This opinion is subject to revision before final

publication in the Pacific Reporter

2015 UT 45

IN THE

SUPREME COURT OF THE STATE OF UTAH

THE STATE OF UTAH,

Appellee, 

v.

CODY ALAN REECE,

Appellant.

No. 20120883

Filed April 14, 2015

Third District, West Jordan

The Honorable Bruce C. Lubeck

No. 101402231

Attorneys:

Lisa J. Remal, Tawni Hanseen, Brock Van De Kamp, Lori J. Seppi, 

Salt Lake City, for appellant

Sean D. Reyes, Att‘y Gen., Christopher D. Ballard, Asst. Att‘y Gen., 

for appellee

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which 

ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM, JUSTICE PARRISH, and 

JUDGE ORME joined.

JUSTICE NEHRING did not participate herein due to his retirement; 

COURT OF APPEALS JUDGE GREGORY K. ORME sat.

JUSTICE DENO G. HIMONAS became a member of the Court on 

February 13, 2015, after oral argument in this matter, and 

accordingly did not participate.

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶1 Cody Reece was convicted of aggravated murder, 

aggravated burglary, possession of a weapon by a restricted person, 

and obstruction of justice. He argues that we must vacate his 
STATE v. REECE

Opinion of the Court

2

convictions because the trial court erred by (1) denying his request 

for a variety of lesser-included-offense jury instructions,

(2) preventing him from asking twelve questions during voir dire,

(3) refusing to exclude evidence that he was arrested with a stolen 

rifle in his car one month after the murder, and (4) refusing to sever 

the weapons offense from the other charges. 

¶2 We affirm Mr. Reece‘s convictions. First, although the court 

erred in denying Mr. Reece‘s request for lesser-included-offense 

instructions on several variants of unintentional homicide, the error 

was harmless due to the overwhelming evidence that Mr. Reece

committed aggravated murder. Second, the court‘s limits on voir 

dire questioning were not improper—Mr. Reece was allowed to ask 

almost two hundred questions from his proposed juror 

questionnaire, and the court also permitted unlimited individual 

follow-up questioning with each prospective juror, so Mr. Reece had 

ample opportunity to evaluate each juror for potential biases. Third, 

the stolen-rifle evidence was properly admitted because it was 

relevant to the genuine noncharacter purpose of linking Mr. Reece to 

the murder weapon, and the evidence was unlikely to improperly 

affect the jurors‘ decision in light of the significant criminal conduct 

Mr. Reece admitted to in his trial testimony. Finally, the court‘s 

refusal to sever the weapons charge was not an abuse of discretion, 

because the jury never heard any evidence that Mr. Reece was a 

convicted felon.

¶3 Mr. Reece also challenges his sentence, arguing that the 

noncapital-aggravated-murder sentencing statute is 

unconstitutional. And even if it is not, he maintains that the court 

abused its discretion when it imposed a sentence of life without 

parole (LWOP) because it erroneously interpreted the sentencing 

statute as establishing a presumptive LWOP sentence. We conclude 

that the sentencing statute is constitutional for reasons we recently 

discussed in State v. Perea.

1 But because the record is unclear as to 

how the court‘s incorrect reading of the statute influenced its 

decision to impose an LWOP sentence, we remand for the court to 

determine whether its erroneous interpretation of the statute affected 

its sentencing decision. If the court concludes that it did, Mr. Reece is 

entitled to a new sentencing hearing. 

1 2013 UT 68, 322 P.3d 624.
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Opinion of the Court

3

Background

¶4 The victim‘s husband returned home from work on the 

evening of July 13, 2010, to find his wife lying dead on the couch in 

their front room. She had a gunshot wound in her forehead and 

there was a bullet hole in the couch next to her body. The victim‘s 

face had been beaten with a hard object, and she had ―deep gouges‖ 

on the back of her hands, most likely from attempting to shield her 

face during the attack. Police recovered a 9 mm shell casing, two 

slugs, and a broken piece of plastic, which they later matched with 

the guide rod used in a Beretta handgun. There was no sign of forced 

entry, no missing valuables, and no evidence of a struggle elsewhere 

in the home. Investigators determined that the victim was likely 

killed right where she was found on the couch by a bullet fired at a 

downward trajectory about one foot away from her head. Police 

never recovered the murder weapon.

¶5 That same evening, after several days of heavy drug use, 

Cody Reece drove to the victim‘s neighborhood in Sandy, Utah, to 

steal mail. Around 6:30 p.m., he took a brown package from a home 

located about one-half mile west of the victim‘s. Fifteen minutes 

later, witnesses saw Mr. Reece speeding through a construction site 

on 700 East in a black Mazda. Mr. Reece collided with another 

vehicle and drove off, eventually abandoning the Mazda in a 

neighborhood a mile north of the accident. He then walked through 

the neighborhood and knocked on several doors, asking for a glass 

of water and to use a phone. At one of the homes, he stole a money 

order out of the mailbox when the homeowner left the front door to 

retrieve a phone for Mr. Reece to use. He entered another home 

through the back door without permission, punched one of its 

occupants several times, and then fled through the front door. 

Eventually, several neighbors tackled Mr. Reece and restrained him 

until police arrived. Mr. Reece was arrested and jailed for assault 

and burglary.

¶6 Police began to suspect that Mr. Reece was involved in the 

victim‘s death, and three days after his arrest, they obtained a search 

warrant for his clothing. Investigators found a blood ―stain on the 

bottom right-hand side‖ of Mr. Reece‘s shirt ―as well as some 

droplets and a smear.‖ There were also ―two little droplets or spots‖ 

on the ―back side of the shirt above the right shoulder.‖ DNA testing 

revealed that the first stain contained a mixture of DNA from which 

neither Mr. Reece nor the victim could be excluded as contributors. 

The second stain matched the victim‘s DNA.
STATE v. REECE

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4

¶7 Police interviewed Mr. Reece on July 21, and he claimed that 

he could not remember much of what happened the day of the 

murder because he had been drinking heavily and using Xanax. He 

said he remembered getting into a car accident, running away 

because he thought his car had been hit intentionally, and being 

arrested. But he claimed not to remember entering any homes in the 

victim‘s neighborhood. 

¶8 While in jail, Mr. Reece called his mother several times 

asking for help posting bail. When his mother asked him why he 

was in jail, he explained that his memory was ―fuzzy,‖ but he 

remembered things he could not talk about on the phone. According 

to Mr. Reece‘s cellmate (Cellmate), Mr. Reece told him that he 

entered the victim‘s home because as ―he was driving by [the] 

house,‖ he saw ―the garage door open[]‖ and ―didn‘t see any cars,‖ 

so he believed no one was home. But once Mr. Reece was inside, ―a 

lady came up and grabbed‖ him, ―he grabbed his gun, turned 

around . . . and the gun went off by accident.‖ Mr. Reece eventually 

posted bail and was released. 

¶9 Once he was out of jail, Mr. Reece visited a friend (Friend) 

who, unbeknownst to Mr. Reece, was a paid confidential informant. 

She told investigators that Mr. Reece asked her for money and said 

he felt like he was going to go to prison for a long time if he did not 

get out of town. According to Friend, Mr. Reece said that he 

―probably shot a lady‖ and that he was having flashbacks of running 

through a restaurant with blood on his clothes and throwing his 

clothes and a gun into a dumpster. Friend also claimed that she was 

with Mr. Reece the day before the murder and saw him cleaning a 

9 mm Beretta handgun.

¶10 Police arrested Mr. Reece again on August 10 based on a 

report that he was stealing license plates. They found a stolen assault 

rifle in his car, which they traced to a theft in Park City. According to 

the rifle‘s owner, the rifle and a 9 mm Beretta handgun were both in 

his truck the day the rifle was stolen in January 2010.

¶11 The State charged Mr. Reece with aggravated murder, 

aggravated burglary, possession of a dangerous weapon by a 

restricted person, and obstruction of justice. Over Mr. Reece‘s

objection, the trial court granted the State‘s motion to introduce the 

stolen rifle as evidence linking him to a 9 mm Beretta handgun. 

¶12 At trial, Mr. Reece denied telling Cellmate that he struggled 

with and accidentally shot the victim. He claimed that he did not 

have a gun on July 13 and said that Friend was lying about his 

incriminating statements and seeing him cleaning a 9 mm Beretta on 
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Opinion of the Court

5

July 12. According to Mr. Reece, he was in the victim‘s neighborhood 

stealing mail when he heard a gunshot inside her home. He went 

inside to assist a woman he saw lying motionless in the living room, 

believing she may have tried to kill herself. He claimed that while he 

was leaning over her, he got some blood on his shirt, and he looked 

up to see a man with a gang tattoo holding a gun. Mr. Reece 

explained that he fled when the man turned the gun on him and that 

he purchased the stolen assault rifle for protection. He admitted that 

he had previously owned a 9 mm Beretta but insisted that he got rid 

of the gun in early 2010. 

¶13 Mr. Reece requested that the court issue lesser-includedoffense instructions on murder, felony murder, manslaughter, 

negligent homicide, and homicide by assault. The court denied the 

request, concluding that Mr. Reece‘s testimony ―create[d] an all-ornothing situation‖ and that there was no rational basis to believe 

Cellmate‘s testimony that the murder was inadvertent, in light of the 

physical evidence of an intentional killing. Mr. Reece also submitted 

a 193-question juror questionnaire. The court struck twelve questions 

and modified several others, citing concern for the jurors‘ privacy. 

¶14 Mr. Reece moved to sever the weapons charge, which the 

court granted in part. The court instructed the jurors to determine 

whether Mr. Reece was in possession of a firearm on July 13 and 

informed them that it was unlawful under some circumstances for a 

person to purchase or possess a gun. The jury found Mr. Reece guilty 

of all charges and found that he possessed a weapon on July 13. 

Mr. Reece waived his right to a jury trial on the restricted person 

element of the weapons offense, and the court found that Mr. Reece 

was a convicted felon at the time he possessed a firearm. 

¶15 Mr. Reece also filed a motion asserting that the aggravated 

murder sentencing statute was unconstitutional. The court rejected 

his claims and sentenced Mr. Reece to LWOP. He now appeals. We 

have jurisdiction under Utah Code section 78A-3-102(3)(i).

Standard of Review

¶16 Mr. Reece urges us to vacate his conviction and remand for 

a new trial. First, he argues that he was entitled to lesser-includedoffense instructions on murder, felony murder, manslaughter, 

negligent homicide, and homicide by assault. ―A trial court‘s refusal 

to grant a lesser included offense instruction is a question of law, 

which we review for correctness.‖2 Second, he argues that the court 

2 State v. Powell, 2007 UT 9, ¶ 12, 154 P.3d 788.
STATE v. REECE

Opinion of the Court

6

inappropriately limited the scope of voir dire, inhibiting his ability 

―to question the prospective jurors about their biases related to 

substance abuse, association, employment, ties to the legal 

community and/or prosecutorial agencies, and upbringing.‖ We 

review a judge‘s decision imposing limits on voir dire questioning 

for an abuse of discretion.3

¶17 Third, Mr. Reece contends that the trial court should have 

excluded evidence that police found a stolen assault rifle in 

Mr. Reece‘s car one month after the murder. ―A trial court‘s 

admission of prior bad acts evidence is reviewed for abuse of 

discretion, but the evidence must be scrupulously examined by trial 

judges in the proper exercise of that discretion.‖4 Fourth, Mr. Reece 

argues that the weapons offense should have been severed from the 

other charges because evidence that he unlawfully possessed a 

weapon ―was not relevant‖ to the other charges ―except to show a 

criminal disposition.‖ ―A ruling on a motion to sever charges‖ is 

discretionary ―and will not be disturbed on appeal, absent an abuse 

of discretion.‖5

¶18 Finally, Mr. Reece argues in the alternative that we ―should 

remand for a new sentencing hearing because (1) the noncapital 

aggravated murder sentencing statute is unconstitutional‖ and 

―(2) the court abused its discretion by sentencing Mr. Reece to‖ life 

without parole. The constitutionality of a statute is a question of law 

reviewed for correctness.6 We review a trial court‘s sentencing 

decision for abuse of discretion.7

Analysis

¶19 We affirm Mr. Reece‘s conviction. Even though the trial 

court erred in denying Mr. Reece‘s request for lesser-includedoffense instructions, the error was harmless in light of 

uncontroverted physical evidence that linked Mr. Reece to the crime 

scene and demonstrated that the murder was intentional. The court 

did not abuse its discretion in imposing limits on voir dire 

3 State v. Piansiaksone, 954 P.2d 861, 867–68 (Utah 1998).

4 State v. Verde, 2012 UT 60, ¶ 13, 296 P.3d 673 (internal quotation 

marks omitted).

