This opinion is subject to revision before final

publication in the Pacific Reporter

2017 UT 13

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Appellee,

v.

ANTHONY JAMES PRATER,

Appellant.

No. 20130748

Filed March 7, 2017

On Direct Appeal

Third District, Salt Lake

The Honorable Robin W. Reese

No. 071909449

Attorneys:

Sean D. Reyes, Att’y Gen., Daniel W. Boyer, Asst. Solic. Gen., 

Salt Lake City, for appellee

Joel J. Kittrell, Kristina H. Ruedas, Salt Lake City, for appellant

JUSTICE PEARCE authored the opinion of the Court

in which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE DURHAM, and JUSTICE HIMONAS joined.

JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 A jury convicted defendant Anthony James Prater of

aggravated murder and obstructing justice, both first-degree 

felonies. The jury also convicted Prater on five counts of discharging

a firearm from a vehicle, a third-degree felony. At trial, three 

witnesses testified that Prater confessed to the crime, and one 

witness testified that he was there when Prater pulled the trigger. 

Forensic evidence supported the eye-witness’s trial testimony. The 

district court also admitted a letter Prater had authored that 
STATE v. PRATER

Opinion of the Court

2

suggested he had committed the murder. The district court 

sentenced Prater to life in prison without the possibility of parole.

Prater appeals his convictions, arguing that much of the witness

testimony was inherently improbable and therefore the State did not 

present evidence sufficient to permit a reasonable jury to find him

guilty on any of the counts.

¶2 We affirm Prater’s convictions.

BACKGROUND1

¶3 In the early morning of November 27, 2007, T.W. drove

Vincent Samora to a 7-Eleven. When she parked, T.W. noticed a 

silver Jeep in the parking lot. 

¶4 Ryan Sheppard, the Jeep’s owner, sat in the driver’s seat. 

Sheppard was accompanied by his friend Prater. Sheppard 

recognized Samora, who was sitting in T.W.’s car, and pointed him 

out to Prater. Prater had been searching for Samora for months. In 

2005, one of Prater’s colleagues, Christopher Archuletta, shot Samora 

in the stomach. Samora later identified Archuletta as the shooter to 

police and testified at Archuletta’s preliminary hearing. The State 

anticipated calling Samora to testify at Archuletta’s upcoming trial. 

Prater had been “waiting to get [Samora]” because of Samora’s 

testimony.

¶5 After a few minutes in the parking lot, T.W. drove to 

Samora’s house. The Jeep followed them. After T.W. parked on 

Samora’s driveway, someone in the Jeep fired shots into T.W.’s car.

At least five bullets struck the car; one of the bullets killed Samora. 

T.W. reported she saw two men in the Jeep.

¶6 After the shooting, Sheppard and Prater went to Donna 

Quintana’s house. Prater lived with Quintana, who was his 

girlfriend at the time. Sheppard and his girlfriend, Sherilyn Valdez, 

also stayed at Quintana’s house. Sheppard, Quintana, and Valdez 

later testified that upon hearing a local news channel report 

Samora’s death, Prater celebrated by laughing, jumping up and 

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1 “’On appeal, we review the record facts in a light most 

favorable to the jury’s verdict and recite the facts accordingly.’ We 

present conflicting evidence only as necessary to understand issues 

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

(citations omitted).
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Opinion of the Court

3

down, and commenting that Samora was “sleeping with the fishes.” 

Prater instructed Quintana to remove his belongings from the Jeep 

and clean the vehicle.

¶7 Soon after hearing the news of Samora’s death, Prater left 

for his cousin’s house with Sheppard and Quintana because he 

became nervous that Quintana’s neighborhood was getting too 

“hot.” Prater sent Quintana back to her neighborhood with specific 

instructions to retrieve his gun and throw it into the Jordan River.

