State v. Marshall

               THE UTAH COURT OF APPEALS

                       STATE OF UTAH,
                         Appellee,
                             v.
                     DAMON JAY MARSHALL,
                         Appellant.

                            Opinion
                       No. 20230383-CA
                       Filed May 22, 2025

           Second District Court, Ogden Department
              The Honorable Reuben J. Renstrom
                        No. 201900185

           Freyja Johnson, Hannah Leavitt-Howell, and
              Mikayla Irvin, Attorneys for Appellant
           Derek E. Brown and Natalie M. Edmundson,
                     Attorneys for Appellee

  JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
                        concurred.

MORTENSEN, Judge:

¶1       Damon Jay Marshall did not show up on time for his own
trial, where he was being tried before a jury for possession of a
controlled substance with the intent to distribute. The judge
conferred briefly with counsel about Marshall’s absence and
decided to start the trial in absentia. About fifty minutes in,
Marshall appeared and was present for the rest of the trial. At
trial, a police sergeant opined that the amount of heroin Marshall
was carrying suggested that he possessed the drug “with the
intent to distribute.” Marshall’s counsel never objected to this
statement. Marshall was convicted and now appeals, arguing that
                          State v. Marshall


the court erred when it began the trial in his absence and that his
trial counsel was ineffective for not objecting to the sergeant’s
opinion about the intent to distribute. Because Marshall was not
ultimately prejudiced by either alleged error, we affirm his
conviction.


                         BACKGROUND

¶2     While conducting surveillance on a known drug house,
police officers saw a car parked in front. They followed the car
when it left, and when the driver crossed the center double-yellow
line several times, the officers activated their emergency lights
and pulled the car over.

¶3     Two officers approached the car, which had three
occupants—Marshall was driving with two passengers. The odor
of marijuana wafted from the car when Marshall rolled down the
window. One officer told Marshall to put the car in park, but
Marshall did not comply. Instead, he argued with the officer and
kept reaching toward the right pocket of his pants. When Marshall
eventually got out of the car at the officers’ request, he refused to
put his hands on his head or behind his back.

¶4      The officers arrested Marshall. A search revealed Marshall
had three bags of heroin, a marijuana roach, and two oxycodone
pills in his pants pockets. One of the bags of heroin contained
fifteen “small baggies of heroin.” Marshall was charged with
possession of a controlled substance with the intent to distribute.

¶5      The case proceeded to a jury trial. Marshall was absent
when the trial was set to begin at 9:00 a.m. A half hour later, the
trial judge stated, “It is now almost 9:30. The trial was to begin at
9:00. The defendant has not appeared. There has not been any
indication as to where the defendant is. I’ve also put word out
throughout the building and he hasn’t called in.”



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                          State v. Marshall


¶6    The State moved to “proceed in absentia,” with the
prosecutor stating, “We think he’s voluntarily decided not to
appear today.” Marshall’s counsel (Counsel) opposed the motion,
arguing, “There’s no evidence he voluntarily absented himself.
We feel that the Court . . . should strike the trial and have the
Court issue a warrant to find out why he’s not here.” Notably,
Counsel had not brought his office cell phone to court because he
knew he would not be able to answer calls during the trial.

¶7     The trial judge sided with the State: “I’m going to grant the
motion. When and if he does appear, we’ll get to the bottom of
that. But where we do have a jury who’s already here, we’ll . . . go
ahead with it today and see where the jury lands. And if he shows
up in the meantime, then we’ll cross that bridge when we get
there.” The trial then proceeded.

¶8     The State began to present its case. It first called the officer
(Officer) who searched Marshall after his arrest. He testified that
he found the three bags of heroin, the marijuana roach, and the
two oxycodone pills on Marshall. After Counsel cross-examined
Officer, the State then called a forensic scientist from the state
crime lab. She testified that the substance in the bags, which
weighed between six and seven grams in total, tested positive for
heroin.

