PUBLIC

No. 20180643-CA

IN THE UTAH COURT OF APPEALS

__________________

THE STATE OF UTAH,

Plaintiff/Appellee
v.
RONALD JAY RICHINS,
Defendant/Appellant.

__________________

AMENDED BRIEF OF APPELLANT

__________________

An appeal from a judgment of conviction of lewdness, a third-degree

felony, in the Third District Court, Salt Lake County, Utah, the Honorable Katie
Bernards-Goodman presiding.

Appellant is incarcerated

_________________

SARAH J. CARLQUIST (14610)

SEAN D. REYES (7969)
Utah Attorney General
160 East 300 South, 6th Floor
P.O. Box 140854
Salt Lake City, Utah 84114-0854
Salt Lake Legal Defender Assoc.
424 East 500 South, Suite 300
Salt Lake City, Utah 84111
appeals@sllda.com
(801) 532-5444
Attorney for Appellant

Attorney for Appellee

__________________
 TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................................... iii

INTRODUCTION ...................................................................................................... 1

ISSUES AND STANDARDS OF REVIEW ................................................................ 1

STATEMENT OF THE CASE ....................................................................................2

STATEMENT OF THE FACTS ..................................................................................3

The Trial Evidence ..........................................................................................3

The 404(b) Motion, Evidence, and Ruling ..................................................... 5

SUMMARY OF THE ARGUMENT ......................................................................... 11

ARGUMENT ............................................................................................................ 14

I. The trial court erred in ruling evidence of Richins’s other

bad acts was admissible under rule 404(b) and the error
caused prejudice. ...................................................................................... 14

A. The trial court abused its discretion in allowing the

prosecution’s proffered character evidence because the
evidence was really aimed at establishing an impermissible
propensity inference. .......................................................................... 17

B. The trial court erred when it concluded that the prosecution’s

proffered character evidence was inadmissible to show
absence of Daughter’s mistake. .......................................................... 19

C. The trial court erred when it concluded the prosecution’s

proffered character evidence was admissible to show
Daughter did not fabricate her claim against Richins. ..................... 24

D. The trial court erred when it concluded the prosecution’s

proffered character evidence was admissible under the
doctrine of chances. ........................................................................... 26

1. The trial court erred in finding the doctrine of chances’

materiality requirement satisfied. ................................................. 27

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 2. The trial court erred in finding the doctrine of
chances’ similarity prong was satisfied. ....................................... 29

3. The trial court also erred in holding the doctrine of

chances’ frequency prong was satisfied. .......................................34

E. The trial court erred in ruling the prosecution’s proffered

character evidence was admissible under rule 403. ..........................39

F. The trial court’s error caused prejudice. ............................................43

CONCLUSION ......................................................................................................... 47

CERTIFICATE OF COMPLIANCE ......................................................................... 48

CERTIFICATE OF DELIVERY ............................................................................... 49

Addendum A: Utah Code section 76-9-702

Addendum B: Sentence, Judgment, Commitment

Addendum C: State’s Notice of Intent to Rely on 404(b) Evidence

Addendum D: Objection to the State’s Notice

Addendum E: Parties’ oral argument

Addendum F: Trial court’s ruling

Addendum G: The State’s opening

Addendum H: The State’s closing

ii
 TABLE OF AUTHORITIES

Cases

DeLeon v. State, 77 S.W.3d 300 (Tx. Ct. App. 2001) ................................ 24, 26, 29

State v. Bagnes, 2014 UT 4, 322 P.3d 719 .............................................................. 21

State v. Balfour, 2018 UT App 79, 418 P.3d 79 ........................................... 2, 24, 47

State v. Beverly, 2018 UT 60 ............................................................................ 21, 22

State v. Bujan, 2006 UT App 322, 142 P.3d 581 ..................................................... 2

State v. Decorso, 1999 UT 57, 993 P.2d 837.................................................... 16, 17

State v. Gasper, 2018 UT App 164, 872 Utah Adv. Rep. 33 ....................... 15, 41, 43

State v. Graham, 2013 UT App 72, 299 P.3d 644 ................................................. 20

State v. Holbert, 2002 UT App 426, 61 P.3d 291 ................................................... 21

State v. Housekeeper, 2002 UT 118, 62 P.3d 444 ................................................. 20

State v. Levin, 2006 UT 50, 144 P.3d 1096 ........................................................... 20

State v. Lowther, 2017 UT 34, 398 P.3d 1032 ..................................... 27, 28, 40, 42

State v. Lucero, 2014 UT 15, 328 P.3d 841 ....................................................... 15, 16

State v. Martin, 2002 UT 34, 44 P.3d 805 .............................................................. 2

State v. McDonald, 2005 UT App 86, 110 P.3d 149 ............................................... 21

State v. Northcutt, 2008 UT App 357, 195 P.3d 499 ............................................ 20

State v. Page, 2018-Ohio-2866, --- N.E. 3d --- ................................................19, 28

State v. Rackham, 2016 UT App 167, 381 P.3d 1161 ............................................. 43

State v. Teuscher, 883 P.2d 922 (Utah Ct. App. 1992) ......................................... 20

State v. Thornton, 2017 UT 9,

391 P.3d 1016 .................................................... 8, 15, 16, 17, 22, 24, 26, 29, 34, 39

State v. Verde, 2012 UT 60, 296 P.3d 673 ……………8, 10, 16, 17, 19, 22, 23, 24, 26,
27, 29, 30, 31, 32, 33, 34, 36, 40, 41

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State. Lopez, 2018 UT 5, 417 P.3d 116 ........................................................ 30, 31, 37

Statutes

Utah Code § 76-9-702............................................................................................... 2

Other Authorities

Andrea J. Garland, Beyond Probability: The Utah Supreme Court’s

“Doctrine of Chances” in State v. Verde Encourages Admission of
Irrelevant Evidence, 3 Utah J. Crim. Law 6 (2018) ......................................36, 37

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 Evidence Prohibition, 51 OHIO ST. L.J. 575 (1990) .. 26, 27

Rules

Texas R. Evid. 404 .................................................................................................. 24

Utah R. Evid. 402 .............................................................................................. 10, 15

Utah R. Evid. 403 .................................................................. 9, 10, 13, 16, 39, 43, 48

Utah R. Evid. 404 .... …………………….1, 2, 5, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,
20, 22, 24, 26, 28, 29, 34, 40, 41, 48

iv
 No. 20180643-CA

IN THE UTAH COURT OF APPEALS

__________________

THE STATE OF UTAH,

Plaintiff/Appellee
v.
RONALD JAY RICHINS,
Defendant/Appellant.

__________________

AMENDED BRIEF OF APPELLANT 1

INTRODUCTION

Ronald Richins appeals his third-degree-felony conviction of lewdness by a

sex offender. His conviction hinged on the testimony of a teenaged eyewitness

and improperly admitted character evidence. Because the trial court abused its

discretion in admitting evidence of Richins’s character under rule 404(b), a

reasonable likelihood of a more favorable outcome at trial exists. Accordingly, we

ask that this Court reverse and remand for a new trial.

ISSUES AND STANDARDS OF REVIEW

Issue I: Did the trial court err when it ruled that evidence of Richins’s

other bad acts was admissible under rule 404(b) of the Utah Rules of Evidence?

1The Opening Brief of Appellant filed on December 21, 2018, was not filed as a
Private brief and there was not a Public brief filed with the addenda redacted.
This Amended Brief of Appellant is filed as Private and the Public brief corrects
the addenda by redacting the necessary private information.
1
 Standard of Review: “The question of whether evidence is admissible can

be either a question of discretion, which we review for abuse of discretion, or a

question of law, which we review for correctness.” State v. Martin, 2002 UT 34,

¶ 29, 44 P.3d 805. “Appellate courts review a trial court’s decision to admit

character evidence and prior bad acts under an abuse of discretion standard.”

State v. Balfour, 2018 UT App 79, ¶ 21, 418 P.3d 79 (citation and internal

quotation marks omitted). Where a trial court’s evidentiary ruling involves “the

meaning of a rule of evidence, [that] is a question of law” reviewed for

correctness. State v. Bujan, 2006 UT App 322, ¶ 14, 142 P.3d 581.

Preservation: The issue is preserved by the State’s Notice of Intent to Rely

on 404(b) Evidence, R.89–101, Addendum C; trial counsel’s Objection to the

State’s Notice, R.114–26, Addendum D; the parties’ oral argument on the matter,

R.286–313, Addendum E; and the trial court’s subsequent ruling, R.159–63,

Addendum F.

STATEMENT OF THE CASE

The State charged Richins by information with one count of lewdness, a

third-degree felony due to priors, in violation of Utah Code section

76-9-702(2)(b). R.1–2. Utah Code section 76-9-702 is attached as Addendum A.

Before trial, the prosecution filed a Notice of Intent to Rely on 404(b)

Evidence. R.89–101, Addendum C. Richins’s trial counsel opposed the motion.

R.114–126, Addendum D. After hearing argument on the matter, the court ruled

the proffered evidence admissible. R.159–63, 307, 310–11. As such, the trial court

2
was prepared to allow the prosecution to call four witnesses, R. 307, each of

whom would testify that Richins had exposed himself to them, see R.95–97.

Having lost his motion in opposition, trial counsel negotiated a stipulation of fact

with the prosecutor rather than allow the character witnesses to testify. R.308–

09.

A jury trial was held on June 20, 2018. R.185–89. The jury convicted

Richins of lewdness, R.224, and because the parties agreed to bifurcate the trial

regarding the enhancement due to priors, R.226, 229, 329, the trial court made

findings and applied the enhancement, R.503–04. The court sentenced Richins

to a suspended prison term not to exceed five years, 180 days in jail, and sixty

months of probation. R.233–34. The sentence, judgment, and commitment is

attached as Addendum B.

Richins timely appealed. R.236. This Court has jurisdiction Utah Code

section 78A-4-103(2)(e).

STATEMENT OF THE FACTS

The Trial Evidence

On the morning of May 18, 2017, Mother was driving Daughter, fifteen at

the time, to Hillcrest High for school, and, as on most days, Richins was in his

front yard. R.387–88, 408–09. As Mother backed out of her driveway and drove

passed Richins’s home, R.409, Daughter saw Richins with “down near his genital

area.” R.393. Daughter told her mom, “Oh my God, Mom, Don’t look at him.”

R.411. Daughter testified that she “could tell there was flesh there, that it was

3
flesh colored, and [Richins] was obviously holding something.” R.393. She

testified that “[i]t kind of looked like he might have been masturbating.” Id.

Daughter’s statement to police was less sure than her testimony. She

acknowledged that when she met with police she told them that it was “possible

that [she] saw [Richins’s] hands in his pockets,” and that she “didn’t exactly see

what he had in his hands.” R.402. Daughter also testified that while she recalled

telling police that Richins’s zipper was down, what, if anything, Richins had in his

hands “wasn’t 100 percent clear to [her], but it certainly looked like he was

holding something down near his pockets. So maybe his thumbs were in his

pockets[.]” R.404.

For her part, Mother testified that she was taking Daughter to school and

saw Richins standing in his yard. R.409. Mother noticed, unlike usual, that she

did not smell cigarette smoke from Richins’s smoking. Id. Mother and Daughter

got in their car “and started backing up [when] [Daughter] shouted, ‘Oh my God,

Mom, don’t look at him.’” R.411. Mother’s “natural reaction was to look,” but she

was driving and did not stop to try to get a better look. Id. When she looked,

Mother saw Richins and “he appeared to be standing with his hands just kind of

clasped down in front of him.” R.412. She did not see his zipper down. R.420.

Mother acknowledged that she told police, “Hey, look, he may have just had his

hands clasped in front of him. That’s all I saw.” R.421.

Mother and Daughter’s testimony also revealed that they had long

regarded Richins with stigma. Mother and Daughter’s family moved into their

4
home, next door to Richins, in 2008 when Daughter was seven years old. R.384–

85, 408. Daughter testified that her “parents always told [her] not to go near

[Richins] or his house because all our neighbors warned us about him.” R.386. As

it turns out, after the family moved in, “multiple neighbors” let the family know

“that [Richins] was on the sex offender registry.” R.407. So, Mother gave

Daughter a “parental warning,” telling her, “Don’t go into his yard. Don’t talk to

him. Just stay away from the neighbor.” R.408. Mother told police that she had

thought of Richins as a “creepy guy.” R.415.

Though Mother reported Richins to the police the next day, law

enforcement did not interview Richins, or Mother and Daughter until mid-to-late

August. R.430–31, 432. One of the investigating officers testified that he asked

Daughter, “Could he have had his hands in his pockets?” and that she answered,

“Yeah, that’s right, he could have just had his hands in his pockets.” R.436. The

officer also testified that Daughter had told him she “noticed [Richins’s] zippers

were down and that the flaps to the jeans were open.” R.438. Finally, the officer

testified that he used false information—that two people had positively seen

Richins expose himself—to try to get Richins to admit conduct that he had

otherwise denied and continued to deny. R.437.

The 404(b) Motion, Evidence, and Ruling

Before trial, trial counsel filed a motion for disclosure of 404(b) evidence.

R.53–55. The prosecution’s notice of intent to rely on 404(b) evidence included

descriptions of four separate incidents where Richins had exposed himself. R.89–

5
99. The incidents, described below, occurred in 2013 (one incident) and 2007

(three incidents). See R.60–86

The most recent prior incident occurred in November 2013. R.60–64.

There, the woman’s statement to police indicated that she was waiting for the bus

early one morning when she “noticed a man standing under the stairwell of an

adjacent apartment building.” R.62–63. The man, whom she did not know,

“stared at [her] for about a minute and half and then [she] witnessed him pull

down his pants exposing his genitals where he began touching himself.” R.63.

The man fled when he saw the woman take her cell phone out of her pocket. Id.

The other three incidents all occurred many years earlier, in 2007. See

R.66–86. The September 2007 incident involved a school bus of junior high

students returning from a soccer game. R.69. There, a green truck pulled

alongside the school bus and the truck’s driver, later identified as Richins, R.69–

70, was reported to have mouthed “I love you” to some of the girls in the bus.

R.69. “Upon closer observation the girls noticed that the driver of the pickup

truck had his penis out and was fondling it while he was driving next to the bus.”

Id.

The July 2007 incident involved two women horseback riding in Dimple

Dell. R.75. There, when two women got to the park and were readying for their

horseback ride, they noticed a man sitting nearby watching them. Id. The women

then rode down into the gully and saw the same man, later identified as Richins,

in front of them. Id. The women said Richins had his pants down and was

6
masturbating. Id. The women continued down the trail and apparently

encountered Richins masturbating a second time. Id.

The May 2007 incident involved a woman walking through a parking lot.

R.78. There, the woman said she had gone to Old Navy and noticed a man, later

identified as Richins, sitting in a car a few parking stalls away. R.82. The woman

said that Richins watched her walk in to the Old Navy. Id. When she returned to

her car, she said that Richins was still in the car but he had moved it to the stall

next to hers. Id. As such, she had to walk past Richins’s car to get into her car.

Richins’s windows were down, and she noticed that he was masturbating. Id.

The prosecution raised two arguments for why the court should admit the

above described character evidence under rule 404(b). R.91. First, it argued the

evidence was admissible because it had a proper non-character purpose. See

R.95, 96, 97. The prosecution explained, “It is anticipated that [Richins] will

claim that [Daughter] was mistaken in what she witnessed,” and therefore the

proffered character evidence would rebut that argument. R.95, 96, 97. Second, it

argued the evidence was admissible under the doctrine of chances. R.97.

For his part, trial counsel argued that the prosecution’s proffered evidence

was inadmissible because, despite the prosecution’s claim to the contrary, it

lacked a proper non-character purpose. R.117. Trial counsel specifically argued at

the 404(b) hearing, “[N]o matter what purpose the State suggests, no matter

what purpose that might fit with 404(b) and the language of 404(b), at the end of

the day, this is going to be character evidence. At the end of the day, this is going

7
to be he did it before . . . he did it again.” R.289–90; see also R.117 (“[T]he

Defendant believes the State’s offered evidence is aimed at establishing and

sustaining . . . an ‘improper inference,’ and is therefore inadmissible under [r]ule

404(b).”).

Trial counsel next argued that under State v. Thornton, 2017 UT 9, 391

P.3d 1016, the prosecution’s purported non-character purpose did not go to an

actually disputed issue, rendering it inadmissible. R.118. Specifically, trial counsel

explained that Richins’s asserted defense was simply that he did not expose

himself or masturbate in front of Mother or Daughter. Id. His defense was not, as

the prosecution tried to claim, to assert mistake or accident. Id. Trial counsel

argued that mistake did not apply here because a defendant asserts mistake as a

defense, when, for example, “you’re in close quarters and I turn around and my

hand brushes someone’s breast. . . . Or when [] I’m squeezing through some

closed area, I touch someone’s butt. [Then] I argue . . . that was on accident.”

R.291. Trial counsel continued, “we’re not going to argue that [Richins] exposed

himself . . . by accident.” R.292. In sum, absence of mistake under rule 404(b),

trial counsel argued, “does not refer to a defense claim that a witness or accuser

was mistaken, but to a claim that, though [d]efendant may have done what he

was accused of, he did so mistakenly or by accident.” R.118.

Trial counsel next argued why, under State v. Verde, 2012 UT 60, 296 P.3d

673, the other-bad acts evidence was not admissible under the doctrine of

chances. R.120–22. First, trial counsel argued the evidence did not satisfy the

8
doctrine of chance’s materiality prong “because it does not address a defense

raised by the Defendant.” R.121. Next, trial counsel argued the other-acts

evidence was not sufficiently similar or sufficiently frequent to satisfy the

doctrine of chance’s similarity and frequency prongs. Id. While trial counsel

conceded that the doctrine’s independence prong was satisfied, he reiterated that

each of the doctrine’s foundational requirements must be met before the other

acts evidence could be admitted under the doctrine of chances. R.122.

Finally, trial counsel argued that even if the other-acts evidence had a

proper non-character purpose, it was still not admissible under rule 403. R.123.

Specifically, trial counsel argued that the other-acts evidence was “unfairly

prejudicial” because the proffered evidence related to incidents that, most of

which, occurred almost ten years ago. Id. In addition, while two of the incidents

resulted in convictions or pleas, the other two incidents remain unproven

allegations. Id. Trial counsel argued that the admission of the other-acts evidence

would invite the jury to consider and punish Richins for his past behavior. Id.

Trial counsel concluded that the other-acts evidence’s limited probative value did

not outweigh its unfairly prejudicial effect. R.124.

The trial court agreed with the prosecution and allowed the admission of

the other-acts evidence. R.159–63, 307–09, 310–11. The trial court questioned

how Richins’s asserted defense, “I didn’t do it,” differs from the defense of “she’s

mistaken in what she saw.” R.298. As such, in its oral ruling, the court concluded

“I think there is a proper noncharacter purpose that by saying ‘I didn’t do it,’ he’s

9
claiming [Daughter is] either fabricating or mistaken and, therefore, it’s a proper

noncharacter purpose.” R.307. In the court’s oral ruling from the bench, the

court ruled that the prosecution’s 404(b) evidence was admissible on two

grounds: mistake and fabrication. R.311. Later, in its written order, the court

ruled that the evidence would be admissible under an additional ground: the

doctrine of chances. 2 R.162. As such, the evidence was admissible for the jury to

consider the “objective improbability of the same rare misfortune befalling one

individual over and over.” Id. (quoting Verde, 2012 UT 60, ¶ 47).

The court also ruled the other-acts evidence was relevant under rule 402.

R.163. The court then ruled the evidence was admissible under rule 403. R.163.

Specifically, the court ruled that while the evidence was “clearly prejudicial . . . it

would not result in ‘unfair prejudice’ that substantially outweighs its probative

value.” Id. The court reasoned that “because all of the prior victims are discussing

2 The trial court initially made an oral ruling on the prosecution’s motion to rely
on 404(b) evidence. R.310. The trial court then asked the prosecutor to make
findings and draft an order based on its ruling. Id. The prosecutor asked the trial
court to clarify the basis of its ruling, and the court articulated two bases, neither
of which were the doctrine of chances:
[The prosecution]: [I]s the Court allowing for admission under either
a point of fabrication or an absence of mistake[?]
The Court: Mistake.
[The prosecution]: So both theories or one or the other?
The Court: Both.
R.311. Although the trial court’s original ruling was not based on the doctrine of
chances, the doctrine of chances became a basis for the State-prepared and court-
signed written order.
10
lewdness allegations and not a more serious sexual offense the prejudicial effect

will be muted.” Id.

Finally, given the court’s pre-trial ruling that the prosecution’s proffered

404(b) evidence was admissible, the court read the parties’ stipulation of fact to

the jury at trial:

On four separate occasions from 2007 to 2013 four different women

indicated that Mr. Richins exposed his penis to them and touched his
penis in their presence. None of these women knew Mr. Richins or
each other or welcomed his conduct. Two of these incidents resulted
in convictions.
R.440. The court also provided the stipulation to the jury as a jury instruction.

R.215.

SUMMARY OF THE ARGUMENT

The trial court erred in allowing evidence of Richins’ other bad acts under

Utah Rule of Evidence 404(b). Rule 404(b) prohibits the use of other-acts

evidence to prove a person’s character and to show that “on a particular occasion

the person acted in conformity with that character.” However, the rule also

provides that the evidence may be admitted for another non-character purpose.

