State v. Silva

This opinion is subject to revision before final

publication in the Pacific Reporter

2019 UT 36

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Appellee,

v.

LUCIANO GABRIEL SILVA,

Appellant.

No. 20161045

Filed July 23, 2019

On Direct Appeal

Second District, Weber County

The Honorable Ernest W. Jones

No. 151901996

Attorneys:

Sean D. Reyes, Att’y Gen., Jeffrey D. Mann, Asst. Solic. Gen., Salt

Lake City, Branden B. Miles, Letitia J. Toombs, Josh B. Wayment,

Ogden, for appellee

Cherise Bacalski, Orem, Emily Adams, Bountiful, for appellant

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court,

in which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE,

and JUSTICE PETERSEN joined.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 Luciano Silva was convicted of murder after shooting and

killing his roommate’s friend. He challenges his conviction on this

appeal, asserting that the trial court committed reversible error when

it (1) precluded him from arguing perfect self-defense and

(2) refused to declare a mistrial after the prosecutor asked Silva to

demonstrate the shooting using a facsimile gun. We disagree. Any

error the trial court committed when it refused to allow a claim of

perfect self-defense was harmless. And though we are troubled by

aspects of the demonstration directed by the prosecutor, we cannot

STATE v. SILVA

Opinion of the Court

say that the trial court abused its discretion when it denied Silva’s

motion for a mistrial. We therefore affirm the conviction.

I

¶2 On the night of the shooting, Silva returned home to his

trailer to find his roommate, Fabricio, with a friend, Horacio. Silva

did not know Horacio. But he soon learned that Horacio was

previously a member of the Norteño gang—the same gang Silva

once belonged to.

¶3 Silva offered to buy methamphetamine and share it with

Fabricio and Horacio. He made a phone call and arranged for a drug

delivery. While waiting for the delivery, Horacio listened to music

by the Salineros, a group associated with the Norteños. Silva

questioned Horacio about the music before going to his bedroom.

There he mentioned to Fabricio that he was bothered by the music.

And he cleaned some bullets for his gun—a gun that he had

purchased illegally, allegedly for protection from his former gang.

¶4 Silva eventually learned that the drug delivery had failed.

Undeterred, he decided to walk to another seller’s home. Silva first

asked Fabricio to accompany him. But Fabricio said he wasn’t

interested in going. So Silva asked Horacio to accompany him and

he did. About ten to fifteen minutes later, Silva returned home alone

without any drugs. He claimed that Horacio had left him at some

point during the walk.

¶5 The next morning, Horacio’s body was found with a

gunshot wound to the back of the head. While police were trying to

identify Horacio, Silva and Fabricio went to Walmart to buy some

groceries. On the way there, Silva admitted to Fabricio that he had

shot Horacio in the back of the head. And he explained that he shot

him because he was listening to Norteño music.

¶6 Police eventually identified Horacio using his cell phone.

They also discovered a photo from Horacio’s Facebook account that

showed the license plate of a vehicle registered to Silva’s address. So

an officer was assigned to observe Silva’s trailer.

¶7 Later that day, Silva left his trailer to go pick up his

daughter. He was immediately approached by the police. They

asked if he knew Horacio, and at first he lied. But he eventually

admitted he knew him but not well. And he agreed to go to the

police station for further questioning. At the station, Silva again

concealed the truth in his initial interactions with the police. But he

eventually came clean. He told the police that he and Horacio were

on their way to purchase drugs when Horacio discovered that he

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Opinion of the Court

was carrying a gun. He said that Horacio had asked him if he could

hold the gun, that Silva had handed it over, and that Horacio had

then turned the gun on Silva and asked to see the money that Silva

had brought to purchase drugs. Silva indicated that he had knocked

the gun out of Horacio’s hand, pushed Horacio back, gained control

of the gun, and fired a shot at the back of Horacio’s head. After

shooting Horacio, Silva said he had thrown the gun into a nearby

river and then went home and hid the clothes he was wearing under

his bed.

