State v. Prater , 834 Utah Adv. Rep. 14 ( 2017 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 13IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
ANTHONY JAMES PRATER,
Appellant.
No. 20130748
Filed March 7, 2017
On Direct Appeal
Third District, Salt Lake
The Honorable Robin W. Reese
No. 071909449
Attorneys:
Sean D. Reyes, Att’y Gen., Daniel W. Boyer, Asst. Solic. Gen.,
Salt Lake City, for appellee
Joel J. Kittrell, Kristina H. Ruedas, Salt Lake City, for appellant
JUSTICE PEARCE authored the opinion of the Court
in which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE DURHAM, and JUSTICE HIMONAS joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 A jury convicted defendant Anthony James Prater of
aggravated murder and obstructing justice, both first-degree
felonies. The jury also convicted Prater on five counts of discharging
a firearm from a vehicle, a third-degree felony. At trial, three
witnesses testified that Prater confessed to the crime, and one
witness testified that he was there when Prater pulled the trigger.
Forensic evidence supported the eye-witness’s trial testimony. The
district court also admitted a letter Prater had authored that
STATE v. PRATER
Opinion of the Court
suggested he had committed the murder. The district court
sentenced Prater to life in prison without the possibility of parole.
Prater appeals his convictions, arguing that much of the witness
testimony was inherently improbable and therefore the State did not
present evidence sufficient to permit a reasonable jury to find him
guilty on any of the counts.
¶2 We affirm Prater’s convictions.
BACKGROUND 1
¶3 In the early morning of November 27, 2007, T.W. drove
Vincent Samora to a 7-Eleven. When she parked, T.W. noticed a
silver Jeep in the parking lot.
¶4 Ryan Sheppard, the Jeep’s owner, sat in the driver’s seat.
Sheppard was accompanied by his friend Prater. Sheppard
recognized Samora, who was sitting in T.W.’s car, and pointed him
out to Prater. Prater had been searching for Samora for months. In
2005, one of Prater’s colleagues, Christopher Archuletta, shot Samora
in the stomach. Samora later identified Archuletta as the shooter to
police and testified at Archuletta’s preliminary hearing. The State
anticipated calling Samora to testify at Archuletta’s upcoming trial.
Prater had been “waiting to get [Samora]” because of Samora’s
testimony.
¶5 After a few minutes in the parking lot, T.W. drove to
Samora’s house. The Jeep followed them. After T.W. parked on
Samora’s driveway, someone in the Jeep fired shots into T.W.’s car.
At least five bullets struck the car; one of the bullets killed Samora.
T.W. reported she saw two men in the Jeep.
¶6 After the shooting, Sheppard and Prater went to Donna
Quintana’s house. Prater lived with Quintana, who was his
girlfriend at the time. Sheppard and his girlfriend, Sherilyn Valdez,
also stayed at Quintana’s house. Sheppard, Quintana, and Valdez
later testified that upon hearing a local news channel report
Samora’s death, Prater celebrated by laughing, jumping up and
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1 “’On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.’ We
present conflicting evidence only as necessary to understand issues
raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346(citations omitted).
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down, and commenting that Samora was “sleeping with the fishes.”
Prater instructed Quintana to remove his belongings from the Jeep
and clean the vehicle.
¶7 Soon after hearing the news of Samora’s death, Prater left
for his cousin’s house with Sheppard and Quintana because he
became nervous that Quintana’s neighborhood was getting too
“hot.” Prater sent Quintana back to her neighborhood with specific
instructions to retrieve his gun and throw it into the Jordan River.
I. Evidence Presented at Trial
¶8 The State charged Prater with aggravated murder, a first-
degree felony, in violation of Utah Code section 76-5-202; obstructing
justice, also a first-degree felony, in violation of Utah Code section
76-8-306; and discharging a firearm from a vehicle, near a highway,
or in the direction of any person, building or vehicle, a third-degree
felony, in violation of Utah Code section 76-10-508.
A. Sheppard’s Testimony
¶9 At trial, Sheppard identified Prater as the shooter. Sheppard
testified that after he and Prater pulled out of the 7-Eleven parking
lot, Prater said, “Follow [Samora], I will get out and smash him.”
