State v. Estes

                THE UTAH COURT OF APPEALS

                          STATE OF UTAH,
                            Appellee,
                                v.
                          RYAN A. ESTES,
                            Appellant.

                             Opinion
                         No. 20230086-CA
                      Filed January 24, 2025

         Second District Court, Farmington Department
              The Honorable Michael D. DiReda
                         No. 211701922

       Gregory W. Stevens (briefing), Freyja Johnson, Emily
       Adams, and Jessica Hyde Holzer (argued), Attorneys
                          for Appellant
              Derek E. Brown and Michael Palumbo,
                     Attorneys for Appellee

  JUDGE DAVID N. MORTENSEN authored this Opinion, in which
    JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred.

MORTENSEN, Judge:

¶1      Ryan A. Estes sexually abused his stepdaughter in an
initial encounter, and then he continued to abuse both his
stepdaughter and daughter. Estes appeals his conviction related
to this initial encounter, arguing that the district court should not
have admitted evidence of the further abuse because the
admission of the evidence violated rule 403 of the Utah Rules of
Evidence—that the evidence was substantially more unfairly
prejudicial than it was probative. Estes also asserts that there was
insufficient evidence to support the verdict. We reject these claims
and affirm.
                           State v. Estes


                        BACKGROUND

¶2      When Estes married his wife (Wife), they both had children
from prior relationships. Estes had a daughter, Kate. 1 Wife had a
daughter—Beth—and a son. When the abuse began, the family
lived in Clinton, a city in Davis County. Wife’s children would
switch between Wife and their father every week. Kate would
visit too, as her schedule dictated. In 2015, Estes and Wife moved
to Roy, a city in Weber County.

¶3     Though Beth was not certain of the exact year that the
abuse began, she distinctly remembered the first incident as
having taken place in the Clinton home. Beth testified that she was
alone in the living room with Estes. She remembered Wife being
gone and her siblings rollerblading outside. Beth had been outside
with them but had come inside to get something. That was when
Estes “grabbed [her] hand” and “pulled [her] on top of him.” He
pulled her atop his lower waist with her legs straddling him. She
recalled that he grabbed her hips and moved her back and forth
so that her vagina rubbed against his hard penis with only their
clothes separating them. Beth remembered feeling scared and
helpless but did not tell anyone about the abuse at that point.

¶4     The abuse continued after the family had moved to the Roy
home. Beth recalled an incident in the Roy home where Estes
repeated the same pattern of abuse that had occurred in the
Clinton home. This time Estes used one hand to touch Beth under
her shirt but over her bra while his other hand kept her on top of
him. During this incident Estes also attempted to reach his hand
down Beth’s pants, but she was successful in deterring his
attempt.




1. We use pseudonyms for both Estes’s daughter and
stepdaughter.


 20230086-CA                     2               

                           State v. Estes


¶5     Beth recalled another incident where she and Estes were
alone in the kitchen. On that occasion, Estes “pulled [her] into
him” and “started kissing [her]” and touching her under her shirt.

¶6     On another occasion, Beth recalled Estes forcing her to
touch his penis. The two were sitting in the living room watching
a show when Estes “made [her] come sit by him” and “put a
blanket over” the two of them. He then grabbed her hand and
forced her to touch his penis over his clothes.

¶7    Beth recalled two more times in the Roy home when Estes
made her straddle him and repeated the same pattern of abuse.
During the first of these incidents, the abuse stopped when Beth’s
grandparents knocked on the door and interrupted the encounter.
During the final incident, Beth remembered wearing a green dress
and that only her underwear separated her from Estes’s clothing.

¶8     After that, Beth “distanced [herself] from [Estes].” She took
precautions to avoid being home alone with him. From that point
on, Beth recalls the situation at home improving.

