State v. Leech

2020 UT App 116
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
C HRISTOPHER K IM LEECH ,
Appellant.
OpinionOpinion
No. 20160995-CA
Filed August 13, 2020
Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 141900235
Debra M. Nelson, Wojciech S. Nitecki, Lacey C.
Singleton, and Melissa G. Stirba,
Attorneys for Appellant
Sean D. Reyes and John J. Nielsen,
Attorneys for Appellee
JUDGE DIANA H AGEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and R YAN M. HARRIS concurred.
HAGEN, Judge:
¶1 	As payback for a drug deal gone wrong, Christopher Kim
Leech allegedly robbed and kidnapped two men, forced one to
shoot the other, and then directed his cohorts to cover up the
crimes. 	Leech 	was 	ultimately 	convicted 	on 	two 	counts 	of
aggravated kidnapping, two counts of aggravated robbery, one
count of aggravated murder, and one count of obstruction of
justice. Leech appeals his convictions, arguing that the district
court erroneously admitted the preliminary hearing testimony of
a witness who refused to testify at trial. We agree with Leech
that 	the 	preliminary 	hearing 	testimony 	was 	not 	admissible
under rule 804(b)(1) of the Utah Rules of Evidence because the

State v. Leech
20160995-CA 	2 	2020 UT App 116
defense 	did 	not 	have 	a 	similar 	motive 	and 	opportunity 	to
develop the witness’s testimony at the preliminary hearing as it
would have had if the witness had testified at trial. We further
conclude that the admission of this testimony prejudiced his
defense with respect to his conviction for obstruction of justice,
but not his remaining convictions. Accordingly, we affirm his
convictions for aggravated kidnapping, aggravated robbery, and
aggravated murder, but reverse and remand for a new trial on
the obstruction of justice count.
BACKGROUND
The Crimes1
¶2 	In 	late 	November 	2013, 	a 	drug 	middleman 	(the
middleman) 	was 	contacted 	by 	an 	old 	friend 	from 	high
school 	(the 	dealer) 	who 	requested 	“a 	quarter 	pound”
of 	methamphetamine 	because 	the 	middleman 	could 	“get
it cheaper” than she could. The dealer gave the middleman
$2,200 	and 	a 	rental 	car 	to 	pick 	up 	the 	methamphetamine.
The middleman’s source for methamphetamine had only two
of 	the 	four 	ounces 	that 	the 	dealer 	needed, 	but 	the
source promised the middleman he would deliver the other two
ounces the following day. But when the next day came, the
middleman could not get ahold of his source. Meanwhile, the
dealer 	was 	growing 	increasingly 	impatient. 	She 	told 	the
1. “On appeal from a jury verdict, we view the evidence and all
reasonable inferences in the light most favorable to that verdict
and recite the facts accordingly.” State v. Scott, 2020 UT 13, ¶ 5
n.3, 462 P.3d 350. In doing so, we do not suggest that this is the
only 	version 	of 	the 	facts 	that 	could 	be 	supported 	by 	the
evidence. If the State elects to retry Leech on the obstruction
count, a newly empaneled jury must draw its own conclusions
from the evidence presented in that trial.

State v. Leech
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middleman that her customers were waiting and that “[he]
needed to hurry up.”
¶3 	The middleman contacted his best friend (the victim) who
“said that he could get . . . [t]he other two ounces” but that “it
was going to be a little bit more expensive.” The middleman
gave the remaining cash and the rental car to the victim so that
the victim could obtain the additional two ounces. The two
ounces of methamphetamine that the middleman had already
acquired were still hidden in the trunk of the rental car.
¶4 	For the next few hours, the middleman “dodged” the
dealer’s phone calls and waited for the victim to come back with
the drugs. Eventually, after hearing nothing from the victim, the
middleman called the dealer and told her that she needed to pick
him up.
¶5 	After picking up the middleman, the dealer drove him to
her mother’s house (the house), where they waited until her
boyfriend, 	known 	as 	T.J., 	arrived. 	T.J., 	the 	dealer, 	and 	the
middleman 	then 	drove 	around 	surrounding 	neighborhoods
looking for the victim. The dealer “was a little stressed out” and
told the middleman that she “was just tired of people ripping
her off.” They could not find the victim, so they returned to the
house and smoked methamphetamine in the garage.
¶6 	After a while, the dealer “heard a truck pull up” and told
the middleman, “[W]e need to figure this out because [Leech is]
here and he [is] going to freak out.”2 Sure enough, Leech went
2. There is no satisfying explanation for Leech’s involvement,
much less the intensity of his reaction. Although Leech was
dating one of the dealer’s sisters, the record suggests he had no
other connection to the drug deal. At trial, the defense made
much of the fact that Leech had “no motive” because he had
“nothing to do with this drug transaction” and “no dog in this
(continued…)

State v. Leech
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into the garage, “pulled out a gun,” and asked the middleman
“what 	was 	going 	on” 	and 	“what 	the 	problem 	was.” 	The
middleman said that he “was taking care of it,” but Leech, gun
still in hand, told the middleman that “it didn’t seem like [he]
was taking care of shit and that if [he] didn’t get it taken care of
it was [his] ass.”
¶7 	Leech 	kept 	the 	middleman 	in 	the 	garage 	while 	the
dealer 	continued 	to 	look 	for 	the 	victim. 	There 	were 	other
people in the house during this time. One of the witnesses
testified that when the middleman tried to come inside the
house to use the restroom, Leech and T.J. put “guns in [his] face”
and “shov[ed] him back into the garage.” According to the
witness, Leech said he “[could]n’t wait until he f[ound]” the
victim because “he was going to make [the middleman and the
victim] pay for what they did. That he was going to shoot [them]
. . . [b]ecause they took from [the dealer].” The witness testified
that 	all 	the 	men 	present 	agreed 	and 	there 	“was 	a 	lot 	of
adrenaline going.”
¶8 	Eventually, the dealer left the house with Leech, T.J., and
the 	middleman 	and 	went 	to 	her 	uncle’s 	apartment 	(the
apartment). At some point, one of the dealer’s sisters and her
(…continued)
fight.” 	The 	State 	argued 	that 	Leech 	was 	trying 	to 	send 	a
message: “You don’t steal from my girlfriend’s sister.” But it
acknowledged that Leech’s reaction was “over the top” and
“nonsensical.” In closing argument, the State recognized that it
made no “sense why [Leech] is doing this and acting just so out
of control for a couple of ounces of meth and a rental car, both of
which he got—everything back,” but it reminded the jury that it
had no burden to prove motive and that “this is one of those
cases” where the “why” is “inexplicable.”

State v. Leech
20160995-CA 	5 	2020 UT App 116
husband, known as Juice, joined them.3 While at the apartment,
a cell phone rang with an incoming call from the victim. Leech
handed the cell phone to Juice and had him tell the victim that
“if he brought the car [back] right now, . . . he gave his word
nothing would happen to him.” Juice told the victim to meet
them at the apartment and gave him the address. As they waited
for the victim to arrive, Leech “looked mad” and the middleman
was “really quiet . . . and he looked scared.”
¶9 	When the victim arrived at the apartment, Leech pointed
his gun at the middleman and the victim and ordered them to lie
on the floor. Juice pulled out a gun, too. At Leech’s direction, T.J.
retrieved 	some 	speaker 	wire 	from 	his 	truck 	and 	tied 	the
middleman’s and the victim’s hands behind their backs while
Leech took all their belongings from their pockets. Leech and T.J.
then blindfolded the two men by making a hole in the hood of
each man’s sweatshirt and tying it to the zipper with speaker
wire. They also removed the two men’s shoes.
¶10 	At Leech’s direction, the middleman and the victim were
led out of the apartment and forced into a truck. As they were
leaving, Juice’s wife asked what was going to happen to them.
Leech told her, “[D]on’t worry, nothing’s going to happen to
them. I’m going to have them . . . walk down the mountain with
their bare feet.” Juice’s wife told Leech that her husband was not
going with him, but Leech responded by “pointing the gun
towards [her,] and Juice automatically went out the door with
3. It is unclear from the testimony at trial whether Juice and his
wife were among the group at the house while the middleman
was being held in the garage or whether they made their first
appearance in this series of events at the apartment. However,
the timing of their appearance on the scene is not critical to our
analysis.

