State v. York , 427 P.3d 371 ( 2018 )

2018 UT App 90THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
TERELL LYNN YORK,
Appellant.
Opinion
No. 20160569-CA
Filed May 17, 2018
Second District Court, Ogden Department
The Honorable Mark R. DeCaria
No. 151901944
Samuel P. Newton, Cherise M. Bacalski, and Emily
Adams, Attorneys for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN and KATE A. TOOMEY concurred.
POHLMAN, Judge:
¶1 Terell Lynn York appeals her conviction of one count of
obstruction of justice, a third degree felony. She contends that
the trial court and the State committed errors related to the
impeachment of the key defense witness. We affirm.
State v. York
BACKGROUND 1
Events at the Campsite
¶2 York, her boyfriend (Boyfriend), and a female friend were
camping in a small camper trailer at a campground in Weber
County. On the day the group was due to check out, the
campsite’s manager inquired whether they would be staying or
leaving. The group informed the manager that they intended to
leave. However, that evening, the manager observed that they
had not packed up their campsite or departed. The manager
called the police.
¶3 Two officers from the Ogden police department
responded. When they arrived, Boyfriend did not appear to be at
the campsite. One of the officers, Officer Bryner, approached
York and her female friend and asked them to leave. The women
began to pack their belongings and load them into the camping
trailer, leaning inside its doorway multiple times. The manager
informed the officers that Boyfriend had been part of the group
and that he believed Boyfriend was inside the trailer. When
Officer Bryner walked back to his patrol car and ran York’s
information on his computer, he “found a link” between York
and Boyfriend, and he showed the manager a photograph of
Boyfriend to verify it was the same man the manager had
observed. During the records search, he also discovered that
Boyfriend had an outstanding felony arrest warrant. During this
time, Officer Bryner had a clear view of the trailer’s door and
kept his eye on the scene.
¶4 Once he discovered the warrant and Boyfriend’s
connection to York, Officer Bryner returned to York and asked if
1. “On appeal from a criminal conviction, we recite the facts
from the record in the light most favorable to the jury’s verdict.”
State v. Wilkinson, 2017 UT App 204, ¶ 2 n.1, 407 P.3d 1045(quotation simplified).
20160569-CA 2 2018 UT App 90State v. York
she knew Boyfriend’s whereabouts. York responded that while
Boyfriend had been “down by the river just a few minutes
prior,” she did not know where he was. Officer Bryner asked if
Boyfriend was inside the trailer, and York said, “No, he’s not.”
Officer Bryner then informed York of the active warrant for
Boyfriend’s arrest and asked her again whether Boyfriend was
inside the trailer. Again, York responded that he was not.
Finally, Officer Bryner asked York for permission to look inside
the trailer, but York told him it was not her trailer and she could
not give permission to search it.
¶5 Immediately after that exchange, Officer Bryner obtained
from York’s friend permission to search the trailer. When Officer
Bryner and the other responding officer, Officer Taylor, looked
into the trailer, they saw Boyfriend lying on the bed with his feet
right at the door due to the small size of the trailer. Both officers
described their view of Boyfriend as completely unobstructed
and noted that they could see Boyfriend’s entire body from the
trailer’s doorway.
¶6 Officer Bryner arrested Boyfriend. He also arrested York
for obstruction because she “had lied and helped conceal
[Boyfriend] during [the] investigation.” Officer Taylor
transported York to jail. During transport, York yelled at Officer
Taylor that “she didn’t give permission to [Boyfriend] to be in
the trailer,” that “she wasn’t helping him hide in the trailer,” and
that she “didn’t open the door for him. He was there the whole
time.”
Boyfriend’s Testimony at Trial
¶7 The State charged York with obstruction of justice, and
York’s case proceeded to trial. Boyfriend was the sole witness for
the defense. Boyfriend testified that, on the evening in question,
he had been near the river and observed the police talking to
York and her friend as he approached the campsite. He stated
that he snuck into the trailer when the officer talking to York and
York’s friend walked back to the patrol vehicle and that he did
this to hide from the police because of the warrant for his arrest.