But here, the trial court erred because the prosecution’s proffered character

evidence did not have a proper non-character purpose. Though the prosecution

asserted that the evidence had avowed non-character purposes, the trial court

abused its discretion in not rejecting the prosecution’s avowed purposes as

pretexts or ruses. Further, the trial court erred in allowing the character evidence

under each of its stated alternative grounds.

11
 First, the trial court erred in allowing the other-acts evidence under the

absence of mistake exception to rule 404(b). The trial court ruled that the

evidence could be admitted under the absence of mistake exception to rebut a

claim that Daughter was mistaken in what she witnessed. This constitutes error

because the absence of mistake exception refers to the defendant’s mistake, not

that of a witness or accuser. In cases where a defendant’s asserted defense is

simply, “I didn’t do it,” allowing evidence of the defendant’s character to bolster

the witness who says, “I saw him do it,” would create an exception that would

swallow the rule.

Second, the trial court erred in allowing the prosecution’s proffered other-

acts evidence to rebut a claim of fabrication. While rebutting a claim of

fabrication may constitute a proper purpose under rule 404(b), the prosecution

may only offer character evidence to address an issue actually disputed. In

addition, the prosecution “may not by prompting and maneuvering set up a

defensive theory which it may then rebut through the use of [other-acts]

evidence.” Here, trial counsel never asserted fabrication as a defense and in fact

specifically argued, “I don’t think [Daughter] is lying, you know, that she’s

intentionally making a statement that’s not true. I don’t think that.” As such,

because the issue of whether Daughter fabricated her claim against Richins was

not actually disputed, the trial court erred in allowing evidence of Richins’s other

bad acts.

12
 Third, the trial court erred in allowing the other-acts evidence under the

doctrine of chances. The doctrine of chances “is a theory of logical relevance that

rests on the objective improbability of the same rare misfortune befalling one

individual over and over,” and has become an alternative means of introducing

otherwise inadmissible character evidence. However, “[b]efore admitting

evidence of the accused’s uncharged crimes to establish actus under the doctrine

of chances, the trial judge must ensure that the prosecutor has strictly satisfied

[each of the doctrine’s] foundational requirements.” The doctrine’s four

foundational requirements are (1) materiality, (2) similarity, (3) independence,

and (4) frequency. The evidence at issue here failed to satisfy three of the

doctrine’s four foundational requirements: materiality, similarity, and frequency.

As such, the trial court erred in admitting other-acts evidence under the doctrine

of chances.

Next, the trial court erred in ruling that the character evidence here was

admissible under rule 403. Evidence admissible under rule 404(b) may still only

be admitted “so long as it satisfies rules 402 and 403.” Under rule 403, relevant

evidence may be excluded if its probative value is substantially outweighed by a

danger of, among other things, unfair prejudice. The character evidence here had

little to no probative value because it tended to sustain an improper propensity

inference. In addition, the evidence was unfairly prejudicial because “it create[d]

an undue tendency to suggest [a] decision on an improper basis.” Accordingly,

13
the evidence’s scant probative value was substantially outweighed by the danger

of unfair prejudice it created. The trial court erred in ruling otherwise.

Finally, the trial court’s error caused prejudice. The verdict in this case

hinged on essentially two different pieces of evidence: (1) Daughter’s testimony

and (2) Richins’s other bad acts. Daughter’s testimony on its own failed to

overcome reasonable doubt. Daughter’s and an officer’s testimony showed that

Daughter told police that it was possible Richins hands were in his pockets, that

she “didn’t exactly see what he had in his hands,” and that “maybe his thumbs

were in his pockets.” Accordingly, without the improperly admitted character

evidence that four other women had seen Richins expose himself, a reasonable

likelihood of a more favorable outcome exists.

Accordingly, for the reasons summarized above and argued in detail below,

the trial court abused its discretion when it admitted evidence of Richins’s other

bad acts, and the trial court’s error caused prejudice. Therefore, we ask that this

Court reverse and remand.

ARGUMENT

I. The trial court erred in ruling evidence of Richins’s other bad acts
was admissible under rule 404(b) and the error caused prejudice.
“Evidence 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). However, prohibited

character evidence “may be admissible for another purpose, such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

14
mistake, or lack of accident.” Id. 404(b)(2). Accordingly, rule 404(b) recognizes

two competing inferences inherent to character evidence. State v. Thornton, 2017

UT 9, ¶¶ 35–36, 391 P.3d 1016.

First, rule 404(b) recognizes “the dangers of exposing a jury to evidence of

a defendant’s acts of prior misconduct—specifically, the risk that the jury will

infer that the defendant has a reprehensible character, that he probably acted in

conformity with it, and that he should be punished for his immoral character in

any event. The rule deems that inference impermissible.” Id. ¶ 35. (citation and

internal quotation marks omitted). Second, “the rule also recognizes that acts of

prior misconduct may also sustain an alternative—and entirely permissible—

inference.” Id. ¶ 36. “When past misconduct evidence is offered for any other

purpose—other than to suggest action in conformity with the bad character

suggested by [a defendant’s] prior bad acts—such evidence is admissible,” subject

to rules 402 and 403. Id. (citation and internal quotation marks omitted).

In deciding whether to admit other-acts evidence, “the careful trial judge

will still proceed as outlined” in State v. Lucero, 2014 UT 15, 328 P.3d 841, and

“march[] through the standards set forth in rules 404(b), 402, and 403.”

Thornton, 2017 UT 9, ¶ 54; see also State v. Gasper, 2018 UT App 164, ¶ 18, 872

Utah Adv. Rep. 33. Under Lucero, “to be admissible, evidence of prior bad acts

must be relevant and offered for a genuine, non-character purpose; furthermore,

the probative value of the evidence must not be substantially outweighed by the

danger of unfair prejudice.” Lucero, 2014 UT 15, ¶ 13 (paraphrasing State v.

15
Decorso, 1999 UT 57, ¶¶ 20–24, 993 P.2d 837), abrogated on other grounds by

Thornton, 2017 UT 9. 3

Here, and for the reasons explained below, the trial court abused its

discretion in admitting evidence of Richins’s other bad acts because, to begin, the

evidence did not have a proper non-character purpose. First, in arguing for its

admissibility, the prosecution acknowledged that the purpose of its proffered

evidence was to prove Richins’s propensity to expose himself. Second, the

evidence did not have a proper non-character purpose because evidence of a

defendant’s character cannot be used to rebut someone else’s mistake. Third, the

evidence did not have a proper purpose because the issue of whether Daughter

fabricated her claim against Richins was not actually disputed. Fourth, the

evidence did not have a proper purpose under the doctrine of chances because

not all of the doctrine’s foundational requirements were met. Fifth, the trial court

abused its discretion in ruling the prosecution’s proffered evidence admissible

under rule 403. Contrary to the court’s ruling, the evidence’s probative value was

substantially outweighed by the danger of unfair prejudice. Finally, the trial

court’s error caused prejudice.

3Thornton repudiated the requirement—recognized in Lucero, State v. Verde,

2012 UT 60, 296 P.3d 673, and State v. Decorso, 1999 UT 57, 993 P.2d 837—that
a trial judge conduct a “scrupulous examination” of other-acts evidence before
admitting it under rule 404(b). See Thornton, 2017 UT 9, ¶ 46. Accordingly, an
appellate court may not hold that the trial court committed legal error in
admitting evidence under 404(b) on the basis that it failed to conduct a
scrupulous examination of the proffered evidence. Id.
16
 A. The trial court abused its discretion in allowing the prosecution’s
proffered character evidence because the evidence was really aimed at
establishing an impermissible propensity inference.
Before a trial court may admit other-acts evidence under rule 404(b), “the

proponent must demonstrate that the evidence is actually being offered for a

proper, noncharacter purpose, such as those specifically listed in the rule.” State

v. Decorso, 1999 UT 57, ¶ 21, 993 P.2d 837, abrogated on other grounds by State

v. Thornton, 2017 UT 9, 391 P.3d 1016; see supra n.1. “If [other-acts evidence] is

really aimed at establishing a defendant’s propensity to commit crime, it should

be excluded despite a proffered (but unpersuasive) legitimate purpose.” State v.

Verde, 2012 UT 60, ¶ 17, 296 P.3d 673 (internal quotation marks omitted) (citing

Decorso, 1999 UT 57, ¶¶ 21–25) abrogated on other grounds by Thornton, 2017

UT 9; see supra n.1. Additionally, a trial court may appropriately reject the

prosecution’s “avowed proper purpose” as “a pretext or ruse,” “where the proper

purpose put forward by the prosecution is addressed to an issue that is not

actually disputed, and where the court concludes that the only real effect of the

evidence is to suggest likely action in conformity with bad character.” Thornton,

2017 UT 9, ¶ 59 (citing Verde, 2012 UT 60, ¶ 22).

Here, despite the prosecution’s claim that its proffered character evidence

had a proper non-character purpose, “the only real effect of the evidence [was] to

suggest likely action in conformity with bad character.” Id. Indeed, while arguing

for admission of Richins’s other bad acts, the prosecution twice acknowledged,

perhaps inadvertently, that the evidence’s real purpose was to show Richins’s

17
propensity to expose himself. See R.302, 303. The prosecution first

acknowledged that its proffered evidence was little more than propensity

evidence while discussing the evidence’s materiality:

The trial will be about whether or not Mr. Richins exposed himself to
[Daughter]. There can’t be a more material issue as to whether or not
he did so than the fact that he has done so in the past and that
therefore [Daughter] is not mistaken [and] her report is not a
fabrication.
R.302 (emphasis added). The prosecution next acknowledged its proffered

evidence’s purpose was to show propensity while arguing the evidence’s

similarity:

Whether [the other bad act] happened on a public street or whether it

happened in his vehicle or whether it happened at a park, those are
all further evidence of the fact that Mr. Richins does this all the time,
meaning this is something that he has done. This is something that
when [Daughter] gets up and says this is what I saw, and then she’s
attacked to say, now you just really thought he was a sex offender and
it was planted in your head, then that mistake she made is now being
supported by the fact that . . . she’s not the only person that’s seen it.
R.303 (emphasis added). The prosecution’s arguments show that the prosecution

had no persuasive proper purpose for admitting the evidence. The prosecution

acknowledged that its proffered evidence was to show that “Mr. Richins does this

all the time,” id., and any doubt about what Daughter may have seen can be

resolved by the fact that “he’s done so in the past,” R.302. The prosecution’s

arguments reveal that the purpose of its proffered evidence was to establish, as

trial counsel argued, “He did it before, he did it again.” R.290.

Rule 404(b) prohibits the use of character evidence in the manner

proffered by the prosecution in this case. Utah R. Evid. 404(b)(1). Here, the

18
prosecution’s proffered evidence was “really aimed at establishing [Richins’s]

propensity to commit crime.” Verde, 2012 UT 60, ¶ 17. Accordingly, the trial

court abused its discretion in allowing admission of State’s bad-acts evidence

when “it should [have been] excluded despite a proffered (but unpersuasive)

legitimate purpose.” Id. Further, and for the reasons explained below, see infra

Part I.F., the trial court’s error caused prejudice. As such, this Court may reverse

and remand on the basis of this error, and its resulting prejudice, alone.

However, even if this Court concludes that the prosecution’s proffered

evidence was not in fact mere propensity evidence but perhaps had a persuasive

proper purpose, for the reasons explained below, the trial court still erred in

ruling the evidence was admissible.

B. The trial court erred when it concluded that the prosecution’s proffered
character evidence was admissible to show absence of Daughter’s
mistake.
Under rule 404(b), other-acts evidence may be admissible to prove,

“motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.” Utah R. Evid. 404(b)(2). “The ‘absence of mistake’

exception requires the defendant to have asserted he acted by mistake . . . and

‘the other acts’ show that he acted purposely to commit the present offense . . . .”

State v. Page, 2018-Ohio-2866 at ¶ 24, --- N.E. 3d ---, 2018 WL 3493141

(emphasis added). In other words, other-acts evidence may be admitted to show

absence of mistake on the part of the defendant. See id. Generally, the exception

does not apply to show absence of mistake on the part of the accuser. Id. (“The

19
‘mistake or accident’ involved is not that the police wrongly accused the

defendant.”). Accordingly, the trial court erred when it ruled the prosecution’s

proffered character evidence could be admitted to prove absence of Daughter’s

mistake.

Though no Utah case explicitly states whose mistake rule 404(b)’s absence

of mistake exception applies to, in cases where other-acts evidence was admitted

under the exception, it was admitted to show absence of mistake on the

defendant’s part, not the witness’s. 4 See, e.g., State v. Graham, 2013 UT App 72,

¶ 20, 299 P.3d 644 (“Defendant consistently claimed . . . that he mistakenly

believed that he was free to release himself from jail.”); State v. Northcutt, 2008

UT App 357, ¶ 7, 195 P.3d 499 (Defendant claimed he covered his wife’s mouth to

keep her from screaming and it was by mistake that he nearly suffocated her);

State v. Teuscher, 883 P.2d 922, 926 (Utah Ct. App. 1992) (Defendant argued

that the victim’s injuries “might have been caused when she accidentally dropped

him in a playpen”) abrogated on other grounds by State v. Levin, 2006 UT 50,

¶ 45, 144 P.3d 1096.

In fact, the proper noncharacter purposes listed in rule 404(b), while not

exhaustive, State v. Housekeeper, 2002 UT 118, ¶ 28, 62 P.3d 444, generally

4Notably, while the prosecution argued below that trial counsel’s argument that
the absence-of-mistake exception applies to the defendant’s asserted mistake and
not a witness’s mistake was “novel,” R.300, and “created out of whole cloth,” R.
299, we maintain that the prosecution’s argument to the contrary is novel. We are
unaware of any case under Utah law that supports the State’s contention that rule
404(b)’s absence of mistake exception applies to an accuser’s mistake.
20
apply to the actus reus or mens rea of the individual against whom the evidence

is to be used. For example, while the rule does not specify whose “motive,” whose

“opportunity,” whose “intent,” whose “knowledge,” whose “plan,” or etc., 404(b)

evidence may be admitted to prove, in the context of a criminal prosecution, it is

generally the defendant’s motive, the defendant’s opportunity, the defendant’s

intent, and the defendant’s plan that the prosecution seeks to prove via the

defendant’s other-acts. See, e.g., State v. Holbert, 2002 UT App 426, ¶¶ 34–35,

61 P.3d 291 (other-acts evidence admissible to prove defendant’s motive and

defendant’s intent); State v. McDonald, 2005 UT App 86, ¶ 12, 110 P.3d 149

(testimony regarding other acts was allowed to establish defendant’s knowledge);

but see State v. Beverly, 2018 UT 60, ¶ 67 (affirming admission of 404(b)

evidence to show victim’s state of mind and why she did not physically resist

sexual intercourse). As such, where courts have generally construed 404(b)’s

other exceptions (e.g., motive, opportunity, intent, preparation, plan, knowledge,

and identity) to apply to the actus reus or mens rea of the defendant, it makes

sense to similarly construe the absence-of-mistake exception to apply to the

defendant’s own asserted mistake. Cf. State v. Bagnes, 2014 UT 4, ¶ 19, 322 P.3d

719 (“Under the ejusdem generis canon, catchall elements of [a] statutory list[]

may be understood as restricted to include things of the same kind, class,

character, or nature as those specifically enumerated . . . .” (citation and internal

quotation marks omitted)).

21
 Construing the absence-of-mistake exception to apply to the defendant’s

mistake (or other individual against whom the proffered evidence is to be used)

also makes policy sense. It is difficult to conceive of many circumstances where

evidence of the defendant’s bad character would be relevant to prove a fact or

circumstance related to someone else outside of the “consent” context in some

rape or sexual assault cases. See Beverly, 2018 UT 60, ¶ 67. The difficulty with

allowing evidence about defendant’s character to prove something about

someone else, outside of consent cases, is avoiding the improper and

impermissible inference that the defendant probably acted in conformity with his

bad character. See State v. Thornton, 2017 UT 9, ¶ 35, 391 P.3d 1016. If a

defendant maintains he did not commit the act with which he is charged,

arguably any witness’s testimony to the contrary must be mistaken. The witness’s

contrary testimony would then open the door for the prosecution to introduce

propensity evidence under the guise of a proper purpose. Accordingly, in cases

where the defendant’s defense is simply, “I didn’t do it,” construing rule 404(b)’s

absence-of-mistake exception to mean that the prosecution can introduce

evidence of the defendant’s bad character to rebut a witness’s testimony that “he

did do it,” would create an exception that swallows the rule.

The policy militating against construing rule 404(b)’s absence-of-mistake

exception in this way is similar to the policy that caused the Utah Supreme Court

to reject the “not-guilty rule” as a technical means of introducing prior-acts

evidence. See State v. Verde, 2012 UT 60, ¶¶ 22–23, 296 P.3d 673. Under the

22
not-guilty rule, a not-guilty plea “necessarily puts the question of intent at issue,

opening the door to evidence of other offenses to establish the element of intent

even if the defendant has not contested his or her mental state.” Id. ¶ 21 (internal

quotation marks omitted). The supreme court rejected the not-guilty rule because

“a not-guilty plea technically puts every element of a crime at issue. But the

technical relevance of evidence of a defendant’s intent is not enough to justify the

admissibility of evidence of prior bad acts purportedly aimed at establishing

intent under rule 404(b).” Id. ¶ 22 (footnote omitted). The fact is, “the

admissibility of prior misconduct evidence cannot be sustained under rule 404(b)

on the mere basis of a defendant’s not guilty plea.” Id. ¶ 23. The same logic

applies here. The fact that a defendant maintains he did not engage in the

charged conduct is itself “not enough to justify the admissibility of prior bad acts

purportedly aimed at establishing” the opposing witness’s testimony is not

mistaken. See id ¶ 22.

The fact that Richins’s asserted defense was that he did not do what he was

accused of does not justify the admission of other-bad-acts evidence to rebut

Daughter’s mistaken claims. See Verde, 2012 UT 60, ¶ 23. Accordingly, the trial

court erred when it ruled that the prosecution could admit other-acts evidence to

“rebut the claim that [Daughter] was mistaken in what she observed.” R.161.

23
 C. The trial court erred when it concluded the prosecution’s proffered
character evidence was admissible to show Daughter did not fabricate
her claim against Richins.
While “[r]ebutting a fabrication defense does not appear in the list of

permissible noncharacter purposes set out in rule 404(b) . . . that list is not

exhaustive.” State v. Balfour, 2018 UT App 79, ¶ 31, 418 P.3d 79 (citation and

internal quotation marks omitted). Indeed, “our Supreme Court has expressly

stated that under certain circumstances, ‘prior bad acts can properly be used to

rebut a charge of fabrication.’” Id. (quoting State v. Verde, 2012 UT 60, ¶ 47, 296

P.3d 673). However, “where the proper purpose put forward by the prosecution is

addressed to an issue that is not actually disputed, and where the court concludes

that the only real effect of the evidence is to suggest likely action in conformity

with bad character,” the trial court may reject “an avowed proper purpose . . . as a

pretext or ‘ruse.’” Thornton, 2017 UT 9, ¶ 59 (citing Verde, 2012 UT 60, ¶ 22).

Finally, where an issue is not actually disputed, the prosecution cannot claim the

defendant is asserting a defense that he has not actually asserted as an end-run

around rule 404(b). See DeLeon v. State, 77 S.W.3d 300, 314 (Tx. Ct. App. 2001).

In DeLeon v. State, 77 S.W.3d 300 (Tex. Ct. App. 2001), the prosecution

moved to admit other-acts evidence under rule 404 (b) of the Texas Rules of

Evidence. 5 Id. at 311. Among other reasons, the prosecutor argued that the other-

5Rule 404(b) of the Texas Rules of Evidence is nearly identical to rule 404 (b)
under the Utah Rules of Evidence. Compare Tex. R. Evid. 404(b) with Utah R.
Evid. 404(b) (both rules provide that other-acts “evidence may be admissible for
another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident”).
24
acts evidence was admissible “to rebut the defensive theory of fabrication.” Id.

The prosecutor argued that the defendant had opened the door to rebut a claim of

fabrication because the defendant had argued in opening “that the evidence

‘would show’ that when the complainant had arguments with her mother, got

‘mad’ and left home, it was then that she claimed ‘these things took place.’” Id.

While defense counsel did elicit through cross-examination the same evidence it

described in opening, the Texas Court of Appeals (now the Court of Criminal

Appeals) concluded that the prosecution had failed to tie the other-acts evidence

to the evidence defense counsel elicited. Id. at 314. The court went on to explain

“[t]he State may not by ‘prompting or maneuvering’ set up a defensive theory

which it may then rebut through the use of [other-acts] evidence.” Id. Because the

“alleged defensive theory of fabrication . . . had not been raised[,]” the court held

that “[t]he trial court erred in admitting the [other-acts] evidence on this basis.”

Id.

Here, Richins never asserted as part of his defense that Daughter had

fabricated or intentionally lied about the claim she raised against him. See R.492.

In fact, trial counsel specifically argued, “I don’t think [Daughter] is lying, you

know, that she’s intentionally making a statement that’s not true. I don’t think

that.” Id. Throughout the trial, trial counsel’s primary strategy was to show that

Daughter herself had doubts about what she may have seen—a strategy different

from asserting Daughter had fabricated anything. For example, on cross-

examination, Daughter acknowledged that she initially reported to police that

25
what she saw Richins doing “wasn’t 100 percent clear to [her], but it certainly

looked like [Richins] was holding something down near his pockets.” R.404.

