text:
    STATE of Utah, Appellee, v. Cole Montana BOYLE, Appellant.
    No. 20161037-CA
    Court of Appeals of Utah.
    Filed February 22, 2019
    Diana Pierson, Alexandra S. McCallum, and Robin K. Ljungberg, Attorneys for Appellant
    Sean D. Reyes, Salt Lake City, and Tera J. Peterson, Attorneys for Appellee
    Judge David N. Mortensen authored this Opinion, in which Judges Ryan M. Harris and Diana Hagen concurred.
    Opinion
   MORTENSEN, Judge:

¶1 A husband (Victim) and wife (Wife) were spending the evening buying and using drugs near a homeless shelter in Salt Lake City. Alone, Victim went looking for more drugs. When he came upon Cole Montana Boyle beating a woman, Victim intervened, and Boyle then turned on Victim, stabbing him four times-once in the arm, once on top of the head, once through the nose, and, most seriously, once in the neck, slashing the carotid artery. During the ensuing investigation, Wife was recorded on a police body camera stating that Boyle had been beating up a girl. Boyle objected to the admission of the recording on the grounds that Wife's statement was hearsay. The objection was overruled. A jury convicted Boyle of aggravated assault, and Boyle was sentenced to prison. Boyle appeals, arguing that he was prejudiced by the admission of hearsay evidence and that the trial court abused its discretion when sentencing him to prison. We affirm.

BACKGROUND

Stabbing Incident

¶2 One evening in early January 2016, Victim and Wife drove to a light rail station near a homeless shelter in downtown Salt Lake City to buy and use drugs. Victim purchased some crack cocaine from a dealer, and he and Wife smoked it together in their SUV. About thirty minutes later, Victim left the SUV to search the area for a heroin dealer.

¶3 Victim testified that after exiting his SUV, he saw Boyle, whom Victim did not know and had not seen before, "punching a girl and knocking her to the ground." Victim yelled out, "Stop, you don't do that to a girl." He stated that Boyle hit the woman in the face with his closed fist. When she fell to the ground, Boyle "got on top of her and continued to hit her." Victim testified that he "picked [Boyle] up off her and pushed him forward." Boyle "turned around, looked at [Victim], and kind of got in [Victim's] face a little bit and then walked off." As Victim was helping the woman, he saw Boyle quickly walking toward him and looking "[l]ike he wanted to fight." Victim recalled Boyle was holding "something shiny .... like a blade." Boyle started punching Victim in the face, and Victim threw punches back and grabbed Boyle's coat in an attempt to defend himself. Boyle said, "Stop, stop, please stop, cops are coming." As the two separated, Boyle lunged at Victim and stabbed him. Boyle then walked away. Victim was "really wobbly and wondering why [he] was so out of sorts." Then he noticed blood was "spraying out of [his] neck."

¶4 Wife testified that she heard Victim yell, "Hey, you don't treat women that way," about three or four minutes after Victim left the SUV. She looked up and saw Victim and Boyle pushing each other. Wife noticed a "girl" and "a lot of other people" nearby. Wife thought "everything was fine" when she saw Boyle walking away from Victim. As she was putting on her shoes so that she could go over "to see if everything was okay," Wife heard a "commotion" and looked up to see Victim and Boyle fighting. Wife then went to check on Victim at the site of the altercation.

¶5 Wife found Victim holding his neck and saying that Boyle had stabbed him. She yelled, "Call 911," but "everyone looked at [her] like [she] was crazy," so she went back to her SUV and drove it over to pick up Victim. She took him to a police officer stationed outside the homeless shelter and told the officer that Victim had been stabbed.

¶6 The officer activated his body camera on contact with Victim and Wife. He noticed Victim had "one of his hands up to the left side of his neck[,] and [he] could see there was a lot of blood." The officer put a pressure dressing on the wound and called for medical assistance. While waiting for the ambulance, Victim and Wife gave police a description of the suspect.

¶7 About a half an hour later, police officers located Boyle, who matched the description given by Victim and Wife. Boyle had injuries to his face and dried blood on his hands. Later that evening, Wife identified Boyle as the man who had attacked Victim. While being interviewed at the police station, Boyle denied having been in a fight or seeing a fight that evening. However, DNA testing later revealed Victim's blood on one of Boyle's socks.

¶8 Victim sustained four knife wounds during the fight: one to the top of his head, one through his nose, one in the right bicep, and one in his neck. A surgeon determined that the neck wound had damaged the carotid artery and required emergency surgery. Subsequently, Victim suffered six strokes and spent five to six weeks in the hospital recovering from his injuries. At the time of trial, Victim continued to suffer from numbness, lightheadedness, face drooping, and slurred speech.

¶9 Boyle was charged with attempted murder with a dangerous weapon or, in the alternative, aggravated assault with a deadly weapon.

Trial and Sentencing

¶10 At trial, in addition to presenting the testimony of Victim, Wife, two officers, a detective, a DNA analyst, and the emergency room physician, the State also played portions of the body camera recording of an officer's conversation with Wife and Victim. Boyle objected to the admission of the recording, arguing that (1) it contained hearsay statements from Wife and (2) it was unduly prejudicial because it carried "a lot of emotional weight." Specifically, Boyle objected to the playing of two recorded statements of Wife saying that Boyle "was beating up a girl" before he and Victim fought. The trial court overruled the objection, ruling that the recording (1) was being offered to explain the officer's actions and not for its truth and (2) was also admissible as an excited utterance. Additionally, the court gave a limiting instruction that provided, "Any statements made by [Victim and Wife] in this video are not being offered by the State for the truth of what they said but rather to show the jury why the officers did what they did when informed about or of what had happened."

¶11 Boyle did not present any evidence for his defense. Counsel argued, however, that Boyle was not guilty of attempted murder because he lacked the intent to kill Victim. Specifically, Boyle's counsel stated in closing:

There wasn't any sufficient evidence to find a specific intent to kill. However, there is plenty of evidence of an intent to wound and injure and that's exactly what happened in this case. ... [T]he evidence of injury applies better to the [aggravated] assault than to the attempted murder and I am confident that once you have deliberated, gone through these instructions, looked at the evidence, that you will find that my client is guilty of the alternative charge of aggravated assault and not attempted murder in this particular case.

The jury convicted Boyle of aggravated assault and determined that he used a dangerous weapon during the commission of that assault.

¶12 At sentencing, Boyle argued that jail and probation were appropriate in light of the sentencing guidelines, his remorse, and his rehabilitative needs. The State noted that although the criminal history matrix score suggested only probation for Boyle, Adult Probation and Parole (AP&P) recommended that the trial court depart from that guideline and impose a prison sentence. AP&P noted that Boyle's history of violent crimes beginning as a juvenile, his overall criminal history, his ongoing substance abuse issues, and his infliction of serious injury to Victim were of "grave concern" and indicated that Boyle posed a "grave danger to the safety of the community." The State also played several phone-call recordings from jail, over Boyle's objection, to show that Boyle was deceptive, lacking remorse, and disrespectful of Victim's plight.

¶13 The trial court sentenced Boyle to two-to-twenty years in prison. "[T]aking into consideration the injuries in this case [and Boyle's] prior record of assaultive behavior," the trial court concluded that Boyle was a "danger to the community" and it was too great a risk to put him "back out in the community." Boyle now appeals.

