This opinion is subject to revision before final
publication in the Pacific Reporter
2024 UT 27
IN THE
SUPREME COURT OF THE STATE OF UTAH
MICHAEL W. THOMPSON,
Appellee,
v.
STATE OF UTAH,
Appellant.
No. 20220949
Heard March 4, 2024
Filed August 1, 2024
On Direct Appeal
Third District, Salt Lake County
The Honorable Su Chon
No. 170901627
Attorneys:
Robert S. Clark, David C. Reymann,
Austin J. Riter, Rachel L. Wertheimer, Jensie L. Anderson,
Jennifer Springer, Salt Lake City, for appellee
Sean D. Reyes, Att’y Gen., Erin Riley, Asst. Att’y Gen.,
John J. Nielsen, Special Asst. Solic. Gen., Andrew F. Peterson,
Deputy Solic. Gen., Salt Lake City, for appellant
JUSTICE POHLMAN authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE PETERSEN,
JUSTICE HAGEN, and JUDGE HALL joined.
Having recused himself, CHIEF JUSTICE DURRANT does not
participate herein; JUDGE CRAIG HALL sat.
THOMPSON v. STATE
Opinion of the Court
JUSTICE POHLMAN, opinion of the Court:
INTRODUCTION
¶1 In 2008, a jury convicted Michael W. Thompson of two
counts of forcible sodomy. Thompson appealed his conviction,
contending his counsel was constitutionally ineffective, and the
court of appeals agreed. It reversed Thompson’s conviction and
remanded for a new trial. After the State elected not to retry
Thompson, the district court dismissed the case against him with
prejudice. Thompson was released after serving several years in
prison.
¶2 A few years after his release, Thompson petitioned the
court for a factual innocence determination under the factual
innocence part of the Post-Conviction Remedies Act (PCRA). 1 He
asserted that newly discovered material evidence, when viewed
with the trial evidence, proved his innocence. After a hearing, the
post-conviction court concluded that Thompson had clearly and
convincingly established his factual innocence. The State appeals
that determination.
¶3 The State contends that the post-conviction court
misinterpreted the factual innocence statute to allow the court to
base its innocence determination on more than the newly
discovered evidence. The State asserts that the statute requires an
innocence determination to be based upon the newly discovered
evidence and that the new evidence Thompson introduced, even if
credible, did not demonstrate his innocence.
¶4 We agree with the State. Under the plain language of the
factual innocence statute, a determination of factual innocence
must be based on newly discovered evidence, not evidence that
was available at trial. And here, Thompson’s newly discovered
evidence does not clearly and convincingly establish his factual
innocence. Accordingly, we reverse.
BACKGROUND
¶5 In August 2002, Michael Thompson, a thirty-two-year-old
interstate truck driver living in Wisconsin, drove with a friend
(Friend) to Utah for work. During this trip, Thompson and Friend
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1 This part of the Post-Conviction Remedies Act, sections 78B-9-
401 to -405, is titled “Postconviction Determination of Factual
Innocence.” UTAH CODE § 78B-9-401. For simplicity, we refer to it
throughout this opinion as the factual innocence statute.
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Opinion of the Court
spent two nights in Salt Lake City with Thompson’s family. Later,
Thompson’s half-sister, A.T., reported to police that Thompson had
sexually abused her. The State charged Thompson with two counts
of forcible sodomy “[i]n or about August, 2002, in Salt Lake
County.”
Trial
¶6 At trial, A.T. testified that she was sixteen years old when
Thompson and Friend visited her and her mother in Salt Lake City.
According to A.T., Thompson and Friend stayed at her mother’s
house for two consecutive nights; Thompson slept on the couch,
and Friend slept in a spare bedroom. A.T. explained that on the
second morning, Thompson came into her bedroom, and they
performed oral sex on one another. She said that after Thompson
ejaculated, he “wiped it up in a tissue and flushed it down the toilet
and went back upstairs.” A.T. further explained that she joined
Thompson upstairs a few minutes later, and they talked about
“what had happened between [them]” but “switched the
conversation” to a radio show when they heard someone stirring
from a bedroom.
