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

                                2015 UT 69


                                   IN THE

      SUPREME COURT OF THE STATE OF UTAH

              ROBBY D. ROBINSON and LISA ROBINSON,
  individually and as personal representatives for the heirs of the
                  Estate of BRADFORD ROBINSON,
                             Appellees,
                                      v.
                   PAUL RAY TAYLOR, M.D. et al.,
                            Appellant.

                             No. 20130463
                         Filed August 11, 2015

                    Second District, Farmington
                   The Honorable John R. Morris
                          No. 090700394

                                Attorneys:
        James R. Hasenyager, Peter W. Summerill, Ogden,
         Matthew J. Morrison, Andrew Tuegel, Waco, TX,
          Donald J. Winder, John W. Holt, Salt Lake City,
                          for appellees
 Michael D. Zimmerman, Troy L. Booher, Julie J. Nelson, Noella A.
Sudbury, George R. Naegle, Zachary E. Peterson, Cortney Kochevar,
                   Salt Lake City, for appellant
Merrill F. Nelson, Alexander Dushku, Tiffany Smith, Salt Lake City,
 for amicus curiae American Medical Association, Utah Hospital
               Association, Utah Medical Association
  Paul M. Simmons, Ryan M. Springer, Salt Lake City, for amicus
              curiae Utah Association for Justice
   Sean D. Reyes, Att’y Gen., Bridget K. Romano, Solicitor Gen.,
               Salt Lake City, for the State of Utah
                        ROBINSON v. TAYLOR, et al.
                          Opinion of the Court


 JUSTICE PARRISH authored the opinion of the Court, in which CHIEF
   JUSTICE DURRANT, JUSTICE DURHAM, and JUDGE TOOMEY joined.
         ASSOCIATE CHIEF JUSTICE LEE filed a dissenting opinion.
 Due to his retirement, JUSTICE NEHRING, did not participate herein;
           COURT OF APPEALS JUDGE KATE A. TOOMEY sat.
       JUSTICE DENO G. HIMONAS became a member of the Court on
         February 13, 2015, after oral argument in this matter, and
                     accordingly did not participate.

   JUSTICE PARRISH, opinion of the Court:
                           INTRODUCTION
   ¶1 Robby and Lisa Robinson brought this medical malpractice
lawsuit against Dr. Paul Taylor for the wrongful death of their
deceased father, Brad Robinson. After the jury found that Dr. Taylor
negligently caused Mr. Robinson’s death, Dr. Taylor appealed,
challenging the trial court’s decision to admit into evidence Dr.
Taylor’s felony drug conviction. 1 We agree with Dr. Taylor and hold
that evidence of Dr. Taylor’s prior criminal conviction was
inadmissible under rules 608 and 609 of the Utah Rules of Evidence.
Accordingly, we reverse and remand for a new jury trial.
                            BACKGROUND
   ¶2 Dr. Taylor began treating Mr. Robinson in 2003 for chronic
back pain and degenerative disc disease. Over the next three years,
Dr. Taylor prescribed various pain medications to treat Mr.
Robinson’s pain, including methadone, Lortab, and Demerol. Mr.


   1 Dr. Taylor also challenges the trial court’s decision allowing the
jury to consider punitive damages and its refusal to apply the health
care malpractice damages cap to the jury award. See UTAH CODE
§ 78B-3-410. However, after oral argument, the Robinsons filed a
suggestion of mootness indicating that they are no longer seeking
punitive damages. We therefore do not address that issue. Because
we reverse and vacate the jury award, we need not address the issue
of the damages cap. However, we note that our recent decision in
United States v. Smith, 2015 UT 68, ___ P.3d ___ provides guidance on
that issue to assist the trial court on remand.


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                        Opinion of the Court
Robinson developed a drug tolerance that required successively
larger doses of medication to ameliorate his pain.
   ¶3 During Mr. Robinson’s last visit to Dr. Taylor on May 26,
2006, Dr. Taylor issued a written prescription to Mr. Robinson for a
daily dosage of 140 milligrams of methadone. Two weeks later, Mr.
Robinson was found dead at his home. The medical examiner
determined that the cause of death was “acute methadone toxicity.”
The exact date of Mr. Robinson’s death could not be determined, but
evidence and medical testimony suggest he died on June 1 or 2,
roughly a week after his last visit to Dr. Taylor. The Robinsons
brought this suit against Dr. Taylor for wrongful death caused by
medical malpractice.
    ¶4 During his deposition, Dr. Taylor testified that he had given
Mr. Robinson oral dosing instructions for the methadone that
differed from those reflected in the written prescription. Dr. Taylor
argued that Mr. Robinson was at fault for his death because he failed
to follow these oral instructions.
    ¶5 After Mr. Robinson’s death, but prior to trial, Dr. Taylor was
charged under federal law for illegally distributing a controlled
substance. This charge was unrelated to Mr. Robinson’s death. It
arose when an individual requested a prescription for pain
medication to help with a sport-related injury. Dr. Taylor met the
individual in a parking lot on more than one occasion to give him
prescriptions in exchange for cash. Dr. Taylor was charged with two
federal felony drug counts for these acts. He subsequently pled
guilty to one felony drug charge and was sentenced to prison. Due
to his prison sentence, Dr. Taylor was unable to attend trial, and in
lieu of direct examination, a previously recorded deposition was
read to the jury.
    ¶6 During trial, the Robinsons sought to introduce evidence of
Dr. Taylor’s felony conviction in order to impeach his deposition
testimony as to his alleged oral dosing instructions. Dr. Taylor filed
a motion in limine to exclude evidence of the conviction. The trial
court denied the motion, and Dr. Taylor’s deposition describing the
events surrounding his felony conviction was read into the record.
   ¶7 The jury found that Dr. Taylor breached the standard of care
and that this breach was the proximate cause of Mr. Robinson’s
death. The jury awarded the Robinsons over $3 million in general
damages and $300,000 in punitive damages. Dr. Taylor appealed.
We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j).


