STATE v. HILDRETH

at he had performed a pregnancy massage on M.W. because there are limited procedures available to pregnant women. Hildreth testified that during the massage, M.W. was not exposed from the waist down; rather, Hildreth testified that he "made sure [M.W.] had a double gown on her" but acknowledged it was "very possible" the gown could have slipped off. Finally, Hildreth testified that M.W. consented to the pregnancy massage and "[absolutely" did not complain while he was conducting the examination.

¶ 28 As to A.W., Hildreth testified that he performed a chiropractic massage for her in the spring of 2004. Hildreth testified that during the massage, A.W. was unclothed except for her underwear, and that they were not alone but that "[t]here w[ere] many people in and out of the room." Hildreth further testified that it was possible that the "side of [his] hands or something" could have "bumped into" A.W.'s vaginal area during the massage but that he did not intentionally touch her in an inappropriate manner. Hildreth also testified that A.W. consented to the full body massage, that she told him it felt "really good," and that she gave him no indication "whatsoever" that she was uncomfortable with what he was doing. Finally, Hildreth testified that he had no intent to sexually arouse either himself or A.W. during the massage.

¶ 29 At the conclusion of the trial, the jury convicted Hildreth of Counts I and II, for his conduct relating to C.W., but acquitted him of Counts III through VI for his conduct relating to B.B., M.W., and A.W. Hildreth now appeals his convictions relating to C.W., arguing that the trial court erred by denying his motion for severance. We reverse and remand.

ISSUE AND STANDARD OF REVIEW

¶ 30 Hildreth contends that the trial court erred in denying his motion for severance.

[T]he grant or denial of severance is a matter within the discretion of the trial judge, so we reverse [a denial] only if the trial judge's refusal to sever charges is a clear abuse of discretion in that it sacrifices the defendant's right to a fundamentally fair trial. Under [the abuse of discretion] standard, we will not reverse . . . unless the decision exceeds the limits of reasonability.

State v. Balfour, 2008 UT App 410, ¶ 10, 198 P.3d 471 (alterations and omission in original) (citation and internal quotation marks omitted).

ANALYSIS I. Severance of Charges

¶ 31 Hildreth argues that the trial court abused its discretion in denying his motion to sever. Utah Code section 77-8a-1 allows the joinder of offenses and defendants if certain criteria are met. See Utah Code Ann. § 77-8a-1 (2008). More specifically, that section provides,

(1) Two or more felonies, misdemeanors, or both, may be charged in the same indictment or information if each offense is a separate count and if the offenses charged are:

(a) based on the same conduct or are otherwise connected together in their commission; or

(b) alleged to have been part of a common scheme or plan.

. . . .

(4)(a) If the court finds a defendant or the prosecution is prejudiced by a joinder of offenses or defendants in an indictment or information or by a joinder for trial together, the court shall order an election of separate trials of separate counts, grant a severance of defendants, or provide other relief as justice requires.

Id. § 77-8a-1(1), (4)(a). "Thus, joinder of multiple offenses is appropriate if the requirements of Utah Code section 77-8a-1(1) are met and neither the defendant nor the prosecution is prejudiced as a result of the joinder." Balfour, 2008 UT App 410, ¶ 18, 198 P.3d 471. As discussed in more detail below, we conclude that the trial court erred in denying Hildreth's motion to sever because the charges were neither connected in their commission nor part of a common scheme or plan.

A. The Alleged Crimes Were Unconnected in Their Commission.

¶ 32 Hildreth argues that the charges do not satisfy section 77-8a-1(1)(a) because they were not connected in their commission. While the case law in Utah construing this language is limited, as a general rule, charges are connected in their commission when there is a "direct relationship" between them, often because the conduct resulting in one charge was "precipitated" by conduct resulting in another charge. See State v. Scales, 946 P.2d 377, 385 (Utah Ct.App. 1997) (holding that the theft and murder charges were connected in their commission where defendant's purpose in stealing the car and firearms was to facilitate his flight from the scene of the murder). Charges are also connected where one crime is committed in an effort to conceal another or previous crime. See State v. Smith, 927 P.2d 649, 653 (Utah Ct.App. 1996) (concluding that the evidence tampering and manslaughter charges were sufficiently connected for purposes of section 77-8a-1(1)(a) where the defendant threw the drug paraphernalia in the trash can to conceal the illegal drug activities that caused him to be charged with manslaughter). But such is not the case here. Other than the fact that all of the conduct was committed by Hildreth, the charges were not directly related to one another. Moreover, none of the charges was precipitated by the commission of the others, nor were any of the charges committed in an attempt to conceal the others. Accordingly, we conclude that the charges were not connected in their commission as contemplated by section 77-8a-1(1)(a), see Utah Code Ann. § 77-8a-1(1)(a).

