State v. Davis

2013 UT App 228
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
ERIC JOSEPH DAVIS,
Defendant and Appellant.

Opinion
No. 20110204‐CA
Filed September 19, 2013

Third District, Salt Lake Department
The Honorable Royal I. Hansen
No. 101900931

Joan C. Watt, Michael R. Sikora, and Maren E.
Larson, Attorneys for Appellant
John E. Swallow and Christopher D. Ballard,
Attorneys for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE CAROLYN B. MCHUGH concurred. JUDGE WILLIAM A.
THORNE JR.1 concurred, with opinion.

VOROS, Judge:

¶1 Eric Joseph Davis appeals from his convictions for object
rape and forcible sodomy. Utah Code Ann. §§ 76‐5‐402.2, ‐403(2)
(LexisNexis 2012). He raises three grounds for reversing his
convictions: (1) alleged prosecutorial misconduct in cross‐
examining Davis and in closing argument, (2) evidence concerning

1. Judge William A. Thorne Jr. participated in and voted on this
case as a regular member of the Utah Court of Appeals. He retired
from the court before this decision issued.
 State v. Davis

a post‐offense order and protective measures, and (3) a
supplemental jury instruction concerning the prosecutor’s charging
discretion. We affirm.

BACKGROUND2

¶2 Davis and C.D. regularly used sex toys together. One day,
Davis called C.D. and told her he had “a surprise” for her. He later
showed her an “enormous” dildo. Labeled “XXL,” its size was
“extremely intimidating” to C.D. She objected to it and asked Davis
to return it to the store. According to C.D., Davis became “quiet”
and “distant” and drank several beers with an eight‐percent
alcohol content. Davis admitted that he drank about six beers that
evening.

¶3 Later that evening, C.D. took a bath. She testified that, while
she was in the bathtub, Davis brought the dildo into the bathroom.
C.D. told him, “Don’t get that near me. No way. You’re not using
that on me. Hell, no.” C.D. further testified that Davis forcibly
pulled her from the bathtub, bent her over a low wall in the
bathroom, pushed her face into the sink, and forcibly inserted the
dildo into her vagina.

¶4 C.D. “scream[ed] in pain and ask[ed Davis] to stop” and
unsuccessfully tried to remove the dildo herself. Davis told C.D.
that “if [she] didn’t quit crying, . . . he’d give [her] something to cry
about.” Davis also forced his penis and the dildo into C.D.’s anus.
Eventually Davis stopped using the dildo on C.D. and she
cooperated with Davis’s further sexual requests, hoping that he
“would not try to use [the dildo] on [her] again.” At the time, Davis
was six feet two inches tall and weighed 250 pounds; C.D. was five
feet six inches tall and weighed 120 pounds.

2. We recite the facts from the record in the light most favorable to
the jury’s verdict. State v. Geukgeuzian, 2004 UT 16, ¶ 2, 86 P.3d 742.

20110204‐CA 2 2013 UT App 228
 State v. Davis

¶5 The next morning, C.D. went to her job at a medical facility
and, on her lunch break, called her mother, who convinced C.D. to
report the incident. After work, C.D. called the police. The
responding officer noted that C.D. was initially “somber” and
“almost unemotional” but “broke down crying” on several
occasions. The officer took C.D.’s statement before escorting her to
the hospital for a sexual‐assault examination.

¶6 At the hospital, the attending nurse (Nurse) documented
C.D.’s bruises and other injuries with photographs and medical
diagrams. Nurse noted a bruise on C.D.’s cervix that was likely
caused by “a lot” of blunt force. Nurse also found a laceration on
C.D.’s anus as well as visible redness around C.D.’s genitals and
anus. C.D. had bruises on her thighs, hips, knees, left arm, and the
back of her left hand. C.D. reported vaginal, rectal, abdominal, and
hip pain to Nurse.

¶7 At trial, Davis testified that the encounter was entirely
consensual. He also testified that C.D.’s only objection to the dildo
was the amount of money he had spent on it because he was
unemployed at the time of these events. He speculated that C.D.
was motivated to falsely accuse him because, he claimed, she was
seeing someone else. Davis did not introduce evidence to support
this theory.

ISSUES AND STANDARDS OF REVIEW

¶8 First, Davis contends that the prosecutor committed
misconduct by mischaracterizing the reasonable doubt standard,
improperly commenting on the evidence, referring to statistics not
in the evidence, and shifting the burden of proof to Davis.

¶9 Davis preserved some of these claims by presenting them
“to the trial court in such a way that the trial court ha[d] an
opportunity to rule” on them. 438 Main St. v. Easy Heat, Inc., 2004
UT 72, ¶ 51, 99 P.3d 801 (citation and internal quotation marks

20110204‐CA 3 2013 UT App 228
 State v. Davis

omitted). Traditionally, when such claims are preserved, we have
reviewed the trial court’s rulings on “prosecutorial misconduct
claims for an abuse of discretion.” State v. Kohl, 2000 UT 35, ¶ 22,
999 P.2d 7.

¶10 But what standard applies in determining whether
unpreserved prosecutorial misconduct claims rise to the level of
reversible error is less clear. Unpreserved claims are generally
subject to the plain error standard of review, which requires the
appellant to show “(i) An error exists; (ii) the error should have
been obvious to the trial court; and (iii) the error is harmful, . . . .”
See State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). It is tempting to
conclude that if a prosecutor’s comments constitute garden‐variety
misconduct, “the defendant must show that the jury was ‘probably
influenced by those remarks,’” State v. Powell, 2007 UT 9, ¶ 36, 154
P.3d 788 (quoting State v. Troy, 688 P.2d 483, 486 (Utah 1984)),
whereas if “a prosecutor’s comments constituted a constitutional
violation,” the reviewing court will reverse unless “the
constitutional error was harmless beyond a reasonable doubt.”
State v. Tillman, 750 P.2d 546, 555 (Utah 1987) (internal quotation
marks omitted) (citing Chapman v. California, 386 U.S. 18, 23–24,
(1967); Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)).

¶11 However, as we recently explained, questions regarding the
prejudice standard to be applied in prosecutorial misconduct cases
“are not readily resolvable under our current precedent.” State v.
Wright, 2013 UT App 142, ¶ 41 n.6, 304 P.3d 887. In particular, our
case law “is not entirely clear” on “what standard of harmlessness
applies, and who bears the burden of proof, when a claim of
constitutional error is raised within the plain error context.” State
v. Cox, 2012 UT App 234, ¶ 15 n.2, 286 P.3d 15 (Voros, J., concurring
in part and concurring in the result in part).

¶12 Accordingly, in Wright we took the cautious approach of
“assuming that the harmless beyond a reasonable doubt standard
applies, even though the challenge to the error was unpreserved
and does not involve a violation of a fundamental constitutional

20110204‐CA 4 2013 UT App 228
 State v. Davis

right.” 2013 UT App 142, ¶ 41 n.6. Because, as in Wright, the
briefing here does not focus on these distinctions, and because in
any event the choice of prejudice standard is not outcome
determinative, we follow Wright and apply the harmless beyond a
reasonable doubt standard to Davis’s prosecutorial misconduct
claims. See State v. Menzies, 889 P.2d 393, 399 n.3 (Utah 1994)
(explaining horizontal stare decisis).

¶13 Second, Davis contends that the trial court abused its
discretion by admitting irrelevant testimony into evidence. “A trial
court has broad discretion in deciding whether evidence is
relevant, and we review a trial court’s relevance determination for
abuse of discretion.” State v. Fedorowicz, 2002 UT 67, ¶ 32, 52 P.3d
1194.

¶14 Third, Davis contends that the omission from the record of
the trial court’s response to a question from the jury violates rule
17(n) of the Utah Rules of Criminal Procedure, thus undermining
appellate review and making it impossible for Davis to determine
whether his trial counsel performed effectively. The State responds
that although the trial court failed to preserve the note, Davis has
not satisfied his burden to prove that prejudice resulted. “Any
error, defect, irregularity or variance which does not affect the
substantial rights of a party shall be disregarded.” Utah R. Crim. P.
30(a); see also State v. Calliham, 2002 UT 86, ¶ 45, 55 P.3d 573
(“Notwithstanding error by the trial court, we will not reverse a
conviction if we find that the error was harmless.”).

¶15 Davis also contends that, insofar as the general tenor of the
trial court’s response to the jury may be determined from the
existing record, the response constituted an improper comment on
the strength of the State’s case. The State responds that Davis has
not adequately reconstructed the record and that the trial court’s
response was correct and non‐prejudicial. “We review challenges
to jury instructions under a correctness standard.” Steffenson v.
Smith’s Mgmt. Corp., 862 P.2d 1342, 1346 (Utah 1993) (internal
quotation marks omitted). “However, to reverse a trial verdict,

20110204‐CA 5 2013 UT App 228
 State v. Davis

[we] must find not a mere possibility, but a reasonable likelihood
that the error affected the result.” Id. at 1347; see also Utah R. Crim.
P. 30(a) (“Any error, defect, irregularity or variance which does not
affect the substantial rights of a party shall be disregarded.”); State
v. Ingleby, 2004 UT App 447, ¶¶ 11–13, 104 P.3d 657 (affirming a
conviction, despite assuming the trial court responded to a jury
question “improvidently,” because “any error that might be found
is harmless”).

¶16 Finally, Davis contends that, even if none of his claims are
sufficiently harmful alone to require reversal, the combined effect
of the underlying errors is so great as to require reversal under the
cumulative error doctrine. Under the cumulative error doctrine, we
apply the “standard of review applicable to each underlying claim
or error.” Radman v. Flanders Corp., 2007 UT App 351, ¶ 4, 172 P.3d
668. We reverse only if the cumulative effect of multiple errors
undermines our confidence that a fair trial was had. State v. Dunn,
850 P.2d 1201, 1229 (Utah 1993).

