2023 UT App 159

Utah Ct. App.

2023

STATE OF UTAH, Appellee, v. RODNEY EARL SORENSON, Appellant.

No. 20210884-CA

THE UTAH COURT OF APPEALS

Filed December 29, 2023

2023 UT App 159

JUDGE AMY J. OLIVER authored this Opinion, in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

Second District Court, Ogden Department
The Honorable Joseph M. Bean
No. 211901270

Emily Adams and Hannah K. Leavitt-Howell, Attorneys for Appellant

Sean D. Reyes and Lindsey L. Wheeler, Attorneys for Appellee

Opinion

OLIVER, Judge:

¶1 After he was found with folding knives and a hatchet in his car, Rodney Earl Sorenson—who was on probation for a prior drug offense—was charged with possession of a dangerous weapon by a restricted person. Sorenson first moved to bifurcate his trial, and the district court denied the motion. He also moved for a mistrial after testimony was introduced about an inflammatory statement he allegedly made about his probation agent (Agent). The district court denied that motion too. On appeal, Sorenson challenges the court’s denial of these motions and also argues defense counsel (Counsel) was ineffective for failing to object to testimony Agent gave about whether the knives and hatchet were dangerous weapons. We affirm Sorenson’s conviction.

BACKGROUND

¶2 Following a drone sweep of a secluded, wooded area, police officers discovered Sorenson “resting” in the driver seat of his car. The car was “messy” and had “a bunch of stuff in it.” Because Sorenson was on probation for a prior drug possession offense, Agent was dispatched to the scene. When Agent arrived, she asked Sorenson if he had any weapons in the car. Sorenson said no, but then he pulled a folding knife out of the driver-side door compartment. Agent searched the car and discovered two more folding knives on the driver-side floorboard and a hatchet on the back seat. Sorenson indicated he was homeless and unemployed and had used methamphetamine a few days prior. Agent arrested him.

¶3 Sorenson was charged with one count of possession of a dangerous weapon by a restricted person, a third degree felony, due to his probation status. Sorenson moved to bifurcate the trial, arguing his restricted-person status was an enhancement or aggravating factor that should be tried separately from the issue of possession. During argument on his bifurcation motion, Sorenson suggested a bench trial on the restricted-person element or alternatively offered to stipulate to that element. The State argued Sorenson’s restricted-person status was “intrinsically intertwined” with the charge and that excluding the evidence would require it to “dance around” and “almost hid[e] information from the jury” as to why Agent was on the scene in the first place. The court denied Sorenson’s bifurcation motion, expressing that it was “concerned about the trial becoming a very, very difficult navigation around the restricted-person status,” recognizing that the status is “an element of the offense.”

¶4 Sorenson later offered to stipulate that he was “a restricted person for purposes of the trial and [to] instruct the jury to accept that stipulation.” But the State declined to accept the stipulation because it was concerned about restricting its witnesses from testifying about the events.

¶5 At trial, the State’s first witness was a police officer (Officer). Officer testified about discovering Sorenson in his car and recalled that when he informed Sorenson that Agent was on her way, Sorenson said, “She’s a fucking cunt.” Based on this statement, Counsel moved for a mistrial, stating there was body camera footage of Officer’s interaction with Sorenson and it “never mentioned those words.” The court denied the motion for a mistrial because the statement could be impeached by playing the footage. The court then allowed Counsel a short voir dire examination of Officer to determine the portion of the footage where the slur was allegedly said. The defense later played a “specific snippet” of the footage for the jury.¹ After reviewing the footage, Officer admitted he thought Sorenson said “motherfucking cunt” but Sorenson was “turn[ing] away” as he said it, “so it may just have been ‘motherfucker.’”

