U.S. vs Harold Henthorn

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

UNITED STATES OF AMERICA, Plaintiff, vs. HAROLD HENTHORN, Defendant.

Criminal Case No: 14-CR-00448-RBJ

GOVERNMENT’S NOTICE OF RULE 404(b) EVIDENCE

________________________________________

The government plans to introduce other acts evidence that it

anticipates will take no more than one trial day. Given the nature of this

case, that evidence is critical to proving Henthorn’s intent, motive, and plan.

It will also establish that the death of his wife Toni was no accident.

As admission of these acts will greatly affect overall trial strategy, the

government files this notice early so that it can be discussed at the March

2nd motions hearing and a ruling made in advance of trial.1

1 The government provided discovery today of the Rule 404(b) acts

discussed herein to defense counsel. Consistent with the deadline in the Discovery Conference Memorandum, the government reserves the right to provide notice of other Rule 404(b) evidence in the future.

Case 1:14-cr-00448-RBJ Document 31 Filed 01/29/15 USDC Colorado Page 1 of 22

2

BACKGROUND

Harold Henthorn has been charged with the first-degree murder of his

wife Toni Henthorn in violation of 18 U.S.C. § 1111(a). The government

anticipates that the following will be established at trial.

In September 2012, Henthorn took his second wife Toni on a robust

hike in Rocky Mountain National Park to celebrate their 12th wedding

anniversary. It was an odd choice since 50-year-old Toni had bad knees that

had undergone two surgeries. Friends said that anything more strenuous

than a simple walk was not typical of Toni.

The two started on the Deer Mountain Trail around 1 p.m. The trail

climbs to over 10,000 feet in elevation. It is six miles round-trip. The

Henthorns left the established trail around 3:30 p.m. to eat lunch on a rocky

knob about a ¼ of a mile away. It is about 90 minutes from this knob to

Estes Park where the Henthorns had 7 p.m. dinner reservations for which

Toni would have wanted to freshen up.

Yet at 5 p.m., the Henthorns ensured they would be late by hiking

down a rock scree face to another knob, which sits atop a 140-foot cliff. The

loose rocks and steep incline would have been difficult on Toni’s knees. The

two took a few photos and, then, Toni tumbled to her death.


3

Henthorn told several conflicting stories about how Toni died. He told

law enforcement and family members that he did not see her fall, but rather

witnessed a blur while he was reading text messages. He told another

witness that both he and Toni were checking text messages and Toni had

wandered too close to the edge. He told other witnesses that Toni was trying

to take pictures and slipped.

Henthorn said that he and Toni initially left the trail to find a romantic

spot and because of the crowds that day. They then hiked to the lower knob

to see wild turkeys, for an intimate moment, or to scout future hikes to take

with their seven-year-old daughter. But a map found in Henthorn’s car

suggested these detours were not spontaneous: it marked the spot near where

Toni fell with a pink X.

Henthorn had extensively scouted the hike. Contrary to what he told

law enforcement, he made nine different trips to the area around Rocky

Mountain National Park that summer. And in the fortnight before their

anniversary, Henthorn had hiked six trails to find the perfect one for the trip.

Henthorn told divergent accounts of Toni’s death because, in fact, he

pushed her over the cliff as part of his plan to collect on multiple life

insurance policies. He is beneficiary or trustee of three policies on Toni,

totaling $4.5 million.


4

Toni is not Henthorn’s first spouse to die in bizarre circumstances

leaving her husband with significant insurance money. His first wife died

when a car allegedly fell on her as she allegedly crawled under it to allegedly

retrieve lug nuts. She was helping change a low —not flat— tire. As with

Toni, the first wife died in a remote area where Henthorn was the only

witness and told conflicting accounts of what happened.

The circumstances surrounding the death of Henthorn’s first wife

should be admitted as Rule 404(b) evidence to prove intent, motive,

preparation, plan, and lack of accident in Toni’s death. So should evidence of

life insurance that he took out on a former sister-in-law without her

knowledge. A 2011 incident where Henthorn dropped a 20-foot wooden beam

on Toni at their Grand Lake cabin is intrinsic evidence of his premeditation

in killing her. But, in an abundance of caution, the government provides

404(b) notice of that incident as well.

