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

                                2013 UT 17

                                   IN THE

      SUPREME COURT OF THE STATE OF UTAH
                            STATE OF UTAH,
                        Plaintiff and Appellant,
                                      v.
                       ANDREA BILLINGSLEY,
                        Defendant and Appellee.

                             No. 20110148
                         Filed March 15, 2013

                    Third District, West Jordan
                 The Honorable Robert W. Adkins
                          No. 091402730

                                Attorneys:
  John E. Swallow, Att’y Gen., Marian Decker, Asst. Att’y Gen.,
                  Salt Lake City, for appellant
     Dean N. Zabriskie, Rhome Zabriskie, Stephen R. Allred,
                       Provo, for appellee

  ASSOCIATE CHIEF JUSTICE NEHRING authored the opinion of the
  Court, in which JUSTICE DURHAM and JUSTICE PARRISH joined.
         JUSTICE LEE filed a concurring opinion, in which
                  CHIEF JUSTICE DURRANT joined.



  ASSOCIATE CHIEF JUSTICE NEHRING, opinion of the Court:
                          INTRODUCTION
   ¶1 A jury convicted Andrea Billingsley of one count of rape,
three counts of forcible sodomy, and three counts of forcible sexual
abuse. The trial judge arrested the judgment and granted a new trial
on all counts based on evidentiary errors and several “irregularities”
that occurred during trial. The State appealed, and sought to
reinstate Ms. Billingsley’s convictions. We hold that the evidentiary
ruling excluding evidence of the victim’s sexual predisposition was
proper and the other claimed errors and irregularities do not require
reversal because they did not prejudice Ms. Billingsley. We
                        STATE v. BILLINGSLEY
                        Opinion of the Court

therefore reverse the order granting a new trial and reinstate
Ms. Billingsley’s convictions.
                          BACKGROUND
   ¶2 Ms. Billingsley, who was in her early thirties during the time
of the incidents involved in this case, worked as an in-school
suspension (ISS) aide at West Jordan Middle School. As an ISS aide,
Ms. Billingsley was responsible for managing the ISS classroom. ISS
aides do not teach academic subjects, but they have authority over
the students in ISS. M.M., a fifteen-year-old student at the school,
was assigned to Ms. Billingsley’s classroom for suspension during
lunch. There was only one other student in the classroom that day,
who explained that although he slept through the period, he did
notice M.M. and Ms. Billingsley talking together in a “flirtatious”
manner. M.M. testified at trial that during detention, Ms. Billingsley
put a cell phone on his desk displaying a photo of her uncovered
breasts. Then, still in the classroom, she rubbed his chest and leg,
put her hand in his pants, rubbed his penis, and performed oral sex.
   ¶3 According to M.M.’s testimony, the following summer,
when he was no longer a student at West Jordan Middle School, he
called Ms. Billingsley from his friend D.P.’s cell phone. D.P. was
also fifteen years old. Ms. Billingsley asked M.M. if he and his
friend wanted to “hang out” and he said “sure.” Both boys walked
to West Jordan Middle School to meet with Ms. Billingsley. Ms.
Billingsley sent topless photos of herself to D.P.’s cell phone. After
meeting M.M. and D.P., Ms. Billingsley drove them to the park. She
suggested that they all get in the back seat. M.M. and D.P. testified
that she touched both boys’ penises, performed oral sex on D.P., and
had sexual intercourse with M.M.
   ¶4 Ms. Billingsley was charged with one count of rape, three
counts of forcible sodomy, and three counts of forcible sexual abuse.
For each count, the State was required to prove that the boys did not
consent to the sexual activity. Under Utah law, a defendant acts
without consent of the victim under two relevant circumstances:
“the victim is younger than 18 years of age and at the time of the
offense the actor . . . occupied a position of special trust in relation
to the victim,”1 or “the victim is 14 years of age or older, but younger

  1
    UTAH CODE § 76-5-406(10). “Position of special trust” is defined
as “that position occupied by a person in a position of authority,
                                                      (continued...)

