State v. Harris

2024 UT App 191
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
R ICKEY S COTT H ARRIS ,
Appellant.
Opinion
No. 20220791-CA
Filed December 27, 2024
First District Court, Logan Department
The Honorable Brian G. Cannell
No. 211101374
Peter Daines, Attorney for Appellant
Sean D. Reyes and Jeffrey D. Mann,
Attorneys for Appellee
JUDGE R YAN D. T ENNEY authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and R YAN M. HARRIS
concurred.
TENNEY, Judge:
¶1 	Rickey 	Harris 	was 	charged 	with 	several 	offenses 	for
violently attacking his wife (Wife). The case went to trial, and
during closing arguments, the prosecutor suggested to the jury
that, in light of the evidence that the State had presented, the
presumption of innocence was now “gone.” After deliberations,
the jury convicted Harris of aggravated kidnapping, attempted
aggravated assault, and assault with bodily injury.
¶2 	On appeal, Harris argues that his trial counsel (Counsel)
was ineffective for not objecting to the prosecutor’s statement
about the presumption of innocence. Alternatively, Harris argues
that the district court committed plain error by failing to correct

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the prosecutor’s statement sua sponte. We reject both arguments
and affirm Harris’s convictions.
BACKGROUND1
The Incident
¶3 	In November 2021, Harris and Wife had been married for
several years. Their marriage had been “pretty good” at first, but
in 	the 	previous 	year, 	Harris’s 	behavior 	had 	“[c]hanged
drastically.” Harris had become “very agitated,” “indifferent,”
“angry,” and “controlling.”
¶4 	On the day before Thanksgiving, Harris became very
angry with Wife when he couldn’t find some food that he wanted.
Harris then attacked Wife, wrapping a windbreaker around her
neck tightly enough to leave “a mark,” though not tightly enough
to completely prevent her from breathing. Harris then shoved
Wife to the ground, lifted her back up by her hair, pushed her
down the hallway, and drove her back to the ground, “put[ting]
all 	his 	weight 	on” 	her. 	Wife 	could 	“hear 	bones 	popping,
breaking.”
¶5 	Wife managed to get up, and she retreated into their
bedroom. Harris followed her, and once there, he told her, “Today
is your last day on earth.” Wife was “terrified” and “in complete
shock.” Wife then went into a bathroom and sat in the tub. Harris
followed her into the bathroom and made statements that Wife
interpreted as threats to her life.
1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Ames, 2024 UT App 30, n.1, 546 P.3d 356 (quotation simplified),
cert. denied, 550 P.3d 993 (Utah 2024).

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¶6 	After about ten minutes, Wife heard two people talking
inside the home. Wife managed to leave the bathroom and went
into the hallway, where she saw her sister (Sister), who had come
over to drop off some pies for Thanksgiving. Wife later claimed
that she told Sister that Harris had “just tried to beat the hell out
of” her and that she asked if she could leave with Sister. For her
part, Sister later said that she didn’t remember Wife saying
anything about “a fight,” but Sister did remember sensing that
“something was wrong.” In the end, Wife did not leave with
Sister.
¶7 	A day or two later, Wife “noticed [a] mark” and “some
bruising” on her neck, and she was also having trouble breathing.
About a week after noticing the bruising, Wife went to a clinic and
was seen by a doctor (Doctor). Doctor later testified that Wife
seemed “anxious and frazzled.” Wife “complain[ed] of right-
sided rib pain and difficulty breathing,” and an X-ray showed that
she had a fractured rib. Doctor also observed an abrasion on the
left side of Wife’s neck, as well as bruising around her clavicle,
shoulder, and breast. Wife told Doctor that it was “her husband
who [had] inflicted wounds on her and had used a jacket to
strangle her.” Doctor contacted law enforcement, and a deputy
(Deputy) came to the clinic to speak with Wife.
¶8 	Deputy later said that Wife “was a little hesitant” to speak
with him and that Wife seemed “frightened” and “scared.”
Deputy immediately noticed an “abrasion” on Wife’s neck and
“bruising on her collar bone.” Deputy thought that Wife clearly
explained what Harris had done to her and that Wife’s story was
internally “consistent” as she told it.
Charges and Trial
¶9 	The 	State 	charged 	Harris 	with 	one 	count 	each 	of
aggravated kidnapping, aggravated assault, and assault causing
substantial bodily injury. In the summer of 2022, the case went to
trial.

