Excluding 404(b) Evidence for Unfair Prejudice
The Court Can Exclude Relevant Evidence if it Causes Unfair Prejudice
The court of appeals recently addressed rule 404(b) and the “unfair prejudice” standard for excluding relevant evidence in State v. Rackham.
In Rackham, sixteen-year-old K.M. has had many incidents with Rackham, her twenty-four-year-old relative, where he would touch her inappropriately. On July 23, 2010, Rackham came up behind K.M. while she was bending over into her car door and put his hands on her stomach. After pushing him away, he approached K.M. again and put his hand under her shirt and brushed her breast. During previous encounters, K.M. has had to tell Rackham to not touch her after he would lift up her shirt, grab her butt, etc. K.M. told her parents about these encounters, and her father confronted Rackham as well as reported the incidents to the police. After speaking with two of Rackham’s uncles, K.M. learned that their daughters had also been inappropriately touched by Rackham to a greater extent than K.M. experienced and was thus being prosecuted in connection with his actions.
In December 2011, the State charged Rackham with one count of sexual battery based on the July 2010 incident with K.M. This charge required proof that Rackham intentionally touched K.M.’s breast under circumstances that he knew or should have known would likely cause affront or alarm to her. The State filed a motion in limine seeking to admit evidence of Rackham’s prior incidents of misconduct for purposes of proving Rackham’s knowledge that touching K.M. would cause affront or alarm. The trial court granted the State’s motion in limine, admitting the evidence solely for the purpose of proving knowledge. After a two-day trial, the jury found Rackham guilty of sexual battery, a class A misdemeanor, and Rackham appealed.
Rackham challenged the trial court’s admission of the rule 404(b) evidence with respect to the inappropriate touching of Rackham’s other female relatives. 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. Utah R. Evid. 401. Because the relevance inquiry establishes a very low bar that deems even evidence with the slightest probative value relevant, this court concluded that the evidence relating to the other female relatives was relevant to the issue of knowledge.
The court also discussed that while evidence relating to Rackham’s other encounters has some probative value with respect to the knowledge element, any probative value is substantially outweighed by the danger of unfair prejudice. The other females’ testimony was strong evidence of knowledge because it showed that Rackham had caused affront or alarm to young female relatives whom he had touched in the past, which supported an inference that he was or should have been aware that similar touching of K.M. would likely also be unwelcome.
The lack of similarity between the acts of the other females, however, undermines the probative value of the rule 404(b) evidence and weighs against admission. Unlike K.M., who alleged that Rackham touched her breast over her bra, the other females testified that Rackham touched their breasts and genitals under their clothing, and one of them testified that this happened on many occasions over a number of years. In addition, there was not a strong need for the evidence relating to the other females because K.M.’s own testimony provided ample evidence in support of the knowledge element. The jury could easily have concluded from K.M.’s evidence that Rackham knew he would cause affront or alarm to K.M. by touching her breast. Thus, the court concluded that the probative value of the rule 404(b) evidence relating to the other females for the purpose of proving knowledge was substantially outweighed by the danger of unfair prejudice.
The State relied heavily on the evidence regarding Rackham’s prior interactions, and the presentation of that evidence used up a lot of trial time when compared to the presentation of facts for the charge itself. The possibility that Rackham’s conviction reflected the jury’s assessment of his character, rather than the evidence of the crime he was charged with, should be considered. This court vacated Rackham’s conviction and remanded for a new trial because the erroneous admission of the challenged rule 404(b) evidence undermines its confidence in the verdict.