ISSUES AND STANDARDS OF REVIEW

¶14 The first issue is whether the trial court erred in admitting two of Wife's statements, as recorded by the police body camera, that Boyle was "beating up a girl" prior to the altercation because the statements were inadmissible hearsay. "When reviewing rulings on hearsay, we review legal questions regarding admissibility for correctness, questions of fact for clear error, and the final ruling on admissibility for abuse of discretion." State v. Garrido , 2013 UT App 245, ¶ 10, 314 P.3d 1014 (cleaned up). If the trial court erred in admitting Wife's recorded statements, Boyle will succeed on appeal only if he shows that he suffered prejudice because there was a "reasonable likelihood of a more favorable result" absent the statements. See State v. McNeil , 2013 UT App 134, ¶ 41, 302 P.3d 844 (cleaned up), aff'd , 2016 UT 3, 365 P.3d 699.

¶15 The second issue is whether the trial court erred by sentencing Boyle to prison instead of probation. "[W]e review a trial court's decision to deny probation under an abuse of discretion standard and will overturn a sentencing decision only if it is clear that the actions of the trial judge were so inherently unfair as to constitute an abuse of discretion." State v. Killpack , 2008 UT 49, ¶ 18, 191 P.3d 17 (cleaned up). "A court exceeds its discretion if it acts with inherent unfairness in imposing a sentence, imposes a clearly excessive sentence, or fails to consider all legally relevant factors." State v. Epling , 2011 UT App 229, ¶ 8, 262 P.3d 440.

ANALYSIS

I. Even if the Trial Court Erred in Admitting the Recording, Boyle Has Not Established Prejudice

¶16 For the purposes of this appeal, we assume, without deciding, that Wife's statements recorded on the body camera were inadmissible hearsay. But even if the recording was erroneously admitted, Boyle must still show prejudice to succeed on appeal. See State v. McNeil , 2013 UT App 134, ¶ 41, 302 P.3d 844, aff'd , 2016 UT 3, 365 P.3d 699. "Trial error requires reversal only if a review of the record persuades the appellate court that without the error there was a reasonable likelihood of 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 is undermined." Id . (cleaned up). Boyle "has not established prejudice under this standard," see id. , because (1) he asked the jury to return a guilty verdict and (2) other evidence in the case was sufficient, standing alone, to convict him.

A. Boyle's Counsel Explicitly Asked the Jury to Return a Guilty Verdict on the Aggravated Assault Count

¶17 Boyle would have been convicted even without the recording because his counsel asked the jury to return a guilty verdict on the aggravated assault charge. In his opening statement, counsel told the jury that there are a "number of facts ... that are just simply beyond change, that will not be contested in this case." He continued to tell the jury that there was "no question" and that it was "absolutely accurate" that Boyle and Victim were "involved in a fight in which [Victim] was stabbed." And in his closing, counsel explicitly stated, "I am confident that once you have deliberated ... [and] looked at the evidence, that you will find that my client is guilty of the alternative charge of aggravated assault and not attempted murder in this particular case." Counsel further conceded that although there was insufficient evidence of Boyle's "specific intent to kill," there was "plenty of evidence of an intent to wound and injure." We agree with Boyle's counsel on this point.

¶18 In his reply brief, however, Boyle argues that trial counsel was compelled to ask the jury to convict on the aggravated assault charge, essentially attempting to make lemonade out of a lemon-the lemon being the hearsay evidence admitted over his objection. Boyle argues:

Counsel made no concession that absent [Wife's] statement [recorded on the body camera], a guilty verdict was warranted. Under these circumstances, all that can be read into counsel's statements is that he was doing damage control in light of the trial court's ruling. ... This Court should place little, if any, weight on these statements in assessing prejudice.

¶19 Boyle would have us believe that the only reason his counsel asked the jury to return a guilty verdict on the aggravated assault charge is that Wife's recorded statements were so damaging that his counsel was forced to do "damage control." We find this argument unconvincing for two reasons. First, counsel had already acknowledged in his opening that Boyle was involved in the fight resulting in the stabbing of Victim. His statements at closing thus complete the arc of the trial strategy set in place at the opening. Second, in promoting the "damage control" argument, Boyle ignores the other evidence, which we identify below, arrayed against him. Indeed, as Boyle's counsel himself stated, "[T]here is plenty of evidence" of Boyle's "intent to wound and injure."

B. Any Error in Admitting the Putative Hearsay Evidence was Harmless in Light of Other Evidence

¶20 Whether an error is harmful depends upon several factors. "These include the importance of the witness's testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, ... and, of course, the overall strength of the prosecution's case." McNeil , 2013 UT App 134, ¶ 52, 302 P.3d 844 (cleaned up). In light of these factors, any error in admitting the two recorded statements was harmless in this case.

¶21 First, Wife's two statements on the recording that Boyle "was beating up a girl" were of little importance to the State's case. The cause of the fight between Boyle and Victim is irrelevant to establishing that the fight occurred and that Victim was assaulted with a deadly weapon. Indeed, Boyle's defense counsel conceded at trial that the "reason for the fight is not necessarily important" except insofar as it "shed[s] light on whether there was a specific intent to kill somebody or simply hurt somebody."

¶22 Second, Wife's recorded statements were also cumulative and corroborative of other evidence admitted without objection. Wife testified that she heard Victim say, "Hey, you don't treat women that way," when she was sitting in the SUV. Victim testified that he saw Boyle "punching a girl and knocking her to the ground." In the recording, Victim stated that Boyle had been beating up a woman, and a police officer repeatedly stated in the same recording that Victim had said Boyle had been beating up a girl. With the exception of Wife's two recorded statements, all of this testimony was admitted without objection and its admission is not assailed on appeal. Indeed, when asked if he objected to the officer's statements in the recording, Boyle's counsel explicitly stated, "I don't think there's anything objectionable to what the officer said." So even if Wife's recorded statements that Boyle was attacking a woman had not been played, the jury still heard several other recorded statements to the same effect.

¶23 Third, there was other significant evidence against Boyle. As noted above, Boyle's counsel admitted in his opening statement that Boyle had been in the fight in which Victim was stabbed. A subsequent DNA test showed that blood on Boyle's sock matched Victim's DNA. When Boyle was apprehended, he had dried blood on his hands, a fresh wound on his mouth, and blood inside his nose. And when police located Boyle, he matched the description given by Victim and Wife. Thus, even without Wife's recorded statements, there is not a reasonable likelihood of a different result at trial. The strength of the State's remaining evidence would have been more than sufficient to convict Boyle of aggravated assault.

¶24 For these reasons, we conclude that any error the court committed in admitting Wife's recorded statements was harmless.

II. The Trial Court Did Not Abuse Its Discretion in Sentencing Boyle to Prison Instead of Probation

¶25 "The sentencing decision of a trial court is reviewed for abuse of discretion." State v. Valdovinos , 2003 UT App 432, ¶ 14, 82 P.3d 1167. Specifically, the "decision whether to grant probation is within the complete discretion of the trial court." State v. Rhodes , 818 P.2d 1048, 1049 (Utah Ct. App. 1991). "In general, a trial court's sentencing decision will not be overturned unless it exceeds statutory or constitutional limits, the judge failed to consider all the legally relevant factors, or the actions of the judge were so inherently unfair as to constitute abuse of discretion." State v. Killpack , 2008 UT 49, ¶ 59, 191 P.3d 17 (cleaned up). "[A] defendant may demonstrate an abuse of discretion if he or she can show that no reasonable person would take the view adopted by the trial court." State v. Goodluck , 2013 UT App 263, ¶ 2, 315 P.3d 1051 (per curiam) (cleaned up).

