2015 UT App 235

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

MESIA SII MAAMA,

Defendant and Appellant.

Opinion

No. 20131066-CA

Filed September 11, 2015

Third District Court, Salt Lake Department

The Honorable Katie Bernards-Goodman

No. 121904204

John B. Plimpton and Wojciech S. Nitecki, Attorneys

for Appellant

Sean D. Reyes and Ryan D. Tenney, Attorneys

for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES

J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.

TOOMEY, Judge:

¶1 Mesia Sii Maama appeals from her convictions of assault, 

a class B misdemeanor, and riot, a third degree felony.1 We 

affirm.

 

1. Mesia was tried jointly with two other defendants. Each 

codefendant filed a separate appeal, see State v. Maama, 2015 UT 

App 234; State v. Pham, 2015 UT App 233.
State v. Maama

20131066-CA 2 2015 UT App 235

BACKGROUND

¶2 Late one night in March 2012, Mesia, her brother Semisi 

Maama, a female friend (Friend), and Anh Tuam Pham, whom 

Mesia had been dating, drove Friend’s car to a fast-food 

restaurant.2 Mesia and Friend went inside the restaurant, and 

Semisi and Pham stayed outside in the parking lot drinking 

alcohol and listening to music. Meanwhile, two parking stalls 

away, a man (Father) and his eleven-year-old son (Child) sat in 

their car waiting for Child’s mother (Mother) to return.

¶3 Minutes later, Pham and Semisi approached Father’s 

vehicle. Pham opened Father’s door, pointed a gun at him, and 

ordered him to give them money. Father could not comply,

because Mother had his wallet inside the restaurant, and Pham 

pistol-whipped him. Father told the men that his son was 

present and pleaded with Semisi for sympathy, but Semisi 

repeated Pham’s demands for money. Child offered the men his 

allowance money, and Pham took it from him. Angered, Father 

ripped the gun out of Pham’s hand, got out of the car, knocked 

Semisi to the ground, and began fighting with Pham. Eventually,

Pham and Semisi ‚backed off‛ of Father.

¶4 Mesia emerged from the restaurant to see Semisi trying to 

stand up and bleeding, and she surmised that he and Pham had 

been in an altercation with Father, who appeared to be a ‚big 

guy.‛ Deciding it would be prudent to leave, Mesia backed 

Friend’s car out of the parking stall and reparked it behind 

 

2. ‚In reviewing a jury verdict, we view the evidence and all 

reasonable inferences drawn therefrom in a light most favorable 

to the verdict.‛ See State v. Dunn, 850 P.2d 1201, 1205 (Utah 1993). 

‚We recite the facts accordingly and present conflicting evidence 

only to the extent necessary to understand the issues raised on 

appeal.‛ Id. at 1205–06 (citation omitted).
State v. Maama

20131066-CA 3 2015 UT App 235

Father’s vehicle. Pham helped Semisi get in the back seat and

then hopped in the front passenger’s seat. Mesia ran back to the 

restaurant to shout ‚let’s go‛ to Friend and returned to the 

driver’s side of the car. Instead of driving off, Mesia, Pham, and 

Semisi waited for Friend to come out of the restaurant.

¶5 Believing that the fight was ‚over‛ and the situation had 

‚defused,‛ Father waved the gun and yelled, ‚Why are you guys 

trying to rob me?‛ This prompted Mesia to take the situation 

‚into *her+ own hands.‛ She approached Mother, who had 

recently returned to the parking lot, and asked her to get the gun 

from Father, promising to leave if Mother returned the gun. 

When Mother refused, Mesia approached Father, saying ‚Please, 

give me the gun.‛ Father pushed Mesia and told her to get away 

from him.

¶6 When Father turned his attention to Semisi and Pham, 

Mesia punched Father in the face. Still holding the gun, Father 

reached for Mesia but slipped, and Pham and Semisi ‚jumped‛ 

him. Father tried to protect himself as Mesia, Pham, and Semisi 

hit and kicked him on the ground. Mesia ultimately wrestled the 

gun from Father’s hand. Soon after, Friend came out of the 

restaurant, and the four companions got into the car and drove 

away.

¶7 Mesia was charged with aggravated assault and riot. 

Semisi and Pham also faced charges stemming from these 

events, and the three codefendants were tried together before the 

same jury in May 2013.

¶8 At trial, the witnesses gave conflicting accounts regarding 

Father’s use of the gun. Although Mother testified Father was 

pointing the gun ‚up,‛ not ‚at anybody,‛ Child did not recall 

whether Father pointed the gun at anyone. He also testified that 

Father had his arms up and ‚wasn’t doing anything with the 

gun‛ while Semisi and Pham sat in the car.
State v. Maama

20131066-CA 4 2015 UT App 235

¶9 In contrast, Mesia, Semisi, and Pham testified that Father 

pointed the gun at them. Mesia testified that Father pulled the 

trigger. While testifying in support of her theory that she acted 

in self-defense when she hit Father, Mesia said she did not know 

Semisi and Pham had a gun or had planned a robbery. She 

testified that she first noticed the gun in Father’s hand while she, 

Semisi, and Pham were waiting for Friend. According to Mesia, 

the gun’s slide was not open and she saw Father pull the trigger 

twice but it did not fire. After that, she testified that Father 

pulled back the slide, which Mesia believed signified Father 

loading the gun.3 Semisi and Pham similarly testified that Father 

pointed the gun in their direction, but Semisi testified that Father 

did not pull the trigger.

¶10 Father testified on direct examination that he 

‚remember*ed+ looking at the gun and the chamber was open‛ 

so ‚it wasn’t able to fire.‛ He also testified that he ‚could have‛ 

pointed the gun at Pham and Semisi, but he ‚never pointed it at 

[Mesia]‛—‚Not once.‛ When asked whether he pulled the 

trigger, Father answered, ‚Um, I—I—I believe I did.‛ The 

prosecutor responded, ‚You did?‛ Father replied, ‚I don’t know 

if I pulled the trigger. I just had it in my hand, but I was shaking 

it. You know what I mean? I don’t [think I] deliberately . . . 

pulled the trigger.‛ To clarify, the prosecutor asked, ‚So it was 

just in your hand shaking?‛ Father answered, ‚Yes.‛ He later 

testified, ‚I wasn’t trying to fire at nobody,‛ ‚I just wanted to get 

rid of the gun.‛

¶11 After the codefendants rested their cases, the prosecutor 

recalled Father to provide rebuttal testimony. Contrary to his 

previous testimony, Father denied pointing the gun at the 

codefendants and likewise denied pulling the trigger. Semisi’s 

 

3. Pham also testified that the gun was his but that he does not 

carry it loaded and a person has to pull the slide back to load it.
State v. Maama

20131066-CA 5 2015 UT App 235

counsel objected to Father’s rebuttal examination on the basis 

that ‚*r+ehashing *Father’s+ direct *testimony+ is not rebuttal.‛ 

The court overruled this objection, and the prosecutor continued.

¶12 When Mesia’s counsel began cross-examining Father, the 

following exchange, with our emphasis, ensued: 

*Mesia’s counsel+: *Father+, during your direct I 

have a habit of taking very detailed notes. 

[Father]: All you guys do.

*Mesia’s counsel+: Well, it depends. This is what I 

have when you were questioned about pointing a 

gun you said I don’t remember, could have. Is that 

still your testimony today?

[Father]: Yeah. Yeah.

*Mesia’s counsel+: Could have?

[Father]: Yes.

*Mesia’s counsel+: And then you testified that the 

chamber wouldn’t even fire which is similar to 

what you’re saying today, correct?

[Father]: Yeah. I remember looking at my gun in 

the right hand, you know, everything is going on 

‘cause I was up like this. And I just remember kind 

of glancing at it and seeing that the slide was back 

and it was open.

*Mesia’s counsel+: Okay. And then the question—

there was a question to you on the first day [of 

trial] about pulling the trigger and you testified I 

believe I did. 

[Father]: Yeah, I—

*Mesia’s counsel+: Do you remember saying that?
State v. Maama

20131066-CA 6 2015 UT App 235

THE COURT: See my notes say “don’t know.” So 

we’re not supposed to be relying so heavily on notes. We 

need to let—

*Mesia’s counsel+: Well, I get to question him about 

it. I mean—

THE COURT: Well, okay. But don’t make it—

*Mesia’s counsel+: He just said yes he believed he 

did. I mean—

*Father+: But I don’t believe I pulled trigger. I said I 

could have because if it’s in my hand and I’m 

shaking—

*Mesia’s counsel]: So you could have pulled the 

trigger?

*Father+: Yeah, but I wasn’t pointing the gun at that 

time, I was like this.

*Mesia’s counsel+: Okay.

*Father+: So I wasn’t—I never pointed the gun 

directly at anyone’s face or anything like that.

¶13 After the codefendants finished cross-examining Father, 

the State rested its case. When the court excused the jury, Mesia 

moved for a mistrial,4 arguing it was ‚inappropriate‛ for the 

judge to ‚interject with *her+ notes and make a comment‛ during 

Father’s rebuttal examination. The interruption stopped Father 

from ‚answering *the question+ in *Mesia’s+ favor‛ and showed 

‚bias‛ by ‚ma*king+ it clear to the jury that *the judge did not+ 

believe [Mesia’s+ witness.‛ The judge responded, ‚Well, then 

again, it’s my job to make sure somebody doesn’t misrepresent 

the evidence . . . he had said don’t know before.‛ The prosecutor 

 

4. Semisi and Pham joined in the motion.
State v. Maama

20131066-CA 7 2015 UT App 235

responded that the judge ‚did the appropriate thing to make 

sure that what came out was accurate‛ but the jurors should be 

instructed that any of the judge’s rulings should not affect their 

judgment. Mesia’s counsel countered that the judge’s statement 

‚wasn’t a ruling, it was an interjection.‛ The court denied the 

motion but gave a curative instruction.

¶14 When the jury returned, the trial court judge gave the 

following admonition, again with our emphasis:

As you heard earlier today, we had our little 

discussion about notes and this is why you 

shouldn’t rely too heavily on notes because I’m not 

so confident that anybody is right or wrong. Luckily 

in this situation you have the witness on the stand who 

clarified himself and it’s up to you to remember his 

testimony the way you remember it and never be 

overconfident in your notes. Okay.

¶15 The jury evidently rejected Mesia’s claim of self-defense. 

Although it acquitted her of aggravated assault, the jury 

returned a guilty verdict on riot and on the lesser included 

offense of assault. Mesia appeals.

ISSUES ON APPEAL

¶16 Mesia raises four issues on appeal. First, she contends that

the trial court denied her a fair trial by improperly commenting

on the evidence regarding Father’s use of the gun. Second, she

contends that the trial court committed reversible error in 

issuing a flawed curative instruction, in failing to instruct the 

jury on the State’s burden of proof with respect to self-defense, 

and in failing to instruct the jury to consider self-defense in 

relation to Mesia. Third, she contends that the evidence was

insufficient to support her conviction of assault because no 

reasonable jury could conclude beyond a reasonable doubt that 
State v. Maama

20131066-CA 8 2015 UT App 235

she did not act in self-defense. Finally, she contends that the 

cumulative effect of the trial court’s errors requires reversal.

ANALYSIS

I. Improper Comment During Father’s Rebuttal Testimony

¶17 Mesia argues the trial court should have granted her 

motion for a mistrial on the ground that the court improperly 

commented on the evidence concerning whether Father pulled 

the gun’s trigger. Mesia points to the dialogue during Father’s 

rebuttal testimony when the judge ‚sua sponte interrupted 

[Mesia’s] cross-examination of [Father] . . . to say that, according 

to her notes, *Father+ testified during the prosecution’s case-inchief that he did not know whether he pulled the trigger‛ of the 

gun. In Mesia’s view, the judge’s comment told the jury what the 

evidence was, and amounted to ‚an unsolicited, gratuitous, 

blatant comment on the evidence that interfered with Mesia’s 

cross-examination.‛ Furthermore, Mesia asserts that the judge’s 

comment was prejudicial because it ‚likely led the jury to 

disbelieve or disregard the compelling evidence that [Father] 

pulled the trigger.‛5 Because her ‚entire defense hinged on 

whether the jury believed she acted in self-defense,‛ Mesia 

asserts there is a reasonable likelihood that whether Father 

pulled the trigger was determinative of the guilty verdict.

6

 

5. Mesia does not claim the trial court’s interjection influenced 

the jury’s verdict in convicting her of riot; her contention is 

limited to the assault conviction.

6. Mesia also contends that the prejudice caused by the judge’s 

improper comment ‚was further exacerbated by her use of facial 

expressions to express disbelief at certain testimony.‛ Mesia 

asserts the improper comment, combined with the judge’s facial 

(continued<)
State v. Maama

20131066-CA 9 2015 UT App 235

¶18 The State agrees that ‚a judge may not comment on the 

underlying substance of a witness’s testimony‛ but contends the 

judge’s comment here was ‚more limited, being confined to a 

correction about what [Father] had said at trial, rather than 

about whether his testimony was actually true or not.‛ The State

argues that ‚what the judge did here was nothing more than try 

to prevent one side’s attorney from improperly commenting on

what the testimony had been.‛

¶19 ‚A trial court’s denial of a motion for mistrial will not be 

reversed absent an abuse of discretion.‛ State v. Butterfield, 2001 

UT 59, ¶ 46, 27 P.3d 1133 (citation and internal quotation marks 

omitted). ‚Unless the record clearly shows that the trial court’s 

decision is plainly wrong in that the incident so likely influenced 

the jury that the defendant cannot be said to have had a fair trial, 

we will not find that the court’s decision was an abuse of 

 

(<continued)

expressions, indicated to the jury that the judge ‚disbelieved the 

defense.‛ On the second day of trial, during a conference 

regarding jury instructions, Mesia’s counsel asked the court to 

modify the instruction on judicial neutrality to ‚add facial 

expressions.‛ The trial court judge acknowledged this concern, 

stating, ‚I rolled my eyes equally for the Defense and 

Prosecution, because everybody’s witnesses had a few eyerolling moments. All right, I will watch it.‛ We agree with the 

State that any error was harmless—no party disagreed with the 

judge’s description of her expressions and the record does not 

reflect that ‚those facial expressions favored one side over the 

other.‛ We therefore cannot conclude that the judge’s facial 

expressions exacerbated any prejudice caused by the judge’s 

improper comment. However, for reasons explained below, we 

agree with Mesia that a judge should forbear from conveying 

skepticism of any witness, through facial expressions or 

otherwise.
State v. Maama

20131066-CA 10 2015 UT App 235

discretion.‛ Id. (citation and internal quotation marks omitted).

In other words, to obtain reversal, the defendant must show that 

the challenged incident ‚substantially influenced‛ the verdict. See

id. ¶ 47 (citation and internal quotation marks omitted).

7

¶20 Rule 19(f) of the Utah Rules of Criminal Procedure 

instructs that ‚*t+he court shall not comment on the evidence in 

the case, and if the court refers to any of the evidence, it shall 

instruct the jury that they are the exclusive judges of all 

questions of fact.‛ ‚In the course of a jury trial, a judge must not 

act or speak so as to indicate an opinion either on the credibility 

of evidence or on disputed issues of fact.‛ State v. Beck, 2007 UT 

60, ¶ 15, 165 P.3d 1225. Likewise, a judge may not ‚purport to 

tell the jury either what the evidence is or what the facts are.‛ See

State v. Schoenfeld, 545 P.2d 193, 197 (Utah 1976). ‚This is because 

‘*i+t is the sole and exclusive province of the jury to determine 

the facts in all criminal cases, whether the evidence offered by 

the State is weak or strong, is in conflict or is not controverted.’‛ 

 

7. Mesia relies on State v. Beck, 2007 UT 60, 165 P.3d 1225, for her 

argument that this issue should be reviewed for correctness, 

rather than abuse of discretion. See id. ¶¶ 6–7, 10. She argues ‚a 

trial judge is less likely to fairly adjudicate a motion for a mistrial 

on the basis of the judge’s own conduct than the conduct of 

someone else.‛ But because Mesia’s reliance on Beck is 

misplaced, we reject this argument. Although, in Beck, the 

supreme court reviewed this court’s application of the law for 

correctness, it reviewed a district court’s improper questioning 

for whether the court ‚exceeded the range of discretion 

permitted by the rules of evidence and case law.‛ Id. ¶ 7. In other 

words, the supreme court reviewed the district court’s conduct 

for an abuse of discretion. Id. Furthermore, even under a 

correctness standard, we would conclude that the judge’s 

comments were erroneous, but not prejudicial. See infra ¶¶ 22–

27.
State v. Maama

20131066-CA 11 2015 UT App 235

State v. Davis, 2013 UT App 228, ¶ 97, 311 P.3d 538 (alteration in 

original) (quoting State v. Green, 6 P.2d 177, 181 (Utah 1931)).

¶21 We agree that the trial court improperly commented on 

the evidence in this case. It appears the judge may have believed 

that Mesia’s counsel misstated Father’s testimony and stepped in 

to assert that her own notes differed from counsel’s. Although 

she went on to caution that no one should ‚rely*+ so heavily on 

notes,‛ by telling the jury what her own notes indicated, the 

judge ‚purport[ed] to tell the jury either what the evidence is or 

what the facts are.‛ See Schoenfeld, 545 P.2d at 197. Because the 

judge ‚indicate[d] an opinion . . . on disputed issues of fact‛ with 

respect to whether Father pulled the trigger, see Beck, 2007 UT 60, 

¶ 15, we conclude the interjection constituted an improper 

comment on the evidence. 

¶22 Furthermore, because counsel did not misstate Father’s 

testimony, we are not convinced the interjection merely 

corrected counsel’s characterization of what Father said. Father 

testified both that he believed he did pull the trigger and that he 

did not know whether he did. Counsel merely inquired into the 

inconsistency in Father’s testimony. The court was not faced

with a situation in which it needed to prevent counsel from 

improperly suggesting what the testimony had been.

Accordingly, given that there was nothing for the court to 

correct, the trial court’s interference was unwarranted.

¶23 Nevertheless, the judge’s interjection did not undermine 

the overall fairness of the trial. Although the court’s comment

went to whether Father pulled the trigger, what the judge 

recalled from her notes was not determinative of whether Mesia 

acted in self-defense, and therefore likely did not substantially 

influence the jury’s verdict. Mesia claimed she acted in selfdefense when she punched Father. Determining whether Mesia 

acted in self-defense hinged on whether she ‚reasonably 

believe[d] that force or a threat of force [was] necessary to 
State v. Maama

20131066-CA 12 2015 UT App 235

defend‛ against another’s ‚imminent use of unlawful force.‛ See 

Utah Code Ann. § 76-2-402(1)(a) (LexisNexis 2012). At the point 

Mesia punched Father, Father’s fight with Semisi and Pham was 

already ‚over.‛ Yet, Mesia reengaged with Mother and Father to 

request that Father return the gun. Although there is conflicting 

evidence of whether Father pulled the trigger or pointed the gun 

at Mesia, Semisi, and Pham, the jurors had to decide whether the 

State met its burden to disprove that Mesia reasonably believed

force was necessary to defend herself and the others. They had 

to consider the nature and immediacy of Father’s threat. See id. 

§ 76-2-402(5)(a)–(b). Given the circumstances, we believe the 

factual dispute about whether Father pulled the gun’s trigger 

was only a small part of the jurors’ resolution of Mesia’s selfdefense claim. Thus, without relying on a finding that Father did 

or did not pull the trigger, the jurors could have concluded 

Mesia simply acted to get the gun back, not to protect herself or 

others.