Daughter even went so far as to admit to the officer and at trial that “maybe

[Richins’s] thumbs were in his pockets[.]” R.404. Trial counsel simply never

accused Daughter of fabricating her claim against Richins.

Accordingly, the trial court erred in allowing the prosecution’s other-acts

evidence to rebut a claim that the defense never raised and never actually

disputed. See Thornton, 2017 UT 9, ¶ 59; see also DeLeon, 77 S.W.3d at 314.

D. The trial court erred when it concluded the prosecution’s proffered

character evidence was admissible under the doctrine of chances.
The doctrine of chances “is a theory of logical relevance that rests on the

objective improbability of the same rare misfortune befalling one individual over

and over.” State v. Verde, 2012 UT 60, ¶ 47, 296 P.3d 673 (footnote and internal

quotation marks omitted). “In theory, there is a distinction between character

reasoning and the use of the doctrine of chances to establish the actus reus.”

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 Evidence Prohibition, 51 OHIO ST. L.J. 575, 588 (1990). Given the

theoretical distinction between permissible probability evidence and

impermissible propensity evidence, the doctrine of chances has become a means

of admitting other-acts evidence under rule 404(b). See id.; see also Verde, 2012

UT 60, ¶ 50 (“Propensity inferences do not pollute this type of probability

reasoning.”). However, “the lax application of the doctrine of chances can

26
eviscerate the character evidence prohibition.” Imwinkelried, supra, at 588. As

such, only when the doctrine’s foundational requirements are all met, may other-

acts evidence be admitted under the doctrine to show a “proper, non-character

statistical inference.” State v. Lowther, 2017 UT 34, ¶ 21, 398 P.3d 1032; see also,

Verde, 2012 UT 60, ¶ 57 (“Under the doctrine of chances, evidence offered to

prove actus reus must not be admitted absent satisfaction of four foundational

requirements.”); Imwinkelried, supra, at 588 (“Before admitting evidence of the

accused’s uncharged crimes to establish the actus under the doctrine of chances,

the trial judge must ensure that the prosecutor has strictly satisfied [the

doctrine’s] foundational requirements.”). Here, because the prosecution did not

strictly satisfy all of the doctrine’s foundational requirements, the trial court

erred in allowing other-acts evidence under the doctrine of chances.

The doctrine of chances’ four foundational requirements are: (1)

materiality; (2) similarity; (3) independence; and (4) frequency. Verde, 2012 UT

60, ¶¶ 57, 58, 60, 61. For the reasons explained below, the trial court erred in

allowing the prosecution’s proffered other-acts evidence because the prosecution

failed to satisfy the materiality, similarity, and frequency requirements of the

doctrine of chances. 6

6 Trial counsel conceded below, and we agree, that the independence requirement
is satisfied here.
27
 1. The trial court erred in finding the doctrine of chances’ materiality
requirement satisfied.
“[U]nder materiality, the issue for which the uncharged misconduct

evidence is offered must be in bona fide dispute. The aim of this foundational

requirement is to ensure a careful evaluation of the true—and predominant—

purpose of any evidence proffered under rule 404(b).” State v. Lowther, 2017 UT

34, ¶ 35, 398 P.3d 1032 (citation and internal quotation marks omitted). Here, no

proper purpose under rule 404(b) existed to justify the use of the prosecution’s

proffered evidence.

First, as analyzed in detail above, the true and predominant purpose of the

prosecution’s proffered character evidence was to prove Richins’s propensity to

expose himself. See supra, Part I.A. In arguing its proffered evidence was

material, the prosecution revealed the evidence’s true propensity purpose by

stating, “The trial will be about whether or not Mr. Richins exposed himself to

[Daughter]. There can’t be a more material issue as to whether or not he did so

than the fact that he has done so in the past . . . .” R. 302 (emphasis added).

Second, the prosecution’s asserted other proper purpose, that the proffered

character evidence was admissible to prove absence of Daughter’s mistake is not

a proper purpose under rule 404(b). As discussed in detail above, the absence of

mistake exception under rule 404(b) applies to rebut the absence of defendant’s

mistake, not absence of mistake on the part of a witness. See State v. Page, 2018-

Ohio-2866 at ¶ 24, --- N.E. 3d ---; see also supra, Part I.B.

28
 Third and finally, the prosecution’s other proffered proper purpose, that

the proffered character evidence was admissible to rebut the claim of fabrication,

was not valid because Richins never asserted fabrication as a defense. Because

the issue of fabrication was not actually disputed, it does not constitute a proper

purpose under rule 404(b). See State v. Thornton, 2017 UT 9, ¶ 59, 391 P.3d 1016

(explaining that “where the proper purpose put forward by the prosecution is

addressed to an issue that is not actually disputed,” the trial court may reject the

prosecution’s avowed proper purpose); DeLeon v. State, 77 S.W.3d 300, 314 (Tx.

Ct. App. 2001) (explaining “the State may not by prompting and maneuvering set

up a defensive theory which it may then rebut through the use of [other-acts]

evidence” (citation and internal quotation marks omitted)); see also supra, Part

I.C.

For the reasons argued in detail previously, see supra, Parts I.A.–C., the

trial court erred in finding the doctrine of chances’ materiality prong was

satisfied. Accordingly, the trial court abused its discretion in admitting the

prosecution’s proffered character evidence under the doctrine of chances because

not all of the doctrine’s foundational requirements were satisfied. See Verde,

2012 UT 60, ¶ 57 (requiring all of the doctrine’s foundational requirements be

met before character evidence may be admitted).

29
 2. The trial court erred in finding the doctrine of chances’ similarity
prong was satisfied.

To satisfy the doctrine of chances’ similarity requirement, “‘[e]ach

uncharged incident must be roughly similar to the charged crime.’” Id. ¶ 58

(italicization and footnote omitted) (quoting Imwinkelried, supra, at 595). Given

that “[a]ny prescription of a threshold of similarity in admitting similar

accusations is inevitably imprecise,” the prosecution needed to at least show that

the incidents were sufficiently similar “to dispel any realistic possibility of

independent invention,” and that the incidents “fall into the same general

category.” Id. ¶ 59 (citation-footnotes and internal quotation marks omitted).

Here, the prosecution failed to make the requisite showing because while each of

the other incidents involved Richins exposing himself and, in that regard “fell

into the same general category,” Verde, 2012 UT 60, ¶ 59, the incidents happened

in contexts so different from the case at bar that the trial court erred in ruling the

similarity prong was satisfied. See State. Lopez, 2018 UT 5, ¶ 58, 417 P.3d 116

(explaining that defendant’s prior acts were dissimilar because they occurred in

different contexts and that the trial court did not abuse its discretion in

suppressing them).

Here, the trial court decided that the incidents of Richins’s past misconduct

were similar because “they all involve the same exact conduct, that of [Richins]

exposing himself to women in public.” R.162. The trial court’s single-sentence

ruling in this regard can hardly be held to comply with the requirement that the

30
doctrine of chances’ foundational requirements be “strictly satisfied.”

Imwinkelried, supra, at 588. Indeed, the prosecution’s failure to meaningfully

engage with the incidents’ significant dissimilarities rendered the trial court’s

ruling an impermissible “work-around for the admission of otherwise improper

propensity evidence.” Lopez, 2018 UT 5, ¶ 57. While the prior incidents fall into

the “same general category,” Verde, 2012 UT 60, ¶ 59, like the incidents

described in State v. Lopez, 2018 UT 5, 417 P.3d 116, the incidents’ context

render them dissimilar from the incident at issue here.

In Lopez, the proffered 404(b) incidents fell in the same general category

in that they all involved “Lopez drawing a firearm in the presence of family

members,” but because the incidents “happened in very different contexts[,]”

they “did not share a great deal of similarity.” 2018 UT 5, ¶ 58. Here, each of the

prior incidents involved Richins exposing himself to strangers. In fact, the

parties’ stipulation of fact provided, in part, “None of these women knew Mr.

Richins, or each other . . . .” R.215. While the prior incidents are similar to each

other in that they all involved strangers, they are dissimilar from the case here

because, though Richins and Daughter never spoke, they had been neighbors for

years, and they knew each other. See R.384–85, 408. Exposing oneself to

strangers is different from exposing oneself to someone they know, like a

neighbor, because the risk of getting away with the lewd conduct is presumably

different depending on whether the victim knows or personally recognizes the

perpetrator.

31
 Further, the “similarities between the charged and uncharged incidents

must be sufficient to dispel any realistic possibility of independent invention.”

Verde, 2012 UT 60, ¶ 59. The fact that the incident with Daughter involved a non-

stranger, when compared to the other incidents which all involved strangers,

does not dispel the “realistic possibility of independent invention” on Daughter’s

part. See id. This is not to say that Daughter made the incident up but to highlight

the very important fact that Daughter knew something about Richins that none of

the other victims did: he was a registered sex offender that lived next door.

R.407. Daughter’s knowledge that Richins was a registered sex offender changes

the context of what she witnessed when compared to what the other witnesses

saw.

Relatedly, another factor making the four prior incidents similar to each

other but dissimilar from the incident at issue here is the doubt related to what

Daughter may have seen. The witness reports to police in the other four incidents

show no equivocation about what the witnesses in those cases saw. See R.62–63

(the November 2013 incident); 69–70 (the September 2007 incident); 75–76 (the

July 2007 incident); and 82–84 (the May 2007 incident). The police report

related to the incident at issue here, the contents of which were elicited through

direct- and cross-examination, show equivocation about what both Daughter and

Mother may have seen. For example, Daughter told police that it was “possible

that [she] saw [Richins’s] hands in his pockets,” and that she “didn’t exactly see

what he had in his hands.” R.402. Daughter also testified that while she recalled

32
telling police that Richins’s zipper was down, she also testified that what, if

anything, Richins had in his hands “wasn’t 100 percent clear to [her], but it

certainly looked like he was holding something down near his pockets. So maybe

his thumbs were in his pockets[.]” R.404. One of the officers who took a report

from Daughter also acknowledged that when he asked, “Could [Richins] have had

his hands in his pockets,” she told him, “Yeah, that’s right he could have just had

his hands in his pockets.” R. 436. Finally, Mother testified that she told police,

“Hey, look, he may have just had his hands clasped in front of him. That’s all I

saw.” R.421. Accordingly, unlike the witnesses in the four prior incidents who

were unequivocal in what they saw and for whom Richins was a stranger,

Daughter was equivocal in what she may have seen and Richins was not a

stranger.

The dissimilarities described above are significant because not only does

Daughter express doubt about what she may have seen (unlike the other

witnesses), she knew Richins was a registered sex offender (unlike the other

witnesses), and therefore may have, consciously or unconsciously, used that

information to shift her doubts toward something sexual, toward something

nefarious. As such, the contexts of the four prior incidents compared to the

incident at issue are very different and do little to “dispel any realistic possibility

of independent invention” on Daughter’s part. Verde, 2012 UT 60, ¶ 59.

Additionally, “[t]he courts are less tolerant of dissimilarities between the

victims of the charged and uncharged incidents.” Imwinkelried, supra, at 596.

33
While Imwinkelried explains the courts’ general intolerance for dissimilarities

between victims in the context of using other-acts evidence to establish mens

rea—because the defendant may have different intents with respect to different

victims, id.—the present case represents a good reason for courts to be less

tolerant of dissimilarities between victims when the doctrine of chances is used to

prove actus reus. As explained above, in a lewdness case such as this, it seems

that someone wishing to engage in an act of lewdness would be more likely to

expose himself to a stranger than someone he knows so as to potentially

minimize the act’s associated risk. Also, and perhaps more significantly, when a

victim has doubts or expresses uncertainty about what she may have witnessed,

her having personal knowledge about the defendant, where other witnesses did

not, may create a bias toward the defendant that the other witnesses do not have.

In this case, the differences between the victims in the four prior incidents

when compared to Daughter, render the inference drawn from the prior acts

more likely to be an improper propensity inference than a proper probability

inference. This, rule 404(b) does not allow. See Thornton, 2017 UT 9, ¶ 35.

For the reasons described above, the trial court erred in concluding the

incidents at issue “all involved the exact same conduct.” R.162. Further, because

the above described other-acts evidence does not satisfy the doctrine of chances’

similarity requirement, the trial court abused its discretion in ruling the evidence

admissible under the doctrine of chances. See Verde, 2012 UT 60, ¶ 57.

34
 3. The trial court also erred in holding the doctrine of chances’
frequency prong was satisfied.
For the prosecution to satisfy the frequency requirement, “the defendant

must have been accused of the crime or suffered an unusual loss ‘more frequently

than the typical person endures such losses accidentally.’” Id. ¶ 61 (italicization

omitted) (quoting Imwinkelried, supra, 590). In analyzing the frequency of a

given occurrence, “[t]he key is the relative frequency rather than brute number of

incidents.” Imwinkelried, supra, 591. “The most meaningful question is whether

cumulatively, the losses suffered by the accused . . . exceed the frequency rate for

the general population. The total number of losses must reach an improbability

threshold, and the number reaches that threshold only when the frequency with

which the accused suffers the losses is greater than the general frequency with

which such losses occur.” Id. at 590.

To establish frequency data by which a court can compare the defendant’s

loss with that of the general population, prosecutors may rely on “pre-existing

data compilations,” look to empirical data gathered by government agencies or

private research organizations, or retain an expert who has statistical knowledge

and/or data related to the frequency of the relevant incident. Id. at 591. “Failing

all other methods, the prosecutor can ask the judge to rely on her conception of

common, human experience to resolve the question whether the accused suffered

the loss more frequently than the typical person could expect to sustain the loss.”

Id. Here, the prosecution skipped past the opportunity to present the trial court

with real data related to the frequency rate by which men in the relevant

35
population may be accused of exposing themselves. Rather, the prosecution

immediately asked the judge to, essentially, rely on “her common conception” to

make a decision regarding frequency. See id. The trial court’s reliance on

common conception without first determining whether relevant empirical data

existed to determine frequency constitutes error for the reasons explained below.

Here, the prosecution probably had the ability to gather data to determine

with what frequency men, in Salt Lake County, were accused of exposing

themselves to women. After all, the prosecutor’s office screens lewdness cases,

decides which of those cases to prosecute, and probably has data on the success

rates of those prosecutions. It is important for prosecutors and courts to rely on

empirical data when assessing frequency under the doctrine of chances before

resorting to the judge’s “conception of common, human experience.” Id. at 591.

Empirical data, when it is available, takes precedence over common conception

because“[w]here [it] is missing [and] a trial judge . . . approach[es] the issue of

‘unusual loss’ based upon his or her own personal life experience, [that

experience] possibly does not coincide with the day-to-day realities faced by

criminal defendants.” Andrea J. Garland, Beyond Probability: The Utah

Supreme Court’s “Doctrine of Chances” in State v. Verde Encourages Admission

of Irrelevant Evidence, 3 Utah J. Crim. Law 6, 16 (2018). 7

7 Andrea Garland is an attorney in LDA’s appellate division.

36
 In addition, the frequency requirement asks courts to consider

probabilities based on the typical person. Imwinkelried, supra, at 591. However,

as Garland points out, “comparing a defendant in a criminal trial to a ‘typical

person’ may not eliminate random chance as the reason for repeated unlikely

events.” Garland, supra, at 19. The problem with comparing a defendant to the

typical person, especially in the absence of empirical data, is that “Utah courts do

not encounter ‘typical people’ as criminal defendants.” Id. at 20. For example,

data from 2014 shows that “getting arrested for any crime” in Salt Lake County

was itself an unlikely event with 45.4 arrests per 1,000 people (or 4.54% of

people). Id. Therefore, if we equate an arrest with an accusation, someone on

their “first arrest has already been accused more frequently than the typical

person.” Id. Accordingly, where the doctrine of chances is supposed to ferret out

whether a defendant has been accused of a crime more frequently than a typical

person, it fails in revealing anything very meaningful “because the answer will

always be yes.” See id.

As the supreme court explained in Lopez, “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.” 2018 UT 5, ¶ 57. The statistical analysis comparing criminal

defendants to typical people, discussed above, shows the critical importance of

controlling for different populations, and it reinforces the importance that prior

incidents be sufficiently similar. “Similarity assumes importance in this inquiry

37
because a district court could logically conclude that the more similarities a

repeated event share, the less likely they are to occur frequently by accident.” Id.

Here, controlling for different populations is important given the

dissimilarities discussed above. To determine frequency here, the question

should not be whether Richins has been accused of lewdness more than the

typical person, it should be whether he has been accused more than the typical

registered sex offender because Daughter, unlike his past accusers, knew he was a

registered sex offender. If this were another case of Richins exposing himself to a

stranger, i.e., if the similarity prong here was met, it would probably be

appropriate to compare Richins to the “typical person” from the general

population because that is what he was as far as the prior incidents’ witnesses

were concerned. The same cannot be said here.

Given that the lack of similarity in this case would have “made it more

difficult for the State to meet its burden of demonstrating frequency,” id. ¶ 59, the

prosecution needed to do more than ask the court to determine frequency based

on its common conception. Using its common conception the court found that

being accused of lewdness “four times in 10 years is a frequency that would tend

to make me think it’s more likely than not that this occurred,” R.307. The court’s

finding is flawed because it fails to control for variants among populations or to

consider the dissimilarities discussed above. It may be true, as the prosecution

argued that “one would hope that the typical man is never actually accused of

masturbating in front of others,” R.304, but once an individual becomes a

38
registered sex offender, they cease to become typical. Without empirical data, the

court could not know, for example, whether a registered sex offender is more

likely to be falsely accused by someone who knows he is a registered sex offender

than an individual not registered as a sex offender.

The failure to account and control for variations in populations and by

proxy the dissimilarities in this case, especially in the absence of empirical data,

created the unacceptable risk of admitting propensity evidence under the cloak of

probability. Accordingly, the trial court erred because “[i]f 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.” Imwinkelried, supra, at 592.

In sum, in the absence of empirical data and given the lack of similarity

between the prior incidents and the case at bar, the trial court erred in finding the

doctrine of chances frequency prong met. Accordingly, the trial court abused its

discretion in admitting the prosecution’s proffered other acts evidence under the

doctrine of chances.

E. The trial court erred in ruling the prosecution’s proffered character

evidence was admissible under rule 403.

“Under rule 403 ‘[t]he court may exclude relevant evidence if its probative

value is substantially outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence.’” State v. Thornton, 2017 UT

39
9. ¶ 62, 391 P.3d 1016 (quoting Utah R. Evid. 403). In analyzing evidence under

rule 403 “courts are bound by the language of rule . . . rather than any set of

factors or elements,” and have “discretion to consider any relevant factors that

assist in determining whether the probative value of the [evidence] is

substantially outweighed by a danger of . . . unfair prejudice . . . .” State v.

Lowther, 2017 UT 34, ¶¶ 40–41, 398 P.3d 1032 (second omission in original)

(citation and internal quotation marks omitted). Further, when analyzing 404(b)-

character evidence under rule 403, a relevant factor to consider is whether the

evidence is probative of a non-character purpose and whether that probative

value is substantially outweighed by the unfair prejudice created by an improper

propensity purpose. See State v. Verde, 2012 UT 60, ¶ 18, 296 P.3d 673; see also

Thornton, 2017 UT 9, ¶ 59.

Here, the prosecution’s proffered character evidence lacked any proper

purpose. See supra, Parts I.A.–D. Accordingly, for the reasons explained below,

the probative value of the prosecution’s proffered character evidence was

outweighed by its danger of unfair prejudice, and the trial court abused its

discretion in holding otherwise.

First, even if rebutting Daughter’s mistake constituted a proper purpose

under rule 404(b)—it doesn’t—such that the prosecution’s proffered character

evidence was probative of that purpose, its probative value is substantially

outweighed by the danger of unfair prejudice. The evidence’s probative value in

this regard is scant because it derives only from the impermissible propensity

40
inference that, to use the words of the prosecution below, “Mr. Richins does this

all the time.” R.311.

Similarly, even if trial counsel had actually asserted fabrication as a

defense—he didn’t—and the other-acts evidence was probative of that

theoretically proper purpose, see Verde, 2012 UT 60, ¶ 46 (acknowledging “the

theoretical possibility that evidence of prior misconduct could be admitted under

rule 404(b) to [prove actus reus] by rebutting a charge of fabrication”), its

probative value is minimal and is, again, substantially outweighed by its danger

of unfair prejudice. Though the evidence may be probative of a different purpose,

the nature of the evidence still asks the jury to make an impermissible propensity

inference. It asks the jury to resolve the question of whether Daughter fabricated

her claim against Richins on the basis that he “does this all the time.” R.311.

The supreme court has explained that trial courts should exclude “bad acts

evidence if its tendency to sustain a proper inference is outweighed by its

propensity for an improper inference.” Verde, 2012 UT 60, ¶ 18. Further,

“[a]dmission of evidence is unfairly prejudicial . . . if it creates an undue tendency

to suggest decision on an improper basis.” State v. Gasper, 2018 UT App 164,

¶ 23, 872 Utah Adv. Rep. 33. Where the character evidence here has no tendency

to sustain a proper inference but does have an undue tendency to sustain an

improper propensity inference, its probative value is substantially outweighed by

the danger of unfair prejudice because it suggests a decision on an improper

basis. See id.; see also Gasper, 2018 UT App 164, ¶ 23. In sum, while the

41
prosecution’s proffered other-acts evidence may be probative of the proper

purposes above, the evidence’s failure to sustain a proper inference renders it so

unfairly prejudicial that the trial court erred in not excluding it. See id.

