2016 UT App 189

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

JAMES RAPHAEL SANCHEZ,

Appellant.

Opinion

No. 20140749-CA

Filed September 1, 2016

Third District Court, Salt Lake Department

The Honorable Denise P. Lindberg

No. 111903659

John B. Plimpton, Ralph W. Dellapiana, and Teresa 

L. Welch, Attorneys for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys

for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which 

JUDGE MICHELE M. CHRISTIANSEN concurred. SENIOR JUDGE 

RUSSELL W. BENCH concurred except as to Part I, in which he 

concurred in the result, with opinion.

1

VOROS, Judge:

¶1 James Raphael Sanchez appeals his convictions for 

murder, a first degree felony, and obstruction of justice, a second 

degree felony. Sanchez beat his girlfriend (Victim) for hours 

before strangling her. He then attempted to clean the apartment 

before asking a friend to pick him up. His principal claim on 

appeal is that the court incorrectly excluded out-of-court 

 

1. Senior Judge Russell W. Bench sat by special assignment as 

authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
State v. Sanchez

20140749-CA 2 2016 UT App 189

statements that supported his mitigation theory of extreme 

emotional distress. He also claims that the evidence was 

insufficient to support his conviction for obstruction of justice. 

We affirm.

BACKGROUND

¶2 On the morning of May 5, 2011, Sanchez called 911. He 

refused to identify himself, but told dispatch ‚there’s a woman 

here, not breathing‛ at Victim’s apartment. When the 

paramedics arrived at the apartment, they found Victim ‚badly 

beaten, [not] breathing, and [with] obvious signs of rigor 

mortis.‛ Diffuse ‚deep red, purple‛ bruising and swelling 

covered Victim’s face. Her nose was fractured. ‚There was blood 

in the whites of both of her eyes.‛ The ‚inner surfaces of her 

lips‛ were torn, ‚as if the lip had been pulled away from the 

gum.‛ Her neck was bruised, consistent with strangulation. 

Victim’s torso, abdomen, legs, arms, hands, and buttocks also 

displayed ‚extensive‛ bruises ‚too numerous to count.‛ Eight of 

her ribs were fractured. Possible bite marks were found on 

Victim’s back and buttocks. Police also found blood throughout 

the apartment. Some of the blood looked diluted or as if 

someone had tried to wipe it away.

¶3 Victim’s neighbor had been kept awake by ‚muffled 

yelling, some grunting, and then some running around here and 

there, and then . . . a lot of crying, . . . like despair.‛ The sounds 

continued for at least five hours, but when the neighbor left for 

work at 8:15 a.m. ‚it was dead silent.‛ Sanchez told police that 

he ‚got into a fight with‛ Victim that lasted all night. He said 

‚that he slapped her, thumped her, and then he called the cops.‛ 

When asked to elaborate, he described punching, slapping, 

kicking, stomping, grabbing, and finally strangling Victim. 

Sanchez ‚said that she lost consciousness and that he attempted 

to revive her on a couple of occasions by breathing for her.‛ He 

also put Victim’s head under running water in an attempt to 
State v. Sanchez

20140749-CA 3 2016 UT App 189

revive her. When she lost consciousness for the last time, he lay 

down next to her and took a nap. When Sanchez woke up and 

Victim did not, he called a friend, then called 911. He left the 

apartment, leaving the door open for paramedics and police. His 

friend drove Sanchez to a convenience store, where Sanchez

again called 911. They then went to the friend’s house, where 

Sanchez took off his bloody pants and socks and took a nap.

¶4 At trial, the State introduced an interview between 

Sanchez and a police detective through the detective’s testimony. 

The interview was audio-recorded and transcribed. In the 

interview, Sanchez admitted to assaulting Victim. On crossexamination of the detective, Sanchez attempted to elicit 

testimony that would explain the reason for the assault—that 

‚he started fighting with *Victim+ because he thought she was 

cheating on him with his brother,‛ that ‚she admitted it and she 

kept saying it,‛ that ‚she wouldn’t tell [him] that‛ she would 

stop the affair, and that Victim’s statement ‚hurt *his+ feelings.‛

The trial court excluded the testimony, stating, ‚If you’re seeking 

to introduce . . . hearsay, unless you can give me an exception, 

it’s not coming in.‛ Sanchez argued, among other things, that the

court was required to admit the testimony under rule 106 of the 

Utah Rules of Evidence. The court determined that rule 106 did 

not require the court to admit the testimony. Sanchez did not 

testify at trial.

¶5 Sanchez also moved for a directed verdict on the 

obstruction-of-justice charge, arguing that the evidence failed to 

show that he acted with the requisite intent. The trial court 

denied the motion.

¶6 The jury convicted Sanchez of murder, a first degree 

felony, and obstruction of justice, a second degree felony. 

Sanchez appeals.
State v. Sanchez

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ISSUES ON APPEAL

¶7 Sanchez contends that under rule 106 of the Utah Rules of 

Evidence, the trial court was required to admit the part of his 

police interview in which he explained why he assaulted Victim,

because it was necessary to qualify, explain, or place into context 

the part of the statement in which he confessed to the assault.

¶8 Sanchez also contends that the evidence was insufficient 

to support his conviction for obstructing justice.

ANALYSIS

I. Utah Rule of Evidence 106

¶9 Sanchez contends that under rule 106 of the Utah Rules of 

Evidence, the trial court was required to admit the part of his 

police interview in which he explained why he assaulted Victim, 

because it was necessary to qualify, explain, or place into context 

the part of the statement in which he confessed to the assault. 

Sanchez attempted to introduce the part of his statement in 

which he told police that ‚he started fighting with [Victim] 

because he thought she was cheating on him with . . . his 

brother.‛ He said ‚this enraged him,‛ that Victim ‚admitted it 

and she kept saying it,‛ and that it ‚hurt *his+ feelings.‛

¶10 Rule 106 of the Utah Rules of Evidence ‚permits 

introduction of an otherwise inadmissible statement if the 

opposing party introduces a portion of the statement.‛ State v. 

Jones, 2015 UT 19, ¶ 40, 345 P.3d 1195.

If a party introduces all or part of a writing or

recorded statement, an adverse party may require 

the introduction, at that time, of any other part—or 

any other writing or recorded statement—that in 

fairness ought to be considered at the same time.
State v. Sanchez

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Utah R. Evid. 106. The rule ‚serves a protective function to 

prevent a misleading impression created by taking matters out 

of context.‛ Jones, 2015 UT 19, ¶ 40 (citation and internal 

quotation marks omitted).

