2017 UT App 158

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

OSTON SHILOH FAIRBOURN,

Appellant.

Opinion

No. 20141149-CA

Filed August 24, 2017

Third District Court, Salt Lake Department

The Honorable Vernice S. Trease

No. 141900233

Craig L. Pankratz and David M. Corbett, Attorneys

for Appellant

Sean D. Reyes and William M. Hains, Attorneys

for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES GREGORY K. ORME and STEPHEN L. ROTH concurred.

1

MORTENSEN, Judge:

¶1 Defendant Oston Shiloh Fairbourn was shot three times 

after lunging at Officer with a seven-inch blade. A jury found 

Defendant guilty of attempted aggravated murder. We now 

consider whether Defendant’s claims of prosecutorial 

misconduct and evidentiary error warrant reversal of his 

conviction. We conclude they do not and affirm.

 

1. Judge Stephen L. Roth participated in this case as a member of 

the Utah Court of Appeals. He retired from the court before this 

decision issued.
State v. Fairbourn

20141149-CA 2 2017 UT App 158

BACKGROUND

¶2 Because Defendant appeals from a jury verdict, “we recite 

the facts from the record in the light most favorable to the jury’s 

verdict and present conflicting evidence only as necessary to 

understand issues raised on appeal.” State v. Daniels, 2002 UT 2, 

¶ 2, 40 P.3d 611.

¶3 One winter evening, Defendant started walking across a 

busy street without first looking either direction. His apparent

disregard for his own safety caught the attention of Officer, who 

was on patrol in the area. Officer pulled into a nearby parking 

lot to further observe Defendant’s behavior. Defendant 

eventually noticed Officer and came into the lot where the patrol 

car was parked. He stood at the end of the lot opposite of the car, 

looking at Officer for about thirty seconds. Defendant then 

walked away, into the middle of the street, before turning back 

to Officer. Believing that Defendant was trying to provoke him, 

Officer called for a single-officer backup, pulled his patrol car 

into the street to block traffic, and turned on the car’s overhead 

lights.

¶4 Officer had stopped about twenty feet away from 

Defendant when he exited his patrol car. Upon Officer’s exit, 

Defendant pulled out “a big knife” (with a seven-inch blade),

which he held at his waist “with his elbow bent as if he were 

ready to use it.” The production of the knife was accompanied 

by Defendant announcing that Officer was “about to fucking 

die.” In response, Officer called for more backup, drew his 

firearm, pointed it at Defendant, and repeatedly ordered 

Defendant to drop the knife. Rather than complying with 

Officer’s orders, Defendant began to move sideways. Officer 

moved parallel to him, making sure Defendant “could not attack 

from the side.” A bystander observed that Defendant was 

shifting his weight from one foot to the other, “kind of dancing 

around.”

¶5 Defendant turned and started moving quickly away from 

Officer, and Officer followed. Defendant abruptly stopped and 
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20141149-CA 3 2017 UT App 158

turned to face Officer again, leaving somewhere from five to 

twenty feet between them. He took a step toward Officer, who 

told him to stop. Instead, Defendant switched his grip on the 

knife, raised his arm so the hand holding the knife was near his 

head, and took another step. Officer again ordered Defendant to 

stop. Defendant ignored the order, lunging at Officer, and 

Officer responded by shooting him three times.

¶6 Defendant was charged with attempted aggravated 

murder, and the case went to a jury trial. Several pieces of 

evidence presented are relevant to this appeal. First, Defendant 

testified, explaining that on the night of his encounter with 

Officer, he was heading to a friend’s house to retrieve his phone. 

He had been to the house only twice before and got turned 

around on his way. He stopped in a parking lot—the lot where 

Officer was parked—as he deliberated whether to continue 

trying to find his friend’s house or instead make his way to his 

grandmother’s house nearby. Defendant had started into the 

street when Officer pulled up in his patrol car. He thought about 

running away, uneasy because he had a knife on him that would 

be difficult to explain. He also considered discarding the knife

but decided against it. Instead, Defendant decided to continue 

on toward his friend’s house. He gave up on that plan when he 

realized he was still disoriented and turned around to face 

Officer. Officer ordered Defendant to show him his hands, and 

Defendant complied, showing Officer that he had the knife. 

Again being told to show his hands, Defendant raised the knife 

to his shoulder. According to Defendant, his actions were meant 

as a show of surrender; he “had no intention of harming anyone 

that night.” The next thing Defendant remembers is waking up

in a hospital.

¶7 In its brief, the State contends that while Defendant was 

in the hospital, Detective gave Defendant Miranda warnings and 

Defendant invoked his right to silence. But he then “continued to 

talk” while Detective “simply listened—for about seven 

minutes.” The topic of Defendant’s monologue was his belief 

when first arriving at the hospital that “he was dead” and his 
State v. Fairbourn

20141149-CA 4 2017 UT App 158

feeling “that he was in hell.” However, after a thorough review 

of the trial testimony, we found no reference to Detective giving 

Defendant Miranda warnings or of Defendant invoking his 

associated rights.