¶6 The State then called Agent. She indicated that she supervised Sorenson’s probation on his prior drug possession charge and read the portion of the probation agreement regarding weapons into the record. She testified about being called to the scene by Officer and finding the knives and hatchet in Sorenson’s car. Throughout her testimony, Agent made several statements about whether the folding knives were dangerous weapons. When asked how she reacted to Sorenson grabbing the knife from the driver-side door, Agent testified, “I said ‘Don’t touch it.’” When asked why she said this to Sorenson, she stated, “Because it’s a dangerous weapon.” Later, the State reminded her, “And you testified that knives are a dangerous weapon,” to which Agent said, “Yes. Their intended purpose is to cut.” The State then asked her again why she told Sorenson to put the knife down, to which Agent said, “Because it’s a dangerous weapon, and if he were to come at me with that, he could kill me.” Counsel then asked Agent whether all knives would be considered dangerous weapons in the hands of a probationer. Agent stated that probationers are “allowed to have kitchen knives,” but “those kitchen knives belong in their kitchen.” Agent explained that if she found knives “in their bedroom or their bathroom, that now becomes a dangerous weapon because it’s left the area where it is intended to be used.” And Agent testified, “If you ask not just my opinion, any agent’s opinion or a police officer’s, a knife is a dangerous weapon.”

¶7 Sorenson’s only witness was his brother (Brother). Brother testified about retrieving the contents of Sorenson’s car. Brother photographed the items, and at trial, he testified that the items—including a duffel bag full of clothing, a bag of tools, a sleeping bag, and a tent—belonged to Sorenson.

¶8 In the end, the parties agreed to stipulate to Sorenson’s restricted-person status in a jury instruction that read, “Parties stipulate that under Utah law, a Category I restricted person is a person who is on probation for possessing a controlled substance. They further agree that Rodney Sorenson qualified as a Category I restricted person at the time of the events in question.” The jury found Sorenson guilty, and he was sentenced to an indeterminate prison term of up to five years.

ISSUES AND STANDARDS OF REVIEW

¶9 Sorenson raises three issues on appeal. First, he argues the district court should have granted his motion to bifurcate his trial. “We review the district court’s failure to bifurcate a criminal trial for an abuse of discretion.” State v. Bragg, 2013 UT App 282, ¶ 15, 317 P.3d 452.

¶10 Next, Sorenson argues the court erroneously denied his motion for a mistrial. We also “review the denial of a motion for a mistrial under an abuse of discretion standard” and “will not find such abuse unless the incident so likely influenced the jury that the defendant cannot be said to have had a fair trial.” State v. Silva, 2019 UT 36, ¶ 36, 456 P.3d 718 (cleaned up).

¶11 Finally, Sorenson argues Counsel was ineffective in failing to object to Agent’s testimony calling the knives and hatchet dangerous weapons. “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. Carranza, 2023 UT App 72, ¶ 32, 533 P.3d 850 (cleaned up), cert. denied, Nov. 14, 2023 (No. 20340764).

ANALYSIS

I. Bifurcation

¶12 Sorenson argues his trial should have been bifurcated, allowing the jury to decide first whether he intentionally or knowingly possessed a dangerous weapon before separately determining whether he was a restricted person. Because of their “considerable discretion to administer the business of [their] docket[s] and determine how a trial should be conducted,” State v. Rhinehart, 2006 UT App 517, ¶ 19, 153 P.3d 830 (cleaned up), district courts have the power to order the separate trial “of any claim . . . or of any separate issue” “in furtherance of convenience or to avoid prejudice,” Utah R. Civ. P. 42(b).²

¶13 Despite the discretionary nature of this decision, Sorenson argues the district court was required to bifurcate his trial. Relying on our supreme court’s decision in State v. Wareham, 772 P.2d 960 (Utah 1989), Sorenson argues his restricted-person status is an aggravation or enhancement to his charge that required bifurcation from the guilt phase of his trial. See id. at 962–65. Even assuming that Sorenson’s restricted-person status is an aggravating factor under Wareham, however, our supreme court recognized bifurcation of such aggravating factors is not an absolute requirement in State v. Reed, 2000 UT 68, 8 P.3d 1025. The Reed court concluded that bifurcation may be avoided if

(1) the evidence of the aggravating factors is offered for a noncharacter purpose under rule 404(b) [of the Utah Rules of Evidence]; (2) the evidence is relevant under rule 402; and (3) the evidence has probative value that significantly outweighs the danger it poses of unfair prejudice, as required by rule 403.

