State v. Makaya

2020 UT App 152

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
NEPHI ADELINO MAKAYA,
Appellant.

Opinion
No. 20180989-CA
Filed November 5, 2020

Third District Court, Salt Lake Department
The Honorable Ann Boyden
No. 171903822

Teresa L. Welch, and Alexandra S. McCallum,
Attorneys for Appellant
Sean D. Reyes and Thomas Brunker, Attorneys
for Appellee

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

HAGEN, Judge:

¶1 Nephi Makaya caused the death of his pregnant girlfriend
by driving his SUV around the warning gates and onto the
tracks of an oncoming FrontRunner train. 1 Makaya was charged

1. Unlike Utah Transit Authority’s (UTA’s) electrically-powered
TRAX light rail system, UTA’s FrontRunner is a traditional
commuter train that runs along an 89-mile corridor between
Provo and Ogden. FrontRunner trains consist of a diesel-
powered locomotive and three or four bi-level and single-level
passenger cars. These trains weigh upward of 360 tons and can
(continued…)
State v. Makaya

with manslaughter and convicted by a jury. On appeal, Makaya
contends his trial counsel rendered ineffective assistance when
counsel did not move for a directed verdict acquitting him of
manslaughter. He asks that we set aside his manslaughter
conviction and enter a conviction for the lesser-included offense
of negligent homicide. Because Makaya cannot establish a
violation of his constitutional right to counsel, we affirm.

BACKGROUND 2

¶2 After waiting briefly at the activated guard gate of a
FrontRunner train crossing, Makaya put his SUV in reverse,
backed up 115 feet in the westbound lane, drove around a
concrete median, and proceeded down the empty eastbound
lane against the normal flow of traffic to bypass the gates and
cross the train tracks. Immediately upon entering the tracks,
Makaya’s SUV was broadsided by a 735,000 pound FrontRunner
train. 3 Makaya’s girlfriend, who was eight months pregnant and
riding in the passenger seat, was thrown from the car and killed.
A bystander, who was a nurse, performed chest compressions on

(…continued)
reach speeds of up to 79 miles per hour. FrontRunner, UTA,
https://www.rideuta.com/Services/FrontRunner [https://perma.c
c/ML3Q-PYX4].

2. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.”
State v. Jones, 2020 UT App 31, ¶ 2 n.1, 462 P.3d 372 (cleaned up).

3. The driver of the FrontRunner train testified that he never saw
a vehicle and realized a collision had occurred only when
something “flashed in front of [him]” and there was “a loud jolt”
and “debris flying out, flying around.”

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State v. Makaya

Makaya’s girlfriend to keep her unborn baby alive until
paramedics arrived. The infant survived but suffered a
prolonged lack of oxygen leading to potential long-term
complications.

¶3 Makaya told the investigating officer that, when he and
his girlfriend pulled up to the railroad crossing at the
intersection of 600 West and 900 South in Salt Lake City, the
warning gates were down and the warning lights were flashing,
indicating that a train was coming. Makaya claimed that they sat
“[at the warning gates] for . . . quite some time, a couple [of]
minutes,” and that after waiting awhile they initially decided to
turn around and “go a different way.” But then, Makaya
claimed, his girlfriend told him to “just go around” the barriers.
So Makaya backed up, went around the concrete median
separating the two lanes, and drove west down the eastbound
lane of 900 South. The investigation showed that this would
have required backing up about 115 feet.

¶4 A representative of UTA responsible for the oversight of
train line-and-signal systems testified that, based on UTA
records, the gates had been down for only 16.84 seconds
before the train entered the edge of the roadway. The
representative testified that federal regulations require a
“minimum of 20 seconds[’] warning time to the public” and that
the FrontRunner gates at 900 South are programmed to start the
signal process 27 seconds before the approach of a train. This
process consists of a warning period of flashing lamps followed
by the descent of warning gates. Although the records showed
that the warning gates at 900 South had previously descended
for the passing of a Union Pacific train, the gates had been raised
for over two minutes before descending again for the
FrontRunner train.

