2020 UT App 56

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

JAMES ROBERT DUNNE,

Appellant.

Opinion

No. 20180646-CA

Filed April 9, 2020

Second District Court, Farmington Department

The Honorable Thomas L. Kay

No. 171701160

Scott L. Wiggins, Attorney for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys

for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY 

concurred.

POHLMAN, Judge:

¶1 In 2018, a jury convicted James Robert Dunne of retail 

theft. During trial, Dunne testified as the defense’s primary 

witness, denying the allegations of theft. Dunne contends that 

the State improperly questioned him about plea negotiations in 

the case, arguing that the trial court exceeded its discretion in 

failing to grant a mistrial on that basis. We affirm.
State v. Dunne

20180646-CA 2 2020 UT App 56

BACKGROUND1

¶2 One night in March 2017, Dunne and his friend (Friend) 

drove together to a store intending to steal some items. Friend 

carried a blanket-covered car seat, which he put into a shopping 

cart before entering the store. Dunne, on the other hand, 

retrieved a shopping cart upon entering the store.

¶3 Once inside, Dunne and Friend did not shop together. 

Friend visited the electronics and the hardware departments

and ultimately exited the store without paying for some items, 

which he had surreptitiously placed in the car seat under the 

blanket.

¶4 For his part, Dunne went to the infant and pharmacy 

departments, where he placed a large box of diapers and a 

humidifier into his cart. After both items were in his cart, but 

before approaching the registers at the front of the store, Dunne 

“fumbl[ed] in his pockets for a moment” and retrieved a piece of 

paper. Dunne then left the store without paying for either item. 

As he was leaving, one of the store’s greeters (Greeter) followed 

him, twice asking to see his receipt. Rather than stop, Dunne 

quickly walked toward his car, waving a piece of paper and 

stating to Greeter, “I don’t have to stop.”

¶5 Greeter followed Dunne to his car and wrote down its

license plate number. Greeter then reported the incident to one 

of the store’s loss prevention associates (Associate). Associate 

reviewed the video surveillance of both Dunne and Friend and 

 

1. On appeal from a jury verdict, we view the evidence in a light 

most favorable to that verdict and recite the facts accordingly. 

State v. Goins, 2017 UT 61, ¶ 3 n.1, 423 P.3d 1236. “We present 

conflicting evidence only as necessary to understand issues 

raised on appeal.” Id. (cleaned up). 
State v. Dunne

20180646-CA 3 2020 UT App 56

observed their activities in the store, including their failure to 

pay for the items they took with them.

¶6 Approximately two weeks later, Associate observed 

Friend enter the store with a woman. Both were detained by law 

enforcement for stealing merchandise from the store on that 

occasion and were taken to the loss prevention office. Associate 

questioned Friend about the earlier theft and the identity of the 

person with him. Friend was not sure about his companion’s last 

name but identified him as “Jimmy.”

¶7 About a month later, Associate observed and 

photographed Dunne at one of the store’s other locations in 

Utah. She testified that he wore the “same exact clothing, the 

same hoodie and the same hat” as he had during the theft. She 

later learned Dunne’s identity and provided the information to 

the police.

¶8 The State charged Dunne with one count of retail theft.2

Shortly before trial, the court held a hearing requested by 

defense counsel based on the expectation that Dunne would 

enter a guilty plea to the charge. However, counsel explained at 

 

2. As defined in the Utah Code,

A person commits the offense of retail theft when 

he knowingly: (1) Takes possession of, conceals, 

carries away, transfers or causes to be carried away 

or transferred, any merchandise displayed, held, 

stored or offered for sale in a retail mercantile 

establishment with the intention of retaining such 

merchandise or with the intention of depriving the 

merchant permanently of the possession, use or 

benefit of such merchandise without paying the 

retail value of such merchandise . . . .

Utah Code Ann. § 76-6-602(1) (LexisNexis 2017).
State v. Dunne

20180646-CA 4 2020 UT App 56

the hearing that Dunne had decided not to accept the State’s plea 

offer after all, and trial was rescheduled.

¶9 At trial, Greeter and Associate testified for the State.

