State v. Folsom , 438 P.3d 992 ( 2019 )

2019 UT App 17THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DANIEL JAY FOLSOM,
Appellant.
Opinion
No. 20160739-CA
Filed January 25, 2019
Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 111909566
David M. Corbett, Attorney for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.
POHLMAN, Judge:
¶1 Daniel Jay Folsom appeals his conviction for murder. He
contends that the trial court erred in denying him access to the
victim’s medical records, in making certain evidentiary
decisions, and in refusing his request for an instruction on the
lesser included offense of negligent homicide. He also raises
alternative claims of ineffective assistance of counsel related to
the court’s evidentiary decisions. We affirm.
BACKGROUND
¶2 Folsom and his girlfriend (Victim) had a rocky
eleven-year romantic relationship, during which time Folsom
struggled with alcohol abuse. After one of many fights that
State v. Folsom
turned physical, Victim died from injuries inflicted by Folsom.
The State charged Folsom with murder. Folsom claimed that he
acted in self-defense.
Folsom’s Request for Access to Victim’s Medical Records
¶3 Before trial, Folsom moved the court to order subpoenas
for the production of Victim’s psychiatric and mental health
records and requested that the court review those documents in
camera. In support, Folsom alleged that Victim had been taking
various medications to treat her issues with anger and rage, and
that the requested records would “further document the
existence of [Victim’s] violent attacks and bolster the self defense
claim with respect to the reasonable belief as to the violent
nature of [Victim] and the danger she posed.” Although the trial
court initially granted Folsom’s motion, it later denied the
requested relief after one of Victim’s representatives objected.
The court concluded that Folsom had “not made a sufficient
showing . . . that the requested records are reasonably certain to
contain exculpatory evidence favorable to his defense,” and the
court therefore refused to permit “a fishing expedition.” The
court also refused to allow for an in camera inspection of the
records and denied Folsom’s requests to reconsider.
The State’s Case-in-Chief
¶4 The case proceeded to trial, where Folsom and Victim’s
next-door neighbor (Neighbor) testified for the State. Neighbor
testified that around 11:30 p.m. to 11:45 p.m. on December 15,
2011, he heard a knock on his door. When he opened the door,
Neighbor found Victim sitting on his porch dressed only in a
jacket and pajama bottoms. Victim said, “I need help,” and then
said, “Dan.” Neighbor asked, “Dan did this?” Victim responded,
“Yeah. I need help. . . . He is out of control.” Neighbor invited
Victim inside his house, and he had to assist her because she was
having difficulty standing. Neighbor also noticed that Victim’s
hair was “wet and matted,” and her face was “pink and
swollen” and covered in blood. Neighbor perceived that Victim
20160739-CA 2 2019 UT App 17State v. Folsom
was in “bad shape” and “in obvious pain,” as she “wheez[ed]
and groan[ed]” while trying to speak. Victim stated, “I don’t
know if we should call the police.” After Neighbor laid Victim
down on the couch, Neighbor’s wife entered the room.
Neighbor’s wife testified Victim was “moaning” and in pain,
and though Victim “couldn’t speak coherently,” Victim did say
that “he was out of control.” Neighbor called 911.
¶5 The responding paramedic testified that Victim had
“some physical, obvious trauma to her face,” including a bloody
nose and split lip, and that she complained of pain in her left rib
cage. When he asked Victim what happened, she said she had
been assaulted with fists for “a long time.” While transporting
Victim to the hospital, the paramedic became concerned that
Victim had a head injury. A few days later, Victim died.
¶6 The medical examiner who performed Victim’s autopsy
testified that he observed “a number of blunt-force injuries” on
Victim’s body, including her face, scalp, arms, legs, and the
backside of her torso.1 He opined that “[p]retty much all of her
injuries appeared recent.” Although she had an older bruise on
her chest, she had several recent bruises on her back and
buttocks. She also had bruises and scrapes on her face, legs, feet,
arms, and hands, along with bruises and swelling on the back
side of her ear. Victim had two lacerations on the back of her
head but had no skull or facial fractures. According to the
medical examiner, none of Victim’s injuries suggested the use of
a weapon or instrument. He was “not aware that anything was
wielded against [Victim] or that . . . she ran into anything.”
¶7 The medical examiner certified Victim’s death as “due to
blunt injuries of her head.” While most of her surface injuries
1. The medical examiner’s report was admitted into evidence
along with many pictures of Victim’s injuries. The report
documented in excess of fifty distinct and measurable injuries,
many of substantial size.
20160739-CA 3 2019 UT App 17State v. Folsom
were “in and of themselves nonlethal,” the medical examiner
opined that “at some point a blow to the head caused [Victim] to
start bleeding in her head, and that’s what started the cascade of
events that ultimately led to her death.” He did not know
whether a single impact or many ultimately caused Victim’s
death, but he stated, “Certainly, she has multiple impacts to her
head.” He posited that Victim’s injuries likely occurred while she
was moving. As for the two lacerations at the back of her head,
the medical examiner testified that those injuries could be
explained as resulting from her falling backward into an object.
The medical examiner stated that the scrapes on Victim’s knees
and elbows could have been caused by crawling over bare
ground or “from any number of other things.”
¶8 The medical examiner concluded that Victim’s manner of
death was homicide. In his autopsy report, he opined that Victim
“died as a result of blunt force injuries of the head sustained
when she was beaten by an assailant.” Based on the nature and
“extent of the injuries,” the medical examiner testified that “this
is not something that [Victim] could have done accidentally.”