5 State v. Saunders, 699 P.2d 738, 740 (Utah 1985), abrogated on other 

ground by State v. Doporto, 935 P.2d 484, 489 (Utah 1997).

6 State v. MacGuire, 2004 UT 4, ¶ 8, 84 P.3d 1171.

7 State v. Moa, 2012 UT 28, ¶ 34, 282 P.3d 985.
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Opinion of the Court

7

questioning. Mr. Reece‘s attorney was allowed unlimited individual 

follow-up questions with each prospective juror and the totality of 

the lengthy juror questionnaire afforded him ample opportunity to 

unearth potential juror biases. The trial court did not abuse its 

discretion in admitting the stolen-rifle evidence, because the 

evidence was relevant to a genuine noncharacter purpose—whether 

Mr. Reece had access to the type of weapon investigators believed 

was used to kill the victim—and its admission was not unfairly 

prejudicial in light of the other evidence admitted at trial. Denying 

Mr. Reece‘s motion to sever the weapons charge was also not an 

abuse of discretion, because the court bifurcated the weapons charge 

in a way that prevented the jury from ever learning that Mr. Reece 

was a convicted felon. 

¶20 We also conclude that the noncapital aggravated murder 

sentencing statute is constitutional for reasons we recently discussed 

in State v. Perea,

8 but we agree with Mr. Reece that the trial court 

incorrectly interpreted the statute as imposing a presumptive 

sentence of LWOP. We therefore remand to the trial court for a 

limited hearing to determine how this mistake influenced the court‘s 

sentencing decision. If the trial court determines that its mistaken 

interpretation of the statute impacted the ultimate decision to 

impose LWOP, Mr. Reece is entitled to a new sentencing hearing.

I. Mr. Reece Was Entitled to Lesser-Included-Offense

Instructions, but the Error Was Harmless

¶21 Mr. Reece argues that the trial court improperly denied his 

request for lesser-included-offense instructions on murder, felony 

murder, manslaughter, negligent homicide, and homicide by assault. 

Utah Code section 76-1-402 provides that trial courts ―shall not be 

obligated to charge the jury with respect to an included offense 

unless there is a rational basis for a verdict acquitting the defendant 

of the offense charged and convicting him of the included offense.‖9

This court has interpreted section 76-1-402 to require a defendant to 

make two showings before he is entitled to a lesser-included-offense 

instruction: ―(1) that the charged offense and the lesser included 

offense have overlapping statutory elements and (2) that the 

evidence provides a rational basis for a verdict acquitting the 

defendant of the offense charged and convicting him of the included 

8 2013 UT 68, ¶¶ 108–27, 322 P.3d 624.

9 UTAH CODE § 76-1-402(4).
STATE v. REECE

Opinion of the Court

8

offense.‖10 The State concedes, and we agree, that the statutory 

elements of aggravated murder overlap with each of Mr. Reece‘s 

proposed lesser included offenses. We also agree with Mr. Reece that 

Cellmate‘s testimony, considered in isolation, provides a rational 

basis in the evidence to acquit him of aggravated murder and 

convict him of lesser included offenses that punish unintentional 

killings. But errors in criminal proceedings usually justify reversal 

only if there is a reasonable likelihood that the error affected the 

outcome of the proceedings.11 And in light of the uncontroverted 

physical evidence linking Mr. Reece to the crime scene and showing 

overwhelmingly that he killed the victim intentionally, we conclude 

that the error was harmless.

A. There is a Rational Basis in the Evidence to Acquit Mr. Reece of 

Aggravated Murder and Convict Him of Lesser Included

Offenses Involving Unintentional Killings

¶22 Even if the statutory elements of a lesser included offense 

overlap with those of the charged offense, ―a defendant‘s right to a 

lesser included offense instruction is limited by the evidence and 

only justified where there is a rational basis for a verdict acquitting 

the defendant of the offense charged and convicting him of the 

included offense.‖12 In making that determination, trial courts must 

―view[] the evidence in the light most favorable to the defendant‖ 

and cannot ―weigh the evidence.‖13 Rather, ―when the evidence is 

ambiguous and therefore susceptible to alternative interpretations, 

and one alternative would permit acquittal of the greater offense and 

conviction of the lesser, a jury question exists and the court must 

give a lesser included offense instruction at the request of the 

defendant.‖14 This standard assures that lesser-included-offense 

instructions serve their intended purpose of safeguarding a 

10 State v. Powell, 2007 UT 9, ¶ 24, 154 P.3d 788 (internal quotation 

marks omitted).

11 See State v. Vargas, 2001 UT 5, ¶ 48, 20 P.3d 271 (―Even 

assuming the trial court erred in concluding there was good cause 

for allowing the State to obtain the defense witness list, we will not 

reverse [the] trial court for committing harmless error.‖ (alteration in 

original) (internal quotation marks omitted)).

12 Powell, 2007 UT 9, ¶ 27 (internal quotation marks omitted).

13 Id.

14 State v. Baker, 671 P.2d 152, 159 (Utah 1983).
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Opinion of the Court

9

defendant‘s constitutional right to a fair trial15 without ―allow[ing] 

the jury to return a compromise, or other unwarranted verdict.‖16

We conclude that the trial court properly denied Mr. Reece‘s request 

for a lesser-included-offense instruction on murder, but because 

there was a rational basis in the evidence for the jury to conclude 

that the killing was unintentional, the court erred in denying Mr. 

Reece‘s request for an instruction on the other lesser included 

offenses that punish unintentional killings.

1. There was no rational basis in the evidence to justify a jury 

instruction on murder

¶23 As we have discussed, Mr. Reece is not entitled to a lesserincluded-offense instruction on murder unless there is a rational 

basis to convict him of that offense and acquit him of aggravated 

murder. Aggravated murder occurs when a person ―intentionally or 

knowingly causes the death of another . . . incident to‖ the 

commission of a listed felony.

17 And in this case, the State charged 

Mr. Reece with killing the victim during the course of a burglary, 

which is one of the felonies listed in the aggravated murder statute. 

Mr. Reece argues that ―there was evidence to support a verdict of 

murder because there was a rational basis to find that [he] did not 

commit burglary,‖ but intentionally or knowingly killed the victim. 

He points out that ―[n]othing was stolen or disturbed in the home‖ 

and that he ―was extremely intoxicated and suffering paranoia, 

anxiety, and memory loss‖ at the time. He also cites evidence in the 

record that ―he approached other homes‖ in the victim‘s 

neighborhood ―for purposes other than theft or assault—e.g., he 

entered one home looking for  ̳Mike‘ and approached others looking 

for a telephone or glass of water.‖ The State maintains that ―[e]ven if 

the jury might have believed that [Mr. Reece] innocently entered [the 

victim‘s] home, once it found that he committed an intentional 

homicide there, it would also necessarily find that he‖ committed a 

burglary and aggravated murder. We agree with the State.

¶24 No rational jury could have concluded that Mr. Reece 

committed murder without also concluding that he committed a 

burglary. Burglary occurs when a defendant ―enters or remains 

unlawfully in a building or any portion of a building with intent to 

15 See id. at 157.

16 Powell, 2007 UT 9, ¶ 27 (internal quotation marks omitted).

17 UTAH CODE § 76-5-202(1)(d).
STATE v. REECE

Opinion of the Court

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commit: (a) a felony; (b) theft; [or] (c) an assault on any person.‖18 In 

other words, a person can commit burglary without stealing 

anything—a person who commits any felony while remaining 

unlawfully inside a building is also guilty of burglary. And we have 

previously concluded that a defendant can ―form the intent to 

commit another crime at the time he enters or while he remains 

unlawfully in [a] building.‖19 Accordingly, in State v. Tillman, we 

determined that a defendant who broke into the victim‘s home for 

the purpose of killing him had committed ―first degree murder,‖20

an offense Utah law now punishes as aggravated murder.21 We 

rejected the contention that ―since burglary is a completed offense 

the moment entry is made with the requisite felonious intent, such 

circumstance . . . could not provide the basis for elevating the 

subsequent intentional killing to first degree murder.‖22 Instead, we 

determined that because the defendant ―committed an intentional 

homicide‖ after unlawfully entering the victim‘s home, the evidence 

―clearly supported‖ a conclusion that the defendant committed a 

burglary and elevated the killing from murder to first degree 

murder.23

¶25 Here, Mr. Reece is correct that there is no evidence that he 

took anything from the victim‘s home. A crime scene investigator 

testified that ―[t]he house was extremely clean‖ and that ―nothing 

[was] out of order.‖ The victim‘s husband also testified that, to the 

best of his knowledge, nothing was missing from his home after the 

murder. And Mr. Reece also testified that he entered the home 

lawfully ―to help‖ a woman he saw through the window ―lying flat‖ 

after he heard a gunshot. But even if the jury believed that Mr. 

Reece‘s initial entry was a lawful attempt to aid someone in distress, 

Mr. Reece‘s presence in the home became unlawful the moment he 

decided to ―intentionally or knowingly‖ kill the victim.24 If the jurors 

18 UTAH CODE § 76-6-202(1).

19 State v. Rudolph, 970 P.2d 1221, 1229 (Utah 1998).

20 750 P.2d 546, 551, 571–72 (Utah 1987).

21 See UTAH CODE § 76-5-202(1)(d); Tillman, 750 P.2d at 550, 568–

69.

22 Tillman, 750 P.2d at 571 (internal quotation marks omitted).

23 Id. at 572.

24 See UTAH CODE § 76-6-202(1)(a) (providing that a person 

commits burglary by ―enter[ing] or remain[ing] unlawfully in a 

building or any portion of a building with intent to commit . . . a 
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believed that Mr. Reece committed murder while ―remain[ing] 

unlawfully‖ in the victim‘s home, they would have no choice but to 

convict him of burglary as well, even though he did not steal 

anything. And if Mr. Reece ―intentionally or knowingly‖ caused the 

victim‘s death ―incident to . . . a burglary,‖ no reasonable juror could 

conclude that Mr. Reece committed murder without also 

determining that the killing amounted to aggravated murder.25 We 

therefore conclude that the trial court properly denied Mr. Reece‘s 

request for a lesser-included-offense instruction on murder.