ARGUMENT

To prove first-degree murder, the government must establish:

First: the defendant caused the death of the victim named in the indictment;

Second: the defendant killed the victim with malice aforethought;

Third: the killing was premeditated; and


5

Fourth: the killing took place within the territorial jurisdiction of the United States.

Pattern Crim. Jury Instr. 10th Cir. 2.52.

“Malice aforethought” requires that Henthorn acted “deliberately and

intentionally” or “with callous and wanton disregard for human life.” Id.

Premeditation demands that the killing was “the result of planning or

deliberation.” Id. Because Henthorn is the only witness to Toni’s death, the

proof that he murdered her must rely on the circumstances leading up to her

death as well as prior actions that suggested he planned to kill her.

This is exactly the sort of evidence for which Rule 404(b) exists.

“Extrinsic acts evidence may be critical to the establishment of the truth as to

a disputed issue, especially when the issue involves the actor’s state of mind

and the only means of ascertaining that mental state is by drawing

inferences from conduct.” Huddleston v. United States, 485 U.S. 681, 685

(1988) (discussing 404(b) evidence).

Rule 404(b) precludes using other acts to prove that commission of the

charged crime conforms to the defendant’s character. Fed. R. Evid. 404(b)(1).

But other acts evidence may be admitted to prove “motive, . . . intent,

preparation, plan, . . . lack of accident” or another purpose. Fed. R. Evid.


6

404(b)(2). The Rule is one of “inclusion.” United States v. Smalls, 752 F.3d

1227, 1237 (10th Cir. 2014).

When the four prerequisites for other acts evidence are met, the

evidence must be admitted. United States v. Davis, 636 F.3d 1281, 1298

(10th Cir. 2011) (“[I]f the other act evidence is relevant and tends to prove a

material fact other than the defendant’s criminal disposition, it is offered for

a proper purpose under Rule 404(b) and may be excluded only under Rule

403.”) (citation omitted).

Those prerequisites are:

(1) the evidence must be offered for a proper purpose under Rule 404(b);

(2) the evidence must be relevant;

(3) the court must determine that, under Rule 403, the probative value of the evidence is not “substantially outweighed by its potential for unfair prejudice”; and

(4) if requested under Rule 105, the court must instruct the jury that the evidence is to be considered only for the purpose for which it was admitted.

United States v. Joe, 8 F.3d 1488, 1495 (10th Cir. 1993).


7

I. The evidence surrounding the death of Henthorn’s first wife (Lynn) is admissible Rule 404(b) evidence.

The evidence that Harold Henthorn killed his first wife and collected

life insurance on her should be admitted under Rule 404(b) to establish

intent, motive, planning, preparation, and lack of accident.

A. Lynn Henthorn died in unusual circumstances where the only witness was her husband who received nearly $500,000 from her death.

Henthorn’s first wife died in 1995 when she was crushed under their

Jeep. The two had stopped late at night in a remote area to change a low

tire. As a result of Lynn’s death, Henthorn earned almost $500,000 from

three life insurance policies on Lynn, one bought only four months earlier.

Henthorn told law enforcement that because his car jack was not

working properly, he had used two boat jacks to lift the Jeep. Lynn held a

flashlight and the lug nuts while Henthorn changed the tire. (Henthorn

oddly turned away a car that offered to shine its lights on the scene.) When

he later threw the low tire in the back of the car, the car fell off the jacks. He

heard Lynn call for help and found her pinned underneath the car.

Henthorn eventually flagged down another car. He initially told them

not to touch his wife and tried to stop them from performing CPR. Because it


8

was cold outside, the responders put their coats on Lynn. Harold was

wearing a coat, but had not covered his wife.

While Henthorn told law enforcement that the Jeep fell when he threw

the tire in the back, he told others that it fell when he closed the tailgate or

alternatively when he sat on the tailgate. The investigating officers noticed a

partial footprint mark on the vehicle near the rear fender that suggested yet

another possibility.

