                This opinion is subject to revision before final
                       publication in the Pacific Reporter

                                2018 UT 5


                                   IN THE

      SUPREME COURT OF THE STATE OF UTAH

                             STATE OF UTAH,
                                Appellee,
                                      v.
                          KOMASQUIN LOPEZ,
                             Appellant.

                             No. 20151094
                        Filed February 9, 2018

                           On Direct Appeal

                     Third District, Salt Lake
                 The Honorable Judge Paul Parker
                         No. 141900304

                                Attorneys:
    Sean D. Reyes, Att’y Gen., John J. Nielsen, Asst. Solic. Gen.,
                    Salt Lake City, for appellee
        Teresa L. Welch, Andrea Garland, Nick A. Falcone,
                   Salt Lake City, for appellant

    JUSTICE PEARCE authored the opinion of the Court, in which
       CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
            JUSTICE HIMONAS, and JUDGE DIREDA joined.
   Having recused herself, JUSTICE DURHAM did not participate;
            DISTRICT JUDGE MICHAEL D. DIREDA sat.
       JUSTICE PETERSEN became a member of the Court on
      November 17, 2017, after oral argument in this matter,
               and accordingly did not participate.

  JUSTICE PEARCE, opinion of the Court:

                          INTRODUCTION
  ¶ 1 On the day she died, Shannon Lopez picked her husband
Komasquin Lopez up from work. According to Lopez, he drove
                             STATE v. LOPEZ
                          Opinion of the Court


home while he and Shannon argued in the cab of his truck. Lopez
claimed that the argument continued until Shannon shot herself with
a gun Lopez had in his truck. A jury disbelieved Lopez and
convicted him of murder. On appeal, Lopez argues the district court
erred in two ways. First, Lopez challenges the admission of expert
testimony that assessed Shannon’s risk of suicide. Second, Lopez
contends that the district court erred by admitting evidence that he
had, on one occasion, pointed a gun at Shannon’s head, and that on
another, he had leveled a gun at an ex-wife and threatened to kill
her. Lopez also argues that the errors were harmful both
individually and cumulatively, and that insufficient evidence existed
to convict him.
   ¶ 2 We conclude that the State did not lay a sufficient foundation
to demonstrate that the theory its expert employed could be reliably
used to assess the suicide risk of someone who had died. We also
conclude that the district court erred by admitting the evidence of
Lopez’s prior actions. The errors were harmful. We reverse.
                           BACKGROUND
   ¶ 3 Lopez and Shannon, who were married at the time of
Shannon’s death, both enjoyed shooting guns. Lopez used a gun
throughout his career in the military and law enforcement. Shannon,
who had been introduced to firearms at the age of nine, was a
recreational shooter. Lopez and Shannon kept multiple guns in their
home. Lopez usually carried a gun in his truck and another on his
person.
    ¶ 4 On the night of Shannon’s death, Shannon picked Lopez up
from work. Shannon had consumed methamphetamine in a quantity
that the medical examiner described as “toxic.” Lopez also had
methamphetamine in his system. During their commute, Lopez and
Shannon argued about Shannon’s methamphetamine use and their
financial problems. Lopez said during a police interview “that
Shannon’s last words were . . . that she would take the kids and go to
her father’s[.]” He “repeat[ed] . . . several times during [one of the]
interview[s]” that “[s]he said she’d take the kids, she’s already
packed, and she’ll leave . . . .” He further stated that he “told her . . .
during the argument he was going to leave her also.” During his trial
testimony, Lopez maintained that he said he would leave her, but
denied hearing Shannon say that she would leave him.
   ¶ 5 Lopez testified that as he was making a left hand turn, he
heard the sound of breaking glass. Lopez turned to see that Shannon


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was “slumped forward.” Lopez tried to turn the truck around to take
Shannon to a hospital, but crashed into another car and then into a
fence. Witnesses saw Lopez jump out of the truck and lie on the
ground while saying “sorry mommy” or “sorry mama” repeatedly.
   ¶ 6 Shannon had been shot in her left ear. When police arrived,
they found that Shannon’s legs were crossed at the ankles.
Shannon’s right hand—Shannon was right handed—was hidden in
her jacket sleeve. Officers found a gun and holster on the floor of the
driver’s side of the cab. 1
   ¶ 7 Months before she died, Shannon sent a text message to
Lopez expressing a desire to end her life. Shannon had spoken to her
son, M.N., about suicide in the past. A month before she died,
Shannon had threatened to shoot herself.
   ¶ 8 The State charged Lopez with criminal homicide murder.
Because the medical examiner’s report ruled out the possibility that
the gun had accidentally discharged, the key dispute was who fired
the shot that killed Shannon.
    ¶ 9 The physical evidence was inconclusive. The medical
examiner testified that the location of the wound was “atypical” for a
suicide, but that he could not determine the manner of death
conclusively. Examiners found gunshot residue on Lopez’s hand, but
all that could be gleaned from this was that Lopez was “in proximity
when [the] firearm was discharged.” A blood spatter analyst was
unable to conclude whether Shannon’s wound was self-inflicted.
    ¶ 10 To prove that Shannon did not shoot herself, the State
offered expert testimony from Dr. Craig Bryan, a clinical
psychologist. Dr. Bryan specializes in the treatment of suicide
patients using the Fluid Vulnerability Theory of Suicide (FVTS).
FVTS is the “most commonly used theory and approach to
developing treatment and understanding suicide risks.” The theory
is based on “scientific evidence gained from clinical care of suicide
patients as well as multidisciplinary scientific efforts
internationally.”

