State v. Maama

2015 UT App 235

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

MESIA SII MAAMA,

Defendant and Appellant.

Opinion

No. 20131066-CA

Filed September 11, 2015

Third District Court, Salt Lake Department

The Honorable Katie Bernards-Goodman

No. 121904204

John B. Plimpton and Wojciech S. Nitecki, Attorneys

for Appellant

Sean D. Reyes and Ryan D. Tenney, Attorneys

for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES

J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.

TOOMEY, Judge:

¶1 Mesia Sii Maama appeals from her convictions of assault,

a class B misdemeanor, and riot, a third degree felony.1 We

affirm.

1. Mesia was tried jointly with two other defendants. Each

codefendant filed a separate appeal, see State v. Maama, 2015 UT

App 234; State v. Pham, 2015 UT App 233.

State v. Maama

BACKGROUND

¶2 Late one night in March 2012, Mesia, her brother Semisi

Maama, a female friend (Friend), and Anh Tuam Pham, whom

Mesia had been dating, drove Friend’s car to a fast-food

restaurant.2 Mesia and Friend went inside the restaurant, and

Semisi and Pham stayed outside in the parking lot drinking

alcohol and listening to music. Meanwhile, two parking stalls

away, a man (Father) and his eleven-year-old son (Child) sat in

their car waiting for Child’s mother (Mother) to return.

¶3 Minutes later, Pham and Semisi approached Father’s

vehicle. Pham opened Father’s door, pointed a gun at him, and

ordered him to give them money. Father could not comply,

because Mother had his wallet inside the restaurant, and Pham

pistol-whipped him. Father told the men that his son was

present and pleaded with Semisi for sympathy, but Semisi

repeated Pham’s demands for money. Child offered the men his

allowance money, and Pham took it from him. Angered, Father

ripped the gun out of Pham’s hand, got out of the car, knocked

Semisi to the ground, and began fighting with Pham. Eventually,

Pham and Semisi ‚backed off‛ of Father.

¶4 Mesia emerged from the restaurant to see Semisi trying to

stand up and bleeding, and she surmised that he and Pham had

been in an altercation with Father, who appeared to be a ‚big

guy.‛ Deciding it would be prudent to leave, Mesia backed

Friend’s car out of the parking stall and reparked it behind

2. ‚In reviewing a jury verdict, we view the evidence and all

reasonable inferences drawn therefrom in a light most favorable

to the verdict.‛ See State v. Dunn, 850 P.2d 1201, 1205 (Utah 1993).

‚We recite the facts accordingly and present conflicting evidence

only to the extent necessary to understand the issues raised on

appeal.‛ Id. at 1205–06 (citation omitted).

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State v. Maama

Father’s vehicle. Pham helped Semisi get in the back seat and

then hopped in the front passenger’s seat. Mesia ran back to the

restaurant to shout ‚let’s go‛ to Friend and returned to the

driver’s side of the car. Instead of driving off, Mesia, Pham, and

Semisi waited for Friend to come out of the restaurant.

¶5 Believing that the fight was ‚over‛ and the situation had

‚defused,‛ Father waved the gun and yelled, ‚Why are you guys

trying to rob me?‛ This prompted Mesia to take the situation

‚into *her+ own hands.‛ She approached Mother, who had

recently returned to the parking lot, and asked her to get the gun

from Father, promising to leave if Mother returned the gun.

When Mother refused, Mesia approached Father, saying ‚Please,

give me the gun.‛ Father pushed Mesia and told her to get away

from him.

¶6 When Father turned his attention to Semisi and Pham,

Mesia punched Father in the face. Still holding the gun, Father

reached for Mesia but slipped, and Pham and Semisi ‚jumped‛

him. Father tried to protect himself as Mesia, Pham, and Semisi

hit and kicked him on the ground. Mesia ultimately wrestled the

gun from Father’s hand. Soon after, Friend came out of the

restaurant, and the four companions got into the car and drove

away.

¶7 Mesia was charged with aggravated assault and riot.

Semisi and Pham also faced charges stemming from these

events, and the three codefendants were tried together before the

same jury in May 2013.

¶8 At trial, the witnesses gave conflicting accounts regarding

Father’s use of the gun. Although Mother testified Father was

pointing the gun ‚up,‛ not ‚at anybody,‛ Child did not recall

whether Father pointed the gun at anyone. He also testified that

Father had his arms up and ‚wasn’t doing anything with the

gun‛ while Semisi and Pham sat in the car.

