State v. White

2016 UT App 241
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
C OY BRANDON WHITE,
Appellant.
Opinion
No. 20141003-CA
Filed December 15, 2016
Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 121908920
Nicole G. Farrell, Alan S. Mouritsen, and Adam E.
Weinacker, Attorneys for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES GREGORY K. O RME and J. F REDERIC VOROS JR . concurred.
MORTENSEN, Judge:
¶1 	Defendant Coy Brandon White was found uninvited and
without pants in a darkened bathroom by Victim, who engaged
in 	combat 	with 	his 	newfound 	adversary. 	A 	jury 	convicted
Defendant of aggravated burglary and aggravated assault, and he
now appeals. We affirm.
BACKGROUND
¶2 	On the evening of May 11, 2012, Victim arrived home and
greeted his son (Son) before making his way to the master
bathroom 	to 	wash 	his 	hands. 	As 	Victim 	approached 	the
bathroom, he saw the silhouette of a man in his underwear. Victim

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20141003-CA 	2 	2016 UT App 241
asked the man who he was and what he was doing, to which the
man replied, “I’m here for your daughter.” Victim’s daughter was
not home at the time. Using the bedroom door, which is adjacent
to the bathroom, Victim attempted to trap the man in the
bathroom. The man “stuck the end of a broom through an
opening in the doorway” and hit Victim. Victim then opened the
bedroom door, and the two men engaged in a physical struggle.
At some point Son came in, and Victim instructed him to go get a
knife. Son returned with two, giving one to Victim. Victim did not
immediately use the knife against the man because he felt
“compassion not to kill him.” The man momentarily retreated to
retrieve a clothes iron from the hall, which he used to strike
Victim. When Victim countered with the knife, the man “started
backing up defending himself with the iron,” then dropped the
iron and fled the apartment.
¶3 	Police found blood on the iron and sent the blood to the
Utah State Crime Lab for testing. The DNA from the blood
matched a DNA sample in Utah’s Combined DNA Index System.
The sample belonged to Defendant. Neither Victim nor Son could
identify Defendant at trial as the man in their home, and Victim
failed to select Defendant’s picture from a photo array following
the incident. No one in Victim’s family knew Defendant; he had
never been invited to enter their home.
¶4 	The State charged Defendant with aggravated burglary
and 	aggravated 	assault, 	first 	and 	third 	degree 	felonies
respectively. See Utah Code Ann. § 76-6-203 (LexisNexis 2012); id.
§ 76-5-103. During discovery, the State filed a motion under rule
16 of the Utah Rules of Criminal Procedure requesting a sample
of Defendant’s DNA via buccal swab—a method of collecting
DNA by swabbing the interior surface of a person’s cheek. The
motion was supported by an affidavit from the investigating
officer. 	Defendant 	objected 	to 	the 	motion. 	The 	trial 	court
overruled Defendant’s objection, and after hearing argument,
granted the State’s motion, ordering Defendant to provide the
sample. Defendant refused. The State then filed a second motion,
again under rule 16, requesting an order allowing it to use force

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20141003-CA 	3 	2016 UT App 241
to obtain Defendant’s DNA sample. Again Defendant objected,
arguing that rule 16 does not authorize the use of force in
obtaining a DNA sample, and again the trial court granted the
State’s motion. Defendant thereafter allowed investigators to take
a sample of his DNA without force, and this was the only
evidence the State presented at trial to prove Defendant’s identity
as the man in Victim’s apartment.
¶5 	Defendant’s trial strategy involved alternative defenses.
Either (1) Defendant was not the man who Victim found in his
bathroom or (2) Defendant’s actions were justified as a result of
self-defense 	or 	compulsion. 	As 	Defendant 	explains,
“Accordingly, the actions of [Victim] the night of the incident
were 	relevant 	to 	[Defendant’s] 	defense.” 	For 	this 	reason,
Defendant informed the trial court that Victim had entered a plea
in abeyance on a 2010 assault charge and stated that if Victim put
his own character at issue, Defendant would question him about
the 2010 charge.
¶6 	In the course of Victim’s testimony, he stated that he had
“felt compassion not to kill” the man in his bathroom and that he
did not “have a criminal mind.” Defense counsel, during a bench
conference, 	asserted 	that 	these 	statements 	were 	“somewhat
ambiguous, [and] may be a question of interpretation” and asked
permission to cross-examine Victim on “what it is that he meant.”
In defense counsel’s view, “depending on [Victim’s] answer,” that
could “open the door to some discussion of the” plea in abeyance.
The trial court refused the request.
¶7 	Also during his testimony, Victim twice made comments
indicating that he “felt more accused than the defendant.”1 After
the first comment, Defendant requested, and the trial court gave,
a curative instruction to the jury to disregard the comment.
Following the second comment, Defendant moved for a mistrial.
1. Only one of these comments is explicitly indicated in the trial
transcript. The parties’ briefs and the context of the second
comment indicate that Victim made an earlier comment along the
same lines, which for some reason was not recorded.

