State v. Serrano

2019 UT App 32

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellant,
v.
ROBERTO SERRANO,
Appellee.

Opinion
No. 20170673-CA
Filed March 7, 2019

Fourth District Court, Provo Department
The Honorable Michael D. Lyon
No. 141400422

Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellant
Douglas J. Thompson, Attorney for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 A jury convicted Defendant Roberto Serrano of ten
criminal charges, including aggravated sexual abuse of a child,
rape of a child, and sodomy upon a child. After returning its
verdict, the jury informed the parties and the trial court that a
bailiff had provided it with an audio recording of a witness’s
trial testimony to review during its deliberations. Arguing that
the jury’s access to that testimony prejudiced him, Defendant
requested a new trial. The district court granted that request and
the State appeals. We affirm.
State v. Serrano

BACKGROUND

¶2 Following allegations of sexual abuse, an investigator
interviewed two alleged child victims at the Children’s Justice
Center (CJC Interviews). In the CJC Interviews, each child
described incidents of abuse involving Defendant. Based upon
these allegations, the State charged Defendant in a multi-count
information.

¶3 At trial, as part of its case-in-chief, the State played the
CJC Interviews for the jury. The children also testified at trial.
Defendant’s strategy at trial included arguing that the children
had fabricated the allegations. In support of this theory,
Defendant drew the jury’s attention to the differences and
inconsistencies between the children’s statements in the CJC
Interviews and their testimony at trial. Defense counsel noted
that the children testified at trial about new allegations not
previously described in the CJC Interviews. Defense counsel also
called an expert who testified that children’s memories “are not
like a tape recorder” and the process of reconstructing memories
“can be affected by a number of different factors that can
influence the quality of recollection.” Defense counsel
highlighted one child’s initial “strong denial that there was
anything inappropriate occurring . . . at her home.” Another
defense expert testified about the physical injuries one would
expect to see under the circumstances alleged. Among other
things, this expert concluded that the likelihood that one child
had experienced full vaginal intercourse as she testified at trial
was “probably just not on the table.”

¶4 During its deliberations the jury received, as part of the
trial exhibits, the video recordings of the CJC Interviews. 1 After

1. The district court found that “[t]he parties stipulated to
allowing the DVD of the CJC interview to be provided to the
(continued…)

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several hours of deliberations, without the knowledge of the
parties or the trial court judge, the jury asked the bailiff 2 for a
transcript of the trial testimony of one of the children. The bailiff
explained to the jury that a transcript was not available. The jury
again asked the bailiff for a transcript and, without the
knowledge of the parties or the judge, the bailiff provided the
jury with an audio recording of one child’s trial testimony. Soon
after receiving that recording, the jury found Defendant guilty
on all ten charges.

¶5 The trial court excused the jury after it had returned a
verdict and completed its charge, though all of the jury members
remained in the courtroom to speak with the parties. The jurors
informed the parties and the trial court that they had received an
audio recording of one child’s trial testimony. Defendant
subsequently filed a motion for a new trial arguing that the
jury’s access to an audio recording of trial testimony was
prejudicial extraneous evidence that should not have been
provided to the jury during its deliberations.

(…continued)
jury during its deliberations.” On appeal, the parties dispute the
existence of such a stipulation. Neither party disputes, however,
that the CJC Interview recordings went back with the jury as
part of the trial exhibits.

2. The officer in charge of the jury here served the dual role of
law clerk for the trial judge and bailiff. Following Defendant’s
post-trial motion for a new trial based upon the bailiff’s actions,
the trial judge recused from the case to avoid a potential conflict
of interest. We therefore refer to the judge presiding over the
trial as the “trial court,” and we refer to the judge presiding over
the post-trial motions as the “district court.”

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¶6 The district court held two evidentiary hearings on
Defendant’s motion for a new trial. At the second hearing, the
bailiff confirmed that he had provided the jury an audio
recording of one child’s trial testimony. Some of the jurors also
testified that, during their deliberations, the jury had received
and listened to the audio recording of the child’s trial testimony.
Defendant argued that the jury’s unsupervised access to a
recording of trial testimony unduly emphasized that testimony.
He further argued that it undermined his trial strategy and
deprived him of his right to a fair trial.