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State v. Maama

¶9 In contrast, Mesia, Semisi, and Pham testified that Father

pointed the gun at them. Mesia testified that Father pulled the

trigger. While testifying in support of her theory that she acted

in self-defense when she hit Father, Mesia said she did not know

Semisi and Pham had a gun or had planned a robbery. She

testified that she first noticed the gun in Father’s hand while she,

Semisi, and Pham were waiting for Friend. According to Mesia,

the gun’s slide was not open and she saw Father pull the trigger

twice but it did not fire. After that, she testified that Father

pulled back the slide, which Mesia believed signified Father

loading the gun.3 Semisi and Pham similarly testified that Father

pointed the gun in their direction, but Semisi testified that Father

did not pull the trigger.

¶10 Father testified on direct examination that he

‚remember*ed+ looking at the gun and the chamber was open‛

so ‚it wasn’t able to fire.‛ He also testified that he ‚could have‛

pointed the gun at Pham and Semisi, but he ‚never pointed it at

[Mesia]‛—‚Not once.‛ When asked whether he pulled the

trigger, Father answered, ‚Um, I—I—I believe I did.‛ The

prosecutor responded, ‚You did?‛ Father replied, ‚I don’t know

if I pulled the trigger. I just had it in my hand, but I was shaking

it. You know what I mean? I don’t [think I] deliberately . . .

pulled the trigger.‛ To clarify, the prosecutor asked, ‚So it was

just in your hand shaking?‛ Father answered, ‚Yes.‛ He later

testified, ‚I wasn’t trying to fire at nobody,‛ ‚I just wanted to get

rid of the gun.‛

¶11 After the codefendants rested their cases, the prosecutor

recalled Father to provide rebuttal testimony. Contrary to his

previous testimony, Father denied pointing the gun at the

codefendants and likewise denied pulling the trigger. Semisi’s

3. Pham also testified that the gun was his but that he does not

carry it loaded and a person has to pull the slide back to load it.

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State v. Maama

counsel objected to Father’s rebuttal examination on the basis

that ‚*r+ehashing *Father’s+ direct *testimony+ is not rebuttal.‛

The court overruled this objection, and the prosecutor continued.

¶12 When Mesia’s counsel began cross-examining Father, the

following exchange, with our emphasis, ensued:

*Mesia’s counsel+: *Father+, during your direct I

have a habit of taking very detailed notes.

[Father]: All you guys do.

*Mesia’s counsel+: Well, it depends. This is what I

have when you were questioned about pointing a

gun you said I don’t remember, could have. Is that

still your testimony today?

[Father]: Yeah. Yeah.

*Mesia’s counsel+: Could have?

[Father]: Yes.

*Mesia’s counsel+: And then you testified that the

chamber wouldn’t even fire which is similar to

what you’re saying today, correct?

[Father]: Yeah. I remember looking at my gun in

the right hand, you know, everything is going on

‘cause I was up like this. And I just remember kind

of glancing at it and seeing that the slide was back

and it was open.

*Mesia’s counsel+: Okay. And then the question—

there was a question to you on the first day [of

trial] about pulling the trigger and you testified I

believe I did.

[Father]: Yeah, I—

*Mesia’s counsel+: Do you remember saying that?

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THE COURT: See my notes say “don’t know.” So

we’re not supposed to be relying so heavily on notes. We

need to let—

*Mesia’s counsel+: Well, I get to question him about

it. I mean—

THE COURT: Well, okay. But don’t make it—

*Mesia’s counsel+: He just said yes he believed he

did. I mean—

*Father+: But I don’t believe I pulled trigger. I said I

could have because if it’s in my hand and I’m

shaking—

*Mesia’s counsel]: So you could have pulled the

trigger?

*Father+: Yeah, but I wasn’t pointing the gun at that

time, I was like this.

*Mesia’s counsel+: Okay.

*Father+: So I wasn’t—I never pointed the gun

directly at anyone’s face or anything like that.

¶13 After the codefendants finished cross-examining Father,

the State rested its case. When the court excused the jury, Mesia

moved for a mistrial,4 arguing it was ‚inappropriate‛ for the

judge to ‚interject with *her+ notes and make a comment‛ during

Father’s rebuttal examination. The interruption stopped Father

from ‚answering *the question+ in *Mesia’s+ favor‛ and showed

‚bias‛ by ‚ma*king+ it clear to the jury that *the judge did not+

believe [Mesia’s+ witness.‛ The judge responded, ‚Well, then

again, it’s my job to make sure somebody doesn’t misrepresent

the evidence . . . he had said don’t know before.‛ The prosecutor

4. Semisi and Pham joined in the motion.

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responded that the judge ‚did the appropriate thing to make

sure that what came out was accurate‛ but the jurors should be

instructed that any of the judge’s rulings should not affect their

judgment. Mesia’s counsel countered that the judge’s statement

‚wasn’t a ruling, it was an interjection.‛ The court denied the

motion but gave a curative instruction.