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20141003-CA 	4 	2016 UT App 241
The trial court denied the motion but indicated its willingness to
give a second curative instruction; Defendant never requested this
second instruction.
¶8 	Finally, Defendant raised the issue of Victim’s status as an
undocumented immigrant. Victim had filed I-918 petitions—used
to obtain what are commonly called U visas—for himself and his
family. Defendant presented an expert at trial who explained that
U visas confer legal status on victims of violent crimes. Defendant
used this evidence to suggest a possible motive for Victim to
fabricate the details of that night, namely, obtaining a more
favorable immigration status. Defendant also sought to question
Victim concerning his refusal to provide defense counsel with a
copy of the I-918 petitions. The trial court had reviewed the
petitions 	in 	camera 	and 	concluded 	that 	there 	was 	nothing
potentially exculpatory in them. It therefore barred that line of
questioning, explaining, “[T]hat is not coming in, that’s not
relevant for any purpose. . . . That’s his right.”
¶9 	The jury convicted Defendant of aggravated burglary and
aggravated assault. Defendant now appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 	Defendant first argues that the trial court erred in granting
the State’s rule 16 motions to obtain a sample of his DNA—
particularly the second motion, which sought to obtain the sample
by force—because the State should have been required to obtain
a warrant. Normally, “rulings on motions to compel . . . are
reviewed for an abuse of discretion.” Macris & Assocs., Inc. v.
Neways, Inc., 2006 UT App 33, ¶ 8, 131 P.3d 263; see also State v.
Tanner, 2011 UT App 39, ¶ 5, 248 P.3d 61. But because Defendant’s
argument rests on whether rule 16 is a proper mechanism for
obtaining DNA evidence by force, resolution of this issue requires
us to interpret the language of rule 16 and decide whether
Defendant was afforded necessary constitutional protections. We
therefore review the trial court’s grant of the State’s motions for
correctness. See Ostler v. Buhler, 1999 UT 99, ¶ 5, 989 P.2d 1073

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20141003-CA 	5 	2016 UT App 241
(“The proper interpretation of a rule of procedure is a question of
law, and we review the trial court’s decision for correctness.”);
State v. Holland, 921 P.2d 430, 433 (Utah 1996) (“[T]he ultimate
question 	of 	whether 	the 	trial 	court 	strictly 	complied 	with
constitutional and procedural requirements . . . is a question of
law that is reviewed for correctness.”).
¶11 	The second and third issues on appeal concern the trial
court’s restriction of Defendant’s cross-examination of Victim,
particularly regarding Victim’s 2010 assault charge and his I-918
petitions. 	We 	generally 	review 	the 	trial 	court’s 	decisions
concerning the scope of cross-examination, including its decisions
to allow or exclude evidence, for an abuse of discretion. State v.
Gomez, 2002 UT 120, ¶ 12, 63 P.3d 72.
¶12 	Defendant also argues that the trial court should have
granted his motion for a mistrial following Victim’s statements
that he felt more accused than Defendant.
Because a district judge is in an advantaged position
to determine the impact of courtroom events on the
total proceedings, once a district court has exercised
its discretion and denied a motion for a mistrial, we
will not reverse the court’s decision unless it “is
plainly 	wrong 	in 	that 	the 	incident 	so 	likely
influenced the jury that the defendant cannot be
said to have had a fair trial.”
State v. Allen, 2005 UT 11, ¶ 39, 108 P.3d 730 (quoting State v. Wach,
2001 UT 35, ¶ 45, 24 P.3d 948).
¶13 	Notwithstanding the standards of review just outlined, we
will reverse Defendant’s convictions only if we are convinced that
the trial court’s errors made “the likelihood of a different outcome
. . . sufficiently high to undermine confidence in the verdict.” State
v. Knight, 734 P.2d 913, 920 (Utah 1987); see State v. Draper-Roberts,
2016 UT App 151, ¶ 16, 378 P.3d 1261 (dealing with harmlessness
in an abuse-of-discretion context); State v. Hawkins, 2016 UT App

