Date: 03-13-2014

Case Style: State of Utah v. Jason Kyle Clark

Case Number: 2014 UT 56

Judge: Christiansen

Court: The Utah Court of Appeals on appeal from the Third District Court, Salt Lake Department

Plaintiff's Attorney: Sean D. Reyes and Christopher D. Ballard, Attorneys for Appellee

Defendant's Attorney: Lori J. Seppi, Attorney for Appellant

Description: ¶1 Defendant Jason Kyle Clark appeals his first degree felony
convictions for various counts of aggravated murder, attempted
aggravated murder, aggravated burglary, aggravated kidnapping,
and aggravated robbery, and his class B misdemeanor conviction
for aggravated cruelty to animals. We affirm on all counts.
State v. Clark
20110206-CA 2 2014 UT App 56
BACKGROUND
¶2 “On appeal from a jury verdict, we view the evidence and
all reasonable inferences in a light most favorable to that verdict
and recite the facts accordingly.” State v. Pinder, 2005 UT 15, ¶ 2,
114 P.3d 551 (citation and internal quotation marks omitted).
¶3 On April 29, 2007, Daniel Blankenship arrived at the Salt
Lake City home of A.S. to settle a drug-related dispute.
Blankenship was accompanied by two men, Defendant and an
unidentified third man. Blankenship entered the home first and
talked with A.S. alone while the other men waited outside.
Defendant and the third man entered the home with guns drawn
shortly thereafter.
¶4 Defendant proceeded to question A.S. about a confrontation
that had occurred a few days earlier between the stepson of
Defendant’s girlfriend and two of A.S.’s associates, D.L. and K.K.
During the questioning, Defendant yelled at A.S. and struck her on
the top of her head with the butt of his gun, and the third man
burned A.S. several times with a cigarette and forced her “to take
a hit off” a “crack pipe.” When A.S.’s cell phone rang in another
room, one of the men retrieved the phone and A.S. never got it
back.
¶5 After some time, D.L. and K.K. arrived at A.S.’s home and
knocked on the door. The men instructed A.S. to open the door to
allow D.L. and K.K. in. When D.L. and K.K. entered the home, the
men took D.L.’s cell phone, which she also never got back. The
third man directed D.L. to sit next to A.S. on a couch and directed
K.K. to sit in a recliner near the door. The third man then began
questioning D.L. and K.K. about the prior confrontation with the
stepson of Defendant’s girlfriend. At one point, the men instructed
K.K. to put a towel in his mouth. When K.K. refused, a struggle
ensued between K.K., Defendant, and the third man. During the
State v. Clark
20110206-CA 3 2014 UT App 56
struggle, Defendant shot K.K. in the head, killing him. After
Defendant shot K.K., both Blankenship and the third man ran out
the front door. Before fleeing the scene, Defendant shot A.S. eight
times. He then turned the gun on D.L., shooting her seven times.
Both A.S. and D.L. survived. Defendant also shot and killed A.S.’s
service dog during the incident. After the three men left, A.S. and
D.L. managed to exit through the back of the house and call for
help. We hereinafter refer to these events as the Salt Lake shooting.
¶6 Both A.S. and D.L. later identified Defendant and
Blankenship in separate photo lineups conducted by the police. The
police arrested Defendant a few days later after a traffic stop.
Defendant was a passenger in the front seat of the stopped vehicle.
The police found a black semi-automatic .40-caliber Beretta
handgun on the front passenger floor of the vehicle. The police also
discovered a holster inside Defendant’s front waistband. At trial,
the State presented evidence from a firearms-identification expert,
David Wakefield, linking the Beretta found with Defendant at the
time of his arrest to the weapon used in the Salt Lake shooting. The
State’s evidence also linked the Beretta to a shooting incident
involving Defendant that had occurred on March 12, 2007, in West
Valley City (the West Valley shooting)—about six weeks before the
Salt Lake shooting.
¶7 The State charged Defendant with eight first degree felonies
and one class B misdemeanor. Prior to trial, the trial court denied
Defendant’s motion to exclude Wakefield’s firearm-identification
testimony; granted the State’s motion to exclude Defendant’s
designated firearms-identification expert, David Lamagna, from
testifying; granted the State’s motion to admit evidence of
Defendant’s role in the West Valley shooting pursuant to rule
404(b) of the Utah Rules of Evidence; and denied Defendant’s
motion to suppress the eyewitness-identification testimony of both
A.S. and D.L. At the close of the trial, a jury convicted Defendant
on all counts. The trial court sentenced Defendant to indeterminate
State v. Clark
1. The trial court sentenced Defendant as follows: count 1,
aggravated murder, twenty years to life; counts 2 and 3, attempted
aggravated murder, five years to life on each count; count 4,
aggravated burglary, five years to life; counts 5, 6, and 7,
aggravated kidnapping, fifteen years to life on each count; count 8,
aggravated robbery, five years to life; and count 9, aggravated
cruelty to animals, 180 days. The court ordered the sentences for
counts 1 through 7 to run consecutively to each other and count 8
to run concurrently to count 7. The court suspended the sentence
for count 9.
20110206-CA 4 2014 UT App 56
prison terms totaling eighty years to life.1 Defendant timely
appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 Defendant raises six principal claims on appeal. First,
Defendant argues that the trial court erred by refusing to exclude
or limit the State’s firearm-identification expert testimony. In the
alternative, he argues that the court erred by excluding the firearmidentification
testimony of Defendant’s expert witness. “We review
a trial court’s decision to admit expert testimony for an abuse of
discretion and find error only if no reasonable person would take
the view the trial court adopted.” State v. Maestas, 2012 UT 46,
¶ 122, 299 P.3d 892.
¶9 Next, Defendant contends that the trial court improperly
admitted other-acts evidence pursuant to rule 404(b) of the Utah
Rules of Evidence. The State sought to introduce evidence that the
handgun Defendant had used in the West Valley shooting was the
same weapon used in the Salt Lake shooting. The court allowed the
State to introduce this evidence to prove Defendant’s identity in the
Salt Lake shooting. “A trial court’s admission of prior bad acts
evidence is reviewed for abuse of discretion, but the evidence must
be scrupulously examined by trial judges in the proper exercise of
State v. Clark
20110206-CA 5 2014 UT App 56
that discretion.” State v. Verde, 2012 UT 60, ¶ 13, 296 P.3d 673
(citation and internal quotation marks omitted).
¶10 Third, Defendant argues that the State prosecutor
committed misconduct during his closing rebuttal. “We review a
trial court’s handling of claimed prosecutorial misconduct for an
abuse of discretion.” State v. King, 2010 UT App 396, ¶ 13, 248 P.3d
984. Where timely objections to particular statements were not
made below, Defendant must establish either plain error or
ineffective assistance of counsel to merit reversal. See State v. Lee,
2006 UT 5, ¶ 24, 128 P.3d 1179.
¶11 Fourth, Defendant challenges the trial court’s denial of his
motion to suppress A.S.’s and D.L.’s eyewitness identifications of
Defendant. When reviewing a trial court’s decision to admit
eyewitness identification evidence, we “defer to the trial court’s
fact-finding role by viewing the facts in the light most favorable to
the trial court’s decision to admit and by reversing its factual
findings only if they are against the clear weight of the evidence.”
State v. Ramirez, 817 P.2d 774, 782 (Utah 1991). The trial court’s
ultimate determination of “whether the[] facts are sufficient to
demonstrate reliability” is a legal conclusion that we review for
correctness. Id.
¶12 Defendant next argues that the trial court erred by failing to
properly instruct the jury on accomplice liability and by providing
flawed instructions on the aggravated robbery and aggravated
cruelty to animals counts. “Claims of erroneous jury instructions
present questions of law that we review for correctness.” State v.
Jeffs, 2010 UT 49, ¶ 16, 243 P.3d 1250. We therefore review “the
instructions given to the jury without deference to the trial court.”
Id.
¶13 Finally, Defendant argues that the cumulative effect of the
trial court’s alleged errors merits reversal of his convictions. Under
the cumulative error doctrine, we must first “apply the standard of
review applicable to each underlying claim of error” to determine
State v. Clark
20110206-CA 6 2014 UT App 56
if error occurred. Radman v. Flanders Corp., 2007 UT App 351, ¶ 4,
172 P.3d 668. We will reverse a conviction only if the cumulative
effect of all identified and assumed errors undermines our
confidence in the essential fairness of the defendant’s trial. State v.
Dunn, 850 P.2d 1201, 1229 (Utah 1993).
ANALYSIS
I. Firearm-Identification Expert Testimony
¶14 Defendant argued before the trial court that the firearmidentification
testimony offered by the State’s expert, Wakefield,
was unreliable and therefore inadmissible as expert testimony. See
Utah R. Evid. 702(b)(2) (“Scientific, technical, or other specialized
knowledge may serve as the basis for expert testimony only if there
is a threshold showing that the principles or methods that are
underlying in the testimony . . . are reliable . . . .”). In support of his
challenge to the reliability of Wakefield’s testimony, Defendant
sought to introduce Lamagna’s testimony criticizing the reliability
of firearm identification. After an evidentiary hearing, the trial
court determined that “Lamagna lack[ed] the practical experience
and training necessary to be qualified as an expert in the discipline
of toolmark and firearms examination.” Conversely, the court
determined that the “State ha[d] made the threshold showing that
the principles underlying forensic toolmarks examination are
reliable and are based upon sufficient facts and data” and that “in
the instant case these facts, data, and principles were reliably
applied by Mr. Wakefield.” Accordingly, the trial court allowed
Wakefield’s testimony and excluded Lamagna’s.
¶15 On appeal, Defendant maintains that the trial court’s
decision to allow Wakefield to testify was an abuse of its discretion.
Defendant also argues that the court should have, at the very least,
prohibited Wakefield from testifying that he could identify the
firearm with absolute certainty. Alternatively, Defendant asserts
that the trial court should have admitted Lamagna’s counter
State v. Clark
2. We note that in response to a pretrial suppression motion filed
by Defendant, the trial court held an evidentiary hearing to
determine the reliability of A.S.’s and D.L’s identifications of
Defendant. The trial court concluded that based “upon a careful
(continued...)
20110206-CA 7 2014 UT App 56
testimony. However, assuming without deciding that the trial court
abused its discretion, we conclude that any error in the admission
of Wakefield’s testimony or the exclusion of Lamagna’s testimony
was harmless.
¶16 “An error is harmful if it is such that absent the error, there
is a sufficiently high likelihood of a different outcome,
undermining our confidence in the result.” State v. Honie, 2002 UT
4, ¶ 54, 57 P.3d 977. Here, neither the exclusion of Wakefield’s
testimony nor the admission of Lamagna’s testimony could have
significantly altered the ultimate outcome of the case. The State
introduced Wakefield’s testimony to establish that the Beretta
handgun found in Defendant’s possession upon his arrest was the
weapon used in both the Salt Lake shooting and the West Valley
shooting. The purpose of this evidence was to connect Defendant
to the Salt Lake shooting and its attendant crimes, thus rebutting
Defendant’s claim that he was not involved. However, this was not
the only evidence presented by the State linking Defendant to the
Salt Lake shooting. The State presented additional direct
evidence at trial that established the same facts. Three
eyewitnesses—Blankenship, A.S., and D.L.—testified that
Defendant was present at the Salt Lake shooting. Both Blankenship
and D.L. testified that Defendant shot K.K. in the head. D.L.
testified that Defendant shot her after shooting and killing K.K.
Blankenship testified that Defendant later admitted shooting A.S.
and D.L., saying that he killed “the women as well.” And A.S.
testified that Defendant was present at the crime scene with a
handgun. This compelling eyewitness testimony would have been
sufficient for the jury to convict Defendant on all counts, regardless
of whether any expert, including Wakefield or Lamagna, had
testified as to the firearms-identification evidence.2
State v. Clark
2. (...continued)
assessment of all the facts presented and the controlling case law,
. . . the identifications provided by [A.S. and D.L. were] sufficiently
reliable to be admitted at Defendant’s trial.” As discussed infra
¶¶ 38–48, we affirm that ruling.
20110206-CA 8 2014 UT App 56
¶17 Furthermore, during his trial, Defendant never disputed that
the Beretta handgun found with him upon his arrest was the same
gun used in the Salt Lake shooting and the West Valley shooting.
Rather, his defense hinged on his claim that he was not present at
the Salt Lake shooting and that Blankenship was the true owner of
the Beretta. Defendant claimed that he possessed the Beretta only
intermittently as collateral for loans he made to Blankenship, which
explained why he had it in his possession on the day of his arrest.
Under cross-examination, Defendant admitted that he used the
Beretta in the West Valley shooting and that it was the same gun
found in his possession upon his arrest. Finally, it is undisputed
that the ammunition used in both the Salt Lake and West Valley
shootings—.40-caliber Smith & Wesson bullets manufactured by
Winchester—was identical to the ammunition loaded in the Beretta
found in Defendant’s possession upon his arrest. Thus, the firearmidentification
testimony, though helpful in corroborating the
witnesses’ testimony, was negligible in the context of all of the
evidence presented at trial.
¶18 This is particularly so because defense counsel’s crossexamination
of Wakefield sought to undermine Wakefield’s
testimony and covered many, if not all, of the same points that
Lamagna would have made had he testified at trial. Cf. State v.
Hales, 2007 UT 14, ¶ 80, 152 P.3d 321 (stating that “in many
circumstances defense attorneys may reasonably decide to rebut an
expert’s testimony without hiring a competing expert”). Indeed, as
outlined in Defendant’s appellate brief, defense counsel
“challenged Wakefield’s testimony at length and left the jury with
reasons to doubt its conclusions.” Defense counsel cross-examined
Wakefield regarding the subjectivity and fallibility of firearm
identification, the technology and testing methods employed by
State v. Clark
3. Defendant also challenges Wakefield’s testimony under rule 403
of the Utah Rules of Evidence, arguing that its probative value was
substantially outweighed by the danger of unfair prejudice and
misleading the jury. See Utah R. Evid. 403 (“The court may exclude
relevant evidence if its probative value is substantially outweighed
by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.”). However,
Defendant’s argument on this point is unpersuasive and does not
merit further discussion in light of our resolution of his primary
challenge to the firearm-identification evidence. See Carter v. State,
2012 UT 69, ¶ 16 n.7, 289 P.3d 542.
20110206-CA 9 2014 UT App 56
Wakefield, the fact that Wakefield’s conclusions were not reviewed
by a second examiner, the nature of the professional organization
to which Wakefield belonged, the existence of recent studies
questioning the reliability of firearm-identification analysis, and the
fact that some federal judges have excluded firearm-identification
evidence based on supposed unreliability. Additionally, Lamagna
could not have directly contradicted Wakefield’s opinion that the
Beretta handgun was the murder weapon because Lamagna did
not actually examine the evidence in this case. Consequently,
calling Lamagna to testify could have been more harmful than
helpful because, absent any knowledge gained through his own
examination of the evidence, Lamagna would have likely had to
concede that the Beretta could have been the murder weapon.
