State v. Haar

2021 UT App 109THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
GAVIN MICHAEL HAAR,
Appellant.
Opinion
No. 20200261-CA
Filed October 15, 2021
Fifth District Court, Cedar City Department
The Honorable Keith C. Barnes
No. 181500754
Gregory W. Stevens, Attorney for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee
SENIOR JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred. 1
APPLEBY, Senior Judge:
¶1 Gavin Michael Haar appeals his convictions for murder
and child abuse relating to the death of his then-girlfriend’s two-
year-old son (Victim). Haar points to two purportedly
problematic aspects of his trial, which he argues entitle him to a
new one: witness testimony offering opinions on the veracity of
Haar’s multifarious stories of how Victim received his fatal
injuries, and a few sentences of the prosecutor’s closing
argument. But these challenges are unpreserved, and because we
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
State v. Haar
conclude that Haar cannot demonstrate prejudice by showing a
reasonable likelihood of a different outcome even without the
purportedly improper testimony and closing argument, we
affirm.
BACKGROUND 2
The Living Circumstances
¶2 Haar began a “sexual relationship” with Victim’s mother
(Mother) in April 2018. At the time, she had four children, the
youngest of whom was two-year-old Victim. At first, Haar
attempted to establish a positive relationship with each of
Mother’s children, and “treated them well in front of [her].” At
some point, an off-and-on arrangement began in which Victim
lived with his biological father in Washington for “a number of
months,” and then in Utah with his paternal aunt (Aunt) and her
family. Aunt had three children, one of whom was close in age
to Victim, and the two cousins regularly played together while
Victim was staying at Aunt’s house.
¶3 In May, shortly after Mother began dating Haar, she and
Haar retrieved Victim from Washington and all three of them
moved to Utah to live with Aunt because “they didn’t have a
place to go.” Prior to that, Aunt had met Haar only once, and
“really didn’t know him.” A few days after they had settled in at
Aunt’s house, Aunt began noticing that “Haar was very angry”
and became “easily irritated” with Victim, sometimes screaming
at him to “shut the F up.” In particular, Aunt observed that on
2. “We recite the facts in the light most favorable to the jury’s
verdict, and we present conflicting evidence as necessary to
understand issues raised on appeal.” State v. Black, 2015 UT App
30, ¶ 2, 344 P.3d 644.
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these occasions, Haar often would “grab [Victim] by the arm,
yank him up and drag him down the hallway into his and
[Mother’s] room.” Then Aunt would hear Victim “screaming out
of nowhere, horribly,” and she would attempt to intervene by
“bang[ing] on the door, trying to get in the room,” but she could
not enter because the door was locked. Aunt also observed that
Mother did not personally discipline Victim—indeed, Aunt
noted that “[s]he never disciplined” “any of her kids”—and
when Victim misbehaved Mother simply asked Haar, “Are you
going to do anything?” According to Aunt, although Mother
suggested that Haar “needed to be the one to do it,” Mother also
went “back and forth” and at points complained that Haar was
“too aggressive” in disciplining Victim. Aunt also observed Haar
“roughhousing” with Victim because Haar thought Victim was
“a sissy, so he needed to be toughened up.” But these
interactions “always ended the same” way: with Victim “crying
because he would hit his head really hard . . . from being
shoved.”
¶4 After approximately two weeks, Aunt asked Haar to
move out but told Mother and Victim they were “welcome to
stay.” Nevertheless, Mother “left with [Haar] and took [Victim]
with her.” The trio moved into a friend’s (Friend) house; Friend
had known Haar for “[r]oughly five months” and had only
known Mother while she and Haar were together. Friend took
them in despite not wanting Haar there because “all [she]
wanted to do was help [Victim]” and “they kind of were a
package deal.” They stayed at Friend’s basement apartment for
one week, during which time Friend noticed multiple bruises on
Victim. Haar offered several explanations for the bruising,
including that “the dog hit [Victim] and he fell over” and that
Victim “fell off the couch.”
¶5 On Friday of the week they stayed with Friend, Mother
worked the graveyard shift at a local grocery store, where she
“had just started a job,” and during the day on Saturday
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“everybody [was] home.” On Saturday night, while Mother was
again at work, Haar sent her a text message that said, “He hit his
head pretty good on the floor.” A few seconds later, Haar sent
another message: “Got another bruise. We’re gonna have to
make up this boy.”
¶6 On Sunday, Friend, Friend’s daughter, Mother, Haar, and
Victim spent five to six hours playing at a local lake. At one
point, Victim “got a little tired,” and Friend “stayed with him on
a blanket” while he rested. Friend did not notice bruising on
Victim during the trip to the lake, apart from “one little light”
bruise on his face. But the next day—Monday—Friend saw
Victim in the bathtub and noticed that “he was covered in
bruises . . . that [were] not there 24 hours before.” Friend
approached Mother and asked whether she had seen the bruises,
Mother responded affirmatively, and Friend “left it at that.”
¶7 At some point later on Monday, Mother apparently left
the house, during which time Haar sent her a series of text
messages. At 5:12 p.m., he wrote, “You need to get home now,”
followed a few minutes later by, “Babe it’s [Victim].” Then, at
5:28, Haar texted Mother, “You fucking went further th[a]n you
were supposed to. Get the fuck home now. You[’re] done with
the truck never again. I’m fucking livid. And your son is about to
get an ass beating.” Mother replied, “I didn’t have my phone I’m
on the way. Sorry.”; to which Haar retorted, “No I’m fucking
pissed I said to Smith’s only. You[’re] never getting the truck
again.”
The Night of the Murder
¶8 Mother was scheduled to work another midnight shift on
Monday night and left Victim in Haar’s care. Friend noticed
nothing unusual about Mother’s demeanor as she prepared for
work that evening, and noted that it was “just a normal night.”
After Mother left at around 11:45 p.m., Friend and Haar each
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smoked a cigarette and drank a beer, and Friend went to bed
around midnight.
¶9 Mother began her shift just after midnight, by which time
it was Tuesday morning. At 12:35 a.m., Haar called Mother but
she did not answer; instead she sent Haar a text message at 12:36
stating, “Can’t talk, text me.” A few seconds later Haar
responded via text, “Get home now. Emergency [Victim] not
breathing.” Mother responded, “Okay.” Haar then texted
Mother, “Anyone ask about bruises we got the[m] four
wheeling.” 3 This entire text exchange occurred in less than two
minutes.