¶26 Boyle argues on appeal that the trial court abused its discretion in sentencing him to prison. Specifically, Boyle asserts that the court failed to consider factors that favored probation. The record does not support his contention. During sentencing, the State acknowledged that Boyle's criminal history matrix scored him in the probation category. But AP&P nevertheless recommended prison, considering Boyle's criminal history, which included four previous assaults (three as a juvenile and one as an adult), his ongoing substance abuse issues, and the seriousness of Victim's injuries. Weighing these factors, AP&P concluded that Boyle posed a "grave danger to the safety of the community." The court also acknowledged that Boyle did not score high on the matrix. But taking into consideration Boyle's history of "assaultive behavior" and the seriousness of Victim's injuries, the trial court agreed with AP&P's recommendation and concluded that Boyle posed too great a risk to be put "back out in the community."

¶27 Boyle also argues that the trial court abused its discretion by basing its sentencing decision on "unreliable and irrelevant information" in the jail recordings. As a threshold matter, we note that the trial court appears to have based its sentencing decision primarily on Boyle's history of criminal behavior and the seriousness of Victim's injuries. The record gives no indication that the jail recordings played any material role in sentencing. Rather, the record shows that the court relied on AP&P's conclusion that Boyle posed a "grave danger to the safety of the community" when it sentenced him. Furthermore, Boyle does not challenge that he is speaking on the jail recordings, nor does he assert that the recordings are incomplete or inaccurate. Accordingly, Boyle's argument that the recordings are unreliable borders on frivolous. And with regard to relevance, the jail recordings indicate that Boyle (1) read books on how to be deceptive, (2) was using drugs while in custody, (3) regarded Victim as just a "crack head," (4) was a gang member, and (5) intended to retaliate against a witness. The recordings are relevant precisely because they directly challenge Boyle's assertion that he was "remorseful, oriented toward positive change, and amenable to probation and treatment." Thus, the jail recordings were both relevant and reliable, and the trial court did not abuse its discretion in considering them during sentencing.

¶28 Because the record supports the conclusion that Boyle was a danger to the community, we determine that the trial court acted well within its discretion and considered the relevant factors when it imposed the prison sentence.

CONCLUSION

¶29 Because Boyle was not prejudiced by the admission of Wife's recorded statements, we conclude that any error the trial court committed in that regard was harmless. We also conclude that the court did not abuse its discretion in sentencing Boyle to prison instead of probation.

¶30 Affirmed.

      "On appeal, we review the record facts in a light most favorable to the jury's verdict and recite the facts accordingly. We present conflicting evidence only as necessary to understand issues raised on appeal." State v. Holgate , 2000 UT 74, ¶ 2, 10 P.3d 346 (cleaned up).

      A court may consider a record of delinquency in sentencing. See State v. McClendon , 611 P.2d 728, 729 (Utah 1980) (stating that the inadmissibility of a record of delinquency "is not a bar to [its] consideration in the sentencing phase of a criminal case").

      "To establish that a district court abused its discretion by relying on irrelevant information, the defendant must show (1) evidence of reliance, such as an affirmative representation in the record that the judge actually relied on the specific information in reaching her decision, and (2) that the information she relied upon was irrelevant." State v. Moa , 2012 UT 28, ¶ 35, 282 P.3d 985. Even if the jail recordings were irrelevant, Boyle has not offered any evidence, apart from the fact that the court was "exposed to approximately 12 minutes of recordings ... during the sentencing hearing," that the trial court relied on the information in the recording in reaching its decision. And "an appellate court cannot presume there is evidence of reliance from a silent record or mere introduction of potentially irrelevant information." Id.

      Evidence that is inadmissible during the guilt phase of a trial may be admissible at sentencing. See State v. Howell , 707 P.2d 115, 117 (Utah 1985). "This includes the defendant's criminal history, conduct at trial, and other relevant behavior." State v. Lingmann , 2014 UT App 45, ¶ 39, 320 P.3d 1063. Indeed,
      [trial] courts have historically been afforded broad discretion when it comes to sentencing. The U.S. Supreme Court has stated ... [that] both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.
      State v. Perea , 2013 UT 68, ¶ 113, 322 P.3d 624 (cleaned up). The United States Supreme Court has further clarified that in "determining what sentence to impose .... a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come." United States v. Tucker , 404 U.S. 443, 446, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).


source: Caselaw Access Project

author: POHLMAN, Judge:

license: Public Domain

text:
    STATE of Utah, Appellant, v. WATSON PHARMACEUTICALS INC., Watson Laboratories Inc., and Watson Pharma Inc., Appellees.
    No. 20170545-CA
    Court of Appeals of Utah.
    Filed February 28, 2019
    Sean D. Reyes, Robert E. Steed, W. Daniel Miles III, Alison D. Hawthorne, Joseph W. Steele, and Kenneth D. Lougee, Salt Lake City, Attorneys for Appellant
    Richard A. Vazquez, Salt Lake City, James W. Matthews, and Katy E. Koski, Attorneys for Appellees
    Judge Jill M. Pohlman authored this Opinion, in which Judges David N. Mortensen and Diana Hagen concurred.
    Opinion
   POHLMAN, Judge:

¶1 After observing a trend of allegedly fraudulent pharmaceutical prices being submitted to the State Medicaid program, the State of Utah brought civil actions against a number of pharmaceutical companies for fraud and alleged violations of the Utah False Claims Act (the UFCA). Utah Code Ann. §§ 26-20-1 to -15 (LexisNexis 2013). Watson Pharmaceuticals Inc. and two of its subsidiaries, Watson Laboratories Inc. and Watson Pharma Inc. (collectively, the Watson Defendants), were among the named defendants. The district court dismissed the claims against the Watson Defendants because the State failed to plead its claims against each defendant separately and instead identified them collectively in the complaint as "Defendant Watson." We affirm.

BACKGROUND

¶2 Under Utah's Medicaid program, medical providers are reimbursed for drugs prescribed to Medicaid recipients. Reimbursement is set by state and federal rules, and the amount a medical provider receives is calculated by looking at, among other things, the Average Wholesale Price (AWP) reported by drug wholesalers or manufacturers. The Watson Defendants each allegedly reported inflated AWPs, resulting in the State over-reimbursing physicians and pharmacists for drugs prescribed for and dispensed to Utah Medicaid recipients. The over-reimbursement in turn allowed the Watson Defendants to market the "spread" between their inflated AWPs and the actual AWPs, thereby increasing sales by inducing doctors to buy their drugs.

¶3 The State found a widespread practice of inflated AWP reporting and brought civil actions against numerous pharmaceutical companies. In three separate actions against three different groups of defendants, the State alleged violations of the UFCA and claims for fraudulent misrepresentation. While each case followed a different procedural path, the complaints were virtually identical.

¶4 One of these companion cases found its way to the Utah Supreme Court, and the current case was stayed during the pendency of that appeal. See generally State v. Apotex Corp. , 2012 UT 36, 282 P.3d 66. In Apotex , the district court had dismissed the State's complaint with prejudice for failing to plead its claims with particularity under rule 9(c) of the Utah Rules of Civil Procedure. Id. ¶ 11 ; see also Utah R. Civ. P. 9(c) ("In alleging fraud ..., a party must state with particularity the circumstances constituting fraud ...."). The district court concluded that the State had "failed to identify each defendant's allegedly fraudulent misrepresentations and UFCA violations with particularity" and instead "offered only broad conjecture of alleged false or fraudulent statements that the Defendants made as a group." Apotex , 2012 UT 36, ¶ 12, 282 P.3d 66 (quotation simplified).

