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Feb. 20, 2026 Get Citation Alerts Download PDF Add Note

State v. Alvarado-Rodriguez

Court of Appeals of Utah

• Citations: 2026 UT App 25

• Docket Number: Case No. 20230939-CA

• Opinion

• Authorities (18)

• Cited By (0)

• Summaries (0)

• Similar Cases (173)

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Combined Opinion

2026 UT App 25

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
AARON ALVARADO-RODRIGUEZ,
Appellant.

Opinion
No. 20230939-CA
Filed February 20, 2026

Third District Court, Salt Lake Department
The Honorable Kara Pettit
No. 181905039

Robert T. Denny, Attorney for Appellant
Derek E. Brown and Connor Nelson,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion.
JUDGE DAVID N. MORTENSEN concurred in result, with opinion.
JUDGE RYAN D. TENNEY concurred, with opinion.

HARRIS, Judge:

¶1 A jury convicted Aaron Alvarado-Rodriguez of sexually
abusing his eleven-year-old stepdaughter. During trial, and over
his objection, the State presented evidence that Alvarado-
Rodriguez had sexually abused another child too. Alvarado-
Rodriguez appeals his conviction, asserting that the trial court
abused its discretion in admitting evidence about his abuse of the
other child. We reject Alvarado-Rodriguez’s arguments and
affirm his conviction.
State v. Alvarado-Rodriguez

BACKGROUND 1

¶2 Rachel 2 lived with Alvarado-Rodriguez as well as her
mother, her two brothers, a cousin, and two of Alvarado-
Rodriguez’s coworkers. Rachel’s mother had been married to
Alvarado-Rodriguez since around 1993, and they had the two
boys together, but Rachel was her mother’s child from a previous
relationship.

¶3 One night in 2001, when Rachel was eleven years old,
Alvarado-Rodriguez walked into her room. Rachel pretended to
be asleep, but she recalled being afraid because his approach “was
typical of what he had done before.” She said that in the past,
when she was about four years old, Alvarado-Rodriguez had “put
his hand underneath [her] underwear and tickled [her] vagina.”
After that, she sometimes wore jeans to bed to make it harder for
Alvarado-Rodriguez to slide his hand under her pants.

¶4 On this occasion, Alvarado-Rodriguez knelt beside
Rachel’s bed and unzipped his pants. He then “grabbed” Rachel’s
hand, “put it on his penis,” and moved it “up and down” with his
hand. Rachel asked him, “What are you doing?” and he mumbled,
“I’m sorry,” as he left the room. Rachel stayed in her bed, crying
for about forty-five minutes. She then confronted Alvarado-
Rodriguez in front of her mother, and she demanded that
Alvarado-Rodriguez tell her mother what he had just been doing
in her room. Alvarado-Rodriguez repeatedly told Rachel’s mother

1. “On appeal, we review the record facts in a light most favorable
   to the jury’s verdict and recite the facts accordingly. We present
   conflicting evidence only as necessary to understand issues raised
   on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (cleaned
   up).

2. We use pseudonyms for the children in this opinion.

20230939-CA 2 2026 UT App 25
State v. Alvarado-Rodriguez

that he was “sorry,” but Rachel’s mother seemed “oblivious,” like
she “didn’t know what was going on.”

¶5 During this confrontation, Rachel’s eighteen-year-old
cousin walked in. Her cousin’s understanding of the event was
that Alvarado-Rodriguez had been in Rachel’s room “touching
her inappropriately,” and she insisted that Rachel sleep in her
room going forward. The abuse was not reported to the police at
that time. About a week after this incident, Rachel left Alvarado-
Rodriguez’s residence and moved out of state.

¶6 Rachel reported the abuse in 2017 when she was twenty-
six years old, explaining that she was concerned that Alvarado-
Rodriguez might abuse her nieces.

¶7 After Rachel’s report, a detective interviewed Alvarado-
Rodriguez at his workplace. The detective told Alvarado-
Rodriguez that Rachel’s friend, Alison, had also reported being
abused by him when she was a child under the age of fourteen.
Alvarado-Rodriguez denied both allegations in general but
acknowledged that Rachel had accused him of inappropriately
touching her when she was about eleven years old. And he
admitted that he went into Rachel’s room on the night of the
incident, but he claimed that it was because he heard her
“screaming.” He also acknowledged that he had told her that “he
was sorry,” but he didn’t explain why he apologized. In addition,
he admitted that he had touched Rachel’s “stomach area, or
maybe the hips or the butt area,” conceding that the touching was
“[m]aybe . . . more than what [he] was supposed to do” but
expressing that he “didn’t touch her like [he] wanted to do.”

¶8 Alvarado-Rodriguez was charged with one count of
aggravated sexual abuse of a child based on the incident with
Rachel in 2001. Before trial, the State informed Alvarado-
Rodriguez that it intended to present evidence of two other
instances in which he had previously committed child
molestation. First, the State indicated that it would present

20230939-CA 3 2026 UT App 25
State v. Alvarado-Rodriguez

evidence that Alvarado-Rodriguez “had touched [Rachel’s]
vagina previously” when she was younger. Alvarado-Rodriguez
did not object to the introduction of this evidence. Second, the
State gave notice that it would seek to admit evidence that
Alvarado-Rodriguez had abused Alison in another country while
Alvarado-Rodriguez was living in a crowded house with Alison
and others. Specifically, the State intended to present evidence
that when Alison was about eight years old, Alvarado-Rodriguez
went into her room, laid down with her, “put his hands down the
front of her pants,” and touched her vagina.

