Utah v. Ferguson, 2011 UT App 77 (Utah Court of Appeals, March 17, 2011).
Ferguson was convicted of child sex abuse. Ferguson appealed arguing that his prior bad act evidence should not have been admitted. The Court of Appeals found that when reviewing the admission of prior bad act evidence the trial court must consider the Shickles factors: (1) strength of the evidence, (2) similarities between crimes, (3) interval of time between crimes, (4) the need for the evidence, (5) the efficacy of alternate proof, and (5) the degree to which the evidence probably will rouse the jury to overmastering hostility.
After considering ALL five factors, the trial court must also consider whether the probative value outweighs the possibility of unfair prejudice. Additionally, in cases like this, where the State intends to present evidence of similar child molestation crimes, the trial court must additionally find that (1) the crime would be a sexual offense if committed in Utah, (2) that the evidence tends to prove the accused’s propensity to commit the crime charged and (3) whether it passes the balancing test. See Rule 404(c) of Utah Rules of Evidence
In this case, the trial court failed to conduct the 404(c) test along with the accompanying balancing test. As such, the trial court erred in failing to conduct the test. However, because of the overwhelming evidence against Defendant, it was harmless err.
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