2021 UT App 66

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

BOBBY FIEDEL ARCHULETA,

Appellant.

Opinion

No. 20190871-CA

Filed June 24, 2021

Third District Court, Salt Lake Department

The Honorable Elizabeth A. Hruby-Mills

No. 171909463

Herschel Bullen, Attorney for Appellant

Sean D. Reyes and Nathan H. Jack, Attorneys

for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGE JILL M. POHLMAN concurred. JUDGE GREGORY K. ORME

concurred, with opinion.

MORTENSEN, Judge:

¶1 Bobby Fiedel Archuleta, triggered to road rage by an 

alleged horn honk, chased down the other car, and, after arguing 

with the motorist, pulled out a gun and shot at the motorist

before turning and speeding away. A jury later convicted 

Archuleta on two counts of aggravated assault, one count of 

possession or use of a dangerous weapon by a restricted person, 

one count of discharge of a firearm, and one count of theft by 

receiving stolen property. Archuleta appeals, citing issues with 

the evidence and jury instructions. We affirm.
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BACKGROUND1

¶2 Around 4:00 p.m. one late-summer afternoon, while 

cruising down a Salt Lake City highway, a motorist (A.D.) 

watched and listened for several blocks as a black sports car 

followed him, the driver honking and yelling at him. The driver

had apparently been enraged after perceiving that A.D. had 

honked at him. Soon, through his rear-view and side-view 

mirrors, A.D. saw the driver catch up and pull alongside him.

¶3 The driver confronted A.D., yelling, “Do you want to get 

popped?” A.D. noticed a “black male passenger” (Passenger) in 

the passenger’s seat of the driver’s car, but Passenger did not say 

anything. Ultimately, A.D. ignored the driver and, as the light 

changed, kept driving. As A.D. continued to watch, the driver

pulled behind him and kept following.

¶4 Further down the road, the driver again pulled near A.D.,

who had stopped at another light. And, once more, the driver

threatened to shoot A.D. Thinking that the driver did not

actually have a gun, A.D. yelled back, “Well, if you’re going to 

pop, then pop.” And, “Shoot the gun. Shoot the gun. Shoot it. 

Shoot it. Don’t be just threatening me with a gun. Shoot it.” As 

the light changed and A.D. began to pull forward, the driver

sped up, raised a black gun, and shot in A.D.’s direction while 

turning right. The bullet tore through the passenger’s door, 

nearly hitting A.D.’s four-year-old son, and lodged in the 

passenger’s seat, where the seat frame stopped the bullet from 

hitting A.D. The bullet left three holes: one entrance hole in the 

 

1. “On appeal, 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.” Layton City v. Carr, 2014 UT App 227, ¶ 2 n.2, 336 P.3d

587 (cleaned up).
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car door’s exterior, one exit hole in the car door’s interior, and 

one entrance hole into the seat—“all consistent with one round.”

¶5 A.D. called 911 to report the shooting and pursued the 

fleeing driver until the 911 dispatcher persuaded him to stop. 

During that phone call, A.D. described the driver as “a Hispanic 

man with tattoos—including a star tattoo on his face—wearing a 

turquoise shirt, a black baseball hat with turquoise on it, and 

prescription glasses.” He further reported that the driver drove a 

“black Charger or Challenger” and that a “black male 

passenger” was riding in the passenger’s seat.

¶6 Police, seeking the driver’s identity, soon identified 

Archuleta as a suspect and began surveilling his apartment

within a few hours of the shooting. After only a few minutes,

Archuleta arrived—driving a black Dodge Challenger with a 

black male in the passenger’s seat. Archuleta had a star tattoo 

under his left eye and wore a turquoise shirt, a black baseball hat 

with turquoise on it, and prescription glasses.

¶7 On searching Archuleta’s car, police found a stolen gun

one round short of full capacity. Although officers found no 

casing in Archuleta’s car, the Salt Lake Police Crime Lab’s 

director examined the slug found in A.D.’s car to determine if it 

was fired by the gun recovered from Archuleta’s car. The 

director testified that he was “100 percent sure” that the “bullet 

recovered from [A.D.’s car] match[ed] the gun that was 

recovered from Bobby Archuleta’s car.”

¶8 Archuleta denied being in a road rage incident and 

claimed he was in Roy, not Salt Lake City, during the incident—

a claim identified at trial as an irreconcilable geographical 

discrepancy. But an investigator familiar with cell phone 

mapping technology testified that between 3:52 p.m. and 4:35 

p.m. on the day of the shooting, Archuleta’s cell phone data

suggested he was somewhere between 3300 South in Salt Lake

City and Bountiful—a set of possible coordinates that did not
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preclude him from being present at the shooting’s time and 

place. The investigator testified that “[b]ased on [the cell phone 

data] before and after [the shooting] and considering travel time, 

it’s literally physically impossible for the phone to” “have been 

in Roy at that time.”

