This opinion is subject to revision before final

p ublication in the Pacific Reporter

20 20 UT 41

IN THE



## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

T HE S TATE OF U TAH
, Respondent

,

v.

C ARLOS W ALTER A RGUETA

, Petitioner

.

No. 20180814

Heard November 13, 2019

Filed J uly 2 , 20 20

On Certiorari to the Utah Court of Appeals

Third District

, Salt Lake

The Honorable Mark S. Kouris

No. 151906605

Attorneys:

Sean D. Reyes, Att’y Gen., Christopher D. Ballard,

Asst. Solic. Gen., Sandi Johnson, Salt Lake City, for respondent

Teresa L. Welch , Nathalie S. Skibine , Salt Lake City, for petitioner

J USTICE H IMONAS authored the opinion of the Court, in which

C HIEF J USTICE D URRANT and J USTICE P EARCE joined.

A SSOCIATE C HIEF J USTICE L EE filed an opinion concurring in part

and concurring in the judgement,

in which J USTICE P ETERSEN joined

.

J USTICE H IMONAS , opinion of the Court:

INTRODUCTION

¶1 Carlos Walter Argueta was caught in the middle of the night in A.C.’s a partment. At the scene, s he complained to a police

officer that Argueta had inappropriately touched her. That night,

also at the scene, and after invok ing his Miranda rights, Argueta refuted the allegation and offered a short

, innocent explanation ofS TATE v. A RGUETA

Opinion of the Court

2 what had occurred. He was later charged with burglary and

forcible sexual abuse. At trial, he elaborated upon his prior explanation, while A.C. and other witnesses offered testimon y to the contrary

. During the trial, the State intr oduced two prior bad acts that Argueta committed in an attempt to rebut his innocent explanation. At the end of a two

- day trial, a jury convicted Argueta

on both counts

. ¶2 Argueta argues that the prosecutor’s comments at trial

about the differences between h is initial statement at the scene and his trial testimony were a violation of his constitutional right to remain silent. He also argues against the admission of the two prior

acts, claiming the ir admission prejudiced him.

¶3 We hold that any error found or as sumed in this case was not prejudicial and

, as a result, not reversible. In addition, we only

address the issues that are preserved for appeal, and Argueta failed to preserve his argument that A.C.’s eyewitness testimony regarding an earlier encounter betw een them was so unreliable as to be inadmissible

. We therefore affirm the judgment of the court of appeals and the conviction underlying it

.

BACKGROUND

¶4 On the night of June 6, 2015, A.C., her boyfrie nd ( J.W. ) and

several of their neighbors were drinking and socializing in their

next

- door neighbors ’ backyard. 1 At some point between midnight

and 2 :00 a.m. , A.C. decided to go to bed. She left the backyard by

herself and went into her apartment. J.W. stayed outside a while longer.

¶5 A.C. and J.W. live d in a studio apartment in a house that

had been converted into four separate units. Upon returning to her apartment, A.C. closed the apartment door. B ecause the apartment door locked automatically, she left her key in the door’s lock, so
J.W.

— who did not have a key

— could enter the apartment without waking her

. She then undressed and got into her bed and under the

covers

. With the television on, she drifted into sleep

. While she was “on the verge of getting to sleep,” in “that plac e between deep sleep

and still aware

, ” A.C. felt someone “stroking” her vagina and

__________________________________________________________ 1 “When reviewing a jury verdict, we examine the evidence and all reasonable inferences in a light most favorable to the verdict, reciting the facts accordingly. We present conflicting evidence only when necessary to understand issues raised on appeal.” Stat e v. Griffin , 2016 UT 33, ¶ 2 n.2, 384 P.3d 186 (citation omitted) (internal quotation marks omitted).Cite as: 2020 UT 41

Opinion of the Court

3 “rubbing” her butt ocks

. A.C. was facing a wall and her eyes were

closed

, so she could not see who touche d her. S he figured that it

was J.W. I t was not.

¶6 S ome short but unknown time after A.C. went inside

, J.W.

decided to retire to bed too. He came back to the apartment and saw the door slightly ajar , with the key still in the lock. Once he

looked inside

, he saw A.C. asleep, but not covered , which was

unusual for her. Whi le he was still standing at the doorway, a man came running towards him from inside the apartment. Startled,
J.W. stopped the man, and managed to hold him up against a

dresser while he repeatedly shouted

, looking for an explanation for

t h e man’s presence i n the apartment.

¶7 The shouting awoke A.C. She saw that J.W. was holding a man, who turned out to be Argueta. A t that time

, she could not see his face clearly

. She told J.W. that the man had touched her. J.W. told her to call the neighbors and wrestled the man in to the house’s hallway. A.C. followed them, finally saw Argueta , and punched

him before running out to find the neighbors and call the police. Argueta kept apologizing and tried to escape. After he mana ged to get out of J.W. ’s grip, two other neighbors arrived and helped J.W. pin him down on the house’s front lawn until the police arrived

and arrested him.

¶8 A fter a police officer read Argueta his Miranda rights and he invoked them, Argueta overheard A.C. telling the officer that Argueta had touched her. Argueta retorted that A.C. was “ a liar,

that he [had] met her at a bar,

. . . that the keys [had been] left in the door, and that he had left the keys in the house.” 2 The State charged Argueta with burglary and forcible sexual abuse.

¶9 At trial, Argueta presented a more elaborate version of the

events of that night

. He testified that he had met A.C. and J.H

. , her boyfriend at the time

, at a bar close to A.C.’s apartment a year to a

year

- and

- a

- half before the incident. 3 They had talked and dr u nk

until late. Before the bar closed, Argueta had offered J.H. a shot

,

__________________________________________________________ 2 There is some discrepancy in the record about whether Argueta made his statements before or after the police officer read

him his Miranda rights. But the State and Argueta stipulated on appeal that Argueta made the statement after invoking Miranda

. State v. Argueta , 2018 UT App 142, ¶ 8 n.2, 429 P.3d 764. We follow that stipulation here.

3 In all relevant times to this case, A.C. lived in t he same

apartment.S TATE v. A RGUETA

Opinion of the Court

4 which he had accepted and dr u nk

. T he couple had then asked Argueta to give them a ride home. He had agreed, and when they

had got ten to the ir apartment

, A.C. and J.H. had invited him in. J.H.

had asked Argueta if he could borrow twenty dollars, and Argueta

had g iven him the money. J.H. had to ld him

, “ [ w ] henever you want to come, I owe you $20.”

¶10 Argueta testified that he had gone by the apartment “ [ f ] ive or six times” to get the money back

, usually in the early morning

hours . But before the night of the charged act, he had “never attempted to enter the home because there were people in front, but [A.C. and J.H. ] were not there.” 4 On the night of the charged act

, Argueta decided to enter the house

, where h e saw the apartment door open and the keys in the lock. He decided to enter the house

and put the keys in the apartment as “a good deed.” According to his testimony, a s he put the keys onto the dresser and turned to
leave, J.W. came into the apartment.

¶11 Before trial, the State sought to admit evidence of several prior ba d acts allegedly committed by Argueta, under rule 404(b) of the Utah Rules of Evidence. After a hearing, the trial court found two of the prior bad acts admissible, but only to rebut any testimony by Argueta “as to his intent with regard to his entry, if

a ny, into the [apartment].” The two prior bad acts were a 2010 incident in which Argueta was found trespassing near another

woman’s house and entered a plea in abeyance 5 ( the trespassing incident) and a 2014 incident in which A.C. claimed she saw Argueta peeping into her apartment and confronted him ( the peeping incident).

¶12 The jury convicted Argueta as charged and the court later

sentenced him to t w o concurrent terms of one to fifteen years in prison. Argueta appealed, and the court of appeals aff irmed his

conviction. State v. Argueta , 2018 UT App 142, ¶ 56

, 429 P.3d 764.

Pertinent here , the court of appeals held that the prosecutor did not

__________________________________________________________ 4 There is no testimony that Argueta knew that A.C. and J.H. separated, or that he knew that A.C. lived with J.W. at the time of the charged act.

5 A plea in abeyance “ means an order by a court, upon motion of the prosecution and the de fendant, accepting a plea of guilty or of no contest from the defendant but not, at that time, entering judgment of conviction against him nor imposing sentence upon him on condition that he comply with specific conditions as set forth in a plea in abeyanc e agreement.” U TAH C ODE § 77

- 2a

- 1(1).Cite as: 2020 UT 41

Opinion of the Court

5 violate Argueta’s right to remain silent when , during

cross

- examination and closing arguments

, she commented o n the

omissions in his initial statement at the scene. Id. ¶¶ 27, 29. Additionally, the court of appeals held that the trial court erred in admitting the trespassing incident under the doctrine of chances,

but that it was harmless error. Id. ¶¶ 40, 42. Fi nally, the court of appeals held that Argueta had failed to preserve his argument that the peeping incident should have been excluded from evidence since A.C.’s eyewitness testimony was unreliable

. 6 Id

. ¶ 46.

¶13 Argueta filed a certiorari petition on these three issues

, which we granted. We exercise jurisdiction under Utah Code

section 78A

- 3

- 102(3)(a).

STANDARD OF REVIEW

¶14 On certiorari, “ we review the decision of the court of appeals and not that of the [trial] court.” State v. Hansen , 2002 UT
125, ¶ 25, 63 P.3d 650 (citation omitted) (internal quotation marks omitted)

. And “ w e review the decision of the court of appeals for

correctness.” Id. (citation omitted) (internal quotation marks omitted)

. But “[t] he correctness of the court of appeals ’ decision turns, in part, on whether it accurately reviewed the trial court ’ s decision under the appropriate standard of review.” State v. Apodaca , 2019 UT 54, ¶ 25, 448 P.3d 1255 (citation omitted) (internal quotation marks omitted)

. ¶15 In this case, one iss ue

— the alleged constitutional

violation

— should be reviewed for correctness. State v. Hernandez

, 2011 UT 70, ¶ 3, 268 P.3d 822. The two other issues involve the trial
court’s decision to admit evidence, which we “will not overturn .

. . absent an abuse of d iscretion.” State v. Cuttler , 2015 UT 95, ¶ 12, 367

P.3d 981. “ But whether the [trial] court applied the proper legal

standard ” in assessing the admissibility of that evidence is a question of law that we review for correctness.” Id. (citation omitted) (internal quotation marks omitted)

.

