State v. Sosa-Hurtado

2018 UT App 35

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
YELFRIS SOSA-HURTADO,
Appellant.

Opinion
No. 20150583-CA
Filed March 1, 2018

Third District Court, Salt Lake Department
The Honorable Denise P. Lindberg
No. 121902927

Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
JILL M. POHLMAN and DIANA HAGEN concurred.

HARRIS, Judge:

¶1 A father (Father) and his son (Son) were working together
in a small corner smoke shop when Defendant Yelfris Sosa-
Hurtado, having lost a fistfight with Son less than an hour
earlier, entered the smoke shop with a rifle. Defendant fired one
shot at Father, missing but causing secondary injuries, then fired
three shots at Son, fatally wounding him. Defendant then fired
another six shots outside the shop at no particular target.

¶2 After trial, Defendant was convicted of aggravated
murder, a first degree felony; discharge of a firearm with injury,
a second degree felony; and eight counts of discharge of a
firearm, all third degree felonies. The aggravator enhancing
Defendant’s murder charge was that Defendant, in murdering
State v. Sosa-Hurtado

Son, also “knowingly created a great risk of death to a person
other than [Son].” Defendant appeals all of these convictions,
arguing that the aggravator was unsupported by the evidence,
and arguing that, for various reasons, the trial court should have
granted his motions for mistrial and for new trial. We affirm
Defendant’s convictions.

BACKGROUND

¶3 On March 14, 2012, Father and Son were working at a
smoke shop when Father noticed a car parked in an alley next to
the shop that was situated in such a way that Father worried it
might cause a hazard for the shop’s patrons. Father approached
Defendant, who was standing near the car, explained his
concerns, and asked Defendant to move the car. Defendant
refused. Father noted his own physical disability and stated that
there wasn’t anything he could personally do about Defendant’s
refusal, but repeated his concern that people could be injured
and reiterated his request that Defendant move his car.
Defendant again refused to move the car and asked, “What are
you going to do about it?”

¶4 Following this exchange, Father went back inside the
smoke shop and told Son what had happened, and Son decided
to go outside and talk to Defendant. Son’s entreaty was likewise
unpersuasive; when Son asked Defendant to move the car,
Defendant not only refused, but also punched Son in the face.
Son returned blows, and a fistfight ensued, with Son ending up
getting the better of Defendant. When the fight was over,
Defendant got into the car and fled, and Father and Son went
back inside the shop.

¶5 After fleeing from the fistfight, Defendant went to a
friend’s (Friend) house, and complained to Friend that people at
the smoke shop had hit him. Friend offered to help Defendant go
back and fight those who hit him. Defendant agreed that this

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sounded like a good idea, and so the two of them drove back to
the smoke shop. When they arrived, they both exited the car,
and Friend began to walk toward the entrance. Before he got
there, Defendant passed Friend and entered the smoke shop
carrying a high-powered rifle that was approximately three feet
long. 1 Once inside, Defendant told a customer to leave the
premises, and then began shooting.

¶6 The smoke shop consisted of one room that was
approximately twenty-four feet long and fifteen feet wide, with a
single door along the longer wall. When Defendant entered the
shop, Father and Son were standing behind a waist-high glass
counter that was laid out in an S-shape near the wall opposite
the door. Father and Son were standing between three and seven
feet apart. Defendant proceeded across the small shop, toward
Father and Son, until he was standing approximately three feet
from the counter and some five feet away from both Father and
Son. From this location, Defendant fired a single shot in Father’s
direction, narrowly missing Father but hitting the glass counter
and interior shelving near Father, causing glass and wood
shrapnel to hit Father’s leg. After this shot was fired, Father fell
to the floor behind the counter.

¶7 After missing his shot at Father, Defendant immediately
turned toward Son and took one or two steps toward him,
saying, “I’m going to kill you.” Defendant stopped when he was
standing at the counter, approximately three feet away from Son,
and extended the barrel of the gun toward Son, so that the
muzzle of the rifle was very close to Son. From that location,
Defendant shot Son, causing Son to fall on the floor behind the
counter. Defendant then leaned over the counter, and shot Son
two more times. While Defendant was shooting Son, neither

1. No witness testified to the exact length of the rifle, but the
rifle’s approximate length was clearly shown in photographs
admitted into evidence at trial.

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Defendant nor his rifle was facing Father; rather, Father was to
Defendant’s right, about five feet away, on the floor behind the
counter. Still, Father was close enough to feel the “muzzle blast”
from the rifle on his face as Defendant shot Son. After shooting
Son, Defendant left the store through the front door and fired
another six shots outside the shop, apparently at no particular
target.

¶8 After interviewing witnesses and conducting an
investigation, law enforcement officers apprehended Defendant
and Friend a few days later. Defendant was charged with
aggravated murder, discharge of a firearm causing bodily injury,
and eight counts of discharge of a firearm. Friend was charged
with murder, and with nine counts of discharge of a firearm. The
aggravator enhancing Defendant’s murder charges was that
Defendant, in the course of murdering Son, also “knowingly
created a great risk of death” to Father.

¶9 At trial, Father and several other witnesses testified
during the State’s case-in-chief, identifying Defendant as the
shooter and describing the argument and fistfight between
Defendant, Father, and Son. These witnesses also described
Defendant’s conduct during the shooting itself. Friend was one
of these witnesses, and he described his conversation with
Defendant following the fistfight, their subsequent drive to the
smoke shop, and the events that took place after their arrival.
Friend gave this testimony pursuant to a plea bargain in which
the State agreed to reduce Friend’s charges and recommend only
probation in this case in exchange for Friend’s truthful
testimony. As part of this plea agreement, the State also agreed
to dismiss an aggravated burglary charge against Friend in a
separate case in which Defendant was also a codefendant.
During cross-examination, Defendant’s counsel asked Friend
about the details of his plea arrangement, including whether he
had an aggravated burglary charge pending in a separate case.
When Friend answered that question in the affirmative,
Defendant’s counsel asked if that charge would also be

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dismissed as part of the bargain. Friend responded, “I think,” at
which point the State requested a sidebar.

