2016 UT App 151
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DAWN ANN DRAPER-ROBERTS,
Appellant.
Opinion
No. 20141057-CA
Filed July 21, 2016
Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 141902608
John B. Plimpton and Steffen Soller, Attorneys
for Appellant
Simarjit Gill and Craig N. Stanger, Attorneys
for Appellee
SENIOR JUDGE PAMELA T. GREENWOOD authored this Opinion, in
which JUDGE J. FREDERIC VOROS JR. and SENIOR JUDGE JUDITH M.
BILLINGS concurred. 1
GREENWOOD, Senior Judge:
¶1 Defendant Dawn Ann Draper-Roberts appeals after a jury
found her guilty of theft, a class A misdemeanor. See Utah Code
Ann. §§ 76-6-404, -412(1)(c)(i) (LexisNexis 2012). She argues that
the trial court should have granted one or more of her several
motions for a mistrial. We agree and therefore reverse and
remand for a new trial.
1. Senior Judges Judith M. Billings and Pamela T. Greenwood sat
by special assignment as authorized by law. See generally Utah R.
Jud. Admin. 11-201(6).
State v. Draper-Roberts
BACKGROUND2
¶2 Defendant worked at a craft store, where she found a
customer’s purse in a shopping cart. Rather than immediately
locking the purse in the store’s safe, she put it in the store’s
classroom where there were locking cabinets and where she was
working that day.
¶3 When the customer realized her purse was missing, she
returned to the store and asked three employees if they had seen
the purse. None of the employees reported knowing where the
purse was. One of the employees—the acting manager—used
the store’s radio headset system to ask if any employees had
found the purse. No one responded. The acting manager
recorded the customer’s contact information, and the customer
left. The acting manager testified that she spoke to Defendant
within a few minutes of the customer’s departure, asking if she
had seen the purse. According to the acting manager’s
testimony, Defendant indicated that she had not.
¶4 Meanwhile, at home, the customer used the Find My
iPhone application on her iPad to determine the location of her
iPhone, which was inside her missing purse. The application
showed that her phone was still inside the craft store. She used
the application to set off an alarm on her phone, and her
husband informed police that she was returning to the store to
look for her purse.
¶5 Around the same time, back at the store, Defendant
brought the acting manager the customer’s purse, from which
2. ‚On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.‛ State v. Bluff, 2002 UT 66, ¶ 2, 52 P.3d 1210 (citation and
internal quotation marks omitted).
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State v. Draper-Roberts
the sound of the iPhone’s alarm was emitting. The acting
manager put the purse in the store safe. Police arrived, took
possession of the purse, and ‚continued the investigation to
obtain facts to write a report.‛ When the customer again
returned to the store, police returned her purse to her; ‚nothing
was missing from or disturbed in it.‛
¶6 The officer who investigated the case questioned
Defendant about where she found the purse and worked with
her to obtain the store’s surveillance video. The video showed
that Defendant had found the purse in a different area of the
store than where she had initially told the officer. At trial, the
officer described Defendant as uncooperative, hostile, and
suspicious.3
¶7 Also at trial and during the officer’s testimony, it became
apparent that the State possessed video retrieved from the
officer’s body camera (the body cam video) that Defendant had
not been provided as part of the State’s discovery. Defendant
moved for a mistrial, arguing that ‚the video shows potentially
exculpatory evidence‛ and that defense counsel ‚would have
prepared for this trial in a completely different manner if [he]
had the video available beforehand like *he+ should have had.‛
Defense counsel further explained that even if the video was not
3. Importantly, for reasons that are discussed in detail below, see
infra ¶¶ 21–24, the officer also specifically testified that he ‚had
asked [Defendant] where she found the purse, at which point
she really didn’t want to talk to *him+ about it. She just started
asking *him+ questions.‛ He also testified, ‚And then I asked her
for just some basic information. Okay, what’s your name, so I
can put this down? She is -- she didn’t want to give me her name
at first.‛ Video taken from the officer’s body camera, however,
tells a different story—a fact critical to our determination of
harm and our ultimate reversal.