¶11 We ‚review a trial court’s decision to admit or exclude 

specific evidence for an abuse of discretion.‛ Id. ¶ 12 (citation 

and internal quotation marks omitted). ‚In circumstances where 

evidence should have been admitted, it is reviewed for harmless 

error.‛ State v. Colwell, 2000 UT 8, ¶ 26, 994 P.2d 177. ‚If it is 

reasonably likely a different outcome would result with the 

introduction of the evidence and confidence in the verdict is 

undermined, then exclusion is harmful.‛ Id.

¶12 We first consider whether the trial court erred when it 

excluded Sanchez’s statement under the fairness standard of rule 

106. Because we conclude that the court exceeded its discretion 

when it excluded the statement under the fairness standard, we 

then consider whether Sanchez’s statement was hearsay and, if

so, whether rule 106 creates a hearsay exception. And because 

we conclude that rule 106 does create a hearsay exception, we 

then consider whether the erroneous exclusion of the statement 

was harmless.

A. The Fairness Standard

¶13 Rule 106 allows a party to admit the balance of a written 

or recorded statement ‚that in fairness ought to be considered at 

the same time‛ as the rest of the statement. Utah R. Evid. 106. 

The rule ‚establishes a fairness standard that requires admission 

of those things that are relevant and necessary to qualify, 

explain, or place into context the portion already introduced.‛ 

Jones, 2015 UT 19, ¶ 40 (citation and internal quotation marks 

omitted). ‚It thus serves a protective function to prevent a 

misleading impression created by taking matters out of context.‛ 

Id. (citation and internal quotation marks omitted). ‚The trial 

court has considerable discretion in determining issues of 
State v. Sanchez

20140749-CA 6 2016 UT App 189

fairness . . . .‛ State v. Leleae, 1999 UT App 368, ¶ 45, 993 P.2d 232.

‚In determining whether a disputed portion of a statement must 

be admitted [under the federal version of rule 106], the trial 

court should consider whether (1) it explains the admitted 

evidence, (2) places the admitted evidence in context, (3) avoids 

misleading the jury, and (4) insures fair and impartial 

understanding of the evidence.‛ United States v. Lopez-Medina, 

596 F.3d 716, 735 (10th Cir. 2010) (citation and internal quotation 

marks omitted).2

¶14 The trial court here ruled that ‚the fairness analysis does 

not require the admission of *Sanchez’s+ statements offered to 

explain the reasons for his brutal assault on the victim,‛ because 

the explanation was ‚a self-serving, after-the-fact explanation.‛ 

The court also ruled that the fairness standard did not require 

the admission of Sanchez’s explanation, because it was 

‚temporally removed‛—separated by sixteen pages in the 

transcript—from the confession introduced by the prosecution. 

Sanchez argues that ‚neither of these reasons is valid for 

excluding evidence offered under rule 106.‛

¶15 In ruling that the fairness standard did not require the 

admission of a self-serving explanation, the trial court relied on 

this court’s opinion in Leleae, 1999 UT App 368. In Leleae, the trial 

court ruled that fairness did not require admission of a statement

where ‚the statement was merely self-serving.‛ Id. ¶ 45. We 

 

2. Utah appellate courts have had little occasion to consider rule 

106. See State v. Jones, 2015 UT 19, ¶¶ 40–42, 345 P.3d 1195; State 

v. Leleae, 1999 UT App 368, ¶¶ 42–46, 993 P.2d 232; see also State 

v. Cruz-Meza, 2003 UT 32, ¶¶ 9–14, 76 P.3d 1165 (comparing rule 

106 to ‚the doctrine of oral completeness‛ under rule 611). 

However, Utah Rule of Evidence 106 ‚is the federal rule, 

verbatim,‛ Utah R. Evid. 106 advisory committee note, so ‚we 

look to federal cases interpreting Rule 106 as persuasive but not 

necessarily binding authority,‛ Leleae, 1999 UT App 368, ¶ 43 n.5.
State v. Sanchez

20140749-CA 7 2016 UT App 189

concluded that the trial court had not abused its discretion, but 

we did so noting that although the statement had been excluded, 

‚the jury heard testimony that supported defendant’s version of 

the incident and put the admitted portion of defendant’s 

statement in context.‛ Id. The statement that the defendant 

sought to admit under rule 106 was therefore not ‚necessary to 

qualify, explain, or place into context the portion already 

introduced,‛ Jones, 2015 UT 19, ¶ 40 (citation and internal 

quotation marks omitted), because other admitted testimony 

served to place the testimony into context. Leleae, 1999 UT App 

368, ¶ 45.

¶16 That is not the case here. Because Sanchez did not testify, 

no other testimony presented his explanation that ‚he started 

fighting with [Victim] because he thought she was cheating on 

him with . . . his brother.‛ Moreover, ‚*t+here is no legal 

principle which excludes statements or conduct of a party solely 

on the ground they are self-serving. If otherwise admissible, a 

party has as much right to his own evidence as to the evidence of 

any other witness.‛ State v. Johnson, 671 P.2d 215, 216 (Utah 1983) 

(per curiam).3 But cf. Glauser Storage, LLC v. Smedley, 2001 UT 

App 141, ¶ 24, 27 P.3d 565 (‚Even where testimony is 

uncontroverted, a trial court is free to disregard such testimony 

if it finds the evidence self-serving and not credible.‛ (citation 

and internal quotation marks omitted)). Although the statement 

was self-serving, fairness required that Sanchez be allowed ‚to 

qualify, explain, or place into context‛ the portion of his 

confession introduced by the detective’s testimony. See Jones, 

2015 UT 19, ¶ 40 (citation and internal quotation marks omitted).

 

