State v. Johnson , 825 Utah Adv. Rep. 28 ( 2016 )

2016 UT App 223THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
KEN MONTEY JOHNSON,
Appellant.
Opinion
No. 20141155-CA
Filed November 10, 2016
Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 141907022
Alexandra S. McCallum, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN
concurred.
CHRISTIANSEN, Judge:
¶1 Defendant Ken Montey Johnson appeals his convictions
for burglary, damage to/interruption of a communication device,
and theft.1 He contends that the district court’s instructions to
the jury were inadequate and misleading, that prejudicial
1. Defendant’s opening brief appeals from these three
convictions. However, the same brief also notes that he pled
guilty to the latter two charges. He did not, and does not seek to,
withdraw his guilty pleas. As a result, and because his brief
focuses on the burglary conviction, we review only that
conviction.
State v. Johnson
portions of a voicemail recording were improperly admitted into
evidence, that the judge and bailiff had improper contact with
the jury, and that hearsay evidence was improperly admitted at
trial. We affirm.
BACKGROUND
¶2 ‚On appeal from a jury verdict, we view the evidence and
all reasonable inferences in the light most favorable to that
verdict and recite the facts accordingly.‛ State v. Dozah, 2016 UT
App 13, ¶ 2, 368 P.3d 863. ‚We include conflicting evidence as
relevant and necessary to understand the issues on appeal.‛ Id.¶3 Victim and Defendant divorced in 2010. Victim was
awarded the marital residence, but was required to pay
Defendant $25,000. Victim initially executed a promissory note
in favor of Defendant for the full amount, but Defendant later
agreed to a reduced note of $15,000 due to Victim’s financial
situation. Nevertheless, by the spring of 2014, Victim had yet to
make any payment on the note and the debt had become a point
of dispute between them.
¶4 On March 30, 2014, Defendant called Victim and left a
voicemail stating that he was coming over to talk about the
money. Victim claimed that, in the voicemail, Defendant
‚sounded extremely drunk‛ and was ‚slurring his words.‛
When he arrived at her house and started kicking at the back
door, Victim threatened to call the police. While she dialed 911
on her cell phone, Defendant broke open the back door and
entered the house. Victim accidentally hung up while Defendant
was ‚screaming and yelling‛ because she was scared and
‚shaking like crazy.‛ When the 911 operator returned the call,
Defendant ‚grabbed‛ the phone, feigned punches toward
Victim, and continued to yell in slurred words that he wanted to
talk to Victim. Victim attempted to retrieve the phone but
Defendant grabbed her wrist, saying, ‚I should throw you down
20141155-CA 2 2016 UT App 223State v. Johnson
the stairs right now.‛ Eventually Victim retreated, and
Defendant fled the house with the phone and later destroyed it.
¶5 At trial, the central issue was whether Defendant had
entered or remained in the house with the intent to commit theft
or assault. Defendant argued that he lacked the intent to commit
a theft because he did not enter or remain in the house with the
intent to permanently deprive Victim of her phone. In support of
this claim, Defendant presented his own testimony that he had
taken the phone only to ‚keep her from calling the police‛ and
that he did not intend to assault Victim or steal her phone while
he entered and remained in the house. Defendant also presented
testimony from his friend that he went to the friend’s residence
after fleeing from Victim’s house and had expressed a desire to
‚get back‛ to Victim’s house to ‚give the phone back‛ to her.
According to Defendant, he had no intent to destroy the phone
until he returned to Victim’s house and saw that the police had
arrived whereupon he smashed the phone, ‚‘cause I was mad
the police were there.‛
¶6 During the trial, the State sought to enter into evidence a
recording of a voicemail Defendant left on Victim’s phone about
a week after the incident. The garbled but obscenity-laden
recording was almost four minutes long. In one of the intelligible
portions of the voicemail, Defendant used the phrase ‚arrest me
for breaking and entering,‛ which the State characterized as an
admission. Over Defendant’s objection, the court admitted a 41-
second portion and allowed it to be played for the jury.
¶7 The State also sought to admit Victim’s written witness
statement, which she had made immediately after the incident.
The district court initially admitted the statement over
Defendant’s hearsay objection. After Defendant moved for a
mistrial due to admission of the witness statement, the district
court determined that the witness statement was hearsay and
excluded it. However, the district court denied the motion for a
mistrial. Later, while cross-examining Victim, Defendant
20141155-CA 3 2016 UT App 223State v. Johnson
repeatedly questioned her credibility by pointing out that her
testimony at trial included details not present in her written
witness statement. Defendant also implied that Victim’s $15,000
debt to Defendant gave her a motive to fabricate her allegations
against him. The State again sought admission of the witness
statement, and the district court agreed it should be admitted in
its entirety.
¶8 During a recess in the trial, the judge informed counsel
that she wanted to visit the jurors to explain the reasons for a
delay; counsel acquiesced. When the judge returned, she stated
on the record that she had done so in order to tell the jury that
the recess had run longer than planned due to the preparation of
jury instructions and that the State was deciding whether to put
on any rebuttal. The judge also mentioned that the jurors had
asked if they were going to be able to listen to the recordings of
the voicemail and a 911 call2 or have access to transcripts of them
during deliberations. The judge reported that she had responded
that there were no transcripts and that the judge and counsel
would discuss whether the jurors would get to hear the
recordings.
¶9 The court permitted the jury to hear the recording of the
voicemail as well as the recording of Victim’s 911 call during the
jury’s deliberations. The court explained that the prosecutor
would have to show the bailiff how to play the recordings for
the jury. Defense counsel did not object; rather, he merely asked
that he be allowed to observe the prosecutor’s instruction to the
bailiff. The bailiff then played the recordings for the jury.
¶10 The jury convicted Defendant of burglary and acquitted
him of a threat of violence charge. Defendant appeals.
2. This was apparently a reference to a recording of a 911 call
Victim made after Defendant fled the house.
20141155-CA 4 2016 UT App 223State v. Johnson
ISSUES AND STANDARDS OF REVIEW
¶11 Defendant first contends that the district court’s burglary
instruction was inadequate and misleading. ‚We review
challenges to jury instructions under a correctness standard.‛
State v. Davis, 2013 UT App 228, ¶ 15, 311 P.3d 538 (citation and
internal quotation marks omitted).
¶12 Defendant next contends that the district court violated
rule 403 of the Utah Rules of Evidence when it admitted a
portion of a recording of a voicemail that he left for Victim about
a week after the incident. We review a district court’s ‚decision
to admit or exclude evidence under Rule 403 of the Utah Rules of
Evidence under an abuse of discretion standard, and will not
overturn a lower court’s determination of admissibility unless it
is beyond the limits of reasonability.‛ State v. Williams, 2014 UT
App 198, ¶ 10, 333 P.3d 1287 (citation and internal quotation
marks omitted). ‚*L+ike any other evidentiary ruling, an
erroneous decision to admit or exclude evidence based on rule
403 cannot result in reversible error unless the error is harmful.‛
Id. (citation and internal quotation marks omitted).