20160569-CA 3 2018 UT App 90State v. York
Boyfriend claimed he could not see York when he snuck into the
trailer, thereby suggesting that she did not see him at that time.
He testified that he was in the trailer approximately three to five
minutes before he was discovered.
¶8 During cross-examination, the State questioned Boyfriend
about two previous convictions. First, the State questioned
Boyfriend about a 2010 conviction of tampering with evidence.
Boyfriend admitted he had been convicted of that crime. Defense
counsel did not immediately object, but subsequently argued
that the conviction was inadmissible under rule 609 of the Utah
Rules of Evidence, contending that it was not a crime of
dishonesty. Defense counsel also brought to the court’s attention
that the conviction had been reduced from a felony to a class A
misdemeanor upon Boyfriend’s graduation from drug court.
¶9 On the overall issue of whether the tampering with
evidence conviction could be used to impeach Boyfriend, the
court determined that, even as a class A misdemeanor, the
conviction was admissible for that purpose. In particular, the
court concluded that the conviction was a dishonest act under
rule 609(a)(2). After it ruled, the court asked the parties how they
intended to present the conviction to the jury. Defense counsel
suggested that the parties could stipulate that the conviction was
a class A misdemeanor, and the State agreed. Defense counsel
also indicated that he preferred the State to notify the jury of the
stipulation.
¶10 The State subsequently advised the jury that the parties
had “stipulated to information” about Boyfriend’s conviction for
tampering with evidence and that, although he was convicted of
a third degree felony, the conviction was reduced to a class A
misdemeanor. Defense counsel objected that the State misstated
the stipulation. The court recognized that the stipulation was
that Boyfriend had been “convicted of a misdemeanor,
ultimately,” and determined that it would allow the evidence. In
doing so, the court noted that the conviction was “only being
allowed in as impeachment” of Boyfriend and that “it has no
implication directly or indirectly on [York].”
20160569-CA 4 2018 UT App 90State v. York
¶11 Second, the State questioned Boyfriend about one other
alleged conviction—giving false information to a police officer in
2006. During cross-examination, Boyfriend stated that he had
been charged with that offense but denied that he had been
convicted. When the State attempted to produce a “rap sheet,”
defense counsel objected, and the court sustained the objection.
The next day, the State supplied the court with a document from
the South Ogden Justice Court allegedly establishing that
Boyfriend had been convicted of the crime. Defense counsel
objected, asserting that it was not a judgment of conviction
because it looked more like a minute entry, the judge had not
signed the document as to the conviction, and the only court
signature on the document was as to its later authentication. The
court concluded, over defense counsel’s objection, that the
document represented a judgment of conviction.
¶12 Finally, the State questioned Boyfriend about his
relationship with York. Boyfriend testified that York was his
girlfriend and agreed that he “wouldn’t want her to get in
trouble.”
¶13 The jury convicted York, and she appeals.
ISSUES AND STANDARDS OF REVIEW
¶14 York argues that the trial court erred in allowing the State
to impeach a defense witness with what she characterizes as
“two inadmissible convictions” and that the admission of those
convictions prejudiced her case. “[W]e grant a trial court broad
discretion to admit or exclude evidence and will disturb its
ruling only for abuse of discretion.” Daines v. Vincent, 2008 UT
51, ¶ 21, 190 P.3d 1269. “Our review of the trial court’s exercise
of its discretion includes ensuring that no mistakes of law
affected a lower court’s use of its discretion.” Robinson v. Taylor,
2015 UT 69, ¶ 8, 356 P.3d 1230 (quotation simplified).
¶15 York also argues that the State improperly informed the
jury that one of the convictions “was charged as a felony, when
20160569-CA 5 2018 UT App 90State v. York
it only was a misdemeanor conviction.” We review claims of
prosecutorial misconduct for an abuse of discretion. State v. Kohl,
2000 UT 35, ¶ 22, 999 P.2d 7.
ANALYSIS
I. Impeachment Evidence
¶16 York argues that the trial court erred in admitting
evidence under rule 609(a)(2) of the Utah Rules of Evidence that
Boyfriend previously had been convicted of two offenses. York
asserts that Boyfriend’s first conviction—tampering with
evidence under Utah Code section 76-8-510.5—“is not an
inherently dishonest act” as required for admissibility under rule
609(a)(2). And she asserts that the evidence provided by the
State to prove Boyfriend’s second conviction—false information
to a police officer under Utah Code section 76-8-506—was
insufficient to establish that Boyfriend had actually been
convicted of that crime. We address each contention below.