I. Evidence Presented at Trial

¶8 The State charged Prater with aggravated murder, a firstdegree felony, in violation of Utah Code section 76-5-202; obstructing 

justice, also a first-degree felony, in violation of Utah Code section

76-8-306; and discharging a firearm from a vehicle, near a highway, 

or in the direction of any person, building or vehicle, a third-degree 

felony, in violation of Utah Code section 76-10-508.

A. Sheppard’s Testimony

¶9 At trial, Sheppard identified Prater as the shooter. Sheppard 

testified that after he and Prater pulled out of the 7-Eleven parking 

lot, Prater said, “Follow [Samora], I will get out and smash him.” 

Sheppard also testified that shortly after pulling up to Samora’s 

house, Prater fired shots from the Jeep’s window. Sheppard testified 

that Prater laughed when he saw the news that Samora had been 

killed. Sheppard recalled that Prater said “I knew I got him” and that 

Samora was “sleeping with the fishes.”

¶10 Sheppard revealed that he had initially lied to police and 

denied any involvement in Samora’s murder. Sheppard admitted 

that the State had offered him reduced charges if he agreed to testify 

against Prater. Sheppard also revealed a potential motive Sheppard 

would have had to harm Samora: Sheppard had previously dated a 

woman who—unbeknownst to Sheppard at the time—was married 

to Samora. Sheppard also testified that Samora had once thrown a 

retaliatory punch at him. Sheppard further testified that his current 

girlfriend, Valdez, had previously dated Samora.

B. Quintana’s Testimony

¶11 Quintana testified that when Prater learned from the news 

that Samora had been killed, Prater celebrated by jumping up and 

down and exclaiming that Samora was now “sleeping with the 

fishes.” Quintana testified that she cleaned the Jeep and retrieved 

Prater’s items at his request. Quintana also testified that Prater told 
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4

her where to locate the gun used to kill Samora and that, upon his 

request; she threw it into the Jordan River.

¶12 Quintana admitted that she “denied knowing anything 

whatsoever” about the shooting in her first interview with police. 

Quintana also testified that, in a second interview with police, she 

did not “tell them the truth about the gun” and that only “half” of 

what she said was truthful. Quintana admitted that at both the 

second interview and the preliminary hearing, she had been 

dishonest when she said, and then testified, that she had discarded a 

“package” because she knew she had thrown a gun into the river. 

On cross-examination, Quintana admitted she also lied at the 

preliminary hearing when she told the court that Prater had told her 

he was not involved in the shooting. She also confessed that, at the 

preliminary hearing, she lied about being asked to clean the Jeep. 

Quintana explained that she lied at the preliminary hearing because

she was “scared” after people on both Prater’s and Samora’s sides

threatened to kill her if she said anything. The jury heard that 

Quintana was arrested for aggravated murder but, after she 

promised to testify truthfully, she was charged only with obstruction 

of justice.

C. Valdez’s Testimony

¶13 Valdez’s testimony corroborated Sheppard’s and Quintana’s

testimony regarding what happened at Quintana’s apartment after 

the shooting. Valdez testified that Prater said he “got [Samora]” and 

“unloaded . . . the whole clip.” Valdez testified that Prater told her 

that he shot Samora and laughed about it. Valdez also remembered 

Prater’s remark that Samora was “sleeping with the fishies.”

¶14 Valdez admitted that she lied to police during her first 

interview by telling them that she and Sheppard had nothing to do 

with the shooting and were not at Quintana’s home on the morning 

of the shooting. At the first interview, the police told Valdez that she 

was in danger of losing her children and going to prison because of 

her involvement with the events. Valdez testified that in a second 

police interview, after “[Sheppard] wasn’t anything to [her],” she 

told the truth and explained what she saw and heard at Quintana’s 

apartment after the shooting. The jury learned that Valdez faced no 

charges at any point in this case.
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D. The Letter to Red

¶15 While Prater was in prison, a housing officer found and 

collected a couple of envelopes outside Prater’s jail cell. When the 

officer picked them up, Prater said, “give me my letters.” The officer 

refused and kept them as evidence. One of the letters was addressed 

to “Red,” the nickname for Prater’s fellow inmate, Marcus Crocker, 

who had murdered a store clerk and, like Prater, would later receive

a life-without-parole sentence.