¶9     Kate also testified that she had suffered sexual abuse at the
hands of Estes “at the Roy house.” Kate testified that on one
occasion she woke in the middle of the night to Estes’s “hand on
[her] thigh” rubbing “the inner crease of [her] leg.” She testified
that his hand then “moved up to [her] stomach” but that she
“pushed his hand away, and . . . told him to stop” and “[h]e left.”
She testified that on “[t]hree or four different occasions,” Estes
“put his hands on [her] butt” as she lay on the couch. Kate testified
that on another occasion Estes “[hugged her] from behind” and
rested his hands on her breasts. Kate testified that after this
happened, she stopped going to Estes’s house.

¶10 Kate testified that once she stopped going to Estes’s house,
she “turned into a troubled kid.” To avoid being forced to return
to Estes’s house, Kate ultimately disclosed the abuse to her
mother. This disclosure led to an investigation.


 20230086-CA                     3                

                           State v. Estes


¶11 As a part of that investigation in 2016, Beth was
interviewed at the Children’s Justice Center (CJC). There, she was
asked whether anyone had been inappropriately touching her.
During that interview she stated that nothing had been going on
and no one had been touching her. At trial she testified that
someone had in fact been touching her but that at the time of the
CJC interview, she was scared “that [no] one would believe [her]”
and “that something might happen in [their] family.”

¶12 Years later, Wife discovered inappropriate Facebook
messages between Beth and a boy. When Beth’s father found out
about this, he and Beth’s stepmother went through Beth’s room,
where they discovered her journal. In the journal was an entry
from 2021 that discussed how she “hated [Estes] for the things . . .
that he had done to her.” When Beth’s father confronted Beth
about the entries, she reluctantly disclosed the abuse. Eventually
the police were involved, and Beth was taken back to the CJC for
another interview in 2021. In this second interview, Beth
acknowledged that she had lied in her first CJC interview, and she
chronicled the entirety of the abuse. In that interview, Beth said
that the initial abuse happened “like the summer before 6th
grade” and that it happened “at the Clinton house.”

¶13 Estes was charged in Davis County with five counts of
aggravated sexual abuse of a child. However, upon Estes’s
motion, the district court dismissed the four Weber County
charges for improper venue. The dismissal left only the initial
instance of Beth’s abuse in Davis County—one count of
aggravated sexual abuse of a child.

¶14 Before Estes’s bench trial, the State gave notice of its intent
to introduce evidence under rule 404(c) of the Utah Rules of
Evidence. See Utah R. Evid. 404(c)(1) (“In a criminal case in which
a defendant is accused of child molestation, the court may admit
evidence that the defendant committed any other acts of child
molestation to prove a propensity to commit the crime charged.”).



 20230086-CA                     4                

                           State v. Estes


The State argued that the evidence was specifically admissible
under rule 404(c) as other acts of child molestation. The court
permitted Kate’s and Beth’s testimony of other acts of child
molestation under rule 404(c). At the close of evidence, Estes
moved for a directed verdict, arguing that the evidence presented
was not legally sufficient to establish the offense charged. The
court denied Estes’s motion, and Estes was convicted of one count
of aggravated sexual abuse of a child based on the initial incident
involving Beth in the Clinton home.


            ISSUES AND STANDARDS OF REVIEW

¶15 Estes appeals his conviction on two grounds. First, he
asserts that “the district court committed reversible error by
admitting evidence of other, alleged, uncharged bad acts
involving” Kate. 2 “A trial court’s decision to admit evidence
under rule 403 of the Utah Rules of Evidence is reviewed for an
abuse of discretion.” State v. Fedorowicz, 

, 

 (cleaned up). We grant significant deference to a lower
court’s determination to allow or exclude evidence and review its
decision for abuse of discretion. State v. Cuttler, 

,

. A trial court abuses its discretion “if its decision to
admit or exclude evidence is beyond the limits of reasonability.”

 (cleaned up).




2. In Estes’s initial brief, he argued that evidence of other
uncharged acts against both Beth and Kate were inadmissible
under rule 403, rule 404(b), and rule 404(c) of the Utah Rules of
Evidence. However, at oral argument, Estes conceded that (1) rule
404(b) is not at issue in this case, (2) the plain language of rule
404(c) does not limit the rule to prior acts, and (3) evidence of
other acts against Beth was admissible. Thus, the only remaining
issue is whether the evidence of acts against Kate should have
been excluded under rule 403.