¶7 The district court granted Defendant’s motion for a new
trial. The district court determined that it was error for the bailiff
to provide the jury with an audio recording of a witness’s trial
testimony without following proper procedures. See Utah R. Civ.
P. 47(o) (“After the jury have retired for deliberation, if there is a
disagreement among them as to any part of the testimony . . .
they may require the officer to conduct them into court. Upon
their being brought into the court the information required must
be given in the presence of, or after notice to, the parties or
counsel.”). 3 The district court further determined that the jury’s
access to the recording of the trial testimony violated rule 17 of
the Utah Rules of Criminal Procedure. See Utah R. Crim. P. 17(l)
(2018) (stating that, when retiring to deliberate, “the jury may
take with them the instructions of the court and all exhibits
which have been received as evidence, except exhibits that
should not, in the opinion of the court, be in the possession of
the jury, such as exhibits of unusual size, weapons[,] or

3. The Utah Rules of Civil Procedure also govern criminal
proceedings “where there is no other applicable statute or rule”
and provided that the civil rule “so applied does not conflict
with any statutory or constitutional requirement.” Utah R. Civ.
P. 81(e).

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contraband”); see also State v. Cruz, 2016 UT App 234, ¶ 39, 387
P.3d 618 (explaining that “under no circumstances shall the jury
have unfettered access to audio- or video-recorded statements in
the jury room during deliberations” (quotation simplified)). 4
These rule violations, the district court concluded, deprived
Defendant of his right to a fair trial. The State appeals the district
court’s decision.

ISSUE AND STANDARDS OF REVIEW

¶8 The State argues that the district court erroneously
granted Defendant’s motion for a new trial. We review a district
court’s decision to grant a motion for a new trial for an abuse of
discretion. State v. Bossert, 2015 UT App 275, ¶ 13, 362 P.3d 1258.
“We assume that the [district] court exercised proper discretion
unless the record clearly shows the contrary.” State v. James, 819
P.2d 781, 793 (Utah 1991). We review the court’s factual findings
underlying its decision to grant a new trial for clear error,

4. The parties’ primary dispute concerns the provision of
recorded trial testimony to the jury during its deliberations. The
parties do not dispute that the recorded CJC Interviews went
back with the jury during its deliberations. As a general rule, we
do not approve of providing the jury with recorded testimony,
in any form, for it to review during its deliberations though we
recognize that it may seem important or perhaps even necessary
to a particular legal theory. See State v. Cruz, 2016 UT App 234,
¶¶ 38–39, 387 P.3d 618. “‘The law does not permit depositions or
witnesses to go to the jury room. Why should a witness be
permitted to go there in the form of [recorded] testimony?’” Id.
¶ 36 (quoting State v. Solomon, 87 P.2d 807, 811 (Utah 1939)). But
given that the parties here did not and do not challenge the
provision of the recorded CJC Interviews to the jury during its
deliberations, we do not address this question further.

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Bossert, 2015 UT App 275, ¶ 13, and “we review the legal
standards applied by the district court . . . for correctness,” State
v. Allen, 2005 UT 11, ¶ 50, 108 P.3d 730 (quotation simplified).

ANALYSIS

¶9 The district court determined that the jury’s improper
access to a witness’s trial testimony during its deliberations
affected Defendant’s right to a fair trial. Accordingly, the district
court granted Defendant’s motion for a new trial. On appeal, the
parties do not dispute the district court’s determination of error
and impropriety. That is, both parties agree that the bailiff
should not have provided the jury with an audio recording of a
witness’s trial testimony without the permission of the trial court
judge or in a way not permitted by rule.

¶10 The State argues, however, that the district court erred in
ultimately concluding that the jury’s unrestricted access to a
witness’s trial testimony was prejudicial to Defendant.
Specifically, the State asserts that “the contact between the
bailiff and the jury concerning the [child’s] trial testimony
did not create a presumption of prejudice. Thus, the [district]
court erroneously presumed prejudice.” We agree with the
State that the contact between the jury and the bailiff here did
not warrant application of a rebuttable presumption of
prejudice. We nevertheless conclude that the district court did
not exceed its discretion when it granted Defendant’s motion for
a new trial.