State v. Leech
20160995-CA 	6 	2020 UT App 116
Leech.” She testified that “[w]hen they all left, [she] didn’t think
any of them,” except Leech, “were coming back.”
¶11 	What happened next is based solely on the middleman’s
testimony. According to the middleman, T.J. drove him, the
victim, Juice, and Leech up a canyon. On the way, the victim
pleaded with Leech that “he didn’t have to do this, just to let
[them] go and [they] wouldn’t say anything.” But Leech told him
to “[s]hut the fuck up, it’s too late.”
¶12 	Once they reached their destination, Leech said he would
take the victim and told Juice to take the middleman. They led
the blindfolded men out of the truck and down a hill covered in
dirt and ice. At the bottom of the hill, the middleman and the
victim were forced to kneel at the top of an embankment.
Someone released their blindfolds, and the victim turned to the
middleman and said, “Sorry, bro, I guess this is it.” Leech then
shot the victim in the back. The middleman saw the victim roll
down the embankment and heard him say, “I’m dead.”
¶13 	The middleman “tensed up and stared off ahead,” just
“waiting to get shot.” Then someone cut his hands loose. Leech
grabbed the middleman, pulled him to his feet, and said, “There
is your homeboy . . . . Finish [him] or you’re next.” Leech held
one gun to the back of the middleman’s head and handed him a
second gun with a single bullet in the chamber. The middleman
pointed the gun at the victim and pulled the trigger, but the gun
jammed. When he turned to hand the gun back to Leech, he saw
Juice and T.J. standing behind him. Leech took the gun, reloaded
it, and handed it back to the middleman. With Leech’s gun still
trained on him, the middleman shot the victim in the head and
handed the gun back to Leech.
¶14 	Just then, Leech saw headlights coming down the road at
the top of the hill and told everyone to stop. Once the car passed,
Leech said, “Let’s go.” T.J. led the way back up the hill with
Juice, the middleman, and Leech following behind. At that point,

State v. Leech
20160995-CA 	7 	2020 UT App 116
the middleman saw that the other two men were armed with
guns as well.
¶15 	According to the middleman, Leech then orchestrated a
plan to dispose of the evidence. Leech said that he would “take
care of the guns” and told T.J. to detail clean his truck. Leech
told the middleman that he should continue to look for the
victim as if “nothing happened.” When they got back to the
house, Leech instructed the middleman to take a shower, leave
his clothes outside the bathroom door, and change into fresh
clothes that the dealer provided. When the middleman got out of
the shower, his clothes were gone. A few days later, the dealer
returned the middleman’s cell phone to him, but “the call log
and 	the 	text 	messages 	were 	deleted.” 	The 	dealer 	told 	the
middleman that she had asked Leech not to hurt him and was
glad he was okay.
¶16 	The middleman was arrested shortly thereafter on an
unrelated weapons charge. After his girlfriend bailed him out of
jail, 	he 	told 	her 	what 	had 	happened 	with 	the 	victim. 	The
middleman’s girlfriend called the FBI.
¶17 	The middleman was already acquainted with the FBI
because 	he 	had 	been 	working 	as 	a 	cooperator, 	providing
information 	on 	the 	drug 	cartel 	that 	supplied 	him 	with
methamphetamine. But when he was interviewed about the
victim’s 	murder, 	the 	middleman 	lied 	to 	the 	FBI 	about
“everything” that had happened that day before the men left for
the canyon. The middleman was interviewed by the FBI “three
or four” times, during which he “changed [his] story a few
times.” At trial, the middleman claimed that he had lied in an
attempt to “protect” the dealer because he felt she saved his life
by telling Leech not to kill him.
¶18 	The middleman attempted to lead law enforcement to the
victim’s body multiple times, but was never able to find its
location. Law enforcement eventually secured T.J.’s cooperation,

State v. Leech
20160995-CA 	8 	2020 UT App 116
and he led police to the scene of the shooting. To recover the
victim’s body, the officers parked on an “unimproved road,”
“passed through a gate, went down a hill, and walked down a
small embankment.” The victim’s shoeless body was clothed in a
hoodie with a hole cut into the hood. His wrists appeared to
have been bound with speaker wire and he had suffered one
gunshot wound to his torso and one to his head. The medical
examiner determined that either shot would have been fatal.
The Preliminary Hearing
¶19 	The State charged Leech with two counts of aggravated
kidnapping, two counts of aggravated robbery, one count of
aggravated murder, and one count of obstruction of justice, all
first-degree felonies. The State charged others involved in these
events with various crimes as well.
¶20 	The district court held a joint preliminary hearing for
Leech, the dealer, and Juice. At the preliminary hearing, the
district court judge, acting as a magistrate, explained to the co-
defendants,
This is a preliminary hearing and the purpose of
this proceeding . . . is for the State to put on
evidence 	in 	an 	effort 	to 	demonstrate 	probable
cause that the offenses charged were committed
and that you were the ones who committed those
offenses.
So this is a probable cause hearing, it’s not a trial.
Different standards of proof apply at a probable
cause hearing than apply at trial. One of the most
important ones is that any doubts or questions
about 	evidence 	at 	a 	preliminary 	hearing 	get
resolved 	in 	favor 	of the 	State 	and 	against 	the
defendants. So the benefit of the doubt goes to the
State in a preliminary hearing.

State v. Leech
20160995-CA 	9 	2020 UT App 116
Probable cause means enough evidence that the
Court is convinced that a reasonable jury could
find, not that they necessarily would, but that they
could find the offenses charged were committed
and that you were the individuals who committed
them. 	If 	probable 	cause 	is 	found 	under 	that
analysis, then the case would be bound over for
further proceedings at which time you would all be
afforded your entire complement of constitutional
rights . . . .
¶21 	The 	State 	then 	called 	its 	witnesses, 	including
eyewitnesses, the chief medical examiner for the State of Utah,
and a detective. Relevant to this appeal, the State called T.J. to
testify about his involvement in the crimes. At the preliminary
hearing, 	Leech’s counsel 	cross-examined 	each 	of 	the 	State’s
witnesses, including T.J.
¶22 	In 	his 	preliminary 	hearing 	testimony, 	T.J. 	largely
corroborated the middleman’s testimony. T.J. testified that, at
the apartment, he saw Leech order the middleman and the
victim to get down on the floor at gunpoint. Leech asked T.J. if
he had any rope, and T.J. retrieved some old speaker wire from
his truck. Leech told T.J. to tie up both men. When T.J. failed to
do it properly, Leech gave him instructions on how “to cross the
hands” and then took over tying the other man’s wrists. After
Leech emptied both men’s pockets, he told T.J. to pull his truck
around back. T.J. did so and waited in his truck.
¶23 	A short time later, T.J. saw the other four men emerge
from the apartment, with Juice escorting the victim and Leech
escorting the middleman. The captive men’s eyes were covered
by their hoods, which had been tied tightly around their faces.
T.J. testified that Juice and Leech placed the men into the back
seat of T.J.’s truck, with Juice climbing in after them. Leech got
into the front passenger seat and told T.J. to drive. Leech

