State v. Clark

2016 UT App 120

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
DEBBRA JO CLARK,
Appellant.

Memorandum Decision
No. 20140955-CA
Filed June 3, 2016

Third District Court, West Jordan Department
The Honorable Terry L. Christiansen
No. 131401488

Lori J. Seppi and Heather J. Chesnut, Attorneys
for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Memorandum
Decision, in which JUDGE MICHELE M. CHRISTIANSEN and SENIOR
JUDGE PAMELA T. GREENWOOD concurred. 1

VOROS, Judge:

¶1 This is a shoplifting case. Surveillance video showed
defendant Debbra Jo Clark and a friend (Friend) arriving at a
supermarket together but entering the store separately. A loss-
prevention officer testified without contradiction that Clark
entered the store, picked up some picture-hanging hooks, put
them into her otherwise empty purse, and headed for the exit. At

1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
State v. Clark

the same time, Friend was attempting to return similar picture-
hanging hooks without a receipt. At trial, Friend admitted that
she had previously been convicted of theft by deception after she
and Clark’s boyfriend (Boyfriend) had cashed some forged
payroll checks. Friend also testified that she and Boyfriend were
not charged jointly. The court admitted into evidence an exhibit
showing that Friend and Boyfriend had been charged jointly in
the prior case. After deliberating for 26 minutes, the jury
convicted Clark of retail theft, a third degree felony, and
criminal trespass, a class B misdemeanor.

¶2 On appeal, Clark challenges her conviction for theft by
deception. She contends that the trial court erred in admitting
the exhibit under rules 402, 403, 802, 901, and 902 of the Utah
Rules of Evidence and the Confrontation Clause of the United
States Constitution. However, we do not consider the exhibit’s
admissibility, because we conclude that its admission was
harmless in any event.

¶3 Clark had a history at this store. In fact, a store loss-
prevention officer had previously told Clark that she was
banned from entering any of the store’s properties “for the rest
of her life.” So when the officer saw Clark walk into the store,
she called the police. The officer then continued to watch Clark
throughout Clark’s trip through the store. She saw Clark select
some picture-hanging hooks, put them in her purse, and head
for the exit. Clark then saw the officer for the first time.
According to the officer, Clark, with a look of “pure panic,” spun
around and went right back in, took everything out of her purse,
and “ditched it on a shelf.” When confronted by the officer,
Clark said she did not know why she was at the store. The
officer informed her that she had trespassed, to which Clark
responded, “I didn’t steal anything.” When Clark opened her
purse, it was completely empty, without even a wallet inside.
Police arrived and arrested Clark.

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State v. Clark

¶4 Meanwhile, Friend was attempting to return some
medication for which she had receipts, and some picture-
hanging hooks for which she had no receipt. The loss-prevention
officer questioned but released Friend, telling her never to come
back.

¶5 At trial, Friend was the only defense witness. She testified
that she and Clark had gone to the store to buy food for dinner
and that she had entered the store first because Clark needed
to settle her dog in the car before going inside. On cross-
examination, the prosecutor asked Friend about an unrelated
incident in which Friend and Boyfriend had been prosecuted for
passing forged payroll checks. Friend acknowledged that she
had pled guilty to theft by deception in connection with that
incident.

¶6 None of the foregoing evidence is challenged on appeal.
Clark’s challenge goes only to admission of an exhibit consisting
of the criminal information and arrest warrant in Friend’s theft-
by-deception case. At trial, the prosecutor asked Friend if she
had been charged with Boyfriend. Friend said they “weren’t
charged together” and that there “was some mix-up in [her]
court case” because they “never had trial together, never had
court together.” The prosecutor then offered the exhibit, which
showed that Friend and Boyfriend had indeed been charged
together for forgery and that Boyfriend had been “twice before
convicted of Theft.” At that point, the judge asked Friend, “Were
you jointly charged with [Boyfriend]?” After Friend again
denied that they were, the court admitted the exhibit into
evidence.

¶7 Clark claims that the trial court erred in admitting the
exhibit. However, an evidentiary error “cannot result in
reversible error unless the error is harmful.” State v. Hamilton,
827 P.2d 232, 240 (Utah 1992); see also Utah R. Evid. 103(a) (“A
party may claim error in a ruling to admit or exclude evidence

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State v. Clark

only if the error affects a substantial right of the party . . . .”).
“[H]armless error is an error that is sufficiently inconsequential
that there is no reasonable likelihood that it affected the outcome
of the proceedings.” State v. Evans, 2001 UT 22, ¶ 20, 20 P.3d 888.

¶8 A claim of constitutional error stands on different footing.
If Clark had preserved her Confrontation Clause claim at trial,
and if she could establish a constitutional violation on appeal,
the burden would shift to the State to demonstrate that the error
was harmless beyond a reasonable doubt. See State v. McCallie,
2016 UT App 4, ¶ 12, 369 P.3d 103 (citing Brecht v. Abrahamson,
507 U.S. 619, 630 (1993); Chapman v. California, 386 U.S. 18, 24
(1967); and State v. Calliham, 2002 UT 86, ¶ 45, 55 P.3d 573). On
the other hand, if Clark did not preserve her Confrontation
Clause claim at trial, and must rely on the plain error doctrine on
appeal, the burden remains with her to demonstrate prejudice,
just as with ordinary, non-constitutional error. See State v. Bond,
2015 UT 88, ¶ 44, 361 P.3d 104 (“[W]e hold that unpreserved
federal constitutional claims are not subject to a heightened
review standard but are to be reviewed under our plain error
doctrine.”).

