Opinion
¶1 Mistie Dee Swearingen was charged with four counts of distributing or arranging to distribute a controlled substance for her involvement in three undercover drug sales. A jury convicted her on all counts, based largely on the testimony of a confidential informant. Swearingen appeals her convictions, asserting that the trial court erred by excluding evidence concerning the nature of the relationship between the confidential informant and law enforcement. While she also raises other claims of error, we do not address them because we conclude that the trial court erroneously excluded evidence of bias regarding the States main witness and we agree that Swearingen was prejudiced by this exclusion. Accordingly, we vacate Swearingens convictions and remand her case for a new trial.
BACKGROUND 1
¶2 In 2018, a detective with the Emery County Sheriffs Office (Detective) hired an “extremely hard work[ing],” “good kid” with a “little drug problem” to act as a confidential informant (Informant) who would assist law enforcement officers in conducting controlled drug buys. Detective often hired informants to assist his law enforcement work; under the terms of the typical arrangement, an informant would agree to help with “controlled drug buys” and Detective would agree to “lessen the charge of [the] specific crime that they were arrested for.” But in 2019, at the time of the controlled buys at issue in this case, Informant was not working off any pending criminal charges, and so Detective offered a different arrangement: he agreed to pay Informant $100 for each drug buy he completed.
¶3 To initiate the buys, Informant texted several individuals, including Swearingen, offering to purchase methamphetamine or heroin. Swearingen, a longtime acquaintance of Informant and fellow drug user, “happened to be somebody that replied” as willing to sell those substances. Soon after receiving his text, Swearingen met with Informant three times to sell controlled substances. For each controlled buy with Swearingen, Informant wore a listening device and was in contact with police officers before and after visiting Swearingens residence. Law enforcement did not observe the actual exchange of drugs and money between Informant and Swearingen; while Informant wore a listening device during all the buys, the audio was inconsistent and at times unclear. Detective thought he recognized Swearingens voice on one of the recordings but acknowledged that he did not hear any specific discussion about the drug deal taking place.
¶4 At trial, Detective testified that when he uses “a confidential informant for drug buys, [he] want[s] to keep them as safe ․ as [he] can.” According to Detective, the State would not file charges against the alleged drug seller until the “particular informant is not active anymore as far as buying drugs.” Detective explained, “Well wait for a time for the heat, so to speak, to die down with that individual, and then well file charges.”
¶5 Approximately a year after Informants three controlled buys from Swearingen, the State charged Swearingen with four counts of distributing or arranging to distribute a controlled substance. Swearingen pleaded not guilty, and the case went to trial.
¶6 After a jury was empaneled, the State moved to exclude evidence of Informants criminal history, specifically a drug-related arrest that occurred in 2020, one year after he conducted the controlled drug buys with Swearingen. The State asserted that no charges were filed as a result of Informants 2020 arrest and that the arrest was not related to Swearingens charges. The State did acknowledge that Informant had “signed a contract [with police] to work [the drug charges] ․ off” and was never charged after his arrest. The State moved to exclude evidence of Informants 2020 arrest as irrelevant, because it occurred after the events of Swearingens case, and as inadmissible under rule 609 of the Utah Rules of Evidence, because the arrest did not result in felony charges (or convictions) and did not involve dishonesty. The State argued that the 2020 arrest had nothing to do with Swearingen and so the prejudicial effect of the evidence “would far outweigh any kind of probative value.”
¶7 In response, trial counsel asserted that the evidence of Informants 2020 arrest should be admitted. Counsel argued,
[Informant] was working as [an informant] before the alleged incident involving Ms. Swearingen. And the fact that he continued and/or continues to work with ․ law enforcement should definitely be an extremely relevant factor in ․ his credibility. In other words, he may have incentive to ․ testify against Ms. Swearingen in order to ․ support his relationship with the law enforcement ․ [This] show[s] that he does have [a] motive to ․ make a statement other than the truth today. ․ [T]his is impeachment.
¶8 The court ruled that it would “allow testimony with regard to [Informants] relationship with law enforcement, his working with law enforcement, [and] the conditions of that arrangement.” Nevertheless, the court granted the States motion in limine, at least in part, and excluded any evidence of the 2020 arrest, concluding that because the 2020 arrest occurred after the 2019 controlled buys at issue in the case, the evidence was irrelevant and therefore inadmissible.
¶9 Ultimately, the jury convicted Swearingen as charged. Swearingen now appeals.
ISSUE AND STANDARD OF REVIEW
¶10 Swearingen asserts, among other things, that the trial court erred in excluding evidence of Informants 2020 arrest.
