The opinion
2025 UT App 31
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
THOMAS DEAN BROWN JR.,
Appellant.
Opinion
No. 20220799-CA
Filed March 6, 2025
Third District Court, West Jordan Department
The Honorable James D. Gardner
No. 211909220
Andrea J. Garland, Tyler Needham, and Darnell
Crandall, Attorneys for Appellant
Derek E. Brown and Christopher A. Bates,
Attorneys for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.
TENNEY, Judge:
¶1 A jury convicted Thomas Brown of aggravated assault.
Brown now challenges his conviction, arguing that (1) there was
insufficient evidence to support the conviction; (2) the district
court erred in admitting evidence that Brown now claims was
expert testimony; and (3) the district court violated his
constitutional rights by requiring him to acknowledge, at
sentencing, that he could no longer possess a firearm. For the
reasons set forth below, we disagree with each of Brown’s
arguments. We accordingly affirm his conviction and reject his
challenge relating to the firearm restriction.
State v. Brown
BACKGROUND 1
¶2 In July 2021, Brown and his girlfriend (Girlfriend) had been
dating for four years and living together for two when they
traveled to Utah for a family reunion. Before returning to their
home in Arizona, the couple stopped in Salt Lake City to get
Girlfriend’s car fixed. The issues with Girlfriend’s car turned out
to be worse than anticipated, and they remained in Salt Lake City
for about a month. While there, Brown and Girlfriend stayed in
an apartment at the back of Girlfriend’s father’s boxing gym.
Girlfriend’s brother lived in an apartment next door to the gym.
¶3 On August 25, 2021, after the car was finally fixed,
Girlfriend began preparing to return to Arizona. The relationship
between Girlfriend and Brown had “not always [been] good in
general,” and they had argued earlier that day. That afternoon,
Girlfriend approached Brown, who was in the bedroom of the
apartment, and let him know that she wanted to leave to go back
to Arizona in about 30 minutes. When she returned to the
bedroom a short time later, Girlfriend found Brown lying on the
bed with a handgun on his chest and his finger on the trigger.
Girlfriend stood in the doorway and asked Brown if he was ready
to go. Brown responded, “Don’t come any further.” Girlfriend
later testified that when Brown said this, he seemed “methodical”
and had a “very serious tone.”
¶4 Brown then lifted the gun off his chest and began
“moving” it “towards [Girlfriend’s] direction.” As he did, Brown
said to her, “Who’s going to die first?” Girlfriend felt an “urgency
to immediately leave” and had “great concern” for her safety. She
1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Cesspooch, 2024 UT App 15, n.1, 544 P.3d 1046 (quotation
simplified), cert. denied, 550 P.3d 994 (Utah 2024).
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State v. Brown
left “as quickly as [she] could,” and she was able to do so before
the gun was directly pointed at her. As she was walking away,
Girlfriend said, “I’m calling the police,” to which Brown
responded, “Go ahead.” Girlfriend went to her brother’s
apartment and let him know what was going on, and her brother
then called the police.
¶5 When officers arrived at the scene, they attempted to
communicate with Brown using a bullhorn. After receiving no
response for a couple of hours, a SWAT team used an explosive
charge to blow out the bedroom window. At that point, Brown
exited the building and was taken into custody. Acting pursuant
to a search warrant, officers entered the apartment. There, officers
found a gun on the floor of the bedroom (though it had no bullets
in it), and they also found a backpack that contained Brown’s
identification, his credit cards, and some bullets.
¶6 Brown was taken to a police station and interviewed by a
detective (Detective). In his interview, Brown denied saying
“Who’s going to die first?” He also said that he did not remember
Girlfriend walking into the room. But Brown admitted that his
gun was laying on his chest, and he confirmed that it was
unloaded.
¶7 Brown was arrested after the interview, and he was later
charged with one count of aggravated assault, a third-degree
felony. 2 The case went to trial, where Girlfriend testified about the
events described above. While Girlfriend was describing the
moments in which Brown moved the gun in her direction,
Girlfriend repeatedly claimed that Brown’s finger was on the
trigger.
