State v. Lowther

Decision Date19 June 2017
Docket NumberNo. 20150803,20150803
Citation398 P.3d 1032
Parties STATE of Utah, Petitioner, v. John Marcus LOWTHER, Respondent.
CourtUtah Supreme Court

Sean D. Reyes, Att'y Gen., Tera J. Peterson, Asst. Solic. Gen., Salt Lake City, for petitioner.

Edward J. Stone, Salt Lake City, for respondent.

Chief Justice Durrant authored the opinion of the Court, in which Associate Chief Justice Lee, Justice Durham, Justice Himonas, and Judge Connors joined.

Having recused himself, Justice Pearce did not participate herein; Second District Court Judge David M. Connors sat.

On Certiorari to the Utah Court of Appeals

Chief Justice Durrant, opinion of the Court:


¶ 1 This case requires us to determine whether the doctrine of chances' four foundational requirements, outlined in State v. Verde ,1 apply to both rule 403 and rule 404(b) of the Utah Rules of Evidence. The court of appeals concluded that Verde 's foundational requirements displaced the factors set forth in State v. Shickles2 for purposes of a rule 403 balancing test.3 As discussed below, the court of appeals erred. 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. In this case, the district court did not abuse its discretion by failing to consider the Verde requirements. It did, however, abuse its discretion by mechanically applying the Shickles factors to assess the probative value of the State's rule 404(b) evidence. We therefore affirm the court of appeals' ultimate conclusion that the district court's evidentiary ruling was erroneous, but under different reasoning. As defendant John Marcus Lowther has ultimately prevailed on appeal, he is entitled to withdraw his guilty plea.


¶ 2 This case deals with the alleged rape or object rape of four women: A.P., C.H., C.R., and K.S. Each woman has identified Mr. Lowther as her attacker, and the State has filed charges against him for each alleged crime. After the district court severed the cases, the State elected to try Mr. Lowther first on the charge of raping K.S. And in prosecuting that case, the State moved to introduce the testimony of the other women under rule 404(b) of the Utah Rules of Evidence and the doctrine of chances in order to show that K.S. did not consent to sexual intercourse with Mr. Lowther. After an evidentiary hearing, the district court granted the State's motion. Mr. Lowther entered a conditional guilty plea to the rapes of K.S. and C.H., in exchange for the State's agreement to dismiss the charges regarding A.P. and C.R. His plea reserved the right to challenge the district court's decision to admit the testimony of A.P., C.H., and C.R. Mr. Lowther filed a timely appeal, and the court of appeals concluded that the district court erred in its application of the doctrine of chances and in its decision to admit the testimony of A.P. We granted certiorari to determine whether the court of appeals properly applied the doctrine of chances. As answering this question depends on knowledge of the underlying case, we first describe the factual background and then describe the procedural history of this case. We begin with testimony regarding the alleged rape at issue, K.S.'s, and then describe the testimony of the other three witnesses the State sought to introduce under the doctrine of chances.4

The Alleged Rape of K.S.

¶ 3 On September 23, 2010, 20-year-old K.S. and her friend, S.H., attended a movie premier. Before going to the movie, K.S. consumed "two or three shots worth" of vodka. During the movie, she also drank "a couple sips" of alcohol from a friend's flask. After the movie, K.S. and S.H. went to the Red Lion Hotel, and while there, K.S. started, but did not finish, a beer. After about an hour, K.S. and S.H. were tired. K.S. decided to stay the night at S.H.'s home, which she had done on previous occasions. Neither woman felt comfortable driving, so K.S. called her friend Aaron to pick them up and drive them to S.H.'s house.

¶ 4 Aaron and two other men arrived at about 1:30 or 2:00 a.m. in a car driven by Mr. Lowther. K.S. had met Mr. Lowther on a previous occasion through a mutual friend. On the drive home, Mr. Lowther insisted on taking the male passengers home first. He then drove K.S. and S.H. to S.H.'s house and, upon arriving, K.S. immediately went downstairs into a basement bedroom and climbed into bed. Still upstairs, Mr. Lowther asked S.H. if he could stay the night. At first she told him no, but eventually she made up a bed on the couch for him. She then joined K.S. in the basement bedroom to sleep. Soon thereafter, Mr. Lowther entered the bedroom and asked S.H. if he could lie between them. She told him no but he climbed in anyway and soon began touching S.H.'s breasts and vagina over her clothes. She pushed him away, got out of bed, and went upstairs.

¶ 5 K.S. was still sleeping during this time, but she eventually awoke to find Mr. Lowther's penis "inside" her. He was lying behind her and holding her down by reaching across her body to grab her wrist. She pushed him away and, after a brief struggle, left the room. She went to the police station later that day and reported the rape. The police had K.S. go to the hospital for a forensic sexual assault examination, and Mr. Lowther's DNA was matched to the detected semen.

The Alleged Rape of A.P.