ANALYSIS

¶16 We granted certiorari on three questions. They are whether the court of appeals erred in concluding (1) that the

cross

- examination about omissions in A rgueta’s statement at the

scene did not violate his right to remain silent

, (2) that Argueta was

__________________________________________________________ 6 Argueta made additional arguments on appeal, which were also rejected. Argueta , 2018 UT App 142, ¶¶ 47

– 5 5 . He did not raise those arguments in his petition for writ of certiorari, and we

therefore do not address them

.S TATE v. A RGUETA

Opinion of the Court

6 not prejudiced by the erroneous admission of the trespassing

incident

, and (3) that Argueta f ailed to preserve his challenge to the admission of the peeping incident.

¶17 Like the court of appeals, we find that Argueta failed to

preserve his argument against the admission of the peeping

incident. And w e cannot determine whether the trial court erred i n admitting the trespassing incident under the doctrine of chances due to lack of information as we explain below. But even if we
assume error, it was harmless.

¶18 Finally, w e do not determine if the prosecutor’s comments about Argueta’s omissions in his statement at the scene constitute

a constitutional violation . That is because, even a ssuming that such

a violation occurred, we find that it was harmless beyond a reasonable doubt and did not pr ejudice Argueta. E ven without

mention ing these omissions, the version that Argueta presented at trial cannot credibly stand when confronted with the versions offered by A.C. and the other prosecution witness es , the
circumstantial evidence, and the peeping incident.

¶19 We , therefore, affirm the court of appeals ’ judgment.

I

. PRIOR BAD ACTS EVIDENCE

¶20 In a pretrial ruling, the trial court held that the prior bad

acts evidence

— the peeping incident and the trespassing incident

—

w ould be admissible , but only “if

. . . the defendant puts his intent of going inside of the apartment in play.” Because Argueta ’s trial testimony did raise an issue about his intent in entering the

apartment

, both incidents were admitted into evidence. 7

¶21 Argueta claims that admitting the evidence of the peeping and trespassing incidents was both erroneous and prejudic ial

. The court of appeals held that Argueta did not preserve his challenge

t o the peeping incident and that

, although the trial court erred in admitting the trespassing incid ent, it was harmless error

. State v. Argueta , 2018 UT App 142, ¶¶ 41, 46, 429 P.3d 764. We agree with the court of appeals ’ outcome and some of its analysis , as we explain below

. We first address the challenge to the admissibility

of the peeping incident and hold that it was not preserved

. W e then

address the trespassing incident

.

__________________________________________________________ 7 Because Argueta’s defense was that his intent of entering the apartment was innocent, Argueta’s trial attorney asked him about the trespassing incident on direct examination , even before the State brought it up.Cite as: 2020 UT 41

Opinion of the Court

7 A. The Peeping Incident

¶22 The peeping incident occurred in 2014

. A.C. was laying in her backyard late one night when she saw a man peeping in to the

window s of her and her neighbor’s apartments

. She hid as she

continued to watch the man

. As the man moved away to the house

next

- door, A.C. ran into her apartment and alerted J.H. Together,

the two confronted the man. The man was Argueta. 8 When the police arrived at the scene of the charged act at issue here , A.C. did not mention the peeping incident from 2014 . But in her testimony

, she said that once she saw Argueta in the lit hallway

, she recognized him.

¶23 In his motion to suppress the evidence, Argueta argued that the peeping evidence “ would greatly confuse the issues before the jury,” and w ould require expert eyewitness testimony because of the “many problems inherent in eyewitness identification testimony.” He submitted that the evidence is inadmissible under

Rule 403 of the Utah Rules of Evidence because “the introduction

and confrontation of the State’s proposed 404(b) evidence would confuse the issues before the jury and cost a great deal of time and
other resources, and [because] it is only tangentially related to the central issues of the State’s allegations

. ”

¶24 Argueta now claims that evidence of the peeping incident was inadmissible under rule 403 because A.C.’s eyewitness testimony was unreliable. But “ [a] s a general rule, claims not raised

before the trial court may not be raised on appeal.” State v. Holgate

, 2000 UT 74, ¶ 11, 10 P.3d 346

. T o preserve an issue for appeal, the “issue must be presented to the trial court ” in a way that gives the

trial court “an opportunity to rule on that issue.” Brookside Mobile

Home Park

, Ltd. v. Peebles , 2002 UT 48, ¶ 14, 48 P.3d 968. When

eval uating if the trial court had such an opportunity, a court considers whether the party raised the issue timely and specifically

and whether it introduced supporting evidence or relevant authority. Winward v. State

, 2012 UT 85, ¶ 9, 293 P.3d 259. Importantly here, “ if a party makes an objection at trial based on one ground, this objection does not preserve for appeal any

__________________________________________________________ 8 Because we conclude that the challeng e to the peeping incident admission was unpreserved, we do not outline the incident any further here. However, in our analysis below

, we expand and detail
the incident, as it relates to whether another assumed error in Argueta’s trial was harmless beyond a reasonable doubt. See infra
¶¶ 61

– 65

.S TATE v. A RGUETA

Opinion of the Court

8 alternative grounds for objection.” State v. Low , 2008 UT 58, ¶ 17,

192 P.3d 867.

¶25 Argueta argued to the trial court that A.C.’s i dentification

was inadmissible because “every factor weighs against a good [ ey e witness ] identification.” But he never specifically argued that

it should be inadmissible under r ule 403 because it was unreliable

. Instead, he argued that rule 403 blocked the eyewitness

identification because of the burden that it would impose on the

trial : i t would “shift the jury’s focus

, ” and the court would “end up spending more time trying the [peeping incident].”

¶26 Argueta now asks us to read different parts of his argument at trial together, to form a timely, specific

, and authority

- supported argument for constitutional inadmissibility of the identification due to unreliability. We cannot bend our preservation requirements that far . Argueta’s inadmissibility

argumen t below did not hinge on the eyewitness testimony’s unreliability but rather on its potential effect on the focus of the

trial

. The trial court did not understand Argueta’s argument as a n admissibility challenge based on eyewitness unreliability , but only as a challenge to the weight attributed to the tes t i mony

. At the end

of the hearing

, the trial court said that “there’s an eyewitness issue there and we’re going to allow an expert that the defense will bring

in if they choose to.” Argueta did not ask for a ruling on the admissibility argument he now claims he made, and his counsel

even drafted the trial court’s order

, which also did not make any mention of this argument. The trial court thus had no “opportunity to rule” on whether evidence of the peeping incident was

inadmissible under rule 403 because the eyewitness testimony was unreliable.

¶27 Argueta also asserts that the trial court ruled on the eyewitness identification issue, an d therefore any objection that the issue has not been preserved for appeal is “conclusively over[come]

. ” Fort Pierce Indus. Park Phases II, III & IV Owners Ass’n v. Shakespeare , 2016 UT 28, ¶ 13, 379 P.3d 1218 ( citation omitted)

. That ruling, according to Argue ta , happened when the trial court remarked during a hearing that the “strength” of the identification

evidence wa s “very thin

. ” But Argueta attaches too much weight

to this off

- hand remark

— a remark made while the trial court was posing “hypothe t icals” in an attempt to understand the parties’

argument s

. Indeed, moments later the trial court judge said that he “obviously [didn’t] know the facts.” In any event, the trial court did

not rule on the issue. And so this argument, too, fails.Cite as: 2020 UT 41

Opinion of the Court

9 ¶28 For these reasons , we conclude that the court of appeals correctly held that Argueta failed to preserve his argument that evidence of the peeping incident was inadmissible under rule 403

because of eyewitness testimony unreliabi lity. And thus we do not

address whether the alleged unreliability of the eyewitness testimony makes the peeping incident inadmissible under rule 403

.

B. The Trespass ing Incident

¶29 The trespassing incident happened in 2010. The police

found Argueta outside a home near A.C.’s apartment. The police

had been called to that location because a woman had complained

that someone was in her home. The police found the doors and

windows locked and assured the woman that no one had entered

her home. But the police foun d Argueta outside the home; h e claimed he went near the house to urinate. He was later charged with trespassing and pled guilty in abeyance

. ¶30 Argueta argues that the trial court erred in admitting evidence of the trespassing incident under the doctrine of chances

and that the admission prejudiced him. The court of appeals agreed with Argueta that the admission was erroneous but held that it was not prejudicial. Argueta , 201 8 UT App 142, ¶ 41. We agree with the court of appeals ’ outcome because we find that the admission of

the trespassing incident was not prejudicial to Argueta

. However, we cannot determine whether the trial court erred in admitting the trespassing incident under the doctrine of chances due to lack of

information

, as we explain below. W e take this opportunity to

further clarify the application of the doctrine of chances and the burden that the party seeking to admit evidence under the doctrine

must meet

. ¶31 Rule 404(b) of the Utah Rules of Evidence prohibits the admission into evidence of a “crime, wrong, or other act” to “ prove a person’s character in order to show that on a particular occasion the person acted in conformity with the character.” U TAH R. E VID

. 404(b). It does, however, allow the admission of crimes, wrongs,

and other acts for other non

- propensity purposes, such as “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Id.

¶32 To determine, under rule 404(b), whether prior bad acts are admissible to rebut, for example, defenses based on mistake or lack
of intent, court s appl y the doctrine of chances. State v. L owther

, 2017

UT 34, ¶ 23

, 398 P.3d 1032

. The doctrine of chances is an analytical

framework that “ rests on the objective improbability of the same

rare misfortune befallin g one individual over and over.” State v.S TATE v. A RGUETA

Opinion of the Court

10 Verde

, 2012 UT 60, ¶ 47, 296 P.3d 673

, abrogated on other grounds by

State v. Thornton

, 2017 UT 9, ¶ 53, 391 P.3d 1016 (citation omitted). A proper use of the doctrine assists to discern whether the inference from the prior bad act is permissible or not. See i d. ¶ 51.

¶33 In Verde , we laid out some criteria for the application of the

doctrine of chances . There we also acknowledged the difficult and sensitive nature of the doctrine’s inquiry. Id. ; id. ¶¶ 55, 57

– 61

. Recent case law and law review publications have highlighted the difficulty of the doctrine’s application in different circumstances

. See

, e.g. , State v. Lane , 2019 UT App 86, ¶¶ 36

– 50, 444 P.3d 553 (Harris, J., concurring); State v. Murphy , 2019 UT App 64, ¶¶ 45

– 65, 441 P.3d 787 (Harris, J., concurring); Edward J. Imwi nkelried, Criminal Minds: The Need to Refine the Application of the Doctrine of Objective Chances as a Justification for Introducing Uncharged

Misconduct Evidence to Prove Intent , 45 H OFSTRA L. R EV

. 851 (2017). The concerns raised in the court of appeals ’ case law and law review publications merit careful consideration. We therefore recently charged our advisory committee on the Utah Rules of Evidence to propose recommendations to address this issue. We will also continue clarifying the doctrine’s applicati on in our case law, as relevant issues come up, as we do here.