¶11 The State advances two challenges to the district court’s
decision. First, the State argues that the district court improperly
construed the jury-bailiff contact as improper contact between
the jury and court personnel, necessitating a presumed prejudice
standard. Second, the State argues that the district court erred in
concluding that the bailiff’s provision of testimonial evidence to

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the jury prejudiced Defendant. We address each argument in
turn.

I. The Inappropriate-Contact Analysis

¶12 The constitutions of the United States and the state of
Utah guarantee a criminal defendant the right to an impartial
jury. U.S. Const. amend. VI; Utah Const. art. I, § 12. Consistent
with this right, jury verdicts must be “‘above suspicion’ as to
whether any juror might have been influenced by any
inappropriate contact.” State v. Soto, 2018 UT App 147, ¶ 10, 427
P.3d 1286 (quoting State v. Anderson, 237 P. 941, 944 (Utah 1925)),
cert. granted, 432 P.3d 1231 (Utah 2018); accord State v. Crank, 142
P.2d 178, 194 (Utah 1943) (observing that “the verdict of the jury,
like Caesar’s wife, must be above suspicion”). Consequently, our
supreme court has held that “a rebuttable presumption of
prejudice arises from any unauthorized contact during a trial
between witnesses, attorneys[,] or court personnel and jurors
which goes beyond a mere incidental, unintended, and brief
contact.” State v. Pike, 712 P.2d 277, 280 (Utah 1985). If applicable,
this rebuttable presumption of prejudice shifts the burden to the
State and requires that the prosecution “prove that the
unauthorized contact did not influence the [jury].” State v. Allen,
2005 UT 11, ¶ 51, 108 P.3d 730.

¶13 Here, without the knowledge of the parties or the judge
and during its deliberations, the jury asked the bailiff to provide
a transcript of a witness’s trial testimony. The bailiff responded
to the request by providing the jury with an audio recording of
that testimony without relaying the request to the trial court and
without the knowledge of the parties. The State argues, and we
agree, that the exchange in this case—the contact with the bailiff
and the jury’s request for evidence—did not qualify as
“inappropriate contact” justifying a presumption of prejudice.
See Pike, 712 P.2d at 280. The particular jury-bailiff contact at
issue here is contemplated by our rules.

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¶14 To be sure, the officer in charge of the jury in our trial
courts—the bailiff in the case at hand—plays a unique role in
jury trials. When a case is submitted to the jury, for example, the
officer is charged with shielding the jury from “any
communication to be made to them.” Utah R. Crim. P. 17(l)
(2018). Indeed, our rules prohibit the officer from “speak[ing] to
the jury except to ask them if they have agreed upon their
verdict.” Id. But because “the bailiff is assigned to minister to the
jurors’ needs and to be the contact person,” we expect “contacts
beyond mere civilities between jurors and a bailiff.” See State v.
Jonas, 793 P.2d 902, 909 (Utah Ct. App. 1990). While deliberating,
the jury may ask the bailiff—and only the bailiff—to pass along
its request for evidence or information on points of law
regarding the case. Utah R. Crim. P. 17(m) (“[I]f [the jury]
desire[s] to be informed on any point of law arising in the cause,
they shall inform the officer in charge of them, who shall
communicate such request to the court.”); Utah R. Civ. P. 47(o)
(“[I]f there is a disagreement among [the jurors] as to any part of
the testimony, or if they desire to be informed on any point of
law arising in the cause, they may require the officer to conduct
them into court.”).