A. Tampering with Evidence
¶17 York argues that Boyfriend’s tampering with evidence
conviction “was not a crime of dishonesty” as required for
admissibility by rule 609(a)(2) of the Utah Rules of Evidence. We
disagree.
¶18 Rule 609(a)(2) provides that “for any crime regardless of
the punishment, the evidence must be admitted if the court can
readily determine that establishing the elements of the crime
required proving—or the witness’s admitting—a dishonest act
or false statement.” 2 Utah R. Evid. 609(a)(2). “The focus of rule
2. Neither party contends that Boyfriend’s tampering with
evidence conviction resulted from a false statement. As a result,
we confine our analysis to whether Boyfriend’s conduct
constituted a dishonest act.
20160569-CA 6 2018 UT App 90State v. York
609(a)(2) concerns impeachment based on the probability that a
particular witness may not be telling the truth as evidenced by
prior acts of dishonesty on the part of that witness.” Zappe v.
Bullock, 2014 UT App 250, ¶ 14, 338 P.3d 242 (quotation
simplified); see also United States v. Smith, 551 F.2d 348, 363, 365
(D.C. Cir. 1976) (explaining that Federal Rule of Evidence
609(a)(2), which is identical to Utah’s rule 609(a)(2), provides for
the automatic admission of “crimes characterized by an element
of deceit or deliberate interference with a court’s ascertainment
of truth”); 3 State v. Bruce, 779 P.2d 646, 655–56 (Utah 1989)
(describing the types of crimes covered by rule 609(a)(2) as those
having a “credibility-deteriorating quality”).
¶19 Because of the rule’s specific and limited purpose, our
supreme court has stated that the phrase “dishonest act or false
statement” in rule 609(a)(2) only “applies to a narrow subset of
criminal convictions”—crimes “in the nature of crimen falsi” that
have “some element of untruthfulness, deceit, or falsification.”
Robinson v. Taylor, 2015 UT 69, ¶¶ 24–25, 356 P.3d 1230(quotation simplified); see also Fed. R. Evid. 609 advisory
committee notes to 2006 amendments (explaining that
“dishonesty and false statement” included offenses “in the
nature of crimen falsi, the commission of which involves some
element of deceit, untruthfulness, or falsification bearing on the
witness’s propensity to testify truthfully,” and that
“[h]istorically, offenses classified as crimina falsi have included
only those crimes in which the ultimate criminal act was itself an
act of deceit” (quotation simplified)). And, in Robinson, our
3. “Utah appellate courts have looked to federal cases in
interpreting Rule 609 as the Utah and federal rules are identical.”
State v. Tucker, 800 P.2d 819, 822 (Utah Ct. App. 1990); see also
Utah R. Evid. 609 advisory committee note (explaining that
rule 609 “is the federal rule, verbatim”); Robinson v. Taylor, 2015
UT 69, ¶ 25, 356 P.3d 1230 (looking to federal law to interpret the
phrase “dishonest act or false statement” in Utah’s rule
609(a)(2)).
20160569-CA 7 2018 UT App 90State v. York
supreme court clarified that “it is the elements of the criminal act
that determine [the conviction’s] admissibility [under rule
609(a)(2)], not the manner in which the offense is committed.”
2015 UT 69, ¶ 25. Thus, a crime must “include elements of a
dishonest act or false statement as part of the statutory offense”
for the prior conviction to be admissible under rule 609(a)(2). See
id. ¶ 26; see also Utah R. Evid. 609(a)(2) (explaining that the
evidence of the previous crime “must be admitted if the court
can readily determine that establishing the elements of the crime
required proving” a dishonest act (emphasis added)).
