State v. Lim

               THE UTAH COURT OF APPEALS

                       STATE OF UTAH,
                         Appellee,
                             v.
                     ADAM TAE KYUN LIM,
                         Appellant.

                            Opinion
                       No. 20190027-CA
                       Filed June 3, 2022

           Third District Court, Salt Lake Department
                The Honorable Vernice S. Trease
                  The Honorable Ann Boyden
                          No. 161909129

            Andrea J. Garland, Attorney for Appellant
               Sean D. Reyes and Jeffrey D. Mann,
                     Attorneys for Appellee

  JUDGE DAVID N. MORTENSEN authored this Opinion, in which
    JUDGE RYAN M. HARRIS concurred. JUSTICE DIANA HAGEN
                  concurred in the result.1

MORTENSEN, Judge:

¶1     Adam Tae Kyun Lim, a hospital nurse, was charged with
three counts of sexual abuse involving three different female
patients. The incidents took place over nearly seven years, with
over five years separating the first two incidents and almost two
years separating the second and third incidents. Despite the long


1. Justice Diana Hagen began her work on this case as a judge of
the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(3).
                           State v. Lim


period of time between the instances of alleged abuse and some
dissimilarities among the incidents, the State charged Lim in a
single information. When Lim moved to sever the counts for
separate trials, the district court denied the motion, and Lim was
tried and found guilty on the three counts in a single trial. Lim
appeals, alleging the court exceeded its discretion in failing to
grant his motion to sever. We agree with Lim. We reverse and
remand for new trials in which the counts are severed.


                        BACKGROUND2

                           First Incident

¶2      In January 2009, Allie3 was recovering at St. Mark’s
Hospital after undergoing surgery for complications related to
Crohn’s disease. Lim, who had been assigned as Allie’s nurse,
came into her room during the night while she was resting. He
left the lights off, “didn’t say anything,” and—while acting “like
he was checking things”—“inserted his fingers into [her] vagina”
and then “just left the room.”

¶3     Allie “was in shock initially,” but after Lim left, she woke
her mother, who was staying in the room with her, and told her
what happened. Her mother recalled that Allie “was distraught
and crying and very upset” as she told her “what was going on
with her.” Although Allie had been taking pain medications that
made her “tired” and “groggy,” she “definitely” knew “that
[Lim’s] hands went where they were not supposed to be.”

¶4     Allie filed a complaint with the hospital a few weeks later
“so that if it happened again,” the hospital “would know that this


2. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” State v.
Holgate, 

, 

 (cleaned up).

3. We employ pseudonyms in this opinion.


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                             State v. Lim


person did this and this was happening.” During the ensuing
investigation—which took place several years later after a third
incident that will be discussed below—an investigator with the
Utah Division of Occupational and Professional Licensing
(DOPL) interviewed Lim about the incident.4 Lim confirmed that
he had been in Allie’s room to evaluate her and give her
medications, that her mother had been in the room, and that the
overhead lights were off when he had evaluated Allie. He was
also aware that there had been a complaint that he had inserted
his fingers into her vagina, which he denied having done.

                           Second Incident

¶5     In February 2014, Bella was admitted to Intermountain
Medical Center (IMC) for an infection in her leg, which ultimately
required amputation above her knee. She testified that Lim had
been her nurse and that he was “very flirtatious” and told her that
she was “cute,” which made her “feel really uncomfortable.”

¶6      During the evening that she was recovering from her
surgery, Lim said he needed to check her catheter. Bella told him
that she did not “think it [needed] to be checked.” But Lim insisted
and proceeded to insert “his fingers inside of [Bella’s] vagina and
just started . . . moving all around, . . . jerking all around.” Bella,
who had been catheterized during prior hospitalizations, testified
that she had never had a caregiver touch her vagina or put a finger
in her vagina when checking a catheter. And although Bella was
on pain medication at the time of the incident, she stated that she




4. The DOPL investigation was triggered by a February 2016
complaint involving the abuse against another patient, Cora. Lim
was then connected to an earlier complaint DOPL had received in
May 2014 involving the abuse against yet another patient—Bella.
Lim’s employment records from St. Mark’s were then
subpoenaed, and the DOPL investigator discovered the complaint
Allie had made against Lim.


