State v. Alvarado

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
2014 UT App 87
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
ADRIAN J. ALVARADO,
Defendant and Appellant.
Opinion
No. 20120807-CA
Filed April 17, 2014
Second District Court, Ogden Department
The Honorable Michael D. Lyon
No. 111900399
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Marian Decker,
Attorneys for Appellee
SENIOR JUDGE PAMELA T. GREENWOOD authored this Opinion, in
which JUDGES J. FREDERIC VOROS JR. and STEPHEN L. ROTH
concurred.1
GREENWOOD, Senior Judge:
¶1 Defendant Adrian J. Alvarado appeals his four convictions
of various drug-related charges. He raises several claims of error,
each involving the State’s midtrial disclosure of previously
undisclosed and unanticipated evidence. We affirm.

State v. Alvarado
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BACKGROUND
¶2 On February 18, 2011, Agent Jared Francom, a member of
the Weber-Morgan Narcotics Strike Force, learned from a second
agent, Derek Draper, that drug dealing was suspected at a specified
house in Ogden, Utah. Agent Francom went to the house and
conducted surveillance from his vehicle. As he watched, a red car
arrived at the home, the male and female occupants of the car
entered the house, and shortly thereafter they exited and drove
away.
¶3 Agent Francom followed the car and observed a signaling
violation. He then radioed for assistance to stop the car because he
was in an unmarked car and wearing plain clothes. Officer Brett
Connors responded and eventually stopped the car. Both officers
exited their cars, and Officer Connors approached the driver while
Agent Francom went to the passenger side of the car. The driver,
Alvarado, told Officer Connors that he did not have a driver
license. Officer Connors arrested Alvarado for this violation. Upon
searching Alvarado incident to his arrest, the officers found a
bundle of $1,850 in cash, which Alvarado claimed was from a tax
refund.
¶4 During the arrest process, Agent Francom noticed a strong
smell of marijuana coming from inside the red car. He asked the
woman seated on the passenger side, Shelly Borrego, to step out of
the car. When she did so, Agent Francom noted that the marijuana
smell was even stronger. Agent Francom observed that Borrego
was nervous and seemed to be hiding something. Agent Francom
questioned Borrego as to whether she had anything on her, to
which she responded that the officer could check her pockets.
Agent Francom found nothing in Borrego’s pockets, but he
observed that she continued to act suspiciously, holding her arms
over her middle. He asked her again about having something on
her, at which point she took off her shoes and ran at Agent
Francom. Agent Francom was able to restrain Borrego, and Officer

State v. Alvarado
20120807-CA 3 2014 UT App 87
Connors helped handcuff her. Officer Connors then also detected
the marijuana odor.
¶5 While the officers were handcuffing Borrego, they saw a
small duffel bag sticking out from under her jacket. Agent Francom
opened the duffel bag and found grocery bags containing
marijuana and a digital scale and another bag containing balloons,
a funneling device, heroin, and psilocybin mushrooms. Borrego
refused to talk about the drugs, and because Agent Francom
suspected that the drugs really belonged to Alvarado, Agent
Francom questioned him about them. Alvarado denied that the
drugs were his or that he had any knowledge of them.
¶6 Although Alvarado denied any knowledge of the drugs
found on Borrego, he expressed interest in helping the police find
drug dealers so as to reduce charges against him and Borrego. He
offered to help the police by arranging a drug buy with large
distributors. Agent Francom arranged for Alvarado to meet with
several strike force members and attempt to arrange a buy. Officer
Connors then took Alvarado to meet with strike force members,
including Agent Draper and Agent Lynn Wright. Agent Draper
told Alvarado that the only deal available was to help Borrego and
that Alvarado would have to go to jail regardless. During this
conversation, Agent Draper told Alvarado that he needed to be
honest. Alvarado then admitted that the drugs found on Borrego
were his.
¶7 Alvarado spent several hours on his cell phone attempting
to arrange a drug deal, while Agent Draper monitored those calls.
Alvarado was unable to arrange a drug deal. While the attempts
were in process, Agent Francom arrived and had a conversation
with Alvarado, in which Alvarado admitted that he had planned
to use the cash found on him to buy more drugs, identified the
source of some of the drugs, and explained how to package heroin.
Thereafter, Agent Draper asked Agent Francom if Alvarado had
admitted to him that the drugs were his. Agent Francom said that
Alvarado had not. Agent Draper then questioned Alvarado about

