State v. Dalton|

2014 UT App 68
_________________________________________________________
THE U TAH COURT OF A PPEALS
STATE OF U TAH,
Plaintiff and Appellee,
v.
T ERRILL D ALTON,
Defendant and Appellant.
Opinion
No. 20120477‐CA
Filed March 27, 2014
Third District Court, Salt Lake Department
The Honorable Judith S.H. Atherton
No. 101905889
Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Ryan D. Tenney, Attorneys
for Appellee
SENIOR J UDGE R USSELL W. BENCH authored this Opinion, in
which J UDGES G REGORY K. ORME and STEPHEN L. R OTH
concurred. 1
BENCH, Senior Judge:
¶1 	Defendant Terrill Dalton appeals from his convictions on
two counts of rape, a first degree felony. We affirm.
1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11‐201(6).

State v. Dalton
BACKGROUND 2
¶2 	Around 2004, Defendant founded his own church as a result
of experiencing what he called a spiritual revelation. Defendant led
his church as its president and appointed his friend, Geody
Harman, to act as first counselor. The church grew to include
eighty to ninety members, including close family friends and
several members of Defendant’s own family. Over the years,
Defendant and his followers have lived in Utah, Idaho, Nevada,
Colorado, and Montana.
¶3 	As president, Defendant represented himself to the church
members as the “Holy Spirit” and, at times, members of the church
called Defendant the “Holy Spirit” or the “Holy Ghost.” Defendant
taught that church doctrine required his approval, sanction, and
interpretation and that Defendant served as the judge who
discerned the church’s doctrine. Church members understood that
Defendant was the one who held “all the authority” in the church.
If members did not adhere to church laws or doctrine, they faced
punishments 	of 	private 	reprimand, 	public 	rebuke, 	or
excommunication.
¶4 	As part of religious life in the church, Defendant, Harman,
and other members experienced “impressions.” As Harman put it,
an “impression” is a feeling that prompts a person to take a
beneficial action. Defendant explained impressions as “what God
was telling us to do.” It was common practice for church members
to discuss their impressions with Defendant so that he could judge
and ensure the validity of the impressions. One important doctrine
of the church, referred to as “the higher doctrine,” was “the
2. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence only
as necessary to understand issues raised on appeal.” State v. Bluff,
2002 UT 66, ¶ 2, 52 P.3d 1210 (citation and internal quotation marks
omitted).
20120477‐CA 	2014 UT App 68	2

State v. Dalton
doctrine of giving seed.” This particular doctrine involved church
members receiving impressions regarding with whom they should
engage in sexual relations.
¶5 	While living in Utah in the fall of 2005, Harman had an
impression that he should have sex with a fifteen‐year‐old church
member (Victim), whom Harman regularly employed to babysit
his children. Harman approached Defendant to counsel with him
about this impression. Defendant responded to Harman’s inquiry
by telling Harman to pray about it and “make sure it’s what God
wants.” 	After 	Harman 	followed 	these 	instructions, 	Harman
approached Defendant a second time and reported that he was
“still feeling the same way.” Defendant told Harman that he would
speak with Victim directly and stated, “It is of God and you best go
fulfill 	it.” 	Harman 	understood 	Defendant’s 	words 	as 	“an
instruction and a command from God’s prophet on the earth” that
Harman had “better go fulfill.”
¶6 	When 	Defendant 	spoke 	to 	Victim 	about 	Harman’s
impression, Defendant told her that “God needed [her] to have sex
with [Harman], [and] that [she]’d be given a blessing for it.”3
Following this conversation, Defendant instructed Harman to
approach Victim. When Harman talked to Victim and asked if she
had a similar impression, Victim nodded her head and said yes.
Later that week after she had finished babysitting, Harman had sex
with Victim at his home. The next day, Harman reported to
Defendant that “a command given by God . . . was fulfilled.”
Sometime later that month, Defendant also had sexual intercourse
with 	Victim. 	Shortly 	after 	these 	incidents 	of 	abuse, 	Victim
struggled academically and began skipping class and smoking
marijuana. Victim dropped out of school within months.
3. Victim understood “a blessing” as when “God was going to do
something in return” to help her in her life.
20120477‐CA 	2014 UT App 68	3

State v. Dalton
¶7 	Approximately 	four 	years 	later, 	Victim 	reported 	her
allegations of abuse to the police. Defendant denied that he had
had sex with Victim and that he told Victim about Harman’s desire
to have sex with her. Likewise, Defendant denied having told
Victim that she should have sex with Harman and that she would
receive 	a 	blessing 	for 	it. 	However, 	Defendant 	admitted 	in
interviews with police that Harman told him about his impression
that he should have sex with Victim.
¶8 	In August 2010, Defendant was charged with two counts of
rape. The first count of the information (the Information) charged
Defendant with having sexual intercourse with Victim without her
consent. The second count was based on accomplice liability and
charged Defendant as a party to Harman’s nonconsensual sexual
intercourse with Victim. The Information alleged that both crimes
occurred on or about September 1, 2005. Three months before trial,
the 	State 	amended 	the 	information 	(the 	First 	Amended
Information), changing the dates of the alleged offenses to having
been committed “on or about January 01, 2005 through June 30,
2005.”
¶9 	A three‐day jury trial was held in March 2012. Harman and
Victim both testified for the State. Harman admitted that he had
sex with Victim. Harman explained that after Defendant gave
Harman his permission, Harman arranged “to take care of [it]”
with Victim at his home after she finished babysitting one evening.
After Harman’s family went to the park, Harman and Victim
prayed and “both felt good about what [they were] about to do.”
Victim indicated to Harman that she felt the impression again. As
Harman and Victim climbed the stairs, Harman noticed that
Victim’s demeanor was “concerned or withdrawn.” Harman
further testified that Victim then expressed reluctance and said no
to him but that he assured her that they were doing “what . . . God
wanted [them] to do.” Harman asked Victim, “[D]o you want to do
what God wants you to do?” At that point, Victim nodded yes, and
Harman and Victim proceeded to have sex. Harman also testified
that Defendant later told him that Defendant had been intimate
20120477‐CA 	2014 UT App 68	4

State v. Dalton
with Victim on multiple occasions after Defendant had returned to
Utah in the fall of 2005. Harman testified that Defendant had spent
the previous two months living in Nevada and that Defendant
frequently traveled.
¶10 	Victim testified that she had sex once with Harman and once
with Defendant. Victim testified that Defendant asked her to have
sex with Harman. Victim explained that although she did not want
to 	have 	sex 	with 	Harman, 	she 	eventually 	complied 	with
Defendant’s directive because she was “told that when [she] was
brought before God that [she would] need to face things.” Victim
was not sure whether she told Harman that she did not want to
have sex with him but remembered that Harman told her “this was
what the Lord wanted.” After she and Harman had sex, Victim
indicated 	that 	Defendant 	told 	her 	that 	“the 	Lord 	was
pleased . . . but he [wanted her] to do it again” with Defendant
three times and then she “[would] get a great blessing.” Victim
testified that she did not want to have sex with Defendant but,
within a couple weeks, did so once.
¶11 	One of Defendant’s female relatives (Relative) also testified
for the State. Relative testified that in his role as leader of the
church, Defendant told her that she “needed to . . . be a prostitute
in a way” and “have sex with other people.” Relative testified that
Defendant told her that she should have sex with him because she
would “get many blessings from it” and it was “the only way that
he could help [her]” with her depression. Relative stated that
Defendant would “try to convince” her to have sex with him
“every time he could get [her] alone.” After about three months of
these conversations, Relative indicated that she had sex with
Defendant around 2005 “to get it over with.” Afterward, Relative
was “really uncomfortable with what had happened.” Defendant
approached her several times thereafter and suggested that they
have sex again to “cure [her] of this mental condition,” but Relative
told him no. Defendant asked Relative “not to tell certain people”
that they had sex and that if anybody did ask, she should tell them
that “it happened in the spirit.” Relative testified that she came
20120477‐CA 	2014 UT App 68	5

