State v. Allen

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IN THE SUPREME COURT OF THE STATE OF UTAH
----00000----
State of Utah,
Plaintiff and Appellee,

V.

Paul Christopher Allen,
Defendant and Appellant.
No. 20000531

FILE D
February 11, 2005

2005 UT il

Second District, Farmington
The Honorable Glen R. Dawson
Attorneys: Mark L. Shurtleff, Att'y Gen., Kenneth

A. Bronston, Asst. Att'y Gen., Salt Lake City,
and William K. McGuire, Farmington, for plaintiff

Todd A. Utzinger, Scott L. Wiggins, Salt Lake
City,for defendant
---
DURRANT, Justice:
¶1 Defendant Paul Christopher Allen appeals
his conviction for aggravated murder. He argues
that numerous prejudicial errors occurred during
the course of his trial and requests that this
court reverse his conviction. We affirm.
BACKGROUND
¶2 "On appeal from a jury verdict, we view the
evidence and all reasonable inferences in a light
most favorable to that verdict and recite the
facts accordingly." State v. Gordon, 913 P.2d
350, 351 (Utah 1996).
¶3 On the evening of August 28, 1996, police
were called to Allen's North Salt Lake City
apartment, where they discovered Allen and the
lifeless body of Allen's wife, Jill, lying on the
hallway floor. Blood spatter covered the walls
near Jill's body, and the carpet beneath her was
soaked with blood. Jill's belt was broken and her
clothing was pushed back, exposing her body from
neck to ankles. The contents of her purse had
been dumped out and scattered across the kitchen
counter. A baseball bat lay in the doorway of a
nearby bedroom.
¶4 Although the evidence at the scene
indicated that there had been a struggle, there
was no sign of forced entry through any of the

apartment's doors or windows. A forensic
pathologist later certified Jill's cause of death
as the result of strangulation and blunt force
trauma to the head. Despite indications that
would suggest otherwise, the pathologist
determined that there was no evidence of sexual
assault.
¶5 Sergeant John Herndon, the lead
investigator on the case, pursued several leads
in the months following Jill's murder without
success before Brandon Nicholsen came forward
with information about the homicide. Nicholsen
informed Sergeant Herndon that he, Nicholsen, had
helped a coworker, George Anthony Taylor, dispose
of evidence related to the murder of a woman in
North Salt Lake.
¶6 In exchange for immunity for his part in
the crime, Nicholsen recounted that three weeks
before Jill's murder, Taylor had told him that
he, Taylor, and another man, Joseph Wright, had
been hired by a "Paul" to kill Paul's wife, and
that Taylor would receive between $5,000 and
$10,000 for his part in the murder. When
Nicholsen confronted Taylor about his involvement
after hearing a television report about Jill's
murder, Taylor admitted to the killing. Taylor
told Nicholsen that he entered Jill's home with a
key provided by Allen. When the gun he had
intended to shoot her with misfired, Taylor
explained that he struck Jill in the head first
with the gun and later with a baseball bat before
he finally strangled her to death. Taylor later
admitted that he had emptied the contents of

Jill's purse and staged her body to make it look
like a robbery and a sexual assault.
¶7 Following Nicholsen's disclosures, police
arrested Taylor for Jill's murder. When Taylor
confessed to his part in the murder and
implicated Wright, police also arrested Wright.
¶8 Wright confessed to police that Allen had
first approached him near the end of 1995 and
indicated that he, Allen, knew someone at his
work who wanted "a guy" killed for $10,000. When
Allen asked if Wright was interested, Wright told
Allen that he would "see what [he] could do."
Sometime later, Allen told Wright specifically
that he was having problems in his marriage and
that he wanted his wife, Jill, killed. Allen
stated that he would pay Wright $30,000 out of
Jill's $50,000 life insurance policy for the
murder. Wright agreed to the proposal, and the
two thereafter discussed various methods of
committing the murder and finding someone to do
the job. In April 1996, Taylor agreed to murder
Jill.
¶9 Wright testified that, to facilitate the
murder, Allen paid Wright in cash at various
times before and after the killing in an amount
totaling between $14,000 and $16,000. Wright
stated that Allen promised to pay the balance
owing to Wright when Allen's negotiations with
the insurance company were resolved.
¶10 Following the police investigation, the
State charged Allen with aggravated murder,
conspiracy to commit aggravated murder, and

