Salt Lake City v. Almansor

2014 UT App 88
_________________________________________________________
THE UTAH COURT OF APPEALS
SALT LAKE CITY,
Plaintiff and Appellee,
v.
THAMER JABER ALMANSOR,
Defendant and Appellant.
Memorandum Decision
No. 20121016-CA
Filed April 24, 2014
Third District Court, Salt Lake Department
The Honorable Judith S.H. Atherton
No. 111907345
Barton J. Warren, Attorney for Appellant
Padma Veeru-Collings and Richard T. Jorgensen,
Attorneys for Appellee
JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES GREGORY K. ORME and J. FREDERIC VOROS JR.
concurred.
ROTH, Judge:
¶1 Thamer Jaber Almansor appeals his conviction for
misdemeanor sexual battery on three grounds. First, he contends
that the trial court committed plain error in failing to adequately
question a potential juror, who later became the jury foreperson,
during voir dire. Second, Almansor argues that the trial court
either abused its discretion or committed plain error when it
proceeded to trial despite a defense witness’s failure to appear.
Finally, he asserts that the jury’s verdict was produced by undue
pressure or coercion by the trial court. We affirm.

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I. Juror Voir Dire
¶2 Almansor contends that the trial court erred when it
failed to adequately question Juror 10, who later became the jury
foreperson, about any bias or a conflict of interest inherent in his
employment. Almansor himself failed to ask the court to seek
further information from this juror and so claims the court
plainly erred in failing to do so on its own.
¶3 During voir dire, Juror 10 reported that he was an
associate director at Salt Lake County Criminal Justice Services.
In response to the trial court’s question about whether any jurors
had family members or close friends in law enforcement, Juror
10 explained that in his employment, he had ‚contact with
prosecutors, defense attorneys, police officers, [and] county
government related to criminal justice.‛ In response to a follow-
up question, however, he assured the court that nothing about
his employment ‚would affect *his+ ability to be impartial in this
jury . . . to any degree.‛ Defense counsel did not request that the
court ask any additional questions of this juror, nor did he ask
that Juror 10 be removed from the panel for cause. As a
consequence, Almansor has not preserved for review his claim
about bias or conflict of interest. See Turner v. University of Utah
Hosps. & Clinics, 2013 UT 52, ¶ 32, 310 P.3d 1212 (stating that a
challenge based on juror bias is preserved so ‚long as (a) all of
the party’s peremptory challenges were used and (b) a juror who
was previously challenged for cause ends up being seated on the
jury‛);1 State v. King, 2006 UT 3, ¶ 18, 131 P.3d 202 (‚*O+bjections
to the trial court’s conduct during voir dire are not exempt from
the preservation rule.‛).
1. Although the City contends that Almansor has waived any
claim regarding Juror 10’s selection for the jury under the cure-
or-waive rule, that rule has been replaced by the one adopted in
Turner v. University of Utah Hospitals & Clinics, 2013 UT 52, ¶ 31,
310 P.3d 1212.

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¶4 Accordingly, we will only consider whether the court
committed plain error in failing to question Juror 10 further. To
prevail on a claim of plain error, an appellant must establish that
‚(i) *a+n error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful, i.e., absent the error,
there is a reasonable likelihood of a more favorable outcome for
the appellant, or phrased differently, our confidence in the
verdict is undermined.‛ State v. Dunn, 850 P.2d 1201, 1208–09
(Utah 1993).
¶5 The Utah Supreme Court has outlined the trial court’s
responsibilities when a prospective juror’s response during voir
dire raises a question of potential bias and trial counsel has
neither objected for cause nor requested follow-up questioning.
Recognizing that ‚*i+t is generally inappropriate for a trial court
to interfere with counsel’s conscious choices in the jury selection
process,‛ the supreme court has held that a trial court need not
sua sponte remove the juror for cause or otherwise act to rebut
the inference of bias unless ‚the juror has expressed a bias . . . so
strong or unequivocal as to inevitably taint the trial process.‛
King, 2006 UT 3, ¶¶ 22–23 (omission in original) (citation and
internal quotation marks omitted).
¶6 Almansor asserts that Juror 10’s employment with Salt
Lake County Criminal Justice Services on its face indicated a
‚strong or unequivocal‛ bias sufficient to have warranted
further questioning or even removal by the trial court. Almansor
attempts to paint Juror 10 as biased in favor of the City because
of his frequent interactions with law enforcement, prosecutors,
and the court in his employment. Juror 10, however, informed
the court that he also interacted frequently with defense
attorneys, indicating that he was familiar with both sides in the
criminal process. Furthermore, Juror 10’s response did not
indicate that he had any predisposition to favor or believe one
side over the other. To the contrary, he stated that his
professional associations would not ‚to any degree‛ affect his
ability to remain neutral. Thus, we conclude that ‚*w+hile *Juror
10’s+ responses in this case have been sufficient to support a

