State v. Thornton

This opinion is subject to revision before final

publication in the Pacific Reporter

2017 UT 9

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Appellant,

v.

ROBERT DAMIEN THORNTON,

Appellee.

No. 20150029

Filed February 21, 2017

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake

The Honorable Katie Bernards-Goodman

No. 111900297

Attorneys:

Sean D. Reyes, Att‘y Gen., Karen A. Klucznik, Asst. Att‘y Gen.,

Salt Lake City, for appellant

Debra M. Nelson, Joan C. Watt, Salt Lake City, for appellee

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in

which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, and JUDGE BEAN

joined.

JUSTICE DURHAM filed a concurring opinion with respect to Part III.B.

Having recused himself, JUSTICE PEARCE does not participate herein;

DISTRICT JUDGE JOSEPH M. BEAN sat.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 Robert Damien Thornton was convicted of multiple counts of

rape, sodomy, and sexual abuse of a twelve-year-old victim, B.Z. On

appeal Thornton challenged a pair of evidentiary rulings made by

the district court. He argued that the district court erred in admitting

evidence of his past misconduct under Utah Rule of Evidence 404(b)

and in precluding him from questioning the victim about her sexual

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Opinion of the Court

history. On the latter point, Thornton argued that he was entitled to

present evidence of the victim‘s sexual experience under Utah Rule

of Evidence 412 and the Sixth Amendment of the U.S. Constitution.

¶2 The court of appeals reversed Thornton‘s conviction. State v.

Thornton, 2014 UT App 265, 339 P.3d 112. It found error in the

admission of evidence of Thornton‘s past misconduct—of his alleged

sale of drugs to B.Z.‘s mother and encouragement of B.Z‘s mother‘s

prostitution. Specifically, the court of appeals held that the district

court erred in failing to perform a ―scrupulous examination‖ of the

character evidence introduced by the prosecution. Id. ¶ 38. For years

our cases have used this phrase in describing the district court‘s role

in assessing character evidence under rule 404(b). See, e.g., State v.

Decorso, 1999 UT 57, ¶ 18, 993 P.2d 837; State v. Lucero, 2014 UT 15,

¶ 37, 328 P.3d 841. The court of appeals took that requirement to

encompass a duty to assess the drug and prostitution evidence

separately. Thornton, 2014 UT App 265, ¶ 40. And because the district

court lumped the two sub-classes of character evidence together in

its analysis under rule 404(b), the court of appeals found error. It also

deemed the error prejudicial.

¶3 We reverse the court of appeals and reinstate the judgment of

conviction. We find no error in the district court‘s evidentiary ruling

because we affirm its decision admitting evidence of Thornton‘s

alleged involvement in the drug transactions and prostitution at

issue in the case. And we emphasize that the appellate review of

evidentiary rulings is on the decision made at trial, not the process

by which that decision is reached. In so concluding, however, we

acknowledge that our prior decisions leave room for the approach

taken by the court of appeals. We accordingly repudiate the

language in our prior opinions that speaks of ―scrupulous

examination‖ of character evidence under rule 404(b)—finding that

such language is more confusing than helpful.

¶4 We also affirm the court of appeals‘ decision affirming the

district court‘s denial of Thornton‘s bid to present evidence of the

victim‘s prior sexual history under rule 412 and the Sixth

Amendment. We recognize that the Confrontation Clause sometimes

entitles a defendant to question a witness about an essential element

of his defense. But the defendant failed to lay a foundation for any

such argument here. On this record, Thornton cannot show that his

interrogation of the victim as to her sexual experience was essential

to a foundational element of his defense. And we accordingly

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conclude that there was no error in the district court‘s refusal to

allow him to present this evidence to the jury.

I. BACKGROUND

A. Facts and Trial Court Proceedings

¶5 Twelve-year-old B.Z. lived with her mother and stepfather in

a two-bedroom apartment.1 After B.Z.‘s stepfather was incarcerated

her mother began renting out one of the rooms. Thornton became

one of the tenants. He moved into the apartment with his girlfriend.

The two of them stayed in B.Z.‘s bedroom. B.Z. slept in the front

room most of the time but would occasionally sleep in her bedroom.

¶6 B.Z.‘s mother had long suffered from serious substance-abuse

problems. She was addicted to methadone, which she took to deal

with chronic pain. To treat that addiction, she went to a methadone

clinic each morning.

¶7 Thornton allegedly was a drug dealer. For a time he agreed to

provide B.Z.‘s mother with crack cocaine in lieu of rent. After a few

months, however, Thornton told B.Z.‘s mother that she would have

to begin paying for the drugs he was giving her. He also allegedly

encouraged her to engage in prostitution to make money to pay for

the drugs. She did so. She brought clients home and had sex with

them in the apartment. B.Z. was aware that her mother was a

prostitute and was having sex with various men in the apartment.

¶8 As her mother‘s addiction intensified, B.Z. was increasingly

neglected. She stopped attending school even though she had once

been earning ―A‖ grades. And she was often left unfed and without

much attention from her mother.

¶9 Thornton‘s girlfriend was arrested about a month after she

and Thornton moved into the household. Thornton began flirting

with B.Z. shortly thereafter. He began to touch her in sexually

suggestive ways, such as patting her on the buttocks. Eventually, one

morning while B.Z.‘s mother was at the methadone clinic, Thornton

dragged B.Z. into the bedroom and forced her to have sex with him.

¶10 After the first rape, Thornton continued to force himself upon

B.Z. He did so each morning while her mother was at the clinic.

While at first she fought him off, she eventually surrendered. And

1 The facts as presented here are in the light most favorable to the

jury verdict.

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she began to develop what she perceived as romantic feelings for

him—feelings she expressed in letters. Thornton also gave B.Z. a

Christmas present and showered her with affection.

¶11 At first B.Z. did not say anything to her mother about the

rape. She felt that her mother was too addicted to drugs to care and

too dependent on Thornton to do anything about it. B.Z. also noted

that her relationship with her mother had deteriorated as Thornton

became increasingly abrasive and hostile toward the mother.

Thornton also threatened B.Z. with violence if she revealed what he

had done.

