This opinion is subject to revision before final

p ublication in the Pacific Reporter

201 5 UT 4 5

IN THE



## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

T HE S TATE OF U TAH
, Appellee,

v.

C ODY A LAN R EECE
, Appellant.

No. 20120883
Filed April 14, 2015

Third District, West Jordan

The Honorable Bruce C. Lubeck

No. 101402231

Attorneys:

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

Salt Lake City, for appellant

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

C HIEF J U STICE D URRANT authored the opinion of the Court, in which

A SSOCIATE C HIEF J USTICE L EE , J USTICE D URHAM
, J USTICE P ARRISH
, and J UDGE O RME joined.

J USTICE N EHRING did not participate herein due to his retirement ; C OURT OF A PPEALS J UDGE G REGORY K. O RME sat.

J US TICE D ENO G. H IMONAS became a member of the Court on February 13, 2015, after oral argument in this matter, and

accordingly did not participate.

C HIEF J USTICE D URRANT , opinion of the Court:

Introduction

¶1 Cody Reece was convicted of aggravated murder,

agg ravated burglary, possession of a weapon by a restricted person, and obstruction of justice. He argues that we must vacate hisS T ATE v. R EECE
Opinion of the Court

2 convictions because the trial court erred by (1) denying his request for a variety of lesser

- included

- offense jury instructions

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

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

rifle in his car one month after the murder

, and (4) refusing to sever the weapons offense from the other charges.

¶2 We aff irm Mr. Reece‘s convictions. First, although the court erred in denying Mr. Reece‘s request for lesser

- included

- offense instructions on several variants of unintentional homicide, the error was harmless due to the overwhelming evidence that Mr. Reece

commi tted aggravated murder. Second, the court‘s limits on voir dire questioning were not improper

— Mr. Reece was allowed to ask almost two hundred questions from his proposed juror questionnaire, and the court also permitted unlimited individual

follow

- up quest ioning with each prospective juror, so Mr. Reece had ample opportunity to evaluate each juror for potential biases. Third,

the stolen

- rifle evidence was properly admitted because it was relevant to the genuine noncharacter purpose of linking Mr. Reece to

t he murder weapon, and the evidence was unlikely to improperly affect the jurors‘ decision in light of the s ignificant criminal conduct

Mr. Reece admitted to in his trial testimony. Finally, the court‘s refusal to sever the weapons charge was not an abuse o f discretion, because the jury never heard any evidence that Mr. Reece was a

convicted felon.

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

- aggravated

- murder sentencing statute is unconstitutional. And even if it is not, he maintains that the court abused its discretion when it imposed a sentence of life without parole (LWOP) because it erroneously interpreted the sentencing statute as establishing a presumptive LWOP sentence. We conclude that the sentencing statute is constitutional f or reasons we recently

discussed in State v. Perea

. 1 But because the record is unclear as to how the court‘s incorrect reading of the statute influenced its decision to impose an LWOP sentence, we remand for the court to
determine whether its erroneous int erpretation of the statute affected its sentencing decision. If the court concludes that it did, Mr. Reece is entitled to a new sentencing hearing.

1 2013 UT 68, 322 P.3d 624.Cite as: 201 5 UT 4 5

Opinion of the Court

3 Background

¶4 The victim‘s husband returned home from work on the evening of July 13, 2010, to find his wife lying dead on the couch in their front room. She had a gunshot wound in her forehead and there was a bullet hole in the couch next to her body. The victim‘s face had been beaten with a hard object, and she had ―deep gouges‖ on the back of her hands, most likely from attempting to shield her face during the attack. Police recovered a 9 mm shell casing, two slugs, and a broken piece of plastic, which they later matched with the guide rod used in a Beretta handgun. There was no sign of forced entry, no missin g valuables, and no evidence of a struggle elsewhere in the home. Investigators determined that the victim was likely killed right where she was found on the couch by a bullet fired at a downward trajectory about one foot away from her head. Police

never r ecovered the murder weapon.

¶5 That same evening, after several days of heavy drug use, Cody Reece drove to the victim‘s neighborhood in Sandy, Utah

, to steal mail. Around 6:30 p

. m

. , he took a brown package from a home

located about one

- half mile west of the victim ‘s. Fifteen minutes later, witnesses saw Mr. Reece speeding through a construction site

on 700 East in a black Mazda. Mr. Reece collided with another vehicle and drove off, eventually abandoning the Mazda in a neighborhood a mile north of the acciden t. He then walked through the neighborhood and knocked on several doors, asking for a glass of water and to use a phone. At one of the homes, he stole a money

order out of the mailbox when the homeowner left the front door to retrieve a phone for Mr. Reece to use. He entered another home through the back door without permission, punched one of its occupants several times, and then fled through the front door. Eventually , several neighbors tackled Mr. Reece and restrained him until police arrived. Mr. Reece was arrested and j ailed for assault and burglary.

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

victim‘s death, and three days after his arrest, they obtained a search warrant for his clothing. Investigators found a blood ―stain on the

bottom right

- hand side‖ of Mr. Reece‘s shirt ―as well as some droplets and a smear.‖ There were also ―two little droplets or spots‖ on the ―back side of the shirt above the right shoulder.‖ DNA testing

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

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

The second stain matched the victim ‘s DNA.S T ATE v. R EECE
Opinion of the Court

4 ¶7 Police interviewed Mr. Reece on July 21, and he claimed that he could not remember much of what happened the day of the

murder because he had been drinking heavily and using Xanax. He said he remembered getting into a car accident, running away because he thought his car had been hit intentionally, and being arrested. But he claimed not to remember entering any homes in the

victim ‘s neighbor hood.

¶8 While in jail, Mr. Reece called his mother several times asking for help posting bail. When his mother asked him why he was in jail, he explained that his memory was ―fuzzy,‖ but he remembered things he could not talk about on the phone. According

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

entered the victim‘s home because as ―he was driving by [the] house,‖ he saw ―the garage door open[]‖ and ―didn‘t see any cars,‖ so he believed no one was home. But once Mr. Reece was inside, ―a lady came up and grabbed‖ him, ―he grabbed his gun, turned around . . . and the gun went off by accident.‖ Mr. Reece eventually posted bail and was released.

¶9 Once he was out of jail, Mr. Reece visited a friend (Friend) who, unbeknownst to Mr. Reece, was a paid confidential informant. She told investigators that Mr. Reece asked her for money and said he felt like he was going to go to prison for a long time if he did not get out of town. According to Friend, Mr. Reece said that he ―probably shot a lady‖ an d that he was having flashbacks of running through a restaurant with blood on his clothes and throwing his clothes and a gun into a dumpster. Friend also claimed that she was with Mr. Reece the day before the murder and saw him cleaning a

9 mm Beretta hand gun.
¶10 Police arrested Mr. Reece again on August 10 based on a report that he was stealing license plates. They found a stolen assault rifle in his car, which they traced to a theft in Park City. According to the rifle‘s owner, the rifle and a 9 mm Beretta h andgun were both in his truck the day the ri fle was stolen in January 2010.

¶11 The State charged Mr. Reece with aggravated murder, aggravated burglary, possession of a dangerous weapon by a restricted person, and obstruction of justice. Over Mr. Reece‘s objec tion, the trial court granted the State‘s motion to introduce the stolen rifle as evidence linking him to a 9 mm Beretta handgun.

¶12 At trial, Mr. Reece denied telling Cellmate that he struggled with and accidentally shot the victim . He claimed that he did n ot have a gun on July 13 and said that Friend was lying about his incriminating statements and seeing him cleaning a 9 mm Beretta onCite as: 201 5 UT 4 5

Opinion of the Court

5 July 12. According to Mr. Reece, he was in the victim ‘s neighborhood stealing mail when he heard a gunshot inside her home. He went inside to assist a woman he saw lying motionless in the living room, believing she may have tried to kill herself. He claimed that while he was leaning over her, he got some blood on his shirt, and he looked up to see a man with a gang tattoo hold ing a gun. Mr. Reece explained that he fled when the man turned the gun on him and that he purchased the stolen assault rifle for protection. He admitted that he had previously owned a 9 mm Beretta but insisted that he got rid of the gun in early 2010.

¶13 Mr . Reece requested that the court issue lesser

- included

offense instructions on murder, felony murder, manslaughter, negligent homi cide, and homicide by assault. The court denied the request, concluding that Mr. Reece‘s testimony ―create[d] an all

- or

nothin g situation‖ and that there was no rational basis to believe Cellmate‘s testimony that the murder was inadvertent, in light of the physical evidence of an intentional killing. Mr. Reece also submitted

a 193

- question juror questionnaire. The court struck tw elve questions and modified several others, citing concern for the jurors‘ privacy.

¶14 Mr. Reece moved to sever the weapons charge, which the court granted in part. The court instructed the jurors to determine whether Mr. Reece was in possession of a firearm on July 13 and

informed them that it was unlawful under some circumstances for a person to purchase or possess a gun. The jury found Mr. Reece guilty of all charges and found that he possessed a weap on on July 13.

Mr. Reece waived his right to a jury tria l on the restricted person element of the weapons offense, and the court found that Mr. Reece was a convicted felon at the time he possessed a firearm.

¶15 Mr. Reece also filed a motion asserting that the aggravated murder sentencing statute was unconstitutio nal. The court rejected

his claims an d sentenced Mr. Reece to LWOP. He now appeals. We have jurisdiction under Utah Code section 78A

- 3

- 102(3)(i).

Standard of Review

¶16 Mr. Reece urges us to vacate his conviction and remand for a new trial. First, he argues th at he was entitled to lesser

- included

offense instructions on murder, felony murder, manslaughter, negligent homicide, and homicide by assault. ―A trial court‘s refusal to grant a lesser included offense instruction is a question of law,

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

2 State v. Powell , 2007 UT 9, ¶ 12, 154 P.3d 788.S T ATE v. R EECE
Opinion of the Court

6 inappropriately limited the scope of voir dire, inhibiting his ability ―to question the prospective jurors about their biases related to substance abuse, association, employment, ties to the legal community and/or prosecutorial agencies, and upbringing.‖ We review a judge‘s decision imposing limits on voir dire questioning

for an abuse of discretion. 3

¶17 Third, Mr. Reece contends that the trial court should have excluded evidence that police foun d a stolen ass ault rifle in

Mr. Reece‘s car one month after the murder. ―A trial court‘s admission of prior bad acts evidence is reviewed for abuse of discretion, but the evidence must be scrupulously examined by trial judges in the proper exercise of that discretion.‖ 4 Fourth, Mr. Reece argues that the weapons offense should have been severed from the other charges because evidence that he unlawfully possessed a weapon ―was not relevant‖ to the other charges ―except to show a criminal disposition.‖ ―A ruling on a motion to sever charges‖ is discretionary ―and will not be disturbed on appeal, absent an abuse

of discretion.‖ 5

¶18 Finally, Mr. Reece argues in the alternative that we ―should remand for a new sentencing hearing because (1) the noncapital aggravated murder senten cing statut e is unconstitutional‖ and ―(2) the court abused its discretion by sentencing Mr. Reece to‖ life without parole. The constitutionality of a statute is a question of law

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

decision for abuse of discretion. 7

Analysis

¶19 We affirm Mr. Reece‘s conviction. Even though the trial court erred in denying Mr. Reece‘s request for lesser

- included

offense instructions, the error was harmless in light of uncontroverted physical evidence that linked Mr. Reece to the crime

scene and demonstrated that the murder was intentional. The court did not abuse its discretion in imposing limits on voir dire

3 State v. Piansiaksone , 954 P.2d 861, 867

– 68 (Utah 1998).

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

mark s omitted)

.

5 State v. Saunders , 699 P.2d 738, 740 (Utah 1985), abrogated on other ground by State v. D o porto , 935 P.2d 484, 489 (Utah 1997).

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

7 State v. Moa , 2012 UT 28, ¶ 34, 282 P.3d 985.Cite as: 201 5 UT 4 5

Opinion of the Court

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

follow

- up questions with each prospective juror and the totality of the lengthy juror questionnaire afforded him ample opportunity to unearth potential juror biases. The trial court did not abuse its discretion in admitting the stolen

- rifle evidence, because the evidence was relevant to a genuine noncha racter purpose

— whether

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

was used to kill the victim

— and its admission was not unfairly prejudicial in light of the other evidence admitted at trial. Denying

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

abuse of discretion

, because the court bifurcated the weapons charge in a way that prevented the jury from ever learning that Mr. Reece

was a convicted felon.

¶20 We also conclude that the noncapital aggravated murder

sent encing statute is constitutional for reasons we recently discussed

in State v. Perea

, 8 but we agree with Mr. Reece that the trial court incorrectly interpreted the statute as imposing a presumptive

sentence of LWOP. We therefore remand to the trial court f or a limited hearing to determine how this mistake influenced the court‘s sentencing decision. If the trial court determines that its mistaken interpretation of the statute impacted the ultimate decision to impose LWOP, Mr. Reece is entitled to a new sente ncing hearing.

I. Mr. Reece W as E ntitled to L esser

- I ncluded

- O ffense

I nstructions, but the E rror W as H armless

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

- included

- offense instructions on murder, felony murder, manslaughter , negligent homicide, and homicide by assault.

Utah Code section 76

- 1

- 402 provides that trial courts ―shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant

of t he offense charged and convicting him of the included offense.‖ 9 This court has interpreted section 76

- 1

- 402 to require a defendant to make two showings before he is entitled to a lesser

- included

- offense instruction: ―(1) that the charged offense and the l esser included offense have overlapping statutory elements and (2) that the evidence provides a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included

8 2013 UT 68, ¶ ¶ 108

– 27 , 322 P.3d 624.

9 U TAH C ODE § 76

- 1

- 402(4).S T ATE v. R EECE
Opinion of the Court

8 offense.‖ 10 The State concedes, and we agree, tha t the statutory elements of aggravated murder overlap with each of Mr. Reece‘s proposed lesser included offenses. We also agree with Mr. Reece that Cellmate‘s testimony, considered in isolation, provides a rational basis in the evidence to acquit him of ag gravated murder and convict him of lesser included offenses that punish unintentional killings. But errors in criminal proceedings usually justify reversal only if there is a reasonable likelihood that the error affected the outcome of the proceedings. 11 An d in light of the uncontroverted physical evidence linking Mr. Reece to the crime scene and showing overwhelmingly that he killed the victim intentionally, we conclude

that the error was harmless.

A. There is a R ational B asis in the E vidence to A cquit Mr. Ree ce of

A ggravated M urder and C onvict H im of L esser I ncluded

O ffenses I nvolving U nintentional K illings

¶22 Even if the statutory elements of a lesser included offense overlap with those of the charged offense, ―a defendant‘s right to a

lesser included offense in struction is limited by the evidence and only justified where there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the

included offense.‖ 12 In making that determination, trial courts must ―view[] the evidence in the light most favorable to the defendant‖ and cannot ―weigh the evidence.‖ 13 Rather, ―when the evidence is ambiguous and therefore susceptible to alternative interpretations, and one alternative would permit acquittal of the greater offense and conviction of the lesser, a jury question exists and the court must give a lesser included offense instruction at the request of the

defendant.‖ 14 This standard assures that lesser

- included

- offense instructions serve their intended purpose of safeguarding a

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

11 See State v. Vargas , 2001 UT 5, ¶ 48, 20 P.3d 271 (―Even assuming the trial court erred in concluding there was good c ause for allowing the State to obtain the defense witness list, we will not reverse [the] trial court for committing harmless error.‖ (alteration in original) (internal quotation marks omitted)).

12 Powell , 2007 UT 9, ¶ 2 7 (internal quotation marks omitted)

.

13 Id.

14 State v. Baker , 671 P.2d 152, 159 (Utah 1983).Cite as: 201 5 UT 4 5

Opinion of the Court

9 defendant‘s constitutional right to a fair trial 15 without ―allow[ing] the jury to return a compromise, or other unwarranted verdict.‖ 16

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

for a lesser

- included

- offense instruction on murde r, but because there was a rational basis in the evidence for the jury to conclude that the killing was unintentional, the court erred in denying Mr. Reece‘s request for an instruction on the other lesser included offenses that punish unintentional killing s.

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

instruction on murder

¶23 As we have discussed, Mr. Reece is not entitled to a lesser

included

- offense instruction on murder unless there is a rational

basis to convict him of that offense and ac quit him of aggravated murder. Aggravated murder occurs when a person ―intentionally or knowingly causes the death of another

. . . incident to‖ the

commission of a listed felony

. 17 A nd in t his case, the State charged

Mr. Reece with killing the victim durin g the course of a burglary

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

. Mr. Reece argues that ―there was evidence to support a verdict of murder because there was a rational basis to find that [he] did not commit burglary,‖ but in tentionally o r knowingly killed the victim. He points out that ―[n]othing was stolen or disturbed in the home‖ and that he ―was extremely intoxicated and suffering paranoia, anxiety, and memory loss‖ at the time. He also cites evidence in the

record that ― he approached other homes‖ in the victim‘s neighborhood ―for purposes other than theft or assault

— e.g., he entered one home looking for  ̳Mike‘ and approached others looking for a telephone or glass of water.‖ The State maintains that ―[e]ven if the jury mi ght have believed that [Mr. Reece] innocently entered [the victim‘s] home, once it found that he committed an intentional homicide there, it would also necessarily find that he‖ committed a burglary and aggravated murder. We agree with the State.

¶24 No ration al jury could have concluded that Mr. Reece committed murder without also concluding that he committed a burglary. Burglary occurs when a defendant ―enters or remains unlawfully in a building or any portion of a building with intent to

15 See i d. at 157.

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

17 U TAH C ODE § 76

- 5

- 202(1)(d).S T ATE v. R EECE
Opinion of the Court

10 commit: (a) a felony ; (b) theft; [or] (c) an assault on any person.‖ 18 In other words, a person can commit burglary without stealing anything

— a person who commits any felony while remaining unlawfully inside a building is also guilty of burglary. And we have previously conclud ed that a defendant can ―form the intent to

commit another crime at the time he enters or while he remains unlawfully in [a] building.‖ 19 Accordingly, in State v. Tillman , we determined that a defendant who broke into the victim‘s home for the purpose of ki lling him had committed ―first degree murder,‖ 20 an offense Utah law now punishes as aggravated murder. 21 We rejected the contention that ―since burglary is a completed offense the moment entry is made with the requisite felonious intent, such

circumstance

. . . could not provide the basis for elevating the subsequent intentional killing to first degree murder.‖ 22 Instead, we
determined that because the defendant ―committed an intentional homicide‖ after unlawfully entering the victim‘s home, the evidence

―cle arly supported‖ a conclusion that the defendant committed a burglary and elevated the killing from murder to first degree

murder. 23

¶25 Here, Mr. Reece is correct that there is no evidence that he took anything from the victim‘s home. A crime scene investigator testified that ―[t]he house was extremely clean‖ and tha t ―nothing [was] out of order.‖ The victim‘s husband also testified that, to the best of his knowledge, nothing was missing from his home after the

murder. And Mr. Reece also testified that he entere d the home lawfully ―to help‖ a woman he saw through the window ―lying flat‖ after he heard a gunshot. But even if the jury believed that Mr. Reece‘s initial entry was a lawful attempt to aid someone in distress, Mr. Reece‘s presence in the home became unl awful the moment he decided to ―intentionally or knowingly‖ kill the victim. 24 If the jurors

18 U TAH C ODE § 76

- 6

- 202(1).

19 State v. Rudolph , 970 P.2d 1221, 122 9 (Utah 1998).

20 750 P.2 d 546, 551, 571

– 72 (Utah 1987).

21 See U TAH C ODE § 76

- 5

- 202(1)(d); Tillman , 750 P.2d at 550, 568

– 69.

22 Tillman , 750 P.2d at 57 1 (internal quotation marks omitted)

.

23 Id. at 572.

24 See U TAH C ODE § 76

- 6

- 202(1)(a) (providing that a person commits burglary by ―enter[ing] or remain[ing] unlawfully in a building or any portion of a building with intent to commit . . . aCite as: 201 5 UT 4 5

Opinion of the Court

11 believed that Mr. Reece committed murder while ―remain[ing] unlawfully‖ in the victim‘s home, they would have no choice but to convict him of burglary as well, even though he did not steal anything. And if Mr. Reece ―intentionally or knowingly‖ caused the

victim‘s death ―incident to .

. . a burglary,‖ no reasonabl e juror could

conclude that Mr. Reece committed murder without also determining that the killing amounted to aggravated murder. 25 We therefore conclude that the trial court properly denied Mr. Reece‘s request for a lesser

- included

- offense instruction on murder.

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

instructions on several variants of unint entional homicide

¶26 But we cannot agree with the trial court‘s conclusion that there was no rational basis in the evidence to justify instructions on the other lesser included offenses Mr. Reece requested. Mr. Reece

asked the court for instructions on severa l other offenses, all of which punish unintentional killings. 26 The only evidence of an accidental murder was Cellmate‘s account of his jailhouse conversation with Mr. Reece. According to Cellmate, Mr. Reece told

him that he ―walked in‖ to the victim‘s home and ―a lady came up and grabbed him, and he grabbed his gun, turned around . . . and the gun went off by accident.‖

¶27 The trial court acknowledged that Cellmate‘s testimony, standing alone, ―would have justified lesser instructions.‖ But the

court denied t he req uested instructions because Mr. Reece testified that Cellmate was lying

— he claimed that he ―[n]ever told‖ Cellmate ―that there was a lady inside the house . . . that startled‖ him or ―that somewhere in the process of interacting with this lady . . . the gun went off.‖ The court also noted that Cellmate‘s testimony was inconsistent with the physical evidence. A crime scene investigator

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

felony‖); id. § 76

- 5

- 203(2) (a) (defining murder as ―intentionally or knowingly caus [ ing ] the death of another‖).