Next, while the prosecution’s proffered character evidence could

theoretically sustain the doctrine of chance’s “proper, non-character statistical

inference,” Lowther, 2017 UT 34, ¶ 39, even if the doctrine’s foundational

requirements were met—they weren’t—the statistical inference would still be

substantially outweighed by the danger of unfair prejudice. The problem with the

statistical inference in this case—again only assuming the inference was properly

supported by the doctrine’s foundational requirements—is that it is not actually

based on empirical data or real statistics, see supra, Part I.D.3. Without actual

statistical data showing the number of times a typical person may be accused of

exposing himself, i.e., without threshold or baseline data, the prosecution could

not show Richins was accused with a frequency high enough to “reach an

improbability threshold.” Imwinkelried, supra, at 590.

Relying on common conception to determine whether the improbability

threshold in this case was met creates the perception that the other-acts evidence

supports a proper statistical inference. But it also supports an improper

propensity inference that “Mr. Richins does this all the time.” R.311. “[I]n

practice the distinction [between the two inferences] can be a thin, difficult line

for the jurors to draw.” Imwinkelried, supra, at 590. Accordingly, when

propensity evidence is allowed to masquerade as probability evidence—because,

42
in part, it is not based on hard statistical data—the distinction all but disappears.

This creates the substantial danger of unfair prejudice because it allows the jury

to believe their inference that “he did it before, he probably did it again,” is of the

permitted, probability-based variety when it is not. Accordingly, any probative

value the prosecution’s proffered character evidence had under the doctrine of

chances was substantially outweighed by the danger of unfair prejudice because,

again, the evidence suggests a decision on an improper propensity basis and the

trial court erred in holding otherwise. See Gasper, 2018 UT App 164, ¶ 23.

In sum, the trial court erred in ruling the prosecution’s proffered evidence

admissible under rule 403 because the evidence’s scant probative value was

substantially outweighed by the danger of unfair prejudice.

F. The trial court’s error caused prejudice.

“If, in the absence of the evidentiary errors, there is a reasonable likelihood

of a more favorable outcome for [a] defendant, [this Court] must reverse the

[defendant’s] conviction.” State v. Rackham, 2016 UT App 167, ¶ 24, 381 P.3d

1161 (first alteration in original) (citation and internal quotation marks omitted).

Here, a reasonable likelihood of more favorable outcome exists because without

the improperly admitted other-acts evidence, the only evidence supporting

Richins’s conviction is Daughter’s less-than-certain account of what happened.

43
 The prosecution relied heavily both in opening and in closing on the

improperly admitted character evidence. 8 First, during opening, the prosecution

told the jury it would “be hearing about some data in this trial, some probabilities

and some things like that, that actually will be firm and strong and sound enough

that you can make conclusions based on that data.” R.376. After describing what

Daughter and Mother would testify to, the prosecution concluded his opening for

the jury with this: “You will hear evidence that four separate women[,] on four

separate occasions indicated that from 2007 to 2013, Mr. Richins exposed

himself to them. Reached down, touched his penis. Because of this evidence and

the evidence of [Daughter], we’ll be asking you to return a guilty verdict.” R.379–

80.

The prosecution’s closing began, “Ladies and gentleman of the jury, when I

spoke to you just this morning I talked a little bit about coincidences and

conclusions. AND now is the time when you as the jury get to make conclusions.”

R.472–73. The prosecution then briefly recounted Daughter’s testimony and

began to set up the propensity evidence telling the jury it will “no doubt hear that

she was mistaken in what she observed, this is a fabrication.” R.474. He

continues, “Now, I want you to think about the evidence you received as a

stipulation in reference to that argument because I think that’s where it’s

applicable.” Id. The prosecutor compared the stipulation of fact to Daughter’s

8The State’s opening, R.375–80, is available in Addendum G. The State’s closing,

R.472–478, is available in Addendum H.
44
testimony saying, “You’ve heard from four separate women that have described

essentially the same conduct about Mr. Richins. They said they saw his penis, and

they saw his hand touching his penis. They saw a very similar thing to what

[Daughter] described.” Id. Not long after that statement, the prosecutor again

returned to the propensity theme and asked the jury to consider the odds of it all:

So how is it when you apply that to these four separate allegations,

right, and then [Daughter’s] description of the exact same conduct
essentially, what are the odds of such a misfortune befalling Mr.
Richins on five separate occasions? That is relevant, relevant
evidence. So not only does she describe this incident, but it’s the exact
same incident that four women have described. That would be an
amazing poisoning of the well by the mother that somehow she’s
fabricated the exact same incident[s] that have been alleged to have
occurred on four separate occasions.
R.475. Finally, the prosecution concluded by asking, “[B]ased on the evidence

presented by [Daughter] and [Mother], and based on the stipulation of fact for

which you can consider specifically, is [Daughter] mistaken? Is she fabricating

this claim? And you can consider the notion that what is the objective

improbability of somebody having this bad of luck. It is no coincidence . . . it is a

clear, clear, clear conclusion.” R.477. The prosecution’s opening and closing

demonstrate the great reliance it had on the other-acts evidence in this case.

Comparing the prosecution’s heavy reliance on the 404(b) evidence with

the uncertainty and doubt trial counsel elicited through direct- and cross-

examination about what Daughter may have seen demonstrates prejudice. As

explained at various points above, the jury heard evidence that Daughter told

police it was “possible that [she] saw [Richins’s] hands in his pockets,” R.402,

45
that she “didn’t exactly see what he had in his hands,” id., and that it “wasn’t 100

percent clear to [her what she saw], but it certainly looked like he was holding

something down near his pockets. So maybe his thumbs were in his pockets,”

R.404. When the jury hears that the only eyewitness to the charged conduct—

recall that Mother said, “Hey, look, he may have just had his hands clasped in

front of him. That’s all I saw,” R.421—told police that it’s possible Richins hands

were in his pockets, that she “didn’t exactly see,” and that “maybe his thumbs

were in his pockets,” that creates reasonable doubt regardless of the fact that the

jury also heard Daughter say, “It kind of looked like he might have been

masturbating,” R.393.

Given all of this, a reasonable likelihood exists that the 404(b) evidence in

this case, regardless of the fact that it came in as a stipulation of fact as opposed

to through a parade of witnesses, tipped the scales and resolved the reasonable

doubt in this case. All the jury had to do to resolve the doubt is what the

prosecutor asked them to do, they only had to ask themselves, “What are the

chances?” and just like that, they could make their decision.

Finally, the trial court’s limiting instruction did not cure or mitigate the

prejudice in this case. The limiting instruction here provided:

You have heard evidence that four women have made similar
allegations to those presented in this trial against Ronald Richins
before the act(s) charged in this case. You may consider this evidence,
if at all, for the following limited purpose:
1) to rebut a claim that a witness was mistaken in what she saw
on the date in question;

46
 2) to rebut the idea that witness’s testimony was the result of
fabrication.
This evidence was not admitted to prove a character trait of the
defendant or to show that he acted in a manner consistent with such
trait. Keep in mind that the defendant is on trial for the crime charged
in this case, for that crime only. You may not convict a person simply
because you believe he may have committed some other acts at
another time.
R.216.
The court’s limiting instruction did not mitigate the prejudice in this case

because it told the jury that it could consider the character evidence admitted in

this case for improper purposes. See supra, Parts I.B.–C. 9 Further while the

instruction generally explains that the jury cannot convict simply because it

believes Richins committed other acts in the past, the instruction simply is not

enough to overcome the amount of prejudice the character evidence in this case

caused.

For the reasons explained above, the trial court’s error in admitting the

prosecution’s proffered character evidence in this case caused prejudice. But for

the error, a reasonable likelihood of a more favorable outcome exists for Richins.

We ask this Court to recall that it has “no delusion that a limiting instruction can

undo serious prejudice,” and reverse. State v. Balfour, 2018 UT App 79, ¶ 34, 418

P.3d 79 (citation and internal quotation marks omitted).

9 Trial counsel objected to the instruction, “And to be clear, so that the record on
appeal, I believe, respectfully, your 404(b) ruling is wrong. And this repeats the
mistake by saying that paragraph 1 to rebut a claim that the witness was mistaken
in what she saw on the date in question, that’s not what 404(b) stands for.”
R.458.
47
 CONCLUSION

For the reasons explained above, the trial court erred in allowing evidence

of Richins's prior bad acts under rules 404(b) and 403. The trial court's error

caused prejudice. Accordingly, we respectfully request that this Court reverse and

remand for a new trial.

SUBMITTED this c2. zrh day of March 2019.

Attorney for Defendant/Appellant

 CERTIFICATE OF COMPLIANCE

In compliance with the type-volume limitation of Utah R. App. P. 24(f)(1), I

certify that this brief contains 12, 354 words, excluding the table of contents,

table of authorities, addenda, and certificates of compliance and delivery. In

compliance with the typeface requirements of Utah R. App. P. 27(b), I certify that

this brief has been prepared in a proportionally spaced font using Microsoft

Word 2010 in Georgia 13 point.

In compliance with rule 21(g), Utah Rules of Appellate Procedure, and rule

4-202.09(9)(A), Utah Code of Judicial Administration, I certify that, upon

information and belief, all non-public information has been omitted from the

foregoing brief of defendant/ appellant.

49
 CERTIFICATE OF DELIVERY

I, SARAH J. CARLQUIST, hereby certify that I have caused to be hand-

delivered an original and five copies of the private brief, and one copy of the

public brief to the Utah Court of Appeals, 450 South State Street, 5th Floor, Salt

Lake City, Utah 84114; and delivered two copies of the private brief, and two

copies of the public brief to the Utah Attorney General's Office, 160 East 300

South, 6 th Floor, PO Box 140854, Salt Lake City, Utah 84114, this ,27fh day of

March 2019. I have also caused a searchable pdf of the private and public briefs

to be emailed to the Utah Court of Appeals at courtofappeals@utcourts.gov and to the

Utah Attorney General's Office at criminalappeals@agutah.gov, within 14 days

pursuant to Utah Supreme Court Standing Order No. 8.

DELIVERED this _ _ _ day of March 2019.

so
ADDENDUM A
 Utah Code § 76-9-702

§ 76-9-702. Lewdness

(1) A person is guilty of lewdness if the person under circumstances not amounting to
rape, object rape, forcible sodomy, forcible sexual abuse, aggravated sexual assault, or
an attempt to commit any of these offenses, performs any of the following acts in a
public place or under circumstances which the person should know will likely cause
affront or alarm to, on, or in the presence of another who is 14 years of age or older:
(a) an act of sexual intercourse or sodomy;
(b) exposes his or her genitals, the female breast below the top of the areola, the
buttocks, the anus, or the pubic area;
(c) masturbates; or
(d) any other act of lewdness.

(2)(a) A person convicted the first or second time of a violation of Subsection (1) is
guilty of a class B misdemeanor, except under Subsection (2)(b).
(b) A person convicted of a violation of Subsection (1) is guilty of a third degree felony
if at the time of the violation:
(i) the person is a sex offender as defined in Section 77-27-21.7;
(ii) the person has been previously convicted two or more times of violating Subsection
(1); or
(iii) the person has previously been convicted of a violation of Subsection (1) and
has also previously been convicted of a violation of Section 76-9-702.5.
(c)(i) For purposes of this Subsection (2) and Subsection 77-41-102(17), a plea of
guilty or nolo contendere to a charge under this section that is held in abeyance under
Title 77, Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction.
(ii) This Subsection (2)(c) also applies if the charge under this Subsection (2) has
been subsequently reduced or dismissed in accordance with the plea in abeyance
agreement.

(3) A woman’s breast feeding, including breast feeding in any location where the
woman otherwise may rightfully be, does not under any circumstance constitute a lewd
act, irrespective of whether or not the breast is covered during or incidental to feeding.

Credits
Laws 1973, c. 196, § 76-9-702; Laws 1983, c. 88, § 32; Laws 1989, c. 52, § 1; Laws 1994,
c. 131, § 1; Laws 1995, c. 131, § 4, eff. May 1, 1995; Laws 1996, c. 137, § 6, eff. April 29,
1996; Laws 1999, c. 302, § 6, eff. May 3, 1999; Laws 2000, c. 128, § 4, eff. May 1, 2000;
Laws 2003, c. 325, § 2, eff. May 5, 2003; Laws 2007, c. 350, § 1, eff. April 30, 2007;
Laws 2009, c. 354, § 1, eff. May 12, 2009; Laws 2009, c. 366, § 1, eff. May 12, 2009;
Laws 2012, c. 303, § 3, eff. May 8, 2012; Laws 2013, c. 278, § 67, eff. May 14, 2013; Laws
2015, c. 210, § 4, eff. May 12, 2015.
ADDENDUM B
 The Order of the Court is stated below:
Dated: August 09, 2018 At the direction of:
09:37:13 AM /s/ KATIE BERNARDS-
GOODMAN
District Court Judge
by
/s/ MELODY SIVERTSON
District Court Clerk
3RD DIST. COURT - WEST JORDAN
SALT LAKE COUNTY, STATE OF UTAH
______________________________________________________________________________________

STATE OF UTAH, : MINUTES

Plaintiff, : SENTENCE, JUDGMENT, COMMITMENT
:
vs. : Case No: 171403503 FS
RONALD JAY RICHINS, : Judge: KATIE BERNARDS-GOODMAN
Defendant. : Date: August 9, 2018

______________________________________________________________________________________
PRESENT
Clerk: melodys
Prosecutor: MAY, THADDEUS J
Defendant Present
The defendant is not in custody
Defendant's Attorney(s): BUGDEN JR, WALTER F

DEFENDANT INFORMATION
Date of birth: July 20, 1968
Sheriff Office#: 196632
Audio
Tape Number: 32 Tape Count: 9.23

CHARGES
1. LEWDNESS BY A SEX OFFENDER - 3rd Degree Felony
Plea: Not Guilty - Disposition: 06/20/2018 Guilty

SENTENCE PRISON
Based on the defendant's conviction of LEWDNESS BY A SEX OFFENDER a 3rd Degree Felony,
the defendant is sentenced to an indeterminate term of not to exceed five years in the
Utah State Prison.
The prison term is suspended.

ORDER OF PROBATION
The defendant is placed on probation for 60 month(s).
Probation is to be supervised by Adult Probation and Parole.

Printed: 08/09/18 09:37:12 Page 1 of 2

Case No: 171403503 Date: Aug 09, 2018
______________________________________________________________________________________

DEFENDANT IS ORDERED TO SERVE 180 DAYS IN THE SALT LAKE COUNTY JAIL FORTHWITH.
No violation.
Report to AP&P within 48 hours of release.
Sex Offender Group A conditions.
Comply with all standard drug/alcohol conditions.
Usual and ordinary conditions.
Smoke in backyard.

End Of Order - Signature at the Top of the First Page

Printed: 08/09/18 09:37:12 Page 2 of 2

ADDENDUM C
SIM GILL, Bar No. 6389
District Attorney for Salt Lake County
THADDEUS MAY, Bar No. 11317
Deputy District Attorneys
111 East Broadway, Suite 400
Salt Lake City, Utah 84111
Telephone: (385) 468-7600
___________________________________________________________________________

IN THE THIRD DISTRICT COURT, SALT LAKE DEPARTMENT

IN AND FOR SALT LAKE COUNTY, STATE OF UTAH

STATE OF UTAH, STATE’S NOTICE OF INTENT TO

Plaintiff, RELY ON
404(B) EVIDENCE
vs.
Case No. 171403503
RONALD RICHINS,
Honorable Katie Bernards-Goodman
Defendant.

THE STATE OF UTAH, by and through its attorneys, Sim Gill, District Attorney for Salt

Lake County, and Thaddeus May, Deputy District Attorney, hereby files its Memorandum in

Support of its Motion in Limine Related to Defendant’s 404(b) Evidence.

STATEMENT OF FACTS

On May 18 2017 K.M. and her mother were backing out of their driveway when K.M.

noticed her neighbor the Defendant looking in their direction. K.M. also observed that the

Defendant’s jeans were unbuttoned and his genitals were exposed and that the Defendant was

touching his genitals as he watched her and her mother.

0089
 On November 18 2013 C.R. was waiting for her bus when she noticed a man she later

identified as the Defendant pull down his pants, expose his penis, and began to touch himself.

The Defendant was found guilty by jury trial for Lewdness on February 4 2015.1

On September 17 2007 several female junior high students were returning from an

intramural soccer game when they noticed a man pull alongside them in a truck. Several

students noticed that the man in the truck, later identified as the Defendant, was exposing his

penis to them as he watched them. On September 3 2009 the Defendant pled guilty to two

counts of lewdness for his conduct in this matter.2

On July 28 2007 female victim T.W. was on horseback with a friend in Dimple Dell park

when she saw a male, later identified to be the Defendant, expose his penis, make eye contact

with her and began to masturbate. T.W. continued down the trail about 100 yards on horseback

when the Defendant reappeared and again exposed himself to T.W. and her friend. Officers

responded to the scene and found the defendant who admitted post-Miranda to officer

Leiendecker that he was masturbating in front of the two women.3

On May 31st 2007 K.Ma. was walking back to her car after shopping in Cottonwood

Heights. on her way into the mall She noticed a man in a car who was looking at her. (This is a

little confusing – you say first she was walking back to her car, but then you say she was on her

way into the mall.) When she returned to her car she saw that the same man had moved his car

next to hers and was looking at her. When she got into her car she noticed the man had his

windows down and noticed his erect penis was exposed and he was masturbating. She took

down the license plate of the individual and provided a description of the individual to law

1
See attached exhibit 1
2
See attached exhibit 2
3
See attached exhibit 3

0090
enforcement. Officer Jaroscak with the Unified Police discovered the license plate provided by

K.Ma. was registered to Ronald Richins, the Defendant. Post-Miranda, Defendant admitted that

he was at the same shopping center as the victim in his truck, during the time when K.Ma.

alleged he exposed himself. Defendant denied exposing himself. Officer Jaroscak also noted

that the defendant matched the physical description provided by the K.Ma.4

The State asserts that the proposed 404(b) evidence will show that K.M. was not

mistaken in her identification of the Defendant’s during his alleged act of exposing himself. This

proposed 404(b) evidence will show Defendant’s identity, common scheme or plan, and absence

of mistake or lack of accident. Additionally the proposed 404(b) evidence is admissible under

the Doctrine of Chances theory.

STANDARD FOR ADMISSIBILITY UNDER RULE 404(b)

Under Rule 404(b) of the Utah Rules of Evidence, evidence of other crimes, wrongs, or

acts are not admissible solely to prove the character of a defendant in order to show action in

conformity with that character. However, such evidence is admissible for several non-character

purposes, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or lack of accident.” UTAH R. EVID. § 402. In determining the admissibility

of such 404(b) evidence, the Supreme Court of Utah established a three-part test: (1) whether

the evidence of the bad acts is being offered for a proper, 404(b) non-character purpose; (2)

whether the evidence meets the relevancy requirement of Utah Rule of Evidence 402; and (3)

whether the evidence is admissible under Utah Rule of Evidence 403. See State v. Thornton,

2017 UT 9, ¶¶39, 44, 391 P.3d 1016 (repudiating the “scrupulous examination” standard and

4
See attached exhibit 3

0091
explaining district courts need to follow the language found in the Rules of Evidence); State v.

DeCorso, 1999 UT 57, ¶¶19-20, 993 P.2d 837 (originally outlining the present test).

A. Proper 404(b) non-character purpose.

“The threshold 404(b) question is whether the evidence has a plausible avowed purpose

beyond the propensity purpose that the rule deems improper.” Thornton, 2017 UT 9 at ¶58.

Courts needs only to “look to the plain language of rule 404(b) for the standard.” State v.

Lowther, 2017 UT 34, ¶30 n.40, 398 P.3d 1032 (repudiating the judicial gloss characterizing the

rule as presumptively inclusionary). “Evidence may be admissible for another purpose, such as

proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or lack of accident.” UTAH R. EVID. § 402; but see State v. Housekeeper, 2002 UT 188, ¶ 28, 62

P.3d 444 (noting that this list is not exhaustive). “And though multiple purposes may be

proffered, only one valid, noncharacter purpose is required.” State v. Lucero, 2014 UT 15, ¶14,

328 P.3d 841 (emphasis added).

B. Evidence is relevant under Rule 402.

Rule 402 provides that “relevant evidence is admissible unless otherwise provided.”

UTAH R. EVID. § 402. Relevant evidence is defined as “evidence having any tendency to make

the existence of any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” UTAH R. EVID. § 401. Evidence is

admissible if it tends to prove some fact, other than defendant’s propensity to commit crime,

material to the crime. Decorso, 1999 UT 57 at ¶20. “In the context of rule 404(b), similar act

evidence is relevant only if the jury can reasonably conclude by a preponderance of the evidence

that [1] the act occurred and that [2] the defendant was the actor.” Lucero, 2014 UT 15 at ¶19

(citation and quotations omitted).