ANALYSIS

I. Prosecutorial Misconduct

¶17 Davis contends that the “prosecutor engaged in repeated
instances of misconduct which undermines the fairness of this trial.
This alleged misconduct included: (1) improperly diminish[ing] the
burden of proof . . . ; (2) improperly asking [Davis] whether the
shop clerk lied and suggesting that [Davis] was lying; (3)
disparaging [Davis] . . . ; (4) denigrating the defense, arguing facts
not in evidence, and personalizing . . . ; and (5) shifting the burden,
arguing facts not in evidence, and denigrating the defense by
arguing, among other things, that the defense offered no reason
why [C.D.] would make up the claim . . . .” He argues that a new
trial is required because “[a]lone or together, this misconduct
impacted the fairness of the trial and undermined confidence in the
result.”

20110204‐CA 6 2013 UT App 228
 State v. Davis

¶18 We apply a two‐part test to determine whether the remarks
made by counsel are so objectionable as to merit a reversal in a
criminal case. We first consider whether “the remarks call[ed] to
the attention of the jurors matters which they would not be justified
in considering in determining their verdict.” State v. Troy, 688 P.2d
483, 486 (Utah 1984) (citation and internal quotation marks
omitted). If so, we then determine whether the remarks were
harmless beyond a reasonable doubt. See State v. Wright, 2013 UT
App 142, ¶ 41 n.6, 304 P.3d 887 (as explained supra ¶ 12).

¶19 “A prosecutor has the duty and right to argue the case based
on the total picture shown by the evidence or the lack thereof . . . .”
State v. Hales, 652 P.2d 1290, 1291 (Utah 1982) (citation and internal
quotation marks omitted). And in closing, counsel has
“considerable latitude” to argue his or her view of the evidence and
“the inferences and deductions arising therefrom.” State v. Tillman,
750 P.2d 546, 560 (Utah 1987) (citation omitted). Nevertheless, a
prosecutor may not argue a case based on facts not admitted into
evidence. See State v. Palmer, 860 P.2d 339, 344 (Utah Ct. App. 1993)
(“A comment by a prosecutor during closing argument that the
jury consider matters outside the evidence is prosecutorial
misconduct.”).

¶20 Determining prejudice “involves a consideration of the
circumstances of the case as a whole. In making such a
consideration, it is appropriate to look at the evidence of
defendant’s guilt.” Troy, 688 P.2d at 486.

If proof of defendant’s guilt is strong, the challenged
conduct or remark will not be presumed prejudicial.
Likewise, in a case with less compelling proof,
[appellate courts] will more closely scrutinize the
conduct. If the conclusion of the jurors is based on
their weighing conflicting evidence or evidence
susceptible of differing interpretations, there is a
greater likelihood that they will be improperly
influenced through remarks of counsel.

20110204‐CA 7 2013 UT App 228
 State v. Davis

Id. (citation and internal quotation marks omitted). Also relevant
is whether “the trial judge’s instructions to the jury further
weakened any improper impact of the prosecutor’s comment.”
State v. Dunn, 850 P.2d 1201, 1225 (Utah 1993). For example, an
instruction to “the jury not to consider the statements of counsel as
evidence” may be “ helpful in neutralizing the harmfulness of
error.” Id.

A. Cross‐Examination

1. Sarcastic Comments

¶21 Davis contends that the prosecutor improperly commented
on the evidence while cross‐examining him. Specifically, when
Davis stated that it was “kind of embarrassing talking about [his]
sex life with other people,” the prosecutor replied, “Oh, you bet it
is.” The trial court sua sponte admonished the prosecutor not to
“comment on the evidence.” The prosecutor also cross‐examined
Davis about several parts of his testimony and asked if he had
informed the investigating detective of those details. After Davis
gave a string of negative responses, the prosecutor said, “There’s
quite a lot of things that you didn’t tell the detective.” The defense
did not object, and the court did not intervene. Shortly thereafter,
the prosecutor asked Davis if his family had passed C.D.’s house
while “looking for a car.” Davis responded, “Not a car, an SUV, I
believe.” The prosecutor then asked Davis, “An SUV . . . is not a
car?” When Davis replied, “No. It’s an SUV,” the prosecutor said,
“I apologize. I thought it was the same thing.” The trial court again
admonished the prosecutor sua sponte again for commenting on
the evidence and stated, “I won’t tell you again.”

¶22 Davis asserts that the prosecutor’s comments were sarcastic
and that sarcasm is improper because it “can imply the
prosecutor’s opinion of the evidence, and convey to the jury the
notion that the government believes the defendant is guilty.” He
argues that the claim is preserved because the trial court “ruled on

20110204‐CA 8 2013 UT App 228
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the matters” and that, in any event, the misconduct may be
reviewed for plain error.

¶23 The State responds that Davis has failed to demonstrate
reversible error because he “does not argue that the trial court’s sua
sponte admonishments were improper or inadequate to remedy
any potential harm that may have stemmed from the comments.”
In response, Davis argues for the first time in his reply brief that
“the trial court should have ordered a mistrial rather than
repeatedly chastising the prosecutor.”

¶24 “Claims of prosecutorial misconduct are subject to the
preservation rule.” State v. Pedersen, 2010 UT App 38, ¶ 11, 227 P.3d
1264. This rule applies where the defense does not move for a
mistrial based on prosecutorial misconduct during trial, but argues
on appeal that the trial court erred by failing to declare a mistrial
sua sponte. Where a defendant has thus “not preserved his
prosecutorial misconduct claim, . . . our review is limited to a
determination of whether the court’s failure to sua sponte declare
a mistrial was plainly erroneous.” Id.3

¶25 Here, Davis did not object to the three comments noted
above. In two instances, however, the trial court intervened sua
sponte to correct the prosecutor. Accordingly, the only issue on
appeal is whether the trial court plainly erred in not also declaring
a mistrial. To demonstrate plain error, the defendant must show
that “(i) [a]n error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful.” State v. Dunn, 850 P.2d
1201, 1208 (Utah 1993).

¶26 We conclude that the trial court did not plainly err. We
agree with Davis that the prosecutor’s comments were
inappropriate—they expressed the prosecutor’s opinion of the

3. This application of the preservation rule demonstrates that,
notwithstanding that such claims allege “prosecutorial
misconduct,” on appeal, we review the conduct of the trial judge,
not the prosecutor.

20110204‐CA 9 2013 UT App 228
 State v. Davis

evidence and projected a disrespectful attitude toward Davis. We
commend the trial court for intervening to rein in the prosecutor.
However, Davis has not shown that the prosecutor’s sarcastic
statements were so obviously prejudicial as to require a mistrial.

¶27 Davis relies on three non‐Utah cases in support of his claim.
Two of those cases, both from Connecticut, held that the
prosecutorial sarcasm complained of in each case was not
sufficiently harmful to warrant reversal. See State v. Salamon, 949
A.2d 1092 (Conn. 2008); State v. Santiago, 850 A.2d 199 (Conn. 2004).
The third case cited by Davis, State v. Breit, did result in a reversal.
1996‐NMSC‐067, ¶ 49, 930 P.2d 792. That case involved “a trial out
of control,” where the prosecutor’s misconduct began “[b]arely into
his opening statement,” when he “attempted to inflame the jury
with allegations that were irrelevant, matters that could not
permissibly be presented as evidence, and exaggerated claims that
no evidence could ever support.” Id. ¶ 41 (alteration in original).
When objections were raised and sustained, “he expressed sarcasm
and scorn toward opposing counsel and the court.” Id. During the
questioning of witnesses he “engaged in improper arguments with
witnesses,” and “even after direct admonition from the court, he
attempted to solicit irrelevant comments from the defendant on the
testimony of other witnesses.” Id. ¶ 42. The prosecutor “directed
belligerent remarks at opposing counsel,” threatened her, and
referred to her sarcastically as “sweetheart.” Id. Throughout the
trial, he displayed “sarcasm, sneering, rolling of eyes and
exaggerated expressions.” Id. The prosecutorial misconduct was
“pervasive.” Id. It continued through the closing, even through the
rebuttal arguments, during which “the prosecutor made direct
appeals to the sympathies and prejudices of the jury, making
comments utterly irrelevant to the facts as they applied to the
elements of the alleged crime.” Id. ¶ 43. He “belittled the
defendant’s fundamental right to remain silent, and portrayed his
right to counsel as a ploy to avoid punishment.” Id. He repeatedly
suggested that opposing counsel had “engaged in perjury, lying,
and collaborating with the defendant to fabricate a defense.” Id.

20110204‐CA 10 2013 UT App 228
 State v. Davis

¶28 In sum, the Breit prosecutor’s misconduct was so
“unrelenting and pervasive” that the trial transcript could not
“convey the overall atmosphere of a trial infected by wordless
misconduct that would never appear in a court record.” Id. ¶ 45
(citation and internal quotation marks omitted). The trial judge
herself was critical of her own error in “permitting the trial to
continue long after the prosecutor’s uncontrollable intransigence
became apparent.” Id. ¶ 47. The trial judge concluded that the
prosecutor lacked “an underlying respect for our system of justice.”
Id. ¶ 48.

¶29 On appeal, the New Mexico Supreme Court stated, “The
unavoidable conclusion from such egregious misconduct, is that
the prosecutor was fully aware that his actions would deprive Breit
of his right to a fair trial.” Id. The prosecutor “unquestionably acted
with willful disregard of the resulting mistrial, retrial, or reversal.”
Id. (internal quotation marks omitted). Thus, “[t]he cumulative
effect was to deny the defendant a fair trial. A motion for a mistrial
was the only cure.” Id. ¶ 45.

¶30 Here, the prosecutor did not engage in a course of conduct
approaching the “unrelenting and pervasive” misconduct that
permeated the trial in Breit. Had she done so, we agree that the
misconduct may well have been so egregious as to require the trial
court to declare a mistrial sua sponte. As it is, however, the
prosecutorial misconduct in this case was minor and in two of the
three instances corrected on the spot. We readily conclude that the
trial court did not plainly err in not sua sponte declaring a mistrial.
Moreover, any misconduct was harmless beyond a reasonable
doubt.