State v. Alvarado
2. Borrego was charged with and pleaded guilty to possession of
the drugs found on her.
20120807-CA 4 2014 UT App 87
the drugs, Alvarado and Borrego made eye contact, and Borrego
then claimed ownership of the drugs. At this point, Agent Draper
told Alvarado that they no longer had any deal, and the officers
took both Alvarado and Borrego to jail.
¶8 Alvarado was charged with possession of heroin with intent
to distribute, possession of psilocyn, possession of marijuana, and
possession of drug paraphernalia. On the first day of trial, the
officers involved testified about the house surveillance, the traffic
stop, the discovery of the drugs, and Alvarado’s subsequent
admissions. The State also introduced evidence that a fingerprint
matching Alvarado’s was found on one of the grocery bags
containing the drugs. In response, the defense presented testimony
by Alvarado’s aunt that she had given him $1,500 in cash from her
tax return to buy a house. Borrego testified that the drugs were
solely hers and that Alvarado had no knowledge of them. She also
explained that she used grocery bags from her home and that
Alvarado occasionally did shopping for her family.2
¶9 On the morning of the second day of trial, the State moved
to admit, under rule 404(b) of the Utah Rules of Evidence and as
proof of lack of mistake, testimony that Alvarado had sold heroin
in a controlled buy just before the traffic stop at the house under
officer surveillance. The prosecutor stated that he had just learned
of this information the night before when speaking with Agent
Draper. According to Agent Draper, he and Agent Wright had
used a confidential informant to do the controlled buy at the house
immediately before the traffic stop occurred, and Agent Draper
had requested Agent Francom’s assistance because he wanted to
catch Alvarado with the drugs still on him. Agent Draper
reportedly had not said anything about the controlled buy earlier
because he wanted to protect the identity of the confidential
informant who facilitated the buy.

State v. Alvarado
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¶10 The trial court did not immediately rule on the motion, but
instead decided to wait to see whether Alvarado would testify and
deny knowing anything about the drugs and paraphernalia found
on Borrego. Defense counsel then requested, and was granted, ten
minutes to confer with Alvarado. Subsequently, Alvarado testified,
denying all knowledge of the drugs and paraphernalia found on
Borrego. Before cross-examination, the State renewed its request to
present evidence of the controlled buy. Defense counsel objected,
arguing that the admission of the evidence would be unfair and
prejudicial to Alvarado. Although clearly troubled by the late
disclosure of the evidence, the trial court ultimately granted the
motion to admit the evidence, reasoning, in part, that the evidence
was not a surprise to Alvarado because he was involved in the
controlled buy and could have told his counsel about it.
¶11 On cross-examination, Alvarado continued to deny
knowledge of the drugs found on Borrego and further denied
involvement in selling heroin prior to the traffic stop. Alvarado
claimed that prior to the stop, he was at his fiancée’s apartment and
a friend came by to sell him a camera. The State then called Agents
Draper, Wright, and Francom as rebuttal witnesses. Agent Draper
described the controlled heroin buy and Alvarado’s involvement
in the buy. Agent Draper also testified that he overheard Alvarado
agree to “front” a balloon of heroin to the confidential informant.
Agent Draper testified that after the traffic stop, Alvarado admitted
fronting the heroin and asked whether the confidential informant
was working for the police. Agent Wright largely confirmed Agent
Draper’s testimony about the controlled buy and Alvarado’s later
statements concerning the heroin exchange. And Agent Francom
testified that he had not known about the controlled buy but
testified about his response to Agent Draper’s request for assistance
in surveillance of the suspected drug house. Defense counsel
vigorously cross-examined the officers, highlighting weaknesses in
their testimonies, revealing inconsistencies between their current
testimony and their testimony given the day prior, and questioning
why no report of the alleged buy had ever been submitted.

