State of Utah v. Troy Dean Labrum

¶1 Troy Dean Labrum appeals from a conviction for assault,

enhanced to a class A misdemeanor for causing substantial bodily

injury. See Utah Code Ann. § 76-5-102(1), (3)(a) (LexisNexis 2012).

Labrum challenges the admission of evidence at trial relating to

prior alleged assaults. He also argues that the evidence of substantial

bodily injury was insufficient to support his conviction. We

affirm.

State v. Labrum

1. "When reviewing a jury verdict, we examine the evidence and all

reasonable inferences drawn therefrom in a light most favorable to

the verdict, and we recite the facts accordingly.” State v. Kruger,

2000 UT 60, ¶ 2, 6 P.3d 1116. "We present conflicting evidence only

when necessary to understand issues raised on appeal.” Id.

20120678-CA 2 2014 UT App 5

BACKGROUND

¶2 Labrum's conviction arose out of an altercation during the

early hours of March 6, 2011, between Labrum and his then-wife

(Wife). The couple 1 initially began to argue over Wife's attempts to

clean their house and to repair a damaged wall in their basement

with spackling paste. Labrum followed Wife while she was

cleaning and repairing the house, yelling at her because he was

irritated by the smell of the spackling paste she was using to repair

the drywall. During a break in the argument, around 1:00 a.m.,

Wife noticed that Labrum had gone to the basement. She decided

to go to sleep and turned off the lights on the main floor of the

house. Around 2:30 a.m., Labrum ran upstairs screaming at Wife

that she had turned off the lights "'on purpose to make [him]

mad.'” After Labrum left the bedroom, Wife decided to leave the

house because she believed that Labrum would become violent.

She got her purse and a set of keys and walked out the door.

However, she quickly changed her mind and returned to bed while

still holding the set of keys.

¶3 At this point, Wife's and Labrum's versions of events

diverge. According to Wife, Labrum returned to the bedroom and

asked her to move over so that he could get in the bed. When Wife

told him to sleep in another room, Labrum began to strike Wife in

the face with a full Gatorade bottle, hitting her a total of six times

across her face. By the third blow, Wife was able to pull the covers

over her head in an attempt to block Labrum's attacks. After

Labrum stopped hitting Wife, she put her hands down and

positioned the set of keys so that an individual key was protruding

between each of her fingers. Labrum then "flopped down onto

State v. Labrum

2. Rule 404(b) provides,

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

(continued...)

20120678-CA 3 2014 UT App 5

[her],” landing on the keys. Labrum got up, spun around, and

punched Wife on the right side of her forehead. Before Labrum

walked out of the room, he stated, "'I told you never to touch me'”

and, "'You deserve what you get.'” Wife fled to her mother's

house, and Wife's mother immediately drove her to the hospital.

¶4 Labrum's account differed markedly from Wife's. According

to Labrum, he went upstairs to go to bed but was unable to turn on

the bedroom lights because they were controlled by a remote that

was not by the entrance to the room. As Labrum went to sit on the

bed, he "started feeling punches in [his] back” and felt something

pierce him in his back. Labrum then swung his arm back while

holding a Gatorade bottle, not intentionally but out of "instinct.”

He acknowledged that his arm must have struck Wife's head but

claimed that he did not hit Wife more than once. When Wife yelled

and turned on the lights, Labrum noticed that she had keys

protruding between her fingers. Wife then left the house.

¶5 The State charged Labrum with class A misdemeanor

assault for causing substantial bodily injury. The magistrate bound

him over for trial after a preliminary hearing on July 14, 2011.

Labrum filed a motion to quash the bindover on the ground that

the State had failed to produce sufficient evidence that Wife

suffered "substantial bodily injury.” The trial court denied the

motion.

¶6 On February 24, 2012, the State filed a notice of intent to

introduce evidence pursuant to rule 404(b) of the Utah Rules of

Evidence. Specifically, 2 the State wanted to introduce Wife's

State v. Labrum

2. (...continued)

may be admissible for another purpose, such as

proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack

of accident.

3. In the State's motion in limine to admit the other acts evidence,

the State proffered a statement from Wife that Labrum "pushed

[her] against the stairs” and then walked on top of her to get up the

stairs. At trial, however, Wife testified that Labrum pushed her

"down the stairs” and then walked on top of her.

20120678-CA 4 2014 UT App 5

testimony that she took the keys to bed and placed them between

her fingers to protect herself from Labrum, who had physically

attacked her three times in the eight months prior to the March 6,

2011 attack. Because Labrum had indicated that self-defense would

be an issue at trial, the State also sought to admit the evidence to

overcome any suggestion that Labrum was acting in self-defense.

¶7 The proposed other acts evidence included an incident in

August 2010, where an argument between the couple escalated to

the point that Labrum pushed Wife against a couch. When Wife got

up and tried to walk away, Labrum pushed her down the stairs

and walked on top of her.3 Although Wife called the police, when

they arrived at the house she told them that there was no need to

make a formal report. Wife later claimed that she did so because

Labrum threatened that if the police entered the house, he would

kill her and them. There is no written report of the incident in the

record. The second prior incident occurred on February 5, 2011,

when Labrum became upset because Wife was "leaving to go to

[her] parent's home to borrow some money.” Labrum flipped Wife

off and he "ran his finger[nail] . . . up the side of [her] face and cut

the side of [her] face up through [her] eyelid.” Wife did not call the

police after this altercation. The third prior incident occurred on

February 23, 2011. Wife and Labrum were engaged in a heated

discussion when Labrum punched a hole in the bedroom door,

State v. Labrum

4. Rule 401 provides, "Evidence is relevant if: (a) it has any

tendency to make a fact more or less probable than it would be

without the evidence; and (b) the fact is of consequence in

determining the action.” Rule 402 provides that "[r]elevant

evidence is admissible” except as otherwise provided by rule,

statute, or constitution, and that "[i]rrelevant evidence is not

admissible.”