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20141003-CA 	6 	2016 UT App 241
9, ¶ 33, 366 P.3d 884 (dealing with harmlessness in a correctness
context); see also Utah R. Crim. P. 30(a) (“Any error, defect,
irregularity or variance which does not affect the substantial
rights of a party shall be disregarded.”); State v. Jimenez, 2016 UT
App 138, ¶ 9, 379 P.3d 50 (explaining that even if we determine
certain evidence should have been admitted, we will reverse only
if admission of that evidence would likely have led to a different
result at trial). Thus, even if we determine or assume that the trial
court erred in one of the ways Defendant identifies, we will
reverse only if there is a reasonable likelihood that Defendant was
harmed by the error or by the cumulative effect of several errors.
When it is more expedient to do so, we focus our attention first on
what harm, if any, Defendant suffered as a result of the alleged
errors. See State v. Cox, 2012 UT App 234, ¶ 5, 286 P.3d 15
(indicating that we need not decide whether an “error was
obvious or invited, or whether counsel was deficient in failing to
object to it because we conclude that the error was harmless”
(footnote omitted)); cf. Archuleta v. Galetka, 2011 UT 73, ¶ 41, 267
P.3d 232 (explaining that under the ineffective-assistance-of-
counsel standard, where it is easier to dispose of a claim on
prejudice grounds, the court will do so without analyzing the
reasonableness of counsel’s performance).
¶14 	Finally, Defendant contends that “the errors presented on
appeal warrant reversal of [his] convictions under the cumulative
error doctrine.” “Under the cumulative error doctrine, we apply
the standard of review applicable to each underlying claim or
error” and “reverse only if the cumulative effect of multiple errors
undermines our confidence that a fair trial was had.” State v.
Davis, 2013 UT App 228, ¶ 16, 311 P.3d 538 (citations and internal
quotation marks omitted).
ANALYSIS
I. Authorization of Use of Force To Retrieve Defendant’s DNA
¶15 	Defendant 	contends 	that 	the 	State 	violated 	his
constitutional 	protection 	against 	unreasonable 	searches 	and

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20141003-CA 	7 	2016 UT App 241
seizures, see Utah Const. art. I, § 14,2 when it relied on rule 16 of
the Utah Rules of Criminal Procedure to obtain authorization for
the use of force in securing a sample of his DNA. We conclude
that the trial court appropriately granted the State’s rule 16
motion, authorizing the use of force in obtaining a sample of
Defendant’s DNA.3
¶16 	State v. Easthope, 668 P.2d 528 (Utah 1983), addressed a
nearly identical issue. There, the district court had ordered the
defendant to surrender body and pubic hair, saliva, and blood
samples under the predecessor to rule 16. Id. at 530, 531; see also
Utah Code Ann. § 77-35-16 (Allen Smith Co. 1982). The defendant
argued that “the taking of his blood sample without a search
warrant was . . . unconstitutional.” Easthope, 668 P.2d at 531–32
(footnote omitted). The Utah Supreme Court reasoned that “the
purpose of the warrant requirement . . . was not to exalt the
formality of the warrant but to assure that the decision to compel
an invasion of a person’s body in search of evidence of guilt was
made by a neutral and detached magistrate.” Id. at 532 (citation
and internal quotation marks omitted). The court then set forth
the following analysis, which applies directly to this case:
That 	concern 	was 	fully 	satisfied 	in 	the
circumstances of this case. Following defendant’s
arrest on a warrant, the State filed a motion to
compel discovery of body fluids. Defendant and his
counsel were notified, an adversary hearing was
held, and . . . the magistrate ordered the taking of a
2. Defendant does not allege a violation of the Fourth Amendment
to the United States Constitution.
3. We note that although the State ultimately did not need to resort
to the use of force, see supra ¶ 4, Defendant’s argument is that
“Rule 16 does not permit the warrantless taking of DNA by force.”
Defendant is not precluded from pursuing this argument simply
because he cooperated instead of risking injury by requiring the
State to take his DNA by force.

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20141003-CA 	8 	2016 UT App 241
blood 	sample. 	That 	course 	of 	events, 	which
provided 	the 	defendant 	greater 	procedural
protection than he has under a search warrant
(notably his participation in the hearing), satisfied
the constitutional requirements for the invasion of a
person’s body.
Id.
¶17 	Not only does this analysis from Easthope support the
conclusion that the trial court did not err in granting the State’s
motion in this case, but it also echoes the outcome of similar cases
throughout the country. See, e.g., United States v. Pipito, 861 F.2d
1006, 1009–10 (7th Cir. 1987) (comparing retrieving fingerprints to
retrieving blood samples and concluding that force may be used
to obtain such materials because “while it may not enhance the
image of justice to force a witness kicking and screaming . . . the
choice has been made by the witness, not the court” (omission in
original) 	(citation 	and 	internal 	quotation 	marks 	omitted));
Simmons v. Secretary, Dept. of Corr., No. 8:08-cv-2433-T-17EAJ, 2010
WL 1408434, at *12 (M.D. Fla. April 6, 2010) (deciding, where the
Florida Rules of Criminal Procedure authorized a court to require
the defendant to “‘permit the taking of samples of the defendant’s
blood, hair, and other materials of the defendant’s body that
involves no unreasonable intrusion,’” that “the Court had the
ability to require the Defendant to provide a saliva sample
without needing a search warrant” (quoting Fla. R. Crim. P.
3.220)); People v. Treece, 511 N.E.2d 1361, 1367 (Ill. App. Ct. 1987)
(concluding that Illinois Supreme Court Rule 413 “can be used to
obtain a blood sample from a defendant without resort to a search
warrant following indictment or information”).
¶18 	Defendant’s 	attempts 	to 	distinguish 	Easthope 	are
unavailing. He claims that “the Easthope court did not analyze the
precise language of Rule 16(h) or its interplay with the State’s
more 	recent 	constitutional 	jurisprudence 	and 	protection 	of
individual rights.” But as we explained, see supra ¶ 16, the statute
relied on in Easthope was simply an earlier version of rule 16, and

