2016 UT App 223

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

KEN MONTEY JOHNSON,

Appellant.

Opinion

No. 20141155-CA

Filed November 10, 2016

Third District Court, Salt Lake Department

The Honorable Katie Bernards-Goodman

No. 141907022

Alexandra S. McCallum, Attorney for Appellant

Sean D. Reyes and Christopher D. Ballard, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in 

which JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN 

concurred.

CHRISTIANSEN, Judge:

¶1 Defendant Ken Montey Johnson appeals his convictions 

for burglary, damage to/interruption of a communication device, 

and theft.1 He contends that the district court’s instructions to 

the jury were inadequate and misleading, that prejudicial 

 

1. Defendant’s opening brief appeals from these three 

convictions. However, the same brief also notes that he pled 

guilty to the latter two charges. He did not, and does not seek to, 

withdraw his guilty pleas. As a result, and because his brief 

focuses on the burglary conviction, we review only that 

conviction.
State v. Johnson

20141155-CA 2 2016 UT App 223

portions of a voicemail recording were improperly admitted into 

evidence, that the judge and bailiff had improper contact with 

the jury, and that hearsay evidence was improperly admitted at 

trial. We affirm.

BACKGROUND

¶2 ‚On appeal from a jury verdict, we view the evidence and 

all reasonable inferences in the light most favorable to that 

verdict and recite the facts accordingly.‛ State v. Dozah, 2016 UT 

App 13, ¶ 2, 368 P.3d 863. ‚We include conflicting evidence as 

relevant and necessary to understand the issues on appeal.‛ Id.

¶3 Victim and Defendant divorced in 2010. Victim was 

awarded the marital residence, but was required to pay

Defendant $25,000. Victim initially executed a promissory note 

in favor of Defendant for the full amount, but Defendant later 

agreed to a reduced note of $15,000 due to Victim’s financial 

situation. Nevertheless, by the spring of 2014, Victim had yet to 

make any payment on the note and the debt had become a point 

of dispute between them.

¶4 On March 30, 2014, Defendant called Victim and left a 

voicemail stating that he was coming over to talk about the 

money. Victim claimed that, in the voicemail, Defendant 

‚sounded extremely drunk‛ and was ‚slurring his words.‛

When he arrived at her house and started kicking at the back 

door, Victim threatened to call the police. While she dialed 911 

on her cell phone, Defendant broke open the back door and 

entered the house. Victim accidentally hung up while Defendant 

was ‚screaming and yelling‛ because she was scared and 

‚shaking like crazy.‛ When the 911 operator returned the call, 

Defendant ‚grabbed‛ the phone, feigned punches toward

Victim, and continued to yell in slurred words that he wanted to 

talk to Victim. Victim attempted to retrieve the phone but 

Defendant grabbed her wrist, saying, ‚I should throw you down 
State v. Johnson

20141155-CA 3 2016 UT App 223

the stairs right now.‛ Eventually Victim retreated, and

Defendant fled the house with the phone and later destroyed it.

¶5 At trial, the central issue was whether Defendant had

entered or remained in the house with the intent to commit theft 

or assault. Defendant argued that he lacked the intent to commit 

a theft because he did not enter or remain in the house with the 

intent to permanently deprive Victim of her phone. In support of 

this claim, Defendant presented his own testimony that he had 

taken the phone only to ‚keep her from calling the police‛ and 

that he did not intend to assault Victim or steal her phone while 

he entered and remained in the house. Defendant also presented 

testimony from his friend that he went to the friend’s residence

after fleeing from Victim’s house and had expressed a desire to 

‚get back‛ to Victim’s house to ‚give the phone back‛ to her. 

According to Defendant, he had no intent to destroy the phone 

until he returned to Victim’s house and saw that the police had 

arrived whereupon he smashed the phone, ‚‘cause I was mad 

the police were there.‛

¶6 During the trial, the State sought to enter into evidence a 

recording of a voicemail Defendant left on Victim’s phone about 

a week after the incident. The garbled but obscenity-laden 

recording was almost four minutes long. In one of the intelligible 

portions of the voicemail, Defendant used the phrase ‚arrest me 

for breaking and entering,‛ which the State characterized as an 

admission. Over Defendant’s objection, the court admitted a 41-

second portion and allowed it to be played for the jury.

¶7 The State also sought to admit Victim’s written witness 

statement, which she had made immediately after the incident. 

The district court initially admitted the statement over 

Defendant’s hearsay objection. After Defendant moved for a 

mistrial due to admission of the witness statement, the district 

court determined that the witness statement was hearsay and 

excluded it. However, the district court denied the motion for a 

mistrial. Later, while cross-examining Victim, Defendant 
State v. Johnson

20141155-CA 4 2016 UT App 223

repeatedly questioned her credibility by pointing out that her 

testimony at trial included details not present in her written 

witness statement. Defendant also implied that Victim’s $15,000 

debt to Defendant gave her a motive to fabricate her allegations 

against him. The State again sought admission of the witness 

statement, and the district court agreed it should be admitted in 

its entirety.

¶8 During a recess in the trial, the judge informed counsel 

that she wanted to visit the jurors to explain the reasons for a 

delay; counsel acquiesced. When the judge returned, she stated 

on the record that she had done so in order to tell the jury that 

the recess had run longer than planned due to the preparation of 

jury instructions and that the State was deciding whether to put 

on any rebuttal. The judge also mentioned that the jurors had 

asked if they were going to be able to listen to the recordings of 

the voicemail and a 911 call2 or have access to transcripts of them

during deliberations. The judge reported that she had responded 

that there were no transcripts and that the judge and counsel 

would discuss whether the jurors would get to hear the 

recordings.

¶9 The court permitted the jury to hear the recording of the 

voicemail as well as the recording of Victim’s 911 call during the 

jury’s deliberations. The court explained that the prosecutor 

would have to show the bailiff how to play the recordings for 

the jury. Defense counsel did not object; rather, he merely asked 

that he be allowed to observe the prosecutor’s instruction to the 

bailiff. The bailiff then played the recordings for the jury.

¶10 The jury convicted Defendant of burglary and acquitted 

him of a threat of violence charge. Defendant appeals.

 

2. This was apparently a reference to a recording of a 911 call 

Victim made after Defendant fled the house.
State v. Johnson

20141155-CA 5 2016 UT App 223

ISSUES AND STANDARDS OF REVIEW

¶11 Defendant first contends that the district court’s burglary 

instruction was inadequate and misleading. ‚We review 

challenges to jury instructions under a correctness standard.‛ 

State v. Davis, 2013 UT App 228, ¶ 15, 311 P.3d 538 (citation and 

internal quotation marks omitted).

¶12 Defendant next contends that the district court violated 

rule 403 of the Utah Rules of Evidence when it admitted a 

portion of a recording of a voicemail that he left for Victim about 

a week after the incident. We review a district court’s ‚decision 

to admit or exclude evidence under Rule 403 of the Utah Rules of 

Evidence under an abuse of discretion standard, and will not 

overturn a lower court’s determination of admissibility unless it 

is beyond the limits of reasonability.‛ State v. Williams, 2014 UT 

App 198, ¶ 10, 333 P.3d 1287 (citation and internal quotation 

marks omitted). ‚*L+ike any other evidentiary ruling, an 

erroneous decision to admit or exclude evidence based on rule 

403 cannot result in reversible error unless the error is harmful.‛ 

Id. (citation and internal quotation marks omitted).

