2022 UT App 69

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

ADAM TAE KYUN LIM,

Appellant.

Opinion

No. 20190027-CA

Filed June 3, 2022

Third District Court, Salt Lake Department

The Honorable Vernice S. Trease

The Honorable Ann Boyden

No. 161909129

Andrea J. Garland, Attorney for Appellant

Sean D. Reyes and Jeffrey D. Mann, 

Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGE RYAN M. HARRIS concurred. JUSTICE DIANA HAGEN

concurred in the result.

1

MORTENSEN, Judge:

¶1 Adam Tae Kyun Lim, a hospital nurse, was charged with 

three counts of sexual abuse involving three different female 

patients. The incidents took place over nearly seven years, with 

over five years separating the first two incidents and almost two 

years separating the second and third incidents. Despite the long 

1. Justice Diana Hagen began her work on this case as a judge of 

the Utah Court of Appeals. She became a member of the Utah 

Supreme Court thereafter and completed her work on the case 

sitting by special assignment as authorized by law. See generally 

Utah R. Jud. Admin. 3-108(3).
State v. Lim

20190027-CA 2 2022 UT App 69

period of time between the instances of alleged abuse and some 

dissimilarities among the incidents, the State charged Lim in a 

single information. When Lim moved to sever the counts for 

separate trials, the district court denied the motion, and Lim was

tried and found guilty on the three counts in a single trial. Lim 

appeals, alleging the court exceeded its discretion in failing to 

grant his motion to sever. We agree with Lim. We reverse and 

remand for new trials in which the counts are severed.

BACKGROUND2

First Incident

¶2 In January 2009, Allie3 was recovering at St. Mark’s 

Hospital after undergoing surgery for complications related to 

Crohn’s disease. Lim, who had been assigned as Allie’s nurse, 

came into her room during the night while she was resting. He 

left the lights off, “didn’t say anything,” and—while acting “like 

he was checking things”—“inserted his fingers into [her] vagina” 

and then “just left the room.”

¶3 Allie “was in shock initially,” but after Lim left, she woke 

her mother, who was staying in the room with her, and told her 

what happened. Her mother recalled that Allie “was distraught 

and crying and very upset” as she told her “what was going on 

with her.” Although Allie had been taking pain medications that 

made her “tired” and “groggy,” she “definitely” knew “that 

[Lim’s] hands went where they were not supposed to be.”

¶4 Allie filed a complaint with the hospital a few weeks later

“so that if it happened again,” the hospital “would know that this 

2. “On appeal, we review the record facts in a light most favorable 

to the jury’s verdict and recite the facts accordingly.” State v.

Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (cleaned up).

3. We employ pseudonyms in this opinion.
State v. Lim

20190027-CA 3 2022 UT App 69

person did this and this was happening.” During the ensuing 

investigation—which took place several years later after a third 

incident that will be discussed below—an investigator with the 

Utah Division of Occupational and Professional Licensing 

(DOPL) interviewed Lim about the incident.

4 Lim confirmed that

he had been in Allie’s room to evaluate her and give her 

medications, that her mother had been in the room, and that the 

overhead lights were off when he had evaluated Allie. He was 

also aware that there had been a complaint that he had inserted 

his fingers into her vagina, which he denied having done.

Second Incident

¶5 In February 2014, Bella was admitted to Intermountain 

Medical Center (IMC) for an infection in her leg, which ultimately 

required amputation above her knee. She testified that Lim had 

been her nurse and that he was “very flirtatious” and told her that

she was “cute,” which made her “feel really uncomfortable.”

¶6 During the evening that she was recovering from her 

surgery, Lim said he needed to check her catheter. Bella told him 

that she did not “think it [needed] to be checked.” But Lim insisted 

and proceeded to insert “his fingers inside of [Bella’s] vagina and 

just started . . . moving all around, . . . jerking all around.” Bella, 

who had been catheterized during prior hospitalizations, testified 

that she had never had a caregiver touch her vagina or put a finger 

in her vagina when checking a catheter. And although Bella was 

on pain medication at the time of the incident, she stated that she 

4. The DOPL investigation was triggered by a February 2016 

complaint involving the abuse against another patient, Cora. Lim 

was then connected to an earlier complaint DOPL had received in 

May 2014 involving the abuse against yet another patient—Bella. 

Lim’s employment records from St. Mark’s were then 

subpoenaed, and the DOPL investigator discovered the complaint 

Allie had made against Lim.
State v. Lim

20190027-CA 4 2022 UT App 69

did not have “any doubt . . . at all” that Lim had inserted his 

fingers into her vagina.

