ROTH, Judge:
¶ 1 Verbery Adams appeals his conviction following a bench trial for attempted murder, a first degree felony. Adams contends that the trial court erroneously admitted into evidence a fourteen-year-old conviction for murder in violation of Utah Rule of Evidence 404(b)'s notice and noncharacter purpose requirements. See Utah R. Evid. 404(b). We affirm.
¶ 2 On October 4, 2008, Adams attended a party at an apartment complex where he and Allan Saena got into a fight. Allan, who was very intoxicated, punched Adams because Adams was talking to "one of [Allan's] girls." Others joined the brawl until approximately five men were engaged in beating Adams. Eventually, the fight broke up and Adams ran to his car, an SUV. As Adams was driving past the apartment building, Allan's cousin, Gary Saena, and Gary's fiancee, Jennifer Tafi, walked across the street. Adams hit Gary with his vehicle, clipping his left hip and causing him to roll over the hood of the car. Gary managed to land on his feet, and he and a couple others chased Adams on foot. Allan, who had witnessed Adams hit his cousin, ran in front of Adams's car and began pounding the hood in an effort to make Adams stop. Instead, Adams drove over Allan with the car.
¶ 3 Gary ran to Allan and lifted his head and upper body off the street. Adams circled the building and drove by the party again a "minute or two" later for the purpose, according to him, of picking up his girlfriend who had been left behind. When Gary heard Tafi screaming, however, he looked up to see Adams's car coming at him and Allan at approximately thirty to forty miles per hour. Gary then tried to "drag [Allan] out of the way so he wouldn't get hit, but th[e car] . . . caught [Allan's] legs a second time," driving over them at about the knees.
¶ 4 A security officer for the apartment complex was driving behind Adams when he came around the building for a second time. He testified that he did not witness Adams's vehicle strike anyone nor did he see anyone lying in the road. Adams continued driving but stopped some distance past the group that had gathered around Allan. The security officer parked his car in front of Adams's and got out to speak with him. When Adams reported that he had been assaulted, the security officer instructed him to wait in his car while the security officer went back to speak with other witnesses. After the security officer departed, Adams left the scene in his vehicle. The other witnesses told the security officer that Adams had struck Allan with his car, and at that point, the security officer observed an injured male lying in the grass. Allan was treated at the hospital for injuries consistent with his being run over by a vehicle at least once and not inconsistent with being struck twice. His most severe injuries included a broken pelvis, a broken right femur, several fractures to the vertebrae, two broken ribs, a broken left collarbone, and a lung contusion. Allan was released from the hospital in a wheelchair two-and-a-half weeks later. He spent three months in the wheelchair and another two months using a walker.
¶ 5 Adams was charged with two counts of attempted murder: a first degree felony charge for intentionally or knowingly attempting
¶ 6 Approximately five months before trial, the State notified defense counsel that it intended to "introduce [Adams]'s 1995 Murder conviction [for killing someone with his vehicle] in the State of Illinois . . . to establish knowledge, intent, and absence of mistake or accident in the event that [Adams] testifie[d] at the trial and put[] his knowledge or intent at issue." On the morning of the bench trial, the State moved to admit a certified copy of Adams's conviction under rule 404(b) of the Utah Rules of Evidence. Over the defense's objection, the trial court determined that the conviction was admissible, observing that if the case were before a jury, the court "probably wouldn't allow it" but that admission "would [not] be prejudicial in terms of [the court] being the [factfinder] in this case." The court then cautioned the parties that it was concerned with "what transpired on October 4, 2008," not fourteen years earlier.
¶ 7 During trial, an investigating officer testified that in the course of an interview with Adams following the October 4 incident, Adams had mentioned an incident in Chicago in 1995 in which he had hit a person with his vehicle. Defense counsel objected to this testimony, arguing that it was "hearsay" and that "the State has other methods of introducing this." At that point, the State offered a certified copy of a statement of conviction for murder in Illinois in 1995; the court overruled Adams's objection to the officer's testimony, stating that it had "already told [the prosecutor] that [it] w[ould] allow" the conviction in evidence. The defense raised no objection to the certified copy of the statement of conviction itself, either as to its admissibility in general or as to the fact that the State had offered it in its case-in-chief rather than, as its notice had stated, in rebuttal in the event that Adams testified and raised the issue of his intent. The court admitted the statement of conviction "to the extent it may or may not be helpful." Once the 1995 conviction was admitted, the State indicated, "[W]e're not going to talk about that Chicago incident," and did not question the officer further regarding the conviction. The only other mention of the prior conviction occurred during the State's closing argument when the prosecutor stated that, based on the circumstances of this case and his prior conviction for murder with a vehicle, a "car is just [Adams's] preferred weapon."
¶ 8 In a detailed ruling from the bench, the trial court convicted Adams of first degree attempted murder but acquitted him of the second degree attempted murder charge. The court did not mention the prior conviction in its ruling. Adams now appeals the trial court's decision to admit the fourteen-year-old conviction for murder in Illinois.
