State v. Powell

2007 UT 9
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20050810
Plaintiff and Appellee,
v.
F I L E D
Thomas Charles Powell,
Defendant and Appellant. 	January 23, 2007
---
Third District, Salt Lake
The Honorable Judith Atherton
No. 031904386
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Matthew D. Bates,
Asst. Att’y Gen., Kenneth R. Updegrove, Salt Lake
City, for plaintiff
Elizabeth Hunt, Salt Lake City, for defendant
---
DURRANT, Justice:
INTRODUCTION
¶1 	In a jury trial, Thomas Powell was convicted of
aggravated burglary, a first-degree felony, and attempted murder,
a second-degree felony. 	In this direct appeal, Powell presents
three arguments for reversal: (1) the district court’s jury
instruction for attempted murder erroneously allowed for a
conviction based on a “knowing” or “depraved indifference” mens
rea; (2) the district court erroneously denied his request to
instruct the jury on the lesser included offenses of assault and
aggravated assault; and (3) cumulative error undermined
confidence in the verdict.
¶2 	We reject each of Powell’s arguments and affirm his
convictions. 	Although the jury instruction regarding mens rea
was erroneous, the error was harmless. 	Further, the district
court correctly refused to grant Powell’s request for a lesser
included offense instruction because there was no rational basis
in the evidence presented at trial for a verdict acquitting
Powell of attempted murder and convicting him of assault or

No. 20050810 	2
aggravated assault. 	Finally, Powell’s cumulative error argument
is without merit because the errors he asserts were not, in fact,
errors.
BACKGROUND
¶3 	On the morning of January 12, 2003, Roselynn Ellis was
alone in a room at Zion’s Hotel in Salt Lake City. 	According to
Ellis, Thomas Powell entered her room at around eight o’clock and
offered to sell her some women’s clothes that he carried in a
bag. 	After Ellis refused to buy the clothes, Powell put a gun to
her head and said, “[M]ove, bitch, and I’ll kill you!” 	Ellis
responded, “Do it,” after which she heard the gun click and then
felt a bullet land on her shoe. 	After the gun failed to fire,
Powell beat Ellis with the gun multiple times, resulting in
severe cuts to the back of her head. 	Ellis struggled with Powell
and eventually forced him to flee the room. 	Ellis called a 9-1-1
dispatcher as she chased after Powell.
¶4 	Powell ran outside and got into the driver’s seat of a
black Cadillac. 	Tamara Ross, a woman with whom Powell and Ellis
were acquainted, was in the passenger’s seat. 	As Powell and Ross
attempted to drive away, Ellis tried to stop them by grabbing
onto the driver’s side door. 	Ellis heard Ross say, “Kill the
bitch.” 	Powell responded with “kill her, I’m trying,” or “kill
her, I can’t even knock her out . . . .” 	While Ellis held onto
the car, Powell pointed the gun at her head and pulled the
trigger. 	Once again, the gun did not fire. 	As Ross and Powell
sped away, Ellis was able to relay the Cadillac’s license plate
number to the 9-1-1 dispatcher. 	After returning to her room,
Ellis noticed that her purse was gone.
¶5 	Tamara Ross testified for the State as part of a plea
agreement to avoid being charged with Powell. 	Ross testified
that, while driving away, Powell saw, lying on the floor and
loaded with bullets, the magazine clip belonging to the gun he
used in the attack and stated, “That’s why the mother f-----
didn’t work!” 	According to Ross, Powell also told her that he
pistol-whipped Ellis. 	She witnessed Powell remove items from
Ellis’s purse and throw the purse out of the car window.
¶6 	Ross and Powell drove to Ross’s daughter’s house, where
Powell put his bloody clothes in a garbage bag and gave the gun
and the bag to Ross’s great-nephew, Geoffrey Taylor. 	Powell told
Taylor to get rid of them. 	Taylor and his cousin, Justin Ford,
took the gun and the bag in the Cadillac and went to dispose of
them.

