State v. Barner, 042320 UTCA, 20180534-CA

Docket Nº:20180534-CA
Opinion Judge:HAGEN, JUDGE
Party Name:State of Utah, Appellee, v. Brett Nicholas Barner, Appellant.
Attorney:Andrea J. Garland, Attorney for Appellant Sean D. Reyes and Karen A. Klucznik, Attorneys for Appellee
Judge Panel:Judge Diana Hagen authored this Opinion, in which Judges David N. Mortensen and Jill M. Pohlman concurred.
Case Date:April 23, 2020
Court:Court of Appeals of Utah
 
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2020 UT App 68

State of Utah, Appellee,

v.

Brett Nicholas Barner, Appellant.

No. 20180534-CA

Court of Appeals of Utah

April 23, 2020

Third District Court, Salt Lake Department The Honorable James T. Blanch No. 171912692

Andrea J. Garland, Attorney for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys for Appellee

Judge Diana Hagen authored this Opinion, in which Judges David N. Mortensen and Jill M. Pohlman concurred.

OPINION

HAGEN, JUDGE

¶1 Brett Nicholas Barner was convicted of robbery after he stole a case of beer from a 7-Eleven and hit the store clerk with his car while fleeing the parking lot. He now appeals, alleging that the district court erred by excluding a detective's testimony and report opining that video surveillance footage did not show that Barner intentionally hit the clerk. He further alleges that the district court erred in denying his motion for a directed verdict. We conclude that the district court properly excluded the detective's report and testimony under rule 701 of the Utah Rules of Evidence and, regardless, the exclusion did not harm Barner. We further conclude that the district court correctly denied Barner's motion for a directed verdict. Therefore, we affirm.

BACKGROUND1

¶2 On June 18, 2017, Barner entered a 7-Eleven convenience store, grabbed an 18-pack of beer, and left without paying. The 7-Eleven clerk working at the time noticed Barner leaving and ran after him. When Barner got in his car, the clerk stood in front of it. Barner then drove away and hit the clerk with his car as he exited the parking lot. Fortunately, the clerk was not injured during this encounter.

¶3 A Salt Lake City Police detective followed up at the scene after the clerk called 911. After reviewing the store's surveillance footage and interviewing the clerk, the detective drafted a report stating, "The surveillance footage does not show that the suspect intentionally hit the clerk, but the clerk is seen running up to the suspect's vehicle. No injuries were reported by the clerk." Soon thereafter, Barner was arrested and charged with aggravated robbery.

¶4 Prior to trial, the State moved to exclude the report and any testimony from the detective. The district court granted that motion. Although the court acknowledged that the report was admissible under the business records exception to the rule against hearsay, it found that the detective's statement in the report, as well as the detective's testimony as to what the surveillance video showed, was inadmissible under the lay witness requirements of rule 701 of the Utah Rules of Evidence because it would be unhelpful to the jury.2

¶5 At trial, the clerk testified for the State. He testified that once he noticed Barner leaving the store without paying, he ran after him and saw Barner get in his car. The clerk explained that he approached the car, yelled at Barner, and made eye contact with him before Barner accelerated, grazing the clerk's legs with the car as he drove off. When defense counsel asked whether it was "possible that as opposed to trying to hit [him], [Barner was] just trying to drive off," the clerk answered, "yes." In addition to the clerk's testimony, surveillance footage of the incident was shown to the jury.

¶6 Barner moved for a directed verdict at the close of the State's case, arguing that the aggravated robbery charge should be dismissed because the State had failed to present sufficient evidence to show that Barner had knowingly or intentionally used force or fear of immediate force against the clerk. The district court denied the motion.

¶7 At the parties' request, the court instructed the jury on aggravated robbery as well as lesser included...

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