State v. Cuttler , 802 Utah Adv. Rep. 20 ( 2015 )

This opinion is subject to revision before
publication in the Pacific Reporter
2015 UT 95IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Petitioner,
v.
JAMES ROBERT CUTTLER,
Respondent.
No. 20130919
Filed December 24, 2015
Fourth District, Provo Dep‘t
The Honorable Lynn W. Davis
No. 121402748
Attorneys:
Sean D. Reyes, Att‘y Gen., Jeffrey S. Gray, Asst. Att‘y Gen.,
Salt Lake City, for petitioner
Aaron P. Dodd, Provo, for respondent
Kent R. Hart, Salt Lake City, for amicus
Utah Association of Criminal Defense Lawyers
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
and JUSTICE DURHAM joined.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶ 1 The State charged the defendant, James Cuttler, with
vaginally raping and orally and anally sodomizing his then seven-
year-old daughter. To bolster its case, the State sought to
introduce evidence pursuant to rule 404(c) of the Utah Rules of
Evidence that in 1984 and 1985 Cuttler vaginally raped and orally
and anally sodomized his then eight- and ten-year-old daughters,
demonstrating ―a propensity to commit the crime[s] charged.‖
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UTAH R. EVID. 404(c)(1). Cuttler objected. He argued that such
evidence was inadmissible under rule ―404(c) because it [did] not
establish [such] a propensity‖ and was also inadmissible under
rule 403 because its probative value was ―clearly outweighed by
the danger of unfair prejudice.‖ The district court took a middle
tack. It reasoned that evidence of Cuttler‘s prior sexual abuse of
his other daughters met the propensity standard for admission
under rule 404(c) but did not pass rule 403 muster because the
evidence presented a danger of unfair prejudice that substantially
outweighed its probative value. Therefore, it ordered that the
evidence ―not be admitted.‖ We granted an interlocutory appeal
to review the district court‘s order.
¶ 2 Because the district court abused its discretion in two
ways, we reverse. First, the district court applied an incorrect legal
standard by requiring that the evidence of prior abuse
―overcome‖ the ―factors set forth in State v. Shickles[,] 760 P.2d 291(Utah 1988),‖ in order to satisfy rule 403. As we explained in State
v. Lucero, albeit in a slightly different context, ―courts are bound
by the text of rule 403, not the limited list of considerations
outlined in Shickles.‖ 2014 UT 15, ¶ 32, 328 P.3d 841. Thus, the
governing legal standard for evaluating whether evidence
satisfies rule 403 is the plain language of the rule, nothing more
and nothing less. And while the district court‘s adherence in this
case to the Shickles factors is understandable given our prior
pronouncements on this subject, it nevertheless represents an
application of the wrong legal standard and, therefore, an abuse
of discretion. See Johnson v. Johnson, 2014 UT 21, ¶ 24, 330 P.3d 704(―As such, the district court applied the wrong legal standard, and
in so doing, abused its discretion.‖).1
1 We are careful to say that the district court‘s systematic
application of the Shickles factors in this case is understandable.
Until this court‘s decision in State v. Lucero, 2014 UT 15, 328 P.3d
841, which postdates the ruling at issue here, this court
encouraged district courts to gauge the Shickles factors in
determining whether rule 404(b) evidence meets the requirements
of rule 403. See State v. Widdison, 2001 UT 60, ¶ 50, 28 P.3d 1278.
And the Advisory Committee Note to rule 404 suggests that the
district courts follow the same course with respect to rule 404(c)
evidence: ―The court should consider the factors applicable as set
(cont.)
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Opinion of the Court
¶ 3 Second, the district court also abused its discretion in
how it assessed the similarities between the evidence of prior
abuse and the current alleged abuse, as well as the potential
prejudice from, and time gap since, the evidence of prior abuse.
