The Appellate Group

State v. Barner

State v. Barner, 2020 UT App 68 (Hagen, J.)


The defendant stole a case of beer and hit the store clerk with his car in the parking lot as he left. A detective investigated the incident and wrote in a report that the store’s surveillance footage did not show that the defendant intentionally hit the clerk and the clerk was not injured. The State charged the defendant with aggravated burglary. At trial, the court excluded the report and the detective’s testimony under rule 701 of the Utah Rules of Evidence, reasoning that the report would be unhelpful to the jury. At trial, the clerk testified and admitted that it was possible the defendant did not purposely hit him. The jury also saw the surveillance footage of the incident. After close of the State’s evidence at trial, the district court denied the defendant’s motion for a directed verdict on the aggravated burglary charge, leaving to the jury to decide whether the evidence showed that the defendant knowingly or intentionally used force or fear of immediate force against the clerk when he committed the crime. The jury convicted him of the lesser included offense of robbery. The Utah Court of Appeals affirmed his robbery conviction, holding:

  • The district court did not abuse its discretion when it excluded the detective’s report and testimony under rule 701 of the Utah Rules of Evidence. While police reports are admissible to support a defendant’s case under the business records exception to the rule against hearsay—Utah R. Evid. 803(6)—police reports are still subject to other rules of evidence. The detective’s conclusion in the police report was based solely upon viewing the same surveillance footage that was shown to the jury. The detective did not witness the incident firsthand and his testimony would not have provided the jury with any new information.
  • Exclusion of the detective’s testimony and report did not violate the defendant’s constitutional rightto present a complete defense. The defendant presented his theory of the case to the jury through testimony of the clerk and the video itself. The evidence was not essential to the defendant’s defense. And because the exclusion of the evidence did not deprive the defendant of his constitutional right, the State was not required to show that exclusion of the evidence was harmless beyond a reasonable doubt—a heightened standard of review when a constitutional right has been violated.
  • The district court properly denied defendant’s motion for a directed verdict. The evidence was sufficient to establish that the defendant knowingly used force or fear of immediate force against the clerk. The clerk testified that he yelled to get the defendant’s attention, that he made eye contact with the defendant, and the defendant accelerated even though the clerk was near the vehicle. The jury could have found sufficient evidence to convict him of the aggravated charge.

Read the full court opinion