State v. Gallegos

2020 UT App 162

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
DARRIN JAMES GALLEGOS,
Appellant.

Opinion
No. 20190029-CA
Filed December 10, 2020

Third District Court, Salt Lake Department
The Honorable Elizabeth Hruby-Mills
No. 181901242

Sarah J. Carlquist and Brady Smith,
Attorneys for Appellant
Sean D. Reyes, John J. Nielsen, and Richard Pehrson,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGE KATE APPLEBY concurred. JUDGE JILL M. POHLMAN
concurred in part and dissented in part, with opinion.

HARRIS, Judge:

¶1 After searching the prison cell Darrin James Gallegos
shared with a cellmate (Cellmate), guards found a shank hidden
in a shoe. At first, Gallegos and Cellmate agreed that the shank
belonged to Gallegos. But a few months later, after criminal
charges were filed against Gallegos, they changed their stories
and insisted the shank belonged to Cellmate. A jury later
convicted Gallegos of possession of a dangerous weapon by a
restricted person, a first-degree felony. Gallegos now appeals
that conviction, and challenges the trial court’s admission of
three pieces of evidence: Gallegos’s previous possession of a
similar shank, Gallegos’s and Cellmate’s affiliation in gangs, and
State v. Gallegos

Gallegos’s and Cellmate’s sentences and parole statuses. Under
the circumstances, the trial court did not abuse its discretion by
admitting the gang evidence or evidence about their sentences
and parole statuses at the time the shank was discovered. But
evidence about the potential sentence Gallegos faced if convicted
at trial should not have been admitted and, most significantly,
we conclude that the trial court improperly allowed the jury to
learn that Gallegos had previously possessed a similar shank.
And we are persuaded that admission of the previous shank
evidence, in particular, was not harmless. Accordingly, we
reverse Gallegos’s conviction and remand for a new trial.

BACKGROUND

¶2 Gallegos is an inmate at the Utah State Prison, and for a
time he shared a cell with Cellmate. One day, prison officials
were searching prisoners’ cells for contraband. While searching
the cell shared by Gallegos and Cellmate, officers discovered a
“homemade weapon,” or “shank,” located in an Adidas brand
shoe. The shoe was located in a common area of the cell, on the
floor between the two bunks and the toilet. The weapon was a
nine-inch “piece of steel” cut from the frame of a bunk bed and
“sharpened . . . into a point” on one end.

¶3 After finding the shank, officers asked Gallegos and
Cellmate “if either one of them wanted to claim ownership,” and
both initially denied knowing anything about it. Later that day,
however, Gallegos admitted to one officer that the shank was
his, and a few weeks later made the same admission to a
different officer during a follow-up interview. The prison held
separate internal disciplinary hearings about the incident for
both Gallegos and Cellmate, and each of them stated, at their
hearings, that the shank belonged to Gallegos, and that he would
“accept accountability” for it. As a result, prison officials
dismissed all internal disciplinary charges against Cellmate.

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¶4 The State then filed a criminal charge against Gallegos,
accusing him of one first-degree-felony count of possession of a
dangerous weapon by a restricted person. 1 After that criminal
charge was filed, Gallegos and Cellmate each changed their
stories, and claimed that the shank had actually belonged to
Cellmate, not to Gallegos. In recorded phone calls made from
prison, Gallegos explained to a listener that he had originally
claimed ownership of the shank because the likely internal
prison punishment would be a fine, which did not matter to
Gallegos because his prison account (referred to as his “books”)
was already so burdened with other fines and restitution that he
had stopped using it. Cellmate’s books, on the other hand, were
clear, and Cellmate had been allowing Gallegos to use his prison
account for deposits and purchases. If Cellmate were to be fined,
it would have made using his prison account much more
difficult for each of them. Moreover, Cellmate also testified that,
at the time, he had just received his “level three” eligibility to be
moved from the maximum-security section of the prison to
general “population,” and if the shank were determined to be
his, he would have had to remain in maximum security.

1. Under Utah law, possession of a weapon by a restricted
person is a crime that can be charged as anything from a class A
misdemeanor up to a first-degree felony, depending on the type
of weapon involved and on various other factors, including the
defendant’s criminal history. Gallegos is a “Category I restricted
person” because of his criminal history, and was charged under
a statute mandating that the crime of which he was accused was
a “third-degree felony.” See Utah Code Ann. § 76-10-503(2)(b)
(LexisNexis 2017). However, the State also alleged that Gallegos
was a “habitual violent offender,” a status that raises the penalty
for a third-degree felony to that of a first-degree felony. See id.
§ 76-3-203.5(2)(a). On appeal, Gallegos does not take issue with
the State’s position regarding the severity of the charged offense.

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¶5 As the case proceeded toward trial, the State made
motions asking the trial court to admit three types of evidence.
First, the State wanted to introduce evidence that, over four
years earlier, Gallegos had been found to be in possession of a
similar shank, also cut from the frame of a bunk bed—evidence
the State considered relevant to the question of who possessed
the shank on this occasion. Second, the State sought permission
to inform the jury that Gallegos and Cellmate were members of
affiliated gangs, and would therefore be more likely to protect
each other. Third, the State intended to introduce evidence that
Cellmate was in prison for murder and was serving a sentence of
life without the possibility of parole (LWOP), while Gallegos, by
contrast, was not only eligible for parole but, at the time the
shank was discovered, had a parole hearing coming up. The
State asserted that these last two categories of evidence were
relevant to show why Gallegos and Cellmate would have
changed their stories about ownership of the shank. Gallegos
opposed the motions, asserting that the evidence about his
previous shank possession was improper under rule 404(b) of
the Utah Rules of Evidence, and that all of the evidence was
unduly prejudicial under rule 403.

¶6 After briefing and argument, the trial court granted the
State’s motions, and allowed the State to introduce all three
types of evidence. The court offered to give a limiting instruction
regarding the gang evidence and the parole status evidence, but
Gallegos declined that offer. Gallegos did seek, and the court
gave, a limiting instruction regarding Gallegos’s possession of a
shank on a previous occasion, instructing the jury that it could
consider Gallegos’s possession of a previous shank,

if at all, for the limited purpose of: [considering]
[w]hether there was a sufficient nexus
(relationship) between [Gallegos] and the weapon
. . . for you to determine that [Gallegos] had both
the power and intent to exercise dominion and

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control over any allegedly dangerous weapon in
this case. This evidence is not admitted to prove a
character trait of [Gallegos] or to show that he
acted in a manner consistent with such a trait. Keep
in mind that [Gallegos] is on trial for the crimes
charged in this case, and for those crimes only. You
may not convict a person simply because you
believe [he] may have committed some other acts
at another time.

¶7 At trial, the State called several witnesses during its case-
in-chief, all of whom were officers or investigators affiliated with
the prison. The officers who found the shank in the shoe
testified, as did a different officer who found a similar shank in
Gallegos’s possession more than four years earlier. The State also
called a prison investigator who specializes in gangs, who
testified about the specific affiliated gangs to which Gallegos and
Cellmate belonged, and that members of these gangs have a
duty to “have some sort of weapon” and to be ready to defend
other gang members. The investigator also testified that fellow
gang members sometimes agree to take charges for one another,
particularly where a charge would mean a harsher sentence for
one gang member as opposed to another. In connection with this
testimony, the State introduced evidence of Gallegos’s and
Cellmate’s tattoos to establish their gang affiliations.

¶8 A different prison investigator testified about recorded
phone calls Gallegos made from the prison, as well as about
Gallegos’s and Cellmate’s prison accounts and parole statuses.
With regard to parole status, the investigator testified that
Cellmate was serving a LWOP sentence and had no possibility of
being paroled, but that Gallegos, by contrast, was eligible for
parole and “in theory” could be paroled at any time. Indeed, the
investigator noted that, at one point, Gallegos had a parole
hearing scheduled for a date ten months after the shank was
discovered, and that his parole status could “depend in part on

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his conduct while in prison.” In connection with this evidence,
the jury heard Gallegos (on a recorded phone call) mention that
he was facing “five-to-life” in this case. Although the State made
no further mention of the potential sentence Gallegos might
receive if convicted, Gallegos’s attorney mentioned the issue in
cross-examination and in closing argument, implying that five
years to life was an overly long and unjust sentence for being
caught with a shank in a shoe.

¶9 Gallegos elected not to testify, but he called Cellmate,
who testified that both the Adidas shoes and the shank were his,
and did not belong to Gallegos; he even described in some detail
the manner in which he had cut the shank from the bed frame.
Cellmate also testified that, like Gallegos, he had been caught
with a shank on one previous occasion, before he shared a cell
with Gallegos; in his case, the previous episode occurred about a
year before the shank was discovered in their shared cell.

¶10 After deliberation, the jury convicted Gallegos of
possessing the shank. Outside the presence of the jury, the trial
court found that Gallegos was a restricted person and a habitual
violent offender, and that Gallegos therefore was guilty of a first-
degree felony. The court later sentenced Gallegos to prison for
five years to life, to run consecutive to the sentence he was
already serving.