State v. Dalton
forward with her allegations in April 2011 when she heard Victim’s
story because it “matched [her own] story of what happened” to
her.
¶12 	Relative’s sister (Sibling) also testified. Sibling testified that
Defendant propositioned her several times. In particular, Sibling
testified that Defendant gave her a piece of paper that indicated she
should 	receive 	“seed” 	from 	“one 	of 	the 	two 	candlesticks.”
Defendant explained to Sibling that “[s]eed meant sperm” and that
“the spirit t[old] [him]” he was the candlestick. Sibling refused.
After Sibling refused to receive Defendant’s “seed” on a second
occasion, she and Defendant had a four‐hour argument “over
[Sibling’s] moral status and [her] not listening to the Lord’s
promptings.” Sometime later, Defendant and Harman approached
Sibling together and told her that Defendant was “prompted” that
Sibling “would have a child from him.” Sibling resisted all of
Defendant’s advances.
¶13 	At trial, Defendant sought to pursue the theory that Victim
was motivated to make the abuse allegations in order to obtain
money for drugs. The defense called Victim’s younger sister (Sister)
as 	its 	first 	witness. 	Defense 	counsel 	asked 	Sister 	on 	direct
examination, “[B]efore [Defendant] got arrested on these charges
did [Victim] ever talk to you about any allegations of sexual
misconduct by [Defendant] . . . or [Harman]?” Sister answered,
“No.” Defense counsel then asked, “After [Defendant] got arrested
did you ever talk to [Victim] about the allegations?” When Sister
responded inaudibly, defense counsel followed up by asking,
“When you say not really, does that mean you did but not too
much?” Sister responded, “Yeah, like I didn’t believe her so we
didn’t really ever[] get into talking about it.” (Emphasis added.)
Defense counsel proceeded to ask Sister several more follow‐up
questions about whether Sister asked Victim why she was alleging
sexual misconduct.
¶14 	Following Defendant’s direct examination of Sister, the
prosecutor requested permission to explore the reasons why Sister
20120477‐CA 	2014 UT App 68	6

State v. Dalton
did not believe Victim. At a sidebar conference, defense counsel
opposed the prosecutor’s proposed line of questioning because he
“didn’t ask [Sister] what her opinion was.” The trial court
disagreed with the defense and ruled that it was proper for the
prosecutor to inquire into whether Sister believed the allegations
because defense counsel had opened the door to that subject
matter. Over defense counsel’s continued objection, the prosecutor
proceeded to cross‐examine Sister and to inquire into whether
Sister believed Victim’s allegations. The prosecutor asked Sister,
“Now, how do you feel about [Victim’s] story today?” Sister
replied, “It’s a little different now.” When asked to explain why,
Sister responded by describing a more recent incident when
Defendant had asked Sister to pose naked for pictures. Sister
testified that Defendant had told her that she could make money by
posting the pictures online.
¶15 	The defense then called Victim’s former roommate (Friend),
who had lived with Victim during the time of the abuse. On direct
examination, Friend testified that Defendant went to Arizona to
preach and moved to Nevada in 2005. Friend also indicated that
Defendant would periodically come home to Utah for a couple of
days to a week during this time period. Friend testified that Victim
never confided in her about any sexual activity involving Harman
or Defendant and that Victim’s allegations seemed odd to her.
Friend further testified that Victim began lying to her in 2005 and
that Friend believed only thirty percent of what Victim said to her.
On cross‐examination, Friend admitted that she was one of the first
members of Defendant’s church and had two children with
Defendant.
¶16 	Defendant moved for a mistrial, arguing that the testimony
of Defendant’s request for nude pictures of Sister was inadmissible
evidence that was inflammatory and prejudicial. The prosecutor
opposed the motion, countering that his cross‐examination of Sister
was permissible because Defendant had opened the door during
his direct examination. According to the prosecutor, Sister’s answer
that she did not believe Victim’s allegations permitted him to ask
20120477‐CA 	2014 UT App 68	7

State v. Dalton
Sister whether and why her opinion had changed. The trial court
denied the motion for a mistrial based on its conclusion that
Defendant had opened the door to the nude‐pictures testimony and
that the evidence was only a tiny piece of the story.
¶17 	At the close of the second day of trial, the State moved to
amend the dates in the information to conform with Victim’s
testimony regarding when the crimes occurred. The prosecutor
asserted that the dates in the First Amended Information were a
result of his own misreading of Victim’s school records. Defendant
opposed the motion to amend. Defendant claimed that he had
begun preparing an alibi defense after the Information listed the
crimes as having been committed in September 2005 but that he
had abandoned his preparations for that defense after the First
Amended Information listed the crimes as having occurred in early
2005. Defendant argued that to allow the State to amend the
information during trial would prejudice his rights. The trial court
granted the State’s motion to amend, reasoning that Defendant
“had sufficient notice over a very long period of time” about the
general time period involved in the case. The resulting amended
information (the Second Amended Information) described the two
crimes as having been committed “on or about September 2005
through January 2006.”
¶18 	After reviewing the jury instructions, Defendant urged the
trial court to submit a mistake‐of‐fact instruction. In particular,
Defendant’s proposed instruction would have instructed the jury
that an act committed under ignorance or mistake of fact disproves
the culpable mental state and that therefore “it is a defense to the
charge of Rape as an Accomplice if the defendant had an honest
belief that [Victim] was not being raped.” Defendant’s proposed
instruction further explained that if Defendant brought forward
some evidence which tended to show that he had an honest belief
that Harman and Victim were not engaging in sex or that Victim
consented, “then the prosecution must prove beyond a reasonable
doubt that the defendant did not act under an honest belief.” The
trial 	court 	refused 	to 	include 	a 	mistake‐of‐fact 	instruction,
20120477‐CA 	2014 UT App 68	8

State v. Dalton
concluding that mistake of fact was inapplicable because it would
not negate the culpable mental state.
¶19 	The case was submitted to the jury around 1:40 p.m. on the
final day of trial. At 3:30 p.m., the jury submitted a question to the
court regarding Instruction 33. That instruction set forth the
elements of rape as an accomplice, explaining that in order to find
Defendant guilty of rape as an accomplice, the jury had to find that
Defendant “solicited, requested, commanded, or encouraged
another to have sexual intercourse with [Victim] without consent;
or . . . intentionally aided another to have sexual intercourse with
[Victim] 	without 	consent.” 	The 	jury’s 	question 	was 	“[D]id
[Defendant] have to specifically specify to [Harman] to have sexual
intercourse without consent in order for us to be able to agree with
the 	statement?” 	After 	hearing 	from 	counsel, 	the 	trial 	court
answered the jury in the affirmative and referred the jury to the
special verdict form. At 4:56 p.m., the jury submitted another
question to the court. The jury’s second question was “We found
a verdict for count 2[, the accomplice liability charge]. We do not
have a unanimous decision for count 1. What do we do?” The trial
court proposed giving a modified Allen instruction4 (Instruction
37) 5 similar to that approved by this court in State v. Harry, 2008 UT
App 224, 189 P.3d 98. Although defense counsel objected to some
of the language in the instruction, the trial court proceeded to give
Instruction 37.
¶20 	The jury returned guilty verdicts on both counts at 6:28 p.m.
On the special verdict form concerning the accomplice liability
charge, the jury answered, “Yes,” to the first question, “Did Geody
Harman 	have 	sexual 	intercourse 	with 	[Victim] 	without 	her
4. In Allen v. United States, 164 U.S. 492 (1896), the United States
Supreme Court approved the use of supplemental jury instructions
to help a deadlocked jury reach a unanimous verdict. Id. at 501–02.
5. The instruction is not numbered in the record, but for simplicity,
we refer to it as Instruction 37.
20120477‐CA 	2014 UT App 68	9

