2016 UT App 241
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
COY BRANDON WHITE,
Appellant.
Opinion
No. 20141003-CA
Filed December 15, 2016
Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 121908920
Nicole G. Farrell, Alan S. Mouritsen, and Adam E.
Weinacker, Attorneys for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and J. FREDERIC VOROS JR. concurred.
MORTENSEN, Judge:
¶1 Defendant Coy Brandon White was found uninvited and
without pants in a darkened bathroom by Victim, who engaged
in combat with his newfound adversary. A jury convicted
Defendant of aggravated burglary and aggravated assault, and
he now appeals. We affirm.
BACKGROUND
¶2 On the evening of May 11, 2012, Victim arrived home and
greeted his son (Son) before making his way to the master
bathroom to wash his hands. As Victim approached the
bathroom, he saw the silhouette of a man in his underwear.
State v. White
Victim asked the man who he was and what he was doing, to
which the man replied, ‚I’m here for your daughter.‛ Victim’s
daughter was not home at the time. Using the bedroom door,
which is adjacent to the bathroom, Victim attempted to trap the
man in the bathroom. The man ‚stuck the end of a broom
through an opening in the doorway‛ and hit Victim. Victim then
opened the bedroom door, and the two men engaged in a
physical struggle. At some point Son came in, and Victim
instructed him to go get a knife. Son returned with two, giving
one to Victim. Victim did not immediately use the knife against
the man because he felt ‚compassion not to kill him.‛ The man
momentarily retreated to retrieve a clothes iron from the hall,
which he used to strike Victim. When Victim countered with the
knife, the man ‚started backing up defending himself with the
iron,‛ then dropped the iron and fled the apartment.
¶3 Police found blood on the iron and sent the blood to the
Utah State Crime Lab for testing. The DNA from the blood
matched a DNA sample in Utah’s Combined DNA Index
System. The sample belonged to Defendant. Neither Victim nor
Son could identify Defendant at trial as the man in their home,
and Victim failed to select Defendant’s picture from a photo
array following the incident. No one in Victim’s family knew
Defendant; he had never been invited to enter their home.
¶4 The State charged Defendant with aggravated burglary
and aggravated assault, first and third degree felonies
respectively. See Utah Code Ann. § 76-6-203 (LexisNexis 2012);
id. § 76-5-103. During discovery, the State filed a motion under
rule 16 of the Utah Rules of Criminal Procedure requesting a
sample of Defendant’s DNA via buccal swab—a method of
collecting DNA by swabbing the interior surface of a person’s
cheek. The motion was supported by an affidavit from the
investigating officer. Defendant objected to the motion. The trial
court overruled Defendant’s objection, and after hearing
argument, granted the State’s motion, ordering Defendant to
provide the sample. Defendant refused. The State then filed a
second motion, again under rule 16, requesting an order
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State v. White
allowing it to use force to obtain Defendant’s DNA sample.
Again Defendant objected, arguing that rule 16 does not
authorize the use of force in obtaining a DNA sample, and again
the trial court granted the State’s motion. Defendant thereafter
allowed investigators to take a sample of his DNA without force,
and this was the only evidence the State presented at trial to
prove Defendant’s identity as the man in Victim’s apartment.
¶5 Defendant’s trial strategy involved alternative defenses.
Either (1) Defendant was not the man who Victim found in his
bathroom or (2) Defendant’s actions were justified as a result of
self-defense or compulsion. As Defendant explains,
‚Accordingly, the actions of [Victim] the night of the incident
were relevant to *Defendant’s+ defense.‛ For this reason,
Defendant informed the trial court that Victim had entered a
plea in abeyance on a 2010 assault charge and stated that if
Victim put his own character at issue, Defendant would question
him about the 2010 charge.
