2023 UT 10
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
TORREY JORDAN GREEN,
Appellant.
No. 20190336
Heard: October 5, 2022
Filed Jun 1, 2023
On Direct Appeal
First District, Brigham City
The Honorable Brian G. Cannell
No. 181100491
Attorneys:
Sean D. Reyes, Att’y Gen., Nathan Jack, David A. Simpson, Asst.
Solics. Gen., Salt Lake City, Barbara K. Lachmar, Cache County,
for appellee
Emily Adams, Freyja Johnson, Cherise Bacalski, Bountiful,
for appellant
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE PETERSEN,
JUSTICE HAGEN, and JUSTICE POHLMAN joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 Torrey Green was charged with sexually assaulting seven
women. On his lawyer’s motion, six of the seven cases were
consolidated for trial. 1 A jury convicted Mr. Green of charges for
each of these six victims.
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1 The case that was not consolidated is not at issue in this appeal.
STATE v. GREEN
Opinion of the Court
¶2 Mr. Green seeks a reversal of his convictions, arguing that he
did not receive a fair trial. He advances four main arguments on
appeal. First, he argues that under the Utah Rules of Evidence—
specifically, rules 404(b) and 403—and the doctrine of chances, the
district court erred in allowing the State to use evidence of conduct
unrelated to a particular victim’s case (other-acts evidence) to show
that he sexually assaulted that victim. Relatedly, both he and the
State ask us to overturn our doctrine-of-chances precedent. Second,
Mr. Green asserts that the district court admitted hearsay statements
that are prohibited by the Utah Rules of Evidence. Third, he offers
several ways in which he claims his counsel rendered ineffective
assistance at trial. Finally, he maintains that the cumulative error
doctrine requires us to reverse his convictions.
¶3 Upon review of the parties’ arguments concerning the
doctrine of chances, we are persuaded that the doctrine should be
abandoned in favor of a plain-text reading of rules 402, 403, and
404(b). Because of this change in course, we analyze whether the
district court erred in admitting the other-acts evidence in Mr.
Green’s case under the rules of evidence (without any reference to
the doctrine of chances). Under this standard, we find no error in the
district court’s other-acts evidence determination.
¶4 As to Mr. Green’s hearsay claims, we conclude that most of
the statements at issue were properly admitted consistent with
exemptions to the hearsay rule. And because the evidence against
Mr. Green was overwhelming, we conclude that the district court’s
errors in admitting those few statements that should have been
excluded as hearsay were harmless.
¶5 We further conclude that Mr. Green’s ineffective assistance of
counsel arguments fail. None of these arguments satisfies the
standard articulated for such cases by the United States Supreme
Court and our caselaw.
¶6 Finally, based on our analysis of Mr. Green’s other challenges,
his cumulative error argument also fails. We accordingly affirm each
of Mr. Green’s convictions.
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Background 2
¶7 The State charged Mr. Green with the sexual assault and rape
of M.H., L.P., C.H., C.D., A.P., and V.S. Each of these six women
identified Mr. Green as her assailant, and the State filed charges
against him for each alleged crime.
¶8 Based on the similarities among the six accounts, the State
relied on rule 404(b) of the Utah Rules of Evidence and the doctrine
of chances to introduce the testimony of all six women with respect
to each of the charges, seeking to demonstrate that the six women
were not fabricating their claims, as alleged by Mr. Green. The
testimony was admitted for each of the six victims. Upon admission
of this evidence, Mr. Green’s attorney moved to consolidate the six
cases, and the motion was granted.
¶9 During the trial, defense counsel stipulated to a summary of
three Salt Lake Tribune articles (Tribune Articles) that described the
alleged sexual assaults of several of the women. The written
summary and stipulation were admitted into evidence as an exhibit
(Tribune Stipulation), which the jury was permitted to possess
during its deliberations.
¶10 After a ten-day trial, Mr. Green was convicted of raping
M.H., C.H., C.D., V.S., and A.P. He was also convicted of the object
rape and forcible sexual abuse of V.S. and of the sexual battery of
L.P. The jury acquitted Mr. Green of four charges: the kidnapping of
L.P., the forcible sexual abuse of L.P., the object rape of C.H., and the
forcible sexual abuse of C.H.
¶11 Mr. Green filed a timely appeal, challenging the district
court’s decision to admit the other-acts testimony under the Utah
Rules of Evidence and the doctrine of chances. He also challenges the
district court’s admission of hearsay evidence and its decision to
allow certain documentary exhibits (including the Tribune
Stipulation) to accompany the jury into its deliberations. Mr. Green
further argues that his counsel was ineffective in moving to
consolidate the six cases, agreeing to the Tribune Stipulation and
permitting it and other exhibits to accompany the jury in its
deliberations, not objecting to the State’s admission of hearsay
_____________________________________________________________
2 State v. Heaps, 2000 UT 5, ¶ 2,
999 P.2d 565 (“When reviewing a
jury verdict, we examine the evidence and all reasonable inferences
in a light most favorable to the verdict, reciting the facts
accordingly.”).
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STATE v. GREEN
Opinion of the Court
evidence, and failing to object to the “improper racial theme”
allegedly created by the State at trial. Mr. Green also argues that,
when viewed cumulatively, the district court’s errors require us to
reverse his convictions.
¶12 Because analyzing these issues requires a basic
understanding of the underlying case, we begin by outlining Mr.
Green’s history at Utah State University (USU) and the publication
of the Tribune Articles. Next, we analyze the testimony of the six
victims as well as the associated hearsay testimony provided by their
colleagues to rebut a claim of recent fabrication. Then, we discuss the
alleged racial theme created at trial. And finally, we describe the
procedural history of the case.
A. Mr. Green’s Football Career and the Publication of the Tribune Articles
¶13 Mr. Green began studying at USU in 2011. He chose to attend
USU because the university recruited him to play football, which he
did collegiately from 2011 to 2016. On March 5, 2016, Mr. Green left
USU to begin training camp with the National Football League and
was subsequently drafted by the Atlanta Falcons.
¶14 Soon thereafter, on July 21, 2016, the Salt Lake Tribune printed
an article reporting that an unnamed male who attended USU had
been accused of committing several sexual assaults. The article
discussed V.S.’s and A.P.’s allegations and included details of their
alleged rapes. On August 4, 2016, the Salt Lake Tribune published a
second article, this time identifying Mr. Green as the unnamed male.
After the second article was published, the Atlanta Falcons cut Mr.
Green from the team. On October 9, 2016, the Salt Lake Tribune
printed a third article, which repeated the allegations of V.S. and
A.P. and reported further allegations by M.H. and L.P. Not long after
the publication of the third Tribune Article, the State brought
charges against Mr. Green.
B. The Rape of M.H.
¶15 At Mr. Green’s trial, M.H. testified that in November 2013,
Mr. Green raped her. She met Mr. Green on Tinder, a dating app,
and he invited her to his apartment for dinner. After dinner, Mr.
Green offered to give her a massage, to which she agreed. During the
massage, he tried to take her clothes off, but she resisted, telling him
to stop. Eventually, Mr. Green forced her clothes off, stating,
“[Y]ou’ll like it. It’s going to be fun.” Mr. Green then proceeded to
rape her. After it was over, M.H. drove herself home.
¶16 To support M.H.’s allegations, the State called four other
witnesses—M.H.’s on-again-off-again boyfriend, A.W., A.W.’s
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cousin (A.W.’s Cousin), and two of M.H.’s friends, A.H. and N.M.
All four individuals testified concerning what they had heard about
the rape. In support of its case, the State also submitted into evidence
a poem that M.H. wrote about the rape shortly after it occurred.
¶17 A.W. stated that M.H. came to his house in November or
December 2013 to talk. He testified that she told him “she had been
with [Mr. Green], and that they had sex, but she didn’t want to, that
he had forced it on her and . . . that she said no.” Defense counsel did
not object to A.W.’s testimony.
¶18 A.W.’s Cousin subsequently testified that in November or
December 2013, A.W. told him that he had heard that M.H. “had
been raped by a USU athlete.” Defense counsel did not object to
A.W.’s Cousin’s testimony. Finally, both A.H. and N.M. testified that
in the summer of 2016, M.H. told both of them that Mr. Green had
raped her. Defense counsel also did not object to A.H.’s or N.M.’s
testimony.
¶19 The State submitted a poem that M.H. wrote “right after” the
rape, which she posted on social media approximately ten days later.
The poem used explicit language describing what occurred and its
effect on M.H. Defense counsel objected to the poem’s admission.
The court overruled the objection and allowed the poem into
evidence under the present sense impression exception in rule 803
and the residual exception in rule 807 of the Utah Rules of Evidence.
C. The Sexual Battery of L.P.
¶20 L.P. testified that in October 2014, Mr. Green sexually
assaulted her with her clothes on. She explained that she met Mr.
Green on Tinder, and he invited her to his apartment to watch a
movie. Mr. Green tried to hold her hand, cuddle with her, and kiss
her, but she rebuffed his advances, telling him that she did not want
to do those things. After Mr. Green continued to make advances, she
attempted to leave, but he cornered her, made comments about her
body, and then grabbed her and simulated sex by rubbing his body
against hers. She continued to resist, and eventually Mr. Green
stopped and took her home.
¶21 To support L.P.’s allegations, the State called four
witnesses—L.P.’s three roommates at the time of the incident, K.E.,
M.J., and S.S., and L.P.’s mother, K.P. All four witnesses testified
regarding what L.P. told them about the assault.
¶22 K.E. testified that in October 2014, L.P. told her that Mr.
Green had “tried to kiss her and held her down” and “that she didn’t
want it.” Defense counsel objected to this testimony, but the court
5
STATE v. GREEN
Opinion of the Court
overruled the objection under the excited utterance exception of rule
803 of the Utah Rules of Evidence. M.J. testified that in October 2014,
L.P. told her that Mr. Green had “tried to push her up against the
bed.” And S.S. testified that in October 2014, L.P. told her that Mr.
Green had “tried to rape her.” Defense counsel did not object to
either M.J.’s or S.S.’s testimony.