2. Brown was also charged with one count of threat of violence, a
class B misdemeanor, but that charge was dismissed on the State’s
motion at the outset of trial.
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State v. Brown
¶8 As part of its case, the State also called Detective, who, in
addition to interviewing Brown, had interviewed Girlfriend
shortly after the incident. In his direct examination, Detective
recounted Brown’s statements as described above. During cross-
examination, Brown’s counsel elicited testimony from Detective
that Girlfriend had not told Detective, in her interview, that
Brown’s finger was on the trigger. During the State’s redirect, the
prosecutor asked, “[A]s far as whether or not his finger was on the
trigger, is that something that you specifically asked [Girlfriend]
about?” Detective responded, “No, I did not.” The prosecutor
then asked, “When you are interviewing someone, how do you
interview them?” As part of his response to that question,
Detective observed that he “wouldn’t specifically ask that because
most people involved in a situation like that are not concentrating
on whether somebody’s finger is on the trigger.” Continuing,
Detective said that “it takes a second for somebody to move their
finger off the side rail of a handgun into the trigger and cause that
to go off.” Brown’s counsel did not object to this answer.
¶9 At the end of the State’s case, defense counsel moved for a
directed verdict, arguing, in part, that there was not “enough
evidence that’s been presented in this trial that would warrant
sending this case to the jury for a decision.” The court denied the
motion. Both parties then rested (the defense did not put on any
witnesses in its own case), and after deliberations, the jury found
Brown guilty of aggravated assault.
¶10 At the sentencing hearing, the court informed Brown that
due to his conviction, and pursuant to Utah Code section 76-10-
503, he was now a restricted person and would be subject to
criminal penalties if he possessed a firearm. Pursuant to section
76-10-503.1(4), the court then required Brown to sign a written
acknowledgment in which he confirmed that he understood that
he could no longer possess a firearm. Without objection, Brown
signed that acknowledgment in open court. The court then
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State v. Brown
sentenced Brown to prison, suspended that sentence, and placed
Brown on probation.
ISSUES AND STANDARDS OF REVIEW
¶11 On appeal, Brown first argues that there was insufficient
evidence to support his conviction for aggravated assault. We
understand this to be a challenge to the denial of Brown’s motion
for a directed verdict. While the State contends that this motion
was too vague to have preserved this challenge, for the reasons
set forth below, we choose to address the claim on its merits. In
doing so, “we will uphold the trial court’s decision if, upon
reviewing the evidence and all inferences that can be reasonably
drawn from it, we conclude that some evidence exists from which
a reasonable jury could find that the elements of the crime had
been proven beyond a reasonable doubt.” State v. Mottaghian, 2022
UT App 8, ¶ 32, 504 P.3d 773 (quotation simplified).
¶12 Brown raises two additional issues that he concedes are
unpreserved. Brown argues that the district court erred by not
preventing Detective from testifying about the common
responses of persons who have firearms pointed at them. Brown
also argues that the court erred by requiring him to sign an
acknowledgment at the sentencing hearing stating that he knew
he was now subject to a firearm restriction. Because these issues
were not preserved, Brown asks us to review both of them for
plain error. “To demonstrate plain error, a defendant must
establish that (i) an error exists; (ii) the error should have been
obvious to the trial court; and (iii) the error is harmful.” State v.
Carrera, 2022 UT App 100, ¶ 22, 517 P.3d 440 (quotation
simplified). 3
3. Brown also raises a fourth issue, but we can briefly dispense
with it here. Brown argues that the district court erred in not
(continued…)
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State v. Brown
ANALYSIS
I. Insufficiency of the Evidence
¶13 At the close of the State’s case, defense counsel made a
motion for a directed verdict, arguing that there was not enough
evidence to “warrant sending this case to the jury for a decision,”
but the district court denied the motion. On appeal, Brown again
argues that there was insufficient evidence to support his
conviction.
¶14 As an initial matter, we note that the State has argued that
Brown’s directed verdict motion was too vague to have properly
preserved the particular sufficiency challenges he now makes on
appeal. Brown disputes this. But we have no need to resolve this
dispute. Under our precedent, “if the merits of a claim can easily
be resolved in favor of the party asserting that the claim was not
suppressing the evidence obtained during the search of the
apartment because, according to Brown, the search warrant listed
a different address than the one where Brown and Girlfriend were
actually staying. But the search warrant is not included in the
record, so we have no means of assessing the veracity of Brown’s
claim. We have held that “the appellant has the burden of
providing the reviewing court with an adequate record on appeal
to prove his allegations.” Call v. City of West Jordan, 788 P.2d 1049,
1052 (Utah Ct. App. 1990). “When crucial matters are not included
in the record, the missing portions are presumed to support the
action of the trial court.” State v. Chettero, 2013 UT 9, ¶ 32, 297 P.3d
582 (quotation simplified). In other words, “when an appellant
fails to provide an adequate record on appeal, we presume the
regularity of the proceedings below.” State v. Pritchett, 2003 UT 24,
¶ 13, 69 P.3d 1278. On this record, we have no basis for concluding
that the alleged discrepancy actually occurred, much less that it
provided a basis for suppressing any evidence that mattered to
the outcome of this case. We decline to reverse on this basis.
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State v. Brown
preserved, we readily may opt to do so without addressing
preservation.” State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415
(emphasis omitted). This is so here. 4
¶15 To prevail on an insufficiency of the evidence claim, a
defendant “must show that, when viewed in the light most
favorable to the State, no evidence existed from which a reasonable
jury could find beyond a reasonable doubt that the defendant
committed the crime.” State v. Johnson, 2022 UT 14, ¶ 18, 508 P.3d
100 (emphasis in original, quotation otherwise simplified). If even
“some evidence exists from which a reasonable jury could find
that the elements of the crime had been proven,” the appellate
court will not reverse. State v. Stricklan, 2020 UT 65, ¶ 30, 477 P.3d
1251 (quotation simplified).
¶16 Brown was charged with aggravated assault. A person
commits aggravated assault, in relevant part, if he or she uses a
“dangerous weapon” and intentionally, knowingly, or recklessly
4. Our supreme court has repeatedly held that a defendant must
preserve an insufficiency of the evidence argument. See, e.g., State
v. Prater, 2017 UT 13, ¶ 27, 392 P.3d 398; State v. Honie, 2002 UT 4,
¶ 44, 57 P.3d 977; State v. Holgate, 2000 UT 74, ¶ 16, 10 P.3d 346. In
a lengthy section of his appellate brief, Brown asks us to
“overrule” these cases, arguing that they violate his
constitutionally guaranteed right to an appeal. If this section was
meant to preserve this argument for possible review by the
supreme court, that task has been amply accomplished. But as a
jurisprudential matter, this court has no authority to overrule the
supreme court. See, e.g., In re G.D., 2021 UT 19, ¶ 67, 491 P.3d 867
(explaining that because the court of appeals is “bound by” the
supreme court’s precedents, a request for the court of appeals “to
overturn” supreme court precedent would be “futile”). In any
event, as noted above, we ultimately do not decide Brown’s
sufficiency challenge on preservation grounds, instead rejecting
his various arguments on their merits.
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State v. Brown
“makes a threat, accompanied by a show of immediate force or
violence, to do bodily injury to another.” Utah Code § 76-5-
103(2)(a)(ii), (b)(i)(A). 5
¶17 On appeal, Brown argues that there was insufficient
evidence of “a threat, accompanied by a show of immediate force
or violence.” Id. § 76-5-103(2)(a)(ii). We recently explained that for
purposes of this statute, “a threat is the expression of an intention
to inflict injury on another through conduct or words.” State v.
Graydon, 2023 UT App 4, ¶ 37, 524 P.3d 1034 (quotation
simplified), cert. denied, 531 P.3d 731 (Utah 2023). And we further
agreed that the “show of immediate force” element can include a
“display of one’s power, influence or capability to cause harm,
meant to act as a warning or deterrent to others.” Id. (quotation
simplified). With these definitions in mind, we then held that
there was sufficient evidence to support an aggravated assault
conviction there, where the evidence showed that, after engaging
in an earlier confrontation that resulted in physical blows, the
defendant had “pointed a handgun in [the victim’s] general
direction.” Id. ¶ 39.
¶18 There was similar evidence here. As noted, Girlfriend
testified that she and Brown had argued earlier that day, and she
further testified that when she approached Brown in the
afternoon to let him know that she’d like to leave soon, Brown
raised a gun, began “moving” it “towards [her] direction,” and
said, “Who’s going to die first?” Given the deferential standard of
review, we conclude that pointing a gun in a person’s general
direction while making a threatening comment is at least some
evidence from which a jury could find that the person had made
5. The aggravated assault statute has been amended since Brown’s
trial, but because there were no substantive changes to the
elements in question, we cite the current version for convenience.
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State v. Brown
a “threat, accompanied by a show of immediate force or violence.”
Utah Code § 76-5-103(2)(a)(ii).
¶19 Pushing back, Brown first claims that there was nothing
“immediate” about the threat because there was, in his view,
insufficient evidence to show that his finger was on the trigger
when he moved the gun in Girlfriend’s direction. Although
Girlfriend specifically testified at trial that Brown’s finger was on
the trigger, Brown claims that this testimony was unreliable. In
support of that claim, Brown points to testimony indicating that
Girlfriend’s vision wasn’t great and that she wasn’t wearing
glasses at the time of the incident, and he further emphasizes the
fact that Girlfriend didn’t tell Detective in her interview that
Brown’s finger had been on the trigger.
¶20 But we see no basis for concluding that this potential
problem somehow required (or even allowed) the district court to
grant the directed verdict motion. As noted, we held in Graydon
that there was enough evidence to support an aggravated assault
conviction where the defendant pointed a handgun in the victim’s
“general direction,” and we made no mention of whether the
defendant’s finger was on the trigger. 2023 UT App 4, ¶ 39. And
we see no basis for now imposing this as a requirement to support
aggravated assault convictions moving forward. After all, as
explained, the statute’s “show of immediate force” element can
include a “display of one’s power, influence or capability to cause
harm, meant to act as a warning or deterrent to others.” Id. ¶ 37
(quotation simplified). We have no difficulty concluding that a
jury could find that pointing a gun in someone’s direction can
constitute a display of the power or capability to cause harm, even
if the person’s finger wasn’t on the trigger at that moment but was
instead mere inches or even millimeters away on some other part
of the gun. After all, the gun itself is the instrumentality by which
the person could conceivably harm the other. By pointing it in
such a manner, the person is certainly displaying the capability of
harming the other, particularly given that it would not take much
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State v. Brown
effort or time, if desired, to move a finger to the trigger and then
fire. Brown’s contrary argument is meritless.
¶21 Brown next claims that there was nothing “immediate”
about any threat that he posed in this case because Girlfriend told
Detective in her interview that “she didn’t feel any immediate
threat.” As a related matter, he also points to testimony at trial
indicating that Girlfriend was able to “grab[] some things” before
walking (and not running) away, which Brown contends is “a
response consistent with a perceived non-immediate threat.”
¶22 The statutory element at issue is satisfied if the defendant
“makes a threat, accompanied by a show of immediate force.”
Utah Code § 76-5-103(2)(a)(ii). But there’s no additional statutory
requirement that the victim subjectively perceive it as a threat or
state that he or she actually felt threatened, Brown points to no
case that interpreted this statute as implicitly requiring a
subjective perception of threat as an additional element, and we’re
aware of no case imposing such a requirement either. And while
we certainly agree that there must be some limits on the kinds of
actions that could constitute a “threat,” we’ve previously held in
an unpublished decision that an action can satisfy this element if
a “reasonable person” could believe that the defendant intended
to use the force in question. In re O.R., 2007 UT App 307U, para. 3
(per curiam). A reasonable person could certainly believe that, by
making a threatening statement and then pointing a gun in
Girlfriend’s direction, Brown had made such a threat.
¶23 In any event, even if there were such an implicit subjective-
perception requirement (which, again, we do not decide),
Girlfriend testified at trial that when Brown began raising the gun,
she felt the “urgency to immediately leave.” And she further
testified that she felt “great concern for [her] safety.” To the extent
that her actions at the scene (namely, calmly walking away) or her
subsequent statements to Detective seemed to conflict with her
trial testimony, that created a question for the jury about how
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State v. Brown
much weight to give that testimony. But as we’ve explained, all
that was required to survive the directed verdict motion was
“some evidence” from which the jury could find that the elements
of the crime had been proven, Stricklan, 2020 UT 65, ¶ 30
(quotation simplified), and the testimony from Girlfriend that she
did feel threatened was at least some evidence. We therefore see
no evidentiary infirmity here that required the district court to
grant the directed verdict motion.
¶24 Finally, Brown points to several discrepancies in
Girlfriend’s testimony about various details surrounding the
events in question, such as what color of shorts Brown was
wearing on that day and whether Girlfriend managed to grab her
purse before she left the apartment.
¶25 But we need not wade into the particulars of these claims.
Each of them turns in some measure on how much weight should
have been given to Girlfriend’s testimony. But “any consideration
of discrepancies in testimony [is] in the sole province of the jury.”
State v. Bradley, 2002 UT App 348, ¶ 55, 57 P.3d 1139. And even
where a witness has given somewhat conflicting accounts, “the
question of which version” of a witness’s story is “more credible
is the type of question we routinely require juries to answer.” State
v. Cecala, 2021 UT App 141, ¶ 29, 502 P.3d 790 (quotation
simplified). Here, defense counsel highlighted these various
discrepancies for the jury, and yet the jury chose to convict Brown
anyway. We owe deference to that decision, and we therefore see
no basis for overturning Brown’s conviction as a result of any of
the identified discrepancies. 6
6. In what’s sometimes referred to as a “Robbins claim,” a
“defendant asks the court to disregard a particular witness’s
testimony as ‘inherently improbable’ when determining whether
there is sufficient evidence for a conviction.” State v. Lewis, 2020
(continued…)
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State v. Brown
II. Detective’s Testimony
¶26 In his cross-examination of Detective, defense counsel
elicited testimony that Girlfriend had not told Detective during
her interview that Brown’s finger was on the trigger. In response
to a question from the prosecutor during redirect, Detective
observed that he “wouldn’t specifically ask that because most
people involved in a situation like that are not concentrating on
whether somebody’s finger is on the trigger.” Detective also said
that “it takes a second for somebody to move their finger off the
side rail of a handgun into the trigger and cause that to go off.”
Brown’s counsel did not object to this testimony.
¶27 On appeal, Brown argues that this testimony qualified as
expert testimony under rule 702 of the Utah Rules of Evidence,
and he then argues that the testimony was inadmissible because
the testimony wasn’t sufficiently reliable. Separate from his expert
testimony claim, Brown argues that this testimony should have
been excluded under rule 403. Brown acknowledges, however,
that he did not object on either basis below. As a result, he asks us
UT App 132, ¶ 45 n.5, 475 P.3d 956; see also State v. Robbins, 2009
UT 23, 210 P.3d 288. While Brown cites Robbins in passing in his
brief, he does not specifically make, much less adequately
develop, a Robbins argument. In any event, this “doctrine is not
satisfied by generalized concerns about a witness’s credibility,”
nor is it “satisfied where the appellant raises garden-variety
credibility questions, such as which witness to believe, or which
version of a witness’s conflicting account to believe.” In re S.M.,
2024 UT App 135, ¶ 33, 557 P.3d 649 (quotation simplified). While
Brown has pointed to some discrepancies in Girlfriend’s
testimony, he points to nothing that would rise to the level of
satisfying this standard. We therefore see no basis for
disregarding Girlfriend’s testimony as a whole, instead
concluding that the deficiencies identified by Brown were
appropriately left for the jury to consider.
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State v. Brown
to reverse for plain error. To demonstrate plain error, Brown
“must establish that (i) an error exists; (ii) the error should have
been obvious to the trial court; and (iii) the error is harmful.” State
v. Carrera, 2022 UT App 100, ¶ 22, 517 P.3d 440 (quotation
simplified). Notably, we need not address the error or obvious
error prongs of this test if we conclude that Brown has not
established prejudice. See State v. Cesspooch, 2024 UT App 15, ¶ 9,
544 P.3d 1046 (“If any one of these requirements is not met, plain
error is not established.” (quotation simplified)), cert. denied, 550
P.3d 994 (Utah 2024). This is so here.
¶28 To show prejudice for plain error purposes, Brown must
demonstrate that “there is a reasonable probability that, but for
the error, the result of the proceeding would have been different.”
State v. Norton, 2021 UT 02, ¶ 101, 481 P.3d 445 (quotation
simplified). When assessing this claim, we “consider the totality
of the evidence before the judge or jury, as well as the
circumstances of the case as a whole.” State v. Alarid, 2022 UT App
84, ¶ 47, 514 P.3d 610 (quotation simplified). And we further
consider the “counterfactual scenarios,” including “what would
have happened but for” the claimed error. Id. ¶ 51 (quotation
simplified). 7
¶29 Here, the exchange at issue was directed at the credibility
of Girlfriend’s claim that Brown’s finger was on the trigger when
Brown pointed the gun in her direction. As explained above,
however, we conclude that this was not an element of the offense.
Instead, the combination of Brown’s verbal threat and pointing
the gun in her direction was enough to support the conviction. As
a result, the question of whether Brown’s finger was on the trigger
was immaterial to the ultimate question before the jury. Thus,
7. State v. Alarid was an ineffective assistance of counsel case, 2022
UT App 84, ¶ 47, 514 P.3d 610, but the “prejudice analysis is the
same for claims of plain error and ineffective assistance of
counsel.” State v. Norton, 2021 UT 02, ¶ 101, 481 P.3d 445.
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State v. Brown
even if it were true that this testimony should have been stricken,
we see no reasonable basis for concluding that Brown would have
received a more favorable verdict as a result. 8
8. As part of this claim, Brown also suggests that Detective’s
testimony constituted improper bolstering of Girlfriend’s
testimony. The bolstering doctrine finds its footing in rule 608(a)
of the Utah Rules of Evidence, which “permits testimony
concerning a witness’s general character or reputation for
truthfulness but prohibits any testimony as to a witness’s
truthfulness on a particular occasion.” State v. Nunes, 2020 UT
App 145, ¶ 22, 476 P.3d 172 (quotation simplified). Yet Brown
does not cite rule 608(a) in his brief, much less explain how this
testimony violated its terms.
In any event, we don’t read Detective’s testimony as
having obviously violated that rule, which is what would be
required to establish plain error. After all, in the testimony in
question, Detective did not offer any direct opinion about
Girlfriend’s truthfulness. Instead, what Detective testified about
were his reasons for not asking her any questions about whether
she saw Brown’s finger on the trigger. In this sense, he was
indirectly professing to be agnostic about the issue. Indeed, if
anything, by testifying that “most people involved in a situation
like that are not concentrating on whether somebody’s finger is
on the trigger,” Detective may have actually undermined
Girlfriend’s credibility on this point by calling into question
whether she was actually focused on Brown’s finger when she
saw him pointing a gun in her direction. Thus, on the state of this
record and this briefing, we see no basis for concluding that
Detective’s testimony was obviously impermissible bolstering.
Brown’s claims relating to Detective’s testimony therefore fail.
Finally, we note that Brown asks us to apply the
cumulative error doctrine to his claims. “Cumulative error refers
to a number of errors which prejudice a defendant’s right to a fair
(continued…)
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State v. Brown
III. Firearm Restriction Acknowledgment
¶30 At sentencing, the district court required Brown to sign an
acknowledgment that he could no longer possess a firearm, and it
did so pursuant to Utah Code sections 76-10-503 (which sets forth
the restricted person scheme) and 76-10-503.1(4) (which requires
district courts to ask defendants to sign such an acknowledgment
at sentencing hearings). 9 Without objection, Brown signed the
acknowledgment.
¶31 Brown now argues that it was plain error for the district
court to require him to sign the acknowledgment. In Brown’s
view, this was unconstitutional because the underlying firearm
restriction itself violates his Second Amendment rights. In the
alternative, and based on the same alleged constitutional
violation, Brown asks this court to remand the case so that the
district court can correct his sentence pursuant to rule 22(e)(2) of
the Utah Rules of Criminal Procedure.
trial.” State v. Martinez-Castellanos, 2018 UT 46, ¶ 39, 428 P.3d 1038
(quotation simplified). Under that doctrine, “we will reverse a
conviction . . . when the cumulative effect of the several errors
undermines our confidence that a fair trial was had.” State v.
Ringstad, 2018 UT App 66, ¶ 33, 424 P.3d 1052 (quotation
simplified). As explained above, we see no error with respect to
the alleged insufficiency of the evidence. And while we have
rejected one portion of Brown’s claim relating to Detective’s
testimony based on a lack of prejudice, there is nothing else with
which to accumulate prejudice. This claim therefore fails.
9. As with the aggravated assault statute, these statutes have been
amended since Brown’s sentencing, but because those
amendments are not material to the issue before us, we cite the
current versions for convenience.
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State v. Brown
A. Plain Error
¶32 “When a defendant raises an unpreserved constitutional
claim—even one serious enough to constitute structural error—
the claim is subject to plain error review under which the
defendant bears the burden to show harm.” State v. Samudio, 2023
UT App 116, ¶ 28, 537 P.3d 674 (quotation simplified), cert. denied,
544 P.3d 457 (Utah 2024). As discussed, one of the requirements
of plain error is that the defendant must show that there was
obvious error. See Carrera, 2022 UT App 100, ¶ 22. “To establish
that the error should have been obvious to the trial court, the
appellant must show that the law governing the error was clear at
the time the alleged error was made.” State v. Roman, 2015 UT App
183, ¶ 9, 356 P.3d 185 (quotation simplified). Consequently, “an
error is not obvious if there is no settled appellate law to guide the
trial court.” Id. (quotation simplified).
¶33 In his brief, Brown relies on New York State Rifle & Pistol
Ass’n v. Bruen, wherein the United States Supreme Court held that
a New York statute requiring individuals to prove “proper cause”
to “have and carry” a concealed firearm before obtaining a license
was unconstitutional. 597 U.S. 1, 12, 39 (2022) (quotation
simplified). The Supreme Court held that “the Second and
Fourteenth Amendments protect an individual’s right to carry a
handgun for self-defense outside the home.” Id. at 8. The Supreme
Court explained that “when the Second Amendment’s plain text
covers an individual’s conduct, the Constitution presumptively
protects that conduct.” Id. at 17. And the Supreme Court further
stated that to “justify” any regulation of those rights, the
“government must demonstrate that the regulation is consistent
with this Nation’s historical tradition of firearm regulation.” Id.
With Bruen as his backing, Brown contends that “there is no
historical tradition of mandatory disarmament of restricted
persons as contemplated by Utah statutes.” From this, he argues
that it was unconstitutional to require him to acknowledge that he
can no longer possess a firearm.
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State v. Brown
¶34 But the problem for Brown is that, because this issue comes
before us on plain error review, Brown must show that this
acknowledgment (and, by extension, the underlying restriction)
are obviously unconstitutional. He has not carried this burden.
¶35 Bruen was issued in June 2022, and Brown was sentenced
in August 2022. Even with Bruen as precedent, lower courts were
soon divided on the question of whether firearm restrictions
placed on felons were constitutional. Most notably, various
federal circuits were repeatedly asked to decide whether
provisions from a federal statute that bans possession of a firearm
by felons (namely, 18 U.S.C. § 922(g)), were constitutional. The
Third and Fifth Circuits held that some portions of that statute
were now unconstitutional. See Range v. Attorney Gen., 69 F.4th 96,
99, 106 (3d Cir. 2023) (en banc) (holding that 18 U.S.C. section
922(g)(1) was unconstitutional as applied to a defendant with a
non-violent misdemeanor conviction), vacated sub nom. Garland v.
