This opinion is subject to revision before final

publication in the Pacific Reporter

2019 UT 6

IN THE

SUPREME COURT OF THE STATE OF UTAH

SALT LAKE CITY,

Appellee,

v.

RANDALL JOSEPHSON,

Appellant.

No. 20150980

Filed January 29, 2019

On Certification from the Court of Appeals

Third District, Salt Lake

The Honorable Katie Bernards-Goodman

No. 141913058

Attorneys:

Scott A. Fisher, Paige Williamson, Hyrum J. Hemingway, 

Salt Lake City, for appellee

Dayna K. Moore, Salt Lake City, for appellant

CHIEF JUSTICE DURRANT authored the opinion of the Court, 

in which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, 

JUSTICE PEARCE, and JUSTICE PETERSEN joined.

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶1 Randall Josephson was charged in Salt Lake City Justice 

Court with one count of threat of violence, a class B misdemeanor 

under Utah Code section 76-5-107. The alleged threat occurred on 

September 7, 2014. While that case was pending, Salt Lake City 

charged Mr. Josephson in the Third District Court with one count of 

stalking, a class A misdemeanor under Utah Code section 76-5-106.5, 

and one count of threat of violence, a class B misdemeanor. The 

district court threat of violence charge was based on an alleged 
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Opinion of the Court

2

threat that occurred on September 30, 2014, and the stalking charge 

was based on alleged conduct occurring throughout September 2014. 

Mr. Josephson argues that the district court prosecution was barred 

by the earlier justice court prosecution or, alternatively, that the 

district court plainly erred in failing to merge the threat of violence 

and stalking charges. Because we find that neither issue was 

preserved nor amounts to plain error, we affirm.

Background

¶2 Randall Josephson and D.C. were neighbors in September 

2014.1 During that month, Mr. Josephson made daily threats to D.C. 

On September 7, 2014, Mr. Josephson threatened D.C. Five days 

later, Salt Lake City (the City) filed an information in justice court 

charging Mr. Josephson with threat of violence based upon the 

September 7 threat. D.C. later received a stalking injunction against 

Mr. Josephson, which was served on September 20, 2014. On 

September 22, 2014, Mr. Josephson was arraigned on the information 

in justice court. On September 30, 2014, Mr. Josephson again 

threatened D.C. The City later filed an information in district court 

charging him with stalking and threat of violence based on the 

September 30 threat. The next month, the information in justice court 

was amended to an infraction. Two months later, Mr. Josephson 

represented himself at a bench trial in justice court and was found 

guilty on the threat of violence charge stemming from the September 

7 threat. On March 13, 2015, he was sentenced to probation and a 

fine in justice court. 

¶3 On September 7, 2015, Mr. Josephson filed a motion in 

limine in district court to exclude testimony regarding the 

September 7, 2014 threat, the basis of his justice court conviction. The 

next day, the City amended the information against Mr. Josephson in 

district court to reflect that the stalking charge was based on conduct 

during the entire month of September, rather than just September 30. 

The district court heard argument on Mr. Josephson’s motion in 

limine. It denied the motion and held a jury trial. At the close of 

evidence, Mr. Josephson made a motion for a directed verdict on 

double jeopardy grounds. That motion was denied. Mr. Josephson 

was convicted on both counts. He now appeals his conviction, 

_____________________________________________________________

1 “On appeal, we review the record facts in a light most favorable 

to the jury’s verdict and recite the facts accordingly.” USA Power, 

LLC v. PacifiCorp, 2016 UT 20, ¶ 8 n.3, 372 P.3d 629 (citation omitted).
Cite as: 2019 UT 6

Opinion of the Court 

3

arguing that the district court prosecution was barred by the earlier 

justice court prosecution or, alternatively, that the district court 

plainly erred in failing to merge the convictions at sentencing.

¶4 Mr. Josephson timely appealed the district court’s decision. 

The parties briefed the matter before the court of appeals and the 

court of appeals certified the matter to this court for original 

appellate review. We have jurisdiction pursuant to Utah Code 

section 78A-3-102(3)(b).

Issues and Standard of Review

¶5 Mr. Josephson raises two issues on appeal: (1) whether the 

trial court erred in allowing the district court prosecution for stalking 

and threat of violence when Mr. Josephson had previously been 

prosecuted and convicted of another threat of violence charge in 

justice court, and (2) whether the district court plainly erred in 

failing to merge the threat of violence conviction with the stalking 

conviction. 

