Opinion
T 1 Twо men-one an unofficial neighborhood watch volunteer, the other a certified public accountant-got out of their SUVs and squared off near midnight in their Bluffdale neighborhood. Each was armed with a loaded semi-automatic pistol. One shot the other. The victim is paralyzed below the chest. The shooter, Reginald Campos, was convicted of attempted murder with injury, a first degree felony, and aggravated assault, a third degree felony. 1
T2 Campos challenges his convictions, alleging a number of errors in the trial and arguing that he was denied a fair trial because he was deprived of his constitutional right to effective assistance of counsel. We conclude that Campos's trial counsel performed deficiently in three instances. While each instance alone might not be sufficiently prejudicial to require reversal in this case, taken as a whole trial counsel's deficient *1166 performance undermines our confidence in the verdict on the attempted murder charge. We therefore reverse the conviction for attempted murder. We affirm the conviction for aggravated assault. 2
BACKGROUND 3
13 Around 11 p.m. on July 21, 2009, David Serbeck, a former bounty hunter and Army sniper, was outside his house packing for a camping trip when his neighbor stopped by to talk. Serbeck's neighbor, the local homeowners' association president, showed Ser-beck several photographs he had obtained of suspects and cars possibly involved in recent crimes in the neighborhood. Serbeck thought he recognized some of the vehicles and people in the photographs. The two men decided to drive around the neighborhood, along with Serbeck's nine-year-old daughter, on an unofficial neighborhood watch patrol.
1 4 As they were driving, Serbeck saw two sixteen-year-old girls walking. He slowed his SUV and said out the window something to the effect of, "Hey, what's up?" or "Be careful going home." The girls did not respond, and Serbeck drove on.
T5 One of the girls was Campos's daughter. When she and her friend arrived at the Campos house, they got into a car and drove to pick up another friend at a nearby house. After picking up the friend, they all returned to the Campos house, and on the way they passed Serbeck's SUV. Serbeck mistook the girls' car for one of the suspicious cars in the photographs. He made a U-turn and began following the car. The girls were "freaked out" and "a bit traumatized" when they realized that the same individual who had spoken to them earlier was now following them. One of the girls called Campos to tell him they were being followed and to ask for help. Campos got his handgun from the house and drove to meet the girls, who by this time had lost Serbeck by turning out of the neighborhood onto a major road.
16 After losing sight of the girls' car, Serbeck and his neighbor returned home. Soon, however, Serbeck saw the same car drive down the street. Serbеck decided to go on patrol again. According to Serbeck's testimony, he went inside his house, grabbed his handgun, inserted a loaded magazine, racked the gun, and engaged the slide safety. Serbeck placed his gun under the center console in his SUV, and Serbeck and his neighbor-but not Serbeck's daughter-set out to find the car. Serbeck's neighbor did not know that Serbeck had brought a gun.
7 Meanwhile, Campos arrived home with the girls. He sent his daughter's friends into the house and asked his daughter to explain what had happened, though she was too "hysterical" to do so at first. Campos had his daughter get into an SUV, and they went to find the other SUV. As they were driving, Campos passed Serbeck's vehicle When Campos's daughter identified it as the SUV that had followed her, Campos made a U-turn, pulled in front of Serbeck, and abruptly stopped, forcing Serbeck to stop quickly to avoid hitting Campos's vehicle.
18 Serbeck's and Campos's accounts of what happened next differed in slight but significant ways. Serbeck testified at trial that Campos got out of his SUV pointing his gun at Serbeck and Serbeck's neighbor. Campos "raged," pacing back and forth and "screaming something about someone following his daughter." Serbeck got his gun and got out of his SUV, staying halfway behind the open door. Serbeck asked Campos to calm down and asked what was going on. Serbeck introduced himself as part of the neighborhood watch and said he was with the homeowners' association presidеnt. When Campos began to lower his voice and his weapon, Serbeck told Campos he was going to put his gun down. He erossed the gun in front of his chest as he moved it from his right hand to his left, stepped out from be *1167 hind the door, placed the gun on the ground, and kicked it behind him. As Serbeck again asked what was going on, he heard a girl inside Campos's SUV seream, "[DJon't believe him[;] they are lying, they are lying." Campos said, "[HJow stupid do you think I am?" As Serbeck was standing back up, Campos shot him.
19 Campos related his account of the events to a police officer later that evening. He told the officer that after stopping the SUV, he retrieved his gun from a locked case and put it in his back pocket. He got out of the SUV, keeping his hand on the gun. He yelled to Serbeck and Serbeck's neighbor something to the effect of, "Why are you chasing my daughter?" He saw Serbeck get out of his SUV holding a gun and stand halfway behind the open door. Serbeck said something, but Campos could not remember what it was. Campos heard Serbeck rack his gun and saw him start to raise it. Campos pulled his own gun out of his pocket, racked it, and fired at Serbeck. He then moved to the right to get a better view of Serbeck and fired again. Campos recalled shooting his gun a total of two or three times.
