State v. Reyos

2017 UT App 132

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
FRANK PAUL REYOS,
Appellant.

Opinion
No. 20150338-CA
Filed July 28, 2017

Third District Court, Salt Lake Department
The Honorable Robin W. Reese
No. 121909903

Herschel Bullen, Attorney for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN concurred.

TOOMEY, Judge:

¶1 A sixteen-year-old boy (Victim) was shot and killed, and
his body was left in a ditch by people he considered friends. In
connection with Victim’s death, Frank Paul Reyos was convicted
of aggravated murder and possession or use of a firearm by a
restricted person. He appeals his convictions, and we affirm.
State v. Reyos

BACKGROUND

¶2 Late one Saturday night,1 Mary2 texted Victim from a
party at an East Side Salt Lake City residence to tell him she was
being harassed about a tattoo identifying her as a West Side
resident. At the time he received this text, Victim was driving
around with Reyos and Sarah. They drove to the party, and
Sarah remained in the car while Reyos and Victim got out. A
fight erupted in front of the house, and as many as twenty
gunshots were fired. When Sarah heard the shots and saw
Victim run past her car, she drove closer to the house to retrieve
Reyos, who was surrounded and being beaten by several people.
Reyos was able to escape and get into the car. Sarah suggested
they try to find Victim, but Reyos responded, “F him. He left
me.”

¶3 Sarah and Reyos went to a motel where Sarah had been
staying, and she helped him clean up. After that, Sarah drove
Reyos to a friend’s house and then returned to the motel.
Around 7:00 a.m. on Sunday morning, Victim arrived at the
motel and a nervous Sarah cautioned him to “lay low for a little
while” because Reyos was “upset” that Victim had abandoned
him during the fight. She repeated the warning because Victim
did not appear to take it seriously, ominously adding that Reyos
was “not just going to forget about it.” Victim remained
unconcerned, explaining he ran away because his gun had
jammed and he “didn’t want those fools to take it away.” Victim
called Mary around 10:00 a.m. to ask for a ride home, but Mary
put him off.

1. The tragic sequence of events underlying this case began late
in the evening of August 25, or early in the morning of August
26, 2012.

2. We use pseudonyms to protect the privacy of Victim and the
witnesses in this case.

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State v. Reyos

¶4 Around midday, Victim was still at the motel when Reyos
and Michael arrived by car. Sarah was nervous and scared that
something might “go down.” Reyos and Victim argued briefly
but then acted as though they were “cool.” After the four
smoked methamphetamine, Reyos announced that he, Victim,
and Michael would go to a shooting range to figure out what
was wrong with Victim’s gun. Reyos did not want Sarah to
accompany them but relented after Sarah insisted on going.
Sarah did this because she “had a bad feeling” and felt she
needed to accompany them. They left the motel, with Michael at
the wheel, but instead of going to a shooting range, they drove
around, ostensibly looking for something to steal. Reyos
eventually directed Michael to pull onto a dirt alley running
through the middle of a block in the Sugar House neighborhood
of Salt Lake City.

¶5 Reyos and Victim emerged from the car while Michael
remained behind the wheel. Sarah tried to follow, but Reyos
prevented her from getting out. Victim and Reyos walked
between two fences concealed by a grove of trees and separated
by a small, shallow ditch. There, Reyos put a gun to Victim’s
head and shot him, leaving Victim lying in the ditch. Sarah did
not see Reyos shoot Victim, but she heard the gunfire and knew
what had happened. A smirking Reyos returned to the car, and
the three left the scene, eventually parting company with one
another.

¶6 Sarah was afraid of Reyos and attempted to avoid him,
but Reyos nevertheless managed to speak to her, directing her
not to disclose what happened and offering a story she could tell
people if questioned. When the police interviewed Sarah about
Victim’s death, she initially denied knowing anything, then gave
the story Reyos suggested, and finally, about two weeks later,
told them Reyos had killed Victim. Sarah testified she finally
disclosed the real story because lying about it was “eating at”
her and causing her nightmares. She also testified she “couldn’t
lie anymore” and wanted closure for Victim’s family.

