the expectation that it is the newly discovered 

evidence that will establish a petitioner’s innocence. To construe 

subsection 404(8) as merely requiring that the new evidence “cast 

the old evidence in a new light,” we would not only need to 

disregard the provision’s plain language, but we would have to 

conclude that the legislature designed a statutory scheme that 

required more of the newly discovered evidence at the petition 

stage than at the hearing. This we cannot do.

¶36 Thompson, however, pushes back on this interpretation.

He refers us to Brown, where we interpreted the factual innocence 

statute and concluded that it allows a court to base its innocence 

determination on “both old and new” evidence. (Quoting 2013 UT 

42, ¶ 45.) Thompson acknowledges that the statute has since been 

amended and that subsection 404(8) is a new addition. Still, he 

invites us to view the amendment as a codification of Brown and 

contends that the new language does not demand a different 

__________________________________________________________

7 We recognize that in interpreting a prior version of the factual 

innocence statute, we viewed section 402 differently. See Brown, 

2013 UT 42, ¶ 42. In Brown, we were asked to interpret section 404 

and “consider[ed] section 402 only to place section 404 in proper 

context.” Id. ¶ 40 n.22. Although we twice noted that section 402 

requires a petitioner to allege that the newly discovered evidence 

“establishes factual innocence,” id. ¶¶ 46, 51, we also stated that,

because the factual innocence statute did not “state that the newly 

discovered evidence alone must be determinative,” section 402 

“contemplate[d] that it [would] require a combination of new and 

old evidence to establish factual innocence,” id. ¶ 48. We view 

section 402 differently today because the legislature’s addition of 

subsection 404(8) casts section 402 in a different light. As we 

explain, see infra ¶ 39, section 404 now provides the “clear 

directive” that was missing from the prior version of the statute, see 

Brown, 2013 UT 42, ¶ 50, and this addition illuminates the 

legislature’s overall intent in a way the previous version of the 

statute didn’t.
THOMPSON v. STATE

Opinion of the Court

12

interpretation. He further challenges the State’s interpretation as 

“irreconcilable” with the statute’s plain language because the 

statute “explicitly and repeatedly instructs the district court to 

consider all the evidence.” And he suggests that interpreting the 

statute to require the post-conviction court to base its 

determination of factual innocence “solely” on the newly 

discovered evidence “would improperly render these provisions 

superfluous.”

¶37 We begin with Brown. There, the State argued—just as it 

does now—that the post-conviction court erred in basing its factual 

innocence determination on a combination of newly discovered 

evidence and previously available evidence. Brown, 2013 UT 42,

¶ 38. We rejected that argument, holding that “a determination of 

factual innocence can be based on a combination of newly 

discovered evidence and previously available evidence.” Id. ¶ 54.

To reach that conclusion, we analyzed the plain language of section 

404 as it existed in 2010.8 See id. ¶ 40 n.21.

¶38 At that time, section 404 looked much like it does today 

except for one “[i]mportant[]” difference: it did not include 

subsection 404(8) or its requirement that the court’s factual 

innocence determination be “based upon” the newly discovered 

evidence. See id. ¶ 50; UTAH CODE § 78B-9-404 (2010). Instead, the 

only relevant instruction in section 404 was its directive to the court 

to “consider, in addition to the evidence presented at the [factual 

innocence] hearing . . . , the record of the original criminal case and 

at any postconviction proceedings in the case.” UTAH CODE § 78B9-404(3) (2010). Section 404 did not, as it does today, prohibit the 

post-conviction court from declaring the petitioner factually 

innocent unless the determination “is based upon the newly 

discovered material evidence described in the petition.” Compare id.

§ 78B-9-404 (2010), with id. § 78B-9-404(8) (2024). In fact, the prior 

version of section 404 “never use[d] the phrase ‘newly discovered 

evidence,’” nor did it “provide any direction on how much weight 

__________________________________________________________

8 We issued Brown in 2013, but we interpreted the 2010 version 

of the statute because that was the version that applied to Brown’s 

innocence petition. See 2013 UT 42, ¶ 40 n.21. Because the 

legislature amended the statute to add subsection 404(8) in 2012—

before Brown was issued—we have no basis to construe the 

amendment as a codification of our analysis, as Thompson 

suggests. See supra ¶ 36.
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Opinion of the Court

13

to place on any one type of evidence.” Brown, 2013 UT 42, ¶ 50. And 

this lack of direction drove our analysis in Brown.

¶39 But, as explained, the current version of the statute 

provides the very direction that was missing in 2010: that a 

determination of factual innocence be “based upon the newly 

discovered material evidence.” UTAH CODE § 78B-9-404(8)(b). Thus, 

our analysis in Brown no longer applies. Cf. State v. Robinson, 2023 

UT 25, ¶¶ 23–24, 540 P.3d 614 (explaining that our caselaw 

interpreting a prior version of a court rule does not govern after the 

rule was amended in a material way). With this added direction, 

we can no longer conclude that section 404 permits a court to base 

its determination of factual innocence on a combination of newly 

discovered evidence and previously available evidence. See supra

¶ 37.

