State v. Camara

2026 UT App 5

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
CHARLES TRACY CAMARA,
Appellant.

Amended Opinion*
No. 20220502-CA
Filed January 15, 2026

Fourth District Court, Provo Department
The Honorable Thomas Low
No. 171401533

Emily Adams, Freyja Johnson, and Rachel Phillips
Ainscough, Attorneys for Appellant
Derek E. Brown and Daniel Lee Day,
Attorneys for Appellee

JUDGE RYAN D. TENNEY authored this Amended Opinion, in
which JUDGES RYAN M. HARRIS and JOHN D. LUTHY concurred as
to Parts I, III, and IV. JUDGE HARRIS authored a separate opinion
as to Part II that is joined by JUDGE LUTHY.

TENNEY, Judge:

* This amended opinion replaces the opinion that was issued on
November 28, 2025. In response to a rehearing petition from
Camara, this court has added a new subsection that addresses
Camara’s claim that his counsel provided ineffective assistance by
failing to file a motion for a directed verdict on several counts.
This new analysis is set forth in Part III. To facilitate this, (1) the
Background has been revised to include additional facts and
procedural history relevant to that issue, (2) the previous Part III
has been renumbered as Part IV, and (3) this court has made a few
minor changes in other places to reflect the additional analysis.
State v. Camara

¶1 A jury convicted Charles Tracy Camara of two counts of
aggravated sexual abuse of a child, three counts of rape of a child,
and five counts of sodomy on a child. Camara challenges his
convictions on a number of grounds. For the reasons set forth
below, we address only three of them. On those issues, we rule as
follows:

• First, we affirm the district court’s denial of Camara’s
motions to dismiss the case relating to law enforcement
having made a copy of files from Camara’s retained expert.

• Second, we conclude that the presumption of prejudice
applies to a mistrial motion that Camara filed after learning
that a juror had overheard comments made from the
gallery during trial. Because of this, we reverse the district
court’s denial of that motion and remand with instructions
for the court to determine whether the presumption of
prejudice has been overcome.

• Finally, we conclude that Camara did not receive
ineffective assistance when his trial counsel did not file a
motion for a directed verdict on several of the counts. 1

1. As indicated above and below, Judge Tenney has written the
lead opinion, which is the controlling opinion as to Parts I, III, and
IV. The controlling opinion on the mistrial issue is the separate
opinion authored by Judge Harris.

20220502-CA 2 2026 UT App 5
State v. Camara

BACKGROUND 2

Abuse and Charges

¶2 Bree, 3 her brothers, and her mother (Mother) moved to
Springville in 2013. A few months later, Bree transferred to a
school in Provo that one of her brothers had been attending.
Camara ran an after-school soccer club at that school, which Bree
soon joined. Camara gave Bree a ride home after soccer one day,
and after talking to Mother, Camara began regularly driving Bree
and her brother to and from school and the soccer club. Bree
eventually started going over to Camara’s house after school,
where he would help her with school projects. While she was at
Camara’s house, Bree met Camara’s wife (Wife) and children.

¶3 Over the summer of 2014, Bree grew closer to Camara.
Camara took Bree on a trip to Lake Powell with his extended
family that summer. Bree’s 12th birthday was in July 2014, and
Camara threw a birthday party for her and bought her a phone.

¶4 Mother had significant health issues, and Bree’s father had
“never really been in the picture.” As a result, Bree and her
brothers had occasionally lived outside of Mother’s home. When
Bree started seventh grade in the fall of 2014, she began living
with the Camara family full time.

¶5 The Camara family lived in a two-bedroom house. When
Bree first moved in, she stayed in a bedroom with Camara’s three
children. Bree loved Camara and Wife. She referred to Camara as
her “dad” and his children as her “brothers and sister[].” Bree and
Camara would sometimes get into “really big” arguments over

2. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Suhail, 2023 UT App 15, n.1, 525 P.3d 550 (quotation simplified).

3. A pseudonym.

20220502-CA 3 2026 UT App 5
State v. Camara

“small things,” though, and Bree moved out in early 2015 after
getting into an argument with Camara about her grades. But the
two reconciled, and Bree moved back into the Camara home
sometime before she started her eighth-grade year at Centennial
Middle School.

¶6 Around that time, Bree’s relationship with Camara
changed. One night Bree and Camara “slept next to each other in
his kids’ room on . . . the bottom bunk bed.” When Bree “rolled
over him to get off the bed,” Camara said something and then
kissed her neck. After that incident, Camara started kissing Bree’s
neck more often.

¶7 Another night, Bree and Camara left the house to play
Ingress, which is an interactive game that Camara’s family and
many of their friends played using an app on their phones. 4 While
sitting on a bench outside of an art museum, Camara kissed Bree’s
neck and then asked Bree to kiss his neck, which she did. After
that occasion, Camara and Bree had other encounters in which
they kissed each other on the lips. Camara soon began touching
Bree’s breasts over her clothes, then he began touching her breasts
under her clothes, and they eventually began “dry humping with
all of [their] clothes on.”

¶8 On September 22, 2015, Camara and Bree drove to a
secluded campsite near Kyhv Peak. 5 While there, Camara touched

4. Ingress is an “augmented reality” game that “uses the mobile
device GPS to locate and interact with ‘portals’ that are in
proximity to the player’s real-world location.” Ingress (video game),
Wikipedia, https://en.wikipedia.org/wiki/Ingress_(video_game)
[https://perma.cc/N8PQ-7P5M].

5. In the briefs and the record, the parties refer to this as “Squaw
Peak.” In 2022, this peak was renamed to “Kyhv Peak” as part of
“a federal order to remove the ethnic slur ‘squaw’ from federally
owned places in the United States.” See Kyhv Peak, Wikipedia,
(continued…)

20220502-CA 4 2026 UT App 5
State v. Camara

Bree’s vagina under her clothes. On September 29, 2015, Camara
and Bree drove up to the Alpine Loop, which is a scenic drive in
the mountains near Camara’s home. On the drive up, Camara
touched Bree’s breasts under her shirt but over her bra. After
parking at a secluded campsite, they got into the back of Camara’s
SUV, at which point Camara touched Bree’s vagina and breasts
and Bree touched Camara’s penis. Camara then “inserted his
penis into” her vagina, but because it hurt, “he didn’t insert his
penis all the way.” Bree later explained that she remembered the
date of this incident because she had posted a video on Instagram
of herself dancing in the car while driving up the canyon that day.

¶9 When Bree and Camara got home from the Alpine Loop
that night, Wife was at work and his children were asleep. Camara
then “inserted his penis fully into [Bree’s] vagina and had sex with
[her]” on Camara’s bed. Afterwards, Camara told Bree that he felt
bad for cheating on Wife, and he agreed “to stop having sexual
intercourse with [Bree].”

¶10 But Camara didn’t stop. That Christmas, Camara cleaned
out a storage room so that Bree could have her own room. In the
ensuing months, Camara had sex with Bree in several places,
including the car, his bed, the couch, the living room floor, and
Bree’s new room.

¶11 At trial, Bree was asked how many times Camara had
sexual intercourse with her while she was “going to Centennial
Middle School in 9th grade,” to which she responded, “Probably
a hundred or more times.” 6 Bree testified about two instances of

https://en.wikipedia.org/wiki/Kyhv_Peak [https://perma.cc/FH27
-Z5EL]. We’ll refer to this as “Kyhv Peak” throughout this
opinion.

6. As will be discussed in more detail below in Part III, this
question contained an internal inaccuracy. Bree did not attend
Centennial Middle School during ninth grade; rather, she
(continued…)

20220502-CA 5 2026 UT App 5
State v. Camara

intercourse in particular. First, Bree recalled waking up in the
middle of the night and going to get water, and she said that she
“caught [Camara] touching his penis” in the living room. Bree
said that Camara took her back to her bedroom, “inserted his
penis into [her] vagina,” and “had sex with [her].” Second, Bree
testified about another occasion when Camara had sex with her
in his car on a back road behind Mother’s house after Camara and
Bree had an argument.

¶12 Camara engaged in other sexual activity with Bree as well.
Bree testified that he “would put his penis in [her] mouth, he
would put [her] vagina in his mouth, and he also inserted his
penis into [her] anal cavity.” Bree testified at trial that the first
time Camara put his penis in her mouth was when she was
attending Centennial Middle School. She further testified that
Camara put his penis in her mouth between 15 and 50 times.

¶13 Bree testified that Camara put his penis in her anus two or
three times. She testified that the first time occurred on Camara’s
bed and “it was really painful.” Bree testified that she
remembered going to her United States history class shortly after
this encounter and wondering if “anyone else [was] . . . going
through this” “at 13” years old.

¶14 Bree moved out of Camara’s house and back into Mother’s
house in February 2017, which was during her ninth-grade year,
after Bree got into an argument with Camara over missing a
parent-teacher conference. When Bree moved back in with
Mother, she “started to have violent . . . panic attacks” “at least
once a day” where she “couldn’t breathe” and “felt like [she] was
going to die.”

¶15 A month or two after moving out of Camara’s house, Bree
reported to law enforcement that Camara had sexually assaulted
her on several occasions while she lived with him and his family.

attended Centennial Middle School for eighth grade and
Timpview High School for ninth grade.

20220502-CA 6 2026 UT App 5
State v. Camara

In the summer of 2017, the State charged Camara with two counts
of aggravated sexual abuse of a child, three counts of rape of a
child, and five counts of sodomy on a child.

Motions to Dismiss

¶16 In April 2019, Camara provided notice to the State that he
intended to call a technology expert (Expert) at trial. Along with
this notice, Camara provided a “digital forensic report” that
Expert had created. There, Expert said that he had performed a
“physical dump” of the contents of Camara’s cell phone, and
Expert summarized the “messages between” Camara’s phone and
a phone that had been identified as belonging to Bree.

¶17 Two weeks later, the State obtained a search warrant from
a judge who was not presiding over the case. Though the warrant
itself is not in the record of this appeal, it was later described by
the parties in various motions. From those motions, it seems that
the State believed that the defense had “unlawfully acquired” or
“unlawfully possessed” Camara’s phone, and it further seems
that Expert’s report had alerted the State that Expert was now in
possession of Camara’s phone. The warrant application asserted
that Camara’s phone had been used “to commit or conceal the
commission of an offence” and contained evidence “of the
crime[s] of Aggravated Sexual Abuse of a Child, Rape of a Child,
and Sodomy of a Child.” The warrant that the State obtained
allowed it to search Expert’s residence, vehicle, and person for,
among other things, “PCs, . . . internal and external hard drives,
[and] storage devices, . . . and anywhere else Camara’s phone or
digital or paper copies of the same might be stored.” When
officers executed the warrant, they found and seized Camara’s
cell phone. Of particular note, the officers also made a copy of files
from Expert’s computer and put them onto an external hard drive.

¶18 After learning about this search, Camara filed a motion to
dismiss the case, arguing that his Sixth Amendment rights had
been violated because the State had obtained and accessed

20220502-CA 7 2026 UT App 5
State v. Camara

attorney-client communications and work product. Camara also
argued that the State had violated various rules, including rules
16(c) and 40(c) of the Utah Rules of Criminal Procedure, rules 504
and 506 of the Utah Rules of Evidence, and rule 26 of the Utah
Rules of Civil Procedure. The district court later held an
evidentiary hearing to assess whether a particular sergeant
(Sergeant) had accessed or read the files that were originally on
Expert’s computer and that had been copied onto the officers’
external hard drive. At that hearing, Sergeant testified that neither
he nor any other officer had yet “looked at the hard drive.”

¶19 The district court issued a ruling denying Camara’s motion
to dismiss. There, the court held that the State had violated rules
16(c) and 40(c) of the Utah Rules of Criminal Procedure by
“circumvent[ing] the notice requirements that a subpoena would
have imposed” and “obtaining a search warrant, ex parte, from a
different judge for the work-product of a defense expert,” and the
court further concluded that the “search warrant . . . appear[ed]
to constitute an attempt to violate” Camara’s Sixth Amendment
right to the assistance of counsel. But the court concluded that
“the undisputed evidence show[ed] that the reports and work
product were never examined by the State.” As a result, the court
concluded that there was no basis for dismissing the case. The
court did, however, order the State “to return all materials
obtained from [Expert] except the phone itself.” And during the
course of proceedings on this motion, the State also agreed to not
“present any affirmative evidence . . . arising from its possession
or analysis of the extraction performed” on Camara’s phone by
Expert that had been “obtained” as part of “the search warrant
executed at [Expert’s] residence.”

¶20 Pursuant to the court’s order, the defense obtained the
external hard drive onto which officers had copied files from
Expert’s computer. After doing so, Expert conducted a forensic
examination of the hard drive. In Expert’s view, this examination
showed that, contrary to Sergeant’s testimony, someone had

20220502-CA 8 2026 UT App 5
State v. Camara

accessed the files that had been copied onto the external hard
drive. In light of this, Camara filed another motion to dismiss.

¶21 The court held a new evidentiary hearing to determine
what had happened. After that hearing, the court issued a written
ruling denying this second motion to dismiss. In that ruling, the
court found that while the files that were copied onto the external
hard drive contained some “potential work product,” there was
“no evidence that any work product was accessed” by the State
and “no evidence that any attorney-client communications [had]
been improperly disclosed.” The court also found that, even if the
State had accessed other information (i.e., information that was
not attorney-client communications or work product), that
information had already been “voluntarily disclosed” or, by rule,
would be required to be disclosed to the State anyway. From all
this, the court ruled that there had been “no Sixth Amendment
violation” and “no appreciable impact on [Camara’s] right to
effective assistance of counsel,” and it further ruled that “any
procedural errors can and [had] been corrected by” the court’s
prior order. The court clarified that its prior order would “remain
in effect,” and it then ordered the State “to destroy the copy of the
hard drive provided by [Expert] to the State.” In light of all this,
the court concluded that “dismissal [was] an inappropriate
sanction in this case.”

Trial

¶22 A five-day jury trial was held in the fall of 2021. At that
time, the Utah Supreme Court’s administrative orders for court
operations during the COVID-19 pandemic were in effect. 7
Pursuant to those orders, jurors were seated in the jury box as well

7. See Administrative Order for Court Operations During Pandemic,
Utah Sup. Ct. & Utah Jud. Council (Sep. 17, 2021),
https://www.utcourts.gov/content/dam/alerts/docs/20210917%20
-%20Pandemic%20Administrative%20Order.pdf [https://perma.c
c/B5HL-V3FG].

20220502-CA 9 2026 UT App 5
State v. Camara

as in the courtroom gallery in order to achieve the required level
of social distancing. In an apparent nod to the fact that she was
the alleged victim, the court permitted Bree to sit in the gallery
during the trial. See Utah R. Evid. 615(a)(4) (creating an exception
to the exclusionary rule for “a victim in a criminal proceeding
where the prosecutor agrees with the victim’s presence”).

¶23 The State presented its case through the testimonies of
Bree, some of Bree’s friends and family, medical experts, and law
enforcement officers. In the defense case, Camara presented
testimony from Expert and from various family and friends. One
of these witnesses was Wife, who testified that she and the
Camara children were with Camara and Bree during the drive on
September 29, 2015—and, thus, that the alleged sexual encounter
that Bree had described on that date had not happened.

¶24 During the portion of Wife’s testimony in which she
discussed this drive, the prosecutor thought he heard the word
“bullshit” coming from the direction of the gallery where Bree
was sitting, and the prosecutor also noticed that Juror 10 had
“perk[ed] up and looked” toward Bree. The prosecutor asked for
a sidebar and then told the district court what he had heard and
seen. After the sidebar, the court “instruct[ed] the jurors that any
comments that they may hear from the gallery are not testimony,
are not evidence, [and] are not to be considered as such.” The
court warned that if there were any further comments, it would
“have to clear the gallery.”

¶25 The next witness who testified as part of the defense case
was Camara’s daughter. After her testimony concluded, three
jurors informed the bailiff that they had heard “comments from
the gallery,” some of which seemed to have come “from the
woman in yellow.” Unbeknownst to the jurors, the woman in
yellow was Bree’s attorney, who had been sitting next to Bree in
the gallery.

20220502-CA 10 2026 UT App 5
State v. Camara

¶26 The court then questioned the three jurors separately about
what they had heard. 8

• Juror 7 said that, sometime before the court’s instruction
during Wife’s testimony, (s)he had overheard some
indistinct chatter, and (s)he also said that at one point, (s)he
had heard either Bree or the person “she was talking to”
say, “[S]he’s lying.” Juror 7 said that (s)he was not
“influenced” by the statement and that (s)he could “focus
on what was said . . . from the stand.”

• Juror 9 said that before the court’s instruction during Wife’s
testimony, (s)he had overheard “laughing” and indistinct
“talking” but “didn’t hear any specific words.”

• Juror 10 said that before the court’s instruction, (s)he had
overheard Bree “saying that [Wife] was not in the car” and
“she’s lying.” Juror 10 also said that after the court’s
instruction, and during the testimony in which Wife “was
talking about dates when her children were
homeschooled,” (s)he had overheard, “I remember the
date, it’s 2016, and I wasn’t even there,” which (s)he
“believe[d]” came from the woman “wearing the yellow
blazer.”

¶27 After questioning these jurors, the court excluded Bree’s
counsel from the courtroom for the remainder of trial. The next
day, Camara’s attorney (Counsel) 9 moved for a mistrial, claiming
that “the statements from the gallery” evidenced “an intention to
thwart the process.” The court denied the motion based on its
conclusion that there had been no “articulation of prejudice.”

8. The record does not indicate the genders of the three jurors in
question. When referring to them individually, we’ll use “(s)he”
as the singular pronoun.

9. Camara was represented by two attorneys below. We’ll refer to
them with the singular “Counsel” for convenience.

20220502-CA 11 2026 UT App 5
State v. Camara

Before deliberations began, the court excused Jurors 9 and 10 since
they were alternates.

¶28 At the close of deliberations, the jury convicted Camara on
all counts.

Rule 23B Remand

¶29 Camara appealed, challenging his convictions on several
grounds. Camara also filed a motion for a remand under rule 23B
of the Utah Rules of Appellate Procedure, asking this court to
remand to the district court to create a record regarding seven
additional claims of ineffective assistance. Following oral
argument, we issued an order granting Camara’s request for a
remand as to some (though not all) of these claims. After an
evidentiary hearing, the district court entered findings of fact
addressing the claims for which this court had remanded.

ISSUES AND STANDARDS OF REVIEW

¶30 Camara raises several issues on appeal. For the reasons set
forth below, we address three of them.

¶31 First, Camara argues that the district court abused its
discretion by not dismissing the case as a “sanction” for the State’s
actions relating to Expert’s computer. We review a district court’s
decision on whether to dismiss a case as a discovery sanction for
abuse of discretion. See Chard v. Chard, 2019 UT App 209, ¶ 30, 456
P.3d 776; see also Sleepy Holdings LLC v. Mountain West Title, 2016
UT App 62, ¶ 9, 370 P.3d 963. When an underlying issue presents
“a mixed question of law and fact,” “we review the court’s factual
findings for clear error, and we review its legal conclusions,
including its application of law to the facts of the case, for
correctness.” State v. Hebeishy, 2022 UT App 136, ¶ 12, 522 P.3d
952.

20220502-CA 12 2026 UT App 5
State v. Camara

¶32 Second, Camara argues that the district court abused its
discretion by denying his motion for a mistrial based on jurors
hearing comments from the gallery. “We review the denial of a
mistrial motion for abuse of discretion.” State v. Bermejo, 2020 UT
App 142, ¶ 20, 476 P.3d 148. To the extent that this analysis
implicates Camara’s constitutional right to trial by an impartial
jury, the “interpretation of the Utah Constitution is a question of
law that we review for correctness.” State v. Soto, 2022 UT 26, ¶ 13,
513 P.3d 684 (quotation simplified).

¶33 Finally, Camara argues that he received ineffective
assistance because Counsel did not file a motion for a directed
verdict on several counts. Because this is raised for the first time
on appeal and there is no lower court ruling to review, we decide
this issue as a matter of law. See State v. Thomas, 2025 UT App 145,
¶ 15, 579 P.3d 416.

ANALYSIS

I. Motions to Dismiss

¶34 On appeal, Camara first challenges the district court’s
decision not to dismiss the case as a sanction for the State having
made a copy of Expert’s files and, in his view, “access[ing]” them.
As he did below, Camara argues that the State’s actions violated
both his Sixth Amendment rights and various rules of procedure
relating to discovery.

¶35 With respect to his Sixth Amendment claim, Camara relies
heavily on Shillinger v. Haworth, 70 F.3d 1132 (10th Cir. 1995).
There, the Tenth Circuit held that “a prosecutor’s intentional
intrusion into the attorney-client relationship constitutes . . . a per
se violation of the Sixth Amendment” under which prejudice
“must be presumed.” Id. at 1142. Camara asks us to adopt that
rule. And with the proposed presumption of prejudice as the
backdrop, Camara argues that it was an abuse of discretion for the
court to not dismiss the case. In his view, the “sanctions” imposed

20220502-CA 13 2026 UT App 5
State v. Camara

by the court “did not resolve the underlying damage caused by
the State’s actions” and “the only appropriate remedy was
dismissal.” With respect to his rules-based claim, Camara likewise
argues that the court abused its discretion by not imposing an
adequate sanction. We disagree. 10

¶36 Starting with the constitutional claim, we note that
Shillinger’s adoption of a presumption of prejudice was recently
overruled by the Tenth Circuit. See United States v. Hohn, 123 F.4th
1084 (10th Cir. 2024) (en banc), cert. denied, No. 24-1084, 2025 WL
2906501 (U.S. Oct. 14, 2025). There, the en banc Tenth Circuit held
“that a Sixth Amendment violation of the right to confidential
communication with an attorney requires the defendant to show
prejudice.” Id. at 1088. And the court expressed its view that
Shillinger had “misinterpreted” and “misappli[ed]” certain
“Supreme Court precedents” in holding to the contrary. Id. at
1102, 1105–06.

¶37 The precedents bear this out. In Weatherford v. Bursey, the
United States Supreme Court reversed the Fourth Circuit’s
conclusion that a presumption of prejudice applies “whenever the
prosecution knowingly arranges or permits intrusion into the
attorney-client relationship.” 429 U.S. 545, 549–51 (1977)
(quotation simplified). The Court instead held that unless there is
“at least a realistic possibility of injury to [the defendant] or
benefit to the State, there can be no Sixth Amendment violation.”
Id. at 558; see also 3 Wayne R. LaFave et al., Criminal Procedure
§ 11.8(b) (4th ed. 2024) (explaining that Weatherford involved “an
invasion of the lawyer-client relationship that had a significant
investigative justification,” and it “makes clear that such an
invasion will not be deemed to violate the Sixth Amendment in
the absence of a realistic likelihood of having adversely impacted
the defense at trial”). And in United States v. Morrison, the

10. As noted, Camara filed two motions to dismiss relating to the
external hard drive. On appeal, Camara says that he is challenging
the denial of both motions.

20220502-CA 14 2026 UT App 5
State v. Camara

Supreme Court reversed the dismissal of an indictment based on
an alleged Sixth Amendment violation, explaining that “absent
demonstrable prejudice, or substantial threat thereof, dismissal of
the indictment is plainly inappropriate, even though the violation
may have been deliberate.” 449 U.S. 361, 363–65 (1981); see also 3
LaFave et al., Criminal Procedure § 11.8(b) (explaining that Morrison
has been understood to require a showing of prejudice for even
an “unjustified invasion,” so “only prejudice that is indelible and
holds open the possibility of an unjust conviction would justify
[a] dismissal with prejudice”).

¶38 In light of these authorities, we disagree with Camara’s
suggestion that, just because the State obtained a copy of Expert’s
files, a presumption of prejudice applied. Instead, under
precedent from the Supreme Court, Camara still needs to show
that the alleged violation of his Sixth Amendment rights
prejudiced him.

¶39 This leads to the question of whether the district court
acted within its discretion in declining to order the dismissal of
the case. On this front, we note that, even with the presumption
of prejudice, Shillinger held that dismissal of the case is only
appropriate “in extreme circumstances.” 70 F.3d at 1143. And this
general reluctance to order dismissal in such circumstances
comports with the approach taken by other courts. For example,
the United States Supreme Court has held that “the remedy
characteristically imposed” for a Sixth Amendment violation “is
not to dismiss the indictment but to suppress the evidence” that
was unlawfully obtained or instead “order a new trial if the
evidence has been wrongfully admitted and the defendant
convicted.” Morrison, 449 U.S. at 365. The Court has also held that
Sixth Amendment “remedies should be tailored to the injury
suffered from the constitutional violation and should not
unnecessarily infringe on competing interests.” Id. at 364. In
another more recent case, the Court held that “a remedy must
neutralize the taint of a constitutional violation, while at the same
time not grant a windfall to the defendant or needlessly squander

20220502-CA 15 2026 UT App 5
State v. Camara

the considerable resources the State properly invested in the
criminal prosecution.” Lafler v. Cooper, 566 U.S. 156, 170 (2012)
(quotation simplified).

¶40 As discussed, the district court in this case held two
evidentiary hearings to determine what had happened. From the
evidence developed at those hearings, the court ruled that the
State had indeed acted improperly by making a copy of Expert’s
files. But even so, the court ultimately found after the second
hearing that there was “no evidence that any work product was
accessed” by the State, “no evidence that any attorney-client
communications [had] been improperly disclosed,” “no
appreciable impact on the defendant’s right to effective assistance
of counsel,” and “[n]o ongoing prejudice to the defendant’s case.”
Having reviewed the record, we see no basis for overturning
those findings.

¶41 Without any evidence that the State had accessed any
confidential information, the district court then had discretion to
fashion a remedy that was “appropriate in the circumstances,”
Morrison, 449 U.S. at 365, even if that remedy was something short
of outright dismissal. And this is what the court did. As noted, the
State agreed in the course of these proceedings to not “present any
affirmative evidence . . . arising from its possession or analysis of
the extraction performed on [Camara’s] cellular phone by
[Expert],” and the court ordered the State before trial to “destroy
the copy of the hard drive” that it had obtained. On appeal,
Camara points to no evidence that the State used or offered at trial
that was obtained from Expert’s computer. Thus, it seems that the
court’s orders and the State’s agreement collectively deprived the
State of any benefit from the illegality, while still allowing the case
to proceed. This was an appropriate exercise of the court’s
discretion.

¶42 Camara nevertheless points out that, even “without
finding a Sixth Amendment violation, the district court had
discretion to dismiss the case” under rule 25 of the Utah Rules of

20220502-CA 16 2026 UT App 5
State v. Camara

Criminal Procedure. That rule provides that, “[i]n its discretion,
for substantial cause and in furtherance of justice, the court may
. . . order an information or indictment dismissed.” Utah R. Crim.
P. 25(a). But this court has explained that, under this rule,
“dismissals grounded solely on prosecutorial misconduct are
rarely appropriate.” State v. LoPrinzi, 2014 UT App 256, ¶ 9, 338
P.3d 253 (quotation simplified).

¶43 While this rule contemplates that a party may be
sanctioned, it places the choice of sanction within the discretion
of the district court. And again, the district court chose to
sanction the State by preventing it from using any
evidence obtained through the seizure of files from Expert’s
computer. In these circumstances, we see no basis for concluding
that the court abused its discretion by not going further and
dismissing the case.

II. Mistrial Motion11

¶44 Camara next claims that the district court abused its
discretion when it denied his motion for a mistrial based on
outside juror contacts. In Camara’s view, those contacts violated
his right to an impartial jury as provided by both the United States
and Utah Constitutions. Camara thus argues the district court
should have applied a presumption of prejudice under the terms
set forth in State v. Soto, 2022 UT 26, 513 P.3d 684. The State
disagrees, contending that the presumption of prejudice does not
apply.

¶45 In the separate opinion, the majority concludes that the
presumption of prejudice does apply, and it accordingly reverses
and remands for the district court to determine whether the
presumption was rebutted. Contrary to the views set forth in the

11. As indicated, the separate opinion represents the controlling
opinion of this court on this issue. The views set forth in this Part
II are Judge Tenney’s alone and constitute the dissent as to this
issue.

20220502-CA 17 2026 UT App 5
State v. Camara

separate opinion, I don’t believe that this case triggers a
presumption of prejudice under Soto. I would instead review the
court’s decision under ordinary mistrial principles, and under
those principles, I would affirm the denial of Camara’s motion. 12

A. Juror 7 Was Not Exposed to an Outside Contact

¶46 Article I, Section 12 of the Utah Constitution guarantees a
criminal defendant the right to trial “by an impartial jury.” This
right “prohibits undue outside influence on the jury at any point
between the jury’s empanelment and the rendering of judgment,”
because “certain outside communications are so apt to
consciously or unconsciously influence the judgment of the juror
as to likely violate the guarantee of an impartial jury,” Soto, 2022
UT 26, ¶¶ 18, 25 (quotation simplified). 13

12. I agree with the separate opinion that although State v. Soto,
2022 UT 26, 513 P.3d 684, was issued after Camara’s trial, it’s
appropriate to assume that Soto applies to this appeal. I also
recognize that the interpretations of Soto advanced in the two
opinions in this appeal differ in some respects from the
interpretations offered by the parties in their respective briefs. But
the question of what Soto means and how it should be applied to
the facts of this case was fully briefed and argued by both sides,
so, like the separate opinion, I see nothing amiss about the judges
on this panel doing their best to set forth a faithful reading of it.
Finally, I agree with the separate opinion that, because Jurors 9
and 10 were alternates and were excused before deliberations, the
Soto analysis in this case should focus on Juror 7.

13. Soto recognized that the “United States Constitution provides
the same protection,” but it then explained that while it would cite
some federal cases as persuasive authority, it would ultimately
ground its analysis in the state constitutional right. 2022 UT 26,
¶¶ 14, 20–21.

20220502-CA 18 2026 UT App 5
State v. Camara

¶47 Reviewing Soto, it seems to me that the case poses
something of a threshold question: whether there has been an
“outside influence,” “outside communication[],” or “improper . . .
contact” with the jury. Id. ¶¶ 18, 25, 32. (For simplicity, I’ll refer to
such an occurrence as an “outside contact” moving forward.) The
supreme court in Soto held that if it’s shown that there was an
outside contact with a juror, a court should then use a “balancing
test” to determine whether the presumption of prejudice should
apply. Id. ¶ 39. This balancing test “considers who said what and
the circumstances surrounding the contact.” Id. (emphases in
original). If the court concludes that prejudice should be
presumed under this three-part test, the burden is then “on the
prosecution to prove that the unauthorized contact did not
influence the juror.” Id. ¶ 32 (quotation simplified). 14

14. The separate opinion repeatedly couches its analysis in terms
of whether there was an “unauthorized contact.” As will be clear
soon enough, I disagree with the separate opinion’s conclusion
that what matters here is whether the contact was authorized by
the rules of evidence or courtroom procedure. But I think it
important to note that I do agree with the separate opinion that,
under the terms set forth in Soto, an initial “contact” of some sort
must occur to trigger the three-part test that is then used to
determine whether the presumption of prejudice applies. Were it
otherwise, it would seem that this three-part test would be
applicable whenever anything objectionable was said, even if it
was said on the stand during witness testimony, which could
potentially upend ordinary mistrial processes entirely. So to get a
case into Soto-territory, it seems that there must be some initial
triggering contact. The difference between my opinion and the
separate opinion isn’t whether this is so; rather, it’s what that
contact looks like.
As I explain below, I think that in most cases, what matters
is whether that contact occurred outside the courtroom. I’ll go
ahead and note here that Soto could at least arguably be read as
(continued…)

20220502-CA 19 2026 UT App 5
State v. Camara

¶48 I don’t believe that there was an outside contact in this case
for purposes of the Soto test. And as an initial matter, I note that
the word “outside” carries outsized importance in Soto. The
majority opinion used that word twenty-two times, and it
relatedly referred to contacts from “outsiders” three more times.
So this begs the question: outside of what?

¶49 In an ordinary sense, I think that most people would
instinctively assume that an “outside contact” with jurors who are
sitting in a trial would refer to a contact that happened outside the
trial—and, indeed, outside the courtroom. As it turns out, that’s
exactly how Soto and the past Utah cases that it relied on tend to
use that term. Looking at Soto and its supporting Utah cases, I
think it’s significant that in almost every case, the
communications at issue happened outside the courtroom. See,
e.g., id. ¶¶ 84–85 (applying a presumption of prejudice based on a
conversation that occurred in an elevator between a bailiff, a court
IT technician, and jurors); State v. Erickson, 749 P.2d 620, 620–21
(Utah 1987) (applying a presumption of prejudice where a juror
had a “four or five minute[]” conversation with “a key witness”
“in the hall outside the courtroom” “during [a] recess”); State v.
Pike, 712 P.2d 277, 280–81 (Utah 1985) (applying a presumption of
prejudice where “an important prosecution witness . . . engaged
in conversation in the hall of the courthouse during a recess with
three jurors regarding a personal incident”); State v. Anderson, 237
P. 941, 944 (Utah 1925) (applying a presumption of prejudice
where a juror rode to and from court with a witness throughout a
three-week trial); State v. Thorne, 117 P. 58, 66 (Utah 1911)

treating this as something that should be folded into the third part
of its test (which, as will be discussed, looks to “special
circumstances”). If this is what Soto intended, I would reach the
same result in this appeal by concluding that this circumstance
(i.e., that the contacts in question occurred inside the courtroom)
is dispositive as to whether a presumption of prejudice should
apply in this case, and I would do so for largely the same reasons
that I set forth below in the remainder of my opinion on this issue.

20220502-CA 20 2026 UT App 5
State v. Camara

(applying a presumption of prejudice where a juror left his lunch
table during deliberations and went with an officer of the court to
another part of the building, where he spoke on the phone to
someone else).

¶50 This pattern comports with what I think the phrase
“outside contact” with jurors would naturally mean. And there’s
also some logic to drawing the line here. In one key passage, Soto
stated that the reason a presumption of prejudice might attach
when there has been an outside contact with jurors is that it can
be “difficult, if not impossible,” at that point “to prove how [the]
improper contact may have influenced a juror.” 2022 UT 26, ¶ 36
(quotation simplified). In this sense, Soto seems to have viewed
this as a problem of proof. But as the State pointed out at oral
argument in this appeal, when a contact occurs inside the
courtroom (even if it occurs off the record), that contact has
happened within a decidedly controlled environment. Even if the
judge did not personally observe or hear the contact, the judge can
still readily determine with precision exactly who was where,
who said what, and who heard what. Everyone in the room can
be promptly subjected to on-the-record questioning from the
court, and the encounter will in most instances be supported by
audio and visual evidence. Put simply, the moment one gets
outside the courtroom itself, any number of variables are
introduced into the mix, which is why I think the place of the
contact matters (or, at least, has mattered in Soto and most of the
Utah cases it relied on).

¶51 Reviewing the Utah cases cited by Soto that applied a
presumption of prejudice, I do see two that involved
communications between jurors and outsiders that may have
occurred in the courtroom. In State v. Swain, we applied a
presumption of prejudice where defense counsel noticed that,
during a “short recess,” one of the jurors approached one of the
State’s witnesses, at which point the juror and the witness had a
conversation about their upcoming high school reunion. 835 P.2d
1009, 1010–11 (Utah Ct. App. 1992). And in Logan City v. Carlsen,

20220502-CA 21 2026 UT App 5
State v. Camara

we also applied a presumption of prejudice where the defendant
overheard a bailiff “discussing sentencing and jurisdiction with
the jury” “during a recess.” 799 P.2d 224, 225–27 (Utah Ct. App.
1990). So far as I can tell, neither decision explicitly says that the
conversations occurred outside the courtroom, and depending on
the layout of the respective courthouses, it may have been
possible that they did occur outside the courtroom. But it seems
reasonable to assume that either or perhaps both of these
encounters occurred in the courtroom, given that the defense
attorney in Swain and the defendant in Carlsen might not have
been in position to have overheard the relevant conversations if
the jury had been taken out of the courtroom and back to a
secluded place.

¶52 But even if it is true that Swain and Carlsen involved
communications that occurred in the courtroom (which, again, is
at least a touch unclear), I think it’s significant that both of these
cases involved direct conversations between jurors and outsiders.
Indeed, as the State points out in its brief, the past Utah cases that
have applied a presumption of prejudice have all involved
situations where there was “direct extra-judicial communication”
between jurors and outsiders. And as indicated by the
parentheticals attached to the string cite above, Soto and its
supporting Utah cases typically involved not just
communications that occurred outside the courtroom, but also
direct communications between jurors and outsiders. 15

15. Indeed, in State v. Norton, the Utah Supreme Court seemed to
apply ordinary mistrial rules even though there had been a direct
conversation between an outsider and jurors. 675 P.2d 577, 582
(Utah 1983), overruled on other grounds by State v. Hansen, 734 P.2d
421 (Utah 1986), and abrogated on other grounds by State v. Guard,
2015 UT 96, 371 P.3d 1. There, “an elderly man approached a
member of the jury” during a recess of a capital murder trial and
“said in a loud voice, ‘I made up my mind a long time ago; any
(continued…)

20220502-CA 22 2026 UT App 5
State v. Camara

¶53 But what happened here does not fit this pattern. As noted,
the conversation that Juror 7 overheard happened in court, not
outside of court. And it didn’t involve a direct communication
between an outsider and a juror. Rather, Juror 7 simply overheard
a portion of a conversation that two other people were having in
the gallery. This case therefore falls outside the parameters of the
cases relied on by Soto. 16

time a guy walks in a bank and shoots two people, he deserves to
die.’” Id. On appeal, the supreme court affirmed the denial of a
mistrial motion that was based on this encounter, and the
supreme court did so without purporting to apply a presumption
of prejudice. See id. Instead, the court simply said that, “after
reviewing the record,” it was “convinced that this event caused
no prejudice to the defendant and that the [district] court handled
the matter appropriately.” Id. (quotation simplified).

16. To be clear, Soto does say that the presumption of prejudice
can apply when there has been “inadvertent conduct and
communications directed at a juror.” 2022 UT 26, ¶ 33 n.7
(emphasis added). But Soto didn’t give an example of what kind
of “inadvertent” communication would qualify, and I’m not
totally sure how a communication could be both “inadvertent”
and “directed at a juror.” In my mind, “inadvertent” suggests
something accidental, while “directed at” suggests something
intentional. Given the nature of the authorities relied on by Soto—
which, as noted, were overwhelmingly based on communications
that occurred outside the courtroom—what I think Soto is
suggesting in this passage is that if an outsider inadvertently
communicates with jurors outside the courtroom, a presumption
of prejudice can apply, whereas a more direct conversation
between a juror and an outsider that occurs in court could suffice
as well. But on this, further guidance from the supreme court—
whether it be in this appeal or some other appeal—would
certainly be helpful.

20220502-CA 23 2026 UT App 5
State v. Camara

¶54 True, we’re a common law court, and case-by-case legal
development is indeed part of our system. So even though Soto
didn’t contemplate this exact scenario, we certainly could
conclude that it is covered by Soto’s general principles. And here,
the separate opinion concludes that, based on the principles set
forth in Soto, the overheard conversation should qualify because
it was “unauthorized,” meaning that it was “off the record.”

¶55 Unlike the separate opinion, I would not draw the line in
that place. Before explaining why, let me say up front that I don’t
believe that Soto or any past Utah decision clearly answers this
question. As a result, while my colleagues and I see this
differently, I see this as a good faith disagreement about a novel
question. Regardless, I’m not persuaded that we should extend
Soto past the terms set forth in that case or the prior Utah cases,
that rule 47(l) of the Utah Rules of Civil Procedure compels us to
do so, or that doing so is necessary to protect the interests
underlying the right in question, and I’m further concerned about
the implications of the separate opinion on future cases.

¶56 First, as explained, neither Soto nor the past Utah cases that
applied a presumption of prejudice involved jurors overhearing
or seeing something that happened in court during trial
proceedings. Indeed, at oral argument in this appeal, Camara’s
appellate counsel was asked if she was aware of any past Utah
case in which the appellate courts had applied the presumption
of prejudice to a situation where “something . . . happened in front
of the jurors during the trial itself, as opposed to outside of the
trial,” and Camara’s appellate counsel could not point to any such
case. I’m not aware of any such case either.

¶57 But in State v. Cardall, 1999 UT 51, 982 P.2d 79, our supreme
court expressed some wariness about extending this particular
rule to new scenarios. There, the defendant asserted that the
presumption of prejudice should apply because jurors had
observed an interaction that occurred during a recess between the
victim and her mother on the stand. Id. ¶¶ 12, 22. But the supreme

20220502-CA 24 2026 UT App 5
State v. Camara

court rejected this assertion, in part, because the defendant had
“failed to cite any Utah case which holds that incidents like the
witness stand incident invoke a presumption of prejudice.” Id.
¶ 22. By extending the presumption of prejudice to an overheard
conversation that happened in court during the trial, however, the
separate opinion is taking Soto to a place that neither Soto nor any
past Utah case has previously gone. Cardall suggests that we
should be wary of doing so.

¶58 Second, the separate opinion places great weight on the
fact that rule 47(l) of the Utah Rules of Civil Procedure prohibits
“off-the-record communication between jurors and lawyers,
parties, witnesses or persons acting on their behalf.” In the
separate opinion’s telling, “all five justices agreed that off-the-
record contact . . . implicates the presumption of prejudice.” But I
find that hard to square with what the Soto majority actually said.

¶59 The Soto majority noted that the Soto dissent had “relie[d]
on Utah Rule of Civil Procedure 47(l) in its analysis.” 2022 UT 26,
¶ 58. The Soto majority then stated that “while our rules provide
useful guidelines for juror behavior, they do not and cannot
supplant our case law interpreting the breadth of the
constitutional right to trial by an impartial jury.” Id. (quotation
simplified). Continuing, the majority said, “Fortunately, rule
47(l)’s limitations on outside communications are broader than
our constitutional limits and thus create no constitutional
problems.” Id. ¶ 59. The majority noted that rule 47(l) “prescribes
a noble standard of juror behavior, but it does not tell us when a
court must presume prejudice from such communication”;
instead, in the majority’s view, the “answer” to “that question”
must be drawn from “our case law.” Id. Wrapping things up, the
majority insisted that “the dissent’s reliance on rule 47(l) [was]
misplaced,” and it instead said that “[w]hen deciding whether a
juror contact with an outsider triggers the rebuttable presumption
of prejudice, we do not apply rule 47(l).” Id. ¶ 61.

20220502-CA 25 2026 UT App 5
State v. Camara

¶60 Despite all this, the separate opinion seems to assume that
while the Soto majority did not think that rule 47(l) should be used
as part of the three-part test, rule 47(l) should be used when
assessing the initial question of whether there was an
impermissible “contact.” But if this is what the Soto majority
meant, it certainly didn’t say that. This seems to me to be a
meaningful omission. Indeed, I also think it significant that with
one exception, the only references to rule 47(l) in the Soto majority
at all are in paragraphs 58 to 61, which, as evidenced by the
statements I’ve just catalogued, are part of a discussion of why
rule 47(l) is inapplicable to the constitutional question that was
before the court. 17 And again, as part of the discussion in
paragraphs 58 to 61, the Soto majority insisted that rule 47(l) could
not “supplant” prior case law “interpreting the breadth of the
constitutional right to trial by an impartial jury.” Id. ¶ 58
(quotation simplified). Given that framing, it seems odd to me to
suggest that the initial question of whether a triggering “contact”
occurred—which, in my mind, would be part of the same
constitutional question—is governed by a rule of procedure,
rather than the prior cases that interpreted the scope of the same
constitutional right in question. 18

17. The one additional reference to rule 47(l) is found in Soto, 2022
UT 26, ¶ 14 n.3. There, the majority expressed its view that the
“rules of procedure” “can only add to and never diminish or
supplant our constitutional requirements of a criminal
defendant’s right to trial by an impartial jury.” Id. (quotation
simplified). In my mind, this reiterates that the majority saw rule
47(l) as being distinct from the constitutional right in question.

18. Moreover, as I mentioned above, in Norton, the Utah Supreme
Court considered a case in which there was an inflammatory
statement made to jurors that was very clearly made “off the
record” as that phrase has been defined by the separate opinion
in this appeal. See 675 P.2d at 582. And yet even so, on appeal, the
(continued…)

20220502-CA 26 2026 UT App 5
State v. Camara

¶61 In short, given the language used by the Soto majority and
the development of our cases, I’m not persuaded by the separate
opinion’s assertion that rule 47(l)’s on-the-record/off-the-record
distinction is controlling here in this constitutional case.

¶62 Third, I recognize that Soto suggests in a few places that
what matters is that the jury should not be tainted by receiving
improper information. See, e.g., id. ¶ 27 (suggesting that what’s
important is ensuring that the jury’s consideration is limited to
evidence developed on “the witness stand in a public courtroom
where there is full judicial protection of the defendant’s right[s]”
(quotation simplified)); id. ¶ 30 (suggesting that what’s important
is preventing the jury from “being polluted by influences other
than that which are produced by the legal evidence and the law
governing the case” (quotation simplified)). And I readily agree
that, to the fullest extent possible, jurors should be kept free from
outside taint.

¶63 But even so, I’m not sure that the on-the-record/off-the-
record line is the one that our past cases have drawn when it
comes to the question of whether a defendant’s constitutional
right to a fair trial has been violated. Indeed, our supreme court’s
decision in Cardall suggests otherwise. Again, the supreme court
there considered a case in which jurors observed an interaction
between the victim and her mother that occurred during a recess
and outside the presence of the judge, see Cardall, 1999 UT 51,
¶¶ 12–13, so it would presumably qualify as an off-the-record
moment. And yet on appeal, the supreme court held that this did
not trigger a presumption of prejudice because there had been “no

supreme court affirmed the denial of a mistrial motion without
highlighting the fact that the communication was off-the-record
or purporting to apply a presumption of prejudice. See id. If what’s
actually driving the analysis at this initial step is whether there
was an off-the-record communication, it seems that Norton’s
analysis would have been couched in very different terms.

20220502-CA 27 2026 UT App 5
State v. Camara

conversation between witnesses and jurors, just a quiet exchange
between [the victim] and her mother.” Id. ¶ 21.

¶64 Perhaps more importantly, viewing the problem from a
systemic perspective, I don’t think that a presumption of
prejudice needs to apply whenever there’s the possibility that
jurors may have been tainted by hearing or seeing something that
they shouldn’t have heard or seen. After all, whenever a witness
says something on the stand and a court then sustains an objection
to that statement after the fact, the jury has heard something that
it shouldn’t have heard. But when that happens, the ordinary
course of things is for the court to instruct jurors to disregard what
they heard and then move on.

¶65 And this is where the ordinary mistrial standard comes
into play. If the improper testimony was bad enough, an
adversely affected party can move for a mistrial. If a party files
such a motion, a mistrial “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. Sorenson, 2023 UT App 159, ¶ 21, 542 P.3d 529 (quotation
simplified). In any number of cases, Utah’s appellate courts have
applied this ordinary standard (i.e., without also applying a
presumption of prejudice) to determine whether the defendant
could still receive a fair trial even though the jury heard
something it shouldn’t have heard. To pick just a few, these
include cases in which jurors heard that that the defendant in a
drug prosecution owed $2,400 to “the State Narcotics and Provo
City Police Department,” State v. Creviston, 646 P.2d 750, 753 (Utah
1982) (quotation simplified); that one of the alleged victims of sex
abuse had recently attempted suicide based on her anguish about
the alleged abuse, see State v. Meraz-Zamorano, 2025 UT App 110,
¶ 41, 575 P.3d 271, petition for cert. filed, July 29, 2025 (No.
20250846); that the defendant in an assault prosecution had been
involved in “a similar situation several years earlier,” State v.
Graydon, 2023 UT App 4, ¶ 59, 524 P.3d 1034 (quotation
simplified); that, at the time of the alleged offense, the defendant

20220502-CA 28 2026 UT App 5
State v. Camara

was “‘out’ of jail ‘on [an] ankle monitor,’” State v. Whytock, 2020
UT App 107, ¶¶ 15–24, 469 P.3d 1150; that the defendant had
invoked his right to remain silent after being arrested, see State v.
Sosa-Hurtado, 2018 UT App 35, ¶¶ 55–58, 424 P.3d 948, aff’d, 2019
UT 65, 455 P.3d 63; and that the defendant had a history of
“getting violent” with the victim, State v. Yalowski, 2017 UT App
177, ¶¶ 17–22, 404 P.3d 53.

¶66 True, what happened in this case involved a juror hearing
something from someone who wasn’t on the stand. This is a
difference, but I’m not persuaded that it’s a meaningful
difference, much less one that transforms something that was
objectionable into a problem of constitutional dimension. If Bree
(or, somehow, her attorney) had said the same exact thing or even
something more inflammatory from the stand instead of from the
gallery, no one would blink an eye at evaluating the effects of that
statement on jurors through the ordinary mistrial rule. I don’t see
why, as a functional matter, the fact that this was said from the
gallery makes this so different that an entirely different rubric
should now apply. If the ordinary mistrial standard is sufficient
to protect a defendant’s right to a fair trial when something
improper is said on the stand, I’m not sure why it’s inadequate to
protect that same right if something improper is said from the
gallery.

¶67 Again, the parties have not pointed to any past Utah case
that evaluated a mistrial motion that was based on something that
a juror heard or observed that happened in the gallery, much less
in the gallery while the trial was proceeding. But looking
elsewhere, I see several cases in which other courts used ordinary
mistrial rules (i.e., without applying a presumption of prejudice)
when something happened in the gallery. See, e.g., Kinnamon v.
Scott, 40 F.3d 731, 734 (5th Cir. 1994) (per curiam) (rejecting a claim
that there was a “denial of due process” where the victim’s
daughter “entered the courtroom” during a recess and “began
screaming that [the defendant] had killed her father,” with the
Fifth Circuit concluding that no “prejudicial error of

20220502-CA 29 2026 UT App 5
State v. Camara

constitutional magnitude” occurred); Bruce v. Duckworth, 659 F.2d
776, 781–82 (7th Cir. 1981) (declining to apply a presumption of
prejudice where “a juror informed the court that the jury ‘could
hear discussion going on in the audience,’” because “[a]ny
audience discussion that occurred was in the presence of the trial
judge and the parties in open court” and the “trial judge acted
swiftly to put an end to the problem”); State v. Stephenson, No. 22-
2082, 2024 WL 2317492, at *5–6 (Iowa Ct. App. May 22, 2024)
(affirming denial of a mistrial motion under ordinary mistrial
principles where someone “made comments from the courtroom
gallery,” which the defendant’s counsel asserted that the jury
heard); State v. Quinones, No. 98,877, 2009 WL 311812, at *3–8
(Kan. Ct. App. Feb. 6, 2009) (per curiam) (affirming denial of a
mistrial motion under ordinary mistrial principles where gallery
members made “threatening gestures” during a confidential
informant’s testimony that were observed by the bailiff and the
jury); State v. Triebwasser, No. 97,703, 2008 WL 2423368, at *2–5
(Kan. Ct. App. June 13, 2008) (per curiam) (affirming denial of a
mistrial motion under ordinary mistrial principles where
someone from the gallery commented, “That’s not true” during
the defendant’s testimony); State v. Allen, 276 So. 2d 868, 871–72
(La. 1973) (affirming denial of a mistrial motion under ordinary
mistrial principles after several jurors overheard “comments of [a]
corroborative nature from the spectators, the exact words of
which the reporter was unable to discern” (quotation simplified));
State v. Thompson, 378 So. 3d 784, 787–89 (La. Ct. App. 2023)
(affirming a denial of a mistrial under ordinary mistrial principles
where two spectators wore “shirts displaying a photo of the
victim and the phrase ‘Justice for [the victim]’”); State v. Holman,
570 S.W.3d 157, 160–62 (Mo. Ct. App. 2019) (affirming the denial
of a mistrial motion under ordinary mistrial principles “after [the
victim’s] daughter lunged toward [the defendant’s] counsel table
and said either, ‘[L]et me at him,’ or, ‘I’m going to get him’”); State
v. Dukes, No. 37324–6–II, 2009 WL 597277, at *5–7 (Wash. Ct. App.
Mar. 10, 2009) (affirming denial of a mistrial motion under
ordinary mistrial principles where someone from the gallery

20220502-CA 30 2026 UT App 5
State v. Camara

called out, “You don’t have to be scared” during a witness’s
testimony).

¶68 And this leads to my final point, which is that I’m
concerned about the potential implications of extending the
presumption of prejudice to this kind of scenario. Soto said that if
the presumption of prejudice applies, the State can only overcome
that presumption by “proving that the contact was harmless
beyond a reasonable doubt.” 2022 UT 26, ¶ 87. Soto referred to this
as a “heavy” burden. Id. ¶ 89. Soto suggested that the ordinary
processes of questioning the jurors and receiving “averments as
to their own lack of bias” would not be sufficient to overcome the
presumption, nor would “a curative instruction alone.” Id. ¶ 95.
Instead, Soto contemplated a much more involved process
involving testimony from the “third-party communicators as
testimonial witnesses whom the defendant can confront and
cross-examine” or instead one that requires the State to establish
“that its evidence of the defendant’s guilt was so strong that the
improper contacts made no difference in the jury’s verdict.” Id.
¶¶ 96, 98. Thus, in many cases (including potentially this one), the
question of whether the presumption of prejudice applies could
be a case-altering question.

¶69 By holding that this presumption can be triggered by
something that’s said in the gallery during the trial, I’m worried
that the presumption may now apply more often than Soto
intended or is necessary to protect a defendant’s right to a fair
trial. I’m worried that this opens the door for outright mischief or,
at least, unnecessary reversals and retrials based on occurrences
that weren’t nefarious by design. After all, trials are open to the
public, and given the high emotional stakes involved in many
trials, it’s not hard to imagine someone saying something that
they shouldn’t say. In my mind, if something improper is said
from the gallery during the trial, a court should be empowered to
do what it would ordinarily do when something improper is said
during the trial—instruct the jury to disregard the statement and
then evaluate any mistrial motion under ordinary principles.

20220502-CA 31 2026 UT App 5
State v. Camara

¶70 In short, unlike the separate opinion, I’m not persuaded
that when Soto referred to “outside” or even “unauthorized”
contacts or influences, it meant to include things that were said in
the gallery during the trial that jurors overheard. I would
accordingly hold that the initial predicate for Soto’s three-part test
did not exist in this case. Because of that, I would hold that the
presumption of prejudice does not apply. 19

19. The separate opinion surmises that the “logic” of my opinion
“would erase Soto—and all presumption of prejudice cases—from
the books.” With respect, this is hyperbole that’s also untrue. As
I’ve explained, the throughline that runs through Soto and most
of the past Utah cases in this area is that there was a contact
between jurors and someone else outside the courtroom. In two
cases, we also applied the presumption of prejudice to direct
communications that, though unclear from the opinions
themselves, may have occurred inside the courtroom. See State v.
Swain, 835 P.2d 1009, 1010–11 (Utah Ct. App. 1992); Logan City v.
Carlsen, 799 P.2d 224, 225–27 (Utah Ct. App. 1990). My approach
fully accepts those cases and applies them on their stated terms,
so I’m not quite sure how my approach can fairly be said to have
“erased” them.
The separate opinion’s insistence to the contrary is based
on its belief that it would be “somewhat arbitrary” to primarily
focus on whether a communication occurred outside the
courtroom. But as I’ve explained, I think that there is a reason for
drawing that line—namely, it’s reflective of a problem of proof. In
any event, the approach taken by the separate opinion has
arbitrariness problems of its own. For example, under the
separate opinion’s approach, if a witness blurts out, “She’s a liar!”
from the stand, the result might be an objection or even a mistrial
motion; but if the same witness is excused from the stand and is
then overheard muttering to herself, “She’s a liar,” as she walks
out of the courtroom, this would suddenly transform the matter
into an entirely different problem that now has constitutional
(continued…)

20220502-CA 32 2026 UT App 5
State v. Camara

B. Applying Ordinary Mistrial Principles, I Would Affirm the
District Court’s Denial of Camara’s Motion

¶71 “We review the denial of a motion for a mistrial under an
abuse of discretion standard, and we will not reverse the court’s
decision unless it is plainly wrong in that the incident so likely
influenced the jury that the defendant cannot be said to have had
a fair trial.” State v. Kufrin, 2024 UT App 86, ¶ 33, 551 P.3d 416
(quotation simplified). This is because a “mistrial is strong
medicine.” Whytock, 2020 UT App 107, ¶ 16; see also State v. Roberts,
2019 UT App 9, ¶ 15, 438 P.3d 885 (“Declaring a mistrial is a
particularly drastic remedy that is warranted only when no
reasonable alternatives exist.” (quotation simplified)). Appellate
courts accordingly “afford a high level of deference to a trial
court’s decision” on such a motion “because trial courts are in an
advantaged position to determine the impact of courtroom events
on the total proceedings.” Kufrin, 2024 UT App 86, ¶ 37 (quotation
simplified). “Additionally, our appellate courts have considered
the district court’s offers to cure any alleged harm and trial
counsel’s response in evaluating whether the court’s mistrial

implications. If drawing the line at the courtroom door is
arbitrary, drawing it at the foot of the witness box seems arbitrary
too.
Regardless, it seems to me that the lack of clarity on all this
may well be attributable to the fact that the past Utah cases in this
area were uniformly focused on the question of how prejudicial a
triggering contact really was, rather than the question presented
here of what it even means, for constitutional purposes, to have
an outside or unauthorized contact at all. Again, I regard the
differing opinions in this appeal to be good faith attempts to
answer a question that Soto and its progenitors were not called
upon to directly consider. Whether it be in this case or some future
case, it would be helpful for our supreme court to give further
guidance on this important question.

