This opinion is subject to revision before final

publication in the Pacific Reporter

2020 UT 41

IN THE

SUPREME COURT OF THE STATE OF UTAH

THE STATE OF UTAH,

Respondent,

v.

CARLOS WALTER ARGUETA,

Petitioner.

No. 20180814

Heard November 13, 2019

Filed July 2, 2020

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

JUSTICE HIMONAS authored the opinion of the Court, in which 

CHIEF JUSTICE DURRANT and JUSTICE PEARCE joined.

ASSOCIATE CHIEF JUSTICE LEE filed an opinion concurring in part 

and concurring in the judgement, 

in which JUSTICE PETERSEN joined.

JUSTICE HIMONAS, opinion of the Court:

INTRODUCTION

¶1 Carlos Walter Argueta was caught in the middle of the 

night in A.C.’s apartment. At the scene, she complained to a police 

officer that Argueta had inappropriately touched her. That night, 

also at the scene, and after invoking his Miranda rights, Argueta

refuted the allegation and offered a short, innocent explanation of 
STATE v. ARGUETA

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 testimony to 

the contrary. During the trial, the State introduced 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 his 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 their admission prejudiced him.

¶3 We hold that any error found or assumed 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 between 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 boyfriend (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. lived 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. Because 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 place between deep sleep 

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

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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.” State v. 

Griffin, 2016 UT 33, ¶ 2 n.2, 384 P.3d 186 (citation omitted) (internal 

quotation marks omitted).
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Opinion of the Court

3

“rubbing” her buttocks. A.C. was facing a wall and her eyes were 

closed, so she could not see who touched her. She figured that it 

was J.W. It was not.

¶6 Some 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. While 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 

the man’s presence in the apartment.

¶7 The shouting awoke A.C. She saw that J.W. was holding a 

man, who turned out to be Argueta. At 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 into 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 managed 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 After 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 drunk 

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

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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 the same 

apartment.
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4

which he had accepted and drunk. The couple had then asked 

Argueta to give them a ride home. He had agreed, and when they 

had gotten to their apartment, A.C. and J.H. had invited him in. J.H.

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

had given him the money. J.H. had told 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 he 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, as 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 bad 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 

any, 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 abeyance5 (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 two concurrent terms of one to fifteen years in 

prison. Argueta appealed, and the court of appeals affirmed 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 

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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 defendant, 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 abeyance agreement.” UTAH CODE § 77-2a-1(1).
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Opinion of the Court

5

violate Argueta’s right to remain silent when, during 

cross-examination and closing arguments, she commented on 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. Finally, 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 “we 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 issue—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 discretion.” 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 Argueta’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, ¶¶ 47–55. He did not raise 

those arguments in his petition for writ of certiorari, and we 

therefore do not address them. 
STATE v. ARGUETA

Opinion of the Court

6

not prejudiced by the erroneous admission of the trespassing 

incident, and (3) that Argueta failed 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 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. But even if we 

assume error, it was harmless.

¶18 Finally, we 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 assuming that such 

a violation occurred, we find that it was harmless beyond a 

reasonable doubt and did not prejudice Argueta. Even without 

mentioning 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 witnesses, 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—

would 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 prejudicial. The 

court of appeals held that Argueta did not preserve his challenge 

to the peeping incident and that, although the trial court erred in

admitting the trespassing incident, 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. We 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.
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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 into the

windows 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 would 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. To 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 

evaluating 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 challenge 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. 
STATE v. ARGUETA

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 identification 

was inadmissible because “every factor weighs against a good 

[eyewitness] identification.” But he never specifically argued that 

it should be inadmissible under rule 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: it 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 

argument 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 an

admissibility challenge based on eyewitness unreliability, but only 

as a challenge to the weight attributed to the testimony. 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, and 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 Argueta, happened when the trial court 

remarked during a hearing that the “strength” of the identification 

evidence was “very thin.” But Argueta attaches too much weight 

to this off-hand remark—a remark made while the trial court was 

posing “hypotheticals” in an attempt to understand the parties’ 

arguments. 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.
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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 unreliability. And thus we do not 

address whether the alleged unreliability of the eyewitness 

testimony makes the peeping incident inadmissible under rule 403. 

B. The Trespassing 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 found Argueta outside the home; he 

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, 2018 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. We 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.” UTAH R. EVID.