_____________________________________________________________
   1There was some dispute about whether witnesses had moved
Shannon’s body and if the gun and holster were moved when the car
was towed. Because these disputes are not relevant to our analysis,
we do not discuss them here.



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    ¶ 11 FVTS assesses two different types of risk: baseline and
acute. Predispositions—including demographic factors, “[d]ifficulty
managing emotions,” and “history of psychiatric disorders”—
increase the baseline risk, meaning that “[i]ndividuals with many
predispositions . . . . experience more suicidal crises more often and
take longer to ‘recover’ from crises and discrete periods of emotional
distress.” This baseline risk can be “offset[]” by “protective factors,”
such as an optimistic outlook, a strong support network, or
motherhood. “Acute risk,” on the other hand, “entails the emotional,
physiological, behavioral, and cognitive factors associated with an
active suicidal episode.” Taking baseline and acute risk together, the
model posits that “a triggering event will only lead to suicide among
individuals with sufficient [baseline risk].” When applying FVTS, Dr.
Bryan conducts interviews with his patients. Sometimes, Dr. Bryan
employs testing “designed to . . . identify the risk and protective
factors in a way that might not be obvious to the respondent.”
    ¶ 12 Lopez challenged the admission of Dr. Bryan’s testimony
on various grounds, including that it was neither helpful nor
reliable. The district court admitted “Dr. Bryan’s opinion as to
whether Shannon Lopez’s behavior prior to her death was
inconsistent with suicide” into evidence. The district court excluded,
however, “[a]ny testimony that Dr. Bryan’s opinions are definitive or
based on scientific certainty.”
   ¶ 13 In response to Dr. Bryan’s testimony, the defense called an
expert who testified that Shannon’s death was a “classic suicide,”
noting that “[t]ypically someone doesn’t hold their head still while
you shoot them.”
    ¶ 14 The State also sought to offer evidence of several prior acts
involving Lopez threatening a family member with a gun and/or
pointing a gun at their head. The court allowed the admission of two
of those acts. 2 The first described Lopez and Shannon talking with
their coworker about how to kill effectively. To demonstrate, Lopez
pulled out a gun and pointed it at Shannon’s head near her left ear.
The district court found that “the act of someone describing the best
place to shoot someone, in fact even demonstrating that, is very


_____________________________________________________________
   2The district court rejected the State’s argument that those acts, as
well as the others, could be admitted under the doctrine of chances.



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relevant to the identification of someone who may have done that at
another time.”
    ¶ 15 The second prior act involved an argument Lopez had with
an ex-wife where he “hit her in the stomach,” “pointed a gun at her
head,” and verbally threatened to kill them both if she ever sought a
divorce. The district court reasoned this evidence was admissible
because “the identity of the shooter is the issue, and therefore, it is
relevant to that, what he did to a prior spouse, under a prior
circumstance when she indicated she was leaving him.”
   ¶ 16 The jury found Lopez guilty of murder. The jurors
additionally found Lopez had used a dangerous weapon. The
district court sentenced Lopez to sixteen years to life. Lopez appeals.
             ISSUES AND STANDARD OF REVIEW
    ¶ 17 Lopez first argues that Dr. Bryan’s testimony should not
have been admitted because, among other things, it lacked an
adequate foundation. Next, Lopez contends that the character
evidence should not have been admitted because it was not relevant,
not offered for a proper purpose, and was prejudicial. Lopez also
argues cumulative error and claims there was insufficient evidence
to convict him.
    ¶ 18 We review the admission of expert testimony and character
evidence under an abuse of discretion standard. State v. Maestas, 2012
UT 46, ¶ 154, 299 P.3d 892; State v. Thornton, 2017 UT 9, ¶ 56, 391
P.3d 1016. Because we agree with Lopez on the first two grounds,
and conclude they constitute harmful error, we do not reach the
issues of cumulative error or sufficiency of the evidence.
                             ANALYSIS
      I. The District Court Abused Its Discretion by Admitting
      Dr. Bryan’s Testimony Without an Adequate Foundation
                       Establishing Its Reliability
    ¶ 19 Lopez challenges the admissibility of Dr. Bryan’s
testimony. Dr. Bryan used the Fluid Vulnerability Theory of Suicide
(FVTS) to assess the likelihood that Shannon had taken her own life.
Lopez asserts that the FVTS testimony was not helpful, that it
impermissibly addressed the ultimate issue, and that there was not
an adequate threshold showing of its reliability. We agree with
Lopez that the State did not make the threshold showing of FVTS’s
reliability when applied to a decedent, and that therefore the district




