State v. Soto

2018 UT App 147
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
A NTHONY S OTO,
Appellant.
Opinion
No. 20160087-CA
Filed August 9, 2018
Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 151902137
Teresa L. Welch and Lisa J. Remal, Attorneys
for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES DAVID N. M ORTENSEN and JILL M. POHLMAN concurred.
ORME, Judge:
¶1 	Anthony Soto was convicted of one count of aggravated
sexual assault, a first degree felony. Soto appeals, contending
that he was denied his constitutional right to an impartial jury
when 	a 	uniformed 	highway 	patrol 	officer 	and 	a 	court
information 	technology 	(IT) 	technician 	made 	inappropriate
comments to the jury in a nonpublic, court-employee elevator
inside the courthouse. We agree and therefore remand for a new
trial.

State v. Soto
20160087-CA 	2 	2018 UT App 147
BACKGROUND
¶2 	During a lunch break on the second day of trial, the bailiff
assigned 	to 	the 	trial 	escorted 	the 	jury 	to 	a 	nonpublic,
court-employee 	elevator 	inside 	the 	courthouse. 	When 	they
entered, 	a 	uniformed 	highway 	patrol 	officer 	was 	inside.
According to the bailiff, while they were in the elevator, the
highway patrol officer remarked, “[L]ooks like a jury, do you
want me to tell you how this ends?” As they descended, the
elevator stopped, and a court IT technician got on. The IT
technician then began to speak with the jury. The bailiff paid
little 	attention 	to 	the 	conversation 	but 	then 	heard 	the 	IT
technician 	ask, 	“[C]an 	you 	say 	guilty?” 	Understandably
concerned 	by 	what 	he 	had 	heard, 	the 	bailiff 	brought 	the
comments to the trial court’s attention.
¶3 	After lunch, and outside the presence of the jury, the trial
court relayed to the parties what had happened. The court
explained that it would speak to the jurors individually to find
out if any of them had heard what was said, and if they did,
whether the jurors thought they could remain impartial. If the
jurors answered that they had heard the comments but that the
comments did not affect their judgment, the court suggested it
would 	provide 	a 	curative 	instruction, 	explaining 	that 	the
highway patrol officer and IT technician were merely speaking
“off-the-cuff,” that they knew nothing about the case, and that
the jurors should not consider anything that they had heard in
the elevator.
¶4 	The court brought the jurors in one-by-one and asked
them to report what they had heard. Juror 1 said that she heard
the IT technician say, “[C]onvict him or hang him or it was
something like that.” Juror 2 reported that the highway patrol
officer remarked, “[L]et me tell you how this ends.” Juror 3
stated that the IT technician said, “You can already tell he’s
guilty.” Juror 4 related the following: “[The IT technician] said,
Hello jury, and . . . someone in the jury said, Do we have that

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20160087-CA 	3 	2018 UT App 147
look? And [the IT technician] said guilty?” Juror 5 stated that the
highway patrol officer said, “Just say he’s guilty.” According to
Juror 6, the highway patrol officer asked the jury, “Are they
guilty?” Juror 7 stated that the highway patrol officer made a
comment but that she could not remember what it was. She also
related the following: “[The IT technician] came in and said, Oh,
it looks like a jury. And I said, Do we all have that look?” Juror
8’s report was nearly identical to Juror 7’s, but he added that
when one of the jurors asked the IT technician how he could tell
that they were on a jury, the IT technician said “something to the
effect of . . . looks guilty or something.”
¶5 	Although 	each 	juror 	remembered 	hearing 	something
slightly different, all but one juror said that either the highway
patrol officer or the IT technician used the word “guilty” or
something similar. Jurors 1 and 2 offered that they took the
comments as jokes, and each of the jurors insisted that the
comments had no impact on their judgment. Nevertheless, Soto
moved for a mistrial, stressing that the gist of what the jurors
had heard touched on the sensitive subject of guilt and that the
comments 	were 	made 	by 	court 	staff 	in 	a 	nonpublic,
court-employee elevator. The court denied the motion because it
believed that the jurors took the comments as jokes and because
no juror hesitated in saying that they would remain impartial.
As a precaution, the court stated that it would provide a curative
instruction.
¶6 	When the jury returned, the court offered the curative
instruction. The court explained that the highway patrol officer’s
role at the court is to guard the Utah Supreme Court when it is in
session. The court added, “He has really no connection to the
court system at all. He’s not a bailiff, he’s nothing like that. He
drives his police car, parks downstairs where we park and he
goes up to guard [the Court]. So he would have absolutely no
knowledge of any part of this trial.” The court told the jury that
the other person who entered the elevator was an IT technician.
Concerning the IT technician, the court stated, “Now we know