25 Id. § 76

- 5

- 202 (1)(d) (definin g aggravated murder as ―intentionally or knowingly‖ causing a death ―incident to .

. . aggravated burglary[ or] burglary‖).

26 Mr. Reece argues in his reply brief that a depraved

indifference

- murder instructio n would have been appropriate, and

he asked the trial court for instructions on felony murder, manslaughter, negligent hom icide, and homicide by assault.S T ATE v. R EECE
Opinion of the Court

12 blood that we could see. No blood anywhere else [ was ] found. All the blood was concentrated in that one area right on the love seat‖ where investigators found the victim‘s body. The investigator also testified that the victim‘s gunshot wound was consistent with a bullet fired at a ―downward trajectory‖ about one foot away from her head. And a weapons expert testified that the gun likely used to kill the victim can be discharged only if ―the trigger is pulled . . . to 90 percent engagement,‖ making it highly unlikely that this ―type of gun . . . may accid entally go off.‖

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

a lesser included offense instruction because ‖ Mr. Reece ― took the stand and repudiated it.‖ According to the State, our obligation to ―view[] the evidence in the light most favor able to the defendant requesting the instruction‖ 27 requires us ―to take Mr. Reece at his word and discount [Cellmate‘s] testimony.‖ Additionally, the State maintains that Cellmate‘s testimony, standing alone, provides no basis for reasonable jurors to igno re the ―uncontradicted physical evidence demonstrat[ing] that the shooting was intentional.‖ We disagree.

¶29 The ―light most favorable standard‖ serves several important functions, including preserving the jury‘s ―responsibility of evaluating the weight and c redibility of the evidence.‖ 28 Indeed, in determining whether there is a rational basis in the evidence to support a lesser

- included

- offense instruction, a trial court may not ―weigh the credibility of the evidence.‖ 29 Rather, ―when the evidence is ambiguous and therefore susceptible to alternative interpretations, and one alternative would permit acquittal of the greater offense and conviction of the lesser, a jury question exists a nd the court must give a lesser included offense instruction at the request o f the
defendant.‖ 30 Consequently, instead of ignoring Cellmate‘s testimony and confining our analysis to evidence that supports the specific defense theory Mr. Reece presented at trial, we examine the entire ―record taken as a whole,‖ 31 accepting whatever po rtions of

27 Powell , 2007 UT 9, ¶ 27.

28 Id.

29 Baker , 671 P.2d at 159.

30 Id.

31 See Powell , 2007 UT 9, ¶ 27.Cite as: 201 5 UT 4 5

Opinion of the Court

13 witness testimony, as well as other evidence, that support the requested lesser

- included

- offense instruction. 32

¶30 There may be some cases where this ―process of dissect[ing] and reconstruct[ing]‖ the evidence fails to reveal a rational basis in

the evidence for a lesser

- included

- offense instruction despite some supporting evidence. 33 For instance, although trial courts must

construe the facts and all reasonable inferences from them in favor of the defendant, an inference is not reasonable if ―it falls to a level of inconsistency or incredibility that no reasonable jury could accept
it.‖ 34 In other words, a ―defendant‘s request for a lesser included offense instruction‖ cannot be ―based on sheer speculation‖ 35 from a discrete piece of evidence if, viewed in the context of the record as a whole, acquitting the defendant of the greater offense and convicting of the lesser would require jurors to fill gaps in the evidentiary picture with their own speculative judgments. 36 For instance, in

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

32 Cf. Baldwin v. Vantage Corp. , 676 P.2d 413, 417 (Uta h 1984) (noting that ―the testimony of witnesses is to be given such weight and credibility as the trier of fact may find reasonable under the circumstances‖).

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

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

35 Powell , 2007 UT 9, ¶ 33.

36 See, e.g.

, State v. Garcia

- Vargas , 2012 UT App 270, ¶ 17, 287 P.3d 474 (denying a request for a lesser

- included

- offense instruction where even though the defendant‘s tes timony raised ―at least the possibility‖ that he committed the lesser offense but not the greater, that conclusion was ―entirely speculative‖ based on other evidence in the case); Moore , 108 F.3d at 273 (―While it is sometimes permissible for the jury to d issect and reconstruct the evidence to identify a rational basis upon which to convict on the lesser and acquit on the greater offense, the process of dissection and reconstruction must itself be rationally motivated.‖ (footnote omitted) ); United States v. Crowder , 543 F.2d 312, 318 (D.C. Cir. 1976) (rejecting a request for a self

- defense instruction because ―[t]he theory fragments the testimony in a selective process .

. . so attenuated as to strain credulity to the breaking point‖ (internal quotation mark s omitted) ).S T ATE v. R EECE
Opinion of the Court

14 instruction on imperfect self

- defense manslaughter, even though he ―testified that he believed he was acting out of self

- defense‖ when he

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

v ictim multiple times in the back while the victim was both unarmed and handcuffed, the ―great weight of the evidence‖ contradicted the defendant‘s claim and strongly indicated that the defendant ―could not have believed himself to be in imminent danger at the time of the
attack.‖ 38

¶31 But here, unlike the evidence presented in Kell , Cellmate‘s testimony could have supported an inference that the murder was unintentional without requiring the jurors to engage in speculation. Viewing the evidence in the light mo st favorable to Mr. Reece, we must assume that he perjured himself at trial when he testified that he did not have a gun the day of the murder and that someone else

killed the victim. And we must also assume that Mr. Reece was being truthful when he told C ellmate that his gun went off inadvertently during a brief struggle with the victim. Reaching these conclusions would not require a reasonable juror to ignore the physical evidence; rather, the jurors could have simply believed that

the location of the vic tim‘s blood and the trajectory of the bullet demonstrated that Mr. Reece discovered the victim in her living room, struggled with her near the couch, and accidentally shot her when she reached for his gun. Such a scenario would be consistent

with the victi m‘s husband‘s description of her as someone who ―wouldn‘t back down‖ and would have tried to fight off her attacker. The State‘s experts, of course, interpreted the evidence differently, but the jurors can assign expert ―testimony any weight they choose, i ncluding no weight at all.‖ 39 We therefore conclude that there was ―a sufficient quantum of evidence to raise a jury question‖ 40 about whether Mr. Reece shot the victim inadvertently, and the court therefore erred by concluding that there was no

rational bas is for lesser

- included

- offense instructions involving an unintentional killing.

37 2002 UT 106, ¶ 25, 61 P.3d 1019.

38 Id.

39 Dixon v. Stewart , 658 P.2d 591, 597 (Utah 1982) (―No matter how arcane the subject matter or how erudite the witness, the jury is not required to accept the expert‘s testimony as conclusive.‖).

40 Bake r , 671 P.2d at 159.Cite as: 201 5 UT 4 5

Opinion of the Court

15 B. Failing to I

ssue L esser

- I

ncluded

- O

ffense I nstructions

W as H armless E rror

¶32 Having concluded that Mr. Reece was entitled to a lesser

included

- offense instruction, we now turn to the question of whether the trial court‘s error prejudiced his case. We begin by clarifying an ambiguity in our caselaw

— whether the improper denial of a lesser

included

- offense instruction presumptively affects the outcome of a case and precludes any harml ess error analysis. We conclude that denying a lesser

- included

- offense instruction is an ordinary trial error to which harmless error analysis applies. We also conclude that the trial court‘s error in denying Mr. Reece‘s requested instructions

was harmless in light of the overwhelming evidence linking him to the crime scene and demonstrating that the murder was intentional.

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

structural error

¶33 An error is harmless and does not require reversa l if it is ―sufficiently inconsequential that we conclude there is no reasonable likelihood that the error affected the outcome of the proceedings.‖ 41 Stated differently, ―the likelihood of a different outcome‖ absent the error ―must be sufficiently high to undermine confidence in the

verdict.‖ 42 Errors are often harmless where there is overwhelming evidence in the record of the defendant‘s guilt. 43 And the defendant generally bears the burden to demonstrate that the error he complains of affected the outcome of his case. 44

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

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

.

43 See, e.g.

, State v. Maestas , 2012 UT 46, ¶ 165, 299 P.3d 892 (concluding that a prosecutor‘s ina ppropriate reference during closing argument to the fact that the defendant did not testify was harmless because ―the jury was given a strong curative instruction and there was overwhelming evi dence‖ of the defendant‘s guilt ); State v. Young , 853 P.2d 327, 345 (Utah 1993) (concluding that even if ―the trial court erred in admitting evidence of [the defendant‘s] attempted flight from the police,‖ the error was harmless ―[i]n light of the overwhelming evidence of defendant‘s guilt‖).

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

C RIM

. P. 30(a) (―Any error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded.‖)

.S T ATE v. R EECE
Opinion of the Court

16 ¶34 But there is a narrow exception to this general rule. We have recognized that ―structural errors‖ that affect ―the framework within which the trial proceeds‖ are qualitatively different than an ordinary ―error in the trial process itself.‖ 45 Consequently, we presume that a structural error affected the outcome of the case and do not require the defendant to show prejudice. 46 Examples of such errors include mistakes in reasonable doubt instructions, 47 the complete denial of

counsel at a critical stage of a criminal proceeding, 48 racial discrimination in jury selection, 49 lack of an impartial trial judge, 50 denial of the right to a public trial, 51 and th e failure to instruct the jury on ― the basic elements of an offense.‖ 52

¶35 Citing our decision in Stat e v. Spillers

, 53 Mr. Reece argues that when a trial court fails to give a lesser

- included

- offense instruction, ―[p]rejudice . . . is not measured by the strength of the evidence but by whether the evidence is consistent with both the

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

Mr. Reece contends that as long as there is a rational basis in the evidence to support instructing the jury on a lesser included offense,

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

m arks omitted).

46 Id.

47 Id. ¶¶ 17

– 18.

48 Gideon v. Wainwright , 372 U.S. 335, 339, 342

– 45 (1963); see also

Maestas , 2012 UT 46, ¶ 57.

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

, 917 P.2d 545, 547

– 48 (Utah 1996). But see State v. Har ris , 2012 UT 77, ¶ 30 n.13, 289 P.3d 591 (―Harris also urges us to adopt the view that

Batson errors are structural in nature and therefore obviate the prejudice inquiry under the plain error standard. Because we conclude that any error here could not have been obvious to the trial court, however, we need not and accordingly d o not reach the prejudice question of the  ̳structural error‘ ground for avoiding proof of prejudice.‖).

