State v. Simpson

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                           Appellee,
                              v.
                    GABRIEL AARON SIMPSON,
                          Appellant.

                             Opinion
                        No. 20220452-CA
                       Filed March 6, 2025

           Second District Court, Ogden Department
                The Honorable Joseph M. Bean
                        No. 211900240

        Emily Adams and Cherise Bacalski, Attorneys for
       Appellant, assisted by law students Mitchell Roundy
                         and Elena Miller 1
               Derek E. Brown and Daniel W. Boyer,
                      Attorneys for Appellee

    JUDGE RYAN D. TENNEY authored this Opinion, in which
  JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.

TENNEY, Judge:

¶1     Gabriel Simpson was charged with rape and object rape.
Before trial, the State sought leave to present evidence of another
sexual assault that Simpson had previously been convicted of
committing. Simpson objected, arguing, in relevant part, that the
evidence was inadmissible under rule 403 of the Utah Rules of
Evidence. The district court overruled the objection and allowed




1. See Utah R. Jud. Admin. 14-807 (governing law student practice
in the courts of Utah).
                         State v. Simpson


the State to present the evidence. At the close of trial, the jury
convicted Simpson as charged.

¶2    Simpson now appeals, arguing that the district court
abused its discretion in concluding that the evidence was
admissible under rule 403. For the reasons set forth below, we
disagree and therefore affirm Simpson’s convictions.


                        BACKGROUND 2

                        Susan’s Allegations

¶3     Susan 3 and Simpson connected on a dating app in May
2020. At the time, Susan was 18 years old and still in high school.
Simpson was a semi-professional football player who had
attended some college. The two soon exchanged “small-talk
questions” over another online messaging app. After three days
of messaging each other, they met in person at Simpson’s friend’s
apartment, where they watched a movie and had consensual sex.

¶4     The next evening, Simpson invited Susan to a party at the
same apartment. When Susan arrived around 10:30 p.m., Simpson
was there with six of his friends. Some of his friends were playing
a video game, and Simpson was drinking alcohol. Simpson said
hi to Susan, gave her a hug, and “greeted [her] like normal.”




2. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Suhail, 

, 

 (quotation simplified),
cert. denied, 

 (Utah 2023).

3. The parties have referred to the victim with a pseudonym in
their briefs, and we’ll do the same.


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                         State v. Simpson


¶5     When Susan sat on the ground, Simpson “pulled [her] in
front of him” and started “grabbing and touching [her] body” and
“trying to kiss” her. Susan was “uncomfortable,” “tried to pull
away,” and “kept telling him . . . to stop.” Simpson repeatedly
asked Susan to go upstairs with him, but Susan “kept saying no.”
While this was occurring, one of Simpson’s friends walked
outside and came back inside with a handgun. This made Susan
“nervous,” so she decided to go upstairs with Simpson because
she was “too scared to run out of the [apartment].”

¶6      Simpson took Susan to an upstairs bedroom. Once there,
Simpson began “grabbing” Susan’s breasts. He then pinned Susan
on the floor so she couldn’t “get away” and began penetrating her
vagina with his fingers. Susan repeatedly told Simpson that he
was hurting her and that she didn’t want him to touch her in that
manner. Simpson then began having sexual intercourse with
Susan, and he continued doing so even though Susan “kept telling
him [she] didn’t want to and that it hurt.” While this was
occurring, Simpson was “holding” onto Susan’s neck as if he was
“choking” her, though “not hard.” Susan eventually “gave up and
just laid there.” Susan later testified that she didn’t think that
Simpson was wearing a condom.

¶7     When Simpson eventually stopped, Susan went to the
bathroom. Simpson followed her into the bathroom and said that
he wouldn’t leave until Susan urinated. Moments after Susan had
finished urinating, a friend of Simpson’s approached the door
and, through a crack in the door, showed Simpson that he was on
a video call with their coach. Simpson tried to introduce Susan to
his coach, but Susan tried to stay out of the video.

¶8    Susan was soon able to leave the room and then the
apartment. When Susan got to her car, she was “in shock at what
happened” and “didn’t want to go home.” Instead, she picked up
some friends who had been at another person’s house and drove
them home. During that drive, Susan “acted like everything was


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                         State v. Simpson


fine” and “didn’t mention” anything about what had just
occurred.

¶9     The next day, Susan called one of the friends she had
driven home the night before and told her “the basics” of what
had happened with Simpson. Susan’s friend encouraged Susan to
“talk to somebody.” Susan then contacted the police. Susan soon
met with an officer (Officer) and told him that she wanted to
pursue charges. During that meeting, Simpson was messaging
Susan on the app that they had previously used to communicate.
Susan blocked Simpson on that app on Officer’s advice.

¶10 Over the ensuing months, there was minimal interaction
between Simpson and Susan. Simpson sent Susan a text message
a few weeks after their encounter, referring to her with a slightly
altered version of her first name. About three months after that,
Simpson commented on a picture Susan had posted on social
media, suggesting that she now “look[ed] different.”

¶11 About a month after Simpson commented on Susan’s
social media post, Officer reached out to Simpson, and the two
later had a recorded interview by phone. During that interview,
Officer told Simpson he was calling “about [a] sexual thing” and
that he wanted to know whether Simpson “know[s] this person”
or “dated this person.” When Simpson asked who the person was,
Officer provided Susan’s first name, though Officer refused to
provide Simpson with Susan’s last name. Simpson said he didn’t
think he knew anyone by Susan’s name except for one person he
remembered from “seventh grade.”

