Bluffdale City v. Verive

2026 UT App 101
THE UTAH C OURT OF APPEALS
BLUFFDALE C ITY ,
Appellee,
v.
A ARON VERIVE,
Appellant.
Opinion
No. 20250757-CA
Filed July 2, 2026
Third District Court, West Jordan Department
The Honorable John Nielsen
No. 251902424
Nicolas C. Wilde, Attorney for Appellant
Eric R. Lemus and Samantha B. Smith,
Attorneys for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and JOHN D. LUTHY
concurred.
HARRIS, Judge:
¶1 	Following a bench trial, Aaron Verive was convicted of
four class B misdemeanors: two counts of unlawful detention and
two counts of domestic violence in the presence of a child. Verive
appeals 	his 	convictions, 	arguing 	that 	(1) 	the 	evidence 	was
insufficient to support his convictions, (2) the trial court erred by
admitting evidence of uncharged acts, and (3) the prosecutor
should not have been allowed to argue that Verive’s refusal to
speak with police at his residence could be used as evidence of his
consciousness of guilt. For the reasons that follow, we discern no
reversible error and therefore affirm his convictions.

Bluffdale City v. Verive
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BACKGROUND1
The Incident
¶2 	In the fall of 2024, Verive and his wife, Amelia,2 were in the
process of divorcing. At this time, the couple had been married
for about seven years and had two children, ages two and four.
Amelia had recently moved into her parents’ house in South
Jordan with the children, while Verive was still living in the
couple’s previous residence in Bluffdale.
¶3 	One day during this time period, Verive, Amelia, and the
children 	“went 	to 	see 	[Verive’s] 	daughter 	from 	a 	previous
marriage,” and they “took one car.” That evening, after the visit,
Amelia drove to Bluffdale to drop Verive off at his residence.
When they got there, Verive told Amelia that “he’d like [her] to
come inside the house and talk for a bit.” Amelia agreed and
followed Verive through the garage and into the kitchen, while
the children remained in the car in the driveway.
¶4 	While inside, Verive told Amelia that “he wanted to try to
save 	the 	marriage.” 	Amelia 	later 	said 	that 	during 	this
conversation, Verive “was passionate because at first he just asked
[her] to . . . give it a chance and try to work it out” but after Amelia
“said no,” the conversation then “got a little more emotional.” At
that point, Amelia “said [she] wanted to leave.” But Verive “kept
saying [she] should stay and talk more.” Amelia then “tried to
leave through the door that led to the garage,” but Verive “kept
1. “On appeal from a bench trial, we view and recite the evidence
in the light most favorable to the trial court’s findings; we present
additional evidence only as necessary to understand the issues on
appeal.” Bountiful City v. Sisch, 2023 UT App 141, n.1, 540 P.3d
1164 (cleaned up).
2. A pseudonym.

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convincing [her] to stay.” Amelia then told Verive that “the [kids
were] in the car” and that she “need[ed] to just get to them.”
Verive said he would come and “stay in the car with [Amelia] and
continue to talk.” But when Amelia again tried to leave through
the garage door, Verive “stood in the way of the door” and put
his hand on the doorknob. “[A]t some point he did open the door
for [her],” as if “inviting [her] to leave,” but he said, “I will be in
the car with you until I’m done talking to you.” The couple kept
talking, and eventually the “police [were] brought up,” and
Amelia said, “Fine. I’ll call them.” She took her “phone out to call
and he tried to grab it, but [she] was able to put it away.” Verive
then “[c]losed the door that led to the garage.” They “talked for
[about] a minute more and then [Amelia] said [she] was done
talking and then [she] left through the other door.” In total, the
couple’s conversation lasted “20 to 25 minutes.”
¶5 	After Amelia left the house, she “ran to [the] car” and got
in, “and then [Verive] came out through the garage door and he
ran to the car.” When Amelia “saw him, [she] tried to leave
immediately.” She “backed out of the driveway” and “was going
to go forward,” but he “stood in front of the car and so [she] had
to 	reverse” 	for 	the 	distance 	of 	“[p]robably 	four 	or 	five
townhouses” “to go out of the neighborhood” a different way.
The children were in the car the entire time, but Amelia was “not
sure” if the children “would . . . have been able to see what [was]
going on outside the windows of the car” because “it was dark
and they were in the back” seat.
¶6 	Amelia then “headed straight to [her] house in South
Jordan.” Verive “called [her] a minute later,” and Amelia “didn’t
pick up,” but he called again “right away and [she] picked up
then.” Amelia remained on the phone with Verive for the entire
drive home, which “usually takes 15 minutes,” and for about
another five minutes after that.

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¶7 	A few minutes after the phone call ended, Amelia “was in
[her] bedroom upstairs and [she] heard the garage door.” She
looked out the window and saw that “it was [her] parents’ car
getting into [the] garage.” Then, about three minutes after that,
Verive “came into [Amelia’s] bedroom,” apparently having come
“into the house through [the] garage door.” Amelia “asked him to
come downstairs,” and he agreed.
¶8 	While downstairs, Verive attempted to continue “the same
conversation” about how, in his view, the couple “didn’t try to
save the marriage and [they] should have.” Amelia “asked him to
leave . . . because [she] was kind of drained,” and “he told [her]
he would leave if [she] promised . . . to get on a phone call with
him while he [drove] back and [she] told him [she] would.” But
he didn’t leave. Amelia “then told him [she’d] call 911” if he
continued to refuse to leave. When he still did not leave, Amelia
called 911. It was only after she began to explain the situation to
the 911 operator that Verive left. Then, when Amelia had finished
her call with the 911 operator, Verive called her again, and they
“were on the phone for [another] 15 minutes.”
¶9 	In response to Amelia’s 911 call, police officers arrived at
Verive’s residence in Bluffdale. Several officers, all in uniform,
went “to the front entrance of the residence and knocked both on
the door and on a large window that opens to the front living
room of the residence.” One of the officers (Officer) was “able to
see into the window of the home” and observed Verive “standing
in the living room area.” Verive saw Officer and “made eye
contact.” Officer “motioned to [Verive to] open the door,” but
Verive refused to do so; instead, he “opened . . . an interior door”
and “went through [it] and shut the door behind himself.”
The Trial
¶10 	Later, Bluffdale City (the City) charged Verive with four
class B misdemeanors: two counts of unlawful detention and two