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request by counsel for additional questioning,‛ they were not
‚so strong or unequivocal as to inevitably taint the trial process.‛
See id. ¶ 24 (citation and internal quotation marks omitted).
Thus, the trial court’s failure to further investigate Juror 10 sua
sponte or remove him for cause did not amount to plain error.
II. Defense Witness’s Failure to Appear
¶7 Almansor next claims that the trial court either abused its
discretion or committed plain error in proceeding to trial after
Almansor informed the court that one of his witnesses had failed
to appear. The City asserts that Almansor has waived this claim
because he twice represented to the court his readiness to
proceed to trial and he failed to request a continuance of trial.
¶8 On the morning of trial, Almansor and the City each
represented to the trial court that they were ready to proceed to
trial. Jury selection commenced, and it was not until after the
jury had been impaneled and sworn that Almansor first
informed the trial court that one of his witnesses had not arrived.
The court adjourned for a twenty-minute recess so that
Almansor could try to contact the witness. After he was unable
to do so, the trial court said, ‚*W+e’ll just go on with the trial, it is
what it is, I mean, that happens.‛ Almansor did not request a
continuance or ask the court to take any steps to procure the
witness (such as issuing a bench warrant, for example); rather,
he simply indicated his assent when the court then asked if the
defense was ready to proceed.
¶9 Almansor’s claim that the trial court abused its discretion
in proceeding to trial fails for a number of reasons. First,
Almansor has not demonstrated that the witness had in fact been
subpoenaed for his trial, even though he describes her as
‚hostile‛ due to her friendship with the complaining witness.
The only subpoena in the record required the witness’s
appearance at an earlier trial setting that had been continued,
and Almansor has not pointed to any other place in the record
that supports his contention that he subpoenaed the witness for

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this setting.2 So Almansor has not shown that he subpoenaed the
witness for trial. And if he did not, he cannot fault the court for
his own failure to secure the witness’s appearance. See Utah
Code Ann. § 78B-1-129 (LexisNexis 2012) (defining subpoena as
the ‚process by which the attendance of a witness is required . . .
at a particular time and place to testify‛); id. § 78B-1-130
(outlining the subpoenaed witness’s obligation to appear at the
appointed time and place).
¶10 Second, and more importantly, even if Almansor did
subpoena the witness, once he was aware that she had not
appeared, he failed to request a continuance or otherwise ask the
court to procure her appearance. Almansor asserts that such a
motion would have been futile because the trial court had
already indicated its intent to move forward with trial when the
court said, ‚*W+e’ll just go on with the trial, it is what it is . . . ,
that happens.‛ The court, however, merely responded to
Almansor’s counsel’s statement that he was ‚in a bit of a
quandary‛ about what to do in the absence of his witness.
Nothing about the court’s statement foreclosed Almansor’s
opportunity (and responsibility) to request a continuance or to
seek the court’s assistance in procuring the witness, especially as
Almansor had not yet made any such requests to which the
court’s statement could be interpreted as a denial. When a party
fails to make a motion to continue the proceedings under such
circumstances, the issue is not preserved for appellate review.
See State v. Griffiths, 752 P.2d 879, 884 (Utah 1988) (explaining
that the defendant had not preserved a claim that trial ought to
have been continued due to the nonappearance of one of his
witnesses where the defendant made no such motion or
objection to the trial court). Therefore, Almansor’s claim on
2. Almansor’s counsel represented to the trial court that the
witness had ‚been served a subpoena,‛ but he did not address
whether the witness had been subpoenaed for this trial setting or
only for the earlier setting. Counsel’s statement that he had last
‚spoken to her some time ago when this case was first set‛ does
not resolve the question either way.

