State v. Lucero, 2014 UT 15 (May 13, 2014) 

Adopting the majority rule with respect to the admission of conditionally relevant evidence, the Utah Supreme Court upheld the admission of prior child abuse evidence. The defendant was charged with the murder of her son “after his back was bent backwards.” The State sought to introduce evidence of a prior similar injury, which the court admitted over objections that it did not satisfy rule 404(b), that it was irrelevant, and that the probative value was substantially outweighed by the danger of unfair prejudice. The court clarified that to admit evidence of prior bad acts for the purpose of identity under rule 404(b) there must be “‘(1) a very high degree of similarity between the charged and uncharged acts, and (2) a unique or singular methodology.’” Id. ¶ 15 (footnote citation omitted). Finding these criteria satisfied, the court then addressed whether the evidence was relevant, noting that it had not been definitively established that the defendant committed the prior abuse. On this point, the court acknowledged that under rule 104(b), the admissibility of prior abuse was conditional on whether the defendant committed the abuse, i.e., conditional relevance. The court explained that under rule 104(b), “it is the duty of the court to decide whether there is sufficient evidence upon which the jury could make such a determination” that the “condition of fact” is satisfied. Adopting the majority rule, the court held “that a preponderance of the evidence is required to admit evidence of prior bad acts.” Id. ¶ 2. Next, the court held that the prior evidence of abuse was not substantially outweighed by the danger of unfair prejudice given the similarity of injuries, short length of time between each injury, and the importance of the issue to the case.