¶13 Defendant also contends that both the trial judge and the
bailiff had improper contact with the jury during the trial. We
review the propriety of communications between district court
personnel and deliberating jurors for correctness, disturbing the
verdict only if the error is ‚substantial or prejudicial such that
the result would have been different had it not taken place.‛
Board of Comm’rs of Utah State Bar v. Petersen, 937 P.2d 1263, 1267
(Utah 1997) (ellipsis, citation, and internal quotation marks
omitted). Here, because defense counsel agreed to both the
judge’s and the bailiff’s contact with the jury and did not later
object, we consider Defendant’s argument that defense counsel’s
assistance was constitutionally ineffective. ‚When a claim of
ineffective assistance of counsel is raised for the first time on
appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
20141155-CA 5 2016 UT App 223State v. Johnson
assistance of counsel as a matter of law.‛ State v. Beckering, 2015
UT App 53, ¶ 18, 346 P.3d 672 (brackets, citation, and internal
quotation marks omitted).
¶14 Defendant further contends that the district court erred by
admitting hearsay evidence in the form of Victim’s witness
statement. ‚In reviewing the admissibility of hearsay, legal
questions are reviewed for correctness while the ultimate ruling
on admissibility is reviewed for an abuse of discretion.‛ State v.
Burke, 2011 UT App 168, ¶ 16, 256 P.3d 1102. We review for an
abuse of discretion a district court’s decision to admit evidence
pursuant to rule 106 of the Utah Rules of Evidence. See State v.
Montgomery, 2007 UT App 24U, para. 4; see also United States v.
Lopez-Medina, 596 F.3d 716, 734–35 (10th Cir. 2010) (considering
the analogous federal rule).
¶15 Finally, Defendant contends that the cumulative effect of
the alleged errors warrants reversal. Under the cumulative error
doctrine, we apply the ‚standard of review applicable to each
underlying claim of error‛ and ‚reverse only if the cumulative
effect of multiple errors undermines our confidence that a fair
trial was had.‛ Davis, 2013 UT App 228, ¶ 16 (citations and
internal quotation marks omitted).
ANALYSIS
I. Adequacy of Jury Instructions
A. Instructions 25, 28, and 32 correctly and sufficiently stated
the law.
¶16 Defendant first contends that the district court ‚gave
inadequate and misleading instructions on burglary’s ‘intent to
commit theft’ element.‛ Specifically, he asserts that the jury
instructions ‚were insufficient and confusing because they failed
to distinguish between the general and specific intent elements
20141155-CA 6 2016 UT App 223State v. Johnson
of the offense and failed to explain that ‘intent to commit theft’
requires proof that the defendant entered/remained with the
purpose to permanently deprive.‛ Defendant concedes that the
burglary instruction ‚correctly told the jury that burglary
required proof beyond a reasonable doubt that [Defendant]
entered/remained with the ‘specific intent to commit a theft,’‛
but argues that the burglary and theft instructions, read
together, ‚did not explain that this intent encompassed both the
intent to unlawfully take and the purpose to permanently
deprive.‛
¶17 ‚We review jury instructions in their entirety to
determine whether the instructions, taken as a whole, fairly
instructed the jury about the applicable law.‛ State v. Liti, 2015
UT App 186, ¶ 12, 355 P.3d 1078. As relevant here, ‚[a]n actor is
guilty of burglary who enters or remains unlawfully in a
building . . . with intent to commit: . . . (b) theft [or] (c) an assault
on any person*.+‛ Utah Code Ann. § 76-6-202(1) (LexisNexis
2012); see also id. § 76-6-202(2) (explaining that a burglary
committed in a dwelling is a second-degree felony). Considering
burglary by theft, ‚*a+ person commits theft if he obtains or
exercises unauthorized control over the property of another with
a purpose to deprive him thereof.‛ Id. § 76-6-404. ‚‘Purpose to
deprive’ means to have the conscious object: (a) To withhold
property permanently or for so extended a period or to
use under such circumstances that a substantial portion of its
economic value, or of the use and benefit thereof, would be
lost*.+‛ Id. § 76-6-401(3).
¶18 ‚Instructions should be read in their entire context and
given meaning in accordance with the ordinary and usual
import of the language as it would be understood by lay jurors.‛
State v. Kennedy, 2015 UT App 152, ¶ 28, 354 P.3d 775 (citation
and internal quotation marks omitted). Here, the district court
instructed the jury on intent (Instruction 25), the elements of
burglary applicable to the charges against Defendant
20141155-CA 7 2016 UT App 223State v. Johnson
(Instruction 28), and definitions relevant to burglary generally
(Instruction 32). Instruction 25 described intent:
A person engages in conduct intentionally or with
intent or willfully with respect to the nature of his
conduct or to a result of his conduct, when it is his
conscious objective or desire to engage in the
conduct or cause the result.
Instruction 28 then listed the elements the jury would have to
find beyond a reasonable doubt before convicting Defendant of
burglary:
1. In Salt Lake County, State of Utah, the defendant
KEN JOHNSON;
2. Knowingly, intentionally or recklessly;
3. Entered or remained unlawfully in the dwelling
of another; and
4. With the specific intent to commit:
a. A theft; or
b. An assault on any person.[3]
Finally, Instruction 32 provided definitions relevant to
burglary:
Theft. A person commits theft if he obtains or
exercises unauthorized control over the property of
another with a purpose to deprive him thereof.
3. On appeal, Defendant does not challenge the jury instructions
as to burglary by assault. The jury acquitted Defendant on a
charge of making a violent threat, which suggests, but does not
conclusively prove, that the burglary conviction was based on a
theory of burglary by theft rather than burglary by assault.
20141155-CA 8 2016 UT App 223State v. Johnson
‚Purpose to deprive‛ means to have the conscious
object:
(a) To withhold property permanently or for
so extended a period or to use under such
circumstances that a substantial portion of
its economic value, or of the use and benefit
thereof, would be lost[.]
¶19 As explained above, Defendant claims that the jury could
have believed that, if it found the ‚specific intent to commit [a]
theft‛ element of the burglary instruction was satisfied, the
‚purpose to *permanently+ deprive‛ element of the theft
instruction was also satisfied. He asserts, ‚Consequently, the
instructions might have led the jury to believe that ‘intent to
commit theft’ could be satisfied by mere proof of the intent to
unlawfully take.‛
¶20 Defendant’s argument in this regard reverses the logical
chain of the instructions. Instruction 28 told the jury that, to
convict Defendant of burglary by theft, it had to find that he
entered or remained in the house with the ‚specific intent‛ of
committing theft. Therefore, the starting point of the jury’s
consideration of this issue must have been whether Defendant
intended to commit a theft as defined by Instruction 32.