¶10 At 12:39 a.m., Haar texted Mother, “I’m calling the cops,”
and at 12:40, he called 911. Haar gave the dispatcher his address,
but when asked for his phone number, Haar responded, “That’s
not important right now. What’s important right now is my
girlfriend’s son isn’t breathing. We had a four-wheeler accident
two days ago, and he says he’s been hurting in his stomach and
3. This is the first of many references in the record to a narrative
in which Victim allegedly sustained his injuries from an accident
while he and Haar were riding a “four-wheeler.” While “four-
wheeler” is in some sense an ambiguous term that can mean any
“vehicle with four wheels,” see Four-wheeler, Merriam-Webster, h
ttps://www.merriam-webster.com/dictionary/four-wheeler [http
s://perma.cc/YSE2-HD2J], the term is also a colloquialism for an
all-terrain vehicle, or ATV, see, e.g., Gantz v. Wayne County
Sheriff’s Office, 513 F. App’x 478, 479 n.2 (6th Cir. 2013) (“‘Four-
wheeler’ is a term commonly used to refer to all-terrain
recreational vehicles (also known as ATVs).”). We interpret the
references in the record as incorporating the latter definition.
Accordingly, in this opinion we maintain the original
nomenclature when quoting directly from the record, but
otherwise use the term “ATV accident.”
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everything, but we thought he would be okay.” The dispatcher
told Haar she was paging an ambulance, then asked a few
questions about the alleged ATV accident. Haar told the
dispatcher where the accident had allegedly occurred and
indicated that he and Mother did not bring Victim to a hospital
because he had only “minor bumps and bruises.” The dispatcher
instructed Haar on how to administer cardiopulmonary
resuscitation (CPR) until emergency responders arrived.
¶11 After being notified of the 911 call, two police officers
quickly made their way to the scene. As the first responding
officer (Officer) arrived, Haar was “running out of the house
with [Victim] in his arms” and “screaming at [the officers] to
save him.” Officer administered CPR until paramedics arrived,
but while he was doing so, Haar “kept trying to get [Officer’s]
attention” to tell him about the ATV accident. Haar told Officer
that he had been riding an ATV with Victim when it overturned;
Haar stated that he had been “thrown free” but Victim was
pinned underneath the vehicle, and Haar “used super human
strength” to lift it off of him. Although the situation was “fairly
chaotic,” Officer noticed that Victim had a “pretty extreme
bruise . . . under his left eye” and “some other bruising to his
face,” but there were “no scrapes, no abrasions” that would have
been consistent with an ATV accident. Because of these apparent
inconsistencies, as well as Haar’s demeanor, “red flags started
going off” in Officer’s head. Officer continued administering
CPR until paramedics arrived.
¶12 Meanwhile, Friend’s daughter woke her up at 12:55 a.m.,
and Friend saw “blue and red lights” shining through the
window of the apartment. During the roughly fifty minutes
Friend was asleep, she did not hear any noises—despite being a
“light sleeper” and “shar[ing] a wall” with the bedroom that
Mother, Haar, and Victim occupied together. She immediately
ran outside and saw Victim “laying on the driveway,”
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surrounded by police and emergency responders. By that point,
Mother had also arrived.
¶13 Paramedics could not revive Victim, and he was
transported to the hospital, where Haar again told the story of
the alleged ATV accident to the treating physician and others as
Victim was “getting . . . worked on.” The emergency physician
who led Victim’s treatment observed “some odd bruising to
[Victim’s] abdomen,” and that his “abdomen was distended”—
meaning that it was “protruding out more than [one] would
anticipate.” Victim still did not have a detectable pulse at the
hospital, and after forty-eight minutes of medical professionals
attempting to resuscitate him, Victim was declared dead.
Because Victim’s death was “unanticipated,” and based on the
“traumatic” injuries he had sustained, the treating physician
notified the Utah Office of the Medical Examiner (OME).
¶14 After Victim was pronounced dead, a detective
(Detective) arrived at the hospital, and Officer expressed his
concerns regarding the inconsistences he had noticed between
Victim’s observed injuries and the ATV accident story Haar
repeatedly told. Detective examined Victim and observed
“extensive bruising over his . . . body,” indicating that the
“trauma . . . he experienced was obviously significant.” Detective
approached Haar and Mother and introduced himself as the
investigating detective. Haar “immediately and very
aggressively and very gruffly. . . shouted, ‘Why?’”
¶15 Once Haar had “calmed down,” he and Mother
accompanied Detective to a “quiet room” in the hospital “for
family members . . . going through this type of situation.” By
that time, an OME field investigator (Field Investigator) had
arrived, and he and Detective began questioning the couple.
Haar “answered every single one of the questions,” including
those directed toward Mother. When Mother tried to speak,
Haar would “physically hush” her and “answer for her,” even
20200261-CA 7 2021 UT App 109State v. Haar
for personal questions such as her name and date of birth. Haar’s
initial story during the questioning was that they had gone
camping the prior Thursday night and then drove off-road on
Friday afternoon. Haar said he had been driving the ATV with
Victim, while Mother followed in Haar’s car. Haar said that
during the ride, he took “a corner too sharp” and the ATV
overturned, causing him to be ejected while Victim became
pinned underneath the vehicle. Detective immediately thought
that this explanation “seemed very improbable” because, based
on his understanding of “physics,” it would be highly unlikely
for an adult male to be thrown from the vehicle while a much
smaller child would remain “stuck to the four-wheeler and roll[]
with it.” Haar said Victim “didn’t appear to be seriously injured”
after the accident, and did not display any symptoms until
Sunday, when he “indicated that his tummy hurt” and “vomited
a couple of times.” According to Haar, Victim “continued to
vomit and be ill” on Monday, vomiting again “around
midnight” “shortly after [Mother had] left for work.” After
cleaning Victim, Haar asked Victim if he was alright, to which
Victim supposedly responded, “I okay.” Haar then left Victim
“on the bed watching a movie while he went outside to smoke a
cigarette,” and when he returned Victim was “unresponsive.”
Haar thought Victim was “choking on vomit,” so Haar “slapped
him several times on the back . . . in an attempt to clear his
airway.” Haar also described feeling a “distinct heartbeat” at
that time.
¶16 Detective decided it would be best to conduct
more formal interviews with Mother and Haar, and
suspended questioning. But before leaving, he and
Field Investigator explained the typical process, including
that Victim’s body would be transported to the OME in Salt
Lake City for an autopsy. In the middle of their
routine description of what would occur, Haar interjected, “We
20200261-CA 8 2021 UT App 109State v. Haar
don’t want an autopsy. . . . We want [Victim] to be cremated as
soon as possible.” 4
The Investigation
¶17 After concluding the discussion with Haar and Mother,
Field Investigator examined Victim’s body, observing
“pronounced and numerous bruises of all shapes and sizes” on
Victim’s face, chin, neck, chest, and abdomen. In particular, he
noted “very dark bruising on [Victim’s] forehead that went
down around his left eye,” “a really distinct bruise on the upper
lip,” “linear bruising along the jaw line,” numerous “small,
circular bruises all over the abdomen,” and “three really distinct
. . . circular bruises around the back that were very consistent
with finger marks.” Victim’s body was then transported to the
OME in Salt Lake City for an autopsy.
¶18 The next day, a forensic pathologist medical examiner
(Examiner) conducted an autopsy, witnessed by Detective.