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Defendant does not attempt to explain how the existence of two
versions of the same rule, nearly identical in substance but
different in name, affects the outcome on appeal. And the mere
passage of time since it was decided, without more, does not make
Easthope any less controlling.
¶19 	As in Easthope, the trial court in this case used the then-
current discovery rules to provide Defendant more protection
than he would have received if the State had simply obtained a
warrant for a sample of his DNA. See infra ¶ 24. In this we see no
error.
¶20 	Even without reference to the Easthope analysis, application
of the relevant criminal discovery rules yields the same result.
Rule 16 of the Utah Rules of Criminal Procedure provides that,
“[s]ubject 	to 	constitutional 	limitations, 	the 	accused 	may 	be
required to . . . permit the taking of samples of blood, hair,
fingernail scrapings, and other bodily materials which can be
obtained without unreasonable intrusion.” Utah R. Crim. P.
16(h)(6). That same rule provides that if a party fails to comply,
“the court may order such party to permit the discovery or
inspection, . . . or it may enter such other order as it deems just
under the circumstances.” Id. R. 16(g). Here, the trial court
required Defendant to provide “other bodily materials” when it
ordered him to submit to a buccal swab. See id. R. 16(h)(6). Then,
when Defendant failed to submit to such procedure, the trial court
authorized the State to use force in obtaining the DNA sample.
¶21 	Other courts have consistently described buccal swabs as
minor intrusions. See, e.g., Maryland v. King, 133 S. Ct. 1958, 1980
(2013) (“minor intrusion of a brief swab of his cheeks”); Haskell v.
Harris, 	669 	F.3d 	1049, 	1050 	(9th 	Cir. 	2012) 	(“a 	de 	minimis
intrusion”), aff’d, 745 F.3d 1269 (9th Cir. 2014) (en banc); Friedman
v. Boucher, 580 F.3d 847, 863 (9th Cir. 2009) (“far less intrusive than
drawing blood and a relatively minor intrusion”). And Defendant
does not contend that the State’s buccal swab procedure resulted
in an “unreasonable intrusion.” See Utah R. Crim. P. 16(h)(6).
Instead, Defendant argues that the trial court’s order failed to
comport with “constitutional limitations” by authorizing the use

State v. White
20141003-CA 	10 	2016 UT App 241
of force. See id. He further claims that discovery rules cannot be
used to circumvent the warrant requirement for searches. In
Defendant’s view, while rule 16 can be used to “require[ the
accused] to permit the taking of . . . bodily materials that can be
obtained without unreasonable intrusion,” “the accused can
decide to comply with the order, or refuse to comply and face the
consequences.” According to Defendant, those consequences
cannot include “use of reasonable force.”4
¶22 	We cannot agree with Defendant’s interpretation of the
rule, which would effectively preclude the State from seeking
information through discovery if that information could properly
be the subject of a warrant. Instead, the rule grants the trial court
considerable discretion to make discovery orders, so long as those
4. Defendant suggests that State v. Bakalov, 1999 UT 45, 979 P.2d
799, supports this argument. Bakalov involved a rape defendant
who sought to have an expert evaluate a semen sample found on
his victim. Id. ¶ 54. The trial court “granted the request subject to
[the defendant’s] first submitting a sample of his blood to the
State.” Id. ¶ 10. Because the defendant refused to provide the
sample, the court denied his motion. Id. On appeal, our supreme
court concluded that the trial court’s imposed condition for
testing 	“comported 	with 	Utah 	Rule 	of 	Criminal 	Procedure
16(h)(6).” 	Id. 	¶ 	54. 	Specifically, 	recognizing 	the 	significant
discretion afforded trial courts “to remedy any prejudice to a
party resulting from a breach of the criminal discovery rules,” the
supreme court determined that forcing the defendant to choose
between providing a sample of his DNA or not having the semen
sample evaluated did not “violate the constitution or any other
provision of law.” Id. (citations and internal quotation marks
omitted). But this holding from Bakalov—that a particular sanction
was an 	appropriate response 	to that defendant’s refusal 	to
provide a DNA sample—cannot be interpreted to mean that no
other condition or sanction would have been appropriate. In
short, Bakalov has no application here except to underscore that a
trial court has significant discretion in fashioning an appropriate
sanction.

