State v. Shay

2026 UT App 83 THE UTAH COURT OF APPEALS STATE OF UTAH, Appellee, v. RAYMOND SHAY, Appellant. Opinion No. 20240257-CA Filed May 21, 2026 Third District Court, Salt Lake Department The Honorable Elizabeth A. Hruby-Mills No. 181904439 Emily Adams, Freyja Johnson, and Rachel Phillips Ainscough, Attorneys for Appellant Derek E. Brown and Daniel L. Day, Attorneys for Appellee JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGE AMY J. OLIVER concurred. JUDGE RYAN M. HARRIS concurred in part and in the result, with opinion. CHRISTIANSEN FORSTER, Judge: ¶1 Raymond Shay appeals his convictions on seven counts of aggravated sexual abuse of a child and one count of rape. He argues that the trial court abused its discretion in allowing the State to present testimony regarding sexual abuse allegations asserted by a sibling of the victims in this case. We conclude, however, that the trial court did not abuse its discretion in determining both that this evidence had a proper, non-character purpose and that the probative value of the evidence was not substantially outweighed by a risk of unfair prejudice. We further conclude that even were the evidence improperly admitted, the  State v. Shay admission would have been only harmless error. We therefore affirm Shay’s convictions. BACKGROUND 1 ¶2 In the summer of 2010, Shay became romantically involved with a single mother (Mother) and moved in with her and her five children in their house. Among Mother’s children were three daughters: Ashley (age sixteen), Beth (age nine), and Clara (age six or seven). 2 ¶3 The following year, when Ashley was seventeen years old, she alleged that Shay sexually abused her. According to Ashley, the abuse occurred one afternoon when Shay called her into his bedroom and began telling her he was proud of her for certain recent accomplishments and behaviors. Ashley related that Shay “pushed [her] down on the bed,” “reached under [her] shirt,” and then “put his hands down [her] pants” and touched her vagina. ¶4 The next day, Ashley told Mother about the abuse. Although Ashley initially thought Mother believed her allegations, Mother’s subsequent actions and comments suggested otherwise. Mother made Ashley move out of the house that same day, and Mother never took Ashley to the police to report the alleged touching. Mother not only “wouldn’t talk to” Ashley, but Ashley was “no longer welcomed in the home,” and from Ashley’s perspective, “[i]t was basically like [she] never existed.” Ashley did, however, report the touching to the police 1. “We recite the facts in the light most favorable to the jury’s verdict, and we present conflicting evidence as necessary to understand issues raised on appeal.” State v. Black, 2015 UT App 30, ¶ 2, 344 P.3d 644. 2. We use pseudonyms to refer to the three children. 20240257-CA 2 2026 UT App 83  State v. Shay herself, which eventually resulted in Shay pleading no contest to one count of sexual battery. ¶5 In 2013, Mother and the remaining children moved to an apartment, with Beth and Clara sharing a bedroom. Toward the end of the year, Shay again moved in with the family, and Shay and Mother married the following year. During the years at the apartment, Shay would sometimes, while Mother was away at work, watch scary movies with the children in the dark, and when Beth (then twelve years old) would sit by Shay, he “would lay his hand flat on the couch and then would grab [her] butt[ocks].” ¶6 Also during this same period of time, Beth was diagnosed with arthritis and could find relief from her joint pain only by being massaged. Shay would often massage Beth’s legs and hips when Mother was away at work, but he “would also go lower to [her] hips and [her] thighs and get closer to [her] vagina.” “Occasionally” during these massages, Shay touched Beth’s vagina, sometimes over clothing and sometimes under it. Beth “tried pushing his hand away” because she knew “it was wrong,” but Shay “kept pushing his hand even closer.” On one occasion, Mother observed Shay massaging Beth’s legs and noticed “he was trying to get a little closer to [Beth’s] vaginal area,” resulting in Beth looking “like she was uncomfortable.” ¶7 Shay additionally began asking Beth to “sit on his lap.” And when she would do so, he would “move [Beth’s] hips around over his penis” such that she could “feel his erection through his pants.” ¶8 When Beth was thirteen years old and “had started to develop” breasts, she and Shay “would have tickle fights” together when Mother was not home. During these fights, Shay would squeeze her breasts over her clothing. Shay would also sometimes squeeze Beth’s buttocks and breasts when he went into the girls’ bedroom either to say goodnight or to say goodbye in the morning. 