State of Utah v. Brian Allen Fouse

¶1 Defendant Brian Fouse appeals his convictions on one count

of stalking, a third degree felony, see Utah Code Ann. § 76-5-106.5

(LexisNexis 2012); three counts of felony violation of a protective

order, see id. §§ 76-5-108, 77-36-1.1; and three counts of class A

State v. Fouse

2. Because the provisions in effect at the relevant times do not differ

materially from the statutory provisions currently in effect, we cite

the current version of the Utah Code as a convenience to the

reader.

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misdemeanor violation of a protective order, see id. § 76-5-108.2 We

affirm.

BACKGROUND

I. Stalking and Protective Order

¶2 Defendant and Victim were married for six years before

separating in 2011. Following an incident of domestic violence,

Victim obtained a temporary protective order directed at

Defendant. The address listed on that order was that of a friend

(Friend) with whom Victim, Defendant, and their three children

had been living. Shortly after their separation, Defendant called

Victim's workplace and left the following message: "Can you

please tell my wife that I need her to come identify a dead body.”

There was no dead body, but Victim was "really scared” and called

the police, and Defendant was arrested. He pled guilty to violating

a protective order.

¶3 A few days after Defendant's arrest, Victim obtained a

permanent protective order. The order required Defendant to not

"contact, phone, mail, email, or communicate in any way with

[Victim] either directly or indirectly” and to "stay away” from the

address listed. The address listed on this order was the apartment

of one of Victim's sisters, where Victim and the children were

staying. The apartment was one unit of a four-plex, and another of

Victim's sisters lived next door. Each of the apartments had its own

unique street address, as opposed to the entire four-plex sharing an

address and each of the apartments being distinguished by an

apartment or unit number. The order did not list either of Victim's

sisters as protected persons.

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¶4 About a week after the permanent order was entered,

Defendant mailed an envelope to the address listed on the

protective order with the designation "Apt. #1 or 2.” The envelope

was addressed to both of Victim's sisters, but the first letter inside

was written to the sister who lived next door. It expressed

Defendant's love for Victim, mentioned his desire that Victim drop

the protective order, and asked the sister to please send him photos

of his family. He closed the letter by writing, "Please just hold onto

this other stuff. I don't have anyone else, but it'll mean a lot to me.

Thanks.” The envelope also contained two letters written to Victim,

in which Defendant apologized for his past behavior and asked for

forgiveness. The final letter contained the following statement:

"Please hold onto this. It's something that the mental health doctor

told me I should do even though I can't send nor talk to my wife or

kids but writing sure does help.”

¶5 Another envelope was sent the next day. It was also directed

to the address listed on the protective order but with the notation

"Apt. #1 or 2 maybe 3” and with the name of the sister who lived

next door to Victim. The letter informed the sister that "things are

starting to look a lot better” because Friend, who was an alleged

victim in a prior altercation with Defendant, had recanted his

statement to the police. Defendant also stated that he was

considering suing Victim for lying in connection with obtaining the

protective order and that consequently Victim might be facing

"serious charges” of her own, but that Victim had the power to

stop all that by dropping the protective order.

¶6 Less than a week later, Defendant mailed a letter to the same

sister with a similar apartment designation. In the letter, he

thanked the sister for her friendship, said he wanted to save his

marriage, and told the sister about the harm that divorce would

cause Victim. The letter also contained a line that said, "Well our

storage if it doesn't get paid on by Wednesday will be going up for

auction . . . . It'd be great if your sister paid on it so that we don't

lose it.” The letter then asked the sister, "Please hold this poem it

expresses my feelings towards [Victim], but I don't want to lose it

State v. Fouse

3. At the time this letter was written, Defendant was in jail.

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in here.”3 The back of the included poem addressed Victim directly

and asked her to "make things right for us and our beautiful boys.”

¶7 The next month Victim found a box on her back doorstep.

The box contained Victim's wedding dress, bridesmaids' dresses,

a picture of Defendant and Victim dancing at their wedding,

various letters, and a bride and groom figurine from the top of

their wedding cake. The groom's head was broken off. Most of the

letters were addressed to no one in particular, but one was

addressed to God and "my wife my #1 Love & boys.” Another was

addressed only to the three children, who were also listed on the

protective order as persons whom Defendant could not contact.

