State v. Maama , 795 Utah Adv. Rep. 24 ( 2015 )

2015 UT App 235THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
MESIA SII MAAMA,
Defendant and Appellant.
Opinion
No. 20131066-CA
Filed September 11, 2015
Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 121904204
John B. Plimpton and Wojciech S. Nitecki, Attorneys
for Appellant
Sean D. Reyes and Ryan D. Tenney, Attorneys
for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.
TOOMEY, Judge:
¶1 Mesia Sii Maama appeals from her convictions of assault,
a class B misdemeanor, and riot, a third degree felony.1 We
affirm.
1. Mesia was tried jointly with two other defendants. Each
codefendant filed a separate appeal, see State v. Maama, 2015 UT
App 234; State v. Pham, 2015 UT App 233.
State v. Maama
BACKGROUND
¶2 Late one night in March 2012, Mesia, her brother Semisi
Maama, a female friend (Friend), and Anh Tuam Pham, whom
Mesia had been dating, drove Friend’s car to a fast-food
restaurant.2 Mesia and Friend went inside the restaurant, and
Semisi and Pham stayed outside in the parking lot drinking
alcohol and listening to music. Meanwhile, two parking stalls
away, a man (Father) and his eleven-year-old son (Child) sat in
their car waiting for Child’s mother (Mother) to return.
¶3 Minutes later, Pham and Semisi approached Father’s
vehicle. Pham opened Father’s door, pointed a gun at him, and
ordered him to give them money. Father could not comply,
because Mother had his wallet inside the restaurant, and Pham
pistol-whipped him. Father told the men that his son was
present and pleaded with Semisi for sympathy, but Semisi
repeated Pham’s demands for money. Child offered the men his
allowance money, and Pham took it from him. Angered, Father
ripped the gun out of Pham’s hand, got out of the car, knocked
Semisi to the ground, and began fighting with Pham. Eventually,
Pham and Semisi ‚backed off‛ of Father.
¶4 Mesia emerged from the restaurant to see Semisi trying to
stand up and bleeding, and she surmised that he and Pham had
been in an altercation with Father, who appeared to be a ‚big
guy.‛ Deciding it would be prudent to leave, Mesia backed
Friend’s car out of the parking stall and reparked it behind
2. ‚In reviewing a jury verdict, we view the evidence and all
reasonable inferences drawn therefrom in a light most favorable
to the verdict.‛ See State v. Dunn, 850 P.2d 1201, 1205 (Utah 1993).
‚We recite the facts accordingly and present conflicting evidence
only to the extent necessary to understand the issues raised on
appeal.‛ Id. at 1205–06 (citation omitted).
20131066-CA 2 2015 UT App 235State v. Maama
Father’s vehicle. Pham helped Semisi get in the back seat and
then hopped in the front passenger’s seat. Mesia ran back to the
restaurant to shout ‚let’s go‛ to Friend and returned to the
driver’s side of the car. Instead of driving off, Mesia, Pham, and
Semisi waited for Friend to come out of the restaurant.
¶5 Believing that the fight was ‚over‛ and the situation had
‚defused,‛ Father waved the gun and yelled, ‚Why are you guys
trying to rob me?‛ This prompted Mesia to take the situation
‚into *her+ own hands.‛ She approached Mother, who had
recently returned to the parking lot, and asked her to get the gun
from Father, promising to leave if Mother returned the gun.
When Mother refused, Mesia approached Father, saying ‚Please,
give me the gun.‛ Father pushed Mesia and told her to get away
from him.
¶6 When Father turned his attention to Semisi and Pham,
Mesia punched Father in the face. Still holding the gun, Father
reached for Mesia but slipped, and Pham and Semisi ‚jumped‛
him. Father tried to protect himself as Mesia, Pham, and Semisi
hit and kicked him on the ground. Mesia ultimately wrestled the
gun from Father’s hand. Soon after, Friend came out of the
restaurant, and the four companions got into the car and drove
away.
¶7 Mesia was charged with aggravated assault and riot.
Semisi and Pham also faced charges stemming from these
events, and the three codefendants were tried together before the
same jury in May 2013.
¶8 At trial, the witnesses gave conflicting accounts regarding
Father’s use of the gun. Although Mother testified Father was
pointing the gun ‚up,‛ not ‚at anybody,‛ Child did not recall
whether Father pointed the gun at anyone. He also testified that
Father had his arms up and ‚wasn’t doing anything with the
gun‛ while Semisi and Pham sat in the car.
