Opinion
Case No. 20060939-CA.
Filed: June 1, 2007. NOT FOR OFFICIAL PUBLICATION.
Appeal from Fifth District, St. George Department, 041500961, The Honorable James L. Shumate.
Gary W. Pendleton, St. George, for Appellant.
Mark L. Shurtleff and Brett J. Delporto, Salt Lake City, for Appellee.
Before Judges Bench, Greenwood, and Thorne.
MEMORANDUM DECISION
Defendant Adrienne Goeser Gubler appeals her jury convictions for identity fraud, see Utah Code Ann. § 76-6-1102 (2003), and theft,see id. § 76-6-404 (2003), both third degree felonies. On appeal, Defendant claims prosecutorial misconduct based on the prosecutor's cross-examination of her and the alleged introduction of new lines of argument during the rebuttal portion of the prosecutor's closing argument. We affirm.
In January 2004, Defendant drove to a bank window in St. George, Utah with her companion, Robert Dunn, in the passenger seat. Defendant handed the teller a check signed by Robert Dunn for $3850. The check was written to Elizabeth Dunn as payee against the closed business account of her husband, Robert Dunn. Defendant also presented a deposit slip, allegedly with Elizabeth Dunn's signature, requesting $2500 back in cash. The teller gave Defendant the money.
Three days later, a similar transaction occurred. This time Defendant went into a different branch of the bank and presented a check written to Elizabeth Dunn for $2500, signed by Robert Dunn, with a deposit slip requesting $1000 back in cash. Without asking for identification to verify that she was Elizabeth Dunn, the teller handed Defendant the money. Ultimately, the bank lost $6348 as a result of the two fraudulent transactions drawn against Robert Dunn's closed bank account.
In police interviews, Defendant admitted in two separate written statements that she had helped Robert Dunn cash checks, but claimed she did not know that the checks were fraudulent. However, the check amounts Defendant referred to in both of her statements did not match the transaction amounts known to the police. The police were aware of only two completed transactions involving checks for $3850 and $2500. Neither of Defendant's statements referenced these amounts.
Defendant testified that she believed the checks were legitimate and that she did not intend to perpetrate a fraud. During the prosecutor's closing arguments, he reserved the majority of his time for rebuttal, where he focused on evidence indicating that Defendant had the requisite mental state to be found guilty of the crimes charged. A jury found Defendant guilty. Defendant appeals her conviction.
A trial court will not be reversed "based on prosecutorial misconduct absent an abuse of discretion. This standard is met only if the error is substantial and prejudicial such that there is a reasonable likelihood that in its absence, there would have been a more favorable result for the defendant." State v. Pritchett, 2003 UT 24, ¶ 10, 69 P.3d 1278 (internal quotation marks omitted).
"Generally, it is error to ask an accused a question that implies the existence of a prejudicial fact unless the prosecution can prove the existence of that fact. Otherwise, the only limit on such a line of questioning would be the prosecutor's imagination." State v. Emmett, 839 P.2d 781, 786-87 (Utah 1992) (footnote omitted). Defendant does not refer this court to specific objectionable cross-examination questions; rather, she refers to five pages of the cross-examination transcript. These pages demonstrate that when the prosecutor was questioning Defendant regarding checks for the amounts written in her statements, he was exploring inconsistencies among the facts known to police, Defendant's written statements, and her trial testimony. The prosecutor's questions were not improper because Defendant herself had provided the information about which the prosecutor was questioning her. The prosecutor was therefore entitled to question Defendant about her written statements. Further, the prosecutor may legitimately have been trying to cast doubt on her truthfulness by suggesting that a check for a relatively small amount of money would never result in a bank teller returning a stack of cash worth $2500 or $1000.
Defendant claims that the prosecutor committed misconduct during closing argument by introducing new lines of argument during the rebuttal phase, which were insulated from a response by Defendant. According to rule 17 of the Utah Rules of Criminal Procedure, "the prosecution shall open the argument, the defense shall follow and the prosecution may close by responding to the defense argument." Utah R. Crim. P. 17(g)(7). In interpreting this statute, "the Utah Supreme Court `has repeatedly observed that counsel for each side has considerable latitude in closing arguments and may discuss fully his or her viewpoint of the evidence and the deductions arising therefrom.'" State v. Larsen, 2005 UT App 201, ¶ 9, 113 P.3d 998 (alteration and internal quotation marks omitted) (quoting State v. Bakalov, 1999 UT 45, ¶ 56, 979 P.2d 799).
The closing statements Defendant challenges as improper were offered by the prosecutor to rebut Defendant's primary line of defense, which was that Defendant did not have the mental state required for conviction. During closing argument, the defense attorney focused on Defendant's mental state by arguing, "But I submit that if you take a look at what happened on the 23rd, there was no reason for her to believe that she was . . . facilitating a fraud." Later he said, "She had no reason to know that that account was closed."
In rebuttal, the prosecutor also stressed the issue of Defendant's mental state. The prosecutor, in effect, argued that Defendant had the requisite mental state because she pretended to be Elizabeth Dunn to obtain a large amount of cash, and admitted in her written statements to helping Robert Dunn cash checks. These arguments were meant to persuade the jury that Defendant had the necessary mens rea to be guilty of the crimes charged. Therefore, the prosecutor did not exceed the legitimate scope of rebuttal argument.
Defendant also challenges the prosecutor's reference to the fact that the last check written on the account before it was closed was check number 1132, while one of the checks at issue during trial was check number 1190. Defendant claims that the prosecutor used these facts to improperly advance the theory that Defendant may have had information about approximately sixty fraudulent checks.
The prosecutor's rebuttal argument regarding the sequence of check numbers was somewhat oblique, stating in conclusion, "Or did she willingly disregard all the truth that was out there?" The prosecutor's statements, however, did not constitute prosecutorial misconduct because Defendant's comment raised only the possibility that the additional amounts were within the missing check numbers. In addition, the prosecutor's statement focused on Defendant's mental state, similar to many of the prosecutor's statements throughout rebuttal.
In sum, we affirm Defendant's convictions, concluding that no prosecutorial misconduct occurred.
WE CONCUR: Russell W. Bench, Presiding Judge and William A. Thorne Jr., Judge.