1

This opinion is subject to revision before final

publication in the Pacific Reporter

2016 UT 51

IN THE

SUPREME COURT OF THE STATE OF UTAH

ESAR MET,

Appellant,

v.

STATE OF UTAH,

Appellee.

No. 20140522

Filed November 21, 2016

On Direct Appeal

Third District, Salt Lake

The Honorable Judith S. H. Atherton

No. 081902720

Attorneys:

Herschel Bullen, Salt Lake City, for appellant

Sean D. Reyes, Att‘y Gen., John J. Nielsen, Asst. Solic. Gen., 

Salt Lake City, for appellee

JUSTICE PEARCE authored the opinion of the Court in which

CHIEF JUSTICE DURRANT, JUSTICE DURHAM,

and JUSTICE HIMONAS joined.

ASSOCIATE CHIEF JUSTICE LEE filed a concurring opinion.

JUSTICE PEARCE, opinion of the Court:

¶1 Defendant Esar Met appeals his convictions on one count of 

aggravated murder, see UTAH CODE § 76-5-202, and one count of 

child kidnapping, see UTAH CODE § 76-5-301.1, each a first degree 

felony. Met is currently serving two concurrent sentences of life in 

prison without parole for these convictions.
STATE v. MET

Opinion of the Court

2

¶2 Met raises a panoply of issues on appeal. He challenges the 

constitutionality and the district court‘s application of Utah‘s 

noncapital aggravated murder sentencing statute, Utah Code section 

76-3-207.7. He contends that the district court improperly ruled that

the State could use a transcript of his police interview for 

impeachment purposes if he chose to testify. He also argues that the 

police violated the Fourth Amendment to the United States 

Constitution when they searched his apartment without a warrant

and that all evidence stemming from the allegedly illegal search

should have been suppressed. Met asks us to conclude that the 

district court improperly admitted two photographs of the victim, 

which he contends are prejudicially gruesome. He also argues that 

the district court erred by declining to merge his child kidnapping 

conviction with his aggravated murder conviction. Finally, he argues 

that his trial counsel provided constitutionally ineffective assistance 

by failing to pursue a mistrial motion related to the State‘s failure to 

test and preserve certain evidence. 

¶3 We conclude (1) that Utah Code section 76-3-207.7 is not 

constitutionally deficient, (2) that the district court did not abuse its 

discretion with respect to the various evidentiary rulings Met 

challenges, although in reaching that decision we abandon our prior 

gloss on the Utah Rules of Evidence that had implemented a more 

stringent threshold for the admission of potentially gruesome 

photographs, (3) that the court did not err in declining to merge 

Met‘s convictions, and (4) that, even assuming Met‘s trial counsel 

provided ineffective assistance, counsel‘s performance did not 

prejudice Met. We therefore affirm Met‘s child kidnapping and 

aggravated murder convictions. 

¶4 We conclude, however, that the district court erroneously 

treated life without parole as the presumptive sentence for Met‘s 

aggravated murder conviction. See UTAH CODE § 76-3-207.7 (2007).

Accordingly, we remand the case for the limited purpose of 

permitting the district court to clarify what impact its 

misapprehension of the law had on its sentencing decision or for 

resentencing on the aggravated murder charge. Finally, we affirm 

the sentence of life in prison without parole for the child kidnapping 

conviction.

BACKGROUND

¶5 On March 31, 2008, seven-year-old Hser Ner Moo (Victim) 

was reported missing. The next day, she was found dead in the 
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Opinion of the Court

3

basement of a nearby apartment. Victim‘s body was badly injured, 

and there were indications that she had been sexually assaulted.

¶6 Victim and her family were refugees from Burma, now 

known as Myanmar. The Burmese civil war of the 1980s forced 

Victim‘s parents, who are ethnically Karen, to flee to a Thai refugee 

camp.

1 In 2007, Victim and her family were relocated from Thailand 

to the Salt Lake City apartment where they were living when Victim 

was killed. 

¶7 In February 2008, Defendant Esar Met, also a Burmese 

refugee, was relocated to Salt Lake City and moved into the 

basement of an apartment in the same complex as Victim‘s family.

Met, who was Burmese but not Karen, shared the apartment with 

four Karen roommates.

¶8 Met befriended Victim and her ten-year-old friend. The two 

girls would, on occasion, visit Met‘s apartment to play games and 

watch movies. Usually ―other Karen kids‖ were also playing at the 

apartment when Victim was there, but on at least one occasion,

Victim and her friend were alone with Met. 

¶9 On March 31, 2008, Victim‘s father was at work, and her 

mother was at a dentist appointment. Victim‘s aunt testified that she 

last saw Victim around 1:00 p.m. A neighbor remembered seeing 

Victim walking in front of her apartment sometime between 11:30 

a.m. and 1:00 p.m. traveling southbound in the direction of Met‘s 

apartment. A friend of Victim also testified that sometime after her 

―morning meal but [before her] afternoon meal,‖ Victim came to her 

house to ask to play, but Victim‘s friend declined because she did 

not feel well. 

¶10 Victim‘s mother returned from her appointment that 

afternoon and noticed that Victim was missing. Victim‘s family 

_____________________________________________________________

1 See generally HAZEL J. LANG, FEAR AND SANCTUARY: BURMESE 

REFUGEES IN THAILAND 82–86 (2002) (describing the large scale forced 

migrations from Burma to Thailand). The Karen people are an ethnic 

group who originate primarily from Burma and Thailand. The Karen 

are distinct from other ethnic groups living in this area, including the 

ethnic Burmese people. In addition to having a distinct culture and 

history, the Karen speak a unique language. See Karen, 

ENCYCLOPÆDIA BRITANNICA (May 27, 2016, 10:45 AM), 

https://perma.cc/7RNU-TBDE.
STATE v. MET

Opinion of the Court

4

searched the apartment complex and the surrounding area for 

several hours. Sometime that evening, Victim‘s father went to Met‘s 

apartment and asked Met‘s roommates if they had seen Victim. The 

roommates responded that they had not. The police were contacted,

and soon police officers and volunteers embarked on a large-scale 

search of the area.

¶11 On the evening of April 1, four FBI agents knocked on the 

door of Met‘s apartment. After the agents knocked for 

approximately ten minutes, one of Met‘s roommates answered. The 

agents identified themselves, indicated that they were searching for 

Victim, and asked if they could enter and search the apartment. One 

of the roommates indicated that the agents could search for Victim.

Met‘s four roommates were in the apartment at the time, but Met 

was not.

¶12 Two agents began to search while two others stayed with 

the roommates. One of the roommates explained that Met resided in 

the apartment‘s basement. The roommate also volunteered that Met 

was not at home and that the roommates had not seen Met that day

or the day before.

¶13 Agents first searched the three-level apartment‘s upstairs 

and main floors. The agents then proceeded to the basement, which

could be accessed from the main floor by an open stairway that led 

to the basement‘s living room.

2 The basement consisted of a main

room and three smaller rooms accessible from the main room: a 

bathroom, a furnace room, and a bedroom. The first agent to enter 

the basement testified, 

I was the first one down the stairs. And I got to the 

bottom of the stairs . . . and the wall there, as I recall, 

opens up from the floor as it goes down, so I could 

start to see into the room. But once I saw in the room, 

_____________________________________________________________

2 There was no door at the top or the bottom of the stairs leading 

to the basement. Met‘s roommates testified that they generally did 

not enter the basement of the apartment, but two roommates 

testified that all of the roommates had permission to go anywhere 

they wanted in the apartment. Those two roommates also indicated 

that they stored some items, including a bike and DVDs, in the 

basement and would occasionally enter the basement to retrieve 

them. 
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Opinion of the Court

5

the first thing I noticed were these two larger brown 

spots. 

. . . .

So at first . . . I thought, well, that doesn‘t look 

good. But I thought well, maybe it could be some 

spilled substance or something, but it also, of course, 

struck me, that looks like dried blood. 

. . . [Did] you notice anything else?

Yes, I noticed a couple of things. I noticed the—the 

bed. [The condition of the bed] didn‘t look normal to 

me. I also noticed other less prevalent blood spatters on 

the floor and blood drops. And then most significant to 

me, because it looked like blood, . . . was over against 

[the] wall. 

. . . .

[The spots on the wall appeared to be] blood 

traveling, hitting the wall and then running straight 

down [the wall]. 

Two more agents confirmed what the first agent believed—that the

spots on the carpet and wall appeared to be dried blood.

¶14 One agent left the basement to contact the coordinating 

police officer as two agents continued to search the basement. After a 

search of the bedroom uncovered no significant evidence, the agents 

made their way to the bathroom. An agent testified, ―The [bathroom] 

door was a little bit ajar, not fully closed. So that‘s when I pushed it 

open. And as soon as I opened the door, I saw some blood splatter 

located immediately within the threshold walking to the bathroom.‖ 

In the bathroom, an agent also discovered a plastic bag appearing 

―to be full of blood‖ and a pair of pink and black shoes that 

―[l]ooked like they belonged to a young girl.‖ As the agent 

approached the bathroom‘s shower stall, he saw ―the foot of a young 

person‖ and then, as he got closer, ―the full body of a young female.‖ 

The body was identified as Victim. She was wearing a pink jacket 

and pink skirt and was not wearing any underwear. ―Her left wrist 

looked like it was broken in an awkward angle. And . . . her legs 

were positioned at her sides to fit her in the shower basin.‖ The 

agent testified that she was cold to the touch. An EMT later 

determined that she had been ―deceased for some time.‖
STATE v. MET

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¶15 After discovering Victim, the agents talked to Met‘s 

roommates. An agent testified that the roommates ―seemed very 

calm‖ and acted ―[t]he same way they had been during the entire 

time of the interview . . . . Nobody was visibly nervous or concerned 

or overly interested in what [the agents] were doing.‖ When asked 

about Met, one of Met‘s roommates told the agents that he believed 

Met was at his cousin‘s house in Cottonwood Heights and provided 

a phone number. 

¶16 The record contains little evidence regarding Met‘s 

whereabouts on March 31, 2008. Sometime that day, Met boarded a 

bus to his aunt‘s house in Cottonwood Heights. Met‘s uncle testified 

that he unexpectedly ran into Met around 3:00 p.m. on March 31 

when the uncle boarded a bus to return to his house from work. The 

uncle invited Met to his house.

3 That evening, Met received a phone 

call from one of Victim‘s neighbors asking whether he had taken 

Victim with him. Met apparently responded, ―I didn‘t bring her with 

me‖ and ―[S]he did not come with me.‖ Met stayed the night of 

March 31 at his aunt‘s house. On April 1, the police arrested Met on 

suspicion of Victim‘s murder. 

¶17 Officers drove Met to a police station where police 

interviewed him for more than two hours. The police engaged the 

assistance of someone they believed to be an FBI translator. 

However, the translator was neither from the FBI nor trained as a

translator. Rather, he was an acquaintance of Victim‘s parents and 

Met‘s roommates. After seeing police officers in the apartment 

complex, the translator had asked the police if he could assist 

Victim‘s parents. An officer apparently responded that he could help 

by going to the police station and offering his assistance there. 

Although no problems were noted during the interview, a later 

review of the transcript revealed that there had been significant 

translation errors. In the words of one of the interviewing officers,

―The translation was not correct. The information I thought I was 

getting from the defendant was not the same as was relayed to me. 

And the stuff I was relaying to the defendant was not getting relayed 

to him as I said it in any way.‖ During that interrogation, Met 

_____________________________________________________________

3 Met‘s aunt and uncle both testified that they did not know that 

Met was going to come to the house that day and that there were no 

standing plans, but they did state that they had previously told Met

that he was welcome to visit their house anytime.
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Opinion of the Court

7

confessed to killing Victim accidentally, but denied that he had 

sexually assaulted her.4

¶18 Met was eventually charged with aggravated murder and 

child kidnapping. The State did not seek the death penalty. Met 

moved to suppress all evidence gathered in, or stemming from, the 

search of his apartment. He argued that the warrantless search of his 

apartment violated the Fourth Amendment. The district court denied 

Met‘s motion, concluding that the warrantless search of the 

apartment was reasonable because Met‘s roommates consented to 

the search of the common areas of the apartment, including the 

basement‘s main room and bathroom. The court also concluded that 

once officers discovered blood stains in the main room of the 

basement, they were permitted to search the basement bathroom due 

to the ―exigencies of the situation.‖ 

¶19 Met also moved to suppress his interview with the police 

because he was not informed of his rights under Miranda v. Arizona, 

384 U.S. 436 (1966), and because there were ―significant deficiencies 

in the interpretation [provided] during the interview.‖ The State 

conceded that it could not use Met‘s interview testimony in its case 

in chief because the translator had not adequately advised Met of his 

Miranda rights. The court concluded that the State could not use 

Met‘s testimony in its case-in-chief but authorized the use of Met‘s 

statements for impeachment purposes if Met chose to testify.

¶20 Met moved to exclude three photographs as gruesome and 

unduly prejudicial. The district court denied the motion with respect 

to two of the photographs. One photograph shows Victim ―lying 

_____________________________________________________________

4 The interrogation was conducted at the police station and later 

translated verbatim by the FBI. According to the FBI translation of 

Met‘s interrogation, Met‘s translator implored Met as a Burmese 

―brother‖ not to lie and to tell the truth about what happened. In 

response, Met said, ―It could say accident. They can believe however 

they want . . . . I killed her. I am telling the truth.‖ Later in response 

to the question ―Did you kill her?‖ Met confessed, ―Yeah, I have to 

say that I killed her. How am I supposed to say? She died because of 

me.‖ When asked whether he had also sexually assaulted Victim, 

Met replied that ―[i]t is true that this child is dead because of me but 

I did not ruin the child. I am telling the truth. I swear.‖ He 

maintained throughout the interview that the killing was accidental 

and that he had not sexually assaulted Victim.
STATE v. MET

Opinion of the Court

8

face down in a shower stall.‖ The court determined that this 

photograph was ―highly probative‖ of the injuries Victim sustained, 

the location and position of her body, including that she was not 

wearing underwear and that her body had been washed, and the 

―struggle‖ that took place surrounding her murder. The second 

photograph is a ―clean, close-up shot of [Victim‘s] genitalia.‖ The 

court determined that the photograph was relevant to and probative 

of the question of whether Met had sexually assaulted Victim. 