¶19 Thus, Wakefield’s testimony was largely cumulative with
the evidence offered at trial, and any weaknesses in Wakefield’s
opinion that might have been addressed by Lamagna’s own
testimony were adequately covered during crossexamination—
albeit not with counter expert testimony.
Accordingly, even if the trial court’s rulings on the expert
testimony were an abuse of its discretion, an issue we do not reach,
any resulting error would have been harmless, in that the outcome
of the trial would not have been affected.3 See Honie, 2002 UT 4,
¶ 54.
State v. Clark
20110206-CA 10 2014 UT App 56
II. 404(b) Evidence
¶20 Defendant next challenges the trial court’s admission of
evidence of Defendant’s involvement in the West Valley shooting,
arguing that this “bad acts” evidence unfairly prejudiced his
defense. A party may not introduce at trial “[e]vidence of a crime,
wrong, or other act” if that evidence is used “to prove a person’s
character in order to show that on a particular occasion the person
acted in conformity with the character.” Utah R. Evid. 404(b)(1).
However, this rule allows such evidence to be admitted “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). Thus, evidence is admissible under rule
404(b) if it is offered for a relevant noncharacter purpose, relevant
to that purpose, and “does not pose a danger for unfair prejudice
that substantially outweighs its probative value.” State v. Killpack,
2008 UT 49, ¶ 45, 191 P.3d 17 (citation and internal quotation marks
omitted); see also Utah R. Evid. 403. “In determining whether a trial
court has exceeded its discretion in admitting evidence under rule
404(b), ‘[w]e review the record to determine whether the admission
of other bad acts evidence was scrupulously examined by the trial
judge in the proper exercise of that discretion.’” State v. Losee, 2012
UT App 213, ¶ 16, 283 P.3d 1055 (alteration in original) (quoting
State v. Nelson-Waggoner, 2000 UT 59, ¶ 16, 6 P.3d 1120).
¶21 Before trial, the State moved to admit evidence pursuant to
rule 404(b) relating to Defendant’s involvement in the West Valley
shooting. The trial court held an evidentiary hearing for the
purpose of hearing the evidence related to Defendant’s role in the
West Valley shooting. The court later heard oral arguments and
issued a written decision granting the State’s motion. The court
ruled that evidence of the prior shooting helped to “establish that
the identity of the person who caused the death of [K.K.] is
Defendant.” The court reasoned that if “it were shown that on
March 12, 2007, Defendant shot [the victim in the West Valley
shooting] with the same firearm that was used to shoot [K.K.] on
April 29, 2007, then this fact would help to establish that Defendant
State v. Clark
20110206-CA 11 2014 UT App 56
was the person who shot and killed [K.K.].” Thus, the court
concluded that the West Valley shooting evidence would be
relevant and offered for the proper noncharacter purpose of
identification.
¶22 Based upon Defendant’s assertion that he was not present
at the Salt Lake shooting, identity of the perpetrator was clearly at
issue in this case. Accordingly, the details of the West Valley
shooting were relevant to show both that the Beretta handgun
belonged to Defendant and that he was present at the Salt Lake
shooting. Cf. Salt Lake City v. Alires, 2000 UT App 244, ¶¶ 10–15, 9
P.3d 769 (holding that where the “facts suggest a clear factual link
between the two incidents,” evidence of a defendant’s earlier visit
and disturbance at a victim’s apartment was relevant and
admissible to prove the defendant’s identity in a telephone
harassment prosecution because “[i]dentity of the caller was clearly
at issue in [the] case”). Evidence that Defendant was carrying the
Beretta handgun when he arrived at the scene of the West Valley
shooting, that he displayed a familiarity with the handgun’s
operation, and that he actually used the handgun in that incident
all tend to show that the handgun was actually his. Indeed, the
State argued that the 404(b) evidence was necessary to rebut
“[D]efendant’s claim that he bought the gun [from Blankenship]
after the [Salt Lake] shooting.” The evidence also helped rebut
Defendant’s explanation that he was merely keeping the Beretta as
collateral for a loan he had made to Blankenship. Thus, we agree
with the trial court’s assessment that evidence of Defendant’s
involvement in the West Valley shooting was both relevant and
offered for a proper noncharacter purpose—identification of
Defendant as the person who used the same firearm to commit two
shootings.
¶23 In evaluating whether the 404(b) evidence posed a danger
of unfair prejudice that substantially outweighed its probative
value, the trial court considered the following six factors which
have become known as the Shickles factors: (1) the strength of the
evidence as to the commission of the other crime, (2) the similarities
State v. Clark
4. Approximately two years after the trial court evaluated the
State’s 404(b) motion using the Shickles factors, our supreme court
in State v. Verde, 2012 UT 60, 296 P.3d 673, articulated an analytical
framework under which a trial court should assess the probative
value of other acts evidence when such evidence logically falls
within the “doctrine of chances.” Id. ¶¶ 57–61. “This doctrine
defines circumstances where prior bad acts can properly be used to
rebut a charge of fabrication. It is a theory of logical relevance that
rests on the objective improbability of the same rare misfortune
befalling one individual over and over.” Id. ¶ 47 (citation and
internal quotation marks omitted); see also State v. Bedell, 2014 UT
1, ¶ 24 n.24. While recognizing that the trial court did not have the
benefit of Verde when it ruled on the State’s 404(b) motion, we note
that when “addressing the probative value of the other acts
evidence in cases not governed by the doctrine of chances,” as is the
case here, “the Shickles factors remain relevant.” State v. Labrum,
2014 UT App 5, ¶ 28 (emphasis added). “[T]he trial court should
carefully weigh the tendency toward proper and improper
inferences from the other acts evidence in the context of the
particular case and consider whatever factors are relevant to that
analysis as it ‘scrupulously examine[s]’ the evidence.” Id. (second
alteration in original) (quoting Verde, 2012 UT 60, ¶ 13). In this case,
even if additional factors would have been helpful to the trial
court’s analysis, the court’s thorough and convincing application
of the Shickles factors supports the court’s conclusion that the West
Valley shooting evidence did not pose a danger of unfair prejudice
that substantially outweighed its probative value.
20110206-CA 12 2014 UT App 56
between the crimes, (3) the interval of time that has elapsed
between the crimes, (4) the need for the evidence, (5) the efficacy of
alternative proof, (6) and the degree to which the evidence
probably will rouse the jury to overmastering hostility. State v.
Decorso, 1999 UT 57, ¶ 29, 993 P.2d 837 (citing State v. Shickles, 760
P.2d 291, 295–96 (Utah 1988), abrogated on other grounds by State v.
Doporto, 935 P.2d 484 (Utah 1997)).4
State v. Clark
5. At trial, Defendant admitted to using the Beretta in the West
Valley shooting, both on direct and cross-examination. He claimed
that he was acting in self-defense.
20110206-CA 13 2014 UT App 56
¶24 The trial court’s analysis of the Shickles factors is both
thorough and convincing. In analyzing the first factor, the court
determined that the strength of the 404(b) evidence was
“sufficiently high to warrant admission” because the State’s
eyewitness “provided credible testimony that it was Defendant
who [went to the scene of the West Valley shooting], that he
brandished a gun, that he exited the home, and that he shot [the
West Valley victim].”5 Under the third factor, the court observed
that “the interval of time between the two shooting[s] was short,
i.e., 42 day[s].” See Nelson-Waggoner, 2000 UT 59, ¶ 29 (stating that
the time between the defendant’s prior offenses and the charged
conduct “was a brief ten weeks” (emphasis added)); Decorso, 1999
UT 57, ¶ 32 (describing a seven-month interval as “relatively
short”). With respect to the fourth and fifth factors, the trial court
characterized the need for the evidence as either “moderate” or
higher depending on how the credibility of the eyewitness
testimony unfolded at trial. As for the final factor, the trial court
concluded that it was “unlikely that evidence of the prior shooting
incident will rouse the jury to overmastering hostility toward
Defendant and cause jurors to punish him simply because he was
involved in another shooting,” particularly where the events of the
Salt Lake shooting were more “egregious” than those of the West
Valley shooting.
¶25 The trial court’s analysis of the second factor—the
similarities between the crimes—is reasonable as well. The trial
court stated that
although there are no “signature-like” aspects
involved in the two shootings, they are sufficiently
similar to warrant admission. In the present case
Defendant entered the home of [A.S.] and was angry
State v. Clark
20110206-CA 14 2014 UT App 56
about a friend of his being hurt. He brandished a
gun, made threats, shot [K.K.], shot [A.S.] and [D.L.],
and then fled the scene. In the prior shooting, [the
eyewitness] testified that Defendant entered her
home, an altercation erupted between Defendant and
others, he pulled out a gun, and made threats. Once
Defendant was outside, he shot [the victim] and then
fled the scene.
We acknowledge that evidence of the similarity between crimes
“may realistically be expected to convey a simultaneous inference
that the person behaved improperly in the past and might be likely
to do so again in the future.” See State v. Verde, 2012 UT 60, ¶ 16, 296
P.3d 673. Here, however, this factor demonstrates that the
probative value of the evidence outweighs the possible unfairly
prejudicial effect from its admission and also further establishes the
noncharacter purpose—identity—for which the evidence was
offered. See Decorso, 1999 UT 57, ¶ 27 (stating that “the evidence
was offered for a proper, noncharacter purpose—i.e., to establish
the identity of [the] killer,” that “[i]dentity was the crux of [the]
case,” and that there were “numerous similarities between the
crimes”).
¶26 Based on our review of the record, it is clear that the trial
court “scrupulously examined” the 404(b) evidence in the “proper
exercise of [its] discretion.” See Verde, 2012 UT 60, ¶ 13 (citation and
internal quotation marks omitted). In addition to holding an
evidentiary hearing and affording the parties an opportunity to be
heard, the court stated that it had “thoroughly reviewed the
parties’ memoranda, the relevant case law, and all applicable rules
and statutory provisions” relating to the 404(b) evidence. The trial
court “carefully considered the evidence presented” and “the oral
arguments provided by counsel” prior to issuing its detailed
written decision addressing each factor of the 404(b) analyis. In
other words, it is evident that the trial court “undertook the level
of thoughtful consideration required under rule 404(b).” See State
v. Losee, 2012 UT App 213, ¶ 26, 283 P.3d 1055. Furthermore, the
State v. Clark
6. Our holding on this point does not conflict with our conclusion
that the trial court’s rulings on the firearm-identification expert
testimony were harmless. We reached that conclusion by
evaluating the entirety of the trial proceedings and all evidence
actually presented to the jury. Review in this manner is necessary
to assess whether the trial court’s rulings, assuming without
deciding they were error, resulted in a “sufficiently high likelihood
of a different outcome” of Defendant’s trial. See Honie, 2002 UT 4,
¶ 54. By contrast, we review the trial court’s 404(b) ruling for an
abuse of discretion based on the circumstances in place at the time
the court so ruled—which in this case was prior to trial, before any
evidence was presented to the jury.
20110206-CA 15 2014 UT App 56
conclusion it reached was reasonable. Therefore, we conclude that
the trial court did not abuse its discretion in granting the State’s
motion to admit the 404(b) evidence.6
III. Prosecutorial Misconduct
¶27 Defendant next argues that the prosecutor engaged in
misconduct during his rebuttal to defense counsel’s closing
argument. Defendant identifies numerous comments made by the
prosecutor that, according to Defendant, merit reversal of
Defendant’s convictions.
¶28 As an initial matter, the parties dispute whether Defendant
adequately preserved his claim of prosecutorial misconduct for
appeal. “[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.” 438 Main St. v. Easy Heat, Inc.,
2004 UT 72, ¶ 51, 99 P.3d 801 (alterations in original) (citation and
internal quotation marks omitted). After the prosecutor finished his
rebuttal, defense counsel requested that the trial judge declare a
mistrial on the ground that the prosecutor improperly argued that
defense counsel and Defendant did not believe their own defense.
The prosecutor made this comment in the context of discussing
State v. Clark
20110206-CA 16 2014 UT App 56
several out-of-court witness statements introduced by Defendant.
Defendant argued that these statements supported his claim that
he was not present at the Salt Lake shooting. After reviewing the
transcript, the court denied Defendant’s motion. Our review of the
record reveals no other objections to the prosecutor’s closing
argument or rebuttal. Thus, of the various comments that
Defendant criticizes on appeal, only his objection to this comment
is preserved for review. Nevertheless, Defendant argues that the
remaining comments should be reviewed for plain error or under
a theory of ineffective assistance of counsel.
¶29 A prosecutor’s “remarks constitute misconduct meriting
reversal if they call to the attention of the jurors matters they would
not be justified in considering in determining their verdict and . . .
the error is substantial and prejudicial such that there is a
reasonable likelihood that in its absence, there would have been a
more favorable result for the defendant.” State v. Maestas, 2012 UT
46, ¶ 159, 299 P.3d 892 (omission in original) (citation and internal
quotation marks omitted); see also Utah R. Crim. P. 30(a) (“Any
error, defect, irregularity or variance which does not affect the
substantial rights of a party shall be disregarded.”). “In assessing
whether allowing the prosecution’s comments was a harmful error,
we will consider the comments both in context of the arguments
advanced by both sides as well as in context of all the evidence.”
Maestas, 2012 UT 46, ¶ 159 (citation and internal quotation marks
omitted). Furthermore, “in argument to the jury, counsel for each
side has considerable latitude and may discuss fully from their
viewpoints the evidence and the inferences and deductions arising
therefrom.” State v. Tillman, 750 P.2d 546, 560 (Utah 1987).
Consequently, “‘[a] prosecutor is not precluded from vigorous
advocacy, or the use of colorful adjectives, in summation.’” State v.
Bryant, 965 P.2d 539, 550 (Utah Ct. App. 1998) (alteration in
original) (quoting United States v. Rivera, 971 F.2d 876, 884 (2d Cir.
1992)).
¶30 Here, the parties dispute which standard of harmlessness
applies to a preserved claim of prosecutorial misconduct and which
State v. Clark
7. We acknowledge that the “case law is not entirely clear” with
respect to the harmlessness standard and who bears the burden of
proof for unpreserved claims of prosecutorial misconduct in the
plain error context. See State v. Cox, 2012 UT App 234, ¶ 15 n.2, 286
P.3d 15 (Voros, J., concurring in part and concurring in the result
in part). However, because we ultimately conclude that none of the
remaining comments challenged by Defendant were improper, we
need not address this issue.
20110206-CA 17 2014 UT App 56
party bears the burden of proving harm. Defendant argues that
because “[p]rosecutorial misconduct claims are based on the
defendant’s constitutional rights to due process and to confront
witnesses against him,” “the State must show that the error was
harmless beyond a reasonable doubt.” (Citations and internal
quotation marks omitted.) See State v. Ross, 2007 UT 89, ¶ 54, 174
P.3d 628. On the other hand, the State argues that it “is well-settled
that in most cases the defendant bears the burden on appeal to
prove that any prosecutorial misconduct prejudiced him, i.e., that
absent the alleged misconduct, there is a reasonable probability of
a more favorable outcome.” See, e.g., State v. Bakalov, 1999 UT 45,
¶ 56, 979 P.2d 799; State v. Lafferty, 749 P.2d 1239, 1255 & n.13 (Utah
1988). Because we determine that the prosecutor’s comment that
defense counsel and Defendant did not believe their own defense
was harmless beyond a reasonable doubt, we need not address this
alleged inconsistency in the law. Cf. State v. Wright, 2013 UT App
142, ¶ 41 n.6, 304 P.3d 887 (applying a similar approach in the
context of an unpreserved claim of prosecutorial misconduct).
¶31 To establish that the prosecutor’s remaining comments
constitute plain error, Defendant must show the following: “(i) An
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful, i.e., absent the error, there is a
reasonable likelihood of a more favorable outcome for the
appellant . . . .”7 State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). To
establish ineffective assistance of counsel, Defendant “must show
that counsel’s performance was deficient” and “that the deficient
State v. Clark
20110206-CA 18 2014 UT App 56
performance prejudiced the defense.” Strickland v. Washington, 466
U.S. 668, 687 (1984). We note, however, that “[f]ailure to raise futile
objections does not constitute ineffective assistance of counsel.”
State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546. Accordingly, if we
conclude that none of the prosecutor’s remaining comments were
improper, then Defendant cannot establish either plain error or
ineffective assistance of counsel.
A. The Prosecutor’s Comment Regarding the Out-of-Court
Statements Introduced by Defendant
¶32 During his rebuttal, the prosecutor observed that
Defendant’s defense hinged on his claim that he was not present at
the Salt Lake shooting. He then argued that in an attempt to
“prop[] up” this claim, Defendant introduced several out-of-court
statements “that really mean nothing.” For example, the prosecutor
cited witness testimony that referenced a “cream colored Cadillac”
that had allegedly left the crime scene shortly after the Salt Lake
shooting. The prosecutor asserted that these statements had “no
bearing on whether the Defendant was there or not there.” He then
said, “I submit to you the reason [defense counsel and Defendant
are] bringing them up is A: Confuse you. Or B: Is they don’t believe
their defense.”
¶33 Defendant argues that this comment was improper because
it accused Defendant and defense counsel of “conspiring to
fabricate the defense and to confuse the jury with unimportant
evidence.” While the State concedes that this comment was
“clumsily phrased,” it argues that the comment, when considered
in context, was a permissible response to defense counsel’s closing
argument in which defense counsel emphasized the importance of
the out-of-court statements suggesting that somebody else was
responsible for the Salt Lake shooting. In other words, the State
maintains that the prosecutor’s comment was an attempt to show
the jury that the primary defense theory was not as robust as
defense counsel would have had the jury believe. In analyzing the
prosecutor’s comment, we will separately address each
State v. Clark
8. The record indicates that Defendant did not specifically object
to the “Confuse you” part of the prosecutor’s comment, and the
trial court made no specific reference to it in ruling on the objection.
However, the court reporter repeated the entire comment,
including the “Confuse you” part, to the trial judge as the judge
considered Defendant’s objection. Thus, it is unclear whether the
issue of the impropriety of the “Confuse you” remark was
“presented to the trial court in such a way that the trial court ha[d]
an opportunity to rule on that issue,” see 438 Main St. v. Easy Heat,
Inc., 2004 UT 72, ¶ 51, 99 P.3d 801, and, therefore, whether this
issue is preserved for our review. Nevertheless, because we are
convinced that this part of the prosecutor’s comment was harmless
beyond a reasonable doubt, the claim would fail regardless of
whether we review it as a preserved claim or under plain error or
ineffective assistance of counsel.
20110206-CA 19 2014 UT App 56
part—“A: Confuse you” and 8 “B: Is they don’t believe their
defense.”
¶34 Regarding part “B” of the prosecutor’s comment—that
defense counsel and Defendant did not believe their own
defense—review of the comment does not suggest that the
prosecutor expressed his personal opinion that he did not believe
the Defendant’s defense. “[A] prosecutor engages in misconduct
when he or she expresses personal opinion or asserts personal
knowledge of the facts.” State v. Bakalov, 1999 UT 45, ¶ 57, 979 P.2d
799. Nevertheless, this comment is troublesome because it cast
“uncalled for aspersions on defense counsel” and “direct[ed] the
jury’s attention to an irrelevant factor.” See People v. Thompson, 753
P.2d 37, 52 (Cal. 1988) (In Bank). Under these circumstances, the
prosecutor’s comment called “to the attention of the jurors matters
they would not be justified in considering in determining their
verdict.” State v. Maestas, 2012 UT 46, ¶ 159, 299 P.3d 892 (citation
and internal quotation marks omitted); see also Thompson, 753 P.2d
at 52 (“[I]t is . . . improper for the prosecutor to argue to the jury
that defense counsel does not believe in his client’s defense.”).
State v. Clark
20110206-CA 20 2014 UT App 56
Nevertheless, we conclude that the prosecutor’s remark, while
improper, was harmless beyond a reasonable doubt because it was
a singular, isolated statement and was not the focus of the
prosecutor’s argument. Rather, the prosecutor’s closing argument
and rebuttal centered on the compelling and overwhelming
evidence of Defendant’s guilt and how the evidence submitted at
trial rebutted the evidence presented by Defendant.
¶35 With respect to part “A” of the prosecutor’s comment—that
defense counsel and Defendant introduced the out-of-court
statements to confuse the jury—we recently held that prosecutorial
misconduct resulted where a prosecutor “argued that defense
counsel intended to mislead the jury.” State v. Campos, 2013 UT App
213, ¶ 57, 309 P.3d 1160. “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.” Id. ¶ 57. The latter “crosse[s] the line from permissible
argument of the evidence to an impermissible attack on defense
counsel’s character.” Id. Here, the prosecutor said to the jury, “I
submit to you the reason they’re bringing [the out-of-court
statements] up is A: Confuse you . . . .” While it may be a close call,
we determine that the prosecutor’s remark was improper because
it suggested to the jury that defense counsel and Defendant
introduced the out-of-court statements as a means of intentionally
confusing or misleading the jury. However, when evaluated in the
context of the prosecutor’s closing argument and rebuttal, this part
of the prosecutor’s comment was harmless beyond a reasonable
doubt for the same reasons articulated above.
B. The Prosecutor’s Remaining Comments
¶36 Defendant argues that the following comments made by the
prosecutor also constitute prosecutorial misconduct because,
according to Defendant, they “undermined [Defendant’s] right to
a fair trial because they denigrated the defense, resorted to name
calling, and commented on [Defendant’s] credibility.” These
State v. Clark
20110206-CA 21 2014 UT App 56
comments were that Defendant had a motive to lie because he was
“the shooter” and “ha[d] nothing to lose,” that Defendant’s story
about how he obtained the murder weapon as collateral for a loan
was a “fabrication,” and that Defendant’s claim that A.S.’s
identification was mistaken was “simply an absurdity.” In addition,
the following comments made by the prosecutor during his
rebuttal, according to Defendant, also denied him his right to a fair
trial: that “logic” supported the State’s theory that the Beretta
handgun belonged to Defendant and that the maxim of “Occam’s
razor” should be employed to find that the State’s theory was “the
right one” because it was “the simplest”; that Defendant’s
explanation of why he was arrested with the murder weapon was
“convoluted and tortured”; and that Defendant’s theory of the case
was a story that the “defense would have [the jury] believe.”
Defendant also claims that the State’s use of the terms “lo and
behold” and “[p]oor Jason” were “sarcastic and gratuitous” and
that the State misrepresented the evidence by arguing that the
testimony describing a cream-colored Cadillac seen after A.S. and
D.L. called for help had “no bearing on” the case because A.S. and
D.L. waited in the house for some time before they left to seek help.
¶37 Regarding the prosecutor’s statements suggesting that
Defendant had a motive to lie and that Defendant’s account was
fabricated and absurd, we note that it is neither improper nor
“uncommon for opposing counsel to claim in summation that a
party’s theories were fabricated.” State v. Germonto, 868 P.2d 50, 63
(Utah 1993). And when there is “conflicting testimony adduced at
trial, the prosecution’s reference to [a] defendant as a liar, while
intemperate,” is not improper so long as doing so “only disclose[s]
what the jury could have reasonably inferred from the evidence.”
State v. Cummins, 839 P.2d 848, 854 (Utah Ct. App. 1992); see also
State v. Thompson, 2014 UT App 14, ¶¶ 59–60. Here, Defendant
testified that he was not present at the Salt Lake shooting and that
he was not in possession of the Beretta on the day of the Salt Lake
shooting. His testimony contradicted that of three eyewitnesses, all
of whom testified that Defendant was present at the crime scene
and two of whom testified that Defendant fired the shots resulting
State v. Clark
20110206-CA 22 2014 UT App 56
in K.K.’s and the dog’s deaths and A.S.’s and D.L.’s injuries.
Defendant’s testimony with respect to how he came into possession
of the Beretta was inconsistent with the prior statement he had
given to the police. Therefore, by suggesting that Defendant had a
motive to lie and that Defendant’s explanations were a
“fabrication,” an “absurdity,” “convoluted,” and “tortured,” the
prosecutor disclosed only “what the jury could have reasonably
inferred from the evidence.” See Cummins, 839 P.2d at 854. This is
true despite the strong language used by the prosecutor. See State
v. Bryant, 965 P.2d 539, 550 (Utah Ct. App. 1998) (“‘[A] prosecutor
is not precluded from vigorous advocacy, or the use of colorful
adjectives, in summation.’” (quoting United States v. Rivera, 971 F.2d
876, 884 (2d Cir. 1992)).
¶38 To the extent that the prosecutor’s statements might be
considered “sarcastic and gratuitous,” we find nothing in the
record to indicate that the few, isolated statements identified by
Defendant were so “unrelenting and pervasive” that they would
amount to an attempt “to inflame the jury with allegations that
were irrelevant, matters that could not permissibly be presented as
evidence, and exaggerated claims that no evidence could ever
support.” See State v. Davis, 2013 UT App 228, ¶¶ 27–30, 311 P.3d
538 (citations and internal quotation marks omitted). With respect
to the prosecutor’s remaining statements, we determine that they
fall within the “considerable latitude” afforded to him in discussing
from his viewpoint the “evidence and the inferences and
deductions arising therefrom.” State v. Tillman, 750 P.2d 546, 560
(Utah 1987).
¶39 Based on our review of the record and “the circumstances of
the case as a whole,” see State v. Troy, 688 P.2d 483, 486 (Utah 1984),
we conclude that it was improper for the prosecutor to argue that
defense counsel and Defendant introduced out-of-court witness
statements either to confuse the jury or because they did not
believe their own defense. However, we conclude that this error
was harmless beyond a reasonable doubt. Also, because none of the
prosecutor’s remaining statements were misconduct, there was no
State v. Clark
9. Defendant argues that we should conclude that the trial court’s
admission of the eyewitness identifications also violates the federal
Due Process Clause because in the area of eyewitness identification,
the due process analysis under the Utah Constitution is “certainly
as stringent as, if not more stringent than, the federal analysis.”
State v. Ramirez, 817 P.2d 774, 784 (Utah 1991); see also U.S. Const.
amend. V (“[N]or shall any person . . . be deprived of life, liberty,
or property, without due process of law.”). However, because we
determine that the identifications did not violate the Utah
Constitution, we also conclude that they do not violate the federal
Constitution.
20110206-CA 23 2014 UT App 56
error, and accordingly, Defendant’s plain error claim fails. See State
v. Lynch, 2011 UT App 1, ¶ 20, 246 P.3d 525. Likewise, defense
counsel did not render ineffective assistance in failing to raise a
futile objection to any of these comments. See id.
IV. The Eyewitness Identifications
¶40 Shortly after the Salt Lake shooting, the police presented a
six-photo lineup to A.S. and to D.L. during which both
independently identified Defendant as the person who shot them
and killed K.K. Defendant moved to suppress evidence of these
identifications from being presented at trial. Following an
evidentiary hearing, the trial court concluded that the
identifications were “sufficiently reliable to be admitted at
Defendant’s trial.” On appeal, Defendant argues that the
identifications were inadmissible under the state due process
clause. See Utah 9 Const. art. I, § 7 (“No person shall be deprived of
life, liberty or property, without due process of law. . . .”).
¶41 In considering the admissibility of an eyewitness
identification, the trial court has the responsibility “to initially
screen, under a totality of the circumstances standard, the
eyewitness testimony so that it is sufficiently reliable as not to
offend a defendant’s right to due process.” State v. Guzman, 2006
State v. Clark
20110206-CA 24 2014 UT App 56
UT 12, ¶ 21, 133 P.3d 363. In analyzing reliability, our supreme
court has identified the following “pertinent factors by which
reliability must be determined” by the trial court:
(1) [T]he opportunity of the witness to view the actor
during the event; (2) the witness’s degree of attention
to the actor at the time of the event; (3) the witness’s
capacity to observe the event, including his or her
physical and mental acuity; (4) whether the witness’s
identification was made spontaneously and remained
consistent thereafter, or whether it was the product
of suggestion; and (5) the nature of the event being
observed and the likelihood that the witness would
perceive, remember and relate it correctly. This last
area includes such factors as whether the event was
an ordinary one in the mind of the observer during
the time it was observed, and whether the race of the
actor was the same as the observer’s.
State v. Ramirez, 817 P.2d 774, 780–81 (Utah 1991) (alteration in
original) (citation and internal quotation marks omitted).
¶42 Here, the trial court observed that a “plain reading of the
relevant case law on eyewitness identification . . . indicates that the
assessment required under Ramirez applies primarily, if not
exclusively, in circumstances where a stranger to the defendant is
making the identification.” Though Defendant was a stranger to
D.L., he was not a stranger to A.S. The court therefore observed
that “assessment of the reliability of [A.S.’s] identification based
upon the Ramirez factors is not, technically, required.”
Nevertheless, the court analyzed the reliability of each eyewitness’s
identification using those factors “for reasons of thoroughness.”
The trial court ultimately concluded that, based “upon a careful
assessment of all the facts presented and the controlling case law,”
the eyewitness identifications were reliable.
State v. Clark
20110206-CA 25 2014 UT App 56
¶43 In challenging the trial court’s decision, Defendant does not
dispute the court’s factual findings. Therefore, we review the
court’s ultimate reliability determination as a matter of law and
“defer to the trial court’s fact-finding role by viewing the facts in
the light most favorable to the trial court’s decision to admit.” Id.
at 782.
A. Opportunity to View Defendant
¶44 Both A.S. and D.L. were able to view Defendant for a
significant period of time during their encounter with him. A.S.
was able to view and interact with Defendant for approximately
one hour, and D.L. viewed him for at least fifteen minutes.
Defendant was not wearing a mask, nor did he attempt to disguise
his identity in any other way. The living room of the house where
the shootings occurred was small and well-lit. Accordingly, the
trial court found, and we agree, that despite the fact that “the
presence of multiple people in the house was undoubtedly
distracting, the close quarters allowed both witnesses to clearly see
the face of Defendant several times for more than simply a few
minutes.”
B. Degree of Attention
¶45 The trial court observed that neither A.S. nor D.L. “were
casual or passing observers of the events occurring” on the day of
the Salt Lake shooting. Despite obvious distractions, including loud
noises and threats of physical violence from persons other than
Defendant, A.S. testified that these distractions did not prevent her
from repeatedly viewing Defendant’s face. As the State points out,
A.S.’s “prior association with Defendant and the length of time she
spent with him minimized the negative effects of the distracting
circumstances on her identification.” D.L. testified that her focus
during the event was on Defendant because he was the one making
demands and issuing orders. At one point, Defendant and D.L.
were looking at each other “face-to-face” so that Defendant could
determine whether D.L. was telling him the truth. Thus, the trial
State v. Clark
20110206-CA 26 2014 UT App 56
court found that both A.S. and D.L. “consistently focused their
attention on Defendant and what he was doing.”
C. Capacity to Observe
¶46 Defendant and the other intruders pointed their guns at A.S.
and D.L., made threats of violence toward them, and struck A.S.
several times with the butt of a gun and burned her with a
cigarette—events that, according to the trial court, “caused the
witnesses to experience significant levels of fear and stress.” The
anxiety experienced by A.S. caused her to bury her head in the
couch and engage in a defense mechanism of blinking her eyes
repeatedly in order to remain conscious. Nevertheless, the trial
court found that the witnesses’ ability to accurately view Defendant
was not significantly undermined because “no evidence was
presented that the level of fear and stress the witnesses experienced
rendered them unconscious, or placed them in a stupor, which
clearly would have prevented them from making accurate
observations.” The court also found that despite the witnesses’
histories of drug abuse—including use of methamphetamine in the
days just before the shootings—and A.S.’s mental health issues, the
evidence indicated “without contradiction” that these factors had
no negative effect on the witnesses’ ability to perceive and observe
Defendant.
D. Spontaneity, Consistency, and Suggestibility of the
Identification
¶47 A.S. initially told the police that she did not know who shot
her. However, during an interview the next day, she stated that she
would not provide information to law enforcement because she
feared for her safety and her son’s safety based upon threats that
the intruders made and because the intruders had not yet been
arrested. After arresting Defendant, the police presented A.S. with
a photo lineup. The detective read her the lineup instructions and
confirmed her understanding of them. He then showed A.S. the
photos, at which point she began to cry and identified Defendant,
State v. Clark
20110206-CA 27 2014 UT App 56
saying, “That’s Jason.” She indicated a level of confidence in her
identification as one-hundred percent. The same detective
separately presented D.L. with the same photo lineup. Again, the
detective verified that D.L. read the lineup instructions and that she
understood those instructions. Upon seeing the photographs, D.L.
identified Defendant and told the detective that her level of
certainty was sixty percent. Both victims told the police that
Defendant was wearing a goatee at the time of the shooting and
that their being on pain medication at the time they made the
identifications did not affect their ability to consider the
photographs. Both victims also indicated that they had not viewed
any media coverage that identified Defendant. In addition, the
“identifications occurred nine to eleven days after the shooting,”
which, according to the trial court, was “still sufficiently close in
time to the incident that the witnesses’ observations would still be
fresh in their minds” and yet “not so close in time that the stress
and fear of the events would not have abated to a significant
degree.” Cf. State v. Hollen, 2002 UT 35, ¶ 47, 44 P.3d 794 (noting
that witnesses to a bank robbery “had at least two months to
recover from the stress of the robbery before their identifications”).
¶48 As for suggestibility, the photo lineup used by the detective
included six photographs of persons with similar profiles and
similar ages, some with goatees and others without. All six
photographs were the same size and quality, and all of the persons
in the photographs had similar ethnic features. Defendant’s
photograph was neither the first nor the last in the lineup. Neither
witness was told that Defendant’s photograph was in the lineup,
nor were they told that any identification was required. We are not
convinced that the identifications were the product of a suggestive
lineup.
E. The Nature of the Event
¶49 The trial court found that the “evidence presented indicates
that [A.S. and D.L.] were readily aware that the incident involving
them on [the day of the Salt Lake shooting] was neither ordinary
State v. Clark
10. Citing rule 403 of the Utah Rules of Evidence, Defendant also
argues that the trial court “should have suppressed [A.S.’s] and
[D.L.’s] identifications because the probative value, if any, was
substantially outweighed by the danger that the jury would believe
the eyewitness identifications no matter how unreliable they were.”
Because we conclude that the identifications were reliable, we reject
Defendant’s argument on this point.
20110206-CA 28 2014 UT App 56
nor routine.” The court stated that based upon the “extraordinary
circumstances that were developing, with intruders brandishing
firearms, making threats, and engaging in violence, there can be
little question that ‘the nature of the event tended to focus the
attention of the witnesses on what was occurring.’” (Quoting
Hollen, 2002 UT 35, ¶ 61.)
¶50 Under the totality of the circumstances described above, we
conclude that the trial court correctly determined that the
identifications of A.S. and D.L. were sufficiently reliable for
admission at trial.10
V. Jury Instructions
¶51 Defendant challenges the jury instructions on three grounds.
He argues that the instructions failed to properly instruct the jury
on (1) accomplice liability, (2) the mens rea for aggravated robbery,
and (3) the mens rea for aggravated cruelty to animals. With
respect to the aggravated robbery and aggravated cruelty to
animals instructions, Defendant concedes that he failed to preserve
his objections for our review on appeal. Nevertheless, he argues
that these flawed instructions merit the reversal of his convictions
on the basis of plain error and ineffective assistance of counsel.
A. Accomplice Liability
¶52 Relying on State v. Jeffs, 2010 UT 49, 243 P.3d 1250,
Defendant argues that Instruction 23 regarding accomplice liability
State v. Clark
20110206-CA 29 2014 UT App 56
was flawed because it “‘allowed for the possibility that [Defendant]
would be found guilty’” if the jury found that he was present at the
Salt Lake shooting without regard to whether he had the “‘intent
that the underlying offense be committed and the intent to aid the
principal actor in the offense.’” (Quoting id. ¶¶ 51, 52.) Instruction
23 provides,
Every person, acting with the mental state required
for the commission of the offense who directly
commits the offense, who solicits, requests,
commands, encourages, or intentionally aids another
person to engage in conduct which constitutes an
offense shall be criminally liable as a party for such
conduct.
This instruction was copied nearly verbatim from Utah’s
accomplice liability statute. See Utah Code Ann. § 76-2-202
(LexisNexis 2003). The State contends that, “unlike in Jeffs, the
instructions as a whole adequately instructed the jury on the intent
required to convict Defendant as an accomplice.” We agree with
the State.
¶53 In Jeffs, where the jury convicted the defendant of two
counts of rape as an accomplice, the accomplice liability instruction
did not repeat the language of the accomplice liability statute. 2010
UT 49, ¶¶ 1, 41. No other instruction in that case indicated to the
jury that conviction as an accomplice to rape would require the
defendant to have acted with the mental state required for rape. Id.
¶ 42. Indeed, our supreme court held that the accomplice liability
instruction “only indicated that the reckless, knowing, or
intentional mental state attached to the actions of ‘solicited,
requested, commanded, or encouraged,’ not to the underlying
criminal conduct of rape.” Id.
¶54 By contrast, in State v. Augustine, 2013 UT App 61, 298 P.3d
693, a jury convicted the defendant of attempted murder. Id. ¶ 1.
On appeal, the defendant argued that the accomplice liability jury
State v. Clark
20110206-CA 30 2014 UT App 56
instruction, which quoted Utah’s accomplice liability statute
verbatim, failed “to adequately instruct the jury that the mental
state required in order to find him guilty of attempted murder as
an accomplice was the actual intent to cause death.” Id. ¶ 8 (internal
quotation marks omitted). However, we observed that an
additional jury instruction also provided the elements for the
underlying crime of attempted murder, including the required
mens rea. Id. ¶ 10. Thus, while noting that the accomplice liability
instruction only indicated “that a requirement of accomplice
liability is that the accomplice act[] with the mental state required
for the . . . offense,” we concluded that because the attempted
murder instruction clearly indicated that a conviction for attempted
murder required a finding that the defendant had the requisite
intent for that crime, reading the instructions together adequately
explained the mens rea requirement for accomplice liability. Id.
(alteration and omission in original) (internal quotation marks
omitted); see also State v. Lucero, 866 P.2d 1, 3 (Utah Ct. App. 1993)
(“Jury instructions must be read and evaluated as a whole. They
must accurately and adequately inform a criminal jury as to the
basic elements of the crime charged.” (citation omitted)). We
therefore held that the jury instructions as a whole accurately and
adequately informed the jury of the mental state necessary to
convict the defendant as an accomplice to attempted murder, even
assuming the jury focused on the accomplice liability instruction in
the face of compelling evidence of the defendant’s liability as a
principal. Augustine, 2013 UT App 61, ¶ 10.
¶55 In this case, Instruction 23 is substantively identical to the
accomplice liability statute and to the instruction given in
Augustine. It instructs the jury that to convict as an accomplice,
Defendant must have acted with the mental states required for the
commission of the underlying offenses, which include one count of
aggravated murder, two counts of attempted aggravated murder,
three counts of aggravated kidnapping, one count of aggravated
burglary, one count of aggravated robbery, and one count of
aggravated cruelty to animals. For each of these counts, the trial
court provided a jury instruction detailing the elements of each
State v. Clark
20110206-CA 31 2014 UT App 56
crime, including the required mental state. Therefore, we
determine, as we did in Augustine, that the jury instructions
“accurately and adequately” informed the jury as to accomplice
liability when “read and evaluated as a whole,” even assuming the
jury focused on the accomplice liability instruction in the face of
compelling evidence of Defendant’s liability as a principal. See
Lucero, 866 P.2d at 3.
B. Mens Rea for Aggravated Robbery and Aggravated Cruelty
to Animals
¶56 None of the several instructions given to the jury addressing
aggravated robbery informed the jury that a necessary element of
that crime is that the perpetrator take the property “with a purpose
or intent to deprive the person permanently or temporarily of the
personal property.” See Utah Code Ann. § 76-6-301(1)(a)
(LexisNexis Supp. 2006). The State, though conceding that
“Defendant correctly observe[d] that the instructions omitted this
element,” argues that because this element was uncontested by
Defendant at trial and because “defense counsel strategically chose
to concede Defendant’s guilt on all of the non-murder charges if the
jury found that he was the shooter,” the omission in the jury
instruction did not prejudice Defendant for purposes of plain error
or ineffective assistance of counsel. We agree with the State.
¶57 After having argued to the jury that Defendant was not
guilty because he was not present at the Salt Lake shooting, defense
counsel concluded his closing argument by stating,
You know, if you disagree and you believe beyond a
reasonable doubt that [Defendant] was there and that
he was the shooter, [the prosecutor] went through all
those elements, you don’t need to waste your time, if
you believe he was there beyond a reasonable doubt,
and you believe that he’s the shooter who shot [K.K.],
[A.S.,] and [D.L.], then I’ll concede right now.
[Defendant] will concede that the other crimes are
State v. Clark
11. Defendant claims ineffective assistance of counsel solely on the
basis that defense counsel failed to object to the flawed jury
(continued...)
20110206-CA 32 2014 UT App 56
there also. You can’t have some of them and not all
of them. But the [State] hasn’t done that and we
would ask you to find [Defendant] not guilty.
At no point did defense counsel argue that though Defendant was
present at the crime scene, the victims’ cell phones were taken with
the intent to keep them only temporarily. Also, both A.S. and D.L.
testified that they never saw their cell phones again once they were
taken. Generally, the trial court’s failure to instruct the jury on the
basic elements of an offense cannot be considered harmless error.
State v. Jones, 823 P.2d 1059, 1061 (Utah 1991). But where, as here,
the facts indisputably establish an element and that element is not
an issue at trial, a trial court’s failure to instruct on the element
cannot be prejudicial. See, e.g., State v. Fontana, 680 P.2d 1042,
1048–49 (Utah 1984) (holding that in “view of the nature and
quantity of evidence” in a second-degree murder case, there was
“no reasonable likelihood that a depraved indifference instruction
that included an express treatment of [an omitted] knowledge
element would have produced a more favorable result for the
defendant”); State v. Netzler, 2005 UT App 524U, para. 4 (“The
element challenged on appeal was undisputed at trial; therefore,
the incompleteness of the jury instructions constitutes harmless
error at most.”); State v. Stevenson, 884 P.2d 1287, 1292 (Utah Ct.
App. 1994) (holding that failure to instruct on an element of rape
was harmless because the element was undisputed at trial).
¶58 Because Defendant never contested the missing element,
and actually conceded guilt on all remaining charges if the jury
found that he was guilty of murder, he has not shown that the
omission in the aggravated robbery instruction prejudiced him. We
therefore conclude that despite this error in the jury instructions,
Defendant has not demonstrated either plain error or ineffective
assistance of counsel.11 See State v. Munguia, 2011 UT 5, ¶ 13, 253
State v. Clark
11. (...continued)
instructions. Defendant does not argue that defense counsel
rendered ineffective assistance by conceding guilt on all remaining
charges if the jury found that Defendant was guilty of murder.
20110206-CA 33 2014 UT App 56
P.3d 1082 (“The prejudice analysis is the same under both a plain
error and ineffective assistance of counsel framework.” (citation
and internal quotation marks omitted)).
¶59 With respect to his aggravated cruelty to animals conviction,
the relevant jury instruction stated that the jury could only convict
Defendant if the jury found beyond a reasonable doubt that he had
recklessly killed A.S.’s dog, or killed A.S.’s dog without being
privileged to do so. However, the jury instructions do not define
the term “recklessly.” Defendant argues that this omission resulted
in an inaccurate instruction because it “failed to provide the legal
definition of the mens rea element.” Assuming without deciding
that this omission constituted an error, we nevertheless conclude
that no prejudice resulted for the same reasons that no prejudice
resulted from the error in the aggravated robbery
instruction—Defendant conceded his guilt on this charge if the jury
found he was the person who shot and killed K.K.
VI. Cumulative Error
¶60 We will reverse Defendant’s convictions under the doctrine
of cumulative error only if the cumulative effect of all identified
and assumed errors undermines our confidence in the essential
fairness of Defendant’s trial. State v. Dunn, 850 P.2d 1201, 1229
(Utah 1993). Here, we have identified two errors—the prosecutor’s
comment to the jury that defense counsel and Defendant
introduced out-of-court witness statements either to confuse the
jury or because they did not believe their own defense and the
omission of the “intent to deprive” element from the aggravated
robbery instruction. Additionally, we have assumed that error may
have occurred in several additional instances. However, even
considering “the cumulative effect of the identified and assumed
State v. Clark
20110206-CA 34 2014 UT App 56
errors,” our “confidence in the essential fairness” of Defendant’s
trial is not undermined. See id.

Outcome: ¶61 For the reasons stated above, we affirm Defendant’s
convictions on all counts.

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