¶16 The letter to Red explained that Samora “was getting ready 

to take the stand on [sic] [Prater’s] homie [Archuletta]. But he had 

been hiding real good cause the homies was [sic] trying to find this 

fool for months but couldn’t.” Prater wrote, “I already knew this was 

probably going to be my only chance to get at this fool. So I like [sic] 

f*** it, we followed his ass to his crib and that was that.”

¶17 In the letter, Prater admitted that he abandoned his gun in 

an alley before returning to the house and told Quintana to retrieve 

his items and clean the Jeep. Prater also recounted that he later 

instructed Quintana to find the gun and dispose of it in the Jordan 

River.

¶18 The state crime lab found Prater’s fingerprints on the letter 

to Red. A handwriting expert who analyzed the letter testified that 

he could “neither identify nor eliminate Prater from authoring [the 

letter to Red] based on the known samples” of Prater’s writing.

E. Forensic Evidence

¶19 After the shooting, detectives found eight 9mm shell casings 

strewn along the roadside near T.W.’s car. They found six bullet 

holes in the car and recovered four bullets and some bullet 

fragments. Lab results showed that the casings and bullets came

from the same gun.

¶20 At trial, a police detective testified that the location of bullet 

holes on three sides of the car indicated that the shooter was moving. 

Detectives determined that the shooter was likely the front-seat 

passenger. The detective testified that if the driver were the shooter, 

the driver would have been forced to either “shoot[] a passenger” or 

“put a bullet through his right rear passenger window”—a result of 

adjusting his aim while driving the moving vehicle. Furthermore,

had the driver been the shooter, the shell casings, which 

semiautomatics generally eject to the right, would have ended up 

inside the moving vehicle—not on the roadway where they were 

found.
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F. Al-Rekabi’s Testimony

¶21 In jail, Prater reconnected with Ali Al-Rekabi, a fellow 

inmate. Al-Rekabi also knew Sheppard from when they both lived at 

a halfway house. When Prater discovered Al-Rekabi’s relationship 

with Sheppard, he asked Al-Rekabi to write a statement that pinned

Samora’s murder on Sheppard. Prater drafted the statement and AlRekabi transcribed it using his own words. Al-Rekabi testified that 

the statement presented a “story” in which Sheppard asked for AlRekabi’s help to find “a gun big enough to get the job done.” 

¶22 Officers found a copy of the statement in Al-Rekabi’s cell. 

Al-Rekabi later testified that the entire statement was a lie. He

testified that Prater told him what actually happened. According to 

Al-Rekabi, Prater pointed an imaginary gun at his own head and 

said, “I got [Samora] but nobody knows but [Sheppard].”

¶23 The jury convicted Prater on charges of aggravated murder, 

obstructing justice, and discharge of a firearm from a vehicle. The 

district court sentenced Prater to life in prison without the possibility 

of parole for aggravated murder; one to fifteen years in prison for 

obstruction of justice; and three to five years in prison for each 

discharge of a firearm from a vehicle charge. Prater filed a notice of 

appeal.

II. Prater’s Insufficiency Claim

¶24 Prater argues that the State failed to present sufficient 

evidence at trial to support his convictions. He asserts that Sheppard, 

Quintana, and Valdez provided “inherently improbable” testimony 

because they “materially changed the testimony they had previously 

given the police or given under oath in court only after the 

prosecution promised them leniency in their own charges and 

sentences related to the events in question.” Prater acknowledges he 

did not preserve this challenge for appeal and asks us to apply the 

plain error exception to the preservation rule.

¶25 We hear this claim under Utah Code section 78A-3-102(3)(i), 

which confers jurisdiction over “appeals from the district court 

involving a conviction or charge of a first degree felony or capital 

felony.”