¶12 Officer later obtained a warrant for Simpson’s DNA. While
Officer was executing that warrant, Simpson told him that “he did
know a girl” named Susan and that they had “hung out a couple
of times.” Simpson also gave Officer the names of two of his
friends who had been at the party. But he otherwise refused to
talk “about the sexual allegations.”



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                         State v. Simpson


¶13 Based on Susan’s statements and other evidence collected
in the investigation, the State charged Simpson with rape and
object rape. 4

             Motions Relating to Rules 404(b) and 403

¶14 Before trial, the State gave notice of its intent to admit
evidence of two prior incidents pursuant to rule 404(b) of the Utah
Rules of Evidence.

¶15 The first prior incident involved one of Simpson’s college
classmates, Jane. 5 The State proffered as follows:

      On September 28, 2018, 20-year-old student [Jane]
      reported to police that she was raped by Gabriel
      Simpson, a fellow student in her English class at
      [college]. [Jane] reported that she originally went
      over to Simpson’s dorm to work on an assignment
      when Simpson wanted [Jane] to take her pants off.
      [Jane] was clear she did not want to do anything
      sexual and repeatedly told Simpson no, but
      eventually gave in to his insistence to remove her
      pants. [Jane] stated Simpson then put his finger in
      her vagina despite her telling him “no” and that she
      needed to leave. [Jane] stated Simpson removed his
      pants and penetrated her vagina with [h]is penis
      while [Jane] put a pillow on her face because she did
      not want to look at him. [Jane] indicated she went to


4. The State originally charged Simpson with rape, object rape,
and forcible sodomy. After the preliminary hearing, however, the
district court granted the State’s request to dismiss the forcible
sodomy count without prejudice.

5. As we’ve done with Susan, we’ll refer to the victims from the
two other incidents with pseudonyms.


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                          State v. Simpson


       a different place mentally while the rape happened.
       Afterwards, [Jane] indicated that Simpson said
       “we’re not going to tell anybody about this.” [Jane]
       also confronted Simpson about how what happened
       was not consensual via text messages that were
       turned over to the police. Simpson apologized and
       asked [Jane] not to ruin his future.

The State proffered that Simpson had been charged with rape as
a result of Jane’s allegations, provided a case number for that case,
and noted that, “[a]s part of a plea resolution,” Simpson had
pleaded guilty to one count of “Forcible Sexual Abuse, a Third
Degree Felony.”

¶16 The second incident involved another classmate of
Simpson’s from college, Heather. The State proffered that
Simpson had met Heather during freshman orientation and that
they had become friends. The State proffered that while they were
hanging out in Simpson’s room one day in August 2018, Simpson
had touched Heather’s breasts, even though she had repeatedly
said “no,” and that he then inserted his fingers into her vagina,
even though she again told him “no.” Unlike the incident
involving Jane, the State did not assert that this alleged incident
resulted in criminal charges.

¶17 The State’s rule 404(b) notice concluded by asserting that
evidence of the two incidents would be admissible at trial to show
Simpson’s “motive, intent, plan, absence of mistake, or lack of
accident for the conduct charged in this case, and would also be
permissible under the doctrine of chances.”

¶18 Simpson later filed a motion in limine to exclude the State’s
proposed evidence. In his motion, Simpson discussed “the four
foundational requirements” of the doctrine of chances as it related
to a rule 404(b) analysis. He conceded that there was a bona fide
dispute, but he challenged the other three requirements—



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                         State v. Simpson


similarity, independence, and frequency. From this, Simpson
argued that the evidence was inadmissible under rule 404(b).
Simpson also argued that the evidence should “be excluded under
rule 403” because “the probative value of the alleged prior bad
acts . . . is substantially outweighed by the danger of unfair
prejudice.”

¶19 After receiving an opposition memorandum from the
State, the district court denied Simpson’s motion in limine.
Starting with Simpson’s arguments relating to rule 404(b), the
court reasoned that the evidence in question was relevant for “a
non-character purpose”—i.e., “the credibility of the parties with
regard to whether there was consent,” particularly because, in the
court’s view, Simpson had already alleged (and intended to
argue) that Susan “fabricated” her nonconsent. 6

¶20 The court then addressed the doctrine of chances factors.
In the court’s view, the evidence was material because it
countered Simpson’s fabrication defense. The court also
expressed its view that the incidents were similar because of the
following commonalities:



6. When the court referred to Simpson’s proposed fabrication
defense, it seems that it was referring to a motion in limine that
Simpson had previously filed, wherein Simpson sought to admit
evidence that he and Susan “had consensual sexual relations” the
night before Susan alleged that the non-consensual sexual
encounter occurred. This motion relied on rule 412(b)(2) of the
Utah Rules of Evidence, which allows admission of “evidence of
specific instances of a victim’s sexual behavior with respect to the
person accused of the sexual misconduct, if offered by the
defendant to prove consent.” Utah R. Evid. 412(b)(2). This
apparently indicated to the district court that Simpson’s defense
at trial would include an argument that Susan fabricated her
nonconsent.


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                           State v. Simpson


   •   “All three victims were acquaintances of [D]efendant”;

   •   “All three victims were in that demographic of 18 to 20
       years of age”;

   •   “All three victims went over to Defendant’s house, or
       Defendant’s residence, or wherever he was”;

   •   “All three incidences did involve conduct where it
       escalated beyond the victims saying ‘no’, ‘stop’”;

   •   “All three victims indicated that the assault involved and
       usually began early on with Defendant attempting some
       sort of digital stimulation to the victims’ vaginas”; and

   •   “A condom was not used during the two cases where
       intercourse or penetration was actually alleged.”

