2018 UT App 219

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

RAYMOND JESUS MARQUINA,

Appellant.

Opinion

No. 20150854-CA

Filed November 23, 2018

Third District Court, Salt Lake Department

The Honorable Katie Bernards-Goodman

No. 141914264

Teresa L. Welch, Attorney for Appellant

Sean D. Reyes and Jeffrey S. Gray, Attorneys

for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which 

JUDGES KATE A. TOOMEY and DIANA HAGEN concurred.

POHLMAN, Judge:

¶1 Appellant Raymond Jesus Marquina was convicted for 

aggravated robbery, a first degree felony, after he attempted to 

rob Victim and shot him five times. Marquina now appeals that 

conviction, contending that he is entitled to a new trial because 

at least one juror may have slept through a portion of his trial. 

Marquina also contends that his conviction should be vacated 

because there was insufficient evidence to place him at the scene 

of the crime. We affirm. 
State v. Marquina

20150854-CA 2 2018 UT App 219

BACKGROUND1

The Crime

¶2 A few minutes after returning home from an evening out, 

Victim and his wife (Wife) heard a ring of the doorbell and a 

knock on the door. Victim opened the door and saw a man on 

his porch with a blue and white-streaked mask covering his 

face.2 The man was about 5'5'' tall and of average build. He said 

something that Victim could not understand and then 

“immediately started pulling” the trigger of his gun. Victim was 

shot five times in the neck and face. 

¶3 Wife, who was upstairs during the attack, heard three gun 

shots and rushed to the top of the stairs where she had a view of 

the front door. She saw “an arm with a dark-colored covering” 

and a gloved hand holding a gun. Still from her vantage point, 

Wife saw Victim fall to the floor and gurgle “lots of blood” as he 

tried to yell for her. Wife called the police and, after they arrived,

Victim was taken to the hospital. 

¶4 Neighbors also heard the gunshots. One neighbor looked 

through his window and saw two persons wearing black 

hoodies running away. Another neighbor ran out of her house in 

an attempt to see the shooter. She did not see anyone but, upon 

approaching Victim’s house, stumbled on a black mask in 

Victim’s driveway. Police later recovered the mask and sent it to 

 

1. On an appeal from a jury trial, “we review the record facts in a 

light most favorable to the jury’s verdict and recite the facts 

accordingly.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 

(quotation simplified). “We present conflicting evidence only as 

necessary to understand issues raised on appeal.” Id. 

2. Victim acknowledged that he could not be sure of the color 

because he was red-green color deficient. 
State v. Marquina

20150854-CA 3 2018 UT App 219

the crime lab for DNA testing. That testing led the police to a 

local drug dealer (Dealer). 

The Three Accomplices

¶5 Shortly before the shooting, Dealer decided to rob 

someone because he needed money to pay his rent. He had 

heard from several of his customers that Victim kept a lot of cash 

in his van and would be a good target. With help from his 

girlfriend (Girlfriend), Dealer made a plan to rob Victim.

¶6 Dealer then told his occasional chauffer (Driver) that he 

“had something [he] needed him to do.” Driver was a drug 

addict who received free drugs from Dealer. He went along with

Dealer and Girlfriend on the night of the robbery because Dealer, 

who “can’t see well at night,” needed someone to drive. 

¶7 After a police investigation, Dealer, Girlfriend, and Driver

admitted their involvement in the aggravated robbery of Victim.

And all three placed Marquina at the scene of the crime.

¶8 Marquina, who was a member of the same gang as

Dealer, had joined Dealer and Girlfriend at Dealer’s apartment

on the day of the robbery. While at the apartment, Dealer asked 

Marquina “if he wanted to go do some dirt with [him] real 

quick,” and Marquina said he did.3

¶9 Dealer, Girlfriend, Driver, and Marquina then got into

Dealer’s car.4 Dealer drove and placed a gun between the 

 

3. “Dirt,” as explained by Dealer, means a robbery. 

4. The witnesses disagreed at trial about exactly when Marquina 

got in Dealer’s car. Girlfriend testified that Marquina joined 

them as soon as they left Dealer’s apartment, but Dealer and 

Driver testified that Marquina followed them in his own truck to 

(continued...)
State v. Marquina

20150854-CA 4 2018 UT App 219

driver’s seat and the emergency brake. Because they did not 

know where Victim lived, Girlfriend tried searching the internet 

to find his address. Her search initially led them to the wrong 

neighborhood, but they eventually found Victim’s house with 

Victim’s van parked outside. They drove around the 

neighborhood “for what seemed like forever” until Girlfriend 

asked Dealer, “Are you going to do this or not?”

¶10 Dealer and Marquina eventually got out of the car, while 

Driver took the driver’s seat and circled the car around the 

block. Both Dealer and Marquina wore black hoodies, and

Dealer brought two masks—one black and one blue with white 

streaks. Marquina put on the blue and white-streaked mask, but

Dealer was unable to get his black mask on and threw it back 

toward his car. On the way to Victim’s front door, Dealer got 

nervous and sent Marquina to the door alone. Marquina rang the 

doorbell and knocked. When Victim answered, Marquina shot 

him. 