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court abused its discretion by admitting Dr. Bryan’s testimony under
Utah Rule of Evidence 702. 3
    ¶ 20 We rely on our district court judges to act as
“gatekeeper[s]” to “screen out unreliable expert testimony.” UTAH R.
EVID. 702 advisory committee’s note. This requires our judges to
view proposed expert testimony with “rational skepticism.” Id. Utah
Rule of Evidence 702 details the framework a judge should employ
to perform her gatekeeping function. First, the judge must determine
that the expert is qualified “by knowledge, skill, experience, training,
or education” and that the proposed expert testimony will “help the
trier of fact to understand the evidence or to determine a fact in
issue.” UTAH R. EVID. 702(a). Second, the judge inquires as to
whether the “[s]cientific, technical, or other specialized knowledge”
underlying the expert’s testimony meets a threshold showing that
the “principles or methods . . . underlying . . . the testimony (1) are
reliable, (2) are based on sufficient facts or data, and (3) have been
reliably applied to the facts.” Id. 702(b).
    ¶ 21 The threshold showing is satisfied if “the underlying
principles or methods, including the sufficiency of facts or data and
the manner of their application to the facts of the case, are generally
accepted by the relevant expert community” or if the testimony
meets a threshold showing of reliability. Id. 702. If the expert
testimony clears those hurdles, the district court may admit the
evidence. And we afford the district court discretion in its decision to
admit or exclude expert testimony. State v. Maestas, 2012 UT 46,
¶ 122, 299 P.3d 892. The district court abuses its discretion when “no
reasonable person would take the view the trial court adopted.” Id.
          A. There Was No Threshold Showing that the Fluid
         Vulnerability Theory of Suicide Is a Reliable Method to
           Evaluate the Risk of Suicide of a Deceased Person
    ¶ 22 Although Lopez raises several challenges to Dr. Bryan’s
testimony, we focus our analysis on the question of threshold
reliability. As noted above, the State could have met this threshold
showing by demonstrating that the method Dr. Bryan used is
“generally accepted by the relevant expert community” or by
establishing that the principles underlying his testimony are
_____________________________________________________________
   3Because we resolve this matter under Utah Rule of Evidence 702,
we do not reach Lopez’s alternative arguments.



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“reliable, . . . based upon sufficient facts or data, and . . . have been
reliably applied to the facts.” UTAH R. EVID. 702.
   ¶ 23 The State attempted to meet its rule 702 burden with
evidence that FVTS 4 is generally accepted in the psychological
community. 5 When asked if FVTS was generally accepted, Dr. Bryan
_____________________________________________________________
   4 FVTS assesses an individual’s risk for suicide based on his or
her baseline and acute risk. Baseline risk factors include genetics,
demographics, and “a history of suicidal behavior,” among other
things, and determine someone’s risk of suicide over time. Acute risk
is “fluid” and takes into account someone’s physical and mental
health as well as her thought process and emotional state. Protective
factors—parenting, a sense of purpose, and a strong support system,
to name a few—also play an important role because they mitigate
someone’s risk factors.
   5  The parties argue that a number of cases should inform our
analysis. See Halvorsen v. Plato Learning, Inc., 167 F.App’x. 524 (6th
Cir. 2006); State v. Guthrie, 627 N.W.2d 401 (S.D. 2001); Foster v. Globe
Life & Accident Ins. Co., 808 F. Supp. 1281 (N.D. Miss. 1992); Bethley v.
Keller Constr., 836 So. 2d 397 (La. Ct. App. 2002). These cases are not
on point because they discuss psychological autopsies. Psychological
autopsies seek to establish the cause of a person’s death. For
example, in Guthrie, the court allowed testimony that “included an
account of the common factors for persons at risk for suicide [and] a
comparison of those factors to [that] case.” 627 N.W.2d at 414. And,
although the court took issue with an expert’s conclusory opinion,
the court permitted the expert to testify concerning the “typical
characteristics or profiles of suicidal persons” and whether the
decedent “met a suicidal profile.” Id. at 415–17.
    The cases addressing psychological autopsies are inapposite here.
Although the testimony itself is similar, the method is not. Both
parties have distinguished FVTS from a psychological autopsy. As
Dr. Bryan said during the preliminary hearing,
       A psychological autopsy has many similarities to the
       methods I’ve used; however, it’s different in that the
       psychological autopsy is often intended to arrive at a
       psychiatric diagnosis for the decedent. In this case my
       purpose was not to try to diagnosis the individual. I
       was trying to make a determination about the
       likelihood of suicide.
                                                         (continued . . .)


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replied that it was, elaborating that “when you look particularly at
researchers who are treatment developers, [and] they are testing
therapies to reduce suicidal behaviors, this particular model is the
leading and the most commonly used theory and approach to
developing treatment and to understanding suicide risks.” (Emphasis
added). And, “[w]hen . . . use[d] [for] treatment[] . . . based on the
principles contained within the theory, [there is] typically [a] 50 to 60
percent reduction[] in suicidal behaviors.”
    ¶ 24 Dr. Bryan’s testimony addressed the acceptance of FVTS as
a tool to evaluate patients. The foundation the State attempted to lay
did not speak to the precise question the district court needed to
answer: Is FVTS generally accepted as a means of assessing the risk
of suicide in someone who has passed away? With respect to that
question, Dr. Bryan provided no information on how effective the
theory was at determining suicide risk of those who are deceased,
nor did he indicate whether there was any peer-reviewed literature
regarding this application. Indeed, it appears that Dr. Bryan never
even addressed whether FVTS had ever been used to assess the risk
of someone who had died.
    ¶ 25 The district court nevertheless concluded that the FVTS
“methodology . . . is generally accepted in the psychological
community.” As suggested above, the problem with this conclusion
is that the State placed no evidence before the court that FVTS was
generally accepted in the psychological community for the purpose
of determining whether any particular death was the result of
suicide. The evidence before the district court demonstrated that
FVTS is based on “scientific evidence gained from clinical care of
suicide patients as well as multidisciplinary scientific efforts
internationally.” (Emphasis added). Dr. Bryan’s published works on
suicide are similarly based on “[c]linical trials, epidemiological
research as well as laboratory-based research.”
   ¶ 26 Demonstrating that FVTS was generally accepted to assess
suicide risk in live patients is not the same as demonstrating that it is


Because our analysis rests on the reliability of a method other than a
psychological autopsy, and none of those cases otherwise speak to
the use of FVTS to assess the likelihood of suicide, we assess FVTS’s
reliability without reference to the cases that have analyzed the
admission of psychological autopsy evidence.