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                      ROBINSON v. TAYLOR, et al.
                         Opinion of the Court
                     STANDARD OF REVIEW
   ¶8 “[W]e grant a trial court broad discretion to admit or
exclude evidence and will disturb its ruling only for abuse of
discretion.” Daines v. Vincent, 2008 UT 51, ¶ 21, 190 P.3d 1269. Our
review of the trial court’s exercise of its discretion includes ensuring
“that no mistakes of law affected a lower court’s use of its
discretion.” State v. Barrett, 2005 UT 88, ¶ 17, 127 P.3d 682.
                             ANALYSIS
I. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING
     EVIDENCE OF DR. TAYLOR’S FELONY CONVICTION
    ¶9 Dr. Taylor argues that the trial court abused its discretion
when it admitted his felony conviction for impeachment purposes.
Dr. Taylor contends that his conviction was not admissible because
his credibility was not at issue and because the prejudicial effect of
the admission substantially outweighed its probative value. We
agree and hold that the trial court erred when it admitted Dr.
Taylor’s criminal conviction.
    ¶10 “When interpreting an evidentiary rule, we apply principles
of statutory construction. . . . Thus, we first look to the plain
language of the rule.” State v. Mead, 2001 UT 58, ¶ 44, 27 P.3d 1115
(alteration in original) (internal quotation marks omitted). We may
also rely on interpretations of similar federal rules by federal courts
to assist our own interpretation. See id. ¶ 45. In this case, the trial
court admitted evidence of Dr. Taylor’s felony conviction under
rules 608(b), 609(a)(1), and 609(a)(2) of the Utah Rules of Evidence.
We address each in turn.
                            A. Rule 608(b)
    ¶11 Rule 608(b) governs evidence relating to a witness’ character
for truthfulness. The trial court admitted evidence of Dr. Robinson’s
felony conviction, reasoning that “writing a prescription under the
false pretense of a doctor-patient relationship is probative of his
character for truthfulness.” But Dr. Taylor contends that rule 608
does not apply because it only governs admission of impeachment
evidence for those acts that have not resulted in the conviction of a
crime. We agree and hold that rule 608(b) permits impeachment
only by specific acts that did not result in a criminal conviction,
while rule 609 governs evidence relating to impeachment by a
criminal conviction.



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                        Opinion of the Court
    ¶12 Whether conduct resulting in a criminal conviction may be
admitted under rule 608(b) is an issue of first impression for this
court. We recognize that the rules are not free from ambiguity on
this matter, but the structure of our rules of evidence drives our
conclusion. We begin with a discussion of the general prohibition
against the admission of specific instances of conduct to prove
character. 2
    ¶13 As a general matter, the Utah Rules of Evidence prohibit the
admission of “[e]vidence of a person’s character or character trait” in
order “to prove that on a particular occasion the person acted in
conformity with [that] character or trait.” UTAH R. EVID. 404(a)(1).
This prohibition includes evidence of specific instances of conduct.
See id. 405(b) (articulating when specific instances of conduct may be
used).
   ¶14 Rules 608 and 609 are both exceptions to rule 404 and apply
when specific instances of a witness’ conduct may bear on the
witness’ character for truthfulness.
   ¶15 Rule 608(b) provides,
       Except for a criminal conviction under Rule 609,
       extrinsic evidence is not admissible to prove specific
       instances of a witness’s conduct in order to attack or
       support the witness’s character for truthfulness. But
       the court may, on cross-examination, allow them to be
       inquired into if they are probative of the character for
       truthfulness or untruthfulness of . . . the witness.
Accordingly, rule 608 allows specific instances of conduct to be
inquired into on cross-examination if they are probative of a witness’
character for truthfulness.


   2
      Both rules 608 and 609 are identical to the respective federal
rules. When our rules of evidence are identical to the federal rules,
we generally seek “to achieve uniformity between [our] rules and
the federal rules”; accordingly, “this Court looks to the
interpretations of the federal rules by the federal courts to aid in
interpreting the Utah rules.” State v. Gray, 717 P.2d 1313, 1317 (Utah
1986); see also State v. Rothlisberger, 2006 UT 49, ¶¶ 14–20, 147 P.3d
1176 (relying on federal advisory committee notes as an interpretive
aid).


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                      ROBINSON v. TAYLOR, et al.
                         Opinion of the Court
    ¶16 Rule 608 works in coordination with rule 609, which applies
when “attacking a witness’s character for truthfulness by evidence of
a criminal conviction.” Id. 609(a). Under both rules, specific
instances of conduct are admissible for the purposes of attacking
credibility. Conduct not resulting in a conviction may be inquired
into on cross-examination under rule 608, while rule 609 allows
evidence of conduct that has resulted in a conviction. These rules are
mutually exclusive: When specific instances of conduct are the
subject of a conviction, they are governed exclusively by rule 609.
And if the specific acts do not involve a conviction, they are
governed by rule 608. Cf. 28 CHARLES ALAN WRIGHT & VICTOR J.
GOLD, FEDERAL PRACTICE AND PROCEDURE § 6133 (2d ed. 2012)
(“[C]riminal acts that have not been made the subject of a
prosecution and conviction are controlled by Rule 608(b), not Rule
609.”).
    ¶17 The opening phrase of rule 608(b) makes this explicit. The
rule begins with the phrase “[e]xcept for a criminal conviction under
Rule 609.” This language specifically excludes rule 608’s application
to specific instances of conduct that result in a criminal conviction.3
See WRIGHT & GOLD, supra, § 6117 (“[T]he first sentence of
subdivision (b) specifically states that the admission of [conviction]
evidence is determined under Rule 609, not Rule 608.”). This
construction of rule 608(b)’s introductory phrase is supported by the
committee note to the federal rule, which provides, “Particular
instances of conduct, though not the subject of criminal conviction, may
be inquired into on cross-examination.” FED. R. EVID. 608 advisory
committee’s note (emphasis added).
   ¶18 Rule 609 is the only rule that governs the admission of
evidence of a criminal conviction. It applies when “attacking a

   3
      The 2003 version of rule 608 stated this more directly: “Specific
instances of the conduct of a witness, for the purpose of attacking or
supporting the witness’ credibility, other than conviction of a crime as
provided in Rule 609, may not be proved by extrinsic evidence. They
may, however, . . . be inquired into on cross examination of the
witness . . . .” UTAH R. EVID. 608(b) (2003) (emphasis added). The
changes from this version to the current language were “intended to
be stylistic only. There [was] no intent to change any result in any
ruling on evidence admissibility.” UTAH R. EVID. 608 advisory
committee note.