20220502-CA 33 2026 UT App 5
State v. Camara

motion decision was an abuse of discretion.” State v. Bermejo, 2020
UT App 142, ¶ 77, 476 P.3d 148.

¶72 On this record, I see no basis for concluding that the district
court abused its discretion. As indicated, after the court was
advised that some jurors had overheard some conversation from
the gallery, the court questioned each of the jurors separately
about what they had heard. During this questioning, Juror 7
informed the court that (s)he had overheard some indistinct
chatter, during which (s)he had more specifically heard either
Bree or the person “she was talking to” say, “[S]he’s lying” during
Wife’s testimony. But Juror 7 then confirmed that (s)he was not
“influenced” by the statement and that (s)he could “focus on what
was said . . . from the stand.” After Counsel moved for a mistrial
the next day, the court denied that motion based on its conclusion
that there had been no meaningful “articulation of prejudice.”
And as noted, the court had previously “instruct[ed] the jurors
that any comments that they may hear from the gallery are not
testimony, are not evidence, [and] are not to be considered as
such.”

¶73 In these circumstances, I think the district court did
everything right. The court found out who had heard what and
from whom and then received assurances that the juror in
question would not be influenced by what (s)he had heard. And
as noted, the court had already instructed jurors that statements
made by people not on the stand were not evidence. Moreover, to
the extent that mistrial motions turn on the likelihood of
prejudice, I also think it’s significant that, while it was clearly
improper for Bree or her attorney to have said what was said, the
extra information that Juror 7 heard was both brief and
unsurprising. According to Juror 7’s account—which we have no
reason to disbelieve—the only specific thing that (s)he heard was
that either Bree or the woman next to her said, “[S]he’s lying”
about something Wife said that was defense-favorable. But no one
would be surprised that Bree or a close companion would
disagree with defense-favorable testimony. In Kinnamon, the Fifth

20220502-CA 34 2026 UT App 5
State v. Camara

Circuit rejected a similar claim, in part, because the outburst in
question had “communicated nothing new to the jury.” 40 F.3d at
734. The same is true here too.

¶74 For these reasons, I’m not persuaded that the isolated
comment that Juror 7 overheard was so meaningful that, under
the ordinary mistrial rule, the court had no choice but to grant a
mistrial. I would therefore affirm the denial of the mistrial motion
on that basis.

III. Ineffective Assistance and Motion for a Directed Verdict

¶75 Camara next argues that he received ineffective assistance
because Counsel did not move for a directed verdict on several
counts.

¶76 To prevail, Camara must prove that (1) “[C]ounsel’s
performance was deficient” and (2) “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). Camara “must establish both prongs,” and “if either is
lacking, the claim fails and this court need not address the other.”
State v. Ames, 2024 UT App 30, ¶ 17, 546 P.3d 356 (quotation
simplified), cert. denied, 550 P.3d 993 (Utah 2024). To establish
deficient performance, Camara “must overcome the presumption
that, under the circumstances, the challenged action might be
considered sound trial strategy.” Strickland, 466 U.S. at 689
(quotation simplified). Counsel’s “decision not to pursue a futile
motion is almost always a sound trial strategy” and therefore
“does not constitute deficient performance.” State v. Torres, 2018
UT App 113, ¶ 16, 427 P.3d 550 (quotation simplified). To establish
prejudice, Camara “must show that there is a reasonable
probability that, but for [C]ounsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” Ames, 2024 UT App 30, ¶ 19 (quotation simplified).

¶77 The question here is whether Counsel should have filed a
motion for a directed verdict. Under rule 17 of the Utah Rules of

20220502-CA 35 2026 UT App 5
State v. Camara

Criminal Procedure, a motion for a directed verdict may be
granted when “the evidence is not legally sufficient to establish
the offense charged . . . or any lesser included offense.” Utah R.
Crim. P. 17(o). When reviewing such a motion, the district court
“is not free to weigh the evidence and thus invade the province of
the jury, whose prerogative it is to judge the facts.” Torres, 2018
UT App 113, ¶ 17 (quotation simplified). Instead, “viewing the
evidence in the light most favorable to the State, the court must
determine whether the State has produced believable evidence on
each element of the crime from which a jury, acting reasonably,
could convict the defendant.” Id. (quotation simplified). Thus, if
“there is any evidence, however slight or circumstantial, which
tends to show guilt of the crime charged, the court must submit
the case to the jury.” Id. (quotation simplified).

¶78 Here, Camara argues that Counsel should have filed a
motion for a directed verdict on Counts 5, 9, and 10 based on the
State’s alleged failure to prove Bree’s age for these counts, as well
as on Counts 9 and 10 because the State allegedly failed to prove
that he committed multiple acts. We disagree on all fronts.

A. Our Decision to Review this Issue

¶79 Before addressing the merits of Camara’s arguments, we
think it appropriate to first address why we are doing so. As
discussed more fully below in Part IV, we believe that our
resolution of the mistrial issue makes it unnecessary for us to
address several other issues raised by Camara on appeal. For the
same reasons, in our initial opinion, we also declined to address
this issue.

¶80 After we issued our initial opinion, however, Camara filed
a petition for rehearing. He pointed out that if an appellate court
reverses for insufficiency of the evidence—at least where the issue
is preserved—the Double Jeopardy Clause of the United States
Constitution prohibits the State from retrying the defendant on
the affected counts in a retrial. See, e.g., Burks v. United States, 437

20220502-CA 36 2026 UT App 5
State v. Camara

U.S. 1, 11 (1978). Camara then asserted that because this
ineffective assistance issue is based on an alleged insufficiency of
the evidence, the Double Jeopardy Clause would likewise bar
retrial if he prevails on it. He accordingly asked us to decide this
issue now.

¶81 Reviewing our caselaw, however, it’s unclear to us if
Camara’s procedural assertion is correct—at least on the state of
the current law. In State v. Smith, we concluded that the defendant
had received ineffective assistance because his attorney failed to
ask for a directed verdict after the State failed to put on proof of
something that we regarded as a necessary element of the charged
offense. 2003 UT App 52, ¶¶ 31–35, 65 P.3d 648, aff’d in part, rev’d
in part, 2005 UT 57, 122 P.3d 615. We then ordered a retrial on that
count, concluding that because this was raised as an ineffective
assistance claim, as opposed to a preserved insufficiency claim,
retrial was the appropriate remedy and double jeopardy did not
bar it. Id. ¶ 35 n.8. We observed that the “conclusion that [the
defendant’s] trial counsel was ineffective speaks to an error in the
trial process and not an error in judgment concerning the
quantum of evidence needed to convict and sentence,” and we
thus further observed that “the error giving rise to the reversal in
this case [was] trial error and remanding for a new trial [did] not
violate double jeopardy.” Id. (quotation simplified). On certiorari,
however, our supreme court concluded that the defendant was
not entitled to a directed verdict because, in its view, the missing
proof did not go to a required element. See State v. Smith, 2005 UT
57, ¶¶ 16–21, 122 P.3d 615. Because of this, the supreme court
reversed our conclusion that the defendant had received
ineffective assistance, and it therefore did not address our analysis
of the potential double jeopardy implications of a contrary ruling.
See id.

¶82 We’re not aware of another controlling case that has
definitively grappled with this question. But we do see Utah cases
that have gone both ways on this, albeit without any detailed
analysis. In some cases, we have reversed and ordered a retrial

20220502-CA 37 2026 UT App 5
State v. Camara

after concluding that an attorney rendered ineffective assistance
by failing to raise an insufficiency argument. See, e.g., Cedar City v.
McCraw, 2025 UT App 123, ¶ 14, 576 P.3d 1155, petition for cert.
filed, Sep. 11, 2025 (No. 20251082); State v. Nelson, 2024 UT App 75,
¶ 21, 550 P.3d 495, 497, cert. granted, 561 P.3d 688 (Utah 2024). In
other cases, however, we have remanded with instructions for the
district court to vacate the convictions at issue. See State v. Bell,
2025 UT App 169, ¶ 25, -- P.3d --; State v. Gonzales-Bejarano, 2018
UT App 60, ¶¶ 45–47, 427 P.3d 251.

¶83 In response to Camara’s petition for rehearing, the State
filed a memorandum stating that it was not opposed to us
reviewing the insufficiency-related ineffective assistance
arguments in this appeal. In light of the State’s non-opposition,
we think it appropriate to do so. And for the reasons set forth
below, we conclude that Camara did not receive ineffective
assistance because he was not entitled to a directed verdict on any
of the specified counts.

¶84 But in light of the authority just discussed, we regard it as
an open question as to what the remedy should be in a case in
which an appellate court concludes that the defendant received
ineffective assistance because his or her trial counsel did not file
what would have been a meritorious motion for a directed verdict
based on insufficiency of the evidence. This is an important issue
that could have significant implications in many cases. We
accordingly encourage future litigants in affected cases to fully
brief this issue so that it can be definitively resolved.

B. Proof of Age

¶85 In Count 5, the State charged Camara with rape of a child
under Utah Code section 76-5-402.1. To convict Camara on this
count, the State was required to prove that Camara had “sexual
intercourse with a child who [was] under the age of 14.” Utah

20220502-CA 38 2026 UT App 5
State v. Camara

Code § 76-5-402.1(1) (2013). 20 In Counts 9 and 10, the State charged
Camara with sodomy on a child under Utah Code section 76-5-
403.1. To convict Camara on these counts, the State was required
to prove that Camara “engage[d] in any sexual act upon or with a
child who [was] under the age of 14, involving the genitals or anus
of the actor or the child and the mouth or anus of either person.”
Id. § 76-5-403.1(1). 21

1. Counts 9 and 10 (Sodomy on a Child)

¶86 For contextual reasons that will become apparent shortly,
we’ll start with the sodomy on a child counts. In the elements
instructions, the jury was told that the incidents supporting these
counts were alleged to have occurred “on or between September
29, 2015[,] and July 10, 2016.” In closing argument, the prosecutor
told jurors that these counts were based on Camara “putting his
mouth on [Bree’s] vagina on two occasions during 8th grade.”

¶87 On appeal, Camara claims that “the State did not produce
evidence that any mouth-to-vagina touching occurred when
[Bree] was 13 years old.” In the briefs, both parties point to the
following exchange from Bree’s direct examination as being the
foundational hook for these counts:

Q. Now during the time—so we’ve talked about—
you talked a little bit about sexual intercourse.

20. We’ve cited the version of the statute that was in effect at the
time of the alleged conduct. The current version of this offense
contains a functionally similar element that requires proof that the
victim was “younger than 14 years old.” Utah Code § 76-5-
402.1(1)(a)(i).

21. As with rape of a child, the current version of this offense
requires proof that the victim was “younger than 14 years old.”
Utah Code § 76-5-403.1(2)(a)(ii).

20220502-CA 39 2026 UT App 5
State v. Camara

A. Yeah.

Q. Was there any other sexual contact between you
and [Camara] during this time?

A. Yeah. He would put his penis in my mouth, he
would put my vagina in his mouth, and he also
inserted his penis into my anal cavity. I don’t know
what to call that.

(Emphasis added.)

¶88 The question thus turns on whether the first emphasized
phrase—“during this time”—could reasonably be interpreted as
referring to a “time” in which Bree was 13 years old. Contrary to
Camara’s assertions, we believe there was sufficient evidence
from which the jury could think that it did.

¶89 First, on its face, the reference to “this time” was clearly
linked to the prior question, wherein the prosecutor had referred
to prior testimony from Bree about “the time” in which she and
Camara had “sexual intercourse.” At this point in the trial, the
only sexual intercourse that Bree had testified about was the
sexual intercourse that had allegedly occurred on September 29,
2015, on the Alpine Loop and then at Camara’s house. Because
Bree’s birthday was in July 2002, these incidents would have
occurred when she was 13 years old. For this reason alone, the
question at issue (“Was there any other sexual contact between
you and [Camara] during this time?”) and Bree’s affirmative
answer to it could reasonably be interpreted as referring to an
incident that occurred in the same period—and, thus, while Bree
was 13 years old.

¶90 Second, this interpretation is also consistent with how the
broader questioning at trial had proceeded. As the State points
out, the prosecutor at trial generally asked Bree questions in a
“chronological[]” manner. Indeed, the prosecutor “used a large
calendar as a demonstrative exhibit and marked it with important

20220502-CA 40 2026 UT App 5
State v. Camara

dates as [Bree] testified.” Of note, at the time of the exchange we
just quoted (wherein Bree testified about the mouth-to-vagina
contact), the prosecutor had been asking Bree questions about
things that happened during the school year in which she was in
eighth grade and 13 years old, not the school year in which she
was in ninth grade and 14 years old.22 For example, in exchanges
that occurred before this one, Bree was asked about the incidents
that allegedly occurred at Kyhv Peak on September 22, 2015, and
on the Alpine Loop and at Camara’s house on September 29, 2015.
Then, in exchanges that occurred after this one, Bree was asked
about an incident in which Camara allegedly had anal sex with
Bree. As part of her testimony about that incident, Bree said that
after the anal sex happened, she sat in her United States history
class wondering if “anyone else [was] . . . going through this” “at
13” years old. (Emphasis added.)

¶91 By contrast, Bree was not asked about incidents that
occurred in her ninth-grade year until later. And when the
prosecutor shifted to that time period, she began by asking Bree
where she went to school for ninth grade, and the prosecutor then
marked the calendar exhibit for “the fall of 2016” accordingly.
This occurred over ten pages of transcript after the exchange in
which Bree talked about the mouth-to-vagina contact. In light of
this, it seems that when Bree testified about the mouth-to-vagina
contact, she did so in the context of questioning that was anchored
to her eighth-grade year—and, thus, while she was 13 years old.

¶92 Pushing back, Camara points out that in between Bree’s
prior testimony about the Alpine Loop encounter and the
question about “any other sexual contact” that occurred “during
this time,” there was an intervening discussion about the layout
of the Camara house that spanned several pages of text. In light
of this digression, Camara argues that the discussion about the

22. Because Bree had a summer birthday, it was unquestioned that
she was 13 years old during the entirety of her eighth-grade year
and 14 years old during the entirety of her ninth-grade year.

20220502-CA 41 2026 UT App 5
State v. Camara

house essentially broke the chronological sequencing, such that
the jury would have no basis to reasonably infer that the
prosecutor was asking about the same time period.