¶12 After a couple of months B.Z. finally told her mother that

Thornton had been having sex with her. She also declared that she

believed she was pregnant with Thornton‘s child. The mother did

not call the police herself because she had an outstanding warrant

against her. But she told her neighbor about the rape. The neighbor

called the police, who came and arrested both Thornton and B.Z.‘s

mother.

¶13 B.Z. was taken to a group home and asked about the sexual

abuse. At first she denied the abuse. But in a subsequent interview

she told the detectives that Thornton had repeatedly raped her.

¶14 By the time B.Z. was examined by medical staff, it was too late

to perform a rape test. A pregnancy test revealed that she was not

pregnant. And the medical professionals found no physical evidence

of rape. Yet B.Z. told investigators that after sex Thornton would

wipe himself off on a brown sweater in their room. And forensic

testing found evidence of Thornton‘s semen on the sweater.

¶15 Thornton was charged with multiple counts of rape of a child,

sodomy of a child, and aggravated sexual abuse of a child. He was

tried three times. The first trial ended in a mistrial. The second

resulted in a hung jury. On the third trial the jury finally reached a

verdict. It found Thornton guilty on all counts.2

¶16 At each of the three trials two evidentiary disputes came to

the fore. The first involved the State‘s attempt to introduce evidence

that Thornton had supplied B.Z.‘s mother with drugs and had

encouraged her involvement in prostitution. At the first trial the

parties stipulated to exclude this evidence. But a mistrial ensued

2 Thornton was also convicted of witness-tampering, but he has

not appealed this conviction and it is not before us.

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when the mother volunteered information about Thornton‘s role in

her prostitution—in response to (permitted) questions about her

time as a prostitute. At the second trial the parties entered into the

same stipulation. And this time the stipulation was honored—the

evidence was not admitted. The result, as noted, was a hung jury.

¶17 Before the third trial, the State moved for admission of this

evidence under rule 404(b). The State‘s basis for admission was that

the evidence was relevant to a non-character purpose—to helping

the jury understand the circumstances that gave Thornton the

opportunity to abuse B.Z., and that discouraged her from coming

forward sooner.

¶18 The district court granted the State‘s motion. It allowed the

evidence to be admitted with a limiting instruction. The instruction

indicated that the evidence was to be considered only ―for the

limited purpose of determining Defendant‘s position of power or

trust in the household or in understanding the victim‘s behavior.‖

Jury Instruction No. 28. It also stated that the evidence could not be

used to establish Thornton‘s character or propensity to commit

crime. Id.

¶19 Thus, the district court concluded that the evidence of

Thornton‘s drug dealing and involvement in B.Z.‘s mother‘s

prostitution was essential to provide a relevant narrative. It therefore

held that the evidence served a legitimate non-character purpose

under rule 404(b). And it also determined that the evidence was

relevant and not unduly prejudicial.

¶20 The second category of disputed evidence involved the sexual

history of the victim. Around the time of Thornton‘s sexual acts

against B.Z., she was also engaged in a consensual sexual

relationship with a fourteen-year-old friend of hers. Thornton sought

to question B.Z. about this relationship in order to rebut the

assumption that as a twelve-year-old she would be sexually

innocent.

¶21 At the start of the first trial, the judge held that B.Z. could not

be asked about her sexual history. In so ruling the judge concluded

that this evidence was not essential to the defense because

―Defendant had several other means by which he can establish that

B.Z. had sexual knowledge well beyond that of a traditional twelve-

year-old.‖ Ruling and Order at 6 (Sept. 14, 2011). With this in mind,

the court concluded that introduction of evidence of B.Z.‘s sexual

history ―would do little more than damage [B.Z.‘s] integrity among a

jury[,] which is the very problem Rule 412 seeks to address.‖ Id. at 7.

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¶22 B.Z. presented detailed testimony about the rape at trial. She

testified that the sex ―hurt really bad‖ and felt like she ―was being

ripped open.‖ Trial Transcript at 28 (Sept. 25, 2012). She remembered

that it had ―stung really bad‖ and that she had ―white gooey stuff‖

in her urine. Id. After B.Z. testified, the defense asked the court to

reconsider its exclusion of the rule 412 evidence. But the trial judge

denied that motion.

¶23 This played out similarly in the second and third trials.

Thornton renewed his motion for reconsideration and the trial judge

again denied it. And B.Z. testified at each trial along the same lines.

¶24 When cross-examining B.Z., the defense asked her about the

fact that her mother was a prostitute and asked how she knew about

it. But the defense did not ask B.Z. what she might have learned

from her mother‘s descriptions of or involvement in prostitution.

Nor did counsel ask the judge to conduct an in camera review to

show that B.Z.‘s familiarity with sex could not have come from her

interactions with her mother or her knowledge of her mother‘s

prostitution. And Thornton did not contend—in closing argument or

otherwise—that B.Z. was able to describe sex acts because of

knowledge gained from her mother.

¶25 In closing argument the State characterized B.Z. as a child in a

couple of contexts. It suggested that her youth explained early

inconsistencies in her statements to the police or her infatuated love

letters. And it asserted that someone of her age would not have

known about the semen on the sweater had she not been there to

witness it. But the prosecution did not claim that B.Z.‘s youth

confirmed the truthfulness of her descriptions of sexual sensations. It

did not assert, in other words, that a child of her age could not have

described sex in the way she did unless she had been raped.

¶26 The jury found Thornton guilty on all counts in the third trial.

Thornton then filed an appeal.

B. Appeal

¶27 On appeal Thornton challenged the verdict on the basis of

two evidentiary errors at trial—in the admission of evidence of

Thornton‘s bad acts and in the exclusion of evidence of B.Z.‘s sexual

history. The court of appeals reversed. State v. Thornton, 2014 UT

App 265 ¶ 34, 339 P.3d 112. It affirmed the decision to exclude the

evidence of B.Z.‘s sexual history under rule 412, but reversed on the

basis of the decision to admit evidence of Thornton‘s bad acts, which

it deemed error under our precedents. Id. ¶ 47.

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¶28 The district court‘s error, in the court of appeals‘ view, was in

failing ―to perform the exacting review required before Rule 404(b)

evidence can be admitted.‖ Id. ¶ 34. Thus, the court of appeals

acknowledged that the district court‘s analysis in many respects

―reflect[ed] the ‗care and precision‘ our case law requires.‖ Id. ¶ 39

(citation omitted). But it nonetheless found the district court‘s

approach deficient. It noted that ―the district court took two separate

categories of bad acts . . . and analyzed them as a single unit.‖ Id.

