State v. Robinson , 427 P.3d 474 ( 2018 )

2018 UT App 103THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
RYAN RANDY ROBINSON,
Appellant.
Opinion
No. 20160151-CA
Filed June 7, 2018
Third District Court, Salt Lake Department
The Honorable Roger S. Dutson
No. 121903822
Debra M. Nelson and Charity Shreve, Attorneys
for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.
POHLMAN, Judge:
¶1 Defendant Ryan Randy Robinson appeals his convictions
of one count of murder, one count of aggravated assault, and
one count of use of a firearm by a restricted person. Specifically,
he appeals the trial court’s refusal to allow him to cross-examine
a witness (Witness) about a plea in abeyance and the trial court’s
refusal to allow the jury to be transported to the scene of the
crime. We affirm.
State v. Robinson
BACKGROUND 1
The Shooting
¶2 The State charged Robinson with the murder of the victim
(Victim) as well as aggravated assault and use of a firearm by a
restricted person, based on events that occurred on April 9,
2012. 2 At that time, Robinson and Victim were in a relationship
and living together. On the day of the murder they were
temporarily staying at Robinson’s parents’ home over the
weekend while his parents were out of town. Witness, a friend of
Robinson’s—who was an instructor at the college Robinson
attended—drove Robinson to his parents’ home after their
classes had ended for the day.
¶3 When they reached the Robinson home, Robinson invited
Witness inside. Robinson and Witness went down to the
basement and, while there, Robinson went into his father’s
bedroom and retrieved from a shelf a black and silver Smith
& Wesson 9mm semiautomatic handgun to show Witness.
Robinson claimed he had received it for his birthday. He and
Witness “checked out” the gun, and Robinson “took the bullets
out of it,” after which he put the gun away.
¶4 Robinson and Witness then left to run an errand. When
they returned, Robinson and Victim started to argue. The
1. “We recite the facts from the record in the light most favorable
to the jury’s verdict and present conflicting evidence only as
necessary to understand issues raised on appeal.” State v.
Farnworth, 2018 UT App 23, ¶ 4 n.1, 414 P.3d 1053 (quotation
simplified).
2. Robinson does not appeal any specific errors related to the use
of a firearm and aggravated assault convictions. As a result, we
do not separately address or discuss the facts that underlie those
convictions.
20160151-CA 2 2018 UT App 103State v. Robinson
argument, though only verbal at that time, “escalated pretty
quickly,” and Witness, feeling “uncomfortable,” started to leave.
Robinson tried to “hold” Witness to keep him from leaving,
telling Witness to “not . . . let it get to [him].” Around this time,
Victim “ran out the front door,” and Robinson chased after her.
Witness “went straight to [his] car and left.”
¶5 A neighbor (Neighbor) was in her backyard with her
sixteen-year-old son (Neighbor’s Son) when she observed Victim
“running fast” past Neighbor’s house, followed by Robinson.
Both Neighbor and Neighbor’s Son went to the front of their
house “to see what was going on,” and they saw Victim lying
with her back on the ground and Robinson on top “punching,”
“kick[ing],” and “beating” her. Both neighbors described
Robinson as being in a type of “rage.” When Neighbor told
Robinson to stop, Robinson got up and lunged at Neighbor, but
he turned around when Victim alerted him that Neighbor’s Son
was on his phone, apparently dialing 911. Robinson then walked
back to his parents’ home, with Victim following behind.
Neighbor and Neighbor’s Son called the police and reported the
incident.
¶6 Police officers arrived shortly after 3:00 p.m. and, after
speaking with Neighbor and Neighbor’s Son, knocked on the
Robinson’s door and rang the doorbell. Receiving no response,
the officers checked windows and went around the back of the
house. Eventually, more than thirty minutes later, Robinson
emerged from the backyard to talk to the officers. The officers
universally described Robinson as being in a state of emotional
upset—that he was “[t]eary” and “shaking” and that he
appeared to be “nervous,” “agitated,” “pretty aggressive,”
“[v]ery angry,” and “annoyed.” Though Robinson initially
refused to allow the officers into the home, the officers told him
that they would not leave without checking on Victim. Robinson
then called into the house, telling Victim to come up to “show
the police [he] didn’t hurt [her].”
¶7 The officers spoke separately with both Robinson and
Victim about the incident; both denied that their argument
20160151-CA 3 2018 UT App 103State v. Robinson
became physical. Two of the officers carefully looked at Victim’s
face, head, and scalp but could see no injuries. They also did not
see any injuries on Robinson’s hands. Finding no evidence of
assault, the officers left the home at approximately 4:16 p.m.
