2016 UT App 151

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

DAWN ANN DRAPER-ROBERTS,

Appellant.

Opinion

No. 20141057-CA

Filed July 21, 2016

Third District Court, Salt Lake Department

The Honorable Katie Bernards-Goodman

No. 141902608

John B. Plimpton and Steffen Soller, Attorneys

for Appellant

Simarjit Gill and Craig N. Stanger, Attorneys

for Appellee

SENIOR JUDGE PAMELA T. GREENWOOD authored this Opinion, in 

which JUDGE J. FREDERIC VOROS JR. and SENIOR JUDGE JUDITH M.

BILLINGS concurred.

1

GREENWOOD, Senior Judge:

¶1 Defendant Dawn Ann Draper-Roberts appeals after a jury 

found her guilty of theft, a class A misdemeanor. See Utah Code 

Ann. §§ 76-6-404, -412(1)(c)(i) (LexisNexis 2012). She argues that 

the trial court should have granted one or more of her several

motions for a mistrial. We agree and therefore reverse and 

remand for a new trial.

 

1. Senior Judges Judith M. Billings and Pamela T. Greenwood sat 

by special assignment as authorized by law. See generally Utah R. 

Jud. Admin. 11-201(6).
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20141057-CA 2 2016 UT App 151

BACKGROUND2

¶2 Defendant worked at a craft store, where she found a 

customer’s purse in a shopping cart. Rather than immediately 

locking the purse in the store’s safe, she put it in the store’s 

classroom where there were locking cabinets and where she was 

working that day. 

¶3 When the customer realized her purse was missing, she 

returned to the store and asked three employees if they had seen 

the purse. None of the employees reported knowing where the 

purse was. One of the employees—the acting manager—used 

the store’s radio headset system to ask if any employees had 

found the purse. No one responded. The acting manager 

recorded the customer’s contact information, and the customer 

left. The acting manager testified that she spoke to Defendant 

within a few minutes of the customer’s departure, asking if she 

had seen the purse. According to the acting manager’s 

testimony, Defendant indicated that she had not. 

¶4 Meanwhile, at home, the customer used the Find My 

iPhone application on her iPad to determine the location of her 

iPhone, which was inside her missing purse. The application 

showed that her phone was still inside the craft store. She used

the application to set off an alarm on her phone, and her 

husband informed police that she was returning to the store to 

look for her purse. 

¶5 Around the same time, back at the store, Defendant 

brought the acting manager the customer’s purse, from which 

 

2. ‚On appeal, we recite the facts from the record in the light 

most favorable to the jury’s verdict and present conflicting 

evidence only as necessary to understand issues raised on 

appeal.‛ State v. Bluff, 2002 UT 66, ¶ 2, 52 P.3d 1210 (citation and 

internal quotation marks omitted).
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20141057-CA 3 2016 UT App 151

the sound of the iPhone’s alarm was emitting. The acting 

manager put the purse in the store safe. Police arrived, took 

possession of the purse, and ‚continued the investigation to 

obtain facts to write a report.‛ When the customer again 

returned to the store, police returned her purse to her; ‚nothing 

was missing from or disturbed in it.‛ 

¶6 The officer who investigated the case questioned 

Defendant about where she found the purse and worked with 

her to obtain the store’s surveillance video. The video showed 

that Defendant had found the purse in a different area of the 

store than where she had initially told the officer. At trial, the 

officer described Defendant as uncooperative, hostile, and 

suspicious.3

¶7 Also at trial and during the officer’s testimony, it became 

apparent that the State possessed video retrieved from the 

officer’s body camera (the body cam video) that Defendant had 

not been provided as part of the State’s discovery. Defendant 

moved for a mistrial, arguing that ‚the video shows potentially 

exculpatory evidence‛ and that defense counsel ‚would have 

prepared for this trial in a completely different manner if [he] 

had the video available beforehand like *he+ should have had.‛ 

Defense counsel further explained that even if the video was not 

 

3. Importantly, for reasons that are discussed in detail below, see 

infra ¶¶ 21–24, the officer also specifically testified that he ‚had 

asked [Defendant] where she found the purse, at which point 

she really didn’t want to talk to *him+ about it. She just started 

asking *him+ questions.‛ He also testified, ‚And then I asked her

for just some basic information. Okay, what’s your name, so I 

can put this down? She is -- she didn’t want to give me her name 

at first.‛ Video taken from the officer’s body camera, however, 

tells a different story—a fact critical to our determination of 

harm and our ultimate reversal. 
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exculpatory and was in fact incriminating, ‚it would change the 

way that [he] ask[ed] questions, how [he] approach[ed] the case, 

how [he] advise[d] [his] client as to her rights, [and] whether or 

not she should take a plea offer.‛ 

¶8 The trial court denied Defendant’s motion for a mistrial 

and instead gave ‚[d]efense counsel the evening and the rest of 

the afternoon to go over th[e] video as many times as he 

need[ed] to, to queue it up to where he need[ed] to . . . , and to be 

ready for cross-examination [the next day].‛ The court then 

adjourned for the day at 2:45 p.m., with proceedings set to begin 

at 10:00 a.m. the following morning. When trial recommenced, 

Defendant renewed her motion for a mistrial, which the trial 

court again denied. 

