State v. Martinez

2019 UT App 166

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
SAUL MARTINEZ,
Appellant.

Opinion
No. 20161019-CA
Filed October 18, 2019

Third District Court, Salt Lake Department
The Honorable Richard D. McKelvie
No. 151907946

Alexandra S. McCallum, Wojciech S. Nitecki, and
Lacey C. Singleton, Attorneys for Appellant
Sean D. Reyes and Nathan D. Anderson, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES KATE APPLEBY and RYAN M. HARRIS concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 On a dark and rainy night, Saul Martinez shot at his
wife’s lover on the side of a road in front of an off-duty police
sergeant (Sergeant). Martinez was convicted of attempted
murder, aggravated assault, three counts of felony discharge of a
firearm, and possession of a dangerous weapon by a restricted
person. Martinez appeals, contending that the trial court erred
when it permitted the jury to hear arguably inadmissible hearsay
testimony. Further, Martinez contends that his convictions for
felony discharge of a firearm should be vacated, arguing that
they should have merged with his attempted murder conviction.
We affirm.
State v. Martinez

BACKGROUND 1

¶2 While driving home to Tooele, Utah, from work one
night, Sergeant noticed a man (Victim) walking in the heavy rain
along the side of the road carrying a gas can. Victim was walking
to his car, which had run out of gas. Sergeant picked up Victim
in his personal, unmarked truck and drove Victim to his car. As
Victim got out of Sergeant’s truck, a white SUV pulled up
behind them. Victim identified the driver as Martinez and told
Sergeant, “This guy wants to kill me.” Sergeant responded,
“What?” Victim again said, “This guy is going to kill me.”
Looking in his side-view mirror, Sergeant saw Martinez get out
of the SUV and walk toward Victim holding a large, silver
handgun. Sergeant yelled at Victim to “get back in the truck.”
Victim jumped into the truck, and as the two men sped away,
Martinez rapidly fired three shots toward Sergeant’s truck. All
three bullets lodged in the passenger side of the truck where
Victim was sitting.

¶3 Earlier that day, Martinez had borrowed a white SUV
from his neighbor that he never returned. The day after the
shooting, police found the SUV abandoned approximately ten
miles from the scene of the shooting. Martinez was nowhere to
be found at the time, but he was located and arrested four
months later in Los Angeles, California. Martinez was charged
with attempted murder, aggravated assault, use of a firearm by a
restricted person, and three counts of felony discharge of a
firearm.

1. On appeal from a jury verdict, “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.” Gregg v. State, 2012 UT 32, ¶ 2, 279 P.3d
396 (quotation simplified).

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State v. Martinez

¶4 At trial, the jury heard testimony that Martinez and his
wife (Wife) were having marital problems. They had been
together for sixteen years and had a daughter (Daughter).
Around the same time that the couple began having marital
problems, Victim and Wife developed a friendship that Victim’s
work supervisor and Wife’s brother (Brother-in-law) believed
was romantic in nature, though Victim denied such a
relationship. Martinez thought that Victim was trying “to steal
[Wife] and [Daughter].” Witnesses at trial testified that on three
separate occasions, Martinez either threatened Victim or
expressed a plan to kill him.

¶5 Approximately one month before the shooting, Victim,
Wife, Daughter, and others were eating dinner at a friend’s
house. Martinez knocked on the door and let himself in without
waiting for someone to answer the door. Martinez looked
“upset” and, without saying a word, positioned his fingers in the
shape of a gun, pointed it at Victim for approximately three or
four seconds, and then left with Wife and Daughter.

¶6 Three days before the shooting, Victim’s co-worker
informed him that Martinez was outside of the restaurant where
they worked, and Victim told his co-worker to “call the police
because [Martinez] had threatened to kill [him].” When Victim
finished working, Martinez was still outside the restaurant
speaking with Victim’s supervisor, who was a friend of
Martinez. Victim approached Martinez and asked him if he was
“looking for [him] to kill [him].” When counsel inquired why
Victim would say that to Martinez, Victim testified, “Because all
the people from Tooele, they were telling me that he was looking
for me . . . to kill me.” Martinez’s counsel objected to the answer
as hearsay. The court overruled the objection, determining that
Victim’s statement was not being “offered for the truth of the
matter asserted.” The prosecutor then repeated his question, and
Victim again answered, “Because in Tooele everybody was
telling me that [Martinez] wanted to kill me.” Victim testified

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that in response to Victim’s inquiry about why he was waiting
for Victim, Martinez replied, “No, not now or here at this
moment, but I know where you . . . live, and sooner or later I will
kill you.”

