State v. Tarrats

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2005 UT 50
This opinion is subject to revision before final publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH -
State of Utah, No. 20030905
Plaintiff and Appellee,
V.
FILED
Jonathan Tarrats,
Defendant and Appellant. August 9, 2005
-
Second District, Weber County
The Honorable Parley R. Baldwin
No. 021901524
Attorneys : Mark L. Shurtleff, Att'y Gen., Marian Decker, Asst. Att'y Gen., Salt Lake City, for plaintiff Michael D. Bouwhuis, Ogden, for defendant
WILKINS, Associate Chief Justice:
I1 Jonathan Tarrats, the defendant in a rape prosecution, appeals the trial court's interlocutory order excluding evidence that the accusing witness had allegedly made a prior false rape claim against another man in an unrelated incident. The sole issue on appeal is whether the trial court abused its discretion in finding Tarrats' evidence that the prior claim was false inadmissible under Utah Rules of Evidence 412 and 403. We affirm the ruling of the trial court.
BACKGROUND
I2 Tarrats and his accuser were introduced to each other by a mutual friend, Jami Gardner. Shortly after the introduction, the two agreed to go on a date. The accuser picked Tarrats up from his place of work at around 11 p.m. The two then drove to Tarrats' apartment, where they spent the evening watching videos. Both agree that consensual kissing activity took place during the evening. The accuser later asked to stay the night at Tarrats' apartment due to her discomfort at driving home alone at such a late hour, but repeatedly informed him that

No. 20030905 2
no sexual contact would take place during the night. Tarrats
agreed to permit her to sleep over.
¶3 The accuser alleges that Tarrats continued to make
sexual advances, which she rebuffed, but that he ultimately
refused to take no for an answer, pulled down her pants, ripping
her zipper in the process, and raped her. Immediately after the
encounter, the accuser returned to her own home. The following
morning, she reported the incident to her roommate, Ms. Gardner,
and her roommate’s mother. She then sought medical attention at
a nearby hospital, where a rape examination was performed. She
also reported the incident to the police, who commenced a
criminal investigation of the matter.
¶4 As part of this police investigation, the accuser was
fitted with a wire to record a planned confrontation with
Tarrats. The accuser’s friend, Ms. Gardner, helped arrange this
meeting at a nearby mall, and she further assisted in securing
the wire under the accuser’s clothing. The accuser testified at
a preliminary hearing that Tarrats admitted in the recorded
conversation that he knew that she had not consented to the sex
but that he had continued anyway because he was sexually excited.
¶5 Tarrats now contends that the accuser consented to the
sex through her physical behavior, though he admits that she
verbally indicated her refusal. He suggests that the reason his
accuser is now claiming that he raped her is that she was
offended when he called her by her friend’s name after the sexual
encounter.
¶6 On April 10, 2003, Tarrats moved in limine for a ruling
authorizing him to impeach the accuser’s testimony with evidence
that she had falsely accused another man of rape in an unrelated
prior incident. His sole evidence that the prior allegation was
untruthful came from the testimony of Ms. Gardner, who admitted
that she no longer liked the accuser due to several points of
interpersonal conflict unrelated to the trial.
¶7 The trial court held a series of evidentiary hearings
on the matter, hearing testimony from the accuser; several
individuals to whom she had reported the previous rape, including
Ms. Gardner; a police detective investigating the current charges
against Tarrats; and a private investigator hired by the defense.
¶8 The accuser testified at one of the hearings that she
had told the truth to her mother and those of her friends in whom
she had confided when she said that she had been raped by an
unknown assailant in the bathroom of a home during a New Year’s

3 No. 20030905
party on January 1, 2001, and denied ever having recanted that
allegation. She never reported the incident to police. The
accuser’s mother and friends all likewise testified that the
accuser had informed them of the incident and had never later
recanted her story.
¶9 The only witness to testify that the accuser had
recanted was Ms. Garnder. According to Ms. Gardner, the accuser
had admitted to her that she had engaged in consensual sex at the
New Year’s party and had only told people that she had been raped
to avoid upsetting her then boyfriend. Ms. Gardner further
testified that, despite her participation in the police
investigation, she always doubted whether Tarrats had really
raped the accuser.
¶10 The prosecutor was able to elicit from Ms. Gardner that
she did not report to detectives her suspicions that the accuser
was falsely alleging a rape claim against Tarrats and that the
accuser also had recanted a previous rape claim until nearly a
year after the Tarrats investigation began, shortly after
discovering that the accuser had kissed Ms. Gardner’s boyfriend.
She further admitted that she was no longer friends with the
accuser because the accuser had kissed her boyfriend and owed her
money, among other reasons unrelated to the case against the
defendant.
¶11 Ms. Garnder claimed that she did not report the
recantation or her doubts about the veracity of the instant
allegation to the investigating police detectives, despite having
numerous opportunities to do so. She said that she was able to
report the recantation of the prior rape claim to defense
counsel, however, because the private detective the defense had
hired called her on her cell phone and asked her about it. She
claimed that the private detective learned of the recantation
from another friend of Ms. Gardner and the accuser.
¶12 The private investigator, however, testified that he
learned of the recantation through Ms. Gardner, who had contacted
him and reported the recantation herself. The friend whom Ms.
Gardner claimed had told the private investigator about the
recantation also denied under oath ever having done so, and
further denied ever hearing the accuser recant. The witness also
testified that she and the accuser were no longer friends for
reasons unrelated to either the current proceedings or the prior
allegation.
¶13 Thus, without Ms. Gardner’s testimony that the accuser
had recanted a prior rape allegation, Tarrats would have no basis

No. 20030905 4
to allege that the prior allegation was false, and testimony
about the prior allegation and recantation would be excluded
under Utah’s rape shield law, Utah Rule of Evidence 412. The
question before the judge was whether Ms. Gardner’s testimony was
sufficient to prove by a preponderance of the evidence that the
accuser had made a prior false allegation. He concluded that it
was not, and held the evidence inadmissible under rules 412 and 403.
¶14 First, the court reasoned that, since admissibility of
a prior rape claim turns on the truthfulness of that claim, and
since the burden is on the proponent to show that the probative
value of evidence outweighs its prejudicial nature, evidence that
a victim had falsely accused another individual of raping her in
the past would be inadmissible unless the proponent made a
threshold showing that the prior allegation was false. Tarrats,
it ruled, failed to show by a preponderance of the evidence that
the allegation was false, so Ms. Gardner’s testimony about the
prior incident would not be admitted at trial.
¶15 The court next stated that, even if the rape shield law
had not applied, the evidence still would not be admissible
because the prejudicial nature of the testimony outweighed its
probative value in this case, in violation of Utah Rule of
Evidence 403. Tarrats appealed the ruling to this court. We
have jurisdiction pursuant to Utah Code Ann. § 78-2-2.
STANDARD OF REVIEW
¶16 Trial 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.”
State v. Gomez, 2002 UT 120, ¶ 12, 63 P.3d 72 (internal
quotations omitted). “Likewise, ‘trial courts have wide
discretion in determining relevance, probative value, and
prejudice.’” Id. (quoting State v. Kell, 2002 UT 106, ¶ 27, 61
P.3d 1019). Therefore, we “‘will not reverse the trial court’s
ruling on evidentiary issues unless it is manifest that the trial
court so abused its discretion that there is a likelihood that
injustice resulted.’” Id. (quoting State v. Gentry, 747 P.2d
1032, 1035 (Utah 1987)).
ANALYSIS
¶17 The question before us today is whether the trial court
abused its discretion in excluding Ms. Gardner’s testimony under
Utah’s rules of evidence. We hold that it did not.