¶21 At trial, the State presented the testimony of Dr. Todd Grey, 

chief medical examiner for the State and a forensic pathologist, who 

had performed Victim‘s autopsy. He testified that ―[t]he majority of 

the injuries . . . were . . . blunt force injuries. So they would be things 

like contusions or bruises, abrasions or scrapes, lacerations or tears 

in the skin, as well as a fracture . . . of the left—distal left arm.‖ 

Victim suffered injuries to her cheek, her chin, and her neck; an 

abrasion and bruising around her left temple; a complete fracture of 

her ―two bones of the [left] forearm‖; petechiae in her eyes—

hemorrhages ―very commonly associated with asphyxia‖—likely in 

this instance due to ―clothing being twisted tightly across the front of 

her neck‖; numerous injuries to her chest, which caused ―the tissues 

of th[e] central structure of her chest‖ to be pulled away ―or sheared 

off‖ of her spinal column; and a fatal tear in the right atrium of her 

heart caused by blunt force trauma to her body. Dr. Grey opined 

that Victim‘s death was a homicide, ―as a result of blunt force 

injuries‖ to her ―neck, her torso and her left wrist.‖ 

¶22 The State also called Dr. Lori Frazier to the stand. Dr. Frazier 

testified that Victim also suffered ―some type of penetrating injury 

that damaged the tissues in the upper part of the hymen and the 

anterior vaginal wall.‖ 

¶23 The State presented DNA evidence collected from the denim 

jacket Met was wearing when he was taken into custody. A forensic 

scientist, Chad Grundy, found that the two blood stains he tested 

―appeared to have originated from a single female source.‖ Grundy‘s 

testing also established that the blood on Met‘s jacket matched 

Victim‘s DNA.5 The State also collected and tested DNA evidence 

found under Victim‘s fingernails. The tests excluded Met‘s 

_____________________________________________________________

5 The tested blood samples from the denim jacket were ―clean 

sample[s],‖ meaning that they identified only a single DNA 

contributor and not a mixture of two DNA samples.
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roommates as the DNA‘s source but could not exclude Met or the 

men in Victim‘s family. 

¶24 Grundy testified that he had also tested several stains found 

in Met‘s apartment. He found human blood present in the two stains 

on the carpet of the basement‘s main floor, in the stain on the wall in 

the basement‘s main room, in the stains in the basement‘s bathroom, 

and in two stains in the stairwell leading to the basement. Grundy 

also found that a stain in the living room on the apartment‘s main 

floor, around the corner from the staircase leading to the basement, 

tested positive as human blood. DNA obtained from four of these 

stains matched Victim‘s. Additionally, Victim could not be excluded 

as the DNA contributor to the main-floor blood stain. 

¶25 Met had various injuries on his body that were consistent 

with scratching or the ―scraping or . . . clawing of a fingernail.‖ One 

particular abrasion on the inside of Met‘s thigh consisted of three 

streaks, twelve millimeters in length, with each streak parallel to the 

other. Many of these injuries were sustained in areas such as Met‘s

thigh, hip, and right calf that would ordinarily have been covered by 

Met‘s underwear or pants. A nurse testified that many of the injuries, 

because of their location and severity, were likely made when Met 

was not wearing either underwear or pants, although the nurse 

conceded that it was possible to sustain similar abrasions when 

clothed.

¶26 On the eighth day of trial, the State informed the district 

court and Met‘s counsel that it had ―just become aware of‖

―potential[ly] exculpatory testimony.‖ The prosecutor indicated that 

it had ―been his understanding . . . that there was . . . no blood of any 

sort upstairs.‖ The prosecutor testified that, contrary to his belief, the 

previous evening a crime scene investigator ―indicated that there 

was a spot of blood that they found on the carpet‖ of the top floor of 

the apartment. The prosecutor learned that the investigator had 

performed a preliminary test on the spot, which indicated that the 

spot was likely blood. The investigator and his team apparently did 

no further testing and declined to preserve that evidence because 

they believed the upstairs ―was not relevant to the crime scene.‖ The 

prosecutor stated that this was the first time he had learned of the
STATE v. MET

Opinion of the Court

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potential blood spot and that he believed, prior to the discussion, 

that the spot was betel-nut residue.6

¶27 Met‘s trial counsel indicated that he was disappointed that 

the spot had not been preserved and tested because it ―could have 

changed the case dramatically,‖ but stated that he would ―explore 

the [decision not to test the spot] the best we can on cross 

[examination] with this late notice.‖ In the midst of counsel‘s crossexamination of the crime scene investigator, counsel asked the court 

to grant a mistrial based on the State‘s failure to identify and 

preserve the potential blood spot. Later in the day and before the 

court had an opportunity to rule, Met‘s trial counsel withdrew the 

mistrial motion, explaining to the court that he did not believe he 

could establish prosecutorial misconduct under Brady v. Maryland,

373 U.S. 83 (1963). Met‘s trial counsel stated that he ―spent the lion‘s 

share[7] of today on the computer. I‘ve done actually three separate 

analyses under three separate lines of cases . . . .‖ Met‘s counsel 

testified that his research indicated that he could not meet his 

burden of demonstrating the need for a mistrial and so he did not 

think the motion was ―well taken.‖ 

¶28 The jury found Met guilty of aggravated murder and child 

kidnapping. The jury found three aggravating circumstances that 

classified Victim‘s killing as aggravated murder. First, the ―homicide 

was committed incident to one act, scheme, course of conduct, or 

criminal episode during which the defendant committed or 

_____________________________________________________________

6 A betel nut is a tree nut chewed by users that has a stimulating 

effect equivalent to six cups of coffee. It is ―believed to be one of the 

most popular mind-altering substances in the world.‖ Cindy Sui & 

Anna Lacey, Asia’s Deadly Secret: The Scourge of the Betel Nut, BBC

NEWS (Mar. 22, 2015), http://www.bbc.com/news/health-31921207.

7 This expression derives from one of Æsop‘s fables. The fable 

describes a hunting partnership between a lion, fox, jackal, and wolf. 

When the four were ready to share their spoils, the lion split the stag 

into four equal parts. The lion then stated, ―I am King Lion . . . . so of 

course I get the first part. This next part falls to me because I am the 

strongest; and this is mine because I am the bravest.‖ Stretching his 

claws, the lion finished, ―If any of you have any claim to the part that 

is left, . . . now is the time to speak up.‖ The Lion’s Share, LIBRARY OF 

CONGRESS, http://www.read.gov/aesop/141.html (last visited May 

3, 2016).
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Opinion of the Court

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attempted to commit sexual abuse of a child.‖ Second, the ―homicide 

was committed incident to one act, scheme, course of conduct, or 

criminal episode during which the defendant committed or 

attempted to commit child abuse.‖ And third, Victim was younger 

than fourteen years of age. The jury also found that in the course of 

the child kidnapping, Met caused ―serious bodily injury‖ to another,

an aggravating sentencing factor for child kidnapping.

¶29 Met moved to merge his child kidnapping conviction with 

his aggravated murder conviction. Met argued that ―there was 

simply no evidence adduced at trial of any detention or confinement 

independent from the detention inherent in the commission of the 

aggravated homicide.‖ The district court denied Met‘s motion to 

merge the two convictions. It concluded ―that the jury had sufficient 

evidence to support a separate conviction on the child kidnapping 

count in addition to the aggravated murder count.‖ 

¶30 Met also asked the court to declare Utah‘s noncapital 

aggravated murder sentencing statute unconstitutional. See UTAH 

CODE § 76-3-207.7 (2007). He contended that the statute violated, 

among other constitutional provisions, the Equal Protection Clause 

and the Due Process Clause by granting the sentencing court 

unfettered discretion in its sentencing decision, which could lead to 

arbitrary sentencing. The district court denied Met‘s motion.

¶31 The court pronounced two sentences of life in prison

without parole for Met‘s aggravated murder and child kidnapping 

convictions. The court ordered the sentences to run concurrently. At 

the sentencing hearing, the court opined that there was a 

presumptive life sentence for both Met‘s aggravated murder 

conviction and the child kidnapping conviction aggravated by the 

serious-bodily-injury finding.

¶32 Met appeals. We have jurisdiction under Utah Code section 

78A-3-102(3)(i). 
STATE v. MET

Opinion of the Court

12

ISSUES AND STANDARDS OF REVIEW

¶33 Met‘s various constitutional and statutory arguments 

attacking his sentence under Utah Code section 76-3-207.7 and 

Utah‘s sentencing structure for those convicted of aggravated 

murder are questions of law that we review for correctness. See State 

v. Reece, 2015 UT 45, ¶ 18, 349 P.3d 712; State v. Perea, 2013 UT 68, 

¶ 34, 322 P.3d 624. We afford no deference to the district court‘s legal 

conclusions. Perea, 2013 UT 68, ¶ 34.

¶34 The district court‘s denial of Met‘s motion to suppress the 

transcript of the police interrogation is a mixed question of law and 

fact, where our review is ―sometimes deferential and sometimes 

not.‖ State v. Arriaga-Luna, 2013 UT 56, ¶ 7, 311 P.3d 1028 (citation

omitted). We recently explained that the deference we afford the 

district court‘s resolution of a mixed question depends upon

(1) the degree of variety and complexity in the facts to 

which the legal rule is to be applied; (2) the degree to 

which a trial court‘s application of the legal rule relies 

on ―facts‖ observed by the trial judge, such as a 

witness‘s appearance and demeanor, relevant to the 

application of the law that cannot be adequately 

reflected in the record available to appellate courts; and 

(3) other policy reasons that weigh for or against 

granting [deference] to trial courts.

Murray v. Utah Labor Comm’n, 2013 UT 38, ¶ 36, 308 P.3d 461

(alteration in original) (citation omitted). A question is more law-like 

if it ―lend[s] itself to a consistent resolution by a uniform body of 

appellate precedent.‖ Id. ¶ 37 (citation omitted). A question is more 

fact-like if ―the trial court is in a superior position to decide it.‖ Id.

(citation omitted). Here, for example, where the district court‘s 

decision is ―based entirely on its review of the interrogation 

transcripts and the court‘s interpretation of the law,‖ the question is 

more law-like than fact-like. Arriaga-Luna, 2013 UT 56, ¶ 8. ―[W]e 

owe the district court no deference‖ when ―we are in as good a 

position as the district court to examine the transcripts and 

determine what the law is.‖ Id. We thus owe the district court no 

deference in considering the denial of Met‘s motion to suppress the 

transcript of the police interrogation. We review the court‘s decision 

for correctness. See Murray, 2013 UT 38, ¶¶ 36–40.

¶35 Met‘s contention that the district court erred in denying his 

motion to suppress evidence gathered in alleged violation of his 

Fourth Amendment rights also presents ―a mixed question of law 
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and fact.‖ State v. Fuller, 2014 UT 29, ¶ 17, 332 P.3d 937. ―While the 

court‘s factual findings are reviewed for clear error, its legal 

conclusions are reviewed for correctness, including its application of 

law to the facts of the case.‖ Id.

¶36 We review Met‘s challenge to the admission of allegedly 

gruesome photographs for an abuse of the district court‘s discretion.

State v. Bluff, 2002 UT 66, ¶ 47, 52 P.3d 1210; see also State v. Cuttler, 

2015 UT 95, ¶ 12, 367 P.3d 981; State v. Gulbransen, 2005 UT 7, ¶ 35, 

106 P.3d 734 (―The trial court‘s ultimate ruling under rule 403 of the 

Utah Rules of Evidence is reviewed for an abuse of discretion.‖). 

¶37 The district court‘s refusal to merge Met‘s child kidnapping 

conviction into his aggravated murder conviction is a mixed 

question of law and fact that is more law-like than fact-like. In 

reviewing whether the district court erred in merging or refusing to 

merge the convictions, the facts this court relies upon are of the sort 

that are ―adequately reflected in the record,‖ not the sort ―observed 

by the trial judge.‖ Murray, 2013 UT 38, ¶ 36 (citation omitted). We

thus review the district court‘s merger ruling for correctness. See

State v. Lee, 2006 UT 5, ¶ 26, 128 P.3d 1179.

¶38 Last, ―[a] claim of ineffective assistance of counsel raised for 

the first time on appeal presents a question of law‖ that we review 

for correctness. State v. Lucero, 2014 UT 15, ¶ 11, 328 P.3d 841 

(citation omitted).

ANALYSIS

I. Utah Code Section 76-3-207.7 Is Not

Constitutionally Deficient

¶39 Met argues that Utah Code section 76-3-207.7 violates the 

federal and Utah Due Process Clauses, the federal Equal Protection 

Clause, Utah‘s uniform operation of laws clause, the federal and 

state Cruel and Unusual Punishment Clauses, and his right to a trial 

by jury under the federal and state constitutions.

¶40 The Utah Code provides a dual-track structure for those 

charged with aggravated murder. Under Utah Code section 76-5-

202(3)(a), if the prosecutor files a notice of intent to seek the death 

penalty, the aggravated murder is charged as a ―capital felony.‖ 

Alternatively, if the prosecutor does not file a notice of intent to seek 

the death penalty, then the aggravated murder is charged as a 

―noncapital first degree felony.‖ Id. § 76-5-202(3)(b). 

¶41 Defendants who are convicted of aggravated murder as a 

capital felony—who are facing the possibility of death—are 
STATE v. MET

Opinion of the Court

14

sentenced by a jury, or, if the defendant requests and the State

consents, by a court. See UTAH CODE § 76-3-207(1)(c) (2007).

8 The 

sentence may be death only if a unanimous jury agrees. Id. § 76-3-

207(5)(a). If jurors do not unanimously agree to impose the death 

sentence, the statute provides for a sentence ―of either an 

indeterminate prison term of not less than 20 years and which may 

be for life‖ or for ―life in prison without parole.‖ See id. Life in prison 

without parole, however, may be imposed under section 76-3-207 

only if ten or more jurors agree. See id. § 76-3-207(5)(c). Section 207 

contains a non-exhaustive list of aggravating and mitigating 

circumstances for the jury or judge to consider to decide whether to 

impose a death sentence. See id. § 76-3-207(3)–(5). The statute also 

provides a non-exhaustive list of evidence that may be presented at

sentencing. See id. § 76-3-207(2).

¶42 Defendants who, like Met, are convicted of aggravated 

murder as a noncapital first degree felony—and who are not facing 

the possibility of death—are sentenced under Utah Code section 76-

3-207.7. See id. § 76-3-207.7 (2007). Under that section, the sentencing 

court may impose one of two sentences: life in prison without parole 

or an indeterminate prison term of twenty years to life. Id. § 76-3-

207.7(2). The statute does not provide any additional direction to 

guide the court, i.e., it does not require ten jurors to agree to a 

sentence of life in prison without the possibility of parole. We have 

stated, however, that the statute should ―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.‘‖ State v. Reece, 2015 UT 45, ¶ 78, 349 P.3d 712 (alterations in 

original) (citation omitted).