2. Questioning Davis’s Truthfulness

¶31 Davis claims that the prosecutor’s comments on his
truthfulness were improper because “[a]sking a defendant whether
he lied, commenting on the veracity of the defendant, or calling the
defendant a liar is also misconduct.” Specifically, Davis testified
that, on the day after the incident, C.D. had asked him to bring one

20110204‐CA 11 2013 UT App 228
 State v. Davis

of her personal belongings to her workplace. The prosecutor
replied, “And that part you didn’t tell . . . the detective? There’s
quite a lot of things you didn’t tell the detective. You lied to the
detective when you said everything was great in your relationship,
didn’t you?” And after Davis testified as to the number of times he
and C.D. had had sex that weekend, the prosecutor asked him,
“And it’s not a lie that you were having sex three times a day for
that weekend?” Finally, when Davis testified about having had a
job until he suffered an injury, the prosecutor asked, “That’s not a
lie?”

¶32 Davis raises this claim under the doctrine of plain error.
Again, to demonstrate plain error, the defendant must show that
“(i) [a]n error exists; (ii) the error should have been obvious to the
trial court; and (iii) the error is harmful.” State v. Dunn, 850 P.2d
1201, 1208 (Utah 1993). “To establish that the error should have
been obvious to the trial court, [the appellant] must show that the
law governing the error was clear at the time the alleged error was
made.” State v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276. Thus, an error
is not obvious if “there is no settled appellate law to guide the trial
court.” State v. Ross, 951 P.2d 236, 239 (Utah Ct. App. 1997).

¶33 As stated above, Davis asserts that “[a]sking a defendant
whether he lied, commenting on the veracity of the defendant, or
calling the defendant a liar is . . . misconduct.” Davis cites State v.
Johnson, 2007 UT App 184, 163 P.3d 695, and several non‐Utah cases
in support of this assertion. However, in Johnson this court did not
hold or state that calling the defendant a liar constitutes
prosecutorial misconduct. We stated that “courts are split on
whether it is improper to characterize a defendant as a liar during
closing arguments.” Id. ¶ 45. We noted that “[s]ome jurisdictions
have held that such argument is improper,” but “[o]ther
jurisdictions disagree and have held that referring to testimony as
a lie is not per se prosecutorial misconduct.” Id. (citations and
internal quotation marks omitted). We resolved the issue on appeal
in Johnson by “assum[ing], without deciding, that the prosecutorʹs
statement that [the d]efendant was a liar was improper,” but
concluded that “no prejudice resulted from this error because the

20110204‐CA 12 2013 UT App 228
 State v. Davis

trial record is replete with [the d]efendantʹs inconsistent
statements.” Id. ¶ 46.

¶34 The following year, citing Johnson, we stated only that “it
may have been an error for the State to call [the defendant] a liar.”
State v. Otterson, 2008 UT App 139, ¶ 24, 184 P.3d 604 (emphasis
added) (citing Johnson, 2007 UT App 184, ¶¶ 42–46). And last year,
in a case decided after Davis’s opening brief was filed, we held that
a prosecutor’s statement “that [the d]efendant, in a telephone call
from jail, had lied to [his girlfriend] about whether he remembered
what happened” “did not constitute misconduct.” State v. Lebeau,
2012 UT App 235, ¶¶ 9, 20, 286 P.3d 1.

¶35 To be clear, “the evil to be guarded against” in such cases is
that “a juror would consider [such] statements to be factual
testimony from the prosecutor.” State v. Lafferty, 749 P.2d 1239, 1256
(Utah 1988). Consequently, “a prosecutor engages in misconduct
when he or she expresses personal opinion or asserts personal
knowledge of the facts.” State v. Bakalov, 1999 UT 45, ¶ 57.
“However, a prosecutor may draw permissible deductions from
the evidence and make assertions about what the jury may
reasonably conclude from those deductions.” Id.

¶36 Here, while Davis complains that the prosecutor called him
a liar, he has not undertaken to show that a juror would consider
the statement to be factual testimony from the prosecutor rather
than permissible deductions from the evidence. Consequently, he
has not demonstrated that it should have been obvious to the trial
court that it was required to intervene. Furthermore, we conclude
that any error was harmless beyond a reasonable doubt.

3. Asking Davis Whether Another Witness Had Lied

¶37 Davis also claims that the prosecutor should not have asked
him to comment on another witness’s testimony. In cross‐
examining Davis, the prosecutor asked Davis whether the store
clerk’s testimony was a lie. Specifically, the prosecutor asked
whether the dildo he bought “had no clitoral stimulator.” Davis

20110204‐CA 13 2013 UT App 228
 State v. Davis

replied that it did have a clitoral stimulator, that the store clerk had
described it to him as having one, and that the store clerk had
demonstrated the feature. The prosecutor then asked, “[W]hen [the
store clerk] testified earlier . . . that [it] did not have a clitoral
stimulator, she was lying?” Defense counsel objected, but the trial
court overruled the objection, saying the prosecutor could “ask him
if he heard that.” (Emphasis added.) Davis again stated that the clerk
had told him that the dildo vibrated and demonstrated it.

¶38 Asking a defendant to comment on the veracity of another
witness is improper. Such a question is argumentative and seeks
information beyond the defendant’s competence. State v. Emmett,
839 P.2d 781, 787 (Utah 1992). “The prejudicial effect of such a
question lies in the fact that it suggests to the jury that a witness is
committing perjury even though there are other explanations for
the inconsistency.” Id. Moreover, “it puts the defendant in the
untenable position of commenting on the character and
motivations of another witness,” whom the jury may find
sympathetic. Id. Nonetheless, we will not reverse when no
prejudice results. See State v. Stevenson, 884 P.2d 1287, 1291 (Utah
Ct. App. 1994).

¶39 The prosecutor should not have asked Davis whether the
store clerk was lying. However, the trial court reframed the
question as a request for Davis to repeat his own account of the
disputed conversation without speculating on why his account
differed from that of the store clerk. Davis followed the trial court’s
guidance and did not comment on whether the store clerk was
lying. Accordingly, Davis did not speculate beyond his competence
and did not comment “on the character and motivations of another
witness.” Emmett, 839 P.2d 781, 787. Moreover, neither the
prosecutor’s question (as reframed by the court) nor Davis’s
answer suggested “to the jury that a witness [was] committing
perjury.” Id. Rather, they merely highlighted that a discrepancy
existed. Consequently, viewed in isolation or in combination with
the previous allegations of prosecutorial misconduct, we conclude
that any misconduct here was either cured or harmless beyond a
reasonable doubt.

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 State v. Davis

B. Closing Arguments

¶40 Davis contends that several of the prosecutor’s statements
in closing constituted prosecutorial misconduct. But Davis did not
raise a timely objection to some of these statements. We “generally
will not examine the State’s closing argument if the defendant
failed to timely object to it.” State v. Nelson‐Waggoner, 2004 UT 29,
¶ 30, 94 P.3d 186. And we are hesitant to “require a trial judge to
intervene in closing argument whenever the judge believes a
misstatement of the evidence by counsel has occurred.” State v.
Palmer, 860 P.2d 339, 344 (Utah Ct. App. 1993). Moreover, “[t]he
failure of defense counsel to object to statements made by a
prosecutor during the closing is a matter to which we attach
significance.” Commonwealth v. Leach, 901 N.E.2d 708, 717 (Mass.
App. Ct. 2009). “In the vast majority of instances, failure to object
to such a misstatement will be deemed a waiver of the error.”
Palmer, 860 P.2d at 344.

¶41 Nevertheless, we may review prosecutorial misconduct for
plain error. See State v. Ross, 2007 UT 89, ¶ 53, 174 P.3d 628. Where
a comment by a prosecutor in closing draws no objection, then, the
question before us is whether it was “plain error for the trial court
not to have intervened.” Id. ¶ 58.

1. Reasonable Doubt Standard

¶42 Davis asserts that the prosecutor misstated the reasonable
doubt standard. During her closing rebuttal argument, the
prosecutor stated, “What is reasonable doubt? . . . It’s not beyond
a shadow of a doubt. . . . So when you go back there and you say,
I know he did it, but—no, no, no. Once you say, I know he did it,
you’re firmly convinced.” Davis suggests that this comment “told
the jury that rather than assessing whether the State had proved
each element beyond a reasonable doubt, it could convict if it
instinctively or intuitively knew that the defendant had committed
the crime.”

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 State v. Davis

¶43 Misstating the reasonable doubt standard can be
prosecutorial misconduct. State v. Dunn, 850 P.2d 1201, 1223–24
(Utah 1993). However, curative jury instructions may render the
misstatement harmless. Id. at 1224–25.

¶44 Here, the prosecutor’s statement elicited an immediate
objection from defense counsel. The court responded that it would
“direct the jury to look at the instruction.” The prosecutor also
asked the jury to “[p]lease look at that instruction.” Instruction 41,
unchallenged at trial or on appeal, states that the reasonable doubt
standard “does not require proof that overcomes every possible
doubt.” It instructs the jury that “If, based on your consideration of
the evidence, you are firmly convinced that the defendant is guilty
of the crimes charged, you must find the defendant guilty.”4

¶45 We conclude that to the extent the prosecutor’s statement of
the reasonable doubt standard was erroneous, any prejudicial
effect was neutralized by the judge’s direction to the jury, echoed
by the prosecutor, to follow the reasonable doubt instruction. See
Dunn, 850 P.2d at 1225.

2. Prosecutor’s Previous Experience

¶46 Davis next contends that the prosecutor improperly
discussed what other defendants typically claim. Davis argues that
this statement was based on information that was not admitted into
evidence and that this discussion was “irrelevant and unduly
prejudicial since anecdotal statistical evidence as to what
defendants usually do has no bearing on whether this particular
defendant did the same thing.”