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¶10 	After a jury was picked and sworn in, the district court read
preliminary instructions. In these instructions, the court told the
jury, 	“The 	prosecution 	must 	prove 	each 	element 	beyond 	a
reasonable doubt. Until then, you must presume the defendant is
not guilty.” The court further explained, “The law presumes the
defendant is not guilty of the crimes charged. This presumption
persists unless the prosecution’s evidence convinces you beyond
a reasonable doubt that the defendant is guilty.”
¶11 	During the State’s case, Wife, Sister, Doctor, and Deputy
testified to the events described above. The State also called a
psychologist, who testified about domestic violence and about
how trauma affects memory, as well as a nurse practitioner, who
testified about the nature of the injuries that can result from
strangulation. The defense did not call any witnesses. Instead,
through his questioning of the State’s witnesses, Counsel elicited
information showing that Wife had given inconsistent accounts of
the 	incident 	with 	Harris. 	Counsel 	also 	elicited 	information
showing that Wife had made various claims about other incidents
and other people that were arguably not true.2
¶12 	Before closing arguments, the district court read final jury
instructions. One of these was Instruction 22, which directed the
jury as follows:
Remember, the fact that the defendant is charged
with a crime is not evidence of guilt. The law
presumes that the defendant is not guilty of the
crime(s) charged. This presumption persists unless
the prosecution’s evidence convinces you beyond a
reasonable doubt that the defendant is guilty.
2. These included statements Wife had made about her current
marital status, assertions she’d made about alleged threats to her
life from other people, and statements that she’d made about
other legal proceedings that she was involved in around the same
time.

State v. Harris
20220791-CA 	5 	2024 UT App 191
¶13 	When the prosecutor began his closing argument, he talked
about the dynamics associated with domestic violence, including
that 	domestic violence 	“happens 	behind 	closed 	doors” 	and
abusers “expect their victim to stay quiet.” The prosecutor then
commented 	on 	Harris’s 	presumption 	of 	innocence. 	The
prosecutor said:
At the start of this trial, the defendant had the
presumption 	of 	innocence. 	But 	now 	that
presumption’s gone. The evidence you’ve heard this
week, the evidence shows beyond any reasonable
doubt the defendant is guilty of each of the crimes
charged.
Counsel did not object to this statement. Continuing with his
closing argument, the prosecutor recounted Wife’s testimony as
well as the testimonies of Doctor and Sister, claiming that Doctor
and Sister’s testimonies corroborated Wife’s account. Finally, the
prosecutor discussed the charged crimes, reading the elements
from the jury instructions and asserting that the evidence had
proved each element.
¶14 	In 	his 	closing 	argument, 	Counsel 	argued 	that 	Wife’s
“confidence in her story doesn’t make it true.” Counsel pointed to
the inconsistencies in Wife’s account of the incident with Harris
and the various other things she’d said that were arguably not
true, thus suggesting that she could not and should not be
believed.
¶15 	Toward 	the 	end 	of 	his 	closing, 	Counsel 	referred 	to
Instruction 22, reminding jurors that it told them: “Remember, the
fact that the defendant is charged with a crime is not evidence of
guilt. The law presumes that the defendant is not guilty of the
crimes 	charged. 	This 	presumption 	persists 	unless 	the
prosecution’s evidence convinces you beyond a reasonable doubt
that the defendant is guilty.” Counsel then argued:

State v. Harris
20220791-CA 	6 	2024 UT App 191
So in my mind, we start with the position that the
defendant is not guilty. And then we go through
those instructions, each one of those elements, one
by one, and ask, did the prosecution prove to me
beyond 	a 	reasonable 	doubt 	that 	this 	thing
happened? And we work that way. I think that’s
important 	because 	it keeps the position of 	the
defendant 	and 	the 	prosecution 	where 	they 	are
supposed to be. The system is designed to work this
way.
Counsel 	finished 	his 	closing 	argument 	by 	asking 	jurors 	to
conclude that the State had not carried its burden of establishing
Harris’s guilt with proof beyond a reasonable doubt with respect
to any of the charges.
¶16 	After deliberations, the jury convicted Harris on the first
count—aggravated kidnapping. On the second and third counts,
the jury convicted Harris of the lesser included offenses of
attempted aggravated assault and assault with bodily injury.
ISSUES AND STANDARDS OF REVIEW
¶17 	On 	appeal, 	Harris 	challenges 	his 	convictions 	on 	two
related grounds. First, Harris argues that Counsel provided
ineffective 	assistance 	by 	not 	objecting 	to 	the 	prosecutor’s
statement in closing argument that the presumption of innocence
was now “gone.” “An ineffective assistance of counsel claim
raised for the first time on appeal presents a question of law.” State
v. Cesspooch, 2024 UT App 15, ¶ 7, 544 P.3d 1046 (quotation
simplified), cert. denied, 550 P.3d 994 (Utah 2024). Second, Harris
argues that the district court plainly erred by failing to correct the
prosecutor’s statement sua sponte. “To prevail on plain error
review, a defendant must establish that (i) an error exists; (ii) the
error should have been obvious to the trial court; and (iii) the error
is harmful, i.e., absent the error, there is a reasonable likelihood of

State v. Harris
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a more favorable outcome for the appellant.” Id. (quotation
simplified).
ANALYSIS
¶18 	Harris argues that Counsel provided ineffective assistance
by not objecting or adequately responding to a statement the
prosecutor made during closing argument about the presumption
of innocence, and, alternatively, that the district court plainly
erred by not correcting the statement sua sponte. We disagree on
both fronts.
A. 	Ineffective Assistance
¶19 	To prevail on an ineffective assistance claim, a defendant
must show (i) “that counsel’s performance was deficient” and
(ii) “that 	the 	deficient 	performance 	prejudiced 	the 	defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant
“must establish both prongs,” and “if either is lacking, the claim
fails and this court need not address the other.” State v. Ames, 2024
UT App 30, ¶ 17, 546 P.3d 356 (quotation simplified), cert. denied,
550 P.3d 993 (Utah 2024).
¶20 	“To establish deficient performance,” a defendant “must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id.
¶ 18 	(quotation 	simplified). 	“The 	focus 	of 	this 	inquiry 	is
reasonableness,” which is judged “as of the time of counsel’s
conduct.” Id. (quotation simplified). In assessing such claims, our
supreme court has recognized that defense counsel need not
object to every objectionable error at trial in order to provide
effective assistance. In State v. Bonds, for example, the supreme
court held that “just because a legal error existed . . . does not
necessarily mean that defense counsel’s failure to object to the
error amounted to deficient performance.” 2023 UT 1, ¶ 43, 524
P.3d 581. And in State v. Ray, the court held that “[d]efense counsel
did not have a Sixth Amendment obligation to correct every error

