T1 Troy Dean Labrum appeals from a conviction for assault, enhanced to a class A misdemeanor for causing substantial bodily injury. See Utah Code Ann. § 76-5-102(1), (8)(a) (LexisNexis 2012). Labrum challenges the admission of evidence at trial relating to prior alleged assaults. He also argues that the evidence of substantial bodily injury was insufficient to support his conviction. We affirm.
BACKGROUND
12 Labrum's conviction arose out of an altercation during the early hours of March 6, 2011, between Labrum and his then-wife (Wife).
13 At this point, Wife's and Labrum's versions of events diverge. According to Wife, Labrum returned to the bedroom and asked her to move over so that he could get in the bed. When Wife told him to sleep in another room, Labrum began to strike Wife in the face with a full Gatorade bottle, hitting her a total of six times across her face. By the third blow, Wife was able to pull the covers over her head in an attempt to block Labrum's attacks. After Labrum stopped hitting Wife, she put her hands down and positioned the set of keys so that an individual key was protruding between each of her fingers. Labrum then "flopped down onto [her]," landing on the keys. Labrum got up, spun around, and punched Wife on the right side of her forehead. Before Labrum walked out of the room, he stated, " 'I told you never to touch me'" and, " 'You deserve what you get." Wife fled to her mother's house, and Wife's mother immediately drove her to the hospital.
14 Labrum's account differed markedly from Wife's. According to Labrum, he went upstairs to go to bed but was unable to turn on the bedroom lights because they were controlled by a remote that was not by the entrance to the room. As Labrum went to sit on the bed, he "started feeling punches in [his] back" and felt something pierce him in his back. Labrum then swung his arm back
{5 The State charged Labrum with class A misdemeanor assault for causing substantial bodily injury. The magistrate bound him over for trial after a preliminary hearing on July 14, 2011. Labrum filed a motion to quash the bindover on the ground that the State had failed to produce sufficient evidence that Wife suffered "substantial bodily injury." The trial court denied the motion.
T 6 On February 24, 2012, the State filed a notice of intent to introduce evidence pursuant to rule 404(b) of the Utah Rules of Evidence.
T7 The proposed other acts evidence included an incident in August 2010, where an argument between the couple escalated to the point that Labrum pushed Wife against a couch,. When Wife got up and tried to walk away, Labrum pushed her down the stairs and walked on top of her.
T8 Labrum objected to the introduction of the other acts evidence and filed a memorandum in support of his objection. Labrum argued that the incidents were not offered for a proper purpose, that they were irrelevant and unfairly prejudicial, and that the admission of this evidence would confuse the issues, mislead the jury, and waste the trial court's time.
T9 After a hearing on March 5, 2012, the trial court granted the State's motion, allowing the introduction of the other acts evidence at trial. In its written order, the trial court indicated that the other acts evidence was "admissible for the proper non-character purposes of (1) showing [Wife's] state of mind/providing context to her decision to bring keys with her to bed before the alleged
¶ 10 During a one-day jury trial, Wife recounted her version of the March 6, 2011 attack. Wife also indicated that when she went to the hospital, she was told that she had suffered a contusion on her forehead as well as severe bruising and swelling of her face and eyes. She explained that the hospital staff called the police. The responding officer took Wife's statement and numerous photographs of her injuries. Wife testified that the bruising and swelling on her face lasted for over two weeks, that she could not keep her eyes open for very long during that period of time, and that she had to apply ice to her injuries periodically in order to see out of both eyes. Wife also indicated that she was unable to perform her job as a second-grade teacher during that time due to the magnitude of the swelling and bruising and because she believed her appearance would frighten her students Through Wife, the State introduced twelve photographs showing the progression of Wife's injuries: two photographs taken at the hospital on March 6, 2011; four photographs taken on March 7, 2011, about twenty-four hours after the incident; and six photographs taken on March 8, 2011, about forty-eight hours after the incident.
{[ 11 Next, Wife testified that she took the keys to bed with her "(flor protection [from Labrum's] rage." The prosecutor asked Wife why she felt she needed protection, and Wife said it was because of "past events that had occurred in the marriage." At that point, the trial court interjected and gave a verbal instruction to the jurors that the other acts evidence that they were about to hear was being admitted to help the jury "in determining whether Mr. Labrum acted intentionally on March 6th and on the issue of whether there [was] self defense," and not to show that Labrum was "a person of bad character." The trial court cautioned the jury that Labrum was not on trial for those past events but only for the March 6, 2011 incident. Thereafter, Wife gave her account of the three prior incidents of violence. The detective who was assigned to investigate the March 6, 2011 domestic violence incident between Labrum and Wife testified that he reviewed dispatch records and confirmed that Wife called the police in August 2010 and that the call was initially categorized as a domestic violence incident but had then been recategorized as a "public assist." The State introduced a photograph of Wife's face that Wife had taken herself after the February 5, 2011 incident that showed a cut across her eyelid and cheek. The State also introduced four photographs of the damage that Labrum caused in the house after the February 23, 2011 incident.
