State v. Sorenson

2023 UT App 159
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
R ODNEY EARL S ORENSON ,
Appellant.
Opinion
No. 20210884-CA
Filed December 29, 2023
Second District Court, Ogden Department
The Honorable Joseph M. Bean
No. 211901270
Emily Adams and Hannah K. Leavitt-Howell,
Attorneys for Appellant
Sean D. Reyes and Lindsey L. Wheeler,
Attorneys for Appellee
JUDGE A MY J. O LIVER authored this Opinion, in which
JUDGES GREGORY K. O RME and D AVID N. M ORTENSEN concurred.
OLIVER, Judge:
¶1 	After he was found with folding knives and a hatchet in his
car, Rodney Earl Sorenson—who was on probation for a prior
drug offense—was charged with possession of a dangerous
weapon by a restricted person. Sorenson first moved to bifurcate
his trial, and the district court denied the motion. He also moved
for 	a 	mistrial 	after 	testimony 	was 	introduced 	about 	an
inflammatory statement he allegedly made about his probation
agent (Agent). The district court denied that motion too. On
appeal, Sorenson challenges the court’s denial of these motions
and also argues defense counsel (Counsel) was ineffective for
failing to object to testimony Agent gave about whether the knives

State v. Sorenson
20210884-CA 	2 	2023 UT App 159
and hatchet were dangerous weapons. We affirm Sorenson’s
conviction.
BACKGROUND
¶2 	Following a drone sweep of a secluded, wooded area,
police officers discovered Sorenson “resting” in the driver seat of
his car. The car was “messy” and had “a bunch of stuff in it.”
Because Sorenson was on probation for a prior drug possession
offense, Agent was dispatched to the scene. When Agent arrived,
she asked Sorenson if he had any weapons in the car. Sorenson
said no, but then he pulled a folding knife out of the driver-side
door compartment. Agent searched the car and discovered two
more folding knives on the driver-side floorboard and a hatchet
on the back seat. Sorenson indicated he was homeless and
unemployed and had used methamphetamine a few days prior.
Agent arrested him.
¶3 	Sorenson was charged with one count of possession of a
dangerous weapon by a restricted person, a third degree felony,
due to his probation status. Sorenson moved to bifurcate the trial,
arguing his restricted-person status was an enhancement or
aggravating factor that should be tried separately from the issue
of 	possession. 	During 	argument 	on 	his 	bifurcation 	motion,
Sorenson suggested a bench trial on the restricted-person element
or alternatively offered to stipulate to that element. The State
argued 	Sorenson’s restricted-person 	status was 	“intrinsically
intertwined” with the charge and that excluding the evidence
would 	require 	it 	to 	“dance 	around” 	and 	“almost 	hid[e]
information from the jury” as to why Agent was on the scene in
the first place. The court denied Sorenson’s bifurcation motion,
expressing that it was “concerned about the trial becoming a very,
very difficult navigation around the restricted-person status,”
recognizing that the status is “an element of the offense.”
¶4 	Sorenson later offered to stipulate that he was “a restricted
person for purposes of the trial and [to] instruct the jury to accept

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that stipulation.” But the State declined to accept the stipulation
because it was concerned about restricting its witnesses from
testifying about the events.
¶5 	At trial, the State’s first witness was a police officer
(Officer). Officer testified about discovering Sorenson in his car
and recalled that when he informed Sorenson that Agent was on
her way, Sorenson said, “She’s a fucking cunt.” Based on this
statement, Counsel moved for a mistrial, stating there was body
camera footage of Officer’s interaction with Sorenson and it
“never mentioned those words.” The court denied the motion for
a mistrial because the statement could be impeached by playing
the footage. The court then allowed Counsel a short voir dire
examination of Officer to determine the portion of the footage
where the slur was allegedly said. The defense later played a
“specific snippet” of the footage for the jury.0F
1 After reviewing the
footage, 	Officer 	admitted 	he 	thought 	Sorenson 	said
“motherfucking cunt” but Sorenson was “turn[ing] away” as he
said it, “so it may just have been ‘motherfucker.’”
¶6 	The 	State 	then 	called 	Agent. 	She 	indicated 	that 	she
supervised Sorenson’s probation on his prior drug possession
charge and read the portion of the probation agreement regarding
weapons into the record. She testified about being called to the
scene by Officer and finding the knives and hatchet in Sorenson’s
car. Throughout her testimony, Agent made several statements
about whether the folding knives were dangerous weapons.
When asked how she reacted to Sorenson grabbing the knife from
the driver-side door, Agent testified, “I said ‘Don’t touch it.’”
When asked why she said this to Sorenson, she stated, “Because
it’s a dangerous weapon.” Later, the State reminded her, “And
you testified that knives are a dangerous weapon,” to which
Agent said, “Yes. Their intended purpose is to cut.” The State then
asked her again why she told Sorenson to put the knife down, to
which Agent said, “Because it’s a dangerous weapon, and if he
1. A transcript of the footage was not included in the appellate
record.