¶9 Aside from the revelation of the body cam video, two 

other events at trial are relevant to our review. During jury voir 

dire, the prosecutor named only three witnesses—the officer, the 

customer, and the store manager, who had been out of town 

during the events at issue—and those were the only witnesses 

about whom the court asked the jury, ‚Are any of you 

acquainted with or related to any of those people mentioned?‛ 

However, after defense counsel finished his opening statement, 

the State informed the court that the acting manager would also 

be testifying, explaining, ‚There is a witness that we did not 

think was available, that is.‛ When the prosecutor mentioned

this fourth witness—the acting manager—defense counsel 

responded with what is only marked as ‚inaudible‛ in the 

transcript. The prosecutor responded, ‚She is in the police 

report,‛ to which defense counsel argued, ‚I asked him two days 

ago who the witnesses are going to be, and he named three 

witnesses.‛ The trial court allowed the acting manager to testify. 

¶10 Finally, Defendant again moved for a mistrial after the 

State decided not to have the store manager testify. During 

Defendant’s opening statement, defense counsel had previewed 
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20141057-CA 5 2016 UT App 151

some of the exculpatory testimony he anticipated the store 

manager would provide. Namely, he expected the store manager 

to testify that she had known Defendant for ten years, that she 

knew Defendant to be a good employee, and that she had never 

had any problems with her. When the State announced that it 

would not have the store manager testify, Defendant objected, 

but the trial court released the witness because the State—and 

not Defendant—had subpoenaed her to testify. Defendant 

moved for a mistrial, arguing that the State opted not to have the 

store manager testify because it knew she would provide 

testimony beneficial to Defendant. The trial court denied the 

motion.

¶11 The jury found Defendant guilty of theft. She now appeals 

her conviction.

ISSUES AND STANDARDS OF REVIEW

¶12 Defendant raises four issues on appeal. First, she argues 

that the trial court erred by denying her motions for a mistrial to 

remedy the State’s failure to give Defendant the body cam video 

before trial. ‚‘We review rulings on motions for a mistrial based 

on prosecutorial misconduct [i.e., discovery violations] for abuse 

of discretion.’‛ State v. Martinez, 2002 UT App 126, ¶ 16, 47 P.3d 

115 (alteration in original) (quoting State v. Reed, 2000 UT 68, 

¶ 18, 8 P.3d 1025).

¶13 Second, Defendant argues that the trial court erred when 

it allowed the acting manager to testify despite the State’s failure 

to disclose her as a witness prior to trial. We review the trial 

court’s decision to allow the acting manager to testify for an 

abuse of discretion.4 See State v. Perea, 2013 UT 68, ¶ 31, 322 P.3d 

 

4. There is some question about whether Defendant preserved 

this challenge for our review. Defendant asserts that even if it 

(continued<)
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20141057-CA 6 2016 UT App 151

624 (‚*W+e give the district court broad discretion to admit or 

exclude evidence, including lay witness testimony, and will 

disturb its ruling only for abuse of discretion.‛ (citation and 

internal quotation marks omitted)).

¶14 Third, Defendant argues that the trial court should have 

required the store manager—who had been subpoenaed by the 

State and was present at trial—to remain in court and testify, 

even though the State indicated it would not need her testimony. 

In her brief, Defendant suggests that we should review this issue 

for correctness, because the release of the store manager as a 

witness was based on the trial court’s arguably incorrect 

‚conclusion of law‛ ‚that a party cannot compel a witness who 

is present in court to testify without having subpoenaed the 

witness.‛ (Citing Utah R. Civ. P. 45(j); State v. Petersen, 810 P.2d 

421, 425 (Utah 1991); McKelvey v. Hamilton, 2009 UT App 126, 

¶ 17, 211 P.3d 390.) The State’s brief is unhelpful in determining 

 

(<continued)

was not preserved, we should review the issue for plain error. 

See, e.g., State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. ‚An issue 

is preserved for appeal only if it was presented to the trial court 

in such a way that the trial court had an opportunity to rule on 

it.‛ State v. Martinez, 2015 UT App 193, ¶ 27, 357 P.3d 27. 

Admittedly, our determination of whether this issue was 

preserved is made more difficult because much of the discussion 

held at the bench about the witness is marked as ‚inaudible.‛ 

But with context we are convinced that the issue was adequately 

presented to the trial court. See supra ¶ 9. Regardless, even if we 

were to review this issue for plain error, the result would be the 

same. Because defense counsel complained to the trial court that 

the witness was not disclosed as a potential witness, the error we 

identify should have been obvious; furthermore, as we make 

clear in our analysis, we believe this error prejudiced Defendant. 

See infra ¶¶ 40–45; Holgate, 2000 UT 74, ¶ 13.
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20141057-CA 7 2016 UT App 151

what standard of review applies, as it suggests that ‚*n+o 

standard of review applies.‛ After careful consideration of the 

parties’ briefs and relevant law, we conclude that this particular 

question is one that should be reviewed for an abuse of 

discretion.