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                             Cite as: 2013 UT 17
                             Opinion of the Court

than 18 years of age, and the actor is more than three years older
than the victim and entices or coerces the victim to submit or
participate.”2
   ¶5 Ms. Billingsley pleaded not guilty and testified at trial that
no inappropriate touching or sexual activity occurred. In addition
to the testimony of M.M. and D.P., evidence at trial included a
recorded conversation between M.M. and Ms. Billingsley after the
investigation had begun in which she told M.M. she wondered “who
alerted [the police]”; a conversation from jail between Ms. Billingsley
and her husband in which she said, “I’m guilty”; the testimony
of another student to whom Ms. Billingsley admitted she had sex
with M.M.; and DNA analysis linking seminal fluid in the backseat
of Ms. Billingsley’s car to D.P.
   ¶6 The jury found Ms. Billingsley guilty on all counts.
Ms. Billingsley moved for a new trial on the ground that a topless
photo from her cell phone was improperly admitted into evidence.
The trial court granted a new trial, basing the decision on several
errors. First, the judge decided that the cell phone photo was
improperly admitted under Utah Rule of Evidence 403. The judge
explained that “the photograph alone was not prejudicial enough to
warrant an arrest of judgment,” but the photograph “contributed to
the unconstitutionality of [Ms. Billingsley’s] trial due to the
cumulative errors.” The “other irregularities during trial that,”
taken together, “resulted in a violation of [Ms. Billingsley’s]
constitutional right to a fair trial” were several references to
Ms. Billingsley using the word “teacher” instead of “aide,” the
State’s comment thanking a witness for his truthfulness after he
admitted to sleeping through ISS, and the “flamboyant” head-
shaking of a State employee during Ms. Billingsley’s testimony.
   ¶7 The trial judge also revisited an order excluding testimony
from a teacher at West Jordan Middle School. The teacher would
have testified that M.M. made “inappropriate sexual advances”
toward her. The trial court determined that it should have
“allow[ed] at least a limited inquiry into [the victims’] prior sexual

   1
    (...continued)
who, by reason of that position is able to exercise undue influence
over the victim, and includes, but is not limited to, a . . . teacher.” Id.
§ 76-5-404.1(4)(h).
   2
       Id. § 76-5-406(11).

                                      3
                         STATE v. BILLINGSLEY
                        Opinion of the Court

knowledge and/or experience, and/or behavior, and . . . allow[ed]
Defendant rebuttal witnesses regarding the victims’ prior sexual
knowledge, experience, and/or behavior.”             The trial court
determined that, although generally inadmissible under Utah Rule
of Evidence 412,3 exclusion of this evidence violated Ms. Billingsley’s
right to confront witnesses against her and justified arresting the
jury verdict.4 Furthermore, the court determined that excluding this
evidence denied Ms. Billingsley a fair trial by effectively lowering
the burden of proof because, absent inquiry into “the victims’ prior
sexual behavior and/or predisposition . . . the State was relieved of
its duty to show that Defendant psychologically manipulated the
victims to instill improper sexual desires that would not have
otherwise occurred.” Psychologically manipulative conduct was
impliedly understood by the trial court to be essential to satisfy that
a defendant “entice” a victim to engage in proscribed sexual conduct
pursuant to Utah Code section 76-5-406(11).
  ¶8 The State timely appealed. We have jurisdiction under Utah
Code sections 78A-3-102(3)(b), 78A-3-102(5), and 77-18a-1(3)(f).
                     STANDARD OF REVIEW
   ¶9 We review a trial court’s ruling on a motion for a new trial
under an abuse of discretion standard.5 “At the same time, however,
we review the legal standards applied by the trial court . . . for
correctness . . . [and] the trial court’s factual findings for clear
error.”6