¶23 K.P. testified that in October 2014, L.P. called her and told
her that she had been on a date with Mr. Green and that during the
date, she was “basically raped with [her] clothes on.” Defense
counsel objected to K.P.’s testimony on hearsay grounds, but the
court overruled the objection and permitted the testimony under the
excited utterance hearsay exception of rule 803.
D. The Rape of C.H.
¶24 C.H. testified that in the fall of 2015, she was raped by Mr.
Green. She explained that she met Mr. Green on Tinder, and he
invited her over to his apartment to watch a movie. During the
movie, they started kissing, and Mr. Green tried to put his hands
under—and then take off—her clothes. She told him to stop and
pushed his hands away, but Mr. Green ignored her, saying things
like, “You know you’ll like this.” He then forced her clothes off and
proceeded to rape her. She continued to resist and eventually
succeeded in pushing Mr. Green off of her. She then got dressed and
drove herself home.
¶25 To support C.H.’s allegations, the State called her sorority
sister, A.N., to testify. A.N. testified that in October 2015, C.H. told
her that a USU football player had raped her—though at the time,
C.H. did not disclose the football player’s name. A.N. also testified
that sometime in 2016, after the second Tribune Article, which
identified Mr. Green, was published, C.H. disclosed to her that Mr.
Green was the one who had raped her. Defense counsel did not
object to A.N.’s testimony.
E. The Rape of C.D.
¶26 C.D. testified that in October 2014, she was raped by Mr.
Green. She explained that after she met Mr. Green at the USU
student center, they began texting, and Mr. Green invited her over to
his apartment to eat dinner and watch a movie. Because she did not
have a car, Mr. Green picked her up and brought her to his
apartment. While they were watching the movie, they began kissing.
Mr. Green then started to touch her body, even though she
repeatedly requested that he stop. Despite her resistance, Mr. Green
held her down and then proceeded to rape her, saying, “I know you
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want it.” After it was over, C.D. had Mr. Green drive her to the oncampus dormitory building where her friend lived.
¶27 To support C.D.’s allegations, the State called two witnesses,
C.D.’s friend (C.D.’s Friend) and C.D.’s mother, A.D. Both testified
regarding what C.D. had told them about the rape. The court also
admitted into evidence an essay that C.D. wrote about the
experience.
¶28 C.D.’s Friend testified that in the fall of 2014, C.D. came to his
house late one night to talk to him. He claimed that she had
communicated to him that someone had “pinned her down” and
“forced [him]self on her.” Defense counsel did not object to C.D.’s
Friend’s testimony. C.D.’s mother, A.D., testified that in the fall of
2015, C.D. told her that she had been raped while at USU in 2014.
She also testified that in 2016, after the Salt Lake Tribune published an
article identifying Mr. Green as an alleged rapist, C.D. named Mr.
Green as the individual who had raped her. Defense counsel did not
object to A.D.’s testimony.
¶29 The court also admitted into evidence an essay that C.D.
wrote in October 2014. In this essay, C.D. described her experience as
a rape victim and detailed what had occurred on the night the rape
took place. Defense counsel did not object to the admission of the
essay.
F. The Rape of A.P.
¶30 A.P. testified that in June 2015, she was raped by Mr. Green.
She explained that she met Mr. Green on Tinder, and he invited her
to his apartment. She refused his invitation, so Mr. Green said he
would come to her apartment instead. Initially, she told him that she
did not want him to come over, but when he showed up, she
decided to let him in for a few minutes. After talking for a while, she
asked Mr. Green to leave so she could go to bed. Mr. Green then
kissed her. Thinking Mr. Green was saying good night, she kissed
him back for a moment but made it clear that it was time for him to
leave. Mr. Green ignored her and, despite her opposition, followed
her into her bedroom, complimenting her body. Mr. Green then held
her down, pulled off her clothes, and began raping her, saying that
she “would like it.” After it was over, Mr. Green fell asleep, and she
locked herself in the bathroom until the next morning, when Mr.
Green left.
¶31 To support A.P.’s allegations, the State called two
witnesses—her boyfriend, B.H., and a USU official, J.E., to testify
regarding what A.P. had told them.
7
STATE v. GREEN
Opinion of the Court
¶32 B.H. testified that A.P. came to him in July 2015 and told him
she had been raped. He also testified that soon thereafter, A.P.
identified Mr. Green as her assailant. Defense counsel objected to
B.H.’s testimony on hearsay grounds, but the court overruled the
objection, stating that the testimony “relates to timeline as well as
setting the stage for context with respect to the alleged impact and
condition of the alleged victim following the disclosure.”
¶33 J.E., an officer in USU’s Sexual Assault and Anti-Violence
Office, testified that on November 6, 2015, A.P. told her that Mr.
Green had raped her. The State offered this testimony “for the
purpose of showing the effect on the listener” because J.E. provided
services for A.P. as a result of their conversation. Defense counsel
did not object to the testimony “for that limited purpose.”
G. The Rape of V.S.
¶34 V.S. testified that in January 2015, Mr. Green raped her. She
explained that she met Mr. Green at the USU student center and a
few days later, he invited her to his apartment. She told Mr. Green
that she didn’t want to go to his apartment, but he drove to her
apartment to pick her up anyway. Because Mr. Green had a friend
with him, V.S. decided that she would go with them to Mr. Green’s
apartment. Shortly after they arrived at Mr. Green’s apartment, the
friend left. Mr. Green then started kissing V.S. and tried to take her
clothes off. She told him not to, but he ignored her and carried her
into his bedroom. Mr. Green then forced her clothing off and
proceeded to rape her, saying, “Tell me how you like it.” Mr. Green
then asked for a massage and fell asleep. V.S. then called a friend to
pick her up.
¶35 To support V.S.’s allegations, the State called three
witnesses—her roommate, K.A., her resident advisor, R.B., and her
ecclesiastical leader, R.M. All three witnesses testified regarding
what V.S. told them about the rape.
¶36 K.A. testified that around 10:00 or 11:00 p.m. on the night of
the rape in January 2015, V.S. woke her up and told her that Mr.
Green had raped her. Defense counsel did not object to K.A.’s
testimony. R.B. then testified that V.S. woke her late one night in
January 2015 and told her that “she had been raped while she was
hanging out with [Mr. Green].” Defense counsel did not object to
R.B.’s testimony. R.M. then testified that one evening in January
2015, he met with V.S., and she told him that “she had been grabbed
and physically constrained and then been raped.” Defense counsel
objected to R.M.’s testimony, but the district court overruled the
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objection and allowed the testimony to “show the effect on the
listener” because R.M. subsequently counseled and comforted V.S.
H. The Alleged Improper Racial Theme
¶37 Mr. Green points to three instances of what he asserts to be
improper references to race at trial. First, M.H. testified that “[Mr.
Green] said he really likes black girls because they are really sassy,
and if you try to have sex with them, you can’t.” M.H. testified that
Mr. Green made this statement shortly after raping her. Second, A.P.
testified that as a result of Mr. Green raping her, she developed
symptoms of PTSD, including “not [being] able to be around black
men at all” because when she is in their presence, she has a “full-on
panic attack.” And third, in its opening and closing arguments, the
State described the women as “young,” “naïve,” and “innocent” girls
while describing Mr. Green as a “big, old, fast linebacker” who was a
“wolf in sheep’s clothing” and who took the women back to his
“lair.”
I. The Proceedings Below and Mr. Green’s Defense
¶38 The State charged Mr. Green separately with respect to each
of the six women. It charged him with the kidnapping and forcible
sexual abuse of L.P.; the rape, object rape, and forcible sexual abuse
of V.S. and C.H.; and the rape of A.P., M.H., and C.D.
¶39 In his defense, Mr. Green argued that each of the six women
had lied about her encounter with him. He claimed they did so for
various reasons, including because they hoped to “repair a
relationship,” wanted “money” and “attention,” sought a way to get
“help with . . . grades” (through an academic accommodation),
needed “an excuse” for “breaking curfew,” or were “upset about not
getting another date.”
¶40 As the cases proceeded, the State moved under rule 404(b) of
the Utah Rules of Evidence to have all six women’s allegations
admitted at all six trials to rebut Mr. Green’s defense that the women
fabricated their testimonies. After reviewing the evidence under the
Utah Rules of Evidence and the doctrine of chances, the district court
granted the motion. Defense counsel then moved to consolidate all
six trials into one. The district court granted the motion and
consolidated the cases. The trial for the consolidated case lasted ten
days. Mr. Green was convicted on eight counts and acquitted of four.
He was convicted of raping M.H., C.H., C.D., V.S., and A.P. He was
also convicted of the object rape and the forcible sexual abuse of V.S.
and of the sexual battery of L.P. He was acquitted of the kidnapping
of L.P., the forcible sexual abuse of L.P., the object rape of C.H., and
the forcible sexual abuse of C.H.
9
STATE v. GREEN
Opinion of the Court
¶41 Mr. Green appealed. We have jurisdiction pursuant to Utah
Code section 78A-3-102(3)(i).
Standard of Review
¶42 We address four issues in this appeal: (1) whether the district
court erred in admitting the other-acts evidence, (2) whether the
district court erred in admitting hearsay evidence, (3) whether
defense counsel was ineffective at trial, and (4) whether Mr. Green’s
convictions should be reversed for cumulative error.
¶43 The appropriate standard of review for a district court’s
decision to admit or exclude evidence is “abuse of discretion.” 3 A
district court abuses its discretion when it admits or excludes
“evidence under the wrong legal standard.” 4 “[W]hether the district
court applied the proper legal standard in assessing the admissibility
of . . . evidence is a question of law that we review for correctness.”5
If the district court applies the correct legal standard, it abuses its
discretion only when “its decision to admit or exclude evidence is
beyond the limits of reasonability.” 6
¶44 “An ineffective assistance of counsel claim raised for the first
time presents a question of law.” 7
¶45 Before reversing a verdict or sentence under the cumulative
error doctrine, we review each claim of error to determine whether
“(1) an error occurred, (2) the error, standing alone, has a conceivable
potential for harm, and (3) the cumulative effect of all the potentially
harmful errors undermines [our] confidence in the outcome.”8 If we
determine “that either a party’s claim did not amount to an error, or
that the claim was an error but has no potential to cause harm on its
own, the claim cannot weigh in favor of reversal under the
cumulative effects test.” 9
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3 See State v. Cuttler, 2015 UT 95, ¶ 12,
367 P.3d 981.
4 See
id.