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                          Cite as: 2015 UT 69
                         Opinion of the Court
witness’s character for truthfulness by evidence of a criminal
conviction.”      UTAH R. EVID. 609(a).          And rule 609 gives
comprehensive treatment as to the admissibility of evidence of
conviction. For instance, it distinguishes the admission of a criminal
conviction for a criminal defendant from other witnesses, id.
609(a)(1)(B), and it differentiates felonies and misdemeanors, id.
609(a)(1). Rule 609 also governs other evidentiary issues arising with
prior convictions, such as the effects of a pardon, annulment,
certificate of rehabilitation, juvenile adjudication, and the pendency
of an appeal. Id. 609(c)–(e). Rule 608 is devoid of any guidance on
these important issues.
    ¶19 A majority of the federal appellate courts that have
discussed the interplay between federal rules 608 and 609 have
interpreted them to distinguish between those specific instances of
conduct that lead to a conviction and those that do not. For example,
in United States v. Osazuwa, 564 F.3d 1169, 1173 (9th Cir. 2009), the
court held that “[e]vidence relating to a conviction . . . is treated
solely under Rule 609” and that “Rule 608 applies only to specific
instances of conduct that were not the basis of a criminal conviction.”
Id. at 1173. The court further recognized that admitting evidence
under rule 608 as “a bad act resulting in a conviction would be, in a
sense, count[ing] [the conviction] twice—once by presenting the bad
act itself and once by presenting the conviction that flowed from it.”
Id. at 1174. The court also observed, “The risk of unfair prejudice or
undue emphasis is the reason why Rule 609 and its related case law
carefully guide the admission of prior convictions and their
underlying facts.” Id. at 1174–75. 4


   4
       Other federal appellate courts have likewise observed that rule
608(b) is limited to bad acts that do not result in a felony conviction.
E.g., United States v. Lightfoot, 483 F.3d 876, 881 (8th Cir. 2007) (“Rule
608(b) . . . confers upon district courts discretion to permit witness-
credibility questioning on specific bad acts not resulting in a felony
conviction.”); United States v. Whitmore, 359 F.3d 609, 620 (D.C. Cir.
2004) (“[Rule] 608(b) allows a witness’s credibility to be attacked
based on misconduct that, while not constituting a criminal
conviction, nevertheless tends to show that the witness is
untruthful.”); United States v. Parker, 133 F.3d 322, 327 (5th Cir. 1998)
(“Prior bad acts that have not resulted in a conviction are admissible
under [Rule] 608(b) if relevant to the witness’s character for
                                                        (continued . . . )

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                      ROBINSON v. TAYLOR, et al.
                         Opinion of the Court
    ¶20 Secondary sources further support the same conclusion. For
instance, Professors Wright and Gold state, “Rule 608 does not
regulate the admissibility of criminal conviction evidence, which is
the subject of Rule 609.” WRIGHT & GOLD, supra, § 6111 n.1. They
also recognize that “[s]ubdivision (b) specifically exempts from its
coverage evidence of specific instances of witness conduct in the
form of criminal convictions.” Id. § 6113; see also R. COLLIN
MANGRUM & DEE BENSON, MANGRUM & BENSON ON UTAH EVIDENCE
479 (2014) (arguing that treating evidence of specific acts relating to a
criminal conviction exclusively under rule 609 “is arguably [a] better
rule and reconciles the differences [between rules 608 and 609]”).
   ¶21 We agree and accordingly hold that rule 608(b) permits
impeachment only by specific acts that did not result in a criminal
conviction. Therefore, the admission of Dr. Taylor’s conviction
under rule 608 was an abuse of discretion.
                            B. Rule 609(a)(2)
    ¶22 We now move to consider the other rule under which the
district court admitted evidence of Dr. Taylor’s conviction, rule 609.
Rule 609(a) has two subsections governing admission of evidence of
a criminal conviction: subsection 609(a)(1) grants courts discretion to
admit some crimes and subsection 609(a)(2) requires automatic
admission for certain other crimes. We begin with Dr. Taylor’s
challenge to the automatic admission of his criminal conviction
under rule 609(a)(2). Dr. Taylor contends that its admission was an
abuse of discretion because the rule only allows automatic admission
of evidence when the criminal elements require proving a dishonest
act or a false statement and unlawful distribution of a controlled
substance involves neither. We agree. Only when the elements of
the crime require proving a dishonest act or false statement can a
prior conviction be automatically admitted into evidence.
   ¶23 The trial court held that Dr. Taylor’s criminal conviction
must be automatically admitted into evidence because “writing a
prescription under the false pretense of the existence of a doctor-
patient relationship . . . pertains to a crime involving a dishonest act


truthfulness or untruthfulness.”); United States v. Smith, 80 F.3d 1188,
1193 (7th Cir. 1996) (“[T]he plain language of [rule 608(b)] allows for
cross-examination of matters ‘other than conviction of crime.’”);
Mason v. Texaco, Inc., 948 F.2d 1546, 1556 (10th Cir. 1991).


