State v. Lopez , 417 P.3d 116 ( 2018 )


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  •                 This opinion is subject to revision before final
    publication in the Pacific Reporter
    
    2018 UT 5
    IN THE
    SUPREME COURT OF THE STATE OF UTAH
    STATE OF UTAH,
    Appellee,
    v.
    KOMASQUIN LOPEZ,
    Appellant.
    No. 20151094
    Filed February 9, 2018
    On Direct Appeal
    Third District, Salt Lake
    The Honorable Judge Paul Parker
    No. 141900304
    Attorneys:
    Sean D. Reyes, Att’y Gen., John J. Nielsen, Asst. Solic. Gen.,
    Salt Lake City, for appellee
    Teresa L. Welch, Andrea Garland, Nick A. Falcone,
    Salt Lake City, for appellant
    JUSTICE PEARCE authored the opinion of the Court, in which
    CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
    JUSTICE HIMONAS, and JUDGE DIREDA joined.
    Having recused herself, JUSTICE DURHAM did not participate;
    DISTRICT JUDGE MICHAEL D. DIREDA sat.
    JUSTICE PETERSEN became a member of the Court on
    November 17, 2017, after oral argument in this matter,
    and accordingly did not participate.
    JUSTICE PEARCE, opinion of the Court:
    INTRODUCTION
    ¶ 1 On the day she died, Shannon Lopez picked her husband
    Komasquin Lopez up from work. According to Lopez, he drove
    STATE v. LOPEZ
    Opinion of the Court
    home while he and Shannon argued in the cab of his truck. Lopez
    claimed that the argument continued until Shannon shot herself with
    a gun Lopez had in his truck. A jury disbelieved Lopez and
    convicted him of murder. On appeal, Lopez argues the district court
    erred in two ways. First, Lopez challenges the admission of expert
    testimony that assessed Shannon’s risk of suicide. Second, Lopez
    contends that the district court erred by admitting evidence that he
    had, on one occasion, pointed a gun at Shannon’s head, and that on
    another, he had leveled a gun at an ex-wife and threatened to kill
    her. Lopez also argues that the errors were harmful both
    individually and cumulatively, and that insufficient evidence existed
    to convict him.
    ¶ 2 We conclude that the State did not lay a sufficient foundation
    to demonstrate that the theory its expert employed could be reliably
    used to assess the suicide risk of someone who had died. We also
    conclude that the district court erred by admitting the evidence of
    Lopez’s prior actions. The errors were harmful. We reverse.
    BACKGROUND
    ¶ 3 Lopez and Shannon, who were married at the time of
    Shannon’s death, both enjoyed shooting guns. Lopez used a gun
    throughout his career in the military and law enforcement. Shannon,
    who had been introduced to firearms at the age of nine, was a
    recreational shooter. Lopez and Shannon kept multiple guns in their
    home. Lopez usually carried a gun in his truck and another on his
    person.
    ¶ 4 On the night of Shannon’s death, Shannon picked Lopez up
    from work. Shannon had consumed methamphetamine in a quantity
    that the medical examiner described as “toxic.” Lopez also had
    methamphetamine in his system. During their commute, Lopez and
    Shannon argued about Shannon’s methamphetamine use and their
    financial problems. Lopez said during a police interview “that
    Shannon’s last words were . . . that she would take the kids and go to
    her father’s[.]” He “repeat[ed] . . . several times during [one of the]
    interview[s]” that “[s]he said she’d take the kids, she’s already
    packed, and she’ll leave . . . .” He further stated that he “told her . . .
    during the argument he was going to leave her also.” During his trial
    testimony, Lopez maintained that he said he would leave her, but
    denied hearing Shannon say that she would leave him.
    ¶ 5 Lopez testified that as he was making a left hand turn, he
    heard the sound of breaking glass. Lopez turned to see that Shannon
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                            Opinion of the Court
    was “slumped forward.” Lopez tried to turn the truck around to take
    Shannon to a hospital, but crashed into another car and then into a
    fence. Witnesses saw Lopez jump out of the truck and lie on the
    ground while saying “sorry mommy” or “sorry mama” repeatedly.
    ¶ 6 Shannon had been shot in her left ear. When police arrived,
    they found that Shannon’s legs were crossed at the ankles.
    Shannon’s right hand—Shannon was right handed—was hidden in
    her jacket sleeve. Officers found a gun and holster on the floor of the
    driver’s side of the cab. 1
    ¶ 7 Months before she died, Shannon sent a text message to
    Lopez expressing a desire to end her life. Shannon had spoken to her
    son, M.N., about suicide in the past. A month before she died,
    Shannon had threatened to shoot herself.
    ¶ 8 The State charged Lopez with criminal homicide murder.
    Because the medical examiner’s report ruled out the possibility that
    the gun had accidentally discharged, the key dispute was who fired
    the shot that killed Shannon.
    ¶ 9 The physical evidence was inconclusive. The medical
    examiner testified that the location of the wound was “atypical” for a
    suicide, but that he could not determine the manner of death
    conclusively. Examiners found gunshot residue on Lopez’s hand, but
    all that could be gleaned from this was that Lopez was “in proximity
    when [the] firearm was discharged.” A blood spatter analyst was
    unable to conclude whether Shannon’s wound was self-inflicted.
    ¶ 10 To prove that Shannon did not shoot herself, the State
    offered expert testimony from Dr. Craig Bryan, a clinical
    psychologist. Dr. Bryan specializes in the treatment of suicide
    patients using the Fluid Vulnerability Theory of Suicide (FVTS).
    FVTS is the “most commonly used theory and approach to
    developing treatment and understanding suicide risks.” The theory
    is based on “scientific evidence gained from clinical care of suicide
    patients as well as multidisciplinary scientific efforts
    internationally.”
    _____________________________________________________________
    1There was some dispute about whether witnesses had moved
    Shannon’s body and if the gun and holster were moved when the car
    was towed. Because these disputes are not relevant to our analysis,
    we do not discuss them here.
