Mulder v. State

Decision Date06 October 2016
Docket NumberNo. 20140642–CA,20140642–CA
Citation385 P.3d 708,2016 UT App 207
Parties Todd W. MULDER, Appellant, v. STATE of Utah, Appellee.
CourtUtah Court of Appeals

Todd W. Mulder, Appellant Pro Se.

Sean D. Reyes and Ryan D. Tenney, Salt Lake City, Attorneys for Appellee.

Judge Michele M. Christiansen authored this Opinion, in which Judge Kate A. Toomey and Senior Judge Pamela T. Greenwood concurred.1



¶1 Todd W. Mulder appeals the district court's entry of summary judgment in favor of the State on his claims for postconviction relief. We affirm.


¶2 In 2003, Mulder and an acquaintance from prison, Campbell, decided to rob the victim's (Victim) coin shop at the suggestion of Mulder's girlfriend, Schlegel. Schlegel and Mulder had previously been to Victim's shop, where Schlegel noticed that Victim had retrieved cash from a safe behind his counter and that he had left the safe unlocked afterward. Schlegel brought up the idea of robbing Victim's coin shop, telling Mulder and Campbell that Victim was "sitting on a gold mine." Campbell suggested that Mulder help him rob the coin shop. However, after Mulder and Schlegel observed that Victim would recognize Mulder because he had visited the shop before, they agreed that Campbell would rob the shop alone and that Mulder would act as the getaway driver.

¶3 Mulder and Campbell obtained a wig and coat for Campbell to wear as a disguise, walkie-talkies for communication, and duct tape and handcuffs to restrain Victim. Campbell wanted to carry a stun gun, but Mulder insisted that Campbell instead use a gun that Mulder had recently obtained. Mulder instructed Campbell to "be a lion" when he went inside Victim's shop and to "go in and be forceful, take control of the situation immediately."

¶4 On November 24, 2003, Mulder, Campbell, and Schlegel drove to Mesquite, Nevada, in Schlegel's truck and checked into a hotel under Schlegel's name. The next morning, Campbell donned his disguise, and Mulder and Campbell then drove to Victim's coin shop in St. George, Utah. Mulder dropped Campbell off a short distance from Victim's shop.

¶5 Campbell entered Victim's shop, "pointed the gun and started ... yelling and screaming." Victim was on the phone at the time and looked at Campbell "kind of funny." Campbell shot Victim in the chest. To ensure that Victim could not interfere with the robbery, Campbell turned Victim onto his stomach and handcuffed his hands behind his back. As expected, Victim's safe was unlocked. Campbell loaded two duffel bags full of coins and money, radioed Mulder that he was ready to be picked up, and left the shop. When Campbell got inside the truck, he told Mulder that he had shot Victim in the shoulder and not to call 911. Victim died a short time later.

¶6 Mulder and Campbell drove back to the hotel and divided the stolen coins and money. As part of their share, Mulder and Schlegel received two one-ounce gold coins and "lots of silver coins." About two weeks later, Mulder and Schlegel went to a pawn shop in Las Vegas, Nevada, to sell one of the gold coins. Campbell unexpectedly approached them in the parking lot and told them that he had sold a gold coin at the same pawn shop earlier that day. Mulder was concerned that "Campbell [was] throwing the money around" and that he would attract unwanted attention, so Mulder offered Campbell $3,000 for the coins that Campbell still had from the robbery. Mulder told Campbell to "[t]ake the $3,000 and get out of here. We don't want to ever know who you are, we don't want to see you again." In the months following the crime, both Campbell and Mulder were reincarcerated for different offenses, but neither man had been linked to Victim's murder. Then, in October 2004, police officers received a tip that Campbell had confessed his involvement in the crime to a fellow inmate and that Campbell had implicated a former cellmate named "Todd" and Todd's girlfriend. Following up on this lead, officers were ultimately led to Mulder, Campbell, and Schlegel. In their interviews with police, both Campbell and Schlegel admitted their involvement in the crime and both claimed that Mulder was involved in the planning and execution of the crime. Mulder denied any involvement in the crime.

¶7 Mulder was charged with murder, aggravated robbery, and aggravated kidnapping. At his trial, both Schlegel and Campbell testified and implicated Mulder in the crime. The State also introduced a video of the shooting taken from the coin shop's security camera, which showed Campbell approaching the shop's door after the shooting and motioning to someone outside. In addition, the State presented a receipt demonstrating that Mulder had sold a gold coin at a Las Vegas pawn shop shortly after the crime.