Moving past similarity, the court concluded that the frequency
factor was satisfied because “the probability that any given
individual who might be accused of rape is low given the
infrequent occurrence of false rape allegations,” thus “[t]he
probability that the same innocent person will be the object of
multiple false accusations is extremely low.” And more globally,
the court also said that it was “persuaded by the fact that . . . all of
the allegations took place within a 20-month period.” From all
this, the court held that the proposed evidence was admissible
under rule 404(b) pursuant to the doctrine of chances.

¶21 The district court next addressed whether the evidence was
admissible under rule 403. Assessing the probative value of the
evidence, the court concluded that the evidence was “probative
with regard to similarity,” that it was “probative with regard to
the interval,” and that “it’s definitely probative with regard to that
allegation of fabrication.” The court also referenced the State’s
“need” for the evidence, given the “he said/she said” nature of the
case, as well as to allow the State to respond to any suggestion



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                          State v. Simpson


that because “there was prior consensual sex the night before,”
Simpson was allowed to “have sex in the future” with Susan
because he had “got[ten] consent once.” In the court’s view, there
wasn’t “any other alternative evidence that exist[ed] with regard[]
to consent or fabrication,” which it treated as “part of the 403
analysis.”

¶22 Turning to the potential for unfair prejudice, the court
acknowledged the difficulty of asking the jury not to “think of this
in the terms of propensity,” observing that “no matter how we say
it, it’s going to be prejudicial.” But the court then expressed its
view that with an appropriate limiting instruction, “the probative
value would far outweigh the prejudicial effect on the jury.” And
the court expressed its intention to give such an instruction
“during the trial” and again “with a written instruction to the jury
after that.” In light of all this, the court denied the motion and
ruled that the evidence would be admissible.

¶23 The case ultimately proceeded to trial. After voir dire, the
State informed the district court and Simpson that it no longer
intended to present evidence of the alleged incident involving
Heather, explaining that she had informed prosecutors that it
would be “too traumatic” for her to testify and that she was “too
stressed to come in and recount those . . . events with complete
strangers.” The next morning, on the first day of trial, Simpson
renewed his motion in limine to exclude evidence of the incident
involving Jane. Simpson now argued that, without the additional
allegation involving Heather, the frequency analysis had changed
so that the doctrine of chances no longer applied in the manner
contemplated by the court in its earlier ruling. The district court
declined to change its prior ruling, expressing its view that “even
one circumstance still brings it within the [d]octrine of [c]hances.”

¶24 Simpson’s counsel then informed the court that he was
lodging “an ongoing standing objection” to the State’s prior bad
acts evidence, rather than needing to “interrupt the [c]ourt” and


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                         State v. Simpson


“perhaps confuse the jury during [the] trial,” and the court agreed
that Simpson had “been consistent enough with [his] objection
that it [would] be a matter of record.”

                        Trial and Conviction

¶25 In the State’s opening statement, the prosecutor told the
jury that as part of the State’s case, it would hear from Jane, “who
went to college with [Simpson] . . . back in 2018 and she will
recount her experiences with Mr. Simpson.” In the defense’s
opening statement, Simpson’s counsel asserted, in part, that
Susan fabricated the rape allegation that formed the basis for these
charges because she thought Simpson was “clingy” and reminded
her of a previous relationship.

¶26 The State called Susan and Officer as witnesses, and they
testified to the events described above. The State also called
several other witnesses, including the following:

   •   Susan’s mother, who testified that on the night in question,
       Susan came home and got into bed with her, which Susan
       had “never done” before, and who further testified that
       Susan told her about the alleged rape the following day;

   •   a nurse, who testified about conducting a sexual assault
       exam on Susan; and

   •   a forensic scientist, who testified about performing a DNA
       analysis for the case, and “detect[ing] male DNA” on (1) a
       swab from Susan’s vagina (which was not enough “to
       develop a profile”) and (2) a swab from Susan’s neck
       (which was “consistent with [Simpson’s] DNA profile”).

¶27 The State’s final witness was Jane. Before Jane testified, the
district court read the following instruction to the jury:




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                         State v. Simpson


      I’m going to give you another cautionary
      instruction. This is what is commonly referred to as
      prior bad acts evidence. You are about to hear from
      a witness whose [name is Jane] of another sexual
      assault committed by the defendant, Mr. Simpson.
      You are instructed that Mr. Simpson was charged
      with an offense involving [Jane] and ultimately pled
      to a lesser charge in that case.

              You may use the evidence offered by [Jane]
      only to help you decide whether [Simpson] had
      non-consensual sexual intercourse with [Susan], the
      alleged victim in this case, and for other purposes
      listed below. The law does not allow you to convict
      Mr. Simpson or punish him simply because you
      believe that he . . . may have done things, even bad
      things not specifically charged as crimes in this case.

            Evidence [of] other crimes or wrongs is not
      admissible to prove the character of a person in
      order to show that he acted in this case in
      conformity with that character. Evidence may be
      used or may be admissible for other purposes such
      as proof of motive, intent, plan, knowledge or
      absence of mistake or accident.