¶10 During the sidebar, the State explained that the
aggravated burglary charge was for an incident that took place
ten days prior to the events at the smoke shop. The State
acknowledged that it intended to dismiss Friend’s aggravated
burglary charge, but also stated that part of the plea agreement
in this case was that Friend would also testify against Defendant
in the aggravated burglary case, if necessary. The State asserted
that if Defendant’s counsel questioned Friend about the
aggravated burglary charge, it would open the door for Friend to
disclose that Defendant was a codefendant in that case, thereby
alerting the jury to the fact that Defendant also stood accused of
committing aggravated burglary in a separate incident just ten
days before the events at the smoke shop. In response,
Defendant’s counsel stated that Friend’s counsel had informed
Defendant’s counsel that Friend’s aggravated burglary charge
would be dismissed in exchange for Friend’s testimony in this
case. Defendant’s counsel then stated that he would rather not
provide the State with an opportunity to tell the jury about
Defendant’s potential culpability in the aggravated burglary
case, and therefore elected to refrain from further questioning on
the subject. The trial court then instructed the jury to “disregard
any reference or any discussion that was previously made about
any unrelated case being dismissed.”

¶11 As the trial continued, the State presented further
testimony from law enforcement officers who investigated
Defendant’s involvement in this case. These officers testified that
Defendant had access to an AK-74, the type of rifle that the State
believed was used in the shooting. One officer (Officer) also
testified that, on the day Defendant was arrested, Defendant still
had bruising on his face. Following Officer’s testimony, the jury
submitted proposed questions to the trial court, some of which
the court directed Officer to answer. One of these questions
asked Officer whether, at the time Defendant was arrested,

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Defendant had offered any explanation for the bruising on his
face. In response, Officer stated that, while law enforcement
officers had noticed the bruising at the time of Defendant’s
arrest, “because he invoked his rights we weren’t able to ask him
about that, so we didn’t get an answer to that.”

¶12 Defendant’s counsel quickly objected to Officer’s
response. Outside the presence of the jury, Defendant’s counsel
moved for a mistrial, arguing that Officer had improperly
commented on Defendant’s invocation of his constitutional right
to be free from self-incrimination. The State opposed the motion
for mistrial, and asserted that Officer’s reference to Defendant’s
invocation of his rights was harmless because it was indirect,
inadvertent, and would not be used by the State as evidence of
Defendant’s guilt. The State instead suggested that the court give
a curative instruction to the jury explaining to them that
Defendant did nothing wrong by invoking his right to remain
silent. In response, Defendant’s counsel indicated that she would
object to a curative instruction and reiterated that she believed
mistrial was the only appropriate remedy for any harm caused
by Officer’s statement. The court denied Defendant’s motion for
a mistrial and, because Defendant objected to one, did not give a
curative instruction. Neither Defendant nor the State brought up
Officer’s statement again.

¶13 At the close of the State’s case-in-chief, Defendant moved
to dismiss the aggravator enhancing his murder charge.
Defendant argued that the State had not presented sufficient
evidence that Defendant, in murdering Son, had knowingly
exposed Father to a great risk of death, because Defendant’s
shots directed towards Son occurred at close range when Father
was several feet outside of Defendant’s direct line of fire.
Defendant also asserted that because Defendant’s first shot
(directed at Father) was not one of the shots contributing to
Son’s death, it should not factor into the analysis of whether
Defendant created a great risk of death to Father. The trial court
denied Defendant’s motion to dismiss the aggravator.

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¶14 Following the presentation of the State’s case-in-chief,
Defendant elected to testify on his own behalf. During the State’s
cross-examination, Defendant admitted to buying ammunition
for an AK-74 at one point in time but denied buying ammunition
on four other occasions. In response, the State tried to impeach
Defendant by producing ammunition purchase receipts that the
State represented were found in Defendant’s house pursuant to a
search warrant. Defense counsel objected, on the ground that the
receipts in question were not in fact seized from Defendant’s
home. After a brief recess, the State conceded that the receipts
had not been found in Defendant’s house, and therefore the trial
court sustained Defendant’s objection. In addition, at the trial
court’s instruction, the prosecutor explained to the jury that the
State could not tie the ammunition purchases represented by the
receipts to Defendant, and apologized to the jury for stating
otherwise.

¶15 After presentation of the evidence, the case was submitted
to the jury, which deliberated for an entire day, from 8:00 a.m.
until nearly 5:00 p.m. At about 4:30 p.m., without previously
seeking the input of the attorneys, the trial judge entered the jury
room and asked the jurors whether they were close to a verdict,
such that they could conclude deliberations that day, or whether
they thought they would need to come back the next day. The
jurors indicated that they thought they were “close to a verdict”
but that they would “let [the court] know . . . if [they] needed to
reconvene.” Within minutes of this communication, the trial
judge entered the courtroom and informed the attorneys of the
interaction, and made a record of what was said. At the time,
neither party objected to the trial court’s ex parte
communication. A few minutes later, around 5:00 p.m., the jury
indicated that it had reached a verdict, which was then read in
open court. The jury convicted Defendant on all charges, and
determined that the aggravator applied to Defendant’s murder
conviction.

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¶16 About six weeks after Defendant’s conviction, the trial
court sentenced Defendant to life in prison without the
possibility of parole for aggravated murder; to a term of three to
fifteen years for discharge of a firearm with injury to another, to
run consecutive to the murder sentence; and to a term of three to
five years for each of the eight counts of discharge of a firearm,
to run concurrently with each other and with the other
sentences. Within ten days of sentencing, Defendant filed a
Motion for New Trial pursuant to rule 24 of the Utah Rules of
Criminal Procedure, which required (at the time) that a
Defendant must move for new trial “not later than 10 days after
entry of the sentence” and that “affidavits or evidence of the
essential facts in support of the motion” must be submitted with
the motion. Utah R. Crim. P. 24(b), (c) (2007). 2 Defendant’s
motion cited to the trial testimony, but did not attach any other
supporting evidence. Over the next several months and without
seeking leave from the court, Defendant filed a number of
affidavits and exhibits, as well as an amended motion for new
trial. The trial court refused to consider these additional
documents on the ground that they were untimely submitted
and procedurally improper. Thus, in evaluating whether to grant
Defendant a new trial, the court considered only Defendant’s
original motion for new trial and the trial record itself.

