2016 UT App 120

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

DEBBRA JO CLARK,

Appellant.

Memorandum Decision

No. 20140955-CA

Filed June 3, 2016

Third District Court, West Jordan Department

The Honorable Terry L. Christiansen

No. 131401488

Lori J. Seppi and Heather J. Chesnut, Attorneys

for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys

for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Memorandum 

Decision, in which JUDGE MICHELE M. CHRISTIANSEN and SENIOR 

JUDGE PAMELA T. GREENWOOD concurred.1

VOROS, Judge:

¶1 This is a shoplifting case. Surveillance video showed 

defendant Debbra Jo Clark and a friend (Friend) arriving at a 

supermarket together but entering the store separately. A lossprevention officer testified without contradiction that Clark 

entered the store, picked up some picture-hanging hooks, put 

them into her otherwise empty purse, and headed for the exit. At

 

1. Senior Judge Pamela T. Greenwood sat by special assignment 

as authorized by law. See generally Utah R. Jud. Admin. 11-

201(6).
State v. Clark

20140955-CA 2 2016 UT App 120

the same time, Friend was attempting to return similar picturehanging hooks without a receipt. At trial, Friend admitted that 

she had previously been convicted of theft by deception after she 

and Clark’s boyfriend (Boyfriend) had cashed some forged 

payroll checks. Friend also testified that she and Boyfriend were 

not charged jointly. The court admitted into evidence an exhibit

showing that Friend and Boyfriend had been charged jointly in 

the prior case. After deliberating for 26 minutes, the jury 

convicted Clark of retail theft, a third degree felony, and 

criminal trespass, a class B misdemeanor.

¶2 On appeal, Clark challenges her conviction for theft by

deception. She contends that the trial court erred in admitting

the exhibit under rules 402, 403, 802, 901, and 902 of the Utah 

Rules of Evidence and the Confrontation Clause of the United 

States Constitution. However, we do not consider the exhibit’s 

admissibility, because we conclude that its admission was 

harmless in any event.

¶3 Clark had a history at this store. In fact, a store lossprevention officer had previously told Clark that she was 

banned from entering any of the store’s properties “for the rest 

of her life.” So when the officer saw Clark walk into the store, 

she called the police. The officer then continued to watch Clark 

throughout Clark’s trip through the store. She saw Clark select

some picture-hanging hooks, put them in her purse, and head 

for the exit. Clark then saw the officer for the first time.

According to the officer, Clark, with a look of “pure panic,” spun 

around and went right back in, took everything out of her purse,

and “ditched it on a shelf.” When confronted by the officer, 

Clark said she did not know why she was at the store. The 

officer informed her that she had trespassed, to which Clark

responded, “I didn’t steal anything.” When Clark opened her 

purse, it was completely empty, without even a wallet inside. 

Police arrived and arrested Clark.
State v. Clark

20140955-CA 3 2016 UT App 120

¶4 Meanwhile, Friend was attempting to return some 

medication for which she had receipts, and some picturehanging hooks for which she had no receipt. The loss-prevention 

officer questioned but released Friend, telling her never to come 

back.

¶5 At trial, Friend was the only defense witness. She testified 

that she and Clark had gone to the store to buy food for dinner

and that she had entered the store first because Clark needed 

to settle her dog in the car before going inside. On crossexamination, the prosecutor asked Friend about an unrelated 

incident in which Friend and Boyfriend had been prosecuted for

passing forged payroll checks. Friend acknowledged that she 

had pled guilty to theft by deception in connection with that 

incident.

¶6 None of the foregoing evidence is challenged on appeal. 

Clark’s challenge goes only to admission of an exhibit consisting

of the criminal information and arrest warrant in Friend’s theftby-deception case. At trial, the prosecutor asked Friend if she 

had been charged with Boyfriend. Friend said they “weren’t 

charged together” and that there “was some mix-up in [her] 

court case” because they “never had trial together, never had 

court together.” The prosecutor then offered the exhibit, which 

showed that Friend and Boyfriend had indeed been charged 

together for forgery and that Boyfriend had been “twice before 

convicted of Theft.” At that point, the judge asked Friend, “Were 

you jointly charged with [Boyfriend]?” After Friend again 

denied that they were, the court admitted the exhibit into 

evidence.

¶7 Clark claims that the trial court erred in admitting the 

exhibit. However, an evidentiary error “cannot result in 

reversible error unless the error is harmful.” State v. Hamilton, 

827 P.2d 232, 240 (Utah 1992); see also Utah R. Evid. 103(a) (“A 

party may claim error in a ruling to admit or exclude evidence 
State v. Clark

20140955-CA 4 2016 UT App 120

only if the error affects a substantial right of the party . . . .”).

“[H]armless error is an error that is sufficiently inconsequential 

that there is no reasonable likelihood that it affected the outcome 

of the proceedings.” State v. Evans, 2001 UT 22, ¶ 20, 20 P.3d 888.

¶8 A claim of constitutional error stands on different footing. 

If Clark had preserved her Confrontation Clause claim at trial, 

and if she could establish a constitutional violation on appeal, 

the burden would shift to the State to demonstrate that the error 

was harmless beyond a reasonable doubt. See State v. McCallie,

2016 UT App 4, ¶ 12, 369 P.3d 103 (citing Brecht v. Abrahamson, 

507 U.S. 619, 630 (1993); Chapman v. California, 386 U.S. 18, 24 

(1967); and State v. Calliham, 2002 UT 86, ¶ 45, 55 P.3d 573). On

the other hand, if Clark did not preserve her Confrontation 

Clause claim at trial, and must rely on the plain error doctrine on 

appeal, the burden remains with her to demonstrate prejudice, 

just as with ordinary, non-constitutional error. See State v. Bond, 

2015 UT 88, ¶ 44, 361 P.3d 104 (“[W]e hold that unpreserved 

federal constitutional claims are not subject to a heightened 

review standard but are to be reviewed under our plain error 

doctrine.”).