50 Kell , 2002 UT 106, ¶ 15 n.2 (citing Johnson v. United States , 520 U.S. 461, 4 6 8

– 6 9 (1997)).

51 Id. ¶ 15.

52 State v. Bluff

, 2002 UT 66, ¶ 26, 52 P.3d 1210 (internal quotation marks omitted).

53 State v. Spillers , 2007 UT 13, ¶ 24, 152 P.3d 315.Cite as: 201 5 UT 4 5

Opinion of the Court

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

outc ome of trial and is not subject to our typical harmless error analysis on appeal.

¶36 We reject Mr. Reece‘s contention for two reasons. First, although Mr. Reece cites language in two cases that seems to support his position, this court has never held that fa iling to instruct the jury on a lesser included offense is a structural error. Second, the failure to instruct the jury on a lesser included offense bears a close resemblance to other ordinary trial errors we review for

harmlessness.

¶37 Mr. Reece cites State v. Spillers to support his assertion that the failure to give a lesser

- included

- offense instruction is a structural error. In that case, we held that a defendant convicted of first degree

murder was entitled to an instruction on extreme emotional distress manslaughter. 54 And we cited a Utah Court of Appeals case for the proposition that ― ̳failing to instruct on [a] lesser included offense presumptively affects the outcome of the trial‘‖ when ― ̳the evidence

is consistent with both the defendant‘s and the Sta te‘s theory of the

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

about it. But in Spillers , we devoted just one paragraph to harmless error analysis and did not attempt to distinguish, nor purport to overrule, other decisions that found harmless error in this context. 56 And the court of appeals decision we cited in Spillers did not engage the issue in any more depth or attempt to distinguish other court of appeals precedent that applied traditional harmless error review. 57

¶38 Furthe rmor e, a survey of our own case law and our court of appeals decisions reveals that both courts have consistently applied harmless error analysis to a trial court‘s erroneous denial of lesser

included

- offense instructions. In State v. Evans , for example, we

con cluded that ―the trial court erred in refusing to instruct the jury

on the lesser

- included offense of attempted manslaughter.‖ 58 But we explained that the error was harmless because the only evidence

54 Id. ¶¶ 9, 20

.

55 Id. ¶ 24 (quoting State v. Knight , 2003 UT App 354, ¶ 17, 79 P.3d 969).

56 Id.

57 See Knight , 2003 UT App 354, ¶ 17.

58 2001 UT 22, ¶ 20, 20 P.3d 888.S T ATE v. R EECE
Opinion of the Court

18 supporting the instruction was the defendant‘s own self

- s erving testimony, which conflicted with the accounts of numerous eyewitnesses. 59 Similarly, in State v. Payne , the court of appeals concluded that there was ―a rational basis for a verdict acquitting [the defendant] of lewdness involving a child and convict ing him of the lesser included offense of child abuse,‖ 60 but it determined that

the error was harmless. 61 There the court observed that to convict the defendant of the lesser offense and acquit him of the greater, ―the jury would have to reject the credibil ity of [several] witnesses in

favor of mere inferences that are conceivable from the evidence but are by no means compelled by it.‖ 62 These cases are not outliers

— Utah courts have consistently applied harmless error analysis in this

context for at least thr ee decades. 63

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

a lesser

- included

- offense instruction as a structural error, but this type of error also closely resembles others that we have always reviewed for harmlessness. For example, error s in jury instructions are routinely reviewed for harmless error, 64 including instructions that mischaracterize the culpable mental state required to sustain a

59 Id. ¶¶ 21

– 23.

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

61 Id. at 335

62 Id.

63 See, e.g.

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

Piansiaksone , 954 P.2d 8 6 1, 871

– 72 (Utah 1998); State v. Pearson , 943 P.2d 1347, 1350

– 51 (Utah 1997); State v. Gotschall , 782 P.2d 459, 464 (Utah 1989)

, abrogated on other grounds by State v. Doporto , 935 P.2d 484, 489 (Utah 1997).

64 See, e.g.

, Piansiaksone , 954 P.2d at 870

– 71 (concluding that jury instructions that ―improperly mandated an order of deliberation and deprived defendant of the right to have the jury consider his
 ̳defense‘ of man slaughter‖ were harmless errors ); State v. Fontana

, 680 P.2d 1042, 1048

– 49 (Utah 1984) (―Even if the instruction on depraved indifference second degree murder had been in error, the error was not prejudicial.‖) ; State v. Montague , 671 P.2d 187, 190 (Utah 1983) (―[A] criminal conviction is not reversed because of an erroneous jury instruction unless the e rror is of such gravity that it could cause substantial pre judice to defendant‘s rights.‖).Cite as: 201 5 UT 4 5

Opinion of the Court

19 conviction. 65 Similarly, we have applied harmless

- error review to
erroneous self

- defense instructi ons 66 and the complete failure to instruct the jury on an affirmative defense. 67 The analogy to affirmative defense instructions is particularly apt because defendants are entitled to such instructions if the evidence ―provides any reasonable basis upon whic h a jury could conclude that the affirmative defense applies to the defendant,‖ 68 a standard that

mirrors the rational basis test for lesser

- included

- offense

instructions. 69 In reviewing these errors for harmlessness, we have treated them as ―garden

- variety trial errors‖ rather than fundamental flaws that ―affect the very framework of the trial‖

itself. 70 And beyond citing our statement in Spillers

, Mr. Reece has not identified any reason why the failure to give lesser

- included

offense instructions should be t reated any differently. Accordingly, we conclude that the failure to give a lesser

- included

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

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

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

was harmless error

¶40 We now turn to the question of whether the trial court‘s erroneous denial of Mr. Reece‘s requested lesser

- included

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

65 Powell , 2007 UT 9, ¶¶ 19, 21

– 23 (holding that a jury instruction that erroneously stated that the mens rea requirement for attempted murder was ―knowing‖ or ―dep raved indifference‖ was harmless error because ―the uncontested evidence would allow the jury only one reasonable conclusion: that [the defendant] intentionally attempted to cause [the victim‘s] death‖).

66 State v. Starks , 627 P.2d 88, 91

– 92 (Utah 1981).

67 See State v. Cowan , 490 P.2d 890, 892 (Utah 1971) (concluding that failing to give an entrapment instruction was harmless error);

State v. Cox , 751 P.2d 1152, 1154

– 55 (Utah Ct. App. 1988) (holding that the failure to instruct the jury on a defense of impl ied consent in an unlawful control of a vehicle was harmless error).

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

69 See supra ¶ 22

.

70 See Cruz , 2005 UT 45, ¶ 17.

71 State v. Evans , 2001 UT 22, ¶ 20, 20 P.3d 888.S T ATE v. R EECE
Opinion of the Court

20 court‘ s error is not harmful unless there is a reasonable likelihood that the jury would have acquitted Mr. Reece of aggravated murder and convicted him of an offense involving an unintentional killing. 72 Because there was overwhelming evidence that Mr. Reece

int entionally killed the victim, we conclude that ―there is no reasonable likelihood‖ that the jury would have acquitted Mr. Reece of aggravated murder. Accordingly, our confidence in the verdict is not undermined, 73 and denying the requested instructions was

therefore harmless error.

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

the crime scene

— investigators found the victim‘s blood on

Mr. Reece‘s shirt, he admitted that he entered the victim‘s home, and his attempt at providing an innocent ex planation for this incriminating evidence was, to put it mildly, implausible. In his telling, Mr. Reece was a good Samaritan that stumbled into the wrong place at the wrong time. He claims that he heard a gunshot, looked into the victim‘s home, and saw a w oman ―lying flat‖

— a woman he believed had just tried to kill herself. He then rushed inside to assist the woman and got blood on his shirt while leaning over her. But Mr. Reece also admitted that he was only near the victim‘s home because he thought it was in ―a nice neighborhood and [he] was going to check mailboxes in that neighborhood‖ to ―see if [he] could get anything valuable.‖ On the night of the murder, the

evidence also showed that Mr. Reece entered three homes without permission, violently assault ed one resident, and stole a package and a money order from two other homeowners in the area. Essentially, Mr. Reece asked the jury to believe that sometime during a crime spree that spanned two hours and in which he committed multiple felonies, he felt co mpelled to stop at the victim‘s home just to be a good citizen. We find his story to be simply incredible.

¶42 Second, the evidence of an intentional murder overwhelmed Cellmate‘s testimony that Mr. Reece accidentally shot the victim during a brief struggle. A ccording to investigators, all of the victim‘s blood ―was concentrated in . . . one area right on the love se at‖ where they found her body, and the bullet that killed her was fired at a ―downward trajectory‖ about one foot away from her head. The

victim ha d a black eye, cuts on her nose, loose teeth, and abrasions on the side of her face ―consistent with [a] blunt force injury.‖ The state medical examiner believed that the victim ―was struck by

72 See id.

73 Id.Cite as: 201 5 UT 4 5

Opinion of the Court

21 something that was very hard with a lot of force.‖ These injuri es, along with cuts on the back of the victim‘s left hand, led the medical examiner to conclude that the victim tried ―to cover [h er] face with a hand while she [ was] being struck.‖ A weapons expert also testified that the gun likely used to kill the victi m can be discharged only if ―the trigger is pulled . . . to 90 percent engagement,‖ making it highly unlikely that this ―type of gun . . . may accidentally go off.‖ And of course, Mr. Reece testified that Cellmate was lying, repudiating the only piece of e vidence that the murder was

accidental.

¶43 The physical evidence and the inherent implausibility of

Mr. Reece‘s testimony lead us to conclude that there was overwhelming evidence that he killed the victim intentionally during the course of a burglary. We the refore conclude that even if the trial court had instructed the jury on lesser offenses involving unintentional killings, ―there is no reasonable likelihood‖ that the outcome of trial would have been any different, and the trial court‘s

failure to issue th e instructions was harmless. 74

II. The T rial C ourt A ppropriately L imited V oir D ire

¶44 Mr. Reece next argues that the trial court ―erred in refusing to allow [him] to ask‖ prospective jurors questions he claims would

have allowed him to detect biases unfavor able to his case. Mr. Reece submitted a proposed juror questionnaire with 193 questions. The

trial court refused to ask only twelve of them and modified a few others. According to Mr. Reece, these limits ―substantially impaired‖ his ability to ―intelligent ly exercise his peremptory challenges.‖ The State maintains that the totality of the questions asked and the opportunity Mr. Reece had for individual follow

- up questioning with each prospective juror ―afforded Mr. Reece an adequate opportunity to gain the information necessary to evaluate the jurors.‖ We agree with the State.