criminal solicitation in connection with Jill's
murder.(1) A jury found Allen guilty of aggravated
murder at the conclusion of Allen's trial, and
Allen was sentenced to life with the possibility
of parole.
¶11 On appeal, Allen identifies numerous
errors that he alleges occurred during his trial.
Specifically, he raises six issues that,
according to Allen, warrant reversal of his
conviction. Because several of these issues are
inadequately briefed, however, we address only
whether the district court abused its discretion
in (1) allowing the State to introduce evidence
under Utah Rule of Evidence 404(b) that Allen had
made fraudulent credit card purchases, (2)
refusing to grant a mistrial after Wright
testified that Allen had been asked by the police
to take a lie detector test, and (3) refusing to
grant a new trial based on juror misconduct.(2) We
have jurisdiction pursuant to Utah Code section
78-2-2(3)(i) (2002).
ANALYSIS
I. UTAH RULE OF EVIDENCE 404(b)
¶12 We first examine Allen's contention that
the district court abused its discretion under
Utah Rule of Evidence 404(b) when it admitted
evidence showing that Allen had made fraudulent
credit card purchases both preceding and
following his wife's murder.
¶13 During Allen's trial, the State was
allowed to introduce evidence that, while

employed as an AT&T sales representative, Allen
misappropriated confidential credit information
from at least two of his clients and used this
information to fraudulently obtain credit cards
and purchase several personal items from various
retailers, including JC Penney, Pro Golf, Uintah
Golf, and the Bombay Company.(3) Wright also
testified that Allen had told him that he, Allen,
was using stolen credit cards from his AT&T
clients to make purchases at several different
locations in order to account for the
discretionary income he was using to pay Wright.
¶14 Allen argues that the district court
abused its discretion under Utah Rule of Evidence
404(b) when it permitted the State to introduce
evidence of Allen's fraudulent purchases. The
State counters that the district court did not
abuse its discretion for two reasons. First, it
asserts that the evidence of Allen's fraudulent
purchases does not implicate rule 404(b) since it
was introduced not as evidence of "other crimes,
wrongs, or acts," Utah R. Evid. 404(b) (emphasis
added), but as an act committed directly in
furtherance of the charged conspiracy. In support
of this assertion, the State cites several
federal cases in which courts have concluded that
rule 404(b) of the Federal Rules of Evidence
applies only "to evidence of acts extrinsic to
the crime charged." United States v. Green, 175
F.3d 822, 831 (10th Cir. 1999) (internal
quotations omitted); accord, e.g., United States
v. Alexander, 331 F.3d 116, 125 (D.C. Cir. 2003)
("Rule 404(b) applies only to 'extrinsic'
evidence of other crimes and not to 'intrinsic'
evidence of the same crime."); United States v.

Abrego, 141 F.3d 142, 175 (5th Cir. 1998) ("
[E]vidence of acts committed pursuant to a
conspiracy and offered to prove the defendant's
membership or participation in the conspiracy are
not extrinsic evidence, i.e., evidence of 'other'
acts, for purposes of Rule 404(b)." (internal
quotations omitted)). Alternatively, the State
argues that the district court did not abuse its
discretion because the evidence of Allen's
fraudulent purchases satisfies the requirements
of Utah Rule of Evidence 404(b).
¶15 We need not consider whether the evidence
of Allen's fraudulent purchases was admissible as
"intrinsic evidence" under a federal analysis
because we conclude that it was admissible under
a traditional Utah Rule of Evidence 404(b)
analysis. When examining a district court's
decision to admit evidence under Utah Rule of
Evidence 404(b), we review for an abuse of
discretion. State v. Nelson-Waggoner, 2000 UT 59,
¶ 16, 6 P.3d 1120. In so doing, "[w]e review the
record to determine whether the admission of
other bad acts evidence was scrupulously examined
by the [district] judge in the proper exercise of
that discretion." Id. (internal quotations
omitted).
¶16 Utah Rule of Evidence 404(b)provides that
[e]vidence of other crimes, wrongs or
acts is not admissible to prove the
character of a person in order to show
action in conformity therewith. It may,
however, be admissible for other
purposes, such as proof of motive,

