State v. Argueta

This opinion is subject to revision before final
publication in the Pacific Reporter

2020 UT 41

IN THE

SUPREME COURT OF THE STATE OF UTAH

THE STATE OF UTAH,
Respondent,
v.
CARLOS WALTER ARGUETA,
Petitioner.

No. 20180814
Heard November 13, 2019
Filed July 2, 2020

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake
The Honorable Mark S. Kouris
No. 151906605

Attorneys:
Sean D. Reyes, Att’y Gen., Christopher D. Ballard,
Asst. Solic. Gen., Sandi Johnson, Salt Lake City, for respondent
Teresa L. Welch, Nathalie S. Skibine, Salt Lake City, for petitioner

JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT and JUSTICE PEARCE joined.
ASSOCIATE CHIEF JUSTICE LEE filed an opinion concurring in part
and concurring in the judgement,
in which JUSTICE PETERSEN joined.

JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 Carlos Walter Argueta was caught in the middle of the
night in A.C.’s apartment. At the scene, she complained to a police
officer that Argueta had inappropriately touched her. That night,
also at the scene, and after invoking his Miranda rights, Argueta
refuted the allegation and offered a short, innocent explanation of
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Opinion of the Court
what had occurred. He was later charged with burglary and
forcible sexual abuse. At trial, he elaborated upon his prior
explanation, while A.C. and other witnesses offered testimony to
the contrary. During the trial, the State introduced two prior bad
acts that Argueta committed in an attempt to rebut his innocent
explanation. At the end of a two-day trial, a jury convicted Argueta
on both counts.
¶2 Argueta argues that the prosecutor’s comments at trial
about the differences between his initial statement at the scene and
his trial testimony were a violation of his constitutional right to
remain silent. He also argues against the admission of the two prior
acts, claiming their admission prejudiced him.
¶3 We hold that any error found or assumed in this case was
not prejudicial and, as a result, not reversible. In addition, we only
address the issues that are preserved for appeal, and Argueta failed
to preserve his argument that A.C.’s eyewitness testimony
regarding an earlier encounter between them was so unreliable as
to be inadmissible. We therefore affirm the judgment of the court
of appeals and the conviction underlying it.
BACKGROUND
¶4 On the night of June 6, 2015, A.C., her boyfriend (J.W.) and
several of their neighbors were drinking and socializing in their
next-door neighbors’ backyard.1 At some point between midnight
and 2:00 a.m., A.C. decided to go to bed. She left the backyard by
herself and went into her apartment. J.W. stayed outside a while
longer.
¶5 A.C. and J.W. lived in a studio apartment in a house that
had been converted into four separate units. Upon returning to her
apartment, A.C. closed the apartment door. Because the apartment
door locked automatically, she left her key in the door’s lock, so
J.W.—who did not have a key—could enter the apartment without
waking her. She then undressed and got into her bed and under the
covers. With the television on, she drifted into sleep. While she was
“on the verge of getting to sleep,” in “that place between deep sleep
and still aware,” A.C. felt someone “stroking” her vagina and
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1 “When reviewing a jury verdict, we examine the evidence and

all reasonable inferences in a light most favorable to the verdict,
reciting the facts accordingly. We present conflicting evidence only
when necessary to understand issues raised on appeal.” State v.
Griffin, 2016 UT 33, ¶ 2 n.2, 384 P.3d 186 (citation omitted) (internal
quotation marks omitted).
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Opinion of the Court
“rubbing” her buttocks. A.C. was facing a wall and her eyes were
closed, so she could not see who touched her. She figured that it
was J.W. It was not.
¶6 Some short but unknown time after A.C. went inside, J.W.
decided to retire to bed too. He came back to the apartment and
saw the door slightly ajar, with the key still in the lock. Once he
looked inside, he saw A.C. asleep, but not covered, which was
unusual for her. While he was still standing at the doorway, a man
came running towards him from inside the apartment. Startled,
J.W. stopped the man, and managed to hold him up against a
dresser while he repeatedly shouted, looking for an explanation for
the man’s presence in the apartment.
¶7 The shouting awoke A.C. She saw that J.W. was holding a
man, who turned out to be Argueta. At that time, she could not see
his face clearly. She told J.W. that the man had touched her. J.W.
told her to call the neighbors and wrestled the man into the house’s
hallway. A.C. followed them, finally saw Argueta, and punched
him before running out to find the neighbors and call the police.
Argueta kept apologizing and tried to escape. After he managed to
get out of J.W.’s grip, two other neighbors arrived and helped J.W.
pin him down on the house’s front lawn until the police arrived
and arrested him.
¶8 After a police officer read Argueta his Miranda rights and
he invoked them, Argueta overheard A.C. telling the officer that
Argueta had touched her. Argueta retorted that A.C. was “a liar,
that he [had] met her at a bar, . . . that the keys [had been] left in the
door, and that he had left the keys in the house.”2 The State charged
Argueta with burglary and forcible sexual abuse.
¶9 At trial, Argueta presented a more elaborate version of the
events of that night. He testified that he had met A.C. and J.H., her
boyfriend at the time, at a bar close to A.C.’s apartment a year to a
year-and-a-half before the incident.3 They had talked and drunk
until late. Before the bar closed, Argueta had offered J.H. a shot,
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2 There is some discrepancy in the record about whether

Argueta made his statements before or after the police officer read
him his Miranda rights. But the State and Argueta stipulated on
appeal that Argueta made the statement after invoking Miranda.
State v. Argueta, 2018 UT App 142, ¶ 8 n.2, 429 P.3d 764. We follow
that stipulation here.
3 In all relevant times to this case, A.C. lived in the same
apartment.
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Opinion of the Court
which he had accepted and drunk. The couple had then asked
Argueta to give them a ride home. He had agreed, and when they
had gotten to their apartment, A.C. and J.H. had invited him in. J.H.
had asked Argueta if he could borrow twenty dollars, and Argueta
had given him the money. J.H. had told him, “[w]henever you want
to come, I owe you $20.”
¶10 Argueta testified that he had gone by the apartment “[f]ive
or six times” to get the money back, usually in the early morning
hours. But before the night of the charged act, he had “never
attempted to enter the home because there were people in front, but
[A.C. and J.H.] were not there.”4 On the night of the charged act,
Argueta decided to enter the house, where he saw the apartment
door open and the keys in the lock. He decided to enter the house
and put the keys in the apartment as “a good deed.” According to
his testimony, as he put the keys onto the dresser and turned to
leave, J.W. came into the apartment.
¶11 Before trial, the State sought to admit evidence of several
prior bad acts allegedly committed by Argueta, under rule 404(b)
of the Utah Rules of Evidence. After a hearing, the trial court found
two of the prior bad acts admissible, but only to rebut any
testimony by Argueta “as to his intent with regard to his entry, if
any, into the [apartment].” The two prior bad acts were a 2010
incident in which Argueta was found trespassing near another
woman’s house and entered a plea in abeyance5 (the trespassing
incident) and a 2014 incident in which A.C. claimed she saw
Argueta peeping into her apartment and confronted him (the
peeping incident).
¶12 The jury convicted Argueta as charged and the court later
sentenced him to two concurrent terms of one to fifteen years in
prison. Argueta appealed, and the court of appeals affirmed his
conviction. State v. Argueta, 2018 UT App 142, ¶ 56, 429 P.3d 764.
Pertinent here, the court of appeals held that the prosecutor did not

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4 There is no testimony that Argueta knew that A.C. and J.H.

separated, or that he knew that A.C. lived with J.W. at the time of
the charged act.
5 A plea in abeyance “means an order by a court, upon motion
of the prosecution and the defendant, accepting a plea of guilty or
of no contest from the defendant but not, at that time, entering
judgment of conviction against him nor imposing sentence upon
him on condition that he comply with specific conditions as set
forth in a plea in abeyance agreement.” UTAH CODE § 77-2a-1(1).
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Opinion of the Court
violate Argueta’s right to remain silent when, during
cross-examination and closing arguments, she commented on the
omissions in his initial statement at the scene. Id. ¶¶ 27, 29.
Additionally, the court of appeals held that the trial court erred in
admitting the trespassing incident under the doctrine of chances,
but that it was harmless error. Id. ¶¶ 40, 42. Finally, the court of
appeals held that Argueta had failed to preserve his argument that
the peeping incident should have been excluded from evidence
since A.C.’s eyewitness testimony was unreliable.6 Id. ¶ 46.
¶13 Argueta filed a certiorari petition on these three issues,
which we granted. We exercise jurisdiction under Utah Code
section 78A-3-102(3)(a).
STANDARD OF REVIEW
¶14 On certiorari, “we review the decision of the court of
appeals and not that of the [trial] court.” State v. Hansen, 2002 UT
125, ¶ 25, 63 P.3d 650 (citation omitted) (internal quotation marks
omitted). And “we review the decision of the court of appeals for
correctness.” Id. (citation omitted) (internal quotation marks
omitted). But “[t]he correctness of the court of appeals’ decision
turns, in part, on whether it accurately reviewed the trial court’s
decision under the appropriate standard of review.” State v.
Apodaca, 2019 UT 54, ¶ 25, 448 P.3d 1255 (citation omitted) (internal
quotation marks omitted).
¶15 In this case, one issue—the alleged constitutional
violation—should be reviewed for correctness. State v. Hernandez,
2011 UT 70, ¶ 3, 268 P.3d 822. The two other issues involve the trial
court’s decision to admit evidence, which we “will not overturn . . .
absent an abuse of discretion.” State v. Cuttler, 2015 UT 95, ¶ 12, 367
P.3d 981. “But whether the [trial] court applied the proper legal
standard” in assessing the admissibility of that evidence is a
question of law that we review for correctness.” Id. (citation
omitted) (internal quotation marks omitted).
ANALYSIS
¶16 We granted certiorari on three questions. They are whether
the court of appeals erred in concluding (1) that the
cross-examination about omissions in Argueta’s statement at the
scene did not violate his right to remain silent, (2) that Argueta was
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6 Argueta made additional arguments on appeal, which were

also rejected. Argueta, 2018 UT App 142, ¶¶ 47–55. He did not raise
those arguments in his petition for writ of certiorari, and we
therefore do not address them.
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Opinion of the Court
not prejudiced by the erroneous admission of the trespassing
incident, and (3) that Argueta failed to preserve his challenge to the
admission of the peeping incident.
¶17 Like the court of appeals, we find that Argueta failed to
preserve his argument against the admission of the peeping
incident. And we cannot determine whether the trial court erred in
admitting the trespassing incident under the doctrine of chances
due to lack of information as we explain below. But even if we
assume error, it was harmless.
¶18 Finally, we do not determine if the prosecutor’s comments
about Argueta’s omissions in his statement at the scene constitute
a constitutional violation. That is because, even assuming that such
a violation occurred, we find that it was harmless beyond a
reasonable doubt and did not prejudice Argueta. Even without
mentioning these omissions, the version that Argueta presented at
trial cannot credibly stand when confronted with the versions
offered by A.C. and the other prosecution witnesses, the
circumstantial evidence, and the peeping incident.
¶19 We, therefore, affirm the court of appeals’ judgment.
I. PRIOR BAD ACTS EVIDENCE
¶20 In a pretrial ruling, the trial court held that the prior bad
acts evidence—the peeping incident and the trespassing incident—
would be admissible, but only “if . . . the defendant puts his intent
of going inside of the apartment in play.” Because Argueta’s trial
testimony did raise an issue about his intent in entering the
apartment, both incidents were admitted into evidence.7
¶21 Argueta claims that admitting the evidence of the peeping
and trespassing incidents was both erroneous and prejudicial. The
court of appeals held that Argueta did not preserve his challenge
to the peeping incident and that, although the trial court erred in
admitting the trespassing incident, it was harmless error. State v.
Argueta, 2018 UT App 142, ¶¶ 41, 46, 429 P.3d 764. We agree with
the court of appeals’ outcome and some of its analysis, as we
explain below. We first address the challenge to the admissibility
of the peeping incident and hold that it was not preserved. We then
address the trespassing incident.

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7 Because Argueta’s defense was that his intent of entering the

apartment was innocent, Argueta’s trial attorney asked him about
the trespassing incident on direct examination, even before the
State brought it up.

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A. The Peeping Incident
¶22 The peeping incident occurred in 2014. A.C. was laying in
her backyard late one night when she saw a man peeping into the
windows of her and her neighbor’s apartments. She hid as she
continued to watch the man. As the man moved away to the house
next-door, A.C. ran into her apartment and alerted J.H. Together,
the two confronted the man. The man was Argueta.8 When the
police arrived at the scene of the charged act at issue here, A.C. did
not mention the peeping incident from 2014. But in her testimony,
she said that once she saw Argueta in the lit hallway, she
recognized him.
¶23 In his motion to suppress the evidence, Argueta argued
that the peeping evidence “would greatly confuse the issues before
the jury,” and would require expert eyewitness testimony because
of the “many problems inherent in eyewitness identification
testimony.” He submitted that the evidence is inadmissible under
Rule 403 of the Utah Rules of Evidence because “the introduction
and confrontation of the State’s proposed 404(b) evidence would
confuse the issues before the jury and cost a great deal of time and
other resources, and [because] it is only tangentially related to the
central issues of the State’s allegations.”
¶24 Argueta now claims that evidence of the peeping incident
was inadmissible under rule 403 because A.C.’s eyewitness
testimony was unreliable. But “[a]s a general rule, claims not raised
before the trial court may not be raised on appeal.” State v. Holgate,
2000 UT 74, ¶ 11, 10 P.3d 346. To preserve an issue for appeal, the
“issue must be presented to the trial court” in a way that gives the
trial court “an opportunity to rule on that issue.” Brookside Mobile
Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968. When
evaluating if the trial court had such an opportunity, a court
considers whether the party raised the issue timely and specifically
and whether it introduced supporting evidence or relevant
authority. Winward v. State, 2012 UT 85, ¶ 9, 293 P.3d 259.
Importantly here, “if a party makes an objection at trial based on
one ground, this objection does not preserve for appeal any

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8 Because we conclude that the challenge to the peeping incident

admission was unpreserved, we do not outline the incident any
further here. However, in our analysis below, we expand and detail
the incident, as it relates to whether another assumed error in
Argueta’s trial was harmless beyond a reasonable doubt. See infra
¶¶ 61–65.
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Opinion of the Court
alternative grounds for objection.” State v. Low, 2008 UT 58, ¶ 17,
192 P.3d 867.
¶25 Argueta argued to the trial court that A.C.’s identification
was inadmissible because “every factor weighs against a good
[eyewitness] identification.” But he never specifically argued that
it should be inadmissible under rule 403 because it was unreliable.
Instead, he argued that rule 403 blocked the eyewitness
identification because of the burden that it would impose on the
trial: it would “shift the jury’s focus,” and the court would “end up
spending more time trying the [peeping incident].”
¶26 Argueta now asks us to read different parts of his
argument at trial together, to form a timely, specific, and
authority-supported argument for constitutional inadmissibility of
the identification due to unreliability. We cannot bend our
preservation requirements that far. Argueta’s inadmissibility
argument below did not hinge on the eyewitness testimony’s
unreliability but rather on its potential effect on the focus of the
trial. The trial court did not understand Argueta’s argument as an
admissibility challenge based on eyewitness unreliability, but only
as a challenge to the weight attributed to the testimony. At the end
of the hearing, the trial court said that “there’s an eyewitness issue
there and we’re going to allow an expert that the defense will bring
in if they choose to.” Argueta did not ask for a ruling on the
admissibility argument he now claims he made, and his counsel
even drafted the trial court’s order, which also did not make any
mention of this argument. The trial court thus had no “opportunity
to rule” on whether evidence of the peeping incident was
inadmissible under rule 403 because the eyewitness testimony was
unreliable.
¶27 Argueta also asserts that the trial court ruled on the
eyewitness identification issue, and therefore any objection that the
issue has not been preserved for appeal is “conclusively
over[come].” Fort Pierce Indus. Park Phases II, III & IV Owners Ass’n
v. Shakespeare, 2016 UT 28, ¶ 13, 379 P.3d 1218 (citation omitted).
That ruling, according to Argueta, happened when the trial court
remarked during a hearing that the “strength” of the identification
evidence was “very thin.” But Argueta attaches too much weight
to this off-hand remark—a remark made while the trial court was
posing “hypotheticals” in an attempt to understand the parties’
arguments. Indeed, moments later the trial court judge said that he
“obviously [didn’t] know the facts.” In any event, the trial court did
not rule on the issue. And so this argument, too, fails.

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Opinion of the Court
¶28 For these reasons, we conclude that the court of appeals
correctly held that Argueta failed to preserve his argument that
evidence of the peeping incident was inadmissible under rule 403
because of eyewitness testimony unreliability. And thus we do not
address whether the alleged unreliability of the eyewitness
testimony makes the peeping incident inadmissible under rule 403.
B. The Trespassing Incident
¶29 The trespassing incident happened in 2010. The police
found Argueta outside a home near A.C.’s apartment. The police
had been called to that location because a woman had complained
that someone was in her home. The police found the doors and
windows locked and assured the woman that no one had entered
her home. But the police found Argueta outside the home; he
claimed he went near the house to urinate. He was later charged
with trespassing and pled guilty in abeyance.
¶30 Argueta argues that the trial court erred in admitting
evidence of the trespassing incident under the doctrine of chances
and that the admission prejudiced him. The court of appeals agreed
with Argueta that the admission was erroneous but held that it was
not prejudicial. Argueta, 2018 UT App 142, ¶ 41. We agree with the
court of appeals’ outcome because we find that the admission of
the trespassing incident was not prejudicial to Argueta. However,
we cannot determine whether the trial court erred in admitting the
trespassing incident under the doctrine of chances due to lack of
information, as we explain below. We take this opportunity to
further clarify the application of the doctrine of chances and the
burden that the party seeking to admit evidence under the doctrine
must meet.
¶31 Rule 404(b) of the Utah Rules of Evidence prohibits the
admission into evidence of a “crime, wrong, or other act” to “prove
a person’s character in order to show that on a particular occasion
the person acted in conformity with the character.” UTAH R. EVID.
404(b). It does, however, allow the admission of crimes, wrongs,
and other acts for other non-propensity purposes, such as “proving
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Id.
¶32 To determine, under rule 404(b), whether prior bad acts are
admissible to rebut, for example, defenses based on mistake or lack
of intent, courts apply the doctrine of chances. State v. Lowther, 2017
UT 34, ¶ 23, 398 P.3d 1032. The doctrine of chances is an analytical
framework that “rests on the objective improbability of the same
rare misfortune befalling one individual over and over.” State v.

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Verde, 2012 UT 60, ¶ 47, 296 P.3d 673, abrogated on other grounds by
State v. Thornton, 2017 UT 9, ¶ 53, 391 P.3d 1016 (citation omitted).
A proper use of the doctrine assists to discern whether the inference
from the prior bad act is permissible or not. See id. ¶ 51.
¶33 In Verde, we laid out some criteria for the application of the
doctrine of chances. There we also acknowledged the difficult and
sensitive nature of the doctrine’s inquiry. Id.; id. ¶¶ 55, 57–61.
Recent case law and law review publications have highlighted the
difficulty of the doctrine’s application in different circumstances.
See, e.g., State v. Lane, 2019 UT App 86, ¶¶ 36–50, 444 P.3d 553
(Harris, J., concurring); State v. Murphy, 2019 UT App 64, ¶¶ 45–65,
441 P.3d 787 (Harris, J., concurring); Edward J. Imwinkelried,
Criminal Minds: The Need to Refine the Application of the Doctrine of
Objective Chances as a Justification for Introducing Uncharged
Misconduct Evidence to Prove Intent, 45 HOFSTRA L. REV. 851 (2017).
The concerns raised in the court of appeals’ case law and law
review publications merit careful consideration. We therefore
recently charged our advisory committee on the Utah Rules of
Evidence to propose recommendations to address this issue. We
will also continue clarifying the doctrine’s application in our case
law, as relevant issues come up, as we do here.
¶34 One such needed clarification concerns the articulation of
the “rare misfortune” that triggers the doctrine’s application.
“[C]are and precision are necessary to distinguish permissible and
impermissible uses of evidence of prior bad acts, and to limit the
factfinder’s use of the evidence to the uses allowed by rule.” Verde,
2012 UT 60, ¶ 55. The care and precision begin with the party
seeking to admit a prior bad act under the doctrine of chances. This
party must articulate the “rare misfortune” that triggers the
doctrine’s application. Without a clear articulation of what event is
being evaluated it is difficult to make sure that a prior bad act is
admissible under the doctrine for a permissible inference.
¶35 “[F]or evidence to be admitted under the doctrine of
chances, it must meet four foundational requirements: materiality,
similarity, independence, and frequency.” State v. Lopez, 2018 UT 5,
¶ 54, 417 P.3d 116. When a trial court is confronted with evidence
that the State intends to admit under the doctrine of chances, it
must assess these foundational requirements to decide its
admissibility.9 Id. It cannot simply rely on the similarity between
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9 Such assessment is only the first step to admission of evidence.