3. The trial court ruled that Victim’s statement was inadmissible 

hearsay. But as we discuss below, see infra ¶ 21, Victim’s 

statement was not offered for the truth of the matter asserted 

and was therefore not hearsay.
State v. Sanchez

20140749-CA 8 2016 UT App 189

¶17 The trial court also ruled that Sanchez’s statement ‚was 

temporally removed from the inculpatory statements that had 

been received without objection.‛ The court explained that it 

believed rule 106 and the rule of completeness were implicated 

‚when there is a fragment of a sentence, or a fragment of a 

paragraph, that is being introduced, but in fairness, to get a full 

context of that—of the import of that limited statement, the 

whole statement should be read, then that’s when the Rule of 

Completeness applies.‛ The court concluded with, ‚I do not 

believe that it’s implicated when we are addressing parts of an 

interview that are, as was represented to me, twenty or more 

pages apart . . . .‛ Sanchez argues that ‚the touchstone of rule 

106 is fairness without regard to the temporal proximity of the 

pertinent parts of the statement.‛

¶18 We agree with Sanchez. Rule 106 allows a party to 

introduce ‚any other part‛ of a recorded statement that qualifies, 

explains, or places into context a statement introduced by the 

opposing party. See Utah R. Evid. 106. The rule does not limit the 

adverse party to ‚a fragment of a sentence‛ or ‚a fragment of a 

paragraph.‛ ‚Underlying Rule 106 [of the Federal Rules of 

Evidence] . . . is a principle of fairness requiring the introduction 

of an entire or related document if necessary for the fair and 

impartial understanding of the admitted portion or document.‛ 

Phoenix Assocs. III v. Stone, 60 F.3d 95, 102 (2d Cir. 1995) (citation 

and internal quotation marks omitted). Determining what must 

be admitted in fairness under rule 106 ‚becomes a line-drawing 

exercise, to be conducted case by case.‛ United States v. Boylan, 

898 F.2d 230, 256 (1st Cir. 1990) (applying the federal analogue of 

our rule 106). We conclude that in this case, the trial court drew 

that line unreasonably close to the portion of the record already 

admitted. Sanchez’s explanation for the assault was part of the 

same interview with the same detective and, even if it had been 

given at a later point, qualified his confession.

¶19 Having concluded that the trial court exceeded its 

discretion by not admitting Sanchez’s statement under rule 106’s 
State v. Sanchez

20140749-CA 9 2016 UT App 189

fairness standard, we now turn to the question of whether that 

same standard allows the admission of otherwise inadmissible 

hearsay.

B. Hearsay Exception

¶20 Sanchez contends that the trial court erred when it 

excluded his statement as ‚double hearsay,‛ or hearsay within 

hearsay. Sanchez sought to admit his statement to police about 

what Victim had said to him—that Victim ‚admitted‛ she was 

cheating on him with his brother and that ‚she kept saying it.‛ 

He argues that his statement did not constitute double hearsay 

because Victim’s statement is not hearsay. Victim’s statement is 

not hearsay, he reasons, ‚because it was not offered for the truth 

of the matter asserted in it.‛ ‚Whether a statement is offered for 

the truth of the matter asserted is a question of law, which we 

review under a correction of error standard.‛ State v. Haltom, 

2005 UT App 348, ¶ 8, 121 P.3d 42 (citation and internal 

quotation marks omitted). He further argues that his statement 

was admissible hearsay under rule 106 of the Utah Rules of 

Evidence. We ‚review a trial court’s decision to admit or exclude 

specific evidence for an abuse of discretion.‛ State v. Jones, 2015 

UT 19, ¶ 12, 345 P.3d 1195 (citation and internal quotation marks 

omitted).

¶21 Hearsay, as defined by the Utah Rules of Evidence, is ‚a 

statement that: (1) the declarant does not make while testifying 

at the current trial or hearing; and (2) a party offers in evidence 

to prove the truth of the matter asserted in the statement.‛ Utah 

R. Evid. 801(c). ‚However, if an out-of-court statement is offered 

simply to prove that it was made, without regard to whether it is 

true, such testimony is not proscribed by the hearsay rule.‛ State 

v. Olsen, 860 P.2d 332, 335 (Utah 1993) (citation and internal 

quotation marks omitted). ‚Often statements of this type merely 

reveal people’s motives for later actions.‛ State v. McNeil, 2013 

UT App 134, ¶ 48, 302 P.3d 844, aff’d, 2016 UT 3, ¶ 46, 365 P.3d 

699. Sanchez argues, and we agree, that he attempted to offer 
State v. Sanchez

20140749-CA 10 2016 UT App 189

Victim’s statement ‚simply to prove that it was made,‛ see Olsen, 

860 P.2d at 335 (citations and internal quotation marks omitted), 

and not to prove that Victim was in fact cheating on Sanchez 

with his brother. Accordingly, the trial court erred when it ruled 

that Victim’s statement to Sanchez—the statement within 

Sanchez’s own hearsay statement—was hearsay.

¶22 Sanchez concedes that his statement to police was 

hearsay, but argues that it was ‚admissible hearsay under Rule 

106.‛ In other words, Sanchez contends that a portion of a 

recorded statement that ‚in fairness ought to be considered‛

under rule 106 need not also satisfy the hearsay rule. See Utah R. 

Evid. 106. Although this is not the first time the question has 

been presented to a Utah appellate court, no Utah court has 

decided it. See Jones, 2015 UT 19, ¶ 41. We now conclude that rule 

106 allows the admission of otherwise inadmissible hearsay if 

under the fairness standard the evidence should be considered.

¶23 The state and federal rule 106 is at minimum a rule of 

timing. See Fed. R. Evid. 106 advisory committee note (‚The rule 

is based on two considerations . . . . The second is the inadequacy 

of repair work when delayed to a point later in the trial.‛). See, 

e.g., United States v. Adams, 722 F.3d 788, 826 (6th Cir. 2013);

United States v. Sutton, 801 F.2d 1346, 1368 (D.C. Cir. 1986); Sipary 

v. State, 91 P.3d 296, 300 (Alaska Ct. App. 2004). ‚Because 

admitting the curative evidence later in the trial may not be 

adequate to remedy the effect of the misleading impression, Rule 

106 authorizes a party to interrupt the proceedings to have the 

curative evidence introduced immediately.‛ United States v.

Holden, 557 F.3d 698, 705 (6th Cir. 2009). Courts that read rule 

106 solely as a rule of timing focus on the final provision of the 

rule that allows the adverse party to complete a statement or 

place a statement into context ‚at the same time‛ as the original 

evidence. See, e.g., United States v. Costner, 684 F.2d 370, 373 (6th 

Cir. 1982) (‚Rule 106 is intended to eliminate the misleading 

impression created by taking a statement out of context. The rule 
State v. Sanchez

20140749-CA 11 2016 UT App 189

covers an order of proof problem; it is not designed to make 

something admissible that should be excluded.‛).

¶24 We now consider whether Utah’s version of rule 106 is 

also a rule of admissibility; that is, whether it can ‚overcome rule 

802’s prohibition against hearsay.‛ Jones, 2015 UT 19, ¶ 41.

Courts are about equally divided on whether rule 106 operates 

to admit otherwise inadmissible hearsay. See id. ¶ 41 n.56.4

 

4. By our count, four federal circuit courts of appeals read rule 

106 to admit otherwise inadmissible hearsay. See, e.g., United 

States v. Harry, 816 F.3d 1268, 1279–80 (10th Cir. 2016); United 

States v. Bucci, 525 F.3d 116, 133 (1st Cir. 2008); United States v. 