1 Green v. Louder, 2001 UT 62, ¶ 14, 29 P.3d 638 (internal
quotation marks omitted).
2 See Utah R. Crim. P. 19(e); State v. Casey, 2003 UT 55,
¶ 39, 82 P.3d 1106 (concluding that in most circumstances the
“manifest injustice” standard of Utah Rule of Criminal Procedure
19(e) is synonymous with the “plain error standard” expressly
provided in Utah Rule of Evidence 103(d)).
3 	No. 20050810
¶7 	When the police located and stopped the black Cadillac,
Taylor told them that Powell had asked him to dispose of a gun
and a bag of clothing. 	The police arrested Taylor and Ford and
retrieved the gun from where Taylor had thrown it out of the car
window. 	The police also discovered bloody handprints on the
window of the car. 	Police officers responding to Ellis’s 9-1-1
call also inspected and photographed the disheveled hotel room.
They collected the bullet from the floor and also gathered
Ellis’s bloody clothing. 	Later that day, the police arrested
Powell at the home of Ross’s daughter.
¶8 	At trial, the above-stated facts were undisputed by
Powell, except for the testimony that he was Ellis’s assailant.
Powell’s sole defense was that he had been misidentified. 	Powell
admitted driving Ross to the hotel in the Cadillac the night
before the attack on Ellis, but claimed he was at the home of
Ross’s daughter on the morning the attack occurred.
¶9 	To cast doubt on Ellis’s ability to identify him,
Powell brought forth evidence to show that Ellis was not wearing
contacts at the time of the attack and had used alcohol and
cocaine the night before the attack. 	When the police showed
Powell to Ellis the day of the attack, she was unable to identify
him as her assailant until she was brought within arm’s length,
heard his voice, and he was instructed to put on a hat.
¶10 	Powell was convicted of attempted murder and aggravated
burglary. 	He was acquitted of aggravated robbery. 	Powell now
appeals his conviction from the district court. 	We have
jurisdiction pursuant to Utah Code section 78-2-2(3)(i).
STANDARDS OF REVIEW
¶11 	“Because jury instructions are statements of the law,
we review challenges to jury instructions under a correctness
standard.” 1 	Because Powell did not object to the attempted
murder instruction at trial, however, we review it under the
manifest injustice or plain error standard. 2

3 State v. Parra, 972 P.2d 924, 927 (Utah Ct. App. 1998).
4 See State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993).
5 State v. Pena, 869 P.2d 932, 938 (Utah 1994).
6 State v. Gomez, 2002 UT 120, ¶ 12, 63 P.3d 72 (quoting
State v. Gentry, 747 P.2d 1032, 1035 (Utah 1987)).
7 2003 UT 55, 82 P.3d 1106.
No. 20050810 	4
¶12 	A trial court’s refusal to grant a lesser included
offense instruction is a question of law, which we review for
correctness. 3
¶13 	As part of his cumulative error claim, Powell alleges
three separate errors: (1) that the district court erred in
allowing the prosecutor to misstate the evidence during closing
argument; (2) that the district court erred by not sua sponte
excluding testimony relating to Powell’s prior felony conviction;
and (3) that the district court erred in allowing Detective
Burningham to testify regarding Powell’s alias without personal
knowledge. 	Because Powell did not properly preserve his first
and second claims of error with respect to his cumulative error
claim at trial, we review them under the plain error standard. 4
Powell did preserve his claim of error regarding Detective
Burningham’s testimony. 	A trial court’s “rulings on the
admission of evidence . . . generally entail a good deal of
discretion.” 5 	Therefore, “‘[we] will not reverse the trial
court's ruling on evidentiary issues unless it is manifest that
the trial court so abused its discretion that there is a
likelihood that injustice resulted.’” 6
ANALYSIS
¶14 	Powell appeals his conviction for aggravated burglary
and attempted murder, raising three claims of alleged error.
First, he claims that his conviction for attempted murder should
be reversed and his case remanded for a new trial because the
jury instruction erroneously allowed for a conviction of
attempted murder based on a “knowing” or “depraved indifference”
mens rea. 	While the jury instruction was erroneous under our
decision in State v. Casey,7 we hold the resulting error was
harmless.
¶15 	Second, Powell claims that it was reversible error for
the district court to deny his request to instruct the jury on
the lesser included offenses of assault and aggravated assault.

8 See Utah R. Crim. P. 19(e) (“Unless a party objects to an
instruction or the failure to give an instruction, the
instruction may not be assigned as error except to avoid manifest
injustice.”).
9 Casey, 2003 UT 55, ¶ 39.
10 State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993).
5 	No. 20050810
While assault and aggravated assault are lesser included offenses
of attempted murder in this case, we hold that there was no
rational basis in the evidence presented at trial for a verdict
acquitting Powell of attempted murder and convicting him of
assault or aggravated assault. 	Therefore, the district court
properly refused to grant Powell’s request for a lesser included
offense instruction.
¶16 	Third, Powell claims his conviction should be reversed
and his case remanded for a new trial because cumulative error
undermined confidence in the verdict. 	But the errors Powell
alleges were not, in fact, errors. 	Therefore, we affirm Powell’s
convictions.
I. 	THE ERRONEOUS MENS REA JURY INSTRUCTION CONSTITUTED
HARMLESS ERROR
¶17 	Powell did not properly preserve his objection to the
jury instruction for appeal. 	Indeed, Powell stipulated in
advance to the instruction given to the jury. 	As a result, we
evaluate Powell’s claim of error for manifest injustice. 8 	Review
for manifest injustice requires us to engage in a plain error
analysis. 9 	We decline to discuss Powell’s claim under the
“invited error” doctrine because his claim fails under a plain
error analysis in that the jury instruction at issue resulted in
harmless error.
¶18 	Under the plain error standard, we may reverse the
district court on an issue not properly preserved for appeal when
a party can show the following: “[1] [a]n error exists; [2] the
error should have been obvious to the trial court; and [3] the
error is harmful . . . .” 10 	Applying this standard, we conclude
that the jury instruction was harmless error in that it resulted
in no prejudice to Powell’s substantive rights.
A. 	An Error Exists
¶19 	The district court erred by instructing the jury on
attempted murder based on a “knowing” or “depraved indifference”