As we explain below, and by way of example, under the district
court‘s analysis the State would effectively be precluded from
ever introducing proof that a grandfather charged with sexually
molesting a granddaughter had previously sexually molested his
daughters in the same manner and when they were the same age
as the granddaughter. See infra ¶ 29. We will not handcuff the
prosecution from presenting evidence of intergenerational sexual
abuse in such a manner.
BACKGROUND
¶ 4 K.C. was seven years old when she went to ―her teacher
and school principal‖ and told them that Cuttler, her father, had
been sexually molesting her ―for the last month.‖ In subsequent
interviews at the Utah County Children‘s Justice Center, K.C.
alleged that when she goes to Cuttler‘s ―house on the weekends‖
to visit him, ―he locks the door . . . [and] takes off his pants‖ and
her pants and puts his penis, which he nicknamed ―his dolly,‖ in
her ―mouth,‖ ―butt hole,‖ and ―pee pee.‖
¶ 5 According to K.C., whenever she would ―play‖ with
Cuttler‘s penis, it would get ―stiff‖ and ―hard‖ and would
―stand[] straight up.‖ K.C. also told the interviewer at the
Children‘s Justice Center that sometimes ―a puky liquid‖ would
come out of his penis. She also described in detail for the
interviewer where and how the alleged abuse took place. Finally,
K.C. reported that Cuttler would tell her that if she ever told
anyone about the abuse, ―then they‘ll take—, then they call the
forth in State v. Shickles, 760 P.2d 291, 295–96 (Utah 1988) . . . .‖
However, even before Lucero, our appellate courts never required
that courts strictly hew to all of the Shickles factors in a rule 403
analysis. See State v. Allen, 2005 UT 11, ¶¶ 25–26, 28, 108 P.3d 730(rejecting an argument that because a district court did not
explicitly consider the Shickles factors, it erred when it admitted
prior bad acts evidence); State v. Harter, 2007 UT App 5, ¶ 30, 155
P.3d 116 (―The court need not identify each of the Shickles factors
in its analysis as long as we can discern that it made a sufficient
inquiry under rule 403.‖).
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police and take me [Cuttler] away‖ and the only reminders of him
that she would have would be the ―things he‘s given me [K.C.]
and pictures.‖
¶ 6 K.C.‘s allegations bear a considerable similarity to the
sexual abuse Cuttler inflicted on his daughters J.C. and W.C. years
earlier in Hurleyville, New York. It is undisputed that in 1984
Cuttler grabbed J.C., who was nine to ten years old at the time,
―by the nap[e] of the neck‖ and made her perform oral sex on
him.2 Afterwards, he twisted her arm behind her back and
―inserted [his] penis in her rectum.‖ Cuttler inflicted the same
sexual abuse on W.C. in 1985 when W.C. was eight years old.
Cuttler told the detective investigating his abuse back then that he
also believed he had inserted his penis into the girls‘ vaginas. He
further admitted that he had been sexually molesting at least
J.C.—and perhaps both girls—for ―more than a year.‖ Cuttler
referred to his penis by a nickname during this time period, too.