State v. Alvarado
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¶12 After both parties rested, defense counsel moved to dismiss
based on a discovery violation under rule 16 of the Utah Rules of
Criminal Procedure. The trial court denied the motion, determining
that the prosecutor was unaware of the controlled buy evidence
until the night of the first day of trial and that Alvarado should not
have been surprised by the evidence. Thereafter, closing arguments
were presented, with defense counsel continuing to emphasize the
contradictory statements made by the officers and the lack of
supporting evidence for the controlled buy.
¶13 The jury returned a guilty verdict on all four counts. The
trial court denied Alvarado’s motion for a new trial based on
hearsay grounds. Alvarado timely appealed, raising other issues on
appeal.
ISSUES AND STANDARDS OF REVIEW
¶14 Alvarado first argues that the State committed a Brady
violation when it failed to disclose certain exculpatory evidence
before trial, see Brady v. Maryland, 373 U.S. 83, 87 (1963), and that
the trial court should have accordingly granted his motion to
dismiss. We review for correctness the legal standards applied by
the trial court in denying a defendant’s motion to dismiss. State v.
Bisner, 2001 UT 99, ¶ 31, 37 P.3d 1073.
¶15 Alvarado next argues that the State violated rule 16 of the
Utah Rules of Criminal Procedure when it failed to disclose
evidence of the controlled buy until midtrial and that the trial court
erred when it failed to provide relief under the rule. We review
such decisions by the trial court for an abuse of discretion. See State
v. Tanner, 2011 UT App 39, ¶ 5, 248 P.3d 61.
¶16 Finally, Alvarado raises a claim of ineffective assistance of
counsel based on his counsel’s failure to request notice of any
evidence intended to be introduced under rule 404(b). “An
ineffective assistance of counsel claim raised for the first time on

State v. Alvarado
20120807-CA 7 2014 UT App 87
appeal presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6,
89 P.3d 162.
ANALYSIS
I. Brady Violation
¶17 Alvarado argues that evidence of the controlled buy was, to
some extent, exculpatory and that the State violated his
constitutional right to due process by withholding this evidence.
He relies on Brady v. Maryland, 373 U.S. 83 (1963), which first
established that ”the prosecution bears a fundamental duty to
disclose material, exculpatory evidence to the defense” in criminal
cases, State v. Bisner, 2001 UT 99, ¶ 32, 37 P.3d 1073 (citation and
internal quotation marks omitted). This duty “arises regardless of
whether the defense requests production of the favorable evidence
at issue,” id., “applies to substantive as well as impeachment
evidence,” State v. Pinder, 2005 UT 15, ¶ 23, 114 P.3d 551, and exists
“irrespective of the good faith or bad faith of the prosecution,”
Brady, 373 U.S. at 87.
¶18 However, not every prosecutorial failure to disclose
potentially exculpatory evidence will result in “prejudicial error
requiring reversal of a conviction.” Bisner, 2001 UT 99, ¶ 36.
Instead, “a Brady violation occurs only where the state suppresses
information that (1) remains unknown to the defense both before
and throughout trial and (2) is material and exculpatory, meaning
its disclosure would have created a ‘reasonable probability’ that
‘the result of the proceeding would have been different.’” Id. ¶ 33
(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Because
the potentially exculpatory evidence here was disclosed midtrial,
no Brady violation is present. See id. (“[C]ourts universally refuse to
overturn convictions where the evidence at issue is known to the
defense prior to or during trial . . . .”); see also Pinder, 2005 UT 15,
¶ 28 (refusing to find a Brady violation because the defendant,