Hildreth limits his argument to the "otherwise connected in their commission" language of section 77-8a-1(a), and we limit our analysis accordingly.

B. The Crimes Were Not Part of a Common Scheme or Plan.

¶ 33 Hildreth also argues that the trial court erred in denying his motion to sever because the charges were not part of a common scheme or plan. "`[T]o be classified as a common plan or scheme it is not necessary for the crimes to have been perpetrated in an absolutely identical manner, so long as the court perceives a visual connection between the . . . crimes.'" Balfour, 2008 UT App 410, ¶ 20, 198 P.3d 471 (alteration in original) (additional internal quotation marks omitted) (quoting State v. Lee, 831 P.2d 114, 117 (Utah Ct.App. 1992)). Thus, while absolutely identical conduct is not required, "striking similarities" in the conduct more readily supports a determination that the conduct occurred as part of a common scheme or plan. See Lee, 831 P.2d at 118; cf. State v. Nelson-Waggoner, 2000 UT 59, ¶¶ 3, 29, 6 P.3d 1120 (concluding, in the context of rule 404(b) analysis, that "there were significant and striking similarities in the manner in which [the] defendant carried out [several rapes]" where defendant had invited each victim to his room on a pretense; worn clothing that could be easily removed; locked the door before each rape; requested that each victim kiss his body before he raped her; used the same highly unusual and confining sexual position during the commission of the rapes; and told each victim to "enjoy the moment" or to stop "ruining a beautiful thing" (emphasis added)).

¶ 34 Furthermore, "[t]his court has interpreted the phrase `common scheme or plan' to apply when the crimes involve a similar fact pattern and proximity in time." Balfour, 2008 UT App 410, ¶ 20, 198 P.3d 471 (emphasis added). Accordingly, the facts and the timing of the incidents should be considered in their totality, that is, factual similarities should be viewed in light of their temporal proximity to one another. See id.; see also Lee, 831 P.2d at 118 (holding that "the striking similarities . . . in each incident, coupled with the proximity in time of the offenses, supplied a sufficient basis for the trial court to conclude that the crimes were alleged to have been part of a common scheme or plan" (emphasis added) (internal quotation marks omitted)); cf. United States v. Drew, 894 F.2d 965, 970 (8th Cir. 1990) ("[P]roximity in time combined with similarity in type of crime virtually guarantees admittance of prior bad acts evidence . . . ." (emphasis added)); Nelson-Waggoner, 2000 UT 59, ¶ 29, 6 P.3d 1120 (considering the combination of the "significant and striking similarities" as well as the "brief ten week[]" period between the crimes in conducting 404(b) analysis).

¶ 35 We conclude that under these rules, the facts of this case do not demonstrate the existence of a common scheme or plan. C.W. testified that in May 2007, Hildreth penetrated her vagina with his "whole hand" on two separate occasions; that he rubbed her vaginal area, including her clitoris, for "too long," until it began to hurt; that he simultaneously touched her bare breasts and "flicked" her nipple; that she told him to stop but he continued anyway; that he barricaded the door to the examination room on one occasion; and that she felt Hildreth was trying to sexually arouse her. In contrast, B.B. testified that in June or July 2006, Hildreth exposed her naked body from the waist up and that as he was palpating her rib cage, his fingers "went over [her] nipple"; that he pulled her pants down "enough to where her pubic bone or hair was showing" and felt around her pubic bone; and that in a subsequent examination, some seven to nine months later, Hildreth put his hand underneath her gown and touched her breast skin-to-skin. M.W. testified that during an examination in October 2006, she remained fully clothed but that Hildreth had put his hand under her shirt and bra and had touched the side of her breast skin-to-skin, not quite to her nipple area; that the following week, Hildreth exposed her from the waist down, massaging her stomach and buttocks; and that during the massage, she "could feel [him] lifting up [her] back side" and "could feel [her] cheeks separating." Finally, A.W. testified that during a chiropractic massage in spring 2004, Hildreth had "lightly brushed" her crotch area and also touched her labia under her underwear.

