author: HAGEN, Judge:

text:
    STATE of Utah, Appellee, v. Howard Wayne HOOD, Appellant.
    No. 20160610-CA
    Court of Appeals of Utah.
    Filed December 20, 2018
    Opinion
   HAGEN, Judge:

¶ 1 Howard Wayne Hood appeals his convictions for rape and forcible sodomy. Before trial, Hood sought to exclude evidence that he had been excommunicated from The Church of Jesus Christ of Latter-day Saints, arguing that the evidence was inadmissible "other act" evidence under rule 404(b) of the Utah Rules of Evidence. The district court admitted the evidence to explain the context of Hood's relationship with the alleged victim. We conclude that this was a proper, non-propensity purpose and that the evidence was relevant to assessing the victim's credibility on the question of consent. But because we also conclude that the danger of unfair prejudice substantially outweighed the probative value of the evidence and that its admission was harmful, we vacate Hood's convictions and remand for a new trial.

BACKGROUND

Relationship Between Hood and W.B.

¶ 2 Hood met the alleged victim, W.B., on a dating website in March 2013. W.B. was a member of The Church of Jesus Christ of Latter-day Saints and assumed that Hood was as well because his profile picture showed a photograph of the church's founder in the background. According to W.B., on their first date, Hood told her he had not gone to church for some time but had attended that same day and wanted to resume his involvement in the church. He said he was grateful to meet someone like her who was a member so that she could help him come back into "full fellowship" with the church. At trial, W.B. explained that "full fellowship" means taking steps to "live the teachings of the gospel" and being able to "take the sacrament" and "receive further blessings." At some point, Hood disclosed to W.B. that he had been excommunicated from the church.

¶ 3 Over the next several months, Hood and W.B. continued dating, but their relationship was volatile and involved a series of breakups and reconciliations. W.B. acknowledged that the couple had engaged in various acts of sexual intimacy short of intercourse during their relationship. She testified that although such physical intimacy before marriage conflicted with her religious beliefs, Hood manipulated her into submitting to these acts.

¶ 4 W.B. also testified that she told Hood she would not engage in premarital sexual intercourse because church doctrine forbade it. Despite knowing her opposition, Hood once pushed her against the kitchen wall and penetrated her vaginally and anally with his penis while saying, "Isn't this a fun game we're playing?" According to W.B., she told Hood, "No, ... this isn't fun." After this incident, she met with her ecclesiastical leader, the bishop, and confessed that she "had allowed" the act even though she did not want it to happen. She testified that the bishop counseled her to refrain from participating in the sacrament for three weeks.

¶ 5 At trial, Hood painted a different picture of the couple's relationship. He testified that W.B. was eager to engage in sexual activity, including oral sex and intercourse, and "never talked to [him] about not wanting to have sex because she was taking her religion seriously." Hood testified that he and W.B. talked little about religion and that the topic was not central to their relationship. According to Hood, they had a sexual relationship for months before he told W.B. that he was trying to return to the church after having been excommunicated.

Charged Conduct

¶ 6 On October 19, 2013, W.B. left Hood's apartment after an argument, inadvertently leaving her checkbook there. That night, Hood sent her a text that she had forgotten her checkbook, and W.B. responded, asking if she could retrieve it the next day. Because of the argument, she suggested he hand her the checkbook at the door if he did not want her to come into the apartment. But when she arrived the next day, Hood hugged her and told her he was sorry for what had happened. W.B. testified she felt ill that morning and told Hood that she was "really tired." He led her into his bedroom and suggested she take a nap.

¶ 7 W.B. testified that, after she fell asleep, Hood entered the room, removed her pants, and performed oral sex on her. When she woke, Hood held her down and ignored her pleas to stop. According to W.B., she was sobbing when Hood put on a condom. She begged, "No, Howard, no," then froze in "complete and utter shock" while he raped her.

¶ 8 In contrast, Hood testified that W.B. initiated the encounter by suggesting they take a nap together. According to Hood, they began "making out" in the bedroom and he performed oral sex on W.B. only after she asked him to give her an orgasm. Hood testified that, after the oral sex, he retrieved condoms from his car before returning to the bedroom to have intercourse with her.

Motion to Exclude Under Rule 404(b)

¶ 9 The State charged Hood with one count of rape and one count of forcible sodomy. At trial, Hood voiced concern over whether the State intended to elicit testimony regarding his excommunication from the church. Hood acknowledged that although it may be permissible to explain that he was not a church member, it was a 404(b) issue "to say he's been excommunicated in the past." The district court initially agreed that there was "no reason" for such evidence. The State objected, arguing that Hood's excommunication was a central component of his relationship with W.B. The State explained that W.B. would testify that "Hood made it very clear that he was excommunicated, but that he wanted to come back to the church and that ... plea for help, spiritually speaking, was one of her reasons for staying in contact with him." The State posited that Hood's excommunication and his professed desire to return to the church were "very probative of why [W.B.] maintain[ed] contact with this person who [was] making ... repeated [sexual] overtures."

¶ 10 Hood conceded that W.B. could testify that he "left the church, ... he wasn't a member, he's trying to come back to the church," but he objected to the admission of evidence that he had been excommunicated.

The district court questioned whether it was possible to "shape or mold [W.B.'s] testimony beyond what the facts actually are" to avoid mentioning the excommunication. It noted that Hood's status in the church was "a fairly central part of the ongoing relationship between these parties" and ruled that it would allow Hood's statements to W.B. regarding his excommunication.

Use of Excommunication Evidence at Trial

¶ 11 At trial, the State presented evidence that Hood had been excommunicated from the church but never disclosed what Hood did to merit that sanction. In its opening statement, the State referred to Hood's professed desire to "get back [to being] active in the church" and his pleas for W.B. to help him do so as the method he used to manipulate W.B. into forgiving him and staying in the relationship. The prosecutor did not use the term "excommunication" or otherwise refer to official church discipline.

¶ 12 During trial, however, the State elicited testimony about Hood's excommunication from three witnesses. First, W.B. testified that Hood told her he had been excommunicated. Because he had lost his membership in the church, Hood told her that he needed to "retake the discussions" with the church missionaries and then "be found worthy to be rebaptized to be able to have the blessings of the gospel in his life."

¶ 13 Second, during cross-examination, Hood confirmed that he told W.B. of his excommunication. In a subsequent line of questioning, the State reiterated that Hood had been "officially excommunicated from the church."

¶ 14 Third, the State offered testimony from Hood's ex-wife about his excommunication. She testified that, soon after they met, Hood told her he "was trying to get in good standing with the church because he had been excommunicated." She explained that "there's certain things that if you do them, like morality, different things like that, then you have to go and confess to your bishop or stake president or whatnot, and then ... they hold a council, and if they find that you're lacking, they can excommunicate you." Hood's ex-wife testified that obeying the "law of chastity" was important to maintaining good standing in the church.

¶ 15 In its closing argument, the State directly referred to Hood's excommunication. The prosecutor argued that Hood's professed "interest in rekindling the flame of faith" explained why the "naïve" and "religious" W.B. continued to forgive and wanted to "believe that he will be better."

¶ 16 The jury convicted Hood of rape and forcible sodomy. He appeals those convictions.

ISSUE AND STANDARD OF REVIEW

¶ 17 Hood argues that the district court erred by allowing the State to elicit testimony about Hood's "prior conviction for an unknown transgression in an ... ecclesiastical court." A district court's decision to admit other-act evidence under rule 404(b) is reviewed for abuse of discretion. See State v. Thornton , 2017 UT 9, ¶ 56, 391 P.3d 1016. Under this "deferential standard of review," the question before the appellate court "is not whether we would have admitted [the] evidence. It is whether the district judge abused his broad discretion in doing so." Id.

¶ 18 Hood raised three additional issues on appeal, but because his first claim of error requires us to vacate his convictions and remand for a new trial, it is unnecessary for us to reach the remaining issues. See State v. Moore , 2009 UT App 386, 223 P.3d 1137.

ANALYSIS

¶ 19 At trial, Hood argued that evidence regarding his excommunication was inadmissible under rule 404(b) of the Utah Rules of Evidence. Under that rule, "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in conformity with the character." Utah R. Evid. 404(b)(1). However, such evidence "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Id. R. 404(b)(2). In other words, evidence "is not admissible to prove that a defendant has a propensity for bad behavior and has acted in conformity with his dubious character," but may be admissible "if it is offered for a proper, noncharacter purpose." State v. Burke , 2011 UT App 168, ¶ 29, 256 P.3d 1102.

