State v. Ross

2007 UT 89
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, No. 20041073
Plaintiff and Appellee,
v.
F I L E D
Trovon Donta Ross,
Defendant and Appellant. November 2, 2007
---
Second District, Farmington
The Honorable Rodney S. Page
No. 031701069
Attorneys: Mark L. Shurtleff, Att’y Gen., Matthew D. Bates,
Asst. Att’y Gen., Salt Lake City, Steven V. Major,
William McGuire, Farmington, for plaintiff
Elizabeth Hunt, Salt Lake City, for defendant
---
NEHRING, Justice:
¶1 Early on the morning of June 30, 2003, Trovon Ross
arrived at the front door of the home of his ex-girlfriend, Annie
Christensen. He carried a loaded gun. Mr. Ross entered the
home, and after an exchange of words with his ex-girlfriend and
her current boyfriend, James May, Mr. Ross forced Ms. Christensen
into a bedroom where he shot her three times, killing her.
¶2 Mr. May made an attempt to flee in an automobile parked
in the garage. But after being intercepted by Mr. Ross, Mr. May
exited the car and took flight on foot. Mr. Ross chased him out
of the garage and down the street, firing six shots at him. One
shot struck Mr. May, wounding him.
¶3 Mr. Ross was apprehended following a chase. He was
charged and convicted of aggravated murder and attempted
aggravated murder. At Mr. Ross’s trial, the sole issue in
contention was whether he should be convicted of murder or
aggravated murder. Mr. Ross now challenges his conviction on the
basis of four claims of error, only the first of which was
preserved at the trial court level. First, Mr. Ross alleges he
was convicted under an unconstitutional statute--Utah Code

No. 20041073 2
section 76-5-202(1)(b) (2003). Second, Mr. Ross contends that
his attempted aggravated murder conviction should merge with his
aggravated murder conviction. Third, Mr. Ross asserts that the
impaneling of an anonymous jury was unfairly prejudicial. And
fourth, Mr. Ross believes the State committed prosecutorial
misconduct during closing arguments, which affected the outcome
of the case, requiring a new trial. We reject Mr. Ross’s first,
third, and fourth claims; however, the majority finds that the
aggravated murder and attempted aggravated murder charges should
merge and that the attempted aggravated murder conviction should
be vacated.
BACKGROUND
¶4 Mr. Ross knocked on Ms. Christensen’s door in Clinton,
Utah, at approximately 6:10 a.m. on June 30, 2003.
Ms. Christensen answered the door and let him in the house.
Mr. Ross waited in the front room while Ms. Christensen went to
her bedroom and returned with her boyfriend, Mr. May.
¶5 Mr. Ross began to interrogate Ms. Christensen about her
relationship with Mr. May, asking intimate questions about their
sexual activity. When Ms. Christensen did not respond to
Mr. Ross’s questions, he pulled a gun from his waistline and put
the questions to Ms. Christensen again. Ms. Christensen
repeatedly asked Mr. Ross to leave, but he would not do so until
she answered his questions.
¶6 Mr. Ross then asked Mr. May, “Do you have any family
here?” Mr. May did not answer, and Mr. Ross responded, “I can’t
let her hurt you like she hurt me.” Mr. Ross then grabbed
Ms. Christensen, pointed the gun at her, and pushed her past
Mr. May toward the bedroom. Mr. May believed Mr. Ross was going
to kill both Ms. Christensen and him and, apparently in an effort
to dissuade Mr. Ross from following through with his plan, told
Mr. Ross that the Air Force would be looking for him.
Unimpressed, Mr. Ross pushed past Mr. May and took
Ms. Christensen to the bedroom.
¶7 Mr. May fled to the garage and entered his car. Soon
thereafter, he heard a gunshot, a pause, then two more gunshots.
Mr. May’s car was equipped with an ignition interlock device,
requiring him to blow into a breathalyzer to demonstrate that he
was not intoxicated before his car would start. He blew into the
breathalyzer, but because his breathing was “too erratic,” the
breathalyzer would not permit ignition.
¶8 Mr. Ross then appeared in the doorway to the garage.
Mr. May threw his keys out of the car, fled the garage, and began

3 No. 20041073
to run down the street. Mr. Ross followed, firing six shots.
The second shot went through Mr. May’s right arm and into his
chest, lodging itself under the skin in front of his ribs.
¶9 Still able to run despite his wound, Mr. May ran from
house to house searching for assistance. He finally managed to
stop a car in the street, and the driver called the police. An
off-duty officer arrived, and Mr. May told him that
Ms. Christensen had been shot and directed the officer to her
house.
¶10 At least two of Ms. Christensen’s neighbors heard the
gunfire and saw a white van back quickly out of her driveway,
hitting a mailbox before speeding off. The neighbors called 911
and reported the shots and the van’s description. Clinton City
police arrived at Ms. Christensen’s house within minutes of the
shooting and found her dead on the floor of her bedroom. An
examination of her body revealed three gunshot wounds: one to
the back right side of the head, one to the neck, and one to the
abdomen.
¶11 Meanwhile, at 6:20 that morning, Mr. Ross called Steven
Christensen, Ms. Christensen’s father. Mr. Ross informed
Mr. Christensen that he had just killed his daughter and was “on
[his] way to [Mr. Christensen’s] home to finish the job.”
¶12 Several Clearfield City police officers heard the
broadcast of the van’s description and headed toward the area of
the shooting. They passed the van en route, turned around, and
activated their lights and sirens, but Mr. Ross would not pull
over. The police eventually cornered Mr. Ross in a cul-de-sac of
a residential area and, after a brief foot chase, arrested him.
¶13 The State charged Mr. Ross with aggravated murder,
attempted aggravated murder, and failure to obey an officer’s
signal to stop. Mr. Ross was tried before a jury in November
2004. At trial, Mr. Ross did not contest his participation in
the crimes, but rather limited his efforts to persuading the jury
that he was not guilty of aggravated murder. Mr. Ross contended
that the killing of Ms. Christensen and the shooting of Mr. May
were not “committed incident to one act, scheme, course of
conduct, or criminal episode” under Utah Code section 76-5-
202(1)(b) and thus did not amount to aggravated murder.
¶14 Concerned that the case might “generate substantial
public interest and media attention,” the trial court impaneled
an anonymous jury “to protect the identity and privacy of the
jurors[] and to protect jurors, witnesses, and parties from
unnecessary commotion, confusion, or influence.” The court

No. 20041073 4
sought to preserve the jurors’ anonymity by assigning each of
them a number by which they were identified during the trial.
The court informed jurors on more than one occasion--both
verbally in the trial court proceedings and on the jury
questionnaire that each prospective juror completed--that the use
of numbers was to protect their privacy and to encourage jurors’
candor during the voir dire process. With one exception, each
prospective juror was addressed by both name and number during
in-chamber interviews conducted during the course of jury
selection. In four different interviews, defense counsel
referred to prospective jurors by name, and the State did so
three times.
¶15 After a three-day trial, the jury convicted Mr. Ross of
aggravated murder and all other charges. Mr. Ross waived his
right to a jury in the penalty phase, and the State recommended
he serve life without parole for the aggravated murder
conviction. The court agreed and sentenced him to concurrent
prison terms of life without parole, five years to life, and zero
to five years.
¶16 Mr. Ross appealed.
STANDARD OF REVIEW
¶17 Mr. Ross preserved only the first of his four issues
raised on appeal. As Mr. Ross’s constitutional claim was
preserved, we review that issue for correctness. Wood v. Univ.
of Utah Med. Ctr., 2002 UT 134, ¶ 7, 67 P.3d 436. “The issue of
whether a statute is constitutional is a question of law, which
we review for correctness, giving no deference to the trial
court.” Id. (internal quotation marks and citation omitted).
Mr. Ross’s other three claims were unpreserved, and we review
them for plain error. See State v. Pinder, 2005 UT 15, ¶ 45, 114
P.3d 551; State v. Nelson-Waggoner, 2004 UT 29, ¶ 16, 94 P.3d
186. To prevail under plain error review, a defendant must
demonstrate that “‘(i) an error exists; (ii) the error should
have been obvious to the trial court; and (iii) the error is
harmful, i.e., absent the error, there is a reasonable likelihood
of a more favorable outcome.’” State v. Lee, 2006 UT 5, ¶ 26,
128 P.3d 1179 (quoting State v. Hassan, 2004 UT 99, ¶ 10, 108
P.3d 695).
ANALYSIS
¶18 With our standard of review in hand, we turn to
assessing the merits of Mr. Ross’s four issues: (1) whether the
subsection of the Utah death penalty statute, under which

5 No. 20041073
Mr. Ross stands convicted, is unconstitutionally vague;
(2) whether Mr. Ross’s aggravated murder conviction and attempted
aggravated murder conviction should merge; (3) whether the
impaneling of an anonymous jury prejudiced the jury against
Mr. Ross; and (4) whether the alleged prosecutorial misconduct
requires a new trial.
¶19 This opinion contains the majority as to issues (1),
(3), and (4) and the dissent as to issue (2). The majority as to
issue (2) is contained in the separate opinion of Chief Justice
Durham, joined by Justice Durrant and Justice Parrish. The
dissenting view in section II of this opinion is that of Justice
Wilkins and me.
I. UTAH CODE SECTION 76-5-202(1)(b) IS NOT UNCONSTITUTIONALLY
VAGUE
¶20 We first address whether Utah Code section 76-5-
202(1)(b) is unconstitutionally vague as applied to Mr. Ross.
Mr. Ross insists that the vagueness of the aggravated murder
statute does not measure up to the guarantees of due process of
law and freedom from the imposition of cruel and unusual
punishment enshrined in both the United States Constitution and
the Utah Constitution. First, we hold that because Mr. Ross was
not sentenced to death, he lacks standing to assert that the
statute’s vagueness exposed him to cruel and unusual punishment
under the Eighth Amendment to the United States Constitution.
Next, we reach the merits of Mr. Ross’s constitutional due
process assaults on section 76-5-202(1)(b), but we find that the
statute survives them because it is not unconstitutionally vague
as applied to Mr. Ross’s conduct.
¶21 Section 76-5-202(1)(b) provides in pertinent part that
[c]riminal homicide constitutes aggravated
murder if the actor intentionally or
knowingly causes the death of another
. . . [where] the homicide was committed
incident to one act, scheme, course of
conduct, or criminal episode during which two
or more persons were killed, or during which
the actor attempted to kill one or more
persons in addition to the victim who was
killed.
Utah Code Ann. § 76-5-202(1)(b) (2003). According to Mr. Ross,
the vulnerable language of the statutory text is the phrase “act,
scheme, course of conduct, or criminal episode.” Mr. Ross would

No. 20041073 6
have us conclude that this phrase is so vague that the
Constitution renders it void.
¶22 We do not reach the merits of Mr. Ross’s Eighth
Amendment vagueness challenge because he does not have standing
to bring his claim. Like the Fourteenth Amendment, the Eighth
Amendment’s Cruel and Unusual Punishment Clause prohibits vague
statutes, but in this setting the Eighth Amendment will intercede
only on behalf of defendants who face the death penalty.
¶23 Mr. Ross takes issue with this proposition. His
objection, despite being off the mark, gives us cause to note the
presence of two separate strands of Eighth Amendment
jurisprudence. The first, and likely more familiar, is the
proportionality strand. These cases explore the relationship
between offenses and the severity of their resulting punishments.
See generally Ewing v. California, 538 U.S. 11, 20-28 (2003)
(reviewing Supreme Court jurisprudence on the proportionality
requirement of the Eighth Amendment). The second strand of cases
looks to the Eighth Amendment as a basis upon which to insist
that criteria used by sentencers to impose the death penalty be
employed in a discriminating, principled way. The preeminent
case in this strand is Maynard v. Cartwright, 486 U.S. 356, 362
(1988). It is to this component of the Eighth Amendment doctrine
that Mr. Ross directs us when he challenges the constitutionality
of section 76-5-202(1)(b).
¶24 The Eighth Amendment requires that statutory
aggravators “channel the sentencer’s discretion by clear and
objective standards that provide specific and detailed guidance
and that make rationally reviewable the process for imposing a
sentence of death.” Godfrey v. Georgia, 446 U.S. 420, 428 (1980)
(internal quotation marks and citations omitted). Yet, “[t]o
meet the standing requirements of Article III, ‘[a] plaintiff
must allege personal injury fairly traceable to the defendant’s
allegedly unlawful conduct and likely to be redressed by the
requested relief.’” Houston v. Roe, 177 F.3d 901, 907 (9th Cir.
1999) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).
Further, “[t]he injury must be distinct and palpable not merely
speculative, and the harm must be imminent and not hypothetical.”
Id. (citing Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). In
a case where the government does not seek the death penalty or
where the defendant is not sentenced to death, there can be no
actual or threatened injury caused by vagueness in the death
penalty statute that is sufficient to justify standing. Id.
¶25 Our approach to Eighth Amendment challenges to Utah’s
death penalty statute is in harmony with federal jurisprudence on
the topic as we, too, have denied standing to a defendant not

7 No. 20041073
sentenced to death who, under the Eighth Amendment, sought to
challenge the vagueness of the aggravating circumstances set out
in Utah’s death penalty statute. State v. Tuttle, 780 P.2d 1203,
1215 (Utah 1989). Mr. Ross was sentenced to life in prison
without the possibility of parole. And like the defendant,
Mr. Tuttle, Mr. Ross lacks standing to challenge the statute
under the Eighth Amendment.
¶26 Mr. Ross appears to believe that our conclusion that
Mr. Tuttle did not have standing because he was not sentenced to
death was wrong because the United States Supreme Court has made
the Eighth Amendment available to challenge sentences less than
death. The Supreme Court cases cited by Mr. Ross to make this
point are, however, cases culled from the proportionality strand
of Eighth Amendment jurisprudence that have nothing to do with
the interpretation and application of death penalty statutes.
¶27 While standing does not foreclose Mr. Ross’s remaining
due process claims, we find none to be compelling. In order to
establish that statutes are so vague that they violate due
process, “a defendant must demonstrate either (1) that the
statutes do not provide ‘the kind of notice that enables ordinary
people to understand what conduct [is prohibited],’ or (2) that
the statutes ‘encourage arbitrary and discriminatory
enforcement.’” State v. MacGuire, 2004 UT 4, ¶ 13, 84 P.3d 1171
(alteration in original) (quoting State v. Honie, 2002 UT 4,
¶ 31, 57 P.3d 977); see also Kolender v. Lawson, 461 U.S. 352,
357 (1983). And where, as here, a defendant’s claim does not
concern an alleged infringement of a First Amendment right, the
defendant must first show that the statute is vague as applied to
his conduct, before he can attempt to show that the statute is
vague in all of its applications. State v. Green, 2004 UT 76,
¶¶ 44, 45 n.15, 99 P.3d 820 (citing Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 494-95 (1982)). This means
that a defendant may not complain of the vagueness of the law as
applied to others if its language affords the defendant adequate
notice that his conduct was proscribed. Id.
¶28 First, we find that the language of section 76-5-
202(1)(b) is sufficiently clear to give Mr. Ross notice that the
behavior he engaged in was prohibited. The statute provides that
a murder charge may be increased to aggravated murder if it is
committed “incident to one act, scheme, course of conduct, or
criminal episode” where another murder is completed or attempted.
Utah Code Ann. § 76-5-202(1)(b). Although we do not concede that
the statute requires additional clarification to impart
sufficient notice on those who might wish to modify their conduct
to avoid its application, we will nevertheless point out several
of its most obvious organizing features. To trigger section 76-

No. 20041073 8
5-202(1)(b), additional murders or their attempts must be related
in some way to one another. Close temporal proximity is the most
apparent measure of linkage, as the phrase “incident to one act”
suggests. Time is not the only possible connecting
characteristic, however, inasmuch as multiple murders or attempts
incident to one “scheme” may occur over an extended period of
time. The relevant nexus connoted by “scheme” is a plan that
targets multiple victims. See State v. Bradshaw, 2006 UT 87,
¶¶ 12-16, 152 P.3d 288 (discussing when multiple related acts may
constitute a single scheme in the communications fraud context).
A single “course of conduct” implies a more lengthy duration than
an “act” and a lesser emphasis on planning than a “scheme,” but
nevertheless, the term includes elements of both act and scheme.
One “criminal episode” is, like “scheme,” not particularly
temporally dependent, but rather appears to address even
otherwise random murders or attempts committed while the
defendant is undertaking another criminal activity. Contrary to
what Mr. Ross suggests, the terms “act,” “scheme,” “course of
conduct,” and “criminal episode” have common, generally
understood meanings. And where statutory terms are “readily
ascertainable,” the vagueness doctrine does not require a
legislature to redefine them. See MacGuire, 2004 UT 4, ¶ 31.
¶29 Moreover, the statutory terms acquire greater clarity
when considered in the context of the whole provision. The
individual terms are shaped and their definitional contours
sharpened through comparisons and contrasts to their companions.
Thus, the clarity of the whole of the statute is greater than the
sum of its individual parts. The individual terms “act,”
“scheme,” “course of conduct,” and “criminal episode,” taken
together in context of the statute, indicate a requirement that
the foundational act (a murder) and the aggravating act (a second
murder or an attempted murder) be linked by a degree of
commonality. Whether time, place, manner, purpose, or a
combination of the four serve to link the foundational act to the
aggravating act for the purpose of this statute, it is clear that
the statute requires that there be some indicia that separate
acts are parts of a whole.
¶30 Stated most simply, section 76-5-202(1)(b) applies to
murders or attempts linked by time, place, or purpose. It is
clear to us that the statute would fully communicate to Mr. Ross,
as he stood armed with jealous rage and a pistol, waiting for
Ms. Christensen to answer her door early on the morning of June
30, that what could transpire in the ensuing minutes could well
be crimes and tragedies incident to one criminal episode or
course of conduct.

9 No. 20041073
¶31 Mr. Ross killed Ms. Christensen and attempted to kill
Mr. May in a sequence of events closely linked by all three
elements of time, place, and purpose. A simple timeline of
events illustrates how closely related in time, place, and
purpose Mr. Ross’s actions were: Mr. Ross drove to
Ms. Christensen’s home; he rang the doorbell, entered
Ms. Christensen’s home, and questioned her and Mr. May; he forced
Ms. Christensen into her bedroom and shot and killed her with
three bullets; he found Mr. May in the garage, chased after him,
and fired six bullets, injuring Mr. May with the second shot; he
called Ms. Christensen’s father, told him that he had just killed
his daughter, and that he was on his way to Mr. Christensen’s
home to “finish the job”; and finally, while still driving, he
was apprehended by the police. All of this occurred between 6:00
a.m. and 7:00 a.m.
¶32 The trial evidence--most prominently Mr. Ross’s
interrogation of Ms. Christensen regarding the recent sexual
activity of Ms. Christensen and Mr. May--leaves little doubt that
Mr. Ross’s jealousy and anger over Ms. Christensen’s spurning of
his affections impelled him to appear at Ms. Christensen’s door.
We have little difficulty matching the terms “course of conduct”
and “criminal episode” to the murder and attempted murder that
Mr. Ross committed within the span of less than one hour,
motivated by his jealousy and rage. It may be that, at the
boundaries, the statute is unclear about when two or more
separate acts are part of a single whole. But this is not a
boundary case. The statute, therefore, is constitutional as
applied to Mr. Ross.
II. MR. ROSS’S ATTEMPTED AGGRAVATED MURDER CONVICTION SHOULD NOT
MERGE WITH HIS AGGRAVATED MURDER CONVICTION
¶33 We next take up Mr. Ross’s claim that the trial court
committed plain error when it permitted the jury to convict him
of both aggravated murder and attempted aggravated murder,
instead of merging the two convictions into a single crime.
Although I do not hold the majority on this issue, I would find
that no error occurred because Utah Code section 76-5-202 is an
enhancement statute; the two convictions therefore should not
merge.
¶34 Mr. Ross contends that merger was mandated because the
attempted murder charge was a necessary predicate to, and a
lesser included offense of, the aggravated murder charge. Utah
Code section 76-1-402(3) permits greater and lesser included
offenses to merge. An offense is “lesser included” and eligible
for merger when “[i]t is established by proof of the same or less
than all the facts required to establish the commission of the

No. 20041073 10
[greater] offense charged . . . .” Utah Code Ann. § 76-1-
402(3)(a) (2003). We have interpreted this provision to mean
that “where the two crimes are ‘such that the greater cannot be
committed without necessarily having committed the lesser,’ then
as a matter of law they stand in the relationship of greater and
lesser offenses, and the defendant cannot be convicted or
punished for both.” State v. Hill, 674 P.2d 96, 97 (Utah 1983)
(quoting State v. Baker, 671 P.2d 152, 156 (Utah 1983)).
Although merger is codified in statute, it has a constitutional
pedigree as it provides a means to prevent violations of
constitutional double jeopardy protection. State v. Smith, 2005
UT 57, ¶ 7, 122 P.3d 615.
¶35 A criminal statute is freed from double jeopardy
concerns and exempted from the merger requirements in Utah Code
section 76-1-402(3) if it is clear from the “plain language and
structure” of the pertinent provision that the statute is an
enhancement statute, i.e., that the legislature “intended to
enhance the penalty for one type of offense when certain
characteristics are present that independently constitute a
different offense.” Id. ¶ 11. Enhancement statutes differ from
other criminal statutes by singling out “particular
characteristics of criminal conduct as warranting harsher
punishment.” Id. ¶ 10 (citing State v. McCovey, 803 P.2d 1234,
1237 (Utah 1990)). But “if the legislature intends to preclude
[a statute] from requiring merger in a specific instance, it must
clearly indicate that the provision in question is intended to
enhance the penalty for one type of offense when certain
characteristics are present that independently constitute a
different offense.” Id. ¶ 11.
¶36 In Smith, we held Utah Code section 76-10-504(3) to be
an enhancement provision because it enhances “the penalty for the
offense of carrying a concealed firearm when the offense is
committed in conjunction with a crime of violence, a separate
offense.” Id. ¶ 13. We found it relevant that the statute
enumerated various levels of offenses depending on the type of
weapon involved and on the circumstances in which carrying a
concealed weapon occurs. Id.
¶37 Our experience in assessing the characteristics of an
enhancement statute in Smith serves us well here. While Utah
Code section 76-5-202 lacks the clear-cut “graduated punishment
scale” of Utah Code section 76-10-504(3), it unmistakably
enhances “criminal homicide” to “aggravated murder” when the
murder is committed in conjunction with one of the several
enumerated aggravating circumstances, some of which constitute
separate, independent crimes. Section 76-5-202 does not define
aggravated murder by setting out a set of elements unique to that

1 We decided Shaffer before we added the third step in the
(continued...)
11 No. 20041073
offense. Rather, the statute provides that murder should be
enhanced to aggravated murder when a homicide is accompanied by
one of several listed aggravators. Specifically, the aggravating
circumstance at issue here requires that murder be enhanced to
aggravated murder if the murder is committed incident to a single
“act, scheme, course of conduct, or criminal episode . . . during
which the actor attempted to kill one or more persons in addition
to the victim who was killed.” Utah Code Ann. § 76-5-202(1)(b).
The purpose and effect of this language--dictated by the plain
language and structure of the statute--is to enhance the degree
of punishment for the murder because it was committed in
conjunction with an attempted murder, a separate offense. Thus,
the structure of section 76-5-202 demonstrates to our
satisfaction that its purpose is to single out circumstances that
merit a greater degree of punishment for murder than that
otherwise provided for perpetrators of criminal homicide. The
statute is, therefore, an enhancement statute not subject to the
merger doctrine. The trial court did not err when it permitted
the jury to convict Mr. Ross of both aggravated murder and
attempted aggravated murder.
¶38 The majority takes issue with this assessment and
asserts that under Utah Code section 76-1-402(3) the attempted
murder and the aggravated murder charges against Mr. Ross should
be merged. Pointing to State v. Shaffer, 725 P.2d 1301 (Utah
1986), and State v. Wood, 868 P.2d 70 (Utah 1993), overruled on
other grounds by State v. Mirquet, 914 P.2d 1144 (Utah 1996), the
majority contends that this court has already found that the
merger doctrine applies to Utah Code section 76-5-202, the
aggravated murder statute. I am neither persuaded that we have,
nor that we should.
¶39 It is true that we held in both Shaffer and Wood that
the underlying aggravating crime should merge with the aggravated
murder charge. What we did not discuss in either case was
whether section 76-5-202 was an enhancement statute and, thus,
exempt from the merger requirements. In Smith, we emphasized the
need to determine whether a statute was an enhancement statute as
a necessary third step in the merger analysis: “In McCovey,
however, this court in effect added a third step to the [merger]
analysis, holding that in cases where the legislature intended a
statute to be an enhancement statute, the merger doctrine set
forth in section 76-1-402(3) does not apply.” 2005 UT 57, ¶ 9
(citing McCovey, 803 P.2d at 1237). Because neither Shaffer nor
Wood mentions section 76-5-202 in the context of enhancement,1

1 (...continued)
merger analysis in McCovey. And in Wood, which was decided after
McCovey but before we further clarified our McCovey holding in
Smith, the question of whether section 76-5-202 was an
enhancement statute was not raised as an issue and we,
consequently, did not discuss it.
No. 20041073 12
those cases do not control our decision on the enhancement
question. And because my decision rests on our determination
that, under Smith, section 76-5-202 is an enhancement statute, I
am not troubled by Shaffer’s and Wood’s holdings that section 76-
5-202 meets the first two of the three steps in a merger
analysis.
III. THE IMPANELING OF AN ANONYMOUS JURY DOES NOT REQUIRE A NEW
TRIAL
¶40 We next consider whether the trial court committed
plain error when it impaneled an anonymous jury. We conclude
that the trial court was justified in believing it confronted a
need to protect the jury from media exposure and that this
concern could be effectively addressed by impaneling an anonymous
jury. We further conclude that the trial court implemented
reasonable and workable precautions to ensure that Mr. Ross was
not prejudiced by the decision to refer to jurors by number
instead of by name.
¶41 Our task of considering whether or not it is
appropriate to impanel an anonymous jury is an issue of first
impression for this court. The absence of any direction from our
appellate courts on the subject of anonymous juries is reason
enough to overcome an unpreserved issue for which review is
sought based on plain error since a trial court could hardly be
faulted for failing to take note of jurisprudence that does not
exist. See State v. Ross, 951 P.2d 236, 239 (Utah Ct. App.
1997). Still, if the trial judge should have apprehended that by
impaneling an anonymous jury he would prejudice Mr. Ross or if
the trial court had impaneled the anonymous jury in a manner that
resulted in prejudice, we could reach the merits and, if
appropriate, provide a remedy by invoking the plain error
exception to our preservation requirement, even in the absence of
clear Utah precedent on the matter. We do not believe that the
trial judge plainly erred in this instance. But because there is
no present guidance for trial courts on this question, we take
this opportunity first to outline the principles that should
guide a trial court when faced with the issue of whether and how
to impanel an anonymous jury and then to note that this trial
judge acted well within those parameters.

13 No. 20041073
¶42 We would not, however, liberally exercise our authority
to intercede to undo a trial judge’s decision to impanel an
anonymous jury because that decision is highly fact intensive and
well within the scope of a trial judge’s discretionary powers.
See State v. Samonte, 928 P.2d 1, 17 (Haw. 1996). It is a
decision that requires a trial judge to draw on the training and
temperament that form the very core of judging and is therefore a
decision that is entitled to deferential treatment by a reviewing
court. See State v. Bowles, 530 N.W.2d 521, 531 (Minn. 1995).
¶43 Judges properly enjoy considerable latitude in
conducting the affairs of their courtroom so long as courtroom
procedures do not communicate bias against the defendant. When
impaneling an anonymous jury, we deem it wise that trial courts
exercise their discretion in a manner consistent with the
approach adopted by the federal courts, which includes
(1) finding a compelling reason to believe the jury needs
protection from external sources and (2) taking reasonable
precautions to minimize any prejudicial effects on the defendant
and to ensure that the defendant’s rights are protected. See,
e.g., State v. Brown, 118 P.3d 1273, 1279 (Kan. 2005).
¶44 While the trial court in this case did not have the
benefit of precedent from this court, we believe that it
impaneled an anonymous jury appropriately and, in fact, adhered
closely to the principles reflected in these two guidelines.
First, the trial court had a compelling reason to impanel an
anonymous jury. Compelling reasons for impaneling an anonymous
jury include: (1) the defendant’s involvement in organized
crime; (2) the defendant’s participation in a group with the
capacity to harm jurors; (3) the defendant’s past attempts to
interfere with the judicial process; (4) the potential that, if
convicted, the defendant will suffer a lengthy incarceration and
substantial monetary penalties; and (5) extensive publicity that
could enhance the possibility that the jurors’ names become
public and expose them to intimidation or harassment. Id.; see
also United States v. Ross, 33 F.3d 1507, 1520 (11th Cir. 1994);
United States v. Coonan, 664 F. Supp. 861, 862 (S.D.N.Y. 1987);
Samonte, 928 P.2d at 14.
¶45 The trial court presiding over Mr. Ross’s trial
impaneled an anonymous jury because of the threat of extensive
publicity about the case. As our factual narrative amply
demonstrates, this was a crime that featured an embittered ex-
lover, a gruesome killing, a suspenseful escape, a police chase,
and an abundance of other elements that made the trial an
irresistible media event. The trial court’s desire to protect
the jurors’ privacy and its concern about how significant media

No. 20041073 14
attention might jeopardize the ability of the jury to do its work
justified its decision to opt for an anonymous jury.
¶46 The trial court also took precautions to mitigate any
potential prejudice that the defendant might suffer as a result
of being tried before an anonymous jury. Courts typically rely
on two general precautions to minimize the prejudicial effects of
an anonymous jury: (1) ensuring a meaningful voir dire to expose
bias and (2) offering jury instructions designed to eliminate any
implication of the defendant’s guilt. Samonte, 928 P.2d at 13-
14; State v. Ford, 539 N.W.2d 214, 221 (Minn. 1995); Bowles, 530
N.W.2d at 530. The trial court here--again unaided by any
precedent from this court--took each of these precautions to
ensure that Mr. Ross was not unfairly prejudiced.
¶47 Effective voir dire, one in which counsel and the trial
court are able to fully explore and expose bias, is a powerful
antidote to any prejudice, including that which might result from
an anonymous jury. Samonte, 928 P.2d at 15-16. Ensuring that
jury anonymity does not interfere with the opportunity to conduct
a meaningful voir dire, therefore, is critical.
¶48 In this case, voir dire was meaningful, with measures
taken to expose the biases of the jurors. In addition to the
jury questionnaire, the court asked some follow-up questions in
private interviews concerning specific answers the potential
jurors provided in the questionnaires. It asked them about their
feelings regarding the death penalty and whether they “could be
fair to both prosecution and defense on the issue of punishment.”
The court informed the jurors that “the defendant is presumed
innocent and all presumptions of law are in favor of his
innocence.” Finally, it told them that “the defendant is never
required to prove his innocence.” This effective voir dire
mitigated any prejudice that Mr. Ross might have suffered from
being tried before an anonymous jury.
¶49 To further reduce the risk of prejudice, a trial court
should instruct jurors in a way that recognizes the threat that
an anonymous jury poses to a defendant’s presumption of
innocence. This may be accomplished in many ways, including, for
example, taking care to avoid calling attention to the anonymity
of the jury or otherwise suggesting that, owing to its
uniqueness, jury anonymity is reserved for a trial of
particularly heinous crimes or dangerous and obviously guilty
defendants. Among instructions emphasizing the presumption of
innocence, “[t]he trial court should give anonymous jurors a
plausible and nonprejudicial reason for not disclosing their
identities that decreases the probability that the jurors would
infer that the defendant is guilty or dangerous.” Samonte, 928

15 No. 20041073
P.2d at 16. For example, a court might instruct anonymous jurors
that “the purpose for juror anonymity is to protect the jurors
from contacts by the news media, thereby implying that juror
anonymity is not the result of threats from the criminal
defendant.” Id.
¶50 In this case, the trial judge met every reasonable
expectation we could impose on him to send the jury into its
deliberations free of any sense that their anonymity somehow
implied that Mr. Ross was guilty. Specifically, the trial court
advised the jurors, on more than one occasion, that their
anonymity was to protect their privacy and to encourage their
candor during the voir dire process. Further, the court
explained in its decorum order that another purpose of anonymity
was to shield the jurors from potential media harassment. This
order offered jurors a plausible and nonprejudicial explanation
for why they were impaneled anonymously, which reduced the
possibility that they believed their anonymity was tied to
Mr. Ross’s guilt or dangerous nature.
¶51 Additionally, jurors should have known from in-chamber
interviews that their anonymity was primarily for privacy and
protection from the media, not from Mr. Ross. With one
exception, each prospective juror was addressed by both name and
number during in-chamber interviews. In four different
interviews, defense counsel referred to prospective jurors by
name, and the State did so three times.
¶52 In sum, the trial court did not plainly err in
impaneling an anonymous jury. It had sufficient cause to do so,
including the need to protect the jury from the media and to
encourage candor during the voir dire process. The court also
took reasonable precautions to minimize prejudicial effects on
Mr. Ross by ensuring a thorough voir dire process and by
providing a plausible and nonprejudicial explanation for the
jurors’ anonymity.
IV. THE STATE’S REMARKS DID NOT CONSTITUTE PROSECUTORIAL
MISCONDUCT, AND TRIAL COUNSEL’S FAILURE TO OBJECT DID NOT
CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL
¶53 Finally, we consider whether the State’s remarks during
closing arguments constitute prosecutorial misconduct. Applying
our plain error standard of review, we hold that they do not.
Even if the statements made by the State during closing arguments
were not all fair inferences drawn from the evidence proffered
during trial, they were harmless in the face of the overwhelming
evidence of Mr. Ross’s guilt. Therefore, it was not plain error
for the trial court not to have intervened when the State

No. 20041073 16
stretched evidence regarding the only disputed point in the
case--whether Mr. Ross’s shooting of Ms. Christensen and Mr. May
was incident to “one act, scheme, course of conduct, or criminal
episode” under Utah Code section 76-5-202(1)(b) (2003).
¶54 This court set forth the test for prosecutorial
misconduct in State v. Valdez, stating:
The test of whether the remarks made by
counsel are so objectionable as to merit a
reversal in a criminal case is, did the
remarks call to the attention of the jurors
matters which they would not be justified in
considering in determining their verdict, and
were they, under the circumstances of the
particular case, probably influenced by those
remarks.
513 P.2d 422, 426 (Utah 1973). This two-part test must be
applied “under the circumstances of the particular case.” State
v. Troy, 688 P.2d 483, 486 (Utah 1984). In assessing the second
component of the test, “‘[i]f proof of defendant’s guilt is
strong, the challenged conduct or remark will not be presumed
prejudicial.’” Id. (quoting State v. Seeger, 479 P.2d 240, 241
(Or. 1971)). If prosecutorial misconduct is established, the
State must show that the error was harmless beyond a reasonable
doubt. State v. Eaton, 569 P.2d 1114, 1116 (Utah 1977).
¶55 Our review of a prosecutor’s conduct must also take
into account that “[a] prosecutor has the duty and right to argue
the case based on the ‘total picture shown by the evidence or the
lack thereof.’” State v. Hales, 652 P.2d 1290, 1291 (Utah 1982)
(quoting State v. Kazda, 540 P.2d 949, 951 (Utah 1975)).
Furthermore, “[c]ounsel for both sides have considerable latitude
in their closing arguments. They have the right to fully discuss
from their perspectives the evidence and all inferences and
deductions it supports.” State v. Dibello, 780 P.2d 1221, 1225
(Utah 1989); see also State v. Lafferty, 749 P.2d 1239, 1255
(Utah 1988).
¶56 The State did, in fact, seize a sizeable portion of
latitude during closing arguments in recounting the events
surrounding the death of Ms. Christensen. For example, the State
implied that Mr. Ross ordered both Ms. Christensen and Mr. May
back to the bedroom, but Mr. May actually testified that Mr. Ross

2 In closing arguments, the State said, “[Mr. Ross] doesn’t
order just [Ms. Christensen] back to that bedroom. He orders
Mr. May back to the bedroom as well. He starts them back to the
bedroom.” Mr. May actually testified that Mr. Ross grabbed
Ms. Christensen’s arm and pushed her toward the bedroom. After
another exchange, Mr. Ross pushed past Mr. May and, again, pushed
Ms. Christensen to the bedroom.
3 Although Mr. May said that he heard the shots that killed
Ms. Christensen while he was trying to start his car and that
“the next thing I noticed I was looking up and there he was right
in the doorway,” he never testified that “very few seconds”
elapsed.
17 No. 20041073
only pushed Ms. Christensen toward the bedroom.2 Also, the State
reminded the jury that Mr. May said “very few seconds” elapsed
between the time when Mr. Ross killed Ms. Christensen and when he
approached Mr. May in the garage and began shooting at him.
Mr. May, however, gave no specific time frame for the sequence of
the events.3 The jury could infer from these remarks that the
attempt to kill Mr. May was part of the same “act, scheme, course
of conduct, or criminal episode” as the murder of
Ms. Christensen, which was required to convict Mr. Ross of
aggravated murder.
¶57 While these two remarks were questionable--especially
considering that they bear on the main issue in the case of
whether or not Mr. Ross was guilty of murder or aggravated
murder--they were also harmless given the weight of evidence
against Mr. Ross. Proof of Mr. Ross’s guilt is strong in this
case. In fact, at trial, Mr. Ross conceded in closing argument
that he did not dispute the State’s evidence and that there was
not “much doubt, in view of the evidence that [he] killed
Ms. Christensen, and that he attempted to kill Mr. May.” The
question then became whether “the homicide was committed incident
to one act, scheme, course of conduct, or criminal episode . . .
during which [Mr. Ross] attempted to kill one or more persons in
addition to the victim who was killed.” Utah Code Ann. § 76-5-
202(1)(b).
¶58 As we indicated in section I of our analysis, there is
ample evidence in the record to demonstrate that the murder of
Ms. Christensen and the attempted murder of Mr. May were, indeed,
two parts of a single “act, scheme, course of conduct, or
criminal episode.” Specifically, the evidence shows that
Mr. Ross showed up at Ms. Christensen’s home with a loaded,
concealed handgun. After speaking to both Ms. Christensen and
Mr. May, Mr. Ross took Ms. Christensen into the bedroom and shot

No. 20041073 18
her. Mr. Ross proceeded directly to the garage, where Mr. May
was attempting to flee. Mr. Ross chased Mr. May out of the
garage and fired six shots at him, injuring him with one of the
shots. Mr. Ross then called Ms. Christensen’s father and told
him that he had just shot his daughter and that he was on his way
to Mr. Christensen’s home to finish the job. The evidence that
the murder and the attempted murder were part of a single “act,
scheme, course of conduct, or criminal episode” is strong, even
absent the questionable statements made by the prosecution in its
closing arguments. The doctrine of prosecutorial misconduct,
therefore, does not apply, and it was not plain error for the
trial court not to have intervened.
CONCLUSION
¶59 In conclusion, we hold that Utah Code section 76-5-
202(1)(b) is not unconstitutionally vague since the plain meaning
of the statutory terminology provides sufficient notice of the
prohibited conduct. We also hold that the impaneling of an
anonymous jury, under the circumstances of this case, does not
require a new trial, particularly where the trial court took
necessary precautions to ensure that this procedure was not
unfairly prejudicial to Mr. Ross. Finally, the State’s remarks
during closing arguments did not constitute prosecutorial
misconduct given the weight of evidence against Mr. Ross. We
therefore affirm Mr. Ross’s convictions for aggravated murder.
The majority finds that Mr. Ross’s aggravated murder conviction
and his attempted aggravated murder conviction should merge and
vacates his attempted aggravated murder conviction.
---
¶60 Associate Chief Justice Wilkins concurs in Justice
Nehring’s opinion.
---
DURHAM, Chief Justice, writing for the majority:
¶61 According to this court’s precedent, an underlying
felony that constitutes the aggravating circumstance merges with
the conviction for aggravated murder pursuant to Utah Code
section 76-5-202. Therefore, it was impermissible for the trial
court to allow convictions to stand for both aggravated murder
and attempted aggravated murder when the attempted murder of Mr.
May was the only aggravating factor presented to the jury.
¶62 Aggravated murder, a capital crime, “requires proof of
a statutorily defined aggravating circumstance in addition to an