¶40 Even so, Thompson resists this interpretation, asserting 

that it can’t be reconciled with the statute’s explicit and repeated 

instruction to the court to “consider” all the evidence. He reasons 

that an interpretation requiring the post-conviction court to base its 

innocence determination “solely” on the newly discovered 

evidence renders superfluous the instructions to consider the rest 

of the evidence. Thompson’s primary observation is well taken—

the factual innocence statute repeatedly instructs the postconviction court to consider all the evidence. We count four 

occasions. Subsection 404(3) states that, in making its factual 

innocence determination, the court “shall consider, in addition to 

the evidence presented at the hearing under this part, the record of 

the original criminal case and at any postconviction proceedings in 

this case.” UTAH CODE § 78B-9-404(3). Subsections 404(4) and 

404(5)(a) each instruct the court on what to do if, “after considering 

all the evidence,” it does or does not determine that the petitioner 

is factually innocent. Id. § 78B-9-404(4), (5)(a). And, as mentioned, 

see supra ¶ 32, subsection 404(8) details when “[t]he court, after 

considering all the evidence,” may find a petitioner to be factually 

innocent, UTAH CODE § 78B-9-404(8).

¶41 But we disagree with Thompson’s conclusion that the 

State’s proffered interpretation of subsection 404(8) conflicts with 

these provisions or renders them superfluous. The legislature’s 

repeated instruction to consider all the evidence plays a significant 

part in the post-conviction court’s factual innocence analysis, not 

least because the record of the underlying case provides necessary

context to make sense of the new evidence. The post-conviction 
THOMPSON v. STATE

Opinion of the Court

14

court might not be the same court that tried the petitioner (or 

accepted a guilty plea), and in such a circumstance it would be 

difficult for the court to assess the import of newly discovered

evidence in a vacuum. It is the record of the original case that 

imbues the new evidence with meaning. For example, if, after one 

person is convicted of assault, someone else were to come forward 

and confess to assaulting the victim, that newly discovered 

evidence could suggest innocence on the part of the person who 

was convicted. But, for the court to make that determination, it 

would need to know, at the very least, whether the victim claimed 

there was more than one assailant. If the victim testified that there 

was only one assailant, the new evidence—if credible—would 

establish innocence. If the victim testified there were two assailants, 

however, the new evidence would not necessarily confirm the 

petitioner’s innocence. To determine whether the new evidence 

established innocence, the court would need to “consider” the 

evidence already in the record.

¶42 Additionally, as we recognized in Ashby v. State, the postconviction court is tasked with “carefully scrutiniz[ing]” the 

credibility of the newly discovered evidence. 2023 UT 19, ¶¶ 60–61, 

71. And that credibility assessment could be informed by other 

evidence in the record. For example, in Ashby, we stated that “other 

evidence [may be] relevant to whether [a] recantation [of abuse] is 

credible, including the circumstances under which the original 

accusations were made.” See id. ¶ 71. We observed that in assessing 

the credibility of the newly discovered evidence, a post-conviction 

court may need to consider, among other things, “observations by 

witnesses of the recanting witness when making the initial 

accusations,” “the nature and detail” of the initial accusations, and 

“whether the [initial] accusations were made under oath.” See id. 

(cleaned up). As this list demonstrates, the court could not fully 

assess the credibility of the recantation if it was unable to 

“consider” the entirety of the record.9

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9 In Brown, we noted that “it would be strange to direct a court 

to consider ‘all the evidence’ but then limit its decision to only the 

pivotal new evidence, especially without giving the court any guidance 

on how to determine whether a given piece of evidence is, in fact, pivotal.”

2013 UT 42, ¶ 52 (emphasis added). But section 404, as amended, 

now provides that guidance, identifying the pivotal evidence as the 

newly discovered evidence. See UTAH CODE § 78B-9-404(8).
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Opinion of the Court

15

¶43 Finally, Thompson argues that this interpretation of 

subsection 404(8) “makes no sense from a practical perspective.”

He asserts that, as construed, this subsection would tie the court’s 

hands and preclude it from, for instance, considering the trial 

testimony of ten eyewitnesses if the defense were to introduce a 

new alibi witness in a post-conviction factual innocence 

proceeding. Thompson argues that under the State’s reading, “only 

the testimony of the alibi witness could be considered, and the 

testimony of the ten original eyewitnesses would have to be 

ignored.”

