State v. Broadwater

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                          Appellee,
                              v.
                  KEITH NELSON BROADWATER,
                          Appellant.

                            Opinion
                        No. 20220529-CA
                    Filed December 19, 2024

          Eighth District Court, Duchesne Department
               The Honorable Samuel P. Chiara
                          No. 211800093

              Benjamin Miller and Debra M. Nelson,
                    Attorneys for Appellant
               Sean D. Reyes and Lindsey Wheeler,
                     Attorneys for Appellee

     JUDGE RYAN M. HARRIS authored this Opinion, in which
    JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred.

HARRIS, Judge:

¶1     Keith Nelson Broadwater shot and killed his longtime
roommate (Roommate) following an apparent altercation. He
claimed he did so in self-defense, but a jury convicted him of
murder and unlawful discharge of a firearm. Broadwater now
appeals those convictions, raising one preserved issue
challenging a restriction the trial court placed on his attorney
during closing argument, and making various other claims of
ineffective assistance of counsel and plain error. For the reasons
discussed in this opinion, we affirm Broadwater’s convictions.
                        State v. Broadwater


                         BACKGROUND 1

¶2     Broadwater and Roommate first started living together in
2008 or 2009, when they were both working at the same company.
Over the ensuing years, they lived together on multiple occasions
in various places in Utah. Broadwater testified that he and
Roommate had a generally positive relationship, despite
occasional differences, and would often go out to dinner together
and sometimes even travel together out of state.

¶3      In 2021, Broadwater and Roommate were living together
in a four-bedroom house, and in early March Roommate’s onagain-off-again girlfriend (Girlfriend) came to stay with
Roommate at the house. Broadwater occupied the house’s
primary bedroom, and Roommate (and Girlfriend) occupied a
second bedroom down a hallway. Along the hallway between the
two rooms, there was another bedroom and a bathroom. This
third bedroom was used for storage of various items; Broadwater
testified at trial that the items stored there included two guns, and
he sometimes referred to that room as the “gun room.”

¶4     Shortly after Girlfriend came to stay at the house, she and
Roommate got into a dispute; Girlfriend came to believe that
Roommate had stolen her purse, and she even called the police to
report the alleged theft, but she located the purse soon thereafter
and it turned out not to have been stolen. In her report to police,
though, Girlfriend stated that she and Roommate had been
“having words.” Broadwater was displeased with the entire
episode, and he indicated to Roommate that he didn’t “want



1. “In an appeal from a jury trial, we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly, and we present conflicting evidence only as
necessary to understand issues raised on appeal.” State v. Kufrin,

, 

 (quotation simplified).


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                        State v. Broadwater


[Girlfriend] around” and told both Roommate and Girlfriend that
Girlfriend “ha[d] to go.”

¶5     On March 17, 2021, Roommate went to work, but
Broadwater and Girlfriend remained at the house. Girlfriend
worked from home in Roommate’s room, but Broadwater had the
day off, and he spent the day “doing chores around [the] house”
and drinking beer. After Roommate got home from work around
five o’clock, he and Girlfriend decided to go out for the evening
to celebrate St. Patrick’s Day. Roommate invited Broadwater to go
with them, but Broadwater declined. At this point in the day,
Girlfriend thought Broadwater was already “intoxicated” and
“acting belligerent”; Broadwater testified that, while he could not
remember how many beers he had consumed throughout the day,
he was “buzzed” but not drunk.

¶6      While Roommate and Girlfriend were out, Broadwater
watched television and eventually went to bed around 10:30. He
testified that when he went to bed, he was “feeling buzzed” but
was not intoxicated or “having trouble walking or speaking.”

¶7      Girlfriend and Roommate returned to the house around
midnight; the lights in the house were off, and Broadwater was
apparently asleep in his room. Girlfriend and Roommate went to
their room and were laughing and talking. This activity awakened
Broadwater, who claims to have heard “[y]elling”; displeased at
having been awakened, Broadwater got up and “turned the
hallway light . . . on and off” to “let them know to be quiet.”
Girlfriend also remembered that “the hall light kept going off and
on” and that she heard “some mumbling from [Broadwater].”
Nonetheless, she testified she was not “worried about what he
was saying,” and that she was on the floor “sipping on a can”
while Roommate was on the bed “smoking some weed or
something.” As Broadwater recounted it, however, the noise did
not cease, so he went to Roommate’s room and knocked on the
door “to tell them to shut up.” Girlfriend later recalled that



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                       State v. Broadwater


Broadwater’s knock “wasn’t a regular knock” but was “heavier,”
causing her to believe that “he knocked on the door with [a] gun.”
In response to the knock, Roommate opened the door, stepped
into the hallway, and started talking to Broadwater. A minute or
two later, a shot rang out, and Roommate fell to the ground,
fatally wounded.