State v. Dalton
consent?” The second question asked the jury to indicate the basis
for its finding that the intercourse between Harman and Victim
was nonconsensual. One option was that Victim was fourteen years
of age or older, but younger than eighteen years of age, and
Harman was more than three years older than Victim and enticed
Victim to submit or participate. However, the jury marked the
other option, finding that Victim expressed a lack of consent
through words or conduct. 6 See Utah Code Ann. § 76‐5‐406
(LexisNexis Supp. 2013) (enumerating circumstances where a rape
is without the consent of the victim, including when “the victim
expresses lack of consent through words or conduct” or when “the
victim is 14 years of age or older, but younger than 18 years of age,
and the actor is more than three years older than the victim and
entices or coerces the victim to submit or participate, under
circumstances not amounting to . . . force or threat”). 7 Defendant
timely appeals from his convictions.
ISSUES AND STANDARDS OF REVIEW
¶21 	Defendant advances five claims of error on appeal. First,
Defendant argues that the trial court exceeded its discretion when
it admitted Sister’s testimony that Defendant asked her to pose for
nude pictures and that she believed Victim’s allegations. “[W]e
grant 	a 	trial 	court 	broad 	discretion 	to 	admit 	or 	exclude
evidence . . . .” State v. Gallup, 2011 UT App 422, ¶ 12, 267 P.3d 289
(alteration in original) (citation and internal quotation marks
omitted). But even when the trial court has exceeded its discretion
in making an evidentiary ruling, we will reverse “only if, absent
6. The parties do not dispute that Victim was a fifteen‐year‐old
minor at the time of the sexual intercourse with Harman, who was
in his early thirties.
7. Where recent amendments to the Utah Code do not affect our
analysis, we cite the most recent version of the code for the reader’s
convenience.
20120477‐CA 	2014 UT App 68	10

State v. Dalton
the error, there is a reasonable likelihood that there would have
been a more favorable result for the defendant. A reasonable
likelihood of a more favorable outcome exists when the appellate
court’s confidence in the verdict actually reached is undermined.”
State v. Kohl, 2000 UT 35, ¶ 17, 999 P.2d 7 (citation and internal
quotation marks omitted); see also State v. King, 2010 UT App 396,
¶ 40, 248 P.3d 984 (“An erroneous decision to admit or exclude
evidence does not constitute reversible error unless the error is
harmful.” (citation and internal quotation marks omitted)).
¶22 	Second, Defendant argues that the trial court exceeded its
discretion in denying his motion for a mistrial. “The decision to
grant or deny a mistrial . . . rests within the sound discretion of the
trial court and will not be disturbed absent an abuse of discretion.”
State v. Calliham, 2002 UT 86, ¶ 42, 55 P.3d 573. “We review the trial
court’s finding that the testimony was not prejudicial and did not
warrant a mistrial for abuse of discretion.” Id. “A defendant has the
burden of persuading this court that the conduct complained of
prejudiced the outcome of the trial.” State v. Mahi, 2005 UT App
494, ¶ 10, 125 P.3d 103 (citation and internal quotation marks
omitted).
¶23 	Third, Defendant argues that the trial court erred by
refusing to submit a mistake‐of‐fact instruction to the jury on the
accomplice liability rape charge. “Whether the trial court’s refusal
to give a proposed jury instruction constitutes error is a question
of law, which we review for correctness.” State v. Marchet, 2012 UT
App 197, ¶ 10, 284 P.3d 668 (citation and internal quotation marks
omitted). “Failure to give requested jury instructions constitutes
reversible error only if their omission tends to mislead the jury to
the 	prejudice 	of 	the 	complaining 	party 	or 	insufficiently 	or
erroneously advises the jury on the law.” State v. Stringham, 2001
UT App 13, ¶ 17, 17 P.3d 1153 (citation and internal quotation
marks omitted).
¶24 	Fourth, Defendant claims that the trial court improperly
allowed the State to amend the information during trial. “A trial
20120477‐CA 	2014 UT App 68	11

State v. Dalton
court’s decision to permit amendment of an information is
reviewed for abuse of discretion.” State v. Hamblin, 2010 UT App
239, ¶ 13, 239 P.3d 300.
¶25 	Finally, Defendant contends that the trial court submitted a
coercive Allen instruction to the jury. We review for correctness
whether the trial court’s delivery of a modified Allen instruction
denied Defendant a fair trial. See State v. Ginter, 2013 UT App 92,
¶ 5, 300 P.3d 1278; State v. Harry, 2008 UT App 224, ¶ 5, 189 P.3d 98.
ANALYSIS
I. Admission of Sister’s Cross‐Examination Testimony
¶26 	Defendant first challenges the trial court’s decision to allow
the State to inquire into whether and why Sister came to believe
Victim’s 	abuse 	allegations. 	Defendant 	asserts 	that 	Sister’s
explanation 	that 	she 	now 	believed 	Victim’s 	claims 	because
Defendant once asked Sister to pose naked was inadmissible under
rules 403, 404, and 608 of the Utah Rules of Evidence. The State
counters that the evidence was a proper subject of its cross‐
examination because Defendant had opened the door during his
direct examination when Sister testified, in response to defense
counsel’s question, that she “didn’t believe [Victim].” The State
argues that if it had not been permitted to ask Sister whether she
still believed Victim’s allegations were untrue, “the jury would
have been left with the false impression that the victim’s own sister
still believed that she was lying for the purposes of obtaining
Defendant’s property—thereby inviting the jury to disbelieve the
victim as well.”8
8. The State does not argue that this evidence would have been
independently admissible in the absence of defense counsel’s
opening the door.
20120477‐CA 	2014 UT App 68	12

State v. Dalton
¶27 	At trial, Defendant called Sister as his first witness in order
to introduce evidence that Victim’s drug use gave her a motive to
fabricate allegations against Defendant. During Defendant’s direct
examination of Sister, the following exchange took place:
Q 	[B]efore [Defendant] got arrested on these
charges did [Victim] ever talk to you about
any 	allegations 	of 	sexual 	misconduct 	by
[Defendant], or [Harman]?
A 	No.
Q 	After [Defendant] got arrested did you ever
talk to her about the allegations?
A 	(Inaudible).
Q 	When you say not really, does that mean you
did but not too much?
A 	Yeah, like I didn’t believe her so we didn’t really
ever[] get into talking about it.
Q 	Did you ever ask her any questions on why
she was making allegations?
A 	No.
Q 	Did she ever tell you why she was making
allegations?
A 	Only that she (inaudible) that she did want
[Defendant] to (inaudible).
Q 	So she told you that she wanted [Defendant]’s
belongings and she wanted them for herself?
A 	(Inaudible).
Q 	And did she talk to you about how she’s
going to accomplish that?
A 	No.
(Emphasis 	added.) 	Before 	beginning 	cross‐examination, 	the
prosecutor pointed to Sister’s testimony that she “didn’t believe
[Victim]” and requested the trial court’s permission to explore the
reasons for this testimony and whether Sister still felt the same
way. Defense counsel objected, explaining that he never asked
Sister for her opinion on Victim’s veracity. The trial court agreed
20120477‐CA 	2014 UT App 68	13