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State v. Reyos

¶7 During an interview with police, John, an acquaintance of
Reyos, stated he had a conversation in which Reyos admitted
killing Victim. Reyos told John that he shot Victim because
Victim “set him up” the night of the fight. At the conclusion of
the interview, John signed a document attesting to the veracity
of his statement. But at trial, John testified he had no recollection
of making the statement to the police or signing the document,
even after listening to a recording of the interview the week
before trial. He admitted, however, that the signature on the
document looked like his and the voice on the recording
sounded like him. John also testified he had no recollection of
the conversation with Reyos. After John finished testifying, the
State played a recording of John’s police interview and asked the
interviewing detective about it. Although defense counsel had
cross-examined John about the interview, they chose not to ask
the detective any questions about it.3

¶8 John’s girlfriend testified that although she had not been
present when John signed the written statement, the signature
looked like his. The lead detective, however, testified that John’s
girlfriend was present when John signed the statement, as were
three other people. Reyos objected to the admission of any of
John’s statements to the police, but the trial court overruled the
objection on the ground that they were admissible as non-
hearsay under rule 801 of the Utah Rules of Evidence.

¶9 After the jury determined Reyos intentionally or
knowingly caused Victim’s death, the State submitted evidence
that Reyos had previously been convicted of aggravated
robbery. In light of the aggravating offense, the jury convicted

3. Reyos was represented by three attorneys at trial, with one
attorney cross-examining John and a different attorney cross-
examining the detective.

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State v. Reyos

Reyos of aggravated murder.4 The jury also convicted Reyos of
possession or use of a firearm by a restricted person.

¶10 The trial court sentenced Reyos to life in prison without
the possibility of parole for the aggravated murder and a
consecutive term of one to fifteen years in prison for possession
of a dangerous weapon. Reyos filed a timely appeal.

ISSUES AND STANDARDS OF REVIEW

¶11 Reyos raises three issues on appeal but pursues only two
of them: whether the trial court erred in admitting evidence of
John’s police interview in violation of Reyos’s constitutional
right to confrontation and whether the applicable sentencing
scheme is constitutional.5 “Whether testimony was admitted in
violation of [Reyos’s] right to confrontation is a question of law,”
which we review for correctness. State v. Calliham, 2002 UT 87,
¶ 31, 57 P.3d 220. The second issue was not preserved, but Reyos
asserts this court may consider it under the exceptional
circumstances exception to the preservation requirement.

¶12 The State contends the second issue does not present
exceptional circumstances, and therefore we should decline to
review it. In the State’s view, Reyos cannot make an exceptional
circumstances claim because he could have raised the issue

4. “Criminal homicide constitutes aggravated murder if the actor
intentionally or knowingly causes the death of another
[and] . . . the actor was previously convicted of . . . aggravated
robbery.” Utah Code Ann. § 76-5-202(1)(j)(xvi) (LexisNexis Supp.
2016).

5. Reyos also challenged the sufficiency of the evidence to
support his conviction of aggravated murder but conceded this
issue at oral argument.

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below but simply chose not to pursue it. The State relies on State
v. Holgate, 2000 UT 74, 10 P.3d 346, in which our supreme court
stated, “[A] defendant should not be permitted to forego making
an objection with the strategy of enhanc[ing] the defendant’s
chances of acquittal and then, if that strategy fails, . . . claim[ing]
on appeal that the Court should reverse.” Id. ¶ 11 (alterations
and omission in original) (citation and internal quotation marks
omitted).

¶13 Irrespective of the State’s argument, under rule 22(e) of
the Utah Rules of Criminal Procedure, “[t]he court may correct
an illegal sentence, or a sentence imposed in an illegal manner, at
any time.” Utah R. Crim. P. 22(e) (2016). And, as our supreme
court has explained, constitutional challenges to a defendant’s
sentence “fall[] within the narrow scope of rule 22(e)’s exception
to the preservation of claims,” so long as such challenges “attack
the sentence itself and not the underlying conviction, and . . . do
so as a facial challenge rather than an as-applied inquiry.” State
v. Houston, 2015 UT 40, ¶¶ 16, 26, 353 P.3d 55 (footnote omitted).
Reyos’s constitutional claims meet that standard, and we
therefore “treat [his] claims as if they had been preserved.” See
id. ¶ 16. Whether a statute is unconstitutional is a question of law
reviewed for correctness. State v. Poole, 2010 UT 25, ¶ 8, 232 P.3d
519.

ANALYSIS

I. Admissibility of John’s Out-of-Court Statements

¶14 Reyos contends the admission of John’s out-of-court
statements violated his Sixth Amendment right of confrontation
because John had “absolutely no memory” of his interview with
police. In Reyos’s view, John’s “amnesia” made him unavailable
because defense counsel could not meaningfully examine him
about his out-of-court statements. We disagree.

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State v. Reyos

¶15 The Sixth Amendment’s Confrontation Clause provides
that “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.” U.S.
Const. amend. VI. The Supreme Court discussed the contours of
the Confrontation Clause in the landmark case Crawford v.
Washington, 541 U.S. 36 (2004), and specifically addressed
whether the rule it had articulated in Ohio v. Roberts, 448 U.S. 56
(1980), strayed “from the original meaning of the Confrontation
Clause.” Crawford, 541 U.S. at 42.

¶16 In Roberts, the Court held that out-of-court statements of
unavailable witnesses may be admitted if they bear “adequate
indicia of reliability.” 448 U.S. at 66 (internal quotation marks
omitted). To meet the Roberts test, the evidence must “fall[]
within a firmly rooted hearsay exception” or bear
“particularized guarantees of trustworthiness.” Id.; accord
Crawford, 541 U.S. at 40.

¶17 The Crawford court concluded that the Roberts test was
“unpredictable and inconsistent,” explaining that “the result
below is so improbable that it reveals a fundamental failure on
our part to interpret the Constitution in a way that secures its
intended constraint on judicial discretion.” Id. at 66–67. The
Court articulated a new test, stating that “[w]here testimonial
evidence is at issue . . . the Sixth Amendment demands what the
common law required: unavailability and a prior opportunity for
cross-examination.” Id. at 68. We emphasize that the Crawford
test is triggered by testimonial statements only. See id. (“Where
nontestimonial hearsay is at issue, it is wholly consistent with
the Framers’ design to afford States flexibility in their
development of hearsay law . . . as would an approach that
exempted such statements from Confrontation Clause scrutiny
altogether.”). Although the Court did not define “testimonial,” it
stressed that, at a minimum, the term applies to “prior testimony

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State v. Reyos

at a preliminary hearing, before a grand jury, or at a former trial;
and to police interrogations.”6 Id.

¶18 Reyos contends John was unavailable for purposes of the
Confrontation Clause. He argues, “‘[A] witness’s total amnesia
concerning a prior statement will often make him not subject to
cross-examination’ for Confrontation Clause purposes.”
(Quoting United States v. DiCaro, 772 F.2d 1314, 1323 (7th Cir.
1985).) But the DiCaro court made this statement while analyzing
whether the grand jury testimony of a witness claiming amnesia
could be admitted under the Federal Rules of Evidence, not
under the Confrontation Clause. 772 F.2d at 1321–23. Moreover,
the concept of unavailability under the Confrontation Clause
differs from the concept under both the Utah and Federal Rules
of Evidence.7

6. As it relates to statements made under police interrogation,
the United States Supreme Court has clarified that
[s]tatements are nontestimonial when made in the
course of police interrogation under circumstances
objectively indicating that the primary purpose of
the interrogation is to enable police assistance to
meet an ongoing emergency. They are testimonial
when the circumstances objectively indicate that
there is no such ongoing emergency, and that the
primary purpose of the interrogation is to establish
or prove past events potentially relevant to later
criminal prosecution.
Davis v. Washington, 547 U.S. 813, 822 (2006).