 20230086-CA                     5                

                            State v. Estes


¶16 Second, Estes argues that the district court committed
reversible error when it denied his motion challenging the
sufficiency of the evidence based on his assertion that the
evidence was inherently improbable. As to whether the district
court’s verdict was supported by sufficient evidence, we will
reverse a fact finder’s verdict only if “the evidence is sufficiently
inconclusive or inherently improbable such that reasonable minds
must have entertained a reasonable doubt that the defendant
committed the crime for which he or she was convicted.” State v.
Jok, 

, 

 (cleaned up).


                            ANALYSIS

                I. Other Acts to Prove a Propensity

¶17 Estes first alleges that the district court abused its
discretion when it admitted evidence of his other acts against
Kate. Estes argues that although the evidence may be admissible
under rule 404(c) of the Utah Rules of Evidence, it is inadmissible
under rule 403 because the evidence is substantially more unfairly
prejudicial than it is probative.

¶18 Under rule 404(c), when “a defendant is accused of child
molestation, the court may admit evidence that the defendant
committed any other acts of child molestation to prove a
propensity to commit the crime charged.” Utah R. Evid. 404(c)(1).
Under the plain language of this rule, Kate’s testimony about
Estes’s acts against her are admissible as evidence of “other acts
of child molestation.”

¶19 However, to be admissible, all evidence must also satisfy
rule 403. See State v. Ring, 

, 

 (“[B]efore
the court admits [rule 404(c)] evidence, it must weigh the
evidence’s probative value against its potential for prejudice
under rule 403.”). Even otherwise admissible evidence can be
excluded under rule 403 “if its probative value is substantially



 20230086-CA                      6                

                            State v. Estes


outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”
Utah R. Evid. 403.

¶20 In the past, Utah courts conducted a rule 403 analysis in the
rule 404(c) context by mechanistically applying the factors from
State v. Shickles, 

 (Utah 1988), abrogated on other grounds
by State v. Doporto, 

 (Utah 1997). In his brief, Estes
follows this pattern and strictly applies the Shickles factors.
However, at oral argument, Estes acknowledged that a rigid
reliance on the Shickles factors is misplaced under current law. 3
The Utah Supreme Court has held that while some of the Shickles
factors “taken individually” might bear on a rule 403 analysis, no
court should rigidly “moor its rule 403 analysis entirely and
exclusively to all of the Shickles factors.” State v. Cuttler, 

, 

. Instead, courts analyze the probative value
of evidence and weigh it against the alleged unfair prejudice. It is


3. Indeed, in State v. Thornton, 

, 

, our
supreme court repudiated the prior requirement of a “scrupulous
examination” of the Shickles factors. Id. ¶ 53. In State v. Lowther,

, 

, abrogated on other grounds by State v.
Green, 

, 

, the court held that a mechanical
application of these factors is error. Id. ¶ 45. And at least one
member of this court has noted that in the rule 404(c) context, it
makes little sense to apply factors developed specifically to guard
against propensity considerations to a rule specifically developed
to invite consideration of propensity evidence. State v. Frederick,

, 

 (Mortensen, J., concurring).
Although it has been suggested that the advisory committee
note’s direction that trial courts “should . . . consider” the Shickles
factors is wrong and a misdirection, 

 the note lives on to this
day, see Utah R. Evid. 404 original advisory committee’s note. We
encourage the advisory committee to remedy this error and
redraft its note to be consistent with present-day law.


 20230086-CA                      7                 

                            State v. Estes


the objecting party’s burden to demonstrate that the evidence is
unfairly prejudicial such that it substantially outweighs its
probative value. State v. Smith, 

, 

 (“Rule 403 is an inclusionary rule. And it therefore imposes
the heavy burden not only to show that the risk of unfair prejudice
is greater than the probative value, but that it substantially
outweighs the probative value.” (cleaned up)).