¶11 Marquina and Dealer then ran up Victim’s street until 

they spotted Dealer’s car. They yelled for Driver to stop and got 

in the backseat. Driver then drove straight back to Dealer’s 

apartment. Once there, Marquina went his own way. Girlfriend 

phoned Marquina repeatedly that night to “see if he was okay,”

but Marquina never answered.5

 

(...continued)

a parking lot a few blocks away from Victim’s house, parked his 

truck, and then got in Dealer’s car. 

5. Marquina’s cell phone records show a number of calls and text 

messages from Girlfriend both before and after the shooting. But 

during the time of the robbery—from about 9:18 p.m. to 11:10 

p.m.—there was no phone activity between Girlfriend and 

Marquina. 
State v. Marquina

20150854-CA 5 2018 UT App 219

¶12 A few weeks later, after the police had questioned Dealer, 

Girlfriend, and Driver, each of whom implicated Marquina in 

the shooting, Marquina was arrested. Marquina’s driver license 

listed him as 5'6'' and 120 pounds. Shortly after Marquina’s 

arrest, the police conducted a photo array identification with 

Victim, who survived the shooting. Marquina’s photograph 

was in the array, but Victim identified someone else as the 

shooter.

The Trial

¶13 The State charged Marquina with one count of aggravated 

robbery, which included a group enhancement.6 Dealer, 

Girlfriend, and Driver each testified at Marquina’s trial. Dealer 

had pled guilty to the aggravated robbery and agreed to testify 

even though it was “going to make [his life in prison] worse.”

He did not expect to receive “any benefit whatsoever” for 

testifying. Girlfriend pled guilty to obstruction of justice, but in 

exchange for her testimony against Marquina, she was placed on 

probation in lieu of incarceration. Driver also struck a deal that,

in exchange for his testimony, he would be placed on probation 

for robbery and would enter a rehabilitation program. Although 

all three of their accounts varied in some particulars, each 

witness placed Marquina at the scene of the crime. See supra 

¶¶ 7–12.

¶14 The trial lasted three days. On the second and third days, 

the prosecutors mentioned a sleepy juror. The first time, defense 

 

6. Under Utah Code section 76-3-203.1, a criminal defendant is 

subject to “an enhanced penalty” if the defendant acted “in 

concert with two or more persons.” Utah Code Ann. 

§ 76-3-203.1(2)(a), (5)(i) (LexisNexis 2017). Because Marquina 

allegedly robbed Victim “in concert” with Dealer, Girlfriend, 

and Driver, the State sought a group enhancement under this 

section. 
State v. Marquina

20150854-CA 6 2018 UT App 219

counsel was in the middle of cross-examining one of 

the detectives on the case when one prosecutor noticed a 

juror “nodding off.” The prosecutor asked for a break so 

the jurors could stretch, and the court agreed to take a fifteenminute recess. 

¶15 The second time, after reading the jury instructions, 

the court discussed with counsel its intention to make the lastselected juror the alternate unless the parties agreed on 

someone else. In response, a second prosecutor noted that 

“we do have someone who has been sleeping through part or—

not all but part of the testimony” and reasoned that,

because closing arguments were likely to be lengthy, it 

would “probably [be] safer to use the alternate . . . as an 

actual juror.” The prosecutor further explained that the 

juror “has been dozing off here now, but there have 

been moments when he has been seemingly out.” Defense 

counsel stated he “ha[d] not noticed any of the jurors sleeping,” 

but that he “ha[d not] really been focusing on them.” Defense 

counsel went on to refer to a judge who “is often mistaken 

by many counsel to be sound asleep . . . when the truth of 

the matter is he is just resting his eyes,” and that counsel will 

realize that “not only has he been listening but he has been 

processing everything in a very high way.” The court then 

observed that “everyone tried to stay awake” and, with no 

objection from counsel, left the jury as it was. The court also 

invited counsel to alert the court if they “change[d] [their] 

mind[s] after closing” and stated, “We will be looking at [the 

jury] this time.” 

¶16 Neither side raised further concerns after closing 

argument. The alternate juror was excused and the jury retired 

to deliberate. The jury unanimously found Marquina guilty of 

aggravated robbery, and Marquina appeals.
State v. Marquina

20150854-CA 7 2018 UT App 219

ISSUES AND STANDARDS OF REVIEW

¶17 Marquina raises two issues on appeal. First, he contends

that his Sixth Amendment right to an impartial jury was violated 

because at least one juror reportedly slept during his trial.