7. Utah adopted the Federal Rules of Evidence in 1977. Utah R.
Evid. Preliminary Note. “The numbering and text of these rules
conform to the Federal Rules of Evidence . . . except . . . in a
small number of instances in which the [state] rule adopted was
considered sufficiently superior to the federal rule to justify
(continued…)

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State v. Reyos

¶19 Unavailability under the Confrontation Clause is narrow
and literal. A witness is unavailable if he does not testify but is
available if he does.8 See Crawford, 541 U.S. at 53–54, 59 n.9
(stating that “the Framers would not have allowed admission of
testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had had
a prior opportunity for cross-examination,” and that “[t]he
Clause does not bar admission of a statement so long as the
declarant is present at trial to defend or explain it” (emphases
added)); see also California v. Green, 399 U.S. 149, 161 (1970)
(“[W]e note that none of our decisions interpreting the
Confrontation Clause requires excluding the out-of-court
statements of a witness who is available and testifying at trial.”).
And where a witness is available, his testimonial statements are
admissible and do not violate the Confrontation Clause.9

(…continued)
departure from the objective of uniformity between Utah and
federal rules.” Id. The criteria for being unavailable under rule
804(a) of the Utah Rules of Evidence does not differ in any
material way from the criteria outlined in rule 804(a) of the
Federal Rules of Evidence. Accordingly, federal cases applying
the federal version of rule 804(a) are instructive to our analysis.

8. A witness will not be deemed unavailable unless the
prosecution has “made a good-faith effort to obtain [the
witness’s] presence at trial.” Barber v. Page, 390 U.S. 719, 724–25
(1968).

9. “[T]he history surrounding the right to confrontation supports
the conclusion that it was developed to target particular
practices that occurred under the English bail and committal
statutes passed during the reign of Queen Mary” in which
statements from ex parte examinations were used “‘as evidence
against the accused.’” Davis v. Washington, 547 U.S. 813, 835
(continued…)

20150338-CA 9 2017 UT App 132
State v. Reyos

Crawford, 541 U.S. at 59 n.9 (“[W]hen the declarant appears for
cross-examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial statements.”
(emphasis added)).

¶20 By contrast, the concept of unavailability under the Utah
Rules of Evidence and their federal counterpart is much broader.
For example, a witness may be deemed unavailable despite
appearing and testifying at trial if he cannot remember the
events at issue. See Utah R. Evid. 804(a)(3). Thus, a witness may
be deemed available for purposes of confrontation but
simultaneously unavailable under the Utah Rules of Evidence.
This might occur where a witness at trial claims a loss of
memory as to the subject matter of the testimony he gave at a
preliminary hearing in the same case.

¶21 Reyos relies on cases analyzing unavailability under the
Utah and Federal Rules of Evidence to support his contention
that John was unavailable for purposes of the Confrontation
Clause. In addition, Reyos makes the bald assertion that, because
John claimed no memory of speaking with him about the
murder or making a statement to the police, he “was deprived of
his right of the ‘face-to-face’ confrontation.” But the cases he cites
do not support his argument, and in any event, the
Confrontation Clause is not triggered where, as here, “the
declarant is present at trial to defend or explain” his statement.
Crawford, 541 U.S. at 59 n.9; Green, 399 U.S. at 162 (“For where
the declarant is not absent, but is present to testify and to submit
to cross-examination, our cases, if anything, support the

(…continued)
(2006) (Thomas, J., concurring) (quoting Crawford v. Washington,
541 U.S. 36, 43, 50 (2004)). “These examinations came to be used
as evidence in some cases, in lieu of a personal appearance by
the witness.” Id. at 836.

20150338-CA 10 2017 UT App 132
State v. Reyos

conclusion that the admission of his out-of-court statements does
not create a confrontation problem.”).

¶22 Reyos further asserts, “there was no ‘meaningful cross-
examination’ because the defense was unable to elicit any
testimony regarding the surrounding circumstances or the actual
event, to test whether the witness’s statement was factually
accurate.” But the Confrontation Clause “guarantees only ‘an
opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever
extent, the defense might wish.” United States v. Owens, 484 U.S.
554, 559 (1988) (citation and internal quotation marks omitted).
And where a witness testifies that he cannot recall making a
prior statement or the events surrounding it, “[i]t is sufficient
that the defendant has the opportunity to bring out such matters
as the witness’[s] bias, his lack of care and attentiveness, his poor
eyesight, and even . . . the very fact that he has a bad memory.”
Id. “The weapons available to impugn the witness’[s] statement
when memory loss is asserted will of course not always achieve
success, but successful cross-examination is not the
constitutional guarantee. They are, however, realistic
weapons . . . .” Id. at 560.

¶23 Indeed, Reyos, through counsel, could have inquired
about whether John was under the influence of drugs or alcohol
at the time he spoke with Reyos and the police, which, if true,
could have undermined the veracity of John’s statements to the
police and provided an explanation for John’s inability to
remember them. Reyos did not pursue such questioning, but it is
sufficient that he had the opportunity to do so. See id. at 559–60.
Reyos did, however, ask John whether he remembered speaking
with him or the police, and the jury was able to observe John’s
demeanor and assess his truthfulness.

¶24 Although the Supreme Court determined in Owens, a
post-Roberts but pre-Crawford decision, that a witness’s lack of
memory, without more, does not violate the Confrontation

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State v. Reyos

Clause, see id., Reyos argues, it “is unknown” how the Supreme
Court would decide Owens in light of Crawford. But Crawford did
not overrule Owens. Indeed, the Owens court did not apply the
Roberts test, and it rejected the idea that “such an inquiry is
called for when a hearsay declarant is present at trial and subject
to unrestricted cross-examination. In that situation, as the Court
recognized in Green, the traditional protections of the oath, cross-
examination, and opportunity for the jury to observe the
witness’[s] demeanor satisfy the constitutional requirements.” Id.
at 560. We therefore conclude that under Owens and Crawford,
Reyos’s right to confrontation was not violated.

¶25 In passing, Reyos also argues John was unavailable under
rule 804 of the Utah Rules of Evidence, which outlines several
exceptions to the hearsay rule, but he does not explain how rule
804 applies to John’s statements to police. Rule 804(b)(1) governs
prior testimony “given as a witness at a trial, hearing, or lawful
deposition,” circumstances in which the prior testimony is
subject to cross-examination. Utah R. Evid. 804(b)(1)(A). John’s
statements, however, do not fall under the purview of rule
804(b)(1). They fall under rule 801, which provides that where a
“declarant testifies and is subject to cross-examination about a
prior statement, and the statement: (A) is inconsistent with the
declarant’s testimony or the declarant denies having made the
statement or has forgotten,” the statement is not hearsay. Id. R.
801(d)(1)(A) (emphasis added). Accordingly, John’s statements
were not hearsay, and therefore Reyos’s rule 804 argument fails.

¶26 In sum, we conclude John was available for Confrontation
Clause purposes and the trial court therefore properly admitted
his out-of-court statements.

II. Constitutionality of Utah’s Aggravated Murder Sentencing
Scheme

¶27 Reyos contends the aggravated murder sentencing
scheme under Utah Code sections 76-3-207 and 76-3-207.7

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State v. Reyos

violates the Due Process Clause of the United States Constitution
and the Utah Constitution, the Uniform Operations of Laws
Clause of the Utah Constitution, and the Equal Protection Clause
of the United States Constitution. Reyos’s contentions mirror
arguments our supreme court has recently rejected in State v.
Met, 2016 UT 51, 388 P.3d 447; State v. Houston, 2015 UT 40, 353
P.3d 55; and State v. Perea, 2013 UT 68, 322 P.3d 624.

¶28 The Utah Code provides prosecutors two alternatives
when charging a person with aggravated murder. The
prosecutor may seek the death penalty, in which case the
aggravated murder is charged as a “capital felony.” Utah Code
Ann. § 76-5-202(3)(a) (LexisNexis Supp. 2016). Alternatively, the
aggravated murder is charged as a “noncapital first degree
felony.” Id. § 76-5-202(3)(b). Sentencing differs under each
alternative.

¶29 Defendants who plead guilty to or are convicted of capital
aggravated murder are sentenced by a jury.10 Id. § 76-3-
207(1)(c)(i). The jury must first consider whether to impose the
death penalty and may only do so by a unanimous vote. Id. § 76-
3-207(5)(a). Before imposing the death penalty, the jury must
consider “the totality of the aggravating and mitigating
circumstances,” must be “persuaded beyond reasonable doubt
that total aggravation outweighs total mitigation,” and must be
further persuaded beyond reasonable doubt “that the imposition
of the death penalty is justified and appropriate in the
circumstances.” Id. § 76-3-207(5)(b). “If the jury is unable to reach
a unanimous decision imposing the sentence of death, the jury
shall then determine whether the penalty of life in prison
without parole shall be imposed,” which requires agreement by

10. A defendant may, with the court’s and the prosecutor’s
consent, waive sentencing by jury and instead be sentenced by
the court. Utah Code Ann. § 76-3-207(1)(c)(i) (LexisNexis Supp.
2016).

