IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah,
Plaintiff and Appellee,
v.
Richard Donald Cooper,
Defendant and Appellant.
)
)
)
)
)
)
)
)
)
OPINION
Case No. 20090396‐CA
F I L E D
(August 18, 2011)
2011 UT App 271
‐‐‐‐‐
Third District, West Jordan Department, 071402198
The Honorable Robert Adkins
Attorneys:
Margaret P. Lindsay and Douglas J. Thompson, Provo, for Appellant
Mark L. Shurtleff and Marian Decker , Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges Davis, McHugh, and Christiansen.
CHRISTIANSEN, Judge:
¶1
Defendant Richard Donald Cooper challenges his jury convictions for four
counts of filing a wrongful lien, see Utah Code Ann. § 76‐6‐503.5 (2008).1 Specifically, he
asserts that the trial court erred in taking judicial notice of a prior judicial determination
1
For the reader’s convenience we cite to the current version of the code
throughout this opinion because the relevant provisions are unchanged from the
version in effect at the time of Defendant’s actions, unless we specifically indicate
otherwise.
that a purported lien Defendant had previously filed was wrongful and in denying his
motion for a mistrial. We affirm.
BACKGROUND2
¶2
In 1997, Mary and Richard Pace purchased a sixty‐three percent property interest
at a tax sale. Due to complications that arose in asserting their rights to the property,
the Paces hired attorney Rodney Rivers, who conducted a title search that revealed
several people with a potential interest in the property. Rivers then filed a quiet title
action against Defendant; Defendant’s son, Jerry Cooper; and other potential owners.
Ultimately, Judge Lynn W. Davis entered a default judgment against Defendant, which
resulted in the Paces establishing their interest in the property in their quiet title action.
¶3
On November 15, 2004, Defendant recorded a document titled “Administrative
Judgment” with the Utah County Recorder’s Office. The Administrative Judgment
stated, in part, that the Paces, Rivers, and Judge Davis were jointly and severally liable
to Defendant’s son, Jerry Cooper, in the amount of $4.2 million. On July 21, 2005, Judge
Anthony Quinn entered a civil judgment declaring this Administrative Judgment a
wrongful lien as it related to Judge Davis.
¶4
On January 24, 2007, Defendant signed and recorded another document titled
“Consent Judgment.” The Consent Judgment referred to the Administrative Judgment
and purported to enable Defendant to collect certain liability, debt, or obligations
pursuant to the Administrative Judgment. The Consent Judgment listed the Paces,
Rivers, and Judge Davis as debtors and included an address for each party. The
Consent Judgment also stated that the Paces, Rivers, and Judge Davis were jointly and
severally liable to Defendant in the amount of $4.2 million, and that if this amount was
not paid within ninety days, it would “become a ‘commercial lien.’”
2
“‘On appeal from a jury verdict, we view the evidence and all reasonable
inferences in a light most favorable to that verdict and recite the facts accordingly.’”
State v. Allen, 2005 UT 11, ¶ 2, 108 P.3d 730 (citation omitted), cert. denied, 546 U.S. 832
(2005).
20090396‐CA
2
¶5
Subsequently, the State charged Defendant with four counts of filing a wrongful
lien for recording the Consent Judgment.3 See Utah Code Ann. § 76‐6‐503.5. During the
trial, the court took judicial notice of Judge Quinn’s prior determination that the
Administrative Judgment was a wrongful lien and denied Defendant’s motion for a
mistrial based on Judge Davis’s opinion testimony. The jury convicted Defendant on all
four counts. Defendant now appeals.
ISSUES AND STANDARDS OF REVIEW
¶6
Defendant asserts that the trial court violated rules 201 and 403 of the Utah Rules
of Evidence by taking judicial notice of Judge Quinn’s 2005 civil determination that the
Administrative Judgment was a wrongful lien. “We review the [trial] court’s judicial
notice of prior adjudicated facts under Rule 201 of the Utah Rules of Evidence for abuse
of discretion.” In re J.B., 2002 UT App 267, ¶ 14, 53 P.3d 958. “[T]he ordinary [rule] 403
analysis . . . favors admissibility and the appraisal of probative versus prejudicial value
of evidence is entrusted to the discretion of the trial judge. That discretion will not be
upset on appeal absent manifest error.” State v. Moore, 788 P.2d 525, 527 (Utah Ct. App.)
