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
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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
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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.
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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
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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
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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
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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
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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.
(