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State v. Reyos

at least ten jurors. Id. § 76-3-207(5)(c). “The penalty of life in
prison without parole shall only be imposed if the jury
determines that the sentence . . . is appropriate.” Id. If the jury
decides not to impose a sentence of life in prison without parole,
“the court shall discharge the jury and impose an indeterminate
prison term of not less than 25 years and which may be for life.”
Id.

¶30 Defendants who, like Reyos, plead guilty to or are
convicted of noncapital aggravated murder “shall be sentenced
by the court.” Id. § 76-3-207.7(1). “The sentence under this
section shall be: (i) life in prison without parole; or (ii) an
indeterminate prison term of not less than 25 years and which
may be for life.” Id. § 76-3-207.7(2)(a). Although section 207.7
does not articulate a standard that must be met before imposing
a sentence of life in prison without parole, such as requiring the
sentence to be “appropriate” as is the case under section 207, our
supreme court has stated that section 207.7 “must be read in the
context of Utah’s sentencing scheme as a whole.” Perea, 2013 UT
68, ¶ 115; accord Met, 2016 UT 51, ¶ 42. And the criminal code
“‘shall be construed . . . [to p]revent arbitrary or oppressive
treatment’” and to impose “‘penalties which are proportionate to
the seriousness of offenses.’” Perea, 2013 UT 68, ¶ 115 (alteration
and ellipsis in original) (quoting Utah Code § 76-1-104); accord
Met, 2016 UT 51, ¶ 42.

¶31 In short, a defendant convicted of capital aggravated
murder will receive one of three sentences under section 207: the
death penalty, life in prison without parole, or an indeterminate
sentence of twenty-five years to life. See Utah Code Ann. § 76-3-
207(5) (LexisNexis Supp. 2016). And a defendant convicted of
noncapital aggravated murder will receive one of two sentences
under section 207.7: life in prison without parole or an
indeterminate sentence of twenty-five years to life. See id. § 76-3-
207.7(2).

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State v. Reyos

A. Due Process Challenges

¶32 Reyos contends Utah’s aggravated murder sentencing
scheme violates the Due Process Clause of the United States
Constitution and the Utah Constitution because it allows the
sentencing court rather than the jury to impose a sentence of life
in prison without parole. Reyos argues that, under Apprendi v.
New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 133
S. Ct. 2151 (2013), the sentencing scheme is unconstitutional.

¶33 In Apprendi, the Supreme Court explained that the right to
due process under the Fifth Amendment and the right to an
impartial jury under the Sixth Amendment, “[t]aken
together, . . . indisputably entitle a criminal defendant to a jury
determination that [he] is guilty of every element of the crime
with which he is charged, beyond a reasonable doubt.” 530 U.S.
at 476–77 (second alteration in original) (citation and internal
quotation marks omitted). In light of these rights, the Court held
unconstitutional a New Jersey statute that authorized a
sentencing court to impose a sentence beyond the statutory
maximum if the judge determined, by a preponderance of the
evidence, the defendant committed a hate crime. Id. at 468–69,
497. The Court stated, “Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Id. at 490. Confronting a
similar situation in Alleyne, the Court held that any fact that
would “increase the mandatory minimum sentence . . . must be
submitted to the jury and found beyond a reasonable doubt.”
133 S. Ct. at 2158.

¶34 In Reyos’s view, section 207.7 runs afoul of Apprendi and
Alleyne because, as he claims, it authorizes the sentencing court
to “increase” the mandatory minimum sentence by imposing a
sentence of life in prison without parole rather than an
indeterminate sentence of twenty-five years to life, and such an

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increase “must be based upon a jury determination of the facts
supporting the increase.” We are unpersuaded by this argument.