¶9 Alvarado-Rodriguez moved to exclude the evidence
regarding Alison, arguing that its probative value was low
because Alison’s account of abuse differed, in ways he believed
were material, from his alleged abuse of Rachel. He also argued
that the circumstances in which the alleged abuse of Alison
occurred—namely, living in poverty in a foreign country—would
infuse “bias unrelated to the propensity to commit child
molestation” and “confuse the issue before the jury.” And he
asserted that Alison’s testimony would be needlessly cumulative
and would waste time in light of Rachel’s testimony that he had
previously abused her.

¶10 At oral argument on the motion, Alvarado-Rodriguez
argued that the alleged abuse of Alison was “very different than
[the] hand on a penis” allegation involving Rachel, rendering it
“different enough” that it should be excluded. The State agreed
that the circumstances of where the abuse occurred and the
conditions of poverty surrounding it should not come in, but it
argued that, under rules 403 and 404(c) of the Utah Rules of
Evidence, evidence of Alvarado-Rodriguez’s abuse of Alison
should be admissible because it showed that Alvarado-Rodriguez
had a propensity to molest children. The court determined that it
would allow evidence about Alison to be introduced at trial, but
it limited Alison’s testimony to the conduct itself and not the
living situation. With that limitation, the court concluded that

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State v. Alvarado-Rodriguez

“the probative value of propensity would not be substantially
outweighed by the danger of unfair prejudice,” reasoning that
while the “conduct is not identical,” it was “similar and the
similarities [were] enough” to give the evidence “pretty
substantial probative value” regarding propensity.

¶11 At trial, Rachel, her cousin, and the detective who
interviewed Alvarado-Rodriguez testified to the facts as
recounted above. Alison also testified, stating that in the late 1990s
when she was around eight years old, Alvarado-Rodriguez
entered her room, laid down next to her in bed, put his hand
down the front of her underwear, put his fingers in her labia area,
and moved them in a circular motion for about five minutes. She
said that he then pulled his hand out of her underwear, kissed her
on the lips, and threatened to come back and do it again. Alison
testified that Alvarado-Rodriguez abused her in this way between
four and six times. She also stated that she had known Rachel
since Alison was about four or five years old. And Alison recalled
that, when she was around ten years old, Rachel told her that she
“woke up one time and [Alvarado-Rodriguez] had his penis in
her hand.”

¶12 After deliberation, the jury convicted Alvarado-Rodriguez
as charged of abusing Rachel.

ISSUE AND STANDARD OF REVIEW

¶13 Alvarado-Rodriguez now appeals his conviction, asserting
that the trial court abused its discretion in denying his motion to
exclude Alison’s testimony. “We review a trial court’s evidentiary
rulings for an abuse of discretion.” State v. Garcia, 2022 UT App
77, ¶ 25, 526 P.3d 1238.

20230939-CA 5 2026 UT App 25
State v. Alvarado-Rodriguez

ANALYSIS

¶14 In challenging the trial court’s evidentiary ruling,
Alvarado-Rodriguez takes issue only with the court’s rule 403
balancing of the rule 404(c) evidence. He argues that the court
should have excluded Alison’s testimony “because it had low
probative value” and “carried a high risk of prejudice where it
described more serious claims of abuse against an even younger
child.” Alvarado-Rodriguez specifically claims that the admission
of evidence of his abuse of Alison was unfairly prejudicial because
it described “the more serious conduct of object rape compared to
Rachel’s charges of aggravated sexual abuse.” Finally, Alvarado-
Rodriguez asserts that without Alison’s testimony, there is a
reasonable probability that he would have been acquitted since
the State’s case against him for his abuse of Rachel rested on a
“weak evidentiary foundation.”

¶15 Generally, “[e]vidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on
a particular occasion the person acted in conformity with the
character.” Utah R. Evid. 404(b)(1). In most cases, the prosecution
“must articulate a nonpropensity purpose” before other-acts
evidence will be admitted. State v. Modes, 2020 UT App 136, ¶ 14,
475 P.3d 153. But in cases of alleged sexual abuse of a child under
the age of fourteen, the basis and purpose of the admissibility of
other-acts evidence is materially different. In those cases, “the
court may admit evidence that the defendant committed any
other acts of child molestation to prove a propensity to commit
the crime charged.” Utah R. Evid. 404(c)(1).

¶16 Several features of this exception are notable. First, the
defendant must be accused of “child molestation” for the

20230939-CA 6 2026 UT App 25
State v. Alvarado-Rodriguez

exception to apply. 3 Id. Second, the reason for the admission of the
other-acts evidence is to potentially prove that the defendant has
a “propensity to commit the crime charged,” id., namely, an act of
child molestation. Thus, the rule does not require the articulation
of “a non-propensity purpose, instead allowing such evidence
even if there is no other plausible or avowed purpose for such
evidence.” State v. Garcia, 2022 UT App 77, ¶ 29, 526 P.3d 1238
(cleaned up). Third, “the rule does not require that a defendant be
convicted of a crime for the associated other-acts evidence to be
admissible.” Modes, 2020 UT App 136, ¶ 17. Stated otherwise, “the
ultimate legal disposition of a previous act of child molestation is
largely irrelevant to whether the evidence is admissible under
rule 404(c).” Id. Indeed, “the rule addresses evidence that the
defendant committed previous acts of child molestation, and it is
not necessarily concerned with whether the defendant was ever
previously convicted for any such acts.” Id.

