State v. Verde (2012)

He also argued that State v. Verde, 2012 UT 60 , 296 P.3d 673 , abrogated by State v. Thornton, 2017 UT 9 , 391 P.3d 106 , articulated a new legal standard for admitting prior-act evidence under 2 Utah Rule of Evidence 404(b)2 that should apply to his case.

See State v. Lucero, 2014 UT 15, ¶ 36 , 328 P.3d 841 (quoting Verde, 2012 UT 60, ¶ 13 ), abrogated by State v. Thornton, 2017 UT 9 , 391 P.3d 1016 .

Earlier decisions from the Utah Supreme Court required that, in situations where other-acts evidence sustains both proper and improper inferences, courts "should balance [proper and improper inferences] against each other under rule 403, excluding the bad acts evidence if its tendency to sustain a proper inference is outweighed by its propensity for an improper inference or for jury confusion about its real purpose." See State v. Verde , 2012 UT 60 , ¶ 18, 296 P.3d 673 , abr…

See, e.g. , State v. Verde , 2012 UT 60 , ¶ 17, 296 P.3d 673 (holding that evidence aiming to establish propensity should be excluded despite a "proffered (but unpersuasive) legitimate purpose"), abrogated by Thornton , 2017 UT 9 , 391 P.3d 1016 .

At root, the Doctrine is simply “probability reasoning.” Verde, 2012 UT 60, ¶¶ 50, 53 ; cf. Hopt v. People, 120 U.S. 430, 440 (1887) (referring to the “doctrine of chances” as a tool used to “establish a probability”). 20160930-CA 17 2019 UT App 86 State v. Lane ¶39 Because the Doctrine is a probability-based construct, it has been widely applied to admit prior bad acts evidence in cases in which the accused’s defense is that the allegedly criminal act in question occurred b…

Rule 408 states, "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." 125 Evidence that is "genuinely being offered for a proper, non-character purpose" may also carry "a risk of an undue inference that the defendant committed each act because of the defendant…

"Evidence that is 'genuinely being offered for a proper, non-character purpose' may also carry 'a risk of an undue inference that the defendant committed each act because of the defendant's immoral character'" State v. Labrum, 2014 UT App 5, ¶ 25 , 318 P.3d 1151 (quoting Verde, 2012 UT 60, ¶¶ 18, 51 , 2096 P.3d 673 ); see also State v. Lucero, 2014 UT 15, ¶32 , 328 P.3d 841 (requiring that "the probative value of the evidence ... be substantially outweighed by the danger of …

The other incidents need only “be roughly similar to the charged crime.” Verde, 2012 UT 60, ¶ 58 (emphasis in original).

State v. Lucero, 2014 UT 15, ¶ 36 , 328 P.3d 841 (quoting Verde, 2012 UT 60, ¶¶ 22, 55 ).

Verde, 2012 UT 60, ¶ 22 (quotation simplified).

But after this court announced the doctrine of chances, the State filed a supplemental brief in support of its initial rule 404(b) motion to seek admission of the witnesses’ testimony under the doctrine of chances to prove lack of consent. 9 Verde, 2012 UT 60, ¶ 47 (citation omitted). 10 Id. ¶¶ 57–61. 11 State v. Shickles, 760 P.2d 291 , 295–96 (Utah 1988) (citation omitted).

The doctrine is “a theory of logical relevance that rests on the objective improbability of the same rare misfortune befalling one individual over and over.” Verde, 2012 UT 60, ¶ 47 (cleaned up).

But after this court announced the doctrine of chances, the State filed a supplemental brief in support of its initial rule 404(b) motion to seek admission of the witnesses’ testimony under the doctrine of chances to prove lack of consent. 9 Verde, 2012 UT 60, ¶ 47 (citation omitted). 10 Id. ¶¶ 57–61. 6 Cite as: 2017 UT 55 Opinion of the Court evidence probably will rouse the jury to overmastering hostility.11 Relying solely on these factors, the court concluded that “even t…

It is unlikely that Victim and Mother would have invented conduct that turned out to be so similar to Richins’s earlier episodes. 4 ¶27 Third, as to frequency, “the defendant must have been accused of the crime or suffered an unusual loss more frequently than the typical person endures such losses accidentally.” Verde, 2012 UT 60, ¶ 61 (quotation simplified).

We need not resolve whether such application would be proper because the doctrine is inapplicable to the set of facts presented here. ¶ 50 The doctrine of chances is “a theory of logical relevance that ‘rests on the objective improbability of the same rare misfortunate befalling one individual over and over.’” Verde, 2012 UT 60, ¶ 47 (citation omitted); See also Edward J.

Mr. Green asks us to “overturn [our] holdings in State v. Verde . . . about the admissibility of evidence under the _____________________________________________________________ 17 Id. at 237. 18 Verde, 2012 UT 60, ¶ 47 (cleaned up). 19 See id. (explaining that the “doctrine defines circumstances where prior bad acts can properly be used to rebut a charge of fabrication”). 20 State v. Richins, 2021 UT 50, ¶ 56 , 496 P.3d 158 . 21 State v. Lowther, 2017 UT 34, ¶ 21 , 398 P.3d…

It is this infrequency that justifies the probability analysis underlying the doctrine of chances.” Verde, 2012 UT 60, ¶ 61 (emphasis omitted) (citation omitted) (internal quotation marks omitted).

See infra ¶¶ 79, 81. ¶71 And third, because the trial court did not consider the “context” argument, it had no opportunity to undertake the analysis required by our supreme court in Verde, and assess whether the evidence at issue “is genuinely being offered for a proper, non-character purpose, or whether it might actually be aimed at sustaining an improper inference of action in conformity with a person’s bad character.” See 2012 UT 60, ¶ 18 .

