State v. Lowther
2017 UT 34
| Utah | 2017Background
- John Marcus Lowther was charged with multiple sexual assaults; the State sought to admit testimony from three other alleged victims (A.P., C.H., C.R.) under Utah Rule of Evidence 404(b) invoking the "doctrine of chances" to prove lack of consent and mens rea in the K.S. rape prosecution.
- Each alleged victim described similar incidents involving intoxication and sexual contact; K.S.’s case included DNA linking Lowther to semen found on her.
- The district court admitted the other victims’ testimony, applying the Shickles multi-factor test to perform the Rule 403 balancing and concluding probative value outweighed prejudice.
- On appeal the Utah Court of Appeals affirmed 404(b) admissibility but held the district court erred by relying strictly on Shickles and said Verde’s four foundational requirements should govern the Rule 403 probative-value inquiry for doctrine-of-chances evidence.
- The Utah Supreme Court granted certiorari to decide whether Verde’s four requirements (materiality, similarity, independence, frequency) displace Shickles or otherwise constrain Rule 403 analysis.
Issues
| Issue | State's Argument | Lowther's Argument | Held |
|---|---|---|---|
| Whether the doctrine of chances is limited to rebutting fabrication | Doctrine applies broadly to rebut defenses like lack of consent or mens rea; Verde supports use beyond mere fabrication | Doctrine is limited to fabrication; application here is premature absent a fabrication claim | Doctrine of chances is not limited to fabrication; it can be used where consent or mens rea are in bona fide dispute |
| Whether Verde’s four foundational requirements displace Shickles for Rule 403 balancing | Verde’s requirements inform 404(b) relevance, but Rule 403 balancing is governed by Rule 403 text; Verde does not displace Shickles | Court of Appeals: Verde displaces Shickles for assessing probative value under Rule 403 in doctrine-of-chances cases | Verde’s requirements apply to 404(b) admissibility but do not displace Rule 403; courts must follow Rule 403 text and may consider Verde factors but are not limited to them |
| Whether district court abused discretion by applying Shickles mechanically | State: probative value of the other victims’ testimony outweighs unfair prejudice; district court’s Shickles-based analysis was acceptable for the time | Lowther: Shickles-based analysis overemphasized improper factors and produced error | District court abused its discretion by mechanically applying Shickles instead of balancing under the text of Rule 403; remand for fresh 403 analysis |
| Remedy given Lowther prevailed on appeal | N/A | N/A | Lowther may withdraw his conditional guilty plea; remand for district court to reconsider admissibility under Rule 403 text |
Key Cases Cited
- State v. Verde, 296 P.3d 673 (Utah 2012) (articulating doctrine of chances and four foundational requirements for 404(b) statistical inference)
- State v. Shickles, 760 P.2d 291 (Utah 1988) (listing multi-factor test often used to guide Rule 403 balancing)
- State v. Lucero, 328 P.3d 841 (Utah 2014) (clarifying that courts must follow Rule 403 text rather than mechanically applying Shickles factors)
- State v. Cuttler, 367 P.3d 981 (Utah 2015) (disavowing use of the "overmastering hostility" Shickles gloss and reaffirming Rule 403 text-based analysis)