(citations omitted), cert. denied, 800 P.2d 1105 (Utah 1990).
¶7
Defendant also argues that the trial court abused its discretion in denying his
motion for a mistrial based on Judge Davis’s testimony.
A trial court’s denial of a motion for a mistrial will not be
reversed absent an abuse of discretion. In exercising its
discretion, “the trial court should not grant a mistrial except
where the circumstances are such as to reasonably indicate
. . . that a fair trial cannot be had” and that a mistrial is
necessary in order to avoid injustice. On appeal, the
prerogative of a reviewing court is much more limited.
Unless the trial court’s determination “is plainly wrong in
that the incident so likely influenced the jury that the
defendant cannot be said to have had a fair trial, we will not
3
The State also charged, but later dropped, four counts of retaliation against a
witness, victim, or informant, see Utah Code Ann. § 76‐8‐508.3 (2008).
20090396‐CA
3
find that the court’s decision was an abuse of discretion.”
We defer to the trial court’s ruling because of the
“advantaged position of the trial judge to determine the
impact of events occurring in the courtroom on the total
proceedings.”
State v. Wach, 2001 UT 35, ¶ 45, 24 P.3d 948 (omission in original) (citations omitted); see
also id. ¶ 46 (affirming the trial court’s denial of the defendant’s motion for a mistrial
because the victim’s improper remark “did not render [the defendant’s] trial so unfair
that the trial court was ‘plainly wrong’”).
ANALYSIS
¶8
To establish that Defendant filed a wrongful lien, the State was required to prove
beyond a reasonable doubt that Defendant “knowingly ma[de], utter[ed], record[ed], or
file[d4] a lien[5]” and that Defendant “ha[d] no objectively reasonable basis to believe he
4
At trial, the jury was correctly instructed that “filing,” see Utah Code Ann. § 76‐
6‐503.5(1)(a) (2008), means presenting “a record to a filing office and tender[ing] . . . the
filing fee or acceptance of the record by the filing office,” Utah Code Ann. § 70A‐9a‐
516(1) (2009).
5
The jury was also correctly instructed that a “lien” may be defined as either (1)
“any instrument or document that creates or purports to create a lien or encumbrance
on an owner’s interest in real or personal property or a claim on another’s assets,” Utah
Code Ann. § 76‐6‐503.5(1)(c) (2008), or (2)
any document that purports to create a lien or encumbrance
on an owner’s interest in certain real property and at the
time it is recorded or filed is not:
(a) expressly authorized by this chapter or
another state or federal statute;
(b) authorized by or contained in an order or
judgment of a court of competent jurisdiction
in the state; or
(c) signed by or authorized pursuant to a
(continued...)
20090396‐CA
4
ha[d] a present and lawful property interest in the property or a claim on the assets.”
Utah Code Ann. § 76‐6‐503.5(2)(a) (2008).
I. Judicial Notice
¶9
During the State’s presentation of its case‐in‐chief, and over Defendant’s
objection, the trial court took judicial notice of Judge Quinn’s prior determination that
the Administrative Judgment recorded in 2004 was a wrongful lien:
Ladies and gentlemen of the jury, the Court is taking . . .
judicial notice of the action of another court of this state. The
document entitled “consent judgment” recorded on January
24, 2007, that’s been received as Exhibit No. 1 contains a
reference to a right in Administrative Judgment Claim
AJ‐27‐21‐98, dated 12 November 2004.
You are hereby instructed that said document
referenced therein as administrative judgment was
determined previously by a court of competent jurisdiction
of this state to be a wrongful lien. You may consider the
previous decision of that court finding that the
administrative judgment was a wrongful lien in your
deliberations in this case. And you may give that previous
decision the weight you think it deserves.
