Date: 02-27-2014

Case Style: State of Utah v. Pailate K. Lomu

Case Number: 2014 UT 41

Judge: Orme

Court: The Utah Court of Appeals on appeal from the Third District Court, Salt Lake Department

Plaintiff's Attorney: Sean D. Reyes and John J. Nielsen, Attorneys for Appellee

Defendant's Attorney: Joanna E. Landau, Attorney for Appellant

Description: ¶1 Defendant Pailate Lomu appeals his conviction on a charge
of aggravated robbery. See Utah Code Ann. § 76-2-202 (LexisNexis
2012); id. § 76-6-302. He argues that there was insufficient evidence
to support his conviction and that the court erred when admitting
evidence of other bad acts under rule 404(b) of the Utah Rules of
Evidence. We affirm.
BACKGROUND1
¶2 In April 2010, Defendant and another man entered a
Maverik convenience store in West Valley City shortly before 3:30
State v. Lomu
2. That case is the subject of another appeal, resolved in a separate
opinion also issued today. See State v. Lomu, 2014 UT App 42.
20110759-CA 2 2014 UT App 41
a.m. They went directly to the cooler section, where Defendant
picked up a case of Budweiser beer. The other man then stood by
the door while Defendant approached the store clerk at the
counter. The store clerk later testified that the man by the door was
acting in a suspicious manner, alternately watching Defendant and
looking outside. The store clerk informed the men that he was
going to deny the sale because it was after 1:00 a.m. Defendant
offered the clerk $100 for the beer anyway, and the clerk refused.
At some point during the clerk’s interaction with Defendant, the
man at the door raised his shirt slightly, moved his hand to his hip,
and informed the clerk he had a gun. Defendant then grabbed the
beer, retained his $100 bill, and fled with the other man in a car
driven by an unidentified individual. The store clerk called the
police. The incident was captured by multiple surveillance cameras
located in the store.
¶3 At trial, the store clerk testified regarding his own memory
of the events, and portions of the video surveillance footage from
the incident were shown to the jury. Defendant moved for a
directed verdict based on insufficiency of the evidence, arguing
that because the video surveillance did not contain audio it could
not confirm the threat and that the store clerk’s testimony was so
inconsistent as to make it wholly incredible. The trial court denied
the motion, stating that the store clerk’s testimony was “sufficient
enough to render it to be a decision of fact for the jury.”
¶4 Evidence was also submitted to the jury, over Defendant’s
objections, of another after-hours beer robbery involving
Defendant that occurred less than two months later at another
Maverik store in West Valley City.2 Defendant argued that there
was no proper noncharacter purpose for admitting the evidence
and that it was highly prejudicial. The trial court, however,
determined that the evidence could be properly admitted under
rule 404(b) of the Utah Rules of Evidence to show “plan, motive,
intent, and purpose.”
State v. Lomu
20110759-CA 3 2014 UT App 41
¶5 The jury convicted Defendant, who conceded he was guilty
of shoplifting, of the much more serious offense of aggravated
robbery. He appeals the conviction.
ISSUES AND STANDARDS OF REVIEW
¶6 Defendant argues that the evidence was insufficient to
support his aggravated robbery conviction. We will affirm a trial
court’s denial of a motion for dismissal made on the basis of
insufficient evidence “if, upon reviewing the evidence and all
inferences that can be reasonably drawn from it, we conclude that
some evidence exists from which a reasonable jury could find that
the elements of the crime had been proven beyond a reasonable
doubt.” State v. Dibello, 780 P.2d 1221, 1225 (Utah 1989).
¶7 Defendant next argues that the trial court abused its
discretion by admitting evidence under rule 404(b) of the Utah
Rules of Evidence of another beer robbery in which Defendant took
part. We review a decision to admit evidence of other acts under
rule 404(b) for an abuse of discretion. State v. Nelson-Waggoner, 2000
UT 59, ¶ 16, 6 P.3d 1120.
ANALYSIS
I. Insufficiency of the Evidence
¶8 A person is guilty of aggravated robbery if he uses or
threatens to use a dangerous weapon while committing a
theft, attempting a theft, or during immediate flight from a
theft. Utah Code Ann. §§ 76-6-301, -302, -404 (LexisNexis 2012).