Range, 144 S. Ct. 2706 (2024); United States v. Daniels, 77 F.4th 337,
355 (5th Cir. 2023) (holding that 18 U.S.C. section 922(g)(3) was
unconstitutional as applied to a user of a controlled substance),
vacated, 144 S. Ct. 2707 (2024). But the Eighth, Tenth, and Eleventh
Circuits upheld portions of that same statute against the same
kind of constitutional challenge. See United States v. Sitladeen, 64
F.4th 978, 987 (8th Cir. 2023) (addressing 18 U.S.C. section
922(g)(5), the subsection barring certain noncitizens from
possessing a firearm); Vincent v. Garland, 80 F.4th 1197, 1202 (10th
Cir. 2023) (addressing 18 U.S.C. section 922(g)(1)), vacated, 144 S.
Ct. 2708 (2024); United States v. Dubois, 94 F.4th 1284, 1293 (11th
Cir. 2024) (same), vacated, No. 24-5744, 2025 WL 76413 (U.S. Jan.
13, 2025).
¶36 Perhaps more importantly, just last term, the United States
Supreme Court issued United States v. Rahimi, 602 U.S. 680, 700
(2024), wherein it upheld the constitutionality of 18 U.S.C. section
922(g)(8), a statute prohibiting firearm possession by a person
subject to a domestic violence restraining order. After conducting
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State v. Brown
a historical analysis of firearm restrictions in the country, the
Court determined that “[o]ur tradition of firearm regulation
allows the Government to disarm individuals who present a
credible threat to the physical safety of others,” and it further held
that “[a]n individual found by a court to pose a credible threat to
the physical safety of another may be temporarily disarmed
consistent with the Second Amendment.” Id. at 700, 702.
¶37 Given the split in authority that emerged within a short
time of Brown’s sentencing, as well as the Supreme Court’s
decision in Rahimi last term to uphold at least one firearm
restriction, it’s not obvious to us that any restriction that attached
to Brown as a result of this conviction is unconstitutional. As a
result, it’s likewise not obvious to us that it was unconstitutional
to ask him to acknowledge his restricted status at sentencing. We
therefore reject this unpreserved claim for lack of obvious error.
B. Rule 22(e)
¶38 In his opening brief, Brown next argued that, because he
had “proved” in his plain error argument that “Utah’s firearm
restriction statutes are unconstitutional,” this court should
remand the case pursuant to rule 22(e)(2) of the Utah Rules of
Criminal Procedure to allow the district court to correct his
sentence. Under that rule, a district court
must correct the sentence of a defendant who can
prove that the sentence is unconstitutional under a
rule established or ruling issued by the United
States Supreme Court, the Utah Supreme Court, or
the Utah Court of Appeals after sentence was imposed,
and the rule or ruling was not dictated by precedent
existing at the time the defendant’s conviction or
sentence became final.
Utah R. Crim. P. 22(e)(2) (emphasis added).
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State v. Brown
¶39 But Bruen was not issued “after sentence was imposed.” Id.
Instead, as noted, Bruen was issued before Brown’s sentence was
imposed, and Brown points to no decision from the Utah Supreme
Court or this court that was issued after his sentence was imposed
that establishes that the firearm restriction or the
acknowledgment statute were unconstitutional. This claim
accordingly fails. 10
CONCLUSION
¶40 For the reasons set forth above, we conclude that there was
sufficient evidence to support Brown’s conviction for aggravated
assault, and we further conclude that Brown has not shown that
the district court plainly erred in not striking Detective’s
testimony or in requiring Brown to acknowledge his status as a
restricted person at sentencing.
¶41 Brown’s conviction and sentence are affirmed.
10. After the State pointed out in its responsive brief that rule
22(e)(2) is, on its face, inapplicable to this case, Brown asserted in
his reply brief that “[t]o the degree that rule 22(e)(2) does not
apply, rule 22(e)(1)(F) applies.” Rule 22(e)(1)(F) states that a court
“must correct a sentence when the sentence imposed . . . omits a
condition required by statute or includes a condition prohibited
by statute.” Utah R. Crim. P. 22(e)(1)(F). But this is a new
argument involving an entirely different provision of the rule.
“Appellants are not permitted to raise matters for the first time in
a reply brief,” and “when a party fails to raise and argue an issue
on appeal, or raises it for the first time in a reply brief, that issue
is waived and will typically not be addressed by the appellate
court.” Chard v. Chard, 2019 UT App 209, ¶ 34, 456 P.3d 776
(quotation simplified). We decline to address the argument.
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