State v. Mitton

2026 UT App 137
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
R ICHARD S COTT M ITTON ,
Appellant.
Opinion
No. 20221076-CA
Filed September 11, 2026
First District Court, Brigham City Department
The Honorable Brandon J. Maynard
The Honorable Spencer D. Walsh
No. 211100057
Wayne K. Caldwell, Attorney for Appellant
Derek E. Brown and Connor Nelson,
Attorneys for Appellee
JUDGE A MY J. O LIVER authored this Opinion, in which
JUDGES R YAN M. HARRIS and R YAN D. TENNEY concurred.
OLIVER, Judge:
¶1 	This case comes before us again on remand from our
supreme court’s decision in State v. Mitton, 2026 UT 11, 589 P.3d
908. Pursuant to that remand, we are tasked with reevaluating the
district court’s denial of Richard Scott Mitton’s motion to dismiss
on double jeopardy grounds. Id. ¶ 54. We conclude that Utah’s
single criminal episode statute precludes the retrial of Mitton on
the amended charges. Therefore, the district court erred in
denying Mitton’s motion to dismiss. We remand this case to the
district court to enter an order granting Mitton’s motion to
dismiss on double jeopardy grounds.

State v. Mitton
20221076-CA 	2 	2026 UT App 137
BACKGROUND1
¶2 	In late 2020, Mitton and his brother-in-law got into an
altercation, which left the brother-in-law with serious injuries.
The State charged Mitton with two counts of aggravated assault,
both third-degree felonies, and the case proceeded to a jury trial
presided over by Judge Maynard. Following the first day of trial,
Judge Maynard disclosed to the parties that he was distantly
related to one of the witnesses. Later that night, Mitton moved to
disqualify Judge Maynard. The next morning, Judge Cannell, the
presiding judge of the First District Court, granted the motion,
transferred the case to Judge Walsh and declared a mistrial.2
Judge Maynard excused the jury and then informed the parties
about what had transpired.
¶3 	The next day, the State filed an amended information based
on the same altercation, this time charging Mitton with one
second-degree 	felony 	and 	one 	third-degree 	felony. 	Shortly
thereafter, Mitton filed a motion to dismiss with prejudice,
arguing that the amended information violated double jeopardy
protections. Judge Walsh heard arguments on the motion and
took it under advisement. Before Judge Walsh issued his ruling—
and four months after the declaration of a mistrial—Judge Cannell
issued a second amended order, providing “further information
regarding [the] decision making process to” declare a mistrial. In
that order Judge Cannell determined that keeping the jury
empaneled “would not have even been a possibility from a
logistical 	standpoint” 	due 	to 	“calendaring 	constraints” 	that
1. For a more fulsome recitation of the facts, see State v. Mitton,
2024 UT App 44, ¶¶ 3–15, 548 P.3d 908, rev’d, 2026 UT 11, 589 P.3d
724, and State v. Mitton, 2026 UT 11, ¶¶ 7–15, 589 P.3d 724.
2. Judge Cannell’s initial order contained only three sentences. He
issued an amended order six days later, which was “intended to
replace” his initial order.

State v. Mitton
20221076-CA 	3 	2026 UT App 137
would have made it “several days, if not several weeks or months,
before the retrial could proceed.” Relying entirely on this second
amended order, Judge Walsh determined that there had been
“legal necessity to declare a mistrial” and denied Mitton’s motion.
¶4 	Mitton then filed an interlocutory appeal. In our resolution
of the appeal, we followed the guidelines given by our supreme
court to district courts for legal necessity determinations in the
face of constitutional double jeopardy challenges. We concluded
that, particularly under State v. Manatau, 2014 UT 7, 322 P.3d 739,
“the elements of legal necessity were not established where the
court failed to give the parties an opportunity to object to the
declaration of a mistrial,” State v. Mitton, 2024 UT App 44, ¶ 30,
548 P.3d 908, rev’d, 2026 UT 11, 589 P.3d 724. We thus agreed with
Mitton that “Utah’s constitutional protections against double
jeopardy prohibit[ted]” his retrial. Id.
¶5 	The supreme court then granted certiorari to address
“whether the legal necessity exception to Utah’s constitutional
prohibition against double jeopardy can apply even where the
parties were not afforded an opportunity to object before a
mistrial was declared and the jury discharged.” Mitton, 2026 UT
11, ¶ 20. The court held that the exception may still apply even
when parties are not afforded such an opportunity. Id. ¶ 27. The
supreme court then remanded the case to this court and instructed
us to “conduct an independent assessment of the record to
determine whether Judge Cannell had any reasonable alternatives
to declaring a mistrial under the circumstances as they existed
when Judge Maynard was disqualified mid-trial” and to “resolve
any uncertainty caused by gaps in the record in Mitton’s favor.”
Id. ¶ 54.
ISSUE AND STANDARD OF REVIEW
¶6 	We again review Mitton’s argument that the district court
erred in denying his motion to dismiss on double jeopardy