Because Defendant did not personally make a threat against
the clerk, he was charged as an accomplice. The State was therefore
required to prove beyond a reasonable doubt that Defendant
acted “with the mental state required for the commission of an
offense” and “solicit[ed], request[ed], command[ed], encourage[d],
State v. Lomu
3. As we noted in State v. Binkerd, 2013 UT App 216, 310 P.3d 755,
a defendant can possess a different mental state than the principal
actor and still be guilty of a crime as an accomplice. Id. ¶¶ 24–29.
The crux of a conviction under an accomplice theory is that the
accomplice possessed the intent to commit “an offense” while
assisting another person in committing a crime. See Utah Code
Ann. § 76-2-202 (LexisNexis 2012) (emphasis added). See also
Binkerd, 2013 UT App 216, ¶ 29. Here, Defendant was convicted of
a crime requiring the same mens rea as the crime committed by his
colleague. But identical mental states among co-perpetrators are
not required for conviction under an accomplice theory. See
Binkerd, 2013 UT App 216, ¶¶ 24–29.
20110759-CA 4 2014 UT App 41
or intentionally aid[ed] another” in committing a crime. Id.
§ 76-2-202.3
¶9 Defendant claims that the evidence was insufficient to
support his conviction of aggravated robbery for two reasons: (1)
the store clerk’s testimony was unreliable and (2) the evidence was
not sufficient to show that he possessed the necessary mens rea. In
determining whether the evidence presented to the jury was
sufficient to support its verdict, we will “not sit as a second trier of
fact.” State v. Boyd, 2001 UT 30, ¶ 16, 25 P.3d 985. “So long as there
is some evidence, including reasonable inferences, from which
findings of all the requisite elements of the crime can reasonably be
made,” beyond a reasonable doubt, “our inquiry stops.” State v.
Booker, 709 P.2d 342, 345 (Utah 1985). See State v. Dibello, 780 P.2d
1221, 1225 (Utah 1989) (noting that evidence must be such as would
allow “a reasonable jury [to] find that the elements of the crime had
been proven beyond a reasonable doubt”).
A. Reliability of the Store Clerk’s Testimony
¶10 Defendant argues that the store clerk’s testimony was
sufficiently inconsistent as to render it “so inconclusive or
inherently improbable that reasonable minds must have
entertained a reasonable doubt” about whether Defendant
State v. Lomu
4. The testimony about the man tapping his side was offered by the
clerk at the preliminary hearing but was not repeated at trial.
20110759-CA 5 2014 UT App 41
committed the crime. See State v. Gonzales, 2000 UT App 136, ¶ 10,
2 P.3d 954 (citations and internal quotation marks omitted).
¶11 Defendant first contends that the clerk’s testimony was
contradictory because the clerk offered conflicting accounts as to
whether the threat of a gun was made before or after Defendant
offered to pay for the beer. Defendant also claims the testimony
was unreliable because the clerk had been convicted of a crime
involving dishonesty nearly three decades earlier.
¶12 Defendant next argues that the clerk’s testimony was refuted
by the surveillance video of the incident. Defendant argues that the
video footage shows no evidence of a threat and that it proves the
man by the door “never spoke or opened his mouth.” Also,
Defendant points us to the store clerk’s testimony that he raised
both of his arms when threatened and that the man who made the
threat was tapping his side4 when he stated he had a gun.
Defendant argues that the clerk’s testimony is inconsistent with the
video, which shows that the store clerk raised only one arm and
that the man by the door did not tap his side.
¶13 Finally, Defendant argues that these inconsistencies,
combined with the fact that the clerk improperly identified
Defendant at trial as the man who stood by the door instead of the
man who took the beer, makes the clerk’s testimony so wholly
inconsistent as to be inherently improbable.
¶14 We disagree. “[T]he definition of inherently improbable
must include circumstances where a witness’s testimony is
incredibly dubious and, as such, apparently false.” State v. Robbins,
2009 UT 23, ¶ 18, 210 P.3d 288. We will assess a witness’s testimony
under the doctrine of inherent improbability only when “(1) there
are material inconsistencies in the testimony and (2) there is no
other circumstantial or direct evidence of the defendant’s guilt.” Id.
¶ 19. Here, the inconsistencies in the store clerk’s testimony, all of
State v. Lomu
20110759-CA 6 2014 UT App 41
which were pointed out to the jury, are not so material that “no
reasonable jury could find the defendant guilty beyond a
reasonable doubt.” Id. ¶ 18.