Henthorn told some people that Lynn had dropped the lug nuts or the

flashlight and went to retrieve them.2 He told others that he dropped the lug

nuts and Lynn went to retrieve them because of his bad back. Henthorn told

a first responder that the Jeep fell on Lynn when she was changing the tire,

because he did not know how to change it. But Henthorn also said that he

had warned Lynn not to touch the vehicle and to stay at least six feet away.

Henthorn told some that Lynn never spoke to him after the Jeep fell.

He told others that she called to him. He told some that he pulled her out

from under the Jeep and started CPR. He told others that he didn’t

remember who pulled her out.

2 The person who found the flashlight under the car noticed that it was

in the off position, another oddity, if Lynn had been using it.


9

In the coming years, Henthorn offered more bizarre stories about

Lynn’s death: She was bending over in the trunk when the hatchback fell on

her neck and killed her. A lug nut shot out and pierced her lung. A rod from

one of the jacks shot into his wife’s chest and killed her. The cabin on the

flight-for-life helicopter or plane depressurized and collapsed her lungs. She

died in a head-on car collision from which he escaped uninjured. He even told

a Sunday School class that she had died from cancer and lost a baby she was

carrying to chemotherapy.

B. The evidence of Lynn Henthorn’s death mirrors 404(b) evidence admitted in other cases under the doctrine of chances.

The evidence surrounding Lynn Henthorn’s death parallels the 404(b)

evidence admitted in the cases of United States v. York, 933 F.2d 1343 (7th

Cir. 1991), overruled on other grounds by Wilson v. Williams, 182 F.3d 562,

567 (7th Cir. 1999), and State v. Roth, 881 P.2d 268, 272-74 (Wash. App.

1994), abrogated on other grounds in State v. Hampton 332 P.3d 1020 (Wash.

App. 2014). York was charged with attempting to defraud an insurer by

means of arson and murder. York, 933 F.2d at 1345. When a business

partner died in an explosion that destroyed the bar she owned with York, he

collected the life insurance. Id. at 1345-46. Applying Rule 404(b), the district


10

court let the government introduce evidence that York had also killed his wife

for life insurance three years before the bar explosion. Id. at 1348-49.

In affirming, the Seventh Circuit concluded that York’s collection of the

life insurance proceeds from murdering his wife was “compelling evidence

that York intended the same result” when he purchased a policy on his

business partner naming himself as the beneficiary. Id. at 1350. The

evidence of Lynn Henthorn’s death and insurance payout is likewise

compelling evidence that Henthorn intended the same result when he

purchased multiple policies on Toni. “It is not hard to envision that an

individual might murder another to recover insurance proceeds resulting

from the other’s death.” Cerro Gordo Charity v. Fireman’s Fund American

Life Insur. Co., 819 F.2d 1471, 1483 (8th Cir. 1987).

According to the “doctrine of chances,” the two deaths in York and

subsequent insurance payouts were likely “the product of design rather than

the vagaries of chance.” 933 F.2d at 1350. The deaths of both Henthorn

wives similarly show planning and preparation, not accident.

The doctrine of chances is an objective doctrine based on the

probability of events. Id. (citing 2 J. WIGMORE, EVIDENCE, § 302 AT 241

(CHADBOURN REV. 1979)). “The man who wins the lottery once is envied; the

one who wins it twice is investigated.” Id. The doctrine of chances merely


11

recognizes that with extremely rare events like murder, once is an accident,

but twice is a pattern.

This doctrine is “independent” of inferences based on a defendant’s bad

character. People v. Everett, 250 P.3d 649, 657 (Colo. App. 2010). It instead

relies on the notion “that it is objectively improbable that the accused would

be involved in multiple unusual events.” Id. Hence, it can also establish the

actus reus that no accident occurred here. See id.

As in York and Roth, the doctrine of chances and the similarities

between the two deaths demonstrate the relevance of the earlier death. In

York, the Seventh Circuit said it was “similarity enough” to be “probative of

intent” that both murders were the product of trying to collect on life

insurance policies. Id. at 1351; see also Roth, 881 P.2d at 276 (discussing

similarities). The similarities are greater between Lynn and Toni’s death

than in York, because both women were Henthorn’s wives.

