State v. Fredrick , 2019 UT App 152 ( 2019 )

2019 UT App 152THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
BLANE SCOTT FREDRICK,
Appellant.
Opinion
No. 20180441-CA
Filed September 19, 2019
Fifth District Court, Cedar City Department
The Honorable Keith C. Barnes
The Honorable G. Rand Beacham
No. 131500581
Jonathan T. Nish, B. Kent Morgan, and R. Spencer
Robinson, Attorneys for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN FORSTER concurred.
JUDGE DAVID N. MORTENSEN concurred, with opinion.
HARRIS, Judge:
¶1 A jury convicted Blane Scott Fredrick of two counts of
aggravated sexual abuse of a child, and he now appeals,
asserting that the trial court improperly allowed various items of
evidence to be introduced during his trial. We find no merit in
Fredrick’s arguments, and therefore affirm his convictions.
State v. Fredrick
BACKGROUND 1
¶2 When K.R. was approximately one year old, her parents
determined that they needed to find a long-term day care option.
K.R.’s parents knew and trusted Fredrick and his wife, as they
were neighbors and attended the same church. Fredrick and his
wife were also out of work at the time, and K.R.’s parents
thought the Fredricks could use the extra money. For these
reasons, K.R.’s parents hired Fredrick and his wife, who
provided day care services for K.R. for the next eight years.
¶3 Both Fredrick and his wife shared day care duties, but
over time Fredrick became the primary caregiver for K.R. Before
K.R. was of school age, her mother would drop her off at
Fredrick’s house in the morning and pick her up in the evenings;
once K.R. was old enough to attend school, K.R.’s mother would
drop her off at school and Fredrick would pick her up from
school and attend to her until her mother came to pick her up at
Fredrick’s house. Over the years, K.R. came to view Fredrick as a
“second father,” often referring to him as “Daddy Blane.”
¶4 One evening, when K.R. was nine years old, she reported
to her mother that “Daddy Blane has touched me in my
privates.” Her mother, who was training to be a clinical
therapist, instructed K.R. to “go and get her doll” and
demonstrate on the doll how Fredrick had touched her. K.R.
proceeded to “set the doll on her lap” and “put her arm around
the doll and put her hand in between the doll’s legs.” K.R.
explained that this “happened quite often,” and that it occurred
in the basement while she and Fredrick watched cartoons
together. The next morning, K.R.’s mother contacted Child
1. Fredrick “is appealing from a jury verdict; thus we recite the
facts in a light most favorable to the jury’s verdict, but present
conflicting evidence to the extent necessary to clarify the issues
raised on appeal.” State v. Garcia-Mejia, 2017 UT App 129, ¶ 2,
402 P.3d 82 (quotation simplified).
20180441-CA 2 2019 UT App 152State v. Fredrick
Protective Services (CPS), which scheduled an interview for K.R.
at the Children’s Justice Center (CJC Interview).
¶5 The CJC Interview occurred a few weeks later, and was
conducted by a police detective (Detective). During the
interview, K.R. told Detective that, while Fredrick was taking
care of her after school, they would go downstairs to the
basement together to watch cartoons. K.R. reported that she
“would sit on [Fredrick’s] lap and then he would put his hand
down [her] pants and just play around with [her] private spot”
with his eyes closed. Although this made her feel “anxious,”
“nervous and scared,” K.R. did not tell Fredrick to stop because
she “didn’t really want to hurt his feelings.” She explained that
similar touching had occurred every “two to three weeks”
beginning when she was around seven years old.
¶6 Two days after his interview with K.R., Detective went to
Fredrick’s house, knocked on the door, and introduced himself
to Fredrick. He explained to Fredrick that he wanted to talk to
him about “an important issue”—although he did not specify
what the issue was—and asked him to come to the police station.
Without asking any questions, Fredrick agreed to do so, and a
few minutes later drove himself in his own vehicle to the station.
¶7 After he arrived at the police station, Fredrick was
ushered into a small interview room containing a table and two
chairs; because no one else was in the room at the time, Fredrick
chose which chair he wanted to sit in. Fredrick was allowed to
maintain possession of his personal effects, including his phone,
wallet, and keys, and was not restrained (e.g., handcuffed) in
any way. A few minutes later, Detective entered the room and
sat in the only remaining chair, which happened to be the one
closer to the door. Detective shut the door behind him, but did
not lock it. Detective was dressed in a police polo shirt and dark
pants, rather than a full police uniform; no sidearm or weapon
was readily apparent on Detective’s person, and at no point did
Detective display a gun or weapon.
20180441-CA 3 2019 UT App 152State v. Fredrick
¶8 Detective began the interview by expressly advising
Fredrick that he was “not under arrest” and that he had certain
rights, including the right to “stop answering questions” at “any
time during questioning.” Detective attempted to inform
Fredrick of his Miranda 2 rights, but did not include the warning
that any statements Fredrick might make could be used against
him in court. Fredrick responded by stating that he “wish[ed] to
waive” his rights so that he could talk with Detective.
¶9 After some initial pleasantries and background inquiries,
Detective asked Fredrick about K.R. At first, Fredrick told
Detective that there had been no inappropriate physical contact,
but as the interview progressed Fredrick admitted “a little bit at
a time” that there had been some touching. First, Fredrick
explained that, at K.R.’s request, he would tickle her back, arms,
and stomach while they watched television. Next, Fredrick
stated that, one day as he was tickling K.R.’s stomach, he
realized that he had “touched the top of her panties.” Finally,
Fredrick admitted that while he was tickling K.R.’s stomach his
hand “went under her panties and touched her vagina.” Fredrick
maintained that this had occurred only once, and he denied any
other inappropriate touching. Detective was not convinced by
Fredrick’s denial of additional touching, and at the conclusion of
the two-hour interview he informed Fredrick that he was now
under arrest. At that point, Detective took custody of Fredrick’s
personal effects and detained him.
¶10 The State later charged Fredrick with two first-degree
felony counts of aggravated sexual abuse of a child, with the
aggravator being Fredrick’s position of special trust in relation to
K.R. As the case proceeded toward trial, local law enforcement
officials learned that the Utah Attorney General’s Office, in
connection with a separate investigation, had discovered a series
of emails and other online correspondence between Fredrick and
another individual related to previous acts of child molestation
2. See Miranda v. Arizona, 384 U.S. 436, 479 (1966).
20180441-CA 4 2019 UT App 152State v. Fredrick
and their shared sexual interest in children. The State
subsequently filed a notice of intent to introduce some of this
evidence (Electronic Evidence) at Fredrick’s trial.