1 The rule does provide limited enumerated exceptions to the
blanket inadmissibility. These exceptions allow specific
instances of the accuser’s past sexual behavior to be admitted,
but they do not include incidents of past sexual abuse. See Utah
R. Evid. 412(b)(1)-(3). The defendant does not claim that his
evidence qualifies under one of the enumerated exceptions, so we
do not discuss the exceptions in detail.
5 No. 20030905
¶18 First, the trial court did not act outside its
discretion in requiring Tarrats to demonstrate the falsity of the
accuser’s prior allegation by a preponderance of the evidence,
nor did it do so in determining that Tarrats failed to establish
its falsity by that standard.
¶19 Second, the trial court did not abuse its discretion in
ruling the evidence inadmissible under Utah Rule of Evidence 403.
It concluded that, because of the factual dissimilarities between
the two accusations, any probative value the recantation of the
prior allegation could offer would be low and would be outweighed
by its highly prejudicial nature and thus should be barred by the
rule. We find no abuse of discretion in this conclusion. We
discuss both reasons for our holding in greater detail below.
I. UTAH RULE OF EVIDENCE 412: UTAH’S RAPE SHIELD LAW
¶20 We adopted Utah Rule of Evidence 412, patterned after
the federal rape shield 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.” Utah R. Evid. 412 advisory comm.
note. The rule “reflects the recognition that evidence of the
victim’s unchastity is ordinarily of no probative value on the
issue of whether a rape or sexual assault occurred.” 2 Jack B.
Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence §
412.02[1] (2d ed. 2004). The following evidence is inadmissible
under rule 412:
(a)(1) evidence offered to prove that any
alleged victim engaged in other sexual
behavior; and
(a)(2) evidence offered to prove any alleged
victim’s sexual predisposition.
Utah R. Evid. 412(a).1

No. 20030905 6
¶21 In adopting the rape shield rule in Utah, we recognized
and agreed with the general consensus among courts that an
alleged victim’s prior sexual conduct “‘is simply not relevant to
any issue in the rape prosecution including consent.’” Id.
advisory comm. note (quoting State v. Johns, 615 P.2d 1260, 1264
(Utah 1980)). Even where such evidence bears some marginal
relevance, “it has ‘an unusual propensity to unfairly prejudice,
inflame, or mislead the jury’ and is ‘likely to distort the
jury’s deliberative process,’” id. (quoting State v. Dibello, 780
P.2d 1221, 1229 (Utah 1989)), and should therefore be excluded.
¶22 This rule applies to “all activities that involve
actual physical conduct . . . or that imply sexual intercourse or
sexual contact.” Id. ; see, e.g., United States v. One Feather,
702 F.2d 736, 739 (8th Cir. 1983) (holding evidence of the birth
of an illegitimate child inadmissible). It also excludes all
evidence that “may have a sexual connotation for the fact
finder.” Utah R. Evid. 412 advisory comm. note. Thus, evidence
of a victim’s use of contraceptives, affliction with venereal
disease, or mothering of an illegitimate child are all deemed too
sexually charged to be admitted under this rule. Id.
¶23 The advisory committee notes to rule 412 also provide
that, notwithstanding the rule’s careful circumscription of all
evidence of sexual behavior, “[e]vidence offered to prove
allegedly false prior claims by the victim is not barred by Rule
412.” Id. Though not excluded under rule 412, the evidence will
only be admitted if it survives the tests of the other rules of
evidence. Id.
¶24 While “evidence of false statements of unrelated sexual
assaults are not excluded by the rape shield rule because they
are not evidence of sexual conduct” per se, State v. West, 24
P.3d 648, 654 (Haw. 2001), we further recognize that any
potential probative value these prior allegations of rape bear
depends upon them being false, see, e.g., Hughes v. Raines , 641
F.2d 790, 792 (9th Cir. 1981). A truthful prior allegation of
rape carries no value whatsoever in the trial process, and its
admission into evidence bears a high potential for humiliating
the accuser, discouraging victims from reporting sexual crimes
against them, and introducing irrelevant and collateral issues
that may confuse or distract the jury. It was to avoid these
very problems that rule 412 was adopted.
¶25 Thus, in order to ensure that such improper evidence is
not admitted, a defendant who wishes to impeach his accuser’s
credibility with the accuser’s prior allegation of rape must
first demonstrate by a preponderance of the evidence that the