¶ 40. And it concluded that ―[l]umping both types of bad acts into

the same analytical bin prevented the district court from accounting‖

for the distinct potential for prejudice that each had, or from

engaging in the ―careful[] weigh[ing]‖ required under our precedent.

Id. ¶ 41 (second alteration in original) (citation omitted).

¶29 The court of appeals was concerned that the district court had

failed to recognize that the ―jury‘s reaction to evidence of drug

dealing could be markedly different than its reaction to evidence of a

defendant pressuring a drug-addicted woman into prostitution.‖ Id.

It feared that the prostitution evidence ―could also provide a jury

with a greater temptation to draw an improper inference

about Thornton‘s propensity to commit the charged sex crimes.‖ Id.

And if the district court had analyzed the two pieces of evidence

separately, the court of appeals thought it ―might have determined‖

that the drug evidence was admissible even if the prostitution

evidence was not. Id. ¶ 42.

¶30 The court of appeals accordingly concluded that the district

court‘s ―analysis failed to clear the analytical bar‖ that our cases

demand. Id. ¶ 38. So ―[w]ithout opining on the ultimate admissibility

of th[e] evidence,‖ it found reversible error. Id.

¶31 Despite reversing the district court on the 404(b) evidence, the

court of appeals agreed with its analysis on the admissibility of the

victim‘s sexual history. It considered and rejected two bases for

admission proffered by the defendant. First, it rejected Thornton‘s

argument that B.Z.‘s ―pregnancy belief [or] her sexual knowledge

constitutes‖ physical evidence under rule 412(b)(1), id. ¶ 21—

evidence offered ―to prove that someone other than the defendant

was the source of semen, injury, or other physical evidence.‖ Id. ¶ 19.

The court of appeals deemed the 412(b)(1) exception to apply only to

―physical evidence.‖ Id. ¶ 21. And it thought that Thornton‘s

argument improperly ―stretches the language‖ beyond its

permissible meaning. Id.

¶32 Second, the court of appeals turned to Thornton‘s argument

that the evidence was admissible under rule 412(b)(3) because its

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exclusion ―would violate the defendant‘s constitutional rights.‖

UTAH R. EVID. 412(b)(3). It noted that Thornton claimed that

―admission of the evidence was required to vindicate his

constitutional rights to conduct reasonable cross-examination and

present a complete defense.‖ Thornton, 2014 UT App 265, ¶ 22. But it

held that this evidence was not essential to Thornton‘s defense

because it was ―unlikely that the jury would have viewed [B.Z.] as a

‗sexual innocent‘‖ given B.Z.‘s ―unusual home environment.‖ Id.

¶ 28. For these reasons, the court of appeals concluded that this

evidence ―would have done ‗little more than damage [B.Z.‘s]

integrity‘‖ in the eyes of the jury. Id. ¶ 29 (citation omitted). Finally,

the court of appeals noted that the State ―did not actively exploit the

district court‘s rule 412 ruling‖ by unduly focusing on B.Z.‘s sexual

innocence at trial. Id. ¶ 32 n.7. So it concluded that ―[t]he district

court did not abuse its discretion‖ in excluding this evidence. Id.

¶ 30.

¶33 The State filed a petition for certiorari challenging the decision

to reverse Thornton‘s conviction on the basis of the district court‘s

404(b) analysis. Thornton filed a cross-petition. He sought to

challenge the decision to affirm the refusal to allow the admission of

evidence of B.Z.‘s sexual history under rule 412. We granted the

parties‘ petitions. Our review is de novo. In considering the court of

appeals‘ decision, however, we assess whether ―it accurately

reviewed the trial court‘s decision under the appropriate standard of

review.‖ State v. Verde, 2012 UT 60, ¶ 13, 296 P.3d 673 (citation

omitted).

¶34 We reverse the court of appeals‘ decision to reverse

Thornton‘s conviction on the basis of the admission of his prior bad

acts under rule 404(b). And we affirm the court of appeals‘ decision

on B.Z.‘s sexual history under rule 412. Thus, we reinstate the jury

verdict and judgment of conviction on the various counts against

Thornton.

II. EVIDENCE OF THORNTON‘S PRIOR MISCONDUCT UNDER

RULE 404(b)

¶35 Utah Rule of Evidence 404(b) regulates a sensitive evidentiary

matter. On one hand, the rule recognizes the dangers of exposing a

jury to evidence of a defendant‘s acts of prior misconduct—

specifically, the risk that the jury will infer ―that the defendant has a

reprehensible character, that he probably acted in conformity with it,

and that he should be punished for his immoral character in any

event.‖ Verde, 2012 UT 60, ¶ 29. The rule deems that inference

impermissible. It holds that ―[e]vidence of a crime, wrong, or other

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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.‖ UTAH R. EVID. 404(b)(1).

¶36 On the other hand, the rule also recognizes that acts of prior

misconduct may also sustain an alternative—and entirely

permissible—inference. ―When past misconduct evidence is offered

for any other purpose‖—other than to ―suggest action in conformity

with‖ the bad character suggested by his prior bad acts—such

evidence ―is admissible‖ so long as it satisfies rules 402 and 403.

Verde, 2012 UT 60, ¶ 15. Thus, our rules of evidence recognize that

evidence of prior misconduct may be both relevant and not unduly

prejudicial. And our rules deem such use of this evidence

appropriate.

¶37 ―That much is clear‖ from the terms of rule 404(b). Verde, 2012

UT 60, ¶ 16. Yet our cases have long recognized a difficulty

embedded in the seemingly simple dichotomy set forth in the rule.

―The difficulty . . . springs from the fact that evidence of prior bad

acts often will yield dual inferences—and thus betray both a

permissible purpose and an improper one.‖ Id. This is a difficulty we

have long grappled with. For some time we have sought to address

it by imposing a set of procedural requirements on our trial judges.