ISSUE AND STANDARD OF REVIEW

¶26 Prater contends that there was insufficient evidence to 

support any of his convictions. Prater failed to preserve this issue 
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Opinion of the Court

7

because he did not move for directed verdict or otherwise challenge 

the sufficiency of the evidence supporting the jury’s verdict.

¶27 We generally do not hear claims on appeal that were not 

presented to the district court. State v. Holgate, 2000 UT 74, ¶ 11, 10 

P.3d 346 (“[C]laims not raised before the trial court may not be 

raised on appeal.”). A claim is preserved before the district court 

“when it has been ‘presented to the district court in such a way that 

the court has an opportunity to rule on [it].’” Patterson v. Patterson, 

2011 UT 68, ¶ 12, 266 P.3d 828 (alteration in original) (citation 

omitted). “[I]t is clear that as a general rule, a defendant must raise 

the sufficiency of the evidence by proper motion or objection to 

preserve the issue for appeal.” Holgate, 2000 UT 74, ¶ 16. “[T]he 

preservation rule applies to every claim . . . unless a defendant can 

demonstrate that ‘exceptional circumstances’ exist or ‘plain error’ 

occurred.” Id. ¶ 11 (citations omitted). Recognizing that his claim is 

unpreserved, Prater argues that the district court plainly erred when 

it submitted the question of Prater’s guilt to the jury based on the 

State’s “inherently improbable evidence.”

¶28 “[T]o establish plain error [based on insufficient evidence], a 

defendant must demonstrate first that the evidence was insufficient 

to support a conviction of the crime charged and second that the 

insufficiency was so obvious and fundamental that the trial court 

erred in submitting the case to the jury.” Id. ¶ 17. Even if evidence is 

insufficient, we will not find plain error unless the insufficiency was 

“obvious and fundamental.” Id. An example of an obvious and 

fundamental insufficiency is “the case in which the State presents no

evidence to support an essential element of a criminal charge.” Id.

¶29 Here, the court did not err, let alone plainly err, when it 

permitted the jury to hear the case. 

ANALYSIS

¶30 Prater asks us to set aside each of his convictions based on 

an insufficiency of the evidence. Prater primarily argues that 

Sheppard, Valdez, and Quintana offered “inherently improbable”

testimony because they each received favorable treatment in 

exchange for testifying and because their testimony changed 

substantially after they accepted the State’s offer. Without these three 

witnesses’ testimony, Prater concludes, “there is no direct or 

circumstantial evidence upon which the defendant could be 

convicted by a reasonable jury and beyond a reasonable doubt.” In 

other words, Prater contends that because the trio of witnesses 
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Opinion of the Court

8

changed their testimony after receiving deals from the State, the 

testimony they each offered at trial was inherently dubious to the 

point that no reasonable jury could have relied on it to convict him.

¶31 As a general rule, the trial judge determines “whether . . . 

evidence is admissible,” UTAH R. EVID. 104(a), whereas the finder of 

fact—in this case a jury—determines whether evidence is credible.

See State v. Workman, 852 P.2d 981, 984 (Utah 1993); UTAH CODE

§ 78B-1-128(4) (“The jury is the exclusive judge of credibility.”). Thus 

when conflicting or disputed evidence is presented at a jury trial, the 

“jury serves as the exclusive judge of both the credibility of the 

witnesses and the weight to be given particular evidence.” Workman, 

852 P.2d at 984 (emphasis added).

¶32 We are not normally in the business of reassessing or 

reweighing evidence, and we resolve “conflicts in the evidence in 

favor of the jury verdict.” Id. But we have carved out an exception 

from this general rule. “In some unusual circumstances” we will 

conclude that the testimony presented to the jury was so unreliable 

that it cannot form the basis of a conviction. Id. The lead opinion in 

Workman posited that such an unusual circumstance exists when 

witness testimony “is so inconclusive or inherently improbable that 

it could not support a finding of guilt beyond a reasonable doubt.” 

