State v. Henfling

2020 UT App 129THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JAMES ENOCH HENFLING,
Appellant.
Opinion
No. 20190150-CA
Filed September 11, 2020
Third District Court, Silver Summit Department
The Honorable Patrick Corum
No. 161500049
Ann M. Taliaferro, Attorney for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES KATE APPLEBY and DIANA HAGEN concurred.
MORTENSEN, Judge:
¶1 James Enoch Henfling was convicted of murder, felony
murder, and felony discharge of a firearm after firing a single
shot from his pistol into the face of his sister’s friend during a
physical altercation involving the three of them. Henfling
appeals his convictions. He argues that the trial court erred by
not dismissing his murder charge for insufficient evidence, not
dismissing his felony-discharge-of-a-firearm conviction as
legally invalid, and denying his motion for a new trial because of
erroneous jury instructions and prosecutorial misconduct. We
affirm.
State v. Henfling
BACKGROUND 1
¶2 Late one evening, Henfling received a call from his sister
(Sister) letting him know that she was visiting from out of state
and was in Park City, Utah. During the call, Henfling thought
Sister sounded both drunk and high on drugs. Worried that she
might become a target for sexual assault, Henfling armed
himself with a knife, a taser, and a pistol before he, his fiancée
(Fiancée), and their three-year-old daughter drove from their
residence in Midvale to Park City. They arrived in Park City at
about 1:00 AM and Henfling met with Sister and her friend
(Victim) at a parking garage.
¶3 Sister was intoxicated and Victim was “really drunk” but
was “really happy, [and] nice” and invited everyone back to his
condominium. Henfling followed Sister and Victim to the
condominium complex and parked “farther off, down the
parking lot.” The group entered the condominium where Victim
briefly introduced one of his roommates (Roommate), who then
retired to her bedroom for the night. Victim opened a fold-out
couch bed in the living room where he slept and offered to let
everyone stay the night. Fiancée sat on the corner of the bed with
her sleeping daughter, while Sister, Victim, and Henfling sat in
the kitchen. The group talked while Henfling and Victim drank
alcohol.
¶4 As the night progressed, Victim and Henfling discussed
guns. Victim retrieved his pistol from an ottoman in the living
room, and Henfling removed his pistol from the holster on his
hip to compare firearms. No threats were made while the guns
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.”
State v. Thompson, 2017 UT App 183, ¶ 2 n.3, 405 P.3d 892(cleaned up).
20190150-CA 2 2020 UT App 129State v. Henfling
were out; Henfling and Victim were merely “talking shop about
guns,” and then they put away the guns.
The Murder
¶5 Later, Sister called her boyfriend, who was out of state, to
let him know she had safely arrived in Utah. During their
conversation, Victim took the phone from Sister and threatened
her boyfriend, who—according to a social media post made
earlier by Sister—had cheated on her. Victim stated that he had
been in the military and would kill the boyfriend for his
treatment of Sister. Henfling joined in, berating and threatening
the boyfriend.
¶6 After the phone call, Sister was angry and wanted to
leave. Henfling also wanted Sister to leave and go home with
him, fearing that if she stayed, Victim would “take advantage of
her” in her inebriated state. Victim, however, did not want Sister
to leave and argued with Henfling, yelling and at one point
pushing Henfling against the wall by his throat. Fiancée yelled at
Victim to stop, and the quarrel ceased.
¶7 Fiancée retrieved the keys to their vehicle and informed
Henfling she was going to the truck with their daughter and that
“he needed to get ready so that [they] could leave.” She left the
condominium, followed by Sister, while Henfling remained
inside with Victim. Fiancée went to the truck and Sister went to
Victim’s car to retrieve her belongings. Sister then returned to
Victim’s condominium. After some time, Henfling came to the
truck and took the keys from Fiancée, stating that they weren’t
leaving yet, and returned to the condominium. Sister came down
to sit in the truck with Fiancée and attempted to call Henfling,
but her phone would not work. Sister then returned to Victim’s
condominium to get the keys from Henfling. Henfling and Sister
“had words” over him retaining the keys and his intent to drive
them home in his intoxicated state.
20190150-CA 3 2020 UT App 129State v. Henfling
¶8 During the argument, Henfling became “loud and
aggressive” and was rude to Sister. The noise woke Roommate
who remained in the bedroom trying to get back to sleep. Sister
testified that Victim interjected himself into the argument and
Henfling and Victim began to fight and choke each other. Sister
attempted to intervene, and Victim punched her in the side of
the face. Then she tackled both men to the floor in the living
room between the bed and the ottoman. Victim landed slightly
reclined against the bed and began to kick or press his bare foot
into Henfling’s face. Sister, who was between the two, tried to
further intervene by pushing them apart and punching Victim in
his face. After Sister hit him, Victim looked blankly at her.
Henfling removed his pistol from his locking holster, 2
chambered a round, and shot Victim one time in the forehead as
Victim remained reclined on the floor. Henfling later stated, “I
guess I should have shot him in the foot or the hand or just in the
air, but natural reaction, being a hunter . . . you shoot to kill. . . .
So, it’s what I did.”
¶9 Roommate heard the gunshot and hid in her closet,
unsure what had happened but thinking that perhaps Victim
“took his gun and shot through the roof to try to take [the
arguing] people out of the [condominium].” Roommate
remained hidden for several minutes until she heard Henfling
and Sister leave. After that, Roommate exited the bedroom to see
what had transpired. She walked into the hallway and looked to
the living room, but she stopped when she saw that Victim was
lying on the floor with his feet protruding from behind the
pulled-out bed and heard him “snoring”—which unbeknownst
to her was actually Victim’s agonal breathing as his body gasped
for air. From her vantage point, Roommate did not observe
2. Henfling explained that his locking holster “[is] not a quick
release holster” and that he had to press a release bar before he
could unholster the pistol.
20190150-CA 4 2020 UT App 129State v. Henfling
Victim’s head, and she did not enter the living room to
investigate further, thinking that Victim was “too wasted” and
had fallen asleep on the floor as he had on previous occasions.
Roommate returned to her bedroom to go back to sleep.
Post-Murder Conduct
¶10 After leaving the condominium, Henfling and Sister ran
to Henfling’s truck. Fiancée, who had heard the gunshot and hid
herself and her daughter behind a wall, saw Henfling and Sister
hurry to the truck and start it. Fiancée jumped in the truck and
asked Henfling what happened as he drove away. Henfling
responded that he “fucked up” and “just shot someone in the
face” and Victim was dead. Learning this, Fiancée told Henfling
to stop the truck and let her out. She went to a nearby
convenience store with her daughter. Sister also left the truck
and attempted to go to another friend’s home but she failed to
find it and eventually went to the same store as Fiancée.
¶11 When Fiancée entered the store, the store clerk noticed
she was distraught and called 911. Officers soon arrived, and
Fiancée informed them of the shooting. Sister, however, acted as
though she were an uninterested party who was merely in the
store to charge her cell phone. Police learned from Fiancée that
Sister knew Victim. When police spoke to Sister, she confirmed
that she knew Victim and offered to help police find his
condominium. But she did not mention that there had been a
shooting or that she had witnessed it. An officer accompanied
Sister in circles around the area for several minutes without
finding the condominium where Victim was shot. Sister
eventually called another friend for help, and the officer left
Sister at that friend’s home. Sister later apologized for lying to
the officer about not knowing the location of Victim’s
condominium.
¶12 In the meantime, Henfling drove around Park City and
called his family. First, he called his brother and then his father,
20190150-CA 5 2020 UT App 129State v. Henfling
recounting some version of the night’s occurrences and claiming
that he had a broken jaw and several teeth missing as a result of
the fight with Victim. Henfling’s father called police dispatch to
inform them that Henfling shot someone. The police dispatcher
then called Henfling and directed him to the officers waiting at
the convenience store where he had left Fiancée. Henfling
arrived at the store nearly one hour after shooting Victim.
Henfling’s Accounts
¶13 The officers at the convenience store detained Henfling.
He immediately told the officers that he “didn’t mean to
shoot” and that “[he] did self-defense” because Victim “was
beating [him] with a stick.” When asked if he needed medical
assistance, Henfling stated that his face hurt but he did not
“consider it an emergency.” After being read a Miranda warning,
Henfling agreed to speak to the officers and told them, “I self-
defensed myself . . . because he was beating me with a stick. And
I shot him in the face. He’s dead.” Henfling claimed the fight
started because Victim was trying to have sex with Sister. He
recounted that he and Victim punched each other, and then
Victim beat Henfling’s face with a stick. Henfling then asserted
when he was nearly unconscious, he crawled to his truck, pulled
out his pistol, and shot Victim while they were in the parking lot
by the truck.
¶14 Police found Victim in his condominium on his back in a
pool of blood. He was still alive and breathing but unconscious.
However, Victim’s wound was not survivable and he died after
a few days.
¶15 At the police station later on the morning of the shooting,
Henfling claimed he and Victim were wrestling and he had
Victim in a chokehold but Victim hit him with “some type of
metal pipe or pole.” He again asserted that he feared he was
losing consciousness and “jolted to his truck,” took out the
pistol, and shot Victim in the parking lot.
20190150-CA 6 2020 UT App 129State v. Henfling
¶16 The next day, Henfling asserted that the group was
outside smoking when Victim struck him, first with fists, and
then with “a pipe or . . . a stick.” He reiterated that he ran to his
truck, removed his pistol, and shot Victim in the head while they
were outside. But Henfling admitted he was “pretty tanked at
the time,” meaning that he was very intoxicated, and that he
“[didn’t] have a clear picture” but “remember[ed] bits and
pieces.”
¶17 In his fourth police interview, Henfling admitted that he
had his pistol in the holster on his hip. He also said he was at the
kitchen table when Victim started to punch him. He
“remember[ed] getting hit in the face,” and the next thing he
“remember[ed wa]s just seeing [Victim’s] face and [] pulling the
trigger.” Henfling claimed he spoke to Fiancée from jail the
previous evening and that she said the shooting happened
inside. But the call was recorded and a transcript revealed that
no such dialogue took place.
¶18 Although Henfling complained of injuries to his mouth
and throat, the only documented injuries were a swollen lip with
a small cut, a minor nosebleed, and light abrasions. He did not
have a broken jaw or missing teeth. No injury consistent with the
use of a pipe or stick to bludgeon his face was documented. No
pipe or stick was found at the scene.
Sister’s Account
¶19 Sister’s first account was provided during a recorded
phone conversation at the police station a few hours after the
shooting. In that conversation, she told her other brother,
“[Victim] pushed me and kicked [Henfling] in the mouth, and
then [Henfling] shot him.” Minutes later, in an interview with an
officer, Sister provided more detail, explaining that as she
returned to Victim’s condominium to get the keys from
Henfling, she and Henfling got into an argument about who
would drive because Henfling was intoxicated. Sister claimed
20190150-CA 7 2020 UT App 129State v. Henfling
that after the argument, Henfling agreed to give Fiancée the
keys. Then Victim punched Henfling, but Henfling did not fight
back right away; instead, Sister “stepped in between the two of
them, and [Victim] punched [her].” Henfling said, “Are you
kidding me? . . . You’re going to hit my sister? You’re going to
fucking punch my sister?” Victim began to choke Henfling, who
responded in kind, and Sister attempted to intervene, causing
them to all end up on the floor, where she punched Victim in his
face to get him off of Henfling, and “next thing [she knew] . . .
[Henfling] shot [Victim].” Sister recounted that Henfling
exclaimed, “Oh, my God. I can’t believe I just did that,” and that
he “regretted it instantly.”
¶20 Sister said that afterward, she and Henfling ran to the
truck and explained to Fiancée what happened. Fiancée took her
daughter and left the truck, stating she didn’t want anything to
do with it. Sister said she felt the same way and also left the
truck. She wanted to call the police “right away because [she]
knew it was wrong,” but she was “in such shock and fear . . .
[that she] didn’t know what to do.” Sister stated that no pipe or
stick was used to hit Henfling. Sister also said no fight took place
outside of Victim’s condominium.
Charging and Court Proceedings
¶21 Henfling was charged with murder and felony discharge
of a firearm with serious bodily injury—this charge was also
presented as the predicate offense for a felony murder theory.
¶22 At trial, the defense and prosecution each called experts
to shed light on the individuals’ positions at the time of the
shooting. Blood spatter experts testified about their respective
conclusions regarding forward spatter—explained as the spatter
that results from blood that travels forward in the same direction
as the bullet as it exits the body—and back spatter—explained as
the spatter that results from blood directed out of the entrance
wound back toward the source of force. The prosecution’s expert
20190150-CA 8 2020 UT App 129State v. Henfling
classified the blood spatter on the ceiling as back spatter and the
blood spatter found on a wall and the floor behind Victim as
forward spatter and calculated that Victim’s head was one to
two feet above the floor when he was shot. The defense’s expert
agreed on the distance of Victim’s head from the floor at the time
of the shooting and classified blood found on Sister as back
spatter but did not opine on the spatter on the ceiling. Another
expert determined the pistol was a mere twelve to twenty-four
inches from Victim when he was shot. Additionally, the experts
noted that stippling—gunshot residue deposited on and in the
skin near an entrance wound when a person is shot at close
range—was on Victim’s eyelids, indicating that his eyes were
closed when he was shot.
¶23 At the close of the prosecution’s case, defense counsel
moved for a directed verdict on the murder and felony discharge
counts, arguing that the State had not disproven self-defense.
Defense counsel also moved for a directed verdict on the theory
of felony murder, contending that the felony discharge count
was not an independent predicate offense. The trial court denied
the motions.
¶24 During closing arguments, the prosecutor argued that
four variants of the murder statute 3 had been sufficiently
demonstrated by the evidence for the jury to convict Henfling of
murder. The prosecutor also discussed the blood spatter
evidence, drawing an objection from defense counsel, who
claimed the evidence was mistakenly mischaracterized. The
court found it was for the jury to remember the evidence and
decide how to interpret it, and therefore overruled the objection.
3. See Utah Code Ann. § 76-5-203(2)(a)–(d) (LexisNexis 2017). The
statutory provisions in effect at the relevant time do not differ
from the current provisions in any way material to this case. We
therefore cite the current Utah Code for convenience.
20190150-CA 9 2020 UT App 129State v. Henfling
The prosecutor made further arguments to which defense
counsel did not object.
¶25 During deliberations, the jury sent a question to the judge
concerning the law of self-defense and the reasonable person
standard. 4 Before the judge and counsel could provide an
answer, the jury informed the court it had resolved the issue and
reached a verdict. The court nevertheless provided an answer to
the jury and instructed it to consider the answer for as long as
necessary and then inform the court when it was ready with a
verdict.
¶26 The jury found Henfling guilty of murder and of felony
discharge of a firearm. Henfling filed a motion to arrest
judgment and later a motion for a new trial, asserting many of
the same issues he raises on appeal. The trial court denied both
motions.
¶27 Henfling appeals.
ISSUES AND STANDARDS OF REVIEW
¶28 Henfling raises several issues on appeal. First, he argues
that the trial court erred in refusing to dismiss his murder
charge, asserting that “the State failed to present sufficient
evidence . . . proving the requisite mens rea beyond a reasonable
doubt.” Henfling also argues that the State presented insufficient
evidence to disprove self-defense to the murder charge beyond a
reasonable doubt. 5 “Whether the evidence presented at trial is
4. See Utah Code Ann. § 76-2-402(2) (LexisNexis Supp. 2019); id.§ 76-5-203(4) (2017).
5. Henfling asserts that the State presented insufficient evidence
to disprove self-defense as to the felony discharge count as well.
(continued…)
20190150-CA 10 2020 UT App 129State v. Henfling
sufficient to support the verdict is . . . a question of law, which
we review for correctness.” Salt Lake City v. Miles, 2014 UT 47,
¶ 10, 342 P.3d 212. But “our review is limited to ensuring that
there is sufficient competent evidence regarding each element of
the charge to enable a jury to find, beyond a reasonable doubt,
that the defendant committed the crime.” Id. (cleaned up). Our
inquiry ends “if there is some evidence from which findings of
all the requisite elements of the crime can reasonably be made.”
Id. (cleaned up). We also “consider whether a jury could, based
on the evidence, make an inference to support a guilty verdict,
or whether the guilty verdict rests upon mere speculation.” State
v. Logue, 2018 UT App 156, ¶ 20, 436 P.3d 136 (cleaned up).
¶29 Second, Henfling argues that the trial court “erred in
failing to dismiss the felony discharge of a firearm conviction.”
He asserts that the underlying charge was “invalid as a matter of
law.” “A trial court’s decision to grant or deny a motion to
dismiss presents a question of law, which we review for
correctness.” State v. Rushton, 2015 UT App 170, ¶ 4, 354 P.3d 223(cleaned up). 6
(…continued)
But beyond making the assertion, Henfling does not explain how
it differs from the argument as it relates to the murder charge.
We therefore do not address it separately and merely note that
the claim fails for the same reasons.
6. Henfling also asserts that the trial court erred in denying his
motion to dismiss on the felony murder theory and in
instructing the jury on the same, arguing that the predicate
offense of felony discharge of a firearm should merge into felony
murder. But see State v. Fedorowicz, 2002 UT 67, ¶ 60, 52 P.3d 1194(“[A] conviction for felony murder does not merge with its
underlying predicate felony.”). The State suggests this point is
(continued…)
20190150-CA 11 2020 UT App 129State v. Henfling
¶30 Third, Henfling argues that the trial court erred in
denying his motion for a new trial because of several asserted
errors in the jury instructions dealing with the charges of felony
discharge of a firearm and self-defense. But Henfling did not
preserve these arguments at trial and asks us to review them for
plain error and ineffective assistance of counsel. Because
Henfling asserts claims of plain error and ineffective assistance
of counsel as exceptions to preservation, we apply a common
standard of review for prejudice. 7 See State v. Verde, 770 P.2d 116,
(…continued)
moot if we uphold Henfling’s sentence for murder under the
statutory variant of intentional or knowing murder, for which he
was separately found guilty by way of a special verdict form. In
his reply, Henfling does not contest the point. We agree that
Henfling’s argument is moot. Henfling’s conviction and sentence
for a single count of murder are sustained by the separate
variant of intentional or knowing murder, and even if we were
to hold that the jury should not have been instructed on the
felony murder variant, it would not change the outcome. See
State v. Anderson, 2007 UT App 304, ¶ 15, 169 P.3d 778(dismissing cross-appeal as moot because the defendant’s
convictions were not enhanced as a result of the court’s
challenged findings); see also State v. Blubaugh, 904 P.2d 688, 694
n.3 (Utah Ct. App. 1995) (noting that disposition of defendant’s
claim that evidence was insufficient to support a verdict of
depraved indifference murder rendered moot his challenge to
the denial of his motion to dismiss the case).
7. When a defendant raises issues of plain error and ineffective
assistance of counsel, a common standard of prejudice applies
“because plain error requires a showing that absent the error,
there is a substantial likelihood of a more favorable outcome for
defendant, and similarly, the ineffective assistance standard
requires a showing that but for ineffective assistance of counsel,
(continued…)
20190150-CA 12 2020 UT App 129State v. Henfling
124 n.15 (Utah 1989); see also State v. Litherland, 2000 UT 76, ¶ 31
n.14, 12 P.3d 92.
¶31 Fourth, Henfling contends that the trial court erred in
failing to grant a new trial because of several alleged instances of
prosecutorial misconduct. But only one claim raised on appeal
was preserved by objection at trial. “Insofar as th[e] issue [i]s
preserved, we will review the trial court’s rulings on
prosecutorial misconduct claims for an abuse of discretion.”
State v. Fairbourn, 2017 UT App 158, ¶ 13, 405 P.3d 789 (cleaned
up). The remaining prosecutorial misconduct claims are
unpreserved. Henfling asks us to review the unpreserved claims
for plain error and ineffective assistance of counsel. See State v.
Hummel, 2017 UT 19, ¶¶ 102, 105, 111, 393 P.3d 314. Where the
trial court has addressed the prosecutorial misconduct claim for
ineffectiveness of counsel in a post-trial motion, as in this case,
we review the trial court’s rulings for correctness. See State v.
Martinez, 2020 UT App 69, ¶ 25, 464 P.3d 1170.
(…continued)
the result would likely have been different for defendant.” State
v. Ellifritz, 835 P.2d 170, 174 (Utah Ct. App. 1992); see also State v.
Garcia, 2017 UT 53, ¶ 40, 424 P.3d 171 (“[E]rrors in jury
instructions—even instructions going to the elements of a
charged crime—require harmless-error analysis.”). “Because the
defendant must show prejudice to prevail under either
argument, the common standard merely functions as an
analytical shortcut that avoids treatment of the other prongs of
the ineffective assistance and plain error standards.” State v.
Litherland, 2000 UT 76, ¶ 31 n.14, 12 P.3d 92; see also State v.
McNeil, 2016 UT 3, ¶ 29, 365 P.3d 699 (“[T]he prejudice test is the
same whether under the claim of ineffective assistance or plain
error.”).
20190150-CA 13 2020 UT App 129State v. Henfling
¶32 Fifth, related to one claim of ineffective assistance of
counsel, Henfling seeks a remand under rule 23B of the Utah
Rules of Appellate Procedure. Rule 23B permits us to remand a
criminal case “to the trial court for entry of findings of fact,
necessary for the appellate court’s determination of a claim of
ineffective assistance of counsel.” Utah R. App. P. 23B(a). This
court will grant a rule 23B motion “only upon a nonspeculative
allegation of facts, not fully appearing in the record on appeal,
which, if true, could support a determination that counsel was
ineffective.” Id.ANALYSIS
I. Sufficiency of the Evidence
A. Mens Rea
¶33 Henfling first contends that the trial court erred by not
dismissing the murder charge against him, asserting that the
evidence was insufficient to prove the required mens rea beyond
a reasonable doubt. We disagree because his admission that he
intended to kill Victim satisfied the mens rea element of murder.
¶34 To support a charge of murder, the State needed to prove
one of four statutory variants beyond a reasonable doubt. By
way of special verdict, the jury found that the State proved both
the fourth variant—felony murder—and at least one of the
following:
(a) the actor intentionally or knowingly cause[d]
the death of another;
(b) intending to cause serious bodily injury to
another, the actor commit[ted] an act clearly
dangerous to human life that cause[d] the death of
another; [or]
20190150-CA 14 2020 UT App 129State v. Henfling
(c) acting under circumstances evidencing a
depraved indifference to human life, the actor
knowingly engage[d] in conduct which create[d] a
grave risk of death to another and thereby cause[d]
the death of another.
Utah Code Ann. § 76-5-203(2) (LexisNexis 2017). Here, the
evidence was sufficient to enable the jury to find, beyond a
reasonable doubt, that Henfling intentionally or knowingly
caused Victim’s death. 8
¶35 We often look to circumstantial evidence to infer intent,
“because intent is a state of mind, which is rarely susceptible of
direct proof,” State v. Logue, 2018 UT App 156, ¶ 17, 436 P.3d 136(cleaned up), but intent may be proved by direct evidence if it is
available, State v. Minousis, 228 P. 574, 576 (Utah 1924) (“It is . . .
well settled that . . . specific intent may be proved by
circumstantial, as well as direct, evidence.”). To establish that
Henfling intentionally caused Victim’s death, the evidence need
only show that it was Henfling’s “conscious objective or desire
to engage in the conduct or cause the result.” Utah Code Ann.
§ 76-2-103(1). Alternatively, to establish that Henfling knowingly
caused Victim’s death, there must be some evidence showing
that he acted “when he [was] . . . aware that his conduct [was]
reasonably certain to cause the [death].” Id. § 76-2-103(2).
¶36 Here the State provided sufficient competent evidence
that Henfling intentionally or knowingly caused Victim’s death.
Indeed, Henfling admitted as much: “natural reaction, being a
hunter . . . you shoot to kill. . . . So it’s what I did.” This
8. Because we determine there is some evidence from which the
jury could reasonably find that Henfling intentionally or
knowingly caused Victim’s death, we need not address the other
variants of murder that are satisfied by implication in this case.
20190150-CA 15 2020 UT App 129State v. Henfling
admission shows that Henfling intentionally shot Victim with
the intent to kill him. Alternatively, it shows that Henfling knew
that shooting Victim was reasonably certain to cause his death.
This evidence alone is sufficient to enable the jury to find,
beyond a reasonable doubt, that Henfling acted with the
required mens rea. He does not challenge this admission on
appeal but rather asserts that he was justified by self-defense.
But the claimed defense is a consideration apart from whether
Henfling possessed the required mens rea for murder. Similarly,
Henfling’s ultimate “objective and desire to stop the [alleged]
beating” is a matter for separate consideration as a potential
motive for the shooting and does not displace the mens rea.
¶37 Because Henfling’s admission shows he intentionally and
knowingly caused Victim’s death, the trial court correctly found
there was sufficient evidence of the required mens rea to support
the murder charge.
B. Self-Defense
¶38 Henfling next argues that the “State presented insufficient
evidence to disprove [perfect] self-defense or imperfect self-
defense beyond a reasonable doubt.” We disagree because there
was ample evidence from which the jury could conclude that
self-defense was disproved beyond a reasonable doubt.
¶39 Utah’s self-defense statute provides that “[a]n individual
is justified in . . . using force against another individual when
and to the extent that the individual reasonably believes that
force . . . is necessary to defend the individual . . . against the
imminent use of unlawful force.” Utah Code Ann. § 76-2-
402(2)(a) (LexisNexis Supp. 2019). Furthermore, “[a]n individual
is justified in using force intended or likely to cause death or
serious bodily injury only if the individual reasonably believes
that force is necessary to prevent death or serious bodily injury
to the individual . . . as a result of imminent use of unlawful
force . . . .” Id. § 76-2-402(2)(b). When the statutory criteria are
20190150-CA 16 2020 UT App 129State v. Henfling
satisfied, a defendant has a claim for perfect self-defense and is
entitled to an acquittal. A defendant may claim imperfect self-
defense if “the defendant caused the death of another . . . under
a reasonable belief that the circumstances provided a legal
justification or excuse for the conduct although the conduct was
not legally justifiable or excusable under the existing
circumstances.” Id. § 76-5-203(4)(a) (2017). Imperfect self-defense
“operates to reduce a charge of murder to that of manslaughter.”
State v. Bonds, 2019 UT App 156, ¶ 44, 450 P.3d 120, cert. granted,
466 P.3d 1072 (Utah 2020). Once evidence of self-defense is
produced to support either perfect or imperfect self-defense, the
prosecution is required to disprove the affirmative defense
beyond a reasonable doubt. See id. ¶ 45.
¶40 Here, the State provided sufficient evidence for a jury to
determine, beyond a reasonable doubt, that neither self-defense
claim applied to the circumstances at issue. Although perfect
and imperfect self-defense differ in “the determination of
whether the defendant’s conduct was, in fact, legally justifiable
or excusable under the existing circumstances,” State v. Low, 2008
UT 58, ¶ 32, 192 P.3d 867 (cleaned up), both defenses require that
the defendant hold a reasonable belief that the force used was
necessary for defense, Utah Code Ann. § 76-2-402(2)(b) (Supp.
2019); id. § 76-5-203(4) (2017); see Low, 2008 UT 58, ¶ 32
(“[P]erfect self-defense and imperfect self-defense require the
defendant to present the same evidence: that the defendant had
a reasonable belief that force was necessary to defend himself.”).
If the defendant does not have that belief, the defenses cannot
apply.
¶41 Here, Henfling asks us to re-weigh the evidence in his
favor by identifying evidence that could be construed as
favorable to his defense, but he ignores evidence on which the
jury could have relied to reach its verdict. See State v. Frame, 723
P.2d 401, 404 (Utah 1986) (per curiam) (“[The d]efendant relies
only upon his version of the facts, which is not the only
20190150-CA 17 2020 UT App 129State v. Henfling
reasonable one. The jury need not accept the version advanced
by [the] defendant, but may weigh the evidence and draw its
own conclusions and inferences as to his conduct and intent. The
existence of contradictory testimony, without more, does not
require reversal.”). Most notably, Henfling does not grapple
with the evidence supporting an inference that he lacked the
necessary belief that lethal force was necessary to defend
himself.
¶42 For example, a jury might find that Henfling concocted
varying accounts of the shooting to provide himself with a claim
for self-defense, supporting an inference that the actual scenario
that unfolded was one that would not cause Henfling to develop
a belief that lethal self-defense was necessary. Additionally,
Henfling’s relatively minor injuries—a swollen and cut lip, light
abrasions, and a minor bloody nose—supported an inference
that Henfling did not believe that lethal self-defense was
necessary, especially in light of evidence that Henfling and
Victim fought that same night without escalating to use of their
guns, and Henfling’s admission that “[he] should have shot
[Victim] in the foot or hand or just in the air” but instead “[shot]
to kill.” Furthermore, the jury could have inferred that Henfling
killed Victim out of malice. Henfling was upset that Victim hit
Sister moments before shooting Victim. He exclaimed, “Are you
kidding me? . . . You’re going to hit my sister? You’re going to
fucking punch my sister?” Moments later, he declared he had
“fucked up,” arguably recognizing that his actions were
unnecessary and disproportionate to any threat he faced.
¶43 Lastly, though Henfling interprets it otherwise, the jury
could have viewed the forensic evidence as disproving that
Henfling believed lethal self-defense was necessary. When
Henfling shot Victim, Victim’s head was only one to two feet
above the floor, his eyes were closed, and the pistol was a mere
twelve to twenty-four inches from his head. And the State’s
expert testified the blood spatter on the ceiling was from the
20190150-CA 18 2020 UT App 129State v. Henfling
entrance wound, suggesting that Henfling was likely over
Victim, rather than lying on the floor next to him. From any of
this evidence, a jury could have inferred, as the State argued,
that Henfling “executed” Victim when Victim posed no
imminent threat rather than acting under a belief that lethal self-
defense was necessary to prevent serious bodily injury or death.
See State v. Garcia-Mejia, 2017 UT App 129, ¶ 19, 402 P.3d 82(“The State presented evidence. Defendant presented conflicting
evidence. That the jury resolved the conflict against [d]efendant
does not mean that the evidence was legally insufficient to
support [d]efendant’s conviction; it means that the jury engaged
in its appointed role as factfinder.”).
¶44 Because a jury could, based on the evidence, make
inferences to support a finding that the State disproved self-
defense beyond a reasonable doubt, the trial court correctly
found there was sufficient evidence to support the murder
charge.
II. Validity of Felony Discharge of a Firearm
¶45 Henfling argues that the trial court “erred in failing to
dismiss the felony discharge of a firearm conviction,” asserting
that the charge “is invalid as a matter of law.” The crux of
Henfling’s argument is that the charge was inapplicable because
the statute is not one “which punishes firearm discharges that
result in death,” and Henfling’s action resulted in the death of
Victim rather than resulting in lesser injury. Henfling proffers, as
a matter of statutory construction, that because a general statute
must give way to a more specific statute, felony discharge of a
firearm must give way to the charge of murder when death
results. Although it “is the rule that a statute dealing specifically
with a particular issue prevails over a more general statute that
arguably also deals with the same issue,” Lyon v. Burton, 2000 UT
19, ¶ 17, 5 P.3d 616, (as amended), that rule is inapposite here.
The felony discharge of a firearm statute operates in concert with
20190150-CA 19 2020 UT App 129State v. Henfling
the murder statute to make the act a separately chargeable
predicate offense that contemplates death as a resultant injury.
¶46 We “interpret [a] statute according to its plain language”
because it is the “best evidence” of the legislature’s “true intent
and purpose,” and evincing the legislature’s intent is “our
primary goal.” State v. McKinnon, 2002 UT App 214, ¶ 6, 51 P.3d
729 (cleaned up). “The plain language of a statute is to be read as
a whole, and its provisions interpreted in harmony with other
provisions in the same statute and with other statutes under the
same and related chapters.” Lyon, 2000 UT 19, ¶ 17 (cleaned up).
¶47 The statute for felony discharge of a firearm states a
person is guilty of the offense if “the actor discharges a firearm
in the direction of one or more individuals, knowing or having
reason to believe that any individual may be endangered by the
discharge of the firearm.” Utah Code Ann. § 76-10-508.1(1)(a)
(LexisNexis Supp. 2019). It further dictates that the offense is a
third degree felony, unless it causes bodily injury, which is a
second degree felony, or serious bodily injury, which is a first
degree felony. Id. § 76-10-508.1(1)–(3).
¶48 By the plain language of the statute, the offense is
committed when the firearm is discharged. The degree of any
resulting injury serves as a sentencing enhancement. The offense
is accomplished whether or not bodily injury results. Thus,
Henfling committed the offense the moment he discharged the
firearm under the requisite circumstances, regardless of whether
Victim sustained no injury, bodily injury, or serious bodily
injury. Therefore, the charge applies to Henfling’s action.
¶49 Additionally, the statute’s reference to serious bodily
injury clearly contemplates death as an outcome of the criminal
act. See id. § 76-1-601(17) (Supp. 2020) (“‘Serious bodily injury’
. . . creates a substantial risk of death.” (emphasis added)). And
nothing in the plain language of the statute limits the offense to
injuries that are serious but do not cause death, describing a
20190150-CA 20 2020 UT App 129State v. Henfling
threshold rather than an outer limit. Therefore, the statute’s
plain language does not prevent Henfling from being charged
with the offense simply because Victim ultimately died from the
serious bodily injury inflicted when Henfling shot him in the
face.
¶50 Furthermore, the murder statute does not operate to the
exclusion of the felony discharge of a firearm statute when death
results. Rather, the murder statute expressly contemplates felony
discharge of a firearm as a predicate but “separate offense [that]
does not merge with the crime of murder.” Id. § 76-5-203(5)(a)
(2017); id. § 76-5-203(1)(v); see State v. Martinez, 2019 UT App 166,
¶¶ 20–22, 452 P.3d 496 (holding the legislature expressly
exempted the enumerated predicate offense of felony discharge
of a firearm from operation of the merger doctrine in the murder
statute), cert. granted, 462 P.3d 798 (Utah 2020). 9 And in addition
to murder, a defendant “may also be convicted of, and punished
for, the separate offense” of felony discharge of a firearm. Utah
Code Ann. § 76-5-203(5)(b).
¶51 Accordingly, the plain language of the statutes provides
that murder does not displace felony discharge of a firearm
when death results. This is not a scenario in which a more
general statute gives way to one of greater specificity. Rather, the
9. Henfling also asserts that the conviction for felony discharge
of a firearm should have merged with that of felony murder to
deprive the felony murder variant of a requisite predicate
offense. In addition to conflicting with our decision in State v.
Martinez, 2019 UT App 166, ¶¶ 20–22, 452 P.3d 496 (holding the
predicate offense of felony discharge of a firearm is exempted
from the merger doctrine in the murder statute) cert. granted, 462
P.3d 798 (Utah 2020), which issued after Henfling filed his initial
brief, this argument is moot for the same reasons we articulate
above, supra note 6, and we therefore do not address it.
20190150-CA 21 2020 UT App 129State v. Henfling
statutes, read in harmony, operate together, and both offenses
may be charged where appropriate.
¶52 Because the murder statute does not provide greater
specificity regarding the conduct at issue here, it does not prevail
over the felony discharge of a firearm statute to make the charge
invalid as a matter of law.
III. Jury Instructions
A. Felony Discharge of a Firearm
¶53 Henfling argues that the trial court erred in denying his
motion for a new trial because the jury was not instructed as to
all the elements of felony discharge of a firearm. We agree that
the instruction was in error but conclude the error was harmless.
¶54 Henfling asserts, and the State concedes, that the jury
instruction for felony discharge of a firearm as a first degree
felony was incomplete because it did not require the jury to find
serious bodily injury, an element of the convicted offense. See
Utah Code Ann. § 76-10-508.1(3) (LexisNexis Supp. 2019).
Henfling contends that this omission prejudiced him because the
jury did not have to find this element beyond a reasonable doubt
to convict him.
¶55 In determining “whether the omission of an element from
a jury instruction is harmless error[, we ask] whether the record
contains evidence that could rationally lead to a contrary finding
with respect to the omitted element.” State v. Ochoa, 2014 UT
App 296, ¶ 5, 341 P.3d 942 (cleaned up). If there is no such
evidence, and “the facts indisputably establish [the omitted]
element and that element is not an issue at trial, a trial court’s
failure to instruct on the element cannot be prejudicial.” State v.
Clark, 2014 UT App 56, ¶ 57, 322 P.3d 761; see also Ochoa, 2014 UT
App 296, ¶ 5.
20190150-CA 22 2020 UT App 129State v. Henfling
¶56 Normally our confidence in a verdict might be
undermined if a jury did not consider whether each element of a
criminal offense was proved beyond a reasonable doubt. See
Clark, 2014 UT App 56, ¶ 57 (“Generally, the trial court’s failure
to instruct the jury on the basic elements of an offense cannot be
considered harmless error.”). But no evidence was presented to
show that Victim’s injury was anything other than serious bodily
injury. Rather, the element was undisputed—indeed Henfling
admitted he shot Victim and that “[Victim’s] wound was not
survivable and he died a few days later.” The gunshot wound to
Victim’s face was serious bodily injury because it was the type of
injury that created a substantial risk of death, and in this case
admittedly led to Victim’s death. See Utah Code Ann. § 76-1-
601(17) (Supp. 2020) (serious bodily injury is “bodily injury that
creates . . . a substantial risk of death.”). Henfling did not contest
this fact at trial and offered no evidence to support a contrary
finding. Indeed, all the evidence, including Henfling’s own
admissions, indisputably established that Victim sustained
serious bodily injury.
¶57 As a result, our confidence in the verdict remains because
Henfling has not shown, and indeed does not suggest in his
briefing, how the inclusion of the undisputed, but omitted,
element in the jury instruction would have likely resulted in a
different outcome. Because Henfling was in no way prejudiced
by the exclusion of the serious-bodily-injury element of the
offense, the error was harmless and his claim fails. See Clark,
2014 UT App 56, ¶ 58 (stating that where a defendant has not
shown prejudice related to an arguably incomplete jury
instruction, he has not demonstrated either plain error or
ineffective assistance of counsel).
B. Self-Defense
¶58 Henfling further argues that the trial court erroneously
denied his motion for a new trial, asserting four mistakes in the
20190150-CA 23 2020 UT App 129State v. Henfling
jury instructions on self-defense. Henfling does not meet his
burden to establish prejudice for any of these unpreserved
claims.
¶59 To succeed on his unpreserved claims under the common
standard of review applicable to both plain error and
ineffectiveness of counsel, Henfling must show prejudice. See
State v. Apodaca, 2018 UT App 131, ¶ 84 n.14, 428 P.3d 99. Even if
“certain of the instructions could have been slightly more
accurate or more complete [it] does not mean they were
inaccurate, incomplete, . . . erroneous . . . [or] prejudicial.” State
v. Nelson, 2015 UT 62, ¶ 47, 355 P.3d 1031. As we review the jury
instructions, we bear in mind “that jurors do not sit in solitary
isolation booths parsing instructions for subtle shades of
meaning in the same way that lawyers might”; rather they
“thrash them out during their deliberations, using their
commonsense understanding of the instructions in the light of
all that has taken place at the trial.” Id. ¶ 42 (cleaned up). If,
“taken as a whole, the jury was fairly instructed,” we will not
reverse. Id. ¶ 47. Nevertheless, we “have stated that self-defense
instructions must clearly communicate to the jury what the
burden of proof is and who carries the burden.” State v. Bonds,
2019 UT App 156, ¶ 49 n.6, 450 P.3d 120 (cleaned up), cert.
granted, 466 P.3d 1072 (Utah 2020).
¶60 First, Henfling asserts that “the jury was erroneously
instructed on the law . . . of self-defense” because Instruction
No. 38 “failed to accurately instruct as to the ‘reasonable person’
standard” by including a qualification that a “reasonable
individual [is] in full possession of their faculties.” Instruction
No. 38 stated:
You are instructed that “reasonably believes” is a
standard that [a] reasonable individual in full
possession of their faculties would entertain under
similar circumstances. In determining imminence
20190150-CA 24 2020 UT App 129State v. Henfling
or reasonableness, you may consider, but are not
limited to, any of the following factors:
the nature of the danger;
the immediacy of the danger;
the probability that the unlawful force would result
in death or serious bodily injury;
the other’s prior violent acts or violent
propensities; and
any patterns of abuse or violence in the parties’
relationship.
“Reasonable belief” shall be determined
from the viewpoint of a reasonable person under
the then existing circumstances.
¶61 During deliberations, the jury sent a written inquiry to the
judge regarding Instruction No. 38, asking,
[C]an you clarify just for confirmation that
sentences 1 through 3 and the last one on
Instruction 38 that we are not to take alcohol or
drugs into consideration, that we just judge what
his actions would be based on what a reasonable
person would do, that drugs and alcohol cannot be
any type of defense or influence on his mental
capacity and state of reasonableness of his actions?
. . . [S]hould [we] ignore alcohol use and deliberate
based on them being a reasonable noninfluenced
person[?]
However, before the judge and counsel provided an answer,
the jury withdrew the question, indicating it had resolved the
matter and reached a verdict. Nevertheless, the court answered
the question and provided the jury with this additional
guidance:
First, please look closely at Instructions 37 and 38.
To determine if the Defendant reasonably believed
20190150-CA 25 2020 UT App 129State v. Henfling
that shooting his gun was necessary to prevent
death or serious bodily injury to himself or another
person, you should compare his belief with what a
reasonable person, in full possession of his
faculties, would have believed under the same
circumstances.
The jury was further instructed, “Consider this [answer] as long
as you need to. After you consider it, let us know when you are
ready with your verdict.” The jury thereafter returned the guilty
verdict on all counts.
¶62 Henfling offers conclusory assertions that Instruction
No. 38 was “legally incorrect” but fails to cite any authority for
this claim. Furthermore, Henfling does not support his argument
of associated prejudice. He merely states that the jury’s
understanding of the self-defense claim was “clearly tainted by
the confusing instruction” but fails to recognize that the court
provided additional clarifying instructions to the jury. These
deficiencies fall short of the Utah Rules of Appellate Procedure’s
directive that an appellant provide “reasoned analysis supported
by citations to legal authority and the record, [as to] why the
party should prevail on appeal.” Utah R. App. P. 24(a)(8); see
Nelson, 2015 UT 62, ¶ 49 (holding appellant failed to show
prejudice in compliance with rule 24 because he merely pointed
to potential conflicts in the instructions, alleged error without
showing it, failed to develop arguments, and offered conclusory
statements). Accordingly, Henfling has failed to demonstrate
prejudice here.
¶63 Second, Henfling asserts that the jury was erroneously
instructed on the law of self-defense because the instructions
“failed to accurately instruct as to imperfect self-defense” by
indicating it was a “partial defense,” did not define “reasonable
belief,” and did not instruct the jury on how to proceed
following a finding of imperfect self-defense.
20190150-CA 26 2020 UT App 129State v. Henfling
¶64 Henfling asserts imperfect self-defense was erroneously
referred to as a “partial defense” rather than “a true affirmative
defense” but fails to articulate the significance of that wording,
making it a distinction without a difference. Furthermore,
“imperfect self-defense is only a partial defense that . . . results
only in reduction of a conviction from murder to manslaughter,
whereas perfect self-defense is a complete defense to any crime.”
Bonds, 2019 UT App 156, ¶ 44 (cleaned up). There was no error,
let alone prejudice, in referring to imperfect self-defense as a
partial defense.
¶65 Henfling’s assertions that the instruction also was in error
because “reasonable belief” was not defined and because it did
not “direct the jury what to do” upon finding self-defense
applied, are unavailing because the instructions provided that
information elsewhere. See Nelson, 2015 UT 62, ¶ 44 (stating we
consider jury instructions as a whole). Specifically, regarding
imperfect self-defense, Instruction No. 42 provided that the
“effect of the defense is to reduce the crime of murder to
manslaughter,” and also stated that if the State did not disprove
the defense, “the defendant may only be convicted of
manslaughter.” (Cleaned up.) Additionally, Instruction No. 38
defined “reasonable belief” and the concept was addressed again
in the remedial instruction provided to the jury during
deliberations. Accordingly, Henfling does not show error or
prejudice associated with this claim.
¶66 Third, Henfling asserts that the jury was erroneously
instructed because the instructions were over-inclusive and
contained inapplicable exceptions to his self-defense claim. In
particular, Henfling argues that the jury may have been misled
into thinking he had a duty to retreat because the instruction
stated, in part, “A person does not have a duty to retreat from
the force or threatened force in a place where that person has
lawfully entered or remained . . . .” But the language of the
instruction was merely superfluous, not misleading, and the
20190150-CA 27 2020 UT App 129State v. Henfling
prosecutor did not argue that Henfling had a duty to retreat. See
State v. Ojeda, 2015 UT App 124, ¶ 6 n.1, 350 P.3d 640 (“Inclusion
of the inapplicable language from the statute did not prejudice
[d]efendant, as the jury heard no evidence consistent with [the
superfluous variant] but ample evidence bearing on the other
statutory variants.”); accord State v. Reid, 2018 UT App 146, ¶ 35,
427 P.3d 1261. Therefore, there was no risk that the jury would
be misled by the instruction to find an “absolutely inapplicable”
duty to retreat preempted Henfling’s claims of self-defense, and
no prejudice could result. See State v. DeAlo, 748 P.2d 194, 198
(Utah Ct. App. 1987) (ruling the erroneous inclusion of a
“superfluous” jury instruction was “harmless”).
¶67 Fourth, Henfling asserts that the jury instructions lacked
clarity “as to the State’s Burden to disprove affirmative defenses
beyond a reasonable doubt.” Although “instructions on
affirmative defenses must clearly communicate to the jury what
the burden of proof is and who carries the burden” because it “is
counterintuitive,” Bonds, 2019 UT App 156, ¶ 45 (cleaned up), an
instruction need not communicate that burden in a particular
manner, see State v. Clayton, 646 P.2d 723, 725 (Utah 1982) (“Even
these instructions [regarding the prosecutor’s burden of proof]
need not be given with any particular words or phrases . . . [but
must] use language which the jury would understand.” (cleaned
up)).
¶68 Here, the instructions communicated the State’s burden
by informing the jury that one element of murder the State had
to “prove[] beyond a reasonable doubt” was that “the defendant
did not act with either self-defense or imperfect self-defense.”
The instructions further emphasized that “the State must prove
beyond a reasonable doubt that [self-]defense does not apply”
and that “it is the prosecution’s burden to prove beyond a
reasonable doubt that the defendant did not act in self-defense.”
The instructions clearly and correctly directed the jury to apply
the burden to the State; no instruction improperly shifted the
20190150-CA 28 2020 UT App 129State v. Henfling
burden as Henfling implies. Henfling was not prejudiced by the
absence of the particular phrasing for which he advocates.
¶69 Because Henfling does not show prejudice stemming
from any of the asserted errors in the self-defense jury
instructions, his claims for plain error and ineffective assistance
of counsel fail.
IV. Alleged Prosecutorial Misconduct
¶70 Henfling contends that the trial court erred in failing to
grant a new trial because of instances of prosecutorial
misconduct. We disagree.
¶71 “Prosecutorial misconduct is not a standalone basis for
independent judicial review,” State v. Reid, 2018 UT App 146,
¶ 40, 427 P.3d 1261 (cleaned up), and we do not review “whether
to question the prosecutor’s actions,” see State v. Hummel, 2017
UT 19, ¶¶ 111, 117, 393 P.3d 314; accord Reid, 2018 UT App 146,
¶ 40. Rather, we “review the decisions of lower courts,” Hummel,
2017 UT 19, ¶ 107, and when an appellant alleges prosecutorial
misconduct, we review the trial court’s ruling regarding the
challenged conduct, see Reid, 2018 UT App 146, ¶ 40. However,
“the law of preservation controls” and we review unpreserved
prosecutorial misconduct issues “under established exceptions
to the law of preservation,” if asserted by an appellant. See id.(cleaned up); see also Hummel, 2017 UT 19, ¶¶ 105–110 (holding
“plain error review [for prosecutorial misconduct] considers the
plainness or obviousness of the district court’s error”). 10
10. Assuming that prosecutorial misconduct can be
demonstrated, Henfling posits that the State must show the
misconduct was harmless beyond a reasonable doubt, citing
State v. Ross, 2007 UT 89, 174 P.3d 628. The State disagrees,
arguing that the burden is on the appellant for most preserved
(continued…)
20190150-CA 29 2020 UT App 129State v. Henfling
A. Statements on Forensic Evidence
¶72 Henfling first asserts the court abused its discretion by
allowing the prosecutor to make “misstatements of the forensic
evidence to argue a surprise execution theory in final rebuttal.”
¶73 Although “a prosecutor may not assert arguments he
knows to be inaccurate,” State v. Larrabee, 2013 UT 70, ¶ 24, 321
P.3d 1136 (cleaned up), “courts grant considerable freedom
during closing arguments for counsel to discuss fully from their
standpoints the evidence and the inferences and deductions
arising therefrom,” State v. Thompson, 2014 UT App 14, ¶ 51, 318
P.3d 1221 (cleaned up). To demonstrate error sufficient to
(…continued)
claims and is always on the defendant for unpreserved claims.
But because Henfling does not establish that prosecutorial
misconduct occurred for his preserved claim, we need not
address which party bears what burden of proof as it concerns
any resultant harm for preserved claims. See State v. Leech, 2020
UT App 116, ¶ 43 n.7 (“Except in cases of constitutional error,
Utah law places the burden on the defendant to prove that a
preserved error is harmful.”).
But Henfling’s reliance on Ross for his unpreserved claims
of prosecutorial misconduct ignores both State v. Bond, 2015 UT
88, 361 P.3d 104, requiring a defendant to demonstrate prejudice
on an unpreserved constitutional claim, id. ¶ 46, and State v.
Hummel, 2017 UT 19, 393 P.3d 314, applying and extending Bond
in plain error review of unpreserved prosecutorial misconduct
claims, id. ¶ 107. See also United States v. Olano, 507 U.S. 725, 734
(1993) (explaining that under plain error, “[i]t is the defendant
rather than the Government who bears the burden of persuasion
with respect to prejudice”). Under Bond and Hummel, a
defendant bears the burden to prove the harm of a plain error for
unpreserved prosecutorial misconduct claims.
20190150-CA 30 2020 UT App 129State v. Henfling
warrant a reversal for prosecutorial misconduct, “a defendant
must establish both that the prosecutor’s conduct called to the
attention of the jurors matters they would not be justified in
considering in determining their verdict and, under the
circumstances of the particular case, the error is substantial and
prejudicial.” State v. Ashcraft, 2015 UT 5, ¶ 31, 349 P.3d 664(cleaned up).
¶74 During closing rebuttal, the prosecutor commented on the
blood spatter evidence, reminding the jury that the experts
testified that the back spatter, or spatter which disperses back
toward the source of force out of the entrance wound, was found
on the ceiling and the forward spatter, or the spatter that follows
the projectile forward along its trajectory out of the exit wound,
was found on the floor and wall behind Victim. The prosecution
reviewed this evidence and characterized the event as an
execution. Defense counsel objected to the prosecutor’s
characterization of the blood spatter evidence and argued that it
was the forward spatter that was found on the ceiling. The trial
court ruled that the competing interpretations of the expert
testimony was a matter for the jury to consider and overruled
the objection. When Henfling raised the issue anew in his motion
for a new trial, the court concluded that there was no
misconduct because there was no duty to disclose the
prosecutor’s theory and the standard was whether the evidence
supported the theory asserted, which it did.
¶75 Henfling maintains on appeal that the evidence was
mischaracterized and the prosecutor misrepresented this
evidence by stating “everyone who testified agreed” about the
blood spatter evidence. He is mistaken. The State’s witnesses
specifically testified that the blood spatter on the ceiling was
from the entrance wound and blood spatter from the exit wound
was found on the floor and wall behind Victim. No expert
refuted this evidence. Therefore, the prosecutor did not
inaccurately characterize the evidence, nor did she present
20190150-CA 31 2020 UT App 129State v. Henfling
evidence that was not already in the record. She interpreted the
evidence to conclude all experts were in agreement as to which
blood stains were forward spatter and which were back spatter,
even if there was some small variation in how each expert
described the composition of the blood stains. The prosecutor’s
comments on the blood stains reflected a permissible deduction
from evidence in the record. She expressly referred jurors to
their own memory of the experts’ testimonies relating to the
blood spatter evidence, stating, “this is your memory . . . you are
going to have to remember [the testimony]. But we would
submit and the evidence shows that everyone . . . who testified,
testified that blood [on the ceiling] . . . was not forward spatter.”
The prosecutor also “explained the basis of [her] deduction” by
referencing the forward spatter from the exit wound in the
corner of the room and the back spatter from the entrance
wound on the ceiling, suggesting that Henfling deliberately shot,
or executed, Victim. 11 See Thompson, 2014 UT App 14, ¶ 55.
Furthermore, “the prosecutor was responding” to Henfling’s
theory and argument that he shot Victim in self-defense. See id.Accordingly, when considered in context, the prosecutor’s
arguments did not call to the attention of the jurors matters they
would not be justified in considering.
¶76 Because there was no prosecutorial misconduct in these
challenged statements, the court did not abuse its discretion in
overruling Henfling’s contemporaneous objection or in denying
his later motion for a new trial.
11. Henfling also asserts that the prosecutor’s execution
argument was “a complete and unfair surprise.” However,
Henfling concedes the State’s experts testified “that stains on the
ceiling would be consistent with back spatter,” and the State’s
theory of prosecution for the murder charge was that Henfling
deliberately killed Victim. We do not view the prosecutor’s
statement as a change of theory.
20190150-CA 32 2020 UT App 129State v. Henfling
B. The Prosecutor’s Other Statements12
¶77 Henfling also argues that prosecutorial misconduct
occurred when the prosecutor “repeatedly expressed personal
opinions, commented on the credibility of the defendant or
others, and . . . commented on facts not in the record” during
closing argument. He argues that his attorney rendered
ineffective assistance by failing to object and that, even in the
absence of an objection, the trial court plainly erred in failing to
address these instances of alleged misconduct. We discern no
misconduct in most of the challenged statements, and no
prejudicial misconduct in the remaining statement, and we
therefore conclude that there was no objectively unreasonable
performance to support Henfling’s ineffective assistance of
counsel claim and no plain error.
12. The State asserts the remaining claims are unpreserved,
pointing out that Henfling failed to object at trial to the
remaining instances of alleged misconduct. Henfling admits that
no objection was made at trial, but asserts that his post-trial
motion was adequate to preserve the claims. We have
“consistently held that a defendant who fails to preserve an
objection at trial will not be able to raise that objection on appeal
unless he is able to demonstrate either plain error or exceptional
circumstances.” State v. Larrabee, 2013 UT 70, ¶ 15, 321 P.3d 1136(cleaned up). And more particularly, “with respect to appellate
review of closing arguments, [the Utah Supreme Court has]
previously held that [courts] will not examine the State’s closing
argument if the defendant failed to timely object to it.” Id.(cleaned up); see also State v. Hatch, 2019 UT App 203, ¶ 25 n.8,
455 P.3d 1103 (“Our Supreme Court has held that an objection
that could have been raised at trial cannot be preserved for
appeal in a post-trial motion.” (cleaned up)). The trial court’s
review of Henfling’s post-trial motions also correctly reviewed
his claims as unpreserved and treated them accordingly.
20190150-CA 33 2020 UT App 129State v. Henfling
¶78 “[I]t is important that both the defendant and the
prosecutor have the opportunity to meet fairly the evidence and
arguments of one another.” United States v. Robinson, 485 U.S. 25,
33 (1988). Consequently, prosecutors “have the right to fully
discuss from their perspectives the evidence and all inferences
and deductions it supports and have the duty and right to argue
the case based on the total picture shown by the evidence.” State
v. Roberts, 2019 UT App 9, ¶ 14, 438 P.3d 885 (cleaned up).
Additionally, “counsel for each side has considerable latitude in
closing arguments and may discuss fully his or her viewpoint of
the evidence and the deductions arising therefrom.” State v.
Bakalov, 1999 UT 45, ¶ 56, 979 P.2d 799 (cleaned up). In addition
to discussing evidentiary deductions, a “prosecutor may . . .
make assertions about what the jury may reasonably conclude
from those deductions.” Id. ¶ 57. In reviewing a prosecutor’s
comments, “a court should not lightly infer that a prosecutor
intends an ambiguous remark to have its most damaging
meaning.” Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974). But
a prosecutor’s personal opinions may not be offered either to
“sway the jury to consider factors other than evidence presented
at trial” or if the jury would consider the personal opinion “to be
factual testimony from the prosecutor.” Bakalov, 1999 UT 45,
¶¶ 57–58 (cleaned up); see Thompson, 2014 UT App 14, ¶ 51
(“Counsel may not assert personal knowledge of the facts in
issue or express a personal opinion, being a form of unsworn,
unchecked testimony which tends to exploit the influence of the
prosecutor’s office.” (cleaned up)). “In particular, a prosecutor
must avoid vouching for the credibility of witnesses and
expressing his personal opinion concerning the guilt of the
accused.” Thompson, 2014 UT App 14, ¶ 51 (cleaned up). “A
prosecutor’s statements about the veracity of a witness’s
testimony are permissible only if it is a conclusion that the jury
could have reasonably inferred from the evidence.” Id. ¶ 52
(cleaned up). If a prosecutor’s “statement that the defendant lied
is a fair inference that is supported by the evidence, it is not
improper.” State v. Almaguer, 2020 UT App 117, ¶ 17 (cleaned
20190150-CA 34 2020 UT App 129State v. Henfling
up); see id. (“There is nothing inherently improper about a
prosecutor calling the defendant a liar. Indeed, a prosecutor’s
statement that a witness is lying is analyzed under the same test
as any other comment on the credibility of a witness.” (cleaned
up)).
1. The Prosecutor’s Comments on the Closed Curtains
¶79 Henfling argues that the prosecutor impermissibly
expressed a personal opinion when she stated that “somebody
closed those curtains” after Victim was shot and opined, “I
submit it’s probably the [inaudible] defendant . . . to hide what
was going on inside.” This was not an impermissible personal
opinion but rather a deduction based on the evidence. In her
remarks before the comment at issue, the prosecutor discussed
the expert testimony about blood spatter and the direction of
travel, reminding the jury that the blood spatter was on the
glass, not on the curtains, even though the curtains were closed
when the first responding officer arrived at the scene. Because
Victim was immobilized by his injury and the only other
occupant of the condominium at the time of the shooting denied
entering the living room, the prosecutor could infer that
Henfling closed the curtains. And the prosecutor’s suggestion of
Henfling’s motive to do so was not inconsistent with other
evidence, including testimony from Roommate that Henfling
and Sister remained in the condominium for several minutes
after the shooting, Henfling’s varying testimony, and his hour-
long delay in approaching the police with a claim of self-defense.
Because there was no improper personal opinion in the
prosecutor’s statement, defense counsel did not render
ineffective assistance in foregoing an objection, and the trial
court had no duty to intervene absent an objection.
2. Comments on Witness Credibility
¶80 Henfling next complains that the prosecutor was allowed
to make pervasive statements of “improper personal opinions
20190150-CA 35 2020 UT App 129State v. Henfling
and comments on the credibility of witnesses,” citing four
separate statements. Henfling first points us to the prosecutor’s
statements that Henfling had a “made up story of self-defense”
and had exaggerated his injuries to bolster that claim. Like the
preceding comments, these statements by the prosecutor
followed her discussion of relevant evidence. The prosecutor
highlighted for the jury that neither Henfling nor Sister called
the police after the shooting, nor did either seek medical
assistance for Victim. Rather, Sister called her boyfriend and
went to the convenience store acting like an uninvolved party
merely seeking to charge her phone. Henfling called his brother
and then his father. And it was Henfling’s father who ultimately
called the police to report the shooting. The prosecutor pointed
out that Henfling’s father testified that Henfling had
exaggerated the extent of his injuries to try to get help. The
prosecutor further pointed out that the evidence showed
Henfling had only a bloody nose and there was no physically
detected trauma to support Henfling’s claim he was injured
from being beaten with a rod or choked, nor were there signs of
a serious struggle or fight between Henfling and Victim in the
room where Henfling shot Victim. All this was in addition to
Henfling’s multiple changing accounts of the night’s
occurrences. Accordingly, the challenged statements were not an
improper personal opinion or improper comment on witness
credibility but rather an assertion about what the jury could
reasonably conclude from the evidence and its supportable
deductions.
¶81 Second, Henfling suggests that it was improper for the
prosecutor to quote Henfling’s peculiar statement to the police
that he “did self-defense.” But the prosecutor merely was calling
evidence in the record to the jury’s attention. See State v. Bryant,
965 P.2d 539, 550 (Utah Ct. App. 1998) (“The prosecutor’s
comments, though colloquial, vigorous, and colorful, fell within
the wide latitude permitted counsel in presenting closing
arguments to the jury.”). The prosecutor’s direct quotation of
20190150-CA 36 2020 UT App 129State v. Henfling
Henfling’s own comments is not an improper personal opinion,
improper comment on witness credibility, or reference to
evidence not in the record.
¶82 Third, Henfling directs us to the prosecutor’s comments
telling the jury, “You can’t believe anything he says. . . . The
evidence shows that nothing he said can be believed.” In making
this argument, the prosecutor highlighted the inconsistencies in
Henfling’s multiple accounts of the shooting and the
incompatibility of Henfling’s statements and testimony with the
physical evidence. As such, her argument was not a statement of
personal belief but was an assertion about what the jury should
infer from the evidence during deliberations. See Thompson, 2014
UT App 14, ¶ 51; Almaguer, 2020 UT App 117, ¶ 17.
¶83 Fourth, Henfling raises the prosecutor’s statements about
Sister, that “she can’t be believed either,” that “we know her
account is not completely honest,” and that a portion of her
testimony “is just nonsense” and “didn’t happen.” Similar to the
prosecutor’s comments on Henfling’s testimony, the comments
on Sister’s testimony highlighted inconsistencies among the
multiple accounts provided of the shooting and the physical
evidence. Furthermore, the arguments that a portion of Sister’s
testimony “is just nonsense” and “didn’t happen” were made as
the prosecutor pointed out direct conflicts between Sister’s
testimony and the physical evidence on record concerning
Victim’s position in the room and thus were not based on
personal opinion but were grounded in the prosecutor’s
interpretation of the evidence in the record. As such, the
arguments were not impermissible comments on witness
credibility. 13 See Thompson, 2014 UT App 14, ¶ 51.
13. Henfling similarly asserts the prosecutor offered improper
personal opinions regarding the father’s testimony, but does
(continued…)
20190150-CA 37 2020 UT App 129State v. Henfling
¶84 Therefore, Henfling cannot establish either plain error on
the part of the trial court or ineffective assistance of counsel
based on his attorney’s failure to object.
3. Comments on Self-Defense
¶85 Henfling next contends that “the Prosecutor repeatedly
misstated the law of self-defense.” He first cites the prosecutor’s
comments that Henfling was “closest to the door” and that “he
could have left.” To begin, we observe that the prosecutor was
not speaking about self-defense regarding the comment about
Henfling’s ability to leave but was discussing the depraved-
indifference variant of murder and whether Henfling could have
avoided the risks he undertook in shooting Victim in the head.
¶86 Next, the prosecutor’s comment that Henfling was
“closest to the door” at the time of the shooting was in reference
to disproving self-defense, but not made in the context Henfling
suggests. Henfling asserts the comment was error because “there
is no duty to retreat from an assault.” (Citing In re M.S., 584 P.2d
914, 916 (Utah 1978).) But the prosecutor’s statement was among
a series of comments meant to rebut Henfling’s claim that Victim
posed a threat of force that “would result in death or serious
harm.” The prosecutor never argued Henfling had a duty to
retreat. She said, “All [Victim] had to defend himself were his . . .
hands and his feet. There was no weapon. [Victim] had no
weapon. I’ll say it again, Henfling was closest to the door. No
probability that any force [Victim] was using would result in
death or serious harm.” It was proper for the prosecutor to offer
(…continued)
nothing more than make the assertion. Accordingly, Henfling
has inadequately briefed the issue and thus failed to carry his
burden of persuasion as it relates to the comments regarding the
father’s testimony. See Utah R. App. P. 24(a)(8).
20190150-CA 38 2020 UT App 129State v. Henfling
arguments regarding the level of any threat Victim may have
posed. And it was permissible for the prosecutor to suggest that
Victim may have posed a lesser threat, given Henfling’s position
closest to the door, than he would have if Henfling had been
trapped in the corner of the room or if Victim had been in
possession of a weapon. Accordingly, the prosecutor’s
comments were not improper.
¶87 Henfling next takes issue with the prosecutor’s argument
that Victim “did not pose an immediate threat of death to
[Henfling].” Henfling argues the statement was a
misrepresentation of the law because to justify deadly force in
self-defense, a party may show that force was “necessary to
prevent death or serious bodily injury . . . , or to prevent the
commission of a forcible felony.” (Referencing Utah Code Ann.
§ 76-2-402(2) (Supp. 2019)). We cannot agree with Henfling’s
suggestion that any reference to statute be a verbatim recitation
of the text. Attorneys often use parlance to keep their comments
succinct and to avoid detracting from the point they are making,
especially during closing argument, a practice permitted under
the considerable latitude afforded to counsel during closing
argument. See Bakalov, 1999 UT 45, ¶ 56. That is what the
prosecutor did in the instances cited by Henfling. There are
ample other instances in the record of the prosecutor making
reference to the full statutory criteria at issue in the case during
closing argument. Additionally, the jury had the instruction on
self-defense that adequately informed it of the relevant criteria. 14
14. Henfling also challenges the prosecutor’s comment about his
injury or lack thereof, asserting it was improper because no
injury is required to prove self-defense. But Henfling fails to
identify a place in the record where such an argument was
made. Accordingly, he has failed to carry his burden on appeal.
See Utah R. App. P. 24(a)(8). Additionally, even though it is true
that no injury is required to prove self-defense, see Utah Code
(continued…)
20190150-CA 39 2020 UT App 129State v. Henfling
Therefore, the prosecutor’s argument using abbreviated
language in this instance was not improper.