20131066-CA 3 2015 UT App 235State v. Maama
¶9 In contrast, Mesia, Semisi, and Pham testified that Father
pointed the gun at them. Mesia testified that Father pulled the
trigger. While testifying in support of her theory that she acted
in self-defense when she hit Father, Mesia said she did not know
Semisi and Pham had a gun or had planned a robbery. She
testified that she first noticed the gun in Father’s hand while she,
Semisi, and Pham were waiting for Friend. According to Mesia,
the gun’s slide was not open and she saw Father pull the trigger
twice but it did not fire. After that, she testified that Father
pulled back the slide, which Mesia believed signified Father
loading the gun.3 Semisi and Pham similarly testified that Father
pointed the gun in their direction, but Semisi testified that Father
did not pull the trigger.
¶10 Father testified on direct examination that he
‚remember*ed+ looking at the gun and the chamber was open‛
so ‚it wasn’t able to fire.‛ He also testified that he ‚could have‛
pointed the gun at Pham and Semisi, but he ‚never pointed it at
[Mesia]‛—‚Not once.‛ When asked whether he pulled the
trigger, Father answered, ‚Um, I—I—I believe I did.‛ The
prosecutor responded, ‚You did?‛ Father replied, ‚I don’t know
if I pulled the trigger. I just had it in my hand, but I was shaking
it. You know what I mean? I don’t [think I] deliberately . . .
pulled the trigger.‛ To clarify, the prosecutor asked, ‚So it was
just in your hand shaking?‛ Father answered, ‚Yes.‛ He later
testified, ‚I wasn’t trying to fire at nobody,‛ ‚I just wanted to get
rid of the gun.‛
¶11 After the codefendants rested their cases, the prosecutor
recalled Father to provide rebuttal testimony. Contrary to his
previous testimony, Father denied pointing the gun at the
codefendants and likewise denied pulling the trigger. Semisi’s
3. Pham also testified that the gun was his but that he does not
carry it loaded and a person has to pull the slide back to load it.
20131066-CA 4 2015 UT App 235State v. Maama
counsel objected to Father’s rebuttal examination on the basis
that ‚*r+ehashing *Father’s+ direct *testimony+ is not rebuttal.‛
The court overruled this objection, and the prosecutor continued.
¶12 When Mesia’s counsel began cross-examining Father, the
following exchange, with our emphasis, ensued:
*Mesia’s counsel+: *Father+, during your direct I
have a habit of taking very detailed notes.
[Father]: All you guys do.
*Mesia’s counsel+: Well, it depends. This is what I
have when you were questioned about pointing a
gun you said I don’t remember, could have. Is that
still your testimony today?
[Father]: Yeah. Yeah.
*Mesia’s counsel+: Could have?
[Father]: Yes.
*Mesia’s counsel+: And then you testified that the
chamber wouldn’t even fire which is similar to
what you’re saying today, correct?
[Father]: Yeah. I remember looking at my gun in
the right hand, you know, everything is going on
‘cause I was up like this. And I just remember kind
of glancing at it and seeing that the slide was back
and it was open.
*Mesia’s counsel+: Okay. And then the question—
there was a question to you on the first day [of
trial] about pulling the trigger and you testified I
believe I did.
[Father]: Yeah, I—
*Mesia’s counsel+: Do you remember saying that?
20131066-CA 5 2015 UT App 235State v. Maama
THE COURT: See my notes say “don’t know.” So
we’re not supposed to be relying so heavily on notes. We
need to let—
*Mesia’s counsel+: Well, I get to question him about
it. I mean—
THE COURT: Well, okay. But don’t make it—
*Mesia’s counsel+: He just said yes he believed he
did. I mean—
*Father+: But I don’t believe I pulled trigger. I said I
could have because if it’s in my hand and I’m
shaking—
*Mesia’s counsel]: So you could have pulled the
trigger?
*Father+: Yeah, but I wasn’t pointing the gun at that
time, I was like this.
*Mesia’s counsel+: Okay.
*Father+: So I wasn’t—I never pointed the gun
directly at anyone’s face or anything like that.
¶13 After the codefendants finished cross-examining Father,
the State rested its case. When the court excused the jury, Mesia
moved for a mistrial,4 arguing it was ‚inappropriate‛ for the
judge to ‚interject with *her+ notes and make a comment‛ during
Father’s rebuttal examination. The interruption stopped Father
from ‚answering *the question+ in *Mesia’s+ favor‛ and showed
‚bias‛ by ‚ma*king+ it clear to the jury that *the judge did not+
believe [Mesia’s+ witness.‛ The judge responded, ‚Well, then
again, it’s my job to make sure somebody doesn’t misrepresent
the evidence . . . he had said don’t know before.‛ The prosecutor
4. Semisi and Pham joined in the motion.
20131066-CA 6 2015 UT App 235State v. Maama
responded that the judge ‚did the appropriate thing to make
sure that what came out was accurate‛ but the jurors should be
instructed that any of the judge’s rulings should not affect their
judgment. Mesia’s counsel countered that the judge’s statement
‚wasn’t a ruling, it was an interjection.‛ The court denied the
motion but gave a curative instruction.