¶6 Mr. Josephson argues that the first issue was preserved but 

the City argues it was not. We conclude that it was not preserved, 

and we accordingly review for plain error.2 Both parties agree that 

the second issue was not preserved and must be reviewed for plain 

error.3

Analysis

¶7 Mr. Josephson challenges his conviction in the district court 

in two ways. First, he argues that the district court violated Utah 

Code section 76-1-403 (the single criminal episode statute) by 

permitting the state to prosecute the stalking and threat of violence 

charges even though he had already been prosecuted and convicted 

in justice court for conduct that allegedly formed the basis of his 

district court prosecution. Second, he argues that the district court 

erred by failing to merge his threat of violence conviction with his 

stalking conviction. Because neither of these alleged errors 

constituted plain error, we affirm Mr. Josephson’s conviction.

_____________________________________________________________

2 State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993) (“[T]o establish 

the existence of plain error and to obtain appellate relief from an 

alleged error that was not properly objected to, the appellant must 

show the following: (i) An error exists; (ii) the error should have 

been obvious to the trial court; and (iii) the error is harmful . . . .”).

3 Id.
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4

I. The District Court Did Not Plainly Err By Permitting the State to 

Prosecute the Threat of Violence and Stalking Charges 

¶8 Mr. Josephson argues that his justice court prosecution 

serves as a bar of his district court prosecution under the single 

criminal episode statute. The City disagrees. Additionally, the City 

argues that even if the district court erred by failing to apply the 

single criminal episode statute, we should nevertheless affirm the 

conviction because Mr. Josephson failed to preserve this argument 

below and the error, if any, does not constitute plain error. Because 

we find insufficient evidence in the record to satisfy the preservation 

requirement, we review Mr. Josephson’s argument under our plain 

error standard. And under this standard we affirm his conviction.

A. Mr. Josephson failed to preserve his single criminal episode argument

¶9 Mr. Josephson argues that he preserved his argument under 

the single criminal episode statute when he asserted that the district 

court prosecution was barred by the double jeopardy clauses of the 

Utah and United States Constitutions. We disagree.

¶10 The preservation doctrine serves a number of important 

policies. “One of the most important purposes of preservation is that 

it allows an issue to be fully factually, procedurally, and legally 

developed in the district court.”4 “[It] enables us to analyze both the 

application of a legal rule or principle to a concrete and 

well-developed dispute and, nearly as important, the effect of the 

district court’s ruling on the overall course of the proceedings 

below.”5 When parties fail to preserve issues, we do not receive “the 

benefit of a trial judge’s reasoning and analysis on the issue at 

hand.”6

¶11 The preservation doctrine also serves our “policy of 

fairness” because it “generally would be unfair to reverse a district 

court for a reason presented first on appeal. This is because, had the 

contention now before us been raised below, [the appellee] might 

_____________________________________________________________

4 Baumann v. Kroger Co., 2017 UT 80, ¶ 25, 416 P.3d 512.

5 Id.

6 Id.
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Opinion of the Court 

5

have countered the argument, potentially avoiding the time and 

expense of appeal.”7

¶12 “[I]n order 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.”8 “This requirement puts the trial 

judge on notice of the asserted error and allows for correction at that 

time in the course of the proceeding.”9 Three factors “help determine 

whether the trial court had such an opportunity: ‘(1) the issue must 

be raised in a timely fashion; (2) the issue must be specifically raised; 

and (3) a party must introduce supporting evidence or relevant legal 

authority.’”10 The party must put forth enough evidence that “the 

issue [is] sufficiently raised to a level of consciousness before the trial 

court.”11 Applying these factors, we hold that Mr. Josephson did not 

preserve his single criminal episode argument below.12

_____________________________________________________________

7 Federated Capital Corp. v. Deutsch, 2018 UT App 118, ¶ 19, 428 

P.3d 51 (citations omitted) (internal quotation marks omitted).

8 Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 

P.3d 968 (citation omitted). 

9 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 

(citation omitted).

10 Brookside, 2002 UT 48, ¶ 14 (citation omitted).

11 State v. Sanchez, 2018 UT 31, ¶ 30, 422 P.3d 866 (citation 

omitted) (internal quotation marks omitted).

12 We recognize that “[w]hether a party has properly preserved 

an argument . . . cannot turn on the use of magic words or phrases.”