¶11 Fredrick then filed several motions to exclude evidence.
First, Fredrick objected to the State’s attempt to introduce the
CJC Interview at trial. In the objection, Fredrick argued that the
CJC Interview was inadmissible under both rule 15.5 of the Utah
Rules of Criminal Procedure and rule 807 of the Utah Rules of
Evidence. Specifically, he asserted that admission under rule 15.5
was improper because the “interview is not reliable and
trustworthy” due to Detective’s allegedly inadequate or flawed
questioning and K.R.’s allegedly vague and confusing responses
to some of Detective’s questions. At some point during the first
day of trial, the court overruled Fredrick’s objection to admission
of the CJC Interview, including his specific objection regarding
reliability under rule 15.5, but the record submitted to us on
appeal does not contain any transcript of the trial court’s ruling. 3
¶12 Second, Fredrick moved to suppress all evidence arising
from his police interview on the ground that he was subjected to
custodial interrogation without proper Miranda warnings. The
3. We know the trial court made this ruling because Fredrick, in
a motion for a new trial filed after the jury’s verdict, stated
specifically that, “[o]n or about [the first day of trial], the Court
[found] that the CJC Interview did not lack reliability [or]
trustworthiness, and pursuant to Rule 15.5 of the Utah Rules of
Criminal Procedure, the CJC Interview would be allowed to be
played during the trial.” And a few weeks later, at Fredrick’s
sentencing hearing, his attorney stated in open court that “Your
Honor did make a ruling that [the CJC Interview] was inherently
reliable and trustworthy.” Thus, we are in the unusual position
of being quite certain that the trial court made a specific ruling
on Fredrick’s rule 15.5 objection even though we do not have a
record of that ruling.
20180441-CA 5 2019 UT App 152State v. Fredrick
trial court denied this motion, determining that Fredrick was not
in custody when he admitted to touching K.R.
¶13 Third, Fredrick filed a motion in limine to exclude the
Electronic Evidence discovered by the Attorney General, arguing
that the evidence should be excluded pursuant to rule 403 of the
Utah Rules of Evidence. Specifically, he asserted that the
Electronic Evidence had “little to no direct relevance” to the
current charges; its “vulgar and repulsive” nature would “shock
a jury and breed an emotional response where [it would] want to
punish” Fredrick; and “any probative value . . . [was]
substantially and overwhelmingly outweighed by the risk of
unfair prejudice.” Fredrick asked the court to exclude all of the
Electronic Evidence, and made no argument that some of the
evidence might be partially admissible through redactions or
limitations. After oral argument, the trial court partially granted
Fredrick’s motion by excluding six pieces of evidence that the
State sought to introduce, but denied Fredrick’s motion with
regard to fourteen other pieces of evidence, ruling that this
evidence was admissible under rules 404(b)(2) and 404(c) of the
Utah Rules of Evidence, and that its probative value was not
substantially outweighed by the risk of unfair prejudice.
¶14 K.R. turned fourteen just a few weeks prior to Fredrick’s
trial. At trial, the court allowed the State to present the CJC
Interview and Fredrick’s confession to the jury. In addition, the
State presented seven (of the fourteen allowable) pieces of
Electronic Evidence to the jury, at least one of which had been
admitted solely pursuant to rule 404(c). After hearing this and
other evidence, the jury convicted Fredrick on both counts.
¶15 After the verdict, Fredrick filed a motion to arrest
judgment and for a new trial on the ground that the CJC
Interview should not have been played for the jury because K.R.
was not under the age of fourteen at the time of Fredrick’s trial.
The trial court denied the motion, and later sentenced Fredrick
to prison terms of fifteen years to life on each of the counts, with
the sentences to run concurrently.
20180441-CA 6 2019 UT App 152State v. Fredrick
ISSUES AND STANDARDS OF REVIEW
¶16 Fredrick appeals his convictions, and asserts that the trial
court erroneously admitted three categories of evidence. First, he
contends that the trial court erred in admitting the recorded CJC
Interview. “Whether the trial court correctly admitted the [CJC
Interview] into evidence pursuant to rule 15.5 is a question of
law that we review for correctness.” State v. Cruz, 2016 UT App
234, ¶ 16, 387 P.3d 618.
¶17 Second, Fredrick contends that the trial court erred in
admitting his recorded police interview. Fredrick asserts that the
interview was not admissible because it was taken during a
custodial interrogation for which he received only partial
Miranda warnings. “We review a trial court’s determination of
custodial interrogation for Miranda purposes for correctness.”
State v. Fullerton, 2018 UT 49, ¶ 12, 428 P.3d 1052.
¶18 Third, Fredrick contends that the trial court erred in
allowing the State to use certain pieces of Electronic Evidence.
“We afford [trial] courts a great deal of discretion in determining
whether to admit or exclude evidence and will not overturn an
evidentiary ruling absent an abuse of discretion. But whether the
[trial] court applied the proper legal standard in assessing the
admissibility of that evidence is a question of law that we review
for correctness.” State v. Cuttler, 2015 UT 95, ¶ 12, 367 P.3d 981(quotation simplified).
ANALYSIS
I. CJC Interview
¶19 Fredrick contends, for two reasons, that the trial court’s
admission of the CJC Interview was improper. First, he asserts
that, because K.R. was fourteen years old at the time of trial, her
recorded statement—given five years earlier, when she was
nine—cannot be admitted under rule 15.5 of the Utah Rules of
20180441-CA 7 2019 UT App 152State v. Fredrick
Criminal Procedure. Second, he contends that the trial court
failed to make a sufficiently detailed ruling on his objection that
the CJC Interview was not reliable enough to justify admission.
We reject both arguments.
A
¶20 Fredrick’s first argument is unpreserved. Fredrick
correctly points out that he lodged a timely pretrial objection to
admission of the CJC Interview, but he overlooks the fact that
this objection did not include any argument related to K.R.’s age.
In that pretrial objection, Fredrick made two arguments against
admission of the CJC Interview: (1) the interview was not
sufficiently reliable and trustworthy and that its admission was
not in the interest of justice, as those terms are used in rule
15.5(a)(8) of the Utah Rules of Criminal Procedure; and (2) the
CJC Interview should not be admitted pursuant to rule 807 of the
Utah Rules of Evidence. Fredrick raised no argument that the
CJC Interview should not be played for the jury because K.R.
would be fourteen years old at the time of trial; indeed,
Fredrick’s counsel later acknowledged that, at the time he filed
the objection, he did not realize that K.R. had just turned
fourteen, and that he did not become aware of K.R.’s age at trial
until K.R. herself testified—at trial, right after the CJC Interview
had been played for the jury—that she had just turned fourteen.