¶38 Specifically, our cases have long spoken of a requirement of

―scrupulous examination‖ of evidence of prior misconduct under

rule 404(b). See State v. Decorso, 1999 UT 57, ¶ 18, 993 P.2d 837. We

have said that a judge ―must use ‗care and precision‘ in evaluating

‗the true—and predominant—purpose‘ for admission‖ of evidence

of prior misconduct. State v. Lucero, 2014 UT 15, ¶ 36, 328 P.3d 841

(quoting Verde, 2012 UT 60, ¶¶ 22, 55). And we have required a

district judge‘s analysis of these issues to be set forth on the record,

and (at least sometimes) as a product of briefing and oral argument

from the parties. See id. ¶ 37; State v. Widdison, 2001 UT 60, ¶ 44, 28

P.3d 1278.

¶39 Most recently, in Lucero, we characterized the ―scrupulous

examination‖ requirement as consisting of three steps—

encompassing analysis of the standards of admissibility under rules

404(b), 402, and 403. Lucero, 2014 UT 15, ¶ 37. In so doing, we

―acknowledge[d] that our case law giving effect to the ‗scrupulous

examination‘ requirement has, to date, been somewhat unclear.‖ Id.

To minimize confusion going forward, Lucero clarified that

―scrupulous examination‖ requires only that the judge analyze the

standards set forth in rules 404(b), 402, and 403 of the Utah Rules of

Evidence. We also repudiated the notion of a hard requirement of

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briefing and oral argument. We stated instead that it is enough that

―the trial court engages in th[e] three . . . step analysis on the record.‖

Id. And we emphasized that this requirement is ―essential for

effective appellate review of the issues.‖ Id.

¶40 The court of appeals‘ decision in this case was premised on

the above line of cases. In reversing the district court‘s decision to

admit evidence of Thornton‘s involvement in B.Z.‘s mother‘s drug

use and prostitution, the court of appeals found a lack of

scrupulousness. State v. Thornton, 2014 UT App 265, ¶ 38, 339 P.3d 112.

It concluded, in particular, that the trial judge had fallen short in

failing to analyze two sets of prior bad acts separately—Thornton‘s

involvement in drug use, on one hand, and prostitution, on the

other. Id. ¶ 40. And due to the lack of a separate analysis of the

admissibility of each category of evidence on the record, the court of

appeals concluded that it could not determine whether the district

judge would have deemed the drug evidence or prostitution

evidence admissible if it had analyzed them separately. Id. ¶ 42. And

it reversed on the ground that the district court‘s ―analysis failed to

clear the analytical bar‖ demanded by our cases. Id. ¶ 38.

¶41 We can see a basis for the court of appeals‘ decision in the

terms of our precedents in this area. And we concede that the quality

of appellate review would have been enhanced by a more fulsome

statement of the district judge‘s analysis on the record. But we

nonetheless reverse the court of appeals. We do so for a number of

reasons.

A. Preservation

¶42 First, Thornton preserved no objection to the method or

structure of the district court‘s analysis of the 404(b) question

presented. At no point in the district court proceedings did Thornton

ever suggest that the two strands of prior misconduct evidence

should be analyzed separately. Nor was this issue presented in the

briefing or argument to the court of appeals.

¶43 Thornton argued generally that the district judge‘s analysis

fell short of the ―scrupulous examination‖ required by our cases. But

he never challenged that examination on the specific basis seized on

by the court of appeals. That is significant. We find no room for

reversal of a trial judge under an abuse of discretion standard on a

ground that was not specifically presented to the district court. See

State v. King, 2006 UT 3, ¶ 23, 131 P.3d 202 (trial court does not abuse

its discretion when it does not sua sponte consider an issue that was

not raised before it).

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B. Repudiation of ―Scrupulous Examination‖ Standard

¶44 Second, we acknowledge a basis for the court of appeals‘

decision in the ―scrupulous examination‖ standard set forth in our

caselaw. But we conclude, on reflection, that that standard is more

confusing than helpful. And we accordingly repudiate it.

¶45 We have, as noted, long alluded to the need for ―scrupulous‖

analysis ―on the record.‖ And we have explained that that

requirement is necessary to facilitate effective appellate review of

trial court decisions under rule 404(b). The court of appeals could

understandably view our cases as opening the door to—or even

commanding—its insistence on careful, separate analysis of the two

strands of prior misconduct evidence proffered by the State at trial. It

is certainly true that such detailed analysis would have been more

scrupulous in some sense of that term.

¶46 Yet we find nothing in the rules of evidence that demands

such detailed analysis as a freestanding procedural requirement.

And we reiterate, as we have in other recent cases, that it is our rules

that state the primary law of evidence in the State of Utah.3 With that

in mind, we hold that there is no legal error in a district judge‘s

failure to engage in a separate analysis of distinct strands of prior

misconduct evidence presented under rule 404(b). And we reverse

the court of appeals‘ conclusion to the contrary.

¶47 In so holding, we take the point an important step further. On

reflection, we conclude that the notion of a requirement of

―scrupulous examination‖ under rule 404(b) is more confusing than

helpful. This rule nowhere requires explicit findings or analysis on

the face of the record. It simply prescribes standards for

admissibility of evidence. That is likewise the thrust of rules 402 and

403, which also govern in this area. These rules provide terms and

conditions of admissibility of evidence; they do not prescribe the

methods or procedure for the district court‘s analysis on the record.

¶48 Our cases have sometimes suggested otherwise. In requiring

―scrupulous examination‖ we have spoken to the procedure and

mechanisms for analysis of rule 404(b) issues. But that now strikes us

3 State v. Lucero, 2014 UT 15, ¶ 32, 328 P.3d 841 (explaining that

―courts are bound by the text of [our rules]‖); State v. Cuttler, 2015

UT 95, ¶ 19, 367 P.3d 981 (noting that ―it is not appropriate for a

district court to moor its . . . analysis entirely and exclusively‖ to

factors that were not part of the text of the rules).

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as a distortion of the rules of evidence—and of the proper process for

appellate review.

¶49 American courts have long followed the ―writ of error‖

approach to appellate review. See Robert J. Martineau, Considering

New Issues on Appeal: The General Rule and the Gorilla Rule, 40 VAND. L.

REV. 1023, 1026–27 (1987) (discussing the history of this approach).