¶7 Just hours before the shooting, Martinez told Brother-in-
law that he was planning to kill Victim. Brother-in-law testified
that Martinez had been drinking when he arrived at Brother-in-
law’s home and that Martinez was there “to say goodbye” to
him and his family. Martinez reported that he was going to be
leaving town soon as he “already had everything prepared to be
able to kill [Victim]” because he was not going to let Victim
“steal” Wife and Daughter from him. Martinez appeared
“extremely nervous” and told Brother-in-law “that he couldn’t
handle everything that was going on, that he had to end all of
this.” Martinez then showed Brother-in-law his gun and was
“very clear” that he wanted to kill Victim and that the reason he
had the gun was “to do it.” And while Brother-in-law testified
that Martinez would occasionally jokingly threaten to kill
people, “that day [he] felt that [Martinez] was serious.”

¶8 Martinez was convicted on all counts. Martinez moved to
vacate the three counts of felony discharge, arguing that those
convictions should merge with his attempted murder conviction
because Martinez attempted to murder Victim by shooting at
him and that discharging his firearm was therefore part of the
same criminal episode. The trial court denied the motion, and
Martinez appeals.

ISSUES AND STANDARDS OF REVIEW

¶9 Martinez raises two issues on appeal. First, he argues that
certain out-of-court statements made by unidentified persons
and admitted at trial were hearsay and that the trial court erred
in allowing the jury to hear Victim’s testimony regarding out-of-
court statements. “In reviewing hearsay rulings, we review legal

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State v. Martinez

questions for correctness, factual questions for clear error, and
the final ruling on admissibility for abuse of discretion.” State v.
McNeil, 2013 UT App 134, ¶ 14, 302 P.3d 844, aff’d, 2016 UT 3, 365
P.3d 699. If a trial court errs in admitting hearsay, an appellant
will prevail on appeal only upon a showing that there was a
“reasonable likelihood of a more favorable result” absent the
statements. Id. ¶ 41 (quotation simplified).

¶10 Second, Martinez contends that the trial court erred in
refusing to merge his convictions for felony discharge of a
firearm with his conviction for attempted murder. Merger issues
are questions of law reviewed for correctness. State v. Wilder,
2018 UT 17, ¶ 15, 420 P.3d 1064.

ANALYSIS

I. Hearsay

¶11 Martinez first contends that the trial court erred in
admitting Victim’s testimony that multiple unidentified
residents of Tooele relayed to him that Martinez was looking for
Victim to kill him. Martinez argues that this testimony
was inadmissible hearsay and that its admission at trial
prejudiced him. Hearsay is an out-of-court statement that is
offered “to prove the truth of the matter asserted.” Utah R. Evid.
801(c). The Utah Rules of Evidence prohibit the admission of
hearsay unless the evidence meets one of several exceptions. Id.
R. 802. However, even if hearsay is erroneously admitted, a
challenger must show prejudice to prevail on appeal. State v.
Boyle, 2019 UT App 28, ¶ 16, 440 P.3d 720; see also State v. Vargas,
2001 UT 5, ¶ 48, 20 P.3d 271 (“We will not reverse the trial
court for committing harmless error.” (quotation simplified)).
“[O]ur prejudice analysis asks whether we remain confident that
the verdict would be the same” had the hearsay been excluded.
State v. McNeil, 2016 UT 3, ¶ 31, 365 P.3d 699. To reverse a
jury verdict, it is not enough that there is “a mere possibility” of

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State v. Martinez

a different outcome; there must be “a reasonable likelihood that
the error affected the result.” State v. Jeffs, 2010 UT 49, ¶ 37, 243
P.3d 1250 (quotation simplified).

¶12 At trial, the prosecutor questioned Victim about why
he asked Martinez if he was looking for Victim to kill him.
In response, Victim testified two different times that he was
told by “everybody” and “all the people” in Tooele that
Martinez was looking for him to kill him. The trial court
overruled Martinez’s hearsay objection. Martinez argues that
Victim’s two statements were offered for their truth and that
he was prejudiced by their admission. The State argues that
the statements were only “offered to explain why Victim
confronted Martinez.” For this appeal, we will assume, without
deciding, that Victim’s testimony regarding rumors he heard
from unidentified Tooele residents constituted inadmissible
hearsay. See Boyle, 2019 UT App 28, ¶ 16. But we conclude that
any error in admitting the statements was not prejudicial in this
case.

¶13 We consider several factors when determining whether
the admission of hearsay evidence is harmful in a given case.
State v. McNeil, 2013 UT App 134, ¶ 52, 302 P.3d 844, aff’d, 2016
UT 3, 365 P.3d 699.

These include the importance of the witness’s
testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence
of evidence corroborating or contradicting the
testimony of the witness on material points, the
extent of cross-examination otherwise permitted,
and, of course, the overall strength of the
prosecution’s case.

Id. (quotation simplified). We “may also consider the degree of
emphasis the prosecution placed on the evidence in presenting
its case.” Id.

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¶14 Martinez contends that the admitted hearsay statements
made it more likely that the jury would determine that Martinez
was the person who shot at Victim. He argues that the improper
admission of the hearsay statements left the jury with the
impression that Martinez had communicated to a large number
of Tooele residents his intent to kill Victim, that his threats
seemed so serious that others felt the need to warn Victim, and
that Martinez had actually taken steps to look for Victim. These
rumors suggested that “the planned pursuit of [Victim] . . . led
Martinez to the crime scene” and undermined Martinez’s theory
that the crime was “a chance encounter involving a random
shooter.” Martinez concludes that there was “a reasonable
likelihood that but for the hearsay, the jury would have doubted
that Martinez was the shooter or that he acted with the intent to
kill [Victim].” We are not persuaded. Nearly all the information
communicated in the two hearsay statements was cumulative
and corroborated by other testimony at trial and therefore was
not critical evidence in the State’s overall case.

¶15 As described above, Martinez threatened Victim when he
rushed into a house looking “upset” and arranged his fingers in
the shape of a gun, pointing it at Victim for approximately three
or four seconds. Three days before the shooting, Martinez
threatened Victim in front of Victim’s supervisor. Victim asked
Martinez “if [Martinez] was looking for [Victim] to kill [him].”
Martinez replied, “No, not now or here at this moment, but I
know where you . . . live, and sooner or later I will kill you.”
And just hours before the shooting, Martinez confided in
Brother-in-law that he planned to kill Victim and then proceeded
to show Brother-in-law his gun. 2

2. Martinez argues that “the jury had reason to doubt that
Martinez was serious” in telling Brother-in-law that he was
going to kill Victim because “Martinez had jokingly talked about
(continued…)

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State v. Martinez

¶16 We agree with the State that “vague statements from
unknown Tooele residents made at unknown times are not more
believable than Martinez’s own, detailed statements made days
and hours before the shooting.” The supervisor’s and Brother-in-
law’s testimonies are particularly strong evidence because both
had personal connections to Martinez. Brother-in-law in
particular was very specific, stating that Martinez had a gun and
“had everything prepared” to go after Victim mere hours before
the shooting. The State also placed little emphasis on the hearsay
statements from random Tooele residents. Over the course of the
three-day trial, the rumors from Tooele residents came up only
one time during Victim’s testimony. Neither the State nor
Martinez questioned any other witness about the rumors, and
the State did not refer to those statements during its closing
argument.

¶17 Additionally, we are not persuaded that the jury would
have interpreted the phrases “everybody” and “all the people”
of Tooele to literally mean that a large number of Tooele
residents approached Victim to warn him that Martinez was
looking for him to kill him. A reasonable juror would interpret
those statements as exaggeration. Cf. United States v. Recio, 884
F.3d 230, 238 (4th Cir. 2018) (stating that a jury could interpret a
statement that someone “always” carried a gun as exaggerated,
“describing a pattern of regularly (though not invariably)
carrying a gun” (quotation simplified)); Troy Group, Inc. v. Tilson,
364 F. Supp. 2d 1149, 1156 (C.D. Cal. 2005) (stating that clearly
exaggerated, colloquial language “does not lend itself to a literal

(…continued)
killing people before.” While Brother-in-law acknowledged that
Martinez had generally threatened to kill as a way to “play
around with people,” Brother-in-law testified that on “that day
[he] felt that [Martinez] was serious” and that “[i]t was very
clear to [him] that what [Martinez] wanted to do was kill.”

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interpretation by the average reader”). And we are not
persuaded that the vague statements from unidentified Tooele
residents carried more weight and credibility with the jury than
the testimony of people who had actual relationships with
Martinez. The State also presented stronger evidence
demonstrating that Martinez was the one who shot at Victim
than just the two hearsay statements. Apart from Martinez
making his intentions and plans known to others, Victim saw the
shooter and was “100 percent” certain it was Martinez. Further
evidence showed that Martinez borrowed a white SUV from his
neighbor the day of the shooting, that Victim and Sergeant each
said the shooter was driving a white SUV, that the neighbor’s
SUV was found abandoned the next day, and that Martinez had
seemingly left town the day after the shooting and was later
found in California.

¶18 To reverse a jury verdict based on the erroneous
admission of hearsay, an appellant must present more than “a
mere possibility” of a different outcome; he must show “a
reasonable likelihood that the [hearsay] affected the result.”
State v. Jeffs, 2010 UT 49, ¶ 37, 243 P.3d 1250 (quotation
simplified). Without the two hearsay statements, the jury
still would have heard evidence of Martinez’s multiple threats
to kill Victim, Victim’s identification of Martinez at the scene
of the crime, that Martinez borrowed a vehicle the day of
the shooting that matched the description of the one the
shooter was driving, that the vehicle was found abandoned
the day after the shooting, and that Martinez was located in
a different state several months after the shooting. We determine
that any erroneous admission of the two hearsay statements
is not enough to undermine our confidence in the verdict,
and even if the hearsay had been excluded, Martinez has not
shown a “reasonable likelihood that the error affected the
outcome in the trial court.” See State v. McNeil, 2013 UT App 134,
¶ 57, 302 P.3d 844 (quotation simplified), aff’d, 2016 UT 3, 365
P.3d 699.

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State v. Martinez

II. Merger

¶19 Martinez next asserts that the trial court erred in
denying his motion to vacate his felony discharge-of-a-
firearm convictions on the ground that those offenses
should have merged with his attempted murder conviction.
Merger is a legal doctrine designed “to protect criminal
defendants from being twice punished for committing a single
act that may violate more than one criminal statute.” State v.
Diaz, 2002 UT App 288, ¶ 17, 55 P.3d 1131. Merger becomes an
issue when “two statutes or two portions of a single statute
proscribe certain conduct, and the question is whether the
defendant can be punished twice because his conduct violates
both proscriptions.” State v. Lopez, 2004 UT App 410, ¶ 4, 103
P.3d 153 (quotation simplified). Utah Code section 76-1-402
provides, “[W]hen the same act of a defendant under a single
criminal episode shall establish offenses which may be punished
in different ways under different provisions of this code, the act
shall be punishable under only one such provision . . . .” Utah
Code Ann. § 76-1-402(1) (LexisNexis 2012). Similarly, if an
offense is a lesser included offense of another charged offense, a
defendant may not be convicted of both offenses. See id. § 76-1-
402(3). Pursuant to these provisions, Martinez argues that he is
entitled to merger of his attempted murder and felony
discharge-of-a-firearm convictions. 3 But even accepting that
section 76-1-402, standing alone, would require merger of

3. Martinez initially argued another ground for merger—the
common law merger doctrine as described in State v. Finlayson,
2000 UT 10, 994 P.2d 1243. After Martinez filed his brief, our
supreme court issued a decision in State v. Wilder, 2018 UT 17,
420 P.3d 1064, overruling Finlayson’s common-law merger test,
id. ¶ 38. Martinez acknowledges in his reply brief that common-
law merger no longer applies, and we do not address this
argument further.

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State v. Martinez

Martinez’s crimes, Martinez’s merger claim ultimately fails
because the Utah Code expressly allows cumulative
punishments for felony discharge of a firearm and attempted
murder. See id. § 76-5-203(5)(a).

¶20 Our supreme court has recognized that “some statutes
operate as ‘enhancement statutes.’” State v. Bond, 2015 UT 88,
¶ 70, 361 P.3d 104. Such statutes “are different in nature
than other criminal statutes because they single out particular
characteristics of criminal conduct as warranting harsher
punishment.” State v. Smith, 2005 UT 57, ¶ 10, 122 P.3d 615
(quotation simplified). “And where the Legislature has
designated a statute as an enhancing statute, the merger doctrine
has no effect.” Bond, 2015 UT 88, ¶ 70; see also State v. Alfatlawi,
2006 UT App 511, ¶ 39, 153 P.3d 804 (“[E]nhancement statutes
do not violate the Fifth Amendment’s prohibition on
double jeopardy if the legislature specifically authorized
cumulative punishment for a crime committed with a dangerous
weapon.”). For the legislature to exempt an offense from
operation of the merger doctrine, the plain language
and structure of the pertinent statute must provide “an explicit
indication of legislative intent.” Bond, 2015 UT 88, ¶ 70
(quotation simplified). “Only when such an explicit indication of
legislative intent is present in the specific offense statute will
we consider it appropriate to exempt that statute from operation
of the general merger requirements . . . .” Smith, 2005 UT 57,
¶ 11.