Examiner immediately noticed multiple bruises on Victim’s
face—some of which were “very large”—including on the center
of his forehead, his eyebrows, his cheek just below his left eye,
and his lip. Examiner opined that several of these injuries were
consistent with someone grabbing Victim’s mouth and
obstructing his airway. For instance, Examiner noted a long
bruise straddling Victim’s jaw line that was “consistent with
pressure applied from the finger pressing in that area.” There
also were numerous “petechial hemorrhages” on Victim’s right
and left cheeks and each eyelid, which are usually caused by
“pressure buildup” and could result from several things, such as
vomiting; but based on the other injuries, Examiner concluded
4. Field Investigator’s recollection of these remarks had slightly
different phrasing, but the substance was essentially the same.
20200261-CA 9 2021 UT App 109State v. Haar
that the hemorrhages likely resulted from Victim trying to
breathe while someone obstructed his mouth and nose.
¶19 What was “most striking” to Examiner were the “multiple
small bruises across [Victim’s] abdomen and chest.” These
bruises were “usually discrete [resulting] from impact with
round surfaces”—patterns and placement indicating that the
bruises came from impacts with “knuckles or fingertips.” Some
of these bruises also had “overlapping” abrasions. And on
Victim’s back there were “three discrete bruises lined up” in a
manner “consistent with a grab mark [from] three fingers
applying pressure.” Examiner found it “unlikely” that the
abdominal bruising would have come from “innocent playing,”
and contrasted these with lighter bruises on Victim’s hand,
knees, and shins, which were more indicative of “normal play.”
¶20 Examiner also discovered that “some but not all of the
exterior bruises had corresponding injur[ies] on the inside” of
Victim’s body. There was “a bruise on the back side of his liver,”
which caused his liver to become “pale” from blood loss—as
opposed to the “reddish brown color” of a healthy liver. The
“position and orientation” of the liver bruising indicated that
“blunt force trauma” had been applied that made Victim’s liver
“slap against” his ribs. Victim also sustained four distinct tears
to his mesentery 5 and an “inch-and-a-half long” tear to his small
intestine. Examiner described the tears in the mesentery and
small intestine as “very unusual finding[s],” evincing a “blunt
impact . . . from the front” that compressed those organs
between the point of impact and the spine, causing them to
5. Examiner described the mesentery as a “sheet” of fat tissue
“attache[d] to the large intestine and . . . small intestine.” Its
anatomical role is a “supporting structure for blood vessels to
come out to the small and large intestine, absorb nutrients, and
get those nutrients back into the blood stream for [the] body.”
20200261-CA 10 2021 UT App 109State v. Haar
tear—something that would require “a lot of impact” from a
“crushing type injury.” According to Examiner, these types of
injuries typically are found in victims of motor vehicle accidents,
but he had also witnessed them in child abuse or domestic
violence cases including, for instance, when an abuser had
“stomped” someone. Because of the significant number of
arteries and veins leading from the mesentery into the bowel,
when a tear occurs there will be “bleeding into th[e] fat tissue of
the mesentery itself,” as well as “bleed[ing] externally into the
abdomen.” As a result, Examiner recovered “about 200
milliliters” of blood from Victim’s abdominal cavity, which did
not include additional blood that was inside the organ tissue
itself. As a two-year-old, this would have comprised “about one-
fourth of [Victim’s] total blood volume.”
¶21 In addition to the abdominal and facial injuries, there
were several injuries not directly tied to the fatal blows. Inside
Victim’s mouth, his frenulum 6 was “torn or ripped,” and he had
partially bitten through his tongue. It also was apparent from
other hemorrhaging on Victim’s scalp that his hair had been
pulled out in several places, causing “spots where there [was] no
hair whatsoever.” In addition, Examiner observed “a stretch tear
from pulling” on Victim’s genitalia, and bruising that indicated
“pinching of the scrotum.”
¶22 Based on the observed injuries, Examiner concluded “to a
reasonable medical certainty” that Victim’s death was caused by
“blunt force injuries [to] the torso,” and the manner of death was
homicide. Examiner also ruled out an ATV accident as the cause
of death based on “the distribution of the injuries, the
6. The frenulum, as described by Examiner, is a “little bridge of
tissue” connecting the inside of the upper lip to the gums
adjacent to the front teeth.
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appearance of the injuries, and the time interval that was given
between the time of the accident and his death.”
¶23 After Detective received these conclusions from
Examiner, Detective “did not believe that the four-wheeler
accident had even taken place.” The next day, after returning
from the autopsy—two days after Victim’s death—Detective
interviewed Mother and Haar separately at the police station. In
the midst of Mother’s interview, and prior to Haar’s, Haar and
Mother texted each other. In relevant part, the messages were as
follows:
Mother: They’re just doing their jobs.[]
Haar: I won’t let you gotta jail. If anything I hope I
do
Mother: I don’t want for either of us to go. It’s
gonna be okay
Haar: I hope so
Haar: It’s my fault he was bruised
Mother: It was an accident. Neither of us meant for
anything to happen
Haar: I was to[o] mean.
Mother: Stop.
¶24 In their interviews, they each maintained that Victim’s
injuries stemmed from an ATV accident, but aside from that core
similarity Mother and Haar gave “staggeringly different”
versions of what happened on the weekend before Victim died.
According to Mother, they started camping on Friday night,
whereas Haar stated that they spent Friday night at
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Friend’s house and did not leave for the camping trip until
Saturday evening. Mother asserted that the ATV accident had
occurred around noon on Saturday, prompting them to curtail
the camping trip, and that the family went bowling Saturday
evening and spent Saturday night at Friend’s apartment. Haar
stated that they did not leave for the camping trip until
after bowling on Saturday afternoon, that they went driving off-
road after dark on Saturday night, and that the accident
occurred around midnight. Haar had trouble remembering
the aftermath of the accident because “it all happened so
fast,” but he remembered Victim being pinned on his back
under the ATV. According to Haar, Victim was able to “[get]
up on his own” and hug Mother, and after he had stopped
crying they decided to camp instead of going into town to
“have him checked out.” He said that it took them “an hour and
a half” to decide what to do with the ATV and “make sure
[Victim] was okay,” and that it was 2:00 or 3:00 a.m. on Sunday
morning by the time they returned to their camp with the ATV
in tow, at which point they opted to sleep “under the stars on a
tarp.” And regarding the trip to the lake on Sunday afternoon
with Friend and her daughter, Mother said that Victim “played
in the sand and had fun,” whereas Haar said Victim was
“lethargic” and “slept for the four or five hours” they were at the
lake.
¶25 There were also “vast difference[s]” between Mother’s
and Haar’s accounts of the damage done to the ATV and what
happened to it after the accident. Mother stated that the ATV
“wouldn’t start” but that “she didn’t see any physical damage,”
and that they had left it at the accident site. Haar gave a more
elaborate account of the damage, asserting that the front tire of
the ATV had been “buckled out” and they needed to tow it with
“ratchet straps” back to where they camped that night, which is
where they left it. When Detective asked Haar about the location
of the ATV because he would need to examine it, Haar “put his
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head in his hands and put his head down,” which Detective
interpreted as “a sign of resignation.”
