2017 UT App 161

THE UTAH COURT OF APPEALS

SALT LAKE CITY,

Appellee,

v.

RAFAEL REYES-GUTIERREZ,

Appellant.

Opinion

No. 20150755-CA

Filed August 24, 2017

Third District Court, Salt Lake Department

The Honorable Vernice S. Trease

No. 141911985

Melissa G. Stirba, Attorney for Appellant

Simarjit S. Gill and Curtis M. Tuttle, Attorneys

for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES

STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN concurred.

1

POHLMAN, Judge:

¶1 After his first trial ended in a mistrial granted on his own 

motion, Defendant Rafael Reyes-Gutierrez was retried and

convicted of one count of retail theft, a class A misdemeanor. 

Reyes-Gutierrez appeals his conviction on double jeopardy 

grounds, asserting that the prosecutor goaded him into seeking a 

mistrial in the initial proceeding, and retrial was therefore 

constitutionally barred. We affirm.

 

1. Judge Stephen L. Roth participated in this case as a member of 

the Utah Court of Appeals. He retired from the court before this 

decision issued.
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BACKGROUND

The First Trial

¶2 Reyes-Gutierrez left a retail store without paying for a 

pair of shoes he had placed in his shopping bag. The City 

charged Reyes-Gutierrez with retail theft under Utah Code 

section 76-6-602 and enhanced the charge from a class B to a 

class A misdemeanor based on his prior theft convictions. See 

Utah Code Ann. § 76-6-412(1)(c)(iii) (LexisNexis Supp. 2016) 

(providing that theft of property valued less than $500 is 

punishable as a class A misdemeanor if the defendant was twice 

convicted of other theft offenses within ten years of the present 

offense).

¶3 Several days before Reyes-Gutierrez’s first trial, defense 

counsel notified the prosecutor that she was unable to view the

copy of the store’s surveillance video that the City had produced 

in discovery. The prosecutor tried to view his copy of the same 

video but discovered it also did not work. When the prosecutor 

asked the store’s loss prevention supervisor if he could get 

another copy, he was told the store no longer had the video. The 

prosecutor told defense counsel that because he could not get the 

video to work, he would not be using it at trial.

¶4 The City’s first witness at trial was an asset protection 

associate who testified that he observed Reyes-Gutierrez try to 

leave the store without paying for the shoes. On crossexamination, the associate explained that he observed the theft 

through the store’s video surveillance system. When asked if he 

brought a video recording of the incident to court, he stated that 

he did not but that he previously gave one to the police. On 

further examination by both parties, the associate provided 

additional testimony about his familiarity with the store’s video 

files and its ability to preserve video recordings.

¶5 The City next called the Salt Lake City police officer who 

investigated the theft. He testified on direct examination that he 

did not recall whether he had reviewed video surveillance 
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footage of the theft. On cross-examination, the officer testified 

that he had received a copy of the video from the store asset 

protection associate but that he did not bring a copy of the video 

to court.

¶6 After the officer’s testimony, the jury was excused for 

lunch. During a conference with the court, the City’s attorneys 

expressed concern that defense counsel’s cross-examination of 

the witnesses suggested that there was a video recording of the 

theft that the City had either lost or withheld and that the City 

had acted improperly. The prosecutor stated: “I think it would 

be appropriate to notify the jury that there is a video, the 

prosecution provided it to the defense, [and] neither side has 

been able to make it work.” The prosecutor also questioned 

whether it would be appropriate to call defense counsel to testify 

about whether the City gave the defense a copy of the video and 

whether she could get it to play.

¶7 The trial court agreed that the impression had been left 

that there was a video “hanging out somewhere” and told the 

attorneys that they would “have to figure out a way to put it 

before the jury as evidence” because the court could not instruct 

the jury about evidence unless the parties stipulated to an 

instruction. The City’s attorneys indicated their preference for a 

stipulated instruction, stating that “otherwise [the City will] 

have to call [defense counsel] to testify.” The trial court told the 

parties to discuss how they wanted to proceed, stating that “it

wouldn’t be the first time that a lawyer has called another 

lawyer who is on the case as a witness.”

¶8 During the ensuing recess, the City learned that ReyesGutierrez did not intend to testify. Defense counsel also told the 

City that Reyes-Gutierrez would stipulate to a jury instruction 

regarding the video. However, just before court resumed, 

defense counsel changed course and told the prosecutor that she 

would not stipulate to the City’s proposed instruction.