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appeal fails unless he can demonstrate that the trial court plainly
erred. See State v. Weaver, 2005 UT 49, ¶ 6, 122 P.3d 566.
¶11 Plain error, however, requires a showing of prejudice,
State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993), and Almansor
has not demonstrated that he suffered any harm from the trial
court’s decision to go forward with trial. Almansor’s briefing
focuses on the court’s purported error in not procuring the
witness to the exclusion of any analysis of the prejudice of that
error. He does not address the anticipated content of the
witness’s testimony at all, nor does he demonstrate how her
testimony would have helped the defense. He simply says the
witness ‚was the best friend of the alleged victim, and *was+
designated . . . as a hostile witness‛ before remarking that the
witness’s ‚testimony could have possibly changed the verdict.‛
This is insufficient to make the required showing of prejudice.
Cf. State v. Creviston, 646 P.2d 750, 752 (Utah 1982) (affirming the
denial of a motion for continuance on the basis that the
defendant had failed to show that the excluded testimony was
material and admissible when he had only claimed that the
missing witness’s testimony was ‚‘vital’‛ and was expected to be
in the defendant’s behalf but did not provide any information
about what the witness would say); State v. Curtis, 2013 UT App
287, ¶ 18, 317 P.3d 968 (explaining that to justify a remand under
rule 23B of the Utah Rules of Appellate Procedure for the entry
of more facts about trial counsel’s decision not to call a particular
witness, the defendant must allege nonspeculative facts
regarding the contents of the uncalled witness’s testimony).
Almansor’s witness claim therefore fails.
III. Verdict Coercion
¶12 Finally, Almansor asserts that the jury’s verdict was the
product of undue pressure or coercion by the trial court. In
particular, Almansor attempts to assign error to the court’s
method of responding to the jury’s indication that it was split.
We conclude that the court’s response to the deadlocked jury
was invited. But based on a review of the totality of the

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circumstances, including the court’s instructions to and
communications with the jury throughout the trial, we also
determine that the verdict was not the result of trial court
pressure or coercion.
¶13 Shortly after the jury was impaneled and prior to the
presentation of any evidence, the trial court instructed that ‚*i+t
is the responsibility of the jury . . . to reach a verdict based upon
the evidence‛ and in accordance with the instructions that
would later be given. Following the presentation of evidence, the
court instructed the jury on the applicable law and the process it
should follow in reaching a decision. Instruction 18, in
particular, gave the jurors detailed advice on how they should
deliberate:
When you go into the jury room to
deliberate, discuss the evidence and speak your
mind with each other. Open discussion should help
you reach a unanimous agreement on a verdict. Listen
carefully and respectfully to each other’s views and
keep an open mind about what others have to say.
I recommend that you do not commit
yourselves to a particular verdict before discussing
all of the evidence. Try to reach unanimous
agreement, but only if you can do so honestly and in
good conscience. If there is a difference of opinion
about the evidence or the verdict, do not hesitate to
change your mind if you become convinced that
your position is wrong. On the other hand, do not
give up your honestly-held views about the evidence
simply to agree on a verdict, to give in to pressure from
other jurors or to just get the case over with. In the end,
your vote must be your own.
Because this is a criminal case, every single juror
must agree with the verdict before the defendant can be
found guilty or not guilty. In reaching your verdict,