¶ 36 Aside from the fact that Hildreth was all of the women's chiropractor and that all of the conduct occurred during the course of treatment while the women were alone with him, there are too many variations in the circumstances and conduct to conclude that there is a "parallel fact pattern . . . [that] plainly demonstrates the existence of a calculated plan," see Lee, 831 P.2d at 118. Given that the incidents involved different body parts, different levels of undress and possibly unnecessary exposure, and different types of touching — from light brushing and massage to vigorous rubbing and actual penetration — we cannot say that there are striking similarities in Hildreth's conduct with each woman. See State v. Balfour, 2008 UT App 410, ¶ 30, 198 P.3d 471 (concluding that no common scheme or plan existed as to one of the complainants because, among other factors, she alleged that the defendant had rubbed his naked penis against her covered vagina, while the other women alleged only that defendant had touched their breasts).

And we cannot say that using a position of trust to gain access to a victim or physically isolating an individual in order to commit an assault are facts that are particularly unusual in the context of sexual assault cases generally. See State v. Cox, 787 P.2d 4, 6 (Utah Ct.App. 1990) (noting that the similarities in the case "are common to many assault or rape cases and are not peculiarly distinctive of [the] defendant's conduct" where the defendant knew each victim, committed the assaults when the victims were isolated, laid on top of the victims, and left the premises after the assaults were over).

¶ 37 Our conclusion is underscored when Hildreth's conduct is viewed in light of the lack of temporal proximity of the events. See id. ¶¶ 28-30 (refusing to "interpret . . . temporal proximity so broadly" as to include an incident involving one woman that took place sixteen months before the incidents involving the other women); Lee, 831 P.2d at 118 (concluding that, where the two criminal offenses occurred only five days apart, "[t]he striking similarities, coupled with the proximity in time of the offenses," justified the trial court's determination that the crimes were part of a common scheme or plan (emphasis added)). Here, the incidents occurred in May 2007 (C.W.), October 2006 (M.W.), June or July 2006 and February or March 2007 (B.B.), and 2004 (A.W.). While the relatively short time differences between the incident involving C.W. and the incidents involving M.W. and B.B. present a closer call, we are obliged to "resolve the issue in favor of assuring the defendant a fair trial." Balfour, 2008 UT App 410, ¶ 31, 198 P.3d 471.

Where the conduct involving A.W. occurred a full three years before the conduct relating to C.W., and over two years prior to the conduct involving B.B. and M.W., it was clearly not a part of a common scheme or plan. See State v. Balfour, 2008 UT App 410, ¶ 30, 198 P.3d 471 (concluding that no common scheme or plan existed as to one count where, inter alia, the underlying conduct occurred sixteen months before the conduct underlying the other counts).

"[C]are must be taken that [Utah Code section 77-8a-1] is not misused to deprive an accused of a fair trial upon an offense by joining different offenses so that evidence concerning charges unrelated in time and nature . . . could be admitted as to the multiple offenses in an effort to stigmatize the defendant and thus make it questionable that the jury would give a fair and dispassionate consideration to the evidence on the first charge."

Id. (second alteration and omission in original) (quoting State v. Gotfrey, 598 P.2d 1325, 1328 (Utah 1979)). Accordingly, we conclude that Hildreth's conduct did not constitute a common scheme or plan under Utah Code section 77-8a-1(1)(b). Because we have determined that the charges in this case were unconnected in their commission, see Utah Code Ann. § 77-8a-1(1)(a) (2008), and not part of a common scheme or plan, see id. § 77-8a-1(1)(b), we conclude that the trial court exceeded its permissible range of discretion in denying Hildreth's motion for severance.