Defendant apologized to Victim in these letters and asked for her

forgiveness. The box also purportedly contained "everything

[Defendant] own[ed]” and a letter addressed, in Defendant's

words, to "All of you who honestly think your truely better than

me and who wants to take my place in my family's life.” The letter

chastised family members for meddling in Defendant's marriage.

¶8 Sometime between receiving the letters and receiving the

box, Victim also received two voicemail messages. The first one

was muffled, but Victim described the voice as "kind of like that

scary, scary voice sound on that scary movie.” Victim identified the

voice on the second message as Defendant's. The message stated

that he loved and missed her. A police officer listened to the

messages before they were accidentally erased, but there was no

documentation of the telephone numbers from which the messages

originated.

¶9 During this same period, Defendant also mailed court

documents to the address listed on the protective order. One

envelope was addressed to both of Victim's sisters but listed

no apartment number and contained, among other things,

Defendant's request to dismiss the protective order, his answer

and counterclaim to the divorce proceedings, a form related to a

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parent-time dispute, and a document containing Friend's

recantation. Another envelope was addressed to Friend but listed

no mailing address. The return address listed Victim's name and

address, which is how she found it in her mailbox—marked by the

Postal Service as "Return to Sender.” Victim testified that the

envelope was addressed in Defendant's handwriting and contained

duplicates of some of the previously mailed documents as well as

information about the couple's storage unit and Victim's retirement

plan.

¶10 When each of these communications arrived at the fourplex,

the sisters gave them to Victim. Victim testified that

Defendant "was very controlling and made [her] feel like [she] was

the one that did things wrong.” She said that she chose to report

the letters, voicemails, and box because she had tried to leave

Defendant before, but, she testified, "He was very controlling, very

verbally abusive and I finally was able to get away and get the

protective order. And by me reporting it, I just felt was the right

thing to do.”

¶11 Defendant was charged with six counts of violation of a

protective order, a third degree felony when committed within five

years of another domestic violence offense. See Utah Code Ann.

§ 77-36-1.1 (LexisNexis 2012). Three of the charges were later

reduced to class A misdemeanors. Defendant was additionally

charged with one count of stalking, also a third degree felony.

II. Trial Background

¶12 During jury selection, the trial court asked the potential

jurors to alert the court if they thought they would have any

trouble being fair. The judge explained to the potential jurors the

reasoning behind the jury selection process and why attorneys are

allowed to eliminate potential jurors. The judge explained that she

herself had once been called as a potential juror. She remembered

pondering whether or not she could be fair:

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And I thought, okay, yeah, I have been a prosecutor

for 30 years, but, frankly, I think I could be fair. I

don't think the Defense thought I could be fair. But I

thought, you know, when a case came in to me as a

prosecutor I didn't just automatically assume people

were guilty. You know, I looked at the case. I looked

at it very carefully. I looked at the evidence that was

brought in by the law enforcement. And if I didn't

think that there was enough evidence to get a

conviction I didn't file the case. But I thought, you

know, I can be fair. I have been fair. I am fair when I

look at a case that's brought in to be filed. So, you

know, I answered that I could be fair.

The judge went on to explain that a sidebar was held at the trial in

which she was called as a potential juror and she could tell that the

defense attorney had requested that she be removed. The judge

presiding over that trial disagreed, but ultimately she was not

selected because a full jury was selected before her number was

called.

¶13 She then explained that our justice system needed jurors

who could be fair and so the selection process allowed both sides

to strike people from the jury pool for "whatever reason, and it's

not the color of your hair or the color of your eyes. . . . It is just

sometimes you kind of look at it and think, well, that background,

I am a little concerned with that background whether that person

will listen fairly.” The trial court then stated, "So that's what they

are doing now,” and asked if any members of the jury pool had

questions before the attorneys were allowed to begin exercising

their peremptory challenges.

¶14 During closing arguments, defense counsel argued that

Defendant was innocent because there was "zero” evidence that

Defendant had ever been served with the protective order. Defense

counsel also argued his theory that Defendant did not attempt to

contact Victim but only Victim's sister, who was not a protected

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person. After referring to the State's theory that Defendant tried to

contact Victim through her sister, defense counsel then stated, "Do

you know who else doesn't believe that theory? State of Utah. . . .

