In Dickey v. State, the Supreme Court of Nevada ruled that the State properly used prior bad act evidence to prove intent, but erred in introducing the same evidence to prove identity under Nevada’s Petrocelli test.
The Facts & Procedural History
Bryce Dickey picked up Brittany Ujlaki from her home and she never returned. The family reported her missing, and she was found dead three days later in a remote area. Ujlaki had been sexually assaulted and murdered. The cause of death was a stab wound to the neck and strangulation. The evidence against the defendant included:
“[A] used condom in a nearby bush that matched a box of condoms from Dickey’s truck. The found condom contained DNA evidence: Dickey’s DNA evidence on the inside and Brittany’s on the outside. Dickey’s DNA was also found on swabs taken from Brittany’s neck and fingernails, as well as on chewing tobacco found near Brittany’s body.”
Additional evidence included Snapchat geolocation data that placed Dickey and Ujlaki at the location where Ujlaki’s body was found. Moreover, there was video surveillance showing Dickey’s truck driving past Ujlaki’s high school without stopping on the day she went missing (Dickey had told police he dropped her off at her school).
During the trial, the State called Dickey’s ex-girlfriend to testify that he had strangled her on four different occasions without consent during otherwise consensual sexual encounters in order to prove Dickey’s identity and intent. Dickey objected to her testimony, arguing it constituted inadmissible character evidence. The trial court allowed her to testify to prove Dickey’s identity.
Dickey was found guilty of first-degree murder with the use of a deadly weapon and sexual assault with the use of a deadly weapon. The defense appealed the trial court’s ruling.
The Law
Nevada law prohibits the introduction of character evidence “for the purpose of proving that the person acted in conformity therewith on a particular occasion[.]”
However, there are exceptions under which character evidence or “other crimes, wrongs or acts” may be introduced for nonpropensity purposes such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
The trial court must apply the Petrocelli test in order to determine whether or not to admit character evidence or evidence of other crimes, wrongs, or acts for non-propensity purposes.
The Petrocelli test requires the trial court to conduct an evidentiary hearing and admit prior bad act evidence if 1) the act is relevant, 2) it is proven by clear and convincing evidence, and 3) it is not substantially more prejudicial than probative.
The trial court must refer to the Randolph factors in order to conduct the balancing test required in step three of the Petrocelli test. In Randolph, the Supreme Court of Nevada declared that:
“[w]hen balancing probative value against the danger of unfair prejudice, courts consider a variety of factors, ‘including the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility'”
The Court’s Reasoning — Prior Bad Act Evidence Proving Identity
The Court affirms the trial court’s decision to admit evidence of Dickey strangling his ex-girlfriend on prior occasions to prove intent but NOT to prove identity.
The Court reasons that prior bad act evidence to prove identity is probative, and should be admitted, “only to the extent that distinctive ‘common marks’ give logical force to the inference of identity.” The Supreme Court concludes:
“Here, the sole act of choking during sex does not qualify as a distinctive common mark creating a logical inference that a separate instance of choking was done by the same person. Discrepancies between Dickey’s conduct towards the ex-girlfriend and the strangulation of Brittany further undercut any inference regarding identity: Brittany’s autopsy suggested she was strangled with a ligature; the ex-girlfriend testified Dickey choked her with his hand.”
The Court rules the prior bad act evidence was thus improperly admitted to prove identity.
The Court’s Reasoning — Prior Bad Act Evidence Proving Intent
The Court then considers the trial court’s decision to admit Dickey’s ex-girlfriend’s testimony to prove intent. The Court reasons that it presented “evidence of Dickey’s increasing violence around sex and intent to engage in the choking activity in the face of explicit nonconsent.”
Further, “Dickey’s willingness to choke a sexual partner without consent is relevant to prove his intent to strangle Brittany without her consent as part of their sexual interaction.” Thus, step one of the Petrocelli test is satisfied.
Step two of the Petrocelli test is met because “[t]he ex-girlfriend’s testimony sufficiently established the other act by clear and convincing evidence.”
The Court holds step three of the Petrocelli test to be satisfied under the six factors outlined in Randolph, finding that:
“[F]irst, the ex-girlfriend testified under oath regarding the instances of choking … Second, Dickey’s choking of the ex-girlfriend was arguably similar to the offense against Brittany, as both involved elements of choking along with sexual contact … Third, the ex-girlfriend testified that the four instances of choking occurred within the year preceding Dickey’s arrest. As to the fourth and fifth factors, Brittany’s consent, or lack of consent, to sexual contact with Dickey is an essential question in this case … The ex-girlfriend’s testimony presented evidence of Dickey’s past violence around sex, including intent to engage in the choking activity without consent.”
The Bottom Line
The Court made the right call on admitting the prior bad act evidence to prove intent but not identity.
In Nevada, admitting prior bad act evidence to prove identity requires “distinctive ‘common marks’ [that] give logical force to the inference of identity.” Obviously, the act of strangling someone has no such distinctive marks that infer identity — especially since the manner of strangling in Brittany’s death and during the incidents with Dickey’s ex-girlfriend were dissimilar.
However, the trial court’s decision to admit the prior bad act evidence to prove intent was right on the mark under Nevada’s Petrocelli test. All three prongs were clearly met. Prior instances of strangling a sexual partner, without consent, is classic prior bad act evidence. Direct testimony from a witness will almost always prove prior bad acts by clear and convincing evidence. Lastly, the balancing test required in step three of the Petrocelli test overwhelmingly cuts against Dickey.
I will note, however, that the trial court erred by applying the incorrect balancing test during its step three analysis. The Supreme Court deemed the application of the wrong balancing test, as well as admitting the prior bad act evidence to prove identity, to be harmless error, and found the prior bad act evidence was otherwise admissible to prove intent.
I think this was an easy call for the Court, both in correctly analyzing the proper use of prior bad act evidence, and in its application of the harmless error doctrine.
John Q. Prosecutor