2020 UT App 162

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

DARRIN JAMES GALLEGOS,

Appellant.

Opinion

No. 20190029-CA

Filed December 10, 2020

Third District Court, Salt Lake Department

The Honorable Elizabeth Hruby-Mills

No. 181901242

Sarah J. Carlquist and Brady Smith,

Attorneys for Appellant

Sean D. Reyes, John J. Nielsen, and Richard Pehrson, 

Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which

JUDGE KATE APPLEBY concurred. JUDGE JILL M. POHLMAN

concurred in part and dissented in part, with opinion.

HARRIS, Judge:

¶1 After searching the prison cell Darrin James Gallegos 

shared with a cellmate (Cellmate), guards found a shank hidden 

in a shoe. At first, Gallegos and Cellmate agreed that the shank 

belonged to Gallegos. But a few months later, after criminal 

charges were filed against Gallegos, they changed their stories 

and insisted the shank belonged to Cellmate. A jury later 

convicted Gallegos of possession of a dangerous weapon by a 

restricted person, a first-degree felony. Gallegos now appeals 

that conviction, and challenges the trial court’s admission of 

three pieces of evidence: Gallegos’s previous possession of a 

similar shank, Gallegos’s and Cellmate’s affiliation in gangs, and 
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20190029-CA 2 2020 UT App 162

Gallegos’s and Cellmate’s sentences and parole statuses. Under 

the circumstances, the trial court did not abuse its discretion by 

admitting the gang evidence or evidence about their sentences 

and parole statuses at the time the shank was discovered. But

evidence about the potential sentence Gallegos faced if convicted 

at trial should not have been admitted and, most significantly,

we conclude that the trial court improperly allowed the jury to 

learn that Gallegos had previously possessed a similar shank. 

And we are persuaded that admission of the previous shank 

evidence, in particular, was not harmless. Accordingly, we 

reverse Gallegos’s conviction and remand for a new trial.

BACKGROUND

¶2 Gallegos is an inmate at the Utah State Prison, and for a 

time he shared a cell with Cellmate. One day, prison officials

were searching prisoners’ cells for contraband. While searching 

the cell shared by Gallegos and Cellmate, officers discovered a 

“homemade weapon,” or “shank,” located in an Adidas brand 

shoe. The shoe was located in a common area of the cell, on the 

floor between the two bunks and the toilet. The weapon was a 

nine-inch “piece of steel” cut from the frame of a bunk bed and 

“sharpened . . . into a point” on one end.

¶3 After finding the shank, officers asked Gallegos and 

Cellmate “if either one of them wanted to claim ownership,” and 

both initially denied knowing anything about it. Later that day, 

however, Gallegos admitted to one officer that the shank was 

his, and a few weeks later made the same admission to a 

different officer during a follow-up interview. The prison held 

separate internal disciplinary hearings about the incident for 

both Gallegos and Cellmate, and each of them stated, at their 

hearings, that the shank belonged to Gallegos, and that he would 

“accept accountability” for it. As a result, prison officials 

dismissed all internal disciplinary charges against Cellmate.
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20190029-CA 3 2020 UT App 162

¶4 The State then filed a criminal charge against Gallegos, 

accusing him of one first-degree-felony count of possession of a 

dangerous weapon by a restricted person.1 After that criminal 

charge was filed, Gallegos and Cellmate each changed their 

stories, and claimed that the shank had actually belonged to 

Cellmate, not to Gallegos. In recorded phone calls made from 

prison, Gallegos explained to a listener that he had originally 

claimed ownership of the shank because the likely internal 

prison punishment would be a fine, which did not matter to 

Gallegos because his prison account (referred to as his “books”) 

was already so burdened with other fines and restitution that he 

had stopped using it. Cellmate’s books, on the other hand, were 

clear, and Cellmate had been allowing Gallegos to use his prison 

account for deposits and purchases. If Cellmate were to be fined, 

it would have made using his prison account much more 

difficult for each of them. Moreover, Cellmate also testified that, 

at the time, he had just received his “level three” eligibility to be 

moved from the maximum-security section of the prison to 

general “population,” and if the shank were determined to be 

his, he would have had to remain in maximum security. 

 

1. Under Utah law, possession of a weapon by a restricted 

person is a crime that can be charged as anything from a class A 

misdemeanor up to a first-degree felony, depending on the type 

of weapon involved and on various other factors, including the 

defendant’s criminal history. Gallegos is a “Category I restricted 

person” because of his criminal history, and was charged under 

a statute mandating that the crime of which he was accused was 

a “third-degree felony.” See Utah Code Ann. § 76-10-503(2)(b) 

(LexisNexis 2017). However, the State also alleged that Gallegos 

was a “habitual violent offender,” a status that raises the penalty 

for a third-degree felony to that of a first-degree felony. See id.

§ 76-3-203.5(2)(a). On appeal, Gallegos does not take issue with

the State’s position regarding the severity of the charged offense.
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20190029-CA 4 2020 UT App 162

¶5 As the case proceeded toward trial, the State made

motions asking the trial court to admit three types of evidence. 

First, the State wanted to introduce evidence that, over four 

years earlier, Gallegos had been found to be in possession of a 

similar shank, also cut from the frame of a bunk bed—evidence 

the State considered relevant to the question of who possessed 

the shank on this occasion. Second, the State sought permission 

to inform the jury that Gallegos and Cellmate were members of 

affiliated gangs, and would therefore be more likely to protect 

each other. Third, the State intended to introduce evidence that 

Cellmate was in prison for murder and was serving a sentence of 

life without the possibility of parole (LWOP), while Gallegos, by

contrast, was not only eligible for parole but, at the time the 

shank was discovered, had a parole hearing coming up. The 

State asserted that these last two categories of evidence were 

relevant to show why Gallegos and Cellmate would have 

changed their stories about ownership of the shank. Gallegos 

opposed the motions, asserting that the evidence about his 

previous shank possession was improper under rule 404(b) of 

the Utah Rules of Evidence, and that all of the evidence was 

unduly prejudicial under rule 403.

¶6 After briefing and argument, the trial court granted the 

State’s motions, and allowed the State to introduce all three 

types of evidence. The court offered to give a limiting instruction 

regarding the gang evidence and the parole status evidence, but 

Gallegos declined that offer. Gallegos did seek, and the court 

gave, a limiting instruction regarding Gallegos’s possession of a 

shank on a previous occasion, instructing the jury that it could 

consider Gallegos’s possession of a previous shank,

if at all, for the limited purpose of: [considering] 

[w]hether there was a sufficient nexus 

(relationship) between [Gallegos] and the weapon 

. . . for you to determine that [Gallegos] had both 

the power and intent to exercise dominion and 
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20190029-CA 5 2020 UT App 162

control over any allegedly dangerous weapon in 

this case. This evidence is not admitted to prove a 

character trait of [Gallegos] or to show that he 

acted in a manner consistent with such a trait. Keep 

in mind that [Gallegos] is on trial for the crimes 

charged in this case, and for those crimes only. You 

may not convict a person simply because you 

believe [he] may have committed some other acts 

at another time.

¶7 At trial, the State called several witnesses during its casein-chief, all of whom were officers or investigators affiliated with 

the prison. The officers who found the shank in the shoe 

testified, as did a different officer who found a similar shank in 

Gallegos’s possession more than four years earlier. The State also 

called a prison investigator who specializes in gangs, who

testified about the specific affiliated gangs to which Gallegos and 

Cellmate belonged, and that members of these gangs have a 

duty to “have some sort of weapon” and to be ready to defend 

other gang members. The investigator also testified that fellow 

gang members sometimes agree to take charges for one another, 

particularly where a charge would mean a harsher sentence for 

one gang member as opposed to another. In connection with this 

testimony, the State introduced evidence of Gallegos’s and 

Cellmate’s tattoos to establish their gang affiliations.

¶8 A different prison investigator testified about recorded 

phone calls Gallegos made from the prison, as well as about 

Gallegos’s and Cellmate’s prison accounts and parole statuses. 

With regard to parole status, the investigator testified that 

Cellmate was serving a LWOP sentence and had no possibility of 

being paroled, but that Gallegos, by contrast, was eligible for 

parole and “in theory” could be paroled at any time. Indeed, the 

investigator noted that, at one point, Gallegos had a parole 

hearing scheduled for a date ten months after the shank was 

discovered, and that his parole status could “depend in part on 
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20190029-CA 6 2020 UT App 162

his conduct while in prison.” In connection with this evidence, 

the jury heard Gallegos (on a recorded phone call) mention that 

he was facing “five-to-life” in this case. Although the State made 

no further mention of the potential sentence Gallegos might 

receive if convicted, Gallegos’s attorney mentioned the issue in 

cross-examination and in closing argument, implying that five

years to life was an overly long and unjust sentence for being 

caught with a shank in a shoe.

¶9 Gallegos elected not to testify, but he called Cellmate, 

who testified that both the Adidas shoes and the shank were his, 

and did not belong to Gallegos; he even described in some detail 

the manner in which he had cut the shank from the bed frame. 

Cellmate also testified that, like Gallegos, he had been caught 

with a shank on one previous occasion, before he shared a cell 

with Gallegos; in his case, the previous episode occurred about a 

year before the shank was discovered in their shared cell.

¶10 After deliberation, the jury convicted Gallegos of 

possessing the shank. Outside the presence of the jury, the trial 

court found that Gallegos was a restricted person and a habitual 

violent offender, and that Gallegos therefore was guilty of a firstdegree felony. The court later sentenced Gallegos to prison for

five years to life, to run consecutive to the sentence he was 

already serving.