State v. Leech
20160995-CA 	10 	2020 UT App 116
directed T.J. where to go and eventually told him to pull off on a
side road near a ski resort.
¶24 	When they got out of the truck, Leech asked T.J. for his
gun. T.J. gave his gun to Leech, who already had his own gun
tucked in the waistband of his pants. T.J. testified that Leech
then led the victim and the middleman down the hill while he
and Juice followed behind. Eventually, Leech stopped and told
the victim and the middleman to kneel on the ground. Leech
then shot the victim from behind, causing him to roll about ten
feet 	down 	the 	hill. 	T.J. 	saw 	Leech 	say 	something 	to 	the
middleman, 	but 	he 	could 	not 	hear 	what 	was 	said. 	The
middleman got up, and he and Leech walked down to the
victim. T.J. saw Leech give the middleman a gun and then saw
the middleman shoot the victim once before handing the gun
back to Leech.
¶25 	Afterward, Leech said he would “get rid of” T.J.’s gun.
T.J. testified that he did not know what happened to the gun and
never saw it again. Leech also instructed T.J. to detail his truck
and get rid of his clothes. T.J. kept his clothes and never detailed
his truck, but he gave Juice his boots, along with the clothes the
middleman left outside the bathroom when he showered. T.J.
testified that he heard Leech tell Juice to burn the clothes and the
boots.
¶26 	At the conclusion of the preliminary hearing, the district
court found that the State had “established probable cause that
[Leech] . . . committed all of the offenses charged,” and the case
proceeded to trial in September 2016.
The Trial
¶27 	At trial, just after jury selection, T.J. took the stand outside
the presence of the jury and told the court that he refused to
testify. T.J. had been given conditional use immunity, meaning
that any truthful testimony T.J. gave at Leech’s trial could not be

State v. Leech
20160995-CA 	11 	2020 UT App 116
used against him at his own trial. The court informed T.J. that his
refusal to testify despite the grant of immunity meant that he
“would be found in contempt of court.” The court ordered T.J. to
testify, but he refused to do so.
¶28 	After T.J. refused to testify, the State indicated that it
would 	move 	to 	admit 	T.J.’s preliminary 	hearing 	testimony.
Leech objected, arguing that that testimony was inadmissible
hearsay and that the exception set forth in rule 804(b)(1) of the
Utah Rules of Evidence was inapplicable. Leech asserted that he
did not have the same opportunity and motive to cross-examine
T.J. at the preliminary hearing because “it is the practice in this
jurisdiction 	to 	limit 	cross-examination 	at 	preliminary
hearing[s],” given that credibility is not relevant to the probable
cause determination. Defense counsel admitted that he “did not
pose a question” during his cross-examination of T.J. “that was
objected to and . . . sustained,” but he maintained that he did not
have the same opportunity and motive to cross-examine T.J. as
he would have had at trial because he understood the limited
scope of the hearing and because he did not have access to
additional impeachment material that became available only
after the preliminary hearing.
¶29 	In response, the State relied on State v. Brooks, 638 P.2d
537 (Utah 1981), superseded by constitutional amendment as stated in
State v. Goins, 2017 UT 61, 423 P.3d 1236, and argued that “the
case law is clear” that defense counsel “only had to have the
opportunity 	to 	cross-examine 	the 	witness” 	for 	preliminary
hearing testimony to be admissible when a witness becomes
unavailable 	at 	trial 	because 	“defense 	counsel’s 	motive 	and
interest are the same in either setting.” (Cleaned up.) The State
asserted 	that 	preliminary 	hearings 	are 	held 	“to 	preserve
testimony . . . in case somebody passes [away], in case somebody
refuses to testify, and that[’s] the nature of this [situation].” The
district 	court 	agreed 	with 	the 	State 	and 	admitted 	T.J.’s
preliminary hearing testimony at trial.

State v. Leech
20160995-CA 	12 	2020 UT App 116
¶30 	The 	jury 	convicted 	Leech 	on 	all 	counts. 	Leech 	now
appeals.
ISSUE AND STANDARD OF REVIEW
¶31 	Leech 	contends 	that, 	in 	admitting 	T.J.’s 	preliminary
hearing testimony, the district court misapplied rule 804 of the
Utah Rules of Evidence. Specifically, he argues that the hearsay
exception under rule 804(b)(1) was not satisfied because “Leech
did not have a proper opportunity and similar motive to develop
[T.J.’s] testimony” on cross-examination during the preliminary
hearing.4 “When reviewing rulings on hearsay, we review legal
questions regarding admissibility for correctness, questions of
fact for clear error, and the final ruling on admissibility for abuse
of discretion.” State v. Garrido, 2013 UT App 245, ¶ 10, 314 P.3d
1014 (cleaned up). If we determine that the hearsay testimony
should not have been admitted, we will reverse “only if a
reasonable likelihood exists that absent the error, the result
would have been more favorable to the defendant.” State v.
Goins, 2017 UT 61, ¶ 48, 423 P.3d 1236 (cleaned up).
ANALYSIS
I. Admission of Preliminary Hearing Testimony
¶32 	Leech contends that the district court erred in admitting
T.J.’s preliminary hearing testimony when T.J. refused to testify
4. Leech also raises a cumulative error argument, but because
Leech asserts only one error on appeal, the cumulative error
doctrine does not apply. See ConocoPhillips Co. v. Utah Dep’t of
Transp., 2017 UT App 68, ¶ 31, 397 P.3d 772 (“[T]he cumulative-
error doctrine does not apply when there is only one error
demonstrated or assumed on appeal.”).

State v. Leech
20160995-CA 	13 	2020 UT App 116
at trial. “Rule 804(b) identifies categories of hearsay that are
admissible when a witness is unavailable to testify at trial.” State
v. Ellis, 2018 UT 2, ¶ 35, 417 P.3d 86. The exception in subsection
(b)(1) applies where former testimony of a now-unavailable
witness
(A) was given as a witness at a trial, hearing, or
lawful 	deposition, 	whether 	given 	during 	the
current proceeding or a different one; and
(B) is now offered against a party who had . . . an
opportunity and similar motive to develop it by
direct, cross-, or redirect examination.
Utah R. Evid. 804(b)(1). Leech does not challenge the district
court’s determination that T.J. was unavailable at the time of trial
or that T.J. provided testimony as a witness at the preliminary
hearing. He argues that the exception under subsection (b)(1)(B)
did not apply because he “did not have an adequate opportunity
and 	similar 	motive 	to 	develop 	the 	testimony 	during 	the
preliminary hearing.”
¶33 	At 	the 	time 	of 	Leech’s 	trial, 	Utah 	courts 	routinely
admitted 	preliminary 	hearing 	testimony 	of 	unavailable
witnesses under rule 804(b)(1). See Ellis, 2018 UT 2, ¶ 37 (noting
that prior precedent allowed preliminary hearing testimony to
be admitted at trial). This practice was based on State v. Brooks,
638 P.2d 537 (Utah 1981), in which the Utah Supreme Court
“announced a per se rule under which preliminary hearing
testimony 	is 	admissible 	so 	long 	as 	the 	requirements 	of
unavailability 	and 	an 	opportunity 	to 	cross-examine 	are
satisfied.” State v. Goins, 2017 UT 61, ¶ 30, 423 P.3d 1236. Brooks
specifically rejected the argument that Leech makes here—that
defense counsel “does not have the same motive and interest to
cross-examine at preliminary hearing as he does at trial.” 638
P.2d at 541. Instead, the court held that “[d]efense counsel’s
motive and interest are the same in either setting; he acts in both

