When a contention is made on appeal that evidence is more prejudicial than probative, the issue is forfeited unless the record provides a basis for comparison. Appellant was convicted of committing a lewd act on his 15-year-old daughter and sentenced to prison. Following his release on parole, a parole search of his residence revealed a hard drive containing a video of child pornography. Appellant was charged with Penal Code section 311.11. Prior to trial, he brought an in limine motion to prevent the jury from viewing the entire “extremely graphic” video. Defense counsel to stipulate that the video contained sexual acts performed by a person that appeared to be under 18 years of age, but offered no specific evidentiary alternative. The trial court acknowledged that the prosecution could not be forced to enter into a stipulation and permitted introduction of the entire video, finding that the video’s probative value was extremely high as the jury would use it to determine if it contained child pornography and if defendant knowingly possessed or controlled it. The appellate court found that appellant forfeited his contention that the court abused its discretion in allowing entry of the video because defense counsel offered no alternative to the introduction of the entire video. As such, the appellate court had no means of determining the probative value of alternative evidence and comparing it to the evidence the jury received to determine if the video was impermissibly prejudicial. Also, the court could find no Due Process violation because there was no means of establishing if the evidence was so prejudicial as to render the trial unfair.
Penal Code section 1108 permits evidence of an uncharged act to establish predisposition in a child pornography possession case. Appellant’s daughter testified at trial as to his prior conviction of child molestation. The appellate court found no error as the single molestation of the daughter was probative in that it tended to show that appellant was predisposed to having a sexual attraction to young girls. This attraction supplied a motive for his possession of child pornography and tended to establish his knowing possession of the video file.