[ 10 Serbeck's neighbor testified that Campos had his gun in hand and pointed at the ground when Campos got out of the SUV. When Serbeck got out of the SUV with his gun, Campos raised his gun. Campos was angry and said something to the effect of, "[What the hell are you guys doing?" After Serbeck got out of the SUV, his neighbor could not see him, but he heard Serbeck say, "[HJold on a minute." Immediately after this exchange, Serbeck's neighbor heard three shots. He never heard Serbeck rack his gun.
11 Campos's daughter testified that she saw Campos retrieve something from a box before getting out of the SUV, but she did not see what it was. She did not see most of what followed because she was sitting in the SUV facing away from Campos and Serbeck. She heard Campos ask Serbeck and his neighbor what they were doing following his daughter and her friends, why they were "messing around with [his] daughter," "what they were doing out this late at night," and "why they were wandering the streets." They "wouldn't answer." She testified that Campos did not yell; rather, he was calm and "in control of himself." She then heard two or three shots.
' 12 One bullet struck Serbeck and he fell to the ground. The bullet entered his chest near the shoulder, punctured a lung, and severed the spinal cord on its way out, paralyzing Serbeck from the chest down. When Serbeck realized how much he was bleeding, he stuck his finger in the wound to stanch the flow. An expert witness testified that the trajectory of the bullet was consistent with Serbeck's bending over or crouching, but he could not say whether Serbeck was in fact doing so.
1 13 After Campos shot Serbeck, he pointed his gun at Serbeck's neighbor, who was still in the SUV, and told him to put his hands up and not move. Campos got his phone and called 911 to requеst an ambulance. He continued to point his gun at Serbeck and his neighbor, yelling to Serbeck at one point, be messing with the gun!" Onee Campos was sure Serbeck's neighbor did not have a gun, Campos let him get out of the SUV and help Serbeck. After Serbeck's neighbor walked around the SUV to where Serbeck was, Campos told the neighbor to kick Serbeck's gun farther away, which he did.
1 14 About the time Serbeck's neighbor got out of the SUV, a woman who had heard the commotion from a nearby house came and asked Campos if she could approach Serbeck to help. As she approached Serbeck, she used the bottom of her sandal to turn the barrel of Serbeck's gun away from Serbeck, his neighbor, and herself. She testified that she later checked the bottom of her sandals before entering her house and did not see any blood on them. Although Campos still had his gun in his hand, the woman testified that he was pointing it in the air and that he was fairly calm and "level-headed." However, she heard a female in the background screaming, "He is lying, he is lying."
1 15 After the police and emergency medical personnel arrived, Serbeck was flown to the hospital. But before he was taken, Ser-beck asked an officer to make sure that the *1168 safety on his gun was engaged; he later testified that he did so because he had heard Campos tell the 911 operator that Serbeck had racked his gun. The officer confirmed that the slide safety wаs on. At trial, a gun expert testified that an engaged slide safety would prevent someone from racking the gun. The expert also testified, and demonstrated, that the slide safety could be engaged by directly kicking the safety. Investigators also found one bullet in the chamber of Serbeck's gun and one in the magazine, and there was some blood on the back of the handle. Two shell casings from Campos's gun were found.
16 At trial, Campos argued that he acted in self-defense. He asserted that he shot Serbeck only after he saw Serbeck with a gun and heard him rack it. He argued that Serbeck's safety engaged when the gun was kicked. And he argued that the blood got on Serbeck's gun because Serbeck was holding it when he was shot, and the State had provided no evidence that the blood got on the gun when Serbeck's neighbor kicked it. Campos further argued that it was reasonable under the circumstances to point his gun at Serbeck's neighbor until he could be sure that he was unarmed.
117 The jury rejected Campos's self-defense argument and convicted Campos of attempted murder with injury for shooting Serbeck and aggravated assault for holding Serbeck's neighbor at gunpoint 4 Campos was sentenced to consecutive terms of three years to life for attempted murder with injury and an indeterminate term not to exceed five years for aggravated assault. Campos challenges the convictions on appeal.
ISSUES AND STANDARDS OF REVIEW
118 In challenging his cоnviction for attempted murder, Campos asserts three claims of ineffective assistance by his trial counsel. He contends that his trial counsel performed deficiently by (1) failing to request a special mitigation jury instruction for extreme emotional distress, (2) failing to object to a verdict form that misplaced the burden of proof for imperfect self-defense, and (8) failing to object to several statements made by the prosecutor in closing arguments. "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law." State v. Clark,
19 Campos advances other challenges to his conviction for attempted murder. Because we conclude that Campos is entitled to a new trial on the basis of ineffective assistance of counsel, we do not address his remaining claims other than to provide limited guidance on remand.
120 Campos challenges his convietion for aggravated assault first by arguing that the trial court improperly excluded expert testimony relevant to the reasonableness of Campos's actions. "The trial court has wide discretion in determining the admissibility of expert testimony, and such decisions are reviewed under an abuse of disceretion standard. Under this standard, we will not reverse unless the decision exceeds the limits of reasonability." State v. Larsen,
121 Campos alsо challenges the aggravated assault conviction by arguing that he was entitled to a lesser included offense Jury instruction on threatening with a dangerous weapon. "[Wle review a court's ruling on a proposed jury instruction for correctness...." Maestas,
ANALYSIS
I. Ineffective Assistance of Counsel
122 Campos contends that he was denied a fair trial because he received ineffective *1169 assistance of counsel when his trial counsel failed to request a jury instruction on extreme emotional distress, failed to object to the verdict form, and failed to object to several instances of alleged prosecutorial misconduct.
123 To ensure a fair trial, the Sixth Amendment of the U.S. Constitution guarantees the right to effective assistance of counsel. Strickland v. Washington,
124 In addition, "[the defendant must show that there is a reasonable prоbability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland,
A. Extreme Emotional Distress Instruction
125 Campos first contends that his trial counsel performed deficiently by failing to request a special mitigation jury instruction on extreme emotional distress.
126 Under the current statute, extreme emotional distress operates as a special mitigating circumstance that must be proved by a preponderance of the evidence. See Utah Code Ann. § 76-5-205.5 (LexisNexis 2012); State v. Drej,
127 If the trier of fact finds that each element of attempted murder has been established beyond a reasonable doubt "and also that the existence of special mitigation ... is established by a preponderance of the evidence," "the defendant shall instead be found guilty of attempted manslaughter." Id. § 76-5-205.5(5)(a), (5)(b)(iv). However, a jury's determination on special mitigation must be unanimous. See id. § 76-5-205.5(6). "If the jury is unable to unanimously agree whether or not special mitigation has been established, the result is a hung jury." Id. § 76-5-205.5(6)(d).
4 28 Campos argues that his trial counsel's failure to request a special mitigation jury instruction for extreme emotional distress-in addition to the instructions on self-defense-was deficient because extreme emotional distress is clearly a stronger defense in this case than self-defense. The State responds that Campos's trial counsel's actions were reasonable because Campos would not have been entitled to an instruction on extreme emotional distress, and because arguing both self-defense and extreme emotional distress would have been inconsistent.
129 First, we note that Campos would have been entitled to an instruction on extreme emotional distress. "Each party is . entitled to have the jury instructed on the law applicable to its theory of the case if there is any reasonable basis in the evidence to justify it." State v. Torres,
130 Our supreme court has explained that "a person acts under the influence of extreme emotional distress when
*1170
he is exposed to extremely unusual and overwhelming stress that would cause the average reasonable person under the same cireumstаnces to experience a loss of self-control, and be overborne by intense feelings, such as passion, anger, distress, grief, excessive agitation, or other similar emotions." Id. 126 (citation and internal quotation marks omitted).
6
However, the statute excludes from the purview of emotional distress "mental illness" and "distress that is substantially caused by the defendant's own conduct." Utah Code Ann. § 76-5-205.5(8). Thus, "an external triggering event is also required." White,
131 For example, in State v. White, the supreme court reversed our denial of an extreme emotional distress instruction. See
32 The State argues that Campos "substantially caused" his own emotional distress when he retrieved his gun, drove with his daughter to find Serbeck, forced Serbeck to stop by pulling in front of him, and confronted Serbeck with his gun in hand. However, this argument ignores the initial triggering event that led Campos to take the actions described by the State: Campos's teenage daughter and her friends arrived at Campos's house in a panic after being followed late at night. By the time Campos confronted Serbeck, Serbeck testified that Campos was "[enlraged," "mad," and "sereaming something about somebody following his daughter." 7 Based on this evidence, a rational jury might conclude that Campos was under "extremely unusual and overwhelming stress that would cause the average reasonable person under the same circumstances to experience a loss of self-control, and be overborne by intense feelings, such as passion [and] anger." See id. 126 (citation and internal quotation marks omitted). That Campos could have called 911 rather than pursuing and shooting Serbeck-in other words, that Campos acted in a way that arguably exhibited "loss of self-control" and his being "overborne by intense feelings"-does not necessarily mean that Campos substantially caused his own emotional distress. Although the jury may not have ultimately concluded that Campos was acting "under the influence of extreme emotional distress" or that the cireumstances presented "a reasonable explanation or excuse" for that emotional distress, see Utah Code Ann. § 76-5-205.5(1)(b) (Lex-isNexis 2012), the evidence providеs some basis for such a conclusion and Campos would have been entitled to a jury instruction on extreme emotional distress had his counsel requested one.
183 The State argues, however, that failure to request such an instruction does not constitute deficient performance because doing so would have been inconsistent with Campos's theory of the case. The State argues that throughout the trial defense counsel presented Campos as calm and in control in an effort to strengthen its case that Campos acted reasonably for purposes of self-defense. The State thus argues that we should not second-guess defense counsel's strategic choice to pursue the self-defense *1171 theory to the exclusion of the "inconsistent" emotional distress theory.