¶5 A video of the collision recorded by a camera on the train
indicates that Makaya did not steer away from the train or apply

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State v. Makaya

his brakes before the collision. The State presented evidence that,
even after clearing the concrete median and proceeding west
down the eastbound lane, Makaya still had double the distance
needed to see the warning gates, apply his brakes, and stop
before reaching the tracks. But he appeared to have done the
opposite. Makaya was traveling approximately 27 to 29 miles
per hour upon impact and, according to an expert in accident
reconstruction, the only way he could have reached that speed
was if he pushed the gas pedal “pretty well to the floor” after
clearing the median.

¶6 The State charged Makaya with various offenses
and proceeded to trial on one count of manslaughter. 4 At
trial, Makaya argued that he was guilty of negligent
homicide, but not manslaughter, because he had acted
with only criminal negligence, not recklessness. The trial
judge instructed the jury on both manslaughter and the
lesser-included offense of negligent homicide. Although
manslaughter and negligent homicide both require proof that
the defendant unlawfully caused the death of another,
manslaughter requires that the defendant did so “recklessly”
while negligent homicide requires that the defendant did so
“with criminal negligence.” See Utah Code Ann. §§ 76-5-205, -206
(LexisNexis Supp. 2020). 5 The jury convicted Makaya of
manslaughter.

4. The State also charged Makaya with three lesser offenses
related to driving without a license, insurance, or registration; he
was convicted of driving on a revoked license, and the insurance
and registration charges were dismissed. His conviction for
driving on a revoked license is not at issue in this appeal.

5. Because the pertinent language of the statute has not changed,
we cite the current version for convenience.

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State v. Makaya

ISSUE AND STANDARD OF REVIEW

¶7 Makaya appeals his conviction, claiming there was
insufficient evidence to support a conviction for manslaughter
rather than negligent homicide. Makaya admits this issue is
unpreserved because his counsel did not move for a directed
verdict at trial, but asks that we review it under the ineffective
assistance of counsel exception to our preservation requirement.
See State v. Johnson, 2017 UT 76, ¶¶ 15, 19, 416 P.3d 443
(addressing our preservation requirement and the exceptions
our courts have recognized). Makaya argues that he received
constitutionally ineffective assistance because his trial counsel
did not move for a directed verdict on the manslaughter charge.
Where, as here, “a claim of ineffective assistance of counsel is
raised for the first time on appeal, there is no lower court ruling
to review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of
law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587
(cleaned up).

ANALYSIS

¶8 Makaya contends that his trial counsel was ineffective in
failing to move for a directed verdict at the close of the State’s
case because the State presented insufficient evidence that he
was aware of the risk of hitting a train. To assess whether a
defendant’s constitutional right to the effective assistance of
counsel has been violated, “we apply the two-part test
articulated in Strickland v. Washington, 466 U.S. 668.” State v.
Florez, 2020 UT App 76, ¶ 40, 465 P.3d 307 (cleaned up). A
defendant “must be able to demonstrate (1) that [trial] counsel’s
performance was deficient, in that it fell below an objective
standard of reasonableness, and (2) that this deficient
performance prejudiced the defense by giving rise to a
reasonable probability that, but for counsel’s unprofessional

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State v. Makaya

errors, the result of the proceeding would have been different.”
Id. (cleaned up).

¶9 In this case, Makaya cannot establish either deficient
performance or prejudice, because a motion for a directed
verdict had no chance of success. A futile motion necessarily
fails both the deficiency and prejudice prongs of the Strickland
analysis because it is not unreasonable for counsel to choose not
to make a motion that would not have been granted, and
forgoing such a motion does not prejudice the outcome. As a
result, “the failure of counsel to make motions or objections
which would be futile if raised does not constitute ineffective
assistance.” State v. Alzaga, 2015 UT App 133, ¶ 73, 352 P.3d 107
(cleaned up); see also State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546
(“Failure to raise futile objections does not constitute ineffective
assistance of counsel.”).