¶9    At that time, which was about fifty minutes after the trial
had started, the court called the prosecutor and Counsel for a
sidebar to let them know Marshall had arrived. 1 The following
exchange took place:

       Court: I think the defendant is here. I just wanted to
         let you know your client is here. So I don’t know
         how you want to handle that.


1. The minute entry indicates that the jury was seated at 9:30 a.m.
and the sidebar started at 10:21 a.m.


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                          State v. Marshall


       Prosecutor: Have him come up and be seated.
       Counsel: Yeah.
       Court: Okay. I don’t want to make any more fanfare,
         obviously, than necessary. . . . So he’s already
         taking a seat in the back, so you may want to grab
         him and bring him up.

The sidebar ended and a chair was found for Marshall to use,
presumably at the defense table beside Counsel. The forensic
scientist finished testifying, and the State recalled Officer for the
purpose of identifying Marshall as the person he had searched.

¶10 The State’s final witness was a sergeant (Sergeant), whom
the State characterized as an “expert witness as it relates to
possession of controlled substances, specifically possession with
intent.” 2 After reciting his credentials, Sergeant testified that the
total amount of heroin found on Marshall—6.9 grams—would
yield about seventy doses of the drug. He further testified that the
individual baggies of heroin found on Marshall were “known as
20 Sacks” on the street because they sold for about twenty dollars
each. Sergeant described the amount of heroin in the other two
bags as a “medium sized quantity.” When asked what “having
different quantities” meant to him, Sergeant responded, “[S]o
with the different quantities, you see them distributed sometimes
in different weights. So this all suggests to me that this individual
was in possession of this heroin with the intent to distribute
because . . . of the different packaging and the different weights.”
He went on to say that individuals typically “don’t purchase a
large amount and then plan on divvying that out for themselves”
over seventy days, suggesting “distribution” was in play here. He
explained that drug dealers generally “purchase a large amount
[of contraband] and sell it on the street [as] single dosage units,”


2. Sergeant was not one of the officers involved in searching
Marshall when he was arrested.


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                         State v. Marshall


up-charging for the “lower dosage units” in order to maximize
their profit.

¶11 On cross-examination, Counsel asked Sergeant if he had
ever “run into anybody” who had the amount of heroin found on
Marshall for personal use. Sergeant said that he had not. But
Counsel pressed on:

      Counsel: And you don’t know that some people
        might not buy in bulk, because it is cheaper, and
        [to] keep a supply on hand?
      Sergeant: [A]gain, in my experience, I’ve never run
         into an individual like that.
      Counsel: But it’s possible—it’s completely possible
        that just because you haven’t run into it, doesn’t
        mean it doesn’t happen?
      Sergeant: Anything’s possible, sir.

¶12 Marshall elected not to testify and called no witnesses. The
jury convicted him as charged.

¶13 After the guilty verdict, the State asked that Marshall be
taken into custody to await sentencing, arguing that Marshall
“may not show up for sentencing” since he had been late for the
trial and hadn’t shown up for a pretrial conference. Counsel
opposed the request, arguing that Marshall had called in the past
when he was going to be late and that he may have been unable
to contact him because Counsel did not have his office cell phone
with him. Counsel explained, “But he has . . . contacted us [in the
past] during jury selection, let us know what the problem was. He
had some automobile problems. He’s coming up from Salt Lake.”

¶14 Before ruling on the State’s motion, the court interviewed
Marshall as to the reason for his tardiness, resulting in the
following exchange:



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                       State v. Marshall


    Court: Let me just ask, what were your car problems
      today, Mr. Marshall?
    Marshall: Well, I bought a vehicle last week, and I’ve
      been having issues with it starting and continue
      running—staying running. So it wasn’t staying
      running. And I attempted to get here, and it died
      with me on the freeway again. I have a code
      reader that I’ve been putting the codes in. And
      it’s got a code reader stating that it’s got an
      ignition module, that it needs a solenoid that
      needs replaced, and I didn’t have that—I didn’t
      have the means for that.
            My son has been patient with me and willing
       to help me with that. And [my son and his
       girlfriend are] going to take me. And they wanted
       to come anyways. I asked them . . . if the car is not
       willing to stay running, would he be able to
       shuttle me up here?
    Court: Okay. So I guess the problem I’m having is it
      sounds like you were relying upon an inherently
      unreliable car.
    Marshall: I thought I’d fixed the problem. And the
      code came up as probably not the ignition
      module. It’s a different code that popped up. It’s
      showed a catalytic problem. It may be a catalytic
      converter or a misfire of some sort.
    Court: Well, I tend, at this point, to agree with the
      State. . . . [T]here’s going to be a series of things
      that he would have to come to Ogden for to meet
      with AP&P to get the PSI done and then to get
      here on time to court. And so rather than prolong
      those things, it is the Court’s intention to take him
      into custody today.
       ....



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                          State v. Marshall


               My biggest problem is, is this is a pretty big
          deal today. I mean, you’ve been charged with a
          first-degree felony and you showed up an hour
          and a half late to your own trial on a first-degree
          felony.
          ....
                So I’m trying to put your story together, [and
          it] does not really resonate with the Court.
          Because, I had a car that was inherently
          unreliable. I had a son who was planning on
          coming in any regard. Why not just put that car
          that wasn’t working to the side in its entirety and
          rely completely on a son who was already
          intending to come, is the inherent question that I
          still don’t have resolved in my mind.
              So it is—I appreciate what everybody is
          saying, but I am going to take him into custody.

Marshall was subsequently sentenced to a prison term of five
years to life.


            ISSUES AND STANDARDS OF REVIEW

¶15 Marshall appeals, asserting that the district court erred
when it began the trial in his absence. “Whether the trial court’s
inquiry regarding the voluntariness of a defendant’s absence was
properly conducted” is a question of law reviewed for
correctness. State v. Pando, 

, 

(cleaned up); see also State v. Wanosik (Wanosik I), 

, 

, aff’d, 

, 

. 2001. Whether a
defendant is voluntarily absent is a question of fact, Pando, 

; see also State v. Wanosik (Wanosik II), 

, 

 (“[T]he question of voluntariness is highly fact-




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                          State v. Marshall


dependent . . . .”), which is reviewed for clear error, see In re
Jacobson, 

, 

.

¶16 Marshall also asserts that Counsel was ineffective for not
objecting to Sergeant’s opinion that the amount of heroin that he
possessed suggested an intent to distribute. “When a claim of
ineffective assistance of counsel is raised for the first time on
appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Guerro, 

, 

 (cleaned up).


                            ANALYSIS

                        I. Trial in Absentia

A.     The Inquiry

¶17 Marshall argues that the district court “erred when it
granted the State’s motion to hold the trial in absentia without
requiring the State to show any evidence that [he] had voluntarily
chosen to be absent from trial.”

¶18 “A defendant charged with a crime is entitled to be present
at all stages of trial.” State v. Houtz, 

 (Utah 1986)
(per curiam); see also Utah Const. art. I, § 12 (“In criminal
prosecutions the accused shall have the right to appear and
defend in person and by counsel . . . .”); Utah Code § 77-1-6(1)(a)
(“In criminal prosecutions the defendant is entitled . . . [t]o appear
in person and defend in person or by counsel . . . .”). “The right to
appear and defend in person is a constitutional one, but may be
waived under certain circumstances if the defendant voluntarily
absents himself from the trial. However, that voluntariness may
not be presumed by the trial court.” Wanosik II, 

,

 (cleaned up).