20240257-CA 3 2026 UT App 83  State v. Shay ¶9 Beth did not confront Shay about the inappropriate touching or report it to Mother at this time because she “was scared that [Mother] was not going to believe [her] like she did with [Ashley].” ¶10 During the time that the family was living at the apartment, Shay began to also inappropriately touch Clara, now eleven years old. The abuse started one night when Shay came to the girls’ room at bedtime and began rubbing Clara’s back but then moved his hand down to rub her buttocks for “a couple minutes.” A few nights later, this same activity happened a second time, but this time Clara “tr[ied] to turn over so he would stop” and Shay “started touching [her] vagina over [her] clothes.” Then “maybe a week after that” second incident, the same pattern recurred, with Shay rubbing Clara’s back and moving down to her buttocks, but this time he “slipped his hand under [her] clothes” and touched both her buttocks and vagina skin-to-skin. Clara again “tr[ied] to turn over hoping he would stop,” and Shay removed his hand. Clara remembers this kind of touching happening “a couple times a week” while they lived in the apartment. ¶11 For a few months when Clara was twelve years old, the family moved to live with the girls’ grandfather. Shay’s inappropriate touching of Clara at bedtime continued there, with Shay sometimes putting “his hand . . . down [Clara’s] pants” and “rubbing [her] vagina.” Clara did not tell anyone in her family what was happening because she was “scared that no one would believe [her],” similar to what had happened with Ashley. ¶12 Toward the end of 2015, the family then moved to another house. Once they were “settled in” their new house, the pattern of abuse with Clara continued, with Shay touching her under her clothing when he came in at bedtime. But now, Shay additionally “started shoving his fingers inside [Clara’s] vagina.” Clara remembers this happening “[e]very night” that they lived in that house with Shay. 20240257-CA 4 2026 UT App 83  State v. Shay ¶13 One night, when Clara was fourteen years old, the abuse escalated. Clara was in bed trying to fall asleep when Shay entered her bedroom, “took off the blanket,” “put [Clara’s] legs up on his shoulders,” “slid [her] bottoms down,” and put “some of his penis” into her vagina. Shay then heard something, causing him to leave, and Mother “caught him coming out of [Clara’s] room.” Mother asked Shay why he was coming out of the girls’ bedroom, and Shay responded that he had been “just checking on” the girls. ¶14 On a different night when Clara was fourteen years old, Mother, who was growing suspicious of Shay, decided to sleep on the floor in the girls’ room, with the door locked. During the middle of the night, Shay tried to enter the room and “was banging on the door trying to get in.” Mother responded that she was in the room, and Shay eventually left. ¶15 Mother was also uncomfortable when she saw Shay hug Beth and Clara from behind, because she knew that when Shay hugged her that way, he would rub his penis against her, and she was hoping he was not doing the same to the girls. Mother additionally noticed that during this time, Beth and Clara “would try to avoid [Shay] as much as possible.” ¶16 Mother eventually kicked Shay out in 2017. A few months later, Beth and Clara started talking with each other about the abuse Shay had been inflicting on them. At first, they “were kind of iffy” about whether they should tell Mother; they were worried that she would not believe them because she had not believed Ashley. But they thought that “if there [were] two of [them],” things might be different, and they wanted to make sure that Mother would not take Shay back again. Beth and Clara told Mother about the abuse, and Mother promptly reported the abuse to the police and took the girls in to be interviewed regarding the abuse. ¶17 For his actions related to Beth and Clara, Shay was ultimately charged with seven counts of aggravated sexual abuse of a child and one count of rape. Before trial, the State provided 20240257-CA 5 2026 UT App 83  State v. Shay notice that it intended to present evidence of “other bad acts” committed by Shay, namely, the “prior sexual offense towards [Ashley].” The State argued that evidence of this conduct was being offered “not in an attempt to portray [Shay] as an individual with a propensity to assault” but, rather, “to establish that [Shay] had a continuing intent and a common scheme to sexually assault