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20160087-CA 	4 	2018 UT App 147
what IT guys know about trials and that’s pretty much nothing.
We know that our equipment dies off on occasion and he comes
in and fixes it.” The court finished the instruction by reiterating
that the highway patrol officer and the IT technician knew
nothing about the case and stated that they were just trying to be
funny, which they were not.
¶7 	At 	the 	close 	of 	trial, 	the 	jury 	found 	Soto 	guilty 	of
aggravated sexual assault. Soto appeals.
ISSUE AND STANDARDS OF REVIEW
¶8 	Soto contends that the trial court erred in denying his
motion for a new trial. “When reviewing a [trial] court’s denial
of a motion for a new trial, we will not reverse absent a clear
abuse of discretion[.]” State v. Allen, 2005 UT 11, ¶ 50, 108 P.3d
730 (quotation simplified). “At the same time, however, we
review the legal standards applied by the [trial] court in denying
the motion for correctness.” Id. (quotation simplified).1
ANALYSIS
¶9 	Soto contends that he was denied his constitutional right
to an impartial jury when the trial court denied his motion for a
mistrial after a highway patrol officer and a court IT technician
1. Soto also contends that his conviction was not supported by
sufficient evidence. But this contention is largely unpreserved,
and although he asserts that we can reach it under the rubric of
plain error, his plain error analysis is inadequately briefed. In
addition, the remnants of his argument that were preserved lack
merit. Because of the deficiencies in the briefing of this second
issue and because we remand for a new trial on the first issue in
any event, we do not further address the second issue.

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20160087-CA 	5 	2018 UT App 147
made inappropriate comments to the jury while in a nonpublic,
court-employee elevator. We agree.
¶10 	The United States Constitution and the Utah Constitution
guarantee a criminal defendant the right to an impartial jury.
U.S. Const. amend. VI; Utah Const. art. 1, § 12. These guarantees
require that verdicts be “above suspicion” as to whether any
juror might have been influenced by any inappropriate contact.
See State v. Anderson, 237 P. 941, 944 (Utah 1925). Because it is
difficult to show that a juror has been tainted by improper
contact, and because improper contact “may influence a juror in
ways he or she may not even be able to recognize,” our Supreme
Court has stated that “a rebuttable presumption of prejudice
arises from any unauthorized contact during a trial between
witnesses, attorneys or court personnel and jurors which goes
beyond a mere incidental, unintended, and brief contact.” State
v. Pike, 712 P.2d 277, 280 (Utah 1985).
¶11 	The parties disagree whether the rebuttable presumption
of 	prejudice 	applies 	to 	the 	unique 	set 	of 	facts 	before 	us.
According to the State, our Supreme Court has drawn a hard
line between court participants and court personnel, applying
the rebuttable presumption only if the contact was between a
juror and a participant in the defendant’s trial. Soto argues that
the rebuttable presumption of prejudice applies more broadly
and includes all court personnel, even if they are not directly
involved in the case.
¶12 	To be sure, in addressing the rebuttable presumption of
prejudice, 	the 	Court 	has 	at 	times 	made 	reference 	to 	court
participants and at times to court personnel. Indeed, it used both
terms in State v. Allen, 2005 UT 11, 108 P.3d 730. There, the Court
addressed whether Allen’s constitutional right to an impartial
jury had been violated where a juror’s spouse had told the juror
about the defense’s intention to move for a mistrial based on a
witness’s 	testimony 	and 	where 	the 	juror 	had 	relayed 	that
information to the other jurors. Id. ¶ 47.