State v. Sorenson
20210884-CA 	4 	2023 UT App 159
were to come at me with that, he could kill me.” Counsel then
asked Agent whether all knives would be considered dangerous
weapons 	in 	the 	hands 	of 	a 	probationer. 	Agent 	stated 	that
probationers are “allowed to have kitchen knives,” but “those
kitchen knives belong in their kitchen.” Agent explained that if
she found knives “in their bedroom or their bathroom, that now
becomes a dangerous weapon because it’s left the area where it is
intended to be used.” And Agent testified, “If you ask not just my
opinion, any agent’s opinion or a police officer’s, a knife is a
dangerous weapon.”
¶7 	Sorenson’s only witness was his brother (Brother). Brother
testified about retrieving the contents of Sorenson’s car. Brother
photographed the items, and at trial, he testified that the items—
including a duffel bag full of clothing, a bag of tools, a sleeping
bag, and a tent—belonged to Sorenson.
¶8 	In the end, the parties agreed to stipulate to Sorenson’s
restricted-person status in a jury instruction that read, “Parties
stipulate that under Utah law, a Category I restricted person is a
person who is on probation for possessing a controlled substance.
They further agree that Rodney Sorenson qualified as a Category
I restricted person at the time of the events in question.” The jury
found Sorenson guilty, and he was sentenced to an indeterminate
prison term of up to five years.
ISSUES AND STANDARDS OF REVIEW
¶9 	Sorenson raises three issues on appeal. First, he argues the
district court should have granted his motion to bifurcate his trial.
“We review the district court’s failure to bifurcate a criminal trial
for an abuse of discretion.” State v. Bragg, 2013 UT App 282, ¶ 15,
317 P.3d 452.
¶10 	Next, Sorenson argues the court erroneously denied his
motion for a mistrial. We also “review the denial of a motion for
a mistrial under an abuse of discretion standard” and “will not

State v. Sorenson
20210884-CA 	5 	2023 UT App 159
find such abuse unless the incident so likely influenced the jury
that the defendant cannot be said to have had a fair trial.” State v.
Silva, 2019 UT 36, ¶ 36, 456 P.3d 718 (cleaned up).
¶11 	Finally, Sorenson argues Counsel was ineffective in failing
to object to Agent’s testimony calling the knives and hatchet
dangerous weapons. “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 assistance of counsel as a matter of
law.” State v. Carranza, 2023 UT App 72, ¶ 32, 533 P.3d 850
(cleaned up), cert. denied, Nov. 14, 2023 (No. 20340764).
ANALYSIS
I. Bifurcation
¶12 	Sorenson argues his trial should have been bifurcated,
allowing the jury to decide first whether he intentionally or
knowingly possessed a dangerous weapon before separately
determining whether he was a restricted person. Because of their
“considerable discretion to administer the business of [their]
docket[s] and determine how a trial should be conducted,” State
v. Rhinehart, 2006 UT App 517, ¶ 19, 153 P.3d 830 (cleaned up),
district courts have the power to order the separate trial “of any
claim . . . or of any separate issue” “in furtherance of convenience
or to avoid prejudice,” Utah R. Civ. P. 42(b).1F
2
¶13 	Despite the discretionary nature of this decision, Sorenson
argues the district court was required to bifurcate his trial. Relying
on our supreme court’s decision in State v. Wareham, 772 P.2d 960
2. The Utah Rules of Civil Procedure “shall also govern in any
aspect of criminal proceedings where there is no other applicable
statute or rule, provided, that any rule so applied does not conflict
with any statutory or constitutional requirement.” Utah R. Civ. P.
81(e).

