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

                                 2018 UT 60


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                              STATE OF UTAH,
                                 Appellee,
                                       v.
                       MARK ANTHONY BEVERLY,
                             Appellant.

                             No. 20160511
                       Filed November 29, 2018

                            On Direct Appeal

                      Third District, Salt Lake
                   The Honorable Mark S. Kouris
                          No. 141909114

                                 Attorneys:
    Sean D. Reyes, Att’y Gen., Jeffrey D. Mann, Asst. Solic. Gen.,
                    Salt Lake City, for appellee
          Nathalie S. Skibine, Salt Lake City, for appellant

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, JUSTICE PEARCE, and
                    JUSTICE PETERSEN joined.

   CHIEF JUSTICE DURRANT, opinion of the Court:
                               Introduction
   ¶1 Mark Anthony Beverly was convicted of rape and forcible
sexual assault of his wife. He claims the two had consensual sex.
    ¶2 After a period of separation, Mr. Beverly moved into his
wife’s home, where he slept on her couch, because he had nowhere
else to go. One night he became enraged, entered his wife’s room,
slammed the door, and demanded that she have sex with him. She
refused his demands multiple times and cried during the incident.
Eventually, she followed his instructions and engaged in sexual
                           STATE v. BEVERLY
                         Opinion of the Court

conduct. Immediately afterward, she notified the police that she had
been raped and Mr. Beverly was arrested.
    ¶3 He now appeals his conviction on several grounds. First, he
claims the trial judge violated his constitutional rights by
commenting on the outcome of the O.J. Simpson trial to potential
jury members during voir dire. Second, he claims the trial court
abused its discretion in excluding evidence suggesting the possibility
that his wife had sex with another man before the alleged rape
occurred. Third, he claims the trial court abused its discretion when
it admitted evidence about Mr. Beverly’s domestic violence in the
past, and when it precluded him from asking about specific details
of those instances on cross-examination. Finally, he argues that all
the errors in this case cumulatively warrant reversal.
    ¶4 We disagree with each of his contentions. Mr. Beverly’s
constitutional challenge to the trial judge’s comments during jury
selection fails because it was not preserved below and he does not
meet an exception to preservation. Additionally, the trial court did
not abuse its discretion in excluding evidence about a possible
second sexual partner, because it was offered for the incorrect
purpose of impeaching the wife and would have been highly
prejudicial. Furthermore, the trial court’s decision to admit instances
of Mr. Beverly’s domestic violence against his wife was correct
because it was offered for a plausible, non-propensity purpose and
the court did not abuse its discretion in limiting the scope of
cross-examination on these incidents. And lastly, the cumulative
error doctrine does not apply, because only a single error occurred
below. Accordingly, we affirm.
                             Background1
   ¶5 In August 2014, Mr. Beverly had been married to his wife,
S.B., for over twenty years. They had two children together, both of
whom lived with S.B. Mr. Beverly and S.B.’s marriage was “very
volatile.” The two experienced periods of separation, and
Mr. Beverly had been kicked out of the house on a few occasions. A

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   1 “In reviewing a jury verdict, we view the evidence and all
reasonable inferences drawn therefrom in a light most favorable to
the verdict.” State v. Boyd, 2001 UT 30, ¶ 2, 25 P.3d 985 (quoting State
v. Hopkins, 1999 UT 98, ¶ 2, 989 P.2d 1065). We recite the facts
accordingly.


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few months before the incident, S.B. allowed Mr. Beverly to move
back in and sleep on her couch because he had nowhere else to live.
At that time, the two had not had a physical relationship for about
two years.
    ¶6 On August 12, 2014, Mr. Beverly returned to S.B.’s house
after being gone for several days. He was “very angry” and accused
S.B. of cheating on him. He called her a “whore” and a “bitch” and
yelled at her for sleeping away from him in a different room. S.B.
then left for her work, where Mr. Beverly showed up a few minutes
later and again began accusing her of cheating on him. He
demanded to see S.B.’s emails, which she showed to him, and he
eventually left.
   ¶7 That evening, S.B. returned home to find Mr. Beverly even
angrier. She told her two sons to go to bed because “Dad’s on one.”
She then retired to her own room. When she was almost asleep,
Mr. Beverly came into her room, slammed the door, and said,
“you’re having sex with me tonight.” She replied, “no, I’m not.”
   ¶8 One of the sons, having heard the door slam, came out of his
room to make sure Mr. Beverly wasn’t hurting S.B. The son listened
outside S.B.’s door for a few seconds and returned to his room.
    ¶9 Mr. Beverly then took off his clothes and instructed S.B. to
take hers off as well. She refused and began to cry. He then told S.B.
to touch him and tell him she missed him and loved him. She
eventually followed his instructions. He proceeded to touch her
breasts and vagina with his hands while she cried quietly. He also
got on top of S.B. and penetrated her vagina with his penis. She
continued to cry. During this incident, he told her to “shut up,
bitch,” but then would say things like, “I miss you, I love you, tell
me you love me.” At one point he also said, “I should tie you up and
let a bunch of . . . mother F’ers fuck you.”
    ¶10 Mr. Beverly ejaculated inside of S.B.’s vagina before
climbing off of her. Not wanting to anger Mr. Beverly further, S.B.
waited until he fell asleep and then called 9-1-1 to report that she had
been raped. Law enforcement arrived and arrested Mr. Beverly.
After his arrest, S.B. was interviewed by an officer from the Unified
Police Department. She also underwent a sexual assault examination
by a trained nurse.
   ¶11 Shortly after his arrest, Mr. Beverly was also interviewed by
an officer. During the interview, Mr. Beverly stated that he had
“penetrated [S.B.’s] vagina with his penis, [and] that he touched her
breasts and her vagina with his hand.” He “acknowledged that [S.B.]

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had said ‘no’ . . . more than on[c]e,” but that he had asked
permission to kiss her, touch her legs, and rub her back and she said
“yes.” He also said that during sex “she was crying, and it was
upsetting him, because at one point they used to be so close,” and
that “he would yell, ‘why—why are you crying? Why are you
crying?’” He then explained to the officer that he had told S.B. that
“your pussy is mine and I’m going to have it.” He also stated in front
of another officer that “it’s a wife’s responsibility under the law of
God, and he’s allowed to have sex with his wife,” that it was the
“right of a man to turn her on,” and that “if he took time he could get
her into the mood.”
   ¶12 Mr. Beverly was subsequently charged with rape, a first
degree felony; forcible sexual abuse, a second degree felony; and
domestic violence in the presence of a child, a class B misdemeanor.
              Testimony Concerning the Choking Incidents
    ¶13 At a preliminary hearing, S.B. testified that Mr. Beverly had
committed prior acts of domestic abuse against her. Specifically, she
testified that he had choked her on two specific occasions, once in
November 1993 and the other in December 2004, and that he had
threatened to kill her in the past. Following the hearing, the
prosecution moved to admit these prior acts of domestic violence at
trial to explain the wife’s conduct and state of mind during the
alleged rape. The trial court granted the prosecution’s motion and
admitted the evidence, concluding “that the proposed evidence is
being offered for a non-character purpose that is relevant to this
matter”—to show whether “the alleged victim was overcome by her
fear for her safety” and “to demonstrate the victim’s state of mind
during the sexual assault.”
    ¶14 At trial, S.B. testified on direct examination that “[there had]
been some times where [Mr. Beverly] physically harmed me, he’s
choked me or threatened to kill me.” S.B. did not testify about any
specific instances of domestic abuse on direct. On cross, however,
defense counsel proceeded to ask S.B. about the details of the
November 1993 choking incident, but S.B. could not remember much
besides the fact that she and Mr. Beverly were in a fight, and that he
had choked her and threatened to kill her. Defense counsel then
asked S.B. about an incident on New Year’s Eve 1993. The
prosecution objected and the trial court required that defense
counsel’s cross be limited to questions about the 2004 choking
incident because the older incidents were “too old” and “no longer
relevant.” Defense counsel then proceeded to cross-examine S.B.
about the 2004 incident, and S.B. admitted that she initiated an