¶7 Although she could not remember the exact date, A.T.
testified that the abuse occurred “right at the end of August,”
around 9:00 or 9:30 in the morning. 2 She admitted that this
testimony was inconsistent with her testimony at the preliminary
hearing, where she had estimated that the abuse occurred around
10:00 or 11:00 in the morning. She explained that she “didn’t have
a clock” in her room and “wasn’t sure what time it would have
been” “because of how high the sun was.”
¶8 A.T. also admitted that she had previously reported to the
police that “nothing happened” between her and Thompson. She
explained that she did not initially disclose the abuse to the police
because “[i]t’s hard to pull up and have flashbacks and remember
what happened.”
¶9 The defense called several witnesses to testify, including
Thompson and Friend.
¶10 Thompson denied abusing A.T. He testified that he and
Friend did not stay in Salt Lake City for two consecutive days, as
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2 Some witnesses and evidence referred to Central Daylight
Time, while others referred to Mountain Daylight Time. For
consistency, we refer to Mountain Daylight Time.
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A.T. claimed. According to Thompson, he and Friend traveled to
Salt Lake City from Wisconsin and arrived in town in the late
evening; the following morning, A.T. and Friend woke him up, and
Thompson and Friend left in the afternoon to make a delivery in
Nevada. Thompson testified that he and Friend returned to Salt
Lake City a few days later and spent a second night at Thompson’s
stepmother’s house. He testified that he and Friend woke up at 5:00
a.m., “got ready,” and “got out of there” because they had to make
a “time-sensitive” produce delivery. According to Thompson, they
were “rolling” by 5:30 a.m. Thus, Thompson testified that the
sexual abuse could not have occurred around 9:00 a.m. on the
second morning, as A.T. alleged.
¶11 Thompson introduced trucking logs to corroborate his
account. The logs showed that, on August 20, Thompson and
Friend drove approximately ten-and-a-half hours from Rapid City,
South Dakota, to Salt Lake City and arrived around 9:30 p.m. They
showed that Thompson and Friend left Salt Lake City the next day
around 2:30 p.m. And they showed that Thompson and Friend
returned to Salt Lake City on August 24 and left for Rapid City at
5:30 a.m. on August 25. According to the logs, Thompson and
Friend made the trip from Salt Lake City to Rapid City in just under
ten hours.
¶12 Thompson testified that he filled out the trucking logs
himself and that he had no “independent verification” of their
“dates and times.” He testified that federal law required him to
hold onto the logs for seven years and that he accurately recorded
his trips to avoid possible fines. He also admitted that he had access
to stacks of blank trucking logs and that he did not produce the logs
before trial in response to the State’s pre-trial discovery request.
¶13 Friend’s testimony largely corroborated Thompson’s
account of the trip. Like Thompson, Friend testified that they did
not spend two consecutive nights in Salt Lake City. He testified that
they spent one night in Salt Lake City on the way out West and one
night there on the way back to Wisconsin. According to Friend, it
was not possible for Thompson to have sexually assaulted A.T. on
either morning that they were in town because Friend did not leave
Thompson’s side for more than five minutes. Friend testified that
he slept on the floor by the couch, less than a foot away from
Thompson, and that he woke up before Thompson on both
mornings.
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Opinion of the Court
¶14 After the defense rested its case, the State called a rebuttal
witness, Randy West. A transportation specialist, West relied on a
printout from computer software that calculated the average time
it would take to drive from Rapid City to Salt Lake City. He
reported that the trip would take more than fourteen hours, not ten.
West testified that Thompson “cooked the books.” Thompson’s
counsel did not challenge West’s qualifications or call a rebuttal
expert.
¶15 During closing argument, the State acknowledged the
“minor inconsistencies” in A.T.’s testimony, but it explained that
those inconsistencies “don’t necessarily equate to reasonable
doubt. They’re just a mark of human fallibility.” The State stressed
to the jury that the crimes in question occurred “many years ago”
when A.T. was “a lot younger,” that it would be “difficult” for
anyone to recall the details of events that occurred so many years
ago, and that the timing of the sexual abuse “is really not that
significant.” The State also pointed out that A.T.’s “account of the
most significant facts was st[r]ong and believable,” and that
Thompson had “a lot at stake” and “everything to gain by lying.”
¶16 The jury convicted Thompson on both counts of forcible
sodomy.
