State v. Johnson

2016 UT App 223 THE 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 223 State 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 223 State 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 223 State 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 223 State 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 223 State 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 223 State 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 223 State 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 223 State 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 223 State 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. (