¶8 When asked about the details of the shooting, Silva admitted

that he knew Horacio was facing away from him when he shot him

and that Horacio was unarmed. But he stated that Horacio was

turning towards him when he shot him. He also told police that he

felt “comfortable” just before the shooting. And he acknowledged

that instead of shooting Horacio he could have ran away or “pointed

the gun at him and walked away.”

¶9 The State charged Silva with first-degree murder, two counts

of obstructing justice (for his efforts to hide the gun and his

clothing), and one count of possession of a firearm by a restricted

person (because Silva is an illegal alien). Before trial, the State moved

pursuant to Utah Code section 76-2-402(2)(a)(ii) to preclude the jury

from considering perfect or imperfect self-defense. That section

prohibits a person from using force in self-defense if the person “is

attempting to commit, committing, or fleeing after the commission

or attempted commission of a felony.” UTAH CODE

§ 76-2-402(2)(a)(ii) (2017).1 The State argued that the felonious

conduct Silva was engaged in when he killed Horacio was

(1) attempted possession of methamphetamine and (2) possession of

a firearm by a restricted person. See id. §§ 58-37-8, 76-10-503(2)(a)

(2014) (defining respectively the crimes of possession of a controlled

substance and possession of a firearm by a restricted person).2 Silva

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1 We cite the 2017 version of the statute, while noting that this

section was amended in 2018, see UTAH CODE § 76-2-402(2)(a)(ii)

(2018), because the incident giving rise to this case occurred in

September 2015.

2 Section 58-37-8 was amended in 2015. Under the amended

statute a first or second conviction of possession of a Schedule I or II

controlled substance constitutes a class A misdemeanor. UTAH CODE

§ 58-37-8(2)(b)(ii) (2015). That amendment, however, did not take

(continued . . .)

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conceded that he was an illegal alien in possession of a firearm. But

he argued that the statute as applied to him unconstitutionally

infringed his right to self-defense. He also argued that the statute

should not apply because he was not attempting to purchase drugs

or fleeing from such an attempt when the shooting occurred. The

trial court rejected both arguments. It ruled that the jury could not

consider perfect self-defense because Silva was “involved in two

felonies at the time of the homicide”—the two identified by the State.

Yet “while [Silva] [was] not entitled to claim ‘perfect’ self-defense,”

the court allowed him to argue “‘imperfect’ self-defense to the jury.”

¶10 At trial, Silva largely retold the narrative he provided to the

police. But his testimony varied in key ways. He testified that he felt

scared, rather than comfortable, just before he shot Horacio. And he

stated that he was not sure whether Horacio was facing towards or

away from him when he shot him. He also testified that he thought

Horacio may have had a weapon at the time he shot him,

contradicting his prior statement. He maintained, however, that

Horacio was turning towards him when he shot him. And he again

conceded that he had other options besides shooting Horacio,

including throwing the gun out of Horacio’s reach or simply running

away.

¶11 During cross-examination, the prosecutor gave Silva a

“facsimile gun” and asked him to “demonstrate exactly how [he]

was holding the gun when [he] shot Horacio.” The prosecutor then

separated himself some distance from Silva, turned away from him,

and asked him if he thought his life was in danger. Silva said no. The

prosecutor repeated this question two more times while slowly

turning towards Silva. And Silva reaffirmed both times that he did

not feel in danger. Silva’s counsel interjected, noting “for the record”

that the prosecutor “had his back turned and then he turned around

forward and then held his hands up.” He also noted the differences

between the courtroom setting and the setting of the shooting—

specifically that they were “in a courtroom . . . with bailiffs, et

cetera.” During re-examination, Silva clarified that he did not feel in

danger during the demonstration because he was in a courtroom; he

misunderstood that the prosecutor was speaking of the night he

killed Horacio.

effect until October 1, 2015, after the incident giving rise to this case.

We accordingly refer to the 2014 version of the statute.

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¶12 Following Silva’s testimony, his trial counsel moved for a

mistrial. Counsel asserted that it was “horrendously prejudicial” for

the jury to see the reenactment and a gun in Silva’s hand and that the

demonstration should have been disallowed under Utah Rule of

Evidence 403. The prosecutor responded that Silva’s “actions [were]

central to the issues of this case.” He further argued that Silva never

denied the fact that he had held a gun or killed Horacio. So “[t]he

fact that he held a plastic gun in court in an effort to aid the jury in

understanding what happened . . . was relevant and not prejudicial.”

