State of Utah v. Milan Otkovic

¶1 Milan Otkovic challenges his convictions and sentences for

aggravated kidnapping, a first degree felony, Utah Code Ann. § 76-

5-302(1), (3) (LexisNexis Supp. 2013),1 and aggravated robbery, a

first degree felony, id. § 76-6-302(1)–(2) (2012). We reverse and

remand for a new trial.

State v. Otkovic

2. "On appeal, we recite the facts from the record in the light most

favorable to the jury's verdict and present conflicting evidence only

as necessary to understand issues raised on appeal.” State v. Bluff,

2002 UT 66, ¶ 2, 52 P.3d 1210 (citation and internal quotation marks

omitted).

3. When initially arrested, Otkovic claimed not to have been with

Hawkins at all on the night of the robbery, but he later admitted to

having met Hawkins for the purpose of selling him stolen

property.

20120197-CA 2 2014 UT App 58

BACKGROUND

¶2 On May 24, 2009, Otkovic sent a text message to Travis

Hawkins offering to sell him a television and a computer.2

According to Otkovic, he and another man named Matt Shields

were involved in a multi-state theft ring with Hawkins. Otkovic,

Shields, and others would create receipts for high-priced items they

had not purchased and use the receipts to walk out of the store

with stolen merchandise. They would then sell the merchandise to

Hawkins, who would resell it for a profit. Otkovic maintains that

he and Shields met Hawkins at Hawkins's brother's window

tinting shop and sold the television and computer to him for

approximately $1,600 and that Hawkins voluntarily drove to an

ATM to obtain cash to pay them.3

¶3 Hawkins reported and later testified that he believed the text

message came from Shields and that he had never met Otkovic but

had seen him once before in Shields's company. According to

Hawkins, it was not Otkovic and Shields, but Otkovic and an

unidentified woman, who met him at the tinting shop. He

maintained that Otkovic had not brought anything to sell but

instead held Hawkins at gunpoint and demanded money. After

stealing $1,680 in cash from Hawkins's wallet, Otkovic ordered

Hawkins to drive them to an ATM to get more money. Hawkins

drove them to an ATM about six blocks away and withdrew $300

from one account but avoided withdrawing more money from

other accounts by pretending to have forgotten his PIN numbers.

State v. Otkovic

20120197-CA 3 2014 UT App 58

Eventually, Otkovic relented and had Hawkins return them to the

tinting shop, whereupon he stole Hawkins's phone, threatened

him, and ordered him not to report the robbery. Otkovic then

forced Hawkins to stand in front of an upstairs window holding up

a broom while Otkovic made his escape, threatening to come back

to "take care of” Hawkins if he saw the broom drop.

¶4 Hawkins's girlfriend claimed that he arrived home "frantic”

and "shaking” and announced that he had been robbed. Hawkins

reported that he used his son's phone to call Shields and get

Otkovic's name and phone number. He then called Otkovic and

told him that he would not involve the police if Otkovic would

return his money and phone. Hawkins and his girlfriend asserted

that Otkovic then threatened to kill Hawkins's children.

¶5 After talking to Otkovic, Hawkins contacted police to report

the robbery. A short time later, Hawkins provided the police with

a cell phone that he claimed to have received from Shields. The cell

phone contained text messages received from Otkovic's phone. The

first was sent at 7:57 p.m., about two minutes before the ATM

withdrawal occurred. It read, "I'm Robbin[g] Travis. Don't tell him

my name or anything, not my phone number, not a work, [sic] I'm

serious.” Additional messages were received later in the evening:

an 8:11 p.m. text read, "Don't snitch on me niga”; an 8:12 p.m. text

read, "I told him I was fightin with you ha ha ha don't listen to him

I told him I robbed you too. But don't bring my number or name

up”; a 9:16 p.m. text read, "U gave that niga my number?”; and a

9:51 p.m. text read, "Ha ha ha ya I told him ima rob you too. I'm

playin tho. I mean u still owe me 1500 don't forget.” Hawkins

reported that he had seen Otkovic using a white Blackberry cell

phone at various points during the robbery but that he had not

noticed Otkovic using it while they were at the ATM.

