Prior Bad Act Evidence Requires Shickles Evaluation Prior Sexual Crimes Evidence Requires 404(c) analysis + Shickles Evaluation

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.

Full Decision available at http://www.utcourts.gov/opinions/appopin/ferguson031711.pdf

Failing to Make Futile Objections ≠ Ineffective Assistance of Counsel

State v. C.D.L. 2011 UT App 55 (Utah Court of Appeals, February 25, 2011).

Defendant was convicted of four counts of aggravated assault with a deadly weapon.  Defendant now asserts ineffective assistance of counsel because his attorney (1) failed to request a directed verdict, (2) failed to renew objections to admissibility of the 911 transcript and (3) failed to move for a new trial.

(1) Defendant claims that a car is not a deadly weapon, and that his attorney should have moved for a directed verdict on the enhancement.  The Court of Appeals found that because the car was used in an attempt to cause serious bodily injury to another, it is a dangerous weapon.  Further, because a motion for a directed verdict would have been futile, failing to make such a motion is not ineffective assistance.

(2) Defendant argued that the 911 call was not properly authenticated hearsay.  However, the caller identified herself and witnesses who observed the events corroborated the circumstances she described, thus it was authenticated.  Further, the statements may have been hearsay evidence, but were excited utterances and thus excepted from the hearsay exclusion.  The 911 calls are greatly probative and carry little unfair prejudice, the Court did not err in admitting, neither was it ineffective assistance when counsel chose not to object.

Lastly, Defendant asserts ineffective assistance of counsel, when his attorney failed to request a new trial based on Wife’s victim impact statement in which she describes the incident as her fault and not as serious as witnesses claim.  The Court notes that wife was not present at trial and was not a witness for either party.  Because there are so many unknown s about wife, it is impossible to overcome the strong presumption in favor of effectiveness.  Affirmed on all claims.

Full Decision available at http://www.utcourts.gov/opinions/appopin/cdl022511.pdf

Gruesome Photos are Admissible to Show Intent

State v. Stapley 2011 UT App 54 (Utah Court of Appeals, February 25, 2011).

Stapley was convicted of attempted murder.  At trial, Stapley moved to suppress certain photos of the victim’s injuries, claiming that photos were irrelevant and that admission of the photos might cause unfair prejudice.  The trial court admitted the photos.  Stapley appealed.

The Court of Appeals found that the photos were relevant.  Because the charge was attempted murder, the State had the burden of demonstrating that Defendant’s intent was to kill the victim.  The photos demonstrated both the ferocity with which the victim was attacked and the many wounds inflicted by Defendant.  The Court further found that although the pictures were indeed gruesome, and presumed prejudicial, the photos had unusual probative value.  In other words, because Defendant put forth the claim that he did not intend to kill the victim, the pictures provided proof of his intent to kill.  The pictures demonstrated that the injuries were not accidental, and such evidence of intent outweighed the possibility of unfair prejudice. Affrimed

Full Decision available at  http://www.utcourts.gov/opinions/appopin/stapley022511.pdf

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