¶ 7 Based on K.C.‘s report, the State charged Cuttler with
two counts of rape of a child, two counts of sodomy upon a child,
and two counts of aggravated sexual abuse of a child, all first-
degree felonies. While he was being held in jail, Cuttler was
allegedly recorded telling K.C. ―that he was at the jail house,
‗where you put me . . . by talking to the police,‘ and further told
her that she won‘t ever see him again, . . . and that ‗I told you to
be quiet and not to talk about it.‘‖ And Cuttler later allegedly told
K.C. that he did not ―understand why you would tell that.‖
¶ 8 Early on in this case, the State lodged a Notice of Intent
to Introduce Evidence Pursuant to Utah Rules of Evidence 404(b)
and 404(c). The notice asserted that Cuttler had ―sexually abused
his biological daughters, W.C. and J.C., on an ongoing basis at
their home in Hurleyville, New York[,] on and before January 6,
1985.‖ The district court refused to admit the proffered evidence
under rule 404(b)(2) because it concluded that the evidence failed
2 The record indicates Cuttler began molesting J.C. when she
was nine years old and continued to molest her for ―more than a
year.‖
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STATE v. CUTTLER
Opinion of the Court
to satisfy the rule‘s requirements.3 And while it was of the opinion
that the evidence fell within the strictures of rule 404(c), the
district court nevertheless declined to admit the proffered
evidence under this rule because it felt, after applying the Shickles
factors, ―that the proffered evidence presents a danger of unfair
prejudice which substantially outweighs the probative value of
the evidence.‖
¶ 9 In response to the district court‘s decision, the State filed
a petition for permission to file an interlocutory appeal, which we
granted as to two issues. However, only the first issue presently
concerns us. See infra ¶ 14. It asks, ―Did the trial court apply the
correct legal standard when weighing the probative value of rule
404(c) evidence (prior child molestation) against the risk of unfair
prejudice under rule 403?‖ Our order granting the State
permission to appeal also requested ―that the parties address
whether the factors for evaluating [r]ule 404(b), set forth in State v.
Shickles, . . . should be reconsidered or revised.‖4
¶ 10 Prior to briefing, we handed down our decision in State
v. Lucero, making plain that it is the language of rule 403 and not
Shickles that governs whether a district court should exclude
404(b) evidence pursuant to rule 403. 2014 UT 15, ¶ 32, 328 P.3d
841. In recognition of this, both parties, as well as amicus curiae,
the Utah Association of Criminal Defense Lawyers, focused, in
part, on Shickles‘s role in the 404(c) context.
¶ 11 We have jurisdiction of this interlocutory appeal under
Utah Code section 78A-3-102(3)(h).
3 Since the resolution of the rule 404(b) issue does not affect the
outcome of this appeal, we decline to reach it in our analysis. See
infra ¶ 14.
4 While the first issue is phrased in terms of the application of
―the correct legal standard,‖ it is evident that the parties
understood our grant to also encompass the issue of whether the
district court properly applied the legal standard. The distinction
in phraseology is important because it implicates the standard of
review. See infra ¶ 12.
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STANDARD OF REVIEW
¶ 12 We afford district courts ―a great deal of discretion in
determining whether to admit or exclude evidence‖ and will not
overturn an evidentiary ruling absent an abuse of discretion.
Gorostieta v. Parkinson, 2000 UT 99, ¶ 14, 17 P.3d 1110. But whether
the district ―court applied the proper legal standard‖ in assessing
the admissibility of that evidence is a question of law that we
review for correctness. Chen v. Stewart, 2004 UT 82, ¶ 19, 100 P.3d
1177. And the admission or exclusion of evidence under the
wrong legal standard constitutes an abuse of discretion. Robinson
v. Taylor, 2015 UT 69, ¶¶ 8–21, 356 P.3d 1230; State v. Larkin, 443
S.W.3d 751, 807 (Tenn. Crim. App. 2013) (―We will find that a trial
court abused its discretion in admitting or excluding evidence . . .
when the trial court applied incorrect legal standards . . . .‖). A
trial court also abuses its discretion under rule 403 if its decision
to admit or exclude evidence ―is beyond the limits of
reasonability.‖ State v. Williams, 2014 UT App 198, ¶ 10, 333 P.3d
1287 (internal quotation marks omitted).
ANALYSIS
¶ 13 The State argues that the district court should have
admitted ―the prior child molestation evidence‖ under both rule
404(b) and rule 404(c). According to the State, it was entitled to
use the evidence pursuant to rule 404(b) ―to rebut a claim of
fabrication, i.e., to prove the actus reus of the crime,‖ and pursuant
to rule 404(c) to show Cuttler‘s propensity to sexually abuse his
daughters. The State further argued that rule 403 did not bar the
prior molestation evidence as the evidence was ―more probative
than prejudicial.‖ The district court determined that while the
evidence ―failed to meet the . . . requirements . . . to justify the
admission . . . under [r]ule 404(b),‖ it did satisfy rule 404(c).