¶6 When Otkovic was arrested, police searched his home and

found a white Blackberry and a pistol that matched Hawkins's

description of the gun Otkovic had used. They also found $1,616 in

cash. The phone number associated with the Blackberry was the

same phone number used to send the text messages discovered on

State v. Otkovic

20120197-CA 4 2014 UT App 58

the phone Hawkins had delivered to police. At trial, Otkovic

testified that he had loaned his phone to Shields a "few times”

while they were meeting with Hawkins and then later that night

before they separated around 10:00 p.m. When the State began

questioning a police witness about the text messages, Otkovic

objected, arguing that the State had failed to lay a sufficient

foundation for the text messages to be admitted. The trial court

overruled the objection and admitted the texts.

¶7 In the course of their investigation, the police requested that

U.S. Bank provide copies of surveillance video from the ATM. A

representative from the bank sent an email describing the footage:

"Here is what I have: Now you can see that there is someone else

in the car but there is no way to tell who it is since the camera is

(theoretically) aimed at the driver. The driver also puts his hands

up periodically.” Three photographs were attached to the email,

but no passenger was visible in the photographs and none of them

portrayed Hawkins holding up his hands. The State did not

disclose the photographs or the email to Otkovic until the week

before trial. Upon receiving this information, Otkovic's counsel

attempted to obtain the surveillance video from the bank but was

informed that only the photographs had been retained and that the

video had been destroyed. Based on the email describing footage

not contained in the photographs and the bank's representation

that the video was destroyed, Otkovic moved to dismiss the case

due to loss or destruction of evidence. The trial court denied the

motion because it concluded that Otkovic could not demonstrate

a reasonable probability that the video footage, if it existed,

contained exculpatory evidence. However, the trial court did fault

the State for failing to timely disclose the photographs and

prohibited the State from using the photographs at trial.

¶8 Prior to trial, Otkovic also moved to admit evidence relating

to Hawkins's criminal enterprise both to impeach Hawkins's

credibility and to support the defense theory that the money

Hawkins claims Otkovic stole from him was actually given to

Otkovic by Hawkins as payment for stolen goods. Otkovic also

asserted that the evidence would demonstrate that Hawkins was

State v. Otkovic

4. A "fence” is "a person who receives and disposes of stolen

goods.” Dictionary.com, http://dictionary.reference.com/browse/

fence (last visited Feb. 19, 2014).

20120197-CA 5 2014 UT App 58

familiar with Otkovic's gun before the alleged robbery and that he

had a motive to frame Otkovic out of loyalty to Shields, who was

becoming paranoid because Otkovic was outperforming him. The

court permitted Otkovic to introduce evidence of his dealings with

Hawkins and Shields and of the rivalry between Otkovic and

Shields, but it excluded other general evidence of Hawkins's

criminal activity under rule 403 of the Utah Rules of Evidence

because of its potential to mislead the jury and delay the trial.

Shields was unavailable to testify at trial, so evidence relating to

Hawkins's criminal involvement with Shields and Otkovic was

limited to Otkovic's own testimony.

¶9 When Hawkins was asked about his business at trial, he

admitted to buying and reselling things but maintained that he was

unaware whether the merchandise was stolen and that in ten years

he had never had a problem with merchandise he had purchased

and resold turning out to be stolen. In response to this testimony,

Otkovic sought to introduce evidence that during the previous ten

years, Hawkins had been convicted of burglary, charged with

stealing golf carts, and arrested several times for receiving stolen

property, as well as evidence gathered by investigators indicating

that Hawkins had continued to act as a fence4 after the incident

with Otkovic. However, the trial court reaffirmed its earlier ruling

and prevented Otkovic from presenting any of this evidence.