2. There was a rational basis in the evidence to justify jury 

instructions on several variants of unintentional homicide

¶26 But we cannot agree with the trial court‘s conclusion that 

there was no rational basis in the evidence to justify instructions on 

the other lesser included offenses Mr. Reece requested. Mr. Reece 

asked the court for instructions on several other offenses, all of 

which punish unintentional killings.26 The only evidence of an 

accidental murder was Cellmate‘s account of his jailhouse 

conversation with Mr. Reece. According to Cellmate, Mr. Reece told 

him that he ―walked in‖ to the victim‘s home and ―a lady came up 

and grabbed him, and he grabbed his gun, turned around . . . and the 

gun went off by accident.‖ 

¶27 The trial court acknowledged that Cellmate‘s testimony, 

standing alone, ―would have justified lesser instructions.‖ But the 

court denied the requested instructions because Mr. Reece testified 

that Cellmate was lying—he claimed that he ―[n]ever told‖ Cellmate 

―that there was a lady inside the house . . . that startled‖ him or ―that 

somewhere in the process of interacting with this lady . . . the gun 

went off.‖ The court also noted that Cellmate‘s testimony was 

inconsistent with the physical evidence. A crime scene investigator 

testified that there were ―no drag marks, no smear marks . . . in the 

 

felony‖); id. § 76-5-203(2)(a) (defining murder as ―intentionally or 

knowingly caus[ing] the death of another‖). 

25 Id. § 76-5-202(1)(d) (defining aggravated murder as 

―intentionally or knowingly‖ causing a death ―incident to . . . 

aggravated burglary[ or] burglary‖).

26 Mr. Reece argues in his reply brief that a depravedindifference-murder instruction would have been appropriate, and 

he asked the trial court for instructions on felony murder, 

manslaughter, negligent homicide, and homicide by assault.
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Opinion of the Court

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blood that we could see. No blood anywhere else [was] found. All 

the blood was concentrated in that one area right on the love seat‖ 

where investigators found the victim‘s body. The investigator also 

testified that the victim‘s gunshot wound was consistent with a 

bullet fired at a ―downward trajectory‖ about one foot away from 

her head. And a weapons expert testified that the gun likely used to 

kill the victim can be discharged only if ―the trigger is pulled . . . to 

90 percent engagement,‖ making it highly unlikely that this ―type of 

gun . . . may accidentally go off.‖ 

¶28 The State argues that Cellmate‘s ―testimony cannot support 

a lesser included offense instruction because‖ Mr. Reece ―took the 

stand and repudiated it.‖ According to the State, our obligation to 

―view[] the evidence in the light most favorable to the defendant 

requesting the instruction‖27 requires us ―to take Mr. Reece at his 

word and discount [Cellmate‘s] testimony.‖ Additionally, the State 

maintains that Cellmate‘s testimony, standing alone, provides no 

basis for reasonable jurors to ignore the ―uncontradicted physical 

evidence demonstrat[ing] that the shooting was intentional.‖ We 

disagree.

¶29 The ―light most favorable standard‖ serves several 

important functions, including preserving the jury‘s ―responsibility 

of evaluating the weight and credibility of the evidence.‖28 Indeed, in 

determining whether there is a rational basis in the evidence to 

support a lesser-included-offense instruction, a trial court may not 

―weigh the credibility of the evidence.‖29 Rather, ―when the evidence 

is ambiguous and therefore susceptible to alternative interpretations, 

and one alternative would permit acquittal of the greater offense and 

conviction of the lesser, a jury question exists and the court must 

give a lesser included offense instruction at the request of the 

defendant.‖30 Consequently, instead of ignoring Cellmate‘s 

testimony and confining our analysis to evidence that supports the 

specific defense theory Mr. Reece presented at trial, we examine the 

entire ―record taken as a whole,‖31 accepting whatever portions of 

27 Powell, 2007 UT 9, ¶ 27.

28 Id.

29 Baker, 671 P.2d at 159.

30 Id.

31 See Powell, 2007 UT 9, ¶ 27.
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Opinion of the Court

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witness testimony, as well as other evidence, that support the 

requested lesser-included-offense instruction.32

¶30 There may be some cases where this ―process of dissect[ing] 

and reconstruct[ing]‖ the evidence fails to reveal a rational basis in 

the evidence for a lesser-included-offense instruction despite some 

supporting evidence.33 For instance, although trial courts must 

construe the facts and all reasonable inferences from them in favor of 

the defendant, an inference is not reasonable if ―it falls to a level of 

inconsistency or incredibility that no reasonable jury could accept 

it.‖34 In other words, a ―defendant‘s request for a lesser included 

offense instruction‖ cannot be ―based on sheer speculation‖35 from a 

discrete piece of evidence if, viewed in the context of the record as a 

whole, acquitting the defendant of the greater offense and convicting 

of the lesser would require jurors to fill gaps in the evidentiary 

picture with their own speculative judgments.36 For instance, in 

State v. Kell, we concluded that the defendant was not entitled to an 

32 Cf. Baldwin v. Vantage Corp., 676 P.2d 413, 417 (Utah 1984) 

(noting that ―the testimony of witnesses is to be given such weight 

and credibility as the trier of fact may find reasonable under the 

circumstances‖).

33 See United States v. Moore, 108 F.3d 270, 273 (10th Cir. 1997).

34 State v. Maughan, 2013 UT 37, ¶ 14, 305 P.3d 1058 (internal 

quotation marks omitted).

35 Powell, 2007 UT 9, ¶ 33.

36 See, e.g., State v. Garcia-Vargas, 2012 UT App 270, ¶ 17, 287 P.3d 

474 (denying a request for a lesser-included-offense instruction 

where even though the defendant‘s testimony raised ―at least the 

possibility‖ that he committed the lesser offense but not the greater, 

that conclusion was ―entirely speculative‖ based on other evidence 

in the case); Moore, 108 F.3d at 273 (―While it is sometimes 

permissible for the jury to dissect and reconstruct the evidence to 

identify a rational basis upon which to convict on the lesser and 

acquit on the greater offense, the process of dissection and 

reconstruction must itself be rationally motivated.‖ (footnote 

omitted)); United States v. Crowder, 543 F.2d 312, 318 (D.C. Cir. 1976) 

(rejecting a request for a self-defense instruction because ―[t]he 

theory fragments the testimony in a selective process . . . so 

attenuated as to strain credulity to the breaking point‖ (internal 

quotation marks omitted)).
STATE v. REECE

Opinion of the Court

14

instruction on imperfect self-defense manslaughter, even though he 

―testified that he believed he was acting out of self-defense‖ when he 

killed the victim.37 We noted that because the defendant stabbed the 

victim multiple times in the back while the victim was both unarmed 

and handcuffed, the ―great weight of the evidence‖ contradicted the 

defendant‘s claim and strongly indicated that the defendant ―could 

not have believed himself to be in imminent danger at the time of the 

attack.‖38

¶31 But here, unlike the evidence presented in Kell, Cellmate‘s 

testimony could have supported an inference that the murder was 

unintentional without requiring the jurors to engage in speculation. 

Viewing the evidence in the light most favorable to Mr. Reece, we 

must assume that he perjured himself at trial when he testified that 

he did not have a gun the day of the murder and that someone else 

killed the victim. And we must also assume that Mr. Reece was 

being truthful when he told Cellmate that his gun went off 

inadvertently during a brief struggle with the victim. Reaching these 

conclusions would not require a reasonable juror to ignore the 

physical evidence; rather, the jurors could have simply believed that 

the location of the victim‘s blood and the trajectory of the bullet 

demonstrated that Mr. Reece discovered the victim in her living 

room, struggled with her near the couch, and accidentally shot her 

when she reached for his gun. Such a scenario would be consistent 

with the victim‘s husband‘s description of her as someone who 

―wouldn‘t back down‖ and would have tried to fight off her 

attacker. The State‘s experts, of course, interpreted the evidence 

differently, but the jurors can assign expert ―testimony any weight 

they choose, including no weight at all.‖39 We therefore conclude 

that there was ―a sufficient quantum of evidence to raise a jury 

question‖40 about whether Mr. Reece shot the victim inadvertently, 

and the court therefore erred by concluding that there was no 

rational basis for lesser-included-offense instructions involving an 

unintentional killing.

37 2002 UT 106, ¶ 25, 61 P.3d 1019.

38 Id.

39 Dixon v. Stewart, 658 P.2d 591, 597 (Utah 1982) (―No matter how 

arcane the subject matter or how erudite the witness, the jury is not 

required to accept the expert‘s testimony as conclusive.‖).

40 Baker, 671 P.2d at 159. 
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Opinion of the Court

15

B. Failing to Issue Lesser-Included-Offense Instructions

Was Harmless Error

¶32 Having concluded that Mr. Reece was entitled to a lesserincluded-offense instruction, we now turn to the question of whether 

the trial court‘s error prejudiced his case. We begin by clarifying an 

ambiguity in our caselaw—whether the improper denial of a lesserincluded-offense instruction presumptively affects the outcome of a 

case and precludes any harmless error analysis. We conclude that 

denying a lesser-included-offense instruction is an ordinary trial 

error to which harmless error analysis applies. We also conclude that 

the trial court‘s error in denying Mr. Reece‘s requested instructions 

was harmless in light of the overwhelming evidence linking him to 

the crime scene and demonstrating that the murder was intentional. 

1. Failing to instruct the jury on a lesser included offense is not a 

structural error

¶33 An error is harmless and does not require reversal if it is 

―sufficiently inconsequential that we conclude there is no reasonable 

likelihood that the error affected the outcome of the proceedings.‖41

Stated differently, ―the likelihood of a different outcome‖ absent the 

error ―must be sufficiently high to undermine confidence in the 

verdict.‖42 Errors are often harmless where there is overwhelming 

evidence in the record of the defendant‘s guilt.43 And the defendant 

generally bears the burden to demonstrate that the error he 

complains of affected the outcome of his case.44

41 State v. Verde, 770 P.2d 116, 120 (Utah 1989).

42 State v. Hamilton, 827 P.2d 232, 240 (Utah 1992) (internal 

quotation marks omitted). 

43 See, e.g., State v. Maestas, 2012 UT 46, ¶ 165, 299 P.3d 892 

(concluding that a prosecutor‘s inappropriate reference during 

closing argument to the fact that the defendant did not testify was 

harmless because ―the jury was given a strong curative instruction 

and there was overwhelming evidence‖ of the defendant‘s guilt);

State v. Young, 853 P.2d 327, 345 (Utah 1993) (concluding that even if

―the trial court erred in admitting evidence of [the defendant‘s] 

attempted flight from the police,‖ the error was harmless ―[i]n light 

of the overwhelming evidence of defendant‘s guilt‖). 

44 See State v. Bell, 770 P.2d 100, 106 (Utah 1988); see also UTAH R.

CRIM. P. 30(a) (―Any error, defect, irregularity or variance which does 

not affect the substantial rights of a party shall be disregarded.‖).
STATE v. REECE

Opinion of the Court

16

¶34 But there is a narrow exception to this general rule. We have 

recognized that ―structural errors‖ that affect ―the framework within 

which the trial proceeds‖ are qualitatively different than an ordinary 

―error in the trial process itself.‖45 Consequently, we presume that a 

structural error affected the outcome of the case and do not require 

the defendant to show prejudice.46 Examples of such errors include 

mistakes in reasonable doubt instructions,47 the complete denial of 

counsel at a critical stage of a criminal proceeding,48 racial 

discrimination in jury selection,49 lack of an impartial trial judge,50

denial of the right to a public trial,51 and the failure to instruct the 

jury on ―the basic elements of an offense.‖52

¶35 Citing our decision in State v. Spillers,

53 Mr. Reece argues 

that when a trial court fails to give a lesser-included-offense 

instruction, ―[p]rejudice . . . is not measured by the strength of the 

evidence but by whether the evidence is consistent with both the 

defendant‘s and the State‘s theory of the case.‖ In other words, 

Mr. Reece contends that as long as there is a rational basis in the 

evidence to support instructing the jury on a lesser included offense, 

45 State v. Cruz, 2005 UT 45, ¶ 17, 122 P.3d 543 (internal quotation 

marks omitted).

