Utah Rule 404(B) Interpretation
When interpreting an evidentiary rule, we apply principles of statutory construction. See Butler v. Naylor, 1999 UT 85, P9, 987 P.2d 41 (citing State v. Robertson, 932 P.2d 1219, 1228 (Utah 1997)).
Thus, we first look to the plain language of the rule. See State v. Robertson, 932 P.2d 1219, 1228 (Utah 1997).
Applying principles of statutory construction, the plain language of a rule "is to be read as a whole, and its provisions interpreted in harmony with other provisions in the same rule." Lyon v. Burton, 2000 UT 19, P17, 5 P.3d 616, 622.
Thus, we are obligated to define "person" harmoniously throughout rule 404. Accordingly, we hold that "person" as set out in rule 404(b) can be an "accused," a "victim," or a "witness," as in rule 404(a).
We look "to the interpretations of the federal rules of evidence by the federal courts to aid in interpreting the Utah rules." State v. Banner, 717 P.2d 1325, 1333-34 (Utah 1986).
n this instance, however, the federal courts are in conflict as to whether rule 404(b) applies to a "person" who is not also the defendant. Compare Agushi v. Duerr, 196 F.3d 754, 760 (7th Cir. 1999) (holding "that Rule 404(b) does apply to third parties" and citing Huddleston v. United States, 485 U.S. 681, 685-86, 99 L. Ed. 2d 771, 108 S. Ct. 1496 (1988), as support for that proposition);
United States v. Blum, 62 F.3d 63, 68 (2d Cir. 1995) (noting that rule 404(b) "permits admission against third parties of evidence of 'crimes, wrongs, or acts' if used to show 'motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident'") (quoting Fed. R. Evid. 404(b));
United States v. Stevens, 935 F.2d 1380, 1401-06 (3d Cir. 1991) (allowing a defendant to introduce "other crimes" evidence against a third party under rule 404(b));
United States v. McCourt, 925 F.2d 1229, 1232 (9th Cir. 1991) (finding that "because Rule 404(b) plainly proscribes other crimes evidence of 'a person,' it cannot reasonably be construed as extending only to 'an accused'");
United States v. Cohen, 888 F.2d 770, 776 (11th Cir. 1989) (noting that where evidence "involves behavior of a witness other than a defendant . . . the party advancing the evidence must demonstrate that it is not offered 'to prove the character of a person in order to show action in conformity therewith'") (quoting Fed. R. Evid. 404(b));
and United States v. McClure, 546 F.2d 670, 672-73 (5th Cir. 1977) (applying rule 404(b) to evidence of the pattern of coercion of a third party, thus evidencing the defendant's lack of intent);
with United States v. Gonzalez-Sanchez, 825 F.2d 572, 583 (1st Cir. 1987) (holding that "rule 404(b) does not exclude evidence of prior crimes of persons other than the defendant");
United States v. Sepulveda, 710 F.2d 188, 189 (5th Cir. 1983) (holding that rule 404(b) only applies to acts by the defendant individually); and United States v. Morano, 697 F.2d 923, 926 (11th Cir. 1983) (holding that "rule 404(b) does not specifically apply to exclude . . . evidence that involves an extraneous offense committed by someone other than the defendant").
Many of the courts that have held either that Rule 404(b) does not apply to a "person" who is not also a defendant or that a lower standard of admissibility applies, see, e.g., Stevens, 935 F.2d at 1404-05, were dealing with "reverse 404(b)" situations wherein the defendant presented evidence of similar crimes to the one charged perpetrated by someone other than the accused. See, e.g., id. This issue is not before us.