¶21 Fredrick did raise this issue in a post-trial motion. But this
is insufficient to preserve the issue, where Fredrick became
aware of K.R.’s age—and, by extension, the basis for an objection
on this issue—during trial. Our supreme court has explained
that raising an objection that could have been raised at trial for
the first time in a post-trial motion is insufficient to preserve the
issue for appellate review, because doing so deprives the trial
court of “an opportunity to address the claimed error, and if
appropriate, correct it.” State v. Fullerton, 2018 UT 49, ¶ 49 n.15,
428 P.3d 1052 (quotation simplified); see also Patterson v.
Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828 (noting that “the
preservation rule furthers judicial economy” and “avoids
20180441-CA 8 2019 UT App 152State v. Fredrick
unnecessary appeals and retrials” by requiring parties “to raise
an issue or argument in the trial court” so that the trial court has
“an opportunity to address the claimed error” in time to correct
it, if appropriate (quotation simplified)). In such a situation, the
issue “cannot be raised on appeal unless the proponent can show
plain error or exceptional circumstances.” Fullerton, 2018 UT 49,
¶ 49; see also State v. Davie, 2011 UT App 380, ¶ 15, 264 P.3d 770(“When a party raises an issue on appeal without having
properly preserved the issue below, we require that the party
articulate an appropriate justification for appellate review;
specifically, the party must argue either plain error or
exceptional circumstances.” (quotation simplified)).
¶22 In this case, however, Fredrick does not ask us to review
this issue for plain error, and does not contend that exceptional
circumstances exist. Accordingly, we do not further address his
unpreserved claim. 4 See State v. Hodges, 2002 UT 117, ¶ 5, 63 P.3d
4. Even if Fredrick had asked us to review this issue for plain
error, we would have been hard-pressed to find it. “To
demonstrate plain error, a defendant must establish that (i) an
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful. If any one of these
requirements is not met, plain error is not established.” State v.
Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443 (quotation simplified). At
the time it admitted the CJC Interview into evidence, the trial
court was no more aware of K.R.’s exact age than counsel was,
and it is not plain error for a trial court to fail to act on
information that it does not have. Moreover, the interpretation of
rule 15.5 advanced by Fredrick is not obviously correct. Neither
side directs our attention to any Utah case law specifying
whether the reference to a victim’s age contained in this phrase
of rule 15.5—“the oral statement of a victim . . . younger than 14
years of age which was recorded prior to the filing of an
information”—refers to the victim’s age at the time of trial, or the
victim’s age at the time the statement is given. In the absence of
any definitive case law to the contrary, it would be difficult for
(continued…)
20180441-CA 9 2019 UT App 152State v. Fredrick
66 (“Because defendant has not asserted either of the exceptions
to the general rule—plain error or exceptional circumstances—
we decline to address [his claims].”); State v. Soules, 2012 UT App
238, ¶ 8, 286 P.3d 25 (stating that where the defendant “does not
assert plain error or exceptional circumstances[,] . . .we do not
address the merits” of the claim).
B
¶23 Although Fredrick failed to preserve any objection to the
admission of the CJC Interview related to K.R.’s age, he did
timely raise a separate objection to the interview’s admission: he
asked the trial court to exclude the interview on the ground that
it did not comport with rule 15.5(a)(8) of the Utah Rules of
Criminal Procedure. Although we have not been provided with
any record of the trial court’s ruling on this issue, we know that
the court specifically overruled Fredrick’s objection and
determined that the CJC Interview was both reliable and
trustworthy. Supra ¶ 11 & n.3. Fredrick now assails that ruling,
asserting that it was insufficient because it did not contain
“specific findings regarding the accuracy or reliability” of the
CJC Interview. Fredrick’s appellate argument fails because he
has not provided us with a record of the trial court’s ruling, and
in the absence of such a record, we are bound to presume the
regularity of the proceedings below.
¶24 As the party seeking appellate review of the trial court’s
rulings, Fredrick has “the duty and responsibility to support
[his] allegations with an adequate record.” State v. Snyder, 932
P.2d 120, 131 (Utah Ct. App. 1997) (quotation simplified). “When
crucial matters are not included in the record, the missing
portions are presumed to support the action of the trial court.”
(…continued)
us to conclude that the State’s interpretation (i.e., that the age
reference is to the victim’s age at the time the statement is given)
is obviously incorrect.
20180441-CA 10 2019 UT App 152State v. Fredrick
State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278 (quotation
simplified). Thus, “when an appellant fails to provide an
adequate record on appeal, we presume the regularity of the
proceedings below.” Id.; see also Snyder, 932 P.2d at 131(reasoning that, without an adequate record, a “defendant’s
assignment of error stands as a unilateral allegation which the
review court has no power to determine” (quotation simplified)).
¶25 Here, Fredrick has not provided us with a transcript,
minute entry, or any other type of record detailing the trial
court’s pretrial ruling regarding the admissibility of the CJC
Interview. But we know the trial court made such a ruling,
because Fredrick himself said so both in writing and in open
court. In a post-trial motion, Fredrick wrote that, “[o]n or about
[the first day of trial], the [court found] that the CJC Interview
did not lack reliability [or] trustworthiness, and pursuant to Rule
15.5 of the Utah Rules of Criminal Procedure, the CJC Interview
would be allowed to be played during the trial.” And at his
sentencing hearing a few weeks later, Fredrick’s attorney stated
that “Your Honor did make a ruling that [the CJC Interview]
was inherently reliable and trustworthy,” and the trial court
confirmed that the admissibility of the CJC Interview “was an
issue that was addressed prior to trial.”
¶26 But the record before us contains no transcript or other
record of any such specific ruling. Fredrick’s appellate challenge
to that ruling—that it did not contain “specific findings
regarding the accuracy or reliability” of the CJC Interview—is
particularly one that requires us to examine the ruling. Without
an ability to scrutinize the ruling for particular findings or
conclusions, we have no way to determine whether the ruling in
fact contained the “specific findings” that Fredrick now claims
that it lacked. This is precisely the sort of situation in which we
must “presume the regularity of the proceedings below,”
Pritchett, 2003 UT 24, ¶ 13, and we therefore conclude that
Fredrick has not carried his burden on appeal of persuading us
that the trial court committed error. Accordingly, we decline to
address Fredrick’s argument.