¶9 An officer who was dispatched to respond to Neighbor’s
911 call (Officer) testified about his interaction with Folsom that
night. After officers knocked on the door to Victim and Folsom’s
house, Folsom came to the door, “sweating” and with “steam
coming off of him.” Officer saw cuts on Folsom’s forehead and
under his eye. Officer observed “multiple spots” of what
appeared to be wet blood “all across” the upper chest area of the
sweatshirt Folsom was wearing. According to Officer, the
amount of blood on the sweatshirt was not consistent with
Folsom’s own injuries. When Officer asked Folsom about the
blood and his injuries, Folsom said that he “had eaten a lot of
hamburgers” and that he had gotten sick. Officer also observed
that Folsom was intoxicated, had “slurred speech,” and had
“heavy feet,” which caused him to stumble “a little bit.”
¶10 The State presented evidence that when investigators
searched Folsom and Victim’s house, they discovered red-brown
stains on the walls, the floor, the staircase railing, and other
20160739-CA 4 2019 UT App 17State v. Folsom
items. Loose hair was found near the stains and around the
house, including “a large chunk of hair” on the floor in the
master bedroom. The bathroom was “disheveled,” with the toilet
seat chipped, broken, and appearing to have been forcefully
removed. Other items in the house were broken or knocked
over, including a vase, perfume bottles, and a hair clip with hair
still in it. The State also offered evidence confirming the presence
of blood on Folsom’s sweatshirt as well as on surfaces in the
bathroom and hallway. Further, Victim’s DNA profile matched
samples taken from Folsom’s sweatshirt and various bloodstains
in the house.
¶11 The State also offered character witnesses. First, the State
called Victim’s mother (Mother). Without objection from the
defense, Mother testified that after Victim visited Folsom around
Thanksgiving 2010, Victim had a black eye. When Mother asked
Victim what happened, Victim answered, “I made Dan mad.”
Mother also opined that Victim was not a violent person but that
Folsom was. 2
¶12 Second, one of the couple’s longtime friends (Sponsor)
testified, acknowledging that he had served as Folsom’s
ostensible sponsor in a group for recovering drug and alcohol
addicts. Sponsor described Folsom and Victim’s relationship as
“[t]umultuous,” with some “periods of fighting,” but Sponsor
never personally witnessed them fight. At times, Sponsor had
helped Folsom get and stay sober “for a little while,” though
Folsom would “go back to drinking,” and Folsom and Victim
would “start fighting again.”
¶13 According to Sponsor, he received phone calls on a couple
of occasions that prompted him to go to Folsom and Victim’s
house. One of those times, around 2004, Sponsor tried to help
Victim leave and go to a women’s shelter after a fight. Victim
2. Victim’s former coworker also testified that Victim was not a
violent person.
20160739-CA 5 2019 UT App 17State v. Folsom
was “scared,” but Sponsor convinced Victim to follow him in her
own car to the shelter. Although Victim followed him for a time,
she stopped following him and changed course when they came
within a few blocks of the shelter.
¶14 Sponsor testified that he last saw Victim around
September 2011 when he crossed paths with Victim and Folsom
in a store parking lot. During this encounter, Sponsor noticed
that Victim had a black eye. Over defense counsel’s hearsay
objection, Sponsor testified that he asked Victim what had
happened, and Victim “said she got [the black eye] playing
baseball.” Sponsor did not believe Victim’s explanation.
Folsom’s Testimony
¶15 Folsom testified in his defense at trial, offering his
recollection of that December night. Folsom testified that when
he got home early from work, about 4:30 to 5:00 p.m., Victim was
“not saying a whole lot,” making Folsom think that she was mad
at him. Folsom had several drinks at home before he went over
to a friend’s (Friend) house for the evening. While there, he had
more beer with Friend, and they started doing shots of whiskey
until they finished the bottle. Folsom and Friend then visited the
liquor store and picked up another bottle of whiskey. After
returning to Friend’s house, they resumed drinking “shot after
shot.”
¶16 Folsom did not remember returning to his home that
night, but he recalled “feeling kind of startled” and “blocking
fists.” He remembered Victim hitting him in the head, but he did
not know if it was with a fist. In response, Folsom “block[ed]
shots,” “grabb[ed] her and push[ed] her away,” with Victim
“going this way and going that way.” Folsom tried to restrain
her by grabbing her by her hands, shoulders, and midsection.
¶17 Folsom’s next memory is of Victim “jumping on top of
[him] and punching [him]” while he was lying on the bed.
Folsom tried to “pull her off” and was able to wrestle with her,
flipping her over so that he was on top. He did not remember
20160739-CA 6 2019 UT App 17State v. Folsom
what happened with Victim after that. Folsom testified that he
sustained scratches to his face, a bad cut on his nose, and lumps
on his forehead that lasted about a week.
¶18 Folsom did not remember his interactions with police that
night but only recalled seeing emergency personnel in the
direction of Neighbor’s house and having his blood drawn. He
stated that he loved Victim and never thought about causing her
significant physical harm.
¶19 Folsom also testified generally about his relationship with
Victim, stating that “when it was good, it was way good,” and
“[w]hen [it] was bad, it was way bad.” According to Folsom, the
couple would have “real bad” arguments “almost like clockwork
every two weeks,” and Victim would “blow up,” “throw things”
like pots and pans, “break things,” and “slap” him. Folsom
stated that from 2001 to 2003, when Victim was “really upset,”
she would “charge [him] with her fists going” and hit him in the
chest, while he would threaten to call 911. From 2004 to 2007, the
couple’s “blowouts got closer together”; Victim was “full of
anger” and “would get out of control,” and the police were
called several times.
¶20 When asked whether he was violent with Victim, Folsom
testified about one “altercation” that occurred in 2004, when he
tried to leave on his bike and they had “a tug of war” over the
bike and a bottle of alcohol, resulting in Victim falling to her
knees. From 2006 to 2009, the violence “escalated,” especially in
2009 when Victim pulled a knife and shotgun on him—an event
that resulted in Folsom obtaining a protective order against
Victim until they got back together. And from 2009 through
2011, her violence was even “[w]orse.”
¶21 Folsom introduced evidence that, over the course of their
relationship, the police were called eleven times, with Folsom
making nine of those calls. To explain why he made those calls,
Folsom stated, “I was afraid of what she might do because she’s
lied before and it’s gotten me in trouble, bad trouble. . . . I’m also
afraid of what she might do to me.”
20160739-CA 7 2019 UT App 17State v. Folsom
¶22 On cross-examination, the prosecutor asked Folsom what
Victim had lied about to police in relation to the 2004 incident
involving the bike. Over defense counsel’s objection on hearsay
grounds, Folsom said, “[Victim] lied about me choking her and
threatening to kill her, she lied about that.” The prosecutor also
questioned Folsom about an incident on Thanksgiving 2009.
Folsom admitted that he was arrested that day after he had been
drinking and the police had been called to the couple’s house.
When asked what lies Victim had told about that incident,
Folsom responded, “She said that I held her at gun point. . . . I
believe she said that I pistol-whipped her. That’s not true.”
¶23 When asked about the nine times that he had called the
police, Folsom testified that around January 2004 Victim had
punched him twice in the chest and that she was charged with
“domestic violence disorderly conduct.” He also described a call
he made in July 2002 because Victim punched him, testifying
that on that occasion Victim “lied about [him] pushing her.”
With regard to all the other calls he made, Folsom explained that
even though Victim had not done anything violent, he made the
calls because of “[e]scalating arguments” with Victim that he
believed “were always on the verge of violence,” and he would
tell the police that he did not “know what [she was] going to
do.” In responding to those calls, the police explained to him
“once or twice” the difference between civil and criminal
matters.
¶24 Turning to the night in question, December 15, 2011, the
prosecutor asked Folsom, “Based on your testimony, you would
agree that the injuries [Victim] sustained that night were
inflicted by you?” Folsom answered, “Yes.” Folsom stated that
he did not remember his intent in inflicting those injuries. He
acknowledged that he remembered being punched and trying to
block those punches and that his intent in blocking those
punches was to defend himself. The prosecutor asked Folsom to
confirm that after he returned home from Friend’s that night,
Folsom “blacked out until [he] came to defending [himself],” to
which Folsom responded, “That’s correct.”
20160739-CA 8 2019 UT App 17State v. Folsom
Other Witnesses for the Defense
¶25 In his defense, Folsom offered testimony relevant to his
alcohol consumption on the night of December 15. He called
Friend, who testified that Folsom was with him from about 5:00
or 5:30 p.m. until 10:00 or 10:30 p.m. According to Friend, during
that time, Folsom drank five or six beers, and they shared a
bottle of whiskey. Folsom also called a forensic toxicologist to
testify. The toxicologist testified that using Folsom’s blood
alcohol content that was measured at 7:04 a.m. on December 16,
he calculated that Folsom’s blood alcohol content was around .2
or .22 at 11:40 p.m. when the police arrived at Folsom’s house on
December 15. Because chronic alcoholics like Folsom burn off
alcohol at a higher rate, the toxicologist opined that Folsom’s
blood alcohol content could have been as high as .31 at 11:40
p.m.
¶26 Folsom also presented character witnesses. He called two
of Victim’s relatives (collectively, Relatives). One of them opined
that Victim was a violent person, and the other opined that
Victim “carrie[d] a lot of anger and . . . [could] be very violent”
but that Folsom is nonviolent. 3 He called two other
long-standing acquaintances. The first acquaintance testified that
Folsom is not violent but that Victim was “semiviolent.” The
second acquaintance testified that Folsom is not a violent person
and that he had “never seen [Folsom] attempt to hurt anyone.”
The second acquaintance had never seen Victim attempt to hurt
anyone either.
¶27 Finally, the defense presented evidence of Folsom’s
interview with police on the night in question. When police
asked Folsom how he was doing that night, he said, “I’m doing
good,” and repeatedly denied knowing why he was being
interviewed. When police asked Folsom to describe his
3. One of the relatives also testified that Victim “bruised very
easily.”
20160739-CA 9 2019 UT App 17State v. Folsom
relationship with Victim, he said that it had been “pretty good
lately”; though he referred to problems in the past, he said they
had “gotten past all of that” and were “doing good.” Folsom
stated that he had spent a few hours with Friend that evening,
and while he admitted that he had a few beers before going to
Friend’s house, he denied that he drank more there. Folsom said
that when he returned home that night, he thought Victim was
asleep upstairs, and he stayed downstairs and watched TV.
Folsom explained that the stains on his sweatshirt might have
come from walking into a wall in the kitchen. When informed
that the ambulance went to Neighbor’s house for Victim, Folsom
asked if she was “okay” and if she was “alive.” Folsom told the
police that he did not know what happened, but he also stated,
“For all I know, she could have fell down,” and, “I didn’t touch
anybody. I didn’t do anything. I know that much.”
The State’s Evidence in Rebuttal
¶28 The State presented rebuttal evidence. It offered a video
of Folsom sitting alone in the police station interview room after
the interview had ended. Folsom looked down at his hands and
said to himself, “I never touched her.” After two minutes, he
again looked at his hands and repeated, “I never touched her.”
Then, after another two minutes passed, Folsom said to himself,
“I only touched her once.”
¶29 Also in rebuttal, the State recalled Officer, who had
interviewed Folsom on December 15. Without an objection from
the defense on character evidence grounds, Officer testified that
he had been dispatched to the couple’s home in August 2004.
During that assignment, Officer spoke with Victim and noticed
several injuries on her body, including “various abrasions,” “a
chipped tooth,” a “broken fingernail,” injuries on both arms, a
skinned knee or leg, an abrasion on her back, and “redness
around her neck area.” He testified that the pink coloration he
observed “all the way across” Victim’s neck was “consistent
with strangulation.” The State also offered into evidence several
photographs of Victim in August 2004 showing the injuries that
20160739-CA 10 2019 UT App 17State v. Folsom
Officer described. Defense counsel stipulated to the admission of
those photographs.
