State v. Gardner

2007 UT 70
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, No. 20060281
Plaintiff and Respondent,
v.
F I L E D
Randy Shea Gardner,
Defendant and Petitioner. August 28, 2007
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Third District, West Jordan
The Honorable Terry Christiansen
No. 011103725
Attorneys: Mark L. Shurtleff, Att’y Gen., Kenneth A. Bronston,
Asst. Att’y Gen., James M. Cope, Salt Lake City, for
plaintiff
Margaret P. Lindsay, Julia Thomas, Orem, Patrick V.
Lindsay, Provo, for defendant
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On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
INTRODUCTION
¶1 Randy Shea Gardner attempted to smuggle illegal drugs
into the prison facility where he was an inmate. He was
convicted of distributing, offering, agreeing, consenting, or
arranging to distribute methamphetamine and was sentenced to
serve a one-to-fifteen-year prison term, to begin after the
prison term he was then serving expired. He challenges that
conviction in this appeal. He claims that he was not guilty of
the crime because a police informant and an undercover police
officer entrapped him.
¶2 After he was sentenced, Mr. Gardner appealed. He
sought summary reversal of his conviction because the cross-
examination testimony of one of the prosecution’s key witnesses,
Leland Clark, was missing from the record, apparently due to a
recording malfunction. Mr. Clark was a prison inmate turned

1 Mr. Buckley regularly delivered prescribed medications to
the inmates of the Uintah facility in blister packs or “little
brown envelope[s]” incident to his duties at the Utah State
Prison.
No. 20060281 2
informant who assisted Mr. Gardner with his efforts to bring
drugs into the prison. Mr. Gardner argued that the cross-
examination of Mr. Clark was key to the success of his entrapment
defense and that without it he could not receive a
constitutionally adequate appeal. The State countered with a
motion to remand to reconstruct the record, which the court of
appeals granted after denying Mr. Gardner’s motion.
¶3 After the trial court conducted a hearing and
reconstructed the record, the appeal returned to the court of
appeals. The court of appeals decided the appeal without
referring to the reconstructed record, holding that it did not
need to consider Mr. Clark’s reconstructed cross-examination
testimony because it was, at best, impeachment evidence and
irrelevant to an appeal based on a challenge to the sufficiency
of the evidence.
¶4 We agree with the court of appeals that when evidence
that is allegedly missing from an incomplete record is
impeachment evidence rather than substantive evidence, it is
appropriate for an appellate court to decide the case without
reference to the reconstructed record. Under these
circumstances, appellate courts may rely on the presumption that
the jury properly took into account conflicting evidence and
believed the evidence that supported the verdict. Accordingly,
we affirm Mr. Gardner’s conviction.
BACKGROUND
¶5 Mr. Gardner and Mr. Clark became friends while they
occupied adjoining cells and shared the same recreation schedule
at the Uintah maximum-security facility of the Utah State Prison.
According to Mr. Clark’s direct trial testimony, Mr. Gardner told
Mr. Clark that his friend “Don” (Donald Buckley, Jr.), a medical
technician at the Uintah facility, had delivered unprescribed
prescription pain medicine to him several times and that the
arrangement presented “a good opportunity to make some money.”1
Mr. Gardner suggested, however, that he did not have anyone to
supply illegal narcotics and that the medical technician who had
delivered the unprescribed pain medications probably would not do
it.

2 Mr. Pepper initially responded that he would “take it up
[his] chain of command.” Following the investigation, however,
Mr. Pepper agreed to write a favorable letter for Mr. Clark.
3 When an inmate is under mail cover, the prison
investigator “covering” that inmate receives a copy of letters
and envelopes the inmate sends or receives.
3 No. 20060281
¶6 Mr. Clark relayed this information to Kevin Pepper, an
investigator for the Department of Corrections, who had an office
in the Uintah facility. Mr. Clark and Mr. Pepper had known each
other since August 2000, when Mr. Pepper had transported
Mr. Clark back to Utah from California. Mr. Pepper directed
Mr. Clark to “keep his eyes and ears open” and to further
investigate the situation. Mr. Clark had reason to cooperate
with prison officials because he wanted to “compact” (transfer)
to a prison facility outside of Utah. To this end, he asked
Mr. Pepper to pen a letter to the Board of Pardons touting
Mr. Clark’s cooperation if the investigation was successfully
completed.2 Mr. Pepper then verified that medical technician
Donald Buckley was on Mr. Gardner’s visiting and telephone lists
and that Mr. Buckley had received several calls from Mr. Gardner
in the months preceding Mr. Clark’s conversation with
Mr. Gardner.
¶7 When Mr. Clark and Mr. Pepper met again, Mr. Clark
relayed that “he had discussed it with [Mr. Gardner] and
[Mr. Gardner] wanted to hook up and get a deal going.”
Mr. Pepper told Mr. Clark to inform Mr. Gardner that he had a
source by the name of “Kevin Gilmore” (Mr. Pepper’s undercover
alias) and to have Mr. Gardner call him using Mr. Clark’s
prisoner PIN number. Mr. Pepper then officially registered
Mr. Clark as a confidential informant.
¶8 Later, Mr. Pepper and Mr. Clark had a brief telephone
conversation. Mr. Pepper reminded Mr. Clark to have Mr. Gardner
contact him. Mr. Pepper also requested a mail cover3 on
Mr. Gardner. Mr. Pepper intercepted a letter Mr. Gardner sent to
Mr. Buckley in which Mr. Gardner wrote that he knew that
Mr. Buckley had “a little [money] problem” and that he “knew a
way to help solve that” which was “fairly safe.”
¶9 Mr. Gardner then used Mr. Clark’s PIN number to place a
ten-minute recorded call to Mr. Pepper. Mr. Gardner, referring
to himself as “Shea,” directed Mr. Pepper to call Mr. Buckley,
gave him Mr. Buckley’s telephone number, and told Mr. Pepper to
say, “Shea said to call.” Mr. Pepper first mentioned the subject
of drugs during that call. Mr. Pepper then asked whether