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    STATE v. LOPEZ
    Opinion of the Court
    ¶ 11 FVTS assesses two different types of risk: baseline and
    acute. Predispositions—including demographic factors, “[d]ifficulty
    managing emotions,” and “history of psychiatric disorders”—
    increase the baseline risk, meaning that “[i]ndividuals with many
    predispositions . . . . experience more suicidal crises more often and
    take longer to ‘recover’ from crises and discrete periods of emotional
    distress.” This baseline risk can be “offset[]” by “protective factors,”
    such as an optimistic outlook, a strong support network, or
    motherhood. “Acute risk,” on the other hand, “entails the emotional,
    physiological, behavioral, and cognitive factors associated with an
    active suicidal episode.” Taking baseline and acute risk together, the
    model posits that “a triggering event will only lead to suicide among
    individuals with sufficient [baseline risk].” When applying FVTS, Dr.
    Bryan conducts interviews with his patients. Sometimes, Dr. Bryan
    employs testing “designed to . . . identify the risk and protective
    factors in a way that might not be obvious to the respondent.”
    ¶ 12 Lopez challenged the admission of Dr. Bryan’s testimony
    on various grounds, including that it was neither helpful nor
    reliable. The district court admitted “Dr. Bryan’s opinion as to
    whether Shannon Lopez’s behavior prior to her death was
    inconsistent with suicide” into evidence. The district court excluded,
    however, “[a]ny testimony that Dr. Bryan’s opinions are definitive or
    based on scientific certainty.”
    ¶ 13 In response to Dr. Bryan’s testimony, the defense called an
    expert who testified that Shannon’s death was a “classic suicide,”
    noting that “[t]ypically someone doesn’t hold their head still while
    you shoot them.”
    ¶ 14 The State also sought to offer evidence of several prior acts
    involving Lopez threatening a family member with a gun and/or
    pointing a gun at their head. The court allowed the admission of two
    of those acts. 2 The first described Lopez and Shannon talking with
    their coworker about how to kill effectively. To demonstrate, Lopez
    pulled out a gun and pointed it at Shannon’s head near her left ear.
    The district court found that “the act of someone describing the best
    place to shoot someone, in fact even demonstrating that, is very
    _____________________________________________________________
    2The district court rejected the State’s argument that those acts, as
    well as the others, could be admitted under the doctrine of chances.
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    relevant to the identification of someone who may have done that at
    another time.”
    ¶ 15 The second prior act involved an argument Lopez had with
    an ex-wife where he “hit her in the stomach,” “pointed a gun at her
    head,” and verbally threatened to kill them both if she ever sought a
    divorce. The district court reasoned this evidence was admissible
    because “the identity of the shooter is the issue, and therefore, it is
    relevant to that, what he did to a prior spouse, under a prior
    circumstance when she indicated she was leaving him.”
    ¶ 16 The jury found Lopez guilty of murder. The jurors
    additionally found Lopez had used a dangerous weapon. The
    district court sentenced Lopez to sixteen years to life. Lopez appeals.
    ISSUES AND STANDARD OF REVIEW
    ¶ 17 Lopez first argues that Dr. Bryan’s testimony should not
    have been admitted because, among other things, it lacked an
    adequate foundation. Next, Lopez contends that the character
    evidence should not have been admitted because it was not relevant,
    not offered for a proper purpose, and was prejudicial. Lopez also
    argues cumulative error and claims there was insufficient evidence
    to convict him.
    ¶ 18 We review the admission of expert testimony and character
    evidence under an abuse of discretion standard. State v. Maestas, 
    2012 UT 46
    , ¶ 154, 
    299 P.3d 892
    ; State v. Thornton, 
    2017 UT 9
    , ¶ 56, 
    391 P.3d 1016
    . Because we agree with Lopez on the first two grounds,
    and conclude they constitute harmful error, we do not reach the
    issues of cumulative error or sufficiency of the evidence.
    ANALYSIS
    I. The District Court Abused Its Discretion by Admitting
    Dr. Bryan’s Testimony Without an Adequate Foundation
    Establishing Its Reliability
    ¶ 19 Lopez challenges the admissibility of Dr. Bryan’s
    testimony. Dr. Bryan used the Fluid Vulnerability Theory of Suicide
    (FVTS) to assess the likelihood that Shannon had taken her own life.
    Lopez asserts that the FVTS testimony was not helpful, that it
    impermissibly addressed the ultimate issue, and that there was not
    an adequate threshold showing of its reliability. We agree with
    Lopez that the State did not make the threshold showing of FVTS’s
    reliability when applied to a decedent, and that therefore the district
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    STATE v. LOPEZ
    Opinion of the Court
    court abused its discretion by admitting Dr. Bryan’s testimony under
    Utah Rule of Evidence 702. 3
    ¶ 20 We rely on our district court judges to act as
    “gatekeeper[s]” to “screen out unreliable expert testimony.” UTAH R.
    EVID. 702 advisory committee’s note. This requires our judges to
    view proposed expert testimony with “rational skepticism.” 
    Id. Utah Rule
    of Evidence 702 details the framework a judge should employ
    to perform her gatekeeping function. First, the judge must determine
    that the expert is qualified “by knowledge, skill, experience, training,
    or education” and that the proposed expert testimony will “help the
    trier of fact to understand the evidence or to determine a fact in
    issue.” UTAH R. EVID. 702(a). Second, the judge inquires as to
    whether the “[s]cientific, technical, or other specialized knowledge”
    underlying the expert’s testimony meets a threshold showing that
    the “principles or methods . . . underlying . . . the testimony (1) are
    reliable, (2) are based on sufficient facts or data, and (3) have been
    reliably applied to the facts.” 
    Id. 702(b). ¶
    21 The threshold showing is satisfied if “the underlying
    principles or methods, including the sufficiency of facts or data and
    the manner of their application to the facts of the case, are generally
    accepted by the relevant expert community” or if the testimony
    meets a threshold showing of reliability. 
