State v. Argueta

2018 UT App 142
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
C ARLOS WALTER A RGUETA,
Appellant.
Opinion
No. 20160565-CA
Filed July 27, 2018
Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 151906605
Marshall M. Thompson and Diana Pierson,
Attorneys for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee
JUDGE K ATE A. TOOMEY authored this Opinion, in which J UDGES
GREGORY K. O RME and JILL M. POHLMAN concurred.
TOOMEY, Judge:
Carlos Walter Argueta was convicted of burglary and	¶1
forcible sexual abuse, both second degree felonies. See Utah
Code Ann. §§ 76-6-202, 76-5-404 (LexisNexis 2017). He appeals
his convictions, and we affirm.

State v. Argueta
20160565-CA 	2 	2018 UT App 142
BACKGROUND1
In June 2015, Victim and her Boyfriend were socializing	¶2
with 	friends 	in 	their 	neighbor’s 	backyard. 	Sometime 	after
midnight Victim decided to go to bed, and she returned to her
apartment while Boyfriend continued to socialize.
Victim and Boyfriend lived in a studio apartment in a	¶3
building with four apartments. Victim left her keys in her front
door lock—which automatically locked whenever the key was
removed—so that Boyfriend could enter the apartment after she
was asleep. She undressed and eventually fell asleep with her
back to the door.
Somewhere between “deep sleep and still aware,” Victim	¶4
felt someone rubbing her buttocks and stroking her vagina. She
initially thought Boyfriend was touching her, but realized it was
someone else when she heard Boyfriend say, “Who the fuck are
you?” 	over 	and 	over. 	Victim 	sat 	up 	and 	saw 	Boyfriend
confronting another man in the apartment. She told Boyfriend
the man had touched her and Boyfriend pushed the man against
the dresser and told Victim to summon their neighbors.
The man tried to escape, apologized, and said that he had	¶5
been looking for a bathroom. Boyfriend and the man wrestled
into the hallway where Boyfriend tried to pin him against the
wall. The man made it out the door of the apartment building
and tried to run toward the street, but Boyfriend caught him
and, with the help of two other men, pinned him down on the
front lawn until the police arrived and arrested him. The man
was Argueta.
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.”
State 	v. 	Holgate, 	2000 	UT 	74, 	¶ 	2, 	10 	P.3d 	346 	(quotation
simplified). “We present conflicting evidence only as necessary
to understand issues raised on appeal.” Id.

State v. Argueta
20160565-CA 	3 	2018 UT App 142
According to Argueta’s testimony at trial, he met Victim	¶6
and her previous boyfriend at a bar eighteen months before the
incident. They talked and drank until the bar was about to close.
Argueta gave them a ride home to the same apartment building
involved in this case, and he loaned the boyfriend twenty
dollars. The boyfriend told Argueta he could come collect the
money whenever he wanted.
Argueta testified he tried to collect the money five or six	¶7
times over the next year and a half. He stated that on the night of
this incident, he was in the area and decided to try again to
collect his twenty dollars. He went to Victim’s apartment and
saw that the door was slightly open and the keys were in the
lock. He decided to put the keys inside the apartment as a “good
deed.” Argueta testified he put the keys on the dresser and as he
was 	turning 	back 	toward 	the 	door, 	Boyfriend 	entered 	the
apartment.
After 	Argueta’s 	arrest, 	a 	police 	officer 	(Officer) 	gave	¶8
Argueta his Miranda rights and had him sit on the curb while
Officer 	questioned 	Victim. 	Though 	Officer 	had 	not 	asked
Argueta any questions, Argueta overheard Victim saying he had
touched her, and Argueta volunteered that she was “lying,” that
he met her at a bar, and that he merely left the keys in the
apartment.2
2. Argueta initially recounted a different version of these events.
Specifically, in his opening brief he asserts that “[b]efore he was
arrested and read his rights, [he] spoke briefly with the police,”
explaining that he met Victim before this incident and that he
found the keys in the door. “The police officers then read [him]
his rights, and he chose to remain silent thereafter.” Argueta
cites his testimony at trial as a basis for this sequence of events.
In his reply brief, Argueta, relying on Officer’s testimony, states
that he “was arrested, was read the Miranda warnings, and chose
to remain silent before making a few limited statements to
(continued…)

