State v. Samora , 2021 UT App 29 ( 2021 )

2021 UT App 29THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
SHANE PATRICK SAMORA,
Appellant.
Opinion
No. 20180983-CA
Filed March 18, 2021
Third District Court, Salt Lake Department
The Honorable Linda M. Jones
No. 171906629
Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard,
Attorneys for Appellee
JUDGE RYAN M. HARRIS authored this Opinion,
in which JUDGE DAVID N. MORTENSEN and
SENIOR JUDGE KATE APPLEBY concurred. 1
HARRIS, Judge:
¶1 A jury convicted Shane Patrick Samora of aggravated
robbery for holding up a convenience store at knifepoint.
Samora appeals that conviction, asserting that the trial court
improperly admitted two categories of evidence used at trial,
and that the evidence was insufficient to establish that he was
the robber. We affirm.
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
State v. Samora
BACKGROUND 2
¶2 Just after dusk one summer evening, a clerk (Clerk) on
duty at a Chevron convenience store observed a man enter the
store wearing black and white tennis shoes, black shorts, and “a
pullover hoodie.” Clerk and the man were the only people in the
store at the time. Clerk greeted the man, and went to the register
to assist him. Once Clerk arrived at the register, he looked up
and noticed that the man was wearing “a mask over [his] face.” 3
The man told Clerk, “This is a robbery,” and instructed Clerk to
“[g]ive [him] the money.” Clerk initially thought the man was
joking. The man repeated his demand, and Clerk responded by
telling the man to “get out of [the] store.” The man then took out
a ten-to-twelve-inch kitchen knife, showed it to Clerk, and stated
his demand for money a third time.
¶3 At this point, Clerk realized the situation was “more
serious” than he initially thought, and he told the man, “[G]et
out of my store or I’ll call the cops. I’m not going to give you any
money.” The man then thrust the knife “across the counter,” and
pointed it “directly” at Clerk. Although Clerk was “very
frightened” and “took a step back” away from the knife, he
again told the man to leave and that he was “calling the cops.”
This time, the man left, and Clerk decided to “follow [him] out
of the store.”
2. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” Layton City v. Carr, 2014 UT App 227, ¶ 2 n.2, 336 P.3d
587 (quotation simplified).
3. The events in question occurred in 2017, before the onset of the
COVID-19 pandemic; at that time, it was unusual to encounter
people wearing masks over their faces in public places.
20180983-CA 2 2021 UT App 29State v. Samora
¶4 Once he was outside the store, still following the man,
Clerk called 911 on his cell phone. While on the phone with the
911 operator, Clerk continued to trail the man, but briefly lost
sight of him for about ten seconds as the man turned a corner
onto the sidewalk and disappeared behind a fence. The sidewalk
where the man was walking did “not [have] foot traffic” that
night. Clerk continued walking in the direction he had seen the
man go, and after rounding the same corner onto the same
sidewalk he saw “an individual dressed in the same clothing”
and with the “same height, same body build” as the robber
walking in the direction the man had been walking. At this point
Clerk was “30 to 40 feet” behind the man, and followed him to
“a place of residence,” which Clerk described as a “gray
building” with a green “awning on the front of it.” Clerk
watched the man enter the building through a door located
beneath the green awning. Clerk had remained on the phone
with the 911 operator the entire time he followed the man, and
he described to the operator in real time the building—including
its address—that the man had just entered.
¶5 Immediately after getting off the phone with the 911
operator, Clerk returned to the store and called his manager
(Manager), who was out of town on vacation, to inform her of
the robbery. The convenience store was equipped with a
surveillance system that recorded video but not audio, and
which could be accessed remotely via a cell phone application.
Upon receiving the call from Clerk, Manager—who was the only
person with access to the surveillance system—immediately
accessed the application on her cell phone and “watched what
had happened.” Manager took six screenshots of the footage of
the robbery and sent them to Clerk via text message. In those
screenshots, a masked man can be seen entering the store and
approaching the counter, and later pointing a knife at Clerk. The
man in the screenshots has a “horseshoe shape[d]” receding
hairline, and is wearing white athletic shoes with crisscrossed
black laces, black shorts, and a black hooded sweatshirt over a
20180983-CA 3 2021 UT App 29State v. Samora
white t-shirt. In most of the screenshots, the man has a mask
over the bottom part of his face.
¶6 Police responded within five minutes, with one officer
meeting Clerk at the convenience store while two others were
dispatched to the gray building Clerk had seen the man enter.
Upon their arrival at the building, the two officers saw a man
standing in the doorway who appeared to match the description
given by Clerk; the man was “wearing a white shirt with black
shorts,” as well as white athletic shoes with small red marks on
the sides and black laces tied in a distinctive crisscross pattern.
This man was Samora, and soon after “ma[king] eye contact”
with one of the officers, he went inside and shut the door. The
officers then approached the doorway, which turned out to lead
into a residential apartment where Samora lived, and
subsequently placed Samora under arrest, taking (among other
things) Samora’s shoes as evidence.
¶7 Meanwhile, officers took a statement from Clerk, and the
investigating detective (Detective) acquired electronic copies of
the six screenshots that Manager had sent to Clerk.4 Detective
then traveled to the apartment building, visually compared
Samora to the man in the photos, and “felt comfortable” that
Samora was the robber.
4. About three weeks after the robbery, Detective attempted to
obtain the entire surveillance video of the incident from a
computer in the store office, where footage from the surveillance
system is typically stored. But Detective was unable to recover
the video, apparently because the system is set to periodically
and routinely delete video files unless action is taken to save
them, and no one had saved the entire video before the routine
deletion occurred. Accordingly, the six screenshots are the only
evidence available from the video taken by the surveillance
system on the night of the robbery.
20180983-CA 4 2021 UT App 29State v. Samora
¶8 Detective obtained a warrant to search Samora’s
apartment. While executing the search, Detective found a knife
in a kitchen drawer that looked similar to the knife used in the
robbery. Detective also found a “dark-colored hoodie,” featuring
a distinctive “chevron” pattern, hanging on a hook located on
the wall “right next to the door in the entryway.” Detective took
the knife and the hoodie as evidence.
¶9 The State charged Samora with aggravated robbery, a
first-degree felony. 5 As the case proceeded toward trial, the State
recognized that two characteristics of the clothing taken from
Samora and from his apartment do not appear on the person in
the screenshots from the surveillance video: (1) the distinctive
chevron pattern on the hoodie found in the apartment; and (2)
the red marks on the sides of the otherwise-white athletic shoes
Samora was wearing during his arrest. Believing that the
absence of these two features in the screenshots could be due to
the way the store’s surveillance system captures images,
Detective and a forensic examiner took the hoodie and the shoes
to the store and attempted to “reconstruct” the screenshots taken
of the surveillance system footage. Detective and the examiner
attempted “to match[] up” the crime scene “as best [they] could”
by reconstructing the scene at night. The shoes were also
arranged in certain ways, such as “plac[ing] something
underneath the shoe” to “recreate the step and the walking
motions” taken when the robber walked into the store, and
5. As defined, the crime of “aggravated robbery” includes the
“use[] or threat[] to use a dangerous weapon,” and can occur not
only “during the commission of . . . a robbery,” but also “in an
attempt to commit . . . a robbery.” See Utah Code Ann. § 76-6-
302(1), (3) (LexisNexis 2017). In this case, Samora was charged
with aggravated robbery even though he did not actually
succeed in taking anything, and he does not contest the State’s
use of the statute in this manner.