¶15 Under the circumstances here, the jury’s contact with the
bailiff was authorized by our procedural rules. The jury twice
asked the bailiff for a transcript of a witness’s trial testimony.
Although the jury’s contact with the bailiff was not necessarily
improper or prejudicial, the bailiff should have relayed the jury’s
request to the trial court. See Utah R. Crim. P. 47(o). The court—
after discussion with counsel and deeming it appropriate—could
then have brought the jury into court where the testimony could
have been replayed, in full, “in the presence of, or after notice to,
the parties or counsel.” Id. The bailiff’s failure to relay the jury’s
request to the court does not render the jury’s contact with the
bailiff unauthorized. As a result, the rebuttable presumption of
prejudice applicable in situations involving inappropriate

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contact does not apply here and the district court erred in
concluding otherwise. The burden therefore should have
remained on Defendant to affirmatively establish that his right
to a fair trial had been prejudiced by the jury’s receipt of
recorded testimony rather than having that burden shifted to the
State to disprove prejudice. We now consider whether, despite
the trial court improperly shifting the burden, the district court
nevertheless properly determined that Defendant had
affirmatively established prejudice.

II. Prejudice

¶16 Because the burden-shifting associated with the
rebuttable presumption of prejudice was not warranted here,
Defendant retained the burden to establish prejudice. That is,
Defendant was required to demonstrate that the information the
bailiff provided to the jury during its deliberations deprived him
of his right to a fair trial. See Utah R. Crim. P. 24(a); see also State
v. Harmon, 956 P.2d 262, 268 (Utah 1998) (“If the error is
substantial and prejudicial to the extent that there is a reasonable
probability that it affected the reliability of the trial outcome,
then a new trial is required.”).

¶17 As the State observes, to merit a new trial “Defendant had
to demonstrate . . . that ‘without the [bailiff’s] error there was a
reasonable probability of a more favorable result for the
defendant.’” (Quoting State v. Rodriguez, 2012 UT App 81, ¶ 9,
274 P.3d 1012.) The State presents two arguments in support of
its claim that the district court erred in concluding Defendant
was prejudiced. 5 The State first argues that “[f]airness to the

5. Under the circumstances here, the district court improperly
shifted the burden of proof and persuasion to the State to rebut
the presumption of prejudice resulting from the inappropriate
contact. See supra ¶¶ 12–15. But the district court did not simply
(continued…)

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jury’s truth-seeking process dictated that the jury should have
equal access to [the child’s] trial testimony upon request.” In its
second argument, the State contends that “the jury did not
ponder [the child’s] trial testimony long before reaching its
verdict” and therefore the jury’s access to that trial testimony
could not have influenced its verdict. We are not persuaded that
either of these assertions undermines the district court’s decision
to grant Defendant a new trial.

¶18 Because the jury had unfettered access to the recordings
of the CJC Interviews, the State argues that “the trial court was
not bound—as the [district] court believed it was—by rules and
case law restricting the jury’s access to an audio recording of [the
child’s] trial testimony.” This argument is perplexing. The State
argues, in essence, that because the jury had access to video
recordings of testimonial evidence (i.e., the CJC Interviews), the
“truth-seeking process . . . dictated that the jury also have access to
[the child’s] trial testimony,” upon request. (Emphasis added.)
The State’s argument misses the mark. The jury’s access to the
CJC Interview recording during its deliberations does not render
that witness’s trial testimony fair game.

¶19 The State acknowledges that, had the trial court
allowed the jury to rehear trial testimony, it must nonetheless
“ensure ‘that [such testimony] is not so selected, nor used in

(…continued)
conclude that the State failed to carry this burden. While the
court applied the burden to show prejudice to the wrong party,
the district court nevertheless considered the circumstances and
concluded that the error—providing recorded trial testimony to
the jury—resulted in “a substantial adverse effect on
Defendant’s rights” to a fair trial. Because the district court
concluded that the error was substantial and prejudicial, we
affirm its ultimate conclusion despite its burden-shifting error.

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such a manner, that there is likelihood of it being given
undue weight or emphasis by the jury which would confer an
unfair advantage on either party.’” (Quoting State v. Hines, 307
P.2d 887, 889 (Utah 1957).) As we have previously noted,
the recorded statement of a witness “‘is the functional equivalent
of a live witness, and can be particularly persuasive.’” State v.
Cruz, 2016 UT App 234, ¶ 39, 387 P.3d 618 (quoting State v. A.R.,
65 A.3d 818, 829 (N.J. 2013)). For this reason, the jury should
not have unfettered access to recordings of testimonial evidence
during deliberations, but the court—after discussion with
counsel, deeming it wise, and pursuant to the rule—may replay
the testimony “in open court” allowing “the required record of
the replay to be made.” Id. (quotation simplified).