ISSUE AND STANDARD OF REVIEW

¶11 Gallegos appeals, challenging the trial court’s admission 

of the three types of evidence discussed above. We review for 

abuse of discretion the court’s decision to admit this evidence. 

See Met v. State, 2016 UT 51, ¶ 96, 388 P.3d 447 (stating that a trial 

court’s decision to admit evidence pursuant to rule 403 is 

reviewed for abuse of discretion, which occurs when the court 

“applies the wrong legal standard or its decision is beyond the 

limits of reasonability” (quotation simplified)); see also State v. 
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20190029-CA 7 2020 UT App 162

Allen, 2005 UT 11, ¶ 15, 108 P.3d 730 (“When examining a [trial] 

court’s decision to admit evidence under Utah Rule of Evidence 

404(b), we review for an abuse of discretion.”).

ANALYSIS

I

¶12 Gallegos first challenges the trial court’s decision to allow 

the State to introduce evidence that, on a prior occasion some 

four years before the incident in question, Gallegos possessed a 

similar prison shank, also cut from a bedframe.

¶13 Rule 404(b)(1) of the Utah Rules of Evidence prohibits the 

introduction of evidence “of a crime, wrong, or other act . . . to 

prove a person’s character in order to show that on a particular 

occasion the person acted in conformity with the character.” 

Accord State v. Lopez, 2018 UT 5, ¶ 38, 417 P.3d 116. This 

subsection of the rule “recognizes the dangers of exposing a jury 

to evidence of a defendant’s acts of prior misconduct—

specifically, the risk that the jury will infer that the defendant 

has a reprehensible character, that he probably acted in 

conformity with it, and that he should be punished for his 

immoral character in any event.” State v. Thornton, 2017 UT 9, 

¶ 35, 391 P.3d 1016 (quotation simplified). This forbidden line of 

thinking is sometimes referred to as a “propensity inference”—

that is, if jurors are told that a person has acted in a certain way 

on previous occasions, they may conclude that it is in that 

person’s character to act that way, and may conclude that, due to 

this propensity, the person was much more likely to have acted 

in conformity with that propensity on the occasion in question. 

See, e.g., State v. Lucero, 2014 UT 15, ¶ 14, 328 P.3d 841 (referring 

to the “propensity inference” (quotation simplified)), abrogated 

on other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016; 

accord State v. Verde, 2012 UT 60, ¶ 39, 296 P.3d 673, abrogated on 
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20190029-CA 8 2020 UT App 162

other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016. Our 

supreme court has referred to the propensity inference as 

“improper,” Lucero, 2014 UT 15, ¶ 14, and “impermissible,” 

Verde, 2012 UT 60, ¶ 39; see also id. ¶ 15 (stating that, when prior 

acts evidence “is offered to suggest action in conformity with a 

person’s alleged bad character, it is inadmissible”).

¶14 But while evidence of a defendant’s other bad acts is not 

admissible under rule 404(b) to prove propensity, that rule 

allows admission of evidence of such acts for other purposes. 

The rule provides that such evidence “may be admissible for 

another purpose, such as proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, or 

lack of accident.” See Utah R. Evid. 404(b)(2). Thus, “when past 

misconduct evidence is offered for any other purpose—other 

than to suggest action in conformity with the bad character 

suggested by [a defendant’s] prior bad acts—such evidence is 

admissible so long as it satisfies rules 402 and 403.” See Thornton, 

2017 UT 9, ¶ 36 (quotation simplified).

¶15 Our supreme court has distilled these principles into a 

three-part test that governs admissibility of other-bad-acts 

evidence pursuant to rule 404(b)(2). “Such evidence is admissible 

if it (1) is relevant to, (2) a proper, non-character purpose, and (3) 

does not pose a danger for unfair prejudice that substantially 

outweighs its probative value.” State v. Killpack, 2008 UT 49, ¶ 45, 

191 P.3d 17 (quotation simplified); see also Lucero, 2014 UT 15, 

¶ 37 (instructing “trial courts to engage in a three-part analysis 

under rules 404(b), 402, and 403”).

¶16 The first step in this analysis requires that the evidence be 

relevant, as that term is used in rules 401 and 402. But this test 

presents “a low bar,” see Thornton, 2017 UT 9, ¶ 61, because 

“[e]vidence is relevant if . . . it has any tendency to make a fact 

[of consequence] more or less probable than it would be without 

the evidence,” Utah R. Evid. 401. On appeal, Gallegos does not 
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20190029-CA 9 2020 UT App 162

contend that the court abused its discretion by determining that 

the evidence regarding the previous shank was relevant.

¶17 Gallegos does, however, challenge the trial court’s 

conclusions that the remaining two parts of the test were met 

here. First, he challenges the court’s determination that the 

previous shank evidence was admitted for a proper, nonpropensity purpose. Second, he challenges the court’s rule 403 

determination that the probative value of the previous shank 

evidence was not substantially outweighed by the risk of unfair 

prejudice. In summary, Gallegos asserts that both rule 404(b) and 

rule 403 require exclusion of this evidence. We discuss the 

applicability of each rule, in turn, and conclude that, even if the 

court’s admission of the evidence did not violate rule 404(b), it 

did violate rule 403.

A

¶18 Under the second step of the test, the proponent of the 

prior acts evidence must demonstrate that the evidence is being 

admitted for a proper, non-propensity purpose. Here, the State 

asserts that the prior shank evidence is relevant to link Gallegos 

to the present shank, and helps demonstrate that he at least 

constructively possessed it.2 As the State puts it, “[a]t issue here 

is the relevance of prior possession to show current possession.”

 

2. “Constructive possession is a legal fiction whereby a person is 

deemed to possess contraband even when he [or she] does not 

actually have immediate physical control of the object.” See

United States v. Schmitt, 770 F.3d 524, 534 (7th Cir. 2014) 

(quotation simplified); see also Constructive Possession, Black’s 

Law Dictionary (11th ed. 2019) (defining “constructive 

possession” as “[c]ontrol or dominion over a property without 

actual possession or custody of it”).
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20190029-CA 10 2020 UT App 162

¶19 To prove that Gallegos at least constructively possessed 

the shank, the State must “prove that there was a sufficient 

nexus between the accused and the [contraband] to permit an 

inference that the accused had both the power and the intent to 

exercise dominion and control over” the contraband. See State v. 

Workman, 2005 UT 66, ¶ 31, 122 P.3d 639 (quotation simplified). 

Whether a “sufficient nexus” exists “depends upon the facts and 

circumstances of each case.” Id. (quotation simplified); see also

State v. Fox, 709 P.2d 316, 319 (Utah 1985) (stating that “the 

determination that someone has constructive possession of 

drugs is a factual determination which turns on the particular 

circumstances of the case”). And our supreme court, in a series 

of drug cases, has identified “[s]everal factors [that] may be 

important” in evaluating constructive possession, including the 

following: (a) ownership or occupancy of the residence or 

vehicle where the drugs were found; (b) the presence of the 

defendant at the time the drugs were found; (c) the defendant’s 

proximity to the drugs; (d) “previous drug use”; (e) whether the 

defendant made incriminating statements or exhibited 

incriminating behavior; and (f) the presence of drugs in a specific 

area where the defendant had control. See Workman, 2005 UT 66,

¶ 32; see also Fox, 709 P.2d at 319 (listing factors); State v. 

Anderton, 668 P.2d 1258, 1264 (Utah 1983) (Durham, J., 

concurring majority) (same). But the court has also cautioned 

against rigid reliance on a list of factors in evaluating 

constructive possession, since such factors are “particularly 

relevant to the specific factual context in which those cases 

arose,” and are not necessarily “universally pertinent factors,” 

nor are they “legal elements of constructive possession in any 

context.” See State v. Layman, 1999 UT 79, ¶ 14, 985 P.2d 911.

¶20 Our supreme court has applied this test rather narrowly. 

In particular, there are several things relevant here that our 

supreme court has never done. First, in discussing the “previous 

drug use” factor in its constructive possession test, our supreme 

court has never analyzed the propensity implication that factor 
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20190029-CA 11 2020 UT App 162

seems to invite. Second, that court has never phrased the 

“previous use” factor in terms of “previous possession”; rather, 

it has always spoken in terms of “use.” See Workman, 2005 UT 66, 

¶ 32 (stating that “previous drug use” was a factor that could be 

considered); Anderton, 668 P.2d at 1264. Indeed, in Anderton, the 

relevance of the use factor was limited to “use and enjoyment” 

of the drugs in question in the case, and not prior use of other 

drugs. See 668 P.2d at 1264 (listing the defendant’s 

“participati[on] with others in the mutual use and enjoyment of 

the contraband” as a factor that could be considered (quotation 

simplified)). And third, the parties direct our attention to no case 

in which our supreme court has applied these factors generally, 

or the “previous use” factor specifically, to establish constructive 

possession in any non-drug case. As Gallegos points out, there 

may be reasons why one might consider previous use more 

relevant to constructive possession—and perhaps somewhat less 

related to a forbidden propensity inference—in drug cases than 

in other types of cases.

