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State v. Gallegos, 2020 UT App 162 (Dec. 10, 2020)

Dec 10, 2020

After a shank was found in the cell he shared with another prisoner, Gallegos was tried and convicted for felony possession of a dangerous weapon. On appeal, Gallegos challenged the admission of evidence showing he previously possessed a nearly identical shank as forbidden propensity evidence under Utah R. Evid. 404(b)(1).  Despite a line of Utah cases suggesting that evidence of prior possession of similar contraband by the defendant is a relevant factor indicating constructive possession, the court of appeals agreed with Gallegos and reversed.  The court held that evidence of prior possession of similar contraband by the defendant is admissible to show constructive possession only if the proponent can offer some non-propensity purpose under rule 404(b)(2).