Bluffdale City v. Verive
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counts of domestic violence in the presence of a child. One
unlawful detention count concerned the incident in which Verive
blocked Amelia from exiting the door to the garage in Verive’s
Bluffdale residence, and the other concerned the incident, a few
minutes later, in which Verive blocked Amelia from driving down
the street. To obtain convictions for unlawful detention, the City
needed 	to 	prove 	that 	Verive 	“intentionally 	or 	knowingly”
“detain[ed] or restrain[ed]” Amelia against her will. See Utah
Code § 76-5-304(2)(a). The two counts of domestic violence in the
presence of a child heavily depended on the unlawful detention
counts. For those counts, the City needed to prove that Verive had
“commit[ed] an act of domestic violence in the presence of a
child.” Id. § 76-5-114(2)(c) (2024). At the time of the events in
question, 	“domestic 	violence” 	was 	statutorily 	defined 	as
including unlawful detention. See id. § 77-36-1(4)(b)(xiv) (2024).
The case proceeded to a bench trial.
¶11 	At trial, the City presented testimony from Amelia and
Officer, who both testified consistently with the events recounted
above. During Amelia’s testimony about the discussion she had
with 	Verive 	in 	the 	South 	Jordan 	house, 	Verive’s 	attorney
(Counsel) objected on relevance grounds, arguing that the South
Jordan events occurred “in a different city.” The City responded,
arguing that evidence of Verive’s behavior in South Jordan was
“intrinsic 	evidence” 	about 	events 	that 	were 	“inextricably
intertwined with” the events underlying the charged crimes.
After a brief back-and-forth between Counsel and the City, the
court agreed with the City and overruled the objection.
¶12 	Later, during Officer’s testimony, the City asked him to
describe Verive’s “response when the police knocked on his
door.” Counsel lodged an objection at that point, asserting that
Verive’s response to the officers’ visit was not “relevant to the
elements of the charges” pending against Verive, and arguing that
the City’s “line of questioning” was “simply directed towards . . .
[Verive’s] credibility.” In response, the City offered a reason why

Bluffdale City v. Verive
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Verive’s response to the police visit was relevant: that it went to
Verive’s 	“consciousness 	of 	guilt.” 	And 	the 	City 	added 	an
observation regarding the testimony’s admissibility, stating that
Verive’s reaction was “a non-custodial pre-Miranda silence so it
[could] constitutionally be admitted to show consciousness of
guilt when he evaded speaking with police officers.” Counsel did
not respond to this observation, and the court then stated as
follows: “Okay. Overruled.”
¶13 	After the City rested its case, Verive testified in his defense.
His testimony contradicted Amelia’s in various ways. He testified
that while he and Amelia were talking in the Bluffdale residence,
he “let her know” that he was going to shut the door because it
was cold, and “she didn’t disagree with [him] shutting the door.”
He also stated that he didn’t “remember blocking the door in any
way.” And regarding the incident involving the car, he denied
stepping “[d]irectly in front” of the car, and he offered his view
that Amelia could have simply driven around him.
¶14 	During 	the 	City’s 	closing 	argument, 	the 	prosecutor
claimed that there was “a conflict in the evidence,” and she
argued that Amelia’s version of events had “far more credibility”
than Verive’s. And later, the prosecutor argued that Verive’s
conduct at the South Jordan house was relevant to Verive’s “state
of mind” because there “[h]e acknowledge[d] . . . that this was a
conversation he wanted, not her.”
¶15 	Counsel then argued that the City had not “met the
elements of an unlawful detention,” because of the witnesses’
conflicting accounts and because Amelia “had [an] opportunity to
leave and she took that opportunity” in both instances.
¶16 	In the City’s rebuttal argument, the prosecutor referenced
the fact that Verive had refused to speak with officers who visited
his residence. In that regard, she stated that “it’s exceedingly rare
for a prosecutor to be able to comment on a defendant’s silence,”

Bluffdale City v. Verive
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but 	she 	offered 	her 	view 	that 	she 	was 	“able 	to 	do 	that
constitutionally here,” and she urged the court to “weigh that
heavily” 	in 	assessing 	Verive’s 	“consciousness 	of 	guilt.” 	In
particular, she argued that in “considering credibility,” the court
should take into account that Verive was “a person who went out
of his way to avoid speaking with law enforcement on that
occasion because he knew what he had been up to that day and
he knew the likelihood that it was not going to go well for him.”
¶17 	After the closing arguments, the court called for a recess so
that it could have “a few moments to deliberate.” Later, the court
found Verive “guilty as charged.” It reasoned that Amelia’s
version of the “story ma[de] the most sense of the totality of the
evidence,” and it explained its reasoning as follows:
[Amelia] wanted to go out the kitchen door of the
garage [and] end the conversation, [and Verive]
blocked her or imposed a condition she didn’t want.
That’s an unlawful detention because he interfered
with her freedom of movement.
She then went out the front door, got in the garage,
started 	to 	leave, 	he 	wanted 	to 	continue 	the
conversation and she . . . turned out to drive straight
down the street. He stood in front of her, wouldn’t
let her, wanted to continue the conversation. She
had to back up and away, again, interfering with her
freedom of movement.
With the children present, the definition of “in the
presence of a child” includes “whereas a child may
see or hear an act” and, again, that they were
cohabitants. Undisputedly then I believe all the
elements are met. And then it also sheds further
light on his mental state that he followed her all the

Bluffdale City v. Verive
20250757-CA 	8 	2026 UT App 101
way to her parents’ house in South Jordan and then
refused to speak with police when they came.
¶18 	The court then sentenced Verive to 180 days in jail on each
charge, with the sentences to run concurrently, but it suspended
the jail sentences and placed Verive on “good-behavior” court
probation, with conditions, for one year.
ISSUES AND STANDARDS OF REVIEW
¶19 	Verive now appeals his convictions, and he asks us to
consider three issues. First, he argues that the evidence was
insufficient to support the convictions. “In the context of a bench
trial, when a defendant contends the evidence was insufficient to
support a conviction, we review the court’s findings for clear
error.” Bountiful City v. Sisch, 2023 UT App 141, ¶ 10, 540 P.3d 1164
(cleaned up). “And in such situations, we must sustain the trial
court’s judgment unless it is against the clear weight of the
evidence, or if we otherwise reach a definite and firm conviction
that a mistake has been made.” Id. (cleaned up).
¶20 	Second, Verive claims that the trial court erred in admitting
evidence of uncharged acts, specifically including evidence of his
conduct in South Jordan later in the evening. “Trial courts have
broad discretion to admit or exclude evidence, and we will
disturb an evidentiary ruling only for an abuse of discretion.”
State v. Tuinman, 2023 UT App 83, ¶ 51, 535 P.3d 362 (cleaned up).
¶21 	Finally, Verive takes issue with the prosecutor’s argument
that his pre-arrest silence—when officers knocked on his door—
could be used against him as evidence of consciousness of guilt.
In response, the City first asserts that Verive failed to properly
preserve 	for 	appellate 	review 	any 	challenge 	to 	the 	court’s
consideration of this evidence for this purpose. As discussed
below, we agree with this assertion. Accordingly, we review
Verive’s challenges associated with this issue only for plain error

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and ineffective assistance of counsel, both of which are arguments
made for the first time on appeal and thus are considered here in
the first instance as a matter of law. See State v. Thomas, 2025 UT
App 145, ¶ 15, 579 P.3d 416 (“Claims for plain error and ineffective
assistance 	of 	counsel 	present 	questions 	of 	law, 	which 	we
determine in the first instance as a matter of law.”).
ANALYSIS
I. Sufficiency of the Evidence
¶22 	Verive first asserts that the City failed to present sufficient
evidence to support a conviction on the unlawful detention
counts, a circumstance that, if true, would mean that the City had
also failed to present sufficient evidence on the domestic violence
counts. The relevant statute states, “An actor commits unlawful
detention if the actor intentionally or knowingly, without authority
of law, and against the will of an individual, detains or restrains the
individual.” Utah Code § 76-5-304(2)(a) (emphasis added).
¶23 	Verive makes two arguments in this regard. First, he claims
that 	the 	City 	did 	not 	present 	sufficient 	evidence 	that 	he
“detain[ed] or restrain[ed]” Amelia, as required by the unlawful
detention statute. See id. And second, he challenges the City’s
mental state evidence, arguing that the City did not present
sufficient 	evidence 	that 	he 	“intentionally 	or 	knowingly”
committed 	unlawful 	detention. 	See 	id. 	We 	address 	Verive’s
arguments, in turn, and reject them both.
A. 	Detain or Restrain
¶24 	In asserting that he did not detain or restrain Amelia,
Verive makes two claims, both of which are factually correct but
legally infirm. First, he argues that he could not have detained or
restrained Amelia because, in both instances, he only stood in her
way momentarily. Second, he argues that he could not have

Bluffdale City v. Verive
20250757-CA 	10 	2026 UT App 101
detained or restrained Amelia because, in both instances, Amelia
had an alternative option to exit the relevant location.
¶25 	With regard to Verive’s first contention, it is well-settled
that the unlawful detention statute—as opposed to the more
stringent kidnapping statute—does not set a minimum time or
duration of the detention. We discussed this in State v. Wilder, a
case in which an appellant argued that there was insufficient
evidence to support a conviction for unlawful detention because
“the ten seconds during which he pulled the victim by her hair
was too brief to satisfy the statute.” 2016 UT App 210, ¶ 20, 387
P.3d 512. We rejected this argument and concluded that, on those
facts, a jury question was presented as to whether the appellant
had detained or restrained the victim. See id. ¶ 22. We compared
the text of the unlawful detention statute—which does not have a
time-related provision—with the text of the kidnapping statute—
—which does have such a provision. See id. ¶ 20. To prove
kidnapping, a prosecuting entity must prove that a defendant
detained or restrained the victim “for any substantial period of
time.” Id. ¶ 18 (quoting Utah Code § 76-5-301(2)(a)). But this
“substantial period of time” language does not appear in the
unlawful detention statute; instead, that statute requires only that
a defendant have “detain[ed] or restrain[ed] the individual.” See
id. (quoting Utah Code § 76-5-304(1) (2015) (current version at
Utah 	Code 	§ 	76-5-304(2)(a))). 	Given 	the 	textual 	differences
between 	the 	two 	statutes, 	we 	concluded 	that 	for 	unlawful
detention, 	“the 	amount 	of 	time 	the 	victim 	was 	under 	[the
d]efendant’s control is of no moment.” Id. ¶ 20; see also State v.
Finlayson, 2014 UT App 282, ¶ 38, 362 P.3d 926 (observing that the
State had no obligation “to show that [the defendant] detained
[the victim] for a substantial period of time” in order to prove that
an unlawful detention had occurred). Thus, the fact that Verive
detained 	Amelia 	only 	momentarily 	does 	not 	mean 	that
insufficient evidence existed to support a guilty verdict.

