The defendant, Steven Charles Leonard, appeals from his jury conviction of theft of services having a value of more than $250 but not more than $1,000, a third degree felony. He argues that: (1) the evidence was insufficient to support the verdict; (2) the trial judge refused to allow defense counsel to withdraw as counsel prior to trial, even though it appeared that it would be necessary that she testify as a witness on the defendant’s behalf; and (3) the defendant’s counsel was denied effective cross-examination of the defendant’s hostile witness. We reverse and remand.
On February 10, 1981, the defendant checked into the Tri-Arc Travel Lodge in Salt Lake City. He signed the guest registration card using his own name, an acquaintance’s phone number, and the address which appeared on his driver’s license but which was not his then current address. He paid for the first nights lodging in cash. On February 11, 1981, he again paid his full hotel bill in cash. After the payment on the 11th, no more payments were made. By February 14th, the accumulated bill for the defendant’s room was over $100. When the defendant did not respond to the hotel’s requests for him to contact the desk to pay the accumulated bill, his hotel room was locked.
On February 15th, the defendant and another male, James Borland, reported to the front desk supervisor that they were locked out of their room. The defendant explained that he had been stranded in Park City. He promised to pay the outstanding $352.40 owed on the hotel and restaurant bills that were in his name the following day when he could go to his credit union for the necessary money. The defendant was let back into his room.
The following day the resident hotel manager called the defendant’s room. The persоn who answered the phone responded to the defendant’s name and promised to pay the bill. Instead, the defendant and Borland vacated the room. The defendant was arrested shortly thereafter and charged with theft of services.
Before trial, the defendant’s counsel, Jo Carol Nesset-Sale, an attorney in the legal defender’s office, advised the trial court that she would have to testify on behalf of her client. It appeared that Borland would assert the privilege against self-incrimination and not testify in favor of the defendant as originally expected; she thought that it would be necessary to testify to statements made to her by Borland pertаining to defendant’s asserted innocence. Nesset-Sale moved for a mistrial after the jury was sworn but before any evidence was adduced so that she could withdraw from the case. The trial judge ruled that Nesset-Sale should continue to represent defendant until she actually testified, when the court would appoint co-counsel to examine Nesset-Sale and argue her credibility to the jury.
At trial the defendant’s witness, James Borland, invoked his Fifth Amendment rights when questioned concerning his participation in renting and using the hotel room. However, after the prosecution offered Borland limited immunity from prosecution for the crimes of theft by deception and theft of services at the Tri-Arc, Bor-land took the stand and testified that he had told the defendant he would help him pay the bill, but that he had not told the hotel staff he would pay the bill. On cross examination, he admitted telling Nesset-Sale that he had promised someone on the hotel staff that he would pay the hotel bill, but claimed that he made the statemеnts only because of his friendship with the defendant.
To impeach Borland’s testimony and to provide substantive evidence that it was Borland who had promised to pay, Nesset-Sale testified that Borland had told her that he had talked to the hotel staff and had promised to pay the bill.
I.
The defendant contends that the trial judge committed reversible error in deny *653 ing defendant’s motion to allow his counsel, Nessett-Sale, to withdraw from the case when it became apparent that she would be obliged to testify on her client’s behalf.
Disciplinary Rule 5-102(A) of the Revised Rules of Professional Conduct of the Utah State Bar, provides:
If, after undertaking employment in contemplatеd or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (4). 1
“Application of this rule does not depend on whether an attorney will be called but rather, as the Code provides, on whether he ‘ought to be called as a witness’ in the underlying action.”
Groper v. Taff, 717
F.2d 1415, 1418 (D.C.Cir.1983) (per curiam);
J.P. Foley & Co. v. Vanderbilt,
Defendant’s attorney, Nesset-Sale acted appropriately and timely in seeking to withdraw when it appeared that she might have to testify and when she later moved for a mistrial. By these actions she sought to avoid committing an ethical violation and prejudicing her client’s case by subjecting her own testimony on a critical issue in the case to an attаck for bias. When the trial judge refused to allow her to withdraw, she had no alternative but to continue as counsel for her client, and to testify as a witness for the defendant.
An attorney’s breach of a State Bar disciplinary rule in connection with the trial of a case, whether voluntary or compelled, does not necessarily establish grounds for a reversal. The Code of Professional Respon-siblity does not delineate rules of evidence and procedure; it only states standards to govern an attorney’s conduct.
See Rosen v. NLRB,
The great weight of authority, however, is that it is error for counsel to continue representation where he or she is or ought to be a witnеss with respect to issues that are not incidental or insignificant. It is widely recognized that the credibility of an attorney who acts as a witness in his client’s case, as well as his effectiveness as an attorney in that case, may be seriously compromised.