20180983-CA 5 2021 UT App 29State v. Samora
“us[ing] the grout lines” in the floor to arrange the shoes exactly
where the robber was when he approached the counter.
Detective also held up the hoodie in front of the counter in
roughly the same place the robber would have occupied, and at
roughly the same height.
¶10 Through counsel, Samora filed a pretrial motion to
exclude the comparison photos taken at the reconstructed crime
scene. The trial court held a hearing to consider the motion,
during which Detective testified about how the comparison
photos had been generated. Detective also explained how, when
viewing the comparison photos, it was not possible to see either
the red coloring on the shoes or the chevron pattern on the
hoodie; in those photos, taken using the store’s surveillance
system, the shoes appeared entirely white (apart from the black
crisscrossed laces), and the hoodie “appear[ed] jet black,”
without any visible pattern. After argument, the court
determined that the comparison photographs’ probative value
was high, that the evidence would “not be cumulative,” and that
the probative value was not substantially outweighed by
considerations such as wasting time or confusing the jury. The
court made a “conditional” ruling that the comparison photos
were admissible, so long as the State “la[id] the adequate
foundation” at trial.
¶11 After his arrest, Samora was detained in the county jail for
several days, during which time he made several phone calls to
his wife (Wife), in which they discussed the events that took
place on the night of the robbery. The calls Samora made from
jail were all being recorded, and he knew it. The State first asked
the trial court to admit these recordings pursuant to rule 404(b)
of the Utah Rules of Evidence. Samora objected and, after a
hearing, the court ruled that none of the recordings were
admissible under rule 404(b) because they did “not support . . .
noncharacter purposes,” and that, viewed through a prior-bad-
acts lens, they were also inadmissible under rule 403 of the Utah
20180983-CA 6 2021 UT App 29State v. Samora
Rules of Evidence because “the probative value of the [calls was]
substantially outweighed by the danger of unfair prejudice,
confusing the issues, and misleading the jury.”
¶12 Later, however, the State made a more targeted effort,
seeking admission of only five short clips of the phone calls, and
this time representing that it had “carefully cut each clip to
eliminate any [rule] 404(b) related conduct.” This time, the State
relied on rules 104(b) and 801(d)(2) of the Utah Rules of
Evidence as the basis for admission, characterizing the
statements Samora made in the five clips as utterances that a
reasonable jury could find relevant as statements of a party-
opponent. Samora’s counsel objected to two of the clips in their
entirety, and to part of a third clip; the trial court sustained that
objection again under rule 403, and barred the State from
introducing the clips to which Samora’s counsel had objected.
But Samora’s counsel did not object to the two other clips and
the remaining portion of the third clip, because she did not
believe that Samora had “legal grounds to object” to them. The
three clips that survived this pretrial motion were all played for
the jury during trial.
¶13 The first of the three clips was from a call Samora placed
to Wife on the day after he was arrested:
Wife: Well, that’s what, well, number one, did
you actually get anything out of it?
Samora: No.
Wife: Did you actually take anything?
Samora: No, it—
Wife: Well, then they’re—right now they’re
charging you with aggravated robbery,
which they need to lower it to attempted
if you didn’t steal—if you didn’t take
anything.
20180983-CA 7 2021 UT App 29State v. Samora
Samora: I didn’t—I didn’t even go in there, baby.
[inaudible] Listen, I wasn’t even around.
These phones are recorded. I didn’t—I
wasn’t even around there.
The second clip was from later in the same phone call:
Samora: I ain’t admitting to nothing. I’m just
hypothetically saying . . .
Wife: Yeah.
Samora: You already told me that the guy from
the store followed me home.
Wife: Yeah.
Samora: The guy from the store followed me
home.
Wife: Yeah, I know. I saw him out there. I was
like “Oh shit.” That’s the guy that I know
that always gives me shit when I—you
know, when I go in.
Samora: Yeah. Where was he? Over by where the
police parked?
Wife: Yeah.
Samora: Oh. Did he see you?
Wife: You said—you said Conoco, so I thought
you meant the Texaco. And then when I
saw him, I thought, “Fuck, it was the
Chevron.”
Samora and Wife: [laughing]
And the third clip was from a phone call four days after the
robbery, when Samora and Wife were again referring to Clerk:
20180983-CA 8 2021 UT App 29State v. Samora
Samora: Cuz [sic] he’s always been our friend. I
don’t know why he’d accuse me of
something.
Wife: Right.
Samora: We’ve always been good with him.
Wife: Yup.
Samora: Got no right to accuse me. You know, just
challenge, say hey, you know, “That’s my
husband you’re accusing.” [inaudible]
Wife: Right. You know when adrenaline’s
pumping and things are happening, you
know, your, you know, your perceptions
of things tend to not be always accurate.
Samora: Yup. And so far, so good. I just—the
thing that I’ve been thinking about too is
he had to be real close to me to see me
turn into the apartment. I—
Wife: Yeah.
Samora: I wasn’t—I wasn’t walking or running
from nobody. So—
Wife: Uh-huh.
Samora: I don’t know. You know, there’s seven
apartments. They could have seen
anybody go into any apartment. I don’t
know why they are saying, or thinking,
that it was our apartment, something that,
you know—
Wife: Right.
Samora: Then we went right to the door and
opened the door with some smokes.
Wife: Yeah.
20180983-CA 9 2021 UT App 29State v. Samora
Samora: Ain’t trying to hide.
Wife: Yeah. Yes, I know, baby.
Samora: Okay baby.
Wife: We’ll get this figured out.
Samora: We got the plan. You got the plan now,
though.
¶14 The case proceeded to trial, where the State attempted to
lay sufficient foundation for admission of the comparison
photos. To that end, Manager testified that the surveillance
system cameras had not been moved since the robbery, and were
in the same position when the comparison photos were taken.
Clerk confirmed that neither the surveillance system nor the
store itself had changed since the robbery occurred. Eventually,
the court determined that the State had established sufficient
foundation to admit the photos for “the very limited purpose” of
allowing the jury to “compare” the reconstructed crime scene
photos to the screenshots of the robbery. In its pretrial ruling, the
court was careful to specify that it would ultimately be up to the
jury to decide whether the comparison was effective, cautioning
that the State would not be allowed to “present evidence on the
ultimate issue as to whether [the] items and information
depicted in the demonstrative photos are, in fact, [the] items and
information reflected in the store’s . . . surveillance footage” from
the night of the robbery. At trial, the court enforced that edict,
and determined after presentation of the evidence that the State
had “not crossed that line.”
¶15 The State also presented testimony from Clerk, Manager,
Detective, and other police officers, each of whom testified about
the robbery as outlined above. During his testimony, Clerk noted
that, because of the mask on the robber’s face, he had been
20180983-CA 10 2021 UT App 29State v. Samora
unable to definitively identify Samora in a photo lineup. 6 Clerk
nevertheless testified that he was “100 percent positive” that the
man he followed to the gray apartment building was the same
person who had attempted to rob the store.