¶5 On appeal, the supreme court held that, while rule 9(c) applied to the State's UFCA and fraudulent misrepresentation claims, "a relaxed standard is appropriate where a plaintiff asserts a widespread fraudulent scheme that involves the submission of many false claims over a lengthy period." Id. ¶ 20. This relaxed standard provides that "if a plaintiff cannot allege the details of an actually submitted false claim, the plaintiff may nevertheless survive [ rule 9(c) ] by alleging particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted by each defendant." Id. ¶ 29 (quotation simplified). "[I]n the interest of justice," the court remanded the case to the district court to allow the State an opportunity to meet the new standard. Id. ¶¶ 31, 39.

¶6 The State here was similarly given the opportunity to replead its claims to satisfy Apotex . In its Third Amended Complaint (the Complaint), the State alleged that the defendants had each "made false publications" for the prescription drugs identified in Exhibit A to the Complaint. In that exhibit, the State identified hundreds of drugs, listing each by product name and National Drug Code (NDC). The State also identified the specific defendant associated with each drug, except for the drugs associated with the Watson Defendants. For those drugs, the State alleged that the Watson Defendants collectively "made false publications" for the drugs identified in Exhibit A as being jointly associated with the three entities.

¶7 The State also embedded in the Complaint charts purporting to show "representative examples" of alleged false claims. See id. ¶ 35 (listing "representative examples" of alleged false claims as an example of "reliable indicia that lead to a strong inference that false claims were actually submitted" (quotations simplified)). For each prescription drug listed in the charts, the State identified the drug by name and NDC, along with each drug's reported AWP, actual AWP, and the spread between the two. Again, the State provided separate charts for each defendant except for the Watson Defendants. The representative examples for the three Watson Defendants were combined without distinction in a single chart under the name "Defendant Watson."

¶8 Under rules 9(c) and 12(b)(6) of the Utah Rules of Civil Procedure, all of the named defendants, including the Watson Defendants, filed a joint motion to dismiss the Complaint, alleging that the State failed to satisfy the Apotex pleading standard. The district court ruled that the State pleaded its facts with sufficient particularity except as to the Watson Defendants, which the court recognized "is not a single defendant, but instead, is comprised of three distinct entities." The court noted that the State was "not required to identify the minutia related to each alleged bad act," but that Apotex required that each defendant must be "individually identified." It therefore dismissed the Complaint against the Watson Defendants with prejudice but allowed the case to proceed against the other defendants.

¶9 Three months later, the State sought leave under rule 15(a) of the Utah Rules of Civil Procedure to again amend its complaint. Among other things, the State sought to cure the defect of grouping the three Watson Defendants together by providing separate representative examples of fraudulent reporting for Watson Pharma Inc. and Watson Laboratories Inc. The district court, however, denied the State leave to amend. It characterized its prior ruling as a dismissal with prejudice and concluded that the motion to amend was therefore moot. Alternatively, the court found that, "[u]nder the traditional rules for considering a motion to amend," the motion was "untimely and unjustified."

¶10 After several more years of litigation with the remaining defendants, final judgment in the case was entered. The State now appeals the dismissal of its claims against the Watson Defendants.

ISSUES AND STANDARDS OF REVIEW

¶11 The State asserts that the district court incorrectly dismissed its claims against the Watson Defendants for failure to plead those claims with the particularity required by rule 9(c) of the Utah Rules of Civil Procedure. "A district court's grant of a motion to dismiss based upon the allegations in the plaintiff's complaint presents a question of law that we review for correctness." America West Bank Members, LC v. State , 2014 UT 49, ¶ 7, 342 P.3d 224 (quotation simplified); see also State v. Apotex Corp. , 2012 UT 36, ¶ 16, 282 P.3d 66. When reviewing such a dismissal, "we accept the plaintiff's description of facts alleged in the complaint to be true, but we need not accept extrinsic facts not pleaded nor need we accept legal conclusions in contradiction of the pleaded facts." America West , 2014 UT 49, ¶ 7, 342 P.3d 224 (quotation simplified).

¶12 The State also contends that the district court abused its discretion in dismissing the claims against the Watson Defendants with prejudice. A district court's decision to dismiss with prejudice is reviewed for an abuse of discretion. See Bonneville Tower Condo. Mgmt. Comm. v. Thompson Michie Assocs., Inc. , 728 P.2d 1017, 1020 (Utah 1986) (per curiam).

ANALYSIS

¶13 The State contends that dismissal of its claims against the Watson Defendants was improper because the Complaint satisfied the rule 9(c) pleading standard as articulated by the Utah Supreme Court in State v. Apotex Corp. , 2012 UT 36, 282 P.3d 66. It also contends that, even if the Complaint did not satisfy rule 9(c), the district court erred in dismissing its claims against the Watson Defendants with prejudice , thereby depriving the State of the opportunity to cure any deficiency. We hold that the district court correctly determined that the State's allegations against the Watson Defendants did not satisfy the rule 9(c) standard articulated by the Apotex court. We also hold that the district court did not abuse its discretion in dismissing the claims with prejudice.

I. Rule 9(c) Particularity Requirement

¶14 Rule 9(c) of the Utah Rules of Civil Procedure requires that fraud be pleaded "with particularity." In Apotex , the supreme court relaxed this standard with respect to the UFCA and related fraud claims like those here, but held that a plaintiff still must allege "particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted by each defendant." Apotex , 2012 UT 36, ¶¶ 20, 29, 282 P.3d 66 (quotation simplified). In affording the State an opportunity to replead its claims to meet the new standard, the court specifically instructed: "[T]he State must provide reliable indicia that would lead to a strong inference that each Defendant actually made false claims and fraudulent misrepresentations. Whatever the indicia-representative examples, statistical evidence, criminal investigations, etc.-the State must particularize its claims with respect to each Defendant." Id. ¶ 39 (emphasis in original).

¶15 On appeal, the State contends that the Complaint satisfied the pleading standards of rule 9(c) and Apotex , and it takes issue with the district court's conclusion that the State failed to individually identify representative examples for each of the Watson Defendants. While the State must concede that it collectively accuses the Watson Defendants of fraud, it contends that each Watson Defendant was "specifically identified" in the Complaint because the NDC numbers in the embedded chart and Exhibit A contain a "labeler code" unique to each of the three entities. Thus, according to the State, the purpose of rule 9(c) was satisfied because the Watson Defendants were "aware of the allegations against each [entity] specifically" based on the NDC numbers and "[f]urther detail was unnecessary."

¶16 We are not persuaded for several reasons. First, while the State contends that each of the three Watson Defendants is specifically identified in the Complaint by its NDC number, it has not demonstrated that to be true. The State did not provide this court with the Watson Defendants' labeler codes, nor did it provide a way for us to test its unpleaded assertion that the NDC numbers identified in the Complaint belong to the Watson Defendants. The State suggested for the first time in oral argument that this court could consult the "FDA records" to confirm which identifier codes relate to which defendants, but the State has not identified which records to consult or, more importantly, argued that it would be appropriate for us to do so.