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                          State v. Marshall


¶19 It is impermissible to apply “an automatic presumption of
voluntariness . . . based on nothing more than non-appearance at
a hearing of which a defendant had notice.” Id. ¶ 15. “Instead, the
question of voluntariness is highly fact-dependent, is tied to the
totality of circumstances in particular cases, and, where there is
virtually no explanation for an absence, requires some form of
inquiry by the trial court.” Id. “The prosecution, which must bear
the burden of proof regarding waiver, would be well served to
assist the court in its inquiry by providing at least some minimal
evidence that the defendant” is voluntarily absent. Id.; see also
State v. Ross, 

 (Utah 1982) (per curiam) (stating
that “no one denies the general principle” that “the onus is on the
State to show voluntariness of absence and lack of consent to a
trial in absentia” (cleaned up)); State v. Wagstaff, 

(Utah Ct. App. 1989) (“The state carries the burden of showing
voluntariness.”).

¶20 Our supreme court has laid out this course for conducting
an adequate inquiry into the voluntariness of a defendant’s
absence:

       In the average case, the trial court may simply
       instruct defense counsel to attempt to contact the
       defendant or persons familiar with the defendant to
       see if an explanation for the non-appearance
       emerges, and the prosecutor to ascertain if the
       defendant is incarcerated . . . . Once inquiry
       appropriate to the case has been made, and a
       compelling reason for the defendant’s absence
       remains unknown, voluntariness may then be
       properly inferred.

Wanosik II, 

 (cleaned up).

¶21 Here, the problem with the court’s inquiry to determine if
Marshall was voluntarily absent is twofold. First, the court never



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                         State v. Marshall


required the State to provide any evidence that Marshall’s absence
was voluntary. See Wanosik I, 

, 

(“[T]he State must make a preliminary showing, based on
reasonable inquiry, that [the] defendant’s absence is voluntary.”),
aff’d, 

, 

. Instead, the court accepted at face
value the prosecutor’s unsupported conclusion that “[w]e think
[Marshall has] voluntarily decided not to appear today,” despite
Counsel pointing out that there was “no evidence [Marshall]
voluntarily absented himself.” The court appears to have limited
its inquiry to not hearing from Marshall after having “put word
out throughout the building” that he was due in court and on the
prosecutor’s personal belief that Marshall had voluntarily
decided to not attend his trial. The court stated that “[w]hen and
if” Marshall did appear, it would “get to the bottom of that.” But
the court reasoned that since the jury was already seated, the trial
would proceed in absentia and it would “see where the jury
lands.” And the court reiterated that if Marshall showed up after
the trial started, “then we’ll cross that bridge when we get there.”

¶22 But that’s not how the court was supposed to make its
decision to proceed in absentia. Instead of presuming that
Marshall was voluntarily absent based on the prosecutor’s hunch,
the court was required to conduct a reasonable inquiry before
making such a determination. Wanosik II, 

. Here,
the inquiry the court conducted was inadequate because it did not
involve either the State or Counsel trying to find out where
Marshall was, thus suggesting that, at the time, “nothing more
than that no one knew why [Marshall] was absent” was required.
See Wanosik I, 

. And with “no reliable
information on the voluntariness of [Marshall’s] absence, the trial
court merely assumed that [Marshall’s] absence was voluntary.”
See 

 In other words, Marshall’s non-appearance and the court’s
somewhat passive effort of putting “word out throughout the
building” was not enough for the court to go on since “the
question of voluntariness is highly fact-dependent” and “tied to



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                          State v. Marshall


the totality of circumstances.” Wanosik II, 

. And
“where there is virtually no explanation for an absence”—as was
the case here—the district court is required to conduct “some form
of inquiry,” which, as our supreme court has indicated, in the
average case would at a minimum include an effort to contact
missing defendants and to ensure they are not incarcerated. 

Because the State bore the burden of proof to show Marshall was
voluntarily absent, it should have assisted the court in making the
inquiry beyond merely speculating that Marshall “voluntarily
decided not to appear” at trial. 3 At the very least, the court could


3. On appeal, the State argues, “Most of the court’s inquiry into
Marshall’s absence, including a conversation with defense
counsel and the prosecutor, was done off the record. Thus, the full
extent of that conversation, and any efforts to inquire into
Marshall’s absence, is largely unknown.” From this lack of record,
the State asserts that “Marshall relies on an inadequate record in
making” the claim that the inquiry into his absence was
inadequate. The State’s argument here falls short in two respects.
First, we have explained when “no direct inquiry by the trial court
appears in the record,” we will conclude that “the record reflects
that the trial court erred by failing to make an adequate inquiry
into whether [a defendant] was voluntarily absent before
proceeding with trial in absentia.” State v. Gunter, 

, 

 (cleaned up). Second, the State bore “the
burden of proof regarding waiver” to show that Marshall was
voluntarily absent. Wanosik II, 

, 

. If the
State had indeed carried this burden—which it should have been
aware of given our case law—it should have ensured that its
efforts to assist the district court in conducting the inquiry into
Marshall’s absence appeared on the record. Instead of concluding
that the record lacked the details of the efforts made relevant to
the inquiry, we determine a more likely scenario—especially
given the standard articulated in Gunter—is that the record
                                                      (continued…)


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                          State v. Marshall


have had Counsel—who was the person most likely to be able to
find Marshall—attempt to contact Marshall and could have had
the prosecutor separately verify that Marshall was not
incarcerated. See 

 Only after making an appropriate inquiry and
finding no compelling reason for Marshall’s absence would the
district court have been allowed to properly infer that Marshall
was voluntarily absent. 

 Instead of relying on its inherently
faulty inquiry, the court should have taken a break to allow
Counsel and the prosecutor to gather the information necessary
for it to make a sound decision. See Wanosik I, 

 (“When neither court nor counsel have information as to why
the defendant is not present, a continuance will ordinarily be
required to allow the prosecution and defense counsel an
opportunity to inquire into the defendant’s whereabouts and the
reasons for his absence.”); see also Wanosik II, 

 (“It
is true that continuances . . . will occasionally be required, but they
need not be of long duration, and we think fairness and
constitutional procedure require them.”).

¶23 A second problem with the district court’s inquiry is that it
substantively took place after the fact and in the context of
determining whether Marshall should be taken into custody
before sentencing. Our case law clearly indicates that the inquiry
is to take place before the court makes a decision to proceed in
absentia based on voluntariness. Wanosik II, 

.
Moreover, the district court’s after-the-fact inquiry was conducted
not to determine if Marshall was voluntarily absent but instead to
determine whether he should be held in custody prior to
sentencing. The prosecutor argued that the “record” indicated
Marshall “may not show up for sentencing” because he had been
late or not shown up for proceedings in the past. The court then
asked Marshall about the car problems he had on the day of trial.



accurately reflected the lack of an adequate inquiry. See 

.


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                        State v. Marshall


The court opined that it perceived Marshall as “relying upon an
inherently unreliable car.” The court then observed that Marshall
was going to have to travel to Ogden several times to meet with
Adult Probation and Parole and get to court in connection with
sentencing. Given Marshall’s history of being late, the court
decided to take him into custody to avoid additional delays. Thus,
it’s clear that the court never addressed whether Marshall was
voluntarily absent from trial. Instead, it was determining whether
it was likely that Marshall would be able to appear at future
proceedings given his transportation issues. We have a difficult
time equating the court’s inquiry after trial to determine whether
Marshall could be counted on to show up in the future with
whether Marshall was voluntarily absent in the past when his trial
began, which is the moment critical to the question before us in
this appeal.

¶24 In sum, the district court did not make a valid
determination as to whether Marshall was voluntarily absent
because it never undertook an adequate inquiry to support that
conclusion. The court had no relevant evidence of voluntariness
because no adequate inquiry was undertaken prior to
determining Marshall was voluntarily absent. And the inquiry—
such as it was—that took place was conducted after the fact and
to decide whether Marshall should be held in custody prior to
sentencing. Accordingly, the district court erred in concluding
that Marshall was voluntarily absent at the outset of trial.