¶14 When the jury returned, the trial court judge gave the
following admonition, again with our emphasis:
As you heard earlier today, we had our little
discussion about notes and this is why you
shouldn’t rely too heavily on notes because I’m not
so confident that anybody is right or wrong. Luckily
in this situation you have the witness on the stand who
clarified himself and it’s up to you to remember his
testimony the way you remember it and never be
overconfident in your notes. Okay.
¶15 The jury evidently rejected Mesia’s claim of self-defense.
Although it acquitted her of aggravated assault, the jury
returned a guilty verdict on riot and on the lesser included
offense of assault. Mesia appeals.
ISSUES ON APPEAL
¶16 Mesia raises four issues on appeal. First, she contends that
the trial court denied her a fair trial by improperly commenting
on the evidence regarding Father’s use of the gun. Second, she
contends that the trial court committed reversible error in
issuing a flawed curative instruction, in failing to instruct the
jury on the State’s burden of proof with respect to self-defense,
and in failing to instruct the jury to consider self-defense in
relation to Mesia. Third, she contends that the evidence was
insufficient to support her conviction of assault because no
reasonable jury could conclude beyond a reasonable doubt that
20131066-CA 7 2015 UT App 235State v. Maama
she did not act in self-defense. Finally, she contends that the
cumulative effect of the trial court’s errors requires reversal.
ANALYSIS
I. Improper Comment During Father’s Rebuttal Testimony
¶17 Mesia argues the trial court should have granted her
motion for a mistrial on the ground that the court improperly
commented on the evidence concerning whether Father pulled
the gun’s trigger. Mesia points to the dialogue during Father’s
rebuttal testimony when the judge ‚sua sponte interrupted
[Mesia’s] cross-examination of [Father] . . . to say that, according
to her notes, *Father+ testified during the prosecution’s case-in-
chief that he did not know whether he pulled the trigger‛ of the
gun. In Mesia’s view, the judge’s comment told the jury what the
evidence was, and amounted to ‚an unsolicited, gratuitous,
blatant comment on the evidence that interfered with Mesia’s
cross-examination.‛ Furthermore, Mesia asserts that the judge’s
comment was prejudicial because it ‚likely led the jury to
disbelieve or disregard the compelling evidence that [Father]
pulled the trigger.‛5 Because her ‚entire defense hinged on
whether the jury believed she acted in self-defense,‛ Mesia
asserts there is a reasonable likelihood that whether Father
pulled the trigger was determinative of the guilty verdict.6
5. Mesia does not claim the trial court’s interjection influenced
the jury’s verdict in convicting her of riot; her contention is
limited to the assault conviction.
6. Mesia also contends that the prejudice caused by the judge’s
improper comment ‚was further exacerbated by her use of facial
expressions to express disbelief at certain testimony.‛ Mesia
asserts the improper comment, combined with the judge’s facial
(continued<)
20131066-CA 8 2015 UT App 235State v. Maama
¶18 The State agrees that ‚a judge may not comment on the
underlying substance of a witness’s testimony‛ but contends the
judge’s comment here was ‚more limited, being confined to a
correction about what [Father] had said at trial, rather than
about whether his testimony was actually true or not.‛ The State
argues that ‚what the judge did here was nothing more than try
to prevent one side’s attorney from improperly commenting on
what the testimony had been.‛
¶19 ‚A trial court’s denial of a motion for mistrial will not be
reversed absent an abuse of discretion.‛ State v. Butterfield, 2001
UT 59, ¶ 46, 27 P.3d 1133 (citation and internal quotation marks
omitted). ‚Unless the record clearly shows that the trial court’s
decision is plainly wrong in that the incident so likely influenced
the jury that the defendant cannot be said to have had a fair trial,
we will not find that the court’s decision was an abuse of
(2015 UT App 235State v. Maama
discretion.‛ Id. (citation and internal quotation marks omitted).
