2021 UT App 29

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

SHANE PATRICK SAMORA,

Appellant.

Opinion

No. 20180983-CA

Filed March 18, 2021

Third District Court, Salt Lake Department

The Honorable Linda M. Jones

No. 171906629

Herschel Bullen, Attorney for Appellant

Sean D. Reyes and Christopher D. Ballard,

Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion,

in which JUDGE DAVID N. MORTENSEN and

SENIOR JUDGE KATE APPLEBY concurred.1

HARRIS, Judge:

¶1 A jury convicted Shane Patrick Samora of aggravated 

robbery for holding up a convenience store at knifepoint. 

Samora appeals that conviction, asserting that the trial court 

improperly admitted two categories of evidence used at trial, 

and that the evidence was insufficient to establish that he was 

the robber. We affirm. 

 

1. Senior Judge Kate Appleby sat by special assignment as 

authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
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BACKGROUND2

¶2 Just after dusk one summer evening, a clerk (Clerk) on 

duty at a Chevron convenience store observed a man enter the

store wearing black and white tennis shoes, black shorts, and “a 

pullover hoodie.” Clerk and the man were the only people in the 

store at the time. Clerk greeted the man, and went to the register 

to assist him. Once Clerk arrived at the register, he looked up 

and noticed that the man was wearing “a mask over [his] face.”3

The man told Clerk, “This is a robbery,” and instructed Clerk to 

“[g]ive [him] the money.” Clerk initially thought the man was 

joking. The man repeated his demand, and Clerk responded by 

telling the man to “get out of [the] store.” The man then took out 

a ten-to-twelve-inch kitchen knife, showed it to Clerk, and stated 

his demand for money a third time. 

¶3 At this point, Clerk realized the situation was “more 

serious” than he initially thought, and he told the man, “[G]et 

out of my store or I’ll call the cops. I’m not going to give you any 

money.” The man then thrust the knife “across the counter,” and 

pointed it “directly” at Clerk. Although Clerk was “very 

frightened” and “took a step back” away from the knife, he 

again told the man to leave and that he was “calling the cops.” 

This time, the man left, and Clerk decided to “follow [him] out 

of the store.” 

 

2. “On appeal, we recite the facts from the record in the light 

most favorable to the jury’s verdict and present conflicting 

evidence only as necessary to understand issues raised on 

appeal.” Layton City v. Carr, 2014 UT App 227, ¶ 2 n.2, 336 P.3d 

587 (quotation simplified).

3. The events in question occurred in 2017, before the onset of the 

COVID-19 pandemic; at that time, it was unusual to encounter 

people wearing masks over their faces in public places. 
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¶4 Once he was outside the store, still following the man, 

Clerk called 911 on his cell phone. While on the phone with the 

911 operator, Clerk continued to trail the man, but briefly lost 

sight of him for about ten seconds as the man turned a corner 

onto the sidewalk and disappeared behind a fence. The sidewalk 

where the man was walking did “not [have] foot traffic” that 

night. Clerk continued walking in the direction he had seen the 

man go, and after rounding the same corner onto the same 

sidewalk he saw “an individual dressed in the same clothing” 

and with the “same height, same body build” as the robber

walking in the direction the man had been walking. At this point 

Clerk was “30 to 40 feet” behind the man, and followed him to 

“a place of residence,” which Clerk described as a “gray 

building” with a green “awning on the front of it.” Clerk 

watched the man enter the building through a door located 

beneath the green awning. Clerk had remained on the phone 

with the 911 operator the entire time he followed the man, and 

he described to the operator in real time the building—including 

its address—that the man had just entered. 

¶5 Immediately after getting off the phone with the 911 

operator, Clerk returned to the store and called his manager 

(Manager), who was out of town on vacation, to inform her of 

the robbery. The convenience store was equipped with a 

surveillance system that recorded video but not audio, and 

which could be accessed remotely via a cell phone application. 

Upon receiving the call from Clerk, Manager—who was the only 

person with access to the surveillance system—immediately 

accessed the application on her cell phone and “watched what 

had happened.” Manager took six screenshots of the footage of 

the robbery and sent them to Clerk via text message. In those 

screenshots, a masked man can be seen entering the store and 

approaching the counter, and later pointing a knife at Clerk. The 

man in the screenshots has a “horseshoe shape[d]” receding

hairline, and is wearing white athletic shoes with crisscrossed 

black laces, black shorts, and a black hooded sweatshirt over a 
State v. Samora

20180983-CA 4 2021 UT App 29

white t-shirt. In most of the screenshots, the man has a mask 

over the bottom part of his face. 

¶6 Police responded within five minutes, with one officer 

meeting Clerk at the convenience store while two others were 

dispatched to the gray building Clerk had seen the man enter. 

Upon their arrival at the building, the two officers saw a man

standing in the doorway who appeared to match the description 

given by Clerk; the man was “wearing a white shirt with black 

shorts,” as well as white athletic shoes with small red marks on 

the sides and black laces tied in a distinctive crisscross pattern.

This man was Samora, and soon after “ma[king] eye contact” 

with one of the officers, he went inside and shut the door. The 

officers then approached the doorway, which turned out to lead 

into a residential apartment where Samora lived, and 

subsequently placed Samora under arrest, taking (among other 

things) Samora’s shoes as evidence. 

¶7 Meanwhile, officers took a statement from Clerk, and the 

investigating detective (Detective) acquired electronic copies of 

the six screenshots that Manager had sent to Clerk.4 Detective 

then traveled to the apartment building, visually compared 

Samora to the man in the photos, and “felt comfortable” that 

Samora was the robber.

 

4. About three weeks after the robbery, Detective attempted to 

obtain the entire surveillance video of the incident from a 

computer in the store office, where footage from the surveillance 

system is typically stored. But Detective was unable to recover 

the video, apparently because the system is set to periodically 

and routinely delete video files unless action is taken to save 

them, and no one had saved the entire video before the routine 

deletion occurred. Accordingly, the six screenshots are the only 

evidence available from the video taken by the surveillance 

system on the night of the robbery. 
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¶8 Detective obtained a warrant to search Samora’s 

apartment. While executing the search, Detective found a knife 

in a kitchen drawer that looked similar to the knife used in the 

robbery. Detective also found a “dark-colored hoodie,” featuring 

a distinctive “chevron” pattern, hanging on a hook located on 

the wall “right next to the door in the entryway.” Detective took 

the knife and the hoodie as evidence. 

¶9 The State charged Samora with aggravated robbery, a 

first-degree felony.5 As the case proceeded toward trial, the State 

recognized that two characteristics of the clothing taken from 

Samora and from his apartment do not appear on the person in 

the screenshots from the surveillance video: (1) the distinctive 

chevron pattern on the hoodie found in the apartment; and (2) 

the red marks on the sides of the otherwise-white athletic shoes 

Samora was wearing during his arrest. Believing that the 

absence of these two features in the screenshots could be due to 

the way the store’s surveillance system captures images, 

Detective and a forensic examiner took the hoodie and the shoes 

to the store and attempted to “reconstruct” the screenshots taken 

of the surveillance system footage. Detective and the examiner 

attempted “to match[] up” the crime scene “as best [they] could” 

by reconstructing the scene at night. The shoes were also 

arranged in certain ways, such as “plac[ing] something 

underneath the shoe” to “recreate the step and the walking 

motions” taken when the robber walked into the store, and 

 

5. As defined, the crime of “aggravated robbery” includes the 

“use[] or threat[] to use a dangerous weapon,” and can occur not 

only “during the commission of . . . a robbery,” but also “in an 

attempt to commit . . . a robbery.” See Utah Code Ann. § 76-6-

302(1), (3) (LexisNexis 2017). In this case, Samora was charged 

with aggravated robbery even though he did not actually 

succeed in taking anything, and he does not contest the State’s 

use of the statute in this manner. 
State v. Samora

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“us[ing] the grout lines” in the floor to arrange the shoes exactly 

where the robber was when he approached the counter.

Detective also held up the hoodie in front of the counter in 

roughly the same place the robber would have occupied, and at 

roughly the same height.

¶10 Through counsel, Samora filed a pretrial motion to 

exclude the comparison photos taken at the reconstructed crime 

scene. The trial court held a hearing to consider the motion, 

during which Detective testified about how the comparison 

photos had been generated. Detective also explained how, when 

viewing the comparison photos, it was not possible to see either 

the red coloring on the shoes or the chevron pattern on the 

hoodie; in those photos, taken using the store’s surveillance 

system, the shoes appeared entirely white (apart from the black 

crisscrossed laces), and the hoodie “appear[ed] jet black,” 

without any visible pattern. After argument, the court 

determined that the comparison photographs’ probative value 

was high, that the evidence would “not be cumulative,” and that 

the probative value was not substantially outweighed by 

considerations such as wasting time or confusing the jury. The 

court made a “conditional” ruling that the comparison photos 

were admissible, so long as the State “la[id] the adequate 

foundation” at trial.

¶11 After his arrest, Samora was detained in the county jail for 

several days, during which time he made several phone calls to 

his wife (Wife), in which they discussed the events that took 

place on the night of the robbery. The calls Samora made from 

jail were all being recorded, and he knew it. The State first asked

the trial court to admit these recordings pursuant to rule 404(b) 

of the Utah Rules of Evidence. Samora objected and, after a 

hearing, the court ruled that none of the recordings were 

admissible under rule 404(b) because they did “not support . . .

noncharacter purposes,” and that, viewed through a prior-badacts lens, they were also inadmissible under rule 403 of the Utah 
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Rules of Evidence because “the probative value of the [calls was] 

substantially outweighed by the danger of unfair prejudice, 

confusing the issues, and misleading the jury.”

¶12 Later, however, the State made a more targeted effort, 

seeking admission of only five short clips of the phone calls, and 

this time representing that it had “carefully cut each clip to 

eliminate any [rule] 404(b) related conduct.” This time, the State 

relied on rules 104(b) and 801(d)(2) of the Utah Rules of 

Evidence as the basis for admission, characterizing the 

statements Samora made in the five clips as utterances that a 

reasonable jury could find relevant as statements of a partyopponent. Samora’s counsel objected to two of the clips in their 

entirety, and to part of a third clip; the trial court sustained that 

objection again under rule 403, and barred the State from 

introducing the clips to which Samora’s counsel had objected. 

But Samora’s counsel did not object to the two other clips and 

the remaining portion of the third clip, because she did not 

believe that Samora had “legal grounds to object” to them. The 

three clips that survived this pretrial motion were all played for 

the jury during trial.

¶13 The first of the three clips was from a call Samora placed 

to Wife on the day after he was arrested: 

Wife: Well, that’s what, well, number one, did 

you actually get anything out of it?

Samora: No.

Wife: Did you actually take anything? 

Samora: No, it—

Wife: Well, then they’re—right now they’re 

charging you with aggravated robbery, 

which they need to lower it to attempted 

if you didn’t steal—if you didn’t take 

anything.
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20180983-CA 8 2021 UT App 29

Samora: I didn’t—I didn’t even go in there, baby. 

[inaudible] Listen, I wasn’t even around. 

These phones are recorded. I didn’t—I 

wasn’t even around there. 

The second clip was from later in the same phone call:

Samora: I ain’t admitting to nothing. I’m just 

hypothetically saying . . . 

Wife: Yeah.

Samora: You already told me that the guy from 

the store followed me home.

Wife: Yeah.

Samora: The guy from the store followed me 

home.

Wife: Yeah, I know. I saw him out there. I was 

like “Oh shit.” That’s the guy that I know 

that always gives me shit when I—you

know, when I go in.

Samora: Yeah. Where was he? Over by where the 

police parked?

Wife: Yeah.

Samora: Oh. Did he see you?

Wife: You said—you said Conoco, so I thought 

you meant the Texaco. And then when I 

saw him, I thought, “Fuck, it was the 

Chevron.”

Samora and Wife: [laughing]

And the third clip was from a phone call four days after the 

robbery, when Samora and Wife were again referring to Clerk:
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20180983-CA 9 2021 UT App 29

Samora: Cuz [sic] he’s always been our friend. I 

don’t know why he’d accuse me of 

something. 

Wife: Right. 

Samora: We’ve always been good with him. 

Wife: Yup. 

Samora: Got no right to accuse me. You know, just 

challenge, say hey, you know, “That’s my 

husband you’re accusing.” [inaudible]

Wife: Right. You know when adrenaline’s 

pumping and things are happening, you 

know, your, you know, your perceptions 

of things tend to not be always accurate. 

Samora: Yup. And so far, so good. I just—the 

thing that I’ve been thinking about too is 

he had to be real close to me to see me 

turn into the apartment. I—

Wife: Yeah.

Samora: I wasn’t—I wasn’t walking or running 

from nobody. So—

Wife: Uh-huh.

Samora: I don’t know. You know, there’s seven

apartments. They could have seen 

anybody go into any apartment. I don’t 

know why they are saying, or thinking, 

that it was our apartment, something that, 

you know—

Wife: Right.

Samora: Then we went right to the door and 

opened the door with some smokes. 

Wife: Yeah. 
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20180983-CA 10 2021 UT App 29

Samora: Ain’t trying to hide. 

Wife: Yeah. Yes, I know, baby. 

Samora: Okay baby. 

Wife: We’ll get this figured out. 

Samora: We got the plan. You got the plan now, 

though.

¶14 The case proceeded to trial, where the State attempted to 

lay sufficient foundation for admission of the comparison 

photos. To that end, Manager testified that the surveillance 

system cameras had not been moved since the robbery, and were

in the same position when the comparison photos were taken. 

Clerk confirmed that neither the surveillance system nor the 

store itself had changed since the robbery occurred. Eventually, 

the court determined that the State had established sufficient 

foundation to admit the photos for “the very limited purpose” of 

allowing the jury to “compare” the reconstructed crime scene 

photos to the screenshots of the robbery. In its pretrial ruling, the 

court was careful to specify that it would ultimately be up to the 

jury to decide whether the comparison was effective, cautioning 

that the State would not be allowed to “present evidence on the 

ultimate issue as to whether [the] items and information 

depicted in the demonstrative photos are, in fact, [the] items and 

information reflected in the store’s . . . surveillance footage” from 

the night of the robbery. At trial, the court enforced that edict, 

and determined after presentation of the evidence that the State 

had “not crossed that line.” 

¶15 The State also presented testimony from Clerk, Manager, 

Detective, and other police officers, each of whom testified about 

the robbery as outlined above. During his testimony, Clerk noted 

that, because of the mask on the robber’s face, he had been 
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unable to definitively identify Samora in a photo lineup.6 Clerk 

nevertheless testified that he was “100 percent positive” that the 

man he followed to the gray apartment building was the same 

person who had attempted to rob the store. 

