District Court, Salt Lake Department The Honorable Vernice S.
Trease No. 141900233
L. Pankratz and David M. Corbett, Attorneys for Appellant
D. Reyes and William M. Hains, Attorneys for Appellee
David N. Mortensen authored this Opinion, in which Judges
Gregory K. Orme and Stephen L. Roth concurred. 
Defendant Oston Shiloh Fairbourn was shot three times after
lunging at Officer with a seven-inch blade. A jury found
Defendant guilty of attempted aggravated murder. We now
consider whether Defendant's claims of prosecutorial
misconduct and evidentiary error warrant reversal of his
conviction. We conclude they do not and affirm.
Because Defendant appeals from a jury verdict, "we
recite the facts from the record in the light most favorable
to the jury's verdict and present conflicting evidence
only as necessary to understand issues raised on
appeal." State v. Daniels, 2002 UT 2, ¶ 2,
40 P.3d 611.
One winter evening, Defendant started walking across a busy
street without first looking either direction. His apparent
disregard for his own safety caught the attention of Officer,
who was on patrol in the area. Officer pulled into a nearby
parking lot to further observe Defendant's behavior.
Defendant eventually noticed Officer and came into the lot
where the patrol car was parked. He stood at the end of the
lot opposite of the car, looking at Officer for about thirty
seconds. Defendant then walked away, into the middle of the
street, before turning back to Officer. Believing that
Defendant was trying to provoke him, Officer called for a
single-officer backup, pulled his patrol car into the street
to block traffic, and turned on the car's overhead
Officer had stopped about twenty feet away from Defendant
when he exited his patrol car. Upon Officer's exit,
Defendant pulled out "a big knife" (with a
seven-inch blade), which he held at his waist "with his
elbow bent as if he were ready to use it." The
production of the knife was accompanied by Defendant
announcing that Officer was "about to fucking die."
In response, Officer called for more backup, drew his
firearm, pointed it at Defendant, and repeatedly ordered
Defendant to drop the knife. Rather than complying with
Officer's orders, Defendant began to move sideways.
Officer moved parallel to him, making sure Defendant
"could not attack from the side." A bystander
observed that Defendant was shifting his weight from one foot
to the other, "kind of dancing around."
Defendant turned and started moving quickly away from
Officer, and Officer followed. Defendant abruptly stopped and
turned to face Officer again, leaving somewhere from five to
twenty feet between them. He took a step toward Officer, who
told him to stop. Instead, Defendant switched his grip on the
knife, raised his arm so the hand holding the knife was near
his head, and took another step. Officer again ordered
Defendant to stop. Defendant ignored the order, lunging at
Officer, and Officer responded by shooting him three times.
Defendant was charged with attempted aggravated murder, and
the case went to a jury trial. Several pieces of evidence
presented are relevant to this appeal. First, Defendant
testified, explaining that on the night of his encounter with
Officer, he was heading to a friend's house to retrieve
his phone. He had been to the house only twice before and got
turned around on his way. He stopped in a parking lot-the lot
where Officer was parked-as he deliberated whether to
continue trying to find his friend's house or instead
make his way to his grandmother's house nearby. Defendant
had started into the street when Officer pulled up in his
patrol car. He thought about running away, uneasy because he
had a knife on him that would be difficult to explain. He
also considered discarding the knife but decided against it.
Instead, Defendant decided to continue on toward his
friend's house. He gave up on that plan when he realized
he was still disoriented and turned around to face Officer.
Officer ordered Defendant to show him his hands, and
Defendant complied, showing Officer that he had the knife.
Again being told to show his hands, Defendant raised the
knife to his shoulder. According to Defendant, his actions
were meant as a show of surrender; he "had no intention
of harming anyone that night." The next thing Defendant
remembers is waking up in a hospital.