In other words, to obtain reversal, the defendant must show that
the challenged incident ‚substantially influenced‛ the verdict. See
id. ¶ 47 (citation and internal quotation marks omitted).7
¶20 Rule 19(f) of the Utah Rules of Criminal Procedure
instructs that ‚*t+he court shall not comment on the evidence in
the case, and if the court refers to any of the evidence, it shall
instruct the jury that they are the exclusive judges of all
questions of fact.‛ ‚In the course of a jury trial, a judge must not
act or speak so as to indicate an opinion either on the credibility
of evidence or on disputed issues of fact.‛ State v. Beck, 2007 UT
60, ¶ 15, 165 P.3d 1225. Likewise, a judge may not ‚purport to
tell the jury either what the evidence is or what the facts are.‛ See
State v. Schoenfeld, 545 P.2d 193, 197 (Utah 1976). ‚This is because
‘*i+t is the sole and exclusive province of the jury to determine
the facts in all criminal cases, whether the evidence offered by
the State is weak or strong, is in conflict or is not controverted.’‛
7. Mesia relies on State v. Beck, 2007 UT 60, 165 P.3d 1225, for her
argument that this issue should be reviewed for correctness,
rather than abuse of discretion. See id. ¶¶ 6–7, 10. She argues ‚a
trial judge is less likely to fairly adjudicate a motion for a mistrial
on the basis of the judge’s own conduct than the conduct of
someone else.‛ But because Mesia’s reliance on Beck is
misplaced, we reject this argument. Although, in Beck, the
supreme court reviewed this court’s application of the law for
correctness, it reviewed a district court’s improper questioning
for whether the court ‚exceeded the range of discretion
permitted by the rules of evidence and case law.‛ Id. ¶ 7. In other
words, the supreme court reviewed the district court’s conduct
for an abuse of discretion. Id. Furthermore, even under a
correctness standard, we would conclude that the judge’s
comments were erroneous, but not prejudicial. See infra ¶¶ 22–
27.
20131066-CA 10 2015 UT App 235State v. Maama
State v. Davis, 2013 UT App 228, ¶ 97, 311 P.3d 538 (alteration in
original) (quoting State v. Green, 6 P.2d 177, 181 (Utah 1931)).
¶21 We agree that the trial court improperly commented on
the evidence in this case. It appears the judge may have believed
that Mesia’s counsel misstated Father’s testimony and stepped in
to assert that her own notes differed from counsel’s. Although
she went on to caution that no one should ‚rely*+ so heavily on
notes,‛ by telling the jury what her own notes indicated, the
judge ‚purport[ed] to tell the jury either what the evidence is or
what the facts are.‛ See Schoenfeld, 545 P.2d at 197. Because the
judge ‚indicate[d] an opinion . . . on disputed issues of fact‛ with
respect to whether Father pulled the trigger, see Beck, 2007 UT 60,
¶ 15, we conclude the interjection constituted an improper
comment on the evidence.
¶22 Furthermore, because counsel did not misstate Father’s
testimony, we are not convinced the interjection merely
corrected counsel’s characterization of what Father said. Father
testified both that he believed he did pull the trigger and that he
did not know whether he did. Counsel merely inquired into the
inconsistency in Father’s testimony. The court was not faced
with a situation in which it needed to prevent counsel from
improperly suggesting what the testimony had been.
Accordingly, given that there was nothing for the court to
correct, the trial court’s interference was unwarranted.
¶23 Nevertheless, the judge’s interjection did not undermine
the overall fairness of the trial. Although the court’s comment
went to whether Father pulled the trigger, what the judge
recalled from her notes was not determinative of whether Mesia
acted in self-defense, and therefore likely did not substantially
influence the jury’s verdict. Mesia claimed she acted in self-
defense when she punched Father. Determining whether Mesia
acted in self-defense hinged on whether she ‚reasonably
believe[d] that force or a threat of force [was] necessary to
20131066-CA 11 2015 UT App 235State v. Maama
defend‛ against another’s ‚imminent use of unlawful force.‛ See
Utah Code Ann. § 76-2-402(1)(a) (LexisNexis 2012). At the point
Mesia punched Father, Father’s fight with Semisi and Pham was
already ‚over.‛ Yet, Mesia reengaged with Mother and Father to
request that Father return the gun. Although there is conflicting
evidence of whether Father pulled the trigger or pointed the gun
at Mesia, Semisi, and Pham, the jurors had to decide whether the
State met its burden to disprove that Mesia reasonably believed
force was necessary to defend herself and the others. They had
to consider the nature and immediacy of Father’s threat. See id.
§ 76-2-402(5)(a)–(b). Given the circumstances, we believe the
factual dispute about whether Father pulled the gun’s trigger
was only a small part of the jurors’ resolution of Mesia’s self-
defense claim. Thus, without relying on a finding that Father did
or did not pull the trigger, the jurors could have concluded
Mesia simply acted to get the gun back, not to protect herself or
others.