¶16 Samora defended the case chiefly on identity grounds, 

arguing that the State failed to prove that he was the robber 

depicted in the screenshots. In particular, Samora’s counsel 

questioned Clerk’s ability to effectively identify the person he 

was following because it was dark, and characterized the State 

as being “creative” for rendering the comparison photos after it 

had been unable to produce the actual surveillance video of the 

robbery. At the conclusion of the State’s case-in-chief, Samora 

moved for a directed verdict, arguing that there was insufficient 

evidence to make a “prima facie case for identification.” The 

court denied the motion, finding that there was “sufficient 

evidence from which a jury acting reasonably could convict the 

 

6. Sometime during the investigation, Clerk was presented with 

a photo lineup depicting six individuals, colloquially known as a 

“six-pack lineup,” from which he “was not able to make a 

positive identification.” After being presented with the six-pack, 

Clerk indicated that, with respect to the first photo, he was “75 

percent sure” it was the robber, and with respect to the second 

photo, he was “50 percent” confident that it depicted the robber. 

The second photo was a mugshot of Samora at the time of his 

arrest. Samora’s defense strategy included suggesting that the 

individual depicted in the first photo of the lineup was actually 

the robber, and that the police just “dropped” the search for that 

individual after some investigative phone calls came up empty. 

Detective testified that he “tried to locate” this man, even 

contacting California state and federal authorities to attempt to 

find a last known address, but he was unable to determine the 

whereabouts of the individual from the first photo. 
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20180983-CA 12 2021 UT App 29

defendant and [that] the State ha[d] established a prima facie 

case on the charged offense.” 

¶17 After deliberation, the jury found Samora guilty of 

aggravated robbery, and the court later sentenced him to prison. 

ISSUES AND STANDARDS OF REVIEW

¶18 Samora now appeals his conviction, and asks us to 

consider three main issues, as well as a motion for remand under 

rule 23B of the Utah Rules of Appellate Procedure. First, he 

asserts that the trial court erred by admitting the reconstructed 

comparison photos. Trial courts have “broad discretion to admit 

or exclude evidence,” and we will disturb an evidentiary ruling 

“only for [an] abuse of discretion.” See State v. Perea, 2013 UT 68, 

¶ 31, 322 P.3d 624 (quotation simplified). 

¶19 Second, Samora argues that the three audio clips from his 

jail phone calls should not have been admitted. Samora 

acknowledges that he did not object to these three clips at trial, 

and that therefore this challenge is not preserved. “When a party 

fails to raise and argue an issue in the trial court, it has failed to 

preserve the issue, and an appellate court will not typically reach 

that issue absent a valid exception to preservation.” State v. 

Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443. Samora invokes two of 

our preservation exceptions, and asks us to review this issue for 

both plain error and ineffective assistance of counsel. To 

“persuade an appellate court to reach [an] issue” based on the 

trial court’s plain error, the appellant “must establish that (i) an 

error exists; (ii) the error should have been obvious to the trial 

court; and (iii) the error is harmful. If any one of these 

requirements is not met, plain error is not established.” Id. 

¶¶ 19–20 (quotation simplified). And an ineffective assistance of 

counsel claim “raised for the first time on appeal presents a 

question of law, which we consider de novo.” State v. King, 2018

UT App 190, ¶ 11, 437 P.3d 425 (quotation simplified).
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¶20 Third, Samora challenges the trial court’s denial of his 

motion for directed verdict based on his contention that the 

evidence the State presented was insufficient to support a 

determination that he was the robber. “We will uphold a trial 

court’s denial of a motion for directed verdict based on a claim 

of insufficiency of the evidence if, when viewed in the light most 

favorable to the State, some evidence exists from which a 

reasonable jury could find that the elements of the crime had 

been proven beyond a reasonable doubt.” State v. Gonzalez, 2015 

UT 10, ¶ 27, 345 P.3d 1168 (quotation simplified).

¶21 Finally, Samora has filed a standalone motion with this 

court, pursuant to rule 23B of the Utah Rules of Appellate 

Procedure, asking us to remand his case for the trial court to 

make additional findings of fact relating to his ineffective 

assistance of counsel claim. “Rule 23B allows this court to 

remand a criminal case ‘to the trial court for entry of findings of 

fact, necessary for the appellate court’s determination of a claim 

of ineffective assistance of counsel.’” State v. Powell, 2020 UT App 

63, ¶ 11, 463 P.3d 705 (quoting Utah R. App. P. 23B(a)). Such a 

remand will only be granted if the movant has brought forth “a 

nonspeculative allegation of facts, not fully appearing in the 

record on appeal, which, if true, could support a determination 

that counsel was ineffective.” Utah R. App. P. 23B(a).

ANALYSIS

I. Admissibility of the Challenged Evidence

¶22 Samora’s first two challenges concern evidence that he 

believes was improperly admitted. First, Samora asserts that the 

trial court abused its discretion by admitting the comparison 

photos into evidence at trial. Second, he asserts that the court 

plainly erred by admitting, and that his counsel rendered 

ineffective assistance by failing to object to the admission of, 
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three discrete audio clips of his jail phone calls with Wife. We 

discuss each of these challenges, in turn. 

A. Comparison Photos

¶23 Samora’s challenge to the trial court’s decision to admit 

the comparison photos is rooted in rule 901 of the Utah Rules of 

Evidence. Citing that rule, he asserts that the State did not lay 

sufficient foundation to authenticate those photos. We find this 

argument unpersuasive; indeed, we commend the trial court’s 

thorough efforts to ensure the State laid the requisite foundation. 

¶24 Rule 901 requires parties to authenticate proffered 

evidence; the rule provides that one way in which parties may 

do so is by offering witness “[t]estimony that an item is what it is 

claimed to be.” Utah R. Evid. 901(a), (b)(1). For photographic 

evidence, “the general rule in Utah is that when a competent 

witness with personal knowledge of the facts represented by a 

photograph or video testifies that the photograph accurately 

reflects those facts, it is admissible.” State v. Bloomfield, 2003 UT 

App 3, ¶ 24, 63 P.3d 110 (quotation simplified); accord State v. 

Wager, 2016 UT App 97, ¶ 13, 372 P.3d 91; see also State v. Perea, 

2013 UT 68, ¶ 47, 322 P.3d 624 (stating that “there must be some 

showing that the evidence itself supports the proffered 

conclusion”).7

 

7. Samora asserts—citing State v. Perea, 2013 UT 68, 322 P.3d 

624—that the photos qualify as “demonstrative evidence,” and 

argues therefrom that they are subject to an altogether different 

analysis for admissibility. In Perea, our supreme court did indeed 

articulate different admissibility standards, under rule 901 of the 

Utah Rules of Evidence, for demonstrative versus substantive 

evidence. See id. ¶¶ 45–49. However, we agree with both parts of 

the State’s assertion that (1) the comparison photos are actually 

“substantive evidence”—indeed, the photos have independent 

(continued...)
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¶25 In this situation, the record reveals that, not only did “a 

competent witness with personal knowledge of the facts”

represented by the comparison photos testify that the 

photographs “accurately reflect[ed] those facts,” see 

Bloomfield, 2003 UT App 3, ¶ 24 (quotation simplified), but 

several witnesses testified in this regard. Most importantly, 

the State elicited testimony from Detective, who testified 

extensively—both at trial and during a pretrial hearing—about 

how the comparison photos were generated. Detective’s 

testimony indicated that the comparison photos depicted 

images of the dark-colored hoodie recovered from Samora’s 

apartment and the white shoes found on Samora’s person at 

the time of the arrest. He further explained that the clothing 

items were arranged in spots designed to replicate the 

placement of the robber’s clothing on the night of the robbery, 

and he detailed how he and the forensic examiner “placed 

something underneath the shoe” to “recreate the step and 

the walking motions” taken when the robber walked into the 

store, and “used the grout lines” in the floor to arrange the 

shoes where the robber would have been when he approached 

the counter. Detective also testified that they tried to 

 

(...continued)

probative value and were not produced merely to “illustrate a 

witness’s testimony,” see id. ¶¶ 45–46—but (2) in any event, 

“[t]he distinction between demonstrative and substantive 

evidence does not affect the outcome here.” As noted in Perea, 

“substantive evidence . . . must . . . meet a higher threshold 

showing than that required for demonstrative evidence,” so if 

the “foundational burden” for admitting substantive evidence is 

met, then the evidence is admissible. See id. ¶¶ 47, 49.