[I]n order for their theory to work, they'd have to charge someone

else.” Defense counsel went on to explain that the State did not

believe its own theory of Defendant's guilt because otherwise they

would have charged the sister who lived next door as an

accomplice to the crime for giving Victim the letters that were

mailed to her. On rebuttal, the State argued, "I'll bet [Victim] didn't

know her sister was a fish. The fish I'm talking about is a herring,

a red herring.” As the State was explaining what a red herring was,

defense counsel interrupted, and an unrecorded sidebar conference

was held. The State then continued, explaining that a red herring

was a distraction for hunting hounds. "When [defense counsel]

talks about [Victim's sister], that's a huge red herring. When he

discusses oh, well, the State doesn't even believe its case, that's

asinine. This case has been proven to you with two witnesses, three

witnesses. They told you what happened.”

¶15 In response to defense counsel's argument that there was

"zero” evidence that Defendant had been served with a protective

order, the State pointed the jury to evidence that a police officer

had signed the return of service, signifying that Defendant had

been served the order at the jail, as well as Defendant's own

statements in his letter to Victim's sister referring to the contents of

the protective order. The State went on to say,

The idea that he is not served is frankly ridiculous.

He was served that protective order. He knew dang

well what he was doing. He was getting at [Victim]

one way or the other. And if he thinks he is cute and

he can get around it by addressing the envelopes to

[Victim's sister], very frustrating. He is guilty. She is

a protected person. There is proof of service.

¶16 During deliberations, the jury sent three questions to the

trial court. The third question asked "if a protective order protects

State v. Fouse

4. Defendant also argues that this issue can be reached through the

"exceptional circumstances” exception to preservation. See State v.

Irwin, 924 P.2d 5, 7 (Utah Ct. App. 1996). However, as we noted in

Irwin, "the 'exceptional circumstances' concept has been reined in

considerably.” Id. at 11. It is a "concept that is used sparingly,

properly reserved for truly exceptional situations . . . involving

'rare procedural anomalies.'” Id. (quoting State v. Dunn, 850 P.2d

1201, 1209 n.3 (Utah 1993)). Such anomalies have included a

defendant being convicted of something that was no longer a

crime, the entry of final judgment by a commissioner with no

authority, and a major shift in the interpretation of settled law. See

id. at 10–11. The events in this case do not fall into the "truly

exceptional” category of "rare procedural anomalies.” See id. at 11.

We therefore consider only whether the issue can be reached under

either the plain error or ineffective assistance of counsel exceptions.

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. . . a person or an address or both.” The trial court sent the

following written answer to the jury: "A protective order protects

the named person and the listed address.” Defendant objected,

arguing that the protective order did not prohibit Defendant from

contacting other people at the address where Victim lived with her

sister.

¶17 The jury convicted Defendant on all counts. He now

appeals.

ISSUES AND STANDARDS OF REVIEW

¶18 Defendant first argues that the trial court improperly

commented on the evidence and bolstered the State's credibility

during jury selection. Because this issue was not preserved,

Defendant must show plain error or ineffective assistance of

counsel. 4 See State v. Irwin, 924 P.2d 5, 7 (Utah Ct. App. 1996). To

show plain error, Defendant must show that "(i) [a]n error exists;

(ii) the error should have been obvious to the trial court; and

(iii) the error is harmful.” State v. Dunn, 850 P.2d 1201, 1208 (Utah

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1993). Claims of ineffective assistance of counsel raised for the first

time on appeal are reviewed as matters of law. State v. Clark, 2004

UT 25, ¶ 6, 89 P.3d 162.

¶19 Defendant next argues that the State engaged in

prosecutorial misconduct. "In determining whether a given

statement constitutes prosecutorial misconduct, the statement must

be viewed in light of the totality of the evidence presented at trial.”

State v. Cummins, 839 P.2d 848, 852 (Utah Ct. App. 1992). We review

a trial court's ruling on "whether the prosecutor's conduct merits

a mistrial” for abuse of discretion. Id.

¶20 Defendant also argues that the trial court's answer to the

jury's question regarding the scope of the protective order was an

erroneous statement of law. "Claims of erroneous jury instructions

present questions of law that we review for correctness.” State v.

Jeffs, 2010 UT 49, ¶ 16, 243 P.3d 1250.

¶21 Defendant contends that there was insufficient evidence to

support three of his convictions of violating a protective order.

