State v. Dunne

2020 UT App 56

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JAMES ROBERT DUNNE,
Appellant.

Opinion
No. 20180646-CA
Filed April 9, 2020

Second District Court, Farmington Department
The Honorable Thomas L. Kay
No. 171701160

Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee

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

POHLMAN, Judge:

¶1 In 2018, a jury convicted James Robert Dunne of retail
theft. During trial, Dunne testified as the defense’s primary
witness, denying the allegations of theft. Dunne contends that
the State improperly questioned him about plea negotiations in
the case, arguing that the trial court exceeded its discretion in
failing to grant a mistrial on that basis. We affirm.
State v. Dunne

BACKGROUND 1

¶2 One night in March 2017, Dunne and his friend (Friend)
drove together to a store intending to steal some items. Friend
carried a blanket-covered car seat, which he put into a shopping
cart before entering the store. Dunne, on the other hand,
retrieved a shopping cart upon entering the store.

¶3 Once inside, Dunne and Friend did not shop together.
Friend visited the electronics and the hardware departments
and ultimately exited the store without paying for some items,
which he had surreptitiously placed in the car seat under the
blanket.

¶4 For his part, Dunne went to the infant and pharmacy
departments, where he placed a large box of diapers and a
humidifier into his cart. After both items were in his cart, but
before approaching the registers at the front of the store, Dunne
“fumbl[ed] in his pockets for a moment” and retrieved a piece of
paper. Dunne then left the store without paying for either item.
As he was leaving, one of the store’s greeters (Greeter) followed
him, twice asking to see his receipt. Rather than stop, Dunne
quickly walked toward his car, waving a piece of paper and
stating to Greeter, “I don’t have to stop.”

¶5 Greeter followed Dunne to his car and wrote down its
license plate number. Greeter then reported the incident to one
of the store’s loss prevention associates (Associate). Associate
reviewed the video surveillance of both Dunne and Friend and

1. On appeal from a jury verdict, we view the evidence in a light
most favorable to that verdict and recite the facts accordingly.
State v. Goins, 2017 UT 61, ¶ 3 n.1, 423 P.3d 1236. “We present
conflicting evidence only as necessary to understand issues
raised on appeal.” Id. (cleaned up).

20180646-CA 2 2020 UT App 56
State v. Dunne

observed their activities in the store, including their failure to
pay for the items they took with them.

¶6 Approximately two weeks later, Associate observed
Friend enter the store with a woman. Both were detained by law
enforcement for stealing merchandise from the store on that
occasion and were taken to the loss prevention office. Associate
questioned Friend about the earlier theft and the identity of the
person with him. Friend was not sure about his companion’s last
name but identified him as “Jimmy.”

¶7 About a month later, Associate observed and
photographed Dunne at one of the store’s other locations in
Utah. She testified that he wore the “same exact clothing, the
same hoodie and the same hat” as he had during the theft. She
later learned Dunne’s identity and provided the information to
the police.

¶8 The State charged Dunne with one count of retail theft. 2
Shortly before trial, the court held a hearing requested by
defense counsel based on the expectation that Dunne would
enter a guilty plea to the charge. However, counsel explained at

2. As defined in the Utah Code,
A person commits the offense of retail theft when
he knowingly: (1) Takes possession of, conceals,
carries away, transfers or causes to be carried away
or transferred, any merchandise displayed, held,
stored or offered for sale in a retail mercantile
establishment with the intention of retaining such
merchandise or with the intention of depriving the
merchant permanently of the possession, use or
benefit of such merchandise without paying the
retail value of such merchandise . . . .
Utah Code Ann. § 76-6-602(1) (LexisNexis 2017).

20180646-CA 3 2020 UT App 56
State v. Dunne

the hearing that Dunne had decided not to accept the State’s plea
offer after all, and trial was rescheduled.

