State v. Green

2023 UT 10

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Appellee,

v.

TORREY JORDAN GREEN,

Appellant.

No. 20190336

Heard: October 5, 2022

Filed Jun 1, 2023

On Direct Appeal

First District, Brigham City

The Honorable Brian G. Cannell

No. 181100491

Attorneys:

Sean D. Reyes, Att’y Gen., Nathan Jack, David A. Simpson, Asst.

Solics. Gen., Salt Lake City, Barbara K. Lachmar, Cache County,

for appellee

Emily Adams, Freyja Johnson, Cherise Bacalski, Bountiful,

for appellant

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

ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE PETERSEN,

JUSTICE HAGEN, and JUSTICE POHLMAN joined.

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶1 Torrey Green was charged with sexually assaulting seven

women. On his lawyer’s motion, six of the seven cases were

consolidated for trial. 1 A jury convicted Mr. Green of charges for

each of these six victims.

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1 The case that was not consolidated is not at issue in this appeal.

STATE v. GREEN

Opinion of the Court

¶2 Mr. Green seeks a reversal of his convictions, arguing that he

did not receive a fair trial. He advances four main arguments on

appeal. First, he argues that under the Utah Rules of Evidence—

specifically, rules 404(b) and 403—and the doctrine of chances, the

district court erred in allowing the State to use evidence of conduct

unrelated to a particular victim’s case (other-acts evidence) to show

that he sexually assaulted that victim. Relatedly, both he and the

State ask us to overturn our doctrine-of-chances precedent. Second,

Mr. Green asserts that the district court admitted hearsay statements

that are prohibited by the Utah Rules of Evidence. Third, he offers

several ways in which he claims his counsel rendered ineffective

assistance at trial. Finally, he maintains that the cumulative error

doctrine requires us to reverse his convictions.

¶3 Upon review of the parties’ arguments concerning the

doctrine of chances, we are persuaded that the doctrine should be

abandoned in favor of a plain-text reading of rules 402, 403, and

404(b). Because of this change in course, we analyze whether the

district court erred in admitting the other-acts evidence in Mr.

Green’s case under the rules of evidence (without any reference to

the doctrine of chances). Under this standard, we find no error in the

district court’s other-acts evidence determination.

¶4 As to Mr. Green’s hearsay claims, we conclude that most of

the statements at issue were properly admitted consistent with

exemptions to the hearsay rule. And because the evidence against

Mr. Green was overwhelming, we conclude that the district court’s

errors in admitting those few statements that should have been

excluded as hearsay were harmless.

¶5 We further conclude that Mr. Green’s ineffective assistance of

counsel arguments fail. None of these arguments satisfies the

standard articulated for such cases by the United States Supreme

Court and our caselaw.

¶6 Finally, based on our analysis of Mr. Green’s other challenges,

his cumulative error argument also fails. We accordingly affirm each

of Mr. Green’s convictions.

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Background 2

¶7 The State charged Mr. Green with the sexual assault and rape

of M.H., L.P., C.H., C.D., A.P., and V.S. Each of these six women

identified Mr. Green as her assailant, and the State filed charges

against him for each alleged crime.

¶8 Based on the similarities among the six accounts, the State

relied on rule 404(b) of the Utah Rules of Evidence and the doctrine

of chances to introduce the testimony of all six women with respect

to each of the charges, seeking to demonstrate that the six women

were not fabricating their claims, as alleged by Mr. Green. The

testimony was admitted for each of the six victims. Upon admission

of this evidence, Mr. Green’s attorney moved to consolidate the six

cases, and the motion was granted.

¶9 During the trial, defense counsel stipulated to a summary of

three Salt Lake Tribune articles (Tribune Articles) that described the

alleged sexual assaults of several of the women. The written

summary and stipulation were admitted into evidence as an exhibit

(Tribune Stipulation), which the jury was permitted to possess

during its deliberations.

¶10 After a ten-day trial, Mr. Green was convicted of raping

M.H., C.H., C.D., V.S., and A.P. He was also convicted of the object

rape and forcible sexual abuse of V.S. and of the sexual battery of

L.P. The jury acquitted Mr. Green of four charges: the kidnapping of

L.P., the forcible sexual abuse of L.P., the object rape of C.H., and the

forcible sexual abuse of C.H.

¶11 Mr. Green filed a timely appeal, challenging the district

court’s decision to admit the other-acts testimony under the Utah

Rules of Evidence and the doctrine of chances. He also challenges the

district court’s admission of hearsay evidence and its decision to

allow certain documentary exhibits (including the Tribune

Stipulation) to accompany the jury into its deliberations. Mr. Green

further argues that his counsel was ineffective in moving to

consolidate the six cases, agreeing to the Tribune Stipulation and

permitting it and other exhibits to accompany the jury in its

deliberations, not objecting to the State’s admission of hearsay

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2 State v. Heaps, 2000 UT 5, ¶ 2, 999 P.2d 565 (“When reviewing a

jury verdict, we examine the evidence and all reasonable inferences

in a light most favorable to the verdict, reciting the facts

accordingly.”).

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Opinion of the Court

evidence, and failing to object to the “improper racial theme”

allegedly created by the State at trial. Mr. Green also argues that,

when viewed cumulatively, the district court’s errors require us to

reverse his convictions.

¶12 Because analyzing these issues requires a basic

understanding of the underlying case, we begin by outlining Mr.

Green’s history at Utah State University (USU) and the publication

of the Tribune Articles. Next, we analyze the testimony of the six

victims as well as the associated hearsay testimony provided by their

colleagues to rebut a claim of recent fabrication. Then, we discuss the

alleged racial theme created at trial. And finally, we describe the

procedural history of the case.

A. Mr. Green’s Football Career and the Publication of the Tribune Articles

¶13 Mr. Green began studying at USU in 2011. He chose to attend

USU because the university recruited him to play football, which he

did collegiately from 2011 to 2016. On March 5, 2016, Mr. Green left

USU to begin training camp with the National Football League and

was subsequently drafted by the Atlanta Falcons.

¶14 Soon thereafter, on July 21, 2016, the Salt Lake Tribune printed

an article reporting that an unnamed male who attended USU had

been accused of committing several sexual assaults. The article

discussed V.S.’s and A.P.’s allegations and included details of their

alleged rapes. On August 4, 2016, the Salt Lake Tribune published a

second article, this time identifying Mr. Green as the unnamed male.

After the second article was published, the Atlanta Falcons cut Mr.

Green from the team. On October 9, 2016, the Salt Lake Tribune

printed a third article, which repeated the allegations of V.S. and

A.P. and reported further allegations by M.H. and L.P. Not long after

the publication of the third Tribune Article, the State brought

charges against Mr. Green.

B. The Rape of M.H.

¶15 At Mr. Green’s trial, M.H. testified that in November 2013,

Mr. Green raped her. She met Mr. Green on Tinder, a dating app,

and he invited her to his apartment for dinner. After dinner, Mr.

Green offered to give her a massage, to which she agreed. During the

massage, he tried to take her clothes off, but she resisted, telling him

to stop. Eventually, Mr. Green forced her clothes off, stating,

“[Y]ou’ll like it. It’s going to be fun.” Mr. Green then proceeded to

rape her. After it was over, M.H. drove herself home.

¶16 To support M.H.’s allegations, the State called four other

witnesses—M.H.’s on-again-off-again boyfriend, A.W., A.W.’s

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cousin (A.W.’s Cousin), and two of M.H.’s friends, A.H. and N.M.

All four individuals testified concerning what they had heard about

the rape. In support of its case, the State also submitted into evidence

a poem that M.H. wrote about the rape shortly after it occurred.

¶17 A.W. stated that M.H. came to his house in November or

December 2013 to talk. He testified that she told him “she had been

with [Mr. Green], and that they had sex, but she didn’t want to, that

he had forced it on her and . . . that she said no.” Defense counsel did

not object to A.W.’s testimony.

¶18 A.W.’s Cousin subsequently testified that in November or

December 2013, A.W. told him that he had heard that M.H. “had

been raped by a USU athlete.” Defense counsel did not object to

A.W.’s Cousin’s testimony. Finally, both A.H. and N.M. testified that

in the summer of 2016, M.H. told both of them that Mr. Green had

raped her. Defense counsel also did not object to A.H.’s or N.M.’s

testimony.

¶19 The State submitted a poem that M.H. wrote “right after” the

rape, which she posted on social media approximately ten days later.

The poem used explicit language describing what occurred and its

effect on M.H. Defense counsel objected to the poem’s admission.

The court overruled the objection and allowed the poem into

evidence under the present sense impression exception in rule 803

and the residual exception in rule 807 of the Utah Rules of Evidence.

C. The Sexual Battery of L.P.

¶20 L.P. testified that in October 2014, Mr. Green sexually

assaulted her with her clothes on. She explained that she met Mr.

Green on Tinder, and he invited her to his apartment to watch a

movie. Mr. Green tried to hold her hand, cuddle with her, and kiss

her, but she rebuffed his advances, telling him that she did not want

to do those things. After Mr. Green continued to make advances, she

attempted to leave, but he cornered her, made comments about her

body, and then grabbed her and simulated sex by rubbing his body

against hers. She continued to resist, and eventually Mr. Green

stopped and took her home.

¶21 To support L.P.’s allegations, the State called four

witnesses—L.P.’s three roommates at the time of the incident, K.E.,

M.J., and S.S., and L.P.’s mother, K.P. All four witnesses testified

regarding what L.P. told them about the assault.

¶22 K.E. testified that in October 2014, L.P. told her that Mr.

Green had “tried to kiss her and held her down” and “that she didn’t

want it.” Defense counsel objected to this testimony, but the court

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Opinion of the Court

overruled the objection under the excited utterance exception of rule

803 of the Utah Rules of Evidence. M.J. testified that in October 2014,

L.P. told her that Mr. Green had “tried to push her up against the

bed.” And S.S. testified that in October 2014, L.P. told her that Mr.

