State v. Hosman , 2021 UT App 103 ( 2021 )

2021 UT App 103THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
AARON DANIEL HOSMAN,
Appellant.
Opinion
No. 20190589-CA
Filed September 30, 2021
Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 171906533
Janet Lawrence, Attorney for Appellant
Sean D. Reyes and Daniel L. Day,
Attorneys for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN FORSTER and
SENIOR JUDGE KATE APPLEBY concurred. 1
HAGEN, Judge:
¶1 Aaron Daniel Hosman was convicted of first-degree
murder after he ran down a pedestrian with his car. Hosman
appeals that conviction, arguing the district court erred by
(1) denying his motion for mistrial after two state witnesses
allegedly opined on the intent element of the murder charge;
(2) denying his motion for a directed verdict, which challenged
the sufficiency of the evidence to establish the required mental
state on the murder charge; and (3) failing to remedy alleged
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
State v. Hosman
prosecutorial misconduct during closing arguments. We reject
all three challenges and affirm Hosman’s conviction.
BACKGROUND 2
The Offense
¶2 A carpet layer (the victim) and his coworker were driving
to a job site in Salt Lake City when they saw Hosman “beating” a
chihuahua, Buddy, at the corner of 4100 South and 3600 West in
West Valley City (the intersection). The abuse angered the victim
and made the coworker “sick to [his] stomach,” so they decided
to “confront the guy.” The coworker abruptly turned around
their SUV, drove back toward the intersection, and pulled over.
The two men left the SUV to “fuck [Hosman] up.”
¶3 At the street corner, the victim and the coworker
confronted Hosman, who was now holding Buddy under his
arm “like you would a football.” An eyewitness testified that she
saw the victim “was very escalated”—he “puffed out” his chest,
“balled up” his fists, and gave Hosman “a very intense stare.”
The two men “tried to instigate [Hosman] into coming at” them
by using “aggressive words.” One witness testified that the
victim threatened to “cut [Hosman] up into little pieces” if he
ever saw Hosman “hurt any animal again like that.” The two
men tried to block Hosman’s way, but Hosman was able to walk
to his car with Buddy and drive away from the intersection.
2. “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 (cleaned up).
20190589-CA 2 2021 UT App 103State v. Hosman
¶4 The victim and his coworker returned to their SUV and
continued toward their job site until the victim realized he was
missing a bag of methamphetamine (meth). Both the victim and
his coworker regularly used meth and had been preparing to
smoke the drug before they were sidetracked by seeing Hosman
hit Buddy. The men pulled over to the side of the road to search
the SUV for the meth.
¶5 Meanwhile, Hosman made a U-turn, headed back toward
the intersection, and pulled up alongside the victim and his co-
worker. Hosman yelled, “Come follow me, motherfucker!” then
continued driving. The two men “laughed it off” because “the
moment had passed” and their anger had dissipated; they
continued searching for the lost meth. Concluding he must have
dropped the bag during the earlier confrontation with Hosman,
the victim jumped out of the SUV and ran back to the
intersection to find the drugs.
¶6 When the men failed to follow him, Hosman made a
second U-turn and drove back toward the intersection. Now
driving west on 4100 South, Hosman approached the
intersection as the victim was in the 3600 West crosswalk in front
of one of the three northbound lanes. Hosman sped past slowing
traffic, “swerved” left into the oncoming 4100 South lanes, and
made a southbound, left-hand turn onto 3600 West. Rather than
turning into a southbound lane, Hosman cut across the
northbound lanes and struck the victim—without slowing down
or leaving any brake marks. Hosman’s car was traveling at
approximately thirty-five to forty miles per hour 3 when it
3. Hosman admitted in a police interview that he was travelling
thirty-five to forty miles per hour. A witness estimated that
Hosman’s car was travelling around forty miles per hour. An
accident reconstructionist later determined that the car was
(continued…)
20190589-CA 3 2021 UT App 103State v. Hosman
“clipped [the victim’s] legs out from underneath him.” The
victim “hit the windshield” with the back of his head, “bounced
off,” and was “propelled into the air forward,” flipping “head
over heels.” The victim struck a telephone pole approximately
fifty-four feet away and slumped to the ground. Within minutes
he was dead.
¶7 Hosman did not stop, call for help, or notify the police.
When he was apprehended by police three days later, he had
spray painted part of his car white, removed the smashed
windshield and identifying window stickers, changed the license
plate, replaced the distinctive mismatched rims, and concealed
the car under a tarp.
Motion for Mistrial
¶8 Relevant to this appeal, the State charged Hosman with
one count of first-degree murder with a dangerous weapon.
Before trial, Hosman filed a motion in limine to preclude the
State’s witnesses from opining on his intent. 4 Specifically,
Hosman argued that if a State witness were to opine on
Hosman’s intent, it would “constitute an impermissible legal
conclusion in violation of rules 701 and 704 of the Utah Rules of
Evidence.” At the final pretrial conference, the prosecutor agreed
that Hosman’s motion “was not in dispute.” The record does not
reflect the details of the agreement, but the State does not
(…continued)
travelling between twenty-four and thirty-six miles per hour
when it struck the victim.
4. “A motion in limine is a procedure for obtaining a ruling on
the admissibility of evidence prior to or during trial, but before
the evidence has been offered.” State v. Bermejo, 2020 UT App
142, ¶ 8 n.4, 476 P.3d 148 (cleaned up).
20190589-CA 4 2021 UT App 103State v. Hosman
dispute that the parties “reached a stipulation that a State
witness would not opine on Hosman’s intent.” 5
¶9 On the second day of trial, the State’s traffic accident
reconstructionist testified as an expert. The expert’s analysis
confirmed that Hosman’s car entered the intersection and struck
the victim traveling between twenty-four and thirty-six miles per
hour. The expert testified that “if the vehicle braked or turned
sharply, the wheels will leave rubber on the asphalt,” yet he saw
no “braking marks” from Hosman’s tires.
¶10 During cross-examination, defense counsel asked the
expert whether he would agree that the other officers had not
started processing the scene until he had arrived. The expert
responded, “Not really. We were just trying to get a gist of—
figure out which way—because there was a question of whether
this was intentional or an accident. And then we started
interviewing people and then we collaborate, ‘Okay, this is
going to be an intentional.’” Counsel did not object to this
testimony and continued the cross-examination.
¶11 The next day, the State called the case agent to testify as a
fact witness about the murder investigation. The case agent
explained that a “traffic investigator” team normally investigates
traffic accident fatalities and that “traffic investigators” and
“patrol officers” had initially responded because they believed it
was a “hit-and-run type accident.” The case agent, on the other
hand, was an investigator for the “major case squad.” He was
5. On the second day of trial, before the State’s medical examiner
testified, defense counsel reiterated that the State’s witnesses
could not opine on intent. The prosecutor instructed the medical
examiner “that he can’t say ‘intentional’” and explained that he
was not worried about such testimony from any other witness
“[o]ther than the ones that have already testified.”
20190589-CA 5 2021 UT App 103State v. Hosman
called out approximately an hour-and-a-half after the collision
occurred because the accident reconstruction team had gathered
information that “this is possibly not an accident, that this is
possibly an intentional hit-and-run situation to where the driver
of a vehicle had intentionally hit somebody and then left the
scene.” Defense counsel objected and moved for a mistrial. The
court deferred argument and its ruling on the motion until after
the State had completed its direct examination of the case agent.
The prosecutor then focused his questions on what occurred
after the case agent arrived on the scene.
¶12 Outside the jury’s presence, defense counsel argued that a
mistrial was warranted “based on some comments made by [the
case agent] in the very initial portion of his testimony.” Defense
counsel argued that the State violated the stipulation that no
State witness would opine on intent when it elicited testimony
from the case agent “that he had received some information that,
perhaps, this was not an accident, that it would be a potential—
that it was an intentional hit-and-run accident.” Defense counsel
noted that the expert had “also made a comment regarding
whether or not this was an intentional act or an accident.”
Defense counsel had not objected to that testimony but
explained that the case agent’s testimony was more objectionable
because he was the lead investigator, had been at every court
proceeding, and knew that the State’s witnesses were not
supposed to offer an opinion regarding Hosman’s intent.
¶13 The district court concluded that the case agent had not
opined on intentionality but testified “only that intentionality
was questioned, so that’s why and how they proceeded with
their investigation. And it’s also why and how the charges
[were] made as they [were].” The court further concluded that
the case agent’s testimony did not “overstep[] into a legal
conclusion or direct[] the jury to go one way or the other.” And it
found that the prosecutor “immediately addressed the issue to
ensure that the witness did not go further.” The court further
20190589-CA 6 2021 UT App 103State v. Hosman
concluded that nothing “would impair [Hosman’s] ability to
have a fair trial.” Nonetheless, the court offered to consider a
curative instruction should the defense find it helpful, but
defense counsel never requested one.
Directed Verdict Motion
¶14 Later, during cross-examination, the case agent agreed
with defense counsel that Hosman had repeatedly said during
his police interview that “he did not want to hit [the victim].”
After the State’s case in chief, defense counsel moved for a
directed verdict on the murder count, arguing that the State had
not met its burden to prove the intent required for murder, only
manslaughter. Specifically, the defense argued “the evidence
ha[d] been insufficient to establish that [Hosman] acted with a
reckless intent to have committed a murder” because witness
testimony was “inconsistent” regarding “where [the victim] was
in the intersection when he was struck” and “which lane
[Hosman] came from at the time that he made his turn.” The
court denied the motion, ruling that “the State has met its
burden to establish sufficient evidence from which a jury, acting
reasonably, could convict the defendant.”
Closing Arguments
¶15 In closing argument, the State asserted that Hosman was
guilty of murder with a dangerous weapon under any one of
three theories: (1) intentionally or knowingly taking a life; (2)
intending serious bodily injury while committing an act clearly
dangerous to life; and (3) knowingly engaging in conduct that
creates a grave risk of death while showing depraved
indifference. With respect to the third theory, the State argued
that “the best evidence of [Hosman’s] utter callousness and
complete indifference” was that “there are no tire skid marks.
[Hosman] didn’t brake.” Defense counsel did not object to this
argument.
20190589-CA 7 2021 UT App 103State v. Hosman
¶16 In rebuttal, the prosecutor focused on “two pieces of
evidence that can prove this case . . . beyond a reasonable
doubt.” First, he reminded the jury, “You saw the damage done
to this car. You know what caused that, [the victim’s] head. His
head. That’s how fast [Hosman] was going.” Second, the
prosecutor reiterated that “there [were] no tire skid marks. He
did not brake.” The prosecutor also addressed whether Hosman
took a sharp or wide turn before striking the victim. The
prosecutor explained that when “one is making a normal
left-hand turn, you continue and then you turn to your left, and
that’s a sharp turn.” He continued, “[I]n order to maintain the
speed that even [Hosman] says he was at, he couldn’t make that
kind of turn. I would submit to you that is evidence of the wide
turn, which is actually inside the sharp turn. But that’s how he
can maintain that speed that he needs in order to cause the body
to fly the distance that it flies.” Defense counsel did not object to
any of the rebuttal arguments.
¶17 The jury found Hosman guilty of first-degree murder.
Hosman appeals his conviction.
ISSUES AND STANDARDS OF REVIEW
¶18 Hosman makes three challenges on appeal. First, he
challenges the district court’s denial of his motion for a mistrial.
“We review the denial of a motion for a mistrial under an abuse
of discretion standard.” State v. Silva, 2019 UT 36, ¶ 36, 456 P.3d
718 (cleaned up).
¶19 Second, Hosman challenges the court’s denial of his
motion for a directed verdict on the murder charge. “We review
a trial court’s ruling on a motion for directed verdict for
correctness.” State v. Gonzalez, 2015 UT 10, ¶ 21, 345 P.3d 1168.
20190589-CA 8 2021 UT App 103State v. Hosman
¶20 Third, Hosman argues that the court failed to intervene
when, according to Hosman, the State committed prosecutorial
misconduct by mischaracterizing the evidence during closing
arguments. Because Hosman “raised no objection at trial, our
review is for plain error.” See State v. Hummel, 2017 UT 19, ¶ 105,
393 P.3d 314. Hosman must show that the prosecutor’s alleged
“missteps were so egregious that it [was] plain error for the
district court to decline to intervene sua sponte.” 6 Id. ¶ 110(cleaned up).
ANALYSIS
I. Witness Testimony
¶21 Hosman first argues that the district court should have
granted a mistrial after two State witnesses—the case agent and
the expert—allegedly opined on whether he acted with the
mental state required for murder. When improper testimony is
presented to the jury, the district court must determine whether
“the incident so likely influenced the jury that the defendant
cannot be said to have had a fair trial.” State v. Silva, 2019 UT 36,
¶ 36, 456 P.3d 718 (cleaned up). Under Utah law, “a mistrial is
not required where an improper statement is not intentionally
elicited, is made in passing, and is relatively innocuous in light
of all the testimony presented.” State v. Allen, 2005 UT 11, ¶ 40,
108 P.3d 730. But this standard, which relies on the district
court’s “advantaged position to determine the impact of
courtroom events on the total proceedings,” id. ¶ 39,presupposes that improper testimony has been presented. In this
6. “Sua sponte” is a Latin term meaning “on its own motion” or
“[w]ithout prompting or suggestion.” Sua Sponte, Black’s Law
Dictionary (9th ed. 2009).
20190589-CA 9 2021 UT App 103State v. Hosman
case, the district court ruled that the challenged testimony was
not improper. We agree with that assessment.
¶22 Hosman argues that the expert 7 and the case agent
“opined on the primary question the jury was tasked with
deciding in this case” by suggesting that Hosman’s actions were
intentional or reckless” and in so doing violated the parties’
stipulation and rules 701, 702, and 704 of the Utah Rules of
Evidence. As an initial matter, we treat the limits of the
stipulation and the rules of evidence as coextensive. The State
agreed that Hosman’s motion in limine was “not in dispute.”
That motion sought to “preclude the State’s witnesses from
opining as to the issue of intentionality at trial” on the grounds
that it would violate “rules 701 and 704 of the Utah Rules of
Evidence.” 8 Therefore, the question on appeal is whether the
7. We question whether Hosman properly preserved his
challenge to the expert’s testimony. During the testimony,
Hosman did not raise a contemporaneous objection and did not
specifically argue that the expert’s testimony was grounds for a
mistrial, either standing alone or in conjunction with the case
agent’s testimony. But because our analysis concerning the case
agent’s testimony applies equally to the expert’s testimony, we
address the testimony of both witnesses in our analysis without
expressly deciding whether the challenge to the expert’s
testimony was preserved for appeal. See State v. Kitches, 2021 UT
App 24, ¶ 28, 484 P.3d 415 (“If the merits of a claim can easily be
resolved in favor of the party asserting that the claim was not
preserved, we readily may opt to do so without addressing
preservation.” (Cleaned up.)).
8. Hosman argues that the stipulation was broader, as evidenced
by the State’s later statement that it would remind a witness not
to say the word “intentional.” This off-hand comment did not
(continued…)
20190589-CA 10 2021 UT App 103State v. Hosman
challenged testimony offered an opinion on Hosman’s intent in
violation of the rules of evidence.
¶23 Rules 701 and 702 distinguish between permissible lay
witness opinion testimony and testimony that must be offered
by an expert. A lay witness is limited to offering opinions that
are “rationally based on the witness’s perception,” helpful to the
jury in “determining a fact in issue,” and “not based on
scientific, technical, or other specialized knowledge.” Utah R.
Evid. 701. When opinion testimony is based on scientific,
technical, or other specialized knowledge, rule 702 applies, and
the testimony “may be admitted only as expert testimony.” State
v. Rothlisberger, 2006 UT 49, ¶¶ 14–29, 147 P.3d 1176.
¶24 Opinion testimony, from either a lay witness or an expert,
“is not objectionable just because it embraces an ultimate issue”
to be decided by the jury. Utah R. Evid. 704(a); see also State v.
Davis, 2007 UT App 13, ¶ 15 n.10, 155 P.3d 909. Nevertheless,
“the rule is not intended to allow a witness to give legal
conclusions,” Steffensen v. Smith’s Mgmt. Corp., 862 P.2d 1342,
1347 (Utah 1993), such as whether a criminal defendant’s
handling of a weapon constituted “possession,” Davis, 2007 UT
App 13, ¶ 17, or whether an individual’s conduct was
“negligent,” Davidson v. Prince, 813 P.2d 1225, 1231 (Utah Ct.
App. 1991). In addition, rule 704(b) expressly prohibits an expert
witness from offering “an opinion about whether the defendant
did or did not have a mental state or condition that constitutes
an element of the crime charged.” Utah R. Evid. 704(b). Instead,
“these matters are for the trier of fact alone.” Id.(…continued)
broaden the scope of the State’s stipulated agreement that it
would not offer the evidence that Hosman sought to exclude,
that is, lay witness or expert opinion testimony on Hosman’s
intent.
20190589-CA 11 2021 UT App 103State v. Hosman
¶25 Hosman’s challenges fail because neither the case agent
nor the expert offered a legal conclusion or opinion testimony
regarding Hosman’s intent, either as a lay witness or as an
expert. 9 He claims that both witnesses impermissibly “stated an
opinion about whether Hosman did or did not have a mental
state or condition that constitutes an element of the crime
charged or of a defense.” (Cleaned up.) But this overstates the
nature of each witness’s testimony.
9. Hosman also argues that “although [the case agent] testified as
a lay witness and had not been qualified as an expert, he
provided expert testimony.” That issue was not raised at trial,
and Hosman has not established plain error on appeal. Hosman
argues that the case agent testified as an expert because he “used
a technical term that has specialized legal implication” and
because his testimony regarded events which were “not based
on his personal knowledge.” But the case agent was not
addressing whether Hosman acted “intentionally” within the
meaning of Utah law. See Utah Code Ann. § 76-2-103 (LexisNexis
2018). He used the term “intentionally,” not as a legal term of
art, but to distinguish between how a hit-and-run investigation
proceeds if law enforcement receives information to suggest that
the driver may have struck the pedestrian on purpose as
opposed to accidentally. See State v. Bryant, 965 P.2d 539, 548
(Utah Ct. App. 1998) (noting that “a witness may use a legal
term, such as conspiracy, where the testimony is factual and not
a legal conclusion,” and holding that “the victim’s casual use of
the word, ‘robbery,’ was factual, not legal” (cleaned up)). At the
very least, it would not have been obvious to the district court
that such testimony was based on specialized knowledge and
could only be provided by an expert. As a result, Hosman has
not persuaded us to reach this unpreserved issue under the plain
error exception.
20190589-CA 12 2021 UT App 103State v. Hosman
¶26 Both witnesses described the course of the investigation
as a factual matter. The expert testified that when he arrived on
the scene “there was a question of whether this was intentional
or an accident. And then we started interviewing people and
then we collaborate, ‘Okay, this is going to be an intentional.’”
The case agent similarly addressed how the investigation
evolved. He explained that “traffic investigators” and “patrol
officers” initially responded to the scene because they believed it
was a “hit-and-run type accident.” But eventually the major case
squad was called because investigators received information that
“this is possibly not an accident, that this is possibly an
intentional hit-and-run situation to where the driver of a vehicle
had intentionally hit somebody and then left the scene.” Both
witnesses offered factual testimony to explain why the scene was
initially processed as an accidental hit-and-run but later evolved
into a murder investigation, not “an opinion about whether
[Hosman] did or did not have a mental state or condition that
constitutes an element of the crime charged.” See Utah R. Evid.
704(b).
¶27 The challenged testimony in this case is similar to the
testimony at issue in State v. Maestas, 2012 UT 46, 299 P.3d 892. In
that case, the medical examiner testified about the cause and
manner of the victim’s death. Id. ¶ 17. He “explained that, in his
role as a medical examiner, he determines whether an
individual’s death was natural, a suicide, an accident, or a
homicide” and “that the medical determination of homicide is
different than the criminal determination.” Id. ¶ 152. When the
prosecution asked “whether the injuries inflicted on [the victim]
were ‘purposely inflicted,’” the medical examiner “testified that
the stab wounds ‘appeared to be consistent with an intentional
stab wound’ and that the strangulation was ‘purposefully
inflicted.’” Id. ¶ 17.
¶28 On appeal, our supreme court held that the medical
examiner’s testimony that the injuries had been “purposefully
20190589-CA 13 2021 UT App 103State v. Hosman
inflicted” did not violate rule 704 because it was not an opinion
about whether the defendant had the mental state required to
commit the charged crime. Id. ¶ 155. The court explained that the
medical examiner’s testimony was “in the context of his medical
determination that [the victim’s] death was a homicide, rather
than an accident, a suicide, or a natural death.” Id. It “did not
address [the defendant’s] mental state while committing the
crime” and therefore did not run afoul of rule 704. Id.
¶29 Similarly, neither witness offered opinion testimony here
as to whether Hosman did or did not have the mental state to
commit the crime. Neither witness offered an opinion as to
whether Hosman’s U-turn, speed, turning angle, failure to brake,
or any other facts of the case suggested that Hosman acted
“intentionally” within the meaning of Utah law, that is, with a
“conscious objective or desire to engage in the conduct or cause
the result.” See Utah Code Ann. § 76-2-103(1) (LexisNexis 2018);
cf. State v. Davis, 2007 UT App 13, ¶ 17, 155 P.3d 909 (holding
that an officer impermissibly offered a legal conclusion when he
“applied the facts of the case to the prohibitions in the statute”).
As the district court recognized, the testimony did not offer a
legal conclusion, but merely informed the jury that the
investigative team treated the hit and run as “an intentional” to
explain “why and how they proceeded with their investigation.”
In other words, much like the medical examiner’s testimony in
Maestas, the testimony here was offered in the context of law
enforcement’s determination to investigate the victim’s death as
a possible murder as opposed to an accident.
¶30 Because the challenged testimony did not represent the
witness’s opinions or a legal conclusion regarding Hosman’s
mental state but rather stated facts regarding how the case was
processed, its admission did not violate either the parties’
stipulation or the rules of evidence. Accordingly, the district
court acted well within its discretion in denying Hosman’s
motion for a mistrial.
20190589-CA 14 2021 UT App 103State v. Hosman
II. Sufficiency of the Evidence
¶31 Next, Hosman argues the district court erred in denying
his motion for a directed verdict because the State’s evidence
was insufficient to “sustain a reasonable inference that Hosman
had a nefarious intent.” In other words, Hosman claims that the
State failed to prove that he acted with the requisite mental state
to commit first-degree murder. We accord a jury verdict “high
deference” when reviewing for sufficiency of the evidence, see
State v. Hamilton, 2003 UT 22, ¶ 38, 70 P.3d 111, recognizing that
the jury “is the exclusive judge of . . . the weight to be given
particular evidence,” State v. Law, 2020 UT App 74, ¶ 26, 464 P.3d
1192 (cleaned up). “A jury is not obligated to believe the
evidence most favorable to the defendant, nor does the existence
of contradictory evidence or of conflicting inferences warrant
disturbing the jury’s verdict on appeal.” State v. Granados, 2019
UT App 158, ¶ 28, 451 P.3d 289 (cleaned up). “Thus, we will
reverse a jury verdict only when the evidence, viewed in the
light most favorable to the jury’s verdict, 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.” State v.
Covington, 2020 UT App 110, ¶ 31, 472 P.3d 966 (cleaned up).
¶32 In this case, the State presented sufficient evidence to
prove that Hosman acted with the mental state required for
murder. Relevant here, “[c]riminal homicide constitutes murder
if:”
(a) the actor intentionally or knowingly causes the
death of another;
(b) intending to cause serious bodily injury to
another, the actor commits an act clearly
dangerous to human life that causes the death of
another; [or]
20190589-CA 15 2021 UT App 103State v. Hosman
(c) acting under circumstances evidencing a
depraved indifference to human life, the actor
knowingly engages in conduct which creates a
grave risk of death to another and thereby causes
the death of another[.]
Utah Code Ann. § 76-5-203(2) (LexisNexis 2018). Hosman
concedes, and the State agrees, that if there is sufficient evidence
to prove that Hosman acted intentionally, the lesser mental
states are necessarily satisfied. Therefore, we analyze whether
the State presented sufficient evidence from which a jury could
conclude, beyond a reasonable doubt, that Hosman intentionally
caused the death of the victim, see id. § 76-5-203(2)(a), or whether
he caused the death of the victim by committing “an act clearly
dangerous to human life” with the intent “to cause serious
bodily injury,” see id. § 76-5-203(2)(b).
¶33 Under Utah’s criminal code, one acts intentionally “when
it is his conscious objective or desire to engage in the conduct or
cause the result.” Id. § 76-2-103(1). In reaching their verdicts,
“[w]e allow juries to rely on circumstantial evidence to find
intent on the basis of reasonable inferences drawn from the
evidence.” Salt Lake City v. Carrera, 2015 UT 73, ¶ 11, 358 P.3d
1067. “A jury draws a reasonable inference if there is an
evidentiary foundation to draw and support the conclusion.” Id.
¶ 12. When we review the sufficiency of the evidence, we do so
“from a perspective most favorable to the verdict” including
“inferences reasonably drawn from the evidence, recognizing
that determinations regarding witness credibility are solely
within the jury’s province.” State v. Smith, 927 P.2d 649, 651
(Utah Ct. App. 1996). Thus, if the State presented evidence,
including circumstantial evidence, from which the jury could
reasonably infer Hosman’s intent, we will uphold the verdict.
¶34 The State presented ample evidence to support a
reasonable inference that Hosman’s conscious objective or desire
20190589-CA 16 2021 UT App 103State v. Hosman
was to either kill or seriously injure the victim in a manner
clearly dangerous to human life that caused the victim’s death.
Shortly before, the victim had provoked Hosman by
aggressively confronting him and threatening to “cut [him] up
into little pieces.” After the initial confrontation was over,
Hosman went out of his way to reengage with the victim,
making a U-turn, pulling alongside the victim’s SUV, and
challenging him to follow. When the victim laughed it off,
Hosman, undeterred, made yet another U-turn and drove back
toward the intersection. Hosman admitted that he saw the victim
in the crosswalk of 3600 West. He sped past other cars to turn
left toward the victim and, instead of turning normally into the
southbound lanes of 3600 West, cut across the crosswalk in front
of the northbound lanes where the victim was positioned. In
addition, before making the turn, Hosman swerved into the
oncoming lane of traffic on 4100 South, which allowed him to
turn at the angle necessary to strike the victim without reducing
his speed. This evidence showed that Hosman went to great
lengths to hit the victim with his car and was sufficient to prove
beyond a reasonable doubt that he did so intentionally. Given
that a motor vehicle “is clearly capable of inflicting grave injury
or death,” see State v. C.D.L., 2011 UT App 55, ¶ 18, 250 P.3d 69,
the jury could reasonably conclude that Hosman intended either
to kill or seriously injure the victim when Hosman struck him
with his car at approximately thirty-five miles per hour.
¶35 Hosman’s subsequent behavior further supports the
conclusion that he acted intentionally. The evidence showed that
the impact caused serious damage to Hosman’s car and
launched the victim’s body through the air into a telephone pole
approximately fifty-four feet away. Rather than stopping,
Hosman sped off. Shortly thereafter, he took steps to conceal and
change the appearance of his car, supporting a reasonable
inference that he was trying to avoid apprehension by hiding the
murder weapon. “While a defendant’s flight from a crime scene,
20190589-CA 17 2021 UT App 103State v. Hosman
standing alone, does not support an inference of intentional
conduct, the circumstances of a defendant’s flight, in addition to
other circumstantial evidence, may be adequate to support such
an inference.” State v. Holgate, 2000 UT 74, ¶ 23, 10 P.3d 346(cleaned up). Considering the totality of the evidence, the jury
could reasonably infer that Hosman intended to either kill or
cause serious bodily harm to the victim by committing an act
clearly dangerous to human life that resulted in the victim’s
death. Therefore, we reject Hosman’s challenge to the sufficiency
of the evidence supporting his conviction.
III. The Prosecutor’s Closing Arguments
¶36 Finally, Hosman claims “the prosecutor offered unsworn,
unchecked expert opinion about matters not in evidence.”
Specifically, Hosman challenges three matters on which the
prosecutor commented: (1) “that lack of tire skid marks meant
that [Hosman] did not brake,” (2) “that the damage done to the
car was indicative of Hosman’s speed,” and (3) “that Hosman
would need to have made a wide turn in order to maintain his
speed.”
¶37 “A prosecutor commits misconduct during closing
arguments when the prosecutor’s actions or remarks call to the
attention of the jury a matter it would not be justified in
considering in determining its verdict.” State v. Almaguer, 2020
UT App 117, ¶ 12, 472 P.3d 326 (cleaned up). But, to preserve an
issue for appeal, a defendant must lodge “a timely and specific
objection” in the district court. State v. Rogers, 2020 UT App 78,
¶ 47, 467 P.3d 880 (cleaned up). Because Hosman did not object
to the statements he challenges on appeal, we will reverse on this
issue only if Hosman demonstrates plain error. To prevail on a
plain error claim, an appellant must show that “(i) an error
exists; (ii) the error should have been obvious to the trial court;
and (iii) the error is harmful, i.e., absent the error, there is a
reasonable likelihood of a more favorable outcome for the
20190589-CA 18 2021 UT App 103State v. Hosman
appellant.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346(cleaned up).
¶38 Before intervening in a prosecutor’s closing argument
absent an objection, the district court “must be certain” that a
prosecutor’s statement is “both highly prejudicial and
obviously” wrong. State v. Hummel, 2017 UT 19, ¶ 119 & n.35, 393
P.3d 314. Importantly, not “every misstep of counsel in closing
amounts to plain error—subject only to proof of prejudice. We
must ask first whether counsel’s missteps were so egregious that
it would be plain error for the district court to decline to
intervene sua sponte.” Id. ¶ 110 (cleaned up). Accordingly, “our
plain error analysis asks not whether the prosecutor made a
misstep that could be characterized as misconduct, but whether
the trial court made an obvious error in its decision.” Id. ¶¶ 105,
107 (cleaned up). In assessing the egregiousness of the
prosecutor’s misstep, we must keep in mind that prosecutors
have “wide latitude in closing arguments,” State v. Redcap, 2014
UT App 10, ¶ 32, 318 P.3d 1202, abrogated on other grounds by
Hummel, 2017 UT 19, and “the right to fully discuss from their
perspectives the evidence and all inferences and deductions it
supports,” State v. Dibello, 780 P.2d 1221, 1225 (Utah 1989). Here,
none of the prosecutor’s statements during closing arguments
warranted the district court’s intervention sua sponte either to
strike the statements or to grant a mistrial.
¶39 Hosman first challenges the prosecutor’s argument,
“There are no tire skid marks. He did not brake.” The accident
reconstruction expert testified that “if the vehicle braked . . . , the
wheels will leave rubber on the asphalt,” but the expert “did not
see any braking marks.” Hosman points out that there was no
“expert testimony given about whether the lack of brake marks
conclusively demonstrate[d] that Hosman did not apply his
brakes.” But during closing argument, attorneys “may discuss
fully both the evidence and all legitimate inferences arising from
the evidence.” State v. Creviston, 646 P.2d 750, 754 (Utah 1982).
20190589-CA 19 2021 UT App 103State v. Hosman
Here, the direct evidence established both that braking will leave
rubber from the tires on the asphalt and that the expert saw no
braking marks at the scene. The prosecutor’s argument that
Hosman did not brake to avoid hitting the victim is thus a
legitimate and logical inference to be drawn from the direct
evidence.
¶40 Hosman next argues that the prosecutor overstepped by
suggesting that the damage to the car was indicative of the speed
at which Hosman was travelling. The prosecutor commented,
“You saw the damage done to this car. You know what caused
that, his head. His head. That’s how fast he was going.” Hosman
admitted that he was travelling at approximately thirty-five
miles per hour and that the victim’s body caused the damage to
his car. “[T]he State’s closing argument merely asked the jury to
make a reasonable inference, based on common sense and
deductions drawn from other evidence presented,” see State v.
Wright, 2021 UT App 7, ¶ 86, 481 P.3d 479, that the damage to
Hosman’s car would not have been so great if he had struck the
victim while making a slow left-hand turn. The evidence
supported the inference that the damage to the car, which the
jury had observed, was related to how fast Hosman was driving
when he hit the victim.
¶41 Hosman also challenges the prosecutor’s statements about
Hosman taking a wide turn. The prosecutor commented,
“Because in order to maintain the speed that even [Hosman]
says he was at, he couldn’t make that kind of turn. I would
submit to you that is evidence of the wide turn, which is actually
inside the sharp turn. But that’s how he can maintain that speed
that he needs in order to cause the body to fly the distance that it
flies.” Hosman argues that “at no point during the trial was
expert testimony given about whether Hosman would need to
have made a wide turn to maintain his speed.” But the
prosecutor’s statement was a reasonable inference drawn from
many pieces of evidence. Several witnesses testified to the
20190589-CA 20 2021 UT App 103State v. Hosman
approximate location of the victim when Hosman struck him.
Although the exact location varied, each witness placed the
victim in the crosswalk in front of the northbound lanes of 3600
West, not the southbound lanes into which Hosman should have
been turning. Witness testimony as well as camera footage
showed that Hosman moved into the oncoming lane of traffic on
4100 South before turning into the victim. And ample evidence,
including Hosman’s own admission, supported the conclusion
that he was travelling at approximately thirty-five miles per
hour when he struck the victim. This evidence supports the
inference that moving into the oncoming lane of traffic before
making the turn allowed Hosman to cut across the intersection
without needing to turn the wheels sharply. In other words, he
maintained his speed by making a “wide” turn within “the
sharp turn” necessary to strike the victim in the northbound
lanes of the 3600 West crosswalk. At the very least, the
prosecutor’s inference that Hosman had to take a wide turn to
maintain his speed was not so highly prejudicial or obviously
wrong that the court was required to intervene sua sponte.
¶42 All three of the prosecutor’s challenged statements were
arguably supported by the evidence at trial and were not “so
egregiously false or misleading that the judge had an obligation
to intervene by raising an objection sua sponte.” Hummel, 2017
UT 19, ¶ 119 (cleaned up). Thus, the court did not plainly err
when it did not intervene in the absence of an objection.
CONCLUSION
¶43 Because neither the case agent nor the accident
reconstruction expert opined on whether Hosman had the
required mental state to commit the crime, the court acted within
its discretion by denying Hosman’s motion for mistrial. In
addition, the district court correctly denied Hosman’s motion for
directed verdict because the State presented sufficient evidence
20190589-CA 21 2021 UT App 103State v. Hosman
to prove Hosman’s intent to either kill or cause severe bodily
harm to the victim. Finally, the court did not plainly err by not
intervening in the prosecutor’s closing arguments, which were
arguably based on the evidence presented. Therefore, we affirm.
20190589-CA 22 2021 UT App 103