State v. McCallie

2016 UT App 4

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JAMES CHRISTOPHER MCCALLIE,
Appellant.

Opinion
No. 20140148-CA
Filed January 7, 2016

Third District Court, Salt Lake Department
The Honorable Denise P. Lindberg
No. 131903319

Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES GREGORY K. ORME and KATE A. TOOMEY concurred.

VOROS, Judge:

¶1 After an evening of drinking and card-playing, James
Christopher McCallie and an acquaintance had an altercation
involving a handgun. The acquaintance (Victim) got the worst of
it, suffering a non-fatal gunshot wound to his abdomen.
McCallie claimed self-defense, but the jury convicted him of
aggravated assault, a third-degree felony. On appeal, McCallie
contends that his right to remain silent was infringed when the
prosecutor questioned why McCallie had not claimed self-
defense in his police interview. We agree with McCallie that
constitutional error occurred, but we agree with the State that
the error was harmless beyond a reasonable doubt. We therefore
affirm the conviction.
 State v. McCallie

BACKGROUND1

¶2 Around 10:00 a.m. on March 30, 2013, Victim visited his
aunt and uncle at their home. He brought a half gallon of
whiskey for a day of drinking and cribbage. Sometime later,
McCallie, who rented a room from Victim’s aunt and uncle,
returned home with an 18-pack of beer after completing a long-
haul route as a truck driver.

¶3 McCallie and Victim drank, played cards, argued, and
talked about guns. Victim asked to see McCallie’s gun, and
McCallie obliged. McCallie retired to his bedroom multiple
times; each time, Victim followed and asked McCallie to come
out and drink with him; each time McCallie joined him. At some
point, McCallie and Victim’s aunt got into a verbal
confrontation. McCallie called her a derogatory name, and
Victim demanded that McCallie apologize. McCallie refused; he
‚went to [his] room and . . . was going to go to bed . . . when
[Victim] came in for the last time.‛

¶4 McCallie testified that as he sat on his bed, Victim stood
over him with one foot on top of McCallie’s feet and ‚both of his
fists up.‛ McCallie grabbed his gun from under his pillow.
McCallie testified that he did not have his finger on the trigger
but rather that he placed it ‚across the frame of the weapon.‛
Then, according to McCallie, Victim grabbed the gun, McCallie
pulled back on the gun, Victim fell on top of him, and when
Victim fell, Victim ‚pushed the trigger and fired the weapon
himself.‛

¶5 Victim gave a different version of events. He testified that
McCallie invited him to his room for some brandy. Victim

1. ‚On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.‛ State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d
346 (citation and internal quotation marks omitted).

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 State v. McCallie

followed McCallie down the hall to his room when, suddenly,
McCallie turned around ‚and he’s got a gun.‛ Then, according
to Victim, McCallie ‚*p+ulled back the hammer, raised it up and
pointed it in *Victim’s+ face.‛ Victim testified that McCallie said
‚How about I just fuckin’ kill you?‛ Victim grabbed McCallie’s
wrist with one hand and the barrel of the gun with the other
hand. As Victim tried to pull the gun away, it came down near
his side, ‚and then the gun went off.‛ Victim suffered a non-fatal
gunshot wound to his abdomen.2

¶6 After his arrest, McCallie acted—to use his word—
‚belligerent‛ with police. He testified that they ‚were trying to
read [me] my rights and do the interrogation . . . they were
asking me what happened and it’s like, ‘I’m not telling you
anything’ and they read my rights and said I’m—‘no, I don’t
understand my rights, I’m not telling you anything.’‛ On cross-
examination, McCallie described the attempted interrogation:

[Prosecutor:] [T]hen they offered you a Coke?
[McCallie:] Yes.
[Prosecutor:] And your answer was, yes, I’ll have a
rum and Coke.
[McCallie:] Sure. I was being belligerent.
[Prosecutor:] . . . And they came back and [said]
we’ll go get you a Coke and then you said not a
problem, how about a six pack and a cigarette?
[McCallie:] Yes.
[Prosecutor:] And then you asked them, ‚Still don’t
understand why I’m here. What happened?‛
[McCallie:] Exactly.

2. The jury acquitted McCallie of the count of discharge of a
firearm. Accordingly, his version of the shooting is most
consistent with the jury’s verdict.

