3 Step Process for Admitting Evidence of Prior Bad Acts Under URE 404(b)

Utah v. Brown, 2010 UT App. 48, (Utah Court of Appeals, February 25, 2010).

Brown was convicted of Retail Theft.  During the trial, the state offered evidence of prior theft under URE 404(b) to show Brown’s intent, plan, and lack or mistake or accident.  Brown appealed and claimed the trial court should not have admitted the prior theft.  For prior bad act evidence to be admissible there are three requirements.  First, the evidence must be for a non-character purpose (see list in URE 404(b)).  Second, if the purpose is proper, it must also be relevant under URE 402.  Third, the evidence probative value must outweigh the risk of unfair prejudice to the defendant under URE 403.  To make this final determination the trial court must consider several factors including the strength of the evidence as to the commission of the other crime, similarities between the crimes, the interval of time that has elapsed between crimes, the need for the evidence, efficacy of alternative proof, and whether evidence would rouse the jury to overmastering hostility.

Based on this analysis, the Court affirmed the trial court finding that the evidence demonstrated Brown’s intent, plan, or absence of accident or mistake; the Court made this finding because of the remarkable factual similarity between the charged offense and the prior theft.

Full Decision available at http://www.utcourts.gov/opinions/mds/brown022510.pdf

Consent Must be Voluntary and Willing

Utah v. Tripp, 2010 UT 9, (Utah Supreme Court, February 19, 2010).

Tripp collided with a motorcyclist.  Police smelled no alcohol on her breath.  As was routine, police asked Tripp for a blood sample.  She refused.  Backup and a victim’s advocate arrived.  At various times, the officers requested a blood sample.  No officer identified probable cause to take a sample.  Tripp consistently refused.  When family members intervened and told her not to answer the officers’ questions, they arrested Tripp and isolated her in the back of a patrol car.  While there, police assigned a victim’s advocate “to help [Tripp] become more relaxed with the blood draw.”  The advocate complied.  Tripp still refused the blood draw.  The technician told her “let me put on this tourniquet, see if we can find a spot.”  Tripp extended her arm, the technician put the tourniquet on, and blood was drawn.

Tripp moved, and the court refused, to suppress the blood evidence.  Tripp, convicted, appealed.  The court of appeals reversed, and the State sought certiorari.  The Supreme Court found Tripp’s consent to be involuntary, and as such, affirmed the reversal.  The consent was not voluntary because police coercion worked to overcome Tripp’s refusal.  The acts of coercion were (1) various officers requesting the sample, (2) the assistance of the Victim Advocate to get the sample, and (3) the technician’s failure to warn Tripp before the draw, and (4) Tripp’s illegal arrest isolated her.  For all these reasons, the Court found it appropriate to suppress the blood evidence. 

In addition, the Court found that there was no probable cause and there was no exigent circumstance sufficient to warrant the police actions.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Tripp021910.pdf

If There is Any Rational Basis for Counsel’s Actions Then He is Not Ineffective

Utah v. Pedersen, 2010 UT App. 38, (Utah Court of Appeals, February 19, 2010).

Pedersen was charged and convicted of two counts of sexual assault.  He appealed.  He argued that his counsel was ineffective for failing to make several motions.  The Court affirmed that each missed motion could have been a tactical basis for each decision, and therefore there was a rational basis for the actions taken by counsel.  Further, the Court of appeals affirmed that there was no showing of actual prejudice as a result of counsel’s actions.  Next, Defendant challenged the trial court decision allowing testimony of another alleged victim because it is a prior bad act and therefore improper character evidence.  However, the Court of Appeals affirmed the trial court, finding the testimony to be appropriate evidence for a non-character purpose to show absence of mistake and intent.

Full Decision available at http://www.utcourts.gov/opinions/appopin/pedersen021910.pdf 

Not Guilty Plea Contests All Elements of the Crime, Allowing the State to Introduce Any Relevant Evidence to Prove Their Case

Utah v. Verde, 2010 UT 30, (Utah Court of Appeals, February 11, 2010).

In Defendant’s trial, the trial court admitted testimony of three boys who each made similar allegations that Defendant attempted to engage them in a sexual encounter.  Defendant objected to the evidence as improper character evidence.  State argued that the evidence proved Defendant's intent.  Defendant argued that he had not put his intent at issue.  The Court found that when pleading not guilty, Defendant puts all elements at issue, including intent.  The objection was overruled and Defendant appealed.