20120678-CA 5 2014 UT App 5

kicked out two bathroom vanity doors, strangled Wife, threw her

against the wall when she tried to walk away, threatened to take

Wife to the Great Salt Lake and shoot her, and threatened that

"after he finished [Wife] off[,] he would take care of [Wife's]

family.” Wife did not call the police to report this incident either.

And although Labrum's nine-year-old daughter stayed with Wife

and Labrum about half of the time, she was not present during any

of these prior attacks.

¶8 Labrum objected to the introduction of the other acts

evidence and filed a memorandum in support of his objection.

Labrum argued that the incidents were not offered for a proper

purpose, that they were irrelevant and unfairly prejudicial, and

that the admission of this evidence would confuse the issues,

mislead the jury, and waste the trial court's time.

¶9 After a hearing on March 5, 2012, the trial court granted the

State's motion, allowing the introduction of the other acts evidence

at trial. In its written order, the trial court indicated that the other

acts evidence was "admissible for the proper non-character

purposes of (1) showing [Wife's] state of mind/providing context

to her decision to bring keys with her to bed before the alleged

assault and (2) to rebut [Labrum's] claim of self-defense.” The trial

court then determined that the evidence was relevant under rules

401 and 402 "for the same reasons.”4 The trial court also determined

that the probative value of the three prior incidents was not

substantially outweighed by the danger of unfair prejudice under

State v. Labrum

5. Rule 403 provides, "The 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.”

20120678-CA 6 2014 UT App 5

rule 403, and that the evidence was therefore admissible under rule

404(b).5

¶10 During a one-day jury trial, Wife recounted her version of

the March 6, 2011 attack. Wife also indicated that when she went to

the hospital, she was told that she had suffered a contusion on her

forehead as well as severe bruising and swelling of her face and

eyes. She explained that the hospital staff called the police. The

responding officer took Wife's statement and numerous photographs

of her injuries. Wife testified that the bruising and swelling

on her face lasted for over two weeks, that she could not keep her

eyes open for very long during that period of time, and that she

had to apply ice to her injuries periodically in order to see out of

both eyes. Wife also indicated that she was unable to perform her

job as a second-grade teacher during that time due to the magnitude

of the swelling and bruising and because she believed her

appearance would frighten her students. Through Wife, the State

introduced twelve photographs showing the progression of Wife's

injuries: two photographs taken at the hospital on March 6, 2011;

four photographs taken on March 7, 2011, about twenty-four hours

after the incident; and six photographs taken on March 8, 2011,

about forty-eight hours after the incident.

¶11 Next, Wife testified that she took the keys to bed with her

"[f]or protection [from Labrum's] rage.” The prosecutor asked Wife

why she felt she needed protection, and Wife said it was because

of "past events that had occurred in the marriage.” At that point,

the trial court interjected and gave a verbal instruction to the jurors

that the other acts evidence that they were about to hear was being

admitted to help the jury "in determining whether Mr. Labrum

State v. Labrum

20120678-CA 7 2014 UT App 5

acted intentionally on March 6th and on the issue of whether there

[was] self defense,” and not to show that Labrum was "a person of

bad character.” The trial court cautioned the jury that Labrum was

not on trial for those past events but only for the March 6, 2011

incident. Thereafter, Wife gave her account of the three prior

incidents of violence. The detective who was assigned to investigate

the March 6, 2011 domestic violence incident between Labrum

and Wife testified that he reviewed dispatch records and confirmed

that Wife called the police in August 2010 and that the call was

initially categorized as a domestic violence incident but had then

been recategorized as a "public assist.” The State introduced a

photograph of Wife's face that Wife had taken herself after the

February 5, 2011 incident that showed a cut across her eyelid and

cheek. The State also introduced four photographs of the damage

that Labrum caused in the house after the February 23, 2011

incident.

¶12 At the close of the State's case, Labrum moved for a directed

verdict on the ground that the State had failed to present sufficient

evidence of "substantial bodily injury.” The trial court denied that

motion, indicating that the jury "could find this was protracted

physical pain” and that having "a black eye for two weeks” could

amount to "temporary disfigurement.”

¶13 Thereafter, Labrum testified on his own behalf. In addition

to testifying about his recollection of the March 6, 2011 altercation,

Labrum offered his own version of events relating to the prior

incidents. Labrum testified that he recalled having an argument

with Wife in August 2010 but that there was no physical contact

between them. He further testified that on February 5, 2011, he and

Wife had an argument about money, and as he was leaving, he

"flipped [Wife] off.” He testified that Wife ran at him, slapped him,

and knocked the door shut, and that Wife received the cut on her

face after running into his finger while it was extended toward her.

As to the February 23, 2011 incident, Labrum claimed that he had

never threatened, touched, or strangled Wife. However, Labrum

State v. Labrum

6. The prosecutor did, however, discuss the other acts evidence in

her opening statement. The prosecutor stated that Wife took the

keys to bed with her "because three times prior to this night and

this argument, verbal arguments with the defendant ended with

physical violence.” After briefly describing the three incidents, the

prosecutor said, "So [Wife] goes to sleep . . . with these in mind and

with those keys in her hand.”

20120678-CA 8 2014 UT App 5

acknowledged that he did break the cabinet doors depicted in the

photographs of the incident.

¶14 After the close of evidence, the trial court instructed the jury

on the applicable law, which included an instruction on selfdefense.

During closing argument, the prosecutor argued that

Labrum assaulted Wife and caused substantial bodily injury. Other

than one brief reference, the prosecutor did not address the other

acts evidence in closing arguments.6 Labrum's trial counsel argued

that Labrum acted in self-defense, contending that Wife decided

"to lie in wait, to wait for him in the dark and ambush him with a

set of keys.”