¶93 But this is at odds with the question itself. As just
discussed, the question at issue expressly referenced Bree’s
testimony about prior sexual intercourse—and at this point in the
trial, this could only have been about the alleged September 29,
2015 sexual intercourse. So, even with the intervening discussion
about the house, this question was linked to that same period.

¶94 Moreover, even on its own terms, the intervening
discussion about the layout of the house was grounded in the
same general period of time. After Bree testified about the events
that allegedly occurred on the Alpine Loop and at Camara’s house
on September 29, 2015, the prosecutor asked her if, at the time of
that encounter, she had her “own bedroom” at Camara’s house.
Bree responded that she did not. The prosecutor then asked
whether Bree got her “own bedroom” “[a]t some point.” Bree
responded that “for Christmas,” Camara cleared out a storage
room and created a separate room for her. On appeal, Camara
agrees that this referred to something that occurred “in December
2015,” which was when Bree was 13 years old. At that point, the
prosecutor and Bree then spent several pages of transcript
discussing the layout of the Camara house and how that bedroom
fit into the floor plan. When that discussion concluded, the
prosecutor shifted back to a discussion of the sexual encounters
described above.

¶95 Thus, contrary to Camara’s contention on appeal, the
discussion about the house didn’t shift the chronology to some
other year. At most, it arguably shifted the discussion to the
winter of 2015, as opposed to the fall of 2015. But in both the fall
and winter of that year, Bree was still 13 years old. And
regardless, when the prosecutor returned to the subject of sexual
conduct, the prosecutor expressly re-anchored the discussion to
Bree’s earlier testimony about sexual intercourse—which, again,

20220502-CA 42 2026 UT App 5
State v. Camara

could only have referred at that point to testimony about
encounters that occurred in the fall of 2015.

¶96 Thus, viewing the evidence in the light most favorable to
the State’s case, we agree that there was at least some “evidence,
however slight or circumstantial, which tend[ed] to show guilt of
the crime charged.” Torres, 2018 UT App 113, ¶ 17 (quotation
simplified). As a result, a motion for a directed verdict on these
counts would have been futile, and Camara therefore did not
receive ineffective assistance when Counsel did not file such a
motion.

2. Count 5 (Rape of a Child)

¶97 Camara next claims that Counsel provided ineffective
assistance by failing to move for a directed verdict on Count 5,
again claiming that the “State put on no evidence of [Bree’s] age”
relating to that count. We disagree.

¶98 The elements instruction for Count 5 informed jurors that
Camara was alleged to have committed rape of a child “on or
between September 29, 2015, and July 10, 2016.” In closing
argument, the prosecutor told jurors that Count 5 was based on
the encounter in which Camara “insert[ed] his penis into [Bree’s]
vagina during the night in 8th grade at Centennial Junior High
when [Bree] came out of her room to get water” and Camara then
“took her back into her bedroom and raped her.” On appeal,
Camara alleges that there was no evidence of Bree’s age because,
in the relevant portion of her testimony, Bree “did not say how
old she was or when this incident occurred.”

¶99 The key exchange from Bree’s direct examination was as
follows:

Q. Okay. So how many times while you’re going to
Centennial Middle School in 9th grade, how many
times do you think he had sexual intercourse with
you?

20220502-CA 43 2026 UT App 5
State v. Camara

A. Probably a hundred or more times.

Q. Most of those times he would pull out and then
finish in your mouth?

A. Yeah.

Q. The—I want you to think about the time where—
other than the time we’ve talked about up the
canyon on September 29th of 2015 and then back at
the house, I want you to tell us about another time
that you remember the most where he was having
sexual intercourse with you.

A. I remember there was one time I had woken up
in the middle of the night, and I had come out to the
living room so I could grab water, and I came out to
the living room to ask if it was like okay if I got
water, and when I walked out, he was touching his
penis—or I think that he was. I think I caught him
touching his penis, and when he saw that I was
awake, he took me back into my room and—this is
when—the back room, when I had had one—and he
had inserted his penis into my vagina and like had
sex with me.

¶100 Viewing the record as a whole, we think there are two
reasons why the jury could conclude that the incident Bree
described from the middle of the night occurred when she was 13
years old.

¶101 The first is the same pattern of questioning that we just
discussed. This exchange happened shortly after the exchange
that supported the sodomy on a child counts (Counts 9 and 10).
As noted, the prosecutor at that point was asking questions about
things that happened in Bree’s eighth grade year, which was
when she was 13 years old. Bree discussed the anal sex incident
we described above (the one in which, after it occurred, she sat in

20220502-CA 44 2026 UT App 5
State v. Camara

class and wondered if “anyone else [was] . . . going through this”
“at 13” years old) after she described the middle-of-the-night
encounter at issue in Count 5. And when the prosecutor shifted to
ninth grade and marked the calendar accordingly, that moment
occurred ten transcript pages after the exchange about the sexual
intercourse that occurred in the middle of the night.

¶102 When evaluating the sufficiency of the evidence, context
matters. See State v. Gardner, 2007 UT 70, ¶ 24, 167 P.3d 1074. And
we allow and even instruct jurors to use some measure of
common sense when evaluating testimony. See State v. Ashcraft,
2015 UT 5, ¶ 37, 349 P.3d 664; Herzog v. Vail Resorts, Inc., 2025 UT
App 69, ¶ 55, 572 P.3d 402. When viewed in context, the jury could
have reasonably understood that this testimony was about events
that occurred in Bree’s eighth-grade year and, thus, when she was
13.

¶103 Second, the language of this exchange supports this
conclusion as well. As an initial matter, we note that the first
question in this exchange contained an internal inaccuracy. The
prosecutor asked Bree “how many times” she “had sexual
intercourse” with Camara while she was “going to Centennial
Middle School in 9th grade.” But as noted, Bree went to
Centennial Middle School for the eighth grade and Timpview
High School for ninth grade. Bree didn’t pick up on the
discrepancy from the stand, instead affirmatively responding that
she had sexual intercourse with Camara “a hundred or more
times” that year.

¶104 Again, Camara now argues that Counsel should have filed
a directed verdict motion on the basis of a lack of evidence about
Bree’s age. If Counsel had filed such a motion, however, the
district court would have been required to view the evidence “in
the light most favorable to the State,” Torres, 2018 UT App 113,
¶ 17, and “the existence of contradictory evidence or of conflicting
inferences” would not warrant deciding the question in the
defense’s favor, State v. Hosman, 2021 UT App 103, ¶ 31, 496 P.3d

20220502-CA 45 2026 UT App 5
State v. Camara

1162 (quotation simplified). Thus, to the extent that this question-
and-answer contained an internal conflict that could cut either
way in terms of Bree’s age, that conflict would go the State’s way,
not Camara’s way, because the jury could have chosen to resolve
that conflict in the State’s direction. And such a conclusion would
have been reasonable given that the questioning at that point had
been about things that happened during Bree’s eighth-grade year
and that the prosecutor had not yet asked questions about things
that happened in ninth grade or marked the calendar accordingly.

¶105 This leads to the latter part of the exchange that we’ve just
quoted, which is where Bree described the incident that occurred
in the middle of the night. On appeal, Camara suggests that this
answer was not linked to the earlier question about events that
occurred while Bree was “going to Centennial Middle School in
9th grade” or, of note, its time period. In Camara’s view, the
intervening question essentially broke the sequence, as did the
prosecutor’s request for Bree to “tell us about another time” when
the two had sexual intercourse.

¶106 But again, if this had been presented in a directed verdict
motion, the court would have had to view the testimony in the
light most favorable to the State. So viewed, we agree with the
State that these questions were at least plausibly linked together
in something of a sequence. After the prosecutor initially asked
Bree “how many times” she had sexual intercourse with Camara
that year, the prosecutor’s next question asked for more specific
information about “those times.” (Emphasis added.) Then, in the
next question, the prosecutor asked Bree to “tell us about another
time” that she “remember[ed] the most.” (Emphasis added.) In
context, the words “those times” and “another time” seemed to
link these three questions together in something of a sequence,
with the questions progressing from general to specific. It was
Bree’s answer to the final question in this sequence that described
the incident that occurred in the middle of the night. We see no
clear indication that, somewhere in this sequence, either the
prosecutor or Bree shifted to a different time period. And again,

20220502-CA 46 2026 UT App 5
State v. Camara

this conclusion is reinforced by the fact that the prosecutor was at
that point asking questions about things that happened in eighth
grade.

¶107 In short, and with respect to both of Camara’s age-related
claims, given the manner in which the evidence had been
chronologically presented, the fact that Bree’s testimony had been
anchored to a time period in which Bree was 13 years old, and the
fact that the exchanges in question contained certain contextual
cues that also grounded these answers to that same period, we
believe that there was at least some evidence from which jurors
could conclude that Bree was testifying about things that
happened when she was 13 years old. We accordingly conclude
that a motion for a directed verdict on these bases would have
failed, and Counsel therefore did not perform deficiently by not
making it. 23

C. Multiple Acts on Counts 9 and 10 (Sodomy on a Child)

¶108 Camara next argues that Counsel should have moved for a
directed verdict on Counts 9 and 10 based on a lack of proof that
there were “multiple acts” as needed “to sustain a conviction on
two charges.” We disagree.

¶109 As noted, Bree testified that Camara “would put [her]
vagina in his mouth” during this period. (Emphasis added.) In
this sense, the word “would” is often used to “express custom or
habitual action,” and the Merriam-Webster Dictionary uses as an
illustrative example the phrase “we would meet often for lunch,”

23. Camara also claims that Counsel was ineffective for failing to
object to certain statements the prosecutor made in closing
argument that suggested there was evidence presented of Bree’s
age relating to Counts 5, 9, and 10. Because we conclude that there
was sufficient evidence to show Bree’s age relating to these
counts, we reject this argument.

20220502-CA 47 2026 UT App 5
State v. Camara

which plainly connotes multiple events. 24 Other sources agree.
Strunk and White, for example, state that the word “would” is
“[c]ommonly used to express habitual or repeated action.”
William Strunk, Jr. & E.B. White, The Elements of Style 64 (4th ed.
2000). And another dictionary explains that “would” can be “used
to suggest that in the past something happened often or always.” 25

¶110 Indeed, Bree used the habitual “would” in other places in
her testimony. Within this same answer, for example, Bree said
that Camara “would put his penis in [her] mouth.” When she was
asked a few moments later to clarify how many times that
occurred, she said it was “more than . . . 15, but probably less than
. . . 50.” Counsel also used the habitual “would” when questioning
Bree to express something that had happened more than once. At
one point, for example, Counsel asked, “So most of the time you
guys got along, but there were occasions where you guys would
have little arguments like that?”

¶111 Again, Camara has raised this claim through the prism of
the ineffective assistance of counsel doctrine, which poses a
hurdle for his claim, and Camara faults Counsel for not moving
for a directed verdict, which poses another hurdle of its own.
Given Bree’s statement that Camara “would” put his mouth on
her vagina, we think that Counsel could have reasonably
concluded that a motion on this basis would have failed. We
therefore reject this claim for lack of deficient performance.

IV. Remaining Issues and Proceedings on Remand

¶112 In addition to the above issues, Camara has argued that he
received ineffective assistance because Counsel did not request a

24. Would, Merriam-Webster, https://www.merriam-webster.com
/dictionary/would [https://perma.cc/7EXN-XHC6] (emphasis in
original).

25. Would, Cambridge Dictionary, https://dictionary.cambridge.org
/us/dictionary/english/would [https://perma.cc/NKS9-6CRC].

20220502-CA 48 2026 UT App 5
State v. Camara

unanimity instruction on two of the counts relating to sodomy on
a child. In the rule 23B motion that Camara filed
contemporaneously with his brief, Camara also asked for a
remand on whether Counsel provided ineffective assistance by
not introducing several additional types of evidence. Because a
majority of this court has reversed the denial of the motion for a
mistrial and has remanded for further proceedings on that issue,
a decision from this court on these issues may prove unnecessary.
This is so because, if the court ultimately declares a mistrial,
Camara would be entitled to a new trial. Given this dynamic, we
exercise our discretion to not address these additional issues
further.

¶113 In doing so, we acknowledge that, after oral argument and
while our deliberations on the above issues were ongoing, we
concluded that Camara had met his burden of showing that he
was entitled to a remand to create a record on some of the
ineffective assistance claims. We acknowledge the work done by
the parties and the court in the remand, but we decline to rule on
those issues unless warranted by future developments in the case.

¶114 In terms of the remand that we are now ordering relating
to the mistrial issue, the district court should follow the directives
set forth more fully in the separate opinion, which, again, is the
controlling opinion as to that issue. As explained more fully there,
the district court on remand should (1) apply Soto and
(2) determine whether the presumption of prejudice has been
rebutted. If the court concludes that the State has rebutted the
presumption, the case should be returned to this court for further
proceedings on the remaining issues.

CONCLUSION

¶115 We first conclude that the district court did not abuse its
discretion when it sanctioned the State for improperly obtaining
files from Expert’s hard drive, rather than dismissing the case
entirely. We next conclude that Camara was entitled to a

20220502-CA 49 2026 UT App 5
State v. Camara

rebuttable presumption of prejudice relating to outside contact
with Juror 7, and we remand this case to the district court to
decide whether that presumption has been rebutted. Finally, we
conclude that Camara did not receive ineffective assistance when
his trial counsel did not file a motion for a directed verdict on
several of the counts.

HARRIS, Judge (concurring in part and authoring the Opinion of
the Court as to Part II, in which Luthy, J., joined):

¶116 Along with Judge Luthy, I join in paragraphs 1–43 of the
lead opinion, including its entire factual recitation and Part I of its
legal analysis. We also join in Part III of its legal analysis and Part
IV, which contains some of the court’s instructions on remand. We
part ways with the lead opinion, however, with regard to Part II
of its legal analysis. Unlike the lead opinion, we are persuaded
that the presumption of prejudice discussed in State v. Soto, 2022
UT 26, 513 P.3d 684, applies to the mistrial motion Camara filed
after learning that three jurors had overheard comments from the
gallery.26 And because the district court did not have an

26. We note that State v. Soto, 2022 UT 26, 513 P.3d 684, was issued
after Camara’s trial. We also note, however, that Soto explained
that it was not establishing a new rule but was instead merely
synthesizing principles set forth in previous cases. See id. ¶ 15 (“A
long line of Utah cases dating back to statehood recognizes that
improper contacts between juries and third parties may trigger a
rebuttable presumption of prejudice, depending on who made the
improper contact, what was said, and the circumstances of the
contact.”); see also id. ¶ 39 n.9 (“[T]he balancing test comes not
from our imagination, but from our case law.”). In his opening
brief, Camara invoked Soto, asserted that it was controlling, and
argued that he was entitled to reversal under it. In its responsive
brief, the State did not argue that Soto was inapplicable because it
was issued after Camara’s trial; rather, accepting Soto as
(continued…)

20220502-CA 50 2026 UT App 5
State v. Camara

opportunity to assess whether this presumption had been
overcome, we vacate the order denying the motion for mistrial
and remand the case to the district court to make that
determination in the first instance.