In its brief, the State contends that while Defendant was in
the hospital, Detective gave Defendant Miranda
warnings and Defendant invoked his right to silence. But he
then "continued to talk" while Detective
"simply listened-for about seven minutes." The
topic of Defendant's monologue was his belief when first
arriving at the hospital that "he was dead" and his
feeling "that he was in hell." However, after a
thorough review of the trial testimony, we found no reference
to Detective giving Defendant Miranda warnings or of
Defendant invoking his associated rights.
While cross-examining Defendant, the prosecutor asked about
this conversation with Detective. He asked, "You
didn't say anything to [Detective] about this
misunderstanding of you trying to surrender to [Officer] when
[Detective] talked to you at the hospital, did you?"
Defendant answered that he had not. The prosecutor followed
up with, "So today in court talking to this jury here,
nine months after this happened is the first time that
we're hearing that you were trying to surrender to
[Officer], right?" Defendant answered, "Yes. I
didn't say anything to [Detective]." The prosecutor
then highlighted this exchange during his closing argument:
I want to bring up three important things about the
defendant's testimony that I'd like you to consider
in light of these elements that you've read about in
these instructions. First of all, everything that the
defendant told you today, he had the chance to say before.
When he was talking to [an officer] at the scene, he had an
interview with [Detective] after-
prosecutor was interrupted by Defendant's trial attorney
objecting that the prosecutor was "shifting the burden
of proof." The trial court stated, "I don't
think it's burden shifting, " and allowed the
closing argument to proceed.
During the cross-examination, the prosecutor further pressed
Defendant on his version of events when he asked Defendant to
explain the discrepancies between his testimony and the
testimony of eyewitnesses:
[Prosecutor]: And you heard these witnesses when they told
the jury that they saw you holding something, some of them
said a knife but some said holding [your] hand out in front
of you as you are facing the officer, right?
[Defendant]: Yes, I heard that.
[Prosecutor]: And did you hear [another eyewitness] when he
told the jury that you were holding the knife over your head,
lunging and making a motion like that towards the officer?
[Defendant]: Yes, I heard him.
[Prosecutor]: So if you were trying to submit or surrender to
the officer and these witnesses are perceiving something
else, is it your testimony today that this is just a
misunderstanding on their part?
Defendant explained that "everyone has different
perspectives or [vantage] points."
Another pertinent exchange took place at trial when the
prosecutor elicited testimony concerning Officer's
thoughts and emotions during his interaction with Defendant.
He asked what was "personally going through
[Officer's] mind, " and Officer explained,
Um, lots of things. . . . I think people get into law
enforcement for various reasons. For me it would be difficult
to hold a desk job because I have a short attention span. And
I enjoy serving people.
My thoughts immediately shift towards my family. I've got
people that depend on me. You know, you kind of go into
a-into a-I don't know, for lack of a better term, a cop
mode to where you're professional and you try and be
courteous. And all that went out the window. Like it's
just pure survival at that point.
I don't think I gave another radio transmission out until
the aftermath of what had occurred, but yeah, for me,
it's just a matter of making it home at the end of the
night at that point.
Finally, Officer presented what Defendant refers to as
"expert testimony regarding the Twenty-one Foot Rule-a
rule of thumb for officers to use when determining when they
are most susceptible to a personal attack."
Defendant's trial attorney had objected to this
testimony, arguing that Officer's "state of mind is
not relevant" and that "the defendant's state
of mind is what's relevant." The trial court
clarified, "So I just want to make clear, your objection
is relevance?" When Defendant's trial counsel
answered in the affirmative, the trial court replied,
"Okay. For now I'm going to sustain the objection
regarding any training that he had. But if the door is opened
on cross, you cross on the officer's reaction, then the
door is opened." But later, outside the presence of the
jury, the trial court explained, "The more I think about
it, the more I think I may be in error." After receiving
a proffer from Officer as to what he would say about the
twenty-one-foot rule, the trial court changed its ruling:
"I'm going to allow the testimony as has been
The jury deliberated for more than nine hours before
returning a ...