                This opinion is subject to revision before final
                       publication in the Pacific Reporter

                                 2019 UT 6


                                   IN THE

       SUPREME COURT OF THE STATE OF UTAH

                            SALT LAKE CITY,
                               Appellee,
                                      v.
                         RANDALL JOSEPHSON,
                             Appellant.


                            No. 20150980
                        Filed January 29, 2019

            On Certification from the Court of Appeals

                    Third District, Salt Lake
             The Honorable Katie Bernards-Goodman
                        No. 141913058

                                Attorneys:
     Scott A. Fisher, Paige Williamson, Hyrum J. Hemingway,
                     Salt Lake City, for appellee
           Dayna K. Moore, Salt Lake City, for appellant


     CHIEF JUSTICE DURRANT authored the opinion of the Court,
      in which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS,
            JUSTICE PEARCE, and JUSTICE PETERSEN joined.

   CHIEF JUSTICE DURRANT, opinion of the Court:

                              Introduction
    ¶1 Randall Josephson was charged in Salt Lake City Justice
Court with one count of threat of violence, a class B misdemeanor
under Utah Code section 76-5-107. The alleged threat occurred on
September 7, 2014. While that case was pending, Salt Lake City
charged Mr. Josephson in the Third District Court with one count of
stalking, a class A misdemeanor under Utah Code section 76-5-106.5,
and one count of threat of violence, a class B misdemeanor. The
district court threat of violence charge was based on an alleged
                     SALT LAKE CITY v. JOSEPHSON
                         Opinion of the Court

threat that occurred on September 30, 2014, and the stalking charge
was based on alleged conduct occurring throughout September 2014.
Mr. Josephson argues that the district court prosecution was barred
by the earlier justice court prosecution or, alternatively, that the
district court plainly erred in failing to merge the threat of violence
and stalking charges. Because we find that neither issue was
preserved nor amounts to plain error, we affirm.
                             Background
    ¶2 Randall Josephson and D.C. were neighbors in September
2014.1 During that month, Mr. Josephson made daily threats to D.C.
On September 7, 2014, Mr. Josephson threatened D.C. Five days
later, Salt Lake City (the City) filed an information in justice court
charging Mr. Josephson with threat of violence based upon the
September 7 threat. D.C. later received a stalking injunction against
Mr. Josephson, which was served on September 20, 2014. On
September 22, 2014, Mr. Josephson was arraigned on the information
in justice court. On September 30, 2014, Mr. Josephson again
threatened D.C. The City later filed an information in district court
charging him with stalking and threat of violence based on the
September 30 threat. The next month, the information in justice court
was amended to an infraction. Two months later, Mr. Josephson
represented himself at a bench trial in justice court and was found
guilty on the threat of violence charge stemming from the September
7 threat. On March 13, 2015, he was sentenced to probation and a
fine in justice court.
    ¶3 On September 7, 2015, Mr. Josephson filed a motion in
limine in district court to exclude testimony regarding the
September 7, 2014 threat, the basis of his justice court conviction. The
next day, the City amended the information against Mr. Josephson in
district court to reflect that the stalking charge was based on conduct
during the entire month of September, rather than just September 30.
The district court heard argument on Mr. Josephson’s motion in
limine. It denied the motion and held a jury trial. At the close of
evidence, Mr. Josephson made a motion for a directed verdict on
double jeopardy grounds. That motion was denied. Mr. Josephson
was convicted on both counts. He now appeals his conviction,

_____________________________________________________________
   1 “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” USA Power,
LLC v. PacifiCorp, 2016 UT 20, ¶ 8 n.3, 372 P.3d 629 (citation omitted).


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                         Opinion of the Court

