State v. Thornock

2020 UT App 138

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ROBERT LEE THORNOCK,
Appellant.

Opinion
No. 20180869-CA
Filed October 8, 2020

First District Court, Logan Department
The Honorable Thomas Willmore
No. 171100608

David M. Perry, Attorney for Appellant
Sean D. Reyes and David A. Simpson, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and JILL M. POHLMAN
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Robert Lee Thornock appeals from his conviction of
aggravated robbery, a first degree felony. We affirm.

BACKGROUND

¶2 Early in the morning of January 26, 2014, Thornock and
his then-girlfriend (Wife) drove to a Walmart in Logan, Utah. As
they were approaching the Walmart, Thornock instructed Wife
to drive slowly so that he could look at a Super 8 motel they
were passing.
 State v. Thornock

¶3 While they were inside the Walmart, Wife saw Thornock
stuff a hunting mask into his pants. They also went to the craft
area, where Thornock picked up a roll of duct tape with colorful
skulls on it and stated, “This will be cute.” The couple did not
purchase the mask or duct tape but purchased several other
items and left the store.

¶4 As they passed the Super 8 motel, Thornock again told
Wife to slow down and “star[ed] over at Super 8 quite hard.”
They eventually went to Thornock’s mother’s apartment, and
Wife went inside at about 2:00 a.m., leaving Thornock outside
with his brother (Brother).

¶5 At around 3:00 a.m., two masked men entered the Super 8
motel. One of the men carried what appeared to be a
semiautomatic handgun, and the other had duct tape with
colorful skulls and “tools for the robbery.” They handcuffed the
night manager and bound his hands with the duct tape. They
stole keys, some documents, and about $150–$200 in cash.

¶6 Thornock and Brother entered their mother’s apartment
around 4:00 or 4:30 a.m. Thornock was acting paranoid and
asked Wife, “Who are you talking to? Are you talking to the
cops? Did you call the cops on me?” He then went into the living
room to talk to Brother and went to bed around 5:00 or 5:30 a.m.

¶7 The next day, Thornock suggested that he and Wife go for
a drive in a nearby canyon. They stopped at a campsite and built
a fire. Wife observed Thornock throw a reusable blue Walmart
bag with keys and papers into the fire. He also burned his
hoodie.

¶8 Next, Thornock proposed that he and Wife “get married
tomorrow.” Wife thought it felt sudden, but she agreed. They
were married a couple of days later.

¶9 In the meantime, officers had been investigating the Super
8 robbery. The detective in charge (Detective) noticed the

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unusual duct tape used in the robbery and began looking into
where it was sold. He found the tape for sale at the nearby
Walmart in addition to camouflage hunting masks, one of which
the Super 8 night manager identified as matching one of the
masks worn during the robbery. Detective reviewed Walmart’s
surveillance video from the night of the robbery and observed a
man and a woman walking through the hunting and craft
sections of the store. The couple then made a purchase—that did
not include either a hunting mask or duct tape—and left the
store. Although the video did not show the couple stealing
anything, a search of the store’s electronic inventory revealed
that one roll of duct tape and two masks were missing.

¶10 Detective identified the car the couple was driving from
surveillance video and found that it was registered to
Thornock’s mother. Detective and another officer went to the
mother’s apartment and photographed the car in the parking lot.
While they were there, they saw Thornock and Wife, who looked
like the couple from the Walmart videos, approaching the car.

¶11 When the officers approached the couple, Thornock
became “aggressive and angry.” Officers asked if he had any
weapons, and in response, Thornock pulled a knife out of his
pocket and “threw it aggressively at the ground.” The officers
handcuffed Thornock and put him in their patrol car. When they
later removed Thornock from the patrol car, they found a bag of
methamphetamine in the area where he had been sitting. This
led them to conduct a dog sniff around his mother’s car. The dog
sniff indicated positive for a controlled substance, which allowed
Detective to obtain a warrant to search the car. In the course of
this search, the officers discovered a camouflage face mask,
white gloves, superglue, 1 and mail addressed to Thornock,
Brother, and Wife.