State v. Harris
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that might have occurred at trial, regardless of whether it affected
the defendant. Counsel could pick his battles.” 2020 UT 12, ¶ 32,
469 P.3d 871.
¶21 	This appeal concerns a defense attorney’s failure to object
to a statement made by the prosecutor during closing argument.
With respect to such claims generally, our supreme court has held
that “the question is not whether the prosecutor’s comments were
proper, but whether they were so improper that counsel’s only
defensible choice was to interrupt those comments with an
objection.” State v. Houston, 2015 UT 40, ¶ 76, 353 P.3d 55
(emphasis in original, quotation otherwise simplified). And the
supreme 	court 	has 	further 	“recognize[d] 	the 	prerogative 	of
opposing counsel to swallow their tongue.” State v. Hummel, 2017
UT 19, ¶ 110, 393 P.3d 314. We’ve recognized this too, pointing
out that there are many “legitimate, strategic reasons” why an
attorney might choose to not object to a statement made during
closing argument. State v. Isom, 2015 UT App 160, ¶ 38, 354 P.3d
791. Such reasons include the possible fear “that objecting would
call attention to the improper statements and suggest to the jury
that they were damaging when counsel felt they were not,” the
concern that “the jury was weary and inattentive to the prosecutor
and that objecting would only serve to focus their attention on the
remark,” 	and 	the 	“concern 	that 	an 	objection 	would 	create
antipathy to the defense if the jury perceived that counsel’s
repeated objections were only prolonging the proceedings.” Id.
(quotation simplified).
¶22 	As 	noted, 	the 	statement 	at 	issue 	here concerned 	the
presumption of innocence. More specifically, during his closing
argument, the prosecutor said, “At the start of this trial, the
defendant had the presumption of innocence. But now that
presumption’s gone. The evidence you’ve heard this week, the
evidence shows beyond any reasonable doubt the defendant is
guilty of each of the crimes charged.”
¶23 	In Harris’s view, Counsel should have objected to this
statement. But we conclude that Harris has not established that

State v. Harris
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Counsel performed deficiently by not objecting. This is so for two
interrelated reasons.
¶24 	The first and primary reason has to do with the unsettled
state of the law on this point—and, by extension, the possibility
that the objection proposed by Harris on appeal might have been
denied and could have even backfired.
¶25 	In his opening brief, Harris argued that the prosecutor’s
statement was improper. And on first blush, there’s some reason
to think that he might be correct. Both the Utah Supreme Court
and 	this 	court 	have 	previously 	said 	in 	passing 	that 	the
presumption of innocence applies until the defendant has been
convicted. See Price v. Turner, 502 P.2d 121, 122 (Utah 1972) (“After
one has been convicted of [a] crime the presumption of innocence
and other protections afforded an accused no longer obtain.”);
Stewart v. State, 830 P.2d 306, 308 (Utah Ct. App. 1992) (“While a
defendant is entitled to a presumption of innocence before
conviction, once he or she is convicted, the presumptions change
. . . .”). And the United States Supreme Court has likewise said
that the presumption applies “throughout the trial process” until
“a jury returns a guilty verdict.” Martinez v. Court of Appeal of Cal.,
Fourth App. Dist., 528 U.S. 152, 162 (2000). Based on similar
principles, 	Harris 	points 	to 	a 	number 	of 	cases 	from 	other
jurisdictions in which courts held that statements like the one at
issue were deemed impermissible. See, e.g., State v. Decker, 202
P.3d 	669, 	675–76 	(Kan. 	2009) 	(holding 	that 	a 	prosecutor’s
statement 	that 	“he’s 	no 	longer 	presumed 	innocent” 	was
“misconduct” (emphasis omitted)); State v. Lawrence, 2016 MT 346,
¶ 19, 385 P.3d 968 (holding that a prosecutor’s statement that the
“presumption of innocence that you came into this trial with no
longer exists” constituted “misconduct requiring relief”); Morales
v. State, 143 P.3d 463, 467 (Nev. 2006) (holding that a prosecutor’s
statement that “there was no presumption of innocence anymore”
was 	“improper” 	and 	constituted 	“plain 	error” 	(quotation
simplified)); State v. Worth, 218 P.3d 166, 170 (Or. Ct. App. 2009)
(holding that a “prosecutor’s statement that defendant ‘does not
sit before you presumed innocent’” was a “misstatement[] of the