134 "[Aluy election between inconsistent defenses [is] a legitimate exercise of trial strategy rather than ineffective assistance of counsel." State v. Pascual,
135 Here, defense counsel might have argued both self-defense and extreme emotional distress. Indeed, the two defenses are sometimes asserted together. Seq, e.g., State v. Spillers,
1 36 However, given the "heavy measure of deference" we apply to counsel's judgments, Strickland v. Washington,
B. Verdict Form
137 Campos next challenges his trial counsel's failure to object to the verdict form's description of imperfect self-defense. Imperfect self-defense is an affirmative defense to a charge of attempted murder. Utah Code Ann. § 76-5-208(4)(a); State v. Low,
$838 The prosecution is required to "disprove the existence of affirmative defenses beyond a reasonable doubt once the defendant has produced some evidence of the defense." State v. Drej,
39 In the present case, the jury was given a verdict form for the charge of attempted murder with injury. The form read as follows:
We, the jurors in the above case, unanimously find the defendant, Reginald Campos:
___ Guilty beyond a reasonable doubt of Attempted Murder with Injury;
__ Not guilty of Attempted Murder with Injury.
ONLY if you find the Defendant, Reginald Campos, guilty of Attempted Murder with Injury, then answer the following:
___ We find, beyond a reasonable doubt, that the defense of Imperfect Self Defense applies in this case;
We find, beyond a reasonable doubt, that the defense of Imperfect Self Defense does not apply in this case.
(Emphasis added.) Campos argues that by asking the jury whether it found beyond a reasonable doubt that the affirmative defense applied, the verdict form effectively shifted the burden of proof from the State to Campos.
1 40 The State concedes only that the verdict form contained "less-than-clear language." The State suggests that the form was not erroneous, because it did not state or imply that the defendant bore the burden to prove that imperfect self-defense applied. We disagree.
141 The fundamental problem with the verdiet form used in this case is that it requires an affirmative defense to be established beyond a reasonable doubt. This is contrary to Utah law. A defendant need only produce enough evidence to raise a reasonable basis for the affirmative defense. See State v. Sellers,
142 Because "the burden of proof required for affirmative defenses is counter-intuitive," State v. Garcia,
143 Here, sufficient evidence was presented to warrant a jury instruction on imperfect self-defense. The judge gave a jury instruction on imperfect self-defense, and the instruction properly described the burden of proof. However, the verdiet form directly contradicted that instruction by asking the jury to find either that the affirmative defense had been disproved beyond a rеasonable doubt, or that it had been proved beyond a reasonable doubt. This was error.
T 44 Campos's trial counsel did not object to the verdict form, and in fact proposed a similarly flawed form-as did the prosecution. Campos therefore argues that he was deprived of his constitutional right to effective assistance of counsel. To show that his trial counsel's assistance "fell below an objective standard of reasonableness," Campos "must overcome the presumption that, under the cireumstances, the challenged action might be considered sound trial strategy." Strickland v. Washington,
T 45 As stated above, the verdict form was fundamentally flawed. Once it had been established that an imperfect self-defense instruction was warranted, "lilt was ... [Campos's] trial counsel's responsibility to ensure that it be made plain to the jury that [Campos] did not bear any further burden of proof on the matter and that, rather, the State alone had the responsibility to disprove his defense beyond a reasonable doubt." See Sellers,
46 To demonstrate that he is entitled to relief on appeal, Campos must show not only that his trial counsel performed deficiently, but also that he was prejudiced by his trial counsel's deficient performance. See Strickland,
C. Prosecutorial Misconduct
T47 Campos challenges his trial counsel's failure to object to several statements made by the prosecutor in closing arguments. While most of the statements Campos challenges do not rise to the level of prosecutorial misconduct, two statements do.
1. Unfairly appealing to the sympathies and passions of the jury
T48 The prosecutor began his closing remarks by stating that this case was about "civilized society," "[slociety versus the man who takes the law into his own hands. It's society versus the self-appointed accuser and self-appointed judge." He returned to this theme in his final words to the jury:
[Olur whole system of law is based on the concept of justice. Which simply means when you commit a crime like this, when you gun down your fellow neighbor in the most tragic of ways, stealing from him his ability to run, his ability to bike, his ability to walk his daughter down the aisle, when you do something like that on the streets of our community then you should be held accountable. Hold Mr. Campos accountable for his actions and to do that, find him guilty on all counts.
49 Campos argues that these statements were inflammatory and inappropriately appealed to passion and prejudice. He argues that the statements prompted the jury to put themselves in the shoes of the victim and to *1174 consider matters outside the evidence. The State responds that the prosecutor was entitled to make a plea that justice be done and that Campos be held accountable for his actions: "[The prosecutor's argument legitimately [implied] that Defendant's conduct was that of a vigilante and that society, represented by the jury, should hold responsible a person who unlawfully takes matters into his own hands and harms another person in the process." We agree with Campos.
150 To determine whether a prosecutor's remarks are "so objectionable as to merit a reversal," we must determine whether the remarks "call to the attention of the jurors matters which they would not be justified in considering in determining their verdict." State v. Valdez,
151 Applying these standards, our courts have held that "a prosecutor is prohibited from asking jurors to put themselves in the victim's place," see id. 119, or suggesting "that the jury has a duty to protect the alleged viectim-to become her partisan," see State v. Wright,
152 Here, the prosecutor's comments called attention to matters the jury should not have considered in reaching its verdict. We are most troubled by the prosecutor's reference to Campos's "stealing from [Serbeck] his ability to run, his ability to bike, his ability to walk his daughter down the аisle." The statement was a direct appeal to the passions of the jury. It suggested to the jury that it should find Campos guilty out of vengeance or sympathy for the victim rather than based on what the facts and the law required.
153 Taken as a whole, the prosecutor's statements in the present case constituted prosecutorial misconduct. The prosecutor appealed to the passions of the jury and the jury's duty to society to argue that Campos should be found guilty because of the tragic consequences suffered by Serbeck. The jury's guilty verdict must be based on an impartial determination that the State proved each element of the charged crimes beyond a reasonable doubt, see Todd,
2. Personal attack on defense counsel
[ 54 Campos also challenges several statements where the prosecutor compared the defense's theory of the case to a red herring and suggested that defense counsel was being deceitful. The State responds that the prosecutor's statements " 'were not directed at defense counsel personally, but rather were comments on the defense theories"" (Quoting State v. Norton,
*1175 155 In closing arguments, the prosecutor began his rebuttal by discussing at length the idiom of a red herring as "a technique to confuse or distract." In applying the idiom to this case, the prosecutor stated, "And is there any relationship with a red herring and the defense in this case? They would have you believe an almost unbelievable story. Why? Simply to confuse and distract.... Why would they do that? Just a red herring. A ploy to confuse and distract."
156 As noted above, the basic test for prosecutorial misconduct is whether the statements "call to the attention of the jurors matters which they would not be justified in considering in determining their verdict." State v. Valdez,
157 The prosecutor's comments here crossed the line from permissible argument of the evidence to an impermissible attack on defense counsel's character. The prosecutor argued not only that the claim of self-defense was a distraction, but also that it was a technique or ploy to confuse and distract the jury. That is, the prosecutor argued that defense counsel intended to mislead the jury. Arguing that the evidence does not support the defense theory and that the theory is thus a distraction from the ultimate issue is fundamentally different from arguing that defense counsel is intentionally trying to distract and mislead the jury. Cf. State v. Harmon,
3. Deficient performance
158 Campos argues that his trial counsel's failure to alert the trial court to both instances of prоsecutorial misconduct "fell below an objective standard of reasonableness" and thus constituted deficient performance. See Strickland v. Washington,
T59 Furthermore, the two instances of prosecutorial misconduct book-ended the prosecutor's rebuttal argument, which opened with the red herring reference and closed with the appeal to the jury's sympathy for Serbeck. Campos's trial counsel thus did not have an opportunity to counter the statements through argument to the jury. We acknowledge that "interruptions of arguments, either by an opposing counsel or the
*1176
presiding judge, are matters to be approached cautiously." Young,
T 60 Campos must also establish that his counsel's failure to at least request a curative instruction prejudiced his case. While these two instances of unchallenged prosecutorial misconduct may not be sufficiently prejudicial on their own to require reversal, they must also be viewed in the context of the improper verdict form. We thus turn to the issue of cumulative prejudice.
D. Cumulative Prej udice
T61 Each of the three instances of deficient performance identified above requires a showing of prejudice to merit reversal. See Strickland,
162 The State argues that the error on the verdiet form could not be prejudicial because the prosecution and defense each informed the jury in closing arguments that the State bore the burden of disproving self-defense beyond a reasonable doubt. However, we do not agree that these statements rendered the error harmless. The jury was expressly instructed to ignore anything in counsel's closing arguments that conflicted with the jury instructions: "If they say anything аbout the law that conflicts with these instructions, you are to rely on these instrue-tions." "In the absence of any circumstances suggesting otherwise, courts presume that the jury follows such instructions." State v. Wright,
1 63 The State also argues that the error on the verdict form could not be prejudicial because several other instructions correctly informed the jury of the burden of proof. Most of the instructions cited by the State simply state that the prosecution bears the burden of proof or that guilt must be established beyond a reasonable doubt. The instruction most relevant to the issue of prejudice is the instruction on imperfect self-defense, which clearly and correctly stated that a reduction of the charge to attempted manslaughter is required if the State fails to meet its burden:
The defendant is not required to prove that the defense applies. Rather, the State must prove beyond a reasonable doubt that the defense does not apply. The State has the burden of proof at all times. If the State has not carried this burden, the defendant may only be conviet-ed of attempted manslaughter.
164 The State is correct that, when reviewing an alleged error in the jury instructions, "we look at the jury instructions in their entirety." State v. Maestas,
165 Conflict between jury instructions and a verdict form may be deemed harmless in some cireumstances. See Parsons v. Barnes,
(I 66 In the context of this case, we do not believe the error was harmless. Although the verdiet form cоrrectly speaks in terms of the jury's finding "beyond a reasonable doubt, that the defense of Imperfect Self Defense does not apply in this case," the jury's other option on this question was to find "beyond a reasonable doubt, that the defense of Imperfect Self Defense applies in this case." (Emphasis added.) The jury's level of certainty may well have been influenced by a belief that to reach the opposite conclusion, they had to be convinced beyond a reasonable doubt. The likelihood that the jury was actually misguided and would have reached a different result with a proper verdict form is increased when this error is considered in conjunction with the prosecuto-rial misconduct.
167 In determining whether a prosecutor's inappropriate statements prejudiced the defendant, we consider whether, "under the circumstances of the particular case," the jury was "probably influenced by. those remarks," State v. Valdez,
If proof of defendant's guilt is strong, the challenged conduct or remark will not be presumed prejudiciаl. Likewise, in a case with less compelling proof, this Court will more closely serutinize the conduct. If the conclusion of the jurors is based on their weighing conflicting evidence or evidence susceptible of differing interpretations, there is a greater likelihood that they will be improperly influenced through remarks of counsel.
State v. Troy,
T 68 At trial, Campos did not contest the fact that he shot Serbeck. Rather, he argued that he acted in self-defense. One version of events supported by the evidence is that after Campos stopped Serbeck, Campos got out of the SUV with his gun in his back pocket. He drew his gun when he heard Serbeck rack his own weapon and saw Ser-beck starting to raise it. Serbeck dropped his gun when Campos shot him, and the safety engaged when Serbeck's neighbor kicked the gun out of the way.
T69 Another version of events supported by the evidence-and apparently accepted by the jury-is that Serbeck racked his gun аt home and put the safety on before putting the gun in his SUV. When Campos stopped Serbeck, Campos got out of the SUV with his gun drawn, and Serbeck followed suit. Soon, however, Serbeck put his gun down on the *1178 ground, and Campos shot him as he was rising up.
T70 The State's medical expert testified that Serbeck's wounds were consistent with his being shot while bent over or crouching. The expert acknowledged, however, that he could not say whether Serbeck was in fact crouching. Other cireumstantial evidence presented at trial also could be read to support either version of events: the bullet in the chamber of Serbeck's gun, the positioning of the gun on the ground, the engaged safety mechanism, and the blood on the gun.
T 71 In other words, "the conclusion of the jurors is based on their weighing conflicting evidence or evidence susceptible of differing interpretations." Troy,
T 72 Viewing the cumulative effect of trial counsel's errors that we have identified, our confidence in the verdict for the attempted murder charge is undermined. We therefore reverse the conviction for attempted murders 8
II. Expert Testimony Relevant to the Aggravated Assault Charge
173 Campos challenges his aggravated assault conviction by contending that the trial court abused its discretion when it excluded expert testimony relevant to self-defense.
T 74 The State moved to exclude Campos's expert. The expert intended to testify that if a police officer were in Campos's situation, having shot one individual and facing a see-ond individual who may or may not be armed, standard police safety training would teach the officer to hold his gun on the second individual until the seene was secure. Campos intended to offer this evidence in support of his argument that he acted in self-defense, and that his actions were reasonable, when he pointed his gun at Serbeck's neighbor. The trial court granted the State's motion on several grounds, including that the expert testimony would not be helpful to the jury.
175 Rule 702 of the Utah Rules of Evidence allows for the admission of expert testimony "if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." Utah R. Evid. 702
9
Thus, "[uJlnder rule 702, the question that must be posed prior to the admission of any expert evidence is whether, on balance, the evidence will be helpful to the finder of fact." State v. Larsen,
T76 To succeed on a self-defense claim, Campos would have to establish that he "reasonably believe[d] that force [was] necessary to defend himself or a third person against [Serbeck's neighbor's] imminent use of unlawful force." See Utah Code Ann. § 76-2-402(1) (LexisNexis 2008). One factor the jury could consider in determining the reasonableness of Campos's belief was "the nature of the danger" Campos allegedly faced. See id. § 76-2-402(5)(a). Although the average juror would not have had direct experience with the situation Campos faced, the average Utah juror arguably has the requisite knowledge of handguns to assess the danger of the situation and the reasonableness of Campos's belief that force was necessary to defend himself. Furthermore, testimony about police standards had at least some potential to confuse the issues when the jury was tasked to decide the reasonableness of Campos's belief from the standpoint of a reasonable civilian (not a peace officer) under the circumstances. Although the trial court was not required to exclude the expert testimony on the basis that it was not helpful, we cannot say that doing so exceeded the limits of reasonability. 10
III, Lesser Included Offense Jury Instruction for Threatening with a Dangerous Weapon
177 Campos contends that the trial court erred by denying his request for an instruction on threatening with a dangerous weapon as a lesser included offense for his aggravated assault charge. The State responds that the evidence does not provide a rational basis for a verdict acquitting Campos оf aggravated assault and convicting him of the lesser included offense. 11
178 To obtain an instruction on a lesser included offense, "a defendant must show (1) that the charged offense and the lesser included offense have overlapping statutory elements and (2) that the evidence 'provides a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense."" State v. Powell,
179 In undertaking this analysis, we "must only decide whether there is a sufficient quantum of evidence presented to justify sending the question to the jury." Baker,
180 Campos discusses the evidence adduced at trial, arguing that it is ambiguous. Yet he does not apply the evidence to the statutory elements of aggravated assault and the lesser included offense. Without doing so, he cannot demonstrate that the jury reasonably could have acquitted him of aggravated assault and convicted him of threatening with a dangerous weapon. It is not enough simply that the evidence be susceptible to alternative interpretations in the general sense. Rather, the evidence must be "susceptible to alternative interpretations" with respect to specific elements, which "would permit acquittal of the greater offense and conviction of the lesser." See Baker,
IV. Issue Related to the Attempted Murder Charge That May Arise on Remand
{81 Having reversed Campos's conviction for attempted murder, we need not resolve his remaining claims of error relevant to that offense. However, we address one related issue that the parties have fully briefed and that is likely to arise on remand. See generally State v. James,
1 82 Campos contends that the trial court improperly excluded character evidence. Campos argues that he should have been allowed to cross-examine Serbeck about specific instances that would have exhibited Ser-beek's character for untruthfulness and violence. Campos also argues that a character witness who testified at trial should have been allowed to testify about specific instance-es that would have exhibited Serbeck's character for violence. These specific instances included multiple lies and instances of Ser-beek's brandishing his handguns and making threats. 12
T 83 The trial court ruled that evidence of Serbeck's propensity for violence could be admitted in the form of opinion and reputation testimony but that specific instances would be irrelevant and thus inadmissible. The court also allowed character witnesses to offer opinion and reputation testimony as to Serbeck's character for untruthfulness. But the court appears to have excluded inquiry into any specific instances probative of Ser-beek's character for untruthfulness, even on cross-examination of Serbeck.
184 Campos argues that evidence of Serbeck's prior lies and violent actions should be admitted under rule 404(b) of the Utah Rules of Evidence. "Evidence of a crime, wrong, or other act is not admissible to prove a person's charactеr in order to show that on a particular occasion the person acted in conformity with the character." Utah R. Evid. 404(b)(1). By its terms, this general rule does not apply when evidence of a crime, wrong, or other act is used for some
*1181
purpose other than proving that "the person acted in conformity with the character." See id. Therefore, "[tlhis evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Id. R. 404(b)(2). For such evidence to be admissible, the trial court must serupulously examine the evidence to determine "whether it is genuinely being offered for a proper, non-character purpose," State v. Verde,
185 On appeal, Campos fails to explain how evidence of Serbeck's prior lies and violent actions serves a non-character purpose. Indeed, in arguing that such evidence is relevant, Campos emphasizes that the evidence is "highly probative" beсause it would establish Serbeck's "propensity for violence" and make it more probable that Serbeck lied on the witness stand. To establish that specific evidence is admissible under rule 404(b), Campos must show that the evidence "has independent relevance that does not depend on ... propensity." See R. Collin Mangrum & Dee Benson, Mangrum & Benson on Utah Evidence 189-90 (2012) (internal quotation marks omitted); see also Decorso,
1 86 Because Campos has not established that the evidence was offered for a non-character purpose, its admission is governed by rules 404(a), 405, and 608 of the Utah Rules of Evidence. . "Rule 404(2a) of the Utah Rules of Evidence acts as a general bar to '[elvidence of a person's character ... for the purpose of proving action in conformity therewith on a particular occasion. " State v. Leber,
187 "Onee character evidence is deemed admissible under rule 404(a), the methods of proving character are limited by rule 405." Leber,
88 Because a defendant's or victim's violent сharacter is "pertinent" to self-defense under rule 404(a) but not "at issue" under rule 405(b), see Leber,
$89 In the present case, therefore, Campos was free to present witnesses to offer reputation or opinion testimony as to Serbeck's character for violence. But, as the trial court correctly noted, Campos could not use his character witnesses to provide testimony of specific instances showing Serbeck's character for violence. Nor could Campos cross-examine Serbeck about such specific instances, because Serbeck did not testify as a character witness concerning his own character for peacefulness. Cf. Leber,
(90 Another exception to rule 404(а)'s general bar to character evidence appears in rule 608, which allows evidence of a witness's character for untruthfulness and, when a witness's character for truthfulness has been attacked, evidence of a witness's character for truthfulness. Utah R. Evid. 404(a)(8); id. R. 608. However, like evidence of a defendant's or victim's "pertinent trait," see id. R. 404(a), evidence of a witness's character for truthfulness or untruthfulness is generally limited to "testimony about the witness's reputation" and "testimony in the form of an opinion," id. R. 608(a). See also State v. Rimmasch,
191 In the present case, therefore, Campos was appropriately allowed to present character witnesses to give opinion and reputation testimony about Serbeck's untruthfulness, without inquiring into specific instances on direct examination. On cross-examination of Serbeck, rule 608 would allow Campos to inquire into specific instances probative of Serbeck's character for untruthfulness. But the trial court has discretion to allow or disallow such cross-examination. See id. R. 608(b). If the issue arises again in a new trial, the court should make this determination based on relevance and the principles of rule 408. See Gomez,
CONCLUSION
192 The trial court did not abuse its discretion in excluding Campos's proposed expert testimony, nor did it err in refusing a lesser included offense instruction on threatening with a dangerous weapon. Campos's trial counsel did not provide deficient assistance by failing to request a jury instruction *1183 on extreme emotional distress. However, Campos's trial counsel provided constitutionally deficient assistance by failing to object to the inaccurate verdict form and by failing to object or request a curative instruction when the prosecutor engaged in misconduct in closing arguments. The cumulative effect of the deficient performance undermines our confidеnce that Campos received a fair trial, and absent counsel's errors, there is a reasonable probability of a different result.
193 We therefore reverse Campos's conviction for attempted murder with injury but affirm the conviction for aggravated assault. We remand the case for further proceedings. 13
Notes
. See generally Utah Code Ann. §§ 76-4-101, - 102(1)(c)(i) (LexisNexis 2012) (attempt); id. § 76-5-103 (2008) (aggravated assault); § 76-5-203(2)(a), (3)(a) (2012) (murder).
. We also grant the State's Motion to Strike Defendant's Pro Se Motion for Remand and Oral Arguments Pursuant to Rule 23B.
. "When reviewing a jury verdict, we examine the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict, and we recite the facts accordingly." State v. Kruger,
. The jury also convicted Campos of one count of aggravated assault against Serbeck, but the trial court later merged this conviction with the attempted murder conviction.
. Campos also asserts the imperfect self-defense and prosecutorial misconduct claims under the plain error doctrine. See State v. Dunn,
. Although the supreme court was applying an earlier version of the statute when it made this statemеnt, we see nothing in the language of the amended statute that would suggest a departure from this precedent defining extreme emotional distress.
. The State emphasized this evidence to the jury, referring to Campos's "rage" over a dozen times in closing arguments and asking, at one point, "Who in their right mind would do such a thing unless you are just blinded by rage?"
. Our ruling is limited to the conviction for attempted murder. Imperfect self-defense is available only as a defense to a charge of murder or attempted murder. See Utah Code Ann. § 76-5-203(4)(a) (LexisNexis 2012). Although the prose-cutorial misconduct we have identified could possibly be construed broadly to relate to the verdict on the aggravated assault directed toward Serbeck's neighbor, the prosecutorial misconduct is not sufficiently prejudicial in this case to warrant reversal without the added deficient performance related to the verdict form for the attempted murder charge.
. The Utah Rules of Evidence were amended in 2011. Because the changes were stylistic only, throughout this opinion we cite the current version of the rules for convenience. See Utah R. Evid. 702, 2011 advisory committee note.
. Because we affirm on this point, we need not address the other grounds of the trial court's ruling to exclude the expert testimony.
. Campos asserts that threatening with a dangerous weapon is also a lesser included offense of attempted murder. However, Campos has cited no authority for this claim and has made no attempt to analyze the statutory elements to support it. Therefore, Campos has not carried his burden on appeal of demonstrating that he was entitled to an instruction on this point. See Utah R.App. P. 24(a)(9); State v. Thomas,
. The specific instances demonstrating a violent character that Campos sought to admit included allegations of Serbeck having "a habit of always carrying two loaded pistols under his arms" and brandishing these weapons on three occasions. Two of these instances occurred in a public restaurant. The third occurred when Serbeck threatened a woman who had just ended a relationship with him; as she was leaving, he opened his jacket, pointed to his firearms, and moved his index finger to his lips,. In connection with a motion for new trial, Campos also proffered allegations that Serbeck made death threats against multiple women.
The specific instances demonstrating an untruthful character that Campos sought to admit included allegedly impersonating a U.S. marshal on two occasions and lying to women that he had worked as a mafia hit man, that he had been diagnosed with terminal cancer, and that he owned the company he worked for.
. To the extent that we have not explicitly addressed other issues raised by Campos, we have determined that we need not address them given our resolution of this appeal. See State v. Carter,