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                         Cite as: 2015 UT 69
                         Opinion of the Court
or false statement.” But this is a misapplication of the rule.
Although a previous version of rule 609 required the admission of a
prior criminal conviction when the crime “involved dishonesty or
false statement,” UTAH R. EVID. 609(a)(2) (2010), our current rule has
stricter requirements for mandatory admission of criminal
convictions.
   ¶24 The current version of rule 609(a)(2) of the Utah Rules of
Evidence provides that
       for any crime regardless of the punishment, the
       evidence must be admitted if the court can readily
       determine that establishing the elements of the crime
       required proving—or the witness’s admitting—a
       dishonest act or false statement.
Accordingly, rule 609(a)(2) applies to a narrow subset of criminal
convictions.
    ¶25 Under rule 609(a)(2), only those crimes involving a statutory
offense that require proving a dishonest act or false statement as an
element of the crime are to be automatically admitted into evidence.
The phrase “dishonest act or false statement” applies to crimes “in
the nature of crimen falsi[,] the commission of which involves some
element of untruthfulness, deceit, or falsification bearing on the
accused’s propensity to testify truthfully.” 5 FED. R. EVID. 609
advisory committee’s note (quoted approvingly in State v. Bruce, 779
P.2d 646, 654 (Utah 1989)). Thus, it is the elements of the criminal act
that determine its admissibility, not the manner in which the offense

   5 We have already recognized that “federal courts and most state
courts are unwilling to conclude that offenses such as . . . narcotic
violations are per se crimes of dishonesty or false statement.” State v.
Bruce, 779 P.2d 646, 655 (Utah 1989) (internal quotation marks
omitted); see also Gregory v. State, 616 A.2d 1198, 1204 (Del. 1992)
(holding that the elements of the crime of possession with intent to
deliver “require no proof of conduct involving lying, deceiving,
cheating, stealing or defrauding”); State v. Zaehringer, 325 N.W.2d
754, 756 (Iowa 1982) (distribution offenses do not involve “deceit,
fraud, cheating, or stealing”); State v. Hardy, 946 P.2d 1175, 1178
(Wash. 1997) (“Drug convictions are not crimes of ‘dishonesty or
false statement’ like perjury or criminal fraud and thus [rule
609(a)(2)] does not apply.”).



                                   9
                      ROBINSON v. TAYLOR, et al.
                         Opinion of the Court
is committed. See United States v. Lewis, 626 F.2d 940, 946 (D.C. Cir.
1980).
    ¶26 While it is possible that distributing a controlled substance
may be done in a deceitful manner, the offense for which Dr. Taylor
was convicted, 21 U.S.C. § 841(a), does not include elements of a
dishonest act or false statement as part of the statutory offense. 6 See
Lewis, 626 F.2d at 946 (holding that 21 U.S.C. § 841(a) does not
“involve ‘dishonesty or false statement’ within the meaning of Rule
609(a)(2)”). Accordingly, admission of Dr. Taylor’s prior conviction
of a narcotics violation was improper under rule 609(a)(2).
                          C. Rule 609(a)(1)(A)
    ¶27 The trial court also admitted evidence of Dr. Taylor’s
criminal conviction under rule 609(a)(1)(A). This rule allows a party
to “attack[] a witness’s character for truthfulness by evidence of a
criminal conviction.” UTAH R. EVID. 609(a)(1). But in a civil case, a
felony conviction “must be admitted[] subject to Rule 403.”
Id. 609(a)(1)(A). Rule 403, provides that “[t]he court may exclude
relevant evidence if its probative value is substantially outweighed
by a danger of . . . unfair prejudice.” 7 Dr. Taylor argues that
admission of his conviction under this rule was also an abuse of

   6  The elements of 21 U.S.C. § 841(a) are (1) “knowingly or
intentionally” (2) ”manufactur[ing], distribut[ing], or dispens[ing],
or possess[ing] with intent to manufacture, distribute, or dispense,”
(3) “a controlled substance.” See 21 U.S.C. § 841.
   7
        The parties disagree over whether we should apply the rule
403 balancing factors articulated in State v. Banner, 717 P.2d 1325,
1334 (Utah 1986). In Banner we identified factors “to be considered
when balancing probative value [of a prior conviction] against [its]
prejudicial effect.” Id. These factors were the nature of the crime, the
recentness of the prior conviction, the similarity between the prior
and charged crime, the importance of the credibility issue, and the
need for the accused’s testimony. Id. Banner was a criminal case;
and, in any event, we have yet to apply these factors in any civil
case. It suffices here to echo our recent explanation in State v. Lucero,
“It is . . . unnecessary for courts to evaluate each and every [Banner]
factor and balance them together in making their [rule 403]
assessment. This is because courts are bound by the text of rule 403,
not [a] limited list of considerations.” 2014 UT 15, ¶ 32, 328 P.3d 841.



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discretion because Dr. Taylor’s credibility was not at issue. He
therefore reasons that the evidence was not probative and
substantially prejudiced the jury. The Robinsons respond that Dr.
Taylor put his credibility at issue by claiming to have given Mr.
Robinson undocumented oral dosing instructions. Since both Mr.
Robinson, who is deceased, and Dr. Taylor, who was imprisoned,
were unavailable for trial, they reason that the only avenue left for
them to attack Dr. Taylor’s testimony regarding the dosing
instructions was to impeach his credibility. We agree with Dr.
Taylor and hold that the district court abused its discretion by
admitting Dr. Taylor’s prior criminal conviction under rule
609(a)(1)(A) of the Utah Rules of Evidence because the danger of
unfair prejudice substantially outweighs any probative value it may
have.
1. Dr. Taylor’s Criminal Conviction Had Minimal Probative Value
    ¶28 “The probative value of evidence is judged by the strength
of the evidence[,] its ability to make the existence of a consequential
fact either more or less probable[,] and the proponent’s need for the
evidence.” State v. Johnson, 784 P.2d 1135, 1140 (Utah 1989) (footnote
omitted) (internal quotation marks omitted). Dr. Taylor contends
that his felony conviction had little probative value because it was
not a crime of dishonesty admissible under rule 609(a)(2). Although
this may be true, the probative value of a crime is not determined
solely on whether the crime should have been admitted under rule
609(a)(2). See United States v. Lipscomb, 702 F.2d 1049, 1057 (D.C. Cir.
1983) (en banc) (“[C]rimes of stealth (e.g., smuggling, burglary),
while not quite crimes of ‘dishonesty or false statement,’ do reflect
lack of credibility and should be admitted unless significantly
prejudicial.”). Indeed, the existence of rule 609(a)(1) indicates that
any felony conviction is “at least somewhat probative of a witness’s
propensity to testify truthfully.” United States v. Estrada, 430 F.3d
606, 617 (2d Cir. 2005); accord Lipscomb, 702 F.2d at 1062. Even
though Dr. Taylor’s criminal conviction did not involve a crime of
dishonesty, his willingness to violate the law does cast some doubt
on his character for truthfulness. Although we acknowledge the
general probative value of a prior criminal conviction, we conclude
that its admission in this case was an abuse of discretion because
whether Dr. Taylor gave the oral dosing instructions to Mr.
Robinson was not a “consequential fact.”
   ¶29 The Robinsons suggest that they needed to introduce
evidence of the conviction to rebut Dr. Taylor’s testimony that he

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                      ROBINSON v. TAYLOR, et al.
                        Opinion of the Court
gave oral dosing instructions to Mr. Robinson that differed from
those reflected in the written prescription. But it is apparent from
the record that Dr. Taylor’s character for truthfulness was, at best,
only a tangential issue. Indeed, the Robinsons argued that Dr.
Taylor was negligent regardless of which dosing instructions were
given. For example, during opening arguments, the Robinsons
noted that “no matter how you slice it, the evidence is going to show
[that Mr. Robinson] took th[e] methadone as prescribed or less than
prescribed and still suffered [a] fatal consequence.” And the
Robinsons’ own expert opined that Mr. Robinson likely followed Dr.
Taylor’s oral instructions. In short, whether Dr. Taylor was telling
the truth about the oral dosing instructions was inconsequential to
the case and, therefore, there was no real need to impeach Dr.
Taylor’s credibility.
   ¶30 Because the jury’s determination of negligence did not turn
on the instructions, evidence of Dr. Taylor’s conviction was only
minimally probative. We now consider whether that conviction
evidence was sufficiently prejudicial to substantially outweigh its
probative value.
2. Admission of Dr. Taylor’s Criminal Conviction Was Unfairly
Prejudicial
   ¶31 Dr. Taylor argues that the admission of his conviction was
unfairly prejudicial because it tempted the jury to find him negligent
simply “because [he] had been convicted of criminal conduct.” The
Robinsons argue that we should defer to the trial court’s
determination of prejudice and that admission of Dr. Taylor’s
conviction was not sought for its prejudicial effect.
    ¶32 Conviction evidence is unfairly prejudicial when it is
“inflammatory in the sense that the jury may use the conviction
against the defendant for purposes other than determining the
defendant’s credibility, and therefore would tend to induce the jury
to render a verdict outside the relevant substantive evidence.” State
v. Slowe, 728 P.2d 110, 112–13 (Utah 1985). We therefore focus not on
general prejudice, but only on “unfair” prejudice. See Robinson v. All-
Star Delivery, Inc., 1999 UT 109, ¶ 28, 992 P.2d 969 (“If Rule 403
simply prohibited prejudicial evidence, hardly any evidence would
be admissible.”). Accordingly, “[t]he critical question in a rule 403
analysis for unfair prejudice is whether [the evidence] is so
prejudicial that the jury will be unable to fairly weigh the evidence.”



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State v. Jones, 2015 UT 19, ¶ 30, 345 P.3d 1195 (internal quotation
marks omitted).
    ¶33 Although many types of evidence pose a risk of unfair
prejudice, conviction evidence, in particular, carries with it unique
and inherent danger of unfair prejudice. In Old Chief v. United States,
519 U.S. 172, 180 (1997), the Supreme Court identified various
“improper grounds” on which a jury could base its decision when
presented with conviction evidence. For instance, the jury might
generalize a defendant’s earlier conviction into “raising the odds that
he did the later bad act now” at issue. Id. The jury might also base
its decision on the improper grounds that a convict deserves
punishment, even if it is uncertain of the convict’s liability or guilt in
the instant case. Id. at 181.
   ¶34 In this case, details about Dr. Taylor’s conviction had the
potential to lure the jury into declaring fault on a ground different
from the Robinsons’ allegation of negligence. The Robinsons
provided a detailed narrative of Dr. Taylor selling oxycodone in a
parking lot. The narrative is loaded with extraneous meaning that
provokes imagery of a shady doctor abusing his authority to profit
as a part-time drug dealer. Because this depiction is so contrary to
our view of the principled and professional physician who
thoroughly diagnoses his patients in a traditional office space, it
immediately elicits an emotional response. The imagery it invokes
entices a jury to reason that Dr. Taylor is a bad doctor because he is a
bad person.
    ¶35 Both Dr. Taylor’s prior conviction and the negligence claims
at issue here involve questionable prescriptions. The close similarity
between the parking lot prescriptions and the prescription at issue in
this case increase the risk of unfair prejudice. The jury could have
improperly inferred from the conviction that Dr. Taylor was willing
to prescribe dangerous medications without exercising proper
diligence. And this improper inference speaks directly to the
question of Dr. Taylor’s lack of due care, which the jury had to
specifically determine in finding negligence.
    ¶36 Finally, even had the jury believed that Dr. Taylor had
altruistic motives in helping a stranger in pain, it still could readily
draw the improper inference that the details of the conviction
demonstrated Dr. Taylor’s weakness of not being able to say “no” to
demanding patients. Thus, it would be easy to picture Dr. Taylor