¶17 Here, Alvarado-Rodriguez acknowledges that the
evidence concerning Alison meets the requirements of rule 404(c),
but he contends the evidence should nonetheless have been
excluded under rule 403. Alvarado-Rodriguez is correct that
before a court can admit rule 404(c) evidence, “it must weigh the
evidence’s probative value against its potential for prejudice
under rule 403.” State v. Ring, 2018 UT 19, ¶ 28, 424 P.3d 845.
Evidence that is otherwise admissible under rule 404(c) is still
subject to exclusion “if its probative value is substantially
outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”
Utah R. Evid. 403.

1. Rule 404(c)(3) of the Utah Rules of Evidence defines “child molestation” to mean “an act committed in relation to a child under the age of 14 which would, if committed in this state, be a sexual offense or an attempt to commit a sexual offense.”

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State v. Alvarado-Rodriguez

¶18 In challenging the trial court’s ruling, Alvarado-Rodriguez
makes two arguments. First, he argues that Alison’s testimony
had “little probative weight.” Second, he asserts that it carried “a
high risk of unfair prejudice.” We disagree on both counts.

¶19 Alison’s testimony had significant probative value. As
noted, because this evidence cleared the initial rule 404(c) hurdle,
this evidence could be admitted in this case to prove that
Alvarado-Rodriguez had a propensity to molest children. When
properly admitted under rule 404(c), such evidence has a
tendency to be powerfully probative. See State v. Fredrick, 2019 UT
App 152, ¶ 45, 450 P.3d 1154 (“Evidence admitted pursuant to rule
404(c) . . . is admitted precisely because of its (usually powerful)
value as propensity evidence.”).

¶20 Alvarado-Rodriguez resists this intuitive conclusion by
making two arguments. First, he asserts that the probative value
of Alison’s testimony was compromised because her allegations
were over twenty years old, “did not result in a conviction, did
not lead to prosecution, and otherwise lack[ed] corroboration.”
But as explained, the fact that an allegation has not yet led to a
conviction does not, by itself, mean that the evidence has low
probative value, and it certainly does not prevent its admissibility.
See Modes, 2020 UT App 136, ¶ 17. The key question is whether
Alvarado-Rodriguez committed the previous acts, not whether he
was convicted of charges based on them. Id. And while Alison’s
testimony about the additional acts of child molestation “largely
hinged on the jury’s evaluation of her credibility,” Garcia, 2022 UT
App 77, ¶ 34, this does not mean that evidence of those acts was
not probative of Alvarado-Rodriguez’s propensity to sexually
abuse children. Moreover, the interval of time between the act of
abuse and the report of abuse does not, standing alone, diminish
its probative value. See Ring, 2018 UT 19, ¶ 30 (“[T]he passing of
time, on its own, is not enough to rob [rule] 404(c) evidence of its
probative value.”). Alison’s delay in reporting the abuse is no
more significant than Rachel’s delayed report. Cf. State v. Bair,

20230939-CA 8 2026 UT App 25
State v. Alvarado-Rodriguez

2012 UT App 106, ¶ 47, 275 P.3d 1050 (noting that Utah courts
recognize that “delayed discovery and reporting are common in
child sexual abuse cases” (cleaned up)).

¶21 Second, Alvarado-Rodriguez asserts that his alleged abuse
of Alison had “little probative value to show that [he] had the
propensity to commit the conduct [Rachel] alleged” because it
involved a different and more serious type of conduct with a
younger child. Alvarado-Rodriguez’s assertion misses the mark.
While there are certainly some differences between the acts Alison
described and the acts Rachel described, those differences are not
so great as to meaningfully reduce the probative value of Alison’s
testimony. Indeed, we agree with the State’s assertion that “the
similarities” between the two sets of described acts “far outweigh
the differences that would be lost on a jury untrained in the
specifics of the law.” But regardless of whether the acts Alison
described might have been chargeable as object rape rather than
sexual abuse, 4 we agree with the State’s contention that “[t]he
average juror could disagree on which act was more serious and
violative of a young girl.” And more to the point of the question

1. Compare Utah Code § 76-5-404.1(1), (3)(h), (3)(j) (2000) (“A person commits aggravated sexual abuse of a child when in conjunction with [touching the genitalia of any child or otherwise taking indecent liberties with a child] . . . the offense was committed by a person who occupied a position of special trust in relation of the victim . . . or . . . the accused caused the penetration, however slight, of the genital or anal opening of the child by any part or parts of the human body other than the genitals or mouth.”), with id. § 76-5-402.3(1) (“A person commits object rape of a child when the person causes the penetration or touching, however slight, of the genital or anal opening of a child who is under the age of 14 by any foreign object, substance, instrument, or device, not including a part of the human body, with intent to cause substantial emotional or bodily pain to the child or with the intent to arouse or gratify the sexual desire of any person.”).

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State v. Alvarado-Rodriguez

before us here, both Rachel’s testimony and Alison’s testimony
concerned violative sexual acts involving girls within the age
range of eight to eleven, the two sets of acts were described to
have occurred within a few years of each other, and in both
instances, Alvarado-Rodriguez was alleged to have abused the
girl after walking into the room where she was sleeping and then
proceeding to touch her in a sexual manner. In sum, although
there were some differences, there were certainly a number of key
similarities too. As a result, the trial court did not abuse its
discretion in determining that, despite the differences in the
nature of the acts described, evidence that Alvarado-Rodriguez
had sexually abused Alison had high probative value in a trial
about whether Alvarado-Rodriguez sexually abused Rachel
during the same general time period.