State v. Dalton
with the prosecutor and ruled that the prosecutor’s proposed
questions were proper in light of Sister’s testimony on direct
examination. The prosecutor proceeded to cross‐examine Sister and
to elicit her testimony that her belief in Victim’s story is “a little
different now” because Defendant had asked Sister to pose for
nude pictures.
¶28 	On appeal, Defendant contends that the trial court exceeded
its discretion in determining that he opened the door to Sister’s
cross‐examination testimony. He argues that this testimony should
have been excluded as inadmissible character evidence under rule
404(b), see Utah R. Evid. 404(b) (providing that evidence of other
acts is not admissible to prove a person’s character in order to show
action in conformity therewith), and that the trial court should
have 	excluded 	the 	evidence 	because 	its 	prejudicial 	effect
outweighed its probative value, see id. R. 403 (providing that the
court may exclude relevant evidence if its probative value is
substantially 	outweighed 	by 	a 	danger 	of 	unfair 	prejudice).
Defendant further argues that Sister’s testimony amounted to
improper bolstering under rule 608(a). See id. R. 608(a); State v.
Adams, 2000 UT 42, ¶ 14, 5 P.3d 642 (explaining that rule 608(a)
generally “bars direct testimony regarding the truthfulness of a
witness on a particular occasion” (citation and internal quotation
marks omitted)).
¶29 	While certain evidence may be excludable when “elicited or
offered by the prosecution to prove its case‐in‐chief, the same
evidence may not be excludable . . . when the responsibility for its
introduction may be traced to the defendant.” State v. Barney, 681
P.2d 1230, 1231 (Utah 1984) (citation omitted) (concluding that
defense counsel invited any error by eliciting other acts evidence
in cross‐examining a witness where the witness’s statement “was
responsive and within the context of defense counsel’s question”);
accord State v. Mahi, 2005 UT App 494, ¶ 17, 125 P.3d 103 (“A party
cannot introduce potentially inflammatory evidence and then later
complain when the opposing party attempts to rebut it.”); State v.
Ramos, 882 P.2d 149, 154 (Utah Ct. App. 1994) (holding that the
20120477‐CA 	2014 UT App 68	14

State v. Dalton
“defendant 	cannot 	on 	appeal 	attack 	the 	admission 	of 	the
photograph because he himself opened the door to its introduction
on cross‐examination”). Further, “it is proper to allow as rebuttal
any testimony which would tend to dispute, explain or minimize
the effect of evidence that has been given by one’s opponent,” State
v. Sanders, 496 P.2d 270, 274 (Utah 1972), so long as that testimony
does not go beyond explaining the witness’s responses to the
opponent’s questions, see State v. Rhinehart, 2006 UT App 517,
¶¶ 26–27, 153 P.3d 830 (concluding that hearsay testimony went
beyond explaining the witness’s responses to defense counsel’s
cross‐examination questions).
¶30 	But even if the trial court exceeded its discretion in
admitting Sister’s testimony regarding the nude pictures and her
changed opinion of Victim’s truthfulness, we will not reverse
Defendant’s convictions unless our confidence in the verdict is
undermined. See State v. S.H., 2002 UT 118, ¶ 26, 62 P.3d 444
(“[E]ven if we assume that the evidence was improper, an appellate
court will not overturn a jury verdict for the admission of improper
evidence if the admission of the evidence did not reasonably
[affect] the likelihood of a different verdict.”). Here, the exclusion
of Sister’s cross‐examination testimony would not reasonably have
led to a different result. There was abundant other evidence to
support Defendant’s guilt. For example, Victim and Harman both
gave detailed testimony that Defendant spoke to them as their
religious 	leader 	and 	encouraged 	them 	to 	act 	on 	Harman’s
“impression” that Harman and Victim should have sex. Both
Victim and Harman testified that they complied with Defendant’s
instructions and had sex. Victim also testified that Defendant told
her that “the Lord is pleased with . . . what [she had] done with
[Harman] but he wants [her] to do it again” with Defendant and
that he eventually had sex with her. Harman testified that Victim
initially said no on the evening they had sex, and Victim testified
that she did not want to have sex with either Harman or
Defendant, thereby establishing Victim’s lack of consent on both
counts. Thus, the prosecution’s case was strong.
20120477‐CA 	2014 UT App 68	15

State v. Dalton
¶31 	Moreover, the State presented testimony from Relative and
Sibling that was probative of Defendant’s mental state. For
instance, Relative testified that Defendant had sex with her because
he told her, in his role as leader of the church, that Relative
“needed to . . . be a prostitute in a way” and that having sex with
him was “the only way he could help [her]” with her depression.
Likewise, Sibling testified that Defendant propositioned her several
times and argued with her “over [her] moral status and [her] not
listening to the Lord’s promptings” when she refused him. This
evidence from Relative and Sibling revealed Defendant’s religious
and sexual manipulation of other church members. Indeed, this
evidence was more similar to the charged conduct and potentially
more damaging to the defense than Sister’s testimony that she
came to believe Victim’s allegations after Defendant asked her to
pose nude.9 We agree with the trial court that the evidence of
Defendant’s request for nude pictures was “cumulatively . . . a tiny
piece of evidence.”
¶32 	Accordingly, the trial court’s admission of Sister’s cross‐
examination testimony does not undermine our confidence in the
verdict, regardless of whether the trial court exceeded its discretion
in determining that Defendant had opened the door. We therefore
decline to reverse Defendant’s convictions on this basis.
II. Denial of Defendant’s Motion for a Mistrial
¶33 	Defendant asserts that the trial court exceeded its discretion
when it denied his motion for a mistrial. This claim is also based on
the admission of Sister’s testimony on cross‐examination. In
denying Defendant’s motion for a mistrial, the trial court reasoned
9. The trial court admitted Relative’s and Sibling’s testimonies
under rule 404(b) because the State offered the evidence for a
noncharacter purpose of showing Defendant’s modus operandi.
On appeal, Defendant does not contest the admission of Relative’s
and Sibling’s testimonies.
20120477‐CA 	2014 UT App 68	16