¶7 The following morning, Bella complained about the 

touching, and the police came to her room to investigate. Lim 

explained to the police officer that the “patient care tech” had told 

him Bella’s “catheter was not working and that he had to pull on 

the catheter to see if he could make it work.” Lim suggested that 

“when he pulled on the rubber housing that it could have given 

[Bella] the sensation that somebody was touching her vagina.”

Lim also explained to the DOPL investigator that because Bella 

was having trouble breathing, she was sitting up at a ninetydegree angle to make it easier for her to breathe, which would 

have made it difficult for him to touch her groin area. He also 

suggested that Bella was “disoriented” due to the combination of 

surgery, pain medication, and low oxygen. But the DOPL 

investigator testified that there was nothing in Bella’s chart notes 

to indicate a problem with the catheter, breathing, or Bella being 

disoriented. Indeed, Lim eventually admitted to the investigator 

that Bella was sitting at a forty-five-degree angle and that “[t]here 

was no way that the leg could be elevated,” as expected after 

surgery, had she been sitting straight up.

Third Incident

¶8 In December 2015, Cora was hospitalized at IMC for issues 

related to colitis and Crohn’s disease. During New Year’s Eve 

night, Lim, who was assigned as Cora’s nurse, entered her room, 

shut the door, pulled the curtains, and “insisted” that “he had to 

check” her EKG leads because one was “loose.” Cora, who said 

she had “many EKGs” in the past and knew that “if something’s 

wrong, then the alarm will go off,” described Lim’s behavior as 

“not professional at all.” While putatively checking the EKG lead, 

Cora said Lim began “fondling” her breast “back and forth . . . 

[j]ust across the nipple.” Lim then immediately left the room.

¶9 Shortly after midnight, Lim entered Cora’s room again, 

shut the door and curtain, and pulled two drinks from behind his 
State v. Lim

20190027-CA 5 2022 UT App 69

back to “have a toast.” Initially, Cora thought it was sparkling 

grape cider but then suspected it was champagne. After Lim left, 

she poured the remainder down the drain. Later, Lim returned to 

Cora’s room to administer pain medication, after which he got 

down to the level of the bed railing and “just stared” at Cora for a 

“minute-and-a-half to two minutes . . . not saying anything, just 

staring,” making Cora “very uncomfortable.”

¶10 Later, when staff from IMC called to see how her stay was, 

Cora reported Lim’s behavior. In the ensuing investigation, Lim 

admitted that he went to Cora’s room to fix the EKG lead. He first 

denied touching Cora’s breast, but he later acknowledged that he 

“may have done that by mistake.” Lim confirmed that he got 

down on his knees to watch her because he needed to get eye level 

with her. He also admitted to giving her a drink of sparkling apple 

cider that was available at the nurse’s station. Lim opined that 

Cora’s pain medications might have “alter[ed] her perception,” 

leading her to lodge a complaint, but he admitted that she did not 

appear to have “an altered perception” or to be “disoriented.”

Charges and Proceedings 

¶11 Lim was charged in a single information with two counts 

of object rape and one count of forcible sexual abuse. Before trial, 

Lim moved the district court to sever the charges and grant

separate trials on each count, arguing that there was no common 

scheme or plan to support joinder and that joinder would 

prejudice him.5

¶12 The State opposed the motion, asserting that Lim was a 

“registered nurse, who repeatedly had access to vulnerable 

female patients” and “took advantage of them sexually using 

similar methods and then repeatedly refuted the complaints filed 

5. Lim’s motion to sever addressed four counts because the State 

had filed an amended information containing four counts. The 

fourth count was dropped in a second amended information

before trial.
State v. Lim

20190027-CA 6 2022 UT App 69

by the women, claiming that the women were confused or 

mistaken.” “[T]he similarity of alleged victims and the 

commonalities in [Lim’s] actions,” the State argued, made joinder 

proper. Specifically, the State said there was “a strong visual 

connection” among the victims because (1) they were hospitalized 

in Salt Lake County, Utah; (2) they were treated by Lim in his 

capacity as a registered nurse; (3) they complained that Lim 

“committed inappropriate sexual acts after befriending them in a 

manner unlike other healthcare professionals”; (4) they were 

abused late in the evening; and (5) they had been given narcotic 

pain medications.

¶13 The State argued that the joinder would not prejudice Lim

because evidence involving all the counts would “likely be 

admissible whether there was one or multiple trials.” The State 

did not argue that there would be “no prejudice” to Lim in trying 

all the “counts in a single trial,” conceding that “it would be 

difficult to imagine a scenario in which any defendant might not 

be prejudiced to at least some degree when a jury is allowed to 

hear evidence from multiple counts or from prior, uncharged 

acts.” But the State asserted that joinder was not unfairly 

prejudicial here because even if the charges were severed, “the 

jury would likely hear a portion, if not all, of the evidence 

regarding the other charged counts, [since] the evidence would be

admissible as 404(b) evidence in each of the separate trials,” 

presumably to counter Lim’s assertion that he was “performing 

appropriate nursing care, which necessarily involves touching the 

body,” and that “these female patients were confused or mistaken 

regarding their complaints.” 

¶14 The district court denied Lim’s motion to sever. Even 

though the charges were by nature prejudicial when tried 

together, the court determined that there was “no prejudice that 

results by joining them together.” “[J]oinder would not result in 

prejudice to [Lim] because evidence for all [the] counts would be 

allowed whether there were separate trials (where the evidence 

would be repeated in each trial) or one trial (where the evidence 

would be presented only once).” The court elaborated that 
State v. Lim

20190027-CA 7 2022 UT App 69

“joinder was proper in this case given that evidence in each of the 

. . . counts was strikingly similar” and that “evidence from all [the]

counts was necessary to avoid jury confusion and for the jury to 

accurately assess any claims made by [Lim] regarding accidental 

touching or victim mistake.” Lastly, the court determined that, 

“based on a careful weighing of the evidence, joinder of the . . . 

counts was proper under a 404(b) analysis and would lead to a 

fair trial for both parties.”

¶15 After a three-day trial, a jury convicted Lim on two counts 

of object rape and one count of forcible sexual abuse. Lim appeals. 

ISSUE AND STANDARD OF REVIEW

¶16 Lim contends that the district court exceeded its discretion

when it denied his motion to sever the three counts. “The grant or 

denial of severance is a matter within the discretion of the trial 

judge, so we reverse a denial only if the trial judge’s refusal to 

sever charges is a clear abuse of discretion in that it sacrifices the 

defendant’s right to a fundamentally fair trial.” State v. Balfour, 

2008 UT App 410, ¶ 10, 198 P.3d 471 (cleaned up). “Under the 

abuse of discretion standard, we will not reverse unless the 

decision exceeds the limits of reasonability.” State v. Hildreth, 2010 

UT App 209, ¶ 30, 238 P.3d 444 (cleaned up).6

ANALYSIS

¶17 “Two or more felonies . . . may be charged in the same 

indictment or information if each offense is a separate count and 

if the offenses charged are . . . alleged to have been part of a 

6. Lim has also raised issues of ineffective assistance of counsel

and cumulative error, in addition to seeking remand pursuant to 

rule 23B of the Utah Rules of Appellate Procedure. Because we 

reverse on the severance issue, it is unnecessary to address these 

remaining issues. 
State v. Lim

20190027-CA 8 2022 UT App 69

common scheme or plan.” Utah Code Ann. § 77-8a-1(1)(b)

(LexisNexis 2017). But even where joinder is proper under the 

common scheme or plan rubric, “[i]f the court finds a defendant 

. . . is prejudiced by a joinder of offenses . . . , the court shall order 

an election of separate trials of separate counts.” See id. § 77-8a1(4)(a).

¶18 The joinder of the three counts against Lim fails on both 

prongs (i.e., common scheme or plan and prejudice). We consider 

each in turn.

I. Common Scheme or Plan

¶19 Charges are part of a common scheme or plan “when the 

crimes involve a similar fact pattern and proximity in time.” State

v. Balfour, 2008 UT App 410, ¶ 20, 198 P.3d 471. After laying out 

these two requirements, we explain how Lim’s conduct fell short 

of meeting them. 

A. Similar Fact Pattern

¶20 A “parallel fact pattern in [multiple] incidents plainly 

demonstrates the existence of a calculated plan.” State v. Lee, 831 

P.2d 114, 118 (Utah Ct. App. 1992). But “to be classified as a 

common plan or scheme it is not necessary for the crimes to have 

been perpetrated in an absolutely identical manner, so long as the 

court perceives a visual connection between the two crimes.” Id.

at 117 (cleaned up); accord Balfour, 2008 UT App 410, ¶ 20.