¶24 Our conclusion is bolstered by the fact that the conflicting 

evidence over whether Father pulled the trigger did not 

permeate the trial or the parties’ closing statements. The trial 

court’s interjection was an isolated comment made during a 

three-day trial that yielded approximately 512 pages of 

transcribed testimony and argument. The prosecutor’s closing 

statements focused on whether Father pointed the gun at anyone 

instead of whether he pulled the trigger. The prosecutor alluded 

to the interjection only once, and when he noted that Father had 

‚clarified himself,‛ the prosecutor reminded the jurors it was 

their duty to decide the facts. For instance, the prosecutor argued 

as follows: 

In his words [Father] said the situation was 

deescalated, they’re gone from him they’re in the 

car. He never aimed it or pointed it at anyone. And 

again, those—this is where you’re the fact finder as 

to what you remember. There was some 
State v. Maama

20131066-CA 13 2015 UT App 235

clarification on the stand but at least from my 

understanding and I could be wrong, just as 

anybody else could be, he has the gun, he’s 

shaking. But he never testified that he raised it up 

and pointed it at anyone or deliberately pulled the 

trigger at anyone. He could have had his finger on 

the trigger. But you’re the fact finders and I’m not 

going to beat that horse.

Although the prosecutor argued the facts in the light most 

favorable to the State’s case (as is expected), he did not unduly 

reiterate or emphasize the judge’s interjection about whether 

Father pulled the trigger.

¶25 Only Semisi’s counsel expressly mentioned the judge’s 

interjection during closing arguments and, in doing so, argued 

for an interpretation of Father’s testimony that favored Mesia. 

Specifically:

[t]he situation is deescalated. Mesia comes out, sees 

the gun being—trigger being pulled. [Father] . . . 

admitted that he had pulled the trigger at least 

once. When the judge said something, *Mesia’s 

counsel] asked him, he was answering yes, I did, 

the judge interrupted him and then he changed it 

back to well, I believe I may have. I ma[y] have. He 

softened it because he’s feeling like that was a bad 

act. He admitted in direct and then softens it with 

a—well, I think I maybe. Maybe. 

Thus, during closing arguments the trial court’s comment was 

mentioned only once—to emphasize that Father prevaricated in 

his testimony concerning whether he pulled the trigger. Because 

the parties did not treat the issue as pivotal, and because in any 

event the jury likely understood that Father had contradicted 

himself on this point, we do not believe that the court’s 

interjection ‚substantially influenced‛ the verdict. See State v. 
State v. Maama

20131066-CA 14 2015 UT App 235

Butterfield, 2001 UT 59, ¶ 47, 27 P.3d 1133 (emphasis omitted) 

(citation and internal quotation marks omitted).

¶26 In sum, although commenting on the evidence was 

improper, we conclude the trial court’s interjection did not likely 

influence the jury and thus did not render the trial unfair. 

Accordingly, we hold that the denial of Mesia’s motion for 

mistrial was not ‚plainly wrong‛ and thus not an abuse of the 

court’s discretion.

II. Jury Instructions

¶27 Mesia next contends that the jury instructions given by 

the trial court were flawed in three ways. Mesia first argues that 

the court erred in giving the curative instruction because the 

instruction included an improper comment on the evidence. 

Second, Mesia contends the jury instructions regarding selfdefense were inadequate because the trial court failed to instruct 

the jury on the State’s burden to disprove beyond a reasonable 

doubt that Mesia acted in self-defense. Third, Mesia contends the 

trial court did not clearly instruct the jury to consider the selfdefense jury instructions in connection with Mesia’s defense.

¶28 Mesia did not preserve her challenge to the jury 

instructions but seeks our review under the plain-error and 

ineffective-assistance-of-counsel exceptions to the preservation 

rule. To establish plain error, an appellant must show ‚(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, or phrased differently, our confidence in the verdict is 

undermined.‛ State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993). 

To demonstrate ineffective assistance of counsel, an appellant 

must show (i) that trial counsel’s ‚performance was deficient‛

and (ii) that ‚the deficient performance prejudiced the defense.‛

Strickland v. Washington, 466 U.S. 668, 687 (1984). Under both the 

plain-error analysis and the ineffective-assistance-of-counsel 
State v. Maama

20131066-CA 15 2015 UT App 235

analysis, Mesia must demonstrate that any purported error 

prejudiced her defense. See Dunn, 850 P.2d at 1225.

¶29 Jury instructions require no particular form so long as 

they accurately convey the law. See State v. Marchet, 2009 UT 

App 262, ¶ 23, 219 P.3d 75. ‚[I]f taken as a whole they fairly 

instruct the jury on the law applicable to the case, the fact that 

one of the instructions, standing alone, is not as accurate as it 

might have been is not reversible error.‛ State v. Davis, 2013 UT 

App 228, ¶ 104, 311 P.3d 538 (citation and internal quotation 

marks omitted). Furthermore, ‚*w+e review challenges to jury 

instructions under a correctness standard.‛ Id. ¶ 15 (citation and 

internal quotation marks omitted).

A. Curative Instruction

¶30 Mesia contends the trial court improperly commented on 

the evidence a second time when the court issued an admonition 

intended to cure the prejudice created by the court’s interjection 

regarding Father’s testimony about his handling of the gun. The 

court told the jury that ‚*l+uckily in this situation you have the 

witness on the stand who clarified himself.‛ This statement, 

Mesia asserts, ‚vouched for the credibility‛ and accuracy of the 

answer Father gave after the judge interrupted him: ‚I don’t 

believe I pulled trigger. I said I could have . . . .‛

¶31 We conclude that the curative instruction given by the 

court in response to Mesia’s counsel’s objection to the court’s 

interjection was not prejudicial when viewed in context and with 

the other instructions. Mesia takes issue with the isolated 

language that Father ‚clarified himself,‛ but the curative 

instruction also included language reminding the jurors it was 

their responsibility to remember Father’s testimony, expressing 

doubt regarding the accuracy of any notes about his testimony, 

and cautioning them not to ‚rely too heavily on notes.‛ This

instruction as a whole emphasized the jurors’ duty to depend on 

their own memories of the testimony presented at trial.
State v. Maama

20131066-CA 16 2015 UT App 235

¶32 In addition, other instructions informed the jury that

‚[d]eciding what the facts are is your job, not *the judge’s+.‛ 

Instruction 4 told the jury that it must ‚decide the factual 

issues,‛ i.e., issues ‚relate*d+ to what did, or did not, happen in 

this case.‛ Further, the court instructed the jury, ‚Neither the 

lawyers nor I decide the case. That is your role. Do not be 

influenced by what you think our opinions might be. Make your 

decision based on the law given in my instructions and on the 

evidence presented in court.‛ Instruction 15 focused on judicial 

neutrality, stating, ‚As the judge, I am neutral. If I have said or 

done anything that makes you think I favor one side or another, 

that was not my intention. Do not interpret anything I have said 

or done as indicating that I have any particular view of the 

evidence or the decision you should reach.‛ Given these other 

jury instructions, we are not convinced that the curative 

instruction’s isolated statement that Father ‚clarified himself‛ on 

the stand created a reasonable likelihood of a different result.

¶33 In short, even assuming there was error in the curative 

instruction, Mesia has not demonstrated she was prejudiced by 

it. Accordingly, we conclude her claims of plain error and 

ineffective assistance of counsel based on the curative instruction 

fail.

B. Instruction Regarding the State’s Burden of Proof

¶34 Mesia asserts that the relevant jury instruction, 

Instruction 57, did not adequately explain to the jury the State’s 

burden to disprove self-defense beyond a reasonable doubt. 

Specifically, Mesia argues that the instruction asked the jury to 

determine the threshold issue of whether self-defense had been 

raised and that this may have confused the jury about whether 

self-defense applied to the charges against her. We are not 

convinced.

¶35 Utah law requires the State ‚to disprove the affirmative 

proposition of self-defense, not just prove guilt, beyond a 
State v. Maama

20131066-CA 17 2015 UT App 235

reasonable doubt.‛ State v. Garcia, 2001 UT App 19, ¶ 16, 18 P.3d 

1123. ‚When the defendant has reached the threshold to merit 

self-defense instructions,‛ trial courts must issue special jury 

instructions that ‚clearly communicate to the jury what the 

burden of proof is and who carries the burden.‛ Id. Accordingly, 

‚*t+rial courts should separately instruct each jury clearly that 

the State must disprove self-defense, and other affirmative 

defenses, beyond a reasonable doubt.‛ Id.

¶36 Reading the instruction as a whole, we are not persuaded

Mesia has demonstrated that Instruction 57 inadequately 

instructed the jury on the law applicable to the case. The 

instruction reads,

[T]he laws of Utah do not require a defendant to 

establish self-defense by a preponderance or 

greater weight of the evidence. Once the issue of selfdefense is raised, whether by the prosecution’s 

witnesses or those of the defense, the prosecution 

has the burden to prove beyond a reasonable doubt 

that the act was not done in self-defense. The 

defendant has no particular burden of proof but is 

entitled to be found not guilty if there is any basis 

in the evidence from either side sufficient to create 

a reasonable doubt as to whether he acted in selfdefense.

(Emphasis added.) Mesia argues that the clause ‚[o]nce the issue 

of self-defense is raised‛ communicated to the jury that ‚the 

prosecution needed to disprove self-defense only if the issue of 

self-defense was raised.‛ Mesia further argues that the phrase ‚as 

to whether he acted in self-defense‛ implies that Mesia would 

have had to produce positive evidence that she acted in selfdefense. We are not persuaded by Mesia’s argument. 

¶37 The instruction’s phrasing did not create ambiguity or 

confusion regarding the applicability of the State’s burden of 
State v. Maama

20131066-CA 18 2015 UT App 235

proof. It correctly described to the jury the prosecutor’s burden 

and the standard of proof, and it pointed out that ‚[t]he 

defendant has no particular burden of proof but is entitled to be 

found not guilty if there is any basis in the evidence from either 

side sufficient to create a reasonable doubt as to whether he 

acted in self-defense.‛ See Garcia, 2001 UT App 19, ¶¶ 7–16, 18 

(providing a thorough analysis concerning the allocation of the 

burden of proof with respect to self-defense instructions). As a 

result, Mesia has not established that Instruction 57 constitutes 

error, let alone obvious error, and her plain-error claim fails. 

Similarly, because any objection to Instruction 57 would have 

been futile, Mesia’s trial counsel did not render deficient 

performance. See Layton City v. Carr, 2014 UT App 227, ¶ 19, 336 

P.3d 587 (‚[C]ounsel’s performance at trial is not deficient if 

counsel refrains from making futile objections, motions, or 

requests.‛ (citation and internal quotation marks omitted)). 

Mesia therefore is not entitled to relief under her theories of 

plain error or ineffective assistance of counsel.

C. Whether the Jury Instructions Conveyed That Mesia 

Raised Self-Defense

¶38 Mesia also argues that the jury instructions failed to 

convey that ‚self-defense was raised or that it otherwise applied 

to the charges against Mesia.‛ In particular, she claims the selfdefense instructions were deficient because their use of 

masculine pronouns suggested the defense applied only to her 

male codefendants, and because they did not specifically state 

that self-defense applied to her.

¶39 Here, for three reasons, Mesia has not established that she 

was prejudiced by the alleged deficiencies in the self-defense 

instructions. First, the other self-defense instructions were 

gender neutral. For instance, Instruction 51, the initial selfdefense instruction, explained that ‚[a] person is justified in 

threatening or using force against another when and to the 
State v. Maama

20131066-CA 19 2015 UT App 235

extent that he or she reasonably believes that force is necessary to 

defend himself or a third person against such other’s imminent 

use of unlawful force.‛ (Emphasis added.) There are other 

examples. Instruction 52 explained that a ‚person is not justified 

in using force if he or she‛ initially provoked the use of force, etc. 

(Emphasis added.) Instruction 55 says that ‚a person does not 

have a duty to retreat.‛ (Emphasis added.) Instruction 56 speaks 

in terms of ‚*i+f one is confronted by the appearance of peril.‛ 

(Emphasis added.) Thus, the fact that Instruction 57 used the 

masculine pronoun in stating that the ‚defendant . . . is entitled 

to be found not guilty if . . . he acted in self-defense‛ does not 

convince us that the jury might have read the self-defense 

instructions as applying to only the male codefendants.

(Emphasis added.) 

¶40 Second, the compulsion instruction explicitly directed 

that it ‚applie*d+ only to *Semisi’s+ claim of coercion in the 

alleged Robbery.‛ Because the compulsion instruction was 

expressly limited to one charge against Semisi, we agree with the 

State that ‚the reasonable implication to the jury was that, unlike 

compulsion, self-defense applied to all‛ defendants and all 

charges. We therefore conclude that the instructions as a whole 

fairly instructed the jury that it could consider self-defense in 

connection with the charges against Mesia.

¶41 Finally, we are not persuaded that the jury was confused 

or misled regarding whether the self-defense instructions 

applied to Mesia. The overall tenor of the proceedings made 

clear to the jury that Mesia had raised self-defense as an 

affirmative defense. During opening statements, Mesia’s counsel 

told the jury that Mesia ‚did nothing illegal. . . . [S]he was trying 

to . . . defend what she has a right to do under the law.‛ The 

closing arguments also made plain that the jury should consider 

whether self-defense applied to the charges against Mesia. 

Mesia’s counsel specifically asked the jury ‚to look carefully at 

the instructions regarding self-defense‛ because ‚there is self-
State v. Maama

20131066-CA 20 2015 UT App 235

defense on the aggravated assault and there is self-defense on 

the riot for Mesia.‛ The prosecutor’s closing argument repeated 

an instruction on self-defense, explaining that ‚*t+here is a selfdefense claim, specifically by Mesia Maama,‛ and argued more 

than once that the facts of the case did ‚not . . . equal selfdefense.‛ Given these circumstances, we do not see how the jury 

could have been confused about whether Mesia had raised selfdefense as an affirmative defense. For these reasons, we 

conclude Mesia has not established that the purported error in 

the self-defense instructions prejudiced her defense.

8

III. Sufficiency of the Evidence to Support the Assault 

Conviction

¶42 Mesia contends the evidence was insufficient to support 

her conviction for assault.9 The parties agree the assault 

conviction was based on Mesia punching Father immediately 

after she approached him to ask for the gun. Mesia admits she 

punched Father, but contends the evidence was insufficient for 

conviction because ‚*n+o reasonable jury could have concluded 

beyond a reasonable doubt that Mesia did not reasonably believe 

 

8. Although confusion was unlikely here, we agree with Mesia 

that instructing the jury using pronouns that correspond with 

the gender of the person or persons to whom they apply avoids 

any possible confusion and thus is the better practice.