46 Id.

47 Id. ¶¶ 17–18.

48 Gideon v. Wainwright, 372 U.S. 335, 339, 342–45 (1963); see also 

Maestas, 2012 UT 46, ¶ 57.

49 Batson v. Kentucky, 476 U.S. 79, 100 (1986); State v. Higginbotham, 

917 P.2d 545, 547–48 (Utah 1996). But see State v. Harris, 2012 UT 77, 

¶ 30 n.13, 289 P.3d 591 (―Harris also urges us to adopt the view that 

Batson errors are structural in nature and therefore obviate the 

prejudice inquiry under the plain error standard. Because we 

conclude that any error here could not have been obvious to the trial 

court, however, we need not and accordingly do not reach the 

prejudice question of the  ̳structural error‘ ground for avoiding proof 

of prejudice.‖). 

50 Kell, 2002 UT 106, ¶ 15 n.2 (citing Johnson v. United States, 520 

U.S. 461, 468–69 (1997)).

51 Id. ¶ 15.

52 State v. Bluff, 2002 UT 66, ¶ 26, 52 P.3d 1210 (internal quotation 

marks omitted).

53 State v. Spillers, 2007 UT 13, ¶ 24, 152 P.3d 315.
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Opinion of the Court

17

a trial court‘s failure to instruct the jury presumptively affects the 

outcome of trial and is not subject to our typical harmless error 

analysis on appeal. 

¶36 We reject Mr. Reece‘s contention for two reasons. First, 

although Mr. Reece cites language in two cases that seems to support 

his position, this court has never held that failing to instruct the jury 

on a lesser included offense is a structural error. Second, the failure 

to instruct the jury on a lesser included offense bears a close 

resemblance to other ordinary trial errors we review for 

harmlessness. 

¶37 Mr. Reece cites State v. Spillers to support his assertion that 

the failure to give a lesser-included-offense instruction is a structural 

error. In that case, we held that a defendant convicted of first degree 

murder was entitled to an instruction on extreme emotional distress 

manslaughter.54 And we cited a Utah Court of Appeals case for the 

proposition that ― ̳failing to instruct on [a] lesser included offense 

presumptively affects the outcome of the trial‘‖ when ― ̳the evidence 

is consistent with both the defendant‘s and the State‘s theory of the 

case.‘‖55 That statement, standing alone, has an air of structural error 

about it. But in Spillers, we devoted just one paragraph to harmless 

error analysis and did not attempt to distinguish, nor purport to 

overrule, other decisions that found harmless error in this context.56

And the court of appeals decision we cited in Spillers did not engage 

the issue in any more depth or attempt to distinguish other court of 

appeals precedent that applied traditional harmless error review.57

¶38 Furthermore, a survey of our own caselaw and our court of 

appeals decisions reveals that both courts have consistently applied 

harmless error analysis to a trial court‘s erroneous denial of lesserincluded-offense instructions. In State v. Evans, for example, we 

concluded that ―the trial court erred in refusing to instruct the jury 

on the lesser-included offense of attempted manslaughter.‖58 But we 

explained that the error was harmless because the only evidence 

54 Id. ¶¶ 9, 20.

55 Id. ¶ 24 (quoting State v. Knight, 2003 UT App 354, ¶ 17, 79 P.3d 

969).

56 Id.

57 See Knight, 2003 UT App 354, ¶ 17.

58 2001 UT 22, ¶ 20, 20 P.3d 888.
STATE v. REECE

Opinion of the Court

18

supporting the instruction was the defendant‘s own self-serving 

testimony, which conflicted with the accounts of numerous 

eyewitnesses.59 Similarly, in State v. Payne, the court of appeals 

concluded that there was ―a rational basis for a verdict acquitting 

[the defendant] of lewdness involving a child and convicting him of 

the lesser included offense of child abuse,‖60 but it determined that 

the error was harmless.61 There the court observed that to convict the 

defendant of the lesser offense and acquit him of the greater, ―the 

jury would have to reject the credibility of [several] witnesses in 

favor of mere inferences that are conceivable from the evidence but 

are by no means compelled by it.‖62 These cases are not outliers—

Utah courts have consistently applied harmless error analysis in this 

context for at least three decades.63

¶39 Not only has our caselaw never classified the failure to issue 

a lesser-included-offense instruction as a structural error, but this 

type of error also closely resembles others that we have always 

reviewed for harmlessness. For example, errors in jury instructions 

are routinely reviewed for harmless error,64 including instructions 

that mischaracterize the culpable mental state required to sustain a 

59 Id. ¶¶ 21–23.

60 964 P.2d 327, 334 (Utah Ct. App. 1998).

61 Id. at 335

62 Id.

63 See, e.g., State v. Daniels, 2002 UT 2, ¶ 29, 40 P.3d 611; State v. 

Piansiaksone, 954 P.2d 861, 871–72 (Utah 1998); State v. Pearson, 943 

P.2d 1347, 1350–51 (Utah 1997); State v. Gotschall, 782 P.2d 459, 464 

(Utah 1989), abrogated on other grounds by State v. Doporto, 935 P.2d 

484, 489 (Utah 1997).

64 See, e.g., Piansiaksone, 954 P.2d at 870–71 (concluding that jury 

instructions that ―improperly mandated an order of deliberation and

deprived defendant of the right to have the jury consider his 

 ̳defense‘ of manslaughter‖ were harmless errors); State v. Fontana, 

680 P.2d 1042, 1048–49 (Utah 1984) (―Even if the instruction on 

depraved indifference second degree murder had been in error, the 

error was not prejudicial.‖); State v. Montague, 671 P.2d 187, 190 

(Utah 1983) (―[A] criminal conviction is not reversed because of an 

erroneous jury instruction unless the error is of such gravity that it 

could cause substantial prejudice to defendant‘s rights.‖).
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Opinion of the Court

19

conviction.65 Similarly, we have applied harmless-error review to 

erroneous self-defense instructions66 and the complete failure to 

instruct the jury on an affirmative defense.67 The analogy to 

affirmative defense instructions is particularly apt because 

defendants are entitled to such instructions if the evidence ―provides 

any reasonable basis upon which a jury could conclude that the 

affirmative defense applies to the defendant,‖68 a standard that 

mirrors the rational basis test for lesser-included-offense 

instructions.69 In reviewing these errors for harmlessness, we have 

treated them as ―garden-variety trial errors‖ rather than 

fundamental flaws that ―affect the very framework of the trial‖ 

itself.70 And beyond citing our statement in Spillers, Mr. Reece has 

not identified any reason why the failure to give lesser-includedoffense instructions should be treated any differently. Accordingly, 

we conclude that the failure to give a lesser-included-offense 

instruction is not a structural error. To the extent language in Spillers 

or Knight could be read to the contrary, we disavow it.

2. The trial court‘s failure to instruct the jury in Mr. Reece‘s case 

was harmless error

¶40 We now turn to the question of whether the trial court‘s 

erroneous denial of Mr. Reece‘s requested lesser-included-offense 

instructions ―affected the outcome of the proceedings.‖71 The trial 

65 Powell, 2007 UT 9, ¶¶ 19, 21–23 (holding that a jury instruction 

that erroneously stated that the mens rea requirement for attempted 

murder was ―knowing‖ or ―depraved indifference‖ was harmless 

error because ―the uncontested evidence would allow the jury only 

one reasonable conclusion: that [the defendant] intentionally 

attempted to cause [the victim‘s] death‖).

66 State v. Starks, 627 P.2d 88, 91–92 (Utah 1981).

67 See State v. Cowan, 490 P.2d 890, 892 (Utah 1971) (concluding 

that failing to give an entrapment instruction was harmless error); 

State v. Cox, 751 P.2d 1152, 1154–55 (Utah Ct. App. 1988) (holding 

that the failure to instruct the jury on a defense of implied consent in 

an unlawful control of a vehicle was harmless error).

68 State v. Low, 2008 UT 58, ¶ 25, 192 P.3d 867. 

69 See supra ¶ 22.

70 See Cruz, 2005 UT 45, ¶ 17.

71 State v. Evans, 2001 UT 22, ¶ 20, 20 P.3d 888.
STATE v. REECE

Opinion of the Court

20

court‘s error is not harmful unless there is a reasonable likelihood 

that the jury would have acquitted Mr. Reece of aggravated murder 

and convicted him of an offense involving an unintentional killing.72

Because there was overwhelming evidence that Mr. Reece 

intentionally killed the victim, we conclude that ―there is no 

reasonable likelihood‖ that the jury would have acquitted Mr. Reece 

of aggravated murder. Accordingly, our confidence in the verdict is 

not undermined,73 and denying the requested instructions was 

therefore harmless error. 

¶41 First, the physical evidence conclusively linked Mr. Reece to 

the crime scene—investigators found the victim‘s blood on 

Mr. Reece‘s shirt, he admitted that he entered the victim‘s home, and 

his attempt at providing an innocent explanation for this 

incriminating evidence was, to put it mildly, implausible. In his 

telling, Mr. Reece was a good Samaritan that stumbled into the 

wrong place at the wrong time. He claims that he heard a gunshot, 

looked into the victim‘s home, and saw a woman ―lying flat‖—a 

woman he believed had just tried to kill herself. He then rushed 

inside to assist the woman and got blood on his shirt while leaning 

over her. But Mr. Reece also admitted that he was only near the

victim‘s home because he thought it was in ―a nice neighborhood 

and [he] was going to check mailboxes in that neighborhood‖ to ―see 

if [he] could get anything valuable.‖ On the night of the murder, the 

evidence also showed that Mr. Reece entered three homes without 

permission, violently assaulted one resident, and stole a package and 

a money order from two other homeowners in the area. Essentially, 

Mr. Reece asked the jury to believe that sometime during a crime 

spree that spanned two hours and in which he committed multiple 

felonies, he felt compelled to stop at the victim‘s home just to be a 

good citizen. We find his story to be simply incredible.

¶42 Second, the evidence of an intentional murder overwhelmed 

Cellmate‘s testimony that Mr. Reece accidentally shot the victim 

during a brief struggle. According to investigators, all of the victim‘s

blood ―was concentrated in . . . one area right on the love seat‖ 

where they found her body, and the bullet that killed her was fired 

at a ―downward trajectory‖ about one foot away from her head. The 

victim had a black eye, cuts on her nose, loose teeth, and abrasions 

on the side of her face ―consistent with [a] blunt force injury.‖ The 

state medical examiner believed that the victim ―was struck by 

72 See id.

73 Id.
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Opinion of the Court

21

something that was very hard with a lot of force.‖ These injuries, 

along with cuts on the back of the victim‘s left hand, led the medical 

examiner to conclude that the victim tried ―to cover [her] face with a 

hand while she [was] being struck.‖ A weapons expert also testified 

that the gun likely used to kill the victim can be discharged only if 

―the trigger is pulled . . . to 90 percent engagement,‖ making it 

highly unlikely that this ―type of gun . . . may accidentally go off.‖ 

And of course, Mr. Reece testified that Cellmate was lying, 

repudiating the only piece of evidence that the murder was 

accidental. 