¶21 In Balfour, a defendant was charged with four counts of 

forcible sexual abuse in a single information, three of which were 

for touching the breasts of three women who had come to his 

office, all on the same day. 2008 UT App 410, ¶¶ 2–4, 7. The other 

count was related to the defendant going to another woman’s 

house—about sixteen months earlier—removing his pants and 

rubbing his penis against the woman’s vagina over her clothing 

in an act of simulated intercourse. Id. ¶ 6. The trial court denied 

the defendant’s motion to sever the four counts. Id. ¶ 10.
State v. Lim

20190027-CA 9 2022 UT App 69

¶22 On interlocutory appeal, this court determined that the 

office counts were properly joined because “the three alleged 

crimes occurred within the same calendar day and [because] the 

circumstances surrounding each incident [were] strikingly 

similar.” Id. ¶¶ 1, 21, 25. But the remaining count involving 

simulated intercourse was not properly joined. Id. ¶ 28. This court 

noted that not only did this count relate to conduct that had 

occurred sixteen months earlier, but it also took place at the 

woman’s home and involved touching a different body part. Id.

¶ 30. In the interest of “assuring the defendant a fair trial,” this 

court held “that the trial court exceeded its discretion in denying 

[the defendant’s] motion to sever [the dissimilar] count.” Id. ¶ 31.

¶23 State v. Hildreth, 2010 UT App 209, 238 P.3d 444, involved 

the joinder of six counts of forcible sexual abuse perpetrated 

against four different women by a chiropractor during treatment.

Id. ¶ 2. All the incidents happened under the guise of 

administering chiropractic treatment and while the women were 

alone with the defendant. Id. ¶¶ 5–21. The first woman testified 

that the defendant lifted her hospital gown and touched her bare 

breast, pulled her pants down and touched her pubic bone, and 

(on a subsequent visit) reached under her gown and touched her 

bare breast. Id. ¶¶ 5–6. The second woman testified that the 

defendant put his hand under her shirt and bra and touched her 

breast “skin to skin” and (in a subsequent visit) opened her gown 

to expose “her naked body from the waist down” and massaged 

her hip and buttocks, also touching her pelvic area. Id. ¶¶ 7–8. The 

third woman testified that the defendant, while giving her a 

massage, twice “brushed over” her crotch area, slid his finger 

under her underwear and touched her labia, and lifted the sheet 

covering her, exposing her bare breasts. Id. ¶¶ 10–11 (cleaned up). 

The fourth woman, who worked as a receptionist for the 

defendant, told him that she had a vaginal infection. Id. ¶¶ 13–14. 

The woman allowed the defendant to examine her and apply a gel 

to her vaginal area. Id. ¶ 15. On a subsequent visit, he inserted his 

hand “more fully into her vagina” and rubbed for a long time. Id. 

¶ 16. The defendant also began “flicking her nipple.” Id. ¶ 17
State v. Lim

20190027-CA 10 2022 UT App 69

(cleaned up). And on a follow-up visit, the defendant engaged in 

nearly identical—though much more invasive—touching. Id. ¶ 19.

¶24 The trial court denied the defendant’s motion to sever, 

noting that the evidence as to each woman would be admissible 

at separate trials under rule 404(b) to show motive, mental state, 

plan, absence of mistake, or lack of accident. Id. ¶ 3. The court also 

noted that the conduct for each count (1) involved a defendant 

who “exploited a position of trust as a chiropractor,” (2) occurred 

under the guise of chiropractic care, and (3) happened in a clinical 

setting. Id. (cleaned up).

¶25 Despite the relatively similar circumstances under which 

each incident of abuse occurred, this court concluded that “the 

trial court erred in denying [the defendant’s] motion to sever 

because the charges were neither connected in their commission 

nor part of a common scheme or plan.” Id. ¶ 31. This court 

observed, 

Aside from the fact that [the defendant] was all of 

the women’s chiropractor and that all of the conduct 

occurred during the course of treatment while the 

women were alone with him, there are too many 

variations in the circumstances and conduct to 

conclude that there is a parallel fact pattern that 

plainly demonstrates the existence of a calculated 

plan.

