author: POHLMAN, Judge:

text:
    STATE of Utah, Appellee, v. Jacob BAER, Appellant.
    No. 20170479-CA
    Court of Appeals of Utah.
    Filed January 17, 2019
    Nathan Phelps, Draper, Attorney for Appellant
    Sean D. Reyes, Salt Lake City, and Jonathan S. Bauer, Attorneys for Appellee
    Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.
    Opinion
   POHLMAN, Judge:

¶1 Late one summer night, eighteen-year-old Jacob Baer and three other teenage boys entered a community swimming pool after hours. One of the teenagers who worked as a lifeguard at the pool (Lifeguard) used a key to let them in, and the group went swimming. Afterward, unbeknownst to Lifeguard, Baer took the pool's small lockbox used to store the pool's cash. When Lifeguard later asked Baer about the missing lockbox, Baer told him, "Tell the cops I wasn't there." With help from one of the other teenagers, K.D., authorities eventually recovered the pool's bank deposit bag from a nearby reservoir-the same place where Baer told a jailhouse informant that he had dumped the lockbox.

¶2 Baer now appeals his convictions for burglary, a third degree felony, and theft of services, a class B misdemeanor. He contends that he received constitutionally ineffective assistance of counsel when his trial counsel failed to move for a directed verdict and failed to object to the jury instructions. We affirm.

ANALYSIS

¶3 A criminal defendant shows that he has been deprived of his right to the effective assistance of counsel if he demonstrates both that his "counsel's performance was deficient" and that "the deficient performance prejudiced the defense." Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show that his trial counsel performed deficiently, a defendant must demonstrate that "his counsel rendered a demonstrably deficient performance that fell below an objective standard of reasonable professional judgment." State v. Robertson , 2018 UT App 91, ¶ 36, 427 P.3d 361 (quotation simplified). But "it is well settled that counsel's performance at trial is not deficient if counsel refrains from making futile objections, motions, or requests." State v. Burdick , 2014 UT App 34, ¶ 34, 320 P.3d 55 (quotation simplified). To demonstrate prejudice, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland , 466 U.S. at 693, 104 S.Ct. 2052. Rather, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052.

¶4 "When a criminal defendant raises a claim of ineffective assistance of counsel for the first time on appeal, there is no trial court ruling to examine. We must therefore decide, as a matter of law, whether [Baer] received constitutionally ineffective assistance of counsel." See State v. Burnett , 2018 UT App 80, ¶ 19, 427 P.3d 288 (citation omitted).

¶5 On appeal, Baer raises two issues. First, he contends that his trial counsel was ineffective for failing to seek a directed verdict on the burglary and theft of services charges. Second, he contends that his trial counsel was ineffective for failing to ensure that the jury instructions properly stated the applicable mental states for those two charges.

I. Sufficiency of the Evidence

¶6 Baer contends that his trial counsel rendered ineffective assistance of counsel by "failing to challenge the sufficiency of the evidence" supporting the charges of burglary and theft of services. He suggests that counsel should have sought to dismiss those charges by moving for a directed verdict. We disagree.

¶7 If the State presents no competent evidence from which a reasonable jury could find the elements of the relevant crime, then trial counsel should move for a directed verdict and the failure to do so "would likely constitute deficient performance." State v. Burdick , 2014 UT App 34, ¶ 35, 320 P.3d 55 (quotation simplified). But "a directed verdict should not be granted if, upon reviewing the evidence and all inferences that can be reasonably drawn from it[,] some evidence exists from which a reasonable jury could find that the elements of the crime had been proved beyond a reasonable doubt." Id. (quotation simplified). Thus, if the State presents "some evidence from which a reasonable jury could find" all the elements, "trial counsel's decision not to raise a futile motion for a directed verdict would not be deficient performance." See id. (quotation simplified). In examining whether a motion for directed verdict could have been granted, "we view the evidence presented at trial in the light most favorable to the State." Id.

¶8 With this standard in mind, we first consider whether a directed verdict motion would have been futile on Baer's charge for burglary, and then we consider the same question with regard to the charge for theft of services.

¶9 Regarding the burglary charge, Baer asserts that "the State failed to show that [he] unlawfully entered the pool." Baer acknowledges Lifeguard's testimony that Lifeguard "was not authorized to go into the pool at night," but Baer asserts that "the State never elicited testimony suggesting that [Lifeguard] explained to [Baer] and the other boys that he was not authorized to admit the others to the pool after hours." In Baer's view, there was no evidence "showing why [Baer] should know that he was not authorized" to enter the pool after hours.

¶10 As relevant here, Utah law defines burglary as when a person "enters or remains unlawfully in a building or any portion of a building with intent to commit ... theft." Utah Code Ann. § 76-6-202(1)(b) (LexisNexis 2017). Baer's sufficiency argument focuses solely on the element of entering or remaining unlawfully. The Utah Code defines "enter or remain unlawfully" to mean that

a person enters or remains in or on any premises when: (a) at the time of the entry or remaining, the premises or any portion of the premises are not open to the public; and (b) the actor is not otherwise licensed or privileged to enter or remain on the premises or any portion of the premises.

Id. § 76-6-201(3). The undisputed evidence established that the pool was closed at the time of Baer's entry and thus was "not open to the public." See id. § 76-6-201(3)(a). Baer concedes that "there is nothing to suggest that [his] entry was privileged" to enter the premises, so the relevant question is whether sufficient evidence showed that Baer was not "otherwise licensed ... to enter or remain on the [pool's] premises." See id. § 76-6-201(3)(b).

¶11 The primary evidence against Baer about his entry to the pool was provided by Lifeguard and K.D. Lifeguard testified that, on the weekend night in question, he had possession of a key to the pool so that he could open the pool at 5 a.m. the next Monday morning. According to Lifeguard, even though he was not authorized to go into the pool at night, Lifeguard suggested to K.D. and another teenager, G.S., that they go "night swimming." G.S. invited Baer to join them, and Baer met them there. K.D. testified that Baer parked his car at the middle school "right next door" to the pool. Lifeguard then used his key to unlock the pool, and they all went swimming. Lifeguard testified that they entered the pool at "about ten at night," but the State also introduced evidence that Lifeguard told the pool manager that they had been there at about "2:00 in the morning."

¶12 Although Baer maintains that the evidence failed to show "why [he] should know that he was not authorized" to enter the pool after hours with a lifeguard who had a key, the State's evidence, and the reasonable inferences that can be drawn from it, provided a sufficient basis for a reasonable jury to conclude that Baer was not licensed or authorized to enter or remain at the pool after hours and that Baer knew that he lacked such authorization.

¶13 Baer and the other teenagers entered the locked pool on a weekend evening around 10 p.m. or later. Lifeguard-who was merely a juvenile employee of the pool and not, say, a manager-used his key to access the premises. Lifeguard testified that he had the key for the purpose of opening the pool Monday morning and was not authorized to go into the pool at night. Relying on logic and reasonable human experience, a jury could reasonably infer from these facts that this group of teenagers, out late on a weekend, was not allowed to access the closed pool and that Lifeguard did not have authority to take his friends "night swimming." See generally State v. Cristobal , 2014 UT App 55, ¶ 4, 322 P.3d 1170 ("A reasonable inference is a conclusion that can be drawn from the evidence and is based on logic and reasonable human experience."). Even though Baer claims that he did not actually know that Lifeguard lacked authority to open the pool to him, no evidence suggested that Baer had reason to believe that Lifeguard was allowed to treat his friends to an after-hours swim. Yet other evidence supports the reasonable inference that Baer knew that his entry to the pool was unlawful. Before entering the premises, Baer parked his car next door at the middle school. One reasonable inference from that fact is that Baer was seeking to avoid detection and knew that the group was sneaking into a pool that was off-limits. Cf. Salt Lake City v. Carrera , 2015 UT 73, ¶ 11, 358 P.3d 1067 ("Circumstantial evidence is particularly useful in establishing intent because direct evidence of intent is rarely available. We allow juries to rely on circumstantial evidence to find intent on the basis of reasonable inferences drawn from the evidence.").

¶14 Thus, contrary to Baer's assertions, the State did provide some evidence from which a reasonable jury could find that Baer "unlawfully entered the pool" and that "[Baer] should know that he was not authorized" to enter the pool. As a result, the trial court would not have granted a motion for a directed verdict on the burglary charge, and trial counsel therefore did not render ineffective assistance in failing to raise a futile motion. See Burdick , 2014 UT App 34, ¶ 34, 320 P.3d 55 ; see also State v. Johnson , 2015 UT App 312, ¶ 16, 365 P.3d 730.

¶15 Regarding the theft of services charge, Baer makes a similar argument. He first explains that the "service [he] is accused of stealing is use of the swimming pool." Then he asserts that "the State failed to produce evidence showing that [Baer] did know that accepting [Lifeguard's] invitation to swim was not proper" or that Lifeguard "was not permitted to open the pool to his friends," because no evidence showed that "the fee couldn't be waived or that employees weren't allowed to bring friends in without cost."

¶16 Under Utah law, "[a] person commits theft if he obtains services which he knows are available only for compensation by deception, threat, force, or any other means designed to avoid the due payment for them." Utah Code Ann. § 76-6-409(1) (LexisNexis 2017). The same facts that support a finding that Baer entered the pool unlawfully also support the reasonable inference that Baer knew that swimming in the pool was available only for a fee. Supra ¶13. Again, contrary to Baer's assertions, the State submitted some evidence that could support a finding that Baer did know that accepting Lifeguard's invitation to swim when the pool was closed to the public "was not proper."

¶17 In sum, if trial counsel had moved for a directed verdict on the burglary or theft of services charges, those efforts would have been futile. Baer's ineffective assistance claims in this regard fail. See Burdick , 2014 UT App 34, ¶ 34, 320 P.3d 55.

II. The Jury Instructions

¶18 Baer next contends that his trial counsel was ineffective for failing to demand that the jury be properly instructed on the applicable mental states for burglary and theft of services. We conclude that Baer has not carried his burden of persuasion and that his ineffective assistance claims in connection with the two instructions therefore fail.

¶19 The Utah Rules of Appellate Procedure require an appellant's brief to "explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal." Utah R. App. P. 24(a)(8). "Briefs must contain reasoned analysis based upon relevant legal authority. An issue is inadequately briefed when the overall analysis of the issue is so 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 (quotation simplified). And "an appellant that fails to devote adequate attention to an issue is almost certainly going to fail to meet [his] burden of persuasion." State v. Ogden , 2018 UT 8, ¶ 24 n.3, 416 P.3d 1132 (quotation simplified).

¶20 With respect to both jury instructions, Baer has not carried his burden to show that counsel performed deficiently and that he was prejudiced by counsel's alleged errors. Although Baer asserts that his counsel performed deficiently by failing to ensure the instructions properly explained the applicable mental states and asserts that the instructions were inadequate, he does not identify or discuss the offending instructions and fails to make a cogent argument about what should have been done to make them passable. As a result, Baer's terse briefing on the adequacy of the jury instructions and his counsel's performance effectively "shift[s] the burden of research and argument" to this court. See Davie , 2011 UT App 380, ¶ 16, 264 P.3d 770 (quotation simplified). Likewise, Baer has not devoted adequate attention to showing how, given the facts of this case, there is a reasonable probability that, but for counsel's failure to object to the instructions, the outcome would have been different. Baer therefore has not demonstrated ineffective assistance of counsel related to the jury instructions.

CONCLUSION

¶21 We conclude that, because the State introduced sufficient evidence of burglary and theft of services, Baer's trial counsel did not perform ineffectively by failing to move for a futile directed verdict on those charges. We further conclude that, because Baer has not carried his burden of persuasion, he cannot prevail on his ineffective assistance of counsel claims regarding his counsel's failure to object to the jury instructions. Accordingly, we affirm.

      In connection with the underlying events in this case, Baer was convicted of four other misdemeanor offenses, including theft, destruction of property, tampering with evidence, and contributing to the delinquency of a minor. Baer does not challenge those convictions.

      Baer also briefly suggests that his trial counsel should have filed a motion to arrest judgment before sentencing with respect to the burglary conviction. When this court considers "whether filing a motion to arrest judgment would have been futile, we evaluate whether the evidence presented at trial was so questionable that such a motion would have caused the trial court to reverse the jury verdict." State v. Wells , 2014 UT App 13, ¶ 7, 318 P.3d 1251. "The court may only reverse a jury verdict when the evidence is sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime for which he or she was convicted." Id. (quotation simplified). "As we conduct [this] evaluation, we review the evidence and all reasonable inferences that may fairly be drawn therefrom in the light most favorable to the jury verdict."Id. (quotation simplified). Here, any effort to arrest judgment on Baer's burglary conviction would have been futile for the same reasons that a motion for a directed verdict would have failed. See infra ¶¶12-14.

      Baer might have reasonably believed that he was allowed to be on the premises that night if there had been evidence that, for example, Lifeguard told Baer that employees and their guests were permitted to use the pool's facilities after hours. But the only evidence in the case was the State's; Baer did not call any witnesses.

      "In this section 'services' includes, but is not limited to, labor, professional service, public utility and transportation services, restaurant, hotel, motel, tourist cabin, rooming house, and like accommodations, the supplying of equipment, tools, vehicles, or trailers for temporary use, telephone or telegraph service, steam, admission to entertainment, exhibitions, sporting events, or other events for which a charge is made." Utah Code Ann. § 76-6-409(3) (LexisNexis 2017).


source: Caselaw Access Project

author: MORTENSEN, Judge:

license: Public Domain

text:
    STATE of Utah, Appellee, v. Teresa Marie ALIRES, Appellant.
    No. 20160966-CA
    Court of Appeals of Utah.
    Filed January 17, 2019
    Nathalie S. Skibine and Marlene M. Mohn, Attorneys for Appellant
    Sean D. Reyes, Salt Lake City, and William M Hains, Attorneys for Appellee
    Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Kate Appleby concurred.
    Amended Opinion

      This Amended Opinion replaces the Opinion in Case No. 20160966-CA that was issued on September 7, 2018. After our original opinion issued, the State of Utah and Defendant Teresa Marie Alires filed petitions for rehearing. We grant the petitions as reflected now in Part II.

   MORTENSEN, Judge:

¶1 After accusing her wife (Wife) of infidelity, Defendant Teresa Marie Alires threatened to beat and kill Wife in the presence of their infant child and teenage niece. As their argument escalated, Alires threatened to strangle Wife-and then proceeded to do so. She slapped Wife, pushed her up against the wall, struck her in the head, lifted her by the throat, and threw her onto the couch. Placing both hands on Wife's neck, Alires pushed down until Wife could not breathe and could barely make any sounds. After thirty seconds, Alires let go of Wife, who then left the house and called the police. The State charged Alires with two counts of domestic violence in the presence of a child and one count of aggravated assault. At trial, Alires requested a self-defense instruction, but the court denied it. The jury convicted her on all charges. Alires now appeals on three grounds. First, she contends that the trial court erred in holding that the evidence presented was sufficient to prove, beyond a reasonable doubt, that she used force likely to cause death or serious bodily injury. Second, she argues that she was erroneously denied a self-defense instruction. Third, she claims constitutional error. We affirm.

BACKGROUND

Domestic Incident

¶2 Alires and Wife married in 2010 and had a child together in 2014. Wife described their marriage as "fearful," stating that they had committed acts of domestic violence upon each other throughout their marriage, though Wife claimed that she had only ever acted in self-defense against Alires's abuse. One morning, an argument between Alires and Wife erupted into physical violence. The disagreement-which their fifteen-year-old niece (Niece) recorded on a cell phone-escalated after Wife told Alires that she would not get custody of their fourteen-month-old child in the event of a divorce. Alires threw a plate of fruit at Wife, calling her a "fucking slut," a "dumb bitch," and a "true whore." She told Wife that she was "very, very replaceable" and said, "[T]he only thing that works is fuckin' smackin' you."

¶3 When Wife said she would take their infant child away from Alires, she responded, "Keep fucking talking about how you're gonna keep [him] from me ... and I will fucking choke you out right fucking now." As the argument continued, Alires threatened, "Shut up ... or else I'll fucking kill you." When Wife told Alires to get a lawyer, Alires threw a hairbrush at Wife, who was holding their child. Niece took the child from Wife and left the room.

¶4 After Niece departed, Alires told Wife, "Come get your beat-down bitch," and then forced Wife against the wall and began slapping and punching her in the head. Wife tried to stop her, but Alires lifted Wife up by the neck, threw her on the couch, and pinned her there. Alires then placed both of her hands around Wife's neck and began strangling her, pressing with "weight galore." Although Wife did not lose consciousness, she could not breathe, speak, or scream for help. Wife tried to free herself, but was unable. After approximately thirty seconds, Alires let go of Wife's neck. Wife immediately took their child and Niece outside and called the police.

¶5 The police arrived and examined Wife. Although Wife refused formal medical treatment, the officer who responded to the call (Officer) observed several injuries, including a bump and bruise on Wife's head, a scratch on her chest, and red markings around her neck. For a couple of days following the incident, Wife's throat hurt and she could not eat or swallow. Wife was "emotional," "hysterical," and "in distress."

¶6 Officer also interviewed Alires, but Officer did not notice any injuries or marks on Alires's body. In fact, Alires said that she "couldn't be injured because she was stronger than [Wife]." Officer testified that Alires admitted to choking Wife but claimed that she acted in self-defense. Alires alleged that she and Wife had gotten into an argument and Wife had slapped her, so "she slapped [Wife] back, and then had to restrain her." Alires further asserted that, in an effort to subdue Wife, Alires had "grabbed onto [Wife's] throat, sort of lifted her up, and then pushed her down onto the couch," holding her there by the neck until Wife had "calmed down."

Summary of Proceedings

¶7 The State charged Alires with one count of aggravated assault and two counts of commission of domestic violence in the presence of a child. Alires was tried by a jury. At trial, the State presented evidence against Alires, including an audio recording of the fight as well as testimony from Wife, Officer, and a forensic nurse (Nurse).

¶8 Without ever examining, interviewing, or reviewing Wife's injuries, Nurse explained that, in general, strangulation is "any sort of outside force applying pressure to the neck" that prevents oxygenated blood from reaching the brain, either by restricting blood flow or air intake. Nurse further testified that symptoms of strangulation included loss of consciousness, bowel release, urination, difficulty swallowing, hoarseness, shortness of breath, voice changes, scratches, claw marks, and bruises. She elaborated that it would take only three minutes of complete obstruction of the carotid arteries to cause death, but some cells in the brain can begin to die within six to ten seconds if deprived of oxygen-and once brain cells die, they do not regenerate. Additionally, she testified that lack of oxygen to the brain may have a "traumatic brain effect" that is "similar to a concussion," especially if the event is recurring.

¶9 At the close of the State's presentation of evidence, Alires moved for a directed verdict, arguing that the evidence was insufficient on all counts. Responding to the charge of aggravated assault, Alires argued that there was no evidence that the alleged force used-thirty seconds of pressure on Wife's neck-was likely to produce death or serious bodily injury. Additionally, Alires argued that even if there was an aggravated assault, it did not occur in the presence of a child, and therefore she could not be convicted on the charges of domestic violence in the presence of a child. The court denied the motion.

¶10 Alires then testified on her own behalf, stating that Wife's account and Officer's account of what Alires told him after the accident were inaccurate. Alires said that she was angry but did not intend to literally carry out the threats against Wife. Notwithstanding her alleged admission to Officer that she had strangled Wife, Alires later claimed that after Wife instigated the fight, Alires's hand might have hit Wife's neck "when [they] fell over the couch," but she did not choke or squeeze Wife's neck. Alires further testified that Officer asked her repeatedly if she restrained Wife by grabbing her neck, and she responded that she did not. She also testified that she was injured in the fight but withheld that information from Officer to protect Wife.

¶11 Finally, Alires claimed that other than this incident, she had never hit Wife-though she had "restrained" her several times throughout the course of their relationship-and until recently, it had been a "very happy marriage." The State recalled Wife as a rebuttal witness, and she testified that prior to this incident Alires had punched her on sixty separate occasions throughout the course of their relationship. Wife added, "[S]he made me believe that it was my fault that I was getting hit."

¶12 Alires requested a self-defense instruction, but the trial court determined that such an instruction was improper when "someone denies the conduct that is the heart of the charge." And because Alires testified that she did not squeeze Wife's neck, the court determined that the situation did not "call for a justification instruction." But the court did give a lesser-included-offense instruction for simple assault. A jury convicted Alires on all counts as charged, and Alires timely appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Alires first argues that there was insufficient evidence for the jury to conclude that her strangulation of Wife constituted means or force likely to cause death or serious bodily injury. We "will reverse a jury conviction for insufficient evidence only when the evidence, viewed in the light most favorable to the jury's verdict, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which [she] was convicted." State v. Lucero , 2012 UT App 202, ¶ 2, 283 P.3d 967 (cleaned up). "The court's inquiry ends when there is some evidence, including reasonable inferences, from which findings of all the requisite elements of the crime can reasonably be made." State v. White , 2011 UT App 162, ¶ 8, 258 P.3d 594 (cleaned up).

¶14 Alires also argues that the trial court erred when it declined to give the jury a self-defense instruction. A trial court's "refusal to give a jury instruction is reviewed for abuse of discretion." State v. Berriel , 2013 UT 19, ¶ 8, 299 P.3d 1133 (cleaned up).

However, in order for a party to prevail, they must also show that the error harmed, or prejudiced, the outcome of the proceeding. State v. Reece , 2015 UT 45, ¶ 39, 349 P.3d 712 ("[W]e have applied harmless-error review to erroneous self-defense instructions and the complete failure to instruct the jury on an affirmative defense." (cleaned up) ).

¶15 Finally, Alires argues that if the denial of her self-defense instruction does not result in reversal as a matter of law, it should be reversed on the basis of "constitutional" error. Her argument is not preserved and, accordingly, we decline to address it. "As a general rule, claims not raised before the trial court may not be raised on appeal." See State v. Holgate , 2000 UT 74, ¶ 11, 10 P.3d 346.

ANALYSIS

I. Strangulation Evidence

¶16 Alires contends that the trial court incorrectly held that the evidence presented was sufficient to prove, beyond a reasonable doubt, that Alires used force likely to cause death or serious bodily injury-and therefore she could not properly be convicted of aggravated assault or domestic violence in the presence of a child. The burden of bringing an insufficiency claim is high, State v. White , 2011 UT App 162, ¶ 8, 258 P.3d 594, and here, Alires's argument fails because any amount of strangulation is sufficient evidence of force adequate to cause serious bodily harm, see supra ¶ 8 n.4. Moreover, in the case at hand, the unrefuted testimony likewise established that the duration and force of strangulation was adequate to cause serious bodily injury.

¶17 We begin by reviewing the elements of the charged crimes. Utah Code section 76-5-103 states that aggravated assault is an actor's conduct that is

(i) an attempt, with unlawful force or violence, to do bodily injury to another;
(ii) a threat, accompanied by a show of immediate force or violence, to do bodily injury to another; or
(iii) an act, committed with unlawful force or violence, that causes bodily injury to another or creates a substantial risk of bodily injury to another; and

includes the use of a dangerous weapon or "other means or force likely to produce death or serious bodily injury." Utah Code Ann. § 76-5-103 (LexisNexis Supp. 2015).

¶18 Similarly, a person commits the crime of domestic violence in the presence of a child if, among other circumstances, the person uses "means or force likely to produce death or serious bodily injury" in the presence of a child. Id. § 76-5-109.1(2)(b). Therefore, all three charges against Alires require a finding of serious bodily injury-a "trigger necessary to convict." See White , 2011 UT App 162, ¶ 10, 258 P.3d 594.

¶19 Serious bodily injury is any "bodily injury that creates or causes serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or creates a substantial risk of death." Utah Code Ann. § 76-1-601(11) (LexisNexis 2015). Alires challenges the sufficiency of the evidence presented to support the jury's finding that Wife's injury-thirty seconds of pressure to her neck-constituted serious bodily injury.

¶20 But to find serious bodily injury "[i]t is not necessary to prove that death or serious bodily injury occurred"; it is only necessary to prove that "the actor used means or force likely to have that result." State v. Peterson , 681 P.2d 1210, 1219 (Utah 1984). It is well settled that strangulation, even if performed without the intent to kill, constitutes sufficient evidence of force likely to cause death or serious bodily injury. See State v. Speer , 750 P.2d 186, 191 (Utah 1988) (holding that strangling a victim until she almost lost consciousness is uncontroverted testimony that "establishes that [the defendant] used force likely to cause death or serious bodily injury" (cleaned up) ); State v. Fisher , 680 P.2d 35, 37 (Utah 1984) ("In other words, defendant intentionally committed an act that is dangerous to human life (strangulation), intending to cause serious bodily injury (protracted loss or impairment of both the heart and the brain, i.e., unconsciousness).").

¶21 Here, the fact that Wife did not lose consciousness, experience severe physical symptoms, or die does not preclude the jury from finding that the force was likely to have that result. See Peterson , 681 P.2d at 1219. The jury heard that Alires strangled Wife for thirty seconds, in addition to threatening to "choke [her] out" and "fucking kill her." Additionally, Nurse testified that after six to ten seconds, brain cells, which do not regenerate, begin to die if deprived of oxygen. From this evidence, a reasonable juror could find that Alires's actions were evidence of serious bodily injury or force likely to have that result. Therefore, the jury could properly convict her of both aggravated assault and domestic violence in the presence of a child. We therefore deny Alires's appeal on this point and affirm the denial of her directed verdict motion.

II. Self-Defense Instruction

¶22 Alires next contends that the trial court erred in declining to give the jury a self-defense instruction regarding her conduct. Assuming without deciding that the trial court erred in refusing to give a self-defense instruction, Alires's claim fails due to the fact that even if error occurred, the error was harmless because the jury was not reasonably likely to acquit after hearing Wife's testimony and listening to a recording of the altercation between Alires and Wife.

¶23 Harmless errors do not require reversal. State v. Reece , 2015 UT 45, ¶ 33, 349 P.3d 712. "An error is harmless ... if it is sufficiently inconsequential that we conclude there is no reasonable likelihood that the error affected the outcome of the proceedings.... Errors are often harmless where there is overwhelming evidence in the record of the defendant's guilt." Id. ¶ 33 (cleaned up). Even if one were to conclude that the evidence was sufficient to justify giving the self-defense instruction, we do not reverse where the error is harmless. See id. ¶ 39 ("[W]e have applied harmless-error review to erroneous self-defense instructions and the complete failure to instruct the jury on an affirmative defense." (cleaned up) ). Alires has failed to persuade us that the alleged trial court error harmed her for two reasons.

¶24 First, based on the defense Alires presented at trial-in particular, her own testimony-there is "no reasonable likelihood that the error affected the outcome of the proceedings." Id. ¶ 33 (cleaned up). It must be acknowledged that Alires's main defense at trial was that she did not choke Wife. Alires insisted that she did not choke or squeeze Wife's neck, that she did not restrain Wife by grabbing her by the neck, and that her hand might have hit Wife's neck "when [they] fell over the couch." However, to claim self-defense, Alires would have asked the jury to conclude that she did, in fact, choke or squeeze Wife's neck, or restrain Wife by grabbing her by the neck-albeit in self-defense. But this assertion would have contradicted her actual trial testimony and her primary defense entirely. Accordingly, had the jury been permitted to consider Alires's proposed self-defense theory, the jury would have also had to acknowledge the discrepancy between her testimony at trial and other evidence, and conclude that Alires was not credible.

¶25 Second-and more importantly-any alleged error was harmless because "there [wa]s overwhelming evidence in the record of the defendant's guilt." Id. ¶ 33 (cleaned up). When viewed against the evidence presented by the State, Alires's evidence and arguments in support of her self-defense theory were "so slight as to be incapable of raising a reasonable doubt in the jury's mind." See State v. Burke , 2011 UT App 168, ¶ 81, 256 P.3d 1102 (cleaned up); see also State v. Piansiaksone , 954 P.2d 861, 872 (Utah 1998). The evidence Alires presented in support of her self-defense theory was comprised wholly of: (1) Alires's testimony that Wife was the aggressor and (2) Officer's testimony that Alires said that Wife had slapped her, so she had to "slap[ ] [Wife] back, and then had to restrain her." This evidence is not likely to have raised a reasonable doubt in the jury's mind after considering the State's evidence, which included: (1) presentation to the jury of the recording in which Alires threatened Wife's life and shouted profanities at her; (2) Alires's admission that she slapped Wife while simultaneously claiming, "I would never hurt her. I would never dream about hurting her. I've never hurt her before, nor after, nor would I ever"; (3) Alires's assertion that she did not like fighting "[but Wife] likes to scream really loud when we're fighting," while acknowledging that she was the one screaming on the recorded incident; (4) inconsistencies involving Alires's claim that her marriage was "very happy"; (5) Officer's testimony that Wife had several physical injuries, whereas Alires had none; and (6) Alires's prior conviction for giving a false report to a law enforcement officer, which further eroded Alires's credibility in the eyes of the jury. Again, as a result, any alleged error the trial court made is harmless.

¶26 Accordingly-even assuming without deciding that the trial court erred in failing to give the self-defense instruction-the trial court's error was harmless because, based on the overwhelming evidence presented against Alires at trial, there is no reasonable likelihood that the jury would have acquitted Alires. As a result, our confidence in the verdict is not undermined and thus, reversal is not warranted.

III. Constitutional Error

¶27 Lastly, Alires contends that if the denial of her self-defense instruction does not result in reversal as a matter of law, it should be reversed on the basis of "constitutional" error. "As a general rule, claims not raised before the trial court may not be raised on appeal." See State v. Holgate , 2000 UT 74, ¶ 11, 10 P.3d 346. To preserve any claim of error, "the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue." Brookside Mobile Home Park, Ltd. v. Peebles , 2002 UT 48, ¶ 14, 48 P.3d 968.

¶28 Alires points to two places in the record in an attempt to demonstrate preservation, but both are insufficient to raise a general argument regarding her constitutional right to a self-defense jury instruction such that the trial court would have had the opportunity to rule on the issue. First, Alires contends that denial of her self-defense instruction was a constitutional error preserved by the following statement made at trial by her attorney: "Your Honor, based on the testimony, a self defense instruction might be warranted. I have some self defense instructions in here." Second, Alires points to her submission of proposed jury instructions to the court. Using these two passing instances, Alires attempts to elevate the issue to federal constitutional status.

¶29 But she has failed to show how these two instances would "have alerted the trial court that denying [her request for jury instructions] would deprive [her] of [her] due process right." State v. Sanchez , 2018 UT 31, ¶ 32, 422 P.3d 866 (cleaned up). Neither of these instances even mentions a constitutional argument, let alone raises the issue sufficient to a "level of consciousness" before the trial court. Id. (cleaned up). As such, the issue is not preserved.

CONCLUSION

¶30 We hold that the jury was presented with sufficient evidence to find that Alires's actions constituted serious bodily injury. Additionally, assuming without deciding that the trial court erred in denying Alires's proposed self-defense instruction, any error was harmless. Lastly, because it was not preserved, we decline to address Alires's argument regarding constitutional error.

¶31 Affirmed.

      "On appeal from a criminal conviction, we recite the facts from the record in the light most favorable to the jury's verdict." State v. Pham , 2015 UT App 233, ¶ 2, 359 P.3d 1284.

      Niece did not testify, but neither party disputes the validity of the recording of the argument between Alires and Wife.

      According to Nurse, blocking oxygenated blood from the brain requires eleven pounds per square inch (PSI) of pressure to the carotid arteries, four PSI of pressure to the jugular veins, or thirty-three PSI of pressure to the trachea. Nurse explained that opening a can of soda takes twenty PSI of pressure, and using just one hand can produce between forty and fifty PSI of pressure. She further testified that if someone were to lift an adult by the neck, the pressure used would "[a]bsolutely" exceed thirty-three PSI of pressure. Utah case law supports the assertion that strangulation-"outside force applying pressure to the neck"-is sufficient evidence of serious bodily injury. See State v. Walker , 2017 UT App 2, ¶¶ 25-26, 30-31, 34, 391 P.3d 380 (clarifying that there is "a distinction between determining whether the evidence [of serious bodily injury by way of strangulation] is sufficient to support a ... conviction and instructing the jury [that strangulation requires a finding of serious bodily injury] as a matter of law...."); State v. Speer , 750 P.2d 186, 191 (Utah 1988) (holding that choking the victim until she "almost passed out" was "force likely to cause death or serious bodily injury" (cleaned up) ); State v. Peterson , 681 P.2d 1210, 1219 (Utah 1984) (noting that placing hands around the neck and applying sufficient pressure to cause a person to black out is force that "could have caused ... death or serious bodily injury"); State v. Fisher , 680 P.2d 35, 37 (Utah 1984) (holding that "strangulation constitutes serious bodily injury" (cleaned up) ).

      At times, this court has been inexact when explaining the standard of review in cases where the trial court has refused to give a self-defense jury instruction, see , e.g. , State v. Dozah , 2016 UT App 13, ¶ 12, 368 P.3d 863 (reviewing the "district court's refusal to give a requested jury instruction for correctness"), but our supreme court has been relatively clear and thus, we follow its lead, see State v. Berriel , 2013 UT 19, ¶¶ 9-10, 299 P.3d 1133 ("A district court's refusal to instruct the jury on a defendant's theory of the case presents questions on both sides of the spectrum. The issue of whether the record evidence, viewed in its totality, supports the defendant's theory of the case is primarily a factual question.... Trial courts are better factfinders than appellate courts.... In contrast, the issue of whether to instruct the jury on a theory that is supported by the evidence presents a legal question.... In those circumstances, refusal constitutes an error of law, and an error of law always constitutes an abuse of discretion." (cleaned up) ).

      Alires also suggests the possibility of structural error, which we reject in full. "[A] defendant claiming constitutional error who did not object at trial may only argue plain error ... on appeal and thus must prove prejudice, even if the constitutional error claimed on appeal is structural in nature." State v. Cruz , 2005 UT 45, ¶ 18, 122 P.3d 543. Here, we conclude that prejudice has not been shown and, accordingly, any error was harmless. See supra Part II.

      The relevant statutory provisions have been amended since the time of the offenses. We therefore refer to the version of the Utah Code in effect in 2015.

      While the threshold showing necessary to entitle a party to an instruction is a relatively "low[ ] bar," State v. Garcia , 2017 UT 53, ¶ 44, 424 P.3d 171 (stating that a party is entitled to a self-defense instruction if there is "any reasonable basis in the evidence" to justify it (cleaned up) ), we note-without deciding the issue-that the evidence presented to the jury weighs against Alires. "[A] court need not instruct the jury on the requested affirmative defense where the evidence is so slight as to be incapable of raising a reasonable doubt in the jury's mind as to whether the defendant acted in accordance with that affirmative defense." State v. Burke , 2011 UT App 168, ¶ 81, 256 P.3d 1102 (cleaned up).


text:
    STATE of Utah, Appellee, v. Daniel Jay FOLSOM, Appellant.
    No. 20160739-CA
    Court of Appeals of Utah.
    Filed January 25, 2019
    David M. Corbett, South Jordan, Attorney for Appellant
    Sean D. Reyes and Jeffrey S. Gray, Salt Lake City, Attorneys for Appellee
    Judge Jill M. Pohlman authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.
    Opinion
   POHLMAN, Judge:

¶1 Daniel Jay Folsom appeals his conviction for murder. He contends that the trial court erred in denying him access to the victim's medical records, in making certain evidentiary decisions, and in refusing his request for an instruction on the lesser included offense of negligent homicide. He also raises alternative claims of ineffective assistance of counsel related to the court's evidentiary decisions. We affirm.

BACKGROUND

¶2 Folsom and his girlfriend (Victim) had a rocky eleven-year romantic relationship, during which time Folsom struggled with alcohol abuse. After one of many fights that turned physical, Victim died from injuries inflicted by Folsom. The State charged Folsom with murder. Folsom claimed that he acted in self-defense.

Folsom's Request for Access to Victim's Medical Records

¶3 Before trial, Folsom moved the court to order subpoenas for the production of Victim's psychiatric and mental health records and requested that the court review those documents in camera. In support, Folsom alleged that Victim had been taking various medications to treat her issues with anger and rage, and that the requested records would "further document the existence of [Victim's] violent attacks and bolster the self defense claim with respect to the reasonable belief as to the violent nature of [Victim] and the danger she posed." Although the trial court initially granted Folsom's motion, it later denied the requested relief after one of Victim's representatives objected. The court concluded that Folsom had "not made a sufficient showing ... that the requested records are reasonably certain to contain exculpatory evidence favorable to his defense," and the court therefore refused to permit "a fishing expedition." The court also refused to allow for an in camera inspection of the records and denied Folsom's requests to reconsider.

The State's Case-in-Chief

¶4 The case proceeded to trial, where Folsom and Victim's next-door neighbor (Neighbor) testified for the State. Neighbor testified that around 11:30 p.m. to 11:45 p.m. on December 15, 2011, he heard a knock on his door. When he opened the door, Neighbor found Victim sitting on his porch dressed only in a jacket and pajama bottoms. Victim said, "I need help," and then said, "Dan." Neighbor asked, "Dan did this?" Victim responded, "Yeah. I need help. ... He is out of control." Neighbor invited Victim inside his house, and he had to assist her because she was having difficulty standing. Neighbor also noticed that Victim's hair was "wet and matted," and her face was "pink and swollen" and covered in blood. Neighbor perceived that Victim was in "bad shape" and "in obvious pain," as she "wheez[ed] and groan[ed]" while trying to speak. Victim stated, "I don't know if we should call the police." After Neighbor laid Victim down on the couch, Neighbor's wife entered the room. Neighbor's wife testified Victim was "moaning" and in pain, and though Victim "couldn't speak coherently," Victim did say that "he was out of control." Neighbor called 911.