5 See Miller v. Brocksmith, 825 P.2d 690, 693 (Utah Ct. 

App. 1992) (explaining that when an issue ‚involves the trial 

court’s discretionary power, . . . we will not disturb the trial 

court’s decision in such matters absent a clear abuse of such 

 

5. Defendant relies on rule 45 of the Utah Rules of Civil 

Procedure for the proposition that because the store manager 

was ‚*a+ person present in court,‛ she could have been ‚required 

to testify in the same manner as if the person were in attendance 

upon subpoena.‛ See Utah R. Civ. P. 45(j). This is true. But the 

language of the rule makes clear that a person in the store 

manager’s position may be required to testify. See id. ‚According 

to its ordinary construction the word ‘may’ means permissive,‛ 

and thus the trial court had discretion to decide whether to have 

the store manager remain and testify. See Crockett v. Crockett, 836 

P.2d 818, 820 (Utah Ct. App. 1992); see also Kennon v. Air Quality 

Board, 2009 UT 77, ¶ 21, 270 P.3d 417 (‚The use of ‘may,’ a 

permissive term, indicates the legislature’s intent to provide the 

Secretary with discretion.‛); Vance v. Fordham, 671 P.2d 124, 129 

(Utah 1983) (‚*T+he use of the permissive ‘may’ indicates that the 

publication of ‘rules and regulations’ is optional with the 

Committee.‛); State v. Madsen, 2002 UT App 345, ¶ 14, 57 P.3d 

1134 (‚Use of the permissive term ‘may’ plainly indicates that 

the trial court is not required to continue sentencing to obtain a 

presentence investigation report.‛). Furthermore, this court 

reviews lower courts’ discretionary rulings for abuse of 

discretion. See Miller v. Brocksmith, 825 P.2d 690, 693 (Utah Ct. 

App. 1992); Michael J. Wilkins et al., A “Primer” in Utah State 

Appellate Practice, 2000 Utah L. Rev. 111, 130 (2000) (‚The ‘abuse 

of discretion’ standard of review applies to all discretionary 

decisions of lower courts.‛).
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20141057-CA 8 2016 UT App 151

discretion‛). Defendant alternatively contends that the trial court 

should have granted the motion for a mistrial that she lodged 

after the trial court’s release of the store manager. We also 

review this question for an abuse of discretion. State v. Decorso, 

1999 UT 57, ¶ 38, 993 P.2d 837.

¶15 Finally, Defendant argues that ‚even if the errors raised 

[above] are not individually prejudicial, taken together they are 

cumulatively prejudicial.‛ ‚Under the cumulative error doctrine, 

we apply the standard of review applicable to each underlying 

claim of error . . . .‛ State v. McNeil, 2013 UT App 134, ¶ 16, 302 

P.3d 844 (omission in original) (citation and internal quotation 

marks omitted), aff’d, 2016 UT 3, 365 P.3d 699.

ANALYSIS

¶16 For Defendant to succeed on any of her claims on appeal, 

she must show that the trial court abused its discretion. ‚Under 

the abuse of discretion standard, we determine whether the trial 

court’s ruling was beyond the limits of reasonability. However, 

even if the trial court abused its discretion, we will reverse only 

if we find that the error is harmful.‛ State v. Archuleta, 850 P.2d 

1232, 1240 (Utah 1993) (citations and internal quotation marks 

omitted).

An abuse of discretion occurs when, taking into 

account any remedial measures ordered by the trial 

court, the prejudice to the defendant still satisfies 

the standard for reversible error set forth in Rule 30 

[of the Utah Rules of Criminal Procedure], and the 

remedial measures requested but refused would 

have obviated this prejudice.

State v. Knight, 734 P.2d 913, 918 (Utah 1987). If we determine the 

trial court abused its discretion but that no single error was 

harmful enough to require reversal, we will nevertheless reverse 
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20141057-CA 9 2016 UT App 151

if ‚the cumulative effect of all identified and assumed errors 

undermines our confidence in the essential fairness of the 

defendant’s trial.‛ State v. Clark, 2014 UT App 56, ¶ 13, 322 P.3d 

761.

¶17 We begin with the question of whether the trial court 

abused its discretion in the ways identified by Defendant. Then, 

because we conclude that the trial court erred in each instance, 

we turn to the question of cumulative prejudice, making it 

unnecessary for us to determine whether any error alone merits 

reversal. This approach is particularly beneficial in this case, 

where each error was compounded by the next and the 

prejudicial effect of any single error is difficult to isolate.

I. The Body Cam Video

¶18 Defendant first challenges the trial court’s refusal to grant 

a mistrial when it came to light that the body cam video was not 

included with the discovery the State had provided Defendant. 

Under rule 16 of the Utah Rules of Criminal Procedure, ‚the 

prosecutor shall disclose to the defense upon request . . . relevant 

written or recorded statements of the defendant . . . [and] 

evidence known to the prosecutor that tends to negate the guilt 

of the accused.‛ Utah R. Crim. P. 16(a). Furthermore, the State 

‚has a continuing duty to make disclosure.‛ Id. R. 16(b). ‚When 

the prosecution responds voluntarily to a discovery request, as it 

did here, two duties arise. First, the prosecution must either 

produce all of the material requested or specifically identify 

those portions that will not be produced.‛ State v. Redcap, 2014 

UT App 10, ¶ 12, 318 P.3d 1202. ‚‘Second, when the prosecution 

agrees to produce any of the material requested, it must continue 

to disclose such material on an ongoing basis to the defense.’‛ Id.