¶30 The State concluded with a final rebuttal witness,
Victim’s former spouse (Ex-husband). Ex-husband testified that
Victim was never violent during their relationship and that she
was “not violent at all.” Over defense counsel’s objections based
on relevance and hearsay grounds, Ex-husband testified that,
when he last spoke to Victim in October 2011, he asked her why
she kept going back to Folsom, and Victim responded that
Folsom “was sorry, he was going to get help, and do whatever it
takes.”
Folsom’s Proffered Evidence That Was Excluded
¶31 Folsom attempted to adduce evidence regarding two
types of instances when Victim purported to admit to assaulting
Folsom. First, Folsom proffered to the court that Relatives would
testify that Victim admitted to them that on more than one
occasion she beat Folsom with various objects after he had
passed out drunk. Second, Folsom proffered that a coworker
(Coworker) would testify that Victim had admitted to attacking
Folsom and pulling out some of his hair.
¶32 Folsom urged the court to admit the proffered testimony
as statements against penal interest pursuant to rule 804(b)(3) of
the Utah Rules of Evidence. 4 The court denied Folsom’s request.
4. Rule 804(b)(3) provides that when the declarant is unavailable,
a statement is not excluded as hearsay if the statement is one that
“(A) a reasonable person in the declarant’s position would have
made only if the person believed it to be true because, when
made, it was so contrary to the declarant’s proprietary or
pecuniary interest or had so great a tendency . . . to expose the
declarant to civil or criminal liability” and “(B) is supported by
corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that
(continued…)
20160739-CA 11 2019 UT App 17State v. Folsom
It reasoned that Victim’s statements to Relatives did not have
“sufficient reliability” to be admissible under rule 804. As for
Victim’s statement to Coworker, the court reasoned that, because
it did not expose Victim to potential criminal liability, the
statement did not qualify as a statement against interest.
The Jury Instructions and Verdict
¶33 Folsom asked the court to instruct the jury on an
additional lesser included offense of negligent homicide. The
court refused to do so. But the court did instruct the jury on two
other lesser included offenses: manslaughter and homicide by
assault.
¶34 In addition, the court instructed the jury on several
variants of murder, stating that it could find Folsom guilty of
murder if he (a) “[i]ntentionally or knowingly caused the death
of [Victim]”; (b) “[i]ntending to cause serious bodily injury to
[Victim], committed an act clearly dangerous to human life that
caused [Victim’s] death”; or (c) “[a]cting under circumstances
evidencing a depraved indifference to human life, knowingly
engaged in conduct which created a grave risk of death to
[Victim], and thereby caused [Victim’s] death.” See generally
Utah Code Ann. § 76-5-203 (LexisNexis 2017) (defining murder
and its variants). The court also instructed the jury on the
defenses of intoxication and self-defense.
¶35 The jury convicted Folsom of murder.
ISSUES ON APPEAL
¶36 On appeal, Folsom asserts two categories of error: errors
that bear on the evidentiary picture relevant to his claim of
(…continued)
tends to expose the declarant to criminal liability.” Utah R. Evid.
804(b)(3).
20160739-CA 12 2019 UT App 17State v. Folsom
self-defense, and one error regarding the jury instructions on a
possible lesser included offense.
¶37 In the first category, Folsom argues that the trial court
erred in refusing his request for access to Victim’s medical
records. Also in this first category, Folsom challenges several
evidentiary decisions. He asserts that the trial court erred in
excluding, as hearsay, evidence about Victim’s alleged prior
assaults on him. He also asserts that the court erred in admitting
hearsay and character evidence regarding his alleged prior
assaults on Victim and, alternatively, that trial counsel rendered
constitutionally ineffective assistance in failing to object to that
evidence.
¶38 In the second category, Folsom argues that the trial court
erred by refusing to instruct the jury on negligent homicide as a
lesser included offense of murder.
¶39 To succeed on any of these issues on appeal, Folsom must
demonstrate that the claimed errors were harmful, meaning that
the errors “affected the outcome of his case.” See State v. Reece,
2015 UT 45, ¶ 33, 349 P.3d 712. Similarly, to succeed on his
alternative ineffective assistance of counsel claims, he must show
that he was prejudiced by his trial counsel’s alleged deficient
performance. See Strickland v. Washington, 466 U.S. 668, 687, 694
(1984).
ANALYSIS
I. Claims Related to the Evidentiary Picture
¶40 We first set forth Folsom’s evidentiary claims and the
specific evidence at issue. We next set forth Folsom’s related
arguments regarding resulting harm and his burden to
demonstrate harm. After assuming that Folsom is correct with
respect to his evidentiary claims and briefly describing the law
of self-defense, we ultimately conclude that Folsom has not
shown that he was harmed by any error. The evidence at issue
20160739-CA 13 2019 UT App 17State v. Folsom
was not reasonably likely to alter the jury’s decision about
whether Folsom was justified in using force intended or likely to
cause death or serious bodily injury. We reach this conclusion
chiefly because the overwhelming physical evidence and
Victim’s significant injuries powerfully demonstrate that Folsom
used an unreasonable amount of force against Victim under the
circumstances and because much of the evidence at issue is
cumulative of other evidence, which allowed the jury to
sufficiently consider Folsom’s theory of the case. We therefore
decline to reverse his conviction based on any of his evidentiary
claims.
¶41 Folsom raises three kinds of errors that relate to evidence
allegedly relevant to his claim of self-defense. First, he asserts
that the trial court erred in denying him “access to [Victim’s]
medical records to assist in his self-defense claim where reliable
evidence suggested that [Victim] received psychiatric
medications, at least in part, to treat mental illness that resulted
in anger and violence.” Under this claim of error, he asserts that
Victim’s medical “records were relevant to an element of his
claim that he acted in self-defense—that he woke up to find
[Victim] beating him and took steps to prevent further abuse.”
