Appeals court hears challenge to excited‑utterance, other‑acts and officer testimony in State v. Mike

The Utah Court of Appeals heard argument in State v. Mike at Southern Utah University over multiple evidentiary claims, including whether a neighbor’s statements were admissible as an excited utterance, whether a police officer’s lay testimony and a post‑arrest hypothetical constituted improper propensity or other‑acts evidence, and whether jury unanimity or instructions about where intoxication occurred could have affected the verdict.

Appellant counsel Benjamin Miller argued the neighbor’s account—elicited after the neighbor admitted she waited to observe and then locked the door before asking questions—was not covered by the excited‑utterance exception because the neighbor’s testimony reflected a question‑and‑answer exchange after a short pause and in a familiar setting. “If she sits down and the door is locked and then answers, that starts to kick in reflective thought,” Miller told the panel, asserting the statements had been admitted improperly and were prejudicial.

Miller also challenged the admission of an officer’s lay testimony recounting a defendant’s in‑car hypothetical about assaulting an officer. Defense counsel said that testimony was used in closing to present the defendant as a violent person and therefore functioned as impermissible character or propensity evidence under Rule 404(b). The prosecutor argued the statement was probative of intoxication and that the officer’s testimony was admissible as direct evidence of the defendant’s condition and state of mind; the state additionally argued that any trial‑court evidentiary rulings should be reviewed for abuse of discretion and that the record contains other evidence of intoxication.

Judges repeatedly pressed both sides about practical consequences: whether a limiting instruction would have cured any 404(b) risk, how a prosecutor’s closing argument interacted with the evidentiary record, and whether jurors might have been uncertain whether the alleged intoxication occurred in the home or in the police car (the parties debated whether a police car is legally a “private place” for certain elements and whether that uncertainty could create a unanimity problem). The defense pointed to a split verdict on related charges and to the medical testimony that could not definitively rule in favor of the state’s account, arguing the cumulative effect of the evidentiary rulings was prejudicial.

The court took the appeal under advisement and will issue a written opinion resolving the claims.