¶43 In short, the statutory protections for those who face a 

potential death sentence differ from those who do not. The bulk of 

Met‘s constitutional challenges center on the different level of 

protections afforded to those sentenced under the noncapital

_____________________________________________________________

8 We apply the sentencing statutes in effect at the time of Met‘s 

killing of Victim in 2008. However, we note that the minimum 

sentence for both capital and noncapital first degree felony 

aggravated murder has since been increased to imprisonment of 

twenty-five years to life. See UTAH CODE §§ 76-3-206(1), 76-3-207.7(2) 

(2016).
Cite as: 2016 UT 51

Opinion of the Court

15

aggravated murder sentencing statute—Utah Code section 76-3-

207.7.9 Met contends that his sentencing under Utah Code section 76-

3-207.7 violates various constitutional provisions. Many of Met‘s 

arguments, although repackaged in various ways, have been 

resolved by this court. And Met has not sustained the heavy burden 

required to convince us to abandon our precedent. See State v. 

Menzies, 889 P.2d 393, 398 (Utah 1994) (―Those asking us to overturn 

prior precedent have a substantial burden of persuasion.‖). We 

therefore reject, on stare decisis grounds, Met‘s argument that 

section 76-3-207.7 is unconstitutional under the Utah Constitution‘s 

uniform operation of laws provision. See Reece, 2015 UT 45, ¶¶ 77–80;

State v. Perea, 2013 UT 68, ¶¶ 121–23, 322 P.3d 624. We similarly 

reject his challenge that section 76-3-207.7 violates the Eighth 

Amendment‘s prohibition on cruel and unusual punishment. See 

Reece, 2015 UT 45, ¶ 80; Perea, 2013 UT 68, ¶¶ 125–27. We also reject 

his argument that section 76-3-207.7 violates the right to a trial by 

_____________________________________________________________

9 In addition to his specific arguments, Met asks us to import 

constitutional and statutory protections necessary to impose the 

death penalty to life in prison without parole sentencing 

determinations because ―the death penalty is to [life without parole] 

as [life without parole] is to all other sentences.‖ We, along with 

many other courts, have long recognized that the death penalty is 

qualitatively different from a prison sentence, even one as serious as 

life in prison without parole. See Harmelin v. Michigan, 501 U.S. 957, 

995 (1991) (setting out the ―qualitative difference between death and 

all other penalties‖ and declining to impute constitutional 

protections for death penalty sentencing to any other sentencing); 

State v. Griffin, 2016 UT 33, ¶ 17 n.4, --- P.3d --- (explaining that our 

―sua sponte prerogative‖ to correct certain unpreserved errors ―is 

limited to capital cases where the death penalty was imposed‖ 

(citation omitted)); State v. Houston, 2015 UT 40, ¶ 36, 353 P.3d 55 

(concluding that the death penalty, because of its ―finality,‖ differs 

from a sentence of imprisonment, and creates a ―need for reliability 

in the determination that death is the appropriate punishment in a 

specific case‖ (citation omitted)). Met offers no argument that this 

court has not already addressed, and he has not shouldered his

burden of convincing us that our precedent should be overturned.
STATE v. MET

Opinion of the Court

16

jury under the Fifth and Sixth Amendments. See State v. Houston, 

2015 UT 40, ¶¶ 30–32, 353 P.3d 55.10

¶44 We have not previously addressed whether section 76-3-

207.7 violates the prohibition against cruel and unusual punishment 

found in article I, section 9 of the Utah Constitution or whether it 

violates a defendant‘s state constitutional right to a jury trial under 

article I, section 10 of the Utah Constitution. Although Met invokes 

these state constitutional provisions, he does not develop an 

argument based upon them, preferring to append them to 

arguments based upon their federal counterparts. As we have

explained, ―cursory references to the state constitution within 

arguments otherwise dedicated to a federal constitutional claim are 

inadequate.‖ State v. Worwood, 2007 UT 47, ¶ 18, 164 P.3d 397. ―When 

parties fail to direct their argument to the state constitutional issue, 

our ability to formulate an independent body of state constitutional 

law is compromised. Inadequate briefing denies our fledgling state 

constitutional analysis the full benefit of the interested parties‘ 

thoughts on these important issues.‖ Id. While Met has stated that 

section 76-3-207.7 violates two Utah constitutional provisions, he 

offers us no ―distinct legal argument or analysis‖ to support his 

assertion. Id. ¶ 19. We therefore leave those arguments for a matter 

in which they are thoroughly briefed.

¶45 Met also argues that Utah Code section 76-3-207.7 violates 

the state and federal Due Process Clauses by delegating legislative 

power without ―minimum guidelines‖ to govern sentencing. Article 

V, section 1 of the Utah Constitution prohibits the Legislature from 

_____________________________________________________________

10 Met also argues that we should invoke the rule of lenity to 

reverse the sentence imposed by the sentencing court. ―The rule of 

lenity requires that we interpret an ambiguous statute in favor of 

lenity toward the person charged with criminal wrongdoing.‖ State 

v. Rasabout, 2015 UT 72, ¶ 22, 356 P.3d 1258. The rule of lenity is not 

implicated by a statute unless the statute is ambiguous. Id. A statute 

is ambiguous only when ―its terms remain susceptible to two or 

more reasonable interpretations after we have conducted a plain 

language analysis.‖ Id. (citation omitted). Utah Code section 76-3-

207.7 requires the district court to sentence the defendant to either an 

indeterminate term-of-years sentence of not less than twenty years or

to life in prison without parole. See UTAH CODE § 76-3-207.7 (2007). 

Although ambiguous options may exist in the code, an option in and 

of itself is not an ambiguity.
Cite as: 2016 UT 51

Opinion of the Court

17

―delegating  ̳core‘ or  ̳essential‘ legislative power or functions,‖ 

including the ―definition of a crime and the precise punishment 

therefor.‖ State v. Briggs, 2008 UT 83, ¶ 14, 199 P.3d 935 (citations

omitted). Furthermore, a law may violate federal due process by 

failing to ―establish minimal guidelines‖ to guide the enforcement of 

the statute. See Kolender v. Lawson, 461 U.S. 352, 358 (1983). 

¶46 Section 76-3-207.7 does not unconstitutionally delegate 

legislative power or violate the federal Due Process Clause by failing 

to establish minimum guidelines. As we have explained, section 76-

3-207.7, while relatively terse, ―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 the 

offenses.‘‖ Reece, 2015 UT 45, ¶ 78 (alterations in original) (citation 

omitted). Before a sentencing court imposes a sentence under section 

76-3-207.7, 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.‖ Id. (alteration in 

original) (citation omitted).

¶47 Section 76-3-207.7 outlines the precise punishments 

available and requires the sentencing court to consider all applicable 

circumstances and evidence prior to its imposition of a sentence. 

Met‘s contention that section 76-3-207.7 grants unfettered discretion 

to the sentencing court runs contrary to our established precedent 

requiring the sentencing court to consider all relevant evidence. See 

Reece, 2015 UT 45, ¶¶ 78–79; Perea, 2013 UT 68, ¶¶ 110–19; cf.

Williams v. New York, 337 U.S. 241, 247, 251 (1949) (concluding that a 

sentencing judge‘s ―broad discretionary power‖ in reviewing 

information in making a sentencing decision, including reviewing 

out-of-court information, does not violate the federal Due Process 

Clause and reasoning that ―modern concepts individualizing 

punishment have made it all the more necessary that a sentencing 

judge not be denied an opportunity to obtain [all] pertinent 

information‖).

11

_____________________________________________________________

11 Met also suggests due process and equal protection violations 

spring from the ―unfettered‖ discretion the statute affords 

prosecutors to decide whether to charge aggravated murder as a 

capital or noncapital offense. Met‘s suggestion, unaccompanied by 

analysis or citation to case law, does not brief the issue adequately. 

(continued . . .)
STATE v. MET

Opinion of the Court

18

¶48 Met‘s final constitutional argument questions whether the 

dual-track sentencing structure violates equal protection principles. 

―The Equal Protection Clause of the Fourteenth Amendment to the 

United States Constitution provides that no state shall  ̳deny to any 

person within its jurisdiction the equal protection of the laws.‘‖ State 

v. Lafferty, 2001 UT 19, ¶ 70, 20 P.3d 342 (quoting U.S. CONST. amend. 

XIV, § 1). ―Thus, state laws must  ̳treat similarly situated people alike 

unless a reasonable basis exists for treating them differently.‘‖ Id. 

(citation omitted). Put another way, ―[b]oth the federal and state 

constitutions require that similarly situated individuals be treated

alike under the law unless there is a reasonable basis for treating 

them differently.‖ State v. Herrera, 895 P.2d 359, 368 (Utah 1995). Met 

does not argue that the statute violates any ―fundamental right or 

makes determinations based on any suspect classification.‖ See

Lafferty, 2001 UT 19, ¶ 71. Thus, to survive constitutional scrutiny, 

the sentencing statute ―need be only rationally related to a valid 

public purpose.‖ See id.; see also Chapman v. United States, 500 U.S. 

453, 465 (1991) (reviewing an equal protection challenge to a 

sentencing statute for ―a rational basis‖); United States v. Titley, 770 

F.3d 1357, 1359 n.3 (10th Cir. 2014) (―Our cases also support rational 

basis review of equal protection challenges in the sentencing 

context.‖); McQueary v. Blodgett, 924 F.2d 829, 834 (9th Cir. 1991) 

(concluding that in the face of an equal protection challenge, a 

review of a sentencing system where two sets of prisoners were 

sentenced under two separate statutes was reviewed for ―a rational 

relation to [a] governmental purpose‖); Jones-El v. Grady, 54 F.App‘x 

856, 857 (7th Cir. 2002).

¶49 Met contends that section 76-3-207.7 treats a class of 

similarly situated individuals—those convicted of aggravated 

murder—differently by allowing some to be sentenced to life in 

prison without parole while allowing others to be sentenced to ―the 

lighter sentence of twenty years to life.‖ We have recognized that 

criminal defendants convicted of the same crime are not necessarily 

similarly situated. Perea, 2013 UT 68, ¶ 123 (―Not all those found 

guilty of aggravated murder are similarly situated.‖). Our sentencing 

scheme requires the district court to consider and weigh all relevant 

evidence when sentencing a defendant. See Reece, 2015 UT 45, ¶¶ 79, 

 

See State v. Nelson, 2015 UT 62, ¶ 39, 355 P.3d 1031 (stating that we 

require ―not just bald citation to authority but development of that 

authority and reasoned analysis based on that authority‖ (citation 

omitted)).
Cite as: 2016 UT 51

Opinion of the Court

19

84. This individualized inquiry means that a court, prior to 

sentencing, will have recognized that ―each case and each defendant 

presents a different set of facts and a different combination of 

aggravating and mitigating factors‖ and that therefore not all 

persons convicted of murder are similarly situated to one another. 

Perea, 2013 UT 68, ¶ 123. Offering a sentencing judge a range of 

options serves a valid public purpose by acknowledging that, while

defendants may be charged with similar or even identical crimes, not 

every defendant arrives at the steps of the courthouse via the same 

path. The Legislature promotes a valid public interest in creating a 

structure that permits a judge to consider the ―different set of facts 

and a different combination of aggravating and mitigating factors,‖ 

id., in sentencing each defendant, so that each defendant is treated on 

an individual basis. As we noted in another context,

[w]hile all [defendants found guilty of aggravated 

murder] are found guilty of the same crime, each case 

and each defendant presents a different set of facts and

a different combination of aggravating and mitigating 

factors. The discretion afforded to district courts 

furthers the legitimate legislative purpose of 

sentencing offenders based on the totality of the unique 

circumstances present in each case. District courts are 

authorized and empowered by the Legislature to 

review the totality of the circumstances before 

imposing a sentence. 

Id. ―Therefore, because the discretion given to district courts furthers 

the legitimate legislative purpose of sentencing offenders based on 

the severity of their particular circumstances, we hold that section 

76-3-207.7 does not violate‖ equal protection principles. Id.

¶50 Met also contends that section 76-3-207.7 treats similarly 

situated defendants differently in allowing some defendants to be 

sentenced under section 76-3-207.7 while others are sentenced under 

section 76-3-207. Met correctly asserts that these two groups of 

defendants are similarly situated in that they are all charged with the 

crime of aggravated murder. But, he argues, they are treated 

differently in the end because capital defendants are sentenced by a 

jury under a statute with additional sentencing guidelines and 

requirements due to the potential imposition of the death penalty

and non-capital defendants are sentenced by a judge under a statute 

that provides no additional guidelines or requirements. Compare

UTAH CODE § 76-3-207, with § 76-3-207.7.
STATE v. MET

Opinion of the Court

20

¶51 There is a clear difference, however, between defendants 

sentenced under these two statutes. While both groups may be 

charged with committing similar crimes, they are not similarly 

situated: defendants sentenced under section 76-3-207 face a 

potential death sentence whereas defendants sentenced under 

section 76-3-207.7 do not. The Legislature has a reasonable basis for 

treating each group of defendants differently. To overcome the 

Eighth Amendment‘s prohibition on cruel and unusual 

punishments, the Legislature is constitutionally required to impose a 

detailed process that safeguards against ―a substantial risk that [the 

death penalty] would be inflicted in an arbitrary and capricious 

manner‖ before a defendant can be sentenced to death. Gregg v. 

Georgia, 428 U.S. 153, 188 (1976) (discussing Furman v. Georgia, 408 

U.S. 238 (1972)). Utah Code section 76-3-207 is designed to satisfy

this requirement. The Eighth Amendment does not require the same 

level of protection for defendants facing the possibility of life 

imprisonment without parole. See Harmelin v. Michigan, 501 U.S. 957, 

995 (1991) (providing that individualized sentencing is required for 

capital cases, but declining to extend it to any other sentence because 

―even where the difference is the greatest, [those sentences] cannot 

be compared with death‖). Because the death penalty is different, in 

both a factual and legal sense, from life without parole, the 

Legislature has a reasonable basis for treating those facing the death 

penalty differently than those who are not. Met has failed to 

demonstrate that section 76-3-207.7 violates the federal Equal 

Protection Clause.12

¶52 We conclude that Utah Code section 76-3-207.7 and Utah‘s 

dual-track sentencing structure for those convicted of aggravated 

_____________________________________________________________

12 At oral argument, Met‘s counsel defined an additional class of 

defendants: those who were charged with aggravated murder as a 

capital offense but were not sentenced to death. Met posits that there 

is a period of time—after the jury rejects the death penalty but is still 

deliberating whether to impose life without parole—when a 

defendant is similarly situated to a defendant charged with noncapital aggravated murder. Even assuming that the class could be 

parsed this finely, the Legislature would have a rational basis for 

treating the defendants differently. At the moment of time Met 

describes, the additional protections the defendant receives are those 

that flow from the decision to seek the death penalty in the first 

instance.
Cite as: 2016 UT 51

Opinion of the Court

21

murder do not violate the various federal and state constitutional 

provisions Met raises. 

II. To Successfully Challenge the District Court‘s Decision

to Allow the Interview Transcript to Be Used for

Impeachment Purposes, Met Needed to Either Testify or

Create a Record of What His Testimony Would Have Been

¶53 Met next argues that the district court erred by ruling that 

the transcript of his police interview, though inadmissible for the 

State‘s case-in-chief, was admissible for impeachment purposes. 

While the transcript was not actually used at trial because Met 

declined to testify, Met contends that the court‘s allegedly erroneous 

decision tainted the proceedings by discouraging him from 

testifying.

¶54 It is undisputed that Met‘s interview was inadmissible as 

part of the State‘s case-in-chief because the translator assisting the 

interviewing agents grossly misinterpreted the Miranda warning 

given to Met prior to his interrogation.13 Despite this, the State asked 

the court to rule that the transcript was admissible for impeachment 

purposes should Met testify at trial. See Harris v. New York, 401 U.S. 

222, 223 (1971). Under Harris, testimony may be admissible for 

impeachment purposes, even if no Miranda warning was given, if the 

statements were given voluntarily and ―the trustworthiness of the 

evidence satisfies legal standards.‖ Id. at 223–24.

¶55 After reviewing a video recording of the interview and a 

transcript, the district court ruled that the transcript could be 

admitted for impeachment purposes because ―[Met‘s] statements to 

the officers were voluntary.‖ The court reasoned that the 

interrogation did not employ the types of coercive interrogation 

techniques that could lead to the conclusion that testimony was not 

freely given. For example, the district court noted that the interview 

lasted less than two-and-a-half hours; that the interrogation 

―techniques used by the officers in this case did not create a coercive 

_____________________________________________________________

13 For example, in the midst of translating the list of Miranda

rights, the translator informed Met ―As for you, you have to tell the 

truth,‖ and ―you have the right to tell the facts as you know.‖ In 

another exchange, the interrogating officer asked the translator to tell 

Met, ―we want to get your side of the story,‖ but the translator told 

Met, ―They are going to start and tell a new little story.‖ 
STATE v. MET

Opinion of the Court

22

environment that overcame [Met‘s] will‖; that the officers were not 

unreasonably persistent; that the ―interpretation problems, although 

pervasive throughout the interview,‖ were not coercive and did not 

cause Met to make incriminating statements; and that Met 

demonstrated a calm demeanor throughout the interview.

¶56 Met argues that his statements were not voluntary. He also 

argues that the circumstances surrounding his interview were too 

untrustworthy to allow the transcript to be used as impeachment 

evidence. The State disputes Met‘s substantive argument and also 

contends that we should decline to review the district court‘s 

decision to admit Met‘s interview for impeachment purposes 

because Met did not preserve the argument. The State argues that we 

should consider Met‘s argument unpreserved ―because he never 

took the stand and the statements were never used against him.‖ 

¶57 The State correctly notes that we have endorsed the United 

States Supreme Court‘s holding in Luce v. United States and have 

therefore, in the past, required defendants to testify to preserve a 

challenge to an evidentiary ruling.14 See State v. Gentry, 747 P.2d 

1032, 1036 (Utah 1987); Luce v. United States, 469 U.S. 38, 41–43 (1984). 

Luce concluded that to preserve a claim that the district court had 

erred by ruling that the defendant could be impeached with 

evidence of a prior conviction, the defendant needed to take the 

stand. Luce, 469 U.S. at 43; see also id. at 41 (―A reviewing court is 

handicapped in any effort to rule on subtle evidentiary questions 

_____________________________________________________________

14 We, and many other courts, speak of this requirement to testify 

in terms of preservation. Preservation appears to be an inapt label. 

Here, for example, Met preserved his argument in the normal 

meaning of our preservation rules by moving the court to suppress 

the transcript for all purposes and by specifically responding to the 

State‘s argument that the transcript should be allowed for 

impeachment. This satisfies the concerns that animate our 

preservation rules, including promoting judicial economy by 

affording the trial court the opportunity to address the alleged error 

and foreclosing the ability to create a tactical advantage by foregoing 

an objection with hopes of creating an issue for appeal. See State v. 

Larabee, 2013 UT 70, ¶ 15, 321 P.3d 1136. The problem here is not lack

of preservation but rather the lack of a record to assess whether the 

alleged error would, in actuality, have had any impact on the 

outcome of the trial. To remain consistent with the body of case law 

on this topic, we will continue to refer to this as a preservation issue.
Cite as: 2016 UT 51

Opinion of the Court

23

outside a factual context.‖). The United States Supreme Court 

reasoned that if the defendant had testified, the ―Court of Appeals 

would then have had a complete record detailing the nature of 

petitioner‘s testimony, the scope of the cross-examination, and the 

possible impact of the impeachment on the jury‘s verdict.‖ Id. at 41. 

The court also noted that when ―the defendant does not testify, the 

reviewing court also has no way of knowing whether the 

Government would have sought to impeach with the prior 

conviction.‖ Id. at 42. It thus declined to offer Luce a new trial when 

it had no way of knowing if and how the lower court‘s ruling 

impacted Luce‘s trial.

¶58 We adopted Luce in Gentry, 747 P.2d at 1036. We were 

persuaded by ―the rationale and holding of Luce,‖ that requiring a 

defendant to testify to preserve the claim ―will enable the reviewing 

court to determine the impact any erroneous impeachment may have 

had in light of the record as a whole; it will also tend to discourage 

making such motions solely to  ̳plant‘ reversible error in the event of 

conviction.‖ Id. (quoting Luce, 469 U.S. at 42).

¶59 We have not yet had the opportunity to consider whether to 

extend this requirement to cases where the underlying objection to 

the impeachment evidence focuses on a claim that a confession was 

elicited in violation of the defendant‘s constitutional rights. Many 

courts have found this distinction significant. Picking up on 

language in Luce that suggests the United States Supreme Court 

ruled on an issue that ―dealt with a preliminary ruling  ̳not reaching 

constitutional dimensions,‘‖ the Ninth Circuit Court of Appeals 

concluded that Luce‘s reasoning did not apply to a claim that use of 

an involuntary confession for impeachment violated the defendant‘s 

constitutional rights. See United States v. Chischilly, 30 F.3d 1144, 

1150–51 (9th Cir. 1994) (citation omitted) overruled on other grounds by 

United States v. Preston, 751 F.3d 1008, 1019–20 (9th Cir. 2014). Several 

other courts have reached similar conclusions. See, e.g., State v. Brings 

Plenty, 459 N.W.2d 390, 394 (S.D. 1990) (―Luce does not stand for the 

proposition that Fifth Amendment confession issues are waived if a 

defendant does not take the stand.‖); State v. Brunelle, 534 A.2d. 198, 

204 (Vt. 1987) (―Luce is not controlling because, in contrast to the case 

at bar, it did not involve constitutionally suppressed evidence.‖); 

People v. Henderson, 745 P.2d 265, 266 (Colo. App. 1987) (―Where, as 

here, the admissibility of a prior felony conviction is challenged on 

constitutional grounds, a defendant is not required to testify at trial 

to preserve the issue for review.‖).
STATE v. MET

Opinion of the Court

24

¶60 Other courts have found the distinction to be far less 

compelling. A divided Michigan Supreme Court reasoned that 

―every case in which a defendant alleges that a trial court‘s ruling 

effectively prevented him from testifying‖ presents ―constitutional 

implications.‖ People v. Boyd, 682 N.W.2d 459, 464 (Mich. 2004). 

Relying, in part, on a number of the considerations that motivated 

the Luce court—difficulty in evaluating the impact of a trial court‘s 

ruling in a vacuum, and the potential for a defendant to abuse the 

structure—the Michigan Supreme Court extended Luce‘s reach to 

alleged errors ―implicating a defendant‘s Fifth Amendment privilege 

against self-incrimination.‖ Id. at 466. Arizona and other states 

similarly extended Luce. See, e.g., State v. Conde, 846 P.2d 843, 848

(Ariz. Ct. App. 1992) (―All of the policy reasons for declining to 

consider his claim in the absence of his testimony apply whether his 

statement was coerced or . . . obtained in violation of Miranda.‖); see 

also Wagner v. State, 347 P.3d 109, 111, 116 (Alaska 2015) (concluding 

that ―by declining to testify,‖ a defendant ―failed to preserve his 

Miranda claim for appellate review‖); Jordan v. State, 591 A.2d 875, 

878 (Md. 1991) (―Although Luce involved the issue of impeachment 

by prior conviction rather than a ruling grounded on a constitutional 

right not to be impeached with an involuntary confession, we are 

persuaded that its reasoning is applicable in the instant case.‖).

¶61 We can understand the split in decisions. It is incongruous 

to require a defendant to testify to preserve an argument that she has 

a right to remain silent. But the concerns that caused us to adopt Luce

in Gentry apply equally in cases involving Fifth Amendment claims. 

It is difficult to review and assess the impact of an allegedly 

erroneous evidentiary ruling where there is no record of how the 

alleged error impacted the case. Here, for example, even assuming 

that the district court erred in ruling that the interview transcript 

could be used for impeachment, we cannot know whether, but for 

that error, Met would have testified or that Met would have testified 

inconsistently with his interview. See Luce, 469 U.S. at 42 (―[A]n 

accused‘s decision to testify  ̳seldom turns on the resolution of one 

factor‘‖ and ―a reviewing court cannot assume that the adverse 

ruling motivated a defendant‘s decision not to testify.‖ (citation 

omitted)). Nor can we assess how that testimony, whatever it might 

have been, would have changed the evidentiary picture presented to 

the jury. Id. (―Even if these difficulties could be surmounted, the 

reviewing court would still face the question of harmless error.‖).

¶62 These competing concerns cause us to take a different

approach. We do not impose Luce’s bright-line rule requiring a 
Cite as: 2016 UT 51

Opinion of the Court

25

defendant to testify in order to preserve a claim that a district court 

improperly ruled that testimony was procured in violation of a 

defendant‘s Fifth Amendment rights. But neither will we assume 

that the alleged error must have been harmful in the absence of a 

record to review. Instead, if a defendant chooses not to testify after 

the district court finds her statements admissible for impeachment, 

in order to present a persuasive argument on appeal, that defendant 

must, by some means, create and present a record in the district 

court sufficient to permit meaningful appellate review. A defendant 

who does not wish to testify could, for example, have counsel 

proffer—or provide affidavits—to create a reviewable record.15

¶63 Met cannot point us to anything in the record that suggests 

he would have testified and that his testimony would have provoked 

impeachment by his prior interview. Nor has he shown us how that 

testimony and imagined impeachment would have changed the 

evidentiary landscape. Because we cannot assess the impact of the 

district court‘s alleged error in declaring his interrogation transcript 

admissible for impeachment purposes, we decline to review the 

substance of that decision.16

_____________________________________________________________

15 We recognize that the Luce court rejected the possibility of 

creating a record by proffer out of a concern that the ―trial testimony 

could, for any number of reasons, differ from the proffer.‖ Luce, 469 

U.S. at 41 n.5. We acknowledge that concern. However, in balancing 

a defendant‘s Fifth Amendment rights against the potential for an 

inconsistent proffer, we believe that allowing counsel to create a 

record by proffer strikes the better balance by intruding less upon a 

defendant‘s Fifth Amendment rights. We also trust counsel‘s 

professional obligations and the consequences of an inconsistent 

proffer to cabin much of the potential for mischief. 

16 In a letter submitted under Utah Rule of Appellate Procedure 

24(j), Met argues for the first time that it would be ―grossly unfair‖ to 

retroactively apply a rule requiring a defendant to create a record to 

preserve a Fifth Amendment claim. By its plain language, rule 24(j) 

allows a party to advise the court of ―pertinent and significant 

authorities‖ that come to the party‘s attention. The rule is not a 

vehicle to permit a party to supplement his or her briefing with new 

arguments and, to that end, the rule requires the letter to reference 

the ―page of the brief‖ or ―a point argued orally to which the 

(continued . . .)
STATE v. MET

Opinion of the Court

26

III. The District Court Did Not Err in Determining that 

the FBI Agents‘ Warrantless Search of Met‘s Apartment 

Was Reasonable Under the Fourth Amendment

¶64 Met next argues that the district court erred by denying his 

motion to suppress. He contends that the warrantless search of his 

apartment was unreasonable within the meaning of the Fourth 

Amendment because FBI agents did not obtain valid consent and 

because ―no exigent circumstances existed requiring a warrantless 

search.‖ He contends therefore that the district court should have 

suppressed all evidence flowing from the police‘s alleged illegal

search of his apartment. The State concedes that it did not obtain a 

warrant to search Met‘s apartment but argues that the search meets 

two exceptions to the Fourth Amendment‘s warrant requirement. 

We agree. 

¶65 The Fourth Amendment provides that ―[t]he right of the 

people to be secure in their persons, houses, papers, and effects, 

against unreasonable searches and seizures, shall not be violated.‖ 

U.S. CONST. amend. IV. A fundamental tenet of the Fourth 

Amendment is that ―searches and seizures inside a home without a 

warrant are presumptively unreasonable.‖ Brigham City v. Stuart, 547 

U.S. 398, 403 (2006) (citation omitted). ―Nevertheless, because the 

ultimate touchstone of the Fourth Amendment is  ̳reasonableness,‘

the warrant requirement is subject to certain exceptions.‖ Id. (citation 

omitted).

¶66 One exception allows officers to conduct a warrantless 

search when they obtain consent to conduct the search. See State v. 

Harding, 2011 UT 78, ¶ 10, 282 P.3d 31 (citing Kentucky v. King, 563 

U.S. 452, 463 (2011)). Consent to search a home ―may come from the 

person whose property is to be searched, from a third party who has 

common authority over the property, or from a third party who has 

apparent authority to consent to a search of the property.‖ Id.

(citations omitted).

