THORNE, Judge:
¶ 1 Defendant Echo J. Nielsen was charged with child abuse homicide, a third degree felony, see Utah Code Ann. § 76-5-208 (2003), and reckless endangerment, a class A misdemeanor, see id. § 76-5-112. Nielsen seeks interlocutory review of the district court's denial of her motion to quash the bindover on those charges. We affirm.
¶ 2 The background in this case is the same as in the companion case of State v. Merrill, 2012 UT App 3, ¶¶ 2-5, 269 P.3d 196, issued concurrently with this opinion. In addition to the background in the companion case, we include the following information relevant to Nielsen's 404(b) argument.
¶ 3 Before the preliminary hearing, the State submitted a rule 404(b) motion to admit evidence of the previous co-sleeping death of Nielsen and Merrill's infant daughter caused by asphyxiation by overlay. At a motion hearing, the magistrate and the attorneys discussed whether the State's 404(b) motion was an issue for the district court or the magistrate in a preliminary hearing. The magistrate determined that he could make a 404(b) determination for the purpose of the preliminary hearing, acknowledging that the determination would not be binding at trial in the district court. After considering the parties' arguments, the magistrate ruled that for purposes of the preliminary hearing he would allow evidence of the previous infant's death if the State demonstrated at that hearing a proper noncharacter purpose for the admission of the circumstances surrounding that death. The magistrate determined that because there is no jury at the preliminary hearing stage the probative value of the evidence outweighed the danger of unfair prejudice.
¶ 4 At the preliminary hearing, Dr. Edward A. Leis testified regarding the cause and manner of the second infant's death. During his testimony, Dr. Leis stated that he listed the infant's co-sleeping in the same bed with his parents as a sub-diagnosis and mentioned that a sibling had been found dead while co-sleeping with the parents previously. Nielsen's defense attorney objected, arguing that the State had not established a non-character purpose for introducing that evidence. The State responded that the evidence of the first co-sleeping death was being offered to prove the mens rea element of the charges. The State argued that the death of the first infant was an opportunity for the defendants to learn about the risks of co-sleeping with an infant and such evidence was relevant to determine whether the defendants were or ought to have been aware of the risk. Nielsen's defense attorney argued several of the Shickles factors, asserting that the circumstances between the deaths were different, that there was a three year interval of time between the deaths, and pointing out that a previous infant's death is highly charged emotional evidence that may induce a jury to reach a verdict based on non-legal factors.
¶ 5 The magistrate ruled that the evidence of the sibling's co-sleeping death was admissible, and ultimately bound Nielsen and Merrill over for trial on both charges. Both Nielsen and Merrill asked the district court to quash their bindovers, arguing insufficiency of the evidence. In addition, Merrill raised other constitutional issues. The district court conducted oral arguments on the defendants' motions to quash. The court determined that the State had met its low burden at the preliminary hearing and denied the defendants' motions to quash. Nielsen now appeals.
¶ 6 Nielsen first challenges the district court's denial of her motion to quash the
¶ 7 Nielsen argues evidentiary issues raised and rejected in the companion case, see State v. Merrill, 2012 UT App 3, 269 P.3d 196.
¶ 8 Utah Rule of Evidence 404(b) provides, as follows,
Utah R. Evid. 404(b). This list is not exhaustive and "evidence demonstrating other purposes is not precluded so long as the evidence is offered for a legitimate purpose other than to show the defendant's propensity to commit the crime charged." State v. Allen, 2005 UT 11, ¶ 17, 108 P.3d 730.
¶ 9 A three-part test determines whether evidence is admissible under rule 404(b). See Burke, 2011 UT App 168, ¶ 27, 256 P.3d 1102. "First, we must determine whether the evidence is admissible for a proper, noncharacter purpose under rule 404(b)." Id. Second, we consider whether the evidence is relevant under rules 401 and 402. "Evidence is relevant if it tends to prove some fact that is material to the crime charged[,] other than the defendant's propensity to commit crime." Id. ¶ 33 (alteration in original) (citations omitted). And finally, "we must decide whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice under rule 403." Id. ¶ 34 (citations omitted). We examine each of these criteria in turn.