20180441-CA 11 2019 UT App 152State v. Fredrick
II. Police Interview
¶27 Fredrick next argues that the trial court improperly
denied his motion to suppress the police interview containing
his confession. Fredrick contends that the interview was
conducted in violation of his Fifth Amendment rights, a
contention that is premised on two assertions: (1) that he was “in
custody” for the purposes of Miranda, and (2) that he was given
an insufficient Miranda warning prior to making his confession.
The State acknowledges Fredrick’s second point, and makes no
effort to defend the sufficiency of the Miranda warning afforded
to Fredrick. 5 However, the State vigorously contests Fredrick’s
first assertion, and takes the position that Fredrick was not “in
custody” until the end of the interview, after his confession,
when Detective placed him under arrest. For the reasons that
follow, we think the State has the better of the argument.
¶28 The Fifth Amendment to the United States Constitution
provides that “[n]o person . . . shall be compelled in any criminal
case to be a witness against himself.” U.S. Const. amend. V. To
protect this right against self-incrimination, the United States
Supreme Court held, in Miranda v. Arizona, 384 U.S. 436 (1966),
that individuals who are in police custody must be apprised of
their rights prior to any questioning. Id. at 478–79. In so doing,
the officer must inform the suspect that “he has the right to
remain silent,” “anything he says can be used against him in a
court of law,” “he has the right to the presence of an attorney,”
and “if he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires.” Id. at 479.
5. Detective did not warn Fredrick that “anything he said could
be used against him in court.” See Miranda, 384 U.S. at 469 (“The
warning of the right to remain silent must be accompanied by
the explanation that anything said can and will be used against
the individual in court.”).
20180441-CA 12 2019 UT App 152State v. Fredrick
¶29 Because these safeguards apply only “when an individual
is taken into custody or otherwise deprived of his freedom by
the authorities in any significant way,” id. at 478, a threshold
inquiry in any Miranda challenge is whether the defendant was
in custody at the time of questioning, see State v. Fullerton, 2018
UT 49, ¶ 19, 428 P.3d 1052. In this context, “custody” is a “term
of art that specifies circumstances that are thought generally to
present a serious danger of coercion.” Howes v. Fields, 565 U.S.
499, 508–09 (2012). To determine whether a suspect is in custody
for the purposes of Miranda, the United States Supreme Court
has developed a two-part test. “The initial step is to ascertain
whether, in light of the objective circumstances of the
interrogation a reasonable person would have felt he or she was
not at liberty to terminate the interrogation and leave.” Id. at 509(quotation simplified). If “an individual’s freedom of movement
was curtailed,” the court must then determine “whether the
relevant environment presents the same inherently coercive
pressures as the type of station house questioning at issue in
Miranda.” Id.¶30 The first part of this inquiry—whether a reasonable
person would have felt free to leave—is an objective one. See
J.D.B. v. North Carolina, 564 U.S. 261, 271 (2011) (stating that the
inquiry “involves no consideration of the actual mindset of the
particular suspect” because “the subjective views harbored by
either the interrogating officers or the person being questioned
are irrelevant” (quotation simplified)). Accordingly, “in order to
determine how a suspect would have gauged his freedom of
movement, courts must examine all of the circumstances
surrounding the interrogation.” Howes, 565 U.S. at 509 (quotation
simplified); see also J.D.B., 564 U.S. at 270 (refusing to “demarcate
a limited set of relevant circumstances”). Some relevant factors
identified by the Supreme Court include “the location of the
questioning, its duration, statements made during the interview,
the presence or absence of physical restraints during the
questioning, and the release of the interviewee at the end of the
20180441-CA 13 2019 UT App 152State v. Fredrick
questioning.” 6 Howes, 565 U.S. at 509 (quotation simplified). In
addition, the Court has also considered “whether the police
transported the interviewee to the station or required him to
arrive at a specific time, whether the police threatened him with
arrest, the focus of the questioning, and whether he wanted
breaks.” Fullerton, 2018 UT 49, ¶ 25 (citing Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)). In short, Fredrick was entitled to a
Miranda warning only if he was “in custody” during
questioning, an inquiry that is informed by considering whether
“a reasonable person, based on all of the objective circumstances
6. Over thirty years ago, our supreme court identified “four of
the most important factors in determining whether an accused
who has not been formally arrested is in custody.” Salt Lake City
v. Carner, 664 P.2d 1168, 1171 (Utah 1983). These factors, known
as the Carner factors, are “(1) the site of the interrogation;
(2) whether the investigation focused on the accused; (3) whether
objective indicia of arrest were present; and (4) the length and
form of interrogation.” Id. In times gone by, our supreme court
sometimes treated the Carner factors as a comprehensive and
complete list of relevant considerations. See, e.g., State v. Wood,
868 P.2d 70, 82 (Utah 1993) (citing Carner, and stating that “[f]our
factors determine whether an accused who has not been
formally arrested is ‘in custody’ for Miranda purposes”).
Recently, however, the court noted that, “[w]hile these four
factors may, at times, be relevant in a custody analysis,” “[s]trict
or sole reliance on the Carner factors is inconsistent with . . .
federal law,” which dictates that the “custody” question must be
answered based on the “totality of the circumstances.” State v.
Fullerton, 2018 UT 49, ¶ 23, 428 P.3d 1052. Accordingly, proper
use of the Carner factors—which overlap to some extent with
those identified by the United States Supreme Court in Howes v.
Fields, 565 U.S. 499 (2012)—“requires considering them in
conjunction with all other relevant circumstances.” Fullerton,
2018 UT 49, ¶ 24. Each factor “should be considered when
relevant, ignored when not, and given appropriate weight
according to the circumstances.” Id. ¶ 23.
20180441-CA 14 2019 UT App 152State v. Fredrick
surrounding the interrogation, would have felt free to terminate
the interview and leave.” Id. ¶ 26.
¶31 In this case, there are a number of factors supporting
Fredrick’s position that a reasonable person would not have felt
free to leave during the interview. For example, the interview
occurred at the police station, in a small interview room in which
Detective sat in the chair nearest to the door; the interview lasted
about two hours; the questioning was clearly focused on
Fredrick as a suspect; Detective attempted to give Fredrick a
Miranda warning, possibly indicating that Detective believed
that the situation required one; Detective never expressly told
Fredrick that he was free to leave; and Detective arrested
Fredrick at the conclusion of the interview.