State v. Dalton
that Defendant opened the door to the nude‐pictures testimony
and that this “tiny piece” of evidence did not undermine the
fairness of the proceedings.
¶34 	A trial court judge “is in an advantaged position to
determine 	the 	impact 	of 	courtroom 	events 	on 	the 	total
proceedings.” State v. Allen, 2005 UT 11, ¶ 39, 108 P.3d 730. “A trial
court should not grant a mistrial except where the circumstances
are such as to reasonably indicate . . . that a fair trial cannot be had
and that a mistrial is necessary in order to avoid injustice.” State v.
Pedersen, 2010 UT App 38, ¶ 17, 227 P.3d 1264 (omission in original)
(citation and internal quotation marks omitted). We will not
reverse a trial court’s denial of a motion for a mistrial “[u]nless the
trial court’s determination is plainly wrong in that the incident so
likely influenced the jury that the defendant cannot be said to have
had a fair trial.” State v. Wach, 2001 UT 35, ¶ 45, 24 P.3d 948
(citation and internal quotation marks omitted); see also State v.
Milligan, 2012 UT App 47, ¶ 7, 287 P.3d 1 (“[I]n order to obtain a
reversal, the defendant must make some showing that the verdict
was 	substantially 	influenced 	by 	the 	challenged 	testimony.”
(citation and internal quotation marks omitted)).
¶35 	Both at the trial court and on appeal, Defendant’s argument
on his motion for a mistrial is essentially a rehash of his argument
that the trial court exceeded its discretion by admitting Sister’s
cross‐examination testimony. We conclude that any error in the
admission of Sister’s belief in Victim’s allegations and Defendant’s
interest in nude pictures “is relatively innocuous in light of all the
testimony presented.” See Allen, 2005 UT 11, ¶ 40. Further, we are
not convinced that “the verdict was substantially influenced by the
challenged testimony such that [Defendant] cannot be said to have
had a fair trial.” See Milligan, 2012 UT App 47, ¶ 9 (citations and
internal quotation marks omitted). Accordingly, the trial court
acted within its discretion in denying Defendant’s motion for a
mistrial.
20120477‐CA 	2014 UT App 68	17

State v. Dalton
III. Defendant’s Proposed Mistake‐of‐Fact Instruction
¶36 	Defendant argues that the trial court was obligated to give
his proposed mistake‐of‐fact instruction because evidence was
presented in support of his theory, see State v. Low, 2008 UT 58,
¶ 25, 192 P.3d 867, and because “mistake of fact which disproves
the culpable mental state is a defense to any prosecution,” see Utah
Code Ann. § 76‐2‐304 (LexisNexis 2012). Defendant’s proposed
instruction would have instructed the jury that an act committed
under ignorance or mistake of fact disproves the culpable mental
state and that therefore “it is a defense to the charge of Rape as an
Accomplice if the defendant had an honest belief that [Victim] was
not 	being 	raped.” 	Defendant’s 	proposed 	instruction 	further
explained that “the prosecution must prove beyond a reasonable
doubt that the defendant did not act under an honest belief that
Geody Harman and [Victim were] not engaging in sex or that
[Victim] was consenting to engage in sex with Geody Harman.”
¶37 	We recently rejected a similar argument in State v. Marchet,
2012 UT App 197, 284 P.3d 668. There, a defendant charged with
rape requested a jury instruction that would have permitted the
jury to acquit if the jury believed that the defendant was ignorant
or mistaken in his belief that the victim consented to sex. Id. ¶ 18.
We concluded that “the arguments and the evidence supporting
[the defendant’s] mistake‐of‐fact defense also support acquittal
under the jury instructions provided.” Id. ¶ 19. We therefore
affirmed the trial court’s refusal to instruct on mistake of fact
because “the instructions properly informed the jury as to the
elements and mental state of the crime and allowed the jury to
consider [the defendant’s] theory of the case.” Id.; cf. State v.
Sessions, 645 P.2d 643, 646–47 (Utah 1982) (concluding that the trial
court did not err in refusing a proposed diminished capacity
instruction because, in part, the instructions on mens rea and lesser
included offenses adequately “gave the defendant whatever benefit
defendant would have had, had a diminished capacity instruction
been given”).
20120477‐CA 	2014 UT App 68	18

State v. Dalton
¶38 	Defendant’s mistake‐of‐fact defense attempts to undermine
his mens rea with respect to the element of lack of consent. See
Utah Code Ann. § 76‐2‐304; see also id. § 76‐2‐103(3) (stating that the
culpable mental state of recklessness relates to the “circumstances
surrounding 	[the 	defendant’s] 	conduct 	or 	the 	result 	of 	his
conduct”). In a prosecution for rape as an accomplice, the State is
required to prove beyond a reasonable doubt that a defendant
acted with “the mental state required for the commission of an
offense” and “solicit[ed], request[ed], command[ed], encourage[d],
or intentionally aid[ed] another” in committing a crime. See id. § 76‐
2‐202. A defendant who acts as an accomplice to rape must
undertake his actions intentionally, knowingly, or recklessly. See id.
§ 76‐2‐102; id. § 76‐5‐402 (Supp. 2013); see also id. § 76‐2‐103 (2012)
(defining intent, knowledge, and recklessness); State v. Jeffs, 2010
UT 49, ¶¶ 44, 49, 243 P.3d 1250 (noting that an accomplice and the
principal need not act with the same mental state). A person acts
“[r]ecklessly 	with 	respect 	to 	circumstances 	surrounding 	his
conduct or the result of his conduct when he is aware of but
consciously disregards a substantial and unjustifiable risk that the
circumstances exist or the result will occur.” Utah Code Ann. § 76‐
2‐103(3).
Under this mental state, the accomplice recognizes
that his conduct could result in rape but chooses to
proceed 	anyway. 	Thus, 	in 	specifying 	that 	the
accomplice act with the mental state required for the
commission 	of 	the 	underlying 	offense, 	the
accomplice liability statute clearly contemplates that
the accomplice is aware of, at a minimum, the
substantial and unjustifiable risk that his actions will
result in the commission of a crime—in this case
rape—by another person.
Jeffs, 2010 UT 49, ¶ 45. Here, the State was required to prove, at a
minimum, that Defendant was aware of the substantial and
unjustifiable risk that his actions would result in the commission of
20120477‐CA 	2014 UT App 68	19

State v. Dalton
a rape by Harman, see id., and that he “solicit[ed], request[ed],
command[ed], encourage[d], or intentionally aid[ed]” Harman in
committing a rape, i.e., having sexual intercourse with Victim
without her consent, see Utah Code Ann. § 76‐2‐202.
¶39 	We affirm the trial court’s denial of Defendant’s requested
mistake‐of‐fact instruction because “the jury instructions as a
whole fairly instruct[ed] the jury on the applicable law.” See
Marchet, 2012 UT App 197, ¶ 17 (alteration in original) (citation and
internal quotation marks omitted). Instruction 33 set forth the
required elements for the jury to find Defendant guilty of rape as
an accomplice:
1. 	That the defendant, TERRILL DALTON,
a. solicited, requested, commanded, or
encouraged another to have sexual
intercourse 	with 	[Victim] 	without
consent; or
b. intentionally aided another to have
sexual 	intercourse 	with 	[Victim]
without consent; and
2. 	acted intentionally, knowingly, or recklessly
as to the result of his conduct that another
would have sexual intercourse with [Victim]
without consent; and
3. 	That Geody Harman had sexual intercourse
with [Victim] without her consent.
Instruction 28 stated, “[T]here must be evidence presented by the
State that establishes beyond a reasonable doubt that the defendant
engaged in some active behavior, or at least speech or other
expression that served to assist or encourage Geody Harman to
rape [Victim].” It further instructed, “A person who intentionally
aids another person to engage in conduct is one who intends to
bring about something planned or foreseen, to have a purpose or
design with which an act is done, assists or facilitates the
20120477‐CA 	2014 UT App 68	20