these three siblings with whom he had a step-father relationship,” that he “knew his behavior with [Beth and Clara] was illegal,” and that he had an “intent to commit the crime with which he [was then] charged.” Over Shay’s objection, the trial court granted the State’s motion, concluding that the evidence was “relevant and probative to show intent and a common plan or scheme to engage in sexual contact with three minor siblings” to whom he had been a parental figure. The court also determined that the probative value of the evidence was “not outweighed by any risk of unfair prejudice.” ¶18 The case proceeded to trial, with Shay choosing to represent himself with the assistance of standby counsel. The State presented its case largely through the testimony of Beth, Clara, Mother, and Ashley. Shay presented no opening statement, did not cross-examine Mother or the three girls, and did not call any defense witnesses. ¶19 At several points throughout the proceedings, the jury was reminded of the limited purposes for which it could use the evidence regarding Ashley’s accusations of abuse. First, during the State’s opening statement, the prosecutor previewed Ashley’s expected testimony and said, Now, you’re going to hear from [Ashley] not because the conduct that [Shay] engaged in towards her, the abuse he engaged in towards her isn’t charged in this case, but because it shows that this was not a mistake, that this was not an accident, that this was the plan of [Shay], . . . to repeatedly sexually abuse his stepdaughters. 20240257-CA 6 2026 UT App 83  State v. Shay ¶20 Second, the trial court provided a specific jury instruction addressing the matter: You have heard evidence that the defendant committed an offense against [Ashley] before the acts charged in this case. You may consider this evidence, if at all, for the limited purposes of the defendant’s intent, knowledge, and common scheme. Keep in mind that the defendant is on trial for the crimes charged in this case, and for those crimes only. You may not convict the defendant simply because you believe he may have committed some other act at another time. ¶21 Third, during closing argument, the prosecutor again acknowledged, “[T]he conduct that [Shay] did with [Ashley], that’s not at issue here. Those are not charged counts. Those are specifically to show that this wasn’t an accident and that this was what [Shay’s] plan was. This is how he did it.” ¶22 Finally, Shay’s standby counsel, who gave the majority of Shay’s closing argument, told the jury, You also heard from [Ashley], but . . . none of the charges have anything to do with her. And to be clear about this, you heard from [Ashley] for very specific reasons; to determine whether there was knowledge, intent, or a common scheme in this case. Our law is very clear that we don’t allow evidence for what’s called propensity. We don’t allow evidence of some other act to say, well, because this person did that other act, they probably did this similar act on this occasion. You cannot use what [Ashley] said for that reason. 20240257-CA 7 2026 UT App 83  State v. Shay What it came in for was to show that basically because some of these things could have been sort of incidental, touching, . . . tickle fights that resulted in touching a buttocks or touching a breast or that sort of thing, that this evidence of this other event was intended to show that this wasn’t an accident, if it happened. But you cannot say, well, because something similar happened with [Ashley], that makes . . . what [Beth and Clara] said more likely to be true; that you can’t do. ¶23 The jury ultimately convicted Shay as charged. He thereafter timely appealed. ISSUE AND STANDARD OF REVIEW ¶24 Shay argues that the trial court abused its discretion in allowing the State to present testimony of Ashley’s sexual abuse allegations under rule 404(b) of the Utah Rules of Evidence. “We review a [trial] court’s evidentiary rulings for abuse of discretion. When a [trial] court applies the correct legal standard, its decision to admit or exclude evidence is only an abuse of discretion if it is beyond the limits of reasonability.” State v. Blackwing, 2025 UT 60, ¶ 16, 582 P.3d 829 (quotation simplified). ANALYSIS ¶25 Rule 404(b) of the Utah Rules of Evidence provides that “[e]vidence of a crime, wrong, or other 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.” Utah R. Evid. 404(b)(1). However, the rule also provides that this same evidence “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Id. R. 404(b)(2). “And rule 404(b)’s use of ‘such as’ indicates that the 20240257-CA 8 2026 UT App 83  State v. Shay list of non-character purposes is illustrative and not exclusive.” State v. Green, 2023 UT 10, ¶ 70, 532 P.3d 930 (quotation simplified). Thus, “under rule 404(b), the 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).” Id. ¶ 63 (quotation simplified). See generally Utah R. Evid. 402 (“Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; the Utah Constitution; a statute; or rules applicable in courts of this state.”); id. R. 403 (“The 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.”). 