¶45 The purpose of voir dire examination is ―both the detection of actual bias . . . and the collection of data to permit informed exercise of the peremptory challenge.‖ 75 Generally, ―trial courts should be permissive in allowing voir dire questions and should exercise their discretion in favor of allowing counsel to elicit

74 See id

.

75 State v. Pian siaksone , 954 P.2d 861, 867 (Utah 1998) (alteration in original) (internal quotation marks omitted)

.S T ATE v. R EECE
Opinion of the Court

22 information from prospective jurors.‖ 76 But trial courts have no obligation ―to permit every question ‖ that ―might discl ose some basis for counsel to favor or disfavor seating a particular juror.‖ 77 Nor do defendants have a right ―to ask questions in a particular manner.‖ 78 Rather, courts have broad discretion to limit any question that bears only a tangential relationship to jurors‘ potential biases or that ―unduly intrudes‖ into the jurors‘ private lives. 79 A court‘s limits on voir dire questioning are not an abuse of discretion when, ―considering the totality of the questioning, counsel was afforded an adequate opportunity t o gain the information necessary to evaluate the jurors.‖ 80

¶46 Mr. Reece identifies five areas of concern that the court prevented him from exploring effectively: (1) ―bias towards the prosecuti on and . . . law enforcement,‖ (2) ―jurors‘ possible upbringing an d attitudes toward the criminal justice system,‖ (3) attitudes derived from membership in ―social organizations,‖ (4) ―whether jurors would have been unsuitable for the defense based on their connection to people employed in the legal community,‖ and (5) ― any negative assumptions about persons who have substance abuse problems.‖ The totality of the questionnaire and Mr.

Reece‘s follow

- up questions adequately covered each of these topics, and the trial court acted well within its discretion by limiting or

ex cluding questions that it determined probed too deeply into the jurors‘ private lives.

¶47 First, with respect to jurors‘ ―biases towards . . . law enforcement‖ and ―attitudes toward the criminal justice system,‖

Mr. Reece complains that the court did not allo w him to ask a number of questions about the jurors‘ relationship with law enforcement or security companies. In particular, Mr. Reece wanted to ask each juror about specific positions he or she had held with a law enforcement agency or a private security firm, whether a spouse

76 Id. at 868.

77 Id.

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

.

79 See Piansiaksone , 954 P.2d at 868 ; see also State v. Ball , 685 P.2d
1055, 10 60 (Utah 1984) (―The criminal defendant‘s right to a fair trial

does not create a license in his defense counsel to conduct an inquisition into the private beliefs and experiences of a venireman.‖).

80 Taylor , 2007 UT 12, ¶ 7 0 (internal quotation marks omitted).Cite as: 201 5 UT 4 5

Opinion of the Court

23 or child worked for a similar entity, and where each juror was born. Instead, Mr. Reece argues that the court improperly limited his questions to the jurors‘ and their spouse s‘ general occupation s without requiring them to report spe cific employers. 81

¶48 But Mr. Reece‘s argument ignores a number of questions the court permitted that were directly related to the jurors‘ attitudes towards law enforcement and the justice system. For example, questions 48 through 62 required jurors to report whether they or someone close to them had ever been arrested or charged with a crime, and whether that experience had generated any negative feelings toward the justic e system. Questions 63 through 78 asked whether the juror or family members had been the victim of a crime, and if so, how it affected their feelings toward the justice system.

Mr. Reece was also allowed to ask how jurors felt about defense attorneys and prosecutors, whether jurors believed police officers were more credible than other potent ial witnesses, and whether they felt that the justice system is generally too hard or too soft on criminals. Moreover, the trial court permit ted Mr. Reece to ask

individual follow

- up questions with each prospective juror, and the

record shows that he elici ted even more information that allowed him to assess jurors‘ attitudes about the criminal justice system and

biases towards law enforcement. 82

¶49 Second, even though the trial court allowed questions requiring jurors to disclose their membershi p in any s ocial organizations, Mr. Reece contends that the court improperly excluded a question that would have required jurors to list any positions they had held within those organizations. According to

Mr. Reece, ―[i]nformation about positions can provide insight about the level of involvement in and commitment to the organization.‖ That may be true, but the court allowed several other questions that, coupled with individual follow

- up questioning, adequately

81 The trial court permitted Mr. Reece to inquire about each juror‘s birthplace.

82 For example, Mr. Reece questioned one potential juror who indicated on his questionnaire that defense attorneys ―serve a noble

cause but at times‖ he ―question[s] their ethics.‖ Mr. Reece was able to determine that the juror had no ―similar concerns about the ethics of prosecutors‖ and that his parents taught him that ―you can trust a police officer‖ because they are generally ―good people .‖ The record is replete with similar examples.S T ATE v. R EECE
Opinion of the Court

24 addressed potential biases and attitudes derived from me mbership in a particular social or political group. Question 125 asked jurors whether they felt their decision in the case ―might be criticized by your family, your friends, your church or church members, or others,‖ and if so, ―would such criticism be of concern to you?‖ Additionally, Mr. Reece asked jurors to describe their political views, whether they were involved in any groups organized to make changes to the justice system, and he was also permitted to follow up individually on any answers to these q uestions that raised a concern.

¶50 Third, Mr. Reece asked whether each juror or the juror‘s ―sibling, spouse, children, [or] parents‖ had ―ever worked for an attorney,‖ but the court did not permit him to require jurors to identify the family member‘s name, the juror‘s relationship to that person, the attorney‘s name, or the name and location of the law firm or government agency that employed the attorney.‖ Mr. Reece maintains that striking these questions prevented him from determining ―whether jurors would have been unsuitable for the defense based on their connection to people employed in the legal community.‖ But the record indicates that Mr. Reece was able to

elicit much of this information in follow

- up questions with individual jurors. For example, Mr. R eece‘s trial counsel asked

individual follow

- up questions of one juror who indicated on her questionnaire that she ―had family and friends that work with attorneys.‖ The juror said she had ―a daughter who is an attorney,‖

counsel asked ―what kind of attorn ey is she,‖ and the juror said her daughter worked ―for LexisNexis and just teaches at colleges.‖ A second juror indicated that his father ―was a criminal lawyer, . . . a defense attorney‖ in response to a follow

- u p question, and Mr. Reece
learned that a t hird juror had a ―father

- in

- law [who] does water rights.‖ There is no indication in the record that the court limited Mr.

Reece‘s follow

- up questioning in a way that prevented him from determining whether the jurors had relationships with people in the leg al community that would lead them to favor the defense or the prosecution.

¶51 Finally, Mr. Reece argues that the trial court should have allowed him to ask whether each juror, or ―any close friend or family member, had a substance abuse problem. If so, who wa s the person, when did the problem occur, and what substance was it?‖ Instead, the court asked each juror whether the fact that a witness used drugs would ―impact your ability to be fully impartial and fair.‖ Only one juror answered that question affirmati vely, and the court eventually

dismissed her for health reasons. Mr. Reece cites our decision in StateCite as: 201 5 UT 4 5

Opinion of the Court

25 v. Saunders 83 for the proposition that it is reversible error for a trial court to allow jurors to essentially self

- report their own biases

— that
is, to si mply ask whether a particular factor would impair the juror‘s objectivity and then take their ―answer as dispositive of the issue of

bias.‖ We conclude that Saunders is distinguishable from the
circumstances in Mr. Reece‘s case and that the trial court did not abuse its discretion in limiting questions about substance abuse.

¶52 In Saunders , we reversed a trial court‘s decision refusing defense counsel‘s request to ask follow

- up questions of several potential jurors ―who stated they had specialized knowledge

co ncerning child sex ual abuse from their educational background and one juror who was actively supporting an anti

- child

- abuse organization.‖ 84 We expressed disapproval of ―the all too prevalent practice of avoiding any real inquiry into possible bias‖ by simp ly asking prospective jurors if they ―could decide the case fairly and

follow the law

. . . then taking a prospective juror‘s affirmative answer as dispositive of the issue of bias.‖ 85 Because the jurors‘ ―answers provide[d] evidence of possible bias‖ about child sex abuse, we concluded that a juror‘s ―conclusory statement that he or she will . . . decide the case fairly‖ 86 was simply insufficient and that the court abused its discretion ―in refusing to allow a further probing of the jurors‘ attitudes toward child sexual abuse.‖ 87 In doing so, we noted that there was ―little objective evidence‖ of the defendant‘s guilt and the jurors ―therefore had to rely on a subjective evaluation of the witnesses‘ credibility that would be strongly influenced by the jurors‘ own experiences and points of view and the possible biases

that arose from them.‖ 88

¶53 Here, although we acknowledge the court could have crafted a more effective question to probe the jurors‘ attitudes about substance abuse, the circumstances differ in import ant respects from

those in Saunders . To begin with, the bias Mr. Reece identifies is not directly related to the offenses for which he was convicted. Saunders involved multiple sex offenses committed against a small child, and

83 1999 UT 59, ¶ 34, 992 P.2d 951.

84 Id. ¶¶ 38

– 39.

85 Id. ¶ 34.

86 Id. ¶ 36.

87 Id. ¶ 47.

88 Id. ¶ 37.S T ATE v. R EECE
Opinion of the Court

26 several jurors revealed infor mation during voir dire that fairly called into question their ability to remain impartial due to the nature of

the offenses. 89 Mr. Reece, by contrast, was not charged with any drug offenses, and there were witnesses for both the prosecution and the

defense who admitted to having substance abuse problems. Consequently, a bias against drug users would not necessarily have predisposed a juror to find against Mr. Reece. Moreover, unlike the

defendant in Saunders

, Mr. Reece was permitted to ask follow

- up questio ns of each individual juror without any restrictions. 90

Mr. Reece has not identified any instances in which the trial court prevented him from asking a specific follow

- up question, and our own review of the record indicates that the judge gave him wide

lati tude in questioning each individual juror. 91

¶54 Furthermore, asking jurors to disclose their own personal history with substance abuse

— including any family member‘s drug

use

— is deeply personal. As we have noted, judges have ―broad discretionary power to condu ct voir dire‖ and have ―a duty to protect juror privacy.‖ 92 Judges therefore do not abuse their discretion when they take steps to assure that any line of questioning is ―pursued with a sensitivity to the privacy of the potential juror‖ 93 so long as ―the tot ality of the questioning‖ affords counsel with ―an adequate opportunity to gain information necessary to evaluate the jurors.‖ 94 Of course, protecting the jurors‘ privacy becomes a less compelling reason to limit voir dire questioning when a potential

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

89 Id. ¶¶ 4, 38.

90 See id. ¶¶ 38

– 39.