¶14 When the jury returned, the trial court judge gave the

following admonition, again with our emphasis:

As you heard earlier today, we had our little

discussion about notes and this is why you

shouldn’t rely too heavily on notes because I’m not

so confident that anybody is right or wrong. Luckily

in this situation you have the witness on the stand who

clarified himself and it’s up to you to remember his

testimony the way you remember it and never be

overconfident in your notes. Okay.

¶15 The jury evidently rejected Mesia’s claim of self-defense.

Although it acquitted her of aggravated assault, the jury

returned a guilty verdict on riot and on the lesser included

offense of assault. Mesia appeals.

ISSUES ON APPEAL

¶16 Mesia raises four issues on appeal. First, she contends that

the trial court denied her a fair trial by improperly commenting

on the evidence regarding Father’s use of the gun. Second, she

contends that the trial court committed reversible error in

issuing a flawed curative instruction, in failing to instruct the

jury on the State’s burden of proof with respect to self-defense,

and in failing to instruct the jury to consider self-defense in

relation to Mesia. Third, she contends that the evidence was

insufficient to support her conviction of assault because no

reasonable jury could conclude beyond a reasonable doubt that

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State v. Maama

she did not act in self-defense. Finally, she contends that the

cumulative effect of the trial court’s errors requires reversal.

ANALYSIS

I. Improper Comment During Father’s Rebuttal Testimony

¶17 Mesia argues the trial court should have granted her

motion for a mistrial on the ground that the court improperly

commented on the evidence concerning whether Father pulled

the gun’s trigger. Mesia points to the dialogue during Father’s

rebuttal testimony when the judge ‚sua sponte interrupted

[Mesia’s] cross-examination of [Father] . . . to say that, according

to her notes, *Father+ testified during the prosecution’s case-in-

chief that he did not know whether he pulled the trigger‛ of the

gun. In Mesia’s view, the judge’s comment told the jury what the

evidence was, and amounted to ‚an unsolicited, gratuitous,

blatant comment on the evidence that interfered with Mesia’s

cross-examination.‛ Furthermore, Mesia asserts that the judge’s

comment was prejudicial because it ‚likely led the jury to

disbelieve or disregard the compelling evidence that [Father]

pulled the trigger.‛5 Because her ‚entire defense hinged on

whether the jury believed she acted in self-defense,‛ Mesia

asserts there is a reasonable likelihood that whether Father

pulled the trigger was determinative of the guilty verdict.6

5. Mesia does not claim the trial court’s interjection influenced

the jury’s verdict in convicting her of riot; her contention is

limited to the assault conviction.

6. Mesia also contends that the prejudice caused by the judge’s

improper comment ‚was further exacerbated by her use of facial

expressions to express disbelief at certain testimony.‛ Mesia

asserts the improper comment, combined with the judge’s facial

(continued<)

20131066-CA 8 2015 UT App 235

State v. Maama

¶18 The State agrees that ‚a judge may not comment on the

underlying substance of a witness’s testimony‛ but contends the

judge’s comment here was ‚more limited, being confined to a

correction about what [Father] had said at trial, rather than

about whether his testimony was actually true or not.‛ The State

argues that ‚what the judge did here was nothing more than try

to prevent one side’s attorney from improperly commenting on

what the testimony had been.‛

¶19 ‚A trial court’s denial of a motion for mistrial will not be

reversed absent an abuse of discretion.‛ State v. Butterfield, 2001

UT 59, ¶ 46, 27 P.3d 1133 (citation and internal quotation marks

omitted). ‚Unless the record clearly shows that the trial court’s

decision is plainly wrong in that the incident so likely influenced

the jury that the defendant cannot be said to have had a fair trial,

we will not find that the court’s decision was an abuse of

(<continued)

expressions, indicated to the jury that the judge ‚disbelieved the

defense.‛ On the second day of trial, during a conference

regarding jury instructions, Mesia’s counsel asked the court to

modify the instruction on judicial neutrality to ‚add facial

expressions.‛ The trial court judge acknowledged this concern,

stating, ‚I rolled my eyes equally for the Defense and

Prosecution, because everybody’s witnesses had a few eye-

rolling moments. All right, I will watch it.‛ We agree with the

State that any error was harmless—no party disagreed with the

judge’s description of her expressions and the record does not

reflect that ‚those facial expressions favored one side over the

other.‛ We therefore cannot conclude that the judge’s facial

expressions exacerbated any prejudice caused by the judge’s

improper comment. However, for reasons explained below, we

agree with Mesia that a judge should forbear from conveying

skepticism of any witness, through facial expressions or

otherwise.

20131066-CA 9 2015 UT App 235

State v. Maama

discretion.‛ Id. (citation and internal quotation marks omitted).