¶8 While cross-examining Defendant, the prosecutor asked 

about this conversation with Detective. He asked, “You didn’t 

say anything to [Detective] about this misunderstanding of you 

trying to surrender to [Officer] when [Detective] talked to you at 

the hospital, did you?” Defendant answered that he had not. The 

prosecutor followed up with, “So today in court talking to this 

jury here, nine months after this happened is the first time that 

we’re hearing that you were trying to surrender to [Officer], 

right?” Defendant answered, “Yes. I didn’t say anything to 

[Detective].” The prosecutor then highlighted this exchange 

during his closing argument:

I want to bring up three important things about the 

defendant’s testimony that I’d like you to consider 

in light of these elements that you’ve read about in 

these instructions. First of all, everything that the 

defendant told you today, he had the chance to say 

before. When he was talking to [an officer] at the 

scene, he had an interview with [Detective] after—

The prosecutor was interrupted by Defendant’s trial attorney 

objecting that the prosecutor was “shifting the burden of proof.” 

The trial court stated, “I don’t think it’s burden shifting,” and 

allowed the closing argument to proceed.

¶9 During the cross-examination, the prosecutor further 

pressed Defendant on his version of events when he asked 

Defendant to explain the discrepancies between his testimony 

and the testimony of eyewitnesses:

[Prosecutor]: And you heard these witnesses when 

they told the jury that they saw you holding 

something, some of them said a knife but some 
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20141149-CA 5 2017 UT App 158

said holding [your] hand out in front of you as you 

are facing the officer, right?

[Defendant]: Yes, I heard that.

[Prosecutor]: And did you hear [another 

eyewitness] when he told the jury that you were 

holding the knife over your head, lunging and 

making a motion like that towards the officer?

[Defendant]: Yes, I heard him.

[Prosecutor]: So if you were trying to submit or 

surrender to the officer and these witnesses are 

perceiving something else, is it your testimony 

today that this is just a misunderstanding on their 

part?

Defendant explained that “everyone has different perspectives 

or [vantage] points.”

¶10 Another pertinent exchange took place at trial when the 

prosecutor elicited testimony concerning Officer’s thoughts and 

emotions during his interaction with Defendant. He asked what 

was “personally going through [Officer’s] mind,” and Officer 

explained,

Um, lots of things. . . . I think people get into law 

enforcement for various reasons. For me it would 

be difficult to hold a desk job because I have a 

short attention span. And I enjoy serving people.

My thoughts immediately shift towards my family. 

I’ve got people that depend on me. You know, you 

kind of go into a—into a—I don’t know, for lack of 

a better term, a cop mode to where you’re 

professional and you try and be courteous. And all 

that went out the window. Like it’s just pure 

survival at that point.
State v. Fairbourn

20141149-CA 6 2017 UT App 158

I don’t think I gave another radio transmission out 

until the aftermath of what had occurred, but yeah, 

for me, it’s just a matter of making it home at the 

end of the night at that point.[2]

¶11 Finally, Officer presented what Defendant refers to as 

“expert testimony regarding the Twenty-one Foot Rule—a rule 

of thumb for officers to use when determining when they are 

most susceptible to a personal attack.” Defendant’s trial attorney 

had objected to this testimony, arguing that Officer’s “state of 

 

2. Defendant claims that the prosecutor then showcased this 

testimony in closing argument, but the portion of the transcript 

cited deals more with Officer’s ability to stay calm than his 

thoughts about his family and staying safe. The prosecutor 

reminded the jury,

I think you can see on the stand, [he] was 

emotional about this situation. This is something 

that upset him. This is something that, um, I’m 

even prepared to say this caused him pause and 

caused him significant amount of concerns. If you 

remember from [the other officer] as well, when he 

heard [Officer] call out on the radio, testified . . . 

[he] could hear the stress in [Officer’s] voice.

[Officer] is somebody who [the other officer] 

testified he knows he’s a pretty calm, collected guy 

and an experienced police officer. And I think you 

could see this from [Officer’s] testimony. I mean 

[Officer] didn’t present himself to you as someone 

who is high-strung. He didn’t present himself to 

you as somebody who would get worked up about 

a situation that was really nothing without any sort 

of pause or concern. I think [Officer] presented 

himself to you as a pretty cool cucumber, for lack 

of a better word.
State v. Fairbourn

20141149-CA 7 2017 UT App 158

mind is not relevant” and that “the defendant’s state of mind is 

what’s relevant.” The trial court clarified, “So I just want to make 

clear, your objection is relevance?” When Defendant’s trial 

counsel answered in the affirmative, the trial court replied, 

“Okay. For now I’m going to sustain the objection regarding any 

training that he had. But if the door is opened on cross, you cross 

on the officer’s reaction, then the door is opened.” But later, 

outside the presence of the jury, the trial court explained, “The 

more I think about it, the more I think I may be in error.” After 

receiving a proffer from Officer as to what he would say about 

the twenty-one-foot rule, the trial court changed its ruling: “I’m 

going to allow the testimony as has been articulated.”

¶12 The jury deliberated for more than nine hours before 

returning a guilty verdict. Defendant appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Defendant raises two overarching issues for our review. 

