FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO (D.C. NO. 1:14-CR-00448-RBJ-1)
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.
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.
TYMKOVICH, Chief Judge, SEYMOUR, and KELLY, Circuit Judges.
TYMKOVICH, Chief Judge.
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
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.
September 2012, Harold Henthorn's second wife, Toni,
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.
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.
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.
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. During the 911 call beginning at 6:54 pm,
the dispatchers attempted to coach Henthorn through CPR but
doubted he was actually performing it. 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.Toni's lipstick was not even smeared
from the alleged mouth-to-mouth resuscitation.
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.
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
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.
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).
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)).
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.
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.
address the district court's application of each of the
four Huddleston factors in turn.
Factor One: Proper Purpose
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.
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.The first Huddleston factor is
Factor Two: Relevance
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 ...