¶8      Broadwater and Girlfriend, who both testified at trial,
offered somewhat different—and sometimes self-contradictory—
accounts of what happened. As Girlfriend recounted it,
Roommate and Broadwater were speaking in or near the doorway
to Roommate’s room; it is unclear from Girlfriend’s testimony
whether Roommate was standing directly in the bedroom’s
doorway or was further into the hall. On direct examination, she
twice confirmed that Roommate went “out in the hallway.” On
cross-examination, she reiterated that Roommate “went out of the
room” after answering the knock at the bedroom door and that
Roommate and Broadwater “were having a conversation in the
hall.” Later, however, in response to additional cross-examination
questions, she testified that Roommate was standing “in the door
jam” during the entire discussion and when the shot was fired.
But she stated that she was distracted during the incident—she
was looking at her phone and listening to music—and that she
only “look[ed] up” at them twice during their discussion.

¶9    She testified that Roommate didn’t ever “do anything to
try and attack” Broadwater during their discussion. She stated
that—although she could not hear most of the details of what they
were saying—the conversation the two men were having was not
a heated one and that neither seemed upset or was cursing.
Eventually, though, she heard Roommate ask Broadwater, “Why
do you have a gun?” Then Girlfriend heard a “pop,” looked up,
and saw that Roommate had been shot.

¶10 For his part, Broadwater testified that after he knocked on
Roommate’s bedroom door, he turned around and was walking



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                       State v. Broadwater


back toward his room at the other end of the hallway. When he
was about “halfway back” to his room, Roommate opened the
door and expressed annoyance at Broadwater’s knock.
Broadwater responded by stating that Girlfriend had been asked
to move out and was not even supposed to be living in the house.
In Broadwater’s telling, this made Roommate visibly angry, and
he threatened to “fuck [Broadwater] up” and began walking
toward Broadwater in a menacing manner, with his fists clenched.
Broadwater claims that, at this point, he believed that Roommate
was going to punch him, and so he started backing up toward his
room. He testified that he was nervous he would not be able to
defend himself against Roommate, for several reasons. For one,
Roommate was a big man, weighing about 380 pounds, some 150
pounds more than Broadwater. Additionally, Broadwater
testified that Roommate had previously “bragged” that he could
knock someone out with one punch.

¶11 Broadwater stated that he eventually backed up all the way
into his room, because Roommate had advanced to the
threshold to Broadwater’s room and stated he would “fucking
kill” Broadwater. At that point, Broadwater “grabbed a gun” from
the closet of his bedroom. When he turned around, Broadwater
saw that Roommate had walked back down the hall toward
the storage room, which Broadwater believed contained two
guns, and he had “started to open [the door]” to that room.
Broadwater worried that Roommate was “getting a gun,” so he
entered the hallway again, stopping about four or five feet
from Roommate, who was still standing next to the storage
room. The two men exchanged additional words, and then—
according to Broadwater—Roommate moved aggressively
toward him, with his hands “coming up” as if he was going to
take Broadwater’s gun. Broadwater claims that, when
Roommate was so close it “almost seemed like [the gun] was
touching” Roommate, Broadwater shot Roommate one time in the
chest.



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                        State v. Broadwater


¶12 After Roommate was shot, both Broadwater and Girlfriend
called 911. While on the phone with first responders, Broadwater
repeated variations of the phrase, “I shot him.” Broadwater also
told the 911 operator that Roommate had “threatened” and
“challenged” him. Multiple officers arrived on the scene, took
Broadwater into custody, and attempted to render lifesaving aid
to Roommate. Officers noted that Broadwater seemed intoxicated
but was very cooperative with officers; indeed, he said to them, “I
can’t believe I shot him.” Aid was unsuccessful, however, and
Roommate died at the house.

¶13 Following Roommate’s death, officers investigated the
incident. They recovered the bullet and its shell casing, and in
Roommate’s room they found a prescription in Roommate’s name
for glipizide, a diabetes medication. On the prescription bottle
there was a notice that the patient should avoid alcohol while
taking glipizide. Officers found damage to the doorframe of
Roommate’s door, which they believed may have been caused by
the bullet; that damage was located some 32 to 33 inches above
the floor. The bullet itself was found down the hallway, indicating
that it may have bounced off of the doorframe and into the
hallway. The shell casing was found outside the bathroom door
in the hallway. Officers found no sign of a fight or a struggle. A
search of the house turned up some ammunition, but officers did
not locate any other weapons—including in the “gun room”—
although the searching officer later acknowledged that he “wasn’t
doing a deep and thorough search” of the house. Ultimately, an
investigating detective testified that the evidence was “consistent
with [Roommate] being shot in the hallway.”

¶14 A medical examiner (Examiner) performed an examination
and postmortem autopsy. As relevant here, Examiner noted a
single gunshot wound on Roommate’s torso, which Examiner
determined was the cause of death. Examiner observed that the
entrance wound, located on the front of Roommate’s body, was
located about four inches higher than the exit wound on the back


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                       State v. Broadwater


of his body; the entrance wound would have been about 50 inches
above the floor, and the exit wound would have been about 46
inches above the floor. Examiner also noted “stippling” around
the entrance wound, indicating that the wound was generated
from “an intermediate range of fire, meaning that the gun was
likely within several inches to feet” of Roommate’s body at the
time of the shooting. Finally, a toxicologic analysis determined
that Roommate’s blood alcohol content was 0.148 at the time of
death. That same analysis did not detect any glipizide; if any was
present, it was “below the level of detection.”