In other words, to obtain reversal, the defendant must show that

the challenged incident ‚substantially influenced‛ the verdict. See

id. ¶ 47 (citation and internal quotation marks omitted).7

¶20 Rule 19(f) of the Utah Rules of Criminal Procedure

instructs that ‚*t+he court shall not comment on the evidence in

the case, and if the court refers to any of the evidence, it shall

instruct the jury that they are the exclusive judges of all

questions of fact.‛ ‚In the course of a jury trial, a judge must not

act or speak so as to indicate an opinion either on the credibility

of evidence or on disputed issues of fact.‛ State v. Beck, 2007 UT

60, ¶ 15, 165 P.3d 1225. Likewise, a judge may not ‚purport to

tell the jury either what the evidence is or what the facts are.‛ See

State v. Schoenfeld, 545 P.2d 193, 197 (Utah 1976). ‚This is because

‘*i+t is the sole and exclusive province of the jury to determine

the facts in all criminal cases, whether the evidence offered by

the State is weak or strong, is in conflict or is not controverted.’‛

7. Mesia relies on State v. Beck, 2007 UT 60, 165 P.3d 1225, for her

argument that this issue should be reviewed for correctness,

rather than abuse of discretion. See id. ¶¶ 6–7, 10. She argues ‚a

trial judge is less likely to fairly adjudicate a motion for a mistrial

on the basis of the judge’s own conduct than the conduct of

someone else.‛ But because Mesia’s reliance on Beck is

misplaced, we reject this argument. Although, in Beck, the

supreme court reviewed this court’s application of the law for

correctness, it reviewed a district court’s improper questioning

for whether the court ‚exceeded the range of discretion

permitted by the rules of evidence and case law.‛ Id. ¶ 7. In other

words, the supreme court reviewed the district court’s conduct

for an abuse of discretion. Id. Furthermore, even under a

correctness standard, we would conclude that the judge’s

comments were erroneous, but not prejudicial. See infra ¶¶ 22–

27.

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State v. Maama

State v. Davis, 2013 UT App 228, ¶ 97, 311 P.3d 538 (alteration in

original) (quoting State v. Green, 6 P.2d 177, 181 (Utah 1931)).

¶21 We agree that the trial court improperly commented on

the evidence in this case. It appears the judge may have believed

that Mesia’s counsel misstated Father’s testimony and stepped in

to assert that her own notes differed from counsel’s. Although

she went on to caution that no one should ‚rely*+ so heavily on

notes,‛ by telling the jury what her own notes indicated, the

judge ‚purport[ed] to tell the jury either what the evidence is or

what the facts are.‛ See Schoenfeld, 545 P.2d at 197. Because the

judge ‚indicate[d] an opinion . . . on disputed issues of fact‛ with

respect to whether Father pulled the trigger, see Beck, 2007 UT 60,

¶ 15, we conclude the interjection constituted an improper

comment on the evidence.

¶22 Furthermore, because counsel did not misstate Father’s

testimony, we are not convinced the interjection merely

corrected counsel’s characterization of what Father said. Father

testified both that he believed he did pull the trigger and that he

did not know whether he did. Counsel merely inquired into the

inconsistency in Father’s testimony. The court was not faced

with a situation in which it needed to prevent counsel from

improperly suggesting what the testimony had been.

Accordingly, given that there was nothing for the court to

correct, the trial court’s interference was unwarranted.

¶23 Nevertheless, the judge’s interjection did not undermine

the overall fairness of the trial. Although the court’s comment

went to whether Father pulled the trigger, what the judge

recalled from her notes was not determinative of whether Mesia

acted in self-defense, and therefore likely did not substantially

influence the jury’s verdict. Mesia claimed she acted in self-

defense when she punched Father. Determining whether Mesia

acted in self-defense hinged on whether she ‚reasonably

believe[d] that force or a threat of force [was] necessary to

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State v. Maama

defend‛ against another’s ‚imminent use of unlawful force.‛ See

Utah Code Ann. § 76-2-402(1)(a) (LexisNexis 2012). At the point

Mesia punched Father, Father’s fight with Semisi and Pham was

already ‚over.‛ Yet, Mesia reengaged with Mother and Father to

request that Father return the gun. Although there is conflicting

evidence of whether Father pulled the trigger or pointed the gun

at Mesia, Semisi, and Pham, the jurors had to decide whether the

State met its burden to disprove that Mesia reasonably believed

force was necessary to defend herself and the others. They had

to consider the nature and immediacy of Father’s threat. See id.

§ 76-2-402(5)(a)–(b). Given the circumstances, we believe the

factual dispute about whether Father pulled the gun’s trigger

was only a small part of the jurors’ resolution of Mesia’s self-

defense claim. Thus, without relying on a finding that Father did

or did not pull the trigger, the jurors could have concluded

Mesia simply acted to get the gun back, not to protect herself or

others.

