harmfulness test in Utah

2018The harmfulness test in the context of the plain error analysis "is equivalent to the prejudice test applied in assessing claims of ineffective assistance of counsel." State v. Dean , 2004 UT 63 , ¶ 22, 95 P.3d 276 .

2018The harmfulness test in the context of the plain error analysis "is equivalent to the prejudice test applied in assessing claims of ineffective assistance of counsel." State v. Dean , 2004 UT 63 , ¶ 22, 95 P.3d 276 .

2015A convic- tion should only be reversed if this probability of a more favorable result is “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694 . ¶58 In this case, Mr. Barela asserted that he was innocent be- cause K.M. actively solicited a sexual encounter.

2015A convic- tion should only be reversed if this probability of a more favorable result is “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694 . ¶58 In this case, Mr. Barela asserted that he was innocent be- cause K.M. actively solicited a sexual encounter.

2016State v. Holgate, 2000 UT 74, ¶ 13 , 10 P.3d 346 (listing elements of plain error review as "(i) [aln error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful" (alteration in original) (citation omitted)). , We acknowledge that at oral argument, Mr. McNeil's appellate counsel-while certainly well prepared-believed that the record did not contain any discovery requests regarding the phone records, and the State did not dispute that issue.

2016State v. Holgate, 2000 UT 74, ¶ 13 , 10 P.3d 346 (listing elements of plain error review as "(i) [aln error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful" (alteration in original) (citation omitted)). , We acknowledge that at oral argument, Mr. McNeil's appellate counsel-while certainly well prepared-believed that the record did not contain any discovery requests regarding the phone records, and the State did not dispute that issue.

2015See State v. Dunn, 850 P.2d 1201, 1225 (Utah 1993) (“Th[e] prejudice test [for ineffective assistance of counsel] is equivalent to the harmfulness test we apply in determining plain error . . . .”). 20 Cite as: 2015 UT 22 JUSTICE DURHAM, dissenting fendant if defense counsel had provided adequate representation and ensured that the jury had been properly instructed.

2015See State v. Dunn, 850 P.2d 1201, 1225 (Utah 1993) (“Th[e] prejudice test [for ineffective assistance of counsel] is equivalent to the harmfulness test we apply in determining plain error . . . .”). 20 Cite as: 2015 UT 22 JUSTICE DURHAM, dissenting fendant if defense counsel had provided adequate representation and ensured that the jury had been properly instructed.

2021This harmfulness test is equivalent to the prejudice test applied in assessing claims of ineffective assistance of counsel.” (quotation simplified)). ¶21 At the outset of our analysis, we note that in the final jury instructions, given just before deliberations, the district court gave a general unanimity instruction, explaining, “Because this is a criminal case, every single juror must agree with the verdict before the defendant can be found guilty or not guilty.” The court also instructed the jury that it must consider each charge separately and further clarified, “Your verdict on one charge

2019As Tenant explains, "[Landlord's] promises concerning those issues [with the premises] explained why [Tenant] waited as long as it did to vacate," and the jury was precluded from considering whether "it was reasonable for [Tenant] to rely on [Landlord's] assurances." Tenant thus argues that the excluded evidence had bearing on its assertion that Landlord constructively evicted it from the premises. 5 ¶41 "An appellant challenging the exclusion of evidence bears the burden of showing the harmfulness of the error." Deutsche Bank Nat'l Trust Co. v. York , 2016 UT App 216 , ¶ 20, 387 P.3d 527 (cle

2019As Tenant explains, "[Landlord's] promises concerning those issues [with the premises] explained why [Tenant] waited as long as it did to vacate," and the jury was precluded from considering whether "it was reasonable for [Tenant] to rely on [Landlord's] assurances." Tenant thus argues that the excluded evidence had bearing on its assertion that Landlord constructively evicted it from the premises. 5 ¶41 "An appellant challenging the exclusion of evidence bears the burden of showing the harmfulness of the error." Deutsche Bank Nat'l Trust Co. v. York , 2016 UT App 216 , ¶ 20, 387 P.3d 527 (cle

2016Rynes v. Dick Simon Trucking, Inc., 2004 UT App 322, ¶ 21 , 110 P.3d 710 ; *532 accord Lawrence, 2014 UT App 40, ¶ 34 , 320 P.3d 1037 .

2016Rynes v. Dick Simon Trucking, Inc., 2004 UT App 322, ¶ 21 , 110 P.3d 710 ; *532 accord Lawrence, 2014 UT App 40, ¶ 34 , 320 P.3d 1037 .

2016P’ship, 2014 UT App 30, ¶ 11 , 320 P.3d 50 ; see also Lawrence v. MountainStar Healthcare, 2014 UT App 40, ¶ 17 , 320 P.3d 1037 (“[T]he proper scope of cross-examination is within the sound discretion of the trial court and should not be disturbed absent a showing of abuse.” (citation and internal quotation marks omitted)); cf. State v. Ashby, 2015 UT App 169, ¶ 17 , 357 P.3d 554 (“When reviewing a trial court’s decision to limit cross-examination, we review the legal rule applied for correctness and the application of the rule to the facts of the case for an abuse of discretion.” (citation an

2016P’ship, 2014 UT App 30, ¶ 11 , 320 P.3d 50 ; see also Lawrence v. MountainStar Healthcare, 2014 UT App 40, ¶ 17 , 320 P.3d 1037 (“[T]he proper scope of cross-examination is within the sound discretion of the trial court and should not be disturbed absent a showing of abuse.” (citation and internal quotation marks omitted)); cf. State v. Ashby, 2015 UT App 169, ¶ 17 , 357 P.3d 554 (“When reviewing a trial court’s decision to limit cross-examination, we review the legal rule applied for correctness and the application of the rule to the facts of the case for an abuse of discretion.” (citation an

2016“An error is harmful if, absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, [if] our confidence in the verdict ... is undermined.” State v. Maestas, 2012 UT 46, ¶ 37 , 299 P.3d 892 (alteration in original) (citation and internal quotation marks omitted). ¶53 On appeal Cruz contends that the comí; erred by making a record of Child’s nonverbal response and that the court’s curative instruction was ineffective to cure the error.

2016“An error is harmful if, absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, [if] our confidence in the verdict ... is undermined.” State v. Maestas, 2012 UT 46, ¶ 37 , 299 P.3d 892 (alteration in original) (citation and internal quotation marks omitted). ¶53 On appeal Cruz contends that the comí; erred by making a record of Child’s nonverbal response and that the court’s curative instruction was ineffective to cure the error.

2016P’ship, 2014 UT App 30, ¶ 11 , 320 P.3d 50 ; see also Lawrence v. MountainStar Healthcare, 2014 UT App 40, ¶ 17 , 320 P.3d 1037 (“[T]he proper scope of cross-examination is within the sound discretion of the trial court and should not be disturbed absent a showing of abuse.” (citation and internal quotation marks omitted)); cf. State v. Ashby, 2015 UT App 169, ¶ 17 , 357 P.3d 554 (“When reviewing a trial court’s decision to limit cross-examination, we review the legal rule applied for correctness and the application of the rule to the facts of the case for an abuse of discretion.” (citation an

2016P’ship, 2014 UT App 30, ¶ 11 , 320 P.3d 50 ; see also Lawrence v. MountainStar Healthcare, 2014 UT App 40, ¶ 17 , 320 P.3d 1037 (“[T]he proper scope of cross-examination is within the sound discretion of the trial court and should not be disturbed absent a showing of abuse.” (citation and internal quotation marks omitted)); cf. State v. Ashby, 2015 UT App 169, ¶ 17 , 357 P.3d 554 (“When reviewing a trial court’s decision to limit cross-examination, we review the legal rule applied for correctness and the application of the rule to the facts of the case for an abuse of discretion.” (citation an

1993This prejudice test is equivalent to the harmfulness test we apply in determining plain error, Verde, 770 P.2d at 124 n. 15, or reversible error, State v. Eldredge, 773 P.2d 29, 35 (Utah), cert. denied, 493 U.S. 814 , 110 S.Ct. 62 , 107 L.Ed.2d 29 (1989).

1993This prejudice test is equivalent to the harmfulness test we apply in determining plain error, Verde, 770 P.2d at 124 n. 15, or reversible error, State v. Eldredge, 773 P.2d 29, 35 (Utah), cert. denied, 493 U.S. 814 , 110 S.Ct. 62 , 107 L.Ed.2d 29 (1989).

