State v. Chavez-Reyes

2015 UT App 202
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Plaintiff and Appellee,
v.
R UBEN C HAVEZ -R EYES,
Defendant and Appellant.
Memorandum Decision
No. 20100904-CA
Filed August 13, 2015
Fourth District Court, Fillmore Department
The Honorable Donald J. Eyre Jr.
No. 101700003
Rudy J. Bautista, Attorney for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee
JUDGE GREGORY K. O RME authored this Memorandum Decision,
in which J UDGES S TEPHEN L. R OTH and K ATE A. TOOMEY
concurred.
ORME, Judge:
¶1 	Defendant Ruben Chavez-Reyes appeals his convictions
for obstruction of justice, a second degree felony, see Utah Code
Ann. § 76-8-306 (LexisNexis 2012); burglary of a non-dwelling, a
third degree felony, see id. § 76-6-202; and tampering with
evidence, a third degree felony, see id. § 76-8-510.5 (LexisNexis
Supp. 2014).1 Those charges arose in the aftermath of the tragic
1. Because the statutory provisions in effect at the relevant time
do not differ in any way material to our analysis from the
statutory provisions now in effect, we cite the current version of
the Utah Code as a convenience to the reader.

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murder of Deputy Josie Greathouse Fox.2 We affirm Defendant’s
convictions.
¶2 	In the early morning hours of January 5, 2010, Deputy Fox
was shot to death when she stopped a Cadillac in Delta, Utah.3
The Cadillac was owned by Defendant. About four minutes after
Deputy 	Fox’s last 	contact 	with 	dispatch, 	her 	alleged 	killer,
Defendant’s cousin, telephoned Defendant. Over the next hour
and a half, Defendant’s cousin called him ten times. Eventually,
Defendant left his home and drove his Corvette to pick up his
cousin, who had wrecked the Cadillac on an icy road in Nephi,
some fifty miles from Delta.4 The two men placed the Cadillac’s
license plates on Defendant’s Corvette and made their way to
Salt Lake City, throwing two of the cousin’s firearms out the
window of the Corvette while en route. The men arrived in Salt
Lake City around 5:00 a.m. on January 5.
¶3 	Meanwhile, investigators learned that Defendant’s cousin,
not Defendant, had been driving the Cadillac on the night of
Deputy Fox’s murder. The investigators tracked the cousin’s cell
phone to an area west of Salt Lake City. When police officers
converged on the area and went house to house in search of
2. This court typically does not include the names of crime
victims, witnesses, or other innocent parties in its decisions. We
make an exception in this case due to the considerable notoriety
this criminal episode has attracted. The late deputy’s identity is
well known, and obscuring her identity in this decision would
serve no purpose.
3. “On appeal, we recite the facts in the light most favorable to
the jury’s verdict.” State v. Martinez, 2013 UT App 154, ¶ 2 n.1,
304 P.3d 110 (citation and internal quotation marks omitted).
4. Defendant loaned the Cadillac to his cousin about two months
before Deputy Fox’s murder.

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Defendant’s 	cousin, 	they 	mistakenly 	let 	Defendant 	and 	his
cousin leave the area with another family. After parting ways
with the family, the men took public transportation to Orem.
Once there, Defendant called a taxi company and arranged for
the two of them to be driven to Provo and then to Beaver. The
next morning, January 6, the two men were found sleeping in a
shed in Beaver and were taken into custody.
¶4 	Defendant was charged with (1) obstruction of justice,
(2) burglary of a non-dwelling, (3) tampering with evidence,
(4) burglary of a dwelling, and (5) possession of a firearm by a
category II restricted person. After a jury trial, he was convicted
of the first three charges and acquitted on the two remaining
counts. Defendant appeals his convictions.
I.
¶5 	Defendant argues that the trial court erred “in admitting a
gruesome photograph of murdered Deputy Fox’s body.” The
photograph depicts Deputy Fox as she was found by a fellow
officer, “laying on her back with her head towards her truck.”
Her wounds are not visible in the picture. The Utah Supreme
Court has adopted a three-part test for determining whether an
allegedly gruesome photograph is admissible:
First, [the trial court] determine[s] whether the
photograph 	is 	relevant. 	Second, 	[the 	court]
consider[s] whether the photograph is gruesome.
Finally, [it] appl[ies] the appropriate balancing test.
If the photograph is gruesome, it should not be
admitted 	unless 	the 	State 	can 	show 	that 	the
probative value of the photograph substantially
outweighs 	the 	risk 	of 	unfair 	prejudice. 	If 	the
photograph is not gruesome, it should be admitted
unless the defendant can show that the risk of