¶13 Defendant also contends that both the trial judge and the 

bailiff had improper contact with the jury during the trial. We 

review the propriety of communications between district court 

personnel and deliberating jurors for correctness, disturbing the 

verdict only if the error is ‚substantial or prejudicial such that 

the result would have been different had it not taken place.‛ 

Board of Comm’rs of Utah State Bar v. Petersen, 937 P.2d 1263, 1267 

(Utah 1997) (ellipsis, citation, and internal quotation marks 

omitted). Here, because defense counsel agreed to both the 

judge’s and the bailiff’s contact with the jury and did not later 

object, we consider Defendant’s argument that defense counsel’s 

assistance was constitutionally ineffective. ‚When a claim of 

ineffective assistance of counsel is raised for the first time on 

appeal, there is no lower court ruling to review and we must 

decide whether the defendant was deprived of the effective 
State v. Johnson

20141155-CA 6 2016 UT App 223

assistance of counsel as a matter of law.‛ State v. Beckering, 2015 

UT App 53, ¶ 18, 346 P.3d 672 (brackets, citation, and internal 

quotation marks omitted).

¶14 Defendant further contends that the district court erred by 

admitting hearsay evidence in the form of Victim’s witness 

statement. ‚In reviewing the admissibility of hearsay, legal 

questions are reviewed for correctness while the ultimate ruling 

on admissibility is reviewed for an abuse of discretion.‛ State v. 

Burke, 2011 UT App 168, ¶ 16, 256 P.3d 1102. We review for an 

abuse of discretion a district court’s decision to admit evidence 

pursuant to rule 106 of the Utah Rules of Evidence. See State v. 

Montgomery, 2007 UT App 24U, para. 4; see also United States v. 

Lopez-Medina, 596 F.3d 716, 734–35 (10th Cir. 2010) (considering 

the analogous federal rule).

¶15 Finally, Defendant contends that the cumulative effect of 

the alleged errors warrants reversal. Under the cumulative error 

doctrine, we apply the ‚standard of review applicable to each 

underlying claim of error‛ and ‚reverse only if the cumulative 

effect of multiple errors undermines our confidence that a fair 

trial was had.‛ Davis, 2013 UT App 228, ¶ 16 (citations and 

internal quotation marks omitted).

ANALYSIS

I. Adequacy of Jury Instructions

A. Instructions 25, 28, and 32 correctly and sufficiently stated 

the law.

¶16 Defendant first contends that the district court ‚gave 

inadequate and misleading instructions on burglary’s ‘intent to 

commit theft’ element.‛ Specifically, he asserts that the jury 

instructions ‚were insufficient and confusing because they failed 

to distinguish between the general and specific intent elements 
State v. Johnson

20141155-CA 7 2016 UT App 223

of the offense and failed to explain that ‘intent to commit theft’ 

requires proof that the defendant entered/remained with the 

purpose to permanently deprive.‛ Defendant concedes that the 

burglary instruction ‚correctly told the jury that burglary 

required proof beyond a reasonable doubt that [Defendant] 

entered/remained with the ‘specific intent to commit a theft,’‛ 

but argues that the burglary and theft instructions, read 

together, ‚did not explain that this intent encompassed both the 

intent to unlawfully take and the purpose to permanently 

deprive.‛

¶17 ‚We review jury instructions in their entirety to 

determine whether the instructions, taken as a whole, fairly 

instructed the jury about the applicable law.‛ State v. Liti, 2015 

UT App 186, ¶ 12, 355 P.3d 1078. As relevant here, ‚[a]n actor is 

guilty of burglary who enters or remains unlawfully in a 

building . . . with intent to commit: . . . (b) theft [or] (c) an assault 

on any person*.+‛ Utah Code Ann. § 76-6-202(1) (LexisNexis 

2012); see also id. § 76-6-202(2) (explaining that a burglary 

committed in a dwelling is a second-degree felony). Considering 

burglary by theft, ‚*a+ person commits theft if he obtains or 

exercises unauthorized control over the property of another with 

a purpose to deprive him thereof.‛ Id. § 76-6-404. ‚‘Purpose to 

deprive’ means to have the conscious object: (a) To withhold 

property permanently or for so extended a period or to 

use under such circumstances that a substantial portion of its 

economic value, or of the use and benefit thereof, would be 

lost*.+‛ Id. § 76-6-401(3).

¶18 ‚Instructions should be read in their entire context and 

given meaning in accordance with the ordinary and usual 

import of the language as it would be understood by lay jurors.‛ 

State v. Kennedy, 2015 UT App 152, ¶ 28, 354 P.3d 775 (citation 

and internal quotation marks omitted). Here, the district court 

instructed the jury on intent (Instruction 25), the elements of 

burglary applicable to the charges against Defendant
State v. Johnson

20141155-CA 8 2016 UT App 223

(Instruction 28), and definitions relevant to burglary generally

(Instruction 32). Instruction 25 described intent:

A person engages in conduct intentionally or with 

intent or willfully with respect to the nature of his 

conduct or to a result of his conduct, when it is his 

conscious objective or desire to engage in the 

conduct or cause the result.

Instruction 28 then listed the elements the jury would have to 

find beyond a reasonable doubt before convicting Defendant of 

burglary:

1. In Salt Lake County, State of Utah, the defendant 

KEN JOHNSON;

2. Knowingly, intentionally or recklessly;

3. Entered or remained unlawfully in the dwelling 

of another; and

4. With the specific intent to commit:

a. A theft; or

b. An assault on any person.[3]

Finally, Instruction 32 provided definitions relevant to 

burglary:

Theft. A person commits theft if he obtains or 

exercises unauthorized control over the property of 

another with a purpose to deprive him thereof.

 

3. On appeal, Defendant does not challenge the jury instructions 

as to burglary by assault. The jury acquitted Defendant on a 

charge of making a violent threat, which suggests, but does not 

conclusively prove, that the burglary conviction was based on a 

theory of burglary by theft rather than burglary by assault.
State v. Johnson

20141155-CA 9 2016 UT App 223

‚Purpose to deprive‛ means to have the conscious 

object:

(a) To withhold property permanently or for 

so extended a period or to use under such 

circumstances that a substantial portion of 

its economic value, or of the use and benefit 

thereof, would be lost[.]

¶19 As explained above, Defendant claims that the jury could 

have believed that, if it found the ‚specific intent to commit [a] 

theft‛ element of the burglary instruction was satisfied, the 

‚purpose to *permanently+ deprive‛ element of the theft 

instruction was also satisfied. He asserts, ‚Consequently, the 

instructions might have led the jury to believe that ‘intent to 

commit theft’ could be satisfied by mere proof of the intent to 

unlawfully take.‛

¶20 Defendant’s argument in this regard reverses the logical

chain of the instructions. Instruction 28 told the jury that, to 

convict Defendant of burglary by theft, it had to find that he 

entered or remained in the house with the ‚specific intent‛ of 

committing theft. Therefore, the starting point of the jury’s 

consideration of this issue must have been whether Defendant 

intended to commit a theft as defined by Instruction 32.