¶9 After the break, and before any further discussion about 

the video, the prosecutor raised a concern with the court 
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regarding defense counsel’s opening statement. Defense counsel 

had told the jury that the evidence would show that ReyesGutierrez “wasn’t trying to take the shoes without paying for 

them,” and this case was about a “simple human error.” The 

prosecutor argued that no evidence had been provided to that 

effect and that, in light of Reyes-Gutierrez’s intention not to 

testify, “either a mistrial would be appropriate or else . . . the 

City should be able to present evidence [of prior convictions] 

contrary to the assertion.” Defense counsel objected to both 

alternatives, and the prosecutor submitted the issue without 

further argument. The court denied the City’s request.

¶10 Defense counsel then asked the trial court to address the 

possibility of her being called to testify about the video. The 

prosecutor weighed in, explaining that the parties “had a 

stipulation before the lunch break,” but as the proceeding 

resumed “it was unstipulated and so [they were] left having to 

figure out how to deal with it from there.” Defense counsel then 

argued that the issue of the video was irrelevant, and if the City 

attempted to call her, she would “have to move for a mistrial at 

that point.”

¶11 Before the City responded, the trial court commented

that, “if the defendant stipulates to a mistrial,” the court would 

grant it. The court expressed the view that because the jury had 

been left with the impression that the City had chosen not to use 

or had lost the video, “it may be necessary for the City to put on 

evidence about the videotape, that the videotape was turned 

over to the defense, [and] that it didn’t work.” In response, the 

prosecutor suggested that the City might be able to call someone 

else from defense counsel’s office to testify that the defense had

received the video, and the court and the prosecutor discussed 

other possible alternatives to calling defense counsel as a 

witness. Defense counsel reiterated that she would move for a 

mistrial if called to testify.

¶12 After a brief recess, the prosecutor informed the court that 

no agreement had been reached and that he would be calling 

defense counsel to testify. Defense counsel objected and again 
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stated that if the City tried to call her, she would ask for a 

mistrial. The court then informed the parties that it was “wholly 

appropriate” for either the prosecutor or defense counsel, or 

both of them, to testify about the video and their knowledge 

about its functionality. Defense counsel proposed that the police 

officer be recalled, but the court and the prosecutor agreed that 

he could not testify about what had been given to the defense.

¶13 Following some additional discussion, the court stated 

that it might allow defense counsel to be called as a witness 

unless there was someone else from her office who could testify 

about the video. The court then asked, “Are you moving for a 

mistrial?” Defense counsel repeated that she would move for a 

mistrial if the City called her as a witness. Co-counsel for the 

City then interjected, stating that rather than retry the case, the 

City could call the prosecutor as a witness. Defense counsel 

again objected.

¶14 At that point, the court asked for any last comments from 

the attorneys. Co-counsel for the City expressed her view that 

the City had attempted to do everything it could “to make this 

case go forward at this time,” including calling the prosecutor to 

testify about the video instead of defense counsel, but that the 

City would stipulate to a mistrial if a motion were made. 

Defense counsel responded, “I think if you are going to allow 

attorneys to be called as witnesses in this case then I am forced 

to move for a mistrial.”

¶15 The court stated that it would allow the prosecutor to 

testify and noted that defense counsel “has moved for a 

mistrial.” When asked if the City stipulated to the mistrial, cocounsel for the City stated, “[W]e’re willing to go forward to do 

whatever we need to go forward with trial today but it appears 

that we are at a stalemate and we will stipulate.” The court then 

confirmed Reyes-Gutierrez’s agreement and declared a mistrial. 

The prosecutor indicated the City’s intent to file a rule 404(b) 

notice and a motion in limine to avoid on retrial the issues that 

arose relating to the video and the mistake defense.
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The Motion to Bar Retrial

¶16 Reyes-Gutierrez filed a motion to bar retrial on double 

jeopardy grounds, arguing that the City goaded him into seeking 

a mistrial so that it could retry him under more favorable 

conditions. During a hearing on the motion, before the same 

judge who presided over the trial, the prosecutor asked to be 

placed under oath. He testified that after the court denied the 

City’s motion to either admit evidence relevant to the mistake 

defense or declare a mistrial, he “did not want a mistrial on the 

case, [he] wanted to finish the trial that day.”

¶17 The prosecutor also testified about how important

presenting evidence regarding the video was to the City. He 

described how he had met with the police officer during a break 

in the first trial to try to get the video to work and explained that 

he did not call the officer or the asset protection associate to 

testify about its functionality because neither one had the 

requisite knowledge. The prosecutor also explained that defense 

counsel would not tell him who else from her office had “tried to 

get the video to work” and that he thought she was the best 

witness “because she knew that she had been provided the video 

and she knew about [their] conversation.”