Direct Appeal and 23B Remand
¶17 Thompson appealed his conviction, alleging his counsel
was constitutionally ineffective for, among other things, failing to
properly challenge West’s testimony. Invoking rule 23B of the Utah
Rules of Appellate Procedure, Thompson moved for a remand to
develop the factual record, which the court of appeals granted. 3
¶18 At the evidentiary hearing, the defense presented expert
testimony from Mark Hornung, the senior vice president of the
company that created the software West relied on at trial. Based on
Hornung’s testimony, the district court found that, when properly
programmed, the software conveyed that Thompson could drive
the route from Rapid City to Salt Lake City “in 10 hours” even if he
“had to slow down at times while driving.”
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3 “The purpose of a rule 23B remand is to develop new evidence
in the record, without which a defendant cannot bring his
ineffective assistance of counsel claim on appeal.” State v. Griffin,
2015 UT 18, ¶ 18,
441 P.3d 1166.
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THOMPSON v. STATE
Opinion of the Court
¶19 Ultimately, the district court found that West “lacked the
requisite knowledge, skill, experience, training and education to
qualify as an expert for the [computer] program.” The court found
West “did not generate the printout he used at trial” and “was not
physically present when the printout was generated.”
Additionally, the court found that West used the 1997 version of
the computer software, which was less reliable than the 2002
version.
¶20 The court of appeals held that Thompson’s counsel
performed deficiently by failing to investigate, challenge, or object
to West’s testimony. State v. Thompson, 2014 UT App 14, ¶ 91,
318
P.3d 1221. Based on the cumulative harm of this and other errors,
the court of appeals reversed Thompson’s conviction and
remanded the case for a new trial.
Id. The State elected not to retry
Thompson, and the district court dismissed the case with prejudice.
Petition for Factual Innocence
¶21 In 2017, Thompson filed a petition under the PCRA, see
UTAH CODE § 78B-9-402, for a determination of factual innocence
that would “give him back his name.” 4 He averred Hornung’s 23B
testimony was newly discovered evidence that, “when viewed
with all the other evidence in this matter,” established that
Thompson did not sexually abuse A.T. The post-conviction court
found that Thompson was entitled to a hearing. See id. § 78B-9-
402(9)(c)(i).
¶22 In addition to reviewing Hornung’s 23B testimony, the
court heard live testimony from A.T., Thompson, Friend, and
others. The court also reviewed the trial transcript. “Based on the
evidence presented at trial, on appeal, and in [the] Petition for
Factual Innocence,” the court concluded that Thompson
“demonstrated by clear and convincing evidence that he is
factually innocent of the crimes” charged.
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4 The factual innocence statute entitles Thompson to seek a
factual innocence determination even though the charges against
him were dismissed with prejudice. See UTAH CODE § 78B-9-402(5)
(“A person who has already obtained postconviction relief that
vacated or reversed the person’s conviction or sentence may also
file a petition under this part in the same manner and form as
described above, if no retrial or appeal regarding this offense is
pending.”).
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Opinion of the Court
¶23 In reaching its conclusion, the court observed that
Hornung’s 23B testimony negated West’s trial testimony that the
route reported on Thompson’s trucking logs could not be driven in
under ten hours. The court also rejected the State’s argument that
Hornung’s testimony “alone must form the basis” of the factual
innocence determination, stating that such evidence “is just one—
albeit an important one—consideration” in the determination. The
court found that the combination of trial and post-conviction
evidence “weighs heavily in [Thompson’s] favor as to his alibi and
credibility,” and on that basis the court concluded he was factually
innocent. The State appeals.
ISSUE AND STANDARD OF REVIEW
¶24 The State contends that the post-conviction court erred in
declaring Thompson factually innocent. It argues that the court
incorrectly interpreted the factual innocence statute to allow the
court to base its factual innocence determination on more than the
newly discovered evidence, and that the court’s faulty
interpretation led it to wrongly conclude that Thompson is
factually innocent. We review the post-conviction court’s
interpretation of the factual innocence statute for correctness.
Brown v. State, 2013 UT 42, ¶ 36,
308 P.3d 486.
ANALYSIS
¶25 The State challenges the post-conviction court’s factual
innocence determination. It contends that, because subsection 78B-
9-404(8) requires newly discovered evidence to be determinative of
a petitioner’s factual innocence, the court was wrong to base its
factual innocence determination on evidence other than Hornung’s
23B testimony. The State further maintains that under the correct
standard, Thompson’s newly discovered evidence does not
establish factual innocence.