Instruction 32 plainly informed the jury that theft required the
‚*p+urpose to *permanently+ deprive.‛ Accordingly, only if the
jury first found that Defendant had the purpose to permanently
deprive Victim of her property could it proceed to the question
of whether Defendant entered or remained with the specific
intent to carry out that purpose. When considered together, the
instructions correctly informed the jury that (1) without the
purpose to permanently deprive, there could be no theft, and (2)
without the intent to commit theft, there could be no burglary-
by-theft conviction. In other words, because the instructions
conditioned a burglary-by-theft conviction upon a finding that
Defendant had the specific intent to commit a theft (as
Defendant concedes they did), the elements of theft (including
20141155-CA 9 2016 UT App 223State v. Johnson
the purpose to permanently deprive) were necessarily part of the
jury’s consideration of the burglary instruction.
¶21 Defendant also argues that ‚the instructions failed to
adequately explain that the intent to permanently deprive had to
exist contemporaneously with the entering/remaining.‛ But
Instruction 28 explains that a burglary-by-theft conviction
required the jury to find that Defendant ‚[e]ntered or remained
unlawfully in the dwelling of another‛ ‚*w+ith the specific intent
to commit‛ a theft. And Instruction 32 defines the intent element
of theft as having ‚the conscious object . . . [t]o withhold
property permanently.‛ As explained above, Instruction 32’s
definition of ‚theft‛ logically must be read into Instruction 28’s
use of the term ‚theft.‛ See Kennedy, 2015 UT App 152, ¶ 28
(explaining that instructions are given the ordinary and usual
import of their language). Therefore, reading these instructions
‚in their entire context‛ and giving them ‚meaning in
accordance with the ordinary and usual import of the language,‛
id., the only reasonable interpretation is that a burglary-by-theft
conviction required a finding that, while entering or remaining
in the dwelling, the defendant had the conscious object of
withholding property permanently.
¶22 In a similar vein, Defendant refers us to a question sent by
the jury to the court during deliberations. That note asked, with
the jury’s emphasis, ‚Does the person need to have intent before
they enter the home to commit theft OR can intent happen after
they are in the home?‛ The court responded, without consulting
counsel,4 ‚See instruction #31[.] Intent can be formed before
4. A court is not required to consult counsel before responding to
a jury’s question by simply referring the jury back to instructions
already approved by counsel. See State v. Dozah, 2016 UT App 13,
¶ 25, 368 P.3d 863. However, such a course of action is risky
because the court’s response to a jury question may be construed
as a new instruction. See also id. ¶¶ 26, 29, 31 (vacating a
(continued<)
20141155-CA 10 2016 UT App 223State v. Johnson
entry or while remaining in the home.‛ Instruction 31, approved
by counsel, had informed the jury that ‚a person commits
Burglary if that person enters or remains unlawfully in a
dwelling or any portion of a dwelling with intent to commit a
felony or theft or to commit an assault on any person.‛ (Strikeout
in original.) Defendant complains that the response ‚failed to
explain that the requisite intent must be contemporaneous with
the entering/remaining, instead advising the jury that it can be
present at the time of the entering/remaining.‛ (Emphasis in
original.) He argues that, ‚[b]y including this non-mandatory
language, the court’s response suggested that intent could be
formed after leaving the home.‛
¶23 However, there is no likelihood that the jury shared this
interpretation of the note and response. The jury’s note
described two scenarios separated by the emphasized word
‚or.‛ This indicates that the jury understood that one of those
two scenarios must have existed before they could find that
Defendant intended to commit theft. And the court’s response
referred the jury to an instruction previously given and clarified
that either of the two scenarios would be sufficient for the jury to
reach that finding. Given the phrasing of the note and the
instructions before the jury, there is no reasonable possibility
that the jury could have interpreted the court’s response as
modifying the initial jury instructions so as to make intent to
commit theft while unlawfully entering or remaining an
optional, rather than required, finding.
(2016 UT App 223State v. Johnson
¶24 We conclude that the instructions on burglary and theft,
when considered together, fairly instructed the jury about the
applicable law and that Defendant has not shown a reasonable
likelihood that the jury misinterpreted the court’s response to the
jury’s note.
B. Instruction 33 did not fatally cloud the jury instructions.
¶25 Defendant next argues that the ‚significance of
Instruction 33 was not clear, and when considered with
Instruction 32, it suggested that intent to temporarily deprive
was sufficient to sustain a conviction.‛ Instruction 33 was
included in the court’s instructions at the request of defense
counsel. As initially proposed, the instruction first defined the
offense of wrongful appropriation and then related that
definition to Defendant’s defense theory:
A person commits wrongful appropriation if he
obtains or exercises unauthorized control over the
property of another, without the consent of the
owner or legal custodian and with intent to
temporarily appropriate, possess, or use the
property or to temporarily deprive the owner or
legal custodian of possession of the property.
Therefore, if at the time [Defendant] unlawfully
entered or remained in the building [Defendant]
took the cell phone from [Victim] but acted with
the intent to temporarily deprive her of the item,
under the law he would be acting only with the
intention to [temporarily] deprive and not to
commit a theft. In such a circumstance [Defendant]
could not be found guilty of burglary based on a
theory of theft because burglary under a theory of
theft requires that the defendant act with intent to
permanently deprive the person of the property.
An intention to temporarily deprive the person of
20141155-CA 12 2016 UT App 223State v. Johnson
the property is not sufficient to support a burglary
charge.[5]
...
If [Defendant] did not, while entering or remaining
in the building, have the intent to commit a theft or
an assault you must vote not guilty on the burglary
charge[.]
¶26 The district court did not give this instruction in full.
Specifically, it declined to include the portion explaining
Defendant’s ‚theory of the case‛ and stated that counsel would
‚have to make your own arguments‛ to the jury about the
relevance of wrongful appropriation. Accordingly, the court
gave only the first paragraph of Defendant’s proposed
instruction, defining wrongful appropriation. Defense counsel
did not seek to withdraw the shortened version of Instruction 33.