Bluffdale City v. Verive
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¶26 	As for Verive’s second argument, it is likewise well-settled
that a defendant can detain or restrain an individual by taking
actions 	that 	fall 	far 	short 	of 	“complete 	confinement 	or
imprisonment.” See Wilder, 2016 UT App 210, ¶ 21. Again, Wilder
is 	instructive. 	There, 	we 	analyzed 	dictionary 	definitions 	of
“detain” and “restrain,” and we concluded that these definitions
“imply that ‘detains or restrains’ refers to restriction of the
victim’s movement, but neither definition requires . . . complete
confinement or imprisonment.” Id. In our view, a defendant had
detained or restrained a person if the defendant had “impair[ed]”
the person’s “ability to move freely.” Id. ¶ 22. And we held that a
jury question was presented because the defendant had “pulled
the victim by her hair” for “ten seconds.” Id. ¶¶ 20, 22. Similarly,
in State v. Ellis, we held that a jury could reasonably return a guilty
verdict on unlawful detention where the defendant had “followed
[the victim] around the house throughout the day,” “prevented
her from using the telephone,” and “twice physically prevented
her from leaving the home” “through the front door.” 2014 UT
App 185, ¶¶ 3, 10, 336 P.3d 26.
¶27 	We acknowledge Verive’s point that, in both instances,
Amelia had an alternative exit route. In the first instance, the
residence had multiple exit routes and Verive, in the moment, was
blocking only one of them. And in the second instance, there were
two automobile routes away from Verive’s City, and Verive was
standing in the way of only one of them. But where a defendant
intentionally blocks an exit route that the individual wishes to use
in that moment, the defendant has detained or restrained the
individual, regardless of whether there exists a different exit route
that the individual might attempt to use in the future. In this
situation, the defendant has “impair[ed]” the individual’s “ability
to move freely.” See Wilder, 2016 UT App 210, ¶ 22; see also State v.
Sanchez, 2015 UT App 27, ¶¶ 15, 23, 344 P.3d 191 (affirming the
lower court’s use of a jury instruction defining “detain or restrain”
as to “keep from proceeding, delay, keep in custody, confine,
control, check, repress, limit, or restrict”).

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¶28 	In Wilder, we framed the relevant question like this:
“whether a reasonable jury could have concluded that [the
d]efendant intentionally acted, however briefly, to impair the victim’s
ability to move freely.” 2016 UT App 210, ¶ 22 (emphasis added).
That same question is the one relevant here, and on this record,
that question must be answered in the affirmative. In the first
incident, Amelia tried to leave Verive’s residence through the
door to the garage, but he “stood in the way of the door” and
prevented her from doing so. By taking this action, Verive
impaired Amelia’s ability to freely leave through her desired exit
route and—at least briefly—delayed and limited her ability to
leave the residence altogether. Likewise, in the second incident,
Verive “stood in front of the car,” thus preventing Amelia from
leaving the premises in the way she intended and forcing her “to
reverse” for the distance of “[p]robably four or five townhouses”
“to go out of the neighborhood” a different way. As to both
instances, Verive took actions that a reasonable factfinder could
determine constituted unlawful detention.
B. 	Mental State
¶29 	Next, Verive argues that the evidence was insufficient to
show that he “acted knowingly or intentionally” in detaining or
restraining Amelia. We are again unpersuaded.
¶30 	We acknowledge that Verive, when he took the stand in his
own defense, testified that he had “let [Amelia] know” that he was
going to shut the door to the garage because it was cold, and that
“she didn’t disagree with [him] shutting the door so [he] shut it.”
He also stated that he didn’t “remember blocking the door in any
way.” And regarding the incident involving the car, he denied
stepping “[d]irectly in front” of the car and offered his view that
Amelia could have simply driven around him.
¶31 	But Amelia offered a much different account, thus creating
a question for the factfinder as to what Verive’s actual intentions

Bluffdale City v. Verive
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were. Regarding the first incident, she testified that she told
Verive that she “wanted to leave” to “get to” the kids in the car,
and that she “tried to leave through the door that led to the
garage,” but that Verive “stood in the way of the door” and
prevented her from leaving. From this testimony, a factfinder
could reasonably infer that Verive clearly knew that Amelia
wanted to leave through the garage door and that he was
intentionally or knowingly preventing her from doing so. And
regarding the second incident, Amelia testified that as she was
leaving the residence in her car, Verive ran to the car and stood in
front of it. It was fairly obvious, by that point, that Amelia was
attempting to leave, and a factfinder could reasonably infer, from
these facts, that Verive was intentionally or knowingly attempting
to prevent her from doing so. Moreover, Amelia’s account—that
Verive was intentionally or knowingly attempting to prevent her
from leaving—was corroborated by other evidence. For instance,
the fact that Verive then drove to South Jordan in an effort to
continue 	the 	conversation 	supports 	the 	notion 	that 	he 	had
attempted to prevent her from leaving his Bluffdale residence.
¶32 	For these reasons, sufficient evidence existed to support
the factfinder’s determination that Verive committed unlawful
detention. Accordingly, we reject Verive’s contention that his
conviction was against the clear weight of the evidence.
II. Admissibility of the South Jordan Evidence
¶33 	Next, Verive argues that the trial court “erred when it
admitted and considered evidence that [Verive] had traveled to
South 	Jordan 	following 	the 	alleged 	unlawful 	detention 	in
Bluffdale.” 	Specifically, 	Verive 	argues 	that 	admitting 	this
evidence violated rule 404(b) of the Utah Rules of Evidence
because the evidence “was not inextricably intertwined with the
charged 	offenses.” 	The 	City 	responds 	by 	arguing 	that 	the
evidence 	was 	admissible 	intrinsic 	evidence 	because 	it 	was

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“intertwined and provided important narrative value.”3 We agree
with the City.
¶34 	Rule 404(b) prohibits admission of “[e]vidence of a crime,
wrong, or other act . . . to prove a person’s character in order to
show that on a particular occasion the person acted in conformity
with the character.” Utah R. Evid. 404(b)(1). But this rule “does
not apply to evidence of the crime charged, because such evidence
does not implicate a person’s purported propensity to act in
conformance with the character exhibited by the evidence.” State
v. Blackwing, 2025 UT 60, ¶ 29, 582 P.3d 829. Accordingly, this rule
operates to exclude only “evidence that is extrinsic to the crime
charged.” Id. ¶ 24 (cleaned up). Evidence that is intrinsic—that is,
“when there is a direct relationship between the act and the
charged crime”—is “outside the scope of rule 404(b).” Id. ¶ 31.
¶35 	Here, evidence of Verive arriving uninvited to Amelia’s
upstairs bedroom at her house in South Jordan, just minutes after
the 	couple’s 	argument 	at 	Verive’s 	Bluffdale 	residence, 	is
intrinsically connected to the charged crimes. Verive’s journey to
South Jordan—while on the phone with Amelia—occurred right
after the Bluffdale events that formed the basis for the charges. In
some sense, the phone call and trip to South Jordan were just a
continuation of the events that had occurred in Bluffdale. As such,
the South Jordan events are probative of Verive’s state of mind
during, and in the minutes following, the charged acts and
therefore have a clear and direct relationship to the charged acts.
The fact that Verive, in the immediate wake of the charged acts,
followed Amelia to South Jordan and entered her house uninvited
3. The City also argues that Verive failed to properly preserve this
argument for appellate review. But where “the merits of a claim
can easily be resolved in favor of the party asserting that the claim
was 	not 	preserved, 	we 	readily 	may 	opt 	to 	do 	so 	without
addressing preservation.” State v. Kitches, 2021 UT App 24, ¶ 28,
484 P.3d 415 (cleaned up). We opt to do so here.

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makes it at least somewhat more likely that he didn’t want her to
leave his Bluffdale residence in the first place and that he might
have wanted to try to stop her from leaving there.
¶36 	Accordingly, 	evidence 	of 	the 	South 	Jordan 	events 	is
intrinsic to the charged crimes and thus outside the scope of rule
404(b). The trial court therefore did not exceed its discretion in
allowing admission of that evidence during Verive’s trial.
III. Evidence of Pre-Arrest Silence
¶37 	Finally, 	Verive 	argues 	that 	his 	Fourth 	and 	Fifth
Amendment rights were violated when the court “admitted and
relied on evidence that [Verive] had declined to speak to officers
who arrived at his home.” The City contests this argument on its
merits, but it first raises a threshold issue, asserting that Verive
failed to preserve this challenge for appellate review. We address
the City’s threshold preservation contention first, before then
turning to the merits of Verive’s argument.
A. 	Preservation
¶38 	The preservation question here turns on whether, to what
extent, and on what specific basis Verive objected to the City’s
efforts to admit evidence that Verive had declined to speak to
police officers. Verive points out that Counsel did object to the
City’s effort to introduce this evidence. In response, the City
points out that Counsel’s objection was limited and consisted only
of an objection on relevance grounds. As the City sees it, Counsel
never objected on constitutional grounds and never opposed the
City’s contention that, if relevant, admission of the evidence
would not offend the constitution. From this, the City infers that
the trial court had no idea that there was any dispute about the
constitutional admissibility of the evidence and had no idea that
it needed to resolve a contested issue on that point.

Bluffdale City v. Verive
20250757-CA 	16 	2026 UT App 101
¶39 	Neither party disputes the basic principles of preservation.
“Appellate courts generally will not consider an issue unless it has
been preserved for appeal.” State v. Skinner, 2020 UT App 3, ¶ 23,
457 P.3d 421 (cleaned up). “To preserve an issue for appeal, a
party must present it to the trial court in such a way that the trial
court has an opportunity to rule on that issue.” Id. (cleaned up).
But the parties disagree about whether, on these facts, the trial
court had a meaningful opportunity to rule on the constitutional
admissibility of the evidence.
¶40 	On this point, Verive and the City rely on different strains
of our preservation caselaw to support their positions. For his
part, Verive directs our attention to caselaw holding that where a
trial court actually rules on an issue, the propriety of the court’s
ruling on that issue is preserved for appellate review. See, e.g., Fort
Pierce Indus. Park Phases II, III & IV Owners Ass’n v. Shakespeare,
2016 UT 28, ¶ 13, 379 P.3d 1218 (noting that where a “district court
not only had an opportunity to rule on the issue . . . but in fact did
rule on it,” the issue is preserved for appellate review). And
Verive asserts that issues can be preserved, even where the
appellant failed to raise the issue, if the other side—here the
City—raised the issue and provided the necessary framework for
a decision. See, e.g., State v. Ramos, 2025 UT App 70, ¶ 11 n.1, 571
P.3d 807 (holding that an issue was preserved where “the State
itself [had] recited the three-part test” applicable to the issue and
the trial court had ruled on the issue using that framework), cert.
denied, 574 P.3d 525 (Utah 2025).
¶41 	The City, on the other hand, directs our attention to cases
holding 	that 	objecting 	parties 	must 	identify 	the 	particular
grounds for their objection and that parties who make “an
objection at trial based on one ground” have not “preserve[d] for
appeal any alternative grounds for objection.” See State v. Low,
2008 UT 58, ¶ 17, 192 P.3d 867. In Low, for instance, the defendant
objected at trial to a jury instruction on one specific ground, but
on appeal he argued that the instruction was infirm for a different