Instruction 32 plainly informed the jury that theft required the 

‚*p+urpose to *permanently+ deprive.‛ Accordingly, only if the 

jury first found that Defendant had the purpose to permanently 

deprive Victim of her property could it proceed to the question 

of whether Defendant entered or remained with the specific 

intent to carry out that purpose. When considered together, the 

instructions correctly informed the jury that (1) without the 

purpose to permanently deprive, there could be no theft, and (2) 

without the intent to commit theft, there could be no burglaryby-theft conviction. In other words, because the instructions 

conditioned a burglary-by-theft conviction upon a finding that 

Defendant had the specific intent to commit a theft (as 

Defendant concedes they did), the elements of theft (including 
State v. Johnson

20141155-CA 10 2016 UT App 223

the purpose to permanently deprive) were necessarily part of the 

jury’s consideration of the burglary instruction.

¶21 Defendant also argues that ‚the instructions failed to 

adequately explain that the intent to permanently deprive had to 

exist contemporaneously with the entering/remaining.‛ But 

Instruction 28 explains that a burglary-by-theft conviction 

required the jury to find that Defendant ‚[e]ntered or remained 

unlawfully in the dwelling of another‛ ‚*w+ith the specific intent 

to commit‛ a theft. And Instruction 32 defines the intent element 

of theft as having ‚the conscious object . . . [t]o withhold 

property permanently.‛ As explained above, Instruction 32’s 

definition of ‚theft‛ logically must be read into Instruction 28’s 

use of the term ‚theft.‛ See Kennedy, 2015 UT App 152, ¶ 28 

(explaining that instructions are given the ordinary and usual 

import of their language). Therefore, reading these instructions 

‚in their entire context‛ and giving them ‚meaning in 

accordance with the ordinary and usual import of the language,‛

id., the only reasonable interpretation is that a burglary-by-theft 

conviction required a finding that, while entering or remaining

in the dwelling, the defendant had the conscious object of 

withholding property permanently.

¶22 In a similar vein, Defendant refers us to a question sent by 

the jury to the court during deliberations. That note asked, with 

the jury’s emphasis, ‚Does the person need to have intent before 

they enter the home to commit theft OR can intent happen after 

they are in the home?‛ The court responded, without consulting 

counsel,4 ‚See instruction #31[.] Intent can be formed before 

 

4. A court is not required to consult counsel before responding to 

a jury’s question by simply referring the jury back to instructions 

already approved by counsel. See State v. Dozah, 2016 UT App 13, 

¶ 25, 368 P.3d 863. However, such a course of action is risky 

because the court’s response to a jury question may be construed 

as a new instruction. See also id. ¶¶ 26, 29, 31 (vacating a 

(continued<)
State v. Johnson

20141155-CA 11 2016 UT App 223

entry or while remaining in the home.‛ Instruction 31, approved 

by counsel, had informed the jury that ‚a person commits 

Burglary if that person enters or remains unlawfully in a 

dwelling or any portion of a dwelling with intent to commit a 

felony or theft or to commit an assault on any person.‛ (Strikeout 

in original.) Defendant complains that the response ‚failed to 

explain that the requisite intent must be contemporaneous with 

the entering/remaining, instead advising the jury that it can be 

present at the time of the entering/remaining.‛ (Emphasis in 

original.) He argues that, ‚[b]y including this non-mandatory 

language, the court’s response suggested that intent could be 

formed after leaving the home.‛

¶23 However, there is no likelihood that the jury shared this

interpretation of the note and response. The jury’s note 

described two scenarios separated by the emphasized word 

‚or.‛ This indicates that the jury understood that one of those 

two scenarios must have existed before they could find that 

Defendant intended to commit theft. And the court’s response 

referred the jury to an instruction previously given and clarified 

that either of the two scenarios would be sufficient for the jury to 

reach that finding. Given the phrasing of the note and the 

instructions before the jury, there is no reasonable possibility 

that the jury could have interpreted the court’s response as 

modifying the initial jury instructions so as to make intent to 

commit theft while unlawfully entering or remaining an 

optional, rather than required, finding.

 

(<continued)

conviction where such a response, ‚despite the court’s apparent 

intent to simply refer the jury back to the earlier instructions,‛ 

could have been interpreted by the jury as a fresh and legally 

incorrect instruction). Responding to a jury’s question without 

consulting counsel, while not in and of itself error, is a departure 

from the best practices for a court.
State v. Johnson

20141155-CA 12 2016 UT App 223

¶24 We conclude that the instructions on burglary and theft, 

when considered together, fairly instructed the jury about the 

applicable law and that Defendant has not shown a reasonable 

likelihood that the jury misinterpreted the court’s response to the 

jury’s note.

B. Instruction 33 did not fatally cloud the jury instructions.

¶25 Defendant next argues that the ‚significance of 

Instruction 33 was not clear, and when considered with 

Instruction 32, it suggested that intent to temporarily deprive 

was sufficient to sustain a conviction.‛ Instruction 33 was 

included in the court’s instructions at the request of defense 

counsel. As initially proposed, the instruction first defined the 

offense of wrongful appropriation and then related that 

definition to Defendant’s defense theory:

A person commits wrongful appropriation if he 

obtains or exercises unauthorized control over the 

property of another, without the consent of the 

owner or legal custodian and with intent to

temporarily appropriate, possess, or use the 

property or to temporarily deprive the owner or 

legal custodian of possession of the property.

Therefore, if at the time [Defendant] unlawfully 

entered or remained in the building [Defendant]

took the cell phone from [Victim] but acted with 

the intent to temporarily deprive her of the item, 

under the law he would be acting only with the 

intention to [temporarily] deprive and not to 

commit a theft. In such a circumstance [Defendant] 

could not be found guilty of burglary based on a 

theory of theft because burglary under a theory of 

theft requires that the defendant act with intent to 

permanently deprive the person of the property. 

An intention to temporarily deprive the person of 
State v. Johnson

20141155-CA 13 2016 UT App 223

the property is not sufficient to support a burglary 

charge.[5]

. . .

If [Defendant] did not, while entering or remaining 

in the building, have the intent to commit a theft or 

an assault you must vote not guilty on the burglary 

charge[.]

¶26 The district court did not give this instruction in full. 

Specifically, it declined to include the portion explaining 

Defendant’s ‚theory of the case‛ and stated that counsel would 

‚have to make your own arguments‛ to the jury about the 

relevance of wrongful appropriation. Accordingly, the court

gave only the first paragraph of Defendant’s proposed 

instruction, defining wrongful appropriation. Defense counsel 

did not seek to withdraw the shortened version of Instruction 33.