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generally accepted to gauge whether a decedent died by her own
hand. On the record before the district court, there were reasons to
question whether FVTS is reliable as a post-mortem tool. Dr. Bryan
referenced interviews with his patients to assess their suicide risk.
And Dr. Bryan’s description of FVTS demonstrated its reliance on
accurately identifying baseline and acute factors. Dr. Bryan never
discussed whether he could accurately identify those factors in
someone he had never interviewed, let alone someone who was
incapable of being interviewed. For example, Dr. Bryan testified that
Shannon’s acute risk for suicide was low because of her positive
outlook, social engagement, and improved mood. Dr. Bryan never
testified, however, that he could accurately assess those risks
without actually interviewing Shannon. 6
    ¶ 27 The State argues that the “question of whether someone is
at risk to commit suicide is the same question as whether someone
was at risk—it merely focuses on a different time.” And the State
may be correct about that, but the question for the district court was
whether the difference in that timing undercut FVTS’s reliability. We
do not rule out the possibility that FVTS could be used to determine
whether a decedent was at risk of suicide, but the State needed to lay
a foundation that it could. It failed to do so.
    ¶ 28 The district court held that FVTS was generally accepted,
but did not draw a distinction between how FVTS had been used to
gain general acceptance in the psychological community and the
manner in which Dr. Bryan proposed to use it here. On the record
before it, the district court abused its discretion by admitting the
testimony as the product of a generally accepted scientific method.
      ¶ 29 The State could have also satisfied the threshold showing
by offering evidence that the “principles or methods . . . underlying
. . . the testimony (1) are reliable, (2) are based on sufficient facts or
_____________________________________________________________
   6  Or, indeed, anyone. It does not appear that Dr. Bryan
interviewed anyone in connection with his opinion, opting instead to
rely on materials the State selected for him. These materials included
transcripts of police-conducted interviews, police reports, the
medical examiner’s report, Shannon’s medical records, cell phone
records, and something Shannon posted on Facebook on the day she
died. Dr. Bryan testified that the interviews gave him all the
information that he needed, but this statement was not sufficient to
lay a foundation for this seemingly novel use of FVTS.



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data, and (3) have been reliably applied to the facts.” UTAH R. EVID.
702(b). For the same reasons we have just discussed, we conclude
that there was an insufficient basis for the district court to conclude
that FVTS is reliable when used to assess suicide risk post-mortem. 7
          B. Dr. Bryan’s Testimony Likely Swayed the Jury and
                     Was Therefore Harmful Error
    ¶ 30 “[A]n [evidentiary] error requires reversal only if there is ‘a
reasonable likelihood of a more favorable result’ for the accused had
the error not occurred.” State v. Tuttle, 780 P.2d 1203, 1213 n.12 (Utah
1989) (citation omitted). “A reasonable likelihood of a more
favorable outcome exists if our confidence in the result of the trial is
eroded.” Id. (citation omitted). Because the admission of Dr. Bryan’s
testimony has eroded our confidence in the jury’s verdict, we
conclude that the error was harmful.
    ¶ 31 As the State said multiple times, this case hinged on
whether Lopez or Shannon fired the weapon. Some evidence pointed
to Lopez, including the fact that Shannon was right-handed and was
shot on the left side of her head. Lopez “admitted . . . that [Shannon]
was not familiar with [the gun].” The gun and holster were also
found on the driver’s side of the car (where Lopez had been) and
Shannon’s right hand remained hidden in her sleeve.
    ¶ 32 Other evidence suggested Shannon took her life. An expert
testified that this was a “classic suicide” and “[t]ypically someone
doesn’t hold their head still while you shoot them.” 8 There was also
evidence that Shannon was experienced with firearms and could
shoot with her left hand, albeit with some difficulty. And there was
evidence that Shannon had mentioned suicide on occasion.
   ¶ 33 Given this conflicting evidence, Dr. Bryan’s opinion that
Shannon’s death was inconsistent with suicide likely swayed the
jury. It was the strongest statement the State introduced to
demonstrate that Shannon’s death was not a suicide. Without Dr.
Bryan’s testimony, the most direct evidence speaking to whether
_____________________________________________________________
   7 Lopez also contends that Dr. Bryan’s opinion was not based on
sufficient facts and data and that he did not reliably apply FVTS to
the facts of the case. We offer no opinion on these contentions.
   8  The State has not challenged the admission of this expert’s
testimony.



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Shannon had killed herself was a State expert opining that the
location of the wound was “atypical” for suicide.
   ¶ 34 Dr. Bryan’s testimony drove to the heart of the matter such
that we conclude that the admission of Dr. Bryan’s testimony on the
foundation presented was prejudicial.
      II. The District Court Abused Its Discretion by Admitting
          Evidence of the Prior Acts to Attempt to Prove that
                        Lopez Fired the Weapon
    ¶ 35 Lopez also argues that the district court abused its
discretion by admitting evidence of prior instances of Lopez pointing
guns at family members. The State initially sought the admission of
six instances where Lopez pointed a gun at a member of his family.
The State argued that this evidence could be admitted for a number
of non-character purposes, including lack of mistake, knowledge,
intent, and identity. Lopez countered by arguing, among other
things, that the State was seeking to admit the testimony solely to
show that he had a propensity to point firearms at family members.
    ¶ 36 The district court excluded four of the prior acts but
allowed the State to introduce evidence that Lopez had discussed the
best way to commit suicide or kill someone, and that in the course of
that discussion, he had placed his gun behind Shannon’s left ear. The
district court also admitted testimony that during an argument with
a former spouse, Lopez had pointed a gun at her and suggested that
if she were to leave him, he would kill them both. The district court
reasoned that both of these acts could be admitted for the non-
character purpose of showing “the identity of the shooter.”
    ¶ 37 Lopez challenges the district court’s decision to admit these
prior acts. Specifically, Lopez argues that: (1) admission of the prior
acts was not relevant to a proper non-character purpose and (2) the
probative value of such evidence was substantially outweighed by
its ability to unfairly prejudice the jury.
   ¶ 38 Generally, “[e]vidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a
particular occasion the person acted in conformity with the
character.” UTAH R. EVID. 404(b)(1). We recognize an exception to
that rule where prior acts are “relevant[,] offered for a genuine,
noncharacter purpose,” and not unduly prejudicial. State v. Lucero,
2014 UT 15, ¶ 13, 328 P.3d 841, abrogated on other grounds by State v.
Thornton, 2017 UT 9, 391 P.3d 1016. “[G]enuine, noncharacter
purpose[s],” id., include but are not limited to “proving motive,


