State v. Mike

2025 UT App 163

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
WILLIAM PAUL MIKE,
Appellant.

Opinion
No. 20231100-CA
Filed November 13, 2025

Fifth District Court, Cedar City Department
The Honorable Ann Marie McIff Allen
No. 231500246

Benjamin Miller and Debra M. Nelson,
Attorneys for Appellant
Derek E. Brown and Hwa Sung Doucette,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.

ORME, Judge:

¶1 One evening, William Paul Mike and his sister (Sister) went
out drinking. But the night turned violent when, back at home,
Mike repeatedly punched Sister in the face. For this and
subsequent events, Mike was convicted of assault, intoxication,
and obstructing justice. On appeal, Mike argues that certain
witness testimony was improperly admitted at trial and that the
jury received an inadequate unanimity instruction for the
intoxication charge. But because Mike has not shown that he was
prejudiced with respect to any of his claims, we affirm.
State v. Mike

BACKGROUND 1

The Assault

¶2 In April 2023, Mike and Sister were staying at their
mother’s house while she was in hospice care. One night, Mike
and Sister went out drinking. They each consumed “excessive”
amounts of alcohol before separately returning to the house.

¶3 A little after 1:00 a.m., Sister, who arrived home first by
taxi, took selfies and sent them to some friends. When Mike
arrived shortly afterward, the two began talking. Mike took a
short video, timestamped at 1:20 a.m., of Sister laughing while
sitting on an armchair. Everything was “fine” until the
conversation turned to Mike’s children—“a touchy subject for
him.” Sister told Mike that he needed to step up to his fatherly
responsibilities and take a more active role in his children’s lives.
Mike responded by repeatedly punching Sister in the face. She
“blacked out” after the third punch.

¶4 The next thing Sister remembered was Mike dragging her,
fully clothed, by her hair and arm into the shower and turning it
on. Mike was angry because Sister “was bleeding all over the
place,” and he shouted, “[L]ook what you made me do.” When
Mike left the bathroom to fetch more towels to dry her off, Sister
took the opportunity to flee to a neighbor’s (Neighbor) house.

¶5 For the assault, and for other events described hereafter,
Mike was arrested and charged with one count each of aggravated
assault, intoxication, and obstructing justice.

1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Brown, 2025 UT App 31, n.1, 566 P.3d 737 (quotation simplified).

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State v. Mike

Neighbor’s Testimony

¶6 At the ensuing trial, Neighbor testified that on the night of
the assault, she was awakened around 2:00 a.m. by “urgent” and
“panic[ked]” knocks on her door and rings of her doorbell.
Neighbor’s doorbell camera recorded Sister’s arrival at the home,
and the video was played for the jury. Neighbor’s husband
answered the door and soon returned to the bedroom to inform
Neighbor that Sister was injured. Neighbor ran to the living room,
where she saw Sister “soaking wet” and with her face so swollen
that Neighbor “could barely see her eyes.” Neighbor also
observed marks on Sister’s arms and blood on her cheeks and
mouth. Neighbor was able to identify Sister only from her clothes,
which Neighbor had observed Sister wearing earlier that day.
Neighbor now observed that Sister’s clothes were “tattered” and
“disheveled,” as if “they had been pulled on.” Neighbor
described Sister as “extremely upset,” “crying,” and
“inconsolable,” to the point that Neighbor at first could not make
out what had happened.

¶7 When the State asked Neighbor whether Sister ever
disclosed what happened, Mike’s counsel (Counsel) objected on
hearsay grounds. The court ruled that the testimony was
admissible under the excited utterance exception to the rule
against hearsay. The court stated that based on Neighbor’s
doorbell camera recording, it was “apparent” that the challenged
hearsay statement was made while Sister “was under the stress or
excitement caused by the event or condition.” The court also
referenced the “proximity in time” between Sister’s statement to
Neighbor and the underlying events as supporting that
conclusion.

¶8 Neighbor then proceeded to testify, “[Sister] was more
concerned about us locking the door before she would . . . do
anything else we were asking of her.” But, Neighbor said, once
the door was locked and she sat down, Sister “explained that the

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reason she was wet [was] because her brother, [Mike], had beat
her up, and when he was done, he dragged her into their mom’s
handicapped bathroom and rinsed the blood off of her.” Neighbor
further testified that Sister told her that as soon as Mike left the
bathroom, “she escaped and ran straight to [Neighbor’s] house for
help.” Neighbor testified that she then called 911.

Officer’s Testimony

¶9 A responding police officer (Officer) also testified at trial.
He recounted that on the night of the assault, he spoke with Sister,
whom he described as “emotional,” “distraught,” and “crying.”
Officer testified that Sister told him that “her brother beat her up.”
Footage from Officer’s body camera in which Sister stated, “My
brother beat me up,” was also played for the jury. Officer testified
that following the conversation with Officer, Sister was taken to a
hospital by ambulance.

¶10 Officer testified that he then crossed the street to speak
with Mike. When he arrived, Mike was taking a video of the house
with his cellphone. Mike explained that he was “documenting
everything.” Upon further questioning, Mike gave inconsistent
accounts of what happened. He first stated that Sister “fell down.”
But when asked if he had caused Sister’s injuries, he was evasive
and did not give a straight “yes or no” answer. He eventually
stated that he “was being defensive,” and at another point, he said
that they “were wrestling.” This interaction was also recorded by
Officer’s body camera and played for the jury. Officer testified
that he noted blood on the sleeve of Mike’s shirt. He also observed
that the knuckles on Mike’s hand were “red or discolored,” which,
based on Officer’s training and experience, was “consistent with
using your fist to punch something.”

¶11 Officer said that Mike showed him the video he had taken
of Sister less than an hour earlier sitting on an armchair and
laughing. Officer noticed that some of the furniture, including the

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coffee table and armchair, were no longer in the same location as
they had been in the video. Upon further inspection, Officer found
blood under the newly-moved coffee table. When asked why he
had tried to hide the blood, Mike answered, “[T]hat’s the way it
was.” Officer also noticed a pool of water between the bathroom
and the hallway that “kind of streaks out,” suggesting that
“someone [ran] out of the shower soaking wet.”

¶12 Officer related that he then arrested Mike and placed him
in his patrol vehicle. At this point, Mike’s demeanor changed. In
addition to Officer’s testimony about what transpired in the
vehicle, footage from the vehicle’s camera was played for the jury.
Officer recounted that Mike spit his gum at a closed window in
the direction of Officer and another officer, and that he kissed the
camera. Mike also stated that he had COVID-19 and coughed at
the officers. Officer also testified that Mike asked, “[W]hat can I
get for . . . assault on a peace officer?” Counsel promptly objected,
arguing that because Mike was not charged with assaulting a
peace officer, the testimony was “irrelevant and immaterial to this
case” and was “pejorative.” The State countered that this
statement was already admitted through the vehicle’s video
recording and that it was relevant to proving all three charges.
The trial court overruled the objection. Officer then explained—
again over Counsel’s objection, which the court also overruled—
that Mike’s question about the consequences of assaulting a peace
officer was noteworthy because, based on Officer’s training and
experience, “when someone asks that, they’re not afraid to do it
. . . . And it is an officer safety issue at that point, too.”

¶13 Lastly, Officer opined that, based on his training and
experience, Sister’s injuries were inconsistent “with just falling
down.” Rather, he testified that they were consistent with “being
hit in the face . . . repeatedly.” Counsel did not object to this
testimony.

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State v. Mike

Doctor’s Testimony

¶14 The State also presented the testimony of an emergency
room physician (Doctor) who treated Sister at the hospital. Doctor
testified that Sister was “clinically intoxicated,” with a blood
alcohol level of .286. Doctor observed “a significant amount of
swelling” to Sister’s forehead and the left side of her face, as well
as a cut on her right cheek. She also had a ruptured eardrum.
Doctor testified that Sister told him that “she had been beaten up
by her brother, and that he had grabbed her, and they had gotten
into a fight.”

