State v. Graves , 442 P.3d 1228 ( 2019 )

2019 UT App 72THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
REYFUS MELLOW GRAVES,
Appellant.
Opinion
No. 20171023‐CA
Filed May 2, 2019
Seventh District Court, Castle Dale Department
The Honorable Douglas B. Thomas
No. 161700030
Mark H. Tanner, Attorney for Appellant
Sean D. Reyes, Jeanne B. Inouye, and Karen A.
Klucznik, Attorneys for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.
HARRIS, Judge:
¶1 In the culmination of a months‐long feud, Reyfus Mellow
Graves shot at two other men as they arrived at his friend’s
apartment complex. Witnesses heard Graves—who hails from
Puerto Rico—make the following exclamation as he fired his
weapon: “This is how we do it in Puerto Rico!” The State
charged Graves with (among other crimes) attempted murder.
At the trial, the prosecutor asked several witnesses about
Graves’s exclamation and also made mention of it during closing
argument. At the conclusion of the trial, the jury found Graves
guilty. Although Graves did not object on racial or constitutional
grounds to any of the State’s questions and comments about
Puerto Rico, and indeed brought up the subject himself on a
number of occasions during trial, Graves now complains that the
State v. Graves
repeated references to Puerto Rico in a trial set in Emery County,
Utah, imbued the proceeding with improper implications of
racism and prevented him from receiving a fair trial. After
reviewing the record in this case, including the entire trial
transcript, we are unpersuaded by Graves’s arguments, and
therefore affirm his convictions.
BACKGROUND
¶2 On the afternoon of April 14, 2016, trouble was brewing in
Ferron, Utah, as a string of profane text messages flew back and
forth between and among four adult men: Graves, JH, ES and
SO. The dispute appears to have originated from discussion of a
woman (Girlfriend) who was at the time dating and living with
Graves, but who had previously dated both JH and ES, and had
also once lived in the same apartment as SO. As the texts were
going back and forth, Graves, who had moved to Ferron just
three months prior, was at ES’s residence having a beer after
work, and SO and JH were together at a different location.
Graves and SO had never gotten along, though the reason for the
bad blood between them is unclear from the record.
¶3 As the text exchange escalated, someone using ES’s phone
wrote “You want war[,] let’s do war,” to which JH replied, “Ok
me and [SO] is down . . . . Where at [a]nd when[?]” A few
minutes later, SO messaged ES that he was “on [his way] to
[ES’s] place.” SO then apparently called ES’s phone, which
Graves answered. Profanity‐laced threats ensued from both men.
At this point, JH and SO borrowed a car from a neighbor and
drove to ES’s place, bringing JH’s minor brother (Brother) along
“for a witness.”
¶4 In front of ES’s apartment, Graves and ES were sitting in
ES’s Ford Bronco smoking cigarettes and drinking beer, since ES
did not like people to smoke in his apartment. When JH and SO
pulled up to the apartment complex, Graves got out of the
20171023‐CA 2 2019 UT App 72State v. Graves
Bronco and fired three shots from a .22 caliber revolver (that
belonged to ES) at least roughly in the direction of JH and SO as
they exited the vehicle. The bullets did not hit anyone. Several
witnesses would later testify that, as he was firing, Graves
rotated the gun sideways and yelled something to the effect of
“This is how we do it in Puerto Rico!” Graves denied making
any such statement.
¶5 When the shooting started, JH moved in front of Brother,
who had stayed in the car and ducked below the window. SO
took cover behind the car, but began taunting Graves with
insults and racial slurs. Graves continued to point the gun at SO
until ES approached Graves and took the gun from him. ES then
took the gun into his apartment and hid it under a pillow on his
couch. Once Graves was disarmed, SO ran up to him and started
to pummel him with his fists, continuing to punch him even
after he felt Graves go limp. At some point, JH joined the fray
and held Graves against a wall as SO continued to beat him.