¶20 Here, Boyfriend was previously convicted of tampering
with evidence under Utah Code section 76-8-510.5(2). That
section provides,
A person is guilty of tampering with evidence if,
believing that an official proceeding or
investigation is pending or about to be instituted,
or with the intent to prevent an official proceeding
or investigation or to prevent the production of any
thing or item which reasonably would be
anticipated to be evidence in the official
proceeding or investigation, the person knowingly
or intentionally: (a) alters, destroys, conceals, or
removes any thing or item with the purpose of
impairing the veracity or availability of the thing or
item in the proceeding or investigation . . . .
Utah Code Ann. § 76-8-510.5(2) (LexisNexis 2017).
¶21 In our view, this crime requires the State to prove that the
offender committed an act “of untruthfulness, deceit, or
falsification”—in other words, a dishonest act. See Robinson,
2015 UT 69, ¶¶ 24–25 (quotation simplified). Acts of deception or
falsification are affirmative actions intended to mislead
others from the truth. See Deception, Black’s Law Dictionary (10th
ed. 2014) (“The act of deliberately causing someone to believe
that something is true when the actor knows it to be false.”);
20160569-CA 8 2018 UT App 90State v. York
Falsify, Black’s Law Dictionary (10th ed. 2014) (“To make
deceptive; to counterfeit, forge, or misrepresent; esp., to tamper
with (a document, record, etc.) by interlineation, obliteration, or
some other means[.]”); Deceive, Merriam-Webster.com,
https://www.merriam-webster.com/dictionary/deceive (last
visited May 14, 2018) (“[T]o cause to accept as true or valid
what is false or invalid,” or “to make someone believe
something that is not true”); Falsify, Dictionary.com,
http://www.dictionary.com/browse/falsification (last visited May
14, 2018) (“[T]o make false or incorrect, especially so as to
deceive.”).
¶22 To prove that a person has tampered with evidence, the
State must demonstrate beyond a reasonable doubt that, with
requisite belief or intent as to the investigation, the person
knowingly or intentionally altered, destroyed, concealed, or
removed an item germane to an investigation for the express
purpose of misleading investigators as to the status—either
veracity or availability—of that particular item. Utah Code Ann.
§ 76-8-510.5. 4 A person committing this offense therefore
4. We note that Utah Code section 76-8-510.5 appears in
Chapter 8 of the Utah Criminal Code, titled “Offenses Against
the Administration of Government,” and in Part 5 of that
chapter, which is titled, “Falsification in Official Matters.”
Further, the tampering with evidence section appears alongside
other crimes that impose criminal liability on a person for taking
affirmative actions to interfere in the truth-finding process, such
as making a false or inconsistent material statement under oath,
Utah Code Ann. § 76-8-502 (LexisNexis 2017); making a written
false statement in an official proceeding, id. § 76-8-504; making a
false statement in a preliminary hearing, id. § 76-8-504.5;
providing false or misleading material information, id. § 76-8-
504.6; providing false information to law enforcement officers,
government agencies, or certain specified professionals, id. § 76-
8-506; providing false personal information to a peace officer, id.
§ 76-8-507; tampering with a witness, id. § 76-8-508; tampering
(continued…)
20160569-CA 9 2018 UT App 90State v. York
commits a quintessentially dishonest act; any of the specific
actions taken by a perpetrator of this crime—altering,
destroying, concealing, or removing an item—are done with the
goal to deceive investigators about a statutorily salient aspect of
the item itself. See Robinson, 2015 UT 69, ¶¶ 24–25; see also United
States v. Lockwood, No. 12-CR-20070, 2013 WL 3964779, at *2 (C.D.
Ill. July 31, 2013) (concluding that obstruction of justice—
defined under state law as implicating a person who, “with
intent to prevent the apprehension or obstruct the prosecution or
defense of any person, . . . knowingly destroys, alters, conceals,
or disguises physical evidence, plants false evidence, or
furnishes false information”—was a crime that required proving
a dishonest act or false statement under rule 609(a)(2) of the
Federal Rules of Evidence (quotation simplified)); Stuart P.