¶15 While the store clerk’s testimony varied as to the timing of
the threat, he consistently maintained that a threat was made.
Whether the threat was made before or after Defendant offered to
pay for the beer is irrelevant because by all accounts it was made
before Defendant fled with the stolen beer.
¶16 We also conclude that the clerk’s testimony was not
conclusively refuted by the surveillance video. The video does not,
as Defendant contends, prove that the man by the door did not
speak or move his lips during the incident. Rather, while the
absence of audio and the angle and quality of the video make it
impossible to tell if a threat was made, the footage makes it equally
impossible to determine that a threat was not made. Further, while
the video shows the clerk raising one arm rather than two, we
agree with the State that the video supports, rather than
contradicts, much of the store clerk’s remaining testimony. The
surveillance footage shows Defendant and another man entering
the store, Defendant approaching the beer cooler, and Defendant
grabbing some beer. The video then shows the other man standing
by the door, looking at the store clerk. At one point he raises his
shirt slightly, with his hand on his hip in the area where a holstered
pistol would customarily be located. The two men then flee,
Defendant with the beer in hand. We therefore cannot say that the
surveillance video rendered the store clerk’s testimony “so
inconclusive and inherently improbable that reasonable minds
must have entertained a reasonable doubt” about Defendant’s
guilt. See State v. Gonzales, 2000 UT App 136, ¶ 10, 2 P.3d 954
(citations and internal quotation marks omitted).
¶17 As to the remaining inconsistencies, “[t]he mere existence of
conflicting evidence . . . does not warrant reversal,” State v. Warden,
813 P.2d 1146, 1150 (Utah 1991), and so the fact that the clerk only
raised one arm instead of two does not persuade us that
Defendant’s conviction was in error. Whether he raised one arm or
State v. Lomu
20110759-CA 7 2014 UT App 41
two has little bearing on the jury’s ultimate determination of
whether Defendant committed a theft in connection with a threat
involving a dangerous weapon. These inconsistencies are therefore
in no way fatal to the conviction. See Robbins, 2009 UT 23, ¶ 19.
Finally, because the identity of Defendant was not at issue in this
case—Defendant admitted he was at the store and committed retail
theft—the store clerk’s confusion over whether Defendant was the
man by the door or the accomplice who took the beer was also not
material. The only issue left to be resolved, then, was whether a
threat involving a dangerous weapon was actually made—a threat
the store clerk consistently testified had occurred.
¶18 Because the surveillance video does not disprove the clerk’s
testimony that a threat was made and actually corroborates many
aspects of the testimony; because a nearly three-decade-old
conviction is not sufficient to require appellate reassessment of a
witness’s credibility; and because none of the inconsistencies in the
clerk’s testimony pointed out by Defendant are material, we
conclude that the clerk’s testimony was not so inherently
inconsistent or improbable as to render the jury’s verdict legally
improper.
B. Mens Rea
¶19 Defendant next argues that even if the evidence was
sufficient to show that a threat was made, it was not sufficient to
show that he acted with the necessary mens rea. Defendant points
to the fact that he tried to pay for the beer and claims he was
unaware his colleague was going to make a threat.
¶20 “An accomplice must . . . have the intent that the underlying
offense be committed.” State v. Briggs, 2008 UT 75, ¶ 14, 197 P.3d
628. And “mere presence, or even prior knowledge, does not make
one an accomplice to a crime absent evidence showing—beyond a
reasonable doubt—that defendant advise[d], instigate[d],
encourage[d], or assist[ed] in perpetuation of the crime.” In re V.T.,
2000 UT App 189, ¶ 11, 5 P.3d 1234 (alterations in original)
(citations and internal quotation marks omitted). When a defendant
State v. Lomu
20110759-CA 8 2014 UT App 41
is put on notice that a co-perpetrator has acted in a way that
elevates a simple theft to aggravated robbery and he chooses to
“actively participate[] and aid[]” that person “rather than fleeing or
even remaining without participating,” it is proper for a jury to
presume the defendant had the requisite mental state for the
elevated crime. See State v. Garcia-Vargas, 2012 UT App 270, ¶ 17,
287 P.3d 474.
¶21 Here, there is evidence that even if Defendant had no prior
knowledge that a gun threat would be made, and even though he
did not personally make the threat, he continued to assist in the
commission of the crime after the threat was made. Defendant
actively participated in the elevated crime by choosing to remove
the beer from the store after the threat was made rather than
leaving the beer behind and exiting the store or “remaining without
participating.” See id. Because “we conclude that some evidence
exists from which a reasonable jury could find that the elements of
the crime had been proven beyond a reasonable doubt,”
including—by inference—that Defendant stole the beer knowing
a threat involving a gun had been made, Defendant’s conviction of
aggravated robbery under an accomplice theory is legally
sustainable. See State v. Dibello, 780 P.2d 1221, 1225 (Utah 1989).