11 The jury instruction at issue stated as follows:
Before you can convict the defendant, THOMAS
CHARLES POWELL, of the offense of Attempted
Criminal Homicide . . . you must find from
all of the evidence and beyond a reasonable
doubt each and every one of the following
elements of that offense:
1. 	That on or about the 12 th day of January,
2003, . . . THOMAS CHARLES POWELL, attempted
to cause the death of Roselynn Ellis; and
2. 	That said defendant then and there did
so: (a) intentionally or knowingly; or
(b) acting under circumstances evidencing a
depraved indifference to human life, he
knowingly engaged in conduct which created a
grave risk of death to Roselynn Ellis and
thereby attempted to cause the death of
Roselynn Ellis; and
3. 	That said defendant then and there did so
unlawfully.
12 Utah Code Ann. § 76-4-101 (1999).
13 Casey, 2003 UT 55, ¶ 38.
14 Id. ¶ 51 (“We hold that in order to convict a defendant
of attempted murder, the prosecution must establish that the
defendant acted intentionally; it is not enough that he or she
acted knowingly.”).
15 Id. ¶ 38; see Utah Code Ann. § 76-4-101 (1999).
No. 20050810 	6
mens rea. 11 	The State concedes that the district court’s
instruction was erroneous. 	In Casey, we held that to convict a
defendant of attempted murder under Utah’s criminal attempt
statute, 12 “the prosecution must show that the defendant acted
intentionally.” 13 	We explicitly distinguished this from a
knowing mens rea. 14 	We held in Casey that neither a knowing nor
a depraved indifference mens rea is sufficient to satisfy the
intent requirement of Utah’s criminal attempt statute. 15
Therefore, the district court’s instruction allowing the jury to
convict Powell of attempted murder based on a mens rea of
intentional, knowing, or depraved indifference was error.
B. 	The Error Should Have Been Obvious
¶20 	The erroneous jury instruction should have been obvious
to the district court, given that our opinion in Casey provides

16 Casey, 2003 UT 55, ¶ 51.
17 See id. ¶¶ 2-5.
18 State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993).
19 Id. at 1208-09.
7 	No. 20050810
clear direction on the mens rea required to convict a defendant
of attempted murder. 16 	Moreover, the facts in Casey were similar
to those in Powell’s case. 	Both cases involved challenges to the
mens rea element of attempted murder instructions where the
victim testified that the defendant attempted to kill him or her
with a firearm that failed to fire. 17 	Given Casey’s recent,
clear direction and its similarities to Powell’s case, the
erroneous jury instruction should have been obvious to the
district court.
C. 	The Error Was Not Harmful
¶21 	Although the first two elements of the plain error
analysis are satisfied, Powell’s claim fails because the jury
instruction was harmless error; in other words, it was an error
not prejudicial to Powell’s substantive rights. 	The third
element of the plain error analysis requires that the party
seeking review show that the error was harmful. 18 	We have
interpreted this as requiring more than the mere possibility that
the outcome might have been different without the error, but a
showing that, “absent the error, there is a reasonable likelihood
of a more favorable outcome for the appellant, or phrased
differently, our confidence in the verdict is undermined.” 19
¶22 	In this case, the uncontested evidence demonstrated
that Powell attacked Ellis with the specific intent to kill.
Ellis testified that Powell put the gun to her head and
threatened her life and that she then heard the trigger click and
felt a bullet fall on her foot. 	When the gun did not fire,
Powell struck Ellis with the gun multiple times, causing severe
lacerations to her head. 	Ross and Ellis also testified that,
while driving away, Powell pointed the gun at Ellis’s head and
pulled the trigger. 	The evidence showing intent to kill is
further strengthened by Ross’s testimony that, upon finding the
loaded magazine on the floor of the car, Powell exclaimed,
“That’s why the mother f----- didn’t work!”
¶23 	Powell presented no evidence contesting these details
of the assault; his sole defense was that he had been
misidentified as Ellis’s assailant. 	The jury concluded, however,