State v. Dalton
commission of a crime, or promotes the accomplishment of the
crime.” As in Marchet, the instructions given to the jury also further
explained consent, reasonable doubt, and the three enumerated
mental states. See id. ¶ 18. Under these jury instructions, if the jury
was convinced that Defendant honestly believed that Victim
purported to consent to sex with Harman,10 the jury could find that
the State did not meet its burden to prove beyond a reasonable
doubt that Defendant had the requisite mental state—i.e., that
Defendant did not, at a minimum, “recognize[] that his conduct
could result in rape but [chose] to proceed anyway.” See Jeffs, 2010
UT 49, ¶ 45. We therefore conclude that the arguments and the
evidence supporting Defendant’s mistake‐of‐fact defense also
support acquittal—if believed by the jury—under the instructions
provided. See Marchet, 2012 UT App 197, ¶ 19.
¶40 	Read as a whole, the instructions submitted to the jury
properly instructed on the applicable law and allowed the jury to
consider Defendant’s theory of the case. Accordingly, the trial court
did not err in refusing to instruct the jury on mistake of fact.
10. As noted, Victim was fifteen years old and Harman was in his
thirties when they had sex. See supra note 7. Because of this age
difference, the jury’s finding that Victim expressed her lack of
consent through words or conduct went beyond what the law
would require. See Utah Code Ann. § 76‐5‐406(11) (LexisNexis
Supp. 2013) (providing that an act of rape is without the consent of
the victim when “the victim is 14 years of age or older, but younger
than 18 years of age, and the actor is more than three years older
than the victim and entices or coerces the victim to submit or
participate, under circumstances not amounting to . . . force or
threat”). In affirming the trial court’s refusal to instruct the jury on
mistake of fact, we acknowledge that the jury could also have
found that the sex between Harman and Victim was nonconsensual
based 	on 	Harman’s 	actions 	and 	Victim 	and 	Harman’s 	age
difference.
20120477‐CA 	2014 UT App 68	21

State v. Dalton
IV. Amended Information
¶41 	Next, Defendant argues that the trial court exceeded its
discretion when it allowed the State to amend the information
during trial. In particular, Defendant asserts that he was prejudiced
by the State’s amendment to the information because a prior
amendment had caused his counsel to abandon his investigation
and preparation for an alibi defense.
¶42 	At the time of trial, rule 4(d) of the Utah Rules of Criminal
Procedure provided, “The court may permit an indictment or
information to be amended at any time before verdict if no
additional or different offense is charged and the substantial rights
of the defendant are not prejudiced.” Utah R. Crim. P. 4(d) (2011).11
Thus, “even if an amended information does create a new and
additional offense, reversal is only appropriate if the defendant can
demonstrate that his or her substantial rights are prejudiced as a
result of the amendment.” See State v. Hattrich, 2013 UT App 177,
¶ 39, 317 P.3d 433 (noting that rule 4(d) case law places the burden
on the defendant to establish prejudice on appeal); see also Utah R.
Crim. P. 30(a) (“Any error . . . which does not affect the substantial
rights of a party shall be disregarded.”).
¶43 	In this case, the State’s amendments did not include
“additional or different offense[s].” See Utah R. Crim. P. 4(d).
Defendant therefore claims that the trial court exceeded its
discretion by permitting the State to alter the dates of the offenses
charged 	in 	the 	information 	because 	the 	State’s 	amendment
prejudiced his substantial rights. In support of his argument,
11. Shortly after trial, rule 4 was amended to read, in relevant part,
“The court may permit an indictment or information to be
amended after the trial has commenced but before verdict if no
additional or different offense is charged and the substantial rights
of the defendant are not prejudiced.” See Utah R. Crim. P. 4(d)
(amended effective April 1, 2012).
20120477‐CA 	2014 UT App 68	22

State v. Dalton
Defendant asserts that his trial counsel initially began to gather
evidentiary support for a potential alibi defense that Defendant
could not have committed the charged crimes because Defendant
did not live in Utah in September 2005. According to Defendant,
his trial counsel abandoned efforts to collect potential witnesses
and 	bank 	records 	when 	the 	State 	filed 	the 	First 	Amended
Information, which changed the dates of the offenses from
September 1, 2005, to early 2005, when Defendant did live in Utah.
Defendant claims that permitting the State to change the dates back
to September 2005 through January 2006 during trial prejudiced his
ability to defend himself because three months earlier his trial
counsel stopped preparing his alibi defense for the later offense
dates.
¶44 	Defendant has not demonstrated that his substantial rights
were 	prejudiced 	by 	the 	State’s 	final 	amendments 	to 	the
information. Although a defendant is entitled to have the charges
against him “defined with such reasonable clarity that he can
mount a defense,” State v. Taylor, 2005 UT 40, ¶ 10, 116 P.3d 360
(citation and internal quotation marks omitted), Utah law does not
“expressly mandate” that the State identify “the exact date when
an alleged offense occurred,” id. ¶ 9; see also State v. Gulbransen,
2005 UT 7, ¶ 31, 106 P.3d 734 (“[T]he mere assertion of an alibi
defense does not impose on the prosecution the additional burden
of proving the precise date of the act. The burden on the
prosecution remains the same, i.e., to establish all elements of the
crime beyond a reasonable doubt.” (citation and internal quotation
marks omitted)). Here, the Information was filed in August 2010
and notified Defendant that he was charged with crimes alleged to
have occurred around September 1, 2005, with the Information’s
probable cause statement giving a date range of the crimes as
“between September 2005 and January 2006.” Further, Victim
allegedly testified at the preliminary hearing in April 2011 that the
crimes occurred around September when she was between fifteen
and sixteen years old, a time frame in the fall of 2005, or, according
to defense counsel’s interpretation of the preliminary hearing
transcript, that the offenses may have occurred as late as December
20120477‐CA 	2014 UT App 68	23

State v. Dalton
2005.12 The First Amended Information, filed three months before
trial, in January 2012, changed the dates of the conduct to “on or
about January 01, 2005 through June 30, 2005.” The prosecution
later explained this change as stemming from a misreading of
Victim’s 	school 	records. 	Although 	the 	Second 	Amended
Information filed during trial changed the relevant dates in the
charges themselves back to “on or about September 2005 through
January 2006,” Defendant had notice eighteen months before trial
that he was charged with crimes committed in late 2005. We
therefore agree with the trial court that Defendant had sufficient
notice over a long period of time about the general time period
involved in the case. In light of Victim’s apparent testimony at the
preliminary hearing and the unchanging dates in the probable
cause statement in each iteration of the information, it would not
have been reasonable for him to simply abandon preparations for
an alibi defense in response to the First Amended Information.
¶45 	Furthermore, even accepting Defendant’s claim that he was
no longer living in Utah at the time of the dates listed in the Second
Amended Information, the evidence presented at trial showed that
Defendant had the opportunity to commit the crimes in September
2005. Testimony about the details of the two offenses explicitly
places Defendant in Utah in late 2005. Furthermore, two witnesses
testified that Defendant made trips to Utah during the periods in
2005 when he was living out of state. Friend, who testified for the
defense, indicated that Defendant went to Arizona and Nevada in
2005 but that during that time, he periodically came back to Utah.
Friend testified that Defendant stayed for a couple days to a week
during 	these 	visits 	to 	Utah. 	Similarly, 	Harman’s 	testimony
indicated that Defendant traveled “a fair amount of time.” In fact,
Harman testified that Defendant returned from Nevada for a
12. Because a transcript of the preliminary hearing is not in the
record on appeal, our review is limited to counsel’s representations
to the trial court of what took place at the preliminary hearing.
20120477‐CA 	2014 UT App 68	24