opportunity, intent, preparation, plan,
knowledge, identity, or absence of
mistake or accident . . . .
Utah R. Evid. 404(b). We have held that rule
404(b) allows for the introduction of bad acts
evidence if the evidence satisfies the following
three criteria: (1) the evidence is offered for a
proper, noncharacter purpose, such as one of
those listed in rule 404(b); (2) the evidence
meets the requirements of rule 402; and (3) the
evidence meets the requirements of rule 403.
Nelson-Waggoner, 2000 UT 59 at ¶¶ 18-20 (citing
State v. Decorso, 1999 UT 57, ¶¶ 21-22, 29, 993
P.2d 837). We examine each of these criteria in
turn.
A. Proper, Noncharacter Purpose
¶17 Under the first part of a rule 404(b)
analysis, a court must make an initial
determination as to whether the bad acts evidence
is being offered for a proper, noncharacter
purpose. Id. at ¶ 18. Rule 404(b) lists several
purposes for which evidence of other crimes,
wrongs, or acts may be admitted, "such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake
or accident." Utah R. Evid. 404(b). This list is
not exhaustive, however, and evidence
demonstrating other purposes is not precluded so
long as the evidence is offered for a legitimate
purpose other than to show the defendant's
propensity to commit the crime charged. See State
v. S.H., 2002 UT 118, ¶¶ 27-28, 62 P.3d

444; State v. Fedorowicz, 2002 UT 67, ¶¶ 26-27,
52 P.3d 1194.
¶18 Here, the district court found that if the
evidence of Allen's fraudulent purchases came in
as the State anticipated, "the evidence would be
relevant for an appropriate purpose and non-
character purpose; that is, intent, preparation,
plan and knowledge." The court also reasoned that
the fraudulent purchases were proper,
noncharacter evidence of the conspiracy with
which Allen was charged. We reject Allen's
assertion that the district court abused its
discretion in concluding that the fraudulent
purchase evidence was admissible for these proper
and noncharacter purposes.
¶19 First, it is evident that the State
introduced the fraudulent purchases not to show
that Allen had a propensity to commit crime, but
rather, to establish that Allen had engaged in a
conspiracy to murder his wife and that he had
employed Wright as a middleman in order to
facilitate this action. The fraudulent purchases
were direct evidence of acts Allen committed in
furtherance of the conspiracy and demonstrated
the means by which Allen sought to conceal his
payments to Wright.(4)
¶20 Additionally, the evidence regarding
Allen's fraudulent transfers was also admitted
for the proper, noncharacter purposes of proving
preparation, plan, intent, and knowledge. This
evidence demonstrated how Allen planned to
account for his own discretionary spending and
thereby disguise his payments to Wright. It also

was connected with the advance payments Allen
made to Wright in preparation for the murder, and
illustrated that Allen knowingly engaged in the
conspiracy with the intent to murder his wife.
¶21 Because the State introduced evidence of
Allen's fraudulent purchases for these legitimate
reasons and not simply to show that Allen had a
propensity to commit crime, the district court
did not abuse its discretion in concluding that
the State's evidence was introduced for a proper,
noncharacter purpose under rule 404(b).
B. Relevance Under Rule 402
¶22 Even if evidence is offered for a proper,
noncharacter purpose, a court must also determine
whether the evidence is relevant under Utah Rule
of Evidence 402. Nelson-Waggoner, 2000 UT 59 at ¶
19. Relevant evidence is defined as "evidence
having any tendency to make the existence of any
fact that is of consequence to the determination
of the action more probable or less probable than
it would be without the evidence." Utah R. Evid.
401.
¶23 Here, the district court did not abuse its
discretion in determining that the evidence of
Allen's fraudulent purchases was relevant to the
question of whether Allen had conspired to kill
his wife. As the district court accurately
observed, the evidence of how Allen concealed his
payments to Wright corroborated Wright's account
of the events and therefore ultimately supported
the State's allegation that Allen had conspired
with Taylor and Wright to murder his wife. The