(quoting Knight, 734 P.2d at 917). ‚Failure to do so is a discovery 

violation.‛ Id.

¶19 More than five months before trial, Defendant filed a 

discovery request with the State. She asked for all ‚evidence that 
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20141057-CA 10 2016 UT App 151

has been discovered by any member of the agencies involved in 

the investigation or prosecution that tends to inculpate the 

defendant,‛ all ‚recorded statements of the defendant,‛ and all 

‚video and/or audio recordings and transcripts of those 

recordings prepared in conjunction with the prosecution of this 

case in the possession of any law enforcement or governmental 

agency.‛ The State responded by providing Defendant with the 

store security camera footage. It did not provide the body cam 

video, and it did not ‚specifically identify‛ the body cam video 

as evidence that would not be provided. See id. There is no 

dispute that the State knew of the body cam video before trial 

and did not disclose the video until the middle of trial. We thus 

agree with Defendant that the State’s failure to disclose or 

provide the body cam video is a discovery violation.6

 

6. In its brief, the State makes no attempt to argue that this was 

not a discovery violation. Instead, it ignores the substance of 

Defendant’s rule 16 argument and claims that Defendant waived 

her rule 16 challenge ‚when she sought a mistrial and did not 

seek a continuance to meet the allegedly unexpected evidence.‛ 

The State’s argument fails to recognize that rule 16 does not 

require an aggrieved defendant to request a continuance. See 

Utah R. Crim. P. 16(g). Instead, a defendant must make ‚timely 

efforts to mitigate or eliminate the prejudice caused by the 

prosecutor’s conduct.‛ See State v. Griffiths, 752 P.2d 879, 883 

(Utah 1988). This includes ‚request*ing+ a continuance or 

seek*ing+ other appropriate relief under Rule 16(g).‛ State v. 

Rugebregt, 965 P.2d 518, 522 (Utah Ct. App. 1998) (emphasis 

added). Because, as we conclude below, Defendant was entitled 

to a mistrial, we conclude that her motion for a mistrial was a 

request for ‚other appropriate relief.‛ See id.; see also Utah R. 

Crim. P. 16(g) (providing that a trial court ‚may enter such other 

order as it deems just under the circumstances‛). The State 

argues in the alternative that Defendant ‚invited the alleged 

(continued<)
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20141057-CA 11 2016 UT App 151

¶20 The question, then, is whether the trial court abused its 

discretion when it denied Defendant’s request for a mistrial and 

opted instead to provide her with a brief continuance to review 

the body cam video and prepare to cross-examine the officer. In 

other words, was this course of action ‚beyond the limits of 

reasonability‛? See Archuleta, 850 P.2d at 1240 (citation and 

internal quotation marks omitted).

¶21 We conclude that it was. Defense counsel was deprived of 

the ability to prepare for trial with the body cam video in mind. 

The video was revealed after opening statements—after counsel 

had presented the case to the jury and had made no mention of 

the video. Defense counsel had no reason or opportunity to seek 

out and interview the store employees and other police officers 

who appear in the video. The late disclosure of the body cam 

video impaired Defendant’s ability to thoroughly review the 

contents of the video and research applicable law in order to 

effectively move to exclude portions of the video; instead, the 

video was admitted to the jury in its entirety. Aside from 

including potentially inadmissible hearsay statements, the video 

shows Defendant being arrested, being read her rights in 

 

(<continued)

error in the ruling she now challenges by seeking the 

introduction of the body camera video after the trial court 

offered to exclude it and being granted a continuance for its 

inspection.‛ This contention is wide of the mark. While 

Defendant briefly discussed the possibility of using the body 

cam video for impeaching the officer, it was the State who 

clearly indicated, ‚I would move to admit it.‛ The State spends 

the remainder of its brief on this point analyzing the body cam 

video in the context of an alleged Brady violation. See generally 

Brady v. Maryland, 373 U.S. 83 (1963). But Defendant does not 

claim that a Brady violation occurred and instead couches her 

argument in terms of rule 16.
State v. Draper-Roberts

20141057-CA 12 2016 UT App 151

accordance with Miranda v. Arizona, 384 U.S. 436 (1966), and 

invoking her rights to silence and counsel.

¶22 And perhaps most importantly, the video directly 

contradicts the officer’s testimony on two points. To help explain 

why he came to view Defendant as a suspect in the case, the 

officer testified that Defendant ‚really didn’t want to talk to 

*him+ about‛ ‚where she found the purse.‛ Instead, he 

explained, ‚She just started asking me questions.‛ But in the 

body cam video, the acting manager asks Defendant to show the 

officer where the purse was found, at which point Defendant 

immediately walks the officer to the aisle where she purportedly 

found the purse, without asking him a single question. At trial, 

the officer testified, ‚And then I asked her for just some basic 

information. Okay, what’s your name, so I can put this down? 