¶16 Samora defended the case chiefly on identity grounds,
arguing that the State failed to prove that he was the robber
depicted in the screenshots. In particular, Samora’s counsel
questioned Clerk’s ability to effectively identify the person he
was following because it was dark, and characterized the State
as being “creative” for rendering the comparison photos after it
had been unable to produce the actual surveillance video of the
robbery. At the conclusion of the State’s case-in-chief, Samora
moved for a directed verdict, arguing that there was insufficient
evidence to make a “prima facie case for identification.” The
court denied the motion, finding that there was “sufficient
evidence from which a jury acting reasonably could convict the
6. Sometime during the investigation, Clerk was presented with
a photo lineup depicting six individuals, colloquially known as a
“six-pack lineup,” from which he “was not able to make a
positive identification.” After being presented with the six-pack,
Clerk indicated that, with respect to the first photo, he was “75
percent sure” it was the robber, and with respect to the second
photo, he was “50 percent” confident that it depicted the robber.
The second photo was a mugshot of Samora at the time of his
arrest. Samora’s defense strategy included suggesting that the
individual depicted in the first photo of the lineup was actually
the robber, and that the police just “dropped” the search for that
individual after some investigative phone calls came up empty.
Detective testified that he “tried to locate” this man, even
contacting California state and federal authorities to attempt to
find a last known address, but he was unable to determine the
whereabouts of the individual from the first photo.
20180983-CA 11 2021 UT App 29State v. Samora
defendant and [that] the State ha[d] established a prima facie
case on the charged offense.”
¶17 After deliberation, the jury found Samora guilty of
aggravated robbery, and the court later sentenced him to prison.
ISSUES AND STANDARDS OF REVIEW
¶18 Samora now appeals his conviction, and asks us to
consider three main issues, as well as a motion for remand under
rule 23B of the Utah Rules of Appellate Procedure. First, he
asserts that the trial court erred by admitting the reconstructed
comparison photos. Trial courts have “broad discretion to admit
or exclude evidence,” and we will disturb an evidentiary ruling
“only for [an] abuse of discretion.” See State v. Perea, 2013 UT 68,
¶ 31, 322 P.3d 624 (quotation simplified).
¶19 Second, Samora argues that the three audio clips from his
jail phone calls should not have been admitted. Samora
acknowledges that he did not object to these three clips at trial,
and that therefore this challenge is not preserved. “When a party
fails to raise and argue an issue in the trial court, it has failed to
preserve the issue, and an appellate court will not typically reach
that issue absent a valid exception to preservation.” State v.
Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443. Samora invokes two of
our preservation exceptions, and asks us to review this issue for
both plain error and ineffective assistance of counsel. To
“persuade an appellate court to reach [an] issue” based on the
trial court’s plain error, the appellant “must establish that (i) an
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful. If any one of these
requirements is not met, plain error is not established.” Id.
¶¶ 19–20 (quotation simplified). And an ineffective assistance of
counsel claim “raised for the first time on appeal presents a
question of law, which we consider de novo.” State v. King, 2018
UT App 190, ¶ 11, 437 P.3d 425 (quotation simplified).
20180983-CA 12 2021 UT App 29State v. Samora
¶20 Third, Samora challenges the trial court’s denial of his
motion for directed verdict based on his contention that the
evidence the State presented was insufficient to support a
determination that he was the robber. “We will uphold a trial
court’s denial of a motion for directed verdict based on a claim
of insufficiency of the evidence if, when viewed in the light most
favorable to the State, some evidence exists from which a
reasonable jury could find that the elements of the crime had
been proven beyond a reasonable doubt.” State v. Gonzalez, 2015
UT 10, ¶ 27, 345 P.3d 1168 (quotation simplified).
¶21 Finally, Samora has filed a standalone motion with this
court, pursuant to rule 23B of the Utah Rules of Appellate
Procedure, asking us to remand his case for the trial court to
make additional findings of fact relating to his ineffective
assistance of counsel claim. “Rule 23B allows this court to
remand a criminal case ‘to the trial court for entry of findings of
fact, necessary for the appellate court’s determination of a claim
of ineffective assistance of counsel.’” State v. Powell, 2020 UT App
63, ¶ 11, 463 P.3d 705 (quoting Utah R. App. P. 23B(a)). Such a
remand will only be granted if the movant has brought forth “a
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.” Utah R. App. P. 23B(a).
ANALYSIS
I. Admissibility of the Challenged Evidence
¶22 Samora’s first two challenges concern evidence that he
believes was improperly admitted. First, Samora asserts that the
trial court abused its discretion by admitting the comparison
photos into evidence at trial. Second, he asserts that the court
plainly erred by admitting, and that his counsel rendered
ineffective assistance by failing to object to the admission of,
20180983-CA 13 2021 UT App 29State v. Samora
three discrete audio clips of his jail phone calls with Wife. We
discuss each of these challenges, in turn.
A. Comparison Photos
¶23 Samora’s challenge to the trial court’s decision to admit
the comparison photos is rooted in rule 901 of the Utah Rules of
Evidence. Citing that rule, he asserts that the State did not lay
sufficient foundation to authenticate those photos. We find this
argument unpersuasive; indeed, we commend the trial court’s
thorough efforts to ensure the State laid the requisite foundation.
¶24 Rule 901 requires parties to authenticate proffered
evidence; the rule provides that one way in which parties may
do so is by offering witness “[t]estimony that an item is what it is
claimed to be.” Utah R. Evid. 901(a), (b)(1). For photographic
evidence, “the general rule in Utah is that when a competent
witness with personal knowledge of the facts represented by a
photograph or video testifies that the photograph accurately
reflects those facts, it is admissible.” State v. Bloomfield, 2003 UT
App 3, ¶ 24, 63 P.3d 110 (quotation simplified); accord State v.
Wager, 2016 UT App 97, ¶ 13, 372 P.3d 91; see also State v. Perea,
2013 UT 68, ¶ 47, 322 P.3d 624 (stating that “there must be some
showing that the evidence itself supports the proffered
conclusion”). 7
7. Samora asserts—citing State v. Perea, 2013 UT 68, 322 P.3d
624—that the photos qualify as “demonstrative evidence,” and
argues therefrom that they are subject to an altogether different
analysis for admissibility. In Perea, our supreme court did indeed
articulate different admissibility standards, under rule 901 of the
Utah Rules of Evidence, for demonstrative versus substantive
evidence. See id. ¶¶ 45–49. However, we agree with both parts of
the State’s assertion that (1) the comparison photos are actually
“substantive evidence”—indeed, the photos have independent
(continued…)
20180983-CA 14 2021 UT App 29State v. Samora
¶25 In this situation, the record reveals that, not only did “a
competent witness with personal knowledge of the facts”
represented by the comparison photos testify that the
photographs “accurately reflect[ed] those facts,” see
Bloomfield, 2003 UT App 3, ¶ 24 (quotation simplified), but
several witnesses testified in this regard. Most importantly,
the State elicited testimony from Detective, who testified
extensively—both at trial and during a pretrial hearing—about
how the comparison photos were generated. Detective’s
testimony indicated that the comparison photos depicted
images of the dark-colored hoodie recovered from Samora’s
apartment and the white shoes found on Samora’s person at
the time of the arrest. He further explained that the clothing
items were arranged in spots designed to replicate the
placement of the robber’s clothing on the night of the robbery,
and he detailed how he and the forensic examiner “placed
something underneath the shoe” to “recreate the step and
the walking motions” taken when the robber walked into the
store, and “used the grout lines” in the floor to arrange the
shoes where the robber would have been when he approached
the counter. Detective also testified that they tried to
(…continued)
probative value and were not produced merely to “illustrate a
witness’s testimony,” see id. ¶¶ 45–46—but (2) in any event,
“[t]he distinction between demonstrative and substantive
evidence does not affect the outcome here.” As noted in Perea,
“substantive evidence . . . must . . . meet a higher threshold
showing than that required for demonstrative evidence,” so if
the “foundational burden” for admitting substantive evidence is
met, then the evidence is admissible. See id. ¶¶ 47, 49.