Accordingly, we proceed by applying the standard for 

admission of substantive evidence under rule 901: the proponent 

must show “that the evidence itself supports the proffered 

conclusion.” Id. ¶ 47.
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recreate “the same conditions” as the original robbery by 

taking the comparison photos “at night” to “match” the 

lighting, and by “shut[ting] down the store” to ensure there 

would not be any “foot traffic.” Detective also attested to 

maintaining the “chain of custody” over the two clothing

items. Furthermore, Manager testified, and Clerk affirmed,

that the surveillance cameras had not been moved since the 

robbery, and that they were in the same position when the 

comparison photos were taken as they were on the night of 

the robbery. 

¶26 Given all of this testimony, the court determined that the 

State had established sufficient foundation to admit the photos 

for “the very limited purpose” of allowing the jury to “compare” 

the reconstructed crime scene photos to the screenshots of the 

robbery. The court warned the State, however, that it would not 

be allowed to “present evidence on the ultimate issue as to 

whether the items and information depicted in the 

demonstrative photos are, in fact, [the] items and information 

reflected in the store’s . . . surveillance footage” from the night of 

the robbery. In the court’s view, it should be up to the jury to 

determine whether the comparison was effective. And at trial, 

the court enforced this restriction, determining after presentation 

of the evidence that the State had “not crossed that line,” and 

that Detective possessed “the proper foundation and knowledge 

to testify to these issues.”

¶27 Under these circumstances, the State laid sufficient 

foundation to support what the comparison photos were used 

for: to allow the jury to compare what the recovered hoodie and 

shoes would look like if captured on the same surveillance 

system that captured the robbery in action. In our view, the trial 

court’s actions in ensuring that proper foundation had been laid 

for these photos were thorough and appropriate. We perceive no 

abuse of discretion in the court’s handling of this matter. 
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B. Audio Clips of Jail Phone Calls

¶28 Samora next challenges the admission of the three short 

audio clips from his jailhouse phone calls with Wife. This 

challenge has three subparts: Samora first characterizes these 

clips as “confessions,” and asserts that the clips are not 

sufficiently “trustworthy” to be admitted as such; next, he claims 

that the clips were unfairly prejudicial in violation of rule 403; 

and finally, he contends that his calls to Wife were protected by 

Utah’s spousal communications privilege. 

¶29 Each of these challenges is unpreserved. Although

Samora objected to the State’s initial efforts to admit recordings 

of the jail phone calls pursuant to rule 404(b), and objected to the 

State’s efforts to admit other clips of those phone calls with Wife

pursuant to rule 801(d)(2), those other objections were sustained 

in their entirety. But Samora did not object to the State’s efforts 

to admit, pursuant to rule 801(d)(2), the three clips that were 

ultimately played for the jury. Because these challenges are 

unpreserved, Samora asks that we review them for plain error

and ineffective assistance of counsel. We first discuss Samora’s 

contention that the trial court plainly erred, and then discuss his

contention that his trial counsel rendered ineffective assistance.

1. Plain Error

¶30 To establish that the trial court plainly erred, Samora 

must show that “(i) an error exists; (ii) the error should have 

been obvious to the trial court; and (iii) the error is harmful, i.e., 

absent the error, there [was] a reasonable likelihood of a more 

favorable outcome” at trial. State v. Bond, 2015 UT 88, ¶ 15, 361 

P.3d 104 (quotation simplified). “If any one of these 

requirements is not met, plain error is not established.” State v. 

Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443 (quotation simplified). 

“For an error to be obvious to the trial court, the party arguing 

for the exception to preservation must show that the law 
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governing the error was clear, or plainly settled, at the time the 

alleged error was made.” Id. ¶ 21 (quotation simplified).

a. Trustworthiness

¶31 Samora first raises a “trustworthiness” argument with 

regard to the audio clips. He characterizes several statements in 

those clips as being “in the nature of” confessions, and asserts 

that, as confessions, the statements in the audio clips cannot be 

admitted unless they meet a “trustworthiness standard.” See

State v. Mauchley, 2003 UT 10, ¶¶ 19–20, 67 P.3d 477 (adopting a

“trustworthiness standard,” under which “it is the responsibility 

of the trial judge to determine as a matter of law whether a 

defendant’s confession is sufficiently trustworthy or reliable to 

be admitted into evidence”). Samora asserts that the trial court 

committed plain error by allowing the audio clips to come into 

evidence without first determining that they were sufficiently 

trustworthy. We see two problems with this argument. 

¶32 First, we are not persuaded that the statements Samora 

made in the audio clips qualify as the sort of “confessions” to 

which the “trustworthiness standard” applies. At the outset, we

note that there is an important distinction between a confession 

and a simple admission: “An admission is an acknowledgment 

by the accused of certain facts that tend, together with other 

facts, to establish the accused’s guilt, whereas a confession is an 

acknowledgment of guilt itself. . . . Furthermore, although every 

confession is an admission, not every admission is a confession.”

29 Am. Jur. 2d Evidence § 700 (2021) (quotation simplified).

Indeed, our supreme court affirmed a trial court’s ruling and 

adopted its reasoning in distinguishing between a confession 

and an admission: 

A confession is a voluntary statement on the part of 

the defendant, . . . which admits guilt, or in which 

he discusses the commission of the act, as well as a 

confession of the doing of the act, [and] admits 
State v. Samora

20180983-CA 19 2021 UT App 29

guilt of the surrounding circumstances. An 

admission is merely an admission on the part of 

the defendant as to some particular act, or some 

particular thing which in itself does not constitute a 

confession of guilt, but from which might be 

drawn an inference that the defendant might have 

been at the place, at least.

State v. Hymas, 131 P.2d 791, 792 (Utah 1942) (quotation 

simplified); see also id. at 792–93 (conducting its own analysis of 

the statement at issue and determining that, “[a]t the most, the 

statement could be nothing more than an admission,” and 

concluding that it had therefore not been necessary to apply the 

standard for admitting confessions); accord State v. Barbero, 442 

P.3d 224, 225 (Or. Ct. App. 2019) (“Not all statements by the 

defendant are confessions. . . . A confession is an 

acknowledgement of guilt made by a person after an offense has 

been committed. An admission is a statement made for some 

purpose other than to acknowledge guilt.” (quotation 

simplified)). For instance, in Mauchley, the defendant traveled on 

his own to the police station and “voluntarily confessed” to 

committing the crime in question. See 2003 UT 10, ¶ 6. Certainly, 

a statement given to police for the express purpose of voluntarily 

accepting responsibility for a crime qualifies as a confession. See 

29 Am. Jur. 2d Evidence § 699 (2021) (“A confession is a voluntary 

statement by the accused that the accused engaged in conduct 

that constitutes a crime. It is a direct acknowledgement of guilt

on the part of the accused, implicitly admitting all the essential 

elements necessary to establish the crime of which the accused is 

charged.” (quotation simplified)).

¶33 But the statements made by Samora to Wife during the 

jailhouse phone calls are of a different nature. In making those 

statements, Samora did not appear to acknowledge guilt for the 

robbery; rather, he was just discussing with Wife the particulars 

of his whereabouts on the evening in question. See id. § 700. His 
State v. Samora

20180983-CA 20 2021 UT App 29

references in those calls to perhaps being the person Clerk was

following may be probative statements because they are 

“admission[s] of incriminating facts” from which a factfinder 

could infer guilt, but they do “not amount[] to a confession” 

because there is no indication that those statements were made 

for the purpose of acknowledging criminal liability. See E.H. 