¶ 20 As our supreme court has recognized, the difficulty in applying rule 404(b)"springs from the fact that evidence of prior bad acts often will yield dual inferences-and thus betray both a permissible purpose and an improper one." State 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. On one hand, exposing the jury to evidence of a defendant's acts of misconduct may lead to an impermissible inference "that the defendant has a reprehensible character, that he probably acted in conformity with it, and that he should be punished for his immoral character in any event." Id. ¶ 29. "On the other hand, the rule also recognizes that acts of prior misconduct may also sustain an alternative-and entirely permissible-inference." Thornton , 2017 UT 9, ¶ 36, 391 P.3d 1016. When offered for a non-propensity purpose, "such evidence is admissible so long as it satisfies rules 402 and 403." Id. (quotation simplified).

I. Applicability of Rule 404(b)

¶ 21 Before analyzing whether these requirements were met, we first address the State's alternative argument that the evidence at issue is not subject to rule 404(b). The State contends that evidence of Hood's excommunication does not fall within rule 404(b) for three reasons: (1) excommunication is not "a crime, wrong, or other act," (2) Hood's statements about his excommunication were not offered to prove that they were true but only that they had been made, and (3) telling W.B. that he had been excommunicated was intrinsic to the crimes with which he was charged and not subject to rule 404(b). Although none of these arguments were made to the district court, an appellate court may affirm "on any legal ground or theory apparent on the record," even if such ground or theory "was not raised in the lower court, and was not considered or passed on by the lower court." Goodsel v. Department of Bus. Regulation , 523 P.2d 1230, 1232 (Utah 1974) (quotation simplified). But, for the reasons set forth below, we do not find these alternative arguments persuasive.

A. Other Act Evidence

¶ 22 First, the State claims that excommunication does not fall within rule 404(b) because it "represents a person's standing in the [church], not an act performed by the defendant." We agree with the State that a person's status as an excommunicated member of the church does not necessarily imply the commission of a bad act. But in the unique context of this case, evidence of excommunication strongly implied that Hood had committed an act relevant to his propensity to commit the crimes for which he was on trial.

¶ 23 According to an official church publication cited by both parties, a disciplinary council "must be held in cases of murder, incest, or apostasy," "when a prominent Church leader commits a serious transgression, when the transgressor is a predator who may be a threat to other persons, when the person shows a pattern of repeated serious transgressions, when a serious transgression is widely known, and when the transgressor is guilty of serious deceptive practices and false representations or other terms of fraud or dishonesty in business transactions." Elder M. Russell Ballard, A Chance to Start Over , Ensign (September 1990), www.lds.org/ensign/1990/09/a-chance-to-start-over-church-disciplinary-councils-and-the-restoration-of-blessings?lang=eng [https://perma.cc/GVL7-8PWE]. Disciplinary councils may also be convened "following serious transgression such as abortion, transsexual operation, attempted murder, rape, forcible sexual abuse, intentionally inflicting serious physical injuries on others, adultery, fornication, homosexual relations, child abuse (sexual or physical), spouse abuse, deliberate abandonment of family responsibilities, robbery, burglary, embezzlement, theft, sale of illegal drugs, fraud, perjury, or false swearing."Id.

¶ 24 The State correctly points out that "excommunication may result from other acts which, to many or most people, do not reflect poorly on a person's character." For instance, excommunication based on theological disagreements, or "apostasy," would not imply the commission of "a crime, wrong, or other act" within the meaning of rule 404(b). But the vast majority of "transgressions" that lead to excommunication in the church are "serious criminal offenses," including sexual abuse. See Church Discipline , The Church of Jesus Christ of Latter-day Saints Newsroom, www.mormonnewsroom.org/article/church-discipline [https://perma.cc/J8XZ-WW84]. Here, the jury was left to speculate about the "transgression" Hood had committed. And the only evidence presented suggested that the act resulting in Hood's excommunication was similar in kind to the charged conduct.

¶ 25 Hood was on trial for rape and forcible sodomy. The only testimony regarding potential reasons for excommunication referred to "morality," and was given by his ex-wife who also testified that Hood had raped her three years earlier. Testimony that Hood was actively seeking to rejoin the church also dispelled any suggestion that his excommunication was based on theological disagreements with church doctrine. To a Utah jury likely to be familiar with the type of conduct that would trigger church discipline, the implication was that Hood had been excommunicated for an act similar in kind to the sexual abuse alleged by both his ex-wife and W.B. Where the evidence strongly implies that the defendant committed a "bad act," the proponent of that evidence cannot avoid the application of rule 404(b) by stopping short of identifying the act.

¶ 26 For example, evidence that a defendant was fired from his last job might not suggest that he committed a bad act, given the various reasons why an employee might be terminated. But if that employee were on trial for sexually harassing a co-worker and the jury is told multiple times that he was fired from his prior job and the only evidence presented regarding grounds for termination is "inappropriate behavior" in the workplace and the witness who provides that evidence has accused defendant of sexual harassment in the past, evidence that the defendant was fired strongly suggests that the termination resulted from similar conduct. Indeed, the likely (and perhaps only) inference a jury will draw is that the defendant committed a prior act that bears on his propensity to engage in the type of conduct for which he is on trial.

¶ 27 In other contexts, we have held that a person's status can imply the commission of other acts, even when the State does not introduce evidence of the acts themselves.

For instance, we have applied rule 404(b) to evidence of a defendant's parole status, even when the State introduces no evidence of the prior crime. See State v. Fairchild , 2016 UT App 205, ¶ 18, 385 P.3d 696 ; State v. Dominguez , 2003 UT App 158, ¶¶ 16, 21, 72 P.3d 127. Similarly, we have held that rule 404(b) applies to gang membership where that affiliation implicates the defendant in unlawful gang activity. See State v. Gonzalez , 2015 UT 10, ¶ 38, 345 P.3d 1168 ; see also State v. High , 2012 UT App 180, ¶ 19, 282 P.3d 1046 (noting that "a number of jurisdictions that have considered the matter have concluded that membership in a gang does constitute evidence of other crimes, wrongs, or acts governed by rule 404(b)"). Other courts have similarly applied rule 404(b) to evidence of a defendant's status as a probationer or registered sex offender, even though the underlying crime that resulted in that status was not disclosed. See, e.g. , State v. Derbyshire , 2009 MT 27, ¶ 23-24, 349 Mont. 114, 201 P.3d 811 (applying rule 404(b) to evidence of defendant's status as a probationer); State v. Terrovona , 105 Wash.2d 632, 716 P.2d 295, 304-05 (1986) (en banc) (same); Coppock v. State , No. 05-13-00907-CR, 2015 WL 1811871, at *5 (Tex. Ct. App. April 20, 2015) (applying rule 404(b) to evidence of defendant's sex offender status). The State cannot avoid rule 404(b) by simply not identifying the underlying act that resulted in that status.

¶ 28 In the cases cited above, the defendant's status necessarily implies a criminal conviction. But rule 404(b) is not limited to other "crimes," but instead applies more generally to "wrongs" and "other acts" that "may bear adversely on the jury's judgment of the character of a person." 29 Am. Jur. 2d Evidence § 413 (2018). For example, other courts have treated disciplinary proceedings or resulting sanctions as subject to rule 404(b). See, e.g. , United States v. Vogel , 132 F. App'x 119, 120 (9th Cir. 2005) (defendant's disbarment from legal practice); United States v. Sandow , 78 F.3d 388, 390-91 (8th Cir. 1996) (suspension of defendant's agent/broker license); United States v. Cunningham , 103 F.3d 553, 556-77 (7th Cir. 1996) (suspension of defendant's nursing license); United States v. Fox , 69 F.3d 15, 19 (5th Cir. 1995) (disciplinary action and suspension of defendant's real estate license). Even when the reasons for disciplinary action are not revealed, such evidence implies not only that the defendant allegedly engaged in some type of misconduct, but that a disciplinary body found those allegations to be substantiated and worthy of censure.

¶ 29 Evidence that the church initiated disciplinary proceedings against Hood and that the disciplinary body concluded that excommunication, the church's most severe sanction, was warranted similarly suggests that Hood engaged in misconduct that reflects poorly on his character. To be clear, we do not suggest that excommunication would always qualify as "other act" evidence subject to rule 404(b). In other contexts, ecclesiastical censure may carry no implication that the defendant committed an act that reflects adversely on his character, such as where the evidence suggests that the censure resulted from theological differences. But, under the unique circumstances of this case, the evidence of Hood's excommunication strongly implied that Hood had committed "a crime, wrong, or other act" within the meaning of rule 404(b).

B. Truth of the Matter Asserted

¶ 30 Second, the State argues that Hood's statements regarding his excommunication were not offered to prove the truth of the matter asserted, but were "instead 'offered simply to prove that they were made by the defendant.' " (Quoting Oman v. Davis School Dist. , 2008 UT 70, ¶ 59, 194 P.3d 956.) Whether an out-of-court statement is admitted to establish the truth of the matter asserted is relevant to determining whether the evidence is hearsay. See Utah R. Evid. 801(c)(2) (" 'Hearsay' means a statement that ... a party offers in evidence to prove the truth of the matter asserted in the statement."). But Hood has not raised a hearsay objection. The hearsay rules and rule 404(b) are separate evidentiary hurdles. In other words, out-of-court statements admissible as non-hearsay may still be inadmissible under rule 404(b). See State v. Webster , 2001 UT App 238, ¶ 31 n.9, 32 P.3d 976 (recognizing that the defendant's statement was non-hearsay, but, as with all other evidence, "the statement [was] still subject to the requirements of Rule 404(b)"). The State's position may be relevant to whether the evidence was offered for a proper purpose, but the evidence is still subject to a 404(b) analysis.