Even if evidence is admitted under the doctrine of chances, the
(continued . . .)
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the charged act and the prior bad acts. See Imwinkelried, 45
HOFSTRA L. REV. at 856–857, 872.
¶36 The court of appeals held that two of the foundational
requirements for the doctrine’s application—similarity and
frequency—were not met.10 Argueta, 2018 UT App 142, ¶¶ 38–39.
Because the State has not properly articulated what “rare
misfortune” is examined here, we cannot fully agree with the court
of appeals, as we explain below.
¶37 “Similarity and frequency are both important inputs for
determining [objective] improbability; the less similar the acts, the
more probable it is that they would occur in the general population.
And the less frequently they occur in the general population, the
more it is objective[ly] improbabl[e] that so many incidents would
occur randomly.” Lopez, 2018 UT 5, ¶ 59 n.12 (alterations in
original) (citation omitted) (internal quotation marks omitted).
Similarity and frequency, therefore, “interact with each other to
become a safeguard against the doctrine of chances becoming a
work-around for the admission of otherwise improper propensity
evidence.” Id. ¶ 57. To evaluate them both, it is important to
articulate the improbable “rare misfortune.”
¶38 To satisfy the foundational requirement of similarity, the
similarity of the past act need not be “as great as that necessary to
prove identity under a ‘pattern’ theory,” but it still needs to be
significant enough to “suggest a decreased likelihood of
coincidence.” Verde, 2012 UT 60, ¶ 58. It must be “sufficient to
dispel any realistic possibility of independent invention.” Id. ¶ 59
(quoting Mark Cammack, Using the Doctrine of Chances to Prove
Actus reus in Child Abuse and Acquaintance Rape: People v. Ewoldt
Reconsidered, 29 U.C. DAVIS L. REV. 355, 405–06 (1996)) (internal
quotation marks omitted); see also Lowther, 2017 UT 34, ¶ 36.

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court must “proceed to assess the evidence under rules 402 and
403.” State v. Lowther, 2017 UT 34, ¶ 32. Because the evidence here
does not survive the rule 404(b) inquiry, we need not go any
further.
10The court of appeals found that these two requirements were
not met and did not address the other factors: materiality and
independence. Argueta, 2018 UT App 142, ¶ 35. The court of
appeals did not need to address the two other requirements.
Because the State needs to meet all requirements, finding that it had
not met even one of the requirements means that the State failed to
meet its burden under the doctrine.
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¶39 Under the frequency requirement, the defendant “must
have been accused of the crime or suffered an unusual loss more
frequently than the typical person endures such losses accidentally.
It is this infrequency that justifies the probability analysis
underlying the doctrine of chances.” Verde, 2012 UT 60, ¶ 61
(emphasis omitted) (citation omitted) (internal quotation marks
omitted). The number of incidents carries weight in the analysis of
frequency. But the number of occurrences and their temporal
proximity are usually not enough to establish the frequency
requirement. The assessment of frequency cannot be based solely
on intuition. To evaluate the frequency of a “rare misfortune,” a
court must ascertain some benchmark for the “typical person[’s]”
endurance of the crime or unusual loss through testimony or
judicial notice. See Lane, 2019 UT App 86, ¶ 49 (Harris, J.,
concurring). Without such a benchmark, the frequency
requirement in Verde is only empty words.
¶40 With respect to the similarity prong, here, the State has not
clearly articulated what “rare misfortune” the trespassing incident
evinces. At the trial court hearing, the State argued that “part of
[the trespassing incident], kind of falls under th[e] doctrine of
chances,” because Argueta’s “MO” is to “go[] inside to commit the
assault.” We cannot discern what improbable event the State is
highlighting with this statement. It could be “being discovered on
a young woman’s property in the early hours of the morning,”
“being discovered inside a young woman’s house,” or perhaps
“having to urinate near or at a young woman’s house at the early
hours of the morning.” It could be all these misfortunes or a
different one altogether.
¶41 And because the State has not presented such a clear “rare
misfortune” to the trial court, the court of appeals, or us, we cannot
properly evaluate the foundational similarity requirement. It
would be futile to point to the dissimilarities between the
trespassing incident and the case at hand because some may not be
relevant to the similarity assessment, given the rare misfortune we
evaluate.
¶42 For a similar reason, it is unhelpful to analyze the
frequency question here either. The State made no effort to
establish a benchmark for a “typical person,” even if we could
identify what “rare misfortune” we were assessing. The State did,
however, question Argueta’s innocent urination explanation at
trial. The State asked Argueta questions about his repeated
urination in public. Even if we assume that this questioning is
related to the not-clearly-articulated “rare misfortune,” it would

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not help the State’s argument. That line of questioning only showed
that Argueta was repeatedly caught urinating in public on
occasions and locations unrelated to young women’s properties. It
therefore strengthens Argueta’s innocent explanation that he
urinated publicly whenever he had the need to do so, and does not
necessarily make it improbable that sometimes it would be by or
on a young woman’s property.
¶43 While we agree with the court of appeals’ intuition that
“[o]ne trespassing conviction does not increase the statistical
likelihood that on a different occasion Argueta entered [A.C.’s]
apartment with unlawful intent,” Argueta, 2018 UT App 142, ¶ 40,
we cannot affirm it due to the lack of information before us, as we
explain above.
¶44 But even if we assume error, “[f]or an error to require
reversal, the likelihood of a different outcome must be sufficiently
high to undermine confidence in the verdict.” State v. Knight, 734
P.2d 913, 920 (Utah 1987). “The burden of showing harmfulness
normally rests with the complaining party.” State v. Robertson, 932
P.2d 1219, 1227 (Utah 1997), overruled on other grounds by State v.
Weeks, 2002 UT 98, ¶ 25 n.11, 61 P.3d 1000.
¶45 Below, we find that the State has shown that another
alleged error in Argueta’s trial was harmless beyond a reasonable
doubt. See infra ¶¶ 57–73. Given that analysis and specifically, the
overwhelming evidence presented against Argueta, even without
the trespassing incident, we do not find the inclusion of the
trespassing incident probative to the case. We, therefore, agree with
the court of appeals that even assuming error, it was harmless and
not reversible.
II. THE PROSECUTION’S COMMENTS
ABOUT ARGUETA’S STATEMENTS WERE
HARMLESS BEYOND A REASONBLE DOUBT
¶46 Argueta’s chief complaint is about the prosecutor’s
comments during cross-examination and closing arguments
regarding the differences between Argueta’s initial explanation to
the police and his trial testimony.
¶47 At the scene of the charged act, and after Argueta invoked
his Miranda rights, Argueta spontaneously told a version of what
happened. As he later recounted it, he told the police officer that
A.C. was “lying[] because [he] knew her at the bar,” and that he
found the apartment keys in the door, and “left the keys in the
apartment.” At trial, Argueta elaborated on this version. He added
details about meeting A.C. at the bar and also testified that A.C. and
13
 STATE v. ARGUETA
Opinion of the Court
J.H. previously invited him into the apartment and that they owed
him money, which he had come to collect on the night of the
charged act. During Argueta’s cross-examination, the prosecutor
referred several times to the omissions in the initial statement at the
scene compared to the version Argueta presented in his testimony.
She also addressed these omissions in her closing arguments,
pointing out that Argueta had not told the officer in which bar he
had met A.C. or that J.H. owed Argueta twenty dollars.
¶48 Argueta argues that these comments violated his right to
remain silent under Doyle v. Ohio, 426 U.S. 610, 618 (1976) (“[I]t
would be fundamentally unfair and a deprivation of due process to
allow the arrested person’s silence to be used to impeach an
explanation subsequently offered at trial.”). In response, the State
argues that the prosecutor did not comment on Argueta’s silence,
but rather about the inconsistencies between his two versions of
events and that the United States Supreme Court has held that
these types of comments do not violate the right to remain silent.
Anderson v. Charles, 447 U.S. 404, 409 (1980) (“We conclude that
Doyle does not apply to the facts of this case. Each of two
inconsistent descriptions of events may be said to involve ‘silence’
insofar as it omits facts included in the other version. But Doyle does
not require any such formalistic understanding of ‘silence,’ and we
find no reason to adopt such a view in this case.”).
¶49 Other jurisdictions have taken varied positions on where
comments similar in nature “fall” within the spectrum between
Doyle and Charles, as both parties aptly argue. Because we find no
prejudice here, see infra ¶ 73, we decline to determinatively decide
this question, and leave it for a future appropriate case.11
¶50 The concurrence would prefer us to decide the question.
The concurrence recognizes that “the lack of prejudice is a sufficient
basis for disposition of this case.” Infra ¶ 76. But it argues that it is
an important question that we granted certiorari on and that it
already has “a clear answer in controlling precedent,” infra ¶ 76
n.23, found in State v. Velarde, 675 P.2d 1194 (Utah 1984), which the

__________________________________________________________
11 Our decision to not decide the matter should not be viewed

as an implicit endorsement of the court of appeals’ determination
that there is “no difference in impeaching a defendant’s prior
inconsistent statement and impeaching a prior statement that
omitted exculpatory details where a defendant has not been
induced to remain silent.” Argueta, 2018 UT App 142, ¶ 29 (citation
omitted) (internal quotation marks omitted).