State v. Leech
20160995-CA 	14 	2020 UT App 116
situations in the interest of and motivated by establishing the
innocence of his client.” Id.
¶34 	But in 2017, about one year after Leech’s trial, the Utah
Supreme 	Court 	held 	that 	Brooks 	had 	been 	abrogated 	by 	a
constitutional 	amendment.5 	Specifically, 	the 	court 	held 	that
“subsequent 	changes 	to 	article 	I, 	section 	12 	of 	the 	Utah
Constitution 	undermine 	one 	of 	Brooks’s 	key 	premises—that
‘[d]efense counsel’s motive and interest are the same in either
setting.’” Goins, 2017 UT 61, ¶ 31 (quoting Brooks, 638 P.2d at
541). In 1994, “Utah voters amended article I, section 12 to limit
the function of preliminary examination to determining whether
probable cause exists.” Id. (cleaned up). As a result, “preliminary
hearings—at 	least 	those 	that 	function 	as 	the 	amended
constitution 	envisions—potentially 	limit 	the 	scope 	of 	cross-
examination such that the blanket statement . . . in Brooks no
longer rings true.” Id. ¶ 32. For instance, “[a] defense attorney
who assumes that the magistrate will conduct a preliminary
hearing that comports with article I, section 12 does not have an
incentive to prepare to thoroughly cross-examine on credibility”
because such questioning would go “beyond that necessary to
establish probable cause.” Id. ¶ 34. The court concluded that the
assumption that defense counsel’s motive to cross-examine at a
preliminary hearing is the same as at trial “either no longer
aligns with the reality of practice, or places magistrates in the
uncomfortable 	position 	of 	choosing 	between 	conducting
5. Even though the district court did not have the benefit of the
Goins opinion at the time of trial, it governs our resolution of this
issue on appeal. New rules of criminal procedure announced in
judicial decisions apply to all cases pending on direct review.
State v. Guard, 2015 UT 96, ¶ 30, 371 P.3d 1. Therefore, Leech “is
entitled to the benefit of the Goins analysis,” see State v. Ellis, 2018
UT 2, ¶ 40, 417 P.3d 86, and the State does not argue otherwise.

State v. Leech
20160995-CA 	15 	2020 UT App 116
preliminary hearings in fidelity with article I, section 12 and
permitting the type of examinations that Brooks presupposes.” Id.
¶35 	Although Goins disavowed Brooks’s per se rule that the
same 	motive 	exists 	to 	develop 	testimony 	at 	a 	preliminary
hearing and at trial, it stopped short of replacing it “with another
blanket rule—one that provides that counsel never has the same
motive to develop testimony at a preliminary hearing as at trial.”
Id. 	¶ 	35. 	The 	court 	recognized 	that 	“there 	may 	be 	certain
circumstances where the nature of a witness and her testimony is
such 	that 	defense 	counsel 	will 	ask 	all 	the 	questions 	at 	a
preliminary hearing that she would ask at trial.” Id. ¶ 33.
However, 	the 	court 	“conditioned 	the 	admissibility 	of
preliminary 	hearing 	testimony 	on 	a 	showing 	that 	‘defense
counsel really did possess the same motive and was permitted a
full 	opportunity 	for 	cross-examination 	at 	the 	preliminary
hearing’—a showing that [the court] conceded ‘might prove
rare.’” Ellis, 2018 UT 2, ¶ 39 (quoting Goins, 2017 UT 61, ¶ 36).
¶36 	The State contends that this is one of those rare cases.
It argues that, because Brooks was still good law at the time of
the 	preliminary 	hearing, 	defense 	counsel 	would 	have
been 	operating 	under 	the 	assumption 	that 	T.J.’s 	testimony
would 	be 	admissible 	at 	trial 	if 	he 	were 	later 	deemed
unavailable. 	According 	to 	the 	State, 	defense 	counsel
acknowledged as much at the preliminary hearing when he
justified 	a 	line 	of 	questions 	posed 	to 	another 	witness 	by
explaining 	that 	it 	“may 	be 	our 	only 	opportunity 	to 	cross-
examine this witness” because “people tend to not show up.”
The State further points out that T.J. was cross-examined at
length at the preliminary hearing and that defense counsel “did
not pose a question that was objected to and . . . sustained.”
“Given counsel’s mindset, the law in effect at the time, the lack
of limitations, and the sheer volume of questions,” the State
asserts 	that 	defense 	counsel 	had 	the 	same 	motive 	and
opportunity for cross-examination at the preliminary hearing.

State v. Leech
20160995-CA 	16 	2020 UT App 116
¶37 	But those observations fail to distinguish this case from
Goins. Surely, Goins’s counsel was also aware that preliminary
hearing testimony of an unavailable witness might be admitted
at trial pursuant to Brooks. But despite notice of that potential
risk, the court concluded that “Goins’s counsel did not possess
the same motive to develop testimony at the preliminary hearing
that she would have had at trial.” Goins, 2017 UT 61, ¶ 46. And,
like 	Leech’s 	counsel, 	“Goins’s 	counsel 	cross-examined 	[the
witness at the preliminary hearing] without objection by the
State or apparent restriction by the judge.” Id. ¶ 7. Nonetheless,
the court concluded that counsel’s motive at trial to develop the
testimony and question the witness’s credibility “went beyond a
preliminary hearing’s constitutionally limited purpose.” Id. ¶ 46.
Just as in Goins, “[w]ithout Brooks’s per se rule, we have no basis
to conclude that [Leech’s] counsel’s preliminary hearing motive
to cross-examine was similar to what would have existed at
trial.” See id.
¶38 	In fact, the record in this case supports the opposite
conclusion. In opposing the admission of T.J.’s testimony at
trial, 	defense 	counsel 	explained 	that 	he 	had 	not 	cross-
examined 	T.J. 	at 	the 	preliminary 	hearing 	about 	prior
inconsistent 	statements 	because 	T.J.’s 	credibility 	was 	not
relevant to the probable cause determination. Leech’s counsel
proffered that he had a “binder of all the statements [T.J.]
has made, double sided, . . . and literally not a page goes
by where there is not something different than the previous
time, 	or 	[that] 	contradicts 	a 	later 	statement.” 	Counsel 	then
explained that he did not attempt to impeach T.J. with these
prior inconsistent statements at the preliminary hearing because
“Utah case law is very, very clear that credibility is not an
issue” at preliminary hearings and is reserved for the trier of
fact at trial. But at “an aggravated murder trial where there is
almost zero physical evidence,” he argued, “[c]redibility is the
only issue.”

State v. Leech
20160995-CA 	17 	2020 UT App 116
¶39 	Moreover, defense counsel represented that he had no
opportunity 	to 	review 	the 	State’s 	supplemental 	discovery
produced 	just 	days 	before 	the 	preliminary 	hearing, 	which
included a new interview with T.J. as well as revised transcripts
of 	his 	prior 	statements. 	Nor 	did 	he 	have 	access 	to 	the
supplemental discovery produced in the two years between the
preliminary hearing and the trial. Defense counsel indicated that
he 	would 	have 	impeached 	T.J. 	at 	trial 	with 	inconsistent
statements 	T.J. 	had 	made 	since 	the 	preliminary 	hearing,
information gleaned from a recent interview of another witness,
and contradictory trial testimony—none of which was available
at the time of the preliminary hearing.
¶40 	Whether the defense had a similar motive to develop
prior testimony for purposes of rule 804(b)(1) will often turn on
“the nature of a witness and her testimony.” Goins, 2017 UT 61,
¶ 31. For example, in arguing this issue before the district court,
Leech contrasted T.J.’s preliminary hearing testimony with that
of the medical examiner. Leech suggested that the exception in
rule 804(b)(1) might more readily apply to a witness like the
medical examiner, whose credibility in this case was “a very
small or nonexistent issue” and whose testimony—at least in this
case—was “somewhat ancillary” to the main issues at trial. In
contrast, T.J. was not only a critical eyewitness, but also an
accomplice to each of the crimes. The opportunity to cross-
examine this type of witness at a preliminary hearing will likely
be a poor substitute for confronting the witness at trial, where
the jury can observe his demeanor and assess his credibility
firsthand. Even if the magistrate permitted cross-examination
beyond the scope of the preliminary hearing, the defense may be
disinclined to impeach this kind of witness with inconsistent
statements or otherwise reveal the defense strategy until the
witness takes the stand in front of the jury. And, with such a
witness, new cross-examination material is more likely to arise
between the preliminary hearing and trial, either as part of the
ongoing 	criminal 	investigation 	or 	as 	the 	parties 	interview

