2019 UT App 116

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

JULIO ALPHONSO DOMINGUEZ,

Appellant.

Opinion

No. 20170618-CA

Filed July 5, 2019

Second District Court, Ogden Department

The Honorable Scott M. Hadley

No. 161900320

Troy L. Booher and Freyja R. Johnson, Attorneys

for Appellant

Sean D. Reyes and Jeffrey D. Mann, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES JILL M. POHLMAN and RYAN M. HARRIS

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Julio Alphonso Dominguez appeals his conviction of

aggravated burglary. We affirm.

BACKGROUND

¶2 Dominguez went to a club with three male friends—his 

eventual codefendants Eric Duran, Davy Ray Martinez (D. 

Martinez), and Jaime Martinez (J. Martinez)—and two female 

friends. The group met Victim for the first time at the club. 

Victim had been drinking heavily. Victim invited the group, 
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along with another woman (Witness) and her two male friends 

to come to his apartment to continue drinking.

¶3 While walking to Victim’s apartment from the car, Victim 

put his arm around one of Dominguez’s female friends and 

touched her breast.1 This upset J. Martinez, who told Victim not 

to touch his “girl.” Victim made some form of apology, which 

apparently diffused the situation, and the group continued to 

Victim’s apartment.

¶4 When the group arrived at Victim’s apartment, they 

continued drinking. Victim was pushy with Dominguez and his 

friends, insisting that they “sit down” when they did not want to 

and telling them they could not play music on their phones. 

According to Dominguez, Victim then began goading them, 

stating, “You guys think you’re so bad. I bet I could take all four 

of you on.” He then pushed Duran, who retaliated by punching 

Victim. The fight escalated, and all four codefendants attacked 

Victim, punching and kicking him in the face and body. At some 

point, the fighting stopped long enough for Victim to run into

his bedroom and lock the door.

¶5 When the fight between the men first began, and before 

Victim escaped to his bedroom, Dominguez’s two female friends 

were in the bedroom. At some point during the fighting, they 

left the bedroom and apparently saw the fight going on in the 

hallway. Dominguez and one of the women testified that the 

two women ran back into the bedroom when they saw the 

fighting and were inside the room when Victim ran in

and locked the door behind him. In contrast, Victim and Witness 

testified that the women did not go back into the bedroom and 

were outside the room when Victim locked himself inside. And 

 

1. Testimony at trial conflicted as to whether the touching was 

intentional or unintentional.
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another witness, one of Witness’s male friends, testified that he 

did not see anyone else in the bedroom when Victim shut the 

door.

¶6 After Victim locked himself in his bedroom, the 

codefendants broke down the door. According to Dominguez, 

their purpose for breaking down the door was to rescue the two 

women because they could hear the women screaming and were 

worried about their safety due to Victim’s earlier aggressiveness 

and his touching one of the women. When the door gave way, 

the codefendants rushed in and began punching and kicking 

Victim again.

¶7 Eventually, the codefendants finished beating Victim and 

ran out of the apartment. When they left, Witness went into the 

bedroom to check on Victim. While she was there, Duran

returned to the apartment. According to Witness, Duran held up 

Victim’s keys and told him, “We’ve got your keys. Give me your 

wallet.” Victim began to pull out his wallet, and Witness stood in 

the door and told Duran to leave. He responded, “Move, bitch,

I’m going to stab this fool.” Witness told him, “Nobody’s 

stabbing nobody,” at which point D. Martinez “walked up . . . 

behind” Duran and punched Witness in the face. Witness fell to 

the floor and blacked out. When she regained consciousness, 

Dominguez was in the room, and she saw him punch Victim 

three more times.

¶8 All four codefendants were charged with aggravated 

burglary based on the allegation that they broke into the 

bedroom for the purpose of assaulting Victim, along with lesser 

included offenses of assault. Duran and D. Martinez were also 

charged with aggravated robbery, and D. Martinez was charged 

with an additional assault in connection with the allegation that 

he hit Witness.

¶9 Following the incident, Witness gave a statement to police 

regarding the location of Dominguez’s two female friends 
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during the fighting. She stated, “The girls were in the back 

bedroom and ran out when the boys went in the bedroom.”2 At 

trial, defense counsel confronted Witness with this statement, 

attempting to impeach her trial testimony that the women left 

the room before Victim locked himself inside. Witness explained 

the discrepancy by clarifying, “What I meant by ‘running out,’ is 

running out of the apartment.”

¶10 Prior to trial, the court granted a motion in limine to 

exclude Dominguez’s criminal record from the State’s case-inchief. Nevertheless, at one point in the trial, one of the police 

officers who investigated the case (Officer) was asked, “[D]id 

you run Julio Dominguez’s history and access his driver’s license 

photograph?” Officer responded, “I don’t remember exactly how 

I was able to identify him. I believe it was through his mug shot 

that we have on file.” Defense counsel objected, and the court 

conducted a discussion at the bench off the record. The 

prosecutor then continued with a different line of questioning. 

Defense counsel subsequently moved for a mistrial. The court 

denied the motion, concluding that although the statement was 

clearly inadmissible and potentially prejudicial, Officer’s 

statement was inadvertent and any damage was mitigated 

 

2. We quote the statement as recited by defense counsel in his 

questioning of Witness, since that is the statement contained in 

the record on appeal. But we acknowledge, as discussed further 

below, see infra ¶¶ 26–29, that there is a question as to the 

accuracy of the statement. According to Dominguez’s appellate 

counsel, the recording of the statement demonstrates that 

Witness’s actual statement to police was, “They were in the back 

of the bedroom, and then once the boys all got in the bedroom, 

the girls ran out and went out probably to the car, I’m guessing.” 

Dominguez seeks a remand pursuant to rule 23B of the Utah 

Rules of Appellate Procedure to have the recording be made part 

of the appellate record. See infra ¶ 14.
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20170618-CA 5 2019 UT App 116

because defense counsel did not draw attention to it and the 

prosecution moved to a different line of inquiry.

¶11 Dominguez’s counsel requested a jury instruction on 

defense of others, and the primary defense asserted at trial was 

that Dominguez and his codefendants were justified in breaking 

down Victim’s bedroom door because they did so with the 

purpose of protecting the women, who were locked in the room 

with Victim. Counsel approved the following jury instruction:

A person is justified in threatening or using 

force against another when and to the 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.

In determining imminence or 

reasonableness, the trier of fact may consider, but 

is not limited to, any of the following factors:

(1) the nature of the danger;

(2) the immediacy of the danger;

(3) the probability that the unlawful force 

would result in death or serious bodily 

injury;

(4) the other’s prior violent acts or violent 

propensities; and

(5) any patterns of abuse or violence in the 

parties’ relationship.

A person does not have a duty to retreat 

from the force or threatened force stated above in a 
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20170618-CA 6 2019 UT App 116

place where that person has lawfully entered or 

remained.

A person is not justified in using force if the 

person was the aggressor or was engaged in a 

combat by agreement, unless the person 

withdraws from the encounter and effectively 

communicates to the other person his intent to do 

so and, notwithstanding, the other person 

continues or threatens to continue the use of 

unlawful force.

The defendant is not required to prove that 

the defense applies. Rather, the State must prove 

beyond a reasonable doubt that the defense does 

not apply. The State has the burden of proof at all 

times. If the State has not carried this burden, the 

jury should find the defendant not guilty.

Counsel also approved the placement of the defense-of-others 

instruction at the end of the instructions providing definitions 

for various terms rather than within the instructions setting forth 

the elements of the crime with which Dominguez was charged.

¶12 Following a three-day trial, in which the codefendants 

were tried together, the jury found all four codefendants guilty 

of aggravated burglary but acquitted Duran and D. Martinez of 

the other charges. Dominguez was sentenced to ten years to life 

in prison for aggravated burglary. He now appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Dominguez first argues that his counsel provided 

ineffective assistance by failing to request a jury instruction 

explicitly linking the defense-of-others instruction to the 

aggravated burglary charge. “An ineffective assistance of 
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20170618-CA 7 2019 UT App 116

counsel claim raised for the first time on appeal presents a 

question of law.” State v. Perry, 2009 UT App 51, ¶ 9, 204 P.3d 

880 (quotation simplified).

¶14 Dominguez next asserts that counsel was ineffective for 

inaccurately quoting Witness’s police statement when

attempting to impeach her and for failing to confront her with 

her recorded police statement. Because the record on appeal 

does not contain the recorded statement, Dominguez has 

requested that we remand the case pursuant to rule 23B of the 

Utah Rules of Appellate Procedure to permit the trial court to 

supplement the record with additional findings. In determining 

whether rule 23B remand is appropriate, we must assess 

whether Dominguez has made “‘a nonspeculative allegation of 

facts, not fully appearing in the record on appeal, which, if true, 

could support a determination that counsel was ineffective.’” See 

State v. Griffin, 2015 UT 18, ¶ 17, 441 P.3d 1166 (quoting Utah R. 

App. P. 23B(a)).

¶15 Finally, Dominguez challenges the trial court’s denial of 

his motion for mistrial. “A trial court’s denial of a motion for a 

mistrial will not be reversed absent an abuse of discretion.” State 

v. Wach, 2001 UT 35, ¶ 45, 24 P.3d 948.

ANALYSIS

I. Counsel Was Not Ineffective for Not Objecting to the 

Defense-of-Others Jury Instruction.

¶16 Dominguez first argues that his counsel was ineffective 

for failing to request jury instructions—or at least better 

placement of jury instructions—that would explicitly link the 

defense-of-others affirmative defense to the aggravated burglary 

charge. To prevail on grounds of ineffective assistance of 

counsel, a defendant must demonstrate, first, “that counsel’s 

performance was deficient, in that it fell below an objective 
State v. Dominguez

20170618-CA 8 2019 UT App 116

standard of reasonable professional judgment” and, second, 

“that counsel’s deficient performance was prejudicial—i.e., that 

it affected the outcome of the case.” State v. Litherland, 2000 UT 

76, ¶ 19, 12 P.3d 92 (citing Strickland v. Washington, 466 U.S. 668, 

687–88 (1984)).

¶17 “It is fundamental that the State carries the burden of 

proving beyond a reasonable doubt each element of an offense, 

including the absence of an affirmative defense once the defense 

is put into issue.” State v. Low, 2008 UT 58, ¶ 45, 192 P.3d 867

(quotation simplified). Nevertheless, we have previously 

rejected the argument that the State’s burden to disprove an 

affirmative defense must be incorporated into the elements 

instruction as opposed to being listed in a separate instruction.3

See State v. Painter, 2014 UT App 272, ¶¶ 7–8, 339 P.3d 107; State 

v. Lee, 2014 UT App 4, ¶ 24, 318 P.3d 1164.

¶18 Dominguez asserts that this case is distinguishable from 

Painter and Lee because this case involves multiple defendants 

charged with different combinations of crimes. In Lee, although 

 

3. There is conflicting precedent from our supreme court on the 

question of whether the lack of an affirmative defense should be 

considered an element of the crime. See State v. Painter, 2014 UT 

App 272, ¶ 8 n.2, 339 P.3d 107 (comparing our supreme court’s 

conflicting holdings in State v. Knoll, 712 P.2d 211 (Utah 1985), 

and State v. Low, 2008 UT 58, 192 P.3d 867). Regardless of the 

answer to this question, however, jury instructions are to be read 

together to assess whether the jury was properly instructed, see 

id., and “all of the elements of the charged crime” need not 

“necessarily be contained in one instruction,” State v. Laine, 618 

P.2d 33, 35 (Utah 1980). Thus, our ultimate inquiry concerns 

whether the jury instructions “taken as a whole” adequately 

instructed the jury. See State v. Lee, 2014 UT App 4, ¶ 23, 318 P.3d 

1164 (quotation simplified).
State v. Dominguez

20170618-CA 9 2019 UT App 116

the defendant was charged with several crimes, the separate selfdefense instruction specifically linked the affirmative defense to 

the murder charge and lesser-included manslaughter charge. See 

Lee, 2014 UT App 4, ¶¶ 1, 24. And in Painter, the defendant was 

charged with only one crime—aggravated assault—so there was 

no danger of the jury confusing which crime the affirmative 

defense applied to. See Painter, 2014 UT App 272, ¶¶ 3, 9.