¶21 But unlike our supreme court, we have extended the 

previous use concept to non-drug cases, and—also without 

analyzing the applicability of rule 404(b)—we have even stated 

that “previous possession of similar contraband by the 

defendant” is relevant to show that the defendant had at least 

constructive possession of contraband in the later incident. See

State v. Lucero, 2015 UT App 120, ¶ 7, 350 P.3d 237 (case 

involving drugs and weapons); see also State v. Clark, 2015 UT 

App 289, ¶ 20, 363 P.3d 544 (stating in a case involving stolen 

identification that “previous possession of similar contraband” is 

a “factor that may support a finding of constructive possession”

(quotation simplified)). And some federal cases, applying the 

federal version of rule 404(b), have employed similar analyses in 

cases involving illegal possession of firearms. See, e.g., United 

States v. Moran, 503 F.3d 1135, 1144 (10th Cir. 2007) (holding that 

evidence that the defendant previously possessed a similar 

firearm was “probative to demonstrate that [he] knowingly 
State v. Gallegos

20190029-CA 12 2020 UT App 162

possessed the firearm” in question (quotation simplified)); 

United States v. Cassell, 292 F.3d 788, 793 (D.C. Cir. 2002) (stating 

that “where a defendant is charged with unlawful possession of 

something, evidence that he possessed the same or similar things 

at other times is often quite relevant to his knowledge and intent 

with regard to the crime charged” (quotation simplified)).

¶22 While we can certainly appreciate that a defendant’s prior 

possession of a firearm is relevant to demonstrating that he 

constructively possessed a similar firearm on a later occasion, it 

appears to us that the main reason such evidence is relevant for 

that purpose is that it demonstrates propensity—that the 

defendant’s previous possession of weapons may indicate a 

propensity to possess weapons, and may indicate that the 

defendant acted in conformity with that propensity and 

possessed another weapon on a later occasion. There is no 

question that propensity evidence has relevance. See State v. 

Murphy, 2019 UT App 64, ¶ 47, 441 P.3d 787 (Harris, J., 

concurring) (stating that propensity evidence “is excluded not 

because it has no probative value but because it has too much” 

(quotation simplified)). But “[f]idelity to the integrity of the rule 

requires a careful evaluation of the true—and predominant—

purpose of any evidence proffered under rule 404(b).” See Verde, 

2012 UT 60, ¶ 22. And after reviewing the parties’ briefs and 

relevant case law, we find it difficult to discern a separate nonpropensity reason why evidence that Gallegos previously 

possessed a similar shank makes it more likely that he

constructively possessed a shank on a later occasion.

¶23 In an attempt to demonstrate a proper non-propensity 

purpose, the State asserts that Gallegos’s previous possession of 

a similar shank was relevant to show his “knowledge of” and his 

“motive and intent to possess” the second shank. Thus, the State 

invokes three of the reasons listed in rule 404(b)(2) as potentially 

valid non-propensity purposes for admission of prior acts 

evidence: knowledge, motive, and intent. In addition, the State 
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20190029-CA 13 2020 UT App 162

phrased its argument differently—and more philosophically—at 

oral argument, asserting that the prior acts evidence was not 

character evidence at all, because it was not intended to say 

anything about who Gallegos was as a person, but instead was 

intended merely to inform the jury of certain acts he had 

committed. We discuss each of these arguments, in turn.

1

¶24 To be sure, “knowledge” can be a proper non-character 

purpose under rule 404(b). Not only is knowledge identified in 

the text of the rule as one of the enumerated permissible 

purposes, see Utah R. Evid. 404(b)(2), we have also previously 

held that, in appropriate cases, prior bad acts evidence can come 

in to prove a defendant’s knowledge in the case at hand, see, e.g., 

State v. McDonald, 2005 UT App 86, ¶ 12, 110 P.3d 149. But it is 

insufficient for the proponent of prior bad acts evidence merely 

to incant the word “knowledge”; instead, in order to analyze 

whether knowledge is a proper non-character purpose, rather 

than just shorthand for a propensity inference, we must know 

more about what type of knowledge the evidence tends to show

in a particular case.

¶25 In some cases, evidence of prior bad acts can help 

demonstrate that a defendant has the requisite state of mind for 

conviction—that he knew that his actions were unlawful or 

likely to result in injury. In McDonald, for instance, the defendant 

was accused of cruelty to animals, a charge resulting from the 

defendant keeping fifty-eight cats in an unventilated, enclosed 

trailer. 2005 UT App 86, ¶¶ 2–6. In order to convict the 

defendant, the State was required to prove that she acted 

“intentionally, knowingly, recklessly, or with criminal 

negligence.” See Utah Code Ann. § 76-9-301(2) (2003). To prove 

the defendant’s state of mind, the State presented evidence that 

she had, on a previous occasion, possessed some fifty cats, and 

that she had been warned by animal control officers at the time 
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20190029-CA 14 2020 UT App 162

that “keeping multiple cats in a confined area for too long a time 

could cause sickness or injury to the cats.” McDonald, 2005 UT 

App 86, ¶ 11. We held that the court did not abuse its discretion 

by admitting the prior acts evidence, because it helped “establish 

[the defendant’s] knowledge that her conduct was likely to 

result in sickness or injury to the cats that she was confining,” 

and therefore the evidence went “directly towards proving [the 

defendant’s] state of mind” in confining the cats. Id. ¶ 12. Thus, 

the prior acts evidence was used primarily to demonstrate the 

defendant’s knowledge that her actions were likely to result in 

injury to the animals, rather than to show that she was the type 

of person who would act cruelly toward animals. Id.; see also

State v. Rackham, 2016 UT App 167, ¶ 17, 381 P.3d 1161 (evidence 

of the defendant’s “previous experience with his young cousins 

and nieces becoming alarmed or affronted by his unwanted 

touching” was relevant to demonstrate the defendant’s 

knowledge that such touching would be unwelcome).

¶26 In other cases, where a defendant contends that he could 

not have committed the crime because he does not possess 

certain knowledge necessary to its commission, some courts 

have concluded that evidence of prior bad acts can be admitted 

to refute that contention. See, e.g., United States v. Miller, 673 F.3d 

688, 698 (7th Cir. 2012) (stating that evidence of prior cocaine 

possession might be relevant to prove knowledge in a case 

where the defendant asserted that “he lacked knowledge of 

cocaine or how to sell it”); United States v. Mendoza, 341 F.3d 687, 

692 (8th Cir. 2003) (holding that, where the defendant argued 

that “he was just along for the ride and did not even know how 

much an ounce of methamphetamine was,” evidence of his prior 

conviction for methamphetamine possession was admissible).

But see Dean v. State, 865 P.2d 601, 608 (Wyo. 1993) (stating that 

“knowledge of how to commit the crime is not the knowledge 

Rule 404(b) permits the admission of prior bad acts to prove”), 

abrogated on other grounds as recognized by Williams v. State, 99 

P.3d 432 (Wyo. 2004). As applied to this situation, had Gallegos 
State v. Gallegos

20190029-CA 15 2020 UT App 162

defended the case by asserting that he did not know how to cut a 

shank from a bed frame and therefore the shank could not have 

been his, evidence of his prior shank possession arguably would 

have been relevant for a non-propensity knowledge-based 

purpose: to rebut the contention that Gallegos did not know how 

to make a shank from a bed frame.

¶27 In this case, however, the State does not claim to have 

offered the prior bad acts evidence to demonstrate either of these 

types of knowledge. Gallegos did not defend the case by 

asserting that he lacked knowledge about how to make a shank, 

and Gallegos’s state of mind (that is, whether he acted with 

intent, knowledge, recklessness, or negligence) was never the 

issue. Instead, the State asserts that the prior bad acts evidence is 

relevant to the constructive possession issue because it tends to 

show that Gallegos had “knowledge of . . . the shank” on this 

occasion. But under these circumstances, given Gallegos’s 

defenses and the relevant issues at trial, we fail to see how 

Gallegos’s possession of a shank on a previous occasion helps 

demonstrate Gallegos’s “knowledge of” the shank in question, 

other than through a propensity inference.3 See Verde, 2012 UT 

 

3. One federal court examining this issue in a similar case 

acknowledged that admitting evidence of a prior instance of 

weapons possession “to prove knowledge” for constructive 

possession purposes on a later occasion “involves a kind of 

propensity inference (i.e., because [the defendant] knowingly 

possessed a firearm in the past, he knowingly possessed the 

firearm in the present case).” See United States v. Moran, 503 F.3d 

1135, 1145 (10th Cir. 2007). In that case, the court admitted the 

evidence nonetheless, but did so using a probability theory 

similar to the doctrine of chances. See id. (stating that the prior 

acts evidence could be admitted for the purposes of supporting 

an inference resting “on a logic of improbability that recognizes 

that a prior act involving the same knowledge decreases the 

(continued...)
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20190029-CA 16 2020 UT App 162

60, ¶ 26 (“In context, it seems much more likely that [the 

evidence] was aimed at sustaining an impermissible inference 

that [the defendant] acted in conformity with the bad character 

suggested by his prior bad acts.”). We are therefore unconvinced 

that “knowledge” can supply a proper non-character purpose 

for admission of the prior bad acts evidence under the 

circumstances presented here.

2

¶28 In addition to knowledge, the State also argued that 

evidence of Gallegos’s prior shank possession should be 

admissible to show his “motive” to possess the current shank. 

Motive is one of the reasons listed in rule 404(b)(2) that might 

serve to justify admission of prior bad acts evidence, see Utah R. 

Evid. 404(b)(2), and we have recognized its applicability in some

cases, see State v. Losee, 2012 UT App 213, ¶¶ 18–19, 283 P.3d 1055 

(affirming the admission of evidence of a previous assault, 

because it explained why the defendant might have had a 

motive to solicit the murder of the victim of the original assault).