¶6 The scuffle was eventually interrupted by an off‐duty
highway patrol trooper (Trooper), who happened to live down
the street and responded after hearing the sound of gunfire in
his neighborhood and observing a man pointing what looked
like a gun. After calling the matter in to dispatch, Trooper drove
his unmarked police vehicle to the apartment complex, drew his
service weapon, and ordered all of the men to get on the ground.
The men complied, and either JH or SO told Trooper that Graves
had been shooting at them. Based on this information, Trooper
used the single pair of cuffs in his possession to handcuff
Graves. Trooper searched Graves, but found no gun and
therefore ordered everyone on the scene to stay in place until
backup arrived. At some point, ES explained that the gun was in
his apartment. After additional law enforcement officers arrived
at the scene, they confirmed that the gun was indeed where ES
claimed it was, and secured his apartment until they procured a
search warrant.
20171023‐CA 3 2019 UT App 72State v. Graves
¶7 Graves, ES, JH, and SO were all arrested, taken into
custody, and questioned independently that night. Brother also
provided a statement to officers before leaving the scene. A
detective (Detective) from the Emery County Sheriff’s Office
collected evidence from the scene, taking pictures of where it
appeared that bullets had struck a nearby residence and the car
that JH and SO had been driving. Detective examined the
revolver recovered from ES’s apartment and found that it
contained three spent rounds and six unspent rounds. Detective
also interviewed three additional witnesses, including one of
ES’s neighbors (Neighbor).
¶8 The State charged Graves with two counts of attempted
murder and two counts of felony discharge of a firearm, but
after pretrial proceedings one of the attempted murder counts
was changed to a charge of reckless endangerment. Graves
eventually stood trial for one count of attempted murder, two
counts of felony discharge of a firearm, and one count of reckless
endangerment.
¶9 At trial the prosecution called Trooper, ES, JH, Brother,
SO, the officer (Officer) who transported ES to jail after the
incident, Detective, and Neighbor. The State’s case focused on
the text messages exchanged on the day of the shooting as well
as on Graves’s actions immediately before and during the
shooting. In his opening statement, the prosecutor described the
shooting as well as Graves’s alleged statement:
At that point, there hadn’t been any words
exchanged between them, but one thing that had
been said that [ES] will tell you is that when the
defendant got out of the Bronco, he said, “I’ll show
you how we do things in Puerto Rico.”
The defendant is from Puerto Rico. He had pulled
his gun out, he held it an angle—not straight up
but at an angle—and fired at least the first shot that
20171023‐CA 4 2019 UT App 72State v. Graves
way. We don’t know exactly where those shots
went, in what order. We know there were a total of
three shots that were fired out of that .22.
¶10 During trial, the prosecution asked ES, JH, and SO—but
not Brother, Neighbor, or Trooper—whether they had heard
Graves say anything about Puerto Rico.1 JH and SO both testified
that Graves shouted something to the effect of “this is how we
do it in Puerto Rico” or “that’s how they do [it] in Puerto Rico.”
However, ES testified that he never heard Graves say anything
about Puerto Rico that night. The prosecution pressed ES on this
point, and after ES testified, called Officer to the stand, who
testified that ES had told her, as she transported him to jail on
the night of the incident, that Graves said something to the effect
of “I’ll show you how we do it in Puerto Rico.” At this point,
defense counsel lodged a hearsay objection to the admission of
Officer’s statement about what ES had told her while being
transported to jail, but the trial court overruled the objection.
¶11 The State drew out other details of the shooting during its
case‐in‐chief. ES testified that Graves had obtained his gun
surreptitiously, after asking to see the gun while they were in the
apartment. Further, the State asked JH, Brother, and SO whether
Graves held the gun sideways or upright during the shooting.
1. The State did ask Neighbor if she had been able to “hear
anything that was being said” during the incident, but the State’s
questioning did not reference any specific statement. When
Neighbor answered that she had not been able to hear any
statements, the State moved on to another line of questioning.
Similarly, the State asked Brother questions about what he saw
and heard on the night in question, but asked no specific
question about the “Puerto Rico” statement; on cross‐
examination, however, defense counsel specifically asked
Brother whether he had heard Graves make a statement about
Puerto Rico as he fired, and Brother answered in the negative.