Greeter testified about his encounter with Dunne, while 

Associate testified to Greeter’s report, her review of the 

surveillance video of the events, and her subsequent encounters 

with both Friend and Dunne. Additionally, during Associate’s 

testimony, the jury was shown clips from the video surveillance 

captured by the store, which, among other things, showed 

Dunne exiting the store without stopping at the registers to pay.3

¶10 Friend also testified on behalf of the State, which had 

given him use immunity4 to testify about the incident with 

Dunne. Friend testified that he and Dunne had driven to the 

store together on the night in question, that they were going to 

the store “to steal,” and that afterward they drove away from the 

 

3. In the video exhibits admitted during trial, Dunne is portrayed 

as walking completely around the register area to the front of the 

store and ultimately toward an exit, without stopping to pay.

4. “A witness who refuses, or is likely to refuse, on the basis of 

the witness’s privilege against self-incrimination to testify or 

provide evidence or information in a criminal investigation . . . 

may be compelled to testify or provide evidence . . . after being 

granted use immunity with regards to the compelled testimony 

or production of evidence or information . . . . Testimony, 

evidence, or information compelled . . . may not be used against 

the witness in any criminal or quasi-criminal case, nor any 

information directly or indirectly derived from this testimony, 

evidence, or information, unless the testimony, evidence, or 

information is volunteered by the witness or is otherwise not 

responsive to a question.” Utah Code Ann. § 77-22b-1(1)(a), (2)

(LexisNexis 2017).
State v. Dunne

20180646-CA 5 2020 UT App 56

store together. He also confirmed that Dunne had stolen the 

diapers and the humidifier.

¶11 Dunne testified as the defense’s primary witness. He 

testified on direct examination that he purchased the diapers and 

the humidifier for Friend’s baby and that he showed his receipt 

to Greeter when he exited the store. When asked where the 

receipt was, Dunne stated that he lost it. He also denied going to 

the store to steal and testified that he was not aware Friend had 

stolen anything.

¶12 During cross-examination, when asked by the State 

whether “we can agree you don’t want to get into trouble,” 

Dunne stated that he would “take [the] blame” if what he had 

done was wrong but that he knew he had “bought those two 

items.” And when questioned about whether he had “lied before 

to keep [him]self from getting into trouble in criminal cases,” he

admitted to pleading guilty to charges for felony theft and 

giving false information to a police officer. Dunne then testified 

on re-direct that he pleaded guilty to both crimes because he had 

committed them. But when asked by defense counsel why he 

did not plead guilty to the theft in the present case, Dunne 

explained that it was because he “did not steal” the items.

¶13 On re-cross, the following exchange took place:

Q: . . . Mr. Dunne, you stated that in the past 

you’ve pled guilty when you’re guilty, but you’re 

not pleading guilty now because you’re saying 

you’re not guilty?

A: I’m not guilty.

Q: . . . Isn’t it true in this case you were going to 

plead guilty until the State wouldn’t give you the 

sentence you wanted?
State v. Dunne

20180646-CA 6 2020 UT App 56

A: No, I—no, I—

Q: Isn’t it true you came into court and you were 

going to plead guilty, but because I wouldn’t give 

you what you wanted, you changed position?

Defense counsel then objected, asserting that the questions went 

to inadmissible plea negotiations. The trial court immediately 

sustained the objection.

¶14 Outside of the jury’s presence, defense counsel moved 

for a mistrial based on the exchange. Counsel argued that 

asking Dunne why he changed his mind about pleading guilty 

in this case was “improper under the Rules of Evidence” and 

that the question “should not have been posed.” Counsel also 

contended that the question was “very prejudicial to Mr. 

Dunne” because it led the jury “to believe that [Dunne] is guilty 

of the crime and tried to plead guilty.” And counsel asserted 

that a curative instruction would not be sufficient to “fix” the 

harm it caused.

¶15 In resolving the motion for a mistrial, the court framed 

the issue as whether the State’s question about why Dunne chose 

not to plead guilty was “by itself enough to cause a mistrial” 

because “there was a question and no answer.” The court 

ultimately concluded that the issue did not “rise[] to a mistrial.” 

It also declined the State’s suggestion that a curative instruction 

would be appropriate, stating that giving the jury a curative 

instruction would “just put more attention on the issue” and 

“make people think more about it.”

¶16 The jury convicted Dunne as charged. He was sentenced 

to a suspended prison term, a short jail term, and a three-year 

probation, and he was ordered to pay restitution to the store.