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opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident.” UTAH R. EVID. 404(b). The district
court admitted the two prior acts reasoning that they were relevant
to show the identity of the person who fired the weapon.
    ¶ 39 We have generally upheld the admission of prior acts to
show identity in two circumstances. First, we have upheld the
admission of prior acts to prove identity because the evidence
reveals that the defendant has a modus operandi. See Lucero, 2014 UT
15, ¶ 15. In this context, we have spoken of modus operandi as an
“intermediate inference” that demonstrates identity. Id. (“In seeking
admission of prior acts for the purpose of proving ‘identity,’ parties
are most often actually seeking to admit evidence of an intermediate
inference, such as modus operandi, that bears on the ultimate issue
of identity.” (footnote omitted)).
    ¶ 40 To use a prior act to show modus operandi, the prior act
must bear a “very high degree of similarity” to the charged act and
demonstrate “a unique or singular methodology.” Id. (citation
omitted). For example, in Lucero, we concluded that a prior act of
child abuse was “remarkably similar” to the charged crime where a
mother was accused of fatally injuring her toddler. Id. ¶¶ 1–8, 16.
“Both injuries occurred along the spinal column and were caused by
the spine being bent unnaturally.” Id. ¶ 16. The two acts also
“occurred within days of each other.” Id. Because of the similarity of
the injuries, methods, and “temporal proximity,” we held that the
evidence was properly admitted as evidence of a modus operandi.
Id.
    ¶ 41 We have also affirmed the introduction of 404(b) evidence
where the perpetrator had a particular method of robbing Payless
Shoe stores. State v. Decorso, 1999 UT 57, ¶¶ 27–28, 993 P.2d 837,
abrogated on other grounds by Thornton, 2017 UT 9. Each time, the
accused pretended to be a customer and waited until the store was
closed and locked to rob it. Id. ¶ 27. The victim in both instances was
a female store clerk. Id. The perpetrator took two pairs of shoes the
first time, and had three pairs ready to take the second time. Id. The
accused also wore or planned to wear rubber gloves in both
instances and cut or removed the telephone cord. Id. Based on these
similarities, we concluded that the “trial court did not abuse its
discretion in concluding that these were ‘signature-like’ crimes.” Id.
   ¶ 42 In contrast, here, the admitted events are not similar
enough to demonstrate a modus operandi. To find that the prior



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incident of Lopez pointing a gun at Shannon to demonstrate how to
kill effectively was admissible, the court emphasized “the similarity
between the position of the gun as demonstrated and the position of
the gun in the crime that was committed.” And the district court was
correct that the positioning was indeed similar: in the prior act and
the crime, the gun was pointed at or near Shannon’s left ear. But the
commonality of the positioning of the gun on a single occasion is not
enough to establish that Lopez had a modus operandi when it came
to pointing a gun. The similar positioning does not establish a
“signature” like the combination of commonalities in Decorso did;
pointing a gun in an approximate location is not the same as entering
the same chain of shoe stores right before closing and using the same
method to rob it. See id. ¶¶ 27–28. There simply are not enough
factual similarities between the gun pointing incidents to constitute a
modus operandi.
    ¶ 43 The other admitted act—Lopez threatening to shoot his ex-
wife if she left him—is not sufficiently similar to the alleged behavior
to be considered a modus operandi. The district court noted that the
“similarities between the crimes are very close” because both of
them involved “[p]ointing a gun at a spouse in the context of . . . the
discussion that the spouse was leaving.” But threatening one’s wife
with a gun on two occasions is not a “unique or singular
methodology.” Lucero, 2014 UT 15, ¶ 15 (citation omitted). Indeed,
neither the context of the act nor its execution is similar enough to
the charged conduct to suggest a modus operandi.
    ¶ 44 We have also upheld the admission of 404(b) evidence
when it supported an intermediate inference that tied the defendant
to the charged crime. For example, in State v. Reece, we allowed prior
act evidence “showing that [the defendant] had access to the type of
gun investigators determined was likely the murder weapon.” 9 2015
UT 45, ¶ 58, 349 P.3d 712. The evidence was “offered for the
noncharacter purpose of identi[ty.]” Id. The defendant had “claimed
that he could not have committed the murder because he did not
even have access to [the murder weapon] when the victim was
killed.” Id. The State was able to rebut this defense by demonstrating
that the defendant had stolen the firearm and therefore had access to
the murder weapon. Id.

_____________________________________________________________
   9Intermediate inferences include access to the murder weapon,
motive, or common plan. 1 MCCORMICK ON EVID. § 190 (7th ed. 2016).



