State v. Beck

2007 UT 60
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, No. 20060609
Plaintiff and Petitioner,
v.
F I L E D
Arielle M. Beck,
Defendant and Respondent. August 10, 2007
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Seventh District, Moab Dep’t
The Honorable Lyle R. Anderson
No. 031700010
Attorneys: Mark L. Shurtleff, Att’y Gen., Happy Morgan,
Karen A. Klucznik, Asst. Att’ys Gen., Salt Lake City,
for plaintiff
Edward K. Brass, Salt Lake City, for defendant
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On Certiorari to the Utah Court of Appeals
WILKINS, Associate Chief Justice:
¶1 Defendant Arielle Beck was convicted by a jury on three
counts of forcible sexual abuse and other lesser charges. During
the trial, the district judge actively questioned Beck in the
presence of the jury concerning weak points in her testimony.
She was convicted, and appealed. The court of appeals reversed,
holding that the judge’s questioning created an impermissible
appearance of bias against Beck by the court, and was an error
that should have been obvious to the judge at the time. The
state sought certiorari on two issues, which we granted. We
affirm.
BACKGROUND
¶2 Beck, a teacher, was convicted of having had a sexual
relationship with K.S., a fourteen-year-old girl, whom she met

1 For a more detailed description of the facts this case,
see State v. Beck, 2006 UT App 177, ¶¶ 2-8, 136 P.3d 1288.
No. 20060609 2
through her work as an assistant softball coach.1 In connection
with her relationship with K.S., Beck was charged with three
counts of forcible sexual abuse and one count each of forcible
sodomy, child abuse, unlawful supply of alcohol to a minor,
permitting unlawful driving, and violating a stalking injunction.
¶3 The State presented the testimony of K.S. and several
of her friends, e-mail and handwritten letters from Beck
indicating an inappropriate relationship, and testimony from
handwriting and fingerprint experts that Beck had indeed written
the letters. Beck denied having any sexual contact with K.S.,
writing any romantic correspondence, and committing the other
crimes charged.
¶4 During the five-day trial, the district judge directly
questioned several witnesses, including Beck. After Beck’s cross
examination, the judge asked her, among other things, why certain
benign e-mails she testified to having written did not appear on
the victim’s computer; when she had been asked not to return to
the victim’s school; what she discussed with the school’s
principal; what she had or had not told the victim about
circumstances in her life; why she had not voluntarily provided
her computer to police investigators; whether the letters were
written on her writing paper; and to explain how someone else
might have obtained her writing paper with her fingerprints on
it. No objection to the judge’s questioning appears in the
record.
¶5 The jury convicted Beck on the forcible sexual abuse,
alcohol, and stalking charges but acquitted her on the forcible
sodomy, child abuse, and unlawful driving charges. On appeal,
the court of appeals reversed the convictions and ordered a new
trial. The primary basis for the reversal was the appearance of
bias against Beck created by the adversarial questioning by the
judge.
ANALYSIS
¶6 On certiorari we review the decision of the court of
appeals, not that of the trial judge. In most certiorari
reviews, we limit ourselves to issues of law, reviewing them for
correctness. Such is the case here.
¶7 We have agreed to address two questions:

2 State v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276.
3 No. 20060609
1. Whether the district court’s questioning of Defendant
exceeded the range of discretion permitted by the rules
of evidence and case law.
2. Whether the court of appeals applied the correct
burdens on appeal in its assessment of prejudice.
¶8 Since no objection was made at the time to the
questioning by the judge, appellate review would normally be
precluded for failure to preserve the error. The purpose of
preserving the error is to assure that the trial court has had
the claimed error brought to its attention in a timely fashion,
allowing the trial court the first opportunity to address and
correct the problem. Doing so greatly increases the likelihood
that a just and efficient process will be employed in the first
instance.
¶9 When an objection is not made at the time, the ability
to insist on review of the claimed error is decreased
significantly. The appellant must demonstrate that the error was
so obvious and hurtful, or that, obvious or not, it was so
unjust, that to refuse to consider it on appeal would be an
additional travesty. The plain error doctrine affords one such
avenue for review.
¶10 The court of appeals reviewed, and reversed, the
convictions under a plain error rubric. To demonstrate plain
error, we require the defendant to establish that an error
occurred; that the error should have been obvious to the trial
court; and that the error is harmful, that is, that absent the
error there is a reasonable likelihood of a more favorable
outcome for the defendant. As a matter of law, a trial court
does not have the discretion to exceed the limits of the law.
Doing so is, by definition, error. As a result, once an error is
established, the trial court has exceeded the permitted range of
discretion.
¶11 Under the plain error analysis, the error alone is not
enough, as it might have been had the claim of error been
preserved and presented on appeal in the normal fashion. Under
plain error analytic dictates, the error must also have been
obvious to the trial court. To show obviousness of the error,
the defendant “must show that the law governing the error was
clear at the time the alleged error was made.”2