1. White gloves and superglue were two of the items purchased
by the couple at the Walmart.

20180869-CA 3 2020 UT App 138
 State v. Thornock

¶12 Detective questioned both Thornock and Wife. Thornock
denied committing the robbery and claimed not to remember
being at Walmart. Wife eventually admitted that they had been
at Walmart that night and had taken the decorated duct tape.
She also directed officers to the fire pit in the canyon, where they
recovered fragments of a hoodie, keys that matched those taken
from the Super 8, magnetic nametags that matched those used
by Super 8, and several scraps of mail addressed to the motel’s
owner.

¶13 Thornock was charged with felony possession of
methamphetamine. However, because Wife was unwilling to
testify against Thornock at that time, authorities did not have
enough evidence to bring a robbery charge against him.

¶14 In connection with his methamphetamine charge,
Thornock filed a motion to suppress evidence obtained as a
result of his detention, claiming that he was detained in violation
of his Fourth Amendment rights. The trial court denied the
motion, and Thornock eventually pleaded guilty to the
methamphetamine charge.

¶15 Several years later, Wife ran into Detective at a local
restaurant. She told him the case had been “weighing [her] down
for a while” and that she wanted to “get this off [her]
conscience,” so she agreed to cooperate with the prosecution of
her soon-to-be ex-husband. During a new interview with police,
she admitted to having lied to Detective several times during her
previous interviews. With Wife’s cooperation and further
information about the robbery, the State charged Thornock with
one count of aggravated robbery. Thornock once again moved to
suppress evidence stemming from his detention. The trial court
denied the motion on grounds of collateral estoppel because his
motion to suppress evidence stemming from the same detention
had been denied in the methamphetamine case.

¶16 Before trial began, Thornock moved to exclude a portion
of his police interview. In that interview, Detective asked him

20180869-CA 4 2020 UT App 138
 State v. Thornock

whether he had stolen anything from Walmart on the night in
question. Thornock responded, “I don’t steal, I kill.” Detective
clarified, “You don’t steal, you kill? Huh. That’s a pretty tough
statement. Tell me what you mean by that.” Thornock then
proceeded to explain, “I crush my kids, pretty much kill them,
suck the life out of them. Myself, anybody around me, anyone I
care about. That’s all I’ve done for years and years. I’m tired of
this stuff.” He then went on to explain that Wife made him feel
better about himself.

¶17 Thornock argued that it would be highly prejudicial for
the jury to hear him make the statement, “I kill.” The State
countered that the statement was relevant because (1) Thornock
denied stealing things from Walmart; (2) the statements about
Wife, which needed to be understood in context, were
inconsistent with his proposed alibi defense that he was with his
ex-wife at the time of the robbery; and (3) his admission that he
damages people around him could be construed as an
acknowledgement that he had hurt his family by committing the
robbery. The court denied Thornock’s motion to exclude the
statement. The court agreed that the statement was relevant and
determined that it would not be unfairly prejudicial given
Thornock’s clarification of what he meant by the statement.

¶18 At trial, the State relied, in part, on a theory of accomplice
liability. During closing arguments, the prosecutor told the jury,

[Thornock] clearly was one of the robbers. He was
wearing a camo mask. . . . But if there’s any
confusion, if you find that in any way he did any of
these things—he’s smirking with the duct tape,
scoping out the motel, providing that to someone
else—still guilty if he has the intent. But he was
there. He committed the robbery.

After the prosecutor finished his closing statement, defense
counsel raised a concern outside the presence of the jury about
the statement. He told the court that he was concerned that the

20180869-CA 5 2020 UT App 138
 State v. Thornock

prosecutor stated “that if Mr. Thornock had bought the duct tape
or looked at the duct tape, he’s implicated in the robbery and can
be convicted.” The court agreed to give a curative instruction
and crafted the language of the instruction in consultation with
defense counsel and the prosecutor. Ultimately, the jury was
instructed “that simply buying duct tape that matches what was
used in the robbery is not sufficient to find [Thornock] guilty of
armed robbery.” The court further directed the jury to review
the “very specific elements that must be proved beyond a
reasonable doubt to find Mr. Thornock guilty beyond a
reasonable doubt.”