State v. Leech
20160995-CA 	18 	2020 UT App 116
witnesses in preparation for trial. Under circumstances such as
these, 	it 	is 	highly 	unlikely 	that 	the 	State 	could 	show 	that
“defense counsel really did possess the same motive and was
permitted 	a 	full 	opportunity 	for 	cross-examination 	at 	the
preliminary hearing.” See id. ¶ 36.
¶41 	In this case, the State did not demonstrate that Leech had
an adequate opportunity and similar motive to cross-examine
T.J. at the preliminary hearing as he would have had at trial. The
district court’s conclusion to the contrary was based solely on
case law that has since been overruled.6 Therefore, the district
court erred in admitting T.J.’s preliminary hearing testimony
under rule 804(b)(1).
II. Harmless Error
¶42 	Although 	the 	admission 	of 	T.J.’s 	preliminary 	hearing
testimony was error, “not every trial error requires reversal.”
State v. Cruz, 2016 UT App 234, ¶ 41, 387 P.3d 618. “Any error,
defect, 	irregularity 	or 	variance 	which 	does 	not 	affect 	the
substantial rights of a party shall be disregarded.” Utah R. Crim.
P. 30(a). Therefore, we must determine whether the erroneous
admission 	of T.J.’s testimony prejudiced 	Leech. See State 	v.
6. Neither Goins nor Ellis addresses the standard by which an
appellate court should review a district court’s determination
that the defense possessed a similar motive to develop prior
testimony within the meaning of rule 804(b)(1). But here, as in
Goins and Ellis, the decision to admit T.J.’s preliminary hearing
testimony was predicated on the since-abrogated holding in
Brooks, which constitutes an error of law. We leave for a future
case the question of the appropriate standard of review where
the district court finds that the exception in rule 804(b)(1) applies
under the legal framework announced in Goins.

State v. Leech
20160995-CA 	19 	2020 UT App 116
McNeil, 2013 UT App 134, ¶ 51, 302 P.3d 844, aff’d, 2016 UT 3, 365
P.3d 699.
¶43 	“Prejudice 	in 	this 	setting 	requires 	a 	showing 	of 	a
reasonable 	likelihood 	that 	the 	decision 	to 	admit 	[T.J.’s]
preliminary hearing testimony altered the jury verdict.”7 See
7. Neither party suggests that the evidentiary error in this case
was of constitutional dimension, such that the State would bear
the burden of persuasion to show that the error was harmless
beyond a reasonable doubt. See State v. Silva, 2019 UT 36, ¶ 22,
456 P.3d 718 (noting that, for preserved constitutional claims,
“the 	State 	bears 	the 	burden 	of 	demonstrating 	that 	the
constitutional error was harmless beyond a reasonable doubt”).
Except in cases of constitutional error, Utah law places the
burden on the defendant to prove that a preserved error is
harmful. See State v. Reece, 2015 UT 45, ¶ 33, 349 P.3d 712 (“[T]he
defendant generally bears the burden to demonstrate that the
error he complains of affected the outcome of his case.”). By
placing the burden of persuasion on the defendant, the showing
of prejudice required to establish that preserved errors are
harmful 	is indistinguishable 	from 	the 	showing 	of 	prejudice
required to establish plain error or ineffective assistance of
counsel for unpreserved errors.
Other states distinguish between the defendant’s burden
to show prejudice resulting from an unpreserved error, and the
State’s burden to show that a preserved error was harmless. See,
e.g., People v. McLaurin, 922 N.E.2d 344, 355 (Ill. 2009) (“[W]here
the 	defendant 	has 	made 	a 	timely 	objection 	and 	properly
preserved an error for review, the reviewing court conducts a
harmless-error analysis in which the State has the burden of
persuasion with respect to prejudice.”); State v. Reed, 737 N.W.2d
572, 583–84 (Minn. 2007) (“Unlike a harmless error analysis, the
defendant generally bears the burden of persuasion with respect
to the third plain error factor.”); State v. Mueller, 88 A.3d 924, 928
(continued…)

State v. Leech
20160995-CA 	20 	2020 UT App 116
(…continued)
(N.H. 	2014) 	(“[W]hereas 	the 	State 	bears 	the 	burden 	under
harmless error analysis, the defendant bears the burden under
the plain error test.”); State v. Nelson, 587 N.W.2d 439, 443 (S.D.
1998) (explaining that, unlike harmless error review, “in which
the State has the burden of proving the error was not prejudicial,
with plain error analysis the defendant bears the burden of
showing the error was prejudicial”); State v. Ray, 216 A.3d 1274,
1278 n.3 (Vt. 2019) (“The State bears the burden of showing that
any preserved error is harmless.”). But in Utah, except in cases of
constitutional error, the State is not required to show that a
preserved error was harmless; the defendant is required to show
that a preserved error was not harmless.
The harmless error doctrine is based on rule 30(a) of the
Utah Rules of Criminal Procedure, which provides, “Any error,
defect, 	irregularity 	or 	variance 	which 	does 	not 	affect 	the
substantial rights of a party shall be disregarded.” The United
States Supreme Court has interpreted the text of an identically
worded federal rule to place the burden on the government to
show that a preserved error did not affect the defendant’s
substantial rights. See United States v. Olano, 507 U.S. 725, 734–35
(1993) 	(explaining 	that 	“a 	court 	of 	appeals 	cannot 	correct
[unpreserved] error unless the defendant shows that the error
was prejudicial” under rule 52(b), but “Rule 52(a) precludes
error correction only if the error ‘does not affect substantial
rights,’” shifting the burden of persuasion to the government
(cleaned up)). We recognize that the Utah Rules of Criminal
Procedure do not contain the equivalent of federal rule 52(b),
and our supreme court has suggested in passing that “[w]hile
the burden of proving an effect on substantial rights under
federal rule 52 falls on either the state or the defendant based on
whether the error is preserved or unpreserved, rule 30(a) of the
Utah Rules of Criminal Procedure is not similarly conditioned
on preservation.” State v. Lovell, 2011 UT 36, ¶ 54, 262 P.3d 803
(continued…)

State v. Leech
20160995-CA 	21 	2020 UT App 116
State v. Ellis, 2018 UT 2, ¶ 41, 417 P.3d 86 (cleaned up). To
determine whether it is reasonably likely that the outcome of the
trial would have been different in the absence of the error, we
must “consider a hypothetical—an alternative universe in which
the trial went off without the error.” Id. ¶ 42. In this case, we
“assess the likely outcome of a trial in which [T.J.’s] preliminary
hearing testimony is eliminated and the jury is left to consider
the remainder of the prosecution’s case.”8 See id.
(…continued)
(distinguishing United States Supreme Court caselaw requiring
a defendant to show that an unpreserved rule 11 violation
affected his substantial rights under rule 52(b) from the showing
of “good cause” required when a defendant moves to withdraw
his plea based on a rule 11 error), abrogated on other grounds by
State v. Guard, 2015 UT 96, 371 P.3d 1. However, the Utah
Supreme Court may wish to squarely address this issue in a
future case. Drawing a similar distinction would encourage
defendants to raise objections in the district court when errors
can be potentially avoided. See Molina-Martinez v. United States,
136 S. Ct. 1338, 1349 (2016) (Alito, J., concurring) (“Rule 52 of the
Federal Rules of Criminal Procedure treats defendants who
preserve their claims much more favorably than those who fail
to register a timely objection.”).
8. As the Utah Supreme Court has recognized, “[t]his may not be
the only way to frame the counterfactual prejudice analysis in a
case like this one.” State v. Ellis, 2018 UT 2, ¶ 42 n.2, 417 P.3d 86.
In arguing prejudice, Leech also imagines scenarios in which T.J.
testified subject to cross-examination at trial or in which the
court granted a continuance to allow the defense to mitigate the
impact of T.J.’s refusal to testify. However, because all efforts to
compel T.J. to testify had failed and because admission of his
preliminary hearing testimony would have been error with or
(continued…)