¶ 9 Adams contends that the trial court erred in admitting the prior conviction both because the State failed to give reasonable notice of its intent to introduce bad acts evidence and because it was presented to show propensity rather than for a noncharacter purpose. See generally Utah R. Evid. 404(b) (allowing prior convictions to be admitted for noncharacter purposes provided that the State give the defense notice of its intention to introduce such evidence). We review a trial court's evidentiary rulings under rule 404(b) for abuse of discretion. See State v. Nelson-Waggoner, 2000 UT 59, ¶ 16, 6 P.3d 1120. "We will reverse an erroneous evidentiary ruling only if, absent the error, there is a reasonable likelihood that there would have been a more favorable result for the defendant." State v. Kohl, 2000 UT 35, ¶ 17, 999 P.2d 7 (internal quotation marks omitted).
¶ 11 On appeal, Adams has raised serious issues about the admissibility of the fourteen-year-old prior conviction. We do not address that issue here, however, because any error in admissibility was harmless.
¶ 12 This case was tried not to a jury, but to the court. Although the nature of the proceedings should not affect
State v. Featherson, 781 P.2d 424, 431 (Utah 1989) (quoting State v. Park, 17 Utah.2d 90, 404 P.2d 677, 679 (1965)); see also State v. Real Property at 633 E. 640 N., 942 P.2d 925, 930 (Utah 1997) (stating that the risk of unfair prejudice from wrongly admitted evidence is "primarily of concern during a jury trial"). The trial judge, in fact, seemed to have had just this presumption in mind when he alluded to the fact that he would not have admitted the prior conviction in a jury trial but that its admission "would [not] be prejudicial in terms of [the court] being the [factfinder] in this case." And with this presumption in mind, we now consider whether there is "a reasonable likelihood that [in the absence of any error in admission,] there would have been a more favorable result for the defendant." Kohl, 2000 UT 35, ¶ 17, 999 P.2d 7 (internal quotation marks omitted).
¶ 13 Adams acknowledges the presumption that trial judges recognize the responsibility and have the commensurate ability to appropriately weigh and consider evidence—even evidence that should not have been admitted— as a general tenet but argues that, in this case, the presumption is unwarranted. In particular, Adams contends that the trial court's admission of the evidence "demonstrates that the prior conviction was considered in Adams'[s] guilt determination."
¶ 14 To support his contention, Adams relies on the Illinois decision in People v. Naylor, 229 Ill.2d 584, 323 Ill.Dec. 381, 893 N.E.2d 653 (2008), and the Massachusetts decision in Commonwealth v. Darby, 37 Mass.App.Ct. 650, 642 N.E.2d 303 (1994). Both cases recognize the general presumption that a trial judge, sitting as the finder of fact, considers the evidence for its proper worth. See Naylor, 323 Ill.Dec. 381, 893 N.E.2d at 665; Darby, 642 N.E.2d at 306-07. In each, however, the reviewing court determined that the presumption had been rebutted because the inadmissible evidence actually factored into the trial court's determination of the defendant's guilt. See Naylor, 323 Ill.Dec. 381, 893 N.E.2d at 666-67; Darby, 642 N.E.2d at 306. Although we agree that Naylor and Darby set forth the law appropriately, the facts of this case make those decisions less helpful to Adams's position.
¶ 15 In Naylor, the Illinois Supreme Court observed that "[w]here an objection has been made to the evidence and overruled, it cannot be presumed that the evidence did not enter into the court's consideration. The ruling itself indicates that the court thought the evidence proper." 323 Ill.Dec. 381, 893 N.E.2d at 666. Because the trial court admitted inadmissible evidence, the Naylor court reversed the defendant's conviction. See id., 323 Ill.Dec. 381, 893 N.E.2d at 667. Adams argues we must take the same approach here. Although we do not disagree with the principle set forth in Naylor, the court's language must be understood in context. There, the government moved to admit a prior conviction for aggravated battery that occurred in December 1990 for the purpose of impeaching the defendant's credibility.
¶ 16 In the Massachusetts Appeals Court's decision in Darby, the trial court had erroneously admitted highly prejudicial and irrelevant photographs in a bench trial. See 642 N.E.2d at 304-05. The court of appeals reversed. See id. at 307. In so doing, the court recognized the standard presumption regarding the ability of trial judges to deal appropriately with inadmissible evidence, noting that "where the fact finder is a judge, not a jury, . . . [a] departure from usual procedure is not likely to be prejudicial." See id. at 306 (omission and alteration in original) (internal quotation marks omitted). Indeed, it recognized that while a "judge, sitting without a jury, in ruling upon the admissibility of evidence, will at times hear or see matters that would be excluded from a jury's consideration," review of that inadmissible evidence is not necessarily prejudicial. See id. at 306. The court, however, distinguished the situation where the "judge has not indicated whether he or she has considered improperly admitted evidence":
Id. (omission in original) (citation and internal quotation marks omitted). The Darby court reversed the defendant's conviction because the evidence of the defendant's guilt was "not overwhelming" and because the trial court had determined that "the photographs had `some probative value'" but did not indicate what weight it actually gave to the photographs in convicting the defendant. See id.