She is -- she didn’t want to give me her name at first.‛ But the 

body cam video shows no discernible reluctance to provide the 

officer with the information requested.7 These small but 

 

7. The body cam video reveals the following exchange, with 

virtually no pauses between questions and answers: 

The officer: ‚Let me get some information from you.‛

Defendant: ‚All right.‛ 

The officer: ‚What was your name?‛

Defendant: ‚My name is Dawn.‛

The officer: ‚Is it D-A-W-N?‛

Defendant: ‚Uh huh (affirmative).‛

The officer: ‚And your last name?‛

Defendant: ‚Draper-Roberts.‛ 

The officer: ‚D-A-R-A-P-E-R . . .‛ 

Defendant: (interrupting, laughing) ‚Like the 

city, and then Roberts, yeah.‛ 

The officer: ‚What’s your birthday?‛ 

Defendant: [Provides her birthday.] 

The officer: ‚And a phone number for you?‛

(continued<)
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20141057-CA 13 2016 UT App 151

revealing discrepancies represent aspects of the body cam video 

with which defense counsel could have become thoroughly

familiar had the State produced the video before trial. 

Notwithstanding counsel’s ability to scramble and include some 

questions about the body cam video in his cross-examination of 

the officer, ‚we are not persuaded that the defense was as 

effective as it would have been if‛ the body cam video was 

disclosed as it should have been. See State v. Knight, 734 P.2d 913, 

922 (Utah 1987).

¶23 We acknowledge that the trial court provided Defendant 

with what the State repeatedly calls ‚a 19-hour continuance.‛ 

More realistically, the trial court gave the defense approximately 

two hours more than it otherwise would have had to prepare for 

the second day of trial, recessing at 2:45 p.m. instead of, 

presumably, the close of business at 5:00 p.m. But whether the 

trial court provided Defendant with two or nineteen hours—or 

even more than that—the damage of the untimely disclosed 

body cam video was done. Defense counsel had already 

potentially lost credibility with the jury by failing to preview and 

discuss an important piece of evidence for the State in his 

opening statement. And, as defense counsel explained, he 

‚would have prepared for this trial in a completely different 

manner if [he] had the video available beforehand like [he] 

should have had.‛ Defense counsel further explained, ‚*I+t 

would change the way that I ask questions, how I approach the 

case, how I advise my client as to her rights, whether or not she 

should take a plea offer.‛

 

(<continued)

Defendant: ‚Um, besides work here?‛

The officer: ‚Yeah.‛

Defendant: [Provides her phone number.]

The officer: ‚*Repeating four digits+?‛

Defendant: ‚Uh huh (affirmative).‛
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20141057-CA 14 2016 UT App 151

¶24 A continuance would not have cured the prejudice 

Defendant suffered from the State’s failure to disclose the body 

cam video. Under these circumstances, it was erroneous for the 

trial court to deny Defendant’s motion for a mistrial. See id. at 

918 (‚*I+f the trial judge denies the relief requested under Rule 

16(g), that denial may constitute an abuse of discretion 

warranting a reversal.‛).

II. The Acting Manager

¶25 Defendant’s next contention is that the trial court should 

not have allowed the acting manager to testify. The Utah Rules 

of Criminal Procedure require the prosecutor to provide the 

names of witnesses to a defendant before trial.

The names of witnesses on whose evidence an 

indictment or information was based shall be 

endorsed thereon before it is filed. . . . Upon 

request the prosecuting attorney shall, except upon 

a showing of good cause, furnish the names of 

other witnesses he proposes to call whose names 

are not so endorsed.

Utah R. Crim. P. 4(j). Furthermore, under rule 16 of the Utah 

Rules of Criminal Procedure, the State was required to respond 

in full to Defendant’s request for a list of all witnesses the State 

intended to call at trial. See id. R. 16(a).

¶26 The State disclosed that it intended to call the customer, 

the officer, and the store manager as witnesses. It did not

mention the acting manager until after opening statements. The 

State now claims that ‚the Information filed endorses ‘store 

manager’ as a witness.‛ But the fact that the State subpoenaed 

and had present at trial the actual store manager leads us to 

reject the State’s contention that, ‚*w+hile not entirely 

descript[ive], it is reasonable for [Defendant] to expect that [the 

acting manager]—who was the only other store manager on 
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20141057-CA 15 2016 UT App 151

duty at the time of this offense—could be called as a witness.‛ 

We thus have no difficulty concluding that the State’s failure to 

disclose the acting manager as a potential witness constitutes a 

second discovery violation. See Knight, 734 P.2d at 916–17 

(explaining that where the defendant requested a ‚list of all the 

witnesses that the State intends to call for trial‛ and the State 

chose ‚to respond voluntarily to *the+ request under *rule 

16(a)(5)] without requiring the defense to obtain a court order, 

considerations of fairness require[d] that the prosecution 

respond to the request in a manner that [would] not be 

misleading‛).

¶27 To decide whether it was error for the trial court to allow 

this testimony in spite of the State’s failure to disclose the acting 

manager as a witness, we consider the substance of the acting 

manager’s testimony along with relevant extraneous information 

about the witness. But first, we examine the elements of theft 

that the State was required to prove, so as to better place the 

acting manager’s testimony in context.

¶28 ‚A person commits theft if he obtains or exercises 

unauthorized control over the property of another with a 

purpose to deprive him thereof.‛ Utah Code Ann. § 76-6-404 

(LexisNexis 2012). Thus, for the jury to convict Defendant, the 

State had to prove beyond a reasonable doubt that Defendant 

(1) exercised unauthorized control over the purse, and (2) had a 

specific intent in doing so—to deprive the customer of her purse. 