¶22 And while Alison’s testimony had significant probative
value, it did not carry significant risk of unfair prejudice. In this
context, Alvarado-Rodriguez must do more than simply point out
that Alison’s testimony constituted propensity evidence. See
Fredrick, 2019 UT App 152, ¶ 46 (“[I]n order for rule 404(c)
evidence to be unfairly prejudicial, the defendant must be able to
show something other than the propensity nature of the evidence
that weighs on the prejudice side of the equation.”). Along these
lines, Alvarado-Rodriguez first argues that Alison’s testimony
was unfairly prejudicial for the same reasons that he asserted it
lacked probative value: that it involved a potentially more serious
crime perpetrated against a somewhat younger child and that it
occurred over twenty years prior. But as we explained above,
these differences do not significantly detract from the evidence’s
probative value, and for the same reasons, they do not
significantly contribute to a risk of unfair prejudice.

¶23 Alvarado-Rodriguez next argues that Alison’s testimony
was unfairly prejudicial because it contained “technicolor details”
apart from the abuse. See id. (“[A] defendant may be able to
demonstrate that the proposed evidence contains technicolor

20230939-CA 10 2026 UT App 25
State v. Alvarado-Rodriguez

details, beyond its tendency to show a propensity for child
molestation, that might be unduly prejudicial.”). As examples of
such “technicolor details,” Alvarado-Rodriguez points to Alison’s
testimony about how the abuse impacted her and about whether
the abuse was reported to the police. This assertion is unavailing.
As noted, the court had already taken steps to limit Alison’s
testimony and remove certain potentially inflammatory details.
And the things that Alvarado-Rodriguez now identifies are just
not the sort of extraneous, inflammatory, or graphic details that
give rise to unfair prejudice. At most, these details represent
relatively neutral information necessary to establish the context of
the abuse for the jury. Accordingly, Alvarado-Rodriguez has not
demonstrated that the court abused its discretion in determining
that the probative value of Alison’s testimony was not
substantially outweighed by the danger of unfair prejudice.

CONCLUSION

¶24 Alvarado-Rodriguez has not shown that the trial court
abused its discretion in denying his motion to exclude Alison’s
testimony. Accordingly, we affirm both the court’s evidentiary
ruling as well as Alvarado-Rodriguez’s conviction.

MORTENSEN, Judge (concurring in the result):

¶25 I concur fully in the result and in most of the analysis of the
lead opinion. I would take the opportunity this case presents,
however, to clarify that while a court can certainly consider
similarity between the charged conduct and the other acts
perpetrated on other victim(s) in conducting a rule 403 analysis,

20230939-CA 11 2026 UT App 25
State v. Alvarado-Rodriguez

similarity in specific acts is not required for admissibility. 5
Accordingly, the trial court, while ultimately correct in its
admission of the other-acts evidence, need not have determined
that any threshold of similarity in conduct was necessary to show
probative value. Specifically, the trial court stated that “the
similarities are enough” to give the evidence substantial probative
value. (Emphasis added.) Therefore, while I disagree with the trial
court’s rationale for admitting the other-acts evidence, I would
“affirm the result.” Benjamin v. Amica Mutual Ins. Co., 2006 UT 37,
¶ 1, 140 P.3d 1210. In fact, I have no reticence concluding that the
trial court’s “decision was on even firmer legal ground than it
realized.” State v. Morris, 2017 UT App 112, ¶ 18 n.7, 400 P.3d 1183.

¶26 Rule 404(c) states that “[i]n a criminal case in which a
defendant is accused of child molestation, the court may admit
evidence that the defendant committed any other acts of child
molestation to prove a propensity to commit the crime charged.”
Utah R. Evid. 404(c)(1). By rule, the definition of what qualifies as
“child molestation” is fairly broad, encompassing anything that

1. To be clear, I am not asserting that the approach adopted by the lead opinion now requires similarity. Nor do I believe any Utah appellate case has created such a rubric. I also do not think that a court must give any rule 404(c) evidence equal, greater, or less weight in weighing its probative value versus the potential prejudicial effect. Rather, I write merely to clarify and emphasize that similarity between the charged conduct and the other-acts evidence is not required in a rule 403 balancing of rule 404(c) evidence. In other words, I am concerned that our cases might be misperceived to require some form of similarity other than that another act of child molestation has allegedly occurred at the hand of an individual currently charged with a sex offense against a child. I don’t think the lead opinion is creating anything new, but I do believe the import of this and similar cases has the potential to be misunderstood, and it is for this reason that I write this concurrence.

20230939-CA 12 2026 UT App 25
State v. Alvarado-Rodriguez

“would, if committed in this state, be a sexual offense or an
attempt to commit a sexual offense.” Id. R. 404(c)(3). As noted in
the lead opinion, see supra ¶ 17, after evidence clears the rule 404(c)
threshold, it must then also clear a rule 403 threshold. See State v.
Ring, 2018 UT 19, ¶ 28, 424 P.3d 845; State v. Fredrick, 2019 UT App
152, ¶¶ 43–44, 450 P.3d 1154.

¶27 The trial court reasoned that “the similarities are enough”
to give the evidence “pretty substantial probative value.”
(Emphasis added.) This reasoning can be read to infer that absent
sufficient similarity, rule 404(c) evidence might not be probative
and withstand 403 balancing. If the trial court meant that the rule
403 stage itself contains a threshold requirement of similarity of
victim profile or sexual act for the evidence to be admissible—
which is what I think the court meant when it said the evidence
was similar “enough”—then I think the court was off target. A
threshold of “enough” similarity is neither supported by rule
404(c) nor required under rule 403. By virtue of having satisfied
rule 404(c) alone—i.e., by virtue of being evidence of another
alleged act of child molestation—the evidence is already similar
“enough” to be admissible. True, in cases involving rule 404(c),
our courts applying rule 403 have looked to the similarities or
dissimilarities between the incidents in terms of assessing their
relative probative value. See, e.g., State v. Cuttler, 2015 UT 95, ¶ 24,
367 P.3d 981; State v. Forbush, 2024 UT App 11, ¶ 44, 544 P.3d 1.
But even an incident that is mostly dissimilar would still be
similar “enough” to be admissible, insofar as it still qualifies as an
act of child molestation, which is all that rule 404(c) requires.
Stated simply, the trial court was mistaken to the extent it
suggested that rule 403 imposes some additional similarity
requirement. 6