¶24 Our conclusion is bolstered by the fact that the conflicting
evidence over whether Father pulled the trigger did not
permeate the trial or the parties’ closing statements. The trial
court’s interjection was an isolated comment made during a
three-day trial that yielded approximately 512 pages of
transcribed testimony and argument. The prosecutor’s closing
statements focused on whether Father pointed the gun at anyone
instead of whether he pulled the trigger. The prosecutor alluded
to the interjection only once, and when he noted that Father had
‚clarified himself,‛ the prosecutor reminded the jurors it was
their duty to decide the facts. For instance, the prosecutor argued
as follows:
In his words [Father] said the situation was
deescalated, they’re gone from him they’re in the
car. He never aimed it or pointed it at anyone. And
again, those—this is where you’re the fact finder as
to what you remember. There was some
20131066-CA 12 2015 UT App 235State v. Maama
clarification on the stand but at least from my
understanding and I could be wrong, just as
anybody else could be, he has the gun, he’s
shaking. But he never testified that he raised it up
and pointed it at anyone or deliberately pulled the
trigger at anyone. He could have had his finger on
the trigger. But you’re the fact finders and I’m not
going to beat that horse.
Although the prosecutor argued the facts in the light most
favorable to the State’s case (as is expected), he did not unduly
reiterate or emphasize the judge’s interjection about whether
Father pulled the trigger.
¶25 Only Semisi’s counsel expressly mentioned the judge’s
interjection during closing arguments and, in doing so, argued
for an interpretation of Father’s testimony that favored Mesia.
Specifically:
[t]he situation is deescalated. Mesia comes out, sees
the gun being—trigger being pulled. [Father] . . .
admitted that he had pulled the trigger at least
once. When the judge said something, *Mesia’s
counsel] asked him, he was answering yes, I did,
the judge interrupted him and then he changed it
back to well, I believe I may have. I ma[y] have. He
softened it because he’s feeling like that was a bad
act. He admitted in direct and then softens it with
a—well, I think I maybe. Maybe.
Thus, during closing arguments the trial court’s comment was
mentioned only once—to emphasize that Father prevaricated in
his testimony concerning whether he pulled the trigger. Because
the parties did not treat the issue as pivotal, and because in any
event the jury likely understood that Father had contradicted
himself on this point, we do not believe that the court’s
interjection ‚substantially influenced‛ the verdict. See State v.
20131066-CA 13 2015 UT App 235State v. Maama
Butterfield, 2001 UT 59, ¶ 47, 27 P.3d 1133 (emphasis omitted)
(citation and internal quotation marks omitted).
¶26 In sum, although commenting on the evidence was
improper, we conclude the trial court’s interjection did not likely
influence the jury and thus did not render the trial unfair.
Accordingly, we hold that the denial of Mesia’s motion for
mistrial was not ‚plainly wrong‛ and thus not an abuse of the
court’s discretion.
II. Jury Instructions
¶27 Mesia next contends that the jury instructions given by
the trial court were flawed in three ways. Mesia first argues that
the court erred in giving the curative instruction because the
instruction included an improper comment on the evidence.
Second, Mesia contends the jury instructions regarding self-
defense were inadequate because the trial court failed to instruct
the jury on the State’s burden to disprove beyond a reasonable
doubt that Mesia acted in self-defense. Third, Mesia contends the
trial court did not clearly instruct the jury to consider the self-
defense jury instructions in connection with Mesia’s defense.
¶28 Mesia did not preserve her challenge to the jury
instructions but seeks our review under the plain-error and
ineffective-assistance-of-counsel exceptions to the preservation
rule. To establish plain error, an appellant must show ‚(i) *a+n
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful, i.e., absent the error, there is
a reasonable likelihood of a more favorable outcome for the
appellant, or phrased differently, our confidence in the verdict is
undermined.‛ State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993).
To demonstrate ineffective assistance of counsel, an appellant
must show (i) that trial counsel’s ‚performance was deficient‛
and (ii) that ‚the deficient performance prejudiced the defense.‛
Strickland v. Washington, 466 U.S. 668, 687 (1984). Under both the
plain-error analysis and the ineffective-assistance-of-counsel
20131066-CA 14 2015 UT App 235State v. Maama
analysis, Mesia must demonstrate that any purported error
prejudiced her defense. See Dunn, 850 P.2d at 1225.
¶29 Jury instructions require no particular form so long as
they accurately convey the law. See State v. Marchet, 2009 UT
App 262, ¶ 23, 219 P.3d 75. ‚[I]f taken as a whole they fairly
instruct the jury on the law applicable to the case, the fact that
one of the instructions, standing alone, is not as accurate as it
might have been is not reversible error.‛ State v. Davis, 2013 UT
App 228, ¶ 104, 311 P.3d 538 (citation and internal quotation
marks omitted). Furthermore, ‚*w+e review challenges to jury
instructions under a correctness standard.‛ Id. ¶ 15 (citation and
internal quotation marks omitted).