State v. Harris
20220791-CA 	10 	2024 UT App 191
law”); Watts v. State, 2016 WY 40, ¶ 12, 370 P.3d 104 (holding that
a prosecutor’s statement “that the presumption of innocence ‘no
longer exists’” constituted “[p]rosecutorial misconduct”).
¶26 	Even so, the State argued in its responsive brief that
statements such as the one at issue may be permissible. Cases such
as Price and Stewart addressed the presumption of innocence
generally, but Harris and the State both recognized in their briefs
that no Utah appellate case has addressed the more particular
question of whether a prosecutor can make such a statement in a
closing argument. In addition, we note that the Utah Code states
that the presumption of innocence applies “until each element of
the offense charged against [the defendant] is proved beyond a
reasonable doubt.” Utah Code § 76-1-501(1) (emphasis added).
Taken at face value, this statute could suggest that the question
turns on whether the State has presented sufficient proof, as
opposed to whether the defendant has been convicted.
¶27 	Perhaps most importantly, the State cited several cases
from other jurisdictions in which courts held that a prosecutor
does have leeway to argue in closing argument that the defendant
should no longer be presumed innocent because the evidence
presented at trial had now proven the defendant’s guilt beyond a
reasonable doubt. See, e.g., People v. Dalton, 441 P.3d 283, 350, 352
(Cal. 	2019) 	(holding 	that 	a 	prosecutor’s 	statement 	that 	the
defendant had a presumption of innocence “when we started this
case,” but “[n]ow that the evidence is here, now that you heard it
all, it is gone,” was not misconduct and was a permissible
argument); People v. McGee, 2015 IL App (1st) 130367, ¶¶ 65–66, 44
N.E.3d 510 (holding that a prosecutor’s statement—that “the
evidence in this case, it’s like the heat that removes the cloak of
innocence. 	. 	. 	. 	[W]itness 	by 	witness, 	that 	presumption 	of
innocence that they started this trial with has been slowly burned
away”—was not improper); State v. Young, 710 N.W.2d 272, 280–
81 (Minn. 2006) (holding that a prosecutor’s statement—that
defendant was “no long[er] an innocent man” because “[t]he
evidence that’s been presented to you by the state has shown you

State v. Harris
20220791-CA 	11 	2024 UT App 191
that 	he’s 	guilty 	beyond 	a 	reasonable 	doubt”—“was 	not 	a
misstatement of the law, and did not constitute error”).
¶28 	In response to the State’s authority, Harris conceded in his
reply brief that “[t]he State is correct in arguing that a prosecutor
may assert during closing argument that the presumption of
innocence has been overcome by the State’s evidence without
committing 	misconduct.” 	(Emphasis 	added.) 	But 	Harris
nevertheless argued that the statement at issue here was still
impermissible 	because 	the 	prosecutor 	suggested 	that 	the
presumption of innocence “no longer attached to Harris at the time
of closing.” (Emphasis added.)
¶29 	From all this, it appears to us that the law is unsettled on
the very point that’s at issue in this appeal. There’s at least an
argument to be made that, because our supreme court, this court,
and the United States Supreme Court have all indicated that the
presumption of innocence applies to the point of conviction,
statements such as the one made by the prosecutor in this case are
problematic. But none of those courts have addressed the full
ramifications of the underlying principle on closing arguments.
And although bound 	by the same constitutional principles,
several other courts have concluded that, in an apparent nod to
the latitude that a party has in making a closing argument, it is
permissible for a prosecutor to suggest to jurors in a closing
argument that the presumption has been rebutted by the evidence
that was presented during the trial. And finally, in the face of such
authority, Harris’s appellate counsel now asks us to draw a
somewhat 	subtle 	distinction 	between 	arguments 	about 	the
presumption no longer attaching versus arguments about the
presumption having been overcome, and he then argues that the
prosecutor’s comments here were improper under the terms of
that distinction.
¶30 	As noted, however, an ineffective assistance claim must be
evaluated “as of the time of counsel’s conduct.” Ames, 2024 UT
App 	30, 	¶ 	18 	(quotation 	simplified). 	In 	light 	of 	the 	legal
uncertainty 	attendant 	to 	this 	question, 	Counsel 	could 	have

