State v. Barner ( 2020 )

2020 UT App 68THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
BRETT NICHOLAS BARNER,
Appellant.
Opinion
No. 20180534-CA
Filed April 23, 2020
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 171912692
Andrea J. Garland, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.
HAGEN, Judge:
¶1 Brett Nicholas Barner was convicted of robbery after he
stole a case of beer from a 7-Eleven and hit the store clerk
with his car while fleeing the parking lot. He now appeals,
alleging that the district court erred by excluding a detective’s
testimony and report opining that video surveillance footage did
not show that Barner intentionally hit the clerk. He further
alleges that the district court erred in denying his motion for a
directed verdict. We conclude that the district court properly
excluded the detective’s report and testimony under rule 701 of
the Utah Rules of Evidence and, regardless, the exclusion did not
harm Barner. We further conclude that the district court
correctly denied Barner’s motion for a directed verdict.
Therefore, we affirm.
State v. Barner
BACKGROUND 1
¶2 On June 18, 2017, Barner entered a 7-Eleven convenience
store, grabbed an 18-pack of beer, and left without paying. The
7-Eleven clerk working at the time noticed Barner leaving and
ran after him. When Barner got in his car, the clerk stood in front
of it. Barner then drove away and hit the clerk with his car as he
exited the parking lot. Fortunately, the clerk was not injured
during this encounter.
¶3 A Salt Lake City Police detective followed up at the scene
after the clerk called 911. After reviewing the store’s surveillance
footage and interviewing the clerk, the detective drafted a report
stating, “The surveillance footage does not show that the
suspect intentionally hit the clerk, but the clerk is seen running
up to the suspect’s vehicle. No injuries were reported by the
clerk.” Soon thereafter, Barner was arrested and charged with
aggravated robbery.
¶4 Prior to trial, the State moved to exclude the report and
any testimony from the detective. The district court granted that
motion. Although the court acknowledged that the report was
admissible under the business records exception to the rule
against hearsay, it found that the detective’s statement in the
report, as well as the detective’s testimony as to what the
surveillance video showed, was inadmissible under the lay
witness requirements of rule 701 of the Utah Rules of Evidence
because it would be unhelpful to the jury.2
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.”
State v. Ramirez, 2019 UT App 196, n.2, 455 P.3d 1082 (cleaned
up).
2. The court also ruled that the evidence would be inadmissible
under the best evidence rule articulated in rule 1002 of the Utah
(continued…)
20180534-CA 2 2020 UT App 68State v. Barner
¶5 At trial, the clerk testified for the State. He testified that
once he noticed Barner leaving the store without paying, he ran
after him and saw Barner get in his car. The clerk explained that
he approached the car, yelled at Barner, and made eye contact
with him before Barner accelerated, grazing the clerk’s legs with
the car as he drove off. When defense counsel asked whether it
was “possible that as opposed to trying to hit [him], [Barner was]
just trying to drive off,” the clerk answered, “yes.” In addition to
the clerk’s testimony, surveillance footage of the incident was
shown to the jury.
¶6 Barner moved for a directed verdict at the close of the
State’s case, arguing that the aggravated robbery charge should
be dismissed because the State had failed to present sufficient
evidence to show that Barner had knowingly or intentionally
used force or fear of immediate force against the clerk. The
district court denied the motion.
¶7 At the parties’ request, the court instructed the jury on
aggravated robbery as well as lesser included offenses. The jury
ultimately acquitted Barner of the aggravated robbery charge
and convicted him of the lesser included offense of robbery.
Barner now appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 Barner first argues that the district court abused its
discretion when it excluded the detective’s report and testimony
as to what the surveillance video showed. “The appropriate
standard of review for a district court’s decision to admit or
exclude evidence is abuse of discretion.” State v. Lane, 2019 UT
App 86, ¶ 14, 444 P.3d 553 (cleaned up). However, we “review
(…continued)
Rules of Evidence. But because we ultimately affirm on the basis
of rule 701, we do not reach the court’s alternative ruling.
20180534-CA 3 2020 UT App 68State v. Barner
the legal questions underlying the admissibility of evidence for
correctness.” Rocky Mountain Power Inc. v. Marriott, 2018 UT App
221, ¶ 18, 437 P.3d 653 (cleaned up).