¶9 Clark did not preserve her Confrontation Clause claim at 

trial. A party may challenge an evidentiary ruling on appeal

only if the party preserved the challenge at trial by timely 

objecting to the ruling on “the specific ground” asserted on 

appeal. See Utah R. Evid. 103(a). Clark did not identify the 

Confrontation Clause as “the specific ground” of any objection 

at trial. She did not cite the Confrontation Clause; invoke her 

right to confront the witnesses against her; cite Crawford v. 

Washington, 541 U.S. 36 (2004), or any other well-known 

Confrontation Clause case; or even mention the United States

Constitution. And although “a hearsay objection is not sufficient 

to preserve a Confrontation Clause argument for appeal,” In re

D.V., 2011 UT App 241, ¶ 9, 265 P.3d 803, Clark did not lodge a 

hearsay objection either. Because Clark did not preserve her 
State v. Clark

20140955-CA 5 2016 UT App 120

Confrontation Clause claim, she can prevail on appeal only 

under a plain error analysis. Under that analysis, as with 

preserved claims of non-constitutional error, she bears the 

burden of demonstrating prejudice. See Bond, 2015 UT 88, ¶ 44.

¶10 Consequently, for all her claims on appeal, Clark can 

prevail only by demonstrating prejudice, that is, by “showing 

that, absent the error, there is a reasonable likelihood of a more 

favorable outcome for the appellant, or phrased differently, our 

confidence in the verdict is undermined.” State v. Powell, 2007 

UT 9, ¶ 21, 154 P.3d 788 (citation and internal quotation marks 

omitted). “In making this determination, we consider a host of 

factors including, among others, the importance of the 

[evidence] to the prosecution’s case and the overall strength of 

the State’s case.” State v. Hamilton, 827 P.2d 232, 240 (Utah 1992).

¶11 Clark argues that admission of the exhibit unfairly 

prejudiced her because it “painted Clark’s good friend . . . and 

boyfriend . . . as dishonest thieves and repeat criminals, who had 

stolen not just inexpensive retail items but large amounts of 

cash.” The exhibit included Friend’s full name and aliases, as 

well as other identifying information; it detailed the checkcashing scheme, including that Friend acted with the purpose to 

defraud and cashed a check for nearly $1,000; it identified the 

scheme as a third degree felony; and it included a probable cause 

statement supporting the issuance of an arrest warrant. It also 

included an arrest warrant stating, among other things, that the 

magistrate had reasonable grounds to believe that Friend would 

not appear on a summons. All of this evidence, Clark argues, 

invited the jury to find her guilty by association.

¶12 We do not agree that Clark has shown a reasonable 

likelihood of a more favorable outcome had the exhibit not been 

admitted. First, far from being important to the State’s case, the 

exhibit was peripheral and largely cumulative. It never mentions 

Clark at all. It does show that Friend was engaged in unrelated 
State v. Clark

20140955-CA 6 2016 UT App 120

criminal activity. But Friend herself let that cat out of the bag 

when she described the check-cashing scheme for the jury.

¶13 In addition, beyond naming both Friend and Boyfriend in 

the same document, none of the aspects of the exhibit that Clark 

highlights on appeal were highlighted at trial. In fact, no one at 

trial referenced any part of the exhibit except to note that the 

State charged both Friend and Boyfriend and that the State

charged them with a third degree felony. But Friend admitted 

from the start that she and Boyfriend were involved in the same 

check-cashing scheme. So in that respect, as Clark herself notes, 

the exhibit did not undermine Friend’s testimony, but instead 

“corroborated [Friend’s] testimony that she was convicted due 

to her involvement in the check-cashing scheme” and that 

Boyfriend “was involved in the same scheme.” As for the third 

degree felony charge, at Clark’s request, the court instructed the

jury that Friend had been convicted of class A misdemeanor 

theft by deception, not third degree felony forgery. Aside from 

never being mentioned at trial, much of the content of the exhibit 

that Clark complains of on appeal appears in dense text, some of 

it on page four of the four-page exhibit. It strains credulity to 

believe that the jury spent any of its 26 minutes of deliberation 

combing through the fine print of this exhibit to find her guilty 

by association.

¶14 Besides, the jury had no need to find Clark guilty by 

association; the direct evidence of her guilt was strong. The lossprevention officer, who knew Clark from prior encounters,

testified as an eyewitness to every aspect of Clark’s conduct 

supporting the retail theft charge, including the fact that Clark 

was carrying an empty purse. No evidence at trial controverted 

the officer’s testimony. Only Friend testified for the defense; she 

claimed that Clark had come to buy “stuff for dinner.” But Clark 

visited only the home improvement and the seasonal aisles, not 

the grocery section, and in any event had nothing in her purse 

with which to pay for groceries. Also, Friend was detained in the 
State v. Clark

20140955-CA 7 2016 UT App 120

act of returning picture-hanging hooks—the very sort of item 

that Clark had shoplifted.

¶15 On this record, the admission of an exhibit that included 

some information that made the defense witness look like a 

criminal does not undermine our confidence in the jury’s verdict. 

Because admission of the exhibit was harmless, and because 

Clark did not preserve her Confrontation Clause challenge, we 

need not determine whether the trial court admitted the exhibit 

in violation of any rule of evidence or of the Confrontation 

Clause. We express no opinion on those questions.

¶16 The judgment is affirmed.