A. Curative Instruction
¶30 Mesia contends the trial court improperly commented on
the evidence a second time when the court issued an admonition
intended to cure the prejudice created by the court’s interjection
regarding Father’s testimony about his handling of the gun. The
court told the jury that ‚*l+uckily in this situation you have the
witness on the stand who clarified himself.‛ This statement,
Mesia asserts, ‚vouched for the credibility‛ and accuracy of the
answer Father gave after the judge interrupted him: ‚I don’t
believe I pulled trigger. I said I could have . . . .‛
¶31 We conclude that the curative instruction given by the
court in response to Mesia’s counsel’s objection to the court’s
interjection was not prejudicial when viewed in context and with
the other instructions. Mesia takes issue with the isolated
language that Father ‚clarified himself,‛ but the curative
instruction also included language reminding the jurors it was
their responsibility to remember Father’s testimony, expressing
doubt regarding the accuracy of any notes about his testimony,
and cautioning them not to ‚rely too heavily on notes.‛ This
instruction as a whole emphasized the jurors’ duty to depend on
their own memories of the testimony presented at trial.
20131066-CA 15 2015 UT App 235State v. Maama
¶32 In addition, other instructions informed the jury that
‚[d]eciding what the facts are is your job, not *the judge’s+.‛
Instruction 4 told the jury that it must ‚decide the factual
issues,‛ i.e., issues ‚relate*d+ to what did, or did not, happen in
this case.‛ Further, the court instructed the jury, ‚Neither the
lawyers nor I decide the case. That is your role. Do not be
influenced by what you think our opinions might be. Make your
decision based on the law given in my instructions and on the
evidence presented in court.‛ Instruction 15 focused on judicial
neutrality, stating, ‚As the judge, I am neutral. If I have said or
done anything that makes you think I favor one side or another,
that was not my intention. Do not interpret anything I have said
or done as indicating that I have any particular view of the
evidence or the decision you should reach.‛ Given these other
jury instructions, we are not convinced that the curative
instruction’s isolated statement that Father ‚clarified himself‛ on
the stand created a reasonable likelihood of a different result.
¶33 In short, even assuming there was error in the curative
instruction, Mesia has not demonstrated she was prejudiced by
it. Accordingly, we conclude her claims of plain error and
ineffective assistance of counsel based on the curative instruction
fail.
B. Instruction Regarding the State’s Burden of Proof
¶34 Mesia asserts that the relevant jury instruction,
Instruction 57, did not adequately explain to the jury the State’s
burden to disprove self-defense beyond a reasonable doubt.
Specifically, Mesia argues that the instruction asked the jury to
determine the threshold issue of whether self-defense had been
raised and that this may have confused the jury about whether
self-defense applied to the charges against her. We are not
convinced.
¶35 Utah law requires the State ‚to disprove the affirmative
proposition of self-defense, not just prove guilt, beyond a
20131066-CA 16 2015 UT App 235State v. Maama
reasonable doubt.‛ State v. Garcia, 2001 UT App 19, ¶ 16, 18 P.3d
1123. ‚When the defendant has reached the threshold to merit
self-defense instructions,‛ trial courts must issue special jury
instructions that ‚clearly communicate to the jury what the
burden of proof is and who carries the burden.‛ Id. Accordingly,
‚*t+rial courts should separately instruct each jury clearly that
the State must disprove self-defense, and other affirmative
defenses, beyond a reasonable doubt.‛ Id.
¶36 Reading the instruction as a whole, we are not persuaded
Mesia has demonstrated that Instruction 57 inadequately
instructed the jury on the law applicable to the case. The
instruction reads,
[T]he laws of Utah do not require a defendant to
establish self-defense by a preponderance or
greater weight of the evidence. Once the issue of self-
defense is raised, whether by the prosecution’s
witnesses or those of the defense, the prosecution
has the burden to prove beyond a reasonable doubt
that the act was not done in self-defense. The
defendant has no particular burden of proof but is
entitled to be found not guilty if there is any basis
in the evidence from either side sufficient to create
a reasonable doubt as to whether he acted in self-
defense.
(Emphasis added.) Mesia argues that the clause ‚[o]nce the issue
of self-defense is raised‛ communicated to the jury that ‚the
prosecution needed to disprove self-defense only if the issue of
self-defense was raised.‛ Mesia further argues that the phrase ‚as
to whether he acted in self-defense‛ implies that Mesia would
have had to produce positive evidence that she acted in self-
defense. We are not persuaded by Mesia’s argument.