¶26 Haar also was questioned about the extensive bruising on
Victim’s body. Haar denied knowing about any potential cause
of injury other than the ATV accident and bruising that Victim
would get from Haar “roughhousing” with him. When
questioned about the facial bruising and the injuries to Victim’s
tongue, and whether he or Mother ever grabbed Victim by the
face, Haar stated, “No. She would never do anything—” and
then continued, “Never. She couldn’t—she wouldn’t hurt a fly.
She was as gentle as can be.” He elaborated, “I mean, she’s got
three other daughters that . . . come stay with us all the time on
the weekends.”
¶27 In another segment of the interview, Haar admitted that
Mother had told him several times that he was “being a little
hard” on Victim, to which Haar conceded he “probably
shouldn’t [have] hit him or smack[ed] his hand.” Haar also
admitted that he had spanked Victim with a wooden spoon on
one occasion while staying at Aunt’s house, and after that he
wrote Victim’s name on the spoon and used it as a visual aid to
indicate that Victim might be spanked if he did not do as Haar
told him to.
¶28 After the interviews, Detective collected Mother’s and
Haar’s cell phones. Haar’s phone was encrypted and
investigators were unable to examine it, but Mother’s was not
and investigators generated a “full forensic download” of her
phone’s contents, allowing Detective to examine the
aforementioned text messages between Haar and Mother.
¶29 At some point after the interviews, Haar and Mother left
Utah for Washington, which Mother said was to seek “support”
from her family there. In October, Haar was charged with one
count of murder and two counts of child abuse, and a warrant
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was issued for his arrest. They were arrested by authorities in
Washington in November, and transported to Utah. 7
¶30 Shortly after his arrest, Haar wrote “a very long and quite
obviously rambling letter” from jail. In this letter, Haar for the
first time alleged that Mother was the cause of Victim’s bruising
in the weeks before he died, as well as his fatal injuries. In
particular, Haar alleged that Victim started getting bruises
within “a couple weeks” of Haar and Mother taking care of him,
and that Mother was the one who “always had an excuse for [the
bruises].” One such instance was when Haar confronted Mother
during a diaper change about a bruise on Victim, and Mother
supposedly “said she had spanked him with a wooden spoon
[be]cause he wasn’t listening.” He also described occasions when
Mother supposedly “had her knee in [Victim’s] stomach” during
a diaper change, and kicked Victim in the stomach on the
Sunday before he died. Finally, he recounted that he had called
Mother when Victim first became unresponsive and she
allegedly “begged [him] to say it was from the four[-]wheeler,”
and averred, “I ended up making up a lie [be]cause I was scared
for [Mother] more th[a]n myself.”
¶31 Haar wrote a second letter from jail on March 5, 2019. He
began by asserting, “Everyone has it all wrong. Yes I lied, yes I
have had a bad temper now and then. But I did not and never
have beat [Victim]. . . . You see [Mother] is the one that did these
things to [Victim].” He also reversed course from the previous
letter by stating that he “[o]nly once . . . spank[ed] [Victim] with
a wooden spoon,” causing a “round mark on his butt.” Haar also
gave multiple explanations—some old and some new—for how
Victim had sustained various injuries in the days before his
7. Mother was arrested also and charged with obstruction of
justice and child abuse; she pleaded guilty to those counts and
later testified against Haar at trial.
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death. He described that a dog had “r[u]n over” Victim, causing
a bruise below his eye; that Victim had fallen off of a rock wall at
a playground, causing an injury to “the inside of his upper lip”;
and that he had fallen “off the couch and smacked his head on
the ground.” Haar also reiterated that Mother put her knee in
Victim’s stomach and kicked him on Sunday, that Victim
repeatedly vomited on Sunday evening and Monday, and that
he cleaned the vomit off Victim and himself. He also asserted
that, when he had texted Mother, “your son is about to get an ass
beating” while she was away, he “actually me[a]nt [the] dog.”
¶32 Haar wrote a third letter on March 6—the same day as the
preliminary hearing, when Detective, Examiner, Aunt, Friend,
and the emergency room physician each testified—in which he
recited a confession Mother supposedly made to him while they
were in Washington. According to Haar, Mother told him that
she was “disgusted at [the] sight” of Victim and “tried to
strangle him but [e]very time [she] felt him go limp [she] let go
and he would gasp for air.” She purportedly told Haar that she
“used [Victim] as a punching bag” and beat Victim in the
stomach because she “figured [it] wouldn’t show signs or
bruises [be]cause it’s a soft area.” Mother allegedly “kept beating
him until it seemed he just couldn’t cry anymore,” then stopped
to smoke a cigarette; by that time Haar had returned from a walk
and she told him that Victim had vomited and Haar needed to
clean it up while she got ready for work.
¶33 Haar also called his own mother while he was in jail; the
call was recorded, and as they discussed why he was there, his
mother read several text messages that Haar had sent her a few
hours after leaving the hospital on the night Victim died.
According to a transcript of the recorded phone call, the text
exchange (in relevant part) was as follows:
Haar: Mom, I don’t want to be here anymore. I
watched a two-year-old boy die last night. I feel
20200261-CA 16 2021 UT App 109State v. Haar
empty inside. What’s the point of going on
anymore? I love you, Mom.
Haar’s mother: Call me. You must not be on
Facebook. I’ve been going through hell. What
happened to the baby?
Haar: I don’t want to talk. I just want to be alone.
He is dead. We watched the doctors do everything
they could last night. I feel like it’s my fault. I
shouldn’t have left him alone. I shouldn’t have
gotten mad when he threw up on me and I pushed
him off the bed as I ran. I should have been gentle.
The Trial
¶34 There was a four-day jury trial in February 2020. The State
presented testimony from Aunt, Friend, Officer, Detective, Field
Investigator, Examiner, the emergency physician who treated
Victim, and Mother. The jury also heard the recording of Haar’s
911 call, several recordings from Haar’s interview with Detective
at the police station, the recording of Haar’s call to his own
mother, and the text messages between Haar and Mother, which
were read into evidence.
¶35 Aunt began by describing Victim as a “goofy baby” and
“a lovable little guy.” She discussed some of his favorite
playtime activities and food, noting in particular that he
“absolutely loved yogurt,” and when she “showed him [he]
could add cereal to it, it blew his mind.” She also recounted that
Victim and her own son, who were roughly the same age, often
played together, but that they were “complete opposites,” with
her son liking to “roughhouse” while Victim “just wanted to
cuddle.” In addition, Aunt testified about the short period that
Haar, Mother, and Victim lived at her house.