¶67 Another exception allows a warrantless search where 

exigent circumstances indicate a ―need to assist persons who are 

seriously injured or threatened with such injury.‖ Stuart, 547 U.S. at 

403. ―An action is  ̳reasonable‘ under the Fourth Amendment, 

regardless of the individual officer‘s state of mind,  ̳as long as the 

 

citations pertain.‖ Met does neither. And retroactive application was 

neither briefed nor mentioned at oral argument.
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Opinion of the Court

27

circumstances, viewed objectively, justify [the] action.‘‖ Id. at 404 

(alteration in original) (citation omitted).

¶68 The district court denied Met‘s motion to suppress because 

it determined that the agents obtained consent from Met‘s 

roommates to search the apartment‘s common areas, including the 

basement‘s main room and bathroom; that Met‘s roommates had 

―common authority‖ to consent to a search of the common areas; and 

that ―even if [Met‘s] roommates did not have common access to the 

basement bathroom, based upon the  ̳exigencies of the situation,‘ the 

agents had legal cause to search the basement bathroom without 

consent.‖ 

¶69 Met‘s challenge to the district court‘s order is twofold. First, 

Met contends that his roommate did not have common authority 

over the basement of the apartment and so could not consent to the 

police‘s search of the basement. Second, Met contends that exigent 

circumstances did not justify the search of the basement because 

police had no probable cause to believe Victim was in the apartment 

until their search of the main room of the basement. 

A. Met’s Roommate Had Common Authority to Consent to a

Search of the Main Room of the Basement

¶70 To resolve whether a third party has actual common 

authority to grant consent to a search of property, we must 

determine ―whether the third party has mutual use and control of 

the property such that the other party has  ̳assumed the risk that [the 

third party] might permit the [property] to be searched.‘‖ Harding, 

2011 UT 78, ¶ 11 (alterations in original) (quoting United States v. 

Matlock, 415 U.S. 164, 171 n.7 (1974)); see also Georgia v. Randolph, 547 

U.S. 103, 106 (2006) (―The Fourth Amendment recognizes a valid 

warrantless entry and search of premises when police obtain the 

voluntary consent of an occupant who shares, or is reasonably 

believed to share, authority over the area in common with a cooccupant who later objects to the use of evidence so obtained.‖). 

Common authority exists where there is ―mutual use of the property 

by persons generally having joint access or control for most 

purposes.‖17 Matlock, 415 U.S. at 171 n.7.

_____________________________________________________________

17 Met contends that our review of the roommates‘ actual 

authority to consent to the agents‘ search of the basement main room 

and bathroom is restricted to the facts known to the agents at the 

(continued . . .)
STATE v. MET

Opinion of the Court

28

¶71 The United States Supreme Court has, however, cautioned 

against drawing a bright-line rule to determine whether a third party 

has the authority to consent to a police search. See Randolph, 547 U.S. 

at 111. ―The constant element in assessing Fourth Amendment 

reasonableness in the consent cases . . . is the great significance given 

to widely shared social expectations, which are naturally enough 

influenced by the law of property, but not controlled by its rules.‖ Id.

The Court reasoned, 

Matlock . . . not only holds that a solitary co-inhabitant 

may sometimes consent to a search of shared premises, 

but stands for the proposition that the reasonableness 

of such a search is in significant part a function of 

commonly held understanding about the authority that 

co-inhabitants may exercise in ways that affect each 

other‘s interests.

Id.

¶72 It is undisputed that one of Met‘s roommates actually 

consented to the agents‘ search of the apartment. The only issue, 

then, is whether Met‘s roommate had the authority to consent to a 

search of the basement‘s main room and bathroom. 

¶73 The district court concluded that all of Met‘s roommates had 

common authority over and access to the main room and bathroom 

of the basement ―and gave appropriate consent to the agents to 

search that area.‖18 The district court found that each of Met‘s 

 

time the consent was given. We disagree. A court is permitted to 

look at facts not known to the officers at the time they obtain consent 

to determine whether the consenting party had actual authority to 

consent. See State v. Buhler, 52 P.3d 329, 333–34 (Idaho Ct. App. 2002) 

(holding ―that the State is not limited to relying upon information 

known to the police at the time of their warrantless entry in order to 

prove actual authority possessed by the person who consented to the 

search‖); see also United States v. Groves, 530 F.3d 506, 510 n.1 (7th Cir. 

2008) (―Of course, many of these facts were not known by the 

officers until after they entered the premises and thus those facts are 

relevant only to actual and not apparent authority to consent.‖).

18 Because we subsequently affirm the district court‘s holding that 

the agents‘ warrantless search of the basement bathroom was 

authorized by exigent circumstances, we decline to review the 

district court‘s conclusion that the roommates could and did consent 

(continued . . .)
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Opinion of the Court

29

roommates ―had equal access and control‖ over the main room of 

the basement and thus could authorize a police search of the main 

room. The district court‘s determination rested largely on testimony 

that Met‘s roommates stored personal belongings, including 

mountain bikes and DVDs, in the main room of the basement, and 

on the roommates‘ testimony that they could ―come and go‖ from 

the basement main room ―without asking permission from [Met].‖ 

¶74 Met contends that his roommates could not consent to a 

search of the basement because they did not have authority to access 

the basement. Met also contends there was no common authority 

because ―[t]he State presented no evidence that the consentor, [Met‘s 

roommate], had  ̳shared use of the premises and joint access or 

control‘ of the basement.‖ We disagree. The State presented 

sufficient evidence to establish that Met‘s roommates had common 

authority over the basement main room. See State v. Perea, 2013 UT 

68, ¶ 32, 322 P.3d 624 (stating that we review a district court‘s factual 

findings in support of a suppression ruling for clear error, which we 

will only find ―if the court‘s factual findings  ̳are not adequately 

supported by the record, resolving all disputes in the evidence in a 

light most favorable to the trial court‘s determination‘‖ (citation 

omitted)). First, the roommates‘ testimony that they stored personal 

belongings in the main room of the basement is strong evidence that 

they had joint access to and control over the basement main room. 

On appeal, Met concedes this point, admitting that the roommates 

were authorized to enter the basement. But Met attempts to argue 

that this ―limited purpose‖ entry does not confer common authority.

Beyond his failure to cite authority to support this proposition, Met 

fails to credit our holding in State v. Brown, 853 P.2d 851 (Utah 1992). 

¶75 In Brown, we reviewed the denial of a defendant‘s motion to 

suppress evidence obtained in a trailer shared by the defendant and 

two other individuals. See id. at 855. In addition to allowing the three 

individuals to reside in the trailer, the owner of the trailer also stored 

food and other materials for his employees in the ―common area‖ of 

the trailer. Id. The record also indicated that access to the common 

area of the trailer was extended to individuals beyond the three 

residents. Id. We concluded that the trailer owner had a right to 

consent to the search of the common areas of the trailer because of its 

common use by many individuals, including the owner. Id. at 856. 

 

to the agents‘ search of the basement bathroom by virtue of their 

common authority over the bathroom.
STATE v. MET

Opinion of the Court

30

¶76 Similar to Brown, the record here indicates that Met‘s 

roommates had common authority over the basement main room. 

The State presented evidence demonstrating that Met‘s roommates 

actually used the basement main room to store certain personal 

items, that one of the roommates ―used to go down [in the basement] 

to get‖ his DVDs, and testimony that Met‘s roommates could access 

the main room without first obtaining Met‘s permission. In addition, 

the basement was not enclosed or set off from the rest of the 

apartment by a door or in any other way; the basement main room 

was accessible from the main floor via an open stairway. Met 

attempts to conflate his roommates‘ general lack of need or desire to 

enter the basement with a lack of authority to enter the basement. 

Although Met‘s roommates may have infrequently accessed the 

basement main room in the short time Met resided there, there is 

sufficient evidence to indicate that they had the authority to do so if 

the need or desire arose. In light of the roommates‘ access to the 

basement main room, they possessed the authority to consent to the 

search of that area.19

_____________________________________________________________

19 Met also raises State v. Duran, 2005 UT App 409, 131 P.3d 246, 

aff’d, 2007 UT 23, 156 P.3d 795, as evidence that the district court 

should have determined that Met‘s roommates lacked common 

authority in this case. In Duran, the Utah Court of Appeals 

concluded that an owner of a trailer, who rented the trailer to her 

son, could not consent to a police search of the trailer because ―[t]he 

State presented no evidence that would support a finding that 

Mother shared the use of the [trailer].‖ Id. ¶ 12. The court reasoned, 

―[t]here is no evidence that Mother had a key to the trailer or that she 

could enter it when [her son] was not present. Without a showing of 

common authority, Mother could not give valid consent to the 

search.‖ Id.

Duran is distinguishable from this case in important respects. In 

Duran, the State ―presented no evidence‖ that the mother had the 

authority to access the trailer without her son‘s permission. See id.

Nor did the State present any evidence that the mother actually 

accessed the trailer for any purpose. Id. But here there is ample 

evidence demonstrating that Met‘s roommates could and actually 

did access the basement main room without first obtaining Met‘s 

consent.
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Opinion of the Court

31

¶77 We thus conclude that the district court did not err in 

concluding that Met‘s roommates had common authority to consent 

to the agent‘s warrantless search of the basement main room.

B. The ‘Exigencies of the Situation’ Authorized the Agents’ 

Warrantless Search of the Basement Bathroom Once They Found 

Blood in the Main Room of the Basement

¶78 Met also contends that the district court erred in concluding 

―that exigent circumstances justified the warrantless search of the 

basement.‖ The court determined that the agents‘ warrantless search 

of the basement bathroom was authorized as an exigent 

circumstance indicating a ―need to protect or preserve life or avoid 

serious injury.‖ The district court determined that once the agents 

entered the basement‘s main room and observed blood on the carpet 

and blood splatter on a wall, they were justified in searching the 

entire basement because ―they were looking for a missing child that 

could have been seriously injured.‖ 

¶79 Courts have long recognized that ―law enforcement officers 

may enter a home without a warrant to render emergency assistance 

to an injured occupant or to protect an occupant from imminent 

injury.‖ Stuart, 547 U.S. at 403. Our analysis under this standard is 

restricted to determining whether the officers‘ beliefs were ―plainly 

reasonable under the circumstances.‖ Id. at 406.

¶80 We agree with the district court that once the officers saw 

the blood on the carpet and walls, it was ―plainly reasonable‖ for 

them to conclude that exigent circumstances justified entering the 

other basement rooms without first obtaining a warrant. As the 

district court aptly described, at the time the officers became aware 

of the blood stains on the basement‘s walls and floor, ―the agents 

were not looking for a dead body; they were looking for a missing 

child that could have been seriously injured.‖ The blood would have 

suggested to a reasonable officer that someone, possibly Victim—

who at that point had been missing for fewer than thirty-six hours 

and had disappeared from the apartment complex the officers were 

searching—had been seriously injured and, if still alive, was likely in 

need of emergency assistance. Because of the potential need to 

render emergency assistance, it was objectively reasonable for the 

agents to enter the basement bathroom, which excuses their failure 

to obtain a warrant prior to entering.

¶81 In light of the combination of actual consent for the search of 

the main basement room and exigent circumstances allowing 

warrantless entry into the bathroom, the district court did not err in 
STATE v. MET

Opinion of the Court

32

denying Met‘s motion to suppress evidence obtained from the 

warrantless search of Met‘s apartment.20

IV. The District Court Did Not Err in Admitting 

Two Photographs into Evidence

¶82 Met also argues that the district court erred by admitting 

two photographs into evidence that he argues are ―gruesome and 

inflammatory.‖ We disagree; the court properly ruled that the 

photographs are admissible under rule 403 of the Utah Rules of 

Evidence. Before we analyze the district court‘s decision, however,

we clarify the standard a district court should employ to assess the 

admissibility of allegedly gruesome photographs. 

¶83 Utah Rule of Evidence 403 provides the test for evidence‘s 

admissibility. The gruesomeness test this court described in State v. 

Lafferty, 749 P.2d 1239 (Utah 1988), and the factors this court outlined 

in State v. Bluff, 2002 UT 66, 52 P.3d 1210, distract from the plain 

language of the Utah Rules of Evidence. Admissibility of allegedly 

gruesome materials should be assessed without the gloss that we 

have placed upon rule 403.

A. The Historical Development of Utah’s Gruesome-Photograph Test

¶84 It appears that the first published cases discussing the 

admissibility of arguably gruesome photographs utilized the thenapplicable version of rule 403 of the Utah Rules of Evidence. See State 

v. Woods, 220 P. 215, 220 (Utah 1923); see also State v. Poe, 441 P.2d 

512, 515 (Utah 1968) (―[I]t is within the sound discretion of the trial 

court to determine whether the inflammatory nature of such slides is 

outweighed by their probative value with respect to a fact in issue. If 

the latter they may be admitted even though gruesome.‖).21

¶85 In the 1980s, however, this court began to focus on factors 

the plain language of rule 403 did not contain and to impose 

_____________________________________________________________

20 Met argues only that exigent circumstances did not exist here; 

he raises no argument that the agents‘ search of the basement 

exceeded the proper scope or duration of an exigency-based search. 

Accordingly, we do not address those issues.

21 See generally R. COLLIN MANGRUM & DEE BENSON, MANGRUM 

& BENSON ON UTAH EVIDENCE 170–73 (2015) (describing the history 

of rule 403 of the Utah Rules of Evidence as applied to ―gruesome‖ 

photographs and videos).
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Opinion of the Court

33

additional burdens on the evidence‘s proponent. In State v. Garcia, 

this court concluded that gruesome color photographs of homicide 

victims should be reviewed to determine ―whether the viewing of 

the photographs by the jury would create a substantial danger of 

undue prejudice against the defendant, and if so, whether that 

danger substantially outweighs the photographs‘ essential

evidentiary value.‖ 663 P.2d 60, 64 (Utah 1983). The court also 

explained that ―[t]he point of the reference to  ̳essential evidentiary 

value‘ in the context of potentially prejudicial photographs of the 

victim‘s body is that such photographs would generally be 

inappropriate where the only relevant evidence they convey can be 

put before the jury readily and accurately by other means not 

accompanied by the potential prejudice.‖ Id. Then, based on Garcia, 

this court pronounced in State v. Cloud that ―potentially prejudicial 

photographs are  ̳generally inappropriate‘ and should not be 

admitted in evidence unless they have some essential evidentiary 

value that outweighs their unfairly prejudicial impact. Only after a 

determination has been made that the photographs have such value 

need the weighing be made.‖ 722 P.2d 750, 753 (Utah 1986) (citation 

omitted).