3 State v. Mellen, 583 P.2d 46, 48 (Utah 1978).
4 State v. Gleason, 40 P.2d 222, 227 (Utah 1935).
No. 20060609 4
¶12 Finally, Beck must demonstrate that without the
imposition of the obvious error, she had a reasonable likelihood
of a more favorable result. This additional inquiry presents its
own difficulties. We will address each element in turn.
I. THE QUESTIONING BY THE TRIAL JUDGE WAS IN ERROR
¶13 The very essence of our judicial system is the right of
every citizen to have his case heard by a neutral and impartial
judge. Our constitutional system is designed to assure fairness
to those who stand in jeopardy of life and property, even to the
disadvantage of others. We hold the state, in its efforts to
extract life, liberty, or property from those accused of crime,
to a very high standard of proof. We insist that the process by
which that guilt is proven also be of the very highest standards,
including the meaningful participation of a neutral and impartial
presiding officer, the judge.
¶14 As part of this process, we hold trial judges to high
standards of conduct, both on and off the bench. In the vast
majority of circumstances, that standard is not only met, but
exceeded. It is a rare case indeed when judges anywhere in
America act in intentional contravention of their oaths and legal
duty. The error alleged in this case is not such an error. In
the course of managing and participating in a trial, criminal or
otherwise, it is perfectly correct for the trial judge to take an
active role. It is his or her obligation to superintend the
proceedings, and all of the elements that bring it about. Asking
questions in the course of a trial, even of key witnesses or the
defendant in a criminal matter, is often perfectly appropriate.
It is only when that questioning strays into areas, or into a
form, that may raise doubts about the neutrality of the court
itself, that it becomes problematic.
¶15 The restrictions on active questioning by a trial judge
are well established. They are based upon bedrock principles of
constitutionally mandated fairness and the presumption of
innocence afforded every defendant. The court must always be a
fair and impartial venue committed to the purpose of seeking
justice.3 The trial judge must preside over a trial with dignity
and impartiality.4 In the course of a jury trial, a judge must

5 Mellen, 583 P.2d at 48.
6 See Gleason, 40 P.2d at 227.
7 Mellen, 583 P.2d at 48 (“[T]he judge does have a function
beyond sitting as a comparatively silent monitor of the
proceedings.”).
8 Gleason, 40 P.2d at 227.
9 Id. at 228.
10 Id. at 227.
11 United States v. Middlebrooks, 618 F.2d 273, 277 (5th
Cir. 1980).
5 No. 20060609
not act or speak so as to indicate an opinion either on the
credibility of evidence or on disputed issues of fact.5
¶16 Impartiality, both perceived and actual, is of
particular importance in a criminal case before a jury. The
judge has the primary duty to protect the accused’s right to a
fair trial. The judge is forbidden to express or otherwise
indicate a view as to the guilt or innocence of the accused.
That determination is for the jury exclusively, and is to be made
without additional urging by the judge.6
¶17 The judge need not always sit upon the bench in stony
silence.7 It may often be necessary to intercede in the
proceedings to direct the pace of the trial or to conduct
housekeeping items. In appropriate circumstances, a judge has
discretion to briefly question witnesses to elicit the truth and
clarify facts.8 Rule 614(b) of the Utah Rules of Evidence
expressly provides that “[t]he court may interrogate witnesses,
whether called by itself or by a party.” However, as we have
counseled in the past, “[t]he practice of questioning by a judge
is not to be recommended or encouraged because even with the best
of intentions a judge in all sincerity may carry his examination
too far and unwittingly prejudice a defendant before the jury.”9
¶18 In questioning a witness, the judge should not engage
in extensive examination or usurp the function of counsel.10 The
judge must take particular care when the defendant takes the
stand on his or her own behalf, as “any unnecessary comments by
the court are too likely to have a detrimental effect on the
jury’s ability to decide the case impartially.”11