B.    Prejudice

¶25 Given the court’s inadequate inquiry into whether
Marshall was voluntarily absent, we must next consider whether
this shortcoming harmed Marshall. A district “court’s error in
failing to conduct an adequate inquiry into whether a defendant’s
absence was voluntary does not merit reversal . . . unless the
defendant was prejudiced by the lack of adequate inquiry.”
Wanosik I, 

.



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                          State v. Marshall


¶26 Our supreme court recently clarified that there are “three
categories of standards for proving prejudice” for constitutional
errors. State v. Chadwick, 

, 

. The first
is “reserved for structural errors, which are defects that affect the
framework within which the trial proceeds.” 

 (cleaned up).
Such “constitutional errors in criminal cases constitute per se
prejudice.” 

 The second category is for “other constitutional
errors” that “carry a presumption of prejudice.” Id. ¶ 48. This
presumption “may be rebutted if the State proves that the error
was harmless beyond a reasonable doubt.” Id. “The third class of
constitutional errors requires that the defendant establish
prejudice.” Id. ¶ 49. This category typically includes “unpreserved
claims of error and ineffective assistance of counsel claims.” Id.
(cleaned up). In Chadwick, our supreme court was considering a
Unanimous Verdict Clause error. Id. ¶ 50. The court concluded
that such errors fall under the second category because neither
party had suggested that such an error was structural, id. ¶ 53,
and “a unanimity error is not the type of error that, by its nature,
cannot be brought for the first time before a district court,” id.
¶ 54. 4 The second category, the court observed, “acts as a catch-all
for most constitutional errors that do not fit the other two
categories.” Id. ¶ 55. “[A]ttaching a rebuttable presumption is an
appropriate safeguard” when the error involves a “serious
constitutional concern.” Id. ¶ 56.

¶27 So it is here. The right to appear is a “serious constitutional
concern” that “implicates the right to a fair trial as well as an
explicit constitutional guarantee.” See id. This was the very stance
this court has elsewhere suggested applies to a prejudice analysis
concerning a district court’s failure to adequately inquire into a
defendant’s failure to appear. See State v. Gunter, 

, ¶ 27 n.7, 

 (“The United States Supreme Court



4. At oral argument, appellate counsel explicitly affirmed that
Marshall does not allege the error here was structural.


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                         State v. Marshall


applied a higher standard when determining whether a trial
court’s constitutional error could be considered harmless, noting
that before a federal constitutional error can be held harmless, the
court must be able to declare a belief that it was harmless beyond a
reasonable doubt.” (cleaned up)). Accordingly, we conclude that a
district court’s failure to conduct an adequate inquiry into a
defendant’s absence creates “a presumption of prejudice that may
be rebutted if the State proves that the error was harmless beyond
a reasonable doubt.” See Chadwick, 

.

¶28 There are two levels of prejudice at play in this case. The
first concerns whether the court’s inadequate inquiry harmed
Marshall when he was presumed to be voluntarily absent though
his absence might have been involuntary. The second concerns
whether the inadequate inquiry that resulted in proceeding in
absentia prejudiced Marshall by having an impact on the verdict.

¶29 While we are sympathetic to Marshall’s claim that had the
district court conducted a proper—and timely—inquiry, then it
would have determined Marshall was involuntarily absent due to
transportation issues, that is not the harm that ultimately matters
under the circumstances of this case. Even though the district
court erred in declaring Marshall voluntarily absent, the harm
analysis must extend beyond this discrete action to consider
whether proceeding in absentia had a discernible impact on the
verdict reached by the jury. And for this overarching level of
prejudice, the State has met its burden to show that the error was
harmless beyond a reasonable doubt.