Dunne appeals.
State v. Dunne

20180646-CA 7 2020 UT App 56

ANALYSIS

¶17 On appeal, Dunne argues that the trial court erred by not 

granting a mistrial on the basis of the State’s plea-negotiation 

questioning during its re-cross examination. Dunne argues that 

the plain language and the policy considerations behind rule 410 

of the Utah Rules of Evidence5 establish that the line of

questioning was impermissible. He also argues that the 

questioning prejudiced his case because it was “inconsistent 

with [his] claim of innocence at trial” and “implied that [his] 

guilt was a foregone conclusion.”

¶18 A trial court’s denial of a mistrial motion is reviewed for 

abuse of discretion. State v. Wach, 2001 UT 35, ¶ 45, 24 P.3d 948. 

A trial court “should not grant a mistrial except where the 

circumstances are such as to reasonably indicate that a fair trial 

cannot be had and that a mistrial is necessary in order to avoid 

injustice.” State v. Duran, 2011 UT App 254, ¶ 33, 262 P.3d 468 

(cleaned up). “Because a district judge is in an advantaged 

position to determine the impact of courtroom events on the 

 

5. Rule 410 of the Utah Rules of Evidence provides:

[E]vidence of the following is not admissible 

against the defendant who made the plea or 

participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) a statement made during a proceeding on either 

of those pleas under Federal Rule of Criminal 

Procedure 11 or a comparable state procedure; or

(4) a statement made during plea discussions with 

an attorney for the prosecuting authority if the 

discussions did not result in a guilty plea or they 

resulted in a later-withdrawn guilty plea.

Utah R. Evid. 410(a).
State v. Dunne

20180646-CA 8 2020 UT App 56

total proceedings, once a district court has exercised its 

discretion and denied a motion for a mistrial,” an appellate court 

“will not reverse the court’s decision unless it is plainly wrong in 

that the incident so likely influenced the jury that the defendant 

cannot be said to have had a fair trial.” State v. Allen, 2005 UT 11, 

¶ 39, 108 P.3d 730 (cleaned up).

¶19 In evaluating whether a trial court’s denial of a mistrial 

motion is “plainly wrong” in circumstances involving a 

potentially improper remark, our courts have looked to the

totality of the evidence against the defendant as well as the 

context of the improper statement. See id. ¶¶ 39–44 (cleaned up) 

(explaining that a mistrial is not required where the allegedly 

improper statement is “not intentionally elicited, is made in 

passing,” and is otherwise vague and lacking detail); Wach, 2001 

UT 35, ¶¶ 44–46 (trial court did not exceed its discretion in 

denying a mistrial motion based on victim’s isolated comment 

during direct examination suggesting she was generally afraid of 

the defendant given the “totality of the evidence” against the 

defendant).

¶20 In this respect, our courts have held that a mistrial is not 

required where, given the totality of the evidence, the potentially 

improper statement was not likely to have influenced the jury’s 

decision. See State v. Butterfield, 2001 UT 59, ¶ 47, 27 P.3d 1133 

(concluding that the trial court did not abuse its discretion in 

denying a mistrial motion where, in light of the totality of the 

evidence against the defendant, he had “failed to show that there 

is a substantial likelihood that the jury would have found him 

not guilty had the improper statement not been made”); Wach, 

2001 UT 35, ¶ 46 (stating that, given the “totality of the evidence 

against [the defendant], and the reasonable inferences therefrom, 

it was not [the victim’s] improper remark . . . that caused the jury 

to convict [the defendant] of aggravated kidnapping, but rather 

[the victim’s] recounting of [the defendant’s]” violence in 

perpetrating the crime); State v. Yalowski, 2017 UT App 177, ¶ 22, 
State v. Dunne

20180646-CA 9 2020 UT App 56

404 P.3d 53 (concluding that a potentially improper statement 

“did not prejudice” the defendant where the “totality of the 

testimony presented” amply supported the defendant’s 

conviction); State v. Milligan, 2012 UT App 47, ¶¶ 8–9, 287 P.3d 1 

(concluding that an improper statement about the defendant’s 

tattoo, while “potentially prejudicial and inflammatory,” did not 

warrant a mistrial in light of the “strong evidence” presented as 

to the defendant’s guilt).