II. Admission of Evidence Under Rule 404(b)
¶22 Defendant argues that the trial court abused its discretion
when it admitted evidence of a subsequent beer robbery that also
involved Defendant. Rule 404(b) allows evidence of other acts
committed by a defendant to be admitted if it is relevant to a
noncharacter purpose “such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.” Utah R. Evid. 404(b). Even if found to be
relevant for a noncharacter purpose, evidence of other acts may
still be excluded “if its probative value is substantially outweighed
by a danger” of unfair prejudice. Id. R. 403. Such evidence must be
“scrupulously examined” by the trial court in order for it to be
properly admitted. State v. Decorso, 1999 UT 57, ¶ 18, 993 P.2d 837.
State v. Lomu
20110759-CA 9 2014 UT App 41
A. Noncharacter Purpose
¶23 Defendant argues that evidence of a beer robbery he
participated in less than two months after the incident at issue was
improperly admitted because there was no legitimate noncharacter
purpose for admitting the evidence. In its ruling, the trial court
stated that it was admitting the evidence for purposes of showing
“plan, motive, intent, and purpose.” Defendant argues on appeal
that “[i]t is unclear how evidence of an unrelated and subsequent
beer [theft] could possibly be relevant to [his] spontaneous decision
to steal the beer in April, under different circumstances and with
a different person.” However, we agree with the State that the trial
court did not abuse its discretion in admitting the evidence to show
intent on the part of Defendant, i.e., to help show that he was not
a mere shoplifter disinclined to steal beer if threats of violence were
part of the transaction.
¶24 Contrary to Defendant’s claim, the similarities between the
two cases are substantial. In both incidents, each of which occurred
at a Maverik convenience store in West Valley City, Defendant
claimed he committed the thefts in the company of men he did not
know until the night of the robberies. As to the April episode, he
claimed to have met the men involved in that robbery—the man
who stood by the door as well as a man who remained outside in
a getaway car—at a dance that evening. In the incident less than
two months later, Defendant claimed he was “just cruising around”
with two men he had met at a party. Both incidents involved
the men entering the Maverik stores, located less than five miles
apart, at around 2:00 or 3:00 a.m. Both times, Defendant went
immediately to the cooler section and removed beer while one of
his companions stood by the door. And in both incidents, evidence
was presented that the man by the door threatened the store clerk
with a gesture or comment suggestive of a gun, at about the time
Defendant walked out with the beer.
¶25 Given that Defendant’s chief defense was that he did not
intend to commit any crime greater than retail theft, the trial court’s
decision to admit evidence of Defendant’s involvement in a second,
practically identical crime was not an abuse of discretion. It was
State v. Lomu
20110759-CA 10 2014 UT App 41
proper to allow the jury to determine whether Defendant could
have twice unintentionally found himself at the same type of store,
in the same city, with the intent to steal beer with complete
strangers and without any knowledge of his companions’ plans to
make a gun threat, or whether the two incidents taken together
were evidence of a higher likelihood that Defendant had the
requisite intent for robbery or aggravated robbery. See State v.
Verde, 2012 UT 60, ¶ 47, 296 P.3d 673 (“[E]vidence of prior
misconduct can be relevant under the so-called ‘doctrine of
chances.’ . . . It is a theory of logical relevance that ‘rests on the
objective improbability of the same rare misfortune befalling one
individual over and over.’”) (quoting Mark Cammack, Using the
Doctrine of Chances To Prove Actus Reus in Child Abuse and
Acquaintance Rape: People v. Ewoldt Reconsidered, 29 U.C. Davis L.
Rev. 355, 388 (1996)).