Schopler, Annotation, Corroboration of Extrajudicial Confession or 

Admission, 45 A.L.R.2d 1316, § 5[a] (originally published in 1956).

Admissions, just like other statements that do not qualify as

confessions, may be admitted into evidence pursuant to rule 

801(d)(2) of the Utah Rules of Evidence as statements of a partyopponent, even without a specialized showing of 

trustworthiness, provided that the requirements of that rule are 

otherwise met. See generally 29 Am. Jur. 2d Evidence § 757 (2021)

(noting that, “in both civil and criminal cases, . . . an admission 

or statement of a party is not considered hearsay and may be 

used against the party” and that “an admission of a party 

opponent need only traverse the low hurdles of relevancy and 

materiality to survive an objection to its admission into 

evidence” (quotation simplified)). That was the basis upon 

which the trial court admitted the audio clips, and Samora 

makes no meaningful effort to argue that the court misapplied 

rule 801(d)(2).8

 

8. Samora does appear to cursorily argue that portions of the 

first clip are inconsistent with rule 801(d)(2) of the Utah Rules of 

Evidence, but to the extent he attempts to make such an 

argument, it is inadequately briefed. See State v. Thomas, 961 P.2d 

299, 304 (Utah 1998) (“It is well established that a reviewing 

court will not address arguments that are not adequately 

briefed.”); accord State v. Thornock, 2020 UT App 138, ¶ 36, 475 

P.3d 475. Samora only mentions rule 801(d)(2) with regard to the 

first audio clip, and even then he simply makes the bare 

assertion that one of his statements in the clip “is not an adoptive 

(continued...)
State v. Samora

20180983-CA 21 2021 UT App 29

¶34 Second, even if we were to assume, for purposes of the 

discussion, that Samora’s statements were confessions subject to 

the trustworthiness standard, Samora has not carried his burden 

of demonstrating that the trial court plainly erred in assuming 

the statements to be sufficiently trustworthy. After all, Samora 

made the statements voluntarily during casual conversation

with Wife, without any hint of coercion, all while knowing that 

he was being recorded, and neither the statements themselves 

nor the context in which they were made contains any 

suggestion that his statements were not trustworthy. See

Mauchley, 2003 UT 10, ¶ 52 (stating that “evidence as to the 

spontaneity of the statement” and “the absence of deception, 

trick, threats, or promises to obtain the statement” has 

“applicability in determining the trustworthiness of 

confessions”). Indeed, the statements demonstrate a familiarity 

on Samora’s part with the crime scene and some features of the 

robbery itself, a factor that our supreme court has identified as a 

hallmark of trustworthiness. See id. ¶ 54 (stating that “[o]ne of 

the ways a confession may” be considered trustworthy is when 

 

(...continued)

admission pursuant to Utah R. Evid. 801(d)(2),” instead 

characterizing it as “a denial.” But Samora makes no further 

attempt to explain why this matters; indeed, simply because he 

was the one who made the statement and the State offered it into 

evidence against him at trial, the statement is eligible for 

admission under rule 801(d)(2). See Utah R. Evid. 801(d)(2)(A) 

(providing that out-of-court statements made by a litigant—

which might otherwise be considered hearsay—are admissible if 

offered against that party at trial). And for us to address an 

argument, that “argument must explain, with reasoned analysis 

supported by citations to legal authority and the record, why the 

party should prevail on appeal.” Utah R. App. P. 24(a)(8). 

Samora has not done so here, and accordingly we decline to 

discuss the issue further.
State v. Samora

20180983-CA 22 2021 UT App 29

it is “bolstered by independent evidence” showing that “the 

individual has specific personal knowledge about the crime”). 

And in this case, there is also independent corroboration of 

Samora’s involvement in the robbery, including the screenshots, 

the comparison photos, and Clerk’s testimony.

¶35 Accordingly, we find no error at all, let alone plain error, 

in the trial court’s admission of the audio clips without first 

making an express finding of trustworthiness. 

b. Rule 403

¶36 Samora next asserts that the trial court plainly erred by 

not ruling sua sponte that the remaining three phone clips 

violated rule 403 of the Utah Rules of Evidence. Under that rule, 

evidence may be excluded “if its probative value is substantially 

outweighed by a danger of . . . unfair prejudice, confusing the 

issues, misleading the jury, undue delay, wasting time, or 

needlessly presenting cumulative evidence.” Utah R. Evid. 403.

“The critical question in a rule 403 analysis for unfair prejudice is 

whether certain testimony is so prejudicial that the jury will be 

unable to fairly weigh the evidence.” State v. Jones, 2015 UT 19,

¶ 30, 345 P.3d 1195 (quotation simplified). Importantly, 

“evidence is not [made] unfairly prejudicial because it tends to 

prove guilt, but [rather] because it tends to encourage the jury to 

find guilt from improper reasoning.” Id. (quotation simplified); 

see also State v. Wilson, 2020 UT App 30, ¶ 30, 461 P.3d 1124 

(noting that “all probative evidence is prejudicial to the party 

against whom it is introduced,” but that “such prejudice is not 

necessarily unfair” (quotation simplified)). Improper reasoning, 

in this context, “commonly but not necessarily” involves a nonevidentiary “emotional” component, “such as bias, sympathy, 

hatred, contempt, retribution or horror.” State v. Rodriguez, 2012 

UT App 81, ¶ 4, 274 P.3d 1012 (quotation simplified); accord State 

v. Bermejo, 2020 UT App 142, ¶ 27, 476 P.3d 148, petition for cert. 

filed, Dec. 22, 2020 (No. 20200933).
State v. Samora

20180983-CA 23 2021 UT App 29

¶37 In this case, however, the audio clips are not unfairly 

prejudicial, and certainly not obviously so. The clips have high 

probative value because they contain statements by Samora that 

indicate that he might have been the man Clerk followed. The 

court did determine, in connection with the State’s initial effort 

to admit the jailhouse phone calls pursuant to rule 404(b), that all 

of those calls together were “inadmissible under rule 403.” But 

that pronouncement must be viewed in the context of the rule 

404(b) motion. And at the hearing during which the court 

considered the State’s second motion to admit the phone calls as 

conditionally relevant statements of a party-opponent pursuant 

to rules 104(b) and 801(d)(2), Samora objected to some portions 

of those clips, which objection the court sustained in part 

“because [the statements] may be misleading or confusing to the 

jury.” But no such objection was lodged in connection with the 

State’s second motion with regard to the three clips that were 

ultimately played for the jury. Although the three clips are 

certainly prejudicial to Samora’s assertion that he was not the 

robber, we perceive no reason why they would be unfairly 

prejudicial, much less obviously so; the inference to which they 

lead—that Samora might be the robber—is one based on 

evidence, and not on some improper emotional basis.9 The trial 

court did not commit any error, let alone an obvious one, by not 

sua sponte excluding the three audio clips pursuant to rule 403. 

 

9. In addition to asserting unfair prejudice, Samora objects to at 

least one of the clips as being “confusing” and “misleading” due 

to potential ambiguity about whether Samora was actually 

admitting anything. Whether his statements should be construed 

as an admission of his involvement is a question for the 

factfinder. We perceive nothing unusually confusing or 

misleading about that interpretive question; indeed, in our view, 

a jury could have reasonably concluded, in context, that Samora 

was acknowledging involvement in the robbery. 
State v. Samora

20180983-CA 24 2021 UT App 29

c. Spousal Communications Privilege

¶38 Samora next argues that the trial court plainly erred by 

not sua sponte excluding certain portions of the clips because 

they were protected by Samora’s spousal communications 

privilege. In Utah, the spousal communications privilege allows 

a defendant “to prevent his or her spouse . . . from testifying as 

to any confidential communication made by the individual to 

the spouse during their marriage; and to prevent another 

person from disclosing any such confidential communication.” 