91 We also note that Mr. Reece‘s follow

- up questions actually

elicited inf ormation about jurors‘ attitudes towards substance abuse. For example, in questioning one juror who indicated on her questionnaire that a relative had been charged with a crime, Mr. Reece was able to learn that the relative was convicted of a drug

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

- in

- law‘s situation that somehow is going to influence your ability‖ to objectively evaluate witness‘s te stimony, and the juror said no.

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

93 Id.

94 Piansiaksone , 954 P.2d at 868 (internal quotation marks omitted).Cite as: 201 5 UT 4 5

Opinion of the Court

27 important issues in the case. But as we have explained, that is not the case here. Consequently, due to the highly personal nature of this particular question

, the wide latitude the judge prov ided for

individual follow

- up questioning, and the attenuated relationship between the alleged bias and the ultimate issues in the case, we cannot say that the trial court abused its discretion in this instance.

¶55 In summary, the trial court allowed Mr. Ree ce to ask the vast majority of the 193 questions in his proposed juror questionnaire. Those questions, along with those the court modified

and the unlimited individual follow

- up questioning, demonstrate that Mr. Reece had every opportunity to uncover the i nformation he needed to identify juror biases and intelligently exercise his peremptory challenges. Far from placing unreasonable limits on the scope of voir dire, the trial court was fair and accommodating and appropriately exercised its discretion to pro tect the jurors‘ privacy without inhibiting Mr. Reece‘s ability to meaningfully evaluate the prospective jurors.

III. The T rial C ourt P roperly A dmitted the

State‘s R ule 404(b) E vidence

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

Evid ence should have barred the admission of evidence that police found a stolen assault rifle in his car when they arrested him. And he

contends that the court should have excluded certain details of the traffic stop and arrest that led to the weapon‘s recove ry. Specifically, police thought they saw Mr. Reece reach for a handgun under his seat, and after he was ordered out of the car, Mr. Reece ran and had to be subdued by a taser. Rule 404(b) prohibits the admission of evidence of a defendant‘s ―crime, wrong, or other act . . . to prove [the defendant‘s] character in order to show on a particular occasion the [defendant] acted in conformity with the character.‖ 95 Mr. Reece contends that the ―true purpose‖ of the stolen rifle ev idence was ―to suggest that Mr. Re ece was a dangerous person who acted in conformity with [his] alleged bad character.‖

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

non character purposes, ― such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.‖ 96 But the evidence ―must clear several evidentiary

95 U TAH R. E VID

. 404(b)(1).

96 Id. 404(b)(2).S T ATE v. R EECE
Opinion of the Court

28 hurdles before admission

— rules 404(b), 402, and 403.‖ 97 These requirements can be distilled into a three

- part test: the prior bad

- act evidence (1) must be ―offered for a genui ne, noncharacter purpose,‖ (2) ―must be relevant‖ to that noncharacter purpose, and (3) the ―probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice.‖ 98 Additionally, as we recently clarified in State v. Lucero , ―matters of conditional relevance must also meet the preponderance of the evidence standard under‖ rule 104(b). 99 We conclude that the stolen rifle evidence meets each of these requirements.

A. The E vidence Was O

ffered F or a G enuine N

on c haracter P urpose

¶58 E vidence that Mr. Reece had a stolen assault rifle was offered for the noncharacter purpose of identifying Mr. Reece as the murderer by showing that he had access to the type of gun investigators determined was likely the murder weapon. A State firearms exp ert matched the broken guide rod found in the victim‘s

hom e to a 9 mm Beretta 90

- Two handgun, and the owner of the stolen rifle testified that the weapon was stolen with a Beretta 90

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

he did not have a gun the day of the murder and that he saw someone else in the victim‘s home with a gun right after she was killed. He also testified that he did not own a Beretta handgun and claimed that Friend was lying when she testified that she saw him cleaning a Beretta the day before the murder. In other words, Mr.

Reece claimed that he could not have committed the murder because

he did not even have access to a Beretta when the victim was killed. Because police never recovered the murder weapon, there was no physical evidence to rebut that claim. Consequently, the central issue at trial was the identity of the killer. And evidence linking Mr. Reece

to a Beretta undermined his assertion that someone else killed the victim by showing that, contrary to hi s trial testimony, Mr. Reece had access to the type of gun that investigators had identified as the likely murder weapon. The stolen rifle evidence was therefore offered for the genuine noncharacter purpose of establishing Mr. Reece‘s identity as the murde rer.
¶59 Mr. Reece maintains that even if the evidence was offered to prove his identity as the murderer, ―[t]o qualify as identity evidence,

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

98 Id.

99 Id.Cite as: 201 5 UT 4 5

Opinion of the Court

29 . . . the link between the evidence and the charged offense must be so unique as to constitute a signature.‖ He cites a number of cases where courts admitted evidence of a defendant‘s prior crimes under rule 404(b) because the prior crimes bore ―numerous .

. . signature

like similarities‖ with the charged offense. Mr. Reece‘s argument is inconsistent, however, with the pl ain language of rule 404(b) and our

caselaw.

¶60 It is true that cases where rule 404(b) evidence is offered to prove identity often involve signature crimes. 100 But the language of rule 404(b) does not limit identity evidence in such a manner and

neither does o ur caselaw. Rule 404(b)(2) provides that evidence of prior bad acts ―may be admissible‖ to prove ―motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.‖ 101 We have recognized that the permissible uses o f

bad

- acts evidence listed in rule 404(b) is illustrative, ―not exhaustive,‖ and ―evidence demonstrating other purposes is not precluded so long as the evidence is offered for a legitimate purpose other than to show the defendant‘s propensity to commit the crime charged.‖ 102 We see no reason why the language of the rule requires the exclusion of evidence that, though probative of identity, does not involve a signature crime.

¶61 Our caselaw is also inconsistent with such a limitation. In State v. Shaffer , we affi rmed a trial court‘s decision in a murder trial

to admit evidence that the defendant stole a wallet. 103 We noted that after the wallet was stolen, the owner‘s identification was used to

100 See, e.g.

, State v. Decorso , 1999 UT 57, ¶¶ 27, 31

, 993 P.2 d 837 (admitting evidence that the defendant burglarized a shoe store in West Jordan because there ―were numerous similarities between the crimes committed at‖ that store and another store in Draper, ―suggesting that the same person committed both crimes‖) ; State v.

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

evidence that a defendant stole a car in another state was inadmissible because ―[t]he only similarities apparent on the record between the two incidents are that (1) a car was stolen (2) from a dealership lot‖ and this ―pair of facts is not sufficiently unique as to constitute a signature‖ (internal quotation marks omitted)).

101 U TAH R. E VID

. 404(b)(2).

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

103 State v. Shaffer , 725 P.2d 1301, 1308 (Utah 1986).S T ATE v. R EECE
Opinion of the Court

30 obtain a gun permit and purchase a .38 caliber weapon that was used

to k ill the victim. 104 Because the ―theft of [the] identification provided the first link in the chain of evidence that connected the .38 caliber weapon . . . with the defendant and the [victim‘s] death,‖ we concluded that the theft was ―relevant to establishing the identity of the defendant as the person in possession‖ of the murder weapon. 105

¶62 Similarly, in Salt Lake City v. Alires , the Utah Court of Appeals determined that a trial court properly admitted evidence

that the defendant had tried to break into the vi ctim‘s home in a prosecution for telephone harassment. 106 The police had responded to a 911 call and found the defendant ―banging on a window‖ at the back of the victim‘s apartment. 107 The defendant told the police that he lived in the apartment and was trying to get in to see his girlfriend and baby. 108 After confirming that the defendant did not live there and that the victim did not want to see him, the police

asked him to leave. 109 One hour later, someone called the victim, asked her why she had called the poli ce, and threatened to kill her daughter if she did not let him see her. 110 Even though the attempted

break

- in did not involve ―a common plan or scheme‖ 111 similar to the threatening phone call, the court of appeals concluded that the

incident was admissible as identity evidence under rule 404(b) because ―the facts clearly link the two incidents and tend to identify [the] defendant as the caller.‖ 112

¶63 These cases demonstrate that evidence of a prior crime offered to identify a defendant need not bear ―signature

- li ke‖ similarities with the charged offense to be admissible under rule 404(b). Rather, any evidence that is probative of identity for reasons other than establishing a propensity for criminal activity may be admitted under the rule, provided of course that it also clears other

104 Id.

105 Id.

106 2000 UT App 244, ¶¶ 2

– 6, 12

– 13 , 9 P.3d 769

.

107 Id. ¶ 2.

108 Id.

109 Id.

110 Id. ¶ ¶ 3

– 4

.

111 Id. ¶ 13.

112 Id.Cite as: 201 5 UT 4 5

Opinion of the Court

31 pertinent evidentiary hurdles. 113 And here, as we have discussed, the stolen rifle evidence was offered for just such a purpose.

B. The E vidence is R elevant to I dentify Mr. Reece as t he M urderer

¶64 Having concluded that the stolen rifle e vidence was offered for the noncharacter purpose of identifying Mr. Reece as the murderer, we now examine whether the evidence is relevant to that purpose. ―Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it woul d without the evidence; and (b) the fact is of consequence in determining the action.‖ 114 This is not a particularly high bar to clear

— we have previously stated that any ―[e]vidence that has even the slightest probative value‖ is

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

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

― whether a fact exists ,‖ 116 the prior act is only admissible if the trial court determines that ―the jury could reasonably find‖ that factual

condition ful filled ―by a preponderance of the evidence.‖ 117

¶65 Here, Mr. Reece‘s access to a 90

- Two Beretta has no bearing on the identity of the murderer unless such a weapon was actually used to kill the victim. The relevancy issue in this case therefore presents us wit h two questions: (1) Does possession of the stolen rifle

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

, United States v. Treff

, 924 F.2d 975, 981

– 82 (10th Cir. 199 1) (concluding that

evidence that the defendant killed his wife and fled with his children was relevant to establish the defendant‘s identity as the arsonist of another home); State v. Gillispie , 26 A.3d 397, 413 (N.J. 2011) (noting that rule 404(b) ―is no t so narrow with respect to proof of identity‖ to preclude evidence that the defendant had used the murder weapon in a subsequent crime from admission in his murder trial even though the later crime was not similar in any way to the murder);

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

that ― prior bad acts evidence may be admitted under [rule] 404(b) when that evidence is probative of identity for other reasons, and its admissibility is not limited to signature crimes‖ (internal quo tation marks omitted)).

114 U TAH R. E VID

. 401.

115 State v. Jaeger , 1999 UT 1, ¶ 12, 973 P.2d 404 (alteration in original) (internal quotation marks omitted).

116 U TAH R. E VID

. 104(b).