¶18 With regard to the City’s stipulation to the motion for a 

mistrial, the prosecutor explained that it became clear to him 

based on defense counsel’s strong objections that an appeal 

would be likely if either he or defense counsel were allowed to 

testify. He agreed to the mistrial to avoid a likely appeal and 

because the trial had “broken down.” Finally, the prosecutor 

testified that there was never “some sort of nefarious conspiracy 

or strategy” to trick Reyes-Gutierrez into a mistrial and that his 

decisions were not based on a suggestion from the City’s cocounsel that it would be better to restart and try the case another 

day.

¶19 Based on the prosecutor’s testimony and the trial judge’s 

recollection of the first trial, the court denied Reyes-Gutierrez’s 

motion and found the City’s intended purpose “in asking that 
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[the prosecutor] be allowed to testify was to get certain facts 

before the jury and not to obtain a mistrial and not to goad the 

defense into making a motion for a mistrial.” Additionally, the 

court found, “[T]his was a situation where the attorneys and 

frankly the Court . . . were doing their best to address fast 

moving issues . . . and the lawyers were doing their best . . . to 

make the best decisions that they could.” The court noted that 

the City’s stipulation to a mistrial “may have been a tactical 

decision to avoid appeal issues or other reasons” but that “the 

request to call [the prosecutor] as a witness and so forth [was]

not made . . . to goad the defendant into asking for a mistrial.”

The Second Trial

¶20 Reyes-Gutierrez was retried and found guilty by the jury 

and sentenced by the court. He appeals.

ISSUE AND STANDARD OF REVIEW

¶21 The sole issue on appeal is whether the trial court

erroneously concluded that the prosecutor did not intend to 

provoke Reyes-Gutierrez into requesting a mistrial. Whether a 

prosecutor intended to goad a defendant into moving for a 

mistrial is a question of fact, see Oregon v. Kennedy, 456 U.S. 667, 

675 (1982), and we will uphold a trial court’s factual 

determination regarding prosecutorial intent unless we conclude 

it is clearly erroneous, see State v. Levin, 2006 UT 50, ¶ 20, 144 

P.3d 1096; see also United States v. Valadez-Camarena, 163 F.3d 

1160, 1163 (10th Cir. 1998) (“[I]n the specific context of double 

jeopardy goading cases, we will uphold the trial court’s 

determination unless we conclude it is clearly erroneous.”).

¶22 A factual finding is clearly erroneous only if it is “against 

the clear weight of the evidence” or if, after looking at the record 

as a whole, we reach “a definite and firm conviction that a 

mistake has been made.” State v. Hinmon, 2016 UT App 215, ¶ 9, 

385 P.3d 751 (citation and internal quotation marks omitted).

“Our role is not to reweigh the evidence, but to determine only if 
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the appellant has demonstrated a lack of evidentiary support for 

the trial court’s findings.” Utah Dep’t of Transp. v. TBT Prop. 

Mgmt., Inc., 2015 UT App 211, ¶ 23, 357 P.3d 1032. The mere fact 

that this court might have reached a different result on the 

evidence presented does not justify setting aside the trial court’s 

findings. State v. Walker, 743 P.2d 191, 193 (Utah 1987).

ANALYSIS

I. Double Jeopardy

¶23 The prohibitions against double jeopardy contained in the

Fifth Amendment to the United States Constitution, the 

Utah Constitution, and the Utah Code protect a criminal 

defendant from repeated prosecutions for the same offense. See 

U.S. Const. amend. V; Utah Const. art. I, § 12; Utah Code Ann. 

§ 77-1-6(2)(a) (LexisNexis 2012); State v. Rudolph, 970 P.2d 1221, 

1230 (Utah 1998).2 “[P]art of this protection against multiple 

 

2. Reyes-Gutierrez refers in his brief to the double jeopardy 

protections afforded by both federal and state law, asserting that 

the respective provisions “contain . . . the same content.” 

(Citation and internal quotation marks omitted.) But see State v. 