¶32 But, as the State points out, significant factors also point
in the opposite direction. Fredrick voluntarily drove himself to
the police station in his own vehicle, and (until his post-
interview arrest) retained possession of his phone, wallet, and
keys. Fredrick chose to sit in the chair farthest from the door in
the interview room. The door to the interview room was shut,
but remained unlocked the entire time. At no point during the
interview was Fredrick handcuffed or restrained in any way;
indeed, at the beginning of the interview, Detective explicitly
told Fredrick that he was “not under arrest” and that he could
“stop answering questions” at “any time during questioning.”
Detective was not wearing his full police uniform; instead, he
was dressed in a police polo shirt and dark pants. No sidearm or
weapon was readily apparent on Detective’s person, and at no
point did Detective display a gun or any other weapon. While
Detective did focus his questioning on Fredrick, he maintained a
respectful and accommodating tone throughout the interview.
¶33 When we consider these facts in their totality, we
conclude that “a reasonable person in [Fredrick’s] position
would have felt free to terminate the interview and leave.” See id.
¶ 30. While relevant, the location and the duration of the
questioning are not dispositive. See Howes, 565 U.S. at 515
20180441-CA 15 2019 UT App 152State v. Fredrick
(finding that an interview lasting for between “five and seven
hours” was not enough alone to show that Miranda’s custody
requirement had been met); Oregon v. Mathiason, 429 U.S. 492,
495 (1977) (per curiam) (stating that the requirement of Miranda
warnings is not “to be imposed simply because the questioning
takes place in the station house”). Indeed, the location of the
questioning must be weighed against whether the defendant
voluntarily chose to attend. State v. Fuller, 2014 UT 29, ¶ 45, 332
P.3d 937. In this case, although the interview was at the police
station, Fredrick attended the interview of his own volition. See
Yarborough, 541 U.S. at 664 (noting that certain facts weighed
against finding that the defendant was in custody, including that
“[t]he police did not transport [him] to the station”); Fullerton,
2018 UT 49, ¶ 31 (finding that the defendant who “voluntarily
had his father drive him to the police station” and had his father
“wait[] at the station for him” was not in custody); Fuller, 2014
UT 29, ¶¶ 45, 47 (concluding that the defendant was not in
custody although the interrogation took place in a police car
because the defendant voluntarily entered the car and the doors
remained unlocked during the interview).
¶34 Moreover, during the interview, Fredrick was not
restrained, the door to the interview room was never locked, and
Detective was dressed casually and did not have any apparent
weapon. See Fuller, 2014 UT 29, ¶ 48 (listing handcuffs, drawn
guns, and locked doors as “objective indicia of arrest” (quotation
simplified)); State v. MacDonald, 2017 UT App 124, ¶ 29, 402 P.3d
91 (concluding that circumstances suggesting the defendant was
not in custody included a lack of physical restraints, officers that
were in plain clothes with no visible weapons, and the interview
room remained unlocked); State v. Reigelsperger, 2017 UT App
101, ¶ 58, 400 P.3d 1127 (same).
¶35 Significantly, Detective expressly told Fredrick that he
was not under arrest and that he could terminate the interview
at any time. While it would have been better if Detective had
also plainly stated that Fredrick was free to leave, we conclude
that a reasonable person who hears that he is not under arrest
20180441-CA 16 2019 UT App 152State v. Fredrick
and is free to refuse to answer questions would likely believe
that he was free to leave. See Mathiason, 429 U.S. at 495(recognizing that the defendant “was immediately informed that
he was not under arrest,” which was an “indication that the
questioning [did not take] place in a context where [the
defendant’s] freedom to depart was restricted in any way”);
United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990) (“The
most obvious and effective means of demonstrating that a
suspect has not been taken into custody . . . is for the police to
inform the suspect that an arrest is not being made and that the
suspect may terminate the interview at will.” (quotation
simplified)); Fullerton, 2018 UT 49, ¶ 32 (weighing police
assurance to the defendant that he “was not under arrest”
against finding the defendant was in custody). Fredrick points to
Detective’s decision to attempt to issue a Miranda warning as a
factor in his favor, but Detective’s decision may have simply
been a precaution and demonstrates, at most, his own subjective
belief that such a warning was necessary, a factor that is not
relevant to the inquiry. See J.D.B., 564 U.S. at 271 (stating that
“the subjective views harbored by either the interrogating
officers or the person being questioned are irrelevant” (quotation
simplified)); see also United States v. Lewis, 556 F.2d 446, 449 (6th
Cir. 1977) (“The precaution of giving Miranda rights in what is
thought could be a non-custodial interview should not be
deterred by interpreting the giving of such rights as a restraint
on the suspect, converting a non-custodial interview into a
custodial interrogation for Miranda purposes.”); United States v.
Oldman, 156 F. Supp. 2d 1252, 1260 (D. Utah 2001) (“The mere
provision of Miranda warnings does not itself convert an
otherwise non-custodial interview into a custodial
interrogation.” (quotation simplified)).
¶36 Finally, Detective maintained a calm demeanor and never
raised his voice. See Fullerton, 2018 UT 49, ¶ 34 (noting that “the
officers never rais[ing] their voices” during questioning
supported that an interview was non-custodial in nature);
MacDonald, 2017 UT App 124, ¶ 35, (“[T]he questioning, though
at times pointed, was calm, respectful, and not sufficiently
20180441-CA 17 2019 UT App 152State v. Fredrick
coercive to render the interview custodial.”). Detective reminded
Fredrick that he expected him to be “completely fair and honest”
and that there could be negative ramifications should Fredrick
lie. See Yarborough, 541 U.S. at 664 (“Instead of pressuring [the
defendant] with the threat of arrest and prosecution, [the officer]
appealed to [the defendant’s] interest in telling the truth and
being helpful to a police officer.”). However, Detective never
threatened Fredrick or attempted to overstate potential
consequences for dishonesty. Each time Detective believed
Fredrick was lying, he simply stated as much and gave Fredrick
the opportunity to revise his statement. And Fredrick appeared
willing to answer Detective’s questions and even expressed how
“relieved” he was to explain what had happened because he had
“been trying to get rid of [the] guilt for so long.” See
Reigelsperger, 2017 UT App 101, ¶ 58 (concluding that a
defendant was not in custody in part because, “although [the
defendant] was not told that he could leave, he appeared rather
eager to tell his side of the story” and the detectives did not
“engage[] in coercive tactics” (quotation simplified)).