¶9 Archuleta contests none of these facts. Instead, he 

emphasizes the following. When police first apprehended 

Archuleta, an officer also interviewed Passenger. Passenger

initially claimed he was not near the area when the shooting 

happened. However, when police found the gun, Passenger

changed his story, describing a car pulling up to Archuleta’s car

and that driver threatening to shoot them. Passenger claimed 

that when the driver of the other car raised his hand, Passenger

ducked down before hearing a loud gunshot. Throughout this 

interview, he “repeatedly told police they already knew what 

happened and had the evidence.” At trial, the State submitted 

the police report describing Passenger’s statement to imply 

Archuleta’s guilt based on the fact that Archuleta later called 

Passenger a “rat” when speaking with his wife (Wife). And for 

the limited purpose of providing context for Archuleta’s later 

statements to Wife, the trial court allowed Passenger’s statement.

¶10 Further, at trial, the court admitted, over Archuleta’s 

objection, various jail phone calls between Archuleta and Wife.2

These calls began with an automated recording stating, “This 

call can be recorded and subject to monitoring at any time.” As 

played and recited for the jury, the calls’ content included:

 

2. When the State played the calls for the jury, the court reporter 

recorded most of these calls’ content as “inaudible.” But, during 

closing argument, the State reviewed the calls again and clarified 

much of the content. We use both sources to construct this 

narrative.
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20190871-CA 5 2021 UT App 66

• Archuleta’s statement: “I can’t blame no one else for my 

situation but myself.”

• The exchange between Archuleta and Wife: Wife said,

“You did this for no reason.” Archuleta responded, “I 

know.”

• Wife’s statement: “Well, if you want to hang out with 

losers and act fucking crazy.”

• Archuleta’s statement: “I don’t see how they’re going 

to make these fucking aggravated assaults and shit 

stick though because nobody was hit or nothing like 

that.”

• The exchange between Archuleta and Wife: Wife said, “So 

did [Passenger] tell on you?” Archuleta responded,

“Yeah.”

• Archuleta’s statement: “[Passenger]’s a rat. [Passenger] 

told on me.”

• Archuleta’s instruction: “[T]ell him [Passenger]’s a rat.”

• The exchange between Archuleta and Wife: Wife said,

“He said in fairness that it was found in your car.” 

Archuleta responded, “Yeah.” Wife continued, “You 

have a gun, which is (inaudible).” Archuleta then said,

“It’s not my gun. Listen, (inaudible).” Wife then asked,

“How are you going to fight that?” And Archuleta 

answered, “Because listen, there’s no DNA. There’s no 

prints on the gun.”

• Archuleta’s statement: “Well, if the victim changes his 

mind and doesn’t testify, they’ve got no case.”
State v. Archuleta

20190871-CA 6 2021 UT App 66

• The exchange between Archuleta and Wife: Wife said, “I 

know, but you did this.” Archuleta responded, “Oh, I 

know I did.”

• Archuleta’s statement: “There’s no DNA, there’s no prints 

on the gun. Yeah, it was in my vehicle, but there was 

fucking two of us in that vehicle. And not only that, there 

was like a fucking good 30 minutes that they were 

(inaudible) vehicle, occupying my vehicle with me not in 

my vehicle.”

• The exchange between Archuleta and Wife: Wife said,

“You did this.” Archuleta responded, “You know I’m a 

fuck up.”

¶11 In admitting these statements, the trial court clarified:

And so jurors, be advised that on these calls, there 

will be conversations between [Wife] and . . . 

Archuleta. [Wife]’s statements are not offered for 

the truth of the matter asserted. They’re only 

offered to provide context to Mr. Archuleta’s 

statements. 

¶12 The jury convicted Archuleta on two counts of aggravated 

assault, one count of possession or use of a dangerous weapon 

by a restricted person, one count of discharge of a firearm, and 

one count of theft by receiving stolen property. Because

Archuleta had previously been convicted of a violent felony and

incarcerated at least twice before, the State sought to enhance the 

charges by designating Archuleta as a habitual violent offender. 

In a bifurcated proceeding the jury also found that Archuleta 

met the statutory definition of a habitual violent offender. The 

court then sentenced Archuleta to prison on each conviction. 

¶13 Archuleta appeals.
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20190871-CA 7 2021 UT App 66

ISSUES AND STANDARDS OF REVIEW

¶14 On appeal, Archuleta raises several issues. First, he 

contends that, over counsel’s objection, the trial court 

erroneously admitted evidence, including: (1) hearsay of an 

unavailable witness—Passenger—as a violation of his 

constitutional right of confronting the witnesses against 

him, and (2) allegedly incoherent, unreliable, and

constitutionally privileged jail phone calls between him 

and Wife that also constituted hearsay in part. “With regard 

to the admission of evidence, . . . we review the legal 

questions to make the determination of admissibility for 

correctness. We review the questions of fact for clear error” and

“we review the trial court’s ruling on admissibility for abuse of 

discretion.” Arnold v. Grigsby, 2018 UT 14, ¶ 9, 417 P.3d 606 

(cleaned up). However, “we will reverse an erroneous 

evidentiary ruling only if, absent the error, there is a reasonable 

likelihood that there would have been a more favorable result 

for the defendant. A reasonable likelihood of a more favorable 

outcome exists when the appellate court’s confidence in the 

verdict actually reached is undermined.” State v. Kohl, 2000 UT 

35, ¶ 17, 999 P.2d 7 (cleaned up). Insofar as Archuleta contends 

these evidentiary concerns amount to constitutional errors, “an 

otherwise valid conviction should not be set aside if the 

reviewing court may confidently say, on the whole record, that 

the constitutional error was harmless beyond a reasonable 

doubt.” State v. Maestas, 2012 UT 46, ¶ 56, 299 P.3d 892 (cleaned 

up).

¶15 Second, Archuleta contends that the trial court allowed an 

inappropriate jury instruction regarding his possession of stolen 

property and failed to provide a “reasonable alternative 

hypothesis” jury instruction. “We review challenges to jury 

instructions under a correctness standard.” State v. Powell, 2007 

UT 9, ¶ 11, 154 P.3d 788 (cleaned up).
State v. Archuleta

20190871-CA 8 2021 UT App 66

¶16 Lastly, Archuleta contends the trial court abused its 

discretion by preventing him from offering testimony 

concerning his status as a habitual violent offender. As stated, 

regarding “the admission of evidence, . . . we review the legal 

questions to make the determination of admissibility for 

correctness. We review the questions of fact for clear error” and 

“we review the trial court’s ruling on admissibility for abuse of 

discretion.” Arnold, 2018 UT 14, ¶ 9 (cleaned up).

ANALYSIS

¶17 On review, we determine that even assuming Archuleta 

prevailed on his arguments—and the trial court had excluded 

Passenger’s interview and the jail calls—the remaining, 

uncontested evidence overwhelmingly points toward 

Archuleta’s guilt. Thus, any alleged errors, including alleged 

constitutional errors, worked no prejudice against Archuleta,

and we determine the alleged errors to be harmless beyond a 

reasonable doubt. We also conclude that the trial court 

correctly issued the jury instructions Archuleta now contests. 

Finally, we conclude the court did not exceed its discretion in 

excluding testimony that is simply irrelevant. Accordingly, we 

affirm.

I. Evidentiary Prejudice

¶18 Where, as here, an appellant contends evidence has been 

entered in constitutional error, we need not reverse if the State 

can meet its burden of showing that the “error is harmless 

beyond a reasonable doubt.” State v. Valdez, 2021 UT App 13, 

¶ 49, 482 P.3d 861 (quoting State v. Drommond, 2020 UT 50, ¶ 105, 

469 P.3d 1056), cert. granted, June 10, 2021 (No. 20210175). In 

other words, we must determine beyond a reasonable doubt that 

the error was harmless and that the jury still would have 

convicted Archuleta beyond a reasonable doubt had the 

evidence been excluded. This requires us to “determine the 
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probable impact of the [evidence] on the minds of the average 

juror.” See id. ¶ 50 (cleaned up). In so doing, we consider, among 

other things, the evidence’s importance and cumulative nature, 

and “the overall strength of the prosecution’s case.” See id.

(cleaned up). Here, without determining whether constitutional 

errors actually exist, we reject Archuleta’s evidentiary arguments 

because the State has persuaded us that any evidence entered in 

alleged error was harmless beyond a reasonable doubt. See 

Drommond, 2020 UT 50, ¶ 98 (declining to determine whether an 

error actually existed when “any error in [the] case was harmless 

beyond a reasonable doubt”).

A. Passenger’s Statement

¶19 At trial, the State offered evidence of Passenger’s 

statement to provide context for the statements Archuleta made 

about Passenger during the jail phone calls with Wife. The trial 

court allowed Passenger’s statement because it was “not being 

offered for the truth of the matter asserted but only to explain 

[Archuleta’s] subsequent statements. As such, the purported 

statement [was] not inadmissible hearsay.”

¶20 Archuleta contends that “the trial court erred in admitting 

the police report of [Passenger’s statement], an unavailable 

witness, on the basis that it was not hearsay” because the State 

could not reasonably have offered it for any other purpose 

except for its truth. On these grounds, Archuleta asserts that 

allowing Passenger’s statement violated his constitutional right 

to confront witnesses against him.3 Archuleta then declares the 

error “was highly prejudicial,” but fails to provide any 

explanation as to why. 

 

3. See U.S. Const. amend. VI (“In all criminal prosecutions, the 

accused shall enjoy the right . . . to be confronted with the 

witnesses against him; . . . .”).
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20190871-CA 10 2021 UT App 66

¶21 However, Passenger’s statement was of limited 

importance and cumulative of other evidence, and without it, 

the State’s case remained very strong. See Valdez, 2021 UT App 

13, ¶¶ 49–50. In short, the State has persuaded us that its 

inclusion was harmless beyond a reasonable doubt.

¶22 Taking the alleged error at its absolute worst, we see no

material impact to this case. In relevant part, Passenger’s 

interview included a vague indication that he “was afraid that 

retaliation for him talking would happen” and his view that 

police already knew what happened and had the evidence. 

Passenger also stated that a driver in a different car pulled up to 

them, threatened to shoot them, and raised his hand before 

Passenger ducked and heard a loud gunshot. The trial court 

instructed the jury that the police report containing Passenger’s 

statement could not be used “as proof of any of the crimes in this 

case” and that it could be used only “to give context to the 

statements” in the jail phone calls. But even if the jury took 

Passenger’s statement for the truth of the matter asserted, it does

not clearly further incriminate Archuleta, and it could even cut 

against the State’s case because it described circumstances 

exactly opposite of what A.D. described. While the State did use

Passenger’s statement—in concert with Archuleta’s own 

statements in the jail calls that Passenger was “a rat”—to imply 

Archuleta’s guilt, this inference was hardly the crux of the State’s 

case, and at its worst, carries little weight compared to the 

remaining overwhelming evidence of Archuleta’s guilt.

¶23 Taking the alleged error out of the equation, imagining a 

scenario where the court excluded the evidence, also does not

change our analysis. Indeed, doing so only highlights the State’s 

more important evidence. With or without Passenger’s 

statement, the jury could still consider that A.D. reported a 

shooting by “a Hispanic man with tattoos—including a star 

tattoo on his face—wearing a turquoise shirt, a black baseball hat 

with turquoise on it, and prescription glasses,” who had been 
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20190871-CA 11 2021 UT App 66

driving a “black Charger or Challenger” with a black male in the 

passenger’s seat. And when police located Archuleta, a Hispanic 

man with a star tattoo under his left eye, he wore a turquoise 

shirt, black baseball hat with turquoise on it, and prescription 

glasses. He was driving a black Dodge Challenger with a black 

male passenger. In that car, police found a handgun one round

short of full capacity, which police later determined fired the 

bullet found in A.D.’s car. And, to boot, Archuleta’s cell phone 

data placed him in the approximate area at the time of the 

shooting.

¶24 Without Passenger’s statements, the jury had not only 

ample but substantial evidence demonstrating Archuleta’s guilt

beyond a reasonable doubt. Indeed, the challenged evidence is 

hardly the State’s most important and is cumulative of the other 

evidence identifying Archuleta as the shooter. See id. Even 

without it, the State’s case remained very strong. Accordingly, 

the State has carried its burden to show that any error was 

harmless beyond a reasonable doubt.

B. Jail Phone Calls

¶25 Archuleta also contends that the court erred in admitting 

jail phone calls contrary to his objections that the calls violated

constitutional and evidentiary marital privilege,

4 constituted 

 

4. Specifically, Archuleta bases his argument on article I, section 

12 of the Utah Constitution, which provides that “a person shall 

not be compelled to testify against the person’s spouse.” Utah 

Const. art. I, § 12. “Utah courts have not determined whether the 

harmless-beyond-a-reasonable-doubt standard applies to 

violations of the Utah Constitution,” but “[w]e need not resolve 

that question here, because we conclude that admission of the 

challenged [evidence] was harmless even under the higher 

(continued...)
State v. Archuleta

20190871-CA 12 2021 UT App 66

hearsay in part, and violated Utah Rule of Evidence 403.5

Archuleta then asserts that the evidence was prejudicial because 

otherwise, the State would not have used it. Whether the jail 

calls’ admission was actually a constitutional error violating 

Archuleta’s rights under article I, section 12 of the Utah 

Constitution (or whether the jail phone calls were privileged at 

all) remains an issue we need not address here, because even 

assuming that it was, the State has convinced us that the error 

was harmless beyond a reasonable doubt.6 See generally Valdez, 

2021 UT App 13, ¶¶ 49–50.

¶26 Although the jail phone calls may have helped further 

confirm Archuleta’s identity as the shooter, the State did not 

even rely on the phone calls’ most damning contents to make 

this point in the first place. See supra ¶ 10. Instead, during closing 

argument, the State first focused on nearly all the other evidence 

identifying Archuleta as the shooter. And while the State may 

have used the jail phone calls to further incriminate Archuleta, 

the statements, “I can’t blame no one else for my situation but 

myself” and “[Passenger]’s a rat” merely cumulate, and hardly 

tip the scales on top of the remaining overwhelming, 

 

(...continued)

beyond-a-reasonable-doubt standard.” See State v. Gallegos, 2016 

UT App 172, ¶ 63, 380 P.3d 44.

5. Again, in admitting these statements, the court instructed the 

jury that the State did not present Wife’s statements in the jail 

phone calls “for the truth of the matter asserted,” but “to provide 

context to Mr. Archuleta’s statements.”

6. We note, however, that we recently discussed, but did not rule 

on, the merits of substantively similar arguments in State v. 

Samora, 2021 UT App 29, ¶¶ 38–40, 484 P.3d 1206, petition for cert. 

filed, May 19, 2021 (No. 20210347).
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20190871-CA 13 2021 UT App 66

uncontested evidence. Whether the court admitted the jail phone 

calls does not change the fact that Archuleta himself; his clothes,

tattoos, and glasses; his car; and his passenger all matched A.D.’s 

description exactly—not to mention that the gun found in his car 

matched the bullet found in A.D.’s car, and that cell phone data 

undermined his original statement to police by placing him in 

the shooting’s approximate area during the relevant time frame.

Given all of this overwhelming evidence of his identity, any 

error in admitting the jail phone calls was harmless beyond a 

reasonable doubt.

II. Jury Instruction Challenges

¶27 Archuleta also raises two challenges to the jury 

instructions, contending first, that the court improperly allowed 

an unconstitutional jury instruction, and second, that the court 

erroneously failed to include a reasonable-alternative-hypothesis 

jury instruction.7 We disagree.

 

7. Archuleta also contends that his trial counsel offered 

ineffective assistance and that the court plainly erred in allowing 

him to be convicted for theft by receiving stolen property even 

though the evidence failed to support the charge. To support 

these contentions, he offers some facts about the trial and recites 

the standard of review for ineffective assistance and plain error 

claims. But,

the Utah Rules of Appellate Procedure require an 

appellant’s brief to contain the contentions and 

reasons of the appellant with respect to the issues 

presented, with citations to the authorities, 

statutes, and parts of the record relied on. Briefs 

must contain reasoned analysis based upon 

relevant legal authority. An issue is inadequately 

briefed when the overall analysis of the issue is so 

(continued...)
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20190871-CA 14 2021 UT App 66

A. Jury Instruction 35

¶28 First, Archuleta argues that the court erred in allowing 

jury instruction number 35, which dealt with the offense of theft 

by receiving stolen property. At the time, that offense was set 

forth in Utah Code section 76-6-408(1), which in relevant part 

provides,

A person commits theft if he receives, retains, or 

disposes of the property of another knowing that it 

has been stolen, or believing that it probably has 

been stolen, or who conceals, sells, withholds or 

aids in concealing, selling, or withholding the 

property from the owner, knowing the property to 

be stolen, intending to deprive the owner of it.

Utah Code Ann. § 76-6-408(1) (LexisNexis 2017) (current version 

at id. § 76-6-408(2) (Supp. 2020)). The jury instruction on this 

charge stated,

Possession of property recently stolen, if not 

satisfactorily explained, is ordinarily a 

circumstance from which you may reasonably draw 

the inference and find, in light of the surrounding 

circumstances shown by the evidence in the case, 

that the person in possession of the stolen property 

knew that it was stolen.

 

(...continued)

lacking as to shift the burden of research and 

argument to the reviewing court. 

State v. Davie, 2011 UT App 380, ¶ 16, 264 P.3d 770 (cleaned up).

We conclude that to be the case here. Reciting a legal standard 

but failing to apply relevant facts, argue, or analyze, renders an 

issue inadequately briefed—as such, we decline to address these 

issues.
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Thus, if you find from the evidence and beyond 

a reasonable doubt (1) that the defendant was in 

possession of property, (2) that the property was 

stolen, (3) that such possession was not too remote 

in point of time from the theft, and (4) that no 

satisfactory explanation appears from the evidence, 

then you may infer from these facts and find that the 

defendant knew the property was stolen.

(Emphasis added.)

¶29 In attacking this instruction, Archuleta asserts that the 

instruction shifted the burden to him to explain his possessing 

the firearm and thus “directly contradicts [his] right against selfincrimination,” in part by impermissibly shifting the burden of 

proof from the State to him. But his argument overlooks what 

our caselaw has defined as the most important aspect of such 

instructions—namely, whether the instruction required the jury 

to make a presumption of guilt, as opposed to allowing the jury 

to make a presumption or inference of guilt. See State v. Carlson, 

934 P.2d 657, 659–60 (Utah Ct. App. 1997); State v. Perez, 924 P.2d 

1, 4–5 (Utah Ct. App. 1996).