Normally, “[c]onstitutional issues are questions of law that we 

review for correctness,” State v. Norcutt, 2006 UT App 269, ¶ 7, 

139 P.3d 1066, but unpreserved constitutional issues, as 

Marquina concedes this is, are reviewed “under the ineffective 

assistance of counsel and plain error doctrines,” see State v. Bond, 

2015 UT 88, ¶ 14, 361 P.3d 104.

¶18 Second, Marquina contends that there was insufficient 

evidence to support his conviction for aggravated robbery. 

“When a defendant challenges a jury verdict for insufficiency 

of the evidence, we review the evidence and all inferences 

which may be reasonably drawn from it in the light most 

favorable to the verdict.” State v. Noor, 2012 UT App 187, ¶ 4, 283 

P.3d 543 (quotation simplified); see also State v. Ashcraft, 2015 UT 

5, ¶ 18, 349 P.3d 664 (“On a sufficiency of the evidence claim 

we give substantial deference to the jury.”). We will reverse a 

jury verdict only when “the evidence is sufficiently inconclusive 

or inherently improbable such that reasonable minds must 

have entertained a reasonable doubt that the defendant 

committed the crime for which he or she was convicted.” 

State v. Holgate, 2000 UT 74, ¶ 18, 10 P.3d 346 (quotation 

simplified). 

ANALYSIS

I. Sixth Amendment Jury Right

¶19 The Sixth Amendment guarantees criminal defendants 

“the right to . . . an impartial jury.” U.S. Const. amend. VI. 

Marquina contends that he was denied this right when a juror 
State v. Marquina

20150854-CA 8 2018 UT App 219

reportedly fell asleep during the trial. In support, he argues that 

the trial court had a duty to conduct voir dire7 of the allegedly 

sleepy juror to ensure the juror had not missed important 

testimony. He also argues that his defense counsel was 

constitutionally ineffective when he failed to insist that the court

conduct voir dire or, if necessary, replace the sleepy juror with 

the alternate juror. 

¶20 As noted above, Marquina concedes that this 

constitutional issue has not been preserved for appeal. See State 

v. Johnson, 2017 UT 76, ¶ 18, 416 P.3d 443 (“A failure to preserve 

an issue in the trial court generally precludes a party from 

arguing that issue in an appellate court, absent a valid 

exception.”). Marquina nevertheless urges us to review it under 

the plain error and ineffective assistance of counsel exceptions to 

the preservation rule. See State v. Ison, 2006 UT 26, ¶ 39, 135 P.3d 

864 (ineffective assistance exception); State v. Winfield, 2006 UT 4, 

¶ 14, 128 P.3d 1171 (plain error exception). But before we reach 

those arguments, we must address whether Marquina invited 

the error he now complains of by allegedly resisting the 

replacement of the sleepy juror with the alternate. See Winfield, 

2006 UT 4, ¶ 14 (explaining that the invited error doctrine 

forecloses even plain error review). Concluding that the invited 

error doctrine does not apply in this case, we then turn to the 

plain error argument regarding the trial court’s alleged failure to 

conduct voir dire of the sleepy juror and then the ineffective 

assistance argument regarding defense counsel’s alleged failure 

to insist on replacing the juror with the alternate.

 

7. Voir dire is an “examination of a prospective juror by a judge 

or lawyer to decide whether the prospect is qualified and 

suitable to serve on a jury.” Voir Dire, Black’s Law Dictionary 

(10th ed. 2014). Typically, voir dire refers to jury selection at the 

outset of trial but, in this case, it encompasses examinations after 

the jury has been selected. 
State v. Marquina

20150854-CA 9 2018 UT App 219

A. Invited Error

¶21 The State asserts that Marquina’s defense counsel invited 

any error regarding the sleepy juror by resisting the prosecutor’s 

suggestion that the sleepy juror be replaced with the alternate.

By rejecting the prosecutor’s suggestion, and even disputing 

“the prosecutor’s observation that the juror had slept through 

‘part of the testimony,’” the State maintains that defense counsel 

“led the court to believe there would be no reason to question 

the juror.” We disagree.

¶22 The “invited error doctrine arises from the principle that a 

party cannot take advantage of an error committed at trial when 

that party led the trial court into committing the error.” State v. 

Winfield, 2006 UT 4, ¶ 15, 128 P.3d 1171 (quotation simplified). 

Invited error occurs when counsel “independently ma[kes] a 

clear affirmative representation of [an] erroneous principle” that 

leads the court astray. State v. McNeil, 2016 UT 3, ¶ 18, 365 P.3d 

699 (citing cases).

¶23 The Utah Supreme Court has previously rejected attempts 

to broaden the scope of the invited error doctrine beyond this 

affirmative-representation model. In McNeil, the State argued 

that trial counsel for the defendant had invited error not through 

“affirmative representation” but through “affirmative 

acquiescence” by failing to make a proper objection to the 

admission of hearsay evidence. Id. ¶¶ 18, 21 (quotation 

simplified). The supreme court was unpersuaded by this 

argument “because an error of this sort . . . is not invited but 

merely unpreserved.” Id. ¶ 21. It accordingly “reject[ed] [the 

State’s] broad definition of invited error” and reviewed the 

defendant’s claim for plain error. Id. ¶¶ 21, 24; see also State v. 

Harris, 2012 UT 77, ¶ 23, 289 P.3d 591. 

¶24 Here, Marquina’s defense counsel, while perhaps 

affirmatively acquiescing in the court’s decision to keep the 

current composition of the jury without making further inquiry, 
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20150854-CA 10 2018 UT App 219

did not make any affirmative representation to the court that the 

panel was acceptable. See Winfield, 2006 UT 4, ¶ 18 (concluding 

that counsel’s affirmative representation that he “absolutely 

found the panel acceptable” during jury selection “f[ell] squarely 

within the scope of [the] invited error doctrine” (quotation 

simplified)). After the prosecutor alerted the court that 

“someone . . . ha[d] been sleeping through part . . . of the 

testimony,” defense counsel responded by saying that he “ha[d] 

not noticed any of the jurors sleeping,” but that he “ha[d not] 

really been focusing on them.” Counsel went on to explain the

difficulty in knowing whether someone really was sleeping and 

pointed to the possibility that someone might just be “resting 

[his or her] eyes” but still “processing everything in a very high 

way.” The court then decided to keep the jury as it was but to 

keep an eye on the jurors. It also informed counsel that if they 

changed their minds, they could revisit the issue. From the 

record it is clear that defense counsel did not affirmatively tell 

the court to either forgo voir dire or to not replace the juror with 

the alternate. And although the court told counsel they could 

change their minds, defense counsel’s failure to thereafter

request an alternate juror does not make the error here “invited 

but merely unpreserved.” See McNeil, 2016 UT 3, ¶ 21. 

¶25 To be sure, the State characterizes defense counsel’s 

response here as an affirmative representation and not merely 

acquiescence. For example, it asserts that counsel “openly 

resisted the prosecutor’s request” to substitute the alternate juror

for the sleepy juror and that he “clearly indicated that he did not 

want the allegedly sleepy juror relegated to alternate status.” We

disagree with these characterizations. Although it is true that 

defense counsel did not ask for the juror to be questioned, and 

instead suggested an alternative to the prosecutor’s theory that 

the juror was asleep, he did not affirmatively state that the court 

should not conduct voir dire of the sleepy juror or replace him. 

Thus, his statements do not “reveal[] that [he] independently 

made a clear affirmative representation of the erroneous 

principle.” See id. ¶ 18. In short, on these facts, we do not think 
State v. Marquina

20150854-CA 11 2018 UT App 219

Marquina’s defense counsel invited the error. We therefore

proceed to analyze the sleeping juror issue for plain error.

B. Plain Error

¶26 Marquina contends that the trial court committed plain 

error, arguing that “the trial court failed to properly voir dire the 

sleeping juror after receiving two reliable reports that a juror 

was sleeping during a portion of the trial.” He also asserts that 

this error was obvious because Utah case law establishes “the 

need for a trial judge to assess the jurors’ ability to deliberate and 

decide a case” and “[c]ase law across the nation” establishes that 

“a trial judge [must] do a proper voir dire of a juror after 

receiving a reliable report that a juror has been sleeping.”

Finally, he asserts that the error was prejudicial because “a fully 

awake juror would . . . have recognized the problems” in the 

State’s case and may have helped acquit him.

¶27 We invoke the plain error exception to the preservation 

requirement “sparingly.” State v. Harris, 2012 UT 77, ¶ 24, 289 

P.3d 591. “To show plain error, a party must establish three 

things: (1) that an error exists, (2) that the error should have been

obvious to the trial court, and (3) that the error is harmful.” Id.

“If any one of these requirements is not met, plain error is not 

established.” State v. Dean, 2004 UT 63, ¶ 15, 95 P.3d 276

(quotation simplified). Thus, if we conclude that the alleged 

error was not obvious, we need not analyze whether it was 

harmful. See, e.g., Harris, 2012 UT 77, ¶ 25.

¶28 “To establish that the error should have been obvious to 

the trial court, [Marquina] must show that the law governing the 

error was clear at the time the alleged error was made.” See 

Dean, 2004 UT 63, ¶ 16. In other words, there must be “settled 

appellate law to guide the trial court.” State v. Robinson, 2018 UT 

App 103, ¶ 40, 427 P.3d 474 (quotation simplified). 