Compare State v. Low, 2008 UT 58, ¶ 61 , 192 P.3d 867 (exercising our discretion to provide guidance), with State v. Verde, 2012 UT 60, ¶ 62 , 296 P.3d 673 (deferring to the trial court's "superior position" in matters of evidence and withholding guidance).

See Hildreth, 2010 UT App 209, ¶ 44 (“[C]umulative prior bad acts evidence may have the tendency to suggest a verdict on an improper, emotional basis.”). ¶39 Finally—and perhaps most indicative of the State’s objective in pursuing joinder and most damaging to the proposition that evidence of each count would be admissible at separate trials—we note that the manner in which the State connected the three allegations during closing argument, see infra ¶ 41, certainly suggests t…

See also State v. Verde, 2012 UT 60, ¶ 28 , 296 P.3d 673 (“[T]he prosecution retains wide discretion to reject [stipulations.]”), abrogated on other grounds by State v. Thornton, 2017 UT 9 , 391 P.3d 1016 ; State v. Johnson, 2016 UT App 223, ¶ 37 , 387 P.3d 1048 (“[S]tipulating to a fact does not cut off the State’s right to present evidence depicting the context of that fact.”).

See State v. Verde, 2012 UT 60 , ¶¶ 25–27, 296 P.3d 673 (holding that the State could not use rule 404(b) evidence for the purpose of proving “intent” because the defendant did not contest intent at trial and offered to stipulate to intent), abrogated on other grounds by Thornton, 2017 UT 9 .

See State v. Verde , 2012 UT 60 , ¶ 30, 296 P.3d 673 (holding that, although the state was free to reject a proposed stipulation, its rejection had "probative implications" and reinforced "the conclusion that the prosecution's purpose was not to tell a legitimate narrative to the jury but instead to present an improper one"), abrogated on other grounds by State v. Thornton , 2017 UT 9 , 391 P.3d 1016 .

See State v. Verde, 2012 UT 60, ¶ 28 , 296 P.3d 673 (explaining that the State “retains wide discretion to reject” a defendant’s offer to stipulate in lieu of presenting evidence to a jury “to preserve the right to present evidence with broad ‘narrative value’ beyond the establishment of particular elements of a crime”); see also Old Chief v. United States, 619 U.S. 172 , 189, 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997) (“People who hear a story interrupted by gaps of abstraction…

See State v. Verde, 2012 UT 60, ¶13 , 296 P.3d 673 .

See, e.g., State v. Verde, 2012 UT 60, ¶ 13 , 296 P.3d 673 ("A trial court's admission of prior bad acts evidence is reviewed for abuse of discretion, but the evidence must be serupu-lously examined by trial judges in the proper exercise of that discretion." (citation and internal quotation marks omitted)). 135 The parties do not dispute that the evidence the State introduced constitutes "crime[s], wrong{s], or other act[s]" governed by rule 404(b).

See State v. Verde, 2012 UT 60, ¶ 13 , 296 P.3d 673 .

See State v. Verde, 2012 UT 60, ¶ 13 , 296 P.3d 673 .

In Labrum, we noted that the Utah Supreme Court appears to have collapsed the traditional three-step test into two steps in State v. Verde, 2012 UT 60 , 296 P.3d 673 , wherein the supreme court "considered the relevance of the other acts evidence as to an analysis of the first and third parts of the traditional test and did not address it as a separate step of the analytical framework." Labrum, 2014 UT App 5, 119 , 318 P.8d 1151; see also Verde, 2012 UT 60 , 1% 14-18, 26, 40…

See Verde, 2012 UT 60 , 1% 24-26, 296 P.3d 673 (discussing the consequence of a stipulation on the admission of prior acts evidence, even though intent was clearly at issue). 21 .

See Decorso, 1999 UT 57, ¶ 27 , 993 P.2d 837 (stating that “the evidence was offered for a proper, noncharacter purpose— i.e., to establish the identity of [the] killer,” that “[i]dentity was the crux of [the] case,” and that there were “numerous similarities between the crimes”). ¶ 26 Based on our review of the record, it is clear that the trial court “scrupulously examined” the 404(b) evidence in the “proper exercise of [its] discretion.” See Verde, 2012 UT 60, ¶ 13 , 296 …

See State v. Verde, 2012 UT 60, ¶ 47 , 296 P.3d 673 ("[Elvidence of prior misconduct can be relevant under the so-called 'doctrine of chances." _...

See State v. Verde, 2012 UT 60, ¶ 47 , 296 P.3d 673 ("In some circumstances, evidence of prior misconduct can be relevant under the so-called 'doctrine of chances.’ This doctrine defines circumstances where prior bad acts can properly be used to rebut a charge of fabrication.

See generally State v. Verde, 2012 UT 60, ¶ 46 , 296 P.3d 673 (providing guidance to the trial court on remand). ¶ 47 The City argues that the level of discipline imposed on Gillespie was consistent with the discipline imposed on other officers guilty of dishonesty.

See Verde, 2012 UT 60 , {15, 296.

R. 408; see also State v. Verde, 2012 UT 60, ¶¶ 17-18 , 296 P.3d 678 (holding that rule 408 assessment "is essential to preserve the integrity of rule 404(b)"); State v. Ferguson, 2011 UT App 77 , ¶ 15 n. 4, 250 P.3d 89 (holding that evidence may come in under rule 404(c) only after an analysis under rule 403).