2 See, e.g., Quinn v. Haynes, 234 F.3d 837, 846 (4th Cir.
2000)(upholding the state court’s determination that the
defendant must prove by a preponderance of the evidence that the
prior rape allegation was false); Hughes, 641 F.2d at 792
(requiring that it must be “shown convincingly” by the defendant
that the prior allegations were false); Morgan v. State, 54 P.3d
332, 339 (Alaska Ct. App. 2002) (applying a preponderance of the
evidence standard and recognizing that standard to be used in the
majority of jurisdictions); West, 24 P.3d at 659-60 (same).
7 No. 20030905
allegation was false. Not requiring this threshold showing would
severely undercut rule 412's purposes by allowing defendants to
circumvent the prohibition on introducing either sexually charged
information, or simply irrelevant, humiliating information, about
the accuser by slipping such information into evidence with only
a bald allegation that the prior accusation was false. Trial
judges are granted wide discretion in limiting the scope and
extent of cross-examination and the admissibility of evidence to
that end.
¶26 Thus, in accord with other jurisdictions that have
decided the matter,2 we hold that protection of the purposes of
our rape shield law requires that the defendant make a threshold
showing of the falsity of prior allegations by a preponderance of
the evidence before he can use those allegations to impeach the
accuser’s testimony at trial. Through this mechanism, we can
better ensure that admissible evidence of false rape allegations
is brought before a jury, and that inadmissible evidence of
truthful prior allegations is not introduced to confuse or
prejudice their truth-uncovering role.
¶27 Our holding today is in conformity with our prior case
law. In State v. Martin, 1999 UT 72, ¶ 16, 984 P.2d 975 (Martin
I), the defendant appealed his rape conviction on the grounds
that he was not able to conduct adequate discovery of an issue
that may have been central to his case: the identity of a man the
victim had alleged had raped her on a previous occasion. We
agreed with Martin and remanded the case back to the trial court
for further discovery on the matter. Id. at ¶ 17. Tarrats
argues that, because the discovery in that case centered on
determining the name of a man the accuser claimed had raped her
in a separate prior incident, we are now compelled to conclude
that rule 412 does not exclude the evidence he seeks to admit
here. We disagree.
¶28 As explained above, we agree that while prior false
rape claims are not excluded under rule 412, prior truthful rape
claims are inadmissible. The defendant fails to note that our

No. 20030905 8
holding in Martin I was merely that the defendant “was entitled
to discover the information he sought, which carried ‘strong’
impeachment value and could significantly impact ‘the central
issue of the case–-[whom] to believe about the circumstances of
the sexual contact.’” State v. Martin, 2002 UT 34, ¶ 24, 44 P.3d
805 (Martin II) (quoting Martin I, 1999 UT 72 at ¶ 16). We did
not say that he was automatically entitled to introduce any
evidence he found. Instead, we simply said that he was entitled
to discover the information and, “[i]f [he found] any new
admissible evidence, the trial court must then . . . determine if
Martin is due a new trial.” Martin I, 1999 UT 72 at ¶ 17
(emphasis added). We remanded the case to give Martin an
opportunity to perform adequate discovery of this issue.
¶29 Though unable to identify the prior accused, Martin did
discover that the alleged rape arose out of an incident in which
the accuser had accepted a ride from a stranger. Martin II, 2002
UT 34 at ¶ 35. He argued on remand to the trial court that he
should be permitted to introduce evidence that she accepted a
ride from a stranger in the past in order to impeach her
testimony that she was not the type of person to get in the cars
of men she did not know. Id. at ¶ 26. The trial court denied
his motion, finding that the evidence, among other problems, bore
too many sexual overtones because the accuser had alleged that
this incident had led to her being raped. Id. at ¶ 27. Martin
appealed once again to this court, and it was from this posture
that we heard Martin’s case a second time.
¶30 On this appeal, we disagreed with the trial court and
ruled that Martin should be able to introduce the evidence of his
accuser accepting a ride so long as no mention was made of the
rape allegation. Id. at ¶ 43. We there acknowledged that “rule
412 should be construed broadly in order to fully effectuate the
policy considerations underlying its prohibitions.” Id. at ¶ 42.
We further characterized any reference to the first alleged rape
as “inadmissible information” when we explained that the trial
court could “direct[] the scope of questioning . . . to ensure
that evidence prohibited by rule 412 is not considered by the
jury.” Id.
¶31 Specifically because evidence of the prior alleged rape
would not be introduced, the evidence about accepting a ride did
not violate “rule 412's prohibition on sexual proclivity
evidence” and was admissible. Id. at ¶ 43. Thus, our previous
case law on the subject conforms to our holding today that
allegations of prior false rape claims are inadmissible under
rule 412 unless their falsity can be demonstrated to some