¶15 The State eventually charged Broadwater with two firstdegree felonies: murder, and discharge of a firearm with serious
bodily injury. The case proceeded to a three-day jury trial. In
support of its case-in-chief, the State elicited testimony from
Girlfriend, Examiner, and several law enforcement officers.
Girlfriend testified about the events in question, as described
above, and her testimony was in some respects both internally
inconsistent as well as inconsistent with earlier statements she
had made to officers. For instance, Girlfriend’s trial testimony
was internally inconsistent about where Roommate had been
standing during the incident: on direct examination, she said
he was “out in the hallway,” but on cross-examination she
testified that he was “in the door jam.” Also, on the night of the
incident, Girlfriend had denied that Roommate had been using
drugs and, instead, she had asserted that it had been Broadwater
who had been using drugs. But at trial, she testified that
Roommate had been smoking “pot” on the night in question and
that she had not seen Broadwater use drugs on the night in
question or at any point in the month before Roommate’s death.
Furthermore, she had initially told officers that when Broadwater
knocked on the door it sounded like a regular knock, but at trial
she claimed that the knock was “really heavy” and that she
believed Broadwater knocked on the door with the gun. And
more generally, Girlfriend acknowledged on cross-examination



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                        State v. Broadwater


that she has sometimes been known to “embellish a story as [she
is] telling it.”

¶16 After the State’s presentation of evidence, Broadwater’s
defense counsel (Counsel) made a limited motion for a directed
verdict, asserting that the State had not presented sufficient
evidence that the events in question “occurred within Duchesne
County,” and that the court therefore had no jurisdiction in the
matter. The court denied the motion, concluding that sufficient
evidence had been presented that the crimes with which
Broadwater had been charged had occurred in Duchesne County.
Broadwater made no other directed verdict motion.

¶17 Broadwater elected to testify—as recounted above—in his
own defense. After the presentation of evidence, the court
instructed the jury, and the attorneys offered their closing
arguments. In its initial closing argument, the State asserted that
Broadwater did not have the necessary “reasonable belief of
imminent death or serious bodily injury” for his self-defense
claim; in particular, it argued that Broadwater—who was, in his
own words, worried about a “one-punch knockout”—could not
have had a reasonable fear of death or serious bodily injury,
because “there’s no threat of death or serious bodily injury from
a . . . one-punch knockout. You’re not going to die being knocked
out or being punched. That’s not reasonable.” Counsel lodged no
objection to this line of argument.

¶18 During his closing argument, Counsel emphasized some of
the inconsistencies in Girlfriend’s account of events, and he
highlighted her statement that she sometimes embellishes stories.
Counsel also argued that Roommate had been ingesting certain
substances on the evening in question and that these substances
had “affect[ed] his thinking that night.” He specifically mentioned
alcohol—that Roommate was “intoxicated at a rate nearly three
times the legal limit for driving”—and cannabis. But when
Counsel attempted to also mention glipizide as another substance



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                        State v. Broadwater


that could have affected Roommate’s thinking because the
prescription bottle said not to take it with alcohol, the State
objected, referring to the toxicology screen and asserting that
“[t]here’s no evidence that [Roommate] actually took the
glipizide.” The court sustained that objection, and did not allow
Counsel to continue arguing that glipizide might have affected
Roommate’s thinking that night. But Counsel was able to continue
arguing that the other substances Roommate had ingested—
including alcohol and cannabis—influenced Roommate and
affected his thinking.

¶19 Counsel also made extensive argument about bullet
trajectory. He pointed out that the presumed bullet mark on the
doorframe was located some 33 inches above the floor, but that
the bullet exited Roommate’s back about 46 inches from the floor.
Counsel then stated that “from the time that the bullet left
[Roommate’s] body until it impacted the doorframe, it dropped
by approximately 13 inches,” and he argued from these facts that
it was “not physically possible” for Roommate to have been
standing in the doorframe when he was shot. He asserted that
Girlfriend’s testimony to that effect was therefore not believable,
and he argued that these facts supported Broadwater’s contention
that Roommate had been coming at him from further down the
hallway when the shot was fired.

¶20 Counsel also offered a response to the State’s “one-punch
knockout” comments. To start with, Counsel argued that it was
“a reasonable thing” for Broadwater to be in fear of a 380-pound
man “walking towards him closed fist” saying, “I’m going to beat
you up.” Then Counsel argued as follows:

      And the prosecutor said, well, that’s not going to kill
      you. Maybe he’ll one punch knock you out, but you
      won’t die. Each of you ask yourselves in that
      situation, you’re in your own home and somebody
      is going to knock you out and his conclusion is, well,



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                        State v. Broadwater


      that’s okay, you’re not going to die from it. Is that
      reasonable to you? I don’t think that is. I think you
      have a right to not be beat up in your own home.