    Id. 702. If
    the expert
    testimony clears those hurdles, the district court may admit the
    evidence. And we afford the district court discretion in its decision to
    admit or exclude expert testimony. State v. Maestas, 
    2012 UT 46
    ,
    ¶ 122, 
    299 P.3d 892
    . The district court abuses its discretion when “no
    reasonable person would take the view the trial court adopted.” 
    Id. A. There
    Was No Threshold Showing that the Fluid
    Vulnerability Theory of Suicide Is a Reliable Method to
    Evaluate the Risk of Suicide of a Deceased Person
    ¶ 22 Although Lopez raises several challenges to Dr. Bryan’s
    testimony, we focus our analysis on the question of threshold
    reliability. As noted above, the State could have met this threshold
    showing by demonstrating that the method Dr. Bryan used is
    “generally accepted by the relevant expert community” or by
    establishing that the principles underlying his testimony are
    _____________________________________________________________
    3Because we resolve this matter under Utah Rule of Evidence 702,
    we do not reach Lopez’s alternative arguments.
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    “reliable, . . . based upon sufficient facts or data, and . . . have been
    reliably applied to the facts.” UTAH R. EVID. 702.
    ¶ 23 The State attempted to meet its rule 702 burden with
    evidence that FVTS 4 is generally accepted in the psychological
    community. 5 When asked if FVTS was generally accepted, Dr. Bryan
    _____________________________________________________________
    4 FVTS assesses an individual’s risk for suicide based on his or
    her baseline and acute risk. Baseline risk factors include genetics,
    demographics, and “a history of suicidal behavior,” among other
    things, and determine someone’s risk of suicide over time. Acute risk
    is “fluid” and takes into account someone’s physical and mental
    health as well as her thought process and emotional state. Protective
    factors—parenting, a sense of purpose, and a strong support system,
    to name a few—also play an important role because they mitigate
    someone’s risk factors.
    5  The parties argue that a number of cases should inform our
    analysis. See Halvorsen v. Plato Learning, Inc., 167 F.App’x. 524 (6th
    Cir. 2006); State v. Guthrie, 
    627 N.W.2d 401
    (S.D. 2001); Foster v. Globe
    Life & Accident Ins. Co., 
    808 F. Supp. 1281
    (N.D. Miss. 1992); Bethley v.
    Keller Constr., 
    836 So. 2d 397
    (La. Ct. App. 2002). These cases are not
    on point because they discuss psychological autopsies. Psychological
    autopsies seek to establish the cause of a person’s death. For
    example, in Guthrie, the court allowed testimony that “included an
    account of the common factors for persons at risk for suicide [and] a
    comparison of those factors to [that] 
    case.” 627 N.W.2d at 414
    . And,
    although the court took issue with an expert’s conclusory opinion,
    the court permitted the expert to testify concerning the “typical
    characteristics or profiles of suicidal persons” and whether the
    decedent “met a suicidal profile.” 
    Id. at 415–17.
        The cases addressing psychological autopsies are inapposite here.
    Although the testimony itself is similar, the method is not. Both
    parties have distinguished FVTS from a psychological autopsy. As
    Dr. Bryan said during the preliminary hearing,
    A psychological autopsy has many similarities to the
    methods I’ve used; however, it’s different in that the
    psychological autopsy is often intended to arrive at a
    psychiatric diagnosis for the decedent. In this case my
    purpose was not to try to diagnosis the individual. I
    was trying to make a determination about the
    likelihood of suicide.
    (continued . . .)
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    STATE v. LOPEZ
    Opinion of the Court
    replied that it was, elaborating that “when you look particularly at
    researchers who are treatment developers, [and] they are testing
    therapies to reduce suicidal behaviors, this particular model is the
    leading and the most commonly used theory and approach to
    developing treatment and to understanding suicide risks.” (Emphasis
    added). And, “[w]hen . . . use[d] [for] treatment[] . . . based on the
    principles contained within the theory, [there is] typically [a] 50 to 60
    percent reduction[] in suicidal behaviors.”
    ¶ 24 Dr. Bryan’s testimony addressed the acceptance of FVTS as
    a tool to evaluate patients. The foundation the State attempted to lay
    did not speak to the precise question the district court needed to
    answer: Is FVTS generally accepted as a means of assessing the risk
    of suicide in someone who has passed away? With respect to that
    question, Dr. Bryan provided no information on how effective the
    theory was at determining suicide risk of those who are deceased,
    nor did he indicate whether there was any peer-reviewed literature
    regarding this application. Indeed, it appears that Dr. Bryan never
    even addressed whether FVTS had ever been used to assess the risk
    of someone who had died.
    ¶ 25 The district court nevertheless concluded that the FVTS
    “methodology . . . is generally accepted in the psychological
    community.” As suggested above, the problem with this conclusion
    is that the State placed no evidence before the court that FVTS was
    generally accepted in the psychological community for the purpose
    of determining whether any particular death was the result of
    suicide. The evidence before the district court demonstrated that
    FVTS is based on “scientific evidence gained from clinical care of
    suicide patients as well as multidisciplinary scientific efforts
    internationally.” (Emphasis added). Dr. Bryan’s published works on
    suicide are similarly based on “[c]linical trials, epidemiological
    research as well as laboratory-based research.”
    ¶ 26 Demonstrating that FVTS was generally accepted to assess
    suicide risk in live patients is not the same as demonstrating that it is
    Because our analysis rests on the reliability of a method other than a
    psychological autopsy, and none of those cases otherwise speak to
    the use of FVTS to assess the likelihood of suicide, we assess FVTS’s
    reliability without reference to the cases that have analyzed the
    admission of psychological autopsy evidence.
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                             Opinion of the Court
    generally accepted to gauge whether a decedent died by her own
    hand. On the record before the district court, there were reasons to
    question whether FVTS is reliable as a post-mortem tool. Dr. Bryan
    referenced interviews with his patients to assess their suicide risk.