State v. White
20141003-CA 	11 	2016 UT App 241
orders 	comply 	with 	constitutional 	requirements. 	The
constitutional requirement applicable to searches of a defendant’s
person and seizure of his or her DNA is one of reasonableness:
“The right of the people to be secure in their persons . . . against
unreasonable searches and seizures shall not be violated . . . .”
Utah Const. art. I, § 14.
¶23 	The most common way the law ensures that a search and
seizure is reasonable is to require a warrant, which “shall [not]
issue but upon probable cause supported by oath or affirmation,
particularly describing the place to be searched, and the person or
thing to be seized.” Id. Probable cause “undoubtedly requires a
nexus between suspected criminal activity and the place to be
searched.” State v. Dable, 2003 UT App 389, ¶ 5, 81 P.3d 783
(citation and internal quotation marks omitted). Probable cause is
typically established by affidavit, as occurred here. In the present
case, the suspected criminal activity was a man’s unlawful entry
into Victim’s home and the ensuing altercation, which left blood
on the clothes iron. The place to be searched was Defendant’s
person via a buccal swab for DNA. The strong nexus between the
criminal activity and the place to be searched was the match
between the DNA in the blood found on the iron and Defendant’s
preexisting DNA sample in Utah’s Combined DNA Index System.
Probable cause existed for the retrieval of Defendant’s DNA,5 and
we are confident that if the trial court had required the State to
obtain a warrant—rather than granting the rule 16 motion—the
State would have been readily able to do so. For this reason, we
have no difficulty concluding that the trial court’s order complied
with the “constitutional limitations” imposed on rule 16 discovery
orders. See Utah R. Crim. P. 16(h).
¶24 	This is to say nothing of the fact that Defendant was likely
afforded more protection than if the State had simply obtained a
warrant, which is typically accomplished ex parte. Utah law
requires the State, when seeking a search warrant, to demonstrate
5. On appeal, Defendant does not argue that probable cause did
not exist.

State v. White
20141003-CA 	12 	2016 UT App 241
“probable cause, supported by oath or affirmation” and to
“particularly describe the person or place to be searched and the
person, property, or evidence to be seized.” Utah R. Crim. P.
40(c)(2). Here, the State attached such an affidavit to its first rule
16 motion. Additionally, Defendant was given the opportunity to
participate in two separate hearings regarding the State’s rule 16
motions before he surrendered a sample of his DNA—something
search-warrant subjects do not have the opportunity to do. See
State v. Easthope, 668 P.2d 528, 531–32 (Utah 1983).
¶25 	Finally, subsection (g) of rule 16 provides that where a
party fails to comply with a discovery obligation, “the court may
order such party to permit the discovery or inspection, grant a
continuance, or prohibit the party from introducing evidence not
disclosed, or it may enter such other order as it deems just under the
circumstances.” Utah R. Crim. P. 16(g) (emphases added). Thus,
rather than limiting a trial court’s discretion, the rule provides for
a number of specific options for the trial court to consider,
including 	any 	order 	that 	circumstances 	might 	justify.
Accordingly, when Defendant refused the order for a buccal
swab, the trial court was well within its discretion in ordering the
non-intrusive sampling by force, if necessary.
II. Victim’s Prior Assault Charge
¶26 	We 	next 	consider 	whether 	the 	trial 	court 	abused 	its
discretion 	when 	it 	limited 	Defendant’s cross-examination 	of
Victim 	about 	two 	specific 	statements. 	These 	statements,
Defendant 	contends, 	“bolstered 	[Victim’s] 	character 	for
peacefulness.” First, on direct examination, Victim explained that
while he was fighting with the intruder, “I noticed that he was a
young man. . . . And I felt compassion not to kill him, because I
imagine my son, so I threw the knife to the ground.” Then, he
reiterated, “I repeat, I didn’t want to cause any harm to him
because I don’t have a criminal mind.” Defendant’s counsel asked
permission “to inquire into what it is he meant,” and indicated
that “depending on his answer, what that might be, it may, in fact,
open the door to some discussion of” Victim’s prior assault

State v. White
20141003-CA 	13 	2016 UT App 241
charge.6 The trial court decided it would not allow such an
inquiry, explaining, “I don’t think that was sufficient opening up
[of] any door to allow further follow up at this time.” Defendant’s
arguments that this decision was erroneous are unpreserved.
¶27 	Defendant first argues that he should have been allowed to
question Victim as requested under rule 405 of the Utah Rules of
Evidence, particularly under the rule’s provision that “[o]n cross-
examination of the character witness, the court may allow an
inquiry into relevant specific instances of the person’s conduct.”
See Utah R. Evid. 405(a). This rule is intertwined with rule 404,
which governs the admission of character evidence. Courts use
rule 404 to determine when character evidence is admissible and
rule 405 to determine how that evidence is to be admitted.
Compare id. R. 404, with id. R. 405.
¶28 	But Defendant never raised below—and thus did not
preserve for appeal—any argument regarding rule 404 or 405
admissibility. To have preserved his challenge for our review,
Defendant 	must 	have 	“provide[d] 	the 	trial 	court 	with 	the
opportunity 	to 	address, 	and 	correct, 	a 	claimed 	error” 	by
“specifically” raising it. See State v. Crabb, 2011 UT App 440, ¶ 2,
268 P.3d 193 (per curiam).
Issues that are not raised at trial are usually deemed
waived. An issue is preserved for appeal only if it
was presented to the trial court in such a way that
the trial court had an opportunity to rule on it. The
appellant must present the legal basis for a claim to
the trial court, not merely the underlying facts or a
tangentially related claim.
State v. Martinez, 2015 UT App 193, ¶ 27, 357 P.3d 27 (alterations,
citations, and internal quotation marks omitted).
6. The statement of counsel is unambiguous in context. Counsel
maintained that “the door” had not yet been opened.