117 Lucero , 2014 UT 15, ¶ 19 (internal quotation marks omitted)

.S T ATE v. R EECE
Opinion of the Court

32 make it more likely that Mr. Reece possessed a Beretta 90

- Two handgun the day of the murder? (2) Could a reasonable jury have found by a preponderance of the evidence that the murder weapon

was in fa ct a Beretta 90

- Two? We consider each question in turn and

conclude that the stolen rifle evidence w as relevant to establishing

Mr. Reece‘s identity as the murderer.

¶66 First, Mr. Reece‘s possession of the stolen rifle has at least some ―tendency‖ to make it more probable that he had access to a

Beretta 90

- Two handgun. Investigators testified that the serial
number of the stolen rifle found in Mr. Reece‘s car matched a weapon that was stolen in Park City six months before the murder.
And the rifle‘s owner test ified that it was stolen along with ―a

Beretta 90

- Two 9 mm pistol.‖ It is certainly possible, as Mr. Reece points out, that he purchased the stolen rifle from someone else and that the Beretta found its way to another black

- market purchaser.

But Mr. Reece‘ s possession of the stolen rifle also raises a nontrivial possibility that he stole both weapons himself or purchased them at the same time from the person who did. Even if the probability of either scenario is somewhat remote, evidence that ―has any tende ncy‖ to make a fact of consequence more or less probable is

relevant and admissible. 118

¶67 Second, there is enough evidence in the record to justify a jury finding by a preponderance of the evidence that the murder weapon was in fact a 9 mm Beretta 90

- Two. Mr. Reece admitted that he owned a Beretta six months before the murder occurred, another witness testified that she saw Mr. Reece cleaning a Beretta the day before the murder, and the victim‘s blood was found on Mr. Reece‘s shirt. Additionally, the police fou nd a 9 mm shell casing at the crime scene, a firearms expert testified that the broken guide rod police recovered is ―a patented piece that‘s used exclusively by Beretta,‖ and the expert also testified that the broken guide rod ―matched the

one‖ used in a Beretta 90

- Two.

¶68 Mr. Reece argues that ―the State‘s proof was far from conclusive.‖ He points out that the State‘s expert ―conceded that at

least two other Berettas

— the 92A1 and the 96A1

— use the same guide rod.‖ But the expert also testified that the 96A1 w as a .40 caliber weapon, not a 9 mm . The expert testimony and the physical evidence therefore indicated that the murder weapon was either a 9

mm Beretta 90

- Two or a 92A1, and the expert affirmatively matched the guide rod to the 90

- Two model. A jury could therefore find by a

118 U TAH R. E VI D

. 401, 402 (emphasis added)

.Cite as: 201 5 UT 4 5

Opinion of the Court

33 preponderance of the evidence that the murder weapon was a

Beretta 90

- Two. And because it would not be unreasonable for the jury to reach such a conclusion, evidence linking Mr. Reece to a

Beretta 90

- Two is relevant to the noncharacter purpose of identifying

him as the murderer.

C. The E vidence W

as N ot U nfairly P rejudicial

¶69 ―[T]he final hurdle that prior bad acts evidence must overcome‖ is rule 403, 119 which provides that courts ―may exclude

relevant evidence if its probative value is s ubstantially outweighed by a danger of

. . . unfair prejudice.‖ 120 And ―unfair prejudice results only where the evidence has an undue tendency to suggest decision upon an improper basis.‖ 121 Weighing the probative value and potentially unfair prejudicial effec t of evidence involves a variety of considerations, including the factors we identified in State v.

Shickles

. 122 These factors are

the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the

interval of tim e that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility. 123

We recently clarified that ―while some of these factors may be helpful in assessing the probative value of the evidence in one context, they may not be helpful in another.‖ 124 So it is ―unnecessary for courts to evaluate each and every factor and balance them together in making their assessment.‖ 125 Accordingly, in det ermining the admissibility of the stolen rifle evidence under rule 403, we focus our analysis on the text of rule 403 and analyze only those Shickles

factors that are relevant to the circumstances of Mr. Reece‘s case. We

119 Lucero , 2014 UT 15, ¶ 30.

120 U TAH R. E VID

. 403.

121 Lucero , 201 4 UT 15, ¶ 32 (internal quotation marks omitted).

122 760 P.2d 291, 295

– 96 (Utah 1988), abrogated on other grounds by

State v. D o porto , 935 P.2d 484 (Utah 1997).

123 Id

. (internal quotation marks omitted).

124 Lucero

, 2014 UT 15, ¶ 32.

125 Id.S T ATE v. R EECE
Opinion of the Court

34 conclude that the probative value o f the evidence was not substantially outweighed by the potential for unfair prejudice.

¶70 The probative value of the stolen rifle was perhaps not strong, but it was also not insubstantial. The police never recovered the murder weapon, and Mr. Reece testified at trial that he did not have a gun the day of the murder. He also claimed that he had gotten rid of the only Beretta he ever owned in early 2010 and that someone else committed the murder. So even though the State had

DNA eviden ce that conclusively linked Mr. Reece to the crime, it also needed the stolen rifle evidence to effectively rebut Mr. Reece‘s claim that he did not have access to the type of weapon used to kill the victim. Of course, there was no evidence that Mr. Reece himself

stole the rifle or t hat he purchased the rifle with a stolen Beretta, so the link between Mr. Reece‘s possession of the stolen rifle and access to the murder weapon was somewhat attenuated. Additionally, the State‘s expert left open the possibility that the murder weapon was a Beretta 92A

- 1, not a 90

- Two. 126

¶71 But even though the evidence‘s probative value was not overwhelming, the potential for unfair prejudice is quite low considering the other unlawful behavior Mr. Reece admitted to on

the witness stand. He testified that he wa s in the victim‘s neighborhood stealing mail after several days of heavy drug use. He admitted that he entered several homes without permission and violently assaulted one of the residents he encountered without provocation. And he also told the jury that during his crime spree, he hit another car, sped off, and had to be tackled by several neighbors before police arrived. The fact that Mr. Reece also had a stolen rifle in his car, fled the police, and had to be subdued by a taser certainly

did not cast him in a positive light, but considering the variety and severity of the criminal conduct Mr. Reece admitted to at trial, it simply would not have roused the jury ―to overmastering hostility.‖ 127

¶72 In summary, we conclude that the stolen rifle evidence was

not i mproperly admitted under rule 404(b). The evidence was offered for the genuine nonchara cter purpose of identifying

Mr. Reece as the murderer by showing he had access to the type of gun investigators believed to be the murder weapon. And the fact

that the r ifle in his possession was stolen with a 90

- Two Beretta has

126 Supra ¶ 68

.

127 See Lucero , 2014 UT 15, ¶ 3 3

.Cite as: 201 5 UT 4 5

Opinion of the Court

35 at least some tendency to show that Mr. Reece had access to that type of weapon. Additionally, the State presented enough evidence to justify a jury finding by a preponderance of the evidence that the murder weapon was in fact a 90

- Two Beretta. Finally, the potential for unfair prejudice did not substantially outweigh the evidence‘s probative value in light of the criminal conduct that Mr. Reece freely admitted to in front of the jury.

IV. The T ria l C ourt D id N ot A buse its D iscretion by

D enying the M otion to S ever
¶73 Mr. Reece next argues that the trial court erred by refusing

to sever the third count in the indictment

— possession of a firearm by a restricted person

— from the other charges. Utah Code se ction

77

- 8a

- 1(4)(a) provides that a ―court shall order an election of separate trials of separate counts‖ if the court determines that ―a defendant

. . . is prejudiced by a joinder of offenses.‖ ―The burden of demonstrating prejudice is a difficult one, an d the ruling of the trial judge will rarely be disturbed upon review. The defendant must show something more than the fact that a separate trial might offer him a better chance of acquittal.‖ 128

¶74 Here, instead of completely severing the weapons charge,

the c ourt elected to bifurcate it, instructing the jury to determine if

Mr. Reece intentionally possessed a firearm on July 13. The jury found beyond a reasonable doubt that Mr. Reece possessed a weapon, and then in a separate proceeding before the judge, 129 the State introduced evidence of Mr. Reece‘s prior felo ny conviction.

Mr. Reece argues that the court‘s decision ―did not comply with the rules of evidence or [his] constitutional right to due process and a fair trial‖ because the jury was ―encouraged . . . to speculate about what circumstances made . . . possession‖ of the firearm ―illegal.‖ In support, he cites State v. Saunders 130 and State v. Long 131 for the proposition that severance is always required on a possession by a

128 State v. Smith , 927 P.2d 649, 654 (Utah Ct. App. 1996) (internal quotation marks omitted); see also State v. Benson , 201 4 UT App 92, ¶ 1 6, 325 P.3d 855

.

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

person element of the weapons charge.

130 699 P.2d 738 (Utah 1985)

, abrogated on other grounds by State v. Doporto , 935 P.2d 484 (Utah 1997)

.

131 721 P.2d 483 (Utah 1986).S T ATE v. R EECE
Opinion of the Court

36 restricted person charge when evidenc e of the defendant‘s legal disability ―would have been inadmissible at a separate trial‖ on the other charges. We conclude that refusing to sever the weapons

offense was not an abuse of discretion.

¶75 In Saunders

, the jury was presented with evidence that the defendant was a convicted felon in a trial for possession of a weapon by a restricted person, burglary, and theft. 132 We reversed his convictions because evidence of the prior conviction ―permit[ted] the jury to consider evidence of [the] defendant‘s prior crime as the basis for an inference that he committed the burglary and theft.‖ 133 And in Long , we noted that the ―refusal to sever the possession of a dangerous weapon charge from the remaining charges was an abuse of discretion because of the unwarranted pr ejudice inherent in informing the jury that a defendant is a convicted felon.‖ 134 The jurors in Mr. Reece‘s case, by cont rast, never saw evidence of

Mr. Reece‘s prior criminal history. Rather, the court instructed the jury that it is ―unlawful under certain circumstances for a person to purchase, transfer, possess, use, or have under his control or custody a firearm.‖ The jurors may have wondered what ―circumstances‖ made Mr. Reece‘s possession of a firearm illegal, and some of them may have speculated that M r. Reece had a prior criminal history. But it is equally plausible that the jurors believed that the possession instruction related to the other charges

— for instance, committing burglary with a dangerous weapon is a different offense than simple burglary

. Mr. Reece has therefore failed to meet his heavy burden of demonstrating that the court abused its discretion by refusing to sever the weapons charge.

V. The A ggravated M urder S entencing S tatute is N ot

U nconstitutional, but M r. Reece is E ntitled to a N ew H earing

¶76 Finally, Mr. Reece argues in the alternative that the noncapital aggravated murder sentencing statute is unconstitutional. Because his arguments mirror those we recently rejected in State v.

Perea

, 135 we conclude that the statute is constitutiona l. M r. Reece also argues that the trial court abused its discretion when it sentenced him to life without parole (LWOP) because it incorrectly interpreted the sentencing statute as imposing a presumptive LWOP sentence.