"[W]e review the evidence and all inferences which may

reasonably be drawn from it in the light most favorable to the

verdict of the jury.” State v. Shumway, 2002 UT 124, ¶ 15, 63 P.3d 94.

"We will reverse a jury conviction for insufficient evidence only

when the evidence is sufficiently inconclusive or inherently

improbable that reasonable minds must have entertained a

reasonable doubt that the defendant committed the crime of which

he was convicted.” Id.

¶22 Defendant's final argument is that we should overturn his

conviction because of cumulative error. We will reverse a

conviction 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).

State v. Fouse

20120003-CA 10 2014 UT App 29

ANALYSIS

I. Trial Court's Comments During Jury Selection

¶23 Defendant first argues that the trial court improperly

commented on the evidence and bolstered the credibility of the

State's case when the judge told prospective jurors about her own

experience in being called to jury service. Defendant also contends

that defense counsel's failure to object constituted ineffective

assistance of counsel. While the judge's personal narrative had

some potentially problematic elements, we fail to see how the

remarks were a comment on the evidence as no evidence had yet

been presented and her comments were unrelated to any evidence

later presented at trial. We do, however, need to carefully consider

whether the judge's comments improperly bolstered the reputation

of the State or undermined the credibility of defense counsel.

¶24 Utah courts "have made it quite clear in the past that a court

may not comment on the weight of the evidence presented at trial

or comment on the merits of the case in such a way that indicates

a preference toward either party.” State v. Alonzo, 973 P.2d 975, 980

(Utah 1998). We review such comments made by trial judges in

context rather than in isolation. Id. Because this claim is

unpreserved, we consider this argument under the doctrine of

plain error. State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. Under

that doctrine, Defendant must first show that an error was

committed. State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993).

¶25 Defendant argues that the trial judge's comments favored

the prosecution when she stated that as a prosecutor she never filed

charges unless she thought there was enough evidence. Defendant

also argues that the court's comments "undermined the credibility

of defense counsel by suggesting that defense attorneys are biased

and result-driven advocates who are more interested in an acquittal

than in the fairness or justness of the proceedings.”

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¶26 We do not read the trial court's comments, made before a

jury was selected and sworn and before the trial itself began, in that

way. The trial court's comments, viewed in context, are nothing

more than an anecdote aimed at explaining to potential jurors that

they could be stricken from the jury pool by either side for

"whatever reason” even if they had indicated to the court that they

thought they could be fair and unbiased. The trial judge made it

clear that such a system actually promoted justice for both parties.

While the trial judge stated that as a prosecutor she only brought

charges if she thought there was enough evidence to support a

conviction, she did not state that such evidence always leads to a

conviction or that every defendant charged by the State is guilty.

Soon after, and once the jury was empaneled and the trial got

underway, the trial judge instructed the jury to "keep an open

mind throughout the trial” and "to pay attention as the evidence is

presented to you.” And after closing arguments, the trial judge

again instructed the jury, stating, "Neither the lawyers nor I decide

the case. That is your role. Please do not be influenced by what you

think our opinions might be. Make your decision based on the law

. . . and on the evidence presented in court.”

¶27 It is best to avoid such personalized trips down memory

lane as trial judges fill some of the downtime during jury selection.

The history of the jury system, the benefits of jury service, and the

importance of the jury in our justice system are safer topics. But

viewing the judge's comments in context, "we are confident that

the jury was neither confused nor misled” by her remarks about

her own experience as a potential juror. Cf. State v. Taylor, 2005 UT

40, ¶¶ 20–24, 116 P.3d 360 (determining that a trial court's jury

instructions did not bolster a witness's credibility when the

instructions were viewed in context and that the "jury was neither

confused nor misled” because the trial court correctly instructed

the jury on how to assess witness credibility).

¶28 Because we determine that no error occurred, we do not

reach the remaining prongs of plain error analysis. See Dunn, 850

P.2d at 1208–09. Similarly, because we conclude that there was no

State v. Fouse

20120003-CA 12 2014 UT App 29

error to which defense counsel could object, any objection raised

would have been futile. See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d

546. "Failure to raise futile objections does not constitute ineffective

assistance of counsel.” Id.

II. Prosecutorial Misconduct

¶29 Defendant next argues that we should reverse his conviction

due to prosecutorial misconduct. Prosecutorial misconduct

warranting reversal of a criminal conviction occurs, inter alia, when

"the prosecutor's statements during closing argument called the

jurors' attention to matters they were not authorized to consider

during deliberations” and the statements prejudiced the defendant.