1 In Wood, the aggravating circumstance that the murder was
heinous and depraved was not treated as a separate aggravating
circumstance because “the heinousness and depravity arose
directly out of the aggravated sexual assault. . . . [T]he
heinousness and the [sexual assault] were the same factually and
should be treated legally for merger purposes as one aggravating
circumstance.” 868 P.2d at 90.
19 No. 20041073
intentional and knowing killing.” State v. Shaffer, 725 P.2d
1301, 1313 (Utah 1986). In the instant case, the sole
aggravating circumstance presented to the jury was whether “the
homicide was committed incident to one act, scheme, course of
conduct, or criminal episode . . . during which the actor
attempted to kill one or more persons in addition to the victim
who was killed.” Utah Code Ann. § 76-5-202(1)(b) (2003). Proof
of the attempted murder of Mr. May served as the aggravating
circumstance allowing for Mr. Ross’s conviction for capital
murder.
¶63 The merger doctrine, derived from the Fifth Amendment’s
Double Jeopardy Clause, prevents a defendant from being convicted
of “both the offense charged and the included offense.” Utah
Code Ann. § 76-1-402(3) (2003 & Supp. 2007). An offense is
included when “[i]t is established by proof of the same or less
than all the facts required to establish the commission of the
offense charged.” Id. § 76-1-402(3)(a). In the case before us,
where the attempted murder of Mr. May was the sole aggravating
factor presented to the jury, the attempted murder is a lesser
included offense of the aggravated murder. Proof of the facts of
the attempted murder were necessary to establish the commission
of the aggravated murder.
¶64 On more than one occasion, this court has determined
that the merger doctrine applies to Utah Code section 76-5-202.
In State v. Shaffer, we held that aggravated robbery merged with
aggravated murder when robbery was the sole aggravating
circumstance for the capital murder conviction. 725 P.2d at
1313. Similarly, in State v. Wood, we held that the predicate
offense of aggravated sexual assault merged with the conviction
for aggravated murder. 868 P.2d 70, 90 (Utah 1993), overruled on
other grounds by State v. Mirquet, 914 P.2d 1144 (Utah 1996).1
Since Shaffer and Wood were decided, the legislature has not
modified the provisions of Utah Code section 76-5-202 in any
manner that would alter our analysis. Compare Utah Code Ann.
§ 76-5-202 (2003), with id. § 76-5-202 (Supp. 1993), and id.
§ 76-5-202 (Supp. 1986). Although the legislature has added new
aggravating factors and affirmative defenses, it has done nothing
to “clearly indicate that the provision . . . is intended to

2 Even absent our precedent, the aggravated murder statute
does not evidence a “graduated punishment scale . . . indicative
of an enhancement statute.” Smith, 2005 UT 57, ¶ 3 (internal
quotation marks omitted). In Smith, the concealed weapon statute
at issue listed circumstances in which carrying a concealed
weapon could be either a class B misdemeanor, a class A
misdemeanor, or a second degree felony. Id. ¶ 12. The structure
of section 76-5-202 is unlike that at issue in Smith; all
aggravated murders are capital felonies.
3 See State v. Young, 853 P.2d 327, 367 (Utah 1993)
(recognizing that a “defendant could be convicted of a crime that
might also serve as the basis for an aggravating circumstance if
the prosecution did not rely on that crime for proof of the
aggravating circumstance,” and on that basis holding that the
theft conviction did not merge with the first degree murder
conviction under Utah Code section 76-5-202).
No. 20041073 20
enhance the penalty for [murder] when certain characteristics are
present.” State v. Smith, 2005 UT 57, ¶ 11, 122 P.3d 615. We
have previously stated that such explicit indication is required,
id., and the legislature has had ample opportunity to exempt
aggravated murder from the doctrine of merger by amending the
statute to clearly indicate that it is intended to operate only
as an enhancement provision. “[T]he court has no power to
rewrite a statute to make it conform to an intention not
expressed.” State v. McCovey, 803 P.2d 1234, 1240 (Utah 1990)
(Durham, J., dissenting) (internal quotation marks omitted).
Absent action by the legislature, Shaffer and Wood are still good
law, and the dissent’s effort to read section 76-5-202 as an
enhancement statute is improper absent clear legislative action.2
¶65 The aggravating circumstance in this case was the
attempted murder. Like the predicate felonies in Shaffer and
Wood, when the aggravating circumstance is a crime, it must merge
with the greater offense if no other independent ground exists to
raise the charge to aggravated murder.3 To allow the attempted
murder charge to be used as the sole means of aggravation and as
its own separate offense permits double counting of the offense
in violation of double jeopardy and the merger doctrine.
¶66 Mr. Ross could have been convicted of murder and
attempted murder. When the jury convicted Mr. Ross for
aggravated murder, the attempted murder of Mr. May, a necessary
element to prove the aggravated murder, merged with the capital
felony. Accordingly, Mr. Ross could be convicted of only
aggravated murder.

21 No. 20041073
¶67 We affirm the conviction for aggravated murder and
vacate the conviction for attempted aggravated murder. The
practical effect of this decision is that Mr. Ross will serve one
life sentence without the possibility of parole instead of two.
See State v. Hill, 674 P.2d 96, 98 (Utah 1983) (“[I]t is
appropriate to regard the conviction on the lesser offense as
mere surplusage, which does not invalidate the conviction and
sentence on the greater offense.”).
---
¶68 Justice Durrant and Justice Parrish concur in Chief
Justice Durham’s opinion.