Id. In dicta, Workman’s lead opinion suggested that to be inherently 

improbable the testimony must describe an action that was 

physically impossible or must be manifestly false “without any 

resort to inferences or deductions.” Id.

¶33 In State v. Robbins, we expanded Workman’s definition of 

inherently improbable testimony to “include circumstances where a 

witness’s testimony is incredibly dubious and, as such, apparently 

false.” 2009 UT 23, ¶ 18, 210 P.3d 288.2 We criticized the court of 

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2 We also restated Workman, opining and explaining that witness

testimony is inherently improbable “if it is (1) physically impossible 

or (2) apparently false.” Robbins, 2009 UT 23, ¶ 16, 210 P.3d 288. 

“Testimony is physically impossible when what the witness claims 

happened could not have possibly occurred.” Id. ¶ 17. For example, 

testimony that an event “occurred on the moon” qualifies as 

physically impossible. Id. Testimony is “apparently false” when a 

“witness presents inherently contradictory testimony that is 

(continued . . .)
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Opinion of the Court

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appeals’ definition of inherently false, finding it unduly narrow 

because it required that the challenged testimony be “improbable by 

its very nature.” Id. ¶ 17 (citing State v. Robbins, 2006 UT App 324, 

¶ 17, 142 P.3d 589). We also criticized its holding that “the inherently 

improbable testimony must . . . go to the very core of the offense.” 

Id. (omission in original) (citation omitted). We corrected the court of 

appeals and clarified that “[s]ubstantial inconsistencies in a sole 

witness’s testimony, though not directed at the core offense, can 

create a situation where the prosecution cannot be said to have 

proven the defendant’s guilt beyond a reasonable doubt.” Id.; see also

Campbell v. State, 732 N.E.2d 197, 207 (Ind. Ct. App. 2000) (finding 

testimony inherently improbable when it runs so “counter to human 

experience” that “no reasonable person could believe” it). We held 

that only in instances “where (1) there are material inconsistencies in 

the testimony and (2) there is no other circumstantial or direct 

evidence of the defendant’s guilt” may the district court “reevaluate 

the jury’s credibility determinations.” Robbins, 2009 UT 23, ¶ 19. In 

such a case, the district court may find that the testimony is 

apparently false.

¶34 Applying these principles in Robbins, this court held that a 

child’s “testimony was so inherently improbable that the trial court 

had discretion to disregard it when considering whether sufficient 

evidence supported Robbins’ conviction.” Id. ¶ 13. In Robbins, a child 

accused Robbins, her stepfather, of sexual abuse. Id. ¶ 1. The child’s

testimony “suffered from multiple inconsistencies,” which she tried 

to cover up with patently false statements. Id. ¶¶ 8, 22. For example,

when attorneys asked why the child first said the abuse occurred 

when she was nine then changed her story to seven, she said she had 

a hearing problem, “a fact objectively not true.” Id. ¶ 8. The child

also “changed the description of what she was wearing at the time of 

the alleged incident.” Id. Additionally, she gave conflicting 

testimony at trial. When asked if Robbins “ever spoke to her about 

the incident, she replied, ‘Not that I remember. I think that maybe once 

he might have said that if I ever told anyone he would do it again or he 

would hit me more.’” Id. ¶ 9. Later in her testimony, the child 

explained she did not tell anyone about the abuse, “[b]ecause I had 

always been told that if I told anyone about him abusing me he 

_____________________________________________________________

equivocal or the result of coercion, and there is a complete lack of 

circumstantial evidence of guilt.” Id. ¶ 18 (citation omitted).
STATE v. PRATER

Opinion of the Court

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would abuse me more, or he would threaten to kill my dog, or 

something like that.” Id. (alteration in original). Furthermore, the 

child explained she did not report her abuse to two DCFS 

investigators because she was afraid “because somebody told me 

there was going to be someone hiding in the closet and listening to 

everything that I said.” Id. However, “the first DCFS interview took 

place in a room without a closet and was conducted before Robbins

and Mother were informed of the allegations, so neither would have 

had the opportunity to tell her that someone would record her 

conversation.” Id.