20200261-CA 17 2021 UT App 109State v. Haar
¶36 Aunt was present at the hospital on the night of Victim’s
death, and in her trial testimony she described multiple
explanations Haar gave for Victim’s bruising, including that the
ones on his mouth were from “falling at the park two days
before, and that the rest of the bruises on his chest and his
armpits were from [Haar] throwing him up in the air and
catching him.” Aunt approached Detective at the hospital—
which Detective’s testimony corroborated—and “was pretty
adamant that there had not been a four-wheeler crash.”
¶37 Friend testified about the week that Haar, Mother, and
Victim lived with her, and what she had observed. She also
testified that everyone was at home on both the Friday and
Saturday nights, and no one had talked about a camping trip.
¶38 Officer testified about his arrival on the scene and the
ensuing events, as described above. He also offered an opinion
he reached in the midst of the situation that the ATV story was
“not plausible,” and “nothing seemed right about the story or
the way [Haar] was telling it,” based on Haar’s demeanor and
inconsistencies between Victim’s injuries and typical injuries
from such accidents. In particular, Officer noted that “alarms just
went off immediately” because Victim had bruising but “no road
rash, no scrapes, no cuts, no blood, [and] no loose skin,” and
Officer had never seen a vehicular accident “where there wasn’t
some kind of an abrasion or scrape to go along with the bruises.”
Officer described Haar’s demeanor when he was administering
CPR as “very animated, very over-the-top,” and “dramatic,” but
at the hospital Haar was notably “calm.” In contrast to Mother,
who was “just quiet and calm and level” and “didn’t have a lot
to say,” Haar was “outgoing and wanted to answer any
questions that were asked.” Officer concluded by saying, “The
way [Haar] kept trying to get my attention while I was doing
CPR has never left me. . . . I can’t imagine a parent acting like
that to . . . a person that’s giving emergency lifesaving aid to . . .
his girlfriend’s son.”
20200261-CA 18 2021 UT App 109State v. Haar
¶39 The emergency room physician testified about the life-
saving efforts in which he and his treatment team engaged. He
also described his observations of Victim’s abdomen, including
“some odd bruising” and abdominal distension—a condition
commonly caused by internal bleeding or gas in the intestines.
The physician offered his view that Victim’s abdominal injuries
“could be consistent” with being pinned by an overturned
vehicle, but that he “would have expected the child to be in a lot
more distress throughout that next day and have had some
significant repercussions . . . that would have manifested
themselves” before then.
¶40 Field Investigator testified about his general perceptions
of Haar during the hospital interview, describing him as
“jittery,” seemingly “trying to anticipate and make sure that he
answered [the] questions the way that he wanted them
answered.” Field Investigator also described Haar’s vehement
statements about not wanting an autopsy as “a really out of the
ordinary response.”
¶41 Examiner testified as an expert, providing his opinion on
how Victim likely would have acted after suffering the blows to
his abdomen and resulting internal injuries. Based on the four
tears in Victim’s mesentery, in addition to the other injuries,
Examiner opined that Victim’s blood loss would have been
“rather rapid.” And because the amount of blood exceeded 200
milliliters, “about one-fourth of [Victim’s] total blood volume” as
a two-year-old, Victim would have quickly gone into shock,
becoming “drowsy, lethargic and [then] unresponsive soon
thereafter.” Examiner further opined that Victim likely would
have been unresponsive within “[f]ive to ten minutes.” On cross-
examination, Examiner conceded that it could have taken “up to
an hour” for this to occur, but it was “more likely . . . a much
shorter time.” Also on cross-examination, Examiner opined that,
while it was possible for CPR administration to cause petechial
hemorrhages in some circumstances, “[i]n this particular
20200261-CA 19 2021 UT App 109State v. Haar
instance, because [Victim was] bleeding into his abdomen and
going to be in shock, . . . it’s even less likely that CPR” would
cause them.
¶42 Examiner was asked whether it was “medically possible”
for Haar’s version of events—Victim being able to utter “I okay”
and sit up and watch a movie shortly before becoming
unresponsive—to have occurred. Examiner responded that
“none of those activities would make sense” because Victim
would not have been able to converse and act normally after
sustaining those injuries. Victim likely sustained “multiple
blows,” which would immediately “cause pain” and prompt
Victim to “cry or scream”; he would not have been able to “go
about normal activity,” including “playing, or just sitting still
and being quiet,” after receiving them.
¶43 Detective testified extensively about his opinion that Haar
displayed a “clear pattern of lying” based on the “many, many
inconsistencies in his statements.” He offered his opinion that
Haar putting his head into his hands during the interview when
asked about the location of the ATV was “evidence that the story
was false.” Detective opined that Haar’s texts to his mother, as
recounted in the jailhouse phone call, showed he had a “guilty
mind” based on his statements of fault and remorse, as well as
his admission that he acted violently toward Victim. He likewise
opined that the texts between Haar and Mother on the day of
their interviews with Detective “point[ed] to a guilty conscience
and a belief that they were going to be held accountable for their
actions in this case.”
¶44 Detective also testified about the “fundamental shift[s]” in
Haar’s first letter from his previous narratives, including going
from stating that neither he nor Mother would hurt Victim to
directing toward Mother the blame for all of Victim’s injuries.
Detective identified another major inconsistency between the
first letter and other evidence: whereas Haar’s letter alleged that
20200261-CA 20 2021 UT App 109State v. Haar
Mother had “begged [him] to say it was from the
four[-]wheeler” when he called her after Victim became
unresponsive, in reality Mother “never answered” the call,
meaning that “[t]here was never a conversation on the phone at
that time between him and [Mother].”
¶45 Detective also described another inconsistency wherein
Haar stated at the police station that he had spanked Victim with
a spoon, then stated in the first letter that it was actually Mother
who had spanked Victim with the spoon, and then shifted again
in the second letter to stating that he was the one who hit Victim
with the spoon. Also, when describing Haar’s assertions in the
second letter, Detective opined that Haar was “coming up with
explanations just again and again and again” about how Victim
sustained various bruises and other injuries, and that he was
“starting to get his excuses mixed up with each other,” to the
point that “the same bruise now [had] different excuses behind
it.” He also offered his view that the narrative about Mother
supposedly kneeing and kicking Victim in the stomach on
Sunday represented Haar “trying to come up with an account to
explain how this could have happened . . . while not
understanding [the] timeline of how quickly . . . [Victim] would
have succumbed to those injuries.” And Detective offered his
conclusion that Haar was the only one who could have been “in
the room with [Victim] at the time the fatal injuries were
delivered.”
¶46 On cross-examination, defense counsel asked Detective
why he did not perform an in-depth follow-up investigation on
the allegations in Haar’s letters, as he had done with the ATV
accident narrative. Detective responded that there “was no
credibility to the new information” because it “came directly
from [Haar]” and no one else, and it was inconsistent with the
rest of the evidence gathered by that point. In particular, he
described how, by the time the third letter was received, “there
20200261-CA 21 2021 UT App 109State v. Haar
had been so many different versions of the narrative . . . that the
credibility was pretty low at [that] point.”