¶17 In his original motion, Defendant asserted that he was
entitled to a new trial for several reasons. First, he claimed that
the State “misled” Defendant into believing that Friend’s
aggravated burglary charge in the separate case would not be
dismissed on the basis of Friend’s testimony in this case, when
Defendant asserts that the State in fact did dismiss Friend’s

2. This rule was amended, effective on November 1, 2015, to
allow a defendant to move for a new trial within fourteen days
of sentencing. See Utah R. Crim. P. 24(c) (2015). Because the
pertinent facts in this case predate the alteration, we cite to the
version of rule that applied at the time.

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aggravated burglary charge after Friend’s testimony in this case.
Next, Defendant claimed that he was entitled to a new trial
because the receipts that the State attempted to introduce (then
withdrew and apologized for after Defendant’s objection) were
allegedly “doctored” by the State. 3 Finally, Defendant claimed
that he was entitled to a new trial because the trial court’s ex
parte communication with the jury thirty minutes before
delivery of the verdict was prejudicial, in that it may have
influenced the jury to resolve the case more quickly than it
otherwise would have. After reviewing Defendant’s motion, the
court determined that an evidentiary hearing was not necessary
and denied Defendant’s motion in a written ruling.

¶18 Defendant appeals.

ISSUES AND STANDARDS OF REVIEW

¶19 Defendant asks us to consider four issues. First, he
contends that there was insufficient evidence to support the
application of the “great risk of harm” aggravator to his murder
conviction, and therefore insufficient evidence to sustain his
conviction for aggravated murder. Evidence is insufficient to
support a jury verdict when, viewed in the light most favorable
to the verdict, it is nonetheless so “inconclusive or inherently
improbable” that “reasonable minds must have entertained a
reasonable doubt that the defendant committed the crime.” State
v. Maestas, 2012 UT 46, ¶ 177, 299 P.3d 892 (citation and internal
quotation marks omitted).

3. Specifically, Defendant alleged that the State had “whited out”
a facsimile transmission line at the top of the documents.
Defendant contends that the presence of the facsimile
transmission information on the document demonstrates that the
receipts were not found in Defendant’s home.

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¶20 Second, Defendant contends that the trial court erred
when it refused to consider the affidavits and other materials,
including an amended motion for new trial, that Defendant
submitted in support of his motion for new trial. We review a
trial court’s decision to grant or deny a motion for new trial for
abuse of discretion, State v. Mitchell, 2007 UT App 216, ¶ 6, 163
P.3d 737, and we review a trial court’s decision to exclude late-
filed evidentiary materials under that same standard, id. ¶¶ 12–
13. “However, ‘legal determinations made by the [district] court
as a basis for its denial of a new trial motion are reviewed for
correctness.’” Id. ¶ 6 (alteration in original) (quoting State v.
Loose, 2000 UT 11, ¶ 8, 994 P.2d 1237).

¶21 Third, Defendant contends that the trial court erred in
denying Defendant’s motion for new trial, and asserts that he is
entitled to a new trial because of: (a) the State’s alleged failure to
disclose the details of Friend’s plea deal to Defendant; (b) the
allegedly falsified ammunition receipts; and (c) the court’s ex
parte communication with the jury. As noted above, we review a
trial court’s decision to grant or deny a motion for new trial for
abuse of discretion. Id.

¶22 Finally, Defendant contends that the trial court erred in
denying his request for a mistrial when Officer disclosed to the
jury that Defendant had invoked his right to remain silent. We
will not disturb a trial court’s decision to grant or deny a motion
for mistrial “absent an abuse of discretion.” State v. Harris, 2004
UT 103, ¶ 21, 104 P.3d 1250. 4

4. In his brief, Defendant also raised a number of constitutional
objections to Utah’s statutory sentencing scheme for defendants
convicted of aggravated murder. At oral argument, Defendant
withdrew those objections, and therefore we do not address
them.

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ANALYSIS

I. The Aggravator

¶23 Defendant first contends that the evidence was
insufficient to support a finding that he knowingly placed Father
at “great risk of death” in the course of shooting Son. Arguing
from this premise, Defendant asserts that his murder charge
should be reduced from aggravated murder to murder. We are
unpersuaded.

¶24 “Criminal homicide constitutes aggravated murder if,” in
the course of “intentionally or knowingly caus[ing] the death of
another . . . the actor knowingly created a great risk of death to a
person other than the victim and the actor.” Utah Code Ann.
§ 76-5-202(1)(c) (LexisNexis 2017). Defendant argues that, under
the facts of this case, he did not create a great risk of death to
Father when he shot and killed Son.

¶25 Defendant bases this argument on several contentions.
First, Defendant asserts that the three shots he fired at Son
should be viewed as “acts of independent significance” separate
from both the initial shot Defendant directed at Father and the
random shots Defendant fired at no apparent target outside the
smoke shop. Second, Defendant asserts that at the time
Defendant shot and killed Son, Father was several feet away and
out of Defendant’s direct line of fire, such that the three shots
constituting the murder itself could not have endangered Father.
Third, Defendant asserts that the variety of weapon used to kill
Son, a rifle, presented minimal risk that Father would be
inadvertently injured as compared to the risk that may have
been presented by other potential weapons.

¶26 Before directly addressing the merits of Defendant’s
arguments, it is necessary to frame the discussion by reference to
applicable case law. We are aware of only two Utah cases in
which this aggravator was at issue: State v. Pierre, 572 P.2d 1338

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(Utah 1977), and State v. Johnson, 740 P.2d 1264 (Utah 1987). In
Pierre, the use of the aggravator was upheld, and the State relies
heavily on that case. In Johnson, by contrast, the aggravator was
held to be inapplicable, and Defendant analogizes to that case.