Accordingly, we proceed by applying the standard for
admission of substantive evidence under rule 901: the proponent
must show “that the evidence itself supports the proffered
conclusion.” Id. ¶ 47.
20180983-CA 15 2021 UT App 29State v. Samora
recreate “the same conditions” as the original robbery by
taking the comparison photos “at night” to “match” the
lighting, and by “shut[ting] down the store” to ensure there
would not be any “foot traffic.” Detective also attested to
maintaining the “chain of custody” over the two clothing
items. Furthermore, Manager testified, and Clerk affirmed,
that the surveillance cameras had not been moved since the
robbery, and that they were in the same position when the
comparison photos were taken as they were on the night of
the robbery.
¶26 Given all of this testimony, the court determined that the
State had established sufficient foundation to admit the photos
for “the very limited purpose” of allowing the jury to “compare”
the reconstructed crime scene photos to the screenshots of the
robbery. The court warned the State, however, that it would not
be allowed to “present evidence on the ultimate issue as to
whether the items and information depicted in the
demonstrative photos are, in fact, [the] items and information
reflected in the store’s . . . surveillance footage” from the night of
the robbery. In the court’s view, it should be up to the jury to
determine whether the comparison was effective. And at trial,
the court enforced this restriction, determining after presentation
of the evidence that the State had “not crossed that line,” and
that Detective possessed “the proper foundation and knowledge
to testify to these issues.”
¶27 Under these circumstances, the State laid sufficient
foundation to support what the comparison photos were used
for: to allow the jury to compare what the recovered hoodie and
shoes would look like if captured on the same surveillance
system that captured the robbery in action. In our view, the trial
court’s actions in ensuring that proper foundation had been laid
for these photos were thorough and appropriate. We perceive no
abuse of discretion in the court’s handling of this matter.
20180983-CA 16 2021 UT App 29State v. Samora
B. Audio Clips of Jail Phone Calls
¶28 Samora next challenges the admission of the three short
audio clips from his jailhouse phone calls with Wife. This
challenge has three subparts: Samora first characterizes these
clips as “confessions,” and asserts that the clips are not
sufficiently “trustworthy” to be admitted as such; next, he claims
that the clips were unfairly prejudicial in violation of rule 403;
and finally, he contends that his calls to Wife were protected by
Utah’s spousal communications privilege.
¶29 Each of these challenges is unpreserved. Although
Samora objected to the State’s initial efforts to admit recordings
of the jail phone calls pursuant to rule 404(b), and objected to the
State’s efforts to admit other clips of those phone calls with Wife
pursuant to rule 801(d)(2), those other objections were sustained
in their entirety. But Samora did not object to the State’s efforts
to admit, pursuant to rule 801(d)(2), the three clips that were
ultimately played for the jury. Because these challenges are
unpreserved, Samora asks that we review them for plain error
and ineffective assistance of counsel. We first discuss Samora’s
contention that the trial court plainly erred, and then discuss his
contention that his trial counsel rendered ineffective assistance.
1. Plain Error
¶30 To establish that the trial court plainly erred, Samora
must show that “(i) an error exists; (ii) the error should have
been obvious to the trial court; and (iii) the error is harmful, i.e.,
absent the error, there [was] a reasonable likelihood of a more
favorable outcome” at trial. State v. Bond, 2015 UT 88, ¶ 15, 361
P.3d 104 (quotation simplified). “If any one of these
requirements is not met, plain error is not established.” State v.
Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443 (quotation simplified).
“For an error to be obvious to the trial court, the party arguing
for the exception to preservation must show that the law
20180983-CA 17 2021 UT App 29State v. Samora
governing the error was clear, or plainly settled, at the time the
alleged error was made.” Id. ¶ 21 (quotation simplified).
a. Trustworthiness
¶31 Samora first raises a “trustworthiness” argument with
regard to the audio clips. He characterizes several statements in
those clips as being “in the nature of” confessions, and asserts
that, as confessions, the statements in the audio clips cannot be
admitted unless they meet a “trustworthiness standard.” See
State v. Mauchley, 2003 UT 10, ¶¶ 19–20, 67 P.3d 477 (adopting a
“trustworthiness standard,” under which “it is the responsibility
of the trial judge to determine as a matter of law whether a
defendant’s confession is sufficiently trustworthy or reliable to
be admitted into evidence”). Samora asserts that the trial court
committed plain error by allowing the audio clips to come into
evidence without first determining that they were sufficiently
trustworthy. We see two problems with this argument.
¶32 First, we are not persuaded that the statements Samora
made in the audio clips qualify as the sort of “confessions” to
which the “trustworthiness standard” applies. At the outset, we
note that there is an important distinction between a confession
and a simple admission: “An admission is an acknowledgment
by the accused of certain facts that tend, together with other
facts, to establish the accused’s guilt, whereas a confession is an
acknowledgment of guilt itself. . . . Furthermore, although every
confession is an admission, not every admission is a confession.”
29 Am. Jur. 2d Evidence § 700 (2021) (quotation simplified).
Indeed, our supreme court affirmed a trial court’s ruling and
adopted its reasoning in distinguishing between a confession
and an admission:
A confession is a voluntary statement on the part of
the defendant, . . . which admits guilt, or in which
he discusses the commission of the act, as well as a
confession of the doing of the act, [and] admits
20180983-CA 18 2021 UT App 29State v. Samora
guilt of the surrounding circumstances. An
admission is merely an admission on the part of
the defendant as to some particular act, or some
particular thing which in itself does not constitute a
confession of guilt, but from which might be
drawn an inference that the defendant might have
been at the place, at least.
State v. Hymas, 131 P.2d 791, 792 (Utah 1942) (quotation
simplified); see also id. at 792–93 (conducting its own analysis of
the statement at issue and determining that, “[a]t the most, the
statement could be nothing more than an admission,” and
concluding that it had therefore not been necessary to apply the
standard for admitting confessions); accord State v. Barbero, 442
P.3d 224, 225 (Or. Ct. App. 2019) (“Not all statements by the
defendant are confessions. . . . A confession is an
acknowledgement of guilt made by a person after an offense has
been committed. An admission is a statement made for some
purpose other than to acknowledge guilt.” (quotation
simplified)). For instance, in Mauchley, the defendant traveled on
his own to the police station and “voluntarily confessed” to
committing the crime in question. See 2003 UT 10, ¶ 6. Certainly,
a statement given to police for the express purpose of voluntarily
accepting responsibility for a crime qualifies as a confession. See
29 Am. Jur. 2d Evidence § 699 (2021) (“A confession is a voluntary
statement by the accused that the accused engaged in conduct
that constitutes a crime. It is a direct acknowledgement of guilt
on the part of the accused, implicitly admitting all the essential
elements necessary to establish the crime of which the accused is
charged.” (quotation simplified)).
¶33 But the statements made by Samora to Wife during the
jailhouse phone calls are of a different nature. In making those
statements, Samora did not appear to acknowledge guilt for the
robbery; rather, he was just discussing with Wife the particulars
of his whereabouts on the evening in question. See id. § 700. His
20180983-CA 19 2021 UT App 29State v. Samora
references in those calls to perhaps being the person Clerk was
following may be probative statements because they are
“admission[s] of incriminating facts” from which a factfinder
could infer guilt, but they do “not amount[] to a confession”
because there is no indication that those statements were made
for the purpose of acknowledging criminal liability. See E.H.