arguing that the district court prosecution was barred by the earlier
justice court prosecution or, alternatively, that the district court
plainly erred in failing to merge the convictions at sentencing.
   ¶4 Mr. Josephson timely appealed the district court’s decision.
The parties briefed the matter before the court of appeals and the
court of appeals certified the matter to this court for original
appellate review. We have jurisdiction pursuant to Utah Code
section 78A-3-102(3)(b).
                   Issues and Standard of Review
    ¶5 Mr. Josephson raises two issues on appeal: (1) whether the
trial court erred in allowing the district court prosecution for stalking
and threat of violence when Mr. Josephson had previously been
prosecuted and convicted of another threat of violence charge in
justice court, and (2) whether the district court plainly erred in
failing to merge the threat of violence conviction with the stalking
conviction.
   ¶6 Mr. Josephson argues that the first issue was preserved but
the City argues it was not. We conclude that it was not preserved,
and we accordingly review for plain error.2 Both parties agree that
the second issue was not preserved and must be reviewed for plain
error.3
                                Analysis
    ¶7 Mr. Josephson challenges his conviction in the district court
in two ways. First, he argues that the district court violated Utah
Code section 76-1-403 (the single criminal episode statute) by
permitting the state to prosecute the stalking and threat of violence
charges even though he had already been prosecuted and convicted
in justice court for conduct that allegedly formed the basis of his
district court prosecution. Second, he argues that the district court
erred by failing to merge his threat of violence conviction with his
stalking conviction. Because neither of these alleged errors
constituted plain error, we affirm Mr. Josephson’s conviction.
_____________________________________________________________
   2 State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993) (“[T]o establish
the existence of plain error and to obtain appellate relief from an
alleged error that was not properly objected to, the appellant must
show the following: (i) An error exists; (ii) the error should have
been obvious to the trial court; and (iii) the error is harmful . . . .”).
   3   Id.


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                      SALT LAKE CITY v. JOSEPHSON
                          Opinion of the Court

 I. The District Court Did Not Plainly Err By Permitting the State to
        Prosecute the Threat of Violence and Stalking Charges
   ¶8 Mr. Josephson argues that his justice court prosecution
serves as a bar of his district court prosecution under the single
criminal episode statute. The City disagrees. Additionally, the City
argues that even if the district court erred by failing to apply the
single criminal episode statute, we should nevertheless affirm the
conviction because Mr. Josephson failed to preserve this argument
below and the error, if any, does not constitute plain error. Because
we find insufficient evidence in the record to satisfy the preservation
requirement, we review Mr. Josephson’s argument under our plain
error standard. And under this standard we affirm his conviction.
  A. Mr. Josephson failed to preserve his single criminal episode argument
   ¶9 Mr. Josephson argues that he preserved his argument under
the single criminal episode statute when he asserted that the district
court prosecution was barred by the double jeopardy clauses of the
Utah and United States Constitutions. We disagree.
    ¶10 The preservation doctrine serves a number of important
policies. “One of the most important purposes of preservation is that
it allows an issue to be fully factually, procedurally, and legally
developed in the district court.”4 “[It] enables us to analyze both the
application of a legal rule or principle to a concrete and
well-developed dispute and, nearly as important, the effect of the
district court’s ruling on the overall course of the proceedings
below.”5 When parties fail to preserve issues, we do not receive “the
benefit of a trial judge’s reasoning and analysis on the issue at
hand.”6
    ¶11 The preservation doctrine also serves our “policy of
fairness” because it “generally would be unfair to reverse a district
court for a reason presented first on appeal. This is because, had the
contention now before us been raised below, [the appellee] might




_____________________________________________________________
   4   Baumann v. Kroger Co., 2017 UT 80, ¶ 25, 416 P.3d 512.
   5   Id.
   6   Id.


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                           Opinion of the Court

have countered the argument, potentially avoiding the time and
expense of appeal.”7
    ¶12 “[I]n order to preserve an issue for appeal the issue must be
presented to the trial court in such a way that the trial court has an
opportunity to rule on that issue.”8 “This requirement puts the trial
judge on notice of the asserted error and allows for correction at that
time in the course of the proceeding.”9 Three factors “help determine
whether the trial court had such an opportunity: ‘(1) the issue must
be raised in a timely fashion; (2) the issue must be specifically raised;
and (3) a party must introduce supporting evidence or relevant legal
authority.’”10 The party must put forth enough evidence that “the
issue [is] sufficiently raised to a level of consciousness before the trial
court.”11 Applying these factors, we hold that Mr. Josephson did not
preserve his single criminal episode argument below.12