C. Inextricably Intertwined

¶ 31 Third, the State argues that Hood's statements about his excommunication were intrinsic to the crime. Rule 404(b)"applies only to evidence that is extrinsic to the crime charged." See State v. Lucero , 2014 UT 15, ¶ 14 n.7, 328 P.3d 841 (quotation simplified), abrogated on other grounds by State v. Thornton , 2017 UT 9, 391 P.3d 1016. If the challenged evidence is "inextricably intertwined" with the crime charged, rule 404(b) does not apply. Id. (quotation simplified) "Rather, the act would be considered part of the case narrative and have important probative value that bears directly on the crime charged." Id.

¶ 32 Evidence of Hood's excommunication was not so "inextricably intertwined" with the charged crimes that it falls outside the scope of rule 404(b). Although Hood's excommunication and professed desire to return to the church may have provided the jury with insight into the couple's relationship, it was not an integral part of the charged conduct: rape and forcible sodomy. There is no evidence to suggest that Hood told W.B. that he had been excommunicated for the purpose of coercing or intimidating her into submitting to the charged conduct. See State v. Patten , 2018 VT 98, ¶ 10, --- Vt. ----, 197 A.3d 873 (affirming the district court's determination that defendant's statement to victim that he was a sex offender, made immediately before their first sexual contact, "was 'part and parcel' with the sexual contact" and "relevant to complainant's 'level of intimidation and cooperation/consent.' "). In describing the alleged rape and sodomy, W.B. never referred to Hood's excommunication or suggested that it facilitated or otherwise played a role in the commission of those offenses. At most, the evidence explained why W.B. maintained her troubled relationship with Hood and was present in his home during the alleged offense.

¶ 33 Establishing some minimal relevance to the State's narrative is insufficient to place other-act evidence beyond the reach of rule 404(b). If it were otherwise, application of rule 402 would be the first and last step of the analysis. Because evidence of Hood's excommunication was not so closely connected to the charged crimes to be intrinsic, rule 404(b) applies to this other-act evidence.

II. Application of Rule 404(b)

¶ 34 Having determined that rule 404(b) applies, we turn to whether admission of the evidence exceeded the district court's discretion. Evidence of a defendant's prior misconduct "must clear several evidentiary hurdles before admission- rules 404(b), 402, and 403." State v. Reece , 2015 UT 45, ¶ 57, 349 P.3d 712 (quotation simplified). "These requirements can be distilled into a three-part test: the prior bad-act evidence (1) must be offered for a genuine, noncharacter purpose, (2) must be relevant to that noncharacter purpose, and (3) the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice." Id. (quotation simplified).

¶ 35 Here, the district court did not conduct this three-part analysis on the record. Under prior case law requiring a "scrupulous examination" of rule 404(b) evidence, failure to do so would have been an independent basis for reversal. See State v. Lucero , 2014 UT 15, ¶ 37, 328 P.3d 841, abrogated by State v. Thornton , 2017 UT 9, 391 P.3d 1016. But the Utah Supreme Court recently repudiated the "scrupulous examination" standard. Thornton , 2017 UT 9, ¶ 3, 391 P.3d 1016. Rather than assessing the "scrupulousness" of the district court's analysis, we "simply assess whether the district judge made an error in admitting or excluding the evidence in question ." Id. ¶ 53. "Said another way, we no longer focus on the path the [district] court followed in reaching its conclusion, but review only the conclusion itself." State v. Von Niederhausern , 2018 UT App 149, ¶ 14, 427 P.3d 1277. Of course, a judge who engages in such a "scrupulous examination" of 404(b) evidence-"marching through the standards set forth in rules 404(b), 402, and 403, and presenting his analysis on the record"-"will be better-positioned to have his decision on admissibility of prior misconduct evidence affirmed on appeal." Thornton , 2017 UT 9, ¶ 54, 391 P.3d 1016.

¶ 36 Although we do not have the benefit of the district court's analysis on the record, we apply the three-part test below to determine whether the district court's ultimate decision to admit evidence of Hood's excommunication constituted an abuse of discretion. We conclude that the evidence clears the first two evidentiary hurdles, but not the third.

A. Non-Character Purpose Under Rule 404(b)

¶ 37 "The threshold 404(b) question is whether the evidence has a plausible, avowed purpose beyond the propensity purpose that the rule deems improper." State v. Thornton , 2017 UT 9, ¶ 58, 391 P.3d 1016 (emphasis omitted). If "the proper purpose put forward by the prosecution is addressed to an issue that is not actually disputed," and "the only real effect of the evidence is to suggest likely action in conformity with bad character," the avowed purpose "may be rejected as a pretext or ruse." Id. ¶ 59 (quotation simplified). "Short of that, however, the court's job under rule 404(b) is not to balance or weigh competing (proper and improper) inferences." Id.

¶ 38 At trial, the State argued that "it would be very difficult for [W.B.] to tell the story of their relationship" without discussing the excommunication because Hood's "plea for help, spiritually speaking, was one of her reasons for staying in contact with him." In overruling Hood's rule 404(b) objection, the court found that Hood's excommunication was "a fairly central part of the ongoing relationship of these parties."

¶ 39 Our supreme court has upheld the admission of rule 404(b) evidence presented for a similar purpose. In Thornton , the State presented "evidence of Thornton's involvement in [the victim's] mother's drug use and prostitution." Id. ¶ 57. The court concluded that the prior misconduct evidence "presented a narrative of relevance to the prosecution's case-to demonstrating Thornton's position of power in the home, to explaining why he had such easy access to [the victim], and to suggesting why [the victim] may have waited to come forward with accusations against Thornton." Id. Consequently, our supreme court held that "the district court acted within its discretion in crediting this proper purpose." Id.

¶ 40 Much like Thornton , the avowed purpose of the State's excommunication evidence was to explain the dynamics of the relationship between Hood and W.B. The State claimed that Hood's statements to W.B. about his excommunication and his desire to return to "full fellowship" in the church motivated W.B. to continue the relationship. According to the State, this explained why W.B. returned to Hood's apartment even though his sexual advances were unwelcome, providing him with the opportunity to commit the charged crimes. This narrative was essential to the State's theory of the case that Hood had taken advantage of a "religious" and "naïve" woman who was invested in his spiritual well-being. As the State points out, this narrative does not depend on whether Hood was truly excommunicated; rather, the proffered purpose for admitting evidence of Hood's alleged status as a repentant excommunicant was to show its effect on W.B.

¶ 41 At this stage in the analysis, we do not weigh the competing inferences that a jury might draw from this evidence. Because the State has offered this evidence for a proper, non-propensity purpose, it is presumptively admissible under rule 404(b).

B. Relevance Under Rule 402

¶ 42 "The second part of the analysis requires the court to determine whether the offered evidence meets the requirements of rule 402, which excludes all evidence that is not relevant." State v. Decorso , 1999 UT 57, ¶ 22, 993 P.2d 837, abrogated on other grounds by State v. Thornton , 2017 UT 9, 391 P.3d 1016. "Relevance is a low bar." Thornton , 2017 UT 9, ¶ 61, 391 P.3d 1016. Evidence is relevant if "it has any tendency to make a fact [of consequence in determining the action] more or less probable than it would be without the evidence." Utah R. Evid. 401(a). Under rule 402, relevant evidence is presumptively admissible. Id. R. 402.

¶ 43 According to the State, W.B.'s desire to help Hood return to the church explained how Hood "persuaded [her] to continue the relationship, and why she would keep seeing him when he persisted in his efforts to have a sexual relationship against her religious beliefs." Understanding the dynamics of the relationship would help the jury assess the respective credibility of Hood and W.B. and whether the alleged sexual acts occurred without her consent. These were the key issues at trial. Because there was no dispute that the sexual acts occurred, the jury was tasked only with determining whether those acts were consensual. And because there were no other witnesses, that determination turned on its assessment of Hood's and W.B.'s credibility. Accordingly, this evidence was relevant and thus presumptively admissible under rule 402.

C. Balancing Under Rule 403

¶ 44 The third step in assessing the admissibility of other-act evidence requires us "to look first, and primarily, to the language of rule 403." State v. Ring , 2018 UT 19, ¶ 23, 424 P.3d 845. Under that language, "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Utah R. Evid. 403. "The term 'unfair prejudice,' as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged." Old Chief v. United States , 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).