¶27 Defendant now complains that ‚Instruction 33 defined 

‘wrongful appropriation’ in the abstract without relating it to the 

legal principles relevant to burglary.‛ Defendant asserts that 

Instruction 33 ‚did not tell the jury what really mattered: 

entering/remaining with the intent to temporarily deprive is not

sufficient to satisfy burglary’s intent element.‛

¶28 ‚Jury instructions require no particular form so long as 

they accurately convey the law.‛ State v. Maama, 2015 UT App 

 

5. But see Utah Code Ann. § 76-6-404 (LexisNexis 2012) 

(explaining that theft requires a ‚purpose to deprive‛); id. § 76-6-

401(3) (defining ‚‘*p+urpose to deprive’‛ as having the conscious 

object to ‚withhold property permanently or for so extended a 

period or to use under such circumstances that a substantial portion of 

its economic value, or of the use and benefit thereof, would be lost‛ 

(emphasis added)).
State v. Johnson

20141155-CA 14 2016 UT App 223

235, ¶ 29, 359 P.3d 1272. The fact that one instruction, considered 

alone, is not as accurate as it could have been does not constitute

reversible error so long as the instructions as a whole fairly 

instruct the jury on the applicable law. State v. Kennedy, 2015 UT 

App 152, ¶ 32, 354 P.3d 775; State v. Lucero, 866 P.2d 1, 3 (Utah 

Ct. App. 1993).

¶29 There can be no question that Instruction 33 correctly 

stated the law on wrongful appropriation; as given, it recited the 

wrongful appropriation statute verbatim. See Utah Code Ann. 

§ 76-6-404.5(1) (LexisNexis 2012). And the law relating to 

burglary was already correctly stated by Instruction 28, which 

conditioned a burglary conviction on one of two intent 

findings—either ‚the specific intent to commit: a. A theft; or b.

An assault on any person.‛ Given the restrictive wording of 

Instruction 28, the jury could not have mistakenly read into the 

instructions a third route to a burglary conviction based on the 

intent to wrongfully appropriate. As a result, while the relevance 

of Instruction 33 could have been more thoroughly explained, 

the court did not err in giving the shortened version of 

Defendant’s proposed instruction, because the jury instructions 

as a whole fairly instructed the jury on the applicable law. See 

Kennedy, 2015 UT App 152, ¶ 32; Lucero, 866 P.2d at 3.

¶30 Defendant also points to a second note that the jury sent 

to the court during its deliberations, which asked about the 

reason Instruction 33 was included at all: ‚Jury is confused about 

the reason for the addition of p.33. Is there a specific reason it is 

included?‛ Without consulting counsel, see supra ¶ 22 note 4, the 

court responded ‚Use your collective memory of counsel’s 

argument[6] and testimony to determine its significance. See 

 

6. Defense counsel ultimately did not make an argument to the 

jury that, while entering or remaining in the house, Defendant at 

most possessed the intent to commit wrongful appropriation, 

which would fall short of an intent to commit theft. Defendant 

(continued<)
State v. Johnson

20141155-CA 15 2016 UT App 223

Instruction #11.‛7 Defendant relies on State v. Couch for the 

proposition that, ‚‘[w]hen a jury makes explicit its difficulties a 

trial judge should clear them away with concrete accuracy.’‛ 635 

P.2d 89, 94 (Utah 1981) (quoting Bollenbach v. United States, 326 

U.S. 607, 612–13 (1946)). He argues that, here, the court could 

only have done so by responding that ‚the intent to temporarily 

deprive was insufficient to support a conviction.‛

¶31 This argument stretches Couch beyond its holding. There, 

in a sexual abuse and kidnapping case, the Utah Supreme Court 

held that a court’s failure to instruct the jury upon its request as 

to the legal definition of the term ‚genitals,‛ when that term had 

not been defined in the jury instructions given, was reversible 

error. Specifically, the supreme court explained that, ‚where a 

jury at its own instance requests the definition of a term whose 

understanding is essential to a proper application of the law, the 

trial judge must provide the requested definition.‛ Couch, 635 

P.2d at 95. In contrast, the jury’s confusion here was not related 

to the meaning of a term in a statute but rather to the relevance 

of an instruction included at Defendant’s request. The court 

responded that (1) the relevance of Instruction 33 might be 

found by reviewing the arguments made by Defendant’s counsel 

and (2) if the jury’s other findings made Instruction 33 irrelevant, 

it could ‚disregard that instruction.‛ Accordingly, by reminding 

 

(<continued)

does not argue that defense counsel’s representation was 

constitutionally ineffective as a result.

7. Instruction 11 was a standard instruction that explained, as 

pertinent here, ‚All instructions are important, and you should 

consider them as a whole. . . . Whether any particular instruction 

applies may depend on what you decide are the true facts of the 

case. If an instruction applies only to facts or circumstances you 

find do not exist, you may disregard that instruction.‛
State v. Johnson

20141155-CA 16 2016 UT App 223

the jury that irrelevant instructions should be disregarded, the 

court cleared away ‚with concrete accuracy‛ the jury’s confusion 

regarding the inclusion of an instruction whose relevance was 

suspect. Moreover, nothing in the note or response can plausibly 

be read as setting aside or loosening the restrictions of 

Instructions 25 and 32. As noted, those instructions correctly 

stated the law, see supra ¶¶ 24, 29; see infra ¶ 32, and Defendant 

was not ‚entitled to further instruction regarding the defense’s 

theory of the case when the other instructions already fairly 

instruct*ed+ the jury on the law applicable to that theory,‛ see 

Kennedy, 2015 UT App 152, ¶ 32; Lucero, 866 P.2d at 3.

¶32 We conclude that Instruction 33 did not cloud the 

meaning of the instructions given to the jury, particularly in light 

of the district court’s response, which reminded the jury that not 

every instruction was necessarily relevant.

II. Admission of Voicemail Evidence

¶33 Defendant contends that the district court ‚violated

evidence rule 403 by admitting an unfairly prejudicial recording 

of a message that *Defendant+ left on *Victim’s+ voicemail about 

a week after the alleged offense.‛

¶34 The State sought admission of the entire recording, which 

was almost four minutes long. Defendant objected to the 

admission of the whole recording, arguing that it was unfairly 

prejudicial because it contained obscenities, but conceded that a 

4-second portion, in which he stated ‚arrest me for breaking and 

entering [or] whatever the fuck they think,‛ was admissible. He 

also offered to stipulate that he had kicked in Victim’s door and 

forcibly entered the house. Nevertheless, the State sought

admission of the recording, and the district court ruled that it 

would admit into evidence the 4-second portion ‚where he 

discusses coming into the house.‛ The State explained that it 

would be difficult to cue the recording to that exact point. The 

court ended up admitting and playing a 41-second clip for the 
State v. Johnson

20141155-CA 17 2016 UT App 223

jury, which included the 4-second portion. The 41-second clip

was generally unintelligible but included fragmentary 

statements such as ‚there’s nothing I owe you,‛ ‚you’re fucking 

me,‛ and ‚[you’re] stealing my house from me.‛ Defendant 

moved for a mistrial on the ground that the State had played 

more than the 4-second portion and had exposed the jury to 

Defendant’s use of the words ‚fuck‛ and ‚fucking.‛ The court 

denied the motion after deciding that a mistrial was not 

warranted merely ‚because the f-word might have been heard 

along with *Defendant’s+ statements about kicking the door in.‛

¶35 The district court ‚may exclude relevant evidence if its 

probative value is substantially outweighed by a danger of one 

or more of the following: unfair prejudice, confusing the issues, 

misleading the jury, undue delay, wasting time, or needlessly 

presenting cumulative evidence.‛ Utah R. Evid. 403. ‚[U]nfair 

prejudice results only where the evidence has an undue 

tendency to suggest decision upon an improper basis.‛ State v. 