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Opinion of the Court
concurrence claims we are “casting shade on” by not deciding the
constitutional question, infra ¶ 83.
¶51 Unlike the concurrence we do not think that Velarde
“clear[ly]” answers the question presented here. Infra ¶ 111.
Indeed, read properly, we do not think it answers it at all. Velarde
is about the theft of a truck. The defendant in Velarde was found
asleep in the stolen truck in Morgan, Utah. 675 P.2d at 1195. Upon
being roused by a police officer, “and without any prompting,” he
assumed the “search” position against the truck. Id. Unlike
Argueta, he never invoked his right to remain silent after being
given his Miranda warnings. See id. Instead he freely told the officer
that arrested him that he did not own the truck and that he had no
idea he was in Morgan. Id. Then, at trial, he testified altogether
differently that someone with a truck picked him up and they
drove together to Morgan, where that person lived. Id.
¶52 This court rejected Velarde’s argument that the
prosecutor’s cross-examination about his inconsistent versions was
a commentary on his “silence.” Id. at 1195. We explained that
“inconsistency” in testimony “is a legitimate basis for a
prosecutor’s testing the credibility of a witness by way of
impeachment,” id., because “Doyle does not apply to
cross-examination that merely inquires into prior inconsistent
statements,” id. at 1196 (quoting Charles, 447 U.S. at 408).
¶53 The concurrence asserts that Velarde’s two versions are
reconcilable, and even though the Velarde court characterized them
as “inconsistent,” it nevertheless resolved the question before us,
involving Argueta’s reconcilable versions. Infra ¶¶ 111, 111 n.26.
We do not think that the concurrence’s interpretation of Velarde is
plausible or ascertainable from that less-than-two-page opinion. If
we would have found this interpretation somewhat persuasive,
there would be no need for a concurrence.
¶54 Velarde, therefore, tells us little to nothing about cases like
Argueta’s, where a defendant’s versions are not inconsistent, but
merely supplemental and reconcilable.12 And our one case that has
relied on Velarde since its issuance mentioned in parentheses that
Velarde stands for the unremarkable proposition “that defendant’s
__________________________________________________________
12 Even though the key words in this debate, “supplemental,”

“different,” or “reconcilable” do not appear in Velarde in any form,
the concurrence characterizes the decision as displaying a
“straightforward conclusion” with a “square holding.” Infra ¶¶ 82,
111 n.26.

15
 STATE v. ARGUETA
Opinion of the Court
inconsistent testimony is legitimate basis for prosecutor’s
questioning his credibility.” Alta Pac. Assocs., Ltd. v. Utah State Tax
Comm’n, 931 P.2d 103, 110 (Utah 1997) (Russon, J., plurality
opinion).13
¶55 That is why, for us, answering the constitutional question
the parties spar about is a task that would require a venture into
murky waters. Under these circumstances, resolving the
constitutional question would go against our approach to judging.
“In light of the ‘great gravity and delicacy’ of constitutional
questions, . . . ‘[t]he Court will not pass upon a constitutional
question although properly presented by the record, if there is also
present some other ground upon which the case may be disposed
of.’” State v. Rowan, 2017 UT 88, ¶ 25, 416 P.3d 566 (Himonas, J.,
concurring) (second alternation in original) (quoting Ashwander v.
Tennessee Valley Auth., 297 U.S. 288, 345–46 (1936) (Brandeis, J.,
concurring)). We have gone so far in the past as to assert that it is
“our obligation to avoid addressing constitutional issues unless
required to do so.” Gardner v. State, 2010 UT 46, ¶ 93, 234 P.3d 1115
(citation omitted) (internal quotation marks omitted); see also State
v. Wood, 648 P.2d 71, 82 (Utah 1982) (“[W]e address neither the
federal nor the state constitutional issues because the case can be
decided on the preferred grounds of statutory construction. It is a
fundamental rule that we should avoid addressing a constitutional
issue unless required to do so.”).14 And although we granted
certiorari on the constitutional question, we did so, as we do in
other instances, bearing in mind that it is possible we will not reach
the issue. See, e.g., State v. Ray, 2020 UT 12, ¶ 45, --- P.3d ---
(acknowledging that we granted certiorari on whether the court of
appeals erred in its determination that Ray was prejudiced by any
__________________________________________________________
13 We also note that Alta Pacific was not a criminal case, and its

use of Velarde was as an example for the proposition that
“inconsistencies within one party’s appraisal could support the
approval of a competing and more consistent appraisal.” Alta Pac.
Assocs., 931 P.2d at 110 (Russon, J., plurality opinion).
14 It may be that these prior cases overstated the principle of
constitutional avoidance by speaking broadly in terms of
“obligation[s]” and “fundamental rule[s].” If so, it would be
prudent for us to revisit this language. But we should do so with
the able assistance of counsel and cautiously. For “[w]hen a practice
of restraint is durable—when it has survived several turns of the
wheel—a wise humility counsels against discarding it.” Rowen,
2017 UT 88, ¶ 27 (Himonas, J., concurring).

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Opinion of the Court
deficient performance, but ultimately deciding to “not address the
prejudice prong,” because we concluded the counsel performance
in question “was not deficient”).
¶56 We can proceed, therefore, under the assumption that the
prosecutor’s comments did rise to a Doyle violation. Because even
assuming such violation, we hold it did not prejudice Argueta, as
the State has shown that any such violation was harmless beyond
a reasonable doubt. See Brecht v. Abrahamson, 507 U.S. 619, 629–30
(1993) (requiring a conviction involving a federal constitutional
error to be set aside unless it is harmless beyond a reasonable
doubt).
¶57 To avoid reversal on account of a Doyle violation, “the
court must be able to declare a belief that it was harmless beyond a
reasonable doubt. The State bears the burden of proving that an
error passes muster under this standard.” Id. at 630 (citation
omitted) (internal quotation marks omitted).
¶58 In State v. Tillman, we held that a violation similar to the
one alleged here was harmless beyond a reasonable doubt “[i]n the
face of overwhelming evidence of defendant’s guilt, together with
the fact that the comments were isolated as opposed to extensive
and the fact that the trial judge specifically instructed the jury that
no presumption adverse to [the defendant] is to arise from” his
silence. 750 P.2d 546, 555 (Utah 1987) (citations omitted) (internal
quotation marks omitted). These principles guide us in our decision
today, but they are not factors in a rigid examination.15 The weight
of each consideration and the possible availability of other

__________________________________________________________
15 After our decision in State v. Tillman, 750 P.2d 546 (Utah 1987),

the court of appeals “codified” our statement into four factors. See,
e.g., State v. McCallie, 2016 UT App 4, ¶ 28, 369 P.3d 103; State v.
Byrd, 937 P.2d 532, 535 (Utah Ct. App. 1997); State v. Reyes, 861 P.2d
1055, 1057 (Utah Ct. App. 1993). The parties and the court of
appeals refer to them as the “Byrd factors” (even though they were
first codified in Reyes). See, e.g., McCallie, 2016 UT App 4, ¶ 38.
We read our decision in Tillman differently. It merely offered
specific reasons why there was no prejudice in that case based on
past precedents of this court and the United States Supreme Court.
It did not offer mandatory, rigid factors. While we endorse the
rationale behind the “factors” identified by the court of appeals, as
we did in Tillman, we discourage courts from over-relying on them.
They should instead conduct a more holistic, case-by-case
prejudice inquiry.
17
 STATE v. ARGUETA
Opinion of the Court
considerations change from case to case. Courts thus should not
view Tillman’s considerations as set in stone.
¶59 Here, we find that the overwhelming evidence of
Argueta’s guilt as manifested in the trial testimony is more than
sufficient to find that any alleged Doyle violation was harmless
beyond a reasonable doubt.
¶60 Argueta’s testimony at trial had two prongs: first, his
reason for being at the apartment at all—coming to collect on J.H.’s
twenty-dollar debt; and second, his reason for entering the
apartment—to do a “good deed” by placing the keys inside.
Neither prong is credible in light of the rest of the evidence, as well
as in light of Argueta’s testimony.
¶61 First, Argueta testified that in 2014, a year and a half before
the charged act, he had met A.C. and J.H. at a bar. He had
conversed and drunk with them—on their initiative. When the bar
had been about to close, he had offered J.H. a shot, before telling
them that he had to leave. A.C. and J.H. had asked him for a ride to
their apartment, and he had obliged. He then testified that the
couple had invited him inside for a drink, which he had agreed to.
At their apartment, J.H. had asked if he could borrow twenty
dollars from Argueta. Argueta had given J.H. the money. He had
then decided to leave the apartment, and J.H. had told him,
“[w]henever you want to come, I owe you $20.” Argueta
mentioned several times that the couple had argued with each
other throughout the night.
¶62 Argueta testified that had he attempted to collect his debt
“[f]ive or six times.” He had usually done so late at night after the
bars had closed. He would drive by the house, but because “there
were people in front, but [A.C. and J.H.] were not there,” he had
never attempted to enter the house. Trying to corroborate this
story, Argueta pointed to the fact that J.H. had told a private
detective Argueta hired that he had previously met Argueta “in
passing.”
¶63 In contrast, J.H. testified that in April 2014, he had been on
the front porch of A.C.’s apartment and that Argueta had walked
by with a bottle of Tequila and offered him a shot. He had accepted.
The two had drunk together and “made small talk for maybe a
minute or so.” J.H. had gone back inside, and thirty minutes later
he had heard A.C. yelling that there was someone outside peeking
through their apartment window and asking J.H. to “stop this
guy.” He had gone outside and found Argueta at the side of the
house. When he and A.C. had confronted Argueta, he had acted

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Opinion of the Court
friendly and assured them that “he was just looking for a place to
piss.” J.H. also explained that he had said he had met Argueta “in
passing” only because he had met him during the peeping incident.
He testified further that he had never asked anyone for a ride from
the bar in question because he lived “close enough” to “walk every
time.”
¶64 A.C.’s version of the events was consistent with J.H.’s. She
testified that she and J.H. had argued the night of the peeping
incident as they came back from a bar, and that they both had gone
outside of the small apartment to cool down. She had been in the
backyard, lying on the ground when she had noticed a stocky man,
dressed in black, peeping into her window. She had hidden behind
a truck as she watched him continue to peep into her and her
neighbor’s apartments. When the man had moved to the house next
door, she had run into the house and alerted J.H. After that, J.H.
had gone to the side of the house and found Argueta. He had come
back with his “arm around [Argueta].” J.H. explained that
“[Argueta] [had] walked by the house earlier and offered [him] a
shot.” When A.C. and J.H. had confronted Argueta and asked what
he was doing, he had replied that he had had to pee and denied
looking through the window.
¶65 Argueta’s testimony and that of A.C. and J.H. had striking
similarities. Both the peeping incident and Argueta’s bar story took
place during approximately the same time. In both stories, A.C. and
J.H. came back late at night from a bar and were fighting, and
Argueta offered J.H. a shot, and they drank it together.16 The
combination of J.H.’s testimony contradicting Argueta’s version,
the consistency between J.H’s and A.C.’s testimonies, and the
suspicious amount of similarities between the two stories, given
that Argueta was familiar with J.H.’s version of the events,17
impedes the credibility of Argueta’s trial testimony background
prong.
¶66 In the second prong of his testimony, Argueta offered an
innocent explanation for his presence at A.C.’s apartment on the
__________________________________________________________
16 Relevant here is that Argueta heard part of A.C.’s peeping

incident testimony and its description by the prosecutor at the
preliminary hearing he attended, well before he testified about his
version of events.
17 At the very least, Argueta’s trial attorney learned of J.H.’s
version of events two days before trial, when J.H. told the entire
version to Argueta’s private investigator.