¶28 Jane then testified. Jane said that she met Simpson in 2018
during her first semester at college while they were working on a
project together for their English class. She said that Simpson
invited Jane over to his dorm room one night so that they could
work on the project. According to Jane, she “wasn’t feeling very
sober” that night because she had smoked marijuana earlier with
her roommates. Once she was inside Simpson’s room, Jane said
that Simpson told her that “he wanted to finger” her. Jane said
that she told him no and that she just wanted to work on the
assignment. According to Jane, Simpson then said that he



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                         State v. Simpson


“want[ed] to play truth or dare” before they started working, after
which he dared her to take her pants off or let him take them off
for her. Jane testified that she again said “no,” told Simpson that
she was “seeing somebody,” and “started listing off reasons why
[she] didn’t want to.” Jane said that Simpson then grabbed at her
pants, at which point she took them off herself. Jane said that
Simpson asked her to touch his penis. According to Jane, she
again said no, telling Simpson that she “didn’t want to.” Jane
testified that Simpson then approached her, “moved [her]
underwear[,] and put his fingers inside” her vagina. Jane said that
Simpson then “started having sex with” her, and that while he
did, she “put a pillow over [her] face so [she] wouldn’t have to see
what was going on.” Jane said that Simpson did not wear a
condom. She testified that before she left, Simpson made her
“promise not to tell anybody.” But Jane soon reported the incident
to campus police.

¶29 After the State rested, the defense presented its case.
Simpson’s counsel called two friends that had been at the same
party at which Susan claimed that Simpson raped her. The first
friend testified that when Susan arrived, she and Simpson
“hugged each other” and were acting “lovey-dovey with each
other” before going upstairs. This friend said that when she left
the party, Simpson and Susan were in the bathroom and others
were standing outside the bathroom “talking about something on
somebody’s phone.” She said that Susan had her clothes on but
that she looked “nervous” or “embarrassed.”

¶30 The second friend testified that when Susan arrived, he
saw that she and Simpson were “holding hands” and “kissing”
and that he eventually saw them go upstairs. This friend said that
when Simpson and Susan later came back downstairs, it “seemed
like they were getting along. They were still talking and
laughing.” He said that before Susan left, “[s]he gave [Simpson] a
kiss bye and said, ‘I love you.’”




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                         State v. Simpson


¶31 After the defense rested, the district court read the final
instructions to the jury. As part of these instructions, the court
again read the limiting instruction that it had read before Jane’s
testimony, though the instruction was slightly modified this time
to reflect that Jane had already testified.

¶32 In the State’s closing argument, the prosecutor recounted
the testimony from each witness, including Jane. Concerning
Jane’s testimony, he stated:

      Lastly you heard from [Jane]. And you’re
      specifically instructed obviously not to consider a
      negative character inference related to that, and you
      should read through that instruction and only use
      the evidence for its intended purpose.

             But ultimately she told you a story very—of
      what happened to her that was very similar to what
      you heard from [Susan]. That she said “no.” She
      provided reasons why they shouldn’t engage in this
      conduct or why they couldn’t engage in this
      conduct, and the defendant kept going. The
      defendant then moved to digital penetration with
      his fingers, and ultimately penetration with his
      penis into [Jane’s] vagina. And she talked about the
      negative impacts this has had on her life as well.

             And you ultimately have to ask yourself
      what are the odds that two completely independent
      women would come up with almost an identical
      story. Both of them knew nothing about the other.

In the defense’s closing argument, Simpson’s counsel argued that
Susan fabricated the rape allegation because she thought Simpson
was “clingy” and reminded her of a previous relationship.




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                         State v. Simpson


¶33 The jury convicted Simpson of both rape and object rape.
Simpson now appeals.


             ISSUE AND STANDARD OF REVIEW

¶34 Simpson raises one issue on appeal—namely, he argues
that the district court should have granted his motion to exclude
Jane’s allegation pursuant to rule 403 of the Utah Rules of
Evidence. 7 As our supreme court has explained,

      The appropriate standard of review for a district
      court’s decision to admit or exclude evidence is
      abuse of discretion. A district court abuses its
      discretion when it admits or excludes evidence
      under the wrong legal standard. Whether the
      district court applied the proper legal standard in
      assessing the admissibility of evidence is a question
      of law that we review for correctness. 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.

State v. Green, 

, 

 (quotation
simplified).


                           ANALYSIS

¶35 Under rule 403 of the Utah Rules of Evidence, a district
court “may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice.”


7. Simpson does not separately challenge the district court’s
conclusion that the testimony was admissible pursuant to rule
404(b) of the Utah Rules of Evidence.


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                          State v. Simpson


Utah R. Evid. 403. For purposes of this test, the “probative value
of evidence is judged by the strength of the evidence and its ability
to make the existence of a consequential fact either more or less
probable and the proponent’s need for the evidence.” Anderson-Wallace v. Rusk, 

, 

 (quotation
simplified). And “evidence is unfairly prejudicial when it has an
undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.” State v.
Smith, 

, 

 (quotation simplified). 8

¶36 By structural design, rule 403 puts its thumb on the scale in
two particular respects, both of which matter to our resolution of
this appeal.

¶37 First, as a textual matter, the rule “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.” 

 (emphasis added, quotation otherwise
simplified). In this sense, rule 403 is “an inclusionary rule,” 

(quotation simplified), and it requires courts to “indulge a
presumption in favor of admissibility.” State v. Green, 

, 

 (quotation simplified); see also State v. Thornton,

, 

 (explaining that once evidence

8. As indicated, Simpson also argued below that the testimony
was inadmissible under rule 404(b), and some of our analysis of
the rule 403 issue does indeed incorporate portions of the court’s
rule 404(b) determination. This overlap makes conceptual sense
given the overlap between the two rules. See State v. Green, 

, 

 (“Evidence of prior bad acts must clear
several evidentiary hurdles before admission—rules 404(b), 402,
and 403.” (quotation simplified)). Indeed, for prior bad acts
evidence to be admissible, a court must determine that 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.” Id. ¶ 64 (quotation simplified).


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                         State v. Simpson


overcomes rule 404(b), it “is presumptively admissible” though
still “subject to rule 402 and 403 analysis”).