Lucero, 2014 UT 15, ¶ 32, 328 P.3d 841 (citation and internal 

quotation marks omitted). Consequently, there is a 

‚presumption in favor of admissibility.‛ Id. (citation and internal 

quotation marks omitted).

¶36 Defendant asserts that the recording was substantially 

more prejudicial than probative. According to him, the probative 

value was low because he had stipulated that he had broken into 

the house and because he later testified to that effect. And on the 

other side of the equation, Defendant claims that the danger of 

unfair prejudice was high due to his use of obscenities and the 

fact that his statements were ‚directed against *Victim+, 

exhibited extreme animosity and the jury could have believed 

that [Defendant] was indifferent to the impact of his unlawful 

entry upon her.‛ (Citation and internal quotation marks 

omitted.)

¶37 We agree with the State that the recording had 

‚substantial probative value‛ beyond Defendant’s stipulation 
State v. Johnson

20141155-CA 18 2016 UT App 223

that he had broken into the house. The recording was relevant to 

show why Defendant broke into Victim’s house, as well as his 

general state of mind toward Victim and her property, albeit a 

week after the event. Cf. Utah R. Evid. 401 (explaining that

evidence is relevant if it has any tendency to make a fact that is 

of consequence to the action more or less probable than it would 

be without the evidence). Defendant’s apparent animosity to 

Victim, as revealed by his demeanor and use of obscenities in the 

recording, was therefore probative to central issues in both the 

assault and theft theories of burglary with which he was 

charged. Furthermore, stipulating to a fact does not cut off the 

State’s right to present evidence depicting the context of that 

fact. See State v. Verde, 2012 UT 60, ¶ 28, 296 P.3d 673 (explaining 

that the State ‚retains wide discretion to reject‛ a defendant’s 

offer to stipulate in lieu of presenting evidence to a jury ‚to 

preserve the right to present evidence with broad ‘narrative 

value’ beyond the establishment of particular elements of a 

crime‛); see also Old Chief v. United States, 519 U.S. 172, 189 (1997) 

(‚People who hear a story interrupted by gaps of abstraction 

may be puzzled at the missing chapters, and jurors asked to rest 

a momentous decision on the story’s truth can feel put upon at 

being asked to take responsibility knowing that more could be 

said than they have heard.‛).

¶38 Turning to prejudice, the Utah Supreme Court has 

emphasized that ‚the probative value of the evidence must be 

substantially outweighed by the danger of unfair prejudice.‛ 

Lucero, 2014 UT 15, ¶ 32 (emphasis in original) (citation and 

internal quotation marks omitted). Defendant asserts that his use 

of ‚coarse language could have caused the jury to convict based 

on a generalized assessment of character rather than the 

evidence.‛ (Internal quotation marks omitted) (Citing State v. 

Maurer, 770 P.2d 981, 985–87 (Utah 1989)). In Maurer, the 

defendant wrote a letter to his victim’s father in which he 

graphically described her cries during her murder and referred 

to her using a coarse slur. Maurer, 770 P.2d at 982. That letter was 
State v. Johnson

20141155-CA 19 2016 UT App 223

introduced into evidence; on appeal, the Utah Supreme Court 

reversed the defendant’s conviction because the letter ‚could 

have provoked an emotional response from the jury and 

provoked its instinct to punish or otherwise divert[ed] the jury 

from its task.‛ Id. at 987. Defendant relies on State v. Alzaga for 

the proposition that the ‚core concern‛ identified by Maurer in 

an unfair prejudice analysis is ‚what the defendant’s words

revealed about his character.‛ But in Alzaga, this court noted that

‚the core concern with the letter in Maurer was not so much the 

letter’s language but what it revealed about the defendant’s 

character: he wrote it to inflict additional emotional pain upon 

the victim’s father, literally to add insult to injury.‛ State v.

Alzaga, 2015 UT App 133, ¶ 51, 352 P.3d 107 (emphasis added). 

Here, the import of the voicemail message was not that it was 

calculated to insult Victim or inflict emotional pain but rather 

that it showed Defendant’s state of mind and cast light on the 

likelihood that he might have tried to assault Victim or to steal 

from her. And to the extent that Defendant worries that the jury 

might have convicted him for using coarse language, we note 

that such words ‚have lost much of their shock value in 

contemporary culture.‛ See id. (affirming a district court’s 

decision to admit into evidence a recording of a telephone call, 

between the defendant and his girlfriend, in which the 

defendant referred to his murder victim using several

obscenities).

¶39 Defendant has not convinced us that the district court 

abused its discretion by deciding that the probative value of the 

41-second recording was not substantially outweighed by the 

danger of unfair prejudice. Accordingly, we affirm the district 

court’s resulting denial of Defendant’s motion for a mistrial.

III. Jury Contact

¶40 Defendant next contends that there was improper contact 

between the judge and the jury as well as between the bailiff and 

the jury. Specifically, he asserts that the judge ‚engaged in an 
State v. Johnson

20141155-CA 20 2016 UT App 223

off-the-record conversation with the jury, without counsel 

present, about matters directly related to trial.‛ He further 

asserts that the court ‚allowed the bailiff to remain in the jury 

room during deliberations.‛ According to Defendant, these 

events create a ‚rebuttable presumption of prejudice that was 

not rebutted below.‛

¶41 Because defense counsel acquiesced to both contacts and 

did not object to them even after they occurred, we turn to 

Defendant’s argument that defense counsel’s assistance was 

constitutionally ineffective. To establish ineffective assistance of 

counsel, a defendant must demonstrate that defense counsel’s 

performance was deficient and that the deficient performance 

prejudiced the defense. Burke v. State, 2015 UT App 1, ¶ 16, 342 

P.3d 299 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). 

‚Because both deficient performance and prejudice are requisite 

elements of a claim of ineffective assistance of counsel, failure to 

prove either element necessarily defeats the claim.‛ State v. 

Garcia, 2016 UT App 59, ¶ 29, 370 P.3d 970. Defense counsel’s 

performance is not deficient so long as there is a conceivable 

tactical basis for counsel’s action or inaction. Id.; State v. King, 

2010 UT App 396, ¶ 31, 248 P.3d 984 (‚*B+efore we will reverse a 

conviction based on ineffective assistance of counsel, we must be 

persuaded that there was a lack of any conceivable tactical basis 

for counsel’s actions.‛ (citation and internal quotation marks 

omitted)).

A. The judge–jury contact did not address substantive trial 

matters.