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                            State v. Lim


did not have “any doubt . . . at all” that Lim had inserted his
fingers into her vagina.

¶7     The following morning, Bella complained about the
touching, and the police came to her room to investigate. Lim
explained to the police officer that the “patient care tech” had told
him Bella’s “catheter was not working and that he had to pull on
the catheter to see if he could make it work.” Lim suggested that
“when he pulled on the rubber housing that it could have given
[Bella] the sensation that somebody was touching her vagina.”
Lim also explained to the DOPL investigator that because Bella
was having trouble breathing, she was sitting up at a ninetydegree angle to make it easier for her to breathe, which would
have made it difficult for him to touch her groin area. He also
suggested that Bella was “disoriented” due to the combination of
surgery, pain medication, and low oxygen. But the DOPL
investigator testified that there was nothing in Bella’s chart notes
to indicate a problem with the catheter, breathing, or Bella being
disoriented. Indeed, Lim eventually admitted to the investigator
that Bella was sitting at a forty-five-degree angle and that “[t]here
was no way that the leg could be elevated,” as expected after
surgery, had she been sitting straight up.

                           Third Incident

¶8      In December 2015, Cora was hospitalized at IMC for issues
related to colitis and Crohn’s disease. During New Year’s Eve
night, Lim, who was assigned as Cora’s nurse, entered her room,
shut the door, pulled the curtains, and “insisted” that “he had to
check” her EKG leads because one was “loose.” Cora, who said
she had “many EKGs” in the past and knew that “if something’s
wrong, then the alarm will go off,” described Lim’s behavior as
“not professional at all.” While putatively checking the EKG lead,
Cora said Lim began “fondling” her breast “back and forth . . .
[j]ust across the nipple.” Lim then immediately left the room.

¶9     Shortly after midnight, Lim entered Cora’s room again,
shut the door and curtain, and pulled two drinks from behind his



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                            State v. Lim


back to “have a toast.” Initially, Cora thought it was sparkling
grape cider but then suspected it was champagne. After Lim left,
she poured the remainder down the drain. Later, Lim returned to
Cora’s room to administer pain medication, after which he got
down to the level of the bed railing and “just stared” at Cora for a
“minute-and-a-half to two minutes . . . not saying anything, just
staring,” making Cora “very uncomfortable.”

¶10 Later, when staff from IMC called to see how her stay was,
Cora reported Lim’s behavior. In the ensuing investigation, Lim
admitted that he went to Cora’s room to fix the EKG lead. He first
denied touching Cora’s breast, but he later acknowledged that he
“may have done that by mistake.” Lim confirmed that he got
down on his knees to watch her because he needed to get eye level
with her. He also admitted to giving her a drink of sparkling apple
cider that was available at the nurse’s station. Lim opined that
Cora’s pain medications might have “alter[ed] her perception,”
leading her to lodge a complaint, but he admitted that she did not
appear to have “an altered perception” or to be “disoriented.”

                      Charges and Proceedings

¶11 Lim was charged in a single information with two counts
of object rape and one count of forcible sexual abuse. Before trial,
Lim moved the district court to sever the charges and grant
separate trials on each count, arguing that there was no common
scheme or plan to support joinder and that joinder would
prejudice him.5

¶12 The State opposed the motion, asserting that Lim was a
“registered nurse, who repeatedly had access to vulnerable
female patients” and “took advantage of them sexually using
similar methods and then repeatedly refuted the complaints filed


5. Lim’s motion to sever addressed four counts because the State
had filed an amended information containing four counts. The
fourth count was dropped in a second amended information
before trial.


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                          State v. Lim


by the women, claiming that the women were confused or
mistaken.” “[T]he similarity of alleged victims and the
commonalities in [Lim’s] actions,” the State argued, made joinder
proper. Specifically, the State said there was “a strong visual
connection” among the victims because (1) they were hospitalized
in Salt Lake County, Utah; (2) they were treated by Lim in his
capacity as a registered nurse; (3) they complained that Lim
“committed inappropriate sexual acts after befriending them in a
manner unlike other healthcare professionals”; (4) they were
abused late in the evening; and (5) they had been given narcotic
pain medications.

