State v. Christensen

2014 UT App 166
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
JEFFERY A. CHRISTENSEN,
Defendant and Appellant.
Opinion
No. 20130351-CA
Filed July 17, 2014
Fourth District Court, Provo Department
The Honorable Samuel D. McVey
No. 121400161
Jennifer K. Gowans-Vandenberg, Attorney
for Appellant
Sean D. Reyes and Deborah L. Bulkeley, Attorneys
for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
JAMES Z. DAVIS and MICHELE M. CHRISTIANSEN concurred.
ROTH, Judge:
¶1 Defendant Jeffery A. Christensen was convicted of second
degree felony theft and third degree felony criminal mischief for
the burglary of a hunting preserve clubhouse in Utah County.
Police never recovered any of the stolen property, so the
convictions were based largely on circumstantial evidence and
the company manager’s estimate of the value of property that
was stolen or damaged during the burglary. On appeal,
Christensen argues that the manager’s estimates were so
speculative that it was plain error for the court to allow the jury
to consider them and ineffective assistance for his trial counsel

State v. Christensen
20130351-CA 2 2014 UT App 166
not to object to the sufficiency of the evidence. He also argues
that the prosecutor inappropriately called the jury’s attention to
facts not in evidence during his closing argument, bolstered the
credibility of a witness, and improperly offered his personal
opinion of Christensen’s guilt. We affirm.
BACKGROUND1
¶2 Wasatch Wing & Clay (WWC) is a bird hunting preserve
in Utah County located about twelve miles west of Lehi,
accessed from SR-73. Brian Beckstead was WWC’s manager until
March 2012. His duties included managing the company’s
finances, overseeing routine maintenance throughout the
company’s property, and tracking its inventory.
¶3 On Monday November 14, 2011, Beckstead received a call
at 1:30 a.m. from WWC’s security company alerting him to a
potential burglary at the WWC clubhouse. Because rodents had
set off WWC’s basement motion detectors in the past, Beckstead
told the security company to call him back if it detected any
activity on the main floor. One hour later, the security company
called again and told Beckstead that movement had been
detected on the main floor. Beckstead immediately left his home
in Saratoga Springs and drove toward the clubhouse. As he
approached WWC from the southwest on SR-73, Beckstead saw
a vehicle drive south on the dirt road from the clubhouse and
then turn northeast on SR-73 toward Lehi. Beckstead called 911
and followed the vehicle. He described the vehicle as a white
Chevy pickup truck with a shell and gave the dispatcher its
license plate number.
1. ‚On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.‛
State v. Brown, 948 P.2d 337, 339 (Utah 1997).

State v. Christensen
20130351-CA 3 2014 UT App 166
¶4 Beckstead eventually stopped following the truck and
drove back to WWC to check on the clubhouse. He noticed that a
cedar post that supported one of the company’s brown-painted
access gates had been ‚sheared off at the base.‛ The gate was
damaged and had black paint marks on it, and a window near
the clubhouse’s main door was also broken. Police arrived and
took pictures of ‚black transfer‛ paint on the broken gate as well
as two tire tracks they found nearby. Police then accompanied
Beckstead inside the clubhouse, where he discovered that his
computer, monitor, a painting, and several boxes of shirts were
missing. The cash drawer, which had held both cash and checks
when he closed up the night before, was also empty.
¶5 The license plate number Beckstead called in was
registered to Jerry Christensen, the father of the Defendant,
Jeffery Christensen. Police visited the Christensen home the day
of the burglary, but the truck was not there. Christensen’s father
told police that his son lived in a trailer next to the home but that
he was not there because he was out driving the truck.
¶6 Police arranged to interview Christensen the next day in
his trailer. When they arrived, police noticed that the father’s
white pickup truck was parked outside and that it had a number
of ‚scrapes and scuffs on *its+ black plastic‛ tire flares. The front
bumper was ‚obviously dented‛ below the license plate, and
there were several ‚dents and scrapes‛ on the truck’s passenger
side. One dent near the bumper had ‚brown-colored tint paint
transfer‛ that looked ‚fairly new.‛ Later, police also determined
that the tire tracks the investigators found near WWC’s broken
gate had ‚similar pattern characteristics‛ to the tread on the
Christensen truck.
¶7 Christensen told police that he was visiting a friend
(Friend) in Lehi at the time of the burglary. Friend initially
confirmed part of Christensen’s story, telling police that
Christensen stopped by for a cigarette sometime between 2:30
and 3:30 a.m. on November 14. But she later changed her story to
say that Christensen had not visited her home that night and