¶42 Defendant states that the judge’s ‚improper contact‛ with 

the jury ‚surfaced after-the-fact when the judge returned from a 

recess,‛ and she explained what she had talked to the jury about:

I went in and told the jury that it had been longer 

than a 15 [minute] break because we were copying 

all the jury instructions and putting in the ones that 
State v. Johnson

20141155-CA 21 2016 UT App 223

you had all brought this morning that I had given 

you the opportunity to bring and the State was 

deciding whether to do rebuttal and all that and 

they said, ‚Well, when we get this case are we 

going to be able to listen to the tapes? Is there a 

transcript of the tapes?‛ So I said there’s no 

transcripts of the tapes, we will discuss whether

you get to hear the tapes.

However, immediately before going to speak to the jury, and 

recorded on the same page of the transcript, the judge had 

announced to counsel that ‚I’m going to tell the jury that we’re 

working on all this, that there’s no rebuttal. That we’re going to 

be copying jury instructions so it may take a few minutes more 

than 15 so they don’t blame it on you.‛ Defense counsel 

responded, ‚Okay.‛ Thus, defense counsel did not object to the 

judge–jury contact either when the judge announced her intent 

to talk to the jury or when the judge reported on the contents of 

that discussion.

¶43 With regard to judge–jury contact, the Utah Supreme 

Court has stated that ‚it may be appropriate to presume 

prejudice in some instances, such as where the judge discusses 

substantive matters with jurors.‛ State v. Maestas, 2012 UT 46, 

¶ 70, 299 P.3d 892. This is because, ‚*i+n such cases, the judge’s 

communication may have influenced the jury in unknown ways 

that could potentially affect the outcome of the case.‛ Id. But in 

Maestas, the supreme court declined to presume prejudice 

because ‚the interaction was brief and dealt with the timing of 

the jury’s dismissal for the day.‛ Id. ‚Further, to the extent that 

this communication could be considered related to some aspect 

of the trial, the judge appropriately disclosed the communication 

and neither [the defendant] nor his counsel objected to the 

interaction.‛ Id. (internal quotation marks omitted).

¶44 Here, Defendant asserts, ‚The judge’s off-the-record 

conversation with the jury involved ‘substantive matters,’ not
State v. Johnson

20141155-CA 22 2016 UT App 223

mere trial logistics . . . .‛ But the matters the judge talked to the 

jury about were exactly trial logistics. The judge explained to the 

jury why the break was longer than planned and that the State 

had not decided whether to offer rebuttal, and she responded to 

a jury question about what exhibits they would have access to by 

telling them that the judge and counsel had not yet decided that 

issue. See, e.g., Maestas, 2012 UT 46, ¶ 70 n.62 (giving as an 

example of discussing substantive matters with jurors a case 

where the foreman of a deadlocked jury discussed the jury’s

deadlock with the judge and ‚carried away from the meeting an 

impression that the judge wanted a verdict one way or the 

other‛ (citation and internal quotation marks omitted)). The term 

‚substantive‛ refers to the merits or outcome of a legal claim or 

case, as opposed to timing or procedural matters. See, e.g., id.; 

Beehive Tel. Co. v. Public Service Comm’n, 2004 UT 18, ¶ 30, 89 P.3d 

131; Allen v. Friel, 2008 UT 56, ¶¶ 23–24, 194 P.3d 903. And the 

judge here did not discuss the merits of the issues or the case 

with the jury.

¶45 Defendant argues that ‚the discussion concerning the 

State’s decision whether to do rebuttal—coupled with the fact 

that the State did not put on a rebuttal—conveyed the 

impression that the State’s case was a ‘slam dunk’ and the 

defense was weak and not worthy of a rebuttal.‛ But the ‚slam 

dunk‛ danger Defendant highlights could only have arisen if the 

judge had informed the jury that the State would not be 

presenting rebuttal, rather than simply explaining that the State 

had not yet decided whether it would. And even if the judge had 

so informed the jury, identifying possible prejudice would be 

difficult where there is no indication that the judge expressed 

any opinion as to whether it was a wise decision. Moreover, the 

fact that the State ultimately did not present a rebuttal argument 

spoke volumes more to the jury than the judge’s earlier comment 

that the State was still deciding whether or not to do so.

¶46 Defendant also argues that the judge–jury contact ‚could 

have ‘bre*d+ a sense of familiarity’ with the judge‛ as evidenced 
State v. Johnson

20141155-CA 23 2016 UT App 223

‚from the various notes the jury sent to the court during 

deliberations.‛ (Alteration in original) (Citing State v. Pike, 712 

P.2d 277, 281 (Utah 1985)). However, juries often send notes to 

judges seeking clarification of their instructions and conveying 

their logistical concerns; we cannot presume that whenever this 

occurs, the jury has an improper sense of familiarity with the 

judge. See Rushen v. Spain, 464 U.S. 114, 118 (1983) (‚There is 

scarcely a lengthy trial in which one or more jurors do not have 

occasion to speak to the trial judge about something, whether it 

relates to a matter of personal comfort or to some aspect of the 

trial.‛). Moreover, in Pike, the Utah Supreme Court expressed 

discomfort at the potential for ‚breeding a sense of familiarity‛ 

when jurors and ‚an important prosecution witness,‛ who was 

also the arresting officer, engaged in conversation during a 

recess. Pike, 712 P.2d at 280–81. Because a jury must evaluate the 

credibility of witnesses during deliberations, a sense of 

familiarity with a particular witness is ‚sufficient to warrant a 

presumption of prejudice.‛ Id. at 281. But because a jury’s charge 

does not encompass evaluating the credibility of the judge, the 

likelihood of the dangers posed by a sense of a familiarity with 

the judge, should one arise, is much less clear. Thus, the Pike

standard for presuming prejudice on the basis of possible 

familiarity between witnesses and juries has little bearing here.

8

¶47 Defendant further argues that the judge’s use of the 

phrase ‚and all that‛ ‚demonstrates that the conversation 

encompassed more than an incidental conversation related to 

scheduling.‛ We cannot divine such detail from an everyday 

informalism and therefore reject this argument without further 

discussion.

 

8. We reiterate that the best practice for a court is to minimize 

any contact or communication between the judge and the jury 

outside the presence of counsel. See supra ¶ 22 note 4.
State v. Johnson

20141155-CA 24 2016 UT App 223

¶48 We do not agree with Defendant’s assertion that the 

judge–jury contact encompassed substantive matters. 

Accordingly, no presumption of prejudice arose. Defense 

counsel did not perform deficiently by agreeing to the contact, 

especially in light of its purpose—to ensure that the jury did not 

blame counsel for the delay. And because substantive matters 

were not discussed, defense counsel did not perform deficiently 

by failing to raise an objection when the judge reported back. 

B. The bailiff–jury contact did not create a presumption of 

prejudice.