¶27 Defendant now complains that ‚Instruction 33 defined
‘wrongful appropriation’ in the abstract without relating it to the
legal principles relevant to burglary.‛ Defendant asserts that
Instruction 33 ‚did not tell the jury what really mattered:
entering/remaining with the intent to temporarily deprive is not
sufficient to satisfy burglary’s intent element.‛
¶28 ‚Jury instructions require no particular form so long as
they accurately convey the law.‛ State v. Maama, 2015 UT App
5. But see Utah Code Ann. § 76-6-404 (LexisNexis 2012)
(explaining that theft requires a ‚purpose to deprive‛); id. § 76-6-
401(3) (defining ‚‘*p+urpose to deprive’‛ as having the conscious
object to ‚withhold property permanently or for so extended a
period or to use under such circumstances that a substantial portion of
its economic value, or of the use and benefit thereof, would be lost‛
(emphasis added)).
20141155-CA 13 2016 UT App 223State v. Johnson
235, ¶ 29, 359 P.3d 1272. The fact that one instruction, considered
alone, is not as accurate as it could have been does not constitute
reversible error so long as the instructions as a whole fairly
instruct the jury on the applicable law. State v. Kennedy, 2015 UT
App 152, ¶ 32, 354 P.3d 775; State v. Lucero, 866 P.2d 1, 3 (Utah
Ct. App. 1993).
¶29 There can be no question that Instruction 33 correctly
stated the law on wrongful appropriation; as given, it recited the
wrongful appropriation statute verbatim. See Utah Code Ann.
§ 76-6-404.5(1) (LexisNexis 2012). And the law relating to
burglary was already correctly stated by Instruction 28, which
conditioned a burglary conviction on one of two intent
findings—either ‚the specific intent to commit: a. A theft; or b.
An assault on any person.‛ Given the restrictive wording of
Instruction 28, the jury could not have mistakenly read into the
instructions a third route to a burglary conviction based on the
intent to wrongfully appropriate. As a result, while the relevance
of Instruction 33 could have been more thoroughly explained,
the court did not err in giving the shortened version of
Defendant’s proposed instruction, because the jury instructions
as a whole fairly instructed the jury on the applicable law. See
Kennedy, 2015 UT App 152, ¶ 32; Lucero, 866 P.2d at 3.
¶30 Defendant also points to a second note that the jury sent
to the court during its deliberations, which asked about the
reason Instruction 33 was included at all: ‚Jury is confused about
the reason for the addition of p.33. Is there a specific reason it is
included?‛ Without consulting counsel, see supra ¶ 22 note 4, the
court responded ‚Use your collective memory of counsel’s
argument[6] and testimony to determine its significance. See
6. Defense counsel ultimately did not make an argument to the
jury that, while entering or remaining in the house, Defendant at
most possessed the intent to commit wrongful appropriation,
which would fall short of an intent to commit theft. Defendant
(continued<)
20141155-CA 14 2016 UT App 223State v. Johnson
Instruction #11.‛7 Defendant relies on State v. Couch for the
proposition that, ‚‘[w]hen a jury makes explicit its difficulties a
trial judge should clear them away with concrete accuracy.’‛ 635
P.2d 89, 94 (Utah 1981) (quoting Bollenbach v. United States, 326
U.S. 607, 612–13 (1946)). He argues that, here, the court could
only have done so by responding that ‚the intent to temporarily
deprive was insufficient to support a conviction.‛
¶31 This argument stretches Couch beyond its holding. There,
in a sexual abuse and kidnapping case, the Utah Supreme Court
held that a court’s failure to instruct the jury upon its request as
to the legal definition of the term ‚genitals,‛ when that term had
not been defined in the jury instructions given, was reversible
error. Specifically, the supreme court explained that, ‚where a
jury at its own instance requests the definition of a term whose
understanding is essential to a proper application of the law, the
trial judge must provide the requested definition.‛ Couch, 635
P.2d at 95. In contrast, the jury’s confusion here was not related
to the meaning of a term in a statute but rather to the relevance
of an instruction included at Defendant’s request. The court
responded that (1) the relevance of Instruction 33 might be
found by reviewing the arguments made by Defendant’s counsel
and (2) if the jury’s other findings made Instruction 33 irrelevant,
it could ‚disregard that instruction.‛ Accordingly, by reminding
(2016 UT App 223State v. Johnson
the jury that irrelevant instructions should be disregarded, the
court cleared away ‚with concrete accuracy‛ the jury’s confusion
regarding the inclusion of an instruction whose relevance was
suspect. Moreover, nothing in the note or response can plausibly
be read as setting aside or loosening the restrictions of
Instructions 25 and 32. As noted, those instructions correctly
stated the law, see supra ¶¶ 24, 29; see infra ¶ 32, and Defendant
was not ‚entitled to further instruction regarding the defense’s
theory of the case when the other instructions already fairly
instruct*ed+ the jury on the law applicable to that theory,‛ see
Kennedy, 2015 UT App 152, ¶ 32; Lucero, 866 P.2d at 3.
¶32 We conclude that Instruction 33 did not cloud the
meaning of the instructions given to the jury, particularly in light
of the district court’s response, which reminded the jury that not
every instruction was necessarily relevant.
II. Admission of Voicemail Evidence
¶33 Defendant contends that the district court ‚violated
evidence rule 403 by admitting an unfairly prejudicial recording
of a message that *Defendant+ left on *Victim’s+ voicemail about
a week after the alleged offense.‛
¶34 The State sought admission of the entire recording, which
was almost four minutes long. Defendant objected to the
admission of the whole recording, arguing that it was unfairly
prejudicial because it contained obscenities, but conceded that a
4-second portion, in which he stated ‚arrest me for breaking and
entering [or] whatever the fuck they think,‛ was admissible. He
also offered to stipulate that he had kicked in Victim’s door and
forcibly entered the house. Nevertheless, the State sought
admission of the recording, and the district court ruled that it
would admit into evidence the 4-second portion ‚where he
discusses coming into the house.‛ The State explained that it
would be difficult to cue the recording to that exact point. The
court ended up admitting and playing a 41-second clip for the
20141155-CA 16 2016 UT App 223State v. Johnson
jury, which included the 4-second portion. The 41-second clip
was generally unintelligible but included fragmentary
statements such as ‚there’s nothing I owe you,‛ ‚you’re fucking
me,‛ and ‚[you’re] stealing my house from me.‛ Defendant
moved for a mistrial on the ground that the State had played
more than the 4-second portion and had exposed the jury to
Defendant’s use of the words ‚fuck‛ and ‚fucking.‛ The court
denied the motion after deciding that a mistrial was not
warranted merely ‚because the f-word might have been heard
along with *Defendant’s+ statements about kicking the door in.‛
¶35 The district court ‚may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one
or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.‛ Utah R. Evid. 403. ‚[U]nfair
prejudice results only where the evidence has an undue
tendency to suggest decision upon an improper basis.‛ State v.