State v. Christensen
20130351-CA 4 2014 UT App 166
claimed that he had asked her to lie to police. Police never
recovered any of the stolen property.
¶8 The State charged Christensen with burglary, theft, and
criminal mischief. Based on Beckstead’s estimate that the
property stolen from the clubhouse was worth more than $5,000,
the theft was charged as a second degree felony. The criminal
mischief was charged as a third degree felony based on estimates
that the damage to the window and gate was between $1,500
and $5,000. A jury convicted Christensen of all three counts.
Christensen appeals.
ISSUES AND STANDARDS OF REVIEW
¶9 Christensen argues that his trial counsel provided
ineffective assistance by failing to seek a directed verdict based
on insufficient evidence of the value of WWC’s damaged and
stolen property. He also argues that the estimates were so
lacking in foundation that the court erred by submitting them to
the jury. Additionally, Christensen argues that the prosecutor
made several statements during closing argument that
constituted prosecutorial misconduct.
¶10 None of the issues Christensen raises on appeal were
preserved at trial, so he asks us to review them for ineffective
assistance of counsel and plain error. ‚An ineffective assistance
of counsel claim raised for the first time on appeal presents a
question of law.‛ State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. To
prove ineffective assistance, Christensen must show (1) ‚that
counsel’s performance was deficient, in that it fell below an
objective standard of reasonable professional judgment‛ and (2)
‚that counsel’s deficient performance was prejudicial—i.e., that
it affected the outcome of the case.‛ State v. Litherland, 2000 UT
76, ¶ 19, 12 P.3d 92 (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). ‚The first prong . . . requires that the defendant rebut
the strong presumption that under the circumstances, the
challenged action might be considered sound trial strategy.‛ Id.

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20130351-CA 5 2014 UT App 166
(citation and internal quotation marks omitted). And ‚*w+here
the record appears inadequate in any fashion, ambiguities or
deficiencies resulting therefrom simply will be construed in
favor of finding that counsel performed effectively.‛ Id. ¶ 17. The
failure ‚to raise futile objections does not constitute ineffective
assistance of counsel.‛ State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d
546.
¶11 To establish plain error, Christensen must show that ‚(i)
[a]n error exists; (ii) the error should have been obvious to the
trial court; and (iii) the error is harmful, 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.‛ See State v. Dunn, 850 P.2d 1201, 1208–09
(Utah 1993).
¶12 Finally, Christensen invokes the cumulative error
doctrine, arguing that the overall effect of these errors prejudiced
his defense. We will reverse a conviction for cumulative error
‚‘only if the cumulative effect of the several errors undermines
our confidence . . . that a fair trial was had.’‛ State v. Wright, 2013
UT App 142, ¶ 44, 304 P.3d 887 (omission in original) (quoting
Dunn, 850 P.2d at 1229).
ANALYSIS
¶13 We conclude that Christensen’s trial counsel did not
provide ineffective assistance for failing to object to Beckstead’s
estimates and that it was not plain error for the court to allow
the jury to consider them. We also conclude that none of the
prosecutor’s statements during closing argument amounted to
misconduct, so Christensen’s trial counsel was not ineffective for
failing to object and the trial court did not commit plain error by
not intervening.

State v. Christensen
20130351-CA 6 2014 UT App 166
I. Estimates of the Value of WWC’s Property
¶14 Christensen argues that the foundation for Beckstead’s
estimate of the value of the stolen cash and checks and the
damaged gate was so weak that his trial counsel was ineffective
for not challenging it and the trial court plainly erred by
submitting it to the jury. Absent these errors, Christensen argues,
‚he would not have been convicted of a third degree felony for
criminal mischief‛ or ‚of second degree felony theft.‛ Instead,
the maximum penalty available would have been a class B
misdemeanor for criminal mischief and a third degree felony for
theft.
¶15 Christensen frames his argument as a challenge to the
sufficiency of the evidence, asserting that Beckstead’s estimate of
the value of the damaged and stolen property lacked foundation,
was ‚speculative,‛ and was ‚not measurable.‛ But after the
estimates were admitted into evidence without objection, the
jury had specific value estimates upon which it could rely to
support a conviction. See, e.g., State v. Bingham, 684 P.2d 43, 47
(Utah 1984) (sustaining a conviction for theft of property worth
more than $1,000 where evidence of value ‚was only roughly
estimated‛). In essence, then, the alleged error Christensen
identifies is not the sufficiency of the evidence to support his
convictions; rather, it is whether the value estimates were
inadmissible for lack of foundation. Even if Christensen had
identified this error correctly, however, we conclude that the
estimates were supported by an adequate foundation. Thus, trial
counsel’s performance was not deficient for failing to object and
the trial court did not err by submitting the evidence to the jury.
A. Second Degree Felony Theft
¶16 Theft is a second degree felony if the value of stolen
property ‚is or exceeds $5,000.‛ Utah Code Ann. § 76-6-412(1)(a)