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, courts apply the doctrine of chances. State v. Lowther, 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 befalling one individual over and over.” State v.
STATE v. ARGUETA

Opinion of the Court

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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 id. ¶ 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. Imwinkelried, 

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 HOFSTRA L. REV. 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 application 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 

impermissible 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 chances. This

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 court is confronted 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 . . .)
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Opinion of the Court

11

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

HOFSTRA L. REV. at 856–857, 872.

¶36 The 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 other 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, the 

similarity 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 

coincidence.” 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. DAVIS L. REV. 355, 405–06 (1996)) (internal

quotation marks omitted); see 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. Argueta, 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 burden under the doctrine. 
STATE v. ARGUETA

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. But 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 ascertain 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

requirement in Verde is only empty words.

¶40 With respect to the similarity prong, here, 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 urinate near or at a young woman’s house at the early 

hours of the morning.” It could be all these misfortunes or a 

different one altogether.

¶41 And because 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 similarity 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 

evaluate.

¶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 assessing. The State did,

however, question Argueta’s innocent urination explanation at 

trial. The 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 would
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Opinion of the Court

13

not help the State’s argument. That line of questioning 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 woman’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 

normally 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. We, therefore, agree with 

the court of appeals that even assuming error, it was harmless and

not reversible. 

II. THE PROSECUTION’S COMMENTS 

ABOUT ARGUETA’S STATEMENTS WERE

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 Argueta 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 “left 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. and 
STATE v. ARGUETA

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 the 

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 Argueta 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 

explanation 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

these types 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.” Infra ¶ 76. But 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.23, 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 prior 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).
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Opinion of the Court

15

concurrence claims we are “casting shade on” by not deciding the 

constitutional question, infra ¶ 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, he never invoked his right to remain silent after being 

given his Miranda warnings. 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, he 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 1195. 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 

statements,” id. at 1196 (quoting Charles, 447 U.S. at 408). 

¶53 The concurrence asserts that Velarde’s two versions are 

reconcilable, and even though the Velarde court characterized them 

as “inconsistent,” it nevertheless resolved the question before us, 

involving Argueta’s reconcilable versions. Infra ¶¶ 111, 111 n.26.

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 persuasive, 

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 mentioned in parentheses that 

Velarde stands for the unremarkable proposition “that defendant’s 

__________________________________________________________

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

“different,” 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.26.
STATE v. ARGUETA

Opinion of the Court

16

inconsistent testimony is legitimate basis for prosecutor’s 

questioning his credibility.” Alta Pac. Assocs., Ltd. v. Utah 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, 345–46 (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. It 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, we 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 determination 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 deciding 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. Because 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. 619, 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 marks 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 specifically instructed the 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 The 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 

1055, 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 offered 

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. 
STATE v. ARGUETA

Opinion of the Court

18

considerations change from case to case. Courts thus should not 

view Tillman’s considerations as set in stone.

¶59 Here, we find that the overwhelming evidence of 

Argueta’s guilt as manifested in the trial testimony is more than 

sufficient to find that any alleged Doyle violation was harmless 

beyond a reasonable doubt.

¶60 Argueta’s testimony at trial had two prongs: first, 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 drunk 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 closed. 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 this 

story, Argueta pointed 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 drunk 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 “stop 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 acted 
Cite 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 the 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 cool down. She had been in the 

backyard, lying on the ground when she had noticed a stocky man, 

dressed in black, peeping into her window. She had hidden behind 

a truck as she watched him continue to peep into her and her 

neighbor’s apartments. When the man had moved to the house next

door, she had run 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 earlier 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 stories, 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 second 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 description 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.
STATE v. ARGUETA

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 

witnesses—whether the door to the apartment was open, whether 

the keys were inside the 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 wanted to do a “[g]ood deed” by putting the 

keys in the apartment and leaving. 

¶69 But this version contradicts other testimony. 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 apartment, 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 keys 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 and 

__________________________________________________________

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 or uncovered while asleep does not make sense given the 

other testimony. 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 additional 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 “mechanic... [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 that 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 collect 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 they are in now.”
STATE v. ARGUETA

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 occurred, were not 

prejudicial to him under our relevant standards. Therefore, we 

affirm the court of appeals judgment and Argueta’s convictions.

__________________________________________________________

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 the 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

ASSOCIATE CHIEF JUSTICE LEE, 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 rights), 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 based its conclusion on the United 

States 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. That 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 “inconsistent 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 our 

law unnecessarily. See infra ¶¶ 80–82, 84, 106. 
STATE v. ARGUETA

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 [trial] 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 to 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) (citations 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 court 

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 

investigation 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 story 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 voluntarily 

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 Velarde—

the defendant’s two voluntary stories were not directly 
Cite 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.26. 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 to 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. 