¶29 In the handful of Utah appellate cases discussing a 

sleeping juror’s effect on a trial, one principle predominates: 
State v. Marquina

20150854-CA 12 2018 UT App 219

discretion. Indeed, handling a sleeping juror is “so peculiarly 

within the observation, province, and discretion of the trial court 

that we should not interfere with the ruling, except upon a clear 

abuse of discretion.” State v. Mellor, 272 P. 635, 639 (Utah 1928); 

see also State v. Lesley, 672 P.2d 79, 82 (Utah 1983) (stating that the 

“trial judge was in a position to gauge the degree, if any, of the 

juror’s incapacity to serve in the trial” and affirming the denial 

of a motion for a mistrial after a juror allegedly fell asleep); State 

v. Pace, 527 P.2d 658, 659 (Utah 1974) (noting the “sound 

discretion of the trial judge” and affirming the denial of a motion 

for a mistrial after two jurors allegedly fell asleep). Generally 

speaking, a trial court abuses its discretion when its decision is 

“beyond the limits of reasonability.” Ross v. State, 2012 UT 93, 

¶ 57, 293 P.3d 345 (quotation simplified).

¶30 Marquina reads Mellor, Lesley, and Pace as saying that a 

trial court is under a duty “to inquire about the scope and 

importance of the testimony that a sleepy juror misse[d].” Only 

after this inquiry, according to Marquina, is a trial court entitled 

to deference as in Mellor, Lesley, and Pace. For example, 

Marquina asserts that in Mellor, our supreme court observed that 

the trial court made a “finding” that the juror “at several 

different times had gone to sleep, but only for two or three 

minutes, just a short time.” See 272 P. at 639. The juror testified 

that he had “heard and understood all that transpired in the 

courtroom during the trial.” See id. In Marquina’s view, this 

testimony allowed the court to find that the “juror could decide 

the case because he heard the testimony offered at trial.”

Marquina asserts that the court in this case made no such finding

and therefore, under “well-established . . . Utah case law,” is not 

entitled to the same deference as in Mellor. 

¶31 The “settled appellate law” in Utah, however, does not

resemble the picture Marquina paints on appeal. Our supreme 

court in Mellor indicated that the trial court found that the juror 

slept for only a short time, but the supreme court did not 

announce a rule or template trial courts must follow whenever
State v. Marquina

20150854-CA 13 2018 UT App 219

they are confronted with reports of a sleepy juror. See id. Instead, 

Mellor established that trial courts, when presented with reports 

of sleeping jurors, are given wide discretion in how to respond. 

Id. And the specific response depends on the facts of the case, 

including how the issue was brought to the court’s attention. See 

Lesley, 672 P.2d at 80–82 (discerning no abuse of discretion in 

denying a motion for a mistrial when defense counsel “made no 

complaint about the juror during the proceedings, but merely 

moved for a mistrial after the judge recessed court”); Pace, 527 

P.2d at 659 (affirming the denial of a motion for a mistrial 

because the court personally “observed the whole jury” and saw 

the sleeping juror wake up before it “had a chance to call it to 

[the juror’s] attention” (quotation simplified)).

¶32 Here, on the second day of trial, the prosecutor alerted the 

court that a juror was “nodding off” and requested a break to 

allow the jury to stretch. The prosecutor’s report did not suggest 

to the court that the juror had actually fallen asleep or had been 

sleeping for an extended period, and the prosecutor’s request for 

a break suggested that no more was needed to remedy the issue.

Based on the wide discretion given to trial courts in these 

circumstances, it would not have been obvious to the trial court 

that it was required to do more than grant the State’s request for

a short recess. 

¶33 And on the third day of trial, the prosecutor suggested it 

may be “safer” to use the alternate juror based on 

her observation that a juror had been “sleeping through part . . .

of the testimony” and at times had been “seemingly out.”

Defense counsel, however, responded that he had not seen 

anyone sleeping and expressed no concern, even suggesting that 

what may look like sleep instead may be deep thought. Thus, it 

would not have been obvious to the trial court that it was 

required to do more than what it did. The trial court stated it 

would keep a close eye on the jurors and also gave counsel on 

both sides an opportunity to “change [their] mind[s]” and ask 

for the juror to be replaced with the alternate, but neither raised 
State v. Marquina

20150854-CA 14 2018 UT App 219

the issue again.8 On this record, we cannot conclude that the trial 

court plainly erred in how it chose to handle the sleepy juror. 

¶34 Marquina also looks outside Utah for authority that a trial 

court is obliged to conduct voir dire whenever it receives a 

“reliable report” of a sleeping juror. He points to cases from 

Massachusetts, New York, Ohio, and South Carolina to support 

his position.9 But none of these cases are binding. And even 

assuming that nonbinding precedent from other jurisdictions 

could constitute “settled appellate law” for purposes of our 

obviousness inquiry, see Robinson, 2018 UT App 103, ¶¶ 40–41

(quotation simplified), the cases cited by Marquina do not 

represent a settled consensus. Utah law does not require a court

to conduct sua sponte a voir dire after a report of a sleepy juror, 

and a number of federal circuits that have addressed the issue 

likewise do not require voir dire. United States v. McKeighan, 685 

F.3d 956, 975 (10th Cir. 2012) (concluding there was no error in 

not investigating whether jurors were sleeping when defense 

counsel did not ask the court to investigate or request the 

substitution of alternate jurors); United States v. Freitag, 230 F.3d 

1019, 1024 (7th Cir. 2000) (rejecting the argument that a “district 

judge should have inquired further” when the judge “had not 

noticed an extensive sleeping problem”); United States v. Holder, 

652 F.2d 449, 451 (5th Cir. 1981) (similar). Therefore, any error in

not following the cases Marquina cites would not have been 

 