ISSUE AND STANDARD OF REVIEW

¶11 Gallegos appeals, challenging the trial court’s admission
of the three types of evidence discussed above. We review for
abuse of discretion the court’s decision to admit this evidence.
See Met v. State, 2016 UT 51, ¶ 96, 388 P.3d 447 (stating that a trial
court’s decision to admit evidence pursuant to rule 403 is
reviewed for abuse of discretion, which occurs when the court
“applies the wrong legal standard or its decision is beyond the
limits of reasonability” (quotation simplified)); see also State v.

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Allen, 2005 UT 11, ¶ 15, 108 P.3d 730 (“When examining a [trial]
court’s decision to admit evidence under Utah Rule of Evidence
404(b), we review for an abuse of discretion.”).

ANALYSIS

I

¶12 Gallegos first challenges the trial court’s decision to allow
the State to introduce evidence that, on a prior occasion some
four years before the incident in question, Gallegos possessed a
similar prison shank, also cut from a bedframe.

¶13 Rule 404(b)(1) of the Utah Rules of Evidence prohibits the
introduction of evidence “of a crime, wrong, or other act . . . to
prove a person’s character in order to show that on a particular
occasion the person acted in conformity with the character.”
Accord State v. Lopez, 2018 UT 5, ¶ 38, 417 P.3d 116. This
subsection of the rule “recognizes the dangers of exposing a jury
to evidence of a defendant’s acts of prior misconduct—
specifically, the risk that the jury will infer that the defendant
has a reprehensible character, that he probably acted in
conformity with it, and that he should be punished for his
immoral character in any event.” State v. Thornton, 2017 UT 9,
¶ 35, 391 P.3d 1016 (quotation simplified). This forbidden line of
thinking is sometimes referred to as a “propensity inference”—
that is, if jurors are told that a person has acted in a certain way
on previous occasions, they may conclude that it is in that
person’s character to act that way, and may conclude that, due to
this propensity, the person was much more likely to have acted
in conformity with that propensity on the occasion in question.
See, e.g., State v. Lucero, 2014 UT 15, ¶ 14, 328 P.3d 841 (referring
to the “propensity inference” (quotation simplified)), abrogated
on other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016;
accord State v. Verde, 2012 UT 60, ¶ 39, 296 P.3d 673, abrogated on

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other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016. Our
supreme court has referred to the propensity inference as
“improper,” Lucero, 2014 UT 15, ¶ 14, and “impermissible,”
Verde, 2012 UT 60, ¶ 39; see also id. ¶ 15 (stating that, when prior
acts evidence “is offered to suggest action in conformity with a
person’s alleged bad character, it is inadmissible”).

¶14 But while evidence of a defendant’s other bad acts is not
admissible under rule 404(b) to prove propensity, that rule
allows admission of evidence of such acts for other purposes.
The rule provides that such evidence “may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” See Utah R. Evid. 404(b)(2). Thus, “when past
misconduct evidence is offered for any other purpose—other
than to suggest action in conformity with the bad character
suggested by [a defendant’s] prior bad acts—such evidence is
admissible so long as it satisfies rules 402 and 403.” See Thornton,
2017 UT 9, ¶ 36 (quotation simplified).

¶15 Our supreme court has distilled these principles into a
three-part test that governs admissibility of other-bad-acts
evidence pursuant to rule 404(b)(2). “Such evidence is admissible
if it (1) is relevant to, (2) a proper, non-character purpose, and (3)
does not pose a danger for unfair prejudice that substantially
outweighs its probative value.” State v. Killpack, 2008 UT 49, ¶ 45,
191 P.3d 17 (quotation simplified); see also Lucero, 2014 UT 15,
¶ 37 (instructing “trial courts to engage in a three-part analysis
under rules 404(b), 402, and 403”).

¶16 The first step in this analysis requires that the evidence be
relevant, as that term is used in rules 401 and 402. But this test
presents “a low bar,” see Thornton, 2017 UT 9, ¶ 61, because
“[e]vidence is relevant if . . . it has any tendency to make a fact
[of consequence] more or less probable than it would be without
the evidence,” Utah R. Evid. 401. On appeal, Gallegos does not

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contend that the court abused its discretion by determining that
the evidence regarding the previous shank was relevant.

¶17 Gallegos does, however, challenge the trial court’s
conclusions that the remaining two parts of the test were met
here. First, he challenges the court’s determination that the
previous shank evidence was admitted for a proper, non-
propensity purpose. Second, he challenges the court’s rule 403
determination that the probative value of the previous shank
evidence was not substantially outweighed by the risk of unfair
prejudice. In summary, Gallegos asserts that both rule 404(b) and
rule 403 require exclusion of this evidence. We discuss the
applicability of each rule, in turn, and conclude that, even if the
court’s admission of the evidence did not violate rule 404(b), it
did violate rule 403.

A

¶18 Under the second step of the test, the proponent of the
prior acts evidence must demonstrate that the evidence is being
admitted for a proper, non-propensity purpose. Here, the State
asserts that the prior shank evidence is relevant to link Gallegos
to the present shank, and helps demonstrate that he at least
constructively possessed it. 2 As the State puts it, “[a]t issue here
is the relevance of prior possession to show current possession.”

2. “Constructive possession is a legal fiction whereby a person is
deemed to possess contraband even when he [or she] does not
actually have immediate physical control of the object.” See
United States v. Schmitt, 770 F.3d 524, 534 (7th Cir. 2014)
(quotation simplified); see also Constructive Possession, Black’s
Law Dictionary (11th ed. 2019) (defining “constructive
possession” as “[c]ontrol or dominion over a property without
actual possession or custody of it”).

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¶19 To prove that Gallegos at least constructively possessed
the shank, the State must “prove that there was a sufficient
nexus between the accused and the [contraband] to permit an
inference that the accused had both the power and the intent to
exercise dominion and control over” the contraband. See State v.
Workman, 2005 UT 66, ¶ 31, 122 P.3d 639 (quotation simplified).
Whether a “sufficient nexus” exists “depends upon the facts and
circumstances of each case.” Id. (quotation simplified); see also
State v. Fox, 709 P.2d 316, 319 (Utah 1985) (stating that “the
determination that someone has constructive possession of
drugs is a factual determination which turns on the particular
circumstances of the case”). And our supreme court, in a series
of drug cases, has identified “[s]everal factors [that] may be
important” in evaluating constructive possession, including the
following: (a) ownership or occupancy of the residence or
vehicle where the drugs were found; (b) the presence of the
defendant at the time the drugs were found; (c) the defendant’s
proximity to the drugs; (d) “previous drug use”; (e) whether the
defendant made incriminating statements or exhibited
incriminating behavior; and (f) the presence of drugs in a specific
area where the defendant had control. See Workman, 2005 UT 66,
¶ 32; see also Fox, 709 P.2d at 319 (listing factors); State v.
Anderton, 668 P.2d 1258, 1264 (Utah 1983) (Durham, J.,
concurring majority) (same). But the court has also cautioned
against rigid reliance on a list of factors in evaluating
constructive possession, since such factors are “particularly
relevant to the specific factual context in which those cases
arose,” and are not necessarily “universally pertinent factors,”
nor are they “legal elements of constructive possession in any
context.” See State v. Layman, 1999 UT 79, ¶ 14, 985 P.2d 911.

¶20 Our supreme court has applied this test rather narrowly.
In particular, there are several things relevant here that our
supreme court has never done. First, in discussing the “previous
drug use” factor in its constructive possession test, our supreme
court has never analyzed the propensity implication that factor

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seems to invite. Second, that court has never phrased the
“previous use” factor in terms of “previous possession”; rather,
it has always spoken in terms of “use.” See Workman, 2005 UT 66,
¶ 32 (stating that “previous drug use” was a factor that could be
considered); Anderton, 668 P.2d at 1264. Indeed, in Anderton, the
relevance of the use factor was limited to “use and enjoyment”
of the drugs in question in the case, and not prior use of other
drugs. See 668 P.2d at 1264 (listing the defendant’s
“participati[on] with others in the mutual use and enjoyment of
the contraband” as a factor that could be considered (quotation
simplified)). And third, the parties direct our attention to no case
in which our supreme court has applied these factors generally,
or the “previous use” factor specifically, to establish constructive
possession in any non-drug case. As Gallegos points out, there
may be reasons why one might consider previous use more
relevant to constructive possession—and perhaps somewhat less
related to a forbidden propensity inference—in drug cases than
in other types of cases.