State v. Alvarado
3. Further, evidence of the prior drug buy was primarily
inculpatory and became exculpatory only when the officers
apparently lied on the stand about their initial involvement with
the case and the drug buy evidence then had impeachment value.
20120807-CA 8 2014 UT App 87
“prior to the end of his trial, knew or should have known of the
information he [alleged] was suppressed”); State v. Hamblin, 2010
UT App 239, ¶ 14, 239 P.3d 300. In this case, the evidence was3
revealed during trial and defense counsel was able to vigorously
cross-examine the officers. We therefore see no error on the part of
the trial court in failing to grant relief under Brady.
II. Rule 16 Violation
¶19 Alvarado also argues that the State violated rule 16 of the
Utah Rules of Criminal Procedure. This rule states that “the
prosecutor shall disclose to the defense upon request” both
inculpatory and exculpatory evidence, including “evidence known
to the prosecutor that tends to negate the guilt of the accused,
mitigate the guilt of the defendant, or mitigate the degree of the
offense for reduced punishment.” Utah R. Crim. P. 16(a) (emphasis
added). The rule also provides remedies for its violation:
If at any time during the course of the proceedings it
is brought to the attention of the court that a party
has failed to comply with this rule, the court may
order such party to permit the discovery or
inspection, grant a continuance, or prohibit the party
from introducing evidence not disclosed, or it may
enter such other order as it deems just under the
circumstances.
Id. R. 16(g).
¶20 Although Alvarado never made a formal discovery request
under rule 16, he argues that such a request was not necessary

State v. Alvarado
20120807-CA 9 2014 UT App 87
where the State had been voluntarily disclosing discovery. See
generally State v. Perez, 2002 UT App 211, ¶ 36, 52 P.3d 451 (“By its
voluntary disclosure of some inculpatory evidence, the State was
under ‘a continuing obligation to disclose newly acquired
information so as to avoid misleading the defense.’” (quoting State
v. Kallin, 877 P.2d 138, 143 (Utah 1994))). But even assuming,
without deciding, that the State was under an obligation to disclose
the controlled buy evidence under rule 16, Alvarado’s claim
nonetheless fails because defense counsel did not move for a
continuance to remedy the problems arising from the newly
disclosed evidence.
¶21 As the State points out, Utah courts have repeatedly
required defendants to seek the specific remedies listed in rule
16(g) in order to preserve an argument under the rule. See State v.
Griffiths, 752 P.2d 879, 883 (Utah 1988) (“Despite being informed of
defendant’s statements prior to trial and having reasonable
knowledge that such statements might be used by the prosecution,
defense counsel did not move for a continuance, to which he would
have been entitled. Thus, under the facts of this case, we conclude
that defendant waived relief under rule 16(g) . . . by not making
timely efforts to mitigate or eliminate the prejudice caused by the
prosecutor’s conduct.”); State v. Dick, 2012 UT App 161, ¶ 8, 280
P.3d 445 (“[W]e conclude that Defendant waived his right to
challenge that evidence when he did not request a continuance or
seek other relief under rule 16(g) . . . .”); State v. Rugebregt, 965 P.2d
518, 522 (Utah Ct. App. 1998) (“When the prosecution introduces
unexpected testimony, a defendant ‘essentially waive[s] his right
to later claim error’ if the defendant fails to request a continuance
or seek other appropriate relief under Rule 16(g).” (alteration in
original) (quoting State v. Larson, 775 P.2d 415, 418 (Utah 1989))).
Alvarado responds that defense counsel did request relief under
rule 16(g) because counsel requested both exclusion of the evidence
and dismissal of the case, the former being a specific remedy
mentioned in rule 16(g) and the latter falling under the language
allowing the court to “enter such other order as it deems just under
the circumstances,” Utah R. Crim. P. 16(g).