During closing argument, the prosecutor relied on Hawkins's

representation that he had never had any problems with stolen

property, reminding the jury, "Mr. Hawkins testified, 'I have had

no problems with stolen goods.' . . . [D]id you ever hear any . . .

evidence introduced that Mr. Hawkins lied about that? Any

evidence introduced that Mr. Hawkins has had any problems? No.

Because he hasn't.”

¶10 The jury convicted Otkovic of aggravated kidnapping and

aggravated robbery. He had also previously pleaded guilty to

State v. Otkovic

5. Although Otkovic also asserts the admissibility of this evidence

under rules 404(a), 404(b), 405(b), and 608(c) of the Utah Rules of

Evidence, the trial court's ruling was based solely on rule 403, and

the State has not raised an alternative argument that the evidence

should have been excluded under any other rule of evidence.

20120197-CA 6 2014 UT App 58

possession of a weapon by a restricted person. The trial court

sentenced him to prison terms of six years to life for aggravated

robbery, sixteen years to life for aggravated kidnapping, and zero

to five years for possession of a weapon. At the time, Otkovic was

already serving sentences for previous convictions. The trial court

ordered that his sentences for his convictions in this case run

concurrently with each other but consecutive to the sentences he

was already serving. Otkovic appeals.

ISSUES AND STANDARDS OF REVIEW

¶11 First, Otkovic challenges the trial court's decision to exclude

relevant evidence regarding Hawkins's history as a fence under

rule 403 of the Utah Rules of Evidence.5 "We review a trial court's

decision to admit or exclude evidence under Rule 403 of the Utah

Rules of Evidence under an abuse of discretion standard, and will

not overturn a lower court's determination of admissibility unless

it is beyond the limits of reasonability.” Diversified Holdings, LC v.

Turner, 2002 UT 129, ¶ 6, 63 P.3d 686 (citation and internal

quotation marks omitted).

¶12 Otkovic further asserts that the trial court erred in finding

the foundational evidence sufficient to authenticate the text

messages. We review the trial court's determination for abuse of

discretion. See State v. Silva, 2000 UT App 292, ¶ 11, 13 P.3d 604.

¶13 Finally, Otkovic argues that his case should have been

dismissed due to the loss or destruction of the ATM video.

"Whether the State's destruction of potentially exculpatory

evidence violates due process is a question of law that we review

for correctness,” but "we incorporate a clearly erroneous standard

State v. Otkovic

6. Otkovic raises a number of additional claims on appeal that we

need not address in light of our ruling on the rule 403 issue.

20120197-CA 7 2014 UT App 58

[in reviewing] the necessary subsidiary factual determinations.”

State v. Tiedemann, 2007 UT 49, ¶ 12, 162 P.3d 1106 (citation and

internal quotation marks omitted).6

ANALYSIS

I. Exclusion of Evidence Under Rule 403

¶14 Otkovic asserts that evidence of Hawkins's criminal history

as a fence is relevant to contradict Hawkins's claim at trial that he

had "never had a problem with anything [he's] purchased” turning

out to be stolen and to support Otkovic's theory that his criminal

involvement with Hawkins and Shields gave them a motive to

frame him. The State asserts that the trial court acted within its

discretion in excluding the evidence under rule 403 of the Utah

Rules of Evidence out of concern that general evidence relating to

Hawkins's fencing operation would "confuse the jury and unduly

delay the trial.”

¶15 Under rule 403, "[t]he court may exclude relevant evidence

if its probative value is substantially outweighed by a danger of . . .

unfair prejudice, confusing the issues, misleading the jury, undue

delay, wasting time, or needlessly presenting cumulative

evidence.” Utah R. Evid. 403. "Rule 403 . . . is an inclusionary rule.