¶35 We held that “[the child’s] inconsistent accounts regarding 

the extent of the physical abuse she suffered, her age when the abuse 

occurred, and what she was wearing at the time of abuse may alone 

be insufficient to invoke the inherent improbability exception.” Id.

¶ 22. We suggested that a reasonable jury could still have credited 

the child’s testimony even with the multiple inconsistencies because 

it might recognize that children may not be able “to identify with a 

high degree of reliability, and sometimes not at all, when an event in 

the past took place.” Id. (citation omitted). We concluded, however, 

that “the patently false statements that [the child] made to cover up” 

the inconsistencies in her testimony were “sufficient to allow the 

court to reassess her credibility.”3 Id.

¶36 Another factor that motivated this Court to find an unusual 

circumstance allowing a departure from the general rule was that the 

child’s testimony was the sole evidence supporting Robbins’ guilt. 

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3 The child’s testimony suffered from other inconsistencies. 

Father, who had divorced Mother in part because of an affair 

between Robbins and Mother, “made a complaint to DCFS, alleging 

that Robbins was verbally and physically abusing [the child].” 

Robbins, 2009 UT 23, ¶¶ 3–4. When a DCFS investigator first asked

the child about physical abuse, she told the investigator that Robbins 

never hit her. Id. ¶ 10. Two years and a couple of interviews after the 

first interview, the child’s story had evolved into allegations that 

about once a week for four years, Robbins would enter her room, 

pull a book from the shelf, and hit her with it. Id. “Though these 

allegations of physical abuse do not bear directly on the alleged 

incident of sexual abuse, they reflect the pattern of inconsistency 

pervading [the child]’s testimony.” Id.
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Id. ¶ 1. We reasoned that because the child’s testimony was fraught 

with inconsistencies, and since “no other evidence point[ed] to 

Robbins’ guilt, these inconsistencies [were] sufficient to have 

allowed the trial judge to reevaluate [the child]’s credibility.”4 Id.

¶ 23.

¶37 Prater argues that Sheppard’s, Quinata’s, and Valdez’s

testimony are apparently false and inherently improbable. Prater

points out that all three witnesses gave pre-trial statements that

conflicted with their trial testimony. In pre-trial statements to police, 

Sheppard and Valdez denied that Sheppard played any role in the 

shooting. Quintana admitted that she originally lied to the police 

when she told them that she had no knowledge whatsoever of 

Samora’s death. Prater argues that these conflicting statements

qualify as “material inconsistencies” just as the statements that 

caused us to disregard the child witness’s testimony in Robbins did.

¶38 This argument misreads Robbins. In Robbins, the child’s 

additional patently false statements and not just her inconsistent 

accounts, which could be explained by her age and lack of 

sophistication, allowed the court to reassess her credibility. See id.

¶ 22. As noted above, we reasoned that inconsistencies in the child’s 

testimony alone might not have rendered the child’s testimony

inherently improbable because a reasonable jury could have 

attributed those inconsistencies to the child’s age and inability to 

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4 The State asserts that “[t]his case stands nowhere near Robbins,” 

in which one witness “provided the sole evidence of the defendant’s 

guilt,” because “four witnesses provided corroborating testimony,” 

and “[t]he corroboration among those accounts alone takes [Prater]’s 

case outside of Robbins’s orbit.” We disagree. The question of 

whether the State has presented evidence upon which a reasonable 

jury could convict would not change if four witnesses offered

physically impossible testimony. To expand upon the example we 

provided in Robbins, four witnesses’ testimony that an assault 

occurred on the moon suffers from the same inherent improbability 

as testimony offered by a single witness. While it is true that the lack 

of corroborating evidence significantly influenced our decision, 

Robbins should not be read as endorsing a view that a finder of fact 

can reasonably rely on inherently improbable evidence if the State 

introduces enough of it. 
STATE v. PRATER

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accurately identify when an event took place. See id. It was the 

inconsistencies in the child’s testimony plus the patently false 

statements the child made plus the lack of any corroboration that 

allowed this court to conclude that insufficient evidence supported 

Robbins’s conviction.