I. Under Soto, What Happened Here Constitutes Unauthorized
Communication Likely to Influence the Jury’s Judgment

¶117 The main point of disagreement between this opinion and
the lead opinion concerns whether the comments made by Bree or
her attorney in the gallery during trial—and overheard by one
non-alternate juror 27—constitute the sort of “unauthorized

controlling authority for purposes of this appeal, the State simply
argued that Camara was not entitled to reversal under the test set
forth therein. We follow the parties’ lead in assuming that Soto
applies here and thus analyze the parties’ arguments under its
principles. We acknowledge, like Judge Tenney, see supra ¶ 45
n.12, that in doing so, our interpretation of Soto is not exactly that
advanced by either of the parties, but we echo the principle that it
is our obligation “to get the law right” as we see it, In re B.T.B.,
2020 UT 60, ¶ 40, 472 P.3d 827.

27. The comments were apparently at least partially overheard by
Jurors 7, 9, and 10. But Jurors 9 and 10 were alternates and were
each excused before deliberations began. And at the beginning of
the trial, the court instructed jurors to not discuss the case until
they had “received all the evidence and all the instructions of law
that [would] pertain to [their] deliberations.” Camara has not
argued that there is any reason to think that the jurors did not
comply with that instruction. While the comments heard by
Jurors 9 and 10 would likely qualify as “improper contacts” for
purposes of the Soto analysis, we agree with the State that, on the
basis of this record and the arguments presented to us, there’s no
basis for concluding that, even with the presumption of prejudice,
Camara was prejudiced in any way through the statements
(continued…)

20220502-CA 51 2026 UT App 5
State v. Camara

communications likely to influence the jury’s judgment” that
trigger the presumption of prejudice discussed in Soto. Id. ¶ 18.
We think they did because—while the comments were made
inside the courtroom—they were made by a person who was, at
the time, a third party to the constitutionally protected jury
process and they were not observed by the district court.

¶118 As noted in the lead opinion’s factual recitation, supra
¶¶ 24, 26, Wife testified on Camara’s behalf and, among other
things, she offered testimony that directly supported Camara’s
alibi defense for one of the charges. At some point during Wife’s
testimony, Juror 7 overheard either Bree or the woman sitting next
to her say, “[S]he’s lying.” Because Bree had already testified,
Juror 7 of course knew who Bree was, and given the setting and
context, Juror 7 would have had reason to assume that the woman
sitting next to Bree was connected to Bree in some meaningful
way. 28 Thus, the situation presented to us is that, during the trial,
one of the jurors overheard either the alleged victim or someone
associated with her make what was essentially an unsworn
factual refutation of testimony being offered from a defense
witness. In our view, this must qualify as an “outside influence”
or “unauthorized contact” for purposes of Soto, because this
would have exposed Juror 7 to evidentiary “influences other than
that which are produced by the legal evidence and the law
governing the case.” Id. ¶¶ 18, 30, 40 (quotation simplified).

¶119 Pushing back, the State points out that in past Utah
decisions, the presumption of prejudice has been applied only to

overheard by these jurors. See, e.g., State v. Miller, 674 P.2d 130, 131
(Utah 1983) (explaining that since “the alternate juror never even
entered jury deliberations,” that juror “had no bearing on the
jury’s verdict”). We therefore limit our discussion and analysis to
the things that Juror 7 overheard.

28. Although Juror 7 didn’t know this at the time, the woman in
question was Bree’s attorney.

20220502-CA 52 2026 UT App 5
State v. Camara

“cases involving direct extra-judicial communication between
jurors and witnesses.” The State then asserts that what occurred
here was not a direct contact between an outsider and a juror;
instead, it characterizes this event as merely an overheard remark
that was not intended to reach any juror’s ears. It is certainly true
that the comments here were not directed at jurors and were likely
not intended to be heard by them, but contact with jurors does not
have to be intentional to be unauthorized; even overheard
conversations can constitute unauthorized juror contact.

¶120 Indeed, we suspect that the primary reason that Soto only
discussed cases involving direct or intentional contact with jurors
is that this is what happened in Soto itself. There, “a uniformed
highway patrolman” and “a court IT technician” had made
comments directly to jurors in “a nonpublic, court-employee
elevator.” Id. ¶ 6. Since this was the scenario at issue, it makes
sense that the court’s legal analysis would focus in on language
from past cases that had also involved direct “contacts” and
“communications” between outsiders and jurors. Id. ¶¶ 20, 25.

¶121 But Soto never said that the presumption of prejudice
applies only to intentional or targeted communications between
outsiders and jurors (as opposed to unintentional or non-targeted
communications). To the contrary, in one key passage, Soto
indicated that the opposite is true. While discussing the kinds of
circumstances that constitute prohibited “jury ‘conduct’” that
could support a presumption of prejudice, the court stated that
such conduct “is not limited to affirmative and intentional actions
taken by a juror” but “also includes inadvertent conduct and
communications directed at a juror.” 29 Id. ¶ 33 n.7. By referencing

29. The lead opinion attempts to dismiss this language from Soto
by reading it to require that the conduct be “both ‘inadvertent’ and
‘directed at a juror.’” See supra ¶ 53 n.16. But this misreads Soto’s
footnote, which simply said that improper jury conduct “includes”
both “inadvertent conduct and communications directed at a
(continued…)

20220502-CA 53 2026 UT App 5
State v. Camara

“inadvertent conduct,” Soto contemplated that the presumption
of prejudice can be triggered even where the speaker did not
intend to make contact with a juror. Id. And the clearest way that
an outsider could unintentionally communicate with a juror
would be by having a conversation in close proximity to the juror,
thereby allowing the juror to overhear it.

¶122 Even beyond this guidance from Soto, two other concepts
persuade us that the better reading of Soto is that unintentional
communications can trigger the presumption of prejudice.

¶123 First, Soto stated that courts should not “obsess[] over the
form of the intrusion” and instead directed courts to focus “on the
principle guarding against it—safeguarding in every possible way
the purity of the stream of justice; to prevent it from in any
manner being polluted by influences other than that which are
produced by the legal evidence and the law governing the case.”
Id. ¶ 30 (emphasis added) (quotation simplified). In Soto’s view,
the “consistent thread that connects” the past decisions in this
area is “the concern for jury purity, alongside the threat to that
purity caused when an outsider invades the jury’s privacy.” Id.
Whether intentional or not, what happened here was that an
outsider provided unauthorized factual information (i.e., “she’s
lying”) to a juror during the trial. This violates the “jury purity”
principle that, in Soto’s view, underlies court decisions in this area.

¶124 Second, while Soto relied on a number of past Utah
decisions, it also drew from cases from other jurisdictions. See id.
¶¶ 28–30. And we note that both the United States Supreme Court
and the United States Court of Appeals for the Tenth Circuit have
held that a presumption of prejudice can be triggered by indirect
non-innocuous contacts and communications with jurors. See, e.g.,

juror,” not that it requires both “inadvertent conduct and
communications directed at a juror.” 2022 UT 26, ¶ 33 n.7
(emphasis added). Inadvertent conduct can qualify, and so can
direct communications.

20220502-CA 54 2026 UT App 5
State v. Camara

Remmer v. United States, 347 U.S. 227, 229 (1954) (“In a criminal
case, any private communication, contact, or tampering directly
or indirectly, with a juror during a trial about the matter pending
before the jury is, for obvious reasons, deemed presumptively
prejudicial.” (emphasis added)); accord Stouffer v. Duckworth, 825
F.3d 1167, 1178 (10th Cir. 2016); Stouffer v. Trammell, 738 F.3d 1205,
1214 n.5 (10th Cir. 2013). And courts following these principles
have held that a presumption of prejudice can arise when jurors
overhear comments, even if the comments weren’t aimed at them.
See, e.g., Neal v. John, 110 F.R.D. 187, 188–89 (D.V.I. 1986) (holding
that “the presumption of prejudice must arise” where a juror
“overheard a conversation in which a defense witness stated that
he had been paid for his testimony,” as well as another comment
that “a defense witness had perjured herself”).

¶125 For these reasons, we are unpersuaded by the State’s
attempt to distinguish Soto on the basis that the conversation was
indirect and not directly intended for jurors’ ears.

¶126 Aside from the State’s assertions, the lead opinion
contends that Soto’s presumption of prejudice cannot apply here,
as a threshold matter, because the comments made occurred
inside the courtroom while the trial was going on. We read Soto
differently. To the extent that Soto has a threshold requirement,
the question raised by that requirement is not whether the contact
occurred physically inside or outside of the courtroom but,
instead, whether the contact was unauthorized. See 2022 UT 26,
¶ 18 (outlining the presumption of prejudice test as the “remedy
for unauthorized communications likely to influence the jury’s
judgment” (emphasis added)); id. ¶ 40 (explaining that “any
unauthorized contact during a trial between witnesses, attorneys or
court personnel and jurors that goes beyond a mere incidental,
unintended, and brief contact will trigger the presumption of
prejudice” (emphasis added) (quotation simplified)). And in our
view, what differentiates authorized contact from unauthorized
contact is that authorized contact occurs on the record in the run

20220502-CA 55 2026 UT App 5
State v. Camara

of trial. 30 Unauthorized contact, by contrast, occurs off the record.
Drawing this “threshold” line here—at off-the-record versus on-
the-record contact, instead of at inside versus outside the
courtroom—makes a lot more sense, for two reasons.

¶127 First, this is where our rules of civil procedure have chosen
to draw the line: “There shall be no off-the-record communication
between jurors and lawyers, parties, witnesses or persons acting
on their behalf.” Utah R. Civ. P. 47(l) (emphasis added). We
consider it notable that rule 47(l) was discussed by the majority
and dissenting opinions in Soto, and all five justices agreed that
off-the-record contact with jurors that goes beyond mere
incidental communications poses a threat to juror impartiality
and implicates the presumption of prejudice. Compare Soto, 2022
UT 26, ¶¶ 58–60, with id. ¶¶ 113–25 (Petersen, J., dissenting).

¶128 The dissenting opinion in Soto stated that it would not have
“adopt[ed] the ‘balancing test’ established by the majority” for
determining when the presumption of prejudice should attach, in
part because the dissent believed that Utah’s “precedent and
procedural rules have already established principles for
identifying impermissible off-the-record communication with

30. In this context, by “on the record” contact we mean
communications by the attorneys, sworn witnesses on the stand,
the court, and court personnel during the official “jury process,”
see Soto, 2022 UT 26, ¶¶ 18, 27, which is usually designated by the
court announcing that the proceedings are on the record. Under
this definition, a communication made during the official jury
process is nonetheless “off the record,” for present purposes, if it
is made by someone other than the court, court personnel, the
attorneys, or a sworn witness on the stand. Additionally, whether
a jury contact is “on the record” does not turn on whether it is
sufficiently discernable for a court reporter to later include it in a
transcript of the proceedings. It turns on whether the contact was
made during the official jury process by one who is permitted to
communicate with the jury during that process.

20220502-CA 56 2026 UT App 5
State v. Camara

jurors.” Id. ¶ 109 (Petersen, J., dissenting). But even the dissent
seemed to accept the principle that the type of communications
that might trigger the presumption were off-the-record
communications. Indeed, the dissent stated as follows: “A brief
and incidental ‘excuse me’ in the hallway, or a ‘gesundheit’ after
a sneeze, would not offend this rule. But we do not want jurors
and witnesses, the parties, or their lawyers to say much more than
that to one another off the record.” Id. ¶ 113 (emphasis added).

¶129 In response, the majority in Soto agreed that our procedural
rules provide “useful guidelines for juror behavior,” but it
concluded that those rules do not “prescribe the remedy for their
violation.” Id. ¶ 58 (majority opinion). Specifically, the majority
explained that “rule 47(l)’s prohibition on all ‘off-the-record
communication between jurors and lawyers, parties, witnesses or
persons acting on their behalf’ does not tell us when we should
presume prejudice for its violation.” Id. ¶ 60. To answer that
question, the court stated that prejudice will be presumed “when
such a communication goes beyond a mere incidental, unintended,
and brief contact.” Id. (emphasis added) (quotation simplified).
Thus, while the majority did not apply rule 47(l) in formulating
its three-part test regarding “when a court must presume
prejudice,” id. ¶ 59, the majority did appear to acknowledge the
underlying principle that the communications to which its newly
articulated balancing test would apply would be off-the-record
communications between jurors and others.

¶130 To be sure, the specific “threshold” issue identified by the
lead opinion was not explicitly articulated or discussed in Soto,
and the Soto opinions address rule 47(l) only in an effort to
establish the sufficiency of their respective analytical frameworks.
But both opinions in Soto seem unified in acknowledging the
relevance of rule 47(l)’s prohibition of off-the-record
communications between jurors and trial participants, and both
agree that juror impartiality is drawn into question when jurors
are exposed to such off-the-record communications. See id. ¶ 60;
id. ¶ 113 (Petersen, J., dissenting).

20220502-CA 57 2026 UT App 5
State v. Camara

¶131 Second, statements made on the record are subject to a
litany of procedural safeguards that are not applicable to
statements made off the record. Before a witness can offer
testimony to the jury, the proponent party must first disclose the
witness to the other side. See Utah R. Crim. P. 16(a)(5)(A); Utah R.
Civ. P. 26(a)(1)(A). At trial, when a witness takes the stand and
communicates with the jury on the record, that testimony must be
under oath, Utah R. Evid. 603, is subject to cross-examination, and
is subject to our evidentiary rules, such as rule 403’s prohibition
on unduly prejudicial evidence, id. R. 403, and rule 802’s bar
against hearsay statements, id. R. 802. When a witness provides
improper testimony, opposing counsel may object and develop
the basis for the objection on the record, id. R. 103, and the court
may choose to remedy the error by striking the testimony and
providing a curative instruction to the jury, id. R. 103, 105. 31

¶132 These safeguards are meant to control the stream of
evidence the jury receives and to provide real-time recourse to the
party adversely affected by the introduction of inadmissible
evidence. See, e.g., Soto, 2022 UT 26, ¶ 27 (explaining that the right
to an impartial jury under the Sixth Amendment requires that the
“evidence developed against a defendant shall come from the
witness stand in a public courtroom where there is full judicial
protection of the defendant’s right of confrontation, of cross-
examination, and of counsel” (emphasis added) (quotation
simplified)); id. ¶ 30 (explaining that a key principle underlying
other jurisdictions’ approaches to improper jury contacts is the
need to safeguard the jury from “being polluted by influences
other than th[ose] which are produced by the legal evidence and
the law governing the case” (quotation simplified)). By contrast,

31. At one point in its analysis, the lead opinion makes it sound as
though procedural safeguards would also apply to statements
that occur inside the courtroom but off the record. See supra ¶ 50.
That’s just simply not the case—statements from the gallery are
not subject to disclosure rules, evidentiary rules, or cross-
examination, among other things.