According to Folsom, Victim’s “fits of anger and rage fueled her
violent behavior” and when Victim was not medicated, her
“mood swings . . . transformed her from a peaceful person into a
violent person.”
¶42 Second, Folsom asserts that the trial court should have
admitted evidence of Victim’s statements made to Coworker and
Relatives that Victim had previously assaulted Folsom.
Specifically, he asserts he should have been able to present
Victim’s admissions that she had, on more than one occasion,
attacked him after he had passed out from intoxication and that
another time she had attacked him and pulled out some of his
hair. See supra ¶ 31.
¶43 Third, Folsom asserts that the court erred in admitting
hearsay and character evidence regarding his alleged prior
assaults of Victim and, alternatively, that his trial counsel
20160739-CA 14 2019 UT App 17State v. Folsom
rendered ineffective assistance in failing to object to that
evidence. In particular, Folsom contends that the following
evidence ultimately should have been excluded:
• Victim’s statement to police, elicited on cross-
examination of Folsom, that Folsom had choked
and threatened to kill her in 2004, supra ¶ 22;
• Officer’s rebuttal testimony that he had responded
to the 2004 incident and observed various injuries
to Victim, including marks on her neck that were
consistent with strangulation, supra ¶ 29;
• photographs of the alleged injuries to Victim after
the 2004 incident, supra ¶ 29;
• Victim’s statement made to Ex-husband that
Folsom was sorry and was getting help, supra ¶ 30;
• Mother’s testimony that Victim had a black eye
around Thanksgiving 2010 and that Victim
explained that she had “made Dan mad,” supra
¶ 11;
• Sponsor’s testimony that Folsom and Victim
fought more when Folsom drank, supra ¶ 12;
• Sponsor’s account of coaxing Victim to go to a
shelter, supra ¶ 13; and
• Sponsor’s testimony about seeing Victim with a
black eye in 2011, including her explanation that it
came from a baseball game and his disbelief in that
innocent explanation, supra ¶ 14.
¶44 When it comes to the question of harm, most of Folsom’s
claimed errors and claims of ineffective assistance of counsel
relate to his self-defense theory that Victim was the initial
20160739-CA 15 2019 UT App 17State v. Folsom
aggressor in the altercation that led to her death. On his first
claim of error, he asserts that, had the court granted his request
to access Victim’s medical records, he would have been able to
present evidence proving Victim’s state of mind and to “more
effectively cross-examine the multiple witnesses who testified
that [Victim] had a peaceful, non-violent character.” He also
would have used the records “to prove . . . that [Victim] was an
angry and violent [person] in support of his self-defense claim”
and that her “fits of anger and rage fueled her violent behavior.”
In his view, this evidence “would have carried great weight in
resolving credibility issues among the other witnesses” and
“would have certainly made it more likely in the minds of the
jury that she was the first aggressor.”
¶45 On the second and third claims of error, Folsom asserts
that the admission of evidence regarding Victim’s alleged prior
assaults and the exclusion of evidence regarding his alleged
prior assaults would have affected the jury’s assessment of their
characters for peacefulness and violence. With regard to the
excluded evidence of Victim’s prior assaults of him, he asserts
that that evidence went to the “core” of his defense that “he had
to defend himself against a physical attack from [Victim] after
she attacked him in a compromised, drunken state.” Given that
Folsom was the only eyewitness to the December 15 incident and
the conflicting testimony about Victim’s propensity for violence,
Folsom argues that character evidence regarding Victim and
Folsom “played a large role” in the case, and that the evidence of
Victim’s prior assaults of him “would have carried great weight
in the minds of the jurors.”
¶46 With regard to the admitted evidence suggesting that he
had previously assaulted Victim, Folsom emphasizes the
tendency of that evidence, in contravention of rule 404 of the
Utah Rules of Evidence, to prove that he had “acted violently in
the past and must have acted in conformity therewith during the
fight that led to [Victim’s] death.” Folsom states that the physical
evidence indicated that Victim’s injuries were “consistent with
mutual combat” and that the fatal injury “could have resulted
20160739-CA 16 2019 UT App 17State v. Folsom
from a single impact.” Folsom then asserts that “[w]here
credibility about who was the initial aggressor played a crucial
role in the case, this evidence [about Folsom’s alleged prior
assaults], with its tendency to very strongly prove that [Folsom]
was the first aggressor in the past, cannot be harmless.” Folsom
concludes that “there is no real possibility that the jurors would
not believe [he] acted in conformity with his prior conduct and
murdered [Victim] rather than acting in self-defense.”
¶47 To succeed on appeal, Folsom must demonstrate that the
claimed errors were harmful. See State v. Reece, 2015 UT 45, ¶ 33,
349 P.3d 712 (“[T]he defendant generally bears the burden to
demonstrate that the error he complains of affected the outcome
of his case.”); see also Utah R. Crim. P. 30(a) (“Any error, defect,
irregularity or variance which does not affect the substantial
rights of a party shall be disregarded.”). “Harmless errors are
those that are sufficiently inconsequential so no reasonable
likelihood exists that the error affected the outcome of the
proceedings.” State v. Courtney, 2017 UT App 172, ¶ 22, 424 P.3d
198 (quotation simplified). On the other hand, harmful errors are
those where “the likelihood of a different outcome [is]
sufficiently high to undermine confidence in the verdict.” State v.
Knight, 734 P.2d 913, 920 (Utah 1987). Likewise, to establish
prejudice for ineffective assistance of counsel claims, the
appellant “must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v. Washington,
466 U.S. 668, 694 (1984); see also State v. Garcia, 2017 UT 53, ¶ 37,
424 P.3d 171 (“[U]nder Strickland, it is the defendant’s burden to
show that he was prejudiced by his counsel’s performance.”).