20 See id. at 1208.
21 A defendant may be granted a lesser included offense
instruction when:
(a) It is established by proof of the same or
less than all the facts required to establish
the commission of the offense charged; or
(b) It constitutes an attempt, solicitation,
conspiracy, or form of preparation to commit
the offense charged or an offense otherwise
included therein; or
(c) It is specifically designated by a
statute as a lesser included offense.
Utah Code Ann. § 76-1-402(3) (1999).
22 “The court shall not be obligated to charge the jury with
respect to an included offense unless there is a rational basis
for a verdict acquitting the defendant of the offense charged and
convicting him of the included offense.” 	Utah Code Ann.
§ 76-1-402(4) (1999).
23 671 P.2d 152 (Utah 1983).
24 Id. at 158-59.
No. 20050810 	8
that Powell was in fact Ellis’s assailant. 	As a result, the
uncontested evidence would allow the jury only one reasonable
conclusion: that Powell intentionally attempted to cause Ellis’s
death. 	Therefore, even if the district court had correctly
instructed the jury that attempted murder requires specific
intent to kill, there is no “reasonable likelihood of a more
favorable outcome” for Powell. 20 	Because this harmless error
does not undermine our confidence in the verdict, Powell’s claim
fails under the plain error standard.
II. 	POWELL WAS NOT ENTITLED TO RECEIVE A LESSER
INCLUDED OFFENSE INSTRUCTION
¶24 	The district court properly denied Powell’s request to
have the jury instructed on the lesser included offenses of
assault and aggravated assault. 	A lesser included offense is
defined in Utah Code section 76-1-402(3). 21 	A defendant’s
request for a lesser included offense instruction is evaluated
under the evidence-based standard set out in section
76-1-402(4). 22 	We interpreted this standard in State v. Baker,23
outlining a two-pronged test for determining when a defendant is
entitled to a lesser included offense instruction. 24 	Under this
test, a defendant must show (1) that the charged offense and the

25 Id. at 159 (quoting Utah Code Ann. § 76-1-402(4) (1999)).
26 Id. at 158-59.
27 Id. at 156 (citing Beck v. Alabama, 447 U.S. 625, 633
(1980)).
9 	No. 20050810
lesser included offense have overlapping statutory elements and
(2) that the evidence “provides a ‘rational basis for a verdict
acquitting the defendant of the offense charged and convicting
him of the included offense.’” 25 	In this case, Powell’s claim
fails under the second prong of the test.
A. 	Attempted Murder and Assault or Aggravated Assault Have
Overlapping Statutory Elements
¶25 	In order to be entitled to a lesser included offense
instruction, a defendant must show that the charged offense and
the lesser offense have overlapping statutory elements. 	This
will depend on whether “there exist[s] some overlap in the
statutory elements of allegedly ‘included’ offenses” and whether
“the same facts tend to prove elements of more than one statutory
offense.” 26 	The State concedes that there is overlap in the
statutory elements of attempted murder and assault or aggravated
assault and that evidence offered at trial tends to prove
elements of both attempted murder and assault or aggravated
assault. 	Therefore, in this case assault and aggravated assault
are lesser included offenses of attempted murder.
B. 	There Was No Rational Basis in the Evidence For a Verdict
Acquitting Powell of Attempted Murder and Convicting Him of
Assault or Aggravated Assault
¶26 	Although assault and aggravated assault are lesser
included offenses of attempted murder in this case, Powell is not
entitled to have the jury instructed on these offenses because
there was no rational basis in the evidence presented at trial
for a verdict acquitting Powell of attempted murder and
convicting him of the lesser included offenses of assault or
aggravated assault.
¶27 	We have stated that the purpose of lesser included
offense instructions is to give the defendant the full benefit of
the reasonable doubt standard by “afford[ing] the jury a less
drastic alternative than the choice between conviction of the
offense charged and acquittal.” 27 	But we have also stated that
lesser included offense instructions should not be used in such a
way as to allow the jury to return a “compromise, or otherwise