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Generally, trial courts are afforded “a great deal of discretion in determining whether to admit or exclude evidence.” State v. Cuttler, 2015 UT 95, ¶ 12, 367 P.3d 981 (quotation simplified). Thus, we review evidentiary determinations for an abuse of discretion. See id. “Legal errors, such as the application of an improper legal standard [in assessing the admissibility of evidence], are usually an abuse of discretion.” Northgate Village Dev., LC v. City of Orem, 2019 UT 59, ¶ 21, 450 P.3d 1117 (quotation simplified). Further, we will not reverse an erroneous decision to exclude evidence unless the error is harmful. See State v. Boyd, 2001 UT 30, ¶ 40, 25 P.3d 985 (“Even should we find such error [in the exclusion of evidence], we will only reverse if ․ absent the error there is a reasonable likelihood of an outcome more favorable to the defendant.” (quotation simplified)).
ANALYSIS
I. The Trial Court Erred by Excluding Evidence of Informants 2020 Arrest
¶11 Relevance is a “very low bar for the admission of evidence.” See Harrison v. SPAH Family Ltd., 2020 UT 22, ¶ 71, 466 P.3d 107 (quotation simplified). And evidence that undermines the credibility of a witness is always relevant. See, e.g., Davis v. Alaska, 415 U.S. 308, 316 (1974) (“The partiality of a witness is subject to exploration at trial, and is always relevant as discrediting the witness and affecting the weight of [the witnesss] testimony.” (quotation simplified) (emphasis added)); accord State v. Hackford, 737 P.2d 200, 203 (Utah 1987). Here, Informant had been arrested for drug possession one year prior to Swearingens trial but had not been charged with any crime following that arrest. Trial counsel requested the opportunity to explore whether Informant felt pressure to provide testimony favorable to the prosecution lest he face drug-related charges himself. But trial counsel was unable to cross-examine Informant about his 2020 arrest and bring any potential biases about the 2020 events to light because the trial court excluded the evidence of Informants arrest as irrelevant and inadmissible.
¶12 We agree with Swearingen that the trial court erred in excluding evidence of Informants 2020 arrest. As we explain below, the evidence is admissible under rules 401, 608(c), and 403 of the Utah Rules of Evidence. Likewise, because the evidence is admissible for a proper non-character purpose, it is not barred by rule 404 as a prior bad act.
A. The 2020 Arrest Evidence Is Admissible Under Rule 401
¶13 “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Utah R. Evid. 401.
¶14 As discussed above, supra ¶ 11, bias evidence is always sufficiently relevant to clear the low bar under rule 401. Here, Informant had an ongoing contract with law enforcement that could have incentivized him to testify against Swearingen both to support that relationship and avoid drug charges related to his 2020 arrest.
¶15 Because the 2020 arrest evidence would make Informants potential bias “more ․ probable than it would be without the evidence,” and because Informants potential bias was a “fact ․ of consequence,” the trial court erred by excluding cross-examination about that arrest from Swearingens trial under rule 401 of the Utah Rules of Evidence.
B. The 2020 Arrest Evidence Is Admissible Under Rule 608(c)
¶16 Under rule 608(c) of the Utah Rules of Evidence, “[b]ias, prejudice or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by other evidence.”
¶17 The prosecutor and trial court appear to have overlooked this rule when considering whether to admit the evidence of Informants 2020 arrest. Informants relationship with law enforcement had been clearly established prior to his arrest in 2020, and the decision not to file charges after that arrest would seem to qualify as evidence of “bias, prejudice or ․ motive [for Informant] to misrepresent” at Swearingens trial. See State v. Hackford, 737 P.2d 200, 203 (Utah 1987) (quotation simplified) (concluding that rule 608(c) is the proper rule under which to consider the propriety of cross-examination of a witness for bias, prejudice, or a motive to misrepresent).
¶18 Because the 2020 arrest evidence is evidence of Informants potential bias, it was admissible to impeach Informant and the trial court erred by excluding it from Swearingens trial under rule 608(c).
C. The 2020 Arrest Evidence Is Admissible Under Rule 403
¶19 “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ․ unfair prejudice ․” Utah R. Evid. 403.