  3
     The rule prohibits the admission of “evidence offered to prove
that a victim engaged in other sexual behavior; or evidence offered
to prove a victim’s sexual predisposition.” UTAH R. EVID. 412(a)(1)-
(2).
  4
    See id. 412(b)(3) (providing an exception for “evidence whose
exclusion would violate the defendant’s constitutional rights”).
  5
    See State v. Pinder, 2005 UT 15, ¶ 20, 114 P.3d 551; State v. Bundy,
589 P.2d 760, 761 (Utah 1978) (“The matter of granting or refusing to
grant a new trial lies within the sound discretion of the trial judge
and we will reverse his decision thereon only where he has abused
that discretion.”).
  6
      Pinder, 2005 UT 15, ¶ 20 (internal quotation marks omitted).

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                         Opinion of the Court
                              ANALYSIS
   I. THE TRIAL COURT’S PRETRIAL RULING EXCLUDING
      EVIDENCE UNDER UTAH RULE OF EVIDENCE 412
       WAS CORRECT AND THE TRIAL COURT ABUSED
        ITS DISCRETION BY GRANTING A NEW TRIAL
   ¶10 Initially, the trial court ruled that the testimony of a teacher
regarding a prior, unrelated incident involving M.M. was
inadmissible under rule 412 of the Utah Rules of Evidence and that
none of the exceptions to that rule applied. In granting a new trial,
the court reconsidered this decision. We hold that the trial court
correctly excluded the evidence and that the fate of the excluded
evidence could not justify arresting the verdict.
       A. Excluding the Evidence Did not Violate Ms. Billingsley’s
                         Right to Due Process
   ¶11 Because at the time of the incident in Ms. Billingsley’s car
she no longer occupied a position of special trust, the State relied on
Utah Code section 76-5-406(11) to establish Ms. Billingsley’s
culpability. This provision mandates that consent is absent when
the victim is between the ages of fourteen and eighteen and the
defendant “entices or coerces the victim to submit or participate.”
Ms. Billingsley now argues that “[i]f the alleged victims were
predisposed to engage in the sexual activity, they could not
have been enticed as a matter of law.”
   ¶12 Ms. Billingsley relies on two decisions from the Utah Court
of Appeals for this proposition. State v. Gibson concerned a fourteen-
year-old victim who was a friend of Mr. Gibson’s daughter.7 On a
night when Mr. Gibson, his daughter, and the victim were all
sleeping in the same bed, Mr. Gibson asked the victim if she would
like to “cuddle,” and when she responded, “yeah,” Mr. Gibson had
sexual intercourse with her.8 A jury convicted Mr. Gibson of rape
under a theory of enticement. He argued on appeal that any
reasonable juror “would have had a reasonable doubt as to whether
or not his sexual relations with [the victim] were consensual” under
the statutory definition.9 In addition to quoting the Black’s Law


  7
      908 P.2d 352, 354 (Utah Ct. App. 1995).
  8
      Id.
  9
      Id. at 355.

                                   5
                         STATE v. BILLINGSLEY
                         Opinion of the Court

Dictionary definition of “entice,”10 Gibson includes language that
Ms. Billingsley contends renders evidence of a teenage victim’s
sexual predisposition necessary to the determination of guilt. Gibson
states, “In other words, the ‘enticement’ of a teenager by an adult
occurs when the adult uses psychological manipulation to instill
improper sexual desires which would not otherwise have
occurred.”11 The court also noted that “under the totality of the
circumstances, [Mr. Gibson’s] course of conduct can be said to have
exploited the naïve sexual awakenings of a teenage girl for his
own improper sexual gratification.”12 Seizing this language,
Ms. Billingsley argues that because the victim in Gibson was naïve
and the court of appeals held that she was enticed “under the
totality of the circumstances” when the defendant “exploited” her
“naïve sexual awakenings . . . for his own improper sexual
gratification,”13 the State in this case was required to “meet its
burden by showing that the alleged victims [M.M. and D.P.] were
sexually naïve and not sexually predisposed.” We are not
persuaded.
   ¶13 Under no plausible definition of “entice” are a teenager’s
unrelated sexual comments to third parties an element of the
offense and thus admissible under the exception to rule 412 for
“evidence whose exclusion would violate the defendant’s
constitutional rights.”14 A contrary result is not supported by the
plain language of the statute, which requires only that the defendant
“entice” the victim. Black’s Law Dictionary defines “entice” as “[t]o
lure or induce; esp., to wrongfully solicit (a person) to do
something.”15 Webster’s Third New International Dictionary defines