¶15 Doctor testified that Sister’s injuries were “consistent” with
her being “struck” or “punched in the face.” He further opined
that based on the number and locations of the injuries to her face,
“[i]t would be rare” for them to be caused by a fall. But on
cross-examination, he acknowledged that the injuries could have
been caused by multiple falls. As for the ruptured eardrum,
Doctor stated that such injuries are “[g]enerally not” caused by
falls.

Jury Instructions, Closing Arguments, and Conviction

¶16 As relevant to this appeal, the jury instructions directed
that to convict Mike on the intoxication charge, the jury was
required to find that he “was under the influence of alcohol to a
degree that he may have endangered himself or another in a
public place or in a private place where he unreasonably
disturbed other persons.”

¶17 During closing argument, the State asserted, for purposes
of the aggravated assault charge, that Sister “did not slip and fall.”
Instead, the State argued, Sister’s comments about Mike’s
children hurt his pride and “he took all of his anger out on
[Sister’s] face,” which he did “until his knuckles were red” and
her “face was swollen” to the point that “her eyes were nearly

20231100-CA 6 2025 UT App 163
State v. Mike

shut.” The State countered Mike’s contention that Sister’s injuries
were caused by drunken falls by stating that this explanation was
inconsistent with the video Mike took of her; that such falls would
presumably also cause bruising to Sister’s legs and knees, which
she did not have; and that Doctor testified that it would be “rare”
for such injuries to be caused by falls. The State also suggested
that Mike’s “question about assaulting a peace officer after he was
arrested [was] indicative of his assaultive intent.”

¶18 For the obstructing justice charge, the State argued that
Mike repeatedly lied to responding officers, including telling
them that the furniture had not been moved that night.
Additionally, the State asserted that in moving the furniture, it
was Mike’s “intent to cover up the blood to hinder [the]
investigation.”

¶19 Lastly, for the intoxication charge, the State urged that,
among other things, Mike’s behavior in the patrol vehicle showed
that he was under the influence of alcohol. Specifically, the State
pointed to Mike spitting his gum at the closed window, asking
about the consequences of assaulting a peace officer, and kissing
the camera. The State then told the jury that Mike “unreasonably
disturbed [Sister] in their mother’s home . . . by assaulting her.”

¶20 During closing argument for the defense, Counsel
emphasized the high level of Sister’s intoxication and argued that
her injuries were sustained from her “falling down all over the
place” in a drunken stupor. He also suggested that Sister “may
have inflicted some of these injuries on herself intentionally to get
[Mike] in trouble.”

¶21 The jury convicted Mike on the obstructing justice and
intoxication charges. As for the aggravated assault charge, the
jury convicted him of assault—a lesser included offense. Mike
appeals.

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State v. Mike

ISSUES AND STANDARDS OF REVIEW

¶22 Mike raises two preserved evidentiary challenges: (1) the
trial court admitting Officer’s testimony regarding Mike’s
question about assaulting a peace officer was error because it
constituted inadmissible “other acts” evidence and (2) the trial
court admitting, under the excited utterance exception,
Neighbor’s account of what Sister told her had happened was
error. “The appropriate standard of review for a district court’s
decision to admit or exclude evidence is abuse of discretion.” State
v. Zimpfer, 2024 UT App 136, ¶ 31, 558 P.3d 111 (quotation
simplified). Additionally, the appellant “bears the burden of
showing that [he] was harmed by the trial court’s error.” State v.
West, 2023 UT App 61, ¶ 15, 532 P.3d 114 (quotation simplified).

¶23 Mike also raises two unpreserved issues: (1) Officer
impermissibly opined on the cause of Sister’s injuries and (2) the
jury was not properly instructed on Utah’s constitutional jury
unanimity requirement. He asks us to review both issues under
the ineffective assistance of counsel and plain error exceptions to
our preservation rule. “Claims for plain error and ineffective
assistance of counsel present questions of law, which we evaluate
for correctness.” State v. Samora, 2022 UT App 7, ¶ 16, 504 P.3d
195, cert. denied, 525 P.3d 1254 (Utah 2022).

ANALYSIS

I. Other Acts Evidence

¶24 Rule 404(b) of the Utah Rules of Evidence provides that
“[e]vidence of a crime, wrong, or other act is not admissible to
prove a person’s character in order to show that on a particular
occasion the person acted in conformity with the character.” Utah
R. Evid. 404(b)(1). The rule articulates the “fundamental [concept]
in our law that a person can be convicted only for acts committed,

20231100-CA 8 2025 UT App 163
State v. Mike

and not because of general character or a proclivity to commit bad
acts.” State v. Lane, 2019 UT App 86, ¶ 17, 444 P.3d 553 (quotation
simplified). But other acts evidence “may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident,” Utah R. Evid. 404(b)(2), so long as certain
requirements are met, see State v. Von Niederhausern, 2018 UT App
149, ¶ 17, 427 P.3d 1277.

¶25 Mike argues that Officer’s testimony recounting his
question, “[W]hat can I get for . . . assault on a peace officer?”
constituted impermissible other acts evidence. He contends
Officer’s testimony was not probative of a noncharacter purpose
for the assault, intoxication, or obstructing justice charges. Rather,
he asserts that the purpose of its admission “was to establish his
propensity to commit crime.” But even assuming, without
deciding, that the trial court abused its discretion in allowing
Officer’s testimony on this matter, any such error was harmless.

¶26 “An error is harmless and does not require reversal if it is
sufficiently inconsequential that we conclude there is no
reasonable likelihood that the error affected the outcome of the
proceedings.” State v. Reece, 2015 UT 45, ¶ 33, 349 P.3d 712
(quotation simplified). See Utah R. Crim. P. 30(a) (“Any error,
defect, irregularity or variance which does not affect the
substantial rights of a party shall be disregarded.”). Put
differently, to prevail on appeal, the appellant must show that
“the likelihood of a different outcome absent the error must be
sufficiently high to undermine confidence in the verdict.” Reece,
2015 UT 45, ¶ 33 (quotation simplified). Here, we are not
convinced that there is a reasonable likelihood that even if the
challenged testimony had been excluded, Mike would have
obtained a more favorable verdict at trial.

¶27 Despite Mike’s assertions to the contrary, the jury’s finding
that Mike repeatedly punched Sister in the face, which formed the

20231100-CA 9 2025 UT App 163
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basis for his assault and intoxication convictions, was amply
supported by the evidence. As was also his obstructing justice
conviction. See id. (“Errors are often harmless where there is
overwhelming evidence in the record of the defendant’s guilt.”);
State v. Hatch, 2025 UT App 132, ¶ 12 (“Courts are generally more
readily inclined to conclude errors are harmless when confronted
with overwhelming evidence of the defendant’s guilt.”)
(quotation simplified). Sister sustained multiple injuries. Her face
was so swollen that Neighbor “could barely see her eyes.”
Neighbor also observed marks on Sister’s arms and that her
cheeks and mouth were bleeding. Neighbor testified she was able
to recognize Sister only because of her clothes. At the hospital,
Doctor noted “a significant amount of swelling” to Sister’s
forehead and the left side of her face, a cut on her right cheek, and
a ruptured eardrum.

¶28 Doctor opined that Sister’s injuries were “consistent” with
her being “struck” or “punched in the face,” and that based on the
number and locations of the injuries on her face, “[i]t would be
rare” for such injuries to be caused by a fall. Although Mike points
to Doctor’s later concession that the injuries could have been
caused by multiple falls, when coupled with Doctor’s additional
testimony that ruptured eardrums are “[g]enerally not” caused by
falls, Doctor’s testimony strongly supports the conclusion that
something other than a fall—or even multiple falls—caused
Sister’s injuries.