¶13 The State argued that the joinder would not prejudice Lim
because evidence involving all the counts would “likely be
admissible whether there was one or multiple trials.” The State
did not argue that there would be “no prejudice” to Lim in trying
all the “counts in a single trial,” conceding that “it would be
difficult to imagine a scenario in which any defendant might not
be prejudiced to at least some degree when a jury is allowed to
hear evidence from multiple counts or from prior, uncharged
acts.” But the State asserted that joinder was not unfairly
prejudicial here because even if the charges were severed, “the
jury would likely hear a portion, if not all, of the evidence
regarding the other charged counts, [since] the evidence would be
admissible as 404(b) evidence in each of the separate trials,”
presumably to counter Lim’s assertion that he was “performing
appropriate nursing care, which necessarily involves touching the
body,” and that “these female patients were confused or mistaken
regarding their complaints.”

¶14 The district court denied Lim’s motion to sever. Even
though the charges were by nature prejudicial when tried
together, the court determined that there was “no prejudice that
results by joining them together.” “[J]oinder would not result in
prejudice to [Lim] because evidence for all [the] counts would be
allowed whether there were separate trials (where the evidence
would be repeated in each trial) or one trial (where the evidence
would be presented only once).” The court elaborated that



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                             State v. Lim


“joinder was proper in this case given that evidence in each of the
. . . counts was strikingly similar” and that “evidence from all [the]
counts was necessary to avoid jury confusion and for the jury to
accurately assess any claims made by [Lim] regarding accidental
touching or victim mistake.” Lastly, the court determined that,
“based on a careful weighing of the evidence, joinder of the . . .
counts was proper under a 404(b) analysis and would lead to a
fair trial for both parties.”

¶15 After a three-day trial, a jury convicted Lim on two counts
of object rape and one count of forcible sexual abuse. Lim appeals.


              ISSUE AND STANDARD OF REVIEW

¶16 Lim contends that the district court exceeded its discretion
when it denied his motion to sever the three counts. “The grant or
denial of severance is a matter within the discretion of the trial
judge, so we reverse a denial only if the trial judge’s refusal to
sever charges is a clear abuse of discretion in that it sacrifices the
defendant’s right to a fundamentally fair trial.” State v. Balfour,

, 

 (cleaned up). “Under the
abuse of discretion standard, we will not reverse unless the
decision exceeds the limits of reasonability.” State v. Hildreth, 

, 

 (cleaned up).6


                            ANALYSIS

¶17 “Two or more felonies . . . may be charged in the same
indictment or information if each offense is a separate count and
if the offenses charged are . . . alleged to have been part of a


6. Lim has also raised issues of ineffective assistance of counsel
and cumulative error, in addition to seeking remand pursuant to
rule 23B of the Utah Rules of Appellate Procedure. Because we
reverse on the severance issue, it is unnecessary to address these
remaining issues.


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                              State v. Lim


common scheme or plan.” 

-8a-1(1)(b)
(LexisNexis 2017). But even where joinder is proper under the
common scheme or plan rubric, “[i]f the court finds a defendant
. . . is prejudiced by a joinder of offenses . . . , the court shall order
an election of separate trials of separate counts.” See 

 § 77-8a-
1(4)(a).

¶18 The joinder of the three counts against Lim fails on both
prongs (i.e., common scheme or plan and prejudice). We consider
each in turn.

                     I. Common Scheme or Plan

¶19 Charges are part of a common scheme or plan “when the
crimes involve a similar fact pattern and proximity in time.” State
v. Balfour, 

, 

. After laying out
these two requirements, we explain how Lim’s conduct fell short
of meeting them.

A.     Similar Fact Pattern

¶20 A “parallel fact pattern in [multiple] incidents plainly
demonstrates the existence of a calculated plan.” State v. Lee, 

 (Utah Ct. App. 1992). But “to be classified as a
common plan or scheme it is not necessary for the crimes to have
been perpetrated in an absolutely identical manner, so long as the
court perceives a visual connection between the two crimes.” 