State v. Leech
20160995-CA 	22 	2020 UT App 116
¶44 	In making this determination, we consider the strength of
the evidence against Leech on each count and the degree to
which the admission of T.J.’s testimony altered the evidentiary
picture. Errors involving the improper admission of evidence are
often harmless where there is other overwhelming evidence in
the record proving the defendant’s guilt. State v. Harvey, 2019 UT
App 108, ¶ 21, 446 P.3d 125. Conversely, we “are more likely to
reverse a jury verdict if the pivotal issue at trial was credibility of
the witnesses and the errors went to that central issue.” State v.
Thompson, 2014 UT App 14, ¶ 73, 318 P.3d 1221.
¶45 	Besides T.J., the middleman was the State’s only witness
with first-hand knowledge of all the events giving rise to each of
the 	six 	charges 	against 	Leech. 	Because 	the 	middleman’s
testimony was central to the State’s case, Leech’s defense focused
heavily on attacking the middleman’s credibility. The defense
argued 	that 	the 	middleman 	is 	“an 	accomplished” 	and
“persistent liar;” “lying is just like breathing” to him. On the
stand, the middleman admitted that he had repeatedly lied to
law enforcement and had “told them so many stories” he could
no longer “remember any of them.” He also admitted to other
crimes of “dishonesty or false statements.”
¶46 	The 	defense 	argued 	that 	the 	middleman 	had 	come
forward only to protect himself after he was arrested on an
unrelated charge while he was “on the run from the FBI and
federal drug distribution charges where he’s agreed to cooperate
with the FBI but didn’t.” The middleman confirmed that, before
the events at issue in this case, the FBI had agreed not to pursue
charges against him in exchange for his cooperation against a
(…continued)
without a continuance, we assess prejudice by considering the
likely outcome of a trial in which T.J.’s preliminary hearing
testimony was properly excluded.

State v. Leech
20160995-CA 	23 	2020 UT App 116
drug cartel. But rather than fulfilling his end of the bargain, he
disappeared and continued selling drugs. He also confirmed
that, in exchange for his truthful testimony in this case, the State
would recommend that he serve no prison time. The defense
told the jury that the middleman would do “whatever it takes”
to avoid going to federal prison where he would be “labeled a
snitch against the cartels” and was willing to “plead guilty to
lying to the police about what happened in this case in exchange
for his testimony as part of a deal.”
¶47 	The defense also argued that it was the middleman who
had a motive to kill the victim for disappearing with the cash,
the rental car, and the drugs stashed in its trunk. The defense
maintained that the evidence established only two facts beyond
a reasonable doubt: “[The victim] is dead and [the middleman]
shot 	him.” 	According 	to 	the 	defense 	theory, 	the 	evidence
showed that the middleman shot the victim not to save his own
life, but because he was angry and wanted to send a message
that “[n]obody steals from me.” The middleman admitted that
he had served time in federal prison on racketeering charges and
had been a high-ranking member of a white supremacist prison
gang. The defense argued that the middleman was “no follower”
and took “orders from no one, especially not somebody like
Chris Leech.”
¶48 	By convicting Leech on all charges, the jury presumably
rejected these defense arguments and believed at least some
portion of the middleman’s testimony. But the likelihood of the
jury reaching the same conclusion absent the error varies count
by count, depending on the degree to which those counts were
corroborated by evidence other than T.J.’s testimony. Looking at
the complete evidentiary picture, there is a reasonable likelihood
of a different result only where the jury was required to credit
the middleman’s uncorroborated testimony in order to convict.
As explained below, Leech has demonstrated prejudice with

State v. Leech
20160995-CA 	24 	2020 UT App 116
respect to the obstruction of justice count, but not with respect to
the kidnapping, robbery, and murder counts.
A. 	Aggravated Kidnapping and Aggravated Robbery Counts
¶49 	With regard to the two aggravated kidnapping and two
aggravated robbery counts, there is no reasonable likelihood that
the 	jury 	would 	have 	reached 	a 	different 	verdict 	if 	T.J.’s
testimony 	had 	been 	excluded. 	Leech 	was 	charged 	with
aggravated kidnapping of both the middleman and the victim.
Under the facts of this case,9 Leech was guilty of aggravated
kidnapping if the jury found beyond a reasonable doubt that he
used or threatened to use a dangerous weapon in the course of
committing an unlawful detention or kidnapping.10 See Utah
Code Ann. § 76-5-302(1) (LexisNexis Supp. 2019). Leech was
similarly charged with aggravated robbery of both men based on
9. Both the aggravated kidnapping and the aggravated robbery
statutes include various aggravating factors, only one of which
must be proven beyond a reasonable doubt. We do not list all the
aggravators that may be applicable to the facts of this case
because the use of a dangerous weapon aggravator is most
readily satisfied.
10. To establish the underlying crime of unlawful detention, the
State was required to prove that Leech, as a party to the offense,
“intentionally 	or 	knowingly, 	without 	authority 	of 	law, 	and
against the will of the victim, detain[ed] or restrain[ed] the
victim under circumstances not constituting” kidnapping. See
Utah Code Ann. § 76-5-304(1) (LexisNexis 2014). As relevant to
the 	facts 	of 	this 	case, 	the 	alternative 	underlying 	crime 	of
kidnapping required proof that the detention or restraint was for
“any substantial period of time” or “in circumstances exposing
the victim to risk of bodily injury.” See Utah Code Ann. § 76-5-
301(1)(a)–(b) (LexisNexis Supp. 2019).

State v. Leech
20160995-CA 	25 	2020 UT App 116
emptying their pockets before putting them in T.J.’s truck. Leech
was guilty of aggravated robbery if the jury found beyond a
reasonable doubt that he used or threatened to use a dangerous
weapon in the course of committing a robbery.11 See Utah Code
Ann. § 76-6-302(1)(a)–(b) (LexisNexis 2017).
¶50 	The admissible evidence supporting these counts was not
limited to the middleman’s testimony. Instead, the acts satisfying
the elements of all four counts took place in front of three
additional 	witnesses, 	each 	of 	whom 	testified 	at 	trial 	and
corroborated the middleman’s account. One witness testified to
the events that took place at the house; two others testified to the
events that took place at the apartment. All three witnesses
confirmed that Leech was the “leader of the group,” “in control
of what was going on,” and “the one who told everybody what
to do.”
¶51 	One witness confirmed that the middleman was being
held against his will in the house’s garage and, when he tried to
leave, Leech put a gun to his head, shoved him into the garage,
and 	told 	him 	to 	“[g]et 	back 	in 	the 	room.” 	The 	two 	other
witnesses testified that, when the victim finally arrived at the
apartment, Leech pointed his gun at the middleman and the
11. To establish the underlying crime of robbery, the State was
required 	to 	prove 	that 	Leech, 	as 	a 	party 	to 	the 	offense,
unlawfully and intentionally took or attempted “to take personal
property 	in 	the 	possession 	of 	another 	from 	his 	person, 	or
immediate presence, against his will, by means of force or fear,
and with a purpose or intent to deprive the person permanently
or 	temporarily 	of 	the 	personal 	property” 	or 	that 	Leech
intentionally or knowingly used “force or fear of immediate
force against another in the course of committing a theft or
wrongful appropriation.” See Utah Code Ann. § 76-6-301(1)
(LexisNexis 2017).