Id. ¶ 25. Thus, Reed “expressly recognized that bifurcation is not required when the aggravating conviction is otherwise admissible at trial.” State v. Bragg, 2013 UT App 282, ¶ 34, 317 P.3d 452. Evidence of Sorenson’s probation status was admissible at trial under this formulation.

¶14 First, the evidence does not pose a problem under rule 404(b) of the Utah Rules of Evidence. Rule 404(b) dictates that evidence of “a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in conformity with the character.” Utah R. Evid. 404(b)(1). But this rule “applies only to evidence that is extrinsic to the crime charged.” State v. Main, 2021 UT App 81, ¶ 18, 494 P.3d 1056 (cleaned up). When evidence of prior acts is “part of the case narrative” and has “important probative value that bears directly on the crime charged,” it is considered “inextricably intertwined” with the charged offense. Id. (cleaned up). Evidence forming such an “integral part of the charged conduct” is “beyond the reach of rule 404(b).” State v. Hood, 2018 UT App 236, ¶¶ 32–33, 438 P.3d 54; accord Main, 2021 UT App 81, ¶ 19.

¶15 Here, Sorenson’s probation status was necessary to prove a central element of the crime charged—his status as a Category I restricted person. See Utah Code § 76-10-503(2)(b). And it was integral to the narrative of the case to explain why Agent was called to the scene and why Sorenson’s possession of the knives and hatchet was a punishable offense.³ This evidence was inextricably intertwined with and integral to the charged offense. See Hood, 2018 UT App 236, ¶ 32. Thus, rule 404(b) does not apply, and we need not address it further.

¶16 Second, the evidence of Sorenson’s probation status must also be relevant under rule 402. See Utah R. Evid. 402 (“Irrelevant evidence is not admissible.”). Evidence is relevant if “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Id. R. 401. Here, evidence of Sorenson’s probation status made it more probable that Sorenson was a Category I restricted person, which was an element of the charged offense and thus, a consequential fact to the case. As such, the probation evidence was highly relevant and admissible under rule 402.

¶17 Finally, the court may still “exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice.” Utah R. Evid. 403. “Unfair prejudice results only where the evidence has an undue tendency to suggest decision upon an improper basis.” State v. Green, 2023 UT 10, ¶ 78, 532 P.3d 930 (cleaned up). “We therefore indulge a presumption in favor of admissibility.” Id.

¶18 Here, evidence of Sorenson’s probation status was admissible under rule 403. The evidence had a high probative value to the case. Sorenson’s status as a probationer was essential to explain why Agent was called to search Sorenson’s car. And it was essential to explain why having tools like folding knives and a hatchet in his car was a criminal offense at all.

¶19 Any prejudice the evidence may have caused did not substantially outweigh this high probative value. The only element in dispute at Sorenson’s trial was whether the knives and hatchet in his car qualified as “dangerous weapons” under Utah Code section 76-10-503(2). Utah Code section 76-10-501(6)(b)(i)–(vi) lists six statutory factors for determining whether an object qualifies as a dangerous weapon. To aid the jury in applying these statutory factors, the knives and hatchet found in Sorenson’s car were introduced as trial exhibits. Guided by the statutory factors and its own examination of the knives and hatchet, it is unlikely the jury would have relied upon Sorenson’s status as a probationer in determining whether the tools qualified as dangerous weapons. “We acknowledge that evidence of a defendant’s custody status can carry a risk of prejudice.” State v. Bermejo, 2020 UT App 142, ¶ 38, 476 P.3d 148. But whatever prejudice the evidence of Sorenson’s probation status may have caused does not “substantially outweigh” its high probative value. Utah R. Evid. 403 (emphasis added).

¶20 In sum, Sorenson’s probation status was admissible evidence under rules 404(b), 402, and 403. Thus, the district court was not required to bifurcate his trial and did not abuse its discretion in declining to do so.