3 ¶26 “The difficulty in applying this simple rule, however, springs from the fact that evidence of prior bad acts often will yield dual inferences—and thus betray both a permissible purpose and an improper one.” State v. Verde, 2012 UT 60, ¶ 16, 296 P.3d 673, abrogated on other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016, and abrogated on other grounds by Green, 2023 UT 10. In circumstances “where the court concludes that the only real effect of the evidence is to suggest likely action in conformity with bad character,” the “avowed proper purpose may be rejected 3. Shay argued below that testimony regarding Ashley’s sexual abuse allegations was not relevant under rule 402. But on appeal, acknowledging that the rules of evidence “establish a very low bar that deems even evidence with the slightest probative value relevant and presumptively admissible,” State v. Richardson, 2013 UT 50, ¶ 24, 308 P.3d 526 (quotation simplified), he chose to not develop a rule 402 argument; instead, he focused his appellate argument on asserting that, even “assuming” relevance, this evidence “was not used for a proper purpose” and “was unfairly prejudicial.” We therefore do not separately address the trial court’s determination as to relevance—a position that the separate opinion also embraces, see infra ¶¶ 37–38. 20240257-CA 9 2026 UT App 83  State v. Shay as a pretext or ruse.” Thornton, 2017 UT 9, ¶ 59 (quotation simplified). “Short of that, however, the court’s job under rule 404(b) is not to balance or weigh competing (proper and improper) inferences. Such weighing comes in under rule 403.” Id. (footnote omitted). Thus, “even if the evidence may sustain both proper and improper inferences under rule 404(b), the court should balance the two against each other under rule 403, excluding the bad acts evidence if its tendency to sustain a proper inference is outweighed by its propensity for an improper inference or for jury confusion about its real purpose.” Verde, 2012 UT 60, ¶ 18; see also Green, 2023 UT 10, ¶ 64 (“In sum, the rules of evidence provide that evidence of prior crimes, uncharged misconduct, or bad acts is admissible if it (1) is relevant to, (2) a proper, non-character purpose, and (3) does not pose a danger for unfair prejudice that substantially outweighs its probative value.” (quotation simplified)). ¶27 Applying these rules to the instant case, we do not see that the trial court abused its discretion in determining that the testimony regarding Ashley’s allegations was relevant to the proper, non-character purpose of showing Shay’s intent, that is, that his touching of Beth and Clara was done with the specific intent to “arouse or gratify [his] sexual desire.” Utah Code § 76-5- 404.1(2)(a)(ii)(B). This court has previously determined that showing this particular intent is a valid, non-character purpose under rule 404(b). ¶28 One example is State v. Bair, 2012 UT App 106, 275 P.3d 1050, wherein the defendant was charged with aggravated sexual abuse of a child after abusing his daughter. See id. ¶¶ 2, 4. Prior to the abuse, the defendant had disclosed that he was “addicted to the touchy/feely-play around part of sex,” and the State sought admission of that statement under rule 404(b), arguing that the defendant’s “admitted addiction demonstrated his intent in touching” his daughter. Id. ¶¶ 15, 19 (quotation simplified). The trial court permitted the evidence to be admitted, and the defendant thereafter appealed that decision, “arguing that the [evidence] ‘amounted to inadmissible propensity evidence in 20240257-CA 10 2026 UT App 83  State v. Shay disguise.’” Id. ¶ 15. This court disagreed, concluding that the defendant’s prior disclosure did “provide evidence of [his] specific intent to arouse or gratify his sexual desires, which is a proper, noncharacter purpose under rule 404(b).” Id. ¶ 20. And we explained that “even if admission of the [evidence] prompted the jury to infer [the defendant] acted in conformity with his addiction, rule 404(b) permits admission of prior acts evidence so long as the sole purpose is not to prove that