¶19 The jury convicted Thornock as charged, and he now
appeals.

ISSUES AND STANDARDS OF REVIEW

¶20 Thornock first asserts that the trial court’s curative
instruction was insufficient to cure unfair prejudice produced by
the prosecutor’s allegedly improper statement. When an error is
“cured by either a curative or preliminary instruction,” the
defendant cannot obtain reversal unless “there was an
overwhelming probability that the jury was unable to follow the
court’s instructions, and a strong likelihood that the effect of the
[error] was devastating to him.” State v. Mead, 2001 UT 58, ¶ 50,
27 P.3d 1115 (quotation simplified). Nevertheless, we do not
review claims of error when the error is invited. See State v. Moa,
2012 UT 28, ¶ 27, 282 P.3d 985.

¶21 Thornock next asserts that the trial court erred in
denying his motion to exclude the statement, “I don’t steal, I
kill,” under rule 403 of the Utah Rules of Evidence. “Trial courts
have wide discretion in determining relevance, probative value,
and prejudice,” so “we will not reverse the trial court’s 403
ruling unless we find it was beyond the limits of
reasonableness.” State v. Beverly, 2018 UT 60, ¶ 56, 435 P.3d 160
(quotation simplified).

20180869-CA 6 2020 UT App 138
 State v. Thornock

¶22 Thornock further argues that the court should have
disregarded testimony from Wife on the ground that it was
inherently improbable and that without that testimony, the
evidence was insufficient to support his conviction. We “review
deferentially a trial court’s decision to decline to disregard a
witness’s testimony due to inherent improbability, reversing the
trial court’s decision only if it was clearly erroneous.” State v.
Skinner, 2020 UT App 3, ¶ 20, 457 P.3d 421 (quotation
simplified). However, we will not review the question of a
witness’s credibility if the inherent improbability argument was
not specifically raised before the trial court. State v. Doyle, 2018
UT App 239, ¶ 19, 437 P.3d 1266.

¶23 Finally, Thornock challenges the trial court’s
determination that his Fourth Amendment arguments regarding
his arrest were barred by the doctrine of collateral estoppel. He
asks us to review this challenge for plain error. To prevail based
on plain error, an appellant must show that “(i) an error exists;
(ii) the error should have been obvious to the trial court; and (iii)
the error is harmful, i.e., absent the error, there is a reasonable
likelihood of a more favorable outcome for the appellant.” State
v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (quotation simplified).

ANALYSIS

I. Prosecutorial Misconduct

¶24 Thornock first claims that the trial court’s curative
instruction was insufficient to cure the allegedly improper
statement by the prosecutor. However, we do not consider the
merits of this claim because Thornock invited any error.

¶25 The invited error doctrine precludes our review “when
counsel, either by statement or act, affirmatively represented to
the trial court that he or she had no objection to the
proceedings.” Pratt v. Nelson, 2007 UT 41, ¶ 16, 164 P.3d 366
(quotation simplified). “Our invited error doctrine arises from

20180869-CA 7 2020 UT App 138
 State v. Thornock

the principle that a party cannot take advantage of an error
committed at trial when that party led the trial court into
committing the error.” Id. ¶ 17 (quotation simplified).

¶26 Here, Thornock’s counsel not only approved the curative
instruction, he actively participated in crafting it. Once the trial
court announced that it intended to offer a curative instruction in
response to Thornock’s objection, the following exchange took
place:

[Court]: So what kind of curative instruction do
you want?

[Defense Counsel]: I would just like the Court to
say that . . . to find Mr. Thornock guilty of
aggravated armed robbery, there needs to be more,
he needs to have involvement in the robbery,
something of that nature.

....

[Prosecutor]: . . . . [Y]ou tell me how you want to
cure it. I obviously don’t want to have there be a
problem.

[Court]: What do you suggest?

[Defense Counsel]: There’s something in the nature
that there needs to be more than looking at the
duct tape and a smirk. . . .

....

[Court]: Okay, anything else?

