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

                               2018 UT 31


                                   IN THE

      SUPREME COURT OF THE STATE OF UTAH

                         STATE OF UTAH,
                  Respondent and Cross-petitioner,
                                      v.
                    JAMES RAPHAEL SANCHEZ,
                  Petitioner and Cross-respondent.


                             No. 20160891
                           Filed July 5, 2018

           On Certiorari to the Utah Court of Appeals

                    Third District, Salt Lake
               The Honorable Denise P. Lindberg
                        No. 111903659

                                Attorneys:
 Sean D. Reyes, Att’y Gen., Karen A. Klucznik, Asst. Solic. Gen.,
       Salt Lake City, for respondent and cross-petitioner
    Teresa L. Welch, Ralph W. Dellapiana, Salt Lake City, for
                petitioner and cross-respondent

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

   JUSTICE HIMONAS, opinion of the Court:
                          INTRODUCTION
    ¶1 For more than seven hours, James Sanchez viciously
tortured his girlfriend, ultimately causing her death. Mr. Sanchez
contends that he was under extreme emotional distress at the time
because the victim allegedly told him that she was cheating on
him with his brother and refused to promise she would stop. If
proven, Mr. Sanchez’s extreme emotional distress would be a
special mitigating factor reducing the level of offense from
                         STATE v. SANCHEZ
                       Opinion of the Court

criminal homicide to manslaughter. At trial, the court      excluded
statements Mr. Sanchez made to a detective that he          contends
would have supported his claim for a reduced charge         based on
special mitigation for extreme emotional distress.          He was
convicted of first-degree murder by a jury.
   ¶2 On appeal, the court of appeals determined that the trial
court abused its discretion by not admitting the statements under
Utah Rule of Evidence 106. 1 Nevertheless, the court of appeals
found that the error was harmless because, even if the statements
were admitted, Mr. Sanchez would not have met his burden of
proving extreme emotional distress mitigation. See State v.
Sanchez, 2016 UT App 189, ¶¶ 43–46, 380 P.3d 375. Mr. Sanchez
petitioned for a writ of certiorari of the harmless error
determination, and the state filed a cross petition on the rule 106
determination. We granted certiorari review on both
Mr. Sanchez’s petition and the state’s cross petition.
    ¶3 Typically, when an appellate court reviews an alleged
error in the trial court’s determinations on the rules of evidence,
we first look to see if there was error under the appropriate
standard of review. Next, if error is found, we determine if the
“error is so prejudicial and so substantial that, absent the error, it
is reasonably probable that the result would have been more
favorable for the defendant.” State v. Thomas, 1999 UT 2, ¶ 26, 974
P.2d 269. Nevertheless, in this case, we decline the invitation of
the state to decide whether the testimony should have been
admitted under rule 106 because, like the court of appeals, we
find that if in fact the court erred in not admitting the evidence,
the error would be harmless. Additionally, we note that the court
of appeals used the incorrect standard for measuring extreme
emotional distress. Therefore, we vacate the portions of the court
of appeals’ decision that deal with rule 106 and the standard for
extreme emotional distress, we clarify the correct standard for
extreme emotional distress, and we affirm the court of appeals’
harmlessness determination on alternative grounds.


   1  Utah Rule of Evidence 106 provides that “[i]f a party
introduces all or part of a writing or recorded statement, an
adverse party may require the introduction, at that time, of any
other part—or any other writing or recorded statement—that in
fairness ought to be considered at the same time.”


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                         BACKGROUND
   ¶4 The victim in this case was killed by her boyfriend in her
apartment on May 5, 2011, after a prolonged period of
brutalization. The events that led to her death began the previous
night when Mr. Sanchez claims she told him that she was cheating
on him with his brother. 2 Mr. Sanchez’s initial reaction was to pull
her hair. However, over the course of the next seven to ten hours,
Mr. Sanchez engaged in a brutal attack on the victim. Mr. Sanchez
admitted to detectives that over the course of the night he
repeatedly pulled the victim’s hair, slapped her, kicked her,
choked her, used the heel of his foot to stomp on her, bit her, and
grabbed her stomach and clenched hard enough to leave bruises.
Mr. Sanchez also grabbed the victim’s lips and pulled them so
hard that they tore away from her mouth and backhanded her
hard enough to cause her nose to bleed uncontrollably.
    ¶5 At several points throughout the night, Mr. Sanchez
choked the victim to the point of losing consciousness. When she
lost consciousness, Mr. Sanchez would sometimes attempt to


   2  While defense counsel emphasized the victim’s “sexual
relations” with Mr. Sanchez’s brother in his opening statement, he
was unable to put any evidence on this point before the jury. And
on an appeal from a jury verdict, we would ordinarily not
consider this material as we “review the record facts in a light
most favorable to the . . . verdict and recite the facts accordingly.”
State v. Goins, 2017 UT 61, n.1, ---P.3d--- (citation omitted). But
where “necessary to understand issues raised on appeal,” as here,
we also “present conflicting evidence.” Id. (citation omitted).
Indeed, as a matter of logic, harmlessness inquiries, like the one
we confront in this matter, will often present the type of setting in
which the review and presentation of conflicting evidence is
necessary. See United States v. Gonzalez-Gonzalez, 136 F.3d 6, 7–8
(1st Cir. 1998) (“Because this appeal involves admittedly improper
remarks by the prosecutor, and because the verdict could have
been tainted by these remarks, we do not consider the facts in the
light most favorable to the jury’s verdict. Our description of the
facts is designed to provide a balanced picture of the evidence
appropriate for determining whether the remarks were harmless
or prejudicial.” (citation omitted) (internal quotation marks
omitted)).