¶15 The jury found Labrum guilty of assault, enhanced to a class

A misdemeanor because Wife had suffered substantial bodily

injury. Thereafter, Labrum was sentenced to ninety days in jail and

was placed on probation for a period of twenty-four months.

Labrum now appeals.

ISSUES AND STANDARDS OF REVIEW

¶16 Labrum contends that the trial court abused its discretion

when it admitted evidence of other uncharged acts under rule

404(b) of the Utah Rules of Evidence. "A trial court's admission of

other acts evidence is reviewed for abuse of discretion, but the

evidence 'must be scrupulously examined by trial judges in the

proper exercise of that discretion.'” State v. Verde, 2012 UT 60, ¶ 13,

State v. Labrum

20120678-CA 9 2014 UT App 5

296 P.3d 673 (quoting State v. Decorso, 1999 UT 57, ¶ 18, 993 P.2d

837).

¶17 Labrum also contends that the State failed to set forth

evidence supporting the jury's determination that Wife suffered

"substantial bodily injury.” In reviewing a claim of insufficient

evidence, we "view[] the evidence and all inferences drawn

therefrom in a light most favorable to the jury's verdict.” State v.

Holgate, 2000 UT 74, ¶ 18, 10 P.3d 346. "We will only conclude that

the evidence was insufficient if it 'is sufficiently inconclusive or

inherently improbable such that reasonable minds must have

entertained a reasonable doubt that the defendant committed the

crime for which he or she was convicted.'” State v. Samples, 2012 UT

App 52, ¶ 9, 272 P.3d 788 (quoting Holgate, 2000 UT 74, ¶ 18).

ANALYSIS

I. Other Acts Evidence

¶18 Labrum first argues that the trial court abused its discretion

by admitting evidence of other uncharged acts. "Rule 404(b) of the

Utah Rules of Evidence instructs that '[e]vidence of other crimes,

wrongs or acts is not admissible to prove the character of a person

in order to show action in conformity therewith.'” State v. Marchet,

2009 UT App 262, ¶ 28, 219 P.3d 75 (alteration in original) (quoting

a prior but substantively similar version of rule 404(b)). "However,

rule 404(b) does allow for the admission of bad acts evidence for

other purposes, 'such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.'” Id. (quoting a prior but substantively similar version of

rule 404(b)). Thus, evidence offered under rule 404(b) is "'admissible

if it is relevant for a non-character purpose and meets the

requirement of Rules 402 and 403.'” Id. (quoting Utah R. Evid. 404

advisory committee note).

State v. Labrum

20120678-CA 10 2014 UT App 5

¶19 Traditionally, "[a] decision as to the admissibility of bad acts

evidence involve[d] a three-step process.” Id. ¶ 29; see also State v.

Nelson-Waggoner, 2000 UT 59, ¶¶ 18–20, 6 P.3d 1120. Under this

three-part analysis, the trial court must first determine whether the

other acts evidence "is being offered for a proper, noncharacter

purpose, such as one of those specifically listed in rule 404(b).”

Nelson-Waggoner, 2000 UT 59, ¶ 18. "[I]f the trial court concludes

that the bad acts evidence is 'being offered only to show the

defendant's propensity to commit crime, then it is inadmissible and

must be excluded at that point.'” Marchet, 2009 UT App 262, ¶ 29

(quoting Nelson-Waggoner, 2000 UT 59, ¶ 18). In contrast, if the trial

court is convinced that the purpose of the evidence is proper, it

"must [next] determine whether the bad acts evidence meets the

requirements of rule 402, which permits admission of only relevant

evidence.” Nelson-Waggoner, 2000 UT 59, ¶ 19; see also Decorso, 1999

UT 57, ¶ 22 ("[U]nless the other crimes evidence tends to prove

some fact that is material to the crime charged—other than the

defendant's propensity to commit crime—it is irrelevant and

should be excluded by the court pursuant to rule 402.”). If the other

acts evidence is relevant and offered for a proper purpose, the trial

court "must analyze the evidence in light of rule 403 to assess

whether its probative value is substantially outweighed by the risk

of unfair prejudice to the defendant.” Marchet, 2009 UT App 262,

¶ 29 (citing Nelson-Waggoner, 2000 UT 59, ¶ 20). In State v. Verde,

2012 UT 60, 296 P.3d 673, the Utah Supreme Court considered the

relevance of the other acts evidence as integral to an analysis of the

first and third parts of the traditional test and did not address it as

a separate step of the analytical framework. See id. ¶¶ 14–18, 26, 40,

57. We follow that approach here by undertaking our analysis in

two parts, both of which require us to focus on the relevance of the

other acts evidence under the facts of this case.

A. Noncharacter Purpose

¶20 We first determine whether the trial court exceeded its

discretion in determining that the evidence was offered for a

proper, noncharacter purpose. The State asserts that the other acts

State v. Labrum

20120678-CA 11 2014 UT App 5

evidence was offered for the proper, noncharacter purposes of

establishing Wife's state of mind, providing context for her actions,

and establishing that Labrum acted intentionally and not in selfdefense.

¶21 "Fidelity to [rule 404(b)] requires a threshold determination

of whether proffered evidence of prior misconduct is aimed at

proper or improper purposes. If such evidence is really aimed at

establishing a defendant's propensity to commit crime, it should be

excluded despite a proffered (but unpersuasive) legitimate

purpose.” Verde, 2012 UT 60, ¶ 17 (citations and internal quotation

marks omitted). Furthermore, the fact which the other acts

evidence is being offered to prove must be contested and material

to the charged offense. Id. ¶¶ 21–26; State v. Decorso, 1999 UT 57,

¶ 22, 993 P.2d 837.