¶17 Further, based on a comparison of the representative examples in the State's proposed Fourth Amended Complaint and the Third Amended Complaint, it appears that the NDC numbers identified collectively under "Defendant Watson" do not correspond to the named Watson Defendants. For example, three different labeler codes within the NDC numbers are listed under "Defendant Watson" in the Third Amended Complaint. In its proposed Fourth Amended Complaint, the State links two of those numbers to Watson subsidiaries not named in the Third Amended Complaint and not parties to this appeal. Thus, apart from the State's failure to prove its assertion, we question whether the Third Amended Complaint did in fact separately identify claims against the three named Watson Defendants.

¶18 Second, even assuming the relevant NDC numbers uniquely correspond to each named Watson Defendant, that assertion is absent from the pleading, and the State did not otherwise advise the district court that the individual Watson Defendants could be separately identified by the labeler codes in the NDC numbers. In Apotex , the supreme court specifically instructed the State to "provide an adequate basis for a court to infer that each defendant submitted false claims or made fraudulent misrepresentations as part of a fraudulent scheme." 2012 UT 36, ¶ 35, 282 P.3d 66 (emphases added); see also America West Bank Members, LC v. State , 2014 UT 49, ¶ 7, 342 P.3d 224 (noting that a court "need not accept extrinsic facts not pleaded" (quotation simplified)). Thus, it is not enough for the State to simply claim that the Watson Defendants were "aware of the allegations against each [entity] specifically." Rather, the district court was tasked with discerning whether the State had particularized its claims with respect to each defendant. And we can hardly fault the district court for not recognizing this alleged particularity when the State pleaded in code and did not give the district court the key.

¶19 Finally, even if we were inclined to excuse the State's failure to alert the district court to the secret for unlocking the substance of the Complaint, the State's fraud-based allegations against the Watson Defendants were still pleaded in the collective. The State expressly alleged that the Watson Defendants, collectively, were responsible for reporting fraudulent AWP prices related to all of the drugs listed in the "Defendant Watson" chart. In other words, even if each drug could be linked to a particular Watson Defendant based on the drug's NDC number, the State still alleged collective responsibility for the alleged fraudulent reporting relating to those drugs. And while the State's amended pleading certainly narrowed the association in comparison to what the State had alleged pre- Apotex , insofar as it related to the Watson Defendants, the State continued to rely on the "guilt-by-association" theory renounced by the Apotex court. See Apotex , 2012 UT 36, ¶ 28, 282 P.3d 66. There, the court repeatedly emphasized the importance of particularizing the claims "with respect to each Defendant," id. ¶¶ 29, 35, 39, explaining that alleging guilt by association "provides no particularity supporting claims of fraud and the submission of false claims by any given defendant," id. ¶ 36. So too here.

¶20 In reaching our conclusion, we recognize that the State's fraud-based claims were pleaded in the Complaint with much more specificity than they had been previously. And the district court recognized as much. With regard to the other defendants named in the Complaint, the court denied their motion to dismiss, concluding that the State's allegations of representative examples of fraud, "set forth in chart format identifying particular drugs manufactured by specific Defendants," were sufficient to satisfy rule 9(c) and Apotex . Yet the district court declined to excuse a lack of particularity among the Watson Defendants simply because they are related entities. Given the clear instructions articulated by the supreme court in Apotex , see id. ¶ 39, coupled with well-established principles regarding corporate separateness, we discern no error in that approach, see Institutional Laundry, Inc. v. Utah State Tax Comm'n , 706 P.2d 1066, 1067 (Utah 1985) (per curiam) ("A corporation, be it parent or subsidiary, has its own legal identity and existence. Common ownership or control does not automatically destroy that separate identity.").

¶21 All in all, the State has not convinced us that the NDC labeler codes in the Complaint adequately identify the Watson Defendants. And even if true in theory, the State never informed the district court of the significance of the labeler codes. Instead of pleading with particularity, the State continued to plead guilt by association. The State has therefore not met its pleading burden as to the Watson Defendants under rule 9(c) and Apotex , and the district court correctly dismissed the claims against them.

II. The Dismissal with Prejudice

¶22 Alternatively, the State contends that even if the district court did not err in dismissing its claims against the Watson Defendants, it abused its discretion in dismissing those claims with prejudice. It maintains that dismissal with prejudice was a harsh remedy that prevented the State from presenting its case on the merits. Specifically, it asserts that it was harmed because dismissal with prejudice denied it "the opportunity to amend its Complaint." Had dismissal been without prejudice, and amendment allowed, the State asserts that "the real controversy" could have been decided. (Quotation simplified.)

¶23 Generally, "a failure to plead [a] claim at an adequate level of detail" should result in dismissal "without prejudice." America West Bank Members, LC v. State , 2014 UT 49, ¶ 37, 342 P.3d 224 ; see also Alvarez v. Galetka , 933 P.2d 987, 991 (Utah 1997) ("Amendment should be refused only if it appears to a certainty that plaintiff cannot state a claim." (quotation simplified)). But "[a]t some point, the failure to plead a claim at a sufficient level of detail" can warrant dismissal with prejudice, such as when "the plaintiff has had multiple opportunities to amend and has continually failed to state a claim." America West , 2014 UT 49, ¶ 41 n.1, 342 P.3d 224 ; see also 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2004) (noting that a "court has considerable leeway ... in deciding when a complaint is formally insufficient and whether to permit leave to replead").

¶24 Here, the State had been given multiple opportunities-three-to amend its complaint and "continually failed to state a claim." See America West , 2014 UT 49, ¶ 41 n.1, 342 P.3d 224. And after Apotex , the State had specific instructions from the supreme court on how to remedy its pleadings and satisfy rule 9(c). State v. Apotex Corp. , 2012 UT 36, ¶ 39, 282 P.3d 66 ; see also supra Part I. In opposing the motion to dismiss the State never suggested that it should be given yet another opportunity to replead in the event the Complaint was still insufficient. Neither did it argue that such an opportunity would be warranted in this case.

¶25 Even on appeal, the State merely asserts that "the trial court committed an abuse of discretion" because the State "demonstrated it could easily cure the court's concerns." But as the district court noted in its order denying leave to amend, the State had "already been granted leave to file three prior amended complaints" and "had the opportunity to identify the correct Defendants at a much earlier date." And even with a detailed roadmap from the supreme court in hand, the State still failed to state a claim with the requisite particularity against each of the Watson Defendants. Thus, while focusing on the general rule, the State neglects the discretion afforded to the district court to dismiss with prejudice under the circumstances of this case. We therefore discern no abuse of discretion in the district court's dismissal with prejudice of the claims against the Watson Defendants.

CONCLUSION

¶26 We conclude that the State did not meet rule 9(c) 's pleading standard and the district court correctly dismissed the State's claims against the Watson Defendants. We also conclude that the district court did not abuse its discretion in dismissing those claims with prejudice. Accordingly, we affirm.

      Two of the Watson Defendants have since changed their names-Watson Pharma Inc. is now known as Actavis Pharma Inc. and Watson Pharmaceuticals Inc. is now known as Allergan Finance LLC. We refer to them as they were named below.

      "On appeal from a motion to dismiss, we must accept the factual allegations in the complaint as true and view all reasonable inferences from them in the light most favorable to the plaintiff." Pang v. International Document Services , 2015 UT 63, ¶ 3, 356 P.3d 1190 (footnote omitted). We recite the facts accordingly.