State v. Mitton
20221076-CA 	4 	2026 UT App 137
grounds. Typically, a district “court’s decision to grant or deny a
mistrial will not be disturbed on appeal absent an abuse of
discretion,” but because the newly assigned judge reviewing the
motion to dismiss “was in no better position than this court to
determine the necessity of a mistrial, we review [the] denial of
defendant’s motion to dismiss” for correctness. West Valley City v.
Patten, 1999 UT App 149, ¶ 7, 981 P.2d 420.
ANALYSIS
¶7 	As stated above, the supreme court remanded this case for
us to reevaluate whether the legal necessity exception to Utah’s
constitutional prohibition against double jeopardy applies in this
case. See State v. Mitton, 2026 UT 11, ¶ 20, 589 P.3d 724. But on
appeal, Mitton has raised two bases for his argument that the
prohibition against double jeopardy prohibits his prosecution:
Utah’s constitution and Utah’s single criminal episode statute.
Our prior opinion did not address Mitton’s statutory argument
because we concluded that his prosecution was barred by Utah’s
constitution. State v. Mitton, 2024 UT App 44, ¶ 16 n.6, 548 P.3d
908, rev’d, 2026 UT 	11, 589 P.3d 	908. Considering Mitton’s
statutory argument for the first time in this opinion, we conclude
that 	Utah’s 	single 	criminal 	episode 	statute 	prohibits 	his
prosecution. Thus, we need not conduct a new constitutional legal
necessity analysis.
¶8 	Mitton asserts that his prosecution is barred by Utah’s
single criminal episode statute, Utah Code section 76-1-403. This
statute states, in relevant part,
If a defendant has been prosecuted for one or more
offenses arising out of a single criminal episode, a
subsequent prosecution for the same or a different
offense arising out of the same criminal episode is
barred if . . . the former prosecution . . . was
improperly terminated . . . .

State v. Mitton
20221076-CA 	5 	2026 UT App 137
Utah Code § 76-1-403(1). A “single criminal episode” is defined as
“all conduct which is closely related in time and is incident to an
attempt or an accomplishment of a single criminal objective.” Id.
§ 76-1-401. An “improper termination” occurs “if the termination
takes place before the verdict, is for reasons not amounting to an
acquittal, and takes place after a jury has been impaneled and
sworn to try the defendant, or, if the jury trial is waived, after the
first witness is sworn.” Id. § 76-1-403(4).
¶9 	Here, Mitton’s original charges arose from his altercation
with his brother-in-law. Although the State charged him with
different offenses following the declaration of a mistrial, the basis
for the new charges remained Mitton’s altercation with his
brother-in-law. This clearly meets the statutory definition of a
“single criminal episode.” See id. § 76-4-401. And Mitton’s original
trial qualifies as improperly terminated because the jury had been
“impaneled and sworn” and the “termination [took] place before
the verdict . . . for reasons not amounting to an acquittal.” Id. § 76-
1-403(4).
¶10 	However, such termination is not improper under the
statute if one of the following exceptions exists:
(a) the defendant consents to the termination;
(b) the defendant waives [the] right to object to the
termination; or
(c) the court finds and states for the record that the
termination is necessary because:
(i) it is physically impossible to proceed with the
trial in conformity with the law;
(ii) there is a legal defect in the proceeding not
attributable to the [S]tate that would make any