8. As discussed below, infra ¶ 39, we presume defense counsel’s 

actions might be considered sound trial strategy, and we observe 

that a trial court “is not required to constantly survey or secondguess a nonobjecting party’s best interests or trial strategy.” State 

v. Bedell, 2014 UT 1, ¶ 26, 322 P.3d 697 (quotation simplified). 

9. See Commonwealth v. McGhee, 25 N.E.3d 251, 255–58 (Mass. 

2015); People v. Franqui, 999 N.Y.S.2d 40, 41 (App. Div. 2014); 

State v. Majid, 914 N.E.2d 1113, 1114–17 (Ohio Ct. App. 2009);

State v. Hurd, 480 S.E.2d 94, 97 (S.C. Ct. App. 1996) (per curiam). 
State v. Marquina

20150854-CA 15 2018 UT App 219

obvious to the trial court. Accordingly, Marquina has not 

established plain error. See Pace, 527 P.2d at 659 (“Hence there 

seems to have been nothing in the eyes of the beholder, nor in 

the arms of Morpheus reflecting that the juror could have been 

ensconced, so as to have stupefied the veniremen, or the sound 

discretion of the trial judge.”).

C. Ineffective Assistance of Counsel

¶35 Alternatively, Marquina contends that his defense counsel 

rendered constitutionally ineffective assistance of counsel. He 

argues that his counsel’s performance “was deficient in failing to 

object to the sleeping juror” and in failing “to agree to the 

prosecutor’s request to replace the sleeping juror with the 

alternate.” Further, he asserts that there “would be no strategic 

choice by defense counsel to insist on keeping a sleeping juror in 

this matter.” 

¶36 The Sixth Amendment guarantees criminal defendants 

the right to effective assistance of counsel. Strickland v. 

Washington, 466 U.S. 668, 684–86 (1984). To show ineffective 

assistance, a defendant must show (1) that his counsel’s 

performance was objectively deficient, and (2) “that the deficient 

performance prejudiced the defense.” Id. at 687–88. “A failure to 

prove either element defeats the claim.” State v. Horvath, 2018 UT 

App 165, ¶ 30 (quotation simplified). 

¶37 “With regard to the first prong, we ‘must indulge a 

strong presumption that counsel’s conduct falls within the 

wide range of reasonable professional assistance.’” State 

v. Calvert, 2017 UT App 212, ¶ 22, 407 P.3d 1098 (quoting 

Strickland, 466 U.S. at 689). The “presumption may be overcome 

only if there is a lack of any conceivable tactical basis 

for counsel’s actions.” State v. King, 2012 UT App 203, ¶ 14, 283 

P.3d 980 (quotation simplified). “This presumption accounts 

for the widely varying circumstances faced by defense 

counsel and the range of legitimate decisions regarding how best 
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20150854-CA 16 2018 UT App 219

to represent a criminal defendant.” Met v. State, 2016 UT 51, 

¶ 113, 388 P.3d 447 (quotation simplified). And counsel is 

given an especially wide berth with regard to jury selection 

and retention. See State v. Litherland, 2000 UT 76, ¶ 20, 12 P.3d 92. 

This is because “jury selection is more art than science”:

There are a multitude of inherently subjective 

factors typically constituting the sum and 

substance of an attorney’s judgments about . . .

jurors. A . . . juror’s demeanor, interaction with 

others in the courtroom, and personality in general 

may all play an important role in providing clues 

as to that juror’s likely predilections toward the 

case at hand.

Id. ¶ 21.10

¶38 Counsel’s choices about the jury “may even 

appear counterintuitive, particularly when viewed from 

the perspective of a bare transcript on appeal.” Id. ¶ 22. 

For example, counsel may reasonably think that a potentially 

biased juror may “overcompensate” and “assign[] more 

weight or credibility to testimony that tends to oppose the 

juror’s own potential bias.” Id. At bottom, an attorney’s decisions 

regarding the jury “legitimately may be based on little more than 

personal preference.” Id. ¶ 23. 