9 No. 20030905
standard of proof. We now hold that the requisite standard is
proof by a preponderance of the evidence.
¶32 We agree with the trial court’s determination that
Tarrats failed to satisfy the necessary threshold showing in this
case. The support for his allegation that the accuser had
previously fabricated a rape charge consisted of the testimony of
a single individual who provided testimony that was inconsistent
with her prior behavior and with the sworn testimony of several
other people, including the defense’s own private investigator.
¶33 This witness, Ms. Gardner, reported the supposed
recantation to the police nearly a year after the investigation
against Tarrats had begun, but only within weeks of discovering
that the accuser had kissed her boyfriend. Further, she also
testified that she never believed Tarrats had raped her friend,
yet she had participated with the police in the investigation and
gathering of evidence against the defendant for the ten months
leading up to her sudden change of attitude.
¶34 In contrast, three other people, some of whom dislike
or are otherwise not friends with the accuser, testified that the
accuser had never recanted her claim that she had been raped on a
previous occasion. With only the controverted testimony of Ms.
Gardner to substantiate Tarrats’ claim that the accuser made a
false accusation of rape against another individual, the trial
court did not abuse its discretion in determining that Tarrats
failed to show by a preponderance of the evidence that the
accusation was false and, therefore, admissible under rule 412.
¶35 Tarrats claims that excluding this impeachment evidence
amounts to a violation of his right to confront witnesses,
guaranteed by the Sixth and Fourteenth Amendments to the United
States Constitution. The United States Supreme Court, however,
has made clear, in the face of an objection to an exclusion
determination made under Michigan’s rape shield law, that “‘[t]he
right to present relevant testimony is not without limitation.
That right may, in appropriate cases, bow to accommodate other
legitimate interests in the criminal trial process.’” Michigan
v. Lucas, 500 U.S. 145, 149 (1991) (quoting Rock v. Arkansas, 483
U.S. 44, 55 (1987) (further citation omitted)).
¶36 Judges “‘retain wide latitude’ to limit reasonably a
criminal defendant’s right to cross-examine a witness ‘based on
concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant.’” Id. (quoting
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). Thus, the

No. 20030905 10
defendant’s right to confront witnesses is not absolute. Id.
Many evidentiary rules necessarily limit to some degree a
defendant’s ability to question witnesses and introduce evidence.
So long as impingements upon a defendant’s constitutional rights
pursuant to these evidentiary rules are not “arbitrary or
disproportionate to the purposes they are designed to serve,”
they are constitutional. Stephens v. Miller, 13 F.3d 998, 1002
(7th Cir. 1994).
¶37 We feel that rule 412 promulgates a legitimate interest
in the trial process, that the threshold showing of falsity
serves that interest, and that the trial court exercised
reasonable discretion in determining that the evidence failed the
rule 412 test for admissibility.
¶38 Further, even had the defendant succeeded in showing by
a preponderance of the evidence that the accuser had falsely
accused another of a sexual assault in the past, we feel that the
trial court did not abuse its discretion in determining the
evidence to also be inadmissible under rule 403 because the prior
claim was so attenuated factually from the present case that its
probative value is low and overwhelmed by the potential
prejudicial effect.
II. INADMISSIBILITY OF THE EVIDENCE UNDER RULE 403
¶39 We have held that “‘[w]e will not overturn the trial
court’s ruling [on the application of Rule 403] unless the abuse
of discretion is so severe that it results in a likelihood of
injustice.’” State v. Branch, 743 P.2d 1187, 1189 (Utah 1987)
(alteration in original) (quoting State v. Knowles, 709 P.2d 311,
312 (Utah 1985) (further citation omitted)).
¶40 We decline to overturn the trial court’s ruling on this
matter because, even if Utah’s rape shield law did not bar
Tarrats from using the proffered evidence, the court did not
abuse its discretion in holding that rule 403 does. This rule
provides:
Although relevant, evidence may be excluded
if its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the
jury, or by considerations of undue delay,
waste of time, or needless presentation of
cumulative evidence.
Utah R. Evid. 403.