¶26 We agree with the State that subsection 78B-9-404(8)
requires the court to base its factual innocence determination on the
newly discovered evidence. In other words, for Thompson to
satisfy the demands of the factual innocence statute, Hornung’s 23B
testimony must establish Thompson’s innocence. We also agree
with the State that Thompson has not proven factual innocence,
because Hornung’s 23B testimony does not clearly and
convincingly show that Thompson did not sexually abuse A.T.
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THOMPSON v. STATE
Opinion of the Court
I. THE FACTUAL INNOCENCE STATUTE REQUIRES THAT NEWLY
DISCOVERED EVIDENCE BE THE BASIS FOR A FACTUAL
INNOCENCE DETERMINATION
¶27 Under the factual innocence statute, a person convicted of
a felony may petition the district court for a hearing to establish
factual innocence. 5 See generally UTAH CODE §§ 78B-9-401 to -405. In
so doing, the petitioner must aver, among other things, that “newly
discovered material evidence exists that, if credible, establishes that
the petitioner is factually innocent,” id. § 78B-9-402(2)(a)(i),
meaning the petitioner did not “engage in the conduct for which
the [petitioner] was convicted,” id. § 78B-9-401.5(2)(a). “If the court
determines that the statute’s threshold requirements are met and
that ‘there is a bona fide and compelling issue of factual innocence
regarding the charges of which the petitioner was convicted,’ the
district court must hold a hearing.” Ashby v. State, 2023 UT 19, ¶ 47,
535 P.3d 828 (quoting UTAH CODE § 78B-9-402(9)(c)(i)).
¶28 Ultimately, the petitioner bears the burden of establishing
factual innocence by clear and convincing evidence. See UTAH CODE
§ 78B-9-404(1)(b). To satisfy this burden, “the petitioner must
affirmatively prove innocence of both the crime for which the
petitioner was convicted and any related criminal conduct.”
Gressman v. State, 2013 UT 63, ¶ 39,
323 P.3d 998; see also UTAH CODE
§ 78B-9-401.5(2). The court, in determining whether this burden has
been met, “shall consider, in addition to the evidence presented at
the hearing under this part, the record of the original criminal case
and at any postconviction proceedings in the case.” UTAH CODE
§ 78B-9-404(3). Critically, the court may not find that the petitioner
is factually innocent unless it determines that the petitioner did not
commit the offense of which the petitioner was convicted and “the
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5 If factual innocence is established, a petitioner is entitled to an
order of expungement and a letter from the court stating that the
petitioner was found to be factually innocent and did not commit
the crimes for which the petitioner was convicted. See UTAH CODE
§ 78B-9-405(9). And, if the petitioner was incarcerated, the
petitioner is entitled to a monetary payment from the State. See id.
§ 78B-9-405(2)(a) (requiring payment of the monetary equivalent of
the average annual nonagricultural payroll wage in Utah every
year the petitioner was incarcerated, up to a maximum of fifteen
years).
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determination is based upon the newly discovered material
evidence described in the petition.” Id. § 78B-9-404(8)(b).
¶29 The crux of the parties’ dispute here concerns the meaning
of the phrase “based upon” as it is used in subsection 404(8). The
State contends that to satisfy the statute’s requirements, the newly
discovered evidence “must be the basis for the factual innocence
finding.” According to the State, this means that while the post-conviction court must “consider” all the evidence, it is the newly
discovered evidence that “must be determinative.” In other words,
the new evidence “must be the thing that shows innocence in light
of existing evidence. It must be a complete game-changer.”
¶30 In contrast, Thompson contends that “based upon” means
merely that the newly discovered evidence must “play a role” in
the factual innocence determination. He argues that it suffices for
the newly discovered evidence to “cast[] the old evidence in a new
light.” Relying heavily on the statute’s requirement that the court
consider all the evidence, Thompson points to our decision in
Brown v. State, where we held that “the plain language of the
[factual innocence statute] allows a court to base its determination
of factual innocence on all available evidence—both old and new.”