State v. Sorenson
20210884-CA 	6 	2023 UT App 159
(Utah 1989), Sorenson argues his restricted-person status is an
aggravation 	or 	enhancement 	to 	his 	charge 	that 	required
bifurcation from the guilt phase of his trial. See id. at 962–65. Even
assuming 	that 	Sorenson’s 	restricted-person 	status 	is 	an
aggravating factor under Wareham, however, our supreme court
recognized bifurcation of such aggravating factors is not an
absolute requirement in State v. Reed, 2000 UT 68, 8 P.3d 1025. The
Reed court concluded that bifurcation may be avoided if
(1) the evidence of the aggravating factors is offered
for a noncharacter purpose under rule 404(b) [of the
Utah Rules of Evidence]; (2) the evidence is relevant
under rule 402; and (3) the evidence has probative
value that significantly outweighs the danger it
poses of unfair prejudice, as required by rule 403.
Id. ¶ 25. Thus, Reed “expressly recognized that bifurcation is not
required when the aggravating conviction is otherwise admissible
at trial.” State v. Bragg, 2013 UT App 282, ¶ 34, 317 P.3d 452.
Evidence of Sorenson’s probation status was admissible at trial
under this formulation.
¶14 	First, the evidence does not pose a problem under rule
404(b) of the Utah Rules of Evidence. Rule 404(b) dictates that
evidence of “a crime, wrong, or other act is not admissible to
prove a person’s character in order to show that on a particular
occasion the person acted in conformity with the character.” Utah
R. Evid. 404(b)(1). But this rule “applies only to evidence that is
extrinsic to the crime charged.” State v. Main, 2021 UT App 81,
¶ 18, 494 P.3d 1056 (cleaned up). When evidence of prior acts is
“part of the case narrative” and has “important probative value
that 	bears directly 	on 	the 	crime 	charged,” 	it 	is 	considered
“inextricably intertwined” with the charged offense. Id. (cleaned
up). Evidence forming such an “integral part of the charged
conduct” is “beyond the reach of rule 404(b).” State v. Hood, 2018
UT App 236, ¶¶ 32–33, 438 P.3d 54; accord Main, 2021 UT App 81,
¶ 19.

State v. Sorenson
20210884-CA 	7 	2023 UT App 159
¶15 	Here, Sorenson’s probation status was necessary to prove
a central element of the crime charged—his status as a Category I
restricted person. See Utah Code § 76-10-503(2)(b). And it was
integral to the narrative of the case to explain why Agent was
called to the scene and why Sorenson’s possession of the knives
and 	hatchet 	was 	a 	punishable 	offense.2F
3 	This 	evidence 	was
inextricably intertwined with and integral to the charged offense.
See Hood, 2018 UT App 236, ¶ 32. Thus, rule 404(b) does not apply,
and we need not address it further.
¶16 	Second, the evidence of Sorenson’s probation status must
also be relevant under rule 402. See Utah R. Evid. 402 (“Irrelevant
evidence is not admissible.”). Evidence is relevant if “(a) it has any
tendency to make a fact more or less probable than it would be
without the evidence; and (b) the fact is of consequence in
determining the action.” Id. R. 401. Here, evidence of Sorenson’s
probation status made it more probable that Sorenson was a
Category I restricted person, which was an element of the charged
offense and thus, a consequential fact to the case. As such, the
probation evidence was highly relevant and admissible under
rule 402.
¶17 	Finally, the court may still “exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . .
unfair prejudice.” Utah R. Evid. 403. “Unfair prejudice results
only where the evidence has an undue tendency to suggest
decision upon an improper basis.” State v. Green, 2023 UT 10, ¶ 78,
3. The State was not required to accept Sorenson’s offer to
stipulate 	to 	his 	status 	as 	a 	restricted 	person. 	Indeed, 	“the
prosecution may refuse an offer to stipulate to preserve its ability
to tell a complete story.” State v. Verde, 2012 UT 60, ¶ 28, 296 P.3d
673, abrogated on other grounds by State v. Thornton, 2017 UT 9, 391
P.3d 1016, and State v. Green, 2023 UT 10, 532 P.3d 930; see also State
v. Johnson, 2016 UT App 223, ¶ 37, 387 P.3d 1048 (concluding that
“stipulating to a fact does not cut off the State’s right to present
evidence depicting the context of that fact”).