1 12 At the close of the State's case, Lab-rum moved for a directed verdict on the ground that the State had failed to present sufficient evidence of "substantial bodily injury." The trial court denied that motion, indicating that the jury "could find this was protracted physical pain" and that having "a black eye for two weeks" could amount to "temporary disfigurement."
¶13 Thereafter, Labrum testified on his own behalf. In addition to testifying about his recollection of the March 6, 2011 altercation, Labrum offered his own version of events relating to the prior incidents. Lab-rum testified that he recalled having an argument with Wife in August 2010 but that there was no physical contact between them. He
{14 After the close of evidence, the trial court instructed the jury on the applicable law, which included an instruction on self-defense. During closing argument, the prosecutor argued that Labrum assaulted Wife and caused substantial bodily injury. Other than one brief reference, the prosecutor did not address the other acts evidence in closing arguments.
€ 15 The jury found Labrum guilty of assault, enhanced to a class A misdemeanor because Wife had suffered substantial bodily injury. Thereafter, Labrum was sentenced to ninety days in jail and was placed on probation for a period of twenty-four months. Labrum now appeals.
ISSUES AND STANDARDS OF REVIEW
116 Labrum contends that the trial court abused its discretion when it admitted evidence of other uncharged acts under rule 404(b) of the Utah Rules of Evidence. "A trial court's admission of other acts evidence is reviewed for abuse of discretion, but the evidence 'must be serupulously examined by trial judges in the proper exercise of that discretion.'" State v. Verde,
117 Labrum also contends that the State failed to set forth evidence supporting the jury's determination that Wife suffered "substantial bodily injury." In reviewing a claim of insufficient evidence, we "view[ ] the evidence and all inferences drawn therefrom in a light most favorable to the jury's verdict." State v. Holgate,
ANALYSIS
I. Other Acts Evidence
118 Labrum first argues that the trial court abused its discretion by admitting evidence of other uncharged acts. "Rule 404(b) of the Utah Rules of Evidence instructs that '[elvidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith"'" State v. Marchet,
T19 Traditionally, "[a] decision as to the admissibility of bad acts evidence involve[d] a three-step process." Id. 129; see also State v. Nelson-Waggoner,
A. - Noncharacter Purpose
20 We first determine whether the trial court exceeded its discretion in determining that the evidence was offered for a proper, noncharacter purpose. The State asserts that the other acts evidence was offered for the proper, noncharacter purposes of establishing Wife's state of mind, providing context for her actions, and establishing that Labrum acted intentionally and not in self-defense.
$21 "Fidelity to [rule 404(b)] requires a threshold determination of whether proffered evidence of prior misconduct is aimed at proper or improper purposes. If such evidence is really aimed at establishing a defendant's propensity to commit erime, it should be excluded despite a proffered (but unpersuasive) legitimate purpose." Verdg,
122 Rule 404(b) specifically provides that other acts evidence is admissible to show proof of "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Utah R. Evid. 404(b)(@). Thus, evidence may be admissible under rule 404(b) to rebut a defense that the defendant lacked the requisite intent to commit a erime. See State v. Fedo-rowiez,
123 Here, the prosecutor offered the other acts evidence for the proper purpose of rebutting Labrum's testimony that he instinctively hit Wife with the Gatorade bottle in self-defense.
B. Rule 408 Analysis
1 24 Next, we must determine whether the trial court exceeded its discretion in concluding that the three prior incidents of domestic violence were admissible under rule 403 of the Utah Rules of Evidence. Rule 408 states, "The court may exclude relevant evidence 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."
125 Evidence that is "genuinely being offered for a proper, non-character purpose" may also carry "a risk of an undue inference that the defendant committed each act because of the defendant's immoral character." State v. Verde,
"[1] the strength of the evidence as to the commission of the other crime, [2] the similarities between the crimes, [8] the interval of time that has elapsed between the crimes, [4] the need for the evidence, [5] the efficacy of alternative proof, and [6] the degree to which the evidence probably will rouse the jury to overmastering hostility."
Id. at 295-96 (quoting Edward W. Cleary et al., McCormick on Evidence § 190, at 565 (8d ed.1984)).
1. Relevance of the Shickles Factors in Light of State v. Verde
126 The Utah Supreme Court's recent decision in Verde has left the continuing relevance of the Shickles factors somewhat uncertain
{27 In Verde, the supreme court did not apply the doctrine of chances when assessing the admissibility of the other acts evidence to prove specific intent or plan under rule 403. See id. T4 21-32, 40-41. - Nor did it consider each of the Shickles factors in its analysis of specific intent or plan. Instead, the court referred to only one of those factors-the prosecution's need for the evidence-in rejecting the state's claim that the prior sexual assault evidence was admissible to establish the defendant's specific intent, see id. 126 & n. 6, and another Shickles factor-the similarity of the evidence-in rejecting the state's claim that the prior sexual assault evidence was admissible to establish the defendant's plan to engage in eriminal activity, see id. M\ 40-41.