¶34 One such needed clarification concerns the articulation of

the “rare misfortune” that triggers the doctrine’s application. “[C]are and precision are necessary to distinguish permissible and imp ermissible uses of evidence of prior bad acts, and to limit the

factfinder ’ s use of the evidence to the uses allowed by rule.” Verde

, 2012 UT 60, ¶ 55. The care and precision begin with the party seeking to admit a prior bad act under the doctrine of chanc es. Th is party must articulate the “ rare misfortune ” that triggers the

doctrine’s application. Without a clear articulation of what event is being evaluated it is difficult to make sure that a prior bad act is

admissible under the doctrine for a permissible inference

. ¶35 “[F]or evidence to be admitted under the doctrine of chances, it must meet four foundational requirements: materiality, similarity, independence, and frequency.” State v. Lopez , 2018 UT 5,
¶ 54 , 417 P.3d 116

. When a trial cour t is c onfronted with evidence

that the State intends to admit under the doctrine of chances , it must assess these foundational requirements to decide its admissibility

. 9 Id. It cannot simply rely on the similarity between

__________________________________________________________ 9 Such assessment is only the first step to admission of evidence.
Even if evidence is admitted under the doctrine of chances, the (continued

. . .)Cite as: 2020 UT 41

Opinion of the Court

11 the charged act and the prior bad acts. See Imwinkelried, 45

H OFSTRA L. R EV

. at 856

– 857, 872.

¶36 T he court of appeals held that two of the foundational requirements for the doctrine ’s application

— similarity and frequency

— were not met. 10 Argueta , 2018 UT App 142, ¶ ¶ 38

– 39. Because the State has not properly articulated what “ rare misfortune ” is examined here, we cannot fully agree with the court of appeals , as we explain below.

¶37 “Similarity and frequency are both important inputs for determining [objective] improbability; the less similar the acts, the more probable it is that they would occur in the general population. And the less frequently they occur in the general population, the more it is objective [ ly ] improbabl [ e ] that so many incidents would occur randomly.” Lopez

, 2018 UT 5, ¶ 59 n.12 (alterations in original) (citation omitted) (internal quotation marks omitted). Similarity and frequency, therefore, “ interact with each o ther to become a safeguard against the doctrine of chances becoming a

work

- around for the admission of otherwise improper propensity

evidence.” Id. ¶ 57. To evaluate them both, it is important to

articulate the improbable “rare misfortune

. ”

¶38 To satisfy the foundational requirement of similarity, t he

s imilarity of the past act need not be “as great as that necessary to prove identity under a ‘pattern’ theory

, ” but it still needs to be significant enough to “suggest a decreased likelihood of

coinci dence.” Verde , 2012 UT 60, ¶ 58

. It must be “sufficient to dispel any realistic possibility of independent invention.” Id. ¶ 59 (quoting Mark Cammack, Using the Doctrine of Chances to Prove

Actus reus in Child Abuse and Acquaintance Rape : People v. Ewoldt

Reconsidered

, 29 U.C. D AVIS L. R EV

. 355, 405

– 06 (1996)) (internal quotation marks omitted) ; s ee also Lowther

, 2017 UT 34, ¶ 36.

__________________________________________________________ court must “proceed to assess the evidence under rules 402 and

403.” State v. Lowther

, 2017 UT 34, ¶ 32. Because the evidence here

does not survive the rule 404(b) inquiry, we need not go any further.

10 The court of appeals found that these two requirements were not met and did not address the other factors: materiality and independence. A rgueta , 2018 UT App 142, ¶ 35. The court of appeals did not need to address the two other requirements.

Because the State needs to meet all requirements, finding that it had not met even one of the requirements means that the State failed to

meet its burde n under the doctrine.S TATE v. A RGUETA

Opinion of the Court

12 ¶39 Under the frequency requirement, the defendant “ must

have been accused of the crime or suffered an unusual loss more frequently than the typical person endures such losses accidentally

. It is this infrequency that justifies the probability analysis underlying the doctrine of chances.” Verde

, 2012 UT 60, ¶ 61 (emphasis omitted) (citation omitted) ( internal quotation marks omitted). The number of incidents carries weight in the analysis of frequency

. B ut the number of occurrences and their temporal proximity are usually not enough to establish the frequency requirement

. The assessment of frequency cannot be based solely

on intuition

. To evaluate the frequency of a “ rare misfortune, ” a

court must ascerta in some benchmark for the “typical person [ ’ s] ”

endurance of the crime or unusual loss through testimony or judicial notice

. See Lane , 2019 UT App 86, ¶ 49 (Harris, J., concurring)

. Without such a benchmark

, the frequency require ment in Verde is only empty words.

¶40 With respect to the similarity prong, h ere, the State has not clearly articulated what “ rare misfortune ” the trespassing incident

evinces . At the trial court hearing, the State argued that “part of [the trespassing incident ], kind of falls under th [e] doctrine of chances,” because Argueta’s “MO” is to “go[] inside to commit the

assault.” We cannot discern what improbable event the State is highlighting with this statement . It could be “being discovered on a young woman’s property in the early hours of the morning,” “being discovered inside a young woman’s house,” or perhaps

“ having to urinat e near or at a young woman’s house at the early

hou rs of the morning .” It could be all these misfortunes or a different one altogether

. ¶41 And b ecause the State has not presented such a clear “rare

misfortune” to the trial court, the court of appeals

, or us, we cannot properly evaluate the foundational simila rity requirement. It would be futile to point to the dissimilarities between the trespassing incident and the case at hand because some may not be relevant to the similarity assessment

, given the rare misfortune we

ev a luate

. ¶42 For a similar reason

, it is unhelpful to analyze the frequency question here either. The State made no effort to establish a benchmark for a “typical person

, ” even if we could identify what “rare misfortune” we were assess ing

. The State did

, however

, question Argueta’s innocen t urination explanation at

trial . T he State asked Argueta questions about his repeated urination in public. Even if we assume that this questioning is

related to the not

- clearly

- articulated “rare misfortune,” it wouldCite as: 2020 UT 41

Opinion of the Court

13 not help the State ’s argument. That li ne of question ing only showed that Argueta was repeatedly caught urinating in public on occasions and locations unrelated to young women ’ s properties . It therefore strengthens Argueta’s innocent explanation that he urinated publicly whenever he had the need to do so, and does not necessarily make it improbable that sometimes it would be by or

on a young wom a n’s property

. ¶43 While we agree with the court of appeals ’ intuition that “[o]ne trespassing conviction does not increase the statistical likelihood that on a different occasion Argueta entered [A.C.’s] apartment with unlawful intent

, ” Argueta , 2018 UT App 142, ¶ 40

, we cannot affirm it due to the lack of information before us, as we explain above

. ¶44 But even if we assume error, “[f]or an error to require reversal, the likelihood of a different outcome must be sufficiently high to undermine confidence in the verdict.” State v. Knight , 734 P.2d 913, 920 (Utah 1987)

. “ The burden of showing harmfulness

no rmally rests with the complaining party. ” State v. Robertson , 932 P.2d 1219, 1227 (Utah 1997)

, overruled on other grounds by State v.

Weeks , 2002 UT 98, ¶ 25 n.11, 61 P.3d 1000

. ¶45 Below

, we find that the State has shown that another alleged error in Argueta’s trial was harmless beyond a reasonable

doubt. See infra ¶¶ 57

– 73

. Given that analysis and specifically, the overwhelming evidence presented against Argueta, even without the trespassing incident, we do not find the inclusion of the trespassing incident probative to the case. W e , therefore, agree with the court of appeals that even assuming error , it was harmless and

not reversible.

I I

. THE PROSECUTION’S COMMENTS

ABOUT ARGUETA’S STATEMENTS W ERE

HARMLESS BEYOND A REASONBLE DOUBT

¶46 Argueta’s chief complaint is about the prosecutor’s comments during cross

- examination and closing arguments regarding the differences between Argueta’s initial explanation to the police and his trial testimony.

¶47 At the scene of the charged act , and after Ar gueta invoked

his Miranda rights, Argueta spontaneously told a version of what happened. As he later recounted it, he told the police officer that A.C. was “lying[] because [he] knew her at the bar

, ” and that he found the apartment keys in the door, and “l eft the keys in the apartment.” At trial, Argueta elaborated on this version. He added

details about meeting A.C. at the bar and also testified that A.C. andS TATE v. A RGUETA

Opinion of the Court

14 J.H. previously invited him into the apartment and that they owed him money, which he had come to collect on the night of the charged act. During Argueta’s cross

- examination, the prosecutor

referred several times to the omissions in the initial statement at th e scene compared to the version Argueta presented in his testimony. She also addressed these omissions in her closing arguments

, pointing out that Argueta had not told the officer in which bar he

had met A.C. or that J.H. owed Argueta twenty dollars.

¶48 Argue ta argues that these comments violated his right to

remain silent under Doyle v. Ohio , 426 U.S. 610, 618 (1976) (“[ I]t would be fundamentally unfair and a deprivation of due process to allow the arrested person ’ s silence to be used to impeach an explanatio n subsequently offered at trial .”). In response, the State argues that the prosecutor did not comment on Argueta’s silence,

but rather about the inconsistencies between his two versions of

events and that the United States Supreme Court has held that

the se type s of comments do not violate the right to remain silent.

Anderson v. Charles , 447 U.S. 404, 409 (1980) (“ We conclude that Doyle does not apply to the facts of this case. Each of two inconsistent descriptions of events may be said to involve ‘ silence ’

insofar as it omits facts included in the other version. But Doyle does not require any such formalistic understanding of ‘ silence, ’ and we find no reason to adopt such a view in this case.”).