Johnson, 507 F.3d 793, 796 (2d Cir. 2007); United States v. Sutton, 

801 F.2d 1346, 1368 (D.C. Cir. 1986). Five circuits do not read rule 

106 to admit otherwise inadmissible hearsay. See, e.g., United 

States v. Hassan, 742 F.3d 104, 134 (4th Cir. 2014); United States v. 

Vargas, 689 F.3d 867, 876 (7th Cir. 2012); United States v. RamosCaraballo, 375 F.3d 797, 803 (8th Cir. 2004); United States v. 

Collicott, 92 F.3d 973, 983 (9th Cir. 1996); United States v. Costner, 

684 F.2d 370, 373 (6th Cir. 1982). Of the five circuits that have 

appeared to hold that the rule of completeness does not trump 

other restrictions on the admissibility of evidence, at least four 

have done so only in dicta. Michael A. Hardin, This Space 

Intentionally Left Blank: What To Do When Hearsay and Rule 106 

Completeness Collide, 82 Fordham L. Rev. 1283, 1312 (2013) (‚A 

particular pattern emerges in these cases. Courts of this view 

often state that Rule 106 cannot render inadmissible remainders 

admissible, but then go on to find other reasons not to admit the 

remainder*.+‛). ‚The Supreme Court *has+ ducked this issue by 

holding that whether or not it was usable under Rule 106 [of the 

Federal Rules of Evidence], a party could introduce the 

remainder of a truncated letter as part of his own case under the 

common law completeness doctrine.‛ Charles Alan Wright and 

Kenneth W. Graham, Jr., 21A Federal Practice and Procedure

(continued<)
State v. Sanchez

20140749-CA 12 2016 UT App 189

¶25 We begin with the language of the rule. See State v. Vessey, 

957 P.2d 1239, 1240 (Utah Ct. App. 1998) (per curiam) (‚When 

the language of a rule or statute is unambiguous, Utah courts 

have consistently held the rule’s plain language must be 

followed.‛).The rule states that ‚*i+f a party introduces all or part 

of a writing or recorded statement, an adverse party may require 

the introduction, at that time, of any other part—or any other 

writing or recorded statement—that in fairness ought to be 

considered at the same time.‛ Utah R. Evid. 106. The key term is 

introduction. Does the adverse party’s right to require the

introduction of the omitted evidence mean that the adverse party 

has a right to insist that it merely be offered into evidence, or 

that it also be admitted into evidence? In context, we read the 

term introduce as synonymous with admit. Black’s Law 

Dictionary defines ‚introduce into evidence‛ as ‚*t+o have (a fact 

 

(<continued)

§ 5078.1 (2d ed. 2016) (citing Beech Aircraft Corp. v. Rainey, 488 

U.S. 153, 170–73 (1988)). 

The states are similarly divided. Compare Liftee v. Boyer, 

117 P.3d 821, 833 (Haw. Ct. App. 2004) (stating that rule 106 

allows for the admission of otherwise inadmissible evidence); 

Nickell v. Russell, 614 N.W.2d 349, 355 (Neb. 2000) (same); Walters 

v. State, 247 S.W.3d 204, 217–18 (Tex. Crim. App. 2007) (same); 

State v. Gray, 511 S.E.2d 873, 876–77 (W. Va. 1998) (same); State v. 

Eugenio, 579 N.W.2d 642, 651–52 (Wis. 1998) (same); Hayes v. 

State, 935 P.2d 700, 706 (Wyo. 1997) (same), with Stoneking v. 

State, 800 P.2d 949, 951–52 (Alaska Ct. App. 1990) (stating that 

rule 106 does not make admissible an otherwise inadmissible 

statement); Banther v. State, 823 A.2d 467, 487 (Del. 2003) (same); 

McAtee v. Commonwealth, 413 S.W.3d 608, 630 (Ky. 2013) (same); 

Simmons Oil Corp. v. Wells Fargo Bank, N.A., 1998 MT 129, ¶ 30, 

960 P.2d 291 (same); State v. Holmes, 602 N.E.2d 1197, 1199 (Ohio 

Ct. App. 1991) (same); State v. Tooley, 333 P.3d 348, 357–58 (Or. 

Ct. App. 2014) (same).
State v. Sanchez

20140749-CA 13 2016 UT App 189

or object) admitted into the trial record, allowing it to be 

considered by the jury or the court in reaching a decision.‛ 

Introduce Into Evidence, Black’s Law Dictionary (10th ed. 2014). 

Other rules of admissibility similarly use introduce

synonymously with admit. See, e.g., Utah R. Evid. 410; id. R. 602; 

id. R. 612. Also, judicial opinions typically use the phrase 

introduce into evidence to mean introduce and have admitted into 

evidence. See, e.g., State v. Mahi, 2005 UT App 494, ¶ 17, 125 P.3d 

103 (stating that a litigant ‚cannot introduce potentially 

inflammatory evidence and then later complain when the 

opposing party attempts to rebut it‛ (emphasis added)).

Furthermore, a contrary reading of the word introduce would 

allow the adverse party to require merely that the additional 

portion of the statement be offered, but would not require the 

court to admit it, rendering the right granted by the rule all but 

illusory.

¶26 When considering the relation of the analogous federal 

rule 106’s relation to inadmissible hearsay, the United States 

Court of Appeals for the District of Columbia Circuit observed 

that the rule ‚is found not in Rule 611, which governs the ‘Mode 

and Order of Interrogation and Presentation,’ but in Article I, 

which contains rules that generally restrict the manner of 

applying the exclusionary rules.‛ Sutton, 801 F.2d at 1368

(citation omitted). The court also noted that ‚every major rule of 

exclusion . . . contains the proviso, ‘except as otherwise provided 

by these rules,’ which indicates ‘that the draftsmen knew of the 

need to provide for relationships between rules and were 

familiar with a technique for doing this.’‛ Id. (citation omitted). 

But ‚*t+here is no such proviso in Rule 106, which indicates that 

Rule 106 should not be so restrictively construed.‛ Id.

¶27 This reasoning applies equally to Utah’s version of rule 

106, and we find it persuasive. Utah Rule of Evidence 106 

appears in Article I, titled ‚General Provisions,‛ and not rule 

611, which governs ‚mode and order of examining witnesses 

and presenting evidence.‛ The drafters of the Utah Rules of 
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20140749-CA 14 2016 UT App 189

Evidence also established relationships between the rules 

through the use of phrases such as ‚if the statement is otherwise 

admissible under the law‛ and ‚if the evidence is otherwise 

admissible under these rules.‛ See, e.g., Utah R. Evid. 412(b); id.