¶29 The assault conviction is supported by other physical
evidence as well. Blood was found on the sleeve of Mike’s shirt,
and the knuckles on his hand were “red or discolored” soon after
the incident, suggesting that he had punched something.
Additionally, footage from Officer’s body camera, when
compared to the video of Sister that Mike took, showed that some
of the furniture had been rearranged in the less-than-one-hour
period between the two videos. When Officer found blood under
the coffee table, Mike insisted that the table had not been moved,

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State v. Mike

stating, “[T]hat’s the way it was.” The act of moving the furniture
and the later denial of having done so are suggestive of Mike’s
guilt for assault—there is little reason for Mike to have done so if
Sister had merely fallen—as well as his guilt for obstructing
justice. And although Mike’s version of events changed
throughout his conversation with Officer, when asked whether he
had caused Sister’s injuries, he at certain points appeared to
acknowledge some sort of physical altercation with Sister, stating
that they “were wrestling” and that he “was being defensive.”

¶30 All this evidence overwhelmingly and independently
supports Sister’s account that Mike repeatedly punched her in the
face and that he moved around the furniture to hinder the
investigation. Accordingly, we cannot say that the outcome of the
trial would have been any different if the trial court had excluded
Officer’s testimony about the question Mike posed in the police
vehicle.

II. Excited Utterance Exception

¶31 Hearsay is an out-of-court statement offered “to prove the
truth of the matter asserted in the statement.” Utah R. Evid. 801(c).
Unless a rule of evidence or law directs otherwise, hearsay is
inadmissible at trial. Id. R. 802. One such exception to the rule
against hearsay is the excited utterance exception. See id. R. 803(2).
For a statement to be admitted as an excited utterance, it must
relate “to a startling event or condition” and be “made while the
declarant was under the stress of excitement that it caused.” Id.

¶32 Mike argues that the trial court abused its discretion when
it overruled his objection to Neighbor’s testimony regarding what
Sister told her had happened. Specifically, Neighbor testified,

[Sister] was more concerned about us locking the
door before she would . . . do anything else we were
asking of her. Once we sat her down, she explained

20231100-CA 11 2025 UT App 163
State v. Mike

that the reason she was wet is because her brother,
[Mike], had beat her up, and when he was done, he
dragged her into their mom’s handicapped
bathroom and rinsed the blood off of her. And then
once he left that room, she escaped and ran straight
to our house for help.

Mike argues that this hearsay testimony could not qualify under
the excited utterance exception because “Sister’s statements were
interrupted from the claimed startling event.” But we need not
reach the merits of Mike’s argument because even if the trial court
abused its discretion in allowing this challenged testimony, the
error was harmless.

¶33 As an initial matter, as discussed above, see supra ¶¶ 27–30,
overwhelming evidence, aside from Neighbor’s testimony,
supported Mike’s convictions. This alone is a sufficient basis on
which to affirm.

¶34 Additionally, Neighbor’s testimony that Sister told her
Mike “beat her up” is cumulative of other unchallenged testimony
and other evidence offered at trial. See State v. Macleod, 2024 UT
App 32, ¶ 53, 546 P.3d 366 (“When testimony is merely
cumulative, we are usually disinclined to find prejudice even
when the testimony was improperly admitted. This is because
such testimony does not typically offer anything new or
additional to the evidentiary picture.”) (quotation simplified),
cert. denied, 558 P.3d 87 (Utah 2024); State v. Miranda, 2017 UT App
203, ¶ 47, 407 P.3d 1033 (“[W]hen erroneously admitted evidence
is cumulative of evidence already before the factfinder, the error
may be considered harmless.”), cert. denied, 417 P.3d 581 (Utah
2018). 2 Sister testified at trial that Mike punched her repeatedly in

2. Mike points to State v. Samples, 2022 UT App 125, 521 P.3d 526,
cert. denied, 525 P.3d 1279 (Utah 2023), in which this court
(continued…)

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State v. Mike

the face and dragged her into the shower. Additionally, both
Doctor and Officer recounted, absent objection, what Sister told
them had happened. Doctor testified that she told him “she had
been beaten up by her brother, and that he had grabbed her, and
they had gotten into a fight.” Officer testified that Sister told him
“her brother beat her up.” The jury also viewed body camera
footage of Sister telling Officer, “My brother beat me up.”

¶35 Mike asserts that Neighbor’s testimony was harmful
because it “bolster[ed] Sister’s credibility.” But in light of the
unchallenged testimony from two other witnesses, one of whose
testimony was additionally supported by video evidence, there is
no reasonable likelihood that the addition of Neighbor’s similar
testimony tipped the scales on Sister’s credibility. Moreover,
because of the he-said/she-said nature of their conflicting stories,
Mike’s own credibility issues—including his inconsistent
accounts and untruths told to Officer, all documented by Officer’s
body camera, combined with the physical evidence supporting
Sister’s version of events—significantly weaken his harmfulness
argument.

¶36 For these reasons, any abuse of discretion in admitting
Neighbor’s challenged testimony was harmless.

III. Unpreserved Issues

¶37 Mike additionally argues that Officer offered improper lay
testimony regarding the cause of Sister’s injuries and that the jury
was inadequately instructed on the unanimity requirement for the
intoxication charge. Because both of these issues are unpreserved,
Mike asks us to review them under the ineffective assistance of

“acknowledge[d] the possibility that repetition alone could
conceivably cause prejudice in certain circumstances.” Id. ¶ 75.
But for the reasons articulated in this section, the case before us
does not present such a circumstance.

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State v. Mike

counsel and plain error exceptions to our preservation rule. Both
exceptions require a showing of prejudice, which mirrors the
harmless error standard. See State v. McNeil, 2016 UT 3, ¶ 29, 365
P.3d 699 (“[T]he prejudice test is the same whether under the
claim of ineffective assistance or plain error.”); State v. Leech, 2020
UT App 116, ¶ 43 n.7, 473 P.3d 218 (“[T]he showing of prejudice
required to establish that preserved errors are harmful is
indistinguishable from the showing of prejudice required to
establish plain error or ineffective assistance of counsel for
unpreserved errors.”), cert. denied, 481 P.3d 1039 (Utah 2021); State
v. Ray, 2022 UT App 95, ¶ 50 n.17, 516 P.3d 329 (explaining that
the plain error standard for prejudice “mirrors” that of the
harmless error doctrine), cert. denied, 526 P.3d 827 (Utah 2022).
And as with his preserved issues, Mike cannot show that he was
prejudiced by these alleged errors.

A. Officer’s Opinion on the Cause of Sister’s Injuries

¶38 At trial, Officer opined, based on his training and
experience, that Sister’s injuries were consistent with “being hit in
the face . . . repeatedly” and not “with just falling down.” Mike
argues that this testimony did not satisfy the requirements of rule
701 of the Utah Rules of Evidence for lay opinion testimony. See
Utah R. Evid. 701(c) (noting that a witness “not testifying as an
expert” must offer “testimony in the form of an opinion” that is
“not based on scientific, technical, or other specialized
knowledge”). He asserts that “there is nothing in what a police
officer does in general or in Officer’s stated experience specifically
that would enable him to tell the jury his opinion as to what may
or may not have caused Sister’s injuries.”

¶39 But even assuming, without deciding, that this testimony
was improper, we are not convinced that Mike was prejudiced by
its admission. As discussed above, see supra ¶¶ 27–30, Mike’s
convictions were supported by overwhelming evidence,
including Doctor’s testimony—particularly regarding the nature

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of the injuries and the unlikelihood of a ruptured eardrum being
caused by a fall, the blood on Mike’s sleeve, his reddened
knuckles—and evidence of Mike moving furniture in the living
room to cover blood stains. Accordingly, this argument is also
unavailing. 3

B. Jury Unanimity

¶40 To satisfy the jury unanimity requirement of the Utah
Constitution, a verdict must be unanimous “as to a specific crime”
and “on all elements of a criminal charge.” State v. Hummel, 2017
UT 19, ¶¶ 28–29, 393 P.3d 314 (quotation simplified). See Utah
Const. art. I, § 10. It is insufficient for a jury to unanimously find
“only that a defendant is guilty of a crime” and render “a generic
‘guilty’ verdict that does not differentiate among various
charges.” Hummel, 2017 UT 19, ¶ 26 (emphasis in original;
quotation otherwise simplified). In cases where evidence is
presented of more distinct criminal acts than there are
corresponding charges, to ensure unanimity, “the jury
instructions must either (1) link an alleged criminal act to a charge
or (2) inform the jury that it must unanimously agree that the
same alleged criminal act has been proven beyond a reasonable
doubt.” State v. Gollaher, 2020 UT App 131, ¶ 32, 474 P.3d 1018,
cert. denied, 481 P.3d 1040 (Utah 2021).

3. Mike argues that the cumulative impact of this and the prior
two alleged errors undermines his convictions. Reversal is
warranted under the cumulative error doctrine if “(1) an error
occurred, (2) the error, standing alone, has a conceivable potential
for harm, and (3) the cumulative effect of all the potentially
harmful errors undermines [the appellate court’s] confidence in
the outcome.” State v. Martinez-Castellanos, 2018 UT 46, ¶ 42, 428
P.3d 1038. For the same reasons described above, our confidence
in the trial outcome withstands even the cumulative effect of all
three alleged errors.

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State v. Mike

¶41 Here, the jury instructions directed that a conviction on the
intoxication charge required a finding that Mike “was under the
influence of alcohol to a degree that he may have endangered
himself or another in a public place or in a private place where he
unreasonably disturbed other persons.” See Utah Code Ann.
§ 76-9-701(1) (LexisNexis Supp. 2024). 4 Mike argues that this
instruction was insufficient because the State presented evidence
of more than one alleged instance of him unreasonably disturbing
another. Specifically, Mike contends that the State presented
evidence that he unreasonably disturbed (1) Sister by assaulting
her; (2) Neighbor when Sister came knocking at her door at 2:00
a.m.; and (3) Officer when, while in the patrol vehicle, Mike spit
gum at the closed window, coughed at Officer while claiming to
have COVID-19, and asked about the punishment for assaulting
peace officers.

¶42 But even assuming error in the jury instructions, the State
alleviated any resulting prejudice during closing argument when
it clarified to the jury that Mike “unreasonably disturbed [Sister]
in their mother’s home . . . by assaulting her.” See State v.
Garcia-Lorenzo, 2022 UT App 101, ¶ 39, 517 P.3d 424 (“Jury
unanimity problems can sometimes be alleviated if the State
carefully identifies for the jury, in closing argument or elsewhere,
which act supported each charge.”) (quotation simplified), cert.
denied, 525 P.3d 1263 (Utah 2022); State v. Mottaghian, 2022 UT App
8, ¶ 58, 504 P.3d 773 (stating that the unanimity “problem could
have been alleviated . . . if the State had identified for the jury—in
closing argument, for instance—which act supported each
charge”) (quotation simplified), cert. denied, 525 P.3d 1256 (Utah
2022). Thus, while the evidence may well have supported another
variant of this charge, the only act that the State identified for the

4. Section 76-9-701 has since been renumbered as section 76-9-110.
For convenience, we cite the most recently published version of
the Utah Code.

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State v. Mike

jury as an unreasonable disturbance was Mike’s assault of Sister.
Additionally, during closing argument, the State made no
mention whatsoever of Neighbor in the context of discussing the
intoxication charge, and its reference to Mike’s behavior in
Officer’s vehicle was limited to its discussion of the “under the
influence of alcohol” element of the charge.

¶43 Moreover, even without the State’s clarification during
closing argument, we are not persuaded that Mike is likely to have
otherwise received a more favorable outcome. Given the jury’s
finding that Mike assaulted Sister by repeatedly punching her, the
jury certainly unanimously agreed on that same underlying
conduct when it convicted him on the intoxication charge. See
State v. Naranjo, 2023 UT App 131, ¶ 49, 538 P.3d 1278; State v. Case,
2020 UT App 81, ¶ 26, 467 P.3d 893, cert. denied, 474 P.3d 948 (Utah
2020). For these reasons, Mike was not prejudiced by any alleged
deficiency in the jury instructions.

CONCLUSION

¶44 Because Mike has not shown harmful error or prejudice for
any of the challenges he raises, we affirm his convictions.

20231100-CA 17 2025 UT App 163