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The Utah Supreme Court has ruled a Salt Lake City man who pleaded no contest to two of four rape charges can withdraw his pleas and pursue a challenge to the admissibility of some of the evidence in his case.
The 5-0 opinion giving John Marcus Lowther another chance to fight the charges against him provides clarification to help judges determine which testimony is admissible under the "doctrine of chances."
The doctrine of chances also has been raised in the case of former Utah State University football star Torrey Green, who is charged with 11 felonies in connection with the alleged sexual assaults of seven women while he was a student at the Logan school.
Lowther, who was accused of sexually assaulting four young women during a 10-month period in 2009 and 2010, was to be tried separately for each alleged crime. He entered a plea agreement after 3rd District Judge Randall Skanchy granted a prosecution motion to allow the other three alleged victims to testify at the first scheduled trial.
Under the plea deal, two of the rape charges were dropped and Lowther — who reserved the right to challenge the admission of the other women's testimony — was sentenced in June 2013 to two consecutive prison terms of five years to life. At sentencing, no-contest pleas are treated the same as guilty pleas.
Now 28, Lowther has been incarcerated since his arrest Feb. 2, 2011. His first chance to ask for parole will be at a February 2021 hearing.
His defense attorney, Edward Stone, has said Lowther will withdraw his no-contest pleas and enter pleas of not guilty to all charges against him.
Prosecutors allege the Salt Lake City man raped four women under similar circumstances: They had attended social gatherings where they consumed alcohol; they went to sleep either drunk or tipsy; and they awakened to find the 21-year-old Lowther assaulting them.
Court documents listed the alleged victims and the dates of the crimes as a 17-year-old on Dec. 1, 2009; an 18-year-old on Feb. 14, 2010; a 20-year-old on July 19, 2010; and a 20-year-old on Sept. 23, 2010.
The prosecution decided to try the case involving the Sept. 23, 2010, alleged assault first and sought to introduce testimony about the other alleged rapes.
Prosecutors argued the testimony of the other three women was admissible under the doctrine of chances, described as a "theory of logical relevance" that "rests on the objective improbability of the same rare misfortune befalling one individual over and over," such as being falsely accused of the same type of crime multiple times.
In a 2012 decision, the Utah Supreme Court said evidence is admissible under the doctrine only if it meets the requirements of materiality; similarity; independence, meaning each accusation is independent of the others; and frequency.
Even if those requirements are met, the witnesses' testimony still can be excluded under court rules if its probative value is substantially outweighed by a danger of "unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time or needlessly presenting cumulative evidence."
In the Torrey Green case, seven separate trials are planned and Cache County prosecutors want to present testimony from all of the alleged victims at each trial to show it is unlikely that the 23-year-old Green was innocently and repeatedly involved in similar situations. A motion to allow the testimony, which cites the doctrine of chances, is pending.
Prosecutor Spencer Walsh does not believe the Lowther decision will affect the motion.
"We feel confident that we have a compelling argument to admit the evidence," Walsh said.
In Lowther's case, prosecutors said the women's testimony was "necessary to show intent to engage in sexual activity without the victims' consent, lack of accident or mistake, and a modus operandi of waiting until the victims were incapable of resisting due to intoxication or lack of consciousness."
The defense argued the only similarity in all of the cases was the presence of alcohol and "that there are few factual similarities between each alleged victim." Among the alleged differences cited were the level of intoxication; the alleged victims' stage of consciousness; the nature of the sexual contact; and whether there was verbal communication to stop.
Skanchy ruled the testimony could be allowed. Lowther appealed.
In July 2015, the Utah Court of Appeals said in a 2-1 decision that the judge did not adequately balance the proper inferences that may be drawn from the testimony against the improper inferences. The ruling also said the testimony of the alleged victim in the Dec. 1, 2009, incident should have been excluded and the case was sent back to the trial court for evaluation of the admissibility of the other two alleged victims' testimony.
The state then asked the Utah Supreme Court to overturn that decision. But in their opinion, issued April 21, the justices affirmed the Utah Court of Appeals' conclusion — although under different reasoning — that Lowther is entitled to withdraw his no-contest pleas.
The opinion said a judge is "free to consider any relevant factors" in balancing the probative value of the doctrine of chances evidence against the risk of unfair prejudice. In addition, the ruling said, if Lowther does withdraw his pleas, the testimony of all three of the other alleged victims should be weighed.
Twitter: PamelaMansonSLC