State v. Sorenson
20210884-CA 	8 	2023 UT App 159
532 P.3d 930 (cleaned up). “We therefore indulge a presumption
in favor of admissibility.” Id.
¶18 	Here, 	evidence 	of 	Sorenson’s 	probation 	status 	was
admissible under rule 403. The evidence had a high probative
value to the case. Sorenson’s status as a probationer was essential
to explain why Agent was called to search Sorenson’s car. And it
was essential to explain why having tools like folding knives and
a hatchet in his car was a criminal offense at all.
¶19 	Any prejudice the evidence may have caused did not
substantially 	outweigh 	this 	high 	probative 	value. 	The 	only
element in dispute at Sorenson’s trial was whether the knives and
hatchet in his car qualified as “dangerous weapons” under Utah
Code section 76-10-503(2). Utah Code section 76-10-501(6)(b)(i)–
(vi) lists six statutory factors for determining whether an object
qualifies as a dangerous weapon. To aid the jury in applying these
statutory factors, the knives and hatchet found in Sorenson’s car
were introduced as trial exhibits. Guided by the statutory factors
and its own examination of the knives and hatchet, it is unlikely
the 	jury 	would 	have 	relied 	upon 	Sorenson’s 	status 	as 	a
probationer 	in 	determining 	whether 	the 	tools 	qualified 	as
dangerous 	weapons. 	“We 	acknowledge 	that 	evidence 	of 	a
defendant’s custody status can carry a risk of prejudice.” State v.
Bermejo, 2020 UT App 142, ¶ 38, 476 P.3d 148. But whatever
prejudice the evidence of Sorenson’s probation status may have
caused does not “substantially outweigh” its high probative value.
Utah R. Evid. 403 (emphasis added).
¶20 	In 	sum, 	Sorenson’s 	probation 	status 	was 	admissible
evidence under rules 404(b), 402, and 403. Thus, the district court
was not required to bifurcate his trial and did not abuse its
discretion in declining to do so.
II. Mistrial
¶21 	According 	to 	Sorenson, 	the 	district 	court 	abused 	its
discretion in denying his motion for a mistrial. He argues the

State v. Sorenson
20210884-CA 	9 	2023 UT App 159
“fairness of [his] trial was compromised” because Officer falsely
testified that Sorenson called Agent a “fucking cunt.” But a
mistrial is a “drastic remedy,” State v. Roberts, 2019 UT App 9,
¶ 15, 438 P.3d 885, which should be granted only “where the
circumstances are such as to reasonably indicate that a fair trial
cannot be had and that a mistrial is necessary to avoid injustice,”
State v. Bermejo, 2020 UT App 142, ¶ 75, 476 P.3d 148 (cleaned up).
Thus, mistrial is “warranted only when no reasonable alternatives
exist.” Roberts, 2019 UT App 9, ¶ 15 (cleaned up). And we reverse
a district court’s denial of a mistrial motion only if “the incident
so likely influenced the jury that the defendant cannot be said to
have had a fair trial.” State v. Silva, 2019 UT 36, ¶ 36, 456 P.3d 718
(cleaned up). Such is not the case here.
¶22 	Sorenson moved for a mistrial immediately after Officer
testified that Sorenson called Agent a “fucking cunt.” The district
court denied the motion, finding the testimony could be easily
impeached by playing the footage of the conversation. The court
permitted Counsel a short voir dire with Officer to determine
what 	portion 	of 	the 	footage 	contained 	Sorenson’s 	alleged
statement. The relevant portion of the footage was then played in
court. While the appellate record does not contain the footage or
its transcript, only a “specific snippet” was introduced at trial. The
jurors were able to hear what Sorenson said (or didn’t say) for
themselves.
¶23 	And after playing the footage, Counsel questioned Officer
about what he heard, asking, “[Y]ou believe that he might have
said 	the 	C 	word, 	correct?” 	Officer 	said 	yes but 	eventually
admitted, “But now you’re making me question it.” Officer also
admitted that Sorenson “turned away a little bit” while he spoke
to Officer, making it difficult to hear what he said clearly. Counsel
also got Officer to admit that he did not mention Sorenson’s
statement about Agent in his incident report because he “didn’t
feel it was important enough” to include. Such rigorous cross-
examination “mitigate[s] any potential harm caused by . . .
allegedly improper testimony” when it exposes inconsistencies
and causes a witness to “undermin[e] his own earlier claim.” State