¶6 In the course of Victim’s testimony, he stated that he had
‚felt compassion not to kill‛ the man in his bathroom and that he
did not ‚have a criminal mind.‛ Defense counsel, during a bench
conference, asserted that these statements were ‚somewhat
ambiguous, [and] may be a question of interpretation‛ and
asked permission to cross-examine Victim on ‚what it is that he
meant.‛ In defense counsel’s view, ‚depending on *Victim’s+
answer,‛ that could ‚open the door to some discussion of the‛
plea in abeyance. The trial court refused the request.
¶7 Also during his testimony, Victim twice made comments
indicating that he ‚felt more accused than the defendant.‛ 1 After
the first comment, Defendant requested, and the trial court gave,
1. Only one of these comments is explicitly indicated in the trial
transcript. The parties’ briefs and the context of the second
comment indicate that Victim made an earlier comment along
the same lines, which for some reason was not recorded.
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State v. White
a curative instruction to the jury to disregard the comment.
Following the second comment, Defendant moved for a mistrial.
The trial court denied the motion but indicated its willingness to
give a second curative instruction; Defendant never requested
this second instruction.
¶8 Finally, Defendant raised the issue of Victim’s status as an
undocumented immigrant. Victim had filed I-918 petitions—
used to obtain what are commonly called U visas—for himself
and his family. Defendant presented an expert at trial who
explained that U visas confer legal status on victims of violent
crimes. Defendant used this evidence to suggest a possible
motive for Victim to fabricate the details of that night, namely,
obtaining a more favorable immigration status. Defendant also
sought to question Victim concerning his refusal to provide
defense counsel with a copy of the I-918 petitions. The trial court
had reviewed the petitions in camera and concluded that there
was nothing potentially exculpatory in them. It therefore barred
that line of questioning, explaining, ‚*T+hat is not coming in,
that’s not relevant for any purpose. . . . That’s his right.‛
¶9 The jury convicted Defendant of aggravated burglary and
aggravated assault. Defendant now appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 Defendant first argues that the trial court erred in
granting the State’s rule 16 motions to obtain a sample of his
DNA—particularly the second motion, which sought to obtain
the sample by force—because the State should have been
required to obtain a warrant. Normally, ‚rulings on motions to
compel . . . are reviewed for an abuse of discretion.‛ Macris
& Assocs., Inc. v. Neways, Inc., 2006 UT App 33, ¶ 8, 131 P.3d 263;
see also State v. Tanner, 2011 UT App 39, ¶ 5, 248 P.3d 61. But
because Defendant’s argument rests on whether rule 16 is a
proper mechanism for obtaining DNA evidence by force,
resolution of this issue requires us to interpret the language of
rule 16 and decide whether Defendant was afforded necessary
20141003-CA 4 2016 UT App 241
State v. White
constitutional protections. We therefore review the trial court’s
grant of the State’s motions for correctness. See Ostler v. Buhler,
1999 UT 99, ¶ 5, 989 P.2d 1073 (‚The proper interpretation of a
rule of procedure is a question of law, and we review the trial
court’s decision for correctness.‛); State v. Holland, 921 P.2d 430,
433 (Utah 1996) (‚*T+he ultimate question of whether the trial
court strictly complied with constitutional and procedural
requirements . . . is a question of law that is reviewed for
correctness.‛).
¶11 The second and third issues on appeal concern the trial
court’s restriction of Defendant’s cross-examination of Victim,
particularly regarding Victim’s 2010 assault charge and his I-918
petitions. We generally review the trial court’s decisions
concerning the scope of cross-examination, including its
decisions to allow or exclude evidence, for an abuse of
discretion. State v. Gomez, 2002 UT 120, ¶ 12, 63 P.3d 72.
¶12 Defendant also argues that the trial court should have
granted his motion for a mistrial following Victim’s statements
that he felt more accused than Defendant.
Because a district judge is in an advantaged
position to determine the impact of courtroom
events on the total proceedings, once a district
court has exercised its discretion and denied a
motion for a mistrial, we will not reverse the
court’s decision unless it ‚is plainly wrong in that
the incident so likely influenced the jury that the
defendant cannot be said to have had a fair trial.‛
State v. Allen, 2005 UT 11, ¶ 39, 108 P.3d 730 (quoting State v.