¶49 Defendant claims that the ‚bailiff’s contact with the jury 

also raises a presumption of prejudice that cannot be rebutted.‛ 

Specifically, he notes that the court asked the prosecutor to show 

the bailiff how to play the 911 call and voicemail recordings and

that the court stated ‚probably just the bailiff will go in.‛ 

Defense counsel did not object. Defendant asserts that the 

‚bailiff’s contact with the jury was more than incidental because 

the record reveals that the bailiff was present while the jury 

actually deliberated.‛9

¶50 Defendant points us to State v. Jonas, 793 P.2d 902 (Utah 

Ct. App. 1990), in which this court addressed a somewhat 

similar situation. There, after the close of evidence but before the 

jury was instructed and before closing arguments, a juror was 

excused from the panel. Id. at 907. The juror asked the bailiff to 

 

9. Despite Defendant’s assertion, the record on appeal does not 

reveal whether the bailiff remained in the room during the 

playing of the recordings. Nor does it reveal whether the jury 

discussed the case during the playing of the recordings. Given 

the short length of the recordings, as well as the need to prevent 

the jury from hearing unadmitted portions, we will assume 

arguendo that the bailiff remained in the room while the 

recordings were played. 
State v. Johnson

20141155-CA 25 2016 UT App 223

explain his absence to the remaining jurors, which the bailiff did. 

Id. The defendant appealed on the ground of improper bailiff–

jury contact. Id. at 903. This court determined that no 

presumption of prejudice arose, because the bailiff ‚did not 

mingle with the jurors or converse with them about the trial 

itself; nor did he interrupt their deliberations.‛ Id. at 909.

Defendant contrasts the instant case, asserting that ‚this is not a 

case where the bailiff simply entered the deliberation room, 

performed the ministerial task of cuing up the audiotape, and 

exited.‛ (Citation and internal quotation marks omitted.) But see 

supra ¶ 49 note 9.

¶51 We find United States v. Freeman instructive. See 634 F.2d 

1267 (10th Cir. 1980). In Freeman, the Tenth Circuit Court of 

Appeals reversed a defendant’s conviction after an FBI agent 

was allowed into the jury room to ‚operate the sound 

equipment‛ necessary to replay certain recordings previously 

admitted into evidence. Id. at 1269–70. That decision turned on 

the fact that the FBI agent was an adversary because his 

investigation had led to the prosecution of the defendant. Id. at 

1268–69; see also id. at 1269 (‚*A+ccess to the jury during its 

deliberative process by any adversary simply cannot be 

tolerated.‛ (citation and internal quotation marks omitted)). But 

see United States v. Florea, 541 F.2d 568, 571–72 (6th Cir. 1976) 

(holding that the presence of an adversary party performing a 

similar function in the jury room was harmless error because he 

‚was never alone with the jury and was in its presence only long 

enough to replay the tapes‛).

¶52 Here, there is no evidence that the bailiff remained in the 

jury room after playing and stopping the recordings. Nor is there 

any evidence that the bailiff mingled with the jurors, conversed 

with them about the trial, or interrupted their discussions. And a 

bailiff, unlike an FBI agent, is a member of the court’s personnel

and not an adversary party in the proceeding. For these reasons, 
State v. Johnson

20141155-CA 26 2016 UT App 223

we will not presume prejudice.10 Defense counsel thus did not 

perform deficiently by acquiescing to the plan of having the 

bailiff play the recordings for the jury.11

¶53 Because defense counsel did not perform deficiently with 

regard to either the judge–jury contact or the bailiff–jury contact, 

we conclude that there was no reversible error.

IV. Admission of Hearsay Evidence

¶54 Defendant next contends that the district court 

inappropriately admitted Victim’s written witness statement 

into evidence. Specifically, Defendant argues that the witness 

statement was hearsay and was not a prior consistent statement,

because it was written after Victim had formed the motive to 

fabricate her allegations against Defendant. Defendant further 

argues that the rule of completeness did not apply to allow the 

admission of hearsay, because no portion of the witness 

statement had previously been entered into evidence.

¶55 During Victim’s testimony, the State sought to enter into 

evidence the written witness statement Victim gave to police on 

the day of the incident. Defense counsel objected on hearsay 

grounds, but the court overruled the objection after determining 

that rule 801(d)(1)(A) of the Utah Rules of Evidence applied. See 

generally Utah R. Evid. 801(d)(1)(A) (providing that a statement 

is not hearsay if it ‚is inconsistent with the declarant’s testimony 

 

10. We note that an automatic presumption of prejudice in such 

circumstances would hinder the ability of court personnel to 

assist juries with technical matters.

11. Indeed, he likely had a tactical reason for accepting the plan; 

if the jurors had simply been given the recordings, they might 

have listened to the portions defense counsel had succeeded in 

excluding from evidence.
State v. Johnson

20141155-CA 27 2016 UT App 223

or the declarant denies having made the statement or has 

forgotten‛). The witness statement was then published to the 

jury. However, after a recess, the district court realized it had 

misread rule 801(d)(1)(A) as requiring consistency rather than 

inconsistency and therefore reversed itself. Accordingly, the 

district court retracted the written statement from the jury but 

declined to declare a mistrial because the jury only had the 

statement ‚for two minutes.‛

¶56 While cross-examining Victim, defense counsel asked her 

several times about the written statement in an attempt to 

impeach Victim’s credibility by highlighting discrepancies 

between Victim’s direct examination testimony and the

statement she gave on the day of the incident. For example, after 

Victim testified that Defendant had ‚grabbed‛ her, defense 

counsel asked, ‚[I]sn’t it true that there’s not one word in your 

report about him grabbing you?‛ After Victim stated that she 

could not recall, defense counsel refreshed her memory by 

showing her the written statement and asked, ‚[I]sn’t it true that 

the word grab, grabbing, grabbed, none of those words appear 

in that statement . . . ?‛ Defense counsel then got Victim to agree 

that the police detective had instructed her to ‚write down what 

happened‛ and to ‚tell him everything.‛ Similarly, after Victim 

testified that Defendant had ‚throw*n+ punches in the air 

towards my face, like he was going to punch me but stopped,‛ 

defense counsel asked her, ‚And that doesn’t appear anywhere 

in your report there either, does it?‛ Victim admitted it did not, 

explaining that she had not remembered that portion of the 

incident until later.

¶57 After Victim was excused from the witness stand, the 

State again sought to have the written statement admitted into 

evidence. The court admitted it into evidence pursuant to rule 

801(d)(1)(B). See Utah R. Evid. 801(d)(1)(B) (providing that a 

statement is not hearsay if it ‚is consistent with the declarant’s 

testimony and is offered to rebut an express or implied charge 

that the declarant recently fabricated it or acted from a recent 
State v. Johnson

20141155-CA 28 2016 UT App 223

improper influence or motive in so testifying‛). Defense counsel 

objected that only the portions of the statement that were 

consistent with the challenged elements of Victim’s testimony 

were admissible under that rule. Then the court admitted the 

entire written statement into evidence because defense counsel 

had ‚referred too much to the statement‛ and could not ‚keep 

pulling bits and piece*s+ of it out and expect that it’s not going to 

go into evidence.‛ See Utah R. Evid. 106. The court also 

expressed concern that the cross-examination had taken ‚a 

bunch of stuff out of context.‛

¶58 Victim’s witness statement was then introduced into 

evidence as an exhibit:

My ex husband came to my home drunk. I did not 

want to answer the door. He started kicking the 

back door. I grab[b]ed my phone and was yelling 

at him to leave. He broke the door in. I called 911 

and he took my phone and would not give it back. 