20171023‐CA 5 2019 UT App 72State v. Graves
These witnesses all testified that Graves held the gun sideways,
or (in Brother’s words) “like how gangs . . . do it.” JH and SO
testified that Graves pointed the gun directly at them as he shot
and continued to aim the gun at SO afterward. Trooper and
Neighbor both testified that they saw Graves pointing the gun at
SO, though neither saw the shooting.
¶12 ES, JH, and SO also testified about the ongoing dispute
between SO and Graves. ES and JH testified that the dispute was
driven by SO, and began after Girlfriend evicted SO from her
apartment and started a relationship with Graves. They further
testified that SO had made several public threats to Graves,
sometimes threatening to kill Graves and his family, though no
one appears to have taken these threats seriously. For his part,
SO testified that he never threatened Graves and that Graves had
started the quarrel between them.
¶13 The State also called Detective, who testified that it
appeared to him that a bullet had struck the vehicle driven by
JH, although the bullet had not penetrated the vehicle. Though
Detective was, by his own admission, “by no means an expert,”
he testified that it appeared to him that the mark was made by a
small caliber bullet, such as a .22. Detective also testified that he
observed what appeared to be a fresh bullet hole in a house
across the street from the apartment complex, again consistent
with a .22 caliber bullet.
¶14 During the defense’s case, Graves testified in his own
defense, and disputed several parts of the State’s version of
events. Graves testified that ES handed him the gun as JH and
SO arrived; that he fired into the air twice and into the ground
once and that he never intended to actually hit anyone; that he
fired the gun in self‐defense; that he never made a statement
about Puerto Rico on the night of the shooting; that he held the
gun “straight” and not sideways; and that he had never shot a
gun prior to that night. The defense also obtained the court’s
permission to have Graves’s mother testify telephonically from
20171023‐CA 6 2019 UT App 72State v. Graves
Puerto Rico. At the outset of her testimony, defense counsel
asked her where she was testifying from, and she answered that
she was in Puerto Rico and that she had lived there for many
years. She also testified that SO had once threatened her with a
pistol when she was visiting Graves in Utah.
¶15 During closing argument, the prosecutor argued that
Graves could not claim self‐defense because the whole
altercation was combat by agreement, and Graves had “brought
a gun to a fistfight.”2 The State also argued that Graves’s alleged
statement about Puerto Rico was probative of his intent to
actually shoot JH and SO, and told the jury that “[i]f you believe
that he said, ‘This is how we do it in Puerto Rico,’ he cannot
claim justification. He cannot claim . . . anything but a
consensual altercation there.” Further, the prosecutor told the
jurors that they should not take seriously any possible threats
made by SO to Graves because “[t]hat’s the way these people
talk,” and that the standard was “what would a reasonable
person do under the circumstance, not the culture that these
people live in.”3 In its closing, the defense countered by pointing
2. See Utah Code Ann. § 76‐2‐402(2)(a)(iii) (LexisNexis 2017) (“A
person is not justified in using force . . . if the person . . . was
engaged in a combat by agreement . . . .”).
3. It is unclear whether the prosecutor meant to use “these
people” in a racially charged way (both SO and Graves were
part of Emery County’s small non‐white population), or if he
meant it to refer to all four men involved in the altercation (the
prosecutor had also asked JH—who is white—if racial slurs and
threats were “just common talk” “in this culture that you’re in”).
Either way, Graves did not object to this language at trial, nor
did he raise it as an issue in his opening brief, and we therefore
decline to address it further. See Rodriguez v. Kroger Co., 2018 UT
25, ¶ 31 n.8, 422 P.3d 815 (“Issues not raised in an opening brief
are waived.”).
20171023‐CA 7 2019 UT App 72State v. Graves
to the inconsistencies in the witnesses’ testimony, the fact that no
bullets had been recovered to conclusively link the bullet holes
or marks to the gun Graves used, and the fact that Graves
insisted he fired in the air because he was scared. The jury found
Graves guilty on all four charges, and Graves now appeals.