¶21 But unlike our supreme court, we have extended the
previous use concept to non-drug cases, and—also without
analyzing the applicability of rule 404(b)—we have even stated
that “previous possession of similar contraband by the
defendant” is relevant to show that the defendant had at least
constructive possession of contraband in the later incident. See
State v. Lucero, 2015 UT App 120, ¶ 7, 350 P.3d 237 (case
involving drugs and weapons); see also State v. Clark, 2015 UT
App 289, ¶ 20, 363 P.3d 544 (stating in a case involving stolen
identification that “previous possession of similar contraband” is
a “factor that may support a finding of constructive possession”
(quotation simplified)). And some federal cases, applying the
federal version of rule 404(b), have employed similar analyses in
cases involving illegal possession of firearms. See, e.g., United
States v. Moran, 503 F.3d 1135, 1144 (10th Cir. 2007) (holding that
evidence that the defendant previously possessed a similar
firearm was “probative to demonstrate that [he] knowingly

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possessed the firearm” in question (quotation simplified));
United States v. Cassell, 292 F.3d 788, 793 (D.C. Cir. 2002) (stating
that “where a defendant is charged with unlawful possession of
something, evidence that he possessed the same or similar things
at other times is often quite relevant to his knowledge and intent
with regard to the crime charged” (quotation simplified)).

¶22 While we can certainly appreciate that a defendant’s prior
possession of a firearm is relevant to demonstrating that he
constructively possessed a similar firearm on a later occasion, it
appears to us that the main reason such evidence is relevant for
that purpose is that it demonstrates propensity—that the
defendant’s previous possession of weapons may indicate a
propensity to possess weapons, and may indicate that the
defendant acted in conformity with that propensity and
possessed another weapon on a later occasion. There is no
question that propensity evidence has relevance. See State v.
Murphy, 2019 UT App 64, ¶ 47, 441 P.3d 787 (Harris, J.,
concurring) (stating that propensity evidence “is excluded not
because it has no probative value but because it has too much”
(quotation simplified)). But “[f]idelity to the integrity of the rule
requires a careful evaluation of the true—and predominant—
purpose of any evidence proffered under rule 404(b).” See Verde,
2012 UT 60, ¶ 22. And after reviewing the parties’ briefs and
relevant case law, we find it difficult to discern a separate non-
propensity reason why evidence that Gallegos previously
possessed a similar shank makes it more likely that he
constructively possessed a shank on a later occasion.

¶23 In an attempt to demonstrate a proper non-propensity
purpose, the State asserts that Gallegos’s previous possession of
a similar shank was relevant to show his “knowledge of” and his
“motive and intent to possess” the second shank. Thus, the State
invokes three of the reasons listed in rule 404(b)(2) as potentially
valid non-propensity purposes for admission of prior acts
evidence: knowledge, motive, and intent. In addition, the State

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phrased its argument differently—and more philosophically—at
oral argument, asserting that the prior acts evidence was not
character evidence at all, because it was not intended to say
anything about who Gallegos was as a person, but instead was
intended merely to inform the jury of certain acts he had
committed. We discuss each of these arguments, in turn.

1

¶24 To be sure, “knowledge” can be a proper non-character
purpose under rule 404(b). Not only is knowledge identified in
the text of the rule as one of the enumerated permissible
purposes, see Utah R. Evid. 404(b)(2), we have also previously
held that, in appropriate cases, prior bad acts evidence can come
in to prove a defendant’s knowledge in the case at hand, see, e.g.,
State v. McDonald, 2005 UT App 86, ¶ 12, 110 P.3d 149. But it is
insufficient for the proponent of prior bad acts evidence merely
to incant the word “knowledge”; instead, in order to analyze
whether knowledge is a proper non-character purpose, rather
than just shorthand for a propensity inference, we must know
more about what type of knowledge the evidence tends to show
in a particular case.

¶25 In some cases, evidence of prior bad acts can help
demonstrate that a defendant has the requisite state of mind for
conviction—that he knew that his actions were unlawful or
likely to result in injury. In McDonald, for instance, the defendant
was accused of cruelty to animals, a charge resulting from the
defendant keeping fifty-eight cats in an unventilated, enclosed
trailer. 2005 UT App 86, ¶¶ 2–6. In order to convict the
defendant, the State was required to prove that she acted
“intentionally, knowingly, recklessly, or with criminal
negligence.” See Utah Code Ann. § 76-9-301(2) (2003). To prove
the defendant’s state of mind, the State presented evidence that
she had, on a previous occasion, possessed some fifty cats, and
that she had been warned by animal control officers at the time

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that “keeping multiple cats in a confined area for too long a time
could cause sickness or injury to the cats.” McDonald, 2005 UT
App 86, ¶ 11. We held that the court did not abuse its discretion
by admitting the prior acts evidence, because it helped “establish
[the defendant’s] knowledge that her conduct was likely to
result in sickness or injury to the cats that she was confining,”
and therefore the evidence went “directly towards proving [the
defendant’s] state of mind” in confining the cats. Id. ¶ 12. Thus,
the prior acts evidence was used primarily to demonstrate the
defendant’s knowledge that her actions were likely to result in
injury to the animals, rather than to show that she was the type
of person who would act cruelly toward animals. Id.; see also
State v. Rackham, 2016 UT App 167, ¶ 17, 381 P.3d 1161 (evidence
of the defendant’s “previous experience with his young cousins
and nieces becoming alarmed or affronted by his unwanted
touching” was relevant to demonstrate the defendant’s
knowledge that such touching would be unwelcome).

¶26 In other cases, where a defendant contends that he could
not have committed the crime because he does not possess
certain knowledge necessary to its commission, some courts
have concluded that evidence of prior bad acts can be admitted
to refute that contention. See, e.g., United States v. Miller, 673 F.3d
688, 698 (7th Cir. 2012) (stating that evidence of prior cocaine
possession might be relevant to prove knowledge in a case
where the defendant asserted that “he lacked knowledge of
cocaine or how to sell it”); United States v. Mendoza, 341 F.3d 687,
692 (8th Cir. 2003) (holding that, where the defendant argued
that “he was just along for the ride and did not even know how
much an ounce of methamphetamine was,” evidence of his prior
conviction for methamphetamine possession was admissible).
But see Dean v. State, 865 P.2d 601, 608 (Wyo. 1993) (stating that
“knowledge of how to commit the crime is not the knowledge
Rule 404(b) permits the admission of prior bad acts to prove”),
abrogated on other grounds as recognized by Williams v. State, 99
P.3d 432 (Wyo. 2004). As applied to this situation, had Gallegos

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defended the case by asserting that he did not know how to cut a
shank from a bed frame and therefore the shank could not have
been his, evidence of his prior shank possession arguably would
have been relevant for a non-propensity knowledge-based
purpose: to rebut the contention that Gallegos did not know how
to make a shank from a bed frame.

¶27 In this case, however, the State does not claim to have
offered the prior bad acts evidence to demonstrate either of these
types of knowledge. Gallegos did not defend the case by
asserting that he lacked knowledge about how to make a shank,
and Gallegos’s state of mind (that is, whether he acted with
intent, knowledge, recklessness, or negligence) was never the
issue. Instead, the State asserts that the prior bad acts evidence is
relevant to the constructive possession issue because it tends to
show that Gallegos had “knowledge of . . . the shank” on this
occasion. But under these circumstances, given Gallegos’s
defenses and the relevant issues at trial, we fail to see how
Gallegos’s possession of a shank on a previous occasion helps
demonstrate Gallegos’s “knowledge of” the shank in question,
other than through a propensity inference. 3 See Verde, 2012 UT

3. One federal court examining this issue in a similar case
acknowledged that admitting evidence of a prior instance of
weapons possession “to prove knowledge” for constructive
possession purposes on a later occasion “involves a kind of
propensity inference (i.e., because [the defendant] knowingly
possessed a firearm in the past, he knowingly possessed the
firearm in the present case).” See United States v. Moran, 503 F.3d
1135, 1145 (10th Cir. 2007). In that case, the court admitted the
evidence nonetheless, but did so using a probability theory
similar to the doctrine of chances. See id. (stating that the prior
acts evidence could be admitted for the purposes of supporting
an inference resting “on a logic of improbability that recognizes
that a prior act involving the same knowledge decreases the
(continued…)

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60, ¶ 26 (“In context, it seems much more likely that [the
evidence] was aimed at sustaining an impermissible inference
that [the defendant] acted in conformity with the bad character
suggested by his prior bad acts.”). We are therefore unconvinced
that “knowledge” can supply a proper non-character purpose
for admission of the prior bad acts evidence under the
circumstances presented here.

2

¶28 In addition to knowledge, the State also argued that
evidence of Gallegos’s prior shank possession should be
admissible to show his “motive” to possess the current shank.
Motive is one of the reasons listed in rule 404(b)(2) that might
serve to justify admission of prior bad acts evidence, see Utah R.
Evid. 404(b)(2), and we have recognized its applicability in some
cases, see State v. Losee, 2012 UT App 213, ¶¶ 18–19, 283 P.3d 1055
(affirming the admission of evidence of a previous assault,
because it explained why the defendant might have had a
motive to solicit the murder of the victim of the original assault).

