State v. Steffen

2020 UT App 95

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JORDAN VINCENT STEFFEN,
Appellant.

Opinion
No. 20180467-CA
Filed June 18, 2020

Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 151402886

Douglas J. Thompson and Bryson R. King, Attorneys
for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

HAGEN, Judge:

¶1 A jury convicted Jordan Vincent Steffen on two counts of
child endangerment, two counts of lewdness involving a child,
and one count of aggravated child sexual abuse. Steffen
challenges his convictions on multiple grounds, arguing that the
district court (1) abused its discretion by excluding evidence that
the alleged victim had previously been sexually abused, (2)
made two erroneous discovery rulings under rule 16 of the Utah
Rules of Criminal Procedure, and (3) abused its discretion by
denying his request for mistrial. We affirm.
 State v. Steffen

BACKGROUND 1

¶2 In October 2015, the State charged Steffen with two counts
of lewdness involving a child, eight counts of aggravated sexual
abuse of a child, one count of sodomy on a child, two counts of
endangerment of a child, one count of possession of drug
paraphernalia, one count of rape of a child, and one count of
tampering with a witness. The primary basis for these charges
centered on sexually abusive acts that the State alleged Steffen
committed against his girlfriend’s daughter, A.Z., when she was
between eleven and twelve years old.

¶3 At a preliminary hearing, A.Z. testified about the sexual
abuse Steffen committed but did not mention abuse by any other
individual. About a month after the hearing, Steffen moved to
admit evidence, under rule 412 of the Utah Rules of Evidence,
that A.Z.’s grandfather had previously sexually abused her (the
prior abuse evidence). According to Steffen, the prior abuse
evidence was relevant to “rebut [A.Z.’s] ‘sexual innocence
inference’ by establishing [her] degree of sexual knowledge at
the time the allegations were made.” 2 After holding an

1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.”
State v. Moore, 2019 UT App 159, n.1, 451 P.3d 298 (cleaned up).

2. “The sexual innocence inference refers to the thought process
a jury follows when it hears a young child testify about sexual
acts and matters that reveal an understanding of such acts
beyond the capacity likely at his or her age. A jury is likely to
assume that because the child is so young, he or she must be
innocent of sexual matters. Shocked by the child’s display on the
witness stand, the jury may then infer that the child could have
acquired such knowledge only if the charged offense of child
molestation is true.” Christopher B. Reid, Note, The Sexual
Innocence Inference Theory as a Basis for the Admissibility of a Child
(continued…)

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 State v. Steffen

evidentiary hearing at which A.Z. described her grandfather’s
abusive acts, the district court ruled that the prior abuse
evidence was inadmissible under rule 412. Although the court
noted that “evidence offered to rebut” the sexual innocence
inference was relevant, it concluded that the prior abuse
evidence should be excluded because the “acts committed by
[the grandfather] against the alleged victim . . . are so different
from those alleged in this case that they have minimal probative
value in rebutting the sexual innocence inference.”

¶4 Following its ruling on the prior abuse evidence, the
district court scheduled Steffen’s trial. A few weeks before trial,
however, Steffen moved for a continuance due to late
evidentiary disclosures by the State. Ultimately, the court
determined that the late disclosures prejudiced Steffen’s “ability
to prepare an adequate defense by the time scheduled for trial”
and granted a three-month continuance.

¶5 On the second day of the rescheduled trial, during
opening arguments, the State revealed that it intended to call
A.Z.’s mother (the mother) as a witness and that she would
testify that she had coerced A.Z. into not disclosing an act of
lewdness by Steffen to law enforcement. Despite an ongoing
obligation to disclose inculpatory evidence, the State had not
notified the defense about that fact. Upon objection from the
defense, the district court ordered “the State to disclose [to the
defense] all investigator notes or reports regarding statements of
A.Z. and [the] mother about the disclosure of [the lewd act] to
[the mother] and directions by [the] mother that A.Z. not make
disclosures” to law enforcement. The next day, the district court
declared a mistrial as a result of the State’s nondisclosure.

(…continued)
Molestation Victim’s Prior Sexual Conduct, 91 Mich. L. Rev. 827,
829 (1993).

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 State v. Steffen

¶6 In accordance with the district court’s earlier order, the
State emailed the defense “the factual portion of [its paralegal’s]
notes” taken during interviews with A.Z. and the mother. 3 The
next day, Steffen moved to compel the State to disclose all its
witness interview notes, arguing that allowing the State to have
“unfettered access” to witnesses’ factual statements without
disclosing the “notes on th[ose] factual assertions” to the defense
violated his right to due process. The court denied Steffen’s
motion to compel, reasoning that the complete interview notes
contained the prosecution’s core opinion work product and that
with disclosure of “the paralegal’s notes, [Steffen could] fairly
and effectively cross examine and confront [the mother] at trial.”