The trial court agreed with the prosecutor. It denied the motion for a

mistrial, stating that the demonstration was not “prejudicial at all”

but was rather “central to the whole case.” The jury ultimately

convicted Silva on all counts. He appealed the murder conviction to

this court. We initially transferred the matter to the court of appeals

but later vacated the transfer and recalled the appeal.

II

¶13 On appeal, Silva argues that the trial court committed two

principal errors. He first asserts that the trial court erred when it

prevented him from arguing perfect self-defense. Second, he asserts

that the court abused its discretion when it denied his motion for a

mistrial based on the prosecutor’s gun demonstration.

¶14 We disagree with Silva and thus affirm his conviction. Even

if we assume that the trial court erred when it refused to offer the

perfect self-defense instruction, such error was harmless because it

didn’t result in prejudice to Silva. And though we find aspects of the

prosecutor’s demonstration troubling, we affirm the trial court’s

decision to deny Silva’s motion for a mistrial. Our decision is driven

by the standard of review, the relevancy of the demonstration, the

lack of record evidence, and the opportunities afforded defense

counsel to clarify Silva’s testimony. We advise future attorneys,

however, to proceed cautiously when considering the propriety of a

demonstration like the one here. Requiring a criminal defendant to

hold a facsimile gun is not per se a violation of rule 403 of the Utah

Rules of Evidence. But such a demonstration certainly has the

potential to run afoul of that rule and to trigger a mistrial.

A

¶15 Silva first asserts that the trial court erred in precluding him

from arguing perfect self-defense at trial. The governing statute is

Utah Code section 76-2-402(2)(a)(ii). That statute prohibits a person

from using force in self-defense if the person “is attempting to

commit, committing, or fleeing after the commission or attempted

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Opinion of the Court

commission of a felony.” UTAH CODE § 76-2-402(2)(a)(ii) (2017). The

trial court refused to instruct the jury on perfect self-defense on the

ground that Silva was engaged in two felonious acts at the time he

killed Horacio—attempted possession of methamphetamine under

Utah Code section 58-37-8 and possession of a firearm by a restricted

person under Utah Code section 76-10-503(2)(a).

¶16 Silva challenges the trial court’s refusal to give a perfect

self-defense instruction on three grounds: (1) the statute infringes his

constitutional right to equal protection by foreclosing an allegedly

fundamental right of self-defense for illegal aliens without an

adequate justification; (2) there was insufficient evidence that Silva

was attempting to purchase drugs at the time of the shooting; and

(3) his trial counsel was ineffective in failing to argue that it would

be absurd to interpret the statute to foreclose a right of self-defense

even when there is no connection between the underlying felony and

the act of self-defense.

¶17 These claims are not insubstantial. First, Silva plausibly

asserts that the right of self-defense is “fundamental” and raises

serious questions about the sufficiency of the government’s

justification for foreclosing that right for illegal aliens. On the second

point, Silva raises significant questions about the nature of the

alleged “attempt” to purchase drugs, and whether he was in the

course of committing such a crime when the shooting occurred. And

the third point implicates an important question about the

appropriate standard for assessing ineffective assistance of counsel

claims under Strickland v. Washington, 466 U.S. 668 (1984).

¶18 Silva’s ineffective assistance of counsel claim focuses on his

trial counsel’s failure to seek to limit the reach of Utah Code

section 76-2-402(2)(a)(ii) on the basis of the doctrine of absurdity. In

Silva’s view, trial counsel was ineffective in failing to assert that it

would be absurd to extend the statutory bar to the use of force in

self-defense where there is no causal connection between the

underlying felony and the self-defense statute.3 The State, for its part,

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3 The statute was amended in 2018 to require such a causal

connection. A criminal defendant is now permitted to argue perfect

self-defense where “the use of force is a reasonable response to

factors unrelated to the commission, attempted commission, or

fleeing after the commission of th[e] felony.” UTAH CODE

§ 76-2-402(3)(a)(ii).