State v. Argueta
20160565-CA 	4 	2018 UT App 142
At a pretrial hearing in this case, the State, under rule	¶9
404(b) of the Utah Rules of Evidence, sought to admit evidence
of several of Argueta’s prior acts. The district court ruled that
although the acts were not admissible in the State’s case in chief,
two of them would be admissible in rebuttal if Argueta testified
during trial “as to his intent with regard to his entry, if any, into
[Victim’s] residence.” The evidence involved a 2010 incident in
which Argueta was found trespassing near another woman’s
house (the trespassing incident) and a 2014 incident in which
Victim saw Argueta looking in the window of her apartment
(the peeping incident).
After a two-day trial, a jury convicted Argueta of burglary	¶10
and forcible sexual abuse, and the court sentenced Argueta to
two concurrent terms of one to fifteen years in prison. Argueta
appeals.
ISSUES AND STANDARDS OF REVIEW
Argueta raises several issues on appeal. First, he contends	¶11
the prosecutor violated his constitutional right to remain silent.
“Though underlying factual matters are within the discretion of
the [district] court, whether a given set of facts gives rise to a
constitutional violation is a matter of law,” which we review for
correctness. State v. Maas, 1999 UT App 325, ¶ 13, 991 P.2d 1108.
The second and third issues involve Argueta’s contention	¶12
that 	the 	district 	court 	erred 	by 	admitting 	evidence 	of 	the
(…continued)
police.” When asked about this discrepancy at oral argument,
Argueta’s counsel agreed with the State that Argueta made his
statements post-Miranda. Thus, both parties acknowledge the
sequence of events that we recount here: Argueta was arrested,
given the Miranda warning, and thereafter made statements to
the police.

State v. Argueta
20160565-CA 	5 	2018 UT App 142
trespassing and peeping incidents under rules 404(b) and 403 of
the Utah Rules of Evidence. We review the district court’s
decision to admit or exclude evidence for an abuse of discretion.
State v. Lowther, 2017 UT 34, ¶ 17, 398 P.3d 1032.
Next, Argueta contends his trial counsel was ineffective	¶13
because he failed to make several renewed objections with
respect to the rule 404(b) evidence and failed to move for a
mistrial. 	Whether 	trial 	counsel 	was 	ineffective 	presents 	a
question of law. State v. Doutre, 2014 UT App 192, ¶ 9, 335 P.3d
366.
Finally, Argueta contends the cumulative effect of these	¶14
errors requires reversal. “Under the cumulative error doctrine,
we apply the standard of review applicable to each underlying
claim or error and reverse only if the cumulative effect of
multiple errors undermines our confidence that a fair trial was
had.” State v. White, 2016 UT App 241, ¶ 14, 391 P.3d 311
(quotation simplified).
ANALYSIS
I. The Alleged Doyle Violation
First, 	Argueta 	contends 	the 	prosecutor 	violated 	his	¶15
constitutional right to remain silent by using his silence to
impeach his testimony at trial, in violation of Doyle v. Ohio, 426
U.S. 	610 	(1976). 	Argueta 	argues 	the 	prosecutor 	improperly
questioned him “about his post-arrest silence” and then drew
“negative inferences from that silence throughout the remainder
of the trial.”
A. 	Additional Background
During trial, the prosecutor asked Argueta about his	¶16
interaction with the police and had the following exchange with
him:

State v. Argueta
20160565-CA 	6 	2018 UT App 142
Q: Mr. Argueta, you said that the officer said,
“What happened?” and you tried to explain. Is that
correct?
A: Yes.
Q: But everything you’ve just told us for the last 25
minutes you did not tell the officer, did you?
A: I told him about the keys.
Q: You told him that you put the keys inside the
apartment, right?
A: Yes.
Q: Didn’t tell him about meeting the boyfriend?
A: He never asked. He said that he was going to
read my rights to me.
Q: You said you were going to explain. You just
said you explained, right?
A: I explained to him what I just mentioned.
Q: Just about the keys?
A: That I had met [Victim] before. That’s all.
Q: Just the one statement, right?
A: Because he did not want to hear any more.
Q: The officer stopped you from talking?
A: He told me that he could read my rights.

State v. Argueta
20160565-CA 	7 	2018 UT App 142
Later, the prosecutor continued questioning Argueta:	¶17
Q: So, Mr. Argueta, you said the officer asked you
to explain what happened and you told him two
things, correct?
A: Yes.
Q: You told him you left the keys in the apartment;
is that correct?
A: I told him to go check where I had left the keys.
Q: And you said that you met [Victim] at a bar?
A: Correct.
Q: 	You 	did 	not 	say anything 	else 	that you’ve
testified to today?
A: I just told him that I had met her at a bar.
Q: So the answer is “yes.”
A: Yeah, I wouldn’t say “yes.”
Q: You didn’t talk to him about what bar, didn’t
talk to him about the boyfriend, you didn’t talk to
him about money being owed, you didn’t say any
of that, correct?
A: No.
The prosecutor referred to this exchange during her initial	¶18
closing argument and again during rebuttal.

State v. Argueta
20160565-CA 	8 	2018 UT App 142
B. 	The Prosecutor’s Questioning Did Not Violate Argueta’s
Right to Remain Silent
The Fifth Amendment to the United States Constitution	¶19
requires 	that 	persons 	who 	are 	in 	custody 	and 	subject 	to
interrogation must be “advised immediately” that they have the
right to remain silent and that anything they say may be used
against them. Doyle v. Ohio, 426 U.S. 610, 617 (1976); see Miranda
v. Arizona, 384 U.S. 436, 444–45, 467–68 (1966). Further, the
assurance that “silence will carry no penalty” is “implicit to any
person who receives the [Miranda] warnings.” Doyle, 426 U.S. at
618. Under Doyle, it is “fundamentally unfair and a deprivation
of due process” to allow a prosecutor to use a defendant’s silence
at the time of arrest “to impeach an explanation subsequently
offered at trial.” Id.
Argueta argues the district court erred “by allowing the	¶20
prosecutor, over trial counsel’s objections, to question [Argueta]
about his post-arrest silence and then draw negative inferences
from that silence throughout the remainder of the trial.” The
problem with this argument is that Argueta did not remain
silent after he was arrested and given a Miranda warning. Thus,
the prosecutor’s questioning drew negative inferences about his
statements, not his silence.3
3. The prosecutor’s questions asked about information Argueta
omitted in the statements he made to police. It could be argued
an omission involves a type of silence—silence as to particular
details intentionally left uncommunicated. Under this theory, the
prosecutor improperly drew attention to Argueta’s prior silence
as to the details of the explanation he gave at trial. But Anderson
v. Charles, 447 U.S. 404 (1980) (per curiam), specifically rejected
this “formalistic understanding of silence” and held that Doyle
does not require the protection of such omissions. See id. at 409
(internal quotation marks omitted).

State v. Argueta
20160565-CA 	9 	2018 UT App 142
Argueta asks us to treat his limited statements as the	¶21
equivalent of silence. He asserts that in Doyle, the defendant
made certain statements after a Miranda warning,4 but the Court
“analyzed the due process question as if [the] defendant[] had
remained silent.” Anderson v. Charles, 447 U.S. 404, 407 n.2 (1980)
(per curiam). Argueta argues that “silence doesn’t mean no
statements at all” and asserts his statements can be considered
silence because he invoked the right to remain silent5 and the
statements were not detailed and did not go to the elements of
the crime.
In State v. McCallie, 2016 UT App 4, 369 P.3d 103, this	¶22
court analyzed whether certain statements to police could be
considered “the equivalent of silence” as they were treated in
Doyle. 	Id. 	¶ 	21. 	This 	court 	pointed 	out 	that 	in 	Doyle, 	the
defendants 	“‘made 	no 	postarrest 	statements 	about 	their
involvement in the crime.’” Id. ¶ 20 (emphasis added) (quoting
Charles, 	447 	U.S. 	at 	407). 	We 	determined 	that 	“post-arrest
statements about the suspect’s involvement in the interrogation
itself” are “the equivalent of silence,” while “comments about
[the suspect’s] involvement in the crime” are not considered
silence. Id. ¶ 21.
Here, Argueta’s statements to Officer were that Victim	¶23
was “a liar, that he [had] met her at a bar, and that the keys were
4. In Doyle, after receiving his Miranda warning, the defendant
asked the arresting officer, “What’s this all about?” Doyle v. Ohio,
426 U.S. 610, 614 n.5 (1976) (quotation simplified). After the
officer explained the reason for his arrest, the defendant stated,
“[Y]ou got to be crazy,” or, “I don’t know what you are talking
about.” Id. at 622–23 n.4 (Stevens, J., dissenting).
5. In State v. McCallie, 2016 UT App 4, 369 P.3d 103, we clarified
that a suspect need not “unambiguously invoke his right to
remain silent to trigger Doyle’s ‘assurance that silence will carry
no penalty.’” Id. ¶ 25 (quoting Doyle, 462 U.S. at 618).

State v. Argueta
20160565-CA 	10 	2018 UT App 142
left in the door, and that he had left the keys in the house.” These
statements 	were 	unrelated 	to 	Argueta’s 	interrogation 	and
indeed, were not made in response to police questioning. The
statements go directly to Argueta’s involvement in the crime and
offer 	an 	alternative 	explanation 	for 	his 	entry 	into 	Victim’s
apartment. Thus, we cannot consider them as the equivalent of
silence, and proceed on the basis that the prosecutor commented
on Argueta’s post-Miranda statements regarding the crime.
The State argues the prosecutor’s commentary did not	¶24
violate the rule articulated in Doyle because her questioning was
akin to that in Charles, in which the Supreme Court held that
“Doyle does not apply to cross-examination that merely inquires
into prior inconsistent statements.” 447 U.S. at 408.
In Charles, a defendant charged with murder testified at	¶25
trial that he stole a vehicle from a store parking lot. Id. at 405.
When interrogated by police, the defendant stated that he stole
the car from a different location. Id. The prosecutor highlighted
this difference in the defendant’s testimony at trial. Id. at 405–06.
The defendant appealed, arguing the prosecutor’s questions
violated his constitutional rights under Doyle. Id. at 406–07.
The Supreme Court reiterated that Doyle bars the use of a	¶26
criminal defendant’s silence after the Miranda warning is given.
But it held that
Doyle does not apply to cross-examination that
merely inquires into prior inconsistent statements.
Such questioning makes no unfair use of silence
because a defendant who voluntarily speaks after
receiving Miranda warnings has not been induced
to remain silent. As to the subject matter of his
statements, the defendant has not remained silent
at all.
Id. at 408. The Supreme Court further explained, “Each of two
inconsistent 	descriptions 	of 	events 	may 	be 	said 	to 	involve