¶ 10 Nielsen asserts that the evidence of the prior infant's death was not admitted for a proper, noncharacter purpose. Specifically, Nielsen argues in her brief that because she "did not claim [that the infant's] death [in the instant case] was the result of
¶ 11 Rule 404(b) allows prior bad act evidence in a criminal trial "where it is offered to show any element of the alleged crime. Prior bad act evidence is only excluded where the sole reason it is being offered is to prove bad character or to show that a person acted in conformity with that character." State v. O'Neil, 848 P.2d 694, 700 (Utah Ct.App.1993) (first emphasis added); see also State v. Doporto, 935 P.2d 484, 490 n. 4 (Utah 1997) (noting that the categories of 404(b) are not exclusive and "[p]rior crime evidence may be used if specially relevant to any material element of the crime charged").
¶ 12 Here, the State is offering the evidence to show (1) Nielsen's knowledge about the risk and (2) the degree of that risk to the infant, two of the essential elements of both the child abuse homicide and reckless endangerment charges. First, offering evidence to prove knowledge is a proper, noncharacter purpose. See Utah R. Evid. 404(b); see also State v. Kooyman, 2005 UT App 222, ¶ 24, 112 P.3d 1252 (finding knowledge to be a proper noncharacter purpose and citing State v. Ramirez, 924 P.2d 366, 369 (Utah Ct.App.1996), for its discussion about knowledge as an appropriate noncharacter reason to admit prior bad act evidence). Thus, we determine that the evidence may be admissible to show Nielsen's knowledge of the risk.
¶ 13 Second, prior bad act evidence "may be used if specially relevant to any material element of the crime charged." Doporto, 935 P.2d at 490 n. 4. In the instant case, the State offered the previous infant's death to demonstrate both knowledge and the nature and degree of the risk. Nielsen's knowledge of the risk and the nature and degree of the risk are statutorily required elements of both the child abuse homicide and reckless endangerment charges. See Utah Code Ann. § 76-5-208 (child abuse homicide); id. § 76-5-112 (reckless endangerment). As a result, we determine this evidence may also be admissible to demonstrate the statutorily required elements for which the State offered the evidence. We therefore conclude that the death of the previous infant might properly be admitted into evidence for a proper, noncharacter purpose under rule 404(b) to demonstrate both Nielsen's knowledge of the risk as well as the degree of risk to the second infant.
¶ 14 We next determine whether the evidence of the previous co-sleeping death is relevant. Only relevant evidence, as defined in rule 401, is admissible under rule 402 of the Utah Rules of Evidence. See Utah R. Evid. 402.
State v. Burke, 2011 UT App 168, ¶ 33, 256 P.3d 1102 (alterations in original), cert. denied, 263 P.3d 390 (Utah 2011). Our analysis of the second part of the 404(b) test necessarily includes an overview of the elements of child abuse homicide and reckless endangerment, the crimes at issue in this case. The child abuse homicide statute provides that a person commits child abuse homicide "if she inflicts serious physical injury on a child . . . . [intentionally, knowingly,] recklessly[, or with criminal negligence] and the injury result in the child's death. . . ." State v. Killpack, 2008 UT 49, ¶ 24, 191 P.3d 17; see also Utah Code Ann. §§ 76-5-208, 76-5-201; id. § 76-5-109(2)(b) (Supp. 2006). A person engages in conduct with
Utah Code Ann. § 76-2-103(4) (2003) (emphasis added). Similarly, a person commits the offense of reckless endangerment if "under circumstances not amounting to a felony offense, the person recklessly engages in conduct that creates a substantial risk of death or bodily injury to another person." Id. § 76-5-112(1) (emphasis added). A person engages in conduct recklessly
Id. § 76-2-103(3) (emphasis added).