0092
 C. Evidence is not unduly prejudicial under Rule 403.

Rule 403 states that “[a]lthough relevant, evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless presentation

of cumulative evidence.” UTAH R. EVID. § 403. “Of importance here is that the probative value

of the evidence must be ‘substantially outweighed by the danger of unfair prejudice,’ and unfair

prejudice results only where the evidence has an ‘undue tendency to suggest decision upon an

improper basis.’” Lucero, 2014 UT 15 at ¶32 (citations omitted; emphasis in original).

One way evidence of prior misconduct can be relevant is under the Verde doctrine of

chances. This is a “theory of logical relevance that ‘rests on the objective improbability of the

same rare misfortune befalling one individual over and over.’” Verde, 2012 UT 60 at ¶ 47

(citation omitted). In order to permit such evidence under the doctrine of chances, the Verde

court spelled out four foundational requirements: (1) materiality, i.e., matter related to a bona

fide issue in dispute; (2) similarity, i.e., uncharged incident must be roughly similar to the

charged crime, but not necessarily a pattern; (3) independence, i.e., no collusion among various

accusers; and (4) frequency, i.e., an unusual loss “more frequently than the typical person

endures such losses accidentally.” Id. at ¶ 57-61. For purposes of the doctrine of chances, one

prior occasion of criminal behavior can be sufficient. For example, in State v. Lomu, 2014 UT

App 41, 321 P.3d 243, the State was permitted to introduce evidence of another aggravated

robbery committed by the defendant. The Court of Appeals upheld the trial court’s decision

under the doctrine of chances, even though there was only one prior crime. The court stated:

To begin, we note that the commission of a crime on two occasions in a specific

manner is certainly less compelling than the commission of the same crime a half
dozen or more times. So in considering the probative value of other acts, courts

0093
 should properly have in mind the principle that the fewer the incidents there are,
the more similarities between the crime there must be.

Id. at 32. The doctrine of chances is not limited to just rebutting claims of fabrication. See

Lowther, 2017 UT 34 at ¶23 (citing where the doctrine was employed to rebut defenses based on

intent, mistake, coincidence, and absence of mistake or lack of accident); see e.g., Lomu, 2014

UT App 41 at ¶25 (“Given that Defendant’s chief defense was that he did not intend to commit

any crime greater than retail theft … [i]t was proper to allow the jury to determine whether

Defendant could have twice unintentionally found himself at the same type of store, in the same

city, with the intent to steal beer with complete strangers and without any knowledge of his

companions’ plans to make a gun threat, or whether the two incidents taken together were

evidence of a higher likelihood that Defendant had the requisite intent for robbery or aggravated

robbery”).

The Utah Supreme Court has recently explained that these analytical tools should be used

to help evaluate the rule; however, these various factors should never override the textual

language of the rule itself.

We have repeatedly stated that courts are not bound to any particular set of
factors or elements when conducting a rule 403 balancing test. And while
Verde’s requirements may help a court assess the probative value of prior bad acts
evidence, we clarify that in evaluating doctrine of chances evidence under rule
403, a court may consider any relevant fact and need not necessarily consider
Verde’s foundational requirements or limit its analysis to these requirements. …
… The district court expressly noted that it was “tasked with considering
the Shickles factors” to perform a rule 403 balancing test. It then “moor[ed] its
rule 403 analysis entirely and exclusively to all of the Shickles factors.” Further,
it did not rely on the text of rule 403 to assess the risk of unfair prejudice …
We have expressly disavowed this type of mechanical application of the
Shickles factors. … A court must instead bind its analysis to the text of rule 403,
considering those factors that are appropriate given the particular circumstances
of the case.

0094
Lowther, 2017 UT 34 at ¶¶29, 44, 45; see also Lucero, 2014 UT 15 at ¶32 (“[W]hile some of

these factors may be helpful in assessing the probative value of the evidence in one context, they

may not be helpful in another. It is therefore unnecessary for courts to evaluate each and every

factor and balance them together in making their assessment. This is because courts are bound

by the text of rule 403, not the limited list of considerations outlined in Shickles.”) (citations

omitted and emphasis added).

ANALYSIS OF PROPOSED EVIDENCE FOR WHICH STATE SEEKS ADMISSION

The State seeks admission at trial of the testimony of three prior victims.

1. Witness from September 17 2007

a. Factual Account

On September 7 2007 several female junior high students were returning from an

intramural soccer game when they noticed a man pull alongside them in a truck. Several

students noticed that the man in the truck, later identified as the Defendant, was exposing his

penis to them as he watched them. At trial the State will call J.W., one of the witnesses to this

incident, to testify about what she saw.

b. Analysis:

This evidence will be used for the non-character purpose of absence of mistake or lack of

accident. It is anticipated that the Defendant will claim that K.M. was mistaken in what she

witnessed; the testimony of J.W. will rebut this argument.

2. May 31 2007

0095
 On May 31st 2007 K.Ma. was walking back to her car after shopping in Cottonwood

Heights. She noticed a man in a car on her way into the mall who was looking at her. When she

returned to her car she saw that the same man had moved his car next to hers and was looking at

her. When she got into her car she saw the man had his windows down and noticed his erect

penis was exposed and he was masturbating. She took down the license plate of the individual

and provided a description of the individual to law enforcement. Officer Jaroscak with the

Unified Police discovered the license plate provided by K.Ma. was registered to Ronald Richins,

the Defendant. Post-Miranda, Defendant admitted that he was at the same shopping center as the

victim in his truck, during the time when K.Ma. alleged he exposed himself. Defendant denied

exposing himself. Officer Jaroscak also noted that the defendant matched the physical

description provided by the K.Ma.

a. Analysis

This evidence will be used for the non-character purpose of absence of mistake or lack of

accident. It is anticipated that the Defendant will claim that K.M. was mistaken in what she

witnessed; the testimony of K.Ma. will rebut this argument.

3. July 28 2007 incident

a. Factual Account

On July 28 2007 female victim T.W. was on horseback with a friend in Dimple Dell park

when she saw a male, later identified to be the Defendant, expose his penis, make eye contact

with her and began to masturbate. T.W. continued down the trail about 100 yards on horseback

when the Defendant reappeared and again exposed himself to T.W. and her friend. Officers

0096
responded to the scene and found the defendant who admitted post-Miranda to officer

Leiendecker that he was masturbating in front of the two women.5

c. Analysis:

This evidence will be used for the non-character purpose of absence of mistake or lack of

accident. It is anticipated that the Defendant will claim that K.M. was mistaken in what she

witnessed; the testimony of T.W. will rebut this argument.

November 18 2013 incident

a. Factual Account

On November 18 2013 C.R. was waiting for her bus when she noticed a man she later

identified as the Defendant pull down his pants, expose his penis, and began to touch himself.

b. Analysis:

This evidence will be used for the non-character purpose of absence of mistake or lack of

accident. It is anticipated that the Defendant will claim that K.M. was mistaken in what she

witnessed; the testimony of C.R. will rebut this argument.

4. The evidence of the Defendant’s prior victims should be admitted under the
doctrine of chances.

In order to permit such evidence under the doctrine of chances, the Verde court spelled

out four foundational requirements: (1) materiality, i.e., matter related to a bona fide issue in

dispute; (2) similarity, i.e., uncharged incident must be roughly similar to the charged crime, but

not necessarily a pattern; (3) independence, i.e., no collusion among various accusers; and (4)

5
See attached exhibit 3

0097
frequency, i.e., an unusual loss “more frequently than the typical person endures such losses

accidentally.” Id. at ¶ 57-61. Each victim’s account comports with these requirements.

The Materiality prong demands that the issue simply be in dispute. Here, Defendant will

likely assert at trial that the victim K.M. is mistaken in what she saw and that he was not in fact

exposing himself. This line of defense would place the matter of K.M’s observations in direct

dispute.

The similarity prong requires rough similarity, which is present in all of the proposed

prior incidents. All involved the Defendant exposing himself. All incidents involved female

victims. All incidents were reported immediately. All incidents involved the Defendant

exposing his penis and touching his penis. Additionally, the present fact pattern involves all of

the same points of similarity discussed above. The proffered evidence therefore meets the

similarity prong.

The independence prong is also satisfied. All the witnesses in this case have no

relationship to one another. There is no evidence to suggest collusion.

The frequency prong is also satisfied. The chances of four other, independent women

describing in essence the same offense are infinitesimally small. K.M. marks the fifth woman in

the last ten years who will indicate that the Defendant has shown her his penis. This frequency

of occurrence is clearly “more frequently” than a “typical person” would endure.

In summation the facts at hand are tailor made for application of the doctrine of chances.

This evidence does not ask the jury to consider Defendant’s bad character but instead asks the

jury to consider the “objective improbability” of so many similar allegations being levied against

the same person in such a short period of time. State v Lopez, 2018 UT 5 at ¶50, 19 (footnote

explaining theory of doctrine of chances).

10

0098
 5. The proffered evidence does not run afoul of Rule 403.

Rule 403 states that “[a]lthough relevant, evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless presentation

of cumulative evidence.” UTAH R. EVID. § 403. The evidence sought is powerfully probative.

The key issue at trial will likely be the veracity of K.M.’s observations. Without the proposed

404(b) evidence this fact judgment will rely solely on K.M.’s word. The added weight of the

proposed evidence would make the facts surrounding K.M’s observations more reliable.

While it is undeniably prejudicial to have the jury hear from three prior victims, all of the

alleged prior conduct is of the same nature as the facts at hand. Thus, the additional 404(b)

evidence will not expose the jury to anything new or otherwise more offensive or prejudicial

than the testimony of K.M. herself. As a result, any prejudice the evidence may create is

minimal, does not substantially outweigh its probative value, and does not therefore amount to

unfair prejudice. The doctrine of chances theory would be meaningless if it were found to be

inapplicable in a fact pattern where the prerequisites for admissibility are so clearly met. The

State thereby asks this court to grant its motion to admit 404(b) evidence.

DATED this 16 February 2018.

SIM GILL
District Attorney

/s/ Thaddeus May USB 11317

THADDEUS MAY
Deputy District Attorney

11

0099
12

0100
 CERTIFICATE OF MAILING

I hereby certify that I mailed a true and correct copy of the foregoing STATE’S

MEMORANDUM IN SUPPORT ITS MOTION IN LIMINE RELATED TO DEFENDANT’S

404(B) EVIDENCE, to the following at the addresses indicated below:

Wally Bugden [ ] U.S. Mail

Attorney for Defendant [ ] Messenger/Hand Delivery
445 E 200 South #150 [x] eFile
Salt Lake City, UT 84111

DATED this 16 February 2018.

/s/ Thaddeus May USB#8219

13

0101
ADDENDUM D
WALTER F. BUGDEN, JR. (480)
BUGDEN & ISAACSON, L.L.C.
445 East 200 South, Suite 150
Salt Lake City, UT 84111
Telephone: (801) 467-1700
Facsimile: (801) 746-8600
Email: wally@bilaw.net

Attorneys for Defendant

IN THE THIRD DISTRICT COURT / WEST JORDAN DEPARTMENT

SALT LAKE COUNTY, STATE OF UTAH

STATE OF UTAH,

Plaintiff, DEFENDANT’S OBJECTION TO

STATE’S NOTICE OF INTENT TO
vs. RELY ON 404(B) EVIDENCE

RONALD RICHINS, Case No. 171403503

Defendant.

Defendant, Ronald Richins, by and through counsel, Walter F. Bugden, Jr.,

hereby submits this Objection to the State’s Motion of Intent to Rely on 404(b) evidence

against Mr. Richins. The State wishes to introduce evidence from four (4) previous

incidents pursuant to Utah Rule of Evidence 404(b) and the doctrine of chances. This

evidence is inadmissible pursuant to Utah R. Evid. 403 and 404(b). Further, it is not

admissible under the doctrine of chances. Thus, Mr. Richins respectfully requests that

the State be prohibited from introducing this evidence at trial.

0114
 RELEVANT BACKGROUND

1. K.M. and her mother, R.M., allege that on May 18, 2017 the Defendant,

their neighbor, exposed his genitals and touched them while they were leaving home.

2. When the alleged incident took place, the Defendant was on his property,

which was adjacent to that of K.M. and R.M.

3. Both K.M. and R.M. were aware that the Defendant was a registered sex

offender. A neighbor told them when the Defendant moved into the neighborhood nine

years earlier.

4. The Defendant was found guilty of Lewdness for a November 18, 2013

incident where he exposed himself to a woman and masturbated while standing near a

bus stop in the early morning.

5. In 2007 there were three separate incidents. The Defendant, respctively

(1) pled guilty to two counts of lewdness for an incident that occurred on September 17,

(2) Pled no contest to one count of lewdness for an incident that occurred on July 28,

and (3) had one count of lewdness dismissed for an incident that occurred on May 31.

6. All of the 2007 incidents occurred on public property some distance from

the Defendant’s place of residence.

ARGUMENT

THIS COURT SHOULD EXCLUDE ANY EVIDENCE OF PRIOR

ALLEGATIONS MADE AGAINST MR. RICHINS.

Under the holding of State v. Nelson-Waggoner, 2000 UT 59,

The Utah Supreme Court has set forth a three-step process for
determining whether prior bad acts evidence is admissible. First, a trial
court must determine whether the bad acts evidence is being offered for a
proper, non-character purpose, such as one of those specifically listed in

0115
 rule 404(b). Second, the court must determine whether the prior bad acts
evidence meets the requirements of rule 402. Third, the trial court must
determine whether the prior bad acts evidence meets the requirements of
rule 403.

State v. Bradley, 2002 UT App 348, ¶ 19, 57 P.3d 1139, 1145.

Here, the allegations are impermissible character evidence under Rule 404(b) of

the Utah Rules of Evidence. The defense is not arguing that this evidence is

inadmissible under Rule 402, although it reserves the right to make such an argument if

it is warranted at a later time. However, when looking at the third step from Nelson-

Waggoner, this evidence is substantially more prejudicial than probative and should be

excluded under Rule 403 of the Utah Rules of Evidence. The defense asserts that the

State wishes to introduce this evidence in order inflame the jury’s animosity, and to

improperly invite the jury to infer his guilt in this case based on previous accusations

and convictions

I. THE OFFERED EVIDENCE OF PRIOR BAD ACTS IS IMPERMISSIBLE

CHARACTER EVIDENCE UNDER UTAH RULE OF EVIDENCE 404(B)
AND MUST BE EXCLUDED.

Evidence of prior allegations against Mr. Richins should be excluded under Utah

Rule of Evidence 404(b), which reads in relevant part:

Evidence 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. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.

Utah R. Evid. 404(b)(1)(2)

Under Rule 404(b) the admissibility of evidence depends on the purpose for

which it is being offered. If the evidence is being used to suggest that the Defendant

has acted in conformity with his allegedly bad character the evidence is inadmissible.
3

0116
Evidence which is used to invite a jury to conclude, “he did it before, therefore he did it

again” is improper under the Rules of Evidence and must be excluded.

If the evidence is used for another purpose, such as showing opportunity,

absence of mistake, lack of accident, or identity it may be admissible subject to possible

exclusion under other evidentiary rules such as 403. This is not as simple a distinction

to make in practice as it might appear from the text of the rule itself. As the Utah

Supreme Court has said,

“The difficulty in applying this simple rule, however, springs from the fact that
evidence of prior bad acts often will yield dual inferences—and thus betray both a
permissible purpose and an improper one. Thus, evidence of a person's past
misconduct may plausibly be aimed at establishing motive or intent, but that
same evidence may realistically be expected to convey a simultaneous inference
that the person behaved improperly in the past and might be likely to do so again
in the future.”

State v. Verde, 2012 UT 60, ¶ 16, 296 P.3d 673, 678.

Because of the dual inferences that can arise from such evidence “the court

should carefully consider whether it is genuinely being offered for a proper, non-

character purpose, or whether it might actually be aimed at sustaining an improper

inference of action in conformity with a person's bad character.” Id. at ¶ 18. In the case

before the court, the Defendant believes the State’s offered evidence is aimed at

establishing and sustaining just such an “improper inference,” and is therefore

inadmissible under Rule 404(b).

It is true that the evidence may also yield a permissible inference under the rules,

however this is not enough on its own to make the evidence admissible. In this case,

even if the State can assert a proper, non-character purpose for admitting the evidence,

it should still be excluded under Rule 404(b). This is because the evidence is not being

4
0117
offered for a legitimate non-propensity purpose, and thus the only purpose of the

evidence is to support an “inference that the person behaved improperly in the past and

might be likely to do so again in the future.” Id. at ¶ 16. As Utah courts have

consistently maintained, this is “an improper inference of action in conformity with a

person's bad character” and should be excluded at trial. Id. at ¶ 18.

As the Court recently held in State v. Thornton, “where the proper purpose put

forward by the prosecution is addressed to an issue that is not actually disputed, and

where the court concludes that the only real effect of the evidence is to suggest likely

action in conformity with bad character,” State v. Thornton, 2017 UT 9, ¶ 59, 391 P.3d

1016, 1027 (Sup.Ct.), such evidence “should be excluded despite a proffered (but

unpersuasive) legitimate purpose.” Id at ¶ 17.

Here, the Defendant is not arguing mistake, accident, lack of opportunity, or

incorrect identification. Therefore, the State’s offered evidence is inadmissible to prove

any of; absence of mistake, lack of accident, opportunity, or identity. In the case before

the court, Mr. Richins asserts that he did not expose himself to either K.M. or R.M., nor

did he masturbate in front of them.

The State is incorrect in its assertion that the proffered evidence will address a

defense of absence of mistake. In its own analysis of the proposed evidence, the State

asserts that each prior incident and adjudication being offered under 404(b) will rebut an

anticipated defense claim that K.M. was mistaken in what she alleges she witnessed.

However, absence of mistake under 404(b) does not refer to a defense claim that a

witness or accuser was mistaken, but to a claim that, though the Defendant may have

done what he was accused of, he did so mistakenly or by accident. This is not a

5
0118
defense being asserted here, therefore the proposed evidence does not address an

issue actually in dispute and the State’s asserted legitimate, non-propensity purpose for

offering the evidence is ’unpersuasive’ under the holdings of Verde and Thornton.

Instead, the State seeks to admit the prior allegations in order to impermissibly

demonstrate propensity, and that the Defendant acted in conformity with that propensity

in this case. Such evidence is impermissible and must be excluded.

The facts of the current case differ from others where the courts have admitted

evidence with both an improper and proper purposes. In State v. Norcutt the court

admitted evidence of a methamphetamine cookbook and equipment discovered in the

defendant’s bus to prove absence of mistake, because the evidence refuted Norcutt’s

asserted defense. “Norcutt’s defense at trial [was] that he was not the owner of the

equipment and that the equipment was placed in his bus by a third party.” State v.

Norcutt, 139 P.3d 1066, 1072 (Utah Ct. App. 2006). As stated previously, the

Defendant is not asserting a defense of mistake or accident, and therefore the State’s

proposed evidence cannot be offered to rebut such a defense.

In State v. Johnson the Court held that admitting evidence of the defendant’s

prior crime in order to establish identity was appropriate because it was “reasonably

necessary and highly probative of a material issue.” State v. Johnson, 748 P.2d 1069,

1075 (Utah Sup.Ct. 1987). This material issue was the contested identity of the

perpetrator. Unlike Johnson, the Defendant here is not claiming a mistake of identity,

and therefore the evidence of previous allegations cannot be “highly probative of a

material issue” regarding such a defense.

6
0119
 In the case at bar, the Defendant is not arguing that he made a mistake (by

exposing himself) or committed some version of the alleged crime by accident, nor that

he lacked opportunity, or that he was not the person identified by K.M. and R.M.;

instead, he is arguing that he did not expose himself or masturbate. Unlike in Norcutt or

Johnson, Mr. Richins is not asserting a defense that the offered evidence will serve to

rebut. Here, the State claims it is offering this evidence to refute a defense that the

Defendant is not asserting nor will he assert. Instead, the actual purpose of such

evidence is to support the improper inference that the Defendant has a bad character

and has acted in confirming with that bad character. Such character evidence is

inadmissible under Rule 404(b) of the Utah Rules of Evidence and should be excluded.

II. THE OFFERED EVIDENCE OF PRIOR BAD ACTS IS IMPERMISSIBLE

EVIDENCE UNDER THE DOCTRINE OF CHANCES AND MUST BE
EXCLUDED.

The evidence the State wishes to offer in this case also fails to satisfy the

requirements laid out by the Utah Supreme Court for admission under the doctrine of

chances. “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.’” State v. Lopez, ¶54, 2018 UT 5, quoting Verde, 2012 UT 60. It is important to

note, however, that the Court in Verde held that in order “to distinguish permissible and

impermissible uses of evidence of prior bad acts” Verde at ¶ 55, four criteria “should be

considered within the context of a rule 403 balancing analysis. Id at ¶ 60. The Court in

Lopez affirmed the holding in Verde “that for evidence to be admitted under the doctrine

of chances, it must meet four foundational requirements: materiality, similarity,

7
0120
independence, and frequency.” State v. Lopez, ¶ 54, 2018 UT 5. The evidence the

State wishes to introduce in this case does not meet these requirements.