¶10 Defendant asserts that the trial court violated rules 201 and 403 of the Utah Rules
of Evidence by taking this judicial notice. Even if Defendant could establish that the
trial court violated a rule of evidence, to succeed, he must also establish that he was
prejudiced by any error. See Utah R. Crim. P. 30(a) (“Any error, defect, irregularity or
5
(...continued)
document signed by the owner of the real
property.
Utah Code Ann. § 38‐9‐1(6) (2005) (current version at id. § 38‐9‐1(6) (Supp. 2010)); see
also Utah Code Ann. § 76‐6‐503.5(1)(b) (2008) (“‘Lien’ means: . . . any instrument or
document described in Subsection 38‐9‐1(6) . . . .”). Defendant does not object to the
entry of these jury instructions defining parts of a wrongful lien conviction.
20090396‐CA
5
variance which does not affect the substantial rights of a party shall be disregarded.”);
State v. Knight, 734 P.2d 913, 920 (Utah 1987) (“For an error to require reversal, the
likelihood of a different outcome must be sufficiently high to undermine confidence in
the verdict.”); see also Redevelopment Agency v. Jones, 743 P.2d 1233, 1235 (Utah Ct. App.
1987) (determining that although the trial court erred in taking judicial notice, the error
was harmless because other properly admitted evidence “independently support[ed]
the jury verdict”). Defendant contends that the trial court’s acknowledgment that the
Administrative Judgment was a wrongful lien was prejudicial because, although the
Administrative Judgment and the Consent Judgment were admitted into evidence, no
other evidence was presented during the trial to establish that the Consent Judgment
“create[d] or purport[ed] to create a lien,” and the Consent Judgment itself does not
“create[] or purport[] to create a lien,” see Utah Code Ann. § 76‐6‐503.5. We disagree.
¶11 First, the Consent Judgment’s language clearly “purports to create a lien.” See id.
The Consent Judgment lists the names and addresses for the Paces, Rivers, and Judge
Davis and labels them as debtors. It then states that the debtors have given Defendant
“proxy power of attorney to act for [them]” and that the Administrative Judgment,
“incorporated by reference herein, be ratified, confirmed, and incorporated in this
Consent Judgment.” Other portions of the Consent Judgment state that the debtors are
“severally & jointly” obligated to perform and to pay “all liability, debt or obligations
incurred under Administrative Judgment.” The Consent Judgment provides that the
debtors “agree that $4,200,000.00 constitutes the total amount due and owing, by
[d]ebtors,”and “that the Statement and Demand,” which is described as part of the
Administrative Judgment, “is a ‘true bill in commerce’ which by operation of law
provides 90 days to discharge the ‘account receivable’ or the account become[s] a
‘commercial lien.’” There is no dispute that the ninety days had expired. Throughout
the Consent Judgment, there are additional references to the lien status of the
document, including that the parties “agree that after 90 days an unpaid debt due to the
[Defendant], may be assigned giving a new owner a Right of Lien to execute a Lien
Hold Claim against Debtors’ property, holding claim until the 1st day of January, 2105.”
¶12
The Consent Judgment also specifies that a
Creditor’s Right of Lien is in the nature of a commercial lien
and is not a lis pendens lien, and is not a statutory lien, and
is not a common law lien, and does not require a court
process for its establishment, validity, or execution, and it
20090396‐CA
6
cannot be removed by summary process (judge’s discretion),
nor by anyone except the authorized Lien Holder.
The Consent Judgment allows “the authorized Lien Holder [to] open any administrative
procedure for further remedy or relief until the attainment of the ends of justice have
been satisfied.” And, finally, the Consent Judgment states that “the administrative
admitted facts in this Consent Judgment are not subject to reconsideration in any action
in Law, Commerce, or otherwise, and [that] this Consent Judgment shall be recorded
for a perpetual memory and testimony.” Thus, the document itself clearly purports to
create a commercial lien.6
¶13 Second, additional evidence in the form of Judge Davis’s testimony was
presented about the subject of the judicial notice. Specifically, he testified that Judge
Quinn had determined that the Administrative Judgment was a wrongful lien against
Judge Davis.