Bluffdale City v. Verive
20250757-CA 	17 	2026 UT App 101
reason. See id. ¶ 18 (stating that the defendant “never objected to
the [jury] instructions for the reason that he now urges as grounds
for reversal” on appeal). In that situation, our supreme court
considered the issue unpreserved. See id. And in State v. Centeno,
the court reiterated these principles, holding that an “objection on
grounds of undue emphasis did not raise before the [trial] court
the issues that [the appellant] . . . assert[ed] on appeal: that his
rights to be present and to confront adverse witnesses were
violated, and that the video unfairly depicted him in handcuffs.”
See 2023 UT 22, ¶ 55, 537 P.3d 232.
¶42 	In this same vein, our supreme court has made clear that a
party’s failure to “offer a proper objection” to the admission of
evidence at trial means that the party’s attempt to appeal the
admission of that evidence on a basis not articulated to the trial
court will be rejected as unpreserved. See State v. McNeil, 2016 UT
3, ¶ 21, 365 P.3d 699. In McNeil, the State wanted to read to the
jury, at trial, the preliminary hearing testimony of a police
detective 	regarding 	certain 	telephone 	calls 	involving 	the
defendant. See id. ¶¶ 7–8. The defense objected on various
grounds, including “hearsay.” See id. ¶¶ 9–10. The trial court
interjected, 	offering 	its 	view 	that 	the 	detective’s 	testimony
couldn’t constitute hearsay because it had been offered in court,
during a preliminary hearing. See id. ¶ 10. In response, the defense
attorney conceded that the testimony was “not hearsay.” Id. The
court 	then 	admitted 	the 	evidence, 	stating 	that 	it 	was 	“not
hearsay.” Id. On appeal, the defendant attempted to challenge, on
hearsay 	grounds, 	the 	court’s 	admission 	of 	the 	detective’s
testimony, and the State asserted that defense counsel had invited
any error at trial. See id. ¶ 16. Our supreme court rejected this
argument, holding that the error had not been invited, but it
clarified that “an error of this sort by the trial court is not invited
but 	merely 	unpreserved” 	because 	the 	defense 	attorney had
acquiesced to the court’s statement that the testimony was “not
hearsay” and had therefore not “offer[ed] a proper objection.” Id.
¶ 21. The court thus proceeded to review the issue on appeal, but

Bluffdale City v. Verive
20250757-CA 	18 	2026 UT App 101
only for plain error and ineffective assistance of counsel. See id.
¶ 24; see also State v. Popp, 2019 UT App 173, ¶ 44, 453 P.3d 657
(holding that an argument was unpreserved for appeal when
defense counsel was “directly queried about whether he had any
‘comment’ 	on 	the 	State’s 	request” 	that 	certain 	evidence 	be
admitted and “responded in the negative”).
¶43 	In this situation, we think the City has the better of the
preservation argument. To be sure, the trial court admitted the
evidence on precisely the basis suggested by the City and ended
up, at least to some extent, considering it in connection with its
decision to convict Verive. But while Counsel lodged a relevance
objection, Counsel did not express audible opposition to the City’s
contention that, if relevant, the evidence of Verive’s silence could
constitutionally be admitted and considered for consciousness of
guilt. The City’s position regarding constitutional admissibility
was thus unopposed and unchallenged, and on this record we do
not think the trial court had any idea that it was being asked to
resolve 	a 	constitutional 	question. 	Indeed, 	the 	particular
constitutional question Verive now claims was preserved here is
a complex one, involving the potential reach of the plurality
opinion in Salinas v. Texas, 570 U.S. 178 (2013), and specifically
whether Salinas abrogated earlier precedent from this court,
including State v. Gallup, 2011 UT App 422, 267 P.3d 289, and State
v. Palmer, 860 P.2d 339 (Utah Ct. App. 1993). See State v. Anderson,
2020 UT App 135, ¶ 41, 475 P.3d 967 (noting that “neither this
court nor the Utah Supreme Court has squarely addressed the
impact of Salinas on our precedent,” and concluding that an
attorney “could reasonably reach [the] conclusion” that Salinas
had “overruled Palmer and Gallup”). In this case, the trial court
offered only a terse two-word response—“Okay. Overruled.”—to
the attorneys’ back-and-forth on the topic, and the court did not
make any comment specifically about the constitutional issues. As
far as we can tell from our examination of the record, the court
admitted the evidence not because it was making a ruling on the
constitutional issue but, instead, because it overruled Counsel’s