¶10 A motion for a directed verdict based on insufficiency of
the evidence is futile when, “upon reviewing the evidence and
all the inferences that can be reasonably drawn from it,” a court
can find that “some evidence exists from which a reasonable jury
could find that the elements of the crime had been proven
beyond a reasonable doubt.” State v. Doyle, 2018 UT App 239,
¶ 11, 437 P.3d 1266 (cleaned up). In such cases, “trial counsel’s
decision not to raise a futile motion for a directed verdict would
not be deficient performance.” State v. Baer, 2019 UT App 15, ¶ 7,
438 P.3d 979 (cleaned up). On the other hand, “[i]f the State
presents no competent evidence from which a reasonable jury
could find the elements of the relevant crime, then trial counsel
should move for a directed verdict and the failure to do so
would likely constitute deficient performance.” Id. (cleaned up).

¶11 A motion for a directed verdict would have been futile in
Makaya’s case because the State presented sufficient evidence
from which a reasonable jury could find the elements of
manslaughter beyond a reasonable doubt. Both manslaughter

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State v. Makaya

and negligent homicide require proof that the defendant
unlawfully caused the death of another. Compare Utah Code
Ann. § 76-5-205 (LexisNexis Supp. 2020), with id. § 76-5-206. The
distinction between the two crimes turns on the defendant’s
mental state, or mens rea. Manslaughter requires proof that the
defendant acted recklessly. Id. § 76-5-205. In contrast, negligent
homicide only requires proof that the defendant acted with
criminal negligence. Id. § 76-5-206. In a different provision, our
legislature explained the two differing mens rea concepts in this
way:

A person engages in conduct

...

(3) Recklessly with respect to circumstances
surrounding his conduct or the result of his
conduct when he is aware of but consciously
disregards a substantial and unjustifiable risk that the
circumstances exist or the result will occur. The
risk must be of such a nature and degree that its
disregard constitutes a gross deviation from the
standard of care that an ordinary person would
exercise under all the circumstances as viewed
from the actor’s standpoint.

(4) With criminal negligence or is criminally
negligent with respect to circumstances
surrounding his conduct or the result of his
conduct when he ought to be aware of a substantial
and unjustifiable risk that the circumstances exist or
the result will occur. The risk must be of a nature
and degree that the failure to perceive it constitutes
a gross deviation from the standard of care that an
ordinary person would exercise in all the
circumstances as viewed from the actor’s
standpoint.

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Id. § 76-2-103(3)–(4) (LexisNexis Supp. 2020) (emphasis added).

¶12 Stated another way, the distinction between manslaughter
and negligent homicide is “whether one perceives the risk or
doesn’t perceive the risk.” State v. Ontiveros, 835 P.2d 201, 206
(Utah Ct. App. 1992). The “defendant’s perception of the risk
presents a conjecture-laden inquiry” where “the jury must not
only determine the defendant’s subjective intent, but must also
decide whether an ordinary person who was aware of the risk
would act in spite of the risk.” State v. Singer, 815 P.2d 1303, 1307
(Utah Ct. App. 1991).

¶13 In Makaya’s case, the district court instructed the jury on
the elements of both the charged offense of manslaughter and
the lesser-included offense of negligent homicide. The court also
instructed the jury on the difference between reckless conduct
and criminally negligent conduct. Jury instruction 16 read, in
pertinent part, as follows:

The concepts of “recklessness” and “criminal
negligence” are similar in that both require the
presence of a substantial and unjustifiable risk.
They differ in that it is reckless to act if one is aware
of the risk, while it is criminally negligent to act if
one should be aware of the risk. In either event, the
behavior must be a gross deviation from what an
ordinary person would do under the same
circumstances.

So long as the evidence supported a reasonable inference that
Makaya not only should have been aware of a substantial and
unjustified risk of death but was aware of that risk and
consciously disregarded it, a directed verdict motion on the
manslaughter charge would have been denied.