Utah R. Evid. 502(c); accord Utah Const. art. I, § 12; Utah 

Code Ann. § 78B-1-137(1)(a) (LexisNexis 2017). “Confidential 

communication” is defined as “a communication[] made 

privately by any person to his or her spouse; and not intended 

for disclosure to any other person.” Utah R. Evid. 502(a)(1). 

¶39 Thus, whether the spousal communications privilege 

protects Samora’s conversations with Wife hinges on whether 

the conversations can fairly be considered to have been “made 

privately . . . and not intended for disclosure to any other 

person.” See id. (emphasis added). Although Utah courts have 

not yet squarely considered whether this privilege applies to 

recorded phone calls between a prisoner and his or her spouse,10

 

10. Samora asserts that Utah courts have considered this issue, at 

least implicitly, and directs our attention to Zaragoza v. State, 

2017 UT App 215, 407 P.3d 1122. He suggests that Zaragoza 

stands for the proposition that “most courts apply the 

‘forfeiture-by-wrongdoing’ doctrine to allow otherwise 

privileged calls to be introduced notwithstanding a recognition 

of the marital privilege.” But Samora overstates the applicability 

of that case to the situation at hand. In Zaragoza, our only 

discussion of the spousal communications privilege was to 

describe a lower court ruling—one that was not at issue on 

appeal—in which the court admitted two out-of-court 

(continued...)
State v. Samora

20180983-CA 25 2021 UT App 29

most other courts to consider the question have concluded that 

the privilege does not apply to jailhouse phone calls, particularly 

where, as here, inmates are made aware before placing calls that 

their conversations are being recorded. See, e.g., United States v. 

Madoch, 149 F.3d 596, 602 (7th Cir. 1998) (holding that the trial 

court did not err in admitting tape-recorded conversations 

between defendant and her husband while her husband was in 

jail, “because the marital communications privilege protects only 

communications made in confidence” and it is “well-known” 

that “communications made from jail” are monitored and “likely 

to be overheard by others” (quotation simplified)); United States 

v. Tartaglione, 228 F. Supp. 3d 402, 407–08 (E.D. Pa. 2017) (“[T]he

law is clear that, where one spouse is imprisoned, 

communications between the married couple on prison 

telephones are not made in confidence.”); Bloom v. Toliver, No. 

12-CV-169-JED-FHM, 2015 WL 5344360, at *9 (N.D. Okla. Sept. 

14, 2015) (holding that the marital communications privilege did 

not apply to a phone call between a detention officer and his 

wife because, among other reasons, “all calls at the [j]ail are 

routinely recorded, and [the officer] was on duty during the 

lengthy call to his wife, both of which counter any argument of 

an expectation of privacy during his communication”); Dixson v. 

State, 865 N.E.2d 704, 713–14 (Ind. Ct. App. 2007) (holding that, 

where there is evidence that “inmates are notified that calls are 

recorded and/or monitored by means of an automated message 

 

(...continued)

statements by the defendant’s wife to police on the basis that the 

defendant “had intentionally made [his] [w]ife unavailable to 

testify through his own wrongful actions, and therefore the 

forfeiture-by-wrongdoing doctrine applied.” See id. ¶ 7. Other 

than that cursory description of the basis of a lower court’s 

evidentiary ruling, we made no mention in Zaragoza of the 

spousal communications privilege, and we offered no opinion 

on its applicability to jailhouse phone calls.
State v. Samora

20180983-CA 26 2021 UT App 29

played at the beginning of each call,” it is within the trial court’s 

discretion to conclude that an inmate’s “conversation with his 

wife was made in the presence of a third party, i.e., the 

[government] and its agents”). But see State v. Modica, 186 P.3d 

1062, 1064 (Wash. 2008) (en banc) (opining that “[s]igns or 

automated recordings that calls may be recorded or monitored 

do not, in themselves, defeat a reasonable expectation of 

privacy,” and suggesting that if a prisoner’s phone calls had 

been “to his lawyer or otherwise privileged,” the calls might 

have been considered private to bar their admissibility in a

criminal case). And this makes sense because, after all, “[t]he 

presence of a device monitoring and recording all phone calls 

made in prison is the functional equivalent of a third party 

listening to the conversations,” see Tartaglione, 228 F. Supp. 3d at 

408, and the privilege applies only to confidential

communications between spouses, see Utah R. Evid. 502(c).11

¶40 But in any event, this question “is an interesting and 

multifaceted one that has not yet been answered by Utah’s 

appellate courts,” meaning that “there is no settled appellate law 

governing the question.” See State v. Oliver, 2018 UT App 101, 

¶ 43, 427 P.3d 495 (emphasis added) (quotation simplified). To 

the extent there is any consensus in the case law on this issue, it 

 

11. Samora asserts that, “irrespective of his statement that the 

phones were recorded, the marital privilege would apply in any 

event because [Wife]’s statements were made with an 

understanding that they were confidential.” But as noted, most 

courts have held that jailhouse phone calls cannot reasonably be 

considered confidential, even by the spouse who is not 

incarcerated, because “communications made from jail are likely 

to be overheard by others, and, thus, it is unreasonable [for the 

non-imprisoned spouse] to intend such a communication to be 

confidential.” See United States v. Madoch, 149 F.3d 596, 602 (7th 

Cir. 1998) (quotation simplified). 
State v. Samora

20180983-CA 27 2021 UT App 29

appears that any such consensus runs in the State’s direction. 

Under these circumstances, Samora cannot “show that the law 

governing the error was clear or plainly settled” in his favor 

such that it would have been “obvious to the trial court” that the 

spousal communications privilege barred admission of the audio 

clips. See id. (quotation simplified); see also State v. Johnson, 2017 

UT 76, ¶ 21, 416 P.3d 443. Accordingly, the court did not commit 

plain error by declining to sua sponte exclude the audio clips 

pursuant to the spousal communications privilege. 

¶41 Thus, for all of these reasons, Samora has not carried his 

burden of showing that the trial court plainly erred by not sua 

sponte excluding the three audio clips from evidence at trial, 

either under a trustworthiness standard, rule 403, or the spousal 

communications privilege. 

2. Ineffective Assistance of Counsel

¶42 Samora also argues that his trial counsel rendered 

constitutionally ineffective assistance by failing to object to 

admission of the phone calls under the same three

evidentiary rules we have just discussed. See supra ¶¶ 31–41. To 

establish that his counsel was constitutionally ineffective, 

Samora must show that (1) his “counsel’s performance was 

deficient,” and (2) this “deficient performance prejudiced the 

defense” by giving rise to “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, 694 (1984). To determine whether counsel’s 

performance was deficient under the first part of the test, we 

apply “the deficiency standard announced in Strickland” and ask 

whether counsel’s actions “fell below an objective standard of 

reasonableness.” See State v. Scott, 2020 UT 13, ¶ 31, 462 P.3d 350 

(quotation simplified). In the context of this case, it is 

important to note that “[f]ailure to raise futile objections does not 

constitute ineffective assistance of counsel.” State v. Kelley, 2000 
State v. Samora

20180983-CA 28 2021 UT App 29

UT 41, ¶ 26, 1 P.3d 546; accord State v. Newton, 2020 UT 24, ¶ 24, 

466 P.3d 135. 

¶43 Samora’s trial counsel did not perform deficiently by 

failing to object to admission of the three audio clips played 

for the jury at trial. For the reasons already discussed, see 

supra ¶¶ 31–37, neither rule 403 nor any “trustworthiness 

standard” requires exclusion of the audio clips, and any attempt 

counsel might have made to object to their admission 

pursuant to those rules would have been futile. See Kelley, 2000 

UT 41, ¶ 26. 