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revive her through resuscitation. At another point that night,
Mr. Sanchez took the victim to the bathroom and ran water over
her head in an attempt to “fully arouse her or awaken her” and to
clean her up because “she was bleeding profusely from her face.”
He also tried to clean the victim up using hydrogen peroxide.
    ¶6 The victim’s downstairs neighbors could hear portions of
the attack. One downstairs neighbor testified that she could hear
crying from at least one to six a.m., with quiet periods lasting no
longer than five minutes. In the middle of the night, that neighbor
said that she could “hear[] a lot of crying, more so like despair,
and then . . . excessive like crying, and . . . muffled yelling or
grunting.” The neighbor became so concerned by the noises that
she asked her mother to call the police. The mother went upstairs
several times and knocked on the victim’s door and tried to call
the victim’s phone. When the victim did not answer the door or
the phone, the mother finally called 9-1-1. Police arrived around
6:40 a.m. They knocked on the door several times, but nobody
answered. Dispatch also tried calling phone numbers associated
with the apartment, but they went unanswered. Police listened at
the door for several minutes to see if they could hear noises
coming from inside, but they could not hear anything. The call
was cleared around seven a.m. Between 6:30 and 7:15 a.m., the
downstairs neighbor did not hear any noises. And by the time she
left for work at 8:15 a.m., the apartment above was silent.
   ¶7 Around eight or nine in the morning, Mr. Sanchez choked
the victim for the final time. Mr. Sanchez, realizing that his first
method of choking—a headlock—was not working, tried a second
method—placing his elbow on her throat while on top of her. And
then, when that method also proved ineffective, Mr. Sanchez
turned to a third method—placing his forearm on her throat and
leaning into her. This third method caused the victim to lose
consciousness, which she never regained.
   ¶8 After the victim lost consciousness, Mr. Sanchez lay
down next to her and took a nap. When he woke up one to two
hours later, the victim was still unresponsive, so he called a friend
to come and get him. When his friend arrived around twenty
minutes later, Mr. Sanchez called 9-1-1 for an ambulance and then
got in his friend’s car and left. Police were able to track
Mr. Sanchez to his friend’s house a few hours later, and
Mr. Sanchez eventually surrendered after taking several



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methadone pills. Mr. Sanchez was taken to the hospital and later
interviewed by Detective Chad Reyes.
   ¶9 At trial, Detective Reyes provided lengthy testimony
about his interview with Mr. Sanchez. The trial court denied
Mr. Sanchez’s attempt to get additional statements he made to
Detective Reyes admitted under rule 106 of the Utah Rules of
Evidence. Mr. Sanchez appealed this decision to the court of
appeals. The court of appeals held that the trial court should have
admitted the evidence under rule 106, but that the error was
harmless. State v. Sanchez, 2016 UT App 189, ¶ 46, 380 P.3d 375.
Mr. Sanchez appealed the harmless error determination. The state
cross-appealed the rule 106 decision. We have jurisdiction
pursuant to Utah Code section 78A-3-102(3)(a).
                    STANDARD OF REVIEW
    ¶10 “On certiorari, we review the decision of the court of
appeals for correctness, giving no deference to its conclusions of
law.” State v. White, 2011 UT 21, ¶ 14, 251 P.3d 820. “The
correctness of the court of appeals’ decision turns on whether that
court correctly reviewed the trial court’s decision under the
appropriate standard of review.” State v. Dean, 2004 UT 63, ¶ 7, 95
P.3d 276 (citation omitted). In reviewing the admissibility of
evidence, “[w]e review the legal questions to make the
determination of admissibility for correctness[;] . . . [w]e review
the questions of fact for clear error[;] . . . [and w]e review the
district court’s ruling on admissibility for abuse of discretion.”
State v. Workman, 2005 UT 66, ¶ 10, 122 P.3d 639 (citations
omitted).
                           ANALYSIS
    ¶11 This case presents us with three potential issues for
review. The court of appeals concluded that the trial court erred in
not admitting Mr. Sanchez’s proffered statements under rule 106
of the Utah Rules of Evidence but determined that the error was
harmless. Mr. Sanchez sought certiorari review of this decision,
arguing that the court of appeals erred (1) by using the incorrect
harmlessness standard and (2) in its construction and application
of the extreme emotional distress special mitigation statute. The
state cross petitioned, arguing that the court of appeals was
incorrect in holding that rule 106 required admission of
statements that would otherwise constitute self-serving,
inadmissible hearsay.


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                        STATE v. SANCHEZ
                       Opinion of the Court

    ¶12 Although we granted the state’s cross petition as a
separate issue for our review, it functions as an alternative ground
for us to affirm the court of appeals. Since we determine that if
error existed, it was harmless, we first provide some discussion as
to whether rule 106 would apply to the proffered statements, but
we decline to reach the issue, proceeding to the prejudice prong.
We do so because, even under the assumption that the trial court
erred, the court of appeals used the correct prejudice standard in
finding any potential error harmless and reached the correct
result. Finally, we discuss and apply the correct standard for the
extreme emotional defense mitigation and conclude that any error
was harmless.
    I. ADMISSIBILITY OF DEFENDANT’S STATEMENTS TO
            DETECTIVE REYES UNDER RULE 106
    ¶13 The first issue we consider is whether the court of appeals
was correct in concluding that Mr. Sanchez’s statements to
Detective Reyes should have been admitted under Utah Rule of
Evidence 106. We begin by discussing the relevant trial court
testimony and the lower court rulings. After that, we discuss the
threshold questions necessary to determine whether rule 106
applies. The parties did not brief these threshold questions. And
we decline to render an opinion where the parties have not
“provide[d] reasoned argument and [valid] legal authority.” A.S.
v. R.S., 2017 UT 77, ¶ 16, 416 P.3d 465 (second alteration in
original) (citation omitted). Further, because we determine that
any error in not admitting the evidence under rule 106 would be
harmless, we do not need to determine if there was error.
            A. Trial Testimony and Lower Court Rulings
    ¶14 At trial, Detective Reyes provided lengthy testimony
regarding his interview with Mr. Sanchez. Relevant to the rule 106
argument, Detective Reyes testified that Mr. Sanchez told him that
the fight started the night before when “he got mad at her and he
pulled her hair.” Additionally, Detective Reyes asked Mr. Sanchez
“specifically about the choking,” and “if [the victim] was saying
anything or reacting at all to him when he was choking her[,] and
[Mr. Sanchez] said that she wasn’t saying much[;] she was just
screaming.”
    ¶15 On cross-examination, Mr. Sanchez wanted to elicit
testimony from Detective Reyes about statements Mr. Sanchez
made during the interview where he claimed that the victim
repeatedly told him that she was having an affair with his brother
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                       Opinion of the Court

and refused to say she would stop. Mr. Sanchez acknowledged
that his statements to the detective were hearsay, not admissible
under rule 801(d)(2) of the Utah Rules of Evidence, 3 but argued
several theories for admissibility, including Utah Rule of Evidence
106. The trial court ruled that the proffered statements were not
admissible under any of the theories Mr. Sanchez presented.
    ¶16 Before us, Mr. Sanchez has only presented the argument
that his statements should have been admitted under rule 106 of
the Utah Rules of Evidence. Rule 106 provides as follows: “If a
party introduces all or part of a writing or recorded statement, an
adverse party may require the introduction, at that time, of any
other part—or any other writing or recorded statement—that in
fairness ought to be considered at the same time.” UTAH R. EVID.
106.
   ¶17 The trial court rejected Mr. Sanchez’s rule 106 argument,
concluding that fairness did not require admitting the statements
because they were a self-serving, after-the-fact explanation,
temporally unrelated to the inculpatory portions of the interview
previously admitted.
    ¶18 A majority of the court of appeals concluded that rule 106
covers both timing and admissibility and that the trial court
abused its discretion by not admitting the proffered portions of
the testimony. State v. Sanchez, 2016 UT App 189, ¶¶ 18, 30–31, 380
P.3d 375. Nevertheless, the court of appeals affirmed, holding that
the error was harmless. Id. ¶ 46. Mr. Sanchez filed a writ of
certiorari on this determination, and the state cross petitioned,
arguing that the court of appeals erred by (1) deciding rule 106
applied without first determining whether the introduced
statements were misleading and (2) concluding that rule 106 can
overcome other rules of evidence that prevent admissibility.

   3 As the court of appeals correctly noted, the trial court erred
when it concluded that these statements were double hearsay. See
State v. Sanchez, 2016 UT App 189, ¶¶ 20–21, 380 P.3d 375. While
Mr. Sanchez’s statements were hearsay, offered to prove the truth
of the matter asserted—that the victim had in fact told him she
was having an affair—the victim’s statements were not hearsay
because they would have been offered to show the statement’s
effect on the listener. See Arnold v. Grigsby, 2018 UT 14, ¶ 20, 417
P.3d 606 (citation omitted).


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                        Opinion of the Court

                     B. Applicability of Rule 106
    ¶19 Other jurisdictions are split on the question of whether
rule 106 is solely a rule of timing or if it also overcomes other rules
of evidence that preclude admissibility. See State v. Jones, 2015 UT
19, ¶ 41 n.56, 345 P.3d 1195 (comparing holdings in other
jurisdictions (citations omitted)). We have yet to weigh in on this
divisive issue. Id. ¶ 41.
    ¶20 However, before we reach the timing versus admissibility
issue raised by the court of appeals, there is a threshold question
that must be answered: Does the evidence to be admitted qualify
as a writing or recorded statement under rule 106? Id. Neither
party adequately addressed this threshold question either in their
briefing or at oral argument. And, based on the record before us,
we are unconvinced that we can properly answer the question in
this matter.
    ¶21 We previously left open the question of whether “rule 106
applies to transcribed oral statements that are used extensively at
trial but are not actually introduced into evidence.” Id. Some
courts have said that reading a writing or recorded statement into
the record or directly quoting it on cross-examination is enough,
while other courts require actual introduction of the evidence
before rule 106 applies. Id. ¶ 41 n.55 (noting that “[c]ourts have
not reached a uniform decision on whether rule 106 applies to
statements that are not introduced into evidence” and comparing
rules across jurisdictions (citations omitted)). It is not clear here
that the prosecutor’s use would even meet the lower bar. And we
have certainly left open the question of whether rule 106 applies if
transcribed oral statements are not used extensively at trial.
   ¶22 Neither party introduced the actual transcript of the
detective’s interview at trial, and the transcript does not appear in
the record. From the record, it appears that Mr. Sanchez’s counsel
repeatedly quoted from the transcript during cross-examination of
Detective Reyes. However, Mr. Sanchez cannot rely upon his own
use of the transcript to trigger additional admissibility under rule
106. See UTAH R. EVID. 106 (allowing “an adverse party [to] require
the introduction” of a writing or recorded statement when “a
party introduces all or part of a writing or recorded statement”
(emphasis added)). Instead, Mr. Sanchez may only rely upon rule
106 if the prosecution has introduced all or part of a writing or
recorded statement.


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                       Opinion of the Court

    ¶23 While Detective Reyes testified extensively about his
conversation with Mr. Sanchez at trial, mere testimony about a
conversation that happened to also be recorded is insufficient to
trigger rule 106. From the record, it is clear that Detective Reyes
used the transcript on multiple occasions to refresh his
recollection under rule 612 of the Utah Rules of Evidence. The
prosecution’s use of the transcript to refresh Detective Reyes’s
recollection at trial provided Mr. Sanchez with specific options of
which he may take advantage. See UTAH R. EVID. 612(b) (providing
the adverse party with options when a writing is used to refresh
memory). But it is unclear from the record if the prosecution ever
directly quoted from the transcript when questioning Detective
Reyes or if Detective Reyes quoted directly from the transcript
when responding to questions from the prosecution.
   ¶24 We need not reach the issues of whether rule 106 would
apply to the prosecution’s use of the transcript or require the
admission of statements that would otherwise be inadmissible
hearsay. Moreover, we decline to answer such an important
question in a case where we have serious doubts about the
threshold applicability of rule 106, especially given the
importance of the question of whether rule 106 can defeat other
rules of evidence that work against admissibility, such as the rules
on hearsay. 4 It is unnecessary to decide these issues in this case
because we conclude that any potential error was harmless.
    ¶25 Because of the importance of the issue and our decision
not to reach the question in this case despite the State challenging
the court of appeals’ decision, we vacate the portion of the court
of appeals decision on rule 106. Cf. State ex rel. B.R. v. S.M., 2007
UT 82, ¶ 7, 171 P.3d 435 (vacating a court of appeals opinion to
“remedy the parties’ . . . concerns” raised to, but not addressed by,
the supreme court).
       II. MR. SANCHEZ WAS NOT PREJUDICED BY THE
        EXCLUSION OF THE PROFFERED STATEMENTS
   ¶26 Next we consider whether the court of appeals was
correct in holding that any error was harmless. This requires us to


   4 Rather than waiting for the appropriate case to weigh in on
these issues, we believe it is prudent to refer them to our Advisory
Committee on the Rules of Evidence.


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                         STATE v. SANCHEZ
                       Opinion of the Court

engage in two separate inquiries. First, we must determine if the
court of appeals applied the correct prejudice standard. Second,
we must determine if the error was harmless under the correct
standard.
    ¶27 We agree with the court of appeals that the regular
harmless error standard applies in this case. Additionally,
although the court of appeals incorrectly interpreted the
applicable special mitigation standard when concluding the error
was harmless, we reach the same conclusion as the court of
appeals under the clarified standard we announced in State v.
Lambdin, 2017 UT 46, ___P.3d___.
    A. The Court of Appeals Applied the Correct Prejudice Standard
   ¶28 Mr. Sanchez argues that the trial court’s error under rule
106 was a constitutional error because it deprived him of his
constitutional right to present a complete defense. Therefore,
Mr. Sanchez contends that the court of appeals erred by
employing a harmless error prejudice standard instead of a
constitutional error prejudice standard.
    ¶29 The court of appeals determined that Mr. Sanchez was
not entitled to the constitutional error standard for two
independent reasons. State v. Sanchez, 2016 UT App 189, ¶¶ 35–36,
380 P.3d 375. First, the court of appeals found that Mr. Sanchez
failed to preserve his constitutional argument. Id. ¶ 35. Second,
the court of appeals noted that “[Mr.] Sanchez has not
demonstrated that the denial of the benefit of special mitigation
constitutes a denial of his federal due process right to present a
complete defense.” Id. ¶ 36.
    ¶30 The court of appeals was correct in holding that
Mr. Sanchez failed to preserve his constitutional argument, and
therefore we do not need to consider the court of appeals’ second
grounds for denying a constitutional error standard. “[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.” Brookside Mobile Home Park, Ltd. v. Peebles, 2002
UT 48, ¶ 14, 48 P.3d 968 (citation omitted). To meet the
preservation requirement, “the issue must be ‘sufficiently raised
to a “level of consciousness” before the trial court and must be
supported by evidence or relevant legal authority.’” State v. Dean,
2004 UT 63, ¶ 13, 95 P.3d 276 (citation omitted). Mr. Sanchez failed
to meet this requirement.


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                       Opinion of the Court

    ¶31 Mr. Sanchez points to two places in the record to
demonstrate preservation. However, neither of these instances
would be sufficient to raise a general argument regarding the
constitutional right to present a complete defense, let alone raise
such a constitutional argument that is specifically tied to the rule
106 holding. In the first instance, after the court rejected defense
counsel’s argument regarding rule 106 and hearsay and said, “[i]f
he wants to take the stand and say it, then that’s fine,” defense
counsel responded by saying, “[w]ell, tell you what, we can spend
the rest of the afternoon with me cross[-]examining [the detective]
on the record and send it up on appeal then, because that’s the
defense. That’s our defense.” In the second instance, defense
counsel had set out four separate theories of admissibility
(including rule 106) and then said, “Let me just throw in there—
haven’t really thought about this very much, sorry to say, but I
think it goes to our right to present a defense, and this is our
defense.” Immediately afterward, the prosecutor asked the court
and defense counsel to make sure that they all have the same list
of arguments so that the prosecutor could respond. Neither the
court nor the prosecutor mentioned the right to present a defense
when recounting their lists, and defense counsel did not attempt
to add it to the list.
    ¶32 Importantly, as the court of appeals correctly noted,
“[Mr.] Sanchez attempts to elevate a single rule 106 violation,
which affected the application of the special mitigation statute, to
federal constitutional status.” Sanchez, 2016 UT App 189, ¶ 34. But
Mr. Sanchez has failed to show how his attempts at preservation
would “have alerted the trial court that denying his rule 106
motion would deprive him of his ‘due process right to present a
complete defense.’” Id. ¶ 35. Neither of these passing mentions of
a defense is sufficient to “raise[]” the issue “to a ‘level of
consciousness’ before the trial court.” Dean, 2004 UT 63, ¶ 13
(citation omitted). Nor did defense counsel support his arguments
with any “evidence or relevant legal authority.” Id. Therefore,
Mr. Sanchez failed to preserve an argument that the trial court’s
106 ruling constituted a constitutional error.
   ¶33 “[U]npreserved federal constitutional claims are not
subject to a heightened review standard but are to be reviewed
under our plain error doctrine.” State v. Bond, 2015 UT 88, ¶ 44,
361 P.3d 104. Normally, we would review Mr. Sanchez’s
arguments for plain error. However, although Mr. Sanchez did
not preserve his claim that the rule 106 decision would be

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                         STATE v. SANCHEZ
                       Opinion of the Court

constitutional error, he still preserved his rule 106 argument.
Therefore, we will review the rule 106 decision under a regular
harmless error standard.
B. Any Error in Excluding the Proffered Evidence Under Rule 106 Was
                              Harmless
    ¶34 Even under the assumption that Mr. Sanchez’s statements
to Detective Reyes should have been admitted under rule 106, we
find any such error harmless. “In circumstances where evidence
should have been admitted, it is reviewed for harmless error. If it
is reasonably likely a different outcome would result with the
introduction of the evidence and confidence in the verdict is
undermined, then exclusion is harmful.” State v. Colwell, 2000 UT
8, ¶ 26, 994 P.2d 177.
   ¶35 Prior to trial, Mr. Sanchez requested a jury instruction on
the extreme emotional distress special mitigation statute. Because
no evidence of extreme emotional distress was admitted at trial,
Mr. Sanchez conceded that no jury instruction was warranted.
However, assuming the proffered statements not admitted under
rule 106 would have constituted sufficient evidence to warrant a
jury instruction on extreme emotional distress, the issue would
have gone to the jury to decide. Therefore, in determining the
harmlessness of any error in not admitting the evidence under
rule 106, we must decide whether it is reasonably likely that the
jury would have found that Mr. Sanchez proved extreme
emotional distress sufficient to meet the special mitigation statute.
    ¶36 Special mitigation requires showing that (1) the
defendant was subjectively under extreme emotional distress and
(2) there is an objectively reasonable explanation or excuse for the
extreme emotional distress. See infra ¶ 38. The court of appeals
determined that there was “no reasonable probability” that a jury
would find extreme emotional distress. Sanchez, 2016 UT App 189,
¶ 45. However, the court of appeals reached its decision by
misinterpreting the objective standard in State v. White, 2011 UT
21, 251 P.3d 820, which we subsequently clarified in Lambdin, 2017
UT 46. Although the court of appeals used the incorrect objective
standard, we reach the same result under the subjective
requirement of special mitigation. Based on the limited nature of
the proffered evidence, combined with the evidence before the
jury, we conclude that it is not reasonably likely that a jury would
find that Mr. Sanchez had proved he was subjectively under the
influence of extreme emotional distress when he committed the

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                         Opinion of the Court

murder. Because the court of appeals used the incorrect objective
extreme emotional distress standard, we vacate that portion of the
court of appeals’ opinion.
1. Extreme Emotional Distress Standard
    ¶37 When the legislature originally enacted the extreme
emotional distress statute, it “intended to ‘substantially enlarge[]
the class of cases’ available in extreme emotional distress from the
more narrow common law heat of passion defense.” Lambdin,
2017 UT 46, ¶ 28 n.4 (alteration in original) (citation omitted).
Since that time, the legislature has “changed [extreme emotional
distress] from a defense to an affirmative defense and then
changed it again to special mitigation and narrowed its scope . . . .
ma[king] it more difficult to prove . . . but [leaving] the core
provisions largely intact.” Id.
    ¶38 The present special mitigation statute provides two main
requirements: (1) subjectively, the defendant must be acting
“under the influence of extreme emotional distress” at the time he
causes or attempts to cause the death of another and
(2) objectively, “there is a reasonable explanation or excuse” for
the extreme emotional distress. 5 UTAH CODE § 76-5-205.5; see also

   5   The relevant portion of the statute provides:
         (1) Special mitigation exists when the actor causes
         the death of another or attempts to cause the death
         of another:
         ...
                (b) under the influence of extreme emotional
                distress for which there is a reasonable
                explanation or excuse.
         ...
         (3) Under Subsection (1)(b), emotional distress does
         not include:
                (a) a condition resulting from mental illness
                as defined in Section 76-2-305; or
                (b) distress that is substantially caused by the
                defendant’s own conduct.
         (4) The reasonableness of an explanation or excuse
         under Subsection (1)(b) shall be determined from the
         viewpoint of a reasonable person under the then
         existing circumstances.


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                        Opinion of the Court

Lambdin, 2017 UT 46, ¶ 32 (“Requiring a reasonable explanation or
excuse for the extreme emotional distress creates an objective
inquiry, rather than a subjective one.”); State v. Bishop, 753 P.2d
439, 471 (Utah 1988) (“Utah’s statute . . . has two principal
elements: (1) the killing must be committed while under the
influence of an extreme mental or emotional disturbance, and
(2) there must be a reasonable explanation or excuse for the
disturbance.”), overruled on other grounds by State v. Menzies, 889
P.2d 393 (Utah 1994); cf. Ross v. State, 2012 UT 93, ¶ 28, 293 P.3d
345 (articulating a substantively identical test for a predecessor
extreme emotional distress affirmative defense statute). The
defendant is required to prove extreme emotional distress by a
preponderance of the evidence. UTAH CODE § 76-5-205.5(5)(a).
   ¶39 We have previously stated that a person is suffering from
extreme emotional distress:
       (1) when he has no mental illness as defined in
       section 76-2-305 (insanity or diminished capacity);
       and
       (2) when he is exposed to extremely unusual and
       overwhelming stress; and
       (3) when the average reasonable person under that
       stress would have an extreme emotional reaction to
       it, as a result of which he would experience a loss of
       self-control and that person’s reason would be
       overborne by intense feelings, such as passion,
       anger, distress, grief, excessive agitation, or other
       similar emotions.
State v. Bishop, 753 P.2d at 471.
   ¶40 Most of our case law, including our most recent decision
in Lambdin, has focused on the objective portion of the test. We
have repeatedly stated that a defendant’s loss of self-control must
be objectively reasonable. See, e.g., Lambdin, 2017 UT 46, ¶ 32. But



     (5)(a) If the trier of fact finds . . . that the existence of
     special mitigation under this section is established
     by a preponderance of the evidence, it shall [apply
     the special mitigation required by the statute].
   UTAH CODE § 76-5-205.5.


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                       Opinion of the Court

this requirement obviously contemplates that a defendant must
have actually (i.e., subjectively) lost self-control.
    ¶41 Although we have never explicitly discussed the
subjective requirement on its own, we have said that a
defendant’s loss of self-control must be contemporaneous with an
extreme emotional reaction. Id. ¶ 30 (“[I]f the loss of self-control
does not occur while the defendant is experiencing the extreme
emotional reaction, then the loss of self-control is not caused by
the extreme emotional reaction and special mitigation is not
appropriate.”). But an extreme emotional reaction and
contemporaneous loss of self-control are not enough to show
subjective extreme emotional distress on their own. Instead, it is
necessary for a defendant to show that his or her extreme
emotional reaction caused a loss of self-control and that his or her
“reason [was] overborne by intense feelings, such as passion,
anger, distress, grief, excessive agitation, or other similar
emotions.” Bishop, 753 P.2d at 471. If a defendant has lost
self-control but still can reason—hence, is not overborne by intense
feelings—then the defendant is not acting under extreme
emotional distress.
    ¶42 In Lambdin, we concluded that the “definition” of extreme
emotional distress in Bishop was the “best formulation of what
constitutes extreme emotional distress” for the current special
mitigation statute. 2017 UT 46, ¶ 23. And this is true. However,
the definition of extreme emotional distress in Bishop was adopted
under a different statute that had slightly different requirements.
For example, under the current special mitigation statute,
“emotional distress does not include . . . distress that is
substantially caused by the defendant’s own conduct.” UTAH
CODE § 76-5-205.5(3). This requirement is not reflected in the
Bishop definition. Nor is the subjective component compelled by
statute and our case law. Therefore, we take this opportunity to
clarify the requirements a defendant must meet to be entitled to
special mitigation for extreme emotional distress.
   ¶43 As set forth above, for a defendant to be entitled to
special mitigation under the statute: “(1) subjectively, the
defendant must be acting ‘under the influence of extreme
emotional distress’ at the time he causes or attempts to cause the
death of another and (2) objectively, ‘there is a reasonable
explanation or excuse’ for the extreme emotional distress.” Supra
¶ 38 (citations omitted). A defendant can prove that he was

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                       Opinion of the Court

subjectively under the influence of extreme emotional distress by
showing:
    (1) he was “exposed to extremely unusual and overwhelming
stress,” Lambdin, 2017 UT 46, ¶ 15 (emphasis omitted) (citation
omitted);
    (2) he had “an extreme emotional reaction to it, as a result of
which he . . . experience[d] a loss of self-control and [his] reason
[was] overborne by intense feelings, such as passion, anger,
distress, grief, excessive agitation, or other similar emotions,” id.
(citation omitted); 6
    (3) his emotional distress was not “a condition resulting from
mental illness as defined in Section 76-2-305,” UTAH CODE
§ 76-5-205.5(3)(a); and
    (4) his emotional distress was not “substantially caused by
[his] own conduct,” id. § 76-5-205.5(3)(b).
    ¶44 A defendant can prove there was an objectively
reasonable explanation or excuse for his extreme emotional
distress by showing that, “under the then existing circumstances,”
id. § 76-5-205.5(4), “the average reasonable person under [the
“extremely unusual and overwhelming”] stress [to which the


   6  Previously, we have only discussed this prong in the objective
setting, recognizing extreme emotional distress exists “when the
average reasonable person under that stress would have an extreme
emotional reaction to it.” Lambdin, 2017 UT 46, ¶ 15 (emphasis
added) (citation omitted). This requirement remains an important
part of the overall proof a defendant must meet to take advantage
of extreme emotional distress special mitigation. See infra ¶ 45.
And nothing in this opinion should be interpreted to the contrary.
But it is also necessary that a defendant establish that he did, in
fact, suffer “an extreme emotional reaction” and that, as a result,
he experienced “a loss of self-control” and his reason was
“overborne by intense feelings.” Lambdin, 2017 UT 46, ¶ 15
(citation omitted). To hold otherwise would allow a sociopath
who kills and whose reason was not overborne by intense feelings
to still assert extreme emotional distress because the average
reasonable person, confronted with the same circumstances as our
sociopath, would have had his reason overborne. The law is not
so loathsome.


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                       Opinion of the Court

defendant was exposed] would have an extreme emotional
reaction to it, as a result of which he would experience a loss of
self-control and that person’s reason would be overborne by
intense feelings, such as passion, anger, distress, grief, excessive
agitation, or other similar emotions,” Lambdin, 2017 UT 46, ¶ 15
(citation omitted).
    ¶45 The reasonableness of the explanation or excuse for the
defendant’s extreme emotional distress “must be read in the
context of the statute,” which mitigates aggravated murder or
murder, but “does not mitigate assault or any other criminal
activity.” Id. ¶ 38. Almost “all intentional homicides . . . are
abnormal acts for the perpetrators and the result of strong
emotions and stresses.” White, 2011 UT 21, ¶ 22 (citation omitted).
The statute does not “extend[] to reduce murder to manslaughter
simply because the average reasonable person might experience
stress and anger in the circumstances, and consequently a
heightened impairment to his decision making process and
self-control.” Lambdin, 2017 UT 46, ¶ 39. Instead, special
mitigation only applies if “a reasonable person’s self-control and
ability to make a rational choice [would] be overwhelmingly and
substantially undermined.” Id. This distinction is necessary “so
that this defense will only be applicable to those homicides which
appropriately qualify under the underlying purpose of [the
statute] and not en masse to all acts constituting murder.” White,
2011 UT 21, ¶ 22 (citation omitted).
    ¶46 In White, we said that “[t]he standard is not whether the
defendant thought her reaction was reasonable, but whether a
reasonable person facing the same situation would have reacted
in a similar way.” Id. ¶ 37. Relying on this “similar way”
language, the court of appeals determined that no reasonable
person would have reacted in a similar way to Mr. Sanchez
because of two distinguishing factors: “the extended period of
torture leading up to the final suffocating blow and the
calculation with which [Mr.} Sanchez admits he administered that
blow.” Sanchez, 2016 UT App 189, ¶ 45.
    ¶47 But in Lambdin, issued after the court of appeals’ decision
in this case, we clarified that “[t]he statute requires a reasonable
explanation or excuse only for the extreme emotional distress, not
for any subsequent action taken by the defendant.” 2017 UT 46,
¶ 34 (citing UTAH CODE § 76-5-205.5). We recognized that “[o]nce
the average reasonable person loses self-control, there could be a

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                          STATE v. SANCHEZ
                        Opinion of the Court

wide range of actions that the now unreasonable person might
take.” Id. ¶ 35. The objective inquiry does not include
“evaluat[ing] the reasonableness of the action ultimately taken.”
Id. Therefore, the “killing itself [need not] be reasonable.” Id. ¶ 34.
    ¶48 The court of appeals was incorrect in examining whether
a reasonable person would have murdered a romantic partner in a
similar manner after finding out that he or she was cheating with
the person’s sibling. Instead, the appropriate objective inquiry is
whether a reasonable person, under the then existing
circumstances, would have lost self-control and had his or her
ability to reason overborne by intense emotions upon finding out
that a romantic partner of six months was cheating with the
person’s sibling.
    ¶49 We need not decide whether there is a reasonable
likelihood that a jury would find extreme emotional distress to be
objectively reasonable in this case because we conclude that there is
no reasonable likelihood that a jury would find that Mr. Sanchez
was subjectively acting under extreme emotional distress when he
murdered the victim. Therefore, we vacate the court of appeals’
decision on the extreme emotional distress standard but uphold
their conclusion on other grounds.
2. There Is No Reasonable Likelihood That a Jury Would Have
Concluded That Mr. Sanchez Was Subjectively Under Extreme
Emotional Distress at the Time He Caused the Victim’s Death
    ¶50 Based on the evidence that would have been admitted
under rule 106, there is no reasonable likelihood that a jury would
believe that Mr. Sanchez was subjectively under extreme
emotional distress at the time of the victim’s murder. Defense
counsel was given an opportunity to proffer the evidence he
would have introduced under rule 106. This proffer only
contained two pieces of testimony relevant to extreme emotional
distress. First, the detective testified that Mr. Sanchez said he was
“enraged” when he found out that the victim was cheating on him
with his brother, and “that’s when he began the assault.” Second,
at some unidentified part of the assault, Mr. Sanchez asked the
victim to say she would not cheat again, “but she wouldn’t” say
that, and “that hurt [his] feelings.”
    ¶51 If they had been admitted, these two statements would
have been the only evidence introduced at trial that would be
relevant to the defendant’s ability to meet the special mitigation
standard. However, when these two statements are considered
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                       Opinion of the Court

against the backdrop of the other evidence introduced at trial, we
are satisfied that there is no reasonable likelihood that a jury
would find by a preponderance of the evidence that the defendant
proved he was subjectively acting under extreme emotional
distress when he killed the victim.
    ¶52 The two proffered statements only show that
(1) Mr. Sanchez was enraged at the beginning of the torture and
(2) at some unknown point during the torture he asked the victim
to say she would stop cheating, and, when she would not, he had
hurt feelings. But having “hurt feelings” simply does not
demonstrate that Mr. Sanchez’s “reason [was] overborne by
intense feelings, such as passion, anger, distress, grief, excess
agitation, or other similar emotions.” Bishop, 753 P.2d at 471. And
there is no evidence that would allow a jury to consider when
Mr. Sanchez was suffering those “hurt feelings” during his attack
on the victim. Without that information, the jury would have no
evidence to connect those “hurt feelings” with the time that
Mr. Sanchez caused the victim’s death. And the statute requires
that the actor be “under the influence of extreme emotional
distress,” not just “hurt feelings,” “when the actor causes the
death of another.” UTAH CODE § 76-5-205.5(1) (emphasis added);
see also supra ¶ 41 (requiring the extreme emotional reaction and
loss of self-control to be contemporaneous).
    ¶53 Similarly, there is no evidence that Mr. Sanchez
continued to feel “enraged” beyond the beginning of the attack. In
fact, the two statements, taken together, make it clear that
although Mr. Sanchez was “enraged” when he initiated his attack
on the victim, at some point during that attack, his emotional level
was downgraded to “hurt feelings.” And there is no evidence that
Mr. Sanchez again became enraged, or was under any other
“intense feeling[]” that would qualify for extreme emotional
distress. This solitary statement only possibly demonstrates that
Mr. Sanchez was enraged at least seven hours before the victim’s
death. This does not show that any extreme emotional reaction
Mr. Sanchez may have had was contemporaneous with his loss of
self-control that led to the death of the victim. Nor does it show




                                19
                        STATE v. SANCHEZ
                       Opinion of the Court

that he was subjectively under the influence of extreme emotional
distress when he caused the victim’s death. 7
    ¶54 When evaluating these statements, even considered in
isolation, we see no reasonable likelihood that a jury would find
by a preponderance of the evidence that Mr. Sanchez was
subjectively under the influence of extreme emotional distress
when he murdered the victim. Considering the other evidence
presented at trial, it becomes even less likely that the jury would
reach such a conclusion.
    ¶55 There was significant evidence introduced at trial that
Mr. Sanchez was not experiencing “a loss of self-control and that
[his] reason [was not] overborne by intense feelings” at the time
he caused the victim’s death. Bishop, 753 P.2d at 471. Several times
during the torture, Mr. Sanchez attempted to undo or minimize
the damage he had done. On multiple occasions, when the victim
lost consciousness, Mr. Sanchez attempted to resuscitate her by
breathing on her behalf. He also brought the victim to the
bathroom and ran her head under water to try to wake her up and
clean blood off her face. Additionally, Mr. Sanchez used hydrogen
peroxide to try and clean the victim up.
    ¶56 Although Mr. Sanchez engaged in a brutal attack on the
victim, there were multiple quiet periods of up to five minutes
from one to six a.m. Over two hours before Mr. Sanchez finally
strangled the victim, the downstairs neighbor stopped hearing
frequent noises. And around an hour before the victim’s death,
the police showed up to the apartment, specifically listened at the
door to see if they could hear noises coming from inside, and were
unable to hear a sound. Unlike the previous hours, there were no



   7 We recognize that the medical examiner certified the victim’s
death “as resulting from multiple blunt force injuries and
strangulation.” And the blunt force injuries were so extensive that
the medical examiner could not identify either as the sole cause of
death, instead determining that it was “[t]he combined effects of
both modalities” that led to her death. But this does not save
Mr. Sanchez. He caused the victim’s blunt force injuries over at
least seven hours. And he has not attempted to tie being
“enraged” or his “hurt feelings” to the injuries that caused the
victim’s death.


                                20
                        Cite as: 2018 UT 31
                       Opinion of the Court

indications of tumultuous conduct around the time of the victim’s
death.
    ¶57 The deliberation and thought that Mr. Sanchez displayed
when finally strangling the victim also helps discredit any notion
that his ability to reason was overborne by intense feelings to such
a point that his “ability to make a rational choice [was]
overwhelmingly and substantially undermined.” Lambdin, 2017
UT 46, ¶ 39. 8 After Mr. Sanchez began his final attempt to strangle
the victim, he had the wherewithal to recognize that the method
he was using was not working. Mr. Sanchez was able to use
enough reason to change to a second method of strangling. And
when the second method was similarly proving ineffective, he
had the capacity to reason that he needed to try a third, and
finally successful, method. A person subjectively suffering from
extreme emotional distress—a person who has lost self-control
and whose ability to reason is “overborne by intense feelings” to
the point that his ability to think logically was “overwhelmingly
and substantially undermined”—would not be capable of such a
calculated choice.
    ¶58 Overall, Mr. Sanchez’s minimal proffered evidence
creates little, if any, potential argument that he was subjectively
under the influence of extreme emotional distress when he finally
caused the victim’s death. And that argument becomes even more
tenuous when considered with the other evidence presented at
trial. Under this special mitigation statute, Mr. Sanchez bore the
burden of proving extreme emotional distress by a preponderance
of the evidence. Frankly, we see no reasonable likelihood that a
jury would find that Mr. Sanchez had met his burden of proving
that he was subjectively under extreme emotional distress.
Therefore, if there were any error in not admitting the proffered
evidence under rule 106, that error would be harmless.




   8 Lambdin sets forth this requirement as part of the objective,
reasonable person test. 2017 UT 46, ¶ 39. But, as discussed, a
defendant must prove that he or she was subjectively under
extreme emotional distress that rises to the same level as that
required by the objective prong. See supra ¶ 43 n.6.


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                         STATE v. SANCHEZ
                       Opinion of the Court

                          CONCLUSION
    ¶59 We again leave open the question of when rule 106 can
apply to writings or recorded statements not actually introduced
into evidence and whether rule 106 defeats other rules of evidence
that preclude admissibility. Since the court of appeals
unnecessarily reached the issue of whether rule 106 overcomes
other rules that preclude admissibility, and we do not weigh in on
the issue, we vacate the rule 106 portion of the court of appeals’
decision. Therefore, without deciding that the trial court’s rule 106
determination was erroneous, we reach a determination as to the
harmlessness of an error if it existed.
   ¶60 We conclude that if there were any error, it would have
had no effect on the outcome of the case because there is no
reasonable likelihood that any jury would have found that
Mr. Sanchez was subjectively under extreme emotional distress at
the time he committed the murder. Because the court of appeals
reached its conclusion under an incorrect standard for whether a
defendant was objectively under extreme emotional distress, we
vacate that portion of the court of appeals’ decision. We affirm the
court of appeals on alternative grounds.




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