First, he asks us to consider whether the State engaged in 

prosecutorial misconduct (1) by asking Defendant about his 

interview with Detective, after Defendant had invoked his right 

to silence; (2) by asking Defendant to provide an explanation for 

the discrepancies between his testimony and the testimony of 

eyewitnesses; or (3) by asking Officer what was going through 

his mind when he encountered Defendant. Insofar as this issue 

was preserved, we will review “the trial court’s rulings on 

prosecutorial misconduct claims for an abuse of discretion.” 

State v. Davis, 2013 UT App 228, ¶ 9, 311 P.3d 538 (citation and 

internal quotation marks omitted). To the extent this issue was 

not preserved, Defendant requests that we review it for plain 

error. “For plain error, [Defendant] must demonstrate (i) [a]n 

error exists; (ii) the error should have been obvious to the trial 

court; and (iii) the error is harmful, i.e., absent the error, there is 

a reasonable likelihood of a more favorable outcome for the 

appellant.” State v. Bond, 2015 UT 88, ¶ 15, 361 P.3d 104 (second 

alteration in original) (citation and internal quotation marks 

omitted).
State v. Fairbourn

20141149-CA 8 2017 UT App 158

¶14 Second, Defendant asks us to consider whether the trial 

court improperly admitted evidence of the twenty-one-foot rule. 

At trial, Defendant’s counsel objected that the evidence was 

irrelevant.3 “A trial court has broad discretion in deciding 

whether evidence is relevant, and we review a trial court’s 

relevance determination for abuse of discretion.” State v. 

Fedorowicz, 2002 UT 67, ¶ 32, 52 P.3d 1194.

ANALYSIS

¶15 Defendant’s challenges on appeal involve three sources of 

alleged prosecutorial misconduct—comments on Defendant’s 

silence, questions about discrepancies between Defendant’s and 

other witnesses’ testimonies, and questions about Officer’s 

mindset—and the admission of what Defendant argues was 

irrelevant testimony regarding the twenty-one-foot rule. We 

consider these four issues in turn.

 

3. On appeal, Defendant also argues that the testimony was 

improper expert testimony. But at trial, any objection to the 

expert nature of the testimony was phrased as opposition to 

Officer testifying to “what studies have shown or what any other 

officer or other officers have been instructed or anyone in the 

state of Utah would have been instructed if they were a peace 

officer.” The State countered, “We don’t need to talk about 

studies. . . . [H]e’s not testifying he’s an expert. He’s not saying 

he’s part of the studies or that he conducted the studies.” To this, 

Defendant’s trial counsel responded, “That would take care of 

my other objections[.]” Thus, Defendant represented to the trial 

court that any concern about improper expert evidence had been 

resolved. Any error in admitting what Defendant characterizes 

as expert evidence was invited. Because invited error precludes 

appellate review of an issue, see State v. Maese, 2010 UT App 106, 

¶ 12, 236 P.3d 155, we do not review this issue. See infra ¶¶ 39-42.
State v. Fairbourn

20141149-CA 9 2017 UT App 158

I. Prosecutorial Misconduct

¶16 Defendant acknowledges that his prosecutorialmisconduct claim “was only partially preserved.” The discrete 

issue preserved arose during the State’s closing argument, when 

the prosecutor brought up Defendant’s failure to previously 

explain portions of the story that he provided while testifying at 

trial.4 But the objection made on this point was that the State’s 

closing argument “shifts the burden of proof” by suggesting that 

Defendant had an “obligation to come forward with evidence.” 

The trial court questioned whether this was actually an issue of 

Defendant’s “Fifth Amendment right to remain silent,” but 

because defense counsel repeatedly argued that the problem was 

improper burden shifting, the trial court ultimately concluded, “I 

don’t think it’s burden shifting,” and allowed the State to 

continue. Because Defendant’s argument on appeal is not that 

the State improperly shifted the burden of proof but instead that 

it improperly commented on his silence, this issue was not 

preserved.

¶17 We are therefore left to consider Defendant’s 

prosecutorial-misconduct claim for plain error. Our supreme 

court recently clarified the proper framework for appellate 

review of unpreserved prosecutorial-misconduct claims:

[P]lain error review considers the plainness or 

obviousness of the district court’s error (not the 

prosecutor’s). That follows from the nature of our 

appellate jurisdiction: Appellate courts review the 

decisions of lower courts. We do not review the 

actions of counsel—at least not directly.

That is not to say that the extent of a prosecutor’s 

“misconduct” is irrelevant to our analysis. The

 

4. Defendant has labeled this instance of misconduct as the 

prosecutor improperly commenting on his silence—the issue we 

address in section I.A. below.
State v. Fairbourn

20141149-CA 10 2017 UT App 158

propriety of a lower court decision may turn, in 

part, on the egregiousness of an attorney’s misstep. 

If a prosecutor asks a question aimed at eliciting 

material that is both highly prejudicial and clearly 

inadmissible, that may suggest that the trial judge 

was plainly wrong in not intervening to block its 

admission sua sponte. The more plain or obvious 

the prosecutor’s misstep, the greater the likelihood 

(other things being equal) that an appellate court 

would find plain error in a judge’s failure to step in 

to stop it. That kind of thinking may be behind our 

assertion that “prosecutorial misconduct” can 

constitute plain error.

State v. Hummel, 2017 UT 19, ¶¶ 107–08, 393 P.3d 314. With this 

in mind, we now consider Defendant’s claims of prosecutorial 

misconduct by “review[ing] the district court’s actions under 

established exceptions to the law of preservation (here, plain 

error).” Id. ¶ 111. As explained above, this requires looking at

whether “(i) an error exists; (ii) the error should have been 

obvious to the trial court; and (iii) the error is harmful, i.e., 

absent the error, there is a reasonable likelihood of a more 

favorable outcome for the appellant.” State v. Bond, 2015 UT 88, 

¶ 15, 361 P.3d 104 (brackets, citation, and internal quotation 

marks omitted).

A. Comments on Defendant’s Silence

¶18 Part of the prosecutor’s cross-examination of Defendant 

included questions about the conversation that took place with 

Detective at the hospital. The prosecutor clarified that Defendant

never gave Detective his explanation of events, ultimately 

asking, “Why didn’t you tell this story to anybody when you got 

arrested?” Then, during closing argument, the prosecutor 

explained to the jury that “everything that the defendant told 

you today, he had the chance to say before.”

¶19 The United States Supreme Court has held “that the use 

for impeachment purposes of [a defendant’s] silence, at the time 
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20141149-CA 11 2017 UT App 158

of arrest and after receiving Miranda warnings, violate[s] the 

Due Process Clause of the Fourteenth Amendment.” Doyle v. 

Ohio, 426 U.S. 610, 619 (1976). The State contends that Doyle is 

inapplicable because Defendant chose to talk after initially 

indicating a desire to exercise his right to remain silent. For 

purposes of our analysis, we need not decide whether Defendant 

exercised his right to remain silent. Even if we assume 

Defendant invoked his right to remain silent and that the 

prosecutor’s question was out of bounds, Defendant has not 

demonstrated that the presumed error should have been obvious 

to the trial court or that the presumed error was harmful. See 

Bond, 2015 UT 88, ¶ 15.

¶20 As an initial matter, we note that any error related to the 

prosecutor’s comment on Defendant’s silence during closing 

argument was invited, and invited error precludes appellate 

review of an issue. Where trial counsel affirmatively waives an 

objection, we will not conduct a plain-error review of the 

underlying issue. See State v. Maese, 2010 UT App 106, ¶ 12, 236 

P.3d 155. When defense counsel objected during closing 

argument, he did so on the basis of improper burden shifting. 

And when the trial court explicitly asked whether the issue was 

actually one related to Defendant’s right to remain silent, 

defense counsel reiterated that his objection was to burden 

shifting. Under these circumstances, any error was invited and 

we will not consider this issue further.

¶21 We therefore focus our review on the prosecutor’s 

questions during cross-examination of Defendant, and 

Defendant has not persuaded us that plain error requires 

reversal on this point.

¶22 To begin, any error would not have been obvious to the 

trial court. The prosecutor began the relevant line of questioning 

by asking Defendant whether he was aware that Detective had 

visited him in the hospital. Defendant answered, “Yes.” The 

prosecutor then asked, “And you talked to him at the hospital, 

right?” Defendant again answered, “Yes.” The prosecutor 

followed up by asking, “You didn’t say anything to him about 
State v. Fairbourn

20141149-CA 12 2017 UT App 158

this misunderstanding of you trying to surrender to [Officer] 

when [Detective] talked to you at the hospital, did you?” To this, 

Defendant responded, “No.” The challenged question—whether 

Defendant shared his version of events with Detective—came 

immediately after Defendant said that he “talked to” Detective. 

In context, it would not have been clear to the trial court that the 

question related to Defendant’s silence. Instead, the prosecutor’s 

questions appeared to be an attempt to impeach Defendant’s 

credibility.

¶23 “If a defendant takes the stand and testifies in his own 

defense, his credibility may be impeached and his testimony 

assailed like that of any other witness, and the breadth of his 

waiver is determined by the scope of relevant crossexamination.” State v. Winward, 941 P.2d 627, 634 (Utah Ct. App. 

1997) (brackets, citation, and internal quotation marks omitted).

In the instant case, appellant had no right to set 

forth to the jury all the facts which tend in his favor 

without laying himself open to a cross-examination 

upon those facts. During the challenged crossexamination, the prosecutor did not mention 

appellant’s exercise of his right to silence . . . . The 

prosecutor never stated or implied that appellant’s 

exercise of his right . . . was suggestive of guilt.

See id. (citations and internal quotation marks omitted).5 Because 

it likely appeared to the trial court as if the prosecutor was 

 

5. The similar situation presented in Winward led this court to 

conclude that the challenged questioning “was simply not error, 

and the first requirement of the plain error doctrine was not 

satisfied.” State v. Winward, 941 P.2d 627, 634 (Utah Ct. App. 

1997). The facts of the present case do not lend themselves to 

such a determination, as the record is less clear about if, when, or 

how long Defendant chose to exercise his right to remain silent. 

But Winward is nevertheless helpful to our analysis regarding the 

(continued...)
State v. Fairbourn

20141149-CA 13 2017 UT App 158

properly using cross-examination to challenge the facts 

Defendant presented, we cannot conclude that any error in that 

questioning would have been obvious.

¶24 Furthermore, even if the trial court should have 

intervened in the cross-examination, its failure to do so did not 

harm Defendant. In deciding whether a prosecutor’s comments 

on a defendant’s silence were harmful, we typically consider

(1) whether the jury would “naturally and 

necessarily construe” the comment as referring to 

defendant’s silence; (2) whether there was 

overwhelming evidence of defendant’s guilt; 

(3) whether the reference was isolated; and 

(4) whether the trial court instructed the jury not to 

draw any adverse presumption from defendant’s 

decision not to testify.

State v. Reyes, 861 P.2d 1055, 1057 (Utah Ct. App. 1993) (quoting 

State v. Tillman, 750 P.2d 546, 554 (Utah 1987) (plurality 

opinion)).

6

 

(...continued)

obviousness of any presumed error. Specifically, because it is 

unclear whether Defendant invoked his right to remain silent, to 

the trial court in the present case the situation would have 

appeared as it did in Winward; it would seem as if a prosecutor 

were rightfully challenging a testifying defendant regarding his 

version of events.

6. Again, because this claim is unpreserved, it does not fit within 

a standard prosecutorial-misconduct analysis and we instead 

use the framework applicable to a plain-error analysis. But as 

our supreme court clarified in State v. Hummel, 2017 UT 19, 393 

P.3d 314, that does not render the prosecutor’s conduct 

irrelevant. Id. ¶ 108. We consider the conduct of the prosecutor 

(continued...)
State v. Fairbourn

20141149-CA 14 2017 UT App 158

¶25 We are confident that the jury would not necessarily 

construe the prosecutor’s questions as referring to Defendant’s 

silence, and there was strong evidence of Defendant’s guilt. See 

id. at 1057. We acknowledge that the challenged comments 

appeared both during cross-examination and during closing 

argument; therefore, we cannot say that the comments were 

isolated. See id. No curative instruction was requested or given in 

the present case, see id., but the lack of a curative instruction is 

unsurprising because Defendant testified. And even if a curative 

instruction were appropriate, we have already determined this 

issue was not preserved. Furthermore, any presumed error in 

the prosecutor’s questions would not have been obvious to the 

trial court, thus, the trial court would not have sua sponte given 

such an instruction.

¶26 Whether a prosecutor’s comment was likely construed as 

referring to silence is frequently considered in the context of a 

defendant’s decision not to testify at trial. See Tillman, 750 P.2d at

554 (plurality opinion) (“Indirect references to a defendant’s 

failure to testify are constitutionally impermissible if the 

comments were manifestly intended to be or were of such a 

character that the jury would naturally and necessarily construe 

them to be a comment on the defendant’s failure to testify.”);

State v. Hales, 652 P.2d 1290, 1291–92 (Utah 1982) (considering 

whether a prosecutor’s statement was “of such character that a 

jury would naturally and necessarily construe it to amount to a 

comment on the failure of the accused to testify” (citation and 

internal quotation marks omitted)). But it is also an important 

query when a prosecutor is accused of improperly discussing a 

defendant’s post-arrest silence. In State v. Maas, 1999 UT App 

325, 991 P.2d 1108, we discussed this situation at length and 

highlighted cases in our jurisprudence where this issue has been 

addressed. Id. ¶¶ 16–23. Ultimately, we concluded that because 

 

(...continued)

as part of our analysis in determining the harmlessness of any

improper comments.
State v. Fairbourn

20141149-CA 15 2017 UT App 158

“the prosecution did not attempt to cast the forbidden inference 

that [the defendant’s] silence equaled guilt,” the State committed 

no Doyle violation.7Id. ¶ 25; see also Doyle v. Ohio, 426 U.S. 610, 

619 (1976) (holding that using a defendant’s post-Miranda silence

to impeach him is unconstitutional).

¶27 Similarly, here, the prosecutor made no “attempt to cast 

the forbidden inference.” See Maas, 1999 UT App 325, ¶ 25.

Rather than asking Defendant, “Why didn’t you say anything to

the police?” the prosecutor essentially asked, “Why didn’t you 

say this to the police when you did speak?” The line of 

questioning was meant to suggest fabrication, as Defendant 

admitted that he spoke with Detective at the hospital but did not 

share his version of events. Because the questions related more 

to Defendant’s version of events than to any invocation of his 

right to silence, the jury would not have “naturally and

necessarily construe[d] the comment as referring to defendant’s 

silence.” See Reyes, 861 P.2d at 1057 (citation and internal 

quotation marks omitted); see also State v. McCallie, 2016 UT App 

4, ¶ 29, 369 P.3d 103 (explaining that where a defendant “in fact 

made statements to police, and the prosecutor’s improper 

 

7. Along with this quoted language, the Maas court also based its 

conclusion in part on the fact that the State did not use 

“defendant’s silence to impeach her credibility.” State v. Maas, 

1999 UT App 325, ¶ 25, 991 P.2d 1108. At first blush, this 

reasoning seems to cut against our discussion above about the 

permissible impeachment of Defendant’s credibility. See supra 

¶¶ 22–23. However, the situation in Maas and the present case 

deal with two very different forms of silence. In Maas, the 

defendant invoked her right not to incriminate herself. But in the 

present case, in addressing whether any error would have been 

obvious to the trial court, we address something fundamentally

different: Defendant saying one thing but not another. 