[Defense Counsel]: I think that’s it, your Honor.

The court, prosecutor, and defense counsel then proceeded to
discuss the precise wording of the instruction together. Based on

20180869-CA 8 2020 UT App 138
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that discussion, the court proposed, “Simply buying duct tape
that matches the robbery is not sufficient to find [Thornock]
guilty of armed robbery.” The court then asked defense counsel,
“Is that okay?” to which defense counsel replied, “Yep. That’s
fine, your Honor.”

¶27 This situation presents a prime example of invited error.
Counsel helped devise the instruction and then affirmatively
represented to the court that it was adequate to resolve his
concern about the prosecutor’s statement. Thornock cannot now
claim that the curative instruction given by the court was
insufficient.

II. Pretrial Motion

¶28 Thornock next asserts that the trial court erred in denying
his pretrial motion to exclude his statement to police, “I don’t
steal, I kill.” Thornock argues that this statement was irrelevant
and unfairly prejudicial because it was likely to inflame the jury.
See Utah R. Evid. 402 (“Irrelevant evidence is not admissible.”);
id. R. 403 (“The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . .
unfair prejudice . . . .”).

¶29 First, he argues that the statement should have been
excluded as irrelevant. However, on appeal, he contests only one
of the relevant purposes identified by the State: he asserts that
the statement was not relevant to rebut his alibi because he did
not end up relying on the alibi defense involving his ex-wife and
did not call her as a witness. He does not address the other two
relevant purposes asserted by the State, and most notably, he
does not address the trial court’s determination that the
statement was relevant because Thornock “denie[d] that he stole
. . . anything” and that it would be “relevant for that reason and
that reason alone” even if Thornock elected not to call his ex-
wife as a witness. Thus, he has failed to carry his burden of
persuasion with respect to his relevance argument. See Chard v.
Chard, 2019 UT App 209, ¶ 35, 456 P.3d 776 (“We will not reverse

20180869-CA 9 2020 UT App 138
 State v. Thornock

a ruling of the district court that rests on independent alternative
grounds where the appellant challenges fewer than all of those
grounds.” (quotation simplified)).

¶30 Thornock further asserts that it was an abuse of the trial
court’s discretion to admit the testimony because it was unfairly
prejudicial. But taken in context, there is nothing about the
statement that would lead the jury to take the statement at face
value. As the trial court noted, if the statement was, “‘I just kill,’
then that would be prejudicial to the point where it needs to be
excluded.” But since Thornock “goes on to explain . . . what he
meant,” i.e., that he causes damage to his family by his actions,
“that takes care of any prejudicial effect.”

¶31 For these reasons, the trial court did not exceed its
discretion in denying Thornock’s motion to exclude the
statement.

III. Inherent Improbability

¶32 Thornock next asserts that the court erred in denying his
motion for directed verdict. This argument turns on his assertion
that Wife’s testimony was inherently improbable under State v.
Robbins, 2009 UT 23, 210 P.3d 288. 2 Specifically, he argues that

2. The State argues that Thornock did not adequately preserve
this issue for appeal in his directed verdict motion. See State v.
Skinner, 2020 UT App 3, ¶ 29, 457 P.3d 421 (“A defendant who
wants a trial court to disregard a witness’s testimony under
Robbins before, or in connection with, undertaking a sufficiency-
of-the-evidence review must make that request known to the
trial court so that the court has an opportunity to rule on the
issue.”). We acknowledge that Thornock’s motion was far from
clear on this point, as his objections were grounded in a general
assertion that Wife lacked credibility and had a motivation to
lie—concerns that hardly demonstrate inherent improbability, as
we explain in our analysis. See infra ¶¶ 33–34. Nevertheless, he
(continued…)

20180869-CA 10 2020 UT App 138
 State v. Thornock

Wife’s admission that she lied to police during her interviews;
the many inconsistencies between Wife’s first interview, her
second interview, and her trial testimony; and Wife’s animosity
toward Thornock by the time of trial demonstrate that her
testimony was so lacking in credibility as to be inherently
improbable.