¶ 38 The severance statute further provides,

If the court finds a defendant or the prosecution is prejudiced by a joinder of offenses or defendants in an indictment or information or by a joinder for trial together, the court shall order an election of separate trials of separate counts, grant a severance of defendants, or provide other relief as justice requires.

Id. § 77-8a-1(4)(a). See generally State v. Scales, 946 P.2d 377, 385 (Utah Ct.App. 1997) ("If we determine that the offenses either were connected together in their commission or were alleged to be part of a common scheme or plan, we must then examine whether the trial court complied with subsection (4)(a)."). Although we have determined that joinder was improper here, in cases where it has been determined joinder was proper and the defendant claimed prejudice under subsection (4)(a) of the severance statute, we have equated prejudice with whether the evidence would have properly come in anyway under rule 404(b) of the Utah Rules of Evidence, see Utah R. Evid. 404(b). Stated another way, an otherwise proper joinder of multiple charges is prejudicial if evidence of the other bad acts would not have been admissible in a separate trial. See, e.g., State v. Mead, 2001 UT 58, ¶¶ 58-59, 27 P.3d 1115. Here, the State argues that such analysis is equally appropriate.

II. Rule 404(b) Analysis

¶ 39 Under rule 404(b) of the Utah Rules of Evidence, evidence of a defendant's prior bad acts is not admissible to show that he or she acted in conformity with the bad behavior. See Utah R. Evid. 404(b). Rule 404(b) does, however, allow for admission of prior bad acts evidence "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. "Thus, `evidence . . . offered under [rule] 404(b)[] is admissible if it is relevant for a non-character purpose and meets the requirement of Rules 402 and 403 [of the Utah Rules of Evidence].'" State v. Marchet, 2009 UT App 262, ¶ 28, 219 P.3d 75 (alterations and omission in original) (quoting Utah R. Evid. 404(b) advisory comm. note), cert. denied, 221 P.3d 837 (Utah 2009).

¶ 40 Whether testimony regarding prior bad acts is admissible requires a three-part analysis. The first inquiry is "whether the bad acts evidence is being offered for a proper, noncharacter purpose, such as one of those specifically listed in rule 404(b)." State v. Nelson-Waggoner, 2000 UT 59, ¶ 18, 6 P.3d 1120; see also Marchet, 2009 UT App 262, ¶ 29, 219 P.3d 75. "If the purpose is deemed proper, `the court must [next] determine whether the bad acts evidence meets the requirements of rule 402, which permits admission of only relevant evidence.'" Marchet, 2009 UT App 262, ¶ 29, 219 P.3d 75 (alteration in original) (quoting Nelson-Waggoner, 2000 UT 59, ¶ 19, 6 P.3d 1120). Finally, "the court must analyze the evidence in light of rule 403 to assess whether its probative value is substantially outweighed by the risk of unfair prejudice to the defendant." Id.

A. Proper Noncharacter Purpose

¶ 41 The rebuttal testimony of B.B., M.W., and A.W. would be admissible in a separate trial for a proper, noncharacter purpose under rule 404(b), namely, to show Hildreth's intent and absence of accident. At trial, Hildreth specifically testified that he did not intend to arouse or sexually gratify himself or the women during the examinations. Thus, the evidence from all three women would be admissible to respond to or rebut that testimony for the noncharacter purposes of showing Hildreth's intent. Moreover, while Hildreth's defense during his case-in-chief was that the women consented to his conduct, Hildreth also claimed that at least as to B.B. and A.W., any improper touching could have been inadvertent. Thus, the evidence from B.B. and A.W. would also be admissible to rebut that testimony for the noncharacter purposes of showing absence of an accident. Cf. State v. Fedorowicz, 2002 UT 67, ¶ 30, 52 P.3d 1194 (concluding that the defendant had raised the defense of accident "despite not affirmatively presenting that defense in his case-in-chief" where he had told investigators that the child was injured accidentally and also questioned the State's witnesses about the possibility of accidental injury). The evidence would therefore be admissible for a proper noncharacter purpose.