                                   13
                      ROBINSON v. TAYLOR, et al.
                         Opinion of the Court
succumbing to a drug-dependent Mr. Robinson insisting on a
dangerously high dose of methadone.
   ¶37 In short, the inferences to be drawn from the evidence of Dr.
Taylor’s prior conviction may have led the jury to conclude that Dr.
Taylor should be punished, regardless of his liability in this
particular case.   This risk “creat[ed] a prejudicial effect that
outweighs ordinary relevance.”        Id. (internal quotation marks
omitted).
   ¶38 In summary, admission of Dr. Taylor’s conviction
substantially increased the likelihood of the jury finding negligence
on an improper ground, therefore posing a significant danger of
unfair prejudice. Given that the Robinsons had no real need for the
conviction evidence, we hold that the probative value of Dr. Taylor’s
criminal conviction was substantially outweighed by the risk of
unfair prejudice and that the trial court therefore abused its
discretion in admitting the evidence under rule 609(a)(1)(A).
   II. ADMISSION OF DR. TAYLOR’S CONVICTION WAS NOT
                    HARMLESS ERROR
    ¶39 Having concluded that the trial court abused its discretion
in admitting the conviction evidence, we now turn to the question of
whether that error was harmless. “The test for harmless error in
cases involving an erroneous failure to exclude prior convictions is
whether, absent the error, there was a reasonable likelihood of a
more favorable result for [the party].” State v. Lanier, 778 P.2d 9, 11
(Utah 1989). Therefore, “trial court errors will require reversal only
if [our] confidence in the jury’s verdict is undermined.” Wilson v.
IHC Hosps., Inc., 2012 UT 43, ¶ 24, 289 P.3d 369 (alteration in original)
(internal quotation marks omitted).
   ¶40 In this case, our confidence in the jury’s verdict is
sufficiently undermined to warrant a new trial. As discussed above,
admission of the criminal conviction unfairly prejudiced Dr. Taylor.
And that prejudice created a reasonable likelihood that the jury
generalized Dr. Taylor’s criminal act, concluding that he was a bad
person who needed to be punished. Moreover, the jury may have
concluded that even if Dr. Taylor was not at fault in this case, they
could ensure he never again wrote an illegal prescription. Indeed,
the Robinsons capitalized on this line of thought. In their closing
argument, they highlighted that “Dr. Taylor is a convicted felon,
convicted of unlawfully selling prescriptions for oxycodone in
parking lots.” Explaining to the jury that Dr. Taylor was a


                                   14
                         Cite as: 2015 UT 69
                        A.C.J. LEE, dissenting
“convicted felon” is one thing under rule 609(a)(1), but coloring that
fact with the how, what, and where of the conviction, including
mentioning that he “sold” the prescriptions, may have allowed the
colorful details of a conviction narrative to pervade the minds of
jurors.
   ¶41 The prejudicial impact of the evidence undermines our
confidence in the verdict. The specific details of Mr. Robinson’s
death and drug consumption behavior are largely unknown, and
without the admission of Dr. Taylor’s prior criminal conviction,
there is a reasonable likelihood of a more favorable result for Dr.
Taylor. Because the impermissible details of the conviction could
have reasonably impacted the jury’s assessment of negligence, we
vacate the jury’s verdict and remand for a new trial.
                          CONCLUSION
    ¶42 The trial court abused its discretion in admitting evidence of
Dr. Taylor’s prior conviction under rules 608 and 609 of the Utah
Rules of Evidence. Rule 608 does not govern admission of evidence
of a criminal conviction, and rule 609(a)(2) does not require the
automatic admission of a conviction of narcotics distribution. We
also hold that the probative value of Dr. Taylor’s criminal conviction
was substantially outweighed by the risk of unfair prejudice. These
abuses of discretion sufficiently undermine our confidence in the
jury’s decision. Therefore, we vacate the jury verdict and remand
the case for a new trial.
                          ———————

   ASSOCIATE CHIEF JUSTICE LEE, dissenting:
  ¶43 Plaintiffs’ medical malpractice claim alleged negligence by Dr.
Paul Taylor in his prescription of an unreasonable dose of
methadone leading to the death of Brad Robinson. In support of this
claim, plaintiffs presented expert testimony challenging the
reasonableness of the dosage on Taylor’s written prescription.
  ¶44 Taylor offered two responses. First, Taylor proffered his own
testimony (through a deposition transcript) that he had given special
dosing instructions to Robinson—instructions that directed
Robinson to take less than the prescribed amount initially, and to go
up to the prescribed dosage only if the lower dosage was
insufficient. At trial, Taylor asserted that this ameliorated any
alleged negligence in the written prescription, in that the oral
instructions were reasonable and that Robinson was at fault for