  10
      Id. at 356 (“Black’s Law Dictionary defines ‘entice’ as ‘to
wrongfully solicit, persuade, procure, allure, attract, draw by
blandishment, coax or seduce. To lure, induce, tempt, incite, or
persuade a person to do a thing.’” (citing Black’s Law Dictionary 531
(6th ed. 1990))).
  11
       Id.
  12
       Id. at 357.
  13
       Id.
  14
       UTAH R. EVID. 412(b)(3).
  15
       BLACK’S LAW DICTIONARY 611 (9th ed. 2009).

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                          Cite as: 2013 UT 17
                         Opinion of the Court

it as “to draw on by arousing hope or desire.”16 These definitions
suggest that inquiry under the statute should focus on the
defendant’s conduct, not the victim’s sexual experience. We need
not decide whether we endorse the concurrence to Gibson. The State
argues that the concurrence was clear in its rationale that
“Defendant enticed [the victim] simply because he was the
instigator. Nothing more is required under the statute.”17 Neither
party challenges the jury instructions in this case, which stated that
“the ‘enticement’ of a teenager by an adult occurs when the adult
uses psychological manipulation to instill improper sexual desires
which would not otherwise have occurred” and
         [e]nticement consists of words intended to cause a
         person to do something that person would not
         otherwise do. Factors one may consider are whether
         the defendant wrongfully solicited, persuaded,
         procured, allured, attracted, drew by blandishment,
         coaxed, or otherwise seduced, and did so to lure,
         induce, tempt, incite, or persuade a person to do a
         thing, or to beguile by arousing hope or desire.
Whether the jury instructions properly defined “enticement” under
the statute is a question we have not been asked to answer in this
appeal.18 We hold that under no definition, including the one
provided in the jury instructions, would the evidence of M.M.’s
unrelated comment to a teacher be necessary to the determination
of guilt and thus admissible under rule 412.19


  16
       WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 757 (1961).
  17
       Gibson, 908 P.2d at 358 (Orme, J., concurring).
  18
      The parties stipulated to the jury instructions that defined
“enticement.” We therefore do not analyze their legal sufficiency
here. We note, however, that the instructions, by requiring that
words of enticement cause a person to do something that he would
not, absent the enticement, do, seem to go too far towards inviting
a defendant to explore and expose a victim’s sexual history as a way
to undercut a contention that the sexual conduct in which he
engaged with the defendant was conduct he would not otherwise
engage in.
  19
       Ms. Billingsley argues in a footnote that if “the State is not
                                                       (continued...)

                                    7
                          STATE v. BILLINGSLEY
                         Opinion of the Court

   ¶14 The suggestion that once a teenager has engaged in other
sexual activity, he cannot be enticed defies the language and the
logic of the statute. Requiring the State to prove that the victim was
not predisposed to engage in sexual activity of any kind would
defeat the purpose of the statute, requiring an inquiry into the sexual
history of teenage victims and encouraging an accused offender to
attack a victim for being “predisposed” to sexual advances
regardless of how egregious the defendant’s conduct was. The fact
that two previous Utah cases involved victims who were sexually
inexperienced does not make the victim’s sexual naiveté an element
of the crime.20 Gibson rejected the argument that a teenage victim
should be required to affirmatively demonstrate her lack of consent,
noting that “it is precisely because young teenagers have difficulty
protesting the wrongful sexual attentions of adults that they need
the special protections of section 76–5–406(11).”21 And it is precisely
because evidence of a victim’s other sexual behavior and sexual
predisposition lacks relevance and has “an unusual propensity to