 (cleaned up); accord Balfour, 

.

¶21 In Balfour, a defendant was charged with four counts of
forcible sexual abuse in a single information, three of which were
for touching the breasts of three women who had come to his
office, all on the same day. 

, ¶¶ 2–4, 7. The other
count was related to the defendant going to another woman’s
house—about sixteen months earlier—removing his pants and
rubbing his penis against the woman’s vagina over her clothing
in an act of simulated intercourse. Id. ¶ 6. The trial court denied
the defendant’s motion to sever the four counts. Id. ¶ 10.



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                            State v. Lim


¶22 On interlocutory appeal, this court determined that the
office counts were properly joined because “the three alleged
crimes occurred within the same calendar day and [because] the
circumstances surrounding each incident [were] strikingly
similar.” Id. ¶¶ 1, 21, 25. But the remaining count involving
simulated intercourse was not properly joined. Id. ¶ 28. This court
noted that not only did this count relate to conduct that had
occurred sixteen months earlier, but it also took place at the
woman’s home and involved touching a different body part. Id.
¶ 30. In the interest of “assuring the defendant a fair trial,” this
court held “that the trial court exceeded its discretion in denying
[the defendant’s] motion to sever [the dissimilar] count.” Id. ¶ 31.

¶23 State v. Hildreth, 

, 

, involved
the joinder of six counts of forcible sexual abuse perpetrated
against four different women by a chiropractor during treatment.
Id. ¶ 2. All the incidents happened under the guise of
administering chiropractic treatment and while the women were
alone with the defendant. Id. ¶¶ 5–21. The first woman testified
that the defendant lifted her hospital gown and touched her bare
breast, pulled her pants down and touched her pubic bone, and
(on a subsequent visit) reached under her gown and touched her
bare breast. Id. ¶¶ 5–6. The second woman testified that the
defendant put his hand under her shirt and bra and touched her
breast “skin to skin” and (in a subsequent visit) opened her gown
to expose “her naked body from the waist down” and massaged
her hip and buttocks, also touching her pelvic area. Id. ¶¶ 7–8. The
third woman testified that the defendant, while giving her a
massage, twice “brushed over” her crotch area, slid his finger
under her underwear and touched her labia, and lifted the sheet
covering her, exposing her bare breasts. Id. ¶¶ 10–11 (cleaned up).
The fourth woman, who worked as a receptionist for the
defendant, told him that she had a vaginal infection. Id. ¶¶ 13–14.
The woman allowed the defendant to examine her and apply a gel
to her vaginal area. Id. ¶ 15. On a subsequent visit, he inserted his
hand “more fully into her vagina” and rubbed for a long time. Id.
¶ 16. The defendant also began “flicking her nipple.” Id. ¶ 17




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                             State v. Lim


(cleaned up). And on a follow-up visit, the defendant engaged in
nearly identical—though much more invasive—touching. Id. ¶ 19.

¶24 The trial court denied the defendant’s motion to sever,
noting that the evidence as to each woman would be admissible
at separate trials under rule 404(b) to show motive, mental state,
plan, absence of mistake, or lack of accident. Id. ¶ 3. The court also
noted that the conduct for each count (1) involved a defendant
who “exploited a position of trust as a chiropractor,” (2) occurred
under the guise of chiropractic care, and (3) happened in a clinical
setting. Id. (cleaned up).

¶25 Despite the relatively similar circumstances under which
each incident of abuse occurred, this court concluded that “the
trial court erred in denying [the defendant’s] motion to sever
because the charges were neither connected in their commission
nor part of a common scheme or plan.” Id. ¶ 31. This court
observed,

       Aside from the fact that [the defendant] was all of
       the women’s chiropractor and that all of the conduct
       occurred during the course of treatment while the
       women were alone with him, there are too many
       variations in the circumstances and conduct to
       conclude that there is a parallel fact pattern that
       plainly demonstrates the existence of a calculated
       plan.