The offered evidence is not material because it does not address a defense

raised by the Defendant. There is no contested issue of identity or opportunity, nor is

there a contested claim of mistake or accident. As explained previously the State is

incorrect in asserting that a defense claim that the accuser is mistaken satisfies the

404(b) claim of mistake such that the State can offer evidence to rebut it. 404(b) refers

to a claim of mistake or accident by the defendant; not by a witness or accuser.

The evidence is not sufficiently similar or frequent. As the Court states in Lopez,

the requirements of “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.” Id at ¶57. The most recent previous incident

occurred 3 ½ years previously, in 2013. The other incidents the State wishes to

introduce are more than nine (9) years old and occurred in 2007. Here, as in Lopez,

there are material and contextual differences between the various incidents sufficient

that they fail to clear the bar for similarity.

In Lopez each act involved drawing a firearm in the presence of family members,

but the Court still found insufficient similarity to justify allowing the evidence in under the

doctrine of chances. Here, of the prior incidents the State wishes to introduce, one

incident occurred outside at a bus stop before an adult woman, one in his car on the

road next to a bus of students and teachers, one on foot in a suburban park, Dimple

Dell, before two young women on horseback, and one while in his car in a shopping-

center parking lot before an adult female. However, the case at bar concerns an

8
0121
incident that took place at the Defendant’s private residence, before a mother and

daughter. Thus, the prior instances are too distant in time, too infrequent, and too

dissimilar to warrant their admission under the doctrine of chances. In this case,

similarity and frequency interact to prevent the State from successfully admitting

improper propensity evidence, exactly as the Rules of Evidence and the Utah courts

intended.

It is true that there is sufficient independence of the accusers to evidence

independence. There is no evidence of collusion amongst the various accusers.

However, meeting a single one of the four foundational requirements falls far short of

being enough to admit the offered evidence under the doctrine of chances. In order to

be admissible under the doctrine of chances the offered evidence must satisfy all of the

four foundational requirements.

The prior allegations being offered by the State in this case are not admissible for

a proper purpose, and this otherwise improper evidence is not rescued by appeal to the

doctrine of chances. Under the analysis used to determine if evidence satisfies the

foundational requirements under the doctrine of chances, the evidence offered by the

State here fails. The proposed evidence is not sufficiently material, nor is it similar and

frequent enough to justify applying the doctrine of chances to allow its admission in this

case. The primary purpose of the prior allegations is to present character evidence

disguised as 404(b) evidence and meant to support an impermissible inference that the

Defendant did it before, so he must have done it in this case. Such character evidence

is inadmissible under Rule 404(b) of the Utah Rules of Evidence and the doctrine of

chances, and thus the State’s proposed evidence must be excluded.

9
0122
 III. EVEN IF THE STATE CAN SUCCESSFULLY SHOW THE EVIDENCE
OF PRIOR ALLEGATIONS SERVES A LEGITIMATE NON-
CHARACTER PURPOSE, IT SHOULD BE EXCLUDED BECAUSE IT IS
SIGNIFICANTLY MORE PREJUDICIAL THAN PROBATIVE AND IS
THEREFORE INADMISSIBLE UNDER UTAH RULE OF EVIDENCE 403.

Even if the State prevails in its argument that the evidence at issue here is being

offered for one of the legitimate purposes set forth in Rule 404(b) it should still be

excluded. This is because, under Rule 403, otherwise admissible evidence may still be

excluded if the “probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury…” Utah R. Evid. 403.

Here, admitting evidence of prior allegations against Mr. Richins would be

unfairly prejudicial under the rule. “Evidence is unfairly prejudicial if it has a tendency to

influence the outcome of the trial by improper means…or otherwise causes a jury to

base its decision on something other than the established propositions of the case.”

State v. Toki, 2011 UT App 293, ¶ 44, 263 P.3d 481, 491. (Emphasis added). (Citing

State v. Burk, 839 P.2d 880, 883 (Utah Ct.App.1992)).

In this case, admitting the offered evidence of prior allegations would be unfairly

prejudicial. The jury’s duty in this case is simply to determine whether Mr. Richins is

guilty beyond a reasonable doubt of the charge of lewdness in this case only. The jury

should not make such a determination by means of considering both proven and

unsubstantiated allegations that were made at least three and nine years prior to the

one at issue in this case. In fact, the majority of the incidents the State wishes to

introduce evidence from occurred almost ten years previously. Admission of this

evidence invites and entices the jury to punish Mr. Richins for behavior, alleged or

admitted to, that is simply outside the scope of this case. In other words, the jury may

10
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base “its decision on something other than the established propositions of the case.”

Id.

The introduction of the prior alleged offenses invites the finder of fact to

improperly and prejudicially judge guilt in the current case based on the aggregation of

previous allegations with those at issue here. It runs counter to the interests of justice

and fairness to allow the State to create a substantial risk of unfair prejudice through the

admission of evidence that has limited or absent permissible probative value but runs

the very real risk of being highly and unfairly prejudicial.

In this case the risk of unfair prejudice created by inviting the jury to decide Mr.

Richins’s guilt based on prior bad acts far outweighs any possible probative value the

evidence might have. On the other hand, exclusion of this evidence will result in a fair

trial that allows the jury to appropriately determine whether the State has met its burden

proving that Mr. Richins committed the offenses for which he has been charged in this

case. In addition, it will prevent the State from implying, or the jury from inferring, guilt

based upon inadmissible character evidence.

CONCLUSION

Because the evidence of prior bad acts is impermissible character evidence

under Rule 404(b), because the offered evidence does not satisfy the requirements to

be admissible under the doctrine of chances, and because under Rule 403 the

proposed evidence is substantially more prejudicial than probative, the Defendant

requests that this Court exclude all the evidence proposed by the State in their Motion in

Limine.

11
0124
DATED this 26th day of March, 2018.

BUGDEN & ISAACSON, L.L.C.

By: /s/ Walter F. Bugden, Jr. _________

WALTER F. BUGDEN JR.
Attorneys for Defendant

12
0125
 CERTIFICATE OF SERVICE

I hereby certify that on the 26th day of March, 2018, I electronically filed the
foregoing document with the Clerk of the Court by using the ECF system which will
send notice of electronic filing to the following, or if recipient is not registered with ECF,
notice shall be sent via alternative method as indicated:

Salt Lake County Attorney’s Office _X_ U.S. MAIL or

West Jordan Department _X_ EMAIL:
8080 South Redwood Road, #1100
West Jordan, UT 84088

/s/ Sindra McBride__________

Paralegal

13
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ADDENDUM E
 THIRD JUDICIAL DISTRICT COURT
FOR SALT LAKE COUNTY, STATE OF UTAH
____________________________________
)
STATE OF UTAH, )
)
)
PLAINTIFF, )
) Case No. 171403503
VS. )
) Transcript of:
RONALD JAY RICHINS, )
) 404(b) MOTION
)
DEFENDANT. )
____________________________________)

BEFORE THE HONORABLE KATIE BERNARDS-GOODMAN

WEST JORDAN COURTHOUSE

8080 SOUTH REDWOOD ROAD
WEST JORDAN, UTAH 84088

JUNE 4, 2018

TRANSCRIBED BY: Susan S. Sprouse, RPR, CSR

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1 A P P E A R A N C E S
2 FOR THE PLAINTIFF:
3 Thaddeus J. May
SALT LAKE COUNTY DISTRICT ATTORNEY'S OFFICE
4 8080 South Redwood Road
West Jordan, Utah 84088
5
FOR THE DEFENDANT:
6
Walter F. Bugden, Jr.
7 BUGDEN & ISAACSON
445 East 200 South, #150
8 Salt Lake City 84111
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

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1 June 4, 2018
2 P R O C E E D I N G S
3 * * *
4 THE COURT: -- versus Ronald Richins.
5 MR. BUGDEN: So, Your Honor, I'd like to have the
6 exclusionary rule invoked, please.
7 THE COURT: Okay. If there are any witnesses present
8 on the Ronald Richins case, we'll need them to wait outside and
9 not discuss their testimony during this hearing.
10 MR. BUGDEN: So, Judge, as a preliminary matter, the
11 State has a number of witnesses, police officers and
12 eyewitnesses, I guess --
13 THE COURT: Uh-huh.
14 MR. BUGDEN: -- alleged victims. And I'm just
15 wondering if as a preliminary matter, if we should have an
16 argument as to whether or not the State can state a proper
17 404(b) purpose. And if that's not helpful, then we can call
18 all the witnesses and then you can make your -- you can listen
19 to argument at that point. I'm not trying to make it more
20 complicated than it needs to be. I'm just wondering if on some
21 level if having Mr. May and I argue what we think is the law,
22 if that would be helpful, but maybe not. I don't know.
23 THE COURT: Sure.
24 MR. MAY: And, Your Honor, I have no opposition to
25 that. I think all of the witnesses as I've spoken on the phone

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1 and today, I think that everything they say is predictable. I
2 don't believe that there would be any surprises from an
3 evidentiary standpoint, and obviously Mr. Bugden has a right to
4 cross-examine these people if they are to testify today, but I
5 don't believe he has huge -- I don't think he's saying that the
6 State is alleging facts incorrect -- at least -- they stand as
7 allegation, but I don't think he's taking issue with the facts.
8 I think the law is the more --
9 THE COURT: The issue here. Sure.
10 MR. BUGDEN: No, it may be that there's some lines of
11 distinction that you'll see as we talk about things and maybe
12 you'll want to hear the witnesses. But I think we could begin
13 by having the argument.
14 THE COURT: Sure. Let's go ahead.
15 MR. BUGDEN: Do you want me to go on objecting.
16 MR. MAY: Sure. We can have Mr. Bugden begin.
17 That's fine.
18 MR. BUGDEN: So -- let's see here. Now, as I -- when
19 I get to the specifics of witnesses that are here today, I may
20 ask Mr. May to help me to be correct --
21 THE COURT: Okay.
22 MR. BUGDEN: -- in what I'm saying to you, because I
23 may not have them all memorized. But as I've said in my
24 memorandum, my position is, for starters, no matter what
25 purpose that the State suggests, no matter what purpose that

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1 might fit with 404(b) and the language of 404(b), at the end of
2 the day, this is going to be character evidence. At the end of
3 the day, this is going to be he did it before -- if you admit
4 it, to this jury it's going to be he did it before, he did it
5 again. He did it before, he did it again. And it's going to
6 be so prejudicial, which I will get to the 403.
7 But from the legal analysis, our view, Your Honor, my
8 view is that we are not arguing the mistake, accident or lack
9 of opportunity or incorrect identification. Some of what the
10 State argues is that it's an incorrect identification. But
11 incorrect identification is the wrong guy, you know, that by
12 having these other 404(b) witnesses, it shows that it's this
13 person versus 10 other people or, you know, three other people.
14 That's -- that's clearly not the issue here.
15 With respect to the actual conduct, this charge, my
16 client is a nine -- you did the prelim, but I'll just remind
17 you he's been the neighbor for nine years of these -- of the
18 younger lady, the young girl, and the mother. So they clearly
19 know who Ronald Richins is, Ronald Richins is.
20 THE COURT: Oh, I remember. With the lot in between
21 them?
22 MR. BUGDEN: Yeah. So they clearly know who Ronald
23 Richins is. He's the guy who has lived there nine years and
24 that they haven't talked to him once -- or at least the
25 daughter has never spoken to him for nine years because they

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1 knew he was on the sex offender registry and a weirdo.
2 So this is not -- this is a mistaken ID in the sense
3 is it Mr. A, B, C, D, oh, we're going to allow these other
4 people to testify that it was Mr. A with respect -- because I'm
5 not arguing they've got the wrong guy. That's not the --
6 that's not the argument. Nor am I arguing, Judge, and so I can
7 use hypotheticals that I'm not trying to be colorful, but, you
8 know, at a cocktail party I could imagine or any kind of a
9 party or something, you're in close quarters and I turn around
10 and my hand brushes someone's breast. And so I -- I've touched
11 someone's private area. Or when -- when I'm squeezing through
12 some closed area, I touch someone's butt. And I argue, I, the
13 defendant, argue that was on accident. I touched the person.
14 I happened to swing around and I wasn't doing this. That was
15 by accident. I didn't do it. My intent was not to touch the
16 breast. My intent was not to pat the butt or anything like
17 that. It was -- that was an accident.
18 404(b) would then be admissible to show it was not an
19 accident. To say it happened one -- one, two, three times and
20 that could not have been an accident. That was not an
21 accident. So that makes sense to me.
22 So, you know, 404(b) talks about an accident, a
23 mistake, which I think are similar, a lack of opportunity.
24 Well, in our case, there's no question Mr. Richins was in the
25 yard, his own yard, his side yard. But we are not arguing,

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1 which is the real purpose that Mr. May -- the articulated
2 purpose, the articulated purpose is that this is to show lack
3 of accident. But we're not going to argue that he exposed
4 himself to KM -- those are the initials -- but to the daughter
5 and the mother by accident. We're not going to say that he was
6 taking a leak and they happen to see him. We're going to say
7 that they are wrong. That he didn't expose himself. You see
8 what I'm saying? That's the defendant's argument.
9 And, and I want to say, the other possible 404(b) is
10 that modus operandi, okay, or plan. You know, like, the cat
11 burglar or something that's unique about a burglary, something
12 that is distinctive about a burglary, something that says it's
13 almost like a footprint or, you know, a fingerprint because
14 it's so unique that the guy comes in through the doggy door --
15 I don't know, I'm making it up.
16 But with all due respect, again speaking graphically,
17 I mean, if you're exposing yourself, you're going to unzip
18 yourself. It's not like that's a unique character. If you are
19 going to expose yourself, you're going to unzip yourself, and
20 if you are going to masturbate, your hand is going to be down
21 there. It's not like there's a lot of ways you can do that, a
22 lot of different ways you can wag your weeny, expose yourself
23 or masturbate. It's not like there's great variety there.
24 So I've said before, and what I think the huge
25 problem is, anytime you admit 404(b) evidence, there's always

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1 going to be the problem that what -- the State is never going
2 to admit this, but what they are really trying to do is to say
3 he did it before, he must have done it again.
4 And in the Verde case, the Court specifically says,
5 "The Court should carefully consider whether it is genuinely
6 being offered for a proper noncharacter purpose or whether it
7 might actually be aimed at sustaining an improper inference of
8 action in conformity with that bad character." They did it
9 before, they must have done it again.
10 And, you know, respectfully notwithstanding how
11 clever you might be, or Mr. May, there just isn't an
12 instruction that you can give to this jury that is not going
13 to -- that's going to deter them from saying he did it before,
14 he must have done it this time too. He did it three times, he
15 did it four times. The State wants to introduce four episodes.
16 How are they not going to say, well, he's a habitual, you know,
17 again character, habitual lewdness guy?
18 I've cited some cases where 404(b) came in on the
19 issue of absence and mistake. I won't repeat those. I'm sure
20 you've read it. Your clerk told us that you had the briefs of
21 parties.
22 So let's talk about the doctrine of chances, which I
23 don't really understand perfectly, but, you know, according to
24 this, according to their day and the doctrine of chances, there
25 are four issues that you should consider: The materiality, the

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1 similarity, the independence and the frequency.
2 So on the materiality, I don't think it's material,
3 is the first thing, because I'm saying the fundamental reason
4 that the State is offering it is not to show lack of accident,
5 is not to show mistake. Because I -- you -- we're not going to
6 argue he happened to be urinating and did it in a way that
7 someone could see him. That's not -- we're not going to say
8 that. If we said that, it would be different.
9 Now, this is where I need your help a little bit,
10 Mr. May. So Christina Rodriguez is one you've talked about you
11 want to introduce, and she's which case? Snowbird? She's on
12 the witness Snowbird?
13 MR. MAY: 2013, yeah. She's the most recent.
14 MR. BUGDEN: Okay. So on this one, and Mr. May will
15 get up and clarify for you but -- so this is one of the
16 404(b)s. This happened in 2013. It's Cottonwood Heights.
17 Mr. -- Detective Shausteader or police officer Shausteader this
18 year, and she says that she was at a bus stop four years ago or
19 in 2013, five years ago, and saw the defendant across the
20 street and he exposed himself.
21 I don't think it satisfies the materiality prong
22 because it's not rebutting accident. It's not doing any of the
23 legitimate 404(b) purposes.
24 Then Mr. May also wants to introduce a school bus
25 incident that happened nearly 10 years ago. According to the

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1 date of our crime, it would almost be 10 years before that.
2 And he has -- I think he only intends to call one of the people
3 on the school bus. I said, you know, if this happened in front
4 of Shea Stadium, you're going to call 50,000 people. I think
5 he only wants to call one person from the school bus. But the
6 theory there -- the fact pattern there is that my client was in
7 a truck that was alongside next to a school bus, people moving,
8 driving, and the school students could look out their window
9 and see that supposedly Mr. Richins had exposed himself.
10 That seems in terms of similarity, it doesn't seem
11 similar to a situation where he's in his own yard standing
12 there versus being in a moving vehicle on the road. It doesn't
13 fit pattern. It's different. It's not similar. So I don't
14 think that that should be admissible.
15 Then another incident involves someone who is on
16 horseback in Dimple Dell and people are -- two people were on
17 horseback. One of them, I guess, would be called to say that
18 they saw Mr. Richins. The police officer's here. I think his
19 name is Abbot -- or Webb, I'm sorry. So one of the ladies who
20 is -- I don't know if they are here or not, but they have an
21 affidavit of her to say that she thought it was Richins and
22 picked him out and said he was exposing himself.
23 Then we have a police officer that's here who my
24 client said in that instance, that particular instance, he told
25 the officer, well, I might have -- I don't think I did that,

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1 but I might have been taking a leak and maybe they saw that.
2 So that would be an accident situation. But that's not what we
3 are claiming in our case. That's another one that is almost 11
4 years old, something that happened 11 years ago or 10 years
5 ago.
6 And then I don't know if this person is here, but
7 then the last one involves Cottonwood Mall. Again, a car
8 situation where someone was at the mall, got out of their car,
9 saw the defendant before she went inside the mall. And then
10 when she came back saw the defendant again in a car parked and
11 he was supposedly exposing himself or masturbating.
12 Again, I don't think that -- that's almost 10 years
13 ago also. And I don't know if these -- I know that the first
14 instance I told you about with Snowbird that that became a
15 conviction, that there was a conviction. I don't know which of
16 the others -- I don't think -- I don't know -- Mr. May can tell
17 you. I don't know that fact makes a difference to you.
18 But back to the Cottonwood Mall that happened again
19 almost 10 years ago or about 10 years ago, I don't think that
20 that's similar. Being in a car is a completely different ammo
21 or pattern. And again -- well, I just don't think it satisfies
22 the similarity doctrine.
23 In discussing the different prongs, there's a recent
24 Court of Appeals case called Lopez, and it's cited in our
25 memorandum, similarity and frequency interact with each other

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1 to become a safeguard against the doctrine of chances becoming
2 a work around for the admission of otherwise improperly --
3 improper propensity evidence. That's a recent case dealing
4 with this doctrine of chances.
5 And then finally, Rule 403 always applies and is part
6 of the Verde analysis too. And the probative value, of course,
7 must substantially outweigh the prejudice. Here we have
8 incredible prejudice, I think. And I think it's confusing and
9 misleading to the jury. I mean, I guess it's going to be four
10 separate trials, or five, if you were to admit this. You know,
11 we're going to -- I'm going to be able to cross-examine these
12 people both today. I guess I get a whack at them today and
13 then at the trial. When the case is really -- this is -- this
14 is a one-day -- should be a one-day trial if it was restricted
15 to the events involving the neighbor.
16 But if we're -- if you admit the 404(b) stuff, I
17 think it's incredibly prejudicial. I don't think it's
18 probative. I think it's confusing, and it's going to be all
19 these separate little trials.
20 Here what we're really asking the jury to do is to
21 decide if on the one day, whatever it is that we're charging in
22 this case, about a year ago, if Mr. Richins exposed himself at
23 a private residence to his neighbors, at a private residence,
24 not in a mall, not on a horseback trail but at a private
25 residence. A majority of the incidents that the States to

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1 introduce are more than almost 10 years old. They are more
2 than 10 years old as of today's date.
3 I think introducing these certainly invites the jury
4 to base their decision on the number of episodes, not on the
5 basis of, well, did he do it on this one day. The bottom line
6 is it is the wrong purpose, and it would be unbelievably
7 prejudicial. And there's no instruction. What instruction can
8 you give them?
9 THE COURT: You know, the noncharacter purpose, which
10 seems to be important, obviously --
11 MR. BUGDEN: Yes, ma'am.
12 THE COURT: -- that the State has to have, you're --
13 with him saying I wasn't exposing myself is somehow being
14 different than I was taking a leak, as you put it, or
15 scratching myself or whatever, seems to be a distinction
16 without a difference to me. It's -- it's the same as saying
17 that the --
18 MR. BUGDEN: I didn't do it. It's not -- it
19 happened. It's not --
20 THE COURT: Well, that's it. I didn't do it means
21 she's mistaken in what she saw, isn't it? Doesn't it? She
22 didn't see what she thought she saw. She was mistaken in what
23 she saw.
24 MR. BUGDEN: Well, I agree that's right, but that's
25 different than the intent that I didn't intend to touch the

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1 breast. I didn't intend to expose myself. I didn't intend --
2 THE COURT: Absence of mistake or lack of accident, I
3 think is different than intent. Okay.
4 MR. BUGDEN: Well, that's -- I think 404(b) is
5 intended to say -- to rebut the idea that the defendant says I
6 accidentally touched the boob, I accidentally touched the
7 breast. I accidentally did this. I didn't do any of this on
8 purpose. That's different from saying it didn't happen.
9 THE COURT: Okay.
10 MR. BUGDEN: 404(b) doesn't say this is admissible to
11 show mistake in identification. That's not what 404(b) allows.
12 But even though I appreciate you asking me that question, how
13 is it not prejudicial? And how are they not different?
14 MR. MAY: Thank you, Counsel.
15 Your Honor, I'll address these arguments in the
16 following order. First, I want to talk briefly to this issue
17 that the Court just raised. Defense counsel without any
18 statutory authority or appellate guidance really makes a bold
19 claim which is, quote, absence of mistake under 404(b) does not
20 refer to a defense claim that a witness or accuser is mistaken,
21 but to a claim that, though, the defendant may have done what
22 he was accused of, he did so mistakenly or by accident.
23 That's what Mr. Bugden just explained to Your Honor,
24 but that's also something that came simply from whole cloth.
25 There's simply no appellate guidance on that issue.