Green had “tried to rape her.” Defense counsel did not object to

either M.J.’s or S.S.’s testimony.

¶23 K.P. testified that in October 2014, L.P. called her and told

her that she had been on a date with Mr. Green and that during the

date, she was “basically raped with [her] clothes on.” Defense

counsel objected to K.P.’s testimony on hearsay grounds, but the

court overruled the objection and permitted the testimony under the

excited utterance hearsay exception of rule 803.

D. The Rape of C.H.

¶24 C.H. testified that in the fall of 2015, she was raped by Mr.

Green. She explained that she met Mr. Green on Tinder, and he

invited her over to his apartment to watch a movie. During the

movie, they started kissing, and Mr. Green tried to put his hands

under—and then take off—her clothes. She told him to stop and

pushed his hands away, but Mr. Green ignored her, saying things

like, “You know you’ll like this.” He then forced her clothes off and

proceeded to rape her. She continued to resist and eventually

succeeded in pushing Mr. Green off of her. She then got dressed and

drove herself home.

¶25 To support C.H.’s allegations, the State called her sorority

sister, A.N., to testify. A.N. testified that in October 2015, C.H. told

her that a USU football player had raped her—though at the time,

C.H. did not disclose the football player’s name. A.N. also testified

that sometime in 2016, after the second Tribune Article, which

identified Mr. Green, was published, C.H. disclosed to her that Mr.

Green was the one who had raped her. Defense counsel did not

object to A.N.’s testimony.

E. The Rape of C.D.

¶26 C.D. testified that in October 2014, she was raped by Mr.

Green. She explained that after she met Mr. Green at the USU

student center, they began texting, and Mr. Green invited her over to

his apartment to eat dinner and watch a movie. Because she did not

have a car, Mr. Green picked her up and brought her to his

apartment. While they were watching the movie, they began kissing.

Mr. Green then started to touch her body, even though she

repeatedly requested that he stop. Despite her resistance, Mr. Green

held her down and then proceeded to rape her, saying, “I know you

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want it.” After it was over, C.D. had Mr. Green drive her to the on-

campus dormitory building where her friend lived.

¶27 To support C.D.’s allegations, the State called two witnesses,

C.D.’s friend (C.D.’s Friend) and C.D.’s mother, A.D. Both testified

regarding what C.D. had told them about the rape. The court also

admitted into evidence an essay that C.D. wrote about the

experience.

¶28 C.D.’s Friend testified that in the fall of 2014, C.D. came to his

house late one night to talk to him. He claimed that she had

communicated to him that someone had “pinned her down” and

“forced [him]self on her.” Defense counsel did not object to C.D.’s

Friend’s testimony. C.D.’s mother, A.D., testified that in the fall of

2015, C.D. told her that she had been raped while at USU in 2014.

She also testified that in 2016, after the Salt Lake Tribune published an

article identifying Mr. Green as an alleged rapist, C.D. named Mr.

Green as the individual who had raped her. Defense counsel did not

object to A.D.’s testimony.

¶29 The court also admitted into evidence an essay that C.D.

wrote in October 2014. In this essay, C.D. described her experience as

a rape victim and detailed what had occurred on the night the rape

took place. Defense counsel did not object to the admission of the

essay.

F. The Rape of A.P.

¶30 A.P. testified that in June 2015, she was raped by Mr. Green.

She explained that she met Mr. Green on Tinder, and he invited her

to his apartment. She refused his invitation, so Mr. Green said he

would come to her apartment instead. Initially, she told him that she

did not want him to come over, but when he showed up, she

decided to let him in for a few minutes. After talking for a while, she

asked Mr. Green to leave so she could go to bed. Mr. Green then

kissed her. Thinking Mr. Green was saying good night, she kissed

him back for a moment but made it clear that it was time for him to

leave. Mr. Green ignored her and, despite her opposition, followed

her into her bedroom, complimenting her body. Mr. Green then held

her down, pulled off her clothes, and began raping her, saying that

she “would like it.” After it was over, Mr. Green fell asleep, and she

locked herself in the bathroom until the next morning, when Mr.

Green left.

¶31 To support A.P.’s allegations, the State called two

witnesses—her boyfriend, B.H., and a USU official, J.E., to testify

regarding what A.P. had told them.

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Opinion of the Court

¶32 B.H. testified that A.P. came to him in July 2015 and told him

she had been raped. He also testified that soon thereafter, A.P.

identified Mr. Green as her assailant. Defense counsel objected to

B.H.’s testimony on hearsay grounds, but the court overruled the

objection, stating that the testimony “relates to timeline as well as

setting the stage for context with respect to the alleged impact and

condition of the alleged victim following the disclosure.”

¶33 J.E., an officer in USU’s Sexual Assault and Anti-Violence

Office, testified that on November 6, 2015, A.P. told her that Mr.

Green had raped her. The State offered this testimony “for the

purpose of showing the effect on the listener” because J.E. provided

services for A.P. as a result of their conversation. Defense counsel

did not object to the testimony “for that limited purpose.”

G. The Rape of V.S.

¶34 V.S. testified that in January 2015, Mr. Green raped her. She

explained that she met Mr. Green at the USU student center and a

few days later, he invited her to his apartment. She told Mr. Green

that she didn’t want to go to his apartment, but he drove to her

apartment to pick her up anyway. Because Mr. Green had a friend

with him, V.S. decided that she would go with them to Mr. Green’s

apartment. Shortly after they arrived at Mr. Green’s apartment, the

friend left. Mr. Green then started kissing V.S. and tried to take her

clothes off. She told him not to, but he ignored her and carried her

into his bedroom. Mr. Green then forced her clothing off and

proceeded to rape her, saying, “Tell me how you like it.” Mr. Green

then asked for a massage and fell asleep. V.S. then called a friend to

pick her up.

¶35 To support V.S.’s allegations, the State called three

witnesses—her roommate, K.A., her resident advisor, R.B., and her

ecclesiastical leader, R.M. All three witnesses testified regarding

what V.S. told them about the rape.

¶36 K.A. testified that around 10:00 or 11:00 p.m. on the night of

the rape in January 2015, V.S. woke her up and told her that Mr.

Green had raped her. Defense counsel did not object to K.A.’s

testimony. R.B. then testified that V.S. woke her late one night in

January 2015 and told her that “she had been raped while she was

hanging out with [Mr. Green].” Defense counsel did not object to

R.B.’s testimony. R.M. then testified that one evening in January

2015, he met with V.S., and she told him that “she had been grabbed

and physically constrained and then been raped.” Defense counsel

objected to R.M.’s testimony, but the district court overruled the

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objection and allowed the testimony to “show the effect on the

listener” because R.M. subsequently counseled and comforted V.S.

H. The Alleged Improper Racial Theme

¶37 Mr. Green points to three instances of what he asserts to be

improper references to race at trial. First, M.H. testified that “[Mr.

Green] said he really likes black girls because they are really sassy,

and if you try to have sex with them, you can’t.” M.H. testified that

Mr. Green made this statement shortly after raping her. Second, A.P.

testified that as a result of Mr. Green raping her, she developed

symptoms of PTSD, including “not [being] able to be around black

men at all” because when she is in their presence, she has a “full-on

panic attack.” And third, in its opening and closing arguments, the

State described the women as “young,” “naïve,” and “innocent” girls

while describing Mr. Green as a “big, old, fast linebacker” who was a

“wolf in sheep’s clothing” and who took the women back to his

“lair.”

I. The Proceedings Below and Mr. Green’s Defense

¶38 The State charged Mr. Green separately with respect to each

of the six women. It charged him with the kidnapping and forcible

sexual abuse of L.P.; the rape, object rape, and forcible sexual abuse

of V.S. and C.H.; and the rape of A.P., M.H., and C.D.

¶39 In his defense, Mr. Green argued that each of the six women

had lied about her encounter with him. He claimed they did so for

various reasons, including because they hoped to “repair a

relationship,” wanted “money” and “attention,” sought a way to get

“help with . . . grades” (through an academic accommodation),

needed “an excuse” for “breaking curfew,” or were “upset about not

getting another date.”

¶40 As the cases proceeded, the State moved under rule 404(b) of

the Utah Rules of Evidence to have all six women’s allegations

admitted at all six trials to rebut Mr. Green’s defense that the women

fabricated their testimonies. After reviewing the evidence under the

Utah Rules of Evidence and the doctrine of chances, the district court

granted the motion. Defense counsel then moved to consolidate all

six trials into one. The district court granted the motion and

consolidated the cases. The trial for the consolidated case lasted ten

days. Mr. Green was convicted on eight counts and acquitted of four.

He was convicted of raping M.H., C.H., C.D., V.S., and A.P. He was

also convicted of the object rape and the forcible sexual abuse of V.S.

and of the sexual battery of L.P. He was acquitted of the kidnapping

of L.P., the forcible sexual abuse of L.P., the object rape of C.H., and

the forcible sexual abuse of C.H.

9

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Opinion of the Court

¶41 Mr. Green appealed. We have jurisdiction pursuant to Utah

Code section 78A-3-102(3)(i).

Standard of Review

¶42 We address four issues in this appeal: (1) whether the district

court erred in admitting the other-acts evidence, (2) whether the

district court erred in admitting hearsay evidence, (3) whether

defense counsel was ineffective at trial, and (4) whether Mr. Green’s

convictions should be reversed for cumulative error.

¶43 The appropriate standard of review for a district court’s

decision to admit or exclude evidence is “abuse of discretion.” 3 A

district court abuses its discretion when it admits or excludes

“evidence under the wrong legal standard.” 4 “[W]hether the district

court applied the proper legal standard in assessing the admissibility

of . . . evidence is a question of law that we review for correctness.”5

If the district court applies the correct legal standard, it abuses its

discretion only when “its decision to admit or exclude evidence is

beyond the limits of reasonability.” 6

¶44 “An ineffective assistance of counsel claim raised for the first

time presents a question of law.” 7

¶45 Before reversing a verdict or sentence under the cumulative

error doctrine, we review each claim of error to determine whether

“(1) an error occurred, (2) the error, standing alone, has a conceivable

potential for harm, and (3) the cumulative effect of all the potentially

harmful errors undermines [our] confidence in the outcome.”8 If we

determine “that either a party’s claim did not amount to an error, or

that the claim was an error but has no potential to cause harm on its

own, the claim cannot weigh in favor of reversal under the

cumulative effects test.” 9

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3 See State v. Cuttler, 2015 UT 95, ¶ 12, 367 P.3d 981.