  19
     (...continued)
required to show that juvenile victims are naïve or not sexually
predisposed, [the enticement statute] could arguably be stricken as
void [because] . . . the language of the statu[t]e and the case law
interpreting the same would be contradicted and it would be
impossible to know what practices are prohibited under the statute.”
To the extent this argument is properly briefed, we find it
unpersuasive. We hold that under no definition of “entice” would
the 412 evidence in this case be admissible.
  20
     State v. Scieszka, 897 P.2d 1224 (Utah Ct. App. 1995) was issued
the same year as Gibson. In Scieszka, the court of appeals noted that
the forcible sodomy statute “is aimed at prohibiting mature adults
from preying on younger and inexperienced persons.” Id. at 1227.
The court of appeals examined the totality of the circumstances to
conclude that the conduct of the defendant in that case, who was
thirty-five, used his religious position, took the lead in the
relationship, and exploited a girl who was sexually inexperienced,
clearly fit under the definition of “entice.” Id. at 1228.
  21
       Gibson, 908 P.2d at 357.

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                          Cite as: 2013 UT 17
                         Opinion of the Court

unfairly prejudice, inflame, or mislead the jury” that rule 412 bars its
admission.22
   ¶15 Absent a definition of “entice” that requires the State to
prove that the victim was not predisposed to engage in any sexual
activity, a definition we reject, Ms. Billingsley’s Due Process Clause
argument is not persuasive. The jury in this case determined that
Ms. Billingsley enticed the two minors based on her conduct
towards them. The exclusion of the rule 412 evidence did not violate
the Due Process Clause by lowering the State’s burden of proof. The
State was required to prove beyond a reasonable doubt that Ms.
Billingsley enticed the teenage victims, not that the victims were
sexually inexperienced.
       B. Excluding the Evidence Did not Violate Ms. Billingsley’s
               Right to Confront Witnesses Against Her
   ¶16 Ms. Billingsley also argues that depriving her of “the
opportunity to cross-examine the alleged victims on their prior
sexual knowledge, experience, or behavior,” and depriving her of
the opportunity “to provide rebuttal witnesses regarding the same,
made it impossible for [Ms. Billingsley] to show her defense that the
alleged victims did something with her that they otherwise would
have done regardless of the allegations that she enticed them to do
so.”
   ¶17 As we explained above, a minor’s sexual inexperience is not
an element of the offense.23 Ms. Billingsley was permitted to present
evidence and argue both that the minors had not been enticed
because they were predisposed to “improper sexual desires”
connected to Ms. Billingsley24 and that M.M. in particular was not
enticed to do something that he “would not otherwise do” because
he was a “walking hormone . . . up for everything.” The Sixth

  22
    State v. Dibello, 780 P.2d 1221, 1229 (Utah 1989); see UTAH R.
EVID. 412 advisory committee’s note.
  23
     The probative value of the rule 412 evidence was especially low
in this case, where Ms. Billingsley’s defense was not that the minors
initiated the sexual conduct or that her advances did not amount to
enticement, but that the minors fabricated their accounts of the
sexual conduct.
  24
    Ms. Billingsley testified that M.M. made inappropriate
comments to other students about her breasts.