State v. Leech
20160995-CA 	26 	2020 UT App 116
victim and ordered them to get down on the ground. Both
witnesses 	confirmed 	that, 	at 	Leech’s direction, 	T.J. 	tied 	the
victim’s and the middleman’s hands behind their backs with
speaker wire and that Leech took everything out of their pockets,
including their cell phones and their wallets. According to both
witnesses, Leech zipped up the hooded sweatshirts the two men
were wearing, pulled the hoods over their heads, cut a hole in
the hoods, and tied the hoods over their faces with speaker wire.
Leech then ordered the middleman and the victim to stand up
and escorted them outside to T.J.’s truck.
¶52 	The testimony of those three witnesses independently
supported 	Leech’s 	aggravated 	kidnapping 	and 	aggravated
robbery convictions. Their testimony was consistent not only
with the middleman’s account of what happened at the house
and the apartment, but also with the physical evidence. When
police recovered the victim’s body, his hands appeared to have
been bound with speaker wire and a hole had been cut in the
hood of his sweatshirt.
¶53 	“We will not overturn a jury verdict for the admission of
improper evidence if the admission of the evidence did not
reasonably affect the likelihood of a different verdict.” State v.
Landon, 2014 UT App 91, ¶ 3, 326 P.3d 101 (cleaned up). Based on
the 	overwhelming 	evidence 	supporting 	the 	aggravated
kidnapping and aggravated robbery charges, Leech has not
demonstrated 	a 	reasonable 	likelihood 	that 	he 	would 	have
attained a more favorable result at trial had T.J.’s prior testimony
not been admitted.
B. 	Aggravated Murder
¶54 	Similarly, there is no reasonable likelihood that the jury
would have acquitted Leech of aggravated murder if 	T.J.’s
testimony had been excluded. Leech argues that T.J. “was a
critical State witness whose testimony ‘provided key pieces of
evidence that the jury likely credited’ and was necessary for the

State v. Leech
20160995-CA 	27 	2020 UT App 116
State to establish Leech’s culpability.” (Quoting State v. Ellis,
2018 UT 2, ¶ 43, 417 P.3d 86.) To be sure, no evidence besides
T.J.’s testimony corroborated the middleman’s story that it was
Leech who fired the first bullet into the victim’s torso or that
Leech then ordered the middleman, at gunpoint, to “finish him.”
As the defense pointed out at trial, the middleman had an
interest in deflecting responsibility by claiming that Leech had
forced him to shoot the victim. We agree with Leech that,
without T.J.’s corroborating testimony, the jury may have had a
reasonable doubt as to the veracity of the middleman’s self-
serving 	testimony. 	And, 	even 	if 	the 	jury 	believed 	that 	the
middleman shot the victim to save his own life, the jury had only
his word that it was Leech, and not one of the other armed men
on the scene, who directed the murder.
¶55 	But in attempting to establish prejudice, Leech does not
grapple with the fact that he was charged as a party to the offense
of aggravated murder. To prove his guilt, the State was not
required to prove that Leech personally committed the offense.
Instead, the State was required to prove only that (1) the offense
had been committed; (2) Leech had intentionally, knowingly, or
recklessly 	solicited, 	requested, 	commanded, 	encouraged, 	or
intentionally aided the commission of the offense; and (3) Leech
acted with the mental state required for aggravated murder. See
Utah Code Ann. § 76-2-202 (LexisNexis 2017).
¶56 	As to the first element, Leech does not dispute that
someone 	committed 	the 	offense. 	The 	physical 	evidence
recovered at the scene confirmed that the murder took place in a
location and in a manner consistent with what the middleman
described. Specifically, it showed that the victim had been bound
with speaker wire, taken to a remote location in the mountains
near an embankment, and shot once in the torso and once in the
head. Indeed, at trial, Leech conceded there were “two things in
this case that we know beyond a reasonable doubt”—that the
victim is dead and that the middleman shot him. Leech also does

State v. Leech
20160995-CA 	28 	2020 UT App 116
not challenge the jury’s finding that the murder was committed
under aggravating circumstances.12 Instead, he argues that there
is a reasonable likelihood that the jury would not have believed
the middleman’s testimony about Leech’s role in the murder if
T.J.’s testimony had been excluded.
¶57 	But for purposes of party liability, the State was not
required to prove that Leech personally committed or directed
the murder. To establish the second and third elements of party
liability, 	it 	was 	enough 	to 	prove 	that 	Leech 	aided 	the
commission of the offense with intent to cause the victim’s death
or knowing the victim’s death was reasonably certain to result.
Accordingly, Leech’s guilt did not turn on whether his actions at
the 	scene 	of 	the 	murder 	were 	exactly 	as 	the 	middleman
described. Even if someone else had been the principal actor at
the time of the murder, it would not have relieved Leech of
criminal responsibility so long as the jury found that Leech was
liable as a party to the offense. In other words, Leech’s guilt did
not depend on the jury believing that Leech fired the first shot or
that Leech forced the middleman to shoot the victim.
12. The jury found multiple aggravating factors, including that
the homicide was committed “incident to an act, scheme, course
of 	conduct, 	or 	criminal 	episode 	during 	which 	the 	actor
committed 	or 	attempted 	to 	commit 	aggravated 	robbery,
robbery,” “aggravated kidnapping, or kidnapping.” See Utah
Code Ann. § 76-5-202(1)(d) (LexisNexis 2017). The evidence
regarding the aggravated kidnapping and aggravated robbery
counts 	was 	overwhelming, 	see 	supra 	¶¶ 	49–52, 	as 	was 	the
evidence that the homicide occurred during the same criminal
episode. Therefore, there is no reasonable likelihood that the jury
would have reached a different verdict with respect to the
aggravation requirement.

State v. Leech
20160995-CA 	29 	2020 UT App 116
¶58 	Without T.J.’s corroborating testimony, the jury might
have doubted the middleman’s description of what happened on
the 	mountain. 	But 	even 	if 	the 	jury 	had 	disregarded 	this
uncorroborated 	testimony 	entirely, 	plentiful 	evidence
establishing Leech’s guilt as a party to the murder was admitted
through the testimony of other witnesses. At the house, Leech
pulled 	a 	gun 	on 	the 	middleman, 	held 	him 	captive, 	and
announced his intention to shoot both the middleman and the
victim when he found him. When the victim returned with the
drugs and the rental car, Leech declared that it was “too late”
and that the middleman and the victim must “pay for what they
did.” In front of two other witnesses, Leech solicited the help of
two cohorts, both of whom were also armed, to rob and kidnap
the middleman and the victim. Leech incapacitated the two men
by ensuring that they were bound and blindfolded, their pockets
emptied, and their shoes removed. Then he ordered T.J. and
Juice to help him take the men into the mountains to be taught a
lesson.
¶59 	Even if the jury harbored reasonable doubts about some
of the details of what happened after that point, the second and
third elements of party liability had already been established. As
to the second element, the overwhelming evidence established
that Leech 	intentionally, knowingly, or recklessly “solicited,
requested, commanded, encouraged, or intentionally aided the
commission of the offense” of aggravated murder when he held
the middleman and the victim at gunpoint and enlisted the help
of T.J. and Juice to incapacitate the two men, remove any
identification from their pockets, and force them into T.J.’s truck
to be taken to a remote location.
¶60 	As to the third element, the evidence overwhelmingly
established 	that 	Leech 	had 	the 	mental 	state 	required 	for
aggravated 	murder 	because 	he 	intentionally 	or 	knowingly
caused the victim’s death. See Utah Code Ann. § 76-5-202(1)
(LexisNexis Supp. 2019). Intent is rarely subject to direct proof

