State v. Jones , 779 Utah Adv. Rep. 151 ( 2015 )

This opinion is subject to revision before
publication in the Pacific Reporter
2015 UT 19IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
MICHAEL JONES,
Appellant.
No. 20100555
Filed January 30, 2015
Third District, Salt Lake
The Honorable Michele M. Christiansen
No. 071900185
Attorneys:
Sean D. Reyes, Att’y Gen., John J. Nielsen, Asst. Att’y Gen.,
Salt Lake City, for appellee
Lori J. Seppi, Salt Lake City, for appellant
ASSOCIATE CHIEF JUSTICE NEHRING authored the opinion
of the Court, in which CHIEF JUSTICE DURRANT, JUSTICE DURHAM,
JUSTICE PARRISH, and JUSTICE LEE joined.
ASSOCIATE CHIEF JUSTICE NEHRING, opinion of the Court:
INTRODUCTION
¶ 1 Michael Jones appeals from his convictions of murder,
aggravated robbery, and unlawful distribution of a controlled
substance. He alleges multiple errors at trial. First, Mr. Jones
contends that the trial court erred when it admitted Y-STR DNA
evidence linking Mr. Jones to the murder weapon. Second,
Mr. Jones argues that the trial court erred when it denied
admission of Mr. Jones’s second police interview after the State
used excerpts from the interview at trial. In the alternative,
Mr. Jones contends that trial counsel’s failure to put his statements
STATE v. JONES
Opinion of the Court
during the police interview into context constituted ineffective
assistance of counsel. Third, Mr. Jones argues that the trial court
erred when it admitted testimony that Mr. Jones claims was
“anecdotal statistical evidence.” Fourth, Mr. Jones contends that
multiple statements made during the State’s closing argument
constituted prosecutorial misconduct. Fifth, Mr. Jones argues that
the State’s evidence was insufficient to sustain convictions for
murder or aggravated robbery, and thus the trial court erred
when it denied Mr. Jones’s motion for a directed verdict. Finally,
Mr. Jones alleges that the cumulative effect of the errors should
undermine our confidence in the verdict. After review, we affirm
Mr. Jones’s convictions.
BACKGROUND
¶ 2 On the afternoon of February 24, 2004, police officers Jim
Spangenberg and Joshua Scharman were patrolling Poplar Grove
Park in Salt Lake City when they spotted a Honda in the parking
lot with its driver’s side window rolled down. The vehicle piqued
the officers’ interest because there had recently been a rash of
Honda thefts in the Salt Lake City area and the car was parked by
itself. Officer Scharman ran the license plate number while
Officer Spangenberg investigated the car. Officer Spangenberg
opened the car door and sat in the driver’s seat, looking for signs
of tampering on the steering column. Officer Spangenberg did
not initially notice anything unusual in the back seat of the
Honda. Eventually, however, he noticed a knee poking out from
underneath the towel in the backseat. The officers tilted the front
seat forward and removed the towel and a black coat in the back
seat, revealing the body of a deceased young woman who was
later identified as Tara Brennan.
¶ 3 During her life, Ms. Brennan struggled with an addiction
to cocaine. After several unsuccessful attempts in rehab
programs, Ms. Brennan moved back into her mother’s home in
Salt Lake. On February 23, 2004, Ms. Brennan and her mother ran
an errand at the bank to cash a check of Ms. Brennan’s for
approximately $350. Ms. Brennan gave $100 to her mother for car
insurance and spent approximately $50 on a new car battery for
her Honda. Ms. Brennan’s mother had cleaned out the car in
order to sell it. She testified that she wiped down the leather
seats, vacuumed the carpet, and cleaned out the trunk. Around
6 p.m. that evening, February 23, 2004, Ms. Brennan told her
mother “she wanted to take [the car] around the block to see how
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it was running.” Ms. Brennan’s mother assumed that
Ms. Brennan took the remainder of the money, approximately
$250, from the cashed check with her when she left.
Ms. Brennan’s mother did not see her again.
¶ 4 When the officers found Ms. Brennan’s body in the back
of her Honda, she had a belt around her neck, stab wounds to her
face, defensive wounds on her hands, and a “significant slash” to
her neck. The cuts alone would not have been fatal. The medical
examiner testified that the wounds suggested “some sort of
struggle.” The medical examiner certified the cause of death as
strangulation and the manner of death as homicide. The medical
examiner estimated Ms. Brennan’s time of death was between
2 a.m. and 8 a.m. on February 24, 2004. From a toxicology report,
the examiner also concluded that Ms. Brennan had ingested
cocaine shortly before her death. Additionally, Ms. Brennan’s
pants were pulled down to her knees and she was not wearing
underwear. But the evidence suggested that her clothes had been
removed after the attack took place. The medical examiner
completed a rape kit, but the results did not show signs of sexual
intercourse or sexual assault.
¶ 5 The car’s interior showed signs of a struggle. There was
“blood throughout” the back of the vehicle and on the driver’s
seat. There were shoe prints on the ceiling and on a window, and
a rear view mirror and directional signal were broken. Crime
scene technicians also recovered a partial palm print, a number of
shoe prints, several cigarette butts from inside and outside the car,
and a blond hair from an outside door handle. Ms. Brennan’s
wallet was never recovered, and she had one penny in her pocket.
¶ 6 The technicians submitted the evidence to the crime lab,
including an empty cigarette pack, a piece of adhesive note paper,
a leather belt, an empty soda bottle, sunglasses, a lighter, the
vehicle’s rear view mirror and turn signal lever, and a partial
seatbelt buckle strap, along with other items. The evidence was
processed for fingerprints and DNA. The blond hair that had
been recovered was not submitted because officers assumed it
belonged to a lab technician who was at the crime scene, even
though that technician had logged the hair as evidence. The crime
lab developed DNA profiles from the cigarette butts found inside
and outside the Honda using PCR STR DNA testing. A cigarette
butt recovered from a cup holder in the Honda matched the DNA
profile for Michael Jones. Two cigarette butts found outside the
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STATE v. JONES
Opinion of the Court
car yielded DNA profiles for an unknown male and an unknown
female.
¶ 7 Based on the DNA match from the cigarettes, police
located and interviewed Mr. Jones in April 2004. Officers showed
him a picture of Ms. Brennan, and Mr. Jones recognized her
immediately. He said that he had seen her near the homeless
shelter where he stayed and that Ms. Brennan had approached
him to buy crack cocaine. Mr. Jones told the officers that he
helped Ms. Brennan purchase the narcotics, which they then
smoked together in Ms. Brennan’s car using Mr. Jones’s pipe.
After that, Mr. Jones said they smoked cigarettes together.
Mr. Jones claimed that he was with Ms. Brennan for about forty-
five minutes, and then he returned to the shelter and eventually
spent the night in an overflow shelter. Mr. Jones submitted to a
blood draw during the interview. The case then went cold for
more than two years.
¶ 8 In 2006, at the request of the State, Sorenson Forensics
performed a type of DNA testing, called Y-STR DNA, of
fingernail clippings taken from Ms. Brennan and of the belt used
to strangle her. Y-STR DNA analysis tests only male DNA and
thus allows for the identification of a very small amount of male
DNA that might otherwise go undetected in the presence of a
large amount of female DNA. At Mr. Jones’s trial, the State’s
experts would explain that a profile developed by the lab
“matched” Mr. Jones in that it was a “rare profile” that excluded
99.6 percent of the male population.
¶ 9 Officers also collected DNA samples from thirty to forty
men during the investigation but did not submit them for testing
because the men had submitted the samples willingly and officers
were seeking someone uncooperative. Carlaya Yazzie, 1 a female
suspect, was uncooperative when asked for a DNA sample and
none was collected from her. She remained a person of interest
but could not be located at the time of Mr. Jones’s trial.
1 Ms. Yazzie was referred to by several different names
throughout the case, including Karlaya Lynn Yazzie and Caroline
Ozzie. Despite this confusion, both parties appear to be referring
to the same person at all times.
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¶ 10 Detectives Taylor West and Mark Knighton interviewed
Mr. Jones more extensively on May 11, 2006, two years after his
initial interview. At that time, Mr. Jones said that when
Ms. Brennan contacted him, she wanted to “buy some crack
cocaine,” and that he told her “he’d have to take her somewhere
to go get it.” According to Mr. Jones, Ms. Brennan then drove him
to the Regis Hotel, where they purchased narcotics from “a guy
named Joseph.” Ms. Brennan gave Mr. Jones $30, and Mr. Jones
bought three rocks of crack cocaine. Mr. Jones told the police that
he had sold drugs for Joseph in the past but did not work for him
after that night. Mr. Jones said that he and Ms. Brennan then
drove to a parking lot at 400 South and State Street in downtown
Salt Lake City, where they smoked the cocaine together in
Ms. Brennan’s car using Mr. Jones’s pipe. He stated that
Ms. Brennan drove him back to the homeless shelter and left.
According to Mr. Jones, he then went to Motel 6, where he had
rented a room with money he had earned “selling dope that day.”
Mr. Jones said he was kicked out of the motel room and returned
to the shelter. After the interview, officers confirmed that a room
at the Motel 6 was reserved under Mr. Jones’s name, but that he
did not stay there. The shelter log where Mr. Jones claimed he
stayed did not indicate that he had checked in that night. The
shelter director also testified that the logs are maintained by
seasonal staff and that the logbook had inaccuracies.