a defendant acted in conformity with a character trait.” Id. ¶ 19. ¶29 Likewise, here the State’s use of evidence regarding Ashley’s allegations of abuse was not an attempt to prove that Shay acted in accordance with a general bad character but was, instead, an effort to provide evidence of Shay’s specific intent to seek sexual gratification through sexual contact with his minor stepdaughters. The evidence shows that he targeted his minor stepdaughters who lived in his household, exploited his parental role, initiated abuse in private settings, and relied on secrecy and authority—all as a means to gratify his sexual desires. This is a proper, non-character purpose under rule 404(b), and the trial court therefore did not abuse its discretion in so deciding. 4 See 4. The trial court did not view the State’s purported non-character purpose of intent as a pretext or ruse. Both Shay and the separate opinion argue that this was an abuse of the court’s discretion because this case is, like State v. Verde, a case in which “intent is uncontested and readily inferable from other evidence.” Verde, 2012 UT 60, ¶ 26, 296 P.3d 673, abrogated on other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016, and abrogated on other grounds by State v. Green, 2023 UT 10, 532 P.3d 930. For two reasons, we disagree. First, it is not clear that intent was uncontested here. The only record citation Shay provides for his assertion of uncontested intent is to a statement made in closing wherein he explained that he had been in prison for nine months during the time period given for some of the charged offenses and then said, “For that, I think my only defense would be, my argument would be it’s (continued…) 20240257-CA 11 2026 UT App 83  State v. Shay State v. Burke, 2011 UT App 168, ¶ 30, 256 P.3d 1102 (recognizing that evidence of multiple acts “is offered for a proper, noncharacter purpose if it is offered to prove intent,” and concluding that multiple sexual offenses, “when considered together with the circumstances that connect them, show[ed] that [the defendant] possessed that specific sexual intent at the time each offense was committed”). 5 fabricated.” (Emphasis added.) And Shay also made another comment in closing that, while not very clear, could arguably be interpreted as contesting intent: “My argument would be through all from Count 1 to 8. Count 1 as it says, stated intentionally, knowingly, recklessly, where No. 3, I touched my daughter. That part I have not—I go against it too, Your Honor.” (Emphasis added.) Second, the situation in Verde was markedly different than the situation here. There, the defendant not only “offered to stipulate to his intent,” but his “intent [was] inferable from proof that [he] groped [the victim’s] genitalia” because with such groping, “it’s hard to imagine a jury that would conclude that [the defendant] committed the actus reus but with an innocent intent.” Id. ¶ 25. But here, Shay made no concession of intent, and at least some of the alleged touching (i.e. those tied to the massaging and tickle fights) commenced as welcome touching and then allegedly included inappropriate touching—a situation in which there is a possibility that a jury might conclude that the touching happened without the requisite intent. 5. Although the trial court’s decision also found the evidence was relevant to the additional non-character purpose of showing “a common plan or scheme,” the State concedes on appeal that “the approximate two-year gap between Shay’s sexual abuse of [Ashley] and the beginning of the charged crimes likely fails the temporal-proximity requirement necessary to establish a common scheme or plan.” We therefore do not evaluate the applicability of this alternate purpose further. (continued…) 20240257-CA 12 2026 UT App 83  State v. Shay ¶30 As to the required rule 403 balancing, “trial courts have wide discretion in determining relevance, probative value, and prejudice. This means that we will not reverse the trial court’s [rule] 403 ruling unless we find it was beyond the limits of reasonableness.” State v. Beverly, 2018 UT 60, ¶ 56, 435 P.3d 160 (quotation simplified); see also De La Cruz v. Ekstrom, 2024 UT App 18, ¶ 11, 545 P.3d 285 (“Ultimately, as long as the court’s decision was within the broad range of discretion entrusted to trial judges, even if we think the trial judge made the wrong call we will affirm because it was, in its essence, a discretionary call.” (quotation simplified)); Burke, 2011 UT App 168, ¶ 42 (“We must recognize that trial courts are allowed considerable freedom in applying rule 403 to the facts of a