Other similarities abound:

Both deaths involved bizarre “accidents.”

Both left Henthorn with significant insurance benefits.

Both occurred in remote locations.

Both times, Henthorn was the lone witness.

Both deaths occurred after about 12 years of marriage.


12

Henthorn told wildly varying stories about both deaths.

In both situations, the women were doing atypical things when they died. Lynn Henthorn was fastidious in dress and a cautious woman who would not ordinarily crawl under a jacked-up car to search for lug nuts while wearing a nice sweater, especially after exploratory surgery only two weeks earlier. Toni Henthorn was not likely to scramble down a rocky face on bad knees to look over a cliff in the midst of a tough hike at elevation.

In both situations, Harold was eager to have the bodies quickly cremated despite family requests against it.

And Harold spread both women’s ashes on the same mountain near Ouray, Colorado.

Of course there are differences between the deaths as well. But “prior

acts need not be duplicates of the one for which the defendant is now being

tried.” York, 933 F.2d at 1351 (citation omitted); Roth, 881 P.2d at 277

(despite “certain differences,” deaths were of “same class”).

Given the similarities between the two murders and the scarcity of

other evidence on point, the death of Lynn Henthorn is highly probative of

Harold’s intent, motive, planning, and lack of accident in killing his second

wife. For that reason, it also meets the third requirement for admission:

compliance with Rule 403.


13

Exclusion of evidence under Rule 403 “is an extraordinary remedy and

should be used sparingly.” Smalls, 752 F.3d at 1238, n.4 (citation &

quotation marks omitted). “[I]t is not enough that the risk of unfair prejudice

be greater than the probative value of the evidence; the danger of that

prejudice must substantially outweigh the evidence’s probative value.”

United States v. Cerno, 529 F.3d 926, 936 (10th Cir. 2008). Henthorn cannot

show that introducing evidence of his first wife’s death is unfair. Nor can he

show that the prejudice substantially outweighs the evidence’s high probative

value in ascertaining his intent, motive, and planning, as well as proving lack

of accident. Old Chief v. United States, 519 U.S. 172, 184–85 (1997) (scarcity

of evidence on point increases its probative value in Rule 403 balancing)).

Henthorn will raise two challenges. First, he will argue that Lynn’s

death is too old to be probative of the current crime. Second, he will argue

that there is insufficient evidence that he killed Lynn.

1. The rarity of losing two spouses in bizarre accidents makes Lynn’s death probative even after 17 years.

“[T]here is no absolute rule regarding the number of years that can

separate offenses” when it comes to deciding the admissibility of prior acts.

United States v. Franklin, 704 F.3d 1183, 1189 (10th Cir. 1983); United

States v. Larson, 112 F.3d 600, 605 (2d. Cir. 1997) (admitting acts from 16 to


14

20 years prior because there is no “bright-line rule as to how old is too old”).

Courts have admitted incidents from 50 years prior to the charged offense.

United States v. Horse, 544 Fed. Appx. 678, 679 (9th Cir. 2013) (unpublished).

The nature of marriage suggests that 17 years is not too remote when

both victims were married to the same defendant. As a general matter, it

takes significant time to find a mate and decide to marry. Accord Roth, 881

P.2d at 272 (admitting death of wife nine years earlier). The Eighth Circuit

recently recognized as much. “Considering that [the solicitation of murder]

involved a different husband, [a] lapse of three years is quite short.” United

States v. Young, 753 F.3d 757, 769 (8th Cir. 2014) (emphasis added)

(reviewing 404(b) evidence).

The doctrine of chances also speaks to the passage of time. With

common occurrences, a tighter time frame is required for an earlier incident

to be probative of a later one because such events may occur relatively

frequently by random chance. But with rare events that are not expected

even once in a lifetime, i.e., a spouse’s death in a bizarre accident, the

probative value of two such incidents in 17 years is quite high for how and

why each event occurred. “[I]t is not every day that one’s wife is murdered.”

York, 933 F.2d at 1350.