Specifically, Rule 403 presumes the admission of all relevant

evidence except where the evidence has an unusual propensity to

unfairly prejudice, inflame, or mislead the jury. . . . [I]f the evidence

is prejudicial but is at least equally probative[,] . . . it is properly

admissible.” State v. Ramirez, 924 P.2d 366, 369–70 (Utah Ct. App.

1996) (second alteration and second omission in original) (citations

and internal quotation marks omitted); see also State v. Dunn, 850

P.2d 1201, 1221–22 (Utah 1993) (explaining that "we indulge a

presumption in favor of admissibility”).

State v. Otkovic

20120197-CA 8 2014 UT App 58

¶16 Throughout the proceedings, the trial court expressed

concern about "throwing the door wide open” to Otkovic's

"general effort to show that [Hawkins] is a fence and a bad guy.”

In its pretrial ruling, the trial court expressed particular concern

with evidence regarding "the vastness of Mr. Hawkins' operation

and the money that he was raking in” as being "absolutely

irrelevant.” Given the trial court's broad discretion to evaluate the

admissibility of evidence under rule 403, we do not consider the

trial court's decision to limit general evidence regarding Hawkins's

fencing operation to have been outside its discretion.

¶17 However, we agree with Otkovic that the extent of that

limitation was unreasonable. The question of whether Hawkins

was a fence was not raised simply to show that Hawkins was a

criminal; rather, it was central to Otkovic's defense that he had

been part of Hawkins's criminal enterprise and that his

involvement in that enterprise had given Hawkins and Shields a

motive to frame him. See Utah R. Evid. 404(b)(2) (providing that

evidence of prior bad acts "may be admissible for [noncharacter]

purpose[s], such as proving motive”); id. R. 608(c) (providing that

a "motive to misrepresent may be shown to impeach the witness

either by examination of the witness or by other evidence”).

Evidence demonstrating the basic fact that Hawkins was a fence

was at least equally probative as it was prejudicial, especially after

Hawkins asserted that he had "never had a problem” with stolen

property. Cf. State v. Thompson, 2014 UT App 14, ¶ 30 ("[O]nce the

defendant offers evidence or makes an assertion as to any fact, the

State may cross-examine or introduce on rebuttal any testimony or

evidence which would tend to contradict, explain or cast doubt

upon the credibility of his testimony.” (emphasis, citation, and

internal quotation marks omitted)). While it may not have been

necessary to introduce evidence demonstrating the size of

Hawkins's operation and the money he made, proving that

Hawkins was knowingly involved in a fencing operation was

necessary to Otkovic's defense. Because Shields was not available

to testify, Otkovic was prevented from presenting any other

evidence to corroborate his own testimony that Hawkins fenced

goods stolen by Otkovic and Shields.

State v. Otkovic

20120197-CA 9 2014 UT App 58

¶18 In particular, the probative value of evidence contradicting

Hawkins's assertion that he had "never had a problem” with stolen

property far outweighed any danger of confusing the jury or

delaying the trial. If Otkovic were seeking to disprove the

truthfulness of a statement relating to a collateral matter, we might

be inclined to defer to the trial court's ruling under rule 403. But

given that the statement concerned a fact at the heart of Otkovic's

defense—whether Hawkins was a fence who had purchased stolen

property from Otkovic—Otkovic's inability to contradict it

significantly undercut his defense. In fact, preventing Otkovic from

presenting any general evidence that Hawkins was a fence was

likely to result in the very outcome the trial court was trying to

avoid—confusing the jury. In closing argument, the State used this

lack of evidence to bolster Hawkins's testimony and make it appear

as though there was no evidence available to contradict Hawkins's

assertion that he had never had a problem with stolen property:

"Mr. Hawkins testified, 'I have had no problems with stolen

goods.' . . . [D]id you ever hear any . . . evidence introduced that

Mr. Hawkins lied about that? Any evidence introduced that Mr.

Hawkins has had any problems? No. Because he hasn't.”