In re Baby Girl T., 2012 UT 78, ¶ 38, 298 P.3d 1251. And “an 

overlooked or abandoned argument should not compel an erroneous 

result. We should not be forced to ignore the law just because the 

parties have not raised or pursued obvious arguments.” Kaiserman 

Assocs., Inc. v. Francis Town, 977 P.2d 462, 464 (Utah 1998). This is our 

caselaw, and we are not abandoning these standards now. 

Mr. Josephson did not need to utter the “magic words” of “single 

criminal episode statute” to properly preserve the issue. But without 

any reference to any argument besides double jeopardy, we cannot 

find that this issue was ever “sufficiently raised to a level of 

consciousness before the trial court.” Sanchez, 2018 UT 31, ¶ 30 

(citation omitted) (internal quotation marks omitted). So we hold 

that this issue is unpreserved.
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6

¶13 Although Mr. Josephson raised double jeopardy concerns on 

several occasions both pre- and posttrial,13 at no point in any of those 

arguments did he point the district court to the single criminal 

episode statute argument that he now makes. This is significant 

because the analysis for a double jeopardy challenge is distinct from 

the analysis under the single criminal episode statute.

¶14 “The double jeopardy clauses of both the Utah and federal 

constitutions limit the government’s ability to prosecute or punish 

an individual multiple times for the same conduct.”14 The single 

criminal episode statute, “takes the matter a step 

further[,] . . . barring prosecutions for different offenses committed as 

part of a single criminal episode and otherwise meeting the terms of 

the statute.”15 Because the single criminal episode statute could 

apply to bar the prosecution of offenses beyond those offenses that 

were already prosecuted, the statute expands the protections of 

double jeopardy.16 And this expanded scope of protection will often 

require courts to conduct analysis beyond what is required when 

only a double jeopardy argument is raised.

¶15 Additionally, there is an important difference between the 

operation of the protections under the single criminal episode statute 

and the double jeopardy clauses. Unlike the constitutionally based 

protection provided by the double jeopardy clauses, the protections 

under the single criminal episode statute are limited by the language 

of the statute. “The single criminal episode statute is strictly 

procedural in nature. It requires that when a defendant is brought 

before a court, all offenses arising from a single incident which are 

triable before that court be charged at the same time.”17 To the extent 

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13 Mr. Josephson raised the double jeopardy issue during oral 

argument on his motion in limine on September 9, 2015. He again

argued this issue while objecting to a jury instruction. Finally, he

argued this issue on a motion for directed verdict and the ensuing 

discussion with the trial court indicated that the court recognized the 

issue, though it denied the motion.

14 State v. Robertson, 2017 UT 27, ¶ 15, --- P.3d --- (citing U.S.

CONST. amend. V; UTAH CONST. art. 1, § 12).

15 State v. Ririe, 2015 UT 37, ¶ 6, 345 P.3d 1261.

16 Id.

17 State v. Sosa, 598 P.2d 342, 345 (Utah 1979).
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Opinion of the Court 

7

that is not possible, “the state is not required to choose to prosecute 

only some of the offenses committed by a defendant.”18

¶16 So the single criminal episode “provisions are implicated 

not for all former prosecutions arising out of a single criminal episode, 

but only as to former prosecutions in which the offenses in question 

were ‘known to the prosecuting attorney at the time the defendant is 

arraigned on the first information or indictment.’”19 For this reason, the 

single criminal episode statute does not apply to any prosecutions 

stemming from conduct arising after the date of the first 

arraignment. This feature of the statute is significant in this case and 

ultimately defeats Mr. Josephson’s preservation argument.

¶17 Because the single criminal episode statute does not apply to 

any prosecutions stemming from conduct arising after the date of the 

first arraignment, the determination of whether or not the statute 

applies may often depend on the district court’s factual findings 

regarding the timing of events—factual findings that might not be 

relevant to the more limited focus of a double jeopardy 

determination. This case illustrates the significance of this aspect of 

the single criminal episode statute.

¶18 Here, Mr. Josephson was charged in justice court on 

September 22, 2014 (first arraignment) with one count of making a 

threat of violence. This charge was based solely on a threat 

Mr. Josephson made on September 7. Later, the City brought charges 

against Mr. Josephson in district court for conduct that occurred 

throughout the month of September, including a threat made on 

September 30, 2014. 