¶35 In State v. Houston, 2015 UT 40, 353 P.3d 55, our supreme
court reviewed a similar Apprendi challenge. Id. ¶¶ 30–32. There,
the defendant argued section 207 was unconstitutional under
Apprendi. Id. The court noted that, unlike the statute at issue in
Apprendi, section 207 does not require or authorize the
sentencing court “to make factual findings that increase an
offender’s sentence.” Id. ¶ 32. Section 207.7 similarly does not
require or authorize the sentencing court to make a factual
finding that would increase the statutory maximum sentence. See
Utah Code Ann. § 76-3-207.7. Notwithstanding this precedent,
Reyos argues Alleyne’s extension of Apprendi’s rule to prohibit
imposing a sentence increasing the mandatory minimum
sentence renders section 207.7 unconstitutional. But, like section
207, section 207.7 does not require or authorize the sentencing
court to increase the mandatory minimum sentence—in this
case, not less than twenty-five years in prison. See id. Rather,
section 207.7 provides the court with two alternative sentences—
life without parole or twenty-five years to life—and identifies no
factual finding that is pertinent to the court’s decision between
the two. See id.

¶36 In any event, the Supreme Court noted in Apprendi, “We
should be clear that nothing in this history suggests that it is
impermissible for judges to exercise discretion . . . in imposing a
judgment within the range prescribed by statute.” 530 U.S. at 481.
This is precisely what the sentencing court did. We conclude
Apprendi and Alleyne do not apply, and therefore there is no
violation under the United States Constitution.

¶37 Reyos further contends the Utah Constitution provides
“even broader due process and jury trial protections than the
federal protections announced in Apprendi.” But Reyos has not
“adequately analyzed the state constitutional claim as an issue
separate and distinct from its federal counterpart,” and we

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State v. Reyos

therefore do not address it. See State v. Rynhart, 2005 UT 84, ¶ 12,
125 P.3d 938.

¶38 Reyos next contends Utah’s aggravated murder
sentencing scheme violates due process because it is “arbitrary
and capricious.” As we understand it, Reyos argues that, if the
State had sought to convict him of capital aggravated murder,
thus subjecting him to be sentenced by a jury under section 207,
he may have obtained a more lenient sentence. Reyos further
argues that, because sentencing under section 207 may be
“potentially [more] lenient” and “arguably more favorable to a
defendant than [section] 207.7,” section 207 “should be utilized.”

¶39 In support of his argument, Reyos cites State v. Shondel,
453 P.2d 146 (Utah 1969), which holds that “where there is doubt
or uncertainty as to which of two punishments is applicable to
an offense an accused is entitled to the benefit of the lesser.” Id.
at 148. Reyos does not claim Utah’s aggravated murder
sentencing scheme creates uncertainty as to what sentence may
be imposed on a defendant, nor do we believe there is any
ambiguity. Once the State charged Reyos with noncapital
aggravated murder, it was clear that if Reyos were to be
convicted, he would either be sentenced to life in prison without
parole or an indeterminate sentence of twenty-five years to life.
Thus, we are not persuaded that a purely conjectural possibility
that a jury might sentence more leniently than a judge implicates
Shondel in any way.

¶40 We conclude Utah’s aggravated murder sentencing
scheme does not violate the Due Process Clause of the United
States Constitution or the Utah Constitution.

B. Challenges Under the Utah Uniform Operation of Laws
Clause and the Equal Protection Clause

¶41 Reyos contends Utah’s aggravated murder sentencing
scheme violates the Uniform Operation of Laws Clause of the

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State v. Reyos

Utah Constitution and the Equal Protection Clause of the United
States Constitution because, in his view, it “divides a class of
similarly situated people into two subclasses who will receive
disparate treatment.” Reyos’s contention is rooted in the
differences between sentencing defendants charged with capital
aggravated murder under section 207 and defendants charged
with noncapital aggravated murder under section 207.7.