Under this framework, the appellate court does not review the trial

record in a search for an idealized paradigm of justice. Id. at 1026

(noting that appellate courts do ―not . . . test whether the proper

party ha[s] won‖). We ask only whether the trial court committed a

reversible error in resolving a question presented for its

determination.4

¶50 The question presented to the district court in this case was

whether to admit evidence of prior misconduct under rule 404(b). To

decide whether there was error in admitting evidence of Thornton‘s

involvement in B.Z.‘s mother‘s drug use and prostitution, the court

of appeals should have decided whether that evidence should

properly have been excluded under the rules of evidence. In

reversing instead on the basis of the district court‘s failure to

perform a sufficiently scrupulous examination, the court of appeals

assessed only the form or process of the district court‘s analysis. That

is insufficient. In reviewing a decision to admit evidence, there can

be error only if the evidence should properly have been excluded.

¶51 This is the general rule in the law. For most decisions

reviewed on appeal, the error, if any, is in making an incorrect

decision on the operative question presented. A judge may make the

right decision for a mistaken reason (or no reason), for example, and

still be affirmed on appeal. As a general rule, in other words, our

appellate review is of operative decisions made by lower courts, not

of the quality of the analysis employed in the course of such

decisions.

¶52 There are exceptions to the rule. In a few isolated instances

our law requires explicit findings or some other formal mode of

analysis on the face of the record—and calls for reversal in the

4 See Peatross v. Bd. of Comm’rs of Salt Lake Cty., 555 P.2d 281, 284

(Utah 1976) (―[A]ppellate jurisdiction is the authority to review the

actions or judgments of an inferior tribunal upon the record made in

that tribunal, and to affirm, modify[,] or reverse such action or

judgment.‖).

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absence of such an approach.5 But this is the exception that proves

the rule. And our rules of evidence show no signs of departing from

the general rule. Again, they prescribe only standards for admission

or exclusion of evidence and do not generally speak to the form of

analysis to be performed on the record in support of a decision on

admissibility.

¶53 We acknowledge that our ―scrupulous examination‖ cases

have suggested otherwise. For reasons stated herein, however, we

hereby repudiate this formulation of the standard to be applied on

appellate review of evidentiary decisions made under rule 404(b).

Instead of looking for ―scrupulous examination,‖ our appellate

courts should simply assess whether the district judge made an error

in admitting or excluding the evidence in question. That is the question

presented under our rules of evidence. And appellate review for

error should conform to the standard set forth in our rules.

¶54 In so holding we do not at all undermine the advisability of a

trial judge‘s scrupulousness. See Townsend v. Holman Consulting Corp.,

929 F.2d 1358, 1366 (9th Cir. 1990) (noting that ―district courts

substantially aid the review process by giving thorough explanations

of their reasons‖). Nor do we suggest that the degree of a judge‘s

scrupulousness—as defined in our cases—is irrelevant to appellate

5 In a bench trial, for example, the court ―must find the facts

specially and state separately its conclusions of law,‖ and ―[t]he

findings and conclusions must be made part of the record.‖ UTAH R.

CIV. P. 52(a). And the failure to follow this procedural path is itself

error, as we have concluded that such failure is a ―fundamental

defect‖ that ―makes it impossible to review‖ the lower court‘s

decision. Acton v. Deliran, 737 P.2d 996, 998–99 (Utah 1987); accord

Arthur R. Miller, FEDERAL PRACTICE & PROCEDURE, 9C Fed. Prac. &

Proc. Civ. § 2577 (3d ed.) (noting that ―the court of appeals may

vacate the judgment and remand the case to the district court for

findings if the trial court has failed to make findings when they are

required by the rule‖). The requirement of findings extends to

criminal bench trials as well. See UTAH R. CRIM. P. 12(e) (―Where

factual issues are involved in determining a motion, the court shall

state its findings on the record.‖). But see State v. Helms, 2002 UT 12,

¶¶ 11–12, 40 P.3d 626 (noting that ―as a general rule ‗this court

upholds the trial court even if it failed to make findings on the

record whenever it would be reasonable to assume that the court

actually made such findings.‘‖ (citations omitted)).

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STATE v. THORNTON

Opinion of the Court

review. The careful trial judge will still proceed as outlined in our

recent Lucero decision—marching through the standards set forth in

rules 404(b), 402, and 403, and presenting his analysis on the record.

And the judge who does so will be better-positioned to have his

decision on admissibility of prior misconduct evidence affirmed on

appeal.6

¶55 But the bottom line is that ―scrupulous examination‖ is not an

independent requirement of rule 404(b). So we repudiate our

caselaw to the extent it has so suggested. And we reverse the court of

appeals‘ decision because it was based on that premise.7

C. Analysis of Admissibility Under Rules 404(b), 402, and 403

¶56 That conclusion requires us to answer the question the court

of appeals stopped short of addressing—whether the prior

6 The existence of careful findings, after all, will increase the

likelihood of deference on appeal. See Benson v. N. Gopher Enters.,

Inc., 455 N.W.2d 444, 446 (Minn. 1990) (concluding that the

―thoroughness of the trial court‘s exploration of [an] issue‖ justified

deference even though the appellate court ―may have reached a

different conclusion‖).

7 Our holding here is not inconsistent with our decision in State v.

Verde, 2012 UT 60, 296 P.3d 673. There we reversed a jury verdict that

was premised on the admission of evidence presented under rule

404(b). Our reversal was on the ground that the bases for admission

proffered by the prosecution at trial did not hold up on appeal. Id.

¶ 24. And we declined to consider an alternative ground for

admission proffered for the first time on appeal—not preserved at

trial and thus not ruled upon by the district court. See id. ¶ 20

(refusing to consider the ―doctrine of chances‖ as a basis for

admission of 404(b) evidence where this doctrine was not advanced

as a basis for admission at trial). Our Verde decision was based on the

law of preservation. See id. ¶ 20 (declining to affirm on the basis of

the doctrine of chances ―in the absence of any indication in the

record that the district court was asked to conduct the careful

weighing required to sustain the admission of such evidence in a

case like this one,‖ and ―leav[ing] it to the district court on remand‖

to decide whether the doctrine could sustain the admissibility of the

evidence in that case). And the law of preservation stands despite

our repudiation of the procedural requirement of ―scrupulous

examination.‖

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misconduct evidence at issue was properly admitted at trial. We

conclude that it was. As a threshold matter, we reiterate the

deferential standard of review that applies to review of this kind of

question. The trial judge is in a better position than we are to assess

the avowed basis for evidence of prior misconduct—and to judge its

likely effect in prejudicing or confusing the jury. So the question for

us is not whether we would have admitted this evidence. It is

whether the district judge abused his broad discretion in doing so.