    And Dr. Bryan’s description of FVTS demonstrated its reliance on
    accurately identifying baseline and acute factors. Dr. Bryan never
    discussed whether he could accurately identify those factors in
    someone he had never interviewed, let alone someone who was
    incapable of being interviewed. For example, Dr. Bryan testified that
    Shannon’s acute risk for suicide was low because of her positive
    outlook, social engagement, and improved mood. Dr. Bryan never
    testified, however, that he could accurately assess those risks
    without actually interviewing Shannon. 6
    ¶ 27 The State argues that the “question of whether someone is
    at risk to commit suicide is the same question as whether someone
    was at risk—it merely focuses on a different time.” And the State
    may be correct about that, but the question for the district court was
    whether the difference in that timing undercut FVTS’s reliability. We
    do not rule out the possibility that FVTS could be used to determine
    whether a decedent was at risk of suicide, but the State needed to lay
    a foundation that it could. It failed to do so.
    ¶ 28 The district court held that FVTS was generally accepted,
    but did not draw a distinction between how FVTS had been used to
    gain general acceptance in the psychological community and the
    manner in which Dr. Bryan proposed to use it here. On the record
    before it, the district court abused its discretion by admitting the
    testimony as the product of a generally accepted scientific method.
    ¶ 29 The State could have also satisfied the threshold showing
    by offering evidence that the “principles or methods . . . underlying
    . . . the testimony (1) are reliable, (2) are based on sufficient facts or
    _____________________________________________________________
    6  Or, indeed, anyone. It does not appear that Dr. Bryan
    interviewed anyone in connection with his opinion, opting instead to
    rely on materials the State selected for him. These materials included
    transcripts of police-conducted interviews, police reports, the
    medical examiner’s report, Shannon’s medical records, cell phone
    records, and something Shannon posted on Facebook on the day she
    died. Dr. Bryan testified that the interviews gave him all the
    information that he needed, but this statement was not sufficient to
    lay a foundation for this seemingly novel use of FVTS.
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    STATE v. LOPEZ
    Opinion of the Court
    data, and (3) have been reliably applied to the facts.” UTAH R. EVID.
    702(b). For the same reasons we have just discussed, we conclude
    that there was an insufficient basis for the district court to conclude
    that FVTS is reliable when used to assess suicide risk post-mortem. 7
    B. Dr. Bryan’s Testimony Likely Swayed the Jury and
    Was Therefore Harmful Error
    ¶ 30 “[A]n [evidentiary] error requires reversal only if there is ‘a
    reasonable likelihood of a more favorable result’ for the accused had
    the error not occurred.” State v. Tuttle, 
    780 P.2d 1203
    , 1213 n.12 (Utah
    1989) (citation omitted). “A reasonable likelihood of a more
    favorable outcome exists if our confidence in the result of the trial is
    eroded.” 
    Id. (citation omitted).
    Because the admission of Dr. Bryan’s
    testimony has eroded our confidence in the jury’s verdict, we
    conclude that the error was harmful.
    ¶ 31 As the State said multiple times, this case hinged on
    whether Lopez or Shannon fired the weapon. Some evidence pointed
    to Lopez, including the fact that Shannon was right-handed and was
    shot on the left side of her head. Lopez “admitted . . . that [Shannon]
    was not familiar with [the gun].” The gun and holster were also
    found on the driver’s side of the car (where Lopez had been) and
    Shannon’s right hand remained hidden in her sleeve.
    ¶ 32 Other evidence suggested Shannon took her life. An expert
    testified that this was a “classic suicide” and “[t]ypically someone
    doesn’t hold their head still while you shoot them.” 8 There was also
    evidence that Shannon was experienced with firearms and could
    shoot with her left hand, albeit with some difficulty. And there was
    evidence that Shannon had mentioned suicide on occasion.
    ¶ 33 Given this conflicting evidence, Dr. Bryan’s opinion that
    Shannon’s death was inconsistent with suicide likely swayed the
    jury. It was the strongest statement the State introduced to
    demonstrate that Shannon’s death was not a suicide. Without Dr.
    Bryan’s testimony, the most direct evidence speaking to whether
    _____________________________________________________________
    7 Lopez also contends that Dr. Bryan’s opinion was not based on
    sufficient facts and data and that he did not reliably apply FVTS to
    the facts of the case. We offer no opinion on these contentions.
    8  The State has not challenged the admission of this expert’s
    testimony.
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    Shannon had killed herself was a State expert opining that the
    location of the wound was “atypical” for suicide.
    ¶ 34 Dr. Bryan’s testimony drove to the heart of the matter such
    that we conclude that the admission of Dr. Bryan’s testimony on the
    foundation presented was prejudicial.
    II. The District Court Abused Its Discretion by Admitting
    Evidence of the Prior Acts to Attempt to Prove that
    Lopez Fired the Weapon
    ¶ 35 Lopez also argues that the district court abused its
    discretion by admitting evidence of prior instances of Lopez pointing
    guns at family members. The State initially sought the admission of
    six instances where Lopez pointed a gun at a member of his family.
    The State argued that this evidence could be admitted for a number
    of non-character purposes, including lack of mistake, knowledge,
    intent, and identity. Lopez countered by arguing, among other
    things, that the State was seeking to admit the testimony solely to
    show that he had a propensity to point firearms at family members.
    ¶ 36 The district court excluded four of the prior acts but
    allowed the State to introduce evidence that Lopez had discussed the
    best way to commit suicide or kill someone, and that in the course of
    that discussion, he had placed his gun behind Shannon’s left ear. The
    district court also admitted testimony that during an argument with
    a former spouse, Lopez had pointed a gun at her and suggested that
    if she were to leave him, he would kill them both. The district court
    reasoned that both of these acts could be admitted for the non-
    character purpose of showing “the identity of the shooter.”
    ¶ 37 Lopez challenges the district court’s decision to admit these
    prior acts. Specifically, Lopez argues that: (1) admission of the prior
    acts was not relevant to a proper non-character purpose and (2) the
    probative value of such evidence was substantially outweighed by
    its ability to unfairly prejudice the jury.