15

Even less common is when the only witness to the murder is the

primary beneficiary of the victim’s life insurance policies.

2. A jury could find by a preponderance of the evidence that Henthorn killed his first wife.

The admission of Lynn’s death requires only sufficient evidence that

Harold killed her under a preponderance of the evidence standard.

Huddleston, 485 U.S. at 685, 690. (The proof required to establish that he

killed Toni remains beyond a reasonable doubt.) But it is not this court’s role

to decide whether Henthorn killed his first wife by a preponderance of the

evidence. Huddleston, 485 U.S. at 689. This court decides only whether “a

jury could reasonably” reach that conclusion. Id. at 690. Once that low

threshold is met, it is the jury’s decision as to whether Henthorn actually

killed his first wife and what weight to give that finding in answering

whether he also killed his second wife.

Challenging the sufficiency of 404(b) evidence is a “heavy burden,”

York, 933 F.2d at 1352, which Henthorn cannot overcome. Henthorn was the

last person to see his wife alive, told bizarre and inconsistent stories about

what happened to her, had access to the means used to kill her, and was the

beneficiary of her life insurance. These factors led to the admission of 404(b)


16

evidence in York.3 Id. But there is even more here. Lynn died in a remote

area after Henthorn oddly rejected a stopping car’s offer to illuminate the tire

change. The rejection of help and the remote location support an inference

that Henthorn sought to avoid witnesses. Roth, 881 P.2d at 276 (remote

recreational setting meant no witness). And Lynn’s quick cremation over

family wishes suggests a desire to dispose of evidence.

The one distinction of note between this case and York is that it was

implausible that the death of York’s first wife was an accident. She had been

shot, which absent suicide, implied another actor. In this case, the deaths of

Henthorn’s wives taken individually could have been accidents. But, taken

together, the doctrine of chances removes that possibility. It is objectively

implausible that both of Henthorn’s wives would die in bizarre accidents in

remote areas where he was the lone witness and beneficiary of their life

insurance. That is what makes the 404(b) evidence here so probative.

Henthorn may argue that Lynn’s death was an accident, but what

matters is that a reasonable jury could find by a preponderance that it was

not. Roth, 881 P.2d at 272-74 (sufficiency standard met for other acts

3 York had told an inmate that he shot his first wife, but the Seventh

Circuit found that sufficient evidence existed even without the inmate’s testimony. 933 F.2d at 1352.


17

evidence that defendant killed prior wife to receive life insurance even though

no one witnessed whether wife was pushed over 300-foot drop or slipped);

Lisenba v. California, 314 U.S. 219, 225, 227-28 (1941) (admitting evidence

that first wife drowned in bathtub); see also United States v. Mayle, 334 F.3d

552, 562-63 (6th Cir. 2003) (sufficient evidence that Newman was murdered

even though no direct evidence of murder or that he was even dead).

Nothing more is required for admission under Huddleston.

II. The life insurance policy that Henthorn took out on Grace Rishell without her approval is admissible under 404(b).

Grace Rishell is Harold Henthorn’s former sister-in-law, who was

married to his first wife’s brother. In 2009, Rishell and Lynn Henthorn’s

brother were going through a divorce that had not yet been finalized.

Concerned for her financial stability, Rishell initially agreed to Harold

taking out a life insurance policy on her that would pay $50,000 to Grace’s

brother and each of her four daughters for a total of $250,000. (The evidence

will show that Henthorn had a romantic interest in Rishell.) Rishell went

through the physicals required for the policy, while Henthorn handled the

paperwork. But in the spring of 2010, Rishell decided that she no longer

wanted the policy and told the insurance agent to stop the policy from going

through. She took out a policy of her own at the time with another insurer.


18

Unknown to Rishell, her signature was forged to procure the original

policy as well. Henthorn made payments on the policy through December of

2012. And instead of listing her daughters and brother as beneficiaries, the

policy listed Henthorn. The policy was canceled in 2013 when the insurer

concluded that Henthorn had no insurable interest in Rishell.