State v. Dalton
church conference in Utah in October 2005. 13 Thus, contrary to
Defendant’s argument that it would have been impossible for him
to commit the crimes in late 2005, the evidence showed that
Defendant was in Utah at that time and had the opportunity to
commit the charged crimes. Cf. State v. Wilcox, 808 P.2d 1028, 1033
(Utah 1991) (reasoning that the defendant had not shown any
specific harm to his defense resulting from a lack of exact dates and
times in the information because “it [was] doubtful that an alibi
defense [was] a realistic possibility” when the defendant “had
continual contact with the [victim] half of the time” during the
period 	alleged 	in 	the 	information). 	Defendant 	has 	not
demonstrated that his substantial rights were prejudiced by the
State’s midtrial alterations to the information that he claims caused
his trial counsel to abandon preparations for his alibi defense.14
13. Harman also suggested that Defendant had been sexually
frustrated in Nevada and that Defendant reported that he had
“some relief” by being intimate with Victim.
14. In the alternative, Defendant now asserts that the trial court
should have granted him a continuance sua sponte when the State
moved to amend the information at trial. We review this claim for
plain error because although trial counsel opposed the State’s
motion to amend, he did not request a continuance below. “[T]o
establish the existence of plain error and to obtain appellate relief
from 	an 	alleged 	error 	that 	was 	not 	properly 	objected 	to,”
Defendant must show that “(i) [a]n error exists; (ii) the error should
have been obvious to the trial court; and (iii) the error is harmful.”
State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). “If any one of these
requirements is not met, plain error is not established.” Id. at 1209.
Here, Defendant has not shown any prejudice caused by the
claimed error that the trial court committed in not continuing the
trial on its own initiative. As we have explained, even if Defendant
had had additional time to collect more evidence that he lived in
Nevada in late 2005, the evidence also showed that he visited Utah
periodically 	during 	this 	time 	frame 	and 	that 	he 	had 	the
(continued...)
20120477‐CA 	2014 UT App 68	25

State v. Dalton
¶46 	Accordingly, we conclude that the trial court acted within its
discretion when it permitted the State to amend the dates of the
charged offenses during trial. Defendant had sufficient notice of the
charges against him, and his substantial rights were not prejudiced
by the amendment.
V. Allen Instruction
¶47 	Finally, Defendant contends that the trial court denied him
a fair and impartial trial, in violation of his Sixth Amendment
rights, by giving an Allen instruction that “coerced jury members
to reach a verdict after the jury had informed the judge that they
were unable to reach a verdict.” “[T]he non‐coercive use of Allen
charges 	is 	permitted 	in 	Utah 	because 	such 	charges 	[are] 	a
reasonable and proper exercise of the court’s power to guide the
jury to a fair and impartial verdict.” State v. Ginter, 2013 UT App 92,
¶ 6, 300 P.3d 1278 (alterations in original) (citation and internal
quotation marks omitted). In determining whether a particular
Allen instruction is coercive, we “consider [1] whether the language
of the supplemental charge can properly be said to be coercive [per
se], and [2] whether it is coercive under the specific circumstances
of the case.” State v. Harry, 2008 UT App 224, ¶ 7, 189 P.3d 98
(alterations in original) (citation and internal quotation marks
omitted). “Ultimately, the correctness of the charge must be
determined by the consideration of the facts of each case and the
exact words used by the trial court.” Ginter, 2013 UT App 92, ¶ 6
(citation and internal quotation marks omitted).
¶48 	“[T]here are certain inherently coercive ideas which should
not be included in an Allen instruction.” State v. Lactod, 761 P.2d 23,
14. (...continued)
opportunity to commit the charged crimes. Thus, we conclude that
the trial court did not plainly err by not granting Defendant a
continuance sua sponte.
20120477‐CA 	2014 UT App 68	26

State v. Dalton
31 (Utah Ct. App. 1988). For instance, the jury should not be
instructed that a criminal case must be decided by a verdict. Id.
Further, 	the 	instruction, 	in 	the 	light 	of 	the
circumstances under which it is given, should not
overemphasize the importance of an agreement,
suggest that any juror surrender his independent
judgment, or say or do anything from which the jury
could possibly infer that the court is indicating
anxiety for or demanding some verdict, or subjecting
the jury to the hardships of long deliberations.
Id. (citation and internal quotation marks omitted).
¶49 	Defendant argues that although the trial court claimed to be
giving an Allen instruction as approved by this court in State v.
Harry, 2008 UT App 224, 189 P.3d 98, the instruction that the trial
court gave here failed to meet that standard. In support of his
argument, Defendant points us to the language approved in
Harry,15 and to the American Bar Association’s (ABA) version of
verdict‐urging instructions.
¶50 	We have held that an Allen instruction need not be strictly
confined to the ABA model or to the precise language in Harry in
order to be deemed noncoercive. See id. ¶ 26; Ginter, 2013 UT App
92, ¶ 13 (citing Lactod, 761 P.2d at 30–31). In Harry, we expressed
our preference that Utah trial judges utilize the ABA model
instruction, indicating that it is “unlikely that adherence to the
ABA language, even after the jury has deadlocked, will be deemed
coercive under the circumstances.” 2008 UT App 224, ¶ 25. But
while we urged the use of the ABA model, we nevertheless
15. The court in Harry concluded that the Allen instruction was
coercive under the circumstances of the case, but it held that the
instruction itself was not coercive per se. State v. Harry, 2008 UT
App 224, ¶ 35, 189 P.3d 98.
20120477‐CA 	2014 UT App 68	27

State v. Dalton
“decline[d] . . . to limit [Utah] trial courts to using only the ABA
model.” Id. ¶ 26. Indeed, we have never required any “prescribed
ritual of words.” Lactod, 761 P.2d at 30 (citation and internal
quotation marks omitted). Thus, an Allen instruction need not
precisely conform to the ABA model or to the language approved
in prior cases.
¶51 	Defendant criticizes the language of Instruction 37 in three
ways, claiming that it is coercive per se. First, Defendant claims
that Instruction 37 “failed to inform the jury that it would be
discharged without having agreed upon a verdict if there were no
reasonable probability that it would reach one.” Again, “there is no
prescribed ‘ritual of words’ indicating whether the language of an
Allen charge is coercive,” id. (citation omitted), and the omission of
a particular phrase that could have been included in an Allen
instruction does not necessarily render the instruction coercive, see
State v. Thomas, 777 P.2d 445, 448 (Utah 1989) (concluding that an
instruction was not coercive even though it lacked language
“informing 	the 	jurors 	to 	make 	a 	decision 	based 	on 	their
independent judgment and according to their own consciences”).
Although Instruction 37 did not explicitly state that the jury could
be discharged if it could not reach a verdict, the instruction
conveyed the idea that the jury did not have an absolute duty to
reach a verdict. In particular, Instruction 37 stated that “it is your
duty to decide 	this case if you can without yielding your
conscientious convictions.” Additionally, the instructions given
before deliberations advised the jurors to “not give up [their]
honestly held views about the evidence simply to agree on a
verdict, to give in to pressure from other jurors, or just to get the
case over with.” The jury was further instructed, “Try to reach
unanimous agreement, but only if you can do so honestly and in
good conscience.” In view of all the instructions given, we are not
persuaded that the lack of language stating the jury could be
discharged without having reached a verdict renders Instruction 37
coercive per se.
20120477‐CA 	2014 UT App 68	28