No. 20060281 4
specific quantities of “black” (slang for heroin) or “white”
(slang for methamphetamine) would “move” in the prison, and
Mr. Gardner indicated that he could “check around.”
¶10 According to Mr. Clark’s testimony, after Mr. Gardner
used the number, he reported to Mr. Clark that he and the
“supplier” (Mr. Pepper) had talked about getting “cocaine and
heroin lined up.” Mr. Clark reported that “[Mr. Gardner] was
pretty excited about it” and that Mr. Gardner was going to try to
enlist the medical technician, Mr. Buckley, to bring the drugs
into the prison. Mr. Clark told Mr. Gardner that he would help
sell the drugs within the prison and indicated that he wanted to
make some money to defray his out-of-state transfer costs.
Mr. Clark told Mr. Gardner that he thought it was important to
recruit Mr. Buckley. Mr. Gardner mentioned that it might be hard
to persuade Mr. Buckley to participate and that if Mr. Buckley
did participate, he would likely do it only once.
¶11 Mr. Gardner sent Mr. Buckley a letter that gave
Mr. Buckley the name and telephone number “for that guy I was
talking to you about.” Three days later, Mr. Gardner called
Mr. Pepper, and Mr. Pepper indicated that he was hesitant to
propose the plan to Mr. Buckley, unless Mr. Buckley already knew
about it. Mr. Gardner said that Mr. Buckley should have received
the letter he had sent a few days earlier. Mr. Gardner then
called Mr. Buckley and, according to Mr. Buckley’s testimony,
told him that he wanted him “to bring a manila envelope into the
prison after contacting this person in the letter.” Later that
afternoon, Mr. Gardner called Mr. Pepper and said, “I called to
let you know that I just talked to [Mr. Buckley].” Having been
assured by Mr. Gardner that Mr. Buckley had consented to
participate in the plan, Mr. Pepper told Mr. Gardner that he
would call Mr. Buckley.
¶12 In his conversation with Mr. Pepper, Mr. Gardner said
that he could “move” either “black” or “brown,” which Mr. Pepper
testified referred to types of heroin. That night, Mr. Buckley
called Mr. Pepper, and when Mr. Pepper told him that he had
methamphetamine and heroin to take into the prison, Mr. Buckley
immediately refused to become involved. When Mr. Buckley later
told Mr. Gardner that he had refused to bring drugs into the
prison, Mr. Gardner said that “he understood and he’d take care
of it.”
¶13 Several days later, Mr. Clark called Mr. Pepper and
informed him that the operation had been foiled because
Mr. Pepper had been exposed as law enforcement.

