This opinion is subject to revision before final

publication in the Pacific Reporter

2019 UT 36

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Appellee,

v.

LUCIANO GABRIEL SILVA,

Appellant.

No. 20161045

Filed July 23, 2019

On Direct Appeal

Second District, Weber County 

The Honorable Ernest W. Jones

No. 151901996

Attorneys:

Sean D. Reyes, Att’y Gen., Jeffrey D. Mann, Asst. Solic. Gen., Salt 

Lake City, Branden B. Miles, Letitia J. Toombs, Josh B. Wayment, 

Ogden, for appellee

Cherise Bacalski, Orem, Emily Adams, Bountiful, for appellant

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, 

in which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, 

and JUSTICE PETERSEN joined.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 Luciano Silva was convicted of murder after shooting and 

killing his roommate’s friend. He challenges his conviction on this 

appeal, asserting that the trial court committed reversible error when 

it (1) precluded him from arguing perfect self-defense and 

(2) refused to declare a mistrial after the prosecutor asked Silva to

demonstrate the shooting using a facsimile gun. We disagree. Any 

error the trial court committed when it refused to allow a claim of 

perfect self-defense was harmless. And though we are troubled by 

aspects of the demonstration directed by the prosecutor, we cannot 
STATE v. SILVA

Opinion of the Court

2

say that the trial court abused its discretion when it denied Silva’s 

motion for a mistrial. We therefore affirm the conviction. 

I

¶2 On the night of the shooting, Silva returned home to his 

trailer to find his roommate, Fabricio, with a friend, Horacio. Silva 

did not know Horacio. But he soon learned that Horacio was 

previously a member of the Norteño gang—the same gang Silva 

once belonged to. 

¶3 Silva offered to buy methamphetamine and share it with 

Fabricio and Horacio. He made a phone call and arranged for a drug 

delivery. While waiting for the delivery, Horacio listened to music 

by the Salineros, a group associated with the Norteños. Silva 

questioned Horacio about the music before going to his bedroom. 

There he mentioned to Fabricio that he was bothered by the music. 

And he cleaned some bullets for his gun—a gun that he had

purchased illegally, allegedly for protection from his former gang.

¶4 Silva eventually learned that the drug delivery had failed. 

Undeterred, he decided to walk to another seller’s home. Silva first 

asked Fabricio to accompany him. But Fabricio said he wasn’t

interested in going. So Silva asked Horacio to accompany him and 

he did. About ten to fifteen minutes later, Silva returned home alone 

without any drugs. He claimed that Horacio had left him at some 

point during the walk. 

¶5 The next morning, Horacio’s body was found with a 

gunshot wound to the back of the head. While police were trying to 

identify Horacio, Silva and Fabricio went to Walmart to buy some 

groceries. On the way there, Silva admitted to Fabricio that he had 

shot Horacio in the back of the head. And he explained that he shot 

him because he was listening to Norteño music. 

¶6 Police eventually identified Horacio using his cell phone. 

They also discovered a photo from Horacio’s Facebook account that 

showed the license plate of a vehicle registered to Silva’s address. So 

an officer was assigned to observe Silva’s trailer. 

¶7 Later that day, Silva left his trailer to go pick up his 

daughter. He was immediately approached by the police. They

asked if he knew Horacio, and at first he lied. But he eventually 

admitted he knew him but not well. And he agreed to go to the 

police station for further questioning. At the station, Silva again 

concealed the truth in his initial interactions with the police. But he 

eventually came clean. He told the police that he and Horacio were 

on their way to purchase drugs when Horacio discovered that he
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Opinion of the Court

3

was carrying a gun. He said that Horacio had asked him if he could 

hold the gun, that Silva had handed it over, and that Horacio had

then turned the gun on Silva and asked to see the money that Silva 

had brought to purchase drugs. Silva indicated that he had knocked 

the gun out of Horacio’s hand, pushed Horacio back, gained control 

of the gun, and fired a shot at the back of Horacio’s head. After 

shooting Horacio, Silva said he had thrown the gun into a nearby 

river and then went home and hid the clothes he was wearing under 

his bed. 

¶8 When asked about the details of the shooting, Silva admitted 

that he knew Horacio was facing away from him when he shot him 

and that Horacio was unarmed. But he stated that Horacio was 

turning towards him when he shot him. He also told police that he 

felt “comfortable” just before the shooting. And he acknowledged 

that instead of shooting Horacio he could have ran away or “pointed 

the gun at him and walked away.” 

¶9 The State charged Silva with first-degree murder, two counts 

of obstructing justice (for his efforts to hide the gun and his 

clothing), and one count of possession of a firearm by a restricted 

person (because Silva is an illegal alien). Before trial, the State moved 

pursuant to Utah Code section 76-2-402(2)(a)(ii) to preclude the jury 

from considering perfect or imperfect self-defense. That section 

prohibits a person from using force in self-defense if the person “is 

attempting to commit, committing, or fleeing after the commission 

or attempted commission of a felony.” UTAH CODE

§ 76-2-402(2)(a)(ii) (2017).

1 The State argued that the felonious 

conduct Silva was engaged in when he killed Horacio was 

(1) attempted possession of methamphetamine and (2) possession of 

a firearm by a restricted person. See id. §§ 58-37-8, 76-10-503(2)(a)

(2014) (defining respectively the crimes of possession of a controlled 

substance and possession of a firearm by a restricted person).

2 Silva 

__________________________________________________________

1 We cite the 2017 version of the statute, while noting that this 

section was amended in 2018, see UTAH CODE § 76-2-402(2)(a)(ii) 

(2018), because the incident giving rise to this case occurred in 

September 2015.

2 Section 58-37-8 was amended in 2015. Under the amended 

statute a first or second conviction of possession of a Schedule I or II 

controlled substance constitutes a class A misdemeanor. UTAH CODE

§ 58-37-8(2)(b)(ii) (2015). That amendment, however, did not take 

(continued . . .)
STATE v. SILVA

Opinion of the Court

4

conceded that he was an illegal alien in possession of a firearm. But

he argued that the statute as applied to him unconstitutionally 

infringed his right to self-defense. He also argued that the statute 

should not apply because he was not attempting to purchase drugs 

or fleeing from such an attempt when the shooting occurred. The 

trial court rejected both arguments. It ruled that the jury could not 

consider perfect self-defense because Silva was “involved in two 

felonies at the time of the homicide”—the two identified by the State. 

Yet “while [Silva] [was] not entitled to claim ‘perfect’ self-defense,” 

the court allowed him to argue “‘imperfect’ self-defense to the jury.” 

¶10 At trial, Silva largely retold the narrative he provided to the 

police. But his testimony varied in key ways. He testified that he felt 

scared, rather than comfortable, just before he shot Horacio. And he 

stated that he was not sure whether Horacio was facing towards or 

away from him when he shot him. He also testified that he thought 

Horacio may have had a weapon at the time he shot him, 

contradicting his prior statement. He maintained, however, that 

Horacio was turning towards him when he shot him. And he again 

conceded that he had other options besides shooting Horacio,

including throwing the gun out of Horacio’s reach or simply running 

away.

¶11 During cross-examination, the prosecutor gave Silva a 

“facsimile gun” and asked him to “demonstrate exactly how [he] 

was holding the gun when [he] shot Horacio.” The prosecutor then 

separated himself some distance from Silva, turned away from him, 

and asked him if he thought his life was in danger. Silva said no. The 

prosecutor repeated this question two more times while slowly 

turning towards Silva. And Silva reaffirmed both times that he did 

not feel in danger. Silva’s counsel interjected, noting “for the record” 

that the prosecutor “had his back turned and then he turned around 

forward and then held his hands up.” He also noted the differences 

between the courtroom setting and the setting of the shooting—

specifically that they were “in a courtroom . . . with bailiffs, et 

cetera.” During re-examination, Silva clarified that he did not feel in 

danger during the demonstration because he was in a courtroom; he 

misunderstood that the prosecutor was speaking of the night he 

killed Horacio.

 

effect until October 1, 2015, after the incident giving rise to this case. 

We accordingly refer to the 2014 version of the statute.
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Opinion of the Court

5

¶12 Following Silva’s testimony, his trial counsel moved for a 

mistrial. Counsel asserted that it was “horrendously prejudicial” for 

the jury to see the reenactment and a gun in Silva’s hand and that the 

demonstration should have been disallowed under Utah Rule of 

Evidence 403. The prosecutor responded that Silva’s “actions [were] 

central to the issues of this case.” He further argued that Silva never 

denied the fact that he had held a gun or killed Horacio. So “[t]he 

fact that he held a plastic gun in court in an effort to aid the jury in 

understanding what happened . . . was relevant and not prejudicial.”

The trial court agreed with the prosecutor. It denied the motion for a 

mistrial, stating that the demonstration was not “prejudicial at all” 

but was rather “central to the whole case.” The jury ultimately 

convicted Silva on all counts. He appealed the murder conviction to 

this court. We initially transferred the matter to the court of appeals 

but later vacated the transfer and recalled the appeal.

II

¶13 On appeal, Silva argues that the trial court committed two 

principal errors. He first asserts that the trial court erred when it 

prevented him from arguing perfect self-defense. Second, he asserts

that the court abused its discretion when it denied his motion for a 

mistrial based on the prosecutor’s gun demonstration. 

¶14 We disagree with Silva and thus affirm his conviction. Even 

if we assume that the trial court erred when it refused to offer the 

perfect self-defense instruction, such error was harmless because it 

didn’t result in prejudice to Silva. And though we find aspects of the 

prosecutor’s demonstration troubling, we affirm the trial court’s 

decision to deny Silva’s motion for a mistrial. Our decision is driven 

by the standard of review, the relevancy of the demonstration, the 

lack of record evidence, and the opportunities afforded defense 

counsel to clarify Silva’s testimony. We advise future attorneys, 

however, to proceed cautiously when considering the propriety of a 

demonstration like the one here. Requiring a criminal defendant to 

hold a facsimile gun is not per se a violation of rule 403 of the Utah 

Rules of Evidence. But such a demonstration certainly has the 

potential to run afoul of that rule and to trigger a mistrial. 

A

¶15 Silva first asserts that the trial court erred in precluding him 

from arguing perfect self-defense at trial. The governing statute is 

Utah Code section 76-2-402(2)(a)(ii). That statute prohibits a person 

from using force in self-defense if the person “is attempting to 

commit, committing, or fleeing after the commission or attempted 
STATE v. SILVA

Opinion of the Court

6

commission of a felony.” UTAH CODE § 76-2-402(2)(a)(ii) (2017). The 

trial court refused to instruct the jury on perfect self-defense on the 

ground that Silva was engaged in two felonious acts at the time he 

killed Horacio—attempted possession of methamphetamine under 

Utah Code section 58-37-8 and possession of a firearm by a restricted 

person under Utah Code section 76-10-503(2)(a). 

¶16 Silva challenges the trial court’s refusal to give a perfect 

self-defense instruction on three grounds: (1) the statute infringes his 

constitutional right to equal protection by foreclosing an allegedly 

fundamental right of self-defense for illegal aliens without an 

adequate justification; (2) there was insufficient evidence that Silva 

was attempting to purchase drugs at the time of the shooting; and 

(3) his trial counsel was ineffective in failing to argue that it would 

be absurd to interpret the statute to foreclose a right of self-defense 

even when there is no connection between the underlying felony and 

the act of self-defense.

¶17 These claims are not insubstantial. First, Silva plausibly 

asserts that the right of self-defense is “fundamental” and raises 

serious questions about the sufficiency of the government’s 

justification for foreclosing that right for illegal aliens. On the second 

point, Silva raises significant questions about the nature of the 

alleged “attempt” to purchase drugs, and whether he was in the 

course of committing such a crime when the shooting occurred. And 

the third point implicates an important question about the 

appropriate standard for assessing ineffective assistance of counsel 

claims under Strickland v. Washington, 466 U.S. 668 (1984).

¶18 Silva’s ineffective assistance of counsel claim focuses on his 

trial counsel’s failure to seek to limit the reach of Utah Code 

section 76-2-402(2)(a)(ii) on the basis of the doctrine of absurdity. In 

Silva’s view, trial counsel was ineffective in failing to assert that it 

would be absurd to extend the statutory bar to the use of force in 

self-defense where there is no causal connection between the 

underlying felony and the self-defense statute.3 The State, for its part, 

__________________________________________________________

3 The statute was amended in 2018 to require such a causal 

connection. A criminal defendant is now permitted to argue perfect 

self-defense where “the use of force is a reasonable response to 

factors unrelated to the commission, attempted commission, or 

fleeing after the commission of th[e] felony.” UTAH CODE

§ 76-2-402(3)(a)(ii).
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Opinion of the Court

7

defends the conduct of trial counsel on the ground that there was no 

controlling case law in effect at the time of trial that would have 

dictated the argument under the doctrine of absurdity. And the State 

cites cases from our court and the court of appeals that suggest that 

counsel’s representation must be judged by reference only to settled 

law in effect at the time of trial.4 Silva responds by challenging the 

viability of this line of cases, and noting that they are inconsistent 

with binding precedent from the United States Supreme Court.

¶19 We take Silva’s point. A showing of ineffective assistance of 

counsel requires proof (1) that trial counsel’s representation “fell 

below an objective standard of reasonableness” and (2) that “the 

deficient performance prejudiced the defense.” Strickland, 466 U.S. at

687–88. This analysis is conducted under “the presumption that . . . 

the challenged action ‘might be considered sound trial strategy.’” Id.

at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). But the 

United States Supreme Court has never said that trial counsel is 

categorically excused from failure to raise an argument not 

supported by existing legal precedent. In fact, the Court has said just 

the opposite. In Padilla v. Kentucky, 559 U.S. 356 (2010), the Court

held that an attorney’s representation fell below an objective 

standard of reasonableness notwithstanding the fact that no 

precedent at that time established that an attorney has a duty to 

inform a defendant about the immigration consequences of a plea. 

So it cannot be that we judge an attorney’s performance based only 

on settled law. 

¶20 We thus repudiate the language in our case law limiting our 

review of an attorney’s performance to the law in effect at the time of 

trial. Ineffective assistance of counsel claims are premised on the 

protections provided by the Sixth Amendment of the United States 

__________________________________________________________

4 See State v. Dunn, 850 P.2d 1201, 1228 (Utah 1993) (“[A] 

defendant bears the burden of demonstrating why, on the basis of 

the law in effect at the time of trial, his or her trial counsel’s 

performance was deficient.”); State v. Bruun, 2017 UT App 182, ¶ 68, 

405 P.3d 905 (“[C]ounsel is not ineffective for failing to advance a 

theory or interpretation of the law which has not yet been settled or 

ruled upon by our courts.”); State v. Edgar, 2017 UT App 53, ¶ 10, 397 

P.3d 670 (“Counsel ‘cannot be faulted for failing to advance a novel 

legal theory which has never been accepted by the pertinent courts.’” 

(citation omitted)).
STATE v. SILVA

Opinion of the Court

8

Constitution. Strickland, 466 U.S. at 685–86.5 The standards for 

adjudicating such claims are thus a matter of federal law. And it is

not our prerogative to establish doctrines that contradict binding 

precedent from the United States Supreme Court. With this in mind, 

we now concede that we were wrong to suggest that we may assess 

the reasonableness of defense counsel’s performance only in light of

the law in effect at the time of trial. “The proper measure of attorney 

performance remains simply reasonableness under prevailing 

professional norms.” Id. at 688.

¶21 The fact that Silva has raised serious claims on the merits is 

not alone sufficient to sustain reversal, however. We can assume for 

the sake of argument that Silva’s three claims may have merit—that 

there may arguably be an equal protection problem with the 

statutory bar on an illegal alien’s use of force in self-defense, that 

Silva may not have been in the course of attempting to purchase 

drugs when he killed Horacio, and that counsel’s performance fell 

below an objective standard of reasonableness. Yet even assuming 

these errors, we can reverse Silva’s conviction only if the errors are 

prejudicial. See State v. Reece, 2015 UT 45, ¶ 21, 349 P.3d 712. And we 

are convinced that they are not. 

¶22 The prejudice standards implicated here are overlapping but 

somewhat different. For preserved constitutional claims—like Silva’s 

equal protection claim—the State bears the burden of demonstrating 

that the constitutional error was harmless beyond a reasonable 

doubt.6 In contrast, for unpreserved constitutional claims—like 

Silva’s ineffective assistance of counsel claim—the burden of 

demonstrating prejudice rests on the defendant.7 The same goes for 

__________________________________________________________

5 See also Gideon v. Wainwright, 372 U.S. 335, 342–45 (1963)

(incorporating the right to effective assistance of counsel against the 

states). 

6 See Chapman v. California, 386 U.S. 18, 24 (1967) (“Certainly error, 

constitutional error . . . casts on someone other than the person 

prejudiced by it a burden to show that it was harmless. . . . [B]efore a 

federal constitutional error can be held harmless, the court must be 

able to declare a belief that it was harmless beyond a reasonable 

doubt.”); State v. Bond, 2015 UT 88, ¶¶ 37–38, 361 P.3d 104 

(articulating this same standard).

7 See United States v. Olano, 507 U.S. 725, 734 (1993); Strickland, 466 

U.S. at 693–96; Bond, 2015 UT 88, ¶ 46.
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Opinion of the Court

9

Silva’s insufficiency of the evidence claim—he bears the burden of 

demonstrating that this error was prejudicial. See State v. Robertson, 

932 P.2d 1219, 1227 (Utah 1997), overruled on other grounds by State v. 

Weeks, 2002 UT 98, ¶ 25 n.11, 61 P.3d 1000. 

¶23 We conclude that there is a lack of prejudice here under any 

of the above standards. The failure to give a perfect self-defense 

instruction was harmless under any of the above formulations.

¶24 We begin by emphasizing the substantial overlap between 

the defenses of imperfect and perfect self-defense. Imperfect 

self-defense is a strict subset of perfect self-defense. So if a theory of 

imperfect self-defense is rejected by a jury—as was the case here—it 

may logically follow that a theory of perfect self-defense would 

likewise be rejected.

¶25 Self-defense is an affirmative defense that justifies “using 

force against another when and to the extent that the person 

reasonably believes that force . . . is necessary to defend the 

person . . . against another person’s imminent use of unlawful force.” 

UTAH CODE § 76-2-402(1)(a) (2017). Self-defense may be perfect or 

imperfect. Perfect self-defense is a complete justification and bars a 

conviction. See id. It applies when a defendant reasonably believes 

that unlawful force against him is imminent and he is legally justified 

in using force to defend himself. Imperfect self-defense is a partial 

justification. It reduces a murder charge to manslaughter when a 

defendant reasonably, but mistakenly, believes “that the 

circumstances provided a legal justification or excuse” for the use of 

deadly force. Id. § 76-5-203(4)(a). 

¶26 “[F]or both perfect and imperfect self-defense, the same 

basic facts [are] at issue.” State v. Low, 2008 UT 58, ¶ 32, 192 P.3d 867 

(second alteration in original) (quoting State v. Spillers, 2007 UT 13, 

¶ 23, 152 P.3d 315) (internal quotation marks omitted). Both “require 

the defendant to present the same evidence: that the defendant had a 

reasonable belief that force was necessary to defend himself.” Id. The 

only difference between the two defenses is that a defendant arguing 

perfect self-defense must show that the use of deadly force was 

legally justifiable under the circumstances. Id.

¶27 The jury here was presented with the theory of imperfect 

self-defense. And it rejected that theory. Because the jury rejected the 

notion that Silva reasonably but mistakenly believed that deadly force 

was necessary, there is a strong argument that the jury likewise 

would have rejected the notion that Silva reasonably and correctly

believed that such force was necessary. This argument is bolstered 
STATE v. SILVA

Opinion of the Court

10

when we consider the substantial evidence undermining Silva’s 

claim of self-defense. Infra ¶¶ 30–32. In light of this evidence, we 

may assume that the trial court erred when it refused to allow Silva 

to argue perfect self-defense but nonetheless affirm on the basis of a 

conclusion that any such error was harmless. 

¶28 Silva challenges this logic. He claims that a reasonable jury

could reject imperfect self-defense but endorse perfect self-defense.

He bases that assertion on alleged confusion about the distinction 

between perfect and imperfect self-defense, which in his view was 

reflected in the instruction given to the jury in this case. 

¶29 We disagree. The line between perfect and imperfect 

self-defense is subtle but clear.8 Perfect self-defense requires that a 

defendant’s belief that force is necessary be both reasonable and 

legally justified. Imperfect self-defense, meanwhile, requires only

that the defendant’s belief be reasonable. The jury instruction in this 

case accurately reflected this distinction and correctly explained the 

parameters the defense: “Imperfect self-defense . . . applies when the 

defendant caused the death of another while incorrectly, but 

reasonably, believing that his conduct was justified.” This was an 

accurate statement of law. And Silva has identified no basis for a 

determination that the jury in this case must have misunderstood the 

law of imperfect self-defense.

¶30 Silva’s argument, moreover, runs into a brick wall of 

evidence—the evidentiary record at trial. We assess the question of 

prejudice in light of all the evidence presented at trial. See Reece, 2015 

UT 45, ¶ 40. And here the State presented substantial evidence 

confirming Silva’s guilt—and undermining his assertion of imperfect 

self-defense. First is Silva’s testimony, which was inconsistent and 

undermined his claim of self-defense. Silva initially told police that 

he knew Horacio was facing away from him when he shot him. But 

at trial he said he was unsure which way Horacio was facing. He 

__________________________________________________________

8 In so stating we do not mean to suggest that the legal lines in 

this field are always straightforward. The experienced trial judge in 

this case referred to the imperfect self-defense jury instruction as 

“the most confusing . . . concept [he’d] ever dealt with.” Hopefully 

our opinion in this case will help alleviate some of the confusion. We 

also note that the Judicial Council’s Model Utah Jury Instructions 

Committee has recently added model instructions on imperfect 

self-defense. See MUJI 2d CR 1450–52.
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Opinion of the Court

11

also told police that he knew Horacio was unarmed. Yet he told the 

jury that he was unsure of that fact. Silva claimed at trial that it was 

too dark to see which way Horacio was facing. But he claimed that 

he could see several other details that night, including the gun 

pointed at his chest, which way Horacio’s hat was facing, the gun on 

the black asphalt, and the shot in the back of Horacio’s head. And 

Silva conceded at trial that he had other options besides shooting 

Horacio including throwing the gun out of Horacio’s reach or 

running away. 

¶31 Silva’s trial testimony is also undermined by the statements 

he made to his roommate, Fabricio. He initially told Fabricio that 

Horacio left him some time during their walk to purchase drugs. His 

story changed the next day when he admitted that he killed Horacio. 

But he never claimed to have acted in self-defense. Rather he told 

Fabricio that he shot Horacio because Horacio had been listening to 

Norteño music. 

¶32 The physical evidence further undermines Silva’s claim of 

self-defense. Horacio was shot in the back of the head. And the bullet 

went straight through, suggesting that Horacio was facing away 

from Silva when he was shot, not turning, and thus not in a position 

to cause imminent harm to Silva. Nor was there any indication in the 

record of a struggle between Silva and Horacio over the gun—no 

evidence of any injury to either (other than the fatal shot to Horacio’s 

head), or any other basis for the jury to conclude that there was a 

struggle. All of this suggests that even if Silva had been allowed to 

argue perfect self-defense, the jury likely would have convicted him 

of murder anyway.

¶33 Silva proffered a final basis for establishing prejudice during 

oral argument to this court. His counsel asserted that the reasonable 

belief required for perfect self-defense is different from the 

reasonable belief required for imperfect self-defense. And he claimed 

that the jury might thus have found in his favor had he been allowed 

to present a theory of perfect self-defense. This assertion fails on two 

counts. The first problem is one of timing. This argument was raised 

for the first time at oral argument, and “[w]e do not address issues 

raised for the first time during oral argument.” Porenta v. Porenta, 

2017 UT 78, ¶ 33, 416 P.3d 487. The second problem is more 

substantive. The argument is premised on a misstatement of our law. 

The difference between perfect and imperfect self-defense goes to

legal justification, not the standard of reasonable belief. Imperfect 

self-defense requires a “reasonable belief that the circumstances 

provided a legal justification or excuse for the conduct although the 
STATE v. SILVA

Opinion of the Court

12

conduct was not legally justifiable or excusable under the existing 

circumstances.” UTAH CODE § 76-5-203(4)(a) (emphasis added). 

Perfect self-defense similarly requires a “reasonable belief,” but it 

also requires that the use of force be legally justifiable under the 

circumstances. See id. § 76-2-402 (2017); State v. Low, 2008 UT 58, ¶ 32, 

192 P.3d 867. The standard for “reasonable belief” is the same for 

both defenses. The difference goes only to whether the acts of 

self-defense were “legally justifiable.” And Silva’s last argument

would thus also fail even if we were to reach it.

¶34 For these reasons we decline to reach the merits of Silva’s 

arguments regarding his right to assert perfect self-defense. We 

conclude that even if he was entitled to a perfect self-defense 

instruction, there is no reasonable likelihood that the trial would 

have turned out differently if the jury had been instructed on that 

defense. The State has demonstrated harmlessness beyond a 

reasonable doubt. The alleged errors are thus harmless under any of 

the prejudice standards implicated here. See supra ¶ 22.

B

¶35 Silva’s second contention is that the trial court abused its 

discretion when it refused to grant a mistrial after the prosecutor

conducted a demonstration using a facsimile gun. We disagree. Our

decision is largely driven by the deferential standard of review. We 

note below some concerns we have with such demonstrations and 

advise the bench and bar to carefully consider whether such 

demonstrations comply with the demands of our rules of evidence. 

But we affirm because we conclude that the trial court did not abuse 

its discretion in the circumstances of this trial.

¶36 We review the denial of a motion for a mistrial under an 

abuse of discretion standard. State v. Vargas, 2001 UT 5, ¶ 44, 20 P.3d 

271. And “[w]e will not find such abuse unless ‘the incident so likely 

influenced the jury that the defendant cannot be said to have had a 

fair trial.’” Id. (citation omitted). Here we find no such abuse of 

discretion.

¶37 The demonstration, for starters, had some probative value. 

The critical question for the jury to decide was whether Silva 

reasonably believed that he was justified in shooting Horacio. And 

whether Silva’s belief was reasonable turned, at least in part, on facts 

demonstrated by the prosecutor—as to the way Silva held the gun 

and the relevant positions of Silva and Horacio. We thus can

understand why the trial court stated that the demonstration was 

“central to the whole case.” 
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Opinion of the Court

13

¶38 At the same time, we are skeptical of the trial court’s 

sweeping statement that the demonstration was not “prejudicial at 

all.” Seeing a gun in the hands of a defendant will often prejudice the 

jury against him. This is true even where there is no question that the 

defendant used a gun to commit the alleged crime, as is the case 

here. This concern, nonetheless, does not warrant overturning the 

trial court’s decision.

¶39 First we don’t have evidence in the record establishing what 

the facsimile gun looked like. And that could make a difference. Use 

of a plastic water gun, for example, is less likely to prejudice the jury 

against the defendant than the use of a real firearm, or a highly 

realistic facsimile. Though the gun used here may have resembled 

something closer to a real gun, the record is devoid of detail. We 

similarly lack evidence regarding the details of the demonstration 

itself. Silva claims that the prosecutor repeatedly taunted him in 

front of the jury. Having reviewed an audio recording of the trial, we 

are skeptical of this claim. Admittedly, we were not privy to the 

details of the demonstration. Yet the trial judge was. And he

determined that the probative value of the demonstration was not 

substantially outweighed by a danger of unfair prejudice. See UTAH 

R. EVID. 403. That determination is entitled to substantial deference. 

See State v. Allen, 2005 UT 11, ¶ 39, 108 P.3d 730 (explaining that a 

district judge “is in an advantaged position to determine the impact 

of courtroom events on the total proceedings” and applying an 

abuse of discretion standard of review).

¶40 The trial court also gave defense counsel an opportunity to 

clarify the factual differences between the demonstration and the 

shooting. And Silva testified that his responses to the prosecutor’s 

questioning about whether he felt in danger during the 

demonstration were only meant to convey that he did not feel in 

danger at that exact moment; he did feel in danger at the time of the 

shooting. These clarifications soften the potential prejudice the 

defendant may have faced as a result of the demonstration. 

¶41 We reiterate that our decision is largely a result of the 

standard of review. We affirm the trial court’s decision because we 

are unpersuaded that it abused its discretion, or that the 

demonstration “so likely influenced the jury that the defendant 

cannot be said to have had a fair trial.” Vargas, 2001 UT 5, ¶ 44

(citation omitted) (internal quotation marks omitted). Under

different circumstances we might reach a different conclusion. As 

this case proves, permitting a demonstration in which a defendant 

holds a facsimile gun does not per se violate rule 403 and justify a 
STATE v. SILVA

Opinion of the Court

14

mistrial. But there is a risk that such a demonstration could. And we 

emphasize that our decision here is not a green light to the use of 

gun demonstrations at any trial going forward. 

III

¶42 We affirm Silva’s conviction for the reasons stated above. 

We also affirm the trial court’s decision to deny Silva’s motion for a 

mistrial, while emphasizing that our decision on that point is largely 

a product of the deferential standard of review.