¶30 Cases reviewing nearly identical jury instructions on this 

charge have upheld those convictions where the instruction 

“meant only that if the jury found certain facts that [the jury] 

may infer from those facts that the defendant committed the 

theft” and where “the instruction allowed only an inference of 

guilt, and then only if justified by the facts.” See id. at 4–5

(cleaned up) (citing State v. Smith, 726 P.2d 1232 (Utah 1986)). In 

other words, courts uphold such jury instructions when “the 

context of the instruction as a whole allow[s] only a permissible 

inference.” Id. at 5. We, therefore, review whether this 

instruction provides the jury with a mandatory inference or a 

permissive inference. Where “the instruction in this case does 

not differ from that in [other caselaw] in any material way, we 
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20190871-CA 16 2021 UT App 66

conclude that the instruction is constitutional and does not 

improperly shift the burden of proof to defendant.” See Carlson, 

934 P.2d at 660 (cleaned up). As Archuleta notes in his brief, the 

difference is semantic, but semantics matter—and the word 

“may” renders this instruction semantically permissive.

Therefore, because the instruction allowed the jury to make a

presumption of guilt, instead of requiring the jury to make a 

presumption of guilt, the court correctly submitted the 

instruction to the jury.

B. Reasonable-Alternative Hypothesis Instruction

¶31 Second, Archuleta contends that the court incorrectly 

failed to provide the jury with a reasonable-alternativehypothesis jury instruction based on the idea that the jury could 

have concluded that another person, such as Passenger, was the 

shooter. Citing this and similar various alternative theories,

Archuleta argues that the court should have provided the 

instruction simply because it is possible that one of these 

alternative theories could be true. Archuleta concedes that no 

caselaw required such an instruction in this case but suggests 

that such an instruction “[n]evertheless . . . is not inappropriate.”

¶32 We note that arguing that a trial court was not required to 

do something but nevertheless could have done it (even though 

it did not), unequivocally fails to present the kind of error that 

prevails on appeal. However, our supreme court has dispensed 

with this question:

In regard to the propriety of the so-called 

“reasonable alternative hypothesis” jury 

instruction, any controversy over its use constitutes 

nothing more than a tempest in a teapot. The 

prosecution’s burden of proof in any criminal case, 

whether the evidence be direct or circumstantial, or 

a combination of both, is that of beyond a 

reasonable doubt. . . . Thus, if the jury instructions 
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clearly informed the jury of the standard of 

proof beyond a reasonable doubt, no 

“reasonable alternative hypothesis” instruction 

was required. . . . During the process of 

determining that the evidence [meets] this high 

standard, the jurors necessarily exclude[] all 

“reasonable alternative hypotheses” . . . .

State v. Burton, 642 P.2d 716, 719 (Utah 1982) (cleaned up). 

Accordingly, where, as here, the court properly instructed the

jury regarding the standard—proof beyond a reasonable 

doubt—the court was not required to offer Archuleta’s proposed 

instruction and refusing to do so cannot have been incorrect.

¶33 Therefore, Archuleta fails on both contentions because the 

trial court properly submitted an instruction including an 

allowance for a permissive presumption and because the trial 

court was not required to include a reasonable-alternativehypothesis instruction.

III. Irrelevant Testimony

¶34 Following Archuleta’s conviction on the primary charges, 

the jury faced the issue of whether Archuleta met the statutory 

definition of a habitual violent offender. Archuleta does not 

identify any particular testimony he would have provided 

except to indicate he wanted to opine on whether he deserved to 

be found a habitual offender. On this issue, the trial court 

declined to allow him to testify because such testimony would 

have been irrelevant. Archuleta contends that because he was 

the defendant he gets to testify in the case. However, this is not 

how our rules of evidence work, and Archuleta fails to show 

how the trial court exceeded its discretion in excluding irrelevant 

testimony.

¶35 Utah Rule of Evidence 402 provides, “Irrelevant evidence 

is not admissible.” And evidence is irrelevant if it does not 
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“make a fact more or less probable than it would be without the 

evidence.” Id. R. 401. All the evidence required to show that a 

person is a habitual violent offender is that the person convicted 

of a violent felony must have “on at least two previous occasions

. . . been convicted of a violent felony and committed to either 

prison in Utah or an equivalent correctional institution of 

another state or of the United States.” Utah Code Ann. § 76-3-

203.5(b) (LexisNexis 2017). So, after a violent felony conviction

on the charge at hand, the only relevant evidence is whether the 

defendant had enough previous violent felony convictions also 

resulting in qualifying incarceration. Evidence unrelated to these 

questions would be entirely irrelevant to the question before the 

jury because it wouldn’t serve to make the elements more or less 

probable or have any “consequence in determining the action.”

See Utah R. Evid. 401. Archuleta’s proposed testimony would 

not touch on these questions—and indeed, his opinion on 

whether he deserved to be found a habitual offender represents 

testimony that would constitute the paradigm of irrelevancy.

Consequently, we conclude that the trial court was well within 

its discretion to refuse to admit irrelevant testimony.

CONCLUSION

¶36 On the record before us, (1) any alleged evidentiary error 

was harmless beyond a reasonable doubt, (2) the court did not 

err in the jury instructions it provided or did not provide, and (3) 

the court did not abuse its discretion in declining to admit

irrelevant testimony. 

¶37 Affirmed.

ORME, Judge (concurring):

¶38 I concur in the court’s opinion. I write separately to 

register my indignation at the intolerable increase in “road rage” 

incidents, now quite commonplace in our fair state. See, e.g., Pat 
State v. Archuleta

20190871-CA 19 2021 UT App 66

Reavy, 2 People Shot in I-15 Road Rage Incident; Troopers Say Such 

‘Mind-Blowing’ Cases on the Rise, Deseret News (Jan. 25, 2021)8 (in 

reporting on a road rage incident culminating in shots fired and 

the closing of I-15, article notes that “UHP troopers have 

reported a sharp increase in the number of road rage incidents in 

2020 from the year before”). This is the third road rage case our 

court has seen recently. See State v. Watson, 2021 UT App 37, 485 

P.3d 946; State v. Farnworth, 2018 UT App 23, 414 P.3d 1053. And 

obviously, this is just the tip of the iceberg. For every road rage 

case that results in conviction and appeal, there must be many 

more that are resolved in plea bargains or convictions that are 

not appealed and—of even more concern—yet more cases where 

a road warrior escapes identification and arrest or no report is 

made.

¶39 How did we end up like this, with so many of us deeming 

our right to travel in our lane of choice, at our speed of choice, 

without any interference whatsoever from other members of the 

traveling public, to be an inalienable right? When I was a boy, I 

remember my father regularly slowing down and waving a 

fellow driver over if it appeared that they needed to come into 

his lane of travel, perhaps so that an upcoming turn could be 

made or object in the road avoided. That driver would 

invariably offer a wave of appreciation. My father would wave 

back. He was not exceptional; this was the norm. Traveling 

down the highways and byways of Utah was not viewed as a 

substitute for warfare, but as more of a shared experience in 

civility. Now, if it appears that a driver wishes to come into our 

lane, many of us will speed up in an effort to prevent that 

 

8. https://www.deseret.com/utah/2021/1/25/22248578/two-shoton-i-15-prompting-freeway-closure-near-lehi [https://perma.cc/ 

673Q-84NL].
State v. Archuleta

20190871-CA 20 2021 UT App 66

maneuver.9 If the driver comes over anyway, we will be 

outraged at having been “cut off,” as though such a misstep is a 

threat to civilization as we know it, and the worst among us will 

reply with honking, flashing lights, swerving, unpleasant hand 

gestures, etc.

¶40 In a distressing number of cases, particularly outraged 

drivers will take it a step further and strike the offending 

driver’s car with their own vehicle or, of all things, open fire. See, 

e.g., Garna Mejia, Utah Woman, Children Terrorized in Road-Rage 

Incident on I-15, KSL.com (Apr. 11, 2021)10 (reporting that a man 

rammed a woman’s car two times with her young children 

inside, followed her for ten miles, and yelled “I’m going to kill 

you! I’m going to kill the kids! Get out, I will show you what’s 

up!”); Mark Shenefelt, Road Rage on I-15 in Roy: UHP Says Man 

Tried to Crash Another’s Car, Standard-Examiner (Dec. 21, 2020)11

 

9. This is apparently enough of a problem that the Utah 

Department of Transportation recently saw fit to post this 

message on its overhead freeway message boards: 

IT’S A LANE

NOT A BIRTHRIGHT

LET THEM MERGE

Reem Ikram, Utah’s Highway Message Boards: Who’s Behind it All 

and How to Get Involved, ABC4.com (Feb. 27, 2021), 

https://www.abc4.com/news/digital-exclusives/utahs-highwaymessage-boards-whos-behind-it-all-and-how-to-get-involved/

[https://perma.cc/5CDT-NMMA].

10. ksl.com/article/50144470/utah-woman-children-terrorized-inroad-rage-incident-on-i-15 [https://perma.cc/Q5XN-FKD9].

