State v. Leber

2009 UT 59
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, No. 20070820
Plaintiff and Respondent,
v.
F I L E D
Kenneth Anthony Leber,
Defendant and Petitioner. September 04, 2009
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Seventh District, Monticello
The Honorable Lyle R. Anderson
No. 061700012
Attorneys: Mark L. Shurtleff, Att’y Gen, Marian Decker, Asst.
Att’y Gen., Salt Lake City, for plaintiff
Troy L. Booher, Katherine Carreau, Briant Platt, Salt
Lake City, for defendant
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On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
INTRODUCTION
¶1 Petitioner Kenneth Leber was convicted by a jury of
second degree felony child abuse pursuant to Utah Code section
76-5-109(2)(a). Leber appealed his conviction and sought a new
trial based in part on a theory that the trial court abused its
discretion by admitting evidence of Leber’s prior bad acts under
rule 404(a) of the Utah Rules of Evidence. The court of appeals
found that the trial court did not abuse its discretion and
therefore upheld the jury verdict.
¶2 We initially granted certiorari to determine whether
the court of appeals erred in declining to apply rules 402 and
403 before admitting evidence of Leber’s violent character under
rule 404(a). However, as a threshold issue, we find that the
trial court erred in admitting evidence of Leber’s prior bad acts
under rule 404(a) and rule 405, and therefore remand to the court

No. 20070820 2
of appeals to determine whether the trial court’s error would
have required reversal on direct appeal.
FACTUAL BACKGROUND
¶3 On January 28, 2006, Kenneth Leber and his intoxicated
fifteen-year-old son, M.L., had a disagreement over the volume of
M.L.’s electric guitar that ultimately resulted in a physical
altercation. Police later found M.L. at a grocery store near
Leber’s mobile home with a bloody mouth, swollen eye, and marks
on his neck. At Leber’s mobile home, police discovered a mirror
broken in two places and blood in the hallway and bathroom sink.
Leber admitted to the altercation, but he told the police that
his son had been the aggressor and that he was merely defending
himself.
PROCEDURAL HISTORY
¶4 Leber was charged with second degree felony child
abuse. See Utah Code Ann. § 76-5-109(2)(a) (Supp. 2006). Prior
to trial, the district court granted Leber’s motion to exclude
evidence of his prior bad acts. However, during trial, the court
ruled that Leber opened the door to his character trait for
violence under rule 404(a) of the Utah Rules of Evidence by
attempting to demonstrate M.L.’s violent character.
Specifically, during opening statements, Leber’s counsel stated,
You’re gonna hear that this is a teenage
child that Mr. Leber has had trouble with, in
the past. He was acting up that day. It
was, in fact, the child that attacked Mr.
Leber.
Later, Leber’s counsel questioned M.L. about a fight between M.L.
and his mother’s boyfriend. Finally, Leber indicated to the
trial court that he intended to “show that [M.L.] has been
obstreperous towards his dad . . . and that he took actions
against his dad. That [M.L.] had the type of nature that he’s
done things against his dad in the past.”
¶5 Finding that Leber had opened the door by offering
evidence of the victim’s violent character, the trial court
allowed the State to proffer evidence of Leber’s violent
character in the form of reputation and opinion evidence as well
as through evidence of specific instances of past violence.
Indeed, the trial court instructed the State that it could
question Leber on cross-examination about his prior bad acts.
The trial court’s ruling resulted in the admission of evidence of
(1) Leber’s 1996 conviction for child abuse, (2) a 2003 assault