¶21 In the State’s rebuttal closing argument, the prosecutor
responded to Counsel’s bullet trajectory assertions. He pointed
out that the bullet’s entry wound was about 50 inches from the
ground, meaning that the bullet had descended some four inches
between its entry and exit points. He then hypothesized that
Roommate’s chest may have been “about a foot thick,” and he
began to argue about what that may have meant for Roommate’s
location. At this point, Counsel objected, pointing out that no
facts were in evidence about the thickness of Roommate’s chest.
During a sidebar for which the record is partially missing (as
“inaudible”), the court appears to have sustained Counsel’s
objection. At any rate, after the sidebar there was no further
discussion of Roommate’s exact chest size, but the State continued
to argue about bullet trajectory generally, making the point
that Roommate “couldn’t have been all the way out to 10 feet”
into the hallway “for the bullet to hit that doorframe at 32 and a
half plus inches,” because “[t]hat’s only 13 inches down over a
course of 10 feet where it had already dropped . . . almost 4 and a
half inches just through [Roommate’s] chest.” The State summed
the matter up by arguing that the bullet “evidence clearly doesn’t
support [Broadwater’s] theory . . . that [Roommate] was all the
way . . . out here at this door [either the bathroom door or the
spare bedroom door] when he shot him. It’s just not possible.”
Other than the objection to the State’s assertions about
Roommate’s specific chest size, the record contains no indication
that Broadwater lodged any objection to the State’s arguments
about bullet trajectory.

¶22 At the conclusion of argument, the jury began its
deliberation, and it eventually found Broadwater guilty on both
counts; in the process, it also made a specific determination that
the State had proved, beyond a reasonable doubt, that Broadwater


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                         State v. Broadwater


had not acted in self-defense. Later, the trial court sentenced
Broadwater to prison.


             ISSUES AND STANDARDS OF REVIEW

¶23 Broadwater now appeals his convictions, and he asks us to
consider three issues. First, he takes exception to the trial court’s
ruling preventing Counsel from arguing, during closing
argument, that the jury could infer that Roommate had taken
glipizide on the day of the crime. As far as we are aware, no Utah
appellate court has yet discussed the proper standard of review
in this situation, but other courts have, and “limitations placed by
a [trial] court on closing arguments are reviewed by [appellate
courts] only for abuse of discretion.” See United States v. Apperson,

 (10th Cir. 2006); see also United States v. Wiley,

 (4th Cir. 2024) (“[W]e review a [trial] court’s
limitation on closing argument for abuse of discretion.”), cert.
denied, 

 (2024); 75A Am. Jur. 2d Trial § 447 (2024)
(“The scope and substance of closing arguments are subject to
control by the trial court, and . . . appellate courts will not reverse
a trial court’s decision absent an abuse of discretion.”); cf. State v.
Gollaher, 

, 

 (“We review a trial
court’s evidentiary rulings for an abuse of discretion, and we will
not reverse the trial court’s ruling on evidentiary issues unless it
is manifest that the trial court so abused its discretion that there is
a likelihood that injustice resulted.” (quotation simplified)).

¶24 Next, Broadwater argues that the evidence was insufficient
to disprove self-defense beyond a reasonable doubt. Broadwater
recognizes that he failed to preserve this issue for appellate
review; his directed verdict motion went only to a jurisdictional
issue and not to the sufficiency of the evidence disproving self-defense. “When a party fails to raise and argue an issue in the trial
court, it has failed to preserve the issue, and an appellate court
will not typically reach that issue absent a valid exception to



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                        State v. Broadwater


preservation.” State v. Reid, 

, 

(quotation simplified). Here, Broadwater asks us to review this
issue for plain error and ineffective assistance of counsel. “Plain
error is a question of law reviewed for correctness.” State v. Popp,

, 

 (quotation simplified). And
“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.” Id. ¶ 17
(quotation simplified).

¶25 Finally, Broadwater assails the propriety of the State’s
arguments, made during closing, about the bullet’s trajectory and
the reasonableness of fearing death or serious injury from a single
punch. But Broadwater lodged no objection to these arguments at
trial, and those objections are therefore not preserved for our
review. As with the previous issue, Broadwater asks us to review
these issues for plain error and ineffective assistance.


                            ANALYSIS

¶26 We first discuss the only issue preserved for appellate
review: Broadwater’s complaint that the trial court abused its
discretion by not allowing Counsel to argue about glipizide
during closing argument. We then address the unpreserved issues
that Broadwater asks us to review for plain error and ineffective
assistance of counsel.

    I. The Preserved Issue: Limitation on Closing Argument

¶27 Broadwater challenges the trial court’s ruling preventing
Counsel from arguing, during his closing argument, that one of
the substances that could have negatively affected Roommate’s
thinking on the night in question was glipizide. Broadwater
correctly points out that attorneys have “considerable latitude” in



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                          State v. Broadwater


closing argument to discuss the evidence and ask the factfinder to
draw reasonable inferences from it. See Reid, 

 (stating that attorneys have “considerable latitude” during
closing argument “concerning the issues they raise and have the
right to fully discuss from their perspectives the evidence and all
inferences and deductions it supports” (quotation simplified)).
But not all errors require reversal, and even if we assume—
without deciding and merely for purposes of the discussion—that
the trial court abused its discretion by limiting Counsel’s
argument in this way, we discern no prejudice as a result, and we
reject Broadwater’s argument on that basis.