¶ 45 The balancing required by rule 403"is essential to preserve the integrity of rule 404(b)." State v. Verde , 2012 UT 60, ¶ 18, 296 P.3d 673, abrogated on other grounds by State v. Thornton , 2017 UT 9, 391 P.3d 1016. If the evidence admitted under rule 404(b) supports proper and improper inferences, "the court should balance the two against each other under rule 403, excluding the bad acts evidence if its tendency to sustain a proper inference is outweighed by its propensity for an improper inference or for jury confusion about its real purpose." Id.

¶ 46 To assess the risk of unfair prejudice, we first consider the types of impermissible inferences a jury could reasonably draw from the evidence. While the exact reasons for Hood's excommunication were not disclosed, his ex-wife testified that there are certain acts involving "morality" that can trigger a church disciplinary council and lead to excommunication. At the very least, this testimony suggested that Hood had previously been adjudicated guilty of some act deemed immoral by a church disciplinary council. And W.B.'s testimony that her "punishment" for premarital sex was counseling by her local bishop to refrain from taking the sacrament for three weeks further suggested that a much more egregious act of immorality would lead to formal disciplinary proceedings and excommunication, the church's harshest penalty.

¶ 47 The nature of the charges against Hood exacerbates the potential for prejudice. Disciplinary councils are convened when a member has engaged in "serious criminal offenses" or "sexual sin," including any type of "sexual abuse." See Church Discipline , The Church of Jesus Christ of Latter-day Saints Newsroom, www.mormonnewsroom.org/article/church-discipline [https://perma.cc/WS75-ERP8]. To a Utah jury serving as fact-finders in a rape and forcible sodomy trial, the evidence of Hood's prior excommunication could imply that he might have engaged in similar conduct in the past.

¶ 48 At a minimum, the evidence suggested that Hood was the type of person who would disregard church doctrine. This alleged character trait carried special significance in light of the State's theory at trial. To prove that the sexual acts were nonconsensual, the State relied heavily on W.B.'s religious convictions and Hood's alleged refusal to honor her commitment to the "law of chastity." Given this context, admission of the excommunication evidence created a significant risk that it would be considered for the improper purpose of showing that commission of the alleged crimes was in conformity with Hood's character.

¶ 49 With those impermissible character inferences in mind, we turn to whether the risk of unfair prejudice substantially outweighed the probative value of the evidence. In making this assessment, we are "free to consider any relevant factors when balancing the probative value of evidence against its risk for unfair prejudice." State v. Lowther , 2017 UT 34, ¶ 42, 398 P.3d 1032. Of particular relevance here is the State's "need for the evidence" and "efficacy of alternative proof." Id. ¶ 33 (quotation simplified).

¶ 50 In balancing the risk of unfair prejudice against the probative value of the evidence, it is appropriate to consider the availability of other, less prejudicial, means of proof. As the United States Supreme Court has recognized, "what counts as the Rule 403 'probative value' of an item of evidence, as distinct from its Rule 401 'relevance,' may be calculated by comparing evidentiary alternatives." Old Chief v. United States , 519 U.S. 172, 184, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). "If an evidentiary alternative has equal or greater probative value and poses a lower risk of unfair prejudice, the trial court should 'discount' the probative value of the disputed evidence and exclude it if the risk of unfair prejudice substantially outweighs its discounted probative value."See United States v. Becht , 267 F.3d 767, 773 (8th Cir. 2001).

¶ 51 Here, Hood informed the court that he had no objection to evidence that he was a former member seeking to rejoin the church. There is no "cognizable difference" between Hood's proposed evidence and the "legitimately probative component" of the excommunication evidence. Old Chief , 519 U.S. at 191, 117 S.Ct. 644. The legitimate probative value of the excommunication evidence went to enhancing the credibility of W.B.'s testimony that the sexual acts were nonconsensual by explaining that she maintained her relationship with Hood, despite their disparate views on premarital sex, because Hood had asked her to help him return to "full fellowship" with the church. Allowing Hood's proposed evidence that he was a former church member, while excluding testimony that his status resulted from excommunication, would leave no gaps in the natural sequence of events or otherwise diminish the "evidentiary depth" of the State's narrative. See id. at 189-90, 117 S.Ct. 644. Disclosing the excommunication itself added nothing to the legitimate probative value of the evidence. See State v. Verde , 2012 UT 60, ¶ 30, 296 P.3d 673 (holding that, although the state was free to reject a proposed stipulation, its rejection had "probative implications" and reinforced "the conclusion that the prosecution's purpose was not to tell a legitimate narrative to the jury but instead to present an improper one"), abrogated on other grounds by State v. Thornton , 2017 UT 9, 391 P.3d 1016. The only thing to be gained was an increased risk that the jury would draw impermissible inferences about Hood's character.

¶ 52 The State's avowed purpose for using the evidence would have been equally well served by admitting evidence of Hood's estrangement from and renewed interest in the church while still granting his 404(b) motion to exclude his excommunication. The additional probative value of the excommunication evidence, if any, was substantially outweighed by the danger of unfair prejudice. Given the facts of this case, the district court's decision to admit evidence of Hood's excommunication exceeded the bounds of reasonableness and constitutes an abuse of discretion.

III. Harmfulness

¶ 53 Finally, we consider whether this evidentiary error necessitates reversal. "Even if the admission of rule 404(b) evidence by the [district] court was in error, reversal on appeal is not appropriate unless [the defendant] demonstrates that the error materially affected the fairness or outcome of the trial." State v. Calvert , 2017 UT App 212, ¶ 38, 407 P.3d 1098 (quotation simplified). We will overturn a conviction based on the improper admission of evidence only if a "reasonable likelihood exists that the error affected the outcome of the proceedings." Id. (quotation simplified).

¶ 54 In determining whether the erroneous admission of other-act evidence was harmless, we often look to the strength of the evidence supporting the jury's verdict. See State v. Courtney , 2017 UT App 172, ¶ 22, 424 P.3d 198 ; State v. Ferguson , 2011 UT App 77, ¶ 19, 250 P.3d 89. But this is not a case where the evidence of guilt was overwhelming. As is typical with allegations of sexual abuse, the alleged perpetrator and victim were the only witnesses to the charged conduct. The verdict hinged entirely on the jury's assessment of their relative credibility. Since there was no dispute that the acts occurred, the jury was specifically charged with deciding whether to believe Hood's account that the acts were consensual or W.B.'s account that they were not. That was not an easy task, given the evidence that the couple had an ongoing romantic relationship and had engaged in at least some consensual sexual activity in the past. To aid the jury in its credibility assessment, the State made a concerted effort to contrast W.B.'s character-particularly, her religious character-with Hood's. As a result, Hood's excommunication took on particular significance at trial. His excommunication and what it implied about his moral character was central to the State's theory of the case.

¶ 55 When viewed in light of the entire record, the erroneous admission of other-act evidence was not inconsequential. The reference to Hood's excommunication was not isolated. Instead, the State elicited evidence about Hood's excommunication from three separate witnesses and referred to it again to support its narrative during closing argument. Moreover, references to church doctrine and, by implication, Hood and W.B.'s comparative morality, were pervasive throughout trial. For example, W.B. testified about her interaction with the church missionaries, discussions with her bishop, her attendance at church services, priesthood blessings, the "law of chastity" and other church teachings, the founding of the church and "restoration of the ... keys of the priesthood," and her religious convictions generally. In contrast, the State painted Hood as lacking any sincere religious convictions. At one point, the prosecutor even questioned whether Hood had made a "real attempt ... to hear the Gospel again, the Gospel of Jesus Christ, the Church of Jesus Christ of Latter-day Saints."

¶ 56 In short, we agree with Hood that "the entire trial devolved into an exploration of [his] perceived religious failings." The evidence suggested that W.B. was the type of person who would refuse consent based on her religious convictions and that Hood was the type of person who would disregard such objections. We are not suggesting that the State's strategy was necessarily improper, only that it exacerbated the potential prejudice from the improper admission of Hood's excommunication. In the context of this case, evidence that a disciplinary body had previously found Hood guilty of a sufficiently serious moral transgression that warranted expulsion from his faith may have suggested that he had an immoral character and the propensity to commit the crimes charged. In a case that turned on conflicting testimony regarding consent, there is a reasonable probability that such propensity evidence unfairly influenced the jury's verdict.

CONCLUSION

¶ 57 The probative value of Hood's excommunication was substantially outweighed by the risk of unfair prejudice. Because there is a reasonable probability the erroneous admission of this evidence affected the outcome of the trial, we vacate his convictions and remand for a new trial.

CHRISTIANSEN FORSTER, Judge (concurring in part and concurring in result):

¶ 58 I concur in Part II.C and Part III of the majority opinion and concur in the result reached in this case. While I disagree that the evidence of Hood's excommunication constitutes "other act" evidence pursuant to rule 404(b) of the Utah Rules of Evidence, I agree with the majority that there is a reasonable probability that the introduction of the excommunication evidence prejudiced Hood.