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20130351-CA 7 2014 UT App 166
(LexisNexis Supp. 2013).2 It is a third degree felony if the stolen
property is worth more than ‚$1,500 but . . . less than $5,000.‛ Id.
§ 76-6-412(1)(b). At trial, Beckstead estimated that the items
stolen from the WWC clubhouse were worth about $6,675:
$1,100 in checks, $3,900 in cash, a $1,100 computer and monitor,
a $175 painting, and $400 worth of t-shirts. Christensen concedes
that Beckstead’s testimony was sufficient to establish the value
of the computer, the painting, and the t-shirts, which were
collectively worth about $1,675. But he argues that ‚Beckstead
could only guess the values of the stolen cash and checks‛
because the computer containing the company’s financial
records had been stolen and Beckstead ‚had not backed up the
hard drive for several weeks prior to the burglary.‛ Christensen
contends that his trial counsel should have challenged
Beckstead’s estimate or that the trial court should have withheld
it from the jury on its own accord.
¶17 We conclude that trial counsel’s failure to challenge the
admissibility of the evidence was not deficient performance.
Christensen did not object to the admissibility of Beckstead’s
estimate at trial, nor did he submit any evidence showing that
the actual value of the stolen cash and checks was less than
$5,000. On appeal, Christensen has also failed to identify any
evidence in the record that calls Beckstead’s estimate into
question. The deferential standard of review that applies to
ineffective assistance of counsel claims requires us to presume
that trial counsel ‚observed the relevant proceedings, knew of
materials outside the record, and interacted with the client, with
opposing counsel, and with the judge.‛ Harrington v. Richter, 131
S. Ct. 770, 788 (2011). Consequently, ‚*w+here the record appears
inadequate in any fashion, ambiguities or deficiencies resulting
therefrom simply will be construed in favor of finding that
counsel performed effectively.‛ State v. Litherland, 2000 UT 76,
2. We cite the current version of the Utah Code as a convenience
to the reader because subsequent amendments do not affect the
sections pertinent to our analysis.

State v. Christensen
20130351-CA 8 2014 UT App 166
¶ 17, 12 P.3d 92. Without any evidence that Beckstead’s estimate
was inaccurate, Christensen’s ineffective assistance claim is
‚speculative,‛ not ‚a demonstrable reality,‛ and must therefore
be denied. See Fernandez v. Cook, 870 P.2d 870, 877–78 (Utah
1993).
¶18 We are also not persuaded that there would have been
any merit to a foundation objection had trial counsel raised one,
and the ‚*f+ailure to raise futile objections does not constitute
ineffective assistance of counsel.‛ State v. Kelley, 2000 UT 41,
¶ 26, 1 P.3d 546. Beckstead was a fact witness offering lay
testimony in the form of an estimate of the value of property
stolen and damaged in the course of the crime. Lay testimony is
admissible if there is evidence ‚sufficient to support a finding
that the witness has personal knowledge of the matter.‛ Utah R.
Evid. 602. Where a lay witness gives an estimate or an opinion, it
must be ‚rationally based on the witness’s perception,‛ ‚helpful
to clearly understanding the witness’s testimony or to
determining a fact in issue,‛ and ‚not based on scientific,
technical, or other specialized knowledge.‛ Id. R. 701.
¶19 After carefully reviewing the trial transcripts and
evidence in the record, we are unable to conclude that
Beckstead’s estimate lacked an adequate evidentiary foundation.
Courts routinely allow owners to estimate the value of their
property unless it appears that the owner has no ‚realistic idea
of its value.‛ See Utah State Road Comm’n v. Steele Ranch, 533 P.2d
888, 891 (Utah 1975). An owner’s property manager may do the
same provided she is sufficiently familiar with the property’s
cost and condition. State v. Purcell, 711 P.2d 243, 245 (Utah 1985).
In Purcell, the Utah Supreme Court rejected a sufficiency
challenge to a conviction for stealing furniture from an
apartment complex even though the only evidence of the
furniture’s value was an estimate from the apartment manager.
Id. The court noted that because the apartment manager was
‚familiar with the cost and condition‛ of the stolen property,
‚*h+is situation was sufficiently analogous to that of an owner to

State v. Christensen
20130351-CA 9 2014 UT App 166
permit him to testify regarding the value of the property under
his supervision.‛ Id.
¶20 Here, Beckstead’s testimony established that, as the
general manager, he was familiar enough with WWC’s day-to-
day finances to be able to estimate the value of the stolen cash
and checks. Beckstead testified that typical weekend earnings for
WWC were $20,000 and that none of the cash or checks from
Sunday had been removed from the cash drawer prior to the
burglary Monday morning. He also testified that his managerial
duties included keeping financial records, managing expenses
and income, and handling ‚all other operations with regard to
the business.‛ The State certainly could have strengthened
Beckstead’s testimony with actual financial records detailing
WWC’s average revenue for a typical November weekend. But
Beckstead’s testimony demonstrated that he was familiar
enough with the company’s finances to estimate how much
money was left in the register Monday morning. We therefore
cannot conclude that Beckstead’s estimate was speculative and
not based on his own personal knowledge, so opposing its
admission into evidence would have been futile. And for similar
reasons, it was also not plain error for the court to allow
Beckstead’s estimate to be submitted to the jury as evidence. See
State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993) (noting that
plain error requires a defendant to show, among other things,
that an error ‚should have been obvious to the trial court‛).
B. Third Degree Felony Criminal Mischief
¶21 Criminal mischief is a third degree felony ‚if the actor’s
conduct . . . causes pecuniary loss equal to or in excess of $1,500
but is less than $5,000 in value.‛ Utah Code Ann. § 76-6-
106(3)(b)(ii) (LexisNexis 2012). If the defendant causes a loss
‚less than $500 in value,‛ criminal mischief is a class B
misdemeanor. Id. § 76-6-106(3)(b)(iv). Beckstead estimated the
replacement cost of the damaged gate at $1,600, and he testified
that the broken window cost $280 to replace. On appeal,
Christensen argues that Beckstead’s estimate of the gate’s value