¶37 The instruction’s phrasing did not create ambiguity or
confusion regarding the applicability of the State’s burden of
20131066-CA 17 2015 UT App 235State v. Maama
proof. It correctly described to the jury the prosecutor’s burden
and the standard of proof, and it pointed out that ‚[t]he
defendant has no particular burden of proof but is entitled to be
found not guilty if there is any basis in the evidence from either
side sufficient to create a reasonable doubt as to whether he
acted in self-defense.‛ See Garcia, 2001 UT App 19, ¶¶ 7–16, 18
(providing a thorough analysis concerning the allocation of the
burden of proof with respect to self-defense instructions). As a
result, Mesia has not established that Instruction 57 constitutes
error, let alone obvious error, and her plain-error claim fails.
Similarly, because any objection to Instruction 57 would have
been futile, Mesia’s trial counsel did not render deficient
performance. See Layton City v. Carr, 2014 UT App 227, ¶ 19, 336
P.3d 587 (‚[C]ounsel’s performance at trial is not deficient if
counsel refrains from making futile objections, motions, or
requests.‛ (citation and internal quotation marks omitted)).
Mesia therefore is not entitled to relief under her theories of
plain error or ineffective assistance of counsel.
C. Whether the Jury Instructions Conveyed That Mesia
Raised Self-Defense
¶38 Mesia also argues that the jury instructions failed to
convey that ‚self-defense was raised or that it otherwise applied
to the charges against Mesia.‛ In particular, she claims the self-
defense instructions were deficient because their use of
masculine pronouns suggested the defense applied only to her
male codefendants, and because they did not specifically state
that self-defense applied to her.
¶39 Here, for three reasons, Mesia has not established that she
was prejudiced by the alleged deficiencies in the self-defense
instructions. First, the other self-defense instructions were
gender neutral. For instance, Instruction 51, the initial self-
defense instruction, explained that ‚[a] person is justified in
threatening or using force against another when and to the
20131066-CA 18 2015 UT App 235State v. Maama
extent that he or she reasonably believes that force is necessary to
defend himself or a third person against such other’s imminent
use of unlawful force.‛ (Emphasis added.) There are other
examples. Instruction 52 explained that a ‚person is not justified
in using force if he or she‛ initially provoked the use of force, etc.
(Emphasis added.) Instruction 55 says that ‚a person does not
have a duty to retreat.‛ (Emphasis added.) Instruction 56 speaks
in terms of ‚*i+f one is confronted by the appearance of peril.‛
(Emphasis added.) Thus, the fact that Instruction 57 used the
masculine pronoun in stating that the ‚defendant . . . is entitled
to be found not guilty if . . . he acted in self-defense‛ does not
convince us that the jury might have read the self-defense
instructions as applying to only the male codefendants.
(Emphasis added.)
¶40 Second, the compulsion instruction explicitly directed
that it ‚applie*d+ only to *Semisi’s+ claim of coercion in the
alleged Robbery.‛ Because the compulsion instruction was
expressly limited to one charge against Semisi, we agree with the
State that ‚the reasonable implication to the jury was that, unlike
compulsion, self-defense applied to all‛ defendants and all
charges. We therefore conclude that the instructions as a whole
fairly instructed the jury that it could consider self-defense in
connection with the charges against Mesia.
¶41 Finally, we are not persuaded that the jury was confused
or misled regarding whether the self-defense instructions
applied to Mesia. The overall tenor of the proceedings made
clear to the jury that Mesia had raised self-defense as an
affirmative defense. During opening statements, Mesia’s counsel
told the jury that Mesia ‚did nothing illegal. . . . [S]he was trying
to . . . defend what she has a right to do under the law.‛ The
closing arguments also made plain that the jury should consider
whether self-defense applied to the charges against Mesia.
Mesia’s counsel specifically asked the jury ‚to look carefully at
the instructions regarding self-defense‛ because ‚there is self-
20131066-CA 19 2015 UT App 235State v. Maama
defense on the aggravated assault and there is self-defense on
the riot for Mesia.‛ The prosecutor’s closing argument repeated
an instruction on self-defense, explaining that ‚*t+here is a self-
defense claim, specifically by Mesia Maama,‛ and argued more
than once that the facts of the case did ‚not . . . equal self-
defense.‛ Given these circumstances, we do not see how the jury
could have been confused about whether Mesia had raised self-
defense as an affirmative defense. For these reasons, we
conclude Mesia has not established that the purported error in
the self-defense instructions prejudiced her defense.8
III. Sufficiency of the Evidence to Support the Assault
Conviction
¶42 Mesia contends the evidence was insufficient to support
her conviction for assault.9 The parties agree the assault
conviction was based on Mesia punching Father immediately
after she approached him to ask for the gun. Mesia admits she
punched Father, but contends the evidence was insufficient for
conviction because ‚*n+o reasonable jury could have concluded
beyond a reasonable doubt that Mesia did not reasonably believe
8. Although confusion was unlikely here, we agree with Mesia
that instructing the jury using pronouns that correspond with
the gender of the person or persons to whom they apply avoids
any possible confusion and thus is the better practice.