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argument before that incident because she “suspected [Mr. Beverly]
was cheating.”
      The Trial Court’s Comments to Potential Members of the Jury
    ¶15 Before trial, Mr. Beverly wrote a letter to the trial court
asking the court to replace his appointed counsel because his counsel
allegedly told him that he “must understand how ‘you being black
and she (my wife) is white how this will look’” to a jury. The trial
court allowed Mr. Beverly’s counsel to withdraw and appointed him
new counsel.
    ¶16 During the jury selection process, the trial judge spoke to the
jury pool to pass the time while counsel for both sides reviewed the
jury list. The judge explained to the jury pool the jury selection
process and different strategies parties use when selecting a jury. He
mentioned that many of these selection strategies, in his opinion,
“border[] on witchcraft.” He then proceeded to give an example of a
selection strategy:
      For instance, in the O.J. Simpson trial, which a lot of
      you obviously know about, the defense lawyers at that
      time paid some firm $150,000. And what the firm
      would do is they would pull people off of the street
      and then read them different arguments, and see how
      they reacted to those arguments. And then they gave
      the lawyers this perfect demographic of what the jury
      should look like so they would do well in trial.
The judge then explained how, in his experience as a prosecutor and
as a defense lawyer, he believed “the whole [selection strategy] is
baloney,” and “that if I found a person that was open minded, that
hadn’t had an experience similar to something like this,” and was
“intelligent,” that he “always got a very good verdict that way.”
    ¶17 The judge then described the evolution of Anglo-American
jurisprudence, focusing on how cultures have determined guilt in
the past. He spoke of early methods of sword fighting, burning the
accused with a hot iron, casting alleged witches in ponds to see if
they would float, the early stages of judges and juries, and, finally,
the current system in America. He explained that counsel for both
sides in this case were asking so many questions to members of the
jury pool in order to “make sure that none of you knew anything
about this case” and “because we want it to be a fair trial for both
sides.” He contrasted this process with Russia, where he said the
people don’t trust the judicial system and it has become “effectively


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a cash system.” He stated that he believed that Russia was “unlike
our system.”
    ¶18 The judge then noted that “we read on occasion about these
trials that go awry.” He proceeded to use the O.J. Simpson trial as an
example: “for instance, in my opinion, at least, the O.J. [Simpson]
trial and other trials like that, that kind of go off course. And the
reason we hear about those is because it is so unusual to our—for
our system to completely fail like that.” He emphasized that
“[l]iterally, there are thousands of trials that go every day. And yet,
at the end of the year . . . you’d be hard pressed to find 10 of them
that have gone so far off the tracks that something has gone wrong.”
He concluded his remarks by expressing his faith in our judicial
system and the great experience this would be for each person who
participated. Mr. Beverly’s counsel did not object to any of the
judge’s statements during the selection process.
                          The DNA Evidence
    ¶19 On the second day of trial, the State called a forensic
scientist from the Utah State Crime Lab who testified that the
seminal samples from the vaginal swab performed in S.B.’s sexual
assault exam contained a mixture of major and minor DNA profiles.
The scientist stated that the major profile matched Mr. Beverly, but
the minor profile was inconclusive because “[t]he information was
so low that we can’t even make a comparison to even know if there’s
a match.” On cross-examination, defense counsel asked about the
two DNA profiles and focused his questions on the fact that they
were from two different people. The scientist testified that it is clear
that “there was DNA from two separate individuals.” But on
redirect, he noted that the minor profile may have been S.B.’s vaginal
cells, but that was not certain.
    ¶20 The State then raised a concern that defense counsel was
inviting the jury to speculate that the minor profile was another
male’s sperm, which the prosecution claimed violated rule 412 of the
Utah Rules of Evidence. Defense counsel argued that he should be
able to address the possibility of another seminal source to show that
S.B. “made a false statement under oath, because she had lied about
whether or not she was having [a] sexual relationship with someone
else.” The trial court rejected this argument, stating that attacking
S.B.’s “credibility about her sexual life . . . would be precluded under
412.” The trial court also found that defense counsel’s proposed use
of the minor profile did not pass a rule 403 balancing test.
    ¶21 The jury subsequently found Mr. Beverly guilty of rape and
forcible sexual abuse. They acquitted him on the charge of domestic
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violence in the presence of a child. Mr. Beverly timely appealed to
this court. We initially transferred the case to the court of appeals
under Utah Code section 78A-3-102(4). Subsequently, we vacated the
order transferring the case to the court of appeals and recalled the
case. We have jurisdiction under Utah Code section 78A-3-102(3)(i).
                                 Analysis
    ¶22 Mr. Beverly raises four arguments on appeal. First, he
argues that the trial judge’s comments to the jury pool regarding the
O.J. Simpson trial violated his constitutional rights. But he did not
preserve this argument below. Generally speaking, “[w]e . . . will not
consider an issue unless it has been preserved for appeal.”2 But
“[t]his court has recognized three distinct exceptions to preservation:
plain error, ineffective assistance of counsel, and exceptional
circumstances.”3 Thus, Mr. Beverly “must establish the applicability
of one of these exceptions to persuade an appellate court to reach
that issue.”4 He has not shown that an exception applies, and so we
decline to address his argument regarding the trial judge’s
comments.
    ¶23 Second, he argues that the trial court erred when it
excluded, under rules 412 and 403 of the Utah Rules of Evidence, his
proposed use of the minor DNA profile evidence to show the
possibility of a second sexual partner. “With regard to the admission
of evidence, most decisions involve a threshold statement of the legal
principle governing admission or exclusion, findings of facts
pertinent to a determination, and the application of the legal
principle to the facts at hand with regard to admissibility.”5 “We
review the legal questions to make the determination of
admissibility for correctness.”6 “We review the questions of fact for
clear error.”7 We review application of legal principles to the facts of
a case under an abuse of discretion standard.8 A trial court’s ruling

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   2   Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828.
   3   State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d 443.
   4   Id.
   5   Arnold v. Grigsby, 2018 UT 14, ¶ 9, 417 P.3d 606.
   6   Id. (citation omitted) (internal quotation marks omitted).
   7   Id. (citation omitted) (internal quotation marks omitted).
   8   Id.