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you may not use methods of chance, such as
drawing straws or flipping a coin; rather, the
verdict must reflect your individual, careful and
conscientious judgment as to whether the evidence
presented by the prosecutor proved each charge
beyond a reasonable doubt.
(Emphasis added.)
¶14 Approximately two-and-a-half hours after the jury was
excused to deliberate, the trial court notified the parties that ‚we
have a pretty deadlocked jury.‛ The court explained that ‚an
hour-and-a-half ago‛—an hour after deliberations began—the
jurors ‚wrote a note‛ to the court saying ‚they were split.‛ At
that time, the court ‚told them simply to continue to deliberate.‛
The court asked the parties to return to the courtroom because
the court was ‚a little pessimistic about *the jury’s+ ability to
reach a verdict‛ and it wanted direction from counsel on
whether it should ‚give an Allen instruction‛3 or declare ‚a
mistrial.‛ When the parties returned to the courtroom, the court
told counsel that the bailiff had inquired about the status of
deliberations twenty minutes earlier and the jury still
‚appear*ed+ to be deadlocked.‛ The court then asked counsel
whether it should ‚do an Allen instruction, send [the jury] back
for further deliberations or . . . try to get a sense and poll the jury
3. ‚An Allen charge is a supplemental instruction . . . designed to
encourage a divided jury to agree on a verdict.‛ Hooks v.
Workman, 606 F.3d 715, 719 n.1 (10th Cir. 2010) (omission in
original) (citation and internal quotation marks omitted). Utah
has approved the use of a modified Allen instruction that does
not overemphasize unanimity or suggest that the court is
demanding a verdict. State v. Harry, 2008 UT App 224, ¶¶ 6, 9,
189 P.3d 98; see also State v. Dalton, 2014 UT App 68, ¶ 47 (‚*T+he
non-coercive use of Allen charges is permitted in Utah . . . .‛
(alteration in original) (citation and internal quotation marks
omitted)).

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relative to whether they believe there’s any way that . . . they
would be able to reach a verdict.‛ Almansor’s counsel stated that
he would ‚*d+efer to the wisdom of the Court, whatever your
thoughts are.‛ After the City indicated that an Allen instruction
was unlikely to move the jury, the court decided to poll the
jurors. Almansor’s counsel concurred with that decision, stating,
‚That’s fine, Judge.‛
¶15 The court brought in the jurors and informed them that it
was aware that they had not yet been able to reach a verdict. The
judge then asked the foreperson: ‚Do you believe there’s a
possibility, if you were to go back and continue deliberating, that
you would be able to reach a verdict?‛ The foreperson
responded, ‚I think . . . if we had ten minutes, I would know the
answer to that.‛ After confirming that the parties had no
objection to sending the jury back to answer that question, the
jury was excused on the foreperson’s representation to the court
that the jurors would discuss whether they ‚would be able to
become unanimous or not.‛ About twenty minutes later, the jury
returned with the guilty verdict.
¶16 Almansor argues that the jury was coerced or pressured
to reach a verdict by the trial court’s emphasis on unanimity in
its instructions and its direction that the jury continue
deliberating after it had indicated that it was deadlocked. He
asserts that the shift from deadlock to verdict in twenty minutes
is evidence of that coercion. Almansor also claims that the
court’s decision to poll the jury and its subsequent exchange
with the foreperson may have caused the jury to feel as though it
had to reach a verdict within ten minutes. The City responds
that Almansor essentially invited any error the trial court may
have made by stating, in essence, that he would defer to the
court’s judgment on how to handle the deadlock issue and then
voicing no objection to how the court proceeded. But even in the
absence of any invitation by Almansor, the City maintains, all of
the jury instructions correctly stated the law and because the
jury received no further instruction on how to reach a verdict
after it indicated its split, but instead was only asked if it could

Salt Lake City v. Almansor
20121016-CA 10 2014 UT App 88
reach a verdict, the court did not coerce or pressure the jury. We
conclude, based on Almansor’s response to the court’s
questioning about how to address the jury’s apparent divide and
his silence in response to the court’s subsequent actions, that
Almansor invited the court’s handling of the issue.
¶17 ‚*A+ party cannot take advantage of an error committed
at trial when that party led the trial court into committing the
error.‛ State v. Geukgeuzian, 2004 UT 16, ¶ 9, 86 P.3d 742 (citation
and internal quotation marks omitted). A party invites an error
in instructing the jury when ‚counsel either by statement or act,
affirmatively represented to the court that he or she had no
objection.‛ Id. Here, in response to the jury’s announcement that
it was split on a verdict, the trial court offered four possible
responses—give an Allen instruction, allow the jurors to continue
deliberating without further instruction, poll the jurors, or
declare a mistrial—and then asked counsel for their input on
how best to address the situation. Almansor’s attorney declined
to give an opinion, instead electing to ‚*d+efer to the wisdom of
the Court, whatever your thoughts are.‛ When the court then
decided to poll the jury, counsel concurred in that judgment,
stating, ‚That’s fine, Judge.‛ Counsel further indicated
agreement with the court’s response when he stated ‚*n+o
objection‛ to the court’s decision to send the jury back after the
foreperson indicated that he could let the court know if the jury
could reach a verdict with ten more minutes of discussion.
Because Almansor led the trial court to believe that its response
to the deadlock was appropriate, we cannot assign the response
as error. See id.
¶18 Moreover, we are convinced that the court’s instructions
to and interactions with the jury, as a whole, do not support a
conclusion that the court coerced the verdict. Thus, under the
totality of the circumstances, defense counsel’s expression of
confidence in the trial court’s exercise of its judgment on how to
handle the jury deadlock proved to have been warranted.

