District Court, Provo Department The Honorable Michael D.
Lyon No. 141400422
D. Reyes and Karen A. Klucznik, Attorneys for Appellant
Douglas J. Thompson, Attorney for Appellee
Michele M. Christiansen Forster authored this Opinion, in
which Judges Kate Appleby and Jill M. Pohlman concurred.
CHRISTIANSEN FORSTER, JUDGE:
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.
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
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
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.
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.
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.
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 ...