¶22 Rule 404(b) specifically provides that other acts evidence is

admissible to show proof of "motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of

accident.” Utah R. Evid. 404(b)(2). Thus, evidence may be admissible

under rule 404(b) to rebut a defense that the defendant lacked

the requisite intent to commit a crime. See State v. Fedorowicz, 2002

UT 67, ¶ 30, 52 P.3d 1194 ("Evidence is admissible under rule 404(b)

to rebut a defense of accidental injury . . . .”); State v. Widdison, 2000

UT App 185, ¶ 33, 4 P.3d 100 (holding that other acts evidence was

admissible where the "defendants made statements to both the

police and other witnesses which put absence of mistake or

accident at issue”). Furthermore, the list of noncharacter purposes

in rule 404(b) "is not exhaustive.” State v. Allen, 2005 UT 11, ¶ 17,

108 P.3d 730. For example, in State v. Bates, 784 P.2d 1126 (Utah

1989), our supreme court approved of the admission of testimony

about a defendant's other acts because the testimony was offered

to show the victim's state of mind—namely, the victim's fear of the

defendant—in order to explain the victim's delay in reporting the

charged abuse. Id. at 1127–28; accord State v. Harter, 2007 UT App 5,

¶ 28, 155 P.3d 116 ("[T]he trial court acknowledged that [the

victim's] testimony about her prior injuries was offered for the

State v. Labrum

7. The trial court instructed the jury that the evidence was being

offered only to establish Labrum's intent and whether he acted in

self-defense.

20120678-CA 12 2014 UT App 5

proper, noncharacter purpose of demonstrating [the victim's] state

of mind—her fear of [the d]efendant.”). Additionally, other acts

evidence may be admissible under rule 404(b) to show context.

State v. Havatone, 2008 UT App 133, ¶ 10, 183 P.3d 257; see also State

v. Dominguez, 2003 UT App 158, ¶ 21, 72 P.3d 127 (concluding that

evidence had been admitted for a proper, noncharacter purpose

when "the trial court's ruling limited testimony to that necessary

as context for admissible evidence”); State v. Morgan, 813 P.2d 1207,

1210 n.4 (Utah Ct. App. 1991) ("[T]he prosecutor is entitled to paint

a factual picture of the context in which the events in question

transpired.”). Our supreme court recently acknowledged this valid

purpose, stating that the prosecutor retains "the right to present

evidence with broad narrative value beyond the establishment of

particular elements of a crime.” Verde, 2012 UT 60, ¶ 28 (internal

quotation marks omitted). But the supreme court cautioned that

such evidence has "no legitimate narrative value” "where it is not

plausibly linked to any charged conduct.” Id. ¶ 29. Accordingly,

other acts evidence admitted to provide context must be carefully

limited to narrative evidence offered in support of the elements of

the crime at issue.

¶23 Here, the prosecutor offered the other acts evidence for the

proper purpose of rebutting Labrum's testimony that he instinctively

hit Wife with the Gatorade bottle in self-defense.7 The

evidence of Labrum's prior acts of violence against Wife supports

Wife's testimony that she armed herself with the keys to protect

herself and not, as Labrum contends, to ambush Labrum when he

came to bed. As the trial court noted, "The taking [of] some type of

a weapon to bed with someone has to be explained . . . .” Without

an understanding that Wife had reason to fear Labrum, the State

would be unable to explain why she brought the keys to bed and

would be unable to challenge effectively Labrum's testimony that

State v. Labrum

20120678-CA 13 2014 UT App 5

Wife was the aggressor and that he was merely defending himself.

The other acts evidence was thus directly relevant to the contested

issues of Wife's actions and state of mind and whether Labrum was

acting in self-defense. Cf. State v. Holbert, 2002 UT App 426, ¶ 37, 61

P.3d 291 (stating that a prior instance of domestic violence perpetrated

by the defendant against the same victim was relevant to

refute the defendant's claim that the victim was the perpetrator in

the charged episode). See generally Utah R. Evid. 401 (defining

relevant evidence). Accordingly, the trial court did not exceed its

discretion when it determined that the other acts evidence was

presented for the proper, noncharacter purpose of establishing

Wife's fear of Labrum when she armed herself with the keys,

thereby helping to rebut Labrum's self-defense claim.

B. Rule 403 Analysis

¶24 Next, we must determine whether the trial court exceeded

its discretion in concluding that the three prior incidents of

domestic violence were admissible under rule 403 of the Utah Rules

of Evidence. Rule 403 states, "The 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.”

¶25 Evidence that is "genuinely being offered for a proper,

non-character purpose” may also carry "a risk of an undue

inference that the defendant committed each act because of the

defendant's immoral character.” State v. Verde, 2012 UT 60, ¶¶ 18,

51, 296 P.3d 673. A rule 403 analysis of other acts evidence thus

focuses on balancing the proper inferences against the improper

inferences and "excluding the bad acts evidence if its tendency to

sustain a proper inference is outweighed by its propensity for an

improper inference or for jury confusion about its real purpose.” Id.

¶ 18. In balancing the probative value of other acts evidence against

"[i]ts tendency to lead the finder of fact to an improper basis for

decision,” Utah courts have traditionally considered what have

State v. Labrum

8. The supreme court issued State v. Verde, 2012 UT 60, 296 P.3d 673,

after Labrum's case had been tried and his notice of appeal filed.

20120678-CA 14 2014 UT App 5

come to be known as the Shickles factors. See State v. Shickles, 760

P.2d 291, 295–96 (Utah 1988), abrogated on other grounds by State v.