9. Assault is ‚an attempt, with unlawful force or violence, to do
bodily injury to another; . . . a threat, accompanied by a show of
immediate force or violence, to do bodily injury to another;
or . . . an act, committed with unlawful force or violence, that
causes bodily injury to another or creates a substantial risk of
bodily injury to another.‛ Utah Code Ann. § 76-5-102(1)
(LexisNexis 2012). Mesia does not challenge the sufficiency of
the evidence with regard to her riot conviction.
20131066-CA 20 2015 UT App 235State v. Maama
that punching [Father] was necessary to defend[] herself, Semisi,
or Pham from *Father’s+ imminent use of unlawful force.‛
¶43 ‚We will reverse a jury conviction for insufficient
evidence only if the evidence presented at trial is so insufficient
that reasonable minds could not have reached the verdict.‛ State
v. Fedorowicz, 2002 UT 67, ¶ 40, 52 P.3d 1194 (citation and
internal quotation marks omitted). ‚[I]n reviewing the
sufficiency of the evidence, we refuse to re-evaluate the
credibility of witnesses or second-guess the jury’s conclusion.‛
Id. (citation and internal quotation marks omitted). ‚We also
assume that the jury believed the evidence that supports the
verdict.‛ Id.
¶44 A person is justified in using non-deadly force against
another in self-defense ‚when and to the extent that the person
reasonably believes that force or a threat of force is necessary to
defend the person or a third person against another person’s
imminent use of unlawful force.‛ Utah Code Ann. § 76-2-
402(1)(a) (LexisNexis 2012). ‚In determining *the+ imminence‛ of
the threat or the ‚reasonableness‛ of force used in self-defense,
‚the trier of fact may consider . . . the nature . . . *and+ the
immediacy of the danger.‛ Id. § 76-2-402(5)(a)–(b). ‚Force is
justifiable under section 76-2-402 only if a reasonable belief in the
imminence of unlawful harm and in the necessity of defensive
force coincide with the defendant’s use of force.‛ State v. Berriel,
2013 UT 19, ¶ 14, 299 P.3d 1133.
¶45 Viewing the evidence in the light most favorable to the
verdict, we believe the jury could conclude beyond a reasonable
doubt that Mesia did not commit the assault against Father in
self-defense. There was evidence that by the time Mesia saw
Father holding the gun, the fight was ‚over‛ and the situation
had ‚defused.‛ Despite this de-escalation, Mesia approached
Father, asking for the gun. The jury could reasonably conclude
from this evidence that Father did not pose an ‚imminent‛
20131066-CA 21 2015 UT App 235State v. Maama
threat to Mesia, Semisi, or Pham. Although Father waved the
gun—and perhaps even pulled the trigger—some evidence
suggested he never pointed it at anyone. As a result, the jury was
justified in concluding that Mesia did not have a reasonable
belief that punching Father was ‚necessary to defend‛ herself
and her codefendants. Accordingly, the evidence is sufficient to
support Mesia’s assault conviction.
IV. Cumulative Error
¶46 Finally, Mesia contends that even if her several claimed
errors were not individually prejudicial, they constitute
cumulative error and warrant reversal. ‚Under the cumulative
error doctrine, we will reverse only if the cumulative effect of the
several errors undermines our confidence . . . that a fair trial was
had.‛ See State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993)
(omission in original) (citation and internal quotation marks
omitted); see also State v. Gonzales, 2005 UT 72, ¶ 74, 125 P.3d 878(explaining that ‚*i+f the claims are found on appeal to not
constitute error, or the errors are found to be so minor as to
result in no harm, the doctrine [of cumulative error] will not be
applied‛). As discussed above, because we believe the errors in
this case are so minor as to result in no harm, we conclude that
their cumulative effect does not ‚undermine our confidence‛ in
the fairness of the trial so as to warrant reversal of Mesia’s
convictions. See Dunn, 850 P.2d at 1229.
CONCLUSION
¶47 We conclude that although the trial court improperly
commented on the evidence, the comment did not substantially
influence the verdict. The trial court therefore did not exceed its
discretion in denying Mesia’s motion for a mistrial. We further
conclude that any error in the curative instruction addressing the
court’s improper comment did not prejudice Mesia. We also
have determined the jury instructions did not misstate the State’s
20131066-CA 22 2015 UT App 235State v. Maama
burden of proof and Mesia’s other claims of error in the jury
instructions were harmless. Moreover, the evidence was
sufficient to sustain Mesia’s conviction for assault. Accordingly,
we affirm Mesia’s convictions.
20131066-CA 23 2015 UT App 235