Utah Court of Appeals
Can prosecutors reference uncharged sexual acts in child abuse cases? State v. Devey Explained
Summary
Devey was convicted of multiple sex crimes against his daughter spanning four years. He appealed claiming prosecutorial misconduct for referencing uncharged acts in closing argument and prejudicial error from a witness calling the child ‘the victim.’
Practice Areas & Topics
Analysis
In State v. Devey, the Utah Court of Appeals addressed two critical issues in child sexual abuse prosecutions: when evidence of uncharged acts is admissible and whether referring to the complaining witness as “the victim” violates due process rights.
Background and Facts
Blair Devey was convicted of multiple sex crimes against his daughter spanning approximately four years. During closing arguments, the prosecutor stated that the evidence established Devey “committed each and every one of these crimes and many more that he is not charged with.” Additionally, one witness referred to the child as “the victim” during testimony, despite Devey’s motion in limine to prohibit such references.
Key Legal Issues
Devey raised two primary arguments on appeal: (1) prosecutorial misconduct for referencing uncharged acts in violation of Rule 404(b), and (2) denial of his constitutional right to the presumption of innocence due to the witness’s use of the term “victim.”
Court’s Analysis and Holding
The court found the prosecutor’s reference to uncharged acts was proper under Rule 404(b). Following State v. Reed, the court held that evidence of multiple instances of sexual contact with the same victim demonstrates an ongoing behavior pattern rather than impermissible character evidence. The acts were “essentially interchangeable, occurred over a defined period of time and in the same uninterrupted course of conduct.”
Regarding the “victim” reference, while the court agreed that such terminology should generally be prohibited when the occurrence of the crime is disputed, the single isolated reference by a witness constituted harmless error under the circumstances.
Practice Implications
This decision provides important guidance for both prosecutors and defense attorneys in child abuse cases. Prosecutors may reference evidence of uncharged acts when they demonstrate a pattern of abuse against the same victim during the same course of conduct. However, defense counsel should continue filing motions in limine to prohibit “victim” terminology, as courts increasingly recognize its prejudicial impact on the presumption of innocence.
Case Details
Case Name
State v. Devey
Citation
2006 UT App 219
Court
Utah Court of Appeals
Case Number
No. 20050414-CA
Date Decided
May 25, 2006
Outcome
Affirmed
Holding
Evidence of uncharged sexual acts against the same victim during the same course of conduct is admissible under Rule 404(b) as demonstrating an ongoing behavior pattern rather than character evidence, and a single witness reference to the complaining witness as ‘the victim’ constitutes harmless error.
Standard of Review
Abuse of discretion for motion for new trial; correctness for constitutional right to presumption of innocence
Practice Tip
File motions in limine to prohibit use of the term ‘victim’ when the occurrence of the alleged crime is disputed, as courts increasingly recognize this prejudices the presumption of innocence.
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