28 State v. Crick, 675 P.2d 527, 531 (Utah 1983).
29 Baker, 671 P.2d at 159; Crick, 675 P.2d at 531.
30 Baker, 671 P.2d at 159 (“[I]f there is a sufficient
quantum of evidence to raise a jury question regarding a lesser
offense, then the court should instruct the jury regarding the
lesser offense.”).
31 See id. (“[W]hen the evidence is ambiguous and therefore
susceptible to alternative interpretations, and one alternative
would permit acquittal of the greater offense and conviction of
the lesser, a jury question exists and the court must give a
lesser included offense instruction at the request of the
defendant.”).
32 State v. Dahlin, 695 N.W.2d 588, 596 (Minn. 2005).
No. 20050810 	10
unwarranted verdict.” 28 	Moreover, we have held that a
defendant’s right to a lesser included offense instruction is
limited by the evidence and only justified where there is a
“rational basis for a verdict acquitting the defendant of the
offense charged and convicting him of the included offense.” 29
In determining whether the evidence supports a lesser included
offense instruction, a trial court does not weigh the evidence,
but only considers whether the record taken as a whole provides a
rational basis to acquit the defendant of the greater offense
while convicting him of the lesser included offense. 30
Additionally, a trial court views the evidence in the light most
favorable to the defendant requesting the instruction. 31 	The
“light most favorable” standard establishes a procedural
safeguard that protects the defendant’s right to the presumption
of innocence, maintains the state’s burden of proving the
defendant’s guilt, and reserves the responsibility of evaluating
the weight and credibility of the evidence for the jury. 32
¶28 	In Powell’s case, there was no rational basis in the
evidence requiring a lesser included offense instruction. 	At
trial, the uncontradicted evidence did not provide a rational
basis for acquitting of attempted murder while simultaneously
convicting of assault or aggravated assault. 	The State’s
evidence overwhelmingly demonstrated that Powell attacked Ellis
with the specific intent to kill. 	Ellis testified that Powell
put the gun to her head, threatened her life, and then attempted
to fire the gun. 	When the gun did not fire, Powell beat Ellis
with the gun multiple times. 	Ross and Ellis also testified that,
while escaping in the car, Powell pointed the gun at Ellis’s head
and pulled the trigger. 	Ross testified that, upon finding the

33 See In re Winship, 397 U.S. 358, 364 (1970) (holding that
the Due Process Clause of the Fourteenth Amendment protects
defendants against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the
crime).
34 678 P.2d 785 (Utah 1984).
35 Id. at 786.
36 Id. at 790.
37 Id.
38 Id.
11 	No. 20050810
loaded magazine on the floor of the car, Powell exclaimed,
“That’s why the mother f----- didn’t work!” 	As stated above,
Powell presented no evidence contesting these details of the
attack. 	His sole theory of the case was that he had been
misidentified as Ellis’s assailant. 	As a result, there was not
sufficient evidence in the record to permit a reasonable jury to
acquit him of attempted murder and convict him of assault or
aggravated assault.
¶29 	This is not to say that a defendant is required to
testify, and it is also not to say that a defendant is obligated
to present any evidence at trial. 	A defendant may simply point
to ambiguities or inconsistencies in the evidence presented by
the State and require the State to prove every element of the
offense beyond a reasonable doubt. 33 	Thus, the State errs in
arguing that, under our decision in State v. Shabata, 34 if a
defendant does not testify he may not request a lesser included
offense instruction based on an alternative theory.
¶30 	In Shabata, the defendant was charged with the murder
of his friend. 35 	He requested a lesser included offense
instruction for manslaughter, which the trial court refused. 36
We upheld the trial court’s refusal, explaining that “[a]ll the
evidence [the] defendant presented at trial was to the effect
that he had not caused [his friend’s] death and that he had never
injured or even argued with him.” 37 	We concluded that the
defendant’s “own theory of defense precluded the requested
instruction on manslaughter.” 38 	The State suggests that Shabata
stands for the proposition that a defendant may never receive a
lesser included offense instruction if he argues that he was not
the assailant and fails to produce any alternative evidence.
This is not what Shabata holds. 	As a strategic matter, defense

39 People v. Negron, 699 N.E.2d 32, 35 (N.Y. 1998).
40 United States v. Moore, 108 F.3d 270, 274 (10th Cir.
(continued...)
No. 20050810 	12
counsel may elect not to put on any evidence or not to offer an
alternative theory of the case. 	It is still possible that
evidence presented solely by the State will allow for a lesser
included offense instruction. 	In Shabata, there was simply no
rational basis in the evidence presented at trial requiring a
lesser included offense instruction.
¶31 	In this case, there were no ambiguities or
inconsistencies in the State’s evidence. 	Having opted to rely
solely upon the misidentification theory, Powell made no attempt
to contradict the evidence. 	Even so, Powell would not have been
precluded from receiving a lesser included offense instruction on
a different theory than the one he relied upon, if there had
existed a sufficient basis in the record to support an
alternative jury instruction. 	But similar to Shabata, there was
no such evidence in this case. 	The State’s evidence
overwhelmingly supported an attempted murder conviction. 	Thus,
we hold that there was no rational basis in the evidence
presented at trial for the district court to grant Powell’s
request for a lesser included offense instruction for assault or
aggravated assault.
¶32 	Powell argues that the jury could have potentially
disbelieved the witnesses’ testimony and on that basis could have
acquitted him of attempted murder and convicted him of assault or
aggravated assault. 	In support of this, Powell points out that
Ellis had consumed alcohol and drugs the night before the attack
and that Ross received a plea bargain from the State in return
for her testimony, thus undermining their credibility. 	But these
attacks went only to the witnesses’ credibility generally. 	There
is no basis in the record “upon which the jury could have
simultaneously credited the testimony necessary to establish the
lesser offense” and “rejected the very same testimony insofar as
it established the greater offense . . . .” 39 	In other words,
there was no rational basis in the evidence for the jury to
accept the witnesses’ testimony as establishing assault or
aggravated assault while rejecting that same testimony as
establishing attempted murder. 	It is possible that “[t]hrough
contradictory testimony, cross-examination, or an element of the
prosecution’s case, the defense may establish a rational basis
for the jury to infer that some portions of discrete items of
evidence are credible and other portions of those same items are
not credible.” 40 	However, Powell did not do so.