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¶19 The trial court’s jury instructions, particularly Instruction
18, had already properly informed the jury of its role as the
finder of fact regarding Almansor’s guilt or innocence and of the
requirement for a unanimous verdict to either convict Almansor
or acquit him. Instruction 18 did not overemphasize unanimity
or instruct the jury to reach a verdict at any cost; rather, it told
the jurors to ‚*t+ry to reach unanimous agreement‛ but only if
each of them ‚can do so honestly and in good conscience.‛ And
while each juror was encouraged to ‚speak your mind‛ in the
process of deliberation, the jurors were also advised to ‚*l+isten
carefully and respectfully to each other’s views.‛ In particular,
they were cautioned not to ‚give up . . . honestly-held views
about the evidence simply to agree on a verdict‛ or ‚to give in to
pressure from other jurors . . . to just get the case over with.‛
¶20 Then, once the jury reported that it was divided, the trial
court made no effort to force a decision. Although the court
directed the jury to keep deliberating after first being advised
that there was a split, that direction came after the jury had been
working for just one hour and was not accompanied by any
further instruction or any implication that the jury must reach a
verdict. When the jury still had not reached a consensus after
another hour-and-a-half had passed, the court decided to call
counsel back to seek input on how to respond. At that point, the
court indicated its concern that it did not want the response ‚to
be coercive.‛ After giving the attorneys an opportunity to weigh
in, the court elected to poll the jurors. This occurred
approximately three hours after the jury had been excused to
deliberate. During the polling process, the court did not ask for a
breakdown of the split nor did it ask any of the jurors to change
his or her position or otherwise imply that any of the jurors
should do so. Furthermore, the court did not explicitly
communicate an intent to keep the jury until it reached a verdict;
indeed, its questions about the likelihood of reaching a
unanimous verdict could be viewed as indicating the court’s
willingness to release the jury if it could not reach a consensus.
And it was only upon the foreperson’s representation that the
jurors needed a few minutes to discuss whether a verdict was

Salt Lake City v. Almansor
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possible that the jury was sent back to the jury room. Before
excusing them, however, the court clarified that the purpose was
to ‚resolve whether *they+ would be able to become unanimous
or not.‛ Although the fact that the jury came to a verdict only
twenty minutes after it returned to the jury room could support
an inference that some pressure was at work, that alone is
insufficient to taint the verdict where the circumstances as a
whole lead to a conclusion that it was not the product of
coercion.
¶21 Finally, neither the trial court’s instructions prior to
deliberations nor its response to the jury’s announcement that it
was split create the type of circumstances that have been deemed
coercive. See, e.g., State v. Ginter, 2013 UT App 92, ¶¶ 8–9, 300
P.3d 1278 (explaining that the verdict is more likely to be the
product of coercion when the trial court singles out a known
minority of jurors standing for a particular result and asks them
to change their minds; where the Allen instruction emphasizes
the cost, time, and inconvenience of a new trial to the point
that the jury may feel that it must reach a verdict; and where
the jury returns a verdict within a very short time after the
Allen instruction); cf. State v. Clements, 967 P.2d 957, 959 (Utah Ct.
App. 1988) (stating, in the context of a jury not yet deadlocked,
that a trial court’s request for the jurors to ‚come to some
consensus from among the options of (1) returning [to
deliberate] . . . , (2) letting the court know they were deadlocked,
or (3) reaching a verdict‛ was not coercive, even though the jury
reached a verdict within a few minutes of the court’s request).
¶22 And the cases upon which Almansor relies to support his
position that there was coercion are inapposite. First of all, those
cases involve the giving of an Allen instruction. More
importantly, they all identify several indicators of coercion that
are not present here. See, e.g., State v. Harry, 2008 UT App 224,
¶¶ 9, 16, 21, 34, 189 P.3d 98 (concluding that the verdict had been
coerced when the jury found the defendant guilty within thirty
minutes of receiving a modified Allen instruction because that
instruction was aimed at the single dissenting juror,