5 No. 20060281
¶14 Mr. Gardner asserted that he had not fully understood
the scheme and, to the extent he had understood that drugs would
be involved, that he had gone along with it only because he had
been cautioned by Mr. Pepper “not to get his a-- in a jam” and
that he was afraid Mr. Clark and the source could arrange for him
to be harmed in prison if he failed to participate. Mr. Clark
conceded that he had actively encouraged Mr. Gardner to obtain
the contraband, but he insisted that he had not coerced him.
¶15 Based on this account of events, the State of Utah
charged Mr. Gardner with two counts of distributing, offering,
agreeing, consenting, or arranging to distribute a controlled or
counterfeit substance, one count for methamphetamine and another
for heroin. The magistrate bound Mr. Gardner over for trial.
Mr. Gardner filed a motion to dismiss based on an entrapment
argument, which the trial court denied following an evidentiary
hearing.
¶16 Mr. Gardner renewed his entrapment motion at the close
of the State’s case at his trial. He claimed that the trial
court should reconsider the merits of his motion because the
trial testimony had revealed more evidence to support his
entrapment defense at trial than had been presented at the
preliminary hearing. Mr. Gardner also moved for a directed
verdict, claiming that the State failed to show an offer,
agreement, consent, or arrangement to distribute drugs. The
trial court denied both motions. A jury returned a verdict
finding Mr. Gardner guilty.
¶17 Mr. Gardner moved the court of appeals to summarily
reverse his conviction because Mr. Clark’s cross-examination
testimony did not appear in the record. Although he did not
indicate what he believed the missing cross-examination testimony
of Mr. Clark contained that would overcome the evidence leading
the jury to convict him, Mr. Gardner claimed that the missing
evidence created a constitutional defect mandating that his
conviction be vacated. The State responded to Mr. Gardner’s
motion with a motion to remand for the purpose of reconstructing
the missing portion of the record. The court of appeals denied
the petitioner’s motion and granted the State’s motion.
¶18 On remand to the trial court, the parties reviewed the
audiotapes of trial and confirmed that Mr. Clark’s cross-
examination, as well as a portion of the prosecution’s redirect
examination of him, did not appear in the record on appeal due to
a recording malfunction. Defense counsel was unable to recall
the exact content of his cross-examination of Mr. Clark, but he
believed that he had elicited more evidence of entrapment at
trial than he had at the initial entrapment hearing. He recalled

No. 20060281 6
that Mr. Clark’s testimony clearly established that Mr. Clark had
urged Mr. Gardner to make telephone calls in furtherance of the
plan to bring drugs into the prison and that Mr. Clark had moved
beyond mere persuasion and had coerced Mr. Gardner to participate
in the drug importation plan.
¶19 The prosecutor asserted that the missing parts of the
record could be adequately reconstructed from his notes of
defense counsel’s cross-examination of Mr. Clark at trial and the
entrapment hearing. From his notes, the prosecutor prepared in
some detail a recitation of Mr. Clark’s cross-examination
testimony. The prosecutor’s account of that testimony conceded
that Mr. Clark had presented some evidence that appeared to
support Mr. Gardner’s claim that he had been the victim of
entrapment, including admissions that (1) Mr. Clark was aware of
Mr. Buckley’s financial distress; (2) Mr. Clark never saw
Mr. Buckley bring any controlled substance into the prison; and
(3) Mr. Clark “urged [Mr.] Gardner to make the arrangements with
the phone call and everything, but [Mr.] Gardner was excited
about making some money.” The trial court found that although
the audiotape of Mr. Clark’s cross-examination was not part of
the record, the tape, the prosecutor’s proposed statement, and
Mr. Clark’s testimony on direct examination at trial and cross-
examination at the entrapment hearing constituted a satisfactory
reconstruction of the record. The trial court also concluded
that the incomplete record did not prejudice Mr. Gardner. The
court of appeals subsequently affirmed Mr. Gardner’s conviction
without reviewing the reconstructed record, reasoning that the
record was complete enough, even before the reconstruction, to
conduct an adequate review of the sufficiency of the evidence.
State v. Gardner, 2006 UT App 21U, para. 5.
STANDARD OF REVIEW
¶20 On certiorari, we review de novo the decision of the
court of appeals, not that of the trial court. State v.
Krukowski, 2004 UT 94, ¶ 10, 100 P.3d 1222.
DISCUSSION
¶21 Court records are vulnerable to mishap, though
infrequent and unfortunate when it occurs. Despite profound
advances in the technology, record keeping is still a human
enterprise, which accounts for the presence, in our rules and
cases, of procedures to follow when confronting a defect in a
record. See Utah R. App. P. 11(h) (“If any difference arises as
to whether the record truly discloses what occurred in the trial
court, the difference shall be submitted to and settled by that
court and the record made to conform to the truth. If anything