See id.

¶29 While the surveillance video revealed that Defendant 

undoubtedly exercised control over the purse, the State was

required to show that the control was unauthorized and that 

Defendant intended to deprive the customer of her purse. The 

video showed that Defendant found the purse by the door of the 

store, when instead she told the officer she had found it in an 

aisle. And the officer’s testimony indicated that the control was 
State v. Draper-Roberts

20141057-CA 16 2016 UT App 151

unauthorized and with the intent to deprive the customer by 

explaining to the jury the ways in which Defendant behaved 

suspiciously. But the most telling piece of evidence regarding 

Defendant’s intent came from the acting manager’s testimony.

The State summarizes what is perhaps the most important part 

of the acting manager’s testimony this way: ‚*The acting 

manager] spoke to [Defendant]—in person—within a ‘few 

minutes’ of *the customer] leaving and asked [Defendant] if she 

had seen a purse and *Defendant+ indicated she had not.‛ The 

acting manager is the only witness who testified that Defendant 

denied seeing the purse.8 Without her testimony, the jury might 

have believed that Defendant—an acting manager herself—had 

done nothing more than move the forgotten purse from the 

public area of the store into, as the officer described, ‚a bigger 

room . . . . That’s kind of an employee area. That wouldn’t be 

somewhere that customers would walk back into.‛ Without the 

acting manager’s testimony, the most incriminating piece of 

evidence would be the contradiction between where Defendant 

actually found the purse and where she told the officer she had 

found it. The acting manager’s testimony was crucial to the 

State’s case, and allowing her to testify without adequate notice 

to Defendant was erroneous.

 

8. At oral argument, the State even acknowledged how 

important this testimony was. Counsel for the State explained, 

‚My main argument in the case was that initially there was no 

problem. *Defendant+’s a manager. She can retrieve a mislaid 

item and store it. . . . It was at the point, I argued to the jury, . . . 

where she denied its existence when the [customer] . . . came 

back in.‛ He claimed that this was based on the customer’s 

testimony, but when pressed, he acknowledged that it was the 

acting manager who testified of her conversation with 

Defendant in which Defendant denied having seen the purse.
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20141057-CA 17 2016 UT App 151

¶30 Beyond the substance of the acting manager’s testimony, 

another important fact informs our conclusion that the trial court 

erred in allowing the acting manager’s testimony. The acting 

manager has a criminal history—a felony conviction for retail 

theft in 2010.9 Rule 609 of the Utah Rules of Evidence allows 

‚attacking a witness’s character for truthfulness by evidence of a 

criminal conviction‛ if the crime committed ‚was punishable by 

death or by imprisonment for more than one year‛ or ‚if the 

court can readily determine that establishing the elements of the 

crime required proving—or the witness’s admitting—a 

dishonest act or false statement.‛ Utah R. Evid. 609(a). It seems 

likely that if Defendant had had the opportunity to fully prepare 

for the acting manager’s testimony, she would have discovered 

and sought admission of the acting manager’s theft conviction. 

And under rule 609, the conviction likely would have been 

admitted to impeach the acting manager’s testimony.

¶31 The State’s failure to include the acting manager on its list 

of witnesses was a discovery violation. Given the importance of 

the acting manager’s testimony and her felony conviction, it was 

an abuse of the trial court’s discretion to allow the acting 

manager’s testimony.

 

9. Because Defendant did not have the opportunity to prepare 

for the acting manager’s testimony before trial, the acting 

manager’s criminal history was not presented to the trial court 

and, accordingly, no objection was made on this basis. 

Defendant nevertheless encourages us to take judicial notice of 

the acting manager’s criminal history. Especially in light of the 

State’s concession at oral argument that judicial notice is proper 

in this context, we accept Defendant’s invitation.
State v. Draper-Roberts

20141057-CA 18 2016 UT App 151

III. The Store Manager

¶32 Finally, Defendant challenges the trial court’s release of 

the store manager as a witness, when she had been subpoenaed 

by the State and was present in court. As discussed above, this 

was undoubtedly a discretionary ruling by the trial court. See 

supra note 5. But it is also undisputed that the trial court had the 

authority to require the store manager to testify, even though 

Defendant had not subpoenaed her. See Utah R. Civ. P. 45; see 

also State v. Hartman, 119 P.2d 112, 114 (Utah 1941) (‚The court 

could and should have ordered [a person present at trial] to 

remain as a witness—upon request of counsel for defendant.‛).

The question, then, is given that authority, should the trial court 

have required the store manager to remain and testify? In light 

of the other errors identified above, we conclude that it should 

have.