Lucero, 2014 UT 15, ¶ 32, 328 P.3d 841 (citation and internal
quotation marks omitted). Consequently, there is a
‚presumption in favor of admissibility.‛ Id. (citation and internal
quotation marks omitted).
¶36 Defendant asserts that the recording was substantially
more prejudicial than probative. According to him, the probative
value was low because he had stipulated that he had broken into
the house and because he later testified to that effect. And on the
other side of the equation, Defendant claims that the danger of
unfair prejudice was high due to his use of obscenities and the
fact that his statements were ‚directed against *Victim+,
exhibited extreme animosity and the jury could have believed
that [Defendant] was indifferent to the impact of his unlawful
entry upon her.‛ (Citation and internal quotation marks
omitted.)
¶37 We agree with the State that the recording had
‚substantial probative value‛ beyond Defendant’s stipulation
20141155-CA 17 2016 UT App 223State v. Johnson
that he had broken into the house. The recording was relevant to
show why Defendant broke into Victim’s house, as well as his
general state of mind toward Victim and her property, albeit a
week after the event. Cf. Utah R. Evid. 401 (explaining that
evidence is relevant if it has any tendency to make a fact that is
of consequence to the action more or less probable than it would
be without the evidence). Defendant’s apparent animosity to
Victim, as revealed by his demeanor and use of obscenities in the
recording, was therefore probative to central issues in both the
assault and theft theories of burglary with which he was
charged. Furthermore, stipulating to a fact does not cut off the
State’s right to present evidence depicting the context of that
fact. See State v. Verde, 2012 UT 60, ¶ 28, 296 P.3d 673 (explaining
that the State ‚retains wide discretion to reject‛ a defendant’s
offer to stipulate in lieu of presenting evidence to a jury ‚to
preserve the right to present evidence with broad ‘narrative
value’ beyond the establishment of particular elements of a
crime‛); see also Old Chief v. United States, 519 U.S. 172, 189 (1997)
(‚People who hear a story interrupted by gaps of abstraction
may be puzzled at the missing chapters, and jurors asked to rest
a momentous decision on the story’s truth can feel put upon at
being asked to take responsibility knowing that more could be
said than they have heard.‛).
¶38 Turning to prejudice, the Utah Supreme Court has
emphasized that ‚the probative value of the evidence must be
substantially outweighed by the danger of unfair prejudice.‛
Lucero, 2014 UT 15, ¶ 32 (emphasis in original) (citation and
internal quotation marks omitted). Defendant asserts that his use
of ‚coarse language could have caused the jury to convict based
on a generalized assessment of character rather than the
evidence.‛ (Internal quotation marks omitted) (Citing State v.
Maurer, 770 P.2d 981, 985–87 (Utah 1989)). In Maurer, the
defendant wrote a letter to his victim’s father in which he
graphically described her cries during her murder and referred
to her using a coarse slur. Maurer, 770 P.2d at 982. That letter was
20141155-CA 18 2016 UT App 223State v. Johnson
introduced into evidence; on appeal, the Utah Supreme Court
reversed the defendant’s conviction because the letter ‚could
have provoked an emotional response from the jury and
provoked its instinct to punish or otherwise divert[ed] the jury
from its task.‛ Id. at 987. Defendant relies on State v. Alzaga for
the proposition that the ‚core concern‛ identified by Maurer in
an unfair prejudice analysis is ‚what the defendant’s words
revealed about his character.‛ But in Alzaga, this court noted that
‚the core concern with the letter in Maurer was not so much the
letter’s language but what it revealed about the defendant’s
character: he wrote it to inflict additional emotional pain upon
the victim’s father, literally to add insult to injury.‛ State v.
Alzaga, 2015 UT App 133, ¶ 51, 352 P.3d 107 (emphasis added).
Here, the import of the voicemail message was not that it was
calculated to insult Victim or inflict emotional pain but rather
that it showed Defendant’s state of mind and cast light on the
likelihood that he might have tried to assault Victim or to steal
from her. And to the extent that Defendant worries that the jury
might have convicted him for using coarse language, we note
that such words ‚have lost much of their shock value in
contemporary culture.‛ See id. (affirming a district court’s
decision to admit into evidence a recording of a telephone call,
between the defendant and his girlfriend, in which the
defendant referred to his murder victim using several
obscenities).
¶39 Defendant has not convinced us that the district court
abused its discretion by deciding that the probative value of the
41-second recording was not substantially outweighed by the
danger of unfair prejudice. Accordingly, we affirm the district
court’s resulting denial of Defendant’s motion for a mistrial.
III. Jury Contact
¶40 Defendant next contends that there was improper contact
between the judge and the jury as well as between the bailiff and
the jury. Specifically, he asserts that the judge ‚engaged in an
20141155-CA 19 2016 UT App 223State v. Johnson
off-the-record conversation with the jury, without counsel
present, about matters directly related to trial.‛ He further
asserts that the court ‚allowed the bailiff to remain in the jury
room during deliberations.‛ According to Defendant, these
events create a ‚rebuttable presumption of prejudice that was
not rebutted below.‛
¶41 Because defense counsel acquiesced to both contacts and
did not object to them even after they occurred, we turn to
Defendant’s argument that defense counsel’s assistance was
constitutionally ineffective. To establish ineffective assistance of
counsel, a defendant must demonstrate that defense counsel’s
performance was deficient and that the deficient performance
prejudiced the defense. Burke v. State, 2015 UT App 1, ¶ 16, 342
P.3d 299 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
‚Because both deficient performance and prejudice are requisite
elements of a claim of ineffective assistance of counsel, failure to
prove either element necessarily defeats the claim.‛ State v.
Garcia, 2016 UT App 59, ¶ 29, 370 P.3d 970. Defense counsel’s
performance is not deficient so long as there is a conceivable
tactical basis for counsel’s action or inaction. Id.; State v. King,
2010 UT App 396, ¶ 31, 248 P.3d 984 (‚*B+efore we will reverse a
conviction based on ineffective assistance of counsel, we must be
persuaded that there was a lack of any conceivable tactical basis
for counsel’s actions.‛ (citation and internal quotation marks
omitted)).
A. The judge–jury contact did not address substantive trial
matters.
¶42 Defendant states that the judge’s ‚improper contact‛ with
the jury ‚surfaced after-the-fact when the judge returned from a
recess,‛ and she explained what she had talked to the jury about:
I went in and told the jury that it had been longer
than a 15 [minute] break because we were copying
all the jury instructions and putting in the ones that
20141155-CA 20 2016 UT App 223State v. Johnson
you had all brought this morning that I had given
you the opportunity to bring and the State was
deciding whether to do rebuttal and all that and
they said, ‚Well, when we get this case are we
going to be able to listen to the tapes? Is there a
transcript of the tapes?‛ So I said there’s no
transcripts of the tapes, we will discuss whether
you get to hear the tapes.
