State v. Nielsen

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

State of Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20080857‐CA
)
v. ) FILED
) (January 6, 2012)
Echo J. Nielsen, )
) 2012 UT App 2
Defendant and Appellant. )

‐‐‐‐‐

Third District, West Jordan Department, 071400721
The Honorable Mark S. Kouris

Attorneys: Lori J. Seppi, Heather J. Chesnut, and Stephen W. Howard, Salt Lake
City, for Appellant
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

‐‐‐‐‐

Before Judges McHugh, Orme, and Thorne.

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.
 BACKGROUND

¶2 The background in this case is the same as in the companion case of State v.
Merrill, 2011 UT App 3, ¶¶ 2‐5, 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.

20080857‐CA 2
¶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.

ISSUES AND STANDARD OF REVIEW

¶6 Nielsen first challenges the district court’s denial of her motion to quash the
bindover arguing, that the State did not present evidence sufficient to establish probable
cause to believe that she committed the charged crimes. Significantly, Nielsen also
argues that the magistrate erred by considering prior bad act evidence in violation of
rule 404(b) of the Utah Rules of Evidence. “[A] trial court’s decision to admit evidence
under rule 404(b) . . . [is reviewed for] an abuse of discretion . . . .” State v. Burke, 2011
UT App 168, ¶ 17, 256 P.3d 1102 (alterations and omissions in original) (internal
quotation marks omitted), cert. denied, 263 P.3d 390 (Utah 2011).

ANALYSIS

¶7 Nielsen argues evidentiary issues raised and rejected in the companion case, see
State v. Merrill, 2011 UT App 3.1 For the reasons cited in the companion case, we reject

1
Nielsen raises fundamentally identical evidentiary claims as Merrill, but omits
the violation of equal protection and due process claims that Merrill raises on appeal.
In addition to Merrill’s evidentiary claims, Nielsen argues that “[i]f a hazardous
condition arose, it arose after Merrill came to bed and moved [the infant] from the
position [Nielsen] placed [him] in.” The entirety of Nielsen’s argument is contained in
three sentences. She does not provide any supporting authority or analysis. Nor does
she address the State’s argument that the decision to co‐sleep, and allow Merrill to co‐
sleep with the infant is sufficient to create liability irrespective of whether her physical
(continued...)

20080857‐CA 3
Nielsen’s evidentiary claims and do not consider them anew in this decision. In
addition, Nielsen also asserts that this court should reverse the district court’s decision
denying her motion to quash the bindover because the magistrate erred by considering
inadmissible evidence. Nielsen argues that evidence of the previous death of her infant
daughter was inadmissible under rule 404(b) of the Utah Rules of Evidence because it is
not relevant for a proper noncharacter purpose and because it is extremely prejudicial.

¶8 Utah Rule of Evidence 404(b) provides, as follows,

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, provided that upon request by the
accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial, or during trial if the
court excuses pretrial notice on good cause shown, of the
nature of any such evidence it intends to introduce at trial.

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. “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

1
(...continued)
acts resulted in the infant’s death. “Briefs must contain reasoned analysis based upon
relevant legal authority. An issue is inadequately briefed when the overall analysis of
the issue is so lacking as to shift the burden of research and argument to the reviewing
court.” Brussow v. Webster, 2011 UT App 193, ¶ 10, 258 P.3d 615 (internal quotation
marks omitted), cert. denied, No. 20110715 (Utah Nov. 28, 2011); see also Utah R. App. P.
24. Because this issue is inadequately briefed we do not consider it.

20080857‐CA 4
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.

I. Proper, Noncharacter Purpose

¶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 mistake
or accident,”2 evidence of the previous death by co‐sleeping was not admissible to
demonstrate that she was aware of or ought to have had knowledge about the risk
factors associated with co‐sleeping. The State claims that evidence of the prior infant’s
death is relevant to a determination of whether Nielsen acted either with criminal
negligence or recklessness, two of the culpable mental states sufficient to prove the
charged crimes. See Utah Code Ann. § 76‐5‐208 (2003) (providing that criminal
homicide constitutes child abuse homicide if the individual who committed child abuse
acted with criminal negligence, which necessitates proof that the individual so acting
ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the
result will occur); see also id. § 76‐5‐112 (providing that a person engages in conduct
recklessly when she is aware of but consciously disregards a substantial and unjustifiable risk
that the circumstances exist or the result will occur). The State argues that the evidence
is admissible to show that Nielsen had knowledge of the risks related to co‐sleeping
with the infant. The State also argues that the evidence is admissible to show that the
risk to the second infant was substantial and unjustifiable.

¶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)

2
In her brief, Nielsen further explains that “she did not claim [the infant’s] death
was the result of mistake or accident,” but instead that “she acknowledged that she had
some knowledge about the risk factors associated with co‐sleeping, but argued any risk
she took by co‐sleeping with [the infant] did not rise to the level of criminal negligence
and did not cause [the infant’s] death.”

20080857‐CA 5
(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.

II. Relevance Under Rules 401 and 402

¶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.

“‘Relevant’ 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.

20080857‐CA 6
 Evid.] 401. Thus, “[e]vidence 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.” State v.
Balfour, 2008 UT App 410, ¶ 24, 198 P.3d 471.

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

criminal negligence or is criminally negligent with respect to
circumstances surrounding [her] conduct or the result of
[her] conduct when [she] ought to be aware of a substantial and
unjustifiable risk that the circumstances exist or the result will
occur. The risk must be of a nature and degree that the
failure to perceive it constitutes 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.