R. 616. But Utah rule 106 lacks such a proviso.

¶28 Rule 807 of the Utah Rules of Evidence also supports our 

conclusion that rule 106 operates to create a hearsay exception.

Rule 807 provides that ‚a hearsay statement is not excluded by 

the rule against hearsay even if the statement is not specifically 

covered by a hearsay exception‛ so long as it falls into certain 

broad categories, such as if ‚admitting it will best serve the 

purposes of these rules and the interests of justice.‛ Utah R. 

Evid. 807(a). Sanchez does not rely on rule 807’s residual hearsay 

exception or claim that he satisfied the notice requirements of 

rule 807(b). But it is difficult to see how a statement that in 

fairness ought to be considered would not serve the interests of 

justice, or why a proponent of one portion of a recorded 

statement would need notice of another portion of the same 

statement.

¶29 Finally, treatises on the Utah Rules of Evidence advise 

that ‚*i+f a party offers a portion of prior testimony, then the 

opposing party should be entitled to offer any additional portion 

of the testimony that would qualify or explain the admitted 

portion, even if the omitted portion would otherwise be 

inadmissible as hearsay or an improper opinion.‛ R. Collin 

Mangrum & Dee Benson, Mangrum & Benson on Utah Evidence 67 

(2015); Edward Kimball & Ronald Boyce, Utah Evidence Law 1-36, 

1-37 (2d ed. 2004) (‚The rule is sometimes said not to allow 

admission of otherwise inadmissible evidence, but if the 

objectionable evidence (for example, hearsay) is needed to 

provide context and understanding, fairness seems to require its 

admission.‛). See also McCormick on Evidence § 56 (7th ed. 2016)

(footnotes omitted) (‚At least when the other passage of the 

writing or statement is so closely connected to the part the 

proponent contemplates introducing that it furnishes essential 
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20140749-CA 15 2016 UT App 189

context for that part, the passage becomes admissible on a 

nonhearsay theory.‛); Faust F. Rossi, Evidence: 1999–2000 Survey 

of New York Law, 51 Syracuse L. Rev. 489, 498–99 (2001) 

(explaining that although a number of states hold that the 

explanatory portion of a statement may be admitted under the 

rule of completeness only if it is otherwise admissible, that 

‚approach makes little sense. If the explanation required to 

prevent distortion must be admissible independent of its 

corrective function, then the purpose of the rule of completeness 

is defeated.‛).

¶30 In sum, we believe the purpose and scope of rule 106 

extend beyond timing and order of proof. A rule that focuses on

fairness ‚can adequately fulfill its function only by permitting 

the admission of some otherwise inadmissible evidence when 

the court finds in fairness that the proffered evidence should be 

considered contemporaneously.‛ Sutton, 801 F.2d at 1368. We 

therefore conclude that the ‚fairness principle can override the 

rule excluding hearsay.‛ United States v. Harry, 816 F.3d 1268, 

1279–80 (10th Cir. 2016).5 ‚Even if the *statement+ would be 

 

5. The concurrence cites the reasoning of circuit courts that have 

held that if rule 106 is a rule of admissibility, a criminal 

defendant ‚would be ‘able to place his exculpatory statements 

before the jury without subjecting [himself] to crossexamination, precisely what the hearsay rule forbids.’‛ Infra ¶ 54

(alteration in original) (quoting United States v. Ortega, 203 F.3d 

675, 682 (9th Cir. 2000). But rule 106 is not a backdoor to admit 

any exculpatory statement by a defendant; rather, rule 106 

admits only those portions of written or recorded statements 

that in fairness ought to be admitted. ‚The contours of the 

fairness standard are rather vague and courts have enormous 

discretion in applying the rule.‛ United States v. Harry, 816 F.3d 

1268, 1280 (10th Cir. 2016) (citations and internal quotation 

marks omitted). ‚The rule does not . . . require the admission of 

(continued<)
State v. Sanchez

20140749-CA 16 2016 UT App 189

subject to a hearsay objection, that does not block its use when it 

is needed to provide context for a statement already admitted.‛ 

United States v. Lopez-Medina, 596 F.3d 716, 735 (10th Cir. 2010).6

¶31 Because we have concluded that, in fairness, Sanchez’s 

statement should have been admitted by the trial court, and 

further that the hearsay rule does not prohibit its admission, we 

now determine whether the exclusion of the statement was, as 

the State additionally contends, harmless error. See State v. 

Colwell, 2000 UT 8, ¶ 26, 994 P.2d 177.

 

(<continued)

portions of a statement that are neither explanatory of nor 

relevant to the admitted passages.‛ United States v. Kopp, 562 

F.3d 141, 144 (2d Cir. 2009) (citation and internal quotation 

marks omitted). See, e.g., United States v. Gramajo, 565 F. App’x 

723, 728 (10th Cir. 2014) (holding the district court properly 

excluded defendant’s statement that did not ‚explain or clarify‛ 

the admitted statements); United States v. Gonzalez, 399 F. App’x 

641, 645 (2d Cir. 2010) (holding that ‚the rule of completeness is 

not a mechanism to bypass hearsay rules for any self-serving 

testimony‛ and that ‚*i+t was within the district court’s 

discretion to conclude that the admitted portion of *defendant’s+ 

statements did not distort the meaning of the full statement or 

exclude information that was substantially exculpatory‛); United 

States v. Johnson, 507 F.3d 793, 797 (2d Cir. 2007) (concluding that 

‚the redacted statements were neither explanatory of nor 

relevant to the admitted passages . . . and the District Court 

therefore did not err in refusing to admit them‛ (citation and 

internal quotation marks omitted)).

6. We do not address any potential interplay between rule 106 

and the Confrontation Clause, as this case does not present that 

issue.
State v. Sanchez

20140749-CA 17 2016 UT App 189

C. Harmless Error

¶32 ‚In circumstances where evidence should have been 

admitted, it is reviewed for harmless error.‛ Id. ‚Based upon the 

concept that the trial court is best situated to determine what, if 

any, impact an alleged error will have on the proceedings, . . . we 

will reverse only where an error is so prejudicial and so 

substantial that, absent the error, it is reasonably probable that 

the result would have been more favorable for the defendant.‛ 

State v. Thomas, 1999 UT 2, ¶ 26, 974 P.2d 269 (citations omitted). 