State v. Christensen
20130351-CA 10 2014 UT App 166
was ‚inconclusive and speculative,‛ based only on his
‚unspecified ‘experience in steel fabrication’ for which there was
no foundation.‛ Further, he contends, Beckstead was not
competent to testify about the value of the gate in the first place
because he was a fact witness, not ‚an expert witness in steel
fabrication or in metal gate valuation.‛ We conclude that failing
to object to the estimate’s foundation was not deficient
performance and that the trial court did not commit plain error
by allowing the jury to consider it.
¶22 As we have discussed, property owners are ‚competent to
testify on the present market value‛ of their property, and so is a
property manager who is sufficiently familiar with ‚the cost and
condition‛ of his employer’s property. Purcell, 711 P.2d at 245.
Additionally, ‚*s+imply because a question might be capable of
scientific determination, helpful lay testimony touching on the
issue and based on personal observation does not become‛ an
inadmissible expert opinion. State v. Ellis, 748 P.2d 188, 191 (Utah
1987). Here, Beckstead’s duties as manager of WWC were
expansive, encompassing financial management, accounting,
human resources, and general maintenance throughout the
property. He testified that the cost to replace the gate was $1,600,
and that while WWC paid someone less than that to make it
functional, ‚the plan was to replace it.‛3 He also based his
3. Christensen seems to argue that because WWC had not yet
replaced the gate, the proper measure of damages is whatever
the company paid to repair it, not the full replacement cost that
Beckstead estimated. But the criminal mischief statute provides
that the value of damaged property is ‚the measureable cost to
replace or restore,‛ Utah Code Ann. § 76-6-106(4) (LexisNexis
2012) (emphasis added), and Beckstead’s testimony suggested
that the repair that had been made to the gate was a temporary
one in anticipation of replacement. While the general rule of
recovery for damaged property contemplates that the value will
be set at the lesser of the cost of repair or replacement, see Ault v.
Dubois, 739 P.2d 1117, 1120 (Utah Ct. App. 1987), that rule
(continued . . .)

State v. Christensen
20130351-CA 11 2014 UT App 166
estimate on prior experience in ‚steel fabrication.‛ Although
Christensen may be correct that an expert witness or one of the
company’s owners may have been able to provide more detail
about the gate’s value or the cost to repair it, that does not mean
Beckstead’s extensive managerial responsibilities, which he
characterized as ‚all purpose, anywhere . . . on the property,‛
were insufficient to acquaint him with the condition and value of
the gate.
¶23 But even if the record is inconclusive as to whether
Beckstead was familiar with the cost of the gate or deficient in
establishing his experience in steel fabrication, trial counsel may
have known that Beckstead could establish an adequate
foundation on both issues if challenged, and he reasonably
elected to focus his attention elsewhere. See Harrington v. Richter,
131 S. Ct. 770, 788 (2011). Christensen has not pointed to any
evidence in the record that contradicts this possibility, and we
must presume that counsel had a legitimate reason for his
applies only where there is evidence that repair can provide an
equivalent item at a lesser cost. Christensen has not pointed to
any evidence in the record that replacement was not warranted
by the damage Christensen did to the gate, and WWC’s plans to
replace the gate suggest otherwise. Further, trial counsel may
have known there was evidence to support the choice to use the
replacement cost, so he did not perform deficiently by failing to
challenge it. See State v. Litherland, 2000 UT 76, ¶ 17, 12 P.3d 92
(‚Where the record appears inadequate in any fashion,
ambiguities or deficiencies resulting therefrom simply will be
construed in favor of finding that counsel performed
effectively.‛). And because there is no clear evidence in the
record that using the gate’s replacement cost was inappropriate,
the trial court had no duty to intervene. See State v. Powell, 2007
UT 9, ¶ 43, 154 P.3d 788 (rejecting a plain error claim because
‚given the paucity‛ of pertinent information in the record, even
if the court committed an error, ‚it was far from obvious‛).