    ¶ 38 Generally, “[e]vidence of a crime, wrong, or other act is not
    admissible to prove a person’s character in order to show that on a
    particular occasion the person acted in conformity with the
    character.” UTAH R. EVID. 404(b)(1). We recognize an exception to
    that rule where prior acts are “relevant[,] offered for a genuine,
    noncharacter purpose,” and not unduly prejudicial. State v. Lucero,
    
    2014 UT 15
    , ¶ 13, 
    328 P.3d 841
    , abrogated on other grounds by State v.
    Thornton, 
    2017 UT 9
    , 
    391 P.3d 1016
    . “[G]enuine, noncharacter
    purpose[s],” 
    id., include but
    are not limited to “proving motive,
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    STATE v. LOPEZ
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    opportunity, intent, preparation, plan, knowledge, identity, absence
    of mistake, or lack of accident.” UTAH R. EVID. 404(b). The district
    court admitted the two prior acts reasoning that they were relevant
    to show the identity of the person who fired the weapon.
    ¶ 39 We have generally upheld the admission of prior acts to
    show identity in two circumstances. First, we have upheld the
    admission of prior acts to prove identity because the evidence
    reveals that the defendant has a modus operandi. See Lucero, 
    2014 UT 15
    , ¶ 15. In this context, we have spoken of modus operandi as an
    “intermediate inference” that demonstrates identity. 
    Id. (“In seeking
    admission of prior acts for the purpose of proving ‘identity,’ parties
    are most often actually seeking to admit evidence of an intermediate
    inference, such as modus operandi, that bears on the ultimate issue
    of identity.” (footnote omitted)).
    ¶ 40 To use a prior act to show modus operandi, the prior act
    must bear a “very high degree of similarity” to the charged act and
    demonstrate “a unique or singular methodology.” 
    Id. (citation omitted).
    For example, in Lucero, we concluded that a prior act of
    child abuse was “remarkably similar” to the charged crime where a
    mother was accused of fatally injuring her toddler. 
    Id. ¶¶ 1–8,
    16.
    “Both injuries occurred along the spinal column and were caused by
    the spine being bent unnaturally.” 
    Id. ¶ 16.
    The two acts also
    “occurred within days of each other.” 
    Id. Because of
    the similarity of
    the injuries, methods, and “temporal proximity,” we held that the
    evidence was properly admitted as evidence of a modus operandi.
    
    Id. ¶ 41
    We have also affirmed the introduction of 404(b) evidence
    where the perpetrator had a particular method of robbing Payless
    Shoe stores. State v. Decorso, 
    1999 UT 57
    , ¶¶ 27–28, 
    993 P.2d 837
    ,
    abrogated on other grounds by Thornton, 
    2017 UT 9
    . Each time, the
    accused pretended to be a customer and waited until the store was
    closed and locked to rob it. 
    Id. ¶ 27.
    The victim in both instances was
    a female store clerk. 
    Id. The perpetrator
    took two pairs of shoes the
    first time, and had three pairs ready to take the second time. 
    Id. The accused
    also wore or planned to wear rubber gloves in both
    instances and cut or removed the telephone cord. 
    Id. Based on
    these
    similarities, we concluded that the “trial court did not abuse its
    discretion in concluding that these were ‘signature-like’ crimes.” 
    Id. ¶ 42
    In contrast, here, the admitted events are not similar
    enough to demonstrate a modus operandi. To find that the prior
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    incident of Lopez pointing a gun at Shannon to demonstrate how to
    kill effectively was admissible, the court emphasized “the similarity
    between the position of the gun as demonstrated and the position of
    the gun in the crime that was committed.” And the district court was
    correct that the positioning was indeed similar: in the prior act and
    the crime, the gun was pointed at or near Shannon’s left ear. But the
    commonality of the positioning of the gun on a single occasion is not
    enough to establish that Lopez had a modus operandi when it came
    to pointing a gun. The similar positioning does not establish a
    “signature” like the combination of commonalities in Decorso did;
    pointing a gun in an approximate location is not the same as entering
    the same chain of shoe stores right before closing and using the same
    method to rob it. See 
    id. ¶¶ 27–28.
    There simply are not enough
    factual similarities between the gun pointing incidents to constitute a
    modus operandi.
    ¶ 43 The other admitted act—Lopez threatening to shoot his ex-
    wife if she left him—is not sufficiently similar to the alleged behavior
    to be considered a modus operandi. The district court noted that the
    “similarities between the crimes are very close” because both of
    them involved “[p]ointing a gun at a spouse in the context of . . . the
    discussion that the spouse was leaving.” But threatening one’s wife
    with a gun on two occasions is not a “unique or singular
    methodology.” Lucero, 
    2014 UT 15
    , ¶ 15 (citation omitted). Indeed,
    neither the context of the act nor its execution is similar enough to
    the charged conduct to suggest a modus operandi.
    ¶ 44 We have also upheld the admission of 404(b) evidence
    when it supported an intermediate inference that tied the defendant
    to the charged crime. For example, in State v. Reece, we allowed prior
    act evidence “showing that [the defendant] had access to the type of
    gun investigators determined was likely the murder weapon.” 9 
    2015 UT 45
    , ¶ 58, 
    349 P.3d 712
    . The evidence was “offered for the
    noncharacter purpose of identi[ty.]” 
    Id. The defendant
    had “claimed
    that he could not have committed the murder because he did not
    even have access to [the murder weapon] when the victim was
    killed.” 
    Id. The State
    was able to rebut this defense by demonstrating
    that the defendant had stolen the firearm and therefore had access to
    the murder weapon. Id.
    _____________________________________________________________
    9Intermediate inferences include access to the murder weapon,
    motive, or common plan. 1 MCCORMICK ON EVID. § 190 (7th ed. 2016).
    13
    STATE v. LOPEZ
    Opinion of the Court
    ¶ 45 Similarly in State v. Shaffer, we permitted prior act evidence
    that the defendant had stolen a wallet. 