¶ 15 Nielsen asserts that because evidence of the previous death was not relevant, the only reason to seek admission of that evidence was to encourage the magistrate to find probable cause notwithstanding the lack of causation evidence, because the previous co-sleeping death suggests that Nielsen might have a propensity toward unsafe co-sleeping. The State argues that evidence related to the previous infant's death demonstrates that Nielsen knew at the time she decided to co-sleep, and allow Merrill to co-sleep, with their infant son that she and Merrill were heavy sleepers that had not been awakened until after they had previously accidentally caused the death of an infant daughter by co-sleeping. The State argues that this evidence makes it more likely that Nielsen acted with the knowledge that co-sleeping with her infant son, and allowing Merrill to do so as well, put the infant son at risk. We agree with the State that evidence of Nielsen's knowledge is thus relevant.
¶ 16 Lastly, we must determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice under rule 403 of the Utah Rules of Evidence according to the factors, originally enumerated in State v. Shickles, 760 P.2d 291 (Utah 1988).
Shickles, 760 P.2d at 295-96.
¶ 17 Considering the first factor, the strength of the evidence involving the previous infant's co-sleeping death is reasonably strong. Dr. Leis, the deputy chief medical examiner, performed the autopsy of the first infant.
¶ 18 Applying the second factor, the similarities between the two incidents are that both infants, given each of their ages, would have been incapable of rolling over, and were allegedly each put to sleep on their back between Merrill and Nielsen.
¶ 19 Reviewing the third factor, the interval of time between the two incidents is sufficiently proximate to be highly probative. The second infant's death occurred approximately three years after the first death. Knowledge about the circumstances of the first death would be painfully fresh. See generally Marchet, 2009 UT App 262, ¶ 45, 219 P.3d 75 (upholding the trial court's decision that a two-year time interval between incidents was sufficiently proximate to warrant admission); see also State v. O'Neil, 848 P.2d 694,
¶ 20 Next we consider the fourth and fifth factors—the need for the evidence and the efficacy of alternative proof. The 404(b) evidence was necessary to establish Nielsen's knowledge of the risk, pertinent to a determination of the likelihood that the co-sleeping was done in either a reckless or criminally negligent manner. The evidence was also required for an analysis of whether Nielsen's failure to perceive that risk constituted a gross deviation from the standard of care that an ordinary person would exercise in all the circumstances as viewed from the actor's standpoint. Evidence of the previous infant's death is the only evidence that would give a complete and detailed account of the circumstances preceding the second infant's death, as viewed from Nielsen's standpoint.
¶ 21 Sixth, regarding the degree to which the evidence probably may rouse the fact-finder to overmastering hostility, we observe that the evidence was admitted for the limited purpose of the preliminary hearing.
¶ 22 We determine that each of the Shickles factors weigh in favor of admission of the 404(b) evidence and conclude that the district court did not abuse its discretion in refusing to quash the bindover.
¶ 23 The State offered the evidence of the prior infant's death for the proper, noncharacter purpose of proving knowledge. Evidence related to the previous infant's co-sleeping death is relevant because such evidence makes it more probable that Nielsen acted with the knowledge that co-sleeping with her infant son, and allowing Merrill to do so, put this infant at risk. On balance, the Shickles factors weigh in favor of admission of the evidence.
¶ 24 Additionally, Nielsen raises the same evidentiary arguments resolved in State v. Merrill, 2012 UT App 3, 269 P.3d 196, the companion case. Therefore, we resolve her evidentiary arguments in the same way and deny Nielsen's sufficiency of the evidence claims. As a result, we conclude that the district court did not abuse its discretion in refusing to quash the bindover. Affirmed.
¶ 25 WE CONCUR: CAROLYN B. McHUGH, Presiding Judge and GREGORY K. ORME, Judge.
The State proffered testimony of Officer Chase that when she encountered Merrill in the home, he had a bloody nose and blood on his shirt and had explained that his father had given him the bloody nose, and that Officer Chase would testify that "Merrill told Officer Chase that he had the baby, . . . on his chest and that when [Merrill] woke up, that's when he realized the child wasn't breathing." The State further proffered that Detective Van Wagoner would testify that