case, freedom to make decisions which appellate judges might not make themselves ab initio but will not reverse.” (quotation simplified)). ¶31 And we do not see that the trial court abused its wide discretion here. The evidence regarding Ashley’s allegations carried substantial probative value by corroborating Beth’s and Clara’s testimony that Shay intentionally targeted them for sexual gratification. Although there were, admittedly, differences between the events alleged by Ashley and the events alleged by We do, however, note that, although not a purpose highlighted by the trial court, the evidence of Ashley’s allegations and the fallout therefrom was relevant to the additional non- character purpose of providing context. The evidence regarding Ashley’s allegations explained why Beth and Clara endured abuse for years without telling anyone and explained their fear that they would not be believed—they were afraid that Mother would, like with Ashley, not believe them and that she might react in a similarly unsupportive manner to how she reacted after Ashley’s disclosure. Thus, this was yet another non-character purpose that could have been pursued under rule 404(b). See Thornton, 2017 UT 9, ¶ 57 (allowing other acts evidence that “presented a narrative of relevance to the prosecution’s case,” including by “suggesting why [the victim] may have waited to come forward with accusations against [the defendant]”). 20240257-CA 13 2026 UT App 83  State v. Shay Beth and Clara, the trial court’s assessment was that “[t]here [were] sufficient similarities in conduct between the charged offenses [and] the prior bad acts.” Cf. State v. Green, 2023 UT 10, ¶ 78, 532 P.3d 930 (“[W]e cannot say that the [trial] court abused its broad discretion in concluding that the similarities among the [victims’] accounts reduced the tendency for the jury to decide upon an improper basis and that the danger of unfair prejudice did not substantially outweigh the evidence’s probative value.”). Further, the trial court provided the jury with a limiting instruction, specifically listing the reasons for which the jury could consider the evidence regarding Ashley’s allegations and also clearly stating, “You may not convict the defendant simply because you believe he may have committed some other act at another time.” See id. ¶ 80 (recognizing that issuing a limiting instruction could have “a material impact on the rule 403 balancing” (quotation simplified)). ¶32 Based on all this, the trial court did not exceed its wide discretion in determining that the probative value of the other acts evidence was not substantially outweighed by a danger that the jury would base its decision on an improper propensity inference. See Bair, 2012 UT App 106, ¶ 22 (“Even if some level of unfair prejudice exists, the mere fact that evidence possesses a tendency to suggest a decision upon an improper basis does not require exclusion; evidence may be excluded only if the danger of unfair prejudice substantially outweighs the probative value of the proffered evidence.” (quotation simplified)). Thus, the trial court did not abuse its discretion in allowing the State to present testimony regarding Ashley’s prior allegations of abuse. ¶33 Finally, we also agree with the State’s assertion that even if the trial court abused its discretion in admitting evidence under rule 404(b), any such error was ultimately harmless. “An erroneous decision to admit or exclude evidence cannot result in reversible error unless the error is harmful.” Green, 2023 UT 10, ¶ 101 (quotation simplified). “For an error to require reversal, the 20240257-CA 14 2026 UT App 83  State v. Shay likelihood of a different outcome must be sufficiently high to undermine confidence in the verdict.” Id. (quotation simplified). ¶34 Beth and Clara each provided largely consistent, detailed testimony of abuse spanning several years. Not only was their testimony mutually corroborative, but it was additionally corroborated by Mother’s testimony that Shay seemed to be getting closer to the vaginal area when massaging Beth, that she caught Shay trying to enter the girls’ room in the middle of the night, that she was concerned about the manner in which Shay hugged the girls, and that the girls increasingly tried to avoid being around Shay. Further, this evidence went almost entirely unchallenged; Shay chose to proceed pro se at trial and neither offered an opening statement setting forth a defense nor engaged in any cross-examination of Mother or the three girls. Under these circumstances, we are not convinced that had the trial court excluded all evidence regarding