State v. Dalton
¶52 	Second, Defendant argues that the tone of Instruction 37 was
“imperative and obligatory.” Specifically, Defendant objects to the
language stating, “The verdict to which each of you agree must be
your own,” and that the jury had a “duty to decide this case.”
According to Defendant, this language gives no allowance for the
possibility of not reaching a verdict. Defendant ignores the
qualifying language given to the jury. Instruction 37 stated, as
noted above, “[I]t is your duty to decide this case if you can without
yielding 	your 	conscientious 	convictions.” 	(Emphasis 	added.)
Moreover, it instructed the jurors, “The verdict to which each of
you agree must be your own and the result of your own
convictions and not a mere acquiescence in the conclusion of your
fellow jurors.” This additional language serves to counterbalance
any coercive impact the “duty to decide” language might have had
if taken in isolation. See Harry, 2008 UT App 224, ¶ 12. Almost
identical language was held not to be coercive per se in Harry. See
id. (“‘[I]t is your duty to agree upon a verdict if you can do so
without surrendering your conscientious conviction.’” (emphasis
omitted)). Again, as noted above, the instructions given before
deliberations 	directed 	the 	jury, 	“Try 	to 	reach 	unanimous
agreement, but only if you can do so honestly and in good
conscience.” The instructions further stated, “[I]n the end, your
vote must be your own,” and “[T]he 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.” Consequently, we reject Defendant’s claim
that the “duty to decide” language rendered Instruction 37 coercive
per se.
¶53 	Third, Defendant attacks Instruction 37’s language referring
to “a dissenting juror” and argues that it would have focused
undue pressure on any holdout juror. We disagree. Instruction 37
states in part,
If a larger number of your panel are for conviction, a
dissenting juror should consider whether a doubt in
his or her own mind is a reasonable one if it makes
20120477‐CA 	2014 UT App 68	29

State v. Dalton
no impression on the minds of so many other jurors
who are equally honest and intelligent and have
heard the same evidence and taken the same oath.
On the other hand, if a larger number of your panel
are 	for 	an 	acquittal, 	the 	minority 	should 	ask
themselves whether they ought to reasonably doubt
seriously the correctness of judgment which is not
concurred in by most of those with whom they are
associated, and distrust the weight and sufficiency of
that evidence which fails to carry conviction to the
minds of their fellow jurors.
This language of Instruction 37 is similar to that used in Harry.
There, the phrase “each dissenting juror” was used. Id. ¶ 17
(emphasis omitted). Although we recognized that “an instruction
delivered to a deadlocked jury that is directed only to the minority
jurors is more likely to be problematic,” we concluded that the
instruction as a whole was not coercive per se because it instructed
both the jurors in favor of conviction and those in favor of acquittal
to reexamine their conclusions. Id. ¶¶ 16–18; see also id. ¶ 16 n.8
(collecting cases when Allen instructions were deemed not to be
coercive per se despite being directed only to minority jurors). In
this case, we similarly conclude that Instruction 37 was not coercive
per 	se 	because 	it 	directed 	minority 	or 	dissenting 	jurors 	to
reexamine their conclusions whether “a larger number of [the]
panel” was in favor of or against conviction. See id. ¶¶ 16–18.
Accordingly, Instruction 37 contained no inherently coercive
language and was therefore not coercive per se.16
16. When the jury informs the judge that it is deadlocked as a result
of a single dissenting juror, “the focus of the modified Allen charge
on that single juror” may “creat[e] the possibility that the holdout
juror might have the mistaken impression that she was being
directly and individually instructed by the trial judge to defer to
the conclusions of the majority.” Harry, 2008 UT App 224, ¶ 32.
(continued...)
20120477‐CA 	2014 UT App 68	30

State v. Dalton
¶54 	Defendant also suggests that Instruction 37 was coercive
under the circumstances, arguing that by receiving Instruction 37
at nearly 5 p.m., the jury “may well have had the impression that
the court was going to require it to deliberate on into the night if
necessary until a verdict was reached.” The State claims that
Defendant did not preserve this coercive‐under‐the‐circumstances
argument. Defendant’s argument to the trial court regarding
Instruction 37 is as follows:
[DEFENSE]: I’ve never had to give an instruction like
this. If it’s been approved [in Harry], I don’t know
there’s much I can argue. The last part there where it
talks about conviction—or (inaudible) conviction, I
don’t personally like that language in both of those
but again, if there’s case law that’s already said this
is a good instruction, I don’t think there’s anything—
THE COURT: It says (inaudible) large number of
your panel for acquittal, so it does both—
[DEFENSE]: It does both. I personally don’t like that
language either way but again if the Court says it’s
approved, then I don’t think there’s anything I
can . . .
THE COURT: I believe it has been. . . .
[DEFENSE]: 	If 	I 	may, 	Your 	Honor, 	just 	for
preservation, object to just part of this language in
the instruction.
THE COURT: Okay.
16. (...continued)
Such situations have contributed to our holdings in prior cases that
the 	giving 	of 	Allen 	instructions 	was 	coercive 	under 	the
circumstances. See id. ¶¶ 32, 35; see also State v. Ginter, 2013 UT App
92, ¶¶ 4, 16, 300 P.3d 1278. Here, the jury did not inform the court
of how it was divided, and Defendant did not preserve a coercive‐
under‐the‐circumstances challenge to the language referring to “a
dissenting juror.” See infra ¶¶ 54–55.
20120477‐CA 	2014 UT App 68	31

State v. Dalton
[DEFENSE]: Are we on the record?
THE COURT: Yes.
[DEFENSE]: 	I 	understand 	the 	Court’s 	concern
with . . . the jury questions. In regards to that, the
language 	in this instruction where it starts off
towards the bottom, “If a larger number of your
(inaudible) conviction, the dissenting juror should”
and likewise the next sentence which talks about a
larger number of [the panel] for acquittal, I would
object to that language being included but again, I
defer to the Court’s judgment.
¶55 	The preservation requirement applies to constitutional
issues. See State v. Pullman, 2013 UT App 168, ¶ 27, 306 P.3d 827; see
also State v. Medina, 738 P.2d 1021, 1023–24 (Utah 1987) (reviewing
challenge to an Allen instruction only under ineffective assistance
of counsel because trial counsel affirmatively stated at trial that she
had no objection to the instruction). “Utah courts require specific
objections in order to bring all claimed errors to the trial court’s
attention to give the court an opportunity to correct the errors if
appropriate.” State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867 (citation
and internal quotation marks omitted). Therefore, “if a party makes
an objection at trial based on one ground, this objection does not
preserve for appeal any alternative grounds for objection.” Id.
Here, Defendant did not object in any way to the timing of the
instruction. Because Defendant did not raise this specific concern
at trial and does not assert any exception to the preservation rule
on appeal, we decline to consider the merits of Defendant’s
coercive‐under‐the‐circumstances argument.
CONCLUSION
¶56 	We affirm 	Defendant’s convictions. The admission of
evidence that Sister believed Victim’s story after Defendant asked
Sister to pose for nude pictures did not prejudice Defendant. For
the same reason, the trial court did not exceed its discretion in
20120477‐CA 	2014 UT App 68	32

State v. Dalton
denying a mistrial based on the admission of that evidence. We
conclude that the trial court did not err by refusing to instruct the
jury on mistake of fact because the instructions given to the jury
adequately conveyed the applicable law. The trial court acted
within its discretion when it permitted the State to amend the
information at trial because Defendant’s substantial rights were not
prejudiced 	by 	the 	amendment. 	Finally, 	the 	modified 	Allen
instruction given to the jury in this case was not coercive per se and
did not deny Defendant a fair and impartial trial.
20120477‐CA 	2014 UT App 68	33