3 No. 20070820
committed by Leber in Alaska, (3) a 2001 incident of domestic
violence against Leber’s ex-wife, (4) evidence that Leber had
engaged in domestic violence “too many” times to count,
(5) evidence that Leber had abused his children “several” times,
and (6) the opinion of Leber’s ex-wife that Leber is violent with
children.
¶6 The jury convicted Leber, and he was sentenced to one
to fifteen years in the Utah State Prison. After trial, Leber
acquired new counsel and appealed his conviction. Leber’s
appellate counsel argued that the trial court abused its
discretion by admitting evidence of Leber’s prior bad acts under
rules 404(a) and 405 of the Utah Rules of Evidence without first
complying with the requirements of rule 404(b).
¶7 The court of appeals affirmed the evidentiary rulings
of the trial court. State v. Leber, 2007 UT App 273, ¶¶ 6-15,
167 P.3d 1091. Leber again obtained new counsel and filed a
petition for certiorari, which we granted. We have jurisdiction
in this case pursuant to Utah Code section 78A-3-102(3)(a)
(2008).
STANDARD OF REVIEW
¶8 On certiorari we review the court of appeals’ decision
for correctness with no deference to its legal conclusions. See
State v. Worwood, 2007 UT 47, ¶ 11, 164 P.3d 397; Thomas v. Color
Country Mgmt., 2004 UT 12, ¶ 9, 84 P.3d 1201.
ANALYSIS
I. SCOPE OF CERTIORARI
¶9 We granted certiorari to determine “[w]hether the court
of appeals erred in declining to apply rules 402 and 403 of the
Utah Rules of Evidence in connection with its consideration of
admissibility of evidence under rule 404(a).” In addition to
this issue, Leber urges us to consider (1) whether the trial
court erred in its initial determination that Leber’s character
was at issue under rule 404(a), and (2) whether the trial court
erred by allowing the State to cross-examine Leber regarding
prior bad acts under rules 404(a) and 405. The State argues that
these additional issues fall outside the scope of our order
granting certiorari and that we should therefore decline to
address them. We disagree.
¶10 In determining the scope of an order granting
certiorari we are guided by rule 49(a)(4) of the Utah Rules of
Appellate Procedure, which states that “[o]nly the questions set

1 Further, “[w]e note that the scope of our grant of
certiorari . . . does not preclude us from treating dispositive
issues that become apparent when the advocacy process is
complete.” Massey v. Griffiths, 2007 UT 10, ¶ 9 n.1, 152 P.3d
312.
2 The court of appeals’ opinion states that the rule 404(a)
and rule 405 issues were not properly before it. See State v.
Leber, 2007 UT App 273, ¶¶ 6, 12, 167 P.3d 1091. We disagree.
Whether the prior bad acts evidence was properly admitted by the
trial court in the first instance under rules 404(a) and 405 is a
threshold question that needed to be addressed before the court
assessed whether rules 402 and 403 must be applied to evidence
admitted under rule 404(a). Further, Leber’s opening and reply
briefs before the court of appeals, while not paragons of
clarity, essentially argue that the trial court erred by relying
on rules 404(a) and 405 to admit evidence of Leber’s prior bad
acts, which, Leber argues, could only be admitted under rule
404(b). For example, in his reply brief to the court of appeals,
Leber specifically argued that “[t]he trial court erred because
prior bad acts evidence can obviously only be admitted under rule
404(b) and not under rule 404(a).” (Emphasis added.)
No. 20070820 4
forth in the petition or fairly included therein will be
considered by the Supreme Court.” Utah R. App. P. 49(a)(4)
(emphasis added). Questions presented for review within the
petition for certiorari “will be deemed to comprise every
subsidiary question fairly included therein.” Id. Furthermore,
“this rule should be construed broadly to avoid the rigid
exclusion of reviewable issues, however peripheral.” Sevy v.
Sec. Title Co., 902 P.2d 629, 637 (Utah 1995).
¶11 In this case, the certiorari question regarding whether
the court of appeals erred by failing to consider the
applicability of rules 402 and 403 in conjunction with evidence
of Leber’s violent character and prior bad acts that were
admitted under rule 404(a) subsumes a threshold question. That
question is whether the evidence of Leber’s violent character and
prior bad acts were properly admitted in the first instance under
rules 404(a) and 405. Indeed, the primary reason this case is
before us is because the trial court admitted evidence of Leber’s
prior bad acts under rules 404(a) and 405, instead of under rule
404(b), and the court of appeals erred when it failed to address
these dispositive issues1 that were properly before it.2
Construing rule 49(a)(4) broadly, we hold that the admissibility
of Leber’s violent character and prior bad acts under rules
404(a) and 405 is a subsidiary question fairly included within