Ashley’s allegations, there is a reasonable likelihood of a different outcome here. For this additional reason, we affirm Shay’s convictions. CONCLUSION ¶35 The trial court did not abuse its discretion in allowing evidence of prior acts under rule 404(b) of the Utah Rules of Evidence. And even were there any error related to this admission, we would determine it to be only harmless error. We therefore affirm. HARRIS, Judge (concurring in part and concurring in the result): ¶36 I join Paragraphs 33 and 34 of the lead opinion, and I concur in the result reached by the majority: that Shay’s convictions should be affirmed. But I reach that conclusion largely by way of very different reasoning than the lead opinion does, and I write separately to explain that reasoning, an 20240257-CA 15 2026 UT App 83  State v. Shay endeavor that requires me to set forth some concerns I have with our supreme court’s decision in State v. Green, 2023 UT 10, 532 P.3d 930. ¶37 The issue in this case is whether the trial court erred by overruling Shay’s objection to Ashley’s testimony that—when she was seventeen, and several years before he sexually abused Beth and Clara—Shay sexually abused her too. This testimony thus constitutes “prior-bad-acts evidence,” the admissibility of which is governed by rule 404(b) of the Utah Rules of Evidence. Under Utah law, “such evidence is admissible if it (1) is relevant to, (2) a proper, non-character purpose, and (3) does not pose a danger for unfair prejudice that substantially outweighs its probative value.” State v. Gallegos, 2020 UT App 162, ¶ 15, 479 P.3d 631 (quotation simplified). The first step is not contested here: Shay at least tacitly acknowledges that Ashley’s testimony is “relevant,” as that term has been defined in our law. See id. ¶ 16 (noting that the relevance inquiry “presents a low bar” (quotation simplified)); see also State v. Murphy, 2019 UT App 64, ¶ 47, 441 P.3d 787 (Harris, J., concurring) (noting that prior-bad-acts evidence is presumptively excluded by our rules “not because it has no appreciable probative value, but because it has too much” (quotation simplified)). ¶38 It is thus the final two steps that are contested here: that is, Shay asserts that there is no proper non-character purpose for admission of Ashley’s testimony and that (in any event) the danger of unfair prejudice substantially outweighs any legitimate probative value Ashley’s testimony might have. On these points, I part ways with the lead opinion. In my view, no proper non- character purpose was articulated to the trial court that would justify admission of Ashley’s testimony in this case. And I also believe, under the circumstances, that the bulk of Ashley’s testimony had extremely low legitimate probative value and that any such value was substantially outweighed by the risk of unfair prejudice, namely, the risk that the jury would draw a forbidden propensity inference. For these reasons, and as further explained below, in my view the trial court exceeded its discretion 20240257-CA 16 2026 UT App 83  State v. Shay by overruling Shay’s objection to the entirety of Ashley’s testimony. ¶39 But I nevertheless agree that Shay’s convictions should be affirmed because, on this record, the trial court’s error was harmless. In a counterfactual trial in which Ashley did not testify, Shay enjoys no reasonable likelihood of a different outcome. On this basis, I join Paragraphs 33 and 34 of, and concur in the result reached by, the lead opinion. I. Non-Character Purpose ¶40 Under our evidentiary rules, “the admissibility of prior misconduct evidence depends on its avowed purpose.” State v. Verde, 2012 UT 60, ¶ 15, 296 P.3d 673, abrogated on other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016, and abrogated on other grounds by State v. Green, 2023 UT 10, 532 P.3d 930. Our rules forbid the introduction of prior-bad-acts evidence “to prove a person’s character in order to show that on a particular occasion the person acted in conformity with the character.” Utah R. Evid. 404(b)(1). “This forbidden line of thinking is sometimes referred to as a ‘propensity inference’—that is, if jurors are told that a person has acted in a certain way on previous occasions, they may conclude that it is in that person’s character to act that way, and may conclude that, due to this propensity, the person was much more likely to have acted in conformity with that propensity on the occasion in question.” Gallegos, 2020 UT App 162, ¶ 13; see also Verde, 2012 UT 60, ¶ 15 (stating that, when prior-bad-acts evidence “is offered to suggest action in conformity with a