4. Instruction 41 is a standardized instruction prepared by the
Federal Judicial Center and expressly authorized by the Utah
Supreme Court. See State v. Reyes, 2005 UT 33, ¶¶ 37–38, 116 P.3d
305. It has also “enjoyed a positive reception,” id. ¶ 38 & n.2,
following its quotation and advocation by Justice Ruth Bader
Ginsburg, Victor v. Nebraska, 511 U.S. 1, 26–27 (1994) (Ginsburg, J.,
concurring in part and concurring in the judgment).

20110204‐CA 16 2013 UT App 228
 State v. Davis

¶47 In closing, the prosecutor stated that she “ha[d] yet to see a
defendant in a case of this nature who concedes the issue of
consent.” The statement drew no objection. Accordingly, the
question before us is whether it was “plain error for the trial court
not to have intervened.” See State v. Ross, 2007 UT 89, ¶ 58, 174 P.3d
628.

¶48 The State admits that “the prosecutor’s experience in other
cases was not a fact in evidence.” However, the State argues that,
read in context, the prosecutor’s statement was innocuous because
it “did not refer to the kind of extra‐record experience that might
improperly sway the jury’s verdict.” Indeed, the transcript strongly
suggests that the prosecutor was explaining why the next topic in
her closing argument was lack of consent:

In my experience doing these cases, I have yet to see
a defendant in a case of this nature who concedes the
issue of consent. That is an issue that comes up in a
case like this. So what do we have to do? We have to
look at the evidence. . . . Now, you get to judge that
evidence, and . . . you’ve been given an instruction
earlier that you’ll have in your packet that talks
about what to consider in evaluating.

The prosecutor then went on to remind the jury of the evidence
introduced at trial that tended to support the State’s claim that C.D.
had not consented.

¶49 The prosecutor did not use her statement about her
experience to bolster the State’s argument on any issue before the
jury or as evidence of what defendants usually do. Like the
statement, “[I]t’s rare that you get a murder with eyewitnesses”—
found unobjectionable in State v. Cummins, 839 P.2d 848, 854 n.12
(Utah Ct. App. 1992)—the prosecutor’s statement here was “a
self‐evident proposition well within the common understanding of

20110204‐CA 17 2013 UT App 228
 State v. Davis

lay jurors.” Id.5 And, after the statement, she reminded the jury that
their decision must be based on the evidence introduced at trial.

¶50 In sum, Davis has not demonstrated that the prosecutor’s
comment was so likely to prejudice the jury that it was “plain error
for the trial court not to have intervened.” State v. Ross, 2007 UT 89,
¶ 58, 174 P.3d 628. We also do not ascribe any prejudicial effect to
the challenged comment.

3. Burden‐Shifting

¶51 Davis also contends that the prosecutor’s closing argument
was improper because “she . . . suggest[ed that Davis] was guilty
because he had not established a reason for [C.D.] to lie, thereby
giving the false impression that the jury must convict if [Davis] had
not established a reason for [C.D.] to falsely accuse him.”

¶52 Here, Davis contends that the prosecutor misstated the law
when she argued in closing that the defense had offered no reason
for C.D. to have concocted the criminal accusations:

People don’t just wake up in the morning and say
rape. We don’t do that. He’s right. While he doesn’t
have to show a motive or anything of that nature, it’s
common sense. You just have to have a reason. Did
you hear anything about any reason for [C.D.] to
make this up? Nothing was offered. Nothing was
offered. Nothing was in evidence. Wild speculations
that were just reiterated without any support,
without any background. She wasn’t even asked
about that motive.

5. Convictions for object rape and forcible sodomy both require
that the victim did not consent. See Utah Code Ann. §§ 76‐5‐402.2,
‐403(2) (LexisNexis 2012). That defendants on trial for these crimes
rarely concede the issue of consent likely falls “within the general
realm of human experience and common sense.” See State v.
Pearson, 943 P.2d 1347, 1353 (Utah 1997).

20110204‐CA 18 2013 UT App 228
 State v. Davis

Later in the prosecutor’s closing argument, she suggested that
Davis could not find a motive for C.D. to falsely accuse him and
that “[h]e doesn’t have anything in light of all the things [the
prosecutors] have.” Davis argues that the aggregate effect of these
comments was to shift to Davis the burden of proof on the issue of
consent.

¶53 Although Davis sought a mistrial based on another
statement of the prosecutor, this statement drew no objection at
trial. Accordingly, the question before us is whether it was “plain
error for the trial court not to have intervened.” Ross, 2007 UT 89,
¶ 58. An error is not obvious—and thus ordinarily not plain—if
“there is no settled appellate law to guide the trial court.” State v.
Ross, 951 P.2d 236, 239 (Utah Ct. App. 1997).

¶54 Claims that the prosecutor’s argument shifted the burden of
proof rarely succeed.6 In support of his claim, Davis relies on one
Utah case, State v. Haston (Haston I), 811 P.2d 929 (Utah Ct. App.
1991), rev’d, 846 P.2d 1276 (Utah 1993) (per curiam). In that opinion,
we affirmed the defendant’s conviction and held that there was no
reasonable likelihood that the jurors were influenced by a

6. See, e.g., State v. Maestas, 2012 UT 46, ¶ 168, 299 P.3d 892
(rejecting a claim that the prosecutor’s assertion that the defendant
could have commissioned an independent DNA test shifted the
burden of proof); State v. Tabesh, 2005 UT App 353U, para. 8 (per
curiam) (rejecting a claim that the prosecutor’s implication that the
defendant could have supplied additional receipts shifted the
burden of proof); State v. Tilt, 2004 UT App 395, ¶¶ 17 n.2, 18, 101
P.3d 838 (rejecting a claim that the prosecutor’s statement that
“there was no explanation as to how” a child’s death could have
been an accident shifted the burden of proof); State v. Spinks, 2003
UT App 182U, para. 7 (rejecting a claim that the prosecutor’s
assertion that the defendant had not adduced sufficient evidence
to support his defense theory shifted the burden of proof); State v.
Bowman, 945 P.2d 153, 157 (Utah Ct. App. 1997) (rejecting a claim
that the prosecutor’s comment on the defendant’s failure to call a
supposedly key witness shifted the burden of proof).

20110204‐CA 19 2013 UT App 228
 State v. Davis

prosecutor’s legally incorrect assertion that a voluntary intoxication
defense did not apply to attempted depraved indifference murder.
Id. at 934–45. We also recognized the indubitable rule that “[t]he
burden remains on the state throughout the trial to prove each
element of the charged offense beyond a reasonable doubt. At no
point does any segment of that burden shift to the defendant.” Id.
at 934. However, the Utah Supreme Court reversed our decision
and vacated the defendant’s conviction on the ground that Utah
does not recognize the crime of attempted depraved indifference
murder. See State v. Haston (Haston II), 846 P.2d 1276, 1277 (Utah
1993) (per curiam) (citing State v. Vigil, 842 P.2d 843 (Utah 1992)).
We see nothing in either Haston I or Haston II to suggest that the
trial court here should have intervened to declare a mistrial based
on the argument now raised on appeal.

¶55 “In the criminal justice system, a defendant is presumed
innocent and the prosecution must prove guilt beyond a reasonable
doubt.” State v. Maestas, 2012 UT 46, ¶ 167, 299 P.3d 892 (citations
omitted). “But it is not improper for the prosecution to argue the
case based on the total picture shown by the evidence or the lack
thereof or to fully discuss from [its] perspective[] the evidence and
all inferences and deductions it supports.” Id. (emphasis added;
other alterations in original) (citation and internal quotation marks
omitted). “Thus, in determining whether the prosecution’s
comments improperly shifted the burden of proof to a defendant,
we must assess the comment in context of the arguments advanced
by both sides as well as in context of all the evidence.” Id. (citation
and internal quotation marks omitted). A prosecutor’s remark that
was “prompted by” a defendant’s claim or that “simply countered
the defendant’s arguments” does not shift the burden of proof. Id.
¶ 168.

¶56 In addition, so long as the prosecutor makes no remarks that
“can fairly be characterized as an overt reference to a defendant’s
failure to testify,” the prosecutor is “free to highlight an overall
shortfall of defense evidence.” State v. Nelson‐Waggoner, 2004 UT
29, ¶¶ 31, 33, 94 P.3d 186. Thus, statements such as “[N]o one has
told you where the defendant was or what he was doing on the

20110204‐CA 20 2013 UT App 228
 State v. Davis

17th,” and “[T]he defendant’s brother and his two good friends
took the stand, they were here available, and not once did they
dispute [the State’s] evidence” are permissible. Id. ¶ 32 (ellipses
and internal quotation marks omitted).

¶57 Indeed, we have approved statements virtually identical to
those at issue here against a challenge that they constituted a
comment on the defendant’s silence. See State v. Nguyen, 2011 UT
App 2, ¶ 28, 246 P.3d 535, (rejecting a challenge to the prosecutor’s
comments including, “Not a single motivation has been raised to
show why she would possibly lie in these circumstances”; “There
is the complete absence of any evidence of coaching”; and “[There
is a c]omplete lack of any evidence of any motivation to lie in this
case”), aff’d 2012 UT 80, 293 P.2d 236.

¶58 Here, the prosecutor’s comments responded directly to
testimony given by Davis under cross‐examination. He agreed that
he had called his family and asked them to drive by C.D.’s house
and get a picture of another man’s car in order to demonstrate a
motive because he “was still trying to figure out why [she] would
accuse [him] of rape.” The prosecutor’s statement—“Did you hear
anything about any reason for [C.D.] to make this up? Nothing was
offered. Nothing was offered. Nothing was in evidence”—
responded to this testimony. We conclude that the purpose and
effect of the challenged comments was merely to stress the paucity
of evidence to support a defense theory, not to shift the burden of
persuasion onto the defense. Accordingly, the trial court did not
commit plain error by not intervening.

4. Inference of a False Defense

¶59 Davis further asserts that the prosecutor’s closing argument
denigrated the defense by suggesting that Davis “was making up
a defense because he had nothing else to work with.” Specifically,
he objects to the prosecutor’s characterization of his thoughts as, “I
don’t know of a guy that she’s seeing, cause there hasn’t been one.
But let me just see if I can get lucky, because I have got to get a
defense going. I’ve got nothing.”

20110204‐CA 21 2013 UT App 228
 State v. Davis

¶60 Again, the statement challenged on appeal drew no
objection at trial, restricting our analysis to a plain error review; i.e.,
whether it was “plain error for the trial court not to have
intervened.” State v. Ross, 2007 UT 89, ¶ 58, 174 P.3d 628. Our first
question, then, is whether there was “settled appellate law to guide
the trial court.” State v. Ross, 951 P.2d 236, 239 (Utah Ct. App. 1997).
An appellant “must show that the law governing the error was
clear at the time the alleged error was made.” State v. Dean, 2004
UT 63, ¶ 16, 95 P.3d 276.

¶61 Davis does not cite any Utah rule specifically addressing the
extent to which a prosecutor may imply that a defense is made up.7
Instead, he relies primarily on cases from other states. See State v.
Elnicki, 105 P.3d 1222, 1233 (Kan. 2005) (stating that it was error for
a prosecutor to refer to a defendant’s statements using “terms such
as ‘yarn,’ ‘fairy tale,’ ‘fabrication,’ ‘tall tale,’ and ‘spin’”); State v.
Hoppe, 641 N.W.2d 315, 320–21 (Minn. Ct. App. 2002) (noting that
a “prosecutor may specifically argue that there was no merit to the
defense,” but is “not allowed to belittle the defense” (citation and
internal quotation marks omitted)); People v. Nunez, 426 N.Y.S.2d
2, 4 (App. Div. 1980) (reversing a conviction on the grounds that
the defendant was cross‐examined about her post‐arrest silence
and explaining that this error was “exacerbated” by the
prosecutor’s closing argument, which stated that “the defense was
‘a lie,’ ‘made up,’ [and] ‘cooked up’”).

¶62 Here, the prosecutor’s comment was not so direct or
inflammatory as to fall within the purview of these cases or
relevant Utah precedents. See, e.g., State v. Cummins, 839 P.2d 848
(Utah 1992); State v. Campos, 2013 UT App 213, 309 P.3d 1160, 2013
WL 4632534. Accordingly, no plain error occurred.

7. He does cite several Utah cases for more general propositions.
State v. Todd reiterated that a prosecutor may not invoke the
passions of the jury or refer to matters not in evidence. 2007 UT
App 349, ¶¶ 19–24, 173 P.3d 170. State v. Havatone likewise dealt
with reference to matters not in evidence. 2008 UT 133, ¶ 16, 183
P.3d 257.

20110204‐CA 22 2013 UT App 228
 State v. Davis

II. Evidentiary Error

¶63 Davis next contends that the trial court admitted irrelevant
and prejudicial evidence. Specifically, Davis points to evidence
regarding a protective order and precautionary measures taken by
C.D.’s workplace in response to the protective order. He argues
that this “evidence was irrelevant and unduly prejudicial in
violation of” rules 402 and 403 of the Utah Rules of Evidence. Davis
further argues that none “of the conditions which allow admission
under Utah Rule of Evidence 404(b) [were] present.”

¶64 The trial court allowed, for a limited purpose, testimony by
C.D.’s supervisor (Supervisor) that C.D. informed Supervisor of a
protective order C.D. had obtained against Davis:

[Prosecutor:] You testified that she did come and
give you a protect—you said something about a
protective order? What do you mean?

[Supervisor:] She filed—

[Defense counsel:] Objection, relevance.

[Prosecutor:] Your Honor, the relevance is that
employment—the safety precautions pursuant to
that protective order meaning they took it seriously,
and she should be able to—

The Court: For that limited purpose, I will overrule
the objection, but I don’t want to hear any more
about it.

[Prosecutor:] Okay. What happened?

[Supervisor:] She presented me with a protective
order against [Davis].

20110204‐CA 23 2013 UT App 228
 State v. Davis

The prosecutor then attempted to follow up with a question about
what Supervisor did in response to receiving the protective order.
Defense counsel objected and the court sustained the objection,
summarizing the admitted testimony as, “She received a protective
order, and it was presented to her employment . . . period.” The
prosecutor then asked “what safety precautions the workplace
took.” Supervisor described these precautions in detail before the
court interrupted to limit her response to the general fact that
precautions were taken:

[Supervisor:] I contacted my director and legal
counsel for the [workplace] and asked them what I
could do to protect [the workplace]. So we did
a—received pictures of [Davis] so that my front desk
staff would know if he entered the building. They
were to push the panic button which rings directly to
the police station [nearby] if he were to enter the
building. We also talked to all staff that rotate
through my front desk to make sure that—

The Court: Okay. We’re going further than the
Court’s going to allow. . . . We can indicate that they
received a copy of the protective order and they took
precautions.

A. Protective Order

¶65 Davis first challenges admission of Supervisor’s statement,
“She presented me with a protective order against [Davis].” He
argues that this testimony was admitted in violation of rules 402,
403, and 404(b) of the Utah Rules of Evidence.

1. Rule 402

¶66 Irrelevant evidence is inadmissible. Utah R. Evid. 402.
Evidence is relevant if it has any tendency to make the existence of
any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the

20110204‐CA 24 2013 UT App 228
 State v. Davis

evidence. Id. R. 401. “In other words, even evidence that is only
slightly probative in value is relevant.” State v. Martin, 2002 UT 34,
¶ 31, 44 P.3d 805. Thus, “the standard for determining the
relevancy of evidence is very low, and even evidence with the
slightest probative value is relevant.” Id. ¶ 34 (citations and internal
quotation marks omitted).

¶67 “A trial court has broad discretion in deciding whether
evidence is relevant, and we review a trial court’s relevance
determination for abuse of discretion.” State v. Fedorowicz, 2002 UT
67, ¶ 32, 52 P.3d 1194. “We will find that a trial court has abused its
discretion only if the trial court’s decision was beyond the limits of
reasonability.” State v. Arguelles, 2003 UT 1, ¶ 101, 63 P.3d 731
(citation and internal quotation marks omitted).

¶68 Davis maintains that the “fact [that C.D.] had obtained a
protective order did not make it any more or less likely that [she]
had consented to the sexual activity at issue.” The State responds
that “evidence that [C.D.] obtained a protective order after the
sexual encounter tended to show that she now feared [Davis]
because the encounter was not the consensual experience that he
described.”

¶69 We conclude that it was not beyond the limits of
reasonability for the trial court to conclude that the protective order
evidence was relevant. The fact that C.D. went to the trouble of
obtaining the protective order and was willing to reveal it to her
colleagues tends to make C.D.’s account—that the encounter was
non‐consensual— marginally more probable. Therefore, because
the existence and disclosure of the protective order had a
“tendency to make a fact [of consequence] more or less probable,”
Utah R. Evid. 401, the trial court’s determination that testimony
about C.D. presenting a copy of her protective order to Supervisor
was relevant was within the “broad discretion [afforded to the trial
court] in deciding whether evidence is relevant,” see Fedorowicz,
2002 UT 67, ¶ 32.

20110204‐CA 25 2013 UT App 228
 State v. Davis

2. Rule 403

¶70 Davis next contends that because “any probative value of
the evidence was outweighed by its prejudicial effect,” the
challenged evidence should have been excluded under rule 403 of
the Utah Rules of Evidence. Davis argues that evidence of the
protective order was prejudicial because it was “likely to rouse the
jury to overmastering hostility since it depicted [Davis] as a
dangerous and violent person whose presence would require
police intervention, while also painting [C.D.] as an abused victim
who was being sought out by a dangerous and violent [Davis], and
someone who needed police protection.”

¶71 Relevant evidence may be excluded under rule 403 “if its
probative value is substantially outweighed by a danger
of . . . unfair prejudice.” Utah R. Evid. 403. “Evidence is unfairly
prejudicial ‘only when it poses a danger of rousing the jury to
overmastering hostility.’” State v. Maestas, 2012 UT 46, ¶ 138, 299
P.3d 892 (brackets omitted) (quoting State v. Killpack, 2008 UT 49,
¶ 53, 191 P.3d 17).

¶72 Davis objected below only on relevance grounds, signaling
his view that the evidence lacked any probative value. But rule 403
expressly permits the trial court to exclude relevant evidence. See
Utah R. Evid. 403. Accordingly, a relevance objection does not
preserve a claim that the evidence, even if relevant, should be
excluded because its probative value is substantially outweighed
by the danger of unfair prejudice. We therefore review this
challenge under the plain error standard, which Davis argues in the
alternative. See State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993).
Consequently, the question before us is whether it was “plain error
for the trial court not to have intervened,” State v. Ross, 2007 UT 89,
¶ 58, 174 P.3d 628, and not to have sua sponte conducted a rule 403
analysis.

¶73 For reasons explained below in connection with the
precautionary measures testimony, which we agree was
erroneously admitted, see infra ¶ 79, we conclude that Supervisor’s

20110204‐CA 26 2013 UT App 228
 State v. Davis

mention of the protective order was not so inflammatory as to
require the trial court to sua sponte conduct a rule 403 weighing
and further to rule that the danger of unfair prejudice substantially
outweighed the testimony’s probative value. Moreover, for the
reasons explained below in connection with the testimony
concerning precautionary measures, see infra ¶¶ 77–84, even if
admission of the reference to the protective order was erroneous,
“‘we conclude there is no reasonable likelihood that the error
affected the outcome of the proceedings.’” State v. Hamilton, 827
P.3d 232, 240 (Utah 1992) (quoting State v. Verde, 770 P.2d 116, 120
(Utah 1989)) (holding that even if the evidence’s danger of unfair
prejudice substantially outweighed its probative value, its
admission was harmless).

3. Rule 404(b)

¶74 Davis further argues that the trial court should have
excluded the protective order testimony under rule 404(b) of the
Utah Rules of Evidence. He maintains that none “of the conditions
which allow admission under [rule] 404(b) [were] present.” Rule
404(b) governs the admissibility of evidence of a defendant’s other
crimes, wrongs, or acts. Id. “Rule 404(b) forbids the use of other bad
acts to prove the character of the defendant and to show the
defendant acted in conformity with his character.” United States v.
Gorman, 312 F.3d 1159, 1162 (10th Cir. 2002) (referring to the
analogous federal rule). “‘Other bad acts’ means acts that are not
part of the events giving rise to the present charges.” Id.

¶75 This claim is unpreserved because, at trial, Davis did not
raise a rule 404(b) objection to the testimony. Thus, as explained
above, the question before us is whether it was “plain error for the
trial court not to have intervened,” Ross, 2007 UT 89, ¶ 58, and not
to have sua sponte excluded this evidence on rule 404(b) grounds.

¶76 Nothing in Supervisor’s testimony suggested that the
protective order arose from “other acts,” that is, “acts that [were]
not part of the events giving rise to the present charges.” Gorman,
312 F.3d at 1162. Accordingly, it would not have been obvious to

20110204‐CA 27 2013 UT App 228
 State v. Davis

the trial court that it needed to intervene under rule 404(b). And in
any event, we have concluded that admission of the testimony was
harmless. Thus, no plain error occurred.

B. Precautionary Measures

¶77 Davis also challenges admission of Supervisor’s description
of the precautionary measures taken at C.D.’s workplace in
response to her informing Supervisor of the protective order.

¶78 Davis maintains that Supervisor’s testimony about the
precautionary measures was irrelevant because the fact that C.D.’s
“place of work instituted precautions to protect her—did not make
it any more or less likely that [she] had consented to the sexual
activity at issue.” The State responds that “[a]s with evidence of the
protective order, the workplace precaution evidence was relevant
to show that after the sexual encounter [C.D.] truly feared [Davis
and] that the sexual encounter was therefore not consensual.”

¶79 We agree with Davis that evidence of the workplace
precautionary measures was erroneously admitted. Any possible
relevance lay in the fact that Supervisor may have believed C.D.’s
story—in other words, it constituted improper bolstering.8 The trial
court seems to have recognized as much when it initially cut off the
precautions testimony and limited the testimony to the fact that
C.D.’s workplace “received a copy of the protective order and they
took precautions.” Accordingly, admitting the precautions
testimony into evidence over a relevance objection was not within
the “broad discretion [afforded to a trial court] in deciding whether

8. Jurors may also have inferred that C.D.’s employer had a policy
to implement precautionary measures whenever an employee
obtained a protective order, whether or not any supervisor
believed the order was factually supportable. Indeed, an employer
might well take precautions upon receipt of any protective order
lest liability attach to inaction. In fact, Supervisor here
implemented the measures only after consultation with legal
counsel.

20110204‐CA 28 2013 UT App 228
 State v. Davis

evidence is relevant.” State v. Fedorowicz, 2002 UT 67, ¶ 32, 52 P.3d
1194.

¶80 Despite our conclusion that the testimony concerning
precautionary measures was erroneously admitted, we will not
overturn a jury verdict “if the admission of the evidence did not
reasonably affect the likelihood of a different verdict.” See State v.
High, 2012 UT App 180, ¶ 50, 282 P.3d 1046 (brackets, citation, and
internal quotation marks omitted).

¶81 We recognize “that this is not a case where the evidence of
guilt was overwhelming.” Id. Nevertheless, any facts the jury could
reasonably have inferred from the existence of the protective order
and the ensuing precautions were presented to the jury directly in
other testimony. For example, Davis argues that the jury may have
inferred from Supervisor’s willingness to implement precautionary
measures that Davis was “dangerous and violent.” But the jury
heard C.D.’s own graphic testimony describing forcible sodomy
and object rape. In addition, Nurse, who examined C.D., described
C.D.’s injuries in detail. She testified that they were unusual,
consistent with “a lot of force,” and “consistent with her story of
the object that was used,” because bruises appeared “higher than
[an examining nurse] would normally see.”9 C.D. testified that
Davis caused those injuries. The police officer who escorted C.D.
to the hospital testified that he did so “because she was afraid,”
and one of the two police officers who protected C.D. while she
was retrieving her belongings testified that “she seemed scared
throughout.”

¶82 Given the detailed evidence presented that Davis was
dangerous and violent, the bolstering effect of the precautions

9. Davis maintains that while C.D. “experienced bruises, redness
and tenderness, . . . they were consistent with consensual sex.” In
fact, Nurse testified only that “[y]ou can have consensual sex with
injury.” She was not asked whether C.D.’s injuries in particular
were consistent with consensual sex. Davis points to no other
evidence in the record to support his argument.

20110204‐CA 29 2013 UT App 228
 State v. Davis

testimony was not prejudicial. Moreover, “[w]hen Utah appellate
courts reverse for improper bolstering, they usually do so not only
where a case hinges on an alleged victim’s credibility and there is
no physical evidence, but also where the bolstering was done by an
expert witness.” State v. King, 2010 UT App 396, ¶ 46, 248 P.3d 984
(citation omitted). Here, as noted above, the State presented
physical evidence and the bolstering was not done by an expert
witness. The jury had no reason to think that Supervisor had any
special expertise in judging credibility.

¶83 In addition, the State did not refer to the precautions
testimony in closing, and the improper evidence is confined to ten
lines of testimony over a three‐day trial consuming over 500
transcript pages. See High, 2012 UT App 180, ¶ 53 (stating that our
confidence in a jury’s verdict was not undermined where improper
evidence was “contained in seventeen lines of testimony over a
two‐day trial with over 400 pages of transcript”).

¶84 In sum, we conclude that admission of the precautionary
measures testimony was erroneous but “did not reasonably affect
the likelihood of a different verdict.” High, 2012 UT App 180, ¶ 50
(brackets, citation, and internal quotation marks omitted). Our
conclusion that the precautionary measures testimony was
erroneously but harmlessly admitted under rule 402 effectively
disposes of Davis’s challenges to the same evidence under rules 403
and 404(b).

III. Jury Instruction

A. Adequacy of the Record

¶85 Davis next contends that the “trial court’s failure to follow
required procedure for responding to jury notes violated
constitutional protections and the rules of criminal procedure.” He
argues that the trial court violated his “right to a record of
sufficient completeness to permit proper consideration of [his]
claims” when it failed to preserve notes from the jury and the
court’s responses.

20110204‐CA 30 2013 UT App 228
 State v. Davis

¶86 Rule 17(n) of the Utah Rules of Criminal Procedure specifies
that a court must follow one of two courses of action upon
receiving a question of law from the jury. The court may “direct
that the jury be brought before the court where, in the presence of
the defendant and both counsel, the court shall respond to the
inquiry or advise the jury that no further instructions shall be
given.” Utah R. Crim. P. 17(n). “Such response shall be recorded.”
Id. Alternatively, the court has discretion to “respond to the inquiry
in writing without having the jury brought before the court, in
which case the inquiry and the response thereto shall be entered in
the record.” Id.

¶87 Here, the jury submitted two questions to the trial court
during deliberations, and the court chose to respond in writing.
Defense counsel objected to one of these responses and, after the
jury returned its verdict, made a record of the objection:

[Defense counsel:] [A]ctually, two questions were
asked [by] the jury during their deliberations. The
first question we all agreed on the answer that was
provided to them by the Court having to do with
police reports. The second question had to do with—
I believe the question was, if someone files a charge,
is the prosecution then obligated to file a case?
Something along those lines.

The Court: Yes.

[Defense counsel:] And then . . . there was a
telephone conference about it with—or a conference.
[Co‐counsel] and I participated in that conference via
telephone. [The prosecutors] were present in your
office when that occurred. We objected to the answer
that was provided to the jury, and it went into the
jury room . . . . [I]t would have been our suggestion
that basically they just . . . review their jury
instructions, along those lines.

20110204‐CA 31 2013 UT App 228
 State v. Davis

Although the trial court indicated that it would preserve the
questions and responses, it apparently did not do so. Davis’s
appellate counsel filed a motion to supplement the record with the
notes and responses. But a clerk for the trial court responded that
the court did “not have those requested items” and that the
“Judge’s Notes are confidential and are not a part of the record.”

¶88 “Due process ‘requires that there be a record adequate to
review specific claims of error already raised.’” West Valley City v.
Roberts, 1999 UT App 358, ¶ 11, 993 P.2d 252 (quoting State v.
Russell, 917 P.2d 557, 559 (Utah Ct. App. 1996)). Moreover, rule
17(n) of the Utah Rules of Appellate Procedure explicitly states that
when the court responds to a jury inquiry “in writing without
having the jury brought before the court,” the court’s response
“shall be entered in the record.” Utah R. Crim. P. 17(n).
Accordingly, the trial court erred in not entering the note into the
record.

¶89 However, applicable rules also dictate how to proceed “[i]f
no report of the evidence or proceedings at a hearing or trial was
made, or if a transcript is unavailable.” Utah R. App. P. 11(g). For
example, “[i]f anything material to either party is omitted from the
record by error or accident or is misstated, the parties by
stipulation, the trial court, or the appellate court, either before or
after the record is transmitted, may direct that the omission or
misstatement be corrected and if necessary that a supplemental
record be certified and transmitted.” Id. R. 11(h). Rule 11(h)
“provides a reliable method for the reconstruction of events when
the record has failed in some limited respect.” Olsen v. Park‐Craig‐
Olsen, Inc., 815 P.2d 1356, 1359 (Utah Ct. App. 1991).

¶90 Consequently, “lack of an adequate record constitutes a
basis for remand and a new hearing only where: (1) the absence or
incompleteness of the record prejudices the appellant; (2) the
record cannot be satisfactorily reconstructed (i.e., by affidavits or
other documentary evidence); and, (3) the appellant timely
requests the relevant portion of the record.” Roberts, 1999 UT App
358, ¶ 11 (emphasis omitted).

20110204‐CA 32 2013 UT App 228
 State v. Davis

¶91 Here, Davis asserts that he “moved to supplement the
record with the notes from the jury, the judge’s response, and a
transcript of the telephone call regarding the notes, but none of
those had been preserved below.” The State responds that merely
requesting that the note be added to the record is not enough;
Davis must show that the record cannot be satisfactorily
reconstructed by affidavits or other means. See id. Davis counters
that imposing this burden on him “would make the mandatory
requirement of Rule 17(n) meaningless.”

¶92 The rules are clear on this point. Rule 17(n) requires the trial
court to enter into the record its response to a jury inquiry. Utah R.
Crim. P. 17(n). But rule 11(h) of the Utah Rules of Appellate
Procedure provides a mechanism for a party to reconstruct the
record, if possible, if anything material “is omitted from the record
by error or accident,” as was the case here. This approach is
consistent with our statement in West Valley City v. Roberts that
“lack of an adequate record constitutes a basis for remand and a
new hearing only where . . . the record cannot be satisfactorily
reconstructed.” 1999 UT App 358, ¶ 11, 993 P.2d 252. And the
statement in Roberts is in keeping with the general rule that
“[a]ppellants bear the burden of proof with respect to their appeals,
including the burdens attending the preservation and presentation
of the record.” State v. Litherland, 2000 UT 76, ¶ 17, 12 P.3d 92.

¶93 Davis contends that Roberts supports his position. In that
case, West Valley City’s own ordinances required it to record an
administrative hearing, but the recording device malfunctioned.
Roberts, 1999 UT App 358, ¶ 9. Consequently, this court concluded
that the “complete absence of a record” prevented meaningful
appellate review and thus violated the appellant’s due process
rights. Id. ¶¶ 13, 14.

¶94 Our supreme court has noted that “the almost complete
absence of a trial transcript makes appellate review impossible
because it precludes a meaningful review of the lower court’s

20110204‐CA 33 2013 UT App 228
 State v. Davis

decision.” State v. Verikokides, 925 P.2d 1255, 1256 (Utah 1996). That
was the situation in Roberts. But unlike Roberts, the present case
does not involve the almost complete absence of a record of trial,
but rather the absence of two notes.10

¶95 We therefore follow the general rule that “lack of an
adequate record constitutes a basis for remand and a new hearing
only where . . . the record cannot be satisfactorily reconstructed.”
See Roberts, 1999 UT App 358, ¶ 11. Davis has not demonstrated or
asserted that the record cannot be satisfactorily reconstructed.
Consequently, the lack of an adequate record in this case does not
constitute a basis for remand and a new hearing.11 Our review of
Davis’s claim challenging the court’s supplemental jury instruction
will proceed on the existing record on appeal.12

10. Davis also relies on State v. Tolano, 2001 UT App 37, 19 P.3d 400.
There, we stated in dicta and with little analysis that a misplaced
jury note would render a record inadequate for review in violation
of the appellant’s due process rights. Id. ¶ 1 n.1. We do not read the
Tolano footnote as intending to depart from the well‐established
procedures described above.

11. In addition, we note that an appellant’s “failure to ensure that
his objections were recorded at trial and his failure to reconstruct
the record under rule 11 precludes any finding of a due process
violation under the circumstances.” State v. Prawitt, 2011 UT App
261, ¶ 8, 262 P.3d 1203 (citing State v. Johnson, 2006 UT App 3, ¶ 13,
129 P.3d 282; West Valley City v. Roberts, 1999 UT App 358, ¶ 11, 993
P.2d 252).

12. We do not agree with the State that, without reconstruction, the
record is inadequate to review Davis’s claim and we must “assume
the regularity of the proceedings below.” State v. Blubaugh, 904 P.2d
688, 699 (Utah Ct. App. 1995). The record does reflect the gist of the
judge’s response to the jury, and Davis is entitled to argue the
merits of his claim based on the record as it stands.

20110204‐CA 34 2013 UT App 228
 State v. Davis

B. Prejudice

¶96 Davis argues that insofar as the general tenor of the trial
court’s response to the jury question may be determined from the
record made, the response constituted an improper comment on
the strength of the State’s case. Specifically, he asserts—and we
agree—that the record fairly suggests the court’s response. In
making a record of his objection, defense counsel paraphrased the
jury’s question as, “[I]f someone files a charge, is the prosecution
then obligated to file a case? Something along those lines.” The trial
court agreed with that characterization. Counsel then stated that he
would have preferred a limited response telling the jury to “review
their jury instructions.” We infer from this exchange that the
court’s supplemental instruction informed the jury that the
prosecution is not obligated to file a criminal case every time
someone claims to be the victim of a crime.

¶97 The trial court is to “instruct the jury on the law if the
instruction will assist the jurors in comprehending the case.” Utah
R. Crim. P. 19(b). “The court shall not comment on the evidence in
the case, and if the court refers to any of the evidence, it shall
instruct the jury that they are the exclusive judges of all questions
of fact.” Id. R. 19(f); see also State v. Green, 6 P.2d 177, 181 (Utah
1931) (noting that a trial court “is not permitted to comment on the
evidence, much less may [it] indicate to the jury that some material
facts, not admitted at the trial, are established beyond
controversy”). This is because “[i]t is the sole and exclusive
province of the jury to determine the facts in all criminal cases,
whether the evidence offered by the State is weak or strong, is in
conflict or is not controverted.” Green, 6 P.2d at 181; see also State v.
Taylor, 2005 UT 40, ¶ 22, 116 P.3d 360 (same).

¶98 Nevertheless, “[a]ny error, defect, irregularity or variance
which does not affect the substantial rights of a party shall be
disregarded.” Utah R. Crim. P. 30(a); see also State v. Johnson, 771
P.2d 1071, 1073 (Utah 1989) (holding that a trial court’s erroneous
mention of a non‐existent second charged offense to a jury was
harmless error because there was no indication that the jury

20110204‐CA 35 2013 UT App 228
 State v. Davis

considered it); State v. Ingleby, 2004 UT App 447, ¶ 13, 104 P.3d 657
(holding that a trial court’s description of an issue raised by jury
question as “peripheral” was harmless in light of a jury instruction
to “disregard any statement that the court may have made that
could be construed as favoring one side or the other”).

¶99 Davis argues here that “[t]he trial court’s response
informing the jury that the State is not required to file all cases
characterized the evidence, bolstered the State’s case, and gave
added weight to [C.D.’s] credibility.” “The response told the jury
that the State believed [C.D.] since it was not required to file
charges,” Davis asserts, “thereby suggesting that [C.D.] was
credible and that the State might have other information.” Davis
does not further elaborate on the potential harm he believes the
instruction may have caused.

¶100 Assuming without deciding that the judge’s comment was
improper, Davis has not demonstrated any resulting prejudice. The
instruction did little more than to acknowledge a commonplace
feature of our justice system well known to any consumer of local
news. Although at least one juror was apparently unaware of this
practice, it is no secret in our society that the decision of whether to
charge a crime lies with the prosecutor, not the complainant.
Consequently, declining to answer the jury’s question would
apparently have left at least one juror with the false impression that
prosecutors lack discretion to decline prosecutions.

¶101 The fact that the information was communicated in response
to a juror’s question about the operation of our criminal justice
system also mitigated any possible prejudicial effect. This issue
would take on quite a different cast had the prosecutor in closing
stated, “You know, a lot of women report having been the victims
of domestic violence. Sometimes we prosecute, sometimes we
don’t. But when we heard this woman’s story, we knew we had to
prosecute.” Such a statement might well be viewed as a prosecutor
vouching for the credibility of the victim.

20110204‐CA 36 2013 UT App 228
 State v. Davis

¶102 A prosecutor must avoid “‘vouching for the credibility of
witnesses and expressing his personal opinion concerning the guilt
of the accused.’” State v. Hopkins, 782 P.2d 475, 479–80 (Utah 1989)
(quoting United States v. Young, 470 U.S. 1, 18 (1985)). “‘[S]uch
comments can convey the impression that evidence not presented
to the jury, but known to the prosecutor, supports the charges
against the defendant and can thus jeopardize the defendant’s right
to be tried solely on the basis of the evidence presented to the
jury . . . .’” Id. (quoting Young, 470 U.S. at 18). Moreover, “‘the
prosecutor’s opinion carries with it the imprimatur of the
Government and may induce the jury to trust the Government’s
judgment rather than its own view of the evidence.’” Id. (quoting
Young, 470 U.S. at 18–19). Thus, such comments are improper when
“the jury could reasonably believe that the prosecutor was
indicating a personal belief in the witness’ credibility.” State v.
Carter, 776 P.2d 886, 892 (Utah 1989) (citation and internal
quotation marks omitted).

¶103 This did not happen here. Nothing in the record before us
indicates that the supplemental instruction suggested either the
existence of extra‐record evidence or that the prosecutor’s decision
to charge the defendant was based on a personal belief in
defendant’s guilt rather than an assessment that the evidence rose
to a level requiring that a jury should determine the defendant’s
guilt.

¶104 Finally, jury instructions must be read and evaluated as a
whole. State v. Johnson, 774 P.2d 1141, 1146 (Utah 1989). And “if
taken as a whole they fairly instruct the jury on the law applicable
to the case, the fact that one of the instructions, standing alone, is
not as accurate as it might have been is not reversible error.” State
v. Lucero, 866 P.2d 1, 3 (Utah Ct. App. 1993) (citing State v. Brooks,
638 P.2d 537, 542 (Utah 1981)). Here, the trial judge instructed the
jury, “[N]either the lawyers nor I actually decide the case, because
that is your role. Don’t be influenced by what you think our
personal opinions are; rather, you decide the case based upon the
law explained in these instructions and the evidence presented in
court.”

20110204‐CA 37 2013 UT App 228
 State v. Davis

¶105 In sum, Davis has not demonstrated that the supplemental
instruction created a reasonable likelihood of a different result.

IV. Cumulative Error

¶106 Davis contends that the errors he identifies are alone
sufficient to require reversal, “but even if they [are] not, the errors
worked together in a way that undermined the fairness of the
proceeding, requiring reversal.” “Under the cumulative error
doctrine, we will reverse only if the cumulative effect of the several
errors undermines our confidence that a fair trial was had.” State
v. Dunn, 850 P.2d 1201, 1229 (Utah 1993) (citations, ellipsis, and
internal quotation marks omitted).

¶107 In this opinion, we have determined that the trial court
committed several errors, although we have concluded that no
error alone was sufficiently prejudicial to require reversal. After
considering the limited prejudicial effect of these errors and the
relative strength of the case against Davis, our confidence in the
fairness of the trial has not been undermined. See State v. Havatone,
2008 UT App 133, ¶¶ 8, 17, 183 P.3d 257 (reversing when errors
that were not individually prejudicial were combined and
considered in light of the weakness of the evidence supporting the
conviction, because our confidence that defendant received a fair
trial was undermined). Here, the jury was presented with a
relatively strong case against Davis, including photographic
evidence of injuries, testimony from numerous lay and expert
witnesses, and C.D.’s detailed testimony. In addition, Davis
demonstrated no motive for C.D. to fabricate her account.
Therefore, despite several errors, our confidence in the fairness of
the trial is not undermined and we decline to reverse under the
cumulative error doctrine.

20110204‐CA 38 2013 UT App 228
 State v. Davis

CONCLUSION

¶108 The prosecutor’s sarcasm, while inappropriate, was
harmless beyond a reasonable doubt. Her questions about Davis’s
veracity did not draw the jury’s attention to any matter it was not
entitled to consider and, in any event, were harmless beyond a
reasonable doubt. Likewise, although improper, the prosecutor’s
question asking Davis to comment on the veracity of another
witness did not result in prejudice. The prosecutor’s misstatement
of the standard of proof during closing was harmless beyond a
reasonable doubt in light of the written jury instructions and the
trial court’s directive that the jury rely on the written instructions.
The balance of the prosecutor’s closing argument did not
improperly reference her experience, prejudice Davis by shifting
the burden of proof or improperly suggest that the defense theories
were false. Therefore, those statements which did constitute
prosecutorial misconduct were harmless beyond a reasonable
doubt.

¶109 Although evidence of the precautions taken by C.D.’s
workplace constituted improper bolstering, admission of that
evidence did not prejudice the outcome of the trial. Further, Davis
has not carried his burden of showing that the content of the
challenged supplemental jury instruction prejudiced him. We
therefore decline to reverse on these grounds.

¶110 Despite the errors that occurred during the course of the
trial, we decline to reverse under the cumulative error doctrine
because our confidence that Davis received a fair trial is not
undermined.13

13. We have addressed Davis’s principal contentions on appeal. To
the extent that we have not addressed other points or subpoints
raised or suggested by Davis, we have determined that they are
foreclosed by the foregoing analysis or lack merit. Moreover, they
do not contribute significantly to Davis’s cumulative error claim.
(continued...)

20110204‐CA 39 2013 UT App 228
 State v. Davis

¶111 Affirmed.

THORNE, Judge (concurring):

¶112 I concur in the majority opinion’s ultimate conclusion that
Davis’s convictions be affirmed, and I largely concur in its analysis
of Davis’s arguments on appeal. However, I disagree with the
majority’s assumption that the trial court erred—albeit
harmlessly—when it answered the jury’s inquiry about the
prosecutor’s discretion to bring charges against Davis. I see no
abuse of discretion in the trial court’s handling of the jury’s
question, and I therefore conclude that the trial court’s answer does
not constitute error.

¶113 The trial court is granted the discretion to decide how best
to handle inquiries on points of law from a deliberating jury. While
rule 17(n) of the Utah Rules of Criminal Procedure allows the trial
court to either “respond to the inquiry or advise the jury that no
further instructions shall be given,” Utah R. Crim. P. 17(n)
(emphasis added), the trial court “may in its discretion respond to
the inquiry in writing without having the jury brought before the
court.” Id.14

13. (...continued)
Accordingly, we decline to address them further. See State v. Carter,
776 P.2d 886, 888 (Utah 1989) (“[T]his court need not analyze and
address in writing each and every argument, issue, or claim raised
and properly before us on appeal. Rather it is a maxim of appellate
review that the nature and extent of an opinion rendered by an
appellate court is largely discretionary with that court.”).

14. I acknowledge that when the trial court avails itself of the
authority to respond to jury inquiries in writing, as it did in this
case, it is obligated to place its response into the record. See Utah R.
Crim. P. 17(n). Even though the record in this case does not, for
(continued...)

20110204‐CA 40 2013 UT App 228
 State v. Davis

¶114 Of course, there are limitations on the trial court’s discretion
to respond to jury inquiries. Pursuant to rule 19(f) of the Utah
Rules of Criminal Procedure, the trial court “shall not comment on
the evidence in the case, and if the court refers to any of the
evidence, it shall instruct the jury that they are the exclusive judges
of all questions of fact.” Id. R. 19(f); see State v. Alonzo, 973 P.2d 975,
980 (Utah 1998) (“[A] court may not comment on the weight of the
evidence presented at trial or comment on the merits of the case in
such a way that indicates a preference toward either party.”). A
trial court’s response to a jury’s inquiry must also accurately state
the law. Cf. State v. Marchet, 2012 UT App 197, ¶ 17, 284 P.3d 668
(“[J]ury instructions should not incorrectly or misleadingly state
the law.” (citation and internal quotation marks omitted)).

¶115 Here, the trial court apparently informed the jury, after
receiving the jury’s inquiry, that the prosecutor was not required
to file a criminal case every time someone claims to be the victim
of a crime. This response did not comment on the evidence of the
case, nor was it an inaccurate statement of law. See State v. Geer, 765
P.2d 1, 3 (Utah Ct. App. 1988) (“Prosecutors are given broad
discretion in determining whether to prosecute.”). Nevertheless,
the majority opinion assumes that the trial court’s response to the
jury inquiry was error. I cannot join in that assumption because it
is clear to me that the trial court’s response fell within the
appropriate range of its discretion.

¶116 The question of prosecutorial decision‐making was not
directly at issue in this case and is additionally a matter of common
knowledge among reasonably informed citizens. However, some
dispute on the issue had apparently arisen between the jurors, and
they considered it important enough to ask the court for
clarification. In my opinion, the trial court acted well within its

14. (...continued)
unknown reasons, contain the trial court’s response, I am satisfied
with the majority opinion’s treatment of the record deficiency. See
supra ¶¶ 85–95.

20110204‐CA 41 2013 UT App 228
 State v. Davis

discretion when it accurately responded to the jury’s request for
further instruction. Cf. State v. Couch, 635 P.2d 89, 95 (Utah 1981)
(“The critical fact is that the jury has signified its lack of
understanding of the meaning of a word it must apply in
performing its function.” (emphasis added)).

¶117 The Utah Supreme Court’s analysis in State v. Couch is
instructive on this point. In Couch, the trial court refused the jury’s
request that it define a common word that was contained in an
element of an offense. The supreme court reversed the defendant’s
conviction based on the trial court’s refusal to provide the
requested definition. See id. at 93–95. The supreme court explained
that “[i]t is normally unnecessary and undesirable for a trial judge
to volunteer definitions of terms of common usage for the jury.” Id.
at 94. “Where the jury requests the instruction, however, it is
generally held error to refuse to provide a definition, even where
the word is a term of common meaning.” Id.

¶118 Obviously, the tangential information requested in this case
is not as critical as the element definition requested in Couch.
Nevertheless, Couch supports the proposition that the trial court
may provide even commonly known information to the jury upon
the jury’s request, and this is true even when it would be
inappropriate to so instruct the jury as an initial matter. Further,
even though the prosecutorial discretion issue was tangential in
this case, the trial court evidently determined that it was better to
correctly answer the jury’s question than to allow the jury to
speculate on the matter or proceed on an incorrect understanding
of the law.

¶119 Finally, the modern trend in jury trials is clearly towards
empowering jurors to ask questions and otherwise treating jurors
like adult participants in the fact‐finding process. For example, in
2002, Utah amended its Rules of Criminal Procedure to allow jurors
to ask questions of witnesses at criminal trials. See Utah R. Crim. P.
17(i) & amend. note (2003). In light of this trend, I believe the trial
court should be granted broad discretion to entertain jury requests
for information so long as those requests can be answered

20110204‐CA 42 2013 UT App 228
 State v. Davis

accurately and without commenting on the evidence or the relative
strength of the parties’ cases.

¶120 The trial court’s response to the jury’s inquiry in this case
was accurate and did not constitute a comment on the evidence or
the strength or weakness of either party’s case. Accordingly, I
would hold that the trial court’s decision to respect the jury’s
request for information on prosecutorial charging discretion fell
within the boundaries of its discretion and did not constitute
error.15 On this limited point alone, I respectfully disagree with the
majority opinion.

15. Although I see no error in the trial court’s response to the jury,
I agree with the majority opinion’s conclusion that Davis has not
established any prejudice resulting from that response.

20110204‐CA 43 2013 UT App 228