¶43 The physical evidence and the inherent implausibility of 

Mr. Reece‘s testimony lead us to conclude that there was 

overwhelming evidence that he killed the victim intentionally during 

the course of a burglary. We therefore conclude that even if the trial 

court had instructed the jury on lesser offenses involving 

unintentional killings, ―there is no reasonable likelihood‖ that the 

outcome of trial would have been any different, and the trial court‘s 

failure to issue the instructions was harmless.74 

II. The Trial Court Appropriately Limited Voir Dire

¶44 Mr. Reece next argues that the trial court ―erred in refusing 

to allow [him] to ask‖ prospective jurors questions he claims would 

have allowed him to detect biases unfavorable to his case. Mr. Reece 

submitted a proposed juror questionnaire with 193 questions. The 

trial court refused to ask only twelve of them and modified a few 

others. According to Mr. Reece, these limits ―substantially impaired‖ 

his ability to ―intelligently exercise his peremptory challenges.‖ The 

State maintains that the totality of the questions asked and the 

opportunity Mr. Reece had for individual follow-up questioning 

with each prospective juror ―afforded Mr. Reece an adequate 

opportunity to gain the information necessary to evaluate the 

jurors.‖ We agree with the State.

¶45 The purpose of voir dire examination is ―both the detection 

of actual bias . . . and the collection of data to permit informed 

exercise of the peremptory challenge.‖75 Generally, ―trial courts 

should be permissive in allowing voir dire questions and should 

exercise their discretion in favor of allowing counsel to elicit 

74 See id.

75 State v. Piansiaksone, 954 P.2d 861, 867 (Utah 1998) (alteration in 

original) (internal quotation marks omitted). 
STATE v. REECE

Opinion of the Court

22

information from prospective jurors.‖76 But trial courts have no 

obligation ―to permit every question‖ that ―might disclose some basis 

for counsel to favor or disfavor seating a particular juror.‖77 Nor do 

defendants have a right ―to ask questions in a particular manner.‖78

Rather, courts have broad discretion to limit any question that bears 

only a tangential relationship to jurors‘ potential biases or that 

―unduly intrudes‖ into the jurors‘ private lives.79 A court‘s limits on 

voir dire questioning are not an abuse of discretion when, 

―considering the totality of the questioning, counsel was afforded an 

adequate opportunity to gain the information necessary to evaluate 

the jurors.‖80

¶46 Mr. Reece identifies five areas of concern that the court 

prevented him from exploring effectively: (1) ―bias towards the 

prosecution and . . . law enforcement,‖ (2) ―jurors‘ possible 

upbringing and attitudes toward the criminal justice system,‖ (3) 

attitudes derived from membership in ―social organizations,‖ (4) 

―whether jurors would have been unsuitable for the defense based 

on their connection to people employed in the legal community,‖ 

and (5) ―any negative assumptions about persons who have 

substance abuse problems.‖ The totality of the questionnaire and Mr. 

Reece‘s follow-up questions adequately covered each of these topics, 

and the trial court acted well within its discretion by limiting or 

excluding questions that it determined probed too deeply into the 

jurors‘ private lives.

¶47 First, with respect to jurors‘ ―biases towards . . . law 

enforcement‖ and ―attitudes toward the criminal justice system,‖ 

Mr. Reece complains that the court did not allow him to ask a 

number of questions about the jurors‘ relationship with law 

enforcement or security companies. In particular, Mr. Reece wanted 

to ask each juror about specific positions he or she had held with a 

law enforcement agency or a private security firm, whether a spouse

76 Id. at 868.

77 Id. 

78 Taylor v. State, 2007 UT 12, ¶ 70, 156 P.3d 739 (internal 

quotation marks omitted).

79 See Piansiaksone, 954 P.2d at 868; see also State v. Ball, 685 P.2d 

1055, 1060 (Utah 1984) (―The criminal defendant‘s right to a fair trial 

does not create a license in his defense counsel to conduct an 

inquisition into the private beliefs and experiences of a venireman.‖).

80 Taylor, 2007 UT 12, ¶ 70 (internal quotation marks omitted).
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Opinion of the Court

23

or child worked for a similar entity, and where each juror was born. 

Instead, Mr. Reece argues that the court improperly limited his 

questions to the jurors‘ and their spouses‘ general occupations

without requiring them to report specific employers.81

¶48 But Mr. Reece‘s argument ignores a number of questions the 

court permitted that were directly related to the jurors‘ attitudes 

towards law enforcement and the justice system. For example, 

questions 48 through 62 required jurors to report whether they or 

someone close to them had ever been arrested or charged with a 

crime, and whether that experience had generated any negative 

feelings toward the justice system. Questions 63 through 78 asked 

whether the juror or family members had been the victim of a crime, 

and if so, how it affected their feelings toward the justice system. 

Mr. Reece was also allowed to ask how jurors felt about defense 

attorneys and prosecutors, whether jurors believed police officers 

were more credible than other potential witnesses, and whether they 

felt that the justice system is generally too hard or too soft on 

criminals. Moreover, the trial court permitted Mr. Reece to ask 

individual follow-up questions with each prospective juror, and the 

record shows that he elicited even more information that allowed 

him to assess jurors‘ attitudes about the criminal justice system and 

biases towards law enforcement.82 

¶49 Second, even though the trial court allowed questions 

requiring jurors to disclose their membership in any social 

organizations, Mr. Reece contends that the court improperly 

excluded a question that would have required jurors to list any 

positions they had held within those organizations. According to 

Mr. Reece, ―[i]nformation about positions can provide insight about 

the level of involvement in and commitment to the organization.‖ 

That may be true, but the court allowed several other questions that, 

coupled with individual follow-up questioning, adequately 

81 The trial court permitted Mr. Reece to inquire about each 

juror‘s birthplace.

82 For example, Mr. Reece questioned one potential juror who 

indicated on his questionnaire that defense attorneys ―serve a noble 

cause but at times‖ he ―question[s] their ethics.‖ Mr. Reece was able 

to determine that the juror had no ―similar concerns about the ethics 

of prosecutors‖ and that his parents taught him that ―you can trust a 

police officer‖ because they are generally ―good people.‖ The record 

is replete with similar examples.
STATE v. REECE

Opinion of the Court

24

addressed potential biases and attitudes derived from membership 

in a particular social or political group. Question 125 asked jurors 

whether they felt their decision in the case ―might be criticized by 

your family, your friends, your church or church members, or 

others,‖ and if so, ―would such criticism be of concern to you?‖ 

Additionally, Mr. Reece asked jurors to describe their political views, 

whether they were involved in any groups organized to make 

changes to the justice system, and he was also permitted to follow up 

individually on any answers to these questions that raised a concern. 

¶50 Third, Mr. Reece asked whether each juror or the juror‘s 

―sibling, spouse, children, [or] parents‖ had ―ever worked for an 

attorney,‖ but the court did not permit him to require jurors to 

identify the family member‘s name, the juror‘s relationship to that 

person, the attorney‘s name, or the name and location of the law firm 

or government agency that employed the attorney.‖ Mr. Reece 

maintains that striking these questions prevented him from 

determining ―whether jurors would have been unsuitable for the 

defense based on their connection to people employed in the legal 

community.‖ But the record indicates that Mr. Reece was able to 

elicit much of this information in follow-up questions with 

individual jurors. For example, Mr. Reece‘s trial counsel asked 

individual follow-up questions of one juror who indicated on her 

questionnaire that she ―had family and friends that work with 

attorneys.‖ The juror said she had ―a daughter who is an attorney,‖ 

counsel asked ―what kind of attorney is she,‖ and the juror said her 

daughter worked ―for LexisNexis and just teaches at colleges.‖ A 

second juror indicated that his father ―was a criminal lawyer, . . . a 

defense attorney‖ in response to a follow-up question, and Mr. Reece 

learned that a third juror had a ―father-in-law [who] does water 

rights.‖ There is no indication in the record that the court limited Mr. 

Reece‘s follow-up questioning in a way that prevented him from 

determining whether the jurors had relationships with people in the 

legal community that would lead them to favor the defense or the 

prosecution.

¶51 Finally, Mr. Reece argues that the trial court should have 

allowed him to ask whether each juror, or ―any close friend or family 

member, had a substance abuse problem. If so, who was the person, 

when did the problem occur, and what substance was it?‖ Instead, 

the court asked each juror whether the fact that a witness used drugs 

would ―impact your ability to be fully impartial and fair.‖ Only one 

juror answered that question affirmatively, and the court eventually 

dismissed her for health reasons. Mr. Reece cites our decision in State 
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Opinion of the Court

25

v. Saunders83 for the proposition that it is reversible error for a trial 

court to allow jurors to essentially self-report their own biases—that 

is, to simply ask whether a particular factor would impair the juror‘s 

objectivity and then take their ―answer as dispositive of the issue of 

bias.‖ We conclude that Saunders is distinguishable from the 

circumstances in Mr. Reece‘s case and that the trial court did not 

abuse its discretion in limiting questions about substance abuse.

¶52 In Saunders, we reversed a trial court‘s decision refusing 

defense counsel‘s request to ask follow-up questions of several 

potential jurors ―who stated they had specialized knowledge 

concerning child sexual abuse from their educational background 

and one juror who was actively supporting an anti-child-abuse 

organization.‖84 We expressed disapproval of ―the all too prevalent 

practice of avoiding any real inquiry into possible bias‖ by simply 

asking prospective jurors if they ―could decide the case fairly and 

follow the law . . . then taking a prospective juror‘s affirmative 

answer as dispositive of the issue of bias.‖85 Because the jurors‘ 

―answers provide[d] evidence of possible bias‖ about child sex 

abuse, we concluded that a juror‘s ―conclusory statement that he or 

she will . . . decide the case fairly‖86 was simply insufficient and that 

the court abused its discretion ―in refusing to allow a further probing 

of the jurors‘ attitudes toward child sexual abuse.‖87 In doing so, we 

noted that there was ―little objective evidence‖ of the defendant‘s 

guilt and the jurors ―therefore had to rely on a subjective evaluation 

of the witnesses‘ credibility that would be strongly influenced by the 

jurors‘ own experiences and points of view and the possible biases 

that arose from them.‖88

¶53 Here, although we acknowledge the court could have 

crafted a more effective question to probe the jurors‘ attitudes about 

substance abuse, the circumstances differ in important respects from 

those in Saunders. To begin with, the bias Mr. Reece identifies is not 

directly related to the offenses for which he was convicted. Saunders 

involved multiple sex offenses committed against a small child, and 

83 1999 UT 59, ¶ 34, 992 P.2d 951.

84 Id. ¶¶ 38–39.

85 Id. ¶ 34.

86 Id. ¶ 36.

87 Id. ¶ 47.

88 Id. ¶ 37.
STATE v. REECE

Opinion of the Court

26

several jurors revealed information during voir dire that fairly called 

into question their ability to remain impartial due to the nature of 

the offenses.89 Mr. Reece, by contrast, was not charged with any drug 

offenses, and there were witnesses for both the prosecution and the 

defense who admitted to having substance abuse problems. 

Consequently, a bias against drug users would not necessarily have 

predisposed a juror to find against Mr. Reece. Moreover, unlike the 

defendant in Saunders, Mr. Reece was permitted to ask follow-up 

questions of each individual juror without any restrictions.90

Mr. Reece has not identified any instances in which the trial court 

prevented him from asking a specific follow-up question, and our 

own review of the record indicates that the judge gave him wide 

latitude in questioning each individual juror.91

¶54 Furthermore, asking jurors to disclose their own personal 

history with substance abuse—including any family member‘s drug 

use—is deeply personal. As we have noted, judges have ―broad 

discretionary power to conduct voir dire‖ and have ―a duty to 

protect juror privacy.‖92 Judges therefore do not abuse their 

discretion when they take steps to assure that any line of questioning 

is ―pursued with a sensitivity to the privacy of the potential juror‖93

so long as ―the totality of the questioning‖ affords counsel with ―an 

adequate opportunity to gain information necessary to evaluate the 

jurors.‖94 Of course, protecting the jurors‘ privacy becomes a less 

compelling reason to limit voir dire questioning when a potential 

bias is strongly related to elements of the charged offense or other 

89 Id. ¶¶ 4, 38.

90 See id. ¶¶ 38–39. 

91 We also note that Mr. Reece‘s follow-up questions actually 

elicited information about jurors‘ attitudes towards substance abuse. 