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on the admissibility of evidence is an application of legal principles
to fact. Thus, “we review the [trial] court’s ruling on admissibility for
abuse of discretion.”9 So a trial court’s decision to admit or exclude
evidence under rule 412 is reviewed under an abuse of discretion
standard.10 Similarly, we review a trial court’s decision to admit or
exclude evidence under rule 403 for an abuse of discretion.11 We
hold that the trial court did not abuse its discretion here.
    ¶24 Third, Mr. Beverly argues that the trial court erred when it
admitted evidence of his prior bad acts under rule 404(b) of the Utah
Rules of Evidence, and when it prohibited Mr. Beverly from
cross-examining S.B. about the 1993 New Year’s Eve incident. We
review a trial court’s admission of prior bad acts under an abuse of
discretion standard.12 Similarly, “[t]rial courts have ‘broad discretion
in restricting the scope of cross-examination, and on appeal the trial
court’s ruling . . . is reviewed under an abuse of discretion
standard.’”13 We hold that the trial court did not abuse its discretion
here.
   ¶25 Finally, he argues that the cumulative effect of the trial
court’s alleged errors deprived him of a fair trial. We will not reverse
a conviction under the cumulative error doctrine unless “the
cumulative effect of the several errors undermines our
confidence . . . that a fair trial was had.”14 Because he has
demonstrated only a single potential error,15 we hold that the
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   9Id. (alteration in original) (citation omitted) (internal quotation
marks omitted).
   10   State v. Tarrats, 2005 UT 50, ¶ 16, 122 P.3d 581.
   11   State v. Kell, 2002 UT 106, ¶ 32, 61 P.3d 1019.
   12   State v. Thornton, 2017 UT 9, ¶ 56, 391 P.3d 1016.
   13Tarrats, 2005 UT 50, ¶ 16 (second alteration in original) (citation
omitted).
   14 State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993) (alteration in
original) (citation omitted) (internal quotation marks omitted).
   15 Although Mr. Beverly alleges a number of errors, we conclude
that all but one of those errors did not constitute an actual error.
Because we resolve the remaining alleged error—trial counsel’s
failure to object to the judge’s comments to the jury—on the ground
that it did not result in sufficient prejudice, we need not determine
whether it constituted an actual error.


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cumulative error doctrine cannot be applied in this case.
Accordingly, we affirm his convictions.
              I. The Trial Judge’s Comments to the Jury Pool
    ¶26 Mr. Beverly first argues that the trial court erred when it
voiced its disapproval of the outcome of the O.J. Simpson trial to the
members of the jury pool during jury selection. Specifically, he
asserts that the trial court’s statements violated his rights under the
U.S. and Utah constitutions to a trial “by an impartial jury” and to
“due process.”16 But he failed to preserve these arguments below. So
he may attack the trial judge’s comments only under one of the three
exceptions to the rule of preservation—ineffective assistance of
counsel, plain error, or extraordinary circumstances. We hold,
however, that he failed to meet any of these three exceptions and so
his argument fails.
    ¶27 Under Utah law, “parties are required to raise and argue an
issue in the trial court ‘in such a way that the court has an
opportunity to rule on [it].’”17 If they fail to raise an argument below,
we generally will not reach it on appeal.18 We refer to this principle
as our rule of preservation.19 We have recognized, however, three
exceptions to this rule: ineffective assistance of counsel, plain error,
and exceptional circumstances.20 Thus, “[w]hen an issue is not
preserved in the trial court, but a party seeks to raise it on appeal, the
party must establish the applicability of one of these exceptions to
persuade an appellate court to reach that issue.” 21 Mr. Beverly has
asserted each of these exceptions, so we review each one separately.




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   16 He also claims that the trial judge’s comments violated rule
19(f) of the Utah Rules of Criminal Procedure and rule 1.2 of the
Utah Code of Judicial Conduct.
   17 State v. Johnson, 2017 UT 76, ¶ 18, 416 P.3d 443 (alteration in
original) (citation omitted).
   18   Id.
   19   See, e.g., State v. Jones, 2015 UT 19, ¶ 49, 345 P.3d 1195.
   20   Johnson, 2017 UT 76, ¶ 19.
   21   Id.


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                     A. Ineffective Assistance of Counsel
    ¶28 Mr. Beverly argues that this court may review his
unpreserved challenge to the trial court’s comments during jury
selection under his ineffective assistance of counsel claim. In order to
establish ineffective assistance of counsel, Mr. Beverly is required “to
meet ‘the heavy burden of showing that (1) trial counsel rendered
deficient performance which fell below an objective standard of
reasonable professional judgment, and (2) counsel’s deficient
performance prejudiced him.’”22 Because he cannot show that he
was prejudiced, Mr. Beverly fails to carry this burden.
    ¶29 Mr. Beverly argues that the trial judge’s “remarks were
inflammatory and misleading” and that “[c]ounsel should have
objected to the remarks at a time when another jury could be
empaneled.” He argues, in effect, that in failing to object his counsel
fell below an objective standard of reasonable professional
judgment. The State argues, however, that we should “presume that
counsel has rendered adequate assistance”23 and, as such,
Mr. Beverly must “persuad[e] the court that there was no
‘conceivable tactical basis for counsel’s actions.’”24 The State claims
that a reasonably prudent attorney, upon hearing the trial judge’s
remarks, would intentionally choose not to object to the remarks in
order to avoid drawing the jury’s attention to them or their potential
significance. In other words, the State argues that there is a sound
strategic tactic behind trial counsel’s failure to object. And because
there is a sound strategic tactic for not objecting, the State contends
that Mr. Beverly cannot show that his counsel was deficient in failing
to object. But because Mr. Beverly cannot show prejudice, we do not
address whether his trial counsel’s performance was deficient.
   ¶30 “To show prejudice in the ineffective assistance of counsel
context, the defendant bears the burden of proving that counsel’s

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   22   State v. Roth, 2001 UT 103, ¶ 5, 37 P.3d 1099 (citation omitted).
   23 See State v. Parker, 2000 UT 51, ¶ 10, 4 P.3d 778 (citation
omitted) (internal quotation marks omitted).
   24  State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (emphasis omitted)
(citation omitted); see also State v. Dunn, 850 P.2d 1201, 1225 (Utah
1993) (“[I]f the challenged act or omission might be considered
sound trial strategy, we will not find that it demonstrates
inadequacy of counsel.”).


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errors actually had an adverse effect on the defense and that there is
a reasonable probability that, but for counsel’s errors, the result of
the proceeding would have been different.”25 ”A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.”26 “In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the evidence
before the judge or jury.”27 This is so because “[s]ome errors will
have had a pervasive effect on the inferences to be drawn from the
evidence, altering the entire evidentiary picture, and some will have
had an isolated, trivial effect.”28 Thus, “a verdict or conclusion only
weakly supported by the record is more likely to have been affected
by errors than one with overwhelming record support.”29
    ¶31 Here, Mr. Beverly cannot show that, but for his trial
counsel’s deficient performance, there is a reasonable probability
that he would have been acquitted, because the overwhelming,
undisputed evidence on the record supports the jury’s conviction in
this case. For example, it is undisputed that S.B. and Mr. Beverly had
not had a physical relationship in two years prior to the incident and
that on August 13, 2014, he was very angry, went into S.B’s room,
slammed the door, and stated “you’re having sex with me tonight.”
It is also undisputed that S.B. said “no” more than once to
Mr. Beverly’s demands, that he had sexual intercourse with her, that
she was crying during the incident, and that she immediately called
9-1-1 thereafter. Mr. Beverly never challenged the truth of any of
these asserted facts. In fact, as the officer who interviewed him
testified, Mr. Beverly voluntarily told the officer that he had sex with
S.B., that she had said “no” more than once, and that she was crying
during the incident. And nothing in the record undermines this
testimony.
    ¶32 Also, even Mr. Beverly’s own witness did not cast much
doubt on the issue of consent. In his defense at trial, Mr. Beverly
called only one witness—his sister, Candy Brown. On direct,

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   25 State v. Moore, 2012 UT 62, ¶ 29 n.5, 289 P.3d 487 (Lee, J.,
dissenting) (citation omitted) (internal quotation marks omitted).
   26   Strickland v. Washington, 466 U.S. 668, 694 (1984).
   27   Id. at 695.
   28   Id. at 695–96.
   29   Id. at 696.