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

when [she] is aware of but consciously disregards a substantial
and unjustifiable risk that the circumstances exist or the result
will occur. The risk must be of such a nature and degree that
its disregard constitutes a gross deviation from the standard
of care that an ordinary person would exercise under all the
circumstances as viewed from the actor’s standpoint.

20080857‐CA 7
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.

III. Probative Nature of Evidence Versus Prejudicial Effect Under Rule 403

¶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).3 See Utah R. Evid. 403. “Rule 403 does not require a trial court to

3
We observe that the magistrate did not expressly engage in the scrupulous
examination of the evidence by identifying each of the Shickles factors. The magistrate
did, however, make a sufficient inquiry under rule 403 of the evidence both at the
hearing considering the State’s motion to admit evidence pursuant to rule 404(b) and
during the preliminary hearing. See generally State v. Ferguson, 2011 UT App 77, ¶ 16,
250 P.3d 89 (“While [t]he court need not identify each of the Shickles factors in its
analysis, we must be able to discern that it made a sufficient inquiry under rule 403.”
(alteration in original) (internal quotation marks omitted)), cert. denied, 263 P.3d 1187
(Utah 2011). The parties presented arguments at various times at each of those hearings
pertaining to the three‐part test, including the Shickles factors to be applied to determine
whether evidence is admissible under rule 404(b). After such arguments, the magistrate
ruled to admit the evidence. Because Nielsen neither objected to nor challenges
whether the magistrate scrupulously examined the evidence, and the State proceeded to
show that the testimony was offered for the proper, noncharacter purpose of
(continued...)

20080857‐CA 8
dismiss all prejudicial evidence because [a]ll effective evidence is prejudicial in the
sense of being damaging to the party against whom it is offered.” State v. Marchet, 2009
UT App 262, ¶ 44, 219 P.3d 75 (alteration in original) (internal quotation marks
omitted). To determine whether the evidence’s probative value is substantially
outweighed by the prejudicial effect, the district court must consider the Shickles factors:

[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.

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.4 Dr. Leis, in his report of
examination of the first infant, determined that her accidental death was caused by
positional asphyxiation by overlay due to co‐sleeping in her parents’ bed.

¶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

3
(...continued)
knowledge, we conclude that the magistrate engaged in a sufficiently scrupulous
examination of the evidence. See generally State v. Holbert, 2002 UT App 426, ¶ 38 n.6, 61
P.3d 291 (discussing the scrupulous examination requirement).
4
The certification of the cause of death in circumstances such as in the first
infant’s death, wherein it appears that the infant’s death was “due to sudden infant
death syndrome,” may only be made by the medical examiner or his designated
representative. See Utah Code Ann. §§ 26‐4‐10, 26‐4‐7 (1998). “‘Medical examiner’
means the state medical examiner appointed pursuant to Section 26‐4‐4 or a deputy
appointed by the medical examiner.” Id. § 26‐4‐2(2) (Supp. 2006).

20080857‐CA 9
were allegedly each put to sleep on their back between Merrill and Nielsen.5 When the
parents awoke in each instance, the infant’s position had changed from the infant’s back
and each infant was found unresponsive in the face‐down position.

¶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
(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, 701
(Utah Ct. App. 1993) (considering a three‐year span between the defendant’s earlier
conviction and the alleged crime “a short period of time”).
¶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

5
Regarding the second infant’s sleeping position the State proffered testimony of
Detective Eric Anderson, Officer Michelle Chase, and Detective Alexis Van Wagoner.
The State asserts that Detective Anderson would testify that
[Merrill] said the baby was on his chest, but that [Nielsen]
told the detective that she took the child to bed with her, that
[Merrill] joined shortly after she took the child to the bed,
. . . . That [Nielsen] was on the right side and that [Merrill]
was on the left side and that [the child] was in between
them, on his back. And that they had laid a blanket on top
of [the child].
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
[s]he observe[d]—[Detective Van Wagoner] observe[d]
blood on the baby’s face and [Merrill] said the baby was on
his chest. It’s unclear from the police report whether that
means that the baby was on the baby’s chest or whether the
baby was lying chest‐to‐chest or that the baby was lying
with the baby’s back to the father’s chest. That’s unclear.

20080857‐CA 10
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.6 Because the evidence was admitted for the
limited purpose of the preliminary hearing, which does not involve a jury, we conclude
that at this stage of the proceeding the evidence does not unfairly prejudice Nielsen.
We express no opinion on whether the evidence would be admissible at trial for the
current offenses—an issue which is simply not before us.

¶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.

CONCLUSION

¶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.

6
The magistrate, in his oral ruling, determined that the evidence would be
probative for the purposes of the preliminary hearing. The magistrate also found that
the probative value outweighed the danger of unfair prejudice because the evidence
was admitted for the limited purpose of the preliminary hearing and there was no jury
at the preliminary hearing stage.

20080857‐CA 11
¶24 Additionally, Nielsen raises the same evidentiary arguments resolved in State v.
Merrill, 2011 UT App 3, 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.

____________________________________
William A. Thorne Jr., Judge

‐‐‐‐‐

¶25 WE CONCUR:

____________________________________
Carolyn B. McHugh,
Presiding Judge

____________________________________
Gregory K. Orme, Judge

20080857‐CA 12