2013 UT 42, ¶ 45,
308 P.3d 486.
¶31 To resolve this disagreement, we begin with subsection
404(8)’s plain language, with the aim of “giv[ing] effect to the intent
of the Legislature.” State v. Trujillo, 2019 UT 5, ¶ 13,
439 P.3d 588
(cleaned up). “But we do not interpret the ‘plain meaning’ of a
statutory term in isolation. Our task, instead, is to determine the
meaning of the text given the relevant context of the statute
(including, particularly, the structure and language of the statutory
scheme).” Olsen v. Eagle Mountain City,
2011 UT 10, ¶ 12,
248 P.3d
465. And we seek to “give effect to every word of a statute, avoiding
any interpretation which renders parts or words in a statute
inoperative or superfluous.” Bountiful City v. Baize,
2021 UT 9, ¶ 42,
487 P.3d 71 (cleaned up).
¶32 Subsection 404(8) provides,
The court, after considering all the evidence, may not
find the petitioner to be factually innocent unless:
(a) the court determines by clear and convincing
evidence that the petitioner did not commit one or
more of the offenses of which the petitioner was
convicted . . . ; and (b) the determination is based
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THOMPSON v. STATE
Opinion of the Court
upon the newly discovered material evidence
described in the petition . . . .
UTAH CODE § 78B-9-404(8).
¶33 Focusing first on the plain meaning of “based upon,” we
conclude that the State has the better of the arguments. For an
innocence determination to be “based upon” newly discovered
evidence, as that phrase is ordinarily understood, the newly
discovered evidence must be the “basis” or “foundation” for the
determination. See Base, MERRIAM-WEBSTER, https://
www.merriam-webster.com/dictionary/base (last visited July 16,
2024) (defining “base,” when used as a verb with on or upon, as “to
find a foundation or basis for”). The plain language does not
suggest it is enough for the new evidence to merely “play a role.”
By requiring the factual innocence determination to be “based
upon” the newly discovered evidence, the legislature has
expressed its intent that the newly discovered evidence be the
foundation of the court’s determination.
¶34 This interpretation of “based upon” is further supported
by related provisions in the factual innocence statute. Indeed,
under subsection 402(2)(a), to even receive a factual innocence
hearing, the petitioner must aver in a factual innocence petition that
“newly discovered material evidence exists that, if credible,
establishes that the petitioner is factually innocent”; that “the
specific evidence identified by the petitioner in the petition
establishes innocence”; and that “viewed with all the other
evidence, the newly discovered evidence demonstrates that the
petitioner is factually innocent.” 6 UTAH CODE § 78B-9-402(2)(a)(i),
(ii), (v). In all three instances, the newly discovered evidence is
doing the work. Even the third requirement, which anticipates that
the new evidence will be viewed with all other evidence, mandates
that the newly discovered evidence demonstrates factual
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6 Thompson did not try to satisfy this requirement in his
petition. Instead, he argued that his innocence was established by
the newly discovered evidence plus his testimony, the trucking
logs, Friend’s testimony, and A.T.’s inconsistencies and motive to
lie. His approach conflicted with the plain language of subsection
402(2) but was consistent with observations we made in Brown v.
State about the former version of the statute. See 2013 UT 42, ¶ 48,
308 P.3d 486 (interpreting the 2010 version of the factual innocence
statute); see also infra ¶¶ 34 n.7, 37.
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Opinion of the Court
innocence. Had the legislature intended the statute to work in the
way Thompson suggests, the statute presumably would have
required the petitioner to aver that, when viewed with the newly
discovered evidence, the body of evidence demonstrates that the
petitioner is factually innocent. 7
¶35 Thus, from the outset of the factual innocence process, the
legislature set the expectation that it is the newly discovered
evidence that will establish a petitioner’s innocence. To construe
subsection 404(8) as merely requiring that the new evidence “cast
the old evidence in a new light,” we would not only need to
disregard the provision’s plain language, but we would have to
conclude that the legislature designed a statutory scheme that
required more of the newly discovered evidence at the petition
stage than at the hearing. This we cannot do.
¶36 Thompson, however, pushes back on this interpretation.
He refers us to Brown, where we interpreted the factual innocence
statute and concluded that it allows a court to base its innocence
determination on “both old and new” evidence. (Quoting 2013 UT
42, ¶ 45.) Thompson acknowledges that the statute has since been
amended and that subsection 404(8) is a new addition. Still, he
invites us to view the amendment as a codification of Brown and
contends that the new language does not demand a different
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7 We recognize that in interpreting a prior version of the factual
innocence statute, we viewed section 402 differently. See Brown,
2013 UT 42, ¶ 42. In Brown, we were asked to interpret section 404
and “consider[ed] section 402 only to place section 404 in proper
context.”