State v. Harris
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reasonably believed that if he had objected, the district court
might overrule the proposed objection on legal grounds. In other
words, because there is no controlling authority on this point, the
court may have concluded (as other courts have concluded) that
a statement such as the one made by the prosecutor here was fair
game. Moreover, even if Counsel had 	been attuned to the
proposed 	distinction 	that 	Harris’s 	appellate 	counsel 	now
advances, Counsel could have thought that the district court
would think that the prosecutor’s statement was permissible
under that view of the law. After all, after the prosecutor
suggested to jurors that the “presumption’s gone,” the prosecutor
said in the very next sentence that “[t]he evidence you’ve heard
this week, the evidence shows beyond any reasonable doubt the
defendant is guilty of each of the crimes charged.” In this sense,
the prosecutor was arguably suggesting to the jury that the
presumption no longer applied because it had been overcome by
the State’s evidence, which is the very thing that Harris now
agrees was legally permissible.
¶31 	In light of all this, Counsel could have reasonably believed
“that an objection would backfire” by “call[ing] attention” to the
prosecutor’s comments and then “focus[ing]” the jury’s attention
on them. Isom, 2015 UT App 160, ¶¶ 38–39 (quotation simplified).
And given the possibility that the court might deny the objection,
Counsel could have also reasonably believed that this would give
“some appearance of judicial approval” or “official imprimatur”
to the prosecutor’s comments. Mahorney v. Wallman, 917 F.2d 469,
473 & n.4 (10th Cir. 1990). Put simply, because of the uncertainties
in the law, an objection was far from certain to succeed, and it
might also focus the jury’s attention on the very statement that
Harris now finds to be so troubling. Counsel’s decision to refrain
from objecting therefore was not objectively unreasonable.
¶32 	The second reason why Harris’s deficient performance
claim fails has to do with how Counsel chose to respond below
instead. In other cases involving ineffective assistance claims
based on an attorney’s failure to object to a statement made
during 	closing 	argument, 	we’ve 	recognized 	that 	a 	defense

State v. Harris
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attorney may reasonably decide that, “rather than highlight[ing]
the overall issue for the jury,” counsel will instead address the
issue “during [counsel’s] own closing argument.” State v. Bermejo,
2020 UT App 142, ¶ 90, 476 P.3d 148 (quotation simplified); see also
State v. Mason, 2024 UT App 171, ¶ 41, -- P.3d -- (noting that
counsel reasonably “chose to respond to the prosecutor’s closing
argument through a responsive closing argument of his own, as
opposed to making an objection”).
¶33 	As 	discussed, 	during 	his 	own 	closing, 	Counsel 	read
Instruction 22 to the jury, thus reminding them that, in the court’s
words, the “law presumes that the defendant is not guilty of the
crimes charged” and that the “presumption persists unless the
prosecution’s evidence convinces you beyond a reasonable doubt
that the defendant is guilty.” With this as the springboard,
Counsel then argued that jurors should “start with the position
that the defendant is not guilty,” that they should “go through
those instructions, each one of those elements, one by one, and
ask, did the prosecution prove to me beyond a reasonable doubt
that this thing happened,” and that “work[ing] that way” is
“important because it keeps the position of the defendant and the
prosecution where they are supposed to be” because the “system
is designed to work this way.” By doing so, Counsel directly
responded to the prosecutor’s arguments by reiterating that
Harris 	was 	presumed 	innocent 	and 	then 	arguing 	that 	the
presumption had not been overcome. Given the uncertainty in the
law discussed above, Counsel could reasonably think that this
was the optimal approach, because approaching the problem this
way allowed Counsel to remind jurors of the presumption of
innocence without the potential exposure that would come if an
objection to the prosecutor’s statement was overruled in front of
the jury.
¶34 	In short, because Counsel did not object below, we have no
occasion to directly confront the question of whether statements
such as those made by the prosecutor are improper. And even
with this opinion, we regard that as an open question. But the
question before us in this appeal is whether Counsel provided