(…continued)
likelihood that the defendant lacked the requisite knowledge in
committing the charged offense”); see also State v. Verde, 2012 UT
60, ¶¶ 47–51, 296 P.3d 673 (describing the doctrine of chances),
abrogated on other grounds by State v. Thornton, 2017 UT 9, 391 P.3d
1016. While the doctrine of chances was among the grounds the
State invoked when seeking admission of the prior shank
incident before the trial court, that court made no ruling
regarding the applicability of the doctrine of chances, and on
appeal the State does not ask us to affirm the court’s admission
of the shank evidence pursuant to the doctrine of chances; we
therefore do not address whether that doctrine might apply here.

20190029-CA 16 2020 UT App 162
State v. Gallegos

¶29 In this case, however, Gallegos’s motive was never in
question. Gallegos was a maximum-security prisoner at the Utah
State Prison, and was a member of a prison gang that demanded
loyalty of its members, including a duty to “have some sort of
weapon” and to be ready to defend other gang members.
Nothing in the record suggests that there was any mystery about
why Gallegos might have wanted to possess a prison shank, and
he did not argue he lacked a motive to possess one.

¶30 And the State’s reference to “motive” in its briefing is
fleeting, and unaccompanied by any explanation of how the
prior acts evidence would have materially added to the jury’s
perception of what Gallegos’s motive might have been, beyond
the already-obvious evidence of motive, and other than asking
the jury to draw a propensity inference. We are therefore
unpersuaded that “motive” can provide a proper non-character
purpose for admission of the prior bad acts evidence in this case.

3

¶31 Next, the State asserts that evidence of Gallegos’s prior
shank possession should be admissible to show his “intent to
possess the shank discovered in his shared cell.” “Intent” is
another of the purposes specifically listed in rule 404(b)(2), see
Utah R. Evid. 404(b)(2), and we have recognized its applicability
in appropriate cases, see State v. Von Niederhausern, 2018 UT App
149, ¶ 19, 427 P.3d 1277 (“Evidence is offered for a proper
noncharacter purpose if used to prove intent.”). Moreover, as the
State emphasizes, the touchstone of our supreme court’s
constructive possession test is whether the defendant “had both
the power and the intent to exercise dominion and control over”
the contraband. See State v. Workman, 2005 UT 66, ¶ 31, 122 P.3d
639 (quotation simplified). The State therefore contends that
evidence of Gallegos’s previous shank possession is admissible
to show Gallegos’s intent to possess the shank on this occasion.

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State v. Gallegos

¶32 As discussed above, however, Gallegos’s intent—in a
mens rea 4 sense—was never at issue in the case. Gallegos’s
defense rested on the assertion that the shank was not his, but
Cellmate’s; his argument was that he did not possess the shank
at all, not that he possessed the shank with less-than-criminal
intent. This is distinct from many other “intent” cases. See, e.g.,
State v. Widdison, 2001 UT 60, ¶ 45, 28 P.3d 1278 (affirming the
admission of previous acts of child abuse to show the “intent
and mental state” of the defendant when she committed the
abusive acts of which she was accused); State v. Vu, 2017 UT App
179, ¶ 19, 405 P.3d 879 (affirming the admission of prior acts of
methamphetamine sales to demonstrate that the defendant likely
intended to sell, rather than use himself, the distributable
amount of methamphetamine with which he was found).

¶33 In this case, the only way in which “intent” is relevant is
as a part of the constructive possession test—whether Gallegos
had the “intent to exercise dominion and control over” the shank
in question. See Workman, 2005 UT 66, ¶ 31 (quotation
simplified). But in this context, “intent” refers simply to
possession. The State seeks to admit the evidence to demonstrate
that, because Gallegos once possessed a shank on a previous
occasion, it is more likely that he had “intent to” possess one on
this occasion. But this boils down to nothing more than a
propensity inference.

¶34 Without question, the State had to prove that Gallegos
constructively possessed the shank, and as part of that inquiry
had to show that Gallegos had the “intent to exercise dominion

4. Mens rea is “[t]he state of mind that the prosecution, to secure
a conviction, must prove that a defendant had when committing
a crime,” and “is the second of two essential elements of every
crime at common law, the other being the actus reus.” Mens rea,
Black’s Law Dictionary (11th ed. 2019).

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State v. Gallegos

and control over” it. See id. (quotation simplified). But, as our
supreme court has noted,

the technical relevance of a defendant’s intent is
not enough to justify the admissibility of evidence
of prior bad acts purportedly aimed at establishing
intent under rule 404(b). 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 intent
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.

Verde, 2012 UT 60, ¶ 22 (quotation simplified). While the prior
bad acts evidence here may be technically relevant to show
intent to possess under Workman, we are unable to discern a non-
propensity pathway through which that evidence helps prove
intent to possess. We are thus unpersuaded that “intent”
provides a proper non-character purpose for admission of
evidence that Gallegos previously possessed a shank.

4

¶35 Finally, at oral argument before this court, the State took a
slightly different tack, asserting that, in this context, there is a
difference between “who a person is” and “what a person did,”
and that rule 404(b) only bars evidence of the former—that is, it
bars evidence of a person’s negative character, and does not
necessarily bar evidence of a person’s prior bad acts insofar as
that evidence does not bear on the essence of the person’s
character. Specifically, the State argued that, in this case, the
evidence of prior shank possession was not intended to show
that Gallegos was a bad person generally, just that he was a
person “with a certain level of knowledge or a certain motive,

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State v. Gallegos

[and] therefore . . . likely had that motive or that knowledge in
this instance.” The State argued that the rule excludes propensity
evidence only when a prosecutor “add[s] an extra step there and
say[s], ‘somebody did something bad, therefore they are a bad
person, therefore on this occasion they did something bad.’” In
essence, “the State’s view is that you can show that somebody
had intent on a prior occasion and therefore they had intent on
this occasion without saying anything about who they are.”

¶36 We acknowledge the structure of rule 404(b), which
forbids introduction of “[e]vidence of a crime, wrong or other
act” for the purpose of proving “a person’s character in order to
show that on a particular occasion the person acted in
conformity with that character,” yet allows introduction of prior
bad acts evidence for other purposes, including “proving
motive, . . . intent, . . . [or] knowledge.” See Utah R. Evid.
404(b)(1)–(2). But the term “character,” as used in rule 404(b), is
broader than the State suggests. The term as used there means
more than whether the person is, at root, a generally good-
hearted person with positive qualities; rather, the term is also
intended to encompass specific traits or propensities the person
might have, some of which might be negative even if the person
could be considered generally a good person. Indeed, the rules
of evidence themselves make clear that there is more than one
way to prove a person’s “character”: in addition to offering
evidence of the person’s general reputation in the community, in
certain instances litigants may prove character by offering
“relevant specific instances of the person’s conduct.” See Utah R.
Evid. 405; see also David P. Leonard, The New Wigmore: A Treatise
on Evidence: Evidence of Other Misconduct and Similar Events § 1.2
(2009) (stating that character evidence includes “evidence of
other wrongful acts”). That is, evidence of specific acts, even if
not presented as evidence of a person’s general character, can
lead a factfinder to draw inferences about a person’s
propensities, and therefrom to infer that the person may have
acted in conformity with those propensities.

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State v. Gallegos

¶37 Our supreme court has noted that the ban on propensity
evidence is also concerned with evidence of specific behavior,
and not just evidence of general character, because evidence of
specific behavior can lead to inferences about broader character
traits. See, e.g., State v. S.H., 2002 UT 118, ¶ 24, 62 P.3d 444
(stating that the ban on propensity evidence works “to ensure
that a defendant is only convicted because he committed the
charged offense and not because the jury is convinced of his
cumulative bad behavior” (emphasis added)). Indeed, rule
404(b)’s restrictions on evidence of prior bad acts are in place
precisely because of the concern that juries might infer from such
evidence that a defendant has a negative character trait and
might have acted in conformity therewith. See State v. Thornton,
2017 UT 9, ¶ 35, 391 P.3d 1016 (stating that rule 404(b)
“recognizes the dangers of exposing a jury to evidence of a
defendant’s acts of prior misconduct—specifically, the risk that
the jury will infer that the defendant has a reprehensible
character [and] that he probably acted in conformity with it”
(quotation simplified)); Verde, 2012 UT 60, ¶ 26 (stating that the
propensity ban is concerned with juries drawing “an
impermissible inference that [the defendant] acted in conformity
with the bad character suggested by his prior bad acts”).

¶38 Thus, rule 404’s ban on character evidence includes more
than just a ban on evidence tending to show that a person
possesses a generally bad character—is a “bad person”—and
acted in conformity with that bad character; it also includes a
ban on evidence tending to show that a person—who might
otherwise be a good person—has a specific negative character
trait (or propensity) and acted in conformity with that trait.
Evidence does not have to impugn a person’s entire character in
order to fall within the ambit of the propensity ban.