¶38 Second, when conducting the rule 403 balancing, a district
court has “considerable freedom” to apply the rule “to the facts”
of the case. State v. Beverly, 

, 

(quotation simplified). This is so because district courts “have
wide discretion in determining relevance, probative value, and
prejudice.” 

 (quotation simplified); see also Francis v. National
DME, 

, 

 (“The trial court is
granted broad discretion when weighing the probative value of
evidence against the reasons for exclusion enumerated in rule
403.” (quotation simplified)). This deference is also “appropriate
because the trial court is in the best position to make evidentiary
rulings as they arise because it can review, among other things,
the claims and the evidence already admitted or proffered.”
Francis, 

 (quotation simplified). And in light
of this deference, an appellate court reverses a district court’s
ruling under rule 403 only if the ruling “was beyond the limits of
reasonableness.” Beverly, 

 (quotation simplified).
If an appellate court “can imagine two equally reasonable trial
court judges reaching different conclusions about the
admissibility of [the] evidence under rule 403 in the exercise of
their discretion,” the court affirms. State v. Burke, 

, 

.

¶39 As discussed above, the district court concluded that Jane’s
testimony was “probative with regard to similarity,” “probative
with regard to the interval,” and “definitely probative with regard
to [the] allegation of fabrication.” The court also concluded that
the State had a “need” for the evidence given the “he said/she
said” nature of the case and “the very fact that there was prior
consensual sex the night before.” In the court’s view, there wasn’t
“any other alternative evidence that exist[ed] with regard[] to
consent or fabrication,” which it treated as “part of the 403
analysis.” Turning to the potential for unfair prejudice, the court


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                          State v. Simpson


acknowledged the difficulty in instructing the jury not to “think
of this in the terms of propensity,” observing that “no matter how
we say it, it’s going to be prejudicial.” But the court then expressed
its view that with an appropriate limiting instruction, “the
probative value would far outweigh the prejudicial effect on the
jury.” As noted, the court gave such an instruction before Jane’s
testimony and again as part of the final instructions. In light of its
assessment of the probative value against the danger of unfair
prejudice, the court chose to admit the evidence.

¶40 Simpson nevertheless argues on appeal that the district
court’s analysis was flawed in several respects. We address each
of his arguments in turn.

¶41 First, Simpson challenges the district court’s conclusion
that the incident involving Jane had enough probative value to
justify admission. In reviewing his arguments, however, we note
that Simpson has not challenged the district court’s initial
conclusion that Jane’s testimony was relevant under rule 402.
“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.” Green, 

 (quotation simplified). The
district court held that the evidence was relevant to the
overarching issue of “the credibility of the parties with regard to
whether there was consent or there wasn’t consent,” and Simpson
has not argued on appeal that this rule 402 determination was
flawed. Indeed, at oral argument, his appellate counsel conceded
that “this is squarely a 403 case.”

¶42 Relatedly, we also note that Simpson has not challenged
the district court’s conclusion that Jane’s testimony was
admissible for a proper non-character purpose under rule 404(b).
“Rule 404(b) prohibits the admission of evidence of a crime,
wrong, or other act when offered to prove a person’s character in


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                          State v. Simpson


order to show that on a particular occasion the person acted in
conformity with the character,” but “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.” Id.
¶ 68 (quotation simplified). Here, the district court held that the
evidence was admissible for the “non-character purpose” of
rebutting Simpson’s allegation “that the non-consensual part of
this act was fabricated by [Susan].” In light of our supreme court’s
recent decision in Green, Simpson conceded in his brief that
“rebut[ting] a defense of fabrication” can be a proper, non-character purpose. Id. ¶ 70 (holding that under “the plain text of
the rule” prior bad acts evidence “may be admissible to rebut a
fabrication defense”). And again, at oral argument, his appellate
counsel conceded that Simpson was not challenging the district
court’s rule 404(b) determination, explaining that “this is squarely
a 403 case.”

¶43 Thus, on the nature of the arguments presented to us, the
starting point is that the evidence in question was relevant to
questions of consent and fabrication. In light of this, it seems that
the evidence had at least some probative value as to those
contested issues.

¶44 Second, Simpson contends that the incidents were not
similar enough to support admission. As an initial matter, we note
that Utah’s courts have considered similarity in relation to both
the probative value prong of rule 403 and its unfair prejudice
prong. Compare State v. Lowther, 

, 

(explaining that “similarities between the charged and uncharged
incidents . . . aid[] in assessing the probative value of a body of
prior bad acts evidence” (quotation simplified)), with Green, 

 (explaining that “the similarities among the women’s
accounts reduced the tendency for the jury to decide upon an
improper basis”), and State v. Meik, 

, 

 (explaining that “the danger of unfair prejudice was reduced


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                            State v. Simpson


by . . . the similarities to this case”), cert. denied, 

 (Utah
2024). While the parties’ briefs have mostly focused on similarity
as it relates to the potential for unfair prejudice, the district court
held that Jane’s testimony was “probative with regard to
similarity.” Thus, it seems to have used similarity as part of its
analysis of rule 403’s probative value prong. Since we’re
reviewing the district court’s ruling, we’ll follow suit and address
similarity in terms of this prong too.

¶45 On that question, the two sides have very different views
of how similar the incidents at issue really were. Simpson
contends that “the two acts were not similar at all,” and he points
to a series of factual distinctions between the two incidents. By
contrast, the State argues that “they were strikingly similar,” and
in making this argument, the State relies on a list of similarities
that mirrors and even amplifies the list given by the district court
in its analysis.