¶19 Here, there is no language explicitly linking the defenseof-others instruction to the aggravated burglary charge. The 

instruction simply informs the jury of the legal standard for a 

defense-of-others affirmative defense as well as the State’s 

burden of proof with respect to that defense. Dominguez claims

that the instruction’s failure to explicitly link defense of others to

the aggravated burglary charge left the jury with no information 

as to how to apply the defense. He further asserts that defense of 

others does not intuitively apply to the elements of burglary and 

that there was therefore a danger that the jury would apply the 

defense to one of the other charges—aggravated robbery or

assault—and not believe that defense of others is a defense to 

aggravated burglary.

¶20 In reviewing the adequacy of jury instructions, “we look 

at the jury instructions in their entirety and will affirm when the 

instructions taken as a whole fairly instruct the jury on the law 

applicable to the case.” Lee, 2014 UT App 4, ¶ 23 (quotation 

simplified). We must also “consider a reasonable jury’s

understanding in the context of the jury instructions and the 

record as a whole.” State v. Crowley, 2014 UT App 33, ¶ 13, 320 

P.3d 677 (quotation simplified). “Even if one or more of the 

instructions, standing alone, are not as full or accurate as they 

might have been, counsel is not deficient in approving the 

instructions as long as the trial court’s instructions constituted a 

correct statement of the law.” Lee, 2014 UT App 4, ¶ 23 

(quotation simplified).
State v. Dominguez

20170618-CA 10 2019 UT App 116

¶21 There is no dispute that the defense-of-others instruction 

accurately instructed the jury regarding the applicable law, 

including the State’s burden to disprove the defense beyond a 

reasonable doubt. Additionally, as in Lee, the jury was instructed 

that “[a]ll the instructions are important,” to “consider them as a 

whole,” and that the “order in which [they] are given” had no 

bearing on their importance. Cf. id. ¶ 25. While the defense-ofothers instruction was given in the context of multiple charges 

without specifying the charge to which it applied, we have no 

basis for concluding that the jury would have interpreted this 

lack of specificity to mean that the defense did not apply to the 

aggravated burglary charge. Rather, the lack of language linking 

the instruction to a specific charge would most logically have 

been read as an instruction that the State was required to 

disprove defense of others with respect to all of the charges, 

including aggravated burglary.

¶22 Further, even assuming, as Dominguez asserts, that

defense of others is not intuitively linked to an aggravated 

burglary charge, the link was apparent in the context of this case. 

Indeed, as in Lee, this affirmative defense was “the central theme 

of [Dominguez’s] defense at trial.” See id. The entire trial focused 

on the question of the defendants’ motivation for entering 

Victim’s room—was it for the purpose of protecting two women 

trapped in the room with Victim, or was it for the purpose of

continuing to assault Victim? If there was any question as to the 

applicability of defense of others to the aggravated burglary 

charges, it was cleared up by the codefendants’ counsel in 

closing arguments, each of whom clearly argued that their 

clients should be acquitted of aggravated burglary based on 

defense of others. Dominguez’s counsel stated,

So if that’s the purpose of their breaking down the 

door and going in there . . . it’s a defense of 

others. . . . They had a right to defend those young 

ladies. They did what they should have done.
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20170618-CA 11 2019 UT App 116

. . . .

. . . . [I]n order to find . . . any of the [defendants] 

guilty of the aggravated burglary, . . . the 

prosecution has to prove beyond a reasonable 

doubt that the intent when they broke in that door 

was to assault, and not to save these girls.

. . . .

So at the end of the day I’m asking you to find 

[Dominguez] not guilty of aggravated burglary.

Duran’s counsel likewise explained that it was “right” for the 

defendants to “break down the door to come to the aid of” 

the two women, and J. Martinez’s counsel explained that 

the defendants entered the room for the purpose of “get[ting] 

the gals out.” Finally, D. Martinez’s attorney explicitly linked 

the defense-of-others instruction to the aggravated burglary 

charge:

Instruction No. 60 is . . . about defense of self or 

others. . . .

Just be clear that we’re not talking about these 

four individuals defending themselves against 

[Victim]. We’re talking about them going into the 

bedroom to defend the two ladies from [Victim],

okay?

. . . .

So that’s what this instruction has to do with. . . .

. . . . [T]his instruction talks about the bedroom and 

the girls in there.
State v. Dominguez

20170618-CA 12 2019 UT App 116

Thus, “defense counsel’s arguments ma[d]e it abundantly clear” 

that defense of others applied to the aggravated burglary 

charges. See State v. Lambdin, 2017 UT 46, ¶ 48, 424 P.3d 117.

¶23 In context, there is not “a reasonable likelihood that the 

jurors were misled or confused as to the correct legal standard.” 

See id. ¶ 47. Thus, counsel did not perform deficiently by not 

objecting to the instructions as written.4

II. Remand Under Rule 23B of the Utah Rules of Appellate

Procedure Is Not Appropriate, Because Dominguez’s Proffered 

Facts Cannot Support a Determination That Counsel 

Was Ineffective.

¶24 Dominguez next asserts that counsel was ineffective 

because he incorrectly quoted Witness’s police statement when 

impeaching Witness. Because the record does not contain the 

purportedly “accurate” version of the police statement, we are 

unable to fully review Dominguez’s claim on appeal. See State v. 

Griffin, 2015 UT 18, ¶ 16, 441 P.3d 1166 (“[A] defendant cannot 

bring an ineffective assistance of counsel claim on appeal 

without pointing to specific instances in the record 

demonstrating both counsel’s deficient performance and the 

prejudice it caused the defendant.”).

¶25 In light of the inadequate record, Dominguez has 

asked that we remand this case to the trial court under rule 

23B of the Utah Rules of Appellate Procedure “for entry 

of findings of fact, necessary for . . . determination of a claim 

 

4. We also find it noteworthy that not one, but four separate 

defense attorneys, representing four separate clients, approved 

the instructions as written. While not dispositive, this bolsters 

our conclusion that, in context, the applicability of the defenseof-others instruction to the aggravated burglary charges was 

clear to the jury.
State v. Dominguez

20170618-CA 13 2019 UT App 116

of ineffective assistance of counsel” on appeal. See Utah R. 

App. P. 23B(a). To obtain such a remand, Dominguez must 

make “a nonspeculative allegation of facts, not fully appearing 

in the record on appeal, which, if true, could support a 

determination that counsel was ineffective.” Id. The State 

opposes Dominguez’s motion, asserting that the additional 

facts were insufficient to support a determination that 

counsel was ineffective, because the complete quoted 

statement would have done little more to undermine Witness’s 

testimony than counsel’s paraphrase at trial of her police 

statement.5

 

5. The State also asserts that the jury was likely to have convicted 

the defendants of aggravated burglary based on their 

“remaining” in the room, regardless of its determination as to

the purpose of the defendants’ initial entry into the room. We are 

not persuaded by this assertion. Although the jury was 

instructed that an element of the crime was whether the 

defendant “[e]ntered or remained unlawfully in a building, or any 

separately secured or occupied portion of a building,” (emphasis 

added), the State never articulated to the jury the theory it now 

asserts—that the defendants may have abandoned their action of 

defending others when they remained in the room to assault 

Victim after discovering that the women were unharmed. While 

this is a viable theory of the case, the fact that it was not 

explained to the jury gives us pause in concluding, as the State 

urges, that the jury was likely to have convicted the defendants of 

aggravated burglary on a “remaining” theory even if it believed 

that the defendants initially entered the room to defend the 

women. We ultimately need not address this question, however, 

because we agree with the State that the subtle variation 

between the quoted language of Witness’s police statement and 

the paraphrased language was not significant enough to have 

prejudiced the defense.
State v. Dominguez

20170618-CA 14 2019 UT App 116

¶26 Apart from Victim, Witness was the only person to 

definitively testify at trial that the women were not in the room 

when the defendants broke down the door. She testified that the 

two women were in the bedroom when the fight initially broke 

out in the hallway but that they came out of the bedroom when 

“the defendants were fighting” and were no longer in the 

bedroom when Victim locked himself in. At trial, defense 

counsel attempted to undermine Witness’s credibility on this 

point by confronting her with a prior statement she made to 

police in which she appeared to be stating that the women were 

in the room when the defendants broke in. On crossexamination, defense counsel asked Witness whether she had 