1. To be clear, I am not suggesting that consideration of similarities is off limits. Rather, I am saying that the similarity is (continued…)

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State v. Alvarado-Rodriguez

¶28 In the rule 404(c) context, the focus is on the propensity to
engage in sexual acts with children, not the propensity to engage
in specific acts or to target a specific age or gender profile. Indeed,
the plain language of the rule looks to “any other acts” of child
molestation, not limiting itself in any way to acts cabined within
some framework of similarity to the charged crime. Utah R. Evid.
404(c)(1) (emphasis added). And rule 403 does not require any
granular analysis of the similarities or differences between the
charged conduct and the other-acts evidence. Even if differences
exist, the other-acts evidence still has significant probative value
in establishing that a person has a propensity to molest children
by virtue of the fact that it fulfills the threshold for admissibility
established by rule 404(c). 7 While “similarities” may suggest that

not a requirement in conducting a rule 403 balancing and,
specifically, that there is no baseline of similarity that must be met
in applying rule 403 in the rule 404(c) context. Rule 404(c) itself
does require a specific similarity—the charged crime and the
other act must constitute “child molestation” as defined by the
rule. Thus, in discussing similarities here, I mean similarities
beyond the fact that the charged conduct and the rule 404(c)
evidence both constitute child molestation.

1. I recognize that the advisory committee’s note to rule 404(c) discusses rule 403 balancing and expressly encourages courts to consider the factors in State v. Shickles, 760 P.2d 291, 295–96 (Utah 1988), abrogated by State v. Doporto, 935 P.2d 484 (Utah 1997). See Utah R. Evid. 404 advisory committee’s note. But courts should be circumspect in considering these factors. See State v. Fredrick, 2019 UT App 152, ¶ 53, 450 P.3d 1154 (Mortensen, J., concurring) (stating that the “continued viability” of the Shickles factors in the rule 404(c) context is “highly questionable” considering the “development of the law in the intervening years”). The Shickles court was concerned about the danger that rule 404(b) evidence would be too relevant because a jury might consider the evidence (continued…)

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State v. Alvarado-Rodriguez

a defendant has a “propensity” to sexually molest children, Ring,
2018 UT 19, ¶ 30, it does not follow that the danger of unfair
prejudice substantially outweighs probative value merely
because the type of charged conduct and the other-acts evidence
of child molestation may differ. Indeed, Utah jurisprudence
addressing rule 404(c) consistently supports the conclusion that
differences between the charged conduct and the other acts of
child molestation do not erode the probative value of the
evidence. Never has our jurisprudence required that the charged
acts reflect strict correspondence to the other acts in order to be
probative of a propensity to sexually abuse children. See State v.
Christian, 2025 UT App 112, ¶¶ 5–9, 38, 575 P.3d 293 (charged
conduct was spanking and rubbing bare buttocks of a child,
spooning with the child, touching the child’s penis until the child
ejaculated, mutual oral sex, and anal sex; other acts involved
multiple instances of spanking buttocks, groping, and mutual oral
sex), cert. denied, 578 P.3d 751 (Utah 2025); State v. Estes, 2025 UT
App 10, ¶¶ 2–7, 9, 13–14, 564 P.3d 239 (charged conduct was
aggravated sexual abuse for an act of simulated intercourse with
a child; other acts involved multiple instances of touching a
child’s breasts over clothing, touching the child under her shirt,
kissing the child, forcing the child to touch the abuser’s penis over
clothing, simulated intercourse with the child, touching the inner
crease of the child’s thigh, and touching the child’s buttocks), cert.
denied, 568 P.3d 261 (Utah 2025); Forbush, 2024 UT App 11, ¶¶ 2–
4, 7–8 (charged conduct involved forcing a male child to perform
oral sex and watch adult pornography and performing anal sex

to demonstrate propensity. Therefore, the Shickles court endorsed
the consideration of certain factors in a rule 403 balancing. 760
P.2d at 295–96. These factors ostensibly helped blunt the
evidence’s “tendency to lead the finder of fact to an improper
basis for decision”—propensity. Id. at 295. But because rule 404(c)
now exists for the express purpose of allowing the consideration
of propensity, gatekeeping to ameliorate the potential use of
evidence for propensity purposes makes little sense.

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State v. Alvarado-Rodriguez

on the child; other acts involved the abuser touching the
“privates” of one female child and “cajol[ing]” another female
child to put his testicles in her mouth); State v. Plazola, 2023 UT
App 161, ¶¶ 3–7, 20, 542 P.3d 559 (charged conduct involved
touching the genitals of one child and the accused placing the
hand of another child on his genitals; other acts involved touching
one of the children’s genitals and buttocks); State v. Garcia, 2022
UT App 77, ¶¶ 4, 6–7, 13–15, 526 P.3d 1238 (charged conduct
involved digital penetration of a child’s vagina, touching a child’s
breasts and buttocks, and the abuser touching his penis to a
child’s vagina and trying to insert it into her mouth; other acts
were touching the breasts of two children, touching the vagina of
a child, forcing a child to perform oral sex, and raping a child); 8
State v. Modes, 2020 UT App 136, ¶¶ 3, 7, 475 P.3d 153 (charged
conduct involved abuser touching a child’s vagina and forcing the
child to take off shirt, exposing his penis, and masturbating in her
presence; other acts involved making another child engage in
simulated intercourse and forcing two children to “kiss” and
“make out”); State v. Gollaher, 2020 UT App 131, ¶¶ 2, 7–8, 474 P.3d
1018 (charged conduct was touching the clothed genitalia of two
eleven-year-old girls; other act was a conviction for “improperly
touching” a twelve-year-old girl); Fredrick, 2019 UT App 152, ¶¶ 5,
10 (charged conduct involved touching genitalia of a child; other
acts consisted of a series of emails and online correspondence
expressing a sexual interest in children); Ring, 2018 UT 19, ¶¶ 3, 5,
7 (charged conduct involved touching a three-year-old girl’s