12 Mellen, 583 P.2d at 48.
13 Gleason, 40 P.2d at 227.
No. 20060609 6
¶19 These are not new guidelines. They are, and have been,
the clearly established law for a long time. As such, violation
of these restrictions is not only error in nearly every
circumstance, but is also obvious, or should have been, to the
trial judge.
¶20 In this case, the trial judge overstepped these bounds.
The court of appeals correctly decided that the trial judge
exceeded his permitted discretion in some of the questioning he
engaged in, and thereby committed obvious error. As here, a
judge commits error when, in a criminal case before a jury, he
questions a defendant extensively about weak aspects of her
defense. The trial court asked the defendant forty-eight
questions. He questioned her on several aspects of her case,
focusing on why she had not produced certain items of evidence,
whether the high school principal had told her one of her letters
was “incriminating,” why she had not turned her computer over to
investigators, and how she thought her fingerprints might have
appeared on written correspondence she had denied authoring. The
questions went well beyond what was “necessary or desirable to
clarify, explain or add to the evidence as it relate[d] to the
disputed issues.”12 They were prosecutorial in both substance
and tone.
¶21 The error should have been obvious to the trial court
in light of our decisions in Gleason and Mellen. The judge
extensively examined the defendant and “usurp[ed] the function of
counsel.”13 Although the judge may have sought to maintain an
attitude of neutrality, his questions were such that the jury
could have inferred, maybe unfairly or incorrectly, his opinion
as to the credibility of the defendant and critical disputed
issues of fact. This is not permitted.
II. THE COURT OF APPEALS APPLIED THE CORRECT BURDEN
¶22 The third step in the plain error analysis followed by
the court of appeals is to evaluate whether or not the defendant
has established that the obvious error was harmful. We have
required that the defendant show that the error “is harmful,
i.e., absent the error, there is a reasonable likelihood of a

14 State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993).
15 The State argues that the court of appeals created a new
standard in finding prejudice when it stated that “we cannot say
with certainty that the jury would have reached the same outcome
absent the judge’s intervention.” State v. Beck, 2006 UT App
177, ¶ 13, 136 P.3d 1288.
16 See id. ¶¶ 9, 13.
17 Id. ¶ 13.
7 No. 20060609
more favorable outcome for the appellant, or phrased differently,
our confidence in the verdict is undermined.”14
¶23 The State expresses the concern on certiorari that by
the language employed in the opinion of the court of appeals,
they have modified this burden to one of requiring the State to
show that a better result would not have occurred, absent the
error.15 While such a reading is possible, in isolation, it is
clear that the court of appeals applied the correct standard in
its assessment of harmfulness of the error. The court twice
stated the correct standard.16 The court of appeals also clearly
applied the correct standard when it analyzed the trial court’s
questioning, concluding that its confidence in the verdict had
been undermined.17 To the extent that the court of appeals’
statement suggests that the State must prove certainty of the
same outcome absent the judge’s intervention, we disavow it as a
standard for establishing plain error. The defendant still has
the burden to demonstrate a reasonable likelihood of a more
favorable outcome.
CONCLUSION
¶24 We conclude that the district court’s questioning of
the defendant exceeded the range of discretion permitted by the
rules of evidence and case law. The trial court committed
obvious error by engaging in extensive questioning of the
defendant before the jury that cast doubt upon her credibility
and compromised the judge’s role as an impartial, neutral
official. We also conclude that the court of appeals applied the
correct standard in its assessment of prejudice. Affirmed.
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¶25 Chief Justice Durham, Justice Durrant, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Wilkins’
opinion.