Salt Lake City v. Reyes-Gutierrez

2017 UT App 161

THE UTAH COURT OF APPEALS

SALT LAKE CITY,
Appellee,
v.
RAFAEL REYES-GUTIERREZ,
Appellant.

Opinion
No. 20150755-CA
Filed August 24, 2017

Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 141911985

Melissa G. Stirba, Attorney for Appellant
Simarjit S. Gill and Curtis M. Tuttle, Attorneys
for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN concurred.1

POHLMAN, Judge:

¶1 After his first trial ended in a mistrial granted on his own
motion, Defendant Rafael Reyes-Gutierrez was retried and
convicted of one count of retail theft, a class A misdemeanor.
Reyes-Gutierrez appeals his conviction on double jeopardy
grounds, asserting that the prosecutor goaded him into seeking a
mistrial in the initial proceeding, and retrial was therefore
constitutionally barred. We affirm.

1. Judge Stephen L. Roth participated in this case as a member of
the Utah Court of Appeals. He retired from the court before this
decision issued.
Salt Lake City v. Reyes-Gutierrez

BACKGROUND

The First Trial

¶2 Reyes-Gutierrez left a retail store without paying for a
pair of shoes he had placed in his shopping bag. The City
charged Reyes-Gutierrez with retail theft under Utah Code
section 76-6-602 and enhanced the charge from a class B to a
class A misdemeanor based on his prior theft convictions. See
Utah Code Ann. § 76-6-412(1)(c)(iii) (LexisNexis Supp. 2016)
(providing that theft of property valued less than $500 is
punishable as a class A misdemeanor if the defendant was twice
convicted of other theft offenses within ten years of the present
offense).

¶3 Several days before Reyes-Gutierrez’s first trial, defense
counsel notified the prosecutor that she was unable to view the
copy of the store’s surveillance video that the City had produced
in discovery. The prosecutor tried to view his copy of the same
video but discovered it also did not work. When the prosecutor
asked the store’s loss prevention supervisor if he could get
another copy, he was told the store no longer had the video. The
prosecutor told defense counsel that because he could not get the
video to work, he would not be using it at trial.

¶4 The City’s first witness at trial was an asset protection
associate who testified that he observed Reyes-Gutierrez try to
leave the store without paying for the shoes. On cross-
examination, the associate explained that he observed the theft
through the store’s video surveillance system. When asked if he
brought a video recording of the incident to court, he stated that
he did not but that he previously gave one to the police. On
further examination by both parties, the associate provided
additional testimony about his familiarity with the store’s video
files and its ability to preserve video recordings.

¶5 The City next called the Salt Lake City police officer who
investigated the theft. He testified on direct examination that he
did not recall whether he had reviewed video surveillance

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footage of the theft. On cross-examination, the officer testified
that he had received a copy of the video from the store asset
protection associate but that he did not bring a copy of the video
to court.

¶6 After the officer’s testimony, the jury was excused for
lunch. During a conference with the court, the City’s attorneys
expressed concern that defense counsel’s cross-examination of
the witnesses suggested that there was a video recording of the
theft that the City had either lost or withheld and that the City
had acted improperly. The prosecutor stated: “I think it would
be appropriate to notify the jury that there is a video, the
prosecution provided it to the defense, [and] neither side has
been able to make it work.” The prosecutor also questioned
whether it would be appropriate to call defense counsel to testify
about whether the City gave the defense a copy of the video and
whether she could get it to play.

¶7 The trial court agreed that the impression had been left
that there was a video “hanging out somewhere” and told the
attorneys that they would “have to figure out a way to put it
before the jury as evidence” because the court could not instruct
the jury about evidence unless the parties stipulated to an
instruction. The City’s attorneys indicated their preference for a
stipulated instruction, stating that “otherwise [the City will]
have to call [defense counsel] to testify.” The trial court told the
parties to discuss how they wanted to proceed, stating that “it
wouldn’t be the first time that a lawyer has called another
lawyer who is on the case as a witness.”

¶8 During the ensuing recess, the City learned that Reyes-
Gutierrez did not intend to testify. Defense counsel also told the
City that Reyes-Gutierrez would stipulate to a jury instruction
regarding the video. However, just before court resumed,
defense counsel changed course and told the prosecutor that she
would not stipulate to the City’s proposed instruction.

¶9 After the break, and before any further discussion about
the video, the prosecutor raised a concern with the court

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regarding defense counsel’s opening statement. Defense counsel
had told the jury that the evidence would show that Reyes-
Gutierrez “wasn’t trying to take the shoes without paying for
them,” and this case was about a “simple human error.” The
prosecutor argued that no evidence had been provided to that
effect and that, in light of Reyes-Gutierrez’s intention not to
testify, “either a mistrial would be appropriate or else . . . the
City should be able to present evidence [of prior convictions]
contrary to the assertion.” Defense counsel objected to both
alternatives, and the prosecutor submitted the issue without
further argument. The court denied the City’s request.

¶10 Defense counsel then asked the trial court to address the
possibility of her being called to testify about the video. The
prosecutor weighed in, explaining that the parties “had a
stipulation before the lunch break,” but as the proceeding
resumed “it was unstipulated and so [they were] left having to
figure out how to deal with it from there.” Defense counsel then
argued that the issue of the video was irrelevant, and if the City
attempted to call her, she would “have to move for a mistrial at
that point.”

¶11 Before the City responded, the trial court commented
that, “if the defendant stipulates to a mistrial,” the court would
grant it. The court expressed the view that because the jury had
been left with the impression that the City had chosen not to use
or had lost the video, “it may be necessary for the City to put on
evidence about the videotape, that the videotape was turned
over to the defense, [and] that it didn’t work.” In response, the
prosecutor suggested that the City might be able to call someone
else from defense counsel’s office to testify that the defense had
received the video, and the court and the prosecutor discussed
other possible alternatives to calling defense counsel as a
witness. Defense counsel reiterated that she would move for a
mistrial if called to testify.

¶12 After a brief recess, the prosecutor informed the court that
no agreement had been reached and that he would be calling
defense counsel to testify. Defense counsel objected and again

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stated that if the City tried to call her, she would ask for a
mistrial. The court then informed the parties that it was “wholly
appropriate” for either the prosecutor or defense counsel, or
both of them, to testify about the video and their knowledge
about its functionality. Defense counsel proposed that the police
officer be recalled, but the court and the prosecutor agreed that
he could not testify about what had been given to the defense.

¶13 Following some additional discussion, the court stated
that it might allow defense counsel to be called as a witness
unless there was someone else from her office who could testify
about the video. The court then asked, “Are you moving for a
mistrial?” Defense counsel repeated that she would move for a
mistrial if the City called her as a witness. Co-counsel for the
City then interjected, stating that rather than retry the case, the
City could call the prosecutor as a witness. Defense counsel
again objected.

¶14 At that point, the court asked for any last comments from
the attorneys. Co-counsel for the City expressed her view that
the City had attempted to do everything it could “to make this
case go forward at this time,” including calling the prosecutor to
testify about the video instead of defense counsel, but that the
City would stipulate to a mistrial if a motion were made.
Defense counsel responded, “I think if you are going to allow
attorneys to be called as witnesses in this case then I am forced
to move for a mistrial.”

¶15 The court stated that it would allow the prosecutor to
testify and noted that defense counsel “has moved for a
mistrial.” When asked if the City stipulated to the mistrial, co-
counsel for the City stated, “[W]e’re willing to go forward to do
whatever we need to go forward with trial today but it appears
that we are at a stalemate and we will stipulate.” The court then
confirmed Reyes-Gutierrez’s agreement and declared a mistrial.
The prosecutor indicated the City’s intent to file a rule 404(b)
notice and a motion in limine to avoid on retrial the issues that
arose relating to the video and the mistake defense.

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The Motion to Bar Retrial

¶16 Reyes-Gutierrez filed a motion to bar retrial on double
jeopardy grounds, arguing that the City goaded him into seeking
a mistrial so that it could retry him under more favorable
conditions. During a hearing on the motion, before the same
judge who presided over the trial, the prosecutor asked to be
placed under oath. He testified that after the court denied the
City’s motion to either admit evidence relevant to the mistake
defense or declare a mistrial, he “did not want a mistrial on the
case, [he] wanted to finish the trial that day.”

¶17 The prosecutor also testified about how important
presenting evidence regarding the video was to the City. He
described how he had met with the police officer during a break
in the first trial to try to get the video to work and explained that
he did not call the officer or the asset protection associate to
testify about its functionality because neither one had the
requisite knowledge. The prosecutor also explained that defense
counsel would not tell him who else from her office had “tried to
get the video to work” and that he thought she was the best
witness “because she knew that she had been provided the video
and she knew about [their] conversation.”