¶5 The responding paramedic testified that Victim had "some physical, obvious trauma to her face," including a bloody nose and split lip, and that she complained of pain in her left rib cage. When he asked Victim what happened, she said she had been assaulted with fists for "a long time." While transporting Victim to the hospital, the paramedic became concerned that Victim had a head injury. A few days later, Victim died.

¶6 The medical examiner who performed Victim's autopsy testified that he observed "a number of blunt-force injuries" on Victim's body, including her face, scalp, arms, legs, and the backside of her torso. He opined that "[p]retty much all of her injuries appeared recent." Although she had an older bruise on her chest, she had several recent bruises on her back and buttocks. She also had bruises and scrapes on her face, legs, feet, arms, and hands, along with bruises and swelling on the back side of her ear. Victim had two lacerations on the back of her head but had no skull or facial fractures. According to the medical examiner, none of Victim's injuries suggested the use of a weapon or instrument. He was "not aware that anything was wielded against [Victim] or that ... she ran into anything."

¶7 The medical examiner certified Victim's death as "due to blunt injuries of her head." While most of her surface injuries were "in and of themselves nonlethal," the medical examiner opined that "at some point a blow to the head caused [Victim] to start bleeding in her head, and that's what started the cascade of events that ultimately led to her death." He did not know whether a single impact or many ultimately caused Victim's death, but he stated, "Certainly, she has multiple impacts to her head." He posited that Victim's injuries likely occurred while she was moving. As for the two lacerations at the back of her head, the medical examiner testified that those injuries could be explained as resulting from her falling backward into an object. The medical examiner stated that the scrapes on Victim's knees and elbows could have been caused by crawling over bare ground or "from any number of other things."

¶8 The medical examiner concluded that Victim's manner of death was homicide. In his autopsy report, he opined that Victim "died as a result of blunt force injuries of the head sustained when she was beaten by an assailant." Based on the nature and "extent of the injuries," the medical examiner testified that "this is not something that [Victim] could have done accidentally."

¶9 An officer who was dispatched to respond to Neighbor's 911 call (Officer) testified about his interaction with Folsom that night. After officers knocked on the door to Victim and Folsom's house, Folsom came to the door, "sweating" and with "steam coming off of him." Officer saw cuts on Folsom's forehead and under his eye. Officer observed "multiple spots" of what appeared to be wet blood "all across" the upper chest area of the sweatshirt Folsom was wearing. According to Officer, the amount of blood on the sweatshirt was not consistent with Folsom's own injuries. When Officer asked Folsom about the blood and his injuries, Folsom said that he "had eaten a lot of hamburgers" and that he had gotten sick. Officer also observed that Folsom was intoxicated, had "slurred speech," and had "heavy feet," which caused him to stumble "a little bit."

¶10 The State presented evidence that when investigators searched Folsom and Victim's house, they discovered red-brown stains on the walls, the floor, the staircase railing, and other items. Loose hair was found near the stains and around the house, including "a large chunk of hair" on the floor in the master bedroom. The bathroom was "disheveled," with the toilet seat chipped, broken, and appearing to have been forcefully removed. Other items in the house were broken or knocked over, including a vase, perfume bottles, and a hair clip with hair still in it. The State also offered evidence confirming the presence of blood on Folsom's sweatshirt as well as on surfaces in the bathroom and hallway. Further, Victim's DNA profile matched samples taken from Folsom's sweatshirt and various bloodstains in the house.

¶11 The State also offered character witnesses. First, the State called Victim's mother (Mother). Without objection from the defense, Mother testified that after Victim visited Folsom around Thanksgiving 2010, Victim had a black eye. When Mother asked Victim what happened, Victim answered, "I made Dan mad." Mother also opined that Victim was not a violent person but that Folsom was.

¶12 Second, one of the couple's longtime friends (Sponsor) testified, acknowledging that he had served as Folsom's ostensible sponsor in a group for recovering drug and alcohol addicts. Sponsor described Folsom and Victim's relationship as "[t]umultuous," with some "periods of fighting," but Sponsor never personally witnessed them fight. At times, Sponsor had helped Folsom get and stay sober "for a little while," though Folsom would "go back to drinking," and Folsom and Victim would "start fighting again."

¶13 According to Sponsor, he received phone calls on a couple of occasions that prompted him to go to Folsom and Victim's house. One of those times, around 2004, Sponsor tried to help Victim leave and go to a women's shelter after a fight. Victim was "scared," but Sponsor convinced Victim to follow him in her own car to the shelter. Although Victim followed him for a time, she stopped following him and changed course when they came within a few blocks of the shelter.

¶14 Sponsor testified that he last saw Victim around September 2011 when he crossed paths with Victim and Folsom in a store parking lot. During this encounter, Sponsor noticed that Victim had a black eye. Over defense counsel's hearsay objection, Sponsor testified that he asked Victim what had happened, and Victim "said she got [the black eye] playing baseball." Sponsor did not believe Victim's explanation.

Folsom's Testimony

¶15 Folsom testified in his defense at trial, offering his recollection of that December night. Folsom testified that when he got home early from work, about 4:30 to 5:00 p.m., Victim was "not saying a whole lot," making Folsom think that she was mad at him. Folsom had several drinks at home before he went over to a friend's (Friend) house for the evening. While there, he had more beer with Friend, and they started doing shots of whiskey until they finished the bottle. Folsom and Friend then visited the liquor store and picked up another bottle of whiskey. After returning to Friend's house, they resumed drinking "shot after shot."

¶16 Folsom did not remember returning to his home that night, but he recalled "feeling kind of startled" and "blocking fists." He remembered Victim hitting him in the head, but he did not know if it was with a fist. In response, Folsom "block[ed] shots," "grabb[ed] her and push[ed] her away," with Victim "going this way and going that way." Folsom tried to restrain her by grabbing her by her hands, shoulders, and midsection.

¶17 Folsom's next memory is of Victim "jumping on top of [him] and punching [him]" while he was lying on the bed. Folsom tried to "pull her off" and was able to wrestle with her, flipping her over so that he was on top. He did not remember what happened with Victim after that. Folsom testified that he sustained scratches to his face, a bad cut on his nose, and lumps on his forehead that lasted about a week.

¶18 Folsom did not remember his interactions with police that night but only recalled seeing emergency personnel in the direction of Neighbor's house and having his blood drawn. He stated that he loved Victim and never thought about causing her significant physical harm.

¶19 Folsom also testified generally about his relationship with Victim, stating that "when it was good, it was way good," and "[w]hen [it] was bad, it was way bad." According to Folsom, the couple would have "real bad" arguments "almost like clockwork every two weeks," and Victim would "blow up," "throw things" like pots and pans, "break things," and "slap" him. Folsom stated that from 2001 to 2003, when Victim was "really upset," she would "charge [him] with her fists going" and hit him in the chest, while he would threaten to call 911. From 2004 to 2007, the couple's "blowouts got closer together"; Victim was "full of anger" and "would get out of control," and the police were called several times.

¶20 When asked whether he was violent with Victim, Folsom testified about one "altercation" that occurred in 2004, when he tried to leave on his bike and they had "a tug of war" over the bike and a bottle of alcohol, resulting in Victim falling to her knees. From 2006 to 2009, the violence "escalated," especially in 2009 when Victim pulled a knife and shotgun on him-an event that resulted in Folsom obtaining a protective order against Victim until they got back together. And from 2009 through 2011, her violence was even "[w]orse."

¶21 Folsom introduced evidence that, over the course of their relationship, the police were called eleven times, with Folsom making nine of those calls. To explain why he made those calls, Folsom stated, "I was afraid of what she might do because she's lied before and it's gotten me in trouble, bad trouble. ... I'm also afraid of what she might do to me."

¶22 On cross-examination, the prosecutor asked Folsom what Victim had lied about to police in relation to the 2004 incident involving the bike. Over defense counsel's objection on hearsay grounds, Folsom said, "[Victim] lied about me choking her and threatening to kill her, she lied about that." The prosecutor also questioned Folsom about an incident on Thanksgiving 2009. Folsom admitted that he was arrested that day after he had been drinking and the police had been called to the couple's house. When asked what lies Victim had told about that incident, Folsom responded, "She said that I held her at gun point. ... I believe she said that I pistol-whipped her. That's not true."

¶23 When asked about the nine times that he had called the police, Folsom testified that around January 2004 Victim had punched him twice in the chest and that she was charged with "domestic violence disorderly conduct." He also described a call he made in July 2002 because Victim punched him, testifying that on that occasion Victim "lied about [him] pushing her." With regard to all the other calls he made, Folsom explained that even though Victim had not done anything violent, he made the calls because of "[e]scalating arguments" with Victim that he believed "were always on the verge of violence," and he would tell the police that he did not "know what [she was] going to do." In responding to those calls, the police explained to him "once or twice" the difference between civil and criminal matters.

¶24 Turning to the night in question, December 15, 2011, the prosecutor asked Folsom, "Based on your testimony, you would agree that the injuries [Victim] sustained that night were inflicted by you?" Folsom answered, "Yes." Folsom stated that he did not remember his intent in inflicting those injuries. He acknowledged that he remembered being punched and trying to block those punches and that his intent in blocking those punches was to defend himself. The prosecutor asked Folsom to confirm that after he returned home from Friend's that night, Folsom "blacked out until [he] came to defending [himself]," to which Folsom responded, "That's correct."