¶27 The Pierre case involved one of the defendants in the “Hi-
Fi Murders” case that made headlines in the 1970s. In that case,
the defendant and his accomplices bound five victims in the
basement of a “Hi-Fi Shop.” Pierre, 572 P.2d at 1343. After
making them drink Drano from a plastic cup, the defendant
forced the victims to lie down and then proceeded to shoot each
of them, one by one, in the back of the head with a handgun,
killing three of them and seriously injuring the other two. Id. At
trial, the defendant was found guilty of aggravated murder, with
the aggravator being that the defendant knowingly created a
great risk of death to the two surviving victims when he
murdered the other three. Id. at 1343, 1353 n.21. Defendant
appealed, contending that, at the time he shot the three victims
who died, there was no evidence that the two victims who
survived were “placed in a great risk of death.” Id. at 1355. Our
supreme court disagreed, concluding that because “the killing of
three victims and the creation of a setting of great risk of death to
the two surviving victims occurred in a brief span of time,” the
defendant’s acts in shooting all five victims “formed a
concatenating series of events.” Id. These events, the court
determined, did not need to be viewed in isolation but could be
viewed as one contiguous course of conduct, and the
defendant’s shots at the two surviving victims did not need to be
considered separately from the defendant’s shots at the other
three victims. Id. Accordingly, the court determined that
application of the aggravator was proper. Id.

¶28 In Johnson, the defendant attacked a husband and wife in
a warehouse basement with a shovel handle, striking the
husband first and then the wife. 740 P.2d at 1265–66. Eventually,
the defendant beat the wife into unconsciousness with the shovel
handle, and then walked over to her husband, who was “on the

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other side of [the] basement” and out of sight behind some
shelves, and beat him with the same shovel handle so severely
that he died. Id. at 1267. At trial, the factfinder found the
defendant guilty of aggravated murder, with the aggravator
being that the defendant knowingly created a great risk of death
to the wife when he beat the husband to death. Id. at 1266. On
appeal, our supreme court reversed, holding that the aggravator
“properly applies to situations in which the defendant kills his
victim in a manner by which he knows he is gravely
endangering others.” Id. The court emphasized that there must
be “a likelihood or high probability of great risk of death created,
not just a mere possibility,” and that there must be “another
person within the ‘zone of danger’ created by [the] defendant’s
conduct.” Id. at 1267 (internal quotation marks omitted) (quoting
State v. Price, 478 A.2d 1249, 1260 (N.J. Super. Ct. Law Div.
1984)). The court stated that “there may be circumstances in
which a defendant may be guilty although the endangered
person is physically removed from the defendant’s conduct,” but
it noted that “such cases require a careful consideration of a
defendant’s intent and knowledge of the risk and the
endangered person’s proximity in time and place to the
murder.” Id. Applying that standard, the court held that the wife
was not “within the zone of danger” because, at the time the
defendant beat her husband to death with a shovel handle, she
was behind shelving on the other side of the basement and in no
immediate danger. Id.

¶29 Defendant argues that the present case is similar to
Johnson, because Defendant was turned away from Father and
“was aiming nearly point blank” at Son, and asserts that
Defendant therefore did not knowingly endanger Father when
he killed Son. The State disputes this characterization, arguing
that Defendant’s first shot at Father should be viewed as
connected to Defendant’s subsequent shots at Son, that Father
was indeed close enough to Son to be “within the zone of
danger” when Defendant shot Son, and that due to the risk of

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ricochets Defendant’s selection of a “high-powered rifle” as a
murder weapon increased the relative risk to Father.

¶30 In presenting these arguments, both Defendant and the
State appear to agree that several factors are relevant in
determining whether the aggravator applies. First, both sides
argue about whether the shot Defendant directed towards Father
should be viewed in isolation from the shots Defendant directed
towards Son, or whether that first shot can be considered as part
of the same course of conduct. Second, both sides make
arguments about the spatial proximity of Father, Son, and
Defendant at the time Defendant shot Son. Finally, both sides
make arguments about the type of weapon used. We agree that
these considerations, while not necessarily exhaustive, are
helpful guideposts in analyzing whether to apply the
aggravator.

¶31 Indeed, our review of both Utah case law and of
persuasive authority from other jurisdictions reveals that judicial
decisions about whether this aggravator applies are often
influenced by three main factors: (1) the temporal (or
chronological) relationship between any actions the defendant
may have taken towards the third party and the acts constituting
the murder; (2) the spatial relationship, or proximity, between
the third party, the murder victim, and the defendant at the time
of the acts constituting the murder; and (3) whether and to what
extent the third party was actually threatened by the assailant,
either by direct threats or by indirect means such as the risk of
stray or ricocheting bullets. See Pierre, 572 P.2d at 1355
(discussing whether the events occurred in a “brief span of time”
such that they formed a “concatenating series of events”);
Johnson, 740 P.2d at 1266 (noting that courts must carefully
consider “defendant’s intent and knowledge of the risk and the
endangered person’s proximity in time and place to the
murder”); see also State v. Johnson, 133 P.3d 735, 748 (Ariz. 2006)
(listing four factors: proximity, timing, “whether the defendant

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intended to kill the third party,” and “whether the defendant
engaged in sufficiently risky behavior toward the third person”).

¶32 Trial courts asked to determine whether to apply this
aggravator should consider and weigh these factors, along with
other factors that may be relevant in a particular case. This list of
factors is not intended to be exhaustive, and no single factor will
necessarily be determinative. In applying these factors, courts
should keep in mind that the factors are merely aids in
answering the overarching question, namely, whether the
defendant knowingly created a great risk, and not just a mere
possibility, of death to a third person. See Utah Code Ann. § 76-5-
202(1)(c) (LexisNexis 2017); Johnson, 740 P.2d at 1267.