_____________________________________________________________
   7 Federated Capital Corp. v. Deutsch, 2018 UT App 118, ¶ 19, 428
P.3d 51 (citations omitted) (internal quotation marks omitted).
   8 Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48
P.3d 968 (citation omitted).
   9  438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801
(citation omitted).
   10   Brookside, 2002 UT 48, ¶ 14 (citation omitted).
   11 State v. Sanchez, 2018 UT 31, ¶ 30, 422 P.3d 866 (citation
omitted) (internal quotation marks omitted).
   12  We recognize that “[w]hether a party has properly preserved
an argument . . . cannot turn on the use of magic words or phrases.”
In re Baby Girl T., 2012 UT 78, ¶ 38, 298 P.3d 1251. And “an
overlooked or abandoned argument should not compel an erroneous
result. We should not be forced to ignore the law just because the
parties have not raised or pursued obvious arguments.” Kaiserman
Assocs., Inc. v. Francis Town, 977 P.2d 462, 464 (Utah 1998). This is our
caselaw, and we are not abandoning these standards now.
Mr. Josephson did not need to utter the “magic words” of “single
criminal episode statute” to properly preserve the issue. But without
any reference to any argument besides double jeopardy, we cannot
find that this issue was ever “sufficiently raised to a level of
consciousness before the trial court.” Sanchez, 2018 UT 31, ¶ 30
(citation omitted) (internal quotation marks omitted). So we hold
that this issue is unpreserved.


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                        SALT LAKE CITY v. JOSEPHSON
                            Opinion of the Court

   ¶13 Although Mr. Josephson raised double jeopardy concerns on
several occasions both pre- and posttrial,13 at no point in any of those
arguments did he point the district court to the single criminal
episode statute argument that he now makes. This is significant
because the analysis for a double jeopardy challenge is distinct from
the analysis under the single criminal episode statute.
    ¶14 “The double jeopardy clauses of both the Utah and federal
constitutions limit the government’s ability to prosecute or punish
an individual multiple times for the same conduct.”14 The single
criminal       episode    statute,   “takes     the     matter  a    step
further[,] . . . barring prosecutions for different offenses committed as
part of a single criminal episode and otherwise meeting the terms of
the statute.”15 Because the single criminal episode statute could
apply to bar the prosecution of offenses beyond those offenses that
were already prosecuted, the statute expands the protections of
double jeopardy.16 And this expanded scope of protection will often
require courts to conduct analysis beyond what is required when
only a double jeopardy argument is raised.
    ¶15 Additionally, there is an important difference between the
operation of the protections under the single criminal episode statute
and the double jeopardy clauses. Unlike the constitutionally based
protection provided by the double jeopardy clauses, the protections
under the single criminal episode statute are limited by the language
of the statute. “The single criminal episode statute is strictly
procedural in nature. It requires that when a defendant is brought
before a court, all offenses arising from a single incident which are
triable before that court be charged at the same time.”17 To the extent

_____________________________________________________________
   13  Mr. Josephson raised the double jeopardy issue during oral
argument on his motion in limine on September 9, 2015. He again
argued this issue while objecting to a jury instruction. Finally, he
argued this issue on a motion for directed verdict and the ensuing
discussion with the trial court indicated that the court recognized the
issue, though it denied the motion.
    State v. Robertson, 2017 UT 27, ¶ 15, --- P.3d --- (citing U.S.
   14

CONST. amend. V; UTAH CONST. art. 1, § 12).
   15   State v. Ririe, 2015 UT 37, ¶ 6, 345 P.3d 1261.
   16   Id.
   17   State v. Sosa, 598 P.2d 342, 345 (Utah 1979).


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                          Opinion of the Court

that is not possible, “the state is not required to choose to prosecute
only some of the offenses committed by a defendant.”18
    ¶16 So the single criminal episode “provisions are implicated
not for all former prosecutions arising out of a single criminal episode,
but only as to former prosecutions in which the offenses in question
were ‘known to the prosecuting attorney at the time the defendant is
arraigned on the first information or indictment.’”19 For this reason, the
single criminal episode statute does not apply to any prosecutions
stemming from conduct arising after the date of the first
arraignment. This feature of the statute is significant in this case and
ultimately defeats Mr. Josephson’s preservation argument.
    ¶17 Because the single criminal episode statute does not apply to
any prosecutions stemming from conduct arising after the date of the
first arraignment, the determination of whether or not the statute
applies may often depend on the district court’s factual findings
regarding the timing of events—factual findings that might not be
relevant to the more limited focus of a double jeopardy
determination. This case illustrates the significance of this aspect of
the single criminal episode statute.
   ¶18 Here, Mr. Josephson was charged in justice court on
September 22, 2014 (first arraignment) with one count of making a
threat of violence. This charge was based solely on a threat
Mr. Josephson made on September 7. Later, the City brought charges
against Mr. Josephson in district court for conduct that occurred
throughout the month of September, including a threat made on
September 30, 2014.
    ¶19 Before the district court, Mr. Josephson argued that the
district court prosecution violated double jeopardy because he had
already been convicted in the justice court. But he did not make an
argument under the single criminal episode statute. His failure to
raise his single criminal episode arguments before the district court
deprived the court of an opportunity to conduct the necessary
analysis. Although the district court found that Mr. Josephson’s
prosecution did not implicate double jeopardy, the court never had
the opportunity to conduct the analysis on the single criminal