Nonetheless, the district court excluded the evidence because it
did not ―overcome the hurdles presented by [r]ule 403 and the
Shickles factors as required under the Advisory Committee Note
attached to [r]ule 404(c).‖
¶ 14 We are of the opinion that the district court abused its
discretion in excluding the prior molestation evidence under rule
403. We are also of the opinion that this conclusion, combined
with the district court‘s determination that the evidence satisfied
rule 404(c), moots the need for us to examine the district court‘s
exclusion of the evidence under rule 404(b). Therefore, we focus
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STATE v. CUTTLER
Opinion of the Court
our inquiry on the district court‘s decision to keep the evidence
out based on rule 403.
I. THE DISTRICT COURT ABUSED ITS DISCRETION
IN EXCLUDING THE EVIDENCE OF CUTTLER‘S
PRIOR SEXUAL ABUSE UNDER RULE 403
¶ 15 To be clear, the issue before us is not whether the
evidence that Cuttler sexually abused his daughters in 1984 and
1985 is admissible under rule 404(c) ―to prove [Cuttler‘s]
propensity to commit the crime[s] charged in the present case.‖
The district court found that it is, and that finding is not before us
on appeal. Nor is the issue whether ―prior child molestation
evidence that is admissible under rule 404(c) is subject to rule
403.‖ The State concedes that it is. “The real inquiry,‖ to quote the
State, ―derives from the text of rule 403 itself‖ and is whether the
evidence‘s ―probative value is substantially outweighed by a
danger of . . . unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.‖ UTAH R. EVID. 403.
¶ 16 It is the State‘s position that the district court ―applied an
incorrect legal standard in weighing the probative value of the
rule 404(c) evidence under rule 403,‖ thereby abusing its
discretion. More specifically, the State argues that the district
court ―went wrong‖ in applying all of the Shickles factors without
regard to the ―nature of the evidence and the totality of the
circumstances in the individual case.‖5 In the words of the State at
oral argument, the district court ―erroneously excluded the rule
404(c) evidence . . . , and it did so by rigidly applying the Shickles
factors in its rule 403 analysis.‖ The State further contends that,
the standard aside, the district court misconstrued the factors.
5 The Shickles factors are as follows:
the strength of the evidence as to the commission of
the other crime, the similarities between the crimes,
the interval of time that has elapsed between the
crimes, the need for the evidence, the efficacy of
alternative proof, and the degree to which the
evidence probably will rouse the jury to
overmastering hostility.
State v. Shickles, 760 P.2d 291, 295–96 (Utah 1988) (quoting E.
CLEARY, MCCORMICK ON EVIDENCE § 190 (3d ed. 1984).
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¶ 17 We agree. First, the district court employed an incorrect
legal standard and, as a result, misapplied rule 403. And second,
even if this were not the case, it is our considered decision that the
district court‘s decision to exclude the evidence exceeded the
bounds of reasonableness and constitutes an abuse of discretion.
¶ 18 With respect to the first assigned error—the use of the
wrong legal standard—rule 403 instructs courts to exclude
evidence ―if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.‖ While
weighing the evidence under this rule, courts may consider many
factors, including some of those we identified in Shickles.
However, as we noted in State v. Lucero, in the context of rule
404(b), the Shickles factors should not limit the considerations of a
court when making a determination of evidence‘s admissibility
under rule 403. 2014 UT 15, ¶ 32, 328 P.3d 841. Instead, courts are
―bound by the text of rule 403,‖ and it is ―unnecessary for courts
to evaluate each and every [Shickles] factor‖ in every context. Id.Today, we make manifest Lucero and its logic to determinations
made under rule 404(c) as well.