State v. Todd, 2007 UT App 349, ¶ 16, 173 P.3d 170. Here, Defendant

claims the prosecutor made improper remarks when referring to

statements made by the defense as "a huge red herring,” claiming

Defendant "knew dang well what he was doing,” referring to

Defendant's behavior as "cute,” and calling the defense theory

"ridiculous” and "asinine.” Defendant claims that the "sarcastic

and gratuitous nature of the comments heightened their

impropriety and denied [Defendant] a fair trial.”

¶30 We first consider the State's comments in response to

defense counsel's assertion that the State did not believe its own

theory, including the "red herring” and "asinine” statements. We

recently considered the question of whether referring to defense

counsel's argument as a "red herring” is prosecutorial misconduct.

See State v. Campos, 2013 UT App 213, ¶¶ 54–57, 309 P.3d 1160. In

Campos, the prosecutor "began his rebuttal by discussing at length

the idiom of a red herring as 'a technique to confuse or distract.'”

Id. ¶ 55. The prosecutor also stated, "And is there any relationship

with a red herring and the defense in this case? They would have

you believe an almost unbelievable story. Why? Simply to confuse

and distract . . . . Why would they do that? Just a red herring. A

ploy to confuse and distract.” Id. (internal quotation marks

omitted). We concluded that the prosecutor's comments in Campos

"crossed the line from permissible argument of the evidence to an

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impermissible attack on defense counsel's character.” Id. ¶ 57. By

labeling the defense's tactic as an intentional technique or ploy

rather than just a distraction, the prosecutor implied that "defense

counsel intended to mislead the jury.” Id. (emphasis in original). We

noted that "[a]rguing that the evidence does not support the

defense theory and that the theory is thus a distraction from the

ultimate issue is fundamentally different from arguing that defense

counsel is intentionally trying to distract and mislead the jury.” Id.

Stated another way, we determined that calling defense counsel's

theory a distraction or irrelevant is permissible but accusing

opposing counsel of using such a distraction as part of a purposeful

scheme to mislead the jury is not. See id.

¶31 Here, defense counsel stated to the jury during closing

argument that the fact that the State had not charged Victim's sister

as an accomplice to Defendant's misdeeds was evidence that the

State did not believe its own theory and that Defendant was

innocent—in other words, because Victim's sister was the one who

handed Victim the letters, she was equally guilty of violating the

protective order and Defendant could not be guilty unless Victim's

sister was, too. While it is conceivable that there could be

accomplice liability for aiding another in violating a protective

order, under the circumstances of this case the argument, frankly,

is silly. Victim's sister's conduct was not restricted by the protective

order against Defendant. And on rebuttal, the State responded by

saying, "I'll bet [Victim] didn't know her sister was a fish. The fish

I'm talking about is a herring, a red herring.” The State then

explained to the jury that red herrings were used to "distract”

hunting hounds and then stated that defense counsel's statements

about Victim's sister were a similar distraction and that the case

against Defendant had been proven by multiple witnesses.

¶32 We conclude that the prosecutor's statements were not

improper because they did not "cross[] the line from permissible

argument to an impermissible attack on defense counsel's

character” and were merely argument "that the theory is . . . a

distraction from the ultimate issue.” Id. We also conclude that the

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statements were a comment about the evidence rather than an

attack on defense counsel's personal character or an argument that

defense counsel was intentionally attempting to mislead the jury.

¶33 The issue at trial was Defendant's guilt, not that of Victim's

sister, and given that defense counsel claimed that the lack of

charges against Victim's sister was relevant to the case and

definitively proved Defendant's innocence, it was entirely

permissible for the prosecutor to criticize the argument for the

nonsense that it was. It was permissible to call the "theory” a

distraction and endeavor to redirect the jury to the issue of whether

Defendant's guilt had been proven by the evidence presented

during trial. See Campos, 2013 UT App 213, ¶ 57. And while using

terms like "asinine” and "red herring” can be "unwise and

hyperbolic,” see State v. Tillman, 750 P.2d 546, 556 (Utah 1987),

"colloquial, vigorous, and colorful” comments often fall "within

the wide latitude permitted counsel in presenting closing

arguments to the jury,” State v. Bryant, 965 P.2d 539, 549–50 & n.10

(Utah Ct. App. 1998) (holding statements made by prosecutor in

response to defense counsel's claims that a witness had lied—"Give

me a break,” "You have to be kidding me,” and "The lady is a 70-

year-old sweetheart. I think of her as Aunt Bea like on the Andy

Griffith show”—did not constitute prosecutorial misconduct). In

this case, defense counsel's comment was asinine and the State's

characterization of it as such during rebuttal did not rise to the

level of prosecutorial misconduct.