¶19 The State asserts that even if the trial court erred in

excluding evidence under rule 403, the error was harmless in light

of damning evidence against Otkovic, namely the text messages in

which Otkovic admits to robbing Hawkins and the fact that he lied

to police by claiming not to have been with Hawkins on the night

of the alleged robbery. However, neither piece of evidence is

determinative. Although sufficient foundation was laid for the texts

to be admissible, see infra ¶ 21, the evidence of their authenticity

was not conclusive. Otkovic testified that Shields was present when

he met Hawkins and that he loaned his phone to Shields during the

time when the text messages were sent, and Hawkins testified that

he did not see Otkovic using the phone while they were at the

ATM. Furthermore, the number to which the texts were sent did

not match either of the numbers stored in Otkovic's phone as

belonging to Shields or the number Otkovic used to call Shields

after the robbery. And the texts warned Shields not to give

Hawkins Otkovic's phone number, despite the fact—demonstrated

by phone records—that Hawkins already had Otkovic's phone

State v. Otkovic

7. Otkovic also raises arguments regarding prosecutorial

misconduct and ineffective assistance of counsel. We are concerned

that a number of statements made by the prosecutor in closing

argument appear to have misstated the evidence. Trial counsel's

failure to effectively use the phone records in support of Otkovic's

case is also troublesome, as discussed in Judge Voros's concurring

opinion. Taken together and considered in light of the erroneously

excluded evidence, these errors further undermine our confidence

in the verdict. However, we find it unnecessary to address these

additional errors in detail because the exclusion of evidence that

Hawkins was a fence alone warrants a new trial.

8. For the same reason, we deny Otkovic's rule 23B motion to

remand the case for additional findings regarding his ineffective

assistance of counsel claims. See generally Utah R. App. P. 23B.

20120197-CA 10 2014 UT App 58

number. Given Otkovic's defense that he had been framed, this

evidence could have raised a reasonable doubt as to who actually

sent the messages from Otkovic's phone. Additionally, evidence

that Otkovic lied to police about being with Hawkins does not

necessarily prove that he robbed Hawkins; it could also be

explained by Otkovic's desire to keep police from finding out about

his selling stolen property. Had the jury been presented with

evidence supporting Otkovic's assertion that Hawkins was a fence,

it may have been more inclined to believe Otkovic's story,

including his assertions about the text messages. Thus, the blanket

exclusion of this evidence undermines our confidence in the

verdict.7 See 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.”). We

therefore find it necessary to reverse Otkovic's conviction and

remand for a new trial.

II. Other Issues Likely to Arise on Remand

¶20 Because Otkovic will receive a new trial, we need not

address the majority of his remaining arguments.8 However, we

find it necessary to address two legal issues that are likely to arise

State v. Otkovic

20120197-CA 11 2014 UT App 58

on remand and were fully briefed on appeal, namely, the

admissibility of the text messages and the impact of the missing

ATM video. See State v. James, 819 P.2d 781, 795 (Utah 1991) ("Issues

that are fully briefed on appeal and are likely to be presented on

remand should be addressed by this court.”).

A. Admissibility of the Text Messages

¶21 Otkovic argues that the trial court should not have admitted

the text messages between his phone and the phone allegedly

provided by Shields because the messages were not properly

authenticated. "To satisfy the requirement of authenticating or

identifying an item of evidence, the proponent must produce

evidence sufficient to support a finding that the item is what the

proponent claims it is.” Utah R. Evid. 901(a); see also id. R. 901(b)

(providing examples of how evidence may be authenticated).