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Ms. Brown testified that S.B. called her the morning after the alleged
rape and that S.B. used the phrase “one thing led to another” to
describe the incident with Mr. Beverly. Ms. Brown also testified that
S.B. told Ms. Brown that Mr. Beverly had “sexually assaulted” her,
that she became upset when Mr. Beverly called her “the B word”
during intercourse, and that she had thought about calling the police
upon hearing that word. Even if these statements could be construed
to in some way support Mr. Beverly’s assertion that the couple
engaged in consensual sex, Ms. Brown’s statements on cross
contradict this notion.
    ¶33 On cross, she also testified that S.B. told her, in addition to
stating that “one thing led to another,” that Mr. Beverly “had raped
her.” In fact, during Ms. Brown’s direct examination, she had
testified that after S.B. told her about the incident, she asked S.B.
“why didn’t you scream or something?,” to which S.B. replied, “I
didn’t want to arouse the boys, they were down the hall.” And,
when asked on cross-examination if “the impression that
[Ms. Brown] had [from S.B.’s remarks on the phone was] that she
had fabricated this rape allegation,” Ms. Brown replied “No,” and
stated that S.B. “didn’t say that it was consensual. She said, one thing
led to another.” This testimony shows that S.B. called Ms. Brown the
day after the incident, told her she was raped by Mr. Beverly, and
that even Ms. Brown did not believe S.B. was fabricating her claims.
    ¶34 Given the overwhelming and undisputed evidence admitted
at trial, it is not reasonably likely the jury would have acquitted
Mr. Beverly if his trial counsel had objected to the trial judge’s
comments during jury selection. Because most of the material facts
were undisputed, Mr. Beverly likely would have been found guilty
regardless of such comments. Thus, he cannot show a reasonable
probability of a different outcome in this case.
   ¶35 Accordingly, we will not disturb the jury verdict under his
ineffective assistance of counsel claim.
                              B. Plain Error
    ¶36 Mr. Beverly also argues that the trial court’s comments
constituted plain error. But, as we have already addressed, the
judge’s comments did not cause him prejudice. Because he has not
shown that the trial court’s error was harmful, he has failed to
establish that the trial judge’s comments constituted plain error.
   ¶37 “‘To demonstrate plain error, a defendant must establish
that ‘(i) [a]n error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful. . . .’ If any one of these

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requirements is not met, plain error is not established.”30 An error is
obvious to the trial court when the party relying on plain error
“‘show[s] that the law governing the error was clear,’ or ‘plainly
settled’ at the time the alleged error was made.”31 An error is
harmful when the same party shows that the error is “of such a
magnitude that there is a reasonable likelihood of a more favorable
outcome for the defendant.”32 In other words, the party must show
that “there is a ‘reasonable probability’ that, ‘but for the alleged
error,’ the outcome in the case would have been different.”33 This
means “that the prejudice test is the same whether under the claim of
ineffective assistance or plain error.”34 Mr. Beverly fails this test.
   ¶38 Mr. Beverly argues that the trial judge committed plain error
in making certain comments to the jury pool at the beginning of trial.
The judge stated he believed that the jury in the O.J. Simpson trial
went “off course,” and that that trial was an example of the judicial
system “completely fail[ing].” Mr. Beverly makes a strong argument
that these comments constituted error. The O.J Simpson trial was of
such notoriety that simply mentioning the case could inflame
passions and ignite conscious or subconscious biases. This is
particularly true here, in a case with a racial dynamic similar to the
one present in the O.J. Simpson trial in which a black man was
accused of murdering his white wife.
    ¶39 Because the risk of prejudicing the parties is high in
circumstances such as this, judges should steer clear of remarking
upon infamous cases and their results, particularly when such a case
is factually similar to the case the potential jury members will be
reviewing. These types of comments are problematic because they
have the potential to do serious harm by confusing jurors, inflaming
their passions, and causing them to question a judge’s impartiality.

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   30 Johnson, 2017 UT 76, ¶ 20 (alterations in original) (citations
omitted).
   31   Id. ¶ 21 (citations omitted).
   32   Id. (citations omitted) (internal quotation marks omitted).
   33   Id. (citations omitted).
   34 State v. McNeil, 2016 UT 3, ¶ 29, 365 P.3d 699; see also Parker,
2000 UT 51, ¶ 10 (”The prejudice test for ineffective assistance of
counsel claims is equivalent to the harmfulness test applied in
assessing plain error.”).


                                        13
                              STATE v. BEVERLY
                            Opinion of the Court

But even though the trial court’s comments in this case were
concerning, we need not determine whether they constituted error or
obvious error. This is so because Mr. Beverly fails to demonstrate
that the comments resulted in prejudice.
    ¶40 Regardless of whether the trial judge’s comments regarding
O.J. Simpson constituted error, or whether such error was obvious,
Mr. Beverly cannot show prejudice, and so he cannot show harm
under his plain error claim. As shown above,35 the overwhelming
evidence of Mr. Beverly’s guilt on the record makes it difficult to
imagine him being acquitted of his charges in this case, whether or
not the trial judge made improper statements about the O.J. Simpson
case. In other words, the overwhelming weight of the evidence in
support of Mr. Beverly’s conviction leads us to conclude that the jury
would have reached the same result even if the trial court had not
made the comments. Because Mr. Beverly cannot show the trial
judge’s alleged error caused sufficient harm in this case, his plain
error argument fails.
                        C. Exceptional Circumstances
   ¶41 Lastly, Mr. Beverly argues that we may also review the trial
court’s comments under the exceptional circumstances doctrine. But
because he cannot show that our failure to review his challenge
would result in a manifest injustice, he fails on this point as well.
    ¶42 The exceptional circumstances exception “is a doctrine that
‘applies to rare procedural anomalies.’”36 We “apply this ‘exception
sparingly, reserving it for the most unusual circumstances where our
failure to consider an issue that was not properly preserved for
appeal would have resulted in manifest injustice.’”37 In order for this
court to review Mr. Beverly’s challenge under this exception, he
must therefore show that there was a rare procedural anomaly that
resulted in manifest injustice.38 But he has failed to satisfy this
requirement.

_____________________________________________________________
   35   Supra ¶¶ 32–35.
   36 Adoption of K.A.S., 2016 UT 55, ¶ 19, 390 P.3d 278 (citation
omitted).
   37   Id. (citation omitted).
   38 State v. Beck, 2006 UT App 177, ¶ 9, 136 P.3d 1288 (“To establish
‘extraordinary circumstances,’ a defendant must establish that the
error is the type of ‘rare procedural anomal[y]’ that, if left
                                                           (Continued)
                                    14
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                           Opinion of the Court

   ¶43 Mr. Beverly argues that a rare procedural anomaly occurs
when counsel is confronted with a situation where he must object to
a trial court’s comments. And he asserts that jury selection
constitutes a “unique procedural circumstance[] where counsel was
present but necessarily focused on selecting a jury rather than on the
judge’s comments to the jury.” So he contends that “[j]udicial
comments during jury selection create a rare procedural anomaly
that, if left unreviewed, would result in manifest injustice.” We
disagree.
    ¶44 As stated above, given the overwhelming, undisputed
evidence of his guilt in this case, Mr. Beverly cannot show he was
prejudiced by the judge’s comments. So even if the trial judge’s
comments constituted a rare procedural anomaly, he cannot show
that this anomaly resulted “in manifest injustice.”39 Accordingly, we
decline to review the trial judge’s comments under the exceptional
circumstance exception.
   ¶45 And because Mr. Beverly has failed to qualify for any
exception to the rule of preservation, his challenge to the trial judge’s
comments fails.
                 II. Rule 412 and the Minor DNA Profile
    ¶46 The second issue Mr. Beverly raises on appeal is whether the
trial court erred in precluding him from using the minor DNA
profile evidence to show the possibility of a second sexual partner.
We hold that the trial court did not err for two reasons. First, at least
one of Mr. Beverly’s intended uses of the minor DNA profile was
prohibited under rule 412 of the Utah Rules of Evidence. Second, the
district court properly kept the evidence out under rule 403 because
such evidence was highly prejudicial and offered little probative
value. We discuss each reason below.
    ¶47 “Utah Rule of Evidence 412 broadly prohibits admission of
‘evidence offered to prove that a victim engaged in other sexual
behavior’ or ‘evidence offered to prove a victim’s sexual
predisposition.’”40 It is meant to restrict the admission of “all

unreviewed, would result in manifest injustice.” (alteration in
original) (quoting State v. Nelson–Waggoner, 2004 UT 29, ¶ 23, 94 P.3d
186 (citation omitted))).
   39   Adoption of K.A.S., 2016 UT 55, ¶ 19.
   40State v. Richardson, 2013 UT 50, ¶ 19, 308 P.3d 526 (quoting
UTAH R. EVID. 412(a)).