    725 P.2d 1301
    , 1308 (Utah
    1986). The State used the evidence to show access to the murder
    weapon because the defendant had used the identification in the
    stolen wallet to purchase the gun ten days prior to the murder. 
    Id. By demonstrating
    access to the identification, and thus the murder
    weapon, the State sought to “establish[] the identity of the defendant
    as the person in possession of the gun the killed [the victim].” 
    Id. ¶ 46
    And our court of appeals has also affirmed use of evidence
    to show identity by linking the defendant to the murder weapon. In
    State v. Clark, the court permitted evidence of a prior shooting where
    the same gun was used in the charged crime. 
    2014 UT App 56
    ,
    ¶¶ 21–22, 
    322 P.3d 761
    . The court reasoned that, because the
    defendant
    assert[ed] that he was not present at the [subsequent]
    shooting, identity of the perpetrator was clearly at
    issue in this case. . . . Evidence that [the] [d]efendant
    was carrying the . . . handgun when he arrived at the
    scene of the [prior] shooting, that he displayed a
    familiarity with the handgun’s operation, and that he
    actually used the handgun in that incident all tend to
    show that the handgun was actually his.
    
    Id. ¶ 22.
    Therefore, the use of the gun in the prior shooting tended to
    show that the defendant was the perpetrator in the later shooting by
    demonstrating that he likely had access to the gun. 
    Id. ¶ 47
    The evidence at issue here did not support any
    intermediate inference of identity like those in Reece, Shaffer, or Clark.
    The State did not, for example, seek to show the identity of the
    shooter with evidence that Lopez had access to a firearm like the one
    that killed Shannon. Rather, the district court said it would admit the
    evidence that Lopez had pointed a gun at Shannon to prove
    “identification” and the evidence that Lopez had aimed a firearm at
    an ex-wife and threatened to kill her to show the “identity of the
    shooter.” In other words, the district court admitted the evidence
    because it tended to show that Lopez had in the past pointed guns at
    family members. And the fact that he had done this in the past
    suggested that he had done it on the night Shannon died. This is
    nothing more than the propensity evidence 404(b) excludes, and the
    district court abused its discretion by admitting it. See 1 MCCORMICK
    14
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                             Opinion of the Court
    ON  EVID. § 190 (7th ed. 2016) (“[T]he need to prove identity should
    not be, in itself, a ticket to admission.”).
    ¶ 48 On appeal, the State raises an argument that the district
    court rejected below. The State argues that the district court could
    have admitted the evidence because it established identity through
    the doctrine of chances. The district court rejected that argument,
    and the State did not cross-appeal that determination. As such, the
    State asks us to affirm the district court on an alternative ground
    apparent from the record. Bailey v. Bayles, 
    2002 UT 58
    , ¶ 20, 
    52 P.3d 1158
    (“[A]n appellate court may affirm the judgment appealed from
    if it is sustainable on any legal ground or theory apparent on the
    record.”). We decline the State’s invitation, as it is not apparent from
    the record that the district court abused its discretion by refusing to
    admit the evidence through the doctrine of chances.
    ¶ 49 As an initial matter, we have not previously applied the
    doctrine of chances to show identity. We have held that the doctrine
    of chances can “rebut a charge of fabrication.” State v. Verde, 
    2012 UT 60
    , ¶ 47, 
    296 P.3d 673
    , abrogated on other grounds by Thornton, 
    2017 UT 9
    . We have also concluded that the doctrine can be used to show the
    requisite mens rea or lack of consent in a rape case. State v. Lowther,
    
    2017 UT 34
    , ¶¶ 25–26, 
    398 P.3d 1032
    . And we have noted that the
    doctrine might be used for other purposes, including to “rebut
    defenses based on mistake, coincidence, . . . accident,” and intent. 
    Id. ¶ 23.
    But we have not applied the doctrine to establish identity. We
    need not resolve whether such application would be proper because
    the doctrine is inapplicable to the set of facts presented here.
    ¶ 50 The doctrine of chances is “a theory of logical relevance
    that ‘rests on the objective improbability of the same rare
    misfortunate befalling one individual over and over.’” Verde, 
    2012 UT 60
    , ¶ 47 (citation omitted); See also Edward J. Imwinkelried, An
    Evidentiary Paradox: Defending the Character Evidence Prohibition by
    Upholding a Non-Character Theory of Logical Relevance, the Doctrine of
    Chances, 40 U. RICH. L. REV. 419, 448 (2006) (“The claim is based on
    the disparity between the expected and actual values: How many
    incidents would we expect the average person to be involved in, and
    how many incidents was the defendant involved in?” (footnote
    omitted)).
    ¶ 51 United States v. Woods ably illustrates the doctrine’s
    application. 
    484 F.2d 127
    (4th Cir. 1973). There, the defendant was
    tried for the murder of a child in her care. 
    Id. at 128.
    The child died
    from respiratory problems, though when taken to the hospital for
    15
    STATE v. LOPEZ
    Opinion of the Court
    those same troubles on prior occasions, the doctors sent him home
    because he was perfectly healthy. 
    Id. at 129–30.
    The State’s expert
    testified that there was a three in four chance that the child was
    smothered as opposed to dying from natural causes. 
    Id. at 130.
    In
    order to prove that Woods smothered the child, the State presented
    evidence that nine other children in the defendant’s care suffered
    from twenty similar respiratory episodes, and that seven of those
    children died. 
    Id. The court
    concluded that the evidence was
    admissible     because,   when        “considered collectively, . . . an
    unmistakable pattern emerges. That pattern overwhelmingly
    establishes defendant’s guilt.” 
    Id. at 135.
        ¶ 52 Much like the unexpected death of otherwise healthy
    children, other doctrine of chances cases involve rare events
    happening with unusual frequency. See 
    id. In a
    classic English case,
    for example, the defendant was convicted of murdering his wife,
    who was found dead in her bathtub. Rex v. Smith, 11 Crim. App. 229,
    84 L.J.K.B. 2153 (1915). The court permitted evidence that two other
    wives of the defendant had also died in their bathtubs “under nearly
    the same circumstances.” 