Schopler, Annotation, Corroboration of Extrajudicial Confession or
Admission, 45 A.L.R.2d 1316, § 5[a] (originally published in 1956).
Admissions, just like other statements that do not qualify as
confessions, may be admitted into evidence pursuant to rule
801(d)(2) of the Utah Rules of Evidence as statements of a party-
opponent, even without a specialized showing of
trustworthiness, provided that the requirements of that rule are
otherwise met. See generally 29 Am. Jur. 2d Evidence § 757 (2021)
(noting that, “in both civil and criminal cases, . . . an admission
or statement of a party is not considered hearsay and may be
used against the party” and that “an admission of a party
opponent need only traverse the low hurdles of relevancy and
materiality to survive an objection to its admission into
evidence” (quotation simplified)). That was the basis upon
which the trial court admitted the audio clips, and Samora
makes no meaningful effort to argue that the court misapplied
rule 801(d)(2). 8
8. Samora does appear to cursorily argue that portions of the
first clip are inconsistent with rule 801(d)(2) of the Utah Rules of
Evidence, but to the extent he attempts to make such an
argument, it is inadequately briefed. See State v. Thomas, 961 P.2d
299, 304 (Utah 1998) (“It is well established that a reviewing
court will not address arguments that are not adequately
briefed.”); accord State v. Thornock, 2020 UT App 138, ¶ 36, 475
P.3d 475. Samora only mentions rule 801(d)(2) with regard to the
first audio clip, and even then he simply makes the bare
assertion that one of his statements in the clip “is not an adoptive
(continued…)
20180983-CA 20 2021 UT App 29State v. Samora
¶34 Second, even if we were to assume, for purposes of the
discussion, that Samora’s statements were confessions subject to
the trustworthiness standard, Samora has not carried his burden
of demonstrating that the trial court plainly erred in assuming
the statements to be sufficiently trustworthy. After all, Samora
made the statements voluntarily during casual conversation
with Wife, without any hint of coercion, all while knowing that
he was being recorded, and neither the statements themselves
nor the context in which they were made contains any
suggestion that his statements were not trustworthy. See
Mauchley, 2003 UT 10, ¶ 52 (stating that “evidence as to the
spontaneity of the statement” and “the absence of deception,
trick, threats, or promises to obtain the statement” has
“applicability in determining the trustworthiness of
confessions”). Indeed, the statements demonstrate a familiarity
on Samora’s part with the crime scene and some features of the
robbery itself, a factor that our supreme court has identified as a
hallmark of trustworthiness. See id. ¶ 54 (stating that “[o]ne of
the ways a confession may” be considered trustworthy is when
(…continued)
admission pursuant to Utah R. Evid. 801(d)(2),” instead
characterizing it as “a denial.” But Samora makes no further
attempt to explain why this matters; indeed, simply because he
was the one who made the statement and the State offered it into
evidence against him at trial, the statement is eligible for
admission under rule 801(d)(2). See Utah R. Evid. 801(d)(2)(A)
(providing that out-of-court statements made by a litigant—
which might otherwise be considered hearsay—are admissible if
offered against that party at trial). And for us to address an
argument, that “argument must explain, with reasoned analysis
supported by citations to legal authority and the record, why the
party should prevail on appeal.” Utah R. App. P. 24(a)(8).
Samora has not done so here, and accordingly we decline to
discuss the issue further.
20180983-CA 21 2021 UT App 29State v. Samora
it is “bolstered by independent evidence” showing that “the
individual has specific personal knowledge about the crime”).
And in this case, there is also independent corroboration of
Samora’s involvement in the robbery, including the screenshots,
the comparison photos, and Clerk’s testimony.
¶35 Accordingly, we find no error at all, let alone plain error,
in the trial court’s admission of the audio clips without first
making an express finding of trustworthiness.
b. Rule 403
¶36 Samora next asserts that the trial court plainly erred by
not ruling sua sponte that the remaining three phone clips
violated rule 403 of the Utah Rules of Evidence. Under that rule,
evidence may be excluded “if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Utah R. Evid. 403.
“The critical question in a rule 403 analysis for unfair prejudice is
whether certain testimony is so prejudicial that the jury will be
unable to fairly weigh the evidence.” State v. Jones, 2015 UT 19,
¶ 30, 345 P.3d 1195 (quotation simplified). Importantly,
“evidence is not [made] unfairly prejudicial because it tends to
prove guilt, but [rather] because it tends to encourage the jury to
find guilt from improper reasoning.” Id. (quotation simplified);
see also State v. Wilson, 2020 UT App 30, ¶ 30, 461 P.3d 1124(noting that “all probative evidence is prejudicial to the party
against whom it is introduced,” but that “such prejudice is not
necessarily unfair” (quotation simplified)). Improper reasoning,
in this context, “commonly but not necessarily” involves a non-
evidentiary “emotional” component, “such as bias, sympathy,
hatred, contempt, retribution or horror.” State v. Rodriguez, 2012
UT App 81, ¶ 4, 274 P.3d 1012 (quotation simplified); accord State
v. Bermejo, 2020 UT App 142, ¶ 27, 476 P.3d 148, petition for cert.
filed, Dec. 22, 2020 (No. 20200933).
20180983-CA 22 2021 UT App 29State v. Samora
¶37 In this case, however, the audio clips are not unfairly
prejudicial, and certainly not obviously so. The clips have high
probative value because they contain statements by Samora that
indicate that he might have been the man Clerk followed. The
court did determine, in connection with the State’s initial effort
to admit the jailhouse phone calls pursuant to rule 404(b), that all
of those calls together were “inadmissible under rule 403.” But
that pronouncement must be viewed in the context of the rule
404(b) motion. And at the hearing during which the court
considered the State’s second motion to admit the phone calls as
conditionally relevant statements of a party-opponent pursuant
to rules 104(b) and 801(d)(2), Samora objected to some portions
of those clips, which objection the court sustained in part
“because [the statements] may be misleading or confusing to the
jury.” But no such objection was lodged in connection with the
State’s second motion with regard to the three clips that were
ultimately played for the jury. Although the three clips are
certainly prejudicial to Samora’s assertion that he was not the
robber, we perceive no reason why they would be unfairly
prejudicial, much less obviously so; the inference to which they
lead—that Samora might be the robber—is one based on
evidence, and not on some improper emotional basis. 9 The trial
court did not commit any error, let alone an obvious one, by not
sua sponte excluding the three audio clips pursuant to rule 403.
9. In addition to asserting unfair prejudice, Samora objects to at
least one of the clips as being “confusing” and “misleading” due
to potential ambiguity about whether Samora was actually
admitting anything. Whether his statements should be construed
as an admission of his involvement is a question for the
factfinder. We perceive nothing unusually confusing or
misleading about that interpretive question; indeed, in our view,
a jury could have reasonably concluded, in context, that Samora
was acknowledging involvement in the robbery.
20180983-CA 23 2021 UT App 29State v. Samora
c. Spousal Communications Privilege
¶38 Samora next argues that the trial court plainly erred by
not sua sponte excluding certain portions of the clips because
they were protected by Samora’s spousal communications
privilege. In Utah, the spousal communications privilege allows
a defendant “to prevent his or her spouse . . . from testifying as
to any confidential communication made by the individual to
the spouse during their marriage; and to prevent another
person from disclosing any such confidential communication.”
Utah R. Evid. 502(c); accord Utah Const. art. I, § 12; Utah
Code Ann. § 78B-1-137(1)(a) (LexisNexis 2017). “Confidential
communication” is defined as “a communication[] made
privately by any person to his or her spouse; and not intended
for disclosure to any other person.” Utah R. Evid. 502(a)(1).
¶39 Thus, whether the spousal communications privilege
protects Samora’s conversations with Wife hinges on whether
the conversations can fairly be considered to have been “made
privately . . . and not intended for disclosure to any other
person.” See id. (emphasis added). Although Utah courts have
not yet squarely considered whether this privilege applies to
recorded phone calls between a prisoner and his or her spouse, 10
10. Samora asserts that Utah courts have considered this issue, at
least implicitly, and directs our attention to Zaragoza v. State,
2017 UT App 215, 407 P.3d 1122. He suggests that Zaragoza
stands for the proposition that “most courts apply the
‘forfeiture-by-wrongdoing’ doctrine to allow otherwise
privileged calls to be introduced notwithstanding a recognition
of the marital privilege.” But Samora overstates the applicability
of that case to the situation at hand. In Zaragoza, our only
discussion of the spousal communications privilege was to
describe a lower court ruling—one that was not at issue on
appeal—in which the court admitted two out-of-court
(continued…)
20180983-CA 24 2021 UT App 29State v. Samora
most other courts to consider the question have concluded that
the privilege does not apply to jailhouse phone calls, particularly
where, as here, inmates are made aware before placing calls that
their conversations are being recorded. See, e.g., United States v.
Madoch, 149 F.3d 596, 602 (7th Cir. 1998) (holding that the trial
court did not err in admitting tape-recorded conversations
between defendant and her husband while her husband was in
jail, “because the marital communications privilege protects only
communications made in confidence” and it is “well-known”
that “communications made from jail” are monitored and “likely
to be overheard by others” (quotation simplified)); United States
v. Tartaglione, 228 F. Supp. 3d 402, 407–08 (E.D. Pa. 2017) (“[T]he
law is clear that, where one spouse is imprisoned,
communications between the married couple on prison
telephones are not made in confidence.”); Bloom v. Toliver, No.
12-CV-169-JED-FHM, 2015 WL 5344360, at *9 (N.D. Okla. Sept.
14, 2015) (holding that the marital communications privilege did
not apply to a phone call between a detention officer and his
wife because, among other reasons, “all calls at the [j]ail are
routinely recorded, and [the officer] was on duty during the
lengthy call to his wife, both of which counter any argument of
an expectation of privacy during his communication”); Dixson v.
State, 865 N.E.2d 704, 713–14 (Ind. Ct. App. 2007) (holding that,
where there is evidence that “inmates are notified that calls are
recorded and/or monitored by means of an automated message
(…continued)
statements by the defendant’s wife to police on the basis that the
defendant “had intentionally made [his] [w]ife unavailable to
testify through his own wrongful actions, and therefore the
forfeiture-by-wrongdoing doctrine applied.” See id. ¶ 7. Other
than that cursory description of the basis of a lower court’s
evidentiary ruling, we made no mention in Zaragoza of the
spousal communications privilege, and we offered no opinion
on its applicability to jailhouse phone calls.
20180983-CA 25 2021 UT App 29State v. Samora
played at the beginning of each call,” it is within the trial court’s
discretion to conclude that an inmate’s “conversation with his
wife was made in the presence of a third party, i.e., the
[government] and its agents”). But see State v. Modica, 186 P.3d
1062, 1064 (Wash. 2008) (en banc) (opining that “[s]igns or
automated recordings that calls may be recorded or monitored
do not, in themselves, defeat a reasonable expectation of
privacy,” and suggesting that if a prisoner’s phone calls had
been “to his lawyer or otherwise privileged,” the calls might
have been considered private to bar their admissibility in a
criminal case). And this makes sense because, after all, “[t]he
presence of a device monitoring and recording all phone calls
made in prison is the functional equivalent of a third party
listening to the conversations,” see Tartaglione, 228 F. Supp. 3d at
408, and the privilege applies only to confidential
communications between spouses, see Utah R. Evid. 502(c). 11
¶40 But in any event, this question “is an interesting and
multifaceted one that has not yet been answered by Utah’s
appellate courts,” meaning that “there is no settled appellate law
governing the question.” See State v. Oliver, 2018 UT App 101,
¶ 43, 427 P.3d 495 (emphasis added) (quotation simplified). To
the extent there is any consensus in the case law on this issue, it
11. Samora asserts that, “irrespective of his statement that the
phones were recorded, the marital privilege would apply in any
event because [Wife]’s statements were made with an
understanding that they were confidential.” But as noted, most
courts have held that jailhouse phone calls cannot reasonably be
considered confidential, even by the spouse who is not
incarcerated, because “communications made from jail are likely
to be overheard by others, and, thus, it is unreasonable [for the
non-imprisoned spouse] to intend such a communication to be
confidential.” See United States v. Madoch, 149 F.3d 596, 602 (7th
Cir. 1998) (quotation simplified).
20180983-CA 26 2021 UT App 29State v. Samora
appears that any such consensus runs in the State’s direction.
Under these circumstances, Samora cannot “show that the law
governing the error was clear or plainly settled” in his favor
such that it would have been “obvious to the trial court” that the
spousal communications privilege barred admission of the audio
clips. See id. (quotation simplified); see also State v. Johnson, 2017
UT 76, ¶ 21, 416 P.3d 443. Accordingly, the court did not commit
plain error by declining to sua sponte exclude the audio clips
pursuant to the spousal communications privilege.
¶41 Thus, for all of these reasons, Samora has not carried his
burden of showing that the trial court plainly erred by not sua
sponte excluding the three audio clips from evidence at trial,
either under a trustworthiness standard, rule 403, or the spousal
communications privilege.
2. Ineffective Assistance of Counsel
¶42 Samora also argues that his trial counsel rendered
constitutionally ineffective assistance by failing to object to
admission of the phone calls under the same three
evidentiary rules we have just discussed. See supra ¶¶ 31–41. To
establish that his counsel was constitutionally ineffective,
Samora must show that (1) his “counsel’s performance was
deficient,” and (2) this “deficient performance prejudiced the
defense” by giving rise to “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington, 466 U.S.
668, 687, 694 (1984). To determine whether counsel’s
performance was deficient under the first part of the test, we
apply “the deficiency standard announced in Strickland” and ask
whether counsel’s actions “fell below an objective standard of
reasonableness.” See State v. Scott, 2020 UT 13, ¶ 31, 462 P.3d 350(quotation simplified). In the context of this case, it is
important to note that “[f]ailure to raise futile objections does not
constitute ineffective assistance of counsel.” State v. Kelley, 2000
20180983-CA 27 2021 UT App 29State v. Samora
UT 41, ¶ 26, 1 P.3d 546; accord State v. Newton, 2020 UT 24, ¶ 24,
466 P.3d 135.
¶43 Samora’s trial counsel did not perform deficiently by
failing to object to admission of the three audio clips played
for the jury at trial. For the reasons already discussed, see
supra ¶¶ 31–37, neither rule 403 nor any “trustworthiness
standard” requires exclusion of the audio clips, and any attempt
counsel might have made to object to their admission
pursuant to those rules would have been futile. See Kelley, 2000
UT 41, ¶ 26.