For example, in questioning one juror who indicated on her 

questionnaire that a relative had been charged with a crime, Mr. 

Reece was able to learn that the relative was convicted of a drug 

offense. Mr. Reece‘s counsel specifically asked if there was ―anything 

about your brother-in-law‘s situation that somehow is going to 

influence your ability‖ to objectively evaluate witness‘s testimony, 

and the juror said no.

92 State v. Ball, 685 P.2d 1055, 1060 (Utah 1984).

93 Id. 

94 Piansiaksone, 954 P.2d at 868 (internal quotation marks 

omitted).
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27

important issues in the case. But as we have explained, that is not the 

case here. Consequently, due to the highly personal nature of this 

particular question, the wide latitude the judge provided for 

individual follow-up questioning, and the attenuated relationship 

between the alleged bias and the ultimate issues in the case, we 

cannot say that the trial court abused its discretion in this instance. 

¶55 In summary, the trial court allowed Mr. Reece to ask the 

vast majority of the 193 questions in his proposed juror 

questionnaire. Those questions, along with those the court modified 

and the unlimited individual follow-up questioning, demonstrate 

that Mr. Reece had every opportunity to uncover the information he 

needed to identify juror biases and intelligently exercise his 

peremptory challenges. Far from placing unreasonable limits on the 

scope of voir dire, the trial court was fair and accommodating and 

appropriately exercised its discretion to protect the jurors‘ privacy 

without inhibiting Mr. Reece‘s ability to meaningfully evaluate the 

prospective jurors. 

III. The Trial Court Properly Admitted the 

State‘s Rule 404(b) Evidence

¶56 Mr. Reece also argues that rule 404(b) of the Utah Rules of 

Evidence should have barred the admission of evidence that police 

found a stolen assault rifle in his car when they arrested him. And he 

contends that the court should have excluded certain details of the 

traffic stop and arrest that led to the weapon‘s recovery. Specifically, 

police thought they saw Mr. Reece reach for a handgun under his 

seat, and after he was ordered out of the car, Mr. Reece ran and had 

to be subdued by a taser. Rule 404(b) prohibits the admission of 

evidence of a defendant‘s ―crime, wrong, or other act . . . to prove 

[the defendant‘s] character in order to show on a particular occasion 

the [defendant] acted in conformity with the character.‖95 Mr. Reece 

contends that the ―true purpose‖ of the stolen rifle evidence was ―to 

suggest that Mr. Reece was a dangerous person who acted in 

conformity with [his] alleged bad character.‖ 

¶57 Rule 404(b) allows evidence of prior bad acts for 

noncharacter purposes, ―such as proving motive, opportunity, 

intent, preparation, plan, knowledge, identity, absence of mistake, or 

lack of accident.‖96 But the evidence ―must clear several evidentiary 

95 UTAH R. EVID. 404(b)(1).

96 Id. 404(b)(2).
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28

hurdles before admission—rules 404(b), 402, and 403.‖97 These 

requirements can be distilled into a three-part test: the prior bad-act 

evidence (1) must be ―offered for a genuine, noncharacter purpose,‖ 

(2) ―must be relevant‖ to that noncharacter purpose, and (3) the 

―probative value of the evidence must not be substantially 

outweighed by the danger of unfair prejudice.‖98 Additionally, as we 

recently clarified in State v. Lucero, ―matters of conditional relevance 

must also meet the preponderance of the evidence standard under‖ 

rule 104(b).99 We conclude that the stolen rifle evidence meets each of 

these requirements.

A. The Evidence Was Offered For a Genuine Noncharacter Purpose

¶58 Evidence that Mr. Reece had a stolen assault rifle was 

offered for the noncharacter purpose of identifying Mr. Reece as the 

murderer by showing that he had access to the type of gun 

investigators determined was likely the murder weapon. A State 

firearms expert matched the broken guide rod found in the victim‘s 

home to a 9 mm Beretta 90-Two handgun, and the owner of the 

stolen rifle testified that the weapon was stolen with a Beretta 90-

Two from his truck in January 2010. Mr. Reece testified at trial that 

he did not have a gun the day of the murder and that he saw 

someone else in the victim‘s home with a gun right after she was 

killed. He also testified that he did not own a Beretta handgun and 

claimed that Friend was lying when she testified that she saw him 

cleaning a Beretta the day before the murder. In other words, Mr. 

Reece claimed that he could not have committed the murder because 

he did not even have access to a Beretta when the victim was killed. 

Because police never recovered the murder weapon, there was no 

physical evidence to rebut that claim. Consequently, the central issue 

at trial was the identity of the killer. And evidence linking Mr. Reece 

to a Beretta undermined his assertion that someone else killed the 

victim by showing that, contrary to his trial testimony, Mr. Reece 

had access to the type of gun that investigators had identified as the 

likely murder weapon. The stolen rifle evidence was therefore 

offered for the genuine noncharacter purpose of establishing Mr. 

Reece‘s identity as the murderer.

¶59 Mr. Reece maintains that even if the evidence was offered to 

prove his identity as the murderer, ―[t]o qualify as identity evidence, 

97 State v. Lucero, 2014 UT 15, ¶ 13, 328 P.3d 841.

98 Id.

99 Id.
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. . . the link between the evidence and the charged offense must be so 

unique as to constitute a signature.‖ He cites a number of cases 

where courts admitted evidence of a defendant‘s prior crimes under 

rule 404(b) because the prior crimes bore ―numerous . . . signaturelike similarities‖ with the charged offense. Mr. Reece‘s argument is 

inconsistent, however, with the plain language of rule 404(b) and our 

caselaw.

¶60 It is true that cases where rule 404(b) evidence is offered to 

prove identity often involve signature crimes.100 But the language of 

rule 404(b) does not limit identity evidence in such a manner and 

neither does our caselaw. Rule 404(b)(2) provides that evidence of 

prior bad acts ―may be admissible‖ to prove ―motive, opportunity, 

intent, preparation, plan, knowledge, identity, absence of mistake, or 

lack of accident.‖101 We have recognized that the permissible uses of 

bad-acts evidence listed in rule 404(b) is illustrative, ―not 

exhaustive,‖ and ―evidence demonstrating other purposes is not 

precluded so long as the evidence is offered for a legitimate purpose 

other than to show the defendant‘s propensity to commit the crime 

charged.‖102 We see no reason why the language of the rule requires 

the exclusion of evidence that, though probative of identity, does not 

involve a signature crime.

¶61 Our caselaw is also inconsistent with such a limitation. In 

State v. Shaffer, we affirmed a trial court‘s decision in a murder trial 

to admit evidence that the defendant stole a wallet.103 We noted that 

after the wallet was stolen, the owner‘s identification was used to 

100 See, e.g., State v. Decorso, 1999 UT 57, ¶¶ 27, 31, 993 P.2d 837 

(admitting evidence that the defendant burglarized a shoe store in 

West Jordan because there ―were numerous similarities between the 

crimes committed at‖ that store and another store in Draper, 

―suggesting that the same person committed both crimes‖); State v. 

Webster, 2001 UT App 238, ¶ 35, 32 P.3d 976 (concluding that 

evidence that a defendant stole a car in another state was 

inadmissible because ―[t]he only similarities apparent on the record 

between the two incidents are that (1) a car was stolen (2) from a 

dealership lot‖ and this ―pair of facts is not sufficiently unique as to 

constitute a signature‖ (internal quotation marks omitted)).

101 UTAH R. EVID. 404(b)(2).

102 State v. Allen, 2005 UT 11, ¶ 17, 108 P.3d 730.

103 State v. Shaffer, 725 P.2d 1301, 1308 (Utah 1986). 
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obtain a gun permit and purchase a .38 caliber weapon that was used 

to kill the victim.104 Because the ―theft of [the] identification 

provided the first link in the chain of evidence that connected the .38 

caliber weapon . . . with the defendant and the [victim‘s] death,‖ we 

concluded that the theft was ―relevant to establishing the identity of 

the defendant as the person in possession‖ of the murder weapon.105

¶62 Similarly, in Salt Lake City v. Alires, the Utah Court of 

Appeals determined that a trial court properly admitted evidence 

that the defendant had tried to break into the victim‘s home in a 

prosecution for telephone harassment.106 The police had responded 

to a 911 call and found the defendant ―banging on a window‖ at the 

back of the victim‘s apartment.107 The defendant told the police that 

he lived in the apartment and was trying to get in to see his 

girlfriend and baby.108 After confirming that the defendant did not 

live there and that the victim did not want to see him, the police 

asked him to leave.109 One hour later, someone called the victim, 

asked her why she had called the police, and threatened to kill her 

daughter if she did not let him see her.110 Even though the attempted 

break-in did not involve ―a common plan or scheme‖111 similar to 

the threatening phone call, the court of appeals concluded that the 

incident was admissible as identity evidence under rule 404(b) 

because ―the facts clearly link the two incidents and tend to identify 

[the] defendant as the caller.‖112

¶63 These cases demonstrate that evidence of a prior crime 

offered to identify a defendant need not bear ―signature-like‖ 

similarities with the charged offense to be admissible under rule 

404(b). Rather, any evidence that is probative of identity for reasons 

other than establishing a propensity for criminal activity may be 

admitted under the rule, provided of course that it also clears other 

104 Id. 

105 Id.

106 2000 UT App 244, ¶¶ 2–6, 12–13, 9 P.3d 769. 

107 Id. ¶ 2.

108 Id.

109 Id. 

110 Id. ¶¶ 3–4.

111 Id. ¶ 13.

112 Id. 
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pertinent evidentiary hurdles.113 And here, as we have discussed, the 

stolen rifle evidence was offered for just such a purpose. 

B. The Evidence is Relevant to Identify Mr. Reece as the Murderer

¶64 Having concluded that the stolen rifle evidence was offered 

for the noncharacter purpose of identifying Mr. Reece as the 

murderer, we now examine whether the evidence is relevant to that 

purpose. ―Evidence is relevant if: (a) it has any tendency to make a 

fact more or less probable than it would without the evidence; and 

(b) the fact is of consequence in determining the action.‖114 This is 

not a particularly high bar to clear—we have previously stated that 

any ―[e]vidence that has even the slightest probative value‖ is 

relevant under the rules of evidence.115 But that is not the entire 

inquiry—when the relevancy of a prior crime or bad act hinges on

―whether a fact exists,‖116 the prior act is only admissible if the trial 

court determines that ―the jury could reasonably find‖ that factual 

condition fulfilled ―by a preponderance of the evidence.‖117

¶65 Here, Mr. Reece‘s access to a 90-Two Beretta has no bearing 

on the identity of the murderer unless such a weapon was actually 

used to kill the victim. The relevancy issue in this case therefore 

presents us with two questions: (1) Does possession of the stolen rifle 

113 Other courts have reached the same conclusion. See, e.g., United 

States v. Treff, 924 F.2d 975, 981–82 (10th Cir. 1991) (concluding that 

evidence that the defendant killed his wife and fled with his children 

was relevant to establish the defendant‘s identity as the arsonist of 

another home); State v. Gillispie, 26 A.3d 397, 413 (N.J. 2011) (noting 

that rule 404(b) ―is not so narrow with respect to proof of identity‖ to 

preclude evidence that the defendant had used the murder weapon 

in a subsequent crime from admission in his murder trial even 

though the later crime was not similar in any way to the murder); 

State v. Suttle, 812 P.2d 119, 124 n.10 (Wash. Ct. App. 1991) (noting 

that ―prior bad acts evidence may be admitted under [rule] 404(b) 

when that evidence is probative of identity for other reasons, and its 

admissibility is not limited to signature crimes‖ (internal quotation 

marks omitted)). 