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overemphasized unanimity, and unduly emphasized the cost,
time, and inconvenience of a new trial); Hooks v. Workman, 606
F.3d 715, 741–42, 747–751 (10th Cir. 2010) (concluding that a
verdict to impose the death penalty was coerced where the
initial instructions ‚focused narrowly on the concept of
unanimity‛; the Allen instruction, which was given within
minutes of the court learning that there was a single holdout
juror, not only failed to inform the jury that unanimity was not
required but also failed to correct the jury’s misunderstanding
that the decision had to be unanimous to impose punishment;
and the court’s subsequent actions aimed at preparing for jury
sequestration overnight indicated to the jurors that deliberations
would continue until they reached a unanimous verdict).
¶23 In contrast to those cases, the trial court here gave no
Allen instruction. And the initial instructions cautioned the
jurors to decide the case only if they could ‚do so honestly and
in good conscience‛ and without ‚giv*ing+ up . . . honestly-held
views about the evidence simply to agree on a verdict, to give in
to pressure from other jurors or to just get the case over with.‛
Furthermore, the last exchange the jury heard before it retired to
deliberate for the last time implied that deliberations would
cease if the jury decided it could not reach a verdict. Therefore,
the totality of the interactions between the court and the jury
‚conveyed the idea that the jury did not have an absolute duty
to reach a verdict.‛ See State v. Dalton, 2014 UT App 68, ¶ 51
(concluding that an Allen instruction that contained similar
instructions was not coercive).
¶24 As a final matter, we note that in considering the options
for responding to the jury deadlock, the trial court stated, ‚I
don’t want there to be any coercion on any part with regard to
pressure by jurors and my sense is that there may be a belief that
that’s going on.‛ Although the wording suggests that the court
may have been concerned about the possibility that there was
pressure among the jurors themselves, neither party followed up
on the court’s comments or expressed any concerns about
coercion inside the jury room. Furthermore, nothing in the

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record, aside from this statement, suggests pressure on the
jurors. Almansor now asserts on appeal that ‚*t+he judge was
aware that coercive tactics were being used amongst the jurors,
one of whom was well-versed in criminal law and procedures,‛
but he does so in the context of his argument that it was coercive
to require the jury to continue deliberating after it indicated that
it was divided and without further instruction that the jury need
not reach a verdict. Thus, Almansor seems to be using the court’s
statement as further weight for his claim that the verdict was
coerced.
¶25 In the absence of any objections or concerns raised by
counsel regarding pressure or coercive tactics amongst the jury
members, our focus on appeal must remain on the trial court’s
interactions with the jury. See generally Jessop v. Hardman, 2014
UT App 28, ¶ 25, 319 P.3d 790 (‚Rule 606(b)(1) of the Utah Rules
of Evidence prohibits virtually all inquiries into the jury
deliberation process . . . : During an inquiry into the validity of a
verdict or indictment, a juror may not testify about any
statement made or incident that occurred during the jury’s
deliberations; the effect of anything on that juror’s or another
juror’s vote; or any juror’s mental processes concerning the
verdict or indictment.‛ (citations and internal quotation marks
omitted)). As we discussed above, the trial court did not exert
any pressure or coercion on the jury to reach a verdict. Indeed,
the court seemed acutely aware of the potential for actual or
perceived coercion and exercised significant caution in
responding to the jury’s concerns about reaching agreement. In
this context, we view the court’s statement that there may be a
‚belief that *coercion is] going on‛ as simply an explanation for
the court’s caution.
¶26 In summary, we conclude that Almansor invited the trial
court to poll the jury and did not object to the court’s decision to
send the jury back to determine if it could reach a verdict. In any
event, nothing in the trial court’s interactions with the jury after
the jury indicated that it was split evidences any undue pressure
or coercion of the jury by the court.

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20121016-CA 15 2014 UT App 88
¶27 For the foregoing reasons, we affirm Almansor’s
conviction.