State v. Rasabout and Kaykeo

2013 UT App 71_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff, Appellant, and Cross‐appellee,
v.
ANDY RASABOUT,
Defendant and Appellee,
and
LEVITZ LONDON KAYKEO,
Defendant, Appellee, and Cross‐appellant.
Opinion
No. 20100284‐CA
Filed March 21, 2013
Third District, West Jordan Department
The Honorable Robert Adkins
No. 071402384 & 071402387
John E. Swallow and Ryan D. Tenney, Attorneys for Appellant
and Cross‐appellee
Debra M. Nelson and Daniel M. Torrence, Attorneys for
Appellee Andy Rasabout
Kelly Ann Booth, Attorney for Appellee and Cross‐appellant
Levitz London Kaykeo
JUDGE J. FREDERIC VOROS JR. authored this Opinion,
in which JUDGE WILLIAM A. THORNE JR. concurred.
JUDGE GREGORY K. ORME concurred in part and concurred in the
result in part, with opinion.
VOROS, Judge:
¶1 Following a jury trial, Andy Rasabout and Levitz London
Kaykeo (collectively, Defendants) were each convicted of one count
State v. Rasabout and Kaykeo
of possession of alcohol by a minor, a class B misdemeanor, see
Utah Code Ann. § 32A‐12‐209 (LexisNexis Supp. 2007) (current
version at id. § 32B‐4‐409 (2011)), and twelve counts of discharge of
a firearm from a vehicle, a third degree felony, see id. § 76‐10‐508
(Supp. 2007) (current version at id. §§ 76‐10‐508, ‐508.1 (2012)).
Before sentencing, the trial court merged the twelve counts of
discharge of a firearm into a single count for each defendant. The
State appeals that decision. Kaykeo cross‐appeals, challenging his
conviction on the basis of ineffective assistance of counsel. We
reverse and remand for resentencing on the first issue and affirm
on the second.
BACKGROUND1
¶2 In the early hours of the morning on November 1, 2007, a
man standing outside his house smoking a cigarette saw a white
Honda Civic drive past, make a U‐turn, and circle back toward
him. When he heard a shot fired from the car, he ducked inside the
house. He then heard another “eight or nine shots” fired “one right
after another, just nonstop.” After the car had gone, he ran through
the house to check on his family and friends. As he looked out the
window moments later, he saw the car drive by again and heard
two more shots. No one was injured, but the twelve shots damaged
the interior and exterior of the house and two cars parked outside.
One of the cars was a distinctive vehicle that belonged to a guest
who was at the house that morning.
¶3 Police arrived in minutes. While one officer was outside the
house, he saw Defendants drive by in a white Honda Civic,
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 (citation
and internal quotation marks omitted).
20100284‐CA 2 2013 UT App 71State v. Rasabout and Kaykeo
followed by a BMW. The officer got into his car and pulled
Defendants over. Both the driver of the Civic, Kaykeo, and the
passenger, Rasabout, showed signs that they had been drinking.
The officer also noticed shell casings in plain view in the passenger
compartment of the Civic. After the car was impounded and
searched, a nine‐millimeter semiautomatic handgun with an empty
magazine was found hidden in a compartment under the glove
box, and four nine‐millimeter shell casings were found in the
passenger compartment. Eight additional nine‐millimeter shell
casings were found near the house.
¶4 Kaykeo presented an alibi at trial, testifying that he was at
a party at the time of the shooting. According to Kaykeo’s testi‐
mony, Rasabout approached Kaykeo at the party and asked him to
drive Rasabout home because he had drunk too much. They were
pulled over within a few minutes of leaving the party. Kaykeo
called no other witnesses to corroborate his alibi.
¶5 The jury returned a verdict of guilty on all counts against
Defendants. Before sentencing, the trial court granted a motion to
merge convictions. The court merged the twelve counts of dis‐
charge of a firearm from a vehicle into a single count for each
defendant.
¶6 After sentencing, Kaykeo filed a motion for new trial,
arguing that his trial counsel was ineffective because he did not
investigate possible witnesses who could verify Kaykeo’s alibi.
Kaykeo supported his motion with signed declarations from
himself and two friends. The State opposed the motion for new
trial and filed an affidavit from Kaykeo’s trial attorney countering
the assertions in Kaykeo’s declaration. The trial court found
Kaykeo’s declaration not credible, found his trial attorney’s
affidavit credible, and accordingly rejected Kaykeo’s ineffective
assistance claim.
20100284‐CA 3 2013 UT App 71State v. Rasabout and Kaykeo
ISSUES AND STANDARDS OF REVIEW
¶7 On appeal, the State contends that the trial court erred by
merging the counts of discharging a firearm from a vehicle.
“Because merger questions are legal in nature, we review them for
correctness.” State v. Lee, 2006 UT 5, ¶ 26, 128 P.3d 1179.
¶8 On cross‐appeal, Kaykeo challenges his conviction, arguing
that he was deprived of his constitutional right to counsel because
his trial counsel was ineffective. An ineffective assistance claim
presents mixed questions of law and fact. State v. Templin, 805 P.2d
182, 186 (Utah 1990) (citing Strickland v. Washington, 466 U.S. 668,
698 (1984)). “Therefore, in a situation where a trial court has
previously heard a motion based on ineffective assistance of
counsel,” as here, “reviewing courts are free to make an independ‐
ent determination of a trial court’s conclusions. The factual findings
of the trial court, however, shall not be set aside on appeal unless
clearly erroneous.” Id. (footnote citations omitted). But “[b]ecause
this appeal comes to us on a motion for a new trial, there are few,
if any, factual findings to review.” State v. Lenkart, 2011 UT 27, ¶ 20
n.7, 262 P.3d 1.
ANALYSIS
I. Merger2
¶9 The State contends that the trial court erred by merging the
twelve counts of discharge of a firearm into a single count for each
defendant. The trial court ruled that the multiple shots fired toward
the house and cars constituted one offense because the shots were
all part of a “single criminal episode.” See Utah Code Ann.
§ 76‐1‐401 (LexisNexis 2012). Relying on case law, the court also
2. We compliment the parties on their exemplary briefing of this
complex issue.