Other Witnesses for the Defense

¶25 In his defense, Folsom offered testimony relevant to his alcohol consumption on the night of December 15. He called Friend, who testified that Folsom was with him from about 5:00 or 5:30 p.m. until 10:00 or 10:30 p.m. According to Friend, during that time, Folsom drank five or six beers, and they shared a bottle of whiskey. Folsom also called a forensic toxicologist to testify. The toxicologist testified that using Folsom's blood alcohol content that was measured at 7:04 a.m. on December 16, he calculated that Folsom's blood alcohol content was around .2 or .22 at 11:40 p.m. when the police arrived at Folsom's house on December 15. Because chronic alcoholics like Folsom burn off alcohol at a higher rate, the toxicologist opined that Folsom's blood alcohol content could have been as high as .31 at 11:40 p.m.

¶26 Folsom also presented character witnesses. He called two of Victim's relatives (collectively, Relatives). One of them opined that Victim was a violent person, and the other opined that Victim "carrie[d] a lot of anger and ... [could] be very violent" but that Folsom is nonviolent. He called two other long-standing acquaintances. The first acquaintance testified that Folsom is not violent but that Victim was "semiviolent." The second acquaintance testified that Folsom is not a violent person and that he had "never seen [Folsom] attempt to hurt anyone." The second acquaintance had never seen Victim attempt to hurt anyone either.

¶27 Finally, the defense presented evidence of Folsom's interview with police on the night in question. When police asked Folsom how he was doing that night, he said, "I'm doing good," and repeatedly denied knowing why he was being interviewed. When police asked Folsom to describe his relationship with Victim, he said that it had been "pretty good lately"; though he referred to problems in the past, he said they had "gotten past all of that" and were "doing good." Folsom stated that he had spent a few hours with Friend that evening, and while he admitted that he had a few beers before going to Friend's house, he denied that he drank more there. Folsom said that when he returned home that night, he thought Victim was asleep upstairs, and he stayed downstairs and watched TV. Folsom explained that the stains on his sweatshirt might have come from walking into a wall in the kitchen. When informed that the ambulance went to Neighbor's house for Victim, Folsom asked if she was "okay" and if she was "alive." Folsom told the police that he did not know what happened, but he also stated, "For all I know, she could have fell down," and, "I didn't touch anybody. I didn't do anything. I know that much."

The State's Evidence in Rebuttal

¶28 The State presented rebuttal evidence. It offered a video of Folsom sitting alone in the police station interview room after the interview had ended. Folsom looked down at his hands and said to himself, "I never touched her." After two minutes, he again looked at his hands and repeated, "I never touched her." Then, after another two minutes passed, Folsom said to himself, "I only touched her once."

¶29 Also in rebuttal, the State recalled Officer, who had interviewed Folsom on December 15. Without an objection from the defense on character evidence grounds, Officer testified that he had been dispatched to the couple's home in August 2004. During that assignment, Officer spoke with Victim and noticed several injuries on her body, including "various abrasions," "a chipped tooth," a "broken fingernail," injuries on both arms, a skinned knee or leg, an abrasion on her back, and "redness around her neck area." He testified that the pink coloration he observed "all the way across" Victim's neck was "consistent with strangulation." The State also offered into evidence several photographs of Victim in August 2004 showing the injuries that Officer described. Defense counsel stipulated to the admission of those photographs.

¶30 The State concluded with a final rebuttal witness, Victim's former spouse (Ex-husband). Ex-husband testified that Victim was never violent during their relationship and that she was "not violent at all." Over defense counsel's objections based on relevance and hearsay grounds, Ex-husband testified that, when he last spoke to Victim in October 2011, he asked her why she kept going back to Folsom, and Victim responded that Folsom "was sorry, he was going to get help, and do whatever it takes."

Folsom's Proffered Evidence That Was Excluded

¶31 Folsom attempted to adduce evidence regarding two types of instances when Victim purported to admit to assaulting Folsom. First, Folsom proffered to the court that Relatives would testify that Victim admitted to them that on more than one occasion she beat Folsom with various objects after he had passed out drunk. Second, Folsom proffered that a coworker (Coworker) would testify that Victim had admitted to attacking Folsom and pulling out some of his hair.

¶32 Folsom urged the court to admit the proffered testimony as statements against penal interest pursuant to rule 804(b)(3) of the Utah Rules of Evidence. The court denied Folsom's request. It reasoned that Victim's statements to Relatives did not have "sufficient reliability" to be admissible under rule 804. As for Victim's statement to Coworker, the court reasoned that, because it did not expose Victim to potential criminal liability, the statement did not qualify as a statement against interest.

The Jury Instructions and Verdict

¶33 Folsom asked the court to instruct the jury on an additional lesser included offense of negligent homicide. The court refused to do so. But the court did instruct the jury on two other lesser included offenses: manslaughter and homicide by assault.

¶34 In addition, the court instructed the jury on several variants of murder, stating that it could find Folsom guilty of murder if he (a) "[i]ntentionally or knowingly caused the death of [Victim]"; (b) "[i]ntending to cause serious bodily injury to [Victim], committed an act clearly dangerous to human life that caused [Victim's] death"; or (c) "[a]cting under circumstances evidencing a depraved indifference to human life, knowingly engaged in conduct which created a grave risk of death to [Victim], and thereby caused [Victim's] death." See generally Utah Code Ann. § 76-5-203 (LexisNexis 2017) (defining murder and its variants). The court also instructed the jury on the defenses of intoxication and self-defense.

¶35 The jury convicted Folsom of murder.

ISSUES ON APPEAL

¶36 On appeal, Folsom asserts two categories of error: errors that bear on the evidentiary picture relevant to his claim of self-defense, and one error regarding the jury instructions on a possible lesser included offense.

¶37 In the first category, Folsom argues that the trial court erred in refusing his request for access to Victim's medical records. Also in this first category, Folsom challenges several evidentiary decisions. He asserts that the trial court erred in excluding, as hearsay, evidence about Victim's alleged prior assaults on him. He also asserts that the court erred in admitting hearsay and character evidence regarding his alleged prior assaults on Victim and, alternatively, that trial counsel rendered constitutionally ineffective assistance in failing to object to that evidence.

¶38 In the second category, Folsom argues that the trial court erred by refusing to instruct the jury on negligent homicide as a lesser included offense of murder.

¶39 To succeed on any of these issues on appeal, Folsom must demonstrate that the claimed errors were harmful, meaning that the errors "affected the outcome of his case." See State v. Reece , 2015 UT 45, ¶ 33, 349 P.3d 712. Similarly, to succeed on his alternative ineffective assistance of counsel claims, he must show that he was prejudiced by his trial counsel's alleged deficient performance. See Strickland v. Washington , 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

ANALYSIS

I. Claims Related to the Evidentiary Picture

¶40 We first set forth Folsom's evidentiary claims and the specific evidence at issue. We next set forth Folsom's related arguments regarding resulting harm and his burden to demonstrate harm. After assuming that Folsom is correct with respect to his evidentiary claims and briefly describing the law of self-defense, we ultimately conclude that Folsom has not shown that he was harmed by any error. The evidence at issue was not reasonably likely to alter the jury's decision about whether Folsom was justified in using force intended or likely to cause death or serious bodily injury. We reach this conclusion chiefly because the overwhelming physical evidence and Victim's significant injuries powerfully demonstrate that Folsom used an unreasonable amount of force against Victim under the circumstances and because much of the evidence at issue is cumulative of other evidence, which allowed the jury to sufficiently consider Folsom's theory of the case. We therefore decline to reverse his conviction based on any of his evidentiary claims.

¶41 Folsom raises three kinds of errors that relate to evidence allegedly relevant to his claim of self-defense. First, he asserts that the trial court erred in denying him "access to [Victim's] medical records to assist in his self-defense claim where reliable evidence suggested that [Victim] received psychiatric medications, at least in part, to treat mental illness that resulted in anger and violence." Under this claim of error, he asserts that Victim's medical "records were relevant to an element of his claim that he acted in self-defense-that he woke up to find [Victim] beating him and took steps to prevent further abuse." According to Folsom, Victim's "fits of anger and rage fueled her violent behavior" and when Victim was not medicated, her "mood swings ... transformed her from a peaceful person into a violent person."

¶42 Second, Folsom asserts that the trial court should have admitted evidence of Victim's statements made to Coworker and Relatives that Victim had previously assaulted Folsom. Specifically, he asserts he should have been able to present Victim's admissions that she had, on more than one occasion, attacked him after he had passed out from intoxication and that another time she had attacked him and pulled out some of his hair. See supra ¶ 31.

¶43 Third, Folsom asserts that the court erred in admitting hearsay and character evidence regarding his alleged prior assaults of Victim and, alternatively, that his trial counsel rendered ineffective assistance in failing to object to that evidence. In particular, Folsom contends that the following evidence ultimately should have been excluded:

• Victim's statement to police, elicited on cross-examination of Folsom, that Folsom had choked and threatened to kill her in 2004, supra ¶ 22;
• Officer's rebuttal testimony that he had responded to the 2004 incident and observed various injuries to Victim, including marks on her neck that were consistent with strangulation, supra ¶ 29;
• photographs of the alleged injuries to Victim after the 2004 incident, supra ¶ 29;
• Victim's statement made to Ex-husband that Folsom was sorry and was getting help, supra ¶ 30;
• Mother's testimony that Victim had a black eye around Thanksgiving 2010 and that Victim explained that she had "made Dan mad," supra ¶ 11;
• Sponsor's testimony that Folsom and Victim fought more when Folsom drank, supra ¶ 12;
• Sponsor's account of coaxing Victim to go to a shelter, supra ¶ 13; and
• Sponsor's testimony about seeing Victim with a black eye in 2011, including her explanation that it came from a baseball game and his disbelief in that innocent explanation, supra ¶ 14.