¶21 When conducting this analysis in a rule 404(c) context, the
“evidence’s tendency to prove the defendant’s propensity for
child molestation can no longer be assessed on the ‘prejudice’ side
of the rule 403 balancing test.” State v. Fredrick, 

,
¶¶ 44–45, 

. Rather than weighing against a finding of
admissibility, the evidence of propensity is the exact reason rule
404(c) evidence is admitted. “Thus, in order for rule 404(c)
evidence to be unfairly prejudicial, the defendant must be able to
show something other than the propensity nature of the evidence
that weighs on the prejudice side of the equation.” Id. ¶ 46; see also
State v. Modes, 

, 

 (stating that to
“establish prejudice in a rule 404(c) context, a defendant would
have to show that the evidence demonstrates something apart
from the act of sexual molestation of a child”).

¶22 Here, Estes argues that there are two reasons—distinct
from the evidence’s tendency to prove propensity—that the
evidence should not have been admitted. First, Estes argues that
the facts surrounding Kate’s allegation are insufficiently
probative such that their admission is unfairly prejudicial.
Second, he argues that the evidence is unfairly prejudicial because
it bolsters the credibility of Beth as a witness.

¶23 First, Estes argues that because there was insufficient
evidence to support Kate’s allegation, the evidence was minimally
probative and, by definition, unfairly prejudicial. For example,
Estes points to the fact that Kate’s allegations were never
prosecuted. Rule 404(c), however,



 20230086-CA                      8                

                           State v. Estes


       does not require that a defendant be convicted of a
       crime for the associated other-acts evidence to be
       admissible. That is, the ultimate legal disposition of
       a previous act of child molestation is largely
       irrelevant to whether the evidence is admissible
       under rule 404(c). What is relevant is whether the
       defendant committed other acts that show his
       propensity to molest children.

Modes, 

. In fact, the standard of proof for a
conviction and for the admissibility of evidence are substantially
different. To convict a defendant of a crime, every element of the
offense must be proved beyond a reasonable doubt. But to admit
evidence under rule 404(c), that evidence must support only a
finding that a fact exists; in other words, that fact must be
supported by a preponderance of the evidence. Cf. State v. Lucero,

, 

 (“In the context of rule 404(b),
similar act evidence is relevant only if the jury can reasonably
conclude by a preponderance of the evidence that [1] the act
occurred and that [2] the defendant was the actor.” (cleaned up)
(quoting Huddleston v. United States, 

 (1988))),
abrogated on other grounds by State v. Thornton, 

, 

; see also Utah R. Evid. 104(b) (“When the relevance of
evidence depends on whether a fact exists, proof must be
introduced sufficient to support a finding that the fact does
exist.”). Here, Kate’s testimony provided sufficient evidence to
find by a preponderance of the evidence that Estes molested her.

¶24 Estes next asserts that Kate’s testimony should not have
been admitted because it was unfairly prejudicial in that it
bolstered Beth’s credibility. But Estes’s “position is untenable,
because such selective admission of evidence would run contrary
to the very purpose of rule 404(c)”—to allow evidence of a
propensity to molest children. See Modes, 

.
The district court could not admit evidence sufficient to
demonstrate that Estes had a propensity to molest children



 20230086-CA                     9                

                           State v. Estes


without necessarily bolstering Beth’s credibility. Kate’s testimony
bolsters Beth’s credibility only because it establishes Estes’s
propensity. It cannot do one without the other. Admitted
propensity evidence will inevitably make a victim’s story more
believable; that is the point of propensity evidence.

¶25 The bolstering of Beth’s credibility is intrinsic to Estes’s
propensity, and we detect no other unfair prejudice that rule 403
(in the rule 404(c) context) should prevent. Kate’s testimony did
not include any unduly inflammatory, “unnecessary,” or
“emotionally charged details.” Id. ¶ 16 (cleaned up). It did not
include any “technicolor details, beyond its tendency to show a
propensity for child molestation.” Fredrick, 

.
Her story mirrored Beth’s, and the details were perhaps even
more muted than those in Beth’s version.