¶14 Additionally, the judicial notice focused solely on the Administrative Judgment.
Although the Administrative Judgment referred to the Consent Judgment, the criminal
charges against Defendant were based upon the Consent Judgment alone. Furthermore,
at Defendant’s request, the jury did not receive any written documentation of Judge
Quinn’s determination regarding the Administrative Judgment.
¶15 Therefore, even if the trial court violated the rules of evidence by taking judicial
notice, that evidence was merely cumulative of what could be determined by the
express language of the Consent Judgment and Judge Davis’s testimony. From the face
of the Consent Judgment alone, the evidence is overwhelming that Defendant
purported to create a lien on the victims’ assets. Consequently, we conclude that the
trial court properly submitted the question of whether the Consent Judgment was a
“lien” to the jury, and Defendant did not suffer prejudice from any mistake regarding
the judicial notice because there is no reasonable likelihood that the result would have
been different in the absence of the judicial notice. Thus, any error by the trial court in
6
By concluding that the Consent Judgment purports to create a lien, we do not
suggest that it actually created a valid lien on the real or personal property of the Paces,
Rivers, or Judge Davis.
20090396‐CA
7
taking judicial notice of Judge Quinn’s conclusion about the Administrative Judgment
was harmless.7
II. Mistrial
¶16 “[A] district judge is in an advantaged position to determine the impact of
courtroom events on the total proceedings . . . .” State v. Allen, 2005 UT 11, ¶ 39, 108
P.3d 730, cert. denied, 546 U.S. 832 (2005). Therefore, “once a district court has exercised
its discretion and denied a motion for a mistrial, we will not reverse the court’s decision
unless it ‘is plainly wrong in that the incident so likely influenced the jury that the
defendant cannot be said to have had a fair trial.’” Id. (citation omitted).
¶17 The parties stipulated before trial that, because Judge Davis was not designated
as an expert witness, he could “not make reference to his legal opinion.” During the
State’s direct examination of Judge Davis, the following exchanges occurred:
[State]: [T]ell the jury, Judge Davis, briefly about the case
that I’m assuming you’re believing is . . . the only reason that
you have a $4.2 million filed against you?
7
We recognize that while the trial court gave the parties notice and an
opportunity to contest the judicially noticed fact, see In re C.Y., 765 P.2d 251, 254 (Utah
Ct. App. 1988), Defendant raises legitimate concerns about whether the trial judge in a
criminal case can properly take judicial notice of another court’s determination in a
related civil matter. Utah courts have not previously decided whether this is proper
under rule 201 of the Utah Rules of Evidence, and because of the facts of this case,
neither will we. However, we note that federal courts have determined that rule 201 of
the Federal Rules of Evidence does not allow a court to take judicial notice of facts
determined in another case, but courts are only allowed to take judicial notice of
whether a filing has been made in another case. See Taylor v. Charter Med. Corp., 162
F.3d 827, 829‐30 (5th Cir. 1998); see also Federal Rules of Evidence Manual § 201.02
(Matthew Bender & Co. 2010) (“The distinction is therefore between the existence of
judicial records and the truth of the facts recorded. A Court can take judicial notice that
a pleading was filed or that a judgment was entered. Likewise, a Court can take judicial
notice that court filings contained certain allegations, or that findings of fact were made
by another Court. But the truth of these allegations and findings are not proper subjects
of judicial notice.”). Additionally, “[r]ule 201 authorizes the court to take notice only of
‘adjudicative facts,’ not legal determinations.” Taylor, 162 F.3d at 831.
20090396‐CA
8
[Judge Davis]: I have no idea why I have a $4.2 million lien
filed against my wife and my home. We own our home. It’s
a modest home. We’ve worked hard through our entire
lives. It’s paid for. And now there’s a cloud on the title as it
relates to $4.2 million and . . . I don’t have the foggiest clue
as a matter of law how that came about other than the fact
these so‐called gibberish documents have been filed with the
Office of the Utah County Recorder’s and clouded the title
on our home.
. . . .
[State]: I want to ask you whether or not this document that
has been filed against you for $4.2 million is meaningless in
your eyes?