¶7 Shortly after the district court denied Steffen’s motion to
compel, the State filed a motion for specific discovery requesting
the “reports, notes, and recordings of any interviews or
investigations by the defense investigator(s), either of [Steffen’s]
witnesses, or the State’s witnesses.” After the time to oppose the
motion expired, the State filed a motion to compel discovery.
Steffen opposed the motion to compel, arguing that “the
attorney work product privilege” protected the items sought by
the State from disclosure. The court found that the State had
“shown good cause for the disclosure” of the requested
information and entered the following order:

During cross examination of any State witness,
Defendant shall disclose to the prosecutor any
report, note, or recording containing a prior

3. In the email, the State suggested that, “[b]ased on the court’s
suggestion,” it had “decided” to disclose the paralegal’s notes.
But the district court did not “suggest” that the interview notes,
excepting work product, be disclosed—it unequivocally ordered
disclosure. Accordingly, we view the disclosure of the
paralegal’s notes as being responsive to that order and not as a
voluntary disclosure by the State.

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 State v. Steffen

inconsistent statement made by that witness to the
defense investigator.

....

For each . . . witness [the defense decides to call],
Defendant shall disclose to the State all portions of
the investigator’s reports, notes, and recordings
which contain prior statements of that . . . witness.
This disclosure shall be made 10 days prior to trial.

¶8 Before the start of the new trial, Steffen again moved to
admit the prior abuse evidence, but this time offered a different
reason. In that motion, Steffen argued that the prior abuse
evidence was necessary to rebut one of the State’s expert
witnesses who would testify that A.Z. began cutting herself after
Steffen began abusing her. Steffen intended to rebut the expert’s
testimony by demonstrating that A.Z. began cutting herself in
response to the grandfather’s abuse and that her self-harm was
not attributable to Steffen. In response, however, the State said
that it would “not be asserting, either directly or indirectly, that
the physical evidence of A.Z.’s cutting injuries ‘originated with
the accused.’” After noting the State’s decision not to introduce
any evidence that A.Z. cut herself, the district court rejected
Steffen’s alternative argument that the prior abuse evidence was
admissible under rule 412.

¶9 Steffen’s trial began shortly thereafter. During the State’s
direct examination of A.Z., the State moved to introduce a
portion of a law enforcement interview with A.Z. that, according
to the State, had been edited to remove any mention of her
cutting or self-harm. The district court admitted the interview
and allowed it to be played to the jury. Toward the end of the
recording, A.Z. told the interviewer that she went to the
bathroom after an incident in which Steffen abused her. The
interviewer then asked, “What happened after you went to the
bathroom?” to which A.Z. responded, “I cut.”

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 State v. Steffen

¶10 In a later discussion with the district court and outside the
presence of the jury, the State apologized for its error in allowing
the “I cut” statement (the cutting statement) to be played for the
jury. The State averred that it was an innocent mistake caused by
a problem with its editing software, and Steffen accepted that
characterization of the incident. Nevertheless, Steffen moved for
dismissal due to “cumulative due process violations” or, in the
alternative, a mistrial. Steffen’s counsel reminded the court that
the State’s failure to make timely disclosures had previously
resulted in a continuance of the first trial and later in a mistrial.
Counsel then discussed how playing the cutting statement to the
jury prejudiced Steffen in multiple ways and “affect[ed] his
ability to have a fair trial.” The court declined to either dismiss
the case or declare a mistrial. However, the court did rule that
Steffen could admit the previously excluded prior abuse
evidence to rebut the “causal connection” that A.Z. “cut herself
because of [Steffen’s] sexual assault.” But despite finally being
authorized by the court to introduce the prior abuse evidence,
Steffen did not do so, asserting that the changed ruling came too
late to allow Steffen to present the necessary witnesses and
evidence.

¶11 At the conclusion of trial, the jury acquitted Steffen on ten
of the charged counts, but found him guilty on five: two counts
of lewdness involving a child, two counts of child
endangerment, and one count of aggravated sexual abuse of a
child. 4 Steffen now appeals.

ISSUES AND STANDARDS OF REVIEW

¶12 Steffen raises a number of issues on appeal. First, he
contends that the district court exceeded its discretion by

4. Earlier in the trial, the State had also voluntarily dismissed one
count of aggravated sexual abuse of a child.

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 State v. Steffen

excluding the prior abuse evidence. “We afford district courts a
great deal of discretion in determining whether to admit or
exclude evidence and will not overturn an evidentiary ruling
absent an abuse of discretion.” State v. Cuttler, 2015 UT 95, ¶ 12,
367 P.3d 981 (cleaned up). “But whether the district court
applied the proper legal standard in assessing the admissibility
of that evidence is a question of law that we review for
correctness.” Id. (cleaned up).

¶13 Next, Steffen contends that the district court issued two
erroneous discovery rulings under rule 16 of the Utah Rules of
Criminal Procedure. “While a [district] court is generally
allowed broad discretion in granting or denying discovery, the
proper interpretation of a rule of procedure is a question of law,
and we review the [district] court’s decision for correctness.”
State v. Spry, 2001 UT App 75, ¶ 8, 21 P.3d 675 (cleaned up).

¶14 Lastly, Steffen contends that the district court erroneously
denied his motion for mistrial. A district court’s decision to reject
a motion for mistrial is reviewed for abuse of discretion. State v.
Harris, 2004 UT 103, ¶ 21, 104 P.3d 1250.