State v. Argueta
20160565-CA 	11 	2018 UT App 142
‘silence’ insofar as it omits facts included in the other version.
But Doyle does not require any such formalistic understanding of
‘silence,’ and we find no reason to adopt such a view in this
case.” Id. at 409.
We 	agree 	with 	the 	State 	that 	under 	Charles, 	the	¶27
prosecutor’s questions did not violate Argueta’s right to remain
silent. The main thrust of Charles clarifies that when a defendant
is questioned about how a prior explanation differs from one
given at trial, there is “no unfair use of [a defendant’s] silence”
because a defendant “has not been induced to remain silent.” Id.
at 408. Argueta voluntarily made statements to Officer after he
was given the Miranda warning, and his statements related
directly 	to 	his 	involvement 	in 	the 	crime. 	The 	prosecutor’s
questions “were not designed to draw meaning from silence”
but to “elicit an explanation” for the exculpatory details omitted
from 	his 	prior 	statement 	to 	Officer. 	See 	id. 	at 	409. 	The
prosecutor’s questions asked Argueta why, if his testimony at
trial 	were 	true, 	he 	omitted 	many 	of 	those 	details 	in 	the
explanation he gave to Officer. This questioning did not refer to
Argueta’s “exercise of his right to remain silent.” See id. at 408.
Argueta argues that Charles does not apply because his	¶28
trial testimony was consistent with his prior statement, in that
none of the details he gave at trial contradict the statement he
gave Officer. 	He 	argues that 	Charles 	applies only 	to 	cross-
examination of “prior inconsistent statements,” whereas Argueta
was cross-examined regarding “additional details” he failed to
include in his prior statement.
We are unpersuaded. The primary concern of Doyle and	¶29
Charles was to ensure that a defendant’s silence would “carry no
penalty.” Doyle, 426 U.S. at 618; see Charles, 447 U.S. at 408. We
see no difference in impeaching a defendant’s prior inconsistent
statement 	and 	impeaching 	a 	prior 	statement 	that 	omitted
exculpatory details where a defendant “has not been induced to
remain silent.” See Charles, 447 U.S. at 408. In both cases, there is
no “unfair use of silence.” Id. Thus, the prosecutor did not

State v. Argueta
20160565-CA 	12 	2018 UT App 142
violate 	the 	rule 	articulated 	in 	Doyle 	when 	she 	questioned
Argueta regarding his prior statements to police.
II. The Rule 404(b) Evidence
A. 	Additional Background
At a pretrial hearing, the district court heard evidence of	¶30
several prior acts, two of which are relevant here. First, the court
heard evidence that Argueta pleaded guilty to trespassing after
he was found near a woman’s residence in the early hours of the
morning. The woman thought there was an intruder in her
house and called the police. Upon arrival, the responding officer
saw Argueta emerging from her backyard, but there was no
evidence he entered her house. The prosecutor argued that this
evidence was admissible under rule 404(b) of the Utah Rules of
Evidence to show intent regarding Argueta’s entry into Victim’s
apartment. Specifically, she argued that the doctrine of chances
could be used to rebut Argueta’s testimony that he entered the
apartment innocently, merely with the intent of placing the keys
inside the door.
Second, the prosecutor sought to admit evidence that	¶31
Victim saw Argueta looking through her window in 2014, and
that she and a previous boyfriend confronted him and insisted
he leave. At the hearing, Argueta’s counsel argued that “[e]very
factor” of Victim’s eyewitness identification of Argueta weighs
“against finding that this is a good eyewitness identification.”
Trial counsel stated that if the prosecution were to put on
evidence of the peeping incident, the defense would have to call
an eyewitness-identification expert. Trial counsel argued that
this would “shift the jury’s focus” and the parties would “end up
spending more time trying the uncharged peeping tom incident”
than trying the charged crimes.
The court stated that evidence of the trespassing incident	¶32
and the peeping incident was not admissible in the State’s case
in chief, but would be admissible “if in fact the defendant puts

