Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Henthorn

United States Court of Appeals, Tenth Circuit

July 26, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
HAROLD ARTHUR HENTHORN, Defendant-Appellant.


          O. Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Districts of Colorado and Wyoming, Denver, Colorado, for Appellant.

          J. Bishop Grewell, Assistant United States Attorney (Robert C. Troyer, Acting United States Attorney, with him on the brief), Office of the United States Attorney, Denver, Colorado, for Appellee.

          Before TYMKOVICH, Chief Judge, SEYMOUR, and KELLY, Circuit Judges.

          TYMKOVICH, Chief Judge.

         This case presents us with the difficult issue of whether a district court presiding over a murder trial abused its discretion in admitting evidence of prior, similar incidents, including whether the defendant killed his second wife in circumstances similar to those that led to the death of his first wife.

         We affirm. The district court did not abuse its discretion in admitting prior similar conduct. The court fully explained, and we agree, that the evidence was properly admitted under Federal Rule of Evidence 404(b), was relevant, and was not substantially outweighed by unfair prejudice.

         I. Background

         In September 2012, Harold Henthorn's second wife, Toni, [1] died after falling more than 100 feet from a cliff in Rocky Mountain National Park. She fell in a remote location with poor cellular service and no nearby aid stations. Henthorn first called 911 around 6:00 pm, but-due to the remoteness of the location-by the time the first ranger arrived on the scene, it was after 8:00 pm and Toni was dead. After an investigation, Henthorn was charged with and tried for first-degree murder on the government's theory that he, with premeditation and malice aforethought, pushed Toni over the cliff to her death.

         The evidence presented at trial provides a basic timeline of events, starting in the early afternoon when Henthorn and Toni set out for their hike as part of a celebration of their twelfth wedding anniversary. Sometime before 3:30 pm, the couple left the established trail. Photographs around this time show the couple eating lunch atop a scenic cliff overlook. Additional photographs indicate that the couple continued off trail and found a cliff below their lunch spot around 4:45 pm. It is estimated that Toni fell from that cliff shortly before 5:15 pm. Henthorn estimates it took him forty-five minutes to call 911 after Toni's fall, including fifteen minutes to reach her body and thirty minutes to assess and move her, return to cellular coverage, and call 911. The first 911 call occurred at 5:54 pm. At 6:16 pm, Henthorn sent a text message to Toni's brother, Barry Bertolet, indicating that Toni was in critical condition after falling from a rock, EMTs were coming, Barry should catch the next flight, and his cell phone battery was low. Henthorn exchanged several conversations with 911 dispatchers between the time of his first call at 5:54 pm and when the first EMT ranger arrived at the scene around 8:00 pm, examined Toni's body, and reported her death.

         An investigation of the incident raised a number of questions about Henthorn's version of events. For example, Henthorn told a ranger that he and Toni initially planned to hike the Bear Lake trail, a half-mile of paved, handicapped-accessible walking with no elevation gain. He explained that they switched to Deer Mountain trail at the last second to avoid crowds. Deer Mountain trail is a three-mile hike climbing 1, 200 feet from its trailhead to its 10, 200-foot summit, and thus an odd choice for Toni, who had undergone three knee surgeries and whose chronic injuries left her unable to ski. Henthorn also feigned unfamiliarity with the park and told a ranger that he had made only one earlier scouting trip to the park, but phone records revealed he visited the park at least eight or nine times in the six weeks before Toni's death. And while Henthorn described their venture away from the Deer Mountain trail to the off-trail lunch spot and lower cliff (where Toni fell) as a spontaneous decision to get away from crowds, find a romantic spot, or see wild turkeys or deer, investigators later discovered that he was quite familiar with the precise area where Toni died. For instance, Henthorn reported a white sheet adorned a cliff near Toni's fall, but that sheet had actually been removed by Park Service the week before her fall. And the Park Service found a detailed, annotated map of the park in Henthorn's car with notes, highlighting, and a pink "X" marking the spot on the map where Toni fell.

         Evidence of Henthorn's communications during and after the incident was also troubling. For example, Henthorn reported certain vital signs (e.g., pulse and respirations), but the vitals he provided were inconsistent with Toni's injuries.[2] During the 911 call beginning at 6:54 pm, the dispatchers attempted to coach Henthorn through CPR but doubted he was actually performing it.[3] Less than four minutes into the call, Henthorn said he had to turn off his phone because his battery was almost gone. After hanging up on the 911 dispatcher, however, Henthorn made another twenty-two calls and sent or received ninety-eight text messages, including multiple calls and at least sixteen text messages to a friend asking if he could drive to pick Henthorn up from Estes Park and recommending that the friend take a particular route. And while Toni sustained serious injuries from the fall, the medical examiner found no signs of the abrasions, contusions, or anterior rib fractures typically associated with the performance of CPR.[4]Toni's lipstick was not even smeared from the alleged mouth-to-mouth resuscitation.

         Finally, the investigation revealed Henthorn had taken out several large life insurance policies on Toni's life prior to her death and recently made himself the beneficiary of a life insurance annuity originally naming their seven-year-old daughter as the beneficiary.[5]

          During the course of the investigation, prosecutors learned of two prior incidents involving Henthorn and his wives. First, they became aware of the mysterious circumstances surrounding the death of Henthorn's first wife, Lynn, in May 1995. Lynn died while she and Henthorn were changing a tire on the side of the road; she was crushed under the car and died from internal injuries consistent with traumatic asphyxiation. Prior to that incident, Henthorn had also taken out a large life insurance policy on Lynn, but no legal action came as a result. Second, they discovered an incident in May 2011 when Henthorn threw a heavy beam off a deck he was repairing at the couple's vacation cabin near Grand Lake, Colorado. The beam struck Toni in the back of the neck and upper back, injuring her neck.