Harris, 2004 UT 103, ¶ 23, 104 P.3d 1250 (“[T]he double jeopardy 

guarantees afforded defendants under the Utah Constitution are 

different from and provide greater protection than those 

afforded by the United States Constitution . . . .”). Because 

Reyes-Gutierrez does not argue for greater protection under the 

Utah Constitution than is afforded by the Fifth Amendment to 

the United States Constitution, and principally relies on case law 

interpreting double jeopardy protections under the Fifth 

Amendment, we will not engage in a separate state 

constitutional analysis. See id. (“[A]s a general rule, we will not 

engage in [a] state constitutional analysis unless an argument for 

different analyses under the state and federal constitution is 

(continued...)
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prosecutions . . . affords a criminal defendant a valued right to 

have his trial completed by a particular tribunal.” Oregon v. 

Kennedy, 456 U.S. 667, 671–72 (1982) (citation and internal 

quotation marks omitted). This protection against double 

jeopardy, however, ordinarily does not bar retrial where a 

mistrial is granted at the defendant’s request. See id. at 672–73;

State v. Manatau, 2014 UT 7, ¶ 10, 322 P.3d 739. This is because 

“[a] defendant’s motion for a mistrial constitutes ‘a deliberate 

election on his part to forgo his valued right to have his guilt or 

innocence determined before the first trier of fact.’” Kennedy, 456 

U.S. at 676 (quoting United States v. Scott, 437 U.S. 82, 93 (1978)).

¶24 But there is a narrow exception to this general rule. A

defendant who successfully moves for a mistrial “may invoke 

the bar of double jeopardy” to a second trial where the 

governmental conduct giving rise to the mistrial “was intended 

to provoke the defendant into moving for a mistrial.” Id. at 679; 

see also State v. Lafferty, 2001 UT 19, ¶ 149, 20 P.3d 342 (“[Double 

jeopardy] can bar retrial where a judge or prosecutor acts in bad 

faith with the intent to provoke a mistrial in order to provide the

prosecution with a more favorable opportunity to convict.”); 

State v. Pearson, 818 P.2d 581, 584 (Utah Ct. App. 1991) (stating 

that double jeopardy bars retrial “where bad faith conduct by 

the trial court or prosecutor was intended to provoke a 

mistrial”). Even prosecutorial misconduct that is harassing or 

overreaching, although sufficient to warrant a mistrial, will not 

bar a second trial absent such intent. Kennedy, 456 U.S. at 675–76; 

State v. Trafny, 799 P.2d 704, 709 (Utah 1990). This standard 

requires a trial court to examine the subjective intent of the 

prosecutor and make a finding of fact. Kennedy, 456 U.S. at 675. 

While the United States Supreme Court has acknowledged that 

this standard is “not entirely free from practical difficulties,” the 

standard is “manageable . . . to apply,” allowing trial courts to 

 

(...continued)

briefed.” (second alteration in original) (citation and internal 

quotation marks omitted)).
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“[i]nfer[] the existence or nonexistence of intent from objective 

facts and circumstances.” Id.

II. Prosecutorial Intent

¶25 Reyes-Gutierrez contends that the trial court clearly erred 

in finding that the prosecution did not intentionally provoke him 

into moving for a mistrial. “[T]he burden of overturning factual 

findings is a heavy one.” Brown v. State, 2013 UT 42, ¶ 69 n.63, 

308 P.3d 486 (citation and internal quotation marks omitted). To 

succeed on appeal, Reyes-Gutierrez cannot “simply restate or 

review evidence that points to an alternate finding or a finding 

contrary to the trial court’s finding of fact.” See Ostermiller v. 

Ostermiller, 2010 UT 43, ¶ 20, 233 P.3d 489 (citation and internal 

quotation marks omitted). Rather, to show clear error, he must 

identify the supporting evidence and explain why the trial 

court’s factual finding is nonetheless against the clear weight of 

the evidence. See Brown, 2013 UT 42, ¶ 37; State v. Shipp, 2005 UT 

35, ¶ 20, 116 P.3d 317.

¶26 Here, after hearing argument on Reyes-Gutierrez’s 

motion to bar retrial and the sworn testimony of the prosecutor, 

the trial court found that the City did not goad the defense into 

seeking a mistrial. The court determined that the City asked to 

have the prosecutor testify to put certain facts before the jury 

relating to the store surveillance video and not to goad the 

defense into moving for a mistrial. Reyes-Gutierrez contends 

that these findings are clearly erroneous. He argues that “the 

objective facts and circumstances surrounding the first trial 

show the City’s intent to provoke [his] mistrial motion,” and that 

the trial court’s findings—made without the benefit of the trial 

transcript—were against the clear weight of the evidence. We 

disagree.