Id. ¶ 40 n.22. Although we twice noted that section 402
requires a petitioner to allege that the newly discovered evidence
“establishes factual innocence,” id. ¶¶ 46, 51, we also stated that,
because the factual innocence statute did not “state that the newly
discovered evidence alone must be determinative,” section 402
“contemplate[d] that it [would] require a combination of new and
old evidence to establish factual innocence,” id. ¶ 48. We view
section 402 differently today because the legislature’s addition of
subsection 404(8) casts section 402 in a different light. As we
explain, see infra ¶ 39, section 404 now provides the “clear
directive” that was missing from the prior version of the statute, see
Brown,
2013 UT 42, ¶ 50, and this addition illuminates the
legislature’s overall intent in a way the previous version of the
statute didn’t.
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interpretation. He further challenges the State’s interpretation as
“irreconcilable” with the statute’s plain language because the
statute “explicitly and repeatedly instructs the district court to
consider all the evidence.” And he suggests that interpreting the
statute to require the post-conviction court to base its
determination of factual innocence “solely” on the newly
discovered evidence “would improperly render these provisions
superfluous.”
¶37 We begin with Brown. There, the State argued—just as it
does now—that the post-conviction court erred in basing its factual
innocence determination on a combination of newly discovered
evidence and previously available evidence. Brown, 2013 UT 42,
¶ 38. We rejected that argument, holding that “a determination of
factual innocence can be based on a combination of newly
discovered evidence and previously available evidence.” Id. ¶ 54.
To reach that conclusion, we analyzed the plain language of section
404 as it existed in 2010. 8 See id. ¶ 40 n.21.
¶38 At that time, section 404 looked much like it does today
except for one “[i]mportant[]” difference: it did not include
subsection 404(8) or its requirement that the court’s factual
innocence determination be “based upon” the newly discovered
evidence. See id. ¶ 50; UTAH CODE § 78B-9-404 (2010). Instead, the
only relevant instruction in section 404 was its directive to the court
to “consider, in addition to the evidence presented at the [factual
innocence] hearing . . . , the record of the original criminal case and
at any postconviction proceedings in the case.” UTAH CODE § 78B-
9-404(3) (2010). Section 404 did not, as it does today, prohibit the
post-conviction court from declaring the petitioner factually
innocent unless the determination “is based upon the newly
discovered material evidence described in the petition.” Compare id.
§ 78B-9-404 (2010), with id. § 78B-9-404(8) (2024). In fact, the prior
version of section 404 “never use[d] the phrase ‘newly discovered
evidence,’” nor did it “provide any direction on how much weight
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8 We issued Brown in 2013, but we interpreted the 2010 version
of the statute because that was the version that applied to Brown’s
innocence petition. See 2013 UT 42, ¶ 40 n.21. Because the
legislature amended the statute to add subsection 404(8) in 2012—
before Brown was issued—we have no basis to construe the
amendment as a codification of our analysis, as Thompson
suggests. See supra ¶ 36.
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to place on any one type of evidence.” Brown, 2013 UT 42, ¶ 50. And
this lack of direction drove our analysis in Brown.
¶39 But, as explained, the current version of the statute
provides the very direction that was missing in 2010: that a
determination of factual innocence be “based upon the newly
discovered material evidence.” UTAH CODE § 78B-9-404(8)(b). Thus,
our analysis in Brown no longer applies. Cf. State v. Robinson, 2023
UT 25, ¶¶ 23–24,
540 P.3d 614 (explaining that our caselaw
interpreting a prior version of a court rule does not govern after the
rule was amended in a material way). With this added direction,
we can no longer conclude that section 404 permits a court to base
its determination of factual innocence on a combination of newly
discovered evidence and previously available evidence. See supra
¶ 37.