Wach, 2001 UT 35, ¶ 45, 24 P.3d 948).
¶13 Notwithstanding the standards of review just outlined,
we will reverse Defendant’s convictions only if we are convinced
that the trial court’s errors made ‚the likelihood of a different
outcome . . . sufficiently high to undermine confidence in the
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State v. White
verdict.‛ State v. Knight, 734 P.2d 913, 920 (Utah 1987); see State v.
Draper-Roberts, 2016 UT App 151, ¶ 16, 378 P.3d 1261 (dealing
with harmlessness in an abuse-of-discretion context); State v.
Hawkins, 2016 UT App 9, ¶ 33, 366 P.3d 884 (dealing with
harmlessness in a correctness context); see also Utah R. Crim. P.
30(a) (‚Any error, defect, irregularity or variance which does not
affect the substantial rights of a party shall be disregarded.‛);
State v. Jimenez, 2016 UT App 138, ¶ 9, 379 P.3d 50 (explaining
that even if we determine certain evidence should have been
admitted, we will reverse only if admission of that evidence
would likely have led to a different result at trial). Thus, even if
we determine or assume that the trial court erred in one of the
ways Defendant identifies, we will reverse only if there is a
reasonable likelihood that Defendant was harmed by the error or
by the cumulative effect of several errors. When it is more
expedient to do so, we focus our attention first on what harm, if
any, Defendant suffered as a result of the alleged errors. See State
v. Cox, 2012 UT App 234, ¶ 5, 286 P.3d 15 (indicating that we
need not decide whether an ‚error was obvious or invited, or
whether counsel was deficient in failing to object to it because
we conclude that the error was harmless‛ (footnote omitted)); cf.
Archuleta v. Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232 (explaining
that under the ineffective-assistance-of-counsel standard, where
it is easier to dispose of a claim on prejudice grounds, the court
will do so without analyzing the reasonableness of counsel’s
performance).
¶14 Finally, Defendant contends that ‚the errors presented on
appeal warrant reversal of [his] convictions under the
cumulative error doctrine.‛ ‚Under the cumulative error
doctrine, we apply the standard of review applicable to each
underlying claim or error‛ and ‚reverse only if the cumulative
effect of multiple errors undermines our confidence that a fair
trial was had.‛ State v. Davis, 2013 UT App 228, ¶ 16, 311 P.3d
538 (citations and internal quotation marks omitted).
20141003-CA 6 2016 UT App 241
State v. White
ANALYSIS
I. Authorization of Use of Force To Retrieve Defendant’s DNA
¶15 Defendant contends that the State violated his
constitutional protection against unreasonable searches and
seizures, see Utah Const. art. I, § 14,2 when it relied on rule 16 of
the Utah Rules of Criminal Procedure to obtain authorization for
the use of force in securing a sample of his DNA. We conclude
that the trial court appropriately granted the State’s rule 16
motion, authorizing the use of force in obtaining a sample of
Defendant’s DNA.3
¶16 State v. Easthope, 668 P.2d 528 (Utah 1983), addressed a
nearly identical issue. There, the district court had ordered the
defendant to surrender body and pubic hair, saliva, and blood
samples under the predecessor to rule 16. Id. at 530, 531; see also
Utah Code Ann. § 77-35-16 (Allen Smith Co. 1982). The
defendant argued that ‚the taking of his blood sample without a
search warrant was . . . unconstitutional.‛ Easthope, 668 P.2d at
531–32 (footnote omitted). The Utah Supreme Court reasoned
that ‚the purpose of the warrant requirement . . . was not to exalt
the formality of the warrant but to assure that the decision to
compel an invasion of a person’s body in search of evidence of
guilt was made by a neutral and detached magistrate.‛ Id. at 532
(citation and internal quotation marks omitted). The court then
2. Defendant does not allege a violation of the Fourth
Amendment to the United States Constitution.