¶18 With regard to the City’s stipulation to the motion for a
mistrial, the prosecutor explained that it became clear to him
based on defense counsel’s strong objections that an appeal
would be likely if either he or defense counsel were allowed to
testify. He agreed to the mistrial to avoid a likely appeal and
because the trial had “broken down.” Finally, the prosecutor
testified that there was never “some sort of nefarious conspiracy
or strategy” to trick Reyes-Gutierrez into a mistrial and that his
decisions were not based on a suggestion from the City’s co-
counsel that it would be better to restart and try the case another
day.

¶19 Based on the prosecutor’s testimony and the trial judge’s
recollection of the first trial, the court denied Reyes-Gutierrez’s
motion and found the City’s intended purpose “in asking that

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[the prosecutor] be allowed to testify was to get certain facts
before the jury and not to obtain a mistrial and not to goad the
defense into making a motion for a mistrial.” Additionally, the
court found, “[T]his was a situation where the attorneys and
frankly the Court . . . were doing their best to address fast
moving issues . . . and the lawyers were doing their best . . . to
make the best decisions that they could.” The court noted that
the City’s stipulation to a mistrial “may have been a tactical
decision to avoid appeal issues or other reasons” but that “the
request to call [the prosecutor] as a witness and so forth [was]
not made . . . to goad the defendant into asking for a mistrial.”

The Second Trial

¶20 Reyes-Gutierrez was retried and found guilty by the jury
and sentenced by the court. He appeals.

ISSUE AND STANDARD OF REVIEW

¶21 The sole issue on appeal is whether the trial court
erroneously concluded that the prosecutor did not intend to
provoke Reyes-Gutierrez into requesting a mistrial. Whether a
prosecutor intended to goad a defendant into moving for a
mistrial is a question of fact, see Oregon v. Kennedy, 456 U.S. 667,
675 (1982), and we will uphold a trial court’s factual
determination regarding prosecutorial intent unless we conclude
it is clearly erroneous, see State v. Levin, 2006 UT 50, ¶ 20, 144
P.3d 1096; see also United States v. Valadez-Camarena, 163 F.3d
1160, 1163 (10th Cir. 1998) (“[I]n the specific context of double
jeopardy goading cases, we will uphold the trial court’s
determination unless we conclude it is clearly erroneous.”).

¶22 A factual finding is clearly erroneous only if it is “against
the clear weight of the evidence” or if, after looking at the record
as a whole, we reach “a definite and firm conviction that a
mistake has been made.” State v. Hinmon, 2016 UT App 215, ¶ 9,
385 P.3d 751 (citation and internal quotation marks omitted).
“Our role is not to reweigh the evidence, but to determine only if

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the appellant has demonstrated a lack of evidentiary support for
the trial court’s findings.” Utah Dep’t of Transp. v. TBT Prop.
Mgmt., Inc., 2015 UT App 211, ¶ 23, 357 P.3d 1032. The mere fact
that this court might have reached a different result on the
evidence presented does not justify setting aside the trial court’s
findings. State v. Walker, 743 P.2d 191, 193 (Utah 1987).

ANALYSIS

I. Double Jeopardy

¶23 The prohibitions against double jeopardy contained in the
Fifth Amendment to the United States Constitution, the
Utah Constitution, and the Utah Code protect a criminal
defendant from repeated prosecutions for the same offense. See
U.S. Const. amend. V; Utah Const. art. I, § 12; Utah Code Ann.
§ 77-1-6(2)(a) (LexisNexis 2012); State v. Rudolph, 970 P.2d 1221,
1230 (Utah 1998).2 “[P]art of this protection against multiple

2. Reyes-Gutierrez refers in his brief to the double jeopardy
protections afforded by both federal and state law, asserting that
the respective provisions “contain . . . the same content.”
(Citation and internal quotation marks omitted.) But see State v.
Harris, 2004 UT 103, ¶ 23, 104 P.3d 1250 (“[T]he double jeopardy
guarantees afforded defendants under the Utah Constitution are
different from and provide greater protection than those
afforded by the United States Constitution . . . .”). Because
Reyes-Gutierrez does not argue for greater protection under the
Utah Constitution than is afforded by the Fifth Amendment to
the United States Constitution, and principally relies on case law
interpreting double jeopardy protections under the Fifth
Amendment, we will not engage in a separate state
constitutional analysis. See id. (“[A]s a general rule, we will not
engage in [a] state constitutional analysis unless an argument for
different analyses under the state and federal constitution is
(continued…)