State v. Alvarado
20120807-CA 10 2014 UT App 87
¶22 However, the relief requested by Alvarado did not free him
of the responsibility to request a continuance to mitigate damage
arising from surprise evidence. First, as to the motion to dismiss,
prior case law has drawn a distinction between moving to dismiss
and moving for the types of relief specifically referenced in rule
16(g). In State v. Christofferson, 793 P.2d 944 (Utah Ct. App. 1990),
the defendant complaining of a discovery violation “did not object,
request a continuance, or call for a mistrial. Rather, [the] defendant
moved to dismiss.” Id. at 948. This court affirmed the trial court’s
denial of the motion to dismiss where “there were other, less harsh
remedies specifically mentioned in the [rule] available to [the
defendant].” Id. The court reasoned, “[The] defendant’s failure to
mitigate the impact of the unexpected testimony by objecting to its
admission or moving for either a continuance or a mistrial
precludes his claim that it was error to not grant his motion to
dismiss.” Id. Finally, the court broadly concluded, “Dismissal is
proper only when all other attempts to mitigate damage caused by
unexpected evidence have failed.” Id. (emphasis added). And
second, regarding Alvarado’s objection seeking exclusion of the
evidence, we have previously required defendants to request a
continuance to preserve a rule 16 argument even when they have
already made an objection to the evidence’s admission. See State v.
McClellan, 2008 UT App 48, ¶ 34, 179 P.3d 825, rev’d on other
grounds, 2009 UT 50, 216 P.3d 956; Rugebregt, 965 P.2d at 520–23.
¶23 State v. McClellan is particularly applicable to this case
because the objected-to evidence was known by police officers
early on but revealed to the prosecutor only after trial had
commenced. See 2008 UT App 48, ¶ 30. This court acknowledged
that “‘[i]nformation known to police officers working on a case is
charged to the prosecution since the officers are part of the
prosecution team.’” Id. ¶ 30 n.7 (quoting State v. Shabata, 678 P.2d
785, 788 (Utah 1984)). The same is true in this case, and failure to
disclose the evidence prior to trial was thus a violation of rule
16(g). The McClellan court further rejected the defendant’s
argument that a motion to suppress the evidence offered was a

State v. Alvarado
4. Alvarado has not argued that this decision as to remedies
amounted to ineffective assistance of trial counsel.
20120807-CA 11 2014 UT App 87
request for “‘other appropriate relief under Rule 16(g)’” and
determined that “a further motion to continue the proceedings was
required to preserve the claim of surprise.” Id. ¶¶ 31–32 (citing
Rugebregt, 965 P.2d at 523). While we recognize the disruptive
impact that late disclosure of such information could have had on
counsel’s defense strategy (and even composure), the request for
a continuance provides a simple and straightforward remedy
designed for the kind of complex problems that this type of
surprise can create. But rather than requesting a continuance to
assess the impact of the new information and craft a
response—through calling additional witnesses or
otherwise—Alvarado limited his requested remedies to exclusion
of the evidence or dismissal of the case. Alvarado’s claim under4
rule 16 was therefore waived.
III. Rule 404(b)
¶24 Alvarado argues that his trial counsel was ineffective for
failing to request pretrial notice under rule 404(b) of the Utah Rules
of Evidence. Rule 404(b) provides for the admission of evidence of
a defendant’s prior crimes, wrongs, or other acts for certain limited
uses. See Utah. R. Evid. 404(b). The rule contains a notice provision
for such evidence:
On request by a defendant in a criminal case, the
prosecutor must:
(A) provide reasonable notice of the general
nature of any such evidence that the prosecutor
intends to offer at trial; and
(B) do so before trial, or during trial if the
court excuses lack of pretrial notice on good cause
shown.

