State v. Reyos

2018 UT App 134THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
FRANK PAUL REYOS,
Appellant.
Opinion
No. 20160557-CA
Filed July 6, 2018
Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 141910332
Teresa L. Welch, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS
concurred.
CHRISTIANSEN, Judge:
¶1 A jury convicted Defendant Frank Paul Reyos of three
counts of aggravated robbery, all first degree felonies, with an
enhanced penalty under Utah Code section 76-3-203.1
(the Group Crime Enhancement) for having “acted in concert
with two or more persons.” Defendant contends that his trial
counsel was ineffective for failing to object to two eyewitness
identifications as unreliable. He also contends that the evidence
was insufficient to support his aggravated robbery convictions
and to support application of the Group Crime Enhancement.
We affirm.
State v. Reyos
BACKGROUND1
¶2 On the evening of September 7, 2012, three friends
(Witness One, Witness Two, and Witness Three) met at a bar in
downtown Salt Lake City. Witness One drank three beers,
Witness Two drank one cocktail, and Witness Three drank one
beer and one cocktail. At one point, the friends stepped into an
alley behind the bar to smoke a cigarette. Although it was dark
outside, there was ambient lighting in the alley from a nearby
lamppost and a few “parking lights.” The alley was designed so
that vehicles had to enter and leave by the same route, and there
were no surveillance cameras in the alley.
¶3 Approximately ten minutes after the friends went outside,
an “older, four-door, . . . dark-green Honda” with tinted
windows drove into the alley and made a U-turn. The driver and
the person in the passenger seat were both females. The driver
stopped the car approximately thirty feet from the friends,
angling the car toward the alley’s exit. Two men then got out of
the back seat of the car and started to approach the friends. As
they approached, one of the men asked the friends, “Does this
place ID?” Witness One responded, “Yes, it’s a bar. They will
ID.” One of the men (Robber One) stopped approximately three
to five feet from Witnesses One and Two. The second man
(Robber Two) stopped less than two feet from Witness Three,
who was separated from Witnesses One and Two by a “big,
metal thing.”
¶4 Both robbers pulled out guns and told the friends to
“[g]ive us all your shit.” Witnesses One and Two remembered
1. We review the facts in the light most favorable to the jury’s
verdict and recite them accordingly. State v. Holgate, 2000 UT 74,
¶ 2, 10 P.3d 346. “We present conflicting evidence only as
necessary to understand issues raised on appeal.” Id.20160557-CA 2 2018 UT App 134State v. Reyos
Robber One’s gun as having a long barrel—approximately eight
to ten inches long. Witness One stepped slightly in front of
Witness Two to stop Robber One from getting any closer to
Witness Two. Witness One gave Robber One his wallet and cell
phone, and Witness Two gave Robber One her purse. Witness
Three gave Robber Two a small amount of cash. During this
time, Robber One did not point his gun at Witnesses One or
Two, instead keeping it by his side. The robbers then returned to
the car, dropping Witness One’s cell phone in the alley on the
way. Once the robbers were in the back seat of the car, the
female driver “sped” out of the alley. The whole event lasted
approximately two to three minutes.
¶5 Shortly thereafter, Witness One called 911. When the
responding officer arrived, he took a description of Robber One
from Witnesses One and Two; Witness Three had already left the
scene. Witness One described Robber One as a twenty-nine-
year-old Hispanic male, with a “thin build,” weighing 160
pounds, with a shaved head and no facial hair. He stated that
Robber One was heavily tattooed, with tattoos on his arms, legs,
neck, and face. Witness One specifically reported that Robber
One had a teardrop tattoo on his face. Witness One stated that
the robbers left in a two-door car with tinted windows and that
the car was occupied by two females and two males. Witness
Two reported that the car had four doors. A detective took over
the case the next day.
¶6 Three days later, a different detective was looking for
Defendant on an unrelated matter. The relevant car in that
matter was a 1997 green Honda Accord. The detective located
the car and later observed Defendant driving it with a female
passenger. When the detective investigating the alley robberies
heard about Defendant and the car, he suspected that Defendant
might have participated in the alley robberies.
20160557-CA 3 2018 UT App 134State v. Reyos
¶7 The investigating detective put together a photo lineup,
using a photo of Defendant and five photos of other men with
similar characteristics, including facial tattoos and no hair (or a
shaved head). The photos were in color and were the same size.
The investigating detective asked another detective to
administer the photo lineup to Witnesses One and Two.2 Six
days after the robberies, the other detective conducted a photo
lineup with Witness Two while she was at work. The detective
explained the photo lineup procedure and told Witness Two that
she should not feel obligated to pick anyone. The detective then
showed the photos to Witness Two, and she identified
Defendant as Robber One. When the detective asked about
Witness Two’s confidence level in her choice, she stated it was
“very high.” Four days later, the same detective repeated the
photo lineup procedure with Witness One at the police station.
Witness One also picked Defendant’s photo as the person who
robbed them at gunpoint. He later testified that he was “very
confident” in his identification.
¶8 Thereafter, the State charged Defendant with three counts
of aggravated robbery, first degree felonies, with each count
enhanced to “an indeterminate prison term of not less than five
years in addition to the statutory minimum prison term for the
offense, and which may be for life” under the Group Crime
Enhancement provision. See Utah Code Ann. § 76-3-203.1(4)(e)
(LexisNexis 2012).