1. In State v. Garcia, the defendant was charged with three counts of aggravated child sexual abuse. 2022 UT App 77, ¶ 11, 526 P.3d 1238. Some of the abusive acts against the victim were also apparently admitted as uncharged conduct to demonstrate propensity, but it is not clear which actions constituted the bases for the three charges and which actions did not. See id. ¶ 32. This lack of clarity does not detract from my point that rule 404(c) does not require a granular similarity between the charged conduct and the other acts.

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State v. Alvarado-Rodriguez

vagina with penis; other acts involved raping a six-year-old boy
and sexually assaulting a six-year-old girl by “humping” her and
touching her genitals); State v. Lintzen, 2015 UT App 68, ¶¶ 2, 4, 6,
13, 347 P.3d 433 (charged conduct limited to massaging breasts
and genitals of a ten-year-old girl over and under clothing; other
acts included licking the same child’s vagina, forcing the child to
lick the abuser’s penis, anal rape, potential vaginal penetration
with the abuser’s penis, and showing pornographic material of
children, starting when the child was about five years old and
lasting several years); State v. Bragg, 2013 UT App 282, ¶¶ 3, 9–10,
36, 317 P.3d 452 (charged conduct involved touching a five-year-
old boy’s penis and anus, rubbing penises together, and simulated
intercourse; other act involved prior conviction of sexual abuse of
a six-year-old girl).

¶29 Of course, I recognize that some cases have highlighted
similarity in rule 404(c) evidence when applying a rule 403
balancing. See Cuttler, 2015 UT 95, ¶ 24 (highlighting the
similarities between the charged conduct and the other acts,
which all involved “oral sodomy, anal rape, and vaginal
penetration” of the abuser’s daughters when they were between
seven and nine years old over a prolonged period of time with the
abuser using a nickname for his penis); Forbush, 2024 UT App 11,
¶ 44 (noting that similarities between the charged conduct and the
other acts supported admission under rule 404(c), such as the ages
of the children, the location of the abuse, the familiarity of the
abuser to the children, the abuse being a “crime of opportunity”
rather than a product of grooming, and the abuser “touching the
child inappropriately and then urging the child to touch him
inappropriately”). And I recognize that these cases have not made
clear that similarity is not required. However, just because a few
cases—now including the instant case—have highlighted the
similarity between the charged conduct and the other acts of child
molestation to support the exercise of discretion in allowing
evidence of a propensity to sexually abuse children, it does not

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follow that those cases establish similarity as a requirement for the
application of rule 403 to rule 404(c) evidence.

¶30 Any inference that rule 403 balancing when rule 404(c)
evidence is in play rests on a minimization of variability between
the charged conduct and the other acts is merely an unfortunate
echo of previous rule 404 jurisprudence developed prior to the
implementation of rule 404(c). In other words, the notion that
similarity between the acts of sexual abuse is required, or that
“enough” similarity must be shown, is simply misplaced.
Ultimately, the only similarity required is that the charged
conduct and the other acts involve “a sexual offense or an attempt
to commit a sexual offense” against “a child under the age of 14.”
Utah R. Evid. 404(c)(1), (3). As I understand it, the propensity that
rule 404(c) addresses is the involvement of adults in sexual
activities with children in a broad sense. Underlying this inquiry
is a presumption that an individual who has sexually violated a
child simply has a predisposition to do so, whether because of
aberrant sexual desire, an inability to appreciate boundaries
between consenting adults and children, or some other impulse
control or empathic defect. That’s the rationale of rule 404(c). I
find no textual support to cabin the scope of rule 404(c) otherwise,
and I don’t believe rule 403 constitutes grounds to do so either.9
Rule 403 does not define what makes evidence probative; rule 403
merely invites a trial court to compare the probative value of
evidence against unfair prejudice. Cf. Utah Dep’t of Transp. v.
Target Corp., 2020 UT 10, ¶ 21, 459 P.3d 1017 (“Our recent cases
have emphasized the importance of sticking to the text of

1. I have little doubt that in the not-too-distant future defendants charged with molesting children, and who have previously molested other children, will seek refuge in the limitations Judge Tenney’s concurrence (not the lead opinion) advocates to exclude what they claim are insufficiently similar acts of molestation.

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State v. Alvarado-Rodriguez

governing rules and statutes. We have warned of the perils of
judicial glosses that skate past the governing terms of the law.”).