¶44 When it comes to the question of harm, most of Folsom's claimed errors and claims of ineffective assistance of counsel relate to his self-defense theory that Victim was the initial aggressor in the altercation that led to her death. On his first claim of error, he asserts that, had the court granted his request to access Victim's medical records, he would have been able to present evidence proving Victim's state of mind and to "more effectively cross-examine the multiple witnesses who testified that [Victim] had a peaceful, non-violent character." He also would have used the records "to prove ... that [Victim] was an angry and violent [person] in support of his self-defense claim" and that her "fits of anger and rage fueled her violent behavior." In his view, this evidence "would have carried great weight in resolving credibility issues among the other witnesses" and "would have certainly made it more likely in the minds of the jury that she was the first aggressor."

¶45 On the second and third claims of error, Folsom asserts that the admission of evidence regarding Victim's alleged prior assaults and the exclusion of evidence regarding his alleged prior assaults would have affected the jury's assessment of their characters for peacefulness and violence. With regard to the excluded evidence of Victim's prior assaults of him, he asserts that that evidence went to the "core" of his defense that "he had to defend himself against a physical attack from [Victim] after she attacked him in a compromised, drunken state." Given that Folsom was the only eyewitness to the December 15 incident and the conflicting testimony about Victim's propensity for violence, Folsom argues that character evidence regarding Victim and Folsom "played a large role" in the case, and that the evidence of Victim's prior assaults of him "would have carried great weight in the minds of the jurors."

¶46 With regard to the admitted evidence suggesting that he had previously assaulted Victim, Folsom emphasizes the tendency of that evidence, in contravention of rule 404 of the Utah Rules of Evidence, to prove that he had "acted violently in the past and must have acted in conformity therewith during the fight that led to [Victim's] death." Folsom states that the physical evidence indicated that Victim's injuries were "consistent with mutual combat" and that the fatal injury "could have resulted from a single impact." Folsom then asserts that "[w]here credibility about who was the initial aggressor played a crucial role in the case, this evidence [about Folsom's alleged prior assaults], with its tendency to very strongly prove that [Folsom] was the first aggressor in the past, cannot be harmless." Folsom concludes that "there is no real possibility that the jurors would not believe [he] acted in conformity with his prior conduct and murdered [Victim] rather than acting in self-defense."

¶47 To succeed on appeal, Folsom must demonstrate that the claimed errors were harmful. See State v. Reece , 2015 UT 45, ¶ 33, 349 P.3d 712 ("[T]he defendant generally bears the burden to demonstrate that the error he complains of affected the outcome of his case."); see also Utah R. Crim. P. 30(a) ("Any error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded."). "Harmless errors are those that are sufficiently inconsequential so no reasonable likelihood exists that the error affected the outcome of the proceedings." State v. Courtney , 2017 UT App 172, ¶ 22, 424 P.3d 198 (quotation simplified). On the other hand, harmful errors are those where "the likelihood of a different outcome [is] sufficiently high to undermine confidence in the verdict." State v. Knight , 734 P.2d 913, 920 (Utah 1987). Likewise, to establish prejudice for ineffective assistance of counsel claims, the appellant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; see also State v. Garcia , 2017 UT 53, ¶ 37, 424 P.3d 171 ("[U]nder Strickland , it is the defendant's burden to show that he was prejudiced by his counsel's performance.").

¶48 For purposes of our analysis, we assume, without deciding, that Folsom is correct that the trial court made the alleged evidentiary errors and his trial counsel performed deficiently in not lodging appropriate objections. But we conclude that Folsom has not shown harm, namely, that there is a reasonable likelihood that the trial court's errors and counsel's deficient performance affected the outcome of the case. We reach this conclusion because the staggering physical evidence shows that Folsom used excessive force under the circumstances and because the challenged evidence is cumulative of other admitted evidence. On the record before us, there is no reasonable likelihood that, in the absence of these assumed errors, the jury would have concluded that the State failed to prove beyond a reasonable doubt that Folsom was not justified in using the amount of force that he used against Victim. While the evidence that Folsom claims was either improperly admitted or improperly excluded or made unavailable would have perhaps changed the jury's assessment of whether Victim or Folsom was the first aggressor, that evidence was not reasonably likely to alter the jury's view of whether Folsom was justified in using force intended or likely to cause death or serious bodily injury.

¶49 We begin with a brief outline of the law of self-defense. "A person is justified in threatening or using force against another when and to the extent that the person reasonably believes that force or a threat of force is necessary to defend the person ... against another person's imminent use of unlawful force." Utah Code Ann. § 76-2-402(1)(a) (LexisNexis Supp. 2018). "A person is justified in using force intended or likely to cause death or serious bodily injury only if the person reasonably believes that force is necessary to prevent death or serious bodily injury to the person ... as a result of another person's imminent use of unlawful force, or to prevent the commission of a forcible felony." Id. § 76-2-402(1)(b) ; see also State v. Sherard , 818 P.2d 554, 561 (Utah Ct. App. 1991) (stating that reasonable in the context of the self-defense statute means "objectively reasonable" (quotation simplified) ).

¶50 A person is not justified in using deadly force, however, if the person

(i) initially provokes the use of force against the person with the intent to use force as an excuse to inflict bodily harm upon the assailant; (ii) is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony ...; or (iii) 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.

Utah Code Ann. § 76-2-402(2)(a). The Utah Code specifies that in "determining imminence or reasonableness" of force used in self-defense,

the trier of fact may consider, but is not limited to, any of the following factors: (a) the nature of the danger; (b) the immediacy of the danger; (c) the probability that the unlawful force would result in death or serious bodily injury; (d) the other's prior violent acts or violent propensities; and (e) any patterns of abuse or violence in the parties' relationship.

Id. § 76-2-402(5). When a defendant argues self-defense, the State must "disprove the affirmative proposition of self-defense, not just prove guilt, beyond a reasonable doubt." State v. Garcia , 2001 UT App 19, ¶ 16, 18 P.3d 1123.

¶51 The evidence that Folsom identifies as problematic or improperly made unavailable has a common thread: it would bear on whether Victim was the first aggressor and on whether Folsom or Victim (or both) were violent by nature. We conclude that under the law of self-defense, even if there had been more evidence that Victim was a violent person or was the first aggressor on December 15, 2011, and even if there was less evidence that Folsom was a violent person, there still is no reasonable likelihood that the jury would have found that the State failed to prove that the magnitude of the force Folsom used against Victim was unjustified. The circumstances of this case eliminate any reasonable likelihood that the jury could view Folsom's use of force as reasonable.

¶52 According to Folsom's testimony, he returned home drunk on December 15, 2011, and was "startled" by Victim hitting him. Folsom "block[ed] shots," and tried to restrain Victim by grabbing her hands, shoulders, and midsection. Then, when Folsom was lying on the bed, Victim jumped on top of him and punched him. He pulled her off and wrestled with her, eventually flipping her over so that he was on top. Folsom conceded that he inflicted the injuries that Victim sustained that night. Though Folsom did not recall his intent in inflicting those injuries, he remembered being punched and trying to block those punches and that his intent in blocking those punches was to defend himself.

¶53 The physical evidence overwhelmingly indicates that the degree of force Folsom used in inflicting Victim's injuries was unreasonable. In the altercation with Victim, Folsom-who was ten inches taller and at least seventy pounds heavier than Victim-sustained only scratches to his face, a bad cut on his nose, and lumps on his forehead. But the amount of force he used, purportedly to defend himself against Victim's punches, caused extreme injuries to Victim, including "a number of blunt-force injuries" to her face, scalp, arms, torso, and legs. Supra ¶ 6 & n.1. He also caused blunt force injuries to Victim's head, which ultimately led to her death. Even accepting that Victim attacked Folsom first, considering Folsom's superficial wounds relative to Victim's numerous, serious, and fatal injuries strongly evidences that Folsom responded with a far greater amount of force than was necessary to defend himself in the manner he described.

¶54 Other compelling evidence also contradicts Folsom's position that he responded to Victim's threat with necessary and proportionate force. For example, when taking into account Folsom's considerable size advantage over Victim, Folsom's own trial testimony-that Victim was punching him from above and that he flipped her over so that he was on top-suggests that he was able to restrain her in a relatively short period of time. But when Victim fled to Neighbor's house, her face was swollen and covered in blood, and she told Neighbor that Folsom did it and was "out of control." And when the paramedic was treating her, Victim reported to him that she had been assaulted with fists for "a long time." Thus, Victim's statements strongly indicate that whatever amount of force Folsom used against Victim that night, that force was in excess of the amount necessary to subdue any threat she posed to him. And even assuming Victim was the first aggressor and was a violent person generally, Folsom's description at trial does not support the notion that he was required to act with such aggression to counter Victim's threat. Cf. State v. Berriel , 2013 UT 19, ¶ 14, 299 P.3d 1133 (explaining that force is necessary to defend oneself when it is "absolutely required" and that "the necessary requirement [of section 76-2-402 ] distinguishes wanton violence from force that is crucial to averting an unlawful attack" (quotation simplified) ).

¶55 Further, Folsom's own initial explanations of the night undermine his theory at trial that he used reasonable force in self-defense. He did not tell Officer that Victim had attacked him and, in fact, implied that the wet stains on his sweatshirt were ketchup instead of blood. Likewise, Folsom's initial interview with police did not suggest that he had experienced a life-threatening event. Folsom instead stated that his relationship with Victim was "pretty good lately" and that they had "gotten past" their problems. Yet at trial, Folsom characterized their relationship as either "way good" or "way bad" and described Victim's violence against him as worsening during the two years leading up to Victim's death. Folsom asserts that the challenged evidence would have affected the jury's resolution of whether Victim was the first aggressor. But even assuming that Victim was the first aggressor, Folsom has not persuaded us-given, among other things, the inconsistencies in his accounts-that the challenged evidence would have changed the jury's evaluation of the question of the reasonableness of Folsom's force.