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1 As a matter of fact, counsel in their own brief cite
2 a case that is a very powerful argument against it. They refer
3 to State v. Norcutt, 139 P3d 1066. Quote, Norcutt's defense at
4 trial was that he was not the owner of the equipment but was
5 placed in his bus by a third party. That's the fact statement
6 in State v. Norcutt. It raises an interesting question, Your
7 Honor, who made the mistake in State v. Norcutt? It wasn't the
8 defendant. It was the police, who mistakenly thought that this
9 meth lab equipment belonged to Norcutt.
10 If you apply the facts of Norcutt before the case
11 right now, the argument that Mr. Bugden, the Defense counsel is
12 going to make is that KM was mistaken because her mother placed
13 in her mind irrational fear of Mr. Richins as a pervert or a
14 sex offender, and that therefore, she had this vision of
15 something that didn't happen. So that is how it's a mistake,
16 Your Honor. That's why we argued under that prong. And we,
17 with the Court, agree that this is very different than intent
18 argument.
19 The question is who made the mistake. And in Norcutt
20 it was the police. In this case, the mistake was made by KM.
21 We think it's applicable for that reasoning.
22 But even if Your Honor were to be persuaded by this
23 novel reading of mistake or absence of mistake to the recent
24 case of State v. Balfour, 2018 Ut App 79, which I think just
25 came out a few weeks ago, also opens a different avenue for the

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1 State to use. And we only argue this in rebuttal. This wasn't
2 part of our initial brief. But I read the case after I read
3 Mr. Bugden's brief.
4 In Balfour the court notes, quote, rebutting a
5 fabrication defense does not appear in a list of permissible
6 noncharacter purposes set out in 404(b).
7 But as we have said before that list is not, quote,
8 exhaustive. In any event our Supreme Court has expressly
9 stated that under certain circumstances prior bad acts can
10 properly be used to rebut a charge of fabrication.
11 Well, that's essentially what this is also. If it's
12 not a mistake, then the claim by Defense is that our, our
13 witness's fabricating and she's not telling the truth about
14 what she saw. Well, they are not -- that fabrication is a
15 result of innocent bias because of the thoughts planted by her
16 mother or mistake, as we argued in our brief, it's clearly a
17 permissible 404(b) exception whether or not it's on the list.
18 So I think under both of those theories this evidence would
19 qualify.
20 Now, I want to address this doctrine of chances
21 argument. Defense counsel seemed to argue that this was not
22 material. Obviously, if the Court accepts the State's theory
23 that absence of mistake is what we're talking about, and the
24 mistake belongs to KM, this is the issue in the trial. It
25 couldn't be more material.

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1 The trial will be about whether or not Mr. Richins
2 exposed himself to KM. There can't be a more material issue as
3 to whether or not he did so than the fact that he has done so
4 in the past and that therefore KM is not mistaken that,
5 therefore, her report is not a fabrication. Both of which are
6 the ultimate issues at trial. So it couldn't be more material.
7 Similarity, this is an interesting issue. The way
8 you just heard it argued by Defense counsel, you might think
9 that under Verde and the doctrine of chances, the progeny of
10 cases that have come from it, that this would be a modus
11 operandi type similarity that the appellate courts are asking
12 for. But that's simply not the case at all.
13 Even -- what the courts call for actually is, quote,
14 rough similarity. And here in the State -- State v. Lopez case
15 that Defense counsel cites, what you had there was you had one
16 man who recently was -- his case was overturned on a homicide.
17 And one of the issues that the Appellate Court had was there
18 was a prior incident where that man had held up a gun in a
19 fight in the home. So he brandished a weapon essentially. And
20 the facts of the murder were that he held a gun to his wife's
21 head and pulled the trigger.
22 Now in that prior incident, he never put a gun to
23 anyone's head, as far as I could tell from reading the
24 appellate record. So what you have there are two great
25 disparate crimes. They are not even the same action.

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1 I think that case is easily distinguishable from the
2 facts before the Court. We're talking about the exact same
3 crime here. Whether it happened on a tree, in a house,
4 wherever this crime happened, the defendant Richins, was doing
5 the exact same thing. He was exposing himself. That is well,
6 well beyond the rough similarity prong that the appellate
7 lights have asked for this court to analyze. It's the exact
8 same crime.
9 So these facts are in no way in contradiction of
10 Lopez. As a matter of fact, the Lopez decision, I think,
11 provides support for the admission of this evidence. Whether
12 it happened on a public street or whether it happened in his
13 vehicle or whether it happened at a park, those are all further
14 evidence of the fact that Mr. Richins does this all the time,
15 meaning that this is something he has done. This is something
16 when KM gets up and says this is what I saw, and then she's
17 attacked to say, now you just really thought he was a sex
18 offender and it was planted in your head, then that mistake she
19 made is now being supported by the fact this is not -- she's
20 not the only person that's seen it.
21 And I think the doctrine of chances -- what we're
22 getting at here, and Mr. -- we won't even argue independence
23 because Mr. Bugden did not argue it either, but then we get to
24 the final prong, what's frequency. And when I talk about all
25 these prongs, I want to talk about this doctrine as a

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1 theoretical concept. But Mr. Bugden's brief, Defense counsel's
2 brief seems to substitute the word "recency" for "frequency".
3 The doctrine of chances does not demand that these be
4 recent allegations. It's almost like we're hearing a Shickles
5 type analysis where there is that we used to have the language
6 that it had to have happened recently to be applicable. And
7 that doctrine, by the way, was recently viscerated by the court
8 as well.
9 But this is not about recency. It's about frequency.
10 And the relevant question is, quote, more frequently than the
11 typical person endures such losses accidentally.
12 Well, one would hope that the typical man is never
13 actually accused of masturbating in front of others. And so
14 when the State comes forward with four prior allegations, that
15 is clearly meeting the frequency prong. Frankly, one prior
16 allegation would meet the frequency prong because it's how
17 often has someone been accused of this crime. That's all that
18 we're asking. Not what year or how remote or how distant. So
19 we've satisfied that prong as well.
20 The doctrine of chances exists to allow for just such
21 unlikeliness; right? What are the odds is essentially the way
22 the Verde court explains this doctrine and whether one likes it
23 or not, that's certainly the way it has been formulated.
24 And finally, I want to address this 404(b) issue
25 because -- I'm sorry, not 404(b), but this 403 argument the

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1 Defense counsel makes. The State would be lying if we told you
2 this was not prejudicial evidence. It is. I can't hide from
3 that fact. That being said, I would like the Court to think
4 just a moment about the way in which Defense counsel has chosen
5 to position this case.
6 So the evidence at trial will be that Mr. Richins, a
7 sex offender, because of that fact, KM was poisoned and saw
8 things that weren't there. So we find ourselves in a very
9 different context than we might in your typical case, where
10 there was no error or suspicion of sexual misconduct.
11 Mr. Bugden's very case theory relies upon the fact
12 that his client is a sex offender. Learning why is almost in
13 some ways is better for Mr. Richins than otherwise. Because
14 what you are seeing here is in a typical analysis of prior
15 404(b) incidents, questions the Court might ask are: Are these
16 more serious than prior allegations? Are we learning about
17 more horrific facts? It would be, you know, a rape being
18 admitted in a case that involved simple over the clothing
19 touching, something like that, where hey, the jury is learning
20 a lot worse thing about this client.
21 Well, that's not what Your Honor has. Your Honor is
22 actually seeing the exact same crime being committed, and
23 thereby gets an answer to this question: Why is Mr. Richins a
24 sex offender, and that answer is not because he's a life active
25 predator against children, he's not touching children, he's not

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0305
1 doing things that are far worse that the jury's imagination
2 might take them.
3 So in that sense the prejudice, I think, is muted by
4 the defense that's being offered here. And additionally the
5 crimes as was mentioned just a moment ago are the same exact
6 crimes. Are they probative? Unquestionably probative. They
7 are substantially probative. And their probative value I would
8 argue convincing outweighs their prejudicial effect, because
9 the State's case absent these prior witnesses is based on the
10 testimony of KM, a 17-year-old girl, who defense counsel will
11 portray as one who is confused and nervous and is aware that
12 she has a quote/unquote, I think it was their words, creepy
13 neighbor and, therefore, had this vision that didn't ever
14 occur.
15 So whether it be under the 404(b) claim of absence of
16 mistake or whether it be under the 404(b) claim of fabrication,
17 this evidence is admissible. And under a 403 analysis, Your
18 Honor we're simply not to a level where the prejudicial effect
19 is going to substantially outweigh this, the probative value,
20 and that's why we've asked for it to be admitted.
21 THE COURT: Okay. It looks like maybe we should take
22 a few of the other matters for a minute. So if we could have
23 other matters that are ready.
24 (Other matters on the calendar.)
25 THE COURT: We're back to our 404(b) motion. Do you

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0306
1 want to call witnesses or you want to just --
2 MR. BUGDEN: Well, do you want to make any sort of
3 preliminary ruling, and then I'll decide if I'm going to call
4 people?
5 THE COURT: Yeah. I think there is a proper
6 noncharacter purpose that by saying I didn't do it, he's
7 claiming the victim's either fabricating or mistaken and,
8 therefore, it's a proper noncharacter purpose. I do think it's
9 more probative than prejudicial.
10 MR. BUGDEN: And then is it your plan, or would it be
11 your plan then, Judge, to let all four of these people testify?
12 THE COURT: Yes. It's similar. It's the same
13 behavior. There's independence among them. And four times in
14 10 years is a frequency that would tend to make me think it's
15 more likely than not that this occurred.
16 Again, it's -- it is prejudicial. There's no getting
17 around that. But it's not more serious or horrific than what
18 is alleged to have occurred in this case.
19 MR. BUGDEN: Well, would you -- well, let me ask
20 Mr. May something.
21 MR. MAY: Sure.
22 (Confers with counsel)
23 MR. BUGDEN: And does it make any difference to you
24 that there aren't any convictions in the four cases? There are
25 two convictions and two times there's not convictions.

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1 THE COURT: It doesn't make a difference to me that
2 there are convictions that would make a difference to me the --
3 what's the word I want to use -- the level of evidence that --
4 the strength of the evidence in each circumstance would matter
5 to me. Well, definitely the conviction is a conviction.
6 MR. MAY: Yeah. Correct. And that was a trial.
7 THE COURT: And things he has admitted, plea in
8 abeyances to me are like a conviction. He admitted he did it.
9 So that's pretty solid evidence to me.
10 MR. MAY: Yeah, I don't believe they are plea in
11 abeyances. I think, Your Honor, what -- the reason the State
12 proceeded with witnesses, live witnesses in the first place in
13 a 404(b) setting such as this is because of the morphos nature
14 of a lewdness charge. To say that someone is convicted of
15 lewdness could mean a million things because of the way it's
16 written.
17 THE COURT: Sure.
18 MR. MAY: So if we came up with a stipulation, I'm
19 not opposed to it. I don't know we need to have all
20 these women --
21 MR. BUGDEN: Let me talk to him about that.
22 MR. MAY: Yeah, maybe we can talk for a second and
23 see if we can come up with such a stipulation.
24 (Recess taken by the court.)
25 THE COURT: If we're going to go ahead with the

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1 hearing, I need a few minutes. I've got --
2 MR. BUGDEN: No, we're not. So based on your ruling,
3 we're heading into a stipulation and he's going to read it into
4 the record.
5 THE COURT: Okay.
6 MR. MAY: Well, I just added one sentence.
7 (Conferring with counsel)
8 MR. MAY: Your Honor, I think the stipulation should
9 cover -- and I'm doing this, Your Honor, out of abundance of
10 caution. I think it's actually a less prejudicial way than
11 putting on live testimony. In a way I could be undercutting my
12 own probative power; nonetheless, I think that it jives with
13 the purposes of doctrine of chances and I think it allows for
14 the proper noncharacter inference to be raised.
15 THE COURT: Okay.
16 MR. MAY: The stipulation that we would have read to
17 the jury would go like this, and Mr. Bugden, of course, can
18 correct me if he hears something amiss. I did not sleep well
19 last night.
20 "On four separate occasions from 2017 [sic] to 2013,
21 women indicated that Mr. Richins had exposed and touched his
22 penis in their presence. None of these women knew Mr. Richins
23 or welcomed his conduct. Two of these incidents resulted in
24 convictions."
25 THE COURT: And then you won't be putting those

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1 witnesses on at trial?
2 MR. MAY: Correct. That --
3 THE COURT: Okay.
4 MR. BUGDEN: So at the end of the case, he'll put
5 that on.
6 THE COURT: All right. Since we're calling this my
7 ruling, you know, I gave you an idea of what I would rule.
8 Let's -- can you do findings so that it's in the record in case
9 there's an appeal?
10 MR. MAY: I can make findings -- so based on Your
11 Honor's ruling, I'll make findings -- so I'll make findings as
12 if Your Honor is allowing the State to -- because this is a
13 stipulation the parties have entered into. I think it might --
14 correct me if I'm wrong in my findings or thoughts, Your Honor
15 would have allowed the testimony of these women at trial.
16 THE COURT: I would. But on the little bit that I
17 said and based on the briefs, I am more convinced by the
18 State's brief that there's the noncharacter purpose, and it's
19 more probative than prejudicial, but I'll let you put the facts
20 in the findings.
21 MR. MAY: That's fine.
22 MR. BUGDEN: And then is there any reason for us to
23 come next week for a pretrial? Don't we now know that we're
24 going to go?
25 THE COURT: You know you are a go. Richins. Let me

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1 look at -- we have two matters set on that date. So if both of
2 them go, I'll try to get a senior judge. I don't know if the
3 other one is in custody.
4 MR. BUGDEN: Don't you want us? Aren't we your
5 favorite?
6 MR. MAY: And your Honor, just so I'm making these
7 findings, I don't want to put words in your mouth, is the Court
8 allowing for the admission under either a point of fabrication
9 or an absence of mistake.
10 THE COURT: Mistake.
11 MR. MAY: So both theories or one or the other?
12 THE COURT: Both.
13 MR. MAY: Okay.
14 THE COURT: Because we don't know.
15 MR. BUGDEN: Sure.
16 THE COURT: And Defense doesn't have to reveal until
17 trial what their strategy is.
18 MR. MAY: Okay.
19 THE COURT: I'm assuming it's going to be one or the
20 other.
21 MR. MAY: I don't want to write more than you have
22 ruled. Okay. Thank you, Your Honor.
23 MR. BUGDEN: And Tad, will you send that over, just
24 what we agreed to?
25 MR. MAY: Yeah, I'll give you that.

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1 THE CLERK: The other old is an old one.
2 THE COURT: If we have to and they are both going,
3 we'll try to find a senior judge. Someone will probably have
4 to go downtown to find a courtroom and enough jurors. And
5 enough bailiffs and clerks and everything else.
6 THE CLERK: So we're going to [inaudible]
7 THE COURT: Sure. And put down that they are a go.
8 MR. MAY: I put down knew Mr. Richins or each other.
9 Is that okay?
10 MR. BUGDEN: Sure. Sure.
11 MR. MAY: Just added one word to our stipulation.
12 THE COURT: So we have trial obviously 6-13.
13 MR. MAY: So I can release my witnesses now?
14 MR. BUGDEN: Yes, you can.
15 MR. MAY: All right. And, Your Honor, we should have
16 you -- hopefully we can get you jury instructions by the end of
17 the week then.
18 THE COURT: All right.
19 MR. MAY: Thank you, Your Honor.
20 THE COURT: And we're still scheduled for two days on
21 that.
22 MR. MAY: It might take two, but hopefully not. You
23 never know.
24 THE COURT: Because I have two other trials.
25 MR. MAY: I know that Mr. Bugden has enlisted the

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1 assistance of Ms. Isaacson.
2 MR. BUGDEN: Yeah, and we know how long-winded she
3 is.
4 MR. MAY: Yeah, she's just always churning.
5 (Proceedings were concluded.)
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
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ADDENDUM F
 The Order of the Court is stated below:
Dated: June 07, 2018 /s/ KATIE BERNARDS-
GOODMAN
02:00:48 PM District Court Judge

SIM GILL
District Attorney for Salt Lake County
THADDEUS JAMES MAY 11317
Deputy District Attorney
8090 S 1825 W
West Jordan, UT 84088
Telephone: (801) 363-7900
________________________________________________________________________

IN THE THIRD JUDICIAL DISTRICT COURT, SALT LAKE DEPARTMENT

IN AND FOR SALT LAKE COUNTY, STATE OF UTAH

STATE OF UTAH, STIPULATED FINDINGS OF FACT AND

Plaintiff, CONCLUSIONS OF LAW

-v-
Case No. 171403503
RONALD RICHINS,
Defendant.
JUDGE KATHERINE
BERNARDS-GOODMAN

PROCEDURAL HISTORY

On February 14, 2018 Defendant filed Motion for Disclosure of 404(b) evidence. The

State responded to this request by filing a Notice of its Intent to Rely on 404(b) evidence on

February 16, 2018. Defendant then responded to this Motion by filing an Objection to the States

Notice of Intent to Rely on 404(b) Evidence. The parties requested a hearing that occurred on

June 4th 2018. At the hearing all parties agreed that they would first argue the motion prior to the

presentation of any evidence. The court indicated after argument that it would allow the

admission of the 404(b) as proffered by the State.

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June 07, 2018 02:00 PM 1 of 5
 FINDINGS OF FACT

The State proffered evidence of the following prior bad acts:

1) On November 18 2013 C.R. was waiting for her bus when she noticed a man she later

identified as the Defendant pull down his pants, expose his penis, and began to touch

himself. The Defendant was found guilty by jury trial for Lewdness on February 4 2015.

2) On September 17 2007 several female junior high students were returning from an

intramural soccer game when they noticed a man pull alongside them in a truck. Several

students noticed that the man in the truck, later identified as the Defendant, was exposing

his penis to them as he watched them. On September 3 2009 the Defendant pled guilty to

two counts of lewdness for his conduct in this matter.

3) On July 28 2007 female victim T.W. was on horseback with a friend in Dimple Dell park

when she saw a male, later identified to be the Defendant, expose his penis, make eye

contact with her and began to masturbate. T.W. continued down the trail about 100 yards

on horseback when the Defendant reappeared and again exposed himself to T.W. and her

friend. Officers responded to the scene and found the defendant who admitted post-

Miranda to officer Leiendecker that he was masturbating in front of the two women.

4) On May 31st 2007 K.Ma. was walking back to her car after shopping in Cottonwood

Heights. on her way into the mall She noticed a man in a car who was looking at her.

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June 07, 2018 02:00 PM 2 of 5
 When she returned to her car she saw that the same man had moved his car next to hers

and was looking at her. When she got into her car she noticed the man had his windows

down and noticed his erect penis was exposed and he was masturbating. She took down

the license plate of the individual and provided a description of the individual to law

enforcement. Officer Jaroscak with the Unified Police discovered the license plate

provided by K.Ma. was registered to Ronald Richins, the Defendant. Post-Miranda,

Defendant admitted that he was at the same shopping center as the victim in his truck,

during the time when K.Ma. alleged he exposed himself. Defendant denied exposing

himself. Officer Jaroscak also noted that the defendant matched the physical description

provided by the K.Ma.

5) The State’s proffer of the evidence in this case is as follows. On May 18 2017 K.M. and

her mother were backing out of their driveway when K.M. noticed her neighbor the

Defendant looking in their direction. K.M. also observed that the Defendant’s jeans were

unbuttoned and his genitals were exposed and that the Defendant was touching his

genitals as he watched her and her mother.

CONCLUSIONS OF LAW

1) The court finds that the testimony of all of the proposed 404(b) witnesses to be

admissible for the following non-character purposes:

a. absence of mistake, to rebut the claim that K.M. was mistaken in what she

observed when she allegedly saw the Defendant masturbating.

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June 07, 2018 02:00 PM 3 of 5
 b. to rebut a claim of fabrication, to rebut the claim that K.M.’s story is the result of

fabrication. The recent case of State v. Balfour, 2018 UT App 79 note that the

listed non-character purposes laid for in Rule 404(b) are non-exhaustive and

specifically allows the admission of prior bad acts evidence to rebut a claim of

fabrication.

c. 3) under the doctrine of chances theory, the jury may hear the testimony to

consider “objective improbability of the same rare misfortune befalling one

individual over and over.” State v. Verde, 2012 UT 60 at ¶ 47 Specifically the

court finds that the State has satisfied the four part test promulgated by State v.

