In State v. Rackham, 2016 UT App. 167, Defendant appealed his conviction for one count of MA Sexual Battery. Defendant claimed the trial court abused its discretion by admitting evidence of prior bad acts under Utah Rule of Evidence 404(b).
KM, 16, alleged that Defendant approached her from behind, said "wee" in her ear and touched her stomach. KM pushed Defendant away. Defendant then put his hand under her shirt and brushed it against her breast over KM's bra. KM pushed defendant away and told him to not touch her. In previous encounters, KM claimed defendant had tickled her and a friend and grabbed at their butts. At that time, KM also told defendant to stop touching her. When confronted by KM's father, Defendant denied intentionally touching KM's breast and said he was just trying to get her to warm up to him.
Shortly after this occurred, TM (8) claimed defendant approached her from behind, whispered her name, and rubbed her stomach over her shirt. TM told defendant to stop.
KM's reported the conduct to family members and learned the following:
MF reported that in 2001, when she was 8, Defendant rubbed her chest and genitals over her clothing.
KR reported that from 1997-2005, from the ages of 7-15, Defendant touched her multiple times on the breast and genitals, above and under her clothing. Defendant pleaded no contest to sexual battery for this conduct.
Defendant was charged with sexual battery for intentionally touching KM's breast under circumstances he knew or should have known would likely cause affront or alarm. The State filed a Motion in Limine to admit evidence of prior bad conduct to show Defendant: 1) had knowledge that his touching would cause affront or alarm; 2) to rebut testimony that KM fabricated the touching under the Doctrine of Chances. The trial court admitted the evidence solely for the basis of knowledge. Defendant was found guilty after a two day trial.
A trial court's decision to admit evidence is reviewed for an abuse of discretion. Even if evidence should not have been admitted, the decision will not be reversed unless prejudice can be shown. When admitting prior bad acts as evidence, the Court applies a three part inquiry: 1) was the evidence offered for a proper, non-character purpose; 2) is the evidence prevalent to the non-character purpose; and 3) is the probative value of the evidence substantially outweighed by the danger of unfair prejudice.
The evidence in the present case was offered for a proper non-character purpose. Defendant did not concede or stipulate to the knowledge element of the crime. Therefore, evidence that addressed intent is proper.
Some of the evidence in the present case was relevant to the issue to knowledge. Evidence that has even the slightest probative value is relevant. Past conduct showing young cousins and nieces were alarmed or affronted by Defendant's touching is admissible. However, TM's accusations occurred after the events in the present case and are therefore not relevant to the issue of knowledge.
The probative value of the evidence is substantially outweighed by the danger of unfair prejudice (See Utah Rule of Evidence 403.) Some factors the Court looks at to make this determination are: the strength of evidence of commission of the other crime; the lapse of time between incidents; the need for evidence; the efficacy of alternative proof; and the degree to which the evidence will inflame the jury.
In the present case, the evidence has probative value: there is evidence that Defendant's prior conduct caused his young relatives alarm or affront. However, the lack of similarity between the acts undermines the probative value. There is both a significant difference in age of the victims and gravity of the touching alleged from the this case and the prior acts. The more intimate touching of younger girls could improperly influence the jury.
There was also no strong need for the evidence. KM's own testimony was ample evidence of what transpired on the day in question and any prior times she told Defendant to stop touching her.
Finally, there was a likelihood of a more favorable outcome if the evidence had been excluded. The evidence improperly bolstered KM's testimony and made it more than the credibility of the two main witnesses. The testimony of the prior bad acts took a a great deal of the 2 day trial in relation to KM's testimony. Therefore, the likelihood of a different outcome if sufficiently high to undermine the confidence in the verdict,
Defendant's conviction was vacated and the case remanded for a new trial.
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