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defends the conduct of trial counsel on the ground that there was no

controlling case law in effect at the time of trial that would have

dictated the argument under the doctrine of absurdity. And the State

cites cases from our court and the court of appeals that suggest that

counsel’s representation must be judged by reference only to settled

law in effect at the time of trial.4 Silva responds by challenging the

viability of this line of cases, and noting that they are inconsistent

with binding precedent from the United States Supreme Court.

¶19 We take Silva’s point. A showing of ineffective assistance of

counsel requires proof (1) that trial counsel’s representation “fell

below an objective standard of reasonableness” and (2) that “the

deficient performance prejudiced the defense.” Strickland, 466 U.S. at

687–88. This analysis is conducted under “the presumption that . . .

the challenged action ‘might be considered sound trial strategy.’” Id.

at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). But the

United States Supreme Court has never said that trial counsel is

categorically excused from failure to raise an argument not

supported by existing legal precedent. In fact, the Court has said just

the opposite. In Padilla v. Kentucky, 559 U.S. 356 (2010), the Court

held that an attorney’s representation fell below an objective

standard of reasonableness notwithstanding the fact that no

precedent at that time established that an attorney has a duty to

inform a defendant about the immigration consequences of a plea.

So it cannot be that we judge an attorney’s performance based only

on settled law.

¶20 We thus repudiate the language in our case law limiting our

review of an attorney’s performance to the law in effect at the time of

trial. Ineffective assistance of counsel claims are premised on the

protections provided by the Sixth Amendment of the United States

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4 See State v. Dunn, 850 P.2d 1201, 1228 (Utah 1993) (“[A]

defendant bears the burden of demonstrating why, on the basis of

the law in effect at the time of trial, his or her trial counsel’s

performance was deficient.”); State v. Bruun, 2017 UT App 182, ¶ 68,

405 P.3d 905 (“[C]ounsel is not ineffective for failing to advance a

theory or interpretation of the law which has not yet been settled or

ruled upon by our courts.”); State v. Edgar, 2017 UT App 53, ¶ 10, 397

P.3d 670 (“Counsel ‘cannot be faulted for failing to advance a novel

legal theory which has never been accepted by the pertinent courts.’”

(citation omitted)).

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Constitution. Strickland, 466 U.S. at 685–86.5 The standards for

adjudicating such claims are thus a matter of federal law. And it is

not our prerogative to establish doctrines that contradict binding

precedent from the United States Supreme Court. With this in mind,

we now concede that we were wrong to suggest that we may assess

the reasonableness of defense counsel’s performance only in light of

the law in effect at the time of trial. “The proper measure of attorney

performance remains simply reasonableness under prevailing

professional norms.” Id. at 688.

¶21 The fact that Silva has raised serious claims on the merits is

not alone sufficient to sustain reversal, however. We can assume for

the sake of argument that Silva’s three claims may have merit—that

there may arguably be an equal protection problem with the

statutory bar on an illegal alien’s use of force in self-defense, that

Silva may not have been in the course of attempting to purchase

drugs when he killed Horacio, and that counsel’s performance fell

below an objective standard of reasonableness. Yet even assuming

these errors, we can reverse Silva’s conviction only if the errors are

prejudicial. See State v. Reece, 2015 UT 45, ¶ 21, 349 P.3d 712. And we

are convinced that they are not.

¶22 The prejudice standards implicated here are overlapping but

somewhat different. For preserved constitutional claims—like Silva’s

equal protection claim—the State bears the burden of demonstrating

that the constitutional error was harmless beyond a reasonable

doubt.6 In contrast, for unpreserved constitutional claims—like

Silva’s ineffective assistance of counsel claim—the burden of

demonstrating prejudice rests on the defendant.7 The same goes for

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5 See also Gideon v. Wainwright, 372 U.S. 335, 342–45 (1963)

(incorporating the right to effective assistance of counsel against the

states).