¶19 Before the district court, Mr. Josephson argued that the 

district court prosecution violated double jeopardy because he had 

already been convicted in the justice court. But he did not make an 

argument under the single criminal episode statute. His failure to 

raise his single criminal episode arguments before the district court 

deprived the court of an opportunity to conduct the necessary 

analysis. Although the district court found that Mr. Josephson’s 

prosecution did not implicate double jeopardy, the court never had 

the opportunity to conduct the analysis on the single criminal 

_____________________________________________________________

18 Id. (“To hold otherwise would frustrate sound public policy 

and circumvent the demands of justice.”).

19 Ririe, 2015 UT 37, ¶ 10 (citing UTAH CODE § 76–1–402(2)).
SALT LAKE CITY v. JOSEPHSON

Opinion of the Court

8

episode requirements. Because of this, there is no evidence in the 

record as to what the prosecuting attorney knew at the time of the 

first arraignment in justice court.

¶20 This factual deficiency hinders our appellate review and 

illustrates the importance of our preservation requirements.20

Accordingly, we hold that Mr. Josephson’s single criminal episode 

argument was not preserved and must be reviewed under our plain 

error standard.

B. The district court did not plainly err when it failed to apply the single 

criminal episode statute

¶21 Mr. Josephson argues that the district court plainly erred 

when it failed to apply the single criminal episode statute to bar the 

City’s prosecution in the district court. “[T]o establish the existence 

of plain error and to obtain appellate relief from an alleged error that 

was not properly objected to, [Mr. Josephson] must show the 

following: (i) An error exists; (ii) the error should have been obvious 

to the trial court; and (iii) the error is harmful . . . .”21 Because the 

error, if any, would not have been obvious to the district court, we 

conclude that the court did not plainly err when it permitted 

Mr. Josephson’s prosecution.22

_____________________________________________________________

20 “The policy of judicial economy is most directly frustrated 

when an appellant asserts unpreserved claims that require factual 

predicates.” Patterson v. Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828.

21 Dunn, 850 P.2d at 1208. Mr. Josephson also argues that this 

issue is not susceptible to a harmless error analysis, because the 

United States Supreme Court has held that double jeopardy 

violations are not subject to harmless error analysis. See, e.g., Morris 

v. Mathews, 475 U.S. 237, 244–45 (1986); Price v. Georgia, 398 U.S. 323, 

331 (1970). Because the single criminal episode statute expands on 

double jeopardy protections, it is unclear whether or how we would 

conduct a harmless error analysis. But because we find any potential 

error would not have been obvious, we reserve this question for 

another time. 

22 We have “recognized three distinct exceptions to preservation: 

plain error, ineffective assistance of counsel, and exceptional 

circumstances.” State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d 443. But 

because the parties have only argued for plain error review, we 

decline to review the question under the other exceptions.
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Opinion of the Court 

9

¶22 Whether the single criminal episode statute applies depends 

on whether the first prosecuting attorney knew, at the time of the 

first arraignment, about the conduct underlying the charges that 

were later brought in the second prosecution. As discussed supra, 

because Mr. Josephson never argued that the single criminal episode 

statute applied to his case, neither party introduced evidence 

regarding whether the first prosecutor knew about the conduct 

underlying the second prosecution at the time of the first 

arraignment. As a result, there was no indication on the record that 

the first prosecutor knew about all the conduct underlying the 

charges in the second prosecution, and it could not have been 

obvious to the district court that the single criminal episode statute 

applied to Mr. Josephson’s case. Accordingly, Mr. Josephson’s claim 

that the district court erred in allowing the prosecution fails.

II. The District Court Did Not Plainly Err By Failing to Merge 

Mr. Josephson’s Threat of Violence Conviction With His Stalking 

Conviction 

¶23 Mr. Josephson also argues that the district court plainly 

erred in failing to merge his convictions for stalking and threat of 

violence at sentencing. Both parties agree that this issue was not 

preserved and must be reviewed for plain error. As we noted above, 

one requirement of the plain error standard is that the error 

complained of should have been obvious to the district court. To 

establish this, Mr. Josephson “must show that the law governing the 

error was clear at the time the alleged error was made.”23 Because 

our law is unclear regarding whether the stalking and threat of 

violence convictions should have been merged, we find that the 

alleged error would not have been obvious to the district court and 

Mr. Josephson’s claim fails.

