When should Utah courts exclude prior bad acts evidence under the doctrine of chances? State v. Lowther Explained

In State v. Lowther, the Utah Court of Appeals addressed the proper framework for analyzing prior bad acts evidence under the doctrine of chances and highlighted critical errors in rule 403 balancing that can lead to reversal even when the underlying legal theory is sound.

Background and Facts

Lowther was charged with raping K.S., who testified that she awakened to find him penetrating her after she had been drinking at a movie premiere. The State sought to admit testimony from three other women who alleged similar assaults: A.P., who described being locked in a room while extremely intoxicated and pinned down; C.H., who awakened to find Lowther on top of her; and C.R., who felt fingers inside her while Lowther lay across her legs. The trial court admitted all three testimonies under rule 404(b) using the doctrine of chances to prove lack of consent.

Key Legal Issues

The primary issue was whether the trial court properly conducted the required rule 404(b) analysis, particularly the rule 403 balancing test for prior bad acts evidence admitted under the doctrine of chances. Lowther argued that the evidence lacked sufficient similarity and that its prejudicial effect outweighed its probative value.

Court’s Analysis and Holding

The Court of Appeals found that while the trial court did not abuse its discretion in applying the doctrine of chances, it committed reversible error by using the outdated Shickles factors instead of the proper Verde framework for rule 403 analysis. The court determined that A.P.’s testimony, which involved significantly more violent circumstances including physical restraint in a locked room while she was severely intoxicated and vomiting, carried little probative value for proving K.S. did not consent and created substantial risk of unfair prejudice.

Practice Implications

This decision emphasizes that Utah courts must apply the four Verde factors—materiality, similarity, independence, and frequency—when conducting rule 403 analysis for doctrine of chances evidence, not the superseded Shickles factors. Practitioners should carefully analyze the specific similarities and dissimilarities between prior acts and charged offenses, as significant differences in circumstances can render otherwise admissible evidence more prejudicial than probative. The case also demonstrates that even when multiple prior acts share general similarities, individual testimonies may still be excluded if they are particularly inflammatory relative to the charged crime.