¶33 The trial court’s initial justification for allowing the store 

manager to leave and not testify was that Defendant had not 

subpoenaed the store manager. Defense counsel explained that 

usually he relies on the State’s subpoenas in preparing for trial, 

and the court replied, ‚Usual practice is not going to cut it, and I 

have already called both the director of LDA and the director of 

the DA’s office about this issue in the past. There is no 

agreement that you can rely on who the State subpoenas.‛ While 

this might be a legitimate concern at the trial court level, and 

while the involved offices might need to adjust their standard 

practice, the trial court failed to explain why in this particular 

case Defendant should not have had the opportunity to examine 

the store manager. More concerning, the trial court went on to 

chastise, ‚If you wanted them, you should have subpoenaed 

them,‛ before indicating what appears to be a significant, though 

nonlegal, factor in the court’s decision: ‚But, like I said, we need 

to be done by 4:00, so I’m going to limit --.‛
State v. Draper-Roberts

20141057-CA 19 2016 UT App 151

¶34 After denying a motion for a mistrial based on the State’s 

failure to disclose the body cam video and then allowing a 

witness who had not been disclosed by the State to testify, the 

trial court prohibited Defendant from questioning a witness—

who was present in court and was expected to testify positively 

about Defendant—at least in part based on the court’s selfimposed time schedule. This is precisely the sort of 

‚discretionary ruling that compounds a previous harmful error 

of law [and thus] constitutes an abuse of discretion.‛ See State v. 

Norris, 2002 UT App 305, ¶ 12, 57 P.3d 238.

IV. Prejudice

¶35 Because we have concluded that the trial court erred in 

denying Defendant’s motion for a mistrial based on the mid-trial 

production of the body cam video, allowing the acting manager 

to testify, and releasing the store manager from testifying, we 

now consider whether the cumulative effect of these errors 

undermines our confidence that Defendant received a fair trial. 

See State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993).

A. The State’s Burden

¶36 We begin by noting that the State fails to meaningfully 

address whether Defendant was prejudiced by the errors she 

claims on appeal, relying instead on arguments regarding 

waiver, lack of preservation, and inadequate briefing. It does 

assert that the trial court’s release of the store manager was 

‚harmless beyond a reasonable doubt‛ because the store 

manager ‚was subpoenaed by the prosecution to testify about 

*the craft store’s+ lost and found policy.‛ This ignores the key

fact that Defendant planned to rely on the store manager for 

testimony that Defendant was a good employee who had never 

had problems on the job. Defense counsel alluded to this 

evidence during his opening statement, and he was unable to 

deliver because of the trial court’s release of the witness.
State v. Draper-Roberts

20141057-CA 20 2016 UT App 151

¶37 More troublingly, the State’s failure to brief the question 

of prejudice disregards Defendant’s contention that while ‚*t+he 

appellant usually bears the burden to prove prejudice*,+ . . . ‘a 

discovery violation claim may shift the burden to the State to 

show that the violation was harmless.’‛ (Quoting State v. Redcap, 

2014 UT App 10, ¶ 13, 318 P.3d 1202.) When asked about this at 

oral argument, the State acknowledged that it failed to brief the 

question of prejudice and indicated, ‚I do not believe that it 

would have changed the outcome of this trial given the 

overwhelming evidence,‛ before returning to the State’s position 

that there was no objection to the acting manager’s testimony. 

¶38 In State v. Redcap, we explained that

when the error consists of the prosecution’s failure 

to produce inculpatory evidence, the record does 

not provide much assistance in discovering the 

nature or magnitude of the resulting prejudice to 

the defense. The record cannot reveal how 

knowledge of this evidence would have affected 

the actions of defense counsel, either in preparing 

for trial or in presenting the case to the jury.

2014 UT App 10, ¶ 13 (citations and internal quotation marks 

omitted). Thus, ‚when the defendant can make a credible 

argument that the prosecutor’s errors have impaired the defense, 

it is up to the State to persuade the court that there is no 

reasonable likelihood that absent the error, the outcome of trial 

would have been more favorable for the defendant.‛ State v. 

Knight, 734 P.2d 913, 921 (Utah 1987). But in Redcap, we 

acknowledged that this burden shift does not occur 

automatically. See Redcap, 2014 UT App 10, ¶ 13 (indicating that 

‚a discovery violation claim may shift the burden‛ to the State to 

show that the violation was harmless (emphasis added)); see also 

State v. Bell, 770 P.2d 100, 106 (Utah 1988) (recognizing that ‚in 

some circumstances the nature of the error involved is such that 
State v. Draper-Roberts

20141057-CA 21 2016 UT App 151

[the] de facto burden [placed on the accused to show prejudice] 

should be shifted and the State required to persuade us that the 

error was harmless‛).

¶39 If, as Defendant urges, we determine that this is a case 

where burden shifting is appropriate, the State clearly has failed 

to meet such a burden by ignoring the question of prejudice. Cf. 

Knight, 734 P.2d at 921, 922 (reversing a conviction where ‚the 

State attempt[ed] to show that the errors were not prejudicial‛ 

but the court ‚*found+ the State’s arguments unpersuasive‛). We 

conclude, however, that such a determination is unnecessary 

because the prejudice in this case is clear.