¶9 Barner further argues that the district court erred in
denying Barner’s motion for a directed verdict on the aggravated
robbery count. 3 “We review the [district] court’s denial of a
motion for directed verdict for correctness.” State v. Moody, 2012
UT App 297, ¶ 5, 288 P.3d 1092. However, because Barner
“challenges the denial of a motion for a directed verdict based on
the sufficiency of the evidence, the applicable standard of review
is highly deferential.” State v. Hawkins, 2016 UT App 9, ¶ 32, 366
P.3d 884 (cleaned up). We will uphold the district court’s denial
“if, when viewed in the light most favorable to the State, some
evidence exists from which a reasonable jury could find that the
elements of the crime have been proven beyond a reasonable
doubt.” Id. (cleaned up).
ANALYSIS
I. Exclusion of the Detective’s Report and Testimony
¶10 Barner takes issue with the district court’s exclusion of the
detective’s report and testimony at trial. Barner argues that the
3. Although Barner moved for a directed verdict only on
aggravated robbery, the court necessarily considered whether
the elements of robbery were satisfied when deciding the
motion, including whether there was a threat of immediate force.
The elements of robbery are incorporated into the crime of
aggravated robbery. See Utah Code Ann. § 76-6-302 (LexisNexis
2017) (“A person commits aggravated robbery if in the course of
committing robbery he: (a) uses or threatens to use a dangerous
weapon . . . ; (b) causes serious bodily injury upon another; or (c)
takes or attempts to take an operable motor vehicle.” (emphasis
added)).
20180534-CA 4 2020 UT App 68State v. Barner
detective’s report was admissible under rule 803(6) of the Utah
Rules of Evidence, which excepts “records of a regularly
conducted activity,” or business records, from the rule against
hearsay. Barner relies on State v. Bertul, 664 P.2d 1181 (Utah
1983), in which our supreme court applied rule 803(6) in the
context of police reports. The court determined that while police
reports are typically inadmissible when offered as business
records by the prosecution, they should “ordinarily be admitted
when offered by the defendant in a criminal case to support his
defense.” Id. at 1185. Barner contends that Bertul controls and
that the district court abused its discretion in excluding the
detective’s report offered by Barner to support his defense.
¶11 However, Bertul did not hold that all police reports
offered by a criminal defendant are admissible; it held only that
a defendant may rely on the business record exception under
rule 803(6) to defeat a hearsay objection. Id. at 1183–86. The
evidence is still subject to other rules of evidence governing
admissibility.
¶12 Here, the district court agreed with Barner that, under
Bertul, the detective’s report fell within the business records
exception to the hearsay rule. The court did not exclude the
evidence as hearsay, but as impermissible opinion testimony
under rule 701(b) of the Utah Rules of Evidence.
¶13 Rule 701 states that testimony by a lay witness “in the
form of an opinion is limited to one that is . . . rationally based
on the witness’s perception; helpful to clearly understanding the
witness’s testimony or to determining a fact in issue; and not
based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.” Utah R. Evid. 701. The decision of
whether lay testimony would be “helpful to the jury rests almost
altogether in the judicial discretion of the trial judge.” In re Estate
of Kesler, 702 P.2d 86, 94 (Utah 1985) (cleaned up).
¶14 The district court ruled that the detective’s opinion as to
what the surveillance video showed would not be “helpful to the
20180534-CA 5 2020 UT App 68State v. Barner
trier of fact.” The court’s reasoning focused on the fact that the
detective based his conclusion solely on viewing the same
surveillance video that would be shown to the jury. The
detective’s report purported to describe only what the
surveillance video does not show, stating that “[t]he surveillance
footage does not show that the suspect intentionally hit the
clerk.” The jury could just as easily observe what the video does
or does not show without the aid of the detective’s testimony.
Importantly, the detective did not witness the incident firsthand,
did not have access to a higher resolution copy of the video, and
did not have any unique insight into what the video showed.
Because the jury had the same opportunity to watch the video
and draw its own conclusions about what was depicted, the
court acted within its discretion in concluding that the
detective’s opinion would not be helpful to the jury.
¶15 Moreover, Barner cannot show a reasonable probability of
a different result had the evidence been admitted. “An erroneous
decision to admit or exclude evidence does not constitute
reversible error unless the error is harmful.” Jenson v. IHC Hosps.,
Inc., 2003 UT 51, ¶ 100, 82 P.3d 1076 (cleaned up). 4 And an “error
4. Barner argues that the exclusion of the evidence merits
reversal unless it is harmless beyond a reasonable doubt because
it violated his constitutional right to present a complete defense.