                                     15
                             STATE v. BEVERLY
                           Opinion of the Court

activities that involve actual physical conduct . . . or that imply
sexual intercourse or sexual contact.”41 This rule “reflects the
recognition that evidence of the victim’s [sexual behavior] is
ordinarily of no probative value on the issue of whether a rape or
sexual assault occurred.”42 In fact, we have gone so far as stating that
“an alleged victim’s prior sexual conduct ‘is simply not relevant to
any issue in [a] rape prosecution.’”43
   ¶48 But listed in rule 412 itself are express exceptions to this
broad prohibition. “[E]vidence of specific instances of a victim’s
sexual behavior” may be admissible “if offered to prove that
someone other than the defendant was the source of semen, injury,
or other physical evidence.”44 And “evidence of specific instances of
a victim’s sexual behavior with respect to the person accused of the
sexual misconduct” may also be admissible “if offered by the
defendant to prove consent or if offered by the prosecutor.”45
However, “[t]here is no exception in rule 412 that allows for the
admission of past sexual conduct to impeach witnesses.”46
    ¶49 Here, the State called a forensic scientist to testify that the
major DNA profile found in S.B.’s rape kit matched Mr. Beverly’s
DNA sample. On cross-examination, defense counsel inquired into
the contributor of the minor profile that was also found in the kit.
After a short redirect of its witness, the State took issue with defense
counsel’s focus on the minor DNA profile, and asked the trial court
to preclude Mr. Beverly from using the scientist’s testimony about
the minor profile to suggest the possibility of a second sexual
partner. The court then asked defense counsel how his proposed use
of the minor profile evidence was relevant, to which he responded:
         [L]et us take, for example, her assertion that she was
         not cheating. . . . [T]he fact that there is the presence of
         male sperm from another individual found in her

_____________________________________________________________
   41 State v. Tarrats, 2005 UT 50, ¶ 22, 122 P.3d 581 (alteration in
original) (citation omitted) (internal quotation marks omitted).
   42   Id. ¶ 20 (citation omitted) (internal quotation marks omitted).
   43   Id. ¶ 21 (quoting UTAH R. EVID. 412(a) advisory comm. note).
   44   UTAH R. EVID. 412(b)(1).
   45   Id. 412(b)(2).
   46   State v. Boyd, 2001 UT 30, ¶ 38 n.4, 25 P.3d 985.


                                     16
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                          Opinion of the Court

         vagina . . . would indicate that she made a false
         statement under oath, because she had lied about
         whether or not she was having the sexual relationship
         with someone else when, in fact . . . there’s DNA from
         another male in her vagina. That would say that she
         has made false statements under oath. She lied about
         these[] circumstances, and she lied about the
         relationship when she was talking to my client. So, that
         would make it relevant.
The trial court held that this line of argument was barred under rules
412 and 403 of the Utah Rules of Evidence.
    ¶50 Mr. Beverly takes issue with this holding. He argues that
“[b]oth the evidence and argument about the minor DNA profile
suggesting another sexual partner were proper under rule 412,” and
so the trial court erred in precluding such evidence. Specifically, he
contends that “evidence that the wife was cheating would contradict
her testimony that she . . . had nothing to hide” and demonstrates
S.B.’s motive to fabricate. But this is exactly the type of evidence rule
412 is meant to prohibit.
    ¶51 It is clear that rule 412 contains no exception for “the
admission of past sexual conduct to impeach witnesses.”47 Allowing
such argument would effectively destroy the purpose behind the
rule—“to ensure that sexual assault victims are not
‘deterred . . . from participating in prosecutions because of the fear of
unwarranted inquiries into the victim’s sexual behavior,’”48 and to
“safeguard[] the alleged victim from the invasion of privacy,
potential embarrassment and sexual stereotyping that is associated
with public disclosure of intimate sexual details and the infusion of
sexual innuendo into the fact finding process.”49 Allowing
Mr. Beverly to use the minor profile evidence to imply a second
sexual partner, when the only value in doing so is to impeach the
alleged victim, works to embarrass and stereotype S.B., and would
deter future victims from participating in prosecutions of sexual
misconduct. So we hold that the trial court did not err, under rule

_____________________________________________________________
   47   Id.¶
   48 Tarrats, 2005 UT 50, ¶ 20 (alteration in original) (quoting UTAH
R. EVID. 412 advisory comm. note).
   49   UTAH R. EVID. 412(a) advisory comm. note.


                                   17
                           STATE v. BEVERLY
                         Opinion of the Court

412, in precluding him from using the minor profile evidence to
show the possibility of a second sexual partner for impeachment
purposes.
    ¶52 Mr. Beverly also asserts, however, that the minor DNA
profile evidence is admissible to show “an alternate source [of the]
injuries” S.B. sustained during the incident. At trial, the nurse who
performed the sexual assault examination on S.B. testified that S.B.
had bruises on her left elbow and thigh, an abrasion on her left
nipple, a tear on her fourchette, and an abrasion on her perineum,
and that these injuries were consistent with injuries of persons who
have been raped. Mr. Beverly contends that he “should have been
able to argue the possibility that those injuries were caused or
aggravated by another source.” He asserts that rule 412(b)(1)
expressly permits this type of evidence at trial, and the court erred in
keeping it out.50
    ¶53 Conversely, the State argues that rule 412(b)(1) applies only
when “a defendant denies having sex with the victim,” and the
evidence is used to “show someone else is responsible for the
physical evidence.” In other words, the State argues that the
exception in rule 412(b)(1) applies only when the “identity” of the
alleged assaulter is at issue. And, because Mr. Beverly does not
dispute that he engaged in sexual conduct with S.B. and that he was
the source of the semen found, the State argues that the identity of
the alleged assaulter is not at question, and so the trial court did not
err when it held that the “other source” argument was
inadmissible.51

_____________________________________________________________
   50 Rule 412(b)(1) allows a court to admit “evidence of specific
instances of a victim’s sexual behavior, if offered to prove that
someone other than the defendant was the source of the semen,
injury, or other physical evidence.” UTAH R. EVID. 412(b)(1).
   51  The State also argues that the trial court correctly excluded
Mr. Beverly’s proposed use of the minor profile evidence because he
“did not comply with [rule 412’s] notice and hearing requirements.”
Specifically, it contends that, pursuant to rule 412(c)(1), Mr. Beverly
was required to give notice of any evidence and argument regarding
S.B.’s sexual history fourteen days prior to trial, and that he failed to
do so here. But because we hold that the trial court correctly
precluded his proposed use of the minor profile evidence under rule
403, we do not reach the merits of this argument.