¶20 “Evidence is only unfairly prejudicial if it creates an undue tendency to suggest decision on an improper basis.” State v. Von Niederhausern, 2018 UT App 149, ¶ 24, 427 P.3d 1277 (quotation simplified). “Rule 403 provides that the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of misleading the jury.” State v. Maestas, 2012 UT 46, ¶ 138, 299 P.3d 892 (quotation simplified). “The critical question is whether [evidence] is so prejudicial that the jury will be unable to fairly weigh the evidence.” Id. (quotation simplified). “Moreover, the fact that evidence is prejudicial does not, by itself, render that evidence inadmissible. Rather, if the evidence is prejudicial but is at least equally probative, it is properly admissible.” State v. Ramirez, 924 P.2d 366, 369–70 (Utah Ct. App. 1996) (quotation simplified), see also State v. Beverly, 2018 UT 60, ¶ 72, 435 P.3d 160 (“Given [the evidences] overwhelming probative value we cannot say that its probative value is substantially outweighed by a danger of unfair prejudice.” (quotation simplified)).
¶21 Law enforcement did not observe the actual exchange of drugs and money between Informant and Swearingen; and while Informant wore a listening device during the buys, the audio was inconsistent and at times unclear, making Informants testimony against Swearingen the lynchpin of the States case. It is well established that when a witness is “the only person who could testify about” the conduct charged in a criminal case, their “testimony [is] highly probative,” State v. Burke, 2011 UT App 168, ¶ 51, 256 P.3d 1102, cert. denied, 263 P.3d 390 (Utah 2011), and “the more essential the witness is to the prosecutions case, the more latitude the defense should be given to explore fundamental elements such as motive, bias, or credibility,” State v. Orn, 482 P.3d 913, 920 (Wash. 2021) (quotation simplified). Based on this fact, Informants “testimony and credibility were of the utmost importance in the jurys determination.” See Jaramillo v. Fisher Controls Co., 698 P.2d 887, 896 (N.M. Ct. App. 1985).
¶22 Thus, the rule 403 balancing test comes out in favor of admission of Informants 2020 arrest because there is little chance of unfair prejudice to the State and there is high potential probative value to Swearingen. Thus, the trial court erred by excluding this evidence from Swearingens trial under rule 403.
D. The Evidence of Informants 2020 Arrest Is Admissible for a Proper Non-character Purpose and Thus Is Not Barred by Rule 404 as a Prior Bad Act
¶23 Under rule 404(b) of the Utah Rules of Evidence, evidence of crimes, wrongs, or other bad acts is not admissible to prove that the person acted in conformity with a bad character. However, such evidence may be admissible for a non-character purpose such as motive or intent. Utah R. Evid. 404(b). This evidence must also be relevant to a non-character purpose under rule 401 and have probative value that is not “substantially outweighed by a danger of ․ unfair prejudice” to be admissible. Id. R. 402, 403.
¶24 The trial court determined that Informants 2020 arrest was irrelevant to his motive to testify against Swearingen because his arrest took place one year after Swearingen was charged with her drug crimes. However, this line of reasoning fails to take into account the potential motivation Informant might have to testify favorably for the prosecution because of the outstanding possibility that the State might still file charges against him related to that arrest. Trial counsel articulated this point as strong rationale for being allowed to use the evidence of Informants arrest under rule 404(b)(2) to impeach Informants testimony, stating that Informant “may have incentive to ․ testify against Ms. Swearingen in order to ․ support his relationship with the law enforcement” and that this “show[s] that he does have [a] motive to ․ make a statement other than the truth today.”
¶25 Informants motive to testify in a manner favorable to the prosecution is relevant under rule 401. See State v. Hackford, 737 P.2d 200, 203 (Utah 1987) (“[E]vidence of bias or motive is ‘always relevant as discrediting the witness and affecting the weight of [the witness’] testimony.’ ” (quoting Davis v. Alaska, 415 U.S. 308, 316 (1974))); State v. Worthen, 2008 UT App 23, ¶ 23, 177 P.3d 664 (“The Confrontation Clause require[s] the privilege to yield to the criminal defendants right to show the existence of possible bias and prejudice ․ [thus] the partiality of a witness is subject to exploration at trial and is always relevant as discrediting the witness and affecting the weight of his testimony.” (quotation simplified)), affd, 2009 UT 79, 222 P.3d 1144. Thus, evidence of Informants 2020 arrest was relevant under rule 401.
¶26 And, while the State may have suffered some prejudice from the jury knowing that Informant had been arrested on drug possession charges, the probative value of that evidence far outweighs any prejudice. The State had not filed charges based on Informants arrest, making evidence of that arrest highly probative to a jury weighing Informants potential bias against the validity of his proffered testimony. Informant was, after all, the only witness to testify about the alleged controlled drug buys with Swearingen and therefore evidence that Swearingen was the seller of the drugs came from Informant alone.
¶27 Thus, we are unpersuaded that evidence of Informants 2020 arrest was properly excluded under rule 404, as it was admissible for a proper non-character purpose.