5
Id. (cleaned up).
6
Id. (cleaned up).
7 Wyatt v. State,
2021 UT 32, ¶ 11,
493 P.3d 621 (cleaned up).
8 State v. Martinez-Castellanos,
2018 UT 46, ¶ 42,
428 P.3d 1038.
9
Id.
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Analysis
¶46 On appeal, Mr. Green asks us to reverse his convictions. He
contends that the district court abused its discretion and that his
counsel was ineffective in various ways. He first challenges the
district court’s admission of other-acts evidence under the doctrine
of chances and the Utah Rules of Evidence. In addition, both he and
the State urge us to overrule our doctrine-of-chances precedent.
¶47 Mr. Green also challenges the district court’s admission of
several out-of-court statements, claiming they are inadmissible
hearsay. The State responds that the challenged statements were
admissible because they fall under one or more exceptions to or
exemptions from the hearsay rule.
¶48 Next, Mr. Green asserts that his counsel was ineffective in
(1) moving to consolidate the six cases into one, (2) agreeing to the
Tribune Stipulation and permitting documentary exhibits to go into
the jury deliberations, (3) failing to object to hearsay statements, and
(4) failing to challenge the purported improper racial theme
allegedly developed by the State. Finally, Mr. Green asks us to
reverse the jury verdict under the cumulative error doctrine.
¶49 We are persuaded that the doctrine of chances has, in
significant respects, been difficult to apply in practice, and that its
requirements deviate from the plain text of the rules of evidence.
Accordingly, we abandon the doctrine in favor of a plain-text
analysis of the rules of evidence. Reviewing the district court’s other-acts evidence determination under the language of the rules of
evidence, absent the doctrine-of-chances framework, we conclude
that the district court did not abuse its discretion in admitting the
evidence.
¶50 Mr. Green’s additional challenges fail. All but four of the out-of-court statements admitted by the district court were admissible
under the prior consistent statement rule. Although the remaining
four do not fall under any hearsay exemption or exception, the
court’s errors in admitting them were harmless given the
overwhelming evidence against Mr. Green and the fact that the
statements were cumulative of other properly admissible evidence.
Accordingly, Mr. Green’s ineffective assistance of counsel claims fail,
as does his cumulative error argument.
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STATE v. GREEN
Opinion of the Court
I. We Abandon the Doctrine of Chances in Favor of a Plain-Text
Application of the Rules of Evidence
A. The Doctrine of Chances Is an Analytical Framework for Assessing
Some Other-Acts Evidence Under the Rules of Evidence
¶51 The doctrine of chances was born of a desire to provide an
analytical framework for addressing tensions inherent in rule 404(b)
of the Utah Rules of Evidence. That rule forbids “[e]vidence of a
crime, wrong, or other act” when offered “to prove a person’s
character in order to show that on a particular occasion the person
acted in conformity with the character.” 10 But it permits this type of
evidence when offered for “another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” 11 The tension created by
these provisions is exacerbated by the fact that “evidence of prior
bad acts often will yield dual inferences—and thus betray both a
permissible purpose and an improper one.” 12
¶52 The doctrine of chances is intended to serve as an analytical
tool for assessing “other-acts” evidence in some contexts.
Traditionally, the doctrine has been used to rebut a defendant’s
claim that an unlikely event resulted from mistake, coincidence, or
accident. In one famous example, referenced in State v. Verde, 13 a
defendant, Smith, was charged with murder after his putative wife,
Mundy, died in the bathtub. 14 In his defense, Smith claimed that
Mundy’s death was accidental. 15 To rebut that defense, the
prosecution presented evidence showing that two other women who
had purportedly been married to Smith had also died in their
bathtubs under similar circumstances. 16 On appeal, the court
determined that although the evidence of the two other deaths was
inadmissible as evidence of Smith’s bad character, it was
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10 UTAH R. EVID. 404(b)(1).
11 Id. R. 404(b)(2).
12State v. Verde,
2012 UT 60, ¶ 16,
296 P.3d 673, abrogated on other
grounds by State v. Thornton,
2017 UT 9,
391 P.3d 1016.
13 See
id. ¶ 49 & n.20.
14 See R v. Smith, (1915) 11 Crim. App. 229 (KB).
15 See id. at 233.
16 See id. at 229.
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nevertheless admissible because it bore “upon the question whether
the acts alleged to constitute the crime . . . were designed or
accidental.” 17
¶53 Under our formulation of the doctrine of chances, we have
allowed other-acts evidence to be admitted to show “the objective
improbability of the same rare misfortune befalling one individual
over and over.” 18 Of particular relevance to Mr. Green’s case, our
doctrine-of-chances caselaw has allowed for the admission of other-acts evidence to rebut a defendant’s claim of fabrication. 19
¶54 In cases implicating the doctrine of chances, we have
required that a party seeking to admit other-acts evidence “satisfy
four threshold showings: materiality, similarity, independence, and
frequency,” 20 which aim to assess “whether a body of prior bad acts
evidence is being employed for a proper, non-character statistical
inference.” 21 If these foundational requirements are met, the doctrine
then asks a district court to evaluate the evidence under rule 403.22
At this stage, we have required that courts “identify the likely
inferences the jury would draw from the other-acts evidence and
then ask if the evidence’s probative value (the jury drawing a
permissible inference) [is] substantially outweighed by the danger of
unfair prejudice (the jury drawing an impermissible inference).” 23
B. More Good Than Harm Will Come from Abandoning the Doctrine
of Chances
¶55 Both Mr. Green and the State ask us to overturn our doctrine-of-chances precedent. Mr. Green asks us to “overturn [our] holdings
in State v. Verde . . . about the admissibility of evidence under the
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17 Id. at 237.
18 Verde, 2012 UT 60, ¶ 47 (cleaned up).
19 See
id. (explaining that the “doctrine defines circumstances
where prior bad acts can properly be used to rebut a charge of
fabrication”).
20 State v. Richins,
2021 UT 50, ¶ 56,
496 P.3d 158.
21 State v. Lowther,
2017 UT 34, ¶ 21,
398 P.3d 1032.
22See Verde,
2012 UT 60, ¶ 57 (stating that the “four foundational
requirements . . . should be considered within the context of a rule
403 balancing analysis”).
23 Richins,
2021 UT 50, ¶ 103.
13
STATE v. GREEN
Opinion of the Court
doctrine of chances.” The State contends that our “recent, judicially
created ‘doctrine of chances’” is not “valid.”
¶56 “[W]e do not overrule our precedents lightly,” 24 and we
avoid doing so “unless they’ve proven to be unpersuasive and
unworkable, create more harm than good, and haven’t created
reliance interests.” 25 We are persuaded that, with respect to the
doctrine of chances, the “intentionally high bar” 26 for overruling
precedent has been cleared.
¶57 Significantly, the parties agree. Though their arguments
proceed under different rationales, Mr. Green and the State agree
that the doctrine is based on unpersuasive authority and has been
difficult to apply in practice. They also seem to agree—again, albeit
for different reasons—that the doctrine has created more harm than
good. And the parties agree that because the doctrine was
introduced into our caselaw just over a decade ago and has changed
in its application since then, the doctrine has not created reliance
interests.
¶58 We have recognized that “a uniform view amongst the
parties is a unique and powerful tell: damning evidence of how
poorly the test has worked and of the negligible benefit, if any, it’s
generated.”27 Here, we afford weight to the fact that both Mr. Green
and the State criticize the doctrine of chances and urge us to
reconsider its place in our caselaw.
¶59 Moreover, we note that in previous doctrine-of-chances
cases, we have acknowledged that criticisms like those described in
the parties’ briefs “merit careful consideration.” 28 And, on occasion,
in an effort to refine the doctrine and clarify its application, we have
done our best to address some of these criticisms. 29 Yet, despite our
_____________________________________________________________
24 Eldridge v. Johndrow, 2015 UT 21, ¶ 21,
345 P.3d 553 (cleaned
up).
25 Neese v. Utah Bd. of Pardons & Parole,
2017 UT 89, ¶ 57,
416 P.3d
663.
26 State v. Wilder,
2018 UT 17, ¶ 19,
420 P.3d 1064.
27 Id. ¶ 27.
28 See State v. Argueta,
2020 UT 41, ¶ 33,
469 P.3d 938.
29 See id. ¶ 30 (taking the “opportunity to further clarify the
application of the doctrine of chances and the burden that the party
(continued . . .)
14
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efforts to clarify the doctrine, we seem to have generated more
confusion than light. This leads us to conclude that while the
doctrine may have been analytically helpful in some cases, it has
been confusing and difficult to apply in others. And because we are
not convinced that further attempts at elucidating the doctrine will
yield greater clarity, we conclude that more good than harm will
come from abandoning the doctrine.
C. The Rules of Evidence Constitute the Primary Law of Evidence
¶60 While the State articulates a clear path forward absent the
doctrine of chances—suggesting that the concerns the doctrine seeks
to address are “more elegantly resolved” in the plain language of the
rules of evidence—Mr. Green has not done so. He argues that the
doctrine lacks adequate safeguards and should not be available to
rebut a defendant’s fabrication defense, but he does not explain how
to implement additional safeguards absent the framework the
doctrine provides. Regardless, we are convinced that the correct
approach to admitting other-acts evidence is to adhere to the text of
the rules of evidence.
¶61 On several occasions we have affirmed that courts are bound
by the text of the rules of evidence. 30 In State v. Thornton, for
example, we repudiated the requirement in our prior opinions that
trial judges scrupulously examine other-acts evidence under rule
404(b). 31 Upon reflection, we concluded that the “scrupulous
examination” requirement was “more confusing than helpful.” 32 In
eliminating that requirement, we stressed “that ‘scrupulous
examination’ is not an independent requirement of rule 404(b)”33
and “that it is our rules that state the primary law of evidence in the
State of Utah.”34
seeking to admit evidence under the doctrine must meet”); Richins,
2021 UT 50, ¶ 53 (responding to appellant’s “valid concerns about
the application of the doctrine of chances”).