¶40 Even so, Thompson resists this interpretation, asserting
that it can’t be reconciled with the statute’s explicit and repeated
instruction to the court to “consider” all the evidence. He reasons
that an interpretation requiring the post-conviction court to base its
innocence determination “solely” on the newly discovered
evidence renders superfluous the instructions to consider the rest
of the evidence. Thompson’s primary observation is well taken—
the factual innocence statute repeatedly instructs the post-conviction court to consider all the evidence. We count four
occasions. Subsection 404(3) states that, in making its factual
innocence determination, the court “shall consider, in addition to
the evidence presented at the hearing under this part, the record of
the original criminal case and at any postconviction proceedings in
this case.” UTAH CODE § 78B-9-404(3). Subsections 404(4) and
404(5)(a) each instruct the court on what to do if, “after considering
all the evidence,” it does or does not determine that the petitioner
is factually innocent. Id. § 78B-9-404(4), (5)(a). And, as mentioned,
see supra ¶ 32, subsection 404(8) details when “[t]he court, after
considering all the evidence,” may find a petitioner to be factually
innocent, UTAH CODE § 78B-9-404(8).
¶41 But we disagree with Thompson’s conclusion that the
State’s proffered interpretation of subsection 404(8) conflicts with
these provisions or renders them superfluous. The legislature’s
repeated instruction to consider all the evidence plays a significant
part in the post-conviction court’s factual innocence analysis, not
least because the record of the underlying case provides necessary
context to make sense of the new evidence. The post-conviction
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Opinion of the Court
court might not be the same court that tried the petitioner (or
accepted a guilty plea), and in such a circumstance it would be
difficult for the court to assess the import of newly discovered
evidence in a vacuum. It is the record of the original case that
imbues the new evidence with meaning. For example, if, after one
person is convicted of assault, someone else were to come forward
and confess to assaulting the victim, that newly discovered
evidence could suggest innocence on the part of the person who
was convicted. But, for the court to make that determination, it
would need to know, at the very least, whether the victim claimed
there was more than one assailant. If the victim testified that there
was only one assailant, the new evidence—if credible—would
establish innocence. If the victim testified there were two assailants,
however, the new evidence would not necessarily confirm the
petitioner’s innocence. To determine whether the new evidence
established innocence, the court would need to “consider” the
evidence already in the record.
¶42 Additionally, as we recognized in Ashby v. State, the post-conviction court is tasked with “carefully scrutiniz[ing]” the
credibility of the newly discovered evidence. 2023 UT 19, ¶¶ 60–61,
71. And that credibility assessment could be informed by other
evidence in the record. For example, in Ashby, we stated that “other
evidence [may be] relevant to whether [a] recantation [of abuse] is
credible, including the circumstances under which the original
accusations were made.” See id. ¶ 71. We observed that in assessing
the credibility of the newly discovered evidence, a post-conviction
court may need to consider, among other things, “observations by
witnesses of the recanting witness when making the initial
accusations,” “the nature and detail” of the initial accusations, and
“whether the [initial] accusations were made under oath.” See id.
(cleaned up). As this list demonstrates, the court could not fully
assess the credibility of the recantation if it was unable to
“consider” the entirety of the record. 9
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9 In Brown, we noted that “it would be strange to direct a court
to consider ‘all the evidence’ but then limit its decision to only the
pivotal new evidence, especially without giving the court any guidance
on how to determine whether a given piece of evidence is, in fact, pivotal.”
2013 UT 42, ¶ 52 (emphasis added). But section 404, as amended,
now provides that guidance, identifying the pivotal evidence as the
newly discovered evidence. See UTAH CODE § 78B-9-404(8).
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Opinion of the Court
¶43 Finally, Thompson argues that this interpretation of
subsection 404(8) “makes no sense from a practical perspective.”
He asserts that, as construed, this subsection would tie the court’s
hands and preclude it from, for instance, considering the trial
testimony of ten eyewitnesses if the defense were to introduce a
new alibi witness in a post-conviction factual innocence
proceeding. Thompson argues that under the State’s reading, “only
the testimony of the alibi witness could be considered, and the
testimony of the ten original eyewitnesses would have to be
ignored.”
¶44 Our response to Thompson’s concern is twofold. First, the
premise of his argument is flawed. Subsection 404(8), and the
factual innocence statute generally, not only permits but instructs
the post-conviction court to consider the trial testimony of the ten
eyewitnesses that Thompson contemplates. Thus, under the
statute, their testimonies couldn’t be ignored, and the court would
need to consider that evidence in evaluating whether the new alibi
evidence clearly and convincingly establishes factual innocence.
Second, it may be true that the factual innocence statute, as
amended, now requires more precision on the part of the post-conviction court because the court must ensure its determination is
based on the newly discovered evidence and not something else.
