State v. Oshley, Jr.

State v. Oshley, Jr.

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Wesley Oshley, Jr.,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20030193-CA

F I L E D

(November 26, 2004)

2004 UT App 444

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Fourth District, Provo Department

The Honorable Fred D. Howard

Attorneys: Margaret P. Lindsay, Orem, for Appellant

Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Greenwood.

GREENWOOD, Judge:

Defendant Wesley Oshley, Jr. appeals his conviction on two counts of aggravated burglary, a first degree felony. See Utah Code Ann. § 76-6-203 (2001). Defendant alleges that the trial court abused its discretion when it admitted, over Defendant's objection, prior bad acts evidence--specifically, his former girlfriend's testimony describing an earlier knife attack on her by Defendant. We affirm.

"We review a trial court's decision to admit evidence of other crimes, wrongs, or bad acts for an abuse of discretion." State v. Fedorowicz, 2002 UT 67,¶24, 52 P.3d 1194.

Apart from procedural requirements at trial, to be admissible, evidence of other crimes, wrongs, or bad acts must be (1) for a proper purpose, (2) relevant, and (3) not substantially more prejudicial than probative. See State v. Webster, 2001 UT App 238,¶31, 32 P.3d 976 (quotations and citation omitted). The evidence must be relevant for a noncharacter purpose. See State v. Houskeeper, 2002 UT 118,¶27, 62 P.3d 444.

Turning first to the purpose of the testimony, rule 404(b) of the Utah Rules of Evidence states:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action 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.

Utah R. Evid. 404(b).

In the present case, the trial court observed that the testimony tended to prove Defendant's motive, intent, and plan to commit the second attack. Such purposes are proper, as they are explicitly enumerated in rule 404(b). See id. In this case, the testimony explained the context of the crime and Defendant's motive in attacking the victim. Such testimony is admissible as noncharacter evidence under rule 404(b). See State v. Dominguez, 2003 UT App 158,¶21, 72 P.3d 127.

Second, "'[r]elevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Utah R. Evid. 401.

Similarities in the first and second attacks make the identity of Defendant as the perpetrator more likely than without such evidence. Both involved Defendant, apparently concerned about his unborn child, cornering women and threatening them with a knife. Also, evidence of the prior attack was relevant to Defendant's possible motive, plan, or intent to target the victim and members of her family. Specifically, Defendant believed that members of the victim's family were influencing his former girlfriend's decisions to terminate both their relationship and her pregnancy. In addition, the evidence was relevant to refute Defendant's claim that he made no threats with a knife. Therefore, evidence of the first attack was relevant.

Finally, rule 403 states that, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Utah R. Evid. 403.

The trial court, applying a simple balancing test, not the "substantially outweighs" test, found that the victim's testimony was more probative than prejudicial.

Moreover, "[p]roximity in time combined with similarity in type of crime virtually guarantees admittance of prior bad acts evidence." State v. Nelson-Waggoner, 2000 UT 59,¶29, 6 P.3d 1120 (quotations and citation omitted).

Here, the interval between the first attack and the second attack was six weeks, a sufficiently brief time period. See id. (noting that "the time between all of the incidents was a brief ten weeks"); State v. Holbert, 2002 UT App 426,¶41, 61 P.3d 291 (deeming a three-month interval "minimal"). Furthermore, there were many similarities between the attacks. Hence, the probative value of the evidence was great and not "substantially outweighed by the danger of unfair prejudice." Utah R. Evid. 403.

We hold that the trial court did not abuse its discretion by admitting the evidence of Defendant's prior bad acts. Accordingly, we affirm.

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Pamela T. Greenwood, Judge

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WE CONCUR:

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge