State v. White

2016 UT App 241THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
COY BRANDON WHITE,
Appellant.
Opinion
No. 20141003-CA
Filed December 15, 2016
Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 121908920
Nicole G. Farrell, Alan S. Mouritsen, and Adam E.
Weinacker, Attorneys for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and J. FREDERIC VOROS JR. concurred.
MORTENSEN, Judge:
¶1 Defendant Coy Brandon White was found uninvited and
without pants in a darkened bathroom by Victim, who engaged
in combat with his newfound adversary. A jury convicted
Defendant of aggravated burglary and aggravated assault, and
he now appeals. We affirm.
BACKGROUND
¶2 On the evening of May 11, 2012, Victim arrived home and
greeted his son (Son) before making his way to the master
bathroom to wash his hands. As Victim approached the
bathroom, he saw the silhouette of a man in his underwear.
State v. White
Victim asked the man who he was and what he was doing, to
which the man replied, ‚I’m here for your daughter.‛ Victim’s
daughter was not home at the time. Using the bedroom door,
which is adjacent to the bathroom, Victim attempted to trap the
man in the bathroom. The man ‚stuck the end of a broom
through an opening in the doorway‛ and hit Victim. Victim then
opened the bedroom door, and the two men engaged in a
physical struggle. At some point Son came in, and Victim
instructed him to go get a knife. Son returned with two, giving
one to Victim. Victim did not immediately use the knife against
the man because he felt ‚compassion not to kill him.‛ The man
momentarily retreated to retrieve a clothes iron from the hall,
which he used to strike Victim. When Victim countered with the
knife, the man ‚started backing up defending himself with the
iron,‛ then dropped the iron and fled the apartment.
¶3 Police found blood on the iron and sent the blood to the
Utah State Crime Lab for testing. The DNA from the blood
matched a DNA sample in Utah’s Combined DNA Index
System. The sample belonged to Defendant. Neither Victim nor
Son could identify Defendant at trial as the man in their home,
and Victim failed to select Defendant’s picture from a photo
array following the incident. No one in Victim’s family knew
Defendant; he had never been invited to enter their home.
¶4 The State charged Defendant with aggravated burglary
and aggravated assault, first and third degree felonies
respectively. See Utah Code Ann. § 76-6-203 (LexisNexis 2012);
id. § 76-5-103. During discovery, the State filed a motion under
rule 16 of the Utah Rules of Criminal Procedure requesting a
sample of Defendant’s DNA via buccal swab—a method of
collecting DNA by swabbing the interior surface of a person’s
cheek. The motion was supported by an affidavit from the
investigating officer. Defendant objected to the motion. The trial
court overruled Defendant’s objection, and after hearing
argument, granted the State’s motion, ordering Defendant to
provide the sample. Defendant refused. The State then filed a
second motion, again under rule 16, requesting an order
20141003-CA 2 2016 UT App 241State v. White
allowing it to use force to obtain Defendant’s DNA sample.
Again Defendant objected, arguing that rule 16 does not
authorize the use of force in obtaining a DNA sample, and again
the trial court granted the State’s motion. Defendant thereafter
allowed investigators to take a sample of his DNA without force,
and this was the only evidence the State presented at trial to
prove Defendant’s identity as the man in Victim’s apartment.
¶5 Defendant’s trial strategy involved alternative defenses.
Either (1) Defendant was not the man who Victim found in his
bathroom or (2) Defendant’s actions were justified as a result of
self-defense or compulsion. As Defendant explains,
‚Accordingly, the actions of [Victim] the night of the incident
were relevant to *Defendant’s+ defense.‛ For this reason,
Defendant informed the trial court that Victim had entered a
plea in abeyance on a 2010 assault charge and stated that if
Victim put his own character at issue, Defendant would question
him about the 2010 charge.
¶6 In the course of Victim’s testimony, he stated that he had
‚felt compassion not to kill‛ the man in his bathroom and that he
did not ‚have a criminal mind.‛ Defense counsel, during a bench
conference, asserted that these statements were ‚somewhat
ambiguous, [and] may be a question of interpretation‛ and
asked permission to cross-examine Victim on ‚what it is that he
meant.‛ In defense counsel’s view, ‚depending on *Victim’s+
answer,‛ that could ‚open the door to some discussion of the‛
plea in abeyance. The trial court refused the request.
¶7 Also during his testimony, Victim twice made comments
indicating that he ‚felt more accused than the defendant.‛ 1 After
the first comment, Defendant requested, and the trial court gave,
1. Only one of these comments is explicitly indicated in the trial
transcript. The parties’ briefs and the context of the second
comment indicate that Victim made an earlier comment along
the same lines, which for some reason was not recorded.
20141003-CA 3 2016 UT App 241State v. White
a curative instruction to the jury to disregard the comment.
Following the second comment, Defendant moved for a mistrial.
The trial court denied the motion but indicated its willingness to
give a second curative instruction; Defendant never requested
this second instruction.
¶8 Finally, Defendant raised the issue of Victim’s status as an
undocumented immigrant. Victim had filed I-918 petitions—
used to obtain what are commonly called U visas—for himself
and his family. Defendant presented an expert at trial who
explained that U visas confer legal status on victims of violent
crimes. Defendant used this evidence to suggest a possible
motive for Victim to fabricate the details of that night, namely,
obtaining a more favorable immigration status. Defendant also
sought to question Victim concerning his refusal to provide
defense counsel with a copy of the I-918 petitions. The trial court
had reviewed the petitions in camera and concluded that there
was nothing potentially exculpatory in them. It therefore barred
that line of questioning, explaining, ‚*T+hat is not coming in,
that’s not relevant for any purpose. . . . That’s his right.‛
¶9 The jury convicted Defendant of aggravated burglary and
aggravated assault. Defendant now appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 Defendant first argues that the trial court erred in
granting the State’s rule 16 motions to obtain a sample of his
DNA—particularly the second motion, which sought to obtain
the sample by force—because the State should have been
required to obtain a warrant. Normally, ‚rulings on motions to
compel . . . are reviewed for an abuse of discretion.‛ Macris
& Assocs., Inc. v. Neways, Inc., 2006 UT App 33, ¶ 8, 131 P.3d 263;
see also State v. Tanner, 2011 UT App 39, ¶ 5, 248 P.3d 61. But
because Defendant’s argument rests on whether rule 16 is a
proper mechanism for obtaining DNA evidence by force,
resolution of this issue requires us to interpret the language of
rule 16 and decide whether Defendant was afforded necessary
20141003-CA 4 2016 UT App 241State v. White
constitutional protections. We therefore review the trial court’s
grant of the State’s motions for correctness. See Ostler v. Buhler,
1999 UT 99, ¶ 5, 989 P.2d 1073 (‚The proper interpretation of a
rule of procedure is a question of law, and we review the trial
court’s decision for correctness.‛); State v. Holland, 921 P.2d 430,
433 (Utah 1996) (‚*T+he ultimate question of whether the trial
court strictly complied with constitutional and procedural
requirements . . . is a question of law that is reviewed for
correctness.‛).
¶11 The second and third issues on appeal concern the trial
court’s restriction of Defendant’s cross-examination of Victim,
particularly regarding Victim’s 2010 assault charge and his I-918
petitions. We generally review the trial court’s decisions
concerning the scope of cross-examination, including its
decisions to allow or exclude evidence, for an abuse of
discretion. State v. Gomez, 2002 UT 120, ¶ 12, 63 P.3d 72.
¶12 Defendant also argues that the trial court should have
granted his motion for a mistrial following Victim’s statements
that he felt more accused than Defendant.
Because a district judge is in an advantaged
position to determine the impact of courtroom
events on the total proceedings, once a district
court has exercised its discretion and denied a
motion for a mistrial, we will not reverse the
court’s decision unless it ‚is plainly wrong in that
the incident so likely influenced the jury that the
defendant cannot be said to have had a fair trial.‛
State v. Allen, 2005 UT 11, ¶ 39, 108 P.3d 730 (quoting State v.
Wach, 2001 UT 35, ¶ 45, 24 P.3d 948).
¶13 Notwithstanding the standards of review just outlined,
we will reverse Defendant’s convictions only if we are convinced
that the trial court’s errors made ‚the likelihood of a different
outcome . . . sufficiently high to undermine confidence in the
20141003-CA 5 2016 UT App 241State v. White
verdict.‛ State v. Knight, 734 P.2d 913, 920 (Utah 1987); see State v.
Draper-Roberts, 2016 UT App 151, ¶ 16, 378 P.3d 1261 (dealing
with harmlessness in an abuse-of-discretion context); State v.
Hawkins, 2016 UT App 9, ¶ 33, 366 P.3d 884 (dealing with
harmlessness in a correctness context); see also Utah R. Crim. P.
30(a) (‚Any error, defect, irregularity or variance which does not
affect the substantial rights of a party shall be disregarded.‛);
State v. Jimenez, 2016 UT App 138, ¶ 9, 379 P.3d 50 (explaining
that even if we determine certain evidence should have been
admitted, we will reverse only if admission of that evidence
would likely have led to a different result at trial). Thus, even if
we determine or assume that the trial court erred in one of the
ways Defendant identifies, we will reverse only if there is a
reasonable likelihood that Defendant was harmed by the error or
by the cumulative effect of several errors. When it is more
expedient to do so, we focus our attention first on what harm, if
any, Defendant suffered as a result of the alleged errors. See State
v. Cox, 2012 UT App 234, ¶ 5, 286 P.3d 15 (indicating that we
need not decide whether an ‚error was obvious or invited, or
whether counsel was deficient in failing to object to it because
we conclude that the error was harmless‛ (footnote omitted)); cf.
Archuleta v. Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232 (explaining
that under the ineffective-assistance-of-counsel standard, where
it is easier to dispose of a claim on prejudice grounds, the court
will do so without analyzing the reasonableness of counsel’s
performance).
¶14 Finally, Defendant contends that ‚the errors presented on
appeal warrant reversal of [his] convictions under the
cumulative error doctrine.‛ ‚Under the cumulative error
doctrine, we apply the standard of review applicable to each
underlying claim or error‛ and ‚reverse only if the cumulative
effect of multiple errors undermines our confidence that a fair
trial was had.‛ State v. Davis, 2013 UT App 228, ¶ 16, 311 P.3d
538 (citations and internal quotation marks omitted).
20141003-CA 6 2016 UT App 241State v. White
ANALYSIS
I. Authorization of Use of Force To Retrieve Defendant’s DNA
¶15 Defendant contends that the State violated his
constitutional protection against unreasonable searches and
seizures, see Utah Const. art. I, § 14,2 when it relied on rule 16 of
the Utah Rules of Criminal Procedure to obtain authorization for
the use of force in securing a sample of his DNA. We conclude
that the trial court appropriately granted the State’s rule 16
motion, authorizing the use of force in obtaining a sample of
Defendant’s DNA.3
¶16 State v. Easthope, 668 P.2d 528 (Utah 1983), addressed a
nearly identical issue. There, the district court had ordered the
defendant to surrender body and pubic hair, saliva, and blood
samples under the predecessor to rule 16. Id. at 530, 531; see also
Utah Code Ann. § 77-35-16 (Allen Smith Co. 1982). The
defendant argued that ‚the taking of his blood sample without a
search warrant was . . . unconstitutional.‛ Easthope, 668 P.2d at
531–32 (footnote omitted). The Utah Supreme Court reasoned
that ‚the purpose of the warrant requirement . . . was not to exalt
the formality of the warrant but to assure that the decision to
compel an invasion of a person’s body in search of evidence of
guilt was made by a neutral and detached magistrate.‛ Id. at 532
(citation and internal quotation marks omitted). The court then
2. Defendant does not allege a violation of the Fourth
Amendment to the United States Constitution.
3. We note that although the State ultimately did not need to
resort to the use of force, see supra ¶ 4, Defendant’s argument is
that ‚Rule 16 does not permit the warrantless taking of DNA by
force.‛ Defendant is not precluded from pursuing this argument
simply because he cooperated instead of risking injury by
requiring the State to take his DNA by force.
20141003-CA 7 2016 UT App 241State v. White
set forth the following analysis, which applies directly to this
case:
That concern was fully satisfied in the
circumstances of this case. Following defendant’s
arrest on a warrant, the State filed a motion to
compel discovery of body fluids. Defendant and
his counsel were notified, an adversary hearing
was held, and . . . the magistrate ordered the taking
of a blood sample. That course of events, which
provided the defendant greater procedural
protection than he has under a search warrant
(notably his participation in the hearing), satisfied
the constitutional requirements for the invasion of
a person’s body.
Id.¶17 Not only does this analysis from Easthope support the
conclusion that the trial court did not err in granting the State’s
motion in this case, but it also echoes the outcome of similar
cases throughout the country. See, e.g., United States v. Pipito, 861
F.2d 1006, 1009–10 (7th Cir. 1987) (comparing retrieving
fingerprints to retrieving blood samples and concluding that
force may be used to obtain such materials because ‚while it
may not enhance the image of justice to force a witness kicking
and screaming . . . the choice has been made by the witness, not
the court‛ (omission in original) (citation and internal quotation
marks omitted)); Simmons v. Secretary, Dept. of Corr., No. 8:08-cv-
2433-T-17EAJ, 2010 WL 1408434, at *12 (M.D. Fla. April 6, 2010)
(deciding, where the Florida Rules of Criminal Procedure
authorized a court to require the defendant to ‚‘permit the
taking of samples of the defendant’s blood, hair, and other
materials of the defendant’s body that involves no unreasonable
intrusion,’‛ that ‚the Court had the ability to require the
Defendant to provide a saliva sample without needing a search
warrant‛ (quoting Fla. R. Crim. P. 3.220)); People v. Treece, 511
N.E.2d 1361, 1367 (Ill. App. Ct. 1987) (concluding that Illinois
20141003-CA 8 2016 UT App 241State v. White
Supreme Court Rule 413 ‚can be used to obtain a blood sample
from a defendant without resort to a search warrant following
indictment or information‛).
¶18 Defendant’s attempts to distinguish Easthope are
unavailing. He claims that ‚the Easthope court did not analyze
the precise language of Rule 16(h) or its interplay with the State’s
more recent constitutional jurisprudence and protection of
individual rights.‛ But as we explained, see supra ¶ 16, the statute
relied on in Easthope was simply an earlier version of rule 16, and
Defendant does not attempt to explain how the existence of two
versions of the same rule, nearly identical in substance but
different in name, affects the outcome on appeal. And the mere
passage of time since it was decided, without more, does not
make Easthope any less controlling.
¶19 As in Easthope, the trial court in this case used the then-
current discovery rules to provide Defendant more protection
than he would have received if the State had simply obtained a
warrant for a sample of his DNA. See infra ¶ 24. In this we see no
error.
¶20 Even without reference to the Easthope analysis,
application of the relevant criminal discovery rules yields the
same result. Rule 16 of the Utah Rules of Criminal Procedure
provides that, ‚*s+ubject to constitutional limitations, the accused
may be required to . . . permit the taking of samples of blood,
hair, fingernail scrapings, and other bodily materials which can
be obtained without unreasonable intrusion.‛ Utah R. Crim. P.
16(h)(6). That same rule provides that if a party fails to comply,
‚the court may order such party to permit the discovery or
inspection, . . . or it may enter such other order as it deems just
under the circumstances.‛ Id. R. 16(g). Here, the trial court
required Defendant to provide ‚other bodily materials‛ when it
ordered him to submit to a buccal swab. See id. R. 16(h)(6). Then,
when Defendant failed to submit to such procedure, the trial
court authorized the State to use force in obtaining the DNA
sample.
20141003-CA 9 2016 UT App 241State v. White
¶21 Other courts have consistently described buccal swabs as
minor intrusions. See, e.g., Maryland v. King, 133 S. Ct. 1958, 1980
(2013) (‚minor intrusion of a brief swab of his cheeks‛); Haskell v.
Harris, 669 F.3d 1049, 1050 (9th Cir. 2012) (‚a de minimis
intrusion‛), aff’d, 745 F.3d 1269 (9th Cir. 2014) (en banc); Friedman
v. Boucher, 580 F.3d 847, 863 (9th Cir. 2009) (‚far less intrusive
than drawing blood and a relatively minor intrusion‛). And
Defendant does not contend that the State’s buccal swab
procedure resulted in an ‚unreasonable intrusion.‛ See Utah R.
Crim. P. 16(h)(6). Instead, Defendant argues that the trial court’s
order failed to comport with ‚constitutional limitations‛ by
authorizing the use of force. See id. He further claims that
discovery rules cannot be used to circumvent the warrant
requirement for searches. In Defendant’s view, while rule 16 can
be used to ‚require* the accused+ to permit the taking of . . .
bodily materials that can be obtained without unreasonable
intrusion,‛ ‚the accused can decide to comply with the order, or
refuse to comply and face the consequences.‛ According to
Defendant, those consequences cannot include ‚use of
reasonable force.‛4
4. Defendant suggests that State v. Bakalov, 1999 UT 45, 979 P.2d
799, supports this argument. Bakalov involved a rape defendant
who sought to have an expert evaluate a semen sample found on
his victim. Id. ¶ 54. The trial court ‚granted the request subject to
*the defendant’s+ first submitting a sample of his blood to the
State.‛ Id. ¶ 10. Because the defendant refused to provide the
sample, the court denied his motion. Id. On appeal, our supreme
court concluded that the trial court’s imposed condition for
testing ‚comported with Utah Rule of Criminal Procedure
16(h)(6).‛ Id. ¶ 54. Specifically, recognizing the significant
discretion afforded trial courts ‚to remedy any prejudice to a
party resulting from a breach of the criminal discovery rules,‛
the supreme court determined that forcing the defendant to
choose between providing a sample of his DNA or not having
the semen sample evaluated did not ‚violate the constitution or
(continued<)
20141003-CA 10 2016 UT App 241State v. White
¶22 We cannot agree with Defendant’s interpretation of the
rule, which would effectively preclude the State from seeking
information through discovery if that information could
properly be the subject of a warrant. Instead, the rule grants the
trial court considerable discretion to make discovery orders, so
long as those orders comply with constitutional requirements.
The constitutional requirement applicable to searches of a
defendant’s person and seizure of his or her DNA is one of
reasonableness: ‚The right of the people to be secure in their
persons . . . against unreasonable searches and seizures shall not
be violated . . . .‛ Utah Const. art. I, § 14.
¶23 The most common way the law ensures that a search and
seizure is reasonable is to require a warrant, which ‚shall *not+
issue but upon probable cause supported by oath or affirmation,
particularly describing the place to be searched, and the person
or thing to be seized.‛ Id. Probable cause ‚undoubtedly requires
a nexus between suspected criminal activity and the place to be
searched.‛ State v. Dable, 2003 UT App 389, ¶ 5, 81 P.3d 783(citation and internal quotation marks omitted). Probable cause
is typically established by affidavit, as occurred here. In the
present case, the suspected criminal activity was a man’s
unlawful entry into Victim’s home and the ensuing altercation,
which left blood on the clothes iron. The place to be searched
was Defendant’s person via a buccal swab for DNA. The strong
nexus between the criminal activity and the place to be searched
was the match between the DNA in the blood found on the iron
(Id. (citations and internal quotation
marks omitted). But this holding from Bakalov—that a particular
sanction was an appropriate response to that defendant’s refusal
to provide a DNA sample—cannot be interpreted to mean that
no other condition or sanction would have been appropriate. In
short, Bakalov has no application here except to underscore that a
trial court has significant discretion in fashioning an appropriate
sanction.
20141003-CA 11 2016 UT App 241State v. White
and Defendant’s preexisting DNA sample in Utah’s Combined
DNA Index System. Probable cause existed for the retrieval of
Defendant’s DNA,5 and we are confident that if the trial court
had required the State to obtain a warrant—rather than granting
the rule 16 motion—the State would have been readily able to do
so. For this reason, we have no difficulty concluding that the trial
court’s order complied with the ‚constitutional limitations‛
imposed on rule 16 discovery orders. See Utah R. Crim. P. 16(h).
¶24 This is to say nothing of the fact that Defendant was likely
afforded more protection than if the State had simply obtained a
warrant, which is typically accomplished ex parte. Utah law
requires the State, when seeking a search warrant, to
demonstrate ‚probable cause, supported by oath or affirmation‛
and to ‚particularly describe the person or place to be searched
and the person, property, or evidence to be seized.‛ Utah R.
Crim. P. 40(c)(2). Here, the State attached such an affidavit to its
first rule 16 motion. Additionally, Defendant was given the
opportunity to participate in two separate hearings regarding
the State’s rule 16 motions before he surrendered a sample of his
DNA—something search-warrant subjects do not have the
opportunity to do. See State v. Easthope, 668 P.2d 528, 531–32
(Utah 1983).
¶25 Finally, subsection (g) of rule 16 provides that where a
party fails to comply with a discovery obligation, ‚the court may
order such party to permit the discovery or inspection, grant a
continuance, or prohibit the party from introducing evidence not
disclosed, or it may enter such other order as it deems just under the
circumstances.‛ Utah R. Crim. P. 16(g) (emphases added). Thus,
rather than limiting a trial court’s discretion, the rule provides
for a number of specific options for the trial court to consider,
including any order that circumstances might justify.
Accordingly, when Defendant refused the order for a buccal
5. On appeal, Defendant does not argue that probable cause did
not exist.
20141003-CA 12 2016 UT App 241State v. White
swab, the trial court was well within its discretion in ordering
the non-intrusive sampling by force, if necessary.
II. Victim’s Prior Assault Charge
¶26 We next consider whether the trial court abused its
discretion when it limited Defendant’s cross-examination of
Victim about two specific statements. These statements,
Defendant contends, ‚bolstered *Victim’s+ character for
peacefulness.‛ First, on direct examination, Victim explained
that while he was fighting with the intruder, ‚I noticed that he
was a young man. . . . And I felt compassion not to kill him,
because I imagine my son, so I threw the knife to the ground.‛
Then, he reiterated, ‚I repeat, I didn’t want to cause any harm to
him because I don’t have a criminal mind.‛ Defendant’s counsel
asked permission ‚to inquire into what it is he meant,‛ and
indicated that ‚depending on his answer, what that might be, it
may, in fact, open the door to some discussion of‛ Victim’s prior
assault charge.6 The trial court decided it would not allow such
an inquiry, explaining, ‚I don’t think that was sufficient opening
up [of] any door to allow further follow up at this time.‛
Defendant’s arguments that this decision was erroneous are
unpreserved.
¶27 Defendant first argues that he should have been allowed
to question Victim as requested under rule 405 of the Utah Rules
of Evidence, particularly under the rule’s provision that ‚*o+n
cross-examination of the character witness, the court may allow
an inquiry into relevant specific instances of the person’s
conduct.‛ See Utah R. Evid. 405(a). This rule is intertwined with
rule 404, which governs the admission of character evidence.
Courts use rule 404 to determine when character evidence is
admissible and rule 405 to determine how that evidence is to be
admitted. Compare id. R. 404, with id. R. 405.
6. The statement of counsel is unambiguous in context. Counsel
maintained that ‚the door‛ had not yet been opened.
20141003-CA 13 2016 UT App 241State v. White
¶28 But Defendant never raised below—and thus did not
preserve for appeal—any argument regarding rule 404 or 405
admissibility. To have preserved his challenge for our review,
Defendant must have ‚provide*d+ the trial court with the
opportunity to address, and correct, a claimed error‛ by
‚specifically‛ raising it. See State v. Crabb, 2011 UT App 440, ¶ 2,
268 P.3d 193 (per curiam).
Issues that are not raised at trial are usually
deemed waived. An issue is preserved for appeal
only if it was presented to the trial court in such a
way that the trial court had an opportunity to rule
on it. The appellant must present the legal basis for
a claim to the trial court, not merely the underlying
facts or a tangentially related claim.
State v. Martinez, 2015 UT App 193, ¶ 27, 357 P.3d 27 (alterations,
citations, and internal quotation marks omitted).
¶29 A review of the transcript in this matter shows that rules
404 and 405 of the Utah Rules of Evidence were not the bases of
any objection or ruling. As quoted above, the only request was to
question the witness to see if further questioning ‚may, in fact,
open the door.‛ This is a different question entirely and is
governed by rule 611(b) of the Utah Rules of Evidence (which
addresses the scope of cross-examination), not rules 404 or 405.
Further, Defendant does not argue on appeal that further
questioning might have opened the door. Thus, Defendant both
does not appeal the actual ruling of the trial court and did not
provide the trial court with the opportunity to make any rulings
under rules 404 or 405. Therefore, this argument was not
preserved, and we decline to address it further.
¶30 Defendant next argues that Victim’s assault charge was
admissible under rule 608 of the Utah Rules of Evidence, which
allows introduction of evidence about a witness’s character for
untruthfulness. See Utah R. Evid. 608. Defendant maintains that
when Victim claimed on the witness stand to be compassionate
20141003-CA 14 2016 UT App 241State v. White
and to lack a criminal mind, the assault charge became evidence
of Victim’s character for untruthfulness because it showed that
this testimony was not true. Furthermore, Defendant argues that
such evidence did not run afoul of rule 404(b), citing the Utah
Supreme Court’s decision in State v. Houskeeper, 2002 UT 118, 62
P.3d 444.
¶31 We decline to review this issue because it, too, is
unpreserved. Defendant never informed the trial court that the
assault charge could potentially be used to demonstrate a lack of
credibility on the part of Victim, except in the limited context of
Victim’s I-918 petition. See infra ¶¶ 32–40. Thus, as it relates to
Victim’s statements of his compassion and lack of a criminal
mind, the assault charge, and its bearing on rule 608, was not
‚sufficiently raised to a level of consciousness before the trial
court,‛ and we will not consider it. See State v. Richins, 2004 UT
App 36, ¶ 8, 86 P.3d 759 (citation and internal quotation marks
omitted).7
III. Victim’s I-918 Petitions
¶32 Defendant next challenges his inability to cross-examine
Victim about Victim’s refusal to disclose a copy of his I-918
petitions. We conclude that the requested cross-examination was
irrelevant. In any event, Defendant was not harmed by the trial
court’s refusal to allow the questioning. I-918 petitions help
‚provide temporary immigration benefits to aliens who are
victims of qualifying criminal activity, and to their qualifying
family members, as appropriate.‛ I-918, Petition for U
Nonimmigrant Status, U.S. Citizenship and Immigration
Services, https://www.uscis.gov/i-918 [https://perma.cc/LJ99-
VBTA]. As Defendant explains, ‚one of defense counsel’s trial
strategies was to suggest that [Victim] had a motive for being
7. Defendant does not ask us to consider either his rule 405
challenge or his rule 608 challenge under the plain error
doctrine.
20141003-CA 15 2016 UT App 241State v. White
deceptive about the details of the May 11, 2012 incident,‛
namely, ‚to gain legal status in the United States.‛ To help
develop this trial strategy, Defendant sought to cross-examine
Victim concerning whether he ‚had been given the opportunity
to release his I-918 documents to the defense and had declined to
do so.‛ The trial court refused to allow this questioning,
determining that it was ‚not relevant for any purpose,‛ because
it was Victim’s right not to provide those documents to the
defense. The trial court instead allowed Defendant to have an
expert witness provide ‚general information as to how this
process works‛ and to elicit from Victim ‚the simple fact‛ that
he and members of his family had filed I-918 petitions.
¶33 On appeal, Defendant asserts that the trial court’s ruling
exceeded its discretion, as Victim’s ‚decision not to disclose the
contents of his I-918 documents was unquestionably relevant‛
and the ‚jury could reasonably have inferred from *Victim’s+
decision not to disclose the I-918 documents that they contained
allegations inconsistent with what [Victim] told investigators,
and which might be inconsistent with his preliminary hearing
and trial testimony.‛ We disagree with Defendant and conclude
that the trial court did not abuse its discretion in ruling that the
requested cross-examination was irrelevant.
¶34 ‚Evidence is relevant if: (a) it has any tendency to make a
fact more or less probable than it would be without the evidence;
and (b) the fact is of consequence in determining the action.‛
Utah R. Evid. 401. Defendant argues that Victim’s failure to
disclose the I-918 petitions to the defense makes it more probable
that Victim fabricated his account of the events in question.
¶35 First, Defendant has not shown—or even attempted to
show—that he was entitled to receive those documents. And as
the State points out, ‚there are a number of legitimate reasons
why [Victim] would not want to give his immigration forms
directly to the defense.‛ Consider, for example, the fact that
Victim found Defendant—a stranger—in the bathroom of his
home, without pants on. This discovery was made shortly before
Defendant declared that he was there for Victim’s daughter. And
20141003-CA 16 2016 UT App 241State v. White
this declaration was made shortly before Defendant engaged in a
physical altercation with Victim. Under these circumstances,
Victim’s decision to withhold the sort of personal information
contained in the I-918 petitions, including information about his
daughter, from the defense seems wholly reasonable.
¶36 In any event, the inference that Defendant argues the jury
would have made constitutes speculation, especially considering
the trial court’s in camera review of the documents. See supra ¶ 8.
Defendant has not challenged the trial court’s in camera finding
that the petitions contained no exculpatory information, nor
does Defendant argue that the trial court erred in failing to order
production or disclosure of the application documents.
¶37 It follows that cross-examination about Victim’s refusal to
provide copies of the petitions directly to the defense had no
tendency to make it more probable that Victim had fabricated
his story. Thus, the trial court did not abuse its discretion when
it concluded that the requested line of questioning was ‚not
relevant for any purpose.‛
¶38 But even if we agreed with Defendant that the trial court
should have allowed the cross-examination, we see no
reasonable likelihood that the cross-examination would have
changed the outcome of the trial.
¶39 Defendant’s assumption about what the jury would have
inferred is not based in fact. There is no evidence on the record
that the petition contained falsehoods. The trial court even
performed its own in camera review of these documents and did
not ‚find anything potentially exculpatory in the information
provided.‛ Most importantly here, Defendant actually presented
the evidence necessary to develop his stated trial strategy: his
expert witness testified regarding the process and purpose of
obtaining a U visa and Defendant asked Victim whether he had
filed I-918 petitions. Then, in his closing argument, defense
counsel argued that Victim had ‚a reason to make this look as
bad as it can be‛ to take advantage of the U visa process.
20141003-CA 17 2016 UT App 241State v. White
¶40 Because Defendant cannot show that there was anything
suspicious in Victim’s I-918 petitions, he cannot show that
further questioning Victim on the subject would have led to any
evidence different from the evidence that was actually
presented. Defendant was not harmed by an inability to present
what would have, at best, constituted cumulative evidence. In
other words, even if the trial court erred by concluding that
Defendant’s potential questions were irrelevant, that error was
harmless.
IV. Victim’s Statements That He Felt Accused
¶41 Defendant next argues that the trial court should have
granted his motion for a mistrial. During the course of his
testimony, Victim indicated, without being asked, that he felt
more accused than Defendant. See supra ¶ 7 & note 1. Defense
counsel objected. The trial court instructed that the comment
‚will be stricken from the record and the jury is to disregard the
last comment,‛ and it admonished Victim, ‚I’m going to ask you
not to have any further comments that are not in response to a
direct question.‛ Then, mistakenly believing that he was being
asked what he had said before—the comment he made that had
been stricken—Victim explained, ‚I said that I felt more accused
than the defendant.‛ The prosecutor, defense attorney, and the
trial court all interjected and agreed that there ‚was a
misunderstanding with regard to *the+ question.‛ Defense
counsel then clarified, ‚I’m not talking about the comment you
may have made. What I’m talking about is . . .‛ and continued
his questioning.
¶42 After Victim was excused from the witness stand, and
after the jurors were sent home for the day, Defendant moved
for a mistrial ‚based on that comment.‛ The court denied the
motion but said, ‚To the extent you think a curative instruction
is needed in writing to go to the final set, I’d be happy to look at
that and we can discuss that further.‛ Defendant never asked for
such a curative instruction, and no further reference was made
to Victim’s comments.
20141003-CA 18 2016 UT App 241State v. White
¶43 Our supreme court has explained ‚that a mistrial is not
required where an improper statement is not intentionally
elicited, is made in passing, and is relatively innocuous in light
of all the testimony presented.‛ State v. Allen, 2005 UT 11, ¶ 40,
108 P.3d 730. Defendant acknowledges that the statements were
not intentionally elicited. And we consider the two statements—
one not captured on the record and one clarifying what was not
captured on the record, unfortunately causing it to be repeated
in the process—to have been made in passing. But perhaps most
importantly, even if we assume that there was some error in how
the trial court handled the statements, Defendant cannot show
that he was harmed by the error; he cannot show that Victim’s
statements were not ‚relatively innocuous in light of all the
testimony presented.‛ See id.¶44 As the State points out, ‚given the strength of the State’s
case, it is unlikely that *Victim’s+ comment influenced the
verdict.‛ Victim was one of nearly a dozen witnesses who
testified at trial over a period of three days. The two
statements—or references to them—appear on just two of more
than 800 transcript pages. There was no dispute that Victim and
his family did not personally know Defendant, nor did they ever
invite him into their home. Yet Defendant’s DNA was found on
the clothes iron the intruder used in his altercation with Victim.
Simply put, our confidence in the jury’s verdict has not been
undermined. See State v. Knight, 734 P.2d 913, 920 (Utah 1987).
Instead, the record reflects that the comments were not
intentionally elicited, were made in passing, and were relatively
innocuous in light of all the other testimony presented.8
8. Defendant argues that the statements were harmful because
they ‚sought to negate *Defendant’s+ claim of self-defense.‛
Specifically, he contends that ‚defense counsel’s effort to
demonstrate that the primary alleged victim may have actually
been the aggressor*+ was undermined by that individual’s
statements that he was feeling as if he were an accused.‛
(continued<)
20141003-CA 19 2016 UT App 241State v. White
V. Cumulative Error
¶45 Finally, we consider Defendant’s argument that his
convictions ‚must be reversed under the cumulative error
doctrine.‛ ‚Under the cumulative error doctrine, we will reverse
only if the cumulative effect of the several errors undermines our
confidence . . . that a fair trial was had.‛ State v. Dunn, 850 P.2d
1201, 1229 (Utah 1993) (omission in original) (citation and
internal quotation marks omitted). Defendant claims that the
errors he alleges undermine confidence in his convictions
because they prevented him from effectively presenting his
affirmative defenses.
¶46 ‚In assessing a claim of cumulative error, we consider all
the identified errors, as well as any errors we assume may have
occurred.‛ Id. For purposes of our earlier analysis, we decided
certain issues, in part, by assuming that error had occurred. See
supra ¶¶ 38–40, 43–44. Thus, our cumulative error analysis
requires that we consider those assumed errors, along with their
harmful effect. See Dunn, 850 P.2d at 1229.
¶47 In so doing, we conclude that the cumulative effect of any
assumed errors has not diminished our confidence in
Defendant’s convictions. None of the evidence that Defendant
either sought to admit or exclude would have undermined
Victim’s testimony that Defendant was not invited into his
home. Similarly, it would have done nothing to prevent the
jury’s finding that he entered Victim’s home with the intent
necessary to be convicted of burglary.9 See Utah Code Ann.
(2016 UT App 241State v. White
§§ 76-6-202, 76-6-203 (LexisNexis 2012) (outlining the elements of
burglary and aggravated burglary). From there, the case against
Defendant solidifies. As defense counsel acknowledged in his
closing argument, ‚*I+f the man by the time he is discovered in
the bathroom, has escalated [to] burglary, then game over. . . .
*Y+ou don’t get to defend yourself when you . . . are committing
burglary.‛ See State v. Standiford, 769 P.2d 254, 265 (Utah 1988)
(analyzing without disapproving a self-defense jury instruction
that ‚stated that the defense was not available if defendant was
committing or fleeing from the commission of a burglary‛); see
also Pitts v. State, 989 So. 2d 27, 31 n.3 (Fla. Dist. Ct. App. 2008)
(‚*I+f a defendant enters a conveyance or dwelling to commit an
offense other than battery, but then commits a battery when
confronted . . . [t]he defendant would not be entitled to assert
self-defense on the battery because the battery occurred when
the defendant was involved in the commission of a burglary
. . . .‛); State v. Evans, 755 S.W.2d 673, 674 (Mo. Ct. App. 1988)
(rejecting a challenge on appeal where ‚Defendant would have
us believe a criminal caught in the commission of a burglary has
the right to resist apprehension by the victim and has the right to
use a weapon in this resistance‛). Compare Utah Code Ann. § 76-
2-402 (LexisNexis 2012) (‚A person is justified in threatening or
using force against another when and to the extent that the
person reasonably believes that force or a threat of force is
necessary to defend the person or a third person against another
person’s imminent use of unlawful force.‛ (emphasis added)),
with id. § 76-2-405 (‚A person is justified in using force against
another when and to the extent that he reasonably believes that
the force is necessary to prevent or terminate the other’s
unlawful entry into or attack upon his habitation . . . .‛).
¶48 None of the assumed errors, if corrected, would have led
the jury to believe that Defendant was not in Victim’s home.
Similarly, no correction of the assumed errors would have
convinced the jury that he was there lawfully. Thus, we cannot
conclude that the cumulative effect of these assumed errors
undermines our confidence in Defendant’s convictions.
20141003-CA 21 2016 UT App 241State v. White
CONCLUSION
¶49 The arguments Defendant makes on appeal are either
unpreserved or unpersuasive, or the errors assumed did not
result in harm to Defendant. We therefore affirm his convictions.
20141003-CA 22 2016 UT App 241