Bluffdale City v. Verive
20250757-CA 	19 	2026 UT App 101
relevance objection and because the City’s stated position on
constitutional admissibility appeared to be unopposed.
¶44 	Verive acknowledges that no stated opposition to the
City’s position appears in the record, but he nevertheless resists
the 	conclusion 	that 	the 	constitutional 	challenge 	remains
unpreserved, asserting that the trial court “overruled [Counsel’s]
objection without affording him an opportunity to respond.”
Presumably, this assertion rests on the premise that the court
made a quick ruling on the matter without pausing to allow
Counsel an opportunity to offer a contrary view on constitutional
admissibility. For two reasons, we reject Verive’s assertion.
¶45 	First, even assuming the accuracy of Verive’s underlying
premise—that the court made a quick ruling without pausing—
Counsel still had every opportunity to make a record of any
objections he might have had to the City’s position. Here, there is
no indication in the record that the court prevented Counsel from
making any argument or that it refused to afford Counsel the
benefit of the record to make his position clear. Even when a court
makes a quick ruling, attorneys are expected to lodge objections
and, if necessary, ask for the benefit of the record to set forth any
opposition they might have to a position the other side takes.
Attorneys who fail to ask for the benefit of the record in a situation
like this have not done enough to preserve their position.
¶46 	Second, and relatedly, it is by no means clear from the
record that the trial court failed to pause to allow Counsel time to
register any opposition to the City’s position. The cold record
does not reveal how much time elapsed between (a) the end of the
City’s recitation of its position, (b) the court’s first word (“Okay”),
and (c) the court’s second word (“Overruled”). Verive appears to
be assuming that this all happened extremely quickly, with mere
milliseconds between (a), (b), and (c). But there could well have
been 	pregnant 	pauses, 	accompanied 	by 	non-verbal
communication (e.g., eye contact) between the court and Counsel,

Bluffdale City v. Verive
20250757-CA 	20 	2026 UT App 101
during which time it would have been clear that the court was
affording Counsel an opportunity to chime in. The record is
simply unclear on the point. Perhaps an audio recording of the
hearing would have shed more light on the matter. Alternatively,
an affidavit from Counsel might likewise have been informative.
But these items are not contained in the record submitted to us.
“When an appellant fails to provide an adequate record on
appeal, we presume the regularity of the proceedings below,” and
“when crucial matters are not included in the record, the missing
portions are presumed to support the action of the trial court.”
State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278 (cleaned up).
¶47 	For all of these reasons, we conclude that Verive failed to
preserve 	for 	appellate 	review 	any 	argument 	related 	to 	the
constitutional admissibility of evidence that he reacted with
silence when police officers arrived at his residence. We therefore
proceed to review Verive’s appellate arguments under exceptions
to our preservation rules, namely, ineffective assistance of counsel
and plain error.
B. 	Ineffective Assistance of Counsel
¶48 	To succeed on a claim of ineffective assistance, Verive must
make a two-part showing: (1) that Counsel’s performance was
deficient 	in 	that 	it 	“fell 	below 	an 	objective 	standard 	of
reasonableness” 	and 	(2) 	that 	this 	deficient 	performance
“prejudiced 	the 	defense” 	such 	that 	“there 	is 	a 	reasonable
probability that, but for [C]ounsel’s unprofessional errors, the
result of the proceeding would have been different.” See Strickland
v. Washington, 466 U.S. 668, 687–88, 694 (1984); accord State v. Scott,
2020 UT 13, ¶ 28, 462 P.3d 350; State v. Ray, 2020 UT 12, ¶ 24, 469
P.3d 871. Failure to prove either component is fatal to the claim;
“[u]nless a defendant makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the adversary
process that renders the result unreliable.” Strickland, 466 U.S. at
687. Thus, “if either is lacking, the claim fails and this court need

Bluffdale City v. Verive
20250757-CA 	21 	2026 UT App 101
not address the other.” State v. Kufrin, 2024 UT App 86, ¶ 55, 551
P.3d 416 (cleaned up).
¶49 	In this case, we elect to decide the matter on the prejudice
prong. “Prejudice exists when there is a reasonable probability
that the case would have had a different outcome had trial counsel
not performed deficiently.” State v. Whytock, 2020 UT App 107,
¶ 28, 469 P.3d 1150. “A reasonable probability is a probability
sufficient 	to 	undermine 	confidence 	in 	the 	outcome” 	of 	the
proceeding. Strickland, 466 U.S. at 694. In assessing prejudice, we
“consider the totality of the evidence before the judge or jury and
then ask if the defendant has met the burden of showing that the
decision reached would reasonably likely have been different
absent the errors.” State v. Garcia, 2017 UT 53, ¶ 28, 424 P.3d 171
(cleaned up).
¶50 	Verive argues that Counsel was ineffective for failing to
articulate any opposition to the City’s position that Verive’s
silence 	was 	constitutionally 	admissible 	as 	evidence 	of
consciousness of guilt. And as to prejudice, Verive notes that the
City emphasized this point in its closing argument and that the
court, in its oral ruling, mentioned Verive’s silence as one piece of
evidence that contributed to the court’s ultimate decision. Verive
is correct that these facts are relevant to a prejudice analysis and
that they can weigh in favor of a determination that prejudice
exists. See State v. Gourdin, 2024 UT App 74, ¶ 91, 549 P.3d 685
(“When the State emphasizes evidence to this extent in closing
argument, that is a very good clue that the evidence mattered.”),
cert. granted, 564 P.3d 958 (Utah 2025). But these facts do not
compel the conclusion that prejudice exists, and in this case we
conclude that, despite the City’s emphasis and the trial court’s
mention of Verive’s silence, Verive has not demonstrated a
reasonable 	likelihood 	of 	a 	different 	result 	absent 	Counsel’s
putative error.