Doporto, 935 P.2d 484 (Utah 1997). The Shickles factors include the

following:

"[1] the strength of the evidence as to the commission

of the other crime, [2] the similarities between the

crimes, [3] the interval of time that has elapsed

between the crimes, [4] the need for the evidence, [5]

the efficacy of alternative proof, and [6] the degree to

which the evidence probably will rouse the jury to

overmastering hostility.”

Id. at 295–96 (quoting Edward W. Cleary et al., McCormick on

Evidence § 190, at 565 (3d ed. 1984)).

1. Relevance of the Shickles Factors in Light of State v. Verde

¶26 The Utah Supreme Court's recent decision in Verde has left

the continuing relevance of the Shickles factors somewhat

uncertain.8 In Verde, the defendant, who was charged with child

sexual abuse, challenged the trial court's admission of evidence

that he had previously sexually assaulted two eighteen-year-olds.

See 2012 UT 60, ¶¶ 1–3. This court affirmed the trial court's decision

admitting the evidence, and the supreme court granted the

defendant's petition for certiorari review. See id. ¶ 1. Before the

supreme court, the state argued that the evidence was admissible

to establish the defendant's specific intent, demonstrate the

defendant's plan to engage in criminal activity, and rebut his claim

that the child victim had fabricated the allegations. See id. ¶ 20. The

supreme court rejected the specific intent purpose advanced by the

state because the defendant had not placed that element at issue.

See id. ¶ 25. The court rejected the plan purpose as based on an

State v. Labrum

9. The doctrine of chances is a "theory of logical relevance,” which

a proponent may use to argue that, using "probability reasoning,”

a factfinder may infer that a disputed fact is more likely or less

likely to be true due to the recurrence of some improbable event.

See Verde, 2012 UT 60, ¶¶ 47–61. For example, "[a]n innocent

person may be falsely accused or suffer an unfortunate accident,

but when several independent accusations arise or multiple similar

'accidents' occur, the objective probability that the accused

innocently suffered such unfortunate coincidences decreases.” Id.

¶ 49.

20120678-CA 15 2014 UT App 5

overly broad definition of "plan.” See id. ¶¶ 39–40. Finally, the

court refused to affirm on the fabrication purpose because the state

had not asked the trial court to admit the other acts evidence on

that basis. See id. ¶¶ 44–62. To assist the trial court on remand if the

fabrication purpose was advanced during the new trial, the

supreme court identified limitations on the use of other acts

evidence to rebut a defendant's claim that the victim fabricated the

charges. See id. ¶ 56. The court adopted the doctrine of chances as

the basis for those limitations, explaining, "Under the doctrine of

chances, evidence offered to prove actus reus must not be admitted

absent satisfaction of four foundational requirements, which

should be considered within the context of a rule 403 balancing

analysis.” See id. ¶¶ 9 56–57. Specifically, the supreme court

identified materiality, similarity, independence, and frequency as

foundational requirements under the doctrine of chances. See id.

¶¶ 57–61.

¶27 In Verde, the supreme court did not apply the doctrine of

chances when assessing the admissibility of the other acts evidence

to prove specific intent or plan under rule 403. See id. ¶¶ 21–32,

40–41. Nor did it consider each of the Shickles factors in its analysis

of specific intent or plan. Instead, the court referred to only one of

those factors—the prosecution's need for the evidence—in rejecting

the state's claim that the prior sexual assault evidence was admissible

to establish the defendant's specific intent, see id. ¶ 26 & n.6, and

another Shickles factor—the similarity of the evidence—in rejecting

State v. Labrum

20120678-CA 16 2014 UT App 5

the state's claim that the prior sexual assault evidence was admissible

to establish the defendant's plan to engage in criminal activity,

see id. ¶¶ 40–41.

¶28 Where the context involves a doctrine of chances analysis,

we read Verde as having displaced the Shickles factors—for

purposes of assessing the "probative value” aspect of the rule 403

analysis—with a focus on materiality, similarity, independence,

and frequency. See id. ¶¶ 57–61. With respect to the "risk of unfair

prejudice” aspect of the rule 403 analysis, Verde focuses on the risk

that the jury may draw an improper "character” inference from the

evidence or that it may be confused about the purpose of the

evidence. When addressing the probative value of the other acts

evidence in cases not governed by the doctrine of chances, the

Shickles factors remain relevant to the extent they are useful. Under

either analysis, Verde instructs that the prejudice inquiry is focused

generally on the extent to which the "tendency [of the other acts

evidence] to sustain a proper inference is outweighed by its

propensity for an improper inference or for jury confusion about its

real purpose.” See id. ¶ 18; Shickles, 760 P.2d at 295 (noting that

what have come to be called the Shickles factors are relevant to the

balancing of the "tendency [of the other acts evidence] to lead the

finder of fact to an improper basis for decision” against the

"probative value and the need for such evidence in proving a

particular issue”). Thus, even where the doctrine of chances does

not apply, the trial court need not rigidly apply or limit its analysis

to the Shickles factors. Rather, the trial court should carefully weigh

the tendency toward proper and improper inferences from the

other acts evidence in the context of the particular case and

consider whatever factors are relevant to that analysis as it

"scrupulously examine[s]” the evidence. See Verde, 2012 UT 60, ¶ 13

(citation and internal quotation marks omitted). We now consider

which analytical framework is appropriate here.

¶29 In Verde, the supreme court "acknowledge[d] the theoretical

possibility that evidence of prior misconduct could be admitted

under rule 404(b) to establish commission of a criminal actus reus by

State v. Labrum

20120678-CA 17 2014 UT App 5

rebutting a charge of fabrication.” Id. ¶ 46; see also id. ¶¶ 44–62. The

supreme court also indicated that the doctrine of chances could be

employed to assess other acts evidence offered to rebut a claim of

accident. See id. ¶ 49. And the authorities cited favorably in Verde

suggest that the doctrine also applies to assessing the admissibility

of other acts evidence offered to rebut a defense of mistake. See id.