evidence of Allen's fraudulent purchases made the
existence of a conspiracy and the actions taken
in furtherance thereof more probable than if the
evidence were not admitted.
C. Probative Value Versus Prejudicial Effect
Under Rule 403
¶24 Finally, even if evidence is offered for a
proper, noncharacter purpose and is relevant, a
district court must determine whether the
probative value of the evidence "'is
substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay,
waste of time, or needless presentation of
cumulative evidence.'" Nelson-Waggoner, 2000 UT
59 at ¶ 20 (quoting Utah R. Evid. 403). In
considering whether to exclude otherwise
admissible evidence under rule 403, we have
stated that a district court should evaluate
several factors, including
the strength of the evidence as to the
commission of the other crime, the
similarities between the crimes, the
interval of time that has elapsed between
the crimes, the need for the evidence,
the efficacy of alternative proof, and
the degree to which the evidence probably
will rouse the jury to overmastering
hostility.
Decorso, 1999 UT 57 at ¶ 29 (quoting State v.
Shickles, 760 P.2d 291, 295-96 (Utah 1988)

(further citation omitted)). We hereinafter refer
to these factors as the "Shickles factors."
¶25 Allen argues that the district court
abused its discretion in allowing evidence of the
fraudulent purchases to be admitted because,
according to Allen, the record lacks "any
indication" that the district court gave "any
real consideration of the matters to be
considered in the course of performing" the
requisite balancing required by rule 403. He
argues that, without evidence that the district
court examined and considered the various
Shickles factors described above, we must
conclude that the district court erred in
allowing the State to introduce evidence of
Allen's fraudulent purchases. We disagree.
¶26 A review of the record demonstrates that
the district court carefully balanced the
probative value of the evidence against its
prejudicial effect. Although the court
acknowledged that the fraudulent purchase
evidence would connect Allen with an uncharged
wrong, it reasoned that such connection did not
render the evidence inadmissible. The court
explained that the probative value of the
fraudulent purchases as direct evidence of
Allen's participation in a conspiracy to commit
murder was significant and relevant to showing
Allen's preparation, plan, knowledge, and intent.
Moreover, the court did not find the evidence to
be particularly inflammatory or egregious.
¶27 The record also reveals that the district
court sought to minimize any confusion that

introduction of the fraudulent purchase evidence
may have caused by instructing the jury that the
evidence was "not to be considered . . . to prove
that [Allen was] a person of bad character or
that he ha[d] a disposition to commit crimes,"
but rather "only for the limited purpose of
determining if it tend[ed] to show: proof of
motive, opportunity, intent, preparation, plan,
knowledge, or absence of mistake." Additionally,
the introduction of the evidence did not cause
unnecessary delay, since the State introduced the
majority of its evidence relating to Allen's
fraudulent credit card applications and purchases
through stipulated exhibits, and all other
references made of Allen's fraudulent activities
were relatively brief.
¶28 We acknowledge that, in reaching its
conclusion that the probative value of the
fraudulent purchase evidence was not
substantially outweighed by its prejudicial
effect, the district court did not explicitly
identify the Shickles factors referenced in
Decorso. However, it is evident that the district
court relied extensively on Decorso in making all
three inquiries required by rule 404(b).
Moreover, we can find no relevant Shickles factor
that would lead us to believe the district court
abused its discretion in allowing the State to
introduce the fraudulent purchase evidence.
¶29 First, the need for the evidence was
significant. The fraudulent purchases were direct
evidence of Allen's participation in the
conspiracy and corroborated the testimony of

Wright, a key witness for the State, that Allen
had paid Wright to arrange for Jill's murder.
¶30 Second, the evidence that Allen had, in
fact, stolen personal client information and used
it to make fraudulent purchases was strong.
Police were alerted to Allen's fraudulent
activities only after Wright indicated that Allen
was disguising the payments used to facilitate
Jill's murder by using stolen credit cards to
purchase personal property from the Bombay
Company, JC Penney, Uintah Golf, and Pro Golf.
Police confirmed the veracity of this account
after an investigation revealed that someone had
fraudulently used the credit of two of Allen's
clients at these specific stores to purchase
various items in the period leading up to and
following Jill's death. Moreover, Allen made no
attempt to refute this testimony and explicitly
stipulated to the introduction of evidence
establishing his fraudulent activities during
trial.
¶31 Third, the fraudulent purchases were made
contemporaneously with the conspiracy. Although
the purchases do not correspond exactly with the
payments Allen made to Wright for Jill's murder,
(5) the fraudulent purchases, like the payments to
Wright, occurred leading up to and following the
murder.
¶32 Fourth, evidence of the fraudulent
purchases was needed to demonstrate that the
money Wright received for his participation in
the conspiracy came from Allen, not another
source. It would have been difficult for the