¶34 The statements made by the State to rebut Defendant's claim

that there was "zero” evidence to show that Defendant had been

served with the protective order, including statements that the

argument was "ridiculous” and that Defendant "knew dang well

what he was doing,” and the statement that he was being "cute” by

sending letters to Victim through her sister, are on the same

footing. Again, while such language may have been "unwise and

State v. Fouse

5. Because we conclude that no prosecutorial misconduct occurred,

we have no need to determine whether the prosecutor's comments

prejudiced Defendant. We therefore leave for another day, as we

did in State v. Wright, 2013 UT App 142, 304 P.3d 887, the question

of whether the burden rests on the State to show that the harm

suffered by Defendant as a result of prosecutorial misconduct was

"harmless beyond a reasonable doubt” or whether the burden rests

on Defendant to show that he was prejudiced by the error. See id.

¶ 41 n.6 (observing that the law regarding the correct standard of

review for prosecutorial misconduct is currently unsettled).

20120003-CA 15 2014 UT App 29

hyperbolic,” Tillman, 750 P.2d at 556, it does not rise to the level of

prosecutorial misconduct, see Bryant, 965 P.2d at 549–50 & n.10.5

III. Answer to Jury Question

¶35 Defendant argues that the trial court improperly instructed

the jury when responding to a question about the protective order.

Utah law states that a protective order may "prohibit the

respondent from harassing, telephoning, contacting, or otherwise

communicating with the petitioner, directly or indirectly.” Utah

Code Ann. § 78B-7-106(2)(b) (LexisNexis 2012). To that end,

protective orders may also "order that the respondent is excluded

from the petitioner's residence and its premises, and order the

respondent to stay away from the residence, school, or place of

employment of the petitioner.” Id. § 78B-7-106(2)(c). Defendant

argues that based on the plain language of the statute, the court

was incorrect in stating that "[a] protective order protects the

named person and the listed address,” thereby prohibiting

Defendant from writing a letter to a non-protected person who

resided at the same address.

¶36 Defendant argues that this error was prejudicial because it

took away from the jury the question of intent. By informing the

jury that any contact with the address was a violation of the order,

Defendant argues that the trial court did not allow the jury to

consider whether Defendant, through his communications

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ostensibly limited to Victim's sister, intended to contact or

communicate with Victim either "directly or indirectly.” The State

argues, however, that the "plain language of Utah's protective

order provisions reflects that their purpose is to restrain the

defendant from further harming and harassing the protected

person and placing her in fear” and, thus, the "stay away”

provision in the protective order referring to Victim's address

properly contemplates both physical and non-physical contact with

the address.

¶37 There is some basis for the trial court's characterization, as

the protective order statute mentions that such orders may provide

for exclusion from identified residences, schools, and places of

employment. Technically speaking, though, the trial court's

characterization was an oversimplification of the law. Although the

statute refers to protected places such as homes or businesses from

which the subject of a protective order must stay away, the focus

of the protection is still on a person, i.e., any references in the

protective order to an address or physical location are meant as a

means to protect the person and not as a means to protect a

particular place, per se. See id. (stating that a court may order a

respondent to "stay away from the residence, school, or place of

employment of the petitioner, . . . or any specified place frequented

by the petitioner”) (emphasis added). But even if we conclude that

the trial court's answer constituted error, we determine the error

was harmless.

¶38 We will only reverse a jury verdict due to error if there is a

reasonable likelihood that it altered the result. State v. Jeffs, 2010 UT

49, ¶ 37, 243 P.3d 1250. This standard has not been met here.