¶ 48 & n.17 (citing United States v. Russell, 19 F. 591, 592 (W.D. Tex.

1884), for the proposition that "'[t]he chances of mistake decrease

in proportion as the alleged mistakes increase'”); id. ¶ 49 & n.22

(citing David P. Leonard, The New Wigmore: A Treatise on Evidence:

Evidence of Other Misconduct and Similar Events § 7.3.2 (2009), for its

discussion of "Wigmore's classic example of a hunter 'mistakenly'

shooting toward a hunting partner multiple times”). Cases and

commentaries have also discussed and applied the doctrine to

assess evidence offered to establish intent by rebutting a claim of

self-defense. See, e.g., State v. Monroe, 364 So. 2d 570, 571–73 (La.

1978) ("The evidence of the subsequent act, which was strikingly

similar, had great probative value to show the improbability that

the defendant acted in self defense or without requisite intent in

strangling two derelicts on successive nights at the same spot on

the river batture.”); Leonard, supra, § 7.3.2, at 437–38, § 7.5.2, at

458–62 (discussing examples of other acts evidence used to rebut a

claim of self-defense and cautioning that in such cases, ignoring

differences among charged and uncharged conduct "reveal[s] lack

of understanding of the nuanced nature of doctrine of chances logic

and of the danger of eviscerating the character evidence ban”).

¶30 Whether the doctrine of chances applies depends on why the

other acts are relevant. Other acts evidence is relevant if it has any

tendency to make a consequential fact more probable or less

probable. See Utah R. Evid. 401. If that tendency lies in the improbable

repetition of a similar event, the doctrine of chances applies.

See State v. Verde, 2012 UT 60, ¶¶ 47–61, 296 P.3d 673; 1 Edward J.

Imwinkelried, Uncharged Misconduct Evidence § 5.06, at 16 (1999);

Leonard, supra, § 7.3.2, at 438. Under the doctrine of chances, "the

inference of mens rea arises from the implausibility of the defendant's

claim of successive similar innocent acts.” 1 Imwinkelried,

State v. Labrum

10. A contrary inference could be drawn that repeated acts of

domestic violence make it more likely that Wife would have been

driven to retaliate against Labrum. But it was for the jury to

determine which competing inference to draw.

20120678-CA 18 2014 UT App 5

supra, § 5.08, at 25 (citation and internal quotation marks omitted).

Thus, "'it is the mere repetition of instances . . . that satisfies our

logical demand.'” United States v. Queen, 132 F.3d 991, 996 (4th Cir.

1997) (omission in original) (quoting 2 John H. Wigmore, Wigmore

on Evidence § 302, at 245 (James H. Chadbourn ed., rev. ed. 1979));

see also State v. Johns, 725 P.2d 312, 323 (Or. 1986) (en banc) ("'[A]n

unusual and abnormal element might perhaps be present in one

instance, but the oftener similar instances occur with similar results,

the less likely is the abnormal element likely to be the true explanation

of them.'” (quoting 2 Wigmore, supra, § 302, at 241)).

¶31 In the present case, Labrum argued that he instinctively hit

Wife in self-defense. As discussed above, the prosecutor offered the

other acts evidence for the proper purpose of establishing

Labrum's intent by rebutting his self-defense claim. See supra

¶¶ 20–23. Specifically, the prosecutor elicited the other acts

evidence to explain Wife's state of mind. Therefore, as noted above,

the other acts evidence was relevant because of its tendency to

make it more likely that Wife brought her keys to bed to protect

herself in the event Labrum became violent, and not to attack

Labrum.10 See supra ¶ 23. The theory of relevance advanced by the

State thus differs from a theory grounded in the doctrine of

chances, which would establish relevance by arguing that the

repetition of several distinctively similar acts of domestic violence

in which Labrum did not act in self-defense tends to make it less

likely that Labrum acted in self-defense on March 6, 2011. See Johns,

725 P.2d at 323 ("'[T]he recurrence of a similar result (here in the

shape of an unlawful act) tends (increasingly with each instance) to

negative . . . self-defense . . . or other innocent mental state, and

tends to establish (provisionally, at least, though not certainly) the

presence of the normal, i.e. criminal, intent accompanying such an

act . . . .'” (quoting 2 Wigmore, supra, § 302, at 241)). Instead, the

State v. Labrum

11. The Shickles factors relevant to the probative value of other acts

evidence include evidentiary strength, similarity, temporal

proximity, and necessity. See State v. Shickles, 760 P.2d 291, 295–96

(Utah 1988), abrogated on other grounds by State v. Doporto, 935 P.2d

484 (Utah 1997).

20120678-CA 19 2014 UT App 5

other acts evidence here was offered to prove Wife's state of mind

when she took the keys to bed, a factual issue not grounded in the

repeated occurrence of an improbable event.

¶32 Whatever the merits of a doctrine of chances analysis under

the circumstances of this case, we do not address it. When other

acts evidence is relevant to a legitimate, proffered purpose and

otherwise admissible, we need not analyze the other acts evidence

under alternative theories of relevance. Cf. Verde, 2012 UT 60,

¶¶ 32–33, 62–63 (concluding that the other acts evidence in

question was inadmissible to prove plan or intent, but

acknowledging that in a new trial the state could potentially

establish that the same evidence was admissible under the doctrine

of chances to rebut a defense of fabrication). Therefore, we review

the trial court's rule 403 decision in light of the tendency of the

other acts evidence to sustain a proper, rather than an improper,

inference, without relying on the doctrine of chances.

