State v. Nielsen , 2014 Utah LEXIS 49 ( 2014 )

This opinion is subject to revision before final
publication in the Pacific Reporter.
2014 UT 10
IN THE
SUPREME COURT OF THE STATE OF UTAH
———————
STATE OF UTAH,
Plaintiff and Appellee,
v.
CODY LYNN NIELSEN,
Defendant and Appellant.
———————
No. 20080709
Filed April 29, 2014
———————
First District, Logan Dep’t
The Honorable Clint S. Judkins
No. 011100412
———————
Attorneys:
Sean D. Reyes, Att’y Gen., Karen A. Klucznik, Asst. Att’y Gen.,
Salt Lake City, Tony C. Baird, Logan, for appellee
Craig T. Peterson, Bountiful, for appellant
———————
JUSTICE LEE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE DURHAM, and JUSTICE PARRISH joined.
———————
JUSTICE LEE, opinion of the Court:
¶1 Cody Nielsen was convicted of the aggravated murder of
Trisha Autry and sentenced to life without parole. On this appeal,
Nielsen raises a series of challenges to the venue for his trial—a
Cache County trial with a jury comprised of Box Elder County
residents. He also questions the sufficiency of the evidence to sus-
tain lesser offenses of kidnapping and aggravated kidnapping and
the sufficiency of the evidence to sustain his bindover for trial on
aggravated murder. Finally, he asserts that his convictions for
kidnapping and desecration of a body should have merged with
his conviction of aggravated murder, necessitating vacatur of the-
se lesser offenses.
STATE v. NIELSEN
Opinion of the Court
¶2 We affirm Nielsen’s conviction of and sentence for aggra-
vated murder and desecration of a body, but reverse and vacate
his kidnapping and aggravated kidnapping convictions on mer-
ger grounds.
I
¶3 On the morning of June 24, 2000, fifteen-year-old Trisha
Autry disappeared from her home in Hyrum, Utah. Her disap-
pearance remained a mystery for nearly a year, until the remains
of her body and clothing were discovered buried in a hole at the
U.S.D.A. Predator Research Facility in the nearby town of Mill-
ville. Nielsen, an employee at the Predator Facility, was eventual-
ly arrested and charged with her murder.
¶4 According to the evidence gathered by law enforcement,
Nielsen first met Trisha in April of 2000. She was walking home
from school with a friend when he passed them in his truck sever-
al times. He eventually pulled up and began talking to them.
Nielsen gave them his pager number, and told them to call him if
they ―ever want[ed] to go do something, party, drink, whatever.‖
¶5 A few days later, Trisha was walking home with a different
friend when Nielsen’s truck passed them again. Trisha’s friend
testified that Trisha became agitated, and told her that the man in
the truck—whom she called ―Sam‖—had been following her and
calling her at home. The two girls ran away from the truck when it
passed again, and were eventually picked up by their neighbor.
The neighbor testified that the girls were ―pretty nervous.‖ After
this second incident, Trisha began calling home after school ―pret-
ty much every day‖ and asking her family members to come and
pick her up so that she wouldn’t have to walk home.
¶6 Trisha’s mother awoke early on the morning of June 24 and
discovered that Trisha was not in her bedroom. After the family
failed to find her, Trisha’s mother called the police to report Tri-
sha missing at about 6:30 a.m.
¶7 In Trisha’s room, her mother noticed that many of Trisha’s
belongings were missing: the clothing she had worn the previous
day, a pair of old tennis shoes that Trisha didn’t like, and a bra
that she only wore when sleeping. The missing clothes led her
mother to deduce that she hadn’t left to meet anyone, because Tri-
sha would have changed into clean clothes, and only wore dirty
clothes ―if she wasn’t going anywhere.‖ Based on this and other
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evidence, Trisha’s mother concluded that she had gone for a soli-
tary walk. The immediate investigation into Trisha’s disappear-
ance failed to produce any information on her whereabouts.
¶8 A few weeks earlier, in late May or early June of 2000, one
of Nielsen’s coworkers, William Pitt, noticed Nielsen digging a
large hole on the grounds of the Predator Facility, using a backhoe
and grader that he used in his job at the facility. When Pitt asked
him about the hole, Nielsen told him he wanted to ―see how deep
of a hole he could dig‖ with the backhoe. Pitt told Nielsen to fill
the hole because it was a safety hazard. In the following months,
Pitt and another employee, Doris Zemlicka, observed Nielsen
digging around the area with a backhoe, creating a large pile of
trash and debris in and on the now-filled-in hole. Eventually they
noticed that Nielsen burned the pile of trash and debris over the
course of an entire day.