¶47 Mother rebutted the assertions made in Haar’s letters,
testifying that Haar “made up the lie about the four-wheeler
accident.” She also said she believed that Haar inflicted the
injuries that caused Victim’s death (although on cross-
examination by defense counsel she confirmed that she was
“only assuming” Haar killed Victim based on the circumstances,
and had no actual knowledge that he had done it).
¶48 Once the State rested, the defense presented its case,
during which Mother and Haar each testified. Haar admitted at
the outset that he had been untruthful about “[p]retty much
everything,” including the ATV story and “certain things about
the bruises.” But he maintained that this was because Mother
had “begged” him to lie prior to and during the 911 call. And he
claimed—for the first time at trial—that the reason Mother’s cell
phone showed she did not answer him on the night of Victim’s
death was that he had two cell phones at the time, and he had
called her “work phone” on one phone while simultaneously
being on the line with the 911 operator on his other phone. Haar
testified that he lied to “protect[]” Mother “at all costs,” because
if she were to be incarcerated he would lose his relationship with
her children. He also repeated his claims in the letters, with some
factual inconsistencies, that he had witnessed Mother’s violence
toward Victim on multiple occasions while they were living with
Aunt and Friend. Haar closed his testimony on direct
examination by stating that he “kn[e]w for a fact” that Mother
had “inflicted the injuries that ultimately resulted in [Victim’s]
death.” The defense also questioned Mother about the assertions
in Haar’s letters written from jail, and she denied saying or
doing any of the things he alleged in the letters, and denied
hurting Victim.
20200261-CA 22 2021 UT App 109State v. Haar
¶49 The final day of trial was devoted to closing arguments
and jury deliberation. At the beginning of the State’s closing
argument, the prosecutor stated:
You’ve heard testimony about little [Victim] . . . .
We learned a little bit about who he is. He loved to
be held, he loved to cuddle, . . . .
We learned that he was very gentle. He didn’t
enjoy roughhousing and wrestling as much as the
other boys, but would rather play with cars and
color. He loved Cheerios in his yogurt. He loved
playing with his cousin . . . . They played together,
slept together, laughed together.
The prosecutor concluded the State’s closing argument as
follows:
At two years old [Victim’s] life was cut far too
short. Too short for more hugs. Too short for more
Cheerios and yogurt. Too short for more laughs
with his cousin . . . , and this because of a man who
barely knew [Victim], his mom’s boyfriend who
had been in [Victim’s] life for a matter of weeks.
...
Enough truly is enough. Enough of the lies.
Enough explanations. Enough blaming someone
else for this murder. It is time for Mr. Haar to pay
the price for this vicious, heinous, and senseless
act. Hold Gavin Haar accountable for murdering
[Victim]. Find Mr. Haar guilty. Thank you.
¶50 After hearing the defense’s closing argument and the
State’s rebuttal, the jury went into deliberations. A little more
than two hours later, it returned a verdict of guilty on the
20200261-CA 23 2021 UT App 109State v. Haar
murder count and the first child abuse count, but acquitted on
the second child abuse count.
ISSUES AND STANDARDS OF REVIEW
¶51 Haar appeals, asserting that certain testimony the State
presented was improper because it “allowed [Detective and
Officer] to hold themselves out essentially as experts in
conducting investigations” when opining about Haar’s
credibility, which in turn “tainted” the evidence for the jury. He
also contends that the prosecutor’s closing argument improperly
appealed to the passions and prejudices of the jury, and urged it
to convict Haar on an improper basis. Haar acknowledges that
these challenges are unpreserved, and asks that we review them
through the lenses of plain error and ineffective assistance of
counsel. See State v. Johnson, 2017 UT 76, ¶¶ 18–19, 416 P.3d 443(noting that “failure to preserve an issue in the [district] court
generally precludes a party from arguing that issue in an
appellate court, absent a valid exception,” and recognizing the
“three distinct exceptions” of “plain error, ineffective assistance
of counsel, and exceptional circumstances”).
¶52 To persuade us that the district court has plainly erred, “a
defendant must establish that (i) an error exists; (ii) the error
should have been obvious to the [district] court; and (iii) the
error is harmful. If any one of these requirements is not met,
plain error is not established.” Id. ¶ 20 (quotation simplified).
And an ineffective assistance of counsel claim “raised for the
first time on appeal presents a question of law.” State v. Ring,
2018 UT 19, ¶ 18, 424 P.3d 845 (quotation simplified). To present
an issue for our review based on the constitutional
ineffectiveness of a defendant’s trial counsel, the defendant must
show that (1) trial counsel’s performance was “deficient” by
falling “below an objective standard of reasonableness” and (2)
this “deficient performance prejudiced the defense” by giving
20200261-CA 24 2021 UT App 109State v. Haar
rise to “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, 687–88,
694 (1984). “Failure to make the required showing of either
deficient performance or sufficient prejudice defeats the
ineffectiveness claim.” Id. at 700. 8
ANALYSIS
¶53 Although “[p]lain error and ineffective assistance of
counsel are distinct concepts,” they each “require the defendant
to demonstrate that the [alleged] error or deficiency resulted in
prejudice.” State v. Galindo, 2017 UT App 117, ¶ 8, 402 P.3d 8.
Indeed, “the prejudice analysis is the same under both a plain
error and ineffective assistance of counsel framework.” Id.(quotation simplified); accord State v. Johnson, 2017 UT 76, ¶ 21,
416 P.3d 443 (noting that the plain error harmfulness analysis is
“equivalent to the prejudice test applied in assessing claims of
ineffective assistance of counsel” (quotation simplified)). Thus,
8. The State asserts that Haar’s arguments fail at the outset for
inadequate briefing, giving us “reason alone to affirm.”
Appellate briefs “must explain, with reasoned analysis
supported by citations to legal authority and the record, why the
party should prevail on appeal.” Utah R. App. P. 24(a)(8). Our
supreme court has observed that “there is no bright line between
adequate and inadequate briefing,” and cautioned against
“lightly toss[ing] aside partially briefed but still discernable
arguments.” See Heslop v. Bear River Mutual Ins. Co., 2017 UT 5,
¶ 50, 390 P.3d 314. Although aspects of Haar’s brief could be
more fully developed, his arguments are certainly “discernable”
and supported by at least some citations to relevant legal
authority. Thus, we decline the State’s invitation to resolve the
case for lack of adequate briefing.
20200261-CA 25 2021 UT App 109State v. Haar
because “plain error and ineffective assistance of counsel share a
common standard of prejudice,” if we determine that Haar is
unable to make his showing on prejudice grounds, lack of
prejudice will prove fatal to each of his claims. See State v.
Martinez, 2021 UT App 11, ¶¶ 44–46, 480 P.3d 1103 (quotation
simplified). Accordingly, we move straight to analyzing whether
Haar sustained any prejudice from the transgressions he alleges.