6 See Chapman v. California, 386 U.S. 18, 24 (1967) (“Certainly error,

constitutional error . . . casts on someone other than the person

prejudiced by it a burden to show that it was harmless. . . . [B]efore a

federal constitutional error can be held harmless, the court must be

able to declare a belief that it was harmless beyond a reasonable

doubt.”); State v. Bond, 2015 UT 88, ¶¶ 37–38, 361 P.3d 104

(articulating this same standard).

7 See United States v. Olano, 507 U.S. 725, 734 (1993); Strickland, 466

U.S. at 693–96; Bond, 2015 UT 88, ¶ 46.

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Silva’s insufficiency of the evidence claim—he bears the burden of

demonstrating that this error was prejudicial. See State v. Robertson,

932 P.2d 1219, 1227 (Utah 1997), overruled on other grounds by State v.

Weeks, 2002 UT 98, ¶ 25 n.11, 61 P.3d 1000.

¶23 We conclude that there is a lack of prejudice here under any

of the above standards. The failure to give a perfect self-defense

instruction was harmless under any of the above formulations.

¶24 We begin by emphasizing the substantial overlap between

the defenses of imperfect and perfect self-defense. Imperfect

self-defense is a strict subset of perfect self-defense. So if a theory of

imperfect self-defense is rejected by a jury—as was the case here—it

may logically follow that a theory of perfect self-defense would

likewise be rejected.

¶25 Self-defense is an affirmative defense that justifies “using

force against another when and to the extent that the person

reasonably believes that force . . . is necessary to defend the

person . . . against another person’s imminent use of unlawful force.”

UTAH CODE § 76-2-402(1)(a) (2017). Self-defense may be perfect or

imperfect. Perfect self-defense is a complete justification and bars a

conviction. See id. It applies when a defendant reasonably believes

that unlawful force against him is imminent and he is legally justified

in using force to defend himself. Imperfect self-defense is a partial

justification. It reduces a murder charge to manslaughter when a

defendant reasonably, but mistakenly, believes “that the

circumstances provided a legal justification or excuse” for the use of

deadly force. Id. § 76-5-203(4)(a).

¶26 “[F]or both perfect and imperfect self-defense, the same

basic facts [are] at issue.” State v. Low, 2008 UT 58, ¶ 32, 192 P.3d 867

(second alteration in original) (quoting State v. Spillers, 2007 UT 13,

¶ 23, 152 P.3d 315) (internal quotation marks omitted). Both “require

the defendant to present the same evidence: that the defendant had a

reasonable belief that force was necessary to defend himself.” Id. The

only difference between the two defenses is that a defendant arguing

perfect self-defense must show that the use of deadly force was

legally justifiable under the circumstances. Id.

¶27 The jury here was presented with the theory of imperfect

self-defense. And it rejected that theory. Because the jury rejected the

notion that Silva reasonably but mistakenly believed that deadly force

was necessary, there is a strong argument that the jury likewise

would have rejected the notion that Silva reasonably and correctly

believed that such force was necessary. This argument is bolstered

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Opinion of the Court

when we consider the substantial evidence undermining Silva’s

claim of self-defense. Infra ¶¶ 30–32. In light of this evidence, we

may assume that the trial court erred when it refused to allow Silva

to argue perfect self-defense but nonetheless affirm on the basis of a

conclusion that any such error was harmless.

¶28 Silva challenges this logic. He claims that a reasonable jury

could reject imperfect self-defense but endorse perfect self-defense.

He bases that assertion on alleged confusion about the distinction

between perfect and imperfect self-defense, which in his view was

reflected in the instruction given to the jury in this case.

¶29 We disagree. The line between perfect and imperfect

self-defense is subtle but clear.8 Perfect self-defense requires that a

defendant’s belief that force is necessary be both reasonable and

legally justified. Imperfect self-defense, meanwhile, requires only

that the defendant’s belief be reasonable. The jury instruction in this

case accurately reflected this distinction and correctly explained the

parameters the defense: “Imperfect self-defense . . . applies when the

defendant caused the death of another while incorrectly, but

reasonably, believing that his conduct was justified.” This was an

accurate statement of law. And Silva has identified no basis for a

determination that the jury in this case must have misunderstood the

law of imperfect self-defense.