4 See id.

5 Id. (cleaned up).

6 Id. (cleaned up).

7 Wyatt v. State, 2021 UT 32, ¶ 11, 493 P.3d 621 (cleaned up).

8 State v. Martinez-Castellanos, 2018 UT 46, ¶ 42, 428 P.3d 1038.

9 Id.

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Analysis

¶46 On appeal, Mr. Green asks us to reverse his convictions. He

contends that the district court abused its discretion and that his

counsel was ineffective in various ways. He first challenges the

district court’s admission of other-acts evidence under the doctrine

of chances and the Utah Rules of Evidence. In addition, both he and

the State urge us to overrule our doctrine-of-chances precedent.

¶47 Mr. Green also challenges the district court’s admission of

several out-of-court statements, claiming they are inadmissible

hearsay. The State responds that the challenged statements were

admissible because they fall under one or more exceptions to or

exemptions from the hearsay rule.

¶48 Next, Mr. Green asserts that his counsel was ineffective in

(1) moving to consolidate the six cases into one, (2) agreeing to the

Tribune Stipulation and permitting documentary exhibits to go into

the jury deliberations, (3) failing to object to hearsay statements, and

(4) failing to challenge the purported improper racial theme

allegedly developed by the State. Finally, Mr. Green asks us to

reverse the jury verdict under the cumulative error doctrine.

¶49 We are persuaded that the doctrine of chances has, in

significant respects, been difficult to apply in practice, and that its

requirements deviate from the plain text of the rules of evidence.

Accordingly, we abandon the doctrine in favor of a plain-text

analysis of the rules of evidence. Reviewing the district court’s other-

acts evidence determination under the language of the rules of

evidence, absent the doctrine-of-chances framework, we conclude

that the district court did not abuse its discretion in admitting the

evidence.

¶50 Mr. Green’s additional challenges fail. All but four of the out-

of-court statements admitted by the district court were admissible

under the prior consistent statement rule. Although the remaining

four do not fall under any hearsay exemption or exception, the

court’s errors in admitting them were harmless given the

overwhelming evidence against Mr. Green and the fact that the

statements were cumulative of other properly admissible evidence.

Accordingly, Mr. Green’s ineffective assistance of counsel claims fail,

as does his cumulative error argument.

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Opinion of the Court

I. We Abandon the Doctrine of Chances in Favor of a Plain-Text

Application of the Rules of Evidence

A. The Doctrine of Chances Is an Analytical Framework for Assessing

Some Other-Acts Evidence Under the Rules of Evidence

¶51 The doctrine of chances was born of a desire to provide an

analytical framework for addressing tensions inherent in rule 404(b)

of the Utah Rules of Evidence. That rule forbids “[e]vidence of a

crime, wrong, or other act” when offered “to prove a person’s

character in order to show that on a particular occasion the person

acted in conformity with the character.” 10 But it permits this type of

evidence when offered for “another purpose, such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” 11 The tension created by

these provisions is exacerbated by the fact that “evidence of prior

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

permissible purpose and an improper one.” 12

¶52 The doctrine of chances is intended to serve as an analytical

tool for assessing “other-acts” evidence in some contexts.

Traditionally, the doctrine has been used to rebut a defendant’s

claim that an unlikely event resulted from mistake, coincidence, or

accident. In one famous example, referenced in State v. Verde, 13 a

defendant, Smith, was charged with murder after his putative wife,

Mundy, died in the bathtub. 14 In his defense, Smith claimed that

Mundy’s death was accidental. 15 To rebut that defense, the

prosecution presented evidence showing that two other women who

had purportedly been married to Smith had also died in their

bathtubs under similar circumstances. 16 On appeal, the court

determined that although the evidence of the two other deaths was

inadmissible as evidence of Smith’s bad character, it was

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

11 Id. R. 404(b)(2).

12State v. Verde, 2012 UT 60, ¶ 16, 296 P.3d 673, abrogated on other

grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016.

13 See id. ¶ 49 & n.20.

14 See R v. Smith, (1915) 11 Crim. App. 229 (KB).

15 See id. at 233.

16 See id. at 229.

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nevertheless admissible because it bore “upon the question whether

the acts alleged to constitute the crime . . . were designed or

accidental.” 17

¶53 Under our formulation of the doctrine of chances, we have

allowed other-acts evidence to be admitted to show “the objective

improbability of the same rare misfortune befalling one individual

over and over.” 18 Of particular relevance to Mr. Green’s case, our

doctrine-of-chances caselaw has allowed for the admission of other-

acts evidence to rebut a defendant’s claim of fabrication. 19

¶54 In cases implicating the doctrine of chances, we have

required that a party seeking to admit other-acts evidence “satisfy

four threshold showings: materiality, similarity, independence, and

frequency,” 20 which aim to assess “whether a body of prior bad acts

evidence is being employed for a proper, non-character statistical

inference.” 21 If these foundational requirements are met, the doctrine

then asks a district court to evaluate the evidence under rule 403.22

At this stage, we have required that courts “identify the likely

inferences the jury would draw from the other-acts evidence and

then ask if the evidence’s probative value (the jury drawing a

permissible inference) [is] substantially outweighed by the danger of

unfair prejudice (the jury drawing an impermissible inference).” 23

B. More Good Than Harm Will Come from Abandoning the Doctrine

of Chances

¶55 Both Mr. Green and the State ask us to overturn our doctrine-

of-chances precedent. Mr. Green asks us to “overturn [our] holdings

in State v. Verde . . . about the admissibility of evidence under the

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17 Id. at 237.

18 Verde, 2012 UT 60, ¶ 47 (cleaned up).

19 See id. (explaining that the “doctrine defines circumstances

where prior bad acts can properly be used to rebut a charge of

fabrication”).

20 State v. Richins, 2021 UT 50, ¶ 56, 496 P.3d 158.

21 State v. Lowther, 2017 UT 34, ¶ 21, 398 P.3d 1032.

22See Verde, 2012 UT 60, ¶ 57 (stating that the “four foundational

requirements . . . should be considered within the context of a rule

403 balancing analysis”).

23 Richins, 2021 UT 50, ¶ 103.

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Opinion of the Court

doctrine of chances.” The State contends that our “recent, judicially

created ‘doctrine of chances’” is not “valid.”

¶56 “[W]e do not overrule our precedents lightly,” 24 and we

avoid doing so “unless they’ve proven to be unpersuasive and

unworkable, create more harm than good, and haven’t created

reliance interests.” 25 We are persuaded that, with respect to the

doctrine of chances, the “intentionally high bar” 26 for overruling

precedent has been cleared.

¶57 Significantly, the parties agree. Though their arguments

proceed under different rationales, Mr. Green and the State agree

that the doctrine is based on unpersuasive authority and has been

difficult to apply in practice. They also seem to agree—again, albeit

for different reasons—that the doctrine has created more harm than

good. And the parties agree that because the doctrine was

introduced into our caselaw just over a decade ago and has changed

in its application since then, the doctrine has not created reliance

interests.

¶58 We have recognized that “a uniform view amongst the

parties is a unique and powerful tell: damning evidence of how

poorly the test has worked and of the negligible benefit, if any, it’s

generated.”27 Here, we afford weight to the fact that both Mr. Green

and the State criticize the doctrine of chances and urge us to

reconsider its place in our caselaw.

¶59 Moreover, we note that in previous doctrine-of-chances

cases, we have acknowledged that criticisms like those described in

the parties’ briefs “merit careful consideration.” 28 And, on occasion,

in an effort to refine the doctrine and clarify its application, we have

done our best to address some of these criticisms. 29 Yet, despite our

_____________________________________________________________

24 Eldridge v. Johndrow, 2015 UT 21, ¶ 21, 345 P.3d 553 (cleaned

up).

25 Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89, ¶ 57, 416 P.3d

663.

26 State v. Wilder, 2018 UT 17, ¶ 19, 420 P.3d 1064.

27 Id. ¶ 27.

28 See State v. Argueta, 2020 UT 41, ¶ 33, 469 P.3d 938.

29 See id. ¶ 30 (taking the “opportunity to further clarify the

application of the doctrine of chances and the burden that the party

(continued . . .)

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efforts to clarify the doctrine, we seem to have generated more

confusion than light. This leads us to conclude that while the

doctrine may have been analytically helpful in some cases, it has

been confusing and difficult to apply in others. And because we are

not convinced that further attempts at elucidating the doctrine will

yield greater clarity, we conclude that more good than harm will

come from abandoning the doctrine.

C. The Rules of Evidence Constitute the Primary Law of Evidence

¶60 While the State articulates a clear path forward absent the

doctrine of chances—suggesting that the concerns the doctrine seeks

to address are “more elegantly resolved” in the plain language of the

rules of evidence—Mr. Green has not done so. He argues that the

doctrine lacks adequate safeguards and should not be available to

rebut a defendant’s fabrication defense, but he does not explain how

to implement additional safeguards absent the framework the

doctrine provides. Regardless, we are convinced that the correct

approach to admitting other-acts evidence is to adhere to the text of

the rules of evidence.

¶61 On several occasions we have affirmed that courts are bound

by the text of the rules of evidence. 30 In State v. Thornton, for

example, we repudiated the requirement in our prior opinions that

trial judges scrupulously examine other-acts evidence under rule

404(b). 31 Upon reflection, we concluded that the “scrupulous

examination” requirement was “more confusing than helpful.” 32 In

eliminating that requirement, we stressed “that ‘scrupulous

examination’ is not an independent requirement of rule 404(b)”33

and “that it is our rules that state the primary law of evidence in the

State of Utah.”34

seeking to admit evidence under the doctrine must meet”); Richins,

2021 UT 50, ¶ 53 (responding to appellant’s “valid concerns about

the application of the doctrine of chances”).