Id. ¶ 36 (cleaned up). Specifically, this court pointed out that the 

“incidents involved different body parts, different levels of 

undress and possibly unnecessary exposure, and different types 

of touching—from light brushing and massage to vigorous 

rubbing and actual penetration.” Id. These differences, this court 

asserted, prevented it from “say[ing] that there [were] striking 

similarities in [the defendant’s] conduct with each woman.” Id.
State v. Lim

20190027-CA 11 2022 UT App 69

B. Proximity in Time

¶26 A “common scheme or plan” exists “when the crimes 

involve a similar fact pattern and proximity in time.” Balfour, 2008 

UT App 410, ¶ 20 (cleaned up). In other words, “factual 

similarities should be viewed in light of their temporal proximity 

to one another.” Hildreth, 2010 UT App 209, ¶ 34. Thus, for joinder 

to be proper, there must be both factual similarities and temporal 

proximity. And our case law on temporal proximity in the joinder 

context is nowhere near as expansive as the State suggests (i.e., 

allowing joinder even when several years or more pass between

separate incidents). A span of five days is close enough—along 

with other similarities—to support joinder. See State v. Lee, 831 

P.2d 114, 118 (Utah Ct. App. 1992). But conduct involving one 

victim that “occurred a full three years before the conduct relating 

to” a different victim and “over two years prior to the conduct 

involving” two other victims “was clearly not a part of a common 

scheme or plan.” Hildreth, 2010 UT App 209, ¶ 37 n.10. Sixteen 

months—along with certain dissimilarities—is also too long for a 

common scheme or plan. Balfour, 2008 UT App 410, ¶ 30. And 

several months was too long in a case involving nearly identical 

rapes of two different victims. State v. Gotfrey, 598 P.2d 1325, 1327–

28 (Utah 1979).

¶27 Citing State v. Jimenez, 2013 UT App 76, 299 P.3d 1158 (per 

curiam), and State v. Hattrich, 2013 UT App 177, 317 P.3d 433, the 

State asserts that this court has “affirmed the joinder of offenses 

that were . . . separated by significant periods exceeding the timegap in this case.” But Jimenez does not specify any time gap 

between the charged offenses; rather, it involved acts of sexual 

“abuse of three siblings over more than a decade.” 2013 UT App 

76, ¶¶ 4, 7. In no place does Jimenez indicate the length of time 

between the individual incidents of abuse. And Hattrich is much 

the same in that it involved twenty-five counts of various types of 

sexual victimization of five juveniles that occurred from 1994 to 

1999. See 2013 UT App 177, ¶¶ 2, 19. Like Jimenez, Hattrich does 

not indicate the length of time between incidents. On the contrary, 

it states that the abuse of three of the victims “was occurring 
State v. Lim

20190027-CA 12 2022 UT App 69

simultaneously” over a three-year period. Id. ¶ 21 n.3 (cleaned 

up).

C. Lim’s Conduct as a Common Scheme or Plan

¶28 Here, the district court exceeded its discretion in joining

the three charged incidents of alleged sexual abuse because they 

did not meet the requirements of a common scheme or plan.

¶29 First, the alleged abuse in the three incidents is too 

dissimilar to qualify for joinder. The difference between the first 

two incidents and the third is obvious in that the first two 

incidents involved an entirely distinct part of the body—resulting

in two charges of object rape—from the third incident, which 

resulted in a charge of forcible sexual abuse. See Hildreth, 2010 UT 

App 209, ¶ 36 (determining that incidents involving “different 

body parts” and “different types of touching” prevented the court 

from finding that there were “striking similarities” in a 

defendant’s conduct with different women). 

¶30 And regarding all three incidents, aside from the fact that 

Lim was the nurse assigned to all three women and that all the 

“conduct occurred during the course of treatment while the 

women were alone with him, there are too many variations in the 

circumstances and conduct to conclude that there is a parallel fact 

pattern that plainly demonstrates the existence of a calculated 

plan.” See id. (cleaned up). As in Hildreth, most of the striking 

similarities the State homes in on consist of similarities of 

circumstance (viz., a female patient suffering from a serious 

medical issue lying in a hospital bed and on pain medication) 

rather than similarities in Lim’s conduct (viz., the calculated 

scheme Lim allegedly employed to touch the prohibited body 

parts). Without more (e.g., greater temporal proximity or
State v. Lim

20190027-CA 13 2022 UT App 69

additional parallel conduct by Lim), touching a prohibited body 

part is simply insufficient to establish a common scheme or plan.7

¶31 Second, the lack of temporal proximity among the 

incidents also prevents them from being part of a common scheme 

or plan. The three charges related to the separate incidents that 

took place over the course of nearly seven years—from January 

12, 2009, until December 31, 2015, with the interval between the 

first two incidents being just over five years and the interval 

between the second and third incidents being a week shy of 

twenty-three months. Our case law does not allow for such an

expansive view of temporal proximity. Even the nearly twentythree months between the second and third incidents lacks

support as an acceptable term to establish temporal proximity. As 

discussed above, the cases cited by the State to argue joinder is 

acceptable even with such lengthy gaps in time as present here do 

not support the conclusions the State advances. Relatively 

frequent abuse spread out over a period of five or ten years is not 

the same as three distinct incidents of abuse separated 

respectively by over five years and nearly two years. See Jimenez, 

2013 UT App 76, ¶¶ 4, 7; Hattrich, 2013 UT App 177, ¶¶ 2, 19, 21

& n.3.