                                   9
                         STATE v. BILLINGSLEY
                         Opinion of the Court

Amendment right to “be confronted with the witnesses against [an
accused]” does not sweep before it all rules of evidence. Utah Rule
of Evidence 412 coexists harmoniously with the Confrontation
Clause. Evidentiary rules that “serve[] legitimate state interests . .
. may . . . justify even the severe sanction of preclusion” because
“[t]he Sixth Amendment does not confer the right to present
testimony free from the legitimate demands of the adversarial
system.”25 In the context of sexual conduct, a state’s interest in
prohibiting inquiry into a victim’s sexual history “is not in variance
with the purpose of the [C]onfrontation [C]lause to advance the
accuracy of the truth determining process.”26 The trial court abused
its discretion when it determined that Ms. Billingsley’s right to
confront witnesses against her was violated.
          II. THE ERRORS AND IRREGULARITIES THE
              TRIAL COURT CITED WERE HARMLESS
   ¶18 The trial court determined that several other errors and
irregularities that occurred at trial, while each “alone was not
prejudicial enough to warrant an arrest of judgment,” contributed
to cumulative error and “deprived [Ms. Billingsley] of her
constitutional right to a fair trial.” The trial court cited four such
errors and irregularities.
   ¶19 First, the State referred to Ms. Billingsley during trial as a
teacher instead of an aide. The State points out on appeal that
defense counsel was the first to refer to Ms. Billingsley as a teacher.
And it is uncontested that, whatever her job title, Ms. Billingsley
held a position of special trust.27 Second, the prosecutor said,

  25
   Michigan v. Lucas, 500 U.S. 145, 152–53 (1991) (internal quotation
marks omitted).
  26
     Rozell v. Estelle, 554 F.2d 229, 230–31 (5th Cir. 1977) (per curium)
(internal quotation marks omitted).
  27
      Utah Code section 76-5-406(10) explains that consent is absent
if “the victim is younger than 18 years of age and at the time of the
offense the actor . . . occupied a position of special trust in relation
to the victim. . . .” Utah Code section 76-5-404.1(4)(h) defines special
trust as “that position occupied by a person in a position of
authority, who, by reason of that position is able to exercise undue
influence over the victim, and includes, but is not limited to, a . . .
                                                          (continued...)

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                         Cite as: 2013 UT 17
                         Opinion of the Court

“thanks for your honesty” after a student’s statement that he slept
through the ISS period elicited laughter. During the new trial
hearing, the prosecutor made the following statement for the record:
        The time when the [c]ourt asked . . . [c]ounsel to
        approach and . . . told us that was inappropriate, that
        was in response to [the witness] testifying . . . I sleep
        a lot in I.S.S., to which there were several chuckles,
        from the gallery as well as the jury and I said the
        words, Oh well, we thank you for your honesty and
        that was the occasion upon which the [c]ourt asked us
        to approach the bench and made note of that.
   ¶20 Third, the trial court “observed that there was a woman in
the court room gallery emphatically shaking her head from side to
side” during Ms. Billingsley’s testimony. The trial judge conducted
a conference with counsel and inquired about the woman, who was
employed by the State. The woman left the courtroom after the
prosecutor spoke with her.
   ¶21 “[T]rial court errors will require reversal only if [our]
confidence in the jury’s verdict is undermined.”28 Defense counsel
did not object or complain of any of these irregularities at trial. Nor
did Ms. Billingsley raise them in her motion for a new trial. Defense
counsel had good reason for ignoring these irregularities. They are
clearly innocuous. The possibility that they had any influence on
the jury’s verdict is remote.
   ¶22 The only issue the trial court cited that could conceivably
have impacted a juror is the admission into evidence of a topless
photo of Ms. Billingsley. The photo was taken from Ms. Billingsley’s
cell phone and enlarged to fit an 8½ x 11 inch sheet of paper.
However, the photo was not one Ms. Billingsley had shown to the
victims. It was placed on the phone after the charged conduct. In
its order arresting judgment and granting a new trial, the court
determined that the picture should have been excluded under rule
403 of the Utah Rules of Evidence because it had limited probative



   27
     (...continued)
teacher.”
  28
     Wilson v. IHC Hospitals, Inc., 2012 UT 43, ¶ 24, 289 P.3d 369
(second alteration in original) (internal quotation marks omitted).