previously told police, “The girls were in the back bedroom and 

ran out when the boys went in the bedroom” (the paraphrased 

statement). Witness did not deny making the statement but 

pointed out that while she had stated that the girls “ran out,” she 

did not “specify where from.” She then clarified, “What I meant 

by ‘running out,’ is running out of the apartment.”

¶27 In the affidavit supporting his rule 23B motion, 

Dominguez’s counsel averred that she had listened to the audio 

recording of Witness’s police statement and that Witness

actually stated, “They were in the back of the bedroom, and then 

once the boys all got in the bedroom, the girls ran out and went 

out probably to the car, I’m guessing” (the recorded statement).

In his rule 23B motion, Dominguez asserts that had counsel 

confronted Witness with the recorded statement, the jury would 

have been more likely to discount her testimony.

¶28 Dominguez argues that the statement that “the girls ran 

out and went out probably to the car,” identifies two instances of 

leaving such that had the jury been presented with the actual

recorded statement, it would have had no choice but to conclude 

that the first instance—“the girls ran out”—described their 

running out of the bedroom while the second instance—the girls 

“went out”—described their leaving the apartment. Because the 
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20170618-CA 15 2019 UT App 116

paraphrased statement described only one instance of leaving—

the girls “ran out”—Dominguez maintains that the jury was 

more likely to accept Witness’s explanation that she meant that 

the girls “ran out” of the apartment than it would have been had 

it been confronted with the recorded statement. He also asserts 

that the phrase “in the back of the bedroom,” used in the 

recording, undermines Witness’s explanation more than the 

phrase “in the back bedroom,” as paraphrased by defense 

counsel at trial, because being in the back of the bedroom as 

opposed to simply being in the bedroom “supports more fully 

the testimony that the women were stuck in the bedroom with 

[Victim] and were afraid of him—they were in the back of the 

bedroom to get as far away from [Victim] as they could.” Finally, 

he asserts that the recorded statement, “once the boys all got in 

the bedroom, the girls ran out,” is more supportive of the idea 

that the girls were in the bedroom when the defendants broke in 

than the paraphrase, “The girls were in the back bedroom and 

ran out when the boys went in the bedroom.”

¶29 We agree with the State that the distinctions drawn by 

Dominguez between the recorded statement and the 

paraphrased statement are too subtle to have likely impacted the 

outcome of the trial. The jury was required to rely on its memory 

as to the precise wording of the statement6 and was unlikely to 

have recalled this language so vividly that it would have parsed 

 

6. While Dominguez did not raise this argument, his

codefendants initially asserted in the appeals of their convictions 

that trial counsel also erred in failing to seek the admission of the 

recording into evidence so that the jury could review the 

recording during deliberations. However, they ultimately 

abandoned that claim, conceding that “the audio clip would not 

have been allowed into the jury deliberation room because it was 

testimonial evidence.” (Citing State v. Cruz, 2016 UT App 234, 

¶¶ 36–41, 387 P.3d 618.)
State v. Dominguez

20170618-CA 16 2019 UT App 116

the individual phrases in the way that appellate counsel has 

done. And even if it had done so, the recorded statement is still 

ambiguous, just as the paraphrased statement was. Neither 

statement explicitly states whether the women “ran out” of the 

bedroom or whether they “ran out” of the apartment. There is no 

reason to believe that Witness would have responded any 

differently if confronted with the recorded statement than she 

did when confronted with the paraphrased statement. That is, 

she still would have offered her explanation that she meant that 

the women left the apartment when the defendants broke down 

the door, not that they left the bedroom, and the jury would 

have been left to determine which explanation it believed. We 

are not convinced that the jury was likely to have found Witness

measurably less credible had it been presented with the recorded 

statement rather than the paraphrased statement.