State to have corroborated Wright's testimony and
established this link as effectively through
alternative methods of proof.
¶33 Finally, it is unlikely that Allen's
involvement in fraudulent activities would have
roused the jury to overmastering hostility,
especially in light of the gravity of the
offenses for which he was charged. Contrary to
Allen's assertions, we do not believe a juror who
had reasonable doubt of Allen's participation in
Jill's murder would nevertheless have been more
likely to convict Allen on such a weighty charge
simply because he or she desired to punish him
for his prior, relatively minor fraudulent acts.
¶34 In sum, because the evidence of Allen's
fraudulent purchases was admitted for a proper,
noncharacter purpose, was relevant, and had
probative value that was not substantially
outweighed by its prejudicial effect, the
district court did not abuse its discretion in
allowing the State to introduce the evidence
during Allen's trial.
II. WRIGHT'S REFERENCE TO A LIE DETECTOR TEST
¶35 We next address Allen's contention that
the district court abused its discretion in
refusing to grant a mistrial after Wright made an
improper comment during the course of his
testimony.
¶36 During the State's examination of Wright,
the following exchange took place:

Q. What, if anything, did you and Paul
discuss about the nature of your
telephone conversation after Jill's
death?
A. We just made it seem--we talked about
what the investigators were coming out to
talk to me about, things like that. Paul
would reassure me that these things were
happening to all of his friends and don't
worry about it. You don't got nothing to
worry about, you haven't done anything.
They're going to continue to do this.
Things like that. He had told me that
they had asked him to come in for a lie
detector test.
(Emphasis added.) Allen allowed the State's
examination to continue briefly following this
statement before requesting a bench conference
and asking the court for an opportunity to
request a mistrial. Upon conclusion of the
State's direct examination, Allen moved for a
mistrial, arguing that the State had
inappropriately and prejudicially elicited the
lie detector reference from Wright.
¶37 The district court denied Allen's motion.
Given the context in which it was made, the court
did not find the lie detector reference to have
been intentionally elicited or planned. Because
Wright made the statement in passing and neither
party attracted attention to it, the court
concluded that the statement was "simply
innocuous" and would not prejudice the jury. The
court did offer to give a curative instruction

regarding the comment, however, which Allen
declined.
¶38 On appeal, Allen argues that Wright's
reference to a lie detector test "most likely
caused the jury to speculate about why the
results of [Allen's] polygraph examination were
not placed into evidence or discussed at trial,"
and that "[s]uch speculation logically led the
jury to conclude that he was trying to hide the
negative results of the lie detector test." He
argues that this reference prejudiced his right
to a fair trial, and that as a result the
district court abused its discretion when it
denied Allen's request for a mistrial.(6) We
disagree.
¶39 Because a district judge is in an
advantaged position to determine the impact of
courtroom events on the total proceedings, once a
district court has exercised its discretion and
denied a motion for a mistrial, 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. Wach,
2001 UT 35, ¶ 45, 24 P.3d 948. Applying this
standard in this case, we cannot conclude that
the district court abused its discretion in
refusing to grant a mistrial.
¶40 A review of our case law amply reveals
that a mistrial is not required where an improper
statement is not intentionally elicited, is made
in passing, and is relatively innocuous in light
of all the testimony presented. For example, in