      "The sacrament is the formal blessing and administering of bread and water representing the body and blood of Christ to Church members," which is "the equivalent of communion in many other Christian churches." Sacrament , The Church of Jesus Christ of Latter-day Saints Newsroom, www.mormonnewsroom.org/article/sacrament [https://perma.cc/L7FL-3875].

      In the Church of Jesus Christ of Latter-day Saints, excommunication, or loss of church membership, is the "most serious sanction the disciplinary council may prescribe." Church Discipline , The Church of Jesus Christ of Latter-day Saints Newsroom, www.mormonnewsroom.org/article/church-discipline [https://perma.cc/J8XZ-WW84]. Importantly, church discipline is not reserved solely for "apostasy," or public opposition to church doctrine. Id. "Church discipline may be required for someone guilty of serious criminal offenses." Id. In particular, the church expresses "zero tolerance for abuse of any kind, including child abuse, spousal abuse, sexual abuse or child pornography, and anyone engaged in these practices would rightly face both criminal prosecution and Church discipline." Id. Other "serious personal sin, including abortion or sexual sin, may require disciplinary action as part of the repentance process," but excommunication is considered "a course of last resort and is only taken when less serious disciplinary measures are insufficient." Id.

      Before trial, the State filed a notice of its intent to offer evidence under rule 404(b) of the Utah Rules of Evidence, but it did not include the evidence of Hood's excommunication. Given its arguments on appeal, the State presumably concluded that such evidence fell outside the scope of rule 404(b). Hood did not ask the district court to exclude the excommunication evidence based on lack of notice, nor has he raised that issue on appeal. See Utah R. Evid. 404(b)(2) (requiring reasonable notice of other act evidence that the prosecutor intends to offer at trial).

      "We recognize that we may address issues raised on appeal that are likely to arise again upon remand." State v. Moore , 2009 UT App 386, 223 P.3d 1137 ; see also State v. Ogden , 2018 UT 8, ¶ 49, 416 P.3d 1132 ("Although it is unnecessary to our decision, we retain the authority to reach issues when we believe our analysis could prove helpful on remand.") Although Hood has raised an additional rule 404(b) challenge that is likely to arise again on remand, we decline to reach that issue. The district court admitted testimony from Hood's ex-wife that Hood "at least once had sex with her while she was asleep, despite her verbal protests upon waking." The district court rejected the State's argument that this testimony was admissible based on the "doctrine of chances," but it did admit the evidence to prove Hood's intent and the victim's lack of consent. On appeal, the State asked us to affirm the admission of the ex-wife's testimony based on the doctrine of chances even though the district court expressly rejected that theory. The State contends that "the doctrine-of-chances rationale for proving lack of consent is not an alternative theory at all, because the cases holding that prior acts are admissible to prove lack of consent are, in fact, grounded in the doctrine of chances." In support of its position, the State relies on Utah Supreme Court decisions issued after the district court's ruling in this case. See generally State v. Lopez , 2018 UT 5, ¶¶ 48-64, 417 P.3d 116 ; State v. Lowther , 2017 UT 34, ¶¶ 24-27, 398 P.3d 1032. By not reaching this issue, we leave the district court free on remand to reconsider the admissibility of this evidence in light of recent case law. See Blackmore v. L & D Dev. Inc ., 2016 UT App 198, ¶ 30, 382 P.3d 655 (noting that "on remand from an appeal, the district court retains discretion to decide whether to reconsider any issue which was not expressly or impliedly disposed of on appeal" (quotation simplified) ).

      A majority of Utahns are members of The Church of Jesus Christ of Latter-day Saints. See Pew Research Center, Religious Landscape Study , http://www.pewforum.org/religious-landscape-study/state/utah/ [https://perma.cc/W9L3-R2ZK].

      The phrase "other acts" in rule 404(b) could arguably include "any conduct, good or bad, that tends to reflect on the person's character." See Charles Alan Wright & Arthur R. Miller, 22B Federal Practice & Procedure Evidence § 5245 (2d ed. 1987). Alternatively, "other acts" can be "read along with the first two categories so it only covers conduct that resembles crimes or wrongs." Id. Because an act that results in excommunication is most often similar in nature to a "crime" or "wrong," which includes the "violation of religious and ethical norms," id. , we do not reach the question of whether "other acts" might also include specific incidents of behavior that bear on the defendant's character but do not amount to misconduct.

      Although the State claims that it "did not suggest that [Hood's] statements about his excommunication were true," it assumed the truth of Hood's status in the church during his cross-examination, when it prefaced a question by stating that Hood had been "officially excommunicated from the church."

      In rejecting this alternative proposal, the district court questioned whether it would be possible to "shape or mold [W.B.'s] testimony beyond what the facts actually are." As with all pre-trial rulings, the parties would have complied by instructing their witnesses to avoid the prohibited topic and by carefully tailoring their examination questions or seeking permission to proceed by leading questions, if necessary.


source: Caselaw Access Project

author: ORME, Judge:

license: Public Domain

text:
    STATE of Utah, Appellee, v. Jason Reed AKERS, Appellant.
    No. 20170713-CA
    Court of Appeals of Utah.
    Filed December 20, 2018
    Leah Jordana Aston, Orem and Dallas B. Young, Attorneys for Appellant
    Sean D. Reyes, Salt Lake City and Jonathan S. Bauer, Attorneys for Appellee
    Judge Gregory K. Orme authored this Opinion, in which Judges Kate Appleby and Ryan M. Harris concurred.
    Opinion

      Judge Kate A. Toomey has resumed the use of her birth name and is now known as Judge Kate Appleby.

   ORME, Judge:

¶ 1 Defendant Jason Reed Akers appeals his sentences, arguing that the district court abused its discretion by relying on allegedly irrelevant and unreliable information contained in his presentence investigation report (the PSIR) when it imposed sentence. Alternately, Akers contends that his defense counsel rendered ineffective assistance by failing to object to the challenged information in the PSIR prior to sentencing. We affirm.

BACKGROUND

¶ 2 In April 2017, 38-year-old California resident Jason Reed Akers used a social media platform to "message" a teenager. The profile he reached out to indicated that it belonged to a 13-year-old girl who resided in Utah, but in reality it belonged to an undercover Special Agent with Homeland Security Investigations. Akers told the girl that he would be in Utah in two days and wanted to meet her. She quickly asked whether he was "cool" with her only being 13 years old. He answered, "Leave age out of this. Nobody should know, right?," and shortly thereafter he asked if she was a virgin. After she confirmed that she was, he told her that he wished to "take" her virginity and named the sexual acts he wanted the two of them to perform. Akers twice unsuccessfully requested that the girl send him pictures of her genitals, but her refusal did not prevent him from sending her a pornographic video and two photographs depicting a penis.

¶ 3 Akers and the girl arranged to meet at a park in Utah County. At the girl's request, Akers agreed to bring condoms, lubricant, an energy drink, and cookies. Akers also asked the girl whether she drank or smoked, to which she replied that she never had but would "be curious." Akers then told her that he would bring "special gummy worms, ... THC special."

¶ 4 Authorities arrested Akers as he waited for the girl at the arranged meeting place. Officers found a pipe containing methamphetamine in his vehicle, in plain view, and Akers subsequently admitted to smoking the drug during his drive from California to Utah. A more thorough search of the vehicle also produced lubricant, THC gummy worms, and a handgun. During interrogation, Akers admitted sending the messages and pornographic images to the girl and possessing the pipe and illegal substances found in his vehicle.

¶ 5 The State charged Akers with six felony and three misdemeanor counts. Akers and the State entered into a plea agreement in which Akers agreed to plead guilty to three of the nine charges. He pled guilty to one count of enticing a minor, a second degree felony; one count of dealing in materials harmful to a minor, a third degree felony; and one count of possession of a firearm by a restricted person, a third degree felony. In exchange, the State agreed to drop the remaining six charges, including a charge for possession of the THC gummy worms.

¶ 6 Prior to sentencing, Adult Probation and Parole prepared the PSIR. It recited the circumstances surrounding Akers's arrest, including a single mention that officers located a gun, a pipe containing methamphetamine, and "marijuana gummy [worms]" in Akers's vehicle. The PSIR recommended a sentence of only 105 days, with credit for time served, followed by 36 months of supervised probation.

¶ 7 At the sentencing hearing, the district court began by inquiring whether the PSIR contained any errors. Akers's defense counsel replied that it did not, stating, "[W]e don't have any corrections with the pre-sentence report," and he urged the court to follow the PSIR's sentencing recommendation. The State asked the court to deviate from the recommendation, arguing that Akers's case was not a "typical enticement of a minor case." In support of this assertion, the State recounted how, among other things, authorities had apprehended Akers with the THC gummy worms, methamphetamine, and a handgun in his possession. Akers's counsel responded that the district court should not consider such "ancillary incidences" because they were unsubstantiated and Akers had not pled guilty to them. Counsel emphasized that this was Akers's first offense and once more urged the district court to follow the PSIR's sentencing recommendation.