30See, e.g., Lowther, 2017 UT 34, ¶ 1 (“In applying rule 403, a court

is not required to consider any set of factors or elements, but is

bound by the language of the rule.”).

31 2017 UT 9, ¶ 44.

32 Id. ¶¶ 3, 44, 47.

33 Id. ¶ 55.

34 Id. ¶ 46 (cleaned up).

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Opinion of the Court

¶62 The doctrine of chances has likewise proven to be more

confusing than helpful. And its requirements have strayed from the

plain text of the rules of evidence. So we now overrule the doctrine

of chances and reemphasize that the rules of evidence represent the

primary law of evidence.

¶63 “Evidence of prior bad acts must clear several evidentiary

hurdles before admission—rules 404(b), 402, and 403.” 35 Under rule

404(b), the 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).” 36 Rule 402 “requires that

evidence be relevant, which is defined in rule 401 as evidence having

any tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable

than it would be without the evidence.” 37 And rule 403 permits a

trial court to exclude evidence “if its probative value is substantially

outweighed by a danger of . . . unfair prejudice, confusing the issues,

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

presenting cumulative evidence.” 38

¶64 In sum, the rules of evidence provide that evidence of prior

crimes, uncharged misconduct, or bad acts “is admissible if it (1) is

relevant to, (2) a proper, non-character purpose, and (3) does not

pose a danger for unfair prejudice that substantially outweighs its

probative value.” 39

II. The District Court Did Not Abuse Its Discretion in Admitting the

Other-Acts Evidence

¶65 Having abandoned the doctrine of chances, we must

determine whether the district court’s admission of the other-acts

evidence in Mr. Green’s case was supportable under a plain reading

_____________________________________________________________

35State v. Lucero, 2014 UT 15, ¶ 13, 328 P.3d 841, abrogated on other

grounds by Thornton, 2017 UT 9.

36 Thornton, 2017 UT 9, ¶ 58.

37 Lucero, 2014 UT 15, ¶ 17 (cleaned up).

38 UTAH R. EVID. 403.

39 State v. Killpack, 2008 UT 49, ¶ 45, 191 P.3d 17 (cleaned up).

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of the rules of evidence. 40 Though the district court viewed its

analysis of the other-acts evidence’s admissibility through the

doctrine-of-chances lens, we determine that its ultimate conclusion

was not error under a textual analysis of the rules of evidence. 41 The

evidence is admissible under a plain reading of rule 404(b), and the

district court did not abuse its discretion in concluding that the

evidence did not violate rule 403. 42

_____________________________________________________________

40 We note the possible alternative approach of reviewing the

district court’s other-acts evidence determination under the doctrine

of chances and abandoning the doctrine prospectively only. Under

the “long-standing traditional rule,”

the law established by a court decision applies both

prospectively and retrospectively, even when the

decision overrules prior case law. Only if retrospective

application of a decision creates a substantial injustice

will a court limit a new decision to prospective

application. A substantial injustice is often shown by

an impairment of legal interests or expectations that

have been created by reliance on the old law.

State v. Saunders, 1999 UT 59, ¶ 53, 992 P.2d 951 (plurality opinion)

(cleaned up). We adhere to the traditional approach here and

accordingly apply the law established by this decision both

prospectively and retrospectively. Mr. Green has asked that we

overrule our doctrine-of-chances precedent. In doing so, he

acknowledges that “there is not a strong reliance interest that would

be compromised.” So we conclude that Mr. Green’s legal interests

and expectations are not impaired by our application of the plain

text of the rules of evidence to the facts of his case.

41 See State v. Thornton, 2017 UT 9, ¶ 51, 391 P.3d 1016 (“For most

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

incorrect decision on the operative question presented.”); see also

State v. Von Niederhausern, 2018 UT App 149, ¶ 14, 427 P.3d 1277

(“[W]e no longer focus on the path the trial court followed in

reaching its conclusion, but review only the conclusion itself.”).

42Mr. Green does not dispute the relevance of the other-acts

evidence under rule 402.

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Opinion of the Court

A. The Other-Acts Evidence Is Admissible Under a Plain Reading

of Rule 404(b)

¶66 Mr. Green contends that the other-acts evidence is

inadmissible under the plain language of rule 404(b) because in his

case there is no “genuine issue of mistake or accident.” 43 The State,

on the other hand, asserts that the evidence is admissible under the

plain language of rule 404(b) because it is relevant to a proper, non-

character purpose—the purpose of rebutting Mr. Green’s claims of

fabrication.

¶67 The State asked the district court to admit the other-acts

evidence, arguing it is admissible to rebut Mr. Green’s “charge of

fabrication, mistake, or lack of intent.” In its view, the evidence is

“highly probative of the primary issue at trial—whether the

complaining witness is fabricating her allegation of sexual assault

and/or whether Mr. Green mistakenly believed the complaining

witness consented to sexual activity.” The district court admitted the

evidence. It reasoned that the State had “offered the evidence for the

purpose of rebutting arguments against fabrication, consent, or lack

of intent, rather than as evidence of [Mr. Green’s] propensity to

commit crime.”

¶68 The plain language of rule 404(b) prohibits the admission of

evidence of a “crime, wrong, or other act” when offered “to prove a

person’s character in order to show that on a particular occasion the

person acted in conformity with the character.” 44 The rule goes on to

say that this type of evidence “may be admissible for another

purpose, such as proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident.” 45

_____________________________________________________________

43Mr. Green requests that if we overturn or limit our doctrine-of-

chances holdings, we remand for the district court to determine “in

the first instance” whether the other-acts evidence is admissible

under rule 404(b). This request rests on a misunderstanding of the

doctrine of chances. As noted above, the doctrine is meant to guide

the analysis under rules 404(b) and 403. It therefore does not

supplant analysis under rule 404(b); rather, it aids that analysis.

Here, the district court did not, as Mr. Green suggests, fail to

consider the other-acts evidence under rule 404(b).

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

45 Id. R. 404(b)(2).

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The question before us, then, is whether the State offered the other-

acts evidence to prove Mr. Green’s character in order to show that he

acted in conformity with his character, or whether the State offered it

“for another purpose.”

¶69 Mr. Green’s primary defense at trial was that the victims

fabricated their accusations for various reasons, including because

they sought “money” and “attention” and because they were “upset

about not getting another date.” The district court admitted evidence

of other acts to “dispel any realistic possibility of independent

invention.” In other words, the evidence was admitted to rebut Mr.

Green’s fabrication defense.

¶70 The list of enumerated purposes for which other-acts

evidence may be admissible under rule 404(b) does not include the

rebuttal of fabrication. But the plain text of the rule, in conjunction

with the other rules of evidence, suggests that the evidence may be

admissible to rebut a fabrication defense. We have described rule

404(b) as an “inclusionary rule with regard to other . . . evidence [of

crimes] which is offered for a proper, noncharacter purpose.” 46 In a

footnote in State v. Lowther, we mentioned that there is no

“presumption of either admissibility or inadmissibility” within rule

404(b). 47 But while there is no express presumption of admissibility

or inadmissibility, a contextual analysis of the rules and their

structure supports an inclusionary approach to admitting evidence

under rule 404(b). Rule 402 provides that relevant evidence is

generally admissible unless prohibited by the United States or Utah

Constitutions, statute, or applicable rule. 48 Rule 401 defines evidence

as “relevant” if it “has any tendency to make a fact more or less

probable” and “is of consequence.” 49 And rule 404(b)’s use of “such

as” indicates that the list of non-character purposes is “illustrative

and not exclusive.” 50

_____________________________________________________________

46 See State v. Decorso, 1999 UT 57, ¶ 24, 993 P.2d 837, abrogated on

other grounds by Thornton, 2017 UT 9.

47 2017 UT 34, ¶ 30 n.40, 398 P.3d 1032.

48 UTAH R. EVID. 402.

49 See id. R. 401.

50 See State v. Verde, 2012 UT 60, ¶ 15, 296 P.3d 673, abrogated on

other grounds by Thornton, 2017 UT 9.

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Opinion of the Court

¶71 Stated plainly, whether other-acts evidence is admissible

under rule 404(b) depends only on whether it is being offered for a

non-character purpose. Although, as Mr. Green accurately points

out, the other-acts evidence in his case was not admitted to show the

absence of mistake or accident, it was admitted for a non-character

purpose—to show that the women’s allegations were not recently

fabricated. Mr. Green put the women’s credibility at issue by

claiming they were lying, and the accusations of multiple similar acts

of sexual misconduct by Mr. Green corroborated each woman’s

story. The other-acts evidence was therefore admissible under a

plain-text reading of rule 404(b).

B. The District Court Did Not Abuse Its Discretion in Admitting the

Other-Acts Evidence Under Rule 403

¶72 Mr. Green next challenges the district court’s determination

that the other-acts evidence is admissible under rule 403. He offers

three ways in which the district court’s admission of the evidence

violated the rule: (1) the court failed to weigh competing inferences,

(2) the court failed to consider the prejudicial effect of the number of

other accusers and the volume of the other-acts evidence, and (3) the

court’s limiting instruction did not mitigate the unfair prejudice

created by the other-acts evidence. We are not convinced by Mr.

Green’s arguments and conclude that the district court’s decision to

admit the other-acts evidence was within its discretion.

¶73 Mr. Green argued to the district court that the other-acts

evidence was inadmissible under rule 403 because, in his view, there

was no “need for the evidence,” the “duplicative evidence” created a

risk of provoking a sense of horror in the jury, and the State’s

purpose in admitting the evidence was simply to bolster the victims’

credibility. While the court recognized the “danger of unfair

prejudice,” it identified two reasons that danger did not make the

evidence inadmissible under rule 403. First, it determined that the

danger of unfair prejudice was mitigated because the other-acts

evidence was “highly similar” in each case. Second, it concluded that

it could further mitigate the danger of unfair prejudice by presenting

a limiting instruction to the jury.