But we have no reason to believe that courts cannot separate the
old from the new, and in any event, it would not be our place to
rewrite the statute with a different design. See, e.g., State v. Herrera,
895 P.2d 359, 362 (Utah 1995) (“Th[e] delicate balancing of public
policy is better accomplished in the legislature than in the courts.”).
II. HORNUNG’S 23B TESTIMONY DOES NOT ESTABLISH THOMPSON’S
FACTUAL INNOCENCE
¶45 Under the factual innocence statute, Thompson bore the
burden to present newly discovered evidence that would clearly
and convincingly show that he did not sexually assault A.T. in
August 2002 in Salt Lake City. See UTAH CODE § 78B-9-404(1)(b).
Thompson does not contend that Hornung’s 23B testimony, on its
own, demonstrates his factual innocence. Instead, he asserts—as he
did before the post-conviction court—that Hornung’s 23B
testimony, “along with all the other evidence,” clearly and
convincingly shows his factual innocence. His view was, and still
is, that Hornung’s testimony casts “old evidence in a new light” by
showing that the trucking logs introduced at trial “accurately
reflect [Thompson’s] whereabouts for the time specified therein.”
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THOMPSON v. STATE
Opinion of the Court
¶46 Following Thompson’s lead, the post-conviction court
rejected the State’s argument that Hornung’s 23B testimony “alone
must form the basis” of its factual innocence determination. It
found that Hornung’s 23B testimony undermined West’s
testimony at trial that the route on Thompson’s trucking logs could
not have been completed in the time recorded. And it found that
the combination of trial and post-conviction evidence “weigh[ed]
heavily in [Thompson’s] favor as to his alibi and credibility.”
¶47 Both Thompson’s position and the court’s ruling conflict
with subsection 404(8). As discussed, see supra ¶¶ 29–39, subsection
404(8) requires newly discovered evidence to be determinative. A
determination of a petitioner’s factual innocence cannot be based
upon trial evidence, even if that trial evidence has been cast “in a
new light.” Thus, while it was proper for the court to consider
Thompson’s testimony and his trucking logs, the court could not
base its factual innocence determination on that evidence. And it is
clear that Hornung’s 23B testimony does not establish Thompson’s
factual innocence.
¶48 Hornung’s 23B testimony impeached the trial testimony of
West, who called the reliability of Thompson’s trucking logs into
question. In so doing, Hornung mitigated the damage West
inflicted on Thompson’s credibility and the credibility of his
trucking logs. 10 Yet Hornung’s testimony did not, and could not,
establish that the logs were accurately or contemporaneously kept,
that Thompson traveled on the date and in the timeframe reported
in his log, or that Thompson did not sexually assault A.T. in August
of 2002. At best, Hornung’s testimony demonstrated that
Thompson’s alibi was plausible: that he could have traveled from
Rapid City to Salt Lake City in ten hours, as recorded in his log. But
Hornung’s testimony did not establish that Thompson did not
“engage in the conduct for which [he] was convicted.” UTAH CODE
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10 The State asserts that Hornung’s 23B testimony cannot
establish factual innocence for the additional reason that “it is mere
impeachment evidence.” It cites section 402 of the factual innocence
statute, which requires a petitioner to aver at the petition stage that
“the material evidence is not merely impeachment evidence.”
UTAH CODE § 78B-9-402(2)(a)(iv). We have no need to address
whether Hornung’s testimony constitutes mere impeachment
evidence because Hornung’s testimony, however characterized,
cannot establish Thompson’s factual innocence.
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Opinion of the Court
§ 78B-9-401.5(2)(a). Accordingly, we must reverse the post-conviction court’s factual innocence determination.
CONCLUSION
¶49 Under the plain language of Utah Code subsection 78B-9-
404(8), a post-conviction court’s factual innocence determination
must be based upon newly discovered evidence. On its own,
Hornung’s 23B testimony does not establish Thompson’s factual
innocence. It could neither confirm nor deny Thompson’s
whereabouts, and thus it could not clearly and convincingly
establish that Thompson did not sexually abuse A.T. in August
2002. The post-conviction court erred in basing its factual innocence
determination on Thompson’s testimony and trucking logs, which
were available at trial, rather than on Hornung’s 23B testimony.
Accordingly, we reverse.
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