¶9 Clark did not preserve her Confrontation Clause claim at
trial. A party may challenge an evidentiary ruling on appeal
only if the party preserved the challenge at trial by timely
objecting to the ruling on “the specific ground” asserted on
appeal. See Utah R. Evid. 103(a). Clark did not identify the
Confrontation Clause as “the specific ground” of any objection
at trial. She did not cite the Confrontation Clause; invoke her
right to confront the witnesses against her; cite Crawford v.
Washington, 541 U.S. 36 (2004), or any other well-known
Confrontation Clause case; or even mention the United States
Constitution. And although “a hearsay objection is not sufficient
to preserve a Confrontation Clause argument for appeal,” In re
D.V., 2011 UT App 241, ¶ 9, 265 P.3d 803, Clark did not lodge a
hearsay objection either. Because Clark did not preserve her

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State v. Clark

Confrontation Clause claim, she can prevail on appeal only
under a plain error analysis. Under that analysis, as with
preserved claims of non-constitutional error, she bears the
burden of demonstrating prejudice. See Bond, 2015 UT 88, ¶ 44.

¶10 Consequently, for all her claims on appeal, Clark can
prevail only by demonstrating prejudice, that is, by “showing
that, absent the error, there is a reasonable likelihood of a more
favorable outcome for the appellant, or phrased differently, our
confidence in the verdict is undermined.” State v. Powell, 2007
UT 9, ¶ 21, 154 P.3d 788 (citation and internal quotation marks
omitted). “In making this determination, we consider a host of
factors including, among others, the importance of the
[evidence] to the prosecution’s case and the overall strength of
the State’s case.” State v. Hamilton, 827 P.2d 232, 240 (Utah 1992).

¶11 Clark argues that admission of the exhibit unfairly
prejudiced her because it “painted Clark’s good friend . . . and
boyfriend . . . as dishonest thieves and repeat criminals, who had
stolen not just inexpensive retail items but large amounts of
cash.” The exhibit included Friend’s full name and aliases, as
well as other identifying information; it detailed the check-
cashing scheme, including that Friend acted with the purpose to
defraud and cashed a check for nearly $1,000; it identified the
scheme as a third degree felony; and it included a probable cause
statement supporting the issuance of an arrest warrant. It also
included an arrest warrant stating, among other things, that the
magistrate had reasonable grounds to believe that Friend would
not appear on a summons. All of this evidence, Clark argues,
invited the jury to find her guilty by association.

¶12 We do not agree that Clark has shown a reasonable
likelihood of a more favorable outcome had the exhibit not been
admitted. First, far from being important to the State’s case, the
exhibit was peripheral and largely cumulative. It never mentions
Clark at all. It does show that Friend was engaged in unrelated

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State v. Clark

criminal activity. But Friend herself let that cat out of the bag
when she described the check-cashing scheme for the jury.

¶13 In addition, beyond naming both Friend and Boyfriend in
the same document, none of the aspects of the exhibit that Clark
highlights on appeal were highlighted at trial. In fact, no one at
trial referenced any part of the exhibit except to note that the
State charged both Friend and Boyfriend and that the State
charged them with a third degree felony. But Friend admitted
from the start that she and Boyfriend were involved in the same
check-cashing scheme. So in that respect, as Clark herself notes,
the exhibit did not undermine Friend’s testimony, but instead
“corroborated [Friend’s] testimony that she was convicted due
to her involvement in the check-cashing scheme” and that
Boyfriend “was involved in the same scheme.” As for the third
degree felony charge, at Clark’s request, the court instructed the
jury that Friend had been convicted of class A misdemeanor
theft by deception, not third degree felony forgery. Aside from
never being mentioned at trial, much of the content of the exhibit
that Clark complains of on appeal appears in dense text, some of
it on page four of the four-page exhibit. It strains credulity to
believe that the jury spent any of its 26 minutes of deliberation
combing through the fine print of this exhibit to find her guilty
by association.

¶14 Besides, the jury had no need to find Clark guilty by
association; the direct evidence of her guilt was strong. The loss-
prevention officer, who knew Clark from prior encounters,
testified as an eyewitness to every aspect of Clark’s conduct
supporting the retail theft charge, including the fact that Clark
was carrying an empty purse. No evidence at trial controverted
the officer’s testimony. Only Friend testified for the defense; she
claimed that Clark had come to buy “stuff for dinner.” But Clark
visited only the home improvement and the seasonal aisles, not
the grocery section, and in any event had nothing in her purse
with which to pay for groceries. Also, Friend was detained in the

20140955-CA 6 2016 UT App 120
State v. Clark

act of returning picture-hanging hooks—the very sort of item
that Clark had shoplifted.

¶15 On this record, the admission of an exhibit that included
some information that made the defense witness look like a
criminal does not undermine our confidence in the jury’s verdict.
Because admission of the exhibit was harmless, and because
Clark did not preserve her Confrontation Clause challenge, we
need not determine whether the trial court admitted the exhibit
in violation of any rule of evidence or of the Confrontation
Clause. We express no opinion on those questions.

¶16 The judgment is affirmed.

20140955-CA 7 2016 UT App 120