_____________________________________________________________
   18 Id. (“To hold otherwise would frustrate sound public policy
and circumvent the demands of justice.”).
   19   Ririe, 2015 UT 37, ¶ 10 (citing UTAH CODE § 76–1–402(2)).


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                      SALT LAKE CITY v. JOSEPHSON
                          Opinion of the Court

episode requirements. Because of this, there is no evidence in the
record as to what the prosecuting attorney knew at the time of the
first arraignment in justice court.
    ¶20 This factual deficiency hinders our appellate review and
illustrates the importance of our preservation requirements.20
Accordingly, we hold that Mr. Josephson’s single criminal episode
argument was not preserved and must be reviewed under our plain
error standard.
 B. The district court did not plainly err when it failed to apply the single
                          criminal episode statute
    ¶21 Mr. Josephson argues that the district court plainly erred
when it failed to apply the single criminal episode statute to bar the
City’s prosecution in the district court. “[T]o establish the existence
of plain error and to obtain appellate relief from an alleged error that
was not properly objected to, [Mr. Josephson] must show the
following: (i) An error exists; (ii) the error should have been obvious
to the trial court; and (iii) the error is harmful . . . .”21 Because the
error, if any, would not have been obvious to the district court, we
conclude that the court did not plainly err when it permitted
Mr. Josephson’s prosecution.22

_____________________________________________________________
   20 “The policy of judicial economy is most directly frustrated
when an appellant asserts unpreserved claims that require factual
predicates.” Patterson v. Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828.
   21 Dunn, 850 P.2d at 1208. Mr. Josephson also argues that this
issue is not susceptible to a harmless error analysis, because the
United States Supreme Court has held that double jeopardy
violations are not subject to harmless error analysis. See, e.g., Morris
v. Mathews, 475 U.S. 237, 244–45 (1986); Price v. Georgia, 398 U.S. 323,
331 (1970). Because the single criminal episode statute expands on
double jeopardy protections, it is unclear whether or how we would
conduct a harmless error analysis. But because we find any potential
error would not have been obvious, we reserve this question for
another time.
   22 We have “recognized three distinct exceptions to preservation:
plain error, ineffective assistance of counsel, and exceptional
circumstances.” State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d 443. But
because the parties have only argued for plain error review, we
decline to review the question under the other exceptions.


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                        Opinion of the Court

    ¶22 Whether the single criminal episode statute applies depends
on whether the first prosecuting attorney knew, at the time of the
first arraignment, about the conduct underlying the charges that
were later brought in the second prosecution. As discussed supra,
because Mr. Josephson never argued that the single criminal episode
statute applied to his case, neither party introduced evidence
regarding whether the first prosecutor knew about the conduct
underlying the second prosecution at the time of the first
arraignment. As a result, there was no indication on the record that
the first prosecutor knew about all the conduct underlying the
charges in the second prosecution, and it could not have been
obvious to the district court that the single criminal episode statute
applied to Mr. Josephson’s case. Accordingly, Mr. Josephson’s claim
that the district court erred in allowing the prosecution fails.
   II. The District Court Did Not Plainly Err By Failing to Merge
  Mr. Josephson’s Threat of Violence Conviction With His Stalking
                             Conviction
    ¶23 Mr. Josephson also argues that the district court plainly
erred in failing to merge his convictions for stalking and threat of
violence at sentencing. Both parties agree that this issue was not
preserved and must be reviewed for plain error. As we noted above,
one requirement of the plain error standard is that the error
complained of should have been obvious to the district court. To
establish this, Mr. Josephson “must show that the law governing the
error was clear at the time the alleged error was made.” 23 Because
our law is unclear regarding whether the stalking and threat of
violence convictions should have been merged, we find that the
alleged error would not have been obvious to the district court and
Mr. Josephson’s claim fails.
    ¶24 We begin our analysis by noting that the court of appeals’
chief concern in certifying this case to us was to allow us to
determine “whether [under the lesser included offense provision] a
defendant may be convicted separately of stalking and also the
predicate crimes that constitute the course of conduct on which the
stalking charge was (in part) based.” Importantly, the court of
appeals noted that this “question of law has not been . . . settled by”
this court. After considering the merger doctrine, the requirements

_____________________________________________________________
   23 State v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276 (citing State v.
Eldredge, 773 P.2d 29, 35–36 (Utah 1989)).