40 (...continued)
1997); see People v. Scarborough, 402 N.E.2d 1127, 1131 (N.Y.
1980) (holding that potential for jury disbelief may be a factor
in determining whether to give a lesser included offense
instruction where the reliability of the testimony is compromised
“by the introduction of contradictory proof or by disclosure on
cross-examination of faulty memory, bias, lack of adequate
vantage point for observation and the like”).
41 Scarborough, 402 N.E.2d at 1132.
42 State v. Crick, 675 P.2d 527, 532 (Utah 1983).
43 See State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993).
13 	No. 20050810
¶33 	In cases such as the one before us, where the
defendant’s request for a lesser included offense instruction is
based on sheer speculation, the defendant is not entitled to a
jury instruction. 41 	Instructing the jury as to lesser included
offenses for which there is no support in the evidence would
“allow the jury to preempt the prosecutor’s function in charging
offenses and the judge’s function in imposing sentences.” 42
III. 	POWELL’S CUMULATIVE ERROR CLAIM FAILS
¶34 	Powell asserts a claim of prosecutorial misconduct and
two claims of evidentiary error. 	He argues that the cumulative
effect of these errors undermines confidence in the verdict and
requires us to grant a new trial. 	Powell’s cumulative error
claim is meritless, however, because none of the errors he
asserts were, in fact, errors.
A. 	There Was No Prosecutorial Misconduct
¶35 	On the record before us, there is no evidence of
prosecutorial misconduct. 	Powell contends that the prosecutor
misstated the evidence when he told the jury in closing argument
that Powell attempted to shoot Ellis “four times” and racked the
slide of the gun in order to load a new round into the chamber.
Powell argues that the evidence does not support these
conclusions and, therefore, the statements undermined the
fairness of his trial because they drew jurors’ attention to
facts not in evidence. 	Because Powell did not object to these
statements at trial, we review for plain error. 43
¶36 	Generally, a claim of prosecutorial misconduct as to a
closing argument has two components. 	First, the defendant must

44 State v. Troy, 688 P.2d 483, 486 (Utah 1984) (citations
and internal quotation marks omitted).
45 Id. (citations and internal quotation marks omitted).
46 Dunn, 850 P.2d at 1223.
No. 20050810 	14
demonstrate that the prosecutor called to the jurors’ attention
“matters which they would not be justified in considering in
determining their verdict.” 44 	Second, the defendant must show
that the jury was “probably influenced by those remarks.” 45 	We
have stated, however, that counsel for both sides have
“considerable latitude” in their arguments to the jury; they “may
discuss fully their viewpoints of the evidence and the deductions
arising therefrom.” 46
¶37 	In this case, we conclude that the district court did
not plainly err in not sua sponte striking the prosecutor’s
remarks regarding the number of times Powell pulled the trigger.
While the evidence is unclear as to how many times Powell pulled
the trigger, it is clear that he pulled it multiple times. 	Ellis
testified that she heard a “clicking” noise in the hotel room.
Ellis and Ross also testified that Powell pulled the trigger
again while in the car. 	In addition, Powell’s racking the slide
of the gun may have indicated an attempt to inject another round
into the chamber. 	Thus, the State’s evidence shows, at the very
least, that Powell pulled the trigger of the gun on two
occasions, both times aiming the firearm directly at Ellis’s
head. 	In addition, a bullet, which was later recovered by the
police, did fall from the gun and land on Ellis’s foot,
indicating some type of movement in the chamber, whether it was
by racking the slide of the gun or not. 	In light of this
evidence, even if the State’s argument regarding the number of
times Powell pulled the trigger was not fully supported by the
record, it is highly unlikely that the jury was influenced by the
arguably unsupported portion of this argument in arriving at
their verdict.
B. 	The District Court’s Failure to Sua Sponte Preclude
Powell’s Testimony That He Had Been Convicted of a Felony
Was Not Plain Error
¶38 	Powell argues that the district court erred in failing
to exclude evidence of his prior felony conviction. 	The evidence
of that conviction was admitted through the State’s cross-
examination of Powell. 	The State asked, “Have you ever been
convicted of a felony?” 	Powell replied, “Yes,” and the State did
not inquire further. 	Powell argues that in failing to preclude