¶37 In the end, we are unable to meaningfully distinguish the
facts of this case from the facts of Fullerton, a case in which our
supreme court recently determined that a similar interview was
non-custodial. See 2018 UT 49, ¶¶ 27–36. In both cases, the
defendant voluntarily traveled to the police station. Once at the
station, both defendants were shown to a small interview room,
the door to which was shut but not locked; indeed, the officers
conducting the interviews came and went multiple times. Both
defendants were expressly told that they were not under arrest.
Once the interview began, both defendants remained
unrestrained for the duration of the interview, which was
roughly the same in both cases (ninety minutes in Fullerton, two
hours here), and both interviews were conducted by one officer
dressed casually and with no visible weapon. In both interviews,
the officers were focusing on the defendants as potential
suspects, although throughout the course of both interviews the
officers maintained a calm demeanor and never raised their
voices, even when they suspected that the defendants were
20180441-CA 18 2019 UT App 152State v. Fredrick
lying. And at the end of both interviews, the defendants were
arrested and taken into custody.
¶38 We can discern only three potential differences between
the facts of this case and the facts of Fullerton: (1) in Fullerton, in
addition to informing the defendant that he was not under
arrest, officers also expressly told the defendant that he was free
to leave; (2) in our case, officers attempted to give a Miranda
warning, whereas in Fullerton they made no such attempt; and
(3) in our case, officers hinted at “taking legal action” in the
event that Fredrick was “not being honest,” and there is no
indication that officers made similar statements in Fullerton. But
we do not think these three differences are material enough to
make this case come out differently than Fullerton. Although
Detective did not expressly tell Fredrick that he was free to
leave, he did tell him that he was not under arrest and that he
was free to terminate the interview and stop answering
questions; while it would have been better if Detective had also
made plain that Fredrick was free to leave, we think a reasonable
person in Fredrick’s position would have understood from
Detective’s instructions that he was indeed free to leave. And as
noted above, the fact that Detective attempted to give Fredrick a
Miranda warning may have just been a precaution and was, at
most, an indication of Detective’s subjective beliefs, rather than
an objective indication of Fredrick’s lack of freedom. And while
Detective did attempt to explain to Fredrick that there could be
consequences for dishonesty, we do not view Detective’s
comments as an indication that Fredrick was no longer free to
terminate the interview; rather, we construe Detective’s
comments as a simple warning that, if Fredrick chose to answer
questions, he should do so honestly.
¶39 In short, we are unable to meaningfully distinguish this
case from Fullerton. If the defendant in Fullerton was not in
custody, then neither was Fredrick. After examining the totality
of the circumstances in this case, and comparing those
circumstances with those presented in Fullerton, we agree with
the trial court’s conclusion that “Fredrick was not in custody or
20180441-CA 19 2019 UT App 152State v. Fredrick
deprived of his freedom of action in any significant way while
he was being questioned by [Detective],” because “a reasonable
person in [Fredrick’s] position would not . . . have felt that their
freedom of action was curtailed in a significant way.”
Accordingly, we affirm the trial court’s decision to deny
Fredrick’s motion to suppress the police interview.
III. Electronic Evidence
¶40 Finally, Fredrick argues that the trial court erred in
allowing the State to use up to fourteen pieces of Electronic
Evidence, only seven of which the State actually introduced at
trial. Most of those items were admitted pursuant to rule 404(c)
of the Utah Rules of Evidence. Fredrick assails the court’s
decision to admit the evidence pursuant to rule 404(c), 7 contends
that the court failed to properly analyze whether the evidence
was relevant under rule 402 or unfairly prejudicial under rule
7. Of the fourteen items that the trial court permitted the State to
introduce, the court declared some of them admissible under
rule 404(b)(2) of the Utah Rules of Evidence, some admissible
under rule 404(c), and some admissible under both rules.
Although not every item the trial court allowed the State to
introduce was actually used at trial, the State acknowledges that
at least one of the items used at trial was admitted solely under
rule 404(c). Fredrick does not challenge the trial court’s decision
to admit any of the Electronic Evidence pursuant to rule
404(b)(2), and his failure to address an alternative ground for the
trial court’s decision to admit the Electronic Evidence is fatal to
his appellate challenge to the evidence also admitted under rule
404(b)(2). See State v. Paredez, 2017 UT App 220, ¶ 13, 409 P.3d
125 (“We will not reverse a district court’s denial of a motion
when the appellant fails to challenge the district court’s
independent alternative grounds for denying that motion.”). But
because at least one of the items of Electronic Evidence was
apparently admitted solely under rule 404(c), we proceed to
address the merits of Fredrick’s rule 404(c) challenge.
20180441-CA 20 2019 UT App 152State v. Fredrick
403, and asserts that a proper analysis under these rules “would
have required exclusion of the evidence.”
¶41 Under the Utah Rules of Evidence, evidence of a person’s
prior bad acts is generally not admissible “to prove a person’s
character in order to show that on a particular occasion the
person acted in conformity with the character.” Utah R. Evid.
404(b)(1). This general rule is subject to a number of exceptions,
most notably rule 404(b)(2), which allows evidence of a
defendant’s prior bad acts to be admitted, so long as there is—in
addition to the generally-forbidden propensity inference—a
proper non-character purpose for admission of that evidence. See
State v. Thornton, 2017 UT 9, ¶ 58, 391 P.3d 1016 (stating that
“[t]he threshold 404(b) question is whether the evidence has a
plausible, avowed purpose beyond the propensity purpose that
the rule deems improper,” and that “[i]f it does then the
evidence is presumptively admissible (subject to rule 402 and
403 analysis)”).
¶42 But in child molestation cases, prosecutors need not go
through the exercise of articulating a non-propensity purpose for
evidence “that the defendant committed any other acts of child
molestation.” Utah R. Evid. 404(c)(1). The drafters of our rules of
evidence have determined, as a policy matter, that propensity
evidence in child molestation cases can come in on its own
terms, as propensity evidence, even if there is no other plausible
or avowed purpose for such evidence. Indeed, rule 404(c) plainly
states that, “[i]n a criminal case in which a defendant is accused
of child molestation, the court may admit evidence that the
defendant committed any other acts of child molestation to
prove a propensity to commit the crime charged.” Id.; see also
State v. Cuttler, 2015 UT 95, ¶ 26, 367 P.3d 981 (“Rule 404(c)(1)
explicitly allows [admission of evidence of prior acts of child
molestation] for the purpose of proving a defendant’s propensity
to commit the child molestation with which he is charged”
(quotation simplified)).