¶33 With regard to the first factor, the holding in Pierre makes
plain that, under Utah law, the “great risk of death” does not
necessarily have to be created at the exact moment of the
murder. In other words, the temporal relationship between the
murder and the risk to the third party does not have to be
simultaneous. In Pierre, the defendant shot five people,
individually but seconds apart, in the back of the head with a
handgun at close range. See Pierre, 572 P.2d at 1343. Each
individual shot posed little actual risk to anyone other than the
person to be shot, yet our supreme court held that because the
shots occurred within a “brief span of time” and therefore
constituted a “concatenating series of events,” they could be
considered as part of the same course of conduct. See id. at 1355.
Certainly, the closer the temporal relationship, the more likely
the aggravator will apply. See generally id.; see also State v. Nash,
694 P.2d 222, 235 (Ariz. 1985) (holding that application of a
“grave risk of death to another” aggravator was warranted when
a murderer shot a coin shop clerk, pointed the gun at another
clerk without firing it, and then shot the first clerk several more
times before fleeing). Conversely, the longer the period of time
between a murderer’s acts toward a third party and the acts
constituting the murder, the less likely it will become that the
aggravator will apply. See, e.g., State v. Bowie, 813 So. 2d 377, 394

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(La. 2002) (holding that application of a similar aggravator was
not warranted where a murderer fatally shot one man and then,
hours later, fired a gun into a car occupied by several persons,
because the latter conduct was “temporally” removed from the
murder).

¶34 The second factor—physical or spatial proximity—is
straightforward: the closer a third party is to the murder victim
and/or the defendant at the time of the murder, the more likely it
is that this factor will weigh in favor of application of the
aggravator. Compare Johnson, 740 P.2d at 1267 (holding that a
murder that occurred “on the other side of a basement,
separated from [the third party] by shelving” did not create a
“great risk of death” to the third party), with Pierre, 572 P.2d at
1355 (holding that the murder of three individuals within close
proximity of two survivors weighed in favor of applying the
aggravator); see also State v. Johnson, 133 P.3d 735, 748 (Ariz. 2006)
(holding that the aggravator applied when a murderer fatally
shot a mother while her small child was in the same 10′ by 10′
bedroom with her, even though the murderer did not directly
threaten the child); State v. Fierro, 804 P.2d 72, 83 (Ariz. 1990)
(holding that a murderer created a grave risk of death to his
victim’s girlfriend when he fired several shots at the victim while
the girlfriend was sitting next to the victim in the front seat of a
car). But see State v. Tucker, 160 P.3d 177, 188–89 (Ariz. 2007)
(holding that a defendant who shot and killed two people did
not create a grave risk of death to a baby sleeping in the same
room five or six feet away from the victims).

¶35 Finally, with respect to the third factor, courts should
examine whether and to what extent the third party was actually
threatened with harm during the course of the murderous
events. This is a fact-intensive inquiry whose application will
vary from case to case. In some cases, a threat is obvious: if the
defendant shoots at, points a weapon at, or otherwise directly
threatens the third party during the course of the murder, this
factor will weigh in favor of applying the aggravator. See Pierre,

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State v. Sosa-Hurtado

572 P.2d at 1343, 1355 (the two surviving victims were actually
shot by the defendant just seconds apart from the murders, and
the aggravator applied); Nash, 694 P.2d at 235 (the defendant
pointed a gun at the third party immediately after and
immediately before shooting the murder victim, and the
aggravator applied). In other cases, the threat may be less
obvious but perhaps present nonetheless, as in cases where a
third party may be at risk of harm from a stray or ricocheting
bullet. In analyzing this factor’s applicability, courts may
consider things like the type of weapon used (using a gun is
different than beating a victim with fists or a shovel handle), the
manner in which the defendant deployed the weapon (spraying
a crowd with gunfire is different than training the weapon on
one person), and any damage the third party may have actually
sustained. See Johnson, 740 P.2d at 1265–66 (holding that a third
party was not endangered when a defendant beat his victim to
death with a shovel handle on the other side of the basement);
see also Richardson v. State, 376 So. 2d 205, 223 (Ala. Crim. App.
1978) (holding that placing a bomb on a family’s porch “created
a great risk of death to many persons,” and therefore applying a
more rigorous aggravator than the one contemplated in this case
(emphasis added)); State v. Watson, 586 P.2d 1253, 1260 (Ariz.
1978) (holding that application of a “grave risk of death to
another” aggravator was not warranted when a murderer
isolated and killed his victim shortly after all relevant third
parties had escaped the scene).

¶36 When we consider these factors in the context of this case,
we are persuaded that there was sufficient evidence to support
the trial court’s decision to allow the aggravator to be presented
to the jury. Defendant shot at Father mere seconds before
shooting and killing Son, a brief span of time that supports
viewing the shots as part of the same “concatenating series of
events.” See Pierre, 572 P.2d at 1355. Further, Father was no more
than seven feet away from Son, and some five feet away from
Defendant, when Defendant shot Son—in close enough physical
proximity that Father could feel the muzzle blast from the shots

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targeting Son. Even though Father was not in the direct line of
fire at the time Defendant shot Son, his close physical proximity
to Defendant and Son at the time Defendant shot Son, coupled
with the fact that Defendant had actually fired a shot at Father
just seconds earlier, is sufficient for Father to properly be
considered within the “zone of danger.” See Johnson, 740 P.2d at
1267. Finally, Defendant did more than merely make verbal
threats or point a gun at Father—Defendant actually fired a rifle
shot at Father at close range just seconds before he shot Son,
narrowly missing Father but causing wood and glass shrapnel to
hit him.

¶37 In light of all of this evidence, we hold that the trial court
did not err in denying Defendant’s motion at the close of the
State’s case-in-chief. All three of the factors weigh in favor of
application of the “great risk of death” aggravator, and therefore
there exists sufficient evidence upon which a jury could base a
finding that Defendant, in the course of murdering Son,
knowingly placed Father at great risk of death.

II. The Motion for New Trial

¶38 Defendant next contends that the trial court erred, as a
matter of procedure, when it declined to consider both
Defendant’s amended motion for new trial and the affidavits
and exhibits filed subsequent to his original motion for new trial.
Defendant also contends that the trial court erred, as a matter of
substance, when it denied his motion for new trial. We examine
these objections in turn.