2. Application of the Relevant Shickles Factors11

¶33 Labrum argues that the evidence here should not have been

admitted because the prior incidents of domestic violence were

unreported and uncorroborated. While the evidence could be

stronger, it is not as weak as Labrum suggests. The first incident

was corroborated by a detective's testimony at trial that dispatch

records revealed a call by Wife to the police in August 2010 that

was initially logged as a domestic violence incident but ultimately

changed to a "public assist.” The second incident was corroborated

by a photograph of the scratch on Wife's face that she took the day

of that incident. The third incident was corroborated by four

photographs, taken the day of that incident, showing the holes in

State v. Labrum

12. According to Wife's version of events, she was leaving the

house during the second incident. While this fact may indicate that

the second incident fits the same pattern as the other incidents,

Wife provided insufficient detail of that episode to make that

determination.

20120678-CA 20 2014 UT App 5

the bedroom door and bathroom vanity that Labrum had punched

or kicked. The other acts evidence was sufficiently strong to

support the inference for which it was offered.

¶34 Labrum claimed that he struck Wife in a justified effort to

defend himself. If Wife's taking the keys with her to bed was left

without explanation, the jury might have inferred, as Labrum

suggests, that she intended to ambush him with the keys. Even

without corroboration for all of the details of the incidents, the

evidence that prior arguments between the couple had resulted in

at least one domestic violence call to the police, damaged furniture,

and some injury to Wife was highly relevant to her state of mind at

the time of the charged incident and why she felt she needed to

protect herself. Although the incidents are not identical to each

other or to the charged conduct, each involved Labrum attacking

Wife in their house when his daughter was not present. The first

and third attacks involved a similar progression where Labrum

became upset, verbally harassed Wife, and then became physically

violent. Most significantly, each of these incidents involved Wife

attempting to break contact with Labrum by leaving the room but

Labrum escalating the altercations by following Wife.12 When

viewed in the context of the purpose for which this other acts

evidence was offered, these similarities are particularly probative.

See Verde, 2012 UT 60, ¶ 18. The evidence supports Wife's testimony

that she took her keys to bed for fear that Labrum would continue

to escalate the situation to the point of violence, despite her attempt

to disengage.

¶35 Furthermore, as Labrum concedes, these incidents happened

close in time to the charged conduct. The first incident occurred

only eight months before the March 6, 2011 attack, the second

State v. Labrum

20120678-CA 21 2014 UT App 5

incident occurred less than one month before the March 6, 2011

attack, and the third incident occurred a week and a half before the

March 6, 2011 attack. The three incidents established the pattern of

Labrum's violent episodes and suggested that they were becoming

more frequent. As a result, they explain Wife's fear of Labrum on

the day of the charged conduct and her state of mind when she

armed herself with the keys. Cf. State v. Marchet, 2009 UT App 262,

¶¶ 45, 52, 219 P.3d 75 (holding that the trial court acted within its

discretion when it concluded that an incident that occurred more

than two years after the charged conduct "was sufficiently

proximate to warrant its admission”); State v. Northcutt, 2008 UT

App 357, ¶ 13, 195 P.3d 499 (holding that an incident that occurred

twenty months before the charged conduct was not too remote in

time to be probative). In turn, Wife's state of mind was pivotal to

the jury's assessment of Labrum's self-defense claim.

¶36 In considering the improper inferences that the jury might

draw from the other acts evidence, we acknowledge the sensitive

nature of evidence regarding domestic violence. See United States

v. Covington, 565 F.3d 1336, 1342 (11th Cir. 2009) ("Obviously

domestic violence, when irrelevant to the charge at hand, has great

potential to incite unfair prejudice.” (citation and internal quotation

marks omitted)). Here, the jury might improperly infer from the

prior incidents of domestic violence that Labrum is a person of bad

character—specifically, a wife-beater—and that he acted in

conformity with that bad character on the night of the charged

conduct. See generally State v. Verde, 2012 UT 60, ¶ 15, 296 P.3d 673

("So long as the evidence is not aimed at suggesting action in

conformity with bad character, it is admissible under rule 404(b).”).

Labrum contends that this tendency toward an improper inference

was increased because the prior incidents of domestic violence

included conduct more severe than the charged conduct, such as

Labrum's threats to kill Wife, her family, and—if Wife involved

them in the disputes—the police. Although the threats were more

severe than the charged conduct, each prior act of physical violence

that Wife described Labrum as having actually engaged in was

similar in degree to the charged conduct. The testimony that

State v. Labrum

20120678-CA 22 2014 UT App 5

Labrum pushed Wife down the stairs and walked on her, cut her

face with his fingernail, and strangled and pushed her into the wall,

ran no greater risk of creating hostility toward Labrum as a person

of bad character than the evidence presented to support the current

charge that Labrum repeatedly beat Wife in the face with his fists

and a full Gatorade bottle. As our supreme court has explained,

Such evidence of multiple acts of similar or identical

abuse is unlikely to prejudice a jury; jurors will either

believe or disbelieve the testimony based on the

witness's credibility, not whether the witness asserts

an act occurred three times or six. This evidence

simply does not have the prejudicial effect that may

result from introduction of prior criminal acts

committed against a number of unrelated

victims . . . .

State v. Reed, 2000 UT 68, ¶ 31, 8 P.3d 1025; see also State v. Balfour,

2008 UT App 410, ¶ 26, 198 P.3d 471 (concluding that evidence of

multiple acts of similar or identical abuse is unlikely to unfairly

prejudice a jury).

¶37 Furthermore, our review of the record establishes that the

State did not use the other acts evidence for any impermissible

purpose or suggest to the jury that Labrum acted in conformity

with his prior conduct. The prosecutor introduced the evidence in

her opening statement by saying that Wife took her keys to bed

because three prior arguments had ended in violence and that Wife

had those prior incidents "in mind” when she went to sleep

holding her keys. Aside from one brief statement pointing out what

the prosecutor perceived to be evidence of credibility issues in

Labrum's testimony, the prosecutor did not refer to the other acts

evidence during closing argument. Likewise, before the State

elicited Wife's testimony regarding the prior incidents, the trial

court gave a limiting instruction to the jurors, informing them that

they were to use the evidence only in determining whether, on

March 6, 2011, Labrum acted intentionally and not in self-defense.