¶9 Almost one year later, the efforts of a private investigator
led police to identify Nielsen as a suspect in Trisha’s disappear-
ance and to home in on the Predator Facility. Cadaver dogs were
brought in as an element of a search of the facility. The dogs alert-
ed on the area of the hole dug by Nielsen. In the ensuing excava-
tion, law enforcement discovered a part of Trisha’s jawbone, sev-
eral hundred other bone fragments, her shoes, bra, and part of the
waistband of her underwear. The police interviewed Nielsen, who
admitted that he had met Trisha and sometimes went by the nick-
name ―Sam.‖ Under further questioning, Nielsen neither admitted
nor denied that he killed Trisha.
¶10 Nielsen was charged with aggravated murder, obstruction
of justice, and desecration of a dead body. After a preliminary
hearing, the trial court bound him over as charged. Nielsen sub-
sequently filed a motion for a change of venue—from Cache
County to Davis County—asserting a potential for jury bias
against him due to extensive pretrial publicity in Cache County.
The State did not oppose the motion, which was granted by the
trial court.
¶11 For reasons unclear from the record, the trial court did not
immediately transfer the case to Davis County. Instead, ongoing
pretrial proceedings continued in Cache County. About a year lat-
er, in September 2002, defense counsel raised the venue issue
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STATE v. NIELSEN
Opinion of the Court
again, this time seeking a trial in Box Elder County instead of Da-
vis. Again, the State did not object, and the trial court agreed.
¶12 Again, however, the case was not immediately transferred.
Instead, the parties’ attention turned to concerns regarding the
size and security of the courtroom facilities in Box Elder County.
In light of these concerns, the State suggested that the trial be held
in Cache County; the defense objected. Ultimately, the trial court
ordered that the trial be held in Cache County, but with jurors
chosen in and transported from Box Elder County.
¶13 Before trial, the prosecution amended the information,
charging Nielsen with one count of aggravated murder, two
counts of desecration of a human body, one count of aggravated
kidnapping, and one count of kidnapping. At trial, after the State
had concluded its case-in-chief, the defense moved for a directed
verdict on all five charges. The trial court denied the motion.
¶14 The jury ultimately convicted Nielsen as charged, finding
that the kidnapping and aggravated kidnapping charges served
as the statutory aggravators required to sustain the aggravated
murder charge. The trial court noted that kidnapping was a lesser-
included offense of aggravated kidnapping, however, and ruled
that the kidnapping conviction should merge into aggravated
kidnapping. For reasons unclear on the record, however, the
court’s final judgment failed to reflect the ruling on merger—
indicating instead that Nielsen was convicted on both the kidnap-
ping and aggravated kidnapping charges.
¶15 After returning its verdict, the jury also heard evidence that
Nielsen had been previously convicted of assault. At the time the
crime was committed, a prior felony conviction involving ―the use
or threat of violence to a person‖ was a statutory aggravator for
aggravated murder. UTAH CODE § 76-5-202(1)(h) (2000). But alt-
hough Nielsen had been charged and convicted on a felony as-
sault charge, the conviction had been statutorily reduced to a class
A misdemeanor under Utah Code section 76-3-402. The jury re-
ceived a copy of the criminal record and concluded that Nielsen’s
crime was a felony involving the use of violence, and considered
it as a statutory aggravator for sentencing purposes.
¶16 Nielsen’s aggravated murder conviction triggered the capi-
tal sentencing statute. UTAH CODE § 76-3-207. Under that statute,
the jury exercises wide discretion when determining what sen-
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tence to impose, and can consider ―any . . . facts in aggravation or
mitigation of the penalty that the court considers relevant to the
sentence.‖ Id. § 76-3-207(2)(1)(iv). Of the three possible sentences
that the jury could have imposed (life, life without the possibility
of parole, and death), the jury sentenced Nielsen to life without
the possibility of parole. He was also sentenced to fifteen years to
life in prison for the aggravated kidnapping charge and up to five
years in prison for each count of desecration of a human body. His
sentences were to run consecutively.
¶17 Nielsen filed a timely motion for new trial in April 2004.
For reasons not entirely clear from the record, that motion was left
pending—without Nielsen ever submitting a memorandum in
support and without any ruling disposing of the motion—for over
four years. Eventually, in July 2008, the district court issued two
separate orders finally disposing of Nielsen’s pending motion.
Nielsen filed two separate notices of appeal, each within thirty
days of the district court’s orders.
¶18 The parties appear to concede the timeliness of Nielsen’s
appeal, and we see no reason to disagree. Under rule 4(b)(1) of the
Utah Rules of Appellate Procedure, the thirty-day period for Niel-
sen’s notice of appeal was to ―run[] from the entry of the [district
court’s] order disposing of the motion‖ for new trial. It appears
from the record that the trial court did not ―dispos[e] of‖ the mo-
tion until July 2008, so we conclude that Nielsen filed a timely no-
tice of appeal preserving our appellate jurisdiction.