¶22 We have not previously had the opportunity to consider the

foundational requirements that must be met in order for text

messages to be admitted. However, a number of other jurisdictions

have held that text messages may be "authenticated by

circumstantial evidence establishing the evidence was what the

proponent claimed it to be.” State v. Thompson, 2010 ND 10, ¶ 24,

777 N.W.2d 617 (collecting cases); see also Commonwealth v. Koch, 39

A.3d 996, 1005 (Pa. Super. Ct. 2011) (holding that "authentication

of electronic communications, like documents, requires more than

mere confirmation that the number or address belonged to a

particular person,” and that "[c]ircumstantial evidence, which

tends to corroborate the identity of the sender, is required” as a

foundational prerequisite to admissibility), appeal granted, 44 A.3d

1147 (Pa. May 15, 2012) (No. 947 MAL 2011); cf. State v. C.D.L., 2011

UT App 55, ¶ 25, 250 P.3d 69 (explaining that a telephone caller's

identity may be authenticated by circumstantial evidence).

¶23 In this case, the State presented not only evidence indicating

that the text messages came from Otkovic's phone, but also

evidence that could support a finding that Otkovic was in

possession of the phone at the time the text messages were sent.

The texts were sent from the phone number assigned to the white

State v. Otkovic

9. The trial court also did not err in rejecting Otkovic's hearsay

argument. If the jury determined that the texts were sent by

Otkovic, then the texts would not be hearsay. See generally Utah R.

Evid. 801(d)(2), (d)(2)(A) (providing that a statement "offered

against an opposing party” and "made by the party in an

individual or representative capacity” is not hearsay). If the jury

determined that the texts were sent by someone other than

Otkovic, then it could not possibly determine that Otkovic had

made the admissions conveyed in the text messages.

20120197-CA 12 2014 UT App 58

Blackberry police discovered in Otkovic's apartment, which

Otkovic admitted was his. That phone matched Hawkins's

description of the phone he saw Otkovic use during the robbery,

and the robbery occurred during the same time frame when the

text messages were sent. Although Otkovic's own testimony that

Shields was also in the car when they went to the ATM and that he

let Shields use his phone during that time period tended to

contradict Hawkins's testimony, the contradictory testimony goes

to the weight of the evidence, not its admissibility. By presenting

evidence that the phone from which the text messages originated

belonged to Otkovic and that he had possession of it at the time the

messages were sent, the State met its burden to make a prima facie

showing of authenticity. See United States v. Tank, 200 F.3d 627, 630

(9th Cir. 2000) (explaining that under the substantively identical

rule 901 of the Federal Rules of Evidence, "[t]he government need

only make a prima facie showing of authenticity . . . so that a

reasonable juror could find in favor of authenticity or

identification” (citation and internal quotation marks omitted)).

Accordingly, the trial court did not exceed its discretion in

determining that the evidence was sufficient to authenticate the

text messages.9

B. Loss or Destruction of the ATM Video

¶24 Otkovic also argues that the case should be dismissed based

on the loss or destruction of the ATM video. The destruction of

exculpatory evidence may support a motion to dismiss criminal

charges. State v. Tiedemann, 2007 UT 49, ¶ 41, 162 P.3d 1106; see also

State v. Otkovic

10. Because Otkovic has failed to demonstrate a reasonable

probability that the evidence was exculpatory, we need not

examine the extent of the State's duty, if any, to obtain evidence

before it is destroyed by a third party. However, we do observe

that other jurisdictions that have considered the issue have

declined to impose such a duty. See, e.g., State v. Allum, 2005 MT

150, ¶¶ 34–35, 114 P.3d 233 (holding that the prosecution's failure

to obtain bank surveillance video before it was destroyed by the

bank did not violate the prosecution's duty to disclose exculpatory

evidence); People v. Banks, 768 N.Y.S.2d 467, 468 (N.Y. App. Div.

2003) ("The People have no constitutional or statutory duty to

acquire, or prevent the destruction of, evidence generated and

possessed by private parties . . . .”).

11. The State maintains that the bank representative could be

describing the photographs that were attached to the email and

that there is no indication that any video actually existed. Given

that the photographs received by police apparently did not portray

either Hawkins putting his hands up or a passenger in the vehicle,

the State's position is questionable. We need not resolve this

question, however, and simply assume, for purposes of our

analysis, that the bank had a video recording in its possession at

some point and that the police either misplaced or never received

it.