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                        SALT LAKE CITY v. JOSEPHSON
                            Opinion of the Court

of the stalking and threat of violence statutes, and relevant caselaw,
we agree with the court of appeals that the law on this point is
unclear.
     ¶25 Merger “is a judicially-crafted doctrine available to protect
criminal defendants from being twice punished for committing a
single act that may violate more than one criminal statute.”24 In
Utah, the legislature “codified the merger doctrine in statute,
providing that ‘[a] defendant may be convicted of an offense
included in the offense charged but may not be convicted of both the
offense charged and the included offense.’”25 This is true unless the
legislature includes an anti-merger provision, specifically indicating
its intent that the offenses not merge.26
    ¶26 In resolving merger questions, “the determination to be
made is whether the legislature intended an offense to be a lesser
included offense of another.”27 Lesser included offenses are
“established by proof of the same or less than all the facts required to
establish the commission of [another] offense.”28 In other words,
“where the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not.”29



_____________________________________________________________
   24 State v. Smith, 2005 UT 57, ¶ 7, 122 P.3d 615 (citation omitted)
(internal quotation marks omitted); see also State v. Williams, 2007 UT
98, ¶ 13, 175 P.3d 1029 (“The merger doctrine derives from the
constitutional guarantee that a person may not be held accountable
twice for the same criminal conduct.” (citations omitted)).
   25Williams, 2007 UT 98, ¶ 13 (alteration in original) (quoting
UTAH CODE § 76-1-402(3)).
   26   Smith, 2005 UT 57, ¶ 11.
   27 State v. Bond, 2015 UT 88, ¶ 69, 361 P.3d 104 (citation omitted)
(internal quotation marks omitted); see also Albernaz v. United States,
450 U.S. 333, 344 (1981) (“Thus, the question of what punishments
are constitutionally permissible is not different from the question of
what punishments the [legislature] intended to be imposed.”).
   28   UTAH CODE § 76-1-402(3)(a).
   29   Blockburger v. United States, 284 U.S. 299, 304 (1932).


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                               Opinion of the Court

    ¶27 “Utah courts apply a two-tiered analysis to identify lesser-
included offenses.”30 Under the first tier, if the “two crimes are such
that the greater cannot be committed without necessarily having
committed the lesser, then . . . they stand in the relationship of
greater and lesser offenses, and the defendant cannot be convicted or
punished for both.”31 That analysis is not sufficient here, because
both the stalking and threat of violence statutes have multiple
variations. Where, as here, the two crimes charged have multiple
variations, it is possible that under one variation, an offense would
be a lesser-included offense, but under another variation it would
not be. So we proceed to the second tier of the analysis and “consider
the evidence [used at trial] to determine whether the greater-lesser
relationship exists between the specific variations of the crimes
actually proved at trial.”32 So we turn to an examination of the
stalking and threat of violence statutes and their variations.
    ¶28 The stalking statute requires proof that a person
“intentionally or knowingly engages in a course of conduct directed
at a specific person and knows or should know that the course of
conduct would cause a reasonable person: (a) to fear for the person’s
own safety or the safety of a third person; or (b) to suffer other
emotional distress.”33 “Course of conduct” is defined as “two or
more acts directed at or toward a specific person, including: (i) acts
in which the actor follows, monitors, observes, photographs,
surveils, threatens, or communicates to or about a person.”34
Additionally, a “person is guilty of stalking who intentionally or
knowingly violates: (a) a stalking injunction issued pursuant to Title
77, Chapter 3a, Stalking Injunctions.”35
   ¶29 The stalking statute provides that this “section does not
preclude the filing of a criminal information for stalking based on the
same act which is the basis for the violation of the stalking injunction
_____________________________________________________________
   30   State v. Ross, 951 P.2d 236, 241 (Utah Ct. App. 1997).
   31 State v. Hill, 674 P.2d 96, 97 (Utah 1983) (citation omitted)
(internal quotation marks omitted).
   32State v. Chukes, 2003 UT App 155, ¶ 10, 71 P.3d 624 (citation
omitted).
   33   UTAH CODE § 76-5-106.5(2).
   34   Id. § 76-5-106.5(1)(b).
   35   Id. § 76-5-106.5(3).