A

¶39 Under the terms of the applicable rule, Defendant had ten
days following sentencing to move for a new trial. See Utah R.
Crim. P. 24(c) (2007). The rule required any such motion to “be
accompanied by affidavits or evidence of the essential facts in
support of the motion.” Id. R. 24(b) (2007). If Defendant needed

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additional time to file his motion, or to procure affidavits or
evidence to support his motion, Defendant was free to petition
the court to provide him with additional time. Id. R. 24(b)–(c)
(2007). In this case, Defendant made no such request at any time.
Instead, Defendant filed a motion for new trial within the
deadline that cited to the trial transcript but was otherwise
unaccompanied by any attachments or other evidence. Then,
without seeking leave from the trial court, and after the filing
deadline had expired, Defendant filed several affidavits and
exhibits intended to be supportive of his motion. Finally, months
after the filing deadline had expired, Defendant attempted to file
an amended motion for new trial, incorporating all of the later-
filed materials. The district court refused to consider the
untimely filed materials, and chose to limit its review solely to
Defendant’s original motion for new trial and the trial transcript.
Defendant asserts that the trial court’s refusal to consider his
later-filed exhibits and supplemental materials was erroneous.

¶40 Defendant’s argument is foreclosed by this court’s ruling
in State v. Mitchell, 2007 UT App 216, 163 P.3d 737. In that case, a
defendant timely filed a one-paragraph motion for new trial
after his sentencing. Id. ¶ 3. The motion alleged juror misconduct
and referred to newly discovered evidence inconsistent with a
witness’s trial testimony, but was not actually supported by any
attached affidavits or other evidentiary materials. Id. A few
weeks later, after the original filing deadline had elapsed, the
defendant filed a “request for an extension of time in order to
submit evidentiary support.” Id. The trial court did not
immediately act on the request for an extension of time, but
nevertheless, over the course of several months, the defendant
filed additional affidavits in support of his motion for new trial.
Id. ¶ 4. The trial court ultimately refused to consider the
additional affidavits, and denied the defendant’s motion. Id. ¶ 5.

¶41 On appeal, we affirmed the trial court’s decision, stating
that the court “did not exceed the permitted range of its
discretion when it denied [the defendant’s] motion for a new

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trial as untimely and incomplete.” Id. ¶ 13. We noted that, while
rule 24 of the Utah Rules of Criminal Procedure allows a party to
ask for an extension of time within which to file its motion or
any accompanying materials, see id. ¶ 10 (citing Utah R. Crim. P.
24(b) and (c) (2005)), a request for any such extension under
subsection (c) must be made within the original filing period, id.
¶ 11, and the decision to grant a request under either subsection
remains entirely within the trial court’s discretion, id. ¶ 12 & n.2;
see also Utah R. Crim. P. 24(b) (2007) (stating that the trial court
“may postpone the hearing on the motion” to allow the filing of
additional affidavits “for such time as it deems reasonable”
(emphasis added)); id. R. 24(c) (2007) (stating that a motion for
new trial must be filed within ten days “or within such further
time as the court may fix” (emphasis added)). In Mitchell, the
defendant made no timely request for an extension of time. See
Mitchell, 2007 UT App 216, ¶ 3. Accordingly, we held that neither
the defendant’s untimely “request for additional time to file
affidavits nor the actual filing of his affidavits operates to render
his original motion complete and timely,” and that the trial court
did not abuse its discretion in refusing to consider the late-filed
materials. Id. ¶ 13.

¶42 In this case, unlike the defendant in Mitchell, Defendant
made no request at all—whether timely or untimely, or whether
under rule 24(b) or rule 24(c)—for an extension of time to file his
amended motion or additional materials. He simply filed them
without asking for permission to do so. The trial court refused to
allow those late-filed affidavits, and in light of our decision in
Mitchell we cannot conclude that the trial court abused its
discretion in so doing. 5

5. In complex cases, it might seem unrealistic to expect a
defendant to prepare and file a motion for new trial, including
all supporting documentation, within ten (or fourteen) days after
sentencing. However, in most cases, a defendant will know very
soon after the jury’s verdict that he or she might want to move
(continued…)

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State v. Sosa-Hurtado

¶43 Defendant argues that, “once an initial timely showing is
made that the defendant has a substantially compliant motion
for new trial, . . . unless the State has some legitimate objection,
affidavits and other materials filed after the [filing of] the initial
[m]otion should be accepted unless such filing delays an
evidentiary hearing.” To be sure, it would have been well within
the trial court’s discretion to accept the late-filed materials. But
the rule for which Defendant advocates—a presumption that
late-filed materials should be accepted by the trial court—is at
odds with this court’s decision in Mitchell determining that such
decisions lie within the sound discretion of the trial court.

¶44 Defendant has not demonstrated, on the facts of this case,
that the trial court abused its discretion when it refused to
consider Defendant’s untimely filed addenda and amended
motion. We therefore find no occasion to disturb that ruling.

B

¶45 Despite refusing to consider the late-filed materials, the
trial court did review and make a ruling upon the merits of
Defendant’s motion for new trial, considering only the
memoranda filed by the parties as well as the trial transcript.
Defendant contends that the court erred when it denied that
motion on its merits, and maintains that he is entitled to a new
trial for three reasons: (a) the State violated his constitutional
rights by failing to disclose the details of its plea deal with

(…continued)
for a new trial, and in many cases, sentence is not imposed until
six or seven weeks following the verdict. As a practical matter,
then, a defendant will usually have significantly longer than ten
(or fourteen) days to prepare a motion for new trial. In this case,
for instance, sentencing occurred forty-one days after the verdict,
and Defendant therefore had more than fifty days, even without
an extension, to prepare his motion for new trial.

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Friend; (b) the State prejudiced Defendant’s case by presenting
falsified evidence in the form of the four ammunition receipts;
and (c) the court’s ex parte communication with the jury
prejudiced Defendant. We find none of Defendant’s arguments
persuasive.

1

¶46 First, Defendant asserts that he was entitled to a new trial
because the State allegedly failed to disclose the full details of its
plea agreement with Friend, thus violating Defendant’s
constitutional rights. It is well-established that prosecutors must
disclose to defendants all exculpatory evidence in their
possession, see Brady v. Maryland, 373 U.S. 83, 87 (1963), and that
this duty includes an obligation to disclose any plea bargains
that the State may have reached with witnesses, see Giglio v.
United States, 405 U.S. 150, 154–55 (1972). However, “[w]hen
claiming that the prosecution’s failure to disclose evidence
requires a new trial . . . a defendant must show” not only that the
State failed to disclose evidence, but also that: (1) the
undisclosed evidence is “‘favorable to the accused, either
because it is exculpatory, or because it is impeaching’”; (2) the
evidence has been “‘suppressed by the State, either willfully or
inadvertently’”; and (3) prejudice has ensued. See State v. Pinder,
2005 UT 15, ¶ 24, 114 P.3d 551 (quoting Strickler v. Greene, 527
U.S. 263, 281–82 (1999)).