132 699 P. 2d at 740

– 41

.

133 Id. at 741.

134 721 P.2d at 495.

135 2013 UT 68, ¶¶ 110

– 2 5 , 322 P.3d 624.Cite as: 201 5 UT 4 5

Opinion of the Court

37 Although there is some evidence that the court properly weighed the pertinent sentencing factors, we remand for a limited hearing to determine whether, and if so, how the court‘s erroneous interpretation of the statute affected the decision to impose an

LWOP sentence.

A. The S entencing S tatute i s C onstitutional

¶77 The aggravated murder sentencing statute provides that a sentence of first degree felony aggravated murder ―shall be life in prison without parole or an indeterminate prison term of not less than 25 years and which may be for life.‖ 136 Mr. R eece contends that the sentencing statute is unconstitutional for three reasons: (1) the statute ―is unconstitutionally vague because, unlike Utah‘s other LWOP statutes, it provides no guidance for when to impose LWOP‖; (2) the statute violates Utah‘s cons titutional guarantee ―that the operation of the law be uniform‖; and (3) the statute violates the ―federal and state constitutions‘ guarantee that cruel and unusual punishments shall not be inflicted‖ as well as Utah‘s ―unnecessary rigor‖ clause. We reject ed each of these arguments in State v. Perea

, and we reject them again here.

¶78 In Perea , the defendant argued that the aggravated murder sentencing statute was ―unconstitutionally vague,‖ 137 because ―it does not specify the particular items the sentencing cour t must consider in deciding which of the two possible sentences to impose.‖ 138 We concluded that the statute is constitutional. We

observed that the statute must be read in the context of other provisions mandating that the criminal code ― shall be construed

. . . [to p]revent arbitrary and oppressive treatment‖ and to impose ―penalties which are proportionate to the seriousness of offenses.‖ 139 Consequently, we concluded that before a sentencing court imposes an LWOP sentence, it must ―consider all the evidence before it

— the totality of the circumstances

— [and impose] a sentence that is proportionate to the crime and the culpability of the defendant.‖ 140

Mr. Reece‘s vagueness challenge is no different than the argument we rejected in Perea

— he maintains that the sta tute is

136 U TAH C ODE § 76

- 3

- 207.7(2).

137 2013 UT 68, ¶ 110.

138 Id. ¶ 115.

139 Id. (alteration s in original) (internal quotation marks omitted).

140 Id.S T ATE v. R EECE
Opinion of the Court

3 8 unconstitutional because it ―provides no guidance on when to impose‖ LWOP instead of a sentence of twenty

- five years to life in prison. Accordingly, we reject the vagueness challenge on stare decisis grounds.

¶79 Our decision in Perea also rejected the defendant‘s argument that the sentencing statute ―violates the uniform operation of laws provision of the Utah Constitution.‖ 141 We observed that ―[n]ot all those found guilty of aggravated murder are similarly situated‖

because ―each case and each defendan t presents a different set of facts and a different combination of aggravating and mitigating
factors.‖ 142 And ―because the discretion given to district courts‖ to weigh those factors ―furthers the legitimate legislative purpose of sentencing offenders based on the severity of their particular circumstances,‖ we concluded that the sentencing statute ―does not violate [the] uniform operation of laws provision.‖ 143 Mr. Reece similarly argues that the sentencing statute runs afoul of the uniform operation of laws provision ―because it divides a class of similarly situated offenders into two subclasses who will receive disparate treatment but defines no reasonable objective with which to differentiate the subclasses.‖ Our analysis in Perea speaks directly to

that is sue, and we see no reason to revisit it.

¶80 Finally, the defendant in Perea also unsuccessfully challenged the sentencing statute under the unnecessary rigor provision of the Utah Constitution and the cruel and unusual punishment provision of the United State s Constitution. We rejected the unnecessary rigor challenge because that provision ―applies only to the conditions of one‘s confinement and does not speak to the proportionality of the particular sentence imposed,‖ so the provision was ―not implicated by t he imposition of‖ an LWOP sentence. 144 And we determined that the cruel and unusual punishment challenge was meritless because the defendant was an adult, did not face the death penalty, and did not commit a non

- homicide crime, so

none of the United States S upreme Court precedent the defendant cited demonstrated that an LWOP sentence violated the Eighth

141 Id. ¶ 121.

142 Id. ¶ 123.

143 Id.

144 Id. ¶ 124.Cite as: 201 5 UT 4 5

Opinion of the Court

39 Amendment. 145 Here, Mr. Reece argues that the sentencing statute violates the Eighth and Fourteenth Amendments of the federal
constitution because ―the statute leaves the LWOP decision to the unfettered discretion of the judge, thereby allowing LWOP to be imposed in an ar bitrary and capricious manner.‖ But like the

defendant in Perea , Mr. Reece cites only to death

- penalty cases, and he does not identify any compe lling factual circumstances that make LWOP an excessively harsh sentence in this case. Thus, just as with Mr. Reece‘s other constitutional challenges, Perea is directly on point, and Mr. Reece has not raised any compelling reason why we should revisit any of our conclusions in that case. Accordingly, we conclude that the aggravated murder sentencing statute is constitutional.

B. We R emand for the Court to D etermine W hether, and if so,

H ow I ts I ncorrect R eading of the S entencing St atute A ffected

I ts S entenc ing D ecision

¶81 Mr. Reece maintains that even if the sentencing statute is constitutional, the court abused its discretion in sentencing him to
LWOP because its decision resulted from ―the incorrect belief that LWOP was the presumptive sentence‖ and because t he court based

its decision on ―irrelevant and unreliable information‖ without considering Mr. Reece‘s potential for rehabilitation. ―We afford the trial court wide latitude in sentencing and, generally, will reverse a trial court‘s sentencing decision onl y if it is an abuse of the judge‘s

discretion.‖ 146 Additionally, we have held that the due process clause of the Utah Constitution ―requires that a sentencing judge act on reasonably reliable and relevant information in exercising discretion in fixing a sent ence.‖ 147

¶82 Our review of the cour t‘s post

- sentence ruling on

Mr. Reece‘s constitutional challenges confirms that the court

145 Id. ¶ 125 (citing Roper v. Simmons , 543 U.S. 551, 574 (2005) (holding that juveniles cannot be sentenced to death); Graham v.

Florida , 560 U.S. 48, 75 (2010) (concluding that the Eighth Amendment prohibits an LWOP sentence for juvenile defe ndants who did not commit a homicide); Atkins v. Virginia , 536 U.S. 304, 318 (2002) (holding that defendants with an IQ below 70 cannot receive capital punishment)).

146 State v. Bluff

, 2002 UT 66, ¶ 66, 52 P.3d 1210 (internal quotation marks omitted)

.

147 Sta te v. Howell , 707 P.2d 115, 118 (Utah 1985).S T ATE v. R EECE
Opinion of the Court

40 determined, at some point, that LWOP was the presumptive

sentence. But it is not clear whether the court reached that conclusion

before or after it imposed Mr. Reece‘s se ntence. In the trial court,

Mr. Reece argued that the sentencing statute was unconstitutional because it ―does not allow a jury to decide a sentence in a first degree felony aggravated murder case.‖ He cited Apprendi v. N ew Jersey

, where the Supreme Court held that ―any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury

, and proved beyond a reasonable doubt. ‖ 148 Relying on Apprendi , the trial court rejected Mr. Ree ce‘s constitutional challenge in a post

- trial ruling. The court concluded that because ―the language of the statute sets forth the presumption that the sentence of aggravated murder shall be life without parole ,‖ any additiona l fact finding would reduce Mr

. Reece‘s sentence rather than increase it, so ―the holding in Apprendi does not apply.‖

¶83 The State concedes that this was an incorrect interpretation of the statute, and we agree. 149 But the State insists that ―[n]othing in the court‘s sentencing analysis or decision demonstrates or even implies that the court‘s mistaken interpretation influenced its decision to impose LWOP.‖ In support, the State points out that the court never indicated at the sentencing hearing that LWOP was the presumptive sentence and th e court explicitly stated that the ―two options here are 25 [years] to life or life without parole.‖ It was not until the court‘s post

- trial ruling

— which was issued after the imposition of Mr. Reece‘s sentence

— that the court incorrectly interpreted the sen tencing statute in addressing Mr. Reece‘s Apprendi
argument.

¶84 The record is simply inconclusive on this point. At the sentencing hearing, the trial court observed that Mr. Reece did ―well in school as a young man‖ and had ―two girls‖ in his life that he

lov es

— a girlfriend and a daughter. But the court ultimately

determined that based on the violent nature of the crime and Mr. Reece‘s history of violence, ―the only way to protect people‖ was ―to give [Mr. Reece] life without parole.‖ On its face, the court‘s analysis appears sound

— it ―considered the totality of the circumstances and

148 530 U.S. 466, 490 (2000).

149 The aggravated murder sentencing statute does not create a presumption in favor of imposing LWOP. The statute provides, ―The sentence [for first degree felony aggravated murder] sh all be life in prison without parole or an indeterminate prison term of not less than 25 years and which may be for life.‖ U TAH C ODE § 76

- 3

- 207.7 (2)

.Cite as: 201 5 UT 4 5

Opinion of the Court

41 explicitly weighed the mitigating and aggravating factors.‖ 150 But the court‘s post

- trial ruling, which was issued just eight days later, states that LWOP was the presumptive senten c e. It is therefore unclear whether the court analyzed the pertinent sentencing factors to choose between LWOP and twenty

- five years to life, or whether it analyzed the factors to determine whether the circumstances justified a departure from an incorrectly presumed LWOP sentence. Consequently, we remand this question to the trial court. On remand, the court should determine whether its incorrect reading of the sentencing statute affected its decision to impose LWOP. If so,

then Mr. Reece‘s sentence on the a ggravated murder charge must be vacated, and the court must hold a new sentencing hearing.

Conclusion

¶85 We affirm Mr. Reece‘s convictions. The failure to issue several lesser included offense instructions was harmless error, the

court did not abuse its disc retion in limiting voir dire questioning, the stolen rifle evidence was properly admitted under rule 404(b), and the court did not exceed its discretion by denying Mr. Reece‘s motion to sever the weapons charge. We also reject Mr. Reece‘s

constitutional ch allenges to the aggravated murder sentencing

statute because his arguments mirror those we rejected in State v.

Perea . But we agree with Mr. Reece that the trial court incorrectly interpreted the sentencing statute as imposing a presumptive LWOP

sentence. We accordingly remand for the court to determine whether

its incorrect reading of the statute affected its decision to impose LWOP. On remand, if the court determines that its sentencing decision was affected by an erroneous reading of the statute, Mr.

Ree ce is entitled to a new sentencing hearing.

150 See Perea , 2013 UT 68, ¶ 119.