7 No. 20060281
material to either party is omitted from the record by error or
accident or is misstated, the parties by stipulation, the trial
court, or the appellate court, either before or after the record
is transmitted, may direct that the omission or misstatement be
corrected and if necessary that a supplemental record be
certified and transmitted.”); see also Bawden & Assocs. v. Smith,
646 P.2d 711, 713 (Utah 1982) (affirming that a district court
appropriately modified the record in question to accurately
reflect the proceedings below). Among the first tasks to be
undertaken when a defect in a court record is discovered is one
common to most potential calamities, natural or man-made: damage
assessment.
¶22 Mr. Gardner insists that the gap in the trial record
inflicted grievous damage to his due process rights. Mr. Clark’s
cross-examination testimony on the defense of entrapment, he
urges, was of such power that it rendered insubstantial all of
the State’s evidence that Mr. Gardner was a willing participant
in the drug smuggling plan. It is important to note that
Mr. Gardner does not claim that the record that was preserved is
bereft of sufficient evidence to permit a jury to conclude that
Mr. Gardner was not entrapped. He instead argues that the
State’s evidence, while adequate to carry the day in the face of
no opposition, was so overwhelmed by Mr. Clark’s cross-
examination testimony that it lost all of its probative force.
Not even Mr. Gardner claimed, however, that Mr. Clark’s cross-
examination testimony amounted to a repudiation or recantation of
any material portion of his direct testimony, a scenario that
could cause substantial prejudice and merit close appellate
scrutiny.
¶23 We generally assess as negligible the damage caused by
missing testimony that contradicts other testimony or impeaches
the credibility of witnesses. Testimony that contradicts and
impeaches implies that some evidence was presented that was of
sufficient substance to merit contradiction or impeachment.
Thus, a challenge to sufficiency of the evidence founded on
missing cross-examination testimony is inherently suspect. For
this reason, the court of appeals properly concluded that it
could conduct its review of the merits of Mr. Gardner’s
sufficiency of the evidence appeal without reference to the
missing or reconstructed record.
¶24 An appellate court may overturn a criminal conviction
for insufficiency of evidence only “when it is apparent that
there is not sufficient competent evidence as to each element of
the crime charged for the fact-finder to find, beyond a
reasonable doubt, that the defendant committed the crime.” State
v. Boyd, 2001 UT 30, ¶ 13, 25 P.3d 985 (internal quotation marks

No. 20060281 8
and citation omitted). When conducting a sufficiency of the
evidence review, it is the duty of the reviewing appellate court
to perform its “review in the context of the whole record, or at
least that portion of the record to which its attention was drawn
by the appellant’s marshaling obligation or the appellee’s
response to the appellant’s marshaled evidence.” See S.B.D. v.
State (State ex rel. Z.D.), 2006 UT 54, ¶ 39, 147 P.3d 401. Of
course, this duty presumes that an intact record exists. It is
nevertheless appropriate in the face of a defective record for an
appellate court to honor certain credible assumptions relating to
the conduct of the trial, including the assumption that the jury
believed evidence supporting its verdict and discounted
conflicting evidence. Boyd, 2001 UT 30, ¶ 14.
¶25 It is therefore not an error to conduct a sufficiency
of the evidence review when a piece of the record is missing. If
an appellant’s best case is that he elicited contradictory
evidence that is missing from the record, as was the case here,
then an appellate court can rely on the presumption that the jury
disbelieved the evidence in conflict with the jury verdict and
find that there is evidence sufficient to support the jury’s
findings.
¶26 We agree with the court of appeals that a sufficiency
of the evidence inquiry ends if “‘there is some evidence,
including reasonable inferences, from which findings of all the
requisite elements of the crime can reasonably be made.’” State
v. Gardner, 2006 UT App 21U, para. 6 (quoting Boyd, 2001 UT 30,
¶ 16). We further endorse the court of appeals’ core
determination that the record in this case, despite the missing
cross-examination testimony, was “complete enough to determine
that the State presented sufficient evidence for a jury to find
that [Mr.] Gardner acted freely and voluntarily, and was not
entrapped into committing the offense.” Id. at para. 7.
¶27 As noted above, Mr. Gardner does not maintain that the
record upon which the court of appeals relied was so barren of
evidence of his guilt as to warrant reversal of his conviction.
The record is indeed sufficient to lead a conscientious jury to
conclude that Mr. Gardner was not entrapped. Mr. Clark testified
on direct examination that Mr. Gardner had initiated the idea of
smuggling drugs into the prison to earn some extra money. In his
testimony on redirect examination, Mr. Clark explained that he
“[did not] recall urging [Mr. Gardener to call the medical
technician] the first time.” Mr. Clark further testified, “I
don’t recall I ever urg[ed] him.” Mr. Clark explained that
Mr. Gardner “was always a hundred percent ready to go, pretty
excited about [unintelligible] urging him.” When asked how
persuasive he had to be to convince Mr. Gardner that he had “a

9 No. 20060281
rich connection on the outside,” Mr. Clark responded: “I didn’t
have to be. Mr. Gardner initiated this--this bringing drugs in
to begin with . . . . He was looking for a connection on the
streets--somebody to pick the dope up.” Mr. Gardner’s attorney
did not conduct a recross-examination. Moreover, Mr. Pepper’s
testimony about his phone conversation with Mr. Gardner reflects
that Mr. Gardner was not coerced into carrying out the plan to
bring drugs into the prison.
CONCLUSION
¶28 We hold that the court of appeals did not err in
reviewing the case for sufficiency of the evidence without
reference to the reconstructed record because the missing
evidence was, at best, contradictory impeachment evidence, rather
than substantive evidence. Accordingly, we affirm Mr. Gardner’s
conviction.
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¶29 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.