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                                Opinion of the Court

issued pursuant to [the stalking statute], or a permanent criminal
stalking injunction.”36 Here, that would mean that the September 30
violation of the stalking injunction could be prosecuted in addition
to the stalking charge itself. Although the City largely presented the
issue to the jury under the course of conduct theory, this violation of
the stalking injunction would also satisfy the elements of stalking.
    ¶30 In contrast, the threat of violence statute requires proof that
either “the person threatens to commit any offense involving bodily
injury, death, or substantial property damage, and acts with intent to
place a person in fear of imminent serious bodily injury, substantial
bodily injury, or death”37 or “the person makes a threat,
accompanied by a show of immediate force or violence, to do bodily
injury to another.”38
    ¶31 But even if offenses would otherwise be considered lesser
included offenses, the legislature may still, by statute, prohibit those
offenses from merging. We have held that “if the legislature intends
to preclude [the lesser included offense provision] from requiring
merger in a specific instance, it must clearly indicate that” intent.39
“Only when such an explicit indication of legislative intent is present
in the specific offense statute will we consider it appropriate to
exempt that statute from operation of the general merger
requirements in [the lesser included offense provision].”40
    ¶32 The City argues that subsection (5) of the threat of violence
statute operates as an anti-merger provision, or an “explicit
indication of legislative intent” against merger. This section states
that a “person who commits an offense under this section is subject
to punishment for that offense, in addition to any other offense
committed, including the carrying out of the threatened act.”41
   ¶33 Mr. Josephson argues that the language of this provision is
not explicit enough to be construed as an anti-merger provision. He
asserts that the legislature makes it clear when a statute is exempted

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   36   Id. § 76-5-106.5(16).
   37   Id. § 76-5-107(1)(a).
   38   Id. § 76-5-107(1)(b).
   39   Smith, 2005 UT 57, ¶ 11.
   40   Id.
   41   UTAH CODE § 76-5-107(5).


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                         Opinion of the Court

from this doctrine.42 He points to several statutes that provide
exemptions to the merger provision, all of which use the word
“merge” explicitly.43 In response the City points to two additional
statutes that contain similar provisions but do not actually include
the word “merge.”44
   ¶34 As the debate between the parties in this case demonstrates,
there is no clearly established law resolving this issue. Indeed, this is
a complicated issue with many moving parts. But we need not
resolve this issue as part of our plain error review. Because of the
admittedly unsettled nature of this area of law, we cannot say that
the error should have been obvious to the trial court. So the error, if
any, was not plain error, and Mr. Josephson’s claim must fail.45
                              Conclusion
   ¶35 Neither of Mr. Josephson’s arguments was adequately
preserved below. Given the complexity of both issues that are before

_____________________________________________________________
   42See, e.g., id. § 76-1-405 (explicitly defining instances when a
subsequent prosecution is not barred by a former prosecution).
   43 See,    e.g.,    id.   § 76-5-202(5)(a)    (“Any     aggravating
circumstance . . . that constitutes a separate offense does not merge
with the crime of aggravated murder.”); id. § 76-5-203(5) (“Any
predicate offense . . . that constitutes a separate offense does not
merge with the crime of murder.”); id. § 76-8-508(3) (“The offense of
tampering with a witness or soliciting or receiving a bribe under this
section does not merge with any other substantive offense
committed in the course of committing any offense under this
section.”); id. § 76-8-508.3(4) (“The offense of retaliation against a
witness, victim, or informant under this section does not merge with
any other substantive offense committed in the course of committing
any offense under this section.”).
   44 See id. § 58-37-8(7) (“A person may be charged and sentenced
for a violation of this section, notwithstanding a charge and sentence
for a violation of any other section of this chapter.”); id. § 76-6-202(3)
(“A violation of this section is a separate offense from any of the
offenses listed in Subsections (1)(a) through (g), and which may be
committed by the actor while in the building.”).
   45This leaves an important question unanswered. But it would be
inappropriate to reach this question given that the court did not
plainly err.


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                    SALT LAKE CITY v. JOSEPHSON
                        Opinion of the Court

us and the fact that the law was unsettled, we cannot charge the trial
court with plain error. Accordingly, we affirm.




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