20120197-CA 13 2014 UT App 58

Utah R. Crim. P. 16(a)(4) (requiring that the prosecutor disclose

"evidence known to the prosecutor that tends to negate the guilt of

the accused”). However, to prevail on such a motion, a defendant

must first demonstrate, as a threshold matter, that there is "a

reasonable probability that lost or destroyed evidence would be

exculpatory.” Tiedemann, 2007 UT 49, ¶ 44. Otkovic has failed to

make such a threshold showing.10 The only evidence regarding the

contents of the video is the email from the bank, which states,

"Now you can see that there is someone else in the car but there is

no way to tell who it is since the camera is (theoretically) aimed at

the driver. The driver also puts his hands up periodically.”11 While

there is certainly a possibility that a video of the ATM transaction

could have been exculpatory, there is nothing in the record from

State v. Otkovic

12. Because the passenger was apparently unidentifiable, it would

not even help for the video to show someone texting, since the

person texting could be either Shields, Otkovic, or the female

accomplice.

13. For the same reason, Otkovic cannot demonstrate prejudice in

conjunction with his alternative claim that his counsel performed

ineffectively by failing to obtain the ATM photographs and video

directly from the bank. See generally State v. Litherland, 2000 UT 76,

¶ 19, 12 P.3d 92 (explaining that an ineffective assistance claim

requires a showing "that counsel's deficient performance was

prejudicial—i.e., that it affected the outcome of the case” (citing

Strickland v. Washington, 466 U.S. 668, 687–88 (1984))).

20120197-CA 14 2014 UT App 58

which we can conclude that there was a reasonable probability of

such an outcome. Cf. State v. Gulbransen, 2005 UT 7, ¶¶ 46–47, 106

P.3d 734 (holding that a defendant was not entitled to a remedy

where laboratory evidence that was only "potentially useful,” in

that it "might have exonerated the defendant” upon testing, was

lost by the State Crime Lab (emphasis, citation, and internal

quotation marks omitted)). Indeed, the email suggests otherwise.

If the video showed Hawkins putting up his hands, that could

actually corroborate Hawkins's story that he was held at gunpoint.

Furthermore, since it was impossible to identify the passenger,

there would be no way to know whether it was Otkovic, Shields,

or the alleged female accomplice.12 Because Otkovic cannot make

the threshold showing that the video had a reasonable probability

of being exculpatory, the trial court correctly declined to analyze

the evidence further, see generally Tiedemann, 2007 UT 49, ¶¶ 44–45

(outlining the sliding-scale test trial courts are required to engage

in once the threshold showing is made), or to dismiss the case

based on destruction of evidence.13

CONCLUSION

¶25 We conclude that evidence of Hawkins's history as a fence

was improperly limited under rule 403 of the Utah Rules of

State v. Otkovic

20120197-CA 15 2014 UT App 58

Evidence. We therefore reverse Otkovic's convictions and remand

for a new trial. We further determine that the trial court did not err

in concluding that the text messages were sufficiently authenticated

to be admissible or in declining to dismiss the case based on the

loss of the ATM video.

VOROS, Judge (concurring):

¶26 I concur in the lead opinion. I write separately to mention an

additional issue that, together with the rule 403 issue identified by

the majority opinion, undermines my confidence in the outcome of

this trial.

¶27 Something went down the night of May 24, 2009. According

to Otkovic, he delivered merchandise to Hawkins, who paid him

approximately $1,600 for it. Otkovic claims Shields was also

present. This transaction was not unusual, Otkovic maintains, as

Hawkins ran a fencing operation, and Otkovic and Shields

regularly supplied him with stolen electronics for resale. When

picked up by police, Otkovic explains, he lied about having met

with Hawkins that night for fear the police would discover his role

in the fencing operation.