¶57 And we conclude that the district court was well within its

discretion in admitting this evidence. First, we find ample grounds

for the judge‘s determination that the evidence was presented for a

purpose other than to suggest that the defendant likely acted ―in

conformity with‖ bad character. UTAH R. EVID. 404(b)(1) (identifying

this as a prohibited use). The evidence of Thornton‘s involvement in

B.Z.‘s mother‘s drug use and prostitution presented a narrative of

relevance to the prosecution‘s case—to demonstrating Thornton‘s

position of power in the home, to explaining why he had such easy

access to B.Z., and to suggesting why B.Z. may have waited to come

forward with accusations against Thornton. This was the avowed

purpose of the prior misconduct evidence in this case. And the

district court acted within its discretion in crediting this proper

purpose. See Verde, 2012 UT 60, ¶ 15 (noting that ―the admissibility of

prior misconduct evidence depends on its avowed purpose‖); id.

¶ 19 (indicating that a trial judge‘s ―decision to admit evidence

under rule 404(b) is entitled to some deference‖).

¶58 Granted, the prior misconduct evidence in this case could also

sustain an improper inference. We cannot foreclose the possibility

that the jury may have viewed Thornton‘s encouragement of

prostitution, for example, as an indication that he may be the type of

person who might be likely to engage in deviant sexual conduct. But

that possibility is not enough to dictate the exclusion of this evidence

under rule 404(b). The threshold 404(b) question is whether the

evidence has a plausible, avowed purpose beyond the propensity

purpose that the rule deems improper. If it does then the evidence is

presumptively admissible (subject to rule 402 and 403 analysis).

¶59 We have suggested that an avowed proper purpose may be

rejected as a pretext or ―ruse.‖ Verde, 2012 UT 60, ¶ 22. That would

be appropriate, for example, where the proper purpose put forward

by the prosecution is addressed to an issue that is not actually

disputed, and where the court concludes that the only real effect of

the evidence is to suggest likely action in conformity with bad

character. See id. Short of that, however, the court‘s job under rule

404(b) is not to balance or weigh competing (proper and improper)

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Opinion of the Court

inferences.8 Such weighing comes in under rule 403. See id. ¶ 17

(stating that ―if 404(b) evidence appears to have a dual purpose—to

be aimed at both proper and improper inferences—it may

nonetheless be excluded under rule 403‖).

¶60 In all events, the district court did not view the State‘s avowed

―narrative‖ purpose of the 404(b) evidence in this case as a pretext or

ruse. It deemed the State‘s non-propensity-based purposes to be

legitimate. And we agree.

¶61 That takes us to the questions of relevance and balancing

under rules 402 and 403. Relevance is a low bar. ―Evidence is

relevant if . . . it has any tendency to make a fact more or less

probable than it would be without the evidence.‖ UTAH R. EVID.

401(a) (emphasis added). And the trial judge was well within her

discretion in deciding that the prior misconduct evidence in this case

was relevant—that it would help the jury understand Thornton‘s

position of power in the home, why he had such easy access to B.Z.,

and why B.Z. may have waited to come forward with accusations

against him. These were important issues in the case given

Thornton‘s defense—that B.Z. fabricated her accusations against

him. So the narrative advanced by the prosecution—which included

Thornton‘s prior misconduct—was certainly relevant.

¶62 Under rule 403 ―[t]he court may exclude relevant evidence if

its probative value is substantially outweighed by a danger of one or

more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.‖ UTAH R. EVID. 403. The trial judge

concluded that the probative value of the 404(b) evidence in this case

was not substantially outweighed by any of the listed considerations.

And we find no abuse of discretion in that determination.

¶63 The risk of prejudice was somewhat mitigated by the fact that

Thornton‘s prior acts were distinct from the crime he was charged

with. There was no claim that he made any sexual advances toward

B.Z.‘s mother, only that he encouraged her to become involved in

prostitution to have money to pay for the drugs he was providing to

her. And the evidence, again, was a matter of substantial relevance

to the prosecution (in rebutting Thornton‘s charge that B.Z.

8 The district court may also issue a limiting instruction—

reminding the jury of the need to avoid the improper, propensity-

based inference, and to consider only the proper purpose.

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fabricated her testimony). For these reasons the trial judge acted well

within her discretion in deciding that the probative value of this

evidence was not ―substantially outweighed‖ by the risk of ―unfair

prejudice.‖

¶64 We reverse the court of appeals (and uphold the decision of

the district court) on these grounds. In so concluding, we note that

we find no error in the district judge‘s failure to consider the

prostitution and drug evidence separately. Thornton never asked for

the evidence to be considered separately. And it ultimately was of a

piece: It told a broader narrative of relevance to the prosecution‘s

rebuttal of Thornton‘s principal defense (fabrication). For those

reasons we think the trial judge acted reasonably in considering and

weighing both strands of 404(b) evidence together. We reverse the

court of appeals‘ decision to the contrary.

III. EVIDENCE OF B.Z.‘S SEXUAL EXPERIENCE UNDER RULE 412

¶65 Utah Rule of Evidence 412 generally proscribes the admission

of evidence of the ―other sexual behavior‖ of a victim ―in a criminal

proceeding involving alleged sexual misconduct.‖ UTAH R. EVID.

412(a). It also sets forth a series of exceptions to the general rule.

Under part (b)(1) of the rule, ―evidence of specific instances of a

victim‘s sexual behavior‖ is admissible ―if offered to prove that

someone other than the defendant was the source of semen, injury,

or other physical evidence.‖ UTAH R. EVID. 412(b)(1). Alternatively,

part (b)(3) states that ―evidence whose exclusion would violate the

defendant‘s constitutional rights‖ is also admissible. UTAH R. EVID.

412(b)(3).

¶66 These two exceptions are implicated here. Thornton claims

that evidence of B.Z.‘s sexual relationship with a fourteen-year-old

friend should have come in under either or both of the cited

exceptions. And he challenges the court of appeals‘ decision

affirming the district judge‘s rejection of his arguments on these

points. We affirm.