¶47 Here, Defendant maintains that the State suppressed
some of the details surrounding its plea agreement with Friend.
Specifically, Defendant asserts that, when asked at trial if
Friend’s separate aggravated burglary charge was being
dismissed in exchange for Friend’s testimony in this case, the
State clarified that the dismissal of Friend’s aggravated burglary
charge was conditioned in part on Friend testifying truthfully
against Defendant in the aggravated burglary case. Defendant
claims that, in fact, the State intended to dismiss Friend’s
aggravated burglary charge solely in exchange for Friend’s

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testimony in this case, and that the State failed to disclose this
information when Defendant’s counsel asked about the details of
the plea deal. 6 Accordingly, Defendant maintains he is entitled to
a new trial. We disagree.

¶48 First, we note that “courts universally refuse to overturn
convictions where the evidence at issue is known to the defense
prior to or during trial” or “where the defendant reasonably
should have known of the evidence.” Id. ¶ 25 (citing State v.
Bisner, 2001 UT 99, ¶ 33, 37 P.3d 1073 (internal quotation marks
omitted)). 7 At trial, Defendant’s counsel indicated that Friend’s
counsel had informed him that Friend’s aggravated burglary
charge would be dismissed solely in exchange for Friend’s
testimony in the present case. Because of this, even if the terms
of the plea agreement were as Defendant alleges, and even if the
State improperly failed to disclose those terms, Defendant knew
or reasonably should have known all of the relevant details of
the arrangement through his counsel’s discussions with Friend’s
counsel.

6. As a threshold matter, we note that some of Defendant’s
untimely-filed addenda to his motion for new trial purportedly
provided further evidence on this issue. Because we have
already determined the trial court did not abuse its discretion
when it refused to consider Defendant’s untimely filings, we
consider only the facts which were properly before the court,
chiefly the facts presented in the trial transcript itself.

7. “We are aware that some federal circuits do not read Brady” to
permit a prosecutor to disclose exculpatory evidence during
trial. State v. Mitchell, 2013 UT App 289, ¶ 34 n.5, 318 P.3d 238
(citing United States v. Burke, 571 F.3d 1048, 1054 (10th Cir. 2009)).
“However, Pinder controls our decision here and we do not look
beyond it.” Id.

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¶49 Moreover, we note that even had Defendant not known
the true details of Friend’s plea deal with the State, and even if it
were clear that the State suppressed those details, there is no
evidence that Defendant sustained any prejudice as a result.
Indeed, the jury in this case already knew from Defendant’s
cross-examination of Friend that Friend was also charged with
murder and discharge of a firearm in this case, and that, by
testifying against Defendant, Friend was receiving a favorable
plea deal. Previously we have held that, where a jury is already
aware that a codefendant is receiving a plea deal in exchange for
his testimony, “[t]he mere possibility of a more favorable deal
for [a codefendant]” does “not substantially affect [that
codefendant’s] credibility as a witness.” State v. Howell, 2016 UT
App 90, ¶ 14, 374 P.3d 1032. In this case, Defendant fails to
convincingly demonstrate that making the jury aware of one
more charge that would purportedly be dismissed in exchange
for Friend’s testimony would have materially altered the jury’s
view of Friend’s credibility, much less that it would have
materially altered the overall outcome at trial.

¶50 Finally, we note that Defendant’s counsel had a
compelling tactical reason to refrain from further exploring the
details of Friend’s plea arrangement. As the State noted during
the sidebar, Defendant was charged as a codefendant for the
same aggravated burglary as Friend, so inquiring further into
Friend’s plea deal with respect to the aggravated burglary
charge may have opened the door for the State to inform the jury
that Defendant had been charged with aggravated burglary as
well. Upon considering this possibility, Defendant’s counsel
indicated that he believed “open[ing] that door” would
constitute ineffective assistance of counsel, and thus he declined
to inquire further into the details of the plea deal. We agree with
Defendant’s trial counsel that there was a plausible tactical basis
for counsel to refrain from making further inquiry into the
details of Friend’s plea agreement. Accordingly, “where the
defense had the opportunity to use . . . evidence to its advantage
during trial but [fails] to do so,” we do not overturn a conviction

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based on the alleged suppression of that evidence. Bisner, 2001
UT 99, ¶ 33.

¶51 Under these circumstances, the trial court did not err
when it determined that Defendant was not entitled to a new
trial because of any issue with the State’s disclosure of the terms
of Friend’s plea bargain.

2

¶52 Defendant next asserts that he was entitled to a new trial
due to the State’s actions in attempting to introduce the
ammunition receipts. Defendant contends on appeal that the
State “doctored” the receipts to implicate Defendant and that
their introduction at trial was “so outrageous as to shock the
conscience,” thus meriting remand for a new trial under State v.
Colonna, 766 P.2d 1062, 1066 (Utah 1988) (noting that an officer’s
egregious conduct may constitute a due process violation
warranting reversal of a conviction). However, Defendant’s
motion for new trial was accompanied by no timely evidence
supporting this claim. Further, Defendant received everything
that he asked for on this issue at trial: the evidence was
excluded, the trial court admonished the jury not to consider it,
and the State apologized to the jury for its introduction. Under
these circumstances, the trial court did not abuse its discretion in
determining that Defendant was not entitled to a new trial on
the grounds that the State had allegedly “doctored” the receipts.