1993See Tillman, 750 P.2d at 555 ; Smith, 700 P.2d at 1112 ; State v. Tucker, 709 P.2d 313, 316 (Utah 1985), abandoned on other grounds, State v. Long, 721 P.2d 483 (Utah 1986); Creviston, 646 P.2d at 754 ; Valdez, 30 Utah 2d at 60 , 513 P.2d at 426 .

1993See Tillman, 750 P.2d at 555 ; Smith, 700 P.2d at 1112 ; State v. Tucker, 709 P.2d 313, 316 (Utah 1985), abandoned on other grounds, State v. Long, 721 P.2d 483 (Utah 1986); Creviston, 646 P.2d at 754 ; Valdez, 30 Utah 2d at 60 , 513 P.2d at 426 .

1993See Tillman, 750 P.2d at 555 ; Smith, 700 P.2d at 1112 ; State v. Tucker, 709 P.2d 313, 316 (Utah 1985), abandoned on other grounds, State v. Long, 721 P.2d 483 (Utah 1986); Creviston, 646 P.2d at 754 ; Valdez, 30 Utah 2d at 60 , 513 P.2d at 426 .

1993See Tillman, 750 P.2d at 555 ; Smith, 700 P.2d at 1112 ; State v. Tucker, 709 P.2d 313, 316 (Utah 1985), abandoned on other grounds, State v. Long, 721 P.2d 483 (Utah 1986); Creviston, 646 P.2d at 754 ; Valdez, 30 Utah 2d at 60 , 513 P.2d at 426 .

1993See Tillman, 750 P.2d at 555 ; Smith, 700 P.2d at 1112 ; State v. Tucker, 709 P.2d 313, 316 (Utah 1985), abandoned on other grounds, State v. Long, 721 P.2d 483 (Utah 1986); Creviston, 646 P.2d at 754 ; Valdez, 30 Utah 2d at 60 , 513 P.2d at 426 .

1993See Tillman, 750 P.2d at 555 ; Smith, 700 P.2d at 1112 ; State v. Tucker, 709 P.2d 313, 316 (Utah 1985), abandoned on other grounds, State v. Long, 721 P.2d 483 (Utah 1986); Creviston, 646 P.2d at 754 ; Valdez, 30 Utah 2d at 60 , 513 P.2d at 426 .

1993This prejudice test is equivalent to the harmfulness test we apply in determining plain error, Verde, 770 P.2d at 124 n. 15, or reversible error, State v. Eldredge, 773 P.2d 29, 35 (Utah), cert. denied, 493 U.S. 814 , 110 S.Ct. 62 , 107 L.Ed.2d 29 (1989).

1993This prejudice test is equivalent to the harmfulness test we apply in determining plain error, Verde, 770 P.2d at 124 n. 15, or reversible error, State v. Eldredge, 773 P.2d 29, 35 (Utah), cert. denied, 493 U.S. 814 , 110 S.Ct. 62 , 107 L.Ed.2d 29 (1989).

1993This prejudice test is equivalent to the harmfulness test we apply in determining plain error, Verde, 770 P.2d at 124 n. 15, or reversible error, State v. Eldredge, 773 P.2d 29, 35 (Utah), cert. denied, 493 U.S. 814 , 110 S.Ct. 62 , 107 L.Ed.2d 29 (1989).

1993This prejudice test is equivalent to the harmfulness test we apply in determining plain error, Verde, 770 P.2d at 124 n. 15, or reversible error, State v. Eldredge, 773 P.2d 29, 35 (Utah), cert. denied, 493 U.S. 814 , 110 S.Ct. 62 , 107 L.Ed.2d 29 (1989).

1993This prejudice test is equivalent to the harmfulness test we apply in determining plain error, Verde, 770 P.2d at 124 n. 15, or reversible error, State v. Eldredge, 773 P.2d 29, 35 (Utah), cert. denied, 493 U.S. 814 , 110 S.Ct. 62 , 107 L.Ed.2d 29 (1989).

1993This prejudice test is equivalent to the harmfulness test we apply in determining plain error, Verde, 770 P.2d at 124 n. 15, or reversible error, State v. Eldredge, 773 P.2d 29, 35 (Utah), cert. denied, 493 U.S. 814 , 110 S.Ct. 62 , 107 L.Ed.2d 29 (1989).