114 UTAH R. EVID. 401.

115 State v. Jaeger, 1999 UT 1, ¶ 12, 973 P.2d 404 (alteration in 

original) (internal quotation marks omitted).

116 UTAH R. EVID. 104(b).

117 Lucero, 2014 UT 15, ¶ 19 (internal quotation marks omitted).
STATE v. REECE

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32

make it more likely that Mr. Reece possessed a Beretta 90-Two 

handgun the day of the murder? (2) Could a reasonable jury have 

found by a preponderance of the evidence that the murder weapon 

was in fact a Beretta 90-Two? We consider each question in turn and 

conclude that the stolen rifle evidence was relevant to establishing 

Mr. Reece‘s identity as the murderer.

¶66 First, Mr. Reece‘s possession of the stolen rifle has at least 

some ―tendency‖ to make it more probable that he had access to a 

Beretta 90-Two handgun. Investigators testified that the serial

number of the stolen rifle found in Mr. Reece‘s car matched a 

weapon that was stolen in Park City six months before the murder. 

And the rifle‘s owner testified that it was stolen along with ―a 

Beretta 90-Two 9 mm pistol.‖ It is certainly possible, as Mr. Reece 

points out, that he purchased the stolen rifle from someone else and 

that the Beretta found its way to another black-market purchaser. 

But Mr. Reece‘s possession of the stolen rifle also raises a nontrivial 

possibility that he stole both weapons himself or purchased them at 

the same time from the person who did. Even if the probability of 

either scenario is somewhat remote, evidence that ―has any

tendency‖ to make a fact of consequence more or less probable is 

relevant and admissible.118

¶67 Second, there is enough evidence in the record to justify a 

jury finding by a preponderance of the evidence that the murder 

weapon was in fact a 9 mm Beretta 90-Two. Mr. Reece admitted that 

he owned a Beretta six months before the murder occurred, another 

witness testified that she saw Mr. Reece cleaning a Beretta the day 

before the murder, and the victim‘s blood was found on Mr. Reece‘s 

shirt. Additionally, the police found a 9 mm shell casing at the crime 

scene, a firearms expert testified that the broken guide rod police 

recovered is ―a patented piece that‘s used exclusively by Beretta,‖ 

and the expert also testified that the broken guide rod ―matched the

one‖ used in a Beretta 90-Two.

¶68 Mr. Reece argues that ―the State‘s proof was far from 

conclusive.‖ He points out that the State‘s expert ―conceded that at 

least two other Berettas—the 92A1 and the 96A1—use the same 

guide rod.‖ But the expert also testified that the 96A1 was a .40 

caliber weapon, not a 9 mm. The expert testimony and the physical 

evidence therefore indicated that the murder weapon was either a 9 

mm Beretta 90-Two or a 92A1, and the expert affirmatively matched 

the guide rod to the 90-Two model. A jury could therefore find by a 

118 UTAH R. EVID. 401, 402 (emphasis added).
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33

preponderance of the evidence that the murder weapon was a 

Beretta 90-Two. And because it would not be unreasonable for the 

jury to reach such a conclusion, evidence linking Mr. Reece to a 

Beretta 90-Two is relevant to the noncharacter purpose of identifying 

him as the murderer. 

C. The Evidence Was Not Unfairly Prejudicial

¶69 ―[T]he final hurdle that prior bad acts evidence must 

overcome‖ is rule 403,119 which provides that courts ―may exclude 

relevant evidence if its probative value is substantially outweighed 

by a danger of . . . unfair prejudice.‖120 And ―unfair prejudice results 

only where the evidence has an undue tendency to suggest decision 

upon an improper basis.‖121 Weighing the probative value and 

potentially unfair prejudicial effect of evidence involves a variety of 

considerations, including the factors we identified in State v. 

Shickles.

122 These factors are

the strength of the evidence as to the commission of the 

other crime, the similarities between the crimes, the 

interval of time that has elapsed between the crimes, 

the need for the evidence, the efficacy of alternative 

proof, and the degree to which the evidence probably 

will rouse the jury to overmastering hostility.123

We recently clarified that ―while some of these factors may be 

helpful in assessing the probative value of the evidence in one 

context, they may not be helpful in another.‖124 So it is ―unnecessary 

for courts to evaluate each and every factor and balance them 

together in making their assessment.‖125 Accordingly, in determining 

the admissibility of the stolen rifle evidence under rule 403, we focus 

our analysis on the text of rule 403 and analyze only those Shickles

factors that are relevant to the circumstances of Mr. Reece‘s case. We 

119 Lucero, 2014 UT 15, ¶ 30.

120 UTAH R. EVID. 403.

121 Lucero, 2014 UT 15, ¶ 32 (internal quotation marks omitted).

122 760 P.2d 291, 295–96 (Utah 1988), abrogated on other grounds by 

State v. Doporto, 935 P.2d 484 (Utah 1997).

123 Id. (internal quotation marks omitted).

124 Lucero, 2014 UT 15, ¶ 32.

125 Id.
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Opinion of the Court

34

conclude that the probative value of the evidence was not 

substantially outweighed by the potential for unfair prejudice.

¶70 The probative value of the stolen rifle was perhaps not 

strong, but it was also not insubstantial. The police never recovered 

the murder weapon, and Mr. Reece testified at trial that he did not 

have a gun the day of the murder. He also claimed that he had

gotten rid of the only Beretta he ever owned in early 2010 and that 

someone else committed the murder. So even though the State had 

DNA evidence that conclusively linked Mr. Reece to the crime, it 

also needed the stolen rifle evidence to effectively rebut Mr. Reece‘s 

claim that he did not have access to the type of weapon used to kill 

the victim. Of course, there was no evidence that Mr. Reece himself 

stole the rifle or that he purchased the rifle with a stolen Beretta, so 

the link between Mr. Reece‘s possession of the stolen rifle and access 

to the murder weapon was somewhat attenuated. Additionally, the 

State‘s expert left open the possibility that the murder weapon was a 

Beretta 92A-1, not a 90-Two.126

¶71 But even though the evidence‘s probative value was not

overwhelming, the potential for unfair prejudice is quite low 

considering the other unlawful behavior Mr. Reece admitted to on 

the witness stand. He testified that he was in the victim‘s 

neighborhood stealing mail after several days of heavy drug use. He 

admitted that he entered several homes without permission and 

violently assaulted one of the residents he encountered without 

provocation. And he also told the jury that during his crime spree, he 

hit another car, sped off, and had to be tackled by several neighbors 

before police arrived. The fact that Mr. Reece also had a stolen rifle in 

his car, fled the police, and had to be subdued by a taser certainly 

did not cast him in a positive light, but considering the variety and 

severity of the criminal conduct Mr. Reece admitted to at trial, it 

simply would not have roused the jury ―to overmastering 

hostility.‖127

¶72 In summary, we conclude that the stolen rifle evidence was 

not improperly admitted under rule 404(b). The evidence was 

offered for the genuine noncharacter purpose of identifying 

Mr. Reece as the murderer by showing he had access to the type of 

gun investigators believed to be the murder weapon. And the fact 

that the rifle in his possession was stolen with a 90-Two Beretta has 

126 Supra ¶ 68.

127 See Lucero, 2014 UT 15, ¶ 33.
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Opinion of the Court

35

at least some tendency to show that Mr. Reece had access to that type 

of weapon. Additionally, the State presented enough evidence to 

justify a jury finding by a preponderance of the evidence that the 

murder weapon was in fact a 90-Two Beretta. Finally, the potential 

for unfair prejudice did not substantially outweigh the evidence‘s 

probative value in light of the criminal conduct that Mr. Reece freely 

admitted to in front of the jury.

IV. The Trial Court Did Not Abuse its Discretion by 

Denying the Motion to Sever

¶73 Mr. Reece next argues that the trial court erred by refusing 

to sever the third count in the indictment—possession of a firearm 

by a restricted person—from the other charges. Utah Code section 

77-8a-1(4)(a) provides that a ―court shall order an election of separate 

trials of separate counts‖ if the court determines that ―a defendant 

. . . is prejudiced by a joinder of offenses.‖ ―The burden of 

demonstrating prejudice is a difficult one, and the ruling of the trial 

judge will rarely be disturbed upon review. The defendant must 

show something more than the fact that a separate trial might offer 

him a better chance of acquittal.‖128

¶74 Here, instead of completely severing the weapons charge, 

the court elected to bifurcate it, instructing the jury to determine if 

Mr. Reece intentionally possessed a firearm on July 13. The jury 

found beyond a reasonable doubt that Mr. Reece possessed a 

weapon, and then in a separate proceeding before the judge,129 the 

State introduced evidence of Mr. Reece‘s prior felony conviction. 

Mr. Reece argues that the court‘s decision ―did not comply with the 

rules of evidence or [his] constitutional right to due process and a 

fair trial‖ because the jury was ―encouraged . . . to speculate about 

what circumstances made . . . possession‖ of the firearm ―illegal.‖ In 

support, he cites State v. Saunders130 and State v. Long131 for the 

proposition that severance is always required on a possession by a 

128 State v. Smith, 927 P.2d 649, 654 (Utah Ct. App. 1996) (internal 

quotation marks omitted); see also State v. Benson, 2014 UT App 92, 

¶ 16, 325 P.3d 855.

129 Mr. Reece waived his right to a jury trial on the restricted 

person element of the weapons charge.

130 699 P.2d 738 (Utah 1985), abrogated on other grounds by State v. 

Doporto, 935 P.2d 484 (Utah 1997).

131 721 P.2d 483 (Utah 1986).
STATE v. REECE

Opinion of the Court

36

restricted person charge when evidence of the defendant‘s legal 

disability ―would have been inadmissible at a separate trial‖ on the 

other charges. We conclude that refusing to sever the weapons 

offense was not an abuse of discretion.

¶75 In Saunders, the jury was presented with evidence that the 

defendant was a convicted felon in a trial for possession of a weapon 

by a restricted person, burglary, and theft.132 We reversed his 

convictions because evidence of the prior conviction ―permit[ted] the 

jury to consider evidence of [the] defendant‘s prior crime as the basis 

for an inference that he committed the burglary and theft.‖133 And in 

Long, we noted that the ―refusal to sever the possession of a 

dangerous weapon charge from the remaining charges was an abuse 

of discretion because of the unwarranted prejudice inherent in 

informing the jury that a defendant is a convicted felon.‖134 The 

jurors in Mr. Reece‘s case, by contrast, never saw evidence of 

Mr. Reece‘s prior criminal history. Rather, the court instructed the 

jury that it is ―unlawful under certain circumstances for a person to 

purchase, transfer, possess, use, or have under his control or custody 

a firearm.‖ The jurors may have wondered what ―circumstances‖ 

made Mr. Reece‘s possession of a firearm illegal, and some of them 

may have speculated that Mr. Reece had a prior criminal history. But 

it is equally plausible that the jurors believed that the possession 

instruction related to the other charges—for instance, committing 

burglary with a dangerous weapon is a different offense than simple 

burglary. Mr. Reece has therefore failed to meet his heavy burden of 

demonstrating that the court abused its discretion by refusing to 

sever the weapons charge.