State v. Argueta
20160565-CA 	13 	2018 UT App 142
his intent of going inside of the apartment in play.” At trial when
Argueta 	testified 	concerning 	his 	intent, 	the 	court 	admitted
evidence of each incident during the State’s cross-examination of
Argueta.
B. 	The Trespassing Incident
Argueta argues the district court improperly relied on the	¶33
doctrine of chances to admit evidence of the trespassing incident.
Although we agree that this evidence was admitted in error, we
affirm on the basis that it was not prejudicial.
Rule 	404(b) 	of 	the 	Utah 	Rules 	of 	Evidence 	prohibits	¶34
“[e]vidence of a crime, wrong, or other act” from being admitted
“to prove a person’s character in order to show that on a
particular occasion the person acted in conformity with the
character.” But this evidence may be admissible “for another
purpose, 	such 	as 	proving 	motive, 	opportunity, 	intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack 	of 	accident.” 	Id. 	R. 	404(b)(2). 	“In 	some 	circumstances,
evidence of prior misconduct can be relevant under the so-called
‘doctrine of chances.’” State v. Verde, 2012 UT 60, ¶ 47, 296 P.3d
673, abrogated on other grounds by State v. Thornton, 2017 UT 9, 391
P.3d 	1016. 	The 	doctrine 	of 	chances 	is 	a 	“theory 	of 	logical
relevance that rests on the objective improbability of the same
rare misfortune befalling one individual over and over.” Id.
(quotation 	simplified). 	This 	doctrine 	defines 	circumstances
where prior bad acts can properly be used to rebut certain
defenses, including those based on mistake and lack of intent.6
6. Argueta argues the court did not have a proper, noncharacter
purpose for admitting the evidence of the trespassing incident
under rule 404(b) of the Utah Rules of Evidence. He argues the
court incorrectly used the doctrine of chances as an alternative
purpose for admitting the evidence. In response, the State argues
that the court admitted the evidence to prove Argueta’s intent in
entering 	Victim’s 	apartment, 	which 	is 	a 	valid 	noncharacter
(continued…)

State v. Argueta
20160565-CA 	14 	2018 UT App 142
State v. Lopez, 2018 UT 5, ¶ 49, 417 P.3d 116; Verde, 2012 UT 60,
¶ 47.
Verde outlined four foundational requirements that must	¶35
be satisfied to admit evidence under the doctrine of chances.
Verde, 2012 UT 60, ¶ 57; accord State v. Lowther, 2017 UT 34, ¶ 32,
398 	P.3d 	1032. 	These 	“foundational 	requirements 	are
(1) materiality, 	(2) 	similarity, 	(3) 	independence, 	and
(4) frequency.” Lowther, 2017 UT 34, ¶ 32; Verde 2012 UT 60,
¶¶ 57–61. 	Argueta 	asserts 	that 	under 	these 	elements 	the
trespassing incident is inadmissible, and we agree. Because we
determine that the evidence does not meet the second and fourth
foundational requirements and conclude the court erred on that
basis, we do not analyze the first and third requirements.7
(…continued)
purpose listed under rule 404(b). Given that the record shows
the court stated the evidence was “being brought in to show . . .
his intent was to go into the house,” and that the evidence would
be admissible only “should the defendant testify as to his intent
with regard to his entry, if any, into the residence,” we agree
with the State that the court’s use of the doctrine of chances to
admit the evidence was tied to a proper, noncharacter purpose.
7. The State argues that “the trespass evidence did not have to
satisfy Verde’s foundational requirements to be admissible under
rule 404(b),” and that “prior-acts evidence” need not “satisfy the
doctrine 	of 	chances’ 	foundational 	requirements 	to 	be
admissible.” While the State is correct that all prior-acts evidence
need not meet the foundational requirements to be admissible
under rule 404(b), it is incorrect that the trespassing evidence did
not have to satisfy the requirements. The Utah Supreme Court in
State v. Lowther, 2017 UT 34, 398 P.3d 1032, made clear that
“under the doctrine of chances, evidence must not be admitted
absent 	satisfaction 	of 	[the] 	four 	foundational 	requirements
[outlined 	in 	Verde].” 	Id. 	¶ 	32 	(quotation 	simplified). 	Thus,
(continued…)

State v. Argueta
20160565-CA 	15 	2018 UT App 142
The 	second 	and 	fourth 	foundational 	requirements—	¶36
similarity and frequency—“interact with each other to become a
safeguard against the doctrine of chances becoming a work-
around for the admission of otherwise improper propensity
evidence.” Lopez, 2018 UT 5, ¶ 57. Because the doctrine of
chances 	scrutinizes 	the 	objective 	improbability 	of 	certain
incidents, both elements are “important inputs for determining
this improbability; the less similar the acts, the more probable it
is that they would occur in the general population. And the less
frequently they occur in the general population, the more it is
objectively improbable that so many incidents would occur
randomly.” Id. ¶ 59 n.12 (quotation simplified). Thus, we review
similarity and frequency in tandem. See id.
First, we determine whether the acts were sufficiently	¶37
similar. This element requires that “the similarities between the
charged and uncharged incidents . . . be ‘sufficient to dispel any
realistic possibility of independent invention.’” Lowther, 2017 UT
34, ¶ 36 (citation omitted). “The more similar, detailed, and
distinctive the various accusations, the greater is the likelihood
that 	they 	are 	not 	the 	result 	of 	independent 	imaginative
invention,” which increases “the likelihood that the defendant
committed one or more of the actions.” Id. (quotation simplified).
Although Verde states the other incidents must be “roughly
similar” to the charged crime and “fall into the same general
category,” 2012 UT 60, ¶¶ 58–59 (quotation simplified), it also
requires “some significant similarity [between the two incidents]
to suggest a decreased likelihood of coincidence,” and that the
similarities be “sufficient to dispel any realistic possibility of
independent 	invention,” 	id. 	¶¶ 	58–59 	(emphasis 	added)
(quotation simplified).
(…continued)
because evidence of the trespassing incident was admitted under
the doctrine of chances in the context of rule 404(b), it must
satisfy the foundational requirements of Verde.