Green, Deceit and the Classification of Crimes: Federal Rule of
Evidence 609(A)(2) and the Origins of Crimen Falsi, 90 J. Crim. L.
& Criminology 1087, 1123 (2000) (suggesting that the conduct
underlying “the modern offenses of perjury, obstruction of
justice, fraud, false weights and measures, and false claims” fall
into the grouping of crimes involving deceit, or crimen falsi); cf.
State v. Kennedy, 17 A.3d 293, 296 (N.J. Super. Ct. App. Div. 2011)
(concluding in the context of a statute requiring forfeiture of
public office or employment for persons convicted of “an offense
involving dishonesty,” that the offense of tampering with
physical evidence is “an offense involving dishonesty” because it
involves “deceptive conduct designed to obstruct the
administration of justice”); Bolus v. Fisher, 785 A.2d 174, 178 (Pa.
Commw. Ct. 2001) (stating, in the context of a state
constitutional provision regarding disqualification from public
office for persons convicted of an “infamous crime,” that
tampering with physical evidence is a crimen falsi offense
(…continued)
with a juror, id. § 76-8-508.5; falsifying or altering a government
record, id. § 76-8-511; impersonating an officer, id. § 76-8-512;
and providing false judicial or official notice to another, id. § 76-
8-513.
20160569-CA 10 2018 UT App 90State v. York
because it is “an attempt to obstruct justice and inherently
involves dishonesty”), aff’d, 798 A.2d 1277 (Pa. 2002) (per
curiam).
¶23 Nonetheless, York encourages us to decide that an
attempt to conceal a piece of evidence to impair its availability in
an investigation is not a dishonest act. She also contends that if
tampering with evidence qualifies as a dishonest act, “virtually
every crime” will be an impeachable offense under rule 609. We
are unpersuaded.
¶24 For one thing, Robinson appears to preclude the kind of
as-applied analysis York requests that we undertake. Robinson
interpreted the phrase “dishonest act or false statement” in rule
609(a)(2) as requiring courts to determine only whether the
elements of the statutory offense require the State to prove that
the defendant committed a dishonest act. Robinson v. Taylor, 2015
UT 69, ¶ 22, 356 P.3d 1230 (“Only when the elements of the
crime require proving a dishonest act or false statement can a
prior conviction be automatically admitted into evidence.”); id.
¶ 25 (explaining that “it is the elements of the criminal act that
determine its admissibility, not the manner in which the offense
is committed”); see also Fed. R. Evid. 609 advisory committee
notes to 2006 amendments (emphasizing that whether a prior
conviction required the fact-finder to find a dishonest act or false
statement ordinarily should be readily apparent from the
elements of the crime itself and that the rule “does not
contemplate a ‘mini-trial’ in which the court plumbs the record
of the previous proceeding to determine whether the crime was
in the nature of crimen falsi”). Indeed, in Robinson, the court
conducted a high-elevation analysis by succinctly concluding
that even if the offense for which the defendant had been
convicted could have been done in a deceitful way, it was not
admissible under rule 609(a)(2) because “elements of a dishonest
act or false statement” were not included “as part of the
statutory offense” at issue. See 2015 UT 69, ¶ 26. Here, Boyfriend
was convicted for evidence tampering under section 76-8-510.5.
And because we have concluded that evidence tampering is a
20160569-CA 11 2018 UT App 90State v. York
crime that, at its core, is one of deceit requiring proof of a
dishonest act to prove the statutory offense, we have no occasion
to delve more deeply than that. See id.; see also Fed. R. Evid. 609
advisory committee notes to 2006 amendments (suggesting that
a court need not inquire further for purposes of rule 609(a)(2)
where the statutory elements of an offense readily indicate that
the crime is one of dishonesty).
¶25 For another thing, we are unpersuaded that the variant
singled out by York—concealment to impair availability—is not
a deceptive act along with the other potential variations under
the statute. The statute does not criminalize concealment
committed for the sake of concealment alone, nor does it
criminalize impairment of an item’s availability apart from the
purpose undergirding the concealment. Rather, the statute
requires that the act of concealment occur in a particular context
and for a particular purpose before conviction may result.
