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

                                 2015 UT 73


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                             SALT LAKE CITY,
                               Respondent,
                                       v.
                     RICARDO ENRIQUE CARRERA,
                             Petitioner.

                              No. 20130800
                          Filed August 14, 2015

             On Certiorari to the Utah Court of Appeals

                     Third District, Salt Lake
               The Honorable Elizabeth Hruby-Mills
                         No. 111900790

                                 Attorneys:
             Padma Veeru-Collings, Steven L. Newton,
                    Salt Lake, for respondent
                         Richard G. Sorenson,
                        Salt Lake, for petitioner

 JUSTICE PARRISH authored the opinion of the Court, in which CHIEF
  JUSTICE DURRANT, JUSTICE DURHAM, and JUSTICE HIMONAS joined.
    ASSOCIATE CHIEF JUSTICE LEE authored a dissenting opinion.

   JUSTICE PARRISH, opinion of the Court:
                           INTRODUCTION
    ¶1 On certiorari, Ricardo Enrique Carrera challenges the court
of appeals‘ ruling affirming his conviction for unlawfully possessing
another‘s Social Security card. Mr. Carrera asserts that there was
insufficient evidence to support a reasonable inference that he knew



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                        Opinion of the Court
he was not entitled to possess the card. We agree and reverse the
court of appeals.
                               FACTS
   ¶2 In December 2010, in response to a call reporting a potential
crime, Salt Lake City Police Officer Jonathan Dew began a search of
the house where Mr. Carrera rented a room. During his search,
Officer Dew identified himself as a police officer and asked Mr.
Carrera to come out of his bedroom. After being asked several times,
Mr. Carrera finally joined Officer Dew in the living room.
    ¶3 Upon entering the living room, Mr. Carrera took an
aggressive stance against Officer Dew as if preparing to attack him.
Believing that Mr. Carrera may assault him, Officer Dew ordered
Mr. Carrera several times to sit down. Mr. Carrera ignored him.
Because of Mr. Carrera‘s noncompliant behavior, Officer Dew
attempted to place Mr. Carrera in handcuffs. Mr. Carrera pulled
away and resisted arrest. Eventually, Mr. Carrera complied with
Officer Dew‘s orders to get on the ground, and Officer Dew
handcuffed him.
   ¶4 Officer Dew placed Mr. Carrera under arrest and then
conducted a search incident to that arrest. The search uncovered
Mr. Carrera‘s wallet. Officer Dew searched the wallet and found an
unsigned Social Security card bearing the name of a Ms. Alvin.
Officer Dew asked Mr. Carrera to whom the card belonged and
whether he knew Ms. Alvin. Mr. Carrera responded that he did not
know her.
   ¶5 The State charged Mr. Carrera with interference with an
arresting peace officer and unlawful possession of another‘s
identification documents. See UTAH CODE § 76-8-305 (interference
with arresting officer); id. § 76-6-1105(2)(a) (unlawful possession). A
jury found Mr. Carrera guilty of both charges, and he timely
appealed his conviction for unlawfully possessing another‘s
identifying document. The court of appeals affirmed his conviction,
and we granted certiorari. We have jurisdiction pursuant to section
78A-3-102(3)(a) of the Utah Code.
                     STANDARD OF REVIEW
    ¶6 On certiorari, we review the court of appeals‘ decision for
correctness. Ramsay v. Kane Cnty. Human Res. Special Serv. Dist.,
2014 UT 5, ¶ 7, 322 P.3d 1163. We do not review ―the decision of the
trial court.‖ Id. (internal quotation marks omitted). In evaluating
sufficiency of the evidence claims, ―we review the evidence and all


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inferences which may reasonably be drawn from it in the light most
favorable to the verdict.‖ State v. Shumway, 2002 UT 124, ¶ 15,
63 P.3d 94.
                              ANALYSIS
    ¶7 Mr. Carrera argues that there was insufficient evidence for a
reasonable jury to decide beyond a reasonable doubt that he knew he
was not entitled to possess the Social Security card. The City
contends that reasonable inferences drawn from Mr. Carrera‘s
behavior, his admission that he did not know Ms. Alvin, and the
location of the card are sufficient to conclude that Mr. Carrera knew
he was not entitled to possess the Social Security card. We disagree.
We conclude that the City failed to present sufficient evidence to
establish Mr. Carrera‘s mental state and accordingly reverse.
   ¶8 Mr. Carrera was convicted of unlawfully possessing
another‘s identification document. Under Utah law,
       a person is guilty of [unlawful possession of another‘s
       identification document] if he . . . obtains or possesses
       an identifying document with knowledge that he is not
       entitled to obtain or possess the identifying document.
UTAH CODE § 76-6-1105(2)(a). Mr. Carrera does not dispute that he
possessed the Social Security card. But he argues that the City did
not present sufficient evidence to establish the required mens rea—
that he knew he was not entitled to possess the Social Security card.
    ¶9 Before we can determine whether the evidence sufficiently
established the mens rea element, we must determine what that
element requires. We begin by recognizing that the Legislature did
not make mere possession of another‘s identifying document
unlawful. Instead, it requires the City to prove that Mr. Carrera had
―knowledge that he [was] not entitled to obtain or possess the
identifying document.‖ Id. The City‘s arguments equate entitlement
with permission, asserting that because Mr. Carrera did not know
the owner of the card he could not have reasonably believed that he
was entitled to possess it. Mr. Carrera points to the case of a so-called
Good Samaritan who finds a lost Social Security card and picks it up
to return it or a police officer who seizes a stolen card for the same
reason. Neither the Good Samaritan nor the police officer knows the
person to whom the card belongs. They therefore both possess the
card without permission from its owner. Although the statute does
not provide any liability exception for such circumstances, the
Legislature certainly did not intend for either to be subject to
prosecution. Accordingly, knowledge that a person is not entitled to

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                        Opinion of the Court
possess a Social Security card requires more than the mere
knowledge that the person is holding the card without permission
from its owner. It must be knowledge of the absence of permission
plus something else. That something else may be an indication that
the card was stolen, that the person in possession had kept the card
beyond the time in which a reasonable person would have returned
it, that the person intended to use or had used the card, or that the
card was forged. There are any number of additional pieces of
evidence that would distinguish a Good Samaritan or a police officer
from an identify thief even though all possess the card without
permission.
    ¶10 Having determined what the mens rea element requires, we
turn to the question of whether the evidence was sufficient to meet
that requirement in this case. In assessing a claim of insufficiency of
the evidence, ―we do not examine whether we believe that the
evidence at trial established guilt beyond a reasonable doubt.‖ State
v. Holgate, 2000 UT 74, ¶ 18, 10 P.3d 346. Rather, we will overturn a
conviction when ―the evidence is sufficiently inconclusive or
inherently improbable such that reasonable minds must have
entertained a reasonable doubt that the defendant committed the
crime for which he or she was convicted.‖ Id. (internal quotation
marks omitted).
    ¶11 ―[I]t is a well-settled rule that circumstantial evidence alone
may be sufficient to establish the guilt of the accused.‖ State v.
Nickles, 728 P.2d 123, 126 (Utah 1986). Circumstantial evidence is
particularly useful in establishing intent because direct evidence of
intent is rarely available. We allow juries to rely on circumstantial
evidence to find intent on the basis of reasonable inferences drawn
from the evidence. See Holgate, 2000 UT 74, ¶ 21. However, jury
verdicts decided on the basis of ―remote or speculative possibilities
of guilt‖ are invalid. State v. Workman, 852 P.2d 981, 985 (Utah 1993).
Mr. Carrera‘s appeal turns on the distinction between a reasonable
inference and speculation.
   ¶12 This is a difficult distinction for which a bright-light
methodology is elusive. An ‗inference‘ is a ―conclusion reached by
considering other facts and deducing a logical consequence from
them.‖ See BLACK‘S LAW DICTIONARY 847 (9th ed. 2009). On the other
hand, ‗speculation‘ is the ―act or practice of theorizing about matters
over which there is no certain knowledge‖ at hand. Id. at 1529. In
short, the difference between an inference and speculation depends
on whether the underlying facts support the conclusion. A jury
draws a reasonable inference if there is an evidentiary foundation to

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draw and support the conclusion. In the case of speculation,
however, there is no underlying evidence to support the conclusion.
With this distinction in mind, we turn to the evidence in
Mr. Carrera‘s case.
    ¶13 At trial, the City argued that Mr. Carrera‘s knowledge may
be inferred from the fact that Mr. Carrera did not know Ms. Alvin.
The City argued, ―It‘s a reasonable inference and it‘s a reasonable
conclusion that if someone does not know someone, they‘re not
entitled to have anything of the person‘s ever.‖ And the City
contends that on the basis of this evidence, the jury could have
reasonably inferred that Mr. Carrera knew that he did not have
permission from Ms. Alvin to possess the card. But as we have
indicated, Mr. Carrera‘s lack of permission does not equate to
knowledge on his part that he was not entitled to possess the card.
Indeed, Officer Dew also possessed the card without permission
from Ms. Alvin, yet he is not subject to prosecution. In short,
something more—such as evidence suggesting a nefarious intent—is
required under the statute. We turn now to the remaining evidence
to look for such a suggestion.
    ¶14 Nothing about the location of the card in Mr. Carrera‘s
wallet provides an indication of a nefarious intent. It is only logical
that any person coming into possession of a Social Security card
would place it in his wallet for safe keeping regardless of his
innocent or malicious intent. Since placing the card in a wallet does
not show culpability any more than it shows innocence, it cannot be
the basis for a reasonable inference that Mr. Carrera had a nefarious
intent.
    ¶15 Mr. Carrera‘s behavior towards Officer Dew is likewise
inconclusive. The jury may have inferred from Mr. Carrera‘s hostility
and defensiveness that he was feeling guilty. But even assuming that
he felt guilty, there is no basis in the evidence for the jury to
conclude that his guilt stemmed from his possession of the Social
Security card and not something else. Accordingly, this evidence is
also insufficient to provide the nefarious intent required by the
statute.
    ¶16 In its brief to the court of appeals, the City also argued that
it was reasonable to conclude that ―[Mr.] Carrera stole the social
security card‖ because ―[Mr.] Carrera did not[,] before or after the
social security card was found[,] state how he obtained it, why he
was in possession of it, or if he even attempted to contact the police
to report it lost.‖ But at no time in its briefing to this court did the


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                         Opinion of the Court
City suggest that we could infer anything from Mr. Carrera‘s failure
to volunteer an innocent explanation for his possession of the card.
And we decline to make that leap here.
     ¶17 In appeals challenging the sufficiency of the evidence, like
the one before us, we ―review the evidence and all inferences which
may reasonably be drawn from it.‖ State v. Ashcraft, 2015 UT 5, ¶ 18,
349 P.3d 664 (emphasis added) (internal quotation marks omitted).
But we also retain discretion over whether to consider issues not
raised by the parties. We may, for example, deem an issue forfeited if
it is not raised, see State v. Roberts, 2015 UT 24, ¶ 20, 345 P.3d 1226,
ask the parties for supplemental briefing, see Utah Dep’t of Transp. v.
Admiral Beverage Corp., 2011 UT 62, ¶ 8, 275 P.3d 208, or decide to
reach the issue. In this instance, we decline to request supplemental
briefing or to otherwise exercise our discretion to address arguments
that the parties never made in order to indulge an inference that the
City never sought.
    ¶18 First, we question whether there is even a fair inference of
guilt to be drawn from Mr. Carrera‘s failure to voluntarily explain
why he was in possession of the card. At the time of arrest, Officer
Dew asked Mr. Carrera only one very specific question—whether he
knew Ms. Alvin. Mr. Carrera answered this question fully. Officer
Dew did not ask any follow-up questions. Accordingly, we question
whether any inference can be drawn at all from Mr. Carrera‘s failure
to engage Officer Dew in further discussion.
    ¶19 Second, even could an inference be drawn from Mr.
Carrera‘s silence, we cannot draw such an inference if that inference
is constitutionally impermissible, which may well be the case here.
Drawing an inference from Mr. Carrera‘s post-arrest silence
implicates serious Miranda and due process concerns and may
ultimately prove unconstitutional. See Berghuis v. Thompkins, 560 U.S.
370, 382 (2010) (explaining that to find a waiver of Miranda rights, the
prosecution must show that the defendant ―knowingly and
voluntarily‖ waived (internal quotation marks omitted)); Wainwright
v. Greenfield, 474 U.S. 284, 295 (1986) (recognizing that ―Miranda
warnings contain an implied promise, rooted in the Constitution,
that silence will carry no penalty‖ (internal quotation marks
omitted)). And because the City did not ask for an inference to be
drawn from what Mr. Carrera did not say post-arrest, neither party




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identified or briefed the serious constitutional issues the inference
calls into play.1
    ¶20 Third, the record before us is scant, providing minimal
insight into the interaction between Mr. Carrera and the officer and
silent as to whether Mr. Carrera received his Miranda warnings.2
Thus, supplemental briefing is unlikely to yield much factual clarity
in the matter.




   1 Contrary to the dissent‘s position, we do not understand the
City‘s response at oral argument to have affirmatively embraced the
inference. During oral argument, the City agreed an inference from
silence would raise a Fifth Amendment problem if Mr. Carrera had
explicitly invoked his right to remain silent. But in response to the
suggestion that the situation here was different because Mr. Carrera
answered the officer‘s question, the City did not weigh in as to
whether there was still a constitutional concern. Instead, it shifted
focus, asking the court to consider ―the totality of the evidence rather
than this limited interaction when [Mr. Carrera] was arrested.‖
   2 At trial and on appeal, the City has consistently presented Mr.
Carrera‘s affirmative statement that he did not know the owner of
the Social Security card as evidence of his guilt. Because Mr. Carrera
has never argued that Officer Dew failed to properly inform him of
his Miranda rights, he has forfeited his ability to argue against the
use of the affirmative statement. See State v. Mabe, 864 P.2d 890, 892
n.6 (Utah 1993) (holding that, absent exceptional circumstances, this
court will not consider on appeal an argument of noncompliance
with Miranda that was not raised in the trial court). But this forfeiture
does not extend to Mr. Carrera‘s silence because the City did not use
his silence against him at trial. He therefore had nothing to
challenge.
    The dissent argues that even though ―the prosecution did not
affirmatively ask the jury‖ to draw the inference from silence, ―savvy
counsel‖ could have asked for a limiting instruction. Infra ¶ 34. But it
strikes us as exceedingly poor strategy for defense counsel to use a
limiting instruction to highlight for the jury impermissible inferences
that were never mentioned at trial. Under the dissent‘s view, Mr.
Carrera‘s attorney also should have alerted the jury that it could not
consider Mr. Carrera‘s race or his decision not to testify, lest this
court, of its own accord, decide to draw such inferences on appeal.


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                        Opinion of the Court
    ¶21 In short, to consider any inference from what Mr. Carrera
did not say would require, for all practical purposes, that we order
supplemental briefing. It would be unwise in the extreme for us to
venture into this constitutional briar patch without the aid of such
briefing. But the evidentiary standard applicable to the review of a
verdict does not mandate that we exercise our discretion to order
supplemental briefing as to the constitutional implications of an
inference that, under the facts presented here, is of questionable
validity. And in light of the foregoing considerations, we decline to
so order.3
    ¶22 The evidence in this case is insufficient because the City
made no effort to show that Mr. Carrera had any nefarious intent. 4
Instead, it based its argument at trial and on appeal on Mr. Carrera‘s
mere possession without permission. In fact, during trial
Mr. Carrera‘s attorney asked Officer Dew ―whether [the] card was
misused in any way?‖ and the City objected, stating that because
Mr. Carrera ―already said he didn‘t know who [Ms. Alvin] was,‖ ―it
wouldn‘t matter if [the card] had been used unlawfully or not.‖ Such
reliance on simple possession without permission was a tactical
mistake on the part of the City that now leaves this court with
insufficient evidence on which to sustain the conviction.
                           CONCLUSION
   ¶23 This is a close case. Nevertheless the evidence falls short
when viewed separately or in the totality. We therefore reverse the
court of appeals and overturn Mr. Carrera‘s conviction for unlawful
possession of another‘s identification document.

   3Though we decline to consider the inference, we express no
opinion as to the ultimate merits of its constitutional permissibility.
We leave that decision for another day, when we have the benefit of
argument and briefing by the parties.
   4 Almost any effort on this front could have revealed additional
evidence sufficient to sustain the conviction. Hypothetically, the City
may have been able to discover that the card had been reported
stolen two months prior or that it was found among stolen goods
also belonging to Ms. Alvin. Or perhaps that Mr. Carrera had used
the card to obtain employment. Or maybe that Ms. Alvin lives
outside of Utah, that she is a child, or that she is deceased. Any one
of these facts would have provided a basis for the jury to conclude
that Mr. Carrera possessed the card with nefarious intent.



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                         Opinion of the Court
   ¶24 We reverse the conviction of Mr. Carrera for the unlawful
possession of another person‘s identification document. The
evidence presented to the jury was insufficient to sustain a
reasonable inference that Mr. Carrera knew he was not entitled to
possess the Social Security card.
                              _____________
   ASSOCIATE CHIEF JUSTICE LEE, dissenting:
    ¶25 Ricardo Carrera was convicted of unlawfully possessing
another person‘s Social Security card. In reviewing the verdict, we
are not asked to reevaluate Carrera‘s guilt, just to decide whether the
jury had sufficient evidence to find him guilty. In doing so, we
―review the evidence and all inferences which may reasonably be
drawn from it in the light most favorable to the verdict.‖ State v.
Petree, 659 P.2d 443, 445 (Utah 1983); see also State v. Nielsen, 2014
UT 10, ¶ 30, 326 P.3d 645. And if these inferences ―have a basis in
logic and reasonable human experience sufficient to prove that [the
defendant] possessed the requisite intent,‖ we must affirm. State v.
Maestas, 2012 UT 46, ¶ 179, 299 P.3d 892 (alteration in original)
(internal quotation marks omitted). In reviewing the evidence, in
other words, we not only make ―all inferences which may
reasonably be drawn from it‖; we are also supposed to ―stretch the
evidentiary fabric as far as it will go‖ in favor of the verdict. Petree,
659 P.2d at 445.
   ¶26 The majority overrides this standard in its analysis. It
declines to entertain an inference that was raised at oral argument in
our court and embraced there by the City1—an inference from


   1 Our decision shouldn‘t turn on this point for reasons explained
below. But the oral argument transcript is clear. When counsel for
the City was asked whether Carrera‘s answer to police opened the
door to an inference against him, counsel answered in the
affirmative. And during oral argument both sides debated the
viability of such an inference. The majority is right that the City did
not ―weigh in‖ in any detail on the extent of any constitutional
problems with an inference from a partial answer to police
questioning. Supra ¶ 19 n.1. But there is no doubt that the City
―affirmatively embraced the inference.‖ Supra ¶ 19 n.1. Thus,
counsel‘s analysis invited the court to consider ―‗the totality of the
evidence rather than this limited interaction‘‖ between Carrera and
                                                         (continued ...)

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                         A.C.J. LEE, dissenting
Carrera‘s statement to police that he did not know the person whose
name appeared on the Social Security card in question, without any
further explanation about why he possessed a card belonging to a
stranger. That inference, if permitted, is significant. It is at least
arguable that an innocent person in Carrera‘s circumstance would
have answered more than just ―no‖ to the question whether he knew
the person in question—he would likely have tried to explain why
he had the card. And a reasonable jury, if it thought about this point,
could conclude that the lack of a further explanation suggested that
there was none—and thus that Carrera knew he was not entitled to
possess the card in question.2
    ¶27 The majority refuses to ―indulge‖ this inference. Supra ¶ 17.
It does so on two grounds: (a) its purported ―discretion‖ to ignore
evidentiary inferences ―not raised by the parties‖ in their briefs,
supra ¶ 17; and (b) a ―concern[]‖ that such an inference ―may well‖
raise constitutional problems, supra ¶ 19. Neither point is persuasive.
    ¶28 I find no support in our caselaw or elsewhere for the notion
of appellate discretion to ignore a fair inference from the evidence in
the record—even one not briefed by the parties. Our longstanding
precedent cuts strongly the other way. The standard of review that
we have articulated conveys respect for and deference to the jury‘s
assessment of the evidence. We reverse for insufficiency ―only when


the officer, supra ¶ 19 n.1, but that ―totality‖ expressly encompassed
the inference in question.
   2 The majority questions whether ―a fair inference of guilt‖ can be
drawn from Mr. Carrera‘s limited response. Supra ¶ 18. But surely an
innocent person would have been more likely to say more – or, more
specifically, a reasonable jury could infer that an innocent person in
his circumstance would likely do so.
   The applicable standard is far more deferential than the majority‘s
application of it. It directs us to sustain the jury‘s verdict if any
inference could ―reasonably‖ be drawn from the ―evidentiary fabric‖
of the case (stretched ―as far as it will go‖), State v. Petree, 659 P.2d
443, 445 (Utah 1983);, and informed by any ―basis in logic and
reasonable human experience,‖ State v. Maestas, 2012 UT 46, ¶ 179,
299 P.3d 892.




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                         A.C.J. LEE, dissenting
the evidence . . . is sufficiently inconclusive or inherently improbable
. . . that reasonable minds must have entertained a reasonable doubt
that the defendant committed the crime for which he or she was
convicted.‖ Maestas, 2012 UT 46, ¶ 177 (emphasis added) (internal
quotation marks omitted). ―We cannot disturb the jury‘s conclusion
just because it could have reasonably come to a different one.‖ State v.
Ashcraft, 2015 UT 5, ¶ 30, 349 P.3d 664.
    ¶29 The logic of that standard forecloses the majority‘s notion of
discretionary power to ignore a reasonable inference that is apparent
from the record but not expressly advanced in the briefs. We rely on
adversarial briefing. Certainly. But we are also supposed to engage
our minds and our own analysis. If there is an inference that
logically flows from the evidence in the record, we cannot properly
say that ―reasonable minds must have‖ rejected it. Maestas, 2012 UT
46, ¶ 177.
   ¶30 The governing standard of review tells us not to substitute
our judgment for that of the jury. Surely that also means that
appellate counsel‘s judgment (in presenting or not presenting a
particular inference for our consideration) is likewise no substitute.
The basis for the verdict must be in ―logic and reasonable human
experience‖ as applied to the evidence, id. ¶ 179 (quoting State v.
Holgate, 2000 UT 74, ¶ 21, 10 P.3d 346), not in arguments from
counsel. We ignore the operative standard—and undermine the
dignity of the jury verdict in our system of justice—in asserting the
contrary power in this case.
   ¶31 The majority‘s cases, supra ¶ 17, are not to the contrary.
Neither State v. Roberts, 2015 UT 24, ¶ 20, 345 P.3d 1226, nor Utah
Department of Transportation v. Admiral Beverage Corp., 2011 UT 62,
¶ 8, 275 P.3d 208, addresses the standard of review of a jury verdict
on sufficiency of the evidence grounds. The point raised in these
cases, moreover, is beside the point here. I agree that ―an issue‖ is
―forfeited if it is not raised.‖ Supra ¶ 17. But the issue here is one we
are reaching—sufficiency of the evidence to support the jury verdict.
And we must address that issue by yielding all reasonable inferences
(even those not advocated in the briefs) to support the jury verdict. A
jury is not asked to anticipate what arguments may be raised on
appeal. It is expected to bring to bear its full range of ―logic and
reasonable human experience‖ in rendering inferences which can
reasonably and logically be drawn. Maestas, 2012 UT 46, ¶ 179


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                         A.C.J. LEE, dissenting
(quoting Holgate, 2000 UT 74, ¶ 21). We undermine that
responsibility if we set aside a verdict despite an inference that
occurs to us but was not briefed by appellate counsel.
    ¶32 That leaves the question whether there is a constitutional
barrier to the inference from Carrera‘s truncated answer to the
police. The majority does not give an answer to that question. And it
counsels against ―ventur[ing] into this constitutional briar patch‖ in
this case. Supra ¶ 21. That seems wise given that the constitutional
issues identified by the majority were never raised by Carrera and
have not been briefed by the parties.
   ¶33 The constitutionality of the inference in question is a matter
that Carrera had a chance to raise at various points in the
proceedings leading to our decision. His various failures to raise this
matter at least arguably resulted in forfeiture of this argument.
    ¶34 The first such opportunity was at trial. I see no way to know
whether ―the City . . . use[d] [Carrera‘s] silence against him at trial.‖
Supra ¶ 20 n.2. It appears to be true that the prosecution did not
affirmatively ask the jury to draw an inference from Carrera‘s
silence. But that does not at all mean that the jury never made such
an inference. And savvy counsel could certainly have moved for a
limiting instruction (reminding the jury of Carrera‘s right to remain
silent, or in other words not to volunteer information to the police).
   ¶35 Trial, moreover, was not the only opportunity that Carrera
had. Clearly the City did advocate the inference in question in the
court of appeals. See supra ¶ 16. And Carrera‘s counsel raised no
constitutional objection in those proceedings.
    ¶36 Finally, although it is true that the City‘s briefing in our
court failed to mention the inference in question, it was a matter
addressed at length in oral argument. See supra ¶ 26. Again, if
Carrera‘s counsel saw a constitutional problem (a problem that was
vaguely alluded to but not analyzed in any detail or by reference to
any controlling authority), counsel could easily have sought leave to
file a supplemental brief.
    ¶37 The majority is right that ―we cannot draw . . . an inference
if that inference is constitutionally impermissible.‖ Supra ¶ 19. But
the court is not so concluding. It is only saying that there ―may well
be‖ constitutional problems here—that there are ―Miranda and due
process concerns‖ that ―may ultimately‖ stand in the way of an


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                         A.C.J. LEE, dissenting
inference from Carrera‘s partial answer to the police. Supra ¶ 19. The
phrasing is significant. Given the lack of briefing and the difficulty of
the issues, the court is not rejecting the inference in question on
constitutional grounds. It is expressly declining to do so. After all, a
constitutional ―concern[]‖ is only a question, and the notion that there
―may well be‖ constitutional problems is the same thing as saying
that there ―may not be.‖ Supra ¶ 19.
    ¶38 In all events, we have means for answering questions not
adequately answered in the parties‘ briefs. We can (and should)
order supplemental briefing. Sometimes such orders even resolve
factual questions that seem unanswered on a ―scant‖ record. Supra
¶ 20. In State v. Fuller, 2014 UT 29, ¶ 16, 332 P.3d 937, for example,
we ordered supplemental briefing when we noticed that an arrest
warrant of significance to our analysis did not seem to appear in the
record. And the response we received included a stipulation from
the parties. See id. I see no reason to assume that we would get no
such help in this case. If the court is truly concerned about the
constitutional question it identifies, it should order supplemental
briefing. Once we get the briefing we will then be equipped to
determine whether such inference is ―constitutionally permissible.‖
Supra ¶ 19.
   ¶39 Unless and until we do so, we should not confuse the
analysis by identifying a concern we are unwilling to resolve. We
can‘t have it both ways. Either we address the constitutional problem
or we set it aside. It makes no sense to identify constitutional
―concerns‖ if we are unwilling to dive into the analysis necessary to
resolve them.
    ¶40 The constitutional issues in this case are at least deserving of
supplemental briefing. To know whether the inference in question
would raise a Fifth Amendment problem, we would need answers to
two sets of important questions: (a) whether an inference from a
partial answer to a police question in these circumstances would
implicate the Fifth Amendment; and (b) whether Carrera may have
forfeited any Fifth Amendment concern in this case (i) by answering
the officer‘s question after a Miranda warning was read (if it was, and
we can‘t tell from this record), (ii) by failing to raise an objection at
trial, or (iii) by failing to raise an argument in the court of appeals.




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                     SALT LAKE CITY v. CARRERA
                        A.C.J. LEE, dissenting
    ¶41 None of these issues were briefed. So we are in no position
to dispose of the case on the basis of our concerns about a potential
Fifth Amendment problem.
    ¶42 I respectfully dissent for these reasons. I see no room in our
standard of review for ignoring the inference that the majority
rejects. And the constitutional issues the court raises merit further
analysis after supplemental briefing.




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