3. We note that although the State ultimately did not need to
resort to the use of force, see supra ¶ 4, Defendant’s argument is
that ‚Rule 16 does not permit the warrantless taking of DNA by
force.‛ Defendant is not precluded from pursuing this argument
simply because he cooperated instead of risking injury by
requiring the State to take his DNA by force.
20141003-CA 7 2016 UT App 241
State v. White
set forth the following analysis, which applies directly to this
case:
That concern was fully satisfied in the
circumstances of this case. Following defendant’s
arrest on a warrant, the State filed a motion to
compel discovery of body fluids. Defendant and
his counsel were notified, an adversary hearing
was held, and . . . the magistrate ordered the taking
of a blood sample. That course of events, which
provided the defendant greater procedural
protection than he has under a search warrant
(notably his participation in the hearing), satisfied
the constitutional requirements for the invasion of
a person’s body.
Id.
¶17 Not only does this analysis from Easthope support the
conclusion that the trial court did not err in granting the State’s
motion in this case, but it also echoes the outcome of similar
cases throughout the country. See, e.g., United States v. Pipito, 861
F.2d 1006, 1009–10 (7th Cir. 1987) (comparing retrieving
fingerprints to retrieving blood samples and concluding that
force may be used to obtain such materials because ‚while it
may not enhance the image of justice to force a witness kicking
and screaming . . . the choice has been made by the witness, not
the court‛ (omission in original) (citation and internal quotation
marks omitted)); Simmons v. Secretary, Dept. of Corr., No. 8:08-cv-
2433-T-17EAJ, 2010 WL 1408434, at *12 (M.D. Fla. April 6, 2010)
(deciding, where the Florida Rules of Criminal Procedure
authorized a court to require the defendant to ‚‘permit the
taking of samples of the defendant’s blood, hair, and other
materials of the defendant’s body that involves no unreasonable
intrusion,’‛ that ‚the Court had the ability to require the
Defendant to provide a saliva sample without needing a search
warrant‛ (quoting Fla. R. Crim. P. 3.220)); People v. Treece, 511
N.E.2d 1361, 1367 (Ill. App. Ct. 1987) (concluding that Illinois
20141003-CA 8 2016 UT App 241
State v. White
Supreme Court Rule 413 ‚can be used to obtain a blood sample
from a defendant without resort to a search warrant following
indictment or information‛).
¶18 Defendant’s attempts to distinguish Easthope are
unavailing. He claims that ‚the Easthope court did not analyze
the precise language of Rule 16(h) or its interplay with the State’s
more recent constitutional jurisprudence and protection of
individual rights.‛ But as we explained, see supra ¶ 16, the statute
relied on in Easthope was simply an earlier version of rule 16, and
Defendant does not attempt to explain how the existence of two
versions of the same rule, nearly identical in substance but
different in name, affects the outcome on appeal. And the mere
passage of time since it was decided, without more, does not
make Easthope any less controlling.
¶19 As in Easthope, the trial court in this case used the then-
current discovery rules to provide Defendant more protection
than he would have received if the State had simply obtained a
warrant for a sample of his DNA. See infra ¶ 24. In this we see no
error.
¶20 Even without reference to the Easthope analysis,
application of the relevant criminal discovery rules yields the
same result. Rule 16 of the Utah Rules of Criminal Procedure
provides that, ‚*s+ubject to constitutional limitations, the accused
may be required to . . . permit the taking of samples of blood,
hair, fingernail scrapings, and other bodily materials which can
be obtained without unreasonable intrusion.‛ Utah R. Crim. P.
16(h)(6). That same rule provides that if a party fails to comply,
‚the court may order such party to permit the discovery or
inspection, . . . or it may enter such other order as it deems just
under the circumstances.‛ Id. R. 16(g). Here, the trial court
required Defendant to provide ‚other bodily materials‛ when it
ordered him to submit to a buccal swab. See id. R. 16(h)(6). Then,
when Defendant failed to submit to such procedure, the trial
court authorized the State to use force in obtaining the DNA
sample.