20220502-CA 58 2026 UT App 5
State v. Camara

statements made off the record are not subject to any of these
specific safeguards.

¶133 The lead opinion questions why this distinction matters
and, specifically, why a presumption of prejudice should be
applied to an errant comment from the gallery when witnesses
often provide improper or inadmissible testimony from the stand.
See supra ¶¶ 64–66. The lead opinion points out that if a witness
offers improper testimony that “was bad enough,” the “adversely
affected party can move for a mistrial,” where the ordinary
standard for a mistrial applies, not the three-part test set forth in
Soto. Supra ¶ 65. Given this reality, the lead opinion posits that
“[i]f the ordinary mistrial standard is sufficient to protect a
defendant’s right to a fair trial when something improper is said
on the stand,” the same standard should be adequate “to protect
that same right if something improper is said from the gallery.”
Supra ¶ 66.

¶134 But this logic would erase Soto—and all presumption of
prejudice cases—from the books. If the ordinary mistrial standard
is sufficient to protect a defendant’s right to a fair trial when
something improper is said off the record but in the courtroom—
say, in the gallery—why wouldn’t it also be adequate to protect
that same right when something improper is said just outside the
courtroom in the hallway? Or across the street at a restaurant? Or
at the accident site or scene of the crime? The lead opinion’s
argument here, taken to its logical conclusion, thus appears to
take issue with the notion that we should ever apply a
presumption of prejudice in jury-contact cases. And that
argument, by definition, proves too much, because we are bound
to follow Soto and its acceptance of the idea that “unauthorized
contact during a trial between witnesses, attorneys or court
personnel and jurors that goes beyond a mere incidental,
unintended, and brief contact will trigger the presumption of
prejudice.” See 2022 UT 26, ¶ 40 (quotation simplified).

20220502-CA 59 2026 UT App 5
State v. Camara

¶135 Indeed, in our view, the facts of this case highlight exactly
why the Soto test should be applied to jury contact that occurs in
the courtroom but off the record. After all, the fact that the
unauthorized statement was made in the courtroom during a key
witness’s testimony on a critical part of Camara’s alibi makes the
potential for prejudicial influence worse than if the same statement
had been made, say, in the hallway during a recess or in the walk-
up lunch restaurant line across the street. Thus, not only does the
line drawn by the lead opinion—inside the courtroom versus
outside the courtroom—strike us as somewhat arbitrary, but we
also think it is clearly at odds with both the text of rule 47(l) and
the purpose of the Soto test: to allow a district court to weigh the
prejudicial effect of an unauthorized jury contact based on the
“who,” the “what,” and the “circumstances” of the contact,
without considering the place of the contact as a categorical
threshold limitation.

¶136 On this point, the lead opinion appears to conflate two
distinct questions: whether a statement is admissible as evidence
and whether the speaker is authorized to communicate with the
jury. Even when testimony is inadmissible, the attorney for the
adversely affected party may nevertheless opt not to object to its
admission if there are strategic reasons for doing so. In other
words, there are instances where evidence that is technically
inadmissible can be properly considered by the jury. However,
wholly unauthorized statements—namely, those made off the
record—are not subject to this sort of attorney calculus. Again,
statements made off the record bypass our procedural,
evidentiary, and constitutional safeguards.

¶137 Finally, we disagree with the lead opinion that State v.
Cardall cautions away from applying the Soto test for in-court
occurrences. See 1999 UT 51, 982 P.2d 79. In Cardall, the jury
observed an interaction between the victim-witness and the
witness’s mother during a recess and after the trial judge had
retired to chambers. Id. ¶ 12. This interaction took place inside the
courtroom, but it occurred off the record during a break in the

20220502-CA 60 2026 UT App 5
State v. Camara

proceedings. Id. Yet our supreme court did not apply the
presumption of prejudice because there had been “no
conversation between witnesses and jurors, just a quiet exchange
between [the victim] and her mother.” Id. ¶ 21. According to the
lead opinion, this suggests that off-the-record communications in
the courtroom do not implicate the presumption of prejudice test.

¶138 We read Cardall differently. In that case, the court assessed
whether the interaction between the witness and her mother was
an “impermissible jury contact,” id., and on this point it seems
apparent that this innocuous interaction was not the kind of
substantive jury contact that would satisfy the Soto test. Although
the Soto test had not yet come into being, we suspect that had this
contact been rinsed through that test—who said what to whom,
and under what circumstances—the court would have concluded
that this contact did not trigger a presumption of prejudice.
Indeed, the court in Cardall provided sufficient reasons to reject
the presumption of prejudice under Soto’s analytical framework.
Specifically, the court in Cardall was unpersuaded that the
interaction was problematic regarding juror bias—or the “what”
under the Soto test. The court explained that “[t]he contact
between [the witness] and her mother was a quiet exchange of
affection, and there was no discussion regarding the substance of
[her] testimony or the case against [the defendant].” Id. ¶ 12. And
the court explained that “there was no conversation between
witnesses and jurors.” Id. ¶ 21. In other words, there were reasons
for the Cardall court to reject the presumption of prejudice, even
under the Soto test, that had nothing to do with whether the
interaction occurred inside or outside the courtroom.

¶139 For all of these reasons, we conclude that the jury contact
at issue here was the sort of contact that calls for application of the
Soto balancing test (rather than the ordinary rules governing
motions for mistrial). The contact in question occurred off the
record, and it was therefore an “unauthorized communication[]
likely to influence the jury’s judgment.” See Soto, 2022 UT 26, ¶ 18.
We are unpersuaded by the State’s argument that only direct and

20220502-CA 61 2026 UT App 5
State v. Camara

intended contact with jurors should count, and we do not read
Soto’s balancing test as being applicable only to jury contacts that
occur outside the four walls of the courtroom. Our holding today
is that, regardless of whether the jury contact occurred inside or
outside the courtroom, if it occurred off the record and outside the
observation of the trial judge, then it falls within the ambit of Soto
and calls for application of that case’s balancing test. 32

II. Soto’s Three-Part Test

¶140 We accordingly turn to the question of whether, under
Soto’s balancing test, a presumption of prejudice applies in this
case. As noted, Soto established a three-part “balancing test”
under which courts “consider[] who said what and the
circumstances surrounding the contact.” Id. ¶ 39. Soto further held
that there are no “categorical rule[s] as to what statements” made
by what kind of outsider “necessarily trigger the presumption.”
Id. ¶ 40; accord id. ¶ 41; see also id. ¶ 50 n.10 (declining to adopt a
“brightline rule” in this regard). Instead, Soto held that when
conducting this balancing, courts should “look to the rationale”
underlying these cases, which is that “unauthorized contact
during a trial between witnesses, attorneys or court personnel and
jurors that goes beyond a mere incidental, unintended, and brief
contact will trigger the presumption of prejudice.” Id. ¶ 40
(quotation simplified).

32. Although Soto’s logic may arguably require application of the
Soto balancing test to off-the-record jury contact that occurs within
the sensory observation of the judge, that is not the scenario
presented here. We therefore need not (and do not) resolve the
question of whether an off-the-record jury contact occurring
within the sensory observation of everyone in the courtroom—
that is, scenarios such as those from the cases listed in paragraph
67 of the lead opinion—would require application of the Soto
balancing test.

20220502-CA 62 2026 UT App 5
State v. Camara

¶141 Who. On the who prong, Soto held that the “more
important the speaker in the proceedings, or the more
authoritative the speaker within the criminal justice system, the
more likely” it is that a court should “presume prejudice.” Id. ¶ 41.
Soto also held that a court should “more likely” “assume prejudice
when a juror contact is made by an individual whose credibility
the jury may need to assess.” Id. ¶ 42; see also State v. Erickson, 749
P.2d 620, 621 (Utah 1987); State v. Pike, 712 P.2d 277, 280 (Utah
1985); State v. Anderson, 237 P. 941, 944 (Utah 1925); State v. Swain,
835 P.2d 1009, 1011 (Utah Ct. App. 1992).

¶142 Here, Juror 7 wasn’t sure “if it was [Bree] or who she was
talking to” that made the statement in question. If it was Bree who
made the statement, this would strongly favor applying the
presumption of prejudice, given that Bree was “an individual
whose credibility the jury [would] need to assess.” Soto, 2022 UT
26, ¶ 42. If it was Bree’s companion who made the statement, this
factor would not weigh in favor of the presumption quite as
strongly. But even so, as explained, the other person in question
was Bree’s attorney, and we think it natural to assume that Juror
7 would have understood this person to have been associated
with Bree in some way; after all, Bree was the alleged victim in the
case, and this person was sitting and conversing with her during
the trial. As a result, in that circumstance, we think the factor
would still weigh clearly in favor of applying the presumption.

¶143 What. On the what prong, the “more the communication is
directly relevant to the trial, the more likely it is to trigger the
presumption of prejudice,” while “communications unrelated to
the trial are less likely to trigger the presumption.” Id. ¶ 62. On
one end of the spectrum exist comments in which the “speaker
opines on the defendant’s guilt” or “touche[s] on the extremely
sensitive issue of sentencing.” Id. ¶¶ 62–63 (quotation simplified);
see also Logan City v. Carlsen, 799 P.2d 224, 226 (Utah Ct. App.
1990). “On the other end of the spectrum” are “brief and innocent
contacts unrelated to the case.” Soto, 2022 UT 26, ¶ 65; see, e.g.,
State v. Maestas, 2012 UT 46, ¶ 70, 299 P.3d 892 (declining to

20220502-CA 63 2026 UT App 5
State v. Camara

presume prejudice where the “communication with the jury did
not involve any substantive issues” and “the interaction was brief
and dealt with the timing of the jury’s dismissal for the day”).

¶144 Here, the information communicated was directly relevant
to the case. Whoever made the statement was opining on the
truthfulness of Wife’s testimony. Camara argues on appeal that
Wife was “a key defense witness.” Wife provided general,
defense-favorable testimony about the relationship between
Camara and Bree. Wife also testified that she and the Camara
children were with Camara and Bree during the drive on
September 29, 2015, and that therefore the alleged encounter Bree
described had not happened. But in the statement in question,
either Bree or her attorney said, “[S]he’s lying.” This statement
was directly germane to the credibility of a defense witness. We
accordingly conclude that this factor weighs strongly in favor of
applying the presumption of prejudice.

¶145 Circumstances. The circumstances prong is something of a
catch-all that allows a court to consider “the fact-intensive nature
of the inquiry.” Soto, 2022 UT 26, ¶ 70. Examples of special
circumstances that would weigh in favor of applying the
presumption of prejudice include whether the improper contact
occurred during jury deliberations, see id. ¶ 68, and whether the
defendant faced capital punishment, see id. ¶ 69. The guiding
principle is the defendant’s right to trial by an impartial jury, “and
the end goal should always be to ensure that [this right] has been
maintained above suspicion.” Id. ¶ 71 (quotation simplified).

¶146 Here, the State points out that only “one relevant juror”
heard the statement in question. And this is true. But even so, Soto
pointed to a past decision from the United States Supreme Court
holding that “the number of jurors potentially influenced by the
comments” in question was “of no moment,” given that the
defendant there “‘was entitled to be tried by 12, not 9 or even 10,
impartial and unprejudiced jurors.’” Id. ¶ 47 (quoting Parker v.
Gladden, 385 U.S. 363, 366 (1966)). And other cases support the

20220502-CA 64 2026 UT App 5
State v. Camara

view that the presumption of prejudice can apply even when
improper contact was made with just one juror. See, e.g., Erickson,
749 P.2d at 621 (applying the presumption of prejudice where one
juror had a conversation with a key state witness); Anderson, 237
P. at 944 (implying a presumption of prejudice where one juror
rode to and from court with a witness); Swain, 835 P.2d at 1011
(applying the presumption of prejudice where one juror
conversed with a witness about their high school reunion). Thus,
the fact that only one juror heard the comments is not a
circumstance that appreciably helps the State here.

¶147 On balance, the Soto test counsels in favor of applying the
presumption of prejudice. The first two factors—who said what—
weigh fairly clearly in favor of applying the presumption, and the
third factor is neutral. Accordingly, prejudice to Camara here
should have been presumed, and the State should be given an
opportunity to attempt to rebut that presumption.

III. Proceedings on Remand

¶148 At the time this issue arose in the district court, Soto had
not yet been issued, so the district court’s error in not applying a
presumption of prejudice based on the Soto test is entirely
understandable. Yet this was the procedural posture in Soto itself,
and in that case the court assigned error to the district court’s
actions, and it remanded the case for the district court to allow the
State the opportunity to rebut the presumption. See 2022 UT 26,
¶¶ 93–102. We take the same action here.

¶149 In so doing, we direct the district court to the Soto opinion,
and we give the same instructions that our supreme court gave in
Soto. There, the supreme court explained that whether the
presumption has been rebutted presents a “fact-specific” inquiry,
id. ¶ 94, that is “best left to the district court when possible,” id.
¶ 102. Because we have now concluded that the presumption of
prejudice applied, we accordingly “remand this matter back to the
district court to determine whether the presumption of prejudice

20220502-CA 65 2026 UT App 5
State v. Camara

has been . . . rebutted.” Id. ¶ 103. In conducting that examination,
the court should apply the principles set forth in Soto, id. ¶¶ 93–
100. Among other things, the State may attempt to rebut the
presumption by “call[ing] to testify the third parties who
communicated with the jury,” id. ¶ 96, or by “argu[ing] that its
evidence of [Camara’s] guilt was so strong that the improper
contact[] made no difference in the jury’s verdict,” id. ¶ 98. “If the
district court finds that the State did not rebut the presumption of
prejudice beyond a reasonable doubt, [Camara] must be given a
new trial.” Id. ¶ 103. But if the court finds that the State has
rebutted the presumption, then the case should be returned to this
court for further proceedings.

20220502-CA 66 2026 UT App 5