However, immediately before going to speak to the jury, and
recorded on the same page of the transcript, the judge had
announced to counsel that ‚I’m going to tell the jury that we’re
working on all this, that there’s no rebuttal. That we’re going to
be copying jury instructions so it may take a few minutes more
than 15 so they don’t blame it on you.‛ Defense counsel
responded, ‚Okay.‛ Thus, defense counsel did not object to the
judge–jury contact either when the judge announced her intent
to talk to the jury or when the judge reported on the contents of
that discussion.
¶43 With regard to judge–jury contact, the Utah Supreme
Court has stated that ‚it may be appropriate to presume
prejudice in some instances, such as where the judge discusses
substantive matters with jurors.‛ State v. Maestas, 2012 UT 46,
¶ 70, 299 P.3d 892. This is because, ‚*i+n such cases, the judge’s
communication may have influenced the jury in unknown ways
that could potentially affect the outcome of the case.‛ Id. But in
Maestas, the supreme court declined to presume prejudice
because ‚the interaction was brief and dealt with the timing of
the jury’s dismissal for the day.‛ Id. ‚Further, to the extent that
this communication could be considered related to some aspect
of the trial, the judge appropriately disclosed the communication
and neither [the defendant] nor his counsel objected to the
interaction.‛ Id. (internal quotation marks omitted).
¶44 Here, Defendant asserts, ‚The judge’s off-the-record
conversation with the jury involved ‘substantive matters,’ not
20141155-CA 21 2016 UT App 223State v. Johnson
mere trial logistics . . . .‛ But the matters the judge talked to the
jury about were exactly trial logistics. The judge explained to the
jury why the break was longer than planned and that the State
had not decided whether to offer rebuttal, and she responded to
a jury question about what exhibits they would have access to by
telling them that the judge and counsel had not yet decided that
issue. See, e.g., Maestas, 2012 UT 46, ¶ 70 n.62 (giving as an
example of discussing substantive matters with jurors a case
where the foreman of a deadlocked jury discussed the jury’s
deadlock with the judge and ‚carried away from the meeting an
impression that the judge wanted a verdict one way or the
other‛ (citation and internal quotation marks omitted)). The term
‚substantive‛ refers to the merits or outcome of a legal claim or
case, as opposed to timing or procedural matters. See, e.g., id.;
Beehive Tel. Co. v. Public Service Comm’n, 2004 UT 18, ¶ 30, 89 P.3d
131; Allen v. Friel, 2008 UT 56, ¶¶ 23–24, 194 P.3d 903. And the
judge here did not discuss the merits of the issues or the case
with the jury.
¶45 Defendant argues that ‚the discussion concerning the
State’s decision whether to do rebuttal—coupled with the fact
that the State did not put on a rebuttal—conveyed the
impression that the State’s case was a ‘slam dunk’ and the
defense was weak and not worthy of a rebuttal.‛ But the ‚slam
dunk‛ danger Defendant highlights could only have arisen if the
judge had informed the jury that the State would not be
presenting rebuttal, rather than simply explaining that the State
had not yet decided whether it would. And even if the judge had
so informed the jury, identifying possible prejudice would be
difficult where there is no indication that the judge expressed
any opinion as to whether it was a wise decision. Moreover, the
fact that the State ultimately did not present a rebuttal argument
spoke volumes more to the jury than the judge’s earlier comment
that the State was still deciding whether or not to do so.
¶46 Defendant also argues that the judge–jury contact ‚could
have ‘bre*d+ a sense of familiarity’ with the judge‛ as evidenced
20141155-CA 22 2016 UT App 223State v. Johnson
‚from the various notes the jury sent to the court during
deliberations.‛ (Alteration in original) (Citing State v. Pike, 712
P.2d 277, 281 (Utah 1985)). However, juries often send notes to
judges seeking clarification of their instructions and conveying
their logistical concerns; we cannot presume that whenever this
occurs, the jury has an improper sense of familiarity with the
judge. See Rushen v. Spain, 464 U.S. 114, 118 (1983) (‚There is
scarcely a lengthy trial in which one or more jurors do not have
occasion to speak to the trial judge about something, whether it
relates to a matter of personal comfort or to some aspect of the
trial.‛). Moreover, in Pike, the Utah Supreme Court expressed
discomfort at the potential for ‚breeding a sense of familiarity‛
when jurors and ‚an important prosecution witness,‛ who was
also the arresting officer, engaged in conversation during a
recess. Pike, 712 P.2d at 280–81. Because a jury must evaluate the
credibility of witnesses during deliberations, a sense of
familiarity with a particular witness is ‚sufficient to warrant a
presumption of prejudice.‛ Id. at 281. But because a jury’s charge
does not encompass evaluating the credibility of the judge, the
likelihood of the dangers posed by a sense of a familiarity with
the judge, should one arise, is much less clear. Thus, the Pike
standard for presuming prejudice on the basis of possible
familiarity between witnesses and juries has little bearing here.8
¶47 Defendant further argues that the judge’s use of the
phrase ‚and all that‛ ‚demonstrates that the conversation
encompassed more than an incidental conversation related to
scheduling.‛ We cannot divine such detail from an everyday
informalism and therefore reject this argument without further
discussion.
8. We reiterate that the best practice for a court is to minimize
any contact or communication between the judge and the jury
outside the presence of counsel. See supra ¶ 22 note 4.
20141155-CA 23 2016 UT App 223State v. Johnson
¶48 We do not agree with Defendant’s assertion that the
judge–jury contact encompassed substantive matters.
Accordingly, no presumption of prejudice arose. Defense
counsel did not perform deficiently by agreeing to the contact,
especially in light of its purpose—to ensure that the jury did not
blame counsel for the delay. And because substantive matters
were not discussed, defense counsel did not perform deficiently
by failing to raise an objection when the judge reported back.
B. The bailiff–jury contact did not create a presumption of
prejudice.
¶49 Defendant claims that the ‚bailiff’s contact with the jury
also raises a presumption of prejudice that cannot be rebutted.‛
Specifically, he notes that the court asked the prosecutor to show
the bailiff how to play the 911 call and voicemail recordings and
that the court stated ‚probably just the bailiff will go in.‛
Defense counsel did not object. Defendant asserts that the
‚bailiff’s contact with the jury was more than incidental because
the record reveals that the bailiff was present while the jury
actually deliberated.‛9
¶50 Defendant points us to State v. Jonas, 793 P.2d 902 (Utah
Ct. App. 1990), in which this court addressed a somewhat
similar situation. There, after the close of evidence but before the
jury was instructed and before closing arguments, a juror was
excused from the panel. Id. at 907. The juror asked the bailiff to
9. Despite Defendant’s assertion, the record on appeal does not
reveal whether the bailiff remained in the room during the
playing of the recordings. Nor does it reveal whether the jury
discussed the case during the playing of the recordings. Given
the short length of the recordings, as well as the need to prevent
the jury from hearing unadmitted portions, we will assume
arguendo that the bailiff remained in the room while the
recordings were played.