¶39 Similarly, here, the inconsistencies in Sheppard’s, 

Quintana’s, and Valdez’s accounts by themselves are “insufficient to 

invoke the inherent improbability exception.” Id. The jury learned 

that Sheppard, Quintana, and Valdez all made statements to police 

shortly after the shooting that contradicted their trial testimony. 

Prater fails to mention that each witness admitted at trial that he or 

she initially lied to police. Additionally, Quintana testified before the 

jury that she withheld information at the preliminary hearing only 

because she was afraid of Prater’s or Samora’s associates retaliating 

against her. That three trial witnesses who were tied to events 

surrounding a murder would deny their involvement when initially 

interviewed by the police does not run so counter to human 

experience that it renders their testimony inherently improbable. In 

other words, the three witnesses’ pre-trial inconsistent statements do 

not render their testimony “apparently false.” The question of which 

version of their stories was more credible is the type of question we

routinely require juries to answer. 

¶40 Prater further argues that the witnesses’ testimony is

especially dubious because each witness “received favorable 

reductions in their charges or sentencing.” He notes that Sheppard 

and Quintana received lighter sentences in exchange for favorable 

testimony.

¶41 We reject the argument that Sheppard’s and Quintana’s plea 

deals automatically render their testimony apparently false.5

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5 In addition, Prater argues that Valdez lied when she testified 

that Prater was solely responsible for the murder, thus shielding 

Sheppard’s involvement. Indeed, Valdez testified that she lied in her 

first interview with police after police threatened her that she may 

go to prison for her involvement in the shooting. Valdez also 

testified that at a second interview, she told the police the truth and 

revealed her and Sheppard’s involvement. Valdez testified that her 

second interview and testimony reflected the truth. The jury was 

well positioned to consider Valdez’s explanation for her shifting 

(continued . . .)
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Whether a witness testifies truthfully in light of favorable treatment 

offered by the State goes to the weight and credibility of the 

testimony. See State v. Powell, 2007 UT 9, ¶ 32, 154 P.3d 788 (holding 

that evidence showing a witness offered testimony in return for a 

plea bargain attacked only general witness credibility). “The jury is 

the exclusive judge of [witness] credibility.” UTAH CODE § 78B-1-

128(4). And we will not act as a second trier of fact. State v. Boyd, 

2001 UT 30, ¶ 16, 25 P.3d 985; see also White v. State, 706 N.E.2d 1078, 

1080 (Ind. 1999) (refusing to reassess the jury’s credibility 

determinations when the “jury had the opportunity to determine the 

credibility of [the] witnesses in light of the incentives”). Any leniency 

the witnesses received in exchange for testimony was solidly before 

the jury when it made its credibility determinations. Prater’s counsel 

had every opportunity to attack the witnesses’ credibility because of 

the plea deals and to argue accordingly in front of the jury. To be 

clear, we do not foreclose the possibility that evidence of stateoffered incentives may bolster a defendant’s argument that the 

testimony presented at trial was apparently false. But a plea deal by 

itself does not come within shouting distance of successfully 

demonstrating that a witness’s testimony is “apparently false” or 

that it falls under any of the other labels we have used to describe 

testimony that a reasonable jury could not rely upon to convict.

¶42 Prater also ignores a key consideration that led the Robbins 

court to find that the witnesses’ inherently improbable testimony 

was insufficient to support a conviction. In Robbins, “no other 

circumstantial or direct evidence” supported the defendant’s guilt.