                                 15
                      ROBINSON v. TAYLOR, et al.
                        A.C.J. LEE, dissenting
failing to follow the oral instructions. Second, Taylor presented
expert testimony (from Dr. Long) supporting the reasonableness of
the methadone dosage on the written prescription. Dr. Long’s
testimony indicated that although the methadone dosage was
unusual, it was necessary (and reasonable) for this patient given his
high level of tolerance for pain medication.
  ¶45 Plaintiffs, in turn, challenged Taylor’s assertions regarding the
oral dosing instructions. They first alleged that no such instructions
were given—noting that Taylor’s testimony was the only evidence of
such instructions, and questioning his credibility in light of his prior
felony conviction (among other things). As a fallback, plaintiffs also
asserted that even the alleged oral dosing instructions were
unreasonable.
  ¶46 The jury entered a verdict in favor of the plaintiffs. It found
that Taylor had breached the standard of care and that his breach
was the cause of Robinson’s death. And it awarded the Robinsons $3
million in general damages. The verdict gave no indication of the
specific basis of the jury’s determination of negligence, however.
Thus, there is no way to determine whether the jury accepted or
rejected Taylor’s assertion that he gave oral dosing instructions, or
whether it reached the question of whether the oral dosing
instructions were unreasonable.
  ¶47 The majority reverses and remands for a new trial. It does so
on the basis of its determination of error in the admission of
evidence of a prior criminal conviction of Taylor, which was
admitted for the purpose of allowing the plaintiffs to challenge his
credibility. See supra ¶ 28. I agree with the court’s analysis under
rules 608(b) and 609(a)(2). The prior conviction was not properly
admissible under either of these rules, for reasons articulated by the
court.
  ¶48 I respectfully dissent, however, because I disagree with the
court’s analysis and holding under rule 609(a)(1)(A). I would affirm
the district court’s admission of Taylor’s prior conviction under the
abuse of discretion standard under this rule.
  ¶49 The majority deems Taylor’s conviction for distribution of a
controlled substance “minimally probative.” Supra ¶ 30. It bases that
conclusion on the determination that Taylor’s testimony about oral
dosing instructions was somehow “inconsequential to the case.”
Supra ¶ 29. And in light of the purportedly “tangential” nature of
Taylor’s testimony, the majority concludes that “there was no real


                                  16
                          Cite as: 2015 UT 69
                         A.C.J. LEE, dissenting
need to impeach Dr. Taylor’s credibility,” and thus no basis for
assigning any significant probative value to Taylor’s conviction.
Supra ¶ 29.
  ¶50 In sum, the majority’s reasoning is as follows: (1) Taylor’s
dosing instructions were inconsequential to the jury’s finding of
negligence; (2) the injection of Taylor’s criminal conviction into the
trial was thus minimally probative; and (3) because the danger of
unfair prejudice substantially outweighed the minimal probative
value of the criminal conviction information, it should not have been
introduced to the jury.
  ¶51 I find this analysis troubling—both legally and factually. As a
legal matter, the probative value of a prior conviction turns on the
impact of the conviction on the witness’s credibility, not on the
relative significance of the issue on which the witness is testifying. 1
The significance of the issue should matter, if at all, in the assessment
of the unfairness of any prejudice, or of the harmlessness of any
error. By adding this consideration to the probative value calculus,
the majority loads one side of the scale before even getting to any
balancing. This conflates minimal significance with minimal
probative value.
  ¶52 I would start with a straightforward analysis of the impact of
Taylor’s prior conviction on his credibility as a witness. And I would
find the probative value of the conviction in question to be
substantial—or at least arguably so, which is all it should take under
the abuse of discretion standard of review. The conviction, for
starters, was on a felony. See supra ¶ 28 (acknowledging that “any
felony conviction is ‘at least somewhat probative of a witness’s
propensity to testify truthfully’” (quoting United States v. Estrada, 430


   1  See, e.g., State v. Gomez, 2002 UT 120, ¶ 34, 63 P.3d 72 (“The trial
court must . . . evaluate and consider the probative value of the
proffered testimony, that is, the extent to which the proposed
testimony is probative of truthfulness or untruthfulness . . . .”); State
v. Emmett, 839 P.2d 781, 785–86 (Utah 1992) (“it is well established
that under Utah Rules of Evidence 404 and 609, past criminal
convictions are only admissible for the limited purpose of attacking
the credibility of a defendant . . . .”); see also BLACK’S LAW
DICTIONARY 1397 (10th ed. 2014) (defining probative as “[t]ending to
prove or disprove”).



                                   17
                       ROBINSON v. TAYLOR, et al.
                         A.C.J. LEE, dissenting
F.3d 606, 617 (2d Cir. 2005))). This felony, moreover, seems to me to
call Taylor’s credibility into question quite directly. 2 A conviction for
distribution of a controlled substance may not so indicate on its face,
as the elements of the offense do not generally require proof of a
“dishonest act or false statement.” Supra ¶ 26. But when a doctor
pleads guilty to selling an oxycodone prescription in a parking lot,
there is a strong inference that he was providing the prescription
under false (or at least questionable) pretenses. At a minimum, the
district court would not be abusing its discretion in so concluding,
which is all that is needed here. 3
 ¶53 That suggests that Taylor’s conviction was substantially
probative of his lack of credibility. I would so conclude. I would also
hold, under the abuse of discretion standard of review, that the
probative value of the prior conviction was not “substantially
outweighed by a danger of . . . unfair prejudice.” UTAH R. EVID. 403.
  ¶54 I agree, certainly, that the “narrative of Dr. Taylor selling
oxycodone in a parking lot” likely evoked a powerful negative view
of the doctor. Supra ¶ 34. And the majority is right that opening the
door to this prior conviction introduced a possibility that the jury
could make improper—and unfairly prejudicial—inferences (e.g.,
“that Dr. Taylor is a bad doctor because he is a bad person”). Id. But
we cannot assume that this unfair prejudice would predominate over
the proper function of the evidence (of undermining Taylor’s
credibility). After all, the jury was instructed to consider the prior



   2 “Rule 609(a)(1) crimes, which do not bear directly on honesty
such as to be automatically admissible under Rule 609(a)(2), may
nonetheless be highly probative of credibility.” United States v.
Estrada, 430 F.3d 606, 617 (2d Cir. 2005). “[M]any [Rule 609(a)(1)
felonies] are significantly probative of a witness’s propensity for
truthfulness.” Id.; see also United States v. Burston, 159 F.3d 1328, 1335
(11th Cir. 1998) (“The implicit assumption of Rule 609 is that prior
felony convictions have probative value.”).
   3 See also Burston, 159 F.3d at 1335 (“We are not certain what
evidence of two convictions for theft by taking, one conviction for
armed robbery, and one conviction for aggravated assault says about
[the witness’] credibility, but we are certain that the jury should have
been given the opportunity to make that decision.”).