¶ 8 Following these arguments, the district court asked Akers why he was in possession of the gun and THC gummy worms while waiting to meet his intended victim. Akers replied that he had forgotten the gun was in the vehicle and that he was "certified in California for medicinal marijuana." The district court then noted that it appeared that the THC gummy worms were intended for the girl.

¶ 9 The district court deviated from the PSIR's recommendation and imposed concurrent sentences of 1 to 15 years imprisonment on the enticement of a minor count and 0 to 5 years each on the remaining two counts. It explained that of the many enticement-of-a-minor cases to which it had previously been assigned, this case stood out because "this is the first one [it had] ever seen with a gun and with THC gummy [worms]," as well as methamphetamine. As such, it appeared to the court that Akers was "going to kidnap a child, maybe kill it." The district court explained, "Had any of those circumstances been different, even the two states away is disconcerting but not enough to send [Akers] to prison for. It's the gun and the gummy [worms] that really concerns the Court so much."

¶ 10 After the district court explained its sentencing decision, Akers's counsel requested that the district court reconsider its decision without relying on "activity that [Akers] did not plead guilty to, such as the methamphetamine or the THC." Counsel argued that the district court's consideration of that information put Akers "in a position where he cannot defend himself, where he cannot assert his innocence to those issues." The district court responded that it was ordinary practice for courts to consider the facts contained in presentence investigation reports, which often include "uncharged criminal activity." It further explained that for that reason presentence investigation reports are either stipulated to, or evidentiary hearings are held to "get the final set of facts [to which] everybody agrees." The district court declined to reconsider the sentence. Akers appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 11 Akers asserts that the district court erred by largely basing its sentencing decision on the fact that he was in possession of THC gummy worms at the time of his arrest. "The sentencing decision of a trial court is reviewed for abuse of discretion." State v. Valdovinos , 2003 UT App 432, ¶ 14, 82 P.3d 1167. Although "we traditionally afford the district court wide latitude and discretion" in sentencing, a district court abuses its discretion when it relies on irrelevant or unreliable information when imposing sentence. State v. Moa , 2012 UT 28, ¶¶ 34, 36, 282 P.3d 985 (quotation simplified).

¶ 12 Alternatively, Akers argues that he received ineffective assistance when his defense counsel failed to object to the inclusion of the gummy worm information in the PSIR but instead affirmatively told the court that there were no errors in the PSIR. "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." State v. Craft , 2017 UT App 87, ¶ 15, 397 P.3d 889 (quotation simplified).

ANALYSIS

I. Abuse of Discretion in Sentencing

¶ 13 District courts are permitted to "consider a wide range of evidence" when fashioning an appropriate sentence. State v. Howell , 707 P.2d 115, 118 (Utah 1985). But the latitude afforded to district courts is not without limit. The due process clause of the Utah Constitution requires district courts to base sentencing decisions "on reasonably reliable and relevant information." Id. See Utah Const. art. I, § 7. And "when there is evidence in the record showing a sentencing judge's reliance on specific information, we will not consider it improper for a judge to rely on such information if the evidence in question had indicia of reliability and was relevant in sentencing." State v. Moa , 2012 UT 28, ¶ 36, 282 P.3d 985 (quotation simplified). Thus, to show an abuse of discretion, a defendant bears the burden of establishing that the information the district court said it relied on in reaching its sentencing decision was unreliable or irrelevant. Id. ¶¶ 35-36.

¶ 14 In the present case, there is ample evidence in the record supporting the district court's reliance, when imposing sentence, on the information about Akers's possession of THC gummy worms. In explaining its decision to deviate from the PSIR's recommendation, the district court first noted that the combination of the gun, the THC gummy worms, and the methamphetamine made it appear that Akers intended to "kidnap a child, maybe kill it." The court further stated that it would not have sentenced Akers to prison "[h]ad any of those circumstances been different." But it was "the gun and the gummy [worms] that really concern[ed] the Court so much." This affirmative representation by the court satisfies the first requirement for a possible showing that the district court abused its discretion. See id. ¶ 35 (requiring a defendant to show "evidence of reliance, such as an affirmative representation in the record that the judge actually relied on the specific information in reaching her decision"). Nonetheless, Akers's challenge to the district court's sentencing decision fails because he has not shown that the information about the gummy worms was unreliable or irrelevant.

A. Reliability

¶ 15 District courts must base sentencing decisions on "reasonably reliable" information. State v. Howell , 707 P.2d 115, 118 (Utah 1985). Information is reasonably reliable if it has sufficient "indicia of reliability." Id.

¶ 16 Here, Akers has failed to identify any substantive evidence that challenges the reliability of the information regarding his possession of the THC gummy worms. See State v. Lingmann , 2014 UT App 45, ¶ 41, 320 P.3d 1063. On the contrary, evidence in the record strongly supports the reliability of the challenged information. Not only did Akers's defense counsel explicitly state that the PSIR did not contain any errors, but Akers himself did not deny being in possession of the THC gummy worms when the district court asked why he had brought them to the expected encounter with the girl. Instead, Akers essentially acknowledged their presence in his vehicle by responding that he was "certified in California for medicinal marijuana." And in anticipation of his encounter with the girl, he had promised to bring "special gummy worms, ... THC special." These exchanges and the lack of evidence challenging the information's accuracy satisfy the "reasonably reliable" standard of the due process clause of the Utah Constitution. See Howell , 707 P.2d at 118.

B. Relevance

¶ 17 Akers pled guilty to one count of enticing a minor, one count of dealing in harmful materials to a minor, and one count of possession of a firearm by a restricted person. In exchange, the State dismissed the other six charges, including two counts of possession of a controlled substance. Akers argues that the district court inappropriately considered the THC gummy worms because that information was relevant only to one of the dismissed possession charges and was irrelevant to the charges to which he pled guilty. Like the district court, we disagree.

¶ 18 District courts have the latitude to consider a wide range of evidence in reaching a sentencing decision. State v. Howell , 707 P.2d 115, 118 (Utah 1985). See also State v. Maestas , 2012 UT 46, ¶ 290, 299 P.3d 892 ("[A] sentencing body may consider evidence beyond a defendant's conviction when determining an appropriate sentence."). Akers does not cite any authority to support his contention that information automatically becomes irrelevant to a defendant's sentencing on other charges if it relates most directly to dismissed charges. On the contrary, appellate courts have repeatedly rejected the argument that it is an abuse of discretion for a district court to consider dismissed charges when imposing sentence. See Howell , 707 P.2d at 118 (holding that dismissed charges of sexual abuse were "[c]learly ... relevant in sentencing" defendants who pled guilty to physical abuse of their children); State v. Valdez , 2017 UT App 185, ¶ 13, 405 P.3d 952 ("[W]e disagree with [the defendant's] specific contention that dismissed or reduced charges are irrelevant or unreliable information regarding the gravity and circumstances of [the defendant's] crime or background."); State v. Perkins , 2014 UT App 176, ¶ 6, 332 P.3d 403 (per curiam) (noting that the defendant had not cited any authority supporting his argument that a district court is precluded from considering dismissed charges for sentencing purposes). Indeed, we have treated a district court's comments regarding a defendant's dismissed charges during sentencing as evidence that it considered all of the legally relevant factors in reaching its decision. See State v. Williams , 2006 UT App 420, ¶ 30, 147 P.3d 497. The information regarding the THC gummy worms therefore cannot be deemed irrelevant solely on the basis of its having been the subject of a dismissed charge.

¶ 19 Although the charge for possession of the THC gummy worms was dismissed as part of a plea negotiation, it still bore relevance to the remaining charges for enticement of a minor and possession of a dangerous weapon by a restricted person. During the course of convincing the girl to meet him in Utah to have sex, Akers told her that he would bring "special gummy worms, ... THC special." While the district court was not necessarily aware of this promise at the time of sentencing, it was entitled to consider the totality of the circumstances surrounding the charged conduct and make reasonable inferences concerning the charges to which Akers pled guilty. And even absent awareness of the promise to bring the THC gummy worms, it was not unreasonable for the district court to infer that the THC gummy worms were "there for the child."

¶ 20 The THC gummy worms were also relevant to the possession-of-a-dangerous-weapon-by-a-restricted-person charge. Akers achieved restricted status due to his unlawful possession of a Schedule I or Schedule II controlled substance. See Utah Code Ann. § 76-10-503(1)(b)(iv) (LexisNexis 2017) ("A Category II restricted person is a person who ... is in possession of a dangerous weapon and is knowingly and intentionally in unlawful possession of a Schedule I or II controlled substance."). And THC is a Schedule I controlled substance. See id. § 58-37-4(2)(a)(iii)(AA) (Supp. 2018). Even without the presence of methamphetamine, a Schedule II controlled substance, his possession of the THC gummy worms alone was sufficient to qualify him as a Category II restricted person, making the THC gummy worms relevant to the gun possession charge and therefore properly before the court.