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prosecutions . . . affords a criminal defendant a valued right to
have his trial completed by a particular tribunal.” Oregon v.
Kennedy, 456 U.S. 667, 671–72 (1982) (citation and internal
quotation marks omitted). This protection against double
jeopardy, however, ordinarily does not bar retrial where a
mistrial is granted at the defendant’s request. See id. at 672–73;
State v. Manatau, 2014 UT 7, ¶ 10, 322 P.3d 739. This is because
“[a] defendant’s motion for a mistrial constitutes ‘a deliberate
election on his part to forgo his valued right to have his guilt or
innocence determined before the first trier of fact.’” Kennedy, 456
U.S. at 676 (quoting United States v. Scott, 437 U.S. 82, 93 (1978)).

¶24 But there is a narrow exception to this general rule. A
defendant who successfully moves for a mistrial “may invoke
the bar of double jeopardy” to a second trial where the
governmental conduct giving rise to the mistrial “was intended
to provoke the defendant into moving for a mistrial.” Id. at 679;
see also State v. Lafferty, 2001 UT 19, ¶ 149, 20 P.3d 342 (“[Double
jeopardy] can bar retrial where a judge or prosecutor acts in bad
faith with the intent to provoke a mistrial in order to provide the
prosecution with a more favorable opportunity to convict.”);
State v. Pearson, 818 P.2d 581, 584 (Utah Ct. App. 1991) (stating
that double jeopardy bars retrial “where bad faith conduct by
the trial court or prosecutor was intended to provoke a
mistrial”). Even prosecutorial misconduct that is harassing or
overreaching, although sufficient to warrant a mistrial, will not
bar a second trial absent such intent. Kennedy, 456 U.S. at 675–76;
State v. Trafny, 799 P.2d 704, 709 (Utah 1990). This standard
requires a trial court to examine the subjective intent of the
prosecutor and make a finding of fact. Kennedy, 456 U.S. at 675.
While the United States Supreme Court has acknowledged that
this standard is “not entirely free from practical difficulties,” the
standard is “manageable . . . to apply,” allowing trial courts to

(…continued)
briefed.” (second alteration in original) (citation and internal
quotation marks omitted)).

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“[i]nfer[] the existence or nonexistence of intent from objective
facts and circumstances.” Id.

II. Prosecutorial Intent

¶25 Reyes-Gutierrez contends that the trial court clearly erred
in finding that the prosecution did not intentionally provoke him
into moving for a mistrial. “[T]he burden of overturning factual
findings is a heavy one.” Brown v. State, 2013 UT 42, ¶ 69 n.63,
308 P.3d 486 (citation and internal quotation marks omitted). To
succeed on appeal, Reyes-Gutierrez cannot “simply restate or
review evidence that points to an alternate finding or a finding
contrary to the trial court’s finding of fact.” See Ostermiller v.
Ostermiller, 2010 UT 43, ¶ 20, 233 P.3d 489 (citation and internal
quotation marks omitted). Rather, to show clear error, he must
identify the supporting evidence and explain why the trial
court’s factual finding is nonetheless against the clear weight of
the evidence. See Brown, 2013 UT 42, ¶ 37; State v. Shipp, 2005 UT
35, ¶ 20, 116 P.3d 317.

¶26 Here, after hearing argument on Reyes-Gutierrez’s
motion to bar retrial and the sworn testimony of the prosecutor,
the trial court found that the City did not goad the defense into
seeking a mistrial. The court determined that the City asked to
have the prosecutor testify to put certain facts before the jury
relating to the store surveillance video and not to goad the
defense into moving for a mistrial. Reyes-Gutierrez contends
that these findings are clearly erroneous. He argues that “the
objective facts and circumstances surrounding the first trial
show the City’s intent to provoke [his] mistrial motion,” and that
the trial court’s findings—made without the benefit of the trial
transcript—were against the clear weight of the evidence. We
disagree.