State v. Butterfield, 2001 UT 59, 27 P.3d 1133,
we held that a district court did not abuse its
discretion in refusing to grant a mistrial after
a witness testified that he had obtained the
defendant's photograph from the Salt Lake County
Jail. Id. at ¶ 47. We explained that the
statement was not intentionally elicited, was
"vague" and "fleeting," and the defendant could
not point to evidence in the record suggesting
that the jury had relied on the witness's
statement. Id.
¶41 Similarly, in Wach, we held that a
district court did not abuse its discretion where
it declined to grant a mistrial after a witness
violated the parties' previous stipulation by
introducing evidence of the defendant's prior bad
acts. 2001 UT 35 at ¶¶ 44-46. We reasoned that
the statement was "not elicited by the
prosecutor," was an "isolated, off-hand remark,
buried in roughly 244 pages of testimony," and
was "not necessarily inflammatory." Id. at ¶ 46.
¶42 Finally, in State v. Decorso, 1999 UT 57,
993 P.2d 837, we concluded that a district
court's refusal to grant a mistrial after a
witness made improper references to other crimes
the defendant had committed was not an abuse of
discretion. Id. at ¶ 38. We explained that the
reference to other crimes was "vague" and "came
only after a lengthy direct examination and
lengthy cross-examination," and that the
proceedings "move[d] along without undue
interruption and directed the jury's attention to

other matters." Id. at ¶ 39; see also State v.
Griffiths, 752 P.2d 879, 881, 883 (Utah 1988)
(holding a district court did not commit
reversible error by allowing a witness to
improperly state that the defendant possessed an
outstanding warrant on another offense because
the statement was unintentionally elicited, was
"very brief" and "only made in passing," provided
no details of why the warrant was issued or to
which offense it was related, and the district
court admonished the jury to disregard the
statement); State v. Case, 547 P.2d 221, 223
(Utah 1976) (holding the district court properly
denied a defendant's motion for a mistrial after
a witness stated that the defendant had been
incarcerated in the Utah State Prison where the
statement was inadvertent, not intentionally
elicited, and neither counsel nor court made
further reference to it).
¶43 Here, the district court did not abuse its
discretion in declining to grant a mistrial for
many of the reasons articulated in the cases
described above. First, Wright's reference to a
lie detector test was not intentionally elicited
or planned. Second, the reference was vague and
mentioned only that Allen had been asked to take
a lie detector test--not that Allen had actually
taken or failed to pass such a test. Third, the
reference was brief and came only near the end of
a three-hour direct examination. Fourth, the
proceedings continued without undue interruption.
Fifth, no further attention was directed to
either a lie detector test or Wright's statement.
Finally, the district court offered to give the

jury a curative instruction regarding the lie
detector reference, which Allen declined.
¶44 Because we agree with the district court
that Wright's statement was innocuous, we
conclude that the district court did not abuse
its discretion in refusing to grant Allen's
motion for a mistrial.
III. JUROR MISCONDUCT
¶45 We turn now to the final issue Allen
raises on appeal; namely, whether the district
court abused its discretion in refusing to grant
a mistrial based on juror misconduct.
¶46 During the State's direct examination of
Camille Mauerhan, a State's witness, Mauerhan
testified that Allen had mentioned to her in a
conversation prior to his arrest that the police
refused to speak with him because he had retained
an attorney. At the conclusion of this testimony
and in open court outside of the presence of the
jury, Allen moved for a mistrial, arguing that
Mauerhan's statement that Allen had retained an
attorney was prejudicial because it implied that
Allen was guilty and had something to hide.
Although the court ordered that the statement be
stricken from the record as unresponsive and
directed the jury to disregard it as such, the
court declined to grant the mistrial.
¶47 After the jury returned a guilty verdict
and Allen was sentenced to life with the
possibility of parole, Allen filed a motion for a
new trial, alleging juror misconduct. Allen

argued that one of the jurors had learned through
her spouse that defense counsel had requested a
mistrial based on Mauerhan's testimony, and that
the juror had subsequently relayed that
information to the other jurors.
¶48 In its ruling on Allen's motion, the
district court observed that "[i]t was
inappropriate for any juror to have found out
about the motion for a mistrial and also for any
juror to have mentioned this to other members of
the jury." However, the court also found that
another juror had instructed the jury that they
could not discuss the issue of a mistrial and
that the jury did not, in fact, engage in any
discussion regarding the mistrial motion. Based
on these facts, the court concluded that Allen
was not prejudiced because there was no
reasonable likelihood of a different verdict
absent the "somewhat innocuous" conduct of the
juror. Consequently, the district court denied
Allen's motion for a new trial.
¶49 Allen argues that the district court
abused its discretion when it declined to grant
his motion for a new trial. He contends that,
instead of examining whether he was prejudiced by
the juror misconduct, the district court should
have applied the rebuttable presumption of
prejudice standard articulated by this court in
State v. Pike, 712 P.2d 277, 280 (Utah 1985). We
disagree.
¶50 "When reviewing a [district] court's
denial of a motion for a new trial, we will not
reverse absent a clear abuse of discretion by the