3

¶53 Finally, Defendant asserts he was entitled to a new trial
on the basis that he was prejudiced by the judge’s ex parte
communication with the jurors, in which the judge asked the
jurors whether they would be finished deliberating soon or
whether the jury would need to continue deliberations the next
day. Defendant contends that this communication was
prejudicial because it could have influenced the jury to end its

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deliberations by 5:00 p.m., and argues that the jury might not
have found him guilty if it had deliberated longer. Defendant
cites Remmer v. United States, 347 U.S. 227, 229 (1954) (holding
that ex parte communications with the jury are “deemed
presumptively prejudicial” if not made pursuant to court rules,
instructions, or directions of the court “with full knowledge of
the parties”), and asserts that, at minimum, the trial court should
have presumed that prejudice occurred and held a hearing to
determine whether the court’s communication actually
prejudiced the jury.

¶54 However, as the State notes, our supreme court has
clarified that prejudice is not automatically presumed where it is
the judge—rather than someone else—who communicates ex
parte with a jury. See State v. Maestas, 2012 UT 46, ¶ 69, 299 P.3d
892 (declining to “automatically presume prejudice where a
judge communicates ex parte with the jury,” and noting that
“‘[t]here is scarcely a lengthy trial in which one or more jurors
do not have occasion to speak to the trial judge about something,
whether it relates to a matter of personal comfort or to some
aspect of the trial’” (quoting Rushen v. Spain, 464 U.S. 114, 118
(1983)). Indeed, where “the judge’s communication with the jury
[does] not involve any substantive issues,” but instead is “brief
and deal[s] with the timing of the jury’s dismissal for the day,”
our supreme court has indicated that a presumption of prejudice
is not warranted, especially where “the judge appropriately
disclose[s] the communication” to both parties at trial “and
neither [party] [objects] to the interaction.” Id. ¶ 70. In this case,
the trial court’s discussion with the jurors closely resembles the
benign conversation described in Maestas: it was brief, it did not
touch on any substantive issues, it dealt with the timing of the
jury’s dismissal for the day, and it was disclosed to both parties
very soon thereafter, with no objection lodged by either side.
Accordingly, the trial court did not err when it did not presume
prejudice arising from its scheduling communication with the
jury, nor did it abuse its discretion in determining that

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Defendant was not entitled to a new trial on the basis of that
communication.

III. Motion for Mistrial

¶55 Finally, Defendant contends that the trial court erred
when it denied his motion for a mistrial after Officer’s revelation
to the jury that Defendant invoked his constitutional right to
remain silent after being apprehended. Typically, we will
reverse a court’s denial of a motion for mistrial only if the record
“clearly shows” that the incident alleged to be grounds for the
mistrial “so likely influenced the jury that the defendant cannot
be said to have had a fair trial.” State v. Butterfield, 2001 UT 59,
¶ 46, 27 P.3d 1133 (citation and internal quotation marks
omitted). Defendant has not satisfied this standard.

¶56 Defendant correctly argues that the State may not use his
post-arrest silence against him. See Doyle v. Ohio, 426 U.S. 610,
617–20 (1976) (holding that the “assurance that silence will carry
no penalty” is “implicit to any person” and that using a
defendant’s silence to impeach that defendant violates due
process). However, “mere mention that a defendant invoked his
constitutional rights does not prima facie establish a due process
violation.” State v. Harmon, 956 P.2d 262, 268 (Utah 1998). Rather,
“Doyle rests on the fundamental unfairness of implicitly assuring
a suspect that his silence will not be used against him and then
using his silence to impeach an explanation subsequently offered
at trial.” Greer v. Miller, 483 U.S. 756, 763 (1987) (citation and
internal quotation marks omitted). Because of this, we “look at
the circumstances in which a criminal defendant’s post-arrest
silence . . . is revealed in court in order to determine whether the
purposes underlying the rule in Doyle have been undermined.”
Harmon, 956 P.2d at 268 (citation and internal quotation marks
omitted). Further, even if we find that the rule established in
Doyle has been violated, we will not reverse a conviction if the
violation is harmless “beyond a reasonable doubt.” State v. Maas,

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1999 UT App 325, ¶ 14, 991 P.2d 1108 (citation and internal
quotation marks omitted).

¶57 Here, Defendant alleges that Officer’s statement
indicating that Defendant invoked his right to remain silent was
used to impeach Defendant, placing it squarely within Doyle’s
prohibition. However, Defendant fails to explain how Officer’s
statement actually operated to impeach him. Indeed, Defendant
makes no effort to tie Officer’s statement to any particular
statement or position of Defendant’s that Defendant’s post-arrest
silence was used to impeach. Neither Officer nor the State ever
related Officer’s statement to any particular action or statement
by Defendant, and no party made any mention of Officer’s
statement again during the trial. We simply cannot see how
Officer’s statement was used to impeach Defendant in any way.

¶58 Further, even if we assume, for the sake of argument, that
Officer’s statement was somehow used to impeach Defendant,
we have no difficulty concluding that any such impeachment
was harmless beyond a reasonable doubt. Officer’s statement
was brief, comprising just three lines in the trial transcript, and
came after the jury had already heard evidence from several
witnesses establishing Defendant’s conduct prior to and during
the murder. The State did not refer to Defendant’s silence at any
other time during the entirety of the trial, and at the time the
comment was made it did not concern any narrative that
Defendant offered or eventually would offer at trial. Further, the
trial court offered to issue a curative instruction to the jury,
which offer Defendant refused. Against this backdrop, and given
the strength of the evidence supporting Defendant’s conviction,
we are persuaded that any possible violation of Defendant’s
rights occasioned by Officer’s statement was harmless beyond a
reasonable doubt. See State v. McCallie, 2016 UT App 4, ¶¶ 36, 38,
369 P.3d 103 (categorizing a Doyle violation as harmless beyond
a reasonable doubt where the violation was an “isolated
reference” and the prosecution’s case was otherwise strong), cert.
granted, 384 P.3d 567 (Utah 2016).

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CONCLUSION

¶59 The jury’s verdict convicting Defendant of murder and
applying the aggravator that in the course of the murder
Defendant knowingly created a great risk of death to Father was
supported by the evidence. Further, the trial court did not abuse
its discretion when it refused to consider late-filed addenda to
Defendant’s motion for new trial, or when it denied that motion
on its merits. And the trial court did not err in denying
Defendant’s motion for mistrial. Accordingly, we affirm
Defendant’s convictions.

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