¶24 Our conclusion is bolstered by the fact that the conflicting

evidence over whether Father pulled the trigger did not

permeate the trial or the parties’ closing statements. The trial

court’s interjection was an isolated comment made during a

three-day trial that yielded approximately 512 pages of

transcribed testimony and argument. The prosecutor’s closing

statements focused on whether Father pointed the gun at anyone

instead of whether he pulled the trigger. The prosecutor alluded

to the interjection only once, and when he noted that Father had

‚clarified himself,‛ the prosecutor reminded the jurors it was

their duty to decide the facts. For instance, the prosecutor argued

as follows:

In his words [Father] said the situation was

deescalated, they’re gone from him they’re in the

car. He never aimed it or pointed it at anyone. And

again, those—this is where you’re the fact finder as

to what you remember. There was some

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State v. Maama

clarification on the stand but at least from my

understanding and I could be wrong, just as

anybody else could be, he has the gun, he’s

shaking. But he never testified that he raised it up

and pointed it at anyone or deliberately pulled the

trigger at anyone. He could have had his finger on

the trigger. But you’re the fact finders and I’m not

going to beat that horse.

Although the prosecutor argued the facts in the light most

favorable to the State’s case (as is expected), he did not unduly

reiterate or emphasize the judge’s interjection about whether

Father pulled the trigger.

¶25 Only Semisi’s counsel expressly mentioned the judge’s

interjection during closing arguments and, in doing so, argued

for an interpretation of Father’s testimony that favored Mesia.

Specifically:

[t]he situation is deescalated. Mesia comes out, sees

the gun being—trigger being pulled. [Father] . . .

admitted that he had pulled the trigger at least

once. When the judge said something, *Mesia’s

counsel] asked him, he was answering yes, I did,

the judge interrupted him and then he changed it

back to well, I believe I may have. I ma[y] have. He

softened it because he’s feeling like that was a bad

act. He admitted in direct and then softens it with

a—well, I think I maybe. Maybe.

Thus, during closing arguments the trial court’s comment was

mentioned only once—to emphasize that Father prevaricated in

his testimony concerning whether he pulled the trigger. Because

the parties did not treat the issue as pivotal, and because in any

event the jury likely understood that Father had contradicted

himself on this point, we do not believe that the court’s

interjection ‚substantially influenced‛ the verdict. See State v.

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State v. Maama

Butterfield, 2001 UT 59, ¶ 47, 27 P.3d 1133 (emphasis omitted)

(citation and internal quotation marks omitted).

¶26 In sum, although commenting on the evidence was

improper, we conclude the trial court’s interjection did not likely

influence the jury and thus did not render the trial unfair.

Accordingly, we hold that the denial of Mesia’s motion for

mistrial was not ‚plainly wrong‛ and thus not an abuse of the

court’s discretion.

II. Jury Instructions

¶27 Mesia next contends that the jury instructions given by

the trial court were flawed in three ways. Mesia first argues that

the court erred in giving the curative instruction because the

instruction included an improper comment on the evidence.

Second, Mesia contends the jury instructions regarding self-

defense were inadequate because the trial court failed to instruct

the jury on the State’s burden to disprove beyond a reasonable

doubt that Mesia acted in self-defense. Third, Mesia contends the

trial court did not clearly instruct the jury to consider the self-

defense jury instructions in connection with Mesia’s defense.

¶28 Mesia did not preserve her challenge to the jury

instructions but seeks our review under the plain-error and

ineffective-assistance-of-counsel exceptions to the preservation

rule. To establish plain error, an appellant must show ‚(i) *a+n

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

court; and (iii) the error is harmful, i.e., absent the error, there is

a reasonable likelihood of a more favorable outcome for the

appellant, or phrased differently, our confidence in the verdict is

undermined.‛ State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993).

To demonstrate ineffective assistance of counsel, an appellant

must show (i) that trial counsel’s ‚performance was deficient‛

and (ii) that ‚the deficient performance prejudiced the defense.‛

Strickland v. Washington, 466 U.S. 668, 687 (1984). Under both the

plain-error analysis and the ineffective-assistance-of-counsel

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State v. Maama

analysis, Mesia must demonstrate that any purported error

prejudiced her defense. See Dunn, 850 P.2d at 1225.