¶32 In sum, “we are impelled to conclude that the separate and 

different charges” of sexual assault of the three patients “are not 

of such similarity in character and circumstances of commission 

that, considering fairness” to Lim, they should have been joined 

under Utah Code section 77-8a-1. See Gotfrey, 598 P.2d at 1328.

7. Indeed, given the striking similarity of the fact patterns, the 

outcome of this case is largely dictated by State v. Hildreth, 2010 

UT App 209, 238 P.3d 444. Because the State has not engaged in 

the analysis required to ask us to overturn Hildreth, we feel bound 

by its analysis in arriving at the outcome here.
State v. Lim

20190027-CA 14 2022 UT App 69

II. Prejudice

¶33 Even when severance should have been granted because 

the charged incidents fell short of constituting a common scheme 

or plan, as is the case here, a defendant must still show prejudice 

to prevail. State v. Calliham, 2002 UT 86, ¶ 34, 55 P.3d 573 (“Any 

error in denying severance will be deemed harmless unless [a] 

defendant can establish a reasonable likelihood of a more 

favorable outcome if the court had granted a severance.” (cleaned 

up)); see also Utah R. Crim. P. 30 (a) (“Any error, defect, 

irregularity or variance which does not affect the substantial 

rights of a party shall be disregarded.”). Indeed, prejudice must 

also be evaluated even when joinder is proper under the common 

scheme or plan rubric. See Utah Code Ann. § 77-8a-1(4)(a)

(LexisNexis 2017) (“If the court finds a defendant . . . is prejudiced 

by a joinder of offenses . . . , the court shall order an election of 

separate trials of separate counts . . . .”); see also State v. Burke, 2011 

UT App 168, ¶ 25, 256 P.3d 1102 (“Even if offenses are properly 

joined, severance may nonetheless be required to prevent 

prejudice to the defendant.”). And 

care must be taken that the [joinder] statute is not 

misused to deprive an accused of a fair trial upon an 

offense by joining different offenses so that evidence 

concerning charges unrelated in time and nature, 

which would normally not be admissible upon a 

trial, could be admitted as to the multiple offenses 

in an effort to stigmatize the defendant and thus 

make it questionable that the jury would give a fair 

and dispassionate consideration to the evidence.

State v. Gotfrey, 598 P.2d 1325, 1328 (Utah 1979). Consequently, we 

proceed to analyze whether the district court exceeded its 

discretion in determining that Lim was not prejudiced by the 

joinder, and we conclude that it did.

¶34 For a joinder to stand, it must “meet the prejudice prong of 

section 77-8a-1.” See State v. Balfour, 2008 UT App 410, ¶ 21, 198 
State v. Lim

20190027-CA 15 2022 UT App 69

P.3d 471. “In analyzing the prejudice prong, the trial court must 

determine whether evidence of the other crime would have been 

admissible in a separate trial.” Id. (cleaned up). That analysis (viz., 

the admissibility of the other acts) is governed by rule 404 of the 

Utah Rules of Evidence. See id. And “[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). But otheract “evidence may be admissible for another purpose, such as 

proving . . . absence of mistake.” Id. R. 404(b)(2). 

¶35 However, even if the evidence is admitted for a “proper, 

noncharacter purpose” and the evidence is “relevant to the 

offense being prosecuted,” that “evidence of other crimes, 

wrongs, or acts must be admissible under rule 403,” Balfour, 2008 

UT App 410, ¶ 22, which excludes “relevant evidence if its 

probative value is substantially outweighed by a danger of . . . 

unfair prejudice,” see Utah R. Evid. 403.8 While “a proper rule 403 

8. We are cognizant that the prejudice analysis for joinder is 

usually conducted under the “substantially outweigh[ing]” 

language found in rule 403 of the Utah Rules of Evidence. See, e.g., 

State v. Balfour, 2008 UT App 410, ¶ 22, 198 P.3d 471. But the text 

of the joinder statute does not appear to call for such a high 

threshold. Rather, it requires only that a court order “separate 

trials of separate counts” if a defendant “is prejudiced by a 

joinder.” See Utah Code Ann. § 77-8a-1(4)(a) (LexisNexis 2017). 