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 State v. McCallie

[Prosecutor:] They said you’re under arrest and
you said for what? Yes?
[McCallie]: Yes.
....
[Prosecutor:] And then [they] tried to explain and
again you said, ‚For what? Why am I here?‛ And
then they explained your rights.
[McCallie:] Yes.
[Prosecutor:] And then at one point [the detective]
says what part of your rights do you not
understand and your answer was ‚The part where
you’re fucking jerking me [around]. What the fuck
am I doing here to begin with? You people woke
me up.‛
[McCallie:] Yes.
[Prosecutor:] [The detective] tries to explain—this
could be a real short thing. And you said, ‚No, I
want to know what the fuck I am doing here in the
first place . . . .‛

¶7 Before trial, McCallie’s trial counsel moved to exclude
McCallie’s police interview because he ‚stated numerous times
that he didn’t understand his Miranda rights and finally the State
gave up and did not question [him] any further.‛ The prosecutor
responded that he would not elicit any testimony from the
detective about the content of his interview with McCallie,
because ‚that can be cast as us commenting on his right to
remain silent.‛ Accordingly, the detective testified about
McCallie’s demeanor, attitude, and general belligerence during
the attempted interrogation but not about any of McCallie’s
statements.

¶8 However, in closing arguments, the prosecutor described
the evolution of McCallie’s story over time as proof that
McCallie had fabricated it:

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 State v. McCallie

[T]he facts that I’ve offered react together, show an
evolution, a progression of what? Of the
defendant’s fabrication.
....
The evolution of his story from the very beginning
when they question him, what does he say? Why
am I here? Why are you jerking me [around]?
Nothing happened. You woke me up. You woke
me up. He didn’t say it was an accident. He doesn’t
say this was self-defense.

McCallie’s trial counsel objected and moved for a mistrial on the
ground that the prosecutor had ‚comment[ed] on *McCallie’s+
right to remain silent.‛ The court denied the motion.

¶9 Ultimately, the jury acquitted McCallie of felony
discharge of a firearm but convicted him of third-degree-felony
aggravated assault. After the verdict, McCallie moved for a new
trial, which the court denied.

ISSUES ON APPEAL

¶10 McCallie raises two challenges on appeal. First, he
contends that the trial court committed constitutional error by
denying his mistrial and new trial motions, because the
prosecutor impermissibly commented on McCallie’s exercise of
his right to remain silent. Second, he contends that the trial court
erred in denying his motion for a directed verdict based on the
insufficiency of the evidence.

ANALYSIS

I. Constitutional Error

¶11 McCallie contends that the trial court erred ‚in denying
[his] motion for mistrial and motion for a new trial, given the

20140148-CA 5 2016 UT App 4
 State v. McCallie

State’s comments regarding [his] exercise of his right to remain
silent.‛ The State contends that the prosecutor’s closing
argument ‚was not that Defendant had remained silent when
given an opportunity to offer an innocent explanation for his
conduct, but rather that his statements to the police and others
were inconsistent with his trial testimony.‛ Accordingly, the
State maintains that ‚[t]his type of argument is proper.‛

¶12 ‚We review a trial court’s ruling on a motion for a new
trial under an abuse of discretion standard. At the same time,
however, we review the legal standards applied by the trial
court . . . for correctness . . . .‛ State v. Billingsley, 2013 UT 17, ¶ 9,
311 P.3d 995 (first omission in original) (citations and internal
quotation marks omitted). If we determine the trial court erred,
and ‚the error results in the deprivation of a constitutional right,
we apply a higher standard of scrutiny, reversing the conviction
unless we find the error harmless beyond a reasonable doubt.‛
State v. Calliham, 2002 UT 86, ¶ 45, 55 P.3d 573; see also Chapman
v. California, 386 U.S. 18, 24 (1967). ‚The State bears the burden of
proving that an error passes muster under this standard.‛ Brecht
v. Abrahamson, 507 U.S. 619, 630 (1993).

A. The Prosecutor Impermissibly Commented on McCallie’s
Silence.

¶13 McCallie argues that ‚[t]he State’s use of Mr. McCallie’s
silence as evidence of guilt violates his right against self-
incrimination and was a critical error requiring reversal.‛ He
asserts that the prosecutor’s statement during closing amounted
to an argument that ‚McCallie made up the story later,
otherwise he would have shared it at the time of interrogation.‛3

3. McCallie did not remain silent in the usual sense. But, as we
explain below, for Fifth Amendment purposes controlling case
law treats commenting on the suspect’s statements about the
interrogation—as opposed to statements about the crime—as
tantamount to commenting on the suspect’s silence.