 

(...continued)

likelihood that the defendant lacked the requisite knowledge in

committing the charged offense”); see also State v. Verde, 2012 UT 

60, ¶¶ 47–51, 296 P.3d 673 (describing the doctrine of chances), 

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

1016. While the doctrine of chances was among the grounds the 

State invoked when seeking admission of the prior shank 

incident before the trial court, that court made no ruling 

regarding the applicability of the doctrine of chances, and on 

appeal the State does not ask us to affirm the court’s admission 

of the shank evidence pursuant to the doctrine of chances; we 

therefore do not address whether that doctrine might apply here.
State v. Gallegos

20190029-CA 17 2020 UT App 162

¶29 In this case, however, Gallegos’s motive was never in 

question. Gallegos was a maximum-security prisoner at the Utah 

State Prison, and was a member of a prison gang that demanded 

loyalty of its members, including a duty to “have some sort of 

weapon” and to be ready to defend other gang members. 

Nothing in the record suggests that there was any mystery about 

why Gallegos might have wanted to possess a prison shank, and 

he did not argue he lacked a motive to possess one.

¶30 And the State’s reference to “motive” in its briefing is 

fleeting, and unaccompanied by any explanation of how the 

prior acts evidence would have materially added to the jury’s 

perception of what Gallegos’s motive might have been, beyond 

the already-obvious evidence of motive, and other than asking 

the jury to draw a propensity inference. We are therefore 

unpersuaded that “motive” can provide a proper non-character 

purpose for admission of the prior bad acts evidence in this case.

3

¶31 Next, the State asserts that evidence of Gallegos’s prior 

shank possession should be admissible to show his “intent to 

possess the shank discovered in his shared cell.” “Intent” is 

another of the purposes specifically listed in rule 404(b)(2), see

Utah R. Evid. 404(b)(2), and we have recognized its applicability 

in appropriate cases, see State v. Von Niederhausern, 2018 UT App 

149, ¶ 19, 427 P.3d 1277 (“Evidence is offered for a proper 

noncharacter purpose if used to prove intent.”). Moreover, as the 

State emphasizes, the touchstone of our supreme court’s 

constructive possession test is whether the defendant “had both 

the power and the intent to exercise dominion and control over” 

the contraband. See State v. Workman, 2005 UT 66, ¶ 31, 122 P.3d 

639 (quotation simplified). The State therefore contends that 

evidence of Gallegos’s previous shank possession is admissible 

to show Gallegos’s intent to possess the shank on this occasion.
State v. Gallegos

20190029-CA 18 2020 UT App 162

¶32 As discussed above, however, Gallegos’s intent—in a 

mens rea4 sense—was never at issue in the case. Gallegos’s 

defense rested on the assertion that the shank was not his, but 

Cellmate’s; his argument was that he did not possess the shank 

at all, not that he possessed the shank with less-than-criminal 

intent. This is distinct from many other “intent” cases. See, e.g., 

State v. Widdison, 2001 UT 60, ¶ 45, 28 P.3d 1278 (affirming the 

admission of previous acts of child abuse to show the “intent 

and mental state” of the defendant when she committed the 

abusive acts of which she was accused); State v. Vu, 2017 UT App 

179, ¶ 19, 405 P.3d 879 (affirming the admission of prior acts of 

methamphetamine sales to demonstrate that the defendant likely 

intended to sell, rather than use himself, the distributable 

amount of methamphetamine with which he was found).

¶33 In this case, the only way in which “intent” is relevant is 

as a part of the constructive possession test—whether Gallegos 

had the “intent to exercise dominion and control over” the shank 

in question. See Workman, 2005 UT 66, ¶ 31 (quotation 

simplified). But in this context, “intent” refers simply to 

possession. The State seeks to admit the evidence to demonstrate 

that, because Gallegos once possessed a shank on a previous 

occasion, it is more likely that he had “intent to” possess one on 

this occasion. But this boils down to nothing more than a 

propensity inference.

¶34 Without question, the State had to prove that Gallegos 

constructively possessed the shank, and as part of that inquiry 

had to show that Gallegos had the “intent to exercise dominion 

 

4. Mens rea is “[t]he state of mind that the prosecution, to secure 

a conviction, must prove that a defendant had when committing 

a crime,” and “is the second of two essential elements of every 

crime at common law, the other being the actus reus.” Mens rea, 

Black’s Law Dictionary (11th ed. 2019).
State v. Gallegos

20190029-CA 19 2020 UT App 162

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

supreme court has noted,

the technical relevance of a defendant’s intent is 

not enough to justify the admissibility of evidence 

of prior bad acts purportedly aimed at establishing 

intent under rule 404(b). Fidelity to the integrity of 

the rule requires a careful evaluation of the true—

and predominant—purpose of any evidence 

proffered under rule 404(b). Thus, if proof of intent 

is merely a ruse, and the real effect of prior 

misconduct evidence is to suggest a defendant’s 

action in conformity with alleged bad character, 

the ruse is insufficient and the evidence should not 

be admitted.

Verde, 2012 UT 60, ¶ 22 (quotation simplified). While the prior 

bad acts evidence here may be technically relevant to show 

intent to possess under Workman, we are unable to discern a nonpropensity pathway through which that evidence helps prove 

intent to possess. We are thus unpersuaded that “intent” 

provides a proper non-character purpose for admission of 

evidence that Gallegos previously possessed a shank.

4

¶35 Finally, at oral argument before this court, the State took a 

slightly different tack, asserting that, in this context, there is a 

difference between “who a person is” and “what a person did,” 

and that rule 404(b) only bars evidence of the former—that is, it 

bars evidence of a person’s negative character, and does not 

necessarily bar evidence of a person’s prior bad acts insofar as 

that evidence does not bear on the essence of the person’s 

character. Specifically, the State argued that, in this case, the 

evidence of prior shank possession was not intended to show 

that Gallegos was a bad person generally, just that he was a 

person “with a certain level of knowledge or a certain motive,
State v. Gallegos

20190029-CA 20 2020 UT App 162

[and] therefore . . . likely had that motive or that knowledge in 

this instance.” The State argued that the rule excludes propensity 

evidence only when a prosecutor “add[s] an extra step there and 

say[s], ‘somebody did something bad, therefore they are a bad 

person, therefore on this occasion they did something bad.’” In 

essence, “the State’s view is that you can show that somebody 

had intent on a prior occasion and therefore they had intent on 

this occasion without saying anything about who they are.” 

¶36 We acknowledge the structure of rule 404(b), which 

forbids introduction of “[e]vidence of a crime, wrong or other 

act” for the purpose of proving “a person’s character in order to 

show that on a particular occasion the person acted in 

conformity with that character,” yet allows introduction of prior 

bad acts evidence for other purposes, including “proving 

motive, . . . intent, . . . [or] knowledge.” See Utah R. Evid. 

404(b)(1)–(2). But the term “character,” as used in rule 404(b), is 

broader than the State suggests. The term as used there means 

more than whether the person is, at root, a generally goodhearted person with positive qualities; rather, the term is also 

intended to encompass specific traits or propensities the person 

might have, some of which might be negative even if the person 

could be considered generally a good person. Indeed, the rules 

of evidence themselves make clear that there is more than one 

way to prove a person’s “character”: in addition to offering

evidence of the person’s general reputation in the community, in 

certain instances litigants may prove character by offering 

“relevant specific instances of the person’s conduct.” See Utah R. 

Evid. 405; see also David P. Leonard, The New Wigmore: A Treatise 

on Evidence: Evidence of Other Misconduct and Similar Events § 1.2 

(2009) (stating that character evidence includes “evidence of 

other wrongful acts”). That is, evidence of specific acts, even if 

not presented as evidence of a person’s general character, can 

lead a factfinder to draw inferences about a person’s 

propensities, and therefrom to infer that the person may have 

acted in conformity with those propensities.
State v. Gallegos

20190029-CA 21 2020 UT App 162

¶37 Our supreme court has noted that the ban on propensity 

evidence is also concerned with evidence of specific behavior, 

and not just evidence of general character, because evidence of 

specific behavior can lead to inferences about broader character 

traits. See, e.g., State v. S.H., 2002 UT 118, ¶ 24, 62 P.3d 444 

(stating that the ban on propensity evidence works “to ensure 

that a defendant is only convicted because he committed the 

charged offense and not because the jury is convinced of his 

cumulative bad behavior” (emphasis added)). Indeed, rule 

404(b)’s restrictions on evidence of prior bad acts are in place 

precisely because of the concern that juries might infer from such 

evidence that a defendant has a negative character trait and 

might have acted in conformity therewith. See State v. Thornton, 

2017 UT 9, ¶ 35, 391 P.3d 1016 (stating that rule 404(b) 

“recognizes the dangers of exposing a jury to evidence of a 

defendant’s acts of prior misconduct—specifically, the risk that 

the jury will infer that the defendant has a reprehensible 

character [and] that he probably acted in conformity with it” 

(quotation simplified)); Verde, 2012 UT 60, ¶ 26 (stating that the 

propensity ban is concerned with juries drawing “an 

impermissible inference that [the defendant] acted in conformity 

with the bad character suggested by his prior bad acts”).

¶38 Thus, rule 404’s ban on character evidence includes more 

than just a ban on evidence tending to show that a person 

possesses a generally bad character—is a “bad person”—and 

acted in conformity with that bad character; it also includes a 

ban on evidence tending to show that a person—who might 

otherwise be a good person—has a specific negative character 

trait (or propensity) and acted in conformity with that trait. 

Evidence does not have to impugn a person’s entire character in 

order to fall within the ambit of the propensity ban.