¶49 Other jurisdictions have taken varied positions on where comments similar in nature “fall” within the spectrum between Doyle and Charles , as both parties aptly argue. Because we find no prejudice here, see infra ¶ 73 , we decline to determinatively decide this question, and leave it for a future appropriate case. 11

¶50 The concurrence would prefer us to decide the question. The concurrence recognizes that “the lack of prejudice is a sufficient

basis for disposition of this case

. ” I nfra ¶ 76

. B ut it argues that it is an important question that we granted certiorari on and that it already has “a clear answer in controlling precedent

, ” infra ¶ 76

n.2 3 , found in State v. Velarde , 675 P.2d 1194 (Utah 1984)

, which the

__________________________________________________________ 11 Our decision to not decide the matter should not be viewed as an implicit endorsement of the court of appeals’ determination that there is “no difference in impeaching a defendant’s prior inconsistent statement and impeaching a pri or statement that omitted exculpatory details where a defendant has not been

induced to remain silent.” Argueta , 2018 UT App 142, ¶ 29 (citation omitted) (internal quotation marks omitted).Cite as: 2020 UT 41

Opinion of the Court

15 concurrence claim s we are “casting shade on” by not deciding the constitutional question

, i nfra ¶ 83

. ¶51 Unlike the concurrence we do not think that Velarde

“clear [ ly ] ” answers the question presented here

. Infra ¶ 111.

Indeed

, read properly, we do not think it answers it at all

. Velarde

is about the theft of a truck. The defendant in Velarde was found asleep in the stolen truck in Morgan , Utah

. 675 P.2d at 1195. Upon being roused by a police officer, “and without any prompting,” he

assumed the “ search ” position against the truck

. Id. Unlike Argueta, h e never invoke d his right to remain silent after being given his Miranda warning s

. See id. Instead he freely told the officer

that arrested him that he did not own the truck and that he had no

idea he was in Morgan

. Id. Then, at trial, h e testified altogether differently that someone with a truck picked him up and they drove together to Morgan, where that person lived. Id.

¶52 This court rejected Velarde’s argument that the prosecutor’s cross

- examination about his inconsistent versions was a commentary on his “silence.” Id. at 11 95. We explained that “inconsistency” in testimony “is a legitimate basis for a

prosecutor ’s testing the credibility of a witness by way of impeachment,” id.

, because “ Doyle does not apply to

cross

- examination that merely inquires into prior inconsistent

s tatements

, ” i d. at 1196 (quoting Charles , 447 U.S. at 408).

¶53 The concurrence asserts th at Velarde’s two versions are

reconcilable , and even though the Velarde court c haracterized them

as “inconsistent

, ” it nevertheless resolved the question before us, involving Argueta’s reconcilable versions

. Infra ¶ ¶ 111

, 111 n. 2 6

. We do not think that the concurrence’s interpretation of Velarde is plausible or ascertainable from that less

- than

- two

- page opinion. If

we would have found this interpretation somewhat pers uasive,

there would be no need for a concurrence.

¶54 Velarde

, therefore, tells us little to nothing about cases like Argueta’s, where a defendant’s versions are not inconsistent, but merely supplemental and reconcilable. 12 And our one case that has

relied on Velarde since its issuance mention ed in parenthe ses that

Velarde st ands for the unremarkable proposition “that defendant ’ s

__________________________________________________________ 12 Even though the key words in this debate, “supplemental,”

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

111 n.2 6

.S TATE v. A RGUETA

Opinion of the Court

16 inconsistent testimony is legitimate basis for prosecutor ’ s questioning his credibility.” Alta Pac. Assocs. , Ltd. v. Ut ah State Tax

Comm’n , 931 P.2d 103, 110 (Utah 1997) (Russon, J., plurality opinion). 13

¶55 That is why

, for us

, answering the constitutional question the parties spar about is a task that would require a venture into murky waters. Under these circumstances, resolving the constitutional question would go against our approach to judging. “In light of the ‘great gravity and delicacy’ of constitutional questions, .

. . ‘[t]he Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed

of.’” State v. Rowan , 2017 UT 88, ¶ 25, 416 P.3d 566 (Himonas, J., concurring) (second alternation in original) (quoting Ashwander v. Tennessee Valley Auth

. , 297 U.S. 288, 34 5

– 4 6 (1936) (Brandeis, J., concurring)). We have gone so far in the past as to assert that it is “our obligation to avoid addressing constitutional issues unless required to do so.” Gardner v. State , 2010 UT 46, ¶ 93, 234 P.3d 1115 (citation omitted) (internal quotation marks omitted) ; see also State

v. Wood , 648 P.2d 71, 82 (Utah 1982) (“ [W]e address neither the

federal nor the state constitutional issues because the case can be decided on the preferred grounds of statutory construction. I t is a

fundamental rule that we should avoid addressing a constitutional issue unless required to do so

. ”). 14 And although we granted certiorari on the constitutional question, w e did so, as we do in other instances, bearing in mind that it is possible we will not reach

the issue. See

, e.g. , State v. Ray , 2020 UT 12, ¶ 45,

-- - P.3d

--- ( acknowledging that we granted certiorari on whether the court of appeals erred in its determina tion that Ray was prejudiced by any

__________________________________________________________ 13 We also note that Alta Pacific was not a criminal case, and its

use of Velarde was as an example for the proposition that “inconsistencies within one party’s appraisal could support the approval of a competing and more consistent appraisal.” Alta Pac.

Assocs. , 931 P.2d at 110 (Russon, J., plurality opinion)

.

14 It may be that these prior cases overstated the principle of constitutional avoidance by speaking broadly in terms of “obligation[s]” and “fundamental rule[s].” If so, it would be prudent for us to revisit this language. But we should do so with

the able assistance of counsel and cautiously. For “[w]hen a practice

of restraint is durable

— when it has survived several turns of the

wheel

— a wise humility counsels against discarding it.” Rowen

, 2017 UT 88, ¶ 27 (Himonas, J., concurring).Cite as: 2020 UT 41

Opinion of the Court

17 deficient performance, but ultimately decid ing to “not address the prejudice prong,” because we concluded the counsel performance in question “was not deficient”)

. ¶56 We can proceed, therefore, under the assumption that the prosecutor’s comments did rise to a Doyle violation

. B ecause even assuming such violation, we hold it did not prejudice Argueta

, as the State has shown that any such violation was harmless beyond

a reasonable doubt. See Brecht v. Abrahamson , 507 U.S. 6 19, 629

– 30 (1993) (requiring a conviction involving a federal constitutional error to be set aside unless it is harmless beyond a reasonable doubt)

. ¶57 To avoid reversal on account of a Doyle violation, “ the

court must be able to declare a belief that it was harmless beyond a reasonable doubt. The State bears the burden of proving that an error passes muster under this standard. ” Id. at 630 (citation omitted) (internal quotation mark s omitted).

¶58 In State v. Tillman , we held that a violation similar to the one alleged here was harmless beyond a reasonable doubt “ [i] n the face of overwhelming evidence of defendant ’ s guilt, together with the fact that the comments were isolated as opposed to extensive and the fact that the trial judge sp ecifically instructed t he jury that no presumption adverse to [ the defendant] is to arise from ” his

silence. 750 P.2d 546, 555 ( Utah 1987) (citations omitted) (internal quotation marks omitted) . These principles guide us in our decision today, but they are not factors in a rigid examination. 15 T he weight

of each consideration and the possible availability of other

__________________________________________________________ 15 After our decision in State v. Tillman

, 750 P.2d 546 (Utah 1987), the court of appeals “codified” our statement into four factors. See

, e.g. , State v. McCallie , 2016 UT App 4, ¶ 28, 369 P.3d 103; State v. Byrd , 937 P.2d 532, 535 (Utah Ct. App. 1997); State v. Reyes , 861 P.2d

1 055, 1057 (Utah Ct. App. 1993). The parties and the court of appeals refer to them as the “Byrd factors” (even though they were

first codified in Reyes ). See

, e.g. , McCallie , 2016 UT App 4, ¶ 38.

We read our decision in Tillman differently. It merely offe red specific reasons why there was no prejudice in that case based on past precedents of this court and the United States Supreme Court. It did not offer mandatory, rigid factors. While we endorse the rationale behind the “factors” identified by the court of appeals, as

we did in Tillman , we discourage courts from over

- relying on them. They should instead conduct a more holistic, case

- by

- case prejudice inquiry.S TATE v. A RGUETA

Opinion of the Court

18 considerations change from case to case

. C ourts thus should not

view Tillman ’s considerations as set in stone.

¶59 Here, we find that the overwhelming evidence of Argueta’s guil t as manifested in the trial testimon y is more than

suff i cient to find that any alleged Doyle violation was harmless beyond a reasonable doubt.

¶60 Argueta’s testimony at trial had two prongs : f irst, his reason for being at the apartment at all

— coming to collect on J.H.’s

twenty

- dollar debt ; and second, his reason for entering the

apartment

— to do a “good deed” by placing the keys inside

. Neither prong is credible in light of the rest of the evidence

, as well

as in light of Argueta’s testimony.

¶61 First, Argueta testified that in 2014, a year and a half before the charged act, he had met A.C. and J.H. at a bar. He had

conversed and dr u nk with them

— on their initiative . When the bar

had been about to close, he had offered J.H. a shot, before telling

them that he had to leave. A.C. and J.H. had asked him for a ride to their apartment, and he had obliged. He then testified that the couple had invited him inside for a drink, which he had agreed to. At their apartment, J.H. had asked if he could borrow twenty dollars from Argueta. Argueta had given J.H. the money. He had then decided to leave the apartment, and J.H. had told him

, “[w]henever you want to come , I owe you $20.” Argueta mentioned several times that the couple had argued with each

other throughout the night.

¶62 Argueta testified that had he attempted to collect his debt

“ [ f ] ive or six times.” He had usually done so late at night after the

bars had cl osed . He would drive by the house, but because “there were people in front, but [A.C. and J.H. ] were not there,” he had never attempted to enter the house. Trying to corroborate t his story, Argueta point ed to the fact that J.H. had told a private

detective Argueta hired that he had previously met Argueta “in passing.”

¶63 In contrast, J.H. testified that in April 2014

, he had been on the front porch of A.C.’s apartment and that Argueta had walked by with a bottle of Tequila and offered him a shot. He had accepted.

The two had dr u nk together and “made small talk for maybe a

minute or so.” J.H. had gone back inside, and thirty minutes later

he had heard A.C. yelling that there was someone outside peeking through their apartment window and asking J.H. to “ sto p this

guy

. ” He had gone outside and found Argueta at the side of the

house. When he and A.C. had confronted Argueta , he had actedCite as: 2020 UT 41

Opinion of the Court

19 friendly and assured them that “he was just looking for a place to piss.” J.H. also explained that he had said he had met Argueta “in passing” only because he had met him during the peeping incident.