                                   18
                             Cite as: 2018 UT 60
                            Opinion of the Court

   ¶54 While Mr. Beverly’s contention in regard to the scope of rule
412(b)(1) may have merit,52 this does not change the ultimate
outcome here. Whether or not rule 412 precludes evidence of a
second source of injury where it is undisputed that the defendant
engaged in the alleged sexual acts, the trial court correctly excluded
Mr. Beverly’s argument under rule 403.
   ¶55 Rule 412 explicitly provides that before any evidence is
admitted through one of its exceptions, it must also be “otherwise
admissible” under the rules of evidence.53 So a defendant attempting
to admit evidence under rule 412(b)(1) must also meet the
requirements of rule 403.54 The trial court correctly held that
Mr. Beverly failed to meet this test.
    ¶56 When reviewing a trial court’s rule 403 determination, we
allow courts “considerable freedom in applying [rule 403] to the
facts.”55 “Trial courts have wide discretion in determining relevance,
probative value, and prejudice.”56 This means that “we will not
reverse the trial court’s [403] ruling unless we find it was ‘beyond




_____________________________________________________________
   52  In State v. Boyd, we held that, despite it being undisputed that
the victim and the defendant had sexual intercourse, evidence of a
second sexual partner “offered to demonstrate another potential
source for [the victim’s] physical condition following the
rape . . . was admissible under rule 412(b)(1).” 2001 UT 30, ¶ 38. So
Mr. Beverly is likely correct that rule 412(b)(1) does not preclude this
evidence if offered as “source” evidence. But that does not mean
“source” evidence should be automatically admitted. As we discuss
below, our holding in Boyd also shows that “source” evidence may
still be excluded under rule 403. See id. ¶ 39.
   53 See UTAH R. EVID. 412(b) (“The court may admit the following
evidence if the evidence is otherwise admissible under these
rules . . . .”).
   54 Boyd, 2001 UT 30, ¶ 39 (“Evidence that fits the exception [to
rule 412] ‘may still be excluded if it does not satisfy requirements of
the other evidence rules, including Rule 403.’” (citation omitted)).
   55   Id. ¶ 40 (alteration in original) (citation omitted).
   56   State v. Kell, 2002 UT 106, ¶ 32, 61 P.3d 1019.


                                      19
                           STATE v. BEVERLY
                         Opinion of the Court

the limits of [reasonableness].’”57 Also, we presume a rape victim’s
past sexual conduct is inadmissible.58
    ¶57 In State v. Boyd, we considered an identical issue to the case
at hand and determined that, even if “source” evidence is allowed
under rule 412(b)(1), that evidence may still be kept out under rule
403.59 In Boyd, the defendant was charged with raping the victim by
pinning her down in a wooded area.60 Because it was undisputed
that the defendant had sex with the victim—the issue before the jury
“was whether or not [the victim] consented.”61 At trial, a doctor
testified that, upon physical examination of the victim, he found
bruising and debris in the victim’s vaginal area, which he claimed
was consistent with the victim’s allegation of rape.62 The doctor also
testified that the bruising and debris “could have been the result of
consensual intercourse.”63 The defendant then sought to introduce
evidence that the victim had engaged in sex with another person, in
the same wooded area, prior to the alleged rape.64 The defendant
argued that the evidence was probative to the question of why there
was debris and some bruising in the victim’s vaginal area.65 The trial
court refused to admit the evidence under rule 403, however,

_____________________________________________________________
   57Boyd, 2001 UT 30, ¶ 40 (second alteration in original) (citation
omitted) (internal quotation marks omitted).
   58 Id. ¶ 41 (“When applying rule 403 to the admissibility of a rape
victim’s past sexual conduct, there is a presumption of
inadmissibility.”).
   59 Id. ¶¶ 41–43. Mr. Beverly failed to address this court’s 403
determination in Boyd, despite the fact that it is directly on point and
the State relied heavily on it in its briefing. Instead, Mr. Beverly
focuses only on the Boyd court’s holding that the second source
evidence in that case was not precluded under rule 412. But, as noted
above, evidence that may be admitted under rule 412(b)(1) must also
be “otherwise admissible” under rule 403.
   60   Id. ¶ 4.
   61   Id. ¶ 42.
   62   Id. ¶ 43.
   63   Id.
   64   Id. ¶¶ 8, 33.
   65   Id. ¶¶ 42–43.


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                           Opinion of the Court

holding that the “probative value of the evidence did not outweigh
its inherent prejudicial value.”66
   ¶58 This court affirmed on appeal.67 We reasoned that because
the doctor testified that the physical evidence was indicative of both
rape and consensual sex, “demonstrating an alternate source for
some of the [evidence] was not highly probative to the question that
was before the jury, i.e., whether the intercourse was consensual.”68
And, because the defendant’s evidence was “inherent[ly]
prejudicial,” we held the district court did not abuse its discretion.69
    ¶59 Here, Mr. Beverly seeks to admit evidence identical to the
evidence the defendant sought to admit in Boyd. He seeks to admit
other “source” evidence under rule 412(b)(1) to refute the nurse’s
statements that S.B.’s injuries were consistent with her description of
the alleged rape. But, like the defendant in Boyd, Mr. Beverly does
not contest that he had sexual intercourse with S.B., and so the only
issue before the jury was whether S.B. consented. And, like the
doctor in Boyd, the nurse here also testified that these injuries were
consistent with those caused by consensual sex. Thus, it is safe to say
that, like Boyd, Mr. Beverly’s use of minor profile evidence was
properly excluded because it is only slightly probative of the issue of
consent, but is highly prejudicial.
   ¶60 Furthermore, the evidence Mr. Beverly seeks to admit in this
case is even less probative than that in Boyd, given the fact that the
forensic scientist could not determine whether the minor profile was
from another male or simply S.B.’s cells left over from the scraping
process. The district court noted this in its decision:
         I think the 403 analysis here kicks in [to prohibit
         Mr. Beverly’s argument] because the probative value of
         this evidence that is brought is, number one, the other
         strain of the cells that were found there were not
         determined to be male or female, and very well,
         because of the scraping process, it sounds to me more
         likely than not, and that’s not the expert’s words, that’s
         my assumption, that those cells were probably vaginal
_____________________________________________________________
   66   Id. ¶ 43.
   67   Id.
   68   Id.
   69   Id.


                                    21
                            STATE v. BEVERLY
                          Opinion of the Court

         cells that came from scraping the vagina to try to
         include the semen.
Because it is unknown whether the minor DNA profile matches that
of another male, or is simply S.B.’s own cells, Mr. Beverly is asking
the jury to speculate as to possible sexual conduct that he cannot
even show occurred by the preponderance of the evidence. So
Mr. Beverly’s “source” evidence and argument has little value.
    ¶61 Because the probative value of the minor profile evidence is
slight and the prejudicial value is high, the trial court correctly
precluded Mr. Beverly’s proposed use of the minor profile evidence.
Accordingly, we affirm the trial court’s ruling on this point.
             III. Rule 404(b) and Mr. Beverly’s Prior Bad Acts
   ¶62 Mr. Beverly also argues that the district court erred in
admitting testimony concerning instances where he had choked S.B.
and threatened her life, and in prohibiting him from inquiring into
the details of a 1993 New Year’s Eve incident on cross-examination.
We disagree. The trial court did not err in admitting Mr. Beverly’s
prior bad acts, because they were brought for a plausible,
non-propensity reason, and these acts were highly probative of the
central issue in the case—S.B.’s mental state during the alleged rape.
Similarly, the court did not err in limiting defense counsel’s
cross-examination, because the 1993 New Year’s Eve incident did not
involve instances of violence or death threats—the subject matter of
S.B.’s testimony—and defense counsel was permitted to
contextualize both the November 1993 choking incident and the
December 2004 choking incident.
A. The Trial Court Did Not Abuse Its Discretion in Admitting
                         “Bad Acts” Evidence
   ¶63 Under Utah law, “[e]vidence of prior bad acts must clear
several evidentiary hurdles before admission—rules 404(b), 402, and
403.”70
   ¶64 Under rule 404(b), evidence of a prior bad 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.”71 But “evidence may be admissible for another purpose,”
_____________________________________________________________
   70State 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.
   71   UTAH R. EVID. 404(b)(1).