¶48 For purposes of our analysis, we assume, without
deciding, that Folsom is correct that the trial court made the
alleged evidentiary errors and his trial counsel performed
deficiently in not lodging appropriate objections. But we
conclude that Folsom has not shown harm, namely, that there is
a reasonable likelihood that the trial court’s errors and counsel’s
deficient performance affected the outcome of the case. We reach
20160739-CA 17 2019 UT App 17State v. Folsom
this conclusion because the staggering physical evidence shows
that Folsom used excessive force under the circumstances and
because the challenged evidence is cumulative of other admitted
evidence. On the record before us, there is no reasonable
likelihood that, in the absence of these assumed errors, the jury
would have concluded that the State failed to prove beyond a
reasonable doubt that Folsom was not justified in using the
amount of force that he used against Victim. While the evidence
that Folsom claims was either improperly admitted or
improperly excluded or made unavailable would have perhaps
changed the jury’s assessment of whether Victim or Folsom was
the first aggressor, that evidence was not reasonably likely to
alter the jury’s view of whether Folsom was justified in using
force intended or likely to cause death or serious bodily injury. 5
¶49 We begin with a brief outline of the law of self-defense.
“A person is justified in threatening or using force against
another when and to the extent that the person reasonably
believes that force or a threat of force is necessary to defend the
person . . . against another person’s imminent use of unlawful
5. Folsom briefly seeks to invoke the cumulative error doctrine,
asking this court to “consider the cumulative effect of the
various errors complained of in this appeal.” Under the
cumulative error doctrine, an appellate court “will reverse a jury
verdict . . . only if the cumulative effect of the several errors
undermines [its] confidence that a fair trial was had.” State v.
Martinez-Castellanos, 2018 UT 46, ¶ 39, 428 P.3d 1038 (quotation
simplified). In applying this doctrine, the appellate court
“should consider all the identified errors, as well as any errors
we assume may have occurred.” Id. ¶ 40 (quotation simplified).
The doctrine will not be applied, however, where the errors,
even considered collectively, “are found to be so minor as to
result in no harm.” Id. (quotation simplified). Here, we assume a
number of errors and have concluded that the claimed errors,
even viewed collectively, were “so minor as to result in no
harm.” See id. (quotation simplified).
20160739-CA 18 2019 UT App 17State v. Folsom
force.” Utah Code Ann. § 76-2-402(1)(a) (LexisNexis Supp.
2018). 6 “A person is justified in using force intended or likely to
cause death or serious bodily injury only if the person
reasonably believes that force is necessary to prevent death or
serious bodily injury to the person . . . as a result of another
person’s imminent use of unlawful force, or to prevent the
commission of a forcible felony.” Id. § 76-2-402(1)(b); see also State
v. Sherard, 818 P.2d 554, 561 (Utah Ct. App. 1991) (stating that
reasonable in the context of the self-defense statute means
“objectively reasonable” (quotation simplified)).
¶50 A person is not justified in using deadly force, however, if
the person
(i) initially provokes the use of force against the
person with the intent to use force as an excuse to
inflict bodily harm upon the assailant; (ii) is
attempting to commit, committing, or fleeing after
the commission or attempted commission of a
felony . . . ; or (iii) was the aggressor or was
engaged in a combat by agreement, unless the
person withdraws from the encounter and
effectively communicates to the other person his
intent to do so and, notwithstanding, the other
person continues or threatens to continue the use
of unlawful force.
Utah Code Ann. § 76-2-402(2)(a). The Utah Code specifies that in
“determining imminence or reasonableness” of force used in
self-defense,
the trier of fact may consider, but is not limited to,
any of the following factors: (a) the nature of the
danger; (b) the immediacy of the danger; (c) the
6. Because recent amendments to this statute are not material to
our analysis, we cite the current version.
20160739-CA 19 2019 UT App 17State v. Folsom
probability that the unlawful force would result in
death or serious bodily injury; (d) the other’s prior
violent acts or violent propensities; and (e) any
patterns of abuse or violence in the parties’
relationship.
Id. § 76-2-402(5). When a defendant argues self-defense, the State
must “disprove the affirmative proposition of self-defense, not
just prove guilt, beyond a reasonable doubt.” State v. Garcia, 2001
UT App 19, ¶ 16, 18 P.3d 1123.
¶51 The evidence that Folsom identifies as problematic or
improperly made unavailable has a common thread: it would
bear on whether Victim was the first aggressor and on whether
Folsom or Victim (or both) were violent by nature. We conclude
that under the law of self-defense, even if there had been more
evidence that Victim was a violent person or was the first
aggressor 7 on December 15, 2011, and even if there was less
evidence that Folsom was a violent person, there still is no
reasonable likelihood that the jury would have found that the
State failed to prove that the magnitude of the force Folsom used
7. Even if the jury accepted Folsom’s theory that Victim was the
first aggressor, the jury would still need to resolve “whether
[Folsom’s] killing of [Victim] was reasonable and necessary to
defend himself against [Victim’s] imminent use of unlawful
force.” See State v. Knoll, 712 P.2d 211, 215–16 (Utah 1985)
(quotation simplified) (explaining that even where the victim
“first used defendant’s undrawn knife to commit the first
stabbing,” the jury “could justifiably conclude beyond a
reasonable doubt that the defendant did not commit the
homicide in self-defense because defendant’s acts went beyond
what was reasonably necessary to defend himself”). We
conclude that Folsom has not shown that there is a reasonable
likelihood that the assumed errors would impact the jury’s
determination of the reasonableness of the amount of force
Folsom used.
20160739-CA 20 2019 UT App 17State v. Folsom
against Victim was unjustified. The circumstances of this case
eliminate any reasonable likelihood that the jury could view
Folsom’s use of force as reasonable.