¶39 Applying these principles to this case, we take the State at
its word when it asserts that it did not offer the evidence of
Gallegos’s prior shank possession in an effort to prove that

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State v. Gallegos

Gallegos is a bad person. But that evidence surely did raise the
inference that Gallegos—who might otherwise be a good
person—might be a person who has a propensity for making
and keeping prison shanks while incarcerated, and that he might
have acted in conformity with that propensity in this case. Such
an inference is forbidden, despite the fact that it may not say
anything about Gallegos’s character generally.

¶40 In the end, we remain unpersuaded that a proper non-
character purpose existed to support the admission of evidence
that Gallegos possessed a different shank years earlier. Although
we acknowledge that, under prior precedent, “previous
possession of similar contraband by the defendant” is a factor
that may be considered in evaluating constructive possession, see
State v. Lucero, 2015 UT App 120, ¶ 7, 350 P.3d 237, it is important
to note that none of our state’s previous constructive possession
decisions analyzed the rule 404(b) implications of considering
“previous possession” in connection with constructive
possession. Because an act of previous possession is a prior bad
act within the ambit of rule 404(b), we consider it insufficient to
simply admit evidence of previous possession in this context,
without examining whether a proper non-character purpose
exists to support admission of the evidence.

¶41 In this case, none of the potential non-character purposes
proffered by the State seem to fit. All of the proffered purposes—
knowledge, motive, and intent—seem rooted in a forbidden
propensity inference: that because Gallegos previously
possessed a shank, he has a propensity to make and keep
shanks, and he acted in conformity with that propensity here.

B

¶42 But even if we assume, for the purposes of argument, that
in our analysis we are missing some subtle distinction between
the State’s proffered purposes and the forbidden propensity
inference, in our view any such distinction is likely to be lost on

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State v. Gallegos

a lay jury, and therefore the prior bad acts evidence has little
legitimate probative value, yet comes laden with a substantial
risk of unfair prejudice. As noted above, the third step in the
analysis is to apply rule 403 of the Utah Rules of Evidence, and
assess whether the evidence’s probative value is substantially
outweighed by the risk of unfair prejudice. See Utah R. Evid. 403;
see also State v. Killpack, 2008 UT 49, ¶ 45, 191 P.3d 17 (describing
the third step in the test as an analysis of whether the evidence
poses “a danger for unfair prejudice that substantially outweighs
its probative value” (quotation simplified)). In our view, even if
there exists a non-propensity purpose served by admission of
the prior shank evidence in this case, we conclude that the
legitimate probative value of any such evidence is substantially
outweighed by the near-certainty that the jury will draw the
tempting yet forbidden propensity inference.

¶43 When conducting a rule 403 balancing test in this context,
where fear of a forbidden propensity inference is present, courts
should weigh the evidence’s valid non-character purpose “on
the probative value side of the ledger,” and should weigh the
“evidence’s value as propensity evidence . . . on the prejudice
side of the ledger.” See State v. Fredrick, 2019 UT App 152, ¶ 45,
450 P.3d 1154 (quotation simplified); see also United States v.
Ballou, 59 F. Supp. 3d 1038, 1069 (D.N.M. 2014) (determining
that, “[w]ith all rule 404(b) evidence,” courts must undertake a
rule 403 analysis under which they “weigh the licit, probative
value of the evidence—meaning the value of the rule 404(b)
inference—against the danger of unfair prejudice—which
includes the character-propensity inference”).

¶44 In this case, the probative value of the prior acts evidence,
provided by valid non-propensity purposes, is low. As noted,
we cannot readily discern a proper non-character purpose for
the admission of this evidence. Moreover, even if we could
discern a proper non-character basis to admit this evidence for
purposes of demonstrating knowledge, motive, or intent, we

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State v. Gallegos

would be forced to confront the fact that those issues were not
actively contested at trial. As noted, Gallegos’s motive to possess
the shank was obvious, and Gallegos did not argue that he had
no motive to possess it. And Gallegos’s state of mind, in a mens
rea sense, was never really at issue; he did not argue that he
possessed the shank but did so with a non-culpable mental state.
When intent—or knowledge or motive—is “uncontested and
readily inferable from other evidence, 404(b) evidence is largely
tangential and duplicative.” See Verde, 2012 UT 60, ¶ 26. In such
situations, the prior bad acts evidence—even if it could be said to
have a proper non-character purpose—has very little marginal
probative value. That is the case here.

¶45 The risk of unfair prejudice presented by the prior acts
evidence in this case, by contrast, is high. As we have explained,
we are having difficulty discerning any proper non-propensity
purpose for admission of this evidence. And if we are having
such difficulties, we have no doubt that a lay jury would. The
trial court’s instruction on this point more or less quoted State v.
Workman, 2005 UT 66, 122 P.3d 639, and stated that the jury
could consider the prior acts evidence “for the limited purpose
of” considering “[w]hether there was a sufficient nexus
(relationship) between [Gallegos] and the weapon for [the jury]
to determine that [he] had both the power and intent to exercise
dominion and control” over the shank, but that the evidence was
“not admitted to prove a character trait . . . or to show that
[Gallegos] acted in a manner consistent with such a trait.” See id.
¶ 31. It is certainly not obvious to us how evidence that a
defendant possessed a weapon on a previous occasion tightens
the “nexus” between a defendant and a different weapon found
on a later occasion, other than through a propensity inference,
and the court gave no further assistance to the jurors to help
them understand how—if at all—the permissible purpose was
different from the impermissible purpose. In light of the nature
of the evidence and the instruction the jury was given, we

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State v. Gallegos

consider it all too likely that the jury would have drawn an
impermissible propensity inference from this evidence.

¶46 Accordingly, we conclude that any valid probative value
that this evidence may have had was limited and ultimately
substantially outweighed by the danger of unfair prejudice. We
think the best way to sum up this situation is by paraphrasing
our supreme court in Verde:

[E]ven if the past misconduct evidence in this case
could plausibly be deemed to have been aimed at a
legitimate purpose under rule 404(b), it would still
fail under the balancing framework required under
rule 403. Specifically, and for all the reasons
detailed above, we conclude that any legitimate
tendency the 404(b) evidence had to tell a narrative
of [Gallegos’s] specific intent [or knowledge or
motive] was minimal at best. And we likewise
conclude that any such legitimate purpose is far
outweighed by the obvious, illegitimate one of
suggesting action in conformity with bad character.

See Verde, 2012 UT 60, ¶ 31. Accordingly, we conclude that the
trial court exceeded its discretion when it admitted evidence that
Gallegos possessed a different shank some four years before the
incident in question.

II

¶47 Gallegos next challenges the trial court’s decision to admit
evidence that he and Cellmate were members of affiliated gangs,
specifically taking issue with the admission of photographs of
their tattoos. Gallegos invokes rule 403 of the Utah Rules of
Evidence, and asserts that this evidence was unduly prejudicial,
and that the risk of unfair prejudice substantially outweighed
the evidence’s probative value. We disagree.

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State v. Gallegos

¶48 Our supreme court has warned trial courts to “view gang-
related evidence with caution” before admitting it, because such
evidence often carries with it the risk of “potential prejudice of
guilt by association.” See State v. Gonzalez, 2015 UT 10, ¶¶ 37, 40,
345 P.3d 1168 (quotation simplified); see also State v. High, 2012
UT App 180, ¶ 26, 282 P.3d 1046 (stating that gang evidence
should be viewed “with caution due to the risk that it may carry
some unfair prejudice,” including potentially leading “the jury
to attach a propensity for committing crimes to defendants who
are affiliated with gangs or allow its negative feelings towards
gangs to influence its verdict” (quotation simplified)).
Nevertheless, gang evidence is often admissible. “In the
appropriate context, gang evidence has probative value
warranting its admission” even “over claims of prejudice.” High,
2012 UT App 180, ¶ 27 (quotation simplified); see also Gonzalez,
2015 UT 10, ¶¶ 37, 40 (stating that “even where gang-related
evidence is prejudicial, it is not necessarily unfairly prejudicial
and therefore should be admitted where it has high probative
value,” and instructing trial courts that “they may admit [gang-
related] evidence when it is introduced for a proper purpose and
under the right circumstances”).

¶49 In this case, the probative value of the gang-related
evidence was high. As the State points out, this evidence
provided a motive as to why Gallegos and Cellmate would
change their stories about who owned the shank. Even Gallegos
acknowledges that the evidence tended to show that the two
men “owe[d] a duty of loyalty to one another” that included
sometimes “tak[ing] other charges for their fellow gang
members,” and that at least some gang evidence was
“reasonably necessary for the State to try to refute Gallegos’s
defense that the shank belonged to Cellmate.” But Gallegos
claims the court admitted too much gang evidence, specifically
taking issue with the admission of photographs of Gallegos’s
and Cellmate’s tattoos, asserting that “they were highly
prejudicial and not necessary to establish gang affiliation.”