¶ 19 Again, this is not to say that the Shickles factors, taken
individually, have no place in a rule 403 analysis. It may very well
be appropriate, for example, for a district court to consider the
similarities between the crimes in assessing probative value. And
it may also be appropriate for a district court to take stock of the
need for the evidence or the efficacy of alternative proof before
deciding whether evidence should be excluded under rule 403 as
cumulative or a waste of time. But it is not appropriate for a
district court to moor its rule 403 analysis entirely and exclusively
to all of the Shickles factors. In addition, it may be inappropriate
for a district court to consider some of the Shickles factors in
particular contexts. For example, it strikes us as inappropriate for
a court to discuss the need for the evidence or the efficacy of
alternative proof when the court is analyzing only whether that
evidence is unfairly prejudicial.
¶ 20 Finally, it is inappropriate for a district court to ever
consider whether evidence will lead a jury to ―overmastering
hostility.‖ The language of rule 403 requires only that evidence
not lead to unfair prejudice. Overmastering hostility is both a
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Opinion of the Court
stricter and looser metric by which to judge evidence under rule
403. Evidence may lead to prejudice in ways other than by
rousing a jury to overmastering hostility. Also, overmastering
hostility is much stronger language than the ―unfair‖ language
actually used in rule 403. Since the overmastering hostility factor
under Shickles is at best judicial gloss and at worst a substitute test
for evidence‘s admissibility under rule 403, we now make clear
that it is inappropriate for a court to consider the overmastering
hostility factor in a rule 403 analysis.6
¶ 21 Here, the district court relied exclusively on the Shickles
factors when determining the admissibility of the previous child
molestation evidence under rule 403. The district court required
the evidence to ―overcome the hurdles presented by [r]ule 403 and
the Shickles factors.‖ To this end, the district court proceeded to
analyze the rule 403 ―hurdles‖ solely within the context of the
Shickles factors. And while admittedly understandable in light of
some of our prior pronouncements, the district court‘s exclusive
reliance on the Shickles factors represents the kind of formalistic
analysis we expressed concern over in Lucero and does not give
due consideration to the actual text of rule 403. 2014 UT 15, ¶ 32.
This reflects an incorrect legal standard that constitutes an abuse
of discretion. Id.¶ 22 With respect to the second assigned error—the
misapplication of the Shickles factors—we note several ways in
which the district court improperly assessed the Shickles factors
in determining whether the previous child molestation evidence
was ―substantially outweighed by a danger of . . . unfair
prejudice.‖ UTAH R. EVID. 403.7
6
The problem with Shickles is that the factors were never
tethered to the specific inquiries that rule 403 allows. This has
resulted in courts sometimes asking the wrong questions in
assessing whether evidence satisfies rule 403. A focus on the
factors, as opposed to the language of rule 403, also increases the
risk that courts will fail to ask the right questions, questions not
found in Shickles, in assessing rule 404(b) and rule 404(c) evidence
under rule 403.
7 We recognize that under rule 403 a court also ―may exclude
relevant evidence if its probative value is substantially
(cont.)
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¶ 23 The district court, pursuant to Shickles, considered the
similarities between how Cuttler sexually abused J.C. and W.C.
and the present allegations regarding K.C. The district court
concluded that ―the similarities between the cases are no more
than arise in most, if not all, child sex abuse cases.‖ Given the
record on this matter, this conclusion is not reasonable.
¶ 24 It is evident that K.C.‘s account of her abuse is
considerably similar to the abuse suffered by J.C. and W.C.