¶46 A rule 403 similarity determination is context-specific,
calling upon the court to first identify the relevant factual details
involved in the respective incidents. After identifying those
details, the question then becomes comparative. It turns on how
similar the two incidents are, or, to put it slightly differently,
whether they’re similar enough so as to justify admitting evidence
of one incident in a trial that’s about the other. In this sense, “a
proper rule 403 analysis doesn’t require that the past incidents be
identical; rather, what’s at issue is the degree of similarity.” State
v. Forbush, 

, 

 (quotation simplified),
cert. denied, 

 (Utah 2024). But because this question
turns on the degree of similarity, which poses something of an
imprecise question, it’s properly viewed as being part of the
court’s overall balancing. And because that balancing is itself the
thing to which an appellate court gives deference, this, too, is a
determination to which an appellate court should give deference.
See, e.g., Beverly, 

 (noting that a district court has
“considerable freedom” to apply rule 403 “to the facts” of the case


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                         State v. Simpson


(quotation simplified)); Francis, 

 (noting
that “the trial court is granted broad discretion when weighing
the probative value of evidence against the reasons for exclusion
enumerated in rule 403” (quotation simplified)).

¶47 As noted, the district court here identified several
commonalities between the incidents involving Jane and Susan.
These included similarities in age, the locations of the sexual
encounters, the nature of the relationships between Simpson and
the women, the particular acts and escalation of the sexual contact
(namely, that both incidents began with unwanted digital
penetration followed by unwanted sexual intercourse), the fact
that each woman had verbalized a “no,” and the fact that Simpson
did not wear a condom.

¶48 In his arguments on appeal, Simpson nevertheless
contends that many, if not most, of these things would be common
to many sexual encounters involving college students, and he
accordingly argues that these incidents were simply not similar
enough, or similar enough in meaningful ways, to justify
admission of Jane’s testimony. But no two incidents are perfectly
similar—there will always be some potential point of difference.
And whether particular points of similarity between two
incidents are sufficiently meaningful depends on the context of
the encounters. As explained, the question of a particular piece of
evidence’s probative weight (i.e., meaningfulness) in light of its
context is one on which we give deference to the district court’s
judgment, as is the question of sufficient similarity generally. As
also explained, for purposes of this appeal, we take it as a given
that, however similar or dissimilar these incidents were, they
were at least similar enough to satisfy rule 402’s relevancy
standard, as well as rule 404(b)’s requirement that the evidence be
related in some measure to a non-character purpose. In light of all
this, and having carefully reviewed both the broader record and
Jane’s testimony, “we cannot say that the district court abused its
broad discretion in concluding that the similarities among the


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                          State v. Simpson


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.”
Green, 

. Put differently, even with the
dissimilarities identified by Simpson on appeal, we cannot say
that the list of similarities relied on by the district court was so
unpersuasive that its resultant decision to admit the evidence was
an abuse of discretion. 9

¶49 Third, Simpson claims that the district court’s rule 403
analysis was flawed because the court did not “articulat[e] or
weigh[] permissible or impermissible inferences.” In Simpson’s
view, this was required by State v. Richins, which held that the
“district court needed to identify the likely inferences the jury
would draw from the other-acts evidence.” 

, 

, abrogated on other grounds by Green, 

.




9. To be clear, if a court admits evidence over a rule 403 objection,
the party who opposed admission could still argue to the jury that
the incidents in question were not sufficiently similar so as to have
any meaningful probative value. In this sense, we again recognize
that there is a difference between the question of whether
evidence is admissible under rule 403 (which is a question for the
court) and the question of how much weight ultimately should be
given to it (which is a question for the jury). See, e.g., State v.
Anderson, 

, 

 (recognizing,
within a rule 403 analysis, a distinction between concerns that
went to the evidence’s weight and concerns that went to its
admissibility); State v. Burke, 

, 

(same); State v. Cosey, 

 (Utah Ct. App. 1994)
(same). Here, the district court never prevented Simpson from
arguing to the jury that it should discount or disregard the
incident involving Jane because the incidents were not sufficiently
similar.


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                           State v. Simpson


¶50 We have some question about whether the court was
indeed required to articulate, on the record, a list of inferences in
the manner suggested by Simpson. As noted, Simpson relies on
Richins. But in our view, that portion of Richins was likely
abrogated by Green. Like Simpson, the defendant in Green argued
that “the court failed to weigh competing inferences,” and he
pointed to Richins for support. 

. After noting that
the review in Richins “was conducted under the doctrine-ofchances framework,” a framework that has since been
abandoned, our supreme court explained that its “holding in
Richins is therefore less relevant.” Id. ¶ 75. And our supreme court
has indeed moved the rule 403 analysis away from extra-textual
lists or requirements. See, e.g., Lowther, 

 (“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.”).

¶51 In any event, even if something like this was required, we
see no error here because the district court did articulate and
weigh the competing inferences. In its ruling, the court expressly
identified the permissible inferences, stating that the evidence
was “probative with regard to similarity,” “probative with regard
to the interval,” and “probative with regard to [the] allegation of
fabrication.” It also identified what it saw as the principal
impermissible inference, stating that it was worried that the jury
might use this evidence for “propensity.” And the court then
conducted an on-the-record weighing, acknowledging its
obligation to “weigh[] the materiality or the probative value
versus prejudicial” and concluding that, with an appropriate
limiting instruction, “the probative value would far outweigh the
prejudicial effect on the jury.” We accordingly see no error in the
nature of the court’s analysis.

¶52 Fourth, Simpson claims that the district court erred by
affirmatively considering “necessity and other evidentiary
alternatives” in its rule 403 analysis. In his view, it was an error to




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                            State v. Simpson


consider these things because they are part of the overruled
Shickles factors. 10 We disagree.