 

10. Litherland discussed jury selection at the outset of trial. 

Although here we address the potential substitution of a juror 

near the end of trial, we agree with the State that Litherland’s 

rationale applies. Indeed, by the end of trial, counsel will have 

had even more time to observe jurors and determine their “likely 

predilections toward the case.” See State v. Litherland, 2000 UT 76, 

¶ 21, 12 P.3d 92.
State v. Marquina

20150854-CA 17 2018 UT App 219

¶39 Here, we must presume Marquina’s defense counsel’s 

conduct fell “within the wide range of reasonable professional 

assistance.” Calvert, 2017 UT App 212, ¶ 22 (quotation 

simplified). Jury selection and retention are “more art than 

science,” Litherland, 2000 UT 76, ¶ 21, and Marquina’s counsel 

was able to observe the jurors, including the alternate, over the 

course of three days. Everything from the jurors’ demeanors to 

their reactions to testimony may have played a role in counsel’s 

decision not to insist on replacing the sleepy juror. He may have 

simply preferred the jury he had. Even if this choice seems 

“counterintuitive,” counsel may have reasonably thought that a 

sleepy juror would “overcompensate” and would be reluctant to 

convict. See id. ¶ 22 (quotation simplified). Moreover, counsel’s 

choices are viewed objectively; “[t]he first prong of the Strickland 

standard . . . requires that a defendant rebut the strong 

presumption that under the circumstances, the challenged action 

might be considered sound trial strategy.” Id. ¶ 19 (emphasis 

added) (quotation simplified). Marquina argues that without 

knowing who the sleepy juror was or insisting on an inquiry into 

what was missed, his defense counsel “could not make a 

reasonable tactical decision” to keep the juror. But even without 

knowing who the sleepy juror was, defense counsel may have 

preferred any of the actual jurors over the alternate juror. 

Moreover, although the record is unclear as to which juror may 

have been sleeping, the prosecutor might have communicated 

the information off the record. Therefore, we will not presume 

that counsel’s conduct here was unreasonable “viewed from the 

perspective of a bare transcript on appeal.” See id. ¶ 22. Because 

Marquina has not demonstrated his counsel was objectively 

deficient, he has not established ineffective assistance of counsel. 

II. Sufficiency of the Evidence

¶40 Marquina next contends that there is insufficient evidence 

to convict him of aggravated robbery. He asserts that there is no 

physical or DNA evidence placing him at the crime scene and 

that “the only evidence that placed [him] at the crime scene was 
State v. Marquina

20150854-CA 18 2018 UT App 219

the unreliable, inconsistent and biased testimonies of” Dealer, 

Girlfriend, and Driver. Therefore, because there is insufficient 

evidence to place Marquina at the crime scene, Marquina argues

that his conviction should be reversed. 

¶41 We first address whether this argument was preserved 

below. After concluding that it was not, we review the claim for 

plain error. 

A. Preservation

¶42 As with other claims, “a defendant must raise the 

sufficiency of the evidence by proper motion or objection to 

preserve the issue for appeal.” State v. Holgate, 2000 UT 74, ¶ 16, 

10 P.3d 346. This is generally done through a motion for a 

directed verdict. See State v. Mohamed, 2012 UT App 183, ¶ 2, 282 

P.3d 1066 (per curiam). But to preserve an issue for appeal, “the 

issue must be specifically raised such that the issue was 

sufficiently raised to a level of consciousness before the trial 

court.” Id. (emphasis added) (quotation simplified). Thus, the 

basis for the motion for a directed verdict must be the same as 

the basis for the insufficiency claim urged on appeal. See id. 

(concluding an insufficiency argument was unpreserved because 

the basis for the motion for a directed verdict at trial differed 

from what was argued on appeal); see also State v. Noor, 2012 UT 

App 187, ¶ 7, 283 P.3d 543 (same). 

¶43 Here, Marquina contends that his insufficiency argument 

was preserved through a motion for a directed verdict at trial.

But the basis for that motion was that there was insufficient 

evidence of a robbery—not that Marquina was absent from the 

scene of the crime. At trial, Marquina’s defense counsel argued 

that there was “no evidence of a robbery” because “there [was] 

no evidence that there was an attempt or an effort to steal 

anything.” His counsel conceded, however, that the evidence 

“d[id] show, perhaps, an aggravated assault or perhaps an 

attempted murder.” Now on appeal, Marquina argues not that 
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20150854-CA 19 2018 UT App 219

there was insufficient evidence of a robbery but that there was 

insufficient evidence to support the assertion that he was there.

This argument was not “specifically raised such that the issue 

was sufficiently raised to a level of consciousness before the trial 

court.” See Mohamed, 2012 UT App 183, ¶ 2 (quotation 

simplified). Therefore, it was not preserved for appeal.

B. Plain Error

¶44 Marquina contends that the insufficiency of the evidence 

placing him at the scene of the crime is “so obvious and 

fundamental” that it can be reviewed for plain error. (Quotation 

simplified.) Marquina’s arguments in support of this contention

generally relate either to a lack of physical evidence placing him 

at the crime scene or to the “unreliable, inconsistent, and biased 

testimonies” of Dealer, Girlfriend, and Driver. 

