State v. Corona

2018 UT App 154THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ANTHONY CORONA,
Appellant.
Opinion
No. 20140321-CA
Filed August 16, 2018
Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 111909780
Debra M. Nelson, Attorney for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.
MORTENSEN, Judge:
¶1 Early one morning, Anthony Corona fired five rounds
from a .22 caliber handgun during a staged drug deal in a church
parking lot. Four rounds struck Victim in his chest and arm, one
of which killed him. Corona and his accomplices, who planned
to rob Victim all along, fled, leaving Corona’s cell phone at the
murder scene. A jury convicted Corona of aggravated murder,
aggravated robbery, possession of a firearm by a restricted
person, and five counts of felony discharge of a firearm, all
despite testimony from Witness that she pulled the trigger, not
Corona. Corona challenges his convictions on four grounds: (1)
that the trial court erroneously allowed the prosecution to
present evidence of a prior shooting; (2) that trial counsel was
ineffective for not moving to suppress evidence discovered from
State v. Corona
Corona’s cell phone; (3) that Utah’s aggravated murder statute is
unconstitutionally disproportionate as applied; and (4) that his
trial counsel was ineffective for failing to argue that Corona’s
convictions for discharge of a firearm should merge with his
aggravated murder conviction. We affirm.
BACKGROUND
¶2 A group consisting of Corona’s codefendants decided to
rob Victim, a drug dealer. The group arranged to meet Victim
early one morning in a church parking lot under the guise of a
drug deal. Concerned that Victim would be armed and having
no firearm of their own, the group enlisted Corona, who had a
gun. Corona agreed to assist in the robbery and accompanied the
group, all in a single car, to the church parking lot. Corona and
another codefendant remained in the car while the other
codefendants hid behind a nearby shed. There they waited for
Victim to arrive.
¶3 Witness drove Victim to the church parking lot. Victim
exited his SUV and moved into the backseat of the car, where
Corona and another codefendant waited. The group converged
on Victim and a struggle ensued. Corona exited the car, drew his
gun, and pointed it at Victim. As the struggle continued, Corona
fired several shots at Victim. One shot proved fatal.
¶4 Corona fled on foot. As he fled, Witness told the other
codefendants to get in the SUV. Witness drove out of the parking
lot with the codefendants, picking up Corona on the way.
¶5 The police soon arrived and secured the scene. The police
found Victim slumped over in the back seat of the still-running
car, which the police traced to one of the codefendants. They also
found Corona’s cell phone on the front passenger seat of the car
and Victim’s cell phone on the floor in the backseat. The police
requested a warrant, stating in the supporting affidavit, “By
looking in this phone your affiant and assisting investigators
hope to identify the victim, suspect or suspects.” A warrant was
20140321-CA 2 2018 UT App 154State v. Corona
issued that authorized police to “make a search of the above-
named or described premises for the . . . described property or
evidence and if [the police found] the same or any part thereof,
to . . . retain such property in [police] custody, subject to the
order of this court.” The police seized and searched the cell
phones, which revealed the identities of the phones’ owners as
well as calls between the two phones in the minutes leading up
to the murder.
¶6 The police also recovered fingerprints belonging to some
of the codefendants, but none belonging to Corona. Five bullet
casings and four bullets were also recovered. A ballistics analysis
revealed that the five casings were fired from the same firearm
and that the bullets were fired from the same firearm. But
because the gun was not recovered, ballistics analysis could not
determine whether the shell casings and bullets were fired from
the same gun.
¶7 Based on the evidence collected at the scene, the police
arrested Corona and the codefendants. All of the codefendants
denied involvement at first, but they later admitted involvement
and identified Corona as the shooter. The codefendants agreed
to testify against Corona in exchange for guilty pleas to reduced
charges. The codefendants’ identification of the shooter was
corroborated by Corona’s girlfriend (Girlfriend). Girlfriend
initially provided an alibi for Corona, saying that she and
Corona were both home at the time of the murder. But, in a
follow-up interview seven months later, she told police that
Corona had left on the morning of the murder with one of the
codefendants and told Girlfriend that he was going to help rob
someone and he was taking his gun. Girlfriend further told
police that when Corona returned he admitted to shooting
Victim and that Corona was upset about having left his cell
phone at the murder scene. While she attempted later to distance
herself from these statements and go back to her original story
that Corona had stayed home, Corona’s and Girlfriend’s cell
phone records showed multiple calls and texts to each other near
the time of the murder.
20140321-CA 3 2018 UT App 154State v. Corona
¶8 Girlfriend’s second interview also provided investigators
with a lead that eventually connected Corona to the murder.
Girlfriend made statements to police, which she later recanted,
that Corona fired a gun during a different altercation in an
AutoZone parking lot. Ballistics analysis showed that the bullet
casings recovered at this prior shooting were fired from the same
gun as the one used against Victim. Shortly before trial in April
2013, the State filed notice of its intent to introduce rule 404(b)
evidence of the AutoZone shooting. The notice included a police
report of that shooting. On Corona’s motion, the court continued
the trial so that the admissibility of this evidence could be fully
briefed and analyzed under rule 404(b) of the Utah Rules of
Evidence. The court eventually excluded the evidence of the
prior shooting, reasoning that the evidence relied “almost
entirely” on Girlfriend’s inconsistent statements. But the court
allowed reconsideration of its decision should “the State develop
additional evidence regarding the identity of the shooter . . . or
the door is opened by [Corona].”
¶9 Four days before trial in January 2014, the State moved for
reconsideration, claiming that it had developed additional
evidence related to some car molding found at the scene of the
AutoZone shooting matching a piece of molding missing from
Corona’s grandfather’s car. The court gave the parties the option
to continue the trial and address the rule 404(b) and suppression
issues or to have the motions struck as untimely and proceed to
trial. Corona agreed to proceed to trial and the court left its prior
decision in place, subject to the defense opening the door.
¶10 During the defense’s case at trial, Corona called Witness
to testify. Witness had made statements to police after the
murder that she was waiting in her car when Victim was shot.
But at trial, Witness testified that she, not Corona, shot and killed
Victim. 1 On cross-examination and over defense counsel’s
1. At the time Witness testified, she was serving a prison
sentence for obstructing justice, a first degree felony, and two
(continued…)
20140321-CA 4 2018 UT App 154State v. Corona
objection, the State questioned Witness about where she had
obtained the gun. Witness explained that she received the gun
from a friend, not Corona, but refused to identify the friend.
¶11 After Witness testified, the State argued that Witness had
opened the door for admission of the evidence of the AutoZone
shooting to be used to rebut her testimony. The court allowed
the State to present the evidence of the AutoZone shooting,
including evidence of the vehicle molding. Corona objected to
the admissibility of the evidence and, although he had declined
the earlier offer of a continuance before trial, now moved for a
continuance, which the court denied.
¶12 The jury convicted Corona on all counts. Corona appeals.
ISSUES AND STANDARDS OF REVIEW
¶13 Corona brings four challenges on appeal. First, he
contends that the trial court erred in admitting evidence of the
prior shooting. A trial court’s admission of other-acts evidence is
reviewed for abuse of discretion. State v. Thornton, 2017 UT 9,
¶ 56, 391 P.3d 1016.
¶14 Second, Corona contends that his counsel “was ineffective
in not pursuing suppression of unconstitutionally seized
cellphone evidence.” “When a claim of ineffective assistance of
counsel is raised for the first time on appeal, there is no lower
court ruling to review and we must decide whether the
defendant was deprived of the effective assistance of counsel as
(…continued)
prison sentences of one to five years. During her initial interview
with police, Witness resisted giving any names and explained
that she felt bad for everyone involved. Witness stated that she
knew them all and that they were “like kids to her.”
20140321-CA 5 2018 UT App 154State v. Corona
a matter of law.” State v. Reid, 2018 UT App 146, ¶ 17 (cleaned
up).
¶15 Third, Corona contends that Utah’s aggravated murder
statute was disproportionately applied. “The constitutionality of
a statute is a question of law reviewed for correctness.” State v.
