State v. Grist

W. JONES, J.

specially concurring:

I concur with the majority opinion; however, I write separately because I fail to see the clarifying picture that the majority seeks to paint.

I completely agree that “complete reliance upon propensity [evidence] is not a permissible basis for the admission of evidence of uncharged misconduct.” But, I disagree that this Court’s opinion in State v. Moore requires any clarification. This Court in Moore clearly stated that I.R.E. 404(b) does not allow for the admission of “[o]ther crimes, wrongs or acts” unless the evidence is offered for another purpose such as, “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” State v. Moore, 120 Idaho 743, 745 n. 2, 819 P.2d 1143, 1145 n. 2 (1991); I.R.E. 404(b). A very clear test was outlined in Moore:

A two-tiered analysis is used to determine the admissibility of evidence concerning uncharged misconduct. First, the evidence must be relevant to a material and disputed issue concerning the crime charged. Second, the court must determine whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant [pursuant to I.R.E. 403].

State v. Moore, 120 Idaho 743, 745, 819 P.2d 1143, 1145 (1991). Therefore, the trial court is to engage in three steps: (1) whether the evidence of another crime, wrong or act is being offered for a purpose other than to prove acting in conformity therewith; (2) whether the evidence is relevant to a materi*56al and disputed issue;4 and (3) whether the probative value of the evidence is outweighed by the danger of unfair prejudice. In Moore, the court did in fact engage in such an analysis: (1) Moore had been accused of prior sexual misconduct by abusing other young females and it was being offered to show a common scheme or plan to sexually exploit an identifiable group in an identifiable manner; (2) the evidence was relevant because it corroborated the victim’s story and the defendant had called the victim’s credibility into question; and (3) the probative value of offering the testimony outweighed any danger of unfair prejudice.5

This Court has also cautioned against an overly broad reading or interpretation of the principles of I.R.E. 404(b) in relation to child sex abuse cases. “We do not suggest today that any and all evidence of prior sexual misconduct is admissible in sex crime eases merely by placing it under the rubric of corroborative evidence of a common scheme or plan.” State v. Tolman, 121 Idaho 899, 905, 828 P.2d 1304, 1310 (1992). The Court of Appeals heeded that cautionary statement and interpreted Moore and Tolman “to be limited in their application to sexual abuse cases where other similar incidents of sexual misconduct by the defendant with the same or similar victims tends to corroborate a child victim’s version of the charged incident.” State v. Wood, 126 Idaho 241, 247, 880 P.2d 771, 777 (Ct.App. 1994). This interpretation was made in error. The evidence would be admissible under the test in any circumstance where evidence of other crimes, acts or wrongs is being offered for a purpose other than to prove acting in conformity therewith. In instances of sexual abuse cases the court must engage in the same analysis pursuant to I.R.E. 404(b) and I.R.E. 403. Therefore, I concur with the majority’s conclusion that “trial courts [must] treat the admission of evidence of uncharged misconduct in child sex crime cases no differently than the admission of such evidence in [any] other case[ ].”

. In Moore, the Court found the evidence relevant because the defendant was contesting the victim’s credibility. The Court found that corroboration evidence that verifies the victim’s story as relevant because of the degree of corroboration. That is, the other crimes showed the defendant exploits "young female children living within his household.” Moore, 120 Idaho at 745, 819 P.2d at 1145.

. As noted in the dissenting opinion, the majority in Moore only did a conclusory analysis of whether the probative value of the evidence outweighs any danger of unfair prejudice. In most cases the probative value will be outweighed by the danger of unfair prejudice; a court must engage in some form of analysis of how the probative value outweighs the prejudice.