¶39 Applying these principles to this case, we take the State at 

its word when it asserts that it did not offer the evidence of 

Gallegos’s prior shank possession in an effort to prove that 
State v. Gallegos

20190029-CA 22 2020 UT App 162

Gallegos is a bad person. But that evidence surely did raise the 

inference that Gallegos—who might otherwise be a good 

person—might be a person who has a propensity for making 

and keeping prison shanks while incarcerated, and that he might 

have acted in conformity with that propensity in this case. Such 

an inference is forbidden, despite the fact that it may not say 

anything about Gallegos’s character generally.

¶40 In the end, we remain unpersuaded that a proper noncharacter purpose existed to support the admission of evidence 

that Gallegos possessed a different shank years earlier. Although 

we acknowledge that, under prior precedent, “previous 

possession of similar contraband by the defendant” is a factor 

that may be considered in evaluating constructive possession, see

State v. Lucero, 2015 UT App 120, ¶ 7, 350 P.3d 237, it is important 

to note that none of our state’s previous constructive possession 

decisions analyzed the rule 404(b) implications of considering 

“previous possession” in connection with constructive 

possession. Because an act of previous possession is a prior bad 

act within the ambit of rule 404(b), we consider it insufficient to 

simply admit evidence of previous possession in this context, 

without examining whether a proper non-character purpose 

exists to support admission of the evidence.

¶41 In this case, none of the potential non-character purposes 

proffered by the State seem to fit. All of the proffered purposes—

knowledge, motive, and intent—seem rooted in a forbidden 

propensity inference: that because Gallegos previously 

possessed a shank, he has a propensity to make and keep 

shanks, and he acted in conformity with that propensity here.

B

¶42 But even if we assume, for the purposes of argument, that 

in our analysis we are missing some subtle distinction between 

the State’s proffered purposes and the forbidden propensity 

inference, in our view any such distinction is likely to be lost on 
State v. Gallegos

20190029-CA 23 2020 UT App 162

a lay jury, and therefore the prior bad acts evidence has little 

legitimate probative value, yet comes laden with a substantial 

risk of unfair prejudice. As noted above, the third step in the 

analysis is to apply rule 403 of the Utah Rules of Evidence, and 

assess whether the evidence’s probative value is substantially 

outweighed by the risk of unfair prejudice. See Utah R. Evid. 403; 

see also State v. Killpack, 2008 UT 49, ¶ 45, 191 P.3d 17 (describing 

the third step in the test as an analysis of whether the evidence 

poses “a danger for unfair prejudice that substantially outweighs 

its probative value” (quotation simplified)). In our view, even if 

there exists a non-propensity purpose served by admission of 

the prior shank evidence in this case, we conclude that the 

legitimate probative value of any such evidence is substantially 

outweighed by the near-certainty that the jury will draw the 

tempting yet forbidden propensity inference.

¶43 When conducting a rule 403 balancing test in this context, 

where fear of a forbidden propensity inference is present, courts 

should weigh the evidence’s valid non-character purpose “on 

the probative value side of the ledger,” and should weigh the 

“evidence’s value as propensity evidence . . . on the prejudice 

side of the ledger.” See State v. Fredrick, 2019 UT App 152, ¶ 45, 

450 P.3d 1154 (quotation simplified); see also United States v. 

Ballou, 59 F. Supp. 3d 1038, 1069 (D.N.M. 2014) (determining 

that, “[w]ith all rule 404(b) evidence,” courts must undertake a 

rule 403 analysis under which they “weigh the licit, probative 

value of the evidence—meaning the value of the rule 404(b) 

inference—against the danger of unfair prejudice—which 

includes the character-propensity inference”).

¶44 In this case, the probative value of the prior acts evidence, 

provided by valid non-propensity purposes, is low. As noted, 

we cannot readily discern a proper non-character purpose for 

the admission of this evidence. Moreover, even if we could 

discern a proper non-character basis to admit this evidence for 

purposes of demonstrating knowledge, motive, or intent, we 
State v. Gallegos

20190029-CA 24 2020 UT App 162

would be forced to confront the fact that those issues were not 

actively contested at trial. As noted, Gallegos’s motive to possess 

the shank was obvious, and Gallegos did not argue that he had 

no motive to possess it. And Gallegos’s state of mind, in a mens 

rea sense, was never really at issue; he did not argue that he 

possessed the shank but did so with a non-culpable mental state. 

When intent—or knowledge or motive—is “uncontested and 

readily inferable from other evidence, 404(b) evidence is largely

tangential and duplicative.” See Verde, 2012 UT 60, ¶ 26. In such 

situations, the prior bad acts evidence—even if it could be said to 

have a proper non-character purpose—has very little marginal 

probative value. That is the case here.

¶45 The risk of unfair prejudice presented by the prior acts 

evidence in this case, by contrast, is high. As we have explained, 

we are having difficulty discerning any proper non-propensity

purpose for admission of this evidence. And if we are having 

such difficulties, we have no doubt that a lay jury would. The

trial court’s instruction on this point more or less quoted State v. 

Workman, 2005 UT 66, 122 P.3d 639, and stated that the jury

could consider the prior acts evidence “for the limited purpose 

of” considering “[w]hether there was a sufficient nexus 

(relationship) between [Gallegos] and the weapon for [the jury]

to determine that [he] had both the power and intent to exercise 

dominion and control” over the shank, but that the evidence was 

“not admitted to prove a character trait . . . or to show that 

[Gallegos] acted in a manner consistent with such a trait.” See id.

¶ 31. It is certainly not obvious to us how evidence that a 

defendant possessed a weapon on a previous occasion tightens 

the “nexus” between a defendant and a different weapon found 

on a later occasion, other than through a propensity inference, 

and the court gave no further assistance to the jurors to help 

them understand how—if at all—the permissible purpose was 

different from the impermissible purpose. In light of the nature 

of the evidence and the instruction the jury was given, we 
State v. Gallegos

20190029-CA 25 2020 UT App 162

consider it all too likely that the jury would have drawn an 

impermissible propensity inference from this evidence.

¶46 Accordingly, we conclude that any valid probative value 

that this evidence may have had was limited and ultimately 

substantially outweighed by the danger of unfair prejudice. We 

think the best way to sum up this situation is by paraphrasing

our supreme court in Verde:

[E]ven if the past misconduct evidence in this case 

could plausibly be deemed to have been aimed at a 

legitimate purpose under rule 404(b), it would still 

fail under the balancing framework required under 

rule 403. Specifically, and for all the reasons 

detailed above, we conclude that any legitimate 

tendency the 404(b) evidence had to tell a narrative

of [Gallegos’s] specific intent [or knowledge or 

motive] was minimal at best. And we likewise 

conclude that any such legitimate purpose is far 

outweighed by the obvious, illegitimate one of 

suggesting action in conformity with bad character.

See Verde, 2012 UT 60, ¶ 31. Accordingly, we conclude that the 

trial court exceeded its discretion when it admitted evidence that 

Gallegos possessed a different shank some four years before the 

incident in question.

II

¶47 Gallegos next challenges the trial court’s decision to admit 

evidence that he and Cellmate were members of affiliated gangs, 

specifically taking issue with the admission of photographs of 

their tattoos. Gallegos invokes rule 403 of the Utah Rules of 

Evidence, and asserts that this evidence was unduly prejudicial, 

and that the risk of unfair prejudice substantially outweighed 

the evidence’s probative value. We disagree.
State v. Gallegos

20190029-CA 26 2020 UT App 162

¶48 Our supreme court has warned trial courts to “view gangrelated evidence with caution” before admitting it, because such 

evidence often carries with it the risk of “potential prejudice of 

guilt by association.” See State v. Gonzalez, 2015 UT 10, ¶¶ 37, 40, 

345 P.3d 1168 (quotation simplified); see also State v. High, 2012 

UT App 180, ¶ 26, 282 P.3d 1046 (stating that gang evidence 

should be viewed “with caution due to the risk that it may carry 

some unfair prejudice,” including potentially leading “the jury 

to attach a propensity for committing crimes to defendants who 

are affiliated with gangs or allow its negative feelings towards 

gangs to influence its verdict” (quotation simplified)). 

Nevertheless, gang evidence is often admissible. “In the 

appropriate context, gang evidence has probative value 

warranting its admission” even “over claims of prejudice.” High, 

2012 UT App 180, ¶ 27 (quotation simplified); see also Gonzalez, 

2015 UT 10, ¶¶ 37, 40 (stating that “even where gang-related 

evidence is prejudicial, it is not necessarily unfairly prejudicial 

and therefore should be admitted where it has high probative 

value,” and instructing trial courts that “they may admit [gangrelated] evidence when it is introduced for a proper purpose and 

under the right circumstances”).