Furthermore, these similarities are not just attributable to the
similarities observed among ―most, if not all, child sex abuse
cases‖ as the district court suggested. The unique similarities
between the cases include: (1) the father-daughter relationship
between Cuttler and J.C., W.C., and K.C.; (2) the gender and ages
(nine, eight, and seven years, respectively) of the daughters; (3)
Cuttler‘s alleged ―oral sodomy, anal rape, and vaginal
penetration‖ of each of the girls; (4) the prolonged time period
over which the molestation occurred; and (5) Cuttler‘s use of a
nickname for his penis. Moreover, the only difference considered
by the district court—that Cuttler‘s abuse of J.C. and W.C.
involved the use of force—was given too much weight and could
have been attributed to the most recent victim being a compliant
child. Thus, the force described in J.C.‘s and W.C.‘s abuse is not
significant enough to outweigh the significant similarities
between the incidents.8
outweighed by a danger of . . . confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.‖ The district court, however, focused only
on the question of whether the probative value of the evidence of
prior abuse substantially outweighed the danger of unfair
prejudice. And while defense counsel briefly alluded to the
evidence potentially causing ―confusion of the issues‖ and
―misleading the jury,‖ her argument focused on the allegation of
―severe prejudicial harm‖ to Cuttler.
8 At oral argument, the State acknowledged that it did not
intend to relate to the jury the acts of physical force Cuttler
inflicted on J.C. and W.C. as part of the rule 404(c) evidence. And
defense counsel conceded that absent those acts being
communicated to the jury, there was no rule 403 issue. In light of
these concessions, we bar the State, on remand, from relaying any
(cont.)
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¶ 25 Other courts have found sufficient similarities to permit
admission of such evidence in similar circumstances. In United
States v. Mann, 193 F.3d 1172 (10th Cir. 1999), the circuit court
permitted evidence of a previous child molestation offense under
rules 403 and 414 of the Federal Rules of Evidence. Federal rule
403 has the same standard of admission as Utah‘s rule 403;
evidence is permitted so long as ―its probative value is [not]
substantially outweighed by the danger of unfair prejudice.‖ Id. at
1173. In Mann, the similarities between the molestation incidents
were very similar to those found here:
(1) [the victims were] all defendant‘s great nieces;
(2) all three of the girls lived on or regularly came
within close physical proximity to defendant‘s
property during the time of the alleged abuse;
(3) defendant allegedly began to abuse each of the
girls when they were approximately the same age;
and (4) defendant allegedly had vaginal intercourse
with each child.
Id. at 1174. As such, the evidence of the previous child sex abuse
was admitted at the defendant‘s trial. Likewise, we are of the
opinion that the evidence of Cuttler‘s prior sexual abuse of J.C.
and W.C. should have been admitted in K.C.‘s trial, and it was
unreasonable for the district court to rule that such evidence was
not similar enough to meet the standard under rule 403.
¶ 26 Second, the district court seemed to improperly suggest
that because the previous child molestation evidence was
―permissible solely for propensity purposes,‖ this was a factor
that weighed against its need. However, rule 404(c)(1) explicitly
allows such evidence for the purpose of proving a defendant‘s
―propensity to commit‖ the child molestation with which he is
charged. See State v. Lintzen, 2015 UT App 68, ¶ 17, 347 P.3d 433(―[A]fter [r]ule 404(c), the accused‘s propensity is the reason for
admission . . . .‖) (internal quotation marks omitted); State v.
Jimenez, 2013 UT App 76, ¶ 8, 299 P.3d 1158 (―[I]n child
molestation cases such evidence may be admitted expressly for
propensity under rule 404(c).‖). So, even if the previous evidence
shows only propensity and does not, to quote the district court,
information to the jury regarding Cuttler‘s use of force on J.C. and
W.C.
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―go directly to the elements of the crimes charged,‖ this is not a
factor that weighs against the evidence‘s admissibility under rule
403.