II. Mistrial

¶21 According to Sorenson, the district court abused its discretion in denying his motion for a mistrial. He argues the “fairness of [his] trial was compromised” because Officer falsely testified that Sorenson called Agent a “fucking cunt.” But a mistrial is a “drastic remedy,” State v. Roberts, 2019 UT App 9, ¶ 15, 438 P.3d 885, which should be granted only “where the circumstances are such as to reasonably indicate that a fair trial cannot be had and that a mistrial is necessary to avoid injustice,” State v. Bermejo, 2020 UT App 142, ¶ 75, 476 P.3d 148 (cleaned up). Thus, mistrial is “warranted only when no reasonable alternatives exist.” Roberts, 2019 UT App 9, ¶ 15 (cleaned up). And we reverse a district court’s denial of a mistrial motion only if “the incident so likely influenced the jury that the defendant cannot be said to have had a fair trial.” State v. Silva, 2019 UT 36, ¶ 36, 456 P.3d 718 (cleaned up). Such is not the case here.

¶22 Sorenson moved for a mistrial immediately after Officer testified that Sorenson called Agent a “fucking cunt.” The district court denied the motion, finding the testimony could be easily impeached by playing the footage of the conversation. The court permitted Counsel a short voir dire with Officer to determine what portion of the footage contained Sorenson’s alleged statement. The relevant portion of the footage was then played in court. While the appellate record does not contain the footage or its transcript, only a “specific snippet” was introduced at trial. The jurors were able to hear what Sorenson said (or didn’t say) for themselves.

¶23 And after playing the footage, Counsel questioned Officer about what he heard, asking, “[Y]ou believe that he might have said the C word, correct?” Officer said yes but eventually admitted, “But now you’re making me question it.” Officer also admitted that Sorenson “turned away a little bit” while he spoke to Officer, making it difficult to hear what he said clearly. Counsel also got Officer to admit that he did not mention Sorenson’s statement about Agent in his incident report because he “didn’t feel it was important enough” to include. Such rigorous cross-examination “mitigate[s] any potential harm caused by . . . allegedly improper testimony” when it exposes inconsistencies and causes a witness to “undermin[e] his own earlier claim.” State v. Suhail, 2023 UT App 15, ¶¶ 133–34, 525 P.3d 550, cert. denied, 531 P.3d 730 (Utah 2023). This is exactly what Counsel did, thus casting doubt on Officer’s initial testimony about what he heard Sorenson say about Agent.

¶24 Here, the jury’s viewing of the footage and Counsel’s beneficial cross-examination of Officer provided a reasonable alternative to the “strong medicine” of a mistrial. State v. Whytock, 2020 UT App 107, ¶ 16, 469 P.3d 1150, cert. denied, 481 P.3d 1043 (Utah 2021).⁴ We are not convinced that Officer’s testimony about Sorenson’s supposed statement so influenced the jury as to prevent Sorenson from receiving a fair trial. Thus, the district court did not abuse its discretion in denying his motion for a mistrial.⁵

III. Ineffective Assistance of Counsel

¶25 Lastly, Sorenson argues Counsel rendered ineffective assistance in failing to object when Agent called the knives and hatchet found in Sorenson’s car “dangerous weapons.” To prevail on an ineffective assistance of counsel claim, a defendant must “demonstrate that (1) counsel’s representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense.” State v. Carter, 2023 UT 18, ¶ 27, 535 P.3d 819. “Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address [Sorenson’s] claim under either prong.” State v. Nunes, 2020 UT App 145, ¶ 18, 476 P.3d 172 (cleaned up), cert. denied, 485 P.3d 943 (Utah 2021). We decide, then, on prejudice.

¶26 Proving prejudice is a “relatively high hurdle” and requires showing “a reasonable probability exists that but for [trial counsel’s] deficient conduct [the] defendant would have obtained a more favorable outcome.” Id. ¶ 21 (cleaned up). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” State v. Green, 2023 UT 10, ¶ 106, 532 P.3d 930 (cleaned up). Sorenson has not shown such a probability. He argues Agent’s testimony about the knives and hatchet was “couched as a legal conclusion” and improperly “answered the specific question the jury would later need to decide,” harming his defense. But we are not convinced that, had Counsel objected to Agent’s testimony about dangerous weapons, the outcome of Sorenson’s trial would have been different.