¶30 Silva’s argument, moreover, runs into a brick wall of

evidence—the evidentiary record at trial. We assess the question of

prejudice in light of all the evidence presented at trial. See Reece, 2015

UT 45, ¶ 40. And here the State presented substantial evidence

confirming Silva’s guilt—and undermining his assertion of imperfect

self-defense. First is Silva’s testimony, which was inconsistent and

undermined his claim of self-defense. Silva initially told police that

he knew Horacio was facing away from him when he shot him. But

at trial he said he was unsure which way Horacio was facing. He

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8 In so stating we do not mean to suggest that the legal lines in

this field are always straightforward. The experienced trial judge in

this case referred to the imperfect self-defense jury instruction as

“the most confusing . . . concept [he’d] ever dealt with.” Hopefully

our opinion in this case will help alleviate some of the confusion. We

also note that the Judicial Council’s Model Utah Jury Instructions

Committee has recently added model instructions on imperfect

self-defense. See MUJI 2d CR 1450–52.

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also told police that he knew Horacio was unarmed. Yet he told the

jury that he was unsure of that fact. Silva claimed at trial that it was

too dark to see which way Horacio was facing. But he claimed that

he could see several other details that night, including the gun

pointed at his chest, which way Horacio’s hat was facing, the gun on

the black asphalt, and the shot in the back of Horacio’s head. And

Silva conceded at trial that he had other options besides shooting

Horacio including throwing the gun out of Horacio’s reach or

running away.

¶31 Silva’s trial testimony is also undermined by the statements

he made to his roommate, Fabricio. He initially told Fabricio that

Horacio left him some time during their walk to purchase drugs. His

story changed the next day when he admitted that he killed Horacio.

But he never claimed to have acted in self-defense. Rather he told

Fabricio that he shot Horacio because Horacio had been listening to

Norteño music.

¶32 The physical evidence further undermines Silva’s claim of

self-defense. Horacio was shot in the back of the head. And the bullet

went straight through, suggesting that Horacio was facing away

from Silva when he was shot, not turning, and thus not in a position

to cause imminent harm to Silva. Nor was there any indication in the

record of a struggle between Silva and Horacio over the gun—no

evidence of any injury to either (other than the fatal shot to Horacio’s

head), or any other basis for the jury to conclude that there was a

struggle. All of this suggests that even if Silva had been allowed to

argue perfect self-defense, the jury likely would have convicted him

of murder anyway.

¶33 Silva proffered a final basis for establishing prejudice during

oral argument to this court. His counsel asserted that the reasonable

belief required for perfect self-defense is different from the

reasonable belief required for imperfect self-defense. And he claimed

that the jury might thus have found in his favor had he been allowed

to present a theory of perfect self-defense. This assertion fails on two

counts. The first problem is one of timing. This argument was raised

for the first time at oral argument, and “[w]e do not address issues

raised for the first time during oral argument.” Porenta v. Porenta,

2017 UT 78, ¶ 33, 416 P.3d 487. The second problem is more

substantive. The argument is premised on a misstatement of our law.

The difference between perfect and imperfect self-defense goes to

legal justification, not the standard of reasonable belief. Imperfect

self-defense requires a “reasonable belief that the circumstances

provided a legal justification or excuse for the conduct although the

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conduct was not legally justifiable or excusable under the existing

circumstances.” UTAH CODE § 76-5-203(4)(a) (emphasis added).

Perfect self-defense similarly requires a “reasonable belief,” but it

also requires that the use of force be legally justifiable under the

circumstances. See id. § 76-2-402 (2017); State v. Low, 2008 UT 58, ¶ 32,

192 P.3d 867. The standard for “reasonable belief” is the same for

both defenses. The difference goes only to whether the acts of

self-defense were “legally justifiable.” And Silva’s last argument

would thus also fail even if we were to reach it.

¶34 For these reasons we decline to reach the merits of Silva’s

arguments regarding his right to assert perfect self-defense. We

conclude that even if he was entitled to a perfect self-defense

instruction, there is no reasonable likelihood that the trial would

have turned out differently if the jury had been instructed on that

defense. The State has demonstrated harmlessness beyond a

reasonable doubt. The alleged errors are thus harmless under any of

the prejudice standards implicated here. See supra ¶ 22.