¶54 “To succeed under either framework, [Haar] must show
that there is a reasonable probability that but for the alleged
errors, the result of the proceeding would have been different.”
See id. ¶ 44 (quotation simplified). Even assuming, without
deciding, that trial counsel should have objected to the
challenged witness testimony and the prosecutor’s closing
argument, or that the district court had a duty to intervene
absent an objection, Haar still must show that the results of his
trial likely would have been different absent these errors. This he
cannot do. Therefore, we conclude that he “cannot succeed
under the rubric of either plain error or ineffective assistance.”
See id. ¶ 41.
I. Witness Testimony
¶55 Haar first asserts that it was error for the district court
and trial counsel to allow the following testimony to be admitted
into evidence: Detective and Officer giving opinions about the
veracity of the ATV accident narrative, including Detective
testifying that he interpreted Haar placing his head in his hands
as a sign of resignation; Detective’s testimony about the
significance of assertions made in the text messages between
Haar and Mother; and Detective and Mother offering their
conclusions that Haar was the one who inflicted Victim’s fatal
injuries. And Haar asserts he was prejudiced therefrom because
Detective and Officer “were allowed to hold themselves out
essentially as experts in conducting investigations,” which in
turn “tainted” the evidence. But we agree with the State that “the
20200261-CA 26 2021 UT App 109State v. Haar
incriminating evidence [against Haar] was compelling—if not
overwhelming—even without the challenged testimony.”
¶56 First, even if Officer’s and Detective’s testimony about the
veracity of the ATV accident narrative was improper, it had no
conceivable effect on the verdict because, by the time of trial,
Haar had admitted that the story was untrue. Prior to trial, Haar
admitted in a handwritten letter to fabricating the narrative of
the ATV accident. He claimed that Mother had “begged” him to
say that Victim’s injuries came “from the four[-]wheeler,” and
claimed that he “ended up making up a lie [be]cause [he] was
scared for [Mother] more th[a]n [him]self.” Haar maintained that
position at trial, testifying that he had been untruthful about
“[p]retty much everything,” including the ATV story, but that he
had lied at Mother’s request. Given that the falsity of the ATV
story was thus an undisputed issue at trial, there is no
reasonable likelihood that Officer’s and Detective’s opinions to
that effect influenced the jury’s verdict.
¶57 Detective’s testimony offering his conclusions about
Haar’s text messages similarly were not necessary for the jury to
infer his guilt. The multiple inculpatory statements that Haar
made in his text messages needed no contextualization: he told
Mother that Victim had gotten “another bruise” and would need
“make up”; he told Mother that Victim was “about to get an ass
beating”; he suggested to Mother that if “[a]nyone ask[ed] about
the bruises we got the[m] four wheeling”; he stated, “It’s my
fault he was bruised”; and he told his own mother, “I feel like
it’s my fault. I shouldn’t have left him alone. I shouldn’t have
gotten mad when he threw up on me and I pushed him off the
bed as I ran. I should have been gentle.” These text messages
speak for themselves and are plainly inculpatory. In each
message, Haar was either communicating his own culpability
about causing injury to Victim, expressing feelings of remorse, or
both. Thus, even if Detective’s commentary on the significance of
the text messages had been excluded, there is no reasonable
20200261-CA 27 2021 UT App 109State v. Haar
probability that the jury would have viewed the content of the
messages differently.
¶58 The final category of testimony challenged by Haar—
Detective and Mother offering their conclusions that Haar was
the one who inflicted the fatal injuries—had no reasonable
likelihood of affecting the jury’s verdict. As the State points out,
this testimony was elicited on rebuttal after Haar had testified
that Mother was the one who had fatally injured Victim. It
would therefore hardly come as a surprise to the jury that
Mother and Detective disagreed and believed that Haar was the
guilty party.
¶59 And there was compelling—if not overwhelming—
evidence to support the jury’s verdict that Haar, not Mother, was
responsible for Victim’s injuries. Aunt testified that she directly
observed Haar being violent with Victim, including dragging
him down the hall and “roughhousing” to the point of making
Victim cry from hitting his head “really hard.” Both Aunt and
Friend testified to noticing bruising on Victim, and how Haar
always had a seemingly innocent explanation. As to Mother’s
behavior toward Victim, Aunt testified that she never witnessed
Mother be “hands on” toward Victim—to the contrary, Mother
“never disciplined” Victim, leaving that to Haar. Just hours
before Victim’s death, Haar texted Mother, “I’m fucking livid.
And your son is about to get an ass beating.” Later that night,
Mother left Victim in Haar’s care when she went to work. Friend
noticed nothing unusual about Mother’s demeanor, describing it
as “just a normal night.” After Friend went to bed around
midnight, Haar was alone with Victim until the emergency
responders arrived.
¶60 The State also presented overwhelming evidence that the
fatal injuries were inflicted during the timeframe Haar was alone
with Victim. Examiner testified in excruciating detail about how
Victim could have sustained his injuries and how quickly he
20200261-CA 28 2021 UT App 109State v. Haar
would have succumbed to them—up to an hour, but much more
likely in a matter of minutes. And the emergency room
physician gave similar, albeit less specific, observations and
conclusions. Examiner also described how, even if Victim had
managed to remain responsive for as long as an hour, he would
not have been talking or otherwise behaving normally during
the time between receiving the blows and losing
consciousness—a fact that contradicts all of Haar’s narratives,
including those he espoused at trial.
¶61 In addition, evidence of Haar’s behavior in the immediate
aftermath of Victim becoming unresponsive also could have
allowed the jury to infer guilt—even without Officer or Detective
overtly saying so. Officer described Haar as “very animated,
very over-the-top,” and “dramatic” when Officer responded and
was administering CPR; and the mere fact that Haar repeatedly
and assertively told the ATV accident story to Officer, other
emergency responders, and the treatment team at the hospital
speaks for itself—regardless of Officer stating that this gave him
“red flags.” Additionally, Haar’s repeated efforts to control the
narrative at the hospital—by “physically hush[ing]” Mother
when Field Investigator and Detective were questioning her,
answering questions for her, and demanding that the authorities
not perform an autopsy because they wanted Victim “cremated
as soon as possible”—all speak for themselves as well.
¶62 The State thus presented evidence that overwhelmingly
supported Haar’s guilt. We therefore conclude that Haar cannot
demonstrate a reasonable likelihood of a different trial outcome
without the challenged testimony, meaning that this challenge
fails to meet either the plain error or ineffective assistance tests.
II. Closing Argument
¶63 We likewise conclude that, even if the prosecutor’s
statements at closing argument should have prompted an
20200261-CA 29 2021 UT App 109State v. Haar
objection by trial counsel or intervention by the district court,
Haar suffered no prejudice. The challenged statements were a
minimal part of the State’s closing argument and rebuttal, and
the evidence itself was overwhelming.