State v. Alvarado
20120807-CA 12 2014 UT App 87
Id. R. 404(b)(2) (emphasis added). Alvarado acknowledges that trial
counsel failed to request notice under rule 404(b) but argues that
such failure amounts to ineffective assistance of counsel.
¶25 “‘To prevail [on a claim of ineffective assistance], a
defendant must show, first, that his counsel rendered a deficient
performance in some demonstrable manner, which performance
fell below an objective standard of reasonable professional
judgment and, second, that counsel’s performance prejudiced the
defendant.’” Parsons v. Barnes, 871 P.2d 516, 521 (Utah 1994)
(quoting Bundy v. Deland, 763 P.2d 803, 805 (Utah 1988)). However,
we need not “‘address both components of the inquiry if [a
defendant] makes an insufficient showing on one.’ When it is
‘easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice,’ we will do so without addressing whether
counsel’s performance was professionally unreasonable.” Id. at 523
(quoting Strickland v. Washington, 466 U.S. 668, 697 (1984))
(additional citations omitted). “To show prejudice . . . , a defendant
must proffer sufficient evidence to support ‘a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’” Id. at 522 (quoting
Strickland, 466 U.S. at 694).
¶26 Initially, we recognize that under the facts here, even had
trial counsel requested notice under rule 404(b), Alvarado would
not have received pretrial disclosure of evidence of the controlled
buy because such information was not actually known to the
prosecutor before trial. Thus, the question is not whether a pretrial
disclosure would have been more favorable for Alvarado than a
midtrial disclosure, but instead, how the State’s midtrial disclosure
would have been addressed by the trial court had 404(b) notice
been requested and whether this would have given rise to a
reasonable probability of a more favorable result for Alvarado.
¶27 Even if trial counsel had requested notice under rule 404(b),
we are not convinced that the trial court would have excluded

State v. Alvarado
5. Admission of the evidence after consideration of the State’s
failure to provide notice under rule 404(b) would likely trigger the
same analysis as under rule 16, that is, the application of the
requirement to request a continuance, see supra ¶¶ 20–23.
6. We do, however, note our concern with the trial court’s
reasoning that evidence of the controlled buy was not a surprise to
Alvarado because he had participated in the buy. Such reasoning
failed to accord Alvarado the presumption of innocence and
instead presumed that he had indeed been involved in the drug
buy despite his assertions to the contrary. See generally State v.
Sullivan, 307 P.2d 212, 215 (Utah 1957) (stating that the
presumption of innocence is “of the utmost importance as [a]
safeguard[] against the possibility of convicting the innocent” and
that we should “scrupulously adhere” to the presumption
“notwithstanding the difficulties encountered and the possibility
that some guilty may escape punishment”).
20120807-CA 13 2014 UT App 87
evidence of the controlled buy. The notice requirement of rule5
404(b) gives a trial court discretion to allow midtrial disclosure of
rule 404(b) evidence upon “good cause shown.” Utah R. Evid.
404(b)(2)(B). The trial court here made findings consistent with a
determination that good cause was shown for the prosecutor’s late
disclosure of the controlled buy evidence, specifically, that the
prosecutor was unaware of the evidence until the prior evening
and had acted in good faith.6
¶28 Further, even had the trial court refused to admit the
midtrial disclosure of the controlled buy evidence, we are not
convinced that the exclusion of this evidence would have resulted
in a reasonable probability of a more favorable result for Alvarado.
First, there exists other strong evidence of Alvarado’s guilt. That
evidence includes his fingerprint that was found on a grocery bag
containing the drugs, the fact that he was carrying $1,850 in cash on
his person, and testimony that Alvarado admitted that the drugs
found on Borrego were his, explained how to package heroin, and

State v. Alvarado
20120807-CA 14 2014 UT App 87
offered to arrange a large drug buy with some of his contacts.
Further, the jury apparently found the officers credible,
notwithstanding the inconsistencies of their testimonies. And it is
likely that the jury’s reliance on the officers’ testimonies would
have been even greater in the absence of evidence of the controlled
buy and the resulting testimony inconsistencies that diminished
their credibility.
CONCLUSION
¶29 Because potentially exculpatory evidence was disclosed
midtrial, there was no Brady violation. Alvarado’s claim of a
violation under rule 16 was waived when defense counsel failed to
request a continuance. Finally, Alvarado’s claim that trial counsel
was ineffective because he did not request pretrial notice under
rule 404(b) fails for lack of prejudice. Accordingly, we affirm.