Id. ¶ 36 (cleaned up). Specifically, this court pointed out that the
“incidents involved different body parts, different levels of
undress and possibly unnecessary exposure, and different types
of touching—from light brushing and massage to vigorous
rubbing and actual penetration.” Id. These differences, this court
asserted, prevented it from “say[ing] that there [were] striking
similarities in [the defendant’s] conduct with each woman.” Id.




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                             State v. Lim


B.     Proximity in Time

¶26 A “common scheme or plan” exists “when the crimes
involve a similar fact pattern and proximity in time.” Balfour, 

 (cleaned up). In other words, “factual
similarities should be viewed in light of their temporal proximity
to one another.” Hildreth, 

. Thus, for joinder
to be proper, there must be both factual similarities and temporal
proximity. And our case law on temporal proximity in the joinder
context is nowhere near as expansive as the State suggests (i.e.,
allowing joinder even when several years or more pass between
separate incidents). A span of five days is close enough—along
with other similarities—to support joinder. See State v. Lee, 

 (Utah Ct. App. 1992). But conduct involving one
victim that “occurred a full three years before the conduct relating
to” a different victim and “over two years prior to the conduct
involving” two other victims “was clearly not a part of a common
scheme or plan.” Hildreth, 

, ¶ 37 n.10. Sixteen
months—along with certain dissimilarities—is also too long for a
common scheme or plan. Balfour, 

. And
several months was too long in a case involving nearly identical
rapes of two different victims. State v. Gotfrey, 

, 1327–
28 (Utah 1979).

¶27 Citing State v. Jimenez, 

, 

 (per
curiam), and State v. Hattrich, 

, 

, the
State asserts that this court has “affirmed the joinder of offenses
that were . . . separated by significant periods exceeding the timegap in this case.” But Jimenez does not specify any time gap
between the charged offenses; rather, it involved acts of sexual
“abuse of three siblings over more than a decade.” 

. In no place does Jimenez indicate the length of time
between the individual incidents of abuse. And Hattrich is much
the same in that it involved twenty-five counts of various types of
sexual victimization of five juveniles that occurred from 1994 to
1999. See 

. Like Jimenez, Hattrich does
not indicate the length of time between incidents. On the contrary,
it states that the abuse of three of the victims “was occurring



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                            State v. Lim


simultaneously” over a three-year period. 

 ¶ 21 n.3 (cleaned
up).

C.     Lim’s Conduct as a Common Scheme or Plan

¶28 Here, the district court exceeded its discretion in joining
the three charged incidents of alleged sexual abuse because they
did not meet the requirements of a common scheme or plan.

¶29 First, the alleged abuse in the three incidents is too
dissimilar to qualify for joinder. The difference between the first
two incidents and the third is obvious in that the first two
incidents involved an entirely distinct part of the body—resulting
in two charges of object rape—from the third incident, which
resulted in a charge of forcible sexual abuse. See Hildreth, 

 (determining that incidents involving “different
body parts” and “different types of touching” prevented the court
from finding that there were “striking similarities” in a
defendant’s conduct with different women).

¶30 And regarding all three incidents, aside from the fact that
Lim was the nurse assigned to all three women and that all the
“conduct occurred during the course of treatment while the
women were alone with him, there are too many variations in the
circumstances and conduct to conclude that there is a parallel fact
pattern that plainly demonstrates the existence of a calculated
plan.” See 

 (cleaned up). As in Hildreth, most of the striking
similarities the State homes in on consist of similarities of
circumstance (viz., a female patient suffering from a serious
medical issue lying in a hospital bed and on pain medication)
rather than similarities in Lim’s conduct (viz., the calculated
scheme Lim allegedly employed to touch the prohibited body
parts). Without more (e.g., greater temporal proximity or




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                           State v. Lim


additional parallel conduct by Lim), touching a prohibited body
part is simply insufficient to establish a common scheme or plan.7

¶31 Second, the lack of temporal proximity among the
incidents also prevents them from being part of a common scheme
or plan. The three charges related to the separate incidents that
took place over the course of nearly seven years—from January
12, 2009, until December 31, 2015, with the interval between the
first two incidents being just over five years and the interval
between the second and third incidents being a week shy of
twenty-three months. Our case law does not allow for such an
expansive view of temporal proximity. Even the nearly twenty-three months between the second and third incidents lacks
support as an acceptable term to establish temporal proximity. As
discussed above, the cases cited by the State to argue joinder is
acceptable even with such lengthy gaps in time as present here do
not support the conclusions the State advances. Relatively
frequent abuse spread out over a period of five or ten years is not
the same as three distinct incidents of abuse separated
respectively by over five years and nearly two years. See Jimenez,

; Hattrich, 

, 21
& n.3.

