State v. Johnson, Opinion No. 20141155–CA

CourtCourt of Appeals of Utah
Citation2016 UT App 223,387 P.3d 1048
Docket NumberOpinion No. 20141155–CA
Parties State of Utah, Appellee, v. Ken Montey Johnson, Appellant.
Decision Date10 November 2016

387 P.3d 1048
2016 UT App 223

State of Utah, Appellee,
Ken Montey Johnson, Appellant.

Opinion No. 20141155–CA

Court of Appeals of Utah.

Filed November 10, 2016

Alexandra S. McCallum, Attorney for Appellant

Sean D. Reyes and Christopher D. Ballard, Salt Lake City, Attorneys for Appellee.

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


¶1 Defendant Ken Montey Johnson appeals his convictions for burglary, damage to/interruption of a communication device, and theft.1 He contends that the district court's instructions to the jury were inadequate and misleading, that prejudicial portions of a voicemail recording were improperly admitted into evidence, that the judge and bailiff had improper contact with the jury,

387 P.3d 1052

and that hearsay evidence was improperly admitted at trial. We affirm.


¶2 "On appeal from a jury verdict, we view the evidence and all reasonable inferences in the light most favorable to that verdict and recite the facts accordingly." State v. Dozah , 2016 UT App 13, ¶ 2, 368 P.3d 863. "We include conflicting evidence as relevant and necessary to understand the issues on appeal." Id.

¶3 Victim and Defendant divorced in 2010. Victim was awarded the marital residence, but was required to pay Defendant $ 25,000. Victim initially executed a promissory note in favor of Defendant for the full amount, but Defendant later agreed to a reduced note of $ 15,000 due to Victim's financial situation. Nevertheless, by the spring of 2014, Victim had yet to make any payment on the note and the debt had become a point of dispute between them.

¶4 On March 30, 2014, Defendant called Victim and left a voicemail stating that he was coming over to talk about the money. Victim claimed that, in the voicemail, Defendant "sounded extremely drunk" and was "slurring his words." When he arrived at her house and started kicking at the back door, Victim threatened to call the police. While she dialed 911 on her cell phone, Defendant broke open the back door and entered the house. Victim accidentally hung up while Defendant was "screaming and yelling" because she was scared and "shaking like crazy." When the 911 operator returned the call, Defendant "grabbed" the phone, feigned punches toward Victim, and continued to yell in slurred words that he wanted to talk to Victim. Victim attempted to retrieve the phone but Defendant grabbed her wrist, saying, "I should throw you down the stairs right now." Eventually Victim retreated, and Defendant fled the house with the phone and later destroyed it.

¶5 At trial, the central issue was whether Defendant had entered or remained in the house with the intent to commit theft or assault. Defendant argued that he lacked the intent to commit a theft because he did not enter or remain in the house with the intent to permanently deprive Victim of her phone. In support of this claim, Defendant presented his own testimony that he had taken the phone only to "keep her from calling the police" and that he did not intend to assault Victim or steal her phone while he entered and remained in the house. Defendant also presented testimony from his friend that he went to the friend's residence after fleeing from Victim's house and had expressed a desire to "get back" to Victim's house to "give the phone back" to her. According to Defendant, he had no intent to destroy the phone until he returned to Victim's house and saw that the police had arrived whereupon he smashed the phone, " 'cause I was mad the police were there."

¶6 During the trial, the State sought to enter into evidence a recording of a voicemail Defendant left on Victim's phone about a week after the incident. The garbled but obscenity-laden recording was almost four minutes long. In one of the intelligible portions of the voicemail, Defendant used the phrase "arrest me for breaking and entering," which the State characterized as an admission. Over Defendant's objection, the court admitted a 41–second portion and allowed it to be played for the jury.