¶30 Marshall argues that he was prejudiced in several ways
when the court proceeded in absentia. First, Marshall asserts that
there is a “reasonable likelihood” that his absence “materially
affected the evidentiary picture.” Specifically, Marshall suggests
that he “may have decided to testify” if he had been present to
hear “Officer’s testimony about the arrest.” Next, Marshall argues
that the “judge felt differently about [him] because he was late to



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                          State v. Marshall


trial,” suggesting that the perception that he was not taking his
trial seriously led the court to not call a recess when he arrived.
He asserts that doing so would have minimized the attention
drawn to his late arrival. Marshall thus claims that allowing his
late arrival to be on full display affected the jury’s evaluation of
him and his case by causing its members to view him negatively.

¶31 The State effectively rebuts the presumption of prejudice
by showing that starting the trial in absentia was harmless beyond
a reasonable doubt. As to the suggestion that Marshall might have
testified had he heard Officer’s testimony, that possibility was
remote at best. As the State points out, Marshall’s defense was that
he purchased the heroin in bulk to use over time. And given this
defense, any decision not to testify was likely made long before
the day of trial and would have nothing to do with Marshall not
hearing Officer’s testimony. Moreover, testimony from Marshall
that he possessed a large quantity of heroin for personal use
would have opened the door for rebuttal evidence that Marshall
was in the process of arranging to sell the drugs. 5

¶32 Regarding Marshall’s tardiness causing the jury to view
him negatively, there is little doubt that being late to one’s own
trial is not a great way to make a good impression. Thus, the jury
might well have thought less of Marshall because he showed up
late for his trial. But it was not a bad impression that convicted
Marshall; instead it was the overwhelming evidence that he
planned on selling the heroin found on him. Indeed, “the question
of the evidence’s strength is clearly the most plausible path for the
State to argue harmlessness beyond a reasonable doubt.” State v.
Soto, 

, ¶ 101, 

; see also State v. Crowley, 2014

5. During the preliminary hearing, Officer testified that a search
of a passenger’s cell phone when Marshall was arrested revealed
a “discussion of the sale of narcotics” between that passenger and
another person, and only Marshall had a distribution quantity of
drugs in his possession.


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                         State v. Marshall


UT 

 (“When considering whether an
error was harmless beyond a reasonable doubt, we consider,
among other factors, the overall strength of the State’s case. The
more evidence supporting the verdict, the less likely there was
harmful error.” (cleaned up)); United States v. Lloyd, 

 (3d Cir. 2001) (“We have further recognized that a heavy
volume of incriminating evidence also can undermine a claim of
prejudice.” (cleaned up)); United States v. Rowe, 

(11th Cir. 1990) (“In recognizing the degree of prejudice required
and the government’s burden to establish harmless error, the
strength of the government’s case has a bearing on the issue of
prejudicial error.”).

¶33 Here the strength of the evidence against Marshall was
robust. There was no dispute that the heroin found on Marshall
after his arrest belonged to him. Nor was there a dispute about the
quantity of the heroin or that much of it was already divided into
fifteen smaller packages appropriate for individual sale.
Moreover, the jury heard evidence that it would be unusual for an
individual to purchase a large quantity of heroin with the intent
of divvying it up for personal use over seventy days. So even if
Marshall’s tardiness created a negative impression, there was still
overwhelming evidence supporting Marshall’s conviction. In
other words, it was not his tardiness that convinced the jury to
convict him; it was the large amount of heroin neatly packaged
for resale that was fatal to Marshall’s case. Even if Marshall had
shown up early and been a model defendant, we are confident
that he still would have been convicted based on the
overwhelming evidence arrayed against him.

¶34 Because the evidence overwhelmingly established that
Marshall possessed heroin with the intent to distribute it, any
harm from the court’s flawed decision to proceed in absentia was,
under the circumstances of this case, harmless beyond a
reasonable doubt.