20141155-CA 24 2016 UT App 223State v. Johnson
explain his absence to the remaining jurors, which the bailiff did.
Id. The defendant appealed on the ground of improper bailiff–
jury contact. Id. at 903. This court determined that no
presumption of prejudice arose, because the bailiff ‚did not
mingle with the jurors or converse with them about the trial
itself; nor did he interrupt their deliberations.‛ Id. at 909.
Defendant contrasts the instant case, asserting that ‚this is not a
case where the bailiff simply entered the deliberation room,
performed the ministerial task of cuing up the audiotape, and
exited.‛ (Citation and internal quotation marks omitted.) But see
supra ¶ 49 note 9.
¶51 We find United States v. Freeman instructive. See 634 F.2d
1267 (10th Cir. 1980). In Freeman, the Tenth Circuit Court of
Appeals reversed a defendant’s conviction after an FBI agent
was allowed into the jury room to ‚operate the sound
equipment‛ necessary to replay certain recordings previously
admitted into evidence. Id. at 1269–70. That decision turned on
the fact that the FBI agent was an adversary because his
investigation had led to the prosecution of the defendant. Id. at
1268–69; see also id. at 1269 (‚*A+ccess to the jury during its
deliberative process by any adversary simply cannot be
tolerated.‛ (citation and internal quotation marks omitted)). But
see United States v. Florea, 541 F.2d 568, 571–72 (6th Cir. 1976)
(holding that the presence of an adversary party performing a
similar function in the jury room was harmless error because he
‚was never alone with the jury and was in its presence only long
enough to replay the tapes‛).
¶52 Here, there is no evidence that the bailiff remained in the
jury room after playing and stopping the recordings. Nor is there
any evidence that the bailiff mingled with the jurors, conversed
with them about the trial, or interrupted their discussions. And a
bailiff, unlike an FBI agent, is a member of the court’s personnel
and not an adversary party in the proceeding. For these reasons,
20141155-CA 25 2016 UT App 223State v. Johnson
we will not presume prejudice.10 Defense counsel thus did not
perform deficiently by acquiescing to the plan of having the
bailiff play the recordings for the jury.11
¶53 Because defense counsel did not perform deficiently with
regard to either the judge–jury contact or the bailiff–jury contact,
we conclude that there was no reversible error.
IV. Admission of Hearsay Evidence
¶54 Defendant next contends that the district court
inappropriately admitted Victim’s written witness statement
into evidence. Specifically, Defendant argues that the witness
statement was hearsay and was not a prior consistent statement,
because it was written after Victim had formed the motive to
fabricate her allegations against Defendant. Defendant further
argues that the rule of completeness did not apply to allow the
admission of hearsay, because no portion of the witness
statement had previously been entered into evidence.
¶55 During Victim’s testimony, the State sought to enter into
evidence the written witness statement Victim gave to police on
the day of the incident. Defense counsel objected on hearsay
grounds, but the court overruled the objection after determining
that rule 801(d)(1)(A) of the Utah Rules of Evidence applied. See
generally Utah R. Evid. 801(d)(1)(A) (providing that a statement
is not hearsay if it ‚is inconsistent with the declarant’s testimony
10. We note that an automatic presumption of prejudice in such
circumstances would hinder the ability of court personnel to
assist juries with technical matters.
11. Indeed, he likely had a tactical reason for accepting the plan;
if the jurors had simply been given the recordings, they might
have listened to the portions defense counsel had succeeded in
excluding from evidence.
20141155-CA 26 2016 UT App 223State v. Johnson
or the declarant denies having made the statement or has
forgotten‛). The witness statement was then published to the
jury. However, after a recess, the district court realized it had
misread rule 801(d)(1)(A) as requiring consistency rather than
inconsistency and therefore reversed itself. Accordingly, the
district court retracted the written statement from the jury but
declined to declare a mistrial because the jury only had the
statement ‚for two minutes.‛
¶56 While cross-examining Victim, defense counsel asked her
several times about the written statement in an attempt to
impeach Victim’s credibility by highlighting discrepancies
between Victim’s direct examination testimony and the
statement she gave on the day of the incident. For example, after
Victim testified that Defendant had ‚grabbed‛ her, defense
counsel asked, ‚[I]sn’t it true that there’s not one word in your
report about him grabbing you?‛ After Victim stated that she
could not recall, defense counsel refreshed her memory by
showing her the written statement and asked, ‚[I]sn’t it true that
the word grab, grabbing, grabbed, none of those words appear
in that statement . . . ?‛ Defense counsel then got Victim to agree
that the police detective had instructed her to ‚write down what
happened‛ and to ‚tell him everything.‛ Similarly, after Victim
testified that Defendant had ‚throw*n+ punches in the air
towards my face, like he was going to punch me but stopped,‛
defense counsel asked her, ‚And that doesn’t appear anywhere
in your report there either, does it?‛ Victim admitted it did not,
explaining that she had not remembered that portion of the
incident until later.
¶57 After Victim was excused from the witness stand, the
State again sought to have the written statement admitted into
evidence. The court admitted it into evidence pursuant to rule
801(d)(1)(B). See Utah R. Evid. 801(d)(1)(B) (providing that a
statement is not hearsay if it ‚is consistent with the declarant’s
testimony and is offered to rebut an express or implied charge
that the declarant recently fabricated it or acted from a recent
20141155-CA 27 2016 UT App 223State v. Johnson
improper influence or motive in so testifying‛). Defense counsel
objected that only the portions of the statement that were
consistent with the challenged elements of Victim’s testimony
were admissible under that rule. Then the court admitted the
entire written statement into evidence because defense counsel
had ‚referred too much to the statement‛ and could not ‚keep
pulling bits and piece*s+ of it out and expect that it’s not going to
go into evidence.‛ See Utah R. Evid. 106. The court also
expressed concern that the cross-examination had taken ‚a
bunch of stuff out of context.‛
¶58 Victim’s witness statement was then introduced into
evidence as an exhibit:
My ex husband came to my home drunk. I did not
want to answer the door. He started kicking the
back door. I grab[b]ed my phone and was yelling
at him to leave. He broke the door in. I called 911
and he took my phone and would not give it back.