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    ¶ 45 Similarly in State v. Shaffer, we permitted prior act evidence
that the defendant had stolen a wallet. 725 P.2d 1301, 1308 (Utah
1986). The State used the evidence to show access to the murder
weapon because the defendant had used the identification in the
stolen wallet to purchase the gun ten days prior to the murder. Id. By
demonstrating access to the identification, and thus the murder
weapon, the State sought to “establish[] the identity of the defendant
as the person in possession of the gun that killed [the victim].” Id.
    ¶ 46 And our court of appeals has also affirmed use of evidence
to show identity by linking the defendant to the murder weapon. In
State v. Clark, the court permitted evidence of a prior shooting where
the same gun was used in the charged crime. 2014 UT App 56,
¶¶ 21–22, 322 P.3d 761. The court reasoned that, because the
defendant
       assert[ed] that he was not present at the [subsequent]
       shooting, identity of the perpetrator was clearly at
       issue in this case. . . . Evidence that [the] [d]efendant
       was carrying the . . . handgun when he arrived at the
       scene of the [prior] shooting, that he displayed a
       familiarity with the handgun’s operation, and that he
       actually used the handgun in that incident all tend to
       show that the handgun was actually his.
Id. ¶ 22. Therefore, the use of the gun in the prior shooting tended to
show that the defendant was the perpetrator in the later shooting by
demonstrating that he likely had access to the gun. Id.
    ¶ 47 The evidence at issue here did not support any
intermediate inference of identity like those in Reece, Shaffer, or Clark.
The State did not, for example, seek to show the identity of the
shooter with evidence that Lopez had access to a firearm like the one
that killed Shannon. Rather, the district court said it would admit the
evidence that Lopez had pointed a gun at Shannon to prove
“identification” and the evidence that Lopez had aimed a firearm at
an ex-wife and threatened to kill her to show the “identity of the
shooter.” In other words, the district court admitted the evidence
because it tended to show that Lopez had in the past pointed guns at
family members. And the fact that he had done this in the past
suggested that he had done it on the night Shannon died. This is
nothing more than the propensity evidence 404(b) excludes, and the
district court abused its discretion by admitting it. See 1 MCCORMICK




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ON  EVID. § 190 (7th ed. 2016) (“[T]he need to prove identity should
not be, in itself, a ticket to admission.”).
    ¶ 48 On appeal, the State raises an argument that the district
court rejected below. The State argues that the district court could
have admitted the evidence because it established identity through
the doctrine of chances. The district court rejected that argument,
and the State did not cross-appeal that determination. As such, the
State asks us to affirm the district court on an alternative ground
apparent from the record. Bailey v. Bayles, 2002 UT 58, ¶ 20, 52 P.3d
1158 (“[A]n appellate court may affirm the judgment appealed from
if it is sustainable on any legal ground or theory apparent on the
record.”). We decline the State’s invitation, as it is not apparent from
the record that the district court abused its discretion by refusing to
admit the evidence through the doctrine of chances.
    ¶ 49 As an initial matter, we have not previously applied the
doctrine of chances to show identity. We have held that the doctrine
of chances can “rebut a charge of fabrication.” State v. Verde, 2012 UT
60, ¶ 47, 296 P.3d 673, abrogated on other grounds by Thornton, 2017 UT
9. We have also concluded that the doctrine can be used to show the
requisite mens rea or lack of consent in a rape case. State v. Lowther,
2017 UT 34, ¶¶ 25–26, 398 P.3d 1032. And we have noted that the
doctrine might be used for other purposes, including to “rebut
defenses based on mistake, coincidence, . . . accident,” and intent. Id.
¶ 23. But we have not applied the doctrine to establish identity. We
need not resolve whether such application would be proper because
the doctrine is inapplicable to the set of facts presented here.
    ¶ 50 The doctrine of chances is “a theory of logical relevance
that ‘rests on the objective improbability of the same rare
misfortunate befalling one individual over and over.’” Verde, 2012
UT 60, ¶ 47 (citation omitted); See also Edward J. Imwinkelried, An
Evidentiary Paradox: Defending the Character Evidence Prohibition by
Upholding a Non-Character Theory of Logical Relevance, the Doctrine of
Chances, 40 U. RICH. L. REV. 419, 448 (2006) (“The claim is based on
the disparity between the expected and actual values: How many
incidents would we expect the average person to be involved in, and
how many incidents was the defendant involved in?” (footnote
omitted)).
    ¶ 51 United States v. Woods ably illustrates the doctrine’s
application. 484 F.2d 127 (4th Cir. 1973). There, the defendant was
tried for the murder of a child in her care. Id. at 128. The child died
from respiratory problems, though when taken to the hospital for