    Id. Similarly, in
    United States v. York, the
    Seventh Circuit allowed evidence of a prior crime under the doctrine
    of chances. 
    933 F.2d 1343
    , 1349–52 (7th Cir. 1991), overruled on other
    grounds by Wilson v. Williams, 
    182 F.3d 562
    (7th Cir. 1999). The
    defendant was tried for insurance fraud after taking out policies on
    his colleague and their bar. 
    Id. at 1345–47.
    Two homemade
    explosives destroyed the bar; his colleague was also killed, though
    the evidence was unclear regarding whether she had been killed
    before the explosion. 
    Id. at 1346.
    The court permitted the State to
    introduce evidence that the defendant had taken out a policy on his
    wife and later killed her to demonstrate that the defendant intended
    to defraud the insurance company when he took out the policy
    (which was required to establish the crime). 
    Id. at 1349–50.
        ¶ 53 Here, the State offered several prior acts under the doctrine
    of chances, including the two that were admitted. One of these prior
    acts involved Shannon: the incident described in detail above. Two
    involved Lopez’s ex-wife: the incident described above and another
    where Lopez pointed a gun at her head while she was in a closet.
    The other three involved Lopez’s son, K.L. K.L. would have testified
    that after an altercation over pizza, he bit Lopez which caused Lopez
    to run to his gun safe to obtain a firearm which he then racked as
    16
    Cite as: 
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                             Opinion of the Court
    K.L. ran downstairs. 10 K.L. would have also testified that Lopez once
    pointed a gun at his head and tapped his head with the weapon.
    And K.L. would have testified that “the family would routinely
    point guns at one another in an ‘educational’ context.”
    ¶ 54 We have opined that for evidence to be admitted under the
    doctrine of chances, it must meet four foundational requirements:
    materiality, similarity, independence, and frequency. Verde, 
    2012 UT 60
    , ¶¶ 57–61; Lowther, 
    2017 UT 34
    , ¶ 40 n.66 (“We note that [Verde’s]
    foundational requirements are requirements within the context of
    rule 404(b). A court must find that each of the requirements has been
    satisfied to admit doctrine of chances evidence for purposes of a
    proper, non-character statistical inference.”). The evidence the State
    sought to introduce fails to clear this hurdle.
    ¶ 55 To be material, “[t]he issue for which the uncharged
    misconduct evidence is offered ‘must be in bona fide dispute.’”
    Verde, 
    2012 UT 60
    , ¶ 57 (emphasis omitted) (citation omitted). We
    agree with the State that the shooter’s identity is in “bona fide
    dispute.”
    ¶ 56 But the district court could have legitimately questioned
    the independence of the prior acts. See 
    id. ¶ 60.
    The independence
    requirement helps ensure there is no collusion between the victims
    and that the victims have not influenced each other’s recollections of
    what occurred. All but one of the prior acts involved either K.L. or
    Lopez’s ex-wife (K.L.’s mother). And K.L. and Lopez’s ex-wife lived
    together for over a year after all five of the prior acts involving them
    occurred. This provided ample opportunity for ex-wife and K.L. to
    discuss the incidents and compromise the independence of their
    recollections.
    ¶ 57 The remaining two factors, similarity and frequency,
    interact with each other to become a safeguard against the doctrine
    of chances becoming a work-around for the admission of otherwise
    improper propensity evidence. For doctrine of chances purposes,
    frequency does not mean just how many times a prior act has
    _____________________________________________________________
    10  K.L.’s testimony was confused regarding whether Lopez
    pointed a firearm at him. At one point, K.L. stated that he “didn’t see
    [Lopez] point the gun at [him],” but later said—regarding what
    seems to be the same incident—that Lopez aimed the gun at him at
    close range.
    17
    STATE v. LOPEZ
    Opinion of the Court
    occurred, but whether “[t]he defendant [has] been accused of the
    crime or suffered an unusual loss ‘more frequently than the typical
    person endures such losses accidentally.’” 
    Id. ¶ 61
    (emphasis
    omitted) (citation omitted). Similarity assumes importance in this
    inquiry because a district court could logically conclude that the
    more similarities repeated events share, the less likely they are to
    occur frequently by accident.
    ¶ 58 And here, Lopez’s prior acts did not share a great deal of
    similarity. Although each involved Lopez drawing a firearm in the
    presence of family members, they happened in very different
    contexts. The two incidents where Lopez threatened his ex-wife with
    a gun are the most similar to one another but because his ex-wife
    “could not recall the [closet] incident with great detail[,]” the district
    court may not have been well-positioned to accurately assess the
    degree of similarity of those events. And the prior act in which K.L.
    thought he heard Lopez rack a gun bears some resemblance to those
    two. But the other prior acts describe different actions. Two of the
    other events—pointing a gun to “educat[e]” his family and pointing
    a gun at Shannon in front of a co-worker to show the most effective
    way to kill, do not bear great similarity to the instances where Lopez
    pointed a firearm during a domestic argument. The dissimilarity
    between the actions makes it difficult to see how the district court
    would have abused its discretion in finding that these prior acts
    were not suitable candidates for admission under the doctrine of
    chances.
    ¶ 59 And the lack of similarity made it more difficult for the
    State to meet its burden of demonstrating frequency. 11 Had the prior
    _____________________________________________________________
    11 The proponent must establish that, together with
    the uncharged incident, the charged incident would
    represent an extraordinary coincidence. In some cases,
    that will be obvious. [Rex] is a case in point. In a fact
    situation such as [Rex], the jury hardly needs an
    expert’s testimony to appreciate that, on average,
    finding one’s spouse drowned in the family bathtub is
    at most a ‘once in a lifetime’ experience. In other cases,
    though, the proponent may need to introduce
    independent evidence to establish the ordinary
    incidence of the type of event in which the defendant
    was involved.
    (continued . . .)