      Rule 9 of the Utah Rules of Civil Procedure was amended in 2016 and "language previously appearing under rule 9(b) now appears under rule 9(c)." Armer Tex. Trust v. Brazell , 2017 UT App 35, ¶ 1 n.2, 397 P.3d 604. The parties' briefing and the supreme court's opinion in State v. Apotex Corp. , 2012 UT 36, 282 P.3d 66, refer to rule 9(b), but, for the convenience of the reader, we refer to rule 9(c) throughout this opinion.

      The State had twice amended its complaint before Apotex was decided: once as a matter of course pursuant to rule 15(a) of the Utah Rules of Civil Procedure, and once by order of the court pursuant to the defendants' stipulation. After Apotex , the court granted the State permission to file its third amendment after receiving no opposition from the defendants.

      The district court did not expressly state whether it dismissed the claims against the Watson Defendants with or without prejudice, and the issue of whether the dismissal should be with or without prejudice was not raised in briefing or at oral argument before the district court. The sole reference to the issue is found in the caption of the defendants' reply memorandum where they added "with prejudice" to the title of their motion to dismiss. It was only after the State moved for leave to amend its complaint-and asserted that the dismissal was with prejudice-that the court labeled it as such.

      The State did not provide representative samples attributable exclusively to the third Watson Defendant-Watson Pharmaceuticals Inc. Instead, in its revised Exhibit A, the State identified Watson Pharmaceuticals Inc. as the parent company to the named subsidiaries. The State also made allegations against and provided representative samples for additional subsidiaries of Watson Pharmaceuticals Inc. not named in earlier versions of its complaint.

      The State maintained at oral argument that it had no opportunity to inform the district court about the significance of the NDC numbers. Not only could the State have drafted such detail into the Complaint, but if the State thought that the district court's decision resulted from a failure to understand the significance of the NDC numbers, the State could have asked the district court to reconsider on that basis. See Osguthorpe v. Wolf Mountain Resorts, LC , 2010 UT 29, ¶ 15, 232 P.3d 999 (noting that a court "remains free to revisit its rulings" while the case is ongoing); see also True v. Utah Dep't of Transp. , 2018 UT App 86, ¶ 39, 427 P.3d 338 (explaining that rule 54(b) of the Utah Rules of Civil Procedure provides a "procedural mechanism" for parties to ask the district court to revisit issues before a final judgment).

      The State in fact filed a motion for leave to amend in the district court, which the district court denied. Although the State's brief challenges the basis for that denial, it does not appeal from the decision. The State's notice of appeal designated only the district court's order dismissing its claims against the Watson Defendants as the decision appealed from-it did not list the court's denial of its motion for leave to amend. Utah R. App. P. 3(d) ("The notice of appeal shall ... designate the judgment or order, or part thereof, appealed from ...."). Also, during oral argument, the State twice disclaimed any intention of appealing the court's order denying amendment. Thus, we do not consider the merits of that order.

      We are skeptical that even the Fourth Amended Complaint remedied all the district court's concerns. See supra ¶ 9 & n.6.


author: CHRISTIANSEN FORSTER, Judge:

text:
    STATE of Utah, Appellant, v. Roberto SERRANO, Appellee.
    No. 20170673-CA
    Court of Appeals of Utah.
    Filed March 7, 2019
    Sean D. Reyes and Karen A. Klucznik, Salt Lake City, Attorneys for Appellant
    Douglas J. Thompson, Attorney for Appellee
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Kate Appleby and Jill M. Pohlman concurred.
    Opinion
   CHRISTIANSEN FORSTER, Judge:

¶1 A jury convicted Defendant Roberto Serrano of ten criminal charges, including aggravated sexual abuse of a child, rape of a child, and sodomy upon a child. After returning its verdict, the jury informed the parties and the trial court that a bailiff had provided it with an audio recording of a witness's trial testimony to review during its deliberations. Arguing that the jury's access to that testimony prejudiced him, Defendant requested a new trial. The district court granted that request and the State appeals. We affirm.

BACKGROUND

¶2 Following allegations of sexual abuse, an investigator interviewed two alleged child victims at the Children's Justice Center (CJC Interviews). In the CJC Interviews, each child described incidents of abuse involving Defendant. Based upon these allegations, the State charged Defendant in a multi-count information.

¶3 At trial, as part of its case-in-chief, the State played the CJC Interviews for the jury. The children also testified at trial. Defendant's strategy at trial included arguing that the children had fabricated the allegations. In support of this theory, Defendant drew the jury's attention to the differences and inconsistencies between the children's statements in the CJC Interviews and their testimony at trial. Defense counsel noted that the children testified at trial about new allegations not previously described in the CJC Interviews. Defense counsel also called an expert who testified that children's memories "are not like a tape recorder" and the process of reconstructing memories "can be affected by a number of different factors that can influence the quality of recollection." Defense counsel highlighted one child's initial "strong denial that there was anything inappropriate occurring ... at her home." Another defense expert testified about the physical injuries one would expect to see under the circumstances alleged. Among other things, this expert concluded that the likelihood that one child had experienced full vaginal intercourse as she testified at trial was "probably just not on the table."

¶4 During its deliberations the jury received, as part of the trial exhibits, the video recordings of the CJC Interviews. After several hours of deliberations, without the knowledge of the parties or the trial court judge, the jury asked the bailiff for a transcript of the trial testimony of one of the children. The bailiff explained to the jury that a transcript was not available. The jury again asked the bailiff for a transcript and, without the knowledge of the parties or the judge, the bailiff provided the jury with an audio recording of one child's trial testimony. Soon after receiving that recording, the jury found Defendant guilty on all ten charges.

¶5 The trial court excused the jury after it had returned a verdict and completed its charge, though all of the jury members remained in the courtroom to speak with the parties. The jurors informed the parties and the trial court that they had received an audio recording of one child's trial testimony. Defendant subsequently filed a motion for a new trial arguing that the jury's access to an audio recording of trial testimony was prejudicial extraneous evidence that should not have been provided to the jury during its deliberations.

¶6 The district court held two evidentiary hearings on Defendant's motion for a new trial. At the second hearing, the bailiff confirmed that he had provided the jury an audio recording of one child's trial testimony. Some of the jurors also testified that, during their deliberations, the jury had received and listened to the audio recording of the child's trial testimony. Defendant argued that the jury's unsupervised access to a recording of trial testimony unduly emphasized that testimony. He further argued that it undermined his trial strategy and deprived him of his right to a fair trial.

¶7 The district court granted Defendant's motion for a new trial. The district court determined that it was error for the bailiff to provide the jury with an audio recording of a witness's trial testimony without following proper procedures. See Utah R. Civ. P. 47(o) ("After the jury have retired for deliberation, if there is a disagreement among them as to any part of the testimony ... they may require the officer to conduct them into court. Upon their being brought into the court the information required must be given in the presence of, or after notice to, the parties or counsel."). The district court further determined that the jury's access to the recording of the trial testimony violated rule 17 of the Utah Rules of Criminal Procedure. See Utah R. Crim. P. 17(l ) (2018) (stating that, when retiring to deliberate, "the jury may take with them the instructions of the court and all exhibits which have been received as evidence, except exhibits that should not, in the opinion of the court, be in the possession of the jury, such as exhibits of unusual size, weapons[,] or contraband"); see also State v. Cruz , 2016 UT App 234, ¶ 39, 387 P.3d 618 (explaining that "under no circumstances shall the jury have unfettered access to audio- or video-recorded statements in the jury room during deliberations" (quotation simplified) ). These rule violations, the district court concluded, deprived Defendant of his right to a fair trial. The State appeals the district court's decision.