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State v. Gallegos

¶50 We take Gallegos’s point that, after the jury had already
learned that the two men were in affiliated gangs that impressed
duties of loyalty upon their members, the additional admission
of photographs of their tattoos had relatively little (and
cumulative) marginal probative value. But it is also true that the
admission of the tattoo evidence added relatively little
additional risk of unfair prejudice. Gallegos asserts that showing
the jury photographs of the tattoos suggested to the jury that it
should “reach a decision on an improper basis—that Gallegos
was ‘inked up’ and had a criminal disposition.” But the jury
already knew that the two men had a criminal history—at the
time the shank was discovered, they were sharing a cell in the
maximum-security section of the Utah State Prison. Where a
piece of evidence has relatively low probative value, but also
presents a relatively low risk of unfair prejudice, a trial court
does not abuse its discretion by concluding that the risk of unfair
prejudice from admitting the evidence does not “substantially
outweigh” its probative value. See Utah R. Evid. 403; see also, e.g.,
State v. Bowden, 2019 UT App 167, ¶ 22, 452 P.3d 503.

¶51 Accordingly, in this case the trial court did not abuse its
discretion in admitting any of the gang evidence proffered by
the State, including the photographs of Gallegos’s and
Cellmate’s tattoos.

III

¶52 Next, Gallegos challenges the introduction of evidence
related to his and Cellmate’s custody and sentencing. In
evaluating Gallegos’s argument, it is important to distinguish
between the two different types of evidence to which this
argument refers. First, Gallegos is concerned about evidence
regarding the respective sentences Gallegos and Cellmate were
serving in prison as of the date the shank was discovered.
Second, Gallegos is also referring to evidence regarding the
potential sentence Gallegos might receive if convicted of the

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State v. Gallegos

charged crime at issue during the trial. During oral argument,
Gallegos clarified that his challenge implicates both types of
sentencing evidence.

¶53 By pretrial motion, the State sought leave to admit the
first type of evidence: information about the length of sentence
both men were serving at the time the shank was discovered, as
well as their potential eligibility for parole. The State asserted
that this evidence went a long way toward explaining why
Cellmate—who was in prison serving a sentence of LWOP—
might attempt to take the criminal charge for possessing the
shank, and why Gallegos—who was eligible for parole and had
a hearing coming up—would not want to. The trial court
granted the State’s motion, and allowed the State to tell the jury
about the sentences that Gallegos and Cellmate had been serving
at the time the shank was discovered, as well as their parole
statuses. During trial, the State presented that evidence through
one of the prison investigators, who testified that Cellmate was
serving a sentence of LWOP and was therefore not eligible for
parole, but that Gallegos was serving a sentence that made him
eligible for parole and that, at the time the shank was
discovered, he had a parole hearing coming up in ten months.

¶54 The State’s pretrial motion contained no request for
permission to inform the jury about the potential sentence that
Gallegos could serve if convicted of possession of a dangerous
weapon by a restricted person—the crime that was the subject of
the trial. And the State may not have had any specific intention
to present any such evidence. However, as noted, the State did
play for the jury audio recordings of phone calls Gallegos made
from the prison; it introduced this evidence largely because,
during the conversations, Gallegos can be heard explaining the
issues with his prison “books,” and why he agreed to take
responsibility for the shank during the prison disciplinary
proceedings. But during two of those phone calls, Gallegos

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State v. Gallegos

happens to mention that he has been charged with a first-degree
felony that carries a potential sentence of “five-to-life.”

¶55 Following the introduction of the audio recordings, the
State made no further reference to the “five-to-life” statements,
either in questioning witnesses or in making argument. Gallegos,
however, mentioned the statements several times. Shortly after
the recordings were played for the jury, defense counsel asked
the prison investigator to explain what “five-to-life” meant.
After the witness explained that it meant that Gallegos “was
facing from five years in prison to life” if convicted, counsel
asked: “So for this offense, [Gallegos] could serve life in prison?”
Then during her closing argument, defense counsel again raised
the issue, noting that Gallegos faced “five-to-life” and told the
jurors to ask themselves, “Is this justice?,” and then offered her
view that it was not.

A

¶56 We have no trouble concluding that, in this case, the first
type of evidence—information about the sentences Gallegos and
Cellmate were serving at the time the shank was discovered, and
their parole statuses—was properly admitted. The probative
value of that evidence was high: it helped explain why Gallegos
and Cellmate might change their stories, once criminal charges
were filed against Gallegos, and indicate that the shank
belonged to Cellmate. Because Cellmate was serving a sentence
of LWOP and was not going to be eligible for parole no matter
what, adding another term of years onto his sentence would
make no practical difference to him. But because Gallegos had a
parole hearing coming up, being convicted of another crime
could potentially affect his parole eligibility. And the evidence
did not come with much risk of unfair prejudice. Ordinarily,
informing a jury of a defendant’s or a witness’s criminal history
might pose a risk of unfair prejudice. See, e.g., Robinson v. Taylor,
2015 UT 69, ¶ 40, 356 P.3d 1230 (holding that admission of a

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State v. Gallegos

defendant’s otherwise irrelevant criminal history unfairly
prejudiced the defendant). But here, the jury already knew, due
to the nature of the case, that these men were in a maximum-
security prison; telling the jury the nature of the sentences they
were serving did not add much appreciable risk of unfair
prejudice. Accordingly, the court did not abuse its discretion
when it granted the State’s motion and allowed it to introduce
evidence of Gallegos’s and Cellmate’s sentences and parole
statuses, relative to the sentences they were already serving.

B

¶57 We reach a different conclusion, however, with regard to
whether the second type of evidence should have been
admitted. 5 Ordinarily, a jury considering a defendant’s guilt is

5. After reviewing the record, we are not at all convinced that
Gallegos adequately preserved for our review the specific
question of whether the “five-to-life” statements should have
been admitted into evidence. Gallegos did not make a specific
request that this evidence be excluded; he certainly made no
request that the “five-to-life” references be redacted from the
audio recordings. Indeed, the State’s motion only concerned
itself with the first type of sentence/parole status evidence,
relating to the sentences Gallegos and Cellmate were already
serving, and the court’s ruling allowing admission went only to
that request. We are therefore not persuaded by Gallegos’s
contention that his opposition to the State’s motion preserved his
objection to the “five-to-life” evidence that came in later. But the
State does not argue that any part of Gallegos’s objection is
unpreserved, and has therefore waived the preservation issue.
See State v. Johnson, 2017 UT 76, ¶ 16, 416 P.3d 443 (“When a
party fails to raise and argue an issue on appeal, . . . that issue is
waived and will typically not be addressed by the appellate
court.”). In Johnson, the court declined to “address the effect” of
(continued…)

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State v. Gallegos

not allowed to hear about or otherwise consider the potential
sentence a defendant might face if convicted. See State v. Cude,
784 P.2d 1197, 1203 (Utah 1989) (stating that “[p]ossible
punishment . . . is usually not a proper matter for jury
consideration”); see also United States v. Thomas, 895 F.2d 1198,
1200 (8th Cir. 1990) (stating that “details regarding a defendant’s
possible punishment are irrelevant to the issues” that a jury
considering guilt must decide); Model Utah Jury Instructions 2d,
CR215 (2018), https://www.utcourts.gov/resources/muji/
[https://perma.cc/QY8G-9N9H] (instructing juries not to
“consider what punishment could result from a verdict of
guilty,” and that “punishment is not relevant to whether the
defendant is guilty or not guilty”). And not only is such evidence
irrelevant, it can carry the risk of unfair prejudice, because
learning about the potential sentence could cause a jury to be

(…continued)
the interaction between our doctrines of waiver and preservation
in instances where a party fails to argue on appeal that its
opponent failed to preserve an issue. Id. ¶ 17 n.5. More recently,
however, our supreme court has indicated that appellate courts
have “discretion” in this situation to either “raise a preservation
issue on our own initiative when it provides an alternative basis
for affirmance,” or to “decide to address the matter on appeal
despite the lack of preservation.” See State v. Malo, 2020 UT 42,
¶ 20 n.7, 469 P.3d 982. In this situation, we elect to address the
matter despite the apparent lack of preservation; we do so not
only because the parties have fully briefed the issue and
presented it for our review, but also because we are reversing on
the issue of the improperly-admitted shank evidence, and we
therefore make an effort to give the parties guidance regarding
the sentencing evidence that might be useful on remand. Were
we not already reversing for other reasons, we would likely have
exercised our discretion differently, for the reasons ably
described in the dissent. See infra ¶¶ 76–78.

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“swayed by [its] sympathetic or antipathetic feelings toward a
defendant because of an anticipated sentence.” See Cude, 784
P.2d at 1203.