1 28 Where the context involves a doctrine of chances analysis, we read Verde as having displaced the Shickles factors-for purposes of assessing the "probative value" aspect of the rule 408 analysis-with a focus on mate
T 29 In Verde, the supreme court "acknowledge[d] the theoretical possibility that evidence of prior misconduct could be admitted under rule 404(b) to establish commission of a criminal actus reus by rebutting a charge of fabrication." Id. 146; see also id. TV 44-62. The supreme court also indicated that the doctrine of chances could be employed to assess other acts evidence offered to rebut a claim of accident. See id. 149. And the authorities cited favorably in Verde suggest that the doctrine also applies to assessing the admissibility of other acts evidence offered to rebut a defense of mistake. See id. 148 & n. 17 (citing United States v. Russell,
130 Whether the doctrine of chances applies depends on why the other acts are relevant. Other acts evidence is relevant if it has any tendency to make a consequential fact more probable or less probable. See Utah R. Evid. 401. If that tendency lies in the improbable repetition of a similar event, the doctrine of chances applies. See State v. Verde,
$31 In the present case, Labrum argued that he instinctively hit Wife in self-defense. As discussed above, the prosecutor offered the other acts evidence for the proper purpose of establishing Labrum's intent by rebutting his self-defense claim. See su-pro 1420-28. Specifically, the prosecutor elicited the other acts evidence to explain Wife's state of mind. Therefore, as noted above, the other acts evidence was relevant because of its tendency to make it more likely that Wife brought her keys to bed to protect herself in the event Labrum became violent, and not to attack Labrum.
132 Whatever the merits of a doe-trine of chances analysis under the ciream-stances of this case, we do not address it. When other acts evidence is relevant to a legitimate, proffered purpose and otherwise admissible, we need not analyze the other acts evidence under alternative theories of relevance. Cf. Verde,
2. Application of the Relevant Shickles Factors
1 33 Labrum argues that the evidence here should not have been admitted because the prior incidents of domestic violence were unreported and uncorroborated. While the evidence could be stronger, it is not as weak as Labrum suggests. The first incident was corroborated by a detective's testimony at trial that dispatch records revealed a call by Wife to the police in August 2010 that was initially logged as a domestic violence incident but ultimately changed to a "public assist." The second incident was corroborated by a photograph of the seratch on Wife's face that she took the day of that incident. The third incident was corroborated by four photographs, taken the day of that incident, showing the holes in the bedroom door and bathroom vanity that Labrum had punched or kicked. The other acts evidence was sufficiently strong to support the inference for which it was offered.
34 Labrum claimed that he struck Wife in a justified effort to defend himself. If
135 Furthermore, as Labrum concedes, these incidents happened close in time to the charged conduct. The first incident occurred only eight months before the March 6, 2011 attack, the second incident occurred less than one month before the March 6, 2011 attack, and the third incident occurred a week and a half before the March 6, 2011 attack. The three incidents established the pattern of Labrum's violent episodes and suggested that they were becoming more frequent. As a result, they explain Wife's fear of Labrum on the day of the charged conduct and her state of mind when she armed herself with the keys. Cf. State v. Marchet,
136 In considering the improper inferences that the jury might draw from the other acts evidence, we acknowledge the sensitive nature of evidence regarding domestic violence. See United States v. Covington,
Such evidence of multiple acts of similar or identical abuse is unlikely to prejudice a jury; jurors will either believe or disbelieve the testimony based on the witness's credibility, not whether the witness asserts an act occurred three times or six. This evidence simply does not have the prejudicial effect that may result from introduction of prior criminal acts committed against a number of unrelated victims....
State v. Reed,
137 Furthermore, our review of the record establishes that the State did not use the other acts evidence for any impermissible purpose or suggest to the jury that Labrum acted in conformity with his prior conduct. The prosecutor introduced the evidence in her opening statement by saying that Wife took her keys to bed because three prior arguments had ended in violence and that Wife had those prior incidents "in mind" when she went to sleep holding her keys. Aside from one brief statement pointing out what the prosecutor perceived to be evidence of credibility issues in Labrum's testimony, the prosecutor did not refer to the other acts evidence during closing argument. Likewise, before the State elicited Wife's testimony regarding the prior incidents, the trial court gave a limiting instruction to the jurors, informing them that they were to use the evidence only in determining whether, on March 6, 2011, Labrum acted intentionally and not in self-defense. The trial court expressly admonished the jurors not to consider the other acts as evidence that Labrum was "a person of bad character" and reminded them that Labrum was on trial only for the incident that occurred on March 6, 2011. See generally Verde,
€38 The trial court thoroughly examined the other acts evidence in the context of the purpose for which it was offered and carefully weighed its tendency toward proper and improper inferences. In addition, the court took reasonable measures to minimize the risk that the jury would use the evidence for an improper character purpose, and the State did not attempt to overcome those precautions by inappropriate argument. Accordingly, we conclude that the trial court did not exceed its discretion in admitting the other acts evidence under rule 404(b).