II
¶19 On appeal, Nielsen challenges his convictions and sentenc-
es on several grounds. First, he asserts a range of errors related to
venue issues—asserting plain error by the district court and/or
ineffective assistance of counsel in connection with the failure to
transfer the case to Davis County, the subsequent consideration of
a transfer to Box Elder County, and the ultimate determination to
try the case in Cache County with Box Elder jurors. Second, Niel-
sen appeals the denial of his motion for directed verdict on the
kidnapping charge, asserting that there was insufficient evidence
on an essential element of that crime. Third, Nielsen challenges
the sufficiency of the evidence to bind him over for trial on the
charge of aggravated murder. And finally, he appeals his convic-
tions for aggravated kidnapping, kidnapping, and desecration of
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STATE v. NIELSEN
Opinion of the Court
a body on merger grounds, asserting that these crimes should
have merged into the aggravated murder conviction.
¶20 We affirm Nielsen’s convictions and sentences for aggra-
vated murder and desecration of a body, but reverse and vacate
his convictions for kidnapping and aggravated kidnapping on
merger grounds.
A. Venue Issues
¶21 Nielsen asserts a series of challenges to the various venue
determinations made by the district court—in the failure to trans-
fer the case to Davis County while later determining to transfer
the case to Box Elder County, and also in holding the trial in
Cache County with Box Elder jurors. The first of these challenges
was unpreserved in the district court, and comes before us on
Nielsen’s assertion of ineffective assistance of counsel and plain
error. The latter challenge was preserved below. We affirm, reject-
ing the first set of venue arguments based on Nielsen’s failure to
establish prejudice and rejecting the last on the merits.
1. Failure to transfer to Davis County
¶22 When the district court granted Nielsen’s motion to trans-
fer venue to Davis County, the judge was required by statute to
transfer the case for trial to the transferee court. UTAH CODE § 78-
13-10 (2001). By rule, the transfer of ―all documents of record con-
cerning the case‖ was to be effected ―without delay.‖ UTAH R.
CRIM. P. 29(e). Nielsen asserts plain error in the district court’s
failure to do so, and claims that his trial counsel was ineffective in
not raising this issue below. He also asserts parallel challenges to
the subsequent determination to transfer the case to Box Elder
County, claiming both plain error and ineffective assistance in not
abiding by the initial decision to transfer to Davis County.
¶23 We reject both claims for lack of proof of prejudice. Niel-
sen’s only assertion of harm from the district court’s failure to
promptly transfer the case to Davis County is the notion that ―the
defendant was tried by a jury who was selected from a county
that had extensive prejudicial media coverage of the alleged
crimes and bused the short distance to the county where the al-
leged crimes took place.‖ That is insufficient. Where the alleged
harm is a tainted jury in a trial that has already taken place, the
question is not a mere likelihood of bias in the jury venire; it is ac-
tual bias on the part of the jurors who actually sat. Lafferty v. State,
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2007 UT 73, ¶ 42, 175 P.3d 530. Nielsen has made no such show-
ing. He has asserted that pretrial publicity might have tainted the
jury venire, while conceding that he has no evidence of actual bias
on the part of any actual juror.
¶24 Nielsen’s lack of proof of such prejudice foils his claims of
plain error and ineffective assistance of counsel. A claim of plain
error fails in the absence of proof that an error is harmful—in the
sense of having a ―reasonable likelihood‖ of affecting the out-
come. State v. Harris, 2012 UT 77, ¶ 24, 289 P.3d 591. The same
goes for a claim of ineffective assistance of counsel. Such a claim
requires a showing both ―that counsel’s performance was defi-
cient‖ and that ―the deficient performance prejudiced the de-
fense.‖ Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus,
even assuming that the court’s failure to transfer was error and
that counsel was deficient in failing to raise the issue, Nielsen’s
claims fail absent any salient showing of prejudice.
2. Holding trial in Cache County with Box Elder jurors
¶25 In December 2003, over two years after Nielsen was first
charged, the trial judge decided to hold the trial in Cache County
due to security and logistical concerns relating to the courthouse
in Box Elder County. To minimize the risk of any potential bias
resulting from pretrial publicity, however, the judge also deter-
mined to convene a jury from a venire consisting of residents of
neighboring Box Elder County.
¶26 Nielsen challenges the trial judge’s decision overruling his
objection to these determinations. He bears a heavy burden in so
doing. The law leaves decisions regarding venue transfer largely
in the discretion of the trial judge. See City of Grantsville v. Redev.
Agency, 2010 UT 38, ¶ 53, 233 P.3d 461. We overturn discretionary
judgments on such matters only in the rare case of an abuse of
discretion. Id.