¶49 In this case, the probative value of the gang-related 

evidence was high. As the State points out, this evidence 

provided a motive as to why Gallegos and Cellmate would 

change their stories about who owned the shank. Even Gallegos 

acknowledges that the evidence tended to show that the two 

men “owe[d] a duty of loyalty to one another” that included 

sometimes “tak[ing] other charges for their fellow gang 

members,” and that at least some gang evidence was 

“reasonably necessary for the State to try to refute Gallegos’s 

defense that the shank belonged to Cellmate.” But Gallegos 

claims the court admitted too much gang evidence, specifically 

taking issue with the admission of photographs of Gallegos’s 

and Cellmate’s tattoos, asserting that “they were highly 

prejudicial and not necessary to establish gang affiliation.”
State v. Gallegos

20190029-CA 27 2020 UT App 162

¶50 We take Gallegos’s point that, after the jury had already 

learned that the two men were in affiliated gangs that impressed 

duties of loyalty upon their members, the additional admission 

of photographs of their tattoos had relatively little (and 

cumulative) marginal probative value. But it is also true that the 

admission of the tattoo evidence added relatively little 

additional risk of unfair prejudice. Gallegos asserts that showing 

the jury photographs of the tattoos suggested to the jury that it 

should “reach a decision on an improper basis—that Gallegos 

was ‘inked up’ and had a criminal disposition.” But the jury 

already knew that the two men had a criminal history—at the 

time the shank was discovered, they were sharing a cell in the 

maximum-security section of the Utah State Prison. Where a 

piece of evidence has relatively low probative value, but also 

presents a relatively low risk of unfair prejudice, a trial court 

does not abuse its discretion by concluding that the risk of unfair 

prejudice from admitting the evidence does not “substantially 

outweigh” its probative value. See Utah R. Evid. 403; see also, e.g., 

State v. Bowden, 2019 UT App 167, ¶ 22, 452 P.3d 503.

¶51 Accordingly, in this case the trial court did not abuse its 

discretion in admitting any of the gang evidence proffered by 

the State, including the photographs of Gallegos’s and 

Cellmate’s tattoos.

III

¶52 Next, Gallegos challenges the introduction of evidence 

related to his and Cellmate’s custody and sentencing. In 

evaluating Gallegos’s argument, it is important to distinguish 

between the two different types of evidence to which this 

argument refers. First, Gallegos is concerned about evidence 

regarding the respective sentences Gallegos and Cellmate were 

serving in prison as of the date the shank was discovered. 

Second, Gallegos is also referring to evidence regarding the 

potential sentence Gallegos might receive if convicted of the 
State v. Gallegos

20190029-CA 28 2020 UT App 162

charged crime at issue during the trial. During oral argument, 

Gallegos clarified that his challenge implicates both types of 

sentencing evidence.

¶53 By pretrial motion, the State sought leave to admit the 

first type of evidence: information about the length of sentence 

both men were serving at the time the shank was discovered, as 

well as their potential eligibility for parole. The State asserted 

that this evidence went a long way toward explaining why 

Cellmate—who was in prison serving a sentence of LWOP—

might attempt to take the criminal charge for possessing the 

shank, and why Gallegos—who was eligible for parole and had 

a hearing coming up—would not want to. The trial court 

granted the State’s motion, and allowed the State to tell the jury 

about the sentences that Gallegos and Cellmate had been serving 

at the time the shank was discovered, as well as their parole 

statuses. During trial, the State presented that evidence through 

one of the prison investigators, who testified that Cellmate was 

serving a sentence of LWOP and was therefore not eligible for 

parole, but that Gallegos was serving a sentence that made him 

eligible for parole and that, at the time the shank was 

discovered, he had a parole hearing coming up in ten months.

¶54 The State’s pretrial motion contained no request for 

permission to inform the jury about the potential sentence that 

Gallegos could serve if convicted of possession of a dangerous 

weapon by a restricted person—the crime that was the subject of 

the trial. And the State may not have had any specific intention

to present any such evidence. However, as noted, the State did 

play for the jury audio recordings of phone calls Gallegos made 

from the prison; it introduced this evidence largely because, 

during the conversations, Gallegos can be heard explaining the 

issues with his prison “books,” and why he agreed to take 

responsibility for the shank during the prison disciplinary

proceedings. But during two of those phone calls, Gallegos 
State v. Gallegos

20190029-CA 29 2020 UT App 162

happens to mention that he has been charged with a first-degree 

felony that carries a potential sentence of “five-to-life.”

¶55 Following the introduction of the audio recordings, the 

State made no further reference to the “five-to-life” statements, 

either in questioning witnesses or in making argument. Gallegos, 

however, mentioned the statements several times. Shortly after 

the recordings were played for the jury, defense counsel asked 

the prison investigator to explain what “five-to-life” meant. 

After the witness explained that it meant that Gallegos “was 

facing from five years in prison to life” if convicted, counsel 

asked: “So for this offense, [Gallegos] could serve life in prison?” 

Then during her closing argument, defense counsel again raised

the issue, noting that Gallegos faced “five-to-life” and told the 

jurors to ask themselves, “Is this justice?,” and then offered her 

view that it was not.

A

¶56 We have no trouble concluding that, in this case, the first 

type of evidence—information about the sentences Gallegos and 

Cellmate were serving at the time the shank was discovered, and 

their parole statuses—was properly admitted. The probative 

value of that evidence was high: it helped explain why Gallegos 

and Cellmate might change their stories, once criminal charges 

were filed against Gallegos, and indicate that the shank 

belonged to Cellmate. Because Cellmate was serving a sentence 

of LWOP and was not going to be eligible for parole no matter 

what, adding another term of years onto his sentence would 

make no practical difference to him. But because Gallegos had a 

parole hearing coming up, being convicted of another crime 

could potentially affect his parole eligibility. And the evidence 

did not come with much risk of unfair prejudice. Ordinarily, 

informing a jury of a defendant’s or a witness’s criminal history 

might pose a risk of unfair prejudice. See, e.g., Robinson v. Taylor, 

2015 UT 69, ¶ 40, 356 P.3d 1230 (holding that admission of a 
State v. Gallegos

20190029-CA 30 2020 UT App 162

defendant’s otherwise irrelevant criminal history unfairly 

prejudiced the defendant). But here, the jury already knew, due 

to the nature of the case, that these men were in a maximumsecurity prison; telling the jury the nature of the sentences they 

were serving did not add much appreciable risk of unfair 

prejudice. Accordingly, the court did not abuse its discretion 

when it granted the State’s motion and allowed it to introduce 

evidence of Gallegos’s and Cellmate’s sentences and parole 

statuses, relative to the sentences they were already serving.

B

¶57 We reach a different conclusion, however, with regard to 

whether the second type of evidence should have been

admitted.5 Ordinarily, a jury considering a defendant’s guilt is 

 

5. After reviewing the record, we are not at all convinced that 

Gallegos adequately preserved for our review the specific 

question of whether the “five-to-life” statements should have 

been admitted into evidence. Gallegos did not make a specific 

request that this evidence be excluded; he certainly made no 

request that the “five-to-life” references be redacted from the 

audio recordings. Indeed, the State’s motion only concerned 

itself with the first type of sentence/parole status evidence, 

relating to the sentences Gallegos and Cellmate were already 

serving, and the court’s ruling allowing admission went only to 

that request. We are therefore not persuaded by Gallegos’s 

contention that his opposition to the State’s motion preserved his 

objection to the “five-to-life” evidence that came in later. But the 

State does not argue that any part of Gallegos’s objection is 

unpreserved, and has therefore waived the preservation issue. 

See State v. Johnson, 2017 UT 76, ¶ 16, 416 P.3d 443 (“When a 

party fails to raise and argue an issue on appeal, . . . that issue is 

waived and will typically not be addressed by the appellate 

court.”). In Johnson, the court declined to “address the effect” of 

(continued...)
State v. Gallegos

20190029-CA 31 2020 UT App 162

not allowed to hear about or otherwise consider the potential 

sentence a defendant might face if convicted. See State v. Cude, 

784 P.2d 1197, 1203 (Utah 1989) (stating that “[p]ossible 

punishment . . . is usually not a proper matter for jury 

consideration”); see also United States v. Thomas, 895 F.2d 1198, 

1200 (8th Cir. 1990) (stating that “details regarding a defendant’s 

possible punishment are irrelevant to the issues” that a jury 

considering guilt must decide); Model Utah Jury Instructions 2d, 

CR215 (2018), https://www.utcourts.gov/resources/muji/ 

[https://perma.cc/QY8G-9N9H] (instructing juries not to 

“consider what punishment could result from a verdict of 

guilty,” and that “punishment is not relevant to whether the 

defendant is guilty or not guilty”). And not only is such evidence 

irrelevant, it can carry the risk of unfair prejudice, because 

learning about the potential sentence could cause a jury to be 

 

(...continued)

the interaction between our doctrines of waiver and preservation 

in instances where a party fails to argue on appeal that its 

opponent failed to preserve an issue. Id. ¶ 17 n.5. More recently, 

however, our supreme court has indicated that appellate courts 

have “discretion” in this situation to either “raise a preservation 

issue on our own initiative when it provides an alternative basis 

for affirmance,” or to “decide to address the matter on appeal 

despite the lack of preservation.” See State v. Malo, 2020 UT 42, 

¶ 20 n.7, 469 P.3d 982. In this situation, we elect to address the 

matter despite the apparent lack of preservation; we do so not 

only because the parties have fully briefed the issue and 

presented it for our review, but also because we are reversing on 

the issue of the improperly-admitted shank evidence, and we 

therefore make an effort to give the parties guidance regarding 

the sentencing evidence that might be useful on remand. Were 

we not already reversing for other reasons, we would likely have 

exercised our discretion differently, for the reasons ably 

described in the dissent. See infra ¶¶ 76–78. 
State v. Gallegos

20190029-CA 32 2020 UT App 162

“swayed by [its] sympathetic or antipathetic feelings toward a 

defendant because of an anticipated sentence.” See Cude, 784 

P.2d at 1203.

¶58 The audio recordings in which the “five-to-life” references 

were embedded were properly admitted for other purposes, and 

Gallegos does not argue to the contrary. But those recordings 

could have served their intended purpose—to show that 

Gallegos had useless “books” and was using Cellmate’s account 

for purchases, and therefore had incentive to take upon himself 

all administrative blame for the shank—without the largely 

extraneous “five-to-life” references. Indeed, those specific 

portions of the audio recordings could have been redacted 

without unduly impacting the recordings’ evidentiary value. 