¶86 Later, in State v. Lafferty, this court created a test that we said 

would apply to ―certain categories of relevant evidence‖ with ―an 

unusually strong propensity to unfairly prejudice, inflame, or 

mislead a jury.‖ 749 P.2d at 1256. When the State attempts to admit 

certain evidence, including ―gruesome photographs of a homicide 

victim‘s corpse,‖ we held that the State must show that the evidence 

possessed ―unusual probative value.‖ Id. (emphasis added). The 

court cautioned that this evidence ―is uniquely subject to being used 

to distort the deliberative process and improperly skew the 

outcome‖ and held that ―the probative value of such evidence is 

presumed to be  ̳substantially outweighed by the danger of unfair 

prejudice.‘‖ Id. (citation omitted).

¶87 We later described a three-part test ―for reviewing the 

admissibility of allegedly gruesome photographs‖: 

First, we determine whether the photograph is 

relevant. Second, we consider whether the photograph 

is gruesome. Finally, we apply the appropriate 

balancing test. If the photograph is gruesome, it should 

not be admitted unless the State can show that the 

probative value of the photograph substantially 

outweighs the risk of unfair prejudice. If the 

photograph is not gruesome, it should be admitted 
STATE v. MET

Opinion of the Court

34

unless the defendant can show that the risk of unfair 

prejudice substantially outweighs the probative value 

of the photograph.

State v. Gulbransen, 2005 UT 7, ¶ 34, 106 P.3d 734 (citation omitted). 

¶88 To guide courts in the determination of whether a 

photograph is gruesome, we eventually articulated a number of 

nonexclusive factors for consideration:

First, we consider whether the photograph is in color 

or black and white, because color photographs are 

generally more disturbing because of their ability to 

provide the viewer with vivid images of 

blood, wounds, bruising, and the like. . . . Color alone 

is not determinative, however. . . . Second, we consider 

whether the photograph is an enlargement or close-up 

shot, again, because enlarged photographs and closeups show greater detail and therefore are often more 

disturbing than a life-like view. . . . Also, an 

enlargement or close-up may give a distorted 

impression of the thing photographed. Third, we 

consider when the photograph was taken in relation to 

the crime and whether it depicts the victim as found at 

the crime scene. . . . Fourth, we consider whether other 

details in a photograph, aside from the victim, may 

render a photograph gruesome [because] the 

composition in the photograph may exacerbate the 

photograph‘s impact on the viewer.

State v. Bluff, 2002 UT 66, ¶ 43, 52 P.3d 1210 (alterations in original) 

(citation omitted). ―The purpose of considering these factors‖ we 

held, ―is to identify photographs that have a tendency to  ̳unfairly 

prejudice, inflame, or mislead the jury.‘‖ Id.

B. The Proper Standard for Assessing the Admissibility

of Allegedly Gruesome Photographs

¶89 This case presents the opportunity to explicitly abandon the 

test that Lafferty, Bluff, and Gulbransen describe. All relevant 

photographs, regardless of their alleged ―gruesomeness,‖ are subject 

to the balancing test set out in rule 403. Thus, upon a challenge to the 

admissibility of a photograph, the court ―may exclude relevant 

evidence if its probative value is substantially outweighed by a 

danger of one or more of the following: unfair prejudice, confusing 

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

needlessly presenting cumulative evidence.‖ See UTAH R. EVID. 403.
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Opinion of the Court

35

The burden rests on the shoulders of the party seeking to exclude the 

photograph to prove that its potential for unfair prejudice

substantially outweighs its probative value.

¶90 Because we disavow the need for a threshold determination 

of gruesomeness, we also abandon the factors Bluff discussed as any 

sort of formal test. That is not to say that the factors identified in our 

prior cases should be forever consigned to the dust-bin. Indeed, a 

district court may consider the unfair prejudice that might flow from 

a photograph that depicts a close-up or enlarged view of a wound. 

But parties are not required to view the factors Bluff discussed as a 

mandatory checklist for admission, and courts should not treat them 

as factors to be weighed against one another.

22 Rather, these 

considerations, if used, must be utilized to inform the ultimate rule 

403 test—whether the probative value of a photograph is 

substantially outweighed by a danger of unfair prejudice or the other 

considerations rule 403 describes.

C. The District Court Did Not Err in Admitting the Two 

Photographs into Evidence

¶91 The first photograph Met challenges

depicts [Victim] lying face down in a shower stall. Her 

face is not visible. The top of [Victim‘s] head is not 

depicted in the photo, nor are her arms; however, one 

wrist and one hand are showing. She is wearing a pink 

coat and a pink skirt. Her skirt is raised to show that 

she is not wearing any underwear. Her legs are pushed 

up in a bent position so that her knees are above her 

waist. The photo does not show any blood or obvious 

bruising or wounds on the body.

The second photograph ―depicts a clean, close-up shot of [Victim‘s] 

genitalia.‖ The photo does not include ―blood or other open or 

_____________________________________________________________

22 We recently reached a similar conclusion about the so-called 

Shickles factors in State v. Cuttler, 2015 UT 95, ¶ 18, 367 P.3d 981. 

There, we noted that the ―Shickles factors should not limit the 

considerations of a court when making a determination of evidence‘s 

admissibility under rule 403.‖ Id. But we also instructed that ―this is 

not to say that the Shickles factors, taken individually, have no place 

in a rule 403 analysis.‖ Id. ¶ 19. 
STATE v. MET

Opinion of the Court

36

graphic injuries.‖ The district court ruled that both photographs 

were admissible under the Utah Rules of Evidence. 

¶92 The court found the first photograph was relevant under 

rule 401 because ―[i]t shows, among other things, the clothes 

[Victim] was wearing at the time she died, the location of [Victim‘s] 

body, the position she was in, and that she was not wearing any 

underwear—evidence relevant to some of the aggravating factors 

associated with the aggravated murder charge.‖ The court also noted 

that the photograph, together with other photographs, demonstrates 

that a struggle took place upstairs and extended to the basement 

bathroom and that ―shower water was run over [Victim‘s] body.‖ 

¶93 The court also found that the first photograph satisfied rule 

403—i.e., that its probative value is not substantially outweighed by 

the danger of unfair prejudice.23 See UTAH R. EVID. 403. It reasoned, 

―The photograph is highly probative, and the Court does not 

perceive that the photo will lead a jury to be so shocked and angry 

. . . that they will be overwhelmed by emotion and be unable to fairly

judge the facts of the case.‖

¶94 The court found the second photograph to be relevant 

because the photograph showing ―the three-dimensional nature of 

the wound is necessary to show penetration, an element of some of 

the aggravating factors associated with the charge of aggravated 

murder.‖ The court also determined that the photograph satisfied 

rule 403 because it was a clean photograph, highly probative of 

Victim‘s genital injury, and because viewing the photograph would 

not ―lead the jurors to become so angry or upset that they [would] be 

unable to fairly judge the facts of the case.‖

¶95 Met does not challenge the relevance of the photographs, 

but argues that the district court should have excluded them because 

they were ―gratuitous, unnecessary, [and] inflammatory and 

prejudicial.‖

¶96 Our standard of review prevents us from overturning a 

district court‘s rule 403 evidentiary ruling unless the district court

abused its discretion. See State v. Cuttler, 2015 UT 95, ¶ 12, 367 P.3d 

_____________________________________________________________

23 The district court applied the ordinary rule 403 balancing test, 

rather than the ―gruesomeness‖ test set out in Lafferty, which we 

now abandon, to the two photographs because it concluded that the 

two photographs were not gruesome.
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Opinion of the Court

37

981. A district court abuses its discretion under rule 403 only where 

it applies the wrong legal standard or its decision ―is beyond the 

limits of reasonability.‖ Id. (citation omitted). Met argues that the 

district court applied the wrong legal standard by failing to review 

the photographs under the gruesomeness standard in Lafferty. We 

need not review the district court‘s determination that the 

photographs were not gruesome within the meaning of Lafferty 

because we conclude that the test set out in Lafferty is no longer good 

law and because the district court determined the admissibility of 

the photographs under the correct legal standard—the balancing test 

set out in rule 403.

¶97 We also reject Met‘s argument that the district court erred 

in its application of rule 403. The two photographs, while unpleasant 

to view, have probative value. The photographs support the State‘s

contentions that Victim had been sexually assaulted; that her 

underwear had been removed; that a lengthy confrontation took 

place between Victim and her assailant; that Victim‘s body was wet, 

demonstrating that the assailant likely attempted to wash evidence 

from Victim; and the condition and location of Victim‘s body. The 

court did not err in concluding that the photographs had probative 

value. See State v. Renzo, 443 P.2d 392, 397 (Utah 1968) (―While the 

pictures admitted in evidence might be improper to show outside of 

the courtroom, they afforded mute evidence of the depravity of the 

one who killed the victim. This evidence was material and 

relevant.‖). 

¶98 Nor has Met shown that the district court abused its 

discretion by concluding that the photographs did not present risk of 

unfair prejudice. Met contends the evidence should have been 

excluded because one showed the Victim ―laying crumpled up, 

lifeless in a shower stall‖ and the other is a ―particularly horrific 

photo of [Victim‘s] vaginal opening, in gruesome and horrific 

detail.‖ Met complains that both photographs were projected onto a 

screen for the jury‘s view. The district court concluded the first 

photograph is not unduly prejudicial because it does not show the 

Victim‘s face, open wounds, physical injuries, or blood. The second 

photograph, according to the district court, is a sterile depiction of 

Victim‘s genitalia, devoid of blood or open injuries. The district court 

ultimately concluded that the photographs are not so graphic that 

they ―will lead the jurors to become so angry or upset that they will 

be unable to fairly judge the facts of the case.‖ Met has not met his 

burden of establishing that these conclusions fell outside the bounds 

of the district court‘s discretion.
STATE v. MET

Opinion of the Court

38

V. The District Court Correctly Determined that Met‘s Child 

Kidnapping Conviction Does Not Merge with His Aggravated 

Murder Conviction

¶99 Met next contends that the district court erred by failing to 

merge his child kidnapping conviction with his aggravated murder 

conviction. The district court denied Met‘s motion to merge the 

convictions because ―sufficient evidence‖ supported ―a separate 

conviction on the child kidnapping count in addition to the 

aggravated murder count.‖24

¶100 The doctrine of common law merger exists to prevent a 

criminal defendant from being ―punished twice for conduct that 

amounts to only one offense, a result contrary to protections against 

double jeopardy.‖ State v. Lee, 2006 UT 5, ¶ 31, 128 P.3d 1179. We 

have noted that some ―crimes may be so related that they must 

merge even though neither is a lesser included offense of the other.‖ 

Id. In State v. Finlayson, this court adopted a test to determine when a 

conviction based on a detention ―incidental to‖ another crime should 

be merged with the related crime:

[I]f a taking or confinement is alleged to have been 

done to facilitate the commission of another crime, to 

be kidnaping the resulting movement or confinement:

(a) Must not be slight, inconsequential and merely 

incidental to the other crime;

(b) Must not be of the kind inherent in the nature of 

the other crime; and

(c) Must have some significance independent of the 

other crime in that it makes the other crime 

substantially easier of commission or substantially 

lessens the risk of detection.

2000 UT 10, ¶ 23, 994 P.2d 1243 (alteration in original).

_____________________________________________________________

24 The district court also denied the motion because it concluded 

Utah Code section 76-5-202(5) prevented the merger of Met‘s two 

convictions. Met does not appear to challenge this conclusion, but 

the State has not asked us to affirm on this alternative ground. 

Because neither party has briefed the issue, we confine our analysis 

to Met‘s contention that the convictions should be merged under 

State v. Finlayson, 2000 UT 10, ¶ 23, 994 P.2d 1243.
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Opinion of the Court

39

¶101 In Finlayson, we reversed the defendant‘s conviction for 

aggravated kidnapping while affirming his convictions for forcible 

sodomy and rape. See id. ¶ 1. Finlayson sexually assaulted a college 

classmate. Id. ¶¶ 2–4. Finlayson detained the victim for a period of 

time after the sexual assault and prevented victim‘s several attempts 

to escape from the apartment. Id. ¶ 4. Later, Finlayson drove victim 

around in the car for approximately an hour until he dropped the 

victim off at her apartment. Id. ¶ 5. 

¶102 We concluded that ―Finlayson‘s detention of the victim up 

to the time of the rape and sodomy was incidental to the assault, 

rather than having an independent significance.‖ Id. ¶ 23. 

Finlayson‘s ―carrying the victim into the bedroom, handcuffing her, 

and physically preventing her escape while the sex crimes were in 

progress constituted a detention that was  ̳slight, inconsequential 

and merely incidental to the other crime[s].‘‖ Id. (alteration in 

original). We reasoned that ―to hold otherwise would transform 

virtually every rape and robbery into a kidnapping as well.‖ Id. We 

also noted that Finlayson‘s actions after the assault—detaining the 

victim for ten minutes before driving her home and driving her 

home for at least half an hour longer than necessary, by a circuitous 

route, with a jacket over her head—had independent significance 

from the detention inherent in sexual assault. Id. ¶ 32–33. We found, 

however, that the detention did not transform the kidnapping into 

an aggravated kidnapping because Finlayson did not act with the 

intent to facilitate his flight from the assault. Id. ¶ 33.

¶103 In State v. Lee, we examined whether a defendant‘s 

kidnapping conviction should merge with his aggravated assault 

conviction. See 2006 UT 5, ¶ 1, 128 P.3d 1179. Lee approached two 

eighteen-year-old women who were walking on the side of a 

highway. Id. ¶ 3. After the two declined Lee‘s offer to ―party,‖ Lee

grabbed and sexually assaulted one of the women. Id. ¶ 4. The 

women escaped, but Lee caught up with them. Id. The defendant 

approached the pair from behind and grabbed one of the women by 

the hair, ―slammed her to the pavement,‖ and then ―proceeded to 

drag her by the hair across‖ the highway to an alley between two 

buildings. Id. Lee kicked the woman multiple times in the head, 

―rolled her over, pulled down her pants, and got on top of her.‖ Id.