¶27 Contrary to Reyes-Gutierrez’s contention, the record 

supports the trial court’s findings that rather than trying to goad 

the defense into moving for a mistrial, the prosecutor was 

attempting to educate the jury about the functionality of the

video. The trial court’s findings were supported by the sworn 
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testimony of the prosecutor as well as the prosecutor’s efforts to 

avoid a mistrial and the manner in which the circumstances 

unfolded during the initial proceeding.

¶28 At the hearing on Reyes-Gutierrez’s motion to bar retrial, 

the prosecutor offered to testify, under oath and subject to crossexamination, to enable the trial court to assess his credibility. 

While under oath, the prosecutor repeatedly affirmed that he 

had no intention of goading the defense into seeking a mistrial. 

He explained that after his own mistrial motion was denied, he 

“did not want a mistrial on the case” and “wanted to finish the 

trial that day.” He testified that it was important to him that the

jury understood that the City had provided the store 

surveillance video to the defense and was not hiding anything. 

He believed the best way to accomplish that goal was to call 

defense counsel to testify about the video and her conversations 

with the prosecutor, but he was also willing to testify.

¶29 The trial court implicitly found the prosecutor to be 

credible, accepting his testimony that he did not intend to goad 

Reyes-Gutierrez into requesting a mistrial. Reyes-Gutierrez 

concedes that the trial court may consider the testimony of the 

prosecutor in determining prosecutorial intent, and 

acknowledges that this court must give due regard to the trial 

court’s opportunity to judge the prosecutor’s credibility, but 

argues that the prosecutor’s denial of intent to provoke a mistrial 

is not dispositive. While we agree that a trial court is not 

required to blindly accept a prosecutor’s testimony as true, the 

trial court properly considered the prosecutor’s sworn testimony 

in light of the attendant circumstances in determining 

prosecutorial intent, and we owe considerable deference to that 

determination. See Oregon v. Kennedy, 456 U.S. 667, 680 (1982) 

(Powell, J., concurring) (recognizing the relevance of a 

prosecutor’s testimony on the question of intent); Taft v. Taft, 

2016 UT App 135, ¶ 44, 379 P.3d 890 (recognizing the 

considerable deference owed to the “trial court’s discretion to 

weigh the evidence and accept what it finds to be most credible 

and reject or give less weight to the rest”).
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¶30 In addition, the trial court did not base its findings solely 

on the prosecutor’s testimony. Rather, the court also relied on its 

firsthand observation of the events as they unfolded during the 

first trial, and its findings are consistent with those events.

¶31 After the jury had been excused for lunch, the prosecutor 

expressed the need to develop evidence to show that the City 

provided a copy of the video to Reyes-Gutierrez but that neither 

side could get the video to play. He first asked for a jury 

instruction on the issue, but when the trial court stated that an 

instruction would require defense counsel’s stipulation, the 

prosecutor suggested calling defense counsel to testify while the 

City’s co-counsel suggested that there might be other witnesses 

who could testify. The trial court instructed counsel to discuss 

the issue, stating that “it wouldn’t be the first time that a lawyer 

has called another lawyer who is on the case as a witness.”

¶32 During the lunch recess that followed, defense counsel 

indicated that she would stipulate to a jury instruction but 

withdrew that stipulation shortly before court resumed. Once 

back on the record, defense counsel raised the issue of whether 

she could be called to testify regarding the video, stating that if 

she were called she would move for a mistrial. Before the City 

responded, the court stated that it would declare a mistrial if 

Reyes-Gutierrez consented to it. Rather than insisting on calling 

defense counsel (and thereby immediately securing a mistrial), 

the prosecutor continued to explore other options. He speculated 

that perhaps another person in defense counsel’s office could 

testify about receipt of the video, and the court took a brief 

recess so that the parties could decide how to proceed.

¶33 When the parties returned, the City repeated its intention 

to call defense counsel to testify, and defense counsel again 

stated that she would move for a mistrial if so called. Rather 

than simply accept the mistrial, the City resisted and suggested 

that it call the prosecutor to testify instead. Defense counsel 

again objected and stated that she would move for a mistrial if 

the court allowed either attorney to testify. The trial court stated 

that it would allow the prosecutor to testify and asked the City if 
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it stipulated to a mistrial. The City stated that it preferred to 

proceed, but because of the impasse would so stipulate.

¶34 The prosecutor later explained that he could not call 

someone else from defense counsel’s office to testify because 

defense counsel would not reveal who else (if anyone) had 

attempted to play the video. Similarly, although he considered 

other alternatives, he was the only one from his office who could 

testify about the City’s efforts to play the video and the fact that 

the City had provided a copy of the video to the defense.