19
 STATE v. ARGUETA
Opinion of the Court
night of the charged act. This prong was also not credible
considering its absurdity, as well as the inconsistencies as to
specific details between Argueta’s version and that of other
witnesses—whether the door to the apartment was open, whether
the keys were inside the lock when J.W. came back to the
apartment, and whether A.C. was sleeping covered or uncovered.
¶67 Argueta’s explanation of what happened on the night of
the charged act, even taken at face value, was absurd and not
believable. As the court of appeals eloquently stated, Argueta
“testified that although he [had] met [A.C.] just once before, he
stopped by her apartment in the early morning hours to claim an
eighteen-month-old, twenty-dollar debt, and that when he saw the
keys in the door, he decided to do a ‘good deed’ by entering the
apartment to place them inside.” Argueta, 2018 UT App 142, ¶ 42.
Then, when J.W. came into the apartment, Argueta tried to run out
of the apartment instead of explaining that he was simply doing a
“good deed.”18
¶68 Beside the absurdity, Argueta’s story details did not add
up. He testified that when he approached the apartment’s door that
night, it was “already open” and that the keys were in the lock.
According to him, he wanted to do a “[g]ood deed” by putting the
keys in the apartment and leaving.
¶69 But this version contradicts other testimony. A.C. testified
that she had left the key in the door and closed the door all the way.
Seeing the open door when he got back to the apartment, J.W.
thought it was unusual.19 He testified that “[w]hen [A.C.] went in
she said that she would leave the keys in the door for me so that I
could get in because we have . . . one of the automatic locks. So she
left the keys in the door, and . . . I don’t know why she would leave
the keys in the door and leave it open so it wouldn’t lock.”
¶70 Argueta also testified that he took the keys out of the door
and put them on the dresser, and that as he was “turning back,
[J.W.] was in front of” him. But J.W. testified he remembered the
keys were still in the lock when he arrived at the apartment and

__________________________________________________________
18 Argueta testified that he tried to explain himself but J.W. did

not let him. But this attempt did not explain why he tried to run out
of the apartment as he saw J.W. instead of explaining his presence
right then.
19The door could have been open either before Argueta arrived
or because he opened it.

20
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Opinion of the Court
that “a figure . . . just kind of full rushing me . . . just from thin air,
[came] running . . . trying to get out the door.”
¶71 Additionally, Argueta’s testimony on whether A.C. was
covered or uncovered while asleep does not make sense given the
other testimony. Argueta testified that when he entered the
apartment he saw “a bulk” on A.C.’s bed, and it “was like the bed
was covered.” This was consistent with A.C.’s testimony that she
covered herself up when she went to bed. It was also consistent
with J.W.’s testimony that A.C. always slept covered with at least a
sheet. But when J.W. came into the apartment he immediately
noticed that A.C. was not covered and “the blankets were down”
and were “move[d] . . . kind of off of her.” Argueta did not address
this statement. Only one person other than A.C., who was at least
partially asleep, could have removed the blankets. That was
Argueta.20
¶72 Even taken at face value, without considering Argueta’s
initial statement at all, his trial testimony version did not hold up
against the overwhelming evidence against him. In addition, the
jury heard testimony about the peeping incident and could have
concluded from that testimony that, because Argueta had tried to

__________________________________________________________
20 Argueta’s testimony at trial had additional discrepancies. He

was shifting about what he was doing the night of the charged act
in general. On cross-examination, he testified that he had worked
for “the garbage collecting company in Orem” at that time. But then
he said that he had been a “mechanic… [a]nywhere” and would
find himself in the area because he was “running some other
errands.” But when the prosecutor asked him what errands he had
been running on the night of the charged act, he answered “[t]hat’s
not what [he] was doing exactly that day.” See also Argueta, 2018 UT
App 142, ¶ 42 n.9 (internal quotation marks omitted).
Argueta was also inconsistent in his explanation of why he
chose to enter the apartment that night and not on other occasions.
He testified that had he attempted to collect the alleged debt from
A.C. and J.H. unsuccessfully “five or six” times but never
“attempted to enter the home” because they were not among the
people out front. On the night of the charged act, he had finally
decided to go into the house to collect his debt. However, from his
description, this night was not any different from other nights he
had tried to collect the debt. He did not see A.C. or J.H. in front of
the house but he saw “some people . . . in the back of the house,”
and thought, “maybe they are in now.”

21
 STATE v. ARGUETA
Opinion of the Court
peep on A.C. before, there was a non-innocent intent for his actions
on the night of the charged act.
¶73 In sum, there was overwhelming evidence of Argueta’s
guilt given the other trial testimony. Therefore, even if we assume
that the prosecutor’s comments violated Doyle,21 that violation was
harmless beyond a reasonable doubt.22
CONCLUSION
¶74 Argueta failed to preserve his challenge to the
admissibility of the peeping incident. Additionally, all alleged
errors in his trial, even assuming they all occurred, were not
prejudicial to him under our relevant standards. Therefore, we
affirm the court of appeals judgment and Argueta’s convictions.

__________________________________________________________
21 The parties dispute whether the comments were a meaningful

part of the cross-examination and the closing arguments. Each
party refers to the extent of the comments compared to the length
of the cross-examination and closing arguments. They do so
because Byrd stated that whether “the reference was isolated” is a
relevant factor in the analysis of harmlessness beyond a reasonable
doubt. 937 P.2d at 535. That factor originated in our Tillman
opinion, which said that whether “the comments were isolated as
opposed to extensive” mattered for the analysis. 750 P.2d at 555.
This is a good example as to why the “Byrd factors” do not serve
their purpose. An arithmetic calculation of words and lines alone
gives us no dispositive finding on the effect that the prosecutor’s
words had on the jury. At times, even one word can echo with a
listener. Our main inquiry is the strength of the case against the
defendant. And here, the extent of the comments is irrelevant given
the overwhelming evidence of Argueta’s guilt and his unbelievable
version of events.
22In section I.B. we explain that because the State has shown
harmlessness beyond a reasonable doubt regarding the alleged
Doyle violation, we hold that Argueta could not show that the
admission of the trespassing evidence was harmful. The
overwhelming evidence against Argueta leaves no room to assume
that the trespassing incident was probative in the jury
determination.
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 Cite as: 2020 UT 41
Lee, A.C.J., concurring in part and concurring in the judgment
ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring
in the judgment:
¶75 I concur in the judgment of the court and in most of the
majority opinion. I applaud the court’s refinement and clarification
of the doctrine of chances. And I agree with its conclusion that no
prejudice resulted from either of the errors alleged by Argueta—
(a) the prosecutor’s questions and comments about differences
between Argueta’s statements at the scene of the crime and his
testimony at trial (allegedly in violation of Argueta’s Fifth
Amendment rights), and (b) the admission of Argueta’s prior
trespassing conviction (purportedly in contravention of our rules
of evidence under the doctrine of chances).
¶76 Normally I would agree that the lack of prejudice is a
sufficient basis for disposition of this case. But the fact-intensive
prejudice inquiry is not the reason we granted certiorari. We
granted certiorari to consider whether the court of appeals erred in
concluding that Argueta’s Fifth Amendment rights were not
violated when the prosecutor sought to impeach his credibility by
highlighting “exculpatory details” that Argueta mentioned at trial
but omitted in earlier statements to police. This is an important
question. And we should address it because it has a
straightforward answer in controlling precedent of the United
States Supreme Court and in a governing decision of this court.23
¶77 The court of appeals based its conclusion on the United
States Supreme Court’s decision in Anderson v. Charles, 447 U.S. 404
(1980), which endorsed cross-examination that highlights
inconsistencies between a defendant’s trial testimony and prior
voluntary statements to police. That case held that in such
circumstances, there is no Fifth Amendment violation under Doyle
v. Ohio, 426 U.S. 610 (1976) because the prosecution is not
commenting on a defendant’s silence (his failure to speak to police)
but rather his statements to police. Charles, 447 U.S. at 408–09.
¶78 Argueta has challenged that determination on certiorari.
He claims that his Fifth Amendment rights were infringed under
Doyle because the prosecutor’s cross-examination drew “negative
inferences” from his “silence,” not his “inconsistent statements.”