11. https://www.standard.net/police-fire/road-rage-on-i-15-inroy-uhp-says-man-tried-to-crash-anothers-car/article_31144733-

207a-5c21-b801-2485a6ff1495.html [https://perma.cc/PVF5-S3RV].
State v. Archuleta

20190871-CA 21 2021 UT App 66

(reporting that an enraged driver swerved between lanes and 

intentionally struck the victim’s vehicle, intending to cause it to 

crash); Mark Shenefelt, Man Arrested in Layton After Apparent 

Ogden Road Rage Shooting, Standard-Examiner (Aug. 19, 2019)12

(reporting that as the victim sped up to pass another vehicle to 

get onto an onramp to I-15, the driver being passed pointed a 

handgun at the victim, shouted obscenities, and fired a round at 

the vehicle). As ridiculous as this behavior is, it also sometimes 

happens that the driver who was flipped off, honked at, or 

brake-checked will note his disapproval by opening fire. See, e.g.,

Pat Reavy, Driver Arrested in Utah County Road Rage Incident 

Charged with Attempted Murder, Deseret News (Feb. 2, 2021)13

(reporting on an incident where a driver noted his disapproval 

of being followed too closely by hitting his brakes, whereupon 

the other driver pulled alongside the brake-tapper’s vehicle and 

fired multiple shots into the vehicle). This is enough of a 

possibility, it seems to me, that those among us who are inclined 

to flip the bird to note their disapproval of an attempted or 

accomplished cut-off or other perceived breach of driving 

etiquette should refrain from such behavior, if not out of basic 

decency, then out of a legitimate concern that the other driver 

might be armed and see this as the kind of provocation that 

warrants gunplay or running a car off the road.

¶41 There might be a tendency to think that those who engage 

in acts of road rage are limited to a comparative handful of 

low-lifes, and readers may wonder why I have bothered with 

 

12. https://www.standard.net/police-fire/man-arrested-in-laytonafter-apparent-ogden-road-rage-shooting/article_0f677c82-2da3-

57cd-8cc6-9a992d350fa6.html [https://perma.cc/8VGC-J8B4].

13. https://www.deseret.com/utah/2021/2/2/22262654/driver-arre

sted-in-utah-county-road-rage-incident-charged-with-attempted

-murder [https://perma.cc/Q7BW-H7XB].
State v. Archuleta

20190871-CA 22 2021 UT App 66

this separate opinion since so few members of that subset of 

humanity are regular readers of appellate opinions. I wish the 

propensity to behave badly when driving was so limited, but I 

fear that the attitude that is the genesis of road rage incidents 

cuts across all segments of our society. Two brief examples may 

help make the point that “we have met the enemy and it is us.”14

¶42 A member of my extended family does not come across as 

a low-life. She is financially well-off, well-groomed, 

conservatively attired, and a regular at Sunday morning church 

services. Her personal mantra is “What would Jesus do?” But 

when driving, she ignores this precept. And she is quite 

unapologetic about it. She is militantly proud of the fact that if 

anyone tries to cut her off or fails to move right when she comes 

up behind them in the fast lane, she will blare her horn with one 

hand while flipping the offending driver off with the other—a 

technique she is pleased to have mastered over the years.

¶43 A few years ago, as I was about to make the move from 

I-15 to I-80, a car flew past me on the right, pulled in front of me, 

and then slowed down so the driver could honk at, verbally 

berate, and flip off a driver now on our right, apparently for 

some perceived affront—very likely the dreaded cutting off. This 

“fast and furious” driver’s tirade went on for a few seconds and 

his pulling in front of me caused me to brake to avoid hitting 

 

14. While this basic phrase is often attributed to the cartoonist 

Walt Kelly, it has a much more interesting morphology. See 

generally Larry Bush, The Morphology of a Humorous Phrase: “We 

Have Met the Enemy and He Is Us,” Humor in America (May 19, 

2014), https://humorinamerica.wordpress.com/2014/05/19/themorphology-of-a-humorous-phrase/ [https://perma.cc/RF84-NC

G7].
State v. Archuleta

20190871-CA 23 2021 UT App 66

him.15 This allowed me to get a good look at him, and I grimaced 

when I realized that I knew him. He was a well-known member 

of the Bar, although in that moment hardly the model of civility 

to which we, as a profession, ostensibly aspire.

¶44 So while I would surely hope that readers of appellate 

opinions are not the leading contingent of road rage culprits, 

there are road ragers among us. For them, and for all their ilk in 

Utah, my message is simple: Stop it! If you are not inclined to 

stop it because it is the right thing to do, stop it because you risk 

being shot or run off the road if you do not.

 

15. If I were of a different temperament and had a different 

moral compass, I would have noted my disapproval of his 

cutting me off with horn-honking and bird-flipping, and then 

where would we have been?