# State v. Thornton

> Utah Supreme Court · February 21, 2017 · 833 Utah Adv. Rep. 42

URL: https://www.frixlaw.com/law-library/cases/9872479

## Case

- **Full name:** STATE of Utah, Appellant, v. Robert Damien THORNTON, Appellee
- **Court:** Utah Supreme Court
- **Decided:** February 21, 2017
- **Citations:** 833 Utah Adv. Rep. 42; 391 P.3d 1016; 2017 UT 9; 2017 Utah LEXIS 9; 2017 WL 695447
- **Precedential status:** Published
- **Opinion:** Concurrence by Durham
- **Judges:** Bean, Durham, Durrant, Having, Joseph, Lee, Part III, Pearce
- **Cited by:** 82 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by State v. Green, 532 P.3d 930 (2023).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9872479

## How later opinions describe it (automated extraction)

- explaining that if "past misconduct evidence is offered for any other purpose-other than to suggest action in conformity with the bad character suggested by his prior bad acts-such evidence is admissible, so long as it satisfies rules 402 and 403" of the Utah Rules of Evidence…
- stating that rule 404(b) “recognizes the dangers of exposing a jury to evidence of a defendant’s acts of prior misconduct—specifically, the risk that the jury will infer that the defendant has a reprehensible character [and] that he probably acted in conformity with it” (quota…
- stating that “[t]he threshold 404(b) question is whether the evidence has a plausible, avowed purpose beyond the propensity purpose that the rule deems improper,” and that “[i]f it does then the evidence is presumptively admissible (subject to rule 402 and 403 analysis)”
- stating that other-acts evidence is “presumptively admissible (subject to rule 402 and 403 analysis)” if there is an “avowed purpose beyond the propensity purpose” for admission of the evidence
- noting that generally appellate courts “ask only whether the trial court committed a reversible error in resolving a question presented for its determination” rather than “review[ing] the trial record in a search for an idealized paradigm of justice”

## Opinion text

Justice Durham,
concurring separately:
¶85 I concur in the result, and in all parts of the majority opinion except the analysis under rule 412 of the Utah Rules of Evidence contained in Part III.B. I do not disagree with the opinion’s explanation of the content and standards for review of evidentiary concerns implicating the Sixth Amendment. I do disagree with the trial court’s and the majority’s assessment of the evidence in this case. The trial court, as the majority notes, concluded that the defendant could “make the same allegations [that the victim’s testimony about sexual details was the result of her relationship with a boyfriend and not the *1031 defendant’s attacks] with different evidence.’ Supra ¶80.
¶86 The “different evidence” in question, according to the majority, is “principally the evidence of [the victim’s] experience with the sexual activity and prostitution taking place in her household.” Supra ¶81. But the type of testimony at issue here bears no logical nexus to second-hand exposure to sexual activity or prostitution. It contained explicit, personal descriptions of physical sensations, pain, and cloudy substance in her urine. There is no likelihood, in my view, that any of that testimony came from observations of, or conversations about, the consensual adult sexual activities going on in the household. It is also unfortunate that the prosecutor referred to the victim on several occasions in connection with this issue as a “child,” in an apparent effort to emphasize her sexual inexperience. Thus, I think the defense met the threshold for creating a Sixth Amendment claim, and that the court of appeals erred in affirming the trial court’s conclusion that the other evidence of sources for the victim’s sexual knowledge were adequate to meet that claim.
¶87 That being said, however, I agree with the majority opinion that the defense entirely failed to show “that the operative rule of evidence ‘significantly undermined fundamental elements of the defendant’s defense.’ ” Supra ¶77 (citation omitted). In failing to ask for an in camera proceeding and in failing to create a record permitting comparison of the rule 412 evidence and the other evidence anticipated at trial, the defendant leaves us only with his speculation that the victim’s sexual experiences with another child would shed any light on the content and veracity of her testimony. We have only unconfirmed assertions about the nature of that experience, and it was up to the defendant to rectify that situation. Thus I conclude that in light of the trial court’s concerns about the harm to the victim in the admission of the testimony, it was not a violation of defendant’s rights and was within the court’s discretion to exclude it.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9872479. Public record. Not legal advice.