The “five-to-life” references therefore had very low probative 

value, yet came with significant potential for unfair prejudice.

¶59 The State asserts that the information about the potential 

“five-to-life” sentence came into evidence more or less 

inadvertently. In its written motion, the State had not specifically 

sought to introduce any evidence about the potential sentence 

facing Gallegos, and the State did not make any further reference 

to that evidence in support of its case. As the State correctly 

points out in its brief, “the State’s focus in questioning and 

argument was not on what Gallegos’s potential sentence would 

be, only that it could (or not) delay his [parole] release date.” The 

State also notes that it was Gallegos—and not the State—who 

later attempted to use the five-to-life information to his 

advantage, explicitly arguing during closing that the jury should 

acquit because, among other things, imposing a sentence of fiveyears-to-life under these circumstances would be unjust.

¶60 But the fact that the State may not have had a specific 

intent to introduce that evidence does not alter the fact that it 

should not have been admitted. And we credit Gallegos’s 

argument that, after the “five-to-life” references came in, his 
State v. Gallegos

20190029-CA 33 2020 UT App 162

attorney had to make the best of that evidence, cf. State v. Cruz, 

2016 UT App 234, ¶ 44, 387 P.3d 618 (stating that “once a court 

has ruled counsel must make the best of the situation”), and 

therefore attempted to make the best argument about the “fiveto-life” references that she could.

¶61 Accordingly, while the first type of sentencing evidence—

regarding the sentences Gallegos and Cellmate were already 

serving—was properly admitted, the second type of sentencing 

evidence—that Gallegos faced a five-years-to-life sentence for 

the charged crime—was not.6 That evidence had little probative 

value, yet carried with it significant potential for unfair 

prejudice, and thus was subject to exclusion under rule 403.

IV

¶62 Finally, we must analyze the prejudicial effect of the 

errors we have identified. “Not every trial error requires 

reversal.” State v. Klenz, 2018 UT App 201, ¶ 64, 437 P.3d 504 

(quotation simplified). In particular, “[a]ny error, defect, 

irregularity or variance which does not affect the substantial 

rights of a party shall be disregarded.” Utah R. Crim. P. 30(a); see 

also State v. S.H., 2002 UT 118, ¶ 26, 62 P.3d 444 (stating that “an 

appellate court will not overturn a jury verdict for the admission 

of improper evidence if the admission of the evidence did not 

reasonably [a]ffect the likelihood of a different verdict”). Such 

errors are not reversible unless there is a “reasonable likelihood 

that the error[s] affected the outcome of the proceedings.” Klenz, 

2018 UT App 201, ¶ 64 (quotation simplified). “A reasonable 

 

6. Although we conclude that the evidence should not have been

admitted, we take pains to point out that we do not necessarily 

fault the trial court, which was never specifically asked to 

exclude the evidence. As noted above, supra note 5, this issue 

may well have been unpreserved.
State v. Gallegos

20190029-CA 34 2020 UT App 162

likelihood requires a probability sufficient to undermine 

confidence in the outcome.” Id. (quotation simplified). 

¶63 In analyzing the prejudicial effects of improperly 

admitted evidence, it is often useful to assess the strength of the 

State’s case, both with and without the evidence. See Cruz, 2016 

UT App 234, ¶ 48 (stating that “when assessing an error’s 

harmfulness, we look, in part, to the overall strength of the 

State’s case” (quotation simplified)). In this case, the State’s best 

evidence was Gallegos’s and Cellmate’s previous admissions, 

both the day the shank was discovered as well as during later 

follow-up interviews and prison disciplinary proceedings, that 

the shank belonged to Gallegos. At trial, however, Gallegos 

offered a strong rebuttal to those previous admissions, 

presenting evidence explaining why his original account was not 

accurate, including Cellmate’s live testimony wherein Cellmate 

not only testified that both the shank and the shoe in which it 

was found were solely his, but described in some detail how he 

had fashioned it from the bed frame. The ultimate question in 

the case was whether the jury would believe the initial 

admissions that the shank was Gallegos’s, or the later evidence 

that the shank was Cellmate’s.

¶64 In an effort to bolster their respective sides of that 

question, both the State and Gallegos pointed to evidence 

tending to corroborate their version of events. Gallegos pointed 

out that he had good reason to want to falsely accept 

responsibility for the shank when the only consequence at issue 

was internal prison discipline, such as fines or different cell 

assignments, because his “books” were full and both he and 

Cellmate wanted to keep Cellmate’s books clean, and because he 

was trying to protect Cellmate’s ability to be moved out of 

maximum security and into the general prison population. The 

State, in contrast, pointed out that Cellmate had every reason to 

falsely accept responsibility for the shank during the criminal 

proceedings, because he was serving a sentence of LWOP while 
State v. Gallegos

20190029-CA 35 2020 UT App 162

Gallegos was still eligible for parole, and another conviction 

could hurt his chances of getting paroled.

¶65 In this context, introduction of evidence that Gallegos had 

previously possessed a similar shank was powerful evidence 

that may very well have made a difference to the jury’s 

evaluation of which version of events to believe. One indication 

that this evidence was important was the State’s emphasis of it 

during closing argument, including particular emphasis that the 

previous shank was very similar to the present shank. See State v. 

Ellis, 2018 UT 2, ¶ 43, 417 P.3d 86 (stating that one factor leading 

to the conclusion that the admission of the evidence was not 

harmless was that “[t]he prosecution emphasized this testimony 

during closing argument”). And during the jury instruction 

conference, outside the presence of the jury, the State specifically 

requested that the instructions regarding constructive possession 

include reference to previous possession, asserting that previous 

possession was “pretty important” and was “a pretty pertinent 

element” in this case. Under the circumstances, we agree that the 

prior shank possession evidence was important, and conclude 

that there was a reasonable likelihood of a different outcome had 

that evidence been withheld from the jury’s consideration.

¶66 The other piece of improperly admitted evidence—the 

apparently inadvertent references to “five-to-life”—is less of a 

concern, and would not have warranted reversal on its own. As 

noted above, a jury determining whether a defendant is guilty 

should not consider what punishment might result from a guilty 

verdict. But in this case, Gallegos’s attorney appeared to 

consider this evidence somewhat helpful, at least in a way, to her 

client’s cause: on several occasions she reminded the jury that 

the potential sentence was five-years-to-life and expressed her 

view that such a punishment was out of proportion to the 

severity of the charged crime. On balance, the amount of 

prejudice visited upon Gallegos from the improper admission of 

this piece of evidence was likely slight.
State v. Gallegos

20190029-CA 36 2020 UT App 162

¶67 In the end, we conclude that there is a reasonable 

likelihood that the outcome of the trial would have been 

different had the evidence of Gallegos’s prior shank possession

been excluded. Because our confidence in the outcome of the 

trial is sufficiently undermined, we must reverse.

CONCLUSION

¶68 The trial court did not abuse its discretion by admitting 

evidence that Gallegos and Cellmate were in affiliated gangs, 

including evidence that each of them had adorned their bodies 

with gang-related tattoos. The court likewise did not abuse its 

discretion in admitting evidence regarding the sentences that 

Gallegos and Cellmate were serving at the time the shank was 

discovered in their shared cell, or their then-current parole 

statuses. But evidence that Gallegos previously possessed a 

similar shank should not have been admitted, nor should 

evidence that the potential sentence upon a guilty verdict in this 

case was to be “five-to-life.” And admission of the previousshank evidence was not harmless, because there is a reasonable 

likelihood that, without it, the outcome of the trial would have 

been different.

¶69 Accordingly, we reverse Gallegos’s conviction and 

remand this case for a new trial.

POHLMAN, Judge (concurring and dissenting):

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

¶71 I agree with the majority’s analysis in Part II concluding 

that the trial court did not abuse its discretion in admitting gang 

evidence, including the photographs of Gallegos’s and 

Cellmate’s tattoos. I also agree with the majority’s analysis in 
State v. Gallegos

20190029-CA 37 2020 UT App 162

Part III.A rejecting Gallegos’s challenge to the admission of 

evidence about the respective prison sentences he and Cellmate 

were serving when the shank was discovered.

¶72 I part ways with my colleagues in their conclusion in Part 

III.B that evidence of Gallegos’s potential sentence was admitted 

in error. Where Gallegos did not object to the admission of this 

evidence, I believe we have no grounds on which to reverse.

¶73 I also disagree with the majority’s conclusion in Parts I 

and IV that Gallegos’s conviction should be reversed on the basis 

that the trial court erred in admitting evidence of his prior shank 

possession. I view questions of admissibility under rule 404(b) as 

among the most difficult to analyze, and the combination of our 

precedent and the deferential standard of review leaves me less 

convinced than my colleagues that the prior shank evidence 

should have been excluded. But even if I were to agree with the 

majority’s analysis on this issue, I would still affirm Gallegos’s 

conviction. Unlike my colleagues, I do not consider it reasonably 

likely that the jury would have returned a different verdict had 

the prior shank evidence not been admitted. And on that basis, I 

would affirm.

I. Potential Sentence Evidence

¶74 Gallegos argues that the trial court abused its discretion in 

allowing for the admission of his statements (on recorded phone 

calls) that he was facing a “five-to-life” sentence if convicted in 

this case. The majority begins its analysis on this point by 

observing that Gallegos did not preserve an objection to the 

admission of this evidence. See supra note 5. I agree with that 

observation.