¶7 The State also sought to admit Victim's written witness statement, which she had made immediately after the incident. The district court initially admitted the statement over Defendant's hearsay objection. After Defendant moved for a mistrial due to admission of the witness statement, the district court determined that the witness statement was hearsay and excluded it. However, the district court denied the motion for a mistrial. Later, while cross-examining Victim, Defendant repeatedly questioned her credibility by pointing out that her testimony at trial included details not present in her written witness statement. Defendant also implied that Victim's $ 15,000 debt to Defendant gave her a motive to fabricate her allegations against him. The State again sought admission of the witness statement, and the district court agreed it should be admitted in its entirety.

387 P.3d 1053

¶8 During a recess in the trial, the judge informed counsel that she wanted to visit the jurors to explain the reasons for a delay; counsel acquiesced. When the judge returned, she stated on the record that she had done so in order to tell the jury that the recess had run longer than planned due to the preparation of jury instructions and that the State was deciding whether to put on any rebuttal. The judge also mentioned that the jurors had asked if they were going to be able to listen to the recordings of the voicemail and a 911 call2 or have access to transcripts of them during deliberations. The judge reported that she had responded that there were no transcripts and that the judge and counsel would discuss whether the jurors would get to hear the recordings.

¶9 The court permitted the jury to hear the recording of the voicemail as well as the recording of Victim's 911 call during the jury's deliberations. The court explained that the prosecutor would have to show the bailiff how to play the recordings for the jury. Defense counsel did not object; rather, he merely asked that he be allowed to observe the prosecutor's instruction to the bailiff. The bailiff then played the recordings for the jury.

¶10 The jury convicted Defendant of burglary and acquitted him of a threat of violence charge. Defendant appeals.


¶11 Defendant first contends that the district court's burglary instruction was inadequate and misleading. "We review challenges to jury instructions under a correctness standard." State v. Davis , 2013 UT App 228, ¶ 15, 311 P.3d 538 (citation and internal quotation marks omitted).

¶12 Defendant next contends that the district court violated rule 403 of the Utah Rules of Evidence when it admitted a portion of a recording of a voicemail that he left for Victim about a week after the incident. We review a district court's "decision to admit or exclude evidence under Rule 403 of the Utah Rules of Evidence under an abuse of discretion standard, and will not overturn a lower court's determination of admissibility unless it is beyond the limits of reasonability." State v. Williams , 2014 UT App 198, ¶ 10, 333 P.3d 1287 (citation and internal quotation marks omitted). "[L]ike any other evidentiary ruling, an erroneous decision to admit or exclude evidence based on rule 403 cannot result in reversible error unless the error is harmful." Id. (citation and internal quotation marks omitted).

¶13 Defendant also contends that both the trial judge and the bailiff had improper contact with the jury during the trial. We review the propriety of communications between district court personnel and deliberating jurors for correctness, disturbing the verdict only if the error is "substantial or prejudicial such that the result would have been different had it not taken place." Board of Comm'rs of Utah State Bar v. Petersen , 937 P.2d 1263, 1267 (Utah 1997) (ellipsis, citation, and internal quotation marks omitted). Here, because defense counsel agreed to both the judge's and the bailiff's contact with the jury and did not later object, we consider Defendant's argument that defense counsel's assistance was constitutionally ineffective. "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." State v. Beckering , 2015 UT App 53, ¶ 18, 346 P.3d 672 (brackets, citation, and internal quotation marks omitted).

¶14 Defendant further contends that the district court erred by admitting hearsay evidence in the form of Victim's witness statement. "In reviewing the admissibility of hearsay, legal questions are reviewed for correctness while the ultimate ruling on admissibility is reviewed for an abuse of discretion." State v. Burke , 2011 UT App 168, ¶ 16, 256 P.3d 1102. We review for an abuse of discretion a district court's decision to

387 P.3d 1054

admit evidence pursuant to rule 106 of the Utah Rules of Evidence. See State v. Montgomery , 2007 UT App. 24U, para. 4; see also United States v. Lopez–Medina , 596 F.3d 716, 734–35 (10th Cir. 2010) (considering the analogous federal rule).


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