¶53 For many years, Utah courts considered the so-called
Shickles factors when conducting a rule 403 analysis. See generally
State v. Shickles, 

 (Utah 1988), abrogated by State v.
Doporto, 

 (Utah 1997). Those factors were “the
strength of the evidence as to the commission of the other crime,
the similarities between the crimes, the interval of time that has
elapsed between the crimes, the need for the evidence, the efficacy
of alternative proof, and the degree to which the evidence
probably will rouse the jury to overmastering hostility.” Forbush,

 (quotation simplified). In 2014, our supreme
court clarified that while “some of these factors may be helpful in
assessing the probative value of the evidence in one context, they
may not be helpful in another.” State v. Lucero, 

,

, abrogated on other grounds by Thornton, 

.

¶54 Simpson’s claim focuses on the “necessity and other
evidentiary alternatives” factors. But no case has said that a
district court can’t consider these particular factors in a rule 403
analysis. And again, in Lucero, our supreme court held that in
some cases, “some of” the Shickles factors “may be helpful” in
assessing probative value. 

 (emphasis added). And in State v.
Cuttler, 

, 

, the court likewise

10. The State contends that this point was unpreserved below.
Simpson, however, contends that this “is not an independent
appellate issue; it is merely an argument supporting whether the
court got its rule 403 ruling right.” We decline to weigh in on the
preservation question here because the merits of this claim can
easily be resolved in the State’s favor. See State v. Kitches, 

, 

 (“[I]f the merits of a claim can easily be
resolved in favor of the party asserting that the claim was not preserved,
we readily may opt to do so without addressing preservation.”
(emphasis in original)).


 20220452-CA                       23                 

                           State v. Simpson


recognized that it “may very well be appropriate” for a court to
consider some of the Shickles factors in a rule 403 analysis. These
statements undermine, if not refute, the broader claim Simpson
makes here. Moreover, as we recently recognized, the two things
that are now prohibited in a rule 403 analysis are (1) “for a district
court to moor its rule 403 analysis entirely and exclusively to all
of the Shickles factors” and (2) “for a court to consider the sixth
Shickles factor (the degree to which the evidence probably will
rouse the jury to overmastering hostility) . . . because that
standard presents both a stricter and looser metric than the one at
issue in rule 403.” Forbush, 

 (quotation
simplified). Simpson does not claim that the court exclusively
moored its analysis to these or any other Shickles factor, nor does
he claim that by referencing these factors at all, the district court
violated the prohibition on using the “overmastering hostility”
factor.

¶55 As to the question of how these particular factors can play
into a rule 403 analysis, we recognize, as we did above, that our
supreme court has recently cautioned against adding extra-textual requirements to the rule 403 analysis. But we don’t regard
an analysis of need or evidentiary alternatives as violating this
imperative. Instead, we see these questions as being a natural
extension of the probative value inquiry. See, e.g., State v. Lewis,

, 

 (“It is also appropriate to
consider the availability of other, less prejudicial, means of proof.
If an evidentiary alternative has equal or greater probative value
and poses a lower risk of unfair prejudice, the trial court should
discount the probative value of the disputed evidence and
exclude it if the risk of unfair prejudice substantially outweighs
its discounted probative value. But if the relative need for the
evidence is critical, the court is less likely to exclude it under rule
403.” (quotation simplified)), cert. granted, -- P.3d -- (Utah 2025);
Anderson-Wallace, 

 (“The probative value of
evidence is judged by the strength of the evidence and its ability



 20220452-CA                      24                

                          State v. Simpson


to make the existence of a consequential fact either more or less
probable and the proponent’s need for the evidence.” (emphasis
added, quotation otherwise simplified)). And this seems to be
how the district court used the State’s need and the lack of other
evidentiary alternatives here. After referencing the State’s “need”
for the evidence, the court said, “[t]hat’s part of the [r]ule 403
analysis.” The court then elaborated on how the evidence was
probative with regard to consent, particularly given Simpson’s
allegation that Susan fabricated her nonconsent and “the very fact
that there was prior consensual sex the night before.” And after
noting the lack of “any other alternative evidence that exist[ed]
with regard[] to consent or fabrication,” the court explained that
this “is part of the 403 analysis.” As a result, we see no basis for
concluding that the district court abused its discretion by
considering these factors in the manner that it did.

¶56 Fifth, as noted, the district court concluded that the danger
of unfair prejudice was mitigated to some degree by the limiting
instruction that it gave before Jane’s testimony (and again as part
of its final instructions). On appeal, Simpson claims that this
instruction was inadequate—and, thus, that the court’s weighing
should be reversed. We again disagree.

¶57 When evidence of a prior bad act is admitted against a
defendant in a criminal case, the district court may issue a limiting
instruction “to offset the danger of unfair prejudice.” Green, 

. And if such an instruction is given, it may have “a
material impact on the rule 403 balancing.” 

 (quotation
simplified). This isn’t to say, of course, that a limiting instruction
alone will always be enough to render evidence admissible.
Again, rule 403 contemplates that a court will balance the
evidence’s probative value against the danger of unfair prejudice.
Depending on the particular circumstances at issue, it may be the
case that a limiting instruction alone might not be enough to tip
the scales toward admissibility. Moreover, we recognize that not
every instruction is created equal. As stated by our supreme court,


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                          State v. Simpson


“a general instruction that [makes] no reference to specific
evidence” or that is essentially “a near-verbatim repetition of the
contents of [rule] 404(b)” is “unlikely to overcome any undue
prejudice caused by admission of the evidence.” State v. Bell, 

, 111 & n.23 (Utah 1988).