__________________________________________________________
23 I am not suggesting that we must address any issue on which

we grant certiorari. I am asserting that the question we agreed to
hear is important to resolve—because it finds a clear answer in
controlling precedent and declining to answer it will unsettle our
law unnecessarily. See infra ¶¶ 80–82, 84, 106.
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 STATE v. ARGUETA
Lee, A.C.J., concurring in part and concurring in the judgment
Argueta thus views Charles as governing only the limited
circumstance in which the defendant is cross-examined about
statements that are irreconcilable. In Argueta’s view, “Charles is
inapplicable to this case because Argueta’s [trial] testimony
provided only additional details, not inconsistent statements, when
comparing Argueta’s trial testimony to his post-arrest statements
to police.”
¶79 The State disagrees. It asserts that details given at trial but
omitted in earlier statements to police are a kind of “inconsistency,”
and that any cross-examination focusing on such statements is fair
game under Charles. It also contends that we already resolved this
question in State v. Velarde, where we explained that Doyle has “no
application to a case in which the defendant did not exercise his
right to remain silent,” and emphasized that there is no Fifth
Amendment bar on “cross-examination that merely inquires into
[voluntary] prior inconsistent statements.” 675 P.2d 1194, 1196
(Utah 1984) (citations omitted). The State contends that this is
precisely the situation here since Argueta did not exercise his right
to remain silent but instead spoke freely and voluntarily to the
police. Because the prosecutor did not use Argueta’s “silence . . . to
impeach an explanation subsequently offered at trial,” Doyle, 426
U.S. at 618 (emphasis added), but rather highlighted differences
between his prior voluntary statements and trial testimony
(embellishments added at trial), the State asks us to affirm the court
of appeals under the standards set forth in Doyle, Charles, and
Velarde.
¶80 I agree with the State’s reading of these cases. In the
paragraphs below, I show that these decisions hold that there is no
constitutional bar on a prosecutor’s comments highlighting
inconsistencies between a story told voluntarily in a pretrial
investigation and a story told voluntarily at trial. I then establish
that there is no constitutional or logically tenable distinction
between the inconsistency of (a) telling one story to police and a
directly contradictory one at trial and (b) telling a limited story to
police and embellishing it at trial. In neither circumstance has the
defendant exercised his “right to remain silent.” He has voluntarily
spoken at two different stages of the process—in a police
investigation and at trial. And in so doing he has voluntarily
subjected himself to cross-examination, without any infringement
of any right guaranteed by the Fifth Amendment or United States
Supreme Court precedent. The circumstance at issue here
(embellishment) is precisely the circumstance at issue in Velarde—
the defendant’s two voluntary stories were not directly

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Lee, A.C.J., concurring in part and concurring in the judgment
contradictory, but inconsistent only in the sense that one added
detail not previously provided. See infra ¶¶ 111, 111 n.26. In that
situation, the Velarde court held that an “inconsistency” in a
defendant’s stories “is a legitimate basis for a prosecutor’s testing
the credibility of a witness by way of impeachment.” 675 P.2d at
1195. And it affirmed a conviction against a constitutional claim
that such a move ran afoul of the defendant’s “right to remain
silent.” Id. (citation omitted).
¶81 I find this holding controlling for reasons explained in
greater detail below. The majority disagrees, asserting that Velarde
does not “‘clear[ly]’ answer[] the question presented here.” Supra
¶ 51. Yet it does so in an opinion that offers no salient basis for
rejecting my reading of Velarde or for effectively distinguishing it—
and that simultaneously purports to be avoiding the constitutional
question altogether. See supra ¶ 49 (stating that the court is
“declin[ing]” to decide the constitutional question); supra ¶¶ 55, 55
n.14 (asserting that a decision on “the constitutional question
would go against our approach to judging” under the doctrine of
“constitutional avoidance”).
¶82 The most the majority can say about Velarde is that it
involved an “inconsistency” in which the defendant gave one
version of his story prior to trial and a “different[]” version at trial.
See supra ¶¶ 51–52. But that just underscores the parallelism
between this case and Velarde. As in this case, the Velarde
defendant’s stories did not directly contradict each other—they
were “inconsistent” only in the sense that the defendant
embellished his story at trial. See infra ¶¶ 111, 111 n.26. It was in
that context that the Velarde opinion held that “in order to assert the
[Doyle] privilege[,] there must be an initial and sustained silence after
the Miranda warning is given.” Velarde, 675 P.2d at 1196 (emphasis
added). That holding should control our decision here. We should
not be waving it off on the ground that the opinion is somehow
“unremarkable” and has been cited only once in our case law. See
supra ¶ 54. That is not a basis for overriding a square holding of this
court under our doctrine of stare decisis. And even if the facts of
Velarde were “[un]ascertainable” because the opinion is less than
two pages long, see supra ¶ 53, (they aren’t, see infra ¶¶ 111, 111
n.26), this clear holding about the actions a defendant must take
before invoking Doyle would still control. The court is thus in no
position to claim that its decision to dismiss Velarde is an act of
constitutional avoidance. See supra ¶ 55.
¶83 Constitutional avoidance makes sense when we are
resolving a case on a statutory or other alternate ground while

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 STATE v. ARGUETA
Lee, A.C.J., concurring in part and concurring in the judgment
declining to break new constitutional ground. If that’s what the
majority were doing, I could understand it as an act of judicial
restraint. But that’s not what’s afoot. We have already broken the
constitutional ground at issue—in our decision in Velarde. And the
majority is openly casting shade on that decision. It is doing so,
moreover, without identifying any persuasive ground for
questioning the scope of this important decision.
¶84 This is not an act of restraint or judicial “humility.” See
supra ¶ 55 n.14 (quoting State v. Rowan, 2017 UT 88, ¶ 27, 416 P.3d
566 (Himonas, J., concurring)). It is an open challenge to the settled
state of our case law and our doctrine of stare decisis. In questioning
Velarde—and the reading of that clear decision outlined further
below—the court is not declining to decide an unresolved issue. It
is reopening a heretofore resolved question, introducing doubt and
ambiguity on a point that until today was clearly established.
Unless and until the court explains (1) how the “inconsistency” in
Velarde is any more contradictory than the “inconsistency” in this
case and (2) how Argueta can invoke Doyle after “br[eaking] the
silence guaranteed constitutionally,” Velarde, 675 P.2d at 1196, it is
in no position to claim to be engaged in an act of restraint or
humility.
¶85 There is no Fifth Amendment right to tell one story to the
police and a different one at trial—at least, not one that allows you
to insulate yourself from cross-examination. There is only a right
not to be compelled to be a witness against yourself. And that right
is in no way implicated in a case like this one where the defendant
spoke voluntarily to police and again at trial.
¶86 These conclusions follow clearly from three sets of
controlling authorities: (1) longstanding United States Supreme
Court precedent limiting the right against self-incrimination by
allowing defendants to be cross-examined regarding voluntary
statements made during direct examination, see Fitzpatrick v. United
States, 178 U.S. 304, 315 (1900), or police interrogation, see Miranda
v. Arizona, 384 U.S. 436, 469 (1966); (2) the Supreme Court’s
decisions in Doyle and Charles, which establish that there is no Fifth
Amendment bar on “cross-examination that merely inquires into
prior inconsistent statements” made voluntarily during a police
investigation, Charles, 447 U.S. at 408; and (3) our opinion in Velarde,
which holds that Charles extends to the kinds of inconsistencies at
issue here—details provided at trial but not given during the initial
police investigation, see 675 P.2d at 1195–96. I set forth the specific
grounds for these conclusions in the three sections that follow.

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I. Fitzpatrick and Miranda
¶87 The Fifth Amendment establishes a right against
compulsory self-incrimination. It says that “[n]o person shall be . . .
compelled in any criminal case to be a witness against himself.”
U.S. CONST. amend. V. Defendants are thus protected against
compelled testimony. And that leaves them open to
cross-examination about voluntary statements given at trial on
direct examination, or earlier in the course of pretrial police
investigation.
¶88 The first application of this principle is deeply embedded
in controlling case law, going back at least as far as Fitzpatrick v.
United States, 178 U.S. 304 (1900). In Fitzpatrick, the Court held that
an accused who “waives his constitutional privilege of silence” by
“tak[ing] the stand in his own behalf” is subject to
cross-examination. Id. at 315. So “[w]hile no inference of guilt can
be drawn from [the defendant’s] refusal to avail himself of the
privilege of testifying,” the defendant “has no right to set forth to
the jury all the facts which tend in his favor without laying himself
open to a cross-examination upon those facts.” Id. Statements made
on direct examination are made voluntarily. And they are thus fair
game on cross-examination. In other words, a defendant is treated
“with the same latitude as would be exercised in the case of an
ordinary witness.” Id.
¶89 The same goes for statements made voluntarily to police
during an investigation. This is a core premise of Miranda v.
Arizona, 384 U.S. 436 (1966). That case established a warning that
informs suspects of their right “to remain silent.” Id. at 444
(emphasis added). But that warning also includes the famous
“explanation” that “anything” they say “can and will be used against
[them] in court.” Id. at 469 (emphases added).
¶90 These premises follow naturally from the core guarantee of
the Fifth Amendment. The protected right is a right against
compelled self-incrimination.24 That right is always subject to

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24 Miranda protects suspects from coercive interrogations, not

inadvisable voluntary statements. See, e.g., Miranda v. Arizona, 384
U.S. 436, 473–74 (1966) (“If the individual indicates in any manner,
at any time prior to or during questioning, that he wishes to remain
silent, the interrogation must cease.” (emphases added) (footnote
omitted)); id. at 474 (“Without the right to cut off questioning, the
setting of in-custody interrogation operates on the individual to
(continued . . .)
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waiver, as when the defendant decides to speak voluntarily about
his involvement in a crime. See Berghuis v. Thompkins, 560 U.S. 370,
384 (2010) (“Where the prosecution shows that a Miranda warning
was given and that it was understood by the accused, an accused’s
uncoerced statement establishes an implied waiver of the right to
remain silent.”). And once a suspect does that, he is in no position
to complain about cross-examination highlighting differences
between voluntary statements made at two different stages of
interaction with the government.
¶91 Argueta cannot and does not assert that his statements to
the police were in any way compelled or involuntary. He gave them
voluntarily after he received his Miranda warnings—warnings that
included the caution that anything he said could and would be
used against him in court. And the State made good on that
promise. That is all that happened here. Argueta was
cross-examined about voluntary statements he made to the police
during his voluntary testimony at trial. And he is thus in no
position to argue that this cross-examination infringed his Fifth
Amendment rights.
II. Doyle and Charles
¶92 Fitzpatrick and Miranda provide the context for and explain
the Supreme Court’s subsequent decisions in Doyle v. Ohio, 426 U.S.
610 (1976), and Anderson v. Charles, 447 U.S. 404 (1980). Contrary to
Argueta’s assertions, these decisions did not establish a right to
give two different voluntary statements about a crime and then
avoid cross-examination about the differences so long as the
statements do not flatly contradict one another. They establish only
a narrow limitation on the scope of permissible cross-examination.
And they do so in a manner that confirms the propriety of the
cross-examination challenged in this case.