¶28 We will not reverse an erroneous discretionary ruling
“unless it is manifest that the trial court so abused its discretion
that there is a likelihood that injustice resulted.” Gollaher, 

 (quotation simplified). In a similar context, we have
stated that “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. Zimpfer, 

, 

 (quotation simplified).

¶29 To determine whether there is a reasonable likelihood
that the error affected the outcome of the proceedings, we
envision a hypothetical trial in which Counsel was able to
make the argument that glipizide—along with alcohol and
cannabis—affected Roommate’s thinking on the night in
question. See State v. Ellis, 

, 

 (stating that
“[p]rejudice analysis is counterfactual,” and that when courts
are deciding “whether a trial affected by error is reasonably likely
to have turned out differently we have to consider a
hypothetical—an alternative universe in which the trial went off
without the error”). We assess whether, in the hypothetical trial,
Broadwater would have been reasonably likely to obtain a
different result.




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                          State v. Broadwater


¶30 On these facts, we perceive no reasonable chance that the
trial would have turned out differently had the jury heard
Counsel’s additional argument about glipizide. Despite the
limitation the court placed on his argument, Counsel was
nevertheless able to make the point, by reference to two other
substances (alcohol and cannabis), that Roommate’s thinking may
have been clouded during the incident. Adding to the argument
a third substance—one that apparently is only problematic when
mixed with one of the others (alcohol)—is unlikely to have
materially moved the needle. In addition, the jury was already
aware of the potential issues with glipizide because Counsel
cross-examined Examiner about the drug and its effects, asking
specifically about whether it “tends to amplify the effects of
alcohol on the body.” For this additional reason, allowing Counsel
to re-emphasize the point during closing argument is unlikely to
have changed the outcome.

¶31 Accordingly, we conclude that any error in limiting
Counsel’s closing argument about glipizide was harmless. On
that basis, we reject Broadwater’s preserved challenge to the
court’s ruling restricting Counsel’s argument.

                       II. Unpreserved Issues

¶32 Broadwater also raises several issues that were not
preserved for appellate review, and he asks us to review these
issues for plain error and ineffective assistance of counsel.

¶33 “To demonstrate plain error, a defendant must establish
that (i) an error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful.” State v. Carrera, 

, ¶ 22, 

 (quotation simplified), cert. denied,

 (Utah 2023).

¶34 To demonstrate ineffective assistance, a defendant must
make a two-part showing. First, “the defendant must show that



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                        State v. Broadwater


counsel’s performance was deficient,” which “requires showing
that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Strickland v. Washington, 

(1984). Second, “the defendant must show that the deficient
performance prejudiced the defense,” which “requires showing
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” 

 A
defendant must prove both elements to be successful. See 

Because “failure to establish either prong of the test is fatal to an
ineffective assistance of counsel claim, we are free to address
[such claims] under either prong.” State v. Popp, 

, 

 (quotation simplified). And if a claim is infirm
under one of the prongs, then “the claim fails and the court need
not address the other.” State v. Nelson, 

, 

.

¶35 To demonstrate deficient performance, the defendant must
show that “counsel’s representation fell below an objective
standard of reasonableness.” Popp, 

(quotation simplified). In evaluating the reasonableness of
counsel’s actions, courts will often look to whether the actions
counsel took were motivated by trial strategy. See State v. Scott,

, 

 (“To be sure, the performance
inquiry will often include an analysis of whether there could have
been a sound strategic reason for counsel’s actions.”). And while
“the ultimate question is not whether there was a possible
strategic reason for counsel’s conduct, but instead whether that
conduct was objectively reasonable,” see 

 “[i]f it appears
counsel’s actions could have been intended to further a reasonable
strategy, a defendant has necessarily failed to show unreasonable
performance,” State v. Ray, 

, 

.
“Because the decision not to pursue a futile motion is almost
always a sound trial strategy, counsel’s failure to make a motion
that would be futile if raised does not constitute deficient



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                        State v. Broadwater


performance.” State v. Orton, 

, 

(quotation simplified).

¶36 Broadwater raises two categories of claims in this regard.
First, he argues that the State’s evidence was insufficient to
disprove self-defense beyond a reasonable doubt, and he asserts
that the trial court plainly erred by not sua sponte directing a
verdict in his favor and that Counsel rendered ineffective
assistance by not making a broader motion for directed verdict.
Second, he argues that two lines of argument in the State’s closing
were improper, and he maintains that the trial court plainly erred
by not sua sponte intervening and striking those lines of argument
and that Counsel rendered ineffective assistance by not objecting
to them. We discuss each category of claims in turn.

A.     Sufficiency of the Evidence

¶37 First, Broadwater asserts that the evidence was insufficient
to disprove his self-defense theory. And in connection with this
argument, Broadwater claims—citing State v. Robbins, 

,
210 P.3d 288—that Girlfriend’s testimony was inherently
improbable and therefore should not be considered in any
sufficiency-of-the-evidence analysis. We see no merit in these
arguments: there was no error at all by the trial court, and Counsel
did not perform deficiently because reasonable counsel could
have concluded that a Robbins motion and a directed verdict
motion would have been futile.