‚In other words, the ‘mere possibility’ of a different outcome 

occurring without the evidence is not enough; instead, ‘the 

likelihood of a different outcome must be sufficiently high to 

undermine confidence in the verdict.’‛ Id. (emphasis in original) 

(quoting State v. Knight, 734 P.2d 913, 920 (Utah 1987)).

¶33 A different standard of harm applies to federal 

constitutional error. If a defendant preserves a claim of federal 

constitutional error at trial and establishes a constitutional 

violation on appeal, the burden shifts to the State to demonstrate 

that the error was harmless beyond a reasonable doubt. State v. 

Clark, 2016 UT App 120, ¶ 8, __ P.3d __ (citing State v. McCallie, 

2016 UT App 4, ¶ 12, 369 P.3d 103 (citing Brecht v. Abrahamson, 

507 U.S. 619, 630 (1993); Chapman v. California, 386 U.S. 18, 24

(1967); and State v. Calliham, 2002 UT 86, ¶ 45, 55 P.3d 573)). This 

is known as the Chapman standard, after the United States 

Supreme Court case that announced it. Sanchez contends that 

the rule 106 error at issue here was harmful under either the 

Chapman standard applicable to federal constitutional error or 

the ordinary standard applicable to non-constitutional error.7

 

7. Utah courts have not determined whether the harmlessbeyond-a-reasonable-doubt standard applies to violations of the 

Utah Constitution. See State v. Bell, 770 P.2d 100, 106 n.12 (Utah 

1988) (noting that ‚this Court has never squarely decided 

(continued<)
State v. Sanchez

20140749-CA 18 2016 UT App 189

¶34 First, Sanchez claims the benefit of the Chapman standard. 

He argues that the trial court’s exclusion of his rule 106 

statement ‚was prejudicial because it precluded *him] from 

presenting his theory of the case,‛ which was that ‚he was 

entitled to special mitigation because he killed [Victim] under 

the influence of extreme emotional distress for which there was a 

reasonable explanation or excuse.‛ He further argues, citing 

Holmes v. South Carolina, 547 U.S. 319, 324 (2006), and State v. 

McCullar, 2014 UT App 215, ¶¶ 53–59, 335 P.3d 900, that the 

error rose to constitutional proportion because it ‚deprived 

*him+ of his due process right to present a complete defense.‛ 

Consequently, he reasons, the error requires reversal unless this 

court concludes that it was harmless beyond a reasonable doubt. 

See Chapman, 386 U.S. at 24; Calliham, 2002 UT 86, ¶ 45. In effect, 

Sanchez attempts to elevate a single rule 106 violation, which 

affected the application of the special mitigation statute, to 

federal constitutional status.

¶35 We reject this contention for two independent reasons. 

First, any claim of federal constitutional error is unpreserved. To 

preserve an issue for appeal, ‚the issue must be presented to the 

trial court in such a way that the trial court has an opportunity to 

rule on that issue.‛ 438 Main St. v. Easy Heat, Inc., 2004 UT 72, 

¶ 51, 99 P.3d 801 (citation and internal quotation marks omitted). 

Sanchez does not claim to have alerted the trial court that 

denying his rule 106 motion would deprive him of his ‚due 

process right to present a complete defense.‛ On the contrary, he 

told the court, ‚I don’t think that without that evidence, the 

defense has a basis to argue special mitigation . . . I do have an 

alternative defense.‛ Just as an objection based on the federal 

 

(<continued)

whether violations of the Utah Constitution must be addressed 

under the federal constitutional standard of ‘harmless beyond a 

reasonable doubt’‛).
State v. Sanchez

20140749-CA 19 2016 UT App 189

constitution does not preserve a claim of state constitutional 

error, see State v. Worwood, 2007 UT 47, ¶ 19, 164 P.3d 397, an 

objection based on state law does not preserve a claim of federal 

constitutional error. Preservation requires an appellant to 

‚present the legal basis for her claim to the trial court, not merely 

the underlying facts or a tangentially related claim.‛ State v. 

Kennedy, 2015 UT App 152, ¶ 20, 354 P.3d 775. ‚*I+n general, 

appellate courts will not consider an issue, including 

constitutional arguments, raised for the first time on appeal 

unless the trial court committed plain error or the case involves 

exceptional circumstances.‛ State v. Dean, 2004 UT 63, ¶ 13, 95 

P.3d 276. Sanchez claims neither exception to the preservation 

rule here.

¶36 Second, Sanchez has not demonstrated that the denial of 

the benefit of special mitigation constitutes a denial of his federal 

due process right to present a complete defense.8 As relevant 

here, ‚*s+pecial mitigation exists when the actor causes the death 

of another . . . under the influence of extreme emotional distress 

for which there is a reasonable explanation or excuse.‛ Utah 

Code Ann. § 76-5-205.5(1) (LexisNexis 2012). ‚The 

reasonableness of an explanation or excuse . . . shall be 

determined from the viewpoint of a reasonable person under the 

then existing circumstances.‛ Id. § 76-5-205.5(4). ‚If a jury is the 

trier of fact, a unanimous vote of the jury is required to establish 

the existence of special mitigation.‛ Id. § 76-5-205.5(6)(a).

¶37 In State v. Drej, our supreme court rejected a due process 

challenge to the special mitigation statute. See 2010 UT 35, ¶ 21

233 P.3d 476. In Drej, the defendant argued that the special 

mitigation statute was unconstitutional ‚because it places the 

 

8. In fact, he has cited no case from any jurisdiction supporting 

his claim that Holmes error requires application of the Chapman

standard. Neither the United States Supreme Court in Holmes

nor this court in McCullar recited the Chapman standard.
State v. Sanchez

20140749-CA 20 2016 UT App 189

burden of proving special mitigation on the defendant, in 

violation of the due process clauses of the state and federal 

constitutions.‛ Id. ¶ 1. Our supreme court held that ‚the 

legislature elected to require the defendant to prove special 

mitigation by a preponderance of the evidence.‛ Id. ¶ 21; see 

Utah Code Ann. § 76-5-205.5(5)(a), (b)(iii). ‚As special mitigation 

is not a defense to the underlying primary charge of murder, it 

cannot run afoul of the federal constitution or state law.‛ Drej, 

2010 UT 35, ¶ 21.

¶38 Sanchez has not explained, nor is it obvious, why 

depriving a defendant of the benefit of a statute that is not a 

defense to the underlying primary charge of murder deprives 

him of his federal due process right to present a complete 

defense. Nor has he explained how depriving him of the benefit 

of special mitigation could violate federal due process when, in 

rejecting a due process challenge, our supreme court held that 

special mitigation ‚cannot run afoul of the federal constitution.‛ 

Id.