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20160087-CA 	6 	2018 UT App 147
¶13 	In 	discussing 	the 	rebuttable 	presumption, 	the 	Court
articulated the following:
Allen 	correctly 	observes 	that 	when 	any
unauthorized 	contact 	during 	a 	trial 	between
witnesses, attorneys or court personnel and jurors goes
beyond a mere incidental, unintended, and brief
contact, 	there 	is 	a 	rebuttable 	presumption 	of
prejudice, and that to counteract this presumption
the prosecution must prove that the unauthorized
contact did not influence the juror. However, the
State 	also 	correctly 	notes 	that 	this 	rebuttable
presumption 	only 	applies 	when 	the 	contact 	is
between a juror and other court participants, not
jurors 	and 	third 	parties 	unrelated 	to 	the
proceedings.
Id. ¶ 51 (emphases in original) (quotation simplified). The Court
concluded that the unauthorized contact between the juror and
the juror’s spouse did not trigger the rebuttable presumption of
prejudice because the contact did not occur “between a juror and
court personnel.” Id. ¶ 53 (emphasis added).
¶14 	In our view, the Court’s references in Allen to “court
participants” were not meant to mark the boundaries of the
rebuttable presumption. Rather, the Court was highlighting a
key difference between the facts of Allen, where the conduct was
between a juror and a third party—the juror’s spouse—and other
cases in which our courts have applied a rebuttable presumption
of prejudice. See, e.g., State v. Erickson, 749 P.2d 620, 620–21 (Utah
1987) (contact between a juror and a witness); Pike, 712 P.2d at
279–80 (same); Anderson, 237 P. at 942–44 (same); Logan City v.
Carlsen, 799 P.2d 224, 225–26 (Utah Ct. App. 1990) (contact
between the jury and the bailiff assigned to the trial).
¶15 	We conclude that the rebuttable presumption of prejudice
applies both to inappropriate contacts between jurors and court

State v. Soto
20160087-CA 	7 	2018 UT App 147
participants and to inappropriate contacts between jurors and
court personnel. Indeed, our Supreme Court has stated as much.
See Allen, 2005 UT 11, ¶¶ 51, 53 (stating that the rebuttable
presumption of prejudice “applies when the contact is between a
juror and other court participants, not jurors and third parties
unrelated to the proceedings,” but later noting the contact in
question 	was 	not 	“between 	a 	juror 	and 	court 	personnel”)
(quotation simplified); Pike, 712 P.2d at 280 (“[A] rebuttable
presumption of prejudice arises from any unauthorized contact
during a trial between witnesses, attorneys or court personnel
and jurors.”). And the Court’s references to “court personnel”
should not be interpreted to mean in-court participants only.
There can, of course, be some overlap between the two terms,
but in our view, the Court has not cordoned off inappropriate
contacts between jurors and court personnel who are not directly
involved in a defendant’s trial from the reach of the rebuttable
presumption of prejudice.
¶16 	We stress that the overarching principle underpinning the
rebuttable 	presumption 	analysis 	is 	whether, 	despite 	the
inappropriate contact, the verdict remains “above suspicion.” See
Anderson, 	237 	P. 	at 	944. 	A 	conclusion 	that 	the 	rebuttable
presumption does not apply to inappropriate contacts with court
personnel in general would be at odds with this overarching
principle and would dilute the right to an impartial jury. For
example, 	such 	a 	conclusion 	would 	preclude 	a 	court 	from
applying the rebuttable presumption of prejudice to comments
made by a judge not assigned to the defendant’s case, even
though 	one 	can 	readily 	envision 	circumstances 	where 	such
comments would be highly inappropriate.2 The right to an
impartial jury is not so limited.
2. Consider a hypothetical encounter where another trial court
judge enters a nonpublic, court-employee elevator with the jury
and urges the jury to convict the defendant because, in the
(continued…)