He was still yelling at me telling me I owe him
money and I will not get it back. We got to the
front door and I was still trying to get my phone
back to call 911. He pushed me and said he should
just push me down the stairs. He got in his truck
and I ran to [my] neighbors house.
¶59 The basis for applying rule 106 here was not that elements
of the witness statement were admissible pursuant to rule
801(d)(1)(B). Rather, the beachhead was defense counsel’s
extensive reliance on portions of the witness statement to
impeach Victim’s credibility. Thus, regardless of whether the
witness statement properly fell within the ambit of rule
801(d)(1)(B), the question before us is whether the district court
20141155-CA 28 2016 UT App 223State v. Johnson
abused its discretion in determining that rule 106 required the
admission of the remainder of the witness statement.12
¶60 Rule 106 of the Utah Rules of Evidence provides, ‚If a
party introduces all or part of a writing or recorded statement,
an adverse party may require the introduction, at that time, of
any other part—or any other writing or recorded statement—
that in fairness ought to be considered at the same time.‛ This
rule is often referred to as the rule of completeness, and is
designed ‚to prevent a misleading impression created by taking
12. ‚At least seven circuits have held . . . that if a remainder
[portion of a statement] passes the fairness test, no other rule of
evidence should exclude it from being entered under Rule 106.‛
Michael A. Hardin, This Space Intentionally Left Blank: What To Do
When Hearsay and Rule 106 Completeness Collide, 82 Fordham L.
Rev. 1283, 1308 (2013) (considering the federal rule of evidence
analogous to rule 106). ‚These *circuits are+ the D.C., First,
Second, Third, Fourth, Seventh, and Tenth Circuits.‛ Id. Hardin
goes on to point out that of the five circuits that have appeared
to hold that the rule of completeness does not trump other
restrictions on the admissibility of evidence, at least four have
done so only in dicta. Id. at 1312 (‚A particular pattern emerges
in these cases. Courts of this view often state that Rule 106
cannot render inadmissible remainders admissible, but then go
on to find other reasons not to admit the remainder*.+‛).
Moreover, ‚*t+he Supreme Court *has+ ducked this issue by
holding that whether or not it was usable under Rule 106 [of the
Federal Rules of Evidence], a party could introduce the
remainder of a truncated letter as part of his own case under the
common law completeness doctrine.‛ 21A Charles Alan Wright
& Kenneth W. Graham, Jr., Federal Practice and Procedure
§ 5078.1 (2d ed. 2016) (citing Beech Aircraft Corp. v. Rainey, 488
U.S. 153, 170–73 (1988)). See also State v. Sanchez, 2016 UT App
189, ¶ 24 n. 4 (collecting cases).
20141155-CA 29 2016 UT App 223State v. Johnson
matters out of context.‛ See State v. Jones, 2015 UT 19, ¶ 40, 345
P.3d 1195 (citation and internal quotation marks omitted). ‚The
rule establishes a fairness standard that requires admission of
those things that are relevant and necessary to qualify, explain,
or place into context the portion already introduced.‛ Id.(citation and internal quotation marks omitted). We therefore
consider whether rule 106’s fairness standard required the
admission of the entirety of Victim’s witness statement.
¶61 Defendant asserts that the written statement is not
admissible in its entirety even in light of rule 106. He argues that
rule 106 only renders admissible those portions of the written
statement that were directly relevant to the precise items of
testimony impeached by defense counsel’s cross-examination.
¶62 The State responds that ‚*f+airness required admission of
*Victim’s+ entire witness statement.‛ The State explains that the
thrust of defense counsel’s cross-examination was to suggest that
Victim’s ‚entire testimony was unreliable because she could not
accurately report the events‛ and to suggest ‚that she was
embellishing her testimony with events that did not happen
because her witness statement alone did not fully support
Defendant’s charges.‛ (Emphasis added.) According to the State,
in light of defense counsel’s attempts to impeach Victim’s overall
credibility, the only way to ‚rebut these suggestions‛ was to let
the jury ‚see exactly how *Victim+ had described the events in
her written statement.‛
¶63 We agree with the State. The intent behind rule 106 is ‚to
prevent a misleading impression,‛ not simply to correct a specific
misleading instance. See Jones, 2015 UT 19, ¶ 40 (emphasis
added) (citation and internal quotation marks omitted).
Applying rule 106’s fairness standard here required allowing the
State to introduce enough of the written statement to not only
counter defense counsel’s tactical attacks on specific elements of
Victim’s testimony but also to fairly respond to his strategic aim
of impeaching Victim’s credibility generally.
20141155-CA 30 2016 UT App 223State v. Johnson
¶64 We conclude that the district court did not abuse its
discretion when it determined that rule 106’s fairness standard
required admission of the entirety of Victim’s written witness
statement. See id. (‚The rule establishes a fairness standard that
requires admission of those things that are relevant and
necessary to qualify, explain, or place into context the portion
already introduced.‛ (citation and internal quotation marks
omitted)).
V. Cumulative Error
¶65 Defendant contends that the cumulative error doctrine
requires reversal here due to the aggregated prejudicial effects of
the errors alleged. ‚Under the cumulative error doctrine, we will
reverse only if the cumulative effect of the several errors
undermines our confidence that a fair trial was had.‛ State v.
Davis, 2013 UT App 228, ¶ 106, 311 P.3d 538 (citation and
internal quotation marks omitted). We have determined that the
district court did not err or abuse its discretion with regard to
the claims in Parts I, II, and IV.13 We have also determined that
no presumption of prejudice arose with regard to the improper
jury contact claims in Part III, and that defense counsel did not
perform deficiently with respect to those claims. Accordingly,
there are not multiple instances of prejudice to cumulate, and
Defendant’s cumulative error claim necessarily fails. See State v.
Glasscock, 2014 UT App 221, ¶ 34, 336 P.3d 46.
13. Given our resolution of each of these contentions on its
merits, we need not and do not address the parties’ subsidiary
arguments as to whether those contentions were preserved or
whether an exception to the preservation requirement applies.
20141155-CA 31 2016 UT App 223State v. Johnson
CONCLUSION
¶66 The jury instructions given by the district court were
neither inadequate nor misleading, when considered in their
entirety. The district court did not abuse its discretion by
admitting the voicemail recording, because the recording was
not substantially more prejudicial than probative. Defense
counsel did not perform deficiently with regard to the contacts
between the judge and the jury and between the bailiff and the
jury. The district court also did not abuse its discretion in
determining that Utah Rule of Evidence 106 required the
admission of the entirety of Victim’s written witness statement.
And the cumulative error doctrine has no application in the
absence of error, abuse of discretion, or ineffective assistance of
counsel.
¶67 Affirmed.
20141155-CA 32 2016 UT App 223