¶ 21 For these reasons we hold that the information in the PSIR about the THC gummy worms was both reliable and relevant to Akers's sentencing and that the district court did not abuse its discretion in relying on the information when imposing sentence.

II. Ineffective Assistance of Counsel

¶ 22 "Implicit in the Sixth Amendment's guarantee of counsel is the right to effective assistance of counsel." Lafferty v. State , 2007 UT 73, ¶ 11, 175 P.3d 530. A criminal defendant receives ineffective assistance when (1) "counsel's performance was deficient" and (2) that "deficient performance prejudiced the defense." Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Defense counsel does not render deficient performance if counsel refrains from making futile objections. See Layton City v. Carr , 2014 UT App 227, ¶ 19, 336 P.3d 587.

¶ 23 Akers argues that his defense counsel performed deficiently when he did not object to the mention of the THC gummy worms in the PSIR. We disagree, because an objection to the inclusion of that information in the PSIR would have proven unsuccessful.

¶ 24 Utah Code section 77-18-1(6)(a) states:

Any alleged inaccuracies in the presentence investigation report ... shall be brought to the attention of the sentencing judge, and the judge may grant an additional 10 working days to resolve the alleged inaccuracies of the report with the department. If after 10 working days the inaccuracies cannot be resolved, the court shall make a determination of relevance and accuracy on the record.

Utah Code Ann. § 77-18-1(6)(a) (LexisNexis Supp. 2018) (emphasis added). As such, had Akers's defense counsel raised an objection to the inclusion of the challenged information in the PSIR, the district court would have been required to make a determination of relevance and accuracy of the information on the record. If the court determined the information to be both relevant and accurate, then the information would have remained in the PSIR and defense counsel's objection would have been unsuccessful.

¶ 25 The information in the PSIR was accurate and relevant. When asked about the THC gummy worms, Akers essentially acknowledged that he was in possession of them at the time of his arrest. Rather than deny their existence, he sought to justify his possession of them by referring to his eligibility in California to use medical marijuana. This explanation and his counsel's statement that the PSIR did not contain any errors strongly support a finding of reliability, which no doubt would have been supported by police testimony and the evidence log, had the State been put to its proof.

¶ 26 The district court also clearly considered the information to be relevant as it affirmatively represented that the THC gummy worms significantly factored into its sentencing decision-and we have determined that it did not abuse its discretion in doing so. See supra Part I.B. Akers's defense counsel therefore did not perform deficiently when he did not raise an objection that would have ultimately proven to be futile.

CONCLUSION

¶ 27 We conclude that the district court did not abuse its discretion by relying on information relating to the dismissed charges when it sentenced Akers. The information regarding his possession of THC gummy worms that he brought to his expected encounter with the girl was both reliable and relevant. Also, Akers did not receive ineffective assistance from his defense counsel because any objection to the inclusion of that information in the PSIR would have proven unsuccessful.

¶ 28 Affirmed.

      To better facilitate recounting the facts of this case, we refer to the Special Agent by her undercover persona, "the girl," in this opinion.

      "THC" is an acronym for "tetrahydrocannabinol," which is a "crystalline compound that is the main active ingredient of cannabis." Tetrahydrocannabinol , New Oxford American Dictionary 1794 (3d ed. 2010). In Utah, THC is categorized as a Schedule I controlled substance. See Utah Code Ann. § 58-37-4(2)(a)(iii)(AA) (LexisNexis Supp. 2018).

      Akers additionally contends that the district court had a statutory duty to make findings on the record regarding the accuracy and relevance of the information when his defense counsel objected to its reliance on the THC gummy worms in imposing sentence. Because the district court allegedly failed to meet its obligation, Akers argues that his case "should be remanded with instructions that the [district] court resolve [Akers's] objections to the inclusion of the irrelevant information in [the PSIR]." Although Utah Code section 77-18-1(6)(a) requires the district court to "make a determination of relevance and accuracy on the record" when parties object to the inclusion of unresolved information in presentence investigation reports, section 77-18-1(6)(b) requires the party to make the challenge "at the time of sentencing." See Utah Code Ann. § 77-18-1(6)(a)-(b) (LexisNexis Supp. 2018). Otherwise, "that matter shall be considered to be waived." Id. § 77-18-1(6)(b). Because Akers's defense counsel stated that the PSIR did not contain errors immediately before sentencing and challenged the inclusion of the information about THC gummy worms only after the district court imposed sentence, Akers waived any objections to the inclusion of the information in the PSIR. See State v. Franz , 2007 UT App 297U, para. 6, 2007 WL 2671356 ("[W]hen trial counsel stated that he had reviewed the PSI with Defendant and 'there were no errors' in the PSI, he statutorily waived any objections to the document."). The district court therefore had no duty to hold an evidentiary hearing to address the objections belatedly made by Akers's defense counsel. On the record before us, it appears that the objections would have been unavailing in any event. The presence of the THC gummy worms in his vehicle was solidly documented.

      Moreover, even if Akers's defense counsel had timely objected to the information about the THC gummy worms in the PSIR, the State undoubtedly would have entered into evidence the messages in which Akers promised to bring the THC gummy worms for the girl.

      Marijuana products that are designed to resemble commercially available gummy products, such as bears or worms, and other brightly colored candies are by their nature more appealing to children than marijuana in its traditional form. See Sean O'Connor & Sam Méndez, Concerning Cannabis-Infused Edibles: Factors That Attract Children to Foods 4-8 (Univ. Wash. Sch. Law, Cannabis Law Policy Project, June 28, 2016), https://lcb.wa.gov/publications/Marijuana/Concerning-MJ-Infused-Edibles-Factors-That-Attract-Children.pdf [https://perma.cc/2JJP-VTSM] (noting that children are attracted to foods that are "red, green, orange, and yellow" in color, shaped like "common candies [and] cookies" and with "sweet, fruity, and candy-like odors").

      Akers argues that because he lawfully obtained the THC gummy worms for medicinal purposes in California, they could not form the basis for his restricted status in Utah. To support this contention, he cites Utah Code section 58-37-2, which states that a controlled substance does not include "any drug intended for lawful use in the diagnosis, cure, mitigation, treatment, or prevention of disease in human or other animals." Utah Code Ann. § 58-37-2(1)(f)(ii)(B) (LexisNexis 2016). But Akers fails to acknowledge that this provision is limited to "ephedrine, pseudoephedrine, norpseudoephedrine, or phenylpropanolamine," that are obtained as an "over-the-counter medication without prescription." Id. The limited scope of this statute does not exonerate Akers from being illegally in possession of THC in Utah, in 2017, regardless of whether he lawfully obtained it for medical purposes in California. See id. § 58-37-4(2)(a)(iii)(AA) (Supp. 2018) (categorizing THC as a Schedule I controlled substance).

      Because we conclude that the performance of Akers's defense counsel was not deficient, we do not reach the prejudice prong of the ineffective assistance of counsel inquiry. See State v. Reid , 2018 UT App 146, ¶ 19, 427 P.3d 1261 ("A defendant's inability to establish either element defeats a claim for ineffective assistance of counsel.").


text:
    Riqo PEREA, Appellant, v. STATE of Utah, Appellee.
    No. 20170398-CA
    Court of Appeals of Utah.
    Filed December 20, 2018
    Randall W. Richards, Clearfield, Attorney for Appellant
    Sean D. Reyes and Erin Riley, Salt Lake City, Attorneys for Appellee
    Judge Gregory K. Orme authored this Opinion, in which Judges Kate Appleby and David N. Mortensen concurred.
    Opinion

      Judge Kate A. Toomey has resumed the use of her birth name and is now known as Judge Kate Appleby.

   ORME, Judge:

¶1 Appellant Riqo Perea challenges the district court's order dismissing his petition for postconviction relief that was premised on a claim of factual innocence. We affirm.

¶2 Perea, a member of the Ogden Trece gang, was visiting an Ogden home with several friends, including other Trece gang members. He got into a heated argument with members of the rival Norteños gang who were attending a wedding reception at a house across the street. Perea and his friends then got into a vehicle. As the vehicle pulled away, Perea, in the front passenger seat, climbed out the window, reached over the roof, and fired ten shots into the wedding crowd. Two people were killed, and others were injured.