20100284‐CA 4 2013 UT App 71State v. Rasabout and Kaykeo
ruled that the multiple shots constituted one offense because the
multiple shots were animated by “one intention, one general
impulse, and one plan.” See State v. Crosby, 927 P.2d 638, 645 (Utah
1996) (citation and internal quotation marks omitted). The State
argues that the trial court erred by relying on the “single criminal
episode” statute and case law interpreting it rather than looking to
the firearm discharge statute to determine how many counts
Defendants may be convicted of. We agree.3
¶10 Though not presented in this fashion, the question before the
trial court was one of multiplicity and double jeopardy. Among the
protections embodied in the Double Jeopardy Clause of the United
States Constitution is “protection against multiple punishments for
the same offense.” Bernat v. Allphin, 2005 UT 1, ¶ 11, 106 P.3d 707(citing Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 306–07
(1984)). The problem of multiplicity arises when “a single offense
[is charged] in several counts.” Charles Alan Wright et al., 1A
Federal Practice & Procedure: Criminal § 142, at 10 (4th ed. 2008). The
“rule against multiplicity . . . ‘is intended to prevent multiple
punishments for the same act,’” thus guarding against double
jeopardy by “‘prohibit[ing] the Government from charging a single
offense in several counts.’” State v. Morrison, 2001 UT 73, ¶ 26, 31
P.3d 547 (emphases omitted) (quoting United States v. Kimbrough,
69 F.3d 723, 729 (5th Cir. 1995)). When a defendant has been
charged under multiple counts for the same offense, the court may
merge the counts to avoid a double jeopardy violation. See Lee, 2006
UT 5, ¶¶ 30–31. Therefore, to determine whether merger was
appropriate, the relevant question is what constitutes a single
offense.
¶11 The trial court answered this question by turning to the
definition of “single criminal episode” in the Utah Code. See Utah
3. Because we agree with the State’s main contention, we do not
address its alternative argument that the events involved two
criminal episodes.
20100284‐CA 5 2013 UT App 71State v. Rasabout and Kaykeo
Code Ann. §§ 76‐1‐401 to ‐403 (LexisNexis 2012). The single
criminal episode statute enlarges double jeopardy protections. The
Fifth Amendment prohibits any person “for the same offence to be
twice put in jeopardy of life or limb.” U.S. Const. amend. V. The
single criminal episode statute “expand[s] the scope of offenses
barred from multiple trials beyond ‘the same offense’ focus in
double jeopardy, to all offenses arising from a ‘single criminal
episode.’” State v. Strader, 902 P.2d 638, 641 (Utah Ct. App. 1995)
(citing Utah Code Ann. §§ 76‐1‐402(2), ‐403(1) (1995); Utah R. Crim.
P. 9.5; State v. Franklin, 735 P.2d 34, 35–36 (Utah 1987)); see also State
v. Sommerville, 2013 UT App 40, ¶ 34 n.11, — P.3d — . The statute
is thus “designed to protect a defendant from multiple trials for
offenses that are part of a ‘single criminal episode.’” Sommerville,
2013 UT App 40, ¶ 7 (citation omitted). Accordingly, subject to
stated qualifications, such as where “the court otherwise orders to
promote justice,” section 76‐1‐402(2) of the Utah Code prohibits
separate trials for “separate offenses” arising “under a single
criminal episode.” Utah Code Ann. § 76‐1‐402(2).
¶12 The statute defines a single criminal episode as “all conduct
which is closely related in time and is incident to an attempt or an
accomplishment of a single criminal objective.” Id. § 76‐1‐401. This
definition of “single criminal episode” explains how closely
“separate offenses” must be connected to fall within the statutory
requirement of a single prosecution; it does not define “separate
offense.” Indeed, the purpose of the provision is to require a single
trial on “separate offenses” that are “closely related in time” and
“incident to an attempt or an accomplishment of a single criminal
objective.” Id. Accordingly, the fact that separate acts fall within the
definition of “single criminal episode” does not establish that they
are a single offense. See, e.g., State v. Porter, 705 P.2d 1174, 1178
(Utah 1985) (“Although defendant’s crimes were committed during
a single criminal episode, he committed two distinct burglaries
separately punishable under section 76‐1‐402.”); State v. James, 631
P.2d 854, 856 (Utah 1981) (“Double jeopardy . . . does not prevent
multiple convictions for multiple offenses arising from a single
criminal episode.”). On the contrary, Utah law expressly provides
20100284‐CA 6 2013 UT App 71State v. Rasabout and Kaykeo
that “[a] court may impose consecutive sentences for offenses
arising out of a single criminal episode as defined in Section
76‐1‐401.” Utah Code Ann. § 76‐3‐401(5) (LexisNexis 2012).
Accordingly, a determination that separate acts—in this case, shots
from a gun—are part of a single criminal episode does not mean
that they cannot be punished separately, but that—again, subject
to enumerated qualifications—they must be tried together. Thus,
the single criminal episode statute does not resolve the question
before us.4
¶13 The trial court also applied a test used to determine what
constitutes a single offense in the context of theft. Our supreme
court has held that the test to determine whether multiple takings
constitute a single offense or multiple offenses considers the intent
of the defendant:
“[T]he general test as to whether there are separate
offenses or one offense is whether the evidence
discloses one general intent or discloses separate and
distinct intents. . . . If there is but one intention, one
general impulse, and one plan, even though there is
a series of transactions, there is but one offense . . . .”
State v. Kimbel, 620 P.2d 515, 518 (Utah 1980) (alteration and second
omission in original) (quoting People v. Howes, 222 P.2d 969, 976
(Cal. Dist. Ct. App. 1950)); see also State v. Crosby, 927 P.2d 638, 645
(Utah 1996) (following Kimbel in context of theft); State v. Irvin, 2007
4. Nor is section 76‐1‐402(1) relevant to this case. That provision
states that “when the same act of a defendant under a single
criminal episode shall establish offenses which may be punished in
different ways under different provisions of this code, the act shall
be punishable under only one such provision.” Utah Code Ann.
§ 76‐1‐402(1) (LexisNexis 2012). The present case involves multiple
charges under the same provision, not different provisions.
20100284‐CA 7 2013 UT App 71State v. Rasabout and Kaykeo
UT App 319, ¶¶ 18–19, 169 P.3d 798 (following Kimbel in context of
aggravated robbery).