ISSUES AND STANDARDS OF REVIEW
¶16 Graves presents two issues for our review. First, he
argues that his constitutional rights to due process and equal
protection were violated at trial due to racial prejudice.
“Constitutional issues . . . are questions of law that we review for
correctness.” State v. Martinez, 2013 UT 23, ¶ 6, 304 P.3d 54(quotation simplified).
¶17 Second, Graves argues that his conviction for attempted
murder was not supported by sufficient evidence. When we
consider an insufficiency of the evidence claim, “we review the
evidence and all inferences which may reasonably be drawn
from it in the light most favorable to the verdict of the jury.”
State v. Nielsen, 2014 UT 10, ¶ 46, 326 P.3d 645 (quotation
simplified). “We may reverse a verdict only when the evidence,
so viewed, is sufficiently inconclusive or inherently improbable
that reasonable minds must have entertained a reasonable doubt
that the defendant committed the crime of which he or she was
convicted.” Id. (quotation simplified).
¶18 Neither of these issues was preserved at the trial level,
and we therefore review them both for plain error.4 See State v.
4. Graves argues that both issues were preserved at trial. In
order for an issue to be preserved for appeal, “(1) the issue must
be raised in a timely fashion; (2) the issue must be specifically
raised; and (3) a party must introduce supporting evidence or
relevant legal authority.” State v. Moa, 2012 UT 28, ¶ 23, 282 P.3d
(continued…)
20171023‐CA 8 2019 UT App 72State v. Graves
Ringstad, 2018 UT App 66, ¶ 32, 424 P.3d 1052. The plain error
standard requires an appellant to show that “(1) an error exists;
(2) the error should have been obvious to the [trial] court; and
(3) absent the error, there is a reasonable likelihood of a more
favorable outcome.” State v. Robinson, 2018 UT App 227, ¶ 25
(quotation simplified).
ANALYSIS
¶19 The United States Constitution requires that all persons,
regardless of race, “shall stand equal before the laws of the
States.” Strauder v. West Virginia, 100 U.S. 303, 307 (1879),
abrogated on other grounds by Taylor v. Louisiana, 419 U.S. 522(1975). “Discrimination on the basis of race, odious in all aspects,
is especially pernicious in the administration of justice.” Rose v.
Mitchell, 443 U.S. 545, 555 (1979). “Appeals to racial passion can
distort the search for truth and drastically affect a juror’s
impartiality,” United States v. Doe, 903 F.2d 16, 25 (D.C. Cir.
(…continued)
985 (quotation simplified). Our review of the record reveals that
Graves did not ever raise any constitutional issue before the trial
court. Graves argues that he objected during the testimony of
Officer, but this objection was specifically based on the hearsay
aspect of that particular declarant’s testimony. At no point
during the trial did Graves object to any of the State’s other
numerous mentions of Puerto Rico, and at no point did Graves
raise any objection related to racial bias or unconstitutionality.
As to the sufficiency of the evidence claim, Graves argues
that it was preserved by his motion to reduce his offense
pursuant to Utah Code section 76‐3‐402. But that statute, while it
requires a court to consider “the nature and circumstances of the
offense,” Utah Code Ann. § 76‐3‐402(1) (LexisNexis 2017), does
not concern itself with the sufficiency of evidence, and therefore
does not specifically implicate that issue.
20171023‐CA 9 2019 UT App 72State v. Graves
1990), and therefore “[t]he Constitution prohibits racially biased
prosecutorial arguments,” McCleskey v. Kemp, 481 U.S. 279, 309
n.30 (1987).
¶20 But it does not follow from these unassailable principles
that any mention of a litigant’s race or ethnicity5 is always
constitutionally impermissible. In certain instances, references to
race “pose[] no threat to [the] purity of the trial.” Doe, 903 F.2d at
25. Race or ethnicity may be, for instance, a critical piece of the
identification of a suspect or a victim, and the mention of race or
ethnicity in such fact‐based contexts does not violate a
defendant’s rights. Id. at 26. Yet, a trial can be rendered
constitutionally unsound by even one statement inappropriately
appealing to racial prejudice or emotion. See id. (stating that even
a “brief . . . use of race” in a non‐fact‐based way “as a factor in
closing argument is improper” (quotation simplified)). “The line
of demarcation” between permissible and impermissible
invocations of race “is crossed . . . when the argument shifts its
emphasis from evidence to emotion.” Id. at 25. On the one hand,
evidence‐based “unembellished reference[s]” to race or ethnicity
“pose[] no threat to [the] purity of the trial.” Id. On the other
hand, emotion‐based invocation of race, in an attempt to tap into
5. We recognize that race, ethnicity, and ancestry are
overlapping and fluid concepts, especially in relation to the
terms “Hispanic” and “Latino.” See, e.g., Hispanic Origin, United
States Census Bureau, https://www.census.gov/topics/populatio
n/hispanic‐origin.html [https://perma.cc/6JUF‐3V27] (“Hispanic
origin can be viewed as the heritage, nationality, lineage, or
country of birth of the person or the person’s parents or
ancestors before arriving in the United States. People who
identify as Hispanic, Latino, or Spanish may be any race.”). From
a constitutional standpoint, “it matters not whether [a] reference
is to race, ancestry or ethnic background.” United States v. Doe,
903 F.2d 16, 25 (D.C. Cir. 1990).
20171023‐CA 10 2019 UT App 72State v. Graves
the potential or perceived racial bias of jurors, is “beyond the
pale of legally acceptable modes of proof.” Id.
¶21 In this case, Graves argues that, during the trial, the State
violated his constitutional rights by “repeatedly” referring to his
Puerto Rican heritage. Indeed, Graves asserts that his ethnicity
was mentioned 57 times” during the two‐day trial, including “48
times the second day.”6 Graves concludes therefrom that his trial
was irretrievably tainted by racist implications, and that his
constitutional right to a fair trial was violated.
¶22 In response, the State makes two basic points, both of
which are sound. First, the State notes that each of the references
to Puerto Rico was, viewed individually, either entirely
innocuous; brought up by Graves himself; or related to the
statement Graves was alleged to have made at the time of the
shooting, which statement the State maintains has probative
value in establishing Graves’s intent at the time he fired the gun.
That is, the State contends—and Graves does not specifically
contest—that each of the individual references to Puerto Rico
was evidence‐based rather than emotion‐based. Second, the State
correctly points out that Graves failed to object to any of the
multiple references to Puerto Rico on the ground that they were
racially motivated or that they deprived Graves of a fair trial for
racial reasons, and argues that Graves has fallen short of
demonstrating that the trial court committed plain error.
¶23 As noted above, in order to show that the trial court
plainly erred, Graves must demonstrate that “(1) an error exists;
(2) the error should have been obvious to the [trial] court; and
(3) absent the error, there is a reasonable likelihood of a more
6. While the State takes issue with Graves’s count of the number
of times “Puerto Rico” was mentioned, and pegs the total
number at fifty‐one rather than fifty‐seven, there is no doubt that
Puerto Rico was discussed often during the trial.
20171023‐CA 11 2019 UT App 72State v. Graves
favorable outcome,” i.e., that the error was harmful. State v.
Robinson, 2018 UT App 227, ¶ 25 (quotation simplified). Graves
cannot satisfy this standard in this case.
¶24 First, Graves fails to convince us that any error occurred
with respect to the number of times Puerto Rico was mentioned
at trial. See McCleskey, 481 U.S. at 309 n.30; see also Doe, 903 F.2d
at 25. Graves makes no effort to identify any individual
comment or question by the prosecutor that amounts to an
appeal to racial passion. To be sure, the prosecutor asked
multiple witnesses about Graves’s alleged statement, and
mentioned it again during closing argument. But Graves denied
making the statement, and by asking about it the prosecutor
demonstrated that two witnesses had been consistent in their
recollection of it, that one witness was inconsistent in his
recollection of it, and that Graves denied it altogether. These
types of questions did not violate Graves’s constitutional rights,
since “unembellished reference[s] to evidence of race . . . pose[]
no threat to [the] purity of the trial.” Doe, 903 F.2d at 25. In the
end, Graves has simply failed to demonstrate that the State’s
questioning about this issue was excessive, or that any
individual reference to Puerto Rico was, standing alone,
emotion‐based rather than evidence‐based.7
¶25 Graves’s argument is further undermined by the fact that
at least twenty of the references to Puerto Rico were introduced
by the defense or defense witnesses. Graves’s mother—a defense
witness—mentioned Puerto Rico four times during her
testimony, and Graves’s attorney even specifically asked her,
“How long have you lived in Puerto Rico?” and “Have you ever
7. As further indication of the State’s evidence‐based (rather than
emotion‐based) reasons for asking about Puerto Rico, it is worth
noting that the prosecution resisted any temptation to ask
Brother, Neighbor, or Trooper about Graves’s alleged statement,
even though it might have had valid grounds to do so.
20171023‐CA 12 2019 UT App 72State v. Graves
left Puerto Rico?” Graves testified in his own defense, and he
and his attorney mentioned Puerto Rico nine times during
Graves’s own direct examination. Defense counsel also repeated
Graves’s alleged statement about Puerto Rico three times while
cross‐examining some of the State’s witnesses, and mentioned
the statement himself twice during closing argument.
¶26 In addition, several other references to Puerto Rico came
from witnesses, rather than at the instance of the prosecutor, and
Graves directs us to no case law in which a reference to race or
ancestry made by a witness—rather than by the State—was held
to be constitutional error. Indeed, in Doe, the racially‐based
evidence given by a detective, some of which had been elicited
during questioning by the government, was analyzed and
excluded under rules 402 and 403 of the Federal Rules of
Evidence, not the Constitution, even while the racially‐based
remarks made by the prosecutor that relied on the very same
evidence were analyzed and excluded on constitutional grounds.
903 F.2d at 19–28.
¶27 Furthermore, Graves acknowledged at oral argument that
the trial court properly allowed into evidence at least some
references to Graves’s Puerto Rican heritage, including
references to the statement Graves was alleged to have made
while firing the gun, and made clear that he does not take the
position that the trial court was under an obligation, on the facts
of this case, to scrub the trial clean of all references to Puerto
Rico. Instead, Graves asserts that “at some point” the cumulative
effect of the repeated references to Puerto Rico became error. By
conceding that at least some of the references are permissible,
and by failing to identify any of the specific references as
emotion‐based rather than evidence‐based, Graves is effectively
acknowledging that the State’s individual references to Puerto
Rico were the type of “unembellished reference” to ancestry that
is not constitutionally forbidden, since even a single appeal to
race‐based emotion would be impermissible. See id. at 25.
20171023‐CA 13 2019 UT App 72State v. Graves
¶28 While we certainly leave open the possibility that, in a
different case, repeated and gratuitous references to race (even in
an evidence‐based context) might be employed for an improper
racially‐motivated purpose,8 Graves has not persuaded us that
any such thing happened here. As an initial matter, Graves does
not identify any specific juncture in the trial, activated by any
specific comment or question by the State, at which he believes
the references crossed the line from individually permissible to
cumulatively impermissible. He merely asserts that this must
have happened “at some point.” Without more assistance from
Graves on this point, we have a hard time discerning any reason
to vary our usual rule that a series of non‐errors cannot amount
to cumulative error. Cf. State v. King, 2017 UT App 43, ¶ 38, 392
P.3d 997 (“Because we have identified no errors . . . it follows
that there can be no prejudice resulting from multiple errors for
us to consider cumulatively.”). In the end, our review of the trial
transcript leaves us unconvinced that the references to Graves’s
Puerto Rican heritage were constitutionally impermissible.
¶29 Next, even if we were to adopt Graves’s position that a
large enough number of individually‐permissible fact‐based
references to race can at some point become unconstitutional
simply by sheer force of repetition, he would still not prevail
here, because any error, in order to constitute plain error, must
have been obvious to the trial court. “To establish that the error
should have been obvious to the trial court, the appellant must
show that the law governing the error was clear at the time the
alleged error was made.” State v. Ringstad, 2018 UT App 66, ¶ 79,
424 P.3d 1052 (quotation simplified). “An error is not obvious if
8. We also note that repeated comments or questions quickly
lose their probative value, and would be ripe for an objection—
pursuant to rule 403 of the Utah Rules of Evidence—that the
comments are cumulative, are a waste of time, or have little
probative value compared to their potentially prejudicial effect.