¶58 In an optimal world, a limiting instruction in the rule 403
context will instruct the jury on two points: (1) the purposes for
which the jury can use the evidence and (2) the purposes for which
the jury can’t use the evidence. With respect to the former, this is
presumably why Utah’s model instruction for rule 404(b) includes
bracketed language saying that “practitioners must specify
proper non-character purpose such as motive, intent, etc. and to
which issue(s) it applies.” 11




11. In full, this model instruction provides:
        You (are about to hear) (have heard) evidence that
        the defendant [insert 404(b) evidence] (before)
        (after) the act(s) charged in this case. This evidence
        (is) (was) not admitted to prove a character trait of
        the defendant or to show that (he) (she) acted in a
        manner consistent with that trait. You may consider
        this evidence, if at all, for the limited purpose of
        [practitioners must specify proper non-character
        purpose such as motive, intent, etc. and to which
        issue(s) it applies]. Keep in mind that the defendant
        is on trial for the crime(s) charged in this case, and
        for (that) (those) crime(s) only. You may not convict
        the defendant simply because you believe (he) (she)
        may have committed some other act(s) at another
        time.
Model       Utah      Jury    Instructions    2d     CR411     (2024),
https://legacy.utcourts.gov/muji/?cat=2 [https://perma.cc/5KR6-
F3S5] (alterations and notations in original).


 20220452-CA                     26                

                          State v. Simpson


¶59 Here, the instruction clearly instructed jurors on the
latter—i.e., the purpose for which they could not use the evidence.
In relevant part, the instruction told jurors: “The law does not
allow you to convict Mr. Simpson or punish him simply because
you believe that he . . . may have done things, even bad things not
specifically charged as crimes in this case.” And the instruction
also instructed jurors on at least some of the purposes for which
they could use the evidence. It told jurors: “You may use the
evidence offered by [Jane] only to help you decide whether
[Simpson] had non-consensual sexual intercourse with [Susan],
the alleged victim in this case, and for other purposes listed
below.” Continuing, it told jurors that “[e]vidence may be used or
may be admissible for other purposes such as proof of motive,
intent, plan, knowledge or absence of mistake or accident.”

¶60 As Simpson points out, however, the instruction was
nevertheless incomplete with respect to the purposes for which
the evidence could be used. Again, the district court had
previously ruled that Jane’s account would be admissible for the
purpose of rebutting the defense of fabrication, but the instruction
failed to tell jurors that they could use this justification for this
purpose. We take the point, and we agree with Simpson that the
instruction here would have been better and more complete if it
had included this additional language.

¶61 Even so, we don’t see this as being a basis for reversing
Simpson’s convictions. Simpson’s claim on appeal is that because
the instruction did not include language about rebutting a
fabrication defense, the instruction essentially invited the jury to
consider the evidence for propensity instead—in Simpson’s
words, “it invited the jury to infer that, ‘because he did this type
of thing before, he did it this time.’” (Quoting Richins, 

.) But the instruction specifically told jurors not “to convict
Mr. Simpson or punish him simply because you believe that he
. . . may have done things, even bad things not specifically
charged as crimes in this case.” Importantly, this is similar to the


 20220452-CA                     27               

                         State v. Simpson


instruction given (and later upheld) in Green, which stated, “You
may not convict a person of a crime simply because you believe
he may have committed some other act at another time.” 

 (quotation simplified). Here, we have no reason to believe
that the jury disregarded the court’s instruction to not consider
propensity. See State v. Suhail, 

, 

(“Jurors are presumed to have followed a trial court’s
instructions.” (quotation simplified)), cert. denied, 

(Utah 2023). And we’d also be hesitant to assume this here, given
that the prosecutor reiterated this point in his closing argument,
telling jurors, “Lastly you heard from [Jane]. And you’re
specifically instructed obviously not to consider a negative
character inference related to that, and you should read through
that instruction and only use the evidence for its intended
purpose.”

¶62 In light of all this, we cannot say that the district court
abused its discretion under rule 403 when it “determined that the
danger of unfair prejudice was mitigated . . . by the limiting
instruction.” Green, 

. Although the instruction
may not have been as helpful as it could have been, it still did a
lot of the work that a limiting instruction should ordinarily do in
this context. Given the deference that we give to district courts on
rule 403 balancing questions generally, we cannot say that the
deficiency in this instruction was so pronounced that the
instruction could not play some role in overcoming the danger of
unfair prejudice, or, by extension, that it constitutes reason to
overturn the court’s overall balancing.

¶63 As a final matter, Simpson claims that the district court
failed to mitigate the danger of unfair prejudice by not requiring
the State to introduce Jane’s account through a stipulation, as
opposed to live testimony. In response, the State contends that
Simpson “never raised this issue with the trial court” and that it’s
accordingly unpreserved. In his reply, Simpson did not claim
otherwise. The claim fails for this reason alone.


 20220452-CA                    28                

                          State v. Simpson


¶64 In any event, while it’s true that “a stipulation that . . .
sanitize[s] the other-acts evidence by removing salacious and
extraneous details” may be an option in some cases, Richins, 

, Simpson points to no case that imposed it as a
requirement. And here, we don’t regard this case as being so close
that the district court could only choose to admit the testimony if
it were given to the jury by stipulated account, as opposed to
instead permitting the State to call Jane as a live witness at trial.


                          CONCLUSION

¶65 For the foregoing reasons, we reject Simpson’s claim that
the district court abused its discretion under rule 403 by allowing
the State to present testimony from Jane about the prior sexual
assault. We accordingly affirm Simpson’s convictions.




 20220452-CA                     29