[district] court." State v. Colwell, 2000 UT 8, ¶
12, 994 P.2d 117 (internal quotations omitted).
"At the same time, however, we review the legal
standards applied by the [district] court in
denying the motion for correctness." State v.
Martin, 2002 UT 34, ¶ 45, 44 P.3d 805.
¶51 Allen correctly observes that when "any
unauthorized contact during a trial between
witnesses, attorneys or court personnel and
jurors . . . goes beyond a mere incidental,
unintended, and brief contact," there is a
rebuttable presumption of prejudice, and that to
counteract this presumption the prosecution must
prove that the unauthorized contact did not
influence the juror. Pike, 712 P.2d at 280
(emphasis added). However, the State also
correctly notes that this rebuttable presumption
only applies when the contact is between a juror
and other court participants, not jurors and
third parties unrelated to the proceedings.
Compare id. at 279-80 (applying a rebuttable
presumption of prejudice where the contact was
between a juror and a witness); State v.
Erickson, 749 P.2d 620, 620-21 (Utah 1987)
(same); State v. Anderson, 237 P. 941, 942-44
(Utah 1925) (same); Logan City v. Carlsen, 799
P.2d 224, 225-26 (Utah Ct. App. 1990) (applying a
rebuttable presumption of prejudice where the
contact was between a juror and the court
bailiff), with Arellano v. W. Pac. R.R. Co., 298
P.2d 527, 529-30 (Utah 1956) (explaining that
jurors are presumed to have conducted themselves
properly throughout the trial and illustrating
that when an alleged contact occurs between a
juror and a non-court participant, the defendant

must prove that the misconduct prejudiced the
defendant); State v. Tenney, 913 P.2d 750, 756-58
(Utah Ct. App. 1996) (holding that no rebuttable
presumption of prejudice attached where a juror
briefly discussed the case with a coworker
because "there was no impermissible contact
between a juror and a witness, party, or court
personnel"--only contact "between a juror and an
outsider under circumstances unrelated to the
proceedings"); see also State v. Cardall, 1999 UT
51, ¶¶ 12, 21, 982 P.2d 79 (explaining that no
presumption of prejudice arose where a young
witness and her mother embraced on the witness
stand at the conclusion of the witness's
testimony because no conversation occurred
between the witness and the jurors).
¶52 In his reply brief, Allen concedes that
the Pike rebuttable presumption standard applies
only when the contact involves a juror and a
court participant. However, he argues that the
contact in this case was, for all intents and
purposes, between a juror and other court
participants--namely, the juror who obtained the
outside information, Allen's defense counsel, and
Mauerhan, the State's witness. He asserts that, "
[a]lthough press reports and spouses were the
mediums through which the information traveled,
the contact substantially amounted to improper
contact between the juror, a witness, and
counsel." This argument is without merit.
¶53 Mauerhan and Allen's defense counsel were
obviously directly involved in the events that
ultimately caused the press to report on Allen's
request for a mistrial. However, it is clear that

the only unauthorized "contact" that occurred in
this case was between a juror and her spouse.
Because the misconduct did not involve contact
between a juror and court personnel, the district
court applied the correct legal standard.
Therefore, we need only determine whether the
court abused its discretion in denying Allen's
motion for a new trial.
¶54 We conclude that the district court did
not abuse its discretion. The juror's comment was
apparently brief and contained no substantive
information concerning the mistrial motion.
Additionally, the jury did not, in fact, discuss
Allen's motion for a mistrial. The district court
did not abuse its discretion in concluding that,
under these circumstances, Allen was not
prejudiced by the inappropriate juror contact.
CONCLUSION
¶55 We reject Allen's assertion that any error
occurred during the course of his trial that
warrants a reversal of his conviction. First, the
district court did not abuse its discretion under
Utah Rule of Evidence 404(b) by allowing the
State to introduce evidence showing that Allen
had used stolen client information to
fraudulently obtain credit and purchase various
items of personal property both before and after
Jill's murder. Because the evidence was direct
evidence of the conspiracy and illustrated
Allen's preparation, plan, knowledge, and intent,
it was admitted for a proper, noncharacter
purpose. Additionally, the evidence was relevant,
and the court acted within its discretion in