State v. Christensen
20130351-CA 12 2014 UT App 166
choices where a plausible explanation for his choices can be
posited. See State v. Litherland, 2000 UT 76, ¶ 17, 12 P.3d 92.
Accordingly, we cannot say that Christensen’s attorney
performed deficiently by failing to object to the estimate. And
because Beckstead’s managerial responsibilities were so broad—
including general maintenance throughout the property—
allowing the jury to consider the estimate was not plain error.
See Dunn, 850 P.2d at 1208 (noting that an error must ‚have been
obvious to the trial court‛ to sustain a claim of plain error).
II. Prosecutorial Misconduct
¶24 Christensen also argues that the ‚prosecutor committed
harmful misconduct‛ by (1) bolstering ‚the credibility of a
witness that *the prosecutor+ agreed was not credible,‛
(2) ‚argu*ing+ matters not in evidence,‛ and (3) ‚improperly
suggest[ing] that the State does not prosecute people who are
innocent.‛ To prevail on a prosecutorial misconduct claim, a
defendant must show that (1) ‚the actions or remarks
of . . . counsel call to the attention of the jury a matter it would
not be justified in considering‛ and (2) absent the prosecutor’s
misconduct, ‚there is a reasonable likelihood that . . . there
would have been a more favorable result.‛ State v. King, 2010 UT
App 396, ¶ 21, 248 P.3d 984 (first omission in original) (citation
and internal quotation marks omitted).4 Christensen
4. The parties disagree about who has the burden to show
prejudice and how high the standard is in these circumstances.
Christensen argues that ‚*o+nce prosecutorial misconduct is
established, the burden shifts to the State to prove the error was
harmless beyond a reasonable doubt.‛ The State maintains that
‚*t+he harmless-beyond-a-reasonable-doubt standard applies
only to prosecutorial comments that touch on certain
constitutional rights, such as the right against self-
incrimination.‛ We have recently acknowledged ambiguities in
the case law on this point, see, e.g., State v. Wright, 2013 UT App
(continued . . .)

State v. Christensen
20130351-CA 13 2014 UT App 166
acknowledges that this claim is unpreserved, but he argues that
the prosecutor’s statements were so improper that trial counsel
provided ineffective assistance by failing to object and that the
trial court committed plain error when it elected not to intervene
sua sponte. We conclude that none of the three statements at
issue constitutes prosecutorial misconduct.
A. Bolstering
¶25 Christensen first contends that the prosecutor
inappropriately bolstered the credibility of a witness whose
testimony undermined Christensen’s alibi. During Christensen’s
initial meeting with investigators, he claimed that he was
visiting Friend in Lehi at the time of the burglary. Police called
Friend to check on Christensen’s story. She stated that
Christensen woke her up sometime between 2:30 and 3:30 a.m.
on the date in question and stayed for ten minutes before leaving
in a white truck. Five months later in a face-to-face interview,
however, Friend admitted that she had lied previously and told
a detective that Christensen ‚never, ever stopped by the house.‛
At the time of that interview, she claimed Christensen had asked
her to lie to police, but when questioned at trial, she testified that
a mutual friend asked her to fabricate the alibi. ‚*T+he only
reasonable conclusion one can draw from *Friend+’s statements,‛
Christensen argues, ‚is that she is a liar.‛ But the prosecutor told
the jury during his closing argument that Friend ‚understands
the seriousness of committing perjury, testifying falsely in a
court of law,‛ and she therefore ‚has no reason to lie‛ at trial.
This statement, Christensen maintains, ‚improperly bolstered
the State’s case while conveying that Christensen lied about his
alibi.‛
¶26 ‚It is true that a prosecutor engages in misconduct when
he or she expresses a personal opinion or asserts personal
142, ¶ 41 n.6, 304 P.3d 887, but because we determine that no
misconduct occurred here, prejudice is not at issue.

State v. Christensen
20130351-CA 14 2014 UT App 166
knowledge of facts.‛ State v. Bakalov, 1999 UT 45, ¶ 57, 979 P.2d
799. But no rule prohibits prosecutors from drawing
‚permissible deductions from the evidence and mak*ing+
assertions about what the jury may reasonably conclude from
those deductions.‛ Id. In fact, we accord counsel ‚for each
side . . . considerable latitude‛ to ‚discuss fully his or her
viewpoint of the evidence and the deductions arising
therefrom.‛ State v. Dunn, 850 P.2d 1201, 1223 (Utah 1993). For
example, in State v. Cummins, this court rejected a prosecutorial
misconduct claim where the prosecutor told the jury that a
witness had no motive to lie, described the witness’s story as
‚the best that they could remember,‛ and characterized the
witness’s testimony as ‚what *the witness+ honestly remembered
happening.‛ 839 P.2d 848, 854 n.14 (Utah Ct. App. 1992). We
noted that these statements ‚were no more than reasonable
inferences based upon the demeanor of the witness and the fact
that, before testifying, the witness was required to take an oath
of honesty.‛ Id. at 854.
¶27 Here also, the prosecutor’s assertion that Friend had ‚no
reason to lie‛ was a reasonable inference from the evidence, even
if it was not the only one. At trial, Friend acknowledged that she
had lied to police in interviews before trial, but she insisted that
her trial testimony was truthful because she understood the
consequences of ‚giving a false statement under oath‛ and lying
to investigators. She also explained that when investigators
interviewed her in person to confirm Christensen’s alibi, she
‚found out it was more than just something that was going to be
brushed under the rug‛ and she ‚didn’t want to have to lie
about it.‛ The prosecutor highlighted those statements in his
closing argument and told the jury they supported Friend’s
credibility:
[Friend] talked about how she understands the
seriousness of lying to police[,] . . . which she has
testified she did.
She understands the seriousness of
committing perjury, testifying falsely in a court of

State v. Christensen
20130351-CA 15 2014 UT App 166
law. *Friend+ has no reason to lie. She doesn’t get
anything from this except potentially subjecting
herself to maybe obstruction of justice or
potentially perjury. There is no reason for her to lie.
¶28 Christensen, of course, viewed the evidence differently,
and his trial counsel argued that the jury had no reason to
believe Friend, highlighting a prior forgery conviction and
numerous inconsistencies in her testimony and her statements to
police. In rebuttal, the prosecutor reiterated that despite the
inconsistencies, Friend ‚was constant . . . about [the] bottom line
when she came forward in April. . . . [W]hen push came to shove
and she was going to have to appear in court, she was going to
tell the truth, and she testified about that today. She has no
reason to lie.‛
¶29 Considered in the context of Friend’s testimony as a
whole, the prosecutor’s statements were not improper; the
prosecutor did not state his personal beliefs or improperly call
the jury’s attention to facts not in evidence. Each statement about
Friend’s credibility was a reasonable inference from her own
account of why she lied to police initially and what prompted
her to come clean before trial. See Bakalov, 1999 UT 45, ¶ 57
(rejecting a prosecutorial misconduct claim because the
prosecutor merely argued ‚what the jury should infer from the
evidence during their deliberations‛ without stating his personal
beliefs). Consequently, any objection to these statements would
have been futile, see State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546,
and there was no obvious error that required the court to
intervene, see Dunn, 850 P.2d at 1208–09.
B. Facts Not in Evidence
¶30 Christensen next asserts that the prosecutor ‚urged jurors
to consider matters not in evidence.‛ The statements he finds
troubling occurred when the prosecutor addressed Christensen’s
theory that Beckstead himself may have staged the burglary but
that investigators were ‚lazy‛ and failed to realize that

State v. Christensen
20130351-CA 16 2014 UT App 166
Beckstead was a potential suspect. Christensen’s trial counsel
pointed out that Beckstead failed to lock up the cash and checks
in WWC’s safe, knew surveillance cameras were not working the
night of the burglary, was aware financial data had not been
backed up for weeks, and had ‚access to all of the financials, all
of the cash, the safe and the business.‛ Despite these facts,
Christensen’s attorney argued, police ‚did not investigate Mr.
Beckstead‛ and they were dismissive at trial when asked why he
was never a suspect. In response, the prosecutor argued that if
Beckstead wanted to steal from his employer, he had options far
more lucrative than staging a burglary:
If Brian Beckstead’s going to steal from Wasatch
Wing & Clay, he is going to do it through
embezzlement.
He is going to take some here, here a little,
there a little, skim it, or he’s just going to simply
explain to the owners in one of his reports that they
had a down week, or a down weekend and he is
going to pocket thousands and thousands of
dollars.
There is absolutely no need for him to stage
some burglary and . . . jeopardize his job over
$6500 worth of property and then some damage to
it. That’s—that’s speculation.
Christensen argues that these statements were improper because
‚*t+here was no evidence that it would have been easier for
Beckstead to embezzle from his employer rather than‛ exploit
his managerial position by ‚staging [a] burglary.‛
¶31 As we have discussed, prosecutors may draw
‚permissible deductions from the evidence and make assertions
about what the jury may reasonably conclude from those
deductions,‛ see State v. Bakalov, 1999 UT 45, ¶ 57, 979 P.2d 799,
but they cannot make any assertions ‚based on facts not
admitted in evidence,‛ State v. Davis, 2013 UT App 228, ¶ 19, 311
P.3d 538. The prosecutor here did not cross the line. First,