Defendant argues that a correct statement of law could reasonably

have led to different results on four of the six counts of violating a

protective order. We disagree. One of the counts that Defendant

argues might have been altered was related to Defendant leaving

a box—or causing it to be left—at the address listed in the

protective order. In the box was a letter addressed, in part, to

victim. Regardless of any response to the jury by the trial court, this

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was a clear violation of the provision in the protective order

requiring Defendant to stay away from the premises or the

provision precluding him from contacting Victim, even indirectly.

¶39 The remaining counts contested by Defendant relate to the

letters mailed to Victim's sisters. Defendant argues that "[b]ut for

the trial court's erroneous explanation of what constituted a

violation of the protective order, the jury could have found that

[Defendant] was not guilty . . . because he did not contact [Victim]

directly or indirectly; rather, he contacted [Victim's sister]—a

person not covered by the protective order.” We do not agree that

the trial court's instruction adversely impacted the jury's verdict in

light of the overwhelming evidence that Defendant fully intended

to contact Victim through the letters to Victim's sisters. One of the

mailings contained letters specifically addressed to Victim, as did

the box. The others contained veiled threats against Victim as well

as a plea to settle the account on their storage unit.

¶40 Defendant argues that although the letters may appear to be

directed to Victim, his intent was to have Victim's sister hold onto

the letters for him, not to have them distributed to Victim. But the

jury was not required to accept Defendant's explanation, and we

do not believe that the trial court's answer made it any less likely

that the jury would do so. The jury could readily find that

Defendant's decision to mail a letter to Friend with no address

listed except for Victim's as the return address was a knowing and

intentional attempt by Defendant to contact Victim. The same is

true of his sending envelopes to Victim's sisters—one of whom

lived at the same address as Victim, with the other living next

door—and which letters contained messages specifically addressed

to Victim. A jury could readily infer that communication directed

to or dealing with one's ex-spouse, and sent to the ex-spouse's

siblings, will routinely and predictably be conveyed by the siblings

to their family member. Such an inference is particularly sound in

this case, given the jury's awareness that Victim and her sisters

were close—in both senses of that term. We therefore conclude that

any error in the court's answer to the jury was harmless.

State v. Fouse

20120003-CA 18 2014 UT App 29

IV. Insufficiency of the Evidence

¶41 Defendant argues that the evidence is insufficient to support

three of the convictions for violation of a protective order,

specifically those counts turning on envelopes mailed to Victim's

sisters. Defendant argues primarily that there were innocent

explanations for each of the communications sent to Victim's

sisters, particularly the sister who lived next door, and that he only

sent envelopes to the address listed on the protective order because

he did not realize that each unit had its own address rather than the

same address and different unit numbers. Thus, Defendant argues,

there was insufficient evidence to show he intended to

communicate with or contact Victim when one view of the

evidence showed that he simply misprinted the address of Victim's

sister.

¶42 "[W]e review the evidence and all inferences which may

reasonably be drawn from it in the light most favorable to the

verdict of the jury.” State v. Shumway, 2002 UT 124, ¶ 15, 63 P.3d 94.

"We will reverse a jury conviction for insufficient evidence only

when the evidence is sufficiently inconclusive or inherently

improbable that reasonable minds must have entertained a

reasonable doubt that the defendant committed the crime of which

he was convicted.” Id.

¶43 As discussed above, supra ¶¶ 38–40, there is overwhelming

evidence supporting the jury's verdict. Just because one view of the

evidence—that Defendant was unsure of Victim's sister's

address—supported his theory at trial does not mean that the

evidence was insufficient to support other theories, including the

view the jury apparently found the most compelling. Given the

amount of material in each of the letters that was directed at or

related to Victim, the jury had abundant evidence on which to

convict Defendant, no matter which sister's name appeared on the

envelope. The evidence in this case is simply not "sufficiently

inconclusive or inherently improbable” as to warrant reversal. See

Shumway, 2002 UT 124, ¶ 15.

State v. Fouse

20120003-CA 19 2014 UT App 29

V. Cumulative Error

¶44 We will reverse a conviction 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). Having

determined in one instance that even if any error occurred it was

harmless and that otherwise no error occurred, we necessarily

determine that the cumulative error doctrine does not apply. And,

in any event, our confidence in the jury's verdict has not been

undermined.

CONCLUSION

¶45 The trial court's statements to prospective jurors about the

judge's own jury experience did not improperly bolster the State's

case. The State's comments made in rebuttal to Defendant's closing

argument did not rise to the level of prosecutorial misconduct. The

explanation given to the jury regarding the scope of the protective

order may have been technically imprecise, but any error was

harmless. And there is ample evidence to support the jury's

verdict.