State v. Harris
20220791-CA 	14 	2024 UT App 191
ineffective assistance by not objecting. Because no controlling case
has confronted the underlying question, and because there’s some
reason to think that the district court would have overruled the
objection on either legal or contextual grounds, we conclude that
the statement at issue was not “so improper that counsel’s only
defensible choice was to interrupt those comments with an
objection,” Houston, 2015 UT 40, ¶ 76 (emphasis in original,
quotation otherwise simplified). Counsel could reasonably decide
to not object and instead respond by making his own argument
about the presumption of innocence in his own closing argument.
We therefore reject Harris’s ineffectiveness claim for a lack of
deficient performance.3
B. 	Plain Error
¶35 	In addition to asserting ineffective assistance, Harris also
argues that the district court “plainly erred by failing to correct
the prosecutor’s statement sua sponte.” We disagree.
¶36 	One of the requirements of plain error is that the error must
“have been obvious to the trial court.” State v. Cesspooch, 2024 UT
App 15, ¶ 7, 544 P.3d 1046 (quotation simplified), cert. denied, 550
P.3d 994 (Utah 2024). “An error is obvious only if the law
governing the error was clear at the time the alleged error was
3. In his brief, Harris repeatedly argues that Counsel performed
deficiently by not “objecting” to the prosecutor’s statement. At
times, he also relatedly argues that Counsel performed deficiently
by not “correcting the prosecutor’s misstatement of law” himself
in his own closing argument. To the extent that this was intended
to be a separate ineffective assistance claim, we reject it for the
same reasons given above—namely, (i) because the law was (and
remains) uncertain in Utah on whether such statements are
impermissible, 	there 	was 	nothing 	definitive 	for 	Counsel 	to
“correct,” and (ii) in any event, Counsel adequately responded by
making an argument in his closing that emphasized his view of
how the presumption of innocence should be applied in Harris’s
favor.

State v. Harris
20220791-CA 	15 	2024 UT App 191
made.” Id. ¶ 10 (quotation simplified). But an error is not obvious
if there is “no Utah case law addressing this specific factual
scenario” and the law that did exist at the time does “not clearly
encompass” the situation in question. State v. Van Huizen, 2019 UT
1, ¶ 31, 435 P.3d 202.
¶37 	As discussed, at the time of Harris’s trial, no controlling
case had addressed a prosecutor’s ability to argue in closing that
the presumption of innocence no longer applied, much less drawn
a particular distinction between a prosecutor’s ability to argue
that the presumption no longer attached and a prosecutor’s ability
to argue that it had been overcome by the evidence. Harris’s plain
error claim thus fails.
CONCLUSION
¶38 	Counsel did not provide ineffective assistance by failing to
object to the prosecutor’s statement in closing argument that
Harris’s presumption of innocence was “gone,” and the district
court did not plainly err by failing to correct the statement sua
sponte. We therefore affirm Harris’s convictions.4
4. 	Harris’s 	appellate 	arguments 	are 	based 	solely 	on 	the
prosecutor’s closing argument. In its responsive brief, the State,
on its own, pointed out that with respect to the third charge, the
jury convicted Harris of the lesser included offense of assault with
bodily injury, which is a class B misdemeanor, but the district
court mistakenly entered judgment on the original charge of
assault 	with 	substantial 	bodily 	injury, 	which 	is 	a 	class 	A
misdemeanor. The State accordingly suggested that we should
remand the case to the district court so that the court can correct
the error. In his reply brief, Harris did not acknowledge or
respond to this issue.
We appreciate the State’s diligence and candor. In similar
circumstances, however, we’ve recognized that a district court “is
(continued…)

State v. Harris
20220791-CA 	16 	2024 UT App 191
able” to make such a correction “at any time” under rule 30(b) of
the Utah Rules of Criminal Procedure. State v. Cady, 2018 UT App
8, ¶ 41 n.9, 414 P.3d 974. As a result, while we have no need to
formally remand for correction of this error, we recognize that
Harris may “make the appropriate motion to the trial court”
himself as he sees fit. Id.