ANALYSIS

I. Exclusion of the Prior Abuse Evidence

¶15 Steffen argues that the district court abused its
discretion by excluding the prior abuse evidence under rule 412
of the Utah Rules of Evidence. Rule 412 applies in “proceeding[s]
involving alleged sexual misconduct” and generally bars
evidence “that a victim engaged in other sexual behavior” or
that is “offered to prove a victim’s sexual predisposition.” Utah
R. Evid. 412(a). The rule also prohibits evidence concerning a
victim’s prior history of being sexually abused, see State v.
Tarrats, 2005 UT 50, ¶ 28, 122 P.3d 581 (holding that “prior
truthful rape claims are inadmissible” under rule 412), and it

20180467-CA 7 2020 UT App 95
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was on this basis that the district court excluded the contested
evidence in Steffen’s case.

¶16 Steffen notes that there are exceptions to rule 412, under
which a court may admit evidence of a victim’s sexual history if
it is “otherwise admissible” and falls within one of the following
categories: (1) “evidence of specific instances of a victim’s sexual
behavior, if offered to prove that someone other than the
defendant was the source of semen, injury, or other physical
evidence;” (2) “evidence of specific instances of a victim’s sexual
behavior with respect to the person accused of the sexual
misconduct, if offered by the defendant to prove consent or if
offered by the prosecutor;” or (3) “evidence whose exclusion
would violate the defendant’s constitutional rights.” Utah R.
Evid. 412(b). Although Steffen cites these exceptions on appeal,
he has not identified the exception that allegedly applies.
Because the first two exceptions are inapplicable to the facts of
this case, we assume that Steffen is arguing that exclusion of the
prior abuse evidence violated his constitutional rights—the third
exception. We further assume, based on Steffen’s arguments
about his “need for this evidence” and how its exclusion
“unfairly prejudice[d] the defense,” that he contends that the
exclusion violated his Sixth Amendment right to present a
defense. See State v. Thornton, 2017 UT 9, ¶ 74, 391 P.3d 1016
(explaining that multiple rights, including the right to
confrontation, are contained within the “right to present a
defense” under the Sixth Amendment (cleaned up)).

¶17 As our supreme court explained in Thornton, the “right to
present a defense is far from absolute.” Id. ¶ 76. The exclusion of
evidence under rule 412 violates that right only when the
exclusion is “arbitrary or disproportionate to the purposes” that
rule 412 was designed to serve. Id. (cleaned up). That standard is
met only where the application of rule 412 “significantly
undermined fundamental elements of [a] defendant’s defense.”
Id. ¶ 77 (cleaned up). Importantly, “it is not enough to show that
[rule 412] excludes favorable evidence.” Id. (cleaned up). Instead,

20180467-CA 8 2020 UT App 95
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a defendant “must demonstrate a weighty interest that is
significantly undermined” by rule 412’s exclusion of evidence.
Id. (cleaned up). Such a showing requires, “at a minimum, proof
that the evidence in question is essential to the presentation of a
defense.” Id. ¶ 78. Steffen has not met this “high bar.” See id.
¶ 77. 5

5. Steffen faults the district court for failing to undertake the two-
part, case-by-case balancing test previously adopted by this
court. See State v. Marks, 2011 UT App 262, ¶ 22, 262 P.3d 13.
Under that approach, this court weighed “the interests of the
defendant against those of the State under the facts and
circumstances of the particular case,” by assessing “both the
importance of the [prior abuse] evidence to an issue critical to
the defense and the extent to which exclusion of the evidence
will further the purposes of [rule 412].” Id. ¶ 23. This approach
was gleaned from Michigan v. Lucas, 500 U.S. 145 (1991), in which
the United States Supreme Court stated that rules restricting “a
criminal defendant’s rights to confront adverse witnesses and to
present evidence may not be arbitrary or disproportionate to the
purposes they are designed to serve.” Id. at 151 (cleaned up).
However, the Supreme Court has since explained that Lucas “did
not even suggest, much less hold, that it is unconstitutional to
enforce such a rule unless a case-by-case balancing of interests
weighs in favor of enforcement.” Nevada v. Jackson, 569 U.S. 505,
511 (2013). By adopting rule 412, the Utah Supreme Court has
already made a policy determination that the interests in
excluding evidence of a victim’s sexual history outweigh the
defendant’s interest in presenting such evidence except in
limited circumstances. Rather than attempting to rebalance those
interests on a case-by-case basis—an approach that has never
been endorsed by the Utah Supreme Court—we follow our
supreme court’s lead in State v. Thornton, 2017 UT 9, 391 P.3d
1016, and focus solely on whether the defendant has established
an exception to rule 412.

20180467-CA 9 2020 UT App 95
 State v. Steffen

¶18 Steffen asserts that the prior abuse evidence was relevant
to rebut the sexual innocence inference. 6 In other words, he
argues that A.Z.’s experience with prior sexual abuse was
“admissible to rebut the jury’s likely assumption that [she]
would not have such sexual knowledge but for the charged
abuse.” See State v. Marks, 2011 UT App 262, ¶ 33, 262 P.3d 13.
The district court agreed with Steffen that the prior abuse
evidence was relevant in that regard due to A.Z.’s young age.
But just because the prior abuse evidence may have been
relevant to rebutting the sexual innocence inference does not
mean that it was “essential to the presentation of a defense.” See
Thornton, 2017 UT 9, ¶ 78.