ISSUE AND STANDARDS OF REVIEW

¶8 The State argues that the district court erroneously granted Defendant's motion for a new trial. We review a district court's decision to grant a motion for a new trial for an abuse of discretion. State v. Bossert , 2015 UT App 275, ¶ 13, 362 P.3d 1258. "We assume that the [district] court exercised proper discretion unless the record clearly shows the contrary." State v. James , 819 P.2d 781, 793 (Utah 1991). We review the court's factual findings underlying its decision to grant a new trial for clear error, Bossert , 2015 UT App 275, ¶ 13, 362 P.3d 1258, and "we review the legal standards applied by the district court ... for correctness," State v. Allen , 2005 UT 11, ¶ 50, 108 P.3d 730 (quotation simplified).

ANALYSIS

¶9 The district court determined that the jury's improper access to a witness's trial testimony during its deliberations affected Defendant's right to a fair trial. Accordingly, the district court granted Defendant's motion for a new trial. On appeal, the parties do not dispute the district court's determination of error and impropriety. That is, both parties agree that the bailiff should not have provided the jury with an audio recording of a witness's trial testimony without the permission of the trial court judge or in a way not permitted by rule.

¶10 The State argues, however, that the district court erred in ultimately concluding that the jury's unrestricted access to a witness's trial testimony was prejudicial to Defendant. Specifically, the State asserts that "the contact between the bailiff and the jury concerning the [child's] trial testimony did not create a presumption of prejudice. Thus, the [district] court erroneously presumed prejudice." We agree with the State that the contact between the jury and the bailiff here did not warrant application of a rebuttable presumption of prejudice. We nevertheless conclude that the district court did not exceed its discretion when it granted Defendant's motion for a new trial.

¶11 The State advances two challenges to the district court's decision. First, the State argues that the district court improperly construed the jury-bailiff contact as improper contact between the jury and court personnel, necessitating a presumed prejudice standard. Second, the State argues that the district court erred in concluding that the bailiff's provision of testimonial evidence to the jury prejudiced Defendant. We address each argument in turn.

I. The Inappropriate-Contact Analysis

¶12 The constitutions of the United States and the state of Utah guarantee a criminal defendant the right to an impartial jury. U.S. Const. amend. VI ; Utah Const. art. I, § 12. Consistent with this right, jury verdicts must be " 'above suspicion' as to whether any juror might have been influenced by any inappropriate contact." State v. Soto , 2018 UT App 147, ¶ 10, 427 P.3d 1286 (quoting State v. Anderson , 65 Utah 415, 237 P. 941, 944 (1925) ), cert. granted , 432 P.3d 1231 (Utah 2018) ; accord State v. Crank , 105 Utah 332, 142 P.2d 178, 194 (1943) (observing that "the verdict of the jury, like Caesar's wife, must be above suspicion "). Consequently, our supreme court has held that "a rebuttable presumption of prejudice arises from any unauthorized contact during a trial between witnesses, attorneys[,] or court personnel and jurors which goes beyond a mere incidental, unintended, and brief contact." State v. Pike , 712 P.2d 277, 280 (Utah 1985). If applicable, this rebuttable presumption of prejudice shifts the burden to the State and requires that the prosecution "prove that the unauthorized contact did not influence the [jury]." State v. Allen , 2005 UT 11, ¶ 51, 108 P.3d 730.

¶13 Here, without the knowledge of the parties or the judge and during its deliberations, the jury asked the bailiff to provide a transcript of a witness's trial testimony. The bailiff responded to the request by providing the jury with an audio recording of that testimony without relaying the request to the trial court and without the knowledge of the parties. The State argues, and we agree, that the exchange in this case-the contact with the bailiff and the jury's request for evidence-did not qualify as "inappropriate contact" justifying a presumption of prejudice. See Pike , 712 P.2d at 280. The particular jury-bailiff contact at issue here is contemplated by our rules.

¶14 To be sure, the officer in charge of the jury in our trial courts-the bailiff in the case at hand-plays a unique role in jury trials. When a case is submitted to the jury, for example, the officer is charged with shielding the jury from "any communication to be made to them." Utah R. Crim. P. 17(l ) (2018). Indeed, our rules prohibit the officer from "speak[ing] to the jury except to ask them if they have agreed upon their verdict." Id. But because "the bailiff is assigned to minister to the jurors' needs and to be the contact person," we expect "contacts beyond mere civilities between jurors and a bailiff." See State v. Jonas , 793 P.2d 902, 909 (Utah Ct. App. 1990). While deliberating, the jury may ask the bailiff-and only the bailiff-to pass along its request for evidence or information on points of law regarding the case. Utah R. Crim. P. 17(m) ("[I]f [the jury] desire[s] to be informed on any point of law arising in the cause, they shall inform the officer in charge of them, who shall communicate such request to the court."); Utah R. Civ. P. 47(o) ("[I]f there is a disagreement among [the jurors] as to any part of the testimony, or if they desire to be informed on any point of law arising in the cause, they may require the officer to conduct them into court.").

¶15 Under the circumstances here, the jury's contact with the bailiff was authorized by our procedural rules. The jury twice asked the bailiff for a transcript of a witness's trial testimony. Although the jury's contact with the bailiff was not necessarily improper or prejudicial, the bailiff should have relayed the jury's request to the trial court. See Utah R. Crim. P. 47(o). The court-after discussion with counsel and deeming it appropriate-could then have brought the jury into court where the testimony could have been replayed, in full, "in the presence of, or after notice to, the parties or counsel."Id. The bailiff's failure to relay the jury's request to the court does not render the jury's contact with the bailiff unauthorized. As a result, the rebuttable presumption of prejudice applicable in situations involving inappropriate contact does not apply here and the district court erred in concluding otherwise. The burden therefore should have remained on Defendant to affirmatively establish that his right to a fair trial had been prejudiced by the jury's receipt of recorded testimony rather than having that burden shifted to the State to disprove prejudice. We now consider whether, despite the trial court improperly shifting the burden, the district court nevertheless properly determined that Defendant had affirmatively established prejudice.

II. Prejudice

¶16 Because the burden-shifting associated with the rebuttable presumption of prejudice was not warranted here, Defendant retained the burden to establish prejudice. That is, Defendant was required to demonstrate that the information the bailiff provided to the jury during its deliberations deprived him of his right to a fair trial. See Utah R. Crim. P. 24(a) ; see also State v. Harmon , 956 P.2d 262, 268 (Utah 1998) ("If the error is substantial and prejudicial to the extent that there is a reasonable probability that it affected the reliability of the trial outcome, then a new trial is required.").

¶17 As the State observes, to merit a new trial "Defendant had to demonstrate ... that 'without the [bailiff's] error there was a reasonable probability of a more favorable result for the defendant.' " (Quoting State v. Rodriguez , 2012 UT App 81, ¶ 9, 274 P.3d 1012.) The State presents two arguments in support of its claim that the district court erred in concluding Defendant was prejudiced. The State first argues that "[f]airness to the jury's truth-seeking process dictated that the jury should have equal access to [the child's] trial testimony upon request." In its second argument, the State contends that "the jury did not ponder [the child's] trial testimony long before reaching its verdict" and therefore the jury's access to that trial testimony could not have influenced its verdict. We are not persuaded that either of these assertions undermines the district court's decision to grant Defendant a new trial.