¶32 In sum, “we are impelled to conclude that the separate and
different charges” of sexual assault of the three patients “are not
of such similarity in character and circumstances of commission
that, considering fairness” to Lim, they should have been joined
under Utah Code section 77-8a-1. See Gotfrey, 

.




7. Indeed, given the striking similarity of the fact patterns, the
outcome of this case is largely dictated by State v. Hildreth, 

, 

. Because the State has not engaged in
the analysis required to ask us to overturn Hildreth, we feel bound
by its analysis in arriving at the outcome here.


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                               State v. Lim


                              II. Prejudice

¶33 Even when severance should have been granted because
the charged incidents fell short of constituting a common scheme
or plan, as is the case here, a defendant must still show prejudice
to prevail. State v. Calliham, 

, 

 (“Any
error in denying severance will be deemed harmless unless [a]
defendant can establish a reasonable likelihood of a more
favorable outcome if the court had granted a severance.” (cleaned
up)); see also Utah R. Crim. P. 30 (a) (“Any error, defect,
irregularity or variance which does not affect the substantial
rights of a party shall be disregarded.”). Indeed, prejudice must
also be evaluated even when joinder is proper under the common
scheme or plan rubric. See 

-8a-1(4)(a)
(LexisNexis 2017) (“If the court finds a defendant . . . is prejudiced
by a joinder of offenses . . . , the court shall order an election of
separate trials of separate counts . . . .”); see also State v. Burke, 

, 

 (“Even if offenses are properly
joined, severance may nonetheless be required to prevent
prejudice to the defendant.”). And

       care must be taken that the [joinder] statute is not
       misused to deprive an accused of a fair trial upon an
       offense by joining different offenses so that evidence
       concerning charges unrelated in time and nature,
       which would normally not be admissible upon a
       trial, could be admitted as to the multiple offenses
       in an effort to stigmatize the defendant and thus
       make it questionable that the jury would give a fair
       and dispassionate consideration to the evidence.

State v. Gotfrey, 

 (Utah 1979). Consequently, we
proceed to analyze whether the district court exceeded its
discretion in determining that Lim was not prejudiced by the
joinder, and we conclude that it did.

¶34 For a joinder to stand, it must “meet the prejudice prong of
section 77-8a-1.” See State v. Balfour, 

, 198



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                             State v. Lim


P.3d 471. “In analyzing the prejudice prong, the trial court must
determine whether evidence of the other crime would have been
admissible in a separate trial.” 

 (cleaned up). That analysis (viz.,
the admissibility of the other acts) is governed by rule 404 of the
Utah Rules of Evidence. See 

 And “[e]vidence of a crime, wrong,
or other act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in
conformity with the character.” Utah R. Evid. 404(b)(1). But otheract “evidence may be admissible for another purpose, such as
proving . . . absence of mistake.” 

 R. 404(b)(2).

¶35 However, even if the evidence is admitted for a “proper,
noncharacter purpose” and the evidence is “relevant to the
offense being prosecuted,” that “evidence of other crimes,
wrongs, or acts must be admissible under rule 403,” Balfour, 

, which excludes “relevant evidence if its
probative value is substantially outweighed by a danger of . . .
unfair prejudice,” see Utah R. Evid. 403.8 While “a proper rule 403


8. We are cognizant that the prejudice analysis for joinder is
usually conducted under the “substantially outweigh[ing]”
language found in rule 403 of the Utah Rules of Evidence. See, e.g.,
State v. Balfour, 

, 

. But the text
of the joinder statute does not appear to call for such a high
threshold. Rather, it requires only that a court order “separate
trials of separate counts” if a defendant “is prejudiced by a
joinder.” See 