Specifically, the statute requires the affirmative act (e.g.,
concealment) to occur in the context of a pending or an official
investigation that the actor believes or knows to be afoot. See
Utah Code Ann. § 76-8-510.5 (LexisNexis 2017). And it requires
that the affirmative act be tethered to a specific purpose—one
that, in the variant focused upon by York, is purposefully aimed
at deceiving investigators about whether an item is available to
serve as evidence in the proceeding or investigation. Id. In our
view, an affirmative act of concealment that occurs in this
context and for this purpose is an act of deceit and, like the other
variations of evidence tampering that may be taken under the
statute, constitutes a dishonest act that bears on a witness’s
ability to be truthful during an official proceeding such as a trial.
See United States v. Smith, 551 F.2d 348, 362–63 (D.C. Cir. 1976)
(“Even in its broadest sense, the term ‘crimen falsi’ has
encompassed only those crimes characterized by an element of
deceit or deliberate interference with a court’s ascertainment of
truth.”); Robinson, 2015 UT 69, ¶¶ 24–26.
¶26 Finally, we are unpersuaded by York’s contention that,
because there is some form of concealment in nearly every crime,
20160569-CA 12 2018 UT App 90State v. York
our conclusion would allow virtually every conviction to be
used for impeachment. First, our ruling is confined to
convictions under the evidence tampering statute. We do not
conclude that an act of concealment committed in some relation
to a crime transforms that crime into a crime of deception that
would make the conviction impeachable under the rule; we
conclude only that a conviction for tampering with evidence
under section 76-8-510.5 constitutes a dishonest act as
contemplated by rule 609(a)(2).
¶27 Second, it may be true that many, if not most, crimes are
committed with some element of deception or concealment. But
not every crime includes elements that require the State to prove,
and the fact-finder to find, that the actor committed a dishonest
act or a false statement before conviction may result. See Fed. R.
Evid. 609 advisory committee notes to 2006 amendments
(explaining that evidence of a conviction must be admitted
under subsection 609(a)(2) “only when the conviction required
the proof of . . . an act of dishonesty or false statement”; that
evidence of “all other convictions is inadmissible under this
subsection, irrespective of whether the witness exhibited
dishonesty or made a false statement in the process of the
commission of the crime of conviction”; and, providing as an
example, “evidence that a witness was convicted for a crime of
violence, such as murder, is not admissible under Rule 609(a)(2),
even if the witness acted deceitfully in the course of committing
the crime”). As a result, prosecutors will not be able to avoid the
probative weighing required under subsection (a)(1), 5 as York
5. Convictions for crimes involving a dishonest act or false
statement must be admitted under rule 609(a)(2) as being per se
probative of credibility. In contrast, the admission of evidence of
qualifying criminal convictions under rule 609(a)(1) of the Utah
Rules of Evidence is subject to the weighing of the prejudicial
effect of the evidence as against its probative value. See Utah R.
Evid. 609(a)(1)(A) (requiring a balancing under rule 403 before
admitting evidence of a witness’s conviction of a crime
(continued…)
20160569-CA 13 2018 UT App 90State v. York
contends, simply by asserting that a prior crime was committed
in some manner involving deception. Rather, to fall within
rule 609(a)(2), prosecutors are required to readily demonstrate
that a previous conviction required the fact-finder to find as an
integral element of the crime that the actor committed a
dishonest act or made a false statement. And, in our view, this is
the pertinent point of Robinson’s interpretation of rule 609(a)(2).
¶28 Accordingly, we conclude that Boyfriend’s tampering
with evidence conviction is “a dishonest act” for purposes of
rule 609(a)(2). The trial court therefore did not exceed its
discretion in admitting the evidence of that conviction.
B. False Information
¶29 York also argues that the trial court erred in admitting
Boyfriend’s purported conviction of providing false information.
In particular, she contends that the document supplied by the
State was insufficient to prove that conviction. We agree with
York but conclude that the trial court’s error in admitting the
conviction for impeachment purposes was harmless.