See supra ¶¶ 51–52. But that just underscores the parallelism 

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

defendant’s stories did not directly contradict each other—they 

were “inconsistent” only in the sense that the defendant 

embellished his story at trial. See infra ¶¶ 111, 111 n.26. 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 somehow 

“unremarkable” and has been cited only once in our case law. See 

supra ¶ 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 opinion is less than 

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

n.26), 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. See supra ¶ 55.

¶83 Constitutional avoidance makes sense when we are 

resolving a case on a statutory or other alternate ground while 
STATE v. ARGUETA

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

26

declining to break new constitutional ground. If that’s what the 

majority 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.” See

supra ¶ 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 further 

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 “inconsistency” 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 United 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 police 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” made 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 investigation, see 675 P.2d at 1195–96. I set forth the specific 

grounds for these conclusions in the three sections that follow. 
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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. CONST. amend. V. Defendants are thus protected against 

compelled testimony. And that leaves them open to 

cross-examination about voluntary 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 States, 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 drawn 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. Statements 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 statements 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 against 

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 any 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 individual to 

(continued . . .)
STATE v. ARGUETA

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 that, 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 that 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 Charles

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

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¶93 Doyle prohibits the prosecution from seeking to impeach a 

defendant by commenting on his “silence” during a police 

investigation. 426 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 prior 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 well-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, id. at 612. 

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

“framed” him—that the “street 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 police investigation. Id. at 613–14. It was in 

this context that the Doyle Court 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 amounts to “a deprivation of due process,” id. at 618. 

Importantly, the Doyle Court did not root its decision in some 

freestanding notion of “fairness” or “due process.” It specifically 
STATE v. ARGUETA

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 Court 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 

matter. The Court 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 Court 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 This 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 fairness 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 statements were used for 

impeachment at trial.

__________________________________________________________

25 Because a defendant’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 extended 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 

exercise his right to remain silent by making no reply at all.
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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 in 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 

the 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 Circuit 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 Court 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.
STATE v. ARGUETA

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

32

¶104 Second, the Charles Court acknowledged that the line 

between silence and prior statements 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 Court expressly 

repudiated this “formalistic understanding of ‘silence.’” Id. In place 

of that view, the Court reinforced the Fifth Amendment principles 

at the heart of Miranda and Doyle, holding that Doyle is implicated 

only when the prosecution makes reference 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 statements 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. Where (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 Fifth 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 United States Supreme Court. But any 

arguable doubt on the matter is resolved by our 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.
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¶107 Velarde accepts the above understanding of the Charles

opinion. 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 defendant 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 warnings. 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 to 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 home, 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 police 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 

defendant’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 guarantee to remain silent” by “talking freely with the 

officer” about the crime after receiving his Miranda warnings, 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 Fifth 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. 
STATE v. ARGUETA

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

34

Velarde speaks 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 

owned 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 spoke 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 cases. 

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 recounted 

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 entered 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 additional 

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.
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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 inconsistency 

we encounter today is exactly the kind of inconsistency we 

encountered in Velarde. See supra ¶¶ 111, 111 n.26. 

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

could not have addressed whether “inconsistent” statements 

include differences as well as outright contradictions, seesupra ¶ 53, 

because Velarde did not use the “key words” “‘supplemental,’ 

‘different,’ or ‘reconcilable,’”28 supra ¶ 54 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. See supra ¶ 51. But Argueta immediately waived

that right by blurting 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 evidenced 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 is 

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.27 (highlighting Velarde’s requirement that a defendant 

invoking Doyle must be able to show an “initial and sustained

(continued . . .)
STATE v. ARGUETA

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, supra ¶¶ 111, 111 n.26—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.” See supra ¶ 49. But I’m not sure how Velarde

could have been any 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 silent.” 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 right 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 speaks 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 accounts. Supra ¶¶ 111, 111 n.26. In these circumstances, 

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

__________________________________________________________

silence” and must not have “broke[n] the 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 

Velarde 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 Velardeis less than two pages long and has been cited only once 

for the proposition that a defendant’s “inconsistent testimony is 

legitimate basis for prosecutor’s questioning his credibility.” See

supra ¶¶ 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’ 

analysis under Velarde’s authority.