State v. Argueta
20160565-CA 	16 	2018 UT App 142
The 	similarities between 	the 	trespassing 	incident 	and	¶38
Argueta’s charged crime are insufficient to meet the second
foundational requirement. Although both scenarios involved
Argueta’s presence at a woman’s residence in the early morning
hours and Argueta’s offer of an innocent explanation for being
there, one incident was a trespassing charge where there was no
evidence of entry, and the other involved burglary and sexual
abuse charges. In the trespassing incident, Argueta was seen
near the woman’s yard. There was no evidence he entered the
residence and there was no evidence given at trial, other than his
presence on the property, that demonstrated an unlawful intent
to 	enter 	the 	house. 	In 	this 	case, 	Argueta 	entered 	Victim’s
building and her individual apartment, was found there by
Boyfriend and Victim, and was immediately accused of sexually
touching 	Victim. 	Although 	Argueta 	offered 	an 	innocent
explanation for his entry, an unlawful intent for his entry was
immediately apparent. Thus, these incidents are not sufficiently
similar to suggest a decreased likelihood of coincidence.
Next we analyze the frequency element, which requires	¶39
that the defendant “have been accused of the crime or suffered
an unusual loss more frequently than the typical person endures
such losses accidentally.” Lowther, 2017 UT 34, ¶ 38 (quotation
simplified). Even one other instance is sufficient to satisfy this
element, though “courts should properly have in mind the
principle that the fewer incidents there are, the more similarities
between the crimes there must be.” State v. Lomu, 2014 UT App
41, ¶ 32, 321 P.3d 243 (deciding the frequency element was
satisfied where only two crimes were involved but were “almost
identical”). 	Here, 	there 	is 	only 	one 	other 	incident 	being
compared with the crime in question.8 We previously explained
that the incidents did not have sufficient similarities to meet the
8. The State argues that the peeping incident should also be
considered 	under 	the 	frequency 	element, 	but 	the 	peeping
incident was not analyzed under the doctrine of chances and
was admitted separately under rule 404(b).

State v. Argueta
20160565-CA 	17 	2018 UT App 142
second 	foundational 	requirement, 	see 	supra 	¶ 	38, 	and 	one
trespassing conviction, almost five years earlier, is not more than
a typical person can experience accidentally. We thus determine
that the frequency element has not been met.
Because two of the four foundational requirements could	¶40
not be satisfied, we conclude the district court erred in admitting
the trespassing incident under the doctrine of chances. One
trespassing conviction does not increase the statistical likelihood
that on a different occasion Argueta entered Victim’s apartment
with unlawful intent. See Lowther, 2017 UT 34, ¶ 21 (“Verde’s
foundational requirements assess whether a body of prior bad
acts evidence is being employed for a proper, non-character
statistical inference.”).
With that being said, even though the evidence was	¶41
admitted in error, it was not prejudicial. “For an error to require
reversal, 	the 	likelihood 	of 	a 	different 	outcome 	must 	be
sufficiently high to undermine confidence in the verdict.” State v.
Miranda, 2017 UT App 203, ¶ 44, 407 P.3d 1033 (quotation
simplified).
We 	are 	not 	convinced 	that 	if 	the 	evidence 	of 	the	¶42
trespassing 	incident 	had 	not 	been 	admitted, 	there 	was 	a
sufficiently high likelihood of a different outcome at trial. The
trial evidence came down to a test of credibility—Argueta’s
testimony against Victim’s. We have little trouble concluding
that the jury would likely have credited Victim’s testimony over
Argueta’s—he testified that although he met Victim just once
before, he stopped by her apartment in the early morning hours
to claim an eighteen-month-old, twenty-dollar debt, and that
when he saw the keys in the door, he decided to do a “good
deed” by entering the apartment to place them inside. Further,
some 	of 	Argueta’s 	testimony 	was 	unclear 	and 	incohesive.9
9. For example, Argueta’s testimony does not specify when
Officer read him the Miranda rights, and his testimony on direct
(continued…)