¶19 The district court concluded that, although the prior
abuse evidence was relevant to rebut the sexual innocence
inference, it lacked significant probative value given the facts of
this case. The prior abuse evidence would have shown that
A.Z.’s grandfather committed multiple abusive acts against her,
including touching her breasts and buttocks and shaving her
legs while she showered. And Steffen correctly notes that he was

6. Steffen also argues that the prior abuse evidence was relevant
to rebut any inference that A.Z. began cutting herself in response
to his sexually abusive behavior—an inference he contends was
created when the State accidentally played the cutting statement
to the jury. After that incident, however, the district court ruled
that Steffen could admit the prior abuse evidence for the
purpose of rebutting any such inference—although he ultimately
declined to do so. Steffen has not pointed us toward any
authority that would allow a defendant to challenge a district
court’s decision to exclude evidence where the court later
reversed itself and admitted the evidence (albeit later than the
defendant might have preferred). Accordingly, that specific issue
is moot. See Saunders v. Sharp, 818 P.2d 574, 577 (Utah Ct. App.
1991) (“Generally, when substantive issues are resolved prior to
appeal, the appeal is rendered moot.”).

20180467-CA 10 2020 UT App 95
 State v. Steffen

accused of, among other things, touching A.Z.’s breasts and
buttocks and inappropriately touching her while she showered.
But, although a full recounting of the allegations against Steffen
is not necessary here, Steffen was also accused of much more
egregious conduct, including digital penetration, attempted
fellatio, masturbation, and vaginal rape.

¶20 With these facts in mind, we consider whether admitting
the prior abuse evidence to rebut the sexual innocence inference
was essential to Steffen’s defense. We conclude that it was not
because (1) the State did not rely on the sexual innocence
inference at trial; (2) even if the jury made such an inference,
Steffen had other evidence at his disposal to rebut it; and (3) the
probative value of the prior abuse evidence was limited due to
A.Z.’s age and the dissimilarity between those acts and the
charged conduct.

¶21 First, the source of A.Z.’s sexual knowledge was not a
central issue at trial. Indeed, Steffen has not identified a single
instance at trial in which the State relied on the sexual innocence
inference. See State v. Rhodes, 2019 UT App 143, ¶ 25 n.2, 450 P.3d
1123 (rejecting argument regarding the sexual innocence
inference where the source of the victim’s sexual knowledge was
never placed in issue at trial); State v. Clark, 2009 UT App 252,
¶ 17, 219 P.3d 631 (concluding that the exclusion of rule 412
evidence did not violate the defendant’s Sixth Amendment
rights where “the prosecutor did not argue that [the victims]
lacked the sexual knowledge to fabricate the charges”); see also
Thornton, 2017 UT 9, ¶ 25 (noting that the prosecution did not
argue that a child of the victim’s age “could not have described
sex in the way she did unless she had been raped”). Because the
State did not rely on the sexual innocence inference as evidence
of guilt, the need to rebut that inference was less critical to
Steffen’s defense.

¶22 Second, to the extent that the jury may have drawn such
an inference on its own, Steffen was able to rely on other

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 State v. Steffen

evidence to explain how A.Z. could have acquired her sexual
knowledge. In closing, Steffen argued as follows:

[A.Z.] knew that her grandfather . . . , who had
abused her cousin, was no longer around. [A.Z.]
had crude talk with [another cousin and two other
individuals]. [A.Z.] was spending lots of time on
social media, particularly with Instagram. This is
an 11 or 12-year-old that has access to a phone and
the internet, and all kinds of things. I think it’s safe
to say that she probably knew a lot more about the
world at 11 years old than we ever did.

Despite the exclusion of the prior abuse evidence, Steffen was
able to present a plausible argument to rebut any inference that
A.Z. would have been unable to fabricate the allegations unless
Steffen had committed the charged acts. Cf. Thornton, 2017 UT 9,
¶¶ 80–83 (affirming the district court’s decision to exclude rule
412 evidence—on the basis that the defendant had “several other
means” to rebut the sexual innocence inference—because there
was no “foundation in the record for comparison of the rule 412
evidence with the alternative evidence cited by the district
court” (cleaned up)).

