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

Appellate Procedure: To Prevail, a Defendant Must Not Only Show Error, but Must Demonstrate the Harm Caused by Judicial Error

State v. Otterson, 2010 UT App 388 (Utah Court of Appeals December 30, 2010).

Otterson was convicted of child sodomy and child rape.  Otterson appealed arguing that (1) the State had failed to provide a bill of particulars; (2) the Court erred when it denied the Defendant’s access to the victim’s medical records; and (3) the court erred when it admitted evidence of prior bad acts without proper notice.

The Court of Appeals found that the State provided a bill of particulars with the best information it knew.  Even if the Bill lacked specificity, Defendant failed to identify how it damaged the defense.  Court of Appeals found no error in the trial court’s ruling on medical records because it properly performed an in camera review according to Defendant’s request and found no helpful information.  Defendant also failed to preserve his argument that the Court misunderstood his request, because he failed to bring any misunderstanding to the trial court’s attention.  Lastly, Defendant neither specifically identified any improperly admitted prior bad act evidence nor explained how his defense was damaged thereby.  Affirmed on all issues.

Full Decision available atState v. Otterson, 2010 UT App 388 (Utah Court of Appeals December 30, 2010).

Otterson was convicted of child sodomy and child rape.  Otterson appealed arguing that (1) the State had failed to provide a bill of particulars; (2) the Court erred when it denied the Defendant’s access to the victim’s medical records; and (3) the court erred when it admitted evidence of prior bad acts without proper notice.

The Court of Appeals found that the State provided a bill of particulars with the best information it knew.  Even if the Bill lacked specificity, Defendant failed to identify how it damaged the defense.  Court of Appeals found no error in the trial court’s ruling on medical records because it properly performed an in camera review according to Defendant’s request and found no helpful information.  Defendant also failed to preserve his argument that the Court misunderstood his request, because he failed to bring any misunderstanding to the trial court’s attention.  Lastly, Defendant neither specifically identified any improperly admitted prior bad act evidence nor explained how his defense was damaged thereby.  Affirmed on all issues.

Full Decision available at http://www.utcourts.gov/opinions/appopin/otterson123010.pdf

Prosecutorial Misconduct Alone is Insufficient for Dismissal and Past Conviction Show Current Intent

State v. Doyle, 2010 UT App 351 (Utah Court of Appeals December 9, 2010).

Doyle was convicted of possession of controlled substance.  During trial a witness denied receiving a plea deal in exchange for testimony.  On cross-examination, it was shown that the witness had in fact received a plea agreement in exchange for her testimony.  Doyle's subsequent motion to dismiss was denied.  She appealed.

The Court of Appeals, while stating that the prosecutor’s failure to correct the testimony and its failure to provide the plea deal during discovery clearly constituted prosecutorial misconduct.  However,  the misconduct did not prejudice Defendant’s case.  Indeed, the cross-examination was so effective that the witnesses failure to disclose may have proved more detrimental to the State’s case than a simple admission. The trial court was affirmed.

An additional issue on appeal was the admission of prior crimes evidence.  The Court of Appeals found that a previous conviction for possession of a controlled substance is admissible to show current “intent” to possess a controlled substance.  The trial court was affirmed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/doyle120910.pdf

Wrongfully Admitted Testimony May Have Influenced the Jury

State of Utah Leber, 2010 UT 316, (Utah Court of Appeals, November 12, 2010). This Opinion was amended and the correct site is now State of Utah Leber, 2010 UT 387 (Utah Court of Appeals December 30, 2010)

Defendant was convicted of felony child abuse. At trial, the Court admitted testimony of Defendant’s prior bad acts, including: a 10 year old conviction for child abuse, a 5 year old misdemeanor assault conviction, an incident of domestic violence, and testimony of ex-wife that Defendant had engaged in domestic violence “too many times to count,” and ex-wife’s opinion that Defendant was violent with children. Defendant appealed, and argued that the evidence should have been excluded as improper character evidence. The Court of appeals affirmed the conviction on the grounds that Defendant “opened the door” to character evidence by alleging that the alleged victim had a violent character. The Supreme Court granted cert and reversed the Court of Appeals finding that Defendant did not “open the door.” The case was remanded to decide whether the wrongfully admitted evidence affected the jury verdict.

The Court of appeals found that it could not conclude that the wrongfully admitted evidence did not affect the jury. In other words, it is likely that the testimony may have influenced the jury. Reversed and Remanded for new trial.

Full Decision available at http://www.utcourts.gov/opinions/appopin/leber123010.pdf

Unconnected Criminal Charges Must Be Severed

State of Utah v. Hildreth, 2010 UT App. 209, (Utah Court of Appeals July 29, 2010).

Hildreth convicted of two counts of forcible sexual abuse appeals based on the denial of his motion for severance of the charges. 

Charges may be charged together if the charges are based on the same conduct or are otherwise connected together in their commission, are part of a common scheme or plan, or if the court found that neither the state nor the defendant are prejudiced by joinder of the charges.  Hildreth argues that the charges were sufficiently unrelated and warranted severance.  The Court agreed and further stated that Hildreth’s charges were unrelated to one another and that the alleged actions did not take place under sufficiently similar circumstances.  As such, the convictions were overturned and the case was Reversed and Remanded for separate trials on the charges.

Additionally, the Court found that testimony as to the other charges should be excluded as improper character evidence because the likelihood of prejudice outweighs the probative value.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/hildreth072910.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

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