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¶29 	A review of the transcript in this matter shows that rules
404 and 405 of the Utah Rules of Evidence were not the bases of
any objection or ruling. As quoted above, the only request was to
question the witness to see if further questioning “may, in fact,
open the door.” This is a different question entirely and is
governed by rule 611(b) of the Utah Rules of Evidence (which
addresses the scope of cross-examination), not rules 404 or 405.
Further, 	Defendant 	does 	not 	argue 	on 	appeal 	that 	further
questioning might have opened the door. Thus, Defendant both
does not appeal the actual ruling of the trial court and did not
provide the trial court with the opportunity to make any rulings
under 	rules 	404 	or 	405. 	Therefore, 	this 	argument 	was 	not
preserved, and we decline to address it further.
¶30 	Defendant next argues that Victim’s assault charge was
admissible under rule 608 of the Utah Rules of Evidence, which
allows introduction of evidence about a witness’s character for
untruthfulness. See Utah R. Evid. 608. Defendant maintains that
when Victim claimed on the witness stand to be compassionate
and to lack a criminal mind, the assault charge became evidence
of Victim’s character for untruthfulness because it showed that
this testimony was not true. Furthermore, Defendant argues that
such evidence did not run afoul of rule 404(b), citing the Utah
Supreme Court’s decision in State v. S.H., 2002 UT 118, 62 P.3d
444.
¶31 	We 	decline 	to 	review 	this 	issue 	because 	it, 	too, 	is
unpreserved. Defendant never informed the trial court that the
assault charge could potentially be used to demonstrate a lack of
credibility on the part of Victim, except in the limited context of
Victim’s I-918 petition. See infra ¶¶ 32–40. Thus, as it relates to
Victim’s statements of his compassion and lack of a criminal
mind, the assault charge, and its bearing on rule 608, was not
“sufficiently raised to a level of consciousness before the trial
court,” and we will not consider it. See State v. Richins, 2004 UT

State v. White
20141003-CA 	15 	2016 UT App 241
App 36, ¶ 8, 86 P.3d 759 (citation and internal quotation marks
omitted).7
III. Victim’s I-918 Petitions
¶32 	Defendant next challenges his inability to cross-examine
Victim about Victim’s refusal to disclose a copy of his I-918
petitions. We conclude that the requested cross-examination was
irrelevant. In any event, Defendant was not harmed by the trial
court’s refusal to allow the questioning. I-918 petitions help
“provide temporary immigration benefits to aliens who are
victims of qualifying criminal activity, and to their qualifying
family 	members, 	as 	appropriate.” 	I-918, 	Petition 	for 	U
Nonimmigrant Status, U.S. Citizenship and Immigration Services,
https://www.uscis.gov/i-918 	[https://perma.cc/LJ99-VBTA]. 	As
Defendant explains, “one of defense counsel’s trial strategies was
to suggest that [Victim] had a motive for being deceptive about
the details of the May 11, 2012 incident,” namely, “to gain legal
status in the United States.” To help develop this trial strategy,
Defendant sought to cross-examine Victim concerning whether he
“had been given the opportunity to release his I-918 documents to
the defense and had declined to do so.” The trial court refused to
allow this questioning, determining that it was “not relevant for
any purpose,” because it was Victim’s right not to provide those
documents 	to 	the 	defense. 	The 	trial 	court 	instead 	allowed
Defendant 	to 	have 	an 	expert 	witness 	provide 	“general
information as to how this process works” and to elicit from
Victim “the simple fact” that he and members of his family had
filed I-918 petitions.
¶33 	On appeal, Defendant asserts that the trial court’s ruling
exceeded its discretion, as Victim’s “decision not to disclose the
contents of his I-918 documents was unquestionably relevant”
and the “jury could reasonably have inferred from [Victim’s]
decision not to disclose the I-918 documents that they contained
7. Defendant does not ask us to consider either his rule 405
challenge or his rule 608 challenge under the plain error doctrine.