The forcible sexual abuse statute under which Hildreth was charged requires that he acted "with the intent . . . to arouse or gratify the sexual desire of any person." Utah Code Ann. § 76-5-404 (2008).

B. Relevance Under Rules 401 and 402

¶ 42 Like all evidence, prior bad acts evidence must be relevant or it is inadmissible. See Utah R. Evid. 402. Relevant evidence is broadly defined as "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." Id. R. 401. In this case, the rebuttal evidence regarding B.B., M.W., and A.W. is relevant because it tended to show Hildreth's intent. It is therefore relevant and admissible under rules 401 and 402.

C. Prejudicial Versus Probative Value Under Rule 403

¶ 43 Rule 403 of the Utah Rules of Evidence provides, "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, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Id. R. 403. In State v. Shickles, 760 P.2d 291 (Utah 1988), the Utah Supreme Court outlined several guiding factors to be considered in balancing the probative value of bad acts evidence against its prejudicial effect. See id. at 295-96. These Shickles factors include the following:

[(1)] the strength of the evidence as to the commission of the other crime, [(2)] the similarities between the crimes, [(3)] the interval of time that has elapsed between the crimes, [(4)] the need for the evidence, [(5)] the efficacy of alternative proof, and [(6)] the degree to which the evidence probably will rouse the jury to overmastering hostility.

Id.

¶ 44 We conclude that, on balance, the Shickles factors weigh in favor of exclusion of the prior bad acts evidence. First, the strength of the evidence involving B.B., M.W., and A.W. is relatively weak, particularly given that Hildreth was acquitted of those charges, thus undercutting the credibility of the women's testimony. Cf. Nelson-Waggoner, 2000 UT 59, ¶ 31, 6 P.3d 1120 (acknowledging that while the victim's prior bad acts testimony was not necessarily inadmissible, it "was suspect because defendant had already been acquitted of the alleged rape to which she testified" (emphasis added)). Second, as discussed in Part I, the prior bad acts are not sufficiently similar to the conduct involving C.W. Third, the interval of time that had elapsed between the prior bad acts and the incident involving C.W. is fairly lengthy. But see State v. Marchet, 2009 UT App 262, ¶ 45, 219 P.3d 75 (upholding the trial court's decision that two-year time difference between another bad act and alleged crime was sufficiently proximate to warrant admission). With respect to the final factor, the cumulative prior bad acts evidence may have the tendency to suggest a verdict on an improper, emotional basis.

This is undoubtedly true as to A.W. because the incident involving her occurred a full three years prior to the C.W. incident.

¶ 45 The other two Shickles factors — factors four and five — tend to weigh in favor of admission of the prior bad acts evidence. Particularly, given that the incident involving C.W. is a "he said/she said" situation, there would be a need for the prior bad acts evidence. See Nelson-Waggoner, 2000 UT 59, ¶ 30, 6 P.3d 1120 (stating that "the need for the bad acts evidence was great" where the defense was consent and the trial involved a "contest of credibility" between the accuser and the accused). Moreover, "no alternative evidence regarding consent exist[s] other than [C.W.]'s and [Hildreth]'s directly conflicting testimonies." See id.

We note, however, that in sexual assault cases where the defense is that the victim "consented," this will almost always be the case.

¶ 46 On balance, however, the majority of the Shickles factors weigh in favor of exclusion of the prior bad acts evidence. Moreover, given the nature of the State's case vis-a-vis C.W., we conclude that any possible probative value of the evidence would be substantially outweighed by the danger of unfair prejudice to Hildreth. Because we conclude that all of the prior bad acts evidence would not properly come in at a trial on the charges concerning only C.W., we readily conclude there was prejudice, as defined in the severance statute. On that basis, we reverse and remand for a new trial on the charges relating to C.W.

CONCLUSION

¶ 47 We conclude that the trial court exceeded its permissible range of discretion in denying Hildreth's motion for severance and that Defendant was prejudiced thereby. Accordingly, we reverse Hildreth's convictions and remand for a new trial. On remand, the prior bad acts evidence relating to B.B., M.W., and A.W. should be excluded.

¶ 48 I CONCUR: GREGORY K. ORME, Judge.