¶27 We see no abuse of discretion here. Nielsen’s principal
claim of an abuse of discretion is his speculation that a jury as-
sembled in Cache County may have felt ―undue pressure . . . to
make a decision they may not otherwise make, if they were free
from all of that over in Box Elder County.‖ But as we noted in the
City of Grantsville case, trial judges act well within the broad
bounds of their discretion in denying venue transfer motions in
the face of ―allegations of bias . . . based on general apprehensions
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Opinion of the Court
based upon conjecture.‖ 2010 UT 38, ¶ 53 (internal quotation
marks omitted). That conclusion is clearer where the defense has
the opportunity to ―weed out potentially biased jurors‖ during
voir dire proceedings, id., and even more so where the court took
the additional step of busing jurors from a neighboring county.
¶28 We cannot conclude that the judge’s decisions were so arbi-
trary and capricious that ―no reasonable [person] would take the
view adopted by the trial court.‖ State v. Butterfield, 2001 UT 59,
¶ 28, 27 P.3d 1133 (alteration in original) (internal quotation marks
omitted). Granted, other alternatives for dealing with Nielsen’s
concerns regarding pretrial publicity were also available. The
judge could have held the trial in a different venue, such as Davis
County, for example. But the existence of other alternatives does
not make the one selected by the judge an irrational one. And we
accordingly affirm because we deem his chosen approach a rea-
sonable one among many.
B. Sufficiency of the Evidence on Kidnapping Convictions
¶29 Nielsen’s challenge to his kidnapping and aggravated kid-
napping convictions sets its sights on the denial of his motion for
directed verdict. He argues that there was insufficient evidence
for a reasonable jury to decide beyond a reasonable doubt that
Trisha went with Nielsen against her will, a necessary element of
kidnapping (and thus also an element of aggravated kidnapping).
UTAH CODE §§ 76-5-301, –302.
¶30 The applicable standard of review is again highly deferen-
tial. In assessing a claim of insufficiency of the evidence, ―we re-
view the evidence and all inferences which may reasonably be
drawn from it in the light most favorable to the verdict of the ju-
ry.‖ State v. Maestas, 2012 UT 46, ¶ 302, 299 P.3d 892 (internal quo-
tation marks omitted). We 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 con-
victed.‖ Id. (internal quotation marks omitted).
¶31 In attempting to carry that heavy burden, Nielsen sweep-
ingly asserts that the State ―produced no direct evidence on the
victim’s unwillingness to go with the defendant, and the best cir-
cumstantial evidence that they could come up with was that the
victim might have been leery or scared of the defendant.‖ The
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State offers two lines of response. First it asks us to stop short of
reaching the merits in light of Nielsen’s purported failure to mar-
shal the evidence—specifically, his failure to present, ―in compre-
hensive and fastidious order, every scrap of competent evidence
introduced at trial which supports the very findings the appellant
resists.‖ Chen v. Stewart, 2004 UT 82, ¶ 77, 100 P.3d 1177 (internal
quotation marks omitted). Second, and alternatively, the State
challenges Nielsen’s position on the merits, identifying evidence
in the record that it sees as sufficient to sustain an inference that
Trisha was taken against her will.
¶32 We reject the State’s first point but agree with its second.
Before addressing the merits of Nielsen’s challenge to the suffi-
ciency of the evidence, we first consider the State’s marshaling ar-
gument—acknowledging some dicta in our prior cases that ap-
pears to support it, but refining and clarifying the standard going
forward.
1. Marshaling
¶33 Our rules of appellate procedure prescribe standards for
the form, organization, and content of a brief on appeal. See UTAH
R. APP. P. 24. Some of the standards in rule 24 are sufficiently clear
and objective that the failure to follow them may result in the re-
jection of a noncompliant brief by our clerk’s office. A brief that
exceeds the rule’s limits on length, for example, would be rejected
by our clerk’s office, as would a brief that fails to include a table of
contents or statement of the standard of review. See id. 24(a)(2),
(5). Typically a party filing a noncompliant brief would be given
an opportunity to correct these sorts of deficiencies. But failure to
do so theoretically could result in our failure to reach the merits
on the basis of the party’s procedural default under rule 24.
¶34 Other standards in rule 24 are more subjective, and not
susceptible to rejection by the clerk’s office or to procedural de-
fault by the court. Such standards are often an outgrowth of a par-
ty’s burden of persuasion on appeal. Thus, rule 24 requires the
appellant’s brief to set forth ―the contentions and reasons of the
appellant with respect to the issues presented . . . with citations to
the authorities, statutes, and parts of the record relied on.‖ Id.
24(a)(9). Our clerk’s office makes no attempt to police this rule at
the outset. That assessment is left to the court. And we perform it
not as a matter of gauging procedural compliance with the rule,
but as a necessary component of our evaluation of the case on its
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STATE v. NIELSEN
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merits, as viewed through the lens of the applicable standard of
review. See State v. Thomas, 961 P.2d 299, 305 (Utah 1998) (―While
failure to cite to pertinent authority may not always render an is-
sue inadequately briefed, it does so when the overall analysis of
the issue is so lacking as to shift the burden of research and argu-
ment to the reviewing court.‖); Salt Lake Cnty. v. Butler, Crockett &
Walsh Dev. Corp., 2013 UT App 30, ¶ 37 n.5, 297 P.3d 38 (holding
that the appellant ―has not met its burden of persuasion on appeal
by adequately briefing a plausible claim‖).
¶35 Historically, our marshaling requirement was understood
to fall into the latter category. For many years, we conceived of
the responsibility to marshal the evidence supporting a chal-
lenged factual finding as a mere component of an appellant’s
broader burden of overcoming the weighty deference granted to
factual determinations in the trial court. Thus, when a party failed
to marshal and distinguish evidence supportive of a challenged
verdict or finding of fact, our response was not to decline to reach
the merits as a matter of default, but simply to affirm on the
ground that the appellant had failed to carry its heavy burden of
persuasion.
¶36 This version of the marshaling principle was announced in
our cases as early as 1961. See Charlton v. Hackett, 360 P.2d 176, 176
(Utah 1961). We followed this approach consistently for several
decades thereafter. See, e.g., Nyman v. Cedar City, 361 P.2d 1114,
1115 (Utah 1961); Egbert & Jaynes v. R.C. Tolman Constr. Co., 680
P.2d 746, 747 (Utah 1984). We coined the term ―marshal[ing]‖ in
1985, see Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985), but
still continued to view marshaling as part of the overall burden
necessary to meet the clear error standard of review on appeal.
See, e.g., IFG Leasing Co. v. Gordon, 776 P.2d 607, 616–17 (Utah
1989).
¶37 Over time our caselaw occasionally has migrated in the
other direction—toward the hard-and-fast default notion of a pro-
cedural rule. Instead of noting an appellant’s failure to marshal as
a step toward concluding that it had failed to establish clear error,
we sometimes have identified a marshaling deficiency as a
ground for an appellant’s procedural default—citing a lack of
marshaling as a basis for not reaching the merits. See, e.g., United
Park City Mines Co. v. Stichting Mayflower Mountain Fonds, 2006 UT
35, ¶¶ 38, 41, 140 P.3d 1200.
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¶38 Over a similar span of time, we also added some additional
teeth to the rule. Thus, while rule 24(a)(9) itself (adopted in 1999)
speaks only of ―marshal[ing] all record evidence that supports the
challenged finding,‖ our caselaw has sometimes extended this
principle to require an appellant to ―present, in comprehensive
and fastidious order, every scrap of competent evidence intro-
duced at trial which supports the very findings the appellant re-
sists,‖ and to do so in a manner in which he ―temporarily re-
move[s] [his] own prejudices and fully embrace[s] the adversary’s
position‖ by assuming the role of ―devil’s advocate.‖ Chen, 2004
UT 82, ¶¶ 77–78 (internal quotation marks omitted).
¶39 Our commitment to the hard-and-fast default notion of the
marshaling rule has been less than complete. Sometimes we have
openly overlooked a failure to marshal and proceeded to the mer-
its. See, e.g., State v. Green, 2005 UT 9, ¶¶ 12–13, 108 P.3d 710. In
many other cases, moreover, we have reverted to our earlier con-
ception of marshaling, and disposed of the case on its merits de-
spite an alleged failure to marshal ―every scrap‖ of contrary evi-
dence. And in all events we have declined to state a limiting prin-
ciple, leaving the question of whether to treat marshaling as a ba-
sis for a default or instead as a component of the burden of per-
suasion purely a matter of our discretion. See Martinez v. Media-
Paymaster Plus/Church of Jesus Christ of Latter-day Saints, 2007 UT
42, ¶¶ 19–20, 164 P.3d 384 (noting that parties risk forfeiting their
challenges to factual questions when they fail to marshal but sus-
taining the court of appeals’ choice to resolve the case on its mer-
its because ―[t]he reviewing court . . . retains discretion to consider
independently the whole record and determine if the decision be-
low has adequate factual support‖).
¶40 The time has come to reconcile and regularize our cases in
this field. In so doing, we recognize and reiterate the importance
of the requirement of marshaling. It is a boon to both judicial
economy and fairness to the parties. See Chen, 2004 UT 82, ¶ 79.
Thus, an appellant who seeks to prevail in challenging the suffi-
ciency of the evidence to support a factual finding or a verdict on
appeal should follow the dictates of rule 24(a)(9), as a party who
fails to identify and deal with supportive evidence will never per-
suade an appellate court to reverse under the deferential standard
of review that applies to such issues. That said, we now conclude
that the hard-and-fast default notion of marshaling is more prob-
lematic than helpful—particularly when compounded by the
heightened requirements of our caselaw (to present ―every scrap‖
of evidence and to play ―devil’s advocate‖) and our retention of
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STATE v. NIELSEN
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discretion to disregard a marshaling defect where we deem it ap-
propriate.
¶41 We therefore repudiate the default notion of marshaling
sometimes put forward in our cases and reaffirm the traditional
principle of marshaling as a natural extension of an appellant’s
burden of persuasion. Accordingly, from here on our analysis will
be focused on the ultimate question of whether the appellant has
established a basis for overcoming the healthy dose of deference
owed to factual findings and jury verdicts—and not on whether
there is a technical deficiency in marshaling meriting a default.
¶42 In so holding, we do not mean to minimize the significance
of our longstanding requirement of marshaling. Instead we aim
only to clarify it and put it in proper perspective. Thus, we reiter-
ate that a party challenging a factual finding or sufficiency of the
evidence to support a verdict will almost certainly fail to carry its
burden of persuasion on appeal if it fails to marshal. Our point is
only that that will be the question on appeal going forward. The
focus should be on the merits, not on some arguable deficiency in
the appellant’s duty of marshaling.
¶43 Too often, the appellee’s brief is focused on this latter
point, and not enough on the ultimate merits of the case. To en-
courage the latter and discourage the former, we also hereby re-
pudiate the requirements of playing ―devil’s advocate‖ and of
presenting ―every scrap of competent evidence‖ in a ―comprehen-
sive and fastidious order.‖ Supra ¶ 38. That formulation is no-
where required in the rule. And its principal impact on briefing
has been to incentivize appellees to conduct a fastidious review of
the record in the hope of identifying a scrap of evidence the appel-
lant may have overlooked. That is not the point of the marshaling
rule, and will no longer be an element of our consideration of it.
¶44 Under this standard as now clarified, we reject the State’s
request that we treat Nielsen’s failure to marshal every scrap of
evidence supporting the jury’s verdict as a stand-alone basis for
rejecting his challenge to his kidnapping conviction. We proceed
instead to the merits of Nielsen’s argument, while emphasizing
that our assessment of his claim on appeal is certainly affected
(and greatly undermined) by the overbroad assertions in his brief
regarding the absence of evidence in the record and by his general
failure to identify and deal with that evidence.
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2. Sufficiency of the evidence
¶45 Nielsen vastly undersold the record evidence supporting
his conviction of kidnapping. The evidence was largely circum-
stantial. But it was nonetheless sufficient.
¶46 When we consider an insufficiency of the evidence claim,
―we review the evidence and all inferences which may reasonably
be drawn from it in the light most favorable to the verdict of the
jury.‖ Maestas, 2012 UT 46, ¶ 302 (internal quotation marks omit-
ted). We may reverse a verdict ―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 con-
victed.‖ Id. (internal quotation marks omitted).
¶47 Nielsen challenges the verdict on kidnapping with the
sweeping assertion that ―the state produced no direct evidence on
the victim’s unwillingness to go with the defendant, and the best
circumstantial evidence that they could come up with was that the
victim might have been leery or scared of the defendant.‖ That
assertion falls far short under the above-noted deferential stand-
ard of review. Direct evidence is not required. Sustainable ver-
dicts are entered every day on the sole basis of circumstantial evi-
dence. State v. John, 586 P.2d 410, 411–12 (Utah 1978) (noting that
circumstantial evidence ―is recognized as a valid method of ascer-
taining the truth‖).1 And where the jury returns a verdict that is
reasonably sustained by circumstantial evidence and the infer-
ences drawn from it, we must uphold the jury’s verdict.
1 See also United States v. Langford, 647 F.3d 1309, 1319 (11th Cir.
2011) (―[C]ircumstantial evidence may be used to establish an el-
ement of a crime, even if the jury could draw more than one rea-
sonable inference from the circumstantial evidence, and in judg-
ing sufficiency of the evidence, we apply the same standard
whether the evidence is direct or circumstantial.‖); State v. Mitch-
ell, 343 S.W.3d 381, 391 (Tenn. 2011) (―The standard of review is
the same whether the conviction is based upon direct or circum-
stantial evidence, or a combination of both.‖) (internal quotation
marks omitted); State v. Bonner, 955 A.2d 625, 635 (Conn. App. Ct.
2008) (―[I]t does not diminish the probative force of the evidence
that consists, in whole or in part, of evidence that is circumstantial
rather than direct.‖) (internal quotation marks omitted).
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STATE v. NIELSEN
Opinion of the Court
¶48 That is certainly the case here. The jury heard testimony
that Nielsen repeatedly followed Trisha home from school; that
Trisha consistently responded to this attention with fear, which
she expressed to her friends, church leader, mother, and sister;
that she repeatedly asked to be picked up from school rather than
walk home because she was afraid of Nielsen; that on the morning
of her disappearance, she was wearing clothing that she would
not have worn if she had intended to meet someone on her walk;
and that Trisha’s remains showed signs of blunt force injuries in-
flicted before her death.
¶49 All of this is relevant circumstantial evidence suggesting
that Trisha would not have willingly gone anywhere with Niel-
sen. And we must view that evidence ―and all reasonable infer-
ences drawn therefrom in a light most favorable to the verdict.‖
Maestas, 2012 UT 46, ¶ 177 (internal quotation marks omitted). We
accordingly affirm, as we cannot conclude in light of this evidence
that ―reasonable minds must have entertained a reasonable
doubt‖ about the essential elements of the kidnapping charge. Id.
(internal quotation marks omitted).
C. Bindover on the Aggravated Murder Charge
¶50 In challenging the bindover on the aggravated murder
charge, Nielsen asserts that there was no evidence of any aggra-
vating elements presented at the preliminary hearing—
specifically, that there was no evidence to suggest that Trisha was
taken unwillingly, in a manner supporting the kidnapping aggra-
vator. This claim overlaps substantially with the one addressed to
the sufficiency of the evidence to support the kidnapping convic-
tion, addressed above. Supra ¶¶ 45–49. But Nielsen’s focus here is
on the sufficiency of the circumstantial evidence presented at the
preliminary hearing, and on the decision to bind him over for tri-
al.
¶51 We affirm. The evidentiary standard on bindover is low.
All that is required is ―believable evidence of all the elements of
the crime charged.‖ State v. Clark, 2001 UT 9, ¶ 15, 20 P.3d 300 (in-
ternal quotation marks omitted). And the magistrate’s assessment
of that evidence is deferential, viewed in the light most favorable
to the prosecution and with all reasonable inferences given to the
prosecution. Id. ¶ 10.
¶52 The circumstantial evidence presented at the preliminary
hearing appears to be the same circumstantial evidence presented
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Opinion of the Court
to the jury. Thus, our rejection of Nielsen’s challenge to his kid-
napping conviction necessarily requires the rejection of his chal-
lenge to the magistrate’s bindover decision. That is because the
evidentiary standard at bindover is much lower than it is at trial.
If there was enough evidence to convict Nielsen beyond a reason-
able doubt, there was certainly enough evidence to sustain the
bindover decision. This is consistent with our general rule that
any alleged defect in a bindover decision is cured by a subsequent
guilty verdict on the same charge, foreclosing an appeal on the
bindover decision. Thomas v. State, 2002 UT 128, ¶ 7, 63 P.3d 672
(―[A]n error at the preliminary stage is cured if the defendant is
later convicted beyond a reasonable doubt.‖) (internal quotation
marks omitted); State v. Morgan, 2001 UT 87, ¶ 7 n.1, 34 P.3d 767
(―[C]onviction renders any defect [in a bindover order] moot.‖).
D. Merger
¶53 Nielsen’s last set of claims concern the doctrine of merger.
First, he claims that his kidnapping conviction merged with his
conviction on aggravated kidnapping, and that the former convic-
tion should accordingly be vacated. Second, he also contends that
his convictions on aggravated kidnapping, kidnapping, and on
two counts of desecration of a body merged into his aggravated
murder conviction, and should likewise be vacated.
¶54 The State confesses error as to the kidnapping conviction. It
acknowledges that kidnapping and aggravated kidnapping
merged, and thus that the former should have been vacated. On
that charge we accordingly reverse and remand to allow the con-
ceded error to be corrected.
¶55 That leaves the question whether desecration of a body and
aggravated kidnapping were lesser-included offenses that merged
with the aggravated murder conviction. This question was not
preserved below, so it comes to us on plain error review. To re-
verse on plain error grounds we would have to conclude that
there was an error, that the error was obvious, and that the error
was prejudicial. Harris, 2012 UT 77, ¶ 24. We reverse and vacate
the aggravated kidnapping conviction on plain error grounds, but
affirm the sentence of life without parole on the aggravated mur-
der conviction in light of Nielsen’s failure to articulate any con-
crete grounds for concluding that the merger error prejudiced his
sentence.
15
STATE v. NIELSEN
Opinion of the Court
¶56 Upon careful review of the record, it is apparent that only
the kidnapping convictions—and not the desecration counts—
were presented as aggravators at the guilt stage. Desecration of a
human body did not qualify as a statutory aggravator under the
law at the time of defendant’s crimes, Utah Code section 76-5-
202(1) (2000), and it was not presented to the jury as such. Evi-
dence of Nielsen’s prior assault conviction was introduced to the
jury after it had convicted Nielsen of aggravated murder.2 Thus,
the only statutory aggravators at issue when the jury was decid-
ing whether Nielsen was guilty of aggravated murder were the
kidnapping charges.
¶57 Because the desecration counts do not implicate the doc-
trine of merger, the only merger question presented is whether
Nielsen’s aggravated kidnapping charge merged with his aggra-
vated murder conviction. As Nielsen indicates, our cases sustain
the conclusion that these two crimes should properly have
merged. See State v. Shaffer, 725 P.2d 1301, 1312–14 (Utah 1986)
(aggravated robbery merges with aggravated murder where the
former is predicate offense offered as sole aggravator sustaining
2 Nielsen alludes generally to a concern regarding the propriety
of the sentencing jury’s consideration of his prior assault convic-
tion as an aggravator in the form of a conviction for a violent felo-
ny, noting that by the time of sentencing that felony had been ―re-
duced to a class A misdemeanor under Utah Code . . . 76-3-402.‖
But he stops short of asserting that point as a ground for question-
ing his sentence on aggravated murder. Instead he raises the point
only as a lead-in to his conclusion that the prior assault conviction
should not be assumed to have been ―used as the aggravating cir-
cumstance that was an essential element in proving aggravated
murder.‖ We agree with Nielsen on that point, which seems ap-
parent given that the prior violent felony was not even introduced
to the jury until after the guilt phase. Thus, we do not and need
not reach a legal question that has not been presented by Nielsen
and is not properly before us, which is whether a past crime’s sta-
tus as a ―convict[ion]‖ of a ―felony involving the use or threat of
violence to a person‖ under Utah Code section 76-5-202(1)(h)
(2000) is to be assessed as of the time of the original conviction or
should instead be reassessed in light of a subsequent reduction
under Utah Code section 76-3-402.
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Opinion of the Court
the latter conviction); State v. Ross, 2007 UT 89, ¶ 61, 174 P.3d 628
(holding that ―an underlying felony that constitutes the aggravat-
ing circumstance merges with the conviction for aggravated mur-
der‖). The principle established in Shaffer and Ross is precisely ap-
plicable here. Because the aggravated kidnapping conviction was
the sole aggravator presented to the jury at the guilt phase, the
aggravated kidnapping offense was ―established by proof of the
same or less than all the facts required to establish the commission
of the offense charged.‖ UTAH CODE § 76-1-402(3)(a). For that rea-
son Nielsen’s aggravated kidnapping conviction should have
merged with his aggravated murder conviction.
¶58 The failure to identify this problem was a clear error. Our
caselaw on the merger of predicate offenses with aggravated
crimes is clear and well-established. And given that the merger
problem is straightforward (not fact-intensive or complex) and
could not conceivably have been ignored on strategic grounds, we
deem it sufficient to sustain the conclusion that it should have
been obvious to the court and parties below. See State v. Gornick,
130 P.3d 780, 783 (Or. 2006) (identifying the following considera-
tions as suggesting that an error is ―plain‖: that the error is one of
law; that it is ―obvious, not reasonably in dispute‖; that it ―ap-
pears on the face of the record,‖ meaning that the reviewing court
does not need to ―go outside the record to identify the error or
choose between competing inferences,‖ such as a strategy of the
parties; and that ―the facts constituting the error are irrefutable‖)
(internal quotation marks omitted). The prejudice from such error
is also obvious: Nielsen’s conviction of aggravated kidnapping
stands separate from his conviction on aggravated murder, as
does his separate sentence of fifteen years to life.
¶59 Because the independent conviction and sentence are plain-
ly prejudicial to Nielsen, we reverse and vacate Nielsen’s convic-
tion and sentence on aggravated kidnapping, while leaving undis-
turbed his conviction and sentence on aggravated murder.3 We
3 Theoretically, an error in entering a separate conviction on a
predicate offense could also have an impact on the sentence for
the aggravated crime. But Nielsen has not alleged, much less es-
tablished, a basis for that kind of prejudice, or requested a remand
for resentencing on aggravated murder on such ground. Perhaps
that is understandable, as our cases generally consider an error
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STATE v. NIELSEN
Opinion of the Court
also affirm Nielsen’s two convictions for desecration of a human
body.
——————
regarding a nonmerged predicate offense to be harmless as to the
sentence on the greater offense, see State v. Hill, 674 P.2d 96, 98
(Utah 1983) (holding that theft conviction merged with aggravat-
ed robbery but declining to remand for resentencing on aggravat-
ed robbery), and the lack of a conviction on the predicate offense
would not have foreclosed the sentencing jury from considering
the facts establishing that offense. UTAH CODE § 76-3-207(2)(a) (―In
capital sentencing proceedings, evidence may be presented on
. . . the nature and circumstances of the crime . . . .‖). In any event,
we need not and do not reach these issues here, as they are not
presented.
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