III. The Trial Court Did Not Err in Denying Dominguez’s Motion 

for Mistrial, Because Officer’s Reference to Dominguez’s 

Mug Shot Was Harmless.

¶30 Finally, Dominguez asserts that the trial court erred in 

denying his motion for mistrial because he was unfairly 

prejudiced by Officer’s reference to his mug shot. The State does 

not contest Dominguez’s assertion that Officer’s statement was 

improper but argues that it is not reversible error because “a

mistrial is not required where an improper statement is not 

intentionally elicited, is made in passing, and is relatively 

innocuous in light of all the testimony presented.” State v. Allen, 

2005 UT 11, ¶ 40, 108 P.3d 730.

¶31 Here, Officer indicated that he had identified Dominguez 

“through his mug shot that we have on file,” in response to the 

prosecutor’s question, “[D]id you run Julio Dominguez’s history 

and access his driver’s license photograph?” Dominguez asserts 

that the prosecutor’s reference to running his “history” is 

equivalent to the prosecutor asking about his criminal history 
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20170618-CA 17 2019 UT App 116

and that the prosecutor therefore “elicited” the improper 

testimony. We disagree. The question about running 

Dominguez’s history was explicitly linked to Officer accessing 

his driver license photo as a means of identification. Thus, the 

question is more properly interpreted as a reference to 

Dominguez’s driving history than a reference to his criminal 

history. Further, the single reference to the mug shot in the 

course of a three-day trial was innocuous, the discussion 

regarding Dominguez’s objection was held off the record, and 

the prosecutor quickly moved on to different topics. See State v. 

Butterfield, 2001 UT 59, ¶¶ 45, 47, 27 P.3d 1133 (upholding a 

denial of a motion for mistrial based on an officer’s statement 

that he had obtained a photograph of the defendant “that was 

used in the photo array from the ‘Salt Lake County Jail’” because 

the court considered the reference to be a “‘vague,’ ‘fleeting’

remark that was not elicited by the prosecutor”); see also 

Allen, 2005 UT 11, ¶ 40; State v. Wach, 2001 UT 35, ¶ 46, 24 P.3d 

948.

¶32 Further, even if we were to agree with Dominguez that 

the reference to his mug shot was so serious as to warrant a 

mistrial under normal circumstances, it ultimately did not 

warrant a mistrial under the circumstances of this case, because 

after Dominguez decided to testify,7 the State was permitted to 

impeach his testimony by asking him whether he had previously 

been convicted of a third-degree felony and two second-degree 

felonies. The fact that the jury was explicitly informed of 

Dominguez’s criminal history obviated any likelihood that

Officer’s erroneous reference to Dominguez’s mug shot affected 

the outcome of the trial.

 

7. There is nothing in the record indicating that Dominguez’s 

decision to take the stand and open himself to being impeached 

based upon his criminal history was somehow influenced by 

Officer’s earlier reference to his mug shot.
State v. Dominguez

20170618-CA 18 2019 UT App 116

CONCLUSION

¶33 We conclude that counsel did not perform deficiently by 

not requesting a jury instruction explicitly linking the defenseof-others instruction to the aggravated burglary charge. Further, 

Dominguez has failed to show that remand under rule 23B of the 

Utah Rules of Appellate Procedure has the potential to establish 

facts that could support a determination that counsel was 

ineffective for using the paraphrased statement rather than the 

recorded statement to impeach Witness. Finally, because 

Dominguez’s criminal record was admitted as impeachment 

evidence, the trial court did not exceed its discretion in denying 

his motion for mistrial based on Officer’s innocuous reference to 

Dominguez’s mug shot.8 Accordingly, we deny Dominguez’s 

request for rule 23B remand and affirm his conviction.

 

8. On appeal, Dominguez also asked us to reverse on grounds of 

cumulative error. But because we discern no error with respect 

to the defense-of-others jury instruction or the trial court’s denial 

of Dominguez’s motion for mistrial, Dominguez cannot establish 

cumulative error. See State v. Jones, 2015 UT 19, ¶ 74, 345 P.3d 

1195 (“If 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 will not be applied.” (quotation simplified)).