State v. Chavez-Reyes
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unfair 	prejudice 	substantially 	outweighs 	the
probative value of the photograph.
State v. Bluff, 2002 UT 66, ¶ 46, 52 P.3d 1210.
¶6 	First, Defendant alleges that the photograph of Deputy
Fox is inadmissible because it is irrelevant to the charge of
obstruction 	of 	justice. 	“A 	trial 	court’s 	determination 	that
photographs are relevant is reviewed for abuse of discretion.”
State v. Gulbransen, 2005 UT 7, ¶ 35, 106 P.3d 734. Evidence is
relevant if “it has any tendency to make a fact more or less
probable than it would be without the evidence.” Utah R. Evid.
401(a). 	And 	the 	evidence 	must 	relate 	to 	a 	fact 	that 	“is of
consequence in determining the action.” Id. R. 401(b).
¶7 	Defendant was charged with obstruction of justice, and
consequently, the State was required to prove that Defendant
“provide[d] a person with transportation . . . or other means of
avoiding discovery or apprehension” and that he did so “with
intent 	to 	hinder, 	delay, 	or 	prevent 	the 	investigation,
apprehension, prosecution, conviction, or punishment of any
person regarding conduct that constitutes a criminal offense.”
See Utah Code Ann. § 76-8-306(1)(f) (LexisNexis 2012). Here, the
predicate criminal offense was Deputy Fox’s murder. Thus, the
State had to prove that Defendant intentionally impeded “the
investigation, 	apprehension, 	prosecution, 	conviction, 	or
punishment” of his cousin in connection with Deputy Fox’s
murder. To that end, the photograph of Deputy Fox was relevant
because 	it 	tended 	to 	make 	the 	criminal 	offense 	of 	murder
“more . . . probable than it would be without the evidence.” See
Utah R. Evid. 401(a).
¶8 	Defendant points out that, at trial, defense counsel, in
objecting to the photograph of Deputy Fox, noted that the
defense had already stipulated to the fact that Deputy Fox had
been murdered. However, we agree with the State that “a

State v. Chavez-Reyes
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stipulation of fact by defense counsel does not make evidence
less relevant, nor is it a basis for depriving the prosecution [of]
the opportunity of profiting from the legitimate moral force of its
evidence in persuading a jury.” See Gulbransen, 2005 UT 7, ¶ 37
(citation and internal quotation marks omitted).
¶9 	Second, Defendant argues that the photograph, “when
viewed under the totality of circumstances, is gruesome.” “To
determine whether a photograph is gruesome, courts consider a
variety of factors[.]” State v. Stapley, 2011 UT App 54, ¶ 15, 249
P.3d 572 (articulating the factors courts use to evaluate whether a
photograph is gruesome). “A photograph is not gruesome . . .
merely because it is unpleasant to view.” Id.
¶10 	Defendant’s claim that the photograph is gruesome is
unpreserved and he therefore seeks review under the plain error
exception to the preservation requirement. See State v. Holgate,
2000 UT 74, ¶ 11, 10 P.3d 346. “Plain error is error that is both
harmful and obvious.” State v. Emmett, 839 P.2d 781, 785 (Utah
1992).
¶11 	Defendant 	has 	not 	established 	plain 	error. 	At 	oral
argument, 	Defendant’s 	appellate 	counsel 	conceded 	that 	the
photograph of Deputy Fox is not gruesome under the traditional
factors for determining whether a photograph is gruesome. See
Stapley, 2011 UT App 54, ¶ 15. Indeed, the photograph was taken
from such an angle and distance that Deputy Fox’s wounds are
not visible. Viewers of crime dramas on television see far more
graphic images on a regular basis. Appellate counsel argued that
the 	photograph 	is 	nevertheless 	gruesome 	because 	of 	“the
overwhelming amount of publicity surrounding this trial” and
“the heightened emotional impact a dead officer has on all of
us.”
¶12 	As the State correctly points out, the publicity surrounding
Defendant’s trial and the emotional impact that the murder of a