20180441-CA 21 2019 UT App 152State v. Fredrick
¶43 Even though prosecutors need not articulate a non-
character purpose for evidence of previous acts of child
molestation in order to win its admission, they still must
demonstrate that the proposed evidence comports with rules 402
and 403 of the Utah Rules of Evidence. See State v. Ring, 2018 UT
19, ¶ 27, 424 P.3d 845 (applying a rule 403 balancing analysis to
rule 404(c) evidence); Cuttler, 2015 UT 95, ¶ 15 (“Prior child
molestation evidence that is admissible under rule 404(c) is
subject to rule 403.” (quotation simplified)); State v. Nelson-
Waggoner, 2000 UT 59, ¶ 26, 6 P.3d 1120 (“Bad acts evidence, like
all evidence, must be relevant or it is inadmissible.”). In this
context, however, the rule 402 relevance inquiry will generally
be not much more than a formality: rules 401 and 402 pose only
a low bar to the admission of evidence, see Utah R. Evid. 401
(stating that evidence is relevant if “it has any tendency to make
a fact more or less probable than it would be without the
evidence” and “the fact is of consequence in determining the
action”); see also State v. Reece, 2015 UT 45, ¶ 64, 349 P.3d 712(“Evidence that has even the slightest probative value is relevant
under the rules of evidence.” (quotation simplified)), and
evidence that a defendant accused of child molestation
committed previous acts of child molestation will almost
certainly be relevant, see State v. Murphy, 2019 UT App 64, ¶ 47,
441 P.3d 787 (Harris, J., concurring) (stating that propensity
evidence is typically excluded by our evidentiary rules “not
because it has no appreciable probative value, but because it has
too much” (quotation simplified)). In considering whether a
defendant sexually abused a child victim, a jury might find it
extremely probative to learn that the same defendant sexually
abused other children on previous occasions.
¶44 The rule 403 analysis to which rule 404(c) evidence must
be subjected begins in the same place as any other rule 403
analysis: with the text of the applicable rule. See Cuttler, 2015 UT
95, ¶ 18 (directing courts to apply the text of rule 403 to
questions regarding the admissibility of rule 404(c) evidence,
and not to limit themselves to the factors listed in State v.
Shickles, 760 P.2d 291, 295–96 (Utah 1988)). Under that rule,
20180441-CA 22 2019 UT App 152State v. Fredrick
evidence is to be excluded from trial “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.” Utah R. Evid. 403. In administering the
rule 403 balancing test, a court may consider any appropriate
factor. See Cuttler, 2015 UT 95, ¶¶ 16–21 & n.5 (stating that a
court may “consider many factors,” including but not limited to
the Shickles factors, except that courts may not consider “the
degree to which the evidence probably will rouse the jury to
overmastering hostility” (quotation simplified)).
¶45 But there is one crucial difference between the rule 403
analysis applied to evidence admitted pursuant to rule 404(c), as
compared to the rule 403 analysis applied to evidence admitted
pursuant to rule 404(b). Evidence admitted pursuant to rule
404(b) is offered for a non-character purpose and is admitted in
spite of its potential value as propensity evidence. Evidence
admitted pursuant to rule 404(c), by contrast, is admitted
precisely because of its (usually powerful) value as propensity
evidence. See id. ¶ 27 (stating that, in the rule 404(c) context, “the
accused’s propensity is the reason for admission” (quotation
simplified)). In conducting a rule 403 balancing with regard to
rule 404(b) evidence, the evidence’s non-character purpose
should be weighed on the “probative value” side of the ledger,
while the evidence’s value as propensity evidence should be
weighed on the “prejudice” side of the ledger. See State v. Lane,
2019 UT App 86, ¶ 47 & n.10, 444 P.3d 553 (Harris, J., concurring)
(“In conducting an appropriate rule 403 balancing in [the rule
404(b)] context, the ‘probative’ side of the equation should
include only the value of any admissible probability inferences,
and should not include the value of any impermissible
propensity inferences (which should be assessed on the
‘prejudice’ side of the equation).”); see also United States v. Ballou,
59 F. Supp. 3d 1038, 1069 (D.N.M. 2014) (determining that,
“[w]ith all rule 404(b) evidence,” courts must undertake a rule
403 analysis under which they “weigh the licit, probative value
of the evidence—meaning the value of the rule 404(b)
20180441-CA 23 2019 UT App 152State v. Fredrick
inference—against the danger of unfair prejudice—which
includes the character-propensity inference”). This is not the case
with evidence admitted pursuant to rule 404(c)—because such
evidence is coming in because of (rather than in spite of) its
propensity value, that evidence’s tendency to prove the
defendant’s propensity for child molestation can no longer be
assessed on the “prejudice” side of the rule 403 balancing test.
Indeed, the propensity value of the evidence is precisely what
makes rule 404(c) evidence so highly probative. See Cuttler, 2015
UT 95, ¶ 27 (stating that, “to give rule 404(c) purpose, evidence
of the prior conviction by itself cannot be said to lead to unfair
prejudice automatically” and that “the accused’s propensity is
the reason for admission and no longer constitutes unfair
prejudice” (quotation simplified)); see also Ring, 2018 UT 19, ¶ 31
(stating that “[r]ule 404(c)’s only function is to admit evidence of
prior child sex crimes” and that “evidence of child sex crimes,
which rule 404(c) has explicitly deemed admissible,” cannot be
excluded merely on the basis that its propensity inference is
“overly prejudicial”).
¶46 Thus, in order for rule 404(c) evidence to be unfairly
prejudicial, the defendant must be able to show something other
than the propensity nature of the evidence that weighs on the
prejudice side of the equation. For instance, as our supreme
court pointed out in Cuttler, a defendant may be able to
demonstrate that the proposed evidence contains technicolor
details, beyond its tendency to show a propensity for child
molestation, that might be unduly prejudicial. 8 Cuttler, 2015 UT
8. In this case, the trial court determined that “unfair prejudice is
not a valid Rule 403 ‘weighing’ argument as to Rule 404(c)
propensity evidence.” This is incorrect; even the State
acknowledges this as an “overread[ing]” of our supreme court’s
guidance in Ring and Cuttler. Courts must still analyze rule
404(c) evidence for unfair prejudice pursuant to rule 403, but in
the rule 404(c) context the evidence’s tendency to show the
(continued…)
20180441-CA 24 2019 UT App 152State v. Fredrick
95, ¶ 27 (stating that “inflammatory details beyond what is
necessary or appropriate for [the jury] to consider when drawing
[a] propensity inference” may be unfairly prejudicial, and noting
that “the court can prevent this danger of unfair prejudice by
limiting the details admitted about” the previous instance of
child molestation). Or, even aside from prejudice, a defendant
may be able to demonstrate that the proposed evidence fails the
rule 403 balancing test because it is cumulative, confuses the
issues, wastes time, or causes undue delay. Utah R. Evid. 403.