20140148-CA 6 2016 UT App 4
 State v. McCallie

¶14 The State, on the other hand, argues that the prosecutor
‚described how Defendant told the police not that he acted in
self-defense or that it was an accident—as he did at trial—but
that he did not know what happened because the police had just
awakened him.‛ Thus, the State argues that the prosecutor ‚did
not raise the inference that silence equals guilt; in fact the
[prosecutor] did not mention Defendant’s silence at all. Instead,
the [prosecutor] properly argued that Defendant’s trial
testimony was inconsistent with his prior statements to the
police‛ and others.

¶15 The Fifth Amendment to the United States Constitution
commands, ‚No person . . . shall be compelled in any criminal
case to be a witness against himself . . . .‛ U.S. Const. amend. V.
And the Supreme Court’s decision in Miranda v. Arizona, 384 U.S.
436 (1966), requires ‚that a person taken into custody be advised
immediately that he has the right to remain silent, that anything
he says may be used against him, and that he has a right to
retained or appointed counsel before submitting to
interrogation.‛ Doyle v. Ohio, 426 U.S. 610, 617 (1976). Implicit in
the Miranda warning is the ‚assurance that silence will carry no
penalty.‛ Id. at 618. Consequently, where a defendant remains
silent after hearing Miranda warnings, ‚it would be
fundamentally unfair and a deprivation of due process to allow
the arrested person’s silence to be used to impeach an
explanation subsequently offered at trial.‛ Id. (footnote omitted);
see also State v. Wiswell, 639 P.2d 146, 147 (Utah 1981).

¶16 In Doyle, the Supreme Court examined ‚whether a state
prosecutor may seek to impeach a defendant’s exculpatory story,
told for the first time at trial, by cross-examining the defendant
about his failure to have told the story after receiving Miranda
warnings at the time of his arrest.‛ Doyle, 426 U.S. at 611. The
case involved two defendants, Doyle and Wood, who were
arrested together, charged with a single sale of marijuana, and
tried in separate trials about one week apart. Id. ‚The evidence at
their trials was identical in all material respects.‛ Id.

20140148-CA 7 2016 UT App 4
 State v. McCallie

¶17 At those trials, the prosecution argued that ‚the
discrepancy between an exculpatory story at trial and silence at
time of arrest gives rise to an inference that the story was
fabricated somewhere along the way.‛ Id. at 616. To support this
theory at Doyle’s trial, the prosecutor elicited the following
testimony from Doyle:

Q. (By the prosecutor.) . . . You are innocent?
A. (By Doyle.) I am innocent. Yes Sir.
Q. That’s why you told the police department and
[the officer] when they arrived . . . about your
innocence?
A. . . . I didn’t tell them about my innocence. No.
Q. You said nothing at all about how you had been
set up?
....
A. Not that I recall, Sir.
Q. As a matter of fact, if I recall your testimony
correctly, you said instead of protesting your
innocence, as you do today, you said in response to
a question of [the officer], ‚I don’t know what you
are talking about.‛
A. I believe what I said [is] ‚What’s this all about?‛
If I remember, that’s the only thing I said. . . .
Q. All right. But you didn’t protest your innocence
at that time?
A. Not until I knew what was going on.

Id. at 614–15 n.5 (first and third omission in original). And at
Wood’s trial, the prosecutor asked Doyle why he didn’t tell
police that he had been framed; Doyle responded that he said to
the detective ‚what the hell is all this about and he said you are
under arrest for the suspicion of selling marijuana and I said you

20140148-CA 8 2016 UT App 4
 State v. McCallie

got to be crazy. I was pretty upset.‛ Id. at 622 n.4 (Stevens, J.,
dissenting).

¶18 The Supreme Court held that this ‚use for impeachment
purposes of [the defendants’] silence, at the time of arrest and
after receiving Miranda warnings, violated the Due Process
Clause of the Fourteenth Amendment.‛ Id. at 619. And because
‚[t]he State has not claimed that such use in the circumstances of
this case might have been harmless error,‛ the Supreme Court
reversed the convictions. Id. at 619–20.

¶19 Four years after issuing Doyle, the Supreme Court applied
that precedent in Anderson v. Charles, 447 U.S. 404 (1980) (per
curiam). Anderson involved a murder. The defendant was found
with the victim’s car. The defendant testified at trial, and his
testimony about the car differed crucially from his statement to
police at the time of his arrest. Id. at 404–06. The Supreme Court
held that Doyle did not forbid impeaching a defendant’s trial
testimony about the crime with his police statement about the
crime; the prosecutor’s questions in that case ‚were not designed
to draw meaning from silence, but to elicit an explanation for a
prior inconsistent statement.‛ Id. at 409.

¶20 The Anderson Court distinguished Doyle on the ground
that Doyle ‚involved two defendants who made no postarrest
statements about their involvement in the crime.‛ Id. at 407.
However, as the Court acknowledged, that assertion was not
literally true, at least as to Doyle. Doyle asked arresting officers,
‚What’s this all about?‛ and ‚exclaimed ‘you got to be crazy,’ or
‘I don’t know what you are talking about.’‛ Id. at 407 n.2
(citations omitted). But the Court noted that both the majority
and dissenting opinions in Doyle ‚analyzed the due process
question as if both defendants had remained silent.‛ Id. What
matters, the Court explained, are post-arrest statements ‚about
*a defendant’s+ involvement in the crime.‛ Id. at 407.

¶21 Consequently, under Anderson, post-arrest statements
about the suspect’s involvement in the interrogation itself—such
as ‚What’s this all about?‛ ‚You got to be crazy,‛ and ‚I don’t

20140148-CA 9 2016 UT App 4
 State v. McCallie

know what you are talking about‛—are, for Doyle purposes, the
equivalent of silence. Accordingly, the prosecutor may not use
such statements to impeach a defendant’s trial testimony. We
thus must decide whether McCallie’s post-arrest statements fall
into this category of comments about his involvement in the
interrogation or, on the contrary, whether they can be fairly
described as comments about his involvement in the crime.

¶22 Discussing McCallie’s police interview in closing
argument, the prosecutor asked rhetorically, ‚[W]hat does he
say? Why am I here? Why are you jerking me [around]? Nothing
happened. You woke me up. You woke me up.‛ Though more
bellicose, these statements by McCallie are similar to statements
by Doyle in his police interview: ‚What’s this all about?‛ ‚You
got to be crazy,‛ and ‚I don’t know what you are talking about.‛
Both men were addressing the interrogation itself, not the crime
for which they were being interrogated. And because the
Supreme Court ‚analyzed the due process question as if [Doyle]
had remained silent,‛ Anderson, 447 U.S. at 407 n.2, we do the
same, proceeding here as if McCallie had remained silent.4

¶23 The State also argues that because McCallie made
statements to the police, his claim that he ‚‘remained silent’ at
the police interview is incorrect.‛ The State relies on the
Supreme Court’s decision in Berghuis v. Thompkins, 560 U.S. 370
(2010), to argue that McCallie did not remain silent and made
substantive statements to the police. The State argues that under
Berghuis, no Doyle violation exists absent an affirmative
invocation of the right to remain silent. In Berghuis, the Court
held that a suspect who wishes to invoke his right to remain
silent ‚must do so ‘unambiguously.’‛ Id. at 381. The Court

4. We of course realize that suspects’ statements feigning
ignorance during a police interrogation may turn out to be
‚graphically inconsistent with their trial testimony.‛ Doyle v.
Ohio, 426 U.S. 610, 621 (1976) (Stevens, J., dissenting). But again,
McCallie’s statements and Doyle’s statements are in this regard
indistinguishable.

20140148-CA 10 2016 UT App 4
 State v. McCallie

clarified that the defendant ‚did not say that he wanted to
remain silent or that he did not want to talk to police. Had he
made either of these simple unambiguous statements, he would
have invoked his right to cut off questioning.‛ Id. at 382 (citation
and internal quotation marks omitted).

¶24 Berghuis does not control the present case. The Supreme
Court has distinguished Fifth Amendment right-to-remain-silent
cases from due process comment-on-silence cases. Thus, Berghuis
holds that the Fifth Amendment right to remain silent, like the
Fifth Amendment right to counsel, must be invoked
unambiguously. Id. at 375–76, 381. And a plurality of the
Supreme Court has held in the Fifth Amendment context that
‚[a] suspect who stands mute has not done enough to put police
on notice that he is relying on his Fifth Amendment privilege.‛
Salinas v. Texas, 133 S. Ct. 2174, 2182 (2013) (plurality opinion).5

¶25 But the plurality also stated that ‚due process prohibits
prosecutors from pointing to the fact that a defendant was silent
after he heard Miranda warnings.‛ Id. at 2182 n.3 (emphasis in
original) (citing Doyle, 426 U.S. at 617–18 (1976)). The plurality’s
formulation of Doyle’s holding emphasizes the suspect’s having
heard—not necessarily invoked—his Miranda rights. And there
is no dispute here that McCallie heard his Miranda rights. Nor do
we discern any intent by the Salinas plurality to abandon or
narrow Doyle. And in Doyle, neither defendant ‚claimed the
privilege and . . . Doyle did not even remain silent.‛ Doyle, 426
U.S. at 627–28 (Stevens, J., dissenting). Thus, we cannot agree
that in the post-Miranda context, a suspect must unambiguously
invoke his right to remain silent to trigger Doyle’s ‚assurance
that silence will carry no penalty.‛ Id. at 618 (majority opinion).

5. Justice Thomas, joined by Justice Scalia, concurred in the
judgment of the Court on the ground that a prosecutor’s
comments on a defendant’s precustodial silence do not violate
the Fifth Amendment. See Salinas v. Texas, 133 S. Ct. 2174, 2184
(2013) (Thomas, J., concurring).

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 State v. McCallie

¶26 In sum, we conclude that the prosecutor committed a
Doyle violation when he commented on McCallie’s exercise of
his right to remain silent. Having concluded a constitutional
error occurred, we will reverse ‚unless we find the error
harmless beyond a reasonable doubt.‛ State v. Calliham, 2002 UT
86, ¶ 45, 55 P.3d 573; see also Chapman v. California, 386 U.S. 18, 24
(1967).

B. The Constitutional Error Was Harmless Beyond a
Reasonable Doubt.

¶27 Most constitutional errors do not automatically result in
reversal. Barring structural error, ‚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.‛ Delaware v. Van Arsdall,
475 U.S. 673, 681 (1986). Doyle errors are not structural. See Brecht
v. Abrahamson, 507 U.S. 619, 629 (1993) (citing Arizona v.
Fulminante, 499 U.S. 279, 307 (1991)). Thus, we address whether
we may confidently say, on the whole record, that the Doyle
error here was harmless beyond a reasonable doubt.

¶28 In determining whether a Doyle error was harmless
beyond a reasonable doubt, we may consider four factors:

(1) whether the jury would naturally and
necessarily construe the comment as referring to
defendant’s silence; (2) whether there was
overwhelming evidence of defendant’s guilt;
(3) whether the reference was isolated; and
(4) whether the trial court instructed the jury not to
draw any adverse presumption from defendant’s
[silence].

State v. Byrd, 937 P.2d 532, 535 (Utah Ct. App. 1997) (alteration in
original) (citation and internal quotation marks omitted).

¶29 First, we do not believe that the jury would have
‚naturally and necessarily‛ construed the prosecutor’s comment

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 State v. McCallie

as a comment on McCallie’s silence. See id. (citation and internal
quotation marks omitted). As explained above, Doyle and
Anderson require us to ‚analyze[] the due process question as if
[McCallie] had remained silent.‛ Anderson v. Charles, 447 U.S.
404, 407 n.2 (1980) (per curiam). But McCallie in fact made
statements to police, and the prosecutor’s improper comments
referred to these statements. Given this factual context, we
cannot say that a lay jury would naturally and necessarily have
understood the prosecutor’s reference as a comment on
McCallie’s silence in the Fifth Amendment sense. We therefore
conclude that the first Byrd factor weighs in favor of
harmlessness.

¶30 Second, we consider whether the evidence of McCallie’s
guilt was overwhelming. See Byrd, 937 P.2d at 535. Because the
jury acquitted McCallie of discharge of a firearm and convicted
him only of aggravated assault, we consider only the latter
offense.

¶31 As this court explained in Byrd, ‚Courts have generally
refused . . . to conclude that evidence was overwhelming in cases
that ultimately rested on the jury’s resolution of conflicting
evidence, particularly where the defendant’s credibility is
involved.‛ Id. at 536. However, on the point in question—
whether McCallie’s story had evolved over time—the evidence
did not conflict and was overwhelming.

¶32 The prosecutor demonstrated the evolution of McCallie’s
story through a series of jailhouse phone calls. Portions of these
recorded phone calls were played for the jury. In a call to his
mother, McCallie stated that he needed Victim ‚to say this was
an accident.‛ A day later McCallie assured his mother that
Victim would be a ‚team player‛ and would ‚say this was an
accident.‛ But a friend later told McCallie that Victim ‚was
unwilling to say this was an accident,‛ to which McCallie
replied, ‚I told [Victim] we’d take care of him. Talk to him again.
This will be well worth his while.‛ He also asked the friend if
she could ‚be pushy‛ with Victim ‚about saying this was an
accident.‛ Finally, McCallie told his mother, ‚I’m going a

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 State v. McCallie

different direction with the story now, it’s self-defense now since
[Victim] . . . doesn’t want to play ball.‛

¶33 These phone calls, far more clearly than McCallie’s
belligerent statements to police, demonstrate that McCallie’s
story had indeed evolved over time. Thus, in closing argument,
after summarizing these phone calls—but before mentioning
McCallie’s police interview—the prosecutor stated, ‚That’s the
evolution of the story.‛ He continued, ‚At first it’s got to be an
accident. . . . All of a sudden it’s self-defense because [Victim’s]
not playing ball . . .‛

¶34 Furthermore, McCallie’s own version of events at trial
supported the charge of aggravated assault. McCallie testified
that after Victim barged into his room ‚for the umpteenth time,‛
McCallie felt threatened and so grabbed his loaded handgun
from under his pillow, ‚c[a]me up with it,‛ placed his finger
‚across the frame of the weapon,‛ and ordered Victim out of his
room. Under the law then in effect, ‚a threat, accompanied by a
show of immediate force or violence, to do bodily injury to
another‛ constituted an assault. Utah Code Ann. § 76-5-102(1)(b)
(LexisNexis 2012). Use of a dangerous weapon elevated the
offense to aggravated assault. Id. § 76-5-103(1)(a).6 Therefore,
barring his recently evolved theory of self-defense, McCallie’s
testimony alone provided evidence on which the jury could
reasonably have found the elements of aggravated assault.

¶35 Accordingly, we conclude that the second Byrd factor
weighs in favor of harmlessness.

¶36 Third, the prosecutor’s comment on McCallie’s silence
constituted an isolated reference. See State v. Byrd, 937 P.2d 532,
535 (Utah Ct. App. 1997). Although the comment occurred at a
crucial junction of the trial—the prosecutor’s rebuttal in closing

6. The same conduct meets the current definition of aggravated
assault. See Utah Code Ann. § 76-5-103(1) (LexisNexis Supp.
2015).

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 State v. McCallie

argument—it occupied at most four lines of the transcript.7 We
therefore conclude that it constituted an isolated statement.
Thus, this factor also weighs in favor of harmlessness.

¶37 Finally, the trial court did not instruct the jury not to draw
any adverse inference based on the prosecutor’s improper
comment. See id. Accordingly, this factor weighs in favor of
harm.

¶38 In sum, the Byrd factors weigh in favor of harmlessness.
Because the prosecutor’s isolated comment did not clearly refer
to McCallie’s silence, because the evidence that McCallie’s story
had evolved over time was overwhelming, and because
McCallie’s own version of events supported his conviction for
aggravated assault, we conclude that we ‚may confidently say,
on the whole record,‛ that the Doyle error here ‚was harmless
beyond a reasonable doubt.‛ See Delaware v. Van Arsdall, 475 U.S.
673, 681 (1986).

II. Sufficiency of the Evidence

¶39 McCallie also contends that the trial court erred in
denying his motion for a directed verdict based on the
sufficiency of the evidence. On appeal from a denial of a motion
for a directed verdict based on the sufficiency of the evidence,
‚[t]he applicable standard of review is . . . highly deferential.‛
State v. Nielsen, 2014 UT 10, ¶ 30, 326 P.3d 645. ‚The evidence is
to be viewed in the light most favorable to the [S]tate.‛ State v.
Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183. And ‚[w]e will uphold
the trial court’s decision if, upon reviewing the evidence and all
inferences that can be reasonably drawn from it, we conclude
that some evidence exists from which a reasonable jury could
find that the elements of the crime had been proven beyond a
reasonable doubt.‛ Id. (alteration in original) (citation and
internal quotation marks omitted). When reviewing a directed

7. By comparison, the prosecutor’s discussion of the jailhouse
phone calls occupied thirty-four lines of transcript.

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 State v. McCallie

verdict, ‚the court is not free to weigh the evidence and thus
invade the province of the jury, whose prerogative it is to judge
the facts.‛ Id. ¶ 32 (citations and internal quotation marks
omitted).

A. We Review the Entire Record on Appeal.

¶40 The parties disagree on whether we may canvas the entire
record for evidence supporting McCallie’s conviction or are
limited to evidence presented in the State’s case-in-chief—that is,
the evidence actually before the court at the time McCallie
moved for a directed verdict.

¶41 In a criminal case, a defendant may move for a directed
verdict of dismissal at the close of the State’s case-in-chief or
after the close of all the evidence. See Utah R. Crim. P. 17(p). If
the defendant moves for a directed verdict at the close of the
State’s case, and if, as often happens, the court denies the
motion, the defendant may call defense witnesses, after which
the State may call rebuttal witnesses. The question is whether the
appellate court may consider this post-motion evidence in
reviewing the trial court’s denial of the motion.

¶42 The State asks us to explicitly adopt the ‚waiver doctrine‛
or ‚waiver rule.‛ Under this rule, ‚if the defendant elects to
introduce evidence following the denial of a motion for a
judgment of acquittal, appellate review of the defendant’s
conviction encompasses all of the evidence presented to the jury,
irrespective of the sufficiency of evidence presented during the
state’s case-in-chief.‛ State v. Perkins, 856 A.2d 917, 929 n.16
(Conn. 2004). The State argues that Utah ‚seems to implicitly
follow‛ the waiver rule.8

8. The State describes the waiver rule as the prevailing view as
well as the federal rule. See 6 Wayne R. LaFave et al., Criminal
Procedure § 24.6(b) (3d ed. 2007). Our research bears out the
State’s characterization. See, e.g., United States v. Foster, 783 F.2d
(continued…)

20140148-CA 16 2016 UT App 4
 State v. McCallie

¶43 McCallie contests this characterization. Further, he
observes that, in any event, the State bases its sufficiency
argument entirely on evidence presented in its case-in-chief;
consequently, he argues, this court ‚ought to postpone ruling on
this issue until a case comes before it with relevant facts from the
entire case.‛

¶44 Our own research suggests that the Utah Supreme Court
adopted the waiver rule some years ago. In State v. Stockton, 310
P.2d 398 (Utah 1957), the court held that presenting evidence
after denial of a motion for directed verdict constitutes ‚waiver
of the motion to direct‛:

In jurisdictions where it is held to be the duty of
the court, in a proper case, to direct an acquittal, it
is the general rule that, if the entire evidence is
sufficient to sustain a conviction, the introduction
of evidence by the defense, after the court has
refused to direct a verdict of acquittal at the close
of the prosecution’s case, amounts to a waiver of
the motion to direct.

Id. at 400. The court added that a defendant ‚cannot complain of
the insufficiency of the evidence to sustain the verdict, though

(…continued)
1082, 1085 (D.C. Cir. 1986) (‚All eleven numbered circuits and
the District of Columbia Court of Appeals are now on record . . .
as adhering to the waiver rule‛); State v. Kinsella, 2011 ND 88,
¶ 11, 796 N.W.2d 678 (‚Further, our adherence to the waiver rule
is consistent with the position taken by the federal circuit courts
of appeals and the majority of state courts.‛) The waiver rule
‚eliminates the bizarre result that could occur in its absence,
namely, that a conviction could be reversed for evidentiary
insufficiency, despite evidence in the record sufficiently
establishing guilt.‛ State v. Perkins, 856 A.2d 917, 932–33 (Conn.
2004).

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 State v. McCallie

the State failed to make a case, if he himself proved one for it.‛
Id. (quoting State v. Potello, 119 P. 1023, 1029 (Utah 1911)). But see
State v. Kihlstrom, 1999 UT App 289, ¶ 9, 988 P.2d 949 (stating, in
reviewing a denied motion to dismiss, that ‚this court’s review
of the sufficiency of the evidence is limited to the evidence
adduced by the prosecution in its case-in-chief‛).

¶45 In any event, in the present case, McCallie himself has
placed the entire record before us. In arguing that the trial court
erred in denying his motion for directed verdict, McCallie relies
not only on evidence presented in the State’s case-in-chief, but
also on the testimony of four defense witnesses, including his
own. Accordingly, as concerns this case, the parties apparently
agree that we may assess the sufficiency of the evidence in light
of the entire record.

B. The Evidence Supports McCallie’s Conviction.

¶46 McCallie’s argument that sufficient evidence failed to
support his conviction rests on the severe intoxication of Victim,
the State’s key witness. Specifically, McCallie argues that the
State ‚failed to make out its prima facie case because the
evidence, which depended entirely on [Victim’s] testimony, was
based on a non-existent memory from extreme intoxication, and
was so contradictory to the physical evidence, as to be utterly
non-persuasive.‛ Distilled to its essence, McCallie’s argument
goes to Victim’s credibility. He maintains that, given Victim’s
extreme intoxication, ‚he would have had no or little ability to
form a memory [of the events] at all. What this reflects is that
[Victim] likely created [his] memories subsequently, when he
was no longer so highly intoxicated.‛

¶47 No party disputes that Victim had a blood alcohol content
(BAC) of .31. And at trial, an expert witness testified on behalf of
the defense, explaining that someone who did not regularly
drink and who had a BAC of .31 ‚would be non-functional,‛
‚they’d be out cold on this level, almost certainly.‛ He
anticipated that ‚[s]omeone who drank alcohol on a regular
basis . . . would be significantly impaired.‛ The expert explained

20140148-CA 18 2016 UT App 4
 State v. McCallie

that at this level of intoxication, the ability ‚[t]o think, to
understand, to remember, . . . and that sort of thing and to
reason‛ would be significantly impaired. But on cross-
examination the expert also explained that a seasoned drinker
could tolerate higher levels of alcohol:

Well, his brain is used to seeing blood alcohols that
are more substantial and so he’ll have, you know,
adapted to that and, you know, be able—he’ll be
able to function more normally, not completely
normal, he’ll be able to function more normally on
higher blood alcohols than, you know, a non-
drinker or a rare drinker.

All relevant evidence was before the jury to consider, and we
will not invade the province of the jury by reweighing it. See
State v. Montoya, 2004 UT 5, ¶ 32, 84 P.3d 1183. ‚*I+t was the
jury’s prerogative to weigh *Victim’s+ testimony in light of the
*expert testimony+, and *Victim’s+ testimony, if believed, was
sufficient to support a conviction‛ for aggravated assault. See
State v. Peterson, 2015 UT App 129, ¶ 8, 351 P.3d 812.9

¶48 Moreover, viewing the evidence in the light most
favorable to the State, as we must, see Montoya, 2004 UT 5, ¶ 29,
we conclude sufficient evidence supports McCallie’s aggravated
assault conviction. ‚A person commits aggravated assault if the
person commits assault . . . and uses a dangerous weapon . . . .‛
Utah Code Ann. § 76-5-103(1)(a) (LexisNexis 2012). Assault is,
among other things, ‚a threat, accompanied by a show of
immediate force or violence, to do bodily injury to another.‛ Id.
§ 76-5-102(1)(b). Taking Victim’s testimony at face value—as it
constitutes the evidence most favorable to the State—Victim
testified that McCallie had a gun; that he ‚[p]ulled back the

9. We also note that it appears the jury apparently disregarded at
least some of Victim’s testimony, because it acquitted McCallie
of one count of discharge of a firearm with injury.

20140148-CA 19 2016 UT App 4
 State v. McCallie

hammer, raised it up and pointed it in [Victim’s] face‛; and that
he uttered, ‚How about I just fuckin’ kill you?‛ This alone
constitutes sufficient evidence to uphold McCallie’s aggravated
assault conviction. Moreover, even if the jury found Victim’s
testimony wholly incredible, we conclude, as explained above,
that McCallie’s own testimony provided some evidence of every
element of the crime of which he was convicted. See supra ¶ 34.

¶49 Accordingly, we hold that the trial court did not err in
denying McCallie’s motion for a directed verdict, because the
State and the defense presented sufficient evidence to support
McCallie’s conviction.

CONCLUSION

¶50 In sum, we conclude that the prosecutor improperly
commented on McCallie’s right to remain silent, but that this
error was harmless beyond a reasonable doubt. We also
conclude that sufficient evidence exists to support McCallie’s
conviction. We therefore affirm.

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