He testified further that he had never asked anyone for a ride from the bar in question because he lived “close enough” to “walk every

time.”

¶64 A.C.’s version of th e events was consistent with J.H.’s . She

testified that she and J.H. had argued the night of the peeping

incident as they came back from a bar, and that they both had gone outside of the small apartment to c ool down. She had been in the backyard, lying on the ground when she had notice d a stocky man, dressed in black, peeping into her window. She had hid den behind

a truck as she watched him continue to peep into her and her neighbor’s apartment s

. When the man had moved to the house next
door, she had r u n into the house and alerted J.H

. After that

, J.H. had gone to the side of the house and found Argueta. He had come

back with his “arm around [Argueta].” J.H. explained that “[ Argueta] [had] walked by the house earl ier and offered [him] a shot.” When A.C. and J.H. had confronted Argueta and asked what

he was doing, he had replied that he had had to pee and denied looking through the window.

¶65 Argueta’s testimony and that of A.C. and J.H. had striking

similarities. Both the peeping incident and Argueta’s bar story took place during approximately the same time. In both stories, A.C. and
J.H. came back late at night from a bar and were fighting, and Argueta offered J.H. a shot, and they drank it together. 16 The

combination of J.H.’s testimony contradicting Argueta’s version, the consistency between J.H’s and A.C.’ s testimonies , and the suspicious amount of similarities between the two storie s , given that Argueta was familiar with J.H. ’s version of the events, 17 impedes the credibility of Argueta’s trial testimony background

prong.

¶66 In the s econd prong of his testimony , Argueta offered an innocent explanation for his presence at A.C.’s apartment on the

__________________________________________________________ 16 Relevant here is that Argueta heard part of A.C.’s peeping incident testimony and its descript ion by the prosecutor at the preliminary hearing he attended, well before he testified about his

version of events.

17 At the very least, Argueta’s trial attorney learned of J.H.’s version of events two days before trial, when J.H. told the entire version to Argueta’s private investigator.S TATE v. A RGUETA

Opinion of the Court

20 night of the charged act

. This prong was also not credible considering its absurdity, as well as the inconsistencies as to specific details between Argueta’s version and that of other

witness es

— whether the door to the apartment was open , whether the keys were inside t he lock when J.W. came back to the

apartment , and whether A.C. was sleeping covered or uncovered

. ¶67 Argueta’s explanation of what happened on the night of the charged act, even taken at face value, was absurd and not

believable

. As the court of appeals eloquently stated

, Argueta

“ testified that although he [had] met [A.C.] just once before, he stopped by her apartment in the early morning hours to claim an eighteen

- month

- old, twenty

- dollar debt, and that when he saw the keys in the door, he decided to do a ‘ good deed ’ by entering the apartment to place them inside. ” Argueta , 2018 UT App 142, ¶ 42

. Then, when J.W. came into the apartment

, Argueta tried to run out of the apartment instead of explaining that he was simply doing a “good deed.” 18

¶68 Beside the absurdity, Argueta’s story details did not add

up. He testified that when he approached the apartment’s door that night

, it was “already open” and that the keys were in the lock. According to him, he wa nted to do a “[g]ood deed” by putting the

k eys in the apartment and leav ing

. ¶69 But this version contradicts other testimon y . A.C. testified

that she had left the key in the door and closed the door all the way. Seeing the open door when he got back to the a partment, J.W. thought it was unusual. 19 He testified that “[w]hen [A.C.] went in she said that she would leave the keys in the door for me so that I could get in because we have

. . . one of the automatic locks. So she

left the k eys in the door, and

. . . I don’t know why she would leave the keys in the door and leave it open so it wouldn’t lock

. ”

¶70 Argueta also testified that he took the keys out of the door and put them on the dresser, and that as he was “turning back, [ J.W. ] was in front of” him. But J. W. testified he remembered the keys were still in the lock when he arrived at the apartment a nd

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

not let him. But this attempt did not explain why he tried to run out of the apartment as he saw J.W. instead of explaining his presence right then.

19 The door could have been open either before Argueta arrived or because he opened it.Cite as: 2020 UT 41

Opinion of the Court

21 that “a figure

. . . just kind of full rushing me

. . . just from thin air

, [came] running

. . . trying to get out the door.”

¶71 Additionally

, Argueta’s testimony on whether A.C. was

covered o r uncovered while asleep does not make sense given the

other testimon y

. Argueta testified that when he entered the

apartment he saw “a bulk” on A.C.’s bed, and it “was like the bed

was covered.” This was consistent with A.C.’s testimony that she covered herself up when she went to bed. It was also consistent

with J.W. ’s testimony that A.C. always slept covered with at least a sheet. But when J.W. came into the apartment he immediately

noticed that A.C. was not covered and “the blankets were down ”

and were “ move[d]

. . . kind of off of her.” Argueta did not address

this statement

. Only one person other than A.C., who was at least partially asleep, could have removed the blankets. That was Argueta. 20

¶72 Even taken at face value, without considering Argueta’s initial statement at all, his trial testimony version did not hold up against the overwhelming evidence against him. In addition, the jury heard testimony about the peeping incident and could have concluded from that testimony that, because Argueta had tried to

__________________________________________________________ 20 Argueta’s testimony at trial had ad ditional discrepancies. He was shifting about what he was doing the night of the charged act in general. On cross

- examination, he testified that he had worked for “the garbage collecting company in Orem” at that time. But then

he said that he had been a “ m echanic... [a ] nywhere ” and would find himself in the area because he was “running some other errands.” But when the prosecutor asked him what errands he had

been running on the night of the charged act, he answered “[t]hat’s

not what [he] was doing exactly t hat day.” See also Argueta , 2018 UT App 142, ¶ 42 n.9 (internal quotation marks omitted)

. Argueta was also inconsistent in his explanation of why he chose to enter the apartment that night and not on other occasions

. He testified that had he attempted to c ollect the alleged debt from A.C. and J.H. unsuccessfully “five or six” times but never “attempted to enter the home” because they were not among the people out front. On the night of the charged act, he had finally decided to go into the house to collect his debt. However, from his description, this night was not any different from other nights he

had tried to collect the debt. He did not see A.C. or J.H. in front of the house but he saw “some people .

. . in the back of the house,” and thought, “maybe the y are in now.”S TATE v. A RGUETA

Opinion of the Court

22 peep on A.C. before, there was a non

- innocent intent for his actions

on the night of the charged act.

¶73 In sum, there was overwhelming evidence of Argueta’s guilt given the other trial testimony. Therefore, even if we assume

that the prosecutor’s comments violated Doyle

, 21 that violation was harmless beyond a reasonable doubt. 22

CONCLUSION

¶74 Argueta failed to preserve his challenge to the admissibility of the peeping incident. Additionally, all alleged

errors in his trial, even assuming they all occu r red, were not prejudicial to him under our relevant standard s

. Therefore, we

affirm the court of appeals judgment and Argueta’s conviction s

.

__________________________________________________________ 21 The parties dispute whether the comments were a meaningful part of the cross

- examination and the closing arguments. Each party refers to the extent of the comments compared to the length

of the cross

- examination and closing arguments. They do so

because Byrd stated that whether “the reference was isolated” is a relevant factor in the analysis of harmlessness beyond a reasonable doubt. 937 P.2d at 535. That factor originated in our Tillman opinion, which said that whether “ the comments were isolated as opposed to extensive” mattered for the analysis. 750 P.2d at 555. This is a good example as to why the “Byrd factors” do not serve their purpose. An arithmetic calculation of words and lines alone gives us no dispositive finding on the effect that the prosecutor’s words had on the jury. At times, even one word can echo with a listener. Our main inquiry is the strength of the case against the defendant. And here, the extent of the comments is irrelevant given the overwhelming evidence of Argueta’s guilt and his unbelievable

version of events.

22 In section I.B. we explain that because the State has shown harmlessness beyond a reasonable doubt regarding the alleged Doyle violation, we hold that Argueta could not show that the

admission of t he trespassing evidence was harmful. The overwhelming evidence against Argueta leaves no room to assume that the trespassing incident was probative in the jury

determination.Cite as: 2020 UT 41

Lee, A.C.J., concurring in part and concurring in the judgment

23 A SSOCIATE C HIEF J USTICE L EE
, concurring in part and concurring in the judgment:

¶75 I concur in the judgment of the court and in most of the majority opinion. I applaud the court’s refinement and clarification of the doctrine of chances. And I agree with its conclusion that no prejudice resulted from either of the errors alleged by Argueta

— (a) the prosecutor’s questions and comments about differences between Argueta’s statements at the scene of the crime and his testimony at trial (allegedly in violation of Argueta’s Fifth Amendment right s)

, and (b) the admission of Argueta’s prior trespassing conviction (purportedly in contravention of our rules of evidence under the doctrine of chances).

¶76 Normally I would agree that the lack of prejudice is a sufficient basis for disposition of this case . But the fact

- intensive prejudice inquiry is not the reason we granted certiorari . We granted certiorari to consider whether the court of appeals erred in concluding that Argueta’s Fifth Amendment rights were not violated when the prosecutor sought to impeach his credibility by highlighting “exculpatory details” that Argueta mentioned at trial

but omitted in earlier statements to police. This is an important question. And we should address it because it has a straightforward answer in controlling precedent of the United States Supreme Court and in a governing decision of this court. 23

¶77 The court of appeals bas ed its conclusion on the U nited

S tates Supreme Court’s decision in Anderson v. Charles , 447 U.S. 404 (1980), which endorsed cross

- examination that highlights

inconsistencies between a defendant’s trial testimony and prior voluntary statements to police. Th at case held that in such
circumstances, there is no Fifth Amendment violation under Doyle

v. Ohio , 426 U.S. 610 (1976) because the prosecution is not commenting on a defendant’s silence (his failure to speak to police)

but rather his statements to police. Charles , 447 U.S. at 408

– 09.

¶78 Argueta has challenged that determination on certiorari

. He claims that his Fifth Amendment rights were infringed under Doyle because the prosecutor’s cross

- examination drew “negative
inferences” from his “silence,” not his “i nconsistent statements.”