II. Sufficiency of the Evidence
{39 Labrum contends that the evidence presented at trial was insufficient to support the jury's determination that Wife suffered "substantial bodily injury." See Utah Code Ann. § 76-5-102(8)(a) (LexisNexis 2012) (providing for the enhancement of assault to a class A misdemeanor if "the person causes substantial bodily injury to another"). "Substantial bodily injury" is defined as "bodily injury, not amounting to serious bodily injury, that creates or causes protracted physical pain, temporary disfigurement, or temporary loss or impairment of the function of any bodily member or organ."
40 In support of his argument that Wife did not suffer "substantial bodily injury," Labrum cites to Minnesota case law holding that a black eye does not equate to "substantial bodily harm." See State v. Whaley,
141 Wife testified that the bruising and swelling to her face lasted over two weeks, that she could not keep her eyes open for a long period of time, and that she had to periodically apply ice to her injuries in order to see out of both eyes. Wife also indicated that her injuries were serious enough that they prevented her from performing her job as a second-grade teacher, both because of the magnitude of the swelling and bruising and her concern that her disfigurement might frighten her students. Furthermore, the State introduced twelve photographs showing the progression of Wife's injuries from immediately after the attack, one day after the attack, and two days after the attack, which documented the extensive injury to both eyes and much of her face.
142 There was sufficient evidence from which the jury could conclude that Labrum committed an assault that resulted in substantial bodily injury. Although Wife's injuries conceivably could have amounted to bodily injury rather than substantial bodily injury, reasonable minds could also conclude that the bruising and swelling around Wife's eyes and face, which lasted over two weeks and prevented her from opening her eyes for long periods of time, amounted to "temporary disfigurement," or that Wife suffered "protracted physical pain" as a result of her injuries See Utah Code Ann. § 76-i-601(12); cf. State v. White,
CONCLUSION
143 The trial court did not exceed its discretion in admitting the evidence of other uncharged acts. Furthermore, the evidence presented at trial was sufficient to support the jury's determination that Labrum caused substantial bodily injury. Consequently, we affirm Labrum's conviction.
Notes
. "When reviewing a jury verdict, we examine the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict, and we recite the facts accordingly." State v. Kruger,
. Rule 404(b) provides,
Evidence 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.... This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
. In the State's motion in limine to admit the other acts evidence, the State proffered a statement from Wife that Labrum "pushed [her] against the stairs" and then walked on top of her to get up the stairs. At trial, however, Wife testified that Labrum pushed her "down the stairs" and then walked on top of her.
. - Rule 401 provides, "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Rule 402 provides that "[rJelevant evidence is admissible" except as otherwise provided by rule, statute, or constitution, and that "irrelevant evidence is not admissible."
. Rule 403 provides, "The court may exclude relevant evidence 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."
. The prosecutor did, however, discuss the other acts evidence in her opening statement. The prosecutor stated that Wife took the keys to bed with her "because three times prior to this night and this argument, verbal arguments with the defendant ended with physical violence." After briefly describing the three incidents, the prosecutor said, "So [Wife] goes to sleep ... with these in mind and with those keys in her hand."
. The trial court instructed the jury that the evidence was being offered only to establish Lab-rum's intent and whether he acted in self-defense.
. The supreme court issued State v. Verde,
. The doctrine of chances is a "theory of logical relevance," which a proponent may use to argue that, using "probability reasoning," a factfinder may infer that a disputed fact is more likely or less likely to be true due to the recurrence of some improbable event. See Verde,
. A contrary inference could be drawn that repeated acts of domestic violence make it more likely that Wife would have been driven to retaliate against Labrum. But it was for the jury to determine which competing inference to draw.
. The Shickles factors relevant to the probative value of other acts evidence include evidentiary strength, similarity, temporal proximity, and necessity. See State v. Shickles,
. According to Wife's version of events, she was leaving the house during the second incident. While this fact may indicate that the second incident fits the same pattern as the other incidents, Wife provided insufficient detail of that episode to make that determination.
. "Bodily injury" is defined as "physical pain, illness, or any impairment of physical condition." Utah Code Ann. § 76-1-601(3) (Lexis-Nexis 2012). - "Serious bodily injury" is defined as "bodily injury that creates or causes serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or creates a substantial risk of death." Id. § 76-1-601(11).