person’s alleged bad character, it is inadmissible”). ¶41 But while prior-bad-acts evidence is not admissible under rule 404(b) to prove propensity, “that rule allows admission of evidence of such acts for other purposes.” Gallegos, 2020 UT App 162, ¶ 14. Under the rule, prior-bad-acts evidence “may be admissible” to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Utah R. Evid. 404(b)(2). Thus, “when past misconduct 20240257-CA 17 2026 UT App 83  State v. Shay evidence is offered for any other purpose—other than to suggest action in conformity with the bad character suggested by [a defendant’s] prior bad acts—such evidence is admissible so long as it satisfies rules 402 and 403.” Thornton, 2017 UT 9, ¶ 36 (quotation simplified); see also Verde, 2012 UT 60, ¶ 15 (“So long as the evidence is not aimed at suggesting action in conformity with bad character, it is admissible under rule 404(b).”). ¶42 But “evidence of prior bad acts often will yield dual inferences—and thus betray both a permissible purpose and an improper one.” Verde, 2012 UT 60, ¶ 16. And in such cases, it may be difficult for “the court to differentiate the two inferences or to limit the impact of the evidence to the purpose permitted under the rule.” Id. Accordingly, our supreme court has instructed lower courts to look closely at whether the evidence at issue “is genuinely being offered for a proper, non-character purpose, or whether it might actually be aimed at sustaining an improper inference of action in conformity with a person’s bad character.” Id. ¶ 18 (emphasis added). “If such evidence is really aimed at establishing a defendant’s propensity to commit crime, it should be excluded despite a proffered (but unpersuasive) legitimate purpose.” Id. ¶ 17 (quotation simplified). We must therefore examine the purposes proffered by the State (and by the lead opinion) for admission of Ashley’s testimony and consider whether those purposes are genuine. ¶43 When this issue first arose at the trial court level, the State’s initial position was that there were many proper non-character purposes for Ashley’s testimony. Specifically, it asserted that Ashley’s testimony was admissible to show “motive, intent, knowledge, absence of mistake, lack of accident and common scheme.” During briefing and argument in the trial court, the number of potential non-character purposes was whittled down, with the court eventually settling on two, ruling that Ashley’s “testimony [was] relevant and probative to show intent and a common plan or scheme to engage in sexual contact with three minor siblings with [Shay as] the step-father or step-father figure.” (Emphasis added.) 20240257-CA 18 2026 UT App 83  State v. Shay ¶44 In defending against Shay’s appellate arguments, however, the State has further refined its position, abandoning any argument that “common plan or scheme” is a proper non- character purpose in this case. It does, however, defend the trial court’s ruling that intent functions as such in this case. And it also argues, as an alternative ground for affirmance, that rebuttal of Shay’s fabrication defense—Shay argued at trial that Beth and Clara were untruthful or mistaken in accusing him of abuse—is a proper non-character purpose justifying admission of Ashley’s testimony. Then, on its own, the lead opinion suggests a third proposed non-character purpose, one not mentioned by the trial court or argued as such by the State on appeal: that Ashley’s testimony is “relevant to the additional non-character purpose of providing context.” Supra note 5. ¶45 In my view, none of these arguments is persuasive enough, either as a matter of logic or as a matter of interpretation of our rules of evidence, to justify admission of the entirety of Ashley’s testimony. I discuss each in turn. A. Intent ¶46 “Intent” is indeed one of the purposes listed in rule 404(b) as a potentially proper non-character purpose. But to gain admission of prior-bad-acts evidence on the basis of intent, it is not enough for the proponent of the evidence to merely incant the word “intent.” Rather, that party must demonstrate that the evidence is truly being admitted to prove intent and is not being offered merely as cover for a back-door propensity inference. As our supreme court put it, “if proof of intent is merely a ruse, and the real effect of prior misconduct evidence is to suggest a defendant’s action in conformity with alleged bad character, the ruse is insufficient and the evidence should not be admitted.” Verde, 2012 UT 60, ¶ 22. ¶47 In particular, the Verde court repudiated the “not-guilty rule,” under which it was thought that, a