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State v. Serrano

Court of Appeals of Utah

March 7, 2019

State of Utah, Appellant,
v.
Roberto Serrano, Appellee.

          Fourth District Court, Provo Department The Honorable Michael D. Lyon No. 141400422

          Sean D. Reyes and Karen A. Klucznik, 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.

          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.[1] After several hours of deliberations, without the knowledge of the parties or the trial court judge, the jury asked the bailiff[2] 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.").[3] 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 ...


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