State v. Labrum

13. "Bodily injury” is defined as "physical pain, illness, or any

impairment of physical condition.” Utah Code Ann. § 76-1-601(3)

(LexisNexis 2012). "Serious bodily injury” is defined as "bodily

(continued...)

20120678-CA 23 2014 UT App 5

The trial court expressly admonished the jurors not to consider the

other acts as evidence that Labrum was "a person of bad character”

and reminded them that Labrum was on trial only for the incident

that occurred on March 6, 2011. See generally Verde, 2012 UT 60, ¶ 18

(noting that implicit in the trial court's balancing under rule 403 is

the consideration of whether the "tendency to sustain a proper

inference [from the other acts evidence] is outweighed by its

propensity for an improper inference or for jury confusion about its

real purpose”).

¶38 The trial court thoroughly examined the other acts evidence

in the context of the purpose for which it was offered and carefully

weighed its tendency toward proper and improper inferences. In

addition, the court took reasonable measures to minimize the risk

that the jury would use the evidence for an improper character

purpose, and the State did not attempt to overcome those

precautions by inappropriate argument. Accordingly, we conclude

that the trial court did not exceed its discretion in admitting the

other acts evidence under rule 404(b).

II. Sufficiency of the Evidence

¶39 Labrum contends that the evidence presented at trial was

insufficient to support the jury's determination that Wife suffered

"substantial bodily injury.” See Utah Code Ann. § 76-5-102(3)(a)

(LexisNexis 2012) (providing for the enhancement of assault to a

class A misdemeanor if "the person causes substantial bodily injury

to another”). "Substantial bodily injury” is defined as "bodily

injury, not amounting to serious bodily injury, that creates or

causes protracted physical pain, temporary disfigurement, or

temporary loss or impairment of the function of any bodily

member or organ.”13 Id. § 76-1-601(12). Here, the jury was properly

State v. Labrum

13. (...continued)

injury that creates or causes serious permanent disfigurement,

protracted loss or impairment of the function of any bodily

member or organ, or creates a substantial risk of death.” Id. § 76-1-

601(11).

20120678-CA 24 2014 UT App 5

instructed about the legal elements of assault, the statutory

definitions of the terms "bodily injury” and "substantial bodily

injury,” and the burden of proof required to determine the level of

injury caused.

¶40 In support of his argument that Wife did not suffer

"substantial bodily injury,” Labrum cites to Minnesota case law

holding that a black eye does not equate to "substantial bodily

harm.” See State v. Whaley, 389 N.W.2d 919, 926 (Minn. Ct. App.

1986) (noting that "a black eye, in and of itself, does not equate to

'substantial bodily harm'” under Minnesota law (citing Minn. Stat.

§ 609.02(7a))). However, Minnesota's statutory definition of

"substantial bodily harm” is materially different from Utah's

definition of "substantial bodily injury.” Utah's definition of

"substantial bodily injury” may be broad enough to encompass

swelling and bruising that amounts to a "temporary

disfigurement,” see Utah Code Ann. § 76-1-601(12), rather than the

"temporary but substantial disfigurement” required under

Minnesota law, see Minn. Stat. § 609.02(7a) (2012) (emphasis

added). Furthermore, Utah's definition also encompasses

"protracted physical pain,” see Utah Code Ann. § 76-1-601(12),

while Minnesota's statutory definition provides no such equivalent,

see Minn. Stat. § 609.02(7a). Consequently, we reject Labrum's

argument that Utah law requires such a narrow reading of

"substantial bodily injury.” Furthermore, the jury could have

concluded from the evidence in this case that Labrum inflicted

injuries that went substantially beyond "a black eye, in and of

itself.” See Whaley, 389 N.W.2d at 926.

¶41 Wife testified that the bruising and swelling to her face

lasted over two weeks, that she could not keep her eyes open for a

State v. Labrum

20120678-CA 25 2014 UT App 5

long period of time, and that she had to periodically apply ice to

her injuries in order to see out of both eyes. Wife also indicated that

her injuries were serious enough that they prevented her from

performing her job as a second-grade teacher, both because of the

magnitude of the swelling and bruising and her concern that her

disfigurement might frighten her students. Furthermore, the State

introduced twelve photographs showing the progression of Wife's

injuries from immediately after the attack, one day after the attack,

and two days after the attack, which documented the extensive

injury to both eyes and much of her face.

¶42 There was sufficient evidence from which the jury could

conclude that Labrum committed an assault that resulted in

substantial bodily injury. Although Wife's injuries conceivably

could have amounted to bodily injury rather than substantial

bodily injury, reasonable minds could also conclude that the

bruising and swelling around Wife's eyes and face, which lasted

over two weeks and prevented her from opening her eyes for long

periods of time, amounted to "temporary disfigurement,” or that

Wife suffered "protracted physical pain” as a result of her injuries.

See Utah Code Ann. § 76-1-601(12); cf. State v. White, 2011 UT App

162, ¶ 11, 258 P.3d 594 (concluding that "a 'small' facial laceration

that bled significantly, continued to bleed for up to thirty minutes,

and left a two to three inch scar visible at trial five months later”

established sufficient evidence for the jury to find substantial

bodily injury).

¶43 The trial court did not exceed its discretion in admitting the

evidence of other uncharged acts. Furthermore, the evidence

presented at trial was sufficient to support the jury’s determination

that Labrum caused substantial bodily injury. Consequently, we

affirm Labrum’s conviction.