Specifically, the prosecutor elicited that when Defendant talked 

to Detective he was not completely silent but was silent as to his 

version of events, which Defendant then later shared at trial.
State v. Fairbourn

20141149-CA 16 2017 UT App 158

comments referred to these statements,” we could not “say that a 

lay jury would naturally and necessarily have understood the 

prosecutor’s reference as a comment on [the defendant’s] silence 

in the Fifth Amendment sense”), cert. granted, 384 P.3d 567 (Utah 

2016).

¶28 Furthermore, there was persuasive evidence of 

Defendant’s guilt. Officer testified that Defendant proclaimed 

Officer was about to die, supporting the intent element of the 

aggravated murder charge. Four eyewitnesses testified that 

Defendant raised a knife and advanced toward Officer. 

Defendant admitted to having a knife and to holding it out 

toward Officer, although he maintained that he did so in a 

movement meant to signal surrender rather than attack. 

Whether Defendant did or did not share his version of events 

with Detective, invoked his right to remain silent, or actually 

remained silent is all of little consequence to the result given the 

evidence that was before the jury.

¶29 We therefore conclude that even if the trial court erred by 

failing to intervene when the prosecutor asked the nowchallenged questions, that error would not have been obvious to 

the trial court, see supra ¶ 22, and the error did not harm 

Defendant. We thus reject Defendant’s challenge to the 

prosecutor’s alleged comments on Defendant’s silence.

B. Questions About Witness Discrepancies

¶30 During Defendant’s cross-examination, the prosecutor 

asked why other witnesses’ accounts of the evening differed 

from Defendant’s: “So if you were trying to submit or surrender 

to the officer and these witnesses are perceiving something else, 

is it your testimony today that this is just a misunderstanding on 

their part?” Defendant now argues that this was “the prosecutor 

improperly examin[ing him] as to the veracity of other 

witnesses’ testimony.”

¶31 “Several courts have noted that it is improper to ask a 

criminal defendant to comment on the veracity of another 
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20141149-CA 17 2017 UT App 158

witness.” State v. Emmett, 839 P.2d 781, 787 (Utah 1992). 

“However, a prosecutor may ask questions that seek ‘to clarify 

defendant’s testimony in relation to prior testimony of another 

witness.’” State v. Thompson, 2014 UT App 14, ¶ 48, 318 P.3d 1221 

(quoting State v. Taylor, 884 P.2d 1293, 1299 (Utah Ct. App. 

1994)).

¶32 In Thompson, we decided that “[t]he prosecutor’s 

questions were appropriate” when, “[i]n cross-examining 

Thompson, the prosecutor reviewed Thompson’s and Friend’s 

testimonies” before “suggesting a discrepancy in the testimony.” 

Id. ¶¶ 49–50. The prosecutor went on to state,

“So, one of those wasn’t true. Which one was the 

truth? It was either you got up at 9:00, or you got 

up at 7:15. Or maybe it was something else. Why 

don’t you tell us what happened.” The prosecutor 

later returned to the issue and asked, “You think 

[Friend is] wrong about that?”

Id. ¶ 49. We concluded that because “the prosecutor was not 

suggesting perjury or asking Thompson to comment on Friend’s 

character or motivations” but instead “was highlighting a 

perceived discrepancy in the testimony and asking Thompson to 

clarify his testimony in relation to Friend’s testimony,” the 

questions were not improper. Id. ¶ 50.

¶33 We are confronted with similar facts here. The prosecutor 

did not say that Defendant was lying or ask Defendant to decide 

whether the other witnesses had lied. Instead, the prosecutor, 

like the prosecutor in Thompson, highlighted perceived 

discrepancies between Defendant’s and the other witnesses’ 

testimonies and asked Defendant to clarify. See id.

¶34 Because the prosecutor’s questions were proper, there 

was no error, let alone one that could have been obvious to the 

trial court. See State v. Bond, 2015 UT 88, ¶ 15, 361 P.3d 104

(explaining that for an appellate court to conclude plain error
State v. Fairbourn

20141149-CA 18 2017 UT App 158

occurred, there must have been an error). Accordingly, 

Defendant’s claim of plain error fails.

C. Questions About Officer’s Mindset

¶35 The third and final source of claimed prosecutorial 

misconduct originated in the State’s examination of Officer. The 

prosecutor asked Officer what was going through his mind 

during his encounter with Defendant. See supra ¶ 10. Defendant 

argues that this line of questioning and the associated answers 

“unfairly appealed to the jury’s sympathies, passions, and 

prejudice” by focusing the jury’s attention on Officer’s “fear of 

dying and his family, how they depended on him, and his need 

to get home to them.”8 The State counters that the question was

proper because it helped establish the “credibility and 

plausibility” of Officer’s testimony. We conclude that the 

question was improper but harmless.