B

¶35 Silva’s second contention is that the trial court abused its

discretion when it refused to grant a mistrial after the prosecutor

conducted a demonstration using a facsimile gun. We disagree. Our

decision is largely driven by the deferential standard of review. We

note below some concerns we have with such demonstrations and

advise the bench and bar to carefully consider whether such

demonstrations comply with the demands of our rules of evidence.

But we affirm because we conclude that the trial court did not abuse

its discretion in the circumstances of this trial.

¶36 We review the denial of a motion for a mistrial under an

abuse of discretion standard. State v. Vargas, 2001 UT 5, ¶ 44, 20 P.3d

271. And “[w]e will not find such abuse unless ‘the incident so likely

influenced the jury that the defendant cannot be said to have had a

fair trial.’” Id. (citation omitted). Here we find no such abuse of

discretion.

¶37 The demonstration, for starters, had some probative value.

The critical question for the jury to decide was whether Silva

reasonably believed that he was justified in shooting Horacio. And

whether Silva’s belief was reasonable turned, at least in part, on facts

demonstrated by the prosecutor—as to the way Silva held the gun

and the relevant positions of Silva and Horacio. We thus can

understand why the trial court stated that the demonstration was

“central to the whole case.”

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¶38 At the same time, we are skeptical of the trial court’s

sweeping statement that the demonstration was not “prejudicial at

all.” Seeing a gun in the hands of a defendant will often prejudice the

jury against him. This is true even where there is no question that the

defendant used a gun to commit the alleged crime, as is the case

here. This concern, nonetheless, does not warrant overturning the

trial court’s decision.

¶39 First we don’t have evidence in the record establishing what

the facsimile gun looked like. And that could make a difference. Use

of a plastic water gun, for example, is less likely to prejudice the jury

against the defendant than the use of a real firearm, or a highly

realistic facsimile. Though the gun used here may have resembled

something closer to a real gun, the record is devoid of detail. We

similarly lack evidence regarding the details of the demonstration

itself. Silva claims that the prosecutor repeatedly taunted him in

front of the jury. Having reviewed an audio recording of the trial, we

are skeptical of this claim. Admittedly, we were not privy to the

details of the demonstration. Yet the trial judge was. And he

determined that the probative value of the demonstration was not

substantially outweighed by a danger of unfair prejudice. See UTAH

R. EVID. 403. That determination is entitled to substantial deference.

See State v. Allen, 2005 UT 11, ¶ 39, 108 P.3d 730 (explaining that a

district judge “is in an advantaged position to determine the impact

of courtroom events on the total proceedings” and applying an

abuse of discretion standard of review).

¶40 The trial court also gave defense counsel an opportunity to

clarify the factual differences between the demonstration and the

shooting. And Silva testified that his responses to the prosecutor’s

questioning about whether he felt in danger during the

demonstration were only meant to convey that he did not feel in

danger at that exact moment; he did feel in danger at the time of the

shooting. These clarifications soften the potential prejudice the

defendant may have faced as a result of the demonstration.

¶41 We reiterate that our decision is largely a result of the

standard of review. We affirm the trial court’s decision because we

are unpersuaded that it abused its discretion, or that the

demonstration “so likely influenced the jury that the defendant

cannot be said to have had a fair trial.” Vargas, 2001 UT 5, ¶ 44

(citation omitted) (internal quotation marks omitted). Under

different circumstances we might reach a different conclusion. As

this case proves, permitting a demonstration in which a defendant

holds a facsimile gun does not per se violate rule 403 and justify a

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STATE v. SILVA

Opinion of the Court

mistrial. But there is a risk that such a demonstration could. And we

emphasize that our decision here is not a green light to the use of

gun demonstrations at any trial going forward.

III

¶42 We affirm Silva’s conviction for the reasons stated above.

We also affirm the trial court’s decision to deny Silva’s motion for a

mistrial, while emphasizing that our decision on that point is largely

a product of the deferential standard of review.

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