¶23 Third, even if the sexual innocence inference had been a
central issue at trial, the prior abuse evidence was not essential
to Steffen’s defense because it did little to rebut such an
inference. “In considering the probative value of the evidence of
a child victim’s [prior history of being abused] for purposes of
rebutting the sexual innocence inference, [district] courts first
consider the age of the child complainant at the time the child
describes the sexual assault.” State v. Ashby, 2015 UT App 169,
¶ 34, 357 P.3d 554 (cleaned up). Evidence offered to rebut the
sexual innocence inference is most probative when it would
demonstrate how a child victim obtained sexual knowledge
beyond his or her years. See Marks, 2011 UT App 262, ¶¶ 37–38
(explaining that “the probative value of evidence of a child’s

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 State v. Steffen

alternative source of sexual knowledge will be inversely
proportional to the child’s age” and that “there is less need to
explain the sexual knowledge of a teenage boy than that of a
younger child” (cleaned up)). District courts also consider the
probative value of a child victim’s prior history of being sexually
abused “with respect to his [or her] ability to fabricate the
current allegations by analyzing whether the prior [abuse] is
similar to that involved in the allegations against the defendant.”
Ashby, 2015 UT App 169, ¶ 35 (cleaned up). Given the nature of
the allegations against Steffen and A.Z.’s age, the prior abuse
evidence did not provide an alternative source for A.Z.’s
knowledge of the abuse she described.

¶24 Steffen argues that the prior abuse evidence was
extremely probative of A.Z.’s ability to fabricate the charges
against him because the allegations of abuse A.Z. made against
her grandfather “bore striking similarities” to the allegations
against Steffen. Although both sets of allegations included
conduct such as touching A.Z.’s breasts and buttocks and
touching her while she showered, that factually overlapping
portion formed only a fraction of the accusations against
Steffen. 7 Steffen was accused of far more lurid acts of sexual
abuse, and it is unclear how evidence that A.Z. had experienced
comparatively less egregious abuse in the past would have

7. We note that Steffen was ultimately acquitted of many of the
more heinous allegations made against him. But the district
court is required to rule on admissibility at the time of trial
without knowing whether the defendant will be convicted of
any of the charges. In deciding whether such evidence is
admissible, the district court must necessarily consider “whether
the prior [abuse] is similar to that involved in the allegations
against the defendant.” See State v. Ashby, 2015 UT App 169, ¶ 35,
357 P.3d 554 (cleaned up). On appeal, we review whether the
district court acted within its discretion at the time it made the
evidentiary ruling.

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 State v. Steffen

affected her ability to fabricate allegations involving significantly
more heinous conduct. See id. ¶¶ 36–37 (determining that the
probative value of a victim’s prior sexual experiences was low
because his past “sexual behavior with other children involved
oral stimulation with other males” rather than the “breast
stimulation or digital vaginal and anal penetration alleged” in
that case (cleaned up)); Marks, 2011 UT App 262, ¶ 41 (“[T]he
fact that [the victim] had simulated sexual intercourse with [his
sister] does not explain his ability to describe fellatio and
ejaculation.”). Certainly, “a limited sexual experience involving
inappropriate touching of [her] buttocks does not explain
[A.Z.’s] ability to describe sexual intercourse[,] fellatio,” or the
other sexual acts A.Z. accused Steffen of committing. See Marks,
2011 UT App 262, ¶ 40. Accordingly, the prior abuse evidence
had little probative value due to the dissimilarity of much of the
conduct alleged against Steffen and A.Z.’s grandfather.

¶25 In addition, the prior abuse evidence did not explain how
A.Z. obtained sexual knowledge beyond her years. A.Z. was
eleven years old when Steffen allegedly began abusing her and
was twelve years old at the time she reported the abuse to the
police. She accused Steffen of, among other things, graphic
sexual acts that would be beyond the knowledge of a typical
eleven- or twelve-year-old child. See State v. Budis, 593 A.2d 784,
792 (N.J. 1991) (“[W]e doubt that a jury would expect a nine-
year-old girl . . . to know the intricacies of oral and vaginal
sex.”). But the prior abuse evidence would not have established
an alternative source for A.Z.’s knowledge of such acts. Instead,
the prior abuse evidence could demonstrate only how A.Z.
might have obtained sexual knowledge that would enable her to
fabricate allegations that an adult touched her private parts.
Such allegations would not require sexual knowledge beyond
A.Z.’s years. See Commonwealth v. Rathburn, 532 N.E.2d 691, 708
(Mass. App. Ct. 1988) (explaining that a thirteen-year-old victim
did not demonstrate “extraordinary [sexual] knowledge” by
using terms such as “penis,” “butt,” “hard,” or “rubbing”
(cleaned up)). Because no advanced sexual knowledge was

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required for A.Z. to make the allegations against Steffen that
were similar in kind to the grandfather’s abuse, the probative
value of the prior abuse evidence based on A.Z.’s age was
minimal.

¶26 Given the relatively low probative value of the prior
abuse evidence, the State’s lack of reliance on the sexual
innocence inference, and his ability to rebut such an inference
with other evidence, Steffen has not established that the rule 412
evidence was essential to his defense. Therefore, the
constitutional exception to rule 412 does not apply, and the
district court acted within its discretion in excluding the prior
abuse evidence.

II. Discovery Rulings

¶27 Steffen next contends that the district court issued two
erroneous discovery rulings under rule 16 of the Utah Rules of
Criminal Procedure. First, he argues that, because the State
waived its work-product privilege to its witness-interview notes,
the court erred by denying his motion to compel full disclosure
of those notes. Second, he argues that the court erred by
requiring the defense to turn over privileged work product
when it granted the State’s motion to compel. We address each
argument in turn.