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                          State v. Marshall


                     II. Sergeant’s Testimony

¶35 Marshall’s next claim is that Counsel provided ineffective
assistance by failing to object to Sergeant’s testimony that
Marshall possessed the heroin with the intent to distribute it.
Marshall argues that this comment “constituted impermissible
expert testimony regarding whether the defendant had a mental
state or condition that is an element of the charged offense, in
violation of rule 704(b) of the Utah Rules of Evidence.” See Utah
R. Evid. 704(b) (“In a criminal case, an expert witness must not
state an opinion about whether the defendant did or did not have
a mental state or condition that constitutes an element of the crime
charged or of a defense. Those matters are for the trier of fact
alone.”).

¶36 To prove ineffective assistance of counsel, a defendant
must meet the two-prong test established in Strickland v.
Washington, 

 (1984): “First, the defendant must show
that counsel’s performance was deficient. . . . Second, the
defendant must show that the deficient performance prejudiced
the defense.” 

. However, “there is no reason for a court
deciding an ineffective assistance claim to approach the inquiry in
the same order or even to address both components of the inquiry
if the defendant makes an insufficient showing on one.” 

.
Thus, because “failure to establish either prong of the test is fatal
to an ineffective assistance of counsel claim, we are free to address
[the defendant’s] claims under either prong.” Honie v. State, 

, 

. The prejudice prong requires the
defendant to show “that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 

. Put
another way, “the defendant’s showing must undermine our
confidence in the outcome.” State v. Gonzalez, 

, 

 (cleaned up). Here, because Marshall is not able
to demonstrate prejudice, we limit our analysis to the second
prong.


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                         State v. Marshall


¶37 This is the specific piece of testimony Marshall claims
should have raised an objection from Counsel: “So this all
suggests to me that this individual was in possession of this
heroin with the intent to distribute because . . . of the different
packaging and the different weights.” (Emphasis added.) But this
was just an isolated phrase in Sergeant’s overall testimony,
which—even absent the “intent to distribute” statement—clearly
demonstrated that the amount of heroin Marshall possessed was
not for personal use. See State v. Prettyman, 

,

 (“[T]he jury had before it multiple sources of
evidence it could consider besides [the police officer’s] statement
that ‘it was distribution’ indicating that the quantities of drugs
[the defendant] possessed were significantly larger than those
typically possessed for personal use.”), cert. denied, 

(Utah 2024).

¶38 Sergeant also testified that the nearly seven grams of
heroin that Marshall possessed, much of it packaged for
individual sale, represented seventy dosage units. Sergeant
testified that drug dealers commonly buy in bulk with an eye to
sell the contraband in “as small a quantity as possible.” He
explained, “So if you purchase a large amount and sell it on the
street [as] single dosage units, you can upcharge those lower
dosage units and make money off of your bulk purchase.”
Sergeant testified that regular heroin users, on the other hand,
would be unlikely to keep a large supply. Instead, Sergeant said,
they “only would keep enough on hand to get them high in that
moment and sell off as much of the rest as they possibly could.”
The only reasonable conclusion, based on Sergeant’s testimony, is
that a seventy-dose supply such as Marshall possessed would be
for distribution. The jury members did not need Sergeant to spell
it out for them by stating that Marshall had the drugs with the
“intent to distribute.” The evidence spoke for itself that he was
intending to sell his stock. Thus, had Sergeant not uttered the illadvised phrase “intent to distribute,” the jury’s conclusion almost



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                         State v. Marshall


certainly would have been the same based on the overall
testimony of Sergeant. Accordingly, Marshall cannot demonstrate
a reasonable likelihood of a more favorable outcome even if
Counsel had successfully objected to Sergeant’s isolated
statement.


                         CONCLUSION

¶39 The district court conducted an inadequate inquiry to
determine whether Marshall was voluntarily absent from trial.
But given the overwhelming evidence against him, Marshall was
not ultimately prejudiced by this error. And Marshall’s ineffective
assistance claim regarding witness testimony also fails for lack of
prejudice.

¶40   Affirmed.




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