         The district court allowed the prosecution to present evidence at Henthorn's murder trial of the two prior incidents to rebut Henthorn's defense that Toni's death was an accident. On appeal, Henthorn contends the district court erred in admitting the evidence.

         II. Analysis

         Evidence of crimes, wrongs, or other acts is prohibited under the Federal Rules of Evidence when used "to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Fed.R.Evid. 404(b)(1). Such evidence is permitted, however, "for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed.R.Evid. 404(b)(2). To determine whether Rule 404(b) evidence is properly admitted, we look to the four-part test from Huddleston v. United States, 485 U.S. 681 (1988):

(1) The evidence must be offered for a proper purpose under Rule 404(b);
(2) The evidence must be relevant under Rule 401;
(3) The probative value of the evidence must not be substantially outweighed by its potential for unfair prejudice under Rule 403; and
(4) The district court, upon request, must have instructed the jury pursuant to Rule 105 to consider the evidence only for the purpose for which it was admitted. See United States v. Rodella, 804 F.3d 1317, 1333 (10th Cir. 2015), cert. denied, 137 S.Ct. 37 (2016).

         Admissibility of evidence under Rule 404(b) "involves a case-specific inquiry that is within the district court's broad discretion." United States v. Mares, 441 F.3d 1152, 1157 (10th Cir. 2006) (citing United States v. Olivo, 80 F.3d 1466, 1469 (10th Cir. 1996)). We review a district court's decision to admit such evidence for an abuse of discretion and "will not reverse unless the district court's decision exceeded the bounds of permissible choice in the circumstances or was arbitrary, capricious or whimsical." Rodella, 804 F.3d at 1329 (citing United States v. Nance, 767 F.3d 1037, 1042 (10th Cir. 2014)).

         Before trial, the government filed a notice of Rule 404(b) evidence, stating that it planned to introduce evidence of three prior incidents involving Henthorn, his wives, and his former sister-in-law: (1) Lynn's death while changing a tire in May 1995; (2) Henthorn's secret acquisition in 2010 of a $400, 000 life insurance policy on Grace Rishell (who was married to Lynn's brother) in which he named himself as the primary beneficiary; and (3) a previous injury suffered by Toni in May 2011. The defense objected and filed a motion in limine to exclude the evidence, primarily on the ground that it constituted improper character evidence and was substantially more prejudicial than probative.

         To consider the issues, the district court held an extensive, two-day hearing in which it heard evidence from ten witnesses (including seven defense witnesses), received over thirty exhibits, and heard oral argument from both sides. In a subsequent eighteen-page order covering all of the Huddleston factors, the district court ruled that the evidence of both prior incidents involving his wives would be admitted for the limited purpose of proving planning, intent, and lack of accident relating to Toni's death in September 2012. The court denied the government's request to allow testimony regarding the life insurance policy Henthorn took out on his former sister-in-law, finding that the incident "might be relevant to a charge of attempting to defraud Ms. Rishell's insurance company, but . . . [was] not relevant to the actual crime charged" (i.e., Toni's murder). R., Vol. I, pt. 1, at 237-38. The court provided limiting instructions that emphasized the admitted evidence's limited purpose both when the evidence was introduced at trial and in the written jury instructions.

          We address the district court's application of each of the four Huddleston factors in turn.

         1. Factor One: Proper Purpose

         The first Huddleston factor requires the evidence be offered for a proper purpose under Rule 404(b). "Evidence is offered for a proper purpose if it is utilized for any of the 'other purposes' enumerated in Rule 404(b), " United States v. Davis, 636 F.3d 1281, 1298 (10th Cir. 2011), and that enumerated list "is illustrative, not exhaustive, " United States v. Brooks, 736 F.3d 921, 939 (10th Cir. 2013) (citing United States v. Tan, 254 F.3d 1204, 1208 (10th Cir. 2001)). "Rule 404(b) is considered to be an inclusive rule, admitting all evidence of other crimes or acts except that which tends to prove only criminal disposition." Brooks, 736 F.3d at 949.

         The government was required to prove Henthorn committed a specific intent crime: first-degree murder requires a "willful, deliberate, malicious, and premeditated killing." 18 U.S.C. § 1111(a). It offered the prior acts evidence to prove "Henthorn's intent, motive, and plan, " and to "establish that the death of his wife Toni was no accident." R., Vol. I, pt. 1, at 16; id. at 22 (invoking "intent, motive, planning, preparation, and lack of accident"). The district court admitted the evidence to "rebut[] the defense of accident or to show[] plan and intent." Id. at 231, 237. These purposes are specifically contemplated by Rule 404(b) and are plainly proper. See Fed. R. Evid. 404(b)(2) (listing "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident" (emphases added)). Henthorn does not argue otherwise.[6]The first Huddleston factor is satisfied.

         2. Factor Two: Relevance

         The second Huddleston factor requires the evidence be relevant under Rule 401. Evidence is relevant if: (1) "it has any tendency to make a fact more or less probable than it would be without the evidence"; and (2) "the fact is of consequence in determining the action." Fed.R.Evid. 401. In other words, "[r]elevant evidence tends to make a necessary ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.