30See, e.g., Lowther,
2017 UT 34, ¶ 1 (“In applying rule 403, a court
is not required to consider any set of factors or elements, but is
bound by the language of the rule.”).
31
2017 UT 9, ¶ 44.
32 Id. ¶¶ 3, 44, 47.
33 Id. ¶ 55.
34 Id. ¶ 46 (cleaned up).
15
STATE v. GREEN
Opinion of the Court
¶62 The doctrine of chances has likewise proven to be more
confusing than helpful. And its requirements have strayed from the
plain text of the rules of evidence. So we now overrule the doctrine
of chances and reemphasize that the rules of evidence represent the
primary law of evidence.
¶63 “Evidence of prior bad acts must clear several evidentiary
hurdles before admission—rules 404(b), 402, and 403.” 35 Under rule
404(b), the question “is whether the evidence has a plausible,
avowed purpose beyond the propensity purpose that the rule deems
improper. If it does then the evidence is presumptively admissible
(subject to rule 402 and 403 analysis).” 36 Rule 402 “requires that
evidence be relevant, which is defined in rule 401 as evidence having
any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence.” 37 And rule 403 permits a
trial court to exclude evidence “if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” 38
¶64 In sum, the rules of evidence provide that evidence of prior
crimes, uncharged misconduct, or bad acts “is admissible if it (1) is
relevant to, (2) a proper, non-character purpose, and (3) does not
pose a danger for unfair prejudice that substantially outweighs its
probative value.” 39
II. The District Court Did Not Abuse Its Discretion in Admitting the
Other-Acts Evidence
¶65 Having abandoned the doctrine of chances, we must
determine whether the district court’s admission of the other-acts
evidence in Mr. Green’s case was supportable under a plain reading
_____________________________________________________________
35State v. Lucero, 2014 UT 15, ¶ 13,
328 P.3d 841, abrogated on other
grounds by Thornton,
2017 UT 9.
36 Thornton,
2017 UT 9, ¶ 58.
37 Lucero,
2014 UT 15, ¶ 17 (cleaned up).
38 UTAH R. EVID. 403.
39 State v. Killpack,
2008 UT 49, ¶ 45,
191 P.3d 17 (cleaned up).
16
STATE v. GREEN
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of the rules of evidence. 40 Though the district court viewed its
analysis of the other-acts evidence’s admissibility through the
doctrine-of-chances lens, we determine that its ultimate conclusion
was not error under a textual analysis of the rules of evidence. 41 The
evidence is admissible under a plain reading of rule 404(b), and the
district court did not abuse its discretion in concluding that the
evidence did not violate rule 403. 42
_____________________________________________________________
40 We note the possible alternative approach of reviewing the
district court’s other-acts evidence determination under the doctrine
of chances and abandoning the doctrine prospectively only. Under
the “long-standing traditional rule,”
the law established by a court decision applies both
prospectively and retrospectively, even when the
decision overrules prior case law. Only if retrospective
application of a decision creates a substantial injustice
will a court limit a new decision to prospective
application. A substantial injustice is often shown by
an impairment of legal interests or expectations that
have been created by reliance on the old law.
State v. Saunders, 1999 UT 59, ¶ 53,
992 P.2d 951 (plurality opinion)
(cleaned up). We adhere to the traditional approach here and
accordingly apply the law established by this decision both
prospectively and retrospectively. Mr. Green has asked that we
overrule our doctrine-of-chances precedent. In doing so, he
acknowledges that “there is not a strong reliance interest that would
be compromised.” So we conclude that Mr. Green’s legal interests
and expectations are not impaired by our application of the plain
text of the rules of evidence to the facts of his case.
41 See State v. Thornton,
2017 UT 9, ¶ 51,
391 P.3d 1016 (“For most
decisions reviewed on appeal, the error, if any, is in making an
incorrect decision on the operative question presented.”); see also
State v. Von Niederhausern,
2018 UT App 149, ¶ 14,
427 P.3d 1277
(“[W]e no longer focus on the path the trial court followed in
reaching its conclusion, but review only the conclusion itself.”).
42Mr. Green does not dispute the relevance of the other-acts
evidence under rule 402.
17
STATE v. GREEN
Opinion of the Court
A. The Other-Acts Evidence Is Admissible Under a Plain Reading
of Rule 404(b)
¶66 Mr. Green contends that the other-acts evidence is
inadmissible under the plain language of rule 404(b) because in his
case there is no “genuine issue of mistake or accident.” 43 The State,
on the other hand, asserts that the evidence is admissible under the
plain language of rule 404(b) because it is relevant to a proper, non-character purpose—the purpose of rebutting Mr. Green’s claims of
fabrication.
¶67 The State asked the district court to admit the other-acts
evidence, arguing it is admissible to rebut Mr. Green’s “charge of
fabrication, mistake, or lack of intent.” In its view, the evidence is
“highly probative of the primary issue at trial—whether the
complaining witness is fabricating her allegation of sexual assault
and/or whether Mr. Green mistakenly believed the complaining
witness consented to sexual activity.” The district court admitted the
evidence. It reasoned that the State had “offered the evidence for the
purpose of rebutting arguments against fabrication, consent, or lack
of intent, rather than as evidence of [Mr. Green’s] propensity to
commit crime.”
¶68 The plain language of rule 404(b) prohibits the admission of
evidence of a “crime, wrong, or other act” when offered “to prove a
person’s character in order to show that on a particular occasion the
person acted in conformity with the character.” 44 The rule goes on to
say that this type of evidence “may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.” 45
_____________________________________________________________
43Mr. Green requests that if we overturn or limit our doctrine-of-chances holdings, we remand for the district court to determine “in
the first instance” whether the other-acts evidence is admissible
under rule 404(b). This request rests on a misunderstanding of the
doctrine of chances. As noted above, the doctrine is meant to guide
the analysis under rules 404(b) and 403. It therefore does not
supplant analysis under rule 404(b); rather, it aids that analysis.
Here, the district court did not, as Mr. Green suggests, fail to
consider the other-acts evidence under rule 404(b).
44 UTAH R. EVID. 404(b)(1).
45 Id. R. 404(b)(2).
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The question before us, then, is whether the State offered the other-acts evidence to prove Mr. Green’s character in order to show that he
acted in conformity with his character, or whether the State offered it
“for another purpose.”
¶69 Mr. Green’s primary defense at trial was that the victims
fabricated their accusations for various reasons, including because
they sought “money” and “attention” and because they were “upset
about not getting another date.” The district court admitted evidence
of other acts to “dispel any realistic possibility of independent
invention.” In other words, the evidence was admitted to rebut Mr.
Green’s fabrication defense.
¶70 The list of enumerated purposes for which other-acts
evidence may be admissible under rule 404(b) does not include the
rebuttal of fabrication. But the plain text of the rule, in conjunction
with the other rules of evidence, suggests that the evidence may be
admissible to rebut a fabrication defense. We have described rule
404(b) as an “inclusionary rule with regard to other . . . evidence [of
crimes] which is offered for a proper, noncharacter purpose.” 46 In a
footnote in State v. Lowther, we mentioned that there is no
“presumption of either admissibility or inadmissibility” within rule
404(b). 47 But while there is no express presumption of admissibility
or inadmissibility, a contextual analysis of the rules and their
structure supports an inclusionary approach to admitting evidence
under rule 404(b). Rule 402 provides that relevant evidence is
generally admissible unless prohibited by the United States or Utah
Constitutions, statute, or applicable rule. 48 Rule 401 defines evidence
as “relevant” if it “has any tendency to make a fact more or less
probable” and “is of consequence.” 49 And rule 404(b)’s use of “such
as” indicates that the list of non-character purposes is “illustrative
and not exclusive.” 50
_____________________________________________________________
46 See State v. Decorso, 1999 UT 57, ¶ 24,
993 P.2d 837, abrogated on
other grounds by Thornton,
2017 UT 9.
47
2017 UT 34, ¶ 30 n.40,
398 P.3d 1032.
48 UTAH R. EVID. 402.
49 See
id. R. 401.
50 See State v. Verde,
2012 UT 60, ¶ 15,
296 P.3d 673, abrogated on
other grounds by Thornton,
2017 UT 9.
19
STATE v. GREEN
Opinion of the Court
¶71 Stated plainly, whether other-acts evidence is admissible
under rule 404(b) depends only on whether it is being offered for a
non-character purpose. Although, as Mr. Green accurately points
out, the other-acts evidence in his case was not admitted to show the
absence of mistake or accident, it was admitted for a non-character
purpose—to show that the women’s allegations were not recently
fabricated. Mr. Green put the women’s credibility at issue by
claiming they were lying, and the accusations of multiple similar acts
of sexual misconduct by Mr. Green corroborated each woman’s
story. The other-acts evidence was therefore admissible under a
plain-text reading of rule 404(b).
B. The District Court Did Not Abuse Its Discretion in Admitting the
Other-Acts Evidence Under Rule 403
¶72 Mr. Green next challenges the district court’s determination
that the other-acts evidence is admissible under rule 403. He offers
three ways in which the district court’s admission of the evidence
violated the rule: (1) the court failed to weigh competing inferences,
(2) the court failed to consider the prejudicial effect of the number of
other accusers and the volume of the other-acts evidence, and (3) the
court’s limiting instruction did not mitigate the unfair prejudice
created by the other-acts evidence. We are not convinced by Mr.
Green’s arguments and conclude that the district court’s decision to
admit the other-acts evidence was within its discretion.
¶73 Mr. Green argued to the district court that the other-acts
evidence was inadmissible under rule 403 because, in his view, there
was no “need for the evidence,” the “duplicative evidence” created a
risk of provoking a sense of horror in the jury, and the State’s
purpose in admitting the evidence was simply to bolster the victims’
credibility. While the court recognized the “danger of unfair
prejudice,” it identified two reasons that danger did not make the
evidence inadmissible under rule 403. First, it determined that the
danger of unfair prejudice was mitigated because the other-acts
evidence was “highly similar” in each case. Second, it concluded that
it could further mitigate the danger of unfair prejudice by presenting
a limiting instruction to the jury.