¶9 At trial, Greeter and Associate testified for the State.
Greeter testified about his encounter with Dunne, while
Associate testified to Greeter’s report, her review of the
surveillance video of the events, and her subsequent encounters
with both Friend and Dunne. Additionally, during Associate’s
testimony, the jury was shown clips from the video surveillance
captured by the store, which, among other things, showed
Dunne exiting the store without stopping at the registers to pay.3

¶10 Friend also testified on behalf of the State, which had
given him use immunity 4 to testify about the incident with
Dunne. Friend testified that he and Dunne had driven to the
store together on the night in question, that they were going to
the store “to steal,” and that afterward they drove away from the

3. In the video exhibits admitted during trial, Dunne is portrayed
as walking completely around the register area to the front of the
store and ultimately toward an exit, without stopping to pay.

4. “A witness who refuses, or is likely to refuse, on the basis of
the witness’s privilege against self-incrimination to testify or
provide evidence or information in a criminal investigation . . .
may be compelled to testify or provide evidence . . . after being
granted use immunity with regards to the compelled testimony
or production of evidence or information . . . . Testimony,
evidence, or information compelled . . . may not be used against
the witness in any criminal or quasi-criminal case, nor any
information directly or indirectly derived from this testimony,
evidence, or information, unless the testimony, evidence, or
information is volunteered by the witness or is otherwise not
responsive to a question.” Utah Code Ann. § 77-22b-1(1)(a), (2)
(LexisNexis 2017).

20180646-CA 4 2020 UT App 56
State v. Dunne

store together. He also confirmed that Dunne had stolen the
diapers and the humidifier.

¶11 Dunne testified as the defense’s primary witness. He
testified on direct examination that he purchased the diapers and
the humidifier for Friend’s baby and that he showed his receipt
to Greeter when he exited the store. When asked where the
receipt was, Dunne stated that he lost it. He also denied going to
the store to steal and testified that he was not aware Friend had
stolen anything.

¶12 During cross-examination, when asked by the State
whether “we can agree you don’t want to get into trouble,”
Dunne stated that he would “take [the] blame” if what he had
done was wrong but that he knew he had “bought those two
items.” And when questioned about whether he had “lied before
to keep [him]self from getting into trouble in criminal cases,” he
admitted to pleading guilty to charges for felony theft and
giving false information to a police officer. Dunne then testified
on re-direct that he pleaded guilty to both crimes because he had
committed them. But when asked by defense counsel why he
did not plead guilty to the theft in the present case, Dunne
explained that it was because he “did not steal” the items.

¶13 On re-cross, the following exchange took place:

Q: . . . Mr. Dunne, you stated that in the past
you’ve pled guilty when you’re guilty, but you’re
not pleading guilty now because you’re saying
you’re not guilty?

A: I’m not guilty.

Q: . . . Isn’t it true in this case you were going to
plead guilty until the State wouldn’t give you the
sentence you wanted?

20180646-CA 5 2020 UT App 56
State v. Dunne

A: No, I—no, I—

Q: Isn’t it true you came into court and you were
going to plead guilty, but because I wouldn’t give
you what you wanted, you changed position?

Defense counsel then objected, asserting that the questions went
to inadmissible plea negotiations. The trial court immediately
sustained the objection.

¶14 Outside of the jury’s presence, defense counsel moved
for a mistrial based on the exchange. Counsel argued that
asking Dunne why he changed his mind about pleading guilty
in this case was “improper under the Rules of Evidence” and
that the question “should not have been posed.” Counsel also
contended that the question was “very prejudicial to Mr.
Dunne” because it led the jury “to believe that [Dunne] is guilty
of the crime and tried to plead guilty.” And counsel asserted
that a curative instruction would not be sufficient to “fix” the
harm it caused.

¶15 In resolving the motion for a mistrial, the court framed
the issue as whether the State’s question about why Dunne chose
not to plead guilty was “by itself enough to cause a mistrial”
because “there was a question and no answer.” The court
ultimately concluded that the issue did not “rise[] to a mistrial.”
It also declined the State’s suggestion that a curative instruction
would be appropriate, stating that giving the jury a curative
instruction would “just put more attention on the issue” and
“make people think more about it.”

¶16 The jury convicted Dunne as charged. He was sentenced
to a suspended prison term, a short jail term, and a three-year
probation, and he was ordered to pay restitution to the store.
Dunne appeals.