¶26 When we compare the unfair prejudice articulated by Estes
to the probative value of Kate’s testimony, we conclude that the
former does not substantially outweigh the latter. It is not clear to
us that there was some unfair prejudice created by Kate’s
testimony other than the fact that it tended to prove Estes’s
propensity to molest children. The admission of propensity
evidence is the very purpose of rule 404(c), and showing such a
propensity cannot alone be characterized and weighed as unfair
prejudice. Because the probative value of Kate’s testimony is not
substantially outweighed by unfair prejudice, the district court
did not abuse its discretion in admitting the evidence.

                     II. Physical Impossibility

¶27 Estes next claims that the district court committed
reversible error when it denied his motion challenging the
sufficiency of the evidence. He states specifically that this court
“should reverse the convictions entered against Estes, based on
the inherent improbability of the testimony” of Beth. (Emphasis
added.) At oral argument, Estes clarified that his argument was
that Beth’s testimony described a circumstance that was


 20230086-CA                     10               

                            State v. Estes


“physically impossible.” 4 “Testimony is physically impossible
when what the witness claims happened could not have possibly
occurred. If [the witness] had testified that the molestation
occurred on the moon, her testimony would have been inherently




4. At oral argument, Estes distinguished his argument as a
physical impossibility claim, not an inherently improbable claim.
However, the concept of physical impossibility almost always
shows up in our case law in the context of an inherent
improbability claim. If what Estes is really making is an inherent
improbability argument, it might also fail due to lack of
preservation. A claim that a witness’s testimony is inherently
improbable stems from our supreme court’s decision in State v.
Robbins, 

, ¶¶ 14–21, 

. A Robbins claim “that
a particular witness’s testimony is inherently improbable is not
the same as a claim that the State’s evidence is insufficient.” State
v. Skinner, 

, 

. And while a Robbins
claim “may be a component of an insufficiency challenge,” “not
every insufficiency challenge raises a Robbins issue.” State v. Doyle,

, 

. Based on Estes’s motions,
“the district court never would have known that [Estes] wanted it
to assess . . . inherent improbability,” and thus the district court
“did not have an opportunity to rule on the Robbins issue.” State
v. Stricklan, 

, 

. This may be a close
call on preservation. While Estes did not use the specific words
“inherent improbability,” he did discuss the concept of physical
impossibility below. Thus, it is difficult to say whether Estes’s
“general” sufficiency motions preserved the “specific inherent
improbability” claim he raises on appeal. See State v. Lewis, 

, ¶ 45 n.5, 

. It doesn’t matter though,
because even on the merits, Estes’s physical impossibility claim
fails.


 20230086-CA                     11                

                          State v. Estes


improbable because it is physically impossible for that to have
occurred.” State v. Robbins, 

, 

. 5

¶28 At oral argument on appeal, Estes noted that Beth testified
both at trial and during her second CJC interview that the abuse
happened during the summer before her sixth grade year—the
summer of 2016. However, Beth also testified that the abuse
happened in the Clinton home. It is undisputed that the family
moved from the Clinton home to the Roy home during 2015.
According to Estes, the combination of these facts makes Beth’s
testimony physically impossible: because the family did not live
in the Clinton home in 2016, it would have been physically
impossible for Beth to be abused in the Clinton home in 2016.

¶29 Estes asserts that Beth has been adamant about the abuse
happening during the summer of 2016. At oral argument,
appellate counsel asserted that she “never varies from that story”




5. Assuming that Estes’s physical impossibility claim is just a
variation of an inherent improbability claim, our analysis follows
a clearly established procedure:
        First, we must analyze the evidence that [Estes]
        claims is inherently improbable and determine
        whether the challenged piece of evidence is of such
        a poor quality that it should be disregarded. If we
        determine that the challenged testimony is
        inherently improbable, we then determine if
        sufficient evidence remains under which a
        reasonable jury could have convicted. . . . On the
        other hand, if we determine that the challenged
        evidence is not inherently improbable, our
        sufficiency-of-the-evidence analysis will include the
        challenged evidence.
State v. Barnes, 

, ¶¶ 19–20, 

, cert.
denied, 

 (Utah 2024) (cleaned up).


 20230086-CA                   12               

                          State v. Estes


and that Beth’s testimony was “unequivocal” that this happened
the summer before her sixth grade year.

