State v. Dunne, 040920 UTCA, 20180646-CA

Docket Nº:20180646-CA
Opinion Judge:POHLMAN, JUDGE
Party Name:State of Utah, Appellee, v. James Robert Dunne, Appellant.
Attorney:Scott L. Wiggins, Attorney for Appellant Sean D. Reyes and Karen A. Klucznik, Attorneys for Appellee
Judge Panel:Judge Jill M. Pohlman authored this Opinion, in which Judges Michele M. Christiansen Forster and Kate Appleby concurred.
Case Date:April 09, 2020
Court:Court of Appeals of Utah
 
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2020 UT App 56

State of Utah, Appellee,

v.

James Robert Dunne, Appellant.

No. 20180646-CA

Court of Appeals of Utah

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.

OPINION

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.

BACKGROUND1

¶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 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.2Shortly 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 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 immunity4 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 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...

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