__________________________________________________________ 23 I am not suggesting that we must address any issue on which we grant certiorari. I am asserting that the question we agreed to hear is important to resolve

— because it finds a clear answer in controlling precedent and declining to answer it will unsettle o ur law unnecessarily. See infra ¶¶ 80

– 82, 84, 106.S TATE v. A RGUETA

Lee, A.C.J., concurring in part and concurring in the judgment

24 Argueta thus views Charles as governing only the limited

circumstance in which the defendant is cross

- examined about statements that are irreconcilable. In Argueta’s view, “ Charles is inapplicable to this case because Argueta’s [ tr ial ] testimony provided only additional details, not inconsistent statements, when comparing Argueta’s trial testimony to his post

- arrest statements to police.”

¶79 The State disagrees. It asserts that details given at trial but

omitted in earlier statements t o police are a kind of “inconsistency,” and that any cross

- examination focusing on such statements is fair game under Charles . It also contends that we already resolved this question in State v. Velarde , where we explained that Doyle has “no application to a case in which the defendant did not exercise his right to remain silent,” and emphasized that there is no Fifth

Amendment bar on “cross

- examination that merely inquires into [voluntary] prior inconsistent statements.” 675 P.2d 1194, 1196 (Utah 1984) (ci tations omitted) . The State contends that this is precisely the situation here since Argueta did not exercise his right to remain silent but instead spoke freely and voluntarily to the police. Because the prosecutor did not use Argueta’s “ silence

. . . to impeach an explanation subsequently offered at trial,” Doyle , 426 U.S. at 618 (emphasis added), but rather highlighted differences between his prior voluntary statements and trial testimony (embellishments added at trial), the State asks us to affirm the c ourt of appeals under the standards set forth in Doyle

, Charles

, and

Velarde

. ¶80 I agree with the State’s reading of these cases. In the paragraphs below, I show that these decisions hold that there is no constitutional bar on a prosecutor’s comments highlighting

inconsistencies between a story told voluntarily in a pretrial investigat ion and a story told voluntarily at trial. I then establish that there is no constitutional or logically tenable distinction

between the inconsistency of (a) telling one story to police and a directly contradictory one at trial and (b) telling a limited st ory to police and embellishing it at trial. In neither circumstance has the defendant exercised his “right to remain silent.” He has voluntarily spoken at two different stages of the process

— in a police investigation and at trial. And in so doing he has vo luntarily subjected himself to cross

- examination, without any infringement of any right guaranteed by the Fifth Amendment or United States Supreme Court precedent. The circumstance at issue here (embellishment) is precisely the circumstance at issue in Vel arde

— the defendant’s two voluntary stories were not directlyCite as: 2020 UT 41

Lee, A.C.J., concurring in part and concurring in the judgment

25 contradictory, but inconsistent only in the sense that one added detail not previously provided. See infra ¶¶ 111, 111 n.2 6 . In that
situation, the Velarde court held that an “inconsistency” in a defendant’s stories “is a legitimate basis for a prosecutor ’s testing the credibility of a witness by way of impeachment.” 675 P.2d at 1195. And it affirmed a conviction against a constitutional claim that such a move ran afoul of the defendant’s “right t o remain

silent.” Id

. (citation omitted).

¶81 I find this holding controlling for reasons explained in greater detail below. The majority disagrees, asserting that Velarde does not “‘clear[ly]’ answer[] the question presented here.” Supra
¶ 51. Yet it does so in an opinion that offers no salient basis for rejecting my reading of Velarde or for effectively distinguishing it

— and that simultaneously purports to be avoiding the constitutional question altogether. See supra ¶ 49 (stating that the court is “declin[ing]” to decide the constitutional question) ; supra ¶ ¶ 55 , 55

n.14 (asserting that a decision on “the constitutional question would go against our approach to judging” under the doctrine of “constitutional avoidance”).

¶82 The most the majority can say about Velarde is that it involved an “inconsistency ” in which the defendant gave one version of his story prior to trial and a “different[]” version at trial.

S ee s upra ¶¶ 51

– 52. But that just underscores the parallelism

between this case and Velarde . As in this case, the Velarde

defendant’s stories did no t directly contradict each other

— they were “inconsistent” only in the sense that the defendant embellished his story at trial. See infra ¶¶ 111, 111 n.2 6 . It was in

that context that the Velarde opinion held that “in order to assert the [ Doyle ] privilege[,] there must be an initial and sustained silence after

the Miranda warning is given.” Velarde

, 675 P.2d at 1196 (emphasis added). That holding should control our decision here. We should not be waving it off on the ground that the opinion is som ehow “unremarkable” and has been cited only once in our case law. S ee

s upra ¶ 54. That is not a basis for overriding a square holding of this

court under our doctrine of stare decisis . And even if the facts of

Velarde were “[un]ascertainable” because the o pinion is less than two pages long

, see supra ¶ 53, (they aren’t, see infra ¶ ¶ 111, 111

n.2 6 ), this clear holding about the actions a defendant must take before invoking Doyle would still control. The court is thus in no position to claim that its decision to dismiss Velarde is an act of

constitutional avoidance. S ee s upra ¶ 55.

¶83 Constitutional avoidance makes sense when we are resolving a case on a statutory or other alternate ground whileS TATE v. A RGUETA

Lee, A.C.J., concurring in part and concurring in the judgment

26 declining to break new constitutional ground. If that’s what the maj ority were doing, I could understand it as an act of judicial restraint. But that’s not what’s afoot. We have already broken the constitutional ground at issue

— in our decision in Velarde . And the majority is openly casting shade on that decision. It is doing so,
moreover, without identifying any persuasive ground for questioning the scope of this important decision.

¶84 This is not an act of restraint or judicial “humility.” S ee

s upra ¶ 55 n. 14 (quoting State v. Rowan , 2017 UT 88, ¶ 27, 416 P.3d 566 (Himonas, J., concurring)). It is an open challenge to the settled

state of our case law and our doctrine of stare decisis . In questioning

Velarde

— and the reading of that clear decision outlined fu rther

below

— the court is not declining to decide an unresolved issue. It is reopening a heretofore resolved question, introducing doubt and ambiguity on a point that until today was clearly established. Unless and until the court explains (1) how the “inco nsistency” in

Velarde is any more contradictory than the “inconsistency” in this case and (2) how Argueta can invoke Doyle after “br[eaking] the silence guaranteed constitutionally,” Velarde , 675 P.2d at 1196, it is in no position to claim to be engaged in an act of restraint or humility.

¶85 There is no Fifth Amendment right to tell one story to the police and a different one at trial

— at least, not one that allows you to insulate yourself from cross

- examination. There is only a right not to be compelled to be a witness against yourself. And that right is in no way implicated in a case like this one where the defendant spoke voluntarily to police and again at trial.

¶86 These conclusions follow clearly from three sets of controlling authorities: (1) longstanding U ni ted States Supreme Court precedent limiting the right against self

- incrimination by allowing defendants to be cross

- examined regarding voluntary statements made during direct examination, see Fitzpatrick v. United

States , 178 U.S. 304, 315 (1900), or polic e interrogation, see Miranda

v. Arizona , 384 U.S. 436, 469 (1966); (2) the Supreme Court’s

decisions in Doyle and Charles , which establish that there is no Fifth

Amendment bar on “cross

- examination that merely inquires into prior inconsistent statements” m ade voluntarily during a police investigation, Charles

, 447 U.S. at 408; and (3) our opinion in Velarde

, which holds that Charles extends to the kinds of inconsistencies at

issue here

— details provided at trial but not given during the initial police invest igation

, s ee 675 P.2d at 1195

– 96. I set forth the specific grounds for these conclusions in the three sections that follow.Cite as: 2020 UT 41

Lee, A.C.J., concurring in part and concurring in the judgment

27 I. Fitzpatrick and Miranda

¶87 The Fifth Amendment establishes a right against compulsory self

- incrimination. It says that “[n]o person shall be .

. . compelled in any criminal case to be a witness against himself.”

U.S. C ONST

. amend. V. Defendants are thus protected against compelled testimony. And that leaves them open to

cross

- examination about v oluntary statements given at trial on direct examination, or earlier in the course of pretrial police investigation.

¶88 The first application of this principle is deeply embedded in controlling case law, going back at least as far as Fitzpatrick v.

United Sta tes , 178 U.S. 304 (1900). In Fitzpatrick , the Court held that an accused who “waives his constitutional privilege of silence” by “tak[ing] the stand in his own behalf” is subject to

cross

- examination. Id

. at 315. So “[w]hile no inference of guilt can

be dr awn from [the defendant’s] refusal to avail himself of the privilege of testifying,” the defendant “has no right to set forth to the jury all the facts which tend in his favor without laying himself

open to a cross

- examination upon those facts.” Id. Statem ents made on direct examination are made voluntarily. And they are thus fair

game on cross

- examination. In other words, a defendant is treated

“with the same latitude as would be exercised in the case of an ordinary witness.” Id

. ¶89 The same goes for statemen ts made voluntarily to police during an investigation. This is a core premise of Miranda v.

Arizona , 384 U.S. 436 (1966). That case established a warning that informs suspects of their right “to remain silent.” Id

. at 444 (emphasis added). But that warning also includes the famous “explanation” that “ anything” they say “ can and will be used against [them] in court.” Id

. at 469 (emphases added).

¶90 These premises follow naturally from the core guarantee of the Fifth Amendment. The protected right is a right aga inst compelled self

- incrimination. 24 That right is always subject to

__________________________________________________________ 24 Miranda protects suspects from coercive interrogations, not inadvisable voluntary statements. See, e.g. , Miranda v. Arizona , 384
U.S. 436, 473

– 74 (1966) (“If the individual indicates in any manner,

at a ny time prior to or during questioning , that he wishes to remain
silent, the interrogation must cease .” (emphases added) (footnote omitted)) ; id. at 474 (“Without the right to cut off questioning , the setting of in

- custody interrogation operates on the ind ividual to (continued

. . .)S TATE v. A RGUETA

Lee, A.C.J., concurring in part and concurring in the judgment

28 waiver, as when the defendant decides to speak voluntarily about

his involvement in a crime

. See Berghuis v. Thompkins , 560 U.S. 370, 384 (2010) (“Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.”). And once a suspect does th at, he is in no position to complain about cross

- examination highlighting differences between voluntary statements made at two different stages of interaction with the government.

¶91 Argueta cannot and does not assert that his statements to the police were in any way compelled or involuntary . He gave them voluntarily after he received his Miranda warnings

— warnings that included the caution that anything he said could and would be used against him in court. And the State made good on that promise. That is all t hat happened here. Argueta was

cross

- examined about voluntary statements he made to the police during his voluntary testimony at trial. And he is thus in no position to argue that this cross

- examination infringed his Fifth Amendment rights.

