State v. Archuleta

2021 UT App 66

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
BOBBY FIEDEL ARCHULETA,
Appellant.

Opinion
No. 20190871-CA
Filed June 24, 2021

Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 171909463

Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Nathan H. Jack, Attorneys
for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGE JILL M. POHLMAN concurred. JUDGE GREGORY K. ORME
concurred, with opinion.

MORTENSEN, Judge:

¶1 Bobby Fiedel Archuleta, triggered to road rage by an
alleged horn honk, chased down the other car, and, after arguing
with the motorist, pulled out a gun and shot at the motorist
before turning and speeding away. A jury later convicted
Archuleta on two counts of aggravated assault, one count of
possession or use of a dangerous weapon by a restricted person,
one count of discharge of a firearm, and one count of theft by
receiving stolen property. Archuleta appeals, citing issues with
the evidence and jury instructions. We affirm.
 State v. Archuleta

BACKGROUND 1

¶2 Around 4:00 p.m. one late-summer afternoon, while
cruising down a Salt Lake City highway, a motorist (A.D.)
watched and listened for several blocks as a black sports car
followed him, the driver honking and yelling at him. The driver
had apparently been enraged after perceiving that A.D. had
honked at him. Soon, through his rear-view and side-view
mirrors, A.D. saw the driver catch up and pull alongside him.

¶3 The driver confronted A.D., yelling, “Do you want to get
popped?” A.D. noticed a “black male passenger” (Passenger) in
the passenger’s seat of the driver’s car, but Passenger did not say
anything. Ultimately, A.D. ignored the driver and, as the light
changed, kept driving. As A.D. continued to watch, the driver
pulled behind him and kept following.

¶4 Further down the road, the driver again pulled near A.D.,
who had stopped at another light. And, once more, the driver
threatened to shoot A.D. Thinking that the driver did not
actually have a gun, A.D. yelled back, “Well, if you’re going to
pop, then pop.” And, “Shoot the gun. Shoot the gun. Shoot it.
Shoot it. Don’t be just threatening me with a gun. Shoot it.” As
the light changed and A.D. began to pull forward, the driver
sped up, raised a black gun, and shot in A.D.’s direction while
turning right. The bullet tore through the passenger’s door,
nearly hitting A.D.’s four-year-old son, and lodged in the
passenger’s seat, where the seat frame stopped the bullet from
hitting A.D. The bullet left three holes: one entrance hole in the

1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” Layton City v. Carr, 2014 UT App 227, ¶ 2 n.2, 336 P.3d
587 (cleaned up).

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 State v. Archuleta

car door’s exterior, one exit hole in the car door’s interior, and
one entrance hole into the seat—“all consistent with one round.”

¶5 A.D. called 911 to report the shooting and pursued the
fleeing driver until the 911 dispatcher persuaded him to stop.
During that phone call, A.D. described the driver as “a Hispanic
man with tattoos—including a star tattoo on his face—wearing a
turquoise shirt, a black baseball hat with turquoise on it, and
prescription glasses.” He further reported that the driver drove a
“black Charger or Challenger” and that a “black male
passenger” was riding in the passenger’s seat.

¶6 Police, seeking the driver’s identity, soon identified
Archuleta as a suspect and began surveilling his apartment
within a few hours of the shooting. After only a few minutes,
Archuleta arrived—driving a black Dodge Challenger with a
black male in the passenger’s seat. Archuleta had a star tattoo
under his left eye and wore a turquoise shirt, a black baseball hat
with turquoise on it, and prescription glasses.

¶7 On searching Archuleta’s car, police found a stolen gun
one round short of full capacity. Although officers found no
casing in Archuleta’s car, the Salt Lake Police Crime Lab’s
director examined the slug found in A.D.’s car to determine if it
was fired by the gun recovered from Archuleta’s car. The
director testified that he was “100 percent sure” that the “bullet
recovered from [A.D.’s car] match[ed] the gun that was
recovered from Bobby Archuleta’s car.”

¶8 Archuleta denied being in a road rage incident and
claimed he was in Roy, not Salt Lake City, during the incident—
a claim identified at trial as an irreconcilable geographical
discrepancy. But an investigator familiar with cell phone
mapping technology testified that between 3:52 p.m. and 4:35
p.m. on the day of the shooting, Archuleta’s cell phone data
suggested he was somewhere between 3300 South in Salt Lake
City and Bountiful—a set of possible coordinates that did not

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preclude him from being present at the shooting’s time and
place. The investigator testified that “[b]ased on [the cell phone
data] before and after [the shooting] and considering travel time,
it’s literally physically impossible for the phone to” “have been
in Roy at that time.”

¶9 Archuleta contests none of these facts. Instead, he
emphasizes the following. When police first apprehended
Archuleta, an officer also interviewed Passenger. Passenger
initially claimed he was not near the area when the shooting
happened. However, when police found the gun, Passenger
changed his story, describing a car pulling up to Archuleta’s car
and that driver threatening to shoot them. Passenger claimed
that when the driver of the other car raised his hand, Passenger
ducked down before hearing a loud gunshot. Throughout this
interview, he “repeatedly told police they already knew what
happened and had the evidence.” At trial, the State submitted
the police report describing Passenger’s statement to imply
Archuleta’s guilt based on the fact that Archuleta later called
Passenger a “rat” when speaking with his wife (Wife). And for
the limited purpose of providing context for Archuleta’s later
statements to Wife, the trial court allowed Passenger’s statement.

¶10 Further, at trial, the court admitted, over Archuleta’s
objection, various jail phone calls between Archuleta and Wife. 2
These calls began with an automated recording stating, “This
call can be recorded and subject to monitoring at any time.” As
played and recited for the jury, the calls’ content included:

2. When the State played the calls for the jury, the court reporter
recorded most of these calls’ content as “inaudible.” But, during
closing argument, the State reviewed the calls again and clarified
much of the content. We use both sources to construct this
narrative.

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 State v. Archuleta

• Archuleta’s statement: “I can’t blame no one else for my
situation but myself.”

• The exchange between Archuleta and Wife: Wife said,
“You did this for no reason.” Archuleta responded, “I
know.”

• Wife’s statement: “Well, if you want to hang out with
losers and act fucking crazy.”

• Archuleta’s statement: “I don’t see how they’re going
to make these fucking aggravated assaults and shit
stick though because nobody was hit or nothing like
that.”

• The exchange between Archuleta and Wife: Wife said, “So
did [Passenger] tell on you?” Archuleta responded,
“Yeah.”

• Archuleta’s statement: “[Passenger]’s a rat. [Passenger]
told on me.”

• Archuleta’s instruction: “[T]ell him [Passenger]’s a rat.”

• The exchange between Archuleta and Wife: Wife said,
“He said in fairness that it was found in your car.”
Archuleta responded, “Yeah.” Wife continued, “You
have a gun, which is (inaudible).” Archuleta then said,
“It’s not my gun. Listen, (inaudible).” Wife then asked,
“How are you going to fight that?” And Archuleta
answered, “Because listen, there’s no DNA. There’s no
prints on the gun.”

• Archuleta’s statement: “Well, if the victim changes his
mind and doesn’t testify, they’ve got no case.”

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 State v. Archuleta

• The exchange between Archuleta and Wife: Wife said, “I
know, but you did this.” Archuleta responded, “Oh, I
know I did.”

• Archuleta’s statement: “There’s no DNA, there’s no prints
on the gun. Yeah, it was in my vehicle, but there was
fucking two of us in that vehicle. And not only that, there
was like a fucking good 30 minutes that they were
(inaudible) vehicle, occupying my vehicle with me not in
my vehicle.”

• The exchange between Archuleta and Wife: Wife said,
“You did this.” Archuleta responded, “You know I’m a
fuck up.”

¶11 In admitting these statements, the trial court clarified:

And so jurors, be advised that on these calls, there
will be conversations between [Wife] and . . .
Archuleta. [Wife]’s statements are not offered for
the truth of the matter asserted. They’re only
offered to provide context to Mr. Archuleta’s
statements.

¶12 The jury convicted Archuleta on two counts of aggravated
assault, one count of possession or use of a dangerous weapon
by a restricted person, one count of discharge of a firearm, and
one count of theft by receiving stolen property. Because
Archuleta had previously been convicted of a violent felony and
incarcerated at least twice before, the State sought to enhance the
charges by designating Archuleta as a habitual violent offender.
In a bifurcated proceeding the jury also found that Archuleta
met the statutory definition of a habitual violent offender. The
court then sentenced Archuleta to prison on each conviction.

¶13 Archuleta appeals.

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 State v. Archuleta

ISSUES AND STANDARDS OF REVIEW

¶14 On appeal, Archuleta raises several issues. First, he
contends that, over counsel’s objection, the trial court
erroneously admitted evidence, including: (1) hearsay of an
unavailable witness—Passenger—as a violation of his
constitutional right of confronting the witnesses against
him, and (2) allegedly incoherent, unreliable, and
constitutionally privileged jail phone calls between him
and Wife that also constituted hearsay in part. “With regard
to the admission of evidence, . . . we review the legal
questions to make the determination of admissibility for
correctness. We review the questions of fact for clear error” and
“we review the trial court’s ruling on admissibility for abuse of
discretion.” Arnold v. Grigsby, 2018 UT 14, ¶ 9, 417 P.3d 606
(cleaned up). However, “we will reverse an erroneous
evidentiary ruling only if, absent the error, there is a reasonable
likelihood that there would have been a more favorable result
for the defendant. A reasonable likelihood of a more favorable
outcome exists when the appellate court’s confidence in the
verdict actually reached is undermined.” State v. Kohl, 2000 UT
35, ¶ 17, 999 P.2d 7 (cleaned up). Insofar as Archuleta contends
these evidentiary concerns amount to constitutional errors, “an
otherwise valid conviction should not be set aside if the
reviewing court may confidently say, on the whole record, that
the constitutional error was harmless beyond a reasonable
doubt.” State v. Maestas, 2012 UT 46, ¶ 56, 299 P.3d 892 (cleaned
up).

¶15 Second, Archuleta contends that the trial court allowed an
inappropriate jury instruction regarding his possession of stolen
property and failed to provide a “reasonable alternative
hypothesis” jury instruction. “We review challenges to jury
instructions under a correctness standard.” State v. Powell, 2007
UT 9, ¶ 11, 154 P.3d 788 (cleaned up).

20190871-CA 7 2021 UT App 66
 State v. Archuleta

¶16 Lastly, Archuleta contends the trial court abused its
discretion by preventing him from offering testimony
concerning his status as a habitual violent offender. As stated,
regarding “the admission of evidence, . . . we review the legal
questions to make the determination of admissibility for
correctness. We review the questions of fact for clear error” and
“we review the trial court’s ruling on admissibility for abuse of
discretion.” Arnold, 2018 UT 14, ¶ 9 (cleaned up).

ANALYSIS

¶17 On review, we determine that even assuming Archuleta
prevailed on his arguments—and the trial court had excluded
Passenger’s interview and the jail calls—the remaining,
uncontested evidence overwhelmingly points toward
Archuleta’s guilt. Thus, any alleged errors, including alleged
constitutional errors, worked no prejudice against Archuleta,
and we determine the alleged errors to be harmless beyond a
reasonable doubt. We also conclude that the trial court
correctly issued the jury instructions Archuleta now contests.
Finally, we conclude the court did not exceed its discretion in
excluding testimony that is simply irrelevant. Accordingly, we
affirm.

I. Evidentiary Prejudice

¶18 Where, as here, an appellant contends evidence has been
entered in constitutional error, we need not reverse if the State
can meet its burden of showing that the “error is harmless
beyond a reasonable doubt.” State v. Valdez, 2021 UT App 13,
¶ 49, 482 P.3d 861 (quoting State v. Drommond, 2020 UT 50, ¶ 105,
469 P.3d 1056), cert. granted, June 10, 2021 (No. 20210175). In
other words, we must determine beyond a reasonable doubt that
the error was harmless and that the jury still would have
convicted Archuleta beyond a reasonable doubt had the
evidence been excluded. This requires us to “determine the

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probable impact of the [evidence] on the minds of the average
juror.” See id. ¶ 50 (cleaned up). In so doing, we consider, among
other things, the evidence’s importance and cumulative nature,
and “the overall strength of the prosecution’s case.” See id.
(cleaned up). Here, without determining whether constitutional
errors actually exist, we reject Archuleta’s evidentiary arguments
because the State has persuaded us that any evidence entered in
alleged error was harmless beyond a reasonable doubt. See
Drommond, 2020 UT 50, ¶ 98 (declining to determine whether an
error actually existed when “any error in [the] case was harmless
beyond a reasonable doubt”).

A. Passenger’s Statement

¶19 At trial, the State offered evidence of Passenger’s
statement to provide context for the statements Archuleta made
about Passenger during the jail phone calls with Wife. The trial
court allowed Passenger’s statement because it was “not being
offered for the truth of the matter asserted but only to explain
[Archuleta’s] subsequent statements. As such, the purported
statement [was] not inadmissible hearsay.”

¶20 Archuleta contends that “the trial court erred in admitting
the police report of [Passenger’s statement], an unavailable
witness, on the basis that it was not hearsay” because the State
could not reasonably have offered it for any other purpose
except for its truth. On these grounds, Archuleta asserts that
allowing Passenger’s statement violated his constitutional right
to confront witnesses against him. 3 Archuleta then declares the
error “was highly prejudicial,” but fails to provide any
explanation as to why.

3. See U.S. Const. amend. VI (“In all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
witnesses against him; . . . .”).

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 State v. Archuleta

¶21 However, Passenger’s statement was of limited
importance and cumulative of other evidence, and without it,
the State’s case remained very strong. See Valdez, 2021 UT App
13, ¶¶ 49–50. In short, the State has persuaded us that its
inclusion was harmless beyond a reasonable doubt.

¶22 Taking the alleged error at its absolute worst, we see no
material impact to this case. In relevant part, Passenger’s
interview included a vague indication that he “was afraid that
retaliation for him talking would happen” and his view that
police already knew what happened and had the evidence.
Passenger also stated that a driver in a different car pulled up to
them, threatened to shoot them, and raised his hand before
Passenger ducked and heard a loud gunshot. The trial court
instructed the jury that the police report containing Passenger’s
statement could not be used “as proof of any of the crimes in this
case” and that it could be used only “to give context to the
statements” in the jail phone calls. But even if the jury took
Passenger’s statement for the truth of the matter asserted, it does
not clearly further incriminate Archuleta, and it could even cut
against the State’s case because it described circumstances
exactly opposite of what A.D. described. While the State did use
Passenger’s statement—in concert with Archuleta’s own
statements in the jail calls that Passenger was “a rat”—to imply
Archuleta’s guilt, this inference was hardly the crux of the State’s
case, and at its worst, carries little weight compared to the
remaining overwhelming evidence of Archuleta’s guilt.

¶23 Taking the alleged error out of the equation, imagining a
scenario where the court excluded the evidence, also does not
change our analysis. Indeed, doing so only highlights the State’s
more important evidence. With or without Passenger’s
statement, the jury could still consider that A.D. reported a
shooting by “a Hispanic man with tattoos—including a star
tattoo on his face—wearing a turquoise shirt, a black baseball hat
with turquoise on it, and prescription glasses,” who had been

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 State v. Archuleta

driving a “black Charger or Challenger” with a black male in the
passenger’s seat. And when police located Archuleta, a Hispanic
man with a star tattoo under his left eye, he wore a turquoise
shirt, black baseball hat with turquoise on it, and prescription
glasses. He was driving a black Dodge Challenger with a black
male passenger. In that car, police found a handgun one round
short of full capacity, which police later determined fired the
bullet found in A.D.’s car. And, to boot, Archuleta’s cell phone
data placed him in the approximate area at the time of the
shooting.

¶24 Without Passenger’s statements, the jury had not only
ample but substantial evidence demonstrating Archuleta’s guilt
beyond a reasonable doubt. Indeed, the challenged evidence is
hardly the State’s most important and is cumulative of the other
evidence identifying Archuleta as the shooter. See id. Even
without it, the State’s case remained very strong. Accordingly,
the State has carried its burden to show that any error was
harmless beyond a reasonable doubt.

B. Jail Phone Calls

¶25 Archuleta also contends that the court erred in admitting
jail phone calls contrary to his objections that the calls violated
constitutional and evidentiary marital privilege, 4 constituted

4. Specifically, Archuleta bases his argument on article I, section
12 of the Utah Constitution, which provides that “a person shall
not be compelled to testify against the person’s spouse.” Utah
Const. art. I, § 12. “Utah courts have not determined whether the
harmless-beyond-a-reasonable-doubt standard applies to
violations of the Utah Constitution,” but “[w]e need not resolve
that question here, because we conclude that admission of the
challenged [evidence] was harmless even under the higher
(continued…)

20190871-CA 11 2021 UT App 66
 State v. Archuleta

hearsay in part, and violated Utah Rule of Evidence 403. 5
Archuleta then asserts that the evidence was prejudicial because
otherwise, the State would not have used it. Whether the jail
calls’ admission was actually a constitutional error violating
Archuleta’s rights under article I, section 12 of the Utah
Constitution (or whether the jail phone calls were privileged at
all) remains an issue we need not address here, because even
assuming that it was, the State has convinced us that the error
was harmless beyond a reasonable doubt. 6 See generally Valdez,
2021 UT App 13, ¶¶ 49–50.

¶26 Although the jail phone calls may have helped further
confirm Archuleta’s identity as the shooter, the State did not
even rely on the phone calls’ most damning contents to make
this point in the first place. See supra ¶ 10. Instead, during closing
argument, the State first focused on nearly all the other evidence
identifying Archuleta as the shooter. And while the State may
have used the jail phone calls to further incriminate Archuleta,
the statements, “I can’t blame no one else for my situation but
myself” and “[Passenger]’s a rat” merely cumulate, and hardly
tip the scales on top of the remaining overwhelming,

(…continued)
beyond-a-reasonable-doubt standard.” See State v. Gallegos, 2016
UT App 172, ¶ 63, 380 P.3d 44.

5. Again, in admitting these statements, the court instructed the
jury that the State did not present Wife’s statements in the jail
phone calls “for the truth of the matter asserted,” but “to provide
context to Mr. Archuleta’s statements.”

6. We note, however, that we recently discussed, but did not rule
on, the merits of substantively similar arguments in State v.
Samora, 2021 UT App 29, ¶¶ 38–40, 484 P.3d 1206, petition for cert.
filed, May 19, 2021 (No. 20210347).

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 State v. Archuleta

uncontested evidence. Whether the court admitted the jail phone
calls does not change the fact that Archuleta himself; his clothes,
tattoos, and glasses; his car; and his passenger all matched A.D.’s
description exactly—not to mention that the gun found in his car
matched the bullet found in A.D.’s car, and that cell phone data
undermined his original statement to police by placing him in
the shooting’s approximate area during the relevant time frame.
Given all of this overwhelming evidence of his identity, any
error in admitting the jail phone calls was harmless beyond a
reasonable doubt.

II. Jury Instruction Challenges

¶27 Archuleta also raises two challenges to the jury
instructions, contending first, that the court improperly allowed
an unconstitutional jury instruction, and second, that the court
erroneously failed to include a reasonable-alternative-hypothesis
jury instruction. 7 We disagree.

7. Archuleta also contends that his trial counsel offered
ineffective assistance and that the court plainly erred in allowing
him to be convicted for theft by receiving stolen property even
though the evidence failed to support the charge. To support
these contentions, he offers some facts about the trial and recites
the standard of review for ineffective assistance and plain error
claims. But,
the Utah Rules of Appellate Procedure require an
appellant’s brief to contain the contentions and
reasons of the appellant with respect to the issues
presented, with citations to the authorities,
statutes, and parts of the record relied on. Briefs
must contain reasoned analysis based upon
relevant legal authority. An issue is inadequately
briefed when the overall analysis of the issue is so
(continued…)

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 State v. Archuleta

A. Jury Instruction 35

¶28 First, Archuleta argues that the court erred in allowing
jury instruction number 35, which dealt with the offense of theft
by receiving stolen property. At the time, that offense was set
forth in Utah Code section 76-6-408(1), which in relevant part
provides,

A person commits theft if he receives, retains, or
disposes of the property of another knowing that it
has been stolen, or believing that it probably has
been stolen, or who conceals, sells, withholds or
aids in concealing, selling, or withholding the
property from the owner, knowing the property to
be stolen, intending to deprive the owner of it.

Utah Code Ann. § 76-6-408(1) (LexisNexis 2017) (current version
at id. § 76-6-408(2) (Supp. 2020)). The jury instruction on this
charge stated,

Possession of property recently stolen, if not
satisfactorily explained, is ordinarily a
circumstance from which you may reasonably draw
the inference and find, in light of the surrounding
circumstances shown by the evidence in the case,
that the person in possession of the stolen property
knew that it was stolen.

(…continued)
lacking as to shift the burden of research and
argument to the reviewing court.
State v. Davie, 2011 UT App 380, ¶ 16, 264 P.3d 770 (cleaned up).
We conclude that to be the case here. Reciting a legal standard
but failing to apply relevant facts, argue, or analyze, renders an
issue inadequately briefed—as such, we decline to address these
issues.

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 State v. Archuleta

Thus, if you find from the evidence and beyond
a reasonable doubt (1) that the defendant was in
possession of property, (2) that the property was
stolen, (3) that such possession was not too remote
in point of time from the theft, and (4) that no
satisfactory explanation appears from the evidence,
then you may infer from these facts and find that the
defendant knew the property was stolen.

(Emphasis added.)

¶29 In attacking this instruction, Archuleta asserts that the
instruction shifted the burden to him to explain his possessing
the firearm and thus “directly contradicts [his] right against self-
incrimination,” in part by impermissibly shifting the burden of
proof from the State to him. But his argument overlooks what
our caselaw has defined as the most important aspect of such
instructions—namely, whether the instruction required the jury
to make a presumption of guilt, as opposed to allowing the jury
to make a presumption or inference of guilt. See State v. Carlson,
934 P.2d 657, 659–60 (Utah Ct. App. 1997); State v. Perez, 924 P.2d
1, 4–5 (Utah Ct. App. 1996).

¶30 Cases reviewing nearly identical jury instructions on this
charge have upheld those convictions where the instruction
“meant only that if the jury found certain facts that [the jury]
may infer from those facts that the defendant committed the
theft” and where “the instruction allowed only an inference of
guilt, and then only if justified by the facts.” See id. at 4–5
(cleaned up) (citing State v. Smith, 726 P.2d 1232 (Utah 1986)). In
other words, courts uphold such jury instructions when “the
context of the instruction as a whole allow[s] only a permissible
inference.” Id. at 5. We, therefore, review whether this
instruction provides the jury with a mandatory inference or a
permissive inference. Where “the instruction in this case does
not differ from that in [other caselaw] in any material way, we

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 State v. Archuleta

conclude that the instruction is constitutional and does not
improperly shift the burden of proof to defendant.” See Carlson,
934 P.2d at 660 (cleaned up). As Archuleta notes in his brief, the
difference is semantic, but semantics matter—and the word
“may” renders this instruction semantically permissive.
Therefore, because the instruction allowed the jury to make a
presumption of guilt, instead of requiring the jury to make a
presumption of guilt, the court correctly submitted the
instruction to the jury.

B. Reasonable-Alternative Hypothesis Instruction

¶31 Second, Archuleta contends that the court incorrectly
failed to provide the jury with a reasonable-alternative-
hypothesis jury instruction based on the idea that the jury could
have concluded that another person, such as Passenger, was the
shooter. Citing this and similar various alternative theories,
Archuleta argues that the court should have provided the
instruction simply because it is possible that one of these
alternative theories could be true. Archuleta concedes that no
caselaw required such an instruction in this case but suggests
that such an instruction “[n]evertheless . . . is not inappropriate.”

¶32 We note that arguing that a trial court was not required to
do something but nevertheless could have done it (even though
it did not), unequivocally fails to present the kind of error that
prevails on appeal. However, our supreme court has dispensed
with this question:

In regard to the propriety of the so-called
“reasonable alternative hypothesis” jury
instruction, any controversy over its use constitutes
nothing more than a tempest in a teapot. The
prosecution’s burden of proof in any criminal case,
whether the evidence be direct or circumstantial, or
a combination of both, is that of beyond a
reasonable doubt. . . . Thus, if the jury instructions

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 State v. Archuleta

clearly informed the jury of the standard of
proof beyond a reasonable doubt, no
“reasonable alternative hypothesis” instruction
was required. . . . During the process of
determining that the evidence [meets] this high
standard, the jurors necessarily exclude[] all
“reasonable alternative hypotheses” . . . .

State v. Burton, 642 P.2d 716, 719 (Utah 1982) (cleaned up).
Accordingly, where, as here, the court properly instructed the
jury regarding the standard—proof beyond a reasonable
doubt—the court was not required to offer Archuleta’s proposed
instruction and refusing to do so cannot have been incorrect.

¶33 Therefore, Archuleta fails on both contentions because the
trial court properly submitted an instruction including an
allowance for a permissive presumption and because the trial
court was not required to include a reasonable-alternative-
hypothesis instruction.

III. Irrelevant Testimony

¶34 Following Archuleta’s conviction on the primary charges,
the jury faced the issue of whether Archuleta met the statutory
definition of a habitual violent offender. Archuleta does not
identify any particular testimony he would have provided
except to indicate he wanted to opine on whether he deserved to
be found a habitual offender. On this issue, the trial court
declined to allow him to testify because such testimony would
have been irrelevant. Archuleta contends that because he was
the defendant he gets to testify in the case. However, this is not
how our rules of evidence work, and Archuleta fails to show
how the trial court exceeded its discretion in excluding irrelevant
testimony.

¶35 Utah Rule of Evidence 402 provides, “Irrelevant evidence
is not admissible.” And evidence is irrelevant if it does not

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“make a fact more or less probable than it would be without the
evidence.” Id. R. 401. All the evidence required to show that a
person is a habitual violent offender is that the person convicted
of a violent felony must have “on at least two previous occasions
. . . been convicted of a violent felony and committed to either
prison in Utah or an equivalent correctional institution of
another state or of the United States.” Utah Code Ann. § 76-3-
203.5(b) (LexisNexis 2017). So, after a violent felony conviction
on the charge at hand, the only relevant evidence is whether the
defendant had enough previous violent felony convictions also
resulting in qualifying incarceration. Evidence unrelated to these
questions would be entirely irrelevant to the question before the
jury because it wouldn’t serve to make the elements more or less
probable or have any “consequence in determining the action.”
See Utah R. Evid. 401. Archuleta’s proposed testimony would
not touch on these questions—and indeed, his opinion on
whether he deserved to be found a habitual offender represents
testimony that would constitute the paradigm of irrelevancy.
Consequently, we conclude that the trial court was well within
its discretion to refuse to admit irrelevant testimony.

CONCLUSION

¶36 On the record before us, (1) any alleged evidentiary error
was harmless beyond a reasonable doubt, (2) the court did not
err in the jury instructions it provided or did not provide, and (3)
the court did not abuse its discretion in declining to admit
irrelevant testimony.

¶37 Affirmed.

ORME, Judge (concurring):

¶38 I concur in the court’s opinion. I write separately to
register my indignation at the intolerable increase in “road rage”
incidents, now quite commonplace in our fair state. See, e.g., Pat

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 State v. Archuleta

Reavy, 2 People Shot in I-15 Road Rage Incident; Troopers Say Such
‘Mind-Blowing’ Cases on the Rise, Deseret News (Jan. 25, 2021) 8 (in
reporting on a road rage incident culminating in shots fired and
the closing of I-15, article notes that “UHP troopers have
reported a sharp increase in the number of road rage incidents in
2020 from the year before”). This is the third road rage case our
court has seen recently. See State v. Watson, 2021 UT App 37, 485
P.3d 946; State v. Farnworth, 2018 UT App 23, 414 P.3d 1053. And
obviously, this is just the tip of the iceberg. For every road rage
case that results in conviction and appeal, there must be many
more that are resolved in plea bargains or convictions that are
not appealed and—of even more concern—yet more cases where
a road warrior escapes identification and arrest or no report is
made.

¶39 How did we end up like this, with so many of us deeming
our right to travel in our lane of choice, at our speed of choice,
without any interference whatsoever from other members of the
traveling public, to be an inalienable right? When I was a boy, I
remember my father regularly slowing down and waving a
fellow driver over if it appeared that they needed to come into
his lane of travel, perhaps so that an upcoming turn could be
made or object in the road avoided. That driver would
invariably offer a wave of appreciation. My father would wave
back. He was not exceptional; this was the norm. Traveling
down the highways and byways of Utah was not viewed as a
substitute for warfare, but as more of a shared experience in
civility. Now, if it appears that a driver wishes to come into our
lane, many of us will speed up in an effort to prevent that

8. https://www.deseret.com/utah/2021/1/25/22248578/two-shot-
on-i-15-prompting-freeway-closure-near-lehi [https://perma.cc/
673Q-84NL].

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 State v. Archuleta

maneuver. 9 If the driver comes over anyway, we will be
outraged at having been “cut off,” as though such a misstep is a
threat to civilization as we know it, and the worst among us will
reply with honking, flashing lights, swerving, unpleasant hand
gestures, etc.

¶40 In a distressing number of cases, particularly outraged
drivers will take it a step further and strike the offending
driver’s car with their own vehicle or, of all things, open fire. See,
e.g., Garna Mejia, Utah Woman, Children Terrorized in Road-Rage
Incident on I-15, KSL.com (Apr. 11, 2021) 10 (reporting that a man
rammed a woman’s car two times with her young children
inside, followed her for ten miles, and yelled “I’m going to kill
you! I’m going to kill the kids! Get out, I will show you what’s
up!”); Mark Shenefelt, Road Rage on I-15 in Roy: UHP Says Man
Tried to Crash Another’s Car, Standard-Examiner (Dec. 21, 2020) 11

9. This is apparently enough of a problem that the Utah
Department of Transportation recently saw fit to post this
message on its overhead freeway message boards:
IT’S A LANE
NOT A BIRTHRIGHT
LET THEM MERGE
Reem Ikram, Utah’s Highway Message Boards: Who’s Behind it All
and How to Get Involved, ABC4.com (Feb. 27, 2021),
https://www.abc4.com/news/digital-exclusives/utahs-highway-
message-boards-whos-behind-it-all-and-how-to-get-involved/
[https://perma.cc/5CDT-NMMA].

10. ksl.com/article/50144470/utah-woman-children-terrorized-in-
road-rage-incident-on-i-15 [https://perma.cc/Q5XN-FKD9].

11. https://www.standard.net/police-fire/road-rage-on-i-15-in-
roy-uhp-says-man-tried-to-crash-anothers-car/article_31144733-
207a-5c21-b801-2485a6ff1495.html [https://perma.cc/PVF5-S3RV].

20190871-CA 20 2021 UT App 66
 State v. Archuleta

(reporting that an enraged driver swerved between lanes and
intentionally struck the victim’s vehicle, intending to cause it to
crash); Mark Shenefelt, Man Arrested in Layton After Apparent
Ogden Road Rage Shooting, Standard-Examiner (Aug. 19, 2019) 12
(reporting that as the victim sped up to pass another vehicle to
get onto an onramp to I-15, the driver being passed pointed a
handgun at the victim, shouted obscenities, and fired a round at
the vehicle). As ridiculous as this behavior is, it also sometimes
happens that the driver who was flipped off, honked at, or
brake-checked will note his disapproval by opening fire. See, e.g.,
Pat Reavy, Driver Arrested in Utah County Road Rage Incident
Charged with Attempted Murder, Deseret News (Feb. 2, 2021) 13
(reporting on an incident where a driver noted his disapproval
of being followed too closely by hitting his brakes, whereupon
the other driver pulled alongside the brake-tapper’s vehicle and
fired multiple shots into the vehicle). This is enough of a
possibility, it seems to me, that those among us who are inclined
to flip the bird to note their disapproval of an attempted or
accomplished cut-off or other perceived breach of driving
etiquette should refrain from such behavior, if not out of basic
decency, then out of a legitimate concern that the other driver
might be armed and see this as the kind of provocation that
warrants gunplay or running a car off the road.

¶41 There might be a tendency to think that those who engage
in acts of road rage are limited to a comparative handful of
low-lifes, and readers may wonder why I have bothered with

12. https://www.standard.net/police-fire/man-arrested-in-layton-
after-apparent-ogden-road-rage-shooting/article_0f677c82-2da3-
57cd-8cc6-9a992d350fa6.html [https://perma.cc/8VGC-J8B4].

13. https://www.deseret.com/utah/2021/2/2/22262654/driver-arre
sted-in-utah-county-road-rage-incident-charged-with-attempted
-murder [https://perma.cc/Q7BW-H7XB].

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 State v. Archuleta

this separate opinion since so few members of that subset of
humanity are regular readers of appellate opinions. I wish the
propensity to behave badly when driving was so limited, but I
fear that the attitude that is the genesis of road rage incidents
cuts across all segments of our society. Two brief examples may
help make the point that “we have met the enemy and it is us.” 14

¶42 A member of my extended family does not come across as
a low-life. She is financially well-off, well-groomed,
conservatively attired, and a regular at Sunday morning church
services. Her personal mantra is “What would Jesus do?” But
when driving, she ignores this precept. And she is quite
unapologetic about it. She is militantly proud of the fact that if
anyone tries to cut her off or fails to move right when she comes
up behind them in the fast lane, she will blare her horn with one
hand while flipping the offending driver off with the other—a
technique she is pleased to have mastered over the years.

¶43 A few years ago, as I was about to make the move from
I-15 to I-80, a car flew past me on the right, pulled in front of me,
and then slowed down so the driver could honk at, verbally
berate, and flip off a driver now on our right, apparently for
some perceived affront—very likely the dreaded cutting off. This
“fast and furious” driver’s tirade went on for a few seconds and
his pulling in front of me caused me to brake to avoid hitting

14. While this basic phrase is often attributed to the cartoonist
Walt Kelly, it has a much more interesting morphology. See
generally Larry Bush, The Morphology of a Humorous Phrase: “We
Have Met the Enemy and He Is Us,” Humor in America (May 19,
2014), https://humorinamerica.wordpress.com/2014/05/19/the-
morphology-of-a-humorous-phrase/ [https://perma.cc/RF84-NC
G7].

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 State v. Archuleta

him. 15 This allowed me to get a good look at him, and I grimaced
when I realized that I knew him. He was a well-known member
of the Bar, although in that moment hardly the model of civility
to which we, as a profession, ostensibly aspire.

¶44 So while I would surely hope that readers of appellate
opinions are not the leading contingent of road rage culprits,
there are road ragers among us. For them, and for all their ilk in
Utah, my message is simple: Stop it! If you are not inclined to
stop it because it is the right thing to do, stop it because you risk
being shot or run off the road if you do not.

15. If I were of a different temperament and had a different
moral compass, I would have noted my disapproval of his
cutting me off with horn-honking and bird-flipping, and then
where would we have been?

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