¶56 It is also important that, contrary to Folsom's version of events at trial, the altercation did not appear confined in time or place. The couple's house was disheveled, with numerous items broken and misplaced, and Victim's loose hair, including a "large chunk" of it, was found on the floor. Notably, Victim's blood was stained throughout the house-on the walls, the floor, the staircase railing, and other items. Moreover, Folsom's sweatshirt had Victim's wet blood all across the upper chest area. In light of this physical evidence from the crime scene as well as Victim's extensive injuries, we see no reasonable likelihood that the jury would have concluded that the State failed to disprove that Folsom's force against Victim was "necessary to prevent death or serious bodily injury." See Utah Code Ann. § 76-2-402(1)(b).

¶57 Additionally, Folsom's prejudice arguments focus too narrowly on the supposed fatal blow rather than on the overall magnitude of his force against Victim. He suggests that Victim's fatal injury could have been the result of a single impact, like a fall or by hitting her head on a door molding. In support, he explains that Victim had no skull or facial fractures, that no weapon was used, and that Victim's injuries were consistent with mutual combat. Though the medical examiner acknowledged that two lacerations at the back of Victim's head could be explained as the result of falling backward into an object, he also testified that the nature and extent of Victim's injuries were consistent with her having been involved in an altercation and that "this is not something that she could have done accidentally." Rather, he concluded in his autopsy report that Victim "died as a result of blunt force injuries of the head sustained when she was beaten by an assailant."

¶58 Folsom admits that he caused Victim's injuries, but in arguing that the assumed errors prejudiced him, he does not address the location of those injuries. Extensive backside injuries to her body, arms, hands, and head are less consistent with Folsom's theory that Victim merely fell backward once. Instead, the backside injuries are more consistent with the State's theory that Folsom struck Victim when she faced away from him and when she was curled up protectively on the ground. Considering the medical examiner's testimony as a whole, along with the bloodstains on Folsom's sweatshirt and throughout the house, the jury was not reasonably likely to have concluded that Folsom caused Victim's fatal injury inadvertently or that Victim's fatal injury was the unfortunate consequence of a limited and reasonable use of force.

¶59 Our conclusion holds even if we assume that the jury concluded Victim was a violent person and was the first aggressor that night. As an initial matter, a lot of evidence supporting Folsom's theory was already in the record. Folsom testified that in the past Victim had struck him, thrown things at him, and once pulled a gun on him, and that not only had he called police about her nine different times, but that he had once obtained a protective order against her and that on one occasion Victim was actually charged with domestic violence. In the context of this already admitted evidence of Victim's violent propensity, Folsom sought to introduce additional proffered evidence of Victim's other attacks against him, which included Victim pulling his hair and beating him with various objects. Supra ¶¶31-32.

¶60 The proffered evidence was mostly cumulative of his testimony regarding Victim's past treatment of him, and the jury already understood from other admitted evidence that Victim and Folsom's relationship was volatile. And, in any event, there is no evidence reasonably supporting the conclusion that the force Victim used against Folsom-punches-on December 15, 2011, threatened Folsom with death or serious bodily injury and that therefore Folsom feared for his life and his use of force against Victim was necessary to prevent death or serious bodily injury. See Utah Code Ann. § 76-2-402(1)(b). In other words, even if the jury had heard additional evidence of Victim's "prior violent acts or violent propensities" and of "patterns of abuse or violence" in Victim and Folsom's relationship, the jury's determination regarding the reasonableness of Folsom's force would not be reasonably likely to have changed. See id. § 76-2-402(5)(d), (e).

¶61 In short, the evidence overwhelmingly shows that Folsom's response was not measured and appropriate, regardless of whether the jury concluded Victim had a violent personality or was the first aggressor that night and regardless of whether the jury concluded Folsom used nonlethal force against her in the past. Folsom has not shown that, but for the claimed errors and deficient performance of counsel, the evidentiary picture would have been altered in a meaningful enough way. That is, there is no reasonable likelihood that the jury would have concluded that the State failed to prove beyond a reasonable doubt that Folsom was not justified in using against Victim the amount of force that he used. As a result, we decline to reverse Folsom's conviction based on these alleged evidentiary errors and ineffective assistance of counsel.

II. Lesser Included Offense Instruction

¶62 Folsom contends that the trial court erred by refusing to instruct the jury on negligent homicide as a lesser included offense of murder. In so arguing, he maintains that he was "entitled to an instruction on the lesser-included offense of negligent homicide where there [was] a rational basis for a verdict acquitting [him] of the charged offense [of murder] and convicting him of the included offense." Folsom further asserts in his opening brief that the failure to provide the negligent homicide instruction was harmful and thus requests a new trial.

¶63 The State responds that "any error ... is harmless where the jury was given a lesser-included manslaughter instruction but the jury nevertheless found [Folsom] guilty of murder" and asserts that, in this regard, State v. Daniels , 2002 UT 2, 40 P.3d 611, is dispositive of Folsom's claim of error. In his reply brief, Folsom agrees with the State. He states that in Daniels , "the Utah Supreme Court ... ruled that, where a jury has rejected a lesser-included offense, a defendant cannot show harm for a trial court's failure to instruct the jury on a lesser-included offense of the rejected lesser-included offense." See generally Daniels , 2002 UT 2, ¶ 28, 40 P.3d 611 ; State v. Allen , 839 P.2d 291, 302 (Utah 1992) (concluding that the failure to give a lesser included offense instruction of negligent homicide was harmless because the jury convicted on murder even though it was also instructed on the lesser included offense of manslaughter); State v. Gotschall , 782 P.2d 459, 463-64 (Utah 1989) (holding that if a jury is instructed on second degree murder and manslaughter and convicts the defendant of second degree murder, even if the trial court's failure to instruct the jury on negligent homicide was in error, such error is harmless), abrogated on other grounds by State v. Doporto , 935 P.2d 484 (Utah 1997).

¶64 In light of this precedent, Folsom requests only that, "in the event that this Court reverses the case for a new trial on other grounds, ... the order include an instruction that the trial court provide a negligent homicide instruction upon retrial for the reasons stated in [his] opening brief." Given Folsom's agreement with the State on this point, and because we have determined that Folsom's other claims of error do not warrant reversing this case for a new trial, we need not further address Folsom's argument regarding the jury instructions.

CONCLUSION

¶65 Although Folsom raises a number of claimed errors on appeal, he has not shown that those claimed errors prejudiced him. As a result, we decline to reverse his conviction and therefore affirm.

      The medical examiner's report was admitted into evidence along with many pictures of Victim's injuries. The report documented in excess of fifty distinct and measurable injuries, many of substantial size.

      Victim's former coworker also testified that Victim was not a violent person.

      One of the relatives also testified that Victim "bruised very easily."

      Rule 804(b)(3) provides that when the declarant is unavailable, a statement is not excluded as hearsay if the statement is one that "(A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency ... to expose the declarant to civil or criminal liability" and "(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability." Utah R. Evid. 804(b)(3).

      Folsom briefly seeks to invoke the cumulative error doctrine, asking this court to "consider the cumulative effect of the various errors complained of in this appeal." Under the cumulative error doctrine, an appellate court "will reverse a jury verdict ... only if the cumulative effect of the several errors undermines [its] confidence that a fair trial was had." State v. Martinez-Castellanos , 2018 UT 46, ¶ 39, 428 P.3d 1038 (quotation simplified). In applying this doctrine, the appellate court "should consider all the identified errors, as well as any errors we assume may have occurred." Id. ¶ 40 (quotation simplified). The doctrine will not be applied, however, where the errors, even considered collectively, "are found to be so minor as to result in no harm." Id. (quotation simplified). Here, we assume a number of errors and have concluded that the claimed errors, even viewed collectively, were "so minor as to result in no harm." See id. (quotation simplified).

      Because recent amendments to this statute are not material to our analysis, we cite the current version.

      Even if the jury accepted Folsom's theory that Victim was the first aggressor, the jury would still need to resolve "whether [Folsom's] killing of [Victim] was reasonable and necessary to defend himself against [Victim's] imminent use of unlawful force." See State v. Knoll , 712 P.2d 211, 215-16 (Utah 1985) (quotation simplified) (explaining that even where the victim "first used defendant's undrawn knife to commit the first stabbing," the jury "could justifiably conclude beyond a reasonable doubt that the defendant did not commit the homicide in self-defense because defendant's acts went beyond what was reasonably necessary to defend himself"). We conclude that Folsom has not shown that there is a reasonable likelihood that the assumed errors would impact the jury's determination of the reasonableness of the amount of force Folsom used.

      In addition to the testimony at trial, the jury had before it pictures of Folsom's injuries and pictures of Victim's injuries.

      See also 2 Wayne R. LaFave, Substantive Criminal Law § 10.4(b) (3d ed. 2017) (explaining that "[p]ast violent conduct of the assailant known by the defendant is also relevant in assessing what the defendant reasonably believed was the quantum of risk to him" and that generally "deadly force may only be used against what is reasonably believed to be deadly force"); id. ("He may justifiably use deadly force against the other in self-defense, however, only if he reasonably believes that the other is about to inflict unlawful death or serious bodily harm upon him (and also that it is necessary to use deadly force to prevent it)." (quotation simplified) ); id. § 10.4(f) ("[O]ne may not, in self-defense, use more force than reasonably appears to be necessary to avoid his adversary's threatened harm.").