State v. Johnson, 387 P.3d 1048

Background

Victim and Ken Johnson (defendant) were divorced; Victim owed Johnson a reduced promissory note ($15,000) and had not paid, creating a dispute.
On March 30, 2014, Johnson left a slurred voicemail saying he was coming over; he then kicked in Victim’s back door, grabbed her cell phone while she attempted to call 911, threatened her, and fled, later destroying the phone.
Johnson was tried by jury on burglary (theory at issue), damage to/interruption of a communication device, and theft; he pleaded guilty to two counts (not challenged on appeal) and was convicted of burglary.
Key trial disputes on appeal: adequacy of jury instructions on burglary/theft intent, admission of a 41‑second voicemail excerpt (including obscenities), off‑record judge/bailiff contacts with jury (including allowing recordings during deliberations), and admission of Victim’s written witness statement after cross‑examination.
Trial court admitted the voicemail excerpt under Rule 403 (over objection), allowed the bailiff to play recordings for jurors during deliberations (with defense consent), and admitted Victim’s full written statement under the rule of completeness (Rule 106) after defense used parts of it on cross‑examination.
On appeal, the Utah Court of Appeals affirmed Johnson’s burglary conviction, rejecting his challenges to instructions, voicemail admission, jury contact (and ineffective‑assistance claim), and hearsay rulings; cumulative‑error claim failed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Johnson)	Held
Adequacy of jury instructions on burglary/theft intent	Instructions, read together, correctly required specific intent to commit theft and theft’s "purpose to deprive" (permanent deprivation)	Instructions were misleading/insufficient; failed to require contemporaneous intent to permanently deprive when entering/remaining	Affirmed — instructions, taken as a whole (Instr. 25, 28, 32), fairly instructed jury; jury note response did not create confusion likely to mislead
Admission of voicemail excerpt under Rule 403	Recording was probative of state of mind and motive; probative value not substantially outweighed by unfair prejudice	Recording was more prejudicial than probative (obscenities, animus), and defendant had stipulated to entry	Affirmed — trial court did not abuse discretion; probative value substantial and not substantially outweighed by unfair prejudice
Judge/bailiff contact with jury and counsel acquiescence; ineffective assistance claim	Contacts were logistical; defense counsel consented; no presumption of prejudice; counsel’s performance not deficient	Judge spoke off‑record about matters relating to trial; bailiff remained in room to play tapes — presumptively prejudicial; counsel ineffective for consenting	Affirmed — no substantive off‑record matters discussed; bailiff is court personnel and no evidence of improper communication; counsel had conceivable tactical reasons, so no deficient performance
Admission of Victim’s written statement (hearsay/Rule 106)	Defense used portions to impeach; fairness required admitting the rest under Rule 106 to avoid misleading the jury	Statement was hearsay, not a proper prior consistent statement; Rule 106 shouldn’t permit admission of the whole statement	Affirmed — trial court did not abuse discretion; Rule 106’s fairness standard justified admitting the full written statement after defense highlighted parts on cross‑examination

Key Cases Cited

Old Chief v. United States, 519 U.S. 172 (U.S. 1997) (prosecutor may present evidence with narrative value beyond stipulations)
Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (U.S. 1988) (common‑law completeness doctrine permits remainder of a writing to be admitted)
United States v. Freeman, 634 F.2d 1267 (10th Cir. 1980) (presence of an adversary in jury room to operate equipment requires reversal)
State v. Maurer, 770 P.2d 981 (Utah 1989) (highly prejudicial inflammatory evidence may unfairly sway jury)
State v. Jonas, 793 P.2d 902 (Utah Ct. App. 1990) (ministerial bailiff contact that does not mingle or discuss trial does not create presumption of prejudice)
State v. Lucero, 328 P.3d 841 (Utah 2014) (probative value must be substantially outweighed by unfair prejudice under Rule 403)
State v. Verde, 296 P.3d 673 (Utah 2012) (prosecutor retains discretion to present narrative evidence despite stipulations)