¶8 Meanwhile, after leaving the Robinson’s home, Witness
went to a mutual friend’s (Friend) house where Robinson and
Victim had been living. While there Friend received several
phone calls from Robinson, some of which Witness overheard. In
one of the early calls, Robinson told Friend that he and Victim
were arguing. In the last phone call, Robinson informed Friend
that he had shot Victim in the head and that she was dead, and
he told Friend that he needed to “get some money [Friend] owed
him.” Witness, overhearing Friend question Robinson about
whether he shot Victim, immediately called 911 and reported
that Victim had been shot. He reported the incident at
approximately 4:40 p.m.
¶9 The first responding officer arrived at the Robinson’s
home at approximately 4:50 p.m. The officer noticed a man—
Robinson—walking down the street, and another of the
neighbors flagged the officer down to let him know she had
observed a gun tucked into the back of Robinson’s pants as he
walked by her house. The officer then attempted to approach
Robinson, and a foot chase ensued, ending in Robinson’s
apprehension.
¶10 Other responding officers entered the Robinson’s home
and discovered Victim lying at the bottom of the basement stairs.
The paramedics discovered a gunshot wound to Victim’s head
and, shortly after responding, they pronounced her dead. The
responding officers also discovered several holes through which
a single bullet appeared to have passed—a hole in the molding
of the basement’s “low hanging ceiling . . . at the bottom of the
[basement] stairs,” a hole in the basement door, and a “divot” in
the kitchen ceiling. The officers also discovered a bullet in the
cat’s dish on the kitchen floor. At trial, witnesses—both fact and
expert—testified about Victim’s location at the time the gun was
fired as well as the bullet’s trajectory. Though various witnesses
20160151-CA 4 2018 UT App 103State v. Robinson
disagreed on the exact stair on which Victim had been standing
at the time she was killed, witnesses postulated that Victim had
been standing on one of the basement stairs. Witnesses also
postulated that the bullet had traveled in an upward direction
from the basement, going first through the molding of the “low-
hanging” basement ceiling, then entering the right side of
Victim’s head and exiting on the left, passing through the
basement door to the kitchen ceiling, creating a “divot” in that
ceiling, and finally coming to rest in the cat’s dish in the kitchen
upstairs. In addition, two handwritten notes were discovered in
the kitchen, which read, “Accident, I love you,” and, “I’m sorry.
This was an accident, so will be the next.”
¶11 Based on these events, the State charged Robinson with
murder, a first degree felony. See Utah Code Ann. § 76-5-203(LexisNexis 2017). The case proceeded to trial.
The Trial
¶12 At trial, both parties agreed that, despite the low
basement ceiling, at the time Robinson shot Victim from the
basement he would have seen at least part of her body on the
stairs. The central issue at trial was whether Victim’s death was
merely reckless and accidental on Robinson’s part, or whether it
was knowing and intentional. Robinson asserted that he was
guilty only of manslaughter—that Victim’s death was the result
of a “tragic accident” involving his unfamiliarity with, and
reckless operation of, the gun. In contrast, the State asserted that,
according to the elements of the variants of murder, Robinson
intended his actions. 3 To that end, the State introduced several
3. The trial court instructed the jury that it could convict
Robinson of murder if it found any one of four variants of
murder, in accordance with Utah Code section 76-5-203. That
section provides in relevant part that “[c]riminal homicide
constitutes murder if”
(continued…)
20160151-CA 5 2018 UT App 103State v. Robinson
fact witnesses to testify regarding their observations and
involvement, including Witness, Neighbor, Neighbor’s Son, the
various responding police officers, and the lead detective on the
case. The State also introduced several expert witnesses,
including a ballistics expert, a bloodstain pattern analyst, and the
forensic pathologist who performed Victim’s autopsy.
¶13 Robinson made two motions during trial that are the
subject of this appeal. First, Robinson apparently discovered on
the second day of trial that Witness had previously pleaded
guilty to theft by deception but that the plea had been held in
abeyance. Robinson therefore moved under rule 608(b) of the
Utah Rules of Evidence to cross-examine Witness about that
(…continued)
(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;
(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; [or]
(d)(i) the actor is engaged in the commission,
attempted commission, or immediate flight from
the commission or attempted commission of any
predicate offense, or is a party to the predicate
offense; (ii) a person . . . is killed in the course of
the commission [or] attempted commission . . . of
any predicate offense; and (iii) the actor acted with
the intent required as an element of the predicate
offense.
Utah Code Ann. § 76-5-203(2)(a)–(d) (LexisNexis 2017).