                                   11
                       STATE v. BILLINGSLEY
                      JUSTICE LEE, concurring

value29 and was unduly prejudicial. According to the trial court,
“[f]or the jury to decide whether the photograph would have
enticed the victims the photograph should have, at the very least,
been the size of what the victims[] would have seen.” As with the
other errors and irregularities, the court acknowledged that “the
photograph alone was not prejudicial enough to warrant an arrest
of judgment.” We agree. It is highly unlikely that the enlargement
of the photo impacted the jury’s deliberations. Our confidence in
the verdict, which was supported by the victims’ testimony,
Ms. Billingsley’s admissions, and DNA evidence, is not undermined
by the publication of a photo the jury knew was taken subsequent
to the charged conduct. In sum, the possibility that any of the
alleged errors impacted the verdict is so remote that it was an abuse
of discretion to arrest the judgment and grant a new trial based on
cumulative error.
                          CONCLUSION
   ¶23 The trial court abused its discretion when it arrested
judgment and granted a new trial. The exclusion of evidence under
rule 412 was proper and the errors and irregularities that formed the
basis for the trial court’s order granting a new trial were harmless.
We therefore vacate the order granting a new trial and reinstate the
jury verdict.

  JUSTICE LEE, concurring in part and concurring in the judgment:
   ¶24 I concur in the court’s disposition of this case but disagree
with its decision to reach out to address an issue that is both
foreclosed by the posture of this appeal and unnecessary to the
judgment. Specifically, I see no basis for opining, as the court does
in paragraphs 11–15, on whether consideration of a victim’s sexual
predisposition is “necessary to the determination of guilt” under
Utah Code section 76-5-406(11) or “defies the language and the logic
of” that provision. Supra ¶¶ 13, 14.
  ¶25 The parties’ failure to challenge the jury instructions in this
case prevents us from reaching that question. Those instructions
arguably made evidence of a victim’s sexual predisposition

  29
    The trial court determined that the photo was “relevant to
support the victims[’] testimony that Defendant had shown a nude
photograph of herself on her cellular phone to M.M. and later sent
a nude photograph of herself to D.P.’s cellular phone.”

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                         Cite as: 2013 UT 17
                       JUSTICE LEE, concurring

pertinent to the issue of enticement. Supra ¶ 13 (quoting the jury
instruction’s definition of enticement as “consist[ing] of words
intended to cause a person to do something that person would not
otherwise do” (emphasis added)). And because the propriety of the
jury instruction’s definition of “entice” is not before us on appeal,
we must accept that instruction as it operated in this case. Deciding
the proper definition of “entice” under the applicable statute is
accordingly beyond our reach. On this posture, we cannot and need
not either “reject” or accept any one definition of “entice.” Supra
¶¶ 13, 15.1
   ¶26 Moreover, the court’s determination—that “under no
definition” of entice would evidence of a victim’s sexual
naiveté/experience “be necessary to the determination of guilt,”
supra ¶ 13—is unnecessary to the resolution of the constitutional
questions before us on appeal. The basis for the trial court’s decision
to arrest the verdict was the conclusion that evidence of prior sexual
advances should have been admitted under Utah Rule of Evidence
412 because exclusion of the evidence violated Billingsley’s
Confrontation Clause and due process rights. See UTAH R. EVID.
412(a)(2), (b)(3) (stating that “evidence offered to prove a victim’s
sexual predisposition” is inadmissible in this type of case unless
“exclusion would violate the defendant’s constitutional rights”).
Those constitutional questions have straightforward answers,
neither of which requires us to establish acceptable parameters for
the evidence required to prove enticement.
   ¶27 First, Billingsley argues that “[b]y denying [her] the
opportunity to inquire into the alleged victims’ prior sexual
behavior and predisposition, . . . the trial court unjustifiably lowered
the State’s burden of proof on lack of consent by enticement,” thus
violating her right to due process. This argument fails on its own
terms because Billingsley was not denied that opportunity. On

 1
     My point is not that a teenager with prior sexual experience
categorically “cannot be enticed.” Supra ¶ 14. Nor do I mean to
suggest that the prosecution is required “to prove that the victim
was not predisposed to engage in sexual activity of any kind” in
order to establish enticement. Supra ¶ 14. I agree with the court that
such a requirement is incompatible with the “language and the logic
of the statute.” Supra ¶ 14. If the propriety of the jury instruction
were before us, I would reject Billingsley’s arguments on that score.
It is not, however, and we should refrain from opining on that issue.