After the second woman intervened, the two were able to escape 

from the defendant. Id. ¶ 5. Lee was eventually arrested, charged, 

and convicted of two counts of aggravated assault and one count of 

aggravated kidnapping. Id. ¶ 10. 
STATE v. MET

Opinion of the Court

40

¶104 Lee argued that the district court plainly erred by failing to 

merge his aggravated kidnapping conviction into his aggravated 

assault conviction. He claimed that ―any kidnap[p]ing . . . was 

merely a component of the corresponding assault; it was incidental 

to, and indeed indistinguishable from, the assault.‖ Id. ¶ 25. We

rejected that argument and concluded that ―dragging [the victim] 

across a highway by her hair was not  ̳slight, inconsequential and 

merely incidental to‘ the assault Lee had already commenced against 

her.‖ Id. ¶ 34 (citation omitted). Nor was the kidnapping ―inherent in 

the nature of‖ the assault; we noted that ―most assaults do not 

involve the relocation of the victim from one site to another.‖ Id. We 

also concluded that the kidnapping was independently significant 

from the assault because it allowed Lee to relocate the victim away 

from her friend, ―thereby rendering further assault, or even rape, 

 ̳substantially easier of commission‘‖ and because it significantly 

reduced the potential that defendant‘s crime would be detected. Id.

(citation omitted).25

_____________________________________________________________

25 It is not immediately apparent how to distinguish the detention 

in Finlayson—which we found to have no independent significance—

from the detention in Lee—which we concluded supported a 

separate kidnapping conviction. Finlayson moved the victim from 

an unidentified room in his apartment to his bedroom, where he 

handcuffed her; Lee dragged a victim across Highway 40 to an alley 

separating two buildings. The different conclusions might be 

explained by our observation that ―[t]he only argument asserted by 

the prosecutor at trial in support of the aggravated kidnapping 

charge was defendant‘s handcuffing of the victim.‖ Finlayson, 2000 

UT 10, ¶ 13. So the question of whether relocating the victim 

possessed independent significance was not presented at trial or on 

appeal.

Finlayson also does not adequately explain why we concluded 

that the detention—including handcuffing the victim—was merely 

incidental and did not make ―the other crime substantially easier of 

commission.‖ Id. ¶ 23 (citation omitted). Our recitation of the facts 

recounts that Finlayson‘s victim had ―made several unsuccessful 

attempts to escape‖ until Finlayson ―handcuffed her.‖ Id. ¶ 4. 

Perhaps the results in Finlayson and Lee cannot be easily reconciled

and we have not yet had the opportunity to reconsider our 

conclusion that handcuffing the victim in response to one of ―several 

unsuccessful attempts to escape‖ was ―incidental to the assault, 

(continued . . .)
Cite as: 2016 UT 51

Opinion of the Court

41

¶105 On appeal, Met contends there was ―no proof that any 

detention exceeded that necessary to commit the assault and 

homicide.‖ The district court, applying the Finlayson test and Lee’s 

reasoning, correctly concluded that Met‘s detention of Victim had 

significance independent from the detention involved in her murder. 

¶106 First, Met‘s kidnapping of Victim was more than ―slight, 

inconsequential and merely incidental to‖ the murder. See Finlayson, 

2000 UT 10, ¶ 23. The district court noted that ―the crime scene 

evidence shows that [Victim] and [Met] had an extended 

confrontation,‖ that ―the blood scene evidence shows that [Victim] 

was moved throughout the downstairs of the apartment,‖ and that a 

―trail of blood led from the bottom of the stairs into the downstairs 

bathroom where [Victim‘s] body was later found.‖ Moreover, 

medical experts opined that Victim was alive when she was sexually 

assaulted and that Victim had suffered many injuries that were nonlife threatening and independent from those that caused her death. 

The sexual assault and relocation constituted, in the district court‘s 

words, ―a detention apart from the time that it took to cause the 

homicide.‖

¶107 Second, the district court did not err in concluding that a 

detention of the kind at issue here is not ―inherent in the nature‖ of 

murder. See id. As noted above, Met engaged in a number of actions 

that were extraneous to the murder: he sexually assaulted Victim 

and inflicted numerous non-life-threatening injuries upon her. Met‘s 

kidnapping and relocation of Victim are not so intertwined with the 

murder that we can say that the former are inherent in the nature of 

the latter.

¶108 Last, the district court correctly concluded that the 

detention had ―some significance independent of the other crime in 

that it makes the other crime substantially easier of commission or 

substantially lessens the risk of detection.‖ See id. The court noted 

that evidence ―showed that the assault began somewhere on the 

stairs of the apartment and ended in the bathroom. Had the assault 

begun and ended at the bottom of the stairs, [Met‘s] room-mates 

may have seen [Victim] as soon as they returned home.‖ This 

 

rather than having an independent significance.‖ Id. ¶¶ 4, 23. Or 

perhaps we need to, in the appropriate case, examine the concerns 

that motivated us to adopt the doctrine of common-law merger, 

assess the continued potency of those concerns, and evaluate 

whether Finlayson continues to be the correct test to address them.
STATE v. MET

Opinion of the Court

42

allowed the district court to properly decide that Met‘s detention of 

Victim substantially lessened the risk of detection and infused the 

detention with significance independent of the murder.

¶109 The district court did not err in declining to merge Met‘s 

child kidnapping and aggravated murder convictions. Victim‘s 

detention was sufficiently independent of her murder such that Met 

is not being punished twice for the same conduct.

VI. Met Was Not Prejudiced by His Trial Counsel‘s Decision to 

Withdraw the Mistrial Motion

¶110 Met also contends that his trial counsel provided 

constitutionally ineffective assistance by withdrawing a mistrial 

motion based on a crime scene investigator‘s failure to test or 

preserve a spot, which may have contained blood, found on the 

upstairs floor of Met‘s apartment. 

¶111 On the eighth day of trial, a prosecutor notified the district 

court and opposing counsel of potentially exculpatory evidence. The 

prosecutor stated that he learned the previous night that a crime 

scene investigator had tested a reddish-brown spot on the upstairs 

floor of the apartment and preliminary tests had indicated that it was 

blood. The investigator and his team did not conduct further testing

of, or otherwise preserve, the spot because they believed that the 

upstairs was not a relevant part of the crime scene. Prior to the 

revelation, the prosecutor had apparently been under the impression 

that the spot was betel-nut residue. Met‘s trial counsel initially 

pursued a mistrial motion based on the State‘s failure to test and 

preserve the evidence, but later withdrew that motion, representing 

to the court that further research had suggested that the motion

would not succeed.

¶112 A defendant‘s Sixth Amendment right to counsel 

embraces the right to the effective assistance of counsel. See McMann 

v. Richardson, 397 U.S. 759, 771 n.14 (1970). Under Strickland v. 

Washington, a defendant must meet a two-part test to effectuate an 

ineffective assistance of counsel claim. See 466 U.S. 668, 687 (1984). 

First, ―the defendant must show that counsel‘s performance was 

deficient.‖ Id. This requires a showing ―that counsel‘s representation 

fell below an objective standard of reasonableness.‖ Id. at 688. 

Second, ―the defendant must show that the deficient performance 

prejudiced the defense.‖ Id. at 687. ―This requires showing that 

counsel‘s errors were so serious as to deprive the defendant of a fair 

trial, a trial whose result is reliable.‖ Id. ―Unless a defendant makes 

both showings, it cannot be said that the conviction . . . resulted from 
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Opinion of the Court

43

a breakdown in the adversary process that renders the result 

unreliable.‖ Id.

¶113 Moreover, we ―indulge in a strong presumption that 

counsel‘s conduct [fell] within the wide range of reasonable 

professional assistance, and that, under the circumstances, the 

challenged action might be considered sound trial strategy.‖ State v. 

Houston, 2015 UT 40, ¶ 70, 353 P.3d 55 (alteration in original) 

(citation omitted). This presumption accounts for the widely varying 

―circumstances faced by defense counsel [and] the range of 

legitimate decisions regarding how best to represent a criminal 

defendant.‖ Id. (alteration in original) (citation omitted). 

¶114 Even assuming, however, that Met‘s trial counsel‘s failure 

to pursue the mistrial motion was deficient, we conclude that Met 

cannot establish that he was prejudiced by his trial counsel‘s failure 

to pursue the mistrial motion. To establish prejudice under 

Strickland, Met must demonstrate ―that there is a reasonable 

probability that, but for counsel‘s unprofessional errors, the result of 

the proceeding would have been different.‖ 466 U.S. at 694. This 

probability must be sufficient to ―undermine [our] confidence in the 

outcome‖ of the proceeding. Id. And even viewing the destroyed 

evidence most favorably to Met, we cannot with confidence say that 

the result in this case would have been different.

¶115 Substantial evidence ties Met to the Victim‘s murder. Met 

had a relationship with Victim. Victim was discovered in Met‘s 

bathroom. Multiple spots of Victim‘s blood were found on the denim 

jacket Met wore the night he was arrested. Met was identified as a 

possible source of DNA found under Victim‘s fingernails, while 

Met‘s roommates were ruled out as contributors. Met also had 

various injuries on his inner thigh, hip, and calf that were consistent 

with scrapes caused by fingernails. 

¶116 Moreover, the unpreserved spot was located far away 

from the other evidence of Victim‘s murder. Met does not articulate 

how this spot, even assuming it was blood, would have affected the 

proceedings. Met does not provide us with the argument that he 

would have made had he known about the blood spot nor does he 

attempt to explain how this evidence would have changed his 

approach at trial or the trial‘s outcome. And we are not convinced—

given the entirety of the evidentiary picture presented at trial—that 

the proceedings in this case would have been impacted. Thus, even 

assuming that Met‘s trial counsel provided ineffective assistance, our 

confidence in the jury‘s verdict is not undermined. 
STATE v. MET

Opinion of the Court

44

VII. The District Court‘s Misstatement of Law

¶117 Met argues that the district court erred in sentencing him 

on the aggravated murder charge because it mistakenly believed that 

life without parole was the presumptive sentence for aggravated 

murder. During sentencing, the court correctly determined the 

presumptive sentence for Met‘s child kidnapping conviction with 

aggravating circumstances to be life in prison without parole. See

UTAH CODE § 76-5-301.1(3)(b). But the court incorrectly stated that

the presumptive sentence for Met‘s aggravated murder conviction 

was life in prison without parole. The court then sentenced Met to 

life in prison without the possibility of parole for his aggravated 

murder conviction. The court ordered the two life-without-parole 

sentences to be served concurrently.

¶118 Contrary to the court‘s statement, Utah Code section 76-3-

207.7 provides that those convicted of noncapital aggravated murder 

shall be sentenced to ―life in prison without parole[] or an 

indeterminate prison term of not less than 20 years and which may 

be for life.‖ UTAH CODE § 76-3-207.7 (2007) (emphasis added). The 

statute‘s plain language does not contain the presumption the 

district court described. Rather, it is within the court‘s discretion, 

after considering and weighing the applicable sentencing factors, to 

sentence Met to either an indeterminate term of not less than twenty

years or for a term of life in prison without parole.

¶119 We have previously considered how to proceed in a 

similar circumstance. In State v. Reece, the defendant argued that the 

sentencing court abused its discretion by sentencing him to life in 

prison without parole based on the incorrect belief that that sentence

was the presumptive sentence under Utah Code section 76-3-207.7.

2015 UT 45, ¶ 81, 349 P.3d 712. The sentencing court imposed a

sentence of life in prison without parole after considering ―the 

totality of the circumstances‖ and weighing the aggravating and 

mitigating circumstances. Id. ¶ 84. The court‘s later post-trial ruling, 

however, stated that life in prison without parole ―was the 

presumptive sentence.‖ Id. We agreed that this was an incorrect 

interpretation of the statute and noted ―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.‘‖ Id. ¶ 81 (citation omitted).

¶120 Although we determined that the sentencing court had 

misconstrued the statute, we could not discern whether the 

sentencing court‘s incorrect understanding of the law had affected its 

sentencing decision. See id. ¶¶ 82–84. To resolve this ambiguity, we 
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Opinion of the Court

45

remanded the sentencing decision to the district court. Id. ¶ 84. We 

directed the sentencing court to first ―determine whether its 

incorrect reading of the sentencing statute affected its decision to 

impose [life in prison without parole].‖ Id. If the court determined 

that its incorrect statement of law had no effect on its sentencing 

decision, no further action by the court was required. See id. If,

however, the sentencing judge determined that the incorrect 

understanding of the statute did impact its sentencing decision, then 

we directed the court to vacate the original sentence and ―hold a new 

sentencing hearing.‖ Id.

¶121 Similarly here, we remand the issue to the district court to 

allow the original sentencing judge to determine whether the

incorrect statement affected the decision to impose life in prison

without parole on the aggravated murder conviction. If the original 

sentencing judge concludes that it did, then the court must vacate 

the aggravated murder sentence and resentence Met on that 

conviction. If the original sentencing judge is unavailable or 

otherwise unable to consider the remanded issue, then the newly 

sitting judge must vacate the sentence and resentence solely on the 

aggravated murder conviction.

26

CONCLUSION

¶122 We affirm Met‘s child kidnapping and aggravated murder 

convictions. We again conclude that Utah Code section 76-3-207.7 is 

not unconstitutional. Met has also not demonstrated that the district 

court erred in the course of the trial in a manner that prejudiced him. 

We also affirm the district court‘s sentence of life in prison without 

parole on Met for the child kidnapping conviction. We remand,

however, the court‘s sentence of life in prison without parole for 

Met‘s aggravated murder conviction. The district court misstated the 

law by indicating that section 76-3-207.7 creates a presumptive life

sentence without parole for those convicted of noncapital aggravated 

murder. Section 76-3-207.7 does not in fact provide for a 

presumptive life sentence without parole but rather grants the 

sentencing court reasonable discretion to impose either an 

_____________________________________________________________

26 We again note that we affirm the district court‘s sentencing of 

Met to life in prison without parole for the child kidnapping 

conviction. We remand only the district court‘s sentencing of Met for 

the aggravated murder conviction.
STATE v. MET

A.C.J. LEE: concurring in part and concurring in the judgment

46

indeterminate term of year sentence not less than twenty years or a 

life sentence without parole. See UTAH CODE § 76-3-207.7 (2007). We 

note that the court‘s discretion is bound by other statutory 

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.‘‖

State v. Reece, 2015 UT 45, ¶ 78, 349 P.3d 712 (alterations in original) 

(citation omitted).

¶123 We affirm the imposition of life in prison without parole 

as the sentence on the child kidnapping conviction. We remand the 

case to the district court for the limited purpose of permitting the 

original sentencing judge to examine whether the misstatement of 

law had a substantive effect on its sentencing decision with respect 

to the aggravated murder conviction. If the misstatement had a 

material effect, or if the original sentencing judge is not available, the

district court should consider whether Met should be sentenced to 

―life in prison without parole[] or an indeterminate prison term of 

not less than 20 years and which may be for life.‖ See UTAH CODE § 

76-3-207.7 (2007) (emphasis added).

ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring 

in the judgment:

¶124 I concur in the judgment of the court and also in the 

majority opinion in large part. I write separately only to articulate a 

different basis for rejecting the argument that Mr. Met‘s conviction 

on child kidnapping does not merge with his aggravated murder 

conviction. See supra ¶¶ 99–109.

¶125 The majority rejects this claim under the ―common-law 

merger‖ standard set forth in State v. Lee, 2006 UT 5, ¶ 31, 128 P.3d 

1179, and State v. Finlayson, 2000 UT 10, ¶ 23, 994 P.2d 1243. Yet the 

court acknowledges that our opinions in these cases may not be 

reconcilable, and adverts to the possible ―need,‖ in an ―appropriate 

case,‖ to ―examine the concerns that motivated us to adopt the 

doctrine of common-law merger‖ and to ―evaluate whether Finlayson

continues to be the correct test‖ to ―address‖ those concerns. Supra 

¶ 104 n.25.

¶126 In my view this is the ―appropriate case.‖ The court‘s 

analysis, in my view, highlights fundamental problems with our 

doctrine of common-law merger. Our application of the Lee-Finlayson

test underscores its unworkability. And it highlights a threshold 
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A.C.J. LEE: concurring in part and concurring in the judgment

47

deficiency in the whole enterprise of ―common-law merger,‖ which 

is that we have no common-law power in a field governed by 

statute.

¶127 The parties have accepted the viability of the Lee-Finlayson

test and have confined their arguments to the proper outcome of the 

case under that test. But the basis and validity of the test is fair game 

in a case in which we are asked to apply it. We cannot apply the test 

without describing its content, and we cannot describe its content 

without identifying its basis in law. If we have reason to question the 

basis for a common-law test we are asked to apply, we can—and 

should—do so.27

¶128 I would do so here. I would consider (1) whether we have 

the power to articulate a common-law merger test in the face of a 

governing statute, and (2) if so, whether the Lee-Finlayson test is an 

appropriate means of exercising that power. I will outline my 

tentative views on these questions here. I will first articulate the 

grounds for questioning our authority to exercise common-law 

power in this field, and then identify some concerns with the 

unworkability of the Lee-Finlayson formulation of the operative test.

I

¶129 We have held ―that, in some factual scenarios, crimes may 

be so related that they must merge‖ even where merger is not 

required by the constitution or by statute. See Lee, 2006 UT 5, ¶ 31. 

―Where two crimes are defined narrowly enough that proof of one 

does not constitute proof of the other, but broadly enough that both 

may arise from the same facts,‖ we have said that ―merger may be

appropriate.‖ Id. The most common application of this premise has 

been in cases involving sexual assault and kidnapping. We have said 

that ―virtually every rape . . . involves a necessary detention.‖ 

Finlayson, 2000 UT 10, ¶ 19. ―[A]bsent a clear distinction‖ between 

_____________________________________________________________

27 See Winward v. State, 2012 UT 85, ¶ 43, 293 P.3d 259 (Lee, J., 

concurring in the judgment) (explaining the basis for reaching the 

question whether a common-law ―egregious injustice‖ exception had 

been preempted by the Post-Conviction Remedies Act even when 

the parties accepted the exception in their briefing; noting that ―[w]e 

cannot defensibly find such an exception unsatisfied without 

describing its content, and we cannot describe its content without 

articulating its basis in law‖).
STATE v. MET

A.C.J. LEE concurring in part and concurring in the judgment

48

sexual assault and kidnapping, we have warned that ―virtually 

every rape . . . would automatically be a kidnap[p]ing as well.‖ Id. 

And we have suggested that a conviction for both crimes may raise 

double jeopardy concerns—by imposing ―double punishment for 

essentially the same act.‖ Id.; see also Lee, 2006 UT 5, ¶ 31 (suggesting 

that ―a criminal defendant could be punished twice for conduct that 

amounts to only one offense, a result contrary to protections against 

double jeopardy‖).

¶130 With these concerns in mind, we have articulated a test 

aimed at identifying kidnapping charges that are ―incidental to‖ a 

sexual assault, or in other words that lack ―an independent 

significance.‖ Finlayson, 2000 UT 10, ¶ 23. The test states that a 

―confinement . . . alleged to have been done to facilitate the 

commission of another crime‖ can constitute kidnapping only if the 

confinement (a) is not ―slight, inconsequential and merely incidental 

to the other crime,‖ (b) is not ―of the kind inherent in the nature of 

the other crime,‖ and (c) has ―some significance independent of the 

other crime in that it makes the other crime substantially easier of 

commission or substantially lessens the risk of detection.‖ Id. 

¶131 We have referred to the above as ―common-law merger.‖ 

Supra ¶ 100. But that seems a misnomer. Our criminal law is 

completely codified. UTAH CODE § 76-1-105 (―Common law crimes 

are abolished and no conduct is a crime unless made so by this code, 

other applicable statute or ordinance.‖). And the legislature has 

enacted a statute dictating the terms and conditions of merger of 

criminal offenses. See UTAH CODE § 76-1-402. I cannot see how we 

can exercise common-law power in the face of two crimes defined by 

statute, and any argument for the existence of such power is 

eliminated by the existence of a statute regulating the enterprise of 

merger in this field. Schroeder Invs., L.C. v. Edwards, 2013 UT 25, 

¶¶ 22–23, 301 P.3d 994 (noting that where a statute speaks to the 

issue before the court ―our judicial role is secondary (interpretation), 

not primary (policymaking)‖).

¶132 That leaves the constitutional—double jeopardy—

question. But the concern identified in our cases is illusory. The 

double jeopardy provisions of both the United States and Utah 

Constitutions protect only against double jeopardy for the ―same 

offense.‖ U.S. CONST. amend. V (―nor shall any person be subject for 

the same offence to be twice put in jeopardy of life or limb‖); UTAH 

CONST. art. 1, § 12 (―nor shall any person be twice put in jeopardy for 

the same offense‖). And both provisions have long been understood 
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A.C.J. LEE: concurring in part and concurring in the judgment

49

to operate at the offense level—as a protection against multiple 

punishments or serial prosecution of the same criminal offense. See

Blockburger v. United States, 284 U.S. 299 (1932); State v. Sosa, 598 P.2d 

342 (Utah 1979).

¶133 The operative test allows prosecution for distinctly separate

offenses, and defines separateness based on whether each of two 

crimes contains distinct elements. Where each crime has distinct 

elements, there is no double jeopardy problem even where both 

crimes arise out of the exact same set of facts. See Blockburger, 284 

U.S. at 304 (stating that ―where the same act or transaction 

constitutes a violation of two distinct statutory provisions, the test to 

be applied to determine whether there are two offenses or only one[]

is whether each provision requires proof of a fact which the other 

does not‖); Sosa, 598 P.2d at 346 (holding that the ―test emphasizes 

the elements of the two crimes,‖ and that ―[i]f each requires proof 

that the other does not,‖ the Double Jeopardy Clause is ―satisfied, 

notwithstanding a substantial overlap in the proof offered to 

establish the crimes‖ (citations omitted)).

¶134 The facts of Blockburger and Sosa are instructive. In 

Blockburger the defendant was charged and convicted on two 

separate charges arising out of a single sale of illegal drugs—one for 

the sale of ―forbidden drugs except in or from the original stamped 

package‖ and another for the same sale of the same ―drugs not in 

pursuance of a written order of the person to whom the drug is 

sold.‖ 284 U.S. at 303–04. Thus, in Blockburger ―there was but one 

sale, and the question [was] whether, both sections [of the federal 

criminal code] being violated by the same act, the accused 

committed two offenses or only one.‖ Id. at 304. The court concluded 

that these were separate offenses because each crime required proof 

of a different element. And it accordingly held that there was no 

violation of double jeopardy in the defendant‘s conviction and 

punishment on both offenses. See id. (holding that ―although both 

sections were violated by the one sale, two offenses were 

committed‖ because each crime required proof of an element not 

required on the other).

¶135 Sosa is along similar lines. In that case, the defendant was 

convicted on charges of carrying a loaded firearm in a vehicle under 

Utah Code section 76-10-505 (1953) and possession of a dangerous 

weapon by a convicted person under Utah Code section 76-10-503(1).

598 P.2d at 343. As in Blockburger, the Sosa court emphasized that the 

double jeopardy test ―emphasizes the elements of the two crimes.‖ 
STATE v. MET

A.C.J. LEE concurring in part and concurring in the judgment

50

Id. at 346. And ―[b]ecause the elements of [the defendant‘s] separate

prosecutions differ[ed], and either offense could have been 

established without establishing the other,‖ the court held that ―the 

double jeopardy doctrine [did] not apply.‖ Id.

¶136 The double jeopardy premise of the Lee-Finlayson test 

cannot stand in light of the above. Blockburger and Sosa squarely 

repudiate the notion that double jeopardy is offended when a 

criminal defendant is ―punished twice‖ for the same conduct. Lee, 

2006 UT 5, ¶ 31. And they preserve for the legislature the power to 

identify multiple crimes arising out of a single set of facts. So the 

question whether to impose multiple punishments for a single 

deplorable act is a legislative prerogative; the Double Jeopardy 

Clause has no say in the matter.

¶137 In Utah, moreover, we have a statute that regulates the 

matter of merger. Our legislature has provided that merger is 

appropriate ―when the same act of a defendant under a single criminal 

episode‖ establishes ―offenses which may be punished in different 

ways under different provisions of [the] code.‖ UTAH CODE § 76-1-

402(1) (emphasis added). Where that is the case, ―the act shall be 

punishable under only one such provision,‖ and ―an acquittal or 

conviction and sentence under any such provision bars a prosecution 

under any other such provision.‖ Id.

¶138 The merger statute also calls for merger as to ―included‖ 

offenses. Id. § 76-1-402(3). An ―included‖ offense is one that is 

―established by proof of the same or less than all the facts required to 

establish the commission of the offense charged,‖ id. § 76-1-402(3)(a); 

one that ―constitutes an attempt, solicitation, conspiracy, or form of 

preparation to commit the offense charged or an offense otherwise 

included therein,‖ id. § 76-1-402(3)(b); or one ―specifically designated 

by a statute as a lesser included offense,‖ id. § 76-1-402(3)(c). By 

statute, ―[a] defendant may be convicted of an offense included in 

the offense charged but may not be convicted of both the offense 

charged and the included offense.‖ Id. § 76-1-402(3). This reflects a 

requirement of double jeopardy, as an included offense is also one 

that would be barred under Blockburger/Sosa. 284 U.S. at 304; 598 

P.2d at 346.

¶139 I cannot see how this court could retain common-law 

power in light of this statute. The legislature has said that a criminal 

charge is barred only if it is an ―included‖ offense or if it arises out of 

the very ―same act of a defendant‖ that is punished in a different 

way under the code. See id. § 76-1-402(1), (3). And that statute seems 
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51

to me to leave no room for this court to prescribe merger for crimes 

that are almost but not quite covered by the statute—for crimes that 

arise out of ―virtually‖ the same conduct, or that impose ―double 

punishment for essentially the same act.‖ Finlayson, 2000 UT 10, ¶ 19 

(emphasis added).

II

¶140 The factors set forth in Finlayson and Lee are also 

problematic on their own terms. None of them provide meaningful 

guidance or means of predictably distinguishing properly merged 

offenses from those that should not merge; collectively, they render 

our inquiry into common-law merger unworkable. And that is 

another consideration weighing in favor of reconsidering these 

decisions. See Eldridge v. Johndrow, 2015 UT 21, ¶ 40, 345 P.3d 553 

(―[T]o determine whether a precedent has become firmly 

established,‖ the court first asks ―how well it has worked in 

practice.‖); see also supra ¶ 104 n.25 (acknowledging the difficulty of 

reconciling Finlayson and Lee).

¶141 The first-listed element asks whether the defendant‘s 

confinement of the victim is ―slight, inconsequential and merely 

incidental to‖ another crime. Finlayson, 2000 UT 10, ¶ 23. That 

inquiry is hardly an objective one. Slightness is in the eye of the 

beholder. As to consequentiality, I would think that any detention that 

allows a defendant to commit a crime would be a matter of 

consequence. So how this element may play out in individual cases 

is anyone‘s guess.

¶142 The second element—whether the degree of confinement 

is ―inherent in the nature of the other crime,‖ id.—is also 

problematic. Confinement is never inherent in the nature of murder 

(the crime at issue here). Murder can certainly be committed without 

confining someone, as by poisoning them or shooting them with a 

gun. That holds even for sexual assault, as rape can be committed 

against an unconscious person or someone who is not physically 

detained but nonetheless does not consent. See UTAH CODE § 76-5-

406(5) (stating that a rape ―is without consent of the victim‖ if ―the 

actor knows the victim is unconscious, unaware that the act is 

occurring, or physically unable to resist‖). So this element makes no 

sense. And it again compounds the unpredictability of the inquiry.

¶143 The last element is whether the confinement has ―some 

significance independent of the other crime‖ in making it 

―substantially easier of commission‖ or in ―substantially lessen[ing] 
STATE v. MET

A.C.J. LEE concurring in part and concurring in the judgment

52

the risk of detection.‖ Finlayson, 2000 UT 10, ¶ 23. This inquiry is 

puzzling. It will always be substantially easier to commit a murder 

(or sexual assault) if the perpetrator has confined the victim to the 

extent required for kidnapping. So the last element again provides 

no basis for distinguishing properly merged offenses from those that 

should not merge.

¶144 Thus, the elements prescribed in Finlayson and Lee yield no 

workable test. And the problems inherent in implementing this test 

lend further weight to the argument for overruling these decisions.

III

¶145 Our common-law merger precedents are premised on 

vague concerns about constitutional protections against double 

jeopardy. But those concerns seem unfounded for reasons explained 

above. And unless a conviction actually violates a defendant‘s rights 

under the constitution, we have no business overriding it as a 

common-law matter. That is doubly true where the legislature has 

enacted a statute that occupies the field of merger.

¶146 I see no basis for the common-law merger principle set 

forth in Finlayson and Lee. And I would overrule the standard set 

forth in those decisions rather than apply what I see as an 

unworkable test that we have no power to impose.

¶147 The only operative merger standard that I see in our law is 

that set forth by statute, Utah Code section 76-1-402. I would reject 

Mr. Met‘s merger argument on the ground that the conviction on his 

kidnapping offense is not based on the ―same act‖ as that which 

sustained his murder conviction, as required under section 76-1-

402(1), and is not an ―included‖ offense under section 76-1-402(3).