20160151-CA 6 2018 UT App 103State v. Robinson
plea. 4 Robinson asserted that the plea was probative of Witness’s
character for untruthfulness, as required under rule 608(b). The
court denied Robinson’s request, finding that “it would certainly
be more prejudicial than probative also because it’s not actually
a plea of guilty entered.” While Robinson was therefore unable
to cross-examine Witness about the plea itself, he otherwise
extensively cross-examined Witness about what he characterized
as Witness’s apparent tendency to omit facts “when . . . talking
to law enforcement.”
¶14 Second, Robinson moved under rule 17(i) 5 of the Utah
Rules of Criminal Procedure to have the jury transported to view
the basement at the Robinson’s home where the shooting
occurred. Both parties agreed that the scene had changed since
the crime because the homeowner had remodeled the basement
following the shooting. Nevertheless, Robinson claimed that the
jury view was “critical” and “crucial” to his case and that the
jury needed to “personally observe the angles and obstructions,”
arguing that “[t]he angle of the stairs, the obstruction of the
basement ceiling, and the location of both parties on the stairs
casts considerable doubt on whether [he] could have been acting
knowingly and intentionally where his vision was obstructed.”
He also asserted that, although the basement had been
remodeled and the “paint and flooring ha[d] changed,” the
4. It appears that the bulk of the discussion between the court
and the parties on this matter took place in chambers,
unrecorded. Robinson briefly recounted on the record some of
what occurred in chambers, but both Robinson’s recounting and
the court’s reasoning and decision are limited. There has been no
attempt to supplement the record on this point, and we are
accordingly limited in our review.
5. Robinson moved for a jury view under rule 17(j) of the Utah
Rules of Criminal Procedure. Since that time, the rule has been
renumbered, and we therefore cite to the current jury view
provision—17(i)—in this decision.
20160151-CA 7 2018 UT App 103State v. Robinson
important aspects, such as the approximate ceiling height,
“remain[ed] primarily the same.”
¶15 To support this assertion, Robinson offered testimony
from his father, who testified that he had the “whole [basement]
redone.” For the ceiling, he testified that where it had been tiled
with molding at the bottom, the tile was removed and the ceiling
sheetrocked, which he opined changed the ceiling height about
“an inch.” He also testified that he had completely replaced the
stairs with thinner treads and carpeted them. As for the rest of
the basement, where it had been open before, separate rooms
had been walled off and finished.
¶16 The State opposed Robinson’s motion, arguing that the
significant changes to the basement meant that the jury would
view “a completely different scene” than the one in which
Victim was shot, which it asserted would only be “confusing,”
particularly in light of the photographs and other visual
evidence of the scene that would be presented during trial. The
State also argued that the outcome of Robinson’s motion was
controlled by State v. Cabututan, 861 P.2d 408 (Utah 1993), in
which our supreme court affirmed the trial court’s denial of a
motion to view a crime scene in part because it was “unlikely
that the site would have been in the same condition” as it had
been at the time of the crime. See id. at 412–13. The trial court
agreed with the State and denied the motion.
¶17 The jury convicted Robinson of all charges. Robinson
appeals.
ISSUES AND STANDARDS OF REVIEW
¶18 Robinson argues that the trial court abused its discretion
by refusing to allow him to cross-examine Witness regarding his
theft by deception plea in abeyance under rule 608(b) of the Utah
Rules of Evidence. “Trial courts have broad discretion in
restricting the scope of cross-examination, and on appeal the
trial court’s ruling . . . is reviewed under an abuse of discretion
20160151-CA 8 2018 UT App 103State v. Robinson
standard.” State v. Valdez, 2006 UT App 290, ¶ 7, 141 P.3d 614(quotation simplified). “In circumstances where evidence should
have been admitted, it is reviewed for harmless error. If it is
reasonably likely a different outcome would result with the
introduction of the evidence and confidence in the verdict is
undermined, then exclusion is harmful.” State v. Colwell, 2000 UT
8, ¶ 26, 994 P.2d 177.
¶19 Robinson also argues that the trial court exceeded its
discretion when it denied his motion to transport the jury to the
crime scene. While allowed under the Utah Rules of Criminal
Procedure, jury views are rare, see State v. Doutre, 2014 UT App
192, ¶ 10, 335 P.3d 366, and “[i]t is within the discretion of the
trial court whether to allow jurors to view a crime scene,” State v.
Cayer, 814 P.2d 604, 613 (Utah Ct. App. 1991). We will not
reverse the trial court’s decision “unless the trial court has
clearly abused that discretion.” Id.¶20 Relatedly, Robinson argues that the trial court’s denial of
his request for a jury view violated his constitutional right “to
present a meaningful and complete defense, and was
fundamentally unfair.” While Robinson contends this issue was
preserved, as we explain below, we conclude that it was not. We
therefore review this issue for plain error, as Robinson
alternatively requests. “The plain error standard of review
requires an appellant to show the existence of a harmful error
that should have been obvious to the district court.” State v.