¶ 11 Mr. Jones was charged with murder, a first-degree
felony; aggravated robbery, a first-degree felony; and unlawful
distribution of a controlled substance, a second-degree felony. At
trial, a jury convicted Mr. Jones on all counts. The trial court
sentenced Mr. Jones to consecutive statutory prison terms: five
years to life for murder, five years to life for aggravated robbery,
and one to fifteen years for distribution. Mr. Jones timely
appealed. We have jurisdiction under Utah Code section 78A-3-
102(3)(i).
STANDARDS OF REVIEW
¶ 12 Mr. Jones challenges the admission of the Y-STR DNA
evidence 2 and the exclusion of the second police interview with
2 The State argues that Mr. Jones did not preserve his challenge
to the reliability of the principles underlying the Y-STR DNA
(con’t.)
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STATE v. JONES
Opinion of the Court
Mr. Jones. “[W]e review a trial court’s decision to admit or
exclude specific evidence for an abuse of discretion.” 3
¶ 13 Mr. Jones also alleges prosecutorial misconduct during
the closing argument and challenges the admission of testimony
using statistical evidence. These arguments are unpreserved; we
therefore review them for plain error. 4 To establish plain error,
the burden is on the defendant to demonstrate that “(i) [a]n 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.” 5
¶ 14 Mr. Jones claims ineffective assistance of counsel on the
basis of counsel’s failure to put Mr. Jones’s statements during the
second police interview into context, counsel’s failure to object to
the statistical evidence testimony, and counsel’s failure to object to
the State’s closing argument. For “ineffective assistance of
counsel claims, we review a lower court’s purely factual findings
for clear error, but [we] review the application of the law to the
facts for correctness.” 6
¶ 15 Mr. Jones also alleges that the trial court erred when it
denied his motion for a directed verdict, claiming that the State
produced insufficient evidence to prove murder and aggravated
robbery. 7 “[I]n considering an insufficiency-of-evidence claim, we
evidence and thus this court should not reach it. However,
Mr. Jones challenges the conclusions of the Y-STR DNA test, not
the underlying methodology, and we determine that this
argument is preserved. See infra ¶¶ 19–20.
3 State v. Cruz-Meza, 2003 UT 32, ¶ 8, 76 P.3d 1165.
4 Mr. Jones concedes that the prosecutorial misconduct claim is
unpreserved, but he asserts that his objection to the statistical
testimony was preserved at trial. We conclude that it was not
preserved. See infra ¶ 48.
5 State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (alteration in
original) (internal quotation marks omitted).
6 Archuleta v. Galetka, 2011 UT 73, ¶ 25, 267 P.3d 232 (alteration
in original) (internal quotation marks omitted).
7 The State alleges that Mr. Jones did not preserve his
(con’t.)
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review the evidence and all reasonable inferences drawn
therefrom in a light most favorable to the verdict.” 8 Therefore, we
will reverse “only when the evidence, so viewed, is sufficiently
inconclusive or inherently improbable that reasonable minds must
have entertained a reasonable doubt that the defendant
committed the crime of which he or she was convicted.” 9
¶ 16 Finally, Mr. Jones argues that even if no one error is
sufficient, the cumulative effect of the errors warrants reversal.
In evaluating the cumulative error doctrine, “we will reverse only
if the cumulative effect of the several errors undermines our
confidence . . . that a fair trial was had.” 10
ANALYSIS
I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
IN ADMITTING THE Y-STR DNA EVIDENCE
¶ 17 Mr. Jones argues that the trial court erred when it
admitted Y-STR DNA evidence because he contends that the State
did not carry its burden of showing the reliability of the evidence
and that the probative value of the evidence was substantially
outweighed by the danger of unfair prejudice. We conclude that
the trial court did not abuse its discretion.
A. Procedural Background
¶ 18 In the present case, the State filed a pretrial motion to
admit Y-STR DNA results showing that evidence collected from
the belt ligature and from underneath Ms. Brennan’s fingernails
matched Mr. Jones’s DNA profile. At the time, the Salt Lake Legal
Defender Association (LDA) represented Mr. Jones. 11 LDA was
challenge to the sufficiency of the evidence related to the murder
count and thus it can only be reviewed for plain error. We
determine the issue was properly preserved. See infra ¶¶ 66–67.
8 State v. Maestas, 2012 UT 46, ¶ 177, 299 P.3d 892 (alteration in
original) (internal quotation marks omitted).
9 State v. Nielsen, 2014 UT 10, ¶ 30, 326 P.3d 645 (internal
quotation marks omitted).
10 State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993) (alteration in
original) (internal quotation marks omitted).
11 LDA represented Mr. Jones pretrial from January 11, 2007,
(con’t.)
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STATE v. JONES
Opinion of the Court
also handling an unrelated criminal case, State v. Johnson, 12 in
which the defendant challenged the admission of Y-STR DNA
evidence. For reasons of economy, the parties in this case
stipulated that the pleadings and evidentiary hearing from the
Johnson case regarding the Y-STR DNA issue would be adopted
for Mr. Jones’s trial. Following a hearing, the Johnson court
admitted the evidence under rule 702 of the Utah Rules of
Evidence, concluding that the scientific principles underlying the
Y-STR DNA testing are “generally accepted by the relevant
scientific community,” and that the probative value of the
evidence was not substantially outweighed by the danger of
unfair prejudice under Utah Rule of Evidence 403. The trial court
in Mr. Jones’s case therefore adopted the Johnson rulings and
admitted the Y-STR DNA evidence against Mr. Jones.
B. The Issue Was Properly Preserved
¶ 19 The State first contends that Mr. Jones did not preserve
his reliability challenge under rule 702 and that therefore this
court should not reach the issue. Mr. Jones does not contest the
underlying principles or techniques of the Y-STR DNA
technology; rather, Mr. Jones frames his 702 challenge as
pertaining to the reliability of Y-STR DNA “as identification
evidence.”
¶ 20 “An issue is preserved for appeal when it has been
presented to the district court in such a way that the court has an
opportunity to rule on [it].” 13 As noted above, Mr. Jones and the
State adopted the pleadings, argument, and court order from the
evidentiary hearing in the Johnson case, during which defense
counsel challenged the admissibility of the Y-STR DNA evidence
on the very grounds that it was unreliable for identification
purposes. We determine that counsel’s challenge during the
evidentiary hearing permitted the trial court to meaningfully rule
on the issue. We therefore conclude that Mr. Jones’s challenge to
until April 21, 2009, at which time LDA withdrew due to a
conflict, and private counsel was appointed. Because the conflict
no longer exists, LDA now represents Mr. Jones on appeal.
12 Third Judicial Dist., No. 071900184.
13 Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828(alteration in original) (internal quotation marks omitted).
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the admission of the Y-STR DNA evidence for purposes of
identification was preserved.
C. Standard of Admissibility for Expert Testimony
¶ 21 The admission of the Y-STR DNA evidence is governed
by Utah Rules of Evidence 702 and 403. 14 “Rule 702 assigns to
trial judges a ‘gatekeeper’ responsibility to screen out unreliable
expert testimony.” 15 To that end, the rule establishes a two-part
analysis to determine admissibility of expert testimony.16 First,
the testimony must “help the trier of fact to understand the
evidence or to determine a fact in issue.” 17 Second, scientific
knowledge that “serve[s] as the basis for the expert testimony”
must meet “a threshold showing that the principles or methods
14 See State v. Maestas, 2012 UT 46, ¶ 121, 299 P.3d 892. Rule
702 was amended in 2007 while the State’s motion to admit the
Y-STR DNA evidence was pending before the district court. We
interpreted the previous version of the rule to require that the
scientific principles and techniques underlying the testimony be
“inherently reliable” and properly applied to the facts by qualified
experts. State v. Rimmasch, 775 P.2d 388, 398 n.7, 403 (Utah 1989).
We later explained that the 2007 amendment was not intended to
make admission of expert testimony more difficult than under the
Rimmasch test. Eskelson ex rel. Eskelson v. Davis Hosp. & Med. Ctr.,
2010 UT 59, ¶ 11, 242 P.3d 762. Rather, the Rimmasch test was
“subsumed in the new rule.” State v. Clopten, 2009 UT 84, ¶ 38,
223 P.3d 1103. Thus, as both parties agree, the analysis is the same
under each version of rule 702. Additionally, rule 702 was
amended again in 2011, but the changes were “stylistic only” and
did not “change any result in any ruling on evidence
admissibility.” UTAH R. EVID. 702, 2011 advisory committee note.
For clarity, we cite to the rule as currently written, but we note
that the result would be the same regardless of the version used.
15State v. Perea, 2013 UT 68, ¶ 74, 322 P.3d 624 (quoting UTAH
R. EVID. 702, advisory committee note) (internal quotation marks
omitted).
16 T-Mobile USA, Inc. v. Utah State Tax Comm’n, 2011 UT 28,
¶ 42, 254 P.3d 752.
17 UTAH R. EVID. 702(a).
9
STATE v. JONES
Opinion of the Court
that are underlying in the testimony (1) are reliable, (2) are based
upon sufficient facts or data, and (3) have been reliably applied to
the facts.” 18 This threshold showing may be satisfied if the
underlying methods “are generally accepted by the relevant
expert community.” 19 Finally, even if the testimony satisfies rule
702, the court “may exclude relevant evidence if its probative
value is substantially outweighed by a danger of . . . unfair
prejudice” under rule 403.