¶44 Objecting to admission of the audio clips pursuant to the 

spousal communications privilege may have been unsuccessful, 

given the absence of Utah case law on the question and given the 

fact that the weight of case law from other jurisdictions seems to 

favor the State’s position. But even if an objection on this basis 

carried some chance of success, we do not think it was 

objectively unreasonable, under the circumstances, for counsel to 

decide not to make it. Although we recognize, as our supreme 

court did in State v. Silva, 2019 UT 36, 456 P.3d 718, that 

situations exist in which an attorney performs deficiently by 

failing to “raise an argument not supported by existing legal 

precedent,” id. ¶¶ 19–20, it is not the case that attorneys must 

raise every conceivable objection in order to render 

constitutionally effective assistance. The United States Supreme 

Court has “never required defense counsel to pursue every claim 

or defense, regardless of its merit, viability, or realistic chance for

success.” See Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). 

Indeed, in deciding whether to lodge objections, attorneys are 

entitled to “pick [their] battles,” and do not have “a Sixth 

Amendment obligation” to object to everything. See State v. Ray, 

2020 UT 12, ¶ 32, 469 P.3d 871; see also State v. Hart, 2020 UT App 

25, ¶ 29, 460 P.3d 604 (“[J]ust because counsel can make an 

objection does not mean counsel must make an objection to avoid 

rendering ineffective assistance. Legal objections are an 
State v. Samora

20180983-CA 29 2021 UT App 29

inherently strategic business.”). “We must view a decision to not 

object in context and determine whether . . . failure to do so was 

objectively unreasonable—i.e., a battle that competent counsel 

would have fought.” See Ray, 2020 UT 12, ¶ 32.

¶45 In this situation, with out-of-state case law weighing 

largely against Samora’s position, and with other pressing 

matters also of concern in the fast-paced context of the trial, we 

do not view it as objectively unreasonable for counsel to have 

opted not to lodge an objection to the three audio clips

pursuant to the spousal communications privilege. In similar 

situations, our supreme court has determined that counsel did

not perform deficiently by failing to object. See, e.g., Myers v. 

State, 2004 UT 31, ¶¶ 22–23, 94 P.3d 211 (holding that, where 

“there were no cases on point in Utah, and other jurisdictions 

were split on the issue,” it was “likely that counsel made a 

tactical decision not to pursue a . . . challenge” on that basis, 

which decision “could not be considered ineffective assistance”

(quotation simplified)). Samora’s trial counsel successfully 

resisted prosecutorial attempts to admit all of Samora’s jailhouse 

phone calls pursuant to rule 404(b), and then successfully fought 

off a second prosecutorial attempt to admit several additional 

more targeted clips pursuant to rule 801(d)(2). By all 

appearances, counsel thoroughly examined the issues 

surrounding admissibility of the jailhouse phone calls, and 

concluded that she had no “legal grounds to object” to the three 

clips that were ultimately admitted. Based on our review of the 

record, and our understanding of applicable case law, counsel 

did not act unreasonably in reaching this conclusion, and did not 

perform deficiently by failing to lodge an objection to the final 

three clips. 

¶46 In the end, we reject all of Samora’s arguments related to 

the admission of the comparison photos and the three audio 

clips of his jailhouse phone calls. 
State v. Samora

20180983-CA 30 2021 UT App 29

II. Sufficiency of the Evidence

¶47 Samora next contends that the trial court erred when it 

denied his motion for directed verdict because, according to him, 

the evidence presented to the jury was insufficient to prove that 

he was the robber. When considering a motion for directed 

verdict, trial courts are “not free to weigh the evidence and thus 

invade the province of the jury, whose prerogative it is to judge 

the facts.” State v. Montoya, 2004 UT 5, ¶ 32, 84 P.3d 1183

(quotation simplified). “Rather, the court’s role is to determine 

whether the state has produced believable evidence on each 

element of the crime from which a jury, acting reasonably, could 

convict the defendant.” Id. (quotation simplified). “A trial court 

is justified in granting a directed verdict only if, examining all 

evidence in a light most favorable to the non-moving party, 

there is no competent evidence that would support a verdict in 

the non-moving party’s favor.” State v. Garcia, 2017 UT 53, ¶ 62, 

424 P.3d 171 (quotation simplified). And if a trial court denies a 

motion for directed verdict, we may reverse only if we are 

unable to conclude that, “viewed in the light most favorable to 

the State, some evidence exists from which a reasonable jury 

could find that the elements of the crime had been proven 

beyond a reasonable doubt.” State v. Gonzalez, 2015 UT 10, ¶ 27, 

345 P.3d 1168 (emphasis added) (quotation simplified).

¶48 In reviewing a denial of a directed verdict motion based 

on sufficiency of the evidence, we begin by listing the evidence 

that is pertinent to “the central issue that was before the jury.” 

See Montoya, 2004 UT 5, ¶ 31. Both at trial, and in Samora’s 

motion for directed verdict, the primary issue was the identity of 

the robber. The State’s “identity” evidence included the 

following: (1) the six screenshots of the surveillance system 

footage from the night of the robbery, depicting a masked man 

with a horseshoe-shaped receding hairline, who was wielding a 

knife and wearing a dark-colored hoodie, dark shorts, and white 

shoes with black laces tied in a crisscross pattern; (2) a 
State v. Samora

20180983-CA 31 2021 UT App 29

photograph of Samora when he was arrested, which showed 

that he had a horseshoe-shaped receding hairline, and that he

was wearing black shorts and white shoes with small red stripes 

on the sides and black shoelaces laced in a distinctive crisscross 

pattern; (3) a photograph of the dark-colored hoodie recovered 

from Samora’s apartment; (4) a photograph of the kitchen knife 

recovered from his apartment and testimony from Detective 

about where it was found in the apartment; (5) additional 

testimony from Detective about his search of the apartment and 

how he came to find the knife and hoodie; (6) the comparison 

photos showing what the recovered dark-colored hoodie and the 

shoes looked like when photographed by the store’s surveillance 

system; (7) testimony from Clerk, who described what the 

robber was wearing, and how Clerk followed the robber and

witnessed him going into the front door of an apartment

building that turned out to be Samora’s residence; (8) Clerk’s 

statement that he was “100 percent positive” that the man he 

followed to the apartment building was “the same person” who 

tried to rob the store; and finally, (9) Samora’s own statements in 

the jailhouse phone calls, in which he stated that he did not “take 

anything” from the store, that Clerk “followed me home,” and 

that Clerk “had to be real close to me to see me turn into the 

apartment.” Samora attempts to downplay all of this evidence, 

claiming that it “was all speculative secondary evidence.” That

assertion is demonstrably incorrect—indeed, Clerk’s firsthand 

observations in particular are neither secondary nor speculative. 

But even if the State’s evidence could be considered “largely 

circumstantial,” our supreme court has stated that, “if there is 

any evidence, however slight or circumstantial, which tends to 

show guilt of the crime charged or any of its degrees, it is the 

trial court’s duty to submit the case to the jury.” Id. ¶ 33 

(quotation simplified). 

¶49 This is not a case in which there was “no competent 

evidence that would support a verdict” of guilt. See Garcia, 2017 

UT 53, ¶ 62 (quotation simplified). To the contrary, the State 
State v. Samora

20180983-CA 32 2021 UT App 29

presented evidence that was “believable,” even if some of it was 

circumstantial and required inferences on the part of the 

factfinder; in such a scenario it was not for the trial court to 

“invade the province of the jury, whose prerogative it is to judge 

the facts.” See Montoya, 2004 UT 5, ¶ 32 (quotation simplified). 

