State v. Rallison, 528 P.3d 1235

Background

Defendant Dustin Rallison, owner of a restaurant, was accused by five servers of repeated physical and sexual assaults at work; charges include multiple counts of sexual battery and forcible sexual abuse.
At a preliminary hearing the servers testified to conduct including buttocks/breast slapping, choke holds, and touching under clothing; one server ("Tiffany") reported a parking-lot assault in which her nipples were injured.
Before trial Rallison sought to admit 17 items of evidence; the State moved to exclude many under Utah Rule of Evidence 412 (the rape-shield rule) and Rule 403.
The district court excluded 16 of 17 items, ruling several items barred by Rule 412(a) and others excluded under Rule 403; Rallison appealed interlocutorily the exclusion of six items.
The court of appeals affirmed exclusion of evidence of servers slapping each other and servers flirting (items 11 and 12) as falling within Rule 412, but reversed exclusion of other items (including certain nude-selfie evidence, a text exchange, and testimony that one server had at one point viewed slapping as mutual) as improperly excluded.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether items 11 and 12 (server-on-server buttocks slapping, flirting, and related workplace touching) fall within Rule 412(a) and must be excluded	State: conduct is "other sexual behavior" or evidence of sexual predisposition barred by Rule 412	Rallison: the conduct is sexually innocuous workplace horseplay and relevant to his defense that his touching would not have caused affront or alarm	Held: Court affirmed exclusion as to evidence involving the alleged victims (items 11 and 12), but reversed as to evidence of cooks slapping each other (not involving victims) because Rule 412 does not apply to non-victims
Whether excluded Rule 412 evidence is nonetheless admissible under the constitutional exception (Rule 412(b)(3))	State: exclusion does not abridge defendant's rights because other avenues exist to present defense	Rallison: exclusion would foreclose meaningful presentation of his defense about workplace culture and consent	Held: Court rejected defendant's constitutional-necessity argument; evidence involving victims was not essential to a complete defense
Whether item 9 (Tiffany's text exchange with a friend describing hypothetical sexual conduct with Rallison that night) fits Rule 412(b)(2)'s exception for specific instances of sexual behavior with the accused	State: the texts are ambiguous, hypothetical, and not expressions of intent or sexual behavior with the accused, so not within the 412(b)(2) exception	Rallison: texts discuss specific hypothetical sexual behavior with the accused and Tiffany's contemporaneous fear and are admissible under 412(b)(2)	Held: Court reversed district court — 412(b)(2) does not require the accused have been aware of the messages; item 9 qualifies for the exception and may be admitted subject to Rule 403 analysis
Whether items 5, 10, and 17 (nude-selfie sharing with the accused, Tiffany giving password for password-protected photos, and testimony a server viewed slapping as mutual at one point) should be excluded under Rule 403	State: low probative value, high unfair prejudice, and risk jury will infer consent to assault from sexualized communications or images	Rallison: evidence is probative of the nature of relationships and consent, especially where interactions are similar or temporally proximate	Held: Court held the district court abused its discretion excluding these items under Rule 403; the probative value outweighed risks and limiting instructions can address prejudice

Key Cases Cited

State v. Martin, 44 P.3d 805 (Utah 2002) (broad construction of Rule 412 and the "sexually innocuous" concept)
State v. Tarrats, 122 P.3d 581 (Utah 2005) (policy basis for Rule 412 protections)
State v. Cuttler, 367 P.3d 981 (Utah 2015) (standard of review: abuse of discretion for evidentiary rulings)
Holmes v. South Carolina, 547 U.S. 319 (U.S. 2006) (defendant's right to present a complete defense)
State v. Beverly, 435 P.3d 160 (Utah 2018) (Rule 412(b) evidence must also be "otherwise admissible" under other rules like Rule 403)
State v. Boyd, 25 P.3d 985 (Utah 2001) (discussion of presumption of inadmissibility for past sexual conduct)
State v. Richardson, 308 P.3d 526 (Utah 2013) (prior similar sexual acts can have greater probative value)