¶38 When considering insufficiency claims that have a Robbins
component, “our analysis has two parts.” State v. Barnes, 

, 

, cert. denied, 

 (Utah 2024).
First, we consider the evidence the movant claims is inherently
improbable—here, Girlfriend’s testimony—to assess “whether
the challenged piece of evidence is of such a poor quality that it
should be disregarded.” See State v. Jok, 

, 

. Our determination of this question will dictate the



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                         State v. Broadwater


“dimensions of the universe of evidence” that may be considered
in the ensuing sufficiency-of-the-evidence analysis. Barnes, 

 (stating that, “[g]iven the relationship between”
the two parts of the argument, we should examine the “inherent
improbability claim first, then address [the] sufficiency claim only
after we know the dimensions of the universe of evidence we are
allowed to consider”); see also State v. Skinner, 

,

 (“[A] defendant who raises [an inherentimprobability] claim . . . is asking the court, in conducting its
sufficiency-of-the-evidence review, to examine only a particular
subset of the admitted evidence, and to disregard certain witness
testimony before undertaking that review.”).

¶39 Second, we undertake our sufficiency analysis, considering
all evidence that has not been excluded from consideration on
grounds of inherent improbability. For instance, if we determine
that the challenged testimony is inherently improbable, we “then
determine if sufficient evidence remains under which a
reasonable jury could have convicted.” See Jok, 

.
“On the other hand, if we determine that the challenged evidence
is not inherently improbable, our sufficiency-of-the-evidence
analysis will include the challenged evidence.” Barnes, 

. In that situation, we will consider “all admitted
evidence to determine if some evidence exists that could support
the verdict,” since “it is ordinarily not the court’s place to
disregard any particular items of admitted evidence.” Skinner,

 (quotation simplified).

¶40 Turning first to the Robbins part of the analysis, then, we
observe that testimony is considered “inherently improbable”
only if it “run[s] so counter to human experience that it renders
the testimony inappropriate for consideration in sustaining a
finding of guilt.” See Jok, 

 (quotation simplified).
Indeed, our supreme court has noted that labeling a witness’s
testimony as “inherently improbable” should be reserved for
“rare cases.” See id. ¶ 31; see also State v. Rivera, 

,


 20220529-CA                     17               

                         State v. Broadwater


¶ 23 n.6, 

 (“A case which actually falls within the
Robbins . . . rubric is exceedingly rare.”). This is because “appellate
courts typically do not make credibility determinations” and
generally resolve any arguments about “conflicts in the evidence
in favor of the jury verdict.” Jok, 

 (quotation
simplified); see also State v. Prater, 

, 

(stating that appellate courts “are not normally in the business of
reassessing or reweighing evidence”).

¶41 The test that we apply in considering whether testimony
is inherently improbable is “whether the challenged piece of
evidence is of such a poor quality that it should be disregarded
as evidence.” Jok, 

. And in cases in which
the State’s case is “based primarily” on the challenged testimony,
the analysis turns on “whether the testimony could support a
conviction or whether reasonable minds must have entertained a
reasonable doubt that the defendant committed the crime for
which he or she was convicted.” Id. ¶¶ 1, 19 (quotation
simplified). In undertaking this inquiry, courts are to consider
the situation as a whole, including the context in which the
testimony was offered, and are not to consider themselves
limited to any list of factors. See id. ¶ 32 (stating that there is
no “strictly factored test”). There are three hallmarks of
inherently improbable testimony that courts have often
considered in their analysis: “material inconsistencies, patent
falsehoods, and lack of corroborating evidence.” Id.; see also
Prater, 

 (“It was the inconsistencies in the
child’s testimony plus the patently false statements the child made
plus the lack of any corroboration that allowed this court to
conclude that insufficient evidence supported Robbins’s
conviction.”). But our supreme court has warned “against
inflexible reliance on these [three] factors.” See Jok, 

. Courts are still allowed—and perhaps even encouraged—to
examine these three factors, but courts must avoid robotic reliance
on them. 

 20220529-CA                      18               

                        State v. Broadwater


¶42 With these principles in mind, we address Broadwater’s
specific arguments regarding Girlfriend’s testimony. His main
complaint is that Girlfriend’s statement that Roommate was
standing “in the door jam” when he was shot was physically
impossible given the bullet evidence. But as noted, Girlfriend’s
testimony was not entirely consistent on this score: during her
direct examination by the State, she testified that Roommate was
“out in the hallway,” and she initially reiterated this even on
cross-examination, stating that Roommate “went out of the room”
after answering the knock at the bedroom door and that
Roommate and Broadwater “were having a conversation in the
hall.” To be sure, she later testified on cross-examination, in
response to follow-up questioning, that Roommate was standing
“in the door jam” during the entire discussion and when the shot
rang out. But her testimony cannot be said to be “physically
impossible” given the fact that she wasn’t entirely clear about
where Roommate was standing when he was shot.