¶ 27 Third, the district court‘s application of the concern that
―a jury, upon hearing evidence of a prior conviction for child sex
abuse, might have the tendency to base their verdict on an
improper and emotional basis‖ in the rule 404(c) context is
mistaken. To give rule 404(c) purpose, evidence of the prior
conviction by itself cannot be said to lead to unfair prejudice
automatically. In fact, ―[a]fter [r]ule 404(c), the accused‘s
propensity is the reason for admission and no longer constitutes
unfair prejudice.‖ Lintzen, 2015 UT App 68, ¶ 17 (first alteration in
original) (citation omitted). While child molestation convictions
have evidence that is emotionally charged and that may have the
potential to lead to unfair prejudice, the court can prevent this
danger of unfair prejudice by limiting the details admitted about
the previous conviction. A court may limit the evidence to that
which shows the defendant‘s propensity for child molestation,
rather than include unnecessary and emotionally charged details
about the abuse, such as other accompanying physical abuse. In
the present case, the district court may have properly excluded
the evidence about Cuttler‘s violent acts in relation to the abuse he
perpetrated on J.C. and W.C.9 This would have given effect to rule
404(c) by allowing the State to bring evidence of prior child
molestation acts to show Cuttler‘s propensity to molest K.C.,
while not presenting the jury with inflammatory details beyond
what is necessary or appropriate for it to consider when drawing
that propensity inference.
¶ 28 Finally, the district court expressed ―great concern‖ over
the twenty-seven-year time gap between the events occurring in
1984 and 1985 and the alleged abuse that took place in 2012. The
district court believed that the time gap ―present[ed] a strong
argument against admitting the . . . evidence.‖ However, this
concern is unreasonable given the facts of Cuttler‘s abuse. Cuttler
exhibited a propensity to abuse his daughters when they reached
prepubescent age. After Cuttler pled guilty to the child sex abuse
committed in 1984 and 1985, he spent nine years in prison. He
fathered K.C. in 2005 and began abusing her in 2012 when she
9 See supra ¶ 24 n.10.
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Opinion of the Court
was seven, only a year younger than W.C. when W.C. was
abused. As the Florida Supreme Court correctly noted, ―the
opportunity to sexually batter young children in the familial
setting often occurs only generationally and when the opportunity
arises.‖ McLean v. State, 934 So. 2d 1248, 1257 (Fla. 2006) (internal
quotation marks omitted). Cuttler‘s opportunity to sexually abuse
another prepubescent daughter did not arise until after K.C. had
been born and aged a few years. As such, the significance of the
twenty-seven-year time period between the incidents is greatly
reduced in this case. Furthermore, the district court‘s reasoning
would effectively preclude the State from ever introducing
evidence regarding intergenerational abuse.
¶ 29 To demonstrate this point, we use an example of a
grandfather charged with sexually molesting a granddaughter
and who had previously sexually molested his daughters in the
same manner when they were the same age as the granddaughter.
The opportunity for the grandfather to perpetuate abuse in a
similar familial relationship and age context would not arise until
twenty or thirty years after his initial abuse of the daughters. If the
prosecution were not allowed to bring in evidence of the prior
abuse simply because of the long period of time between the
incidents, then rule 404(c) would have no purpose in this all-too-
frequent context.10 We will not obstruct the prosecution from
introducing such intergenerational abuse evidence on this basis.
¶ 30 In conclusion, the district court‘s misapplication of the
above factors was unreasonable and we reverse.
CONCLUSION
¶ 31 The district court‘s exclusive reliance on the Shickles
factors represents an application of the wrong legal standard and
thus is reversible error. The court‘s rigid application of the Shickles
factors represents the same concern we had in Lucero over courts
not heeding the actual language of rule 403. In addition, the
district court‘s misapplication, in the context of rule 403, of (1) the
similarities between the past sexual abuse that Cuttler inflicted on
J.C. and W.C. and the current allegations of his sexual abuse of
10 See J.S. v. R.T.H., 714 A.2d 924, 933 (N.J. 1998) (―An
especially disturbing finding about child sexual abuse is its strong
intergenerational pattern . . . .‖ (citation omitted)).
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K.C., (2) the use of the evidence given its propensity purpose,
(3) the potential prejudice from the nature of the evidence, and
(4) the time gap between the acts of abuse was unreasonable.
Therefore, we reverse the district court‘s ruling and hold that the
evidence of Cuttler‘s past child molestation conviction was
admissible under rule 403.
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