Sheppard also testified that shortly after pulling up to Samora’s
house, Prater fired shots from the Jeep’s window. Sheppard testified
that Prater laughed when he saw the news that Samora had been
killed. Sheppard recalled that Prater said “I knew I got him” and that
Samora was “sleeping with the fishes.”
¶10 Sheppard revealed that he had initially lied to police and
denied any involvement in Samora’s murder. Sheppard admitted
that the State had offered him reduced charges if he agreed to testify
against Prater. Sheppard also revealed a potential motive Sheppard
would have had to harm Samora: Sheppard had previously dated a
woman who—unbeknownst to Sheppard at the time—was married
to Samora. Sheppard also testified that Samora had once thrown a
retaliatory punch at him. Sheppard further testified that his current
girlfriend, Valdez, had previously dated Samora.
B. Quintana’s Testimony
¶11 Quintana testified that when Prater learned from the news
that Samora had been killed, Prater celebrated by jumping up and
down and exclaiming that Samora was now “sleeping with the
fishes.” Quintana testified that she cleaned the Jeep and retrieved
Prater’s items at his request. Quintana also testified that Prater told
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Opinion of the Court
her where to locate the gun used to kill Samora and that, upon his
request; she threw it into the Jordan River.
¶12 Quintana admitted that she “denied knowing anything
whatsoever” about the shooting in her first interview with police.
Quintana also testified that, in a second interview with police, she
did not “tell them the truth about the gun” and that only “half” of
what she said was truthful. Quintana admitted that at both the
second interview and the preliminary hearing, she had been
dishonest when she said, and then testified, that she had discarded a
“package” because she knew she had thrown a gun into the river.
On cross-examination, Quintana admitted she also lied at the
preliminary hearing when she told the court that Prater had told her
he was not involved in the shooting. She also confessed that, at the
preliminary hearing, she lied about being asked to clean the Jeep.
Quintana explained that she lied at the preliminary hearing because
she was “scared” after people on both Prater’s and Samora’s sides
threatened to kill her if she said anything. The jury heard that
Quintana was arrested for aggravated murder but, after she
promised to testify truthfully, she was charged only with obstruction
of justice.
C. Valdez’s Testimony
¶13 Valdez’s testimony corroborated Sheppard’s and Quintana’s
testimony regarding what happened at Quintana’s apartment after
the shooting. Valdez testified that Prater said he “got [Samora]” and
“unloaded . . . the whole clip.” Valdez testified that Prater told her
that he shot Samora and laughed about it. Valdez also remembered
Prater’s remark that Samora was “sleeping with the fishies.”
¶14 Valdez admitted that she lied to police during her first
interview by telling them that she and Sheppard had nothing to do
with the shooting and were not at Quintana’s home on the morning
of the shooting. At the first interview, the police told Valdez that she
was in danger of losing her children and going to prison because of
her involvement with the events. Valdez testified that in a second
police interview, after “[Sheppard] wasn’t anything to [her],” she
told the truth and explained what she saw and heard at Quintana’s
apartment after the shooting. The jury learned that Valdez faced no
charges at any point in this case.
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D. The Letter to Red
¶15 While Prater was in prison, a housing officer found and
collected a couple of envelopes outside Prater’s jail cell. When the
officer picked them up, Prater said, “give me my letters.” The officer
refused and kept them as evidence. One of the letters was addressed
to “Red,” the nickname for Prater’s fellow inmate, Marcus Crocker,
who had murdered a store clerk and, like Prater, would later receive
a life-without-parole sentence.
¶16 The letter to Red explained that Samora “was getting ready
to take the stand on [sic] [Prater’s] homie [Archuletta]. But he had
been hiding real good cause the homies was [sic] trying to find this
fool for months but couldn’t.” Prater wrote, “I already knew this was
probably going to be my only chance to get at this fool. So I like [sic]
f*** it, we followed his ass to his crib and that was that.”
¶17 In the letter, Prater admitted that he abandoned his gun in
an alley before returning to the house and told Quintana to retrieve
his items and clean the Jeep. Prater also recounted that he later
instructed Quintana to find the gun and dispose of it in the Jordan
River.
¶18 The state crime lab found Prater’s fingerprints on the letter
to Red. A handwriting expert who analyzed the letter testified that
he could “neither identify nor eliminate Prater from authoring [the
letter to Red] based on the known samples” of Prater’s writing.