The Court of appeals affirmed the trial court finding that the before admitting character evidence, the trial court must complete three step evaluation of the evidence: (1) the evidence must have a non-character purpose (in this place intent); (2) it must be relevant; and (3) its probative value must outweigh the prejudicial effect.  The Court found that in this matter the evidence was relevant and admissible and the trial court did not err in so finding.

Concurrence: The admission of the evidence to prove intent should not solely be based on the plea of not guilty.  In this case, Defendant claimed that the primary victim made up the entire allegation.  However, the testimony in question was offered to support the testimony of the victim and this is additionally grounds for its admittance. 

Full Decision available at http://www.utcourts.gov/opinions/appopin/verde021110.pdf

Self Pat-Down = Consent-Search

State v. Hurt, 2010 UT 33, (Utah Court of Appeals, February 11, 2010).

Defendant was a passenger in a car during a traffic stop.  Police arrested Driver.  Officer asked Defendant to step out of the vehicle.  Defendant stepped out of the vehicle.  Officer asked Defendant if he had any weapons and asked him to turn out his pockets.  From his pockets, Defendant produced an eyeglass case.  Officer asked Defendant to open the eyeglass case, he did so and revealed methamphetamine.  Defendant was charged with possession of a controlled substance.  Defendant moved to suppress the evidence.  The trial court found that this was a consent-search.  Defendant Appealed.

The Court of Appeals Affirmed the trial court finding that the police legally detained Defendant, and that the search conducted on Defendant was a consent-search.  The Court found that a command can be a search, but the determination turns on the evaluation of the facts in each case.  (See State v. Bisner, goes more toward voluntariness of consent, but applicable to evaluate whether the command invades voluntariness).  In this case, the command did not rise to the level necessary to overcome the presumption of consent.

Concurrence, Judge Davis: Defendant did not adequately address the facts surrounding the consent in the brief.  The facts are too limited to rule in Defendant’s favor.  Judge Davis also recommends that police inform individuals of their right to refuse consent.

Full Decision available at http://www.utcourts.gov/opinions/appopin/hurt021110.pdf

On a Petition for Factual Innocence Statutory Requirements May Be Waived in the Interest of Justice

Miller v. State of Utah, 2010 UT App. 25, (Utah Court of Appeals, February 4, 2010).

Miller was convicted of committing an armed robbery.  He appealed based an ineffective assistance because his counsel failed to procure witnesses to corroborate his alibi.  The trial court found that Miller was not prejudiced and upheld the conviction and returned the case to the Court of Appeals.  Prior to oral argument, the parties stipulated to a summary reversal.  The Prosecutor then dismissed the charges against Miller.

Miller then filed his Petition for a Finding of Factual Innocence.  The State moved for Summary Judgment claiming that Miller had failed to meet the statutory requirements.  The trial court granted Summary Judgment.  Miller Appealed.

The Court of Appeals Reversed and Remanded, finding that there is at least a bona fide issue as to Miller innocence.  UCA § 78B-9-402(6)(b).  The bona fide issue comes from the testimony that Miller suffered a stroke and a nurse checked on him weekly to aid his recovery.  Based on the notes from the nurse, Miller would have had less than 24 hours to get to Utah and commit a physically violent crime on a complete stranger.  The nurse’s notes describe that Miller could only ride in a car driven by another OR able to use a bus or handicap van only with assistance.

Full Decision available at   http://www.utcourts.gov/opinions/appopin/miller921_AMD020410.pdf

Not Hearsay if Not for the Truth, & Irrelevant Evidence is Not Admissible

SLC v. Denier, 2010 UT App. 24, (Utah Court of Appeals, February 4, 2010).

Denier violated a Protective Order by leaving a message for the Petitioner.  He was charged and convicted of violating the Protective Order.  He appealed. 

Denier argued that the message left for the Petitioner was inadmissible hearsay.  In the message, Denier indicated that he knew his message was being recorded and that in all previous complaints he had been found innocent.  The Court of Appeals affirmed the trial court, finding the truth of the statements left in the message as unimportant.  The issue was whether Denier left the message.

Denier next objected the trial court findings that testimony regarding the visitation order was irrelevant.  The Court of Appeals affirmed that the custody agreement would have little bearing as to whether a message left was a violation of the Protective Order.  In part, this was due to Denier failing to describe or proffer the visitation order.

Full Decision available at http://www.utcourts.gov/opinions/mds/denier020410.pdf