A. Rule 412(b)(1)

¶67 Thornton claims that evidence of B.Z.‘s sexual experience was

―offered to prove that someone other than the defendant was the

source of semen, injury, or other physical evidence.‖ UTAH R. EVID.

412(b)(1). He says that B.Z‘s sexual relationship with a fourteen-year-

old friend was ―physical evidence‖ of relevance to B.Z.‘s belief that

she was pregnant or to her familiarity with sex acts. And he

contends that evidence of this relationship should thus have been

admitted under the exception in rule 412(b)(1).

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Opinion of the Court

¶68 We disagree. Rule 412(b)(1) comes into play in a case

involving a specific forensic question—whether ―the defendant was

the source of semen, injury, or other physical evidence.‖ Id. No such

forensic question was presented here. No one ever identified any

tangible, physical evidence that could directly tie B.Z.‘s assailant to

her rape. And the absence of such ―physical evidence‖ renders the

rule 412(b)(1) exception inapplicable.

¶69 Thornton suggests that B.Z.‘s fourteen-year-old friend might

be the ―source of semen‖ that caused her to believe that she was

pregnant. But that was never an issue at trial. B.Z. apparently was

not pregnant. And the question presented at trial was not who may

have caused her to believe that she was. It was whether Thornton

perpetrated the sexual assaults charged by B.Z. The sexual

relationship between B.Z. and the fourteen-year-old boy had no

relevance to that question.

¶70 There was never any question, moreover, as to whether

Thornton was the source of any semen, injury, or other physical

evidence. So the relationship between B.Z. and the fourteen-year-old

boy was not ―physical evidence‖ covered by rule 412(b)(1).

¶71 We affirm the court of appeals on that basis. We agree with its

conclusion that the 412(b)(1) exception applies only to ―physical

evidence,‖ and that it ―stretches the language‖ of the exception too

far to apply it here. State v. Thornton, 2014 UT App 265, ¶ 21, 339 P.3d

112.

B. Rule 412(b)(3) and the Sixth Amendment

¶72 That leaves only Thornton‘s argument that exclusion of

evidence of B.Z.‘s relationship with her fourteen-year-old friend

violated his ―constitutional rights‖ in a manner implicating the

exception in rule 412(b)(3). The principal constitutional rights he

cites are those protected by the Sixth Amendment to the United

States Constitution.

¶73 Thornton says he needed to present evidence of B.Z.‘s

relationship with the fourteen-year-old boy in order to undermine

B.Z.‘s testimony—specifically, her testimony describing the physical

sensation of sexual penetration and intercourse. Evidence of that

relationship, in Thornton‘s view, would have allowed him to

undercut the prosecution‘s presentation of B.Z. as a sexual innocent

who would not have known how to describe the physical sensations

that she described unless she had been raped. Because he was

precluded from presenting that evidence, moreover, Thornton claims

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that he was deprived of a fair trial as guaranteed by the Sixth

Amendment.

¶74 The Sixth Amendment guarantees a defendant a right to a

―speedy and public trial‖ by jury, ―to be confronted with the

witnesses against him,‖ ―to have compulsory process for obtaining

witnesses in his favor,‖ and ―to have the Assistance of Counsel for

his defence.‖ U.S. CONST. amend. VI. These provisions have been

interpreted to encompass some form of ―right to present [a]

defense.‖ See Rock v. Arkansas, 483 U.S. 44, 48, 56 (1987). Thus, where

rules of evidence or procedure foreclose any meaningful avenue for

presenting a defendant‘s fundamental defense to charges against

him, the U.S. Supreme Court has found a Sixth Amendment

violation. And it has deemed the Sixth Amendment to override rules

of evidence or procedure.

¶75 In Rock, for example, the court struck down an Arkansas rule

that excluded all hypnotically refreshed testimony from admission at

trial. It did so on the ground that the Arkansas rule deprived the jury

of the only witness who was at the scene and had firsthand

knowledge of the facts of the case. See id. at 57. The court also

emphasized that the Arkansas rule infringed the defendant‘s interest

in testifying in her own defense. See id. at 52. Thus, the Rock court

held that the defendant had a right to be allowed ―to present his own

version of events in his own words,‖ and it struck down the

Arkansas prohibition on hypnotically refreshed testimony on the

ground that it infringed the defendant‘s right to present a defense.

Id. Earlier cases are along similar lines.9

¶76 Yet the high court has emphasized the limited nature of the

right recognized in this line of cases. In United States v. Scheffer, 523

9 See Washington v. Texas, 388 U.S. 14, 23 (1967) (striking down, on

Sixth Amendment grounds, Texas statutes preventing codefendants

or coparticipants in a crime from testifying for one another,

precluding the defendant from introducing his accomplice‘s

testimony that the accomplice had committed the crime; holding that

―the State arbitrarily denied [the defendant] the right to put on the

stand a witness who was physically and mentally capable of

testifying to events that he had personally observed‖); Chambers v.

Mississippi, 410 U.S. 284 (1973) (holding that Mississippi law

preventing party from impeaching own witness and excluding

testimony of three persons to whom witness had confessed violated

defendant‘s constitutional rights).

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Opinion of the Court

U.S. 303 (1998), the court explained that the Sixth Amendment right

to present a defense is far from absolute. The Scheffer court held that

this right must be understood to accommodate the ―broad latitude‖

given to ―rulemakers‖ tasked with ―establish[ing] rules excluding

evidence from criminal trials.‖ Id. at 308; see also Rock, 483 U.S. at 55

(explaining that the defendant‘s interest in presenting evidence may

―bow to accommodate other legitimate interests in the criminal trial

process‖). In recognition of this prerogative, Scheffer held that the

―defendant‘s right to present relevant evidence is . . . subject to

reasonable restrictions.‖ 523 U.S. at 308. Specifically, Scheffer

established that evidentiary ―rules do not abridge an accused‘s right

to present a defense so long as they are not ‗arbitrary‘ or

‗disproportionate to the purposes they are designed to serve.‘‖ Id.

(quoting Rock, 483 U.S. at 56). And it explained that ―exclusion of

evidence [is] unconstitutionally arbitrary or disproportionate only

where it has infringed upon a weighty interest of the accused.‖ Id.