¶30 But at trial, Beth testified that she didn’t “remember dates
and times.” When she did give a date during her 2021 CJC
interview, she said it was “like the summer before sixth grade.”
(Emphasis added.) On cross-examination she confirmed that she
had made that statement during her 2021 CJC interview. But
outside of her initial CJC interview, Beth never volunteered a
date. She confirmed the cross-examining attorney’s references to
2016, and she referenced her earlier testimony at the CJC. But
when asked directly whether she knew the year the first incident
occurred, she said, “No.” On redirect, the following exchange
took place:

      Prosecutor:   What year [did] that occur[], do you
        know?
      Beth: No.
      Prosecutor: So when you were asked by [Estes’s
        counsel] could it have been in 2016, that’s really a
        guess?
      Beth: Yes.
      Prosecutor:   Could it have been earlier?
      Beth: Yes.
      Prosecutor:   But you are certain it occurred in
        Clinton?
      Beth: Yes.
      Prosecutor:   In that living room?
      Beth: Yes.

¶31 Our supreme court has recognized that “children are often
not able to identify with a high degree of reliability, and
sometimes not at all, when an event in the past took place.” State



 20230086-CA                   13                 

                            State v. Estes


v. Taylor, 

, 

 (emphasis added) (cleaned
up). Given this, it might have been that Beth was completely
wrong about the date of the abuse. But Beth was not really
adamant about a date that was incorrect; instead, she was unsure
and hesitant from the beginning.

¶32 However, her statement in her 2021 CJC interview that “it
was like the summer before 6th grade” was followed immediately
by her saying “and it was at the Clinton house.” Both those things
cannot be accurate. Thus, the district court was in a position
where it had to assess the situation and determine the reliability
of either statement.

¶33 “Following a bench trial, . . . we review the court’s findings
of fact for clear error, granting due regard to the opportunity of
the trial court to judge the credibility of the witnesses.” Kelly v.
Timber Lakes Prop. Owners Ass’n, 

, ¶ 23, 

 (cleaned up). It is part of the court’s role in a bench trial to
make findings of fact, and we will not disturb those findings
absent clear error.

¶34 Given Beth’s uncertainty regarding the date, and her
certainty regarding the location, it was not clearly erroneous for
the district court to find her testimony concerning the location of
the relevant events reliable. This does not appear to be a mistake
of the district court at all but rather a reasoned decision based on
the credibility of the witnesses before it. Based on the record, it is
clear that one of the witnesses clarified the “time frame,” and the
court was well aware that the family was “living in Roy” during
the summer of 2016—in other words, well aware of the alleged
physical impossibility. Rather than conclude that this made Beth’s
testimony inherently improbable, the district court observed, “It
would be unusual in a case of this nature for the facts to line up
perfectly. In fact, I would almost think that if they did, there
would be less believability in them. Inconsistencies seem to be




 20230086-CA                     14                

                           State v. Estes


more consistent with people being honest and just not having a
perfect memory.”

¶35 It is apparent that Beth does not have a perfect memory.
But the district court found her to be “very credible” despite some
temporal errors in her testimony. Those errors do not constitute
physical impossibility so as to render her testimony inherently
improbable.

¶36 Because Beth’s testimony neither presents a physical
impossibility nor is otherwise inherently improbable, the district
court appropriately considered that evidence in its analysis. With
Beth’s testimony included in the balance, there was sufficient
evidence under which the district court could have convicted
Estes. See State v. Barnes, 

, ¶¶ 19–20, 

,
cert. denied, 

 (Utah 2024). We therefore affirm the
district court’s denial of Estes’s motion challenging the sufficiency
of the evidence.


                          CONCLUSION

¶37 The district court did not abuse its discretion when it
determined that the evidence of Estes’s abuse against Kate was
admissible under rule 403. Furthermore, Beth’s testimony was not
sufficiently inconclusive or inherently improbable such that
reasonable minds would have entertained some reasonable doubt
as to Estes’s guilt. We therefore affirm.




 20230086-CA                     15