¶45 To establish plain error in this context, “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.” State v. Holgate, 2000 UT 74, 

¶ 17, 10 P.3d 346. On the first prong of that test, “we give 

substantial deference to the jury.” State v. Ashcraft, 2015 UT 5, 

¶ 18, 349 P.3d 664. “We do not sit as a second trier of fact: It is 

the exclusive function of the jury to weigh the evidence and to 

determine the credibility of the witnesses.” State v. Boyd, 2001 UT 

30, ¶ 16, 25 P.3d 985 (emphasis omitted) (quotation simplified); 

see also State v. Pendergrass, 803 P.2d 1261, 1267 (Utah Ct. App. 

1990) (“We defer to the jury because a jury is in the best position 

to give proper weight to the peripheral nature of any 

contradictory testimony.” (quotation simplified)).

¶46 Importantly for this case, “[a] conviction may be had on 

the uncorroborated testimony of an accomplice.” Utah Code 

Ann. § 77-17-7(1) (LexisNexis 2017). And while the defense can 

put on evidence to try to undermine that testimony, “the jury is 
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20150854-CA 20 2018 UT App 219

not obligated to believe that evidence,” State v. Smith, 706 P.2d 

1052, 1056 (Utah 1985), or “compelled to accept the existence of 

reasonable doubt posited by the defense’s finger-pointing,” 

Ashcraft, 2015 UT 5, ¶ 29. “So long as there is some evidence, 

including reasonable inferences, from which findings of all the 

requisite elements of the crime can reasonably be made, our 

inquiry stops.” Boyd, 2001 UT 30, ¶ 16 (quotation simplified).

¶47 Marquina’s challenge to the sufficiency of the evidence is 

effectively resolved by Smith. In that case, a defendant was 

convicted of aggravated robbery. Smith, 706 P.2d at 1054. The 

only evidence linking him to the crime was the testimony of two 

accomplices, each of whom had struck a deal with the 

prosecutors for blanket immunity or dropped charges in 

exchange for their truthful testimony. Id. at 1054–55. Although 

the victim of the crime was unable to identify his assailants, the 

accomplices testified to their involvement in the robbery and 

that the defendant was the getaway driver. Id. at 1055. After 

being convicted, the defendant argued that there was insufficient 

evidence to support the jury’s verdict. Id. Our supreme court 

noted that “[t]here [was] no question that conflicting evidence 

was adduced at trial which would negate defendant’s 

participation in the . . . robbery.” Id. at 1056. But the court stated 

that “the jury [was] not obligated to believe that evidence” and 

concluded that, based on the accomplice testimony alone, “the 

evidence was not so lacking and insubstantial that a reasonable 

person could not have determined beyond a reasonable doubt 

that defendant committed [the] robbery.” Id. at 1056–57.

¶48 Similarly, the evidence here is “not so lacking and 

insubstantial that a reasonable person could not have 

determined” that Marquina committed the crime. See id.

Although Victim was unable to identify Marquina’s photo in the 

photo array, he was able to roughly describe Marquina’s height 

and weight (about 5'5'' tall and average build) and the blue and 

white-streaked mask that Girlfriend testified Marquina wore.

And even without that evidence, the three accomplices—Dealer, 
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20150854-CA 21 2018 UT App 219

Girlfriend, and Driver—each admitted to their involvement in 

the crime and placed Marquina at the crime scene. See Utah 

Code Ann. § 77-17-7(1) (“A conviction may be had on the 

uncorroborated testimony of an accomplice.”).

¶49 As in Smith, some of the accomplices here reached a deal 

with prosecutors for their truthful testimony, though Dealer 

testified that he did not expect to receive “any benefit 

whatsoever” for testifying at Marquina’s trial and that it was 

“going to make [his life in prison] worse.” The defense was free 

to present evidence to show the witnesses’ unreliability or 

biases, which it did. The defense was also able to point out 

inconsistencies in the witnesses’ testimonies. But “the jury [was] 

not obligated to believe that evidence.” Smith, 706 P.2d at 1056.

The witnesses’ accounts differed in some particulars, but as to 

the core issue—Marquina’s involvement in the aggravated 

robbery of Victim—the stories were consistent. At bottom, it was 

for the jury to “weigh the evidence and to determine the 

credibility of the witnesses.” Boyd, 2001 UT 30, ¶ 16 (quotation 

simplified). On appeal, we will not second-guess the jury or “sit 

as a second trier of fact.” Id. Thus, viewing the facts in the light 

most favorable to the verdict, we cannot say the insufficiency of 

the evidence here “was so obvious and fundamental that the 

trial court erred in submitting the case to the jury.” See State v. 

Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346. 

CONCLUSION

¶50 We conclude that Marquina has not demonstrated that 

the trial court plainly erred in not sua sponte conducting voir 

dire or removing an allegedly sleepy juror. We likewise conclude 

that Marquina has not demonstrated that his defense counsel 

rendered constitutionally ineffective assistance by not requesting

that the juror be removed. Finally, we conclude that the evidence 

was not so lacking that the trial court plainly erred in submitting 

the case to the jury. Accordingly, we affirm.