¶75 As part of the State’s pretrial motion, the State provided 

Gallegos with a transcript of the excerpts of the audio recordings 

it intended to introduce at trial so that Gallegos could focus his 

objection. Gallegos then moved to exclude certain portions of the 
State v. Gallegos

20190029-CA 38 2020 UT App 162

recordings, but he lodged no objection to the admission of the 

“five-to-life” statements. Similarly, Gallegos did not object at 

trial when the State played the audio recordings of the phone 

calls in which the “five-to-life” statements could be heard.7

¶76 As the majority notes, although the State did not raise the 

issue of preservation, we have the discretion to reject Gallegos’s 

challenge on that basis. See supra note 5 (citing State v. Malo, 2020 

UT 42, ¶ 20 n.7, 469 P.3d 982). I would exercise that discretion 

here.

¶77 It is well-settled that “[o]ur adversary system . . . relies 

generally on objections from parties to police the admissibility of 

evidence,” and “[w]e do not require or even expect our trial 

judges to exercise their own independent judgment on the 

question of admissibility.” State v. Hummel, 2017 UT 19, ¶ 109, 

393 P.3d 314. And that, I believe, is why our supreme court has 

stated that there is “no room for reversal of a trial judge under 

an abuse of discretion standard on a ground that was not 

specifically presented to the district court.” State v. Thornton, 2017 

 

7. This appears to have been intentional. The State drew no 

attention to the “five-to-life” statements, but, as the majority 

notes, defense counsel drew specific attention to them in crossexamination of the prison investigator and suggested to the jury 

that justice would not be served if a conviction for being caught 

with a shank were to lead to such a lengthy sentence. See supra 

¶¶ 8, 55. The majority suggests that counsel was just making the 

best of the situation once the evidence came in. Supra ¶ 60. But I 

view it differently. This was not a situation where counsel was 

surprised by a statement from a live witness or where the court 

had ruled the evidence admissible over the objection of counsel.

If counsel had not wanted the jury to hear the “five-to-life” 

statements, counsel had every opportunity to seek their 

exclusion.
State v. Gallegos

20190029-CA 39 2020 UT App 162

UT 9, ¶ 43, 391 P.3d 1016; see also State v. King, 2006 UT 3, ¶¶ 23–

24, 131 P.3d 202 (finding no abuse of discretion when the trial 

court did not consider an issue sua sponte).

¶78 Here, the question of the admissibility of the evidence of 

Gallegos’s potential sentence is one we review for abuse of 

discretion. See supra ¶ 11. Because Gallegos did not object to the 

admission of this evidence, I find no room to conclude that the 

trial court abused its discretion in not sua sponte excluding this 

evidence.

II. Prior Shank Possession Evidence

¶79 As the majority explains, “not every trial error requires 

reversal.” Supra ¶ 62 (quotation simplified); State v. Klenz, 2018 

UT App 201, ¶ 64, 437 P.3d 504. An error in this case would 

require reversal only if it is reasonably likely that the decision to

admit evidence of Gallegos’s previous shank possession altered 

the jury’s verdict. See State v. Kohl, 2000 UT 35, ¶ 17, 999 P.2d 7 

(“We will reverse an erroneous evidentiary ruling only if, absent 

the error, there is a reasonable likelihood that there would have 

been a more favorable result for the defendant.” (quotation 

simplified)). I do not think that it did.

¶80 To prove possession in this case, the State advanced the 

theory that Gallegos constructively possessed the shank. See 

generally State v. Workman, 2005 UT 66, ¶¶ 31–33, 122 P.3d 639 

(describing how to prove possession on a constructive 

possession theory). The State’s theory required it to prove that 

there was “a sufficient nexus” between Gallegos and the shank 

to permit an inference that he “had both the power and the 

intent to exercise dominion and control” over the weapon. See

State v. Clark, 2015 UT App 289, ¶ 14, 363 P.3d 544 (quotation 

simplified). In meeting its burden, the State did not have to 

prove that Gallegos possessed the shank to the exclusion of 

Cellmate. In fact, the State’s theory at trial was that “these two 

men jointly possessed this weapon.”
State v. Gallegos

20190029-CA 40 2020 UT App 162

¶81 I believe that even without the prior shank evidence, the 

State would have easily convicted Gallegos for constructive 

possession because its case against him was unusually strong.

¶82 To begin with, Gallegos admitted ownership of the shank 

not once, not twice, but three different times. He claimed 

ownership on the day it was found in his prison cell; he claimed 

ownership a few weeks later as part of a prison administrative 

hearing; and, he again claimed ownership during a subsequent 

interview with a prison investigator, even identifying where the 

shank was found. And when asked by the investigator why he 

had the shank, Gallegos responded, “Uh, we’re in prison,” and 

commented, “It’s hit or miss, sometimes you guys get me, 

sometimes you don’t.” The jury also heard that the shank 

appeared to have been carved out of the top bunk where 

Gallegos slept.

¶83 But that’s not all. The jury heard testimony that shanks

are “pretty common” in the prison and that Gallegos and 

Cellmate, as members of affiliated gangs, are “supposed to have 

some sort of weapon with them at all times.” A gang expert 

testified that it is “very common” for gang members to share 

shanks, explaining that they may have to share “between each 

other, between cell mates.” And consistent with the expert’s 

testimony, Cellmate confirmed for the jury that he and Gallegos 

would “share stuff.”

¶84 The jury also listened to recordings of Gallegos’s phone 

calls in which he discussed the charges against him. Rather than 

disavowing knowledge of the shank, he explained that he was 

hopeful the shank possession case against him would “get 

dismissed,” saying, “I already got . . . my little strategy . . . 

figured out ’cause things played out a certain way.” He said, “I 

got . . . somebody that’s taken the . . . puttin’ their hand out for it 

. . . that it was theirs.”
State v. Gallegos

20190029-CA 41 2020 UT App 162

¶85 All this evidence points heavily to Gallegos’s guilt. And 

even though Cellmate testified at trial that he made the shank 

and hid it in his shoe,8 he also told the jury that he and Gallegos 

“shared things,” and he never claimed that Gallegos was 

unaware of the shank. That is significant. The State did not need 

to prove that the shank belonged exclusively to Gallegos. It had 

to prove only that Gallegos had the power and intent to exercise 

dominion and control over it. And given Gallegos’s multiple 

admissions, combined with the evidence that Gallegos and 

Cellmate were prone to share things, including weapons, I have 

no trouble concluding that the jury would have convicted 

Gallegos even without the prior possession evidence.

¶86 The majority acknowledges much of this evidence but 

believes it is reasonably likely that it was the evidence of 

Gallegos’s prior shank possession that swayed the jury toward a 

conviction. I disagree for several reasons.

¶87 First, while rule 404(b) evidence has the potential to be 

damaging, evidence of Gallegos’s prior shank possession was 

not particularly revelatory. After all, the jury heard evidence that 

Gallegos claimed ownership of the shank in this case—three 

different times, on different days, to different people. Thus, 

 

8. When asked why he claimed ownership of the shank at trial, 

after having previously disavowed such ownership, Cellmate

responded, “Because it was mine, and I don’t feel it’s right to 

have somebody else take the fall for it.” As noted above, the jury 

could have still convicted Gallegos of constructive possession 

even if it was inclined to believe Cellmate’s belated confession. 

But the jury also had plenty of reason to distrust Cellmate. His 

claims of concern likely fell on deaf ears after the jury learned 

that he was in prison for killing three people (and trying to kill a 

fourth) and had previous convictions for theft by deception and 

forgery.
State v. Gallegos

20190029-CA 42 2020 UT App 162

hearing evidence that he claimed ownership of a different shank 

several years earlier was unlikely to carry significant weight.

¶88 Second, in addition to admitting that he possessed the 

shank found in this case, Gallegos suggested to the prison 

investigator that he has possessed shanks at other times when he 

said, “It’s hit or miss, sometimes you guys get me, sometimes 

you don’t.” This evidence, along with evidence from the gang 

expert that it was common for gang members to carry and share 

homemade weapons, blunted the admission of his earlier shank 

possession.

¶89 Third, the majority says that the State emphasized the 

prior possession evidence in closing. See supra ¶ 65. I read the 

record differently. It is true that the prosecutor mentioned the 

prior shank possession in his closing statement. But the State 

placed no greater emphasis on it than the other evidence 

pointing to Gallegos’s guilt. The State did not treat the prior 

possession as the centerpiece of its story. Rather, it treated it as 

just one piece of evidence in a particularly incriminating puzzle.

¶90 Fourth, the trial court gave a limiting instruction on the 

previous shank possession evidence, advising the jury to 

consider the evidence for “the limited purpose” of considering 

whether “there was a sufficient nexus” between the shank and 

Gallegos and instructing the jury not to convict in this case on 

the basis that Gallegos may have committed another act at some 

other time. See supra ¶ 6. This instruction further tempered any 

remaining effect the admission of the prior possession evidence 

may have had. See State v. Calvert, 2017 UT App 212, ¶ 45, 407 

P.3d 1098.

¶91 In sum, I would affirm Gallegos’s conviction. I see no 

grounds to conclude that the trial court abused its discretion in 

not sua sponte excluding the evidence of Gallegos’s potential 

sentence where Gallegos did not object to its admission. And 

even assuming error in the admission of evidence of the 
State v. Gallegos

20190029-CA 43 2020 UT App 162

previous shank possession, I am confident that given the unique 

evidence in this case, the jury would still have convicted 

Gallegos without it.