¶27 Importantly, Agent’s testimony was elicited largely in the context of Sorenson’s probation agreement, which Agent read in court and which prohibited Sorenson from owning, possessing, or controlling “explosives, firearms, archery equipment, or crossbows, or any dangerous weapon.” (Emphasis added.) Much of her testimony was made in reference to the probation agreement’s definition of a dangerous weapon, not the specific statutory language of the charged offense.

¶28 And regardless, the court’s instructions to the jury mitigated any potential prejudice resulting from Agent’s testimony. The jury was instructed that its role as fact finder was “to decide from the evidence what the facts are” and to “take the law . . . , apply it to the facts, and decide if the prosecution has proved the defendant guilty beyond a reasonable doubt.” Jury Instruction 31 defined “dangerous weapon” for the jury as “an object that in the manner of its use or intended use is capable of causing death or serious bodily injury.” This wording exactly tracks the statutory language of the offense. See Utah Code § 76-10-501(6)(a). And Jury Instruction 32 laid out the six statutory factors the jury was to consider when making such a determination—also exactly tracking the language of the statute. See id. § 76-10-501(6)(b)(i)–(vi). Sorenson argues Agent’s testimony usurped the jury’s role, allowing them to rely on her “assessment of the items rather than carefully analyzing [these] statutory factors.” But apprised of its role and instructed on the legal definition of “dangerous weapon,” the jury was informed that it was to make the ultimate determination of whether the knives and hatchet were dangerous weapons within the meaning of the statute—not Agent.

¶29 What’s more, the jury saw the folding knives and hatchet found in Sorenson’s car when the tools were introduced as trial exhibits. The jurors were able to evaluate for themselves whether the tools qualified as dangerous weapons under the statutory factors. Given this, our confidence in Sorenson’s conviction has not been undermined. Even had Counsel objected to Agent’s testimony, we do not see a reasonable probability of a different outcome at trial. Because he cannot show he was prejudiced by Counsel’s failure to object to Agent’s testimony, Sorenson’s ineffective assistance of counsel claim fails.

CONCLUSION

¶30 The district court did not abuse its discretion in denying Sorenson’s bifurcation motion because bifurcation was not required. Nor did it abuse its discretion in denying Sorenson’s motion for a mistrial when another, less drastic alternative was available. Further, Counsel did not render ineffective assistance in failing to object to Agent’s testimony about dangerous weapons because Sorenson was not prejudiced. Accordingly, we affirm Sorenson’s conviction.

Notes

A transcript of the footage was not included in the appellate record.

The Utah Rules of Civil Procedure “shall also govern in any aspect of criminal proceedings where there is no other applicable statute or rule, provided, that any rule so applied does not conflict with any statutory or constitutional requirement.” Utah R. Civ. P. 81(e).

The State was not required to accept Sorenson’s offer to stipulate to his status as a restricted person. Indeed, “the prosecution may refuse an offer to stipulate to preserve its ability to tell a complete story.” , abrogated on other grounds by , and ; see also (concluding that “stipulating to a fact does not cut off the State’s right to present evidence depicting the context of that fact”).

Sorenson contends that playing the footage was not a reasonable alternative because it forced him to introduce prejudicial information and to alter his defense strategy mid-trial. Because Counsel had the opportunity to question Officer about what portion of the footage was relevant, and only that “specific snippet” of the footage was played, we are not convinced that additional prejudicial information was presented to the jury. And we are also not convinced by Sorenson’s claim that playing the footage prejudiced him by forcing him to alter his defense strategy. Nimbly shifting strategy at trial is a standard expectation of Counsel’s job. C.f. (noting that “strategies adopted by counsel are not static and can change at any moment during trial”), cert. denied, 525 P.3d 1264 (Utah 2022). Thus, these arguments are unavailing.

Sorenson also suggests in passing that the district court should have offered a curative instruction to minimize harm caused by Officer’s testimony. But this cursory argument—addressed in just three sentences in his opening brief—is inadequately briefed, so we do not address it. See Utah R. App. P. 24(a)(8) (“The argument must explain, with reasoned analysis supported by citations to (continued…)