5 No. 20070820
the question on which we granted certiorari and is therefore
properly before us.
II. EVIDENCE OF LEBER’S PRIOR BAD ACTS WERE NOT ADMISSIBLE UNDER
RULES 404(a) AND 405
¶12 The trial court abused its discretion when it ruled
that Leber opened the door to evidence of his violent character
under rule 404(a) and subsequently allowed the State to offer
evidence of Leber’s prior bad acts to prove Leber’s violent
character. Appellate courts review a trial court’s decision to
admit character evidence and prior bad acts under an abuse of
discretion standard. See State v. DeCorso, 1999 UT 57, ¶ 18, 993
P.2d 837.
¶13 Rule 404(a) of the Utah Rules of Evidence acts as a
general bar to “[e]vidence of a person’s character . . . for the
purpose of proving action in conformity therewith on a particular
occasion . . . .” Utah R. Evid. 404(a). The exceptions to this
general rule allow an accused to offer evidence of a “pertinent
trait of character” either of himself or of an alleged victim.
Utah R. Evid. 404(a)(1)-(2); see also Perrin v. Anderson, 784
F.2d 1040, 1044 (10th Cir. 1986). However, when an accused
offers such evidence, the prosecution may “rebut the same” or
offer “evidence of the same trait of character of the accused.”
Utah R. Evid. 404(a)(1)-(2); see also Perrin, 784 F.2d at 1044.
Once character evidence is deemed admissible under rule 404(a),
the methods of proving character are limited by rule 405. Rule
405(a) mandates that proof of character “be made by testimony as
to reputation or . . . in the form of an opinion,” and allows
witnesses providing such testimony to be cross-examined about
“relevant specific instances of conduct.” Utah R. Evid. 405(a).
On the other hand, rule 405(b) allows for proof of character
through the use of “[s]pecific instances of conduct” only where
character is an “essential element of a charge, claim, or
defense.” Utah R. Evid. 405(b). Having laid out this brief
introduction, we now consider whether Leber opened the door to
evidence of his character for violence under rule 404(a), and if
so, whether it was appropriate to admit evidence of Leber’s prior
bad acts under rule 405.
A. The Trial Court Abused Its Discretion in Ruling That Leber
Opened the Door to His Violent Character Under Rule 404(a)
¶14 Leber argues that the trial court erred in ruling that
he opened the door to evidence of his violent character under
rule 404(a). Rule 404(a) generally bars character propensity
evidence of the accused, victim, or a witness. Utah R. Evid.
404(a); see also State v. Vargas, 2001 UT 5, ¶¶ 30-31, 20 P.3d

3 Relying on Mangrum & Benson’s treatise on evidence and a
Tenth Circuit case, the court of appeals stated that “a self-
defense claim generally does not put character at issue,” under
rule 404(a). State v. Leber, 2007 UT App 273, ¶ 12 (citing R.
Collin Mangrum & Dee Benson, Mangrum & Benson on Utah Evidence
176 (2006); United States v. Talamante, 981 F.2d 1153, 1156 (10th
Cir. 1992)). The court of appeals’ reliance on Mangrum &
Benson’s treatise and Talamante were misplaced. The relied upon
portion of the treatise and the analysis in Talamante address
character at issue under rule 405(b), not the admissibility of
character evidence under rule 404(a). This distinction is
important. Rule 405(b) allows character to be proven through
specific instances of conduct if character is an “essential
element of a charge, claim, or defense.” Mangrum & Benson’s
treatise accurately indicates that in a criminal case
“[c]haracter is seldom an element of a claim or defense” and
“self defense does not place the character at issue” under rule
405(b). R. Collin Mangrum & Dee Benson, Mangrum & Benson on Utah
Evidence 190 (2009). But the same is not true under rule 404(a)
as discussed in the body of this opinion.
No. 20070820 6
271. However, when an accused offers “[e]vidence of a pertinent
trait of character of the alleged victim of the crime,” the
prosecution may offer “evidence of the same trait of character of
the accused.” Utah R. Evid. 404(a)(1)-(2).
¶15 At trial, Leber argued that M.L. was the first
aggressor and that he was merely acting in self-defense. Whether
a claim of self-defense opens the door to an accused’s violent
character under rule 404(a) hinges on the evidence used to
demonstrate that the victim was the first aggressor.3 If the
accused offers evidence to “prove that the alleged victim was a
hostile, aggressive person who might have initiated the fight,”
or in other words that he had a propensity to be violent, then
defendant opens the door to his own violent character under rule
404(a) and “the prosecutor may offer rebuttal.” Edward L.
Kimball & Ronald N. Boyce, Utah Evidence Law 4-105 (2004); see
also Perrin, 784 F.2d at 1044. Further, actual “evidence” of a
victim’s violent character must be “offered by the accused and
admitted” before a court may rule that the accused has opened the
door to evidence of his own propensity for violence. Utah R.
Evid. 404(a)(1) (emphases added).
¶16 In ruling that Leber had opened the door to evidence of
his own violent character under rule 404(a), the trial court
relied on the following references to M.L.’s propensity for
violence: First, during opening statements, Leber’s counsel
remarked:

7 No. 20070820
You’re gonna hear that this is a teenage
child that Mr. Leber has had trouble with, in
the past. He was acting up that day. It
was, in fact, the child that attacked Mr.
Leber.
Under a plain reading of rule 404(a), these statements do not
constitute “evidence” and cannot open the door to Leber’s violent
character. Accord Payne v. State, 854 N.E.2d 7, 18 (Ind. Ct.
App. 2006) (“[A] mere remark in [defendant’s] opening statement
. . . , without more, is insufficient for the State to introduce
character evidence to the contrary as there is not evidence yet
‘to rebut.’”); State v. Faison, 411 S.E.2d 143, 147-48 (N.C.
1991) (finding error in allowing evidence of victim’s
peacefulness during the prosecution’s case in chief because
defendant could not yet have “introduced evidence of the victim’s
violent character” as “opening statements by attorneys are not
evidence”); State v. McKissack, No. 01C01-9804-CC-00190, 1999
Tenn. Crim. App. LEXIS 149, at *19 (Tenn. Crim. App. Feb. 19,
1999) (“[B]ecause opening statements by counsel are not evidence,
such statements will not alone ‘open the door’ for the
prosecution to introduce evidence of other crimes.”); State v.
Richards, 438 S.E.2d 331, 335-36 (W. Va. 1993) (recognizing that
opening statements have no evidentiary value and do not justify
404 rebuttal evidence).
¶17 Next, the trial court considered the following
questions that Leber’s counsel propounded to the victim:
[Mr. Leber’s counsel:] [Y]ou left your
mother’s custody because you got into a fight
with her boyfriend; is that correct?
[M.L.:] Yeah.
[Mr. Leber’s counsel:] Was that a physical
fight? Or was that just a disagreement?
[Prosecution]: Your Honor, may we approach?
[The Court]: Yeah. I think you already
opened the door, Mr. Halls, but –
(Discussion at sidebar.)
[Mr. Leber’s counsel]: Was -- it was a
disagreement to the extent that you were no
longer comfortable living at your mother’s
house?

4 The federal advisory committee’s notes to rule 405 of the
Federal Rules of Evidence state;
[O]n cross-examination inquiry is allowable
(continued...)
No. 20070820 8
[M.L.]: Yes.
After this exchange, the State argued that Leber had opened the
door to his own violent character under 404(a). Leber’s counsel
objected, but also noted that he intended “to show that [M.L.]
has been obstreperous towards his dad and that he took actions
against his dad. That [M.L.] had the type of nature that he’s
done things against his dad in the past.” Thereafter the trial
court ruled that Leber had opened the door to his violent
character under rule 404(a).
¶18 Leber’s counsel’s argument to the trial court, while
expressive of an intent to demonstrate M.L.’s propensity for
violence, is a non-evidentiary statement that cannot open the
door to Leber’s violent character under rule 404(a)(1). Indeed,
the narrow line of questioning regarding the acrimony between
M.L. and his mother’s boyfriend is the only evidence of M.L.’s
character that was before the trial court at the time it made its
404(a) ruling. On its face, this evidence merely confirms that
M.L. got into a fight with his mother’s boyfriend. It does not,
however, reveal anything about the nature of the fight.
¶19 Since no evidence of M.L.’s involvement in a violent
confrontation was ever offered and admitted, Leber did not inject
propensity evidence into the record. The trial court therefore
abused its discretion when it found that Leber had opened the
door to evidence of his violent character under rule 404(a). We
next turn to the rule 405 issue.
B. The Trial Court Abused Its Discretion By Allowing the State
to Cross-Examine Leber Regarding Specific Instances of Conduct to
Prove His Violent Character Under Rule 405
¶20 The admission of character evidence under rule 404(a)
is circumscribed by rule 405, which dictates the available
methods of proving character. Rule 405(a) provides that “[i]n
all cases in which evidence of character or a trait of character
of a person is admissible, proof may be made by testimony as to
reputation or by testimony in the form of an opinion.” Utah R.
Evid. 405(a) (emphases added). Reputation and opinion witnesses
may only be asked about specific instances of conduct on cross-
examination for the purpose of challenging the credibility of the
reputation or opinion testimony.4 Id. When an accused has