A. Steffen’s Motion to Compel

¶28 In relevant part, rule 16 of the Utah Rules of Criminal
Procedure requires prosecutors, upon request of the defense, to
disclose several enumerated items and “any other item of
evidence which the court determines on good cause shown
should be made available to the defendant in order for the
defendant to adequately prepare a defense.” Utah R. Crim. P.
16(a). However, “the court may at any time order that discovery
or inspection be denied, restricted, or deferred,” if the party
resisting discovery makes a sufficient showing. Id. R. 16(f). One

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 State v. Steffen

basis for such a showing is protection of a prosecutor’s work
product. See State v. Melancon, 2014 UT App 260, ¶ 14, 339 P.3d
151 (“The attorney-work-product doctrine generally protects the
work of prosecutors from the discovery process.”).

¶29 During Steffen’s first trial, the State revealed that the
mother would testify that she had coerced A.Z. not to disclose an
act of lewdness by Steffen to law enforcement interviewers—an
inculpatory fact that was previously unknown to the defense.
Before declaring a mistrial, the district court found that the State
should have disclosed that information because it fell “squarely”
within the defense’s prior discovery request with which the State
had voluntarily complied. See State v. Knight, 734 P.2d 913, 917
(Utah 1987) (“[W]hen the prosecution agrees to produce any of
the material requested, it must continue to disclose such material
on an ongoing basis to the defense.”). The court then ordered the
State to “disclose all investigator notes or reports regarding
statements of A.Z. and [the] mother about the disclosure of [the
lewdness incident] to [the mother] and directions by [the]
mother that A.Z. not make disclosures to [law enforcement]
interviewers.” However, the court indicated that it would not
“order the disclosure of [the prosecutor’s] notes because they
would be protected by the work product doctrine.”

¶30 In accordance with this order, the State sent the defense
an email containing the factual portions of its paralegal’s notes
taken during the mother’s interview. 8 The email noted that the
State was waiving any work-product privilege with respect to
the portion of notes disclosed. Steffen argues that by doing so,
the State waived its work-product privilege with respect to the
entirety of the notes taken during the mother’s interview and
incurred a continuing obligation to continue to disclose all notes

8. Although Steffen’s motion sought the notes from all the State’s
witness interviews, the focus of his motion was on the notes
taken during interviews with the mother.

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 State v. Steffen

taken by the prosecution team during witness interviews. See id.
at 916–17. We disagree.

¶31 By sending an email containing the factual portion of the
paralegal’s notes taken during the mother’s interview, the State
was merely complying with the district court’s order, which
explicitly exempted disclosure of the State’s privileged work
product. Complying with a court order by disclosing factual
information provided by a witness does not constitute a waiver
of the privilege regarding core opinion work product. See
Southern Utah Wilderness All. v. Automated Geographic Reference
Center, 2008 UT 88, ¶ 24, 200 P.3d 643 (distinguishing ordinary
factual work product from “core or opinion work product that
encompasses the mental impressions, conclusions, opinion, or
legal theories of an attorney or other representative of a party
concerning the litigation” and explaining that the latter “is
generally afforded near absolute protection from discovery”
(cleaned up)); see also In re EchoStar Commc’ns Corp., 448 F.3d
1294, 1302 (Fed. Cir. 2006) (“Work product waiver is not a broad
waiver of all work product related to the same subject matter
like the attorney-client privilege. Instead work-product waiver
only extends to factual or non-opinion work product concerning
the same subject matter as the disclosed work product.” (cleaned
up)). Nor did the State’s compliance with the court’s order cause
it to incur any new discovery obligations because its disclosure
of the paralegal’s notes was involuntary. See Knight, 734 P.2d at
917. Therefore, the court did not err by denying Steffen’s motion
to compel the production of all the State’s witness interview
notes.

B. The State’s Motion to Compel

¶32 Steffen also argues that the district court erred in granting
the State’s motion to compel because its order granted the State
access to the defense’s core opinion work product. Rule 16 of the
Utah Rules of Criminal Procedure provides in relevant part that
“[e]xcept as otherwise provided or as privileged, the defense

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 State v. Steffen

shall disclose to the prosecutor . . . any other item of evidence
which the court determines on good cause shown should be
made available to the prosecutor in order for the prosecutor to
adequately prepare the case.” Utah R. Crim. P. 16(c). To show
good cause, rule 16 requires only that the prosecution “establish
the materiality of the requested records to the case.” State v. Spry,
2001 UT App 75, ¶¶ 21, 23, 21 P.3d 675 (cleaned up). 9

¶33 In this case, the district court found that the State had
shown good cause for Steffen to disclose “investigator reports,
notes, and recordings” from witness interviews with both State
and defense witnesses. The court found that the notes from
interviews with prosecution witnesses contained protected work
product, but determined that the privilege would be waived if
Steffen intended to use those notes to impeach the witnesses on
cross-examination. The court similarly found that the notes from

9. As discussed below, the district court found that the State had
shown good cause for the defense to disclose “investigator
reports, notes, and recordings” from witness interviews with
both State and defense witnesses. But because those documents
contained protected work product, they were entitled to more
protection than the “good cause” requirement found in rule 16 of
the Utah Rules of Criminal Procedure. Protected work product is
discoverable “only upon a showing that the party seeking
discovery has substantial need of the materials and that the
party is unable without undue hardship to obtain the substantial
equivalent materials by other means.” Utah R. Civ. P. 26(b)(5);
see also id. R. 81(e) (“These rules of procedure shall also govern in
any aspect of criminal proceedings where there is no other
applicable statute or rule, provided, that any rule so applied
does not conflict with any statutory or constitutional
requirement.”). We need not address this issue here, however,
because the court determined that Steffen waived work-product
privilege and he does not directly challenge that determination
on appeal.