¶29 Jury instructions require no particular form so long as

they accurately convey the law. See State v. Marchet, 2009 UT

App 262, ¶ 23, 219 P.3d 75. ‚[I]f taken as a whole they fairly

instruct the jury on the law applicable to the case, the fact that

one of the instructions, standing alone, is not as accurate as it

might have been is not reversible error.‛ State v. Davis, 2013 UT

App 228, ¶ 104, 311 P.3d 538 (citation and internal quotation

marks omitted). Furthermore, ‚*w+e review challenges to jury

instructions under a correctness standard.‛ Id. ¶ 15 (citation and

internal quotation marks omitted).

A. Curative Instruction

¶30 Mesia contends the trial court improperly commented on

the evidence a second time when the court issued an admonition

intended to cure the prejudice created by the court’s interjection

regarding Father’s testimony about his handling of the gun. The

court told the jury that ‚*l+uckily in this situation you have the

witness on the stand who clarified himself.‛ This statement,

Mesia asserts, ‚vouched for the credibility‛ and accuracy of the

answer Father gave after the judge interrupted him: ‚I don’t

believe I pulled trigger. I said I could have . . . .‛

¶31 We conclude that the curative instruction given by the

court in response to Mesia’s counsel’s objection to the court’s

interjection was not prejudicial when viewed in context and with

the other instructions. Mesia takes issue with the isolated

language that Father ‚clarified himself,‛ but the curative

instruction also included language reminding the jurors it was

their responsibility to remember Father’s testimony, expressing

doubt regarding the accuracy of any notes about his testimony,

and cautioning them not to ‚rely too heavily on notes.‛ This

instruction as a whole emphasized the jurors’ duty to depend on

their own memories of the testimony presented at trial.

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State v. Maama

¶32 In addition, other instructions informed the jury that

‚[d]eciding what the facts are is your job, not *the judge’s+.‛

Instruction 4 told the jury that it must ‚decide the factual

issues,‛ i.e., issues ‚relate*d+ to what did, or did not, happen in

this case.‛ Further, the court instructed the jury, ‚Neither the

lawyers nor I decide the case. That is your role. Do not be

influenced by what you think our opinions might be. Make your

decision based on the law given in my instructions and on the

evidence presented in court.‛ Instruction 15 focused on judicial

neutrality, stating, ‚As the judge, I am neutral. If I have said or

done anything that makes you think I favor one side or another,

that was not my intention. Do not interpret anything I have said

or done as indicating that I have any particular view of the

evidence or the decision you should reach.‛ Given these other

jury instructions, we are not convinced that the curative

instruction’s isolated statement that Father ‚clarified himself‛ on

the stand created a reasonable likelihood of a different result.

¶33 In short, even assuming there was error in the curative

instruction, Mesia has not demonstrated she was prejudiced by

it. Accordingly, we conclude her claims of plain error and

ineffective assistance of counsel based on the curative instruction

fail.

B. Instruction Regarding the State’s Burden of Proof

¶34 Mesia asserts that the relevant jury instruction,

Instruction 57, did not adequately explain to the jury the State’s

burden to disprove self-defense beyond a reasonable doubt.

Specifically, Mesia argues that the instruction asked the jury to

determine the threshold issue of whether self-defense had been

raised and that this may have confused the jury about whether

self-defense applied to the charges against her. We are not

convinced.

¶35 Utah law requires the State ‚to disprove the affirmative

proposition of self-defense, not just prove guilt, beyond a

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State v. Maama

reasonable doubt.‛ State v. Garcia, 2001 UT App 19, ¶ 16, 18 P.3d

1123. ‚When the defendant has reached the threshold to merit

self-defense instructions,‛ trial courts must issue special jury

instructions that ‚clearly communicate to the jury what the

burden of proof is and who carries the burden.‛ Id. Accordingly,

‚*t+rial courts should separately instruct each jury clearly that

the State must disprove self-defense, and other affirmative

defenses, beyond a reasonable doubt.‛ Id.

¶36 Reading the instruction as a whole, we are not persuaded

Mesia has demonstrated that Instruction 57 inadequately

instructed the jury on the law applicable to the case. The

instruction reads,

[T]he laws of Utah do not require a defendant to

establish self-defense by a preponderance or

greater weight of the evidence. Once the issue of self-

defense is raised, whether by the prosecution’s

witnesses or those of the defense, the prosecution

has the burden to prove beyond a reasonable doubt

that the act was not done in self-defense. The

defendant has no particular burden of proof but is

entitled to be found not guilty if there is any basis

in the evidence from either side sufficient to create

a reasonable doubt as to whether he acted in self-

defense.

(Emphasis added.) Mesia argues that the clause ‚[o]nce the issue

of self-defense is raised‛ communicated to the jury that ‚the

prosecution needed to disprove self-defense only if the issue of

self-defense was raised.‛ Mesia further argues that the phrase ‚as

to whether he acted in self-defense‛ implies that Mesia would

have had to produce positive evidence that she acted in self-

defense. We are not persuaded by Mesia’s argument.