II. Doyle and C harles

¶92 Fitzpatrick and Miranda provide the context for and explain the Supreme Court’s subsequent decisions in Doyle v. Ohio , 426 U.S. 610 (1976), and Anderson v. Charles , 447 U.S. 404 (1980). Contrary to Argueta’s assertions, these decisions did not estab lish a right to give two different voluntary statements about a crime and then

avoid cross

- examination about the differences so long as the statements do not flatly contradict one another. They establish only a narrow limitation on the scope of permissible cross

- examination. And they do so in a manner that confirms the propriety of the

cross

- examination challenged in this case.

__________________________________________________________ overcome free choice in producing a statement after the privilege has been once invoked.” (emphases added) ) ; id. at 478 (“The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated .“ (emphasis added) ) ; id. (“To summarize, we hold that

when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning , the privilege against self

- incrimination is jeopardized.” (emphases added) )

.Cite as: 2020 UT 41

Lee, A.C.J., concurring in part and concurring in the judgment

29 ¶93 Doyle prohibits the prosecution from seeking to impeach a defendant by commenting on his “silence” during a police investigation. 4 26 U.S. at 617

– 19. But that holding is tethered to and

based on the Miranda warning

— and the notion that it is fundamentally unfair for the state to advise a suspect that he has the “right to remain silent” only to later highlight his silence as a

basis for an inference of guilt at trial. Id. And Charles offers an important clarification of the Doyle principle by holding that there is no infringement of the Fifth Amendment where the

cross

- examination does not comment on “silence” but instead “inquires into p rior inconsistent statements” made voluntarily to the police. 447 U.S. at 408.

¶94 Taken together, Doyle and Charles sustain the decision of the court of appeals. They clarify that the prosecution is prohibited from commenting on a suspect’s invocation of and reliance on the

Miranda right to remain silent as a basis for an inference of guilt. But they reserve the prosecution’s right to pursue

cross

- examination when the defendant has not exercised the right to remain silent but instead has spoken voluntarily to police and offered an explanation for his involvement in a crime.

A. Doyle

¶95 The defendant in Doyle v. Ohio was arrested and convicted on charges of drug trafficking. 426 U.S. 610, 611 (1976) . At the time
of his arrest, he was advised of his Miranda right to remain silent.

Id. at 612. And he exercised that right

— he did not speak to the police. Afterward, the defendant took the witness stand and sought to undermine the government’s portrayal of a drug deal in which

the defendant had stood next to “a w ell

- known ‘street person’ with a long criminal record,” id. at 611, who held “a package under his arm, presumably after the transaction” had taken place

, i d

. at 612. The defendant testified that in reality the “street person” had

“framed” him

— that the “str eet person” was the dealer, and that he (the defendant) had been seeking only to purchase drugs. Id

. at 613.

¶96 The prosecution sought to undermine the defendant’s “framing” defense by questioning the defendant about his silence at the time of the initial pol ice investigation. Id. at 613

– 14. It was in

this context that the Doyle C ourt held that “impeachment use of a defendant’s post

- arrest silence

, ” id. at 616, is an infringement of the defendant’s constitutional rights

— a “fundamentally unfair” move

that amoun ts to “a deprivation of due process

, ” i d. at 618. Importantly, the Doyle C ourt did not root its decision in some freestanding notion of “fairness” or “due process.” It specificallyS TATE v. A RGUETA

Lee, A.C.J., concurring in part and concurring in the judgment

30 based its “fairness” inquiry on the content of the required Miranda warning

. See id. at 617.

¶97 The Doyle C ourt acknowledged that cross

- examination regarding a defendant’s voluntary “post

- arrest statements ” is entirely appropriate Id

. (emphasis added). But it viewed commentary on a defendant’s post

- arrest silence as a different

mat ter. The C ourt noted that Miranda “require[s] that a person taken into custody be advised immediately that he has the right to

remain silent.” Id

. And it noted that a suspect’s “[s] ilence in the

wake of these warnings may be nothing more than the arrestee’s

exercise” of the Miranda right. 25 Id

. Although “the Miranda warnings contain no express assurance that silence will carry no penalty,” the C ourt concluded that “such assurance is implicit to any person who receives the warnings.” Id

. at 618. And “[i]n such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Id

. (footnote omitted).

¶98 T his clear holding of Doyle has no purchase in a case like

this one. Here

, there was no commentary on a defendant’s

invocation of silence , but only commentary about his voluntary

statements . That is fair game under Doyle

. ¶99 Doyle is based on fundamental fair ness concerns rooted in a defendant’s reliance on the implied promises of the Miranda warnings. There are no such concerns in a case like this one. Argueta was given no “implicit” assurance that his voluntary statements to police would not be used against him. He was told the exact opposite. See Miranda v. Arizona , 384 U.S. 436, 469 (establishing the warning that “ anything ” a suspect says “ can and

will be used against [him] in court”). So he was in no position to cry foul when his voluntary, post

- Miranda st atements were used for impeachment at trial.

__________________________________________________________ 25 Because a d efendant’s invocation of his right to remain silent must be “unambiguous,” a defendant cannot “invoke” his right to

remain silent

— and thereby put an end to questioning and suppress any subsequent statements he makes

— by simply remaining silent

for some exte nded period of time. Berghuis v. Thompkins , 560 U.S.
370, 381

– 82 (2010). Any statements made after a valid Miranda warning are thus fair game in the absence of a clear statement of a

desire to remain silent. See id. But of course a defendant may always

exe rcise his right to remain silent by making no reply at all.Cite as: 2020 UT 41

Lee, A.C.J., concurring in part and concurring in the judgment

31 B. Charles

¶100 This reading of Doyle is confirmed by the Court’s per
curiam opinion in Anderson v. Charles , 447 U.S. 404 (1980). Charles reinforced the distinction between an impermissible inference from

silence (in contravention of the Miranda warning) and permissible

cross

- examination and commentary on voluntary statements made to police. See id. at 408

– 409. And it openly rejected a “formalistic” understanding of “silence” that would blur the distinction between

the two. Id

. at 409.

¶101 The defendant in Charles was arrested while driving a

stolen car

— a car that belonged to a man “who had been strangled

to death i n his Ann Arbor home less than a week earlier.” Id

. at 404. The defendant, found with personal property belonging to the deceased man, was given his Miranda warnings and asked about

the stolen car. Id. at 404

– 05. He then voluntarily told the investigating officer “that he [had] stole[n] the car in Ann Arbor from the vicinity of Washtenaw and Hill Streets, about two miles

from the local bus station.” Id

. at 405. But at trial, the defendant testified that he had taken the “unattended” car in question “from

th e parking lot of Kelly’s Tire Co. in Ann Arbor.” Id

. On

cross

- examination, the prosecution challenged the trial testimony as a “recent fabrication” and asked the defendant why he hadn’t told “anybody at the time [he was] arrested, where [he] got that

car.” Id

. at 406. The prosecution also emphasized that the defendant had previously told an investigating police officer that he had

stolen the car from “Washtenaw and Hill Street.” Id

. ¶102 The defendant subsequently filed a federal habeas petition. Id. The Sixth C ircuit held that “the prosecutor’s questions about [ the defendant’s] post

- arrest failure to tell officers the same story he told the jury violated due process under the rule of Doyle

v. Ohio .” Id

. at 407 (citation and internal quotation marks omitted).

But the Supreme Court reversed, emphasizing many of the points that I have highlighted above.

¶103 First, the Charles C ourt highlighted the limited nature of

the Doyle holding. “ Doyle bars the use against a criminal defendant

of silence maintained after receipt of governmental assurances.” Id

. at 408 (emphasis added). It “does not apply to cross

- examination that merely inquires into prior inconsistent statements.” Id

. “Such questioning makes no unfair use of silence because a defendant who voluntarily speaks after receiving Miranda warnings has not

been induced to remain silent.” Id

. “As to the subject matter of his
statements, the defendant has not remained silent at all.” Id

.S TATE v. A RGUETA

Lee, A.C.J., concurring in part and concurring in the judgment

32 ¶104 Second, the Charles C ourt acknowledged that the line between silence and prior statement s could be considered fuzzy. It noted that the Sixth Circuit had adopted a reading of Doyle that would bar questions that concerned a defendant’s “failure to tell arresting officers the same story he told the jury.” Id

. (emphasis added) (citation omitted). And it conceded that there is a sense in which the failure to tell the same story told on a previous occasion “may be said to involve ‘silence’ insofar as it omits facts included

in the other version.” Id

. at 409. But the Charles C ourt expressly repudiated this “formalistic understanding of ‘silence.’” Id

. In place
of that view, the C ourt reinforced the Fifth Amendment principles

at the heart of Miranda and Doyle , holding that Doyle is implicated only when the prosecution makes refe rence to a defendant’s “exercise of his right to remain silent.” Id

. at 408 (citation omitted);

see also id. at 409 (noting that a question that seeks only “to elicit an explanation for a prior inconsistent statement” is not a question

that seeks to “draw meaning from silence,” and is thus

constitutional under Doyle ).

¶105 These principles again reinforce the court of appeals’ analysis in this case. There may be a metaphysical sense in which questions about perceived differences between Argueta’s voluntary state ments on the night of his arrest and his trial testimony comment on “silence”

— one story “omits facts included

in the other version.” Id

. at 409. But this does not offend the Fifth

Amendment under Charles . The “formalistic” sense in which the prosecution’s cross

- examination amounts to commentary on Argueta’s “silence” is beside the point

— the key question is whether the prosecution has asked the jury to infer guilt from a defendant’s invocation of the right to remain silent set forth in the

Miranda warning. W here (as here) that is not the case, there is no Doyle violation. There is only a fair commentary on differences between two voluntary stories told by the defendant. And this kind of commentary is the core of cross

- examination and in no way

violates the Fi fth Amendment.

III. Velarde

¶106 The above establishes the propriety of the prosecution’s

cross

- examination and closing argument in this case under controlling precedent of the U nited S tates Supreme Court. But any arguable doubt on the matter is resolved by ou r decision in State v.