¶27 Contrary to Reyes-Gutierrez’s contention, the record
supports the trial court’s findings that rather than trying to goad
the defense into moving for a mistrial, the prosecutor was
attempting to educate the jury about the functionality of the
video. The trial court’s findings were supported by the sworn

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testimony of the prosecutor as well as the prosecutor’s efforts to
avoid a mistrial and the manner in which the circumstances
unfolded during the initial proceeding.

¶28 At the hearing on Reyes-Gutierrez’s motion to bar retrial,
the prosecutor offered to testify, under oath and subject to cross-
examination, to enable the trial court to assess his credibility.
While under oath, the prosecutor repeatedly affirmed that he
had no intention of goading the defense into seeking a mistrial.
He explained that after his own mistrial motion was denied, he
“did not want a mistrial on the case” and “wanted to finish the
trial that day.” He testified that it was important to him that the
jury understood that the City had provided the store
surveillance video to the defense and was not hiding anything.
He believed the best way to accomplish that goal was to call
defense counsel to testify about the video and her conversations
with the prosecutor, but he was also willing to testify.

¶29 The trial court implicitly found the prosecutor to be
credible, accepting his testimony that he did not intend to goad
Reyes-Gutierrez into requesting a mistrial. Reyes-Gutierrez
concedes that the trial court may consider the testimony of the
prosecutor in determining prosecutorial intent, and
acknowledges that this court must give due regard to the trial
court’s opportunity to judge the prosecutor’s credibility, but
argues that the prosecutor’s denial of intent to provoke a mistrial
is not dispositive. While we agree that a trial court is not
required to blindly accept a prosecutor’s testimony as true, the
trial court properly considered the prosecutor’s sworn testimony
in light of the attendant circumstances in determining
prosecutorial intent, and we owe considerable deference to that
determination. See Oregon v. Kennedy, 456 U.S. 667, 680 (1982)
(Powell, J., concurring) (recognizing the relevance of a
prosecutor’s testimony on the question of intent); Taft v. Taft,
2016 UT App 135, ¶ 44, 379 P.3d 890 (recognizing the
considerable deference owed to the “trial court’s discretion to
weigh the evidence and accept what it finds to be most credible
and reject or give less weight to the rest”).

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¶30 In addition, the trial court did not base its findings solely
on the prosecutor’s testimony. Rather, the court also relied on its
firsthand observation of the events as they unfolded during the
first trial, and its findings are consistent with those events.

¶31 After the jury had been excused for lunch, the prosecutor
expressed the need to develop evidence to show that the City
provided a copy of the video to Reyes-Gutierrez but that neither
side could get the video to play. He first asked for a jury
instruction on the issue, but when the trial court stated that an
instruction would require defense counsel’s stipulation, the
prosecutor suggested calling defense counsel to testify while the
City’s co-counsel suggested that there might be other witnesses
who could testify. The trial court instructed counsel to discuss
the issue, stating that “it wouldn’t be the first time that a lawyer
has called another lawyer who is on the case as a witness.”

¶32 During the lunch recess that followed, defense counsel
indicated that she would stipulate to a jury instruction but
withdrew that stipulation shortly before court resumed. Once
back on the record, defense counsel raised the issue of whether
she could be called to testify regarding the video, stating that if
she were called she would move for a mistrial. Before the City
responded, the court stated that it would declare a mistrial if
Reyes-Gutierrez consented to it. Rather than insisting on calling
defense counsel (and thereby immediately securing a mistrial),
the prosecutor continued to explore other options. He speculated
that perhaps another person in defense counsel’s office could
testify about receipt of the video, and the court took a brief
recess so that the parties could decide how to proceed.

¶33 When the parties returned, the City repeated its intention
to call defense counsel to testify, and defense counsel again
stated that she would move for a mistrial if so called. Rather
than simply accept the mistrial, the City resisted and suggested
that it call the prosecutor to testify instead. Defense counsel
again objected and stated that she would move for a mistrial if
the court allowed either attorney to testify. The trial court stated
that it would allow the prosecutor to testify and asked the City if

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it stipulated to a mistrial. The City stated that it preferred to
proceed, but because of the impasse would so stipulate.

¶34 The prosecutor later explained that he could not call
someone else from defense counsel’s office to testify because
defense counsel would not reveal who else (if anyone) had
attempted to play the video. Similarly, although he considered
other alternatives, he was the only one from his office who could
testify about the City’s efforts to play the video and the fact that
the City had provided a copy of the video to the defense.