We acknowledge that “the burden of demonstrating prejudice is 

a difficult one, and the ruling of the trial judge will rarely be 

disturbed upon review. The defendant must show something 

more than the fact that a separate trial might offer him a better 

chance of acquittal.” State v. Reece, 2015 UT 45, ¶ 73, 349 P.3d 712 

(cleaned up); see also State v. Benson, 2014 UT App 92, ¶ 18, 325 

P.3d 855 (stating that “generalized but unanalyzed assertions” of 

“inherent prejudicial impact” resulting from joinder “fall short of 

demonstrating trial court error” (cleaned up)). However, as this 

case does not turn on the level of prejudice present, we leave for 

(continued...)
State v. Lim

20190027-CA 16 2022 UT App 69

analysis for rule 404(b)” looks first to “the language of rule 403, 

. . . to the extent the court finds it helpful to consider a factor set 

forth in Shickles[9]—or any other factor—it may do so.” State v.

Ring, 2018 UT 19, ¶ 23, 424 P.3d 845 (cleaned up).

¶36 Thus, if Lim shows that the evidence of the three charged 

crimes would not have been admissible at separate trials because 

its probative value was substantially outweighed by the danger 

of unfair prejudice, he can establish that the district court 

exceeded its discretion when it denied his motion to sever. We 

another day the question of whether, under the joinder statute, 

any prejudice must substantially outweigh the value of 

adjudicating the cases together.

9. The Shickles factors are “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, [and] the efficacy of alternative proof.” 

State v. Shickles, 760 P.2d 291, 295–96 (Utah 1988) (cleaned up),

abrogated on other grounds by State v. Doporto, 935 P.2d 484 (Utah 

1997). We note that over the last few years, the strict application 

of these factors has been abandoned. See State v. Fullerton, 2018 UT 

49, ¶ 23 n.5, 428 P.3d 1052. Our supreme court has stated “that 

while some of the Shickles factors may be helpful in assessing the 

probative value of the evidence in one context, they may not be 

helpful in another.” Id. (cleaned up). Rather, in assessing 

prejudice, “courts are bound by the text of rule 403, [and] not the 

limited list of considerations outlined in Shickles.” Id. (cleaned up).

Moreover, “it is inappropriate for a district court to ever consider 

whether evidence will lead a jury to ‘overmastering hostility’”—

which was the last of the original Shickles factors—because the 

“language of rule 403 requires only that evidence not lead to 

unfair prejudice” and “[o]vermastering hostility is both a stricter 

and looser metric by which to judge evidence under rule 403.” 

State v. Cuttler, 2015 UT 95, ¶ 20, 367 P.3d 981; see also Shickles, 760 

P.2d at 295–96 (listing the original Shickles factors).
State v. Lim

20190027-CA 17 2022 UT App 69

conclude that he has made such a showing for the following 

reasons.

¶37 First, as we have already discussed, the lack of similarity 

and extensive time intervals separating the three incidents weigh

against joinder and support a conclusion of prejudice. See State v. 

Hildreth, 2010 UT App 209, ¶ 44, 238 P.3d 444 (concluding that a 

joinder of conduct that lacked similarity and that was separated 

by lengthy intervals of time prejudiced a defendant). 

¶38 Second, when considered in isolation, the strength of the

State’s evidence supporting each individual count was “relatively 

weak.” See id. “There was no confession, no third-party 

eyewitnesses, and no physical evidence that [the three patients]

had been sexually abused; the only direct evidence that abuse 

occurred was [the patients’ testimonies]. Our supreme court has 

described convictions in such cases as not strongly supported by 

the record.” State v. Burnett, 2018 UT App 80, ¶ 39, 427 P.3d 288 

(cleaned up). This is not to say that Lim could not have been 

convicted on any one (or even all) of the counts had they been 

tried separately, but introducing evidence of all three allegations 

in the same proceeding prejudiced Lim by the cumulative 

bolstering effect that the combination had on the otherwise 

uncorroborated allegations. See Hildreth, 2010 UT App 209, ¶ 44

(“[C]umulative prior bad acts evidence may have the tendency to 

suggest a verdict on an improper, emotional basis.”).