But a defendant who argues that rule 404(c) evidence should be
excluded under rule 403 merely because it tends to show his
propensity to commit child molestation will not have shown
enough to obtain exclusion of the evidence. See Ring, 2018 UT 19,
¶ 31 (“The evidence’s nature as a prior act of child molestation is
not a factor that weighs against admissibility.” (quotation
simplified)).
¶47 In order to assess its relevance, probative value, and
potential for unfair prejudice, we must describe the Electronic
Evidence at issue in this case in at least some detail. In some of
the communications, Fredrick described becoming aroused, and
even ejaculating, while showering with and washing his own
children years ago when they were small. In others, Fredrick
described becoming aroused while changing his niece’s diaper
and helping his small nephew use the bathroom. And Fredrick
also described arousal on various occasions when “the little girl
[he] babysit[s]” or one of his “nieces” was sitting on his lap while
reading a story or watching cartoons, including a description of
one incident, while watching “SpongeBob,” when he was
tickling one such girl near her panties.
¶48 Fredrick asserts that this evidence is not relevant, and is
therefore inadmissible under rule 402, because it has no
(…continued)
defendant’s propensity for committing acts of child molestation
should not be considered unfairly prejudicial.
20180441-CA 25 2019 UT App 152State v. Fredrick
relevance other than to show his propensity to commit acts of
child molestation. While this sort of analysis may be appropriate
in assessing the admissibility of rule 404(b) evidence, it misses
the mark when applied to rule 404(c) evidence. As noted above,
in this context, the evidence is being admitted because of (and not
in spite of) its value as propensity evidence, and such evidence
often has powerful probative value. It is precisely because of its
tendency to demonstrate Fredrick’s propensity for sexually
abusing children that the evidence is relevant here. The evidence
easily clears the low bar posed by rule 402.
¶49 And with regard to rule 403’s balancing test, Fredrick
does not identify anything other than the Electronic Evidence’s
tendency to show propensity that might be unfairly prejudicial.
He argues simply that “it is difficult to conceive of evidence
more likely to evoke . . . strong emotional reactions [in jurors]
than statements describing the sexual abuse of children.” As set
forth above, this is insufficient. Fredrick must point to something
other than the propensity nature of the evidence that he deems
unfairly prejudicial. And he points to nothing else. He does not
argue that the evidence is cumulative or a waste of time. And he
does not argue here—and did not argue below—that the
Electronic Evidence could have been admitted in a more
sanitized fashion, somehow allowing the jury to learn of the
previous incidents without unnecessary contextual details.
¶50 Under these circumstances, the trial court did not abuse
its discretion in admitting the seven items of Electronic Evidence
that were actually used at trial, and we reject Fredrick’s claims to
the contrary.
CONCLUSION
¶51 Fredrick has not persuaded us that the trial court erred by
allowing the CJC Interview to be presented to the jury. His first
argument along those lines is unpreserved, and Fredrick does
not argue that an exception to preservation applies. And his
20180441-CA 26 2019 UT App 152State v. Fredrick
second argument fails because he did not include a record of the
trial court’s ruling for our review. We also conclude that the trial
court did not err in denying Fredrick’s motion to suppress his
interview with police; based on the totality of the circumstances,
he was not in custody at the time of the interview and therefore
not entitled to a Miranda warning. Finally, we reject Fredrick’s
argument that the trial court exceeded its discretion by
admitting portions of the Electronic Evidence under rule 404(c)
of the Utah Rules of Evidence.
¶52 Affirmed.
MORTENSEN, Judge (concurring):
¶53 I fully concur in the judgment and analysis of the majority
opinion. I write separately to emphasize that the prejudice
analysis under rule 403—when associated with rule 404(c)—
focuses on prejudice other than the fact that the evidence shows
propensity to engage in reprehensible behavior involving
children. Admittedly, Utah’s appellate case law has muddied
this issue. Before the well-worn Shickles-factors mandate died a
death of a thousand cuts, see State v Lucero, 2014 UT 15, ¶ 32, 328
P.3d 841, abrogated on other grounds by State v. Thornton, 2017 UT
9, ¶ 39, 391 P.3d 1016; (holding that not all Shickles factors need
be considered); State v. Cuttler, 2015 UT 95, ¶ 20, 367 P.3d 981(holding that it is inappropriate for a trial court to “ever
consider” whether evidence will lead to “overmastering
hostility”—one of the Shickles factors); Thornton, 2017 UT 9, ¶ 53
(repudiating prior requirement of “scrupulous examination” of
Shickles factors); State v. Lowther, 2017 UT 34, ¶ 45, 398 P.3d 1032(holding that a “mechanical application” of the Shickles factors is
error); State v. Beverly, 2018 UT 60, ¶¶ 63–72, 435 P.3d 160(conducting a rule 404(b) review without mentioning Shickles at
all), this court stated that the Shickles factors—developed
specifically to guard against improper consideration of
propensity evidence—applied to rule 404(c)—a rule adopted
specifically in favor of consideration of propensity evidence. See
State v. Lintzen, 2015 UT App 68, ¶ 15, 347 P.3d 433; State v.
20180441-CA 27 2019 UT App 152State v. Fredrick
Ferguson, 2011 UT App 77, ¶ 15 n.4, 250 P.3d 89. To the extent
these cases hold or infer that the Shickles factors applied to rule
404(c), I believe these cases were wrongly decided and their
continued viability is highly questionable given development of
the law in the intervening years. And regrettably, the advisory
committee note still states: “Before evidence may be admitted
under Rule 404(c), the trial court should [among other things] . . .
consider the factors applicable as set forth in State v. Shickles, 760
P.2d 291, 295–96 (Utah 1988).” Utah R. Evid. 404 advisory
committee note. That is simply not presently the law. I would
hope our trial courts would ignore this misdirection.
20180441-CA 28 2019 UT App 152