¶3 A few days later, Perea confessed to police that he was the only person in the vehicle with a gun and that he fired the shots into the crowd. He also told police that he used a .22 caliber weapon, although the police had not disclosed that .22 was the caliber of gun used in the shooting. At trial, a witness (Witness), who had been standing on the walkway of the house where the wedding was held, testified that it was Perea who fired from the vehicle into the crowd. Passengers in the vehicle also testified that it was Perea who fired the shots. A jury convicted Perea on two counts each of aggravated murder and attempted murder. He was sentenced to life in prison without the possibility of parole for the aggravated murder convictions and three years to life for the attempted murder convictions.

¶4 Perea appealed his convictions. The Utah Supreme Court upheld them and noted "the overwhelming evidence of Mr. Perea's guilt." See State v. Perea , 2013 UT 68, ¶ 103, 322 P.3d 624. The Court expressly upheld the admission of Perea's confession into evidence. Id. ¶ 96. Perea later filed a petition for postconviction relief, but the district court summarily dismissed it, determining that the Supreme Court, on direct appeal, had already adjudicated the claims raised in the petition. This court affirmed the district court's dismissal of that postconviction petition. See Perea v. State , 2017 UT App 67, ¶ 7, 397 P.3d 770.

¶5 In 2015, Witness provided an affidavit to Perea's counsel, declaring that she did not see who fired the gun from the vehicle and that she never saw Perea with a gun that evening. She also stated that she felt "the police were pressuring [her] to testify in a certain way" at trial. Perea filed this postconviction factual innocence petition based on Witness's affidavit, contending that he was convicted on the strength of perjured testimony.

¶6 The State moved for summary judgment, arguing that Perea's "pleaded facts and proffered evidence ... are insufficient as a matter of law to demonstrate that he is entitled to factual innocence post-conviction relief." Determining that "the evidence presented by [Perea] does not show that he did not engage in the conduct for which he was convicted," the district court granted the motion and dismissed Perea's petition. Perea appeals.

¶7 Perea contends that the district court erred in summarily dismissing his factual innocence petition without holding an evidentiary hearing. We review the district court's decision de novo. See Gressman v. State , 2013 UT 63, ¶ 6, 323 P.3d 998.

¶8 To establish factual innocence, the Utah Post-Conviction Remedies Act "contemplates a two-stage process," and "[s]ection 78B-9-402 sets forth what a petitioner must do at the first stage to receive an evidentiary hearing on her petition for factual innocence." Brown v. State , 2013 UT 42, ¶ 40, 308 P.3d 486. See Wamsley v. State , 2014 UT App 254, ¶ 9, 338 P.3d 266. After a petition is filed, the district court conducts an initial review, determining whether the allegations in the petition are "merely relitigating facts, issues, or evidence presented in previous proceedings or presenting issues that appear frivolous or speculative on their face," and whether "the petition has satisfied the requirements of Subsection 2(a)" of the Factual Innocence Statute. Utah Code Ann. § 78B-9-402(2)(b), (9)(b) (LexisNexis Supp. 2018).

¶9 Subsection 2(a) requires that the petition

contain an assertion of factual innocence under oath by the petitioner and shall aver, with supporting affidavits or other credible documents, that:
(i) newly discovered material evidence exists that, if credible, establishes that the petitioner is factually innocent;
(ii) the specific evidence identified by the petitioner in the petition establishes innocence;
(iii) the material evidence is not merely cumulative of evidence that was known;
(iv) the material evidence is not merely impeachment evidence; and
(v) viewed with all the other evidence, the newly discovered evidence demonstrates that the petitioner is factually innocent.

Id. § 78B-9-402(2)(a) (emphasis added).

¶10 And "[i]f, upon completion of the initial review, the court does not dismiss the petition, it shall order the attorney general to file a response to the petition." Id. § 78B-9-402(9)(b). After the State has filed a response, "the court shall order a hearing if it finds the petition meets the requirements of Subsections (2) and (3) and finds there is a bona fide and compelling issue of factual innocence regarding the charges of which the petitioner was convicted." Id. § 78B-9-402(9)(c).

¶11 A bona fide and compelling issue of factual innocence "means that the newly discovered material evidence presented by the petitioner, if credible, would clearly establish the factual innocence of the petitioner." Id. § 78B-9-401.5(1) (2012). "Factual innocence" means that the petitioner did not "engage in the conduct for which [the petitioner] was convicted," "engage in conduct relating to any lesser included offenses of the crime for which [the petitioner] was convicted," or "commit any other felony arising out of or reasonably connected to the facts supporting the indictment or information upon which [the petitioner] was convicted."Id. § 78B-9-401.5(2).

¶12 Here, the district court determined upon its initial review that Perea's petition included a potentially troubling averment from Witness, and therefore ordered a response from the State. The State moved for summary judgment, arguing that Perea's petition did not meet the statutory requirements of subsections (2) and (3) because the newly discovered evidence did not establish Perea's factual innocence. See id. § 78B-9-402(2)-(3) (Supp. 2018). The district court considered whether Perea's petition raised a bona fide and compelling issue of factual innocence and concluded that Witness's affidavit failed to demonstrate that Perea "did not engage in the conduct for which he was convicted. At most, assuming the statements in the affidavit are credible, the affidavit merely demonstrates that [Witness] did not see who shot the gun. She does not indicate that [Perea] did not shoot the gun or identify somebody else as the shooter." For that reason, the court concluded that Witness's affidavit did not present a bona fide and compelling issue of factual innocence.

¶13 Perea contends that the district court erred because Witness's affidavit, "combined with previously available information, clearly contradicts the State's claim that [Perea] fired the fatal bullets-or any bullets at all." "Section 402 directs the court to view the petitioner's averment of newly discovered evidence 'with all the other evidence ' to determine whether the petitioner has met the threshold requirements for a hearing." Brown v. State , 2013 UT 42, ¶ 46, 308 P.3d 486 (emphasis in original) (quoting Utah Code Ann. § 78B-9-402(2)(a)(v) ). For a petitioner to be entitled to a hearing, the newly discovered evidence must demonstrate factual innocence in light of all the other evidence.

¶14 Witness's affidavit, even when viewed in its most favorable light, does not demonstrate a bona fide and compelling issue of factual innocence. Even with Witness recanting, all other evidence still points to Perea firing the gun from the vehicle into the crowd-the conduct for which he was convicted. Witness states that she did not see Perea "with the gun that evening" and "clearly did not see the face of the shooter in the vehicle." This does not contradict the State's evidence presented at trial that Perea was the one who fired the shots from the vehicle, including Perea's own confession and the testimony of other witnesses who were in the vehicle that Perea fired the gun from the vehicle. Because the newly discovered evidence does not meet section 402's statutory requirements, the district court did not err in dismissing Perea's petition without a hearing.

¶15 Perea also contends that the district court erred in granting the State's motion for summary judgment. "The court shall grant summary judgment if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Utah R. Civ. P. 56(a). And we affirm a "grant of summary judgment only if there are no disputed issues of material fact and, with the facts and all reasonable inferences viewed in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law." Jensen ex rel. Jensen v. Cunningham , 2011 UT 17, ¶ 36, 250 P.3d 465. Because Perea's petition did not demonstrate a bona fide and compelling issue of factual innocence, and consequently no genuine dispute of any material fact remained, the district court properly granted summary judgment to the State. We therefore conclude that the district court did not err in granting the State's motion for summary judgment and dismissing Perea's petition.

¶16 Affirmed.

      Perea also contends that the district court erred in denying his petition because the police violated his constitutional rights by suppressing evidence in his favor. But this is not an issue raised in his factual innocence petition, and we therefore decline to address it. See State v. Johnson , 2017 UT 76, ¶ 15, 416 P.3d 443 ("When a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation.").

      We note that subsection 3(a) also requires the petition to contain "an averment that ... neither the petitioner nor the petitioner's counsel knew of the evidence at the time of trial or sentencing or in time to include the evidence in any previously filed post-trial motion or postconviction motion" and that neither the petitioner nor his counsel could have discovered the evidence "through the exercise of reasonable diligence." Utah Code Ann. § 78B-9-402(3)(a) (LexisNexis Supp. 2018). Perea included this averment in his petition.

      Perea also suggests that improper police conduct led Witness to falsely testify and that the entire police investigation is now tainted by this conduct, including the testimony of the other witnesses. But Perea reads too much into a few lines of Witness's affidavit to draw such a conclusion. Moreover, he seeks to use this assertion in the affidavit as impeachment evidence. And " 'the material evidence' supporting a petitioner's 'assertion of factual innocence' cannot be 'merely impeachment evidence.' " Wamsley v. State , 2014 UT App 254, ¶ 24, 338 P.3d 266 (quoting Utah Code Ann. § 78B-9-402(2)(a)(iv) (LexisNexis Supp. 2013) ). Therefore, Perea would not be able to challenge the trial testimony of other witnesses to assert his factual innocence.

      Actions brought pursuant to the Post-Conviction Remedies Act are civil in nature and "governed by the rules of civil procedure." Utah Code Ann. § 78B-9-102(1)(a) (LexisNexis Supp. 2018).