¶52 According to Folsom’s testimony, he returned home
drunk on December 15, 2011, and was “startled” by Victim
hitting him. Folsom “block[ed] shots,” and tried to restrain
Victim by grabbing her hands, shoulders, and midsection. Then,
when Folsom was lying on the bed, Victim jumped on top of him
and punched him. He pulled her off and wrestled with her,
eventually flipping her over so that he was on top. Folsom
conceded that he inflicted the injuries that Victim sustained that
night. Though Folsom did not recall his intent in inflicting those
injuries, he remembered being punched and trying to block
those punches and that his intent in blocking those punches was
to defend himself.
¶53 The physical evidence overwhelmingly indicates that the
degree of force Folsom used in inflicting Victim’s injuries
was unreasonable. In the altercation with Victim, Folsom—who
was ten inches taller and at least seventy pounds heavier than
Victim—sustained only scratches to his face, a bad cut on
his nose, and lumps on his forehead. But the amount of force
he used, purportedly to defend himself against Victim’s
punches, caused extreme injuries to Victim, including “a number
of blunt-force injuries” to her face, scalp, arms, torso, and legs.
Supra ¶ 6 & n.1. He also caused blunt force injuries to Victim’s
head, which ultimately led to her death. Even accepting that
Victim attacked Folsom first, considering Folsom’s superficial
wounds relative to Victim’s numerous, serious, and fatal injuries
strongly evidences that Folsom responded with a far greater
amount of force than was necessary to defend himself in the
manner he described. 8
8. In addition to the testimony at trial, the jury had before it
pictures of Folsom’s injuries and pictures of Victim’s injuries.
20160739-CA 21 2019 UT App 17State v. Folsom
¶54 Other compelling evidence also contradicts Folsom’s
position that he responded to Victim’s threat with necessary and
proportionate force. For example, when taking into account
Folsom’s considerable size advantage over Victim, Folsom’s own
trial testimony—that Victim was punching him from above and
that he flipped her over so that he was on top—suggests that he
was able to restrain her in a relatively short period of time. But
when Victim fled to Neighbor’s house, her face was swollen and
covered in blood, and she told Neighbor that Folsom did it and
was “out of control.” And when the paramedic was treating her,
Victim reported to him that she had been assaulted with fists for
“a long time.” Thus, Victim’s statements strongly indicate that
whatever amount of force Folsom used against Victim that night,
that force was in excess of the amount necessary to subdue any
threat she posed to him. And even assuming Victim was the first
aggressor and was a violent person generally, Folsom’s
description at trial does not support the notion that he was
required to act with such aggression to counter Victim’s threat.
Cf. State v. Berriel, 2013 UT 19, ¶ 14, 299 P.3d 1133 (explaining
that force is necessary to defend oneself when it is “absolutely
required” and that “the necessary requirement [of section 76-2-
402] distinguishes wanton violence from force that is crucial to
averting an unlawful attack” (quotation simplified)).
¶55 Further, Folsom’s own initial explanations of the night
undermine his theory at trial that he used reasonable force in
self-defense. He did not tell Officer that Victim had attacked him
and, in fact, implied that the wet stains on his sweatshirt were
ketchup instead of blood. Likewise, Folsom’s initial interview
with police did not suggest that he had experienced a
life-threatening event. Folsom instead stated that his relationship
with Victim was “pretty good lately” and that they had “gotten
past” their problems. Yet at trial, Folsom characterized their
relationship as either “way good” or “way bad” and described
Victim’s violence against him as worsening during the two years
leading up to Victim’s death. Folsom asserts that the challenged
evidence would have affected the jury’s resolution of whether
Victim was the first aggressor. But even assuming that Victim
20160739-CA 22 2019 UT App 17State v. Folsom
was the first aggressor, Folsom has not persuaded us—given,
among other things, the inconsistencies in his accounts—that the
challenged evidence would have changed the jury’s evaluation
of the question of the reasonableness of Folsom’s force.
¶56 It is also important that, contrary to Folsom’s version of
events at trial, the altercation did not appear confined in time or
place. The couple’s house was disheveled, with numerous items
broken and misplaced, and Victim’s loose hair, including a
“large chunk” of it, was found on the floor. Notably, Victim’s
blood was stained throughout the house—on the walls, the floor,
the staircase railing, and other items. Moreover, Folsom’s
sweatshirt had Victim’s wet blood all across the upper chest
area. In light of this physical evidence from the crime scene as
well as Victim’s extensive injuries, we see no reasonable
likelihood that the jury would have concluded that the State
failed to disprove that Folsom’s force against Victim was
“necessary to prevent death or serious bodily injury.” See Utah
Code Ann. § 76-2-402(1)(b).
¶57 Additionally, Folsom’s prejudice arguments focus too
narrowly on the supposed fatal blow rather than on the overall
magnitude of his force against Victim. He suggests that Victim’s
fatal injury could have been the result of a single impact, like a
fall or by hitting her head on a door molding. In support, he
explains that Victim had no skull or facial fractures, that no
weapon was used, and that Victim’s injuries were consistent
with mutual combat. Though the medical examiner
acknowledged that two lacerations at the back of Victim’s head
could be explained as the result of falling backward into an
object, he also testified that the nature and extent of Victim’s
injuries were consistent with her having been involved in an
altercation and that “this is not something that she could have
done accidentally.” Rather, he concluded in his autopsy report
that Victim “died as a result of blunt force injuries of the head
sustained when she was beaten by an assailant.”
¶58 Folsom admits that he caused Victim’s injuries, but in
arguing that the assumed errors prejudiced him, he does not
20160739-CA 23 2019 UT App 17State v. Folsom
address the location of those injuries. Extensive backside injuries
to her body, arms, hands, and head are less consistent with
Folsom’s theory that Victim merely fell backward once. Instead,
the backside injuries are more consistent with the State’s theory
that Folsom struck Victim when she faced away from him and
when she was curled up protectively on the ground.