E. Forensic Evidence
¶19 After the shooting, detectives found eight 9mm shell casings
strewn along the roadside near T.W.’s car. They found six bullet
holes in the car and recovered four bullets and some bullet
fragments. Lab results showed that the casings and bullets came
from the same gun.
¶20 At trial, a police detective testified that the location of bullet
holes on three sides of the car indicated that the shooter was moving.
Detectives determined that the shooter was likely the front-seat
passenger. The detective testified that if the driver were the shooter,
the driver would have been forced to either “shoot[] a passenger” or
“put a bullet through his right rear passenger window”—a result of
adjusting his aim while driving the moving vehicle. Furthermore,
had the driver been the shooter, the shell casings, which
semiautomatics generally eject to the right, would have ended up
inside the moving vehicle—not on the roadway where they were
found.
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F. Al-Rekabi’s Testimony
¶21 In jail, Prater reconnected with Ali Al-Rekabi, a fellow
inmate. Al-Rekabi also knew Sheppard from when they both lived at
a halfway house. When Prater discovered Al-Rekabi’s relationship
with Sheppard, he asked Al-Rekabi to write a statement that pinned
Samora’s murder on Sheppard. Prater drafted the statement and Al-
Rekabi transcribed it using his own words. Al-Rekabi testified that
the statement presented a “story” in which Sheppard asked for Al-
Rekabi’s help to find “a gun big enough to get the job done.”
¶22 Officers found a copy of the statement in Al-Rekabi’s cell.
Al-Rekabi later testified that the entire statement was a lie. He
testified that Prater told him what actually happened. According to
Al-Rekabi, Prater pointed an imaginary gun at his own head and
said, “I got [Samora] but nobody knows but [Sheppard].”
¶23 The jury convicted Prater on charges of aggravated murder,
obstructing justice, and discharge of a firearm from a vehicle. The
district court sentenced Prater to life in prison without the possibility
of parole for aggravated murder; one to fifteen years in prison for
obstruction of justice; and three to five years in prison for each
discharge of a firearm from a vehicle charge. Prater filed a notice of
appeal.
II. Prater’s Insufficiency Claim
¶24 Prater argues that the State failed to present sufficient
evidence at trial to support his convictions. He asserts that Sheppard,
Quintana, and Valdez provided “inherently improbable” testimony
because they “materially changed the testimony they had previously
given the police or given under oath in court only after the
prosecution promised them leniency in their own charges and
sentences related to the events in question.” Prater acknowledges he
did not preserve this challenge for appeal and asks us to apply the
plain error exception to the preservation rule.
¶25 We hear this claim under Utah Code section 78A-3-102(3)(i),
which confers jurisdiction over “appeals from the district court
involving a conviction or charge of a first degree felony or capital
felony.”
ISSUE AND STANDARD OF REVIEW
¶26 Prater contends that there was insufficient evidence to
support any of his convictions. Prater failed to preserve this issue
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because he did not move for directed verdict or otherwise challenge
the sufficiency of the evidence supporting the jury’s verdict.
¶27 We generally do not hear claims on appeal that were not
presented to the district court. State v. Holgate, 2000 UT 74, ¶ 11, 10
P.3d 346 (“[C]laims not raised before the trial court may not be
raised on appeal.”). A claim is preserved before the district court
“when it has been ‘presented to the district court in such a way that
the court has an opportunity to rule on [it].’” Patterson v. Patterson,
2011 UT 68, ¶ 12, 266 P.3d 828 (alteration in original) (citation
omitted). “[I]t is clear that as a general rule, a defendant must raise
the sufficiency of the evidence by proper motion or objection to
preserve the issue for appeal.” Holgate, 2000 UT 74, ¶ 16. “[T]he
preservation rule applies to every claim . . . unless a defendant can
demonstrate that ‘exceptional circumstances’ exist or ‘plain error’
occurred.” Id. ¶ 11 (citations omitted). Recognizing that his claim is
unpreserved, Prater argues that the district court plainly erred when
it submitted the question of Prater’s guilt to the jury based on the
State’s “inherently improbable evidence.”
¶28 “[T]o establish plain error [based on insufficient evidence], a
defendant must demonstrate first that the evidence was insufficient
to support a conviction of the crime charged and second that the
insufficiency was so obvious and fundamental that the trial court
erred in submitting the case to the jury.” Id. ¶ 17. Even if evidence is
insufficient, we will not find plain error unless the insufficiency was
“obvious and fundamental.” Id. An example of an obvious and
fundamental insufficiency is “the case in which the State presents no
evidence to support an essential element of a criminal charge.” Id.
¶29 Here, the court did not err, let alone plainly err, when it
permitted the jury to hear the case.
ANALYSIS
¶30 Prater asks us to set aside each of his convictions based on
an insufficiency of the evidence. Prater primarily argues that
Sheppard, Valdez, and Quintana offered “inherently improbable”
testimony because they each received favorable treatment in
exchange for testifying and because their testimony changed
substantially after they accepted the State’s offer. Without these three
witnesses’ testimony, Prater concludes, “there is no direct or
circumstantial evidence upon which the defendant could be
convicted by a reasonable jury and beyond a reasonable doubt.” In
other words, Prater contends that because the trio of witnesses
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Opinion of the Court
changed their testimony after receiving deals from the State, the
testimony they each offered at trial was inherently dubious to the
point that no reasonable jury could have relied on it to convict him.
¶31 As a general rule, the trial judge determines “whether . . .
evidence is admissible,” UTAH R. EVID. 104(a), whereas the finder of
fact—in this case a jury—determines whether evidence is credible.
See State v. Workman, 852 P.2d 981, 984 (Utah 1993); UTAH CODE
§ 78B-1-128(4) (“The jury is the exclusive judge of credibility.”). Thus
when conflicting or disputed evidence is presented at a jury trial, the
“jury serves as the exclusive judge of both the credibility of the
witnesses and the weight to be given particular evidence.” Workman,
852 P.2d at 984 (emphasis added).
¶32 We are not normally in the business of reassessing or
reweighing evidence, and we resolve “conflicts in the evidence in
favor of the jury verdict.” Id. But we have carved out an exception
from this general rule. “In some unusual circumstances” we will
conclude that the testimony presented to the jury was so unreliable
that it cannot form the basis of a conviction. Id. The lead opinion in
Workman posited that such an unusual circumstance exists when
witness testimony “is so inconclusive or inherently improbable that
it could not support a finding of guilt beyond a reasonable doubt.”
Id. In dicta, Workman’s lead opinion suggested that to be inherently
improbable the testimony must describe an action that was
physically impossible or must be manifestly false “without any
resort to inferences or deductions.” Id.
¶33 In State v. Robbins, we expanded Workman’s definition of
inherently improbable testimony to “include circumstances where a
witness’s testimony is incredibly dubious and, as such, apparently
false.” 2009 UT 23, ¶ 18, 210 P.3d 288. 2 We criticized the court of
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2 We also restated Workman, opining and explaining that witness
testimony is inherently improbable “if it is (1) physically impossible
or (2) apparently false.” Robbins, 2009 UT 23, ¶ 16, 210 P.3d 288.
“Testimony is physically impossible when what the witness claims
happened could not have possibly occurred.” Id. ¶ 17. For example,
testimony that an event “occurred on the moon” qualifies as
physically impossible. Id. Testimony is “apparently false” when a
“witness presents inherently contradictory testimony that is
(continued . . .)
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appeals’ definition of inherently false, finding it unduly narrow
because it required that the challenged testimony be “improbable by
its very nature.” Id. ¶ 17 (citing State v. Robbins, 2006 UT App 324,
¶ 17, 142 P.3d 589). We also criticized its holding that “the inherently
improbable testimony must . . . go to the very core of the offense.”
Id. (omission in original) (citation omitted). We corrected the court of
appeals and clarified that “[s]ubstantial inconsistencies in a sole
witness’s testimony, though not directed at the core offense, can
create a situation where the prosecution cannot be said to have
proven the defendant’s guilt beyond a reasonable doubt.” Id.; see also
Campbell v. State, 732 N.E.2d 197, 207 (Ind. Ct. App. 2000) (finding
testimony inherently improbable when it runs so “counter to human
experience” that “no reasonable person could believe” it). We held
that only in instances “where (1) there are material inconsistencies in
the testimony and (2) there is no other circumstantial or direct
evidence of the defendant’s guilt” may the district court “reevaluate
the jury’s credibility determinations.” Robbins, 2009 UT 23, ¶ 19. In
such a case, the district court may find that the testimony is
apparently false.
¶34 Applying these principles in Robbins, this court held that a
child’s “testimony was so inherently improbable that the trial court
had discretion to disregard it when considering whether sufficient
evidence supported Robbins’ conviction.” Id. ¶ 13. In Robbins, a child
accused Robbins, her stepfather, of sexual abuse. Id. ¶ 1. The child’s
testimony “suffered from multiple inconsistencies,” which she tried
to cover up with patently false statements. Id. ¶¶ 8, 22. For example,
when attorneys asked why the child first said the abuse occurred
when she was nine then changed her story to seven, she said she had
a hearing problem, “a fact objectively not true.” Id. ¶ 8. The child
also “changed the description of what she was wearing at the time of
the alleged incident.” Id. Additionally, she gave conflicting
testimony at trial. When asked if Robbins “ever spoke to her about
the incident, she replied, ‘Not that I remember. I think that maybe once
he might have said that if I ever told anyone he would do it again or he
would hit me more.’” Id. ¶ 9. Later in her testimony, the child
explained she did not tell anyone about the abuse, “[b]ecause I had
always been told that if I told anyone about him abusing me he
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equivocal or the result of coercion, and there is a complete lack of
circumstantial evidence of guilt.” Id. ¶ 18 (citation omitted).
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Opinion of the Court
would abuse me more, or he would threaten to kill my dog, or
something like that.” Id. (alteration in original). Furthermore, the
child explained she did not report her abuse to two DCFS
investigators because she was afraid “because somebody told me
there was going to be someone hiding in the closet and listening to
everything that I said.” Id. However, “the first DCFS interview took
place in a room without a closet and was conducted before Robbins
and Mother were informed of the allegations, so neither would have
had the opportunity to tell her that someone would record her
conversation.” Id.
¶35 We held that “[the child’s] inconsistent accounts regarding
the extent of the physical abuse she suffered, her age when the abuse
occurred, and what she was wearing at the time of abuse may alone
be insufficient to invoke the inherent improbability exception.” Id.
¶ 22. We suggested that a reasonable jury could still have credited
the child’s testimony even with the multiple inconsistencies because
it might recognize that children may not be able “to identify with a
high degree of reliability, and sometimes not at all, when an event in
the past took place.” Id. (citation omitted). We concluded, however,
that “the patently false statements that [the child] made to cover up”
the inconsistencies in her testimony were “sufficient to allow the
court to reassess her credibility.” 3 Id.
¶36 Another factor that motivated this Court to find an unusual
circumstance allowing a departure from the general rule was that the
child’s testimony was the sole evidence supporting Robbins’ guilt.
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3 The child’s testimony suffered from other inconsistencies.
Father, who had divorced Mother in part because of an affair
between Robbins and Mother, “made a complaint to DCFS, alleging
that Robbins was verbally and physically abusing [the child].”
Robbins, 2009 UT 23, ¶¶ 3–4. When a DCFS investigator first asked
the child about physical abuse, she told the investigator that Robbins
never hit her. Id. ¶ 10. Two years and a couple of interviews after the
first interview, the child’s story had evolved into allegations that
about once a week for four years, Robbins would enter her room,
pull a book from the shelf, and hit her with it. Id. “Though these
allegations of physical abuse do not bear directly on the alleged
incident of sexual abuse, they reflect the pattern of inconsistency
pervading [the child]’s testimony.” Id.
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Id. ¶ 1. We reasoned that because the child’s testimony was fraught
with inconsistencies, and since “no other evidence point[ed] to
Robbins’ guilt, these inconsistencies [were] sufficient to have
allowed the trial judge to reevaluate [the child]’s credibility.” 4 Id.
¶ 23.
¶37 Prater argues that Sheppard’s, Quinata’s, and Valdez’s
testimony are apparently false and inherently improbable. Prater
points out that all three witnesses gave pre-trial statements that
conflicted with their trial testimony. In pre-trial statements to police,
Sheppard and Valdez denied that Sheppard played any role in the
shooting. Quintana admitted that she originally lied to the police
when she told them that she had no knowledge whatsoever of
Samora’s death. Prater argues that these conflicting statements
qualify as “material inconsistencies” just as the statements that
caused us to disregard the child witness’s testimony in Robbins did.
¶38 This argument misreads Robbins. In Robbins, the child’s
additional patently false statements and not just her inconsistent
accounts, which could be explained by her age and lack of
sophistication, allowed the court to reassess her credibility. See id.
¶ 22. As noted above, we reasoned that inconsistencies in the child’s
testimony alone might not have rendered the child’s testimony
inherently improbable because a reasonable jury could have
attributed those inconsistencies to the child’s age and inability to
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4 The State asserts that “[t]his case stands nowhere near Robbins,”
in which one witness “provided the sole evidence of the defendant’s
guilt,” because “four witnesses provided corroborating testimony,”
and “[t]he corroboration among those accounts alone takes [Prater]’s
case outside of Robbins’s orbit.” We disagree. The question of
whether the State has presented evidence upon which a reasonable
jury could convict would not change if four witnesses offered
physically impossible testimony. To expand upon the example we
provided in Robbins, four witnesses’ testimony that an assault
occurred on the moon suffers from the same inherent improbability
as testimony offered by a single witness. While it is true that the lack
of corroborating evidence significantly influenced our decision,
Robbins should not be read as endorsing a view that a finder of fact
can reasonably rely on inherently improbable evidence if the State
introduces enough of it.
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accurately identify when an event took place. See id. It was the
inconsistencies in the child’s testimony plus the patently false
statements the child made plus the lack of any corroboration that
allowed this court to conclude that insufficient evidence supported
Robbins’s conviction.
¶39 Similarly, here, the inconsistencies in Sheppard’s,
Quintana’s, and Valdez’s accounts by themselves are “insufficient to
invoke the inherent improbability exception.” Id. The jury learned
that Sheppard, Quintana, and Valdez all made statements to police
shortly after the shooting that contradicted their trial testimony.
Prater fails to mention that each witness admitted at trial that he or
she initially lied to police. Additionally, Quintana testified before the
jury that she withheld information at the preliminary hearing only
because she was afraid of Prater’s or Samora’s associates retaliating
against her. That three trial witnesses who were tied to events
surrounding a murder would deny their involvement when initially
interviewed by the police does not run so counter to human
experience that it renders their testimony inherently improbable. In
other words, the three witnesses’ pre-trial inconsistent statements do
not render their testimony “apparently false.” The question of which
version of their stories was more credible is the type of question we
routinely require juries to answer.
¶40 Prater further argues that the witnesses’ testimony is
especially dubious because each witness “received favorable
reductions in their charges or sentencing.” He notes that Sheppard
and Quintana received lighter sentences in exchange for favorable
testimony.
¶41 We reject the argument that Sheppard’s and Quintana’s plea
deals automatically render their testimony apparently false. 5
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5 In addition, Prater argues that Valdez lied when she testified
that Prater was solely responsible for the murder, thus shielding
Sheppard’s involvement. Indeed, Valdez testified that she lied in her
first interview with police after police threatened her that she may
go to prison for her involvement in the shooting. Valdez also
testified that at a second interview, she told the police the truth and
revealed her and Sheppard’s involvement. Valdez testified that her
second interview and testimony reflected the truth. The jury was
well positioned to consider Valdez’s explanation for her shifting
(continued . . .)
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Whether a witness testifies truthfully in light of favorable treatment
offered by the State goes to the weight and credibility of the
testimony. See State v. Powell, 2007 UT 9, ¶ 32, 154 P.3d 788 (holding
that evidence showing a witness offered testimony in return for a
plea bargain attacked only general witness credibility). “The jury is
the exclusive judge of [witness] credibility.” UTAH CODE § 78B-1-
128(4). And we will not act as a second trier of fact. State v. Boyd,
2001 UT 30, ¶ 16, 25 P.3d 985; see also White v. State, 706 N.E.2d 1078,
1080 (Ind. 1999) (refusing to reassess the jury’s credibility
determinations when the “jury had the opportunity to determine the
credibility of [the] witnesses in light of the incentives”). Any leniency
the witnesses received in exchange for testimony was solidly before
the jury when it made its credibility determinations. Prater’s counsel
had every opportunity to attack the witnesses’ credibility because of
the plea deals and to argue accordingly in front of the jury. To be
clear, we do not foreclose the possibility that evidence of state-
offered incentives may bolster a defendant’s argument that the
testimony presented at trial was apparently false. But a plea deal by
itself does not come within shouting distance of successfully
demonstrating that a witness’s testimony is “apparently false” or
that it falls under any of the other labels we have used to describe
testimony that a reasonable jury could not rely upon to convict.
¶42 Prater also ignores a key consideration that led the Robbins
court to find that the witnesses’ inherently improbable testimony
was insufficient to support a conviction. In Robbins, “no other
circumstantial or direct evidence” supported the defendant’s guilt.
2009 UT 23, ¶ 19. Prater focuses solely on Sheppard’s, Quintana’s,
and Valdez’s testimony. By so doing, he fails to acknowledge the
substantial evidence the State presented that tied Prater to Samora’s
murder.
¶43 Significantly, Prater fails to address the handwritten letter to
Red found outside his cell, which tracks the testimony of Sheppard,
Valdez, and Quintana. Prater also ignores the corroborating forensic
evidence that the Jeep’s passenger likely fired the killing shot.
Finally, Prater does not mention Al-Rekabi’s testimony that Prater
confessed to Al-Rekabi that he had killed Samora and enlisted Al-
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story and to conclude which of her versions of events they believed.
The changed story, standing alone, does not render the testimony
inherently unreliable.
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Rekabi’s help to write a false statement pinning the crime on
Sheppard. 6 In light of this evidence, there was no basis for the
district court to conclude that this case presented the type of unusual
circumstance that animated us to action in Robbins and to therefore
depart from the usual course of allowing the jury to assess the
credibility of witness testimony. 7
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6 Failure to marshal this evidence violates rule 24 of our Rules of
Appellate Procedure. Rule 24 sets forth “standards for the form,
organization, and content of a brief on appeal.” State v. Nielsen, 2014
UT 10, ¶ 33, 326 P.3d 645; UTAH R. APP. P. 24. It provides that “[a]
party challenging a fact finding must first marshal all record
evidence that supports the challenged finding.” UTAH R. APP. P.
24(a)(9). In Nielsen, we repudiated the hard-and-fast notion of
dismissing a claim based solely on “a technical deficiency in
marshaling.” 2014 UT 10, ¶¶ 37, 41.
This said, we reiterate what we said in Nielsen, that
an appellant who seeks to prevail in challenging the
sufficiency 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 persuade an appellate
court to reverse under the deferential standard of
review that applies to such issues.
Id. ¶ 40. We focus on the “question of whether the appellant has
established a basis for overcoming the healthy dose of deference
owed to . . . jury verdicts.” Id. ¶ 41. Prater does not marshal “all
record evidence that supports the challenged finding.” UTAH R. APP.
P. 24(a)(9). He therefore fails to carry his heavy burden of persuasion
required to overcome the “healthy dose of deference owed to . . . jury
verdicts.” Nielsen, 2014 UT 10, ¶ 41.
7 We remind the appellate bar that counsel faced with trouble
finding an argument that is not wholly frivolous may submit an
Anders brief. The United States Supreme Court established in Anders
v. California that appointed defense counsel must support an
indigent client’s appeal to the best of her ability to protect her client’s
constitutional rights to fair process and substantial equality. 386 U.S.
738 (1967). If, after a “conscientious examination” of a defendant’s
case, counsel finds the “case to be wholly frivolous,” she should “so
(continued . . .)
14
Cite as: 2017 UT 13Opinion of the Court
CONCLUSION
¶44 The trial court did not err—let alone plainly err—when it
submitted Prater’s case to the jury. The inconsistencies between
Sheppard’s, Quintana’s, and Valdez’s pretrial statements and in-
court testimony do not render their testimony apparently false.
Moreover, ample additional evidence supports each of Prater’s
convictions. We affirm.
_____________________________________________________________
advise the court and request permission to withdraw.” Id. at 744. The
withdrawal request must “be accompanied by a brief referring to
anything in the record that might arguably support the appeal” and
relevant legal authorities. Id. “A copy of counsel’s brief should be
furnished the indigent and time allowed him to raise any points that
he chooses . . . .” Id.
15