-8a-1(4)(a) (LexisNexis 2017).
We acknowledge that “the burden of demonstrating prejudice is
a difficult one, and the ruling of the trial judge will rarely be
disturbed upon review. The defendant must show something
more than the fact that a separate trial might offer him a better
chance of acquittal.” State v. Reece, 

, 

(cleaned up); see also State v. Benson, 

, 

 (stating that “generalized but unanalyzed assertions” of
“inherent prejudicial impact” resulting from joinder “fall short of
demonstrating trial court error” (cleaned up)). However, as this
case does not turn on the level of prejudice present, we leave for
                                                      (continued…)


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                             State v. Lim


analysis for rule 404(b)” looks first to “the language of rule 403,
. . . to the extent the court finds it helpful to consider a factor set
forth in Shickles[9]—or any other factor—it may do so.” State v.
Ring, 

, 

 (cleaned up).

¶36 Thus, if Lim shows that the evidence of the three charged
crimes would not have been admissible at separate trials because
its probative value was substantially outweighed by the danger
of unfair prejudice, he can establish that the district court
exceeded its discretion when it denied his motion to sever. We


another day the question of whether, under the joinder statute,
any prejudice must substantially outweigh the value of
adjudicating the cases together.

9. The Shickles factors are “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, [and] the efficacy of alternative proof.”
State v. Shickles, 

, 295–96 (Utah 1988) (cleaned up),
abrogated on other grounds by State v. Doporto, 

 (Utah
1997). We note that over the last few years, the strict application
of these factors has been abandoned. See State v. Fullerton, 

, ¶ 23 n.5, 

. Our supreme court has stated “that
while some of the Shickles factors may be helpful in assessing the
probative value of the evidence in one context, they may not be
helpful in another.” 

 (cleaned up). Rather, in assessing
prejudice, “courts are bound by the text of rule 403, [and] not the
limited list of considerations outlined in Shickles.” 

 (cleaned up).
Moreover, “it is inappropriate for a district court to ever consider
whether evidence will lead a jury to ‘overmastering hostility’”—
which was the last of the original Shickles factors—because the
“language of rule 403 requires only that evidence not lead to
unfair prejudice” and “[o]vermastering hostility is both a stricter
and looser metric by which to judge evidence under rule 403.”
State v. Cuttler, 

, 

; see also Shickles, 760
P.2d at 295–96 (listing the original Shickles factors).


 20190027-CA                      16                 

                           State v. Lim


conclude that he has made such a showing for the following
reasons.

¶37 First, as we have already discussed, the lack of similarity
and extensive time intervals separating the three incidents weigh
against joinder and support a conclusion of prejudice. See State v.
Hildreth, 

, 

 (concluding that a
joinder of conduct that lacked similarity and that was separated
by lengthy intervals of time prejudiced a defendant).

¶38 Second, when considered in isolation, the strength of the
State’s evidence supporting each individual count was “relatively
weak.” See 

 “There was no confession, no third-party
eyewitnesses, and no physical evidence that [the three patients]
had been sexually abused; the only direct evidence that abuse
occurred was [the patients’ testimonies]. Our supreme court has
described convictions in such cases as not strongly supported by
the record.” State v. Burnett, 

, 

(cleaned up). This is not to say that Lim could not have been
convicted on any one (or even all) of the counts had they been
tried separately, but introducing evidence of all three allegations
in the same proceeding prejudiced Lim by the cumulative
bolstering effect that the combination had on the otherwise
uncorroborated allegations. See Hildreth, 

(“[C]umulative prior bad acts evidence may have the tendency to
suggest a verdict on an improper, emotional basis.”).