State v. Christensen
20130351-CA 17 2014 UT App 166
Beckstead’s testimony established that he had extensive access to
all of WWC’s financial records. Not only did he manage WWC’s
finances, Beckstead was also in charge of periodically backing up
the company’s financial information on an external hard drive
he kept at his home. Beckstead made deposits for the company,
prepared monthly financial reports for its owners, and he knew
November was the company’s busiest month. And at trial, when
the prosecutor asked a detective involved in the investigation
whether he could ‚think of a simpler way‛ than burglary for
Beckstead to ‚have stolen from the business,‛ the detective
answered, ‚Yes.‛ The prosecutor highlighted all of this evidence
in his closing argument and asserted that Beckstead’s extensive
managerial responsibilities presented a much more attractive
opportunity for theft than staging a petty burglary:
We know [Beckstead] controlled the books,
he took the money in, he—he made the
expenditures, he would take the money personally
from the clients, you know, he was in control of the
entire establishment essentially, and then he
reported to the owners.
This was during the very busiest season of
the year, he talked about tens of thousands of
dollars that’s being made. If Brian Beckstead’s
going to steal from Wasatch Wing & Clay, he is
going to do it through embezzlement.
¶32 These statements were consistent with the trial testimony
or amounted to inferences from facts in evidence. See Bakalov,
1999 UT 45, ¶ 59 (noting that prosecutors ‚may fully discuss
with the jury reasonable inferences and deductions drawn from
the evidence‛). Christensen may be correct that there was no
direct testimony that Beckstead could have exploited his position
to embezzle funds from the company. But the detective’s
opinion that Beckstead had an easier way to steal from WWC
besides staging a burglary and Beckstead’s own testimony about
his extensive managerial responsibilities, along with the
implication that he was not carefully supervised, supported a

State v. Christensen
20130351-CA 18 2014 UT App 166
reasonable inference that embezzlement might be both less risky
and more lucrative than stealing some cash and property and
disguising it as a burglary.
¶33 Moreover, the jurors were specifically instructed that
‚lawyers[’] statements and arguments are not evidence‛ and that
‚*i+n reaching a verdict,‛ they should only consider ‚exhibits
admitted into evidence,‛ witness testimony, and ‚reasonable
inferences from that evidence.‛ Without circumstances
suggesting otherwise, ‚courts presume that the jury follows such
instructions.‛ State v. Campos, 2013 UT App 213, ¶ 62, 309 P.3d
1160 (citation and internal quotation marks omitted). And we see
no reason why the jury would have mistaken the prosecutor’s
closing argument for factual evidence. Consequently, trial
counsel did not perform deficiently for failing to raise a likely
futile objection, see Kelley, 2000 UT 41, ¶ 26, and the trial court
did not commit plain error by failing to intervene, see Dunn, 850
P.2d at 1208–09.
C. The Prosecutor’s Comment that the State Has No Interest
in Convicting the Innocent
¶34 Christensen also argues that the prosecutor improperly
‚told the jury that the ‘State has no interest in convicting anyone
that’s innocent.’‛ This statement, he asserts, ‚conveyed to the
jury the State’s belief that Christensen was guilty, suggesting
that if he was not guilty, he would not have been subject to
prosecution.‛ And he maintains that ‚*h+ad counsel objected to
the prosecutor’s statement and requested a curative instruction,‛
‚there is a reasonable probability that the outcome would have
been different.‛
¶35 Because prosecutors represent the State in criminal
proceedings, they carry ‚a special aura of legitimacy about
*them+,‛ infusing their opinions with ‚the imprimatur of the
Government.‛ Cargle v. Mullin, 317 F.3d 1196, 1218 (10th Cir.
2003) (citations and internal quotation marks omitted). Thus,
whenever a prosecutor expresses a personal opinion on any

State v. Christensen
20130351-CA 19 2014 UT App 166
issue—especially the defendant’s guilt—there is a serious risk of
conveying ‚the impression that evidence not presented to the
jury, but known to the prosecutor, supports the charges against
the defendant,‛ jeopardizing ‚the defendant’s right to be tried
solely on the basis of the evidence presented to the jury.‛ State v.
Davis, 2013 UT App 228, ¶ 102, 311 P.3d 538 (citation and
internal quotation marks omitted). Here, the State concedes that
‚*t+aken in isolation, the prosecutor’s comment may have had
this effect.‛ ‚But when viewed in context,‛ the State argues, ‚the
comment was not intended to, nor did it have the effect
of, . . . expressing an exploitive personal opinion in the form of
unsworn testimony.‛ (Citations and internal quotation marks
omitted.) While we agree with Christensen that the statement
appears troubling in isolation, we also agree with the State that it
was not misconduct when considered in the full context of the
prosecutor’s closing argument.
¶36 When reviewing a prosecutorial misconduct claim, we do
not consider the propriety or prejudicial effect of each statement
in a vacuum. Rather, a prosecutor’s statements during closing
argument are best understood ‚in context of the arguments
advanced by both sides as well as in context of all the evidence.‛
State v. Bakalov, 1999 UT 45, ¶ 56, 979 P.2d 799. For example, in
State v. Redcap, we rejected a defendant’s claim that the
prosecutor had ‚characterized the defense witnesses as zoo
animals who lived in cages and were governed by zoo rules and
called them convicts and criminals who should be sent to an
island to have at each other because they get what they deserve.‛
2014 UT App 10, ¶¶ 45, 49, 318 P.3d 1202 (internal quotation
marks omitted). We noted that ‚*r+ead in context, the
prosecutor’s comments did not advocate . . . sending [the
defendant+ or his witnesses to an island to ‘get what they
deserve.’‛ Id. ¶ 47. Rather, ‚*t+he prosecutor was in fact making
the opposite point: that [the defendant] and the other inmates
should not be left to fend for themselves in a lawless prison
environment, but rather that life in prison, like life outside of it,
must be governed by rules.‛ Id.