¶44 Objecting to admission of the audio clips pursuant to the
spousal communications privilege may have been unsuccessful,
given the absence of Utah case law on the question and given the
fact that the weight of case law from other jurisdictions seems to
favor the State’s position. But even if an objection on this basis
carried some chance of success, we do not think it was
objectively unreasonable, under the circumstances, for counsel to
decide not to make it. Although we recognize, as our supreme
court did in State v. Silva, 2019 UT 36, 456 P.3d 718, that
situations exist in which an attorney performs deficiently by
failing to “raise an argument not supported by existing legal
precedent,” id. ¶¶ 19–20, it is not the case that attorneys must
raise every conceivable objection in order to render
constitutionally effective assistance. The United States Supreme
Court has “never required defense counsel to pursue every claim
or defense, regardless of its merit, viability, or realistic chance for
success.” See Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
Indeed, in deciding whether to lodge objections, attorneys are
entitled to “pick [their] battles,” and do not have “a Sixth
Amendment obligation” to object to everything. See State v. Ray,
2020 UT 12, ¶ 32, 469 P.3d 871; see also State v. Hart, 2020 UT App
25, ¶ 29, 460 P.3d 604 (“[J]ust because counsel can make an
objection does not mean counsel must make an objection to avoid
rendering ineffective assistance. Legal objections are an
20180983-CA 28 2021 UT App 29State v. Samora
inherently strategic business.”). “We must view a decision to not
object in context and determine whether . . . failure to do so was
objectively unreasonable—i.e., a battle that competent counsel
would have fought.” See Ray, 2020 UT 12, ¶ 32.
¶45 In this situation, with out-of-state case law weighing
largely against Samora’s position, and with other pressing
matters also of concern in the fast-paced context of the trial, we
do not view it as objectively unreasonable for counsel to have
opted not to lodge an objection to the three audio clips
pursuant to the spousal communications privilege. In similar
situations, our supreme court has determined that counsel did
not perform deficiently by failing to object. See, e.g., Myers v.
State, 2004 UT 31, ¶¶ 22–23, 94 P.3d 211 (holding that, where
“there were no cases on point in Utah, and other jurisdictions
were split on the issue,” it was “likely that counsel made a
tactical decision not to pursue a . . . challenge” on that basis,
which decision “could not be considered ineffective assistance”
(quotation simplified)). Samora’s trial counsel successfully
resisted prosecutorial attempts to admit all of Samora’s jailhouse
phone calls pursuant to rule 404(b), and then successfully fought
off a second prosecutorial attempt to admit several additional
more targeted clips pursuant to rule 801(d)(2). By all
appearances, counsel thoroughly examined the issues
surrounding admissibility of the jailhouse phone calls, and
concluded that she had no “legal grounds to object” to the three
clips that were ultimately admitted. Based on our review of the
record, and our understanding of applicable case law, counsel
did not act unreasonably in reaching this conclusion, and did not
perform deficiently by failing to lodge an objection to the final
three clips.
¶46 In the end, we reject all of Samora’s arguments related to
the admission of the comparison photos and the three audio
clips of his jailhouse phone calls.
20180983-CA 29 2021 UT App 29State v. Samora
II. Sufficiency of the Evidence
¶47 Samora next contends that the trial court erred when it
denied his motion for directed verdict because, according to him,
the evidence presented to the jury was insufficient to prove that
he was the robber. When considering a motion for directed
verdict, trial courts are “not free to weigh the evidence and thus
invade the province of the jury, whose prerogative it is to judge
the facts.” State v. Montoya, 2004 UT 5, ¶ 32, 84 P.3d 1183(quotation simplified). “Rather, the court’s role is to determine
whether the state has produced believable evidence on each
element of the crime from which a jury, acting reasonably, could
convict the defendant.” Id. (quotation simplified). “A trial court
is justified in granting a directed verdict only if, examining all
evidence in a light most favorable to the non-moving party,
there is no competent evidence that would support a verdict in
the non-moving party’s favor.” State v. Garcia, 2017 UT 53, ¶ 62,
424 P.3d 171 (quotation simplified). And if a trial court denies a
motion for directed verdict, we may reverse only if we are
unable to conclude that, “viewed in the light most favorable to
the State, some evidence exists from which a reasonable jury
could find that the elements of the crime had been proven
beyond a reasonable doubt.” State v. Gonzalez, 2015 UT 10, ¶ 27,
345 P.3d 1168 (emphasis added) (quotation simplified).
¶48 In reviewing a denial of a directed verdict motion based
on sufficiency of the evidence, we begin by listing the evidence
that is pertinent to “the central issue that was before the jury.”
See Montoya, 2004 UT 5, ¶ 31. Both at trial, and in Samora’s
motion for directed verdict, the primary issue was the identity of
the robber. The State’s “identity” evidence included the
following: (1) the six screenshots of the surveillance system
footage from the night of the robbery, depicting a masked man
with a horseshoe-shaped receding hairline, who was wielding a
knife and wearing a dark-colored hoodie, dark shorts, and white
shoes with black laces tied in a crisscross pattern; (2) a
20180983-CA 30 2021 UT App 29State v. Samora
photograph of Samora when he was arrested, which showed
that he had a horseshoe-shaped receding hairline, and that he
was wearing black shorts and white shoes with small red stripes
on the sides and black shoelaces laced in a distinctive crisscross
pattern; (3) a photograph of the dark-colored hoodie recovered
from Samora’s apartment; (4) a photograph of the kitchen knife
recovered from his apartment and testimony from Detective
about where it was found in the apartment; (5) additional
testimony from Detective about his search of the apartment and
how he came to find the knife and hoodie; (6) the comparison
photos showing what the recovered dark-colored hoodie and the
shoes looked like when photographed by the store’s surveillance
system; (7) testimony from Clerk, who described what the
robber was wearing, and how Clerk followed the robber and
witnessed him going into the front door of an apartment
building that turned out to be Samora’s residence; (8) Clerk’s
statement that he was “100 percent positive” that the man he
followed to the apartment building was “the same person” who
tried to rob the store; and finally, (9) Samora’s own statements in
the jailhouse phone calls, in which he stated that he did not “take
anything” from the store, that Clerk “followed me home,” and
that Clerk “had to be real close to me to see me turn into the
apartment.” Samora attempts to downplay all of this evidence,
claiming that it “was all speculative secondary evidence.” That
assertion is demonstrably incorrect—indeed, Clerk’s firsthand
observations in particular are neither secondary nor speculative.
But even if the State’s evidence could be considered “largely
circumstantial,” our supreme court has stated that, “if there is
any evidence, however slight or circumstantial, which tends to
show guilt of the crime charged or any of its degrees, it is the
trial court’s duty to submit the case to the jury.” Id. ¶ 33(quotation simplified).
¶49 This is not a case in which there was “no competent
evidence that would support a verdict” of guilt. See Garcia, 2017
UT 53, ¶ 62 (quotation simplified). To the contrary, the State
20180983-CA 31 2021 UT App 29State v. Samora
presented evidence that was “believable,” even if some of it was
circumstantial and required inferences on the part of the
factfinder; in such a scenario it was not for the trial court to
“invade the province of the jury, whose prerogative it is to judge
the facts.” See Montoya, 2004 UT 5, ¶ 32 (quotation simplified).