¶43 Which leads us to Broadwater’s other complaint about
Girlfriend’s testimony: that it was “riddled with inconsistencies
on nearly every meaningful detail.” Girlfriend’s testimony
certainly did contain inconsistencies. See supra ¶¶ 8, 15. But as we
have pointed out, “this is true with regard to many complaining
witnesses; indeed, it would be a rare case in which defense
counsel could identify no inconsistencies in the account given by
the State’s main witness.” Barnes, 

. In order
to constitute the sort of discrepancies that would raise inherentimprobability concerns, the inconsistencies in question need to be
“[s]ubstantial.” See Robbins, 

 (“Substantial
inconsistencies in a sole witness’s testimony . . . can create a
situation where the prosecution cannot be said to have proven the
defendant’s guilt beyond a reasonable doubt . . . .” (emphasis
added)); see also Prater, 

 (“The question of which
version of [the witnesses’] stories was more credible is the type of
question we routinely require juries to answer.”); In re J.R.H., 2020



 20220529-CA                     19              

                       State v. Broadwater


UT App 155, ¶ 11, 

 (stating that we do not “apply
Robbins to garden-variety credibility questions, such as which
witness to believe, or which version of a witness’s conflicting
account to believe”).

¶44 In our view, the inconsistencies Broadwater identifies in
Girlfriend’s testimony do not rise to a level at which reasonable
minds could not have believed the material portions of
Girlfriend’s account. Many of the inconsistencies—for instance,
how “heavy” Broadwater’s knock was or who had been taking
drugs that night—involved tangential issues that had only
indirect relevance to the issue at hand: whether Broadwater acted
in self-defense. And even the major inconsistency—where
Roommate had been standing when he was shot—involved a
matter of perception about which a person could potentially
simply be mistaken; indeed, Girlfriend also testified that she was
distracted during the incident—she was looking at her phone and
listening to music—and that she only “looked up” at the men
twice during their discussion.

¶45 Like our supreme court similarly concluded in Prater and
Jok, we conclude here that the inconsistencies in Girlfriend’s
testimony were not so pervasive and material as to render the
entirety of her testimony inherently improbable. See Jok, 

 (stating that the witness’s statements “do not approach
the level of inconsistency that may cause us to disregard a
testimony”); Prater, 

 (stating that “the
inconsistencies in [the witnesses’] accounts by themselves are
insufficient to invoke the inherent improbability exception”
(quotation simplified)). “The question of which version of
[Girlfriend’s story] was more credible is the type of question we
routinely require juries to answer.” See Prater, 

.
Accordingly, we conclude that Girlfriend’s testimony was not so
inherently improbable as to deserve wholesale exclusion under
Robbins. Had Counsel made a Robbins motion, it would quite
likely have been denied; thus, reasonable counsel could have


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                        State v. Broadwater


decided not to bring such a motion. And for the same reasons, the
trial court did not err by not sua sponte intervening to exclude
Girlfriend’s testimony.

¶46 Because Girlfriend’s testimony is not subject to exclusion
under Robbins, it must be included in the universe of evidence
that we consider in our broader sufficiency-of-the-evidence
analysis. And considering that testimony along with all the
other evidence the State presented at trial, we conclude that
the State presented sufficient evidence for a jury to find, beyond
a reasonable doubt, that Broadwater did not act in self-defense.

¶47 Under Utah law, a person is “justified in using force
intended or likely to cause death or serious bodily injury only if
the individual reasonably believes that force is necessary to
prevent death or serious bodily injury to the individual or
another individual as a result of imminent use of unlawful
force.” Utah Code § 76-2-402(2)(b). Certainly, some evidence
supported Broadwater’s position that he reasonably believed that
deadly force was necessary to defend himself. Indeed,
Broadwater told 911 dispatchers that Roommate had been
“threatening” him, and Broadwater took the stand and told the
jury the same thing; under these circumstances, the jury was of
course free to credit Broadwater’s testimony and version of
events.

¶48 But ample evidence also supported the State’s position.
First, while she was inconsistent about exactly where Roommate
had been standing, Girlfriend was entirely consistent in her claims
that Roommate was stationary, and was not advancing toward
Broadwater, when he was shot. Second, the physical evidence,
while perhaps not definitive, was at least somewhat supportive of
the State’s position: the location of the bullet and casing and the
damage to the doorframe, as well as the testimony from Examiner
that the shot was fired from “an intermediate range of fire,”
allowed the State to plausibly argue that Broadwater shot



 20220529-CA                    21              

                        State v. Broadwater


Roommate from a distance. Third, there was no evidence of a fight
or a struggle prior to the shooting. And finally, the State argued
that even if Broadwater’s version of events—that Roommate had
charged at him—was correct, Broadwater’s use of deadly force in
response to an unarmed friend’s anger was not reasonably
justified in any event.

¶49 Because sufficient evidence supported the State’s position,
the trial court did not err at all, let alone plainly so, by allowing
the matter to proceed to the jury for decision. For the same reason,
any directed verdict motion Counsel might have made would
have been futile, and therefore Counsel did not perform
deficiently by declining to make such a motion. On this basis, we
reject Broadwater’s plain error and ineffective assistance claims
related to sufficiency of the evidence.