He was still yelling at me telling me I owe him 

money and I will not get it back. We got to the 

front door and I was still trying to get my phone 

back to call 911. He pushed me and said he should 

just push me down the stairs. He got in his truck 

and I ran to [my] neighbors house.

¶59 The basis for applying rule 106 here was not that elements 

of the witness statement were admissible pursuant to rule 

801(d)(1)(B). Rather, the beachhead was defense counsel’s 

extensive reliance on portions of the witness statement to 

impeach Victim’s credibility. Thus, regardless of whether the 

witness statement properly fell within the ambit of rule 

801(d)(1)(B), the question before us is whether the district court 
State v. Johnson

20141155-CA 29 2016 UT App 223

abused its discretion in determining that rule 106 required the 

admission of the remainder of the witness statement.12

¶60 Rule 106 of the Utah Rules of Evidence provides, ‚If a 

party introduces all or part of a writing or recorded statement, 

an adverse party may require the introduction, at that time, of 

any other part—or any other writing or recorded statement—

that in fairness ought to be considered at the same time.‛ This 

rule is often referred to as the rule of completeness, and is 

designed ‚to prevent a misleading impression created by taking 

 

12. ‚At least seven circuits have held . . . that if a remainder 

[portion of a statement] passes the fairness test, no other rule of 

evidence should exclude it from being entered under Rule 106.‛ 

Michael A. Hardin, This Space Intentionally Left Blank: What To Do 

When Hearsay and Rule 106 Completeness Collide, 82 Fordham L. 

Rev. 1283, 1308 (2013) (considering the federal rule of evidence 

analogous to rule 106). ‚These *circuits are+ the D.C., First, 

Second, Third, Fourth, Seventh, and Tenth Circuits.‛ Id. Hardin 

goes on to point out that of the five circuits that have appeared 

to hold that the rule of completeness does not trump other 

restrictions on the admissibility of evidence, at least four have 

done so only in dicta. Id. at 1312 (‚A particular pattern emerges 

in these cases. Courts of this view often state that Rule 106 

cannot render inadmissible remainders admissible, but then go 

on to find other reasons not to admit the remainder*.+‛). 

Moreover, ‚*t+he Supreme Court *has+ ducked this issue by 

holding that whether or not it was usable under Rule 106 [of the 

Federal Rules of Evidence], a party could introduce the 

remainder of a truncated letter as part of his own case under the 

common law completeness doctrine.‛ 21A Charles Alan Wright 

& Kenneth W. Graham, Jr., Federal Practice and Procedure 

§ 5078.1 (2d ed. 2016) (citing Beech Aircraft Corp. v. Rainey, 488 

U.S. 153, 170–73 (1988)). See also State v. Sanchez, 2016 UT App 

189, ¶ 24 n. 4 (collecting cases).
State v. Johnson

20141155-CA 30 2016 UT App 223

matters out of context.‛ See State v. Jones, 2015 UT 19, ¶ 40, 345 

P.3d 1195 (citation and internal quotation marks omitted). ‚The 

rule establishes a fairness standard that requires admission of 

those things that are relevant and necessary to qualify, explain, 

or place into context the portion already introduced.‛ Id.

(citation and internal quotation marks omitted). We therefore 

consider whether rule 106’s fairness standard required the 

admission of the entirety of Victim’s witness statement.

¶61 Defendant asserts that the written statement is not 

admissible in its entirety even in light of rule 106. He argues that 

rule 106 only renders admissible those portions of the written 

statement that were directly relevant to the precise items of 

testimony impeached by defense counsel’s cross-examination.

¶62 The State responds that ‚*f+airness required admission of 

*Victim’s+ entire witness statement.‛ The State explains that the 

thrust of defense counsel’s cross-examination was to suggest that 

Victim’s ‚entire testimony was unreliable because she could not 

accurately report the events‛ and to suggest ‚that she was 

embellishing her testimony with events that did not happen 

because her witness statement alone did not fully support 

Defendant’s charges.‛ (Emphasis added.) According to the State, 

in light of defense counsel’s attempts to impeach Victim’s overall 

credibility, the only way to ‚rebut these suggestions‛ was to let 

the jury ‚see exactly how *Victim+ had described the events in 

her written statement.‛

¶63 We agree with the State. The intent behind rule 106 is ‚to 

prevent a misleading impression,‛ not simply to correct a specific 

misleading instance. See Jones, 2015 UT 19, ¶ 40 (emphasis 

added) (citation and internal quotation marks omitted). 

Applying rule 106’s fairness standard here required allowing the 

State to introduce enough of the written statement to not only 

counter defense counsel’s tactical attacks on specific elements of 

Victim’s testimony but also to fairly respond to his strategic aim 

of impeaching Victim’s credibility generally.
State v. Johnson

20141155-CA 31 2016 UT App 223

¶64 We conclude that the district court did not abuse its 

discretion when it determined that rule 106’s fairness standard 

required admission of the entirety of Victim’s written witness 

statement. See id. (‚The rule establishes a fairness standard that 

requires admission of those things that are relevant and 

necessary to qualify, explain, or place into context the portion 

already introduced.‛ (citation and internal quotation marks 

omitted)).

V. Cumulative Error

¶65 Defendant contends that the cumulative error doctrine 

requires reversal here due to the aggregated prejudicial effects of 

the errors alleged. ‚Under the cumulative error doctrine, we will 

reverse only if the cumulative effect of the several errors 

undermines our confidence that a fair trial was had.‛ State v. 

Davis, 2013 UT App 228, ¶ 106, 311 P.3d 538 (citation and 

internal quotation marks omitted). We have determined that the 

district court did not err or abuse its discretion with regard to 

the claims in Parts I, II, and IV.13 We have also determined that

no presumption of prejudice arose with regard to the improper 

jury contact claims in Part III, and that defense counsel did not 

perform deficiently with respect to those claims. Accordingly, 

there are not multiple instances of prejudice to cumulate, and 

Defendant’s cumulative error claim necessarily fails. See State v. 

Glasscock, 2014 UT App 221, ¶ 34, 336 P.3d 46.

 

13. Given our resolution of each of these contentions on its 

merits, we need not and do not address the parties’ subsidiary 

arguments as to whether those contentions were preserved or 

whether an exception to the preservation requirement applies.
State v. Johnson

20141155-CA 32 2016 UT App 223

CONCLUSION

¶66 The jury instructions given by the district court were 

neither inadequate nor misleading, when considered in their 

entirety. The district court did not abuse its discretion by 

admitting the voicemail recording, because the recording was 

not substantially more prejudicial than probative. Defense 

counsel did not perform deficiently with regard to the contacts 

between the judge and the jury and between the bailiff and the 

jury. The district court also did not abuse its discretion in 

determining that Utah Rule of Evidence 106 required the 

admission of the entirety of Victim’s written witness statement. 

And the cumulative error doctrine has no application in the 

absence of error, abuse of discretion, or ineffective assistance of 

counsel.

¶67 Affirmed.