11 No. 20030905
¶41 We have held that impeaching a witness on “specific
instances of past conduct that is probative of the witness’s
character for truthfulness or untruthfulness, and therefore
admissible under rule 608(b), may still be limited or prohibited
by the trial court in its sound discretion under rule 403.”
State v. Gomez, 2002 UT 120, ¶ 33, 63 P.3d 72.
¶42 Here, any evidence of the previous allegation, even if
proven to be false, would be inadmissible because its probative
value would be substantially outweighed by its prejudicial
effect. While we agree that prior false allegations of rape may
in many instances be highly probative of truth, see, e.g., Martin
I, 1999 UT 72 at ¶ 16, such determinations must be made on a case
by case basis according to the facts presented. Here, the prior
allegation, even if false, would be of little probative value
because the facts surrounding the prior allegation are so
attenuated from the facts of the case before us today.
¶43 First, the accuser never reported to the police or any
other authorities her allegation that she was raped by an
acquaintance at a New Year’s Eve party. Confiding in one’s
friends that one has been the victim of a sexual assault is a
substantially different level of accusation than filing a formal
complaint with the police department and participating in a
criminal investigation. The seriousness of the allegation
against Tarrats far exceeds the seriousness of her allegation
against the acquaintance and renders an analogy between the two
allegations extremely weak.
¶44 Second, the accuser had been drinking heavily on the
night of the New Year’s encounter, and thus felt less than
completely sure about what had happened. On the night of her
encounter with Tarrats, however, no alcohol was involved and both
she and the defendant agree that she verbalized her resistance to
his sexual advances.
¶45 Finally, while Tarrats may argue that the accuser had a
motive to falsely tell her friends that she had been raped at the
New Year’s party in order to preserve her relationship with her
then-boyfriend, he cannot and does not argue that she has such
motive to fabricate a false claim against him.
¶46 Rather than providing real probative value, any
evidence tending to prove that the accuser had invented the
previous rape claim would instead prejudice the truth-finding
mission of the jury by making unpermitted references to the
accuser’s sexual behavior or character. It would be inviting the
jury to draw the inference that if the accuser made a false
allegation in the past, her allegation in this case would

No. 20030905 12
likewise be false. Such an inference is clearly improper under
our rules of evidence. See Utah R. Evid. 404(b). The attenuated
factual circumstances surrounding the two allegations only
deepens the problem with using the first allegation to make
inferences about the second. Further, such evidence would
confuse the issues and unnecessarily create a trial within a
trial, which the rules of evidence specifically seek to avoid.
See Utah R. Evid. 403.
¶47 We conclude that the trial court acted within its
discretion in determining that it would be a violation of rule
403 to admit evidence of the prior allegation. Its probative
value is low, since the evidence that she recanted is weak and
the facts of the two incidents are so attenuated, and its
prejudicial effect is substantial, since the allegation is likely
to be confusing to the jury and may lead them to draw improper
inferences about the accuser’s sexual conduct or character that
would unfairly impact their assessment of the issues.
CONCLUSION
¶48 The trial court exercised reasonable discretion in
ruling that any evidence of the prior allegedly false rape
accusation is inadmissible under Utah Rules of Evidence 412 and
403. First, the trial court did not abuse its discretion in
requiring the defendant to prove by a preponderance of the
evidence that the accuser made a prior false allegation, nor did
it abuse its discretion in finding that the defendant failed to
satisfy that threshold standard of rule 412. Further, the trial
court reasonably concluded that rule 403 excludes the evidence
because its probative value was outweighed by its prejudicial
effect. The trial court’s evidentiary ruling is affirmed, and we
remand for further proceedings consistent with this opinion.
---
¶49 Chief Justice Durham, Justice Durrant, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Wilkins’
opinion.

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