¶31 Given this perspective, one might question the value of
conducting a rule 403 balancing at all when considering rule
404(c) evidence. But the answer is simple. A rule 403 balancing
addresses the prosecutorial tendency to include details from the
other-acts evidence apart from those necessary to establish
proclivity. The more unnecessary details that are included in the
description of the other-acts evidence—perhaps by way of
highlighting similarities—the greater the danger that the other-
acts evidence will devolve into a litany of “technicolor details”
that eclipse showing “a propensity for child molestation.” See
Fredrick, 2019 UT App 152, ¶ 46; see also Cuttler, 2015 UT 95, ¶ 27
(implicitly warning against “presenting the jury with
inflammatory details beyond what is necessary or appropriate for
it to consider when drawing that propensity inference”). For this
reason alone, the prudent course is to follow that set out by rule
404(c) and include only those details necessary to establish that
the other-acts evidence involved the sexual molestation of a minor
under fourteen years old. Highlighting similarities will naturally
have the potential to run counter to this limitation. 10

¶32 Similarity between the charged conduct and the rule 404(c)
evidence can certainly “suggest” that a defendant has a
“propensity” to sexually molest children. Ring, 2018 UT 19, ¶ 30.
And while similarity between the charged conduct and the other
acts supports a finding of probative value, evidence of prior child
molestation is highly probative of the propensity to molest

1. To be clear, my view is that courts are well within their discretion to highlight similarities but that they are not required to do so. Moreover, placing emphasis on similarities calls for circumspection as it runs the risk of focusing juries on inflammatory details unrelated to the proper propensity inference.

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State v. Alvarado-Rodriguez

children even in the absence of similarity of the specific act or the
age or gender profile of the rule 404(c) victim. 11 Thus, in affirming
the denial of Alvarado-Rodriguez’s motion to exclude, I would
specifically convey that similarity between the charged conduct
and the other-acts evidence is in no way essential or required for
rule 404(c) evidence to satisfy the rule 403 balancing test. And I
certainly would not endorse the trial court’s approach that looked
at whether “enough” similarity existed.

TENNEY, Judge (concurring):

¶33 I join the lead opinion in full. I write separately to address
some of the points raised by Judge Mortensen in his concurrence.

¶34 First, Judge Mortensen expresses his concern that the
approach taken by the district court and that has now been
affirmed by the lead opinion “might be misperceived to require
some form of similarity other than that another act of child
molestation has allegedly occurred at the hand of an individual
currently charged with a sex offense against a child.” Supra ¶ 25
n.5 (emphasis in original). The word “require” has a lot of
importance in Judge Mortensen’s concurring opinion, appearing
repeatedly in various forms throughout. Judge Mortensen pushes
back, for example, on the notion that a court may think that
“similarity” exists “as a requirement for the application of rule 403
to rule 404(c) evidence.” Supra ¶ 29 (emphasis in original).

1. Judge Tenney’s assertion that my approach suggests courts should assume differing pieces of rule 404(c) evidence have uniform probative value generally misses the point of my concurrence, which—again—is that in conducting a rule 403 analysis, similarity in specific acts is not required for admissibility.

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¶35 I don’t share this concern. This is so because I think that
under the scheme at issue, some threshold similarity is always
going to be present before a district court gets to the rule 403
portion of the analysis, so the opinions at issue (i.e., those from
the district court and now this court) are simply recognizing
something that’s already analytically there.

¶36 Rule 404(c) states that “[i]n a criminal case in which a
defendant is accused of child molestation, the court may admit
evidence that the defendant committed any other acts of child
molestation to prove a propensity to commit the crime charged.”
Utah R. Evid. 404(c)(1). The rule then defines “child molestation”
as “an act committed in relation to a child under the age of 14
which would, if committed in this state, be a sexual offense or an
attempt to commit a sexual offense.” Id. R. 404(c)(3). In my mind,
once this definitional construct is satisfied, this necessarily means
that there is at least some minimal amount of similarity between
the various acts at issue. After all, each involves an alleged act of
“child molestation” that was committed by this defendant. As a
result, I’m not sure how the lead opinion could be “misperceived
to require” anything that doesn’t already exist, so I don’t see what
the danger here really is.

¶37 Second, once rule 404(c) has been satisfied, the question is
what to do next. Here, Judge Mortensen repeatedly expresses his
concern about the district court’s observation that there was
“enough” similarity between the various acts to render the other
acts admissible. Supra ¶¶ 25, 27, 30, 32. Judge Mortensen cautions
district courts against engaging in a comparative or “granular
analysis of the similarities or differences between the charged
conduct and the other-acts evidence.” Supra ¶ 28. He opines that
any “differences between the charged conduct and other acts of
child molestation” would “not erode the probative value of the
evidence,” and he discourages district courts from focusing on
anything beyond “the involvement of adults in sexual activities

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State v. Alvarado-Rodriguez

with children in a broad sense.” Supra ¶¶ 28, 30. I disagree with
this approach as a matter of both law and logic.

¶38 Starting with the law, it’s settled in Utah that “evidence of
prior acts of child molestation admitted under rule 404(c) is still
subject to rule 403’s balancing test.” State v. Garcia, 2022 UT App
77, ¶ 30, 526 P.3d 1238 (quotation simplified); see also State v. Ring,
2018 UT 19, ¶ 28, 424 P.3d 845 (same); State v. Fredrick, 2019 UT
App 152, ¶ 43, 450 P.3d 1154 (same). Under rule 403, a “court may
exclude relevant evidence if its probative value is substantially
outweighed by a danger of” several listed things, one of which is
“unfair prejudice.” Utah R. Evid. 403. As indicated, rule 404(c)
states that the other-acts evidence may be admissible “to prove a
propensity to commit the crime charged.” Id. R. 404(c)(1). Putting
these rules together, what this means is that when a district court
conducts a rule 403 balancing in a rule 404(c) case, the key
differences are that (1) propensity is a permissible source of
probative value and (2) propensity does not constitute a source of
unfair prejudice. See Fredrick, 2019 UT App 152, ¶¶ 45–46.