¶21 Section 76-5-203 of the Utah Code contains a list of
“predicate offense[s]” that “do[] not merge with the crime
of murder.” See Utah Code Ann. § 76-5-203(5)(a). The phrase
“predicate offense” is a defined term, see id. § 76-5-203(1), and
the definition our legislature has chosen for that term includes,
among other things, felony “discharge of a firearm or dangerous
weapon,” id. § 76-5-203(1)(v). A plain reading of this provision
demonstrates that the legislature explicitly indicated its intent to

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preclude felony discharge of a firearm from merging with a non-
aggravated murder 4—or attempted murder—charge.

¶22 Martinez asserts that the merger provision should be read
as pertaining only to murder charges premised on a felony-
murder theory—not to situations where knowing or intentional
murder is alleged. But merger with respect to felony murder is
addressed separately in section 76-5-203(5)(b), which explicitly
pertains to circumstances where a person “is convicted of
murder, based on a predicate offense.” Id. § 76-6-203(5)(b). Thus,
construing section 76-5-203(5)(a) as pertaining only to felony
murder would render section 76-5-203(5)(b) superfluous. When
engaging in plain-language analysis of a statute, we “avoid
interpretations that will render portions of a statute superfluous
or inoperative.” Hall v. Utah State Dep’t of Corr., 2001 UT 34, ¶ 15,
24 P.3d 958. Thus, we cannot accept Martinez’s assertion
regarding the limitations of section 76-5-203(5)(a).

¶23 Martinez also contends that section 76-5-203(5)(a) does
not apply to attempt crimes, because the statute states that the
enumerated predicate offenses are prohibited from merging with
“murder” and does not explicitly mention attempted murder.
See Utah Code Ann. § 76-5-203(5)(a). However, “[a]ttempt crimes
are derivatives of completed crimes, and the express language of
both the completed crime statute and the attempt statute

4. Contemporaneous with this decision, we issued a decision in
State v. Bowden, 2019 UT App 167, in which we held that a
defendant’s felony discharge-of-a-firearm convictions should
have merged with his attempted aggravated murder conviction.
Although that result may appear inconsistent with our decision
here, differences between the plain language of the non-
aggravated murder statute at issue in this case and that of the
aggravated murder statute at issue in Bowden mandate such a
result. See id. ¶ 25 n.6; id. ¶¶ 27–30 (Harris, J., concurring).

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determines the elements of the attempt crime.” State v. Casey,
2003 UT 55, ¶ 13, 82 P.3d 1106. Strictly speaking, there is no
stand-alone attempted murder statute that is separate from the
murder statute. See id. ¶ 43 n.11. Rather, attempted murder is
basically an incomplete offense. To determine whether an
attempted murder has been committed, we must look to the
elements of the murder statute and evaluate whether an actor
has taken a “substantial step toward commission of the
[murder].” See Utah Code Ann. § 76-4-101(1) (LexisNexis 2012);
see also Casey, 2003 UT 55, ¶ 13 (“[A] conviction for attempted
murder must satisfy the elements of the murder statute, with the
obvious exception that the murder need not be completed, and
the attempt statute.”). Indeed, Martinez was charged with
attempted murder pursuant to section 76-5-203, the murder
statute. Because both murder and attempted murder are
evaluated using the same statutory elements, the prohibition
against a predicate offense merging with murder also prevents
that offense from merging with attempted murder. Thus, the
trial court did not err in denying Martinez’s motion to vacate his
felony discharge-of-a-firearm convictions.

CONCLUSION

¶24 We conclude that the trial court’s admission of two
hearsay statements, even if erroneous, did not prejudice
Martinez. Additionally, we hold that the crime of felony
discharge of a firearm does not merge with the crime of
attempted murder. Accordingly, we affirm Martinez’s
convictions.

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