¶ 6 On December 1, 2009, 17-year-old A.P. and her boyfriend attended a party at a home in Draper, Utah. Mr. Lowther also attended the party. Throughout the night, A.P. consumed approximately eight shots of vodka in a two-hour period. She became highly intoxicated and began to vomit. Her boyfriend escorted her into a basement computer room where she could lie down. While in the computer room, she continued to vomit and passed in and out of consciousness. Her boyfriend eventually left to buy her some Sprite and food from a store.

¶ 7 Sometime after A.P.'s boyfriend left, Mr. Lowther entered the room. At some point, the door was locked from the inside. When A.P. awoke, she told Mr. Lowther that she was sick and that her boyfriend had gone to the store for her. After this brief exchange, she lost consciousness. When she next awoke, Mr. Lowther was lying at her side and "dry humping" her. She told him "no" twice, but again lost consciousness. When she awoke the third time, Mr. Lowther was on top of her with his penis inside her. She repeatedly told him to stop and tried to "fight him off," but he held her down. She again lost consciousness. When she eventually awoke, her "pants were at [her] ankles" and Mr. Lowther was lying next to her naked. She got up and left the room.

The Alleged Rape of C.H.

¶ 8 Nearly two months later, on February 14, 2010, 18-year-old C.H. and her roommate held a party at their apartment. A mutual friend invited Mr. Lowther, whom C.H. had never met. C.H.'s boyfriend also attended the party. Throughout the night those in the apartment drank beer, and between 8:00 p.m. and 5:00 a.m., C.H. drank ten to fifteen beers, becoming "very intoxicated."5 At some point during the evening, she broke up with her boyfriend. Afterward, Mr. Lowther became "sympathetic" and tried to comfort her.

¶ 9 At about 5:00 a.m., C.H. went to her bedroom and either fell asleep or blacked out. Four guests, including Mr. Lowther, were still in the living room. Sometime thereafter, she awoke to find Mr. Lowther naked and "having sex" with her. She told him to stop and tried "as hard" as she could for several minutes to push him off. After she struggled two or three minutes, he finally got up and left the room. C.H. went into her roommate's bedroom, which adjoined her own, and called the police. After performing a sexual assault examination, the police were unable to recover any semen.

The Alleged Object Rape of C.R.

¶ 10 Approximately five months later, on July 19, 2010, 20-year-old C.R. and her boyfriend invited Mr. Lowther and another friend to their apartment for drinks. C.R.'s boyfriend had been friends with Mr. Lowther for over a year. The group drank vodka, and C.R. became "fairly intoxicated," having had five or six shots.6 Her boyfriend and Mr. Lowther drank more vodka than her, and before she went to bed, she saw Mr. Lowther lying on her counter throwing up into the sink.

¶ 11 Sometime after C.R. and her boyfriend went to bed, she awoke to find Mr. Lowther sitting on top of her legs, reaching up through one leg of her shorts, and penetrating her vagina with his fingers. She kicked him off with her legs and told him to "go home." He immediately left, and she reported the assault to police two months later when she learned that her best friend—K.S.—had also been raped by Mr. Lowther.

Proceedings Below

¶ 12 The State filed an information that included charges for the rapes of A.P., C.H., and K.S., and a charge for the object rape of C.R. The information also charged Mr. Lowther with two counts of forcible sexual abuse of S.H., but those charges were eventually dropped because S.H. would not cooperate in the prosecution. After the State filed the information, Mr. Lowther moved to sever the rape counts from each other and from the object rape count, and the district court granted the motion.

¶ 13 The State chose to first try Mr. Lowther for the rape of K.S. and filed notice under rule 404(b) of the Utah Rules of Evidence of its intent to introduce the testimony of A.P., C.H., and C.R. It argued that the victims' testimony regarding Mr. Lowther's prior bad acts would be admissible under the doctrine of chances, adopted by this court in State v. Verde ,7 to show that K.S. did not consent to sexual intercourse with Mr. Lowther.8

¶ 14 That doctrine "is a theory of logical relevance that ‘rests on the objective improbability of the same rare misfortune befalling one individual over and over.’ "9 Evidence of prior bad acts is admissible under the doctrine of chances only if four foundational requirements are satisfied: (1) materiality, (2) similarity, (3) independence, and (4)...

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    ...analysis to the text of rule 403, considering those factors that are appropriate given the particular circumstances of the case." State v. Lowther , 2017 UT 34, ¶ 45, 398 P.3d 1032. ¶ 41 "Stated succinctly, to be admissible, evidence of prior bad acts must be relevant and offered for a genu......
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4 books & journal articles
  • A Practitioner’s Guide to Utah Rule of Evidence 404(b)
    • United States
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    • Invalid date
    ...governed by the rule's plain language, with no presumption of admissibility or inadmissibility. State v. Lowther, 2017 UT 34, ¶ 30 n.40, 398 P.3d 1032. A Non-Propensity Purpose Assuming evidence is extrinsic and meets the other requirements to trigger 404(b), the proffering party must make ......
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