                                  15
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                         Opinion of the Court


those same troubles on prior occasions, the doctors sent him home
because he was perfectly healthy. Id. at 129–30. The State’s expert
testified that there was a three in four chance that the child was
smothered as opposed to dying from natural causes. Id. at 130. In
order to prove that Woods smothered the child, the State presented
evidence that nine other children in the defendant’s care suffered
from twenty similar respiratory episodes, and that seven of those
children died. Id. The court concluded that the evidence was
admissible     because,   when        “considered collectively, . . . an
unmistakable pattern emerges. That pattern overwhelmingly
establishes defendant’s guilt.” Id. at 135.
    ¶ 52 Much like the unexpected death of otherwise healthy
children, other doctrine of chances cases involve rare events
happening with unusual frequency. See id. In a classic English case,
for example, the defendant was convicted of murdering his wife,
who was found dead in her bathtub. Rex v. Smith, 11 Crim. App. 229,
84 L.J.K.B. 2153 (1915). The court permitted evidence that two other
wives of the defendant had also died in their bathtubs “under nearly
the same circumstances.” Id. Similarly, in United States v. York, the
Seventh Circuit allowed evidence of a prior crime under the doctrine
of chances. 933 F.2d 1343, 1349–52 (7th Cir. 1991), overruled on other
grounds by Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999). The
defendant was tried for insurance fraud after taking out policies on
his colleague and their bar. Id. at 1345–47. Two homemade
explosives destroyed the bar; his colleague was also killed, though
the evidence was unclear regarding whether she had been killed
before the explosion. Id. at 1346. The court permitted the State to
introduce evidence that the defendant had taken out a policy on his
wife and later killed her to demonstrate that the defendant intended
to defraud the insurance company when he took out the policy
(which was required to establish the crime). Id. at 1349–50.
    ¶ 53 Here, the State offered several prior acts under the doctrine
of chances, including the two that were admitted. One of these prior
acts involved Shannon: the incident described in detail above. Two
involved Lopez’s ex-wife: the incident described above and another
where Lopez pointed a gun at her head while she was in a closet.
The other three involved Lopez’s son, K.L. K.L. would have testified
that after an altercation over pizza, he bit Lopez which caused Lopez
to run to his gun safe to obtain a firearm which he then racked as




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                         Opinion of the Court

K.L. ran downstairs. 10 K.L. would have also testified that Lopez once
pointed a gun at his head and tapped his head with the weapon.
And K.L. would have testified that “the family would routinely
point guns at one another in an ‘educational’ context.”
    ¶ 54 We have opined that for evidence to be admitted under the
doctrine of chances, it must meet four foundational requirements:
materiality, similarity, independence, and frequency. Verde, 2012 UT
60, ¶¶ 57–61; Lowther, 2017 UT 34, ¶ 40 n.66 (“We note that [Verde’s]
foundational requirements are requirements within the context of
rule 404(b). A court must find that each of the requirements has been
satisfied to admit doctrine of chances evidence for purposes of a
proper, non-character statistical inference.”). The evidence the State
sought to introduce fails to clear this hurdle.
   ¶ 55 To be material, “[t]he issue for which the uncharged
misconduct evidence is offered ‘must be in bona fide dispute.’”
Verde, 2012 UT 60, ¶ 57 (emphasis omitted) (citation omitted). We
agree with the State that the shooter’s identity is in “bona fide
dispute.”
   ¶ 56 But the district court could have legitimately questioned
the independence of the prior acts. See id. ¶ 60. The independence
requirement helps ensure there is no collusion between the victims
and that the victims have not influenced each other’s recollections of
what occurred. All but one of the prior acts involved either K.L. or
Lopez’s ex-wife (K.L.’s mother). And K.L. and Lopez’s ex-wife lived
together for over a year after all five of the prior acts involving them
occurred. This provided ample opportunity for ex-wife and K.L. to
discuss the incidents and compromise the independence of their
recollections.
    ¶ 57 The remaining two factors, similarity and frequency,
interact with each other to become a safeguard against the doctrine
of chances becoming a work-around for the admission of otherwise
improper propensity evidence. For doctrine of chances purposes,
frequency does not mean just how many times a prior act has

_____________________________________________________________
   10  K.L.’s testimony was confused regarding whether Lopez
pointed a firearm at him. At one point, K.L. stated that he “didn’t see
[Lopez] point the gun at [him],” but later said—regarding what
seems to be the same incident—that Lopez aimed the gun at him at
close range.



                                  17
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                         Opinion of the Court


occurred, but whether “[t]he defendant [has] been accused of the
crime or suffered an unusual loss ‘more frequently than the typical
person endures such losses accidentally.’” Id. ¶ 61 (emphasis
omitted) (citation omitted). Similarity assumes importance in this
inquiry because a district court could logically conclude that the
more similarities repeated events share, the less likely they are to
occur frequently by accident.
   ¶ 58 And here, Lopez’s prior acts did not share a great deal of
similarity. Although each involved Lopez drawing a firearm in the
presence of family members, they happened in very different
contexts. The two incidents where Lopez threatened his ex-wife with
a gun are the most similar to one another but because his ex-wife
“could not recall the [closet] incident with great detail[,]” the district
court may not have been well-positioned to accurately assess the
degree of similarity of those events. And the prior act in which K.L.
thought he heard Lopez rack a gun bears some resemblance to those
two. But the other prior acts describe different actions. Two of the
other events—pointing a gun to “educat[e]” his family and pointing
a gun at Shannon in front of a co-worker to show the most effective
way to kill, do not bear great similarity to the instances where Lopez
pointed a firearm during a domestic argument. The dissimilarity
between the actions makes it difficult to see how the district court
would have abused its discretion in finding that these prior acts
were not suitable candidates for admission under the doctrine of
chances.
   ¶ 59 And the lack of similarity made it more difficult for the
State to meet its burden of demonstrating frequency. 11 Had the prior
_____________________________________________________________
          11 The proponent must establish that, together with
       the uncharged incident, the charged incident would
       represent an extraordinary coincidence. In some cases,
       that will be obvious. [Rex] is a case in point. In a fact
       situation such as [Rex], the jury hardly needs an
       expert’s testimony to appreciate that, on average,
       finding one’s spouse drowned in the family bathtub is
       at most a ‘once in a lifetime’ experience. In other cases,
       though, the proponent may need to introduce
       independent evidence to establish the ordinary
       incidence of the type of event in which the defendant
       was involved.
                                                        (continued . . .)