¶39 In sum, Sanchez has not shown that federal due process 

requires application of the Chapman standard here. We thus 

proceed under the usual standard for assessing harm as set forth 

above.

¶40 Under the special mitigation statute, ‚the fact finder must 

determine whether (1) subjectively, the defendant committed the 

killing while under the influence of extreme emotional distress, 

and (2) objectively, a reasonable person would have experienced 

an extreme emotional reaction and loss of control under the 

circumstances.‛ Ross v. State, 2012 UT 93, ¶ 28, 293 P.3d 345. A 

person acts under the influence of extreme emotional distress 

‚when he is exposed to extremely unusual and overwhelming 

stress that would cause the average reasonable person under the 

same circumstances to experience a loss of self-control, and be 

overborne by intense feelings, such as passion, anger, distress, 

grief, excessive agitation, or other similar emotions.‛ State v. 
State v. Sanchez

20140749-CA 21 2016 UT App 189

White, 2011 UT 21, ¶ 26, 251 P.3d 820 (citation and internal 

quotation marks omitted).9

¶41 ‚This standard requires a trier of fact to put herself in the 

shoes of a reasonable person in the defendant’s situation to 

determine whether the defendant’s reaction to a series of events 

was reasonable.‛ Id. ¶ 37. ‚The standard is not whether the 

defendant thought her reaction was reasonable, but whether a 

 

9. What is generally known as the provocation defense has for 

two decades been criticized as mitigating violence committed by 

men against women in intimate relationships. It now ‚is one of 

the most controversial doctrines in the criminal law because of 

its perceived gender bias; yet most American scholars and 

lawmakers have not recommended that it be abolished.‛ 

Carolyn B. Ramsey, Provoking Change: Comparative Insights on 

Feminist Homicide Law Reform, 100 J. Crim. L. & Criminology 33, 

33 (2010). See also Emily L. Miller, (Wo)manslaughter: Voluntary 

Manslaughter, Gender, and the Model Penal Code, 50 Emory L.J. 665, 

667 (2001) (‚Voluntary manslaughter has never been a femalefriendly doctrine.‛); Victoria Nourse, Passion’s Progress: Modern 

Law Reform and the Provocation Defense, 106 Yale L.J. 1331, 1322 

(1997) (‚Our most modern and enlightened legal ideal of 

‘passion’ reflects, and thus perpetuates, ideas about men, 

women, and their relationships that society long ago 

abandoned.‛); Laurie J. Taylor, Provoked Reason in Men and 

Women: Heat-of-Passion Manslaughter and Imperfect Self-Defense, 33 

UCLA L. Rev. 1679, 1679 (1986) (‚*T+he legal standards that 

define adequate provocation and passionate ‘human’ 

weaknesses reflect a male view of understandable homicidal 

violence.‛). We note that Utah Code section 76-5-205.5 is cast in 

gender-neutral terms and has been so applied by our courts. See, 

e.g., State v. White, 2011 UT 21, ¶ 1, 251 P.3d 820.
State v. Sanchez

20140749-CA 22 2016 UT App 189

reasonable person facing the same situation would have reacted 

in a similar way.‛ Id.10

¶42 Sanchez argues that ‚he was entitled to special mitigation 

because he assaulted [Victim] under extreme emotional distress 

caused by her repeatedly telling him that she was cheating on 

him with his brother.‛ To establish the requisite extreme 

emotional distress, Sanchez sought to admit his statement to 

police that ‚he started fighting with *Victim+ because he thought 

she was cheating on him with . . . his brother.‛ He said ‚this 

enraged him,‛ that Victim ‚admitted it and she kept saying it,‛ 

and ‚that hurt *his+ feelings.‛

¶43 We are not persuaded that Sanchez has shown a 

reasonable probability that, with this evidence, he could have 

met his burden of proving the requisite extreme emotional 

distress under the White standard. Even though he was 

‚enraged‛ and his feelings were hurt, the special mitigation 

standard, as explained, ‚requires a trier of fact to put herself in 

the shoes of a reasonable person in the defendant’s situation to 

determine whether the defendant’s reaction to a series of events 

was reasonable.‛ Id. ‚The standard is not whether the defendant 

thought her reaction was reasonable, but whether a reasonable 

 

10. The ‚similar way‛ standard hews a middle course between 

competing approaches to what is generally known as the 

provocation defense. Under the more prosecution-friendly view, 

adequate provocation exists only if ‚a reasonable person would 

have killed under the same circumstances (sometimes called ‘act 

reasonableness’).‛ Aya Gruber, A Provocative Defense, 103 Cal. L. 

Rev. 273, 275 (2015). Under the more defense-friendly view, 

adequate provocation exists if ‚a reasonable person would have 

been provoked to act rashly (sometimes called ‘emotion 

reasonableness’).‛ Id. We understand the ‚similar way‛ standard 

to require more than ‚emotion reasonableness‛ yet less than ‚act 

reasonableness.‛
State v. Sanchez

20140749-CA 23 2016 UT App 189

person facing the same situation would have reacted in a similar 

way.‛ Id.

¶44 We do not agree with Sanchez that a reasonable person, 

hearing that his or her romantic partner was cheating with his or 

her sibling, would have reacted ‚in a similar way.‛ Sanchez beat 

Victim for at least five, and probably over nine, hours. He 

described punching, slapping, kicking, stomping, grabbing, and 

ultimately strangling Victim. As a result, Victim was ‚badly 

beaten.‛ Her face was bruised and swollen. Her nose was 

fractured. There was blood in the whites of both of her eyes. Her 

lips were torn, ‚as if the lip had been pulled away from the 

gum.‛ The bruises on her body were ‚too numerous to count‛ 

and the bruises on her neck were consistent with strangulation. 

During the course of the extended attack Victim lost 

consciousness more than once and, according to Sanchez, he 

tried to revive her by ‚breathing for her‛ and putting her head 

under running water. Although the attack began the night 

before, Victim lost consciousness for the last time when he 

strangled her around 8 or 9 o’clock in the morning. He tried a 

headlock, but in his words, that ‚wasn’t having much effect.‛ He 

then tried placing his elbow in her throat, again without success. 

Finally he used his forearm across the front of her neck and 

leaned into her. Although she ‚was just screaming,‛ this method 

finally succeeded. She blacked out and never regained 

consciousness.