¶74 Mr. Green first challenges the court’s decision by claiming

the court failed to weigh competing inferences. He defends this

position by pointing to our holding in State v. Richins.51 In that case,

_____________________________________________________________

51 2021 UT 50, 496 P.3d 158.

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Richins was charged with lewdness when a fifteen-year-old girl

alleged she saw him masturbating in his yard. 52 The district court

admitted evidence of “four prior occasions when Richins had been

accused of exposing and/or stimulating himself in public,” and the

court of appeals upheld that determination. 53 After reviewing the

case under the doctrine-of-chances framework, we reversed. 54 We

held that the court of appeals incorrectly analyzed the doctrine’s

frequency requirement and that the other-acts evidence ran afoul of

rule 403. 55 We explained we had “always envisioned that rule 403

would play a crucial role in the doctrine of chances analysis.” 56 And

we discussed the requirement, which originated in State v. Verde and

continued to develop thereafter, that if other-acts evidence “may

sustain both proper and improper inferences under rule 404(b), the

court should balance the two against each other under rule 403.”57 In

Richins’s case, we concluded that because the district court had not

conducted the balancing described in Verde and subsequent caselaw

(i.e., the court had not balanced competing (proper and improper)

inferences), the court of appeals erred in upholding the district

court’s other-acts evidence determination under rule 403. 58

¶75 Although Mr. Green accurately describes our analysis and

holding in Richins, we note that our review in that case was

conducted under the doctrine-of-chances framework. As noted

above, having abandoned that framework, we now review Mr.

Green’s case to determine whether the district court abused its

discretion under the plain text of the rules of evidence, without

consideration of the doctrine of chances. Our holding in Richins is

therefore less relevant than it would be if we were to retain the

doctrine.

¶76 In reviewing the other-acts evidence under rule 403, the

district court in Mr. Green’s case recognized the State’s avowed

purpose in seeking to admit the evidence—“to rebut arguments that

_____________________________________________________________

52 Id. ¶¶ 1, 4.

53 Id. ¶¶ 2–3, 32–35.

54 Id. ¶¶ 41–55, 114–15.

55 Id. ¶¶ 96, 103–04.

56 Id. ¶ 98.

57 Id.; Verde, 2012 UT 60, ¶ 18.

58 Richins, 2021 UT 50, ¶ 103.

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Opinion of the Court

the alleged victims’ testimony was fabricated, that the sexual

conduct was consensual, or that [Mr. Green] believed he had

received consent and thus lacked the requisite mens rea.”

Acknowledging the possibility that the evidence could create “an

undue tendency to suggest decision on an improper basis,” the court

described the possibility that the evidence could “lead a jury to

punish [Mr. Green] for acts other than those charged in the instant

case, or confuse it.” Weighing the probative value of the evidence

against the dangers set forth in rule 403, the court determined that

“the danger of unfair prejudice is slight . . . and does not outweigh

the highly probative value of [the] evidence.”

¶77 Among other reasons for admitting the evidence, the court

referred to its analysis of the similarity requirement under the

doctrine of chances to explain the evidence’s probative value. In that

analysis, the court highlighted the similarities among the women’s

accounts. As one example, in C.H.’s case, the court noted as follows:

According to her testimony, like three of the other

alleged victims, she met [Mr. Green] on Tinder. Like

five of the others, she was assaulted at her first private

meeting with [Mr. Green]. Like five of the others, her

assault occurred at [Mr. Green’s] apartment. Like four

of the others, he had put on a movie for them to watch

first. Like all the others, she verbally and physically

communicated that she did not consent. Like five of the

others, it was a vaginal rape with his penis. Like four of

the others, he told her she would enjoy it or was

enjoying it.

Mr. Green contends that the similarity of the allegations did not

reduce the likelihood that the jury would draw an improper

probability inference from the evidence. Indeed, the district court

considered the possibility that the jury would use the other-acts

evidence to draw an improper inference, but, given the similarities

among the women’s accounts, it concluded that it was unlikely that a

jury would find the evidence in one woman’s case to be lacking but

find the evidence in another woman’s case compelling enough to

deliver a verdict on an improper basis.

¶78 Under the language of rule 403, “the probative value of the

evidence must be substantially outweighed by the danger of unfair

prejudice; and unfair prejudice results only where the evidence has

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an undue tendency to suggest decision upon an improper basis.”59

We therefore “indulge a presumption in favor of admissibility.”60

With these principles in mind, we acknowledge that the other-acts

evidence prejudiced Mr. Green. But we cannot say that the district

court abused its broad discretion in concluding that the similarities

among the women’s accounts reduced the tendency for the jury to

decide upon an improper basis and that the danger of unfair

prejudice did not substantially outweigh the evidence’s probative

value.

¶79 Mr. Green also disputes the district court’s other-acts

determination under rule 403 because, he contends, the court failed

to consider the prejudicial effect of the number of other accusers and

the volume of other-acts evidence. We decline to overturn the district

court’s determination on this ground, because we conclude that the

court did not overlook the considerations Mr. Green raises. The

district court considered Mr. Green’s argument that if the jury were

“allowed to hear a parade of six women all testify as to alleged

assaults, . . . the duplicative evidence has a serious risk of arousing a

sense of horror in the jury.” It noted the possibility that “[a] jury,

listening to a litany of accusations, could be tempted to deliver a

verdict on a basis other than the evidence in the instant case” but

nevertheless determined that the danger of unfair prejudice did not

substantially outweigh the evidence’s probative value.

¶80 The district court reasoned that a limiting instruction would

serve to offset the danger of unfair prejudice posed by the other-acts

evidence. The limiting instruction to the jury stated, in relevant part:

Evidence that defendant committed alleged crimes

against the other alleged victims was not admitted to

show that he has a general criminal propensity, or to

prove a character trait of the defendant, or to show that

he acted in a manner consistent with such a trait. You

may not convict a person of a crime simply because

you believe he may have committed some other act at

another time.

Mr. Green contends, pointing again to Richins for support, that the

court’s limiting instruction was insufficient to have a curative effect

_____________________________________________________________

59 State v. Lucero, 2014 UT 15, ¶ 32, 328 P.3d 841 (cleaned up),

abrogated on other grounds by Thornton, 2017 UT 9.

60 Id. (cleaned up).

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Opinion of the Court

and thereby render the other-acts evidence admissible under rule

403. In Richins we “applaud[ed]” and “commend[ed] the district

court for its decision to . . . instruct the jury about the proper use of

prior acts evidence” but ultimately held that “the danger of the jury

drawing the impermissible inference so substantially outweighed the

evidence’s probative value that the . . . jury instruction could not

have a curative effect.” 61 We noted that “[i]n a different case,” steps

like issuing a jury instruction “might have had a material impact on

the rule 403 balancing.” 62 We think this happened in Mr. Green’s

case. The district court issued the limiting instruction to “ensure that

the jury does not misunderstand the purpose of the . . . evidence and

misapply it.” It took this step while weighing the probative value of

the evidence against the danger of unfair prejudice. And it

ultimately determined that the danger of unfair prejudice was

mitigated by the similarities among the accounts and by the limiting

instruction. We hold that this determination was not an abuse of

discretion under the plain language of rule 403.

¶81 In sum, the district court did not abuse its discretion in

admitting the other-acts evidence. The evidence was admitted for a

non-character purpose under rule 404(b), and the district court was

within its discretion when it determined that the evidence’s

probative value was not substantially outweighed by a danger of

unfair prejudice under rule 403.

III. The District Court Did Not Abuse Its Discretion in Admitting

Out-of-Court Statements

A. All but Four of the Out-of-Court Statements Qualify as Being “Not

Hearsay” Under the Prior Consistent Statement Exemption to the

Hearsay Rule

¶82 In vying for the admissibility of the out-of-court statements

at issue here, the State primarily argues that the declarations were

prior consistent statements offered to rebut a charge of recent

fabrication. Mr. Green argues that the prior consistent statement

exemption does not apply because the victims had motive to

fabricate their accusations.

_____________________________________________________________

61 Richins, 2021 UT 50, ¶ 106.

62 Id.

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¶83 Hearsay is generally defined as an out-of-court statement

offered “to prove the truth of the matter asserted.”63 In other words,

hearsay is a statement that the declarant originally made outside of

the current trial or hearing and is now being used to prove the truth

of what was said. 64 There are multiple exemptions from and

exceptions to the rule against hearsay. Under specific circumstances,

some out-of-court statements used for their truth are classified as

“not hearsay” and are excluded from the rule. 65 Others are still

considered hearsay but are nonetheless admissible due to the

conditions under which they were made. 66 Where an exemption or

exception does not apply, and counsel fails to object to a statement’s

admission, a defendant may, in some cases, bring a subsequent claim

for ineffective assistance of counsel. 67

¶84 Rule 801 provides a relevant exemption to the rule against

hearsay, defining certain statements as “not hearsay” where the

declarant (1) testifies, (2) is subject to cross-examination, (3) the

statement is “consistent with the declarant’s testimony,” and (4) the

testimony “is offered to rebut an express or implied charge that the

declarant recently fabricated it or acted from a recent improper

influence or motive in so testifying.” 68 This is known as the prior

consistent statement exemption to the hearsay rule. This exemption

“applies only to premotive, consistent, out-of-court statements.” 69 Its

purpose “is to admit statements that rebut a charge of recent

fabrication or improper influence or motive, not to bolster the

believability of a statement already uttered at trial.” 70 In other

_____________________________________________________________

63 UTAH R. EVID. 801(c).

64 See, e.g., State v. Johnson, 2022 UT 14, ¶ 21, 508 P.3d 100.

65 See UTAH R. EVID. 801(d).

66 See id. R. 803–804.

67 See, e.g., Bolander v. Iowa, 978 F.2d 1079, 1084 (8th Cir. 1992)

(holding that the defendant received ineffective assistance of counsel

because his attorney did not object to hearsay statements made by

the wife of the victim).