                                  13
                        STATE v. BILLINGSLEY
                       JUSTICE LEE, concurring

cross-examination, Billingsley’s counsel challenged M.M. by
suggesting that he had made an inappropriate comment about
Billingsley’s breasts to a group of students. Her counsel also elicited
testimony from D.P. that M.M.’s “hormones were always raging,”
a notion reiterated by her counsel in suggesting that M.M. was a
“walking hormone . . . up for everything” who was “looking for
some action and thought he would get it with Ms. Billingsley.” This
testimony speaks to M.M.’s “prior sexual behavior and
predisposition” just as much as the excluded evidence—what
Billingsley describes as “M.M.’s flirtatious activity with a teacher.”
Because the jury heard this evidence, Billingsley cannot now
successfully argue that the State was relieved of proving
enticement.2 Indeed, Billingsley’s argument ultimately distills to a
complaint that the jury failed to credit the evidence it heard about
M.M.’s sexual predisposition; that argument does not implicate her
due process rights in the slightest.
   ¶28 Billingsley’s Confrontation Clause argument is similar and
just as easily rejected. She contends that she was prevented from
“query[ing] the alleged victims about their prior sexual knowledge,
experience, or behavior on cross-examination” or from “call[ing]
defense witnesses regarding the same,” which violated her rights

 2
    Even if Billingsley had been denied this opportunity, I would
reject her argument that such a denial lowered the State’s burden of
proof for two reasons: (1) The State was not burdened with proving
that M.M. was a sexual innocent. True, the jury instruction frames
enticement in terms of what the victim “would not otherwise do.”
But, sexual innocence, while certainly relevant, is not essential to the
question of enticement, even under the definition the parties
adopted in this case. I can imagine many factors that could be used
to determine what a victim “would not otherwise do,” and nothing
in the instruction requires the jury to confine its inquiry to sexual
predisposition. (2) Billingsley confuses the issue by relating the
State’s burden of proof to the type of evidence she presented. The
State’s burden remained the same no matter what evidence the
defense presented. So, while the defense’s evidence could have
made it easier or harder for the State to meet its burden, that
evidence did not alter the burden itself. In my view, the only
argument available to Billingsley is that it would have been harder
for the State to meet its burden had the excluded evidence been
admitted. But that argument does not at all implicate due process.

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                         Cite as: 2013 UT 17
                       JUSTICE LEE, concurring

under the Confrontation Clause. But, as noted above, Billingsley was
not prevented from doing these things. Supra ¶ 27. The jury heard
about M.M.’s past inappropriate remark about Billingsley and his
status as a “walking hormone.” The most that Billingsley can say is
that she would have liked to introduce more and better evidence of
this type. But “the Confrontation Clause guarantees an opportunity
for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense
might wish.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)
(internal quotation marks omitted). With this evidence in play, it
was hardly “impossible” for Billingsley to confront M.M. with
evidence of his sexual predisposition.
   ¶29 This is all we need say to resolve this case. That is not to say
that I do not understand the court’s desire to do more. Conditioning
a sexual crime on the child-victim’s sexual past and proclivities—as
the jury instruction in this case seemed to do—is objectionable on
many levels. In a case where that issue was squarely before us, I
would join the court’s analysis on that point. But this is not that case.
I would resolve the issue presented in this appeal by deciding that
Billingsley had a constitutionally sufficient opportunity to explore
M.M.’s sexual predisposition, even absent the excluded evidence.




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