¶39 Finally—and perhaps most indicative of the State’s 

objective in pursuing joinder and most damaging to the 

proposition that evidence of each count would be admissible at 

separate trials—we note that the manner in which the State 

connected the three allegations during closing argument, see infra 

¶ 41, certainly suggests that the State was proffering the evidence 

not for a proper noncharacter purpose (viz., to show a lack of 

mistake) but to suggest propensity, see State v. Lane, 2019 UT App 

86, ¶ 25, 444 P.3d 553 (“The way the evidence was presented at 

trial also supports our conclusion that the prior act evidence in 

this case presented a prejudicial propensity inference.”); see also 
State v. Lim

20190027-CA 18 2022 UT App 69

State v. Verde, 2012 UT 60, ¶ 22, 296 P.3d 673 (“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 [the noncharacter purpose] 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.”), 

abrogated on other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 

1016. 

¶40 “In conducting a rule 403 balancing with regard to rule 

404(b) evidence, the evidence’s non-character purpose should be 

weighed on the probative value side of the ledger, while the 

evidence’s value as propensity evidence should be weighed on 

the prejudice side of the ledger.” State v. Fredrick, 2019 UT App 

152, ¶ 45, 450 P.3d 1154 (cleaned up). Here, the potential noncharacter purposes are rather weak and difficult to discern while 

the potential propensity inferences stand out. The State advances 

the argument that all three charges would have been separately 

admissible for a “proper noncharacter purpose under rule 404(b) 

of showing lack of mistake or accident.” Specifically, the State 

argues that evidence of the three incidents would be admissible 

to refute Lim’s claim that the three patients were “mistaken” or 

“confused and disoriented due to side effects of their medication.” 

But as our supreme court recently clarified, where other-acts 

evidence is proffered to assist the jury in evaluating a witness’s 

version of the events, “there is little separating the impermissible 

inference from the permissible one.” See State v. Richins, 2021 UT 

50, ¶ 104, 496 P.3d 158. Admitting similar-act evidence in this 

context could “permit the jury to infer” that the three patients 

correctly reported the inappropriate sexual touching because Lim 

“was accused of doing the same thing before.” Id. Thus, the “risk 

of the jury making a character-based inference substantially 

outweigh[ed] the probative value of the other-acts evidence under 

these circumstances.” Id.

¶41 That the State was in fact advancing a character purpose in 

advocating joinder was made clear in its closing argument. There, 
State v. Lim

20190027-CA 19 2022 UT App 69

the State repeatedly implied—and perhaps explicitly stated—that 

Lim had a propensity to sexually abuse vulnerable patients. The 

prosecutor stated that Lim’s “pattern” of abuse started in 2009 and 

that Lim was charged because he abused patients “again and 

again and again.” The prosecutor went on to describe Lim’s 

“pattern” of abuse three more times and to state that Lim abused 

the patients “again” at least four more times. By making this 

argument, the State was inviting the jury to draw an 

impermissible propensity inference from this evidence. 

¶42 Put succinctly, in analyzing whether prejudice proceeds

from joinder, a court “must determine whether evidence of the 

other crime would have been admissible in a separate trial,” 

Balfour, 2008 UT App 410, ¶ 21 (cleaned up), and evidence of Lim’s 

sexual abuse of two other patients to show that he abused a third 

would not have been admitted because, as we explained above, 

the probative value of the evidence of the separate incidents was 

substantially outweighed by the danger of unfair prejudice, see 

Utah R. Evid. 403. Allowing the jury to learn that Lim was accused 

of sexual abuse of three different patients at different times over a 

period of nearly seven years, with substantial gaps between 

alleged instances of abuse, permitted it to draw an improper

propensity inference that Lim was the kind of person inclined to 

sexually abuse women. We can discern no proper non-character

purpose for the admission of the separate acts. And thus, even if

“we are missing some subtle distinction between the State’s 

proffered purposes and the forbidden propensity inference,” any 

such distinction was likely “lost on [the] lay jury.” See State v.

Gallegos, 2020 UT App 162, ¶ 42, 479 P.3d 631. Therefore, the 

evidence of the separate acts had “little legitimate probative 

value” but came “laden with a substantial risk of unfair 

prejudice.” See id.

¶43 Thus, for these reasons, we conclude that, in addition to not 

meeting the common scheme or plan prong of the joinder statute, 

the district court exceeded its discretion in determining that Lim 

was not prejudiced by the joinder of the three offenses. See Utah 

Code Ann. § 77-8a-1(4)(a) (Lexis Nexis 2017).
State v. Lim

20190027-CA 20 2022 UT App 69

CONCLUSION

¶44 We conclude that the district court exceeded its discretion 

in denying Lim’s motion to sever the three charged counts. They 

were not part of a common scheme or plan, and joining them was 

unfairly prejudicial. 

¶45 Reversed and remanded.