¶8 Mulder agreed to a stipulated set of facts for his trial, wherein he acknowledged his prior relationship with Campbell from their time together in prison and Campbell's role in the robbery and shooting. Mulder also testified on his own behalf, stating that he had been in Victim's coin shop several times with Schlegel and that he had heard Schlegel refer to the coin shop as a "gold mine." He also testified that he met up with Campbell a few weeks before the crime and that he was with Schlegel and Campbell when the idea of robbing the shop first came up. Mulder claimed that it was Schlegel's idea to rob the shop and that she had blackmailed him into participating in the planning of the crime. Mulder further acknowledged that he helped Campbell obtain a disguise and that he watched Campbell don the disguise on the morning of the crime; however, he claimed that he only did so because of Schlegel's threats of blackmail. Mulder claimed that on the morning of the crime, he stayed in Mesquite and tried to sell stolen jewelry.

¶9 The jury convicted Mulder on all counts. Mulder, represented by new counsel, raised two claims of ineffective assistance of counsel on direct appeal: (1) that trial counsel failed to argue that the aggravated kidnapping charge merged into the crime of aggravated robbery, and (2) that trial counsel failed to move to dismiss the aggravated kidnapping charge on grounds of insufficient evidence. State v. Mulder , 2009 UT App. 318U, para. 1, 2009 WL 3674534. This court rejected both claims and affirmed Mulder's convictions. Id. paras. 2, 6, 10.

¶10 On August 25, 2010, Mulder filed a petition for postconviction relief under Utah's Post–Conviction Remedies Act (the PCRA). See Utah Code Ann. §§ 78B–9–101 to –405 (LexisNexis 2012). In the petition, Mulder argued that both his trial counsel and his appellate counsel had been ineffective. In addition, Mulder alleged that he was entitled to relief based on newly discovered evidence. In support of his newly discovered evidence claim, Mulder proffered two affidavits from Campbell, in which Campbell recanted portions of his trial testimony.

¶11 The district court directed the State to respond only to Mulder's ineffective assistance of appellate counsel and newly discovered evidence claims. The State then moved for summary judgment on all of Mulder's claims, and the district court granted the State's motion. Mulder now appeals the district court's grant of summary judgment to the State.


¶12 Mulder contends that the district court erred by granting the State's motion for summary judgment on his newly discovered evidence claim and on six of his ineffective assistance of appellate counsel claims. "We ... review the postconviction court's grant of summary judgment for correctness." Honie v. State , 2014 UT 19, ¶ 28, 342 P.3d 182. "We affirm a grant of summary judgment when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ross v. State , 2012 UT 93, ¶ 18, 293 P.3d 345 (citation and internal quotation marks omitted). "In making this assessment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Id. (citation and internal quotation marks omitted).

I. Newly Discovered Evidence

¶13 Mulder contends that the district court erroneously granted the State's motion for summary judgment on his newly discovered evidence claim. In support of this claim, Mulder submitted two affidavits from Campbell, in which Campbell attested that "Mulder was innocent of all charges" and that Campbell had previously "lied about [Mulder's] involvement." Campbell also attested that he had "trick[ed]" Mulder and Schlegel "into going to Mesquite, ... under false pretenses." He further claimed that on the day of the murder, he dropped Mulder off at a shopping complex in Mesquite and then "went to St. George and did the armed robbery ... completely alone."

¶14 Under the PCRA, a petitioner is entitled to relief based on "newly discovered material evidence" if (1) neither the petitioner nor his counsel knew of, or could have discovered through the exercise of reasonable diligence, the evidence before or at the time of trial; (2) the material evidence is not merely cumulative of evidence already known; (3) the material evidence is not merely impeachment evidence; and (4) "viewed with all the other evidence, the newly discovered material evidence demonstrates that no reasonable trier of fact could have found the petitioner guilty of the offense or subject to the sentence received." Utah Code Ann. § 78B–9–104(1)(e) (LexisNexis 2012). "[U]nder the PCRA, as well as our due process case law, newly discovered evidence merits post-conviction relief only if the evidence would create a reasonable doubt as to the defendant's guilt." Medel v. State , 2008 UT 32, ¶ 51, 184 P.3d 1226.

¶15 The district court denied Mulder's newly discovered evidence claim, ruling that Mulder's claim failed because Campbell's affidavits, "viewed with all the other evidence, certainly do[ ] not demonstrate that no reasonable trier of fact would find [Mulder] guilty." See Utah...

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    ...reversal if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." See Mulder v. State , 2016 UT App 207, ¶ 28, 385 P.3d 708 (brackets, citation, and internal quotation marks omitted). But inconsistencies in a witness's testimony alone do ......
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