. . . .
[Judge Davis]: Listen, that document has generated two
additional lawsuits, tons of judicial time, taxpayer’s dollars
to get these matters resolved, has been a cloud on the
property, the good property of my wife and myself. To call
it meaningless is almost an absurdity. Whether it’s legal or
not, that’s another question. . . . We do have two judgments
from judges as it relates to that. It says that it’s void.[8]
¶18 Defendant did not object to these questions at the time they were asked, nor did
he move to strike Judge Davis’s answers. Moreover, during Defendant’s cross‐
examination of Judge Davis, Defendant elicited additional testimony, possibly more
damaging than the testimony given during the direct examination, about Judge Davis’s
view of the effectiveness of the Consent Judgment. For example,
[Defense Counsel:] [Y]ou said that . . . these two documents
cloud the title to your home?
8
The prosecutor’s direct examination concluded after Judge Davis finished this
answer.
20090396‐CA
9
[Judge Davis:] Sure. Absolutely.
[Defense Counsel:] Now, correct me if I’m wrong, please, a
lien is, in essence, a document or something that says that a
person owes someone money and they’re attaching that debt
to a property?
[Judge Davis:] Correct. That’s what [Defendant] did. He
indicated that it applied both to my real property and any
personal property that I had.
. . . .
[Defense Counsel:] What I’m asking [is if] it attaches to your
real property?
[Judge Davis:] It’s a commercial lien. It’s a right of lien. He
is a lienholder . . . claimant. He’s indicated in the
document—consent document that it cannot be set aside by
a court of law, cannot be removed by any summary process,
by any judge, nor anyone except him. They’re not subject to
reconsideration in any action in law and it shall be recorded
for a perpetual memory and testimony pursuant to The
Hague Convention.
. . . .
[Defense Counsel:] [The Consent Judgment] doesn’t say . . .
that it’s actually establishing the lien; it’s just describing
what that commercial lien will be if it became a commercial
lien, does it not?
[Judge Davis:] No. It’s an authorized lienholder. This is a
consent judgment, counsel.
. . . .
20090396‐CA
10
[Defense Counsel:] Now you indicated that these
documents put a cloud on your home?
[Judge Davis:] Absolutely.
[Defense Counsel:] Nowhere in these documents does it list
your home address; correct?
[Judge Davis:] No. As you heard the County Recorder
before say it can do it by name, it can do it by legal
description of property, it can do it by a serial number of
property. And it lists my name as a debtor of $4.2 million.
. . . .
[Defense Counsel: Before having the lien removed, did you
run] a title search to see if, in fact, these things actually . . .
clouded your title?
[Judge Davis:] I didn’t run a title search. I didn’t want to
spend hundreds of dollars to do so in connection with these
filings, counsel.
[Defense Counsel:] So you’re presuming that they actually
clouded the title of your home then based on your legal
experience?
[Judge Davis:] Oh, absolutely.
[Defense Counsel:] But you don’t actually have actual
knowledge of that?
[Judge Davis:] I think I have actual knowledge of the fact
that if you file a consent judgment that has $4.2 million in it
you’re referred to as a debtor and you owe that $4.2 million
to [Defendant] that that clouds the title of your property.
20090396‐CA
11
[Defense Counsel:] That’s your legal opinion?
[Judge Davis:] That’s my legal opinion.
. . . .
[Defense Counsel:] Now, . . . if a plaintiff came to court to
enforce those so‐called administrative and consent
judgments [and] came before you as a judge and asked you
to enforce those, would you?
[Judge Davis:] Heavens no.
[Defense Counsel:] They have no legal basis in the State of
Utah; correct, to support them?
[Judge Davis:] That’s what I have argued for four long years
in terms of setting these aside and getting the cloud off my
property, yes sir. Absolutely.