                                    22
                         Cite as: 2018 UT 60
                         Opinion of the Court

including to show a person’s mental state during the commission of
a crime.72 So in order to clear the rule 404(b) hurdle, we must decide
“whether the evidence has a plausible, avowed purpose beyond the
propensity purpose that the rule deems improper.”73 When a court
finds a “plausible, avowed” non-propensity purpose, “the evidence
is [deemed] presumptively admissible (subject to rule 402 and 403
analysis).”74
    ¶65 At a preliminary hearing, S.B. testified that Mr. Beverly had
a history of domestic violence. She testified that on two occasions, in
November 1993 and December 2004, he had choked her. She also
testified that during the course of their marriage, Mr. Beverly had
verbally threatened her life on multiple occasions. Defense counsel
objected to this testimony at the hearing, claiming that it was
impermissible character evidence. On direct examination at trial, S.B.
then testified that “there’s been some times where he’s physically
harmed me, he’s choked me or threatened to kill me.” She did not
mention any details about specific instances.
    ¶66 Mr. Beverly argues that the trial court erred in admitting
evidence of his prior bad acts because it was admitted as character
evidence. But the State argues, and the trial court agreed below, that
this evidence was admitted to show S.B.’s mental state of during the
alleged rape. Specifically, the trial court admitted this evidence
because his “domestic violence history towards the alleged victim
goes to whether the alleged victim . . . was overcome by fear for her
safety” and “explain[s] to the jury the mental state of the alleged
victim at the time of the sexual act.” The State argues that this was a
“plausible” purpose beyond propensity and so should be admitted.
We agree.
    ¶67 The trial court’s conclusion—that the domestic violence
evidence was for a “plausible, avowed purpose beyond
propensity”—was not error for two reasons. First, there were ample
grounds for the court’s determination. Testimony at trial showed
that S.B. did not physically resist Mr. Beverly’s sexual advances. S.B.
testified that after verbally refusing, she eventually did what

_____________________________________________________________
   72   Id. 404(b)(2).
   73 State v. Thornton, 2017 UT 9, ¶ 58, 391 P.3d 1016 (emphasis
omitted).
   74   Id.


                                  23
                          STATE v. BEVERLY
                        Opinion of the Court

Mr. Beverly asked her to do: she took her clothes off, touched him,
and did not physically resist sexual intercourse. The question for the
jury, therefore, was whether the sexual encounter was consensual—
in other words, what was S.B. thinking during the incident? At trial,
the State sought to admit Mr. Beverly’s history of domestic violence,
claiming that his history was necessary to explain why S.B. did not
physically resist. Because S.B.’s mental state was the central issue in
the case, it is not only plausible that the State intended the domestic
violence evidence to be admitted to show S.B.’s state of mind, it is
highly likely this was its main purpose.
    ¶68 Second, the fact that the jury could use the domestic
violence evidence for an improper character purpose does not
preclude the evidence under rule 404(b). Mr. Beverly admits that
establishing S.B.’s state of mind during the incident is a proper
purpose, and even that it may have been one of the State’s purposes
in admitting the evidence. But he argues that the State was not
required to show why S.B. did not physically resist under the law,
and so it is “more likely that the prosecution wished to introduce
this evidence to create ‘an alternative, illegitimate narrative.’” We
have stated, however, that the fact that “the prior misconduct
evidence [can possibly] sustain an improper inference . . . is not
enough to dictate the exclusion of this evidence under rule 404(b).” 75
When we can say that the evidence has a claimed non-propensity
purpose that is plausible, the presumption is that a court should
admit it.76 So the trial court did not err in its decision under rule
404(b).
   ¶69 But that is not the end of the evaluation.77 “[E]ven if the past
misconduct evidence in this case could plausibly be deemed to have

_____________________________________________________________
   75   Id.
   76 Id. (“The threshold 404(b) question is whether the evidence has
a plausible, avowed purpose beyond the propensity purpose that the
rule deems improper. If it does then the evidence is presumptively
admissible (subject to rule 402 and 403 analysis).”(emphasis
omitted)).
   77 The next step would be to evaluate the “bad acts” evidence for
relevance under rule 402. But Mr. Beverly did not argue the bad acts
evidence was precluded under this rule—likely because the evidence
is clearly relevant. Evidence is considered relevant if “it has any
tendency to make a fact more or less probable than it would be
                                                        (Continued)
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                             Cite as: 2018 UT 60
                             Opinion of the Court

been aimed at a legitimate purpose under rule 404(b), it [may] still
fail under the balancing framework required by rule 403.” 78 Under
rule 403, “[t]he court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative
evidence.”79 Trial courts are given considerable discretion when
making this determination.80
    ¶70 Here, the trial court held that the domestic violence
evidence did not violate rule 403 of the Utah Rules of Evidence. In its
minute entry on the matter, the court explicitly stated that “[t]he
probative value of the proposed evidence is sizable” and that the
question of “[w]hether a person consents to a sexual act is very
difficult to prove because it is impossible to determine the thoughts
of another person.” It then found the domestic violence evidence the
only “source that would explain the alleged victim’s mental state.”
The court admitted that “the jury may think less of [Mr. Beverly]
because of the ‘bad acts’ evidence,” but it concluded that “whatever
damage [to Mr. Beverly] . . . is slight, when weighed against the
probative value of the evidence.”
     ¶71 Mr. Beverly argues that the trial court’s 403 determination
was wrong, and he asserts that the domestic violence evidence had
little probative value. Specifically, he claims that the trial court
should have precluded this evidence because evidence of S.B.’s
mental state was not crucial to the prosecution and has little
probative value when compared to the inherent prejudice that comes
from the jury hearing about his prior acts of domestic violence. We
disagree with his arguments.
   ¶72 The trial court did not err in admitting Mr. Beverly’s prior
bad acts, because the probative value of this evidence was

without the evidence.” UTAH R. EVID. 401(a) (emphasis added). The
domestic violence evidence is obviously relevant to this case—it
makes it more probable that S.B. was scared of Mr. Beverly and so
chose not to physically resist his advances. So we proceed to the next
hurdle—rule 403.
   78State v. Verde, 2012 UT 60, ¶ 31, 296 P.3d 673, abrogated on other
grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016.
   79   UTAH R. EVID. 403.
   80   State v. Kell, 2002 UT 106, ¶ 32, 61 P.3d 1019.