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 State v. Steffen

interviews with defense witnesses contained protected work
product, but determined that Steffen waived the privilege by
calling those witnesses and placing their credibility at issue.
Having made those determinations, the court ordered that
during cross-examination of any prosecution witness, Steffen
was to disclose any notes “containing a prior inconsistent
statement made by that witness to the defense investigator.” As
to the notes from the interviews with defense witnesses, the
district court ordered Steffen to disclose “all portions” of the
notes “which contain prior statements” by any witnesses that the
defense chose to call.

¶34 On appeal, Steffen does not directly challenge the district
court’s determination that he waived the work-product
privilege. Rather, he appears to challenge the breadth of the
court’s order, arguing that “if any waiver exists, it is only
relevant to any recorded statements made by the State’s
witnesses, not the notes and recordings of the individual
conducting the investigation or interview.” (Emphasis in
original.) Steffen argues that the court’s order allowed “the
mental impressions, opinions, and observations” of the defense
to be “scoured by prosecutors in search of statements affecting
. . . witnesses’ credibility.” We agree that certain language in the
court’s order permits such a broad reading.

¶35 With respect to the notes from interviews with defense
witnesses, the district court ordered Steffen to disclose only
those “portions” that contained prior witness statements. That
part of the court’s order required the defense to disclose only
factual work product rather than core opinion work product.

¶36 The court’s order relating to the notes from interviews
with prosecution witnesses, however, contained no such
limitation. Rather, that order required that, “[d]uring cross
examination of any State witness, [Steffen] shall disclose to the
prosecutor any report, note, or recording containing a prior
inconsistent statement made by that witness to the defense

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 State v. Steffen

investigator.” (Emphasis added.) Work product waivers must be
narrowly construed to apply to “factual or non-opinion work
product.” In re EchoStar Commc’ns Corp., 448 F.3d at 1302
(cleaned up); see also Southern Utah Wilderness All., 2008 UT 88,
¶ 24. To the extent that the order required disclosure of all notes
taken by the defense team during interviews with prosecution
witnesses, including those portions that contained core opinion
work product, it exceeded the court’s discretion.

¶37 But even assuming the order was overbroad, Steffen has
not demonstrated harmful error. See 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.”).
Pursuant to the district court’s order, Steffen was required to
turn over interview notes pertaining to prosecution witnesses
only if he used those notes to impeach a witness during cross-
examination. Because Steffen elected not to use those notes
during cross-examination, the notes were never disclosed.
Nonetheless, Steffen argues that the court’s order was not
harmless because it forced him to choose between (1) using
material collected by his investigator and disclosing core opinion
work product to the State, and (2) abandoning use of any of the
material to avoid disclosing privileged work product.

¶38 While we recognize that such a ruling could have a
chilling effect on the presentation of potentially exculpatory
evidence, it is impossible for us to gauge the impact of the
court’s ruling because Steffen never made a record of how he
would have used the notes but for the order. An error is
considered harmless unless the party seeking reversal can
establish “that there is a reasonable likelihood that the error
affected the outcome of the proceedings.” Brunson v. Bank of New
York Mellon, 2012 UT App 222, ¶ 3, 286 P.3d 934 (per curiam)
(cleaned up). And we have consistently refused to presume
prejudice where an appellant fails to provide a record that
would allow us to perform a harmless error analysis. See, e.g.,
West Valley City v. Coyle, 2016 UT App 149, ¶ 24 n.4, 380 P.3d 327;

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 State v. Steffen

State v. Siavashi, 2014 UT App 164, ¶ 2, 331 P.3d 1144 (per
curiam); Black v. Hennig, 2012 UT App 259, ¶ 16, 286 P.3d 1256;
Huish v. Munro, 2008 UT App 283, ¶ 9, 191 P.3d 1242. On this
record, we have no way to assess the significance of the
proposed impeachment evidence and whether its admission
would have altered the overall evidentiary landscape.

¶39 Steffen asks us to presume prejudice here because, he
contends, creating a sufficient record would have required him
to disclose protected work product. We disagree. Steffen could
have proffered only the factual portions of the notes that
contained the prosecution witnesses’ statements. Alternatively,
without disclosing any portion of the notes, he could have made
a record of the questions that he would have asked the
prosecution witnesses but for the court’s order. Either option
might have allowed us to review the potential impact of the
proposed impeachment evidence while still avoiding disclosure
of Steffen’s counsel’s “mental impressions, conclusions, opinion,
or legal theories.” See Southern Utah Wilderness All., 2008 UT 88,
¶ 24 (cleaned up). As it stands, however, the record does not
demonstrate that the notes contained any favorable evidence, let
alone evidence that would have affected the outcome of the case.
Therefore, Steffen has not established reversible error.