2009 UT 23, ¶ 19. Prater focuses solely on Sheppard’s, Quintana’s, 

and Valdez’s testimony. By so doing, he fails to acknowledge the 

substantial evidence the State presented that tied Prater to Samora’s 

murder.

¶43 Significantly, Prater fails to address the handwritten letter to 

Red found outside his cell, which tracks the testimony of Sheppard, 

Valdez, and Quintana. Prater also ignores the corroborating forensic 

evidence that the Jeep’s passenger likely fired the killing shot. 

Finally, Prater does not mention Al-Rekabi’s testimony that Prater 

confessed to Al-Rekabi that he had killed Samora and enlisted Al-

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story and to conclude which of her versions of events they believed. 

The changed story, standing alone, does not render the testimony 

inherently unreliable.
STATE v. PRATER

Opinion of the Court

14

Rekabi’s help to write a false statement pinning the crime on 

Sheppard.6 In light of this evidence, there was no basis for the 

district court to conclude that this case presented the type of unusual 

circumstance that animated us to action in Robbins and to therefore 

depart from the usual course of allowing the jury to assess the 

credibility of witness testimony.7

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6 Failure to marshal this evidence violates rule 24 of our Rules of 

Appellate Procedure. Rule 24 sets forth “standards for the form, 

organization, and content of a brief on appeal.” State v. Nielsen, 2014 

UT 10, ¶ 33, 326 P.3d 645; UTAH R. APP. P. 24. It provides that “[a] 

party challenging a fact finding must first marshal all record 

evidence that supports the challenged finding.” UTAH R. APP. P.

24(a)(9). In Nielsen, we repudiated the hard-and-fast notion of 

dismissing a claim based solely on “a technical deficiency in 

marshaling.” 2014 UT 10, ¶¶ 37, 41. 

This said, we reiterate what we said in Nielsen, that 

an appellant who seeks to prevail in challenging the 

sufficiency of the evidence to support a factual finding 

or a verdict on appeal should follow the dictates of rule 

24(a)(9), as a party who fails to identify and deal with 

supportive evidence will never persuade an appellate 

court to reverse under the deferential standard of 

review that applies to such issues. 

Id. ¶ 40. We focus on the “question of whether the appellant has 

established a basis for overcoming the healthy dose of deference 

owed to . . . jury verdicts.” Id. ¶ 41. Prater does not marshal “all 

record evidence that supports the challenged finding.” UTAH R. APP.

P. 24(a)(9). He therefore fails to carry his heavy burden of persuasion 

required to overcome the “healthy dose of deference owed to . . . jury 

verdicts.” Nielsen, 2014 UT 10, ¶ 41.

7 We remind the appellate bar that counsel faced with trouble 

finding an argument that is not wholly frivolous may submit an 

Anders brief. The United States Supreme Court established in Anders 

v. California that appointed defense counsel must support an 

indigent client’s appeal to the best of her ability to protect her client’s 

constitutional rights to fair process and substantial equality. 386 U.S. 

738 (1967). If, after a “conscientious examination” of a defendant’s 

case, counsel finds the “case to be wholly frivolous,” she should “so 

(continued . . .)
Cite as: 2017 UT 13

Opinion of the Court

15

CONCLUSION

¶44 The trial court did not err—let alone plainly err—when it 

submitted Prater’s case to the jury. The inconsistencies between 

Sheppard’s, Quintana’s, and Valdez’s pretrial statements and incourt testimony do not render their testimony apparently false.

Moreover, ample additional evidence supports each of Prater’s 

convictions. We affirm.

_____________________________________________________________

advise the court and request permission to withdraw.” Id. at 744. The 

withdrawal request must “be accompanied by a brief referring to 

anything in the record that might arguably support the appeal” and 

relevant legal authorities. Id. “A copy of counsel’s brief should be 

furnished the indigent and time allowed him to raise any points that 

he chooses . . . .” Id.