State v. Soto
20160087-CA 	8 	2018 UT App 147
¶17 	Having clarified the scope of the rebuttable presumption
of 	prejudice, 	we 	now 	address 	whether 	the 	highway 	patrol
officer’s 	and 	the 	IT 	technician’s 	comments 	triggered 	the
presumption. The State does not dispute that the highway patrol
officer and the IT technician are court personnel, but our analysis
does not end there. As our Supreme Court has stated, the
presumption is not triggered unless the encounter “goes beyond
a mere incidental, unintended, and brief contact.” Pike, 712 P.2d
at 280.
¶18 	Although the contacts between the jury and the highway
patrol 	officer 	and 	the 	IT 	technician 	were 	relatively 	brief
encounters in an elevator, we cannot say that they were merely
incidental and unintended. In Carlsen, we held that a bailiff’s
brief 	remarks 	to 	the 	jury 	about 	the 	sentencing 	differences
between 	misdemeanors 	and 	felonies 	triggered 	a 	rebuttable
presumption of prejudice. 799 P.2d at 225–26. In reaching that
conclusion, we stressed that, although the bailiff’s comments did
not specifically relate to the defendant’s case, they “touched on
the extremely sensitive issue of sentencing.” Id. at 226.
¶19 	The comments made in the present case were even more
inappropriate than those made by the bailiff in Carlsen. Here, the
highway patrol officer and the IT technician intentionally spoke
to the jurors about the most sensitive issue of a criminal case:
whether the defendant is guilty. We cannot think of another
topic that would create a stronger appearance of impropriety.
Accordingly, we conclude that the contacts, while brief, were
(…continued)
judge’s experience, criminal defendants are “almost always”
guilty 	and 	deserve to 	be 	convicted 	“99 times out 	of 	100.”
Although it is unlikely that such an encounter would ever
happen, it would surely violate the right to an impartial jury and
trigger the rebuttable presumption of prejudice even though the
wayward judge was not a participant in the defendant’s trial.

State v. Soto
20160087-CA 	9 	2018 UT App 147
neither 	incidental 	nor 	unintended 	and 	that 	they 	therefore
triggered a rebuttable presumption of prejudice.
¶20 	We 	now 	consider 	whether 	the 	State 	rebutted 	the
presumption of prejudice. We conclude that it did not.
¶21 	The State insists that because each juror told the trial court
that the comments did not affect his or her impartiality and
because the court provided a curative instruction, the State
successfully rebutted the presumption of prejudice. But our
Supreme Court has stated that a juror’s denial that they were
influenced by an inappropriate contact “is not enough to rebut
the presumption of prejudice.” Pike, 712 P.2d at 281. Accord
Erickson, 749 P.2d at 621; Anderson, 237 P. at 944. As for the
curative instruction, it may have done as much harm as good.
¶22 	Regarding the highway patrol officer, the court stated that
he
usually 	comes 	when 	the 	Supreme 	Court 	is 	in
session because they have to guard those judges
[up] there. . . . He has really no connection to the
court system at all. He’s not a bailiff, he’s nothing
like that. He drives his police car, parks downstairs
where we park and he goes up to guard those
folks. So he would have absolutely no knowledge
of any part of this trial.
Telling the jury that the highway patrol officer works with the
Supreme 	Court 	and 	that 	he 	parks 	downstairs 	where 	court
personnel and judges park does not eliminate the possibility that
the highway patrol officer knew about Soto’s case or at least the
propriety of a guilty verdict. But more importantly, highway
patrol 	officers 	are 	regularly 	involved 	in 	criminal 	trials 	as
witnesses and are seen as authoritative figures—perhaps all the
more so in the case of one assigned to protect the justices of the
State’s highest court. Any comments made by a highway patrol
officer 	about 	a 	defendant’s 	guilt 	could 	influence 	a 	juror,

State v. Soto
20160087-CA 	10 	2018 UT App 147
consciously or not. Moreover, the bailiff assigned to Soto’s case
was 	rightly 	concerned 	about 	the 	highway 	patrol 	officer’s
comments and stated that the highway patrol officer remarked,
“[L]ooks like a jury, do you want me to tell you how this ends?”
By 	making 	that 	statement 	and 	then, 	moments 	later, 	not
correcting the IT technician when he suggested that Soto was
guilty, the highway patrol officer implied either that he knew
something about Soto’s case or that criminal defendants are
invariably 	guilty. 	The 	curative 	instruction 	and 	the 	jurors’
responses that they could remain impartial were not enough to
dispel the taint of impropriety.
¶23 	A rebuttable presumption of prejudice was triggered, and
it was not rebutted. The comments made by court personnel
leave us with no choice but to conclude that Soto’s right to an
impartial jury was violated.
CONCLUSION
¶24 	We 	conclude 	that 	Soto’s 	constitutional 	right 	to 	an
impartial jury was violated when the highway patrol officer and
the IT technician made inappropriate comments to the jury in a
nonpublic, court-employee elevator. Accordingly, we reverse
Soto’s conviction and remand for a new trial.