                                   18
                          Cite as: 2015 UT 69
                         A.C.J. LEE, dissenting
conviction only in judging Taylor’s credibility. 4 And if the mere
existence of other, unfair inferences were enough to outweigh the
probative value of a prior conviction, no such evidence would ever
be admitted. That cannot be what our rules envision. 5
  ¶55 If the majority were right that the question of Taylor’s
credibility in allegedly giving oral dosing instructions was an
inconsequential matter at trial, see supra ¶ 29, then the risk of unfair
prejudice could possibly be seen as substantially outweighing the
probative value of the prior conviction evidence. But the court’s
assessment of the significance of Taylor’s credibility cannot be
reconciled with the trial record.
  ¶56 As noted, Taylor’s alleged oral dosing instructions were a
central part of his defense. And the trial transcript contradicts the
majority’s characterization of Taylor’s credibility as “tangential.”
Supra ¶ 29. It’s true that “the Robinsons argued that Taylor was
negligent regardless of which dosing instructions were given,” and
that their expert “opined that Mr. Robinson likely followed” any oral
dosing instructions. Supra ¶ 29. But the court’s characterization of
the trial record is incomplete. Throughout the trial, plaintiffs
challenged the very existence of any oral dosing instructions. And
they openly invited the jury to reject Taylor’s testimony of such
instructions by challenging his credibility.
  ¶57 This was particularly clear during closing argument.
Plaintiffs’ counsel’s argument was focused on questioning the

   4 “We should presume that the jury followed these instructions.
Our case law, in fact, prescribes [such] a presumption . . . .” Wilson v.
IHC Hosps., Inc, 2012 UT 43 ¶ 142, 289 P.3d 369 (Lee, J., dissenting)
(relying on State v. Harmon, 956 P.2d 262, 273 (Utah 1998)).
   5  The majority is concerned that “[a]lthough many types of
evidence pose a risk of unfair prejudice, conviction evidence, in
particular, carries with it unique and inherent danger of unfair
prejudice.” Supra ¶ 34. But Rule 403 contains no such presumption of
increased risk of unfair prejudice for conviction evidence. It simply
allows conviction evidence to be admitted unless its value in aiding
the jury’s evaluation of witness credibility is substantially outweighed
by the risk of unfair prejudice. Those two adjectives are significant. If
any presumption is present in our rule, it is a presumption in favor
of admitting conviction evidence.



                                   19
                      ROBINSON v. TAYLOR, et al.
                         A.C.J. LEE, dissenting
existence of oral dosing instructions and on questioning the
credibility of Taylor’s testimony:
       Now, if during deliberations somebody says, “Well,
       but there are special dosing instructions,” remind them
       of these things: There is no evidence of special dosing
       instructions.
       Okay.
       If there were special dosing instructions, they are
       inconsistent with every other piece of evidence we
       have. Inconsistent with the written—handwritten note
       by Dr. Taylor on May 26. It’s inconsistent with the
       typed out note for the 26th. It’s inconsistent with the
       prescription itself, and it’s in prescription (sic) with the
       verification, the confirmation of the dose, provided by
       Dr. Taylor's office to Mr. Carlson. It’s not consistent
       with anything
       ....
       The only evidence is Dr. Taylor’s own word[;] . . . . as
       the judge instructed, you’ve got to consider the
       credibility of each witness. Dr. Taylor is a convicted
       felon, convicted of unlawfully selling prescriptions for
       oxycodone in parking lots. He is not credible. He is the
       only witness who’s claimed these instructions,
       instructions that aren’t consistent with any piece of
       written evidence we have.
  ¶58 The question of special dosing instructions was a key question
at trial. Taylor voluntarily injected this issue into the case. He did so
as a backup for his threshold assertion (via his expert, Dr. Long) that
the written prescription was reasonable. And the plaintiffs,
predictably and as was their right, seized upon the opportunity to
challenge Taylor’s credibility. In so doing, they openly invited the
jury to reject Taylor’s assertion that he gave oral dosing instructions
on the basis of doubts about his credibility. For all we know the jury
did exactly that. On this record it is a fair inference that Taylor’s
credibility was a key question for the jury.
  ¶59 In these circumstances, I have no idea how the majority can
say that Taylor’s credibility was tangential, or that the “jury’s
determination of negligence did not turn on” the question whether
Taylor gave oral dosing instructions. Supra ¶ 30. That is sheer


                                   20
                          Cite as: 2015 UT 69
                         A.C.J. LEE, dissenting
speculation. The most we can say is that the jury might not have
found it necessary to decide whether Taylor “was telling the truth
about the oral dosing instructions,” supra ¶ 29, given that the
plaintiffs alleged negligence even under those instructions. That was
a fallback for the plaintiffs, however, as they directly challenged the
existence of oral dosing instructions and directly challenged Taylor’s
credibility in asserting that he gave them. And for me that suggests
that Taylor’s credibility was a key issue—one voluntarily injected
into the case by Taylor, and challenged directly by the plaintiffs.
  ¶60 Because Taylor’s credibility was a key issue, I see no way to
presume that the jury misused probative evidence of credibility to
draw unfair inferences against him. I would accordingly affirm. That
result seems particularly appropriate under the abuse of discretion
standard of review. Under this standard the district court’s decision
may be upheld even if we decide that we might have excluded
Taylor’s prior conviction if we had been presiding over the trial. It
should be enough that a reasonable trial judge could find that the
probative value of the conviction is not substantially outweighed by
the risk of unfair prejudice. 6 I would affirm on that basis.




   6 See, e.g., Barrientos ex rel. Nelson v. Jones, 2012 UT 33, ¶ 39, 282
P.3d 50 (“[W]e grant a trial court broad discretion to admit or
exclude evidence and will disturb its ruling only for abuse of
discretion, and then only if the ruling was beyond the limits of
reasonability.”(alteration in original) (internal quotation marks
omitted)).


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