State v. Sorenson
20210884-CA 	10 	2023 UT App 159
v. Suhail, 2023 UT App 15, ¶¶ 133–34, 525 P.3d 550, cert. denied, 531
P.3d 730 (Utah 2023). This is exactly what Counsel did, thus
casting doubt on Officer’s initial testimony about what he heard
Sorenson say about Agent.
¶24 	Here, the jury’s viewing of the footage and Counsel’s
beneficial cross-examination of Officer provided a reasonable
alternative to the “strong medicine” of a mistrial. State v. Whytock,
2020 UT App 107, ¶ 16, 469 P.3d 1150, cert. denied, 481 P.3d 1043
(Utah 2021).3F
4 We are not convinced that Officer’s testimony about
Sorenson’s supposed statement so influenced the jury as to
prevent Sorenson from receiving a fair trial. Thus, the district
court did not abuse its discretion in denying his motion for a
mistrial.4F
5
4. 	Sorenson 	contends 	that 	playing 	the 	footage 	was 	not 	a
reasonable 	alternative 	because 	it 	forced 	him 	to 	introduce
prejudicial information and to alter his defense strategy mid-trial.
Because Counsel had the opportunity to question Officer about
what portion of the footage was relevant, and only that “specific
snippet” of the footage was played, we are not convinced that
additional prejudicial information was presented to the jury. And
we are also not convinced by Sorenson’s claim that playing the
footage prejudiced him by forcing him to alter his defense
strategy. Nimbly shifting strategy at trial is a standard expectation
of Counsel’s job. C.f. State v. Scott, 2022 UT App 81, ¶ 38, 514 P.3d
590 (noting that “strategies adopted by counsel are not static and
can change at any moment during trial”), cert. denied, 525 P.3d
1264 (Utah 2022). Thus, these arguments are unavailing.
5. Sorenson also suggests in passing that the district court should
have offered a curative instruction to minimize harm caused by
Officer’s testimony. But this cursory argument—addressed in just
three sentences in his opening brief—is inadequately briefed, so
we do not address it. See Utah R. App. P. 24(a)(8) (“The argument
must explain, with reasoned analysis supported by citations to
(continued…)