47 717 P.2d 1325 (Utah 1986).
15 	No. 20050810
this testimony, the district court violated Rule 609 of the Utah
Rules of Evidence. 	Because Powell’s counsel did not object to
the State’s question, we review for plain error.
¶39 	Rule 609 specifies the manner in which criminal
convictions may be used for “the purpose of attacking the
credibility of a witness.” 	The rule distinguishes among criminal
convictions based on both their nature and their attendant
punishment. 	Subsection (a)(1) provides that evidence that an
accused has been convicted of a crime punishable by death or
imprisonment in excess of one year “shall be admitted if the
court determines that the probative value of admitting this
evidence outweighs its prejudicial effect.” 	Subsection (a)(2)
provides that “evidence that any witness has been convicted of a
crime shall be admitted if it involved dishonesty or false
statement, regardless of the punishment.”
¶40 	The record includes no indication of whether the felony
conviction at issue involved dishonesty or false statement. 	If
it was such a conviction, it was admissible whether or not its
probative value outweighed its prejudicial effect. 	If it was not
such a conviction, it was admissible only if it was punishable by
imprisonment in excess of one year and its probative value
outweighed its prejudicial effect. 	The record includes no
indication of the length of punishment associated with the crime
at issue, although the fact that it was a felony suggests that it
was in excess of a year, at least if it was a Utah conviction.
¶41 	Where a weighing of probative value versus prejudicial
effect is required, we look to the factors we set forth in State
v. Banner:47
[1] the nature of the crime, as bearing on
the character for veracity of the witness.
[2] the recentness or remoteness of the prior
conviction . . . .
[3] the similarity of the prior crime to the
charged crime, insofar as a close resemblance
may lead the jury to punish the accused as a
bad person.
[4] the importance of credibility issues in
determining the truth in a prosecution tried

48 Id. at 1334 (citations omitted).
49 Dunn, 850 P.2d at 1208.
No. 20050810 	16
without decisive nontestimonial evidence
. . . .
[5] the importance of the accused’s
testimony, as perhaps warranting the
exclusion of convictions probative of the
accused’s character of veracity . . . . 48
¶42 	The case before us is not well-suited to a Banner
analysis. 	The question and answer at issue here included no
information with respect to the first three Banner factors.
Powell testified only that he had been convicted of a felony,
without disclosing the nature, timing, or facts of the crime.
While, as to the last two factors, credibility issues and the
accused’s testimony were important, without any evidence
regarding the first three factors, a full Banner analysis is
precluded.
¶43 	Thus, it is unclear from the record that a Banner
analysis was even required as to the unspecified felony at issue.
And, if it was, it is unclear, given the paucity of information
about the felony, what result a Banner analysis would yield.
Under these circumstances, even if we assume the district court
erred in failing to sua sponte preclude Powell’s testimony that
he had been convicted of a felony, the error cannot be said to
constitute plain error. 	To satisfy a plain error standard, the
error must be obvious to the trial court. 49 	If there was an
error here, it was far from obvious.
¶44 	Nor did evidence of the conviction unduly prejudice
Powell. 	The jury knew only that Powell had been convicted of a
single felony. 	The jury did not know the nature of the crime or
any of the details. 	It is unlikely that reference to a single,
unnamed felony conviction so prejudiced the jury against Powell
that it altered the outcome of the trial where there was
significant evidence implicating Powell’s involvement.
¶45 	Powell further argues that his counsel was ineffective
in failing to object to the prosecutor’s question. 	To establish
a claim of ineffective assistance of counsel, the defendant must
prove two elements. 	First, he must demonstrate that specific
acts or omissions of counsel fell below an objective standard of