On the record before us, there was plenty of evidence from 

which a reasonable jury could have made a finding, beyond a 

reasonable doubt, that Samora was the robber. Accordingly, 

Samora cannot meet his burden of demonstrating that the court

erred in denying his motion for directed verdict.

III. Rule 23B Motion

¶50 Finally, we discuss Samora’s motion, filed with this court 

pursuant to rule 23B of the Utah Rules of Appellate Procedure, 

in which he asks us to remand the case for further factfinding

relating to his ineffective assistance of counsel claim. Under rule 

23B, “[a] party to an appeal in a criminal case may move the 

court to remand the case to the trial court for entry of findings of 

fact, necessary for the appellate court’s determination of a claim 

of ineffective assistance of counsel.” Utah R. App. P. 23B(a). We 

apply a “four-part test to evaluate rule 23B motions”: (1) the 

motion must allege facts that are not already in the record; (2) 

the alleged facts must not be “speculative,” meaning that the 

movant must attach to the motion evidence supporting the 

alleged facts, often in the form of affidavits “submit[ting] specific 

facts and details that relate to specific relevant occurrences”; (3) 

the alleged facts must be able to support a determination that 

counsel acted deficiently; and (4) the alleged facts must be able 

to support a determination that the defendant was prejudiced by 

counsel’s deficient performance. See State v. Griffin, 2015 UT 18, 

¶¶ 18–21, 441 P.3d 1166; accord Utah R. App. P. 23B.

¶51 In his rule 23B motion, Samora asserts that trial counsel 

unreasonably neglected to bring two facts to the court’s attention 

during trial: (a) that he has several tattoos on his hands, whereas 
State v. Samora

20180983-CA 33 2021 UT App 29

no tattoos can be seen on the robber’s hands in the screenshots; 

and (b) that in the screenshots the robber appears to be wearing 

a wedding ring, but “no ring [was] taken from [Samora] at the 

time he was booked” following his arrest. Samora’s motion was 

accompanied by affidavits and photographs demonstrating that 

he had tattoos on his hands at the time of trial, and that he was 

not wearing a wedding ring when he was booked into jail on the 

night of the robbery. These facts are not found anywhere else in 

the record, and are not “speculative”; therefore, Samora has 

satisfied the first two elements of the four-part test. See Griffin, 

2015 UT 18, ¶¶ 18–19.

¶52 But we agree with the State that, on the rule 23B record 

presented here, Samora cannot satisfy the other two elements of 

the test. With regard to the wedding ring issue, Samora’s 

evidence demonstrates neither deficient performance nor 

prejudice. As the State points out, a ring is easily and quickly 

removable, and Samora had at least several minutes in his 

apartment before officers arrived. Hence, the fact that he was not 

wearing a ring when he was booked into jail has minimal

probative value, given a ring’s easily removable nature. Thus, 

we cannot say that counsel acted unreasonably by not bringing 

this fact to the court’s attention, and we do not perceive a 

reasonable probability of a different outcome even if she had. See 

id. ¶¶ 20–21.

¶53 We reach a similar conclusion with regard to the tattoos. 

According to the affidavit submitted with the rule 23B motion, 

Samora had tattoos at the time of trial. But neither that affidavit, 

nor any other material submitted with the rule 23B motion, 

contains any evidence that Samora had any tattoos on his hands 

at the time of the robbery. As the State points out, the fact that 

Samora had tattoos on his hands is a fact that attains appreciable

probative value only if he had them on the night of the robbery. 

Samora’s trial took place some fourteen months after the 

robbery, and the proffer Samora submitted with his motion 
State v. Samora

20180983-CA 34 2021 UT App 29

contains no information about whether he had tattoos on his 

hands at the time of the robbery, and does not rule out the 

possibility that he acquired them during the fourteen-month 

period between the robbery and the trial. The fact that Samora 

had tattoos at the time of trial, but not necessarily at the time of 

the robbery, is not a fact of great assistance to Samora, and an 

attorney would be well within the bounds of reasonability to 

decline to raise that issue during trial. See id.

¶54 Samora attempts to cure the deficiencies in his rule 23B 

proffer by submitting an additional affidavit with the reply brief

he filed in support of his rule 23B motion. But that action comes 

too late, and does not give the State an opportunity to respond. 

Rule 23, which “governs the form of motions” submitted to 

Utah’s appellate courts, see id. ¶ 13, dictates that “[t]he moving 

party may file a reply only to answer new matter raised in the 

response,” Utah R. App. P. 23(c). And Rule 23B itself requires 

that “[t]he motion must include or be accompanied by affidavits 

alleging facts not fully appearing in the record.” Id. R. 23B(b) 

(emphasis added). In addition, our supreme court has long held 

that new issues, arguments, or evidence raised for the first time 

in a reply brief will not be considered. See Brown v. Glover, 2000 

UT 89, ¶ 23, 16 P.3d 540 (stating that “issues raised by an 

appellant in the reply brief that were not presented in the 

opening brief are considered waived and will not be considered 

by the appellate court” in order “to prevent the resulting 

unfairness to the respondent if an argument or issue was first 

raised in the reply brief and the respondent had no opportunity 

to respond”). And we have previously applied this principle in 

the context of rule 23B motions. See, e.g., State v. Asta, 2018 UT 

App 220, ¶ 16 n.1, 437 P.3d 664 (refusing to allow a defendant to 

use rule 23B to raise an ineffective assistance claim, by separate 

motion, that was not raised in the opening brief); State v. Bryant, 

2012 UT App 264, ¶ 24 n.5, 290 P.3d 33 (refusing to consider a 

request, raised for the first time in a reply brief on appeal, that 

we remand a case pursuant to rule 23B). Accordingly, we hold 
State v. Samora

20180983-CA 35 2021 UT App 29

that Samora may not present an entirely new affidavit with a 

reply brief in support of his rule 23B motion. Allowing Samora 

to do so would run counter to the text of rules 23 and 23B, as 

well as our long-standing rules regarding the content and 

purpose of reply briefs. 

¶55 Samora protests that the matter raised in the reply-brief 

affidavit is not a “new” matter, and was placed in the record 

simply to counter the arguments made by the State in its 

response brief. We disagree. A respondent who, in its response 

brief, identifies evidentiary gaps in the movant’s presentation 

does not thereby open the door to the wholesale presentation of 

entirely new evidence in connection with a reply brief. See State 

v. Kruger, 2000 UT 60, ¶¶ 20–21, 6 P.3d 1116 (holding that the 

State “point[ing] out in a footnote that [the defendant] had not 

raised [an] issue in the trial court or in his opening brief on 

appeal . . . did not constitute a ‘new matter’ entitling [the 

defendant] to brief the issue in his reply brief”). Under the 

circumstances presented here, Samora’s new affidavit submitted 

with his reply brief came too late, and will not be considered. 

¶56 Without that affidavit, Samora cannot satisfy his rule 23B 

burden. Trial counsel did not act unreasonably by failing to 

bring to the court’s attention the fact that Samora had tattoos on 

his hands at the time of trial, and we do not perceive a reasonable 

probability of a different trial outcome even if she had. 

¶57 For all of these reasons, we deny Samora’s rule 23B 

motion. 

CONCLUSION

¶58 The trial court did not err in admitting the comparison 

photos into evidence. We perceive neither plain error nor 

ineffective assistance of counsel regarding the admission of the 

three audio clips from Samora’s jailhouse phone calls with Wife. 
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20180983-CA 36 2021 UT App 29

The court did not err in denying Samora’s motion for directed 

verdict regarding identity. And we find no merit in his rule 23B 

motion. Accordingly, we affirm Samora’s conviction.