¶20 Had the trial court here considered the jury’s request
for evidence and allowed the jury to hear the recording of
the witness’s testimony, that evidence would have been given to
the jury in court and in the presence of Defendant. See Utah R.
Civ. P. 47(o). This process would have allowed the court
to approve and control the jury’s access to the testimony, it
would have allowed a record to be made of the replay,
and the court could have limited the jury’s selective
consideration of that testimony through appropriate instruction.
We are not persuaded that the trial court therefore should have
provided the jury unfettered access to the witness’s trial
testimony because the jury had access to the recordings of the
witness’s CJC Interviews and could watch and re-watch
those recordings at will. In other words, the jury’s access to
certain testimonial evidence during deliberations does not
open the door as a matter of course to its access to other
testimonial evidence. See Cruz, 2016 UT App 234, ¶ 36 (observing
that “the law does not permit depositions or witnesses to go
to the jury room. Why should a witness be permitted to go
there in the form of [recorded] testimony?” (quotation
simplified)).

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¶21 Defendant’s defense theory of fabrication relied on
multiple pieces of evidence. Certainly defense counsel drew the
jury’s attention to inconsistencies between the children’s
testimony at trial and their statements in the CJC Interviews. But
this information formed only part of the picture. Defendant
presented the testimony of two experts who suggested that the
witnesses’ memories and lack of physical injuries could also
support fabrication. The defense highlighted one witness’s initial
denial of any inappropriate behavior at home, subsequent
education about sexual abuse, and her later accusation of sexual
abuse. By inappropriately receiving unfettered access to only one
piece out of a whole range of testimonial evidence presented,
that recorded trial testimony was given undue emphasis.

¶22 The State’s second argument focuses primarily on the
district court’s substantive conclusion that prejudice prevented
Defendant from receiving a fair trial. Specifically, the State
asserts that the jury’s relatively short time with the audio
recording meant that “there is little likelihood that the jury
would have reached a different result had the jury heard all of
[the child’s] testimony in open court.” The State does not
explain, with reasoned analysis and citation to authority, how
the brevity of a jury’s review of evidence cannot influence its
verdict. See Utah R. App. P. 24(a)(8). The record does not reflect
what part of the recording the jury reviewed, but it suggests that
the jury was focused on certain trial testimony and persisted in
its requests to obtain it. That testimony was not cumulative of
other evidence and it did not support Defendant’s defense
theory. It included, for example, allegations of sodomy that were
not discussed in the CJC Interviews. Additionally, as the district
court explained, “the jury may have been persuaded by [the
witness’s] maturity” and thus could have placed greater weight
in the later statement—the trial testimony—of the witness.

¶23 The jury’s free access to the witness’s recorded trial
testimony, even if for only a short period, could have influenced

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the jury’s decision. Considering Defendant’s motion for a new
trial, the district court properly concluded that the circumstances
established prejudice. Although the district court improperly
shifted the burden to the State, it nevertheless determined that
the bailiff’s provision of testimony to the jury affirmatively and
substantially affected Defendant’s right to a fair trial.
Consequently, we are not persuaded that the district court
exceeded its discretion when it granted Defendant’s motion for a
new trial.

CONCLUSION

¶24 The presumption of prejudice standard applicable to
inappropriate contact between a jury and court participants or
court personnel does not apply under the circumstances
presented here. The district court therefore erred in applying the
rebuttable-presumption-of-prejudice standard. While the district
court improperly shifted the burden to the State to rebut the
presumption of prejudice, it nevertheless properly concluded
that the circumstances affirmatively established that Defendant
was deprived of his right to a fair trial. The district court
therefore did not exceed its discretion when it granted
Defendant’s motion for a new trial. We affirm.

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