¶35 These objective facts support the trial court’s
determination that rather than seeking to goad the defense into
moving for a mistrial, the prosecutor was “doing [his] best to
address fast moving issues” and looking for alternatives to
resolve the issue short of a mistrial. If the prosecutor’s sole
objective was to secure a mistrial as Reyes-Gutierrez contends,
the prosecutor presumably would not have sought defense
counsel’s stipulation to a jury instruction and would have agreed
to a mistrial the first time defense counsel suggested it.

¶36 Reyes-Gutierrez invites us to disregard this evidence,
contending that the City’s failed motion for a mistrial earlier in
the trial “is an objective and persuasive indicator that the City
wanted the first trial to end in a mistrial.” He states that
“[w]ithout another avenue through which it could have
remedied its deficient preparation for trial, including to rebut the
defense of mistake, the City engaged in a strategy that it was
well-aware would provoke a mistrial motion from Reyes-
Gutierrez.”

¶37 While we agree that the fact that the City moved for its
own mistrial could support a finding of prosecutorial intent to
provoke a mistrial, it does not compel us to conclude that the
trial court clearly erred in reaching a different conclusion. “Trial
courts are accorded wide latitude in determining factual
matters,” Valcarce v. Fitzgerald, 961 P.2d 305, 314 (Utah 1998)
(plurality opinion), and Reyes-Gutierrez is effectively asking us
to reweigh conflicting evidence and draw a different conclusion.

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But Reyes-Gutierrez “may not simply reargue [his] position
based on selective excerpts of evidence presented to the trial
court.” ProMax Dev. Corp. v. Mattson, 943 P.2d 247, 255 (Utah Ct.
App. 1997).

¶38 Moreover, we do not agree with Reyes-Gutierrez’s
assertion that after the City’s motion for a mistrial was denied,
the prosecutor then devised a strategy to goad him into moving
for a mistrial. To the contrary, the City suggested calling defense
counsel as a witness before it was told that Reyes-Gutierrez was
not going to testify. Thus, the City’s expressed intent to call
defense counsel as a witness to testify about the video was not a
plan hatched in response to the denial of the City’s mistrial
motion. And even after the trial court denied the City’s mistrial
motion, the prosecutor did not immediately raise the issue.
Rather it was defense counsel who asked the court to address
whether it would allow the City to call her to testify,
preemptively announcing that if called she would move for a
mistrial. Given this sequence of events, we see no clear error in
the trial court’s determination that the prosecutor was working
“to address fast moving issues” rather than attempting to
provoke a mistrial.

¶39 Finally, Reyes-Gutierrez argues that the trial court’s
factual findings are not entitled to deference because they are
inconsistent with the actual facts as reflected in the trial
transcript. In particular, Reyes-Gutierrez argues that it is
irreconcilable to find that the prosecutor did not intend to
provoke a mistrial “when the City had actively stipulated to
defense counsel’s motion for a mistrial before such motion was
even made.” He insists that the City’s stipulation to a mistrial
before a motion was made “indicates the City foresaw [its]
decision would provoke [him] into moving for a mistrial.”

¶40 While it is true that the City stipulated to a mistrial before
Reyes-Gutierrez officially moved for one, by the time the City
noted its stipulation, the writing was on the wall. The parties
and the court had discussed the issue at some length, and
defense counsel unequivocally and repeatedly stated that if she

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were called as a witness to testify about the video, she would
move for a mistrial. The City then proposed that the prosecutor
be called to testify to avoid retrying the case, and defense
counsel stated that she “would object to that as well” as “wholly
inappropriate.” It was only then that the City indicated that it
would stipulate to a mistrial if a motion were made, and, even
after making that offer, the City continued to express willingness
to compromise by having the prosecutor testify in place of
defense counsel. The fact that the City anticipated a motion that
defense counsel had repeatedly promised does not undermine
our confidence in the trial court’s findings.

CONCLUSION

¶41 We conclude that the record supports the trial court’s
finding that the prosecutor did not intentionally provoke the
defense into seeking a mistrial. Accordingly, we uphold the trial
court’s order denying Reyes-Gutierrez’s motion to bar retrial
and affirm his conviction.

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