¶36 We can see no permissible use of Officer’s testimony 

regarding thoughts of his family when he encountered 

Defendant. Whether he had a family and whether that family 

relied on him is of little consequence when the jury was tasked

with deciding whether Defendant attempted to murder Officer.9

 

8. Defendant’s argument presents as a hybrid between a 

prosecutorial-misconduct claim and a challenge under rule 403 

of the Utah Rules of Evidence. What Defendant seems to argue is 

that the prosecutor committed misconduct by deliberately 

introducing evidence that would be inadmissible under rule 403. 

But no rule 403 objection was lodged at trial, and thus the same 

plain-error standard applies whether we consider this claim one 

of prosecutorial misconduct or one of evidentiary error.

9. Whether Officer actually feared that Defendant was trying to 

kill him is a different question. Officer ultimately shot

Defendant, and evidence of Officer’s state of mind could be 

relevant to show that his use of force was not simply arbitrary, 

(continued...)
State v. Fairbourn

20141149-CA 19 2017 UT App 158

And we have repeatedly held that a prosecutor may not call 

jurors’ attention to matters that the jury would not be justified in 

considering when determining its verdict. See, e.g., State v. 

Campos, 2013 UT App 213, ¶ 50, 309 P.3d 1160. A jury may not 

find a defendant “guilty out of vengeance or sympathy for the 

victim rather than based on what the facts and the law 

required.” Id. ¶ 52.

¶37 But while the jury should not have heard discussion of 

Officer’s fear and concern for his family, we are not convinced 

that doing so influenced the verdict. The trial court instructed 

the jury that it should not allow “bias, sympathy, or prejudice” 

to affect the verdict. In the State’s closing argument, the 

prosecutor reiterated the instruction, urging the jury to base its 

verdict on the facts, “however bad you may feel for Officer.” 

Generally, absent evidence to the contrary, we “presume that the 

jury follows such instructions.” State v. Wright, 2013 UT App 142, 

¶ 42, 304 P.3d 887.

¶38 Furthermore, as we have already discussed, the evidence 

of Defendant’s guilt was strong. See supra ¶ 28. Under the 

circumstances, we will not reverse for plain error because the 

error was harmless. See State v. Dunn, 850 P.2d 1201, 1208–09 

(Utah 1993) (outlining the elements of a successful plain-error 

challenge, including that “the error is harmful, i.e., absent the 

error, there is a reasonable likelihood of a more favorable 

outcome for the appellant” and concluding that “[i]f any one of 

these requirements is not met, plain error is not established”).

 

(...continued)

both as background information and to support Officer’s

credibility where there was conflicting testimony about the 

threat posed by Defendant. The relevance of such evidence is 

addressed more specifically infra ¶¶ 44–46. But the information 

actually elicited here went beyond that narrow issue into 

forbidden territory.
State v. Fairbourn

20141149-CA 20 2017 UT App 158

II. Twenty-One-Foot Rule

¶39 The final issue on appeal relates to Officer’s testimony 

regarding the twenty-one-foot rule. Defendant argues that this 

testimony “is inadmissible expert testimony. It is also 

irrelevant.”

¶40 The challenged testimony came as the result of a question 

regarding the distance between Defendant and Officer when 

Defendant produced the knife. Officer told the prosecutor the 

distance was “from me to you,” when Officer was “sitting at the 

witness stand and [the prosecutor was] standing at the witness 

podium.” The prosecutor asked, “Is there anything about the 

distance between you and the defendant that caused you 

concern at this point?” Officer began to answer by saying, 

“There is. So I went through a federal training program. They 

teach you a rule with edged weapons,” but before Officer could 

finish, defense counsel objected. During a sidebar discussion, 

Defense counsel argued that “his state of mind is not relevant, 

you know, to this case.”10 He also initially argued that Officer 

was not qualified to testify as to “what studies have shown or 

what any other officer or other officers have been instructed or 

anyone in the state of Utah would have been instructed if they 

were a peace officer.” But defense counsel made clear that if the 

testimony instead pertained to whether “he was instructed that 

within 21 feet there’s a danger zone or something of that 

 

10. Beyond this initial assertion that the challenged testimony 

was irrelevant, defense counsel continued to object on this basis 

throughout the sidebar conversation and after the State’s proffer 

of what Officer’s testimony would be. He said, “I still don’t see 

how it’s relevant,” “I don’t think it’s relevant,” “I object to . . . the 

whole answer as relevant, which is going to his state of mind 

rather than the defendant’s,” and, “I’m sorry to be repetitive but 

just to be sure, my objection on relevance is that his state of 

mind, whether he felt threatened, is not an element of the offense 

and it’s not . . . relevant.”
State v. Fairbourn

20141149-CA 21 2017 UT App 158

nature,” his objection would be “to the whole relevancy of it.” 

Outside the presence of the jury, Officer proffered that he 

intended to explain that “when I went through the academy, 

they taught me that anything less than 21, 21 feet or less is a, is a 

kill zone.” After this proffer, defense counsel said, “That would 

take care of my other objections.”