¶44 Our response to Thompson’s concern is twofold. First, the 

premise of his argument is flawed. Subsection 404(8), and the 

factual innocence statute generally, not only permits but instructs 

the post-conviction court to consider the trial testimony of the ten 

eyewitnesses that Thompson contemplates. Thus, under the 

statute, their testimonies couldn’t be ignored, and the court would 

need to consider that evidence in evaluating whether the new alibi 

evidence clearly and convincingly establishes factual innocence. 

Second, it may be true that the factual innocence statute, as 

amended, now requires more precision on the part of the postconviction court because the court must ensure its determination is 

based on the newly discovered evidence and not something else. 

But we have no reason to believe that courts cannot separate the 

old from the new, and in any event, it would not be our place to 

rewrite the statute with a different design. See, e.g., State v. Herrera, 

895 P.2d 359, 362 (Utah 1995) (“Th[e] delicate balancing of public 

policy is better accomplished in the legislature than in the courts.”).

II. HORNUNG’S 23B TESTIMONY DOES NOT ESTABLISH THOMPSON’S 

FACTUAL INNOCENCE

¶45 Under the factual innocence statute, Thompson bore the 

burden to present newly discovered evidence that would clearly 

and convincingly show that he did not sexually assault A.T. in 

August 2002 in Salt Lake City. See UTAH CODE § 78B-9-404(1)(b).

Thompson does not contend that Hornung’s 23B testimony, on its 

own, demonstrates his factual innocence. Instead, he asserts—as he 

did before the post-conviction court—that Hornung’s 23B 

testimony, “along with all the other evidence,” clearly and 

convincingly shows his factual innocence. His view was, and still 

is, that Hornung’s testimony casts “old evidence in a new light” by 

showing that the trucking logs introduced at trial “accurately 

reflect [Thompson’s] whereabouts for the time specified therein.”
THOMPSON v. STATE

Opinion of the Court

16

¶46 Following Thompson’s lead, the post-conviction court 

rejected the State’s argument that Hornung’s 23B testimony “alone 

must form the basis” of its factual innocence determination. It 

found that Hornung’s 23B testimony undermined West’s 

testimony at trial that the route on Thompson’s trucking logs could 

not have been completed in the time recorded. And it found that 

the combination of trial and post-conviction evidence “weigh[ed] 

heavily in [Thompson’s] favor as to his alibi and credibility.”

¶47 Both Thompson’s position and the court’s ruling conflict 

with subsection 404(8). As discussed, see supra ¶¶ 29–39, subsection 

404(8) requires newly discovered evidence to be determinative. A 

determination of a petitioner’s factual innocence cannot be based 

upon trial evidence, even if that trial evidence has been cast “in a 

new light.” Thus, while it was proper for the court to consider 

Thompson’s testimony and his trucking logs, the court could not 

base its factual innocence determination on that evidence. And it is 

clear that Hornung’s 23B testimony does not establish Thompson’s 

factual innocence.

¶48 Hornung’s 23B testimony impeached the trial testimony of 

West, who called the reliability of Thompson’s trucking logs into 

question. In so doing, Hornung mitigated the damage West 

inflicted on Thompson’s credibility and the credibility of his 

trucking logs.10 Yet Hornung’s testimony did not, and could not, 

establish that the logs were accurately or contemporaneously kept,

that Thompson traveled on the date and in the timeframe reported 

in his log, or that Thompson did not sexually assault A.T. in August 

of 2002. At best, Hornung’s testimony demonstrated that 

Thompson’s alibi was plausible: that he could have traveled from 

Rapid City to Salt Lake City in ten hours, as recorded in his log. But 

Hornung’s testimony did not establish that Thompson did not 

“engage in the conduct for which [he] was convicted.” UTAH CODE

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10 The State asserts that Hornung’s 23B testimony cannot 

establish factual innocence for the additional reason that “it is mere 

impeachment evidence.” It cites section 402 of the factual innocence 

statute, which requires a petitioner to aver at the petition stage that 

“the material evidence is not merely impeachment evidence.” 

UTAH CODE § 78B-9-402(2)(a)(iv). We have no need to address 

whether Hornung’s testimony constitutes mere impeachment 

evidence because Hornung’s testimony, however characterized, 

cannot establish Thompson’s factual innocence.
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Opinion of the Court

17

§ 78B-9-401.5(2)(a). Accordingly, we must reverse the postconviction court’s factual innocence determination.

CONCLUSION

¶49 Under the plain language of Utah Code subsection 78B-9-

404(8), a post-conviction court’s factual innocence determination 

must be based upon newly discovered evidence. On its own, 

Hornung’s 23B testimony does not establish Thompson’s factual 

innocence. It could neither confirm nor deny Thompson’s 

whereabouts, and thus it could not clearly and convincingly 

establish that Thompson did not sexually abuse A.T. in August 

2002. The post-conviction court erred in basing its factual innocence 

determination on Thompson’s testimony and trucking logs, which 

were available at trial, rather than on Hornung’s 23B testimony. 

Accordingly, we reverse.