¶45 Two factors distinguish this murder: the extended period 

of torture leading up to the final suffocating blow and the 

calculation with which Sanchez admits he administered that 

blow. As stated above, the jury should have heard that Sanchez 

told police that Victim hurt his feelings and enraged him when 

she would not stop saying that she was cheating on him with his 

brother. But we see no reasonable probability that, had the jury 

heard that Sanchez had told this to police, the jury would have 

found by a preponderance of the evidence that a reasonable 

person facing the same situation would have reacted similarly.
State v. Sanchez

20140749-CA 24 2016 UT App 189

¶46 We conclude that although the excluded portion of 

Sanchez’s hearsay statement should have been admitted under 

rule 106, the exclusion was harmless. We therefore affirm 

Sanchez’s conviction for murder.11

II. Obstruction of Justice

¶47 Sanchez contends that ‚the evidence was insufficient to 

support [his] conviction for obstructing justice because no 

reasonable jury could have found beyond a reasonable doubt 

that [he] concealed, removed, or destroyed evidence specifically 

intending to hinder the investigation of *Victim’s+ murder.‛

‚When a jury verdict is challenged on the ground that the 

evidence is insufficient, . . . we review the evidence and all 

inferences which may reasonably be drawn from it in the light 

most favorable to the verdict of the jury.‛ State v. Hamilton, 827 

P.2d 232, 236 (Utah 1992) (brackets, citation, and internal 

quotation marks omitted). ‚We reverse a jury conviction for 

insufficient evidence only when the evidence, so viewed, is 

sufficiently inconclusive or inherently improbable that 

 

11. The State also argues that Sanchez suffered no harm here 

because, although the trial court excluded his recorded police 

statement, he could nevertheless have testified to the facts that 

he claims sparked his extreme emotional distress. In support of 

its argument, the State cites State v. Cruz-Meza, 2003 UT 32, 

¶¶ 16–17, 76 P.3d 1165. In the related context of the oral 

completeness rule, our supreme court held that exclusion of the 

defendant’s hearsay statements did not deprive the defendant of 

his right to present special mitigation where he ‚was entirely 

free to choose‛ to testify himself. Id. ¶ 17. Sanchez responds that 

testifying would have done him no good here, because the trial 

court had already ruled that Victim’s statement that she had 

cheated on him with his brother was inadmissible double 

hearsay. Because we resolve the question of harm on other 

grounds, we need not address this issue further.
State v. Sanchez

20140749-CA 25 2016 UT App 189

reasonable minds must have entertained a reasonable doubt that 

the defendant committed the crime of which he was convicted.‛ 

Id. (citation and internal quotation marks omitted).

¶48 ‚An actor commits obstruction of justice if the actor, with 

intent to hinder, delay, or prevent the investigation, 

apprehension, prosecution, conviction, or punishment of any 

person regarding conduct that constitutes a criminal 

offense . . . alters, destroys, conceals, or removes any item or 

other thing.‛ Utah Code Ann. § 76-8-306(1)(c) (LexisNexis 2012).

¶49 Sanchez advances a subtle, time-based theory for why the 

evidence does not support his conviction for obstruction of 

justice. Sanchez argues that he ‚could be convicted of 

obstructing justice only if he concealed, removed, or destroyed 

evidence specifically intending to hinder the investigation of 

*Victim’s+ murder.‛ He acknowledges evidence of his having 

cleaned up the crime scene—for example, that he wiped the 

walls with water and chemicals and washed blood down the 

drain. But he stresses that the prosecution produced ‚no 

evidence of when‛ he did these acts—specifically, evidence that 

he did them ‚after she died.‛ And if she was still alive when he 

concealed the evidence of his criminal conduct, he reasons, he 

did not commit the crime of obstruction of justice: ‚Even if one 

could reasonably infer that [Sanchez] at some point planned to 

ultimately kill *Victim+,‛ he maintains, ‚the evidence purporting 

to show that [Sanchez] cleaned [Victim] and the apartment before

she died is insufficient to show that he concealed evidence 

specifically intending to hinder the investigation of her murder.‛ 

(Emphasis added.)

¶50 Sanchez reads the statute too narrowly. He committed the 

crime of obstruction of justice if, with intent to hinder the 

investigation of himself regarding conduct that constitutes ‚a 

criminal offense,‛ he concealed or removed anything. See Utah 

Code Ann. § 76-8-306(1)(c). The statute requires only that he 

intended to hinder investigation of a crime; nothing in the 
State v. Sanchez

20140749-CA 26 2016 UT App 189

statute requires an exact identity between the crime he sought to 

conceal and the crime for which he was eventually convicted.

¶51 We therefore conclude that there was sufficient evidence 

to convict Sanchez of obstructing justice.

CONCLUSION

¶52 For the foregoing reasons, the judgment of the trial court 

is affirmed.

BENCH, Senior Judge (concurring in part and concurring in the 

result in part):

¶53 I concur in the majority opinion except as to Part I, in 

which I concur only in the result. In my view, the trial court did 

not exceed its discretion when it excluded Sanchez’s statement. 

The main opinion acknowledges that, nationally, courts are 

equally divided on whether rule 106 operates to require the 

admission of otherwise inadmissible hearsay. See supra ¶ 24 

& note 4. I would hold that the trial court properly exercised its 

discretion in excluding Sanchez’s statement, and thus I would 

avoid a discussion of harmless error in this case.

¶54 When a party offers his own out-of-court declaration for 

its truth, that declaration must satisfy the hearsay rule. Several 

courts have held that the federal equivalent of rule 106 does not 

alter that requirement. See, e.g., United States v. Hassan, 742 F.3d 

104, 134 (4th Cir. 2014) (stating that federal rule 106 ‚does not 

render admissible . . . evidence which is otherwise inadmissible 

under the hearsay rules‛ (omission in original) (citation and 

internal quotation marks omitted)); United States v. Collicott, 92 

F.3d 973, 983 (9th Cir. 1996) (noting that federal rule 106 ‚does 

not compel admission of otherwise inadmissible hearsay 
State v. Sanchez

20140749-CA 27 2016 UT App 189

evidence‛ (citation and internal quotation marks 

omitted)). Otherwise, as these courts have explained, a criminal 

defendant would be ‚able to place his exculpatory statements

before the jury without subjecting [himself] to crossexamination, precisely what the hearsay rule forbids.‛ United 

States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000) (alteration in 

original) (citation and internal quotation marks omitted).

¶55 I would follow the lead of these courts and hold that 

before hearsay is admissible under rule 106, its proponent must 

show that it fits within an exception to the hearsay rule. Because 

Sanchez concedes that his statement was hearsay and has not 

shown that it fits within an exception, I would affirm the trial 

court’s ruling.