State v. Argueta
20160565-CA 	18 	2018 UT App 142
Victim’s 	version 	of 	events, 	on 	the 	other 	hand, 	remained
consistent 	and 	was 	corroborated 	by 	other 	witnesses. 	Given
Argueta’s 	explanation 	regarding 	his 	presence 	in 	Victim’s
apartment and the strength of the other witnesses’ testimonies,
we cannot say the outcome of the trial likely would have
changed had the court refused to admit the trespassing evidence.
Accordingly, the district court’s error in this regard does not
require reversal. See id.
C. 	The Peeping Incident
Argueta argues on appeal that the peeping incident was	¶43
inadmissible under rule 403 of the Utah Rules of Evidence
“because it was unreliable and unfairly prejudicial.” Specifically,
he 	contends 	the 	district 	court 	should 	have 	analyzed 	“the
reliability of that identification under rule 403 before allowing it
to be presented to the jury.”
The State argues this issue is unpreserved, and we agree.	¶44
“As a general rule, claims not raised before the district court may
not be raised on appeal.” Oseguera v. State, 2014 UT 31, ¶ 10, 332
P.3d 963 (quotation simplified). To preserve an issue for appeal,
counsel must present the issue to the district court “in such a
way 	that 	the 	court 	has 	an 	opportunity 	to 	rule 	on 	it.” 	Id.
(quotation simplified). An issue must be specific, raised in a
(…continued)
examination never mentions if Officer read him Miranda rights
or told Argueta that he did not want to hear anymore from him.
See supra ¶ 16. Also, when the prosecutor asked Argueta why he
would drive approximately twenty-five minutes from his home
to a bar in Salt Lake City, Argueta responded that he never said
he drove from his home and that he usually stopped by the bar
after running errands as a mechanic. But when the prosecutor
asked him why he would be servicing vehicles around two
o’clock in the morning, Argueta answered that was “not what
[he] was doing exactly that day.”

State v. Argueta
20160565-CA 	19 	2018 UT App 142
timely fashion, and identify supporting evidence or authority. Id.
“[A] party that makes an objection based on one ground does
not preserve any alternative grounds for objection for appeal.”
Id.
In his motion to suppress the prior-acts evidence, Argueta	¶45
argued that evidence of the peeping incident was inadmissible
under rule 403 because it would “greatly confuse the issues
before the jury” and “cost a great deal of time and other
resources.” At the hearing, trial counsel mentioned that Victim’s
eyewitness identification was unreliable: “Every factor weighs
against 	. 	. 	. 	a 	finding 	that 	this 	is 	a 	good 	eyewitness
identification.” But trial counsel asserted its unreliability would
necessitate calling an expert witness—he did not argue that the
unreliability of the identification would cause the evidence to be
inadmissible under rule 403. Counsel’s main concern was that
calling an expert would require the parties to spend more time
trying the uncharged peeping incident than the charged crimes.
Because counsel did not argue that unreliability was a	¶46
basis for excluding the peeping incident under rule 403, he has
failed 	to 	preserve 	the 	issue 	for 	appeal, 	and 	we 	decline 	to
consider it.10
10. To seek review of an unpreserved issue, a party must
articulate an exception to the preservation rule. State v. Johnson,
2017 UT 76, ¶ 19, 416 P.3d 443 (articulating the three exceptions
to preservation: plain error, ineffective assistance of counsel, and
exceptional circumstances). Argueta asks us to consider this
claim under ineffective assistance of counsel and refers us to a
particular 	section 	of 	his 	brief. 	But 	that 	section 	analyzes 	a
different issue for ineffective assistance of counsel—whether
Argueta’s trial testimony triggered the introduction of the prior-
acts evidence. We therefore do not consider the merits of this
contention because Argueta failed to argue that any exception to
the preservation rule applied here.

State v. Argueta
20160565-CA 	20 	2018 UT App 142
III. Ineffective Assistance of Counsel
Argueta makes three ineffective 	assistance 	of 	counsel	¶47
claims on appeal. To demonstrate ineffective assistance, Argueta
must show that trial counsel performed deficiently and that this
deficient performance prejudiced his defense. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). Deficient performance is
representation 	that 	“[falls] 	below 	an 	objective 	standard 	of
reasonableness.” Id. at 688. A defendant is prejudiced when
“trial counsel’s ineffective assistance harm[s] [the defendant] in a
way that undermines our confidence in the verdict.” State v.
Doutre, 2014 UT App 192, ¶ 25, 335 P.3d 366. “If it is easier to
dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, that course should be followed.” State v.
McNeil, 	2013 	UT 	App 	134, 	¶ 	26, 	302 	P.3d 	844 	(quotation
simplified), aff’d, 2016 UT 3, 365 P.3d 699; accord Strickland, 466
U.S. at 697.
First, 	Argueta 	asserts 	his 	counsel 	failed 	to 	object 	to	¶48
evidence that, in 2014, an officer questioned him on the street.
Argueta argues the evidence was previously undisclosed to the
defense and otherwise inadmissible.
Assuming 	without 	deciding 	that 	the 	evidence 	was	¶49
admitted in error, it was not prejudicial to Argueta’s defense.
The officer testified that Argueta was walking late at night in a
neighborhood in which he did not live. The officer testified that
Argueta stated he had to urinate frequently, and the officer told
him he could not do that around the houses and if the officer
caught Argueta exposing his penis the officer would arrest him.
Although this evidence portrays Argueta in an unfavorable light,
it 	does 	no 	more 	than 	demonstrate 	that 	Argueta 	was 	in 	a
neighborhood other than his own late at night, and suggests that
he may have urinated in public. Argueta had already testified
that in Guatemala, his country of origin, it is acceptable to
urinate outside as well as “in people’s yards.” This evidence was
relatively mild compared to the evidence of sexual touching and
the peeping incident. Furthermore, given Argueta’s explanation