68 UTAH R. EVID. 801(d)(1)(B).

69 State v. Bujan, 2008 UT 47, ¶ 11, 190 P.3d 1255.

70 Id.

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Opinion of the Court

words, “such statements are admissible only if they were made prior

to the time a motive to fabricate arose.” 71

¶85 The State argues that almost all the out-of-court statements

presented at trial qualify as prior consistent statements because any

motive the victims may have had to fabricate arose at the time the

Tribune Articles were published. The rationale behind the State’s

position is that this motive to coordinate fabrications (e.g., financial

gain and attention)—a motive that Mr. Green advances—could not

have existed before the initial allegations gained notoriety in the

news. The State further emphasizes that rule 801 does not require

that a prior statement rebut all possible improper influences or

motives. Instead, it claims the rule merely requires that the prior

statement “rebut an express or implied charge” of improper

influence or motive.72 In other words, the State argues that because

the statements at issue were given independently and before the

Tribune Articles were published—the publication constituting “an”

improper motive for fabrication—the statements are admissible

under rule 801.

¶86 In response, Mr. Green contends that the victims had motive

to fabricate their statements even before the Tribune Articles were

published; thus, the prior consistent statement exemption does not

apply. He lists several potential motives the victims may have had to

concoct their accusations (some of which theoretically arose

immediately after the rapes occurred) that would render the

statements inadmissible. And, to further his argument, Mr. Green

asserts that for a prior consistent statement to be admissible under

rule 801, it must have been given before any potential motive to

fabricate arose. 73

¶87 We disagree with Mr. Green’s interpretation of rule 801 and,

for the reasons discussed below, hold that all but four of the out-of-

court statements at issue qualify as prior consistent statements and

that the district court did not abuse its discretion in admitting them.

_____________________________________________________________

71 State v. Nunes, 2020 UT App 145, ¶ 25, 476 P.3d 172 (cleaned

up).

72 (Quoting UTAH R. EVID. 801(d)(1)(B) (emphasis added).)

73Mr. Green also contends that his counsel at trial was ineffective

because many of the statements were admitted without objection,

but as discussed in Part IV infra, the errors were harmless.

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Further, we hold that any error the district court made by admitting

the four hearsay statements was harmless because the evidence

against Mr. Green was overwhelming.

1. The Primary Motive for Fabrication Advanced by Mr. Green Is

That the Victims Were Influenced by the Tribune Articles to Seek

Notoriety or Financial Gain

¶88 It is undisputed that Mr. Green challenges the

trustworthiness of his accusers. The bedrock of his defense is that the

accusations against him were fabricated. While Mr. Green postulates

various hypothetical motives for fabrication, all but one of these

motives are referenced only in the footnotes of his briefs. In these

footnotes, Mr. Green theorizes that the women might have lied about

being sexually assaulted because they were upset about not getting a

second date, or because they wanted to preserve a romantic

relationship, avoid embarrassment, evade punishment for breaking

curfew, fulfill an assignment for class, or receive academic

accommodations. But Mr. Green provides little support for these

theories, and from the body of his briefs, it is clear that the main

theory Mr. Green advances in support of his claim that the women

fabricated their allegations is that they had been influenced by the

Tribune Articles.

¶89 While Mr. Green does not clearly articulate what about the

Tribune Articles motivated the women to accuse him, he references

their publication and the effect they had on the women more than

two dozen times throughout his briefs. For example, Mr. Green

repeatedly emphasizes that five of the six victims did not report

being raped to the police until after at least one of the Tribune

Articles had been published. Also, multiple times, Mr. Green asserts

that the similarities and details from the women’s allegations stem

from their having read the Tribune Articles. And, on more than one

occasion, Mr. Green specifically claims that the Tribune Articles

provided the victims with both the motive and the ability to

fabricate.

¶90 These repeated references strongly suggest that Mr. Green

contends that all six women were primarily motivated by the desire

for attention or the prospect of financial gain. This inference is

further supported by the record before us, which indicates that on at

least four occasions, Mr. Green asserted that the women waited to

accuse him until he had “signed a contract to play professional

football,” insinuating that the women’s true motive—bolstered by

the publication of the Tribune Articles—was (as articulated by Mr.

Green) that they wanted “money” or “attention.” So both the record

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and the parties’ briefs demonstrate that the primary motive asserted

by Mr. Green for fabrication arose on July 21, 2016, when the first

Tribune Article was published. Because most of the statements that

Mr. Green challenges were made long before that date and were

offered to rebut his express charge of fabrication, they are admissible

under rule 801. 74

a. All but two of the statements at issue in M.H.’s case are prior

consistent statements

¶91 All but two of the statements at issue in M.H.’s case are

admissible under rule 801. A.W.’s testimony, A.W.’s Cousin’s

testimony, and M.H.’s poem were all properly admitted—A.W.’s

testimony and A.W.’s Cousin’s testimony both recount statements

given before the motive to fabricate created by the Tribune Articles

arose, and M.H. wrote her poem almost three years before the first

Tribune Article was published. A.W. testified that in November or

December 2013, M.H. told him she had been raped. A.W.’s Cousin

testified that in November or December 2013, A.W. told him that he

had heard that M.H. had been raped. And M.H.’s poem, which

details her rape, was written in November 2013. In other words, all

three of these statements were given almost three years before the

first Tribune Article was published in July 2016. Because these

statements were offered to rebut Mr. Green’s claim that M.H.

recently fabricated her accusations, they are admissible under rule

801, and the district court did not abuse its discretion in admitting

them.

¶92 Only the statements proffered by A.H. and N.M.—that in the

summer of 2016, M.H. told them Mr. Green had raped her—were

given after the publication of the first Tribune Article. The district

court, therefore, erred in admitting them.

b. All the statements at issue in L.P.’s case are prior consistent

statements

¶93 The statements Mr. Green challenges in L.P.’s case are

admissible under rule 801. The testimonies of K.E., M.J., and S.S.—

that in October 2014, L.P. told them that Mr. Green had physically

restrained her and tried to rape her—are statements given almost

_____________________________________________________________

74 For the purposes of our analysis concerning the victims’ recent

motive to fabricate, we assume that the Tribune Articles qualify as a

sufficient motive under rule 801.

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two years before the first Tribune Article was published in July 2016.

And K.P.’s testimony—that in October 2014, L.P. told her that while

on a date with Mr. Green, she was “raped with her clothes on”—is a

statement that was also given almost two years before the first

Tribune Article was published. So because these statements were

offered to rebut Mr. Green’s claim that L.P. fabricated her

accusations, they are admissible as prior consistent statements, and

the district court did not abuse its discretion in admitting them.

c. Only one of the statements at issue in C.H.’s case fails to qualify

as a prior consistent statement

¶94 In support of C.H.’s allegations, the State called C.H.’s

sorority sister, A.N., who testified that in October 2015, C.H. told her

that she had been raped. A.N. further testified that sometime in 2016,

after the first two Tribune Articles were published, C.H. told her that

Mr. Green was the one who raped her. The first of these two

statements was given almost a year before any Tribune Article was

published and was offered to rebut Mr. Green’s claim that C.H.

fabricated her accusations; thus, the district court did not abuse its

discretion in admitting it. But the second statement, which identified

Mr. Green as the person who raped her, was given shortly after two

of the Tribune Articles were published, so the court erred in

admitting it at trial.

d. All but one of the statements at issue in C.D.’s case are prior

consistent statements

¶95 Only one of the statements at issue in C.D.’s case was given

after the publication of the first Tribune Article; all the others qualify

as prior consistent statements. C.D.’s Friend’s testimony—that in the

fall of 2014, C.D. told him that Mr. Green forced himself on her—was

given almost two years before the first Tribune Article was

published. The essay that C.D. wrote, which described her

experience as a rape victim, was written in October 2014, also pre-

dating the Tribune Articles by almost two years. And the testimony

that her mother, A.D., gave—that in the fall of 2015, C.D. told her

that she had been raped—was likewise given almost a year before

the first Tribune Article was published. So because they were offered

to rebut Mr. Green’s claim that C.D. fabricated her accusations after

reading the Tribune Articles, all these statements are admissible

under rule 801, and the district court did not abuse its discretion in

admitting them.

¶96 But the statement in A.D.’s testimony—that in 2016, C.D. told

her that Mr. Green raped her—was given shortly after the first two

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Tribune Articles were published, so the court erred in admitting it at

trial.

e. All the statements at issue in A.P.’s case are prior consistent

statements

¶97 All the statements Mr. Green challenges in A.P.’s case are

admissible under rule 801. A.P.’s statement that B.H. mentioned in

his testimony—that in July 2015, she told him that Mr. Green had

raped her—was given a year before the first Tribune Article was

published. And A.P.’s statement that J.E. quoted in her testimony—

that in November 2015, A.P. told her that Mr. Green raped her—was

made eight months before any of the Tribune Articles were

published. So because they were offered to rebut Mr. Green’s claim

that A.P. fabricated her accusations, these statements qualify as prior

consistent statements, and the district court did not abuse its

discretion in admitting them.

f. All the statements at issue in V.S.’s case are prior consistent

statements

¶98 All the statements Mr. Green challenges in V.S.’s case are

admissible under rule 801. V.S.’s statement that both K.A. and R.B.

repeated—that one night in January 2015, V.S. told them that Mr.

Green raped her—was made a year and a half before the first

Tribune Article was published. And V.S.’s statement that R.M.

reiterated—that sometime in January 2015, V.S. told him that she

had been raped—was also made 18 months before any Tribune

Article was published. So because they were offered to rebut Mr.

Green’s claim that V.S. fabricated her accusations, these statements

qualify as prior consistent statements, and the district court did not

abuse its discretion in admitting them.