¶9 At trial, Witnesses One and Two both identified
Defendant as Robber One and discussed their observations from
the night of the robbery. Defendant’s trial counsel focused on
attacking the eyewitnesses’ identifications of Defendant through
cross-examination and in closing argument. He also presented
evidence that, shortly after the robbery occurred, Defendant’s
2. Witness Three did not participate in a photo lineup.
20160557-CA 4 2018 UT App 134State v. Reyos
picture “was blasted all over the news online, on TV, [and] in
print” in connection with an unrelated matter. Trial counsel
suggested to the jury that the eyewitnesses “made the mistake of
subconsciously seeing that information, and they recognized
that face from online, and that’s why they picked [Defendant] . . .
out of the lineups.” The jury was also given an instruction
advising them about various factors that affect the reliability of
eyewitness identifications. See State v. Long, 721 P.2d 483, 492–93
(Utah 1986) (requiring trial courts to give a cautionary jury
instruction “whenever eyewitness identification is a central issue
in a case and such an instruction is requested by the defense”).
¶10 The jury ultimately found Defendant guilty of three
counts of aggravated robbery and determined that the Group
Crime Enhancement applied. Defendant appeals.
ISSUES AND STANDARDS OF REVIEW
¶11 Defendant contends that his trial counsel was
constitutionally ineffective for failing to challenge the
admissibility of the eyewitnesses’ identifications of him. “An
ineffective assistance of counsel claim raised for the first time on
appeal presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6,
89 P.3d 162. To prove his ineffective assistance of counsel claim,
Defendant must demonstrate that his “counsel’s performance
was objectively deficient” and that “a reasonable probability
exists” that he “would have obtained a more favorable outcome
at trial” but for his counsel’s deficient conduct. Id.¶12 Defendant also contends that the evidence was
insufficient to support his convictions and the application of the
Group Crime Enhancement. Defendant concedes that he did not
preserve these arguments, and he seeks review under the
plain-error and ineffective-assistance-of-counsel exceptions to
the preservation requirement. A “trial court plainly errs if it
20160557-CA 5 2018 UT App 134State v. Reyos
submits the case to the jury and thus fails to discharge a
defendant when the insufficiency of the evidence is apparent to
the court.” State v. Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346. “[T]o
establish plain error, a defendant must demonstrate first that the
evidence was insufficient to support a conviction of the crime
charged and second that the insufficiency was so obvious and
fundamental that the trial court erred in submitting the case to
the jury.” Id. When a defendant challenges the sufficiency of the
evidence, we review “the evidence and all inferences drawn
therefrom in a light most favorable to the jury’s verdict.” Id. ¶ 18.
As explained above, Defendant’s ineffective assistance of
counsel claims present questions of law, and Defendant must
demonstrate that his counsel’s performance was deficient and
that the deficient performance prejudiced his defense. See Clark,
2004 UT 25, ¶ 6.
ANALYSIS
I. Eyewitness Identifications
¶13 Defendant contends that trial counsel was ineffective for
failing to object to the eyewitnesses’ identifications of him.
¶14 To prevail on his ineffective assistance of counsel claim,
Defendant must show both that trial counsel’s performance was
deficient and that this deficient performance prejudiced his
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). In
demonstrating that counsel’s performance was deficient,
Defendant must “rebut the strong presumption that ‘under the
circumstances, the challenged action might be considered sound
trial strategy.’” State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92(quoting Strickland, 466 U.S. at 689).
¶15 In State v. Ramirez, 817 P.2d 774 (Utah 1991), our supreme
court explained the standard for Utah courts to use in analyzing
20160557-CA 6 2018 UT App 134State v. Reyos
the admissibility of eyewitness identifications. See id. at 779, 781–
82. The supreme court outlined five factors courts should
consider in determining whether an eyewitness identification is
“sufficiently reliable that its admission and consideration by the
jury will not deny the defendant due process.” Id. at 779, 781.
“The ultimate question to be determined is whether, under the
totality of the circumstances, the identification was reliable.” Id.
at 781. The five Ramirez factors include:
“(1) [T]he opportunity of the witness to view the
actor during the event; (2) the witness’s degree of
attention to the actor at the time of the event;
(3) the witness’s capacity to observe the event,
including his or her physical and mental acuity;
(4) whether the witness’s identification was made
spontaneously and remained consistent thereafter,
or whether it was the product of suggestion; and
(5) the nature of the event being observed and the
likelihood that the witness would perceive,
remember and relate it correctly. This last area
includes such factors as whether the event was an
ordinary one in the mind of the observer during
the time it was observed, and whether the race of
the actor was the same as the observer’s.”
Id. (alteration in original) (quoting State v. Long, 721 P.2d 483, 493
(Utah 1986)).
