State v. Noall

State v. Noall

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Jason Noall,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20030695-CA

F I L E D

(November 26, 2004)

2004 UT App 441

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Second District, Ogden Department

The Honorable Pamela G. Heffernan

Attorneys: Dee W. Smith, Ogden, for Appellant

Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

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Before Judges Billings, Greenwood, and Thorne.

BILLINGS, Presiding Judge:

Jason Noall (Defendant) appeals his jury conviction for theft, a second degree felony. See Utah Code Ann. § 76-6-404 (2002). Defendant argues that (1) the prosecutor made statements during closing argument that constitute prosecutorial misconduct and (2) the trial court erred by denying his motion to arrest judgment. We affirm.

Defendant argues that the prosecutor's statements in closing argument rebuttal, that the detective who prepared the photo lineup "didn't just pull [Defendant's] name out of the hat" and that the detective had "some reason to put together a full lineup with [Defendant's] picture in there," constituted misconduct warranting reversal. We disagree.

To demonstrate prosecutorial misconduct warranting reversal, Defendant must establish that the prosecutor's remarks (1) "called to the jury's attention matters which they would not be justified in considering in reaching their verdict, and (2) under the circumstances, the jury was probably influenced by the remarks." State v. Stevenson, 884 P.2d 1287, 1290 (Utah Ct. App. 1994). The second prong of the prosecutorial misconduct test requires Defendant to show that "'the error was substantial and prejudicial such that there is a reasonable likelihood that, in its absence, there would have been a more favorable result.'" Id. (quoting State v. Cummins, 839 P.2d 848, 852 (Utah Ct. App. 1992)). We look to the totality of the evidence presented at trial in reviewing the issue of prosecutorial misconduct, see id., and "the trial court's rulings on whether the prosecutor's conduct merits a mistrial will not be overturned absent an abuse of discretion," State v. Fixel, 945 P.2d 149, 151 (Utah Ct. App. 1997) (quotations and citation omitted).

Prior to the alleged misconduct, the trial court ruled that the prosecutor could refer to an informant's tip that the detective had received regarding Defendant. The trial court informed the jury that the evidence of the tip was admissible only for the purpose of explaining why the detective prepared a photo array that included Defendant's picture and not to show that Defendant committed the crime. Thus, the prosecutor's remarks did not call attention to matters which the jury could not properly consider in reaching their verdict. See Stevenson, 884 P.2d at 1290.

Furthermore, even assuming that the prosecutor's statements were improper, there is not a reasonable likelihood that reference to the informant's tip in closing arguments affected the outcome. See id. There was sufficient evidence for the jury to find Defendant guilty of theft. Thus, given our deferential standard of review, we cannot say that the trial court abused its discretion in denying Defendant's motion to arrest judgment. Accordingly, we affirm.

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Judith M. Billings,

Presiding Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge