State v. Fairbourn

2017 UT App 158

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
OSTON SHILOH FAIRBOURN,
Appellant.

Opinion
No. 20141149-CA
Filed August 24, 2017

Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 141900233

Craig L. Pankratz and David M. Corbett, Attorneys
for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and STEPHEN L. ROTH concurred.1

MORTENSEN, Judge:

¶1 Defendant Oston Shiloh Fairbourn was shot three times
after lunging at Officer with a seven-inch blade. A jury found
Defendant guilty of attempted aggravated murder. We now
consider whether Defendant’s claims of prosecutorial
misconduct and evidentiary error warrant reversal of his
conviction. We conclude they do not and affirm.

1. Judge Stephen L. Roth participated in this case as a member of
the Utah Court of Appeals. He retired from the court before this
decision issued.
 State v. Fairbourn

BACKGROUND

¶2 Because Defendant appeals from a jury verdict, “we recite
the facts from the record in the light most favorable to the jury’s
verdict and present conflicting evidence only as necessary to
understand issues raised on appeal.” State v. Daniels, 2002 UT 2,
¶ 2, 40 P.3d 611.

¶3 One winter evening, Defendant started walking across a
busy street without first looking either direction. His apparent
disregard for his own safety caught the attention of Officer, who
was on patrol in the area. Officer pulled into a nearby parking
lot to further observe Defendant’s behavior. Defendant
eventually noticed Officer and came into the lot where the patrol
car was parked. He stood at the end of the lot opposite of the car,
looking at Officer for about thirty seconds. Defendant then
walked away, into the middle of the street, before turning back
to Officer. Believing that Defendant was trying to provoke him,
Officer called for a single-officer backup, pulled his patrol car
into the street to block traffic, and turned on the car’s overhead
lights.

¶4 Officer had stopped about twenty feet away from
Defendant when he exited his patrol car. Upon Officer’s exit,
Defendant pulled out “a big knife” (with a seven-inch blade),
which he held at his waist “with his elbow bent as if he were
ready to use it.” The production of the knife was accompanied
by Defendant announcing that Officer was “about to fucking
die.” In response, Officer called for more backup, drew his
firearm, pointed it at Defendant, and repeatedly ordered
Defendant to drop the knife. Rather than complying with
Officer’s orders, Defendant began to move sideways. Officer
moved parallel to him, making sure Defendant “could not attack
from the side.” A bystander observed that Defendant was
shifting his weight from one foot to the other, “kind of dancing
around.”

¶5 Defendant turned and started moving quickly away from
Officer, and Officer followed. Defendant abruptly stopped and

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 State v. Fairbourn

turned to face Officer again, leaving somewhere from five to
twenty feet between them. He took a step toward Officer, who
told him to stop. Instead, Defendant switched his grip on the
knife, raised his arm so the hand holding the knife was near his
head, and took another step. Officer again ordered Defendant to
stop. Defendant ignored the order, lunging at Officer, and
Officer responded by shooting him three times.

¶6 Defendant was charged with attempted aggravated
murder, and the case went to a jury trial. Several pieces of
evidence presented are relevant to this appeal. First, Defendant
testified, explaining that on the night of his encounter with
Officer, he was heading to a friend’s house to retrieve his phone.
He had been to the house only twice before and got turned
around on his way. He stopped in a parking lot—the lot where
Officer was parked—as he deliberated whether to continue
trying to find his friend’s house or instead make his way to his
grandmother’s house nearby. Defendant had started into the
street when Officer pulled up in his patrol car. He thought about
running away, uneasy because he had a knife on him that would
be difficult to explain. He also considered discarding the knife
but decided against it. Instead, Defendant decided to continue
on toward his friend’s house. He gave up on that plan when he
realized he was still disoriented and turned around to face
Officer. Officer ordered Defendant to show him his hands, and
Defendant complied, showing Officer that he had the knife.
Again being told to show his hands, Defendant raised the knife
to his shoulder. According to Defendant, his actions were meant
as a show of surrender; he “had no intention of harming anyone
that night.” The next thing Defendant remembers is waking up
in a hospital.

¶7 In its brief, the State contends that while Defendant was
in the hospital, Detective gave Defendant Miranda warnings and
Defendant invoked his right to silence. But he then “continued to
talk” while Detective “simply listened—for about seven
minutes.” The topic of Defendant’s monologue was his belief
when first arriving at the hospital that “he was dead” and his

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feeling “that he was in hell.” However, after a thorough review
of the trial testimony, we found no reference to Detective giving
Defendant Miranda warnings or of Defendant invoking his
associated rights.

¶8 While cross-examining Defendant, the prosecutor asked
about this conversation with Detective. He asked, “You didn’t
say anything to [Detective] about this misunderstanding of you
trying to surrender to [Officer] when [Detective] talked to you at
the hospital, did you?” Defendant answered that he had not. The
prosecutor followed up with, “So today in court talking to this
jury here, nine months after this happened is the first time that
we’re hearing that you were trying to surrender to [Officer],
right?” Defendant answered, “Yes. I didn’t say anything to
[Detective].” The prosecutor then highlighted this exchange
during his closing argument:

I want to bring up three important things about the
defendant’s testimony that I’d like you to consider
in light of these elements that you’ve read about in
these instructions. First of all, everything that the
defendant told you today, he had the chance to say
before. When he was talking to [an officer] at the
scene, he had an interview with [Detective] after—

The prosecutor was interrupted by Defendant’s trial attorney
objecting that the prosecutor was “shifting the burden of proof.”
The trial court stated, “I don’t think it’s burden shifting,” and
allowed the closing argument to proceed.

¶9 During the cross-examination, the prosecutor further
pressed Defendant on his version of events when he asked
Defendant to explain the discrepancies between his testimony
and the testimony of eyewitnesses:

[Prosecutor]: And you heard these witnesses when
they told the jury that they saw you holding
something, some of them said a knife but some

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 State v. Fairbourn

said holding [your] hand out in front of you as you
are facing the officer, right?

[Defendant]: Yes, I heard that.

[Prosecutor]: And did you hear [another
eyewitness] when he told the jury that you were
holding the knife over your head, lunging and
making a motion like that towards the officer?

[Defendant]: Yes, I heard him.

[Prosecutor]: So if you were trying to submit or
surrender to the officer and these witnesses are
perceiving something else, is it your testimony
today that this is just a misunderstanding on their
part?

Defendant explained that “everyone has different perspectives
or [vantage] points.”

¶10 Another pertinent exchange took place at trial when the
prosecutor elicited testimony concerning Officer’s thoughts and
emotions during his interaction with Defendant. He asked what
was “personally going through [Officer’s] mind,” and Officer
explained,

Um, lots of things. . . . I think people get into law
enforcement for various reasons. For me it would
be difficult to hold a desk job because I have a
short attention span. And I enjoy serving people.

My thoughts immediately shift towards my family.
I’ve got people that depend on me. You know, you
kind of go into a—into a—I don’t know, for lack of
a better term, a cop mode to where you’re
professional and you try and be courteous. And all
that went out the window. Like it’s just pure
survival at that point.

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 State v. Fairbourn

I don’t think I gave another radio transmission out
until the aftermath of what had occurred, but yeah,
for me, it’s just a matter of making it home at the
end of the night at that point.[2]

¶11 Finally, Officer presented what Defendant refers to as
“expert testimony regarding the Twenty-one Foot Rule—a rule
of thumb for officers to use when determining when they are
most susceptible to a personal attack.” Defendant’s trial attorney
had objected to this testimony, arguing that Officer’s “state of

2. Defendant claims that the prosecutor then showcased this
testimony in closing argument, but the portion of the transcript
cited deals more with Officer’s ability to stay calm than his
thoughts about his family and staying safe. The prosecutor
reminded the jury,
I think you can see on the stand, [he] was
emotional about this situation. This is something
that upset him. This is something that, um, I’m
even prepared to say this caused him pause and
caused him significant amount of concerns. If you
remember from [the other officer] as well, when he
heard [Officer] call out on the radio, testified . . .
[he] could hear the stress in [Officer’s] voice.

[Officer] is somebody who [the other officer]
testified he knows he’s a pretty calm, collected guy
and an experienced police officer. And I think you
could see this from [Officer’s] testimony. I mean
[Officer] didn’t present himself to you as someone
who is high-strung. He didn’t present himself to
you as somebody who would get worked up about
a situation that was really nothing without any sort
of pause or concern. I think [Officer] presented
himself to you as a pretty cool cucumber, for lack
of a better word.

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 State v. Fairbourn

mind is not relevant” and that “the defendant’s state of mind is
what’s relevant.” The trial court clarified, “So I just want to make
clear, your objection is relevance?” When Defendant’s trial
counsel answered in the affirmative, the trial court replied,
“Okay. For now I’m going to sustain the objection regarding any
training that he had. But if the door is opened on cross, you cross
on the officer’s reaction, then the door is opened.” But later,
outside the presence of the jury, the trial court explained, “The
more I think about it, the more I think I may be in error.” After
receiving a proffer from Officer as to what he would say about
the twenty-one-foot rule, the trial court changed its ruling: “I’m
going to allow the testimony as has been articulated.”

¶12 The jury deliberated for more than nine hours before
returning a guilty verdict. Defendant appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Defendant raises two overarching issues for our review.
First, he asks us to consider whether the State engaged in
prosecutorial misconduct (1) by asking Defendant about his
interview with Detective, after Defendant had invoked his right
to silence; (2) by asking Defendant to provide an explanation for
the discrepancies between his testimony and the testimony of
eyewitnesses; or (3) by asking Officer what was going through
his mind when he encountered Defendant. Insofar as this issue
was preserved, we will review “the trial court’s rulings on
prosecutorial misconduct claims for an abuse of discretion.”
State v. Davis, 2013 UT App 228, ¶ 9, 311 P.3d 538 (citation and
internal quotation marks omitted). To the extent this issue was
not preserved, Defendant requests that we review it for plain
error. “For plain error, [Defendant] must demonstrate (i) [a]n
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful, i.e., absent the error, there is
a reasonable likelihood of a more favorable outcome for the
appellant.” State v. Bond, 2015 UT 88, ¶ 15, 361 P.3d 104 (second
alteration in original) (citation and internal quotation marks
omitted).

20141149-CA 7 2017 UT App 158
 State v. Fairbourn

¶14 Second, Defendant asks us to consider whether the trial
court improperly admitted evidence of the twenty-one-foot rule.
At trial, Defendant’s counsel objected that the evidence was
irrelevant.3 “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.

ANALYSIS

¶15 Defendant’s challenges on appeal involve three sources of
alleged prosecutorial misconduct—comments on Defendant’s
silence, questions about discrepancies between Defendant’s and
other witnesses’ testimonies, and questions about Officer’s
mindset—and the admission of what Defendant argues was
irrelevant testimony regarding the twenty-one-foot rule. We
consider these four issues in turn.

3. On appeal, Defendant also argues that the testimony was
improper expert testimony. But at trial, any objection to the
expert nature of the testimony was phrased as opposition to
Officer testifying to “what studies have shown or what any other
officer or other officers have been instructed or anyone in the
state of Utah would have been instructed if they were a peace
officer.” The State countered, “We don’t need to talk about
studies. . . . [H]e’s not testifying he’s an expert. He’s not saying
he’s part of the studies or that he conducted the studies.” To this,
Defendant’s trial counsel responded, “That would take care of
my other objections[.]” Thus, Defendant represented to the trial
court that any concern about improper expert evidence had been
resolved. Any error in admitting what Defendant characterizes
as expert evidence was invited. Because invited error precludes
appellate review of an issue, see State v. Maese, 2010 UT App 106,
¶ 12, 236 P.3d 155, we do not review this issue. See infra ¶¶ 39-42.

20141149-CA 8 2017 UT App 158
 State v. Fairbourn

I. Prosecutorial Misconduct

¶16 Defendant acknowledges that his prosecutorial-
misconduct claim “was only partially preserved.” The discrete
issue preserved arose during the State’s closing argument, when
the prosecutor brought up Defendant’s failure to previously
explain portions of the story that he provided while testifying at
trial.4 But the objection made on this point was that the State’s
closing argument “shifts the burden of proof” by suggesting that
Defendant had an “obligation to come forward with evidence.”
The trial court questioned whether this was actually an issue of
Defendant’s “Fifth Amendment right to remain silent,” but
because defense counsel repeatedly argued that the problem was
improper burden shifting, the trial court ultimately concluded, “I
don’t think it’s burden shifting,” and allowed the State to
continue. Because Defendant’s argument on appeal is not that
the State improperly shifted the burden of proof but instead that
it improperly commented on his silence, this issue was not
preserved.

¶17 We are therefore left to consider Defendant’s
prosecutorial-misconduct claim for plain error. Our supreme
court recently clarified the proper framework for appellate
review of unpreserved prosecutorial-misconduct claims:

[P]lain error review considers the plainness or
obviousness of the district court’s error (not the
prosecutor’s). That follows from the nature of our
appellate jurisdiction: Appellate courts review the
decisions of lower courts. We do not review the
actions of counsel—at least not directly.

That is not to say that the extent of a prosecutor’s
“misconduct” is irrelevant to our analysis. The

4. Defendant has labeled this instance of misconduct as the
prosecutor improperly commenting on his silence—the issue we
address in section I.A. below.

20141149-CA 9 2017 UT App 158
 State v. Fairbourn

propriety of a lower court decision may turn, in
part, on the egregiousness of an attorney’s misstep.
If a prosecutor asks a question aimed at eliciting
material that is both highly prejudicial and clearly
inadmissible, that may suggest that the trial judge
was plainly wrong in not intervening to block its
admission sua sponte. The more plain or obvious
the prosecutor’s misstep, the greater the likelihood
(other things being equal) that an appellate court
would find plain error in a judge’s failure to step in
to stop it. That kind of thinking may be behind our
assertion that “prosecutorial misconduct” can
constitute plain error.

State v. Hummel, 2017 UT 19, ¶¶ 107–08, 393 P.3d 314. With this
in mind, we now consider Defendant’s claims of prosecutorial
misconduct by “review[ing] the district court’s actions under
established exceptions to the law of preservation (here, plain
error).” Id. ¶ 111. As explained above, this requires looking at
whether “(i) an error exists; (ii) the error should have been
obvious to the trial court; and (iii) the error is harmful, i.e.,
absent the error, there is a reasonable likelihood of a more
favorable outcome for the appellant.” State v. Bond, 2015 UT 88,
¶ 15, 361 P.3d 104 (brackets, citation, and internal quotation
marks omitted).

A. Comments on Defendant’s Silence

¶18 Part of the prosecutor’s cross-examination of Defendant
included questions about the conversation that took place with
Detective at the hospital. The prosecutor clarified that Defendant
never gave Detective his explanation of events, ultimately
asking, “Why didn’t you tell this story to anybody when you got
arrested?” Then, during closing argument, the prosecutor
explained to the jury that “everything that the defendant told
you today, he had the chance to say before.”

¶19 The United States Supreme Court has held “that the use
for impeachment purposes of [a defendant’s] silence, at the time

20141149-CA 10 2017 UT App 158
 State v. Fairbourn

of arrest and after receiving Miranda warnings, violate[s] the
Due Process Clause of the Fourteenth Amendment.” Doyle v.
Ohio, 426 U.S. 610, 619 (1976). The State contends that Doyle is
inapplicable because Defendant chose to talk after initially
indicating a desire to exercise his right to remain silent. For
purposes of our analysis, we need not decide whether Defendant
exercised his right to remain silent. Even if we assume
Defendant invoked his right to remain silent and that the
prosecutor’s question was out of bounds, Defendant has not
demonstrated that the presumed error should have been obvious
to the trial court or that the presumed error was harmful. See
Bond, 2015 UT 88, ¶ 15.

¶20 As an initial matter, we note that any error related to the
prosecutor’s comment on Defendant’s silence during closing
argument was invited, and invited error precludes appellate
review of an issue. Where trial counsel affirmatively waives an
objection, we will not conduct a plain-error review of the
underlying issue. See State v. Maese, 2010 UT App 106, ¶ 12, 236
P.3d 155. When defense counsel objected during closing
argument, he did so on the basis of improper burden shifting.
And when the trial court explicitly asked whether the issue was
actually one related to Defendant’s right to remain silent,
defense counsel reiterated that his objection was to burden
shifting. Under these circumstances, any error was invited and
we will not consider this issue further.

¶21 We therefore focus our review on the prosecutor’s
questions during cross-examination of Defendant, and
Defendant has not persuaded us that plain error requires
reversal on this point.

¶22 To begin, any error would not have been obvious to the
trial court. The prosecutor began the relevant line of questioning
by asking Defendant whether he was aware that Detective had
visited him in the hospital. Defendant answered, “Yes.” The
prosecutor then asked, “And you talked to him at the hospital,
right?” Defendant again answered, “Yes.” The prosecutor
followed up by asking, “You didn’t say anything to him about

20141149-CA 11 2017 UT App 158
 State v. Fairbourn

this misunderstanding of you trying to surrender to [Officer]
when [Detective] talked to you at the hospital, did you?” To this,
Defendant responded, “No.” The challenged question—whether
Defendant shared his version of events with Detective—came
immediately after Defendant said that he “talked to” Detective.
In context, it would not have been clear to the trial court that the
question related to Defendant’s silence. Instead, the prosecutor’s
questions appeared to be an attempt to impeach Defendant’s
credibility.

¶23 “If a defendant takes the stand and testifies in his own
defense, his credibility may be impeached and his testimony
assailed like that of any other witness, and the breadth of his
waiver is determined by the scope of relevant cross-
examination.” State v. Winward, 941 P.2d 627, 634 (Utah Ct. App.
1997) (brackets, citation, and internal quotation marks omitted).

In the instant case, appellant had no right to set
forth to the jury all the facts which tend in his favor
without laying himself open to a cross-examination
upon those facts. During the challenged cross-
examination, the prosecutor did not mention
appellant’s exercise of his right to silence . . . . The
prosecutor never stated or implied that appellant’s
exercise of his right . . . was suggestive of guilt.

See id. (citations and internal quotation marks omitted). 5 Because
it likely appeared to the trial court as if the prosecutor was

5. The similar situation presented in Winward led this court to
conclude that the challenged questioning “was simply not error,
and the first requirement of the plain error doctrine was not
satisfied.” State v. Winward, 941 P.2d 627, 634 (Utah Ct. App.
1997). The facts of the present case do not lend themselves to
such a determination, as the record is less clear about if, when, or
how long Defendant chose to exercise his right to remain silent.
But Winward is nevertheless helpful to our analysis regarding the
(continued…)

20141149-CA 12 2017 UT App 158
 State v. Fairbourn

properly using cross-examination to challenge the facts
Defendant presented, we cannot conclude that any error in that
questioning would have been obvious.

¶24 Furthermore, even if the trial court should have
intervened in the cross-examination, its failure to do so did not
harm Defendant. In deciding whether a prosecutor’s comments
on a defendant’s silence were harmful, we typically consider

(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
decision not to testify.

State v. Reyes, 861 P.2d 1055, 1057 (Utah Ct. App. 1993) (quoting
State v. Tillman, 750 P.2d 546, 554 (Utah 1987) (plurality
opinion)).6

(…continued)
obviousness of any presumed error. Specifically, because it is
unclear whether Defendant invoked his right to remain silent, to
the trial court in the present case the situation would have
appeared as it did in Winward; it would seem as if a prosecutor
were rightfully challenging a testifying defendant regarding his
version of events.

6. Again, because this claim is unpreserved, it does not fit within
a standard prosecutorial-misconduct analysis and we instead
use the framework applicable to a plain-error analysis. But as
our supreme court clarified in State v. Hummel, 2017 UT 19, 393
P.3d 314, that does not render the prosecutor’s conduct
irrelevant. Id. ¶ 108. We consider the conduct of the prosecutor
(continued…)

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 State v. Fairbourn

¶25 We are confident that the jury would not necessarily
construe the prosecutor’s questions as referring to Defendant’s
silence, and there was strong evidence of Defendant’s guilt. See
id. at 1057. We acknowledge that the challenged comments
appeared both during cross-examination and during closing
argument; therefore, we cannot say that the comments were
isolated. See id. No curative instruction was requested or given in
the present case, see id., but the lack of a curative instruction is
unsurprising because Defendant testified. And even if a curative
instruction were appropriate, we have already determined this
issue was not preserved. Furthermore, any presumed error in
the prosecutor’s questions would not have been obvious to the
trial court, thus, the trial court would not have sua sponte given
such an instruction.

¶26 Whether a prosecutor’s comment was likely construed as
referring to silence is frequently considered in the context of a
defendant’s decision not to testify at trial. See Tillman, 750 P.2d at
554 (plurality opinion) (“Indirect references to a defendant’s
failure to testify are constitutionally impermissible if the
comments were manifestly intended to be or were of such a
character that the jury would naturally and necessarily construe
them to be a comment on the defendant’s failure to testify.”);
State v. Hales, 652 P.2d 1290, 1291–92 (Utah 1982) (considering
whether a prosecutor’s statement was “of such character that a
jury would naturally and necessarily construe it to amount to a
comment on the failure of the accused to testify” (citation and
internal quotation marks omitted)). But it is also an important
query when a prosecutor is accused of improperly discussing a
defendant’s post-arrest silence. In State v. Maas, 1999 UT App
325, 991 P.2d 1108, we discussed this situation at length and
highlighted cases in our jurisprudence where this issue has been
addressed. Id. ¶¶ 16–23. Ultimately, we concluded that because

(…continued)
as part of our analysis in determining the harmlessness of any
improper comments.

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 State v. Fairbourn

“the prosecution did not attempt to cast the forbidden inference
that [the defendant’s] silence equaled guilt,” the State committed
no Doyle violation.7 Id. ¶ 25; see also Doyle v. Ohio, 426 U.S. 610,
619 (1976) (holding that using a defendant’s post-Miranda silence
to impeach him is unconstitutional).

¶27 Similarly, here, the prosecutor made no “attempt to cast
the forbidden inference.” See Maas, 1999 UT App 325, ¶ 25.
Rather than asking Defendant, “Why didn’t you say anything to
the police?” the prosecutor essentially asked, “Why didn’t you
say this to the police when you did speak?” The line of
questioning was meant to suggest fabrication, as Defendant
admitted that he spoke with Detective at the hospital but did not
share his version of events. Because the questions related more
to Defendant’s version of events than to any invocation of his
right to silence, the jury would not have “naturally and
necessarily construe[d] the comment as referring to defendant’s
silence.” See Reyes, 861 P.2d at 1057 (citation and internal
quotation marks omitted); see also State v. McCallie, 2016 UT App
4, ¶ 29, 369 P.3d 103 (explaining that where a defendant “in fact
made statements to police, and the prosecutor’s improper

7. Along with this quoted language, the Maas court also based its
conclusion in part on the fact that the State did not use
“defendant’s silence to impeach her credibility.” State v. Maas,
1999 UT App 325, ¶ 25, 991 P.2d 1108. At first blush, this
reasoning seems to cut against our discussion above about the
permissible impeachment of Defendant’s credibility. See supra
¶¶ 22–23. However, the situation in Maas and the present case
deal with two very different forms of silence. In Maas, the
defendant invoked her right not to incriminate herself. But in the
present case, in addressing whether any error would have been
obvious to the trial court, we address something fundamentally
different: Defendant saying one thing but not another.
Specifically, the prosecutor elicited that when Defendant talked
to Detective he was not completely silent but was silent as to his
version of events, which Defendant then later shared at trial.

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 State v. Fairbourn

comments referred to these statements,” we could not “say that a
lay jury would naturally and necessarily have understood the
prosecutor’s reference as a comment on [the defendant’s] silence
in the Fifth Amendment sense”), cert. granted, 384 P.3d 567 (Utah
2016).

¶28 Furthermore, there was persuasive evidence of
Defendant’s guilt. Officer testified that Defendant proclaimed
Officer was about to die, supporting the intent element of the
aggravated murder charge. Four eyewitnesses testified that
Defendant raised a knife and advanced toward Officer.
Defendant admitted to having a knife and to holding it out
toward Officer, although he maintained that he did so in a
movement meant to signal surrender rather than attack.
Whether Defendant did or did not share his version of events
with Detective, invoked his right to remain silent, or actually
remained silent is all of little consequence to the result given the
evidence that was before the jury.

¶29 We therefore conclude that even if the trial court erred by
failing to intervene when the prosecutor asked the now-
challenged questions, that error would not have been obvious to
the trial court, see supra ¶ 22, and the error did not harm
Defendant. We thus reject Defendant’s challenge to the
prosecutor’s alleged comments on Defendant’s silence.

B. Questions About Witness Discrepancies

¶30 During Defendant’s cross-examination, the prosecutor
asked why other witnesses’ accounts of the evening differed
from Defendant’s: “So if you were trying to submit or surrender
to the officer and these witnesses are perceiving something else,
is it your testimony today that this is just a misunderstanding on
their part?” Defendant now argues that this was “the prosecutor
improperly examin[ing him] as to the veracity of other
witnesses’ testimony.”

¶31 “Several courts have noted that it is improper to ask a
criminal defendant to comment on the veracity of another

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witness.” State v. Emmett, 839 P.2d 781, 787 (Utah 1992).
“However, a prosecutor may ask questions that seek ‘to clarify
defendant’s testimony in relation to prior testimony of another
witness.’” State v. Thompson, 2014 UT App 14, ¶ 48, 318 P.3d 1221
(quoting State v. Taylor, 884 P.2d 1293, 1299 (Utah Ct. App.
1994)).

¶32 In Thompson, we decided that “[t]he prosecutor’s
questions were appropriate” when, “[i]n cross-examining
Thompson, the prosecutor reviewed Thompson’s and Friend’s
testimonies” before “suggesting a discrepancy in the testimony.”
Id. ¶¶ 49–50. The prosecutor went on to state,

“So, one of those wasn’t true. Which one was the
truth? It was either you got up at 9:00, or you got
up at 7:15. Or maybe it was something else. Why
don’t you tell us what happened.” The prosecutor
later returned to the issue and asked, “You think
[Friend is] wrong about that?”

Id. ¶ 49. We concluded that because “the prosecutor was not
suggesting perjury or asking Thompson to comment on Friend’s
character or motivations” but instead “was highlighting a
perceived discrepancy in the testimony and asking Thompson to
clarify his testimony in relation to Friend’s testimony,” the
questions were not improper. Id. ¶ 50.

¶33 We are confronted with similar facts here. The prosecutor
did not say that Defendant was lying or ask Defendant to decide
whether the other witnesses had lied. Instead, the prosecutor,
like the prosecutor in Thompson, highlighted perceived
discrepancies between Defendant’s and the other witnesses’
testimonies and asked Defendant to clarify. See id.

¶34 Because the prosecutor’s questions were proper, there
was no error, let alone one that could have been obvious to the
trial court. See State v. Bond, 2015 UT 88, ¶ 15, 361 P.3d 104
(explaining that for an appellate court to conclude plain error

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 State v. Fairbourn

occurred, there must have been an error). Accordingly,
Defendant’s claim of plain error fails.

C. Questions About Officer’s Mindset

¶35 The third and final source of claimed prosecutorial
misconduct originated in the State’s examination of Officer. The
prosecutor asked Officer what was going through his mind
during his encounter with Defendant. See supra ¶ 10. Defendant
argues that this line of questioning and the associated answers
“unfairly appealed to the jury’s sympathies, passions, and
prejudice” by focusing the jury’s attention on Officer’s “fear of
dying and his family, how they depended on him, and his need
to get home to them.”8 The State counters that the question was
proper because it helped establish the “credibility and
plausibility” of Officer’s testimony. We conclude that the
question was improper but harmless.

¶36 We can see no permissible use of Officer’s testimony
regarding thoughts of his family when he encountered
Defendant. Whether he had a family and whether that family
relied on him is of little consequence when the jury was tasked
with deciding whether Defendant attempted to murder Officer.9

8. Defendant’s argument presents as a hybrid between a
prosecutorial-misconduct claim and a challenge under rule 403
of the Utah Rules of Evidence. What Defendant seems to argue is
that the prosecutor committed misconduct by deliberately
introducing evidence that would be inadmissible under rule 403.
But no rule 403 objection was lodged at trial, and thus the same
plain-error standard applies whether we consider this claim one
of prosecutorial misconduct or one of evidentiary error.

9. Whether Officer actually feared that Defendant was trying to
kill him is a different question. Officer ultimately shot
Defendant, and evidence of Officer’s state of mind could be
relevant to show that his use of force was not simply arbitrary,
(continued…)

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 State v. Fairbourn

And we have repeatedly held that a prosecutor may not call
jurors’ attention to matters that the jury would not be justified in
considering when determining its verdict. See, e.g., State v.
Campos, 2013 UT App 213, ¶ 50, 309 P.3d 1160. A jury may not
find a defendant “guilty out of vengeance or sympathy for the
victim rather than based on what the facts and the law
required.” Id. ¶ 52.

¶37 But while the jury should not have heard discussion of
Officer’s fear and concern for his family, we are not convinced
that doing so influenced the verdict. The trial court instructed
the jury that it should not allow “bias, sympathy, or prejudice”
to affect the verdict. In the State’s closing argument, the
prosecutor reiterated the instruction, urging the jury to base its
verdict on the facts, “however bad you may feel for Officer.”
Generally, absent evidence to the contrary, we “presume that the
jury follows such instructions.” State v. Wright, 2013 UT App 142,
¶ 42, 304 P.3d 887.

¶38 Furthermore, as we have already discussed, the evidence
of Defendant’s guilt was strong. See supra ¶ 28. Under the
circumstances, we will not reverse for plain error because the
error was harmless. See State v. Dunn, 850 P.2d 1201, 1208–09
(Utah 1993) (outlining the elements of a successful plain-error
challenge, including that “the error is harmful, i.e., absent the
error, there is a reasonable likelihood of a more favorable
outcome for the appellant” and concluding that “[i]f any one of
these requirements is not met, plain error is not established”).

(…continued)
both as background information and to support Officer’s
credibility where there was conflicting testimony about the
threat posed by Defendant. The relevance of such evidence is
addressed more specifically infra ¶¶ 44–46. But the information
actually elicited here went beyond that narrow issue into
forbidden territory.

20141149-CA 19 2017 UT App 158
 State v. Fairbourn

II. Twenty-One-Foot Rule

¶39 The final issue on appeal relates to Officer’s testimony
regarding the twenty-one-foot rule. Defendant argues that this
testimony “is inadmissible expert testimony. It is also
irrelevant.”

¶40 The challenged testimony came as the result of a question
regarding the distance between Defendant and Officer when
Defendant produced the knife. Officer told the prosecutor the
distance was “from me to you,” when Officer was “sitting at the
witness stand and [the prosecutor was] standing at the witness
podium.” The prosecutor asked, “Is there anything about the
distance between you and the defendant that caused you
concern at this point?” Officer began to answer by saying,
“There is. So I went through a federal training program. They
teach you a rule with edged weapons,” but before Officer could
finish, defense counsel objected. During a sidebar discussion,
Defense counsel argued that “his state of mind is not relevant,
you know, to this case.”10 He also initially argued that Officer
was not qualified to testify as to “what studies have shown or
what any other officer or other officers have been instructed or
anyone in the state of Utah would have been instructed if they
were a peace officer.” But defense counsel made clear that if the
testimony instead pertained to whether “he was instructed that
within 21 feet there’s a danger zone or something of that

10. Beyond this initial assertion that the challenged testimony
was irrelevant, defense counsel continued to object on this basis
throughout the sidebar conversation and after the State’s proffer
of what Officer’s testimony would be. He said, “I still don’t see
how it’s relevant,” “I don’t think it’s relevant,” “I object to . . . the
whole answer as relevant, which is going to his state of mind
rather than the defendant’s,” and, “I’m sorry to be repetitive but
just to be sure, my objection on relevance is that his state of
mind, whether he felt threatened, is not an element of the offense
and it’s not . . . relevant.”

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 State v. Fairbourn

nature,” his objection would be “to the whole relevancy of it.”
Outside the presence of the jury, Officer proffered that he
intended to explain that “when I went through the academy,
they taught me that anything less than 21, 21 feet or less is a, is a
kill zone.” After this proffer, defense counsel said, “That would
take care of my other objections.”11

¶41 By indicating that his “other objections” were resolved—
in context, meaning objections other than to relevance—defense
counsel abandoned any challenge on the basis of expert
testimony. And when the jury returned, Officer testified that
when he went through training, “they instructed [him] that
anything within 21 feet is a kill zone. Before somebody could get
a shot off, they could actually get stabbed within that distance.”
In other words, Officer provided precisely the sort of testimony
to which Defendant objected on “the whole relevancy of it.”

¶42 By tying his expert-testimony objection to certain
hypothetical testimony, Defendant’s objection on this basis was
abandoned when the actual testimony was given and differed
from the hypothetically objectionable testimony. See State v.
McNeil, 2013 UT App 134, ¶ 23, 302 P.3d 844 (“A claim is not
preserved for appeal if a party initially objects but later, while
‘the wheel’s still in spin,’ abandons the objection and stipulates
to the court’s intended action.” (citation omitted)), aff'd, 2016 UT
3, 365 P.3d 699. Thus, any argument that the court committed

11. Defense counsel later briefly addressed expert testimony by
suggesting that articulating a rule that it “constitutes a threat if
you are within 21 feet” would be “in the nature of expert
testimony.” The trial court clarified, “I’m saying he can’t say all
officers are trained in this regard. He can say that’s what he was
trained on in [training], right?” The prosecutor weighed in, and
defense counsel’s only response was that “whether he felt
threatened[] is not an element of the offense and it’s not . . .
relevant.”

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 State v. Fairbourn

error by allowing Officer to testify as an expert is unpreserved,
see id., and we do not address it further.

¶43 On the other hand, Defendant’s relevance objection was
clearly preserved. See supra ¶ 40 note 10. And we will therefore
consider the merits of Defendant’s argument on appeal that the
allowed testimony was irrelevant.

¶44 Evidence is relevant where it “has any tendency to make a
fact more or less probable than it would be without the
evidence” and where “the fact is of consequence in determining
the action.” Utah R. Evid. 401. “[E]vidence that has even the
slightest probative value is relevant under the rules of evidence.”
State v. Reece, 2015 UT 45, ¶ 64, 349 P.3d 712 (citation and
internal quotation marks omitted). Officer’s testimony about the
twenty-one-foot rule had probative value because it lent
credibility to his version of events. As the trial court said, it
helped explain why Officer reacted to the situation in the way
that he did—by shooting Defendant.

¶45 Several witnesses testified at trial. “Whether or not these
witnesses were credible was a fact of consequence in considering
whether [Defendant] was guilty[.]” See State v. Calliham, 2002 UT
87, ¶ 38, 57 P.3d 220. The jury was tasked with finding the truth
between two different stories. In one, Defendant was
threatening. He yelled that Officer was “about to fucking die,”
pulled out a large knife, and lunged at Officer. Officer
responded by shooting Defendant. In the other, Defendant never
made such a verbal threat and instead carefully showed Officer
his knife in an attempt to surrender. It seems logical that a police
officer who shot a civilian because he felt threatened would be
considered more credible than a police officer who shot a civilian
who was attempting to surrender. By explaining to the jury one
of the reasons Officer felt threatened, he was able to bolster his
credibility. For this reason, Officer’s testimony regarding his
training with the twenty-one-foot rule was relevant. Cf. id.
(concluding that photographs were relevant because of their
“connection with the testimony of witnesses whose credibility

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 State v. Fairbourn

was in question” and holding “that the trial court did not abuse
its discretion in finding the photographs relevant”).

¶46 Because we agree with the trial court that testimony
regarding the twenty-one-foot rule was relevant to show why
Officer shot Defendant, and because that explanation supported
the credibility of Officer’s version of events, we cannot say that
the trial court abused its discretion by allowing the testimony. 12

CONCLUSION

¶47 We are not persuaded that the prosecutor’s conduct at
trial constituted plain error that harmed Defendant. We are
likewise unpersuaded that the trial court abused its discretion in
allowing Officer to testify regarding the twenty-one-foot rule.
For these reasons, we will not disturb the jury’s verdict.

¶48 Affirmed.

12. Lumped in with his discussion of the twenty-one-foot rule,
Defendant asserts that “admission of this evidence and the harm
caused by the prosecutor’s misconduct constitutes cumulative
error requiring the reversal of [Defendant’s] conviction.” Even if
we believed Defendant’s cumulative-error claim were properly
and thoroughly briefed, a claim of cumulative error requires a
demonstration that the cumulative effect of several errors
undermines our confidence that Defendant had a fair trial. See
State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993). We have
presumed two errors for purposes of our analysis, see id., but
those presumed errors do not combine to undermine our
confidence in Defendant’s conviction given the strength of the
State’s evidence. Several witnesses testified that Defendant
lunged at Officer with a large knife, and this testimony supports
Defendant’s conviction, even when all presumed errors are
taken into account.

20141149-CA 23 2017 UT App 158