Date: 03-13-2014

Case Style: State of Utah v. Milan Otkovic

Case Number: 2014 UT App 58

Judge: Davis

Court: The Utah Court of Appeals on appeal from the Third District Court, Salt Lake Department

Plaintiff's Attorney: Sean D. Reyes and Christopher D. Ballard, Attorneys for Appellee

Defendant's Attorney: Elizabeth Hunt, Attorney for Appellant

Description: ¶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.

Outcome: See above

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