¶46 Affirmed.

CHRISTIANSEN, Judge (concurring in part and concurring in the

result in part):

¶47 I concur in the majority opinion except as to Part I, in which

I concur in the result only. The majority concludes that the trial

judge's comments regarding her experience as a potential juror,

when viewed in context, were "nothing more than an anecdote”

explaining the jury selection process and were not improper. Supra

¶ 26. Unlike the majority, I believe that the trial judge's comments

improperly bolstered the prosecution and disparaged the defense

State v. Fouse

20120003-CA 20 2014 UT App 29

in this case. However, because the trial court's instructions to the

jury were sufficient to cure any resulting prejudice, I concur in

affirming Defendant's convictions.

¶48 A court may not comment on the weight of evidence, the

credibility of a witness's testimony, or the merits of the case in such

a way that indicates a preference toward either party. State v.

Alonzo, 973 P.2d 975, 980 (Utah 1998); State v. Adams, 583 P.2d 89, 91

(Utah 1978). It is true that the trial judge's comments here did not

necessarily indicate that the judge had any special knowledge of

this case, and her comments were made before any evidence was

presented. However, the judge explained to the jury that when she

was a prosecutor, she did not "automatically assume people were

guilty” and therefore would not have filed charges in a case if she

"didn't think that there was enough evidence to get a conviction.”

I believe these statements may well have been understood by the

jury as an indication that the judge had a predetermined belief of

Defendant's guilt, and the statements therefore constituted an

improper judicial expression of support for the State's case. Such

statements place the imprimatur of the court on the government's

case and, in my view, communicate to the jury that they should

trust the State's position rather than their own judgment of the

evidence. In addition, I am concerned that the trial judge's

recollection to the jury that a defense attorney attempted to remove

her from the jury panel in the case for which she was called to jury

duty may have indicated some displeasure with or distrust of

defense attorneys in general.

¶49 Defendant did not object when the comments were made

and therefore did not preserve his challenge to the trial court's

comments. Accordingly, to prevail on appeal, Defendant must

demonstrate that the trial court committed plain error or that he

received ineffective assistance of counsel. State v. Low, 2008 UT 58,

¶ 31, 192 P.3d 867. And under either theory, Defendant must

demonstrate that he was prejudiced by the trial judge's improper

remarks. State v. Litherland, 2000 UT 76, ¶ 31 n.14, 12 P.3d 92. In

examining the record and evaluating the trial judge's remarks in

State v. Fouse

20120003-CA 21 2014 UT App 29

context, I would conclude that Defendant was not prejudiced by

the trial judge's comments and that reversal is not warranted. After

empaneling the jury, the court instructed the jury that "the fact that

the defendant is charged with a crime is not evidence of guilt” and

that it must render a verdict based only on its consideration of the

evidence. The court appropriately explained what the jury should

consider as evidence, and explained that it should not consider the

remarks of counsel or any perceived opinions of the court as

evidence. At the close of trial, the trial court instructed the jury to

carefully consider "all of the evidence in this case” to determine if

the State had proven Defendant's guilt beyond a reasonable doubt

for each count. Finally, the jury was instructed to reach a verdict

based upon its "common memory,” "common understanding,” and

"common sense” and that the jurors' verdicts "must be [their]

own.” There is nothing in the record to indicate that the jury did

not follow these instructions in assessing the charges against

Defendant. See State v. Harmon, 956 P.2d 262, 271–73 (Utah 1998);

State v. Nelson, 2011 UT App 107, ¶ 4, 253 P.3d 1094.

¶50 Under these circumstances, I conclude that any error

committed by the trial court was harmless because any prejudice

that may have inured to Defendant as a result of the judge's

comments was alleviated by the trial court's instructions to the

jury. Accordingly, I concur in the result on this point.

¶51 Because I join the majority in concluding that any error in

the trial court's response to the jury's question was harmless, supra

¶ 40, I must also consider whether the cumulative effect of these

errors deprived Defendant of a fair trial. State v. Dunn, 850 P.2d

1201, 1229 (Utah 1993). However, even considering the cumulative

effect of these errors, my confidence in the jury's verdict is not

undermined. I therefore join the majority in affirming Defendant's

convictions.

See above