concluding that the probative value of the
evidence was not substantially outweighed by its
prejudicial effect.
¶56 Second, the district court did not abuse
its discretion in refusing to grant a mistrial
after Wright testified that Allen had been asked
to take a lie detector test. The improper
reference was not intentionally elicited or
planned, was vague in its substance, and came
only near the end of a lengthy direct
examination. Moreover, following the reference,
the proceedings continued without undue
interruption, no further attention was directed
to either a lie detector test or Wright's
statement, and the court offered to give a
curative instruction to the jury, which Allen
declined.
¶57 Finally, the district court did not abuse
its discretion in refusing to grant a new trial
after discovering that a juror had improperly
learned through her spouse about a defense
mistrial motion. Because the unauthorized contact
was between a juror and a person unconnected to
the proceedings, the district court correctly
evaluated Allen's new trial motion in terms of
whether Allen had been prejudiced by the
misconduct. Further, because the improperly
obtained information contained nothing
substantive about the mistrial motion and the
jury did not consider the information when making
its decision, the district court acted within its
discretion in determining that a new trial was
not warranted. Affirmed.

---
¶58 Chief Justice Durham, Associate Chief
Justice Wilkins, Justice Parrish, and Justice
Nehring concur in Justice Durrant's opinion.
1. The State also charged Allen with filing a
false or fraudulent insurance claim, which was
later dismissed.
2. Because they are inadequately briefed, we do
not address the remaining issues raised by Allen
on appeal relating to (1) the district court's
refusal to grant a mistrial after a witness
testified that Allen had retained an attorney
prior to his arrest, (2) the district court's
reasonable doubt jury instruction, and (3)
cumulative error. See, e.g., Smith v. Four
Corners Mental Health Ctr., Inc., 2003 UT 23, ¶
46, 70 P.3d 904 (declining to address an
inadequately briefed argument).
3. Specifically, the State introduced various
fraudulent applications for store credit and
receipts evidencing Allen's fraudulent purchases,
which included, among others items, golf clubs
and various golf accessories, a king-size bed,
and several hundred dollars worth of bedding. The
State also introduced phone records showing that
Allen had used his cellular phone to place calls
to the Bombay Company where one of the fraudulent
purchases was made.
4. Allen repeatedly argues that the State has
failed to establish "any connection" between
Allen's fraudulent purchases and his conspiracy

to murder Jill. This is incorrect. Wright clearly
testified during trial that Allen had represented
to Wright that he, Allen, was using his clients'
stolen information to make fraudulent purchases
from various stores in order to account for the
money he was paying to Wright. Wright's testimony
therefore directly linked Allen's fraudulent
purchases to the conspiracy.
5. Allen argues that because the cash payments
and dates on which they were made to Wright do
not directly correspond "line by line" to the
dates upon and the amounts in which the
fraudulent purchases were made, the purchases
provide no proof of Allen's role in the
conspiracy to commit the murder. We disagree. The
State did not need to establish such an exacting
correlation for a jury to reasonably conclude
that the fraudulent purchases made before and
after Jill's death were connected to the payments
Allen made to Wright.
6. Allen also suggests that Wright's statement
was exacerbated by prosecutorial misconduct. He
asserts that the prosecutor was aware of Wright's
potential testimony but nevertheless improperly
allowed Wright to make reference to the lie
detector test, "which, in turn, allowed the jury
to abdicate its all-important and difficult truth
finding function." Because Allen has failed to
provide relevant authority supporting his
assertion that conduct such as this constitutes
prosecutorial misconduct warranting a new trial,
we decline to address the issue. See Smith v.
Four Corners Mental Health Ctr., Inc., 2003 UT

23, FT 46, 70 P.3d 904 (declining to address an
inadequately briefed argument).