¶19 Although defense counsel elicited the vast majority of the challenged testimony
and did not move to strike Judge Davis’s responses, the following day he moved for a
mistrial on the ground that Judge Davis’s testimony gave “incorrect statements of the
law.” Specifically, Defendant contended that because of Judge Davis’s position as a
judge his statement that “a judgment [from a district court] is a lien” that clouded his
title “will have undue influence and great weight on the trial and would prejudice”
Defendant. Additionally, Defendant argued that “Judge Davis volunteered all this
information and he talked about them being liens, clouding his title as a matter of law
during direct and cross‐examination,”9 and that “he wasn’t responsive to questions”
and “continually rambled on.” The trial court denied the motion, reasoning that Judge
Davis’s testimony did not misstate the law and that Defendant elicited Judge Davis’s
testimony.
9
Defendant later argued that he was following up on what Judge Davis
“volunteered . . . in direct examination.”
20090396‐CA
12
¶20 On appeal, Defendant argues that the trial court should have granted a mistrial
because “Judge Davis’s testimony was so prejudicial, given the totality of the evidence
and the materiality of the testimony, that [Defendant] was denied a fair trial.”
Although Defendant now argues that the State intentionally elicited the statements, this
was not Defendant’s contention before the trial court. There, he argued that Judge
Davis had volunteered information that was unresponsive to the State’s questions.
¶21 “A review of our case law amply reveals that a mistrial is not required where an
improper statement is not intentionally elicited, is made in passing, and is relatively
innocuous in light of all the testimony presented.” State v. Allen, 2005 UT 11, ¶ 40, 108
P.3d 730, cert. denied, 546 U.S. 832 (2005). While we agree that the testimony was
unhelpful to the defense, we are not convinced that the State is at fault for its admission
because the State did not intentionally elicit the testimony. Additionally, given that the
jury was able to review the Consent Judgment, Judge Davis’s testimony was “relatively
innocuous in light of all the [evidence] presented.”10 See id.
¶22 Furthermore, because Defendant elicited the most damaging information, he
invited any error. When defense counsel elicits the improper testimony, “the alleged
error was invited by defendant’s own counsel, and thus defendant is in no position to
request a mistrial.” State v. Barney, 681 P.2d 1230, 1231 (Utah 1984); see also State v.
Dominguez, 2003 UT App 158, ¶ 33, 72 P.3d 127 (“Because the testimony complained of
was initially elicited by defense counsel’s cross‐examination of [the witness], any error
was invited. We have held repeatedly that on appeal, a party cannot take advantage of
an error committed at trial when that party led the trial court into committing the
error.” (internal quotation marks omitted)). Unlike the direct examination during
10
Moreover, the trial court instructed the jury that Judge Davis was not an expert
and that his testimony should be treated the same as any other witness. See generally
State v. Allen, 2005 UT 11, ¶ 37, 108 P.3d 730 (considering in its analysis that the trial
court offered a curative jury instruction regarding an improper comment), cert. denied,
546 U.S. 832 (2005); State v. Harmon, 956 P.2d 262, 271‐73 (Utah 1998) (discussing the
general acceptance of a trial court use of a curative jury instruction to remedy errors
during trial and stating that “‘[w]e normally presume that a jury will follow an
instruction to disregard inadmissible evidence inadvertently presented to it, unless
there is an “overwhelming probability” that the jury will be unable to follow the court’s
instructions, and a strong likelihood that the effect of the evidence would be
“devastating” to the defendant’” (quoting Greer v. Miller, 483 U.S. 756, 767 n.8 (1987))).
20090396‐CA
13
which Judge Davis’s answers were unresponsive to the questions asked, on cross‐
examination defense counsel directly elicited the nature of Judge Davis’s responses.
Under the circumstances, Defendant cannot be heard to complain of the error he
invited.
CONCLUSION
¶23 Defendant’s claim that the trial court violated the rules of evidence by taking
judicial notice fails because he cannot establish that he was prejudiced by any error.
Additionally, the trial court did not abuse its discretion in denying Defendant’s motion
for a mistrial. Thus, we affirm.
____________________________________
Michele M. Christiansen, Judge
‐‐‐‐‐
¶24
WE CONCUR:
____________________________________
James Z. Davis,
Presiding Judge
____________________________________
Carolyn B. McHugh,
Associate Presiding Judge
20090396‐CA
14