¶24 We begin our analysis by noting that the court of appeals’ 

chief concern in certifying this case to us was to allow us to 

determine “whether [under the lesser included offense provision] a 

defendant may be convicted separately of stalking and also the 

predicate crimes that constitute the course of conduct on which the 

stalking charge was (in part) based.” Importantly, the court of 

appeals noted that this “question of law has not been . . . settled by” 

this court. After considering the merger doctrine, the requirements 

_____________________________________________________________

23 State v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276 (citing State v. 

Eldredge, 773 P.2d 29, 35–36 (Utah 1989)).
SALT LAKE CITY v. JOSEPHSON

Opinion of the Court

10

of the stalking and threat of violence statutes, and relevant caselaw, 

we agree with the court of appeals that the law on this point is 

unclear.

¶25 Merger “is a judicially-crafted doctrine available to protect 

criminal defendants from being twice punished for committing a 

single act that may violate more than one criminal statute.”24 In

Utah, the legislature “codified the merger doctrine in statute, 

providing that ‘[a] defendant may be convicted of an offense 

included in the offense charged but may not be convicted of both the 

offense charged and the included offense.’”25 This is true unless the 

legislature includes an anti-merger provision, specifically indicating 

its intent that the offenses not merge.26

¶26 In resolving merger questions, “the determination to be 

made is whether the legislature intended an offense to be a lesser 

included offense of another.”27 Lesser included offenses are 

“established by proof of the same or less than all the facts required to 

establish the commission of [another] offense.”28 In other words, 

“where the same act or transaction constitutes a violation of two 

distinct statutory provisions, the test to be applied to determine 

whether there are two offenses or only one, is whether each 

provision requires proof of a fact which the other does not.”29

_____________________________________________________________

24 State v. Smith, 2005 UT 57, ¶ 7, 122 P.3d 615 (citation omitted) 

(internal quotation marks omitted); see also State v. Williams, 2007 UT 

98, ¶ 13, 175 P.3d 1029 (“The merger doctrine derives from the 

constitutional guarantee that a person may not be held accountable 

twice for the same criminal conduct.” (citations omitted)). 

25 Williams, 2007 UT 98, ¶ 13 (alteration in original) (quoting

UTAH CODE § 76-1-402(3)). 

26 Smith, 2005 UT 57, ¶ 11.

27 State v. Bond, 2015 UT 88, ¶ 69, 361 P.3d 104 (citation omitted) 

(internal quotation marks omitted); see also Albernaz v. United States, 

450 U.S. 333, 344 (1981) (“Thus, the question of what punishments 

are constitutionally permissible is not different from the question of 

what punishments the [legislature] intended to be imposed.”).

28 UTAH CODE § 76-1-402(3)(a).

29 Blockburger v. United States, 284 U.S. 299, 304 (1932).
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Opinion of the Court 

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¶27 “Utah courts apply a two-tiered analysis to identify lesserincluded offenses.”30 Under the first tier, if the “two crimes are such 

that the greater cannot be committed without necessarily having 

committed the lesser, then . . . they stand in the relationship of 

greater and lesser offenses, and the defendant cannot be convicted or 

punished for both.”31 That analysis is not sufficient here, because 

both the stalking and threat of violence statutes have multiple 

variations. Where, as here, the two crimes charged have multiple 

variations, it is possible that under one variation, an offense would 

be a lesser-included offense, but under another variation it would 

not be. So we proceed to the second tier of the analysis and “consider

the evidence [used at trial] to determine whether the greater-lesser 

relationship exists between the specific variations of the crimes 

actually proved at trial.”32 So we turn to an examination of the 

stalking and threat of violence statutes and their variations.

¶28 The stalking statute requires proof that a person 

“intentionally or knowingly engages in a course of conduct directed 

at a specific person and knows or should know that the course of 

conduct would cause a reasonable person: (a) to fear for the person’s 

own safety or the safety of a third person; or (b) to suffer other 

emotional distress.”33 “Course of conduct” is defined as “two or 

more acts directed at or toward a specific person, including: (i) acts 

in which the actor follows, monitors, observes, photographs, 

surveils, threatens, or communicates to or about a person.”34

Additionally, a “person is guilty of stalking who intentionally or 

knowingly violates: (a) a stalking injunction issued pursuant to Title 

77, Chapter 3a, Stalking Injunctions.”35

¶29 The stalking statute provides that this “section does not 

preclude the filing of a criminal information for stalking based on the 

same act which is the basis for the violation of the stalking injunction 

_____________________________________________________________

30 State v. Ross, 951 P.2d 236, 241 (Utah Ct. App. 1997).

31 State v. Hill, 674 P.2d 96, 97 (Utah 1983) (citation omitted) 

(internal quotation marks omitted). 

32 State v. Chukes, 2003 UT App 155, ¶ 10, 71 P.3d 624 (citation 

omitted). 