¶58 The audio recordings in which the “five-to-life” references
were embedded were properly admitted for other purposes, and
Gallegos does not argue to the contrary. But those recordings
could have served their intended purpose—to show that
Gallegos had useless “books” and was using Cellmate’s account
for purchases, and therefore had incentive to take upon himself
all administrative blame for the shank—without the largely
extraneous “five-to-life” references. Indeed, those specific
portions of the audio recordings could have been redacted
without unduly impacting the recordings’ evidentiary value.
The “five-to-life” references therefore had very low probative
value, yet came with significant potential for unfair prejudice.

¶59 The State asserts that the information about the potential
“five-to-life” sentence came into evidence more or less
inadvertently. In its written motion, the State had not specifically
sought to introduce any evidence about the potential sentence
facing Gallegos, and the State did not make any further reference
to that evidence in support of its case. As the State correctly
points out in its brief, “the State’s focus in questioning and
argument was not on what Gallegos’s potential sentence would
be, only that it could (or not) delay his [parole] release date.” The
State also notes that it was Gallegos—and not the State—who
later attempted to use the five-to-life information to his
advantage, explicitly arguing during closing that the jury should
acquit because, among other things, imposing a sentence of five-
years-to-life under these circumstances would be unjust.

¶60 But the fact that the State may not have had a specific
intent to introduce that evidence does not alter the fact that it
should not have been admitted. And we credit Gallegos’s
argument that, after the “five-to-life” references came in, his

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State v. Gallegos

attorney had to make the best of that evidence, cf. State v. Cruz,
2016 UT App 234, ¶ 44, 387 P.3d 618 (stating that “once a court
has ruled counsel must make the best of the situation”), and
therefore attempted to make the best argument about the “five-
to-life” references that she could.

¶61 Accordingly, while the first type of sentencing evidence—
regarding the sentences Gallegos and Cellmate were already
serving—was properly admitted, the second type of sentencing
evidence—that Gallegos faced a five-years-to-life sentence for
the charged crime—was not. 6 That evidence had little probative
value, yet carried with it significant potential for unfair
prejudice, and thus was subject to exclusion under rule 403.

IV

¶62 Finally, we must analyze the prejudicial effect of the
errors we have identified. “Not every trial error requires
reversal.” State v. Klenz, 2018 UT App 201, ¶ 64, 437 P.3d 504
(quotation simplified). In particular, “[a]ny error, defect,
irregularity or variance which does not affect the substantial
rights of a party shall be disregarded.” Utah R. Crim. P. 30(a); see
also State v. S.H., 2002 UT 118, ¶ 26, 62 P.3d 444 (stating that “an
appellate court will not overturn a jury verdict for the admission
of improper evidence if the admission of the evidence did not
reasonably [a]ffect the likelihood of a different verdict”). Such
errors are not reversible unless there is a “reasonable likelihood
that the error[s] affected the outcome of the proceedings.” Klenz,
2018 UT App 201, ¶ 64 (quotation simplified). “A reasonable

6. Although we conclude that the evidence should not have been
admitted, we take pains to point out that we do not necessarily
fault the trial court, which was never specifically asked to
exclude the evidence. As noted above, supra note 5, this issue
may well have been unpreserved.

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likelihood requires a probability sufficient to undermine
confidence in the outcome.” Id. (quotation simplified).

¶63 In analyzing the prejudicial effects of improperly
admitted evidence, it is often useful to assess the strength of the
State’s case, both with and without the evidence. See Cruz, 2016
UT App 234, ¶ 48 (stating that “when assessing an error’s
harmfulness, we look, in part, to the overall strength of the
State’s case” (quotation simplified)). In this case, the State’s best
evidence was Gallegos’s and Cellmate’s previous admissions,
both the day the shank was discovered as well as during later
follow-up interviews and prison disciplinary proceedings, that
the shank belonged to Gallegos. At trial, however, Gallegos
offered a strong rebuttal to those previous admissions,
presenting evidence explaining why his original account was not
accurate, including Cellmate’s live testimony wherein Cellmate
not only testified that both the shank and the shoe in which it
was found were solely his, but described in some detail how he
had fashioned it from the bed frame. The ultimate question in
the case was whether the jury would believe the initial
admissions that the shank was Gallegos’s, or the later evidence
that the shank was Cellmate’s.

¶64 In an effort to bolster their respective sides of that
question, both the State and Gallegos pointed to evidence
tending to corroborate their version of events. Gallegos pointed
out that he had good reason to want to falsely accept
responsibility for the shank when the only consequence at issue
was internal prison discipline, such as fines or different cell
assignments, because his “books” were full and both he and
Cellmate wanted to keep Cellmate’s books clean, and because he
was trying to protect Cellmate’s ability to be moved out of
maximum security and into the general prison population. The
State, in contrast, pointed out that Cellmate had every reason to
falsely accept responsibility for the shank during the criminal
proceedings, because he was serving a sentence of LWOP while

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Gallegos was still eligible for parole, and another conviction
could hurt his chances of getting paroled.

¶65 In this context, introduction of evidence that Gallegos had
previously possessed a similar shank was powerful evidence
that may very well have made a difference to the jury’s
evaluation of which version of events to believe. One indication
that this evidence was important was the State’s emphasis of it
during closing argument, including particular emphasis that the
previous shank was very similar to the present shank. See State v.
Ellis, 2018 UT 2, ¶ 43, 417 P.3d 86 (stating that one factor leading
to the conclusion that the admission of the evidence was not
harmless was that “[t]he prosecution emphasized this testimony
during closing argument”). And during the jury instruction
conference, outside the presence of the jury, the State specifically
requested that the instructions regarding constructive possession
include reference to previous possession, asserting that previous
possession was “pretty important” and was “a pretty pertinent
element” in this case. Under the circumstances, we agree that the
prior shank possession evidence was important, and conclude
that there was a reasonable likelihood of a different outcome had
that evidence been withheld from the jury’s consideration.

¶66 The other piece of improperly admitted evidence—the
apparently inadvertent references to “five-to-life”—is less of a
concern, and would not have warranted reversal on its own. As
noted above, a jury determining whether a defendant is guilty
should not consider what punishment might result from a guilty
verdict. But in this case, Gallegos’s attorney appeared to
consider this evidence somewhat helpful, at least in a way, to her
client’s cause: on several occasions she reminded the jury that
the potential sentence was five-years-to-life and expressed her
view that such a punishment was out of proportion to the
severity of the charged crime. On balance, the amount of
prejudice visited upon Gallegos from the improper admission of
this piece of evidence was likely slight.

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¶67 In the end, we conclude that there is a reasonable
likelihood that the outcome of the trial would have been
different had the evidence of Gallegos’s prior shank possession
been excluded. Because our confidence in the outcome of the
trial is sufficiently undermined, we must reverse.

CONCLUSION

¶68 The trial court did not abuse its discretion by admitting
evidence that Gallegos and Cellmate were in affiliated gangs,
including evidence that each of them had adorned their bodies
with gang-related tattoos. The court likewise did not abuse its
discretion in admitting evidence regarding the sentences that
Gallegos and Cellmate were serving at the time the shank was
discovered in their shared cell, or their then-current parole
statuses. But evidence that Gallegos previously possessed a
similar shank should not have been admitted, nor should
evidence that the potential sentence upon a guilty verdict in this
case was to be “five-to-life.” And admission of the previous-
shank evidence was not harmless, because there is a reasonable
likelihood that, without it, the outcome of the trial would have
been different.

¶69 Accordingly, we reverse Gallegos’s conviction and
remand this case for a new trial.

POHLMAN, Judge (concurring and dissenting):

¶70 I respectfully concur in part and dissent in part.

¶71 I agree with the majority’s analysis in Part II concluding
that the trial court did not abuse its discretion in admitting gang
evidence, including the photographs of Gallegos’s and
Cellmate’s tattoos. I also agree with the majority’s analysis in

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Part III.A rejecting Gallegos’s challenge to the admission of
evidence about the respective prison sentences he and Cellmate
were serving when the shank was discovered.

¶72 I part ways with my colleagues in their conclusion in Part
III.B that evidence of Gallegos’s potential sentence was admitted
in error. Where Gallegos did not object to the admission of this
evidence, I believe we have no grounds on which to reverse.

¶73 I also disagree with the majority’s conclusion in Parts I
and IV that Gallegos’s conviction should be reversed on the basis
that the trial court erred in admitting evidence of his prior shank
possession. I view questions of admissibility under rule 404(b) as
among the most difficult to analyze, and the combination of our
precedent and the deferential standard of review leaves me less
convinced than my colleagues that the prior shank evidence
should have been excluded. But even if I were to agree with the
majority’s analysis on this issue, I would still affirm Gallegos’s
conviction. Unlike my colleagues, I do not consider it reasonably
likely that the jury would have returned a different verdict had
the prior shank evidence not been admitted. And on that basis, I
would affirm.

I. Potential Sentence Evidence

¶74 Gallegos argues that the trial court abused its discretion in
allowing for the admission of his statements (on recorded phone
calls) that he was facing a “five-to-life” sentence if convicted in
this case. The majority begins its analysis on this point by
observing that Gallegos did not preserve an objection to the
admission of this evidence. See supra note 5. I agree with that
observation.