II. The Trial Courts Exclusion of Evidence of Informants 2020 Arrest Harmed Swearingen
¶28 Having determined that the trial court erred in excluding evidence of Informants 2020 arrest, we turn to whether that error warrants reversal of Swearingens convictions—i.e., whether the trial courts error harmed Swearingen. This requires a showing that “absent the error there is a reasonable likelihood of an outcome more favorable to the defendant.” State v. Boyd, 2001 UT 30, ¶ 40, 25 P.3d 985 (quotation simplified).
¶29 Swearingen alleges she was harmed by the trial courts erroneous exclusion of the evidence of Informants arrest under the Utah Rules of Evidence. Under the harmless error rule, whether an evidentiary error is more harmful than not depends on the “importance of [Informants] testimony in the prosecutions case” as well as the “absence of evidence collaborating or contradicting the testimony of the witness on material points.” State v. Hackford, 737 P.2d 200, 205 (Utah 1987) (quotation simplified). The State argues that while Informants testimony was a critical part of the case against Swearingen, the jury had sufficient information about Informants prior drug use and criminal record to fully appraise Informants biases and motivations. See id. (holding that a defendant must be allowed to cross-examine a witness to establish the witnesss bias). Yet Swearingen offers a persuasive counterargument that the jury could reasonably have considered that Informants prior arrest with no accompanying charges furnished a motive for Informant to favor the prosecution in his testimony above and beyond the information already admitted regarding his history of drug use and related convictions. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (holding it is constitutionally improper for a trial court to deny a defendant the opportunity to impeach a witness for bias, and such bias is subject to the harmless-error rule).
¶30 While the jury was made aware of Informants drug use and criminal record, which might have made him less credible, the evidence of the timing of Informants arrest—as distinct from the other evidence—uniquely demonstrates the ongoing relationship between Informant and law enforcement at the time he testified against Swearingen. Throughout the trial, the State denied the relevance of Informants 2020 arrest because it occurred after the alleged drug buys. Yet the timing of Informants arrest after the alleged drug buys and its proximity to trial are precisely what make the evidence so probative of Informants potential bias: Informant had an ongoing contract with law enforcement to work off drug charges, no charges were filed as a result of Informants 2020 arrest, and the statute of limitations to file charges against Informant was still running at the time of Swearingens trial.
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¶31 We conclude it is likely that the jury would have been persuaded by the excluded evidence of Informants prior arrest to view Informant as less credible, and as a result there is a reasonable likelihood that the jury would have entertained a reasonable doubt whether Swearingen engaged in the drug buys for which she was charged. In sum, the trial courts improper exclusion of evidence of Informants prior arrest prejudiced Swearingen. And absent this prejudice, there was “a reasonable likelihood of an outcome more favorable” to Swearingen. See Boyd, 2001 UT 30, ¶ 40 (quotation simplified).
CONCLUSION
¶32 The trial court abused its discretion when it improperly excluded evidence of Informants prior arrest, prejudicing Swearingen. We therefore reverse Swearingens convictions and remand the matter for a new trial.
FOOTNOTES
2
. As we find the exclusion-of-evidence issue to be determinative, we decline to reach the merits of the other issues presented on appeal. See Brady v. Park, 2019 UT 16, ¶ 7, 445 P.3d 395 (“Because our resolution of this issue renders a consideration of the [other] issue[s] unnecessary, we decline to address [them].”). However, it is worth acknowledging them briefly.Portions of the trial were held virtually over a videoconference platform, and as the trial started, Swearingen experienced technical difficulties and was unable to log into the platform on time. As a result, she was not present for the first few minutes of the proceeding, during which the court made introductory remarks to the prospective jurors. Swearingen asserts that her absence during this time violated her constitutional right to be present at all stages of the criminal case against her. We are unpersuaded by this argument.Swearingen also asserts that because neither the trial court nor trial counsel noticed her absence or attempted to cure any negative inference among prospective jurors from that absence, the trial court plainly erred and her trial counsel was constitutionally ineffective. While we do not agree that these errors reach the height of constitutional ineffectiveness, we certainly do not condone what appears to be the deficient performance of her counsel and others in this case. It is a low bar for the participants in a criminal jury trial to, at the very least, verify that a defendant is accounted for and present before starting the proceedings.
3
. Utah law requires that the prosecution for a misdemeanor offense be commenced within two years after the offense is committed. See Utah Code § 76-1-302(1)(b).
CHRISTIANSEN FORSTER, Judge:
Judge Michele M. Christiansen Forster authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.