¶42 The Uniform Operation of Laws Clause provides, “All
laws of a general nature shall have uniform operation.” Utah
Const. art. 1, § 24. “The Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution
provides that no state shall ‘deny to any person within its
jurisdiction the equal protection of the laws.’” State v. Lafferty,
2001 UT 19, ¶ 70, 20 P.3d 342 (quoting U.S. Const. amend.
XIV, § 1). “[B]oth the federal and state constitutions require that
similarly situated individuals be treated alike under the law
unless there is a reasonable basis for treating them differently.”
State v. Met, 2016 UT 51, ¶ 48, 388 P.3d 447 (citation and internal
quotation marks omitted). Critical to this appeal, a law must
apply equally “to all members within each class or subclass,”
and “the statutory classifications and the different treatment
given the classes must be based on differences that have a
reasonable tendency to further the objectives of the statute.”
State v. Mohi, 901 P.2d 991, 997–98 (Utah 1995) (citations and
internal quotation marks omitted).

¶43 Reyos takes issue with the fact that defendants convicted
of capital aggravated murder under section 207 are sentenced by
a jury, whereas defendants convicted of noncapital aggravated
murder under section 207.7 are sentenced by a court. Our
supreme court rejected this argument in Met.

¶44 Reyos’s argument fails, in part, because those sentenced
under section 207.7 are not similarly situated to those sentenced
under section 207 in that they do not belong to the same class.
One group is composed of those who are charged with capital

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State v. Reyos

offenses and the other is composed of those charged with
noncapital offenses. See Met, 2016 UT 51, ¶ 51. Indeed, separate
statutes govern the sentencing process for each type of offense.
Moreover, “[b]ecause the death penalty is different, in both a
factual and legal sense, from life without parole, the Legislature
has a reasonable basis for treating those facing the death penalty
differently than those who are not.” Id.

¶45 To the extent Reyos makes individual arguments that
sections 207 and 207.7 independently violate Utah’s Uniform
Operation of Laws Clause, we reject those arguments on vertical
stare decisis grounds.

¶46 In State v. Perea, 2013 UT 68, 322 P.3d 624, our supreme
court rejected a claim that section 207.7 violated Utah’s Uniform
Operation of Laws Clause because it authorized the sentencing
court to impose either life in prison without parole or an
indeterminate prison sentence of twenty-five years to life. Id.
¶ 122. There, the court held:

Not all those found guilty of aggravated murder
are similarly situated. While all are found guilty of
the same crime, each case and each defendant
presents a different set of facts and a different
combination of aggravating and mitigating factors.
The discretion afforded to district courts furthers
the legitimate legislative purpose of sentencing
offenders based on the totality of the unique
circumstances present in each case.

Id. ¶ 123. Since Perea, the supreme court has twice affirmed this
holding. See Met, 2016 UT 51, ¶ 43; State v. Reece, 2015 UT 45,
¶¶ 77–80, 349 P.3d 712.

¶47 Similarly, in State v. Houston, 2015 UT 40, 353 P.3d 55, our
supreme court rejected a claim that section 207 violated the
Uniform Operation of Laws Clause because it authorizes a jury

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State v. Reyos

to sentence one offender “to life with parole and sentence the
other to life without parole.” Id. ¶¶ 42–46. There, the court
explained:

Although it is true that two defendants who
commit aggravated murder may receive different
sentences from a jury, this is either because the
defendants were not similarly situated (for
example, one defendant committed a much more
heinous crime) or the jury in the course of its
deliberations finds it more “appropriate” to
sentence one defendant to a more lenient or more
severe penalty.

Id. ¶ 45. The court concluded section 207 does not violate the
Uniform Operation of Laws Clause because it “treats all
similarly situated defendants the same and it does not contain
any impermissible classifications.” Id. ¶ 46.

¶48 We thus conclude sections 207 and 207.7, taken together
or independently, do not violate the Uniform Operation of Laws
Clause of the Utah Constitution. And because we conclude they
survive scrutiny under the Utah Constitution, we also conclude
they survive scrutiny under the Equal Protection Clause of the
United States Constitution. Id. ¶ 41.

CONCLUSION

¶49 We affirm Reyos’s convictions. The trial court properly
admitted John’s out-of-court statements at trial. We also reject
each of Reyos’s constitutional challenges to Utah’s aggravated
murder sentencing scheme.

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