9. Assault is ‚an attempt, with unlawful force or violence, to do 

bodily injury to another; . . . a threat, accompanied by a show of 

immediate force or violence, to do bodily injury to another; 

or . . . an act, committed with unlawful force or violence, that 

causes bodily injury to another or creates a substantial risk of 

bodily injury to another.‛ Utah Code Ann. § 76-5-102(1) 

(LexisNexis 2012). Mesia does not challenge the sufficiency of 

the evidence with regard to her riot conviction.
State v. Maama

20131066-CA 21 2015 UT App 235

that punching [Father] was necessary to defend[] herself, Semisi, 

or Pham from *Father’s+ imminent use of unlawful force.‛

¶43 ‚We will reverse a jury conviction for insufficient 

evidence only if the evidence presented at trial is so insufficient 

that reasonable minds could not have reached the verdict.‛ State 

v. Fedorowicz, 2002 UT 67, ¶ 40, 52 P.3d 1194 (citation and 

internal quotation marks omitted). ‚[I]n reviewing the 

sufficiency of the evidence, we refuse to re-evaluate the 

credibility of witnesses or second-guess the jury’s conclusion.‛ 

Id. (citation and internal quotation marks omitted). ‚We also 

assume that the jury believed the evidence that supports the 

verdict.‛ Id.

¶44 A person is justified in using non-deadly force against 

another in self-defense ‚when and to the extent that the person 

reasonably believes that force or a threat of force is necessary to 

defend the person or a third person against another person’s 

imminent use of unlawful force.‛ Utah Code Ann. § 76-2-

402(1)(a) (LexisNexis 2012). ‚In determining *the+ imminence‛ of 

the threat or the ‚reasonableness‛ of force used in self-defense, 

‚the trier of fact may consider . . . the nature . . . *and+ the

immediacy of the danger.‛ Id. § 76-2-402(5)(a)–(b). ‚Force is 

justifiable under section 76-2-402 only if a reasonable belief in the 

imminence of unlawful harm and in the necessity of defensive 

force coincide with the defendant’s use of force.‛ State v. Berriel, 

2013 UT 19, ¶ 14, 299 P.3d 1133. 

¶45 Viewing the evidence in the light most favorable to the 

verdict, we believe the jury could conclude beyond a reasonable 

doubt that Mesia did not commit the assault against Father in 

self-defense. There was evidence that by the time Mesia saw 

Father holding the gun, the fight was ‚over‛ and the situation 

had ‚defused.‛ Despite this de-escalation, Mesia approached 

Father, asking for the gun. The jury could reasonably conclude 

from this evidence that Father did not pose an ‚imminent‛ 
State v. Maama

20131066-CA 22 2015 UT App 235

threat to Mesia, Semisi, or Pham. Although Father waved the 

gun—and perhaps even pulled the trigger—some evidence 

suggested he never pointed it at anyone. As a result, the jury was 

justified in concluding that Mesia did not have a reasonable 

belief that punching Father was ‚necessary to defend‛ herself 

and her codefendants. Accordingly, the evidence is sufficient to 

support Mesia’s assault conviction.

IV. Cumulative Error

¶46 Finally, Mesia contends that even if her several claimed 

errors were not individually prejudicial, they constitute 

cumulative error and warrant reversal. ‚Under the cumulative 

error doctrine, we will reverse only if the cumulative effect of the 

several errors undermines our confidence . . . that a fair trial was 

had.‛ See State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993) 

(omission in original) (citation and internal quotation marks 

omitted); see also State v. Gonzales, 2005 UT 72, ¶ 74, 125 P.3d 878 

(explaining that ‚*i+f the claims are found on appeal to not 

constitute error, or the errors are found to be so minor as to 

result in no harm, the doctrine [of cumulative error] will not be 

applied‛). As discussed above, because we believe the errors in 

this case are so minor as to result in no harm, we conclude that 

their cumulative effect does not ‚undermine our confidence‛ in 

the fairness of the trial so as to warrant reversal of Mesia’s 

convictions. See Dunn, 850 P.2d at 1229.

CONCLUSION

¶47 We conclude that although the trial court improperly 

commented on the evidence, the comment did not substantially 

influence the verdict. The trial court therefore did not exceed its 

discretion in denying Mesia’s motion for a mistrial. We further 

conclude that any error in the curative instruction addressing the 

court’s improper comment did not prejudice Mesia. We also 

have determined the jury instructions did not misstate the State’s 
State v. Maama

20131066-CA 23 2015 UT App 235

burden of proof and Mesia’s other claims of error in the jury 

instructions were harmless. Moreover, the evidence was 

sufficient to sustain Mesia’s conviction for assault. Accordingly, 

we affirm Mesia’s convictions.