State of Utah v. Kocher

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State of Utah,
Plaintiff and Appellee,

v.

John Richard Kocher,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981555-CA

F I L E D
March 2, 2000
  2000 UT App 53 -----

Third District, Sandy Department
The Honorable Roger A. Livingston

Attorneys:
Joan C. Watt and Karen Stam, Salt Lake City, for Appellant
Jan Graham and Jeffrey S. Gray, Salt Lake City, for Appellee

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Before Judges Greenwood, Billings, and Garff.(1)

BILLINGS, Judge:

Appellant John Kocher asserts on appeal that his theft conviction should be vacated and his case remanded for a new trial because the trial court erred in admitting lay opinion testimony under Rule 701 of the Utah Rules of Evidence. We affirm the conviction.

Under Rule 701, a lay person can give opinion testimony if the opinion is "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Utah R. Evid. 701. The trial court permitted the car salesman to give his opinion whether Kocher's actions were deliberate in driving into an intersection into oncoming traffic. Kocher argues this was error.

However, "like any other evidentiary ruling, an erroneous decision to admit or exclude evidence . . . cannot result in reversible error unless the error is harmful." State v. Hamilton, 827 P.2d 232, 240 (Utah 1992). We conclude that any error in admitting the salesman's opinion testimony was harmless.

An error is harmful only if we determine that "absent the error there is a reasonable likelihood of an outcome more favorable to the defendant." State v. Dunn, 850 P.2d 1201, 1221 (Utah 1993). To require reversal, an error must undermine our confidence in the verdict. See Hamilton, 827 P.2d at 240. We consider, among other things, the importance of the challenged testimony and the overall strength of the State's case in evaluating whether an error is harmful. See id.

Here, the only real contested element of theft was intent to permanently deprive the owner of property. See Utah Code Ann. § 76-6-404 (1995). Evidence supporting a conclusion that Kocher intended to permanently deprive Brison Imports of the car includes Kocher's failure to return the car after the immediate supposed threat had passed; Kocher's use of the car the following day, again with no attempt to return the car to the dealership; his fleeing from police in the car; his concealment of the car in a private parking lot under a car cover; and his statement to the police denying possession of the car.

Kocher's own actions after taking the car are strong evidence supporting a conclusion that he intended to permanently deprive Brison Imports of the car. Thus, in the context of the entire case, any error in admitting the salesman's testimony that Kocher deliberately drove into the intersection is insufficient to undermine our confidence in the verdict. Accordingly, we affirm.
 
 
 

______________________________
Judith M. Billings, Judge -----

WE CONCUR:
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 

______________________________
Regnal W. Garff, Judge

1. Senior Judge Regnal W. Garff, sitting by special appointment pursuant to Utah Code Ann. § 78-2-4(2) (1996); Utah Code Jud. Admin. R3-108(4).