2. Rule 801(d)(1)(B) Does Not Require That Every Possible Motive to

Fabricate Be Rebutted

¶99 Mr. Green expressly argues that the victims invented their

stories of rape after reading the Tribune Articles. To rebut these

claims, the State introduced the consistent testimony detailed above

to support the victims’ allegations. Rule 801(d)(1)(B) states that to be

considered “not hearsay,” the prior consistent statement must be

offered “to rebut an express or implied charge” that the declarant

fabricated the testimony provided.75 The rule does not require that

_____________________________________________________________

75 UTAH R. EVID. 801(d)(1)(B) (emphasis added).

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the statement rebut every possible motive to fabricate. While Utah

courts have yet to expound on this subject, other jurisdictions have

analyzed this issue when interpreting versions of rules similar to

801(d)(1)(B). And where our caselaw analyzing a rule of evidence is

insufficient, we may look to other courts’ interpretations for

guidance. 76

¶100 In interpreting rule 801(d)(1)(B)(i) of the Federal Rules of

Evidence—which is functionally identical to Utah rule 801(d)(1)(B)—

the Ninth Circuit in United States v. Kootswatewa 77 explained that the

rule “does not require that a prior statement rebut all improper

influences or motives suggested by defense counsel. It is sufficient if

the prior statement tends to rebut one of them.” 78 Similarly, in

Dowthitt v. State, 79 where a Texas court of appeals interpreted a rule

of evidence that is also essentially identical to the Utah rule, 80 the

court held, “[I]t is not necessary that a prior consistent statement

have been made before all motives to fabricate arose. The rule

requires merely that the witness’ prior consistent statement be

offered to rebut an express or implied charge against him of recent

fabrication or improper influence or motive.” 81 We agree with these

courts. In Mr. Green’s case, because the prior consistent statements

were used to rebut Mr. Green’s express claims of fabrication and

were given before the first Tribune Article was published on July 21,

2016, we conclude that all but four of the statements were “not

hearsay” under the prior consistent statement exemption to the

hearsay rule. Thus, the district court did not err in admitting them at

_____________________________________________________________

76 See Robinson v. Taylor, 2015 UT 69, ¶ 10, 356 P.3d 1230 (stating

that when interpreting an evidentiary rule, we may “rely on

interpretations of similar federal rules by federal courts to assist our

own interpretation”); State v. Vallejo, 2019 UT 38, ¶ 76 n.14, 449 P.3d

39 (“[W]here a state court has interpreted a rule of evidence

determined to be in lockstep with the respective federal rule, we may

consider such state cases as well.”).

77 893 F.3d 1127 (9th Cir. 2018).

78 Id. at 1135.

79 931 S.W.2d 244 (Tex. Crim. App. 1996).

80 Compare UTAH R. EVID. 801(d)(1)(B) with TEX. R. EVID.

801(e)(1)(B).

81 Dowthitt, 931 S.W.2d at 264 (cleaned up).

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trial. But because the four remaining out-of-court statements do not

fall under a hearsay exception or exemption, the court erred in

admitting them.

B. The Court’s Errors in Admitting the Four Hearsay Statements

Were Harmless

¶101 “[A]n erroneous decision to admit or exclude evidence . . .

cannot result in reversible error unless the error is harmful.” 82 So

when an error is harmless, we do not disturb the district court’s

decision. “Harmless errors are errors which, although properly

preserved below and presented on appeal, are sufficiently

inconsequential that we conclude there is no reasonable likelihood

that the error affected the outcome of the proceedings.” 83 “For an

error to require reversal, the likelihood of a different outcome must

be sufficiently high to undermine confidence in the verdict.” 84 When

determining whether an error is harmless, “we consider a host of

factors including, among others, the importance of the witness’s

testimony to the prosecution’s case and the overall strength of the

State’s case. The more evidence supporting the verdict, the less likely

there was harmful error.” 85

¶102 In the case before us, the evidence against Mr. Green is

extensive. In light of everything presented at trial, including the

testimony of the six victims; the statements given by their friends,

family members, and colleagues; the documentary exhibits

provided; and Mr. Green’s own declarations, we conclude that the

case against Mr. Green is overwhelming. Accordingly, the likelihood

of a different outcome is insufficient “to undermine [our] confidence

in the verdict,” 86 and we conclude that the errors the district court

made in admitting the four statements were harmless.

_____________________________________________________________

82 State v. Hamilton, 827 P.2d 232, 240 (Utah 1992).

83 Id. (cleaned up).

84 State v. Knight, 734 P.2d 913, 920 (Utah 1987).

85Hamilton, 827 P.2d at 240 (cleaned up); see also State v. Fahina,

2017 UT App 111, ¶ 29, 400 P.3d 1177 (“When determining whether

an alleged error was harmful, we consider such factors as the

importance of the relevant testimony, whether the testimony was

cumulative, and the overall strength of the prosecution’s case.”).

86 Knight, 734 P.2d at 920.

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IV. Mr. Green Has Not Shown That His Trial Counsel

Was Ineffective

¶103 On appeal, Mr. Green argues that his counsel was

ineffective at trial in several ways: first, for consolidating the six

cases into one; second, for entering the Tribune Stipulation and

permitting it and the documentary exhibits (M.H.’s poem and C.D.’s

essay) to go into jury deliberations; third, for not objecting to the

hearsay statements that were admitted at trial; and fourth, for not

objecting to the State’s “improper invocation of race” throughout the

trial. 87 For the reasons discussed below, we hold that Mr. Green has

not shown that his trial counsel was constitutionally ineffective.

¶104 Strickland v. Washington 88 governs a claim for ineffective

assistance of counsel. Under Strickland, the test for assessing whether

an attorney’s performance amounts to ineffective assistance of

counsel has two parts: “(1) whether counsel’s performance was

deficient in that it fell below an objective standard of reasonableness;

and (2) whether counsel’s performance was prejudicial in that there

is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” 89 To

_____________________________________________________________

87 Mr. Green filed a rule 23B motion concurrently with his

opening brief on appeal. In that motion, he asks that we remand this

case for an entry of findings of fact, which Mr. Green asserts is

necessary for his claims of ineffective assistance of counsel. Mr.

Green argues that his counsel was ineffective for not calling four

additional character witnesses at trial and for not objecting to

allegedly harmful racial references made throughout the trial. He

includes with his motion an affidavit from a private investigator

who interviewed the four witnesses who did not testify. Having

reviewed Mr. Green’s motion and the record before us, we

determine that the motion does not establish facts that, if true, would

have likely changed the outcome here. First, due to the nature of

what the witnesses would have testified about (Mr. Green’s

character), it is unlikely their testimony would have been anything

other than cumulative—adding nothing substantial to the case.

Second, Mr. Green makes no new arguments in his motion about the

allegedly harmful racial references; he merely reiterates what he

argues on appeal. We therefore deny Mr. Green’s rule 23B motion.

88 466 U.S. 668 (1984).

89 Menzies v. Galetka, 2006 UT 81, ¶ 87, 150 P.3d 480 (cleaned up).

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Opinion of the Court

determine whether Mr. Green has met his substantial burden, we

must “eliminate the distorting effects of hindsight and evaluate the

conduct from counsel’s perspective at the time.” 90 And “[b]ecause

failure to establish either prong of the test is fatal to an ineffective

assistance of counsel claim, we are free to address [Mr. Green’s]

claims under either prong.” 91

¶105 The first prong “requires showing that counsel made errors

so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” 92 “But so long

as a rational basis for counsel’s performance can be articulated, we

will assume counsel acted competently.”93 Further, there is “a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance. In order to overcome this

presumption, the litigant must demonstrate that the challenged

actions cannot be considered sound strategy under the

circumstances.” 94 Thus, “[a]n ineffective assistance of counsel claim

will fail if a conceivable legitimate tactic or strategy can be surmised

from counsel’s actions.” 95

¶106 The second prong requires that Mr. Green demonstrate that

“any deficiencies in counsel’s performance were prejudicial to the

defense.” 96 “To do so, he must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the outcome.” 97

A. Defense Counsel Was Not Ineffective in Moving to Consolidate

the Cases

¶107 Mr. Green argues that counsel was ineffective in moving to

consolidate the six cases. He asserts that had each case been tried

_____________________________________________________________

90 See id. ¶ 89 (cleaned up).

91 See Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182 (cleaned up).

92 Strickland, 466 U.S. at 687.

93 State v. Mohamud, 2017 UT 23, ¶ 14, 395 P.3d 133 (cleaned up).

94 Menzies, 2006 UT 81, ¶ 89 (cleaned up).

95 State v. Moore, 2012 UT App 227, ¶ 6, 285 P.3d 809 (cleaned up).

96 Mohamud, 2017 UT 23, ¶ 14 (cleaned up).

97 Honie, 2014 UT 19, ¶ 33 (cleaned up).

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separately, he might have had a better chance of acquittal because he

could have focused on establishing reasonable doubt for one victim

at a time. But the “mere potential effect on the outcome is not

enough. Rather, the defendant must show a substantial likelihood of

a different result as a demonstrable reality and not merely as a

speculative matter.” 98 Ultimately, the right to effective assistance of

counsel “guarantees reasonable competence, not perfect advocacy

judged with the benefit of hindsight.” 99

¶108 Here, defense counsel requested that the cases be

consolidated, likely at the behest of Mr. Green. 100 And counsel may

have had logical reasons for doing so. 101 As the State pointed out,

counsel may have moved to consolidate in order to (1) attack each

woman’s credibility in more detail at trial; (2) protect Mr. Green

from the strain, embarrassment, anxiety, and expense of multiple

proceedings; (3) preserve the trust, confidence, and close working

relationship that defense counsel had with Mr. Green; or (4) increase

Mr. Green’s chances of avoiding a prison sentence by seeking a

complete acquittal of all his charges at once. We are persuaded by

the State’s rationale—some or all of these may have been legitimate

reasons for consolidation, especially where the district court had

already granted a pretrial motion that would allow all six women’s

allegations to be admitted at all six trials. Where “a rational basis for

counsel’s performance can be articulated, we will assume counsel

acted competently.” 102 As we have repeatedly stated, simply because

“a lawyer’s legitimate exercise of judgment in the choice of trial

strategy or tactics . . . [does] not produce the anticipated result,” does

_____________________________________________________________

98 State v. Nunes, 2020 UT App 145, ¶ 21, 476 P.3d 172 (cleaned

up).

