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Evidence of other bad acts is only admissible if relevant for a purpose other than to prove the defendant's character or disposition, if there is clear proof the defendant committed the other acts, and if the prejudice to the defendant does not substantially outweigh the probative value of the evidence. The trial court's decision to admit other bad acts evidence is reviewable for abuse of discretion, which is found only where a defendant can show that the decision was clearly untenable or unreasonable to the prejudice of his case.
Defendant David W. Kirsch was tried on thirteen indictments charging sexual assaults on three young girls between 1984 and 1987. Prior to trial, the defendant unsuccessfully moved to suppress evidence seized from his home pursuant to a search warrant, which was issued based on interviews given by two victims alleging that they were sexually assaulted by the defendant when they were eight years old. The defendant argued that the warrant was not supported by probable cause in that it was based on stale information. At the trial, testimony was admitted regarding other uncharged instances of sexual assault. The trial court permitted the testimony on the basis that the testimony proved motive, intent, and a plan. Of the thirteen indictments on which the defendant was tried, the defendant was found guilty on six indictments involving the same victim. On appeal, defendant argued that the trial court erred in permitting the State to introduce evidence of other bad acts committed by him.
The Court held that there was probable cause even given the lengthy lapse in time between the assaults and the issuance of the search warrant because of the nature of the crime of child molestation and the proclivity for a child molester to retain child pornography and similar materials. Anent the second issue, the Court held that the trial court erred in permitting the testimony about other bad acts. The testimony did not prove motive, intent, or a plan, but instead went to defendant's propensity to assault young girls. According to the Court, in order to be relevant to intent, evidence of other bad acts must be able to support a reliable inference, not dependent on the defendant's character or propensity, that the defendant had the same intent on the occasions of the charged and uncharged acts.