¶16 Because Defendant challenges his convictions on the basis
of ineffective assistance of counsel, “we are not directly tasked
with determining whether the eyewitness testimony was
admissible.” See State v. Craft, 2017 UT App 87, ¶ 18, 397 P.3d
889. Nevertheless, the admissibility of the evidence necessarily
informs our determination of whether trial counsel performed
deficiently in not seeking to have it excluded. Id.20160557-CA 7 2018 UT App 134State v. Reyos
¶17 Recently, in State v. Lujan, 2015 UT App 199, 357 P.3d 20,
cert. granted, 364 P.3d 48 (Utah 2015), this court observed that
“[w]e have every reason to believe . . . that Ramirez must be
revisited” in light of the progress in “scientific and legal research
regarding the reliability of eyewitness identifications,” and we
urged our supreme court to reconsider Ramirez. Id. ¶ 10 n.1. Our
supreme court granted certiorari in Lujan but has not yet issued
a decision. Consequently, “Ramirez remains the standard by
which we evaluate eyewitness identification evidence, and we
must evaluate counsel’s performance in light of that standard.”
See Craft, 2017 UT App 87, ¶ 19 (quotation simplified).
¶18 In Ramirez, the relevant eyewitness viewed the
perpetrator from a distance of ten to thirty feet for somewhere
between “a few seconds” and “a minute or longer.” 817 P.2d at
782 (internal quotation marks omitted). The perpetrator was
“wearing a mask over the lower part of his face,” and the
eyewitness was unable to see the perpetrator’s face except for his
“small eyes.” Id. The eyewitness could otherwise describe only
the perpetrator’s general height and clothing. See id. at 784. At
the time he viewed the perpetrator, the eyewitness’s attention
was divided between the perpetrator and another man, who was
threatening and swinging a pipe at the eyewitness. Id. at 783.
Despite the man with the pipe, the eyewitness made an effort to
look at the perpetrator, “trying to get a good description.” Id.
The eyewitness had good eyesight, and he was not impaired by
fatigue, injury, drugs, or alcohol. Id.
¶19 Approximately thirty minutes to an hour after the
incident, the eyewitness identified the defendant while the
defendant was handcuffed to a chain link fence with the
headlights of several police cars trained on him. Id. at 783–84.
The eyewitness viewed the defendant from the back seat of a
police car, and officers told the eyewitness beforehand that they
had apprehended a suspect who fit the description of the
perpetrator the witness had seen earlier that night. Id. at 784.
20160557-CA 8 2018 UT App 134State v. Reyos
Although it was “an extremely close case,” and although “[t]he
blatant suggestiveness of the showup” was “troublesome” and
“compounded because none of the witnesses . . . ever saw the
full face of the [perpetrator],” our supreme court ultimately
determined that the identification was sufficiently reliable to be
admissible. Id.¶20 Applying the Ramirez factors to the circumstances of this
case, we conclude that the eyewitness identifications here are at
least as reliable as the eyewitness identification in Ramirez. The
fourth Ramirez factor addresses the eyewitnesses’ later
identification of Robber One; the other factors address the
eyewitnesses’ observation of the event.
A. Opportunity to View Robber One
¶21 “The first factor to be considered in determining the
reliability of the identification is the opportunity of the witness
to view the actor during the event.” Id. at 782. Under this factor,
relevant circumstances include
the length of time the witness viewed the actor; the
distance between the witness and the actor;
whether the witness could view the actor’s face; the
lighting or lack of it; whether there were
distracting noises or activity during the
observation; and any other circumstances affecting
the witness’s opportunity to observe the actor.
Id.
¶22 In this case, the eyewitnesses testified that the robberies
lasted between two and three minutes. Witness One was “face-
to-face three feet away” from Robber One, and Witness Two was
“four to five feet away” from Robber One. Witness Two clarified
that even though Witness One had stepped between her and
20160557-CA 9 2018 UT App 134State v. Reyos
Robber One, Witness One was not directly in front of her and
she could still “see [Robber One’s] full body.” Robber One’s face
was not obstructed during the crime. Although the robberies
occurred outside at night, the eyewitnesses testified that the
alley was “not pitch black”—there was “some ambient light”
from lampposts and a “few . . . parking lights.” Witness One
testified that “even though it was a little bit dark in the alley,
[he] could see tattoos on [Robber One’s] face just fine.” He
further stated that “[t]here was enough light” for him to see the
color, make, and model of the getaway car, and he could see that
the car’s windows were tinted. These facts indicate that the
eyewitnesses had an adequate opportunity to view Robber One.
B. Degree of Attention
¶23 The second factor contemplates “the witness’s degree of
attention to the actor at the time of the event.” Id. at 781
(quotation simplified). The record indicates that the
eyewitnesses first began paying attention to the robbers when
the robbers exited the car and started to approach them. Witness
One testified that the robbers started talking to the eyewitnesses
from about thirty feet away and that he thought the robbers’
question about whether the bar checked IDs “was a really
strange question.” See supra ¶ 3. As the robbers continued their
approach, “they were trying to . . . make small talk” with the
eyewitnesses, and Witness One became “more on alert and
concern[ed]” as the robbers got closer. Witnesses One and Two
testified that Robber One pulled out a gun and told them to
“[g]ive us all your shit” or “[g]ive me everything you’ve got.”
They both remembered the gun as having a long barrel.
Witnesses One and Two further testified that, during the
robberies, Robber One held the gun “in his right hand down by
his side” and “didn’t point it directly” at them.
