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01/31/90 STATE UTAH v. PHILLIP FREDERICK COX

January 31, 1990

STATE OF UTAH, PLAINTIFF AND RESPONDENT,
v.
PHILLIP FREDERICK COX, DEFENDANT AND APPELLANT



Seventh District, Emery County, The Honorable Boyd Bunnell.

Richard C. Davidson, Judge, Regnal W. Garff, Judge, concurs. Norman H. Jackson, Judge, Dissents.

The opinion of the court was delivered by: Davidson

FACTS. - A woman reported that Cox forced her to have sexual intercourse with him. After he was charged, two other women reported rapes by Cox.

RICHARD C. DAVIDSON, Judge:

Defendant Phillip Frederick Cox was convicted by a jury of rape. He argues on appeal that the trial court erred by admitting evidence of alleged prior unprosecuted sexual assaults. He also argues that the trial court should have admitted evidence concerning the victim's reputation in the community for chastity. We reverse.

In the early morning hours of July 16, 1987, defendant went to the victim's home in Ferron, Utah, and committed the alleged rape. The victim reported the incident to the Emery County Sheriff's Office later that day.

During the course of investigation, the victim reported a prior act of nonconsensual intercourse that occurred between defendant and the victim on June 26, 1987. *fn1 Later, two other women in the community reported that they were sexually assaulted by defendant in 1985. These incidents were reported to police after it was learned that charges were pending against defendant. Over defendant's objection, both women testified at trial about the 1985 incidents and the victim testified about the June 26, 1987, incident.

PRIOR BAD ACTS

Defendant first argues that the 1985 incidents were unrelated to the July 1987 rape and were introduced simply to demonstrate defendant's bad character. The State argues that the testimony of both women was properly admitted to show defendant's intent, motive, plan, or knowledge. Defendant and the State rely on Utah R. Evid. 404(b) which provides as follows:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Evidence of prior bad acts is admissible at trial provided it has "a special relevance to a controverted issue and is introduced for a purpose other than to show the defendant's preDisposition to criminality." State v. Featherson, 781 P.2d 424, 426 (Utah 1989) (quoting State v. Shickles, 760 P.2d 291, 295 (Utah 1988)). When prior bad act evidence establishes a constitutive element of the crime and is directly probative of a disputed issue it may be admissible even if it tends to prove that defendant has committed other crimes. Id. See also State v. Gotschall, 782 P.2d 459, 462-63 (Utah 1989) (admission of defendant's threatening remarks made several hours before killing relevant to show defendant's state of mind); Shickles, 760 P.2d at 295-96 (evidence of defendant's sexual assaults performed on child victim admissible in kidnapping trial when defendant had prior trusting relationship with victim's family and intent to kidnap was hotly contested issue); State v. Johnson, 748 P.2d 1069, 1075 (Utah 1987) (evidence of other forgery acts relevant and probative when defendant's identity is at issue).

Even if evidence of other crimes has relevance beyond proving mere criminal Disposition, it is still subject to the protections of Utah R. Evid. 403. Featherson, 781 P.2d at 426. Rule 403 provides in pertinent part:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....

The court must balance the probative value of such evidence against the danger of unfair prejudice. In applying the rule 403 balancing test, the court may consider such things as "the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering ...


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