State v. White
20141003-CA 	16 	2016 UT App 241
allegations inconsistent with what [Victim] told investigators, and
which might be inconsistent with his preliminary hearing and
trial testimony.” We disagree with Defendant and conclude that
the trial court did not abuse its discretion in ruling that the
requested cross-examination was irrelevant.
¶34 	“Evidence is relevant if: (a) it has any tendency to make a
fact more or less probable than it would be without the evidence;
and (b) the fact is of consequence in determining the action.” Utah
R. Evid. 401. Defendant argues that Victim’s failure to disclose the
I-918 petitions to the defense makes it more probable that Victim
fabricated his account of the events in question.
¶35 	First, Defendant has not shown—or even attempted to
show—that he was entitled to receive those documents. And as
the State points out, “there are a number of legitimate reasons
why [Victim] would not want to give his immigration forms
directly to the defense.” Consider, for example, the fact that
Victim found Defendant—a stranger—in the bathroom of his
home, without pants on. This discovery was made shortly before
Defendant declared that he was there for Victim’s daughter. And
this declaration was made shortly before Defendant engaged in a
physical altercation with Victim. Under these circumstances,
Victim’s decision to withhold the sort of personal information
contained in the I-918 petitions, including information about his
daughter, from the defense seems wholly reasonable.
¶36 	In any event, the inference that Defendant argues the jury
would have made constitutes speculation, especially considering
the trial court’s in camera review of the documents. See supra ¶ 8.
Defendant has not challenged the trial court’s in camera finding
that the petitions contained no exculpatory information, nor does
Defendant argue that the trial court erred in failing to order
production or disclosure of the application documents.
¶37 	It follows that cross-examination about Victim’s refusal to
provide copies of the petitions directly to the defense had no
tendency to make it more probable that Victim had fabricated his
story. Thus, the trial court did not abuse its discretion when it

State v. White
20141003-CA 	17 	2016 UT App 241
concluded 	that 	the 	requested 	line 	of 	questioning 	was 	“not
relevant for any purpose.”
¶38 	But even if we agreed with Defendant that the trial court
should have allowed the cross-examination, we see no reasonable
likelihood that the cross-examination would have changed the
outcome of the trial.
¶39 	Defendant’s assumption about what the jury would have
inferred is not based in fact. There is no evidence on the record
that the petition contained falsehoods. The trial court even
performed its own in camera review of these documents and did
not “find anything potentially exculpatory in the information
provided.” Most importantly here, Defendant actually presented
the evidence necessary to develop his stated trial strategy: his
expert witness testified regarding the process and purpose of
obtaining a U visa and Defendant asked Victim whether he had
filed I-918 petitions. Then, in his closing argument, defense
counsel argued that Victim had “a reason to make this look as bad
as it can be” to take advantage of the U visa process.
¶40 	Because Defendant cannot show that there was anything
suspicious in Victim’s I-918 petitions, he cannot show that further
questioning Victim on the subject would have led to any evidence
different 	from 	the 	evidence 	that 	was 	actually 	presented.
Defendant was not harmed by an inability to present what would
have, at best, constituted cumulative evidence. In other words,
even if the trial court erred by concluding that Defendant’s
potential questions were irrelevant, that error was harmless.
IV. Victim’s Statements That He Felt Accused
¶41 	Defendant next argues that the trial court should have
granted his motion for a mistrial. During the course of his
testimony, Victim indicated, without being asked, that he felt
more accused than Defendant. See supra ¶ 7 & note 1. Defense
counsel objected. The trial court instructed that the comment “will
be stricken from the record and the jury is to disregard the last
comment,” and it admonished Victim, “I’m going to ask you not

State v. White
20141003-CA 	18 	2016 UT App 241
to have any further comments that are not in response to a direct
question.” Then, mistakenly believing that he was being asked
what he had said before—the comment he made that had been
stricken—Victim explained, “I said that I felt more accused than
the defendant.” The prosecutor, defense attorney, and the trial
court 	all 	interjected 	and 	agreed 	that 	there 	“was 	a
misunderstanding 	with 	regard 	to 	[the] 	question.” 	Defense
counsel then clarified, “I’m not talking about the comment you
may have made. What I’m talking about is . . .” and continued his
questioning.
¶42 	After Victim was excused from the witness stand, and after
the jurors were sent home for the day, Defendant moved for a
mistrial “based on that comment.” The court denied the motion
but said, “To the extent you think a curative instruction is needed
in writing to go to the final set, I’d be happy to look at that and we
can discuss that further.” Defendant never asked for such a
curative instruction, and no further reference was made to
Victim’s comments.
¶43 	Our supreme court has explained “that a mistrial is not
required 	where 	an 	improper 	statement 	is 	not 	intentionally
elicited, is made in passing, and is relatively innocuous in light of
all the testimony presented.” State v. Allen, 2005 UT 11, ¶ 40, 108
P.3d 730. Defendant acknowledges that the statements were not
intentionally elicited. And we consider the two statements—one
not captured on the record and one clarifying what was not
captured on the record, unfortunately causing it to be repeated in
the process—to have been made in passing. But perhaps most
importantly, even if we assume that there was some error in how
the trial court handled the statements, Defendant cannot show
that he was harmed by the error; he cannot show that Victim’s
statements were not “relatively innocuous in light of all the
testimony presented.” See id.
¶44 	As the State points out, “given the strength of the State’s
case, 	it 	is 	unlikely 	that 	[Victim’s] 	comment 	influenced 	the
verdict.” Victim was one of nearly a dozen witnesses who testified
at trial over a period of three days. The two statements—or