¶88 Lastly, Henfling argues that the prosecutor misstated the
reasonable belief standard of self-defense as subjective rather
than objective. The prosecutor said a defendant is justified in
self-defense if “he reasonably believes, it has to be his reasonable
belief” that it is necessary, and that “it’s his reasonable belief. It’s
not what we think might be a reasonable belief, but it’s what he
thought.”
¶89 As previously discussed, the self-defense statutes require
both that an actor hold a “belief that the circumstances provided
a legal justification or excuse for the conduct” and that the
actor’s belief be objectively reasonable. See Utah Code Ann. § 76-
5-203(4)(b) (LexisNexis 2017) (imperfect self-defense); id. § 76-2-
402(2)(a) (Supp. 2019) (perfect self-defense); see also State v.
Sherard, 818 P.2d 554, 561 (Utah Ct. App. 1991) (explaining that
“reasonable” in the context of the self-defense statute means
“objectively reasonable”). Even if the prosecutor’s argument
could be viewed as an isolated misstatement of the law, it was
not a mistake that was so improper as to require defense counsel
(…continued)
Ann. § 76-2-402(2) (LexisNexis Supp. 2019), an injury, or lack
thereof, could be evidence used to prove or disprove the
formation of a reasonable belief necessary to justify self-
defense—especially if the claimed reasonable belief is premised
on testimony suggesting serious injury was sustained but such
testimony is undermined by other evidence. We presume any
argument by the prosecutor on this point was directed at witness
credibility rather than at misstating the law. See Donnelly v.
DeChristoforo, 416 U.S. 637, 647 (1974) (“[A] court should not
lightly infer that a prosecutor intends an ambiguous remark to
have its most damaging meaning.”).
20190150-CA 40 2020 UT App 129State v. Henfling
to intervene with an objection, see State v. Hulse, 2019 UT
App 105, ¶ 44, 444 P.3d 1158 (reviewing attorney’s failure to
object to prosecutor’s statements during closing argument for
“whether they were so improper that counsel’s only defensible
choice was to interrupt those comments with an objection”
(cleaned up)), or so obvious and prejudicial as to warrant sua
sponte intervention by the court, State v. Roberts, 2019 UT App 9,
¶ 14, 438 P.3d 885 (“The court must be certain that a prosecutor’s
statement is both highly prejudicial and obviously wrong before
interrupting closing argument sua sponte.” (cleaned up)).
Rather, defense counsel could and did clarify the standard in
closing argument with reference to the jury instruction capturing
the correct standard. Accordingly, there was no prejudice
stemming from the misstatement to support a claim of
prosecutorial misconduct under the plain error or ineffective
assistance of counsel claims.
¶90 Because we do not discern misconduct—or at least no
prejudicial misconduct—in the challenged statements, we
conclude that there is no support for Henfling’s ineffective
assistance of counsel or plain error claims. 15
15. Henfling also contends “the cumulative effect of the several
errors” was prejudicial. “We will reverse a conviction under this
doctrine when the cumulative effect of the several errors
undermines our confidence that a fair trial was had.” State v.
Ringstad, 2018 UT App 66, ¶ 33, 424 P.3d 1052 (cleaned up).
Because we see no harmful error—much less more than one—
there are no errors to cumulate, and the doctrine is inapplicable.
See State v. Martinez-Castellanos, 2018 UT 46, ¶ 35, 428 P.3d 1038(“The cumulative error doctrine applies only to errors that could
conceivably harm a party in some way. Errors with no potential
for harm do not accumulate.”).
20190150-CA 41 2020 UT App 129State v. Henfling
V. Motion for Rule 23B Remand
¶91 Henfling also requests this Court “to remand the case to
the trial court for entry of findings of fact, necessary for [our]
determination of a claim of ineffective assistance of counsel”
pursuant to rule 23B of the Utah Rules of Appellate Procedure.
See Utah R. App. P. 23B(a). Henfling asserts he received
ineffective assistance of counsel because defense counsel did not
call an expert “to explain that the behavior and statements made
by Henfling and [Sister] were typical and consistent reactions of
someone in the throes of a traumatic experience.” We deny
Henfling’s motion because he does not make “a nonspeculative
allegation of facts, not fully appearing in the record on appeal,
which, if true, could support a determination that counsel was
ineffective.” See id.¶92 Even if Henfling has found an expert willing and able
to provide the indicated testimony at trial, defense counsel’s
decision not to use an expert, but to present the information
through other means, is not objectively unreasonable.
“[C]ounsel’s decision to call or not to call an expert witness is
a matter of trial strategy, which will not be questioned
and viewed as ineffectiveness unless there is no reasonable
basis for that decision.” State v. Tyler, 850 P.2d 1250, 1256
(Utah 1993); see also State v. Ray, 2020 UT 12, ¶ 36 (explaining
the determination of a valid strategic reason for counsel’s
actions means that counsel did not perform deficiently, but
the determination that counsel did not have a valid strategy
does not automatically equate to constitutional inadequacy,
and “the ultimate question [is] whether counsel’s act or
omission fell below an objective standard of reasonableness”).
Here, there was a reasonable basis for defense counsel’s
decision not to use expert testimony. First, the idea that
“trauma and alcohol” affected Henfling’s and Sister’s reactions
and memories was presented through Sister’s direct testimony
and addressed in defense counsel’s arguments. See State v.
20190150-CA 42 2020 UT App 129State v. Henfling
Montoya, 2017 UT App 110, ¶¶ 26–29, 400 P.3d 1193 (holding
defense counsel was not ineffective for decision to not call an
expert witness where relevant information was presented by
other means, and stating that “the calculations of counsel in
weighing the pros and cons of one strategy over another is, in
essence, a judgment about what is most likely to work to the
client’s benefit in a complex trial process that requires that many
choices be made”).
¶93 Second, the information did not require expert
testimony because it was fairly intuitive. Defense counsel
could reasonably conclude expert testimony on such factors
that are “intuitive” and which “fall[] within the common
sense of an average juror” would be “unnecessary and
unhelpful to the jury.” See United States v. Angleton, 269 F.
Supp. 2d 868, 875–76 (S.D. Tex. 2003) (citing United States v.
Stevens, 935 F.2d 1380 (3d Cir. 1991)); see also State v. Houston,
2015 UT 40, ¶¶ 83, 85, 353 P.3d 55 (as amended) (reiterating
“that expert testimony is most helpful to explain topics that
are beyond the common knowledge of ordinary jurors” and
holding there was no ineffectiveness in decision to not call
an expert because counsel could reasonably conclude that
jurors would understand the topic based on life experience
(cleaned up)); cf. State v. King, 2012 UT App 203, ¶ 23, 283 P.3d
980 (“While expert testimony might have been helpful if offered,
we are unwilling to require that in every case where a key
witness suffers from both addiction and mental illness such
testimony must be offered. Under the present facts, we are not
convinced that defense counsel’s failure to obtain such an expert
fell below the wide range of reasonable professional assistance.”
(cleaned up)).
¶94 Third, assuming defense counsel was aware of this
expert, he reasonably may have concluded that any benefit
in calling the expert would have been offset by the
monetary cost. See Harrington v. Richter, 562 U.S. 86, 107 (2011)
20190150-CA 43 2020 UT App 129State v. Henfling
(“Counsel was entitled to formulate a strategy that was
reasonable at the time and to balance limited resources in
accord with effective trial tactics and strategies.”).
¶95 Fourth, defense counsel may have concluded that
using an expert would have called unwanted attention to
the varying accounts offered by Henfling and Sister, opened
the door to discredit their testimonies, or undermined
Henfling’s claim of self-defense—a claim that relied on their
memories of the events. See State v. Willey, 2011 UT App 23, ¶ 18,
248 P.3d 1014 (“Trial counsel’s decision not to have a
memory expert testify at trial fell well within the bounds
of sound trial strategy because of counsel’s legitimate
concerns about the potentially detrimental effect of such
expert testimony.”). Because there was a reasonable basis
for defense counsel’s decision not to call the expert, his
decision was not objectively unreasonable.
¶96 Additionally, Henfling could not show prejudice
resulted from defense counsel’s decision. Because any
testimony by the expert would have been cumulative of
other evidence, Henfling cannot establish that the jury
would have reached a different conclusion. See Montoya, 2017
UT App 110, ¶¶ 29–30; King, 2012 UT App 203, ¶ 24.
Furthermore, even if the expert testimony could have
influenced the jury’s perception of the witnesses’ memory
recall ability, it could not overcome the significant physical
and forensic evidence—not to mention the blatantly
contradictory facts offered by Henfling’s varying accounts—
upon which the jury relied to determine the details of the
event and to convict Henfling.
¶97 Because Henfling cannot establish that defense counsel
was ineffective even with the benefit of a remand, we deny the
motion.
20190150-CA 44 2020 UT App 129State v. Henfling
CONCLUSION
¶98 Henfling’s claims of trial court error are unavailing.
Because there was sufficient evidence to submit the case to the
jury, the court did not err by declining to dismiss the murder
charge. The court also did not err in upholding the felony-
discharge-of-a-firearm conviction because the conviction applied
in concert as a predicate offense with the murder conviction.
Additionally, the trial court did not err by denying the motion
for a new trial. No error in the jury instruction was harmful to
Henfling. Moreover, Henfling has not shown that he was
entitled to a new trial because he has not established error by the
trial court or ineffective assistance of counsel in the alleged
instances of prosecutorial misconduct as the prosecutor’s
arguments were proper.
¶99 Affirmed.
20190150-CA 45 2020 UT App 129