Does rule 404(c) require prior child molestation acts to be similar to the charged offense? State v. Canal-Medina Explained

Background and facts

Estanislo Canal-Medina was convicted of aggravated sexual abuse of a child after his wife walked into their bedroom and witnessed him standing between the legs of their three-year-old granddaughter, Gwen, holding his exposed penis directed toward her genitals. Before trial, the State gave notice of its intent to call a second witness, Mary, under Utah Rule of Evidence 404(c). Mary would testify that Canal-Medina repeatedly molested her over a period of years when she was between approximately three and nine years old, touching her breasts and rubbing his penis on her buttocks. The district court admitted the testimony over Canal-Medina’s motion in limine. The jury convicted him of the charged offense, and he appealed.

Key legal issues

Canal-Medina raised two issues on appeal. First, he argued that trial counsel provided ineffective assistance of counsel under Strickland v. Washington by failing to request removal of a prospective juror, Juror 14, who recounted his daughter’s harsh views of convicted criminals, described himself as anxious about sexual abuse in the community, and initially responded “no” when asked whether he would want a juror with his own mindset on the panel. Second, he argued that Mary’s testimony was inadmissible under rules 403 and 404(c) because the prior acts were insufficiently similar to the charged conduct and the risk of unfair prejudice substantially outweighed probative value.

Court’s analysis and holding

The Utah Court of Appeals affirmed on both issues. On the ineffective assistance claim, the court applied the two-step presumption from State v. Litherland: counsel’s decision not to remove a juror is presumed to be a conscious strategic choice, and that choice is further presumed to constitute effective representation. Canal-Medina sought to rebut the presumption by showing Juror 14 expressed bias so strong and unequivocal that no plausible countervailing preference could justify the failure to remove him. The court declined to find such bias. Juror 14 expressly affirmed his deep belief in the presumption of innocence, distinguished convicted inmates from persons merely charged, and acknowledged his duty to evaluate evidence presented at trial. Critically, the court noted that it had listened to the audio recording of voir dire and detected an audible chuckle immediately following Juror 14’s “no” response — suggesting the remark may have been self-deprecating humor rather than a sincere expression of bias. The court deferred to trial counsel’s in-courtroom assessment of those unspoken cues.

On the evidentiary issues, the court held that rule 404(c)(2) imposes no substantial similarity requirement. The rule’s plain text permits admission of evidence that a defendant committed “any other acts of child molestation” to prove propensity when the defendant is charged with child molestation. The court rejected the argument that State v. Cuttler implied a similarity threshold, noting that the high degree of similarity in Cuttler did not establish a floor for admissibility. On the rule 403 balancing, the court found the direct evidence of Canal-Medina’s abuse of Gwen — including eyewitness testimony, DNA evidence, and his own admission that his penis was exposed — was strong, and that a limiting instruction adequately addressed the risk of misuse.

Practice implications

Practitioners defending child molestation charges should be aware that rule 404(c) propensity evidence faces a low admissibility threshold — dissimilarity in the acts, victims, or circumstances is not a basis for exclusion. Challenges are better focused on rule 403 balancing, particularly where the State’s case-in-chief evidence is weak. On ineffective assistance claims arising from voir dire, appellate counsel should always obtain and review audio recordings of jury selection — a transcript alone may not capture the demeanor and tone that courts will weigh when evaluating whether counsel’s decision to retain a juror was plausibly justified.