20141003-CA 9 2016 UT App 241
State v. White
¶21 Other courts have consistently described buccal swabs as
minor intrusions. See, e.g., Maryland v. King, 133 S. Ct. 1958, 1980
(2013) (‚minor intrusion of a brief swab of his cheeks‛); Haskell v.
Harris, 669 F.3d 1049, 1050 (9th Cir. 2012) (‚a de minimis
intrusion‛), aff’d, 745 F.3d 1269 (9th Cir. 2014) (en banc); Friedman
v. Boucher, 580 F.3d 847, 863 (9th Cir. 2009) (‚far less intrusive
than drawing blood and a relatively minor intrusion‛). And
Defendant does not contend that the State’s buccal swab
procedure resulted in an ‚unreasonable intrusion.‛ See Utah R.
Crim. P. 16(h)(6). Instead, Defendant argues that the trial court’s
order failed to comport with ‚constitutional limitations‛ by
authorizing the use of force. See id. He further claims that
discovery rules cannot be used to circumvent the warrant
requirement for searches. In Defendant’s view, while rule 16 can
be used to ‚require* the accused+ to permit the taking of . . .
bodily materials that can be obtained without unreasonable
intrusion,‛ ‚the accused can decide to comply with the order, or
refuse to comply and face the consequences.‛ According to
Defendant, those consequences cannot include ‚use of
reasonable force.‛4
4. Defendant suggests that State v. Bakalov, 1999 UT 45, 979 P.2d
799, supports this argument. Bakalov involved a rape defendant
who sought to have an expert evaluate a semen sample found on
his victim. Id. ¶ 54. The trial court ‚granted the request subject to
*the defendant’s+ first submitting a sample of his blood to the
State.‛ Id. ¶ 10. Because the defendant refused to provide the
sample, the court denied his motion. Id. On appeal, our supreme
court concluded that the trial court’s imposed condition for
testing ‚comported with Utah Rule of Criminal Procedure
16(h)(6).‛ Id. ¶ 54. Specifically, recognizing the significant
discretion afforded trial courts ‚to remedy any prejudice to a
party resulting from a breach of the criminal discovery rules,‛
the supreme court determined that forcing the defendant to
choose between providing a sample of his DNA or not having
the semen sample evaluated did not ‚violate the constitution or
(continued<)
20141003-CA 10 2016 UT App 241
State v. White
¶22 We cannot agree with Defendant’s interpretation of the
rule, which would effectively preclude the State from seeking
information through discovery if that information could
properly be the subject of a warrant. Instead, the rule grants the
trial court considerable discretion to make discovery orders, so
long as those orders comply with constitutional requirements.
The constitutional requirement applicable to searches of a
defendant’s person and seizure of his or her DNA is one of
reasonableness: ‚The right of the people to be secure in their
persons . . . against unreasonable searches and seizures shall not
be violated . . . .‛ Utah Const. art. I, § 14.
¶23 The most common way the law ensures that a search and
seizure is reasonable is to require a warrant, which ‚shall *not+
issue but upon probable cause supported by oath or affirmation,
particularly describing the place to be searched, and the person
or thing to be seized.‛ Id. Probable cause ‚undoubtedly requires
a nexus between suspected criminal activity and the place to be
searched.‛ State v. Dable, 2003 UT App 389, ¶ 5, 81 P.3d 783
(citation and internal quotation marks omitted). Probable cause
is typically established by affidavit, as occurred here. In the
present case, the suspected criminal activity was a man’s
unlawful entry into Victim’s home and the ensuing altercation,
which left blood on the clothes iron. The place to be searched
was Defendant’s person via a buccal swab for DNA. The strong
nexus between the criminal activity and the place to be searched
was the match between the DNA in the blood found on the iron
(