99 See Yarborough v. Gentry, 540 U.S. 1, 8 (2003); see also Roe v.

Flores-Ortega, 528 U.S. 470, 481 (2000) (“The relevant question is not

whether counsel’s choices were strategic, but whether they were

reasonable.”).

100See Strickland, 466 U.S. at 691 (“Counsel’s actions are usually

based, quite properly, on informed strategic choices made by the

defendant and on information supplied by the defendant.”).

101See, e.g., State v. Prion, 2012 UT 15, ¶ 31, 274 P.3d 919 (noting

the desire to avoid the “personal strain, public embarrassment, and

expense” of multiple criminal trials (cleaned up)).

102 State v. King, 2010 UT App 396, ¶ 31, 248 P.3d 984 (cleaned up).

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Opinion of the Court

not mean that counsel was ineffective. 103 So Mr. Green’s assertion

that he might have had a better chance of winning one case at a time

is insufficient to demonstrate that counsel’s consolidation was

unreasonable under the circumstances. 104 Therefore, Mr. Green’s

argument fails under the first prong of the Strickland test.

B. Defense Counsel Was Not Ineffective in Agreeing to the Tribune

Stipulation or in Permitting the Documentary Exhibits to

Go into Jury Deliberations

¶109 Mr. Green argues that counsel was ineffective in agreeing to

the Tribune Stipulation and allowing it and the documentary

exhibits to accompany the jury into its deliberations. He asserts that

because the stipulation is hearsay, counsel should have objected to it

under rule 802 of the Utah Rules of Evidence. He also contends that

because the documentary exhibits “were effectively a transcript of

the women’s trial testimony,” they should not have been allowed to

accompany the jury into its deliberations. 105 But neither of these

arguments is persuasive. Like defense counsel’s decision to

consolidate the cases, here, “a conceivable legitimate tactic or

strategy can be surmised from counsel’s actions” 106 in agreeing to the

Tribune Stipulation. One of the prominent arguments in Mr. Green’s

defense was that the Tribune Articles influenced and even prompted

the victims’ allegations. So providing the jury with details of the

Tribune Articles may have been part of a legitimate strategy defense

counsel envisioned.

¶110 As to the documentary exhibits, neither M.H.’s poem, C.D.’s

essay, nor the Tribune Stipulation were transcripts—they were not

“deposition testimony,” “testimony given under oath,” or statements

made “at a prior proceeding.” 107 Instead, they were all “received as

_____________________________________________________________

103 State v. Buel, 700 P.2d 701, 703 (Utah 1985) (cleaned up).

104See, e.g., id. (“Defendant has failed to establish that defense

counsel’s strategy in consolidating the two charges for trial was

anything other than a ‘legitimate exercise of judgment.’”).

105 See Wyatt v. State, 2021 UT 32, ¶ 19 n.17, 493 P.3d (“The

transcripts of deposition testimony and of testimony given under

oath at a prior proceeding are not received as exhibits and do not go

back with the jury.”).

106 Moore, 2012 UT App 227, ¶ 6 (cleaned up).

107 Wyatt, 2021 UT 32, ¶19 n.17.

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exhibits.” 108 And because “the jury may take with [it] . . . all exhibits

which have been received as evidence,” 109 there was no reason for

defense counsel to object to their accompanying the jury into its

deliberations.

¶111 In other words, we are not convinced that allowing the

Tribune Stipulation into evidence or permitting the documentary

exhibits to go into jury deliberations 110 was objectively unreasonable.

So we cannot say the court abused its discretion in allowing them to

accompany the jury into its deliberations, and Mr. Green’s

arguments fail under the first prong of the Strickland test.

C. Defense Counsel Was Not Ineffective in Failing to Object to the Four

Hearsay Statements

¶112 Mr. Green argues that counsel was ineffective in failing to

object to the hearsay testimony presented at trial. As discussed

above, we have already concluded that the district court’s errors in

admitting the four inappropriate hearsay statements were harmless.

As such, we need not reach the question of whether defense counsel

acted deficiently for failing to object to their admission. 111 So Mr.

Green’s argument in this regard fails.

D. Defense Counsel Was Not Ineffective in Failing to Object to the Alleged

Improper Racial Theme

¶113 Mr. Green argues that counsel should have objected to the

State’s crafting of an impermissible racial theme at trial. He contends

that the State “elicited impermissible testimony about race and

painted a picture of the women and [Mr. Green] that invoked racial

stereotypes.” Mr. Green references three specific incidents to support

this assertion. But, for the reasons discussed below, we are not

persuaded by Mr. Green’s reasoning.

_____________________________________________________________

108 Id.

109 UTAH R. CRIM. P. 17.

110See Wyatt, 2021 UT 32, ¶ 19 (stating that Utah law “expressly

authorizes all exhibits to go back with the jury subject to the court’s

broad discretion”).

See Ross v. State, 2019 UT 48, ¶ 94 n.12, 448 P.3d 1203 (“Because

111

we conclude that [Petitioner] was not prejudiced by his trial

counsel’s failure . . . , we do not address the issue of whether his trial

counsel’s performance was deficient.” (cleaned up)).

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Opinion of the Court

¶114 First, M.H. testified that after Mr. Green raped her, he said,

“he really likes black girls because they are sassy, and if you try to

have sex with them, you can’t.” The record does not support Mr.

Green’s assertion that the State used this testimony to craft an

improper racial theme. According to the record, Mr. Green—not

M.H.—was the one who purportedly made the racial comment; M.H.

merely repeated it. The record also suggests that the State elicited

this and other statements through a series of questions aimed at

portraying Mr. Green as a manipulator, where the focus of the

inquiry was not on race but instead on M.H. having told Mr. Green

repeatedly that she did not want to have sex with him. And the State

never suggested that Mr. Green’s race was a factor the jury should

consider in its deliberations. So defense counsel was not ineffective

in declining to object to this testimony.

¶115 Second, A.P. testified that due to the stress and trauma

caused by the rape, she developed an auto-immune disorder, as well

as persistent heart, stomach, kidney, and brain issues. She further

testified that she is no longer able to live alone, avoids visiting USU,

abstains from traveling to the Logan or Brigham City areas, and has

a difficult time being “around black men at all” because when she

does, she has a “full-on panic attack.” Again, the record does not

support Mr. Green’s assertion that the State used this testimony to

craft an improper racial theme. Instead, the record indicates that the

State wanted the jury to know that A.P. had developed PTSD and

had suffered physically, mentally, and emotionally because of the

rape. So defense counsel was not ineffective in declining to object to

these statements.

¶116 Third, at trial, the State used adjectives such as “young,”

“naïve,” and “innocent” to describe the six women. And in its

opening and closing arguments, the State described Mr. Green as a

“big, old, fast linebacker” (once in opening argument), a “wolf in

sheep’s clothing” (once in opening argument and once in closing

argument), and someone who took women “back to his lair” (twice

in closing argument). But nothing in the record before us indicates

that the first reference—that Mr. Green was “a big, old, fast

linebacker”—had anything to do with Mr. Green’s race. And the

references Mr. Green describes as being “animalistic”—that Mr.

Green was a “wolf in sheep’s clothing” and had a “lair”—were

limited in number and occurred almost exclusively in the State’s

closing argument. In other words, these stray references never

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developed into any clear racial theme. So it was not unreasonable for

defense counsel to choose not to object to them, particularly where

doing so might not have been worthwhile in a tactical sense.112

Therefore, the record before us indicates that defense counsel was

not ineffective in declining to object to these comments. Accordingly,

we decline to overturn the jury’s verdict.

V. Mr. Green Has Not Established Cumulative Error

¶117 Mr. Green contends that the cumulative error doctrine

requires reversal due to the aggregated prejudicial effects of the

errors alleged. Under that doctrine, a reviewing court will reverse a

jury verdict

only if the cumulative effect of the several errors

undermines confidence that a fair trial was had. If,

however, we determine that a defendant’s claims do

not constitute errors on the part of the trial court, then

it follows that the requirements of the cumulative error

doctrine are not met. 113

Here, we have concluded that the district court’s only errors—

admitting the four hearsay statements—were harmless.

Additionally, we have determined that counsel was not ineffective.

Accordingly, there are not multiple errors to cumulate, and Mr.

Green’s cumulative error claim necessarily fails. 114

Conclusion

¶118 Because the doctrine of chances has proven to be difficult to

understand and apply, we abandon it in favor of a plain-text

application of the Utah Rules of Evidence. Under the rules of

evidence, the district court in Mr. Green’s case did not abuse its

discretion in admitting the other-acts evidence.

_____________________________________________________________

112See Steven Lubet, Objecting, 16 AM. J. TRIAL ADVOC. 213, 219–20

(1992) (“[C]ounsel must evaluate the tactical situation in order to

determine whether the objection is worth making.”).

113 State v. Killpack, 2008 UT 49, ¶ 56, 191 P.3d 17 (cleaned up).

114 See State v. Glasscock, 2014 UT App 221, ¶ 34, 336 P.3d 46

(“Having found no error, [Petitioner’s] cumulative error claim

fails.”).

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¶119 Four of the out-of-court statements challenged by Mr. Green

fall outside the hearsay exceptions and exemptions of our rules of

evidence. But because the evidence was overwhelming, and the four

inadmissible statements were merely cumulative, the district court

did not abuse its discretion in admitting them. Mr. Green’s

ineffective assistance of counsel and cumulative error claims also

fail.

¶120 We affirm Mr. Green’s convictions.

40