State v. Holbert ( 2002 )

ORME, Judge

(concurring in the result in part):

¶ 72 There was no real dispute in this case concerning Defendant’s intent. Defendant did not claim he detained the victim with a dangerous weapon for some purpose other than to terrorize her. (Had he done so, evidence of the prior incident would be very telling indeed.) On the contrary, he claimed that she had the gun and he merely removed it to avoid a dangerous confrontation. Evidence of the prior incident of his serious aggression toward the victim compellingly undercuts the credibility of this contention. Thus, for the reasons more fully set forth in Judge Thorne’s opinion and my opinion in State v. Bradley, 2002 UT App 348, 57 P.3d 1139,1 believe the sounder basis on which to premise admission of the prior bad act evidence was to refute Defendant’s fabrication and justification defenses.

¶ 73 I also concur only in the result of Section II of the opinion. I find it wholly unnecessary to reach the issue of Defendant’s claimed abandonment of his apartment, as it is clear that admission of the data from his “caller i.d.” device was completely inconsequential to his conviction and, thus, harmless beyond a reasonable doubt.

¶ 74 I concur in the balance of the court’s opinion.