B. Prejudice Apparent on the Record10

¶40 The prejudice resulting from the trial court’s rulings is 

perhaps best seen with reference to defense counsel’s opening 

statement. He previewed for the jurors the evidence he 

anticipated they would hear based upon information the State 

supplied to him. This inaccurate preview would eventually 

undermine his credibility with the jurors. He told them they 

would hear from three witnesses—the store manager, the 

customer, and the officer. He explained what he expected the 

store manager to testify to:

 

10. There is also the possibility that Defendant was prejudiced in 

ways not apparent on the record. For instance, we have no way 

of knowing whether any of the jurors were impermissibly 

related to or otherwise familiar with the acting manager. During 

the voir dire process, potential jurors were not asked about the 

acting manager as a potential witness and instead were only 

asked whether ‚any of *them were+ acquainted with or related 

to‛ the officer, the customer, or the store manager. See supra ¶ 9.
State v. Draper-Roberts

20141057-CA 22 2016 UT App 151

She will tell you that she has known [Defendant] 

for 10 years, worked with her before at -- at a 

different store, actually hired her at [the craft store] 

as an assistant manager, and she never had any 

problems with [Defendant]. She has always been a 

good employee, and they -- they made a team 

together at [the craft store], she being the assistant 

manager, and . . . the store manager, running the 

[craft] store.

He also told the jury the acting manager ‚[is] not here today, you 

won’t hear from her.‛ He then previewed the customer’s 

testimony and the story that the jury would see on the 

surveillance video. In doing so, he specifically stated that ‚there 

is no . . . situation where she denied having seen the purse . . . or 

anything like that.‛ He then briefly previewed the officer’s 

testimony before summarizing the case and sitting down.

¶41 However, as the trial played out, the jury saw and heard 

very little of what defense counsel indicated would be 

presented. It never heard from the store manager, including 

never hearing the positive information she might have provided

about Defendant. But it did hear from the acting manager

(whom defense counsel had explicitly told the jury would not be 

a witness). And the jurors heard the acting manager say exactly 

what defense counsel told them no one would say—that 

Defendant denied seeing the purse. The deterioration of defense 

counsel’s opening statement can be directly attributed to the trial 

court’s decisions to allow the acting manager to testify and to 

allow the store manager not to testify.

¶42 ‚The purpose of an opening statement is to apprise the 

jury of what counsel intends to prove in his own case in chief by 

way of providing the jury an overview of, and general 

familiarity with, the facts the party intends to prove.‛ State v. 

Williams, 656 P.2d 450, 452 (Utah 1982). ‚The opening statement 
State v. Draper-Roberts

20141057-CA 23 2016 UT App 151

is a crucial part of most trials because it is made at a time when 

the minds of the judge and jurors are probably most open to 

conditioning by the speaker.‛ 5 Am. Jur. Trials § 285 (1966)

(footnote omitted). The trial court’s rulings prejudiced 

Defendant by undermining this important tool in presenting her 

case to the jury.

¶43 Furthermore, the State’s discovery violations had a 

dramatic impact on the substance of the trial. The mid-trial 

disclosure of the body cam video inhibited defense counsel’s 

ability to effectively cross-examine the officer and to move to 

exclude inadmissible portions of the video. For example, defense 

counsel was not as prepared as he otherwise might have been to 

impeach the officer with contradictory evidence from the video. 

Additionally, the entire video was provided to the jury, 

including footage of Defendant invoking her rights; ultimate 

opinions offered by the officer, such as when he told another 

officer that Defendant ‚stole the purse‛ and told the customer, 

‚We found the person who stole your purse‛; and footage of 

Defendant being taken to jail. Cf. Utah R. Evid. 704 (addressing 

opinions that embrace an ultimate issue in a case); State v. Baker, 

963 P.2d 801, 806 (Utah Ct. App. 1998) (‚The Due Process Clause 

of the Fourteenth Amendment prohibits use of a defendant’s 

post-Miranda silence for impeachment purposes.‛). Moreover, 

defense counsel proffered on the record that had he known of 

the video’s existence he would have advised his client differently 

in going to trial.

¶44 Finally, as we have previously mentioned and as the State 

acknowledged, convicting Defendant under the facts of this case 

was largely dependent on the State proving that Defendant had 

denied seeing the purse. See supra ¶¶ 28–29. This fact was 

provided by a witness who should not have been allowed to 

testify, given the State’s failure to disclose her as a potential 

witness. Perhaps even more importantly, the testimony was 

given by a witness with a conviction for retail theft. But because 
State v. Draper-Roberts

20141057-CA 24 2016 UT App 151

the witness was undisclosed, defense counsel had no reason to 

investigate her criminal history and therefore missed the 

opportunity to impeach her with it.

¶45 All of this, taken together, undermines our confidence 

that Defendant had a fair trial. See State v. Perea, 2013 UT 68, ¶ 97, 

322 P.3d 624 (stating that the cumulative error doctrine ‚is a 

doctrine used when a single error may not constitute grounds 

for reversal, but many errors, when taken collectively, 

nonetheless undermine confidence in the fairness of a trial‛). The

only way to properly remedy this cumulative prejudice was to 

grant one of Defendant’s many motions for a mistrial; but the 

trial court denied them all.

CONCLUSION

¶46 The trial court should have granted a mistrial when the 

body cam video was disclosed in the middle of the trial. The 

continuance it granted was not sufficient to remedy the 

prejudice to Defendant. Furthermore, the trial court should not 

have allowed the acting manager to testify and, especially in 

light of its decision to allow her testimony, should have required 

the store manager to remain and testify. These adverse rulings 

prejudiced Defendant to the point that our confidence in the 

jury’s verdict is undermined. We therefore reverse Defendant’s 

conviction and remand for a new trial.