¶39 Finally—and perhaps most indicative of the State’s
objective in pursuing joinder and most damaging to the
proposition that evidence of each count would be admissible at
separate trials—we note that the manner in which the State
connected the three allegations during closing argument, see infra
¶ 41, certainly suggests that the State was proffering the evidence
not for a proper noncharacter purpose (viz., to show a lack of
mistake) but to suggest propensity, see State v. Lane, 

, 

 (“The way the evidence was presented at
trial also supports our conclusion that the prior act evidence in
this case presented a prejudicial propensity inference.”); see also



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                            State v. Lim


State v. Verde, 

, 

 (“Fidelity to the
integrity of the rule requires a careful evaluation of the true—and
predominant—purpose of any evidence proffered under rule
404(b). Thus, if proof of [the noncharacter purpose] is merely a
ruse, and the real effect of prior misconduct evidence is to suggest
a defendant’s action in conformity with alleged bad character, the
ruse is insufficient and the evidence should not be admitted.”),
abrogated on other grounds by State v. Thornton, 

, 

.

¶40 “In conducting a rule 403 balancing with regard to rule
404(b) evidence, the evidence’s non-character purpose should be
weighed on the probative value side of the ledger, while the
evidence’s value as propensity evidence should be weighed on
the prejudice side of the ledger.” State v. Fredrick, 

, 

 (cleaned up). Here, the potential non-character purposes are rather weak and difficult to discern while
the potential propensity inferences stand out. The State advances
the argument that all three charges would have been separately
admissible for a “proper noncharacter purpose under rule 404(b)
of showing lack of mistake or accident.” Specifically, the State
argues that evidence of the three incidents would be admissible
to refute Lim’s claim that the three patients were “mistaken” or
“confused and disoriented due to side effects of their medication.”
But as our supreme court recently clarified, where other-acts
evidence is proffered to assist the jury in evaluating a witness’s
version of the events, “there is little separating the impermissible
inference from the permissible one.” See State v. Richins, 

, 

. Admitting similar-act evidence in this
context could “permit the jury to infer” that the three patients
correctly reported the inappropriate sexual touching because Lim
“was accused of doing the same thing before.” 

 Thus, the “risk
of the jury making a character-based inference substantially
outweigh[ed] the probative value of the other-acts evidence under
these circumstances.” 

¶41 That the State was in fact advancing a character purpose in
advocating joinder was made clear in its closing argument. There,



 20190027-CA                    18                

                            State v. Lim


the State repeatedly implied—and perhaps explicitly stated—that
Lim had a propensity to sexually abuse vulnerable patients. The
prosecutor stated that Lim’s “pattern” of abuse started in 2009 and
that Lim was charged because he abused patients “again and
again and again.” The prosecutor went on to describe Lim’s
“pattern” of abuse three more times and to state that Lim abused
the patients “again” at least four more times. By making this
argument, the State was inviting the jury to draw an
impermissible propensity inference from this evidence.

¶42 Put succinctly, in analyzing whether prejudice proceeds
from joinder, a court “must determine whether evidence of the
other crime would have been admissible in a separate trial,”
Balfour, 

 (cleaned up), and evidence of Lim’s
sexual abuse of two other patients to show that he abused a third
would not have been admitted because, as we explained above,
the probative value of the evidence of the separate incidents was
substantially outweighed by the danger of unfair prejudice, see
Utah R. Evid. 403. Allowing the jury to learn that Lim was accused
of sexual abuse of three different patients at different times over a
period of nearly seven years, with substantial gaps between
alleged instances of abuse, permitted it to draw an improper
propensity inference that Lim was the kind of person inclined to
sexually abuse women. We can discern no proper non-character
purpose for the admission of the separate acts. And thus, even if
“we are missing some subtle distinction between the State’s
proffered purposes and the forbidden propensity inference,” any
such distinction was likely “lost on [the] lay jury.” See State v.
Gallegos, 

, 

. Therefore, the
evidence of the separate acts had “little legitimate probative
value” but came “laden with a substantial risk of unfair
prejudice.” See 

¶43 Thus, for these reasons, we conclude that, in addition to not
meeting the common scheme or plan prong of the joinder statute,
the district court exceeded its discretion in determining that Lim
was not prejudiced by the joinder of the three offenses. See 

-8a-1(4)(a) (Lexis Nexis 2017).



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                          State v. Lim


                       CONCLUSION

¶44 We conclude that the district court exceeded its discretion
in denying Lim’s motion to sever the three charged counts. They
were not part of a common scheme or plan, and joining them was
unfairly prejudicial.

¶45   Reversed and remanded.




20190027-CA                   20