D. Evidentiary Hearing
¶ 22 At the Johnson evidentiary hearing, Timothy
Kupferschmid, the lab director of Sorenson Forensics, 20 testified
about the use of Y-STR DNA. 21 Y-STR DNA testing is a form of
PCR STR testing, which stands for polymerase chain reaction
using short tandem repeats. Traditional PCR STR testing, also
called autosomal STR, analyzes repeating chemical patterns,
called haplotypes, at specific loci on the twenty-three pairs of
chromosomes that contain DNA. Mr. Kupferschmid testified that
Y-STR PCR testing is similar to traditional PCR STR testing in that
it looks to repeating patterns at certain loci; however, Y-STR PCR
analyzes only the Y chromosome, which is carried only by males.
As Mr. Kupferschmid explained, because it analyzes only the
Y chromosome, Y-STR PCR has several significant limitations
compared to traditional PCR STR testing. For example, because a
male inherits the entire Y chromosome from his father (unlike
other chromosomes which are a mix of paternal and maternal
DNA), all men in the same paternal line have identical
Y-chromosome DNA, and the test therefore cannot distinguish
among them. 22
18 Id. 702(b).
19 Id. 702(c).
20At the time of the testing, the Utah State Crime Lab did not
have the capability to carry out Y-STR DNA testing; therefore,
Sorenson Forensics conducted the Y-STR tests.
See also Maestas, 2012 UT 46, ¶ 9 n.3 (describing Y-STR
21
DNA).
22 The possibility of a random genetic mutation on the
Y chromosome is the same as with other chromosomes—
(con’t.)
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¶ 23 Mr. Kupferschmid also explained that Y-STR PCR
testing is statistically much less powerful than traditional PCR
STR testing. Traditional PCR STR compares patterns from
twenty-three pairs of chromosomes that have undergone
independent assortment of both paternal and maternal DNA. The
possible DNA combinations are therefore quite numerous, and
statistics for traditional PCR STR evidence can be calculated using
the “product method,” which, as Mr. Kupferschmid testified,
often results in frequencies of “one in a billion, one in a trillion
type numbers.” In contrast, Mr. Kupferschmid explained that
Y-STR DNA statistics “are much, much lower” because Y-STR
testing looks only to the single Y chromosome that did not
undergo random assortment. Calculation of occurrence must
therefore use the less powerful “counting method.”23
Mr. Kupferschmid provided an example, explaining that if the
sample was not observed in the database with a size of 3,561, the
probability that a member of the population would have that
sample is .08 percent. In turn, this means that 99.92 percent of the
male population could be excluded as a possible donor.24
Mr. Kupferschmid explained that a “match” meant that the
individual could not be excluded as the source of the sample.
¶ 24 In the Johnson case, the district court concluded that
Sorenson Forensics, the lab that analyzed the DNA samples in
both cases, had the proper certifications and protocols to reliably
approximately three or four times every thousand generations,
according to the State’s expert.
23 The probability equals the sum of occurrences of the
haplotype in the database divided by the total number of samples
in the database (P = X/N). The calculation is slightly different if
the sample profile is not in the database (P = 1 – α1/N, where α is
the confidence interval, usually 95 percent). See Scientific
Working Group on DNA Analysis Methods, Y-chromosome Short
Tandem Repeat (Y-STR) Interpretation Guidelines, FBI (Jan. 2009),
http://www.fbi.gov/about-us/lab/forensic-science-
communications/fsc/jan2009/index.htm/standards/2009_01_sta
ndards01.htm.
24 Another Sorenson employee, Rebekah Kay, testified that
finding zero matches in a database of 13,906 samples would yield
a frequency of one out of 4,651 individuals.
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STATE v. JONES
Opinion of the Court
conduct Y-STR DNA testing. The Johnson court further concluded
that the scientific principles underlying Y-STR DNA testing are
“correct” and are “generally accepted by the relevant scientific
community.” Lastly, the court concluded that the probative value
of the Y-STR DNA evidence was not substantially outweighed by
the risk of unfair prejudice. The trial court in Mr. Jones’s case
therefore adopted the Johnson rulings and admitted the Y-STR
DNA evidence against Mr. Jones.
E. The Trial Court Did not Err When It Admitted
the Expert Testimony Under Rule 702
¶ 25 Mr. Jones first challenges admission of the Y-STR DNA
evidence by arguing that the State did not carry its burden under
rule 702 to show that the expert testimony was reliable in its use
as identification evidence. Importantly, Mr. Jones does not
challenge the underlying scientific methodology or claim that the
test produced errant results in this case. Rather, he contends that
the limitations inherent within the test, even a test performed
correctly, render Y-STR DNA evidence unreliable for use in
identification.
¶ 26 We first reiterate the role of courts in assessing the
admissibility of expert testimony. Courts are to act as a
“gatekeeper,” ensuring a minimal “threshold” of reliability for the
knowledge that serves as the basis of an expert’s opinion. This is
a crucial but limited function. We must be careful not to displace
the province of the factfinder to weigh the evidence. As our court
of appeals has astutely observed, under rule 702 “the line between
assessing reliability and weighing evidence can be elusive.” 25 We
must be mindful of this important distinction because “the
factfinder bears the ultimate responsibility for evaluating the
accuracy, reliability, and weight of the testimony.”26
Acknowledging that the rule limits our task to considering
whether “the underlying principles or methods . . . are generally
25Gunn Hill Dairy Props., LLC v. L.A. Dep’t of Water & Power,
2012 UT App 20, ¶ 47, 269 P.3d 980.
26 Id.12
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accepted by the relevant expert community,” 27 we turn now to the
substance of Mr. Jones’s challenge.
¶ 27 We have previously ruled on the admissibility of both
traditional and Y-STR DNA evidence. In State v. Butterfield, we
determined that traditional PCR STR testing is inherently reliable
for identification, and we therefore allowed the admission of such
evidence. 28 Then, in State v. Maestas, we upheld admission of
Y-STR DNA evidence. 29 In that case, Mr. Maestas faced
aggravated murder and aggravated burglary charges for a series
of crimes committed with two accomplices. 30 To show that
Mr. Maestas committed the murder alone, the State introduced
Y-STR DNA evidence recovered from under the victim’s
fingernails that excluded the accomplices but could not rule out
Mr. Maestas as the DNA’s source. 31 We held that Y-STR DNA
testing is generally accepted in the relevant scientific community
and thus concluded that the trial court did not abuse its discretion
in taking judicial notice of its reliability. 32 In affirming, we noted
that scientific and forensic journals as well as other courts have
recognized Y-STR DNA testing as reliable for excluding
individuals as the source of an unknown sample. 33
¶ 28 Mr. Jones argues that we should reach a different
conclusion in the present case because he alleges the DNA
evidence was used to identify him, not to exclude him from a class
of possible perpetrators. He claims that Y-STR DNA evidence is
scientifically unreliable for identification purposes. We are not
persuaded. Where, as here, the testing procedures and results are
not in question, we agree with the State that the statistical
conclusions from the Y-STR DNA go to the weight of the
27 UTAH R. EVID. 702(c).
28 2001 UT 59, ¶ 40, 27 P.3d 1133.
29 2012 UT 46, ¶ 140.
30 Id. ¶¶ 1, 4–6.
31 Id. ¶ 126.
32 Id. ¶ 136.
33 Id. ¶ 133 & nn.145–46.
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STATE v. JONES
Opinion of the Court
testimony and not to the underlying scientific reliability. 34 We
have previously upheld the reliability of the methodology for
traditional PCR STR 35 and Y-STR DNA testing, 36 and Mr. Jones
does not challenge those principles here. It is thus for the jury to
determine whether the DNA evidence was sufficient to link
Mr. Jones to the crime. We therefore conclude that the trial court
did not abuse its discretion in admitting the Y-STR DNA
evidence.
F. The Trial Court Properly Admitted the
DNA Testimony Under Rule 403
¶ 29 Mr. Jones next argues that the trial court should have
ruled the Y-STR DNA evidence inadmissible under rule 403 of the
Utah Rules of Evidence. Rule 403 imposes on Mr. Jones the heavy
burden not only to show that the risk of unfair prejudice is greater
than the probative value, but that it “substantially outweigh[s]”
the probative value. Mr. Jones argues that the limitations of Y-
STR DNA testing diminish its probative value such that the value
34We also note that Mr. Jones does not challenge the statistics
or mathematical calculations presented at trial.
35 Butterfield, 2001 UT 59, ¶ 40.
36 Maestas, 2012 UT 46, ¶ 133 & nn.145–46. Other courts have
also upheld the reliability of Y-STR testing. See, e.g., Mitchell v.
Artus, No. 07 Civ. 4688, 2008 WL 2262606, at *20 (S.D.N.Y. June 2,
2008) (explaining that a claim that Y-STR testing cannot determine
the source to a statistical certainty “is an argument going to the
weight of the evidence”); People v. Stevey, 148 Cal. Rptr. 3d 1, 11
(Ct. App. 2012) (“The fact that Y–STR DNA testing cannot
positively identify an individual does not mean . . . that it is
unreliable, or that the results are not probative.”); People v. Zapata,
8 N.E.3d 1188, 1192–94 (Ill. App. Ct. 2014) (concluding that Y-STR
testing has gained general acceptance in the relevant community);
People v. Wood, No. 315379, 2014 WL 5470590 (Mich. Ct. App. Oct.
28, 2014) (admitting Y-STR DNA evidence under rule 702 and
finding no rule 403 violation where the expert explained the test’s
limitations to the jury); State v. Bander, 208 P.3d 1242, 1255 (Wash.
Ct. App. 2009) (recognizing the general acceptance of the counting
method for Y-STR statistical analysis).
14
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is substantially outweighed by the danger that it unfairly
prejudiced him.
¶ 30 The “critical question” in a rule 403 analysis for unfair
prejudice “is whether certainty [sic] testimony is so prejudicial
that the jury will be unable to fairly weigh the evidence.”37
Additionally, “[e]vidence is not unfairly prejudicial because it
tends to prove guilt, but because it tends to encourage the jury to
find guilt from improper reasoning.”38 However, where expert
testimony is presented accurately and where the evidence’s
scientific limitations are properly described to the jury, we cannot
conclude that the testimony is unfairly prejudicial to the
defendant or likely to confuse the jury. The fact that Y-STR DNA
evidence is less powerful than other forms of DNA evidence does
not automatically render it unfairly prejudicial to Mr. Jones or
likely to mislead or confuse the jury. For example, in Maestas, we
found that the Y-STR DNA evidence survived a rule 403 challenge
because “it was likely that the jury was able to fairly weigh the
evidence.” 39 This was so because the State’s expert carefully
explained the testing process to the jury and spoke accurately
about the test’s conclusions. 40 We found that there was no rule
403 violation even when the expert spoke of the Y-STR DNA test
as yielding a “match” to the defendant, because the expert had
37 State v. Guzman, 2006 UT 12, ¶ 27, 133 P.3d 363; see State v.
Killpack, 2008 UT 49, ¶ 53, 191 P.3d 17 (“Only when evidence
poses a danger of rous[ing] the jury to overmastering hostility
does it reach the level of unfair prejudice that rule 403 is designed
to prevent.” (alteration in original) (internal quotation marks
omitted)).
38 United States v. Condon, 720 F.3d 748, 755 (8th Cir. 2013)
(internal quotation marks omitted); see also Old Chief v. United
States, 519 U.S. 172, 180 (1997) (explaining that “unfair
prejudice . . . speaks to the capacity of some concededly relevant
evidence to lure the factfinder into declaring guilt on a ground
different from proof specific to the offense charged” (internal
quotation marks omitted)).
39 2012 UT 46, ¶ 139.
40 Id.15
STATE v. JONES
Opinion of the Court
explained that a “match” simply meant the individual could not
be excluded as a possible donor. 41
¶ 31 In reviewing the expert testimony presented in the
current case, we likewise find no rule 403 violation. Rebekah Kay,
one of the State’s experts, testified about Y-STR DNA technology
and its use in the present case. She explained that Y-STR is a
newer technology that allows for the analysis of male DNA when
it is in the presence of large amounts of female DNA. Ms. Kay
also described some of the limitations of the test, including the
fact that all men in a paternal line will likely have an identical
Y chromosome profile. On multiple occasions, Ms. Kay stated
that the DNA profile from the belt and Ms. Brennan’s fingernails
was a “match” to Mr. Jones. However, on cross-examination,
defense counsel questioned Ms. Kay on whether Y-STR DNA
evidence could reveal a “match” to a specific person. Ms. Kay
clarified that “when you are used to hearing a DNA match with
traditional STRs, you’re thinking that it’s individualized. If it
matches that person, it only matches that person.” In contrast, she
explained, with Y-STR, “it’s not the same kind of match. It is a
match to the profile but not necessarily the person.”
¶ 32 Mr. Kupferschmid also appeared as an expert for the
State and explained that, compared with traditional DNA testing,
“[t]he statistics are much lower with Y-STR DNA profiles because
. . . there is no cross-mingling of DNA.” He then testified to the
result in the present case, asserting that “approximately 99.6
percent of . . . the male population can be excluded” as a
contributor of the DNA sample but that Mr. Jones could not be
excluded. 42 When defense counsel crossed Mr. Kupferschmid on
his statistical conclusion, Mr. Kupferschmid explained that, read
another way, the frequency of Mr. Jones’s DNA profile “is
equivalent to one in 2681 individuals.” He explained this means
41 Id.42 In the State’s motion to admit the Y-STR DNA evidence, the
collected sample was compared to a database of 3,561 individuals.
At trial, Mr. Kupferschmid based his statistical analysis on the
database available at the time, which in 2010 included 8,028
samples.
16
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that “every time you test . . . a male, the probability of that person
having that particular DNA profile is approximately one in 2681.”
¶ 33 We acknowledge that Y-STR DNA may be most helpful
to the trier of fact when used to exclude possible suspects, as in
Maestas. 43 However, juries are routinely called upon to evaluate
complex scientific evidence, including DNA evidence. And any
risk of confusion or unfair prejudice are minimized where, as
here, the jury hears testimony from the experts of the various
limitations of Y-STR DNA. Additionally, Mr. Jones had the
opportunity on cross-examination to elicit details about Y-STR
testing, including its specific limitations. And counsel did just
that. Given the accurate and thorough expert testimony on the
Y-STR DNA evidence, we conclude that the DNA testimony was
properly explained to the jury such that the risk of unfair
prejudice or confusion or misleading the jury did not substantially
outweigh the probative value of the evidence. Thus, the trial
court did not abuse its discretion in admitting the Y-STR DNA
evidence against Mr. Jones.
¶ 34 We do, however, take this opportunity to note concerns
regarding DNA evidence, even traditional PCR techniques. While
we recognize the great potential benefit of DNA evidence as both
inculpatory and exculpatory evidence, we agree with the United
States Supreme Court that, “[g]iven the persuasiveness of [DNA]
evidence in the eyes of the jury, it is important that it be presented
in a fair and reliable manner.” 44 For example, and as particularly
relevant here, the Court recently warned that DNA evidence runs
the risk of creating the so-called “prosecutor’s fallacy,” which
occurs when a jury confuses random match probability with
source probability. 45 Additionally, even at its best, DNA evidence
43 2012 UT 46, ¶ 9.
44 McDaniel v. Brown, 558 U.S. 120, 136 (2010).
45 Id. at 129. For example, if there is a 1 in 10,000 chance that
the DNA from a random member of the public would match
(random match probability), that does not lead to the conclusion
that there is a 1 in 10,000 chance that the DNA sample came from
someone other than the defendant (source probability) or that
there is a 1 in 10,000 chance the defendant is innocent. If the
relevant population from which the defendant came was
(con’t.)
17
STATE v. JONES
Opinion of the Court
is not infallible; there are still concerns of, for example, inherent
subjectivity or bias 46 and unavoidable error. 47
¶ 35 Furthermore, we recognize the inherent differences in
traditional PCR and Y-STR DNA tests and caution against courts
and parties treating them identically. While the common
scientific principles may render both DNA tests reliable as expert
testimony, the disparity between their statistical conclusions is
great and warrants careful consideration. 48 For this reason, we
reiterate the responsibility of the State to properly and accurately
present Y-STR DNA evidence, including its limitations, and the
duty of defense counsel to counter any errant or incomplete
testimony.
II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
WHEN IT DENIED ADMISSION OF MR. JONES’S
SECOND INTERVIEW WITH POLICE
¶ 36 Mr. Jones next argues that the trial court erred when it
refused to admit the entire transcript or video of Mr. Jones’s
second interview with police after a State’s witness testified to
portions of the interview at trial. Alternatively, Mr. Jones
contends that his counsel rendered ineffective assistance because
counsel did not sufficiently place the State’s excerpts of the
1 million, there would be 100 individuals who could match. Thus,
the probability of the defendant being the source, based solely on
the DNA evidence, is 1 out of 100, or 1 percent.
46 See Erin Murphy, The Art in the Science of DNA: A Layperson’s
Guide to the Subjectivity Inherent in Forensic DNA Typing,
58 EMORY L.J. 489, 512 (2008) (explaining that DNA testing “is not
a perfect and purely objective science” and that even “[g]ood
inculpatory DNA methods nonetheless entail significant exercises
of discretion on the part of forensic analysts”).
47See United States v. Porter, No. F06277-89, 1994 WL 742297, at
*8 (D.C. Super. Nov. 17, 1994) (requiring the prosecution to
present evidence of the laboratory error rate alongside any DNA
evidence).
48 Cf. Murphy, supra note 46, at 493 (“[T]he use of DNA typing
to inculpate a person . . . fundamentally differs from its use to
exculpate.”).
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interview into context. We disagree and affirm the trial court’s
ruling.
¶ 37 Police interviewed Mr. Jones twice regarding
Ms. Brennan’s murder. The first interview occurred in April 2004,
two months after the murder. Detectives Knighton and West
asked Mr. Jones if he recognized a picture of Ms. Brennan.
Mr. Jones said that he met Ms. Brennan at the homeless shelter
and that they had “smoked some dope together” a number of
months ago. He then answered questions about his activities with
Ms. Brennan that evening, explaining that he helped her buy
cocaine and then they smoked the cocaine and cigarettes in her car
before he returned to the shelter. The detectives interviewed
Mr. Jones a second time two years later, in May 2006. The second
interview with the police was significantly longer than the first
interview, and the detectives asked Mr. Jones for much greater
detail about his activities on the night Ms. Brennan was
murdered.
¶ 38 Mr. Jones did not testify at trial. The State called
Detective Knighton as a witness. The detective described the first
interview on April 13, 2004. He then testified extensively about
the second interview with Mr. Jones on May 11, 2006. While
Detective Knighton testified, he had a copy of the interview
transcripts with him on the stand, but the transcripts were not
entered into evidence. At one point, the State had Detective
Knighton read directly from the transcript.
¶ 39 After the State’s direct examination of Detective
Knighton, defense counsel attempted to introduce a videotape of
the entire second interview conducted in May 2006. The State
objected, claiming that the additional statements by Mr. Jones
constituted inadmissible hearsay under Utah Rule of Evidence
801. The district court delayed its ruling on the videotape’s
admissibility. In the meantime, defense counsel cross-examined
Detective Knighton on all issues except the second interview.
Later that same day, the trial court ruled that Mr. Jones could not
admit the tape because it constituted hearsay. Instead, the court
permitted defense counsel to cross-examine the detective on those
portions of the second interview that he referenced during his
testimony. Additionally, because the court’s ruling was not made
until the evening, and in the interests of allowing defense counsel
to review the transcript of Detective Knighton’s earlier testimony,
defense counsel did not resume cross-examination of the detective
19
STATE v. JONES
Opinion of the Court
until the next day. Mr. Jones maintains that the court erred by not
admitting the full interview. Alternatively, he argues that counsel
was ineffective for failing to address more of the detective’s
testimony and for not attempting to admit portions of the
interview when the trial court denied admission of the entire
interview.
A. The District Court Did not Abuse Its Discretion When
It Denied Admission of the Transcript or Videotape
of the Second Police Interview
¶ 40 Rule 106 of the Utah Rules of Evidence codifies in part
the common law “rule of completeness,” which permits
introduction of an otherwise inadmissible statement if the
opposing party introduces a portion of the statement.49 The rule
provides that “[w]hen a writing or recorded statement or part
thereof is introduced by a party, any adverse party may require
the introduction at that time of any other part or any other writing
or recorded statement which ought in fairness to be considered
contemporaneously with it.”50 It thus serves a protective function
to prevent a “misleading impression created by taking matters out
of context.”51 The rule establishes a “fairness” standard that
49 State v. Cruz-Meza, 2003 UT 32, ¶ 9, 76 P.3d 1165.
50 UTAH R. EVID. 106 (2010). This rule is identical to its federal
counterpart. See FED. R. EVID. 106 (2010). Both rules were
amended in 2011, but the amendments were stylistic and not
intended to affect admissibility. See UTAH R. EVID. 106, 2011
advisory committee note; FED. R. EVID. 106, 2011 advisory
committee note.
We may turn to federal law for “persuasive but not necessarily
binding authority” in interpreting rule 106. State v. Leleae,
1999 UT App 368, ¶ 43 n.5, 993 P.2d 232; see Langeland v. Monarch
Motors, Inc., 952 P.2d 1058, 1062 n.4 (Utah 1998) (“[F]ederal cases
interpreting analogous Federal Rules are compelling to our
interpretation of the Utah Rules only insofar as their reasoning is
logical and persuasive.”).
51Leleae, 1999 UT App 368, ¶ 44 n.6 (quoting FED. R. EVID. 106,
1972 advisory committee note); see Echo Acceptance Corp. v.
Household Retail Servs., Inc., 267 F.3d 1068, 1089 (10th Cir. 2001)
(“[Rule 106] functions as a defensive shield against potentially
(con’t.)
20
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requires “admission of those things that are relevant and
necessary to qualify, explain, or place into context the portion
already introduced.” 52 The rule also contains a temporal
component, recognizing “the inadequacy of repair work when
delayed to a point later in the trial.”53
¶ 41 Mr. Jones’s argument raises two threshold issues
regarding the application of rule 106. First, relying on the court of
appeals decision in State v. Leleae, 54 Mr. Jones argues, and the State
concedes, that rule 106 applies to transcribed oral statements that
are used extensively at trial but are not actually introduced into
evidence. However, this court has never directly addressed that
question. 55 Second, the State argues that Mr. Jones’s statements in
misleading evidence proffered by an opposing party.”).
52 Cruz-Meza, 2003 UT 32, ¶ 14 (internal quotation marks
omitted).
53Leleae, 1999 UT App 368, ¶ 44 n.6 (quoting FED. R. EVID. 106,
1972 advisory committee note).
54 Id. ¶ 44 n.7 (“Whether the statement was officially
introduced as evidence or read from a transcript, as was done in
this case, is irrelevant. The effect on the jury was the same.”).
55 Courts have not reached a uniform decision on whether rule
106 applies to statements that are not introduced into evidence.
Compare United States v. Pendas-Martinez, 845 F.2d 938, 943 (11th
Cir. 1988) (applying rule 106 to evidence that is not actually
admitted but is used at trial in such a way that is “tantamount to
the introduction . . . into evidence” (internal quotation marks
omitted)), United States v. Rubin, 609 F.2d 51, 63 (2d Cir. 1979)
(holding that rule 106 was invoked where statements “had been
used extensively and quoted from copiously” by counsel on cross-
examination), and State v. Gray, 511 S.E.2d 873, 876 (W. Va. 1998)
(“[R]eading into the record from a document would be
tantamount to introducing that document for purposes of Rule
106.”), with State v. Bauer, 598 N.W.2d 352, 368 (Minn. 1999)
(holding that the court need not admit the entire recording of a
defendant’s interview when police testified about statements the
defendant made because rule 106 “is not applicable unless
portions of the actual recording have been introduced into
evidence”), and Rials v. Duckworth, 822 So. 2d 283, 287 (Miss. 2002)
(con’t.)
21
STATE v. JONES
Opinion of the Court
the second interview constitute inadmissible hearsay and that rule
106 cannot overcome rule 802’s prohibition against hearsay.
Again, this court has not had the occasion to decide that issue. 56
We determine, however, that we need not resolve these issues
today because Mr. Jones’s claim would fail on the merits.
¶ 42 It is the duty of the trial court to determine which
portions of the writing or recording “ought in fairness” be
considered at the same time. 57 This means that a court need only
introduce those portions that, in its discretion, are “necessary to
qualify, explain, or place into context the portion already
introduced.” 58 Mr. Jones cites a number of instances during the
detective’s testimony that he claims were taken out of context and
used to mislead the jury. Upon review of the record, however, we
determine that Detective Knighton’s testimony sufficiently
contextualized Mr. Jones’s statements during the second police
interview. 59 For all contested statements, the detective accurately
(“Rule 106 does not permit the introduction of an entire document
when a witness was . . . only cross-examined by reading from a
writing and no part of that document was introduced into
evidence.”).
56 Courts have taken different approaches to whether rule 106
can overcome the prohibition on hearsay. Compare United States v.
Collicott, 92 F.3d 973, 983 (9th Cir. 1996) (“Rule 106 does not
compel admission of otherwise inadmissible hearsay evidence.”
(internal quotation marks omitted)), and United States v. Wilkerson,
84 F.3d 692, 696 (4th Cir. 1996) (“[Rule 106] would not render
admissible the evidence which is otherwise inadmissible under
the hearsay rules.”), with McAtee v. Commonwealth, 413 S.W.3d 608,
629 (Ky. 2013) (permitting introduction of otherwise inadmissible
hearsay statements under rule 106, but only “to the extent that an
opposing party’s introduction of an incomplete out-of-court
statement would render the statement misleading or alter its
perceived meaning” (internal quotation marks omitted)).
57 UTAH R. EVID. 106 (2010).
58 Cruz-Meza, 2003 UT 32, ¶ 14 (internal quotation marks
omitted).
59 For example, Mr. Jones argues that his statement during the
interview, “I didn’t touch her,” was taken out of context. He
(con’t.)
22
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related the substance of the interview, and defense counsel
properly elicited further details during cross-examination. We
thus conclude that the trial court did not abuse its discretion when
it denied admission of the entire videotape or transcript of the
second police interview.
B. Defense Counsel Did not Render Ineffective Assistance
in His Cross-Examination of Detective Knighton
¶ 43 Mr. Jones also asserts that his counsel provided
ineffective assistance because counsel did not attempt to admit
portions of the videotape, as the court suggested it would allow,
and because counsel “[gave] up the cross-examination [of
Detective Knighton] when it got difficult.”
¶ 44 The United States Supreme Court announced a two-part
test for ineffective assistance of counsel claims in Strickland v.
Washington. 60 Mr. Jones must first show that “his counsel
rendered a deficient performance in some demonstrable manner,
which performance fell below an objective standard of reasonable
professional judgment.” 61 Second, Mr. Jones must demonstrate
“that counsel’s performance prejudiced the defendant.” 62
Moreover, we must “indulge in the strong presumption that
counsel’s conduct falls within the wide range of reasonable
contends that, in context, the statement meant that he never had
sexual contact with Ms. Brennan, but the State interpreted it as a
claim that he never had any physical contact with her, arguing in
closing that he had been untruthful because “DNA doesn’t lie. He
did touch her.” However, the record from trial demonstrates that
the detective accurately related the exchange from the interview
during his testimony. And, during cross-examination, the full
exchange from the interview was read to the jury twice. We
therefore fail to see how admission of the transcript or video was
necessary to clarify this point.
60 466 U.S. 668, 687 (1984); see Archuleta v. Galetka, 2011 UT 73,
¶ 38, 267 P.3d 232.
61 Archuleta, 2011 UT 73, ¶ 38 (internal quotation marks
omitted).
62 Id. (internal quotation marks omitted).
23
STATE v. JONES
Opinion of the Court
professional assistance” 63 and that “under the circumstances, the
challenged action might be considered sound trial strategy.”64
¶ 45 As we explained above, rule 106 does not require the
court to admit the entirety of a recording or writing, but only
those portions that are necessary to clarify, explain, or place into
context the admitted testimony. Because we find that further
clarification was not necessary for the statements Mr. Jones
challenges, we also conclude that counsel did not render
ineffective assistance. Trial counsel repeatedly attempted to
persuade the court that the entire second interview was needed, a
position that Mr. Jones maintains on appeal. When that effort
failed, counsel cross-examined the detective about Mr. Jones’s
answers during the interview and also explained the evidence and
drew favorable inferences during closing argument. We thus
determine that Mr. Jones has not shown that counsel’s
performance fell below the wide range of reasonable professional
judgment. Accordingly, Mr. Jones’s claims regarding the second
police interview fail.
III. THE DISTRICT COURT DID NOT ERR WHEN IT
ADMITTED AN OFFICER’S TESTIMONY ABOUT
THE FREQUENCY OF DRUG-RELATED CRIMES
¶ 46 Mr. Jones alleges that the trial court erred when it
admitted testimony that he claims was “anecdotal statistical
evidence” suggesting a high probability that he was guilty. The
State contends that this argument is unpreserved. Mr. Jones
argues that even if it is unpreserved, this court should reverse
under the plain error doctrine or based on ineffective assistance of
counsel.
¶ 47 We agree with the State that Mr. Jones’s challenge to
testimony by Salt Lake County police officer Scott Van Wagoner
that 90 percent of crime in Salt Lake is driven by drugs is not
preserved. Officer Van Wagoner, who has worked in law
enforcement for over twenty years including seven to ten years’
63 State v. Templin, 805 P.2d 182, 186 (Utah 1990) (internal
quotation marks omitted).
64State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (internal
quotation marks omitted).
24
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experience in a narcotics unit, testified for the State as an expert in
local drug use. Officer Van Wagoner explained the process for
making crack cocaine and also described typical drug transactions
in the area and the crimes that can result. The State asked if
Officer Van Wagoner had “seen bad things happen over $200[]
worth of drugs or less,” to which Officer Van Wagoner
responded, “Yes, ma’am.” When asked what kind of things,
Officer Van Wagoner replied, “Robberies.” At this point, defense
counsel objected to the questioning for lack of foundation. The
trial court overruled the objection, but encouraged the State to
“lay a little bit more foundation.” Mr. Jones now contests the line
of questioning pursued by the State directly after the objection:
Q: You are aware of crimes being committed in the
pursuit of obtaining drugs?
A: Yes, ma’am.
Q: What percentage of the crime you see out there
do you think is driven by drugs?
A: 90 percent.
Q: That high?
A: Yes, ma’am.
Q: And what kind of crimes have you seen
committed in the pursuit of drugs?
A: Robbery, burglary, aggravated assault, murder.
....
Q: Over less than $200?
A: Over less than $50 [worth] of drugs I have seen
it.
The State then referred to this statistical evidence in closing,
arguing that “[drugs] drive, as you heard, up to 90 percent of the
crime that we have in this valley.” Mr. Jones did not object to this
statement during closing.
¶ 48 The State claims that the issue is not preserved because
defense counsel objected to the earlier testimony but did not
object to the evidence regarding the percentage of crime attributed
to drugs. We agree. An objection must be specific enough “to
25
STATE v. JONES
Opinion of the Court
bring all claimed errors to the trial court’s attention to give the
court an opportunity to correct the errors if appropriate.”65 At
trial, defense counsel objected to Officer Van Wagoner’s
observations regarding the types of crimes that accompany drug
use in the local area. Mr. Jones now challenges Officer Van
Wagoner’s statements about the frequency of crimes related to
drug use. Officer Van Wagoner’s observation that robberies have
resulted from drug transactions is a separate issue from the
statistical testimony. Because Mr. Jones did not object to the
statistical testimony, it cannot be said that the issue was brought
to the attention of the trial court, and it is therefore unpreserved.
Mr. Jones contends that we should still reverse under the
doctrines of plain error and ineffective assistance of counsel, to
which we now turn.
¶ 49 The plain error doctrine is an exception to the general
rule of preservation—its “purpose is to permit us to avoid
injustice.” 66 But it imposes a heavy burden on defendants to
establish that: “(i) [a]n 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.” 67 Mr. Jones argues that our precedent
makes clear that use of anecdotal statistical evidence is
impermissible such that it should have been obvious to the trial
court to intervene.
¶ 50 We have indeed condemned anecdotal statistical
evidence when it concerns matters “not susceptible to quantitative
analysis.” 68 For example, in State v. Rammel, the State called a
detective to testify that, because most suspects lie when initially
questioned by police, the detective did not think it was “unusual”
65 State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867 (internal
quotation marks omitted).
66State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (internal
quotation marks omitted).
67 Id. (alteration in original) (internal quotation marks omitted).
68 State v. Rammel, 721 P.2d 498, 501 (Utah 1986) (internal
quotation marks omitted).
26
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that the defendant lied during his first interrogation.69 The trial
court admitted the detective as an expert qualified to opine on the
likelihood that the defendant was telling the truth. 70 We
determined it was error to admit the testimony because it was
“utterly lacking” in foundation and there was no evidence to
show that the detective was “uniquely qualified” as an expert to
give such testimony. 71 We also held that such testimony was
inadmissible under rule 403 because probabilities “are particularly
inappropriate when used to establish facts not susceptible to
quantitative analysis, such as whether a particular individual is
telling the truth at any given time.”72 Similarly, in State v. Iorg, the
court of appeals found testimony by an officer regarding a
victim’s veracity to be unfairly prejudicial. 73 Based on her
experience, the officer testified that in at least 50 percent of cases,
victims of sexual abuse do not report the incident until much
later. 74 The officer then opined that it would not be unusual for
the alleged victim in the case to report multiple incidents years
later, and that it did not indicate untruthfulness on the part of the
victim. 75 Citing Rammel, the court of appeals reversed, finding
that the officer’s testimony was more prejudicial than probative
and “was clearly calculated to bolster [the victim’s] believability”
before the jury.76
¶ 51 We determine, however, that there was no plain error
here. In contrast to Rammel and Iorg, the testimony in the present
case did not go to witness veracity or other “matters not
69 Id at 500.
70 Id. at 500–01.
71Id. at 501. We nonetheless affirmed the conviction in Rammel
because the error was harmless in light of significant evidence
against the defendant. Id.72 Id. at 501(internal quotation marks omitted).
73 801 P.2d 938, 941 (Utah Ct. App. 1990).
74 Id. at 939–41.
75 Id. at 939–40.
76 Id. at 942.
27
STATE v. JONES
Opinion of the Court
susceptible to quantitative analysis.” 77 Rather, Officer Van
Wagoner testified regarding the percentage of crimes linked to
drug use—a metric that is quantifiable. And the State was clear
that it did not seek official police statistics, but instead sought
Officer Van Wagoner’s professional opinion by asking about his
personal observations. Officer Van Wagoner’s extensive
experience was adequate to lay a foundation for his qualifications
to give such testimony. We conclude that there was no error that
should have been obvious to the trial court.
¶ 52 We also determine that there was no plain error
regarding Utah Rule of Evidence 403. 78 That Officer Van
Wagoner testified that 90 percent of crimes he saw were related to
drugs did not unfairly prejudice Mr. Jones. The officer had
previously explained that he spent nearly a decade with the
narcotics group, allowing the jury to infer that he likely had an
increased exposure to drug-related crimes. Moreover, the jury
was already aware that Ms. Brennan’s death may have been drug-
related both because the autopsy report revealed cocaine in Ms.
Brennan’s system and because Detective Knighton had testified
that Mr. Jones stated that he used drugs with Ms. Brennan the
night of her death. We therefore conclude that there was no plain
error and that the trial court did not err when it did not strike
77 Id. at 941.
78 We have recognized that “inherent in certain categories of
relevant evidence is an unusually strong propensity to unfairly
prejudice, inflame, or mislead a jury.” State v. Lafferty,
749 P.2d 1239, 1256 (Utah 1988). For such evidence, “the
presumption shifts” and “the evidence’s potential for unfair
prejudice is presumed to outweigh its probativeness.” State v.
Dibello, 780 P.2d 1221, 1229 (Utah 1989) (explaining that such
evidence “is uniquely subject to being used to distort the
deliberative process and skew a trial’s outcome”). Included
within these categories is the use of “statistical evidence of
matters not susceptible to quantitative analysis, such as witness
veracity.” Id. (citing Rammel, 721 P.2d at 501). However, as
discussed above, the evidence in the instant case did not involve
testimony on issues akin to witness veracity that are not capable
of quantification. As such, the rule 403 presumption in favor of
admission does not shift in this situation.
28
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Officer Van Wagoner’s testimony. Accordingly, defense counsel
was not ineffective for failing to object to the testimony.
IV. THE STATE DID NOT ENGAGE IN
PROSECUTORIAL MISCONDUCT
DURING CLOSING ARGUMENT
¶ 53 Mr. Jones argues that the State committed prosecutorial
misconduct during its closing argument. He alleges that the State
accused the defense of intentionally attempting to mislead the
jury, expressed personal opinion about the evidence, and
misstated evidence. He claims the district court erred for failing
to sua sponte strike the State’s arguments and either offering a
curative instruction or ordering a mistrial. Mr. Jones concedes
that these issues are unpreserved and therefore challenges them
on the grounds of plain error or ineffective assistance of counsel.
¶ 54 The role of the prosecution is essential to the
administration of justice, and we hold the prosecution to a high
standard because “the prosecution’s responsibility is that of ‘a
minister of justice and not simply that of an advocate.’”79
Therefore, the prosecution must ensure “that guilt is decided
upon the basis of sufficient evidence.” 80 In State v. Valdez, we
articulated a two-step inquiry to determine when the
prosecution’s conduct is “so objectionable as to merit a reversal in
a criminal case”: (1) “did the remarks call to the attention of the
jurors matters which they would not be justified in considering in
determining their verdict” and (2) were the jurors, “under the
circumstances of the particular case, probably influenced by those
remarks.”81 We have explained that it is improper for the
prosecution to, for example, assert personal opinion or knowledge
of a fact or encourage the jury to consider matters not in
evidence. 82 However, we also recognize that “[a] prosecutor has
the duty and right to argue the case based on the total picture
79State v. Hay, 859 P.2d 1, 7 (Utah 1993) (quoting UTAH R.
PROF’L CONDUCT 3.8 cmt. 1).
80 Id. (quoting UTAH R. PROF’L CONDUCT 3.8 cmt. 1).
81 513 P.2d 422, 426 (Utah 1973); see State v. Ross, 2007 UT 89,
¶ 54, 174 P.3d 628.
82 State v. Bakalov, 1999 UT 45, ¶¶ 56, 58–59, 979 P.2d 799.
29
STATE v. JONES
Opinion of the Court
shown by the evidence or the lack thereof.” 83 And because these
arguments are unpreserved, Mr. Jones must demonstrate that the
errors, if any, should have been obvious to the trial court and
resulted in prejudice to him. 84 We determine that Mr. Jones has
not carried this burden for any of his claims.
¶ 55 First, Mr. Jones alleges that the State repeatedly called
the defense’s arguments “red herrings,” thereby accusing the
defense of attempting to confuse and mislead the jury. Mr. Jones
argues that it was improper for the State to urge the jury to
disregard the defense’s “red herrings” and focus on the Y-STR
DNA evidence because he contends the State “exaggerated the
usefulness of the Y-STR evidence.” However, it is not improper
for counsel to contest the opposing party’s theories as irrelevant
or improbable, permitted that it does not amount to a personal
attack on defense counsel or an insinuation that the defense
intends to mislead the jury. 85 Here, the State’s multiple references
to “red herrings” did not amount to an accusation that Mr. Jones
or his counsel intentionally tried to confuse the jury. Rather, the
State’s references to “red herrings” were aimed at Mr. Jones’s
alternative theories—that the murder was committed by Carlaya
Yazzie, a gang member, a random rapist, or a carjacker. Thus,
they specifically targeted Mr. Jones’s trial strategy, not the
personal character or motives of the defense counsel.
Additionally, the State did not improperly present the Y-STR
DNA evidence during closing argument. As discussed above,
though Y-STR DNA has significant limitations, at trial the State’s
expert explained that to say a sample “matched” Mr. Jones meant
only that it was a “rare profile” that excluded 99.6 percent of the
83 Ross, 2007 UT 89, ¶ 55 (alteration in original) (internal
quotation marks omitted); see also State v. Dunn, 850 P.2d 1201,
1223 (Utah 1993) (“[C]ounsel for each side has considerable
latitude and may discuss fully his or her viewpoint of the
evidence and the deductions arising therefrom.”).
84 Supra ¶¶ 48–49; see State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d
346.
85 United States v. Young, 470 U.S. 1, 9 (1985) (asserting that
counsel “must not be permitted to make unfounded and
inflammatory attacks on the opposing advocate”).
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male population. Moreover, both the State and Mr. Jones elicited
testimony regarding the limitations of the Y-STR DNA evidence.
That the State chose to make it the hallmark of its case, despite
these limitations, does not amount to misconduct. We therefore
conclude that Mr. Jones has not established a plain error.
¶ 56 Second, Mr. Jones claims that the State committed
prosecutorial misconduct for its arguments emphasizing the
statistical evidence presented by Officer Van Wagoner. We have
held that “a prosecutor engages in misconduct when he or she
asserts personal knowledge of the facts in issue or expresses
personal opinion.” 86 However, there is no prosecutorial
misconduct when the prosecutor is “merely drawing a
permissible deduction from the evidence and stating what he
predict[s] the jury would find from the evidence.” 87
¶ 57 At closing argument, the prosecution reiterated Officer
Van Wagoner’s testimony:
[Drugs] drive, as you heard, up to 90 percent of the
crime that we have in this valley. . . . [U]nfortunately,
a drug addict hungry for a fix will rip off the
retirement of his aging mother, . . . he will rob
some[one] of their money, he will kill somebody . . . .
And it’s a sad fact in our society that that sort of thing
happens, but unfortunately it’s happening all the
time. And it’s what happened in this case.”
We find that these closing remarks represent a permissible
deduction based on Officer Van Wagoner’s testimony regarding
the frequency and type of crimes committed in relation to drug
activity, and thus we conclude there was no plain error.
¶ 58 Third, Mr. Jones contends that the State again asserted
personal knowledge and gave improper personal opinion when it
described the commission of the crime by stating that
Ms. Brennan was “yanked out of the seat belt . . . and pulled over
[the] headrest. That would take considerable strength. I would
submit to you the strength of a man.” However, we again
conclude that this was a permissible inference from the evidence.
86 State v. Parsons, 781 P.2d 1275, 1284 (Utah 1989).
87 Id.31
STATE v. JONES
Opinion of the Court
The State argued that Ms. Brennan must have been stabbed in the
front seat and then pulled over the headrest to the back because
the evidence showed blood throughout the car, including the
front seat, seat belt, headrest, and a pool of blood on the back floor
mat. It is not impermissible for the State to infer that such a
struggle would require significant strength on the part of the
assailant. And the State very clearly asserted its argument as an
inference by suggesting, without conclusively stating, that it must
have been a man. Thus, we determine there was no plain error.
¶ 59 Fourth, Mr. Jones next argues that the State erred when
it said that all the shoe prints in the car came from Ms. Brennan’s
boots. In truth, the evidence on this point was contradictory. A
lab report showed that the partial impression from the car’s
headliner “shares similar design features with” Ms. Brennan’s
shoes. However, at trial, the crime lab supervisor, an expert on
footwear identification, testified that the impressions from the
car’s headliner and inside the car window did not appear to
match the tread of Ms. Brennan’s boots. On appeal, the State
therefore admits that such argument may have been in error.
However, we agree with the State that any error was not obvious
and did not prejudice Mr. Jones. The forensic report shows that
“[d]ue to the limited detail in the impression” of the headliner
shoe print, a positive match could not be made. Moreover, in
light of the other evidence, we conclude that prosecution’s
misstatement regarding the shoe prints did not substantially
prejudice Mr. Jones.
¶ 60 Fifth, Mr. Jones argues that the State asserted personal
knowledge and expressed personal opinion when it defended the
decision by the police not to test Mr. Jones’s clothes seized from
the jail. In his closing argument, Mr. Jones attempted to discredit
the State’s case by arguing that the police carried out a sloppy
investigation. He argued that, for example, even though the
police seized Mr. Jones’s clothes while he was in custody, they
never submitted the clothes for testing. On rebuttal, the
prosecution explained that because three weeks passed between
the murder and when Mr. Jones’s clothes were seized in jail, Mr.
Jones had “probably changed his clothes by then.” The
prosecution then added, “In fact, I’m pretty sure they are not the
same clothes” that Mr. Jones was wearing the night of the murder.
That was the reason, the State contended, that “the detective
probably didn’t run [the clothes] over to the crime lab.” Mr. Jones
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also challenges the State’s assertion that Detective Knighton had
gone to look for Mr. Jones’s clothes at the shelter, but “[t]he
shelter had destroyed them.” At trial, Detective Knighton actually
testified that Mr. Jones’s locker at the shelter was “empty,” not
that the shelter had destroyed the clothes.
¶ 61 We conclude, however, that such statements constituted
a permissible inference from Detective Knighton’s trial testimony.
The detective testified that Mr. Jones had said he wore a purple
coat on the night of the murder, and Detective Knighton had
attempted to locate the coat by searching the house of Mr. Jones’s
mother as well as Mr. Jones’s locker at the shelter. Therefore, the
prosecution drew reasonable inferences that Mr. Jones had
changed clothes, no longer had the purple coat with him when he
was in police custody, and thus the police did not have reason to
submit the clothes for testing by the crime lab. Similarly, though
the prosecution’s statement that the shelter destroyed the clothes
was inaccurate, it would be reasonable to infer that any clothes
belonging to Mr. Jones that were not with him at the jail may have
been lost, thrown away, or destroyed. Thus, there was no error
that should have been obvious to the district court.
¶ 62 Sixth, Mr. Jones claims that the State’s arguments
regarding the defense’s theories of a carjacking or gang violence
referenced facts not in evidence. During rebuttal, the State again
argued that Mr. Jones’s alternative theories were “red herrings,”
asserting that “the only problem with that little theory [about
carjacking] is, they didn’t take the car,” and that gangs “don’t kill
Stanford graduates, they kill rival gang members.” The State
appears to concede that such arguments improperly referred to
facts not in evidence. However, we conclude that the arguments
regarding the carjacking and gang violence did not prejudice
Mr. Jones. Though Mr. Jones fleetingly addressed such theories
during the trial, these arguments were not a mainstay of his trial
strategy. Indeed, he did not even argue them in closing. We
therefore conclude that the extra-record comments of the
prosecution likely did not influence the jury on these issues.
¶ 63 Seventh, Mr. Jones claims that the State, in an effort to
demonstrate inconsistencies in Mr. Jones’s narrative, erroneously
argued that Mr. Jones changed his story about whether
Ms. Brennan had a pipe. Again, as the State concedes, the
prosecution misstated the evidence on this point. The
uncontroverted evidence at trial showed that Mr. Jones
33
STATE v. JONES
Opinion of the Court
consistently told police that he and Ms. Brennan used his pipe.
We conclude, however, that this error did not prejudice Mr. Jones.
The fact of whose pipe was used was not a matter of consequence
before the jury, particularly where Mr. Jones had admitted to the
detectives that he and Ms. Brennan had purchased and smoked
narcotics together. And though the State used this supposed
inconsistency to cast doubt on Mr. Jones’s narrative, we find that
the jury was unlikely to be influenced by such a trivial
discrepancy.
¶ 64 In sum, we conclude that Mr. Jones has not
demonstrated plain error for any of his claims. Accordingly, we
hold that there was not a reasonable probability of a different
outcome had Mr. Jones’s counsel objected to the State’s closing
argument. 88 Therefore, Mr. Jones’s claims for ineffective
assistance of counsel fail.
V. THE EVIDENCE WAS SUFFICIENT TO SUPPORT
MR. JONES’S CONVICTIONS FOR MURDER
AND AGGRAVATED ROBBERY
¶ 65 Mr. Jones argues that the evidence presented by the State
was insufficient to sustain his convictions for murder and
aggravated robbery, 89 and he therefore asks this court to reverse
the convictions. After reviewing the record, we hold that
Mr. Jones has not demonstrated there was insufficient evidence to
support his convictions. We therefore affirm.
A. Mr. Jones’s Challenge to the Sufficiency of the Evidence
Supporting His Murder Conviction Was Preserved
¶ 66 We first address the State’s contention that Mr. Jones’s
argument regarding the murder charge was unpreserved. At the
close of the State’s evidence, Mr. Jones moved to dismiss the case
on the basis that the State failed to establish the elements of the
crimes. Regarding the motion to dismiss for the charges of
88 See Archuleta v. Galetka, 2011 UT 73, ¶ 38, 267 P.3d 232(holding that for an ineffective assistance of counsel claim, a
defendant must demonstrate “that counsel’s performance
prejudiced the defendant” (internal quotation marks omitted)).
89 Mr. Jones does not challenge his unlawful distribution
conviction for insufficient evidence.
34
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murder (count one) and unlawful distribution (count three),
defense counsel stated, “I’m not going to address those rather
extensively” because from “the evidence the Court has heard, . . .
[the court] can make a ruling on [its] own.” Defense counsel then
extensively argued a sufficiency of the evidence claim regarding
the aggravated robbery charge (count two), and the State
responded only as to that charge. The trial court denied “the
motion to dismiss count two.” Defense counsel then requested
the court rule on the murder and unlawful distribution charges,
even though counsel admittedly “didn’t argue it but our motion
would include” those counts. Without further argument, the
court denied the motion for all three counts. 90
¶ 67 We hold that Mr. Jones preserved his challenge to the
murder conviction. “An issue is preserved for appeal when it has
been presented to the district court in such a way that the court
has an opportunity to rule on [it].” 91 Mr. Jones moved for a
directed verdict both after the State rested and at the close of all
evidence, and his motion specifically addressed all three charges
against him. Though counsel was brief, under the circumstances
of this case, it is clear that Mr. Jones challenged the sufficiency of
the evidence that identified him as the murderer because there
were no other contested issues related to the murder charge.
Thus, we determine that the court had notice of the claim and an
opportunity to rule on it; therefore, the claim was preserved. We
now turn to the merits of Mr. Jones’s arguments challenging his
murder and aggravated robbery charges.
90 After the defense rested, Mr. Jones moved for directed
verdict “with regard to all three[] counts.” Again, defense counsel
stated, “I don’t think I will spend a great deal of time with regard
to count one or count three.” Defense counsel argued extensively
regarding count two, the aggravated robbery charge. The court
denied the motion as to count two. Defense counsel again asked
for a ruling on counts one and three, noting that “I didn’t argue
them but I did make the motion.” The court denied the motion
for directed verdict as to counts one and three as well.
91 Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828(alteration in original) (internal quotation marks omitted).
35
STATE v. JONES
Opinion of the Court
B. The Evidence Was Sufficient to Sustain
Mr. Jones’s Murder Conviction
¶ 68 To succeed in overturning the verdict, Mr. Jones has the
burden to “marshal the evidence in support of the verdict and
then demonstrate that the evidence is insufficient when viewed in
the light most favorable to the verdict.” 92 The standard of review
for a sufficiency of the evidence is “highly deferential” 93: “we will
reverse a jury verdict only when the evidence . . . is sufficiently
inconclusive or inherently improbable that reasonable minds must
have entertained a reasonable doubt that the defendant
committed the crime of which he or she was convicted.” 94
¶ 69 The State charged Mr. Jones with murder under three
alternative theories: “intentionally or knowingly caus[ing] the
death of another,” “depraved indifference to human life,” and
felony murder. 95 Drawing all inferences in the light most
favorable to the verdict, we determine that the State provided
sufficient evidence for the jury to find Mr. Jones guilty of murder.
Detective Knighton testified that Mr. Jones admitted to being with
Ms. Brennan in her car on the night of her death and to buying
and smoking crack cocaine with her. The autopsy report revealed
that Ms. Brennan had ingested cocaine shortly before her death.
DNA testing on cigarettes found inside the vehicle confirmed that
Mr. Jones had been in the car. The director of the homeless shelter
testified that the shelter records indicated that Mr. Jones checked
into the shelter every night from February 1 to February 22, that
he did not check in on February 23—the night of Ms. Brennan’s
92State v. Pritchett, 2003 UT 24, ¶ 22, 69 P.3d 1278 (internal
quotation marks omitted).
93 State v. Nielsen, 2014 UT 10, ¶ 30, 326 P.3d 645.
94 State v. Maestas, 2012 UT 46, ¶ 302, 299 P.3d 892 (internal
quotation marks omitted); see also State v. Walker, 765 P.2d 874, 874
(Utah 1988) (“So long as there is some evidence, including
reasonable inferences, from which findings of all the requisite
elements of the crime can reasonably be made, our inquiry stops.”
(internal quotation marks omitted)).
95 UTAH CODE § 76-5-203(2). The predicate offense charged in
this case for felony murder was robbery under Utah Code section
76-5-203(1)(s).
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murder—and that he checked in again on February 24. Detective
Knighton testified that he was never able to locate the coat that
Mr. Jones claimed to have been wearing on the night he met with
Ms. Brennan. Ms. Brennan’s mother testified that Ms. Brennan
had left the house with approximately $200 in cash, but
Ms. Brennan’s wallet was never recovered. Experts from the state
crime lab and Sorenson Forensics testified that Y-STR DNA
testing from samples underneath Ms. Brennan’s fingernails and
the belt used to strangle her excluded 99.6 percent of the male
population but could not exclude Mr. Jones.
¶ 70 Given the deferential standard on review, we conclude
that the State presented sufficient evidence to allow the jury to
reasonably find all required elements for the crime of murder.
C. The Evidence Was Sufficient to Sustain Mr. Jones’s
Aggravated Robbery Conviction
¶ 71 We also conclude that the State presented sufficient
evidence to support a guilty verdict on the charge of aggravated
robbery. “A person commits aggravated robbery if in the course
of committing robbery, he: (a) uses or threatens to use a
dangerous weapon . . . ; [or] (b) causes serious bodily injury upon
another[.]” 96
¶ 72 At trial, Ms. Brennan’s mother testified that Ms. Brennan
often carried a wallet and that Ms. Brennan likely had about $200
when she left home on the night of her death. Detective Knighton
testified that Mr. Jones stated that Ms. Brennan purchased the
cocaine, but only used about $30 to make the purchase. Officer
Van Wagoner testified that, in his experience, drug crimes are
responsible for a substantial portion of crimes in the Salt Lake
area and that robberies were commonly associated with drug
crimes.
¶ 73 Mr. Jones argues that there are plausible alternatives to
explain why the wallet was never found. However, in reviewing
a jury verdict, we do not consider possible alternatives. Instead,
we must view the evidence in the light most favorable to the
verdict. We conclude that reasonable inferences drawn from the
evidence presented support the jury’s conviction for aggravated
robbery.
96 UTAH CODE § 76-6-302(1).
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STATE v. JONES
Opinion of the Court
VI. MR. JONES HAS NOT DEMONSTRATED
CUMULATIVE ERROR THAT UNDERMINES
OUR CONFIDENCE IN THE VERDICT
¶ 74 Lastly, Mr. Jones argues that his convictions should be
reversed under the cumulative error doctrine because he alleges
that the errors claimed above should undermine our confidence in
the verdict. To evaluate a cumulative error claim, “we consider
all the identified errors, as well as any errors we assume may have
occurred.” 97 However, “[i]f the claims are found on appeal to not
constitute error, or the errors are found to be so minor as to result
in no harm, the doctrine will not be applied.” 98 Because we find
that each of Mr. Jones’s claims fails or does not constitute
substantial error, our confidence in the fairness of his trial and his
guilty verdict are not undermined. Therefore, we find no
cumulative error.
CONCLUSION
¶ 75 We determine that each of Mr. Jones’s challenges to his
convictions for murder, aggravated robbery, and unlawful
distribution of a controlled substance fail. Accordingly, we affirm
his convictions.
97State v. Maestas, 2012 UT 46, ¶ 363, 299 P.3d 892 (internal
quotation marks omitted).
98 Id. (alteration in original) (internal quotation marks omitted).
38