¶77 This is a high bar. It is met only if the defense can show that

the operative rule of evidence ―significantly undermined

fundamental elements of the defendant‘s defense.‖ Id. at 315. Thus, it

is not enough to show that ―a state or federal rule excludes favorable

evidence.‖ Id. at 316. The defense must demonstrate a ―weighty

interest‖ that is ―significantly undermined‖ by the rule of evidence;

and the rule must be shown to be ―arbitrary‖ or ―disproportionate to

the purposes‖ it is designed to serve. Id. at 308, 315.

¶78 These standards are not completely theorized or explained in

Scheffer or Rock. But they require, at a minimum, proof that the

evidence in question is essential to the presentation of a defense. See

id. at 315 (requiring proof that exclusion ―significantly undermined

fundamental elements of the defendant‘s defense‖). Scheffer suggests

that it is only in such circumstances that the state‘s interest in

enforcing its rules of evidence is ―disproportionate‖ to the ―weighty

interest of the accused.‖ Id. at 308.

¶79 Thornton cannot make such a showing. He failed to lay the

foundation necessary to do so in the trial proceedings below. And

the absence of such foundation renders him incapable of establishing

on appeal that the evidence of B.Z.‘s sexual relationship with a

fourteen-year-old was fundamental or essential to his defense.

¶80 The district court based its decision to exclude the evidence of

B.Z.‘s sexual experience on the determination that Thornton had

―several other means by which he can establish that B.Z. had sexual

knowledge well beyond that of a traditional twelve-year-old.‖ Ruling

and Order at 6 (Sept. 14 2011). Thus, because it found that ―defendant

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can make the same allegations with different evidence,‖ the district

court ruled that ―he is not denied his Sixth Amendment rights.‖ Id.

¶81 Thornton challenges that ruling on appeal. He claims that the

other evidence available to him—principally the evidence of B.Z.‘s

experience with the sexual activity and prostitution taking place in

her household—was insufficient to allow him to establish B.Z.‘s

familiarity with the physical sensations of sexual activity. But he

failed to lay the foundation necessary to support that argument in

the district court. Thornton never sought an in camera examination to

compare the knowledge B.Z. had from what she learned from the

sexual activity in her household with the understanding she

acquired from her relationship with the fourteen-year-old. Nor did

he pursue any such line of questioning in his examination of B.Z. at

trial—to ask, for example, whether she had heard her mother

describe sex in the kind of detail that she used to describe what it felt

like to be raped.10

¶82 That is fatal to Thornton‘s position on appeal. Without a

foundation in the record for comparison of the rule 412 evidence

with the alternative evidence cited by the district court, Thornton has

no basis for challenging the district court‘s determination that he had

―other means‖ to establish B.Z.‘s ―sexual knowledge.‖ And for that

reason he likewise has no basis for establishing that evidence of

B.Z.‘s sexual experience was essential to his defense.

¶83 We affirm the court of appeals‘ decision on the rule 412(b)(3)

exception on this basis.

IV. CONCLUSION

¶84 We affirm the court of appeals‘ decision on the rule 412 issue

but reverse its decision to reverse Thornton‘s conviction on the rule

404(b) issue. Thus, absent any basis for questioning the guilty

10 For these reasons we are in no position to opine on the question

whether Thornton ―met the threshold for creating a Sixth

Amendment Claim,‖ or in other words whether ―the trial court erred

in its conclusion that the other evidence of sources for the victim‘s

sexual knowledge were adequate to meet that claim.‖ Infra ¶ 2

(Durham, J., concurring). Because Thornton ―leaves us only with his

speculation‖ about what information the victim could have gleaned

from either source of information, infra ¶ 3, we have no basis for

evaluating the correctness of the district court‘s assessment of the

relative value of the two available sources of evidence.

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Opinion of the Court

verdict, we reinstate the judgment of conviction on each of the

several counts against Mr. Thornton.

JUSTICE DURHAM, concurring separately:

¶85 I concur in the result, and in all parts of the majority opinion

except the analysis under rule 412 of the Utah Rules of Evidence

contained in Part III.B. I do not disagree with the opinion‘s

explanation of the content and standards for review of evidentiary

concerns implicating the Sixth Amendment. I do disagree with the

trial court‘s and the majority‘s assessment of the evidence in this

case. The trial court, as the majority notes, concluded that the

defendant could ―make the same allegations [that the victim‘s

testimony about sexual details was the result of her relationship with

a boyfriend and not the defendant‘s attacks] with different

evidence.‖ Supra ¶ 80.

¶86 The ―different evidence‖ in question, according to the

majority, is ―principally the evidence of [the victim‘s] experience

with the sexual activity and prostitution taking place in her

household.‖ Supra ¶ 81. But the type of testimony at issue here bears

no logical nexus to second-hand exposure to sexual activity or

prostitution. It contained explicit, personal descriptions of physical

sensations, pain, and cloudy substance in her urine. There is no

likelihood, in my view, that any of that testimony came from

observations of, or conversations about, the consensual adult sexual

activities going on in the household. It is also unfortunate that the

prosecutor referred to the victim on several occasions in connection

with this issue as a ―child,‖ in an apparent effort to emphasize her

sexual inexperience. Thus, I think the defense met the threshold for

creating a Sixth Amendment claim, and that the court of appeals

erred in affirming the trial court‘s conclusion that the other evidence

of sources for the victim‘s sexual knowledge were adequate to meet

that claim.

¶87 That being said, however, I agree with the majority opinion

that the defense entirely failed to show ―that the operative rule of

evidence ‗significantly undermined fundamental elements of the

defendant‘s defense.‘‖ Supra ¶ 77 (citation omitted). In failing to ask

for an in camera proceeding and in failing to create a record

permitting comparison of the rule 412 evidence and the other

evidence anticipated at trial, the defendant leaves us only with his

speculation that the victim‘s sexual experiences with another child

would shed any light on the content and veracity of her testimony.

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We have only unconfirmed assertions about the nature of that

experience, and it was up to the defendant to rectify that situation.

Thus I conclude that in light of the trial court‘s concerns about the

harm to the victim in the admission of the testimony, it was not a

violation of defendant‘s rights and was within the court‘s discretion

to exclude it.

23