20180646-CA 6 2020 UT App 56
State v. Dunne

ANALYSIS

¶17 On appeal, Dunne argues that the trial court erred by not
granting a mistrial on the basis of the State’s plea-negotiation
questioning during its re-cross examination. Dunne argues that
the plain language and the policy considerations behind rule 410
of the Utah Rules of Evidence 5 establish that the line of
questioning was impermissible. He also argues that the
questioning prejudiced his case because it was “inconsistent
with [his] claim of innocence at trial” and “implied that [his]
guilt was a foregone conclusion.”

¶18 A trial court’s denial of a mistrial motion is reviewed for
abuse of discretion. State v. Wach, 2001 UT 35, ¶ 45, 24 P.3d 948.
A trial court “should not grant a mistrial except where the
circumstances are such as to reasonably indicate that a fair trial
cannot be had and that a mistrial is necessary in order to avoid
injustice.” State v. Duran, 2011 UT App 254, ¶ 33, 262 P.3d 468
(cleaned up). “Because a district judge is in an advantaged
position to determine the impact of courtroom events on the

5. Rule 410 of the Utah Rules of Evidence provides:
[E]vidence of the following is not admissible
against the defendant who made the plea or
participated in the plea discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made during a proceeding on either
of those pleas under Federal Rule of Criminal
Procedure 11 or a comparable state procedure; or
(4) a statement made during plea discussions with
an attorney for the prosecuting authority if the
discussions did not result in a guilty plea or they
resulted in a later-withdrawn guilty plea.
Utah R. Evid. 410(a).

20180646-CA 7 2020 UT App 56
State v. Dunne

total proceedings, once a district court has exercised its
discretion and denied a motion for a mistrial,” an appellate court
“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. Allen, 2005 UT 11,
¶ 39, 108 P.3d 730 (cleaned up).

¶19 In evaluating whether a trial court’s denial of a mistrial
motion is “plainly wrong” in circumstances involving a
potentially improper remark, our courts have looked to the
totality of the evidence against the defendant as well as the
context of the improper statement. See id. ¶¶ 39–44 (cleaned up)
(explaining that a mistrial is not required where the allegedly
improper statement is “not intentionally elicited, is made in
passing,” and is otherwise vague and lacking detail); Wach, 2001
UT 35, ¶¶ 44–46 (trial court did not exceed its discretion in
denying a mistrial motion based on victim’s isolated comment
during direct examination suggesting she was generally afraid of
the defendant given the “totality of the evidence” against the
defendant).

¶20 In this respect, our courts have held that a mistrial is not
required where, given the totality of the evidence, the potentially
improper statement was not likely to have influenced the jury’s
decision. See State v. Butterfield, 2001 UT 59, ¶ 47, 27 P.3d 1133
(concluding that the trial court did not abuse its discretion in
denying a mistrial motion where, in light of the totality of the
evidence against the defendant, he had “failed to show that there
is a substantial likelihood that the jury would have found him
not guilty had the improper statement not been made”); Wach,
2001 UT 35, ¶ 46 (stating that, given the “totality of the evidence
against [the defendant], and the reasonable inferences therefrom,
it was not [the victim’s] improper remark . . . that caused the jury
to convict [the defendant] of aggravated kidnapping, but rather
[the victim’s] recounting of [the defendant’s]” violence in
perpetrating the crime); State v. Yalowski, 2017 UT App 177, ¶ 22,

20180646-CA 8 2020 UT App 56
State v. Dunne

404 P.3d 53 (concluding that a potentially improper statement
“did not prejudice” the defendant where the “totality of the
testimony presented” amply supported the defendant’s
conviction); State v. Milligan, 2012 UT App 47, ¶¶ 8–9, 287 P.3d 1
(concluding that an improper statement about the defendant’s
tattoo, while “potentially prejudicial and inflammatory,” did not
warrant a mistrial in light of the “strong evidence” presented as
to the defendant’s guilt).