¶74 Mr. Green first challenges the court’s decision by claiming
the court failed to weigh competing inferences. He defends this
position by pointing to our holding in State v. Richins.51 In that case,
_____________________________________________________________
51 2021 UT 50,
496 P.3d 158.
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STATE v. GREEN
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Richins was charged with lewdness when a fifteen-year-old girl
alleged she saw him masturbating in his yard. 52 The district court
admitted evidence of “four prior occasions when Richins had been
accused of exposing and/or stimulating himself in public,” and the
court of appeals upheld that determination. 53 After reviewing the
case under the doctrine-of-chances framework, we reversed. 54 We
held that the court of appeals incorrectly analyzed the doctrine’s
frequency requirement and that the other-acts evidence ran afoul of
rule 403. 55 We explained we had “always envisioned that rule 403
would play a crucial role in the doctrine of chances analysis.” 56 And
we discussed the requirement, which originated in State v. Verde and
continued to develop thereafter, that if other-acts evidence “may
sustain both proper and improper inferences under rule 404(b), the
court should balance the two against each other under rule 403.”57 In
Richins’s case, we concluded that because the district court had not
conducted the balancing described in Verde and subsequent caselaw
(i.e., the court had not balanced competing (proper and improper)
inferences), the court of appeals erred in upholding the district
court’s other-acts evidence determination under rule 403. 58
¶75 Although Mr. Green accurately describes our analysis and
holding in Richins, we note that our review in that case was
conducted under the doctrine-of-chances framework. As noted
above, having abandoned that framework, we now review Mr.
Green’s case to determine whether the district court abused its
discretion under the plain text of the rules of evidence, without
consideration of the doctrine of chances. Our holding in Richins is
therefore less relevant than it would be if we were to retain the
doctrine.
¶76 In reviewing the other-acts evidence under rule 403, the
district court in Mr. Green’s case recognized the State’s avowed
purpose in seeking to admit the evidence—“to rebut arguments that
_____________________________________________________________
52 Id. ¶¶ 1, 4.
53 Id. ¶¶ 2–3, 32–35.
54 Id. ¶¶ 41–55, 114–15.
55 Id. ¶¶ 96, 103–04.
56 Id. ¶ 98.
57 Id.; Verde, 2012 UT 60, ¶ 18.
58 Richins,
2021 UT 50, ¶ 103.
21
STATE v. GREEN
Opinion of the Court
the alleged victims’ testimony was fabricated, that the sexual
conduct was consensual, or that [Mr. Green] believed he had
received consent and thus lacked the requisite mens rea.”
Acknowledging the possibility that the evidence could create “an
undue tendency to suggest decision on an improper basis,” the court
described the possibility that the evidence could “lead a jury to
punish [Mr. Green] for acts other than those charged in the instant
case, or confuse it.” Weighing the probative value of the evidence
against the dangers set forth in rule 403, the court determined that
“the danger of unfair prejudice is slight . . . and does not outweigh
the highly probative value of [the] evidence.”
¶77 Among other reasons for admitting the evidence, the court
referred to its analysis of the similarity requirement under the
doctrine of chances to explain the evidence’s probative value. In that
analysis, the court highlighted the similarities among the women’s
accounts. As one example, in C.H.’s case, the court noted as follows:
According to her testimony, like three of the other
alleged victims, she met [Mr. Green] on Tinder. Like
five of the others, she was assaulted at her first private
meeting with [Mr. Green]. Like five of the others, her
assault occurred at [Mr. Green’s] apartment. Like four
of the others, he had put on a movie for them to watch
first. Like all the others, she verbally and physically
communicated that she did not consent. Like five of the
others, it was a vaginal rape with his penis. Like four of
the others, he told her she would enjoy it or was
enjoying it.
Mr. Green contends that the similarity of the allegations did not
reduce the likelihood that the jury would draw an improper
probability inference from the evidence. Indeed, the district court
considered the possibility that the jury would use the other-acts
evidence to draw an improper inference, but, given the similarities
among the women’s accounts, it concluded that it was unlikely that a
jury would find the evidence in one woman’s case to be lacking but
find the evidence in another woman’s case compelling enough to
deliver a verdict on an improper basis.
¶78 Under the language of rule 403, “the probative value of the
evidence must be substantially outweighed by the danger of unfair
prejudice; and unfair prejudice results only where the evidence has
22
STATE v. GREEN
Cite as 2023 UT 10
an undue tendency to suggest decision upon an improper basis.”59
We therefore “indulge a presumption in favor of admissibility.”60
With these principles in mind, we acknowledge that the other-acts
evidence prejudiced Mr. Green. But we cannot say that the district
court abused its broad discretion in concluding that the similarities
among the women’s accounts reduced the tendency for the jury to
decide upon an improper basis and that the danger of unfair
prejudice did not substantially outweigh the evidence’s probative
value.
¶79 Mr. Green also disputes the district court’s other-acts
determination under rule 403 because, he contends, the court failed
to consider the prejudicial effect of the number of other accusers and
the volume of other-acts evidence. We decline to overturn the district
court’s determination on this ground, because we conclude that the
court did not overlook the considerations Mr. Green raises. The
district court considered Mr. Green’s argument that if the jury were
“allowed to hear a parade of six women all testify as to alleged
assaults, . . . the duplicative evidence has a serious risk of arousing a
sense of horror in the jury.” It noted the possibility that “[a] jury,
listening to a litany of accusations, could be tempted to deliver a
verdict on a basis other than the evidence in the instant case” but
nevertheless determined that the danger of unfair prejudice did not
substantially outweigh the evidence’s probative value.
¶80 The district court reasoned that a limiting instruction would
serve to offset the danger of unfair prejudice posed by the other-acts
evidence. The limiting instruction to the jury stated, in relevant part:
Evidence that defendant committed alleged crimes
against the other alleged victims was not admitted to
show that he has a general criminal propensity, or to
prove a character trait of the defendant, or to show that
he acted in a manner consistent with such a trait. You
may not convict a person of a crime simply because
you believe he may have committed some other act at
another time.
Mr. Green contends, pointing again to Richins for support, that the
court’s limiting instruction was insufficient to have a curative effect
_____________________________________________________________
59 State v. Lucero, 2014 UT 15, ¶ 32,
328 P.3d 841 (cleaned up),
abrogated on other grounds by Thornton,
2017 UT 9.
60
Id. (cleaned up).
23
STATE v. GREEN
Opinion of the Court
and thereby render the other-acts evidence admissible under rule
403. In Richins we “applaud[ed]” and “commend[ed] the district
court for its decision to . . . instruct the jury about the proper use of
prior acts evidence” but ultimately held that “the danger of the jury
drawing the impermissible inference so substantially outweighed the
evidence’s probative value that the . . . jury instruction could not
have a curative effect.” 61 We noted that “[i]n a different case,” steps
like issuing a jury instruction “might have had a material impact on
the rule 403 balancing.” 62 We think this happened in Mr. Green’s
case. The district court issued the limiting instruction to “ensure that
the jury does not misunderstand the purpose of the . . . evidence and
misapply it.” It took this step while weighing the probative value of
the evidence against the danger of unfair prejudice. And it
ultimately determined that the danger of unfair prejudice was
mitigated by the similarities among the accounts and by the limiting
instruction. We hold that this determination was not an abuse of
discretion under the plain language of rule 403.
¶81 In sum, the district court did not abuse its discretion in
admitting the other-acts evidence. The evidence was admitted for a
non-character purpose under rule 404(b), and the district court was
within its discretion when it determined that the evidence’s
probative value was not substantially outweighed by a danger of
unfair prejudice under rule 403.
III. The District Court Did Not Abuse Its Discretion in Admitting
Out-of-Court Statements
A. All but Four of the Out-of-Court Statements Qualify as Being “Not
Hearsay” Under the Prior Consistent Statement Exemption to the
Hearsay Rule
¶82 In vying for the admissibility of the out-of-court statements
at issue here, the State primarily argues that the declarations were
prior consistent statements offered to rebut a charge of recent
fabrication. Mr. Green argues that the prior consistent statement
exemption does not apply because the victims had motive to
fabricate their accusations.
_____________________________________________________________
61 Richins, 2021 UT 50, ¶ 106.
62
Id.
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STATE v. GREEN
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¶83 Hearsay is generally defined as an out-of-court statement
offered “to prove the truth of the matter asserted.”63 In other words,
hearsay is a statement that the declarant originally made outside of
the current trial or hearing and is now being used to prove the truth
of what was said. 64 There are multiple exemptions from and
exceptions to the rule against hearsay. Under specific circumstances,
some out-of-court statements used for their truth are classified as
“not hearsay” and are excluded from the rule. 65 Others are still
considered hearsay but are nonetheless admissible due to the
conditions under which they were made. 66 Where an exemption or
exception does not apply, and counsel fails to object to a statement’s
admission, a defendant may, in some cases, bring a subsequent claim
for ineffective assistance of counsel. 67
¶84 Rule 801 provides a relevant exemption to the rule against
hearsay, defining certain statements as “not hearsay” where the
declarant (1) testifies, (2) is subject to cross-examination, (3) the
statement is “consistent with the declarant’s testimony,” and (4) the
testimony “is offered to rebut an express or implied charge that the
declarant recently fabricated it or acted from a recent improper
influence or motive in so testifying.” 68 This is known as the prior
consistent statement exemption to the hearsay rule. This exemption
“applies only to premotive, consistent, out-of-court statements.” 69 Its
purpose “is to admit statements that rebut a charge of recent
fabrication or improper influence or motive, not to bolster the
believability of a statement already uttered at trial.” 70 In other
_____________________________________________________________
63 UTAH R. EVID. 801(c).
64 See, e.g., State v. Johnson, 2022 UT 14, ¶ 21,
508 P.3d 100.
65 See UTAH R. EVID. 801(d).
66 See
id. R. 803–804.