¶35 These objective facts support the trial court’s 

determination that rather than seeking to goad the defense into 

moving for a mistrial, the prosecutor was “doing [his] best to 

address fast moving issues” and looking for alternatives to 

resolve the issue short of a mistrial. If the prosecutor’s sole 

objective was to secure a mistrial as Reyes-Gutierrez contends, 

the prosecutor presumably would not have sought defense 

counsel’s stipulation to a jury instruction and would have agreed 

to a mistrial the first time defense counsel suggested it.

¶36 Reyes-Gutierrez invites us to disregard this evidence, 

contending that the City’s failed motion for a mistrial earlier in 

the trial “is an objective and persuasive indicator that the City 

wanted the first trial to end in a mistrial.” He states that 

“[w]ithout another avenue through which it could have 

remedied its deficient preparation for trial, including to rebut the 

defense of mistake, the City engaged in a strategy that it was 

well-aware would provoke a mistrial motion from ReyesGutierrez.”

¶37 While we agree that the fact that the City moved for its 

own mistrial could support a finding of prosecutorial intent to 

provoke a mistrial, it does not compel us to conclude that the 

trial court clearly erred in reaching a different conclusion. “Trial 

courts are accorded wide latitude in determining factual 

matters,” Valcarce v. Fitzgerald, 961 P.2d 305, 314 (Utah 1998)

(plurality opinion), and Reyes-Gutierrez is effectively asking us 

to reweigh conflicting evidence and draw a different conclusion. 
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But Reyes-Gutierrez “may not simply reargue [his] position 

based on selective excerpts of evidence presented to the trial 

court.” ProMax Dev. Corp. v. Mattson, 943 P.2d 247, 255 (Utah Ct. 

App. 1997).

¶38 Moreover, we do not agree with Reyes-Gutierrez’s

assertion that after the City’s motion for a mistrial was denied, 

the prosecutor then devised a strategy to goad him into moving 

for a mistrial. To the contrary, the City suggested calling defense 

counsel as a witness before it was told that Reyes-Gutierrez was 

not going to testify. Thus, the City’s expressed intent to call 

defense counsel as a witness to testify about the video was not a 

plan hatched in response to the denial of the City’s mistrial 

motion. And even after the trial court denied the City’s mistrial 

motion, the prosecutor did not immediately raise the issue. 

Rather it was defense counsel who asked the court to address 

whether it would allow the City to call her to testify, 

preemptively announcing that if called she would move for a 

mistrial. Given this sequence of events, we see no clear error in 

the trial court’s determination that the prosecutor was working 

“to address fast moving issues” rather than attempting to 

provoke a mistrial.

¶39 Finally, Reyes-Gutierrez argues that the trial court’s 

factual findings are not entitled to deference because they are 

inconsistent with the actual facts as reflected in the trial 

transcript. In particular, Reyes-Gutierrez argues that it is 

irreconcilable to find that the prosecutor did not intend to 

provoke a mistrial “when the City had actively stipulated to 

defense counsel’s motion for a mistrial before such motion was 

even made.” He insists that the City’s stipulation to a mistrial 

before a motion was made “indicates the City foresaw [its] 

decision would provoke [him] into moving for a mistrial.”

¶40 While it is true that the City stipulated to a mistrial before 

Reyes-Gutierrez officially moved for one, by the time the City 

noted its stipulation, the writing was on the wall. The parties 

and the court had discussed the issue at some length, and 

defense counsel unequivocally and repeatedly stated that if she 
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were called as a witness to testify about the video, she would 

move for a mistrial. The City then proposed that the prosecutor 

be called to testify to avoid retrying the case, and defense 

counsel stated that she “would object to that as well” as “wholly 

inappropriate.” It was only then that the City indicated that it 

would stipulate to a mistrial if a motion were made, and, even 

after making that offer, the City continued to express willingness 

to compromise by having the prosecutor testify in place of 

defense counsel. The fact that the City anticipated a motion that 

defense counsel had repeatedly promised does not undermine 

our confidence in the trial court’s findings.

CONCLUSION

¶41 We conclude that the record supports the trial court’s 

finding that the prosecutor did not intentionally provoke the 

defense into seeking a mistrial. Accordingly, we uphold the trial 

court’s order denying Reyes-Gutierrez’s motion to bar retrial 

and affirm his conviction.