¶26 We also conclude that the trial court scrupulously examined
this evidence. Scrupulous examination can be inferred based on the
fact that arguments for and against the admission of evidence were
briefed and argued before the trial court, even if the trial court does
not enter a specific ruling or expressly identify the factors it
considered. See State v. Bradley, 2002 UT App 348, ¶ 38, 57 P.3d
1139; State v. Widdison, 2001 UT 60, ¶ 44, 28 P.3d 1278. Such is the
case here. Prior to admitting the evidence, the trial court considered
written briefs and heard argument from both sides. It had before
it information regarding the similarities of the crimes and the
purposes for which the State sought to introduce the evidence. The
trial court then ruled that the evidence would be admitted for the
purposes of illuminating “plan, motive, intent, and purpose.” In
light of the information the trial court considered before making its
decision, the absence of a more detailed explanation by the trial
court is not sufficient to show that the trial court neglected its duty
to scrupulously examine the evidence under rule 404(b).
B. Probative Value and Prejudice
¶27 Defendant next argues that the evidence “caused the jury
to convict [Defendant] out of overmastering hostility against the
weight of evidence.” “The court may exclude relevant evidence if
State v. Lomu
5. In considering these four requirements, courts must keep in
mind the “risk that the jury may draw an improper ‘character’
inference from the evidence or that it may be confused about the
purpose of the evidence.” State v. Labrum, 2014 UT App 5, ¶ 28.
20110759-CA 11 2014 UT App 41
its probative value is substantially outweighed by a danger of . . .
unfair prejudice[.]” Utah R. Evid. 403. Evidence is likely to unfairly
prejudice a defendant when it has “‘an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily,
an emotional one.’” State v. Maurer, 770 P.2d 981, 984 (Utah 1989)
(quoting Fed. R. Evid. 403 advisory committee note).
¶28 Traditionally, Utah courts have utilized what have become
known as the “Shickles factors” in weighing the probative value of
evidence against its potential for unfair prejudice. State v. Burke,
2011 UT App 168, ¶ 34, 256 P.3d 1102. However, we determined in
State v. Labrum, 2014 UT App 5, that when the evidence is offered
in contemplation of the “doctrine of chances,” courts should
instead look to “four foundational requirements” to determine its
probative value, as directed by the Utah Supreme Court in State v.
Verde, 2012 UT 60, 296 P.3d 673. See Labrum, 2014 UT App 5, ¶ 28
(citing Verde, 2012 UT 60, ¶ 57). These four requirements include
materiality, similarity, independence, and frequency.5 Verde, 2012
UT 60, ¶¶ 57–61. We conclude that although this case was tried
prior to Verde and Labrum and their articulation of this new
analytical framework, there are sufficient grounds to affirm the
trial court’s admission of the evidence based on Verde’s
foundational requirements. See id. ¶ 57.
¶29 First, in order to be material, “[t]he issue for which
the uncharged misconduct evidence is offered ‘must be in bona
fide dispute.’” Id. (emphasis in original) (quoting Edward J.
Imwinkelried, The Use of Evidence of an Accused's Uncharged
Misconduct To Prove Mens Rea: The Doctrines Which Threaten to
Engulf the Character Evidence Prohibition, 51 Ohio St. L.J. 575, 592
(1990)). Here, Defendant’s intent to commit aggravated robbery
was in question, and intent was the very reason the State sought to
introduce evidence of the subsequent robbery.
State v. Lomu
6. In the June episode, the third man joined Defendant in raiding
the beer cooler rather than just waiting in the car.
20110759-CA 12 2014 UT App 41
¶30 Second, “there must be some significant similarity between
the charged and uncharged incidents to suggest a decreased
likelihood of coincidence.” Id. ¶ 58. As discussed above, the
similarities between the two beer robberies make them almost
identical. The crimes occurred at roughly the same time in the early
morning with the same number of people,6 involved the same type
of beer and convenience store, and utilized the same general
plan—Defendant took beer from the cooler section and fled while
another man held the door and issued a threat.
¶31 Third, “each accusation must be independent of the others.”
Id. ¶ 60. There is nothing in the record to suggest that the store
clerks collaborated in any way in making their accusations or that
they were even aware of each other prior to trial.
¶32 Finally, we consider frequency. “The defendant must have
been accused of the crime or suffered an unusual loss ‘more
frequently than the typical person endures such losses accidentally.’” Id.