See, e.g., Rosen v. NLRB,
Experience teaches that the roles of advocate and witness should be separated. If an attorney attempts to combine the two roles, he is likely to be less effective in each role. “That counsel should avoid appearing both as advocate and witness except under special circumstances is beyond question.”
United States v. Morris,
This Court has repeatedly recognized the critical effect that a fact finder’s perception of a witness’ bias may have on the outcome of a case.
See, e.g., State v. Chesnut,
Utah,
Under some circumstances the refusal to grant an attorney’s motion to withdraw as counsel might not be reversible error, but where, as here, the testimony was important to the defendant’s case, the refusal was not harmless error. When counsel makes a timely and good faith application to withdraw because of the need to preserve important evidence and not just to obtain some tactical advantage, a motion to withdraw should be granted. In sum, because Nesset-Sale wаs required to act for the defendant both as counsel and as a witness, the defendant was deprived of the value of untainted testimony favorable to his defense and of the services of an attorney who had not been compromised by acting both as attorney and witness.
II.
We turn next to the defendant’s claim that the evidence wаs insufficient to support the conviction. The defendant was convicted of obtaining services by deception in violation of U.C.A., 1953, § 76-6-409. Section 76-6-409 provides: “(1) A person commits theft if he obtains services which he knows are available only for compensation by deception, threat, force, or any other means designed to avoid the due payment therefore.” 2
Fraudulent intent is the gravamen of the offense of theft of services. Without proof of a criminal state of mind, the law would imprison people for mere failure to pay a debt, a practice not sanctioned in this or any other state of this nation. Utah Const. Article I, Section 16.
See, e.g., R.B. Cottonreeder v. State,
Ala.Crim.App.,
The defendant made an implied promise to pay for the lodging and services provided for the nights of February 12th, 13th, and 14th. However, the implied promise to pay and the subsequent failure *655 to pay the bill, standing alone, are legally insufficient to show the elements of deception required by Utah law. U.C.A., 1953, § 76-6-401(5)(e) provides that deception occurs when a person:
Promises performance that is likely to affect the judgment of another in the transaction, which performance the actor does not intend to perform or knows will not be performed; provided, however, that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.
(Emphasis added.) This statute requires that the prosecution prove fraudulent intent by more than just a mere failure to pay. Some additional evidence is required to sustain a finding of fraudulent intent. In short, a conviction cannot be sustained merely on proof that a person acquired lodging and failed to pay for it.
Numerous types of circumstantial evidence may show fraudulent intent. For example, cirсumstantial evidence that a defendant had no money and no prospect of acquiring sufficient money when it was time to pay might be sufficient, as would express false promises, or deception as to the identity of the renter. However, evidence that establishes no more than a breach of an express or implied contract is not sufficient to prove the crime of theft of services, and a jury should be so instructed. 3
Clearly, the defendant did not commit theft of the hotel Services for the nights of February 10th ¿nd 11th. He paid the charges for those days. The defendant’s conduct on February 15th, and possibly the 16th might, however, be found criminally culpable on retrial of this mattеr. It is on this point that Nesset-Sale’s testimony may prove critical.
III.
The final issue raised by the defendant is whether the defendant’s Sixth Amendment confrontation right was abridged by the trial judge’s limitations on the cross-examination of Borland by Nesset-Sale. The Sixth Amendment guarantees a criminal defendant the right to confront and cross-examine adverse witnesses. "Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested."
Davis v. Alaska,
We believe that those rulings improperly restricted the defendant’s right of cross examination. “There are few subjects, perhaps, upon which [the Supreme
*656
Court] and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.”
Pointer v. Texas,
The trial judge, of course, has discretion to limit cross-examination “to preclude repetitive and unduly harassing interrogation,”
Davis v. Alaska,
Because cross-examination for bias is “so vital a constitutional right,”
Davis v. Alaska,
The granting of immunity often raises serious problems as to the credibility of a witness.
Hoover v. State of Maryland,
Reversed and remanded for a new trial.
Notes
. None of the exceptions in DR 5 — 101(B)(1) through (4) apply here.
. By statute, "services” is defined to include use of hotel and restaurant facilities. § 76-6-409(3).
. Failure to pay raises a presumption of fraudulent intent in some jurisdictions.
See
Haw.Rev. Stat. § 708-830(4). (Supp.1984); Ill.Ann.Stat. ch. 71 § 4b (Smith-Hurd 1959); Iowa Code § 714.-1(3) (1983); Neb.Rev.Stat. § 28-515 (1979); N.D.Cent. Code § 12.1-23-03 (1976); Or.Rev. Stat. § 164.125(3) (1983); Pa.Stat.Ann. tit. 18, § 3926(a)(3) (Purdon 1983); Tex. Penal Code Ann. § 31.04(b)(1) (Vernon Supp.1985).
See also Prowell v. State,
Tex.Crim.App.,