¶37 The instruction’s phrasing did not create ambiguity or

confusion regarding the applicability of the State’s burden of

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State v. Maama

proof. It correctly described to the jury the prosecutor’s burden

and the standard of proof, and it pointed out that ‚[t]he

defendant has no particular burden of proof but is entitled to be

found not guilty if there is any basis in the evidence from either

side sufficient to create a reasonable doubt as to whether he

acted in self-defense.‛ See Garcia, 2001 UT App 19, ¶¶ 7–16, 18

(providing a thorough analysis concerning the allocation of the

burden of proof with respect to self-defense instructions). As a

result, Mesia has not established that Instruction 57 constitutes

error, let alone obvious error, and her plain-error claim fails.

Similarly, because any objection to Instruction 57 would have

been futile, Mesia’s trial counsel did not render deficient

performance. See Layton City v. Carr, 2014 UT App 227, ¶ 19, 336

P.3d 587 (‚[C]ounsel’s performance at trial is not deficient if

counsel refrains from making futile objections, motions, or

requests.‛ (citation and internal quotation marks omitted)).

Mesia therefore is not entitled to relief under her theories of

plain error or ineffective assistance of counsel.

C. Whether the Jury Instructions Conveyed That Mesia

Raised Self-Defense

¶38 Mesia also argues that the jury instructions failed to

convey that ‚self-defense was raised or that it otherwise applied

to the charges against Mesia.‛ In particular, she claims the self-

defense instructions were deficient because their use of

masculine pronouns suggested the defense applied only to her

male codefendants, and because they did not specifically state

that self-defense applied to her.

¶39 Here, for three reasons, Mesia has not established that she

was prejudiced by the alleged deficiencies in the self-defense

instructions. First, the other self-defense instructions were

gender neutral. For instance, Instruction 51, the initial self-

defense instruction, explained that ‚[a] person is justified in

threatening or using force against another when and to the

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State v. Maama

extent that he or she reasonably believes that force is necessary to

defend himself or a third person against such other’s imminent

use of unlawful force.‛ (Emphasis added.) There are other

examples. Instruction 52 explained that a ‚person is not justified

in using force if he or she‛ initially provoked the use of force, etc.

(Emphasis added.) Instruction 55 says that ‚a person does not

have a duty to retreat.‛ (Emphasis added.) Instruction 56 speaks

in terms of ‚*i+f one is confronted by the appearance of peril.‛

(Emphasis added.) Thus, the fact that Instruction 57 used the

masculine pronoun in stating that the ‚defendant . . . is entitled

to be found not guilty if . . . he acted in self-defense‛ does not

convince us that the jury might have read the self-defense

instructions as applying to only the male codefendants.

(Emphasis added.)

¶40 Second, the compulsion instruction explicitly directed

that it ‚applie*d+ only to *Semisi’s+ claim of coercion in the

alleged Robbery.‛ Because the compulsion instruction was

expressly limited to one charge against Semisi, we agree with the

State that ‚the reasonable implication to the jury was that, unlike

compulsion, self-defense applied to all‛ defendants and all

charges. We therefore conclude that the instructions as a whole

fairly instructed the jury that it could consider self-defense in

connection with the charges against Mesia.

¶41 Finally, we are not persuaded that the jury was confused

or misled regarding whether the self-defense instructions

applied to Mesia. The overall tenor of the proceedings made

clear to the jury that Mesia had raised self-defense as an

affirmative defense. During opening statements, Mesia’s counsel

told the jury that Mesia ‚did nothing illegal. . . . [S]he was trying

to . . . defend what she has a right to do under the law.‛ The

closing arguments also made plain that the jury should consider

whether self-defense applied to the charges against Mesia.

Mesia’s counsel specifically asked the jury ‚to look carefully at

the instructions regarding self-defense‛ because ‚there is self-

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State v. Maama

defense on the aggravated assault and there is self-defense on

the riot for Mesia.‛ The prosecutor’s closing argument repeated

an instruction on self-defense, explaining that ‚*t+here is a self-

defense claim, specifically by Mesia Maama,‛ and argued more

than once that the facts of the case did ‚not . . . equal self-

defense.‛ Given these circumstances, we do not see how the jury

could have been confused about whether Mesia had raised self-

defense as an affirmative defense. For these reasons, we

conclude Mesia has not established that the purported error in

the self-defense instructions prejudiced her defense.8

III. Sufficiency of the Evidence to Support the Assault

Conviction

¶42 Mesia contends the evidence was insufficient to support

her conviction for assault.9 The parties agree the assault

conviction was based on Mesia punching Father immediately

after she approached him to ask for the gun. Mesia admits she

punched Father, but contends the evidence was insufficient for

conviction because ‚*n+o reasonable jury could have concluded

beyond a reasonable doubt that Mesia did not reasonably believe

8. Although confusion was unlikely here, we agree with Mesia

that instructing the jury using pronouns that correspond with

the gender of the person or persons to whom they apply avoids

any possible confusion and thus is the better practice.

