State v. Denos, 319 P.3d 699

Background

Defendant Thomas Wayne Denos was convicted of rape, forcible sodomy, and forcible sexual abuse for sexual acts committed against E.M. after a December 2010 party where E.M. was heavily intoxicated.
Denos's version: he entered the bedroom to remove a third party (Guest), stayed with E.M., and had consensual sex after cuddling and talking. E.M.'s testimony: she awoke multiple times to Denos touching her and performing oral sex, repeatedly told him "no," and was unconscious for portions of the encounters.
The trial court excluded defense cross-examination about (a) E.M.'s prior sexual encounter that night with Boyfriend under Utah Rule of Evidence 412, and (b) evidence about Guest (excluded though court later deemed Guest evidence not within Rule 412 scope).
The court admitted testimony under Utah Rule of Evidence 404(b) from three other women describing similar incidents in which Denos allegedly assaulted women after parties while they were asleep or incapacitated.
Denos appealed, arguing (1) the exclusion of Rule 412-related cross-examination violated his Sixth Amendment confrontation rights, and (2) the 404(b) evidence was improperly admitted.

Issues

Issue	Denos's Argument	State's Argument	Held
Whether excluding cross-examination about E.M.'s encounter with Guest violated Confrontation Clause	Exclusion prevented probing bias/context and showing he entered to remove Guest, undermining defense	Guest evidence not barred by Rule 412 but its exclusion was harmless; Denos could elicit invitation and testified to that	Guest-related evidence was not covered by Rule 412, but exclusion was harmless beyond a reasonable doubt
Whether excluding cross-examination about E.M.'s encounter with Boyfriend violated Confrontation Clause	Needed to show alternative explanation for E.M.'s guilt/crying; State opened the door so it should be allowed	Evidence about prior sexual behavior is barred by Rule 412; defendant failed to file required pretrial Rule 412 motion and State did not open the door	Exclusion proper: Boyfriend evidence was Rule 412 material and Denos waived it by not filing the required pretrial motion; State did not open the door
Whether the 404(b) testimony was admissible to prove lack of consent	404(b) evidence was improper character evidence and prejudicial	Testimony showed a similar modus operandi (attacks while victims unconscious after parties) and was admissible for lack-of-consent purpose	Admission of the 404(b) witnesses was within the trial court's discretion and not an abuse; probative value outweighed prejudice
Whether cumulative or unfair prejudice from 404(b) witnesses required exclusion	404(b) witnesses would unduly prejudice jury and some testimony (recent acquittal) weakened reliability	Similarities, need for evidence, and lack of alternative proof justified admission; any prejudice did not substantially outweigh probative value	Shickles factors favor admission overall; convictions affirmed

Key Cases Cited

Delaware v. Van Arsdall, 475 U.S. 673 (Cross-examination exclusion analyzed under Confrontation Clause principles)
State v. Clark, 219 P.3d 631 (Utah Ct. App.) (standard for Confrontation Clause and review of evidentiary rulings)
State v. Nelson-Waggoner, 6 P.3d 1120 (Utah 2000) (three-part test for Rule 404(b) admissibility)
State v. Verde, 296 P.3d 678 (Utah 2012) (multiple similar reports reduce likelihood of fabricated accounts)
State v. Marchet, 219 P.3d 75 (Utah Ct. App.) (admissibility of other-acts evidence where modus operandi is consistent)
State v. Shickles, 760 P.2d 291 (Utah 1988) (factors for weighing unfair prejudice vs. probative value of other-acts evidence)
State v. Hildreth, 238 P.3d 444 (Utah Ct. App.) (effect of prior acquittal on credibility of 404(b) witness)