¶14 This rule is sometimes referred to as the “single larceny
doctrine.” See State v. Barker, 624 P.2d 694, 695 (Utah 1981); State v.
McClanahan, 836 P.2d 1164, 1166–67 (Kan. 1992). The gist of the
doctrine is that “if the taking . . . constitutes but a single act, then
there is but one offense and the multiple ownership of the property
taken is immaterial.” Barker, 624 P.2d at 695. “The overriding
principle behind the single larceny doctrine is to prevent the state
from aggregating multiple criminal penalties for a single criminal
act.” Richardson v. Commonwealth, 489 S.E.2d 697, 700 (Va. Ct. App.
1997) (en banc). The doctrine thus often operates as a “humane
rule,” because “[i]f each article stolen were of a value sufficient to
make the crime a felony, and a separate charge could be filed as to
each, a defendant, if convicted, might be sentenced to the peniten‐
tiary for the rest of his life.” Sweek v. People, 277 P. 1, 3 (Colo. 1929).
See generally 50 Am. Jur. 2d Larceny §§ 4–8.5
¶15 The single larceny doctrine thus evolved to limit charging
discretion in the context of aggregating or separating theft counts
based on their dollar values for the purpose of maximizing criminal
liability. No Utah court has applied this test beyond the context of
theft‐related crimes. See State v. Escamilla‐Hernandez, 2008 UT App
419, ¶¶ 10–11, 198 P.3d 997 (“We are not persuaded that competent
counsel should have argued for an extension of these larceny cases
to the arena of child sexual abuse.”); State v. Smith, 2003 UT App
179, ¶¶ 17–19, 72 P.3d 692 (distinguishing cases involving “theft
over time” from attempted tax evasion); see also Barker, 624 P.2d at
696 (analogizing to the doctrine without adopting it in the context
of a criminal mischief charge for damaging the windshields of
5. On the other hand, the prosecution may seek to aggregate thefts
under the single larceny doctrine to convict a defendant of a single
felony rather than several misdemeanors. See, e.g., State v. Barker,
624 P.2d 694, 695 (Utah 1981).
20100284‐CA 8 2013 UT App 71State v. Rasabout and Kaykeo
sixteen vehicles, and rejecting the State’s argument that the
doctrine required reversal, because “the factual prerequisite for the
application of the single larceny doctrine, i.e., a single act, is
absent”). We similarly decline to extend the single larceny doctrine
to this case, which does not involve the grouping of multiple thefts.
¶16 Rasabout and the State both suggest, and we agree, that
distinguishing a single, continuous offense from separate, distinct
offenses is primarily a question of interpreting the text of the
statute defining the crime. See State v. Morrison, 2001 UT 73,
¶¶ 25–26, 31 P.3d 547 (analyzing the statute to determine whether
multiple charges involved a single offense); State v. James, 631 P.2d
854, 855–56 (Utah 1981) (same); Escamilla‐Hernandez, 2008 UT App
419, ¶¶ 11–13 (same); State v. Irvin, 2007 UT App 319, ¶¶ 15–17, 169
P.3d 798 (same); State v. Suarez, 736 P.2d 1040, 1042 (Utah Ct. App.
1987) (same); see also United States v. Kimbrough, 69 F.3d 723, 730
(5th Cir. 1995) (“We must defer to the legislature’s determination
of whether a specific course of conduct constitutes one or more
separate crimes.” (citing Sanabria v. United States, 437 U.S. 54, 70
(1978))). Thus, “at its core, the issue of duplicity or multiplicity is
one of statutory interpretation.” Charles Alan Wright et al., 1A
Federal Practice & Procedure: Criminal § 142, at 13 (4th ed. 2008).
¶17 The key question in reviewing the statute is what the
legislature has determined to be the “allowable unit of prosecu‐
tion.” See United States v. Universal C.I.T. Credit Corp., 344 U.S. 218,
221 (1952). “‘The test is whether the individual acts are prohibited,
or the course of action which they constitute. If the former, then
each act is punishable separately. . . . If the latter, there can be but
one penalty.’” Blockburger v. United States, 284 U.S. 299, 302 (1932)
(omission in original) (quoting Whartonʹs Criminal Law § 34 n.3
(11th ed.)). “Whether a particular course of conduct involves one
or more distinct ‘offenses’ under the statute depends on this
[legislative] choice.” Sanabria, 437 U.S. at 70. Thus, “‘[t]he question
of what punishments are constitutionally permissible is not
different from the question of what punishments the Legislative
Branch intended to be imposed.’” State v. McCovey, 803 P.2d 1234,
20100284‐CA 9 2013 UT App 71State v. Rasabout and Kaykeo
1239 (Utah 1990) (quoting Albernaz v. United States, 450 U.S. 333,
344 (1981)), modified by State v. Smith, 2005 UT 57, ¶ 11 & n.4, 122
P.3d 615 (addressing the method of determining “what punish‐
ments the Legislative Branch intended to be imposed”). We
therefore turn to an analysis of the firearm discharge statute.
¶18 “When interpreting a statute, we look first to its text.”
Richards v. Brown, 2012 UT 14, ¶ 23, 274 P.3d 911. The text of the
statute under which Defendants were convicted makes it a crime
to discharge a firearm from a vehicle:
(1)(a) A person may not discharge any kind of
dangerous weapon or firearm:
(i) from an automobile or other vehicle;
(ii) from, upon, or across any highway;
...
(vii) without written permission to discharge
the dangerous weapon from the owner or person in
charge of the property within 600 feet of:
(A) a house, dwelling, or any
other building . . . .
Utah Code Ann. § 76‐10‐508(1) (LexisNexis Supp. 2007) (current
version at id. § 76‐10‐508(1) (2012)). The statute also includes a
felony enhancement if, among other things, the offender discharges
the firearm in the direction of a building or vehicle with the intent
to damage the building or intimidate or harass another person.6
6. The text of the enhancement is as follows:
(2) A violation of any provision of this section is a
class B misdemeanor unless the actor discharges a
firearm under any of the following circumstances not
amounting to criminal homicide or attempted
criminal homicide, in which case it is a third degree
felony and the convicted person shall be sentenced to
(continued...)