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                        Opinion of the Court

acts been multiple incidents of Lopez shooting a person by accident,
or several occasions of placing a firearm to someone’s ear during a
fight, the district court possibly could have concluded that those
actions would not occur repeatedly by accident. 12 But on these facts,
the district court could readily conclude that Lopez had not suffered
the “same rare misfortune” repeatedly. 13 Verde, 2012 UT 60, ¶ 47
(citation omitted).
    ¶ 60 Because of this, it is not apparent on the record that the
district court abused its discretion by refusing to allow this evidence
in under the doctrine of chances. Bailey, 2002 UT 58, ¶ 20; Verde, 2012
UT 60, ¶¶ 57–61.
   ¶ 61 Although the 404(b) evidence was admitted in error, “an
[evidentiary] error requires reversal only if there is ‘a reasonable



Imwinkelried, An Evidentiary Paradox, supra ¶ 50, at 437
(footnotes omitted).
   12 What distinguishes the doctrine of chances from character
evidence is the intermediate inference the jury makes. With character
evidence, the jury would infer from the prior misconduct that the
defendant must have “bad character,” and thus must be guilty
because the defendant “acted ‘in character.’” Imwinkelried, An
Evidentiary Paradox, supra ¶ 50, at 426. Using the doctrine of chances,
however, the jury makes a decision about the weight of prior act
evidence based on “the objective improbability of so many
[incidents].” Id. at 436. Similarity and frequency are both important
inputs for determining this improbability; the less similar the acts,
the more probable it is that they would occur in the general
population. And the less frequently they occur in the general
population, the more it is “objective[ly] improbabl[e]” that so many
incidents would occur randomly. See id. Thus, to determine
probability, similarity and frequency may be examined in tandem.
   13 “If the judge has no satisfactory basis for determining the
frequency of such accidental occurrences among the general
populace, the judge may not admit the uncharged misconduct
evidence under the aegis of the doctrine of chances.” Edward J.
Imwinkelried, The Use of Evidence of An Accused’s Uncharged
Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf
the Character Prohibition, 51 OHIO ST. L. J. 575, 592 (1990). There was
no such basis here.



                                  19
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                        Opinion of the Court


likelihood of a more favorable result’ for the accused had the error
not occurred.” State v. Tuttle, 780 P.2d 1203, 1213 n.12 (citation
omitted). We have concluded that admission of less probative
character evidence was harmless in State v. Hamilton. 827 P.2d 232,
233 (Utah 1992). The prior act evidence there concerned the
defendant physically abusing his girlfriend. Id. at 239–40. Even
without the prior act, the remaining evidence was strong: the
defendant was seen with the victim in his truck after she went
missing, her hairs were found in his truck, and his fingerprints were
found on beer cans near the location he left the body. Id. at 234–35.
As a result, we held the admission of the prior act evidence
harmless. Id. at 233.
    ¶ 62 In State v. Webster, the court of appeals reversed a
conviction based upon the improper admission of character evidence
because—after omitting the impermissible character evidence—the
court of appeals opined that it was “not confident” that the jury
would have convicted on the remaining evidence. 2001 UT App 238,
¶ 39, 32 P.3d 976. The defendant, a car salesman, was accused of
stealing a car off the lot. Id. ¶¶ 1–8. The court found harmful error
where evidence had been admitted that Webster had stolen a car
previously along with a statement from his wife confirming that he
had driven the stolen car around. Id. ¶ 39. The court found the
remaining evidence, though sufficient to convict, too insubstantial in
comparison to the erroneously admitted evidence. Id. The defendant
was employed as a salesman at the lot where the car was stolen,
someone had seen him drive off the lot with the car even though
salesmen were not allowed to do so, the defendant quit his sales job
after only two weeks, and the car was ultimately found in front of
the apartment complex that the defendant lived at. Id. ¶ 39. The
court reversed because “the damning statements . . . and his
apparent history of taking cars that did not belong to him could
easily have been the deciding factors . . . .” Id.
    ¶ 63 Here, the remaining evidence is less conclusive than that in
either Webster or Hamilton. Unlike the fingerprint and hair evidence
in Hamilton, the physical evidence here was inconclusive. Compare
Hamilton, 827 P.2d at 234–45, with supra ¶ 9. The State introduced the
testimony of the medical examiner who opined that the wound
location was strange for a suicide. But, Lopez called an expert who
testified the death was a “classic suicide.” The jury also heard
evidence that Shannon had previously discussed suicide. On this
record, there is a “reasonable likelihood” that the character evidence


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                        Opinion of the Court

could have likely swayed the jury toward conviction. Tuttle, 780 P.2d
at 1213 n.12 (citation omitted).
   ¶ 64 The error in admitting the 404(b) evidence is reversible
error because there was “a reasonable likelihood of a more favorable
result” had the character evidence been excluded. Id. (citation
omitted).
                          CONCLUSION
   ¶ 65 We conclude that Dr. Bryan’s expert testimony was
inadmissible because the State did not demonstrate that it met a
threshold of reliability as Utah Rule of Evidence 702 requires. And
because Dr. Bryan offered significant testimony on the key dispute in
a case where much of the other evidence was ambiguous, this error
was harmful. Furthermore, the district court abused its discretion in
admitting evidence of Lopez’s prior acts for the purpose of showing
identity. This error was also harmful. Accordingly, we reverse
Lopez’s conviction and remand for proceedings consistent with this
opinion.




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