    18
    Cite as: 
    2018 UT 5
                            Opinion of the Court
    acts been multiple incidents of Lopez shooting a person by accident,
    or several occasions of placing a firearm to someone’s ear during a
    fight, the district court possibly could have concluded that those
    actions would not occur repeatedly by accident. 12 But on these facts,
    the district court could readily conclude that Lopez had not suffered
    the “same rare misfortune” repeatedly. 13 Verde, 
    2012 UT 60
    , ¶ 47
    (citation omitted).
    ¶ 60 Because of this, it is not apparent on the record that the
    district court abused its discretion by refusing to allow this evidence
    in under the doctrine of chances. Bailey, 
    2002 UT 58
    , ¶ 20; Verde, 
    2012 UT 60
    , ¶¶ 57–61.
    ¶ 61 Although the 404(b) evidence was admitted in error, “an
    [evidentiary] error requires reversal only if there is ‘a reasonable
    Imwinkelried, An Evidentiary Paradox, supra ¶ 50, at 437
    (footnotes omitted).
    12 What distinguishes the doctrine of chances from character
    evidence is the intermediate inference the jury makes. With character
    evidence, the jury would infer from the prior misconduct that the
    defendant must have “bad character,” and thus must be guilty
    because the defendant “acted ‘in character.’” Imwinkelried, An
    Evidentiary Paradox, supra ¶ 50, at 426. Using the doctrine of chances,
    however, the jury makes a decision about the weight of prior act
    evidence based on “the objective improbability of so many
    [incidents].” 
    Id. at 436.
    Similarity and frequency are both important
    inputs for determining this improbability; the less similar the acts,
    the more probable it is that they would occur in the general
    population. And the less frequently they occur in the general
    population, the more it is “objective[ly] improbabl[e]” that so many
    incidents would occur randomly. See 
    id. Thus, to
    determine
    probability, similarity and frequency may be examined in tandem.
    13 “If the judge has no satisfactory basis for determining the
    frequency of such accidental occurrences among the general
    populace, the judge may not admit the uncharged misconduct
    evidence under the aegis of the doctrine of chances.” Edward J.
    Imwinkelried, The Use of Evidence of An Accused’s Uncharged
    Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf
    the Character Prohibition, 51 OHIO ST. L. J. 575, 592 (1990). There was
    no such basis here.
    19
    STATE v. LOPEZ
    Opinion of the Court
    likelihood of a more favorable result’ for the accused had the error
    not occurred.” State v. Tuttle, 
    780 P.2d 1203
    , 1213 n.12 (citation
    omitted). We have concluded that admission of less probative
    character evidence was harmless in State v. Hamilton. 
    827 P.2d 232
    ,
    233 (Utah 1992). The prior act evidence there concerned the
    defendant physically abusing his girlfriend. 
    Id. at 239–40.
    Even
    without the prior act, the remaining evidence was strong: the
    defendant was seen with the victim in his truck after she went
    missing, her hairs were found in his truck, and his fingerprints were
    found on beer cans near the location he left the body. 
    Id. at 234–35.
    As a result, we held the admission of the prior act evidence
    harmless. 
    Id. at 233.
        ¶ 62 In State v. Webster, the court of appeals reversed a
    conviction based upon the improper admission of character evidence
    because—after omitting the impermissible character evidence—the
    court of appeals opined that it was “not confident” that the jury
    would have convicted on the remaining evidence. 
    2001 UT App 238
    ,
    ¶ 39, 
    32 P.3d 976
    . The defendant, a car salesman, was accused of
    stealing a car off the lot. 
    Id. ¶¶ 1–8.
    The court found harmful error
    where evidence had been admitted that Webster had stolen a car
    previously along with a statement from his wife confirming that he
    had driven the stolen car around. 
    Id. ¶ 39.
    The court found the
    remaining evidence, though sufficient to convict, too insubstantial in
    comparison to the erroneously admitted evidence. 
    Id. The defendant
    was employed as a salesman at the lot where the car was stolen,
    someone had seen him drive off the lot with the car even though
    salesmen were not allowed to do so, the defendant quit his sales job
    after only two weeks, and the car was ultimately found in front of
    the apartment complex that the defendant lived at. 
    Id. ¶ 39.
    The
    court reversed because “the damning statements . . . and his
    apparent history of taking cars that did not belong to him could
    easily have been the deciding factors . . . .” 
    Id. ¶ 63
    Here, the remaining evidence is less conclusive than that in
    either Webster or Hamilton. Unlike the fingerprint and hair evidence
    in Hamilton, the physical evidence here was inconclusive. Compare
    
    Hamilton, 827 P.2d at 234
    –45, with supra ¶ 9. The State introduced the
    testimony of the medical examiner who opined that the wound
    location was strange for a suicide. But, Lopez called an expert who
    testified the death was a “classic suicide.” The jury also heard
    evidence that Shannon had previously discussed suicide. On this
    record, there is a “reasonable likelihood” that the character evidence
    20
    Cite as: 
    2018 UT 5
                            Opinion of the Court
    could have likely swayed the jury toward conviction. 
    Tuttle, 780 P.2d at 1213
    n.12 (citation omitted).
    ¶ 64 The error in admitting the 404(b) evidence is reversible
    error because there was “a reasonable likelihood of a more favorable
    result” had the character evidence been excluded. 
    Id. (citation omitted).
                              CONCLUSION
    ¶ 65 We conclude that Dr. Bryan’s expert testimony was
    inadmissible because the State did not demonstrate that it met a
    threshold of reliability as Utah Rule of Evidence 702 requires. And
    because Dr. Bryan offered significant testimony on the key dispute in
    a case where much of the other evidence was ambiguous, this error
    was harmful. Furthermore, the district court abused its discretion in
    admitting evidence of Lopez’s prior acts for the purpose of showing
    identity. This error was also harmful. Accordingly, we reverse
    Lopez’s conviction and remand for proceedings consistent with this
    opinion.
    21
    

Document Info

Docket Number: Case No. 20151094

Citation Numbers: 2018 UT 5, 417 P.3d 116

Filed Date: 2/9/2018

Precedential Status: Precedential

Modified Date: 1/12/2023