¶39 As I see things, rule 404(c)’s allowance of evidence to show
a “propensity to commit the crime charged,” Utah R. Evid.
404(c)(1), naturally contemplates that there will be some
examination of the degree of similarity between the various acts.
To the extent that the acts in question are similar—whether it be
in terms of the ages or genders of the victims, the type of acts
involved, the circumstances, the timing, or anything else—the
propensity-based probative value would naturally be heightened.
To the extent that they’re dissimilar, however, the probative value
would naturally be weakened by some commensurate amount.

¶40 Of note, several Utah appellate decisions have done this
exact kind of thing in cases that implicated rule 404(c), expressly
considering the similarities or dissimilarities between the various
incidents as part of the rule 403 inquiry. See, e.g., Ring, 2018 UT 19,
¶ 30; State v. Cuttler, 2015 UT 95, ¶ 24, 367 P.3d 981; State v. Forbush,

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State v. Alvarado-Rodriguez

2024 UT App 11, ¶ 45, 544 P.3d 1, cert. denied, 550 P.3d 995 (Utah
2024); Garcia, 2022 UT App 77, ¶¶ 36–39. Thus, the approach taken
by the district court below and the lead opinion in this appeal is
entirely consistent with the approach to this rule that has
previously been taken by both the Utah Supreme Court and this
court. And since those cases treat similarity (or lack thereof) as
being an appropriate part of the rule 403 balancing in a rule 404(c)
case, I don’t see why this couldn’t be a meaningful part of the
balancing depending on the circumstances of a particular case. 12

¶41 In my mind, this approach also makes logical sense. To
illustrate, consider the following scenario. Suppose that a
defendant is charged with touching the breasts of a 13-year-old
girl that he taught at school. Suppose that, before trial, the State
expresses its intent to introduce evidence of two additional
incidents: in the first, the defendant had allegedly touched the
breasts of another 13-year-old girl that he taught at school that
same year; in the second, the defendant had allegedly touched the
penis of a toddler nephew at a family function many years earlier.

1. Judge Mortensen suggests that the rule 403 portion of this analysis should be focused on extraneous things, which he refers to as the “‘technicolor details’” surrounding the actual acts in question, as opposed to the acts of molestation themselves. Supra ¶ 31 (quoting State v. Fredrick, 2019 UT App 152, ¶ 46, 450 P.3d 1154). I don’t agree that our cases have drawn this line. To the contrary, in the cases I cited above, our courts expressly considered the incidents as a whole in the rule 403 analysis of a case that also involved rule 404(c)—i.e., the courts considered both the specific body parts allegedly touched by the defendant and such details as timing, the defendant’s relationship to the victim, or other similar things. See State v. Ring, 2018 UT 19, ¶ 30, 424 P.3d 845; State v. Cuttler, 2015 UT 95, ¶ 24, 367 P.3d 981; State v. Forbush, 2024 UT App 11, ¶ 45, 544 P.3d 1, cert. denied, 550 P.3d 995 (Utah 2024); State v. Garcia, 2022 UT App 77, ¶¶ 36–39, 526 P.3d 1238.

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State v. Alvarado-Rodriguez

Both incidents would pass the initial rule 404(c) inquiry because
both involve acts of “child molestation.” But when the district
court then turns to the rule 403 balancing, I think it would be odd
to suggest that the two incidents have identical probative values.
True, the second incident may have some probative value
because, like the charged offense, it involves an act of child
molestation. But since the two incidents are being offered to prove
“a propensity to commit the crime charged,” Utah R. Evid. 404(c)(1)
(emphases added), I think the first incident would be at least
somewhat more probative of the defendant’s propensity to touch
the breasts of a 13-year-old girl than the second one, and this is so
because it involves the same kind of touching against the same
kind of victim in the same kind of circumstance. As I understand
it, Judge Mortensen’s contrary approach suggests that courts
should assume that these acts have uniform probative value, and
I just don’t agree with that on the state of our current law or as a
matter of logic.

¶42 Finally, Judge Mortensen expresses his concern that
defendants will now “seek refuge” in what he regards as the
“limitations” that I’ve endorsed here. Supra ¶ 30 n.9. I think what
he means by this is that because I’ve acknowledged in this
concurrence that a defendant may point to dissimilarities between
the various acts in support of a motion to suppress—which, I’ll
note, is something recognized by the lead opinion too—my
concurring opinion will give defendants new support for an
argument that might lead to an unduly restrictive view of rule
403. But again, nothing in this approach is novel. It has already
been used in past cases, which suggests that defendants were
already well aware that they could make such arguments.
Regardless, I’m not suggesting (and nor is the lead opinion) that
the existence of dissimilarities will automatically lead to the
exclusion of the evidence. Rather, as I understand the state of
things, what happens is that once evidence clears the rule 404(c)
hurdle, it’s then subject to a rule 403 balancing. And as I’ve
explained, even in the most dissimilar of cases, there will still be

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at least some probative value, given that all of the acts in question
involve acts of “child molestation.” From there, it becomes a
question of balancing, and we’ve recognized that this balancing
remains within the “broad discretion” of the district court. State v.
Christian, 2025 UT App 112, ¶ 28, 575 P.3d 293 (quotation
simplified), cert. denied, 578 P.3d 751 (Utah 2025). I don’t see
anything amiss about trusting a district court to consider, as part
of that balancing, any similarities or dissimilarities between the
incidents as part of its assessment under rule 403. The sky hasn’t
fallen before, and I don’t see anything in the lead opinion or mine
that will cause it to fall now.

¶43 With these additional observations, I join the lead opinion.

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