4 (...continued)
as to whether the reputation witness has
heard of particular instances of conduct
pertinent to the trait in question. The
theory is that, since the reputation
witnesses relates what he has heard, the
inquiry tends to shed light on the accuracy
of his hearing and reporting. Accordingly,
the opinion witness would be asked whether he
knew, as well as whether he had heard.
Fed. R. Evid. 405 advisory committee’s notes (emphases added)
(citation omitted).
5 We note that rule 405(a) does not always preclude an
accused from being cross-examined as to specific instances of
conduct. Specifically, if an accused offers evidence of his own
“pertinent trait of character,” under rule 404(a)(1), then the
prosecution may cross-examine him and inquire about specific
instances of conduct to discredit his own reputation testimony.
This usually occurs when an accused feels compelled to testify
about his or her pertinent trait of good character, thus allowing
the prosecution to challenge the credibility of his or her
testimony through specific instances of conduct on cross-
examination.
9 No. 20070820
opened the door to his own character by offering evidence of the
character of an alleged victim under rule 404(a)(1)-(2), rule
405(a) does not provide an avenue for the prosecution to question
the accused on cross-examination about specific instances of
conduct to prove character.5
¶21 In this case, the trial court specifically instructed
the State that it could cross-examine Mr. Leber as to his prior
bad acts in order to prove Mr. Leber’s violent character. This
resulted in the admission of (1) Leber’s 1996 conviction for
child abuse, (2) a 2003 assault committed by Leber in Alaska, and
(3) a 2001 incident of domestic violence against Leber’s ex-wife.
Additionally, the trial court allowed the State to ask reputation
and opinion witnesses about specific instances of conduct on
direct examination resulting in the admission of (1) evidence
that Mr. Leber had engaged in domestic violence “too many” times
to count, and (2) evidence that Mr. Leber had abused his children
“several” times.
¶22 The trial court’s erroneous interpretation of rule
405(a) was a clear abuse of its discretion, and the court of
appeals erred in holding that “the trial court did not exceed its
allotted discretion in admitting evidence of [Leber’s] prior bad

6 While our resolution of this case does not turn on the
applicability of rules 402 and 403 of the Utah Rules of Evidence,
we nevertheless wish to clarify that both of these rules may act
to bar irrelevant or unfairly prejudicial evidence otherwise
admissible under rule 404(a). See State v. Miller, 709 P.2d 350,
353 (Utah 1985) (recognizing the applicability of rules 402 and
403 to evidence admitted under rule 404(a)). But we can find no
persuasive authority for the proposition that the admission of
evidence under rule 404(a) obligates a trial court to analyze
such evidence under the parameters of rules 402 and 403 absent an
objection by one of the parties.
7 Although the State proffered a general harmless error
analysis during oral argument, the harmless error issue was not
thoroughly briefed. For example, the parties did not brief the
question of how the evidence presented at trial satisfies each of
the elements of second degree felony child abuse of which Leber
(continued...)
No. 20070820 10
acts.” State v. Leber, 2007 UT App 273, ¶ 15, 167 P.3d 1091.
Leber was not a reputation or opinion witness, he did not provide
testimony as to his own violent character, and rule 405(a) does
not provide a justification for allowing him to be cross-examined
as to his prior bad acts to prove action in conformity therewith.
Furthermore, reputation and opinion witnesses may not be asked
about specific instances of conduct on direct examination under
rule 405(a).
¶23 Additionally, the trial court does not appear to have
placed any reliance on rule 405(b), nor would that rule be
applicable in this case. Rule 405(b) provides that “[i]n cases
in which character or a trait of character of a person is [an]
essential element of a charge, claim, or defense, proof may also
be made of specific instances of that person’s conduct.”
However, 405(b) seldom applies in criminal cases, and “self
defense does not place . . . character at issue.” R. Collin
Mangrum & Dee Benson, Mangrum & Benson on Utah Evidence 190
(2009).
¶24 Because evidence of Leber’s prior bad acts was
erroneously admitted in the first instance, we need not reach the
question of whether rules 402 and 403 apply whenever evidence is
admitted under rule 404(a).6 Further, having found that rules
404(a) and 405 do not provide a basis for admitting evidence of
Leber’s prior bad acts, we remand to the court of appeals for a
determination of whether the trial court’s evidentiary error
would have required a reversal of Leber’s conviction on direct
appeal.7

7 (...continued)
was convicted. We accordingly conclude that the question of
whether the trial court’s error required reversal on direct
appeal merits additional briefing on remand before the court of
appeals.
11 No. 20070820
CONCLUSION
¶25 Whether evidence of Leber’s prior bad acts was
admissible in the first instance under rules 404(a) and 405 is a
threshold question that must be addressed before determining
whether the same evidence should have been excluded by rules 402
and 403. The court of appeals erroneously failed to address this
threshold issue. The trial court erred in allowing the State to
offer evidence of Leber’s prior bad acts under rules 404(a) and
405. We therefore remand to the court of appeals for a
determination of whether the trial court’s error in this regard
would have required reversal of Leber’s conviction on direct
appeal.
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¶26 Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Nehring concur in Justice Parrish’s
opinion.