Date: 01-09-2014

Case Style: State of Utah v. Troy Dean Labrum

Case Number: 2014 UT App 5

Judge: McHugh

Court: The Utah Court of Appeals on appeal from the Third District Court, West Jordan Department

Plaintiff's Attorney: Simarjit S. Gill and Thomas V. Lopresto II, Attorneys for Appellee

Defendant's Attorney: Adam Alba, Attorney for Appellant

Description: ¶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).

Outcome: ¶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.

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