50 Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
51 Id. at 694.
52 Id. at 689 (internal quotation marks omitted).
53 Taylor v. Warden, 905 P.2d 277, 282 (Utah 1995) (quoting
Fernandez v. Cook, 870 P.2d 870, 876 (Utah 1993)).
17 	No. 20050810
reasonableness. 50 	Second, he “must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.” 51
¶46 	In proving that counsel’s representation fell below an
objective standard of reasonableness, the defendant must rebut “a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound
trial strategy.” 52 	“We give counsel wide latitude to make
tactical decisions and will not question such decisions unless we
find ‘no reasonable basis’ for them.” 53
¶47 	The decision by Powell’s counsel not to object was
reasonable. 	While the record includes no specifics regarding the
felony that was the subject of cross-examination, it does include
information about Powell’s criminal record that sheds light on
why that cross-examination may have been so generic. 	According
to the presentence investigation report, Powell has a lengthy
criminal record, including in the last ten years a felony theft
conviction and a felony escape conviction. 	He also has a theft
by deception conviction. 	The State could have sought to admit
all of these convictions under Rule 609. 	In light of what could
have come in, defense counsel’s failure to object may have been a
strategic concession made in order to prevent a further
elaboration of Powell’s criminal record. 	Moreover, as noted, and
as further supported by the possibly strategic bases for
counsel’s nonobjection, Powell was not prejudiced by the
admission of this single generic felony.
C. 	Evidence Regarding Powell’s Alias Was Properly Admitted
¶48 	The district court did not abuse its discretion in
allowing Detective Burningham to testify regarding Powell’s
alias. 	At trial, Powell testified that he did not give the alias
James Johnson to police when he was booked. 	The State then
called Detective Burningham and questioned him regarding the name

No. 20050810 	18
Powell used. 	Burningham was the case manager who compiled the
reports surrounding Powell’s arrest. 	Burningham testified that
he was “told” by other officers that Powell gave the name James
Johnson when he was booked; Burningham was not present at the
time of the booking. 	Burningham used this information, as well
as reports written by the officers, to compile his own report.
During his testimony, Burningham was handed a copy of his initial
report by the State and testified that the name written in his
report, which Powell used at booking, was James Johnson.
¶49 	Powell made two objections to Detective Burningham’s
testimony. 	He first objected that Burningham’s testimony was
given without personal knowledge; this objection was overruled.
Powell next objected to the testimony as hearsay, which objection
was also overruled, although Powell does not now raise this issue
on appeal. 	While acknowledging that it would be improper for
Burningham to testify as to the name under which Powell was
booked, the State claims that Burningham merely testified as to
the name he was “told” by other officers that Powell used.
¶50 	An examination of the testimony reveals the State to be
correct. 	The prosecutor questioned Burningham as follows:
Q: 	All right. 	In this specific case, what
was the name that was given to the
officers, that you got in booking for
the individual that’s sitting right
there when you--
. . . .
Q: 	. . . What is the name that was used?
A: 	I--I understood and I was told that the
name used and booked under was James
Johnson.
. . . .
Q: 	I hand you--do you recognize that
particular sheet of paper that I’ve
handed you?
A: 	Yes, sir.
Q: 	What is that?
A: 	That is part of the initial report.

54 Utah R. Evid. 602 (“A witness may not testify to a matter
unless evidence is introduced sufficient to support a finding
that the witness has personal knowledge of the matter.”).
19 	No. 20050810
Q: 	And what is the name that’s written on
there that you presented the DA’s
office?
A: 	For the arrestee, it lists the name as
Johnson, James
(emphasis added).
¶51 	Powell concedes on appeal that Burningham’s testimony
was not hearsay. 	Thus, we will look solely at whether the
district court abused its discretion in overruling Powell’s
objection based on lack of personal knowledge. 	Under Rule 602 of
the Utah Rules of Evidence, a witness may testify only to matters
of which he has personal knowledge. 54 	Powell argues that
detective Burningham had no personal knowledge of whether Powell
was booked under the name James Johnson. 	Detective Burningham
had personal knowledge, however, regarding what he was “told” by
the police officers. 	Burningham also had personal knowledge
regarding the initial report that he made, in which he recorded
the alias Powell gave to police. 	Under Rule 602, he could
testify to those matters. 	Thus, the district court properly
overruled Powell’s objection.
¶52 	Even if admission of the testimony were error, it would
be harmless because Powell’s use of an alias was already a matter
of judicial record. 	At an arraignment on May 17, 2004, Judge
Atherton called the case of “Thomas Charles Powell.” 	Powell
answered, “Yes.” 	Judge Atherton then asked, “Are you also known
as James Johnson?” 	Powell replied, “Yeah, they say that.” 	The
judge then clarified, “Okay. 	That’s the same person, right?”
Powell responded, “Yeah.” 	Thus, even had the district court
sustained the hearsay or lack of personal knowledge objection,
the State would have had little trouble getting Powell’s alias
before the jury, and as a result, any error would be harmless.
CONCLUSION
¶53 	We reject all three of defendant Thomas Powell’s claims
on appeal. 	First, the erroneous jury instruction given at trial
constituted harmless error. 	Second, the district court properly
refused to grant Powell’s request for a lesser included offense
instruction. 	Third, there was no cumulative error. 	Accordingly,

No. 20050810 	20
we affirm Powell’s two felony convictions in the district court
for aggravated burglary and attempted murder.
---
¶54 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.