Velarde , 675 P.2d 1194 (Utah 1984). Velarde is directly on point and directly controlling as a matter of stare decisis . The majority

unsettles our law by suggesting otherwise.Cite as: 2020 UT 41

Lee, A.C.J., concurring in part and concurring in the judgment

33 ¶107 Velarde accepts the above understanding of the Charles

op inion. It also goes further, resolving any remaining doubts of

relevance to this case. Velarde holds that Doyle may be invoked only

after “an initial and sustained silence” once Miranda warnings are given. Id. at 1196 (emphasis added). And it expressly holds that

Charles permits cross

- examination aimed at highlighting inconsistencies between two voluntary statements by the

defendant

— whether the inconsistencies are mere differences or outright contradictions

. ¶108 The police confronted the d efendant in Velarde after pursuing a tip and finding him asleep in a truck in front of a Morgan, Utah café at 2:00 a.m. Id

. at 1195. After the police officer confirmed that the truck was stolen, he arrested Velarde and gave

him his Miranda warning s

. Id. In response to the officer’s questions,
Velarde volunteered that he did not own the truck, that he had
arrived at the café in the truck, and that he did not know he was in Morgan. Id. But he gave no other details. “At no time did defendant assert any right t o remain silent.” Id

. ¶109 Velarde later testified at trial. There, he gave additional

details that he had not provided at the time of his arrest. He stated that another man had “picked him up [in the truck] in Salt Lake City,” “driven past” the defendant’s ho me, and “stayed on the freeway all the way to Morgan,” where the other man lived. Id. The prosecution then sought to impeach the defendant on the basis of

the differences between the story he told at trial and the voluntary

statements he had made to the po lice officer. Id.

¶110 On appeal, the defendant asserted that this

cross

- examination constituted commentary on his “silence” and therefore infringed his Fifth Amendment rights under Doyle

. Id. We rejected that argument. We held that the “ inconsistency of [the

d efendant’s trial] testimony with what defendant had told the officer” was a “legitimate basis for a prosecutor’s testing the credibility of a witness by way of impeachment.” Id. And we emphasized that the defendant had “waived” his “Fifth Amendment guarant ee to remain silent” by “talking freely with the officer” about the crime after receiving his Miranda warning s , and had done so again when he “took the witness stand.” Id.

¶111 That analysis is directly controlling here. Velarde makes

clear that there is no Fif th Amendment bar on cross

- examination or commentary that is aimed at highlighting differences between two stories told voluntarily by a defendant. And it emphasizes that the differences explored need not be limited to outright contradictions.S TATE v. A RGUETA

Lee, A.C.J., concurring in part and concurring in the judgment

34 Velarde speak s of “inconsistency.” Id

. But the inconsistency at issue
there, as here, involved mere differences

— additional details recounted at trial that were not given to police. In Velarde , after all, it was entirely possible for the defendant to have both (a) not

o wned the truck, arrived in Morgan in the truck, and not known he was in Morgan at the time of his arrest (as he told the police), and (b) been picked up in Salt Lake and driven to Morgan in the truck by another person (as he testified at trial). 26 Yet we s poke of these

differences as inconsistencies that opened the door to

cross

- examination. Id. And we emphasized that the defendant had

__________________________________________________________ 26 In resisting this straightforward conclusion, the majority notes that Velarde (a) “told the officer that arrested him that he did not own the truck and that he had no idea he was in Morgan,” and (b) testified at trial “that someone with a truck picked him up and they drove together to Morgan, where that person lived.” Supra
¶ 51. That is correct. But it does not distinguish Velarde from this

case

— it highlights the parallelism between the two case s. The two stories told by Velarde were not directly contradictory. By the time of trial, Velarde had of course discovered where he had been on the night in question

— he was on trial for a charge on

which he was arrested in Morgan . So in explaining that it was another man who had driven him to Morgan, Velarde wasn’t suddenly claiming that he had known he was in Morgan the night he was arrested. To the extent there was any inconsistency, it was

in the embellishments and details relayed at trial (and not reco unted during the pretrial investigation). That is exactly the situation here. Argueta, like Velarde, “freely
told the officer that arrested him,” supra ¶ 51, that he had met the victim at a bar, come to her apartment, noticed the keys in the door,

and ente red to place the keys on the dresser. “Then, at trial, he testified altogether differently .

. . .” Supra ¶ 51. He not only provided elaborate details about meeting both the victim and her

ex

- boyfriend at a bar

— driving home together, sharing a beer, and lending twenty dollars to the victim’s ex

- boyfriend

— he claimed
that he had tried to collect the debt some five or six times before, and that recovering that eighteen

- month

- old debt had been the reason for his presence at the apartment. Like Velarde’s addit ional details, Argueta’s embellishments were surprising and arguably suspicious, but ultimately reconcilable. It was perfectly possible for every statement to be true. And if Velarde involved an “inconsistency” on which it was fair game for the prosecutor to comment, then the same holds true here.Cite as: 2020 UT 41

Lee, A.C.J., concurring in part and concurring in the judgment

35 waived his right to remain silent by speaking “freely with the

officer.” 27 Id.

¶112 The majority asserts that Velarde “tells us little to nothing about cases” where the alleged inconsistency involves details told at trial that were not relayed previously. Supra ¶ 54. But that is

incorrect. This case is on all fours with Velarde . The incon sistency we encounter today is exactly the kind of inconsistency we

encountered in Velarde

. See supra ¶¶ 111, 111 n.2 6

. ¶113 The majority resists this conclusion. It says that Velarde

could not have addressed whether “inconsistent” statements

include differenc es as well as outright contradictions, see supra ¶ 53,

because Velarde did not use the “key words” “‘supplemental,’
‘different,’ or ‘reconcilable,’” 28 supra ¶ 5 4 n.12. I don’t follow. The

__________________________________________________________

27 The majority also tries to distinguish Velarde by pointing to the fact that Argueta invoked his right to remain silent, while

Velarde did not. S ee s upra ¶ 51. But Argueta immediately waived that right by blurtin g out his initial, incomplete explanation from

the curb

— “he freely told the officer that arrested him,” supra ¶ 51, that he had met the victim at the bar and entered to place the keys on the dresser. These statements were not protected as involuntary

— as ev idenced by their admission into evidence at

trial. See Michigan v. Mosley , 423 U.S. 96, 104 (1975) (holding that “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored’” (emphasis added)); see also Berghuis v. Thompkins , 560 U.S. 370, 384 (2010) (“Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an

accused’s uncoerced statement establishes an implied waiver of the right to remain silent.”) And Velarde tells us precisely what to do in that situation: “[I]n order to assert the [ Doyle ] privilege[,] there

must be an initial and sustained silence after the Miranda warning i s given.” 675 P.2d at 1196 (emphasis added). But Argueta, like Velarde, “broke the silence guaranteed constitutionally,” id. , and is thus in no position to invoke Doyle

— a point that remains unrefuted by the majority.

28 This is a strange charge coming from a majority unconcerned with the “key words” that do appear in Velarde

. See supra ¶¶ 82, 107,

111 n.2 7 (highlighting Velarde ’s requirement that a defendant invoking Doyle must be able to show an “initial and sustained (continued

. . .)S TATE v. A RGUETA

Lee, A.C.J., concurring in part and concurring in the judgment

36 doctrine of stare decisis “requires,” at a minimum, “that a decision rendered by a court in a particular factual context govern later decisions by that court arising under the same or similar facts.”

State v. Sims , 881 P.2d 840, 843 n.7 (Utah 1994). And that principle requires our application of the Velarde holding here

— a decision giving “inconsistent” the content it must have had in order for the

Velarde court to come to the decision it did. Both Argueta’s and Velarde’s statements were (1) voluntary and (2) ultimately
reconcilable, supr a ¶¶ 111, 111 n.2 6

— and Velarde’s were deemed

“inconsistent.” Velarde

, 675 P.2d at 1196 (citation omitted). That

should be the end of the matter. See Steiner Corp. v. Auditing Div. of

Utah State Tax Comm’n , 1999 UT 53, ¶ 12, 979 P.2d 357 (“ Stare decisis

means that like facts will receive like treatment in a court of law.” (citation omitted)).

¶114 The majority also claims that we have not decided where embellishments like Argueta’s “‘fall’ within the spectrum between Doyle and Charles .” S ee s upra ¶ 49. But I’m not sure how Velarde

could have been an y clearer . That opinion went to great lengths to distinguish the circumstance presented in a case like this one (and

Charles and Velarde ) from the situation in Doyle . It noted that “[t]he rationale which the Supreme Court [had] adopted for its decision

in Doyle ” was that it was “fundamentally unfair for the prosecution to impose a penalty at trial on a defendant who has exercised [his] right by choosing to remain sile nt.” Velarde , 675 P.2d at 1195

– 96 (quoting United States v. Agee , 597 F.2d 350 (3d Cir. 1979)). It reasoned that “[t]he very statement of that rationale demonstrates

that Doyle can have no application to a case in which the defendant

did not exercise his r ight to remain silent.” Id. at 1196 (quoting Agee

, 597 P.2d 350). And it reinforced the straightforward reading of

Charles that allows “cross

- examination that merely inquires into prior inconsistent statements,” given that “a defendant who voluntarily spea ks after receiving Miranda warnings has not been

induced to remain silent.” Id. (quoting Charles , 447 U.S. at 408). Again, it deemed “inconsistency” to encompass not just outright

contradictions but mere differences between a defendant’s two voluntary acco unts. Supra ¶¶ 111, 111 n.2 6 . In these circumstances,

Velarde makes clear that the prosecutor’s inquiries “make[] no

__________________________________________________________ silence” and must not have “broke[n] t he silence guaranteed constitutionally” (citations omitted) ); infra ¶ 114 (highlighting the

Velarde court’s holding that “ Doyle can have no application to a case

in which the defendant did not exercise his right to remain silent”).Cite as: 2020 UT 41

Lee, A.C.J., concurring in part and concurring in the judgment

37 unfair use of silence.” 675 P.2d at 1196 (quoting Charles , 447 U.S. at 408).

¶115 These are precisely the circumstances of this case. And

Velar de is accordingly controlling and entitled to respect as a matter

of stare decisis . If the majority wishes to walk back Velarde it should do so transparently

— and with something more than the truism

that Velarde is less than two pages long and has been cite d only once for the proposition that a defendant’s “inconsistent testimony is legitimate basis for prosecutor’s questioning his credibility.” S ee

s upra ¶¶ 53

– 54 (citation omitted) . I don’t see how a case being short or cited only for its holding undermines its holding. If the court has

doubts about Velarde , it should own that position and justify it

under our doctrine of stare decisis . In the absence of such justification, Velarde is controlling.

¶116 I would so hold. And I would affirm the court of appeals’

an alysis under Velarde ’s authority.