On the record before us, there was plenty of evidence from
which a reasonable jury could have made a finding, beyond a
reasonable doubt, that Samora was the robber. Accordingly,
Samora cannot meet his burden of demonstrating that the court
erred in denying his motion for directed verdict.
III. Rule 23B Motion
¶50 Finally, we discuss Samora’s motion, filed with this court
pursuant to rule 23B of the Utah Rules of Appellate Procedure,
in which he asks us to remand the case for further factfinding
relating to his ineffective assistance of counsel claim. Under rule
23B, “[a] party to an appeal in a criminal case may move the
court to remand the case to the trial court for entry of findings of
fact, necessary for the appellate court’s determination of a claim
of ineffective assistance of counsel.” Utah R. App. P. 23B(a). We
apply a “four-part test to evaluate rule 23B motions”: (1) the
motion must allege facts that are not already in the record; (2)
the alleged facts must not be “speculative,” meaning that the
movant must attach to the motion evidence supporting the
alleged facts, often in the form of affidavits “submit[ting] specific
facts and details that relate to specific relevant occurrences”; (3)
the alleged facts must be able to support a determination that
counsel acted deficiently; and (4) the alleged facts must be able
to support a determination that the defendant was prejudiced by
counsel’s deficient performance. See State v. Griffin, 2015 UT 18,
¶¶ 18–21, 441 P.3d 1166; accord Utah R. App. P. 23B.
¶51 In his rule 23B motion, Samora asserts that trial counsel
unreasonably neglected to bring two facts to the court’s attention
during trial: (a) that he has several tattoos on his hands, whereas
20180983-CA 32 2021 UT App 29State v. Samora
no tattoos can be seen on the robber’s hands in the screenshots;
and (b) that in the screenshots the robber appears to be wearing
a wedding ring, but “no ring [was] taken from [Samora] at the
time he was booked” following his arrest. Samora’s motion was
accompanied by affidavits and photographs demonstrating that
he had tattoos on his hands at the time of trial, and that he was
not wearing a wedding ring when he was booked into jail on the
night of the robbery. These facts are not found anywhere else in
the record, and are not “speculative”; therefore, Samora has
satisfied the first two elements of the four-part test. See Griffin,
2015 UT 18, ¶¶ 18–19.
¶52 But we agree with the State that, on the rule 23B record
presented here, Samora cannot satisfy the other two elements of
the test. With regard to the wedding ring issue, Samora’s
evidence demonstrates neither deficient performance nor
prejudice. As the State points out, a ring is easily and quickly
removable, and Samora had at least several minutes in his
apartment before officers arrived. Hence, the fact that he was not
wearing a ring when he was booked into jail has minimal
probative value, given a ring’s easily removable nature. Thus,
we cannot say that counsel acted unreasonably by not bringing
this fact to the court’s attention, and we do not perceive a
reasonable probability of a different outcome even if she had. See
id. ¶¶ 20–21.
¶53 We reach a similar conclusion with regard to the tattoos.
According to the affidavit submitted with the rule 23B motion,
Samora had tattoos at the time of trial. But neither that affidavit,
nor any other material submitted with the rule 23B motion,
contains any evidence that Samora had any tattoos on his hands
at the time of the robbery. As the State points out, the fact that
Samora had tattoos on his hands is a fact that attains appreciable
probative value only if he had them on the night of the robbery.
Samora’s trial took place some fourteen months after the
robbery, and the proffer Samora submitted with his motion
20180983-CA 33 2021 UT App 29State v. Samora
contains no information about whether he had tattoos on his
hands at the time of the robbery, and does not rule out the
possibility that he acquired them during the fourteen-month
period between the robbery and the trial. The fact that Samora
had tattoos at the time of trial, but not necessarily at the time of
the robbery, is not a fact of great assistance to Samora, and an
attorney would be well within the bounds of reasonability to
decline to raise that issue during trial. See id.
¶54 Samora attempts to cure the deficiencies in his rule 23B
proffer by submitting an additional affidavit with the reply brief
he filed in support of his rule 23B motion. But that action comes
too late, and does not give the State an opportunity to respond.
Rule 23, which “governs the form of motions” submitted to
Utah’s appellate courts, see id. ¶ 13, dictates that “[t]he moving
party may file a reply only to answer new matter raised in the
response,” Utah R. App. P. 23(c). And Rule 23B itself requires
that “[t]he motion must include or be accompanied by affidavits
alleging facts not fully appearing in the record.” Id. R. 23B(b)
(emphasis added). In addition, our supreme court has long held
that new issues, arguments, or evidence raised for the first time
in a reply brief will not be considered. See Brown v. Glover, 2000
UT 89, ¶ 23, 16 P.3d 540 (stating that “issues raised by an
appellant in the reply brief that were not presented in the
opening brief are considered waived and will not be considered
by the appellate court” in order “to prevent the resulting
unfairness to the respondent if an argument or issue was first
raised in the reply brief and the respondent had no opportunity
to respond”). And we have previously applied this principle in
the context of rule 23B motions. See, e.g., State v. Asta, 2018 UT
App 220, ¶ 16 n.1, 437 P.3d 664 (refusing to allow a defendant to
use rule 23B to raise an ineffective assistance claim, by separate
motion, that was not raised in the opening brief); State v. Bryant,
2012 UT App 264, ¶ 24 n.5, 290 P.3d 33 (refusing to consider a
request, raised for the first time in a reply brief on appeal, that
we remand a case pursuant to rule 23B). Accordingly, we hold
20180983-CA 34 2021 UT App 29State v. Samora
that Samora may not present an entirely new affidavit with a
reply brief in support of his rule 23B motion. Allowing Samora
to do so would run counter to the text of rules 23 and 23B, as
well as our long-standing rules regarding the content and
purpose of reply briefs.
¶55 Samora protests that the matter raised in the reply-brief
affidavit is not a “new” matter, and was placed in the record
simply to counter the arguments made by the State in its
response brief. We disagree. A respondent who, in its response
brief, identifies evidentiary gaps in the movant’s presentation
does not thereby open the door to the wholesale presentation of
entirely new evidence in connection with a reply brief. See State
v. Kruger, 2000 UT 60, ¶¶ 20–21, 6 P.3d 1116 (holding that the
State “point[ing] out in a footnote that [the defendant] had not
raised [an] issue in the trial court or in his opening brief on
appeal . . . did not constitute a ‘new matter’ entitling [the
defendant] to brief the issue in his reply brief”). Under the
circumstances presented here, Samora’s new affidavit submitted
with his reply brief came too late, and will not be considered.
¶56 Without that affidavit, Samora cannot satisfy his rule 23B
burden. Trial counsel did not act unreasonably by failing to
bring to the court’s attention the fact that Samora had tattoos on
his hands at the time of trial, and we do not perceive a reasonable
probability of a different trial outcome even if she had.
¶57 For all of these reasons, we deny Samora’s rule 23B
motion.
CONCLUSION
¶58 The trial court did not err in admitting the comparison
photos into evidence. We perceive neither plain error nor
ineffective assistance of counsel regarding the admission of the
three audio clips from Samora’s jailhouse phone calls with Wife.
20180983-CA 35 2021 UT App 29State v. Samora
The court did not err in denying Samora’s motion for directed
verdict regarding identity. And we find no merit in his rule 23B
motion. Accordingly, we affirm Samora’s conviction.
20180983-CA 36 2021 UT App 29