The Appellate Group

State v. Bermejo

State v. Bermejo, 2020 UT App 142 (Appleby, J.)


A boy was shot in a drive-by shooting. The State charged the defendant as a party to the shooting. The jury convicted the defendant. The Utah Court of Appeals affirmed, holding:

  • The defendant could not show how he was harmed by the admission of potentially inadmissible gang evidence over and above the gang evidence that was properly before the jury.
  • The defendant could not show how the admission of evidence of his incarceration after the shooting harmed his case. 
  • The defendant’s trial counsel could have reasonably concluded that objecting on hearsay grounds to the State’s expert’s testimony on the recent history of gang violence in the area would have triggered the State calling more fact witnesses to present the gang history. 
  • The accomplice liability jury instructions, in conjunction with the instructions outlining the statutory elements of the various underlying crimes, adequately and correctly instructed the jury about the mens rea required to convict the defendant as an accomplice. 
  • A defendant’s recorded, out-of-court interview is not testimonial for purposes of determining whether to allow the jury to have access to it during deliberations. 
  • The district court did not abuse its discretion when it denied the defendant’s motion for a mistrial after a detective testified that he thought a witness would be important to the case, the detective could not find the witness, and the State stipulated that there was no evidence of the defendant making contact with the witness.

Read the full court opinion