State v. Otkovic
2014 UT App 58
| Utah Ct. App. | 2014Background
- On May 24, 2009, Hawkins reported he was robbed at gunpoint after meeting with Otkovic (and others) at a tinting shop; $1,680 was taken and Hawkins was forced to withdraw money at an ATM. Police later recovered a white Blackberry, a pistol matching Hawkins’s description, and $1,616 from Otkovic’s home.
- Hawkins provided police a phone (allegedly from Shields) containing texts from the Blackberry number later linked to Otkovic; some texts appeared to admit the robbery and instructed Shields not to reveal the sender’s identity.
- Otkovic claimed he and Shields sold stolen electronics to Hawkins and that Hawkins voluntarily paid him; he also testified he loaned his phone to Shields during the relevant time.
- The State sought to admit the texts; the trial court overruled Otkovic’s authentication objection and admitted them.
- Otkovic sought to introduce evidence that Hawkins operated as a fence to impeach Hawkins and support a framing/motive defense; the trial court limited general evidence of Hawkins’s fencing under Utah R. Evid. 403.
- The jury convicted Otkovic of aggravated kidnapping and aggravated robbery; on appeal the court reversed and remanded for a new trial based principally on improper exclusion under Rule 403, but upheld admission of the texts and denial of dismissal for the destroyed ATM video.
Issues
| Issue | Otkovic's Argument | State's Argument | Held |
|---|---|---|---|
| Exclusion of evidence under Utah R. Evid. 403 (Hawkins’s fencing history) | Evidence of Hawkins’s fencing was central to Otkovic’s defense (impeach credibility, show motive to frame); exclusion undermined defense. | Trial court properly excluded broad, prejudicial, confusing evidence about Hawkins’s operation to avoid jury confusion and delay. | Reversed: exclusion was an abuse of discretion as limiting all general evidence that Hawkins was a fence deprived Otkovic of essential impeachment/motive proof and undermined confidence in the verdict. |
| Authentication of text messages | Texts were not properly authenticated; foundation insufficient to admit them as Otkovic’s statements. | Phone number on texts belonged to the Blackberry recovered from Otkovic’s home and evidence placed him in possession of the phone when texts sent—sufficient circumstantial authentication. | Affirmed: State made a prima facie showing of authenticity; admission was within trial court’s discretion. |
| Dismissal for loss/destruction of ATM video | Destruction/loss of bank ATM video warranted dismissal because it might have been exculpatory. | Defendant failed to show reasonable probability that the missing video would have been exculpatory; email describing footage suggested limited utility. | Affirmed: defendant did not meet threshold that the lost video had a reasonable probability of being exculpatory, so dismissal was not required. |
| Ineffective assistance / prosecutorial misconduct (raised on appeal) | Trial counsel failed to use phone records to impeach Hawkins; prosecutor misstated evidence in closing — together with excluded evidence, these errors undermine confidence in verdict. | State says counsel performance did not create reasonable probability of different outcome given other inculpatory evidence. | Not decided on merits: court noted concerns (see concurrence) but found reversal warranted on Rule 403 exclusion alone; declined to resolve ineffective assistance or misconduct in detail. |
Key Cases Cited
- Diversified Holdings, LC v. Turner, 63 P.3d 686 (Utah 2002) (abuse-of-discretion standard for Rule 403 evidentiary rulings)
- State v. Silva, 13 P.3d 604 (Utah Ct. App. 2000) (standard of review for authentication rulings)
- State v. Tiedemann, 162 P.3d 1106 (Utah 2007) (test and burden for dismissal when evidence lost/destroyed)
- State v. Ramirez, 924 P.2d 366 (Utah Ct. App. 1996) (presumption in favor of admitting relevant evidence under Rule 403)
- State v. Dunn, 850 P.2d 1201 (Utah 1993) (Rule 403 and admissibility principles)
- State v. Thompson, 318 P.3d 1221 (Utah Ct. App. 2014) (permitting impeachment and relevance of prior-bad-act evidence for noncharacter purposes)
- United States v. Tank, 200 F.3d 627 (9th Cir. 2000) (prima facie standard for authentication of electronic evidence)
- State v. Gulbransen, 106 P.3d 734 (Utah 2005) (lost evidence that is only potentially useful does not require remedy)
- State v. Knight, 734 P.2d 913 (Utah 1987) (harmless-error standard requiring undermining confidence in verdict)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong standard for ineffective assistance of counsel)