¶ 61 (emphasis in original) (quoting Imwinkelried, supra ¶ 29, at
590). To begin, we note that the commission of a crime on two
occasions in a specific manner is certainly less compelling than the
commission of the same crime a half dozen or more times. So in
considering the probative value of other acts, courts should
properly have in mind the principle that the fewer incidents there
are, the more similarities between the crimes there must be.
Compare State v. Morrell, 803 P.2d 292, 296 (Utah Ct. App. 1990)
(determining that the “almost identical factual pattern” between
two robberies of pizza deliverymen, committed just a few months
apart, justified admission of the first robbery to show intent), with
State v. Widdison, 2001 UT 60, ¶¶ 24–27, 40–49, 28 P.3d 1278
(determining that the admission of numerous instances of prior
child abuse was appropriate to show identity, intent, and lack of
accident despite the fact that not all of the abuse evidence admitted
was similar to the abuse inflicted in the case at hand). Here, the two
crimes committed are almost identical, and the other robbery “was
State v. Lomu
20110759-CA 13 2014 UT App 41
the only evidence, other than [D]efendant’s and [the store clerk’s]
conflicting testimony, bearing on whether [D]efendant’s intent was
to rob” the store or to merely shoplift. See Morrell, 803 P.2d at 296.
We therefore conclude that the other robbery was “extremely
probative” in determining Defendant’s intent. See id.
¶33 Having taken all of the Verde requirements into account and
having determined that there was substantial probative value in
admitting evidence of the other episode, we must also consider
whether the potential for prejudice or confusion from admitting the
evidence substantially outweighed its probative value. See Utah R.
Evid. 403; State v. Labrum, 2014 UT App 5, ¶ 28. The jury received
the following instruction regarding the evidence:
You have heard evidence relating to acts at a
Maveri[k] Store on June 6, 2010, which occurred after
the acts charged in this case. You may consider this
evidence, if at all, for the limited purpose of motive,
opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident. This
evidence was not admitted to prove a character trait
of the defendant or to show that he acted in a manner
consistent with such a trait. Keep in mind that the
defendant is on trial for the crime charged in this
case, and for that crime only. You may not convict a
person simply because you believe he may have
committed some other act at another time.
Especially in light of this instruction, we conclude that the
possibility the jury would convict on an improper basis was
remote, see State v. Maurer, 770 P.2d 981, 984 (Utah 1989), and that
the trial court did not abuse its discretion in determining that the
danger of unfair prejudice did not substantially outweigh the
probative value of permitting the evidence to be admitted.
¶34 Defendant finally contends that the court failed to
scrupulously examine the evidence under rule 403 and that the
court failed to consider all of the necessary Shickles factors.
However, as we have stated, the Shickles factors have been largely
State v. Lomu
20110759-CA 14 2014 UT App 41
supplanted with the four Verde requirements when evidence is
admitted in contemplation of the doctrine of chances. And, as with
examination under rule 404(b) and the Shickles factors, we conclude
that scrupulous examination under rule 403, by means of the Verde
requirements, can be inferred when the trial court has heard
arguments on the relevant issues and has made “sufficient
inquiry,” even if that inquiry was not “expressly” identified by the
court. See State v. Nielsen, 2012 UT App 2, ¶ 16 n.3, 271 P.3d 817.
Here, the court heard all of the information required for full
analysis of prejudice under rule 403 and necessary to assess
materiality, similarity, independence, and frequency when it
accepted briefing and heard argument related to admission of the
evidence. The State argued its reasons for wanting the evidence
admitted and the similarities between the crimes. The trial court
also heard argument from Defendant regarding the relevance of
the evidence and potential prejudice that its admission presented.
We therefore conclude that the court did not err in its admission of
the evidence because all of the Verde factors were either briefed or
argued by the parties, and we can easily infer that the trial court
considered and scrupulously examined them.

Outcome: ¶35 The evidence was sufficient to support Defendant’s
conviction because the evidence was adequate to show both that a
threat was made and that Defendant had the requisite mens rea to
commit aggravated robbery. The trial court properly admitted
evidence of the subsequent beer robbery because there was both a
proper noncharacter purpose for doing so and because the
prejudice of doing so did not substantially outweigh its probative
value. In admitting the evidence, the trial court undertook the
necessary scrupulous examination of the evidence.

¶36 Affirmed.

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