                                     25
                              STATE v. BEVERLY
                             Opinion of the Court

overwhelming. At trial, Mr. Beverly attempted to show that he had
gotten S.B. “in the mood” and that she eventually consented. For
support, he highlighted the fact that S.B. did not physically resist his
advances and that she touched him and told him she loved him.
Evidence that he had previously choked her and threatened to kill
her was therefore both crucial and highly probative to refute
Mr. Beverly’s defense and to provide a reason, outside of consent, for
S.B.’s actions and statements. In fact, his prior acts of domestic
violence were, as the trial court noted, the State’s only evidence that
would explain S.B.’s alleged mental state during the incident. So its
probative value was substantial. While this evidence was prejudicial,
in that it reflected negatively on Mr. Beverly, given its overwhelming
probative value we cannot say that “its probative value is
substantially outweighed by a danger of . . . unfair prejudice.”81
Accordingly, we hold that the trial court did not err in admitting the
404(b) evidence.
        B. The Trial Court Did Not Err in Limiting Defense Counsel’s
                             Cross-Examination
    ¶73 Mr. Beverly also argues that the trial court erred when it
precluded him on cross-examination from questioning S.B. about the
details of specific instances of abuse. Specifically, he argues that the
court erred by not allowing him to contextualize the choking
incidents or to inquire into the 1993 New Year’s Eve incident. But his
argument is flawed. The trial court did not err here because
Mr. Beverly was allowed to contextualize the two choking incidents
at trial. Similarly, the trial court did not abuse its discretion in
limiting defense counsel’s cross-examination of the 1993 New Year’s
Eve incident, because that incident did not involve domestic violence
or death threats and so had little probative value.
    ¶74 As noted above, S.B. testified at a preliminary hearing that
she was choked by Mr. Beverly on two occasions—once in
November 1993, the other in December 2004—and that he had
verbally threatened her life in the past. At trial, S.B. did not speak
about these specific instances on direct-examination. Instead, she
stated only that “there’s been some times where he’s physically
harmed me, he’s choked me or threatened to kill me.” On cross,
defense counsel questioned S.B. about the specific details of those
choking incidents. Defense counsel first asked S.B. about the

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   81   UTAH R. EVID. 403.


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                        Cite as: 2018 UT 60
                        Opinion of the Court

November 1993 incident. She replied that she did not remember
much about the circumstances of the incident, but did remember
being choked. Defense counsel did not inquire further into the
November 1993 incident, nor was his questioning limited by the trial
court with respect to this incident. Defense counsel then attempted
to ask about the 1993 New Year’s Eve incident, and the State objected
on grounds that this line of questioning violated rule 403. The trial
court prohibited defense counsel from inquiring into the 1993 New
Year’s Eve incident because it was “too old” and was “no longer
relevant.” But the court allowed defense counsel to question S.B.
about the December 2004 incident, stating that counsel “can go into
it as much as he chooses.” Defense counsel then questioned S.B.
about the details of the December 2004 choking incident.
   ¶75 Mr. Beverly first argues that the trial court erred because he
was unable to inquire into choking incidents and so was unable to
contextualize them for the jury. But, as noted above, counsel did
question S.B. about both the November 1993 and the December 2004
choking incidents. In fact, the court expressly stated that defense
counsel could inquire into the December 2004 choking incident as
much as he desired and did not limit questioning on the November
1993 incident. So defense counsel was clearly able to contextualize
these instances, and his argument is without merit.
    ¶76 Despite having sufficient opportunity to inquire into these
incidents, Mr. Beverly also takes issue with the fact that he was
unable to inquire into details about “one incident of alleged
abuse”—the 1993 New Year’s Eve incident.82 He claims that he
should have been able to show how old the choking incidents were
and that some arguments resulted in both parties getting in trouble
with the police. But his assertion that the 1993 New Year’s Eve
incident involved violence or choking is a misrepresentation. S.B.
made no mention of choking or violence when describing this
incident at the preliminary hearing. Despite extensive questioning by
defense counsel about the 1993 New Year’s Eve incident, S.B.
testified only that she and Mr. Beverly were in an argument that day
and were both cited for disorderly conduct. In fact, on direct
examination in that hearing, the State specifically asked her if any
physical violence occurred on the 1993 New Year’s Eve incident, and
S.B. said “No.” So inquiring about the 1993 New Year’s Eve incident
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   82 His counsel described this incident as a “third choking
incident” before the district court below.


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                           Opinion of the Court

would not date the choking incidents, as no choking took place
during this incident, or show that both parties were cited during
violent disputes, as no violence took place during this incident. The
trial court therefore did not err in limiting defense counsel’s
cross-examination on this point.
    ¶77 Additionally, to the extent that Mr. Beverly argues that he
should have been allowed to inquire into the 1993 New Year’s Eve
incident, despite the fact that no violence occurred on that day, his
argument fails. “Trial courts have ‘broad discretion in restricting the
scope of cross-examination’”83 and in making rule 403
determinations.84 Here, the trial court concluded that this incident
was “so long ago, and it’s so remote, that I—I don’t believe it’s
relevant at this point to get into the absolute details.” The court’s
holding is reasonable. The 1993 New Year’s Eve incident did not
involve violence or choking but was merely a verbal fight. And it
happened more than twenty years before the alleged rape. Given the
age and context of the incident, its probative value seems slight. But
the risk of confusing the jury seems high—as counsel was trying to
add yet another trial within a trial. So the trial court did not abuse its
discretion in precluding inquiry into this incident.
   ¶78 Accordingly, the trial court did not err in admitting
Mr. Beverly’s prior acts of domestic violence and did not err in
limiting defense counsel’s inquiry on cross-examination.
                           IV. Cumulative Error
    ¶79 Finally, Mr. Beverly argues that the cumulative effect of
these alleged errors “requires reversal.” But because Mr. Beverly has
failed to demonstrate the existence of more than a single potential
error, his argument fails.
     ¶80 Under the doctrine of cumulative error, we will reverse “if
‘the cumulative effect of the several errors undermines our confidence
. . . that a fair trial was had.’”85 This means that “the



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   83 State v. Tarrats, 2005 UT 50, ¶ 16, 122 P.3d 581 (citation
omitted).
   84   Kell, 2002 UT 106, ¶ 32.
   85 State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993) (alteration in
original) (emphasis added) (citation omitted).


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                         Cite as: 2018 UT 60
                         Opinion of the Court

cumulative-error doctrine has no application when only a single
error has been determined or assumed on appeal.”86
   ¶81 Here, Mr. Beverly could potentially prove only that a single
error occurred in his trial below—his counsel’s failure in objecting to
the trial judge’s comments.87 He has not shown that the trial court
abused its discretion in precluding his use of the minor DNA profile
evidence, in admitting evidence of his prior bad acts under rule
404(b), or in limiting defense counsel’s cross-examination on these
prior bad acts. Because he could potentially prove only a single error
on appeal, the cumulative error doctrine cannot apply, and so
Mr. Beverly’s cumulative error argument fails.
                             Conclusion
   ¶82 Mr. Beverly asserts that the trial judge violated his
constitutional rights when the judge made comments to the jury pool
about the O.J. Simpson case. But we decline to review this argument
because Mr. Beverly failed to preserve these claims below and failed
to meet an exception to preservation on appeal.
   ¶83 Additionally, we affirm the trial court’s evidentiary rulings.
The trial court did not err in concluding that the alleged second
sexual partner evidence created a danger of unfair prejudice that
substantially outweighed the evidence’s probative value. The trial
court also did not error in admitting the evidence of Mr. Beverly’s
prior bad acts or limiting defense counsel’s cross-examination of S.B.
on that point. Finally, we hold that the cumulative error doctrine
does not apply to this case because Mr. Beverly has identified only a
single potential error below—that his trial counsel failed to object to
the trial judge’s comments to the jury. Accordingly, we affirm
Mr. Beverly’s convictions.



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   86Conocophillips Co. v. Utah Dep’t of Transp., 2017 UT App 68, ¶ 32,
397 P.3d 772.
   87 Because this alleged failure did not result in Strickland level
prejudice, we did not need to decide whether it constituted an error
as part of Mr. Beverly’s ineffective assistance of counsel claim. We
again decline to decide whether this alleged failure constituted an
error as part of our cumulative error analysis because, even if we
assume that it was an error, a single error is insufficient to sustain a
cumulative error claim.


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