State v. Sorenson
20210884-CA 	11 	2023 UT App 159
III. Ineffective Assistance of Counsel
¶25 	Lastly, 	Sorenson 	argues 	Counsel 	rendered 	ineffective
assistance in failing to object when Agent called the knives
and hatchet found in Sorenson’s car “dangerous weapons.” To
prevail 	on 	an 	ineffective 	assistance 	of 	counsel 	claim, 	a
defendant must “demonstrate that (1) counsel’s representation
fell below an objective standard of reasonableness and (2) the
deficient performance prejudiced the defense.” State v. Carter,
2023 UT 18, ¶ 27, 535 P.3d 819. “Because failure to establish either
prong of the test is fatal to an ineffective assistance of counsel
claim, we are free to address [Sorenson’s] claim under either
prong.” State v. Nunes, 2020 UT App 145, ¶ 18, 476 P.3d 172
(cleaned up), cert. denied, 485 P.3d 943 (Utah 2021). We decide,
then, on prejudice.
¶26 	Proving 	prejudice 	is 	a 	“relatively 	high 	hurdle” 	and
requires 	showing 	“a 	reasonable 	probability 	exists 	that 	but
for [trial counsel’s] deficient conduct [the] defendant would
have obtained a more favorable outcome.” Id. ¶ 21 (cleaned
up). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” State v. Green, 2023 UT 10,
¶ 106, 532 P.3d 930 (cleaned up). Sorenson has not shown such
a probability. He argues Agent’s testimony about the knives
and 	hatchet 	was 	“couched 	as 	a 	legal 	conclusion” 	and
improperly “answered the specific question the jury would later
need to decide,” harming his defense. But we are not convinced
that, had Counsel objected to Agent’s testimony about dangerous
weapons, the outcome of Sorenson’s trial would have been
different.
¶27 	Importantly, Agent’s testimony was elicited largely in the
context of Sorenson’s probation agreement, which Agent read in
court and which prohibited Sorenson from owning, possessing, or
controlling 	“explosives, 	firearms, 	archery 	equipment, 	or
legal authority and the record, why the party should prevail on
appeal.”).

State v. Sorenson
20210884-CA 	12 	2023 UT App 159
crossbows, or any dangerous weapon.” (Emphasis added.) Much of
her testimony was made in reference to the probation agreement’s
definition of a dangerous weapon, not the specific statutory
language of the charged offense.
¶28 	And 	regardless, 	the 	court’s 	instructions 	to 	the 	jury
mitigated 	any 	potential 	prejudice 	resulting 	from 	Agent’s
testimony. The jury was instructed that its role as fact finder
was “to decide from the evidence what the facts are” and to
“take the law . . . , apply it to the facts, and decide if the
prosecution 	has 	proved 	the 	defendant 	guilty 	beyond 	a
reasonable 	doubt.” 	Jury 	Instruction 	31 	defined 	“dangerous
weapon” for the jury as “an object that in the manner of its use
or intended use is capable of causing death or serious bodily
injury.” This wording exactly tracks the statutory language of
the 	offense. 	See 	Utah 	Code 	§ 	76-10-501(6)(a). 	And 	Jury
Instruction 32 laid out the six statutory factors the jury was to
consider 	when 	making 	such 	a 	determination—also 	exactly
tracking the language of the statute. See id. § 76-10-501(6)(b)(i)–
(vi). Sorenson argues Agent’s testimony usurped the jury’s role,
allowing them to rely on her “assessment of the items rather
than carefully analyzing [these] statutory factors.” But apprised
of its role and instructed on the legal definition of “dangerous
weapon,” 	the 	jury 	was 	informed 	that 	it 	was 	to 	make 	the
ultimate determination of whether the knives and hatchet were
dangerous weapons within the meaning of the statute—not
Agent.
¶29 	What’s more, the jury saw the folding knives and hatchet
found in Sorenson’s car when the tools were introduced as trial
exhibits. The jurors were able to evaluate for themselves whether
the tools qualified as dangerous weapons under the statutory
factors. Given this, our confidence in Sorenson’s conviction has
not been undermined. Even had Counsel objected to Agent’s
testimony, we do not see a reasonable probability of a different
outcome at trial. Because he cannot show he was prejudiced by
Counsel’s failure to object to Agent’s testimony, Sorenson’s
ineffective assistance of counsel claim fails.

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20210884-CA 	13 	2023 UT App 159
CONCLUSION
¶30 	The district court did not abuse its discretion in denying
Sorenson’s 	bifurcation 	motion 	because 	bifurcation 	was 	not
required. Nor did it abuse its discretion in denying Sorenson’s
motion for a mistrial when another, less drastic alternative was
available. Further, Counsel did not render ineffective assistance
in failing to object to Agent’s testimony about dangerous weapons
because Sorenson was not prejudiced. Accordingly, we affirm
Sorenson’s conviction.