¶21 Applying these principles, we conclude that the trial court
did not exceed its discretion in denying Dunne’s motion for a
mistrial. Assuming without deciding that the prosecutor’s
question about Dunne’s motive for not taking a plea in this case
was improper, Dunne has not shown that the court’s denial of
his mistrial motion was “plainly wrong” in that the question “so
likely influenced the jury” that Dunne “cannot be said to have
had a fair trial.” See Allen, 2005 UT 11, ¶ 39 (cleaned up). Rather,
given the totality of the evidence against him and the context in
which the allegedly improper question occurred, the court was
within its discretion to conclude that the plea-negotiation
reference did not affect Dunne’s right to a fair trial. See
Butterfield, 2001 UT 59, ¶ 47; Wach, 2001 UT 35, ¶ 45; Duran, 2011
UT App 254, ¶ 33.

¶22 Here, the evidence against Dunne was overwhelming. See
Wach, 2001 UT 35, ¶ 46; Yalowski, 2017 UT App 177, ¶¶ 21–22;
Milligan, 2012 UT App 47, ¶¶ 8–9. The jury heard evidence from
Greeter and Associate, whose combined testimonies reinforced
each other in providing the jury a basis to conclude that Dunne
exited the store without paying for the diapers and the
humidifier. Additionally, during Associate’s testimony, the jury
viewed numerous segments of the store’s video surveillance that
not only confirmed the key aspects of Greeter’s testimony about
his encounter with Dunne but also gave the jury visual evidence
that Dunne failed to check out at any register and pay for the
items in his cart before exiting the store. Finally, the jury also

20180646-CA 9 2020 UT App 56
State v. Dunne

heard Friend’s testimony that he and Dunne went to the store on
the night in question with the specific intent to steal and that
Dunne had, in fact, stolen the diapers and the humidifier.

¶23 Additionally, the context in which the allegedly improper
question occurred negates the likelihood that it influenced the
jury’s decision to convict. See Allen, 2005 UT 11, ¶¶ 40–44;
Yalowski, 2017 UT App 177, ¶¶ 18–20. As the court recognized,
the plea-negotiation reference was made by the State through a
question that Dunne did not substantively answer. In response
to the State’s question about the reasons for his failure to plead
guilty in this case (as opposed to previous cases), Dunne
proceeded no further than stating, “No, I—no, I,” before defense
counsel objected.

¶24 Moreover, the court immediately sustained Dunne’s
objection, and no further reference was made to the plea
negotiations in this case. See Allen, 2005 UT 11, ¶ 43 (explaining
that a reference did not require mistrial where, among other
things, “no further attention was directed” to the subject of the
statement or the statement itself); Duran, 2011 UT App 254, ¶ 36
(noting, as evidence that a statement did not improperly
influence the jury so as to require mistrial, that the “prosecutor
did not follow up on the volunteered information with questions
. . . or do anything else to call further attention to [the] issue”
raised by the statement). Thus, even if the State sought through
its question to elicit testimony from Dunne about the failed plea
negotiations, due to counsel’s intervention and the court’s
immediate resolution of the issue, the jury did not actually hear
any such testimony.

¶25 In sum, given the strong evidence of guilt and the
circumstances surrounding the prosecution’s question, we
cannot agree that the jury was “so likely influenced” by the
reference to the plea negotiations in the State’s question that the
court was “plainly wrong” to deny Dunne’s mistrial motion. See

20180646-CA 10 2020 UT App 56
State v. Dunne

Wach, 2001 UT 35, ¶¶ 45–46 (cleaned up); see also Milligan, 2012
UT App 47, ¶¶ 8–9. Rather, we agree with the trial court that the
suggestion about Dunne’s guilt posed by the State’s
plea-negotiation question did not rise to a level requiring a
mistrial. Accordingly, we conclude that the trial court did not
exceed its discretion by denying Dunne’s motion for a mistrial.

CONCLUSION

¶26 We affirm. Under the circumstances in this case, the trial
court was within its discretion to conclude that the State’s
attempt to elicit testimony from Dunne about the failed plea
negotiations did not require declaring a mistrial.

20180646-CA 11 2020 UT App 56