¶21 Applying these principles, we conclude that the trial court 

did not exceed its discretion in denying Dunne’s motion for a 

mistrial. Assuming without deciding that the prosecutor’s 

question about Dunne’s motive for not taking a plea in this case 

was improper, Dunne has not shown that the court’s denial of 

his mistrial motion was “plainly wrong” in that the question “so 

likely influenced the jury” that Dunne “cannot be said to have 

had a fair trial.” See Allen, 2005 UT 11, ¶ 39 (cleaned up). Rather, 

given the totality of the evidence against him and the context in 

which the allegedly improper question occurred, the court was 

within its discretion to conclude that the plea-negotiation 

reference did not affect Dunne’s right to a fair trial. See

Butterfield, 2001 UT 59, ¶ 47; Wach, 2001 UT 35, ¶ 45; Duran, 2011 

UT App 254, ¶ 33.

¶22 Here, the evidence against Dunne was overwhelming. See

Wach, 2001 UT 35, ¶ 46; Yalowski, 2017 UT App 177, ¶¶ 21–22; 

Milligan, 2012 UT App 47, ¶¶ 8–9. The jury heard evidence from 

Greeter and Associate, whose combined testimonies reinforced 

each other in providing the jury a basis to conclude that Dunne 

exited the store without paying for the diapers and the 

humidifier. Additionally, during Associate’s testimony, the jury 

viewed numerous segments of the store’s video surveillance that 

not only confirmed the key aspects of Greeter’s testimony about 

his encounter with Dunne but also gave the jury visual evidence 

that Dunne failed to check out at any register and pay for the 

items in his cart before exiting the store. Finally, the jury also 
State v. Dunne

20180646-CA 10 2020 UT App 56

heard Friend’s testimony that he and Dunne went to the store on 

the night in question with the specific intent to steal and that 

Dunne had, in fact, stolen the diapers and the humidifier.

¶23 Additionally, the context in which the allegedly improper 

question occurred negates the likelihood that it influenced the 

jury’s decision to convict. See Allen, 2005 UT 11, ¶¶ 40–44; 

Yalowski, 2017 UT App 177, ¶¶ 18–20. As the court recognized, 

the plea-negotiation reference was made by the State through a 

question that Dunne did not substantively answer. In response 

to the State’s question about the reasons for his failure to plead 

guilty in this case (as opposed to previous cases), Dunne 

proceeded no further than stating, “No, I—no, I,” before defense 

counsel objected.

¶24 Moreover, the court immediately sustained Dunne’s

objection, and no further reference was made to the plea 

negotiations in this case. See Allen, 2005 UT 11, ¶ 43 (explaining 

that a reference did not require mistrial where, among other 

things, “no further attention was directed” to the subject of the 

statement or the statement itself); Duran, 2011 UT App 254, ¶ 36 

(noting, as evidence that a statement did not improperly 

influence the jury so as to require mistrial, that the “prosecutor 

did not follow up on the volunteered information with questions 

. . . or do anything else to call further attention to [the] issue” 

raised by the statement). Thus, even if the State sought through 

its question to elicit testimony from Dunne about the failed plea 

negotiations, due to counsel’s intervention and the court’s 

immediate resolution of the issue, the jury did not actually hear 

any such testimony.

¶25 In sum, given the strong evidence of guilt and the 

circumstances surrounding the prosecution’s question, we 

cannot agree that the jury was “so likely influenced” by the 

reference to the plea negotiations in the State’s question that the 

court was “plainly wrong” to deny Dunne’s mistrial motion. See
State v. Dunne

20180646-CA 11 2020 UT App 56

Wach, 2001 UT 35, ¶¶ 45–46 (cleaned up); see also Milligan, 2012 

UT App 47, ¶¶ 8–9. Rather, we agree with the trial court that the 

suggestion about Dunne’s guilt posed by the State’s 

plea-negotiation question did not rise to a level requiring a 

mistrial. Accordingly, we conclude that the trial court did not 

exceed its discretion by denying Dunne’s motion for a mistrial.

CONCLUSION

¶26 We affirm. Under the circumstances in this case, the trial 

court was within its discretion to conclude that the State’s 

attempt to elicit testimony from Dunne about the failed plea 

negotiations did not require declaring a mistrial.