State v. Argueta
20160565-CA 	21 	2018 UT App 142
about why he was in Victim’s apartment and the consistency in
and corroboration of Victim’s testimony, our confidence in the
jury verdict 	is not 	undermined. 	Argueta 	was therefore 	not
prejudiced by his counsel’s failure to object to the admission of
this evidence.
Next, Argueta argues trial counsel was ineffective for	¶50
failing to renew the objection to the admission of the trespassing
and peeping incidents on the basis that Argueta’s testimony did
not trigger the introduction of the rule 404(b) evidence.
During the pretrial hearing, the court determined that the	¶51
trespassing 	and 	peeping 	incidents 	would 	be 	admissible 	if
Argueta put “his intent of going inside of the apartment in
play.” Argueta argues that the triggering event was testimony
that he had been given permission to enter the apartment. He
argues that “[a]s long as [Argueta] did not claim that he had
explicit permission from [Victim] to enter the apartment, none of
the prior incidents should have been allowed in.”
We read the record differently and determine that the	¶52
triggering event was Argueta’s testimony that he entered the
apartment for a lawful or innocent purpose. When discussing
this 	event 	at 	the 	hearing, 	the 	court 	referred 	to 	Argueta’s
potential testimony, stating, “I think where we have to go is to
say, ‘I had permission to go inside the house.’” But trial counsel
explained that Argueta was never given permission to enter, and
the prosecutor explained that the real issue would be whether
Argueta would testify that he was there for “a lawful purpose”
and was “being a good Samaritan” by putting the keys inside the
apartment. After this dialogue, the court ruled that the triggering
event would be if Argueta put “his intent of going inside of the
apartment in play.” We therefore determine that the triggering
event was not testimony that Argueta had permission to enter
the apartment, but testimony that he was there for a lawful
purpose and innocently entered it.

State v. Argueta
20160565-CA 	22 	2018 UT App 142
At trial, Argueta’s testimony during direct examination	¶53
met this triggering event. He testified that he came to Victim’s
apartment to claim a twenty-dollar debt from her previous
boyfriend—a 	lawful 	and 	legitimate 	purpose 	to 	stop 	by
someone’s residence. He also testified that he saw the keys in
Victim’s door and entered the apartment and placed them inside
to do a “good deed”—an innocent explanation for entering.
Because 	the 	triggering 	event 	for 	admitting 	the 	rule 	404(b)
evidence occurred, counsel did not perform deficiently by failing
to renew an objection to the admissibility of the trespassing and
peeping 	incidents 	based 	on 	the 	assertion 	that 	Argueta’s
testimony did not trigger their admission. See State v. Kelley, 2000
UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile objections does
not constitute ineffective assistance of counsel.”).
Lastly, Argueta argues that trial counsel was ineffective	¶54
for failing to move for a mistrial when the prosecutor “continued
to make improper comments on [Argueta’s] post-arrest silence.”
We have determined that the prosecutor did not comment on
Argueta’s silence, but instead drew attention to the statements
he made to Officer after he was given a Miranda warning. See
supra ¶¶ 20–29. Because the prosecutor’s comments did not
violate the rule articulated in Doyle, see supra ¶¶ 27–29, a motion
for mistrial on those grounds would have been futile. Therefore,
trial counsel did not perform deficiently by failing to move for a
mistrial. See Kelley, 2000 UT 41, ¶ 26.
IV. Cumulative Error
Finally, Argueta argues we should reverse because the	¶55
“cumulative effect of the errors was undoubtedly prejudicial.”
“Whether errors can be classified as cumulatively harmful turns
on whether the errors undermine confidence in the jury verdict.”
State v. Bradley, 2002 UT App 348, ¶ 16, 57 P.3d 1139. Although
we conclude it was error for the district court to admit evidence
of 	the 	trespassing 	incident, 	we 	determined 	the 	error 	was
harmless. And assuming, without deciding, that trial counsel
should have objected to the evidence of Argueta’s nighttime

State v. Argueta
20160565-CA 	23 	2018 UT App 142
conversation 	with 	the 	police, 	the 	cumulative 	effect 	of 	that
conversation, even in conjunction with the admission of the
trespassing incident, does not undermine our confidence in the
jury verdict. Thus, we conclude there is no cumulative error.
CONCLUSION
We conclude the prosecutor did not violate Argueta’s	¶56
constitutional right to remain silent when she drew attention to
statements he made to Officer after he was given a Miranda
warning. 	We 	also 	conclude 	that 	though 	evidence 	of 	the
trespassing incident was admitted in error, it was not prejudicial.
Finally, we conclude Argueta did not preserve his arguments
regarding the peeping incident, and his counsel did not render
ineffective assistance. We therefore affirm.