State v. Chavez-Reyes
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law 	enforcement 	officer 	has 	on 	the 	community 	are 	not
characteristics of the photograph itself, which is the focus of our
inquiry. See State v. Bluff, 2002 UT 66, ¶ 43, 52 P.3d 1210 (“The
court must consider any characteristics of the photograph that
tend to make it more or less inflammatory.”). Rather, these are,
in the State’s words, “issues occasioned by the trial itself.” We
conclude that while the photograph of Deputy Fox is unsettling,
see State v. Allen, 839 P.2d 291, 302 (Utah 1992) (“Photographs of
victims are always sobering and graphic[.]”), it is not gruesome.
¶13 	Third, Defendant argues that “the prejudice caused by the
photograph 	substantially 	outweighed 	its 	probative 	value.”
Because the photograph is not gruesome, “the standard rule 403
balancing test applies.” State v. Decorso, 1999 UT 57, ¶ 53, 993
P.2d 837. Under this well-known test, “the court may exclude
relevant evidence only if its probative value is substantially
outweighed by the risk of unfair prejudice.” Id. See Utah R. Evid.
403.
¶14 	In this case, it is far from clear that it was necessary for the
prosecution to introduce the photograph of Deputy Fox. There
was no dispute about Deputy Fox’s murder, and the prosecution
presented 	ample 	other 	evidence 	of 	her 	murder, 	including
testimony from the sergeant who found Deputy Fox’s body and
the recorded police radio transmissions from the day she was
killed. Yet, because this other evidence was introduced (without
objection), the introduction of the photograph posed little risk
of unfair prejudice. When the State introduced the photograph of
Deputy Fox, the jury had already heard the sergeant’s testimony
concerning the events of January 5, 2010, and shortly after the
photograph was introduced, the jury heard the radio recordings.
Thus, the jury was well informed about the circumstances of
Deputy Fox’s murder and the events from which Defendant’s
obstruction-of-justice charge arose. Under these circumstances,
we cannot say that introduction of the photograph was unfairly

State v. Chavez-Reyes
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prejudicial. Accordingly, we conclude that the trial court acted
within its discretion in admitting the photograph into evidence.5
II.
¶15 	Defendant next argues that “[t]he prosecutor . . . engaged
in repeated instances of misconduct during his closing arguments
which undermined the fairness of [the] trial.” A prosecutor’s
remarks constitute misconduct meriting reversal only if they
“call to the attention of the jurors matters they would not be
justified in considering in determining their verdict.” State v.
Tillman, 	750 	P.2d 	546, 	555 	(Utah 	1987). 	If 	the 	prosecutor’s
remarks do so, we then determine whether they were prejudicial
so as to merit reversal. There has been some debate over the
standard by which prejudice should be evaluated in this context.
We need not resolve the question here but may simply assume
that the State must show that “the remarks were harmless
beyond a reasonable doubt.” See State v. Davis, 2013 UT App 228,
¶¶ 12, 	18, 	311 	P.3d 	538 	(applying 	the 	harmless-beyond-a-
reasonable-doubt standard to a prosecutorial misconduct claim
where “the choice of prejudice standard [was] not outcome
determinative”).
¶16 	During the prosecutor’s rebuttal during closing argument,
he made three statements to the effect that Defendant’s act of
5. 	During 	oral 	argument, 	Defendant’s 	appellate 	counsel
endeavored to expand the scope of this argument by arguing
that the totality of the evidence introduced regarding Deputy
Fox’s murder, including the sergeant’s testimony and the police
radio 	transmissions, 	was 	unfairly 	prejudicial. 	Because 	this
argument was raised for the first time at oral argument, we
decline to consider it. See Mobile Echocardiography, Inc. v. DAT &
K, LLC (In re Dissolution of Gregory, Barton & Swapp, PC), 2011 UT
App 170, ¶ 10, 257 P.3d 495.

State v. Chavez-Reyes
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loaning his Cadillac to his cousin two months before Deputy
Fox’s 	murder 	was 	conduct 	that 	supported 	Defendant’s
obstruction-of-justice charge. Defense counsel objected to all
three 	statements. 	The 	trial 	court 	sustained 	the 	first 	two
objections and overruled the third. Defendant argues that the
jury was not entitled to consider the one statement that survived
objection because “[p]roviding the Cadillac [that his cousin] was
driving when Deputy Fox was murdered has never been a fact
[that] supports [the obstruction-of-justice