Bluffdale City v. Verive
20250757-CA 	22 	2026 UT App 101
¶51 	To properly assess whether prejudice exists, we must
undertake a counterfactual inquiry, one in which we envision a
hypothetical world in which Counsel did not make the putative
error. See State v. Ellis, 2018 UT 2, ¶ 42, 417 P.3d 86 (“Prejudice
analysis is counterfactual. To decide whether a trial affected by
error is reasonably likely to have turned out differently we have
to consider a hypothetical—an alternative universe in which the
trial went off without the error.”); see also State v. Soto, 2022 UT
App 107, ¶ 25, 518 P.3d 157 (“Under a counterfactual analysis, we
consider whether, in the absence of the improperly admitted
evidence, the likelihood of a different outcome is sufficiently high
to undermine our confidence in the verdict.” (cleaned up)). Here,
we imagine a trial in which Counsel lodged an articulate objection
to the City’s position regarding constitutional admissibility, and
we even assume—for purposes of our hypothetical analysis
only—that the trial court sustained that objection and excluded
from 	its 	analysis 	any 	consideration 	of 	Verive’s 	silence 	as
demonstrative of consciousness of guilt. But even indulging these
assumptions, we perceive no reasonable likelihood of a different
result for Verive in an alternative trial.
¶52 	When we review the trial transcript—and especially the
transcript of the court’s ruling—in context, it becomes clear that
the evidence of Verive’s silence formed but a very minor part of
the trial and of the court’s analysis. To be sure, part of the court’s
analysis involved deciding whose account of events to believe—
Verive’s or Amelia’s—and deciding what Verive’s mental state
was when he committed the acts in question. And as noted, the
court did mention, at least in passing, Verive’s silence. But the
court’s ruling comprises three paragraphs in the transcript, and
only in the final sentence does the court make any mention of
Verive’s refusal to speak with police. The court first recited the
facts, and it found that Verive had “interfered with” Amelia’s
“freedom of movement” and thus had detained or restrained her.
It then determined that “all [of] the elements” of the domestic
violence offenses were also met.

Bluffdale City v. Verive
20250757-CA 	23 	2026 UT App 101
¶53 	It was only after conclusively determining, as a matter of
law and fact, that the elements of the charged crimes were met
that the court—in the final sentence of its oral ruling—made this
comment: “And then it also sheds further light on [Verive’s]
mental state that he followed [Amelia] all the way to her parents’
house in South Jordan and then refused to speak with police when
they came.” As an initial matter, this sentence—in its entirety—
feels like an aside; it is by no means clear that any of it was
dispositive to the analysis that had already essentially been
completed. After all, the court spoke in terms of these facts simply
shedding further light on a matter it appeared to have already
conclusively decided.
¶54 	But be that as it may, it is only the final ten words of the
sentence that have anything to do with the issue at hand; for
purposes of our prejudice inquiry, Verive’s trip to South Jordan
remains relevant and something that the court was allowed to
properly consider. For purposes of our analysis, then, we must
assess whether there exists a reasonable likelihood of an acquittal
if the court could consider (a) the facts of the two incidents at the
Bluffdale residence and (b) the fact that Verive followed Amelia
to South Jordan and entered her parents’ house to continue the
conversation but not (c) the fact that Verive refused to speak with
police when they visited his residence later that night. And on that
score, we simply see no possibility of a different outcome given
those assumptions. As we read the court’s oral ruling, its decision
did not turn on whether Verive refused to speak with the police.
If that fact had been removed from consideration, in our view the
court would have reached the exact same result.
¶55 	Accordingly, Verive has not demonstrated that any error
Counsel may have committed by not lodging an objection to the
City’s position on the admissibility of his silence made any
difference to the outcome of his trial. On that basis, we reject
Verive’s ineffective assistance claim.

Bluffdale City v. Verive
20250757-CA 	24 	2026 UT App 101
C. 	Plain Error
¶56 	Next, Verive argues that the district court plainly erred
when it “admitted and used the pre-arrest silence.” To establish
plain error, Verive must show “that (i) an error exists; (ii) the error
should have been obvious to the trial court; and (iii) the error is
harmful.” State v. Popp, 2019 UT App 173, ¶ 35, 453 P.3d 657. The
third part of this test is analyzed in the same way as the prejudice
prong from the ineffective assistance of counsel test. See id. ¶ 40
(“The prejudice test is the same whether under the claim of
ineffective assistance or plain error.” (cleaned up)); see also State v.
Bair, 2012 UT App 106, ¶ 35, 275 P.3d 1050 (“The ‘harm’ factor in
the plain error analysis is equivalent to the prejudice test applied
in assessing claims of ineffective assistance of counsel.” (cleaned
up)). For the reasons explained in the previous section, Verive has
not demonstrated that he was prejudiced by the admission of
evidence regarding his silence. Accordingly, we reject Verive’s
claim of plain error for the same reason that we reject his claim of
ineffective assistance of counsel.
CONCLUSION
¶57 	The evidence presented at trial was sufficient to support
the convictions. The trial court did not exceed its discretion in
admitting and considering evidence of Verive’s journey to South
Jordan, because that evidence was intrinsic to the charged crimes.
And Verive’s challenge to the court’s consideration of evidence of
his refusal to speak with police is unpreserved, and Verive has not
shown ineffective assistance of counsel or plain error. For these
reasons, we reject Verive’s arguments and affirm his convictions.