Kennedy, 2015 UT App 152, ¶ 23, 354 P.3d 775 (quotation
simplified).
ANALYSIS
I. Witness Impeachment
¶21 Robinson argues that the trial court improperly precluded
him from cross-examining Witness under rule 608(b) of the Utah
20160151-CA 9 2018 UT App 103State v. Robinson
Rules of Evidence about Witness’s theft by deception plea
in abeyance. 6 This is the type of error to which we generally
apply a harmless error analysis. See State v. Aleh, 2015 UT App
195, ¶ 19, 357 P.3d 12. Thus, to prevail on this issue, Robinson
must demonstrate not only that the trial court erred by
disallowing the cross-examination but also that the error was
harmful—that is, but for the error, “it is reasonably probable that
the result would have been more favorable for the defendant.”
State v. Thomas, 1999 UT 2, ¶ 26, 974 P.2d 269 (stating that
demonstrating “the mere possibility of a different outcome”
absent the error “is not enough; instead, the likelihood of a
different outcome must be sufficiently high to undermine
confidence in the verdict” (quotation simplified)); see also State v.
Miranda, 2017 UT App 203, ¶ 44, 407 P.3d 1033 (“In determining
whether an error in a criminal case is harmless, we may consider
several factors, including the following: the importance of the
complained-of evidence to the prosecution’s case, whether that
evidence was cumulative, and the overall strength of the
prosecution’s case.” (quotation simplified)).
¶22 Rule 608(b) provides,
Except for a criminal conviction under Rule 609,
extrinsic evidence is not admissible to prove
specific instances of a witness’s conduct in order to
attack or support the witness’s character for
truthfulness. But the court may, on cross-
examination, allow them to be inquired into if they
are probative of the character for truthfulness or
untruthfulness of . . . the witness.
Utah R. Evid. 608(b). A line of questioning on cross-examination
regarding specific instances of a witness’s past conduct that is
admissible under rule 608(b) “may still be limited or prohibited
6. The record does not identify the nature of the underlying
conduct that gave rise to Witness’s theft by deception charge.
20160151-CA 10 2018 UT App 103State v. Robinson
by the trial court in its sound discretion under rule 403.” State v.
Gomez, 2002 UT 120, ¶ 33, 63 P.3d 72. Rule 403 provides that
“[t]he court may exclude relevant evidence if its probative value
is substantially outweighed by a danger of . . . unfair prejudice.”
Utah R. Evid. 403.
¶23 Here, the basis of the court’s decision to disallow the
cross-examination is unclear. The court stated on the record its
finding that “it would certainly be more prejudicial than
probative [to allow the cross-examination] because it’s not
actually a plea of guilty entered.” This statement arguably raises
some question about whether the court disallowed the testimony
under rule 403, or whether the court instead determined that the
plea in abeyance itself did not qualify as evidence admissible
under rule 608(b). And, as we have noted, supra note 4, we do
not have the full record of the 608(b) proceedings to otherwise
clarify the court’s reasoning.
¶24 However, we conclude that, even assuming for purposes
of argument that the trial court erred in disallowing the cross-
examination, Robinson has not demonstrated that, absent the
alleged error, there is a reasonable probability that the jury’s
verdict would have been more favorable to him had the
evidence been admitted. See State v. Colwell, 2000 UT 8, ¶ 26, 994
P.2d 177 (“In circumstances where evidence should have been
admitted, it is reviewed for harmless error.”). On that basis, we
affirm the trial court’s decision.
¶25 Robinson argues that the court’s error was harmful
because Witness’s testimony “was important to the State’s case”
for two reasons. First, Robinson claims that the State relied on
Witness’s testimony to establish that Robinson was familiar with
the gun, which he claims made it “less likely” that the jury
would believe “he unintentionally discharged the gun” the day
Victim was killed. Second, he claims that Witness’s testimony
undermined his defense “by providing support for the State’s
argument that [he] was angry enough to be physically
aggressive toward [Victim].” He contends that it was therefore
“essential . . . to be able to challenge [Witness’s] credibility by
20160151-CA 11 2018 UT App 103State v. Robinson
cross-examining him about his prior dishonest act—theft by
deception—to show that [Witness] had fabricated the incidents”
to which he testified. We are not persuaded.
¶26 To begin with, contrary to Robinson’s assertion that
Witness’s testimony “established” that Robinson was familiar
with the gun, Witness’s testimony was only that Robinson had
showed him the gun, that Robinson got the gun from
“[s]omewhere on his dad’s shelf,” and that he and Robinson
“checked out” the gun before Robinson put it back. More
importantly, however, Witness’s testimony was cumulative to
statements Robinson himself made to the lead detective who
investigated the shooting. See Miranda, 2017 UT App 203, ¶ 47
(observing that “when erroneously admitted evidence is
cumulative of evidence already before the factfinder, the error
may be considered harmless”). The detective testified that
Robinson said he got the gun from his dad’s room in the
“dresser, cabinet area,” and he had showed the gun to Witness,
after which he put the gun away. Indeed, Robinson’s statements
to the detective about the gun were more specific than Witness’s
testimony. The detective testified that Robinson told him the gun
was a black and silver 9mm, there were boxes of ammunition in
the “same cabinet area” where the gun was, and he had taken
the bullets out of it around the time he showed the gun to
Witness.
¶27 Witness’s testimony regarding Robinson’s physical
aggression and state of mind was also cumulative to other
evidence introduced at trial. See id. While Witness testified that
the argument between Robinson and Victim “escalated pretty
quickly,” he also testified that the argument he witnessed was
only verbal. He offered no testimony that Robinson was
physically aggressive with Victim; his only testimony about
physical aggression was that Robinson “got a little bit physical”
with him by attempting to “hold” him to keep him from leaving.
¶28 On the other hand, several other witnesses testified to
Robinson’s physical aggression and state of mind closer in time
to the shooting. For example, both Neighbor and Neighbor’s Son
20160151-CA 12 2018 UT App 103State v. Robinson
testified that they witnessed Robinson punch, kick, and beat
Victim, and both described him as being in a “rage.” Neighbor
further testified that Robinson was physically aggressive
towards her, lunging at her when she told Robinson to stop
beating Victim. And the police officers who responded to the
initial welfare check variously described Robinson as being
“agitated,” “annoyed,” “belligerent[],” “pretty aggressive,” and
“[v]ery angry.” In fact, one of the officers testified that
Robinson’s anger and apparent emotional state caused him to be
concerned enough that he specifically positioned himself to be in
one of the other officer’s line of sight while talking with
Robinson. 7
¶29 In addition, although the court did not allow Robinson to
cross-examine Witness about the plea in abeyance, Robinson
otherwise thoroughly cross-examined Witness about his
“tendency” to omit facts when talking with law enforcement and
pointed out inconsistencies in Witness’s testimony. For example,
Robinson highlighted Witness’s failure to initially tell police that
he had gone with Robinson to a liquor store before going to the
Robinson’s home, that he had looked at and handled the gun, or
that Robinson had tried to physically restrain him from leaving;
indeed, Robinson was able to have Witness admit outright that
he was “willing to omit facts to law enforcement.” Robinson also
highlighted certain inconsistencies in Witness’s testimony, such
as the number of times Robinson called him after he left the
7. Relatedly, Robinson suggests that Witness’s testimony was
important to the jury’s verdict because the jury could have
disregarded the neighbors’ testimony regarding his “rage”
where the police at the initial welfare check did not detect
injuries on Victim consistent with being punched and kicked.
While he is correct that the police did not detect injuries on
Victim’s face or head in their initial welfare check, Robinson fails
to acknowledge that evidence from Victim’s postmortem
examination suggested injuries that could be explained by his
beating.
20160151-CA 13 2018 UT App 103State v. Robinson
house. And, in his closing, Robinson suggested to the jury that
Witness was a “horrible witness” and had “zero credibility,” and
he urged the jury “not to believe a single thing” Witness had
said.
¶30 For these reasons, we conclude that Robinson has not
demonstrated that denying him an opportunity to cross-examine
Witness about the plea in abeyance was harmful. 8
II. Jury View
¶31 Robinson argues that the trial court abused its discretion
by denying his motion to transport the jury to view the scene
8. Robinson also fleetingly argues that the trial court’s decision
violated his constitutional rights of confrontation and cross-
examination. See generally State v. Maestas, 564 P.2d 1386, 1387
(Utah 1977) (“The right to cross-examine is an invaluable right
embodied in Article I, Section 12 of the Utah Constitution and in
the Sixth Amendment of the United States Constitution which
assures the right to confrontation.” (quotation simplified)). But
there is no suggestion in the record that Robinson argued to the
trial court that the denial of his motion would violate these
constitutional rights. Accordingly, his constitutional arguments
are unpreserved. See State v. Kennedy, 2015 UT App 152, ¶ 21, 354
P.3d 775 (“An issue is preserved for appeal when it has been
presented to the trial court in such a way that the trial court had
the opportunity to rule on it.”). Nevertheless, Robinson requests
that we review the issue under the plain error exception to our
preservation requirement. He must therefore establish that the
constitutional errors were obvious and harmful. State v. Bond,
2015 UT 88, ¶ 48, 361 P.3d 104. In doing so, he relies on his
prejudice discussion related to rule 608(b) to establish prejudice
related to this plain error claim. His plain error challenge
therefore fails for the same reasons his rule 608(b) challenge
fails—that is, he has failed to establish that the alleged errors
were harmful.
20160151-CA 14 2018 UT App 103State v. Robinson
where the shooting occurred. He contends that his defense was
that “the discharge of the firearm . . . was unintentional—the
result of a tragic accident,” and he asserts that his defense
“depended on the jury’s ability to accurately visualize” the scene
“to understand the unlikelihood that [he] intentionally
discharged the gun toward [Victim].” He also argues that the
court’s error in denying his motion deprived him of “his due
process right to present a complete and meaningful defense.”
A. The Court’s Discretion
¶32 Rule 17(i) of the Utah Rules of Criminal Procedure
authorizes a trial court to order a jury view of the place where
the crime was committed:
When in the opinion of the court it is proper for the
jury to view the place in which the offense is
alleged to have been committed . . . it may order
them to be conducted in a body under the charge
of an officer to the place, which shall be shown to
them by some person appointed by the court for
that purpose.
Utah R. Crim. P. 17(i).
¶33 Jury views of crime scenes are rare, State v. Doutre, 2014
UT App 192, ¶ 10, 335 P.3d 366, and the reasons are evident
through the considerations relevant to deciding whether to grant
or deny a request for one. These considerations include “the
availability of other sources of documentary evidence and/or
witness testimony; whether conditions at the site have changed
since the time of the incident; and any logistical difficulties that
may be associated with coordinating and executing an out-of-
court excursion.” See United States v. Santiago, 203 F. Supp. 3d
1135, 1137 (D. Colo. 2016) (quotation simplified). We will not
reverse a trial court’s consideration of the relevant circumstances
and its ultimate decision on this issue unless the appellant
demonstrates a clear abuse of discretion. See State v. Cayer, 814
20160151-CA 15 2018 UT App 103State v. Robinson
P.2d 604, 613 (Utah Ct. App. 1991) (“It is within the discretion of
the trial court whether to allow jurors to view a crime scene and
that decision will not be reversed unless the trial court has
clearly abused that discretion.”); see also State v. Cabututan, 861
P.2d 408, 412 (Utah 1993) (“There is a presumption as to the
correctness of the trial judge’s ruling [regarding a jury view] in
the absence of a demonstration to the contrary, and that decision
will not be upset absent a clear abuse of discretion.” (quotation
simplified)).
¶34 In this regard, our supreme court has noted the general
rule that a court should not grant a jury view unless “it is
distinctly impracticable and inefficient to present the material
elements . . . by photographs, diagrams, maps, measurements,
and the like.” See Cabututan, 861 P.2d at 412 (quotation
simplified). In addition, “it has been held that a court abuses its
discretion if it permits the jury to view the scene if the conditions
have changed.” See id.; see also United States v. Culpepper, 834 F.2d
879, 883 (10th Cir. 1987) (concluding that the trial court did not
abuse its discretion in denying a request for a jury view of the
crime scene—a field—where “an exceedingly rainy fall would
have changed the field’s condition substantially” and
photographs of the scene taken a day after the crime were
admitted); State v. Ervin, 792 S.E.2d 309, 316 (W. Va. 2016)
(concluding there was no abuse of discretion in denying a
request for a jury view where the scene “was no longer as it was
on the night of the shooting due to the removal of some vehicles
that might be of issue and the absence of foliage that would have
been there” and where “there were numerous photos and other
documents available to present at trial to allow the jury to
visualize the scene”).
¶35 Here, we conclude that the trial court did not exceed its
discretion when it denied Robinson’s motion to transport the
jury to the scene of the shooting. The court denied the motion
because it determined that the crime scene was “not in the same
condition that it was” at the time of the crime. To reach this
conclusion, the court relied on the holding of Cabututan as well
20160151-CA 16 2018 UT App 103State v. Robinson
as testimony from the homeowner regarding the various
changes made during a remodel of the basement after the
shooting. These changes included alterations that changed the
various heights and angles involved at the time of the crime,
such as replacing the ceiling tiling and molding with sheetrock,
replacing the stair treads and carpeting them, and otherwise
closing off portions of what had been the open basement area.
¶36 Given the changes to the scene, it was not unreasonable
for the court to deny the motion to view it. See Cabututan, 861
P.2d at 412–13 (concluding that it was not an abuse of discretion
to deny the motion to view the scene where it was “unlikely that
the site would have been in the same condition . . . as it had
been . . . three months earlier” when the crime took place); see
also State v. Revels, 99 A.3d 1130, 1139–40 (Conn. 2014)
(concluding there was no abuse of discretion where a tree
involved in the line of sight at a crime scene would not have had
leaves at the time of the crime but would have had leaves at the
time of trial). Simply put, the scene Robinson wanted the jury to
visit would not have been the scene in which Victim was shot;
both parties agreed that the heights, interior spaces, and
building materials had all changed since the crime was
committed. Accordingly, the court did not exceed its discretion
under rule 17(i) in denying Robinson’s jury view motion.
B. Due Process
¶37 Robinson also argues that the denial of his motion
violated his constitutional right to present a meaningful defense.
See generally Holmes v. South Carolina, 547 U.S. 319, 324 (2006)
(“Whether rooted directly in the Due Process Clause of the
Fourteenth Amendment or in the Compulsory Process or
Confrontation Clauses of the Sixth Amendment, the Constitution
guarantees criminal defendants a meaningful opportunity to
present a complete defense.” (quotation simplified)). He
contends that this issue was preserved but asks us to review it
under plain error if we determine that it is not.
20160151-CA 17 2018 UT App 103State v. Robinson
¶38 We conclude that the issue is not preserved. Although
Robinson asserts that this argument was preserved at trial
through his contention that the jury view was “critical” and
“crucial” to his defense, we disagree that these assertions were
sufficient to properly preserve the constitutional arguments he
now presents. “An issue is preserved for appeal when it has
been presented to the trial court in such a way that the trial court
had the opportunity to rule on it.” State v. Kennedy, 2015 UT App
152, ¶ 21, 354 P.3d 775. This means that the “party asserting
error on appeal must have (1) raised the issue in a timely fashion
in the lower court, (2) specifically raised the issue, and (3)
introduced supporting evidence or relevant legal authority.” In
re Baby Girl T., 2012 UT 78, ¶ 34, 298 P.3d 1251 (quotation
simplified). “[A]n objection at trial based on one ground . . . does
not preserve for appeal any alternative grounds for objection.”
State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867. And even if it may be
claimed that an issue was raised “indirectly,” that issue must
still “at least be raised to a level of consciousness such that the
trial judge can consider it.” In re Baby Girl T., 2012 UT 78, ¶ 34
(quotation simplified).
¶39 In his motion, Robinson requested a jury view only under
rule 17(i) of the Utah Rules of Criminal Procedure and made no
argument—either in writing or orally—that his request should
also be evaluated in terms of his constitutional right to present a
meaningful and complete defense. See id. Furthermore, nothing
about the words “critical” or “crucial” could have reasonably
alerted the trial court that Robinson was invoking his
constitutional right to present his defense as a separate basis to
justify his rule 17(i) request. 9 See id.
9. As the State points out, Robinson’s reliance on In re Baby Girl
T., 2012 UT 78, 298 P.3d 1251, is misplaced. In that case, our
supreme court determined that, although the appellant did not
“use the words ‘due process’ until his motion to reconsider,”
“[t]he briefing in the district court was infused with due process
(continued…)
20160151-CA 18 2018 UT App 103State v. Robinson
¶40 We therefore review this unpreserved issue for plain
error. To establish that a court plainly erred in light of his right
to present a complete and meaningful defense, Robinson must
demonstrate the constitutional error was obvious and harmful.
See State v. Bond, 2015 UT 88, ¶ 48, 361 P.3d 104. In this regard,
Robinson must establish both that there is “settled appellate law
to guide the trial court” such that the error would or should
have been obvious, see State v. Roman, 2015 UT App 183, ¶ 9, 356
P.3d 185 (quotation simplified), and that “absent the error, there
is a reasonable likelihood of a more favorable outcome” for him,
see Bond, 2015 UT 88, ¶ 36 (quotation simplified). Robinson
cannot satisfy this test.
¶41 First, Robinson has not established that the alleged error
would have been obvious to the trial court. Although Robinson
claims in general that denying his motion violated his
constitutional right to present a meaningful defense, Robinson
has not demonstrated that there is “settled appellate law”—in
Utah or in other jurisdictions—suggesting that denying a request
for a jury view runs plainly afoul of that right. See Roman, 2015
UT App 183, ¶ 9 (stating that the appellant had directed this
court to “no Utah authority to support his argument”;
explaining that “[w]ithout clear guidance in the law, any error
would not have been obvious to the district court”; and
concluding that as a result the appellant could not “avail himself
of the plain error exception” (quotation simplified)); see also State
v. Mitchell, 2013 UT App 289, ¶ 44, 318 P.3d 238 (concluding that
the appellant had not demonstrated obvious error where he
(…continued)
implications, arguments, and cases.” See id. ¶ 36. The same
cannot be said here. Robinson used only rule 17(i) cases and
arguments to support his claim to a jury view. And while he
used the words “crucial” and “critical” in describing the need for
the jury to view the scene, he made no attempt at any time to
explain the constitutional implications of denying his motion. See
id.
20160151-CA 19 2018 UT App 103State v. Robinson
“cite[d] no authority” supporting the proposition that the error
alleged “can constitute an obvious trial error” and instead cited a
case that only “generally” discussed the right he contended was
violated).
¶42 Second, Robinson has not demonstrated that, had the trial
court allowed the jury to view the remodeled scene, there is a
reasonable likelihood that the outcome of the trial would have
been more favorable to him. See Bond, 2015 UT 88, ¶ 36. As noted
in this opinion, the basement’s remodel altered the scene in
which Victim had been shot, and apart from contending that the
jury needed to view the unique angles and heights in play to
fully comprehend his defense, Robinson has not explained how
viewing the remodeled basement—where the heights and
building materials have been altered since the crime occurred—
would have swayed the jury into believing that he recklessly and
accidentally shot Victim.
¶43 In this regard, we agree with the State’s contention that
viewing the scene would not have changed the basic facts to
which all parties have agreed—that, at the time Robinson shot
Victim, at least part of her body would have been visible to him,
and that, given the trajectory of the bullet, the gun was
necessarily aimed in Victim’s direction at the time it was fired. In
light of these facts, we further agree with the State that whether
the firing was accidental seems to turn on circumstantial
evidence, such as evidence about Robinson’s state of mind
around the time of the shooting, not on whether (or how much)
the ceiling heights and stair angles might have obscured
Robinson’s view of Victim’s head.
¶44 Along those lines, it is also significant that the jury was
not required to find that Robinson intended to kill Victim in
order to convict him. The jury was instructed that it could
convict Robinson of murder if it found that he “[c]ommitted an
act clearly dangerous to human life with the intent to cause
serious bodily injury to [Victim],” which caused her death; that
he acted “under circumstances evidencing a depraved
indifference to human life, knowingly engaged in conduct which
20160151-CA 20 2018 UT App 103State v. Robinson
created a grave risk of death to another and thereby caused”
Victim’s death; or that he “[e]ngaged in the commission or
attempted commission of a Discharge of a Firearm,” “[Victim]
was killed in the course of the commission or attempted
commission” of the firearm’s discharge, and Robinson “knew or
had reason to believe that any person may be endangered by the
discharge of a firearm.”
¶45 In other words, the jury could have concluded that
perhaps Robinson did not intend to outright kill Victim but that
he was still guilty of murder because, seeing Victim standing on
the stairs, he nevertheless pointed and fired the gun in her
direction. Robinson has not attempted to explain how viewing
the remodeled scene would have been reasonably likely to dispel
all the potential variants of murder in play to convince the jury
that Victim’s killing was merely reckless.
¶46 Moreover, in making his argument that the jury view was
critical, Robinson seems to rely heavily on his expert’s testimony
that it was important to view the crime scene firsthand to
understand the relationships of the heights and angles involved.
But the jury was provided extensive visual evidence, including
many photographs from the actual crime scene and a video
made by investigating officers shortly after the shooting, as well
as various witnesses discussing the crime scene. Robinson fails
to explain why, given that evidence, a visit to the remodeled
scene would have been reasonably likely to convince the jury
that he was merely reckless in killing Victim.
¶47 For these reasons, we conclude that the trial court did not
exceed its discretion or otherwise plainly err in denying
Robinson’s motion to transport the jury to the scene. 10
10. Robinson also requests that we reverse on the basis of
cumulative error, arguing that “[e]ven if none of the errors
discussed . . . are prejudicial on their own, taken together, they
undermine confidence in the fairness of [his] trial.” “[T]he
(continued…)
20160151-CA 21 2018 UT App 103State v. Robinson
CONCLUSION
¶48 We conclude that any assumed error in the trial court’s
denial of Robinson’s motion to cross-examine Witness about a
plea in abeyance under rule 608(b) does not undermine our
confidence in the verdict. We also conclude that the trial court
did not abuse its discretion in denying Robinson’s motion to
transport the jury to the crime scene. Finally, we conclude that
Robinson has not established plain error based on either
decision. Accordingly, we affirm Robinson’s convictions.
(…continued)
cumulative-error doctrine may only be considered when the
appellate court has determined, or assumed without deciding,
that two or more errors occurred.” State v. King, 2017 UT App 43,
¶ 15, 392 P.3d 997. Because we have not concluded that the trial
court committed multiple errors in this case, the cumulative
error doctrine does not apply. See id.20160151-CA 22 2018 UT App 103