67 See, e.g., Bolander v. Iowa,
978 F.2d 1079, 1084 (8th Cir. 1992)
(holding that the defendant received ineffective assistance of counsel
because his attorney did not object to hearsay statements made by
the wife of the victim).
68 UTAH R. EVID. 801(d)(1)(B).
69 State v. Bujan,
2008 UT 47, ¶ 11,
190 P.3d 1255.
70
Id.
25
STATE v. GREEN
Opinion of the Court
words, “such statements are admissible only if they were made prior
to the time a motive to fabricate arose.” 71
¶85 The State argues that almost all the out-of-court statements
presented at trial qualify as prior consistent statements because any
motive the victims may have had to fabricate arose at the time the
Tribune Articles were published. The rationale behind the State’s
position is that this motive to coordinate fabrications (e.g., financial
gain and attention)—a motive that Mr. Green advances—could not
have existed before the initial allegations gained notoriety in the
news. The State further emphasizes that rule 801 does not require
that a prior statement rebut all possible improper influences or
motives. Instead, it claims the rule merely requires that the prior
statement “rebut an express or implied charge” of improper
influence or motive.72 In other words, the State argues that because
the statements at issue were given independently and before the
Tribune Articles were published—the publication constituting “an”
improper motive for fabrication—the statements are admissible
under rule 801.
¶86 In response, Mr. Green contends that the victims had motive
to fabricate their statements even before the Tribune Articles were
published; thus, the prior consistent statement exemption does not
apply. He lists several potential motives the victims may have had to
concoct their accusations (some of which theoretically arose
immediately after the rapes occurred) that would render the
statements inadmissible. And, to further his argument, Mr. Green
asserts that for a prior consistent statement to be admissible under
rule 801, it must have been given before any potential motive to
fabricate arose. 73
¶87 We disagree with Mr. Green’s interpretation of rule 801 and,
for the reasons discussed below, hold that all but four of the out-of-court statements at issue qualify as prior consistent statements and
that the district court did not abuse its discretion in admitting them.
_____________________________________________________________
71 State v. Nunes, 2020 UT App 145, ¶ 25,
476 P.3d 172 (cleaned
up).
72 (Quoting UTAH R. EVID. 801(d)(1)(B) (emphasis added).)
73Mr. Green also contends that his counsel at trial was ineffective
because many of the statements were admitted without objection,
but as discussed in Part IV infra, the errors were harmless.
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STATE v. GREEN
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Further, we hold that any error the district court made by admitting
the four hearsay statements was harmless because the evidence
against Mr. Green was overwhelming.
1. The Primary Motive for Fabrication Advanced by Mr. Green Is
That the Victims Were Influenced by the Tribune Articles to Seek
Notoriety or Financial Gain
¶88 It is undisputed that Mr. Green challenges the
trustworthiness of his accusers. The bedrock of his defense is that the
accusations against him were fabricated. While Mr. Green postulates
various hypothetical motives for fabrication, all but one of these
motives are referenced only in the footnotes of his briefs. In these
footnotes, Mr. Green theorizes that the women might have lied about
being sexually assaulted because they were upset about not getting a
second date, or because they wanted to preserve a romantic
relationship, avoid embarrassment, evade punishment for breaking
curfew, fulfill an assignment for class, or receive academic
accommodations. But Mr. Green provides little support for these
theories, and from the body of his briefs, it is clear that the main
theory Mr. Green advances in support of his claim that the women
fabricated their allegations is that they had been influenced by the
Tribune Articles.
¶89 While Mr. Green does not clearly articulate what about the
Tribune Articles motivated the women to accuse him, he references
their publication and the effect they had on the women more than
two dozen times throughout his briefs. For example, Mr. Green
repeatedly emphasizes that five of the six victims did not report
being raped to the police until after at least one of the Tribune
Articles had been published. Also, multiple times, Mr. Green asserts
that the similarities and details from the women’s allegations stem
from their having read the Tribune Articles. And, on more than one
occasion, Mr. Green specifically claims that the Tribune Articles
provided the victims with both the motive and the ability to
fabricate.
¶90 These repeated references strongly suggest that Mr. Green
contends that all six women were primarily motivated by the desire
for attention or the prospect of financial gain. This inference is
further supported by the record before us, which indicates that on at
least four occasions, Mr. Green asserted that the women waited to
accuse him until he had “signed a contract to play professional
football,” insinuating that the women’s true motive—bolstered by
the publication of the Tribune Articles—was (as articulated by Mr.
Green) that they wanted “money” or “attention.” So both the record
27
STATE v. GREEN
Opinion of the Court
and the parties’ briefs demonstrate that the primary motive asserted
by Mr. Green for fabrication arose on July 21, 2016, when the first
Tribune Article was published. Because most of the statements that
Mr. Green challenges were made long before that date and were
offered to rebut his express charge of fabrication, they are admissible
under rule 801. 74
a. All but two of the statements at issue in M.H.’s case are prior
consistent statements
¶91 All but two of the statements at issue in M.H.’s case are
admissible under rule 801. A.W.’s testimony, A.W.’s Cousin’s
testimony, and M.H.’s poem were all properly admitted—A.W.’s
testimony and A.W.’s Cousin’s testimony both recount statements
given before the motive to fabricate created by the Tribune Articles
arose, and M.H. wrote her poem almost three years before the first
Tribune Article was published. A.W. testified that in November or
December 2013, M.H. told him she had been raped. A.W.’s Cousin
testified that in November or December 2013, A.W. told him that he
had heard that M.H. had been raped. And M.H.’s poem, which
details her rape, was written in November 2013. In other words, all
three of these statements were given almost three years before the
first Tribune Article was published in July 2016. Because these
statements were offered to rebut Mr. Green’s claim that M.H.
recently fabricated her accusations, they are admissible under rule
801, and the district court did not abuse its discretion in admitting
them.
¶92 Only the statements proffered by A.H. and N.M.—that in the
summer of 2016, M.H. told them Mr. Green had raped her—were
given after the publication of the first Tribune Article. The district
court, therefore, erred in admitting them.
b. All the statements at issue in L.P.’s case are prior consistent
statements
¶93 The statements Mr. Green challenges in L.P.’s case are
admissible under rule 801. The testimonies of K.E., M.J., and S.S.—
that in October 2014, L.P. told them that Mr. Green had physically
restrained her and tried to rape her—are statements given almost
_____________________________________________________________
74 For the purposes of our analysis concerning the victims’ recent
motive to fabricate, we assume that the Tribune Articles qualify as a
sufficient motive under rule 801.
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two years before the first Tribune Article was published in July 2016.
And K.P.’s testimony—that in October 2014, L.P. told her that while
on a date with Mr. Green, she was “raped with her clothes on”—is a
statement that was also given almost two years before the first
Tribune Article was published. So because these statements were
offered to rebut Mr. Green’s claim that L.P. fabricated her
accusations, they are admissible as prior consistent statements, and
the district court did not abuse its discretion in admitting them.
c. Only one of the statements at issue in C.H.’s case fails to qualify
as a prior consistent statement
¶94 In support of C.H.’s allegations, the State called C.H.’s
sorority sister, A.N., who testified that in October 2015, C.H. told her
that she had been raped. A.N. further testified that sometime in 2016,
after the first two Tribune Articles were published, C.H. told her that
Mr. Green was the one who raped her. The first of these two
statements was given almost a year before any Tribune Article was
published and was offered to rebut Mr. Green’s claim that C.H.
fabricated her accusations; thus, the district court did not abuse its
discretion in admitting it. But the second statement, which identified
Mr. Green as the person who raped her, was given shortly after two
of the Tribune Articles were published, so the court erred in
admitting it at trial.
d. All but one of the statements at issue in C.D.’s case are prior
consistent statements
¶95 Only one of the statements at issue in C.D.’s case was given
after the publication of the first Tribune Article; all the others qualify
as prior consistent statements. C.D.’s Friend’s testimony—that in the
fall of 2014, C.D. told him that Mr. Green forced himself on her—was
given almost two years before the first Tribune Article was
published. The essay that C.D. wrote, which described her
experience as a rape victim, was written in October 2014, also predating the Tribune Articles by almost two years. And the testimony
that her mother, A.D., gave—that in the fall of 2015, C.D. told her
that she had been raped—was likewise given almost a year before
the first Tribune Article was published. So because they were offered
to rebut Mr. Green’s claim that C.D. fabricated her accusations after
reading the Tribune Articles, all these statements are admissible
under rule 801, and the district court did not abuse its discretion in
admitting them.
¶96 But the statement in A.D.’s testimony—that in 2016, C.D. told
her that Mr. Green raped her—was given shortly after the first two
29
STATE v. GREEN
Opinion of the Court
Tribune Articles were published, so the court erred in admitting it at
trial.
e. All the statements at issue in A.P.’s case are prior consistent
statements
¶97 All the statements Mr. Green challenges in A.P.’s case are
admissible under rule 801. A.P.’s statement that B.H. mentioned in
his testimony—that in July 2015, she told him that Mr. Green had
raped her—was given a year before the first Tribune Article was
published. And A.P.’s statement that J.E. quoted in her testimony—
that in November 2015, A.P. told her that Mr. Green raped her—was
made eight months before any of the Tribune Articles were
published. So because they were offered to rebut Mr. Green’s claim
that A.P. fabricated her accusations, these statements qualify as prior
consistent statements, and the district court did not abuse its
discretion in admitting them.
f. All the statements at issue in V.S.’s case are prior consistent
statements
¶98 All the statements Mr. Green challenges in V.S.’s case are
admissible under rule 801. V.S.’s statement that both K.A. and R.B.
repeated—that one night in January 2015, V.S. told them that Mr.
Green raped her—was made a year and a half before the first
Tribune Article was published. And V.S.’s statement that R.M.
reiterated—that sometime in January 2015, V.S. told him that she
had been raped—was also made 18 months before any Tribune
Article was published. So because they were offered to rebut Mr.
Green’s claim that V.S. fabricated her accusations, these statements
qualify as prior consistent statements, and the district court did not
abuse its discretion in admitting them.