¶30 York asserts that the document “does not clearly attest
that [Boyfriend] was convicted of the offense of false
information.” She contends that it is not clear from the face of the
document that it is a judgment of conviction and that, at best, the
document indicates that Boyfriend was merely charged. She
points out, for example, that Boyfriend indicated with his
signature that he understood his rights, but she contends that the
document does not clearly indicate what plea Boyfriend made or
(…continued)
punishable by death or more than one year of imprisonment); id.R. 609(a)(1)(B) (requiring admission of evidence of a defendant’s
conviction of a crime punishable by death or more than one year
in prison if the probative value of the evidence outweighs its
prejudicial effect to the defendant).
20160569-CA 14 2018 UT App 90State v. York
whether he was convicted. And she points out that the
document “does not contain a judge’s signature to the
conviction”—that the judge’s signature merely certifies after the
fact that the document is “a true copy of the original on file.”
¶31 We agree that the document contains several ambiguities
that preclude it from serving as evidence of a conviction. While
the document contains some details that suggest Boyfriend was
convicted—such as the case number, the charge listed as “False
info,” a notation of “GP” in the plea section, and the reference to
an order to pay $402 under the heading “Sentencing”—the
document on its face does not identify itself as a judgment of
conviction, and there is no signature from a judge memorializing
a conviction. Indeed, the document does not even provide a
place for a judge’s signature. See State v. Stewart, 2011 UT App
185, ¶¶ 8–10, 257 P.3d 1055 (concluding that a minute entry that
indicated the defendant “pleaded guilty to retail theft and was
sentenced by the court,” while “strongly suggest[ing] the
defendant was convicted and sentenced for theft,” was not
sufficient to prove the defendant’s previous alleged theft
conviction because it was not “a written, signed judgment of
conviction”); State v. Anderson, 797 P.2d 1114, 1117 (Utah Ct.
App. 1990) (explaining in the context of using a previous
conviction to enhance a penalty that “a judgment of prior
conviction” must be “written, clear and definite, and signed by
the court”). It was therefore error for the court to rely on this
document as sufficient proof of the alleged conviction.
¶32 Nonetheless, we conclude that the error was harmless in
light of the other evidence in the case because it was “sufficiently
inconsequential [such] that there is no reasonable likelihood that
it affected the outcome of the proceedings,” and we affirm on
that basis. See State v. Clark, 2016 UT App 120, ¶ 7, 376 P.3d 1089(stating that “an evidentiary error cannot result in reversible
error unless the error is harmful” (quotation simplified)); see also
Utah R. Crim. P. 30(a) (“Any error, defect, irregularity or
variance which does not affect the substantial rights of a party
shall be disregarded.”).
20160569-CA 15 2018 UT App 90State v. York
¶33 To begin with, there was ample evidence from which the
jury could have concluded that York knew Boyfriend was hiding
in the trailer at the time the officer questioned her about
Boyfriend’s whereabouts. It was undisputed that Boyfriend was
discovered hiding in the trailer shortly after the officers arrived,
and the transporting officer testified that York stated that she
“didn’t open the [trailer] door for [Boyfriend],” because
Boyfriend “was there the whole time”—statements that, in
context, would have permitted the jury to infer that York
essentially admitted that she knew Boyfriend was hiding in the
trailer when Officer Bryner questioned her at the campsite. In
addition, Officer Bryner testified that after he informed York and
her friend that they had overstayed their welcome, the women
began to pack things inside the trailer, “leaning all the way into
[it] to put things inside,” and that they continued to do so
between the time he checked his vehicle’s computer for
information about them and shortly before he went back to York
to question her about Boyfriend’s whereabouts. Both officers
also testified that, when they did look in the trailer, nothing
obstructed their view of Boyfriend—that Boyfriend was in full,
plain view, and that due to the small size of the trailer,
Boyfriend’s feet were literally at the trailer door. And the officers
discovered Boyfriend mere minutes after checking York’s
information, during which time Officer Bryner kept a clear view
of the trailer. All of this evidence taken together would have
permitted the jury to infer that York had observed Boyfriend
hiding inside of the trailer before Officer Bryner questioned her.