¶64 Haar primarily points to the prosecutor’s references
during closing argument to Victim’s affinity for yogurt and
cuddling, as well as the prosecutor’s utterance directing the jury
to “[h]old Gavin Haar accountable for murdering [Victim]”
because it was “time for Mr. Haar to pay the price for this
vicious, heinous, and senseless act.” Haar argues that, by making
these statements, the State inappropriately diverted jurors’
attention from applying the law to the facts and instead
appealed to their passions, directing them to “put themselves in
[V]ictim’s place [and] take vengeance against” Haar. (Citing
State v. Wright, 2013 UT App 142, ¶ 41, 304 P.3d 887.)
¶65 “Generally speaking, in argument to the jury, counsel for
each side has considerable latitude and may discuss fully from
their viewpoints the evidence and the inferences and deductions
arising therefrom.” Wright, 2013 UT App 142, ¶ 39 (quotation
simplified). But a prosecutor’s remarks during closing argument
can be “improper” when they “divert[] the jury from its duty to
decide the case on the evidence,” see id. ¶¶ 38, 41 (quotation
simplified), and instead “unfairly appeal[] to the sympathies,
passions and prejudices of the jury,” State v. Campos, 2013 UT
App 213, ¶ 50, 309 P.3d 1160 (quotation simplified). This is
because, in a criminal trial, the jury’s “determination of guilt
must not be the product of fear or vengeance but rather
intellectually compelled after a disinterested, impartial and fair
assessment of the testimony that has been presented.” State v.
Todd, 2007 UT App 349, ¶ 21, 173 P.3d 170 (quotation simplified).
¶66 Nevertheless, “if proof of [a] defendant’s guilt is strong,
the challenged conduct or remark will not be presumed
prejudicial.” Campos, 2013 UT App 213, ¶ 67 (quotation
20200261-CA 30 2021 UT App 109State v. Haar
simplified). Instead, “we [must] consider whether, under the
circumstances of the particular case, the jury was probably
influenced by those remarks.” Id. (quotation simplified). “In
determining whether the jury was probably influenced by the
[prosecutor’s] inappropriate comments, we consider the strength
of the evidence supporting a defendant’s guilt and the strength
of the conflicting evidence . . . .” Id.; accord Wright, 2013 UT App
142, ¶¶ 41–42 (“In reviewing whether the jury was influenced by
the prosecutor’s statement, we consider the circumstances of the
case as a whole.” (quotation simplified)).
¶67 In this case, we need not decide whether trial counsel
rendered deficient performance—or whether the district court
committed plain error—in taking no action in response to the
challenged statements. Even assuming that some or all of the
prosecutor’s statements were improper, Haar has not established
prejudice.
¶68 To determine whether the purportedly improper
argument prejudiced Haar, we must compare “the strength of
the evidence supporting [Haar]’s guilt and the strength of the
conflicting evidence” to determine whether the jury was unduly
influenced to the point of prejudicing Haar. See Campos, 2013 UT
App 213, ¶ 67. And as we have discussed, see supra ¶¶ 56, 58–60,
the State’s evidence supporting Haar’s guilt was strong; the
conflicting evidence, on the other hand, was weak. The only real
conflicting evidence were Haar’s letters and his trial testimony,
which were each internally inconsistent with one another, and
also inconsistent with the logical arc of the rest of the evidence
presented at trial. As a result, we have no qualms concluding
that the jury was not unduly influenced by the prosecutor’s
remarks in this case.
¶69 Furthermore, this court has previously concluded—albeit
in a slightly different legal context—that a jury was not
influenced by a prosecutor’s improper comments when they
20200261-CA 31 2021 UT App 109State v. Haar
were made in “a single sentence during a closing argument and
rebuttal that fills fifteen transcript pages of otherwise
appropriate remarks.” See Wright, 2013 UT App 142, ¶ 42. The
outcome in Wright bolsters our conclusion here: Haar has
identified only a few sentences of the prosecutor’s closing
argument as problematic, falling at the end of twenty-six
transcript pages of otherwise appropriate closing argument and
rebuttal. Thus, such “isolated statement[s],” even if they did
urge the jury to convict for improper purposes, do not on their
own evince a reasonable likelihood that the jury would have
voted to acquit without them. See id. ¶¶ 42–43.
¶70 When everything is taken into consideration, “given the
overwhelming evidence of [Haar’s] guilt, he has not met the
requirement of demonstrating that the prosecutor’s comment
prejudiced him.” See State v. Cuaquentzi, 2015 UT App 311, ¶ 10,
365 P.3d 735 (quotation simplified). Because we have concluded
that the jury would have voted to convict “[w]ith or without”
the prosecutor’s remarks, see id., Haar’s claim respecting the
closing argument fails under either an ineffective assistance or
plain error framework. 9
9. Although we have concluded there was no prejudice in this
case based on the strength of the evidence tending to show
Haar’s guilt, we nevertheless are troubled by the prosecutor’s
utterance directing the jury to “[h]old Gavin Haar accountable
for murdering [Victim]” because it was “time for Mr. Haar to
pay the price for this vicious, heinous, and senseless act.” In our
view, these statements run dangerously close to directing the
jury to find Haar guilty based on “vengeance” rather than a
“disinterested, impartial and fair assessment of the testimony
that has been presented.” See State v. Todd, 2007 UT App 349,
¶ 21, 173 P.3d 170 (quotation simplified). And while we offer no
direct opinion on whether it was an obvious error or deficient
(continued…)
20200261-CA 32 2021 UT App 109State v. Haar
CONCLUSION
¶71 In this appeal, Haar has challenged his murder and child
abuse convictions on two bases: arguing that witness testimony
about his credibility was improperly admitted and that the
prosecutor inappropriately appealed to the passions and
prejudices of the jury during closing argument. Because neither
of these issues were preserved, and Haar asks that we review
them through the lenses of ineffective assistance of counsel and
plain error, Haar is required to show that he was prejudiced by
these purported transgressions. But Haar is unable to do so
because, given the overwhelming evidence of his guilt, he cannot
demonstrate a reasonable likelihood that the outcome of his trial
would have been different even without the challenged
testimony and statements at closing argument. Accordingly, we
affirm his convictions.
(…continued)
performance to allow such statements to be made at closing
argument, we offer a word of warning to prosecutors who use
tactics in closing argument that tend to “appeal to the passions
of the jury” by suggesting that it should return a guilty verdict
“out of vengeance or sympathy for the victim rather than based
on what the facts and the law require[].” See State v. Campos, 2013
UT App 213, ¶ 52, 309 P.3d 1160. “Such a strategy during closing
argument is a highly risky and improper rhetorical device that
should be scrupulously avoided. In making such statements,
counsel runs the risk that jurors will feel obligated to seek
revenge for the victim.” Todd, 2007 UT App 349, ¶ 21. We
therefore caution Utah prosecutors not to employ such language
in their oral advocacy before a jury.
20200261-CA 33 2021 UT App 109