State v. White
20141003-CA 	19 	2016 UT App 241
references 	to 	them—appear 	on 	just 	two 	of 	more 	than 	800
transcript pages. There was no dispute that Victim and his family
did not personally know Defendant, nor did they ever invite him
into their home. Yet Defendant’s DNA was found on the clothes
iron the intruder used in his altercation with Victim. Simply put,
our confidence in the jury’s verdict has not been undermined. See
State v. Knight, 734 P.2d 913, 920 (Utah 1987). Instead, the record
reflects that the comments were not intentionally elicited, were
made in passing, and were relatively innocuous in light of all the
other testimony presented.8
V. Cumulative Error
¶45 	Finally, 	we 	consider 	Defendant’s 	argument 	that 	his
convictions 	“must 	be 	reversed 	under 	the 	cumulative 	error
doctrine.” “Under the cumulative error doctrine, we will reverse
only if the cumulative effect of the several errors undermines our
confidence . . . that a fair trial was had.” State v. Dunn, 850 P.2d
1201, 1229 (Utah 1993) (omission in original) (citation and internal
quotation marks omitted). Defendant claims that the errors he
alleges undermine confidence in his convictions because they
prevented 	him 	from 	effectively 	presenting 	his 	affirmative
defenses.
¶46 	“In assessing a claim of cumulative error, we consider all
the identified errors, as well as any errors we assume may have
occurred.” Id. For purposes of our earlier analysis, we decided
8. Defendant argues that the statements were harmful because
they “sought to negate [Defendant’s] claim of self-defense.”
Specifically, 	he 	contends 	that 	“defense 	counsel’s 	effort 	to
demonstrate that the primary alleged victim may have actually
been 	the 	aggressor[] 	was 	undermined 	by 	that 	individual’s
statements that he was feeling 	as if 	he 	were 	an 	accused.”
Defendant draws this conclusion without explaining how that
statement actually undermined his self-defense theory, which
was problematic at best given the circumstances.

State v. White
20141003-CA 	20 	2016 UT App 241
certain issues, in part, by assuming that error had occurred. See
supra ¶¶ 38–40, 43–44. Thus, our cumulative error analysis
requires that we consider those assumed errors, along with their
harmful effect. See Dunn, 850 P.2d at 1229.
¶47 	In so doing, we conclude that the cumulative effect of any
assumed errors has not diminished our confidence in Defendant’s
convictions. None of the evidence that Defendant either sought to
admit or exclude would have undermined Victim’s testimony
that Defendant was not invited into his home. Similarly, it would
have done nothing to prevent the jury’s finding that he entered
Victim’s home with the intent necessary to be convicted of
burglary.9 See Utah Code Ann. §§ 76-6-202, 76-6-203 (LexisNexis
2012) 	(outlining 	the 	elements 	of 	burglary 	and 	aggravated
burglary). From there, the case against Defendant solidifies. As
defense counsel acknowledged in his closing argument, “[I]f the
man by the time he is discovered in the bathroom, has escalated
[to] burglary, then game over. . . . [Y]ou don’t get to defend
yourself when you . . . are committing burglary.” See State v.
Standiford, 769 P.2d 254, 265 (Utah 1988) (analyzing without
disapproving a self-defense jury instruction that “stated that the
defense was not available if defendant was committing or fleeing
from the commission of a burglary”); see also Pitts v. State, 989 So.
2d 27, 31 n.3 (Fla. Dist. Ct. App. 2008) (“[I]f a defendant enters a
conveyance or dwelling to commit an offense other than battery,
but then commits a battery when confronted . . . [t]he defendant
would not be entitled to assert self-defense on the battery because
the battery occurred when the defendant was involved in the
commission of a burglary . . . .”); State v. Evans, 755 S.W.2d 673,
674 (Mo. Ct. App. 1988) (rejecting a challenge on appeal where
“Defendant would have us believe a criminal caught in the
commission of a burglary has the right to resist apprehension by
the victim and has the right to use a weapon in this resistance”).
Compare Utah Code Ann. § 76-2-402 (LexisNexis 2012) (“A person
is justified in threatening or using force against another when and
9. On appeal, Defendant does not challenge the jury’s finding of
intent.

State v. White
20141003-CA 	21 	2016 UT App 241
to the extent that the person reasonably believes that force or a
threat of force is necessary to defend the person or a third person
against 	another 	person’s 	imminent 	use 	of 	unlawful 	force.”
(emphasis added)), with id. § 76-2-405 (“A person is justified in
using force against another when and to the extent that he
reasonably believes that the force is necessary to prevent or
terminate the other’s unlawful entry into or attack upon his
habitation . . . .”).
¶48 	None of the assumed errors, if corrected, would have led
the jury to believe that Defendant was not in Victim’s home.
Similarly, 	no 	correction 	of 	the 	assumed 	errors would 	have
convinced the jury that he was there lawfully. Thus, we cannot
conclude that the cumulative effect of these assumed errors
undermines our confidence in Defendant’s convictions.
CONCLUSION
¶49 	The arguments Defendant makes on appeal are either
unpreserved or unpersuasive, or the errors assumed did not
result in harm to Defendant. We therefore affirm his convictions.