9. Assault is ‚an attempt, with unlawful force or violence, to do

bodily injury to another; . . . a threat, accompanied by a show of

immediate force or violence, to do bodily injury to another;

or . . . an act, committed with unlawful force or violence, that

causes bodily injury to another or creates a substantial risk of

bodily injury to another.‛ Utah Code Ann. § 76-5-102(1)

(LexisNexis 2012). Mesia does not challenge the sufficiency of

the evidence with regard to her riot conviction.

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State v. Maama

that punching [Father] was necessary to defend[] herself, Semisi,

or Pham from *Father’s+ imminent use of unlawful force.‛

¶43 ‚We will reverse a jury conviction for insufficient

evidence only if the evidence presented at trial is so insufficient

that reasonable minds could not have reached the verdict.‛ State

v. Fedorowicz, 2002 UT 67, ¶ 40, 52 P.3d 1194 (citation and

internal quotation marks omitted). ‚[I]n reviewing the

sufficiency of the evidence, we refuse to re-evaluate the

credibility of witnesses or second-guess the jury’s conclusion.‛

Id. (citation and internal quotation marks omitted). ‚We also

assume that the jury believed the evidence that supports the

verdict.‛ Id.

¶44 A person is justified in using non-deadly force against

another in self-defense ‚when and to the extent that the person

reasonably believes that force or a threat of force is necessary to

defend the person or a third person against another person’s

imminent use of unlawful force.‛ Utah Code Ann. § 76-2-

402(1)(a) (LexisNexis 2012). ‚In determining *the+ imminence‛ of

the threat or the ‚reasonableness‛ of force used in self-defense,

‚the trier of fact may consider . . . the nature . . . *and+ the

immediacy of the danger.‛ Id. § 76-2-402(5)(a)–(b). ‚Force is

justifiable under section 76-2-402 only if a reasonable belief in the

imminence of unlawful harm and in the necessity of defensive

force coincide with the defendant’s use of force.‛ State v. Berriel,

2013 UT 19, ¶ 14, 299 P.3d 1133.

¶45 Viewing the evidence in the light most favorable to the

verdict, we believe the jury could conclude beyond a reasonable

doubt that Mesia did not commit the assault against Father in

self-defense. There was evidence that by the time Mesia saw

Father holding the gun, the fight was ‚over‛ and the situation

had ‚defused.‛ Despite this de-escalation, Mesia approached

Father, asking for the gun. The jury could reasonably conclude

from this evidence that Father did not pose an ‚imminent‛

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State v. Maama

threat to Mesia, Semisi, or Pham. Although Father waved the

gun—and perhaps even pulled the trigger—some evidence

suggested he never pointed it at anyone. As a result, the jury was

justified in concluding that Mesia did not have a reasonable

belief that punching Father was ‚necessary to defend‛ herself

and her codefendants. Accordingly, the evidence is sufficient to

support Mesia’s assault conviction.

IV. Cumulative Error

¶46 Finally, Mesia contends that even if her several claimed

errors were not individually prejudicial, they constitute

cumulative error and warrant reversal. ‚Under the cumulative

error doctrine, we will reverse only if the cumulative effect of the

several errors undermines our confidence . . . that a fair trial was

had.‛ See State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993)

(omission in original) (citation and internal quotation marks

omitted); see also State v. Gonzales, 2005 UT 72, ¶ 74, 125 P.3d 878

(explaining that ‚*i+f the claims are found on appeal to not

constitute error, or the errors are found to be so minor as to

result in no harm, the doctrine [of cumulative error] will not be

applied‛). As discussed above, because we believe the errors in

this case are so minor as to result in no harm, we conclude that

their cumulative effect does not ‚undermine our confidence‛ in

the fairness of the trial so as to warrant reversal of Mesia’s

convictions. See Dunn, 850 P.2d at 1229.

CONCLUSION

¶47 We conclude that although the trial court improperly

commented on the evidence, the comment did not substantially

influence the verdict. The trial court therefore did not exceed its

discretion in denying Mesia’s motion for a mistrial. We further

conclude that any error in the curative instruction addressing the

court’s improper comment did not prejudice Mesia. We also

have determined the jury instructions did not misstate the State’s

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State v. Maama

burden of proof and Mesia’s other claims of error in the jury

instructions were harmless. Moreover, the evidence was

sufficient to sustain Mesia’s conviction for assault. Accordingly,

we affirm Mesia’s convictions.

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