¶75 As part of the State’s pretrial motion, the State provided
Gallegos with a transcript of the excerpts of the audio recordings
it intended to introduce at trial so that Gallegos could focus his
objection. Gallegos then moved to exclude certain portions of the

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recordings, but he lodged no objection to the admission of the
“five-to-life” statements. Similarly, Gallegos did not object at
trial when the State played the audio recordings of the phone
calls in which the “five-to-life” statements could be heard. 7

¶76 As the majority notes, although the State did not raise the
issue of preservation, we have the discretion to reject Gallegos’s
challenge on that basis. See supra note 5 (citing State v. Malo, 2020
UT 42, ¶ 20 n.7, 469 P.3d 982). I would exercise that discretion
here.

¶77 It is well-settled that “[o]ur adversary system . . . relies
generally on objections from parties to police the admissibility of
evidence,” and “[w]e do not require or even expect our trial
judges to exercise their own independent judgment on the
question of admissibility.” State v. Hummel, 2017 UT 19, ¶ 109,
393 P.3d 314. And that, I believe, is why our supreme court has
stated that there is “no room for reversal of a trial judge under
an abuse of discretion standard on a ground that was not
specifically presented to the district court.” State v. Thornton, 2017

7. This appears to have been intentional. The State drew no
attention to the “five-to-life” statements, but, as the majority
notes, defense counsel drew specific attention to them in cross-
examination of the prison investigator and suggested to the jury
that justice would not be served if a conviction for being caught
with a shank were to lead to such a lengthy sentence. See supra
¶¶ 8, 55. The majority suggests that counsel was just making the
best of the situation once the evidence came in. Supra ¶ 60. But I
view it differently. This was not a situation where counsel was
surprised by a statement from a live witness or where the court
had ruled the evidence admissible over the objection of counsel.
If counsel had not wanted the jury to hear the “five-to-life”
statements, counsel had every opportunity to seek their
exclusion.

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State v. Gallegos

UT 9, ¶ 43, 391 P.3d 1016; see also State v. King, 2006 UT 3, ¶¶ 23–
24, 131 P.3d 202 (finding no abuse of discretion when the trial
court did not consider an issue sua sponte).

¶78 Here, the question of the admissibility of the evidence of
Gallegos’s potential sentence is one we review for abuse of
discretion. See supra ¶ 11. Because Gallegos did not object to the
admission of this evidence, I find no room to conclude that the
trial court abused its discretion in not sua sponte excluding this
evidence.

II. Prior Shank Possession Evidence

¶79 As the majority explains, “not every trial error requires
reversal.” Supra ¶ 62 (quotation simplified); State v. Klenz, 2018
UT App 201, ¶ 64, 437 P.3d 504. An error in this case would
require reversal only if it is reasonably likely that the decision to
admit evidence of Gallegos’s previous shank possession altered
the jury’s verdict. See State v. Kohl, 2000 UT 35, ¶ 17, 999 P.2d 7
(“We will reverse an erroneous evidentiary ruling only if, absent
the error, there is a reasonable likelihood that there would have
been a more favorable result for the defendant.” (quotation
simplified)). I do not think that it did.

¶80 To prove possession in this case, the State advanced the
theory that Gallegos constructively possessed the shank. See
generally State v. Workman, 2005 UT 66, ¶¶ 31–33, 122 P.3d 639
(describing how to prove possession on a constructive
possession theory). The State’s theory required it to prove that
there was “a sufficient nexus” between Gallegos and the shank
to permit an inference that he “had both the power and the
intent to exercise dominion and control” over the weapon. See
State v. Clark, 2015 UT App 289, ¶ 14, 363 P.3d 544 (quotation
simplified). In meeting its burden, the State did not have to
prove that Gallegos possessed the shank to the exclusion of
Cellmate. In fact, the State’s theory at trial was that “these two
men jointly possessed this weapon.”

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¶81 I believe that even without the prior shank evidence, the
State would have easily convicted Gallegos for constructive
possession because its case against him was unusually strong.

¶82 To begin with, Gallegos admitted ownership of the shank
not once, not twice, but three different times. He claimed
ownership on the day it was found in his prison cell; he claimed
ownership a few weeks later as part of a prison administrative
hearing; and, he again claimed ownership during a subsequent
interview with a prison investigator, even identifying where the
shank was found. And when asked by the investigator why he
had the shank, Gallegos responded, “Uh, we’re in prison,” and
commented, “It’s hit or miss, sometimes you guys get me,
sometimes you don’t.” The jury also heard that the shank
appeared to have been carved out of the top bunk where
Gallegos slept.

¶83 But that’s not all. The jury heard testimony that shanks
are “pretty common” in the prison and that Gallegos and
Cellmate, as members of affiliated gangs, are “supposed to have
some sort of weapon with them at all times.” A gang expert
testified that it is “very common” for gang members to share
shanks, explaining that they may have to share “between each
other, between cell mates.” And consistent with the expert’s
testimony, Cellmate confirmed for the jury that he and Gallegos
would “share stuff.”

¶84 The jury also listened to recordings of Gallegos’s phone
calls in which he discussed the charges against him. Rather than
disavowing knowledge of the shank, he explained that he was
hopeful the shank possession case against him would “get
dismissed,” saying, “I already got . . . my little strategy . . .
figured out ’cause things played out a certain way.” He said, “I
got . . . somebody that’s taken the . . . puttin’ their hand out for it
. . . that it was theirs.”

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¶85 All this evidence points heavily to Gallegos’s guilt. And
even though Cellmate testified at trial that he made the shank
and hid it in his shoe, 8 he also told the jury that he and Gallegos
“shared things,” and he never claimed that Gallegos was
unaware of the shank. That is significant. The State did not need
to prove that the shank belonged exclusively to Gallegos. It had
to prove only that Gallegos had the power and intent to exercise
dominion and control over it. And given Gallegos’s multiple
admissions, combined with the evidence that Gallegos and
Cellmate were prone to share things, including weapons, I have
no trouble concluding that the jury would have convicted
Gallegos even without the prior possession evidence.

¶86 The majority acknowledges much of this evidence but
believes it is reasonably likely that it was the evidence of
Gallegos’s prior shank possession that swayed the jury toward a
conviction. I disagree for several reasons.

¶87 First, while rule 404(b) evidence has the potential to be
damaging, evidence of Gallegos’s prior shank possession was
not particularly revelatory. After all, the jury heard evidence that
Gallegos claimed ownership of the shank in this case—three
different times, on different days, to different people. Thus,

8. When asked why he claimed ownership of the shank at trial,
after having previously disavowed such ownership, Cellmate
responded, “Because it was mine, and I don’t feel it’s right to
have somebody else take the fall for it.” As noted above, the jury
could have still convicted Gallegos of constructive possession
even if it was inclined to believe Cellmate’s belated confession.
But the jury also had plenty of reason to distrust Cellmate. His
claims of concern likely fell on deaf ears after the jury learned
that he was in prison for killing three people (and trying to kill a
fourth) and had previous convictions for theft by deception and
forgery.

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State v. Gallegos

hearing evidence that he claimed ownership of a different shank
several years earlier was unlikely to carry significant weight.

¶88 Second, in addition to admitting that he possessed the
shank found in this case, Gallegos suggested to the prison
investigator that he has possessed shanks at other times when he
said, “It’s hit or miss, sometimes you guys get me, sometimes
you don’t.” This evidence, along with evidence from the gang
expert that it was common for gang members to carry and share
homemade weapons, blunted the admission of his earlier shank
possession.

¶89 Third, the majority says that the State emphasized the
prior possession evidence in closing. See supra ¶ 65. I read the
record differently. It is true that the prosecutor mentioned the
prior shank possession in his closing statement. But the State
placed no greater emphasis on it than the other evidence
pointing to Gallegos’s guilt. The State did not treat the prior
possession as the centerpiece of its story. Rather, it treated it as
just one piece of evidence in a particularly incriminating puzzle.

¶90 Fourth, the trial court gave a limiting instruction on the
previous shank possession evidence, advising the jury to
consider the evidence for “the limited purpose” of considering
whether “there was a sufficient nexus” between the shank and
Gallegos and instructing the jury not to convict in this case on
the basis that Gallegos may have committed another act at some
other time. See supra ¶ 6. This instruction further tempered any
remaining effect the admission of the prior possession evidence
may have had. See State v. Calvert, 2017 UT App 212, ¶ 45, 407
P.3d 1098.

¶91 In sum, I would affirm Gallegos’s conviction. I see no
grounds to conclude that the trial court abused its discretion in
not sua sponte excluding the evidence of Gallegos’s potential
sentence where Gallegos did not object to its admission. And
even assuming error in the admission of evidence of the

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State v. Gallegos

previous shank possession, I am confident that given the unique
evidence in this case, the jury would still have convicted
Gallegos without it.

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