State v. Mitton
20221076-CA 	6 	2026 UT App 137
judgment entered upon a verdict reversible as a
matter of law;
(iii) prejudicial 	conduct 	in 	or 	out 	of 	the
courtroom not attributable to the [S]tate makes it
impossible to proceed with the trial without
injustice to the defendant or the [S]tate;
(iv) the jury is unable to agree upon a verdict; or
(v) false 	statements 	of 	a 	juror 	on 	voir 	dire
prevent a fair trial.
Id. § 76-1-403(4)(a)–(c).
¶11 	The only one of these exceptions the State argues applies is
the “physical impossibility” exception.3 See id. § 76-1-403(4)(c)(i).
The State contends that the fact that Judge Walsh had a full
schedule meets the statutory exception for impossibility because
it would have been weeks before he could have held a scheduling
3. The State argues, in the alternative, that if the operative order
was Judge Cannell’s initial three-sentence order, then the legal
defect exception applies. See Utah Code § 76-1-403(4)(c)(ii). But we
agree with the State that Judge Cannell had the discretion to
amend his initial order. Under Utah’s law of the case doctrine,
“[a]s long as the case has not been appealed and remanded,
reconsideration of an issue before a final judgment is within the
sound discretion of the district court.” IHC Health Services Inc. v.
D&K Mgmt., Inc., 2008 UT 73, ¶ 27, 196 P.3d 588; see also Utah R.
Civ. P. 54(b) (“[A]ny order or other decision . . . that adjudicates
fewer than all the claims or the rights and liabilities of fewer than
all the parties . . . may be changed at any time before the entry of
judgment adjudicating all the claims and the rights and liabilities
of all the parties.”). Accordingly, we need not address this
argument.

State v. Mitton
20221076-CA 	7 	2026 UT App 137
hearing and months before he could have commenced a trial. We
disagree.
¶12 	Judge Walsh’s scheduling difficulties do not meet the
physical impossibility exception to an improper termination for
double 	jeopardy 	purposes. 	The 	statute 	specifically 	requires
physical impossibility. See id. “Physical” refers to “material things”
or “real, tangible objects.” Physical, Black’s Law Dictionary (12th
ed. 2024). A physical impossibility necessarily involves a tangible
impediment to proceeding with trial, such as an earthquake, fire,
or other situation that renders the courthouse unusable. For
example, earlier this year, the State of Utah suspended its court
operations in Garfield and Piute counties due to the Cottonwood
Fire. See Utah Courts Temporarily Suspend Operations in Garfield and
Piute Counties Due to Cottonwood Wildfire, Utah Cts. (June 24, 2026),
https://legacy.utcourts.gov/utc/news/2026/06/24/utah-courts-
temporarily-suspend-operations-in-garfield-and-piute-counties-
due-to-cottonwood-wildfire/ 	[https://perma.cc/PM2L-EWHE].
The fire caused court facilities to lose power and internet access
and led to “limited staffing and unreliable access to essential court
systems.” Id. These difficulties left “the affected facilities . . .
unable to support essential court functions.” Id. This situation—
where 	a 	wildfire 	compromised 	services 	available 	at 	the
courthouse and caused unreliable operation of its facilities—is the
type of physical impossibility contemplated by the statute.
¶13 	Although the State argues that Judge Walsh’s schedule
made an earlier trial date impossible, it fails to explain how
calendaring difficulties constitute physical impossibility. When
tasked 	with 	statutory 	interpretation, 	“we 	presume 	that 	the
legislature used each word advisedly.” State v. Sanders, 2019 UT
25, ¶ 17, 445 P.3d 453 (cleaned up). “Thus, we interpret statutes to
give meaning to all parts, and avoid rendering portions of the
statute superfluous.” Id. ¶ 18 (cleaned up). Here, a proper
interpretation of the physical impossibility exception to the single
criminal episode statute cannot ignore the word “physical.”

State v. Mitton
20221076-CA 	8 	2026 UT App 137
Consequently, the physical impossibility exception for improper
termination does not apply here.
¶14 	Because the offenses charged in the amended information
relate to a single criminal episode and Mitton’s trial on the
original charges was improperly terminated, we conclude that
section 76-1-403 of the Utah Code prevents his prosecution on the
charges in the amended information. Therefore, the district court
erred in denying Mitton’s motion to dismiss on double jeopardy
grounds.
CONCLUSION
¶15 	We conclude that Utah’s single criminal episode statute
bars 	further 	prosecution 	of 	Mitton 	because 	the 	physical
impossibility 	exception 	does 	not 	apply. 	Consequently, 	we
remand this case to the district court to enter an order granting
Mitton’s motion to dismiss on double jeopardy grounds.