See State v. McCallie, 2016 UT App 4, ¶ 12, 369 P.3d 103 (“If we
determine the trial court erred, and the error results in the
deprivation of a constitutional right, we apply a higher standard
of scrutiny, reversing the conviction unless we find the error
harmless beyond a reasonable doubt.” (cleaned up)). But not
every ruling excluding evidence offered by the defense rises to
the level of a constitutional violation. A “defendant’s right to
present relevant evidence is . . . subject to reasonable
restrictions.” United States v. Scheffer, 523 U.S. 303, 308 (1998). It is
not enough for a defendant to show that the operative rule
results in the exclusion of favorable evidence. See State v.
Thornton, 2017 UT 9, ¶ 77, 391 P.3d 1016. Instead, “the defense
(continued…)
20180534-CA 6 2020 UT App 68State v. Barner
is harmful if, absent the error, there is a reasonable likelihood of
a more favorable outcome for the defendant.” State v. Cegers,
2019 UT App 54, ¶ 32, 440 P.3d 924 (cleaned up).
¶16 Even if the detective’s opinion regarding the contents of
the surveillance video could have been helpful to the jury in
determining whether Barner intentionally hit the clerk, the
jury was not required to find intentional conduct to convict
Barner of robbery, nor was it even necessary for the jury to find
that Barner hit the clerk with his car. To secure a robbery
conviction, the State had to prove only that Barner “intentionally
or knowingly use[d] force or fear of immediate force.” Utah
Code Ann. § 76-6-301(b) (LexisNexis 2017). The detective’s
statement that the video did “not show that the suspect
intentionally hit the clerk” had no bearing on whether Barner
knowingly used force or fear of force. Even if the statement had
been admitted and had convinced the jury that striking the clerk
was unintentional, it would not have undermined the jury’s
finding that Barner had knowingly used fear of immediate force
by accelerating when he knew that the clerk was standing in
front of his car. Therefore, the exclusion of the detective’s
(…continued)
must demonstrate a ‘weighty interest’ that is ‘significantly
undermined’ by the rule of evidence; and the rule must be
shown to be ‘arbitrary’ or ‘disproportionate to the purposes’ it is
designed to serve.” Id. (quoting Scheffer, 523 U.S. at 308, 315).
This requires, “at a minimum, proof that the evidence in
question is essential to the presentation of a defense.” Id. ¶ 78.
Here, the evidence was not essential to Barner’s defense that he
did not intentionally strike the clerk with his car. Barner
presented his theory to the jury both through the surveillance
video itself and the clerk’s testimony that it was possible Barner
was simply trying to drive off, as opposed to trying to hit
him. Because the exclusion of the evidence did not deprive
Barner of a constitutional right, the higher standard of scrutiny
does not apply.
20180534-CA 7 2020 UT App 68State v. Barner
opinion did not prejudice Barner because there is no reasonable
probability that its admission would have resulted in a more
favorable verdict.
II. Directed Verdict
¶17 Barner next argues that the district court erred when it
denied his motion for a directed verdict. A court may grant a
directed verdict if “the evidence is not legally sufficient to
establish the offense charged therein or any lesser included
offense.” Utah R. Crim. P. 17(o).
¶18 At the close of the State’s case, Barner moved for a
directed verdict, arguing that the State presented insufficient
evidence that Barner committed aggravated robbery. Although
Barner’s motion addressed only the charged offense of
aggravated robbery, the court necessarily considered whether
the evidence was legally sufficient to prove the lesser-included
offense of robbery for which Barner was ultimately convicted.
See supra note 3. To prove robbery, the State must show that “the
person intentionally or knowingly use[d] force or fear of
immediate force against another in the course of committing a
theft or wrongful appropriation.” Utah Code Ann. § 76-6-301(b)
(LexisNexis 2017).
¶19 The evidence presented to the jury was sufficient to
establish that Barner “knowingly use[d] force or fear of
immediate force against another in the course of committing a
theft.” Id. The clerk testified that after he saw Barner get into the
car, he yelled to get Barner’s attention. While the clerk was
standing in front of Barner’s car, the two made eye contact,
establishing that Barner knew the clerk had approached his car.
Nevertheless, Barner accelerated despite knowing that the clerk
was in close proximity to the vehicle. This evidence was
sufficient for the jury to conclude that, even if Barner did not
intend to strike the clerk, he knowingly used force or fear of
immediate force to intimidate the clerk and aid his escape.
20180534-CA 8 2020 UT App 68State v. Barner
Therefore, the district court did not err in denying Barner’s
motion for a directed verdict.
CONCLUSION
¶20 We conclude that exclusion of the detective’s report and
testimony was proper under rule 701, and in any event, Barner
was not harmed by the ruling. Further, the court did not err in
denying Barner’s motion for a directed verdict. Accordingly, we
affirm.
20180534-CA 9 2020 UT App 68