11

¶41 By indicating that his “other objections” were resolved—

in context, meaning objections other than to relevance—defense 

counsel abandoned any challenge on the basis of expert 

testimony. And when the jury returned, Officer testified that 

when he went through training, “they instructed [him] that 

anything within 21 feet is a kill zone. Before somebody could get 

a shot off, they could actually get stabbed within that distance.” 

In other words, Officer provided precisely the sort of testimony 

to which Defendant objected on “the whole relevancy of it.”

¶42 By tying his expert-testimony objection to certain 

hypothetical testimony, Defendant’s objection on this basis was 

abandoned when the actual testimony was given and differed 

from the hypothetically objectionable testimony. See State v. 

McNeil, 2013 UT App 134, ¶ 23, 302 P.3d 844 (“A claim is not 

preserved for appeal if a party initially objects but later, while 

‘the wheel’s still in spin,’ abandons the objection and stipulates 

to the court’s intended action.” (citation omitted)), aff'd, 2016 UT 

3, 365 P.3d 699. Thus, any argument that the court committed 

 

11. Defense counsel later briefly addressed expert testimony by 

suggesting that articulating a rule that it “constitutes a threat if 

you are within 21 feet” would be “in the nature of expert 

testimony.” The trial court clarified, “I’m saying he can’t say all

officers are trained in this regard. He can say that’s what he was 

trained on in [training], right?” The prosecutor weighed in, and 

defense counsel’s only response was that “whether he felt 

threatened[] is not an element of the offense and it’s not . . . 

relevant.”
State v. Fairbourn

20141149-CA 22 2017 UT App 158

error by allowing Officer to testify as an expert is unpreserved, 

see id., and we do not address it further.

¶43 On the other hand, Defendant’s relevance objection was 

clearly preserved. See supra ¶ 40 note 10. And we will therefore 

consider the merits of Defendant’s argument on appeal that the 

allowed testimony was irrelevant.

¶44 Evidence is relevant where it “has any tendency to make a 

fact more or less probable than it would be without the 

evidence” and where “the fact is of consequence in determining 

the action.” Utah R. Evid. 401. “[E]vidence that has even the 

slightest probative value is relevant under the rules of evidence.” 

State v. Reece, 2015 UT 45, ¶ 64, 349 P.3d 712 (citation and 

internal quotation marks omitted). Officer’s testimony about the 

twenty-one-foot rule had probative value because it lent 

credibility to his version of events. As the trial court said, it 

helped explain why Officer reacted to the situation in the way 

that he did—by shooting Defendant.

¶45 Several witnesses testified at trial. “Whether or not these 

witnesses were credible was a fact of consequence in considering 

whether [Defendant] was guilty[.]” See State v. Calliham, 2002 UT 

87, ¶ 38, 57 P.3d 220. The jury was tasked with finding the truth 

between two different stories. In one, Defendant was 

threatening. He yelled that Officer was “about to fucking die,” 

pulled out a large knife, and lunged at Officer. Officer 

responded by shooting Defendant. In the other, Defendant never 

made such a verbal threat and instead carefully showed Officer 

his knife in an attempt to surrender. It seems logical that a police 

officer who shot a civilian because he felt threatened would be 

considered more credible than a police officer who shot a civilian 

who was attempting to surrender. By explaining to the jury one 

of the reasons Officer felt threatened, he was able to bolster his 

credibility. For this reason, Officer’s testimony regarding his 

training with the twenty-one-foot rule was relevant. Cf. id.

(concluding that photographs were relevant because of their 

“connection with the testimony of witnesses whose credibility 
State v. Fairbourn

20141149-CA 23 2017 UT App 158

was in question” and holding “that the trial court did not abuse 

its discretion in finding the photographs relevant”).

¶46 Because we agree with the trial court that testimony 

regarding the twenty-one-foot rule was relevant to show why 

Officer shot Defendant, and because that explanation supported

the credibility of Officer’s version of events, we cannot say that 

the trial court abused its discretion by allowing the testimony. 12

CONCLUSION

¶47 We are not persuaded that the prosecutor’s conduct at 

trial constituted plain error that harmed Defendant. We are 

likewise unpersuaded that the trial court abused its discretion in 

allowing Officer to testify regarding the twenty-one-foot rule. 

For these reasons, we will not disturb the jury’s verdict.

¶48 Affirmed.

 

12. Lumped in with his discussion of the twenty-one-foot rule, 

Defendant asserts that “admission of this evidence and the harm 

caused by the prosecutor’s misconduct constitutes cumulative 

error requiring the reversal of [Defendant’s] conviction.” Even if 

we believed Defendant’s cumulative-error claim were properly 

and thoroughly briefed, a claim of cumulative error requires a 

demonstration that the cumulative effect of several errors 

undermines our confidence that Defendant had a fair trial. See 

State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993). We have 

presumed two errors for purposes of our analysis, see id., but 

those presumed errors do not combine to undermine our 

confidence in Defendant’s conviction given the strength of the 

State’s evidence. Several witnesses testified that Defendant 

lunged at Officer with a large knife, and this testimony supports 

Defendant’s conviction, even when all presumed errors are 

taken into account.