V. The Aggravated Murder Sentencing Statute is Not 

Unconstitutional, but Mr. Reece is Entitled to a New Hearing

¶76 Finally, Mr. Reece argues in the alternative that the 

noncapital aggravated murder sentencing statute is unconstitutional. 

Because his arguments mirror those we recently rejected in State v. 

Perea,

135 we conclude that the statute is constitutional. Mr. Reece also 

argues that the trial court abused its discretion when it sentenced 

him to life without parole (LWOP) because it incorrectly interpreted 

the sentencing statute as imposing a presumptive LWOP sentence. 

132 699 P.2d at 740–41.

133 Id. at 741.

134 721 P.2d at 495.

135 2013 UT 68, ¶¶ 110–25, 322 P.3d 624.
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Although there is some evidence that the court properly weighed the 

pertinent sentencing factors, we remand for a limited hearing to 

determine whether, and if so, how the court‘s erroneous 

interpretation of the statute affected the decision to impose an 

LWOP sentence. 

A. The Sentencing Statute is Constitutional

¶77 The aggravated murder sentencing statute provides that a 

sentence of first degree felony aggravated murder ―shall be life in 

prison without parole or an indeterminate prison term of not less 

than 25 years and which may be for life.‖136 Mr. Reece contends that 

the sentencing statute is unconstitutional for three reasons: (1) the 

statute ―is unconstitutionally vague because, unlike Utah‘s other 

LWOP statutes, it provides no guidance for when to impose LWOP‖; 

(2) the statute violates Utah‘s constitutional guarantee ―that the 

operation of the law be uniform‖; and (3) the statute violates the 

―federal and state constitutions‘ guarantee that cruel and unusual 

punishments shall not be inflicted‖ as well as Utah‘s ―unnecessary 

rigor‖ clause. We rejected each of these arguments in State v. Perea, 

and we reject them again here.

¶78 In Perea, the defendant argued that the aggravated murder 

sentencing statute was ―unconstitutionally vague,‖137 because ―it 

does not specify the particular items the sentencing court must 

consider in deciding which of the two possible sentences to 

impose.‖138 We concluded that the statute is constitutional. We 

observed that the statute must be read in the context of other 

provisions mandating that the criminal code ―shall be construed . . . 

[to p]revent arbitrary and oppressive treatment‖ and to impose 

―penalties which are proportionate to the seriousness of offenses.‖139

Consequently, we concluded that before a sentencing court imposes 

an LWOP sentence, it must ―consider all the evidence before it—the 

totality of the circumstances—[and impose] a sentence that is 

proportionate to the crime and the culpability of the defendant.‖140

Mr. Reece‘s vagueness challenge is no different than the argument 

we rejected in Perea—he maintains that the statute is 

136 UTAH CODE § 76-3-207.7(2).

137 2013 UT 68, ¶ 110.

138 Id. ¶ 115.

139 Id. (alterations in original) (internal quotation marks omitted).

140 Id. 
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Opinion of the Court

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unconstitutional because it ―provides no guidance on when to 

impose‖ LWOP instead of a sentence of twenty-five years to life in 

prison. Accordingly, we reject the vagueness challenge on stare 

decisis grounds.

¶79 Our decision in Perea also rejected the defendant‘s argument 

that the sentencing statute ―violates the uniform operation of laws 

provision of the Utah Constitution.‖141 We observed that ―[n]ot all 

those found guilty of aggravated murder are similarly situated‖ 

because ―each case and each defendant presents a different set of 

facts and a different combination of aggravating and mitigating 

factors.‖142 And ―because the discretion given to district courts‖ to 

weigh those factors ―furthers the legitimate legislative purpose of 

sentencing offenders based on the severity of their particular 

circumstances,‖ we concluded that the sentencing statute ―does not 

violate [the] uniform operation of laws provision.‖143 Mr. Reece 

similarly argues that the sentencing statute runs afoul of the uniform 

operation of laws provision ―because it divides a class of similarly 

situated offenders into two subclasses who will receive disparate 

treatment but defines no reasonable objective with which to 

differentiate the subclasses.‖ Our analysis in Perea speaks directly to 

that issue, and we see no reason to revisit it.

¶80 Finally, the defendant in Perea also unsuccessfully 

challenged the sentencing statute under the unnecessary rigor 

provision of the Utah Constitution and the cruel and unusual 

punishment provision of the United States Constitution. We rejected 

the unnecessary rigor challenge because that provision ―applies only 

to the conditions of one‘s confinement and does not speak to the 

proportionality of the particular sentence imposed,‖ so the provision 

was ―not implicated by the imposition of‖ an LWOP sentence.144

And we determined that the cruel and unusual punishment 

challenge was meritless because the defendant was an adult, did not 

face the death penalty, and did not commit a non-homicide crime, so 

none of the United States Supreme Court precedent the defendant 

cited demonstrated that an LWOP sentence violated the Eighth 

141 Id. ¶ 121.

142 Id. ¶ 123.

143 Id.

144 Id. ¶ 124.
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Opinion of the Court

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Amendment.145 Here, Mr. Reece argues that the sentencing statute 

violates the Eighth and Fourteenth Amendments of the federal 

constitution because ―the statute leaves the LWOP decision to the 

unfettered discretion of the judge, thereby allowing LWOP to be 

imposed in an arbitrary and capricious manner.‖ But like the 

defendant in Perea, Mr. Reece cites only to death-penalty cases, and 

he does not identify any compelling factual circumstances that make 

LWOP an excessively harsh sentence in this case. Thus, just as with 

Mr. Reece‘s other constitutional challenges, Perea is directly on point, 

and Mr. Reece has not raised any compelling reason why we should 

revisit any of our conclusions in that case. Accordingly, we conclude 

that the aggravated murder sentencing statute is constitutional.

B. We Remand for the Court to Determine Whether, and if so,

How Its Incorrect Reading of the Sentencing Statute Affected

Its Sentencing Decision

¶81 Mr. Reece maintains that even if the sentencing statute is 

constitutional, the court abused its discretion in sentencing him to 

LWOP because its decision resulted from ―the incorrect belief that 

LWOP was the presumptive sentence‖ and because the court based 

its decision on ―irrelevant and unreliable information‖ without 

considering Mr. Reece‘s potential for rehabilitation. ―We afford the 

trial court wide latitude in sentencing and, generally, will reverse a 

trial court‘s sentencing decision only if it is an abuse of the judge‘s 

discretion.‖146 Additionally, we have held that the due process clause 

of the Utah Constitution ―requires that a sentencing judge act on 

reasonably reliable and relevant information in exercising discretion 

in fixing a sentence.‖147

¶82 Our review of the court‘s post-sentence ruling on 

Mr. Reece‘s constitutional challenges confirms that the court 

145 Id. ¶ 125 (citing Roper v. Simmons, 543 U.S. 551, 574 (2005) 

(holding that juveniles cannot be sentenced to death); Graham v. 

Florida, 560 U.S. 48, 75 (2010) (concluding that the Eighth 

Amendment prohibits an LWOP sentence for juvenile defendants 

who did not commit a homicide); Atkins v. Virginia, 536 U.S. 304, 318 

(2002) (holding that defendants with an IQ below 70 cannot receive 

capital punishment)).

146 State v. Bluff, 2002 UT 66, ¶ 66, 52 P.3d 1210 (internal quotation 

marks omitted).

147 State v. Howell, 707 P.2d 115, 118 (Utah 1985).
STATE v. REECE

Opinion of the Court

40

determined, at some point, that LWOP was the presumptive 

sentence. But it is not clear whether the court reached that conclusion 

before or after it imposed Mr. Reece‘s sentence. In the trial court, 

Mr. Reece argued that the sentencing statute was unconstitutional 

because it ―does not allow a jury to decide a sentence in a first degree 

felony aggravated murder case.‖ He cited Apprendi v. New Jersey, 

where the Supreme Court held that ―any fact that increases the 

penalty for a crime beyond the prescribed statutory maximum must 

be submitted to a jury, and proved beyond a reasonable doubt.‖148

Relying on Apprendi, the trial court rejected Mr. Reece‘s 

constitutional challenge in a post-trial ruling. The court concluded 

that because ―the language of the statute sets forth the presumption 

that the sentence of aggravated murder shall be life without parole,‖

any additional fact finding would reduce Mr. Reece‘s sentence rather 

than increase it, so ―the holding in Apprendi does not apply.‖

¶83 The State concedes that this was an incorrect interpretation 

of the statute, and we agree.149 But the State insists that ―[n]othing in 

the court‘s sentencing analysis or decision demonstrates or even 

implies that the court‘s mistaken interpretation influenced its 

decision to impose LWOP.‖ In support, the State points out that the 

court never indicated at the sentencing hearing that LWOP was the 

presumptive sentence and the court explicitly stated that the ―two 

options here are 25 [years] to life or life without parole.‖ It was not 

until the court‘s post-trial ruling—which was issued after the 

imposition of Mr. Reece‘s sentence—that the court incorrectly 

interpreted the sentencing statute in addressing Mr. Reece‘s Apprendi 

argument.

¶84 The record is simply inconclusive on this point. At the 

sentencing hearing, the trial court observed that Mr. Reece did ―well 

in school as a young man‖ and had ―two girls‖ in his life that he 

loves—a girlfriend and a daughter. But the court ultimately 

determined that based on the violent nature of the crime and Mr. 

Reece‘s history of violence, ―the only way to protect people‖ was ―to 

give [Mr. Reece] life without parole.‖ On its face, the court‘s analysis 

appears sound—it ―considered the totality of the circumstances and 

148 530 U.S. 466, 490 (2000).

149 The aggravated murder sentencing statute does not create a 

presumption in favor of imposing LWOP. The statute provides, ―The 

sentence [for first degree felony aggravated murder] shall be life in 

prison without parole or an indeterminate prison term of not less 

than 25 years and which may be for life.‖ UTAH CODE § 76-3-207.7(2).
Cite as: 2015 UT 45

Opinion of the Court

41

explicitly weighed the mitigating and aggravating factors.‖150 But the 

court‘s post-trial ruling, which was issued just eight days later, states 

that LWOP was the presumptive sentence. It is therefore unclear 

whether the court analyzed the pertinent sentencing factors to 

choose between LWOP and twenty-five years to life, or whether it 

analyzed the factors to determine whether the circumstances 

justified a departure from an incorrectly presumed LWOP sentence. 

Consequently, we remand this question to the trial court. On 

remand, the court should determine whether its incorrect reading of 

the sentencing statute affected its decision to impose LWOP. If so, 

then Mr. Reece‘s sentence on the aggravated murder charge must be 

vacated, and the court must hold a new sentencing hearing. 

Conclusion

¶85 We affirm Mr. Reece‘s convictions. The failure to issue 

several lesser included offense instructions was harmless error, the 

court did not abuse its discretion in limiting voir dire questioning, 

the stolen rifle evidence was properly admitted under rule 404(b), 

and the court did not exceed its discretion by denying Mr. Reece‘s 

motion to sever the weapons charge. We also reject Mr. Reece‘s 

constitutional challenges to the aggravated murder sentencing 

statute because his arguments mirror those we rejected in State v. 

Perea. But we agree with Mr. Reece that the trial court incorrectly 

interpreted the sentencing statute as imposing a presumptive LWOP 

sentence. We accordingly remand for the court to determine whether 

its incorrect reading of the statute affected its decision to impose 

LWOP. On remand, if the court determines that its sentencing 

decision was affected by an erroneous reading of the statute, Mr. 

Reece is entitled to a new sentencing hearing.

150 See Perea, 2013 UT 68, ¶ 119.