2. Rule 801(d)(1)(B) Does Not Require That Every Possible Motive to
Fabricate Be Rebutted
¶99 Mr. Green expressly argues that the victims invented their
stories of rape after reading the Tribune Articles. To rebut these
claims, the State introduced the consistent testimony detailed above
to support the victims’ allegations. Rule 801(d)(1)(B) states that to be
considered “not hearsay,” the prior consistent statement must be
offered “to rebut an express or implied charge” that the declarant
fabricated the testimony provided.75 The rule does not require that
_____________________________________________________________
75 UTAH R. EVID. 801(d)(1)(B) (emphasis added).
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the statement rebut every possible motive to fabricate. While Utah
courts have yet to expound on this subject, other jurisdictions have
analyzed this issue when interpreting versions of rules similar to
801(d)(1)(B). And where our caselaw analyzing a rule of evidence is
insufficient, we may look to other courts’ interpretations for
guidance. 76
¶100 In interpreting rule 801(d)(1)(B)(i) of the Federal Rules of
Evidence—which is functionally identical to Utah rule 801(d)(1)(B)—
the Ninth Circuit in United States v. Kootswatewa 77 explained that the
rule “does not require that a prior statement rebut all improper
influences or motives suggested by defense counsel. It is sufficient if
the prior statement tends to rebut one of them.” 78 Similarly, in
Dowthitt v. State, 79 where a Texas court of appeals interpreted a rule
of evidence that is also essentially identical to the Utah rule, 80 the
court held, “[I]t is not necessary that a prior consistent statement
have been made before all motives to fabricate arose. The rule
requires merely that the witness’ prior consistent statement be
offered to rebut an express or implied charge against him of recent
fabrication or improper influence or motive.” 81 We agree with these
courts. In Mr. Green’s case, because the prior consistent statements
were used to rebut Mr. Green’s express claims of fabrication and
were given before the first Tribune Article was published on July 21,
2016, we conclude that all but four of the statements were “not
hearsay” under the prior consistent statement exemption to the
hearsay rule. Thus, the district court did not err in admitting them at
_____________________________________________________________
76 See Robinson v. Taylor, 2015 UT 69, ¶ 10,
356 P.3d 1230 (stating
that when interpreting an evidentiary rule, we may “rely on
interpretations of similar federal rules by federal courts to assist our
own interpretation”); State v. Vallejo,
2019 UT 38, ¶ 76 n.14,
449 P.3d
39 (“[W]here a state court has interpreted a rule of evidence
determined to be in lockstep with the respective federal rule, we may
consider such state cases as well.”).
77
893 F.3d 1127 (9th Cir. 2018).
78
Id. at 1135.
79
931 S.W.2d 244 (Tex. Crim. App. 1996).
80 Compare UTAH R. EVID. 801(d)(1)(B) with TEX. R. EVID.
801(e)(1)(B).
81 Dowthitt,
931 S.W.2d at 264 (cleaned up).
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STATE v. GREEN
Opinion of the Court
trial. But because the four remaining out-of-court statements do not
fall under a hearsay exception or exemption, the court erred in
admitting them.
B. The Court’s Errors in Admitting the Four Hearsay Statements
Were Harmless
¶101 “[A]n erroneous decision to admit or exclude evidence . . .
cannot result in reversible error unless the error is harmful.” 82 So
when an error is harmless, we do not disturb the district court’s
decision. “Harmless errors are errors which, although properly
preserved below and presented on appeal, are sufficiently
inconsequential that we conclude there is no reasonable likelihood
that the error affected the outcome of the proceedings.” 83 “For an
error to require reversal, the likelihood of a different outcome must
be sufficiently high to undermine confidence in the verdict.” 84 When
determining whether an error is harmless, “we consider a host of
factors including, among others, the importance of the witness’s
testimony to the prosecution’s case and the overall strength of the
State’s case. The more evidence supporting the verdict, the less likely
there was harmful error.” 85
¶102 In the case before us, the evidence against Mr. Green is
extensive. In light of everything presented at trial, including the
testimony of the six victims; the statements given by their friends,
family members, and colleagues; the documentary exhibits
provided; and Mr. Green’s own declarations, we conclude that the
case against Mr. Green is overwhelming. Accordingly, the likelihood
of a different outcome is insufficient “to undermine [our] confidence
in the verdict,” 86 and we conclude that the errors the district court
made in admitting the four statements were harmless.
_____________________________________________________________
82 State v. Hamilton, 827 P.2d 232, 240 (Utah 1992).
83
Id. (cleaned up).
84 State v. Knight,
734 P.2d 913, 920 (Utah 1987).
85Hamilton,
827 P.2d at 240 (cleaned up); see also State v. Fahina,
2017 UT App 111, ¶ 29,
400 P.3d 1177 (“When determining whether
an alleged error was harmful, we consider such factors as the
importance of the relevant testimony, whether the testimony was
cumulative, and the overall strength of the prosecution’s case.”).
86 Knight,
734 P.2d at 920.
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IV. Mr. Green Has Not Shown That His Trial Counsel
Was Ineffective
¶103 On appeal, Mr. Green argues that his counsel was
ineffective at trial in several ways: first, for consolidating the six
cases into one; second, for entering the Tribune Stipulation and
permitting it and the documentary exhibits (M.H.’s poem and C.D.’s
essay) to go into jury deliberations; third, for not objecting to the
hearsay statements that were admitted at trial; and fourth, for not
objecting to the State’s “improper invocation of race” throughout the
trial. 87 For the reasons discussed below, we hold that Mr. Green has
not shown that his trial counsel was constitutionally ineffective.
¶104 Strickland v. Washington 88 governs a claim for ineffective
assistance of counsel. Under Strickland, the test for assessing whether
an attorney’s performance amounts to ineffective assistance of
counsel has two parts: “(1) whether counsel’s performance was
deficient in that it fell below an objective standard of reasonableness;
and (2) whether counsel’s performance was prejudicial in that there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” 89 To
_____________________________________________________________
87 Mr. Green filed a rule 23B motion concurrently with his
opening brief on appeal. In that motion, he asks that we remand this
case for an entry of findings of fact, which Mr. Green asserts is
necessary for his claims of ineffective assistance of counsel. Mr.
Green argues that his counsel was ineffective for not calling four
additional character witnesses at trial and for not objecting to
allegedly harmful racial references made throughout the trial. He
includes with his motion an affidavit from a private investigator
who interviewed the four witnesses who did not testify. Having
reviewed Mr. Green’s motion and the record before us, we
determine that the motion does not establish facts that, if true, would
have likely changed the outcome here. First, due to the nature of
what the witnesses would have testified about (Mr. Green’s
character), it is unlikely their testimony would have been anything
other than cumulative—adding nothing substantial to the case.
Second, Mr. Green makes no new arguments in his motion about the
allegedly harmful racial references; he merely reiterates what he
argues on appeal. We therefore deny Mr. Green’s rule 23B motion.
88 466 U.S. 668 (1984).
89 Menzies v. Galetka,
2006 UT 81, ¶ 87,
150 P.3d 480 (cleaned up).
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STATE v. GREEN
Opinion of the Court
determine whether Mr. Green has met his substantial burden, we
must “eliminate the distorting effects of hindsight and evaluate the
conduct from counsel’s perspective at the time.” 90 And “[b]ecause
failure to establish either prong of the test is fatal to an ineffective
assistance of counsel claim, we are free to address [Mr. Green’s]
claims under either prong.” 91
¶105 The first prong “requires showing that counsel made errors
so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” 92 “But so long
as a rational basis for counsel’s performance can be articulated, we
will assume counsel acted competently.”93 Further, there is “a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. In order to overcome this
presumption, the litigant must demonstrate that the challenged
actions cannot be considered sound strategy under the
circumstances.” 94 Thus, “[a]n ineffective assistance of counsel claim
will fail if a conceivable legitimate tactic or strategy can be surmised
from counsel’s actions.” 95
¶106 The second prong requires that Mr. Green demonstrate that
“any deficiencies in counsel’s performance were prejudicial to the
defense.” 96 “To do so, he must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” 97
A. Defense Counsel Was Not Ineffective in Moving to Consolidate
the Cases
¶107 Mr. Green argues that counsel was ineffective in moving to
consolidate the six cases. He asserts that had each case been tried
_____________________________________________________________
90 See id. ¶ 89 (cleaned up).
91 See Honie v. State, 2014 UT 19, ¶ 31,
342 P.3d 182 (cleaned up).
92 Strickland,
466 U.S. at 687.
93 State v. Mohamud,
2017 UT 23, ¶ 14,
395 P.3d 133 (cleaned up).
94 Menzies,
2006 UT 81, ¶ 89 (cleaned up).
95 State v. Moore,
2012 UT App 227, ¶ 6,
285 P.3d 809 (cleaned up).
96 Mohamud,
2017 UT 23, ¶ 14 (cleaned up).
97 Honie,
2014 UT 19, ¶ 33 (cleaned up).
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separately, he might have had a better chance of acquittal because he
could have focused on establishing reasonable doubt for one victim
at a time. But the “mere potential effect on the outcome is not
enough. Rather, the defendant must show a substantial likelihood of
a different result as a demonstrable reality and not merely as a
speculative matter.” 98 Ultimately, the right to effective assistance of
counsel “guarantees reasonable competence, not perfect advocacy
judged with the benefit of hindsight.” 99
¶108 Here, defense counsel requested that the cases be
consolidated, likely at the behest of Mr. Green. 100 And counsel may
have had logical reasons for doing so. 101 As the State pointed out,
counsel may have moved to consolidate in order to (1) attack each
woman’s credibility in more detail at trial; (2) protect Mr. Green
from the strain, embarrassment, anxiety, and expense of multiple
proceedings; (3) preserve the trust, confidence, and close working
relationship that defense counsel had with Mr. Green; or (4) increase
Mr. Green’s chances of avoiding a prison sentence by seeking a
complete acquittal of all his charges at once. We are persuaded by
the State’s rationale—some or all of these may have been legitimate
reasons for consolidation, especially where the district court had
already granted a pretrial motion that would allow all six women’s
allegations to be admitted at all six trials. Where “a rational basis for
counsel’s performance can be articulated, we will assume counsel
acted competently.” 102 As we have repeatedly stated, simply because
“a lawyer’s legitimate exercise of judgment in the choice of trial
strategy or tactics . . . [does] not produce the anticipated result,” does
_____________________________________________________________
98 State v. Nunes, 2020 UT App 145, ¶ 21,
476 P.3d 172 (cleaned
up).