¶33 Although Wife changed her story several times,
“inconsistencies . . . by themselves are insufficient to invoke the
inherent improbability exception.” State v. Prater, 2017 UT 13,
¶ 39, 392 P.3d 398 (quotation simplified). Moreover, a motive to
lie “goes to the weight and credibility of the testimony”; it does
not demonstrate that the testimony was inherently unreliable.
Id ¶ 41.

¶34 Thornock asserts that Wife wanted “to help the State
prosecute her husband” because they were going through a
divorce and that her testimony at trial could therefore not be
believed. But Wife also had a motive to lie to police during her
earlier interviews—at that time, she wanted to protect Thornock
from prosecution. There is nothing to definitively suggest that
Wife’s trial testimony was less credible than her earlier police
interviews. It was a matter for the jury to decide whether Wife’s
trial testimony or her earlier interviews were more credible. A
conclusion that Wife lied in her interviews to protect her
husband but later had a change of heart and decided to tell the
truth “does not run so counter to human experience that it

(…continued)
did argue “that the evidence that [Wife] presented or offered
should not be considered by the Court” due to its lack of
credibility and that “without [Wife], there is no evidence that
Mr. Thornock is involved in . . . any armed robbery.” By asking
the court to disregard Wife’s testimony on credibility grounds,
Thornock managed to preserve his inherent improbability
argument, though his argument was certainly not as explicit as it
could have been.

20180869-CA 11 2020 UT App 138
 State v. Thornock

renders [her] testimony inherently improbable.” See id. ¶ 39; see
also State v. LeVasseur, 2020 UT App 118, ¶¶ 27–28 (explaining
that a jury could reasonably believe that the defendant’s friend
initially lied to police to protect him but later changed her story
because she felt like the truth needed to come out).

¶35 Furthermore, Wife’s testimony was corroborated by
physical evidence. A couple who looked like Wife and Thornock
were captured on the Walmart surveillance video; the unusual
duct tape used in the crime, which Wife observed Thornock take,
was found on the aisle of the Walmart where the surveillance
camera recorded the couple shopping; and police found physical
evidence relating to the crime at the fire pit to which Wife
directed them. “[U]nder Robbins and Prater, an inherent
improbability claim will necessarily fail where any evidence
corroborates the witness’s testimony” by providing “a second
source of evidence for at least some of the details of the witness’s
story.” State v. Skinner, 2020 UT App 3, ¶¶ 31, 34, 457 P.3d 421;
see also LeVasseur, 2020 UT App 118, ¶¶ 29–31. Because there is
significant evidence corroborating Wife’s testimony, Thornock
cannot succeed on his improbability claim. And because Wife’s
testimony supported the verdict, the district court did not err in
denying Thornock’s motion for directed verdict.

IV. Collateral Estoppel

¶36 Finally, Thornock argues that the trial court should have
considered his Fourth Amendment argument and should not
have rejected it on grounds of collateral estoppel. Thornock asks
us to review this issue for plain error, but he makes no attempt
to analyze the court’s collateral-estoppel decision within the
plain error framework. To the extent that he does address plain
error, his entire argument is devoted to rearguing the merits of
the underlying Fourth Amendment issue, which is irrelevant to
our examination of the collateral estoppel issue. Thornock’s
collateral estoppel arguments are therefore inadequately briefed,
and we decline to consider them. See State v. Thomas, 961 P.2d
299, 304 (Utah 1998) (“It is well established that a reviewing

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 State v. Thornock

court will not address arguments that are not adequately
briefed.”).

CONCLUSION

¶37 Thornock invited any error in the court’s curative
instruction and therefore cannot contest the adequacy of that
instruction on appeal. Further, the trial court did not exceed its
discretion in admitting the “I kill” statement from Thornock’s
interview with Detective. Thornock cannot establish that the
court erred in denying his motion for directed verdict, because
Wife’s testimony was not inherently improbable. Finally, we
decline to address the court’s collateral estoppel ruling because
Thornock inadequately briefed the issue. Accordingly, we affirm
Thornock’s conviction.

20180869-CA 13 2020 UT App 138