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overcome free choice in producing a statement after the privilege
has been once invoked.” (emphases added)); id. at 478 (“The
fundamental import of the privilege while an individual is in
custody is not whether he is allowed to talk to the police without
the benefit of warnings and counsel, but whether he can be
interrogated.“ (emphasis added)); id. (“To summarize, we hold that
when an individual is taken into custody or otherwise deprived of his
freedom by the authorities in any significant way and is subjected to
questioning, the privilege against self-incrimination is jeopardized.”
(emphases added)).
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Lee, A.C.J., concurring in part and concurring in the judgment
¶93 Doyle prohibits the prosecution from seeking to impeach a
defendant by commenting on his “silence” during a police
investigation. 426 U.S. at 617–19. But that holding is tethered to and
based on the Miranda warning—and the notion that it is
fundamentally unfair for the state to advise a suspect that he has
the “right to remain silent” only to later highlight his silence as a
basis for an inference of guilt at trial. Id. And Charles offers an
important clarification of the Doyle principle by holding that there
is no infringement of the Fifth Amendment where the
cross-examination does not comment on “silence” but instead
“inquires into prior inconsistent statements” made voluntarily to
the police. 447 U.S. at 408.
¶94 Taken together, Doyle and Charles sustain the decision of
the court of appeals. They clarify that the prosecution is prohibited
from commenting on a suspect’s invocation of and reliance on the
Miranda right to remain silent as a basis for an inference of guilt.
But they reserve the prosecution’s right to pursue
cross-examination when the defendant has not exercised the right
to remain silent but instead has spoken voluntarily to police and
offered an explanation for his involvement in a crime.
A. Doyle
¶95 The defendant in Doyle v. Ohio was arrested and convicted
on charges of drug trafficking. 426 U.S. 610, 611 (1976). At the time
of his arrest, he was advised of his Miranda right to remain silent.
Id. at 612. And he exercised that right—he did not speak to the
police. Afterward, the defendant took the witness stand and sought
to undermine the government’s portrayal of a drug deal in which
the defendant had stood next to “a well-known ‘street person’ with
a long criminal record,” id. at 611, who held “a package under his
arm, presumably after the transaction” had taken place, id. at 612.
The defendant testified that in reality the “street person” had
“framed” him—that the “street person” was the dealer, and that he
(the defendant) had been seeking only to purchase drugs. Id. at 613.
¶96 The prosecution sought to undermine the defendant’s
“framing” defense by questioning the defendant about his silence
at the time of the initial police investigation. Id. at 613–14. It was in
this context that the Doyle Court held that “impeachment use of a
defendant’s post-arrest silence,” id. at 616, is an infringement of the
defendant’s constitutional rights—a “fundamentally unfair” move
that amounts to “a deprivation of due process,” id. at 618.
Importantly, the Doyle Court did not root its decision in some
freestanding notion of “fairness” or “due process.” It specifically

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Lee, A.C.J., concurring in part and concurring in the judgment
based its “fairness” inquiry on the content of the required Miranda
warning. See id. at 617.
¶97 The Doyle Court acknowledged that cross-examination
regarding a defendant’s voluntary “post-arrest statements” is
entirely appropriate Id. (emphasis added). But it viewed
commentary on a defendant’s post-arrest silence as a different
matter. The Court noted that Miranda “require[s] that a person
taken into custody be advised immediately that he has the right to
remain silent.” Id. And it noted that a suspect’s “[s]ilence in the
wake of these warnings may be nothing more than the arrestee’s
exercise” of the Miranda right.25 Id. Although “the Miranda
warnings contain no express assurance that silence will carry no
penalty,” the Court concluded that “such assurance is implicit to
any person who receives the warnings.” Id. at 618. And “[i]n such
circumstances, it would be fundamentally unfair and a deprivation
of due process to allow the arrested person’s silence to be used to
impeach an explanation subsequently offered at trial.” Id. (footnote
omitted).
¶98 This clear holding of Doyle has no purchase in a case like
this one. Here, there was no commentary on a defendant’s
invocation of silence, but only commentary about his voluntary
statements. That is fair game under Doyle.
¶99 Doyle is based on fundamental fairness concerns rooted in
a defendant’s reliance on the implied promises of the Miranda
warnings. There are no such concerns in a case like this one.
Argueta was given no “implicit” assurance that his voluntary
statements to police would not be used against him. He was told
the exact opposite. See Miranda v. Arizona, 384 U.S. 436, 469
(establishing the warning that “anything” a suspect says “can and
will be used against [him] in court”). So he was in no position to
cry foul when his voluntary, post-Miranda statements were used for
impeachment at trial.

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25 Because a defendant’s invocation of his right to remain silent

must be “unambiguous,” a defendant cannot “invoke” his right to
remain silent—and thereby put an end to questioning and suppress
any subsequent statements he makes—by simply remaining silent
for some extended period of time. Berghuis v. Thompkins, 560 U.S.
370, 381–82 (2010). Any statements made after a valid Miranda
warning are thus fair game in the absence of a clear statement of a
desire to remain silent. See id. But of course a defendant may always
exercise his right to remain silent by making no reply at all.
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Lee, A.C.J., concurring in part and concurring in the judgment
B. Charles
¶100 This reading of Doyle is confirmed by the Court’s per
curiam opinion in Anderson v. Charles, 447 U.S. 404 (1980). Charles
reinforced the distinction between an impermissible inference from
silence (in contravention of the Miranda warning) and permissible
cross-examination and commentary on voluntary statements made
to police. See id. at 408–409. And it openly rejected a “formalistic”
understanding of “silence” that would blur the distinction between
the two. Id. at 409.
¶101 The defendant in Charles was arrested while driving a
stolen car—a car that belonged to a man “who had been strangled
to death in his Ann Arbor home less than a week earlier.” Id. at 404.
The defendant, found with personal property belonging to the
deceased man, was given his Miranda warnings and asked about
the stolen car. Id. at 404–05. He then voluntarily told the
investigating officer “that he [had] stole[n] the car in Ann Arbor
from the vicinity of Washtenaw and Hill Streets, about two miles
from the local bus station.” Id. at 405. But at trial, the defendant
testified that he had taken the “unattended” car in question “from
the parking lot of Kelly’s Tire Co. in Ann Arbor.” Id. On
cross-examination, the prosecution challenged the trial testimony
as a “recent fabrication” and asked the defendant why he hadn’t
told “anybody at the time [he was] arrested, where [he] got that
car.” Id. at 406. The prosecution also emphasized that the defendant
had previously told an investigating police officer that he had
stolen the car from “Washtenaw and Hill Street.” Id.
¶102 The defendant subsequently filed a federal habeas
petition. Id. The Sixth Circuit held that “the prosecutor’s questions
about [the defendant’s] post-arrest failure to tell officers the same
story he told the jury violated due process under the rule of Doyle
v. Ohio.” Id. at 407 (citation and internal quotation marks omitted).
But the Supreme Court reversed, emphasizing many of the points
that I have highlighted above.
¶103 First, the Charles Court highlighted the limited nature of
the Doyle holding. “Doyle bars the use against a criminal defendant
of silence maintained after receipt of governmental assurances.” Id.
at 408 (emphasis added). It “does not apply to cross-examination
that merely inquires into prior inconsistent statements.” Id. “Such
questioning makes no unfair use of silence because a defendant
who voluntarily speaks after receiving Miranda warnings has not
been induced to remain silent.” Id. “As to the subject matter of his
statements, the defendant has not remained silent at all.” Id.

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Lee, A.C.J., concurring in part and concurring in the judgment
¶104 Second, the Charles Court acknowledged that the line
between silence and prior statements could be considered fuzzy. It
noted that the Sixth Circuit had adopted a reading of Doyle that
would bar questions that concerned a defendant’s “failure to tell
arresting officers the same story he told the jury.” Id. (emphasis
added) (citation omitted). And it conceded that there is a sense in
which the failure to tell the same story told on a previous occasion
“may be said to involve ‘silence’ insofar as it omits facts included
in the other version.” Id. at 409. But the Charles Court expressly
repudiated this “formalistic understanding of ‘silence.’” Id. In place
of that view, the Court reinforced the Fifth Amendment principles
at the heart of Miranda and Doyle, holding that Doyle is implicated
only when the prosecution makes reference to a defendant’s
“exercise of his right to remain silent.” Id. at 408 (citation omitted);
see also id. at 409 (noting that a question that seeks only “to elicit an
explanation for a prior inconsistent statement” is not a question
that seeks to “draw meaning from silence,” and is thus
constitutional under Doyle).
¶105 These principles again reinforce the court of appeals’
analysis in this case. There may be a metaphysical sense in which
questions about perceived differences between Argueta’s
voluntary statements on the night of his arrest and his trial
testimony comment on “silence”—one story “omits facts included
in the other version.” Id. at 409. But this does not offend the Fifth
Amendment under Charles. The “formalistic” sense in which the
prosecution’s cross-examination amounts to commentary on
Argueta’s “silence” is beside the point—the key question is
whether the prosecution has asked the jury to infer guilt from a
defendant’s invocation of the right to remain silent set forth in the
Miranda warning. Where (as here) that is not the case, there is no
Doyle violation. There is only a fair commentary on differences
between two voluntary stories told by the defendant. And this kind
of commentary is the core of cross-examination and in no way
violates the Fifth Amendment.
III. Velarde
¶106 The above establishes the propriety of the prosecution’s
cross-examination and closing argument in this case under
controlling precedent of the United States Supreme Court. But any
arguable doubt on the matter is resolved by our decision in State v.
Velarde, 675 P.2d 1194 (Utah 1984). Velarde is directly on point and
directly controlling as a matter of stare decisis. The majority
unsettles our law by suggesting otherwise.

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Lee, A.C.J., concurring in part and concurring in the judgment
¶107 Velarde accepts the above understanding of the Charles
opinion. It also goes further, resolving any remaining doubts of
relevance to this case. Velarde holds that Doyle may be invoked only
after “an initial and sustained silence” once Miranda warnings are
given. Id. at 1196 (emphasis added). And it expressly holds that
Charles permits cross-examination aimed at highlighting
inconsistencies between two voluntary statements by the
defendant—whether the inconsistencies are mere differences or
outright contradictions.
¶108 The police confronted the defendant in Velarde after
pursuing a tip and finding him asleep in a truck in front of a
Morgan, Utah café at 2:00 a.m. Id. at 1195. After the police officer
confirmed that the truck was stolen, he arrested Velarde and gave
him his Miranda warnings. Id. In response to the officer’s questions,
Velarde volunteered that he did not own the truck, that he had
arrived at the café in the truck, and that he did not know he was in
Morgan. Id. But he gave no other details. “At no time did defendant
assert any right to remain silent.” Id.
¶109 Velarde later testified at trial. There, he gave additional
details that he had not provided at the time of his arrest. He stated
that another man had “picked him up [in the truck] in Salt Lake
City,” “driven past” the defendant’s home, and “stayed on the
freeway all the way to Morgan,” where the other man lived. Id. The
prosecution then sought to impeach the defendant on the basis of
the differences between the story he told at trial and the voluntary
statements he had made to the police officer. Id.
¶110 On appeal, the defendant asserted that this
cross-examination constituted commentary on his “silence” and
therefore infringed his Fifth Amendment rights under Doyle. Id. We
rejected that argument. We held that the “inconsistency of [the
defendant’s trial] testimony with what defendant had told the
officer” was a “legitimate basis for a prosecutor’s testing the
credibility of a witness by way of impeachment.” Id. And we
emphasized that the defendant had “waived” his “Fifth
Amendment guarantee to remain silent” by “talking freely with the
officer” about the crime after receiving his Miranda warnings, and
had done so again when he “took the witness stand.” Id.
¶111 That analysis is directly controlling here. Velarde makes
clear that there is no Fifth Amendment bar on cross-examination or
commentary that is aimed at highlighting differences between two
stories told voluntarily by a defendant. And it emphasizes that the
differences explored need not be limited to outright contradictions.

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Lee, A.C.J., concurring in part and concurring in the judgment
Velarde speaks of “inconsistency.” Id. But the inconsistency at issue
there, as here, involved mere differences—additional details
recounted at trial that were not given to police. In Velarde, after all,
it was entirely possible for the defendant to have both (a) not
owned the truck, arrived in Morgan in the truck, and not known he
was in Morgan at the time of his arrest (as he told the police), and
(b) been picked up in Salt Lake and driven to Morgan in the truck
by another person (as he testified at trial). 26 Yet we spoke of these
differences as inconsistencies that opened the door to
cross-examination. Id. And we emphasized that the defendant had

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26 In resisting this straightforward conclusion, the majority

notes that Velarde (a) “told the officer that arrested him that he did
not own the truck and that he had no idea he was in Morgan,” and
(b) testified at trial “that someone with a truck picked him up and
they drove together to Morgan, where that person lived.” Supra
¶ 51. That is correct. But it does not distinguish Velarde from this
case—it highlights the parallelism between the two cases.
The two stories told by Velarde were not directly contradictory.
By the time of trial, Velarde had of course discovered where he had
been on the night in question—he was on trial for a charge on
which he was arrested in Morgan. So in explaining that it was
another man who had driven him to Morgan, Velarde wasn’t
suddenly claiming that he had known he was in Morgan the night
he was arrested. To the extent there was any inconsistency, it was
in the embellishments and details relayed at trial (and not recounted
during the pretrial investigation).
That is exactly the situation here. Argueta, like Velarde, “freely
told the officer that arrested him,” supra ¶ 51, that he had met the
victim at a bar, come to her apartment, noticed the keys in the door,
and entered to place the keys on the dresser. “Then, at trial, he
testified altogether differently . . . .” Supra ¶ 51. He not only
provided elaborate details about meeting both the victim and her
ex-boyfriend at a bar—driving home together, sharing a beer, and
lending twenty dollars to the victim’s ex-boyfriend—he claimed
that he had tried to collect the debt some five or six times before,
and that recovering that eighteen-month-old debt had been the
reason for his presence at the apartment. Like Velarde’s additional
details, Argueta’s embellishments were surprising and arguably
suspicious, but ultimately reconcilable. It was perfectly possible for
every statement to be true. And if Velarde involved an
“inconsistency” on which it was fair game for the prosecutor to
comment, then the same holds true here.
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Lee, A.C.J., concurring in part and concurring in the judgment
waived his right to remain silent by speaking “freely with the
officer.”27 Id.
¶112 The majority asserts that Velarde “tells us little to nothing
about cases” where the alleged inconsistency involves details told
at trial that were not relayed previously. Supra ¶ 54. But that is
incorrect. This case is on all fours with Velarde. The inconsistency
we encounter today is exactly the kind of inconsistency we
encountered in Velarde. See supra ¶¶ 111, 111 n.26.
¶113 The majority resists this conclusion. It says that Velarde
could not have addressed whether “inconsistent” statements
include differences as well as outright contradictions, see supra ¶ 53,
because Velarde did not use the “key words” “‘supplemental,’
‘different,’ or ‘reconcilable,’”28 supra ¶ 54 n.12. I don’t follow. The

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27 The majority also tries to distinguish Velarde by pointing to
the fact that Argueta invoked his right to remain silent, while
Velarde did not. See supra ¶ 51. But Argueta immediately waived
that right by blurting out his initial, incomplete explanation from
the curb—“he freely told the officer that arrested him,” supra ¶ 51,
that he had met the victim at the bar and entered to place the keys
on the dresser. These statements were not protected as
involuntary—as evidenced by their admission into evidence at
trial. See Michigan v. Mosley, 423 U.S. 96, 104 (1975) (holding that
“the admissibility of statements obtained after the person in
custody has decided to remain silent depends under Miranda on
whether his ‘right to cut off questioning’ was ‘scrupulously
honored’” (emphasis added)); see also Berghuis v. Thompkins, 560
U.S. 370, 384 (2010) (“Where the prosecution shows that a Miranda
warning was given and that it was understood by the accused, an
accused’s uncoerced statement establishes an implied waiver of the
right to remain silent.”) And Velarde tells us precisely what to do in
that situation: “[I]n order to assert the [Doyle] privilege[,] there
must be an initial and sustained silence after the Miranda warning is
given.” 675 P.2d at 1196 (emphasis added). But Argueta, like
Velarde, “broke the silence guaranteed constitutionally,” id., and is
thus in no position to invoke Doyle—a point that remains unrefuted
by the majority.
28 This is a strange charge coming from a majority unconcerned
with the “key words” that do appear in Velarde. See supra ¶¶ 82, 107,
111 n.27 (highlighting Velarde’s requirement that a defendant
invoking Doyle must be able to show an “initial and sustained
(continued . . .)
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Lee, A.C.J., concurring in part and concurring in the judgment
doctrine of stare decisis “requires,” at a minimum, “that a decision
rendered by a court in a particular factual context govern later
decisions by that court arising under the same or similar facts.”
State v. Sims, 881 P.2d 840, 843 n.7 (Utah 1994). And that principle
requires our application of the Velarde holding here—a decision
giving “inconsistent” the content it must have had in order for the
Velarde court to come to the decision it did. Both Argueta’s and
Velarde’s statements were (1) voluntary and (2) ultimately
reconcilable, supra ¶¶ 111, 111 n.26—and Velarde’s were deemed
“inconsistent.” Velarde, 675 P.2d at 1196 (citation omitted). That
should be the end of the matter. See Steiner Corp. v. Auditing Div. of
Utah State Tax Comm’n, 1999 UT 53, ¶ 12, 979 P.2d 357 (“Stare decisis
means that like facts will receive like treatment in a court of law.”
(citation omitted)).
¶114 The majority also claims that we have not decided where
embellishments like Argueta’s “‘fall’ within the spectrum between
Doyle and Charles.” See supra ¶ 49. But I’m not sure how Velarde
could have been any clearer. That opinion went to great lengths to
distinguish the circumstance presented in a case like this one (and
Charles and Velarde) from the situation in Doyle. It noted that “[t]he
rationale which the Supreme Court [had] adopted for its decision
in Doyle” was that it was “fundamentally unfair for the prosecution
to impose a penalty at trial on a defendant who has exercised [his]
right by choosing to remain silent.” Velarde, 675 P.2d at 1195–96
(quoting United States v. Agee, 597 F.2d 350 (3d Cir. 1979)). It
reasoned that “[t]he very statement of that rationale demonstrates
that Doyle can have no application to a case in which the defendant
did not exercise his right to remain silent.” Id. at 1196 (quoting Agee,
597 P.2d 350). And it reinforced the straightforward reading of
Charles that allows “cross-examination that merely inquires into
prior inconsistent statements,” given that “a defendant who
voluntarily speaks after receiving Miranda warnings has not been
induced to remain silent.” Id. (quoting Charles, 447 U.S. at 408).
Again, it deemed “inconsistency” to encompass not just outright
contradictions but mere differences between a defendant’s two
voluntary accounts. Supra ¶¶ 111, 111 n.26. In these circumstances,
Velarde makes clear that the prosecutor’s inquiries “make[] no

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silence” and must not have “broke[n] the silence guaranteed
constitutionally” (citations omitted)); infra ¶ 114 (highlighting the
Velarde court’s holding that “Doyle can have no application to a case
in which the defendant did not exercise his right to remain silent”).
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Lee, A.C.J., concurring in part and concurring in the judgment
unfair use of silence.” 675 P.2d at 1196 (quoting Charles, 447 U.S. at
408).
¶115 These are precisely the circumstances of this case. And
Velarde is accordingly controlling and entitled to respect as a matter
of stare decisis. If the majority wishes to walk back Velarde it should
do so transparently—and with something more than the truism
that Velarde is less than two pages long and has been cited only once
for the proposition that a defendant’s “inconsistent testimony is
legitimate basis for prosecutor’s questioning his credibility.” See
supra ¶¶ 53–54 (citation omitted). I don’t see how a case being short
or cited only for its holding undermines its holding. If the court has
doubts about Velarde, it should own that position and justify it
under our doctrine of stare decisis. In the absence of such
justification, Velarde is controlling.
¶116 I would so hold. And I would affirm the court of appeals’
analysis under Velarde’s authority.

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