99 See Yarborough v. Gentry,
540 U.S. 1, 8 (2003); see also Roe v.
Flores-Ortega,
528 U.S. 470, 481 (2000) (“The relevant question is not
whether counsel’s choices were strategic, but whether they were
reasonable.”).
100See Strickland,
466 U.S. at 691 (“Counsel’s actions are usually
based, quite properly, on informed strategic choices made by the
defendant and on information supplied by the defendant.”).
101See, e.g., State v. Prion,
2012 UT 15, ¶ 31,
274 P.3d 919 (noting
the desire to avoid the “personal strain, public embarrassment, and
expense” of multiple criminal trials (cleaned up)).
102 State v. King,
2010 UT App 396, ¶ 31,
248 P.3d 984 (cleaned up).
35
STATE v. GREEN
Opinion of the Court
not mean that counsel was ineffective. 103 So Mr. Green’s assertion
that he might have had a better chance of winning one case at a time
is insufficient to demonstrate that counsel’s consolidation was
unreasonable under the circumstances. 104 Therefore, Mr. Green’s
argument fails under the first prong of the Strickland test.
B. Defense Counsel Was Not Ineffective in Agreeing to the Tribune
Stipulation or in Permitting the Documentary Exhibits to
Go into Jury Deliberations
¶109 Mr. Green argues that counsel was ineffective in agreeing to
the Tribune Stipulation and allowing it and the documentary
exhibits to accompany the jury into its deliberations. He asserts that
because the stipulation is hearsay, counsel should have objected to it
under rule 802 of the Utah Rules of Evidence. He also contends that
because the documentary exhibits “were effectively a transcript of
the women’s trial testimony,” they should not have been allowed to
accompany the jury into its deliberations. 105 But neither of these
arguments is persuasive. Like defense counsel’s decision to
consolidate the cases, here, “a conceivable legitimate tactic or
strategy can be surmised from counsel’s actions” 106 in agreeing to the
Tribune Stipulation. One of the prominent arguments in Mr. Green’s
defense was that the Tribune Articles influenced and even prompted
the victims’ allegations. So providing the jury with details of the
Tribune Articles may have been part of a legitimate strategy defense
counsel envisioned.
¶110 As to the documentary exhibits, neither M.H.’s poem, C.D.’s
essay, nor the Tribune Stipulation were transcripts—they were not
“deposition testimony,” “testimony given under oath,” or statements
made “at a prior proceeding.” 107 Instead, they were all “received as
_____________________________________________________________
103 State v. Buel, 700 P.2d 701, 703 (Utah 1985) (cleaned up).
104See, e.g.,
id. (“Defendant has failed to establish that defense
counsel’s strategy in consolidating the two charges for trial was
anything other than a ‘legitimate exercise of judgment.’”).
105 See Wyatt v. State,
2021 UT 32, ¶ 19 n.17, 493 P.3d (“The
transcripts of deposition testimony and of testimony given under
oath at a prior proceeding are not received as exhibits and do not go
back with the jury.”).
106 Moore,
2012 UT App 227, ¶ 6 (cleaned up).
107 Wyatt,
2021 UT 32, ¶19 n.17.
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STATE v. GREEN
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exhibits.” 108 And because “the jury may take with [it] . . . all exhibits
which have been received as evidence,” 109 there was no reason for
defense counsel to object to their accompanying the jury into its
deliberations.
¶111 In other words, we are not convinced that allowing the
Tribune Stipulation into evidence or permitting the documentary
exhibits to go into jury deliberations 110 was objectively unreasonable.
So we cannot say the court abused its discretion in allowing them to
accompany the jury into its deliberations, and Mr. Green’s
arguments fail under the first prong of the Strickland test.
C. Defense Counsel Was Not Ineffective in Failing to Object to the Four
Hearsay Statements
¶112 Mr. Green argues that counsel was ineffective in failing to
object to the hearsay testimony presented at trial. As discussed
above, we have already concluded that the district court’s errors in
admitting the four inappropriate hearsay statements were harmless.
As such, we need not reach the question of whether defense counsel
acted deficiently for failing to object to their admission. 111 So Mr.
Green’s argument in this regard fails.
D. Defense Counsel Was Not Ineffective in Failing to Object to the Alleged
Improper Racial Theme
¶113 Mr. Green argues that counsel should have objected to the
State’s crafting of an impermissible racial theme at trial. He contends
that the State “elicited impermissible testimony about race and
painted a picture of the women and [Mr. Green] that invoked racial
stereotypes.” Mr. Green references three specific incidents to support
this assertion. But, for the reasons discussed below, we are not
persuaded by Mr. Green’s reasoning.
_____________________________________________________________
108 Id.
109 UTAH R. CRIM. P. 17.
110See Wyatt,
2021 UT 32, ¶ 19 (stating that Utah law “expressly
authorizes all exhibits to go back with the jury subject to the court’s
broad discretion”).
See Ross v. State, 2019 UT 48, ¶ 94 n.12,
448 P.3d 1203 (“Because
111
we conclude that [Petitioner] was not prejudiced by his trial
counsel’s failure . . . , we do not address the issue of whether his trial
counsel’s performance was deficient.” (cleaned up)).
37
STATE v. GREEN
Opinion of the Court
¶114 First, M.H. testified that after Mr. Green raped her, he said,
“he really likes black girls because they are sassy, and if you try to
have sex with them, you can’t.” The record does not support Mr.
Green’s assertion that the State used this testimony to craft an
improper racial theme. According to the record, Mr. Green—not
M.H.—was the one who purportedly made the racial comment; M.H.
merely repeated it. The record also suggests that the State elicited
this and other statements through a series of questions aimed at
portraying Mr. Green as a manipulator, where the focus of the
inquiry was not on race but instead on M.H. having told Mr. Green
repeatedly that she did not want to have sex with him. And the State
never suggested that Mr. Green’s race was a factor the jury should
consider in its deliberations. So defense counsel was not ineffective
in declining to object to this testimony.
¶115 Second, A.P. testified that due to the stress and trauma
caused by the rape, she developed an auto-immune disorder, as well
as persistent heart, stomach, kidney, and brain issues. She further
testified that she is no longer able to live alone, avoids visiting USU,
abstains from traveling to the Logan or Brigham City areas, and has
a difficult time being “around black men at all” because when she
does, she has a “full-on panic attack.” Again, the record does not
support Mr. Green’s assertion that the State used this testimony to
craft an improper racial theme. Instead, the record indicates that the
State wanted the jury to know that A.P. had developed PTSD and
had suffered physically, mentally, and emotionally because of the
rape. So defense counsel was not ineffective in declining to object to
these statements.
¶116 Third, at trial, the State used adjectives such as “young,”
“naïve,” and “innocent” to describe the six women. And in its
opening and closing arguments, the State described Mr. Green as a
“big, old, fast linebacker” (once in opening argument), a “wolf in
sheep’s clothing” (once in opening argument and once in closing
argument), and someone who took women “back to his lair” (twice
in closing argument). But nothing in the record before us indicates
that the first reference—that Mr. Green was “a big, old, fast
linebacker”—had anything to do with Mr. Green’s race. And the
references Mr. Green describes as being “animalistic”—that Mr.
Green was a “wolf in sheep’s clothing” and had a “lair”—were
limited in number and occurred almost exclusively in the State’s
closing argument. In other words, these stray references never
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STATE v. GREEN
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developed into any clear racial theme. So it was not unreasonable for
defense counsel to choose not to object to them, particularly where
doing so might not have been worthwhile in a tactical sense.112
Therefore, the record before us indicates that defense counsel was
not ineffective in declining to object to these comments. Accordingly,
we decline to overturn the jury’s verdict.
V. Mr. Green Has Not Established Cumulative Error
¶117 Mr. Green contends that the cumulative error doctrine
requires reversal due to the aggregated prejudicial effects of the
errors alleged. Under that doctrine, a reviewing court will reverse a
jury verdict
only if the cumulative effect of the several errors
undermines confidence that a fair trial was had. If,
however, we determine that a defendant’s claims do
not constitute errors on the part of the trial court, then
it follows that the requirements of the cumulative error
doctrine are not met. 113
Here, we have concluded that the district court’s only errors—
admitting the four hearsay statements—were harmless.
Additionally, we have determined that counsel was not ineffective.
Accordingly, there are not multiple errors to cumulate, and Mr.
Green’s cumulative error claim necessarily fails. 114
Conclusion
¶118 Because the doctrine of chances has proven to be difficult to
understand and apply, we abandon it in favor of a plain-text
application of the Utah Rules of Evidence. Under the rules of
evidence, the district court in Mr. Green’s case did not abuse its
discretion in admitting the other-acts evidence.
_____________________________________________________________
112See Steven Lubet, Objecting, 16 AM. J. TRIAL ADVOC. 213, 219–20
(1992) (“[C]ounsel must evaluate the tactical situation in order to
determine whether the objection is worth making.”).
113 State v. Killpack, 2008 UT 49, ¶ 56,
191 P.3d 17 (cleaned up).
114 See State v. Glasscock,
2014 UT App 221, ¶ 34,
336 P.3d 46
(“Having found no error, [Petitioner’s] cumulative error claim
fails.”).
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STATE v. GREEN
Opinion of the Court
¶119 Four of the out-of-court statements challenged by Mr. Green
fall outside the hearsay exceptions and exemptions of our rules of
evidence. But because the evidence was overwhelming, and the four
inadmissible statements were merely cumulative, the district court
did not abuse its discretion in admitting them. Mr. Green’s
ineffective assistance of counsel and cumulative error claims also
fail.
¶120 We affirm Mr. Green’s convictions.
40