B.     Closing Argument

¶50 Next, Broadwater takes issue with two matters argued by
the prosecutor during the State’s closing argument. But because
Counsel lodged no objection to these lines of argument,
Broadwater now asks us to review these issues for plain error and
ineffective assistance. We reject Broadwater’s arguments, because
he has not carried his burden of demonstrating either plain error
or ineffective assistance of counsel.

¶51 First, he asserts that the prosecutor shouldn’t have
been allowed to argue that it was “not reasonable” for
Broadwater to think that he might have suffered death or
serious bodily injury from a “one-punch knockout.” He takes
particular issue with the prosecutor saying, “[T]here’s no threat of
death or serious bodily injury from a . . . one-punch knockout.
You’re not going to die being knocked out or being punched.” He
asserts that this statement is incorrect, and he cites media sources
indicating that, on occasion, people do in fact die from a one-punch assault.



 20220529-CA                     22              

                         State v. Broadwater


¶52 We have already noted that attorneys have “considerable
latitude” during closing argument. See State v. Reid, 

, 

 (quotation simplified). In this instance, the
prosecutor’s argument about one-punch knockouts was not so far
outside that latitude as to warrant sua sponte judicial
involvement. And reasonable counsel could have decided—as
Counsel here apparently did—to forgo an objection and simply
respond to the State’s point in a responsive argument. Indeed,
Counsel responded to the State’s theory by arguing that even if
the threat of death from a one-punch assault was low, the threat
of injury wasn’t, and that a homeowner has every right to defend
himself against an assault. We are not convinced that such a trial
strategy was unreasonable under the circumstances.

¶53 And finally, even if we were to assume—for purposes of
the discussion only—that Counsel performed deficiently by
electing not to lodge an objection to the State’s “one-punch
knockout” line of argument, we are unpersuaded that a different
outcome to the trial would have been reasonably probable. See
State v. Tuinman, 

, 

 (“Prejudice
exists when there is a reasonable probability that the case would
have had a different outcome had trial counsel not performed
deficiently.” (quotation simplified)), cert. denied, 

 (Utah
2023). Even had such an objection been granted and the “one-punch knockout” argument stricken from the record, the outcome
of the trial would quite likely have been the same. That
argument—especially after Counsel offered his response—was
simply not powerful enough to have meaningfully moved the
needle in this case.

¶54 Second, Broadwater takes issue with the prosecutor’s
argument regarding bullet trajectory. He takes particular issue
with the prosecutor’s statement that Broadwater’s claim
regarding Roommate’s location at the time of the shooting—that
he was well out into the hallway and was shot at close range—




 20220529-CA                     23               

                        State v. Broadwater


was “just not possible.” 2 But Broadwater overlooks the fact that
Counsel himself made detailed bullet trajectory arguments
during his own closing argument, not only discussing the height
at which the bullet had exited Roommate’s body and struck the
doorframe, but also specifically asserting that it was “not
physically possible” for Roommate to have been standing in the
doorframe when he was shot. The State was entitled to respond
to these arguments in its rebuttal, and in this context the
prosecutor’s discussion of bullet trajectory, including his
statement that Broadwater’s position also was “just not possible,”
was a completely “fair reply” to Counsel’s preceding argument.
See State v. Redcap, 

, 

 (“The
doctrine of fair reply allows a prosecutor to make a counteracting
statement after defense counsel opens the door on the issue.”
(quotation simplified)), abrogated on other grounds as recognized by
State v. Hosman, 

, 

; see also Darden v.
Wainwright, 

 (1986) (stating that “prosecutors’
comments must be evaluated in light of the defense argument that
preceded it”). Under these specific circumstances, the trial court
did not err at all, let alone plainly so, by not sua sponte


2. In his list of issues presented for review, Broadwater lists this
issue as one that should be reviewed only for plain error and
ineffective assistance of counsel, thus appearing to acknowledge
that the issue is unpreserved. But in two footnotes set forth later
in his brief, Broadwater notes that Counsel did lodge an objection
to the argument about Roommate’s chest size, and he briefly
implies that this issue might be preserved after all. Broadwater
has not persuaded us, in these two short footnotes, that a broader
objection to the entire line of argument about bullet trajectory was
preserved. Moreover, our review of the record leads us to
conclude that Counsel’s objection was limited merely to evidence
about chest size. See supra ¶ 21. We therefore address this issue as
Broadwater asks us to in his list of issues presented for review: for
plain error and ineffective assistance.


 20220529-CA                     24              

                       State v. Broadwater


intervening to strike the State’s argument. And reasonable
counsel could readily have believed that the State’s bullet
trajectory argument was a fair response to the comments Counsel
had made just minutes earlier on the same topic, and on that basis
forgone an objection.

¶55 Accordingly, Broadwater has not carried his burden of
demonstrating either plain error or ineffective assistance of
counsel with regard to the challenged portions of the State’s
closing argument.


                         CONCLUSION

¶56 With regard to the preserved challenge regarding the
limitation the trial court placed on Counsel during closing
argument, Broadwater has not demonstrated that any error was
harmful to him. And with regard to the unpreserved issues,
Broadwater has not demonstrated that the trial court plainly erred
or that Counsel rendered ineffective assistance. Accordingly, we
reject Broadwater’s arguments and affirm his convictions.




 20220529-CA                   25