20100284‐CA 10 2013 UT App 71State v. Rasabout and Kaykeo
¶19 The Utah Legislature has given us tools for construing
criminal statutes. Section 76‐1‐106 declares that “[a]ll provisions of
this code and offenses defined by the laws of this state shall be
construed according to the fair import of their terms to promote
justice and to effect the objects of the law and general purposes of
Section 76‐1‐104.” Utah Code Ann. § 76‐1‐106 (LexisNexis 2012).
Section 76‐1‐104 provides in part that the criminal code should be
construed to “[d]efine adequately the conduct and mental state
which constitute each offense and safeguard conduct that is
without fault from condemnation as criminal,” and to “[p]rescribe
penalties which are proportionate to the seriousness of offenses
and which permit recognition or differences in rehabilitation
possibilities among individual offenders.” Id. § 76‐1‐104(2), ‐104(3).
¶20 Our supreme court has applied these principles in analyzing
a multiplicity challenge. For example, in State v. Morrison, 2001 UT
73, 31 P.3d 547, the court addressed a challenge to the sexual
exploitation of a minor statute. Morrison argued that, under the
statute, possession of fifty offending images constituted a single
6. (...continued)
an enhanced minimum term of three years in prison:
(a) the actor discharges a firearm in the
direction of any person or persons, knowing or
having reason to believe that any person may be
endangered;
(b) the actor, with intent to intimidate or
harass another or with intent to damage a habitable
structure as defined in Subsection 76‐6‐101(2),
discharges a firearm in the direction of any building;
or
(c) the actor, with intent to intimidate or
harass another, discharges a firearm in the direction
of any vehicle.
Utah Code Ann. § 76‐10‐508(2) (LexisNexis Supp. 2007) (current
version at id. § 76‐10‐508.1 (2012)).
20100284‐CA 11 2013 UT App 71State v. Rasabout and Kaykeo
offense, not fifty offenses. The statute in effect at that time forbade
the possession or production of “‘any visual representation’” of
child pornography. Id. ¶ 25 (quoting Utah Code Ann. § 76‐5a‐2(3)
(1999)). Construing this provision “‘according to the fair import of
[its] terms to promote justice,’” id. (alteration in original) (quoting
Utah Code Ann. § 76‐1‐106 (1999)), the court held that “[t]he
clearest reading of the statute is that each individual ‘visual
representation’ of child pornography that is knowingly possessed
by a defendant constitutes the basis for a separate offense.” Id. ¶ 26.
“Therefore, the rule against multiplicity was not violated” when
Morrison was charged with fifty separate offenses. Id.
¶21 We approach the firearm discharge statute in the
same straightforward way. Under this statute, “[a] person
may not discharge any kind of dangerous weapon or
firearm” under the stated conditions. Utah Code Ann. § 76‐10‐
508(1)(a) (LexisNexis Supp. 2007). The crux of the question
is what the Legislature meant by the word discharge. The dictionary
definition of the verb discharge is clear. In the present context
it means simply to “fire a weapon,” MacmillanDictionary.com, http://
www.macmillandictionary.com/dictionary/american/discharge
(last visited March 14, 2013), or to “shoot,” Merriam‐Webster,
http://www.merriam‐webster.com/dictionary/discharge (last
visited March 14, 2013). We therefore conclude that the “clearest
reading of the statute” is that each act of firing a gun constitutes a
separate offense, or unit of prosecution. See Morrison, 2001 UT 73,
¶ 26. Here, Rasabout fired his weapon, or shot, twelve times.
Accordingly, reading the statute according to the “fair import” of
its terms as well as its plain language, these shots violated the
statutory prohibition twelve times. See Utah Code Ann. § 76‐1‐106
(LexisNexis 2012).7
7. Kaykeo was charged as a party to the offense. See Utah Code
Ann. § 76‐2‐202 (LexisNexis 2012).
20100284‐CA 12 2013 UT App 71State v. Rasabout and Kaykeo
¶22 So interpreted, the statute is sufficiently clear to “safeguard
conduct that is without fault from condemnation as criminal.” See
id. § 76‐1‐104(2). The present case poses no such danger, as
Rasabout’s multiple shots at the home and car were not “without
fault.” And we are satisfied that, as construed, the statute
“[prescribes] penalties which are proportionate to the seriousness
of offenses and which permit recognition or differences in
rehabilitation possibilities among individual offenders.” Id. § 76‐1‐
104(3). We agree with the State that “if one shot is dangerous, two
shots are even more dangerous, and 12 shots are more dangerous
still. Every time the gunman pulls the trigger, he fires a bullet that
could kill someone, damage property, or both . . . .” We recognize
that shooting twelve shots in rapid succession may not be
twelvefold more culpable than shooting a single shot, but we
cannot escape the conclusion that it is nevertheless more culpable.
¶23 Rasabout argues that because the statute “does not
specifically define” the term discharge, “the plain language of the
statute does not clearly indicate whether the legislature intended
the allowable unit of prosecution to be each ‘single shot’ fired as
the State argues, or the firing of the firearm which could result in
a series of shots.” Although the statute does not specifically define
discharge, we are not persuaded that this omission results in
ambiguity. To discharge a weapon means to fire or shoot it.
Rasabout cites no case, dictionary, or compendium to support his
assertion that, unlike words such as gunfire or burst, discharge can
mean firing a series of shots.8
8. Rasabout does cite one case that appears to have treated discharge
as meaning the firing of a series of shots. See McPherson v. State, 933
So. 2d 1114, 1118 (Ala. Crim. App. 2005). However, that case turned
on the issue of whether multiple victims could serve as the basis for
multiple counts of discharging a firearm into a dwelling. See id. The
court determined that the number of victims was irrelevant, but it
otherwise did not address the meaning of discharge. See id.
20100284‐CA 13 2013 UT App 71State v. Rasabout and Kaykeo
¶24 Rasabout and Kaykeo also rely on the unchallenged finding
of the trial court that “most of the shots were fired nonstop, and all
the shots were fired in less than a minute,” and thus that
Defendants had “one general intent in firing the several shots,
which was to intimidate or harass” the occupants of the house. This
finding is relevant to a determination of whether Defendants’ acts
were committed within a single criminal episode. But as noted
above, the fact that criminal acts fall within a single criminal
episode means that they must be charged in a single prosecution,
not that they must be charged in a single count.
¶25 Rasabout notes that other states are divided over whether a
series of gunshots constitutes a single discharge or multiple
discharges. This is certainly true. Some courts hold that each shot
fired constitutes a separate offense. See, e.g., Hennemeyer v.
Commonwealth, 580 S.W.2d 211, 214 (Ky. 1979) (holding that six
separate gunshots fired by a defendant at pursuing police over a
span of fifteen minutes constituted six separate counts of wanton
endangerment); State v. Morrow, 888 S.W.2d 387, 392–93 (Mo. Ct.
App. 1994) (“The conduct proscribed is complete on one shot. A
subsequent shot, whether moments or a substantial amount of time
later, creates the same danger which the statute was intended to
prevent. . . . [T]he individual act of shooting a single shot is
prohibited.”), superseded by statute on other grounds as stated in State
v. French, 79 S.W.3d 896, 899–900 (Mo. 2002) (en banc); State v.
Rambert, 459 S.E.2d 510, 513 (N.C. 1995) (holding that defendant
was properly charged with three counts of discharging a firearm
where “defendant’s actions were three distinct and, therefore,
separate events,” explaining that “[e]ach shot, fired from a pistol,
as opposed to a machine gun or other automatic weapon, required
that defendant employ his thought processes each time he fired the
weapon” and that “[e]ach act was distinct in time, and each bullet
hit the vehicle in a different place”).
¶26 Other courts hold that multiple shots fired in rapid
succession—or even not‐so‐rapid succession—constitute a single
offense. See, e.g., McPherson v. State, 933 So. 2d 1114, 1118 (Ala.
20100284‐CA 14 2013 UT App 71State v. Rasabout and Kaykeo
Crim. App. 2005) (holding that defendant could only be convicted
of one count of discharging a firearm into an occupied dwelling
because, regardless of the number of victims inside a dwelling,
defendant’s two shots “involved only one unit of prosecution,
which was the [defendant’s] act of discharging the firearm into the
[victims’] occupied dwelling”); Williams v. State, 90 So. 3d 931,
933–34 (Fla. Ct. App. 2012) (rejecting prosecution’s argument that
“each discharged bullet constituted a distinct act upon which
separate convictions could rest” where defendant “fired eight shots
in a short period of time with only a few seconds’ pause between
gunshots”); State v. Demongey, 2008‐NMCA‐066, ¶ 15, 187 P.3d 679(holding that firing three shots separated by minutes and distance
traveled was “unitary conduct,” where the shots were fired during
“one high‐speed chase, in an extreme attempt to escape from the
pursuing officer”).9
¶27 In addition, some states determine the unit of prosecution
based on judicial balancing of various factors, many of which are
related more to the facts of the crime than to the language of their
statutes. See, e.g., People v. Rodarte, 547 N.E.2d 1256, 1261–62 (Ill.
App. Ct. 1989) (“Factors to be considered in determining whether
a defendant’s conduct constitutes separate acts or merely distinct
parts of a single act are: (1) the time interval occurring between
successive parts of the defendant’s conduct; (2) the existence of an
intervening event; (3) the identity of the victim; (4) the similarity of
the acts performed; (5) whether the conduct occurred at the same
location; and (6) prosecutorial intent.”); Harrell v. State, 277 N.W.2d
462, 472–74 (Wis. Ct. App. 1979) (identifying the following factors:
(1) the nature of the act; (2) temporal proximity; (3) multiple
locations for an assault (including multiple locations on the victim’s
9. Other states have found the unit of prosecution to be the number
of victims targeted by the shooting. See, e.g., Burleson v. Saffle, 2002
OK CR 15, ¶ 7, 46 P.3d 150 (holding that the text and context of the
state’s drive‐by shooting statute “indicate[] the Legislature’s
recognition that drive‐by shootings often involve more than one
victim—that is, constitute a crime against more than one person”).
20100284‐CA 15 2013 UT App 71State v. Rasabout and Kaykeo
body); (4) defendant’s intent; (5) cumulative punishment;
(6) number of physical acts, such as pulls of a trigger; (7) number
of victims); see also State v. Fillman, 223 P.3d 827, 834 (Kan. Ct. App.
2010) (applying similar factors in conjunction with an analysis of
statutory language).
¶28 However, our analysis begins with the text of the statute
and, if that text is unambiguous, ends there. See Richards v. Brown,
2012 UT 14, ¶ 23, 274 P.3d 911 (“Where a statute’s language is
unambiguous and provides a workable result, we need not resort
to other interpretive tools, and our analysis ends.”). And the fact
that courts in other states—looking at other factual situations,
interpreting other statutes, and in many cases using other
interpretive approaches—come to inconsistent conclusions does
not persuade us that our statute is ambiguous.
¶29 Finally, Rasabout argues, where the statute does not address
the allowable unit of prosecution, he is entitled to lenity. Rasabout
cites the United States Supreme Court’s statement that “it is
appropriate, before we choose the harsher alternative, to require
that [the legislature] should have spoken in language that is clear
and definite. We should not derive criminal outlawry from some
ambiguous implication.” United States v. Universal C.I.T. Credit
Corp., 344 U.S. 218, 221–22 (1952).
¶30 To be clear, while the rule of lenity may in some contexts
serve to safeguard a defendant’s constitutional rights, the rule is
one of statutory construction, not constitutional law. See, e.g., Clark
v. Martinez, 543 U.S. 371, 398 (2005) (Thomas, J., dissenting) (“[T]he
rule of lenity is wholly independent of the rules governing
constitutional adjudication.”); Bifulco v. United States, 447 U.S. 381,
387 (1980) (describing the rule of lenity as a “principle of statutory
construction”); Gollehon v. Mahoney, 626 F.3d 1019, 1027 (9th Cir.
2010) (describing the rule of lenity as “simply a canon of statutory
construction”); United States v. Rivera, 265 F.3d 310, 312 (5th Cir.
2001) (describing the rule of lenity as “a rule of statutory
construction . . . rather than a separate constitutional framework for
20100284‐CA 16 2013 UT App 71State v. Rasabout and Kaykeo
raising claims”); Lurie v. Wittner, 228 F.3d 113, 126 (2d Cir. 2000)
(“The rule of lenity is a canon of statutory construction, not in itself
federal law.”); Sabetti v. Dipaolo, 16 F.3d 16, 19 (1st Cir. 1994)
(stating that, other than the “fair notice” guarantee, petitioner “has
not pointed to anything in the federal Constitution . . . that would
require a state court to apply the rule of lenity when interpreting a
state statute”).
¶31 More specifically, lenity is “‘an ancient rule of statutory
construction that penal statutes should be strictly construed against
the government . . . and in favor of the persons on whom such
penalties are sought to be imposed.’” United States v. Mabry, 518
F.3d 442, 452 (6th Cir. 2008) (omission in original) (quoting 3
N. Singer, Sutherland Statutory Construction (6th ed. 2007)).
However, our Legislature appears to have rejected the rule of lenity
as a permissible canon of statutory construction, stating that “[t]he
rule that a penal statute is to be strictly construed shall not apply
to this code, any of its provisions, or any offense defined by the
laws of this state.” Utah Code Ann. § 76‐1‐106 (LexisNexis 2012);
see also State v. Knepper, 418 P.2d 780, 782 (Utah 1966) (applying a
previous version of this statute to reject a defendant’s invocation of
the rule of lenity). Cf. People v. Morrison, 120 Cal. Rptr. 3d 502, 506
(Cal. Ct. App. 2011) (referring to California’s similarly worded
provision as “California’s anti‐lenity statute”). But see State v.
Bradshaw, 2006 UT 87, ¶ 10, 152 P.3d 288 (noting, while neither
rejecting nor applying the rule of lenity, that courts may not apply
the rule, which “illuminate[s] definition indirectly,” without first
looking to “authoritative extra‐textual sources,” such as non‐Utah
precedent); State v. Kenison, 2000 UT App 322, ¶ 8, 14 P.3d 129(following the rule “that a defendant is entitled to the benefit of the
lesser penalty afforded by an amended statute made effective prior
to sentencing” and labeling it a “rule of lenity” (citation and
internal quotation marks omitted)).
¶32 At any rate, even if section 76‐1‐106 would permit us to
invoke the rule of lenity where a criminal statute suffers from
ambiguity, as Rasabout urges, or “egregious ambiguity,” as at least
20100284‐CA 17 2013 UT App 71State v. Rasabout and Kaykeo
one court has held, see People v. Manzo, 270 P.3d 711, 717 (Cal. 2012),
we are not persuaded that the statute before us falls into either
category. Thus, we need not resort to that interpretive canon here.
¶33 In sum, because we conclude that the unit of prosecution
under the firearm discharge statute is each discrete shot, we
reverse the trial court’s ruling merging the twelve counts into a
single count for each defendant.10
II. Ineffective Assistance of Counsel
¶34 On cross‐appeal, Kaykeo contends that his trial counsel was
constitutionally deficient because he did not adequately investigate
Kaykeo’s alibi. Kaykeo argues that his counsel’s investigation was
inadequate because he failed to contact corroborating witnesses
and failed to request police dispatch logs that would have
corroborated the time frame of his alibi.
¶35 A claim of ineffective assistance of counsel requires proof of
two elements: “First, the defendant must show that counsel’s
performance was deficient. . . . Second, the defendant must show
that the deficient performance prejudiced the defense.” Strickland
v. Washington, 466 U.S. 668, 687 (1984); see also State v. Lenkart, 2011
UT 27, ¶ 25, 262 P.3d 1. To prove constitutionally deficient
performance, “the defendant must show that counsel’s
representation fell below an objective standard of reasonableness”
in light of all the circumstances. Strickland, 466 U.S. at 687–88.
Furthermore, the defendant must overcome “a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance” and that “under the circumstances, the
challenged action might be considered sound trial strategy.” Id. at
689 (citation and internal quotation marks omitted); see also State v.
Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92.
10. We express no opinion on how the firearm discharge statute
would apply to a weapon that propels multiple projectiles with a
single pull of the trigger.
20100284‐CA 18 2013 UT App 71State v. Rasabout and Kaykeo
¶36 “[O]ne of criminal defense counsel’s most fundamental
obligations is to investigate the underlying facts of a case. This duty
is not optional; it is indispensable.” Lenkart, 2011 UT 27, ¶ 28. As
our supreme court held in State v. Templin, 805 P.2d 182 (Utah
1990), the failure to adequately investigate a case constitutes
deficient performance:
If counsel does not adequately investigate the
underlying facts of a case, including the availability
of prospective defense witnesses, counsel’s
performance cannot fall within the “wide range of
reasonable professional assistance.” This is because
a decision not to investigate cannot be considered a
tactical decision. It is only after an adequate inquiry
has been made that counsel can make a reasonable
decision to call or not to call particular witnesses for
tactical reasons.
Id. at 188 (quoting Strickland, 466 U.S. at 689); see also Gregg v. State,
2012 UT 32, ¶¶ 23–25, 31–34, 279 P.3d 396; Lenkart, 2011 UT 27,
¶¶ 27–28.
¶37 The adequacy or reasonableness of the investigation is the
controlling factor. See Taylor v. State, 2007 UT 12, ¶ 47, 156 P.3d 739(citing Wiggins v. Smith, 539 U.S. 510, 522–23 (2003)); State v. Hales,
2007 UT 14, ¶¶ 69–70, 152 P.3d 321. “[S]trategic choices made after
less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the
limitations on investigation.ʺ Strickland, 466 U.S. at 690–91; see also
Taylor, 2007 UT 12, ¶ 47. Thus, “a particular decision not to
investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s
judgments.” Strickland, 466 U.S. at 691; see also Taylor, 2007 UT 12,
¶ 48.
¶38 In determining the reasonableness of an investigation, “we
look to the information available to trial counsel” at the time of the
20100284‐CA 19 2013 UT App 71State v. Rasabout and Kaykeo
challenged conduct. Taylor, 2007 UT 12, ¶¶ 48–49; see also Hales,
2007 UT 14, ¶ 70. Thus, “inquiry into counsel’s conversations with
the defendant may be critical to a proper assessment of counsel’s
investigation decisions.” Strickland, 466 U.S. at 691. “[W]hen a
defendant has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel’s failure
to pursue those investigations may not later be challenged as
unreasonable.” Id.
¶39 That is precisely what happened here. Kaykeo claims that
his counsel was ineffective because he failed to contact potential
alibi witnesses. Kaykeo stated in his declaration that he provided
his defense counsel the names and contact information of four
people who were at the party with him at the time of the shooting.
Although Kaykeo did not name the four individuals in his
declaration, Kaykeo provided the trial court with declarations from
the host of the party and the driver of the BMW that was pulled
over with Kaykeo and Rasabout. If believed, these witnesses’
testimony may well have exonerated Kaykeo. The host stated that
Kaykeo was at the party until he left to take Rasabout home. The
driver of the BMW confirmed this account and stated that he
followed Kaykeo and Rasabout from the party, that the car Kaykeo
was driving never left his sight, and that he never saw or heard any
shots fired from Kaykeo’s car.
¶40 However, according to the affidavit provided by Kaykeo’s
defense counsel, Kaykeo told his attorney that he did not know
anyone at the party and he never provided an address or location
of the party. Kaykeo’s defense counsel stated that despite his
requests for potential witness names, Kaykeo never provided him
with any names, stating only that he was at the party with his
girlfriend but that she “would not be helpful because she was ‘mad
at him.’”
¶41 The trial court accepted Kaykeo’s defense counsel’s version
of events. Kaykeo had stated at trial that he only knew the general
location of the party and, aside from his girlfriend and Rasabout,
20100284‐CA 20 2013 UT App 71State v. Rasabout and Kaykeo
the others at the party were only acquaintances. In light of this
testimony, the trial court stated that the affidavit provided by
Kaykeo’s counsel was consistent with Kaykeo’s trial testimony,
while Kaykeo’s declaration was not.
¶42 Kaykeo did not request an evidentiary hearing below.
Therefore, our review is limited to the affidavits and declarations
provided to the trial court. See State v. Litherland, 2000 UT 76, ¶ 17,
12 P.3d 92. Nor does Kaykeo mention or challenge the trial court’s
credibility determination. When “[n]either party challenges the
trial court’s findings of fact, . . . we assume them to be correct.”
Jacobs v. Hafen, 917 P.2d 1078, 1078 (Utah 1996). We also defer to the
trial court’s determination of the credibility of Kaykeo and his
counsel, not based on its review of the dueling affidavits, but based
on its superior position to judge the credibility of Kaykeo and his
counsel, having observed them at trial. Cf. State v. Calliham, 2002
UT 86, ¶ 23, 55 P.3d 573 (deferring to a trial court’s ruling that a
psychological examination was not needed, even though that
ruling was based primarily on a preliminary trial transcript,
because in contrast to the appellate court’s examination of a cold
record, the trial court made its determination “having personally
observed the quality of the evidence, the tenor of the proceedings,
and the demeanor of the parties”).
¶43 Therefore, according to the facts accepted by the trial court,
Kaykeo never informed his counsel of the two witnesses who could
corroborate his alibi. Kaykeo’s counsel inquired about potential
witnesses and was given only one lead. He did not follow that lead,
because Kaykeo dissuaded him from doing so.
¶44 Based on these facts, the only possible basis for a claim of
inadequate investigation is counsel’s failure to follow up with the
girlfriend. But this failure did not constitute deficient performance
in this case. As noted above, in deciding whether Kaykeo’s counsel
provided deficient performance, we “must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland v. Washington, 466
20100284‐CA 21 2013 UT App 71State v. Rasabout and Kaykeo
U.S. 668, 689 (1984). Furthermore, the adequacy of an investigation
“may be determined or substantially influenced by the defendant’s
own statements or actions.” Id. at 691. Accordingly, we cannot
ignore—nor can we expect Kaykeo’s counsel to have
ignored—Kaykeo’s statement that his girlfriend “would not be
helpful because she was ‘mad at him.’” Counsel could have
interpreted this statement to mean that she would not be willing to
provide names of other witnesses, that she would lie out of spite
and provide harmful but false testimony, or that she would be
unwilling to lie and would provide harmful but true testimony.
Because Kaykeo gave his counsel “reason to believe that pursuing
certain investigations would be fruitless or even harmful, counsel’s
failure to pursue those investigations may not later be challenged
as unreasonable.” See id. In light of these facts, Kaykeo’s counsel
“rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.” See id. at 690.
¶45 Regarding Kaykeo’s claim of ineffective assistance based on
his counsel’s failure to obtain the police dispatch logs, we note that
the dispatch logs are not part of the record on appeal. Without
them, Kaykeo cannot prove that his counsel acted deficiently.
“Where the record appears inadequate in any fashion, ambiguities
or deficiencies resulting therefrom simply will be construed in
favor of a finding that counsel performed effectively.” Litherland,
2000 UT 76, ¶ 17. Furthermore, Kaykeo cannot prove that he was
prejudiced by his counsel’s failure to request the dispatch logs. A
defendant “cannot meet the prejudice prong of the Strickland test
simply by identifying unexplored avenues of investigation. Rather,
he must demonstrate a reasonable probability that further
investigation would have yielded sufficient information to alter the
outcome of his [case].” Parsons v. Barnes, 871 P.2d 516, 523–24 (Utah
1994); see also Litherland, 2000 UT 76, ¶ 17; State v. Chacon, 962 P.2d
48, 50 (Utah 1998) (stating that prejudice may not be established as
“a speculative matter” (citation and internal quotation marks
omitted)).
20100284‐CA 22 2013 UT App 71State v. Rasabout and Kaykeo
¶46 Because Kaykeo has failed to demonstrate that his counsel
was deficient in failing to contact potential witnesses, and that his
counsel’s failure to obtain the dispatch logs was deficient and
prejudiced his case, Kaykeo’s claim of ineffective assistance fails.11
CONCLUSION
¶47 The trial court erred by merging Rasabout’s and Kaykeo’s
twelve counts of discharge of a firearm into one count each. Based
on the language of the statute, the allowable unit of prosecution is
one count for each shot fired from the weapon. Therefore, we
reverse the trial court’s order merging the separate counts and
remand for resentencing.
11. Kaykeo claims that his trial counsel was ineffective for a
number of other reasons, such as failing to investigate possible
legal defenses before trial and failing to file “even a single motion
or proposed jury instruction” based on those defenses. In his
opening brief, Kaykeo does not identify which legal defenses trial
counsel should have asserted, which motions his counsel should
have filed, or which jury instructions should have been given.
Therefore, he has not carried his burden of persuasion on appeal.
See Utah R. App. P. 24(a)(9); State v. Thomas, 961 P.2d 299, 305 (Utah
1998). See also State v. Lenkart, 2011 UT 27, ¶ 27, 262 P.3d 1 (“[A]
defendant must identify specific acts or omissions which, under the
circumstances, show that counsel’s representation fell below an
objective standard of reasonableness.” (emphasis added) (citation
and internal quotation marks omitted)). In his reply brief, Kaykeo
argues that his counsel was ineffective for not moving to bifurcate
Kaykeo and Rasabout’s trial and for not challenging the admission
of evidence of Rasabout’s gang affiliation under rule 404(b) of the
Utah Rules of Evidence. “It is well settled that issues raised by an
appellant in the reply brief that were not presented in the opening
brief are considered waived and will not be considered by the
appellate court.” Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 903(citation and internal quotation marks omitted).
20100284‐CA 23 2013 UT App 71State v. Rasabout and Kaykeo
¶48 On cross‐appeal, Kaykeo has not established that his counsel
provided ineffective assistance at trial. Therefore, the trial court
correctly denied his motion for new trial on this ground, and we
affirm.
ORME, Judge (concurring in part and concurring in the result in
part):
¶49 I concur in section I of the lead opinion but concur only in
the result reached in section II. Given the difficulties in determining
the adequacy of trial counsel’s performance based on conflicting
affidavits and given the lack of an evidentiary hearing below to
resolve the conflict, I am persuaded that the best course is to
resolve the ineffective assistance claim raised by Kaykeo12 purely
on the prejudice prong, as our cases allow us to do. See, e.g., State
v. Arguelles, 921 P.2d 439, 441 (Utah 1996) (“Unless [the defendant]
has demonstrated that he was prejudiced by his trial counsel’s
performance, we need not decide whether that performance was
deficient.”); State v. Strain, 885 P.2d 810, 814 (Utah Ct. App. 1994)
(“[I]n cases in which it is ‘easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice,’ we will do so
without addressing whether counsel’s performance was
professionally unreasonable.”) (quoting Strickland v. Washington,
466 U.S. 668, 697 (1984)).
¶50 The requisite showing of prejudice in an ineffective
assistance claim cannot be established by simply “identifying
unexplored avenues of investigation.” Parsons v. Barnes, 871 P.2d
516, 523 (Utah 1994). Instead, a defendant must show a reasonable
probability that further investigation would have resulted in a
more favorable outcome at trial. See id. at 523–24. While Kaykeo
12. Rasabout does not join in Kaykeo’s cross appeal or otherwise
challenge the jury’s verdict against him. The jury’s determination
that Rasabout fired the shots at the house, therefore, must be taken
as a given in evaluating Kaykeo’s claim.
20100284‐CA 24 2013 UT App 71State v. Rasabout and Kaykeo
avers that his trial counsel failed to investigate and call witnesses
capable of corroborating his version of the events, Kaykeo wholly
fails to establish that the added testimony of these witnesses would
create a reasonable probability of acquittal. Even assuming that
(1) these potential witnesses were subject to subpoena at the time
of trial or that they were ready, willing, and able to testify
voluntarily and (2) that there was no obvious obstacle to these
witnesses being believed by the jury—e.g., prior criminal history
admissible under rule 609 of the Utah Rules of Evidence—it is
doubtful that the story these witnesses were ostensibly prepared to
tell was even possible, let alone plausible.
¶51 According to the declarations of the two uncalled witnesses,
Kaykeo had been at a party approximately five miles from where
the shootings occurred for the entire evening and did not leave
until Rasabout appeared and asked Kaykeo to be his designated
driver. The uncalled witness who claims he drove behind them
after they left the party declared that Rasabout’s vehicle, which
Kaykeo was driving, never left his sight and that he did not see or
hear any gunshots coming from the vehicle before they were pulled
over. This proposed testimony, according to Kaykeo, supposedly
substantiates his unconvincing narrative that Rasabout, after
engaging in two drive‐by shooting attacks on the same house,
immediately drove five miles to a party with the hope of finding a
designated driver to take him home and then—to add insult to
injury—allowed his unwitting driver to go right past the home he
had riddled with bullets only minutes before. To believe such a
fantastical tale, a jury would also have to believe that although
Rasabout formed the plan to drive five miles in search of a
designated driver, he did not have the good sense to direct that
driver away from the scene of his just‐completed crimes.13
13. Kaykeo testified that he and Rasabout were close, even
describing Rasabout as a “cousin.” Given that, the jury would have
to assume that Rasabout was completely indifferent to the obvious
(continued...)
20100284‐CA 25 2013 UT App 71State v. Rasabout and Kaykeo
¶52 The timing of all these events only serves to exacerbate the
utter implausibility of Kaykeo’s alibi. The police arrived only
minutes after the second round of shooting took place, and within
a few moments of their arrival Kaykeo and Rasabout drove by and
were pulled over. It would have seemed impossible to the jury, as
it does to me, that, within such a minuscule time frame, Rasabout
was able to drive five miles up the road, enter a party, locate
Kaykeo, get Kaykeo to agree to drive him home, leave the party,
and then head five miles back to where the shooting took place as
a mere coincidence of heading for home. Even assuming that
Rasabout was able to extricate Kaykeo from the party almost
instantaneously, and without allowing any time for Kaykeo to say
his goodbyes or gather his belongings, it is completely implausible,
if not impossible, that even the round trip drive could be
completed in that small amount of time.14
¶53 In my view, the proposed testimony of the uncalled
witnesses does nothing to alleviate the many failings of Kaykeo’s
outlandish alibi defense. Consequently, I would resolve Kaykeo’s
ineffective assistance claim entirely on the prejudice prong of the
Strickland test. He simply was not prejudiced by the jury’s being
spared these tall tales.
13. (...continued)
risk that his close friend could be implicated in his crime if they
drove past the scene of the crime on their way home.
14. Kaykeo and Rasabout were pulled over and arrested
approximately 15 minutes after the shooting occurred. Taking
judicial notice of the times and distances involved, as confirmed by
MapQuest, the travel time from the scene of the crime to the party
and then back—with no delay at the party once there—is 24
minutes. By those calculations, Kaykeo and Rasabout would have
arrived roughly 10 minutes late to their own arrest.
20100284‐CA 26 2013 UT App 71