State v. Leech
20160995-CA 	30 	2020 UT App 116
and must generally be inferred from the actions of the defendant
and the surrounding circumstances. State v. Florez, 2020 UT App
76, ¶ 18, 465 P.3d 307. But, in this case, the State offered evidence
that 	Leech 	actually 	voiced 	his 	intention 	to 	shoot 	both 	the
middleman 	and 	the 	victim. 	Other 	witnesses 	who 	observed
Leech’s behavior similarly understood that he intended for the
two men to die. Even when Leech tried to reassure Juice’s wife
that he was planning only to make the hapless drug dealers walk
barefoot down the mountain, she understood Leech’s intentions
to be murderous and did not believe that anyone other than
Leech was “coming back.”
¶61 	At the very least, the overwhelming evidence established
that Leech knowingly caused the victim’s death because he
was aware that his conduct was reasonably certain to cause
that result. See Utah Code Ann. § 76-2-103(2) (LexisNexis 2017).
In 	the 	presence 	of 	multiple 	witnesses, 	Leech 	recruited 	two
other armed men to help him, incapacitated the middleman
and the victim, and directed that the bound and blindfolded
men be taken off-site to pay for what they did. Even if the
jury had a reasonable doubt as to what exactly happened after
the 	men 	left 	the 	apartment, 	the 	overwhelming 	evidence
established that Leech initiated the events leading to the murder
knowing that the victim’s death was at least reasonably certain
to result.
¶62 	Because Leech’s conduct before leaving the apartment
established the second and third elements of party liability, his
conviction 	for 	aggravated 	murder 	did 	not 	depend 	on 	the
veracity of the middleman’s account of the murder itself. The
only remaining element—that the crime Leech set in motion was
thereafter committed—was not disputed at trial. Accordingly,
there is no reasonable likelihood that the erroneous admission of
T.J.’s corroborating testimony changed the result, making the
error harmless as to Leech’s aggravated murder conviction.

State v. Leech
20160995-CA 	31 	2020 UT App 116
C. 	Obstruction of Justice
¶63 	In contrast, the obstruction of justice charge could not be
proven without crediting the middleman’s testimony. And there
is a reasonable likelihood that the jury would not have believed
the 	middleman 	without 	the 	corroboration 	T.J.’s 	testimony
provided. To convict Leech of obstruction of justice, the jury was
required to find that Leech “altered, destroyed, concealed or
removed any item or other thing”—or intentionally, knowingly,
or recklessly “solicited, requested, commanded, encouraged, or
intentionally aided another” to do so—with the specific intent to
“hinder, 	delay, 	or 	prevent 	the 	investigation, 	apprehension,
prosecution, conviction, or punishment of any person” for the
crimes charged. See Utah Code Ann. § 76-8-306 (LexisNexis 2017)
(obstruction of justice); see also id. § 76-5-202 (party liability).
¶64 	The State’s case that Leech had obstructed justice relied
heavily on T.J.’s testimony. T.J. testified that Leech took T.J.’s
gun and said he would “get rid of” it, that Leech told T.J. to get
rid 	of 	his 	clothes, 	and 	that 	Leech 	told 	Juice 	to 	burn 	the
middleman’s clothes and T.J.’s boots. If that testimony had been
properly excluded, the only remaining evidence relating to the
obstruction counts would have been the middleman’s testimony.
T.J.’s improperly admitted testimony significantly altered the
entire evidentiary picture by substantiating the middleman’s
account. 	Without 	the 	corroboration 	offered 	by 	T.J.’s 	prior
testimony, there is a reasonable probability that the middleman’s
testimony alone would not have convinced the jury of Leech’s
guilt beyond a reasonable doubt. The likelihood of such a result
is sufficient to undermine our confidence in the verdict with
respect to the obstruction count.
¶65 	The State contends that Leech cannot show prejudice
because T.J.’s testimony was merely cumulative, noting that all
the facts necessary to support the jury’s verdict can be gleaned
from 	the 	record 	even 	if 	T.J.’s 	testimony 	is 	excluded. 	This

State v. Leech
20160995-CA 	32 	2020 UT App 116
argument fails to recognize the important distinction between
analyzing the sufficiency of the evidence supporting a conviction
and assessing prejudice stemming from the improper admission
of evidence. See United States v. Lane, 474 U.S. 438, 450 n.13 (1986)
(agreeing “that the harmless-error inquiry is entirely distinct
from a sufficiency-of-the-evidence inquiry”).
¶66 	In the counterfactual scenario where T.J.’s testimony had
been 	properly 	excluded, 	we 	agree 	with 	the 	State 	that 	the
remaining evidence would have been sufficient to prove Leech’s
guilt beyond a reasonable doubt. The middleman testified that
Leech said that he would “take care of the guns”; instructed T.J.
to detail his truck; and told the middleman to change out of his
clothes, leave them outside the bathroom, and keep looking for
the 	victim 	as 	if 	“nothing 	happened.” 	That 	testimony 	alone
would have been sufficient to convict Leech of obstruction of
justice.
¶67 	But the prejudice analysis does not depend on whether
the properly admitted evidence would have been sufficient to
sustain 	the 	conviction; 	rather, 	we 	consider 	whether, 	in 	the
absence of the improperly admitted evidence, the likelihood of a
different 	outcome 	is 	sufficiently 	high 	to 	undermine 	our
confidence in the verdict. See State v. Knight, 734 P.2d 913, 920
(Utah 1987). In this case, the middleman’s testimony standing
alone, if believed, would have been sufficient to support the
jury’s verdict on the obstruction of justice count, and Leech does
not claim otherwise. But if the middleman’s story had not been
corroborated by T.J., the defense could have more effectively
exploited 	the 	middleman’s 	lack 	of 	credibility 	and 	possible
motive in covering up his own actions. If the only account of
what had happened after the murder had been provided by a
person who admittedly shot the victim, it is reasonably likely
that 	the 	jury 	would 	have 	had 	reasonable 	doubt 	regarding
Leech’s guilt on the obstruction of justice count.

State v. Leech
20160995-CA 	33 	2020 UT App 116
¶68 	The State resists this conclusion by arguing that, because
the evidence showed that Leech “was in charge leading up to the
murder,” it would “come as no surprise” that he “would retain
his position afterward and direct the cover up.” To be sure, the
testimony of the other witnesses paints a picture of Leech calling
the shots from the moment he arrived at the house up until he
left the apartment in T.J.’s truck. This evidence is consistent with
the 	middleman’s 	testimony 	that 	Leech 	continued 	to 	assert
control and ultimately directed the subsequent obstruction of
justice.
¶69 	But unlike the murder, which indisputably happened,
without T.J.’s testimony, the jury had only the middleman’s
word 	that 	any 	obstruction 	of 	justice 	occurred. 	The 	State
presented no other admissible evidence to prove that anyone
had “altered, destroyed, concealed, or removed any item or
other thing,” let alone that Leech had directed or otherwise
participated in that offense with the specific intent to obstruct
justice. While the jury might have credited the middleman’s
story even without T.J.’s corroborating testimony, the likelihood
that T.J.’s testimony tipped the scales is sufficient to undermine
our confidence in the verdict on the obstruction of justice count.
CONCLUSION
¶70 	We conclude that T.J.’s prior testimony was inadmissible
hearsay, and that the exception set forth in rule 804(b)(1) of the
Utah Rules of Evidence is inapplicable because the defense did
not have the same opportunity and motive to cross-examine T.J.
at the preliminary hearing as it would have had at trial. The
district court therefore erred in admitting that testimony. This
error did not prejudice Leech’s defense with respect to the
kidnapping, 	robbery, 	and 	murder 	counts, 	but 	there 	is 	a
reasonable likelihood that Leech would not have been found
guilty of obstruction of justice absent the error.

State v. Leech
20160995-CA 	34 	2020 UT App 116
¶71 	Accordingly, we affirm Leech’s convictions for two counts
of aggravated kidnapping, two counts of aggravated robbery,
and 	one 	count 	of 	aggravated 	murder. 	We 	vacate 	Leech’s
conviction for obstruction of justice and remand to the district
court for further proceedings.