33 UTAH CODE § 76-5-106.5(2).

34 Id. § 76-5-106.5(1)(b).

35 Id. § 76-5-106.5(3).
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Opinion of the Court

12

issued pursuant to [the stalking statute], or a permanent criminal 

stalking injunction.”36 Here, that would mean that the September 30 

violation of the stalking injunction could be prosecuted in addition 

to the stalking charge itself. Although the City largely presented the 

issue to the jury under the course of conduct theory, this violation of 

the stalking injunction would also satisfy the elements of stalking. 

¶30 In contrast, the threat of violence statute requires proof that 

either “the person threatens to commit any offense involving bodily 

injury, death, or substantial property damage, and acts with intent to 

place a person in fear of imminent serious bodily injury, substantial 

bodily injury, or death”37 or “the person makes a threat, 

accompanied by a show of immediate force or violence, to do bodily 

injury to another.”38

¶31 But even if offenses would otherwise be considered lesser 

included offenses, the legislature may still, by statute, prohibit those 

offenses from merging. We have held that “if the legislature intends 

to preclude [the lesser included offense provision] from requiring 

merger in a specific instance, it must clearly indicate that” intent.

39

“Only when such an explicit indication of legislative intent is present 

in the specific offense statute will we consider it appropriate to 

exempt that statute from operation of the general merger 

requirements in [the lesser included offense provision].”40

¶32 The City argues that subsection (5) of the threat of violence 

statute operates as an anti-merger provision, or an “explicit 

indication of legislative intent” against merger. This section states 

that a “person who commits an offense under this section is subject 

to punishment for that offense, in addition to any other offense 

committed, including the carrying out of the threatened act.”41

¶33 Mr. Josephson argues that the language of this provision is 

not explicit enough to be construed as an anti-merger provision. He 

asserts that the legislature makes it clear when a statute is exempted 

_____________________________________________________________

36 Id. § 76-5-106.5(16). 

37 Id. § 76-5-107(1)(a).

38 Id. § 76-5-107(1)(b). 

39 Smith, 2005 UT 57, ¶ 11. 

40 Id.

41 UTAH CODE § 76-5-107(5).
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Opinion of the Court 

13

from this doctrine.42 He points to several statutes that provide 

exemptions to the merger provision, all of which use the word 

“merge” explicitly.43 In response the City points to two additional 

statutes that contain similar provisions but do not actually include 

the word “merge.”44

¶34 As the debate between the parties in this case demonstrates, 

there is no clearly established law resolving this issue. Indeed, this is 

a complicated issue with many moving parts. But we need not 

resolve this issue as part of our plain error review. Because of the 

admittedly unsettled nature of this area of law, we cannot say that 

the error should have been obvious to the trial court. So the error, if

any, was not plain error, and Mr. Josephson’s claim must fail.45

Conclusion

¶35 Neither of Mr. Josephson’s arguments was adequately 

preserved below. Given the complexity of both issues that are before 

_____________________________________________________________

42 See, e.g., id. § 76-1-405 (explicitly defining instances when a 

subsequent prosecution is not barred by a former prosecution). 

43 See, e.g., id. § 76-5-202(5)(a) (“Any aggravating 

circumstance . . . that constitutes a separate offense does not merge 

with the crime of aggravated murder.”); id. § 76-5-203(5) (“Any 

predicate offense . . . that constitutes a separate offense does not 

merge with the crime of murder.”); id. § 76-8-508(3) (“The offense of 

tampering with a witness or soliciting or receiving a bribe under this 

section does not merge with any other substantive offense 

committed in the course of committing any offense under this 

section.”); id. § 76-8-508.3(4) (“The offense of retaliation against a 

witness, victim, or informant under this section does not merge with 

any other substantive offense committed in the course of committing 

any offense under this section.”). 

44 See id. § 58-37-8(7) (“A person may be charged and sentenced 

for a violation of this section, notwithstanding a charge and sentence 

for a violation of any other section of this chapter.”); id. § 76-6-202(3) 

(“A violation of this section is a separate offense from any of the 

offenses listed in Subsections (1)(a) through (g), and which may be 

committed by the actor while in the building.”). 

45 This leaves an important question unanswered. But it would be 

inappropriate to reach this question given that the court did not 

plainly err.
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Opinion of the Court

14

us and the fact that the law was unsettled, we cannot charge the trial 

court with plain error. Accordingly, we affirm.