¶14 Here, the State presented ample evidence from which a
reasonable jury could find beyond a reasonable doubt that

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Makaya was aware of the risk of death posed by driving his car
around the warning gates and across the train tracks. As Makaya
acknowledges, the crossing arms were lowered, with lights
flashing, when he approached the train crossing. Although
Makaya told the investigating officer that he had waited “two to
three minutes” without seeing a train, the evidence showed that
the warning system was not activated until 27 seconds before the
train’s arrival. Before that, the gates had been open for at least
two minutes. Makaya also admitted that he backed up and
drove around “the concrete barrier and into the opposite side of
traffic to get across the crossing.” The State presented evidence
that this maneuver entailed backing up around a 115-foot
barrier, and then proceeding the wrong way down the
eastbound lane of traffic. A reasonable jury could conclude that
Makaya was aware of and consciously disregarded a substantial
and unjustifiable risk of death from encountering a train on the
tracks when he saw the lowered crossing gates and lights
flashing but nonetheless chose to back up and proceed down the
opposite lane of traffic to bypass the safety devices.

¶15 Additionally, an expert in accident reconstruction testified
that, to reach the speed the SUV was going at the time it reached
the tracks, Makaya must have pushed the gas pedal “pretty well
to the floor.” The expert further testified that, after Makaya
drove around the median and began to accelerate down the
eastbound lane of traffic, he still would have had enough
roadway to brake and stop before the tracks. But there was no
evidence he had attempted to do so. A reasonable juror could
infer that flooring the gas pedal rather than stopping to see if a
train was coming meant Makaya was trying to beat a train and
knew that his actions created a substantial and unjustified risk of
death to his passenger.

¶16 Makaya asserts that the jury’s verdict was based on
“speculation and conjecture” rather than reasonable inferences
because the evidence showed he was not aware of the train’s

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approach and the risk it presented. To be sure, the jury heard
evidence that could have supported the defense theory that
Makaya “did not perceive the risk of fatally injuring Girlfriend
by driving through the grade crossing.” For example, Makaya
told the investigating officer that he “thought they had waited a
long time for a train to arrive and saw no train,” which could
have supported an inference that he thought the safety devices
had malfunctioned and that no train was actually coming. There
was also evidence to support his claim that he never saw the
train because he was “multitasking several driving procedures”
and had “limited visibility.” According to Makaya, even the fact
that he “pushed the gas pedal to the floor as he traveled through
the gate crossing” could support an inference “that he did not
know that the train was approaching.”

¶17 But the evidence Makaya points to does not preclude a
reasonable inference that he was aware of the substantial and
unjustified risk created by his conduct. Instead, Makaya has only
pointed to conflicting evidence of his state of mind, which “alone
cannot justify taking the case away from the jury.” State v. Torres,
2018 UT App 113, ¶ 21, 427 P.3d 550. Indeed, whether Makaya
saw the train is not dispositive of whether he consciously
disregarded a known risk. The State presented evidence that
Makaya disregarded the lowered crossing arms and flashing
lights, backed up around a median, drove into the oncoming
lane of traffic, and sped toward the activated warning gates
rather than cautiously approaching the crossing. Even if he
never saw the train, a reasonable jury could conclude beyond a
reasonable doubt that Makaya was aware of but consciously
disregarded a substantial and unjustifiable risk of causing his
girlfriend’s death.

¶18 Given the evidence presented at trial, a directed verdict
motion would have been denied. Because failure to raise a futile
motion does not constitute ineffective assistance of counsel,

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Makaya’s attorney did not render ineffective assistance by
choosing not to make such a motion.

CONCLUSION

¶19 Because a reasonable jury could have concluded that
Makaya consciously disregarded a known risk by driving his
SUV around the warning gates and onto the FrontRunner tracks,
a directed verdict motion would have been futile. Counsel’s
decision not to make a futile motion does not constitute
ineffective assistance. Therefore, we affirm Makaya’s conviction.

20180989-CA 11 2020 UT App 152