Verde. : (1) materiality, i.e., matter related to a bona fide issue in dispute; (2)

similarity, i.e., uncharged incident must be roughly similar to the charged crime,

but not necessarily a pattern; (3) independence, i.e., no collusion among various

accusers; and (4) frequency, i.e., an unusual loss “more frequently than the typical

person endures such losses accidentally.” Id. at ¶ 57-61. The court finds that the

proposed 404(b) evidence is material inasmuch as it address issues that are clearly

in dispute, namely what K.M. saw. Secondly the court finds that the incidents are

similar, inasmuch as they all involve the exact same conduct, that of the defendant

exposing himself to women in public. Third the court notes all of the prior

incidents involves women who have not connection to one another. Finally the

court find that the State has met the frequency requirement, inasmuch as four

allegations in seven years is clearly more accusations that a “typical” person

would endure.

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June 07, 2018 02:00 PM 4 of 5
 2) The court further finds that the proposed 404(b) evidence is relevant under Rule 402

because it tends to prove some fact, other than defendant’s propensity to commit crime,

material to the crime. Decorso, 1999 UT 57 at ¶20.

3) Finally the court finds that the proffered evidence is admissible under Rule 403. Rule

403 states that “[a]lthough relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” UTAH R. EVID. § 403. The proposed evidence is

clearly prejudicial but it would not result in “unfair prejudice” that substantially

outweighs its probative value. The court finds that because all of the prior victims are

discussing lewdness allegation and not a more serious sexual offense the prejudicial

effect of the evidence will be muted.

DATED this day of , 2018,

BY THE COURT:

KATIE BERNARDS-GOODMAN

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June 07, 2018 02:00 PM 5 of 5
 FINDINGS OF FACT

The State proffered evidence of the following prior bad acts:

1) On November 18 2013 C.R. was waiting for her bus when she noticed a man she later

identified as the Defendant pull down his pants, expose his penis, and began to touch

himself. The Defendant was found guilty by jury trial for Lewdness on February 4 2015.

2) On September 17 2007 several female junior high students were returning from an

intramural soccer game when they noticed a man pull alongside them in a truck. Several

students noticed that the man in the truck, later identified as the Defendant, was exposing

his penis to them as he watched them. On September 3 2009 the Defendant pled guilty to

two counts of lewdness for his conduct in this matter.

3) On July 28 2007 female victim T.W. was on horseback with a friend in Dimple Dell park

when she saw a male, later identified to be the Defendant, expose his penis, make eye

contact with her and began to masturbate. T.W. continued down the trail about 100 yards

on horseback when the Defendant reappeared and again exposed himself to T.W. and her

friend. Officers responded to the scene and found the defendant who admitted post-

Miranda to officer Leiendecker that he was masturbating in front of the two women.

4) On May 31st 2007 K.Ma. was walking back to her car after shopping in Cottonwood

Heights. on her way into the mall She noticed a man in a car who was looking at her.

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June 07, 2018 02:00 PM 2 of 5
 When she returned to her car she saw that the same man had moved his car next to hers

and was looking at her. When she got into her car she noticed the man had his windows

down and noticed his erect penis was exposed and he was masturbating. She took down

the license plate of the individual and provided a description of the individual to law

enforcement. Officer Jaroscak with the Unified Police discovered the license plate

provided by K.Ma. was registered to Ronald Richins, the Defendant. Post-Miranda,

Defendant admitted that he was at the same shopping center as the victim in his truck,

during the time when K.Ma. alleged he exposed himself. Defendant denied exposing

himself. Officer Jaroscak also noted that the defendant matched the physical description

provided by the K.Ma.

5) The State’s proffer of the evidence in this case is as follows. On May 18 2017 K.M. and

her mother were backing out of their driveway when K.M. noticed her neighbor the

Defendant looking in their direction. K.M. also observed that the Defendant’s jeans were

unbuttoned and his genitals were exposed and that the Defendant was touching his

genitals as he watched her and her mother.

CONCLUSIONS OF LAW

1) The court finds that the testimony of all of the proposed 404(b) witnesses to be

admissible for the following non-character purposes:

a. absence of mistake, to rebut the claim that K.M. was mistaken in what she

observed when she allegedly saw the Defendant masturbating.

0161
June 07, 2018 02:00 PM 3 of 5
 b. to rebut a claim of fabrication, to rebut the claim that K.M.’s story is the result of

fabrication. The recent case of State v. Balfour, 2018 UT App 79 note that the

listed non-character purposes laid for in Rule 404(b) are non-exhaustive and

specifically allows the admission of prior bad acts evidence to rebut a claim of

fabrication.

c. 3) under the doctrine of chances theory, the jury may hear the testimony to

consider “objective improbability of the same rare misfortune befalling one

individual over and over.” State v. Verde, 2012 UT 60 at ¶ 47 Specifically the

court finds that the State has satisfied the four part test promulgated by State v.

Verde. : (1) materiality, i.e., matter related to a bona fide issue in dispute; (2)

similarity, i.e., uncharged incident must be roughly similar to the charged crime,

but not necessarily a pattern; (3) independence, i.e., no collusion among various

accusers; and (4) frequency, i.e., an unusual loss “more frequently than the typical

person endures such losses accidentally.” Id. at ¶ 57-61. The court finds that the

proposed 404(b) evidence is material inasmuch as it address issues that are clearly

in dispute, namely what K.M. saw. Secondly the court finds that the incidents are

similar, inasmuch as they all involve the exact same conduct, that of the defendant

exposing himself to women in public. Third the court notes all of the prior

incidents involves women who have not connection to one another. Finally the

court find that the State has met the frequency requirement, inasmuch as four

allegations in seven years is clearly more accusations that a “typical” person

would endure.

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June 07, 2018 02:00 PM 4 of 5
 2) The court further finds that the proposed 404(b) evidence is relevant under Rule 402

because it tends to prove some fact, other than defendant’s propensity to commit crime,

material to the crime. Decorso, 1999 UT 57 at ¶20.

3) Finally the court finds that the proffered evidence is admissible under Rule 403. Rule

403 states that “[a]lthough relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” UTAH R. EVID. § 403. The proposed evidence is

clearly prejudicial but it would not result in “unfair prejudice” that substantially

outweighs its probative value. The court finds that because all of the prior victims are

discussing lewdness allegation and not a more serious sexual offense the prejudicial

effect of the evidence will be muted.

DATED this day of , 2018,

BY THE COURT:

KATIE BERNARDS-GOODMAN

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ADDENDUM G
1 MR. MAY: I’m sending you yours --
2 THE COURT: Your one that you agreed on?
3 MR. MAY: Correct. Yes. Mr. Bugden has an objection
4 to the way we worded some of the 404(b) instruction. And I
5 think I’ve made it -- did I send you my updated version?
6 MR. BUGDEN: I don’t know that you did, but you
7 definitely said I’ve made some changes.
8 THE COURT: Okay.
9 (Jury enters the courtroom)
10 THE COURT BAILIFF: Thank you. You may be seated.
11 THE COURT: We’re back in the presence of the jury in
12 the matter of State of Utah vs. Ronald J. Richins. It’s time
13 for opening statements. The State goes first.
14 OPENING STATEMENT
15 BY MR. MAY:
16 Thank you, Your Honor, counsel. Ladies and gentlemen
17 of the jury, thanks for coming here. It’s going to be one day,
18 which is probably something you’re happy about.
19 I want to talk to you for just a second about
20 (inaudible) and choices. First, I want to talk a little bit
21 about coincidences. This case has some interesting
22 coincidences. As I told you all in our opening, you know,
23 introducing myself, my name’s Thaddeus May. The alleged victim
24
25
in our case, her name’s
- Her mom’s So
that’s kind of a head scratcher. Kind of weird she’d have the

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1 exact same last name, spelled just like me. We’re not related.
2 And then there’s another interesting coincidence that
3 relates to me in this case. The alleged incident that we’re
4 going to be talking about today happened on May 18th, 2017. In
5 1978, on May 18th, I came into this world. So what does that
6 mean to you as a juror? What do those two facts mean? I would
7 submit that it means nothing. Absolutely nothing. Those are
8 just coincidences. Random facts. Random occurrences. They’re
9 not data from which you could learn anything. But you’ll be
10 hearing about some data in this trial, some probabilities and
11 some things like that, that actually will be firm and strong
12 and sound enough that you can make conclusions based on that
13 data.
14 I’m going to talk to you briefly about May 18, 2017,
15
16
17
what happened.
- a 15-year-old girl, is on her way to
Hillcrest High School. Fifteen-year-olds can’t drive, so their
moms drive them there.
18 The next door neighbor is the defendant Ronald
19 Richins. The morning starts off typical. Ronald’s out in his
20
21
yard, which is a common occurrence. Both
- and
tell you about that. The typical nature of May 18, 2017,
will

22
23
24
though, changes quite dramatically and quite quickly.
-
looks in Ronald’s direction and she sees as they’re backing out
or pulling away from the house, Mr. Richins' hands down in his
25 waist, the crotch area. She sees flesh where there should be

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1 jeans, and she sees that he’s moving his hands back and forth
2 in the motion that will be described by the witnesses as a
3 masturbating type motion. She immediately yells to her mom,
4 “Mom, don’t look,” and is revolted and disgusted by what she
5 sees.
6 her mother, who’s pulling out of the house
7 and driving down the street at this point, doesn’t get much of
8 a chance. She looks back and all she’ll tell you she saw was
9 Mr. Richins' hands down in that area, but no further detail
10 beyond that whatsoever. Her vantage is different, so that’s
11 all she was able to view.
12 She goes to school later that day. The authorities
13 are contacted. That’s what we’re here to talk about. My
14 burden, the State’s burden, is to give you proof beyond a
15 reasonable doubt that that’s what occurred.
16 Now, I want to talk a little bit more about
17 coincidences and conclusions. That is not the only evidence
18 you’ll receive in this case. You will hear that from the years
19 of 2007 to 2013, you’ll be instructed that four separate women
20 on four separate occasions saw the defendant, Ronald Richins,
21 expose himself in a public place. None of these women knew one
22 another. None of these women knew Mr. Richins. And none of
23 these women (inaudible).
24 This evidence is powerful because it goes far
25 beyond --

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1 MR. BUGDEN: Your Honor, I’m going to object. You
2 know, I think it’s certainly fair for him to review the
3 evidence, but this is argument. This is beyond this is what
4 the evidence will show and this a roadmap. He’s now presenting
5 argument to the jury and I think it’s improper. It certainly
6 would be proper in closing, but not in opening.
7 MR. MAY: Can I address the objection, Your Honor?
8 THE COURT: Yes.
9 MR. MAY: May we approach, perhaps?
10 THE COURT: Okay. Do you want to turn the fuzz on?
11 (Following is discussion held at sidebar.)
12 MR. MAY: Only discussing what the evidence will be.
13 MR. BUGDEN: (inaudible)
14 MR. MAY: You (inaudible) of this nature and you're
15 going to have (inaudible)
16 MR. BUGDEN: You're talking about coincidence,
17 conclusions. This is not opening, this is what the evidence is
18 going to be. This is just closing in opening.
19 MR. MAY: How do I explain my stipulation in opening
20 without giving some understanding or loss how it can be
21 received if I just hear -- stood up and say what else I hear
22 (inaudible)
23 MR. BUGDEN: That's all he gets to say.
24 MR. MAY: (inaudible) stuff I said so far.
25 THE COURT: (inaudible)

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1 MR. MAY: But (inaudible)
2 THE COURT: (inaudible)
3 MR. MAY: Important evidence.
4 MR. BUGDEN: Yeah.
5 THE COURT: (inaudible)
6 MR. MAY: That's all I said. I did not go beyond the
7 stipulation. (inaudible) I think he's alleging the argument by
8 introducing the evidence. But the evidence itself, I don't
9 know how it's going to be used except for the reason why it's
10 from the way it is because it can only be explained (inaudible)
11 as evidence of what are the odds.
12 MR. BUGDEN: Well, you can't say that. It's clearly
13 argument. It's clearly argument.
14 MR. MAY: That's -- that's how the evidence has to be
15 presented.
16 MR. BUGDEN: In closing.
17 MR. MAY: (inaudible) without that. I mean, I'm
18 curios how defense lawyer asks to (inaudible)
19 MR. BUGDEN: You'll hear this evidence.
20 THE COURT: (inaudible)
21 MR. MAY: Okay.
22 (End of sidebar discussion.)
23 MR. MAY: You will hear evidence that four separate
24 women on four separate occasions indicated that from 2007 to
25 2013, Mr. Richins exposed himself to them. Reached down,

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1 touched his penis. Because of this evidence and the evidence
2
3
4
of
-
Thank you.
, we’ll be asking you to return a guilty verdict.

OPENING STATEMENT
-
-
5 BY MS. ISAACSON:
-
6 So Mr. Richins is 49 years old, and it’s true that
7 he’s been in trouble before. The neighborhood sort of knew it.
8
9
10
K
- and her mom knew it. They’re neighbors with Mr. Richins
for ten years, basically. Most of
- life. She’s a
teenager now. AND so you’re going to hear evidence and you’re
11 going to see some photographs showing you kind of the set up
12 here.
13 So Mr. Richins lives in a home on the street. Then
14 there’s kind of a lot, I think it’s owned by -
family,
15 that separates the two homes. So they’re not right next to one
16 another. And then there’s the main home right there. So
17 they’re separated a little distance.
18 So over the course of - s childhood, she’d heard
19 about Ron Richins, the neighbor. She’d never actually spoken
20 with him, to her next door neighbor once in her entire life.
21 She never talked to him. But she heard that he’d been in
22 trouble before, thought that he was creepy. There had been
23 discussions in her home amongst neighbors about this guy is
24 weird. And so it was not unusual for Mr. Richins to be out in
25 his front yard every morning as they were getting ready to go.
-1

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ADDENDUM H
1 when you go to the jury room to deliberate is to appoint
2 someone to serve as a jury foreperson. The foreperson should
3 not dominate the jury discussion but rather should facilitate
4 the discussion of the evidence and make sure that all members
5 of the jury get a chance to speak. The foreperson’s opinion
6 should be given the same weight as those of other members of
7 the jury.
8 Once the jury has reached a unanimous verdict, the
9 foreperson is responsible for filling out and signing the
10 verdict form on behalf of the entire jury.
11 For each charge -- there’s only one charge -- the
12 verdict form will have two blanks, one for guilty and the other
13 for not guilty. The foreperson will fill in the appropriate
14 blank to reflect the jury’s unanimous decision. In filling out
15 the form, the foreperson needs to make sure that only one blank
16 is marked for the charge. When your verdict has been found,
17 please notify the bailiff.
18 All right. Closings.
19 CLOSING ARGUMENT
20 BY MR. MAY:
21 Thank you, Your Honor. Thank you, counsel, Mr.
22 Richins.
23 Ladies and gentlemen of the jury, when I spoke to you
24 just this morning I talked a little bit about coincidences and
25 conclusions. AND now is the time when you as the jury get to

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1 make conclusions. You’re the finders of fact in this case.
2 And it’s our turn, the State’s turn, and then it will be
3 defense counsel’s turn, to make our arguments. That’s what
4 we’re offering you here.
5 And I’m going to argue that what you saw, the
6 evidence you received in this case is sufficient for you to not
7 just consider coincidences but to make a conclusion that the
8 defendant, Ronald Richins, is guilty of the crimes as alleged.
9 Let’s think for just a moment about the testimony
10
11
12
that you’ve heard.
- a 15-year-old, is doing an
ordinary thing. She’s on her way to school. She sees
something very ordinary, the defendant sitting in his yard.
13 He’s not sitting. Sorry. Standing in his yard. Something she
14 says is happening on more days than -- that he's not. So
15 that’s not going to draw her attention in any way.
16 But at some point, she’s backing out with her mother
17 in their Toyota Sienna. She notices something that’s far
18 beyond the ordinary, something that she observes. And she
19 described it this way. She said she sees his hands down in his
20 crotch area. She indicates that the motion she sees looks like
21 he’s masturbating. It’s moving up and down, and that there’s
22 something in his hands. She further describes his zipper being
23 down and his pockets being turned down as well.
24 Her immediate response to what she sees is not an
25 inquiry, not a "Is that right," but a direct declaration to her

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1 mother, "Mom, don’t look." She indicated to you that she was
2 revulsed. She was disgusted by what she saw and that’s why she
3
4
5
warned her mother. That is what
She was not mistaken.
- saw on May 18, 2017.

Now let’s think about the fact of mistake because

6 you’ll no doubt hear that she was mistaken in what she
7 observed, this is a fabrication. Somehow the mother poisoned
8 the well against Mr. Richins by telling her daughter that he
9 was on a registry.
10 Now, I want you to think about the evidence that you
11 received as a stipulation in reference to that argument because
12 I think that is where it’s applicable. You’ve heard from four
13 separate women that have described essentially the same conduct
14 about Mr. Richins. They said they saw his penis, and they saw
15 his hand touching his penis. They saw a very similar thing to
16
17
18
what
- described.
So ask yourselves, what are the odds that
-
description is accurate? It’s not mistaken. It’s not the
19 result of some fantasy or oppressed thought. That is why that
20 evidence is so important.
21
22
23
- -- and I think as you assess what she saw, you
need to consider some very important factors because there are
some real flaws to this poisoned well argument. First and
24
25
foremost, neither
- - nor had any idea what the
conduct that Mr. Richins had committed, why he was on the

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1 registry? What was the reason for the warning. Right? No
2 clue. Just, "Don’t talk to him. Stay away from him."
3 So how is it when you apply that to these four
4
5
6
separate allegations, right, and then
- description of the
exact same conduct essentially, what are the odds of such a
misfortune befalling Mr. Richins on five separate occasions?
7 That is relevant, relevant evidence.
8 So not only does she describe this incident, but it’s
9 the exact same incident that four other women have described.
10 That would be an amazing poisoning of the well by the mother
11 that somehow she’s fabricated the exact same incident that have
12 been alleged to have occurred on four separate occasions.
13
14
15
Now,
- had seen the defendant every morning for
ten years, she testified, more or less, at least when she’s
been going to school, and made no accusations whatsoever in the
16 past. What was it, if not the veracity of what she saw, that
17 prompted her to come forth on this day? She has no motivation
18 to lie. She has no special reason or dislike.
19 Her mother testified she thought he was creepy and
20 described to you exactly why. But on this day -- the
21 creepiness had never caused anything more than, "He’s creepy
22
23
24
and I don’t talk to him." But on this day
- says, "It
wasn’t creepiness. I was disgusted. The man’s zipper was
down. His hands were on the flesh, and he was moving his hands
25 back and forth." her description is clear and it’s accurate,

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1 and it’s supported by some considerable evidence.
2 Now, by the time mom turns around, might be thinking,
3 "Well, mom didn’t see it." Well, mom is driving the vehicle
4 down the street. She’s already in motion by the time her
5 daughter’s responded in this emotional way and described the
6 things that she’s described. And mom sees something that is
7 just the defendant with his hands in that area, his hands are
8 down there, but can’t provide further description than that.
9 The State will not attempt to stretch testimony
10 beyond that description because that is exactly what she saw.
11 But I would submit to you that that description is
12 entirely consistent with her daughter. Her daughter saw things
13 at a different vantage, at a different time. And had a longer
14 period of observation from which to make her observation. And
15 her exclamation to her mom, "Mom, don’t look."
16 Interestingly enough -- again, I want you to consider
17 that exclamation. It is a powerful statement. Because what
18
19
20
- does not say is sometimes just as important as what she
does. She doesn’t say, "Mom, I think," or "Mom, is he." No.
No. Her instant reaction to what she saw was, "Don’t look"
21 because she knew what she saw. She saw the defendant acting in
22 a lewd way.
23 That is the evidence you’ve received here. It’s not
24 a lot. It’s not a long case. You don’t have a lot of things
25 to consider because very, very few people who are present. But

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1 based on that evidence presented by and ,
2 and based on the stipulation of fact for which you can consider
3
4
5
specifically, is
- mistaken? Is she fabricating this claim?
And you can consider the notion that what is the objective
improbability of somebody having this bad of luck. It is no
6 coincidence, ladies and gentlemen of the jury, it is a clear,
7 clear, clear conclusion. The defendant Ron Richins is guilty
8 beyond a reasonable doubt.
9 CLOSING ARGUMENT
10 BY MR. BUGDEN:
11 Mr. Richins, counsel, Judge, and ladies and gentlemen
12 of the jury, thank you very much for being here today. We
13 appreciate your attention. Happily, it’s a one-day trial and
14 it didn’t take a long time. But I want to begin by, again,
15 very much appreciating your participation. Next to voting,
16 next to being in the military or paying your taxes, there
17 aren’t many other times that we can contribute to our society
18 and be members of our judicial system. So thank you for being
19 here. It’s the way our judicial system works.
20 There are two rules in our system of justice that the
21 judge has talked about and that I need to spend a little bit of
22 time talking about as well before we talk about the evidence
23 together and before you retire to deliberate. You’ve heard
24 these phrases before, and the judge has talked about these
25 phrases today, but I’m going to spend just a moment talking

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