¶18 Because the jury had unfettered access to the recordings of the CJC Interviews, the State argues that "the trial court was not bound-as the [district] court believed it was-by rules and case law restricting the jury's access to an audio recording of [the child's] trial testimony." This argument is perplexing. The State argues, in essence, that because the jury had access to video recordings of testimonial evidence (i.e., the CJC Interviews), the "truth-seeking process ... dictated that the jury also have access to [the child's] trial testimony," upon request. (Emphasis added.) The State's argument misses the mark. The jury's access to the CJC Interview recording during its deliberations does not render that witness's trial testimony fair game.

¶19 The State acknowledges that, had the trial court allowed the jury to rehear trial testimony, it must nonetheless "ensure 'that [such testimony] is not so selected, nor used in such a manner, that there is likelihood of it being given undue weight or emphasis by the jury which would confer an unfair advantage on either party.' " (Quoting State v. Hines , 6 Utah 2d 126, 307 P.2d 887, 889 (1957).) As we have previously noted, the recorded statement of a witness " 'is the functional equivalent of a live witness, and can be particularly persuasive.' " State v. Cruz , 2016 UT App 234, ¶ 39, 387 P.3d 618 (quoting State v. A.R. , 213 N.J. 542, 65 A.3d 818, 829 (2013) ). For this reason, the jury should not have unfettered access to recordings of testimonial evidence during deliberations, but the court-after discussion with counsel, deeming it wise, and pursuant to the rule-may replay the testimony "in open court" allowing "the required record of the replay to be made." Id. (quotation simplified).

¶20 Had the trial court here considered the jury's request for evidence and allowed the jury to hear the recording of the witness's testimony, that evidence would have been given to the jury in court and in the presence of Defendant. See Utah R. Civ. P. 47(o). This process would have allowed the court to approve and control the jury's access to the testimony, it would have allowed a record to be made of the replay, and the court could have limited the jury's selective consideration of that testimony through appropriate instruction. We are not persuaded that the trial court therefore should have provided the jury unfettered access to the witness's trial testimony because the jury had access to the recordings of the witness's CJC Interviews and could watch and re-watch those recordings at will. In other words, the jury's access to certain testimonial evidence during deliberations does not open the door as a matter of course to its access to other testimonial evidence. See Cruz , 2016 UT App 234, ¶ 36, 387 P.3d 618 (observing that "the law does not permit depositions or witnesses to go to the jury room. Why should a witness be permitted to go there in the form of [recorded] testimony?" (quotation simplified) ).

¶21 Defendant's defense theory of fabrication relied on multiple pieces of evidence. Certainly defense counsel drew the jury's attention to inconsistencies between the children's testimony at trial and their statements in the CJC Interviews. But this information formed only part of the picture. Defendant presented the testimony of two experts who suggested that the witnesses' memories and lack of physical injuries could also support fabrication. The defense highlighted one witness's initial denial of any inappropriate behavior at home, subsequent education about sexual abuse, and her later accusation of sexual abuse. By inappropriately receiving unfettered access to only one piece out of a whole range of testimonial evidence presented, that recorded trial testimony was given undue emphasis.

¶22 The State's second argument focuses primarily on the district court's substantive conclusion that prejudice prevented Defendant from receiving a fair trial. Specifically, the State asserts that the jury's relatively short time with the audio recording meant that "there is little likelihood that the jury would have reached a different result had the jury heard all of [the child's] testimony in open court." The State does not explain, with reasoned analysis and citation to authority, how the brevity of a jury's review of evidence cannot influence its verdict. See Utah R. App. P. 24(a)(8). The record does not reflect what part of the recording the jury reviewed, but it suggests that the jury was focused on certain trial testimony and persisted in its requests to obtain it. That testimony was not cumulative of other evidence and it did not support Defendant's defense theory. It included, for example, allegations of sodomy that were not discussed in the CJC Interviews. Additionally, as the district court explained, "the jury may have been persuaded by [the witness's] maturity" and thus could have placed greater weight in the later statement-the trial testimony-of the witness.

¶23 The jury's free access to the witness's recorded trial testimony, even if for only a short period, could have influenced the jury's decision. Considering Defendant's motion for a new trial, the district court properly concluded that the circumstances established prejudice. Although the district court improperly shifted the burden to the State, it nevertheless determined that the bailiff's provision of testimony to the jury affirmatively and substantially affected Defendant's right to a fair trial. Consequently, we are not persuaded that the district court exceeded its discretion when it granted Defendant's motion for a new trial.

CONCLUSION

¶24 The presumption of prejudice standard applicable to inappropriate contact between a jury and court participants or court personnel does not apply under the circumstances presented here. The district court therefore erred in applying the rebuttable-presumption-of-prejudice standard. While the district court improperly shifted the burden to the State to rebut the presumption of prejudice, it nevertheless properly concluded that the circumstances affirmatively established that Defendant was deprived of his right to a fair trial. The district court therefore did not exceed its discretion when it granted Defendant's motion for a new trial. We affirm.

      The district court found that "[t]he parties stipulated to allowing the DVD of the CJC interview to be provided to the jury during its deliberations." On appeal, the parties dispute the existence of such a stipulation. Neither party disputes, however, that the CJC Interview recordings went back with the jury as part of the trial exhibits.

      The officer in charge of the jury here served the dual role of law clerk for the trial judge and bailiff. Following Defendant's post-trial motion for a new trial based upon the bailiff's actions, the trial judge recused from the case to avoid a potential conflict of interest. We therefore refer to the judge presiding over the trial as the "trial court," and we refer to the judge presiding over the post-trial motions as the "district court."

      The Utah Rules of Civil Procedure also govern criminal proceedings "where there is no other applicable statute or rule" and provided that the civil rule "so applied does not conflict with any statutory or constitutional requirement." Utah R. Civ. P. 81(e).

      The parties' primary dispute concerns the provision of recorded trial testimony to the jury during its deliberations. The parties do not dispute that the recorded CJC Interviews went back with the jury during its deliberations. As a general rule, we do not approve of providing the jury with recorded testimony, in any form, for it to review during its deliberations though we recognize that it may seem important or perhaps even necessary to a particular legal theory. See State v. Cruz , 2016 UT App 234, ¶¶ 38-39, 387 P.3d 618. " 'The law does not permit depositions or witnesses to go to the jury room. Why should a witness be permitted to go there in the form of [recorded] testimony?' " Id. ¶ 36 (quoting State v. Solomon , 96 Utah 500, 87 P.2d 807, 811 (1939) ). But given that the parties here did not and do not challenge the provision of the recorded CJC Interviews to the jury during its deliberations, we do not address this question further.

      Under the circumstances here, the district court improperly shifted the burden of proof and persuasion to the State to rebut the presumption of prejudice resulting from the inappropriate contact. See supra ¶¶ 12-15. But the district court did not simply conclude that the State failed to carry this burden. While the court applied the burden to show prejudice to the wrong party, the district court nevertheless considered the circumstances and concluded that the error-providing recorded trial testimony to the jury-resulted in "a substantial adverse effect on Defendant's rights" to a fair trial. Because the district court concluded that the error was substantial and prejudicial, we affirm its ultimate conclusion despite its burden-shifting error.