State v. Green, 2023 UT 10

Background

Torrey J. Green, a former USU football player, was charged with sexual assaults by six women; the trials were consolidated and a jury convicted Green on eight counts and acquitted on four.
The State introduced each victim’s testimony in each case as other-acts evidence to rebut Green’s defense that the accusations were fabricated.
The district court admitted the other-acts evidence based on the doctrine of chances and rule 404(b); defense counsel then moved to consolidate the cases.
The State also offered many out-of-court statements (family, friends, essays, a poem, and a Tribune‑article stipulation); most were admitted as prior consistent statements under rule 801(d)(1)(B).
On appeal the Utah Supreme Court abandoned the doctrine of chances, reviewed admissibility under the plain text of rules 402/403/404(b), found most contested evidence admissible (four hearsay statements erroneously admitted but harmless), rejected ineffective-assistance and cumulative-error claims, and affirmed the convictions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of other-acts evidence / doctrine of chances	Green: doctrine of chances and the other-acts evidence improperly allowed propensity inference; should exclude evidence as not addressing mistake/accident.	State: evidence admissible to rebut fabrication and consent defenses; court should either keep or abandon doctrine and rely on rules.	Court abandons doctrine of chances; applies plain text of rules 404(b)/402/403 and upholds admission as non-character, probative evidence not substantially outweighed by unfair prejudice.
Hearsay / prior consistent statement rule	Green: many out-of-court statements were inadmissible hearsay because declarants had motives to fabricate.	State: most challenged statements predate the primary alleged motive (Tribune articles) and qualify as prior consistent statements under rule 801(d)(1)(B).	All but four contested statements were admissible as prior consistent statements; the four erroneous admissions were harmless given overwhelming evidence.
Ineffective assistance of counsel (consolidation, stipulation, jury exhibits, failure to object)	Green: counsel erred by consolidating, agreeing to Tribune stipulation, letting exhibits go to jury, and not objecting to hearsay/racial theme.	State: counsel likely had tactical reasons; decisions were within reasonable professional judgment and any errors were not prejudicial.	Strickland test not met. Counsel’s choices had plausible tactical rationales; no reasonable probability of different outcome.
Cumulative error	Green: aggregate errors require reversal.	State: there were at most four harmless hearsay errors and no prejudicial counsel errors.	Cumulative-error claim fails because no multiple prejudicial errors; conviction affirmed.

Key Cases Cited

State v. Verde, 296 P.3d 673 (Utah 2012) (doctrine of chances origin and prior formulation).
State v. Richins, 496 P.3d 158 (Utah 2021) (doctrine-of-chances/Rule 403 balancing critique).
State v. Thornton, 391 P.3d 1016 (Utah 2017) (rules of evidence are primary law; rejected overly burdensome 404(b) formalism).
State v. Lucero, 328 P.3d 841 (Utah 2014) (relevance and Rule 403 framework).
State v. Killpack, 191 P.3d 17 (Utah 2008) (standards for admitting other-acts evidence).
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong ineffective assistance standard).
United States v. Kootswatewa, 893 F.3d 1127 (9th Cir. 2018) (prior consistent statement need only rebut one alleged motive).
Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996) (interpretation of prior‑consistent exemption; premotive requirement).