Reece, 2015 UT 45, ¶ 18, 349 P.3d 712.
¶16 Fourth, Corona contends that his convictions for
discharge of a firearm merge with his conviction for aggravated
murder and that his defense counsel was ineffective for not
asserting such. Again, we decide a claim of ineffective assistance
of counsel raised for the first time on appeal as a matter of law.
Reid, 2018 UT App 146, ¶ 17.
ANALYSIS
I. Evidence of the Prior Shooting
¶17 Corona contends that the trial court erroneously admitted
evidence of the AutoZone shooting in which he had been
implicated. Corona argues four reasons why the evidence was
improperly admitted: (1) the evidence “could not properly be
used to impeach [Witness]” under rule 608 of the Utah Rules of
Evidence; (2) the evidence “was not proper rebuttal evidence”;
(3) the evidence violated rule 404(b) of the Utah Rules of
Evidence in that it “was irrelevant, improper character evidence,
and more prejudicial than probative”; and (4) “the State’s motion
to admit the 404(b) evidence was not timely and the denial of a
continuance to prepare to meet this evidence [was] prejudicial.”
We examine these arguments in turn.
A. Evidence of the AutoZone Shooting Was Properly Used to
Impeach Witness
¶18 Corona argues that it was improper to use evidence of the
AutoZone shooting to impeach Witness’s statements that she
was the shooter. Citing rule 608 of the Utah Rules of Evidence,
20140321-CA 6 2018 UT App 154State v. Corona
he asserts that “the admission of the [prior shooting] was
improper because specific bad acts evidence alleged against the
defendant cannot be used to attack another witness’s credibility
for truthfulness.” We disagree and conclude that rule 608 does
not apply in this instance.
¶19 Rule 608 of the Utah Rules of Evidence governs what
evidence may be introduced to attack or support a witness’s
character for truthfulness or untruthfulness. The AutoZone
shooting evidence is not an instance of conduct that attacks or
supports Witness’s character for truthfulness or untruthfulness;
rather, it is substantive evidence that rebuts Witness’s testimony
that she shot Victim. “[O]nce the defendant offers evidence or
makes an assertion as to any fact, the State may cross-examine or
introduce on rebuttal any testimony or evidence which would
tend to contradict, explain or cast doubt upon the credibility of
[that evidence].” See State v. Thompson, 2014 UT App 14, ¶ 30, 318
P.3d 1221 (cleaned up). Accordingly, once defense counsel
presented testimony that Witness, not Corona, had the gun, the
State could properly use extrinsic evidence to prove that this
assertion was arguably, and in the State’s view demonstrably,
false. The evidence did not address Witness’s character for
truthfulness or any other character trait. Instead, the evidence
presented here provided a basis for the fact finder to conclude
that Corona possessed and used the same gun weeks before
Victim’s murder, contradicting Witness’s testimony.
¶20 In Thompson, a sixteen-year-old girl alleged that
Thompson had forcibly engaged in sexual acts with her on a
specific date between 9:00 and 9:30 a.m. Id. ¶¶ 2–3. Both
Thompson and a friend testified that on that date, Thompson
was driving a long-haul truck and that they were together on the
road by 6:30 a.m. Id. ¶¶ 4–5. Additionally, Thompson put
driving logs into evidence to support the testimony. Id. ¶¶ 8–9.
The State then offered extrinsic evidence, in the form of
testimony of a transportation specialist, to challenge the
accuracy of the driving logs. Id. ¶ 11. The transportation
specialist presented a computer generated report purporting to
prove that the log entries, specifically the distance travelled in
20140321-CA 7 2018 UT App 154State v. Corona
the time reported, was “not physically possible.” Id. On appeal,
Thompson claimed ineffective assistance of counsel, arguing that
counsel should have objected to the transportation specialist
evidence under rules 404, 405, and 608. Id. ¶ 22. This court
rejected the claim, holding, among other things, that rule 608 did
not apply. Id. ¶¶ 29–31. This court stated,
[r]ule 608 of the Utah Rules of Evidence expressly
incorporates [the limitation on character evidence],
stating that extrinsic evidence of specific conduct is
not admissible to attack or support a witness’s
character for truthfulness. See Utah R. Evid. 608(b).
But this limitation does not apply to evidence used
to directly rebut a witness’s testimony or other
evidence.
Thompson, 2014 UT App 14, ¶ 29.
¶21 We reach a similar conclusion here. Because the evidence
of the AutoZone shooting directly rebuts Witness’s testimony
and does not go to Witness’s general character for truthfulness, it
is not the type of evidence contemplated under rule 608. See State
v. Green, 578 P.2d 512, 514 (Utah 1978) (explaining that witness
testimony is subject to “cross-examination on any matter which
would tend to contradict, explain or cast doubt upon the
credibility of [that] testimony,” and that “testimony or evidence
which is purposed to those same objectives may be introduced in
rebuttal”); State v. Reed, 820 P.2d 479, 482 (Utah Ct. App. 1991)
(same). We therefore reject Corona’s argument.
B. Evidence of the AutoZone Shooting Was Proper Rebuttal
Evidence
¶22 Corona argues that “when impeaching a witness with
404(b) evidence, it is axiomatic that the prior bad acts alleged are
against the testifying witness, not another person.” We do not
share this view. As explained above, such an axiom may be true
when uncharged conduct is used to support or attack that
20140321-CA 8 2018 UT App 154State v. Corona
witness’s character for truthfulness, but not when the prior bad act
is used to contradict the witness’s testimony. Corona points to no
authority adopting the argument he asserts. 2
¶23 Instead, “once the defendant offers evidence or makes an
assertion as to any fact, the State may cross-examine or introduce
on rebuttal any testimony or evidence which would tend to
contradict, explain or cast doubt upon the credibility of his
testimony.” State v. Thompson, 2014 UT App 14, ¶ 30, 318 P.3d
1221 (cleaned up). Corona presented evidence, through Witness,
that Witness obtained the gun from a friend and used it to shoot
Victim. The evidence of the AutoZone shooting contradicts and
casts doubt upon the credibility of that testimony. We therefore
conclude that the evidence of the AutoZone shooting was proper
rebuttal evidence.
¶24 Corona also argues that the evidence was improperly
admitted because the State, not Corona, opened the door for
admission of the evidence on the cross-examination of Witness.
Corona relies on State v. Saunders, 1999 UT 59, 992 P.2d 951, to
support his argument. In Saunders, the Utah Supreme Court held
that defense counsel did not open the door to certain evidence
where the State had “already introduced a great deal” of related
evidence and that defense counsel was “entitled, indeed
required as a practical matter, to rebut or explain that evidence
by [the defendant’s] testimony.” Id. ¶ 22. The facts here are
inapposite. The first time any evidence was introduced that
Witness had the gun and shot Victim was during Witness’s
testimony. The testimony was not used to explain evidence that
was previously introduced; rather, it was entirely new. And the
2. The cases that Corona does cite do not stand for the
proposition he asserts. Instead, they deal specifically with an
impeachment exception that allows prosecutors to use illegally
obtained evidence to impeach the credibility of defense
witnesses. See James v. Illinois, 493 U.S. 307, 313–15 (1990); Agnello
v. United States, 269 U.S. 20, 34–35 (1925).
20140321-CA 9 2018 UT App 154State v. Corona
State was entitled to respond to the evidence adduced by the
defense. Thus, we reject Corona’s argument that the State, not
Corona, opened the door for rebuttal evidence.
C. Evidence of the Prior Shooting Was Introduced for a
Proper Noncharacter Purpose
¶25 Corona further argues against the admittance of the
evidence of the prior shooting, claiming that “[t]he only purpose
the evidence served was an improper and irrelevant one—to
suggest that Corona was a dangerous person and was likely the
shooter because he had been involved in another shooting.” We
disagree.
¶26 Rule 404(b) of the Utah Rules of Evidence allows evidence
of prior bad acts to be admitted so long as it is offered for a
noncharacter purpose “such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Utah R. Evid. 404(b)(2). Our
supreme court has articulated a three-part test for the admittance
of rule 404(b) evidence: “the prior bad-act evidence (1) must be
offered for a genuine, noncharacter purpose, (2) must be relevant
to that noncharacter purpose, and (3) the probative value of the
evidence must not be substantially outweighed by the danger of
unfair prejudice.” State v. Reece, 2015 UT 45, ¶ 57, 349 P.3d 712(cleaned up). Our supreme court added that “matters of
conditional relevance must also meet the preponderance of the
evidence standard under rule 104(b).” Id. (cleaned up).
¶27 The trial court’s analysis of the evidence sufficiently met
these standards. First, the trial court concluded that evidence
was admitted for a noncharacter purpose—identity. Second, the
court concluded that the evidence was relevant to the identity of
the shooter in this case. Third, the trial court concluded that the
evidence should not be excluded under rule 403, which provides
that a court “may exclude relevant evidence if its probative
20140321-CA 10 2018 UT App 154State v. Corona
value is substantially outweighed by a danger of . . . unfair
prejudice.” 3 Utah R. Evid. 403.
¶28 Indeed, the evidence goes to the identity of the shooter by
showing who had possession of the murder weapon. The
evidence contradicted Witness’s testimony that she, not Corona,
possessed the gun in the weeks prior to the altercation with
Victim. 4 And, while conducting its rule 403 analysis, the trial
court concluded that, in addition to the inconsistent testimony of
3. In analyzing the evidence under rule 403, the trial court relied
on factors outlined in State v. Shickles, 760 P.2d 291 (Utah 1988),
including whether the evidence would arouse the jury to
“overmastering hostility.” Since this case was tried, our supreme
court has explained that “courts are bound by the text of rule
403,” State v. Cuttler, 2015 UT 95, ¶ 18, 367 P.3d 981 (cleaned up),
and that “[i]t is always error . . . for a court to center its analysis
on the Shickles factors, to consider itself obligated to use a
particular factor or factors, or to rely inflexibly upon each . . .
factor,” State v. Ring, 2018 UT 19, ¶ 23. The court has also
explained that “it is inappropriate for a court to consider the
overmastering hostility factor [articulated in Shickles] in a rule
403 analysis.” Cuttler, 2015 UT 95, ¶ 20. However, because
Corona has not argued for reversal on these bases, we have no
occasion to review the trial court’s analysis under those potential
arguments.
4. We note that the trial court did not make a separate and
independent conclusion that Corona’s involvement was relevant
under rule 104(b) of the Utah Rules of Evidence. However,
Corona never raised that issue below. Instead, Corona framed
the issue “under the purview of 404(b) and 403 and the Shickles
factors.” Because any 104(b) issues were not raised to the trial
court, we reject Corona’s rule 104(b) arguments on appeal as
unpreserved.
20140321-CA 11 2018 UT App 154State v. Corona
Girlfriend that led to the investigation which matched the bullet
casings from both shootings, the car molding evidence “added to
the strength of the evidence.” The trial court was also careful to
limit the evidence of the prior shooting to facts relevant to the
shooter’s identity, expressly excluding “the injuries of the
alleged victim.” Under these facts, we cannot agree with
Corona’s challenge. See State v. Clark, 2014 UT App 56, ¶¶ 21, 26,
322 P.3d 761 (affirming the trial court’s decision to allow
evidence of a prior shooting to show identity where the same
gun was used in both shootings).
D. Disclosure of Rule 404(b) Evidence Was Not an Abuse of
Discretion
¶29 Next, Corona asserts that the trial court abused its
discretion when it denied his motion for a continuance mid-trial
after the State sought to introduce the car molding evidence. The
trial court found that the notice of the molding evidence was
sufficient under rule 404(b) and the timing of the disclosure was
justified by the State’s late discovery and receipt of the report.
The trial court ruled the notice reasonable because “it [was] not
so prejudicial to the defendant that they couldn’t have done
what they needed to do before the trial” and “the State provided
that information . . . as soon as the investigator was able to
obtain [it].” Given the long-in-advance notice the State had
provided as to the specific bad act at issue and the general
nature of the evidence anticipated in the particular
circumstances of this case, we cannot conclude that the trial
court abused its discretion.
¶30 Rule 404(b) requires “reasonable notice of the general
nature” of the bad-acts evidence the State intends to introduce,
and the rule expressly provides that such notice may even be
appropriate “during trial if the court excuses lack of pretrial
notice on good cause shown.” Utah R. Evid. 404(b)(2).
¶31 We see no abuse of discretion for three reasons. First, the
State provided notice of the general nature of the evidence,
including Girlfriend’s testimony and the ballistics testing, well in
20140321-CA 12 2018 UT App 154State v. Corona
advance of the trial. This made Corona generally aware of the
evidence and allowed him to prepare to challenge it. We further
see no flaw as to the requirement to disclose the nature of the
evidence the State intended to offer. Certainly, the notice
provided in April 2013, which included a police report, gave
notice of the specific bad act at issue and identified most of the
evidence connected with the circumstances. Accordingly,
Corona was on notice that the issue was likely to come up at
trial.
¶32 Second, while the State did not identify the evidence
matching the car molding until six days before trial, the State
moved quickly to acquire the evidence once it became apparent
how Witness would testify. After acquiring the evidence, the
State produced it to Corona within one day. Moreover, the trial
court’s earlier ruling that excluded the bad-acts evidence was
always conditioned on whether “the door is opened at trial for
either impeachment or rebuttal purposes.” The trial court later
determined that the door had indeed been opened. The trial
court’s ruling to allow short notice of the molding evidence days
before trial is warranted under the particular circumstances of
this case because (1) the State gave notice within one day of
receiving the report of the molding match and (2) Corona had
previously been put on notice that the door could be opened for
such evidence.
¶33 In this regard, it is of little import that the trial court first
excluded the evidence and then reversed its pretrial
determination. The trial court had already noted that its pretrial
ruling was subject to what occurred at trial. When the court
made its ruling, it was viewing the question of admissibility in
light of what had actually taken place at trial, as opposed to any
pretrial determination. In other words, the trial court viewed the
evidentiary question in light of Witness testifying that she had
possessed the murder weapon during the relevant time period.
¶34 Third, the court found that the disclosure several days
before trial was not so late that Corona could not address it.
While Corona has challenged this finding, he has not
20140321-CA 13 2018 UT App 154State v. Corona
demonstrated any concrete reason why he did not have time to
prepare or adequately respond.
¶35 Under these circumstances, the trial court’s determination
was not so unreasonable as to constitute an abuse of discretion.
Therefore, Corona’s challenge fails.
II. Cell Phone Evidence
¶36 Corona contends that his counsel “was ineffective in not
pursuing suppression of unconstitutionally seized cellphone
evidence.” We reject this claim because law enforcement sought
and obtained a warrant before searching the phone’s contents,
and Corona does not challenge the validity of the warrant on
appeal.
¶37 To prevail on a claim of ineffective assistance of counsel, a
party must show that “counsel’s representation fell below an
objective standard of reasonableness,” and that “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). “Where
defense counsel’s failure to litigate a Fourth Amendment claim
competently is the principal allegation of ineffectiveness, the
defendant must also prove that his Fourth Amendment claim is
meritorious . . . .” Kimmelman v. Morrison, 477 U.S. 365, 375
(1986).
¶38 Corona has failed on appeal to prove that his Fourth
Amendment claim is meritorious because he has
mischaracterized the nature of the search. Corona’s entire
argument is premised on the search of the cell phone being a
warrantless search. However, a warrant was obtained. The
warrant application unambiguously sought authority to search
the contents of the cell phone. And while we acknowledge that
there may be issues with the language employed in the warrant
itself, Corona, in his principal brief, presents no argument that
the warrant was constitutionally infirm. We will not conduct
that analysis on his behalf. See State v. Beckering, 2015 UT App 53,
20140321-CA 14 2018 UT App 154State v. Corona
¶ 35, 346 P.3d 672. Without this argument, Corona has not
established that a motion to suppress would have been
successful. Thus, Corona fails to meet his burden of persuasion
in proving his Fourth Amendment claim. State v. MacNeill, 2017
UT App 48, ¶ 84, 397 P.3d 626. Accordingly, we discern no
ineffective assistance as to trial counsel on this point.
III. Application of Utah’s Aggravated Murder Statute
¶39 Corona next challenges the constitutionality of Utah’s
aggravated murder statute, arguing that one of the aggravating
circumstances, felony discharge of a firearm, is disproportionate
and violates the state and federal constitutions. However,
because Corona’s enhanced conviction is independently
supported under another aggravating circumstance, i.e.,
aggravated robbery, his challenge fails.
¶40 Utah’s aggravated murder statute enhances criminal
homicide to aggravated murder if, among other things, “the
homicide was committed incident to . . . aggravated robbery,” or
if the actor was previously convicted of “felony discharge of a
firearm.” Utah Code Ann. §§ 76-5-202(1)(d), -202(1)(j)(xvii)
(LexisNexis 2017). Corona was convicted of aggravated murder
based on a previous felony conviction for discharge of a firearm.
The jury also found Corona guilty of aggravated robbery. Both
factors independently support Corona’s aggravated murder
conviction, and Corona does not challenge the constitutionality
of the statute under the enhancement for aggravated robbery.
¶41 Because Corona’s aggravated murder conviction is
supported by his conviction for aggravated robbery, any
decision we make regarding the constitutionality of the felony
discharge of a firearm enhancement would not affect Corona’s
constitutional rights. Therefore, the challenge fails.
IV. Merger
¶42 Finally, Corona contends that his counsel was ineffective
for failing to argue that the five shots he fired at Victim—which
20140321-CA 15 2018 UT App 154State v. Corona
were the basis of his five separate convictions for felony
discharge of a firearm—should merge with his aggravated
murder conviction. However, Corona fails to carry his burden of
persuasion that his counsel was ineffective. 5
¶43 To prevail on an ineffective assistance of counsel claim, a
party must “demonstrate that (1) counsel’s performance was so
deficient as to fall below an objective standard of reasonableness
and (2) but for counsel’s deficient performance there is a
reasonable probability that the outcome of the trial would have
been different.” State v. Lee, 2006 UT 5, ¶ 37, 128 P.3d 1179(cleaned up), overruled on other grounds by State v. Wilder, 2018 UT
17, 420 P.3d 1064. And, as with his ineffective assistance claim
regarding the alleged Fourth Amendment violation, see supra
Part II., Corona must show that his merger claim is meritorious
in order to succeed on his claim of ineffective assistance of
counsel. See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
¶44 In Utah, merger is defined under Utah Code section
76-1-402. The merger statute “contains two merger tests.” State v.
Wilder, 2018 UT 17, ¶ 22 n.6. The first, under subsection (1) of the
statute, addresses whether the same criminal act forms the basis
for multiple criminal charges. See id. ¶ 35. The second test, found
under subsection (3) of the statute, “addresses included
offenses—predominantly lesser-included offenses.” Id. ¶ 22 n.6.
¶45 Under subsection (1),
5. A portion of Corona’s merger argument focused on common-
law merger, which was recently renounced by the Utah Supreme
Court. See State v. Wilder, 2018 UT 17, ¶ 38 (“We renounce the
common-law merger test, which we first set forth in State v.
Finlayson, 2000 UT 10, 994 P.2d 1243, and recapped in State v. Lee,
2006 UT 5, 128 P.3d 1179, and hold that the controlling test is the
statutory standard set forth in Utah Code section 76-1-402(1).”).
In line with that renunciation, we analyze only those challenges
focused on the statutory standard for merger.
20140321-CA 16 2018 UT App 154State v. Corona
[a] defendant may be prosecuted in a single
criminal action for all separate offenses arising out
of a single criminal episode; however, 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 2017). Applying this
subsection requires analyzing what constitutes a single offense.
See State v. Rasabout, 2015 UT 72, ¶ 7, 356 P.3d 1258. However,
Corona makes no argument and provides no reasoned analysis
concerning the applicability of subsection (1). Instead, Corona
attempts to characterize his felony discharge of a firearm
convictions under subsection (3) of the merger statute (and cases
analyzing that subsection) as lesser-included offenses to his
aggravated murder conviction. Following that line of analysis,
Corona does not address the question of whether one or all of
the shots fired—as well as the resulting murder—constitute a
single offense, but instead only “compare[s] the statutory
elements of each offense” and attempts to determine whether a
greater–lesser relationship exists. Accordingly, under subsection
(1), Corona has failed to demonstrate that his claim is
meritorious and has therefore failed to show that his counsel
was ineffective.
¶46 Corona’s claim under subsection (3) likewise fails.
Subsection (3) states, “A defendant may be convicted of an
offense included in the offense charged but may not be convicted
of both the offense charged and the included offense.” Utah
Code Ann. § 76-1-402(3). Ultimately, “the inquiry of whether one
crime is a lesser included offense of a greater crime under section
76-1-402 [] turns on the statutorily defined elements of the two
crimes. That is . . . the court looks to the statutory elements of the
crime to determine whether it is an included offense.” State v.
Finlayson, 2000 UT 10, ¶ 16, 994 P.2d 1243 (cleaned up), overruled
20140321-CA 17 2018 UT App 154State v. Corona
on other grounds by Wilder, 2018 UT 17, ¶ 38 (renouncing
common-law merger while holding that the statutory standard
for merger controls).
¶47 We first look to the elements of the crimes proven at trial
to identify whether the crimes “are such that the greater cannot
be committed without necessarily having committed the lesser.”
See State v. Ross, 951 P.2d 236, 241 (Utah Ct. App. 1997) (cleaned
up). Under Corona’s proposed analytical framework, aggravated
murder is the greater crime and felony discharge of a firearm is
the lesser crime. The elements of aggravated murder are (1) a
person “intentionally or knowingly” (2) “causes the death of
another,” (3) under a circumstance identified in the statute. Utah
Code Ann. § 76-5-202(1) (LexisNexis 2017). For example, as was
the case here, the homicide was committed incident to
aggravated robbery. Id. § 76-5-202(1)(d). 6 The elements of felony
discharge of a firearm, as far as we must explore them, are (1) a
person “discharges a firearm in the direction of any person”
while (2) “knowing or having reason to believe that any person
may be endangered by the discharge of the firearm.” Id. § 76-10-
508.1(1)(a).
¶48 Looking to the statutory elements of the crimes, felony
discharge of a firearm is not an included offense to aggravated
murder. While discharging a firearm in the direction of a person
could cause the death of another, a person can be guilty of
murder without necessarily being guilty of felony discharge of a
firearm. Historically, many instruments other than firearms have
been used to cause the death of another. Thus, the crimes do not
stand in a greater–lesser relationship and the crimes do not
merge under subsection (3). See State v. Chukes, 2003 UT App 155,
¶ 10, 71 P.3d 624 (“If the two offenses are such that the greater
cannot be committed without necessarily having committed the
6. The jury was instructed to accept as true that an aggravating
factor was present for the purposes of convicting Corona of
aggravated murder.
20140321-CA 18 2018 UT App 154State v. Corona
lesser, then the lesser offense merges into the greater crime and
the State cannot convict and punish the defendant for both
offenses.”(cleaned up)). As a result, Corona fails to show that his
merger claim was meritorious, and he thus fails to demonstrate
that his counsel was ineffective for not moving to merge his
convictions.
CONCLUSION
¶49 In sum, Corona’s arguments are unpersuasive. First, the
trial court did not abuse its discretion in allowing the State to
enter evidence of the prior shooting. Second, Corona’s counsel
was not ineffective for failing to challenge the admittance of cell
phone evidence. Third, Corona’s challenge to the
constitutionality of Utah’s aggravated murder statute fails
because his conviction is independently supported by his
aggravated robbery conviction. Finally, Corona has not
demonstrated that his counsel was ineffective for failing to move
to merge his felony discharge convictions with his aggravated
murder conviction because he has not shown that his merger
claim was meritorious.
¶50 Affirmed.
20140321-CA 19 2018 UT App 154