That Henthorn took out a policy on Rishell is evidence both of a

common plan and of his motive, which are both appropriate under 404(b). As

in Roth, Henthorn’s interest in taking out life insurance policies on various

women in his life shows common plan. Roth, 881 P.2d at 272-73, 277 n.8.

Similarly in Young, it was proper to admit evidence that the defendant asked

the man she started dating right after her second husband’s death to list her

as a beneficiary on the man’s own policy. Id. at 769-70. It showed motive by

“demonstrat[ing] her preoccupation with realizing a financial return on her

husbands’ deaths with life insurance proceeds.” Id. at 770.

III. The evidence that a beam fell on Toni Henthorn should be admitted as intrinsic evidence of premeditation, but is alternatively 404(b) evidence.

A little over a year before Toni’s death, Harold dropped a 20-foot

wooden beam on her. Emergency personnel responded to the Henthorns’

cabin in Grand Lake, Colorado. Toni and Harold were the only witnesses to

the falling beam.


19

Toni Henthorn told medical personnel that her husband “was chucking

plywood over the deck” and she could not get out of the way of the piece that

hit her.4 But since the beam hit Toni in the back of her neck, she was relying

on her husband’s account of whether the beam was dropped, thrown, or

simply fell on her. And he had many accounts.

Henthorn told medical personnel that he did not know Toni was there

and had been blindly tossing wood off the deck. The Henthorns told others

that the board simply fell from the deck. Henthorn later told family members

and friends that he had been working on a ladder when he fell and dropped

the beam on Toni. Or the beam slipped from his hands while he was

standing on the ladder. He told another witness that Toni was holding the

ladder for him when the board fell. Henthorn told one friend in a joking

manner, “I was trying to kill my wife.” It was an odd joke for someone who

had already lost his first wife in tragedy.

The on-the-scene personnel will add that the incident was “weird,”

because it was an odd time of night to work on the cabin, and it was a “lucky

shot” and “a hell of a shot” for the board to hit Toni. As with Lynn’s death,

Toni had come outside to hold a flashlight for him.

4 Toni’s statements are admissible under Rule 803(4), while her

husband’s statements are admissible under Rule 801(d)(2).


20

Because the beam incident is direct evidence of the charged crime, it

does not fall within the ambit of the other-acts limitations set out by Rule

404(b). United States v. Green, 175 F.3d 822, 831 (10th Cir. 1999). The beam

incident shows that Henthorn committed the present murder after the

required deliberation; specifically, after already trying to kill Toni and

failing. That converts the beam incident into direct proof of his

premeditation, as it shows his continuing efforts to kill Toni.

While the beam incident should be admitted as intrinsic evidence of the

crime here, in an abundance of caution, the United States moves for its

admission under 404(b) as well. The beam incident is probative of intent in

the same manner as the prior act evidence admitted in Joe. In that case, the

defendant’s wife told a doctor that her husband raped her. Joe, 8 F.3d at

1491. When the husband was later charged with his wife’s first degree

murder, the Tenth Circuit held that the rape was properly admitted under

Rule 404(b) to prove Joe’s “intent to commit acts of violence against his wife.”

Id. at 1496. The beam incident likewise shows Harold’s malevolent intent

towards Toni.


21

CONCLUSION

The government accordingly notifies this court and the defendant that

it intends to offer evidence of the circumstances surrounding Lynn

Henthorn’s death, the life insurance that Henthorn took out on his former

sister-in-law, and the wooden beam dropped on Toni Henthorn.

DATED this 29th day of January, 2015.

Respectfully Submitted,

John F. Walsh United States Attorney s/ J. Bishop Grewell J. Bishop Grewell Suneeta Hazra Valeria Spencer Assistant United States Attorneys 1225 Seventeenth Street

Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax: (303) 454-0408 E-mail: [email protected]

Attorneys for the Government


22

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

CERTIFICATE OF SERVICE (CM/Colorado) I hereby certify that on January 29, 2015, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by

the CM/ECF system.

/s/ J. Bishop Grewell J. BISHOP GREWELL Assistant U.S. Attorney

Attorney for the Government


Documents

U.S. vs Harold Henthorn