¶ 17 The present case is distinguishable from both Naylor and Darby because in each of those cases, the trial court admitted the evidence without reservation, while the trial court here indicated on the record that, from the beginning, it gave little weight to the prior conviction. In considering the State's request for admission of Adams's prior conviction, the trial court recognized the potentially prejudicial impact the prior conviction may have had on a jury, but it did not think "it would be prejudicial in terms of [the court] being the [factfinder] in this case." The court assured the parties, however, that its "real concern during the course of this trial is what transpired on October 4, 2008," the date of the charged offense. When it actually admitted the statement of the prior conviction a relatively short time later, the trial court stated that the conviction would be admitted "to the extent it may or may not be helpful." Such an equivocal, even dismissive, statement at the time of admission appears
¶ 18 This conclusion finds significant additional support in the court's detailed ruling from the bench explaining its decision to convict Adams, where it evaluated the credibility of the witnesses, reconciled conflicting evidence, and set out the basis for its decision to convict on a single count of attempted murder. The court stated that it found Tafi's testimony that Allan had been struck twice to be very credible and that Gary's testimony corroborated Tafi's. The court also explained how it reconciled the inconsistencies between their testimonies and the security officer's, primarily by suggesting the security officer was not as close to Adams as he remembered being and that the court was unclear as to precisely when the security officer began following Adams. Finally, the court explained why it was convinced that Adams had the intent to kill Allan when he struck him a second time. It recognized that Adams "was probably angry" at being assaulted, but the court thought it was telling that Adams chose to flee rather than to cooperate with the security officer, concluding that Adams's own innocent explanation for having left the area was not credible. The court also found incredible Adams's explanation that he circled the building a second time to pick up his girlfriend, rather than just leaving the complex, and concluded that his actions were strong evidence of his criminal intent.
¶ 19 Further, the court acquitted Adams of attempted murder on the second count for his actions against Gary. Because there was some evidence to support a conviction on this count, the fact that the court did not convict Adams on this charge lends further support to our conclusion that the prior conviction did not influence the verdict. Cf. Commonwealth v. Darby, 37 Mass.App.Ct. 650, 642 N.E.2d 303, 306 n. 4 (1994) (placing no weight on the fact that the court also acquitted the defendant on two counts where "there was no evidence whatsoever as to those [counts]" (emphases added)).
¶ 20 Because the record indicates that the trial court was not improperly influenced by Adams's prior conviction, we conclude that there is little likelihood of a different verdict had the evidence not been admitted and any error in its admission was therefore harmless.
¶ 21 Adams also contends that he was prejudiced because the prior conviction was admitted in violation of the State's rule 404(b) notice, which indicated that the State would introduce the prior conviction only if Adams testified and put intent or knowledge at issue. Because this issue was not preserved below, we review it for plain error.
¶ 22 To succeed on a claim of plain error, a defendant must show that there was an error, that it was obvious, and that it was prejudicial. See State v. Low, 2008 UT 58, ¶ 20, 192 P.3d 867. Because we conclude that any error that may have occurred was not harmful, we do not address whether an error occurred that should have been obvious to the trial court.
¶ 23 Adams claims that his defense was prejudiced as a result of the State's failure to
¶ 24 Finally, Adams asserts that the error in notice is of such a nature that the burden should shift to the State to show that the error was harmless. As support for this contention, Adams relies on our supreme court's decisions in State v. Knight, 734 P.2d 913 (Utah 1987), a case in which the state failed to provide the defense with inculpatory statements made by key witnesses, see id. at 916, and State v. Bell, 770 P.2d 100 (Utah 1988), a case in which the state failed to provide adequate notice of the charges, see id. at 102. In those cases, the supreme court shifted the burden to the prosecution because (1) the record was of little assistance in discovering the magnitude of the prejudice to the defense or in understanding how defense counsel might have prepared differently for the case if it had adequate knowledge and (2) the defense had put on credible evidence that the errors did, in fact, impair the defense. See Bell, 770 P.2d at 106-07; Knight, 734 P.2d at 920-21. The issues in those cases, however, had been preserved for appeal. Here, we are reviewing the timing of the introduction of the prior conviction for plain error. The burden of establishing plain error is on the party asserting it. See Low, 2008 UT 58, ¶ 20, 192 P.3d 867. Nothing that Adams has pointed to in Knight or Bell supports a change in that burden where plain error is at issue, and Adams has not otherwise persuaded us that such a change is warranted under the circumstances of this case.
¶ 25 Adams has failed to demonstrate that any error in the admission of his prior murder conviction during the prosecution's case resulted in prejudice to his defense. As a result, we affirm the conviction for first degree attempted murder.
¶ 26 WE CONCUR: CAROLYN B. McHUGH, Associate Presiding Judge and WILLIAM A. THORNE, JR., Judge.
Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b) and 609(a), 38 Emory L.J. 135, 158 (Winter 1989) (citing United States v. Powell, 587 F.2d 443, 447-49 (9th Cir.1978)). Even the prosecutor's closing argument statement in reference to the prior conviction—that a "car is just [Adams's] preferred weapon"—suggests propensity much more strongly than intent (or modus operandi, another proper noncharacter purpose). The trial judge's concern about the admissibility of this evidence was therefore well founded.