III. Mistrial

¶40 Finally, Steffen argues that the district court abused its
discretion by denying his motion for mistrial after the State
accidentally played the cutting statement for the jury. When a
district court refuses to grant a mistrial based on an improper
statement coming into evidence, the court does not abuse its
discretion where the “improper statement is not intentionally
elicited, is made in passing, and is relatively innocuous in light
of all the testimony presented.” State v. Allen, 2005 UT 11, ¶ 40,
108 P.3d 730. Based on these factors, we cannot conclude that the
district court exceeded its discretion by denying Steffen’s
motion.

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 State v. Steffen

¶41 First, the cutting statement was not “intentionally
elicited.” See id. The State explained, outside the jury’s
presence, that it had inadvertently played the cutting
statement due to a mistake with its editing software. The
court accepted that representation when ruling on Steffen’s
motion, and Steffen does not challenge that factual finding
on appeal.

¶42 Next, the cutting statement was “made in passing.” See
id. The cutting statement consisted of only two words—“I cut”—
in the final seconds of a video played during the State’s
examination of A.Z. No testimony was elicited regarding
the meaning or significance of the statement and no
other evidence was introduced regarding self-harm by A.Z.

¶43 Finally, the accidental introduction of the cutting
statement was “relatively innocuous.” See id. Over the course
of a six-day trial, the jury heard graphic testimony accusing
Steffen of numerous instances of sexual crimes against a
young child. The video containing the cutting statement
was played only once early in the trial and was never
referenced again. Given the nature of the evidence
presented over the course of the six-day trial, we have no
trouble concluding that the two-word cutting statement—
played a single time without explanation—was “relatively
innocuous.”

¶44 In context, it is highly unlikely that the jury understood
or attributed any significance to the cutting statement. But,
on the off chance that any juror understood the reference
and considered A.Z.’s self-harm as evidence that she
had suffered sexual abuse, the district court allowed Steffen
to introduce the prior abuse evidence to explain that the
cutting may have been triggered by the abuse perpetrated by
her grandfather. Although Steffen declined the opportunity
to mitigate the cutting statement’s prejudicial effect, the

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 State v. Steffen

court acted well within its discretion in offering an alternative
remedy and denying Steffen’s motion for mistrial. 10

10. Steffen also appeals the district court’s denial of his
alternative motion to dismiss the charges against him. Given that
Steffen cannot establish that the district court abused its
discretion in denying the lesser sanction of a mistrial, he
certainly cannot establish that the extreme sanction of dismissal
was warranted based on the presentation of the cutting
statement alone. See United States v. Blue, 384 U.S. 251, 255 (1966)
(explaining that dismissal of charges is a “drastic” step that, if
frequently used at the expense of other remedies, would
“increase to an intolerable degree interference with the public
interest in having the guilty brought to book”). We recognize
that Steffen’s motion to dismiss was based more broadly on
what he characterized as “cumulative due process violations,”
including the State’s repeated failure to disclose evidence to
which the defense was entitled. But each of those instances was
contemporaneously addressed and remedied by the court.
Specifically, the court granted first a continuance and then a
mistrial in response to the State’s failure to disclose evidence and
witness testimony to the defense. And in response to the cutting
statement, the court ruled that Steffen could use the prior abuse
evidence to rebut any negative inferences that statement caused.
Dismissal of criminal charges is a drastic step, and a court does
not abuse its discretion by denying a motion to dismiss when it
has already granted sufficient remedies on a situation-by-
situation basis. See United States v. Koubriti, 435 F. Supp. 2d 666,
681 (E.D. Mich. 2006) (holding that dismissal for prosecutorial
misconduct requires a defendant to show “demonstrated and
longstanding prosecutorial misconduct as well as a showing of
substantial prejudice,” and that showing cannot be made unless
“the earlier misconduct was not remedied” (cleaned up)), aff’d
509 F.3d 746 (6th Cir. 2007); see also United States v. Soto-Beniquez,
356 F.3d 1, 30–31 (1st Cir. 2003) (affirming the denial of a motion
(continued…)

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 State v. Steffen

CONCLUSION

¶45 We hold that the district court acted within its discretion
by excluding the prior abuse evidence. With respect to the
motions to compel, Steffen has not demonstrated that he was
entitled to further disclosure of the State’s interview notes nor
has he demonstrated that the district court’s order compelling
disclosure of the defense interview notes was harmful. Lastly,
the district court did not abuse its discretion by denying Steffen’s
motion for mistrial. Accordingly, we affirm Steffen’s convictions.

(…continued)
to dismiss based on the prosecution’s repeated discovery
violations where “the district court wisely addressed the
prosecution’s failures to comply with discovery deadlines on a
situation-by-situation basis in order to prevent or remedy any
prejudice that those violations may have had on the
defendants”).

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