Considering the medical examiner’s testimony as a whole, along
with the bloodstains on Folsom’s sweatshirt and throughout the
house, the jury was not reasonably likely to have concluded that
Folsom caused Victim’s fatal injury inadvertently or that
Victim’s fatal injury was the unfortunate consequence of a
limited and reasonable use of force.
¶59 Our conclusion holds even if we assume that the jury
concluded Victim was a violent person and was the first
aggressor that night. As an initial matter, a lot of evidence
supporting Folsom’s theory was already in the record. Folsom
testified that in the past Victim had struck him, thrown things at
him, and once pulled a gun on him, and that not only had he
called police about her nine different times, but that he had once
obtained a protective order against her and that on one occasion
Victim was actually charged with domestic violence. In the
context of this already admitted evidence of Victim’s violent
propensity, Folsom sought to introduce additional proffered
evidence of Victim’s other attacks against him, which included
Victim pulling his hair and beating him with various objects.
Supra ¶¶ 31–32.
¶60 The proffered evidence was mostly cumulative of his
testimony regarding Victim’s past treatment of him, and the jury
already understood from other admitted evidence that Victim
and Folsom’s relationship was volatile. And, in any event, there
is no evidence reasonably supporting the conclusion that the
force Victim used against Folsom—punches—on December 15,
2011, threatened Folsom with death or serious bodily injury and
that therefore Folsom feared for his life and his use of force
20160739-CA 24 2019 UT App 17State v. Folsom
against Victim was necessary to prevent death or serious bodily
injury. See Utah Code Ann. § 76-2-402(1)(b). 9 In other words,
even if the jury had heard additional evidence of Victim’s “prior
violent acts or violent propensities” and of “patterns of abuse or
violence” in Victim and Folsom’s relationship, the jury’s
determination regarding the reasonableness of Folsom’s force
would not be reasonably likely to have changed. See id.§ 76-2-402(5)(d), (e).
¶61 In short, the evidence overwhelmingly shows that
Folsom’s response was not measured and appropriate,
regardless of whether the jury concluded Victim had a violent
personality or was the first aggressor that night and regardless
of whether the jury concluded Folsom used nonlethal force
against her in the past. Folsom has not shown that, but for the
claimed errors and deficient performance of counsel, the
evidentiary picture would have been altered in a meaningful
enough way. That is, there is no reasonable likelihood that the
jury would have concluded that the State failed to prove beyond
a reasonable doubt that Folsom was not justified in using against
Victim the amount of force that he used. As a result, we decline
to reverse Folsom’s conviction based on these alleged
evidentiary errors and ineffective assistance of counsel.
9. See also 2 Wayne R. LaFave, Substantive Criminal Law § 10.4(b)
(3d ed. 2017) (explaining that “[p]ast violent conduct of the
assailant known by the defendant is also relevant in assessing
what the defendant reasonably believed was the quantum of risk
to him” and that generally “deadly force may only be used
against what is reasonably believed to be deadly force”); id. (“He
may justifiably use deadly force against the other in self-defense,
however, only if he reasonably believes that the other is about to
inflict unlawful death or serious bodily harm upon him (and also
that it is necessary to use deadly force to prevent it).” (quotation
simplified)); id. § 10.4(f) (“[O]ne may not, in self-defense, use
more force than reasonably appears to be necessary to avoid his
adversary’s threatened harm.”).
20160739-CA 25 2019 UT App 17State v. Folsom
II. Lesser Included Offense Instruction
¶62 Folsom contends that the trial court erred by refusing to
instruct the jury on negligent homicide as a lesser included
offense of murder. In so arguing, he maintains that he was
“entitled to an instruction on the lesser-included offense of
negligent homicide where there [was] a rational basis for a
verdict acquitting [him] of the charged offense [of murder] and
convicting him of the included offense.” Folsom further asserts
in his opening brief that the failure to provide the negligent
homicide instruction was harmful and thus requests a new trial.
¶63 The State responds that “any error . . . is harmless where
the jury was given a lesser-included manslaughter instruction
but the jury nevertheless found [Folsom] guilty of murder” and
asserts that, in this regard, State v. Daniels, 2002 UT 2, 40 P.3d
611, is dispositive of Folsom’s claim of error. In his reply brief,
Folsom agrees with the State. He states that in Daniels, “the Utah
Supreme Court . . . ruled that, where a jury has rejected a
lesser-included offense, a defendant cannot show harm for a trial
court’s failure to instruct the jury on a lesser-included offense of
the rejected lesser-included offense.” See generally Daniels, 2002
UT 2, ¶ 28; State v. Allen, 839 P.2d 291, 302 (Utah 1992)
(concluding that the failure to give a lesser included offense
instruction of negligent homicide was harmless because the jury
convicted on murder even though it was also instructed on the
lesser included offense of manslaughter); State v. Gotschall, 782
P.2d 459, 463–64 (Utah 1989) (holding that if a jury is instructed
on second degree murder and manslaughter and convicts the
defendant of second degree murder, even if the trial court’s
failure to instruct the jury on negligent homicide was in error,
such error is harmless), abrogated on other grounds by State v.
Doporto, 935 P.2d 484 (Utah 1997).
¶64 In light of this precedent, Folsom requests only that, “in
the event that this Court reverses the case for a new trial on
other grounds, . . . the order include an instruction that the trial
court provide a negligent homicide instruction upon retrial for
20160739-CA 26 2019 UT App 17State v. Folsom
the reasons stated in [his] opening brief.” Given Folsom’s
agreement with the State on this point, and because we have
determined that Folsom’s other claims of error do not warrant
reversing this case for a new trial, we need not further address
Folsom’s argument regarding the jury instructions.
CONCLUSION
¶65 Although Folsom raises a number of claimed errors on
appeal, he has not shown that those claimed errors prejudiced
him. As a result, we decline to reverse his conviction and
therefore affirm.
20160739-CA 27 2019 UT App 17