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State v. Draper-Roberts
exculpatory and was in fact incriminating, ‚it would change the
way that [he] ask[ed] questions, how [he] approach[ed] the case,
how [he] advise[d] [his] client as to her rights, [and] whether or
not she should take a plea offer.‛
¶8 The trial court denied Defendant’s motion for a mistrial
and instead gave ‚[d]efense counsel the evening and the rest of
the afternoon to go over th[e] video as many times as he
need[ed] to, to queue it up to where he need[ed] to . . . , and to be
ready for cross-examination [the next day].‛ The court then
adjourned for the day at 2:45 p.m., with proceedings set to begin
at 10:00 a.m. the following morning. When trial recommenced,
Defendant renewed her motion for a mistrial, which the trial
court again denied.
¶9 Aside from the revelation of the body cam video, two
other events at trial are relevant to our review. During jury voir
dire, the prosecutor named only three witnesses—the officer, the
customer, and the store manager, who had been out of town
during the events at issue—and those were the only witnesses
about whom the court asked the jury, ‚Are any of you
acquainted with or related to any of those people mentioned?‛
However, after defense counsel finished his opening statement,
the State informed the court that the acting manager would also
be testifying, explaining, ‚There is a witness that we did not
think was available, that is.‛ When the prosecutor mentioned
this fourth witness—the acting manager—defense counsel
responded with what is only marked as ‚inaudible‛ in the
transcript. The prosecutor responded, ‚She is in the police
report,‛ to which defense counsel argued, ‚I asked him two days
ago who the witnesses are going to be, and he named three
witnesses.‛ The trial court allowed the acting manager to testify.
¶10 Finally, Defendant again moved for a mistrial after the
State decided not to have the store manager testify. During
Defendant’s opening statement, defense counsel had previewed
20141057-CA 4 2016 UT App 151
State v. Draper-Roberts
some of the exculpatory testimony he anticipated the store
manager would provide. Namely, he expected the store manager
to testify that she had known Defendant for ten years, that she
knew Defendant to be a good employee, and that she had never
had any problems with her. When the State announced that it
would not have the store manager testify, Defendant objected,
but the trial court released the witness because the State—and
not Defendant—had subpoenaed her to testify. Defendant
moved for a mistrial, arguing that the State opted not to have the
store manager testify because it knew she would provide
testimony beneficial to Defendant. The trial court denied the
motion.
¶11 The jury found Defendant guilty of theft. She now appeals
her conviction.
ISSUES AND STANDARDS OF REVIEW
¶12 Defendant raises four issues on appeal. First, she argues
that the trial court erred by denying her motions for a mistrial to
remedy the State’s failure to give Defendant the body cam video
before trial. ‚‘We review rulings on motions for a mistrial based
on prosecutorial misconduct [i.e., discovery violations] for abuse
of discretion.’‛ State v. Martinez, 2002 UT App 126, ¶ 16, 47 P.3d
115 (alteration in original) (quoting State v. Reed, 2000 UT 68,
¶ 18, 8 P.3d 1025).
¶13 Second, Defendant argues that the trial court erred when
it allowed the acting manager to testify despite the State’s failure
to disclose her as a witness prior to trial. We review the trial
court’s decision to allow the acting manager to testify for an
abuse of discretion.4 See State v. Perea, 2013 UT 68, ¶ 31, 322 P.3d
4. There is some question about whether Defendant preserved
this challenge for our review. Defendant asserts that even if it
(continued<)
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State v. Draper-Roberts
624 (‚*W+e give the district court broad discretion to admit or
exclude evidence, including lay witness testimony, and will
disturb its ruling only for abuse of discretion.‛ (citation and
internal quotation marks omitted)).
¶14 Third, Defendant argues that the trial court should have
required the store manager—who had been subpoenaed by the
State and was present at trial—to remain in court and testify,
even though the State indicated it would not need her testimony.
In her brief, Defendant suggests that we should review this issue
for correctness, because the release of the store manager as a
witness was based on the trial court’s arguably incorrect
‚conclusion of law‛ ‚that a party cannot compel a witness who
is present in court to testify without having subpoenaed the
witness.‛ (Citing Utah R. Civ. P. 45(j); State v. Petersen, 810 P.2d
421, 425 (Utah 1991); McKelvey v. Hamilton, 2009 UT App 126,
¶ 17, 211 P.3d 390.) The State’s brief is unhelpful in determining
(