State v. Christensen
20130351-CA 20 2014 UT App 166
¶37 Christensen relies on Cargle v. Mullin, 317 F.3d 1196 (10th
Cir. 2003), for the proposition that ‚it is always improper to
suggest a defendant is guilty merely because he’s being
prosecuted.‛ However valid that principle may be in general, the
context of the prosecutor’s statements show he made no such
suggestion. Rather, he was emphasizing the State’s high burden
of proof in criminal cases, not offering a personal opinion about
Christensen’s guilt or innocence:
I’m just about to conclude . . . my closing
argument here, and I’ll have a chance to speak
again, because the State, we carry the burden of
proof.
It’s a burden of proof that we welcome. We
understand that it’s proof beyond a reasonable
doubt. The State has no interest in convicting
anyone that’s innocent. So the proof must be—it
must be beyond a reasonable doubt.
¶38 Contrasting these remarks with the statements at issue in
Cargle is instructive. In that case, the prosecutor told the jury that
‚all we want is justice . . . . *W+hat in the world have I or
[assistant district attorney+ Mrs. Smith or the D.A.’s Office or the
police department got to gain by even trying to convict an
innocent person? It would destroy our credibility. . . . We don’t
do those things.‛ Id. at 1218 (first omission and alterations in
original) (citation and internal quotation marks omitted). The
Tenth Circuit recognized ‚the universal denunciation of this
type of argument‛ and held that the comments inappropriately
‚invoked *the State’s+ own professional expertise and the official
imprimatur of the State to influence the jury’s assessment of the
evidence.‛ Id. at 1218, 1221.
¶39 Here, by contrast, the prosecutor never argued that the
State only prosecutes people who are guilty or that his office
would have never brought charges unless Christensen had in
fact robbed the clubhouse. Rather, he reminded the jury that, as
a matter of public policy, the criminal justice system requires

State v. Christensen
20130351-CA 21 2014 UT App 166
proof beyond a reasonable doubt to avoid convicting the
innocent. Far from invoking state authority to improperly
influence the jury’s evaluation of the evidence, the prosecutor
embraced this high burden of proof and explained to the jury
why it should be so difficult to meet. This observation is far from
controversial. See, e.g., Schlup v. Delo, 513 U.S. 298, 325 (1995)
(‚Indeed, concern about the injustice that results from the
conviction of an innocent person has long been at the core of our
criminal justice system.‛); In re Winship, 397 U.S. 358, 372 (1970)
(Harlan, J., concurring) (‚I view the requirement of proof beyond
a reasonable doubt in a criminal case as bottomed on a
fundamental value determination of our society that it is far
worse to convict an innocent man than to let a guilty man go
free.‛); State v. Sullivan, 307 P.2d 212, 215 (Utah 1957) (‚The
presumption of innocence and the requirement of proof beyond
any reasonable doubt, are indeed of the utmost importance as
safeguards against the possibility of convicting the innocent.‛).
Accordingly, even though more careful wording would have
been preferable, the prosecutor’s efforts to articulate the State’s
heavy burden of proof in Christensen’s case did not amount to
misconduct. We therefore conclude that any objection would
have been unavailing, so Christensen’s trial counsel was not
deficient for failing to raise one, see State v. Kelley, 2000 UT 41,
¶ 26, 1 P.3d 546, and that there was no obvious error for the trial
court to correct on its own accord, see State v. Dunn, 850 P.2d
1201, 1208–09 (Utah 1993).
III. Cumulative Error
¶40 Finally, Christensen argues that when the prejudicial
effects of each of the errors he identifies ‚are viewed
cumulatively,‛ they ‚undermine confidence in the verdict.‛
‚Under the cumulative error doctrine, we will reverse only if the
cumulative effect of the several errors undermines our
confidence . . . that a fair trial was had.‛ State v. Kohl, 2000 UT 35,
¶ 25, 999 P.2d 7 (omission in original) (citation and internal
quotation marks omitted). But if there are no errors committed
by the court or trial counsel, we do not apply the cumulative

State v. Christensen
20130351-CA 22 2014 UT App 166
error doctrine. See id. Having rejected all of Christensen’s claims
of plain error and determined that his trial counsel’s
performance was not deficient, we conclude that the cumulative
error doctrine does not apply in this case.
CONCLUSION
¶41 We conclude that Beckstead’s estimates of the value of
WWC’s damaged and stolen property adequately support
Christensen’s convictions for second degree felony theft and
third degree felony criminal mischief. Consequently, it was not
plain error for the jury to consider the estimates, nor was failing
to challenge them deficient performance. We also conclude that
the prosecutor did not draw the jury’s attention to facts not in
evidence or improperly offer a personal opinion about the
credibility of a State witness or the Defendant’s innocence. We
therefore reject Christensen’s claims of plain error and
ineffective assistance of counsel.
¶42 Accordingly, we affirm.