¶34 Moreover, to the extent the alleged conviction might have
affected the jury’s perception of Boyfriend’s credibility and
thereby influenced its verdict, the alleged false information
conviction was cumulative of the more recent evidence
tampering conviction, which suggested that Boyfriend might be
less than credible and which we have affirmed as admissible for
impeachment purposes under rule 609(a)(2). Also, the alleged
conviction was not the only evidence before the jury that would
have drawn Boyfriend’s credibility into question. The State
elicited testimony suggesting that, because York and Boyfriend
20160569-CA 16 2018 UT App 90State v. York
were involved in a relationship and Boyfriend admitted that he
did not want York to get in trouble, Boyfriend had a motive to
lie. The jury also had before it the overall narrative of the events
that occurred at the campsite, including Boyfriend’s testimony
that he purposely hid from the police because he knew there was
a warrant for his arrest.
¶35 As a result, given the overall circumstances and evidence
in the case, we conclude that the court’s error in admitting
evidence that Boyfriend had been convicted of false information
was “sufficiently inconsequential that there is no reasonable
likelihood that it affected the outcome of the proceedings,” and
that the error was therefore harmless. See Clark, 2016 UT App
120, ¶ 7 (quotation simplified). Accordingly, we decline to
reverse York’s conviction based on this error.
II. The State’s Felony Reference
¶36 Finally, York argues that the State improperly referred to
Boyfriend’s tampering with evidence conviction as a felony
rather than a misdemeanor. She contends that the parties “had
agreed that the State could tell the jury [that Boyfriend] was
convicted of a misdemeanor,” not that the crime had originally
been charged and convicted as a felony but was later reduced to
a misdemeanor.
¶37 As an initial matter, we are not convinced that the State
committed prosecutorial misconduct by telling the jury that the
conviction was initially a felony but was later reduced to a
misdemeanor. The parties stipulated that the conviction was
ultimately a class A misdemeanor, but the parties’ stipulation
did not address whether the State could mention that the crime
was originally charged and convicted as a felony.
¶38 Nevertheless, for a reversal on this basis, York must
persuade us that the felony reference was prejudicial. See State v.
Ashcraft, 2015 UT 5, ¶ 31, 349 P.3d 664 (explaining that “to
sustain a reversal on an assertion of prosecutorial misconduct,” a
defendant must establish that, “under the circumstances of the
20160569-CA 17 2018 UT App 90State v. York
particular case, the error is substantial and prejudicial”
(quotation simplified)); State v. Thompson, 2014 UT App 14, ¶ 83,
318 P.3d 1221 (instructing that “in assessing the prejudicial effect
of prosecutorial misconduct, we must view [the offending]
statements in context of the arguments advanced by both sides
as well as in context of all the evidence” and that “if proof of
defendant’s guilt is strong, the challenged conduct or remark
will not be presumed prejudicial” (quotation simplified)).
¶39 York has not done so. The tampering with evidence
conviction was admitted only to impeach Boyfriend, and it is
unlikely that the jury’s view of York’s guilt was influenced in a
substantive way by hearing that Boyfriend’s conviction was
originally a felony conviction before being reduced to a
misdemeanor conviction. Regardless, the conviction still
suggested that Boyfriend might be less than credible, and it
strains credulity to believe that the jury convicted York because
it perceived Boyfriend as a felon. Moreover, as discussed above,
supra ¶¶ 33–34, the felony reference was cumulative of other
evidence bearing on Boyfriend’s credibility, and there was ample
evidence from the testimony provided at trial to support York’s
conviction. See Thompson, 2014 UT App 14, ¶ 83. For these
reasons, we are unpersuaded that the felony reference was
prejudicial.
CONCLUSION
¶40 We conclude that the trial court did not exceed its
discretion in admitting under rule 609(a)(2) Boyfriend’s
conviction of tampering with evidence. We also conclude that
even though the trial court erroneously admitted Boyfriend’s
alleged false information conviction, the error was harmless.
Finally, we conclude that the State’s reference to Boyfriend’s
tampering with evidence conviction as a felony was not
prejudicial. Accordingly, we affirm.
20160569-CA 18 2018 UT App 90