¶24 Witness Two testified that she “had been looking at
[Robber One’s] face” until he pulled out the gun, at which point
20160557-CA 10 2018 UT App 134State v. Reyos
her focus shifted to the gun. But she also stated that she looked
at Robber One’s face again after he brought out the gun. Both
eyewitnesses observed that as Witness One was reaching for his
wallet, Robber One was “getting a little flustered” and was
“really nervous.” Witness One further testified that although he
had a “sense of what was going on” with Witness Three and
Robber Two, he was “focused on what was happening in front of
[him]” with Robber One. While the presence of the gun and
Robber Two necessarily diverted some of the eyewitnesses’
attention from Robber One, overall, the facts indicate that
Robber One was the focus of their attention.
C. Capacity to Observe
¶25 The third factor is “whether the witness had the capacity
to observe the actor during the event.” Ramirez, 817 P.2d at 783.
Under this factor, relevant considerations include “whether the
witness’s capacity to observe was impaired by stress or fright at
the time of the observation, by personal motivations, biases, or
prejudices, by uncorrected visual defects, or by fatigue, injury,
drugs, or alcohol.” Id.
¶26 The record indicates that the eyewitnesses experienced a
heightened degree of stress during the incident. See id. Witness
Two testified that once Robber One pulled out the gun, she was
“in shock.” Witness One testified that the event was shocking
and that he felt fear and panic. However, we think the
eyewitnesses’ fear in this case would be typical of any armed
robbery. See State v. Rivera, 954 P.2d 225, 228 (Utah Ct. App.
1998) (concluding, where the victim had been nervous and afraid
during an armed robbery, that the victim’s “ordinary fear” was
insufficient to defeat the third Ramirez factor; “[o]therwise, no
victim of a violent crime could ever meet this factor”). And we
agree with the State that “nothing in the circumstances
surrounding the robbery and nothing about the [eyewitnesses]
themselves suggests that they suffered such a heightened degree
20160557-CA 11 2018 UT App 134State v. Reyos
of stress that it interfered with their capacity to observe and
identify.” Although Robber One had a gun, he kept it down by
his side and never pointed it at the eyewitnesses. Moreover, the
eyewitnesses were able to observe the robbers as they
approached the eyewitnesses—before the guns came out and
before the eyewitnesses had reason to be overly fearful.
¶27 There is no evidence that the eyewitnesses harbored any
personal motivations, bias, or prejudice against Robber One. See
Ramirez, 817 P.2d at 783. Regarding the eyewitnesses’ vision,
Witness One testified that he had 20/20 vision, and Witness Two
testified that she was wearing her contacts on the night of the
incident and was therefore able to see corrected to 20/20.
Although there was no evidence of “fatigue, injury, [or] drugs,”
both eyewitnesses had been drinking that night. See id. Witness
One had consumed three beers, but he testified that he drank
beer “[f]airly regularly” and was “well enough aware of the
situation to know what was going on.” Witness Two testified
that she had consumed one cocktail before the incident. On these
facts, the eyewitnesses’ alcohol use was not enough to seriously
impair their capacity to observe Robber One.
D. Spontaneity, Consistency, and Suggestibility of the
Identifications
¶28 The fourth factor is “whether the witness’s identification
was made spontaneously and remained consistent thereafter or
whether it was a product of suggestion.” Id. This factor includes
consideration of
the length of time that passed between the
witness’s observation at the time of the event and
the identification of [the] defendant; the witness’s
mental capacity and state of mind at the time of the
identification; the witness’s exposure to opinions,
descriptions, identifications, or other information
20160557-CA 12 2018 UT App 134State v. Reyos
from other sources; instances when the witness or
other eyewitnesses to the event failed to identify
[the] defendant; instances when the witness or
other eyewitnesses gave a description of the actor
that is inconsistent with [the] defendant; and the
circumstances under which [the] defendant was
presented to the witness for identification.
Id.¶29 Here, Witness Two identified Defendant in a photo lineup
conducted at her workplace six days after the incident. Cf. State
v. Hollen, 2002 UT 35, ¶ 47, 44 P.3d 794 (noting that “the
witnesses had at least two months to recover from the stress of
the robbery before their identifications”); State v. Gallegos, 2016
UT App 172, ¶¶ 53–55, 380 P.3d 44 (affirming the trial court’s
decision to admit a photo identification conducted thirty days
after the crime, even though the photo array violated best
practices in several ways). Nothing in the record shows that
Witness Two was stressed or that she had diminished mental
capacity at the time she identified Defendant. The procedure was
“double-blind,” meaning that the detective who administered
the identification procedure did not know which of the pictured
men was the suspect. The detective showed Witness Two six
color photos: one of Defendant and five of other men who
shared Defendant’s physical characteristics—no hair (or with
very short hair) and facial tattoos. The photos were the same size
and showed each person’s head, face, and upper chest. Before
administering the photo lineup, the detective explained to
Witness Two that he would show her six photos, one at a time.
The detective asked Witness Two to tell him if she saw the
person who robbed her, but he explained that he “would
continue to show her the rest of the photos” even if she did
identify someone. The detective urged Witness Two to focus on
physical characteristics that did not change, such as “eyes, cheek
bones, nose, [and] ears.” He also explained to Witness Two that
20160557-CA 13 2018 UT App 134State v. Reyos
she was not obligated to pick anyone from the photo lineup and
that the investigation would continue if she did not pick anyone.
Witness Two picked Defendant’s photo. The detective asked her
if she was sure, and Witness Two stated that she was “not a
hundred percent sure, but it’s very high.”
¶30 Four days later, i.e., ten days after the crime, the same
detective repeated the same procedure with Witness One at the
police station. Similar to Witness Two, nothing in the record
demonstrates that Witness One had diminished mental capacity
at the time of the identification. The detective followed the same
format he used with Witness Two, but he showed Witness One
the photos in a different order. Witness One picked Defendant’s
photo. He testified at trial that he “was very confident” in his
selection. Overall, these facts demonstrate that the identifications
were not the product of a suggestive photo lineup.
¶31 Nevertheless, Defendant asserts that Witnesses One and
Two had “opportunities to see Defendant’s picture” on the news
before looking at the photo lineup and that the eyewitnesses’
identifications of Defendant were “the product of suggestion.”
Specifically, Defendant observes that in September 2012, his
photo was “displayed on various online, print, and television
news stories” regarding an unrelated matter. According to
Defendant, these opportunities to view his picture “likely
influenced” the eyewitnesses’ identifications during the photo
lineups. We are not persuaded.
¶32 The record indicates that in September 2012, a picture of
Defendant appeared in various print, online, and television news
stories on an unrelated matter. However, both eyewitnesses
testified that they had not seen any news reports whatsoever
containing Defendant’s picture before the photo lineups. Witness
Two testified that although she worked at a restaurant that had
televisions, the restaurant “[n]ever [showed] the news, just
sporting events.” She further testified that she does not watch
20160557-CA 14 2018 UT App 134State v. Reyos
the news or look at the news online, including social media. She
stated that she was “not interested” and that the news is “just
very negative.” When specifically asked if she remembered
seeing any news stories on September 11, 2012, about a man with
facial tattoos “being apprehended by the Salt Lake City Police
Department,” Witness Two replied, “No.” Witness One testified
that he had seen Defendant’s picture in the news, but only after
the photo lineup. On this record, Defendant’s assertion that the
eyewitnesses’ identifications were the product of suggestion is
entirely speculative and does not undermine the reliability of the
eyewitnesses’ photo identifications.
¶33 Defendant also asserts that “the eyewitnesses’ initial
description of the robbers . . . did not accurately identify [him]”
and that this discrepancy is best explained by “the impact of [the
eyewitnesses] seeing [his] picture on the news right after the
robbery.” Specifically, Defendant asserts that the eyewitnesses’
height estimates did not match his height of 5'7" and that
Witness One told the responding officer that Robber One had a
teardrop tattoo on his face, which tattoo Defendant does not
have. Again, we are not persuaded.
¶34 We agree with the State that, “[w]hile none of the
witnesses accurately guessed the robber’s exact height, their
estimates fit [Defendant].” Witness Two, who is 5'6", told officers
at the photo lineup that Robber One was around 5'8" or 5'9".
Witness One, who is 5'10", stated that Robber One was “a little
bit shorter” than he is and that he “could see over the top of
[Robber One’s] head.” These descriptions of Robber One’s height
relative to that of Witnesses One and Two are generally
consistent with Defendant’s height of 5'7". Defendant expressly
points to Witness Three’s statement, which was given to a
detective over the phone, that “one of the robbers [was] 5'10"
and the other suspect [was] 5'2".” But Witness Three was
approximately ten feet away from Robber One during the
crimes, and Witness Three testified at trial that he could not give
20160557-CA 15 2018 UT App 134State v. Reyos
an accurate description of Robber One. In any event, we
ultimately agree with the State that “the accuracy of Witness
Three’s estimate has no bearing on the accuracy of [Witnesses
One and Two’s] descriptions.”
¶35 Defendant also observes that Witness One told a
responding officer that Robber One had a teardrop tattoo on his
face. Defendant does not have a teardrop tattoo on his face, but
he does have a tattoo under the outside corner of his left eye that
the State characterizes as “an arrow pointing upwards.” We
agree with the State that, “in the lighting described by the
witnesses, the mark could readily be mistaken for a teardrop.”
Moreover, the “teardrop” tattoo was only part of the basis for
Witnesses One’s identification of Defendant. Indeed, despite the
discrepancy regarding the “teardrop” tattoo, Witness One’s
initial description of Robber One, while not overly detailed, was
otherwise generally consistent with Defendant’s appearance—
male, Hispanic, thin build, approximately 160 pounds, shaved
head, no facial hair, and “heavily tattooed” on his arms, legs,
neck, and face. Under the totality of the circumstances, the
relatively minor inconsistency in Witness One’s description of
Robber One does not render his entire identification unreliable.
E. The Nature of the Event
¶36 The fifth and final factor considers “the nature of the
event being observed and the likelihood that the witness would
perceive, remember and relate it correctly.” Ramirez, 817 P.2d at
781 (quotation simplified). Considerations under this factor
include “whether the event was an ordinary one in the mind of
the observer during the time it was observed, and whether the
race of the actor was the same as the observer’s.” Id. (quotation
simplified). Here, the eyewitnesses described the robber as
“Hispanic”; however, nothing in the record indicates the
eyewitnesses’ race, and Defendant does not address this
consideration on appeal. The record indicates that while the
20160557-CA 16 2018 UT App 134State v. Reyos
eyewitnesses did not initially recognize the situation as a
robbery, the eyewitnesses were nonetheless paying attention to,
and interacting with, the robbers as they approached the
eyewitnesses. Once Robber One brandished his gun and
demanded that Witnesses One and Two “[g]ive us all your shit,”
there can be little doubt that the eyewitnesses were aware that a
robbery was occurring. The lighting conditions in the alley
allowed the eyewitnesses to view Robber One’s unobstructed
face, relative height, multitude of tattoos, and gun. Overall, these
circumstances “tended to focus” the eyewitnesses’ attention on
what was occurring and suggest that the eyewitnesses were
likely to perceive, remember, and relate the robbery correctly to
law enforcement. See State v. Hollen, 2002 UT 35, ¶ 61, 44 P.3d 794(quotation simplified).
¶37 In evaluating the admissibility of eyewitness evidence,
“[c]ourts must simply decide whether the testimony was
sufficiently reliable so as not to offend a defendant’s right to due
process by permitting clearly unreliable identification testimony
before the jury.” State v. Craft, 2017 UT App 87, ¶ 22, 397 P.3d
889 (quotation simplified). Having considered the two
eyewitnesses’ identifications of Defendant under each of the five
Ramirez factors, we conclude that the eyewitnesses’
identifications were “sufficiently reliable to pass constitutional
muster under the Ramirez standard.” See id. Thus, “[i]n light of
Ramirez and its continuing authority on the issue of eyewitness
identification, it would not have been unreasonable for counsel
to determine that attempting to discredit the testimony at trial
was a better strategy than pursuing a likely futile motion to
exclude the testimony.” See id. The record demonstrates that trial
counsel focused on discrediting the eyewitnesses’ testimony at
trial through cross-examination and in closing argument, and by
presenting evidence that various media outlets had been
circulating Defendant’s picture around the time the photo
lineups occurred. The jury also received a Long instruction,
which trial counsel emphasized in closing argument. See State v.
20160557-CA 17 2018 UT App 134State v. Reyos
Long, 721 P.2d 483, 487–95 (Utah 1986). Accordingly, we are not
persuaded that Defendant’s trial counsel performed deficiently
in forgoing a motion to exclude the eyewitness identifications.3
II. Sufficiency of the Evidence
¶38 Next, Defendant contends that there was insufficient
evidence to support his convictions for aggravated robbery and
that the evidence was likewise insufficient to support the
application of the Group Crime Enhancement. Defendant
concedes that “[t]he insufficiency issues were not preserved”
and seeks review under the plain-error and ineffective-assistance
exceptions to the preservation requirement.
¶39 To establish plain error regarding the sufficiency of the
evidence, “an appellant must show first that the evidence was
insufficient to support a conviction of the crimes charged and
second that the insufficiency was so obvious and fundamental
that the trial court erred in submitting the case to the jury.” State
v. Diaz, 2002 UT App 288, ¶ 32, 55 P.3d 1131 (quotation
simplified); see also State v. Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346(“While it is difficult for the court on appeal to dictate when an
evidentiary defect was apparent to the trial court, there is a
certain point at which an evidentiary insufficiency is so obvious
and fundamental that it would be plain error for the trial court
not to discharge the defendant. An example is the case in which
the State presents no evidence to support an essential element of
a criminal charge.”).
3. Although Defendant also purports to challenge the
eyewitnesses’ in-court identifications of him, he does not analyze
that claim separately from the eyewitnesses’ out-of-court
identifications, and therefore neither do we.
20160557-CA 18 2018 UT App 134State v. Reyos
¶40 Considering the evidence in the light most favorable to
the jury’s verdict, “we first examine the record to determine
whether . . . the evidence is sufficiently inconclusive or
inherently improbable such that reasonable minds must have
entertained a reasonable doubt that the defendant committed the
crimes for which he or she was convicted.” Diaz, 2002 UT App
288, ¶ 33 (quotation simplified). “Only then will we undertake
an examination of the record to determine whether the
evidentiary defect was so obvious and fundamental that it was
plain error to submit the case to the jury.” Id. (quotation
simplified).
¶41 A person commits aggravated robbery if, in the course of
committing robbery, he “uses or threatens to use a dangerous
weapon.” Utah Code Ann. § 76-6-302(1)(a) (LexisNexis 2012); see
also id. § 76-6-301 (defining robbery). Defendant does not
challenge that the robberies occurred or that a dangerous
weapon was involved; rather, he asserts only that the evidence
was insufficient to show that he “was present at the scene of the
robbery.” Specifically, he asserts that the eyewitness testimony
was “unreliable” and that “additional independent evidence”
placing him at the crime scene was therefore necessary to
support the jury’s verdict.
¶42 However, our determination that the eyewitnesses’
testimony was sufficiently reliable under Ramirez to be
admissible essentially resolves this issue. See State v. Craft, 2017
UT App 87, ¶ 15 n.1, 397 P.3d 889. That is, the eyewitnesses’
testimony, placing Defendant at the scene of robberies, as
apparently believed by the jury, provided sufficient evidence of
Defendant’s guilt. See id. Because there was sufficient evidence to
support Defendant’s aggravated robbery convictions, we
conclude that the trial court did not commit plain error in
20160557-CA 19 2018 UT App 134State v. Reyos
submitting the matter to the jury for determination. 4 See Diaz,
2002 UT App 288, ¶ 33.
¶43 Defendant also raises this argument under the ineffective
assistance of counsel exception to the preservation rule. As
discussed above, to prevail on his ineffective assistance of
counsel claim, Defendant must show both that trial counsel’s
performance was deficient and that this deficient performance
prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). However, “the failure of counsel to make motions or
objections which would be futile if raised does not constitute
ineffective assistance.” State v. Whittle, 1999 UT 96, ¶ 34, 989 P.2d
4. In support of his argument that “additional independent
evidence” was necessary to support the jury’s verdict, Defendant
observes that (1) he “was never found to be in possession of the
stolen items,” (2) there was no video footage depicting him at the
crime scene, (3) there “were no unique clothing articles” tying
him to the crime, (4) there was no DNA evidence, and (5) there
was no palm print or fingerprint evidence tying him to the
crime.
We agree with the State that the absence of these other
types of evidence does not somehow render the evidence that
was presented at trial—the eyewitnesses’ testimony—
“sufficiently inconclusive or inherently improbable such that
reasonable minds must have entertained a reasonable doubt”
that Defendant committed the crimes for which he was
convicted. See State v. Diaz, 2002 UT App 288, ¶ 33, 55 P.3d 1131(quotation simplified); see also State v. Ashcraft, 2015 UT 5, ¶ 28,
349 P.3d 664 (“A reviewing court is not to measure the
sufficiency of the evidence against a hypothetical—CSI-based—
investigative ideal. Instead of imagining the evidence that might
have been presented, we consider the evidence that was
presented, and evaluate its sufficiency through a lens that gives
the jury’s verdict the benefit of all reasonable inferences.”).
20160557-CA 20 2018 UT App 134State v. Reyos
52 (quotation simplified). Because there was sufficient evidence
to support the jury’s verdicts, a motion for directed verdict based
on the sufficiency of the evidence would have been futile, and
we therefore conclude that trial counsel did not render deficient
performance by failing to make such a motion. See State v.
Johnson, 2015 UT App 312, ¶ 16, 365 P.3d 730; see also id. ¶ 15
(observing that where the trial court did not plainly err in
submitting a charge to the jury, “it follows that counsel’s
acquiescence in the charge being submitted was not objectively
deficient performance”).
¶44 Defendant next asserts that, “even if it is assumed that
[he] participated in the robbery,” there was insufficient evidence
demonstrating that he acted in concert with two or more persons
under the Group Crime Enhancement statute. More specifically,
he asserts that “there were only two men involved in the robbery
and there was no reasonable evidence to support a finding that
the females located in the Honda were involved in the
commission of the aggravated robbery crimes.” Defendant again
seeks review under the plain-error and ineffective-assistance
exceptions to our preservation requirement.
¶45 The Group Crime Enhancement statute provides that a
person convicted of aggravated robbery “is subject to an
enhanced penalty for the offense . . . if the trier of fact finds
beyond a reasonable doubt that the person acted . . . in concert
with two or more persons.” Utah Code Ann. § 76-3-203.1(2)(a)
(LexisNexis 2012); see also id. § 76-3-203.1(5)(i) (applying the
enhancement to robbery and aggravated robbery). “‘In concert
with two or more persons’ means: (i) the defendant was aided or
encouraged by at least two other persons in committing the
offense and was aware of this aid or encouragement” and
(ii) “each of the other persons: (A) was physically present; or
(B) participated as a party to any offense listed in
Subsection (5).” Id. § 76-3-203.1(1)(b).
20160557-CA 21 2018 UT App 134State v. Reyos
¶46 This court has previously observed that “[t]o ‘aid’ is ‘to
provide with what is useful or necessary in achieving an end,’”
and “to ‘encourage’ means ‘to instigate, to incite to action, to
embolden, or to help.’” State v. Cristobal, 2010 UT App 228, ¶ 11,
238 P.3d 1096 (quotation simplified). Based on these definitions,
it is evident that “something more than passive presence during
the commission of a crime is required to constitute aiding or
encouragement.” Id. ¶ 12 (quotation simplified). Thus, “under
the Group Crime Enhancement statute, it is not enough that
others were present when the crime was committed; rather, the
quality of their involvement must rise to the level of
participation described in the statute: aiding or encouraging.” Id.
¶ 13 (quotation simplified); see also State v. Labrum, 959 P.2d
120, 123 (Utah Ct. App. 1998) (“Mere presence, or even prior
knowledge, does not make one an accomplice when he neither
advises, instigates, encourages, or assists in perpetration of the
crime.” (quotation simplified)). But while another person’s mere
presence at the scene of the crime provides no basis for
application of the Group Crime Enhancement, “conduct before
and after the offense is a circumstance from which one’s
participation in the criminal act may be inferred.” Cristobal, 2010
UT App 228, ¶ 13 (quotation simplified).
¶47 Likewise, similar to “mere presence” at the scene of the
crime, another person’s “flight from the scene of the crime,” by
itself, does not prove that one aided or encouraged the criminal
activity “but is a circumstance from which [one’s] involvement
may be inferred.” See id. ¶ 15; see also id. ¶ 14 (“Flight by itself is
not sufficient to establish guilt but is merely a circumstance to be
considered with other factors as tending to show a consciousness
of guilt and therefore guilt itself.” (quotation simplified)).
¶48 The State correctly observes that, because there were two
robbers, it “only had to prove a third person’s participation” in
the robberies to support the application of the Group Crime
Enhancement. The State asserts that the unidentified female
20160557-CA 22 2018 UT App 134State v. Reyos
driver’s presence at, and flight from, the crime scene support a
reasonable inference that she aided or encouraged Defendant.
We agree.
¶49 For the issue of the Group Crime Enhancement to be
submitted to the jury, “there had to be sufficient evidence,
including the logical and reasonable inferences that could be
drawn therefrom,” see State v. Holgate, 2000 UT 74, ¶ 22, 10 P.3d
346, that the unidentified female driver aided or encouraged
Defendant and that Defendant was aware of her aid or
encouragement, see Utah Code Ann. § 76-3-203.1(1)(b). The
following evidence was before the trial court:
(1) The unidentified female drove the robbers to
the crime scene—the alley.
(2) The alley had only one access point for vehicles;
thus, vehicles accessing the alley had to enter and
exit via the same route.
(3) When the unidentified female drove into the
alley, she conducted a U-turn and positioned the
car so that it was facing the alley’s lone exit.
(4) The unidentified female stayed in the car when
the robbers got out, and she did not otherwise
attempt to leave the alley during the robbery, or
attempt to engage with or stop the two robbers.
(5) After the robberies, the two robbers
immediately returned to the car.
(6) The unidentified female waited for the robbers
to return to the car, and she then “sped” out of the
alley.
20160557-CA 23 2018 UT App 134State v. Reyos
¶50 From this evidence, a jury could reasonably infer that the
unidentified female was not merely present at the crime scene,
but that she instead aided or encouraged the robbers by acting as
a getaway driver. Cf. State v. Jimenez, 2012 UT 41, ¶ 14, 284 P.3d
640 (“By driving the getaway car, [the defendant] became an
accomplice to the aggravated robbery.”); In re M.B., 2008 UT
App 433, ¶ 17, 198 P.3d 1007 (acknowledging that “drivers of
getaway cars are typically found guilty under accomplice
liability theories because, as a driver, they inherently show
active involvement in the crime”). Upon entering the alley, the
unidentified female made a U-turn and positioned the car so that
it was facing the alley’s only exit, reasonably suggesting that she
anticipated the need to leave the alley quickly and, by extension,
that she knew of the robberies in advance. The car’s proximity to
the robberies and the presence of ambient lighting in the alley
support an inference that the unidentified female was aware of
the ongoing criminal activity. She made no attempt to leave the
car or the alley during the robberies, reasonably suggesting that
she was waiting for the robbers to return. And indeed, she did
wait for the robbers to return, at which point she “sped” out of
the alley, helping the robbers to flee from the crime scene.
Another reasonable inference from these facts is that the
unidentified female was acting as a lookout and watching the
alley’s entrance for any unwanted newcomers.
¶51 Regarding Defendant’s awareness of the unidentified
female driver’s part in the robberies, the record demonstrates
that the unidentified female driver transported the robbers to the
crime scene, and the robbers stayed in the car until she had
positioned the car toward the alley’s exit. After committing the
robberies, the robbers immediately returned to the car to flee,
reasonably suggesting that they expected the unidentified
female driver to stay in the alley and wait for them to complete
their crimes. From these facts, a jury could reasonably infer that
Defendant was aware of the unidentified female driver’s aid or
encouragement.
20160557-CA 24 2018 UT App 134State v. Reyos
¶52 Reviewing the evidence and the reasonable inferences to
be drawn therefrom, we conclude that a jury reasonably could
have found that Defendant acted in concert with two or more
persons and that the Group Crime Enhancement therefore
applied. The unidentified female driver’s presence at, and flight
from, the crime scene, when considered together, support a
reasonable inference that she was an active participant in the
robberies and that she aided or encouraged Defendant in
committing the robberies. Consequently, the trial court did not
commit plain error in submitting the matter of the Group Crime
Enhancement to the jury for determination.
¶53 Defendant also asserts that his trial counsel was
ineffective for not moving for a directed verdict on the
application of the Group Crime Enhancement, arguing that there
was insufficient evidence that he acted in concert with two or
more persons. As explained above, the evidence and reasonable
inferences to be drawn therefrom were sufficient to support the
application of the Group Crime Enhancement. Thus, a motion
for directed verdict would have been futile, and “the failure of
counsel to make motions or objections which would be futile if
raised does not constitute ineffective assistance.” See State v.
Whittle, 1999 UT 96, ¶ 34, 989 P.2d 52 (quotation simplified). We
therefore conclude that trial counsel did not render ineffective
assistance by failing to move for a directed verdict on the
application of the Group Crime Enhancement. See State v.
Johnson, 2015 UT App 312, ¶ 16, 365 P.3d 730.
CONCLUSION
¶54 Because the eyewitnesses’ identifications were sufficiently
reliable under Ramirez, we conclude that trial counsel did not
perform deficiently in declining to pursue a motion to exclude
them. In addition, because there was sufficient evidence to
support Defendant’s aggravated robbery convictions and the
20160557-CA 25 2018 UT App 134State v. Reyos
application of the Group Crime Enhancement, the trial court did
not plainly err by failing to sua sponte enter a directed verdict,
and trial counsel was not ineffective for failing to make a futile
motion for directed verdict.
¶55 Affirmed.
20160557-CA 26 2018 UT App 134