¶28 According to Hawkins, Otkovic and a woman robbed him

at gunpoint as Otkovic live-texted the robbery to Shields. Hawkins

denied running a fencing operation, denied having received stolen

goods, and denied having previously met Otkovic (other than at a

single meeting in which Otkovic gave a different name).

¶29 As the majority opinion explains, excluded evidence of

Hawkins's fencing operation would have supported Otkovic's

version of events and discredited Hawkins's. But Otkovic claims

many other irregularities at trial. In particular, he contends that his

trial counsel failed to exploit telephone records from Hawkins's cell

phone.

¶30 The phone records are telling. The incident occurred around

8:00 p.m. on May 24, 2009. But Hawkins called Shields's number at

State v. Otkovic

20120197-CA 16 2014 UT App 58

4:04 p.m. (a four-minute call), then Otkovic's number at 4:10 p.m.

(also a four-minute call). Hawkins called Otkovic's number again

at 6:55 p.m. (a two-minute call), and Otkovic's number called

Hawkins at 7:11 p.m. (a one-minute call) and again at 7:35 p.m. (a

one-minute call). Hawkins also received two text messages from

Otkovic's number at 1:55 p.m., texted Otkovic's number at 3:01

p.m., and received another text from Otkovic's number at 3:08 p.m.

These calls and texts undermine Hawkins's testimony that he did

not know Otkovic before the robbery. They also cast doubt on the

authenticity of the robbery texts, which suggest that Hawkins did

not have Otkovic's number until Shields gave it to him after the

incident.

¶31 Otkovic credits his trial counsel with introducing these

phone records but claims that not using them to impeach

Hawkins's testimony constituted ineffective assistance of counsel.

To succeed on a claim of ineffective assistance of counsel, a

defendant must show both "that counsel's representation fell below

an objective standard of reasonableness” and "that there is a

reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland v. Washington, 466 U.S. 668,

688, 694 (1984); see also State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.

¶32 The State does not contend that trial counsel's performance

fell within the wide range of professional assistance. Rather, it

contends that Otkovic cannot show a reasonable probability of a

different result for at least two reasons. First, the State asserts,"the

alleged inconsistency is likely more illusory than real” because

"Hawkins testified that he mistakenly believed he was

communicating with Shields.” However, a jury aware of the phone

records might reasonably have questioned whether Hawkins could

converse by phone with Shields for four minutes, immediately call

Otkovic's number, and, thinking he was again speaking with

Shields, converse for another four minutes with a stranger who, as

it happens, was born and raised in Croatia.

State v. Otkovic

20120197-CA 17 2014 UT App 58

¶33 Second, the State argues that in any event, other evidence

firmly established Otkovic's guilt. This evidence included texts sent

from Otkovic's phone during the robbery, a photograph of

Hawkins's driver license found on Otkovic's phone, a gun

matching the one Hawkins described and cash in the approximate

amount Hawkins reported as stolen found in Otkovic's bedroom,

and Otkovic's false statements to police. However, the cash, the fact

that Hawkins could describe Otkovic's gun, and Otkovic's false

police statements are all consistent with Otkovic's version of

events, namely that he was selling stolen merchandise to a familiar

associate. Furthermore, while the texts incriminate Otkovic, they

also imply that Hawkins obtained Otkovic's phone number from

Shields after the incident—an implication refuted by phone records

showing that Hawkins had placed calls to that number before the

incident. The State is correct that how Hawkins obtained Otkovic's

number was a "tangential detail.” But the fact that Hawkins called

Shields before the incident and spoke for four minutes, then hung

up and called Otkovic and spoke for another four minutes is more

than a detail—it undermines Hawkins's version of events and

corroborates Otkovic's.

¶34 Otkovic's trial counsel never brought these discrepancies to

the jury's attention. This omission, especially viewed in tandem

with the exclusion of evidence of Hawkins's fencing operation,

undermines my confidence in the trial outcome.

See above