In this case, however, Graves lodged no such objection.
20171023‐CA 14 2019 UT App 72State v. Graves
there is no settled appellate law to guide the trial court.” Id.(quotation simplified). We are aware of no case, and Graves
directs us to none, espousing the principle he now advocates.
¶30 Graves argues that it is clear from cases such as McCleskey
that the Constitution protects defendants from the “introduction
of racial prejudices at trial.” Graves correctly points out that
McCleskey stands for the proposition that judges must “engage[]
in unceasing efforts to eradicate racial prejudice from our
criminal justice system.” 481 U.S. at 309 (quotation simplified).
But McCleskey also recognizes that, in all cases, there exists the
risk that racial or “other kinds of prejudice” might influence the
trial, id. at 308, and that, “[d]espite these imperfections, our
consistent rule has been that constitutional guarantees are met
when the mode for determining guilt or punishment itself has
been surrounded with safeguards to make it as fair as possible,”
id. at 313 (quotation simplified). Indeed, no court of which we
are aware has placed a limit on the number of times a prosecutor
may make individually‐permissible, evidence‐based references
to race during a trial. See generally Pena‐Rodriguez v. Colorado, 137
S. Ct. 855, 867–68 (2017) (listing safeguards “enforc[ing] the
Constitution’s guarantee against state‐sponsored racial
discrimination,” which list does not include any limits on the
number of times a prosecutor may mention race); McCleskey, 481
U.S. at 309 n.30 (same). Because there was no clear appellate law
stating that repeated permissible references to race or ethnicity
can amount to cumulative constitutional error, we cannot
conclude that Graves’s alleged error would have been obvious to
the trial court from a legal standpoint. In addition, from a factual
standpoint, we are unconvinced after reviewing the trial
transcript that there was any point at which it should have
become obvious to the judge that the trial had become
irretrievably infected by the introduction of race‐based evidence
or argument.
¶31 Finally, Graves argues that his conviction is not
supported by sufficient evidence. In considering “an
20171023‐CA 15 2019 UT App 72State v. Graves
insufficiency of the evidence claim, we review the evidence and
all inferences which may reasonably be drawn from it in the
light most favorable to the verdict of the jury.” State v. Nielsen,
2014 UT 10, ¶ 46, 326 P.3d 645 (quotation simplified). “We may
reverse a verdict only when the evidence, so viewed, is
sufficiently inconclusive or inherently improbable that
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime of which he or she was
convicted.” Id. (quotation simplified). Graves points to the fact
that law enforcement did not conclusively link the gun Graves
used to either the mark on the car or the hole in the neighbor’s
house, and to conflicts in the testimonies of the various
witnesses. But the two witnesses who saw the events best both
testified that Graves shot at them, not into the air, and other
witnesses testified that they saw Graves pointing the gun in the
direction of SO for at least part of the altercation. The identity of
the gun was never in issue, and Detective testified that the mark
on the car and the hole found in the neighbor’s house were
consistent with the caliber of the gun Graves used. This evidence
is neither inconclusive nor improbable, especially when viewed
“in the light most favorable to the verdict of the jury,” id.(quotation simplified), and we therefore conclude that there was
sufficient evidence to support Graves’s conviction.
CONCLUSION
¶32 We have reviewed the trial transcript and other relevant
portions of the record and are unconvinced that Graves’s trial
was impermissibly infected by racial prejudice. Graves has not
shown how or where the prosecutor’s references to Puerto Rico
during trial became constitutionally forbidden appeals to racial
bias, or at what point this would have become an obvious error.
Nor has Graves shown how the evidence presented at trial was
inherently improbable or insufficient to support his convictions.
¶33 Affirmed.
20171023‐CA 16 2019 UT App 72