CHRISTIANSEN, Judge:
¶ 1 Defendant Richard Donald Cooper challenges his jury convictions for four counts of filing a wrongful lien, see Utah Code Ann. § 76-6-503.5 (2008).
¶ 2 In 1997, Mary and Richard Pace purchased a sixty-three percent property interest at a tax sale. Due to complications that arose in asserting their rights to the property, the Paces hired attorney Rodney Rivers, who conducted a title search that revealed several people with a potential interest in the property. Rivers then filed a quiet title action against Defendant; Defendant's son, Jerry Cooper; and other potential owners. Ultimately, Judge Lynn W. Davis entered a default judgment against Defendant, which resulted in the Paces establishing their interest in the property in their quiet title action.
¶ 3 On November 15, 2004, Defendant recorded a document titled "Administrative Judgment" with the Utah County Recorder's Office. The Administrative Judgment stated, in part, that the Paces, Rivers, and Judge Davis were jointly and severally liable to Defendant's son, Jerry Cooper, in the amount of $4.2 million. On July 21, 2005, Judge Anthony Quinn entered a civil judgment declaring this Administrative Judgment a wrongful lien as it related to Judge Davis.
¶ 4 On January 24, 2007, Defendant signed and recorded another document titled "Consent Judgment." The Consent Judgment referred to the Administrative Judgment and purported to enable Defendant to collect certain liability, debt, or obligations pursuant to the Administrative Judgment. The Consent Judgment listed the Paces, Rivers, and Judge Davis as debtors and included an address for each party. The Consent Judgment also stated that the Paces, Rivers, and Judge Davis were jointly and severally liable to Defendant in the amount of $4.2 million, and that if this amount was not paid within ninety days, it would "become a `commercial lien.'"
¶ 5 Subsequently, the State charged Defendant with four counts of filing a wrongful lien for recording the Consent Judgment.
¶ 6 Defendant asserts that the trial court violated rules 201 and 403 of the Utah Rules of Evidence by taking judicial notice of Judge Quinn's 2005 civil determination that the Administrative Judgment was a wrongful lien. "We review the [trial] court's judicial notice of prior adjudicated facts under Rule 201 of the Utah Rules of Evidence for abuse of discretion." In re J.B., 2002 UT App 267, ¶ 14, 53 P.3d 958. "[T]he ordinary [rule] 403 analysis . . . favors admissibility and the appraisal of probative versus prejudicial value of evidence is entrusted to the discretion of the trial judge. That discretion will not be upset on appeal absent manifest error." State v. Moore, 788 P.2d 525, 527 (Utah
¶ 7 Defendant also argues that the trial court abused its discretion in denying his motion for a mistrial based on Judge Davis's testimony.
State v. Wach, 2001 UT 35, ¶ 45, 24 P.3d 948 (omission in original) (citations omitted); see also id. ¶ 46 (affirming the trial court's denial of the defendant's motion for a mistrial because the victim's improper remark "did not render [the defendant's] trial so unfair that the trial court was `plainly wrong'").
¶ 8 To establish that Defendant filed a wrongful lien, the State was required to prove beyond a reasonable doubt that Defendant "knowingly ma[de], utter[ed], record[ed], or file[d
¶ 9 During the State's presentation of its case-in-chief, and over Defendant's objection, the trial court took judicial notice of Judge Quinn's prior determination that the Administrative Judgment recorded in 2004 was a wrongful lien:
¶ 11 First, the Consent Judgment's language clearly "purports to create a lien." See id. The Consent Judgment lists the names and addresses for the Paces, Rivers, and Judge Davis and labels them as debtors. It then states that the debtors have given Defendant "proxy power of attorney to act for [them]" and that the Administrative Judgment, "incorporated by reference herein, be ratified, confirmed, and incorporated in this Consent Judgment." Other portions of the Consent Judgment state that the debtors are "severally & jointly" obligated to perform and to pay "all liability, debt or obligations incurred under Administrative Judgment." The Consent Judgment provides that the debtors "agree that $4,200,000.00 constitutes the total amount due and owing, by [d]ebtors," and "that the Statement and Demand," which is described as part of the Administrative Judgment, "is a `true bill in commerce' which by operation of law provides 90 days to discharge the `account receivable' or the account become[s] a `commercial lien.'" There is no dispute that the ninety days had expired. Throughout the Consent Judgment, there are additional references to the lien status of the document, including that the parties "agree that after 90 days an unpaid debt due to the [Defendant], may be assigned giving a new owner a Right of Lien to execute a Lien Hold Claim against Debtors' property, holding claim until the 1st day of January, 2105."
¶ 12 The Consent Judgment also specifies that a
The Consent Judgment allows "the authorized Lien Holder [to] open any administrative procedure for further remedy or relief until the attainment of the ends of justice have been satisfied." And, finally, the Consent Judgment states that "the administrative admitted facts in this Consent Judgment are not subject to reconsideration in any action in Law, Commerce, or otherwise, and [that] this Consent Judgment shall be recorded for a perpetual memory and testimony." Thus, the document itself clearly purports to create a commercial lien.
¶ 13 Second, additional evidence in the form of Judge Davis's testimony was presented about the subject of the judicial notice. Specifically, he testified that Judge Quinn had determined that the Administrative Judgment was a wrongful lien against Judge Davis.
¶ 15 Therefore, even if the trial court violated the rules of evidence by taking judicial notice, that evidence was merely cumulative of what could be determined by the express language of the Consent Judgment and Judge Davis's testimony. From the face of the Consent Judgment alone, the evidence is overwhelming that Defendant purported to create a lien on the victims' assets. Consequently, we conclude that the trial court properly submitted the question of whether the Consent Judgment was a "lien" to the jury, and Defendant did not suffer prejudice from any mistake regarding the judicial notice because there is no reasonable likelihood that the result would have been different in the absence of the judicial notice. Thus, any error by the trial court in taking judicial notice of Judge Quinn's conclusion about the Administrative Judgment was harmless.
¶ 16 "[A] district judge is in an advantaged position to determine the impact of courtroom events on the total proceedings. . . ." State v. Allen, 2005 UT 11, ¶ 39, 108 P.3d 730, cert. denied, 546 U.S. 832, 126 S.Ct. 60, 163 L.Ed.2d 85 (2005). Therefore, "once a district court has exercised its discretion and denied a motion for a mistrial, we will not reverse the court's decision unless it `is plainly wrong in that the incident so likely influenced the jury that the defendant cannot be said to have had a fair trial.'" Id. (citation omitted).
¶ 17 The parties stipulated before trial that, because Judge Davis was not designated as an expert witness, he could "not make reference to his legal opinion." During the State's direct examination of Judge Davis, the following exchanges occurred:
¶ 18 Defendant did not object to these questions at the time they were asked, nor did he move to strike Judge Davis's answers. Moreover, during Defendant's cross-examination of Judge Davis, Defendant elicited additional testimony, possibly more damaging than the testimony given during the direct examination, about Judge Davis's view of the effectiveness of the Consent Judgment. For example,
¶ 19 Although defense counsel elicited the vast majority of the challenged testimony and did not move to strike Judge Davis's responses, the following day he moved for a mistrial on the ground that Judge Davis's testimony gave "incorrect statements of the law." Specifically, Defendant contended that because of Judge Davis's position as a judge his statement that "a judgment [from a district court] is a lien" that clouded his title "will have undue influence and great weight on the trial and would prejudice" Defendant. Additionally, Defendant argued that "Judge Davis volunteered all this information and he talked about them being liens, clouding his title as a matter of law during direct and cross-examination,"
¶ 20 On appeal, Defendant argues that the trial court should have granted a mistrial because "Judge Davis's testimony was so prejudicial, given the totality of the evidence and the materiality of the testimony, that [Defendant] was denied a fair trial." Although Defendant now argues that the State intentionally elicited the statements, this was not Defendant's contention before the trial court. There, he argued that Judge Davis had volunteered information that was unresponsive to the State's questions.
¶ 21 "A review of our case law amply reveals that a mistrial is not required where an improper statement is not intentionally elicited, is made in passing, and is relatively innocuous in light of all the testimony presented." State v. Allen, 2005 UT 11, ¶ 40, 108 P.3d 730, cert. denied, 546 U.S. 832, 126 S.Ct. 60, 163 L.Ed.2d 85 (2005). While we agree that the testimony was unhelpful to the defense, we are not convinced that the State is at fault for its admission because the State did not intentionally elicit the testimony. Additionally, given that the jury was able to review the Consent Judgment, Judge Davis's testimony was "relatively innocuous in light of all the [evidence] presented."
¶ 22 Furthermore, because Defendant elicited the most damaging information, he invited any error. When defense counsel elicits the improper testimony, "the alleged error was invited by defendant's own counsel, and thus defendant is in no position to request a mistrial." State v. Barney, 681 P.2d 1230, 1231 (Utah 1984); see also State v. Dominguez, 2003 UT App 158, ¶ 33, 72 P.3d 127 ("Because the testimony complained of was initially elicited by defense counsel's cross-examination of [the witness], any error was invited. We have held repeatedly that on appeal, a party cannot take advantage of an error committed at trial when that party led the trial court into committing the error." (internal quotation marks omitted)). Unlike the direct examination during which Judge Davis's answers were unresponsive to the questions asked, on cross-examination defense counsel directly elicited the nature of Judge Davis's responses. Under the circumstances, Defendant cannot be heard to complain of the error he invited.
¶ 23 Defendant's claim that the trial court violated the rules of evidence by taking judicial notice fails because he cannot establish that he was prejudiced by any error. Additionally, the trial court did not abuse its discretion in denying Defendant's motion for a mistrial. Thus, we affirm.
¶ 24 WE CONCUR: JAMES Z. DAVIS, Presiding Judge, and CAROLYN B. McHUGH, Associate Presiding Judge.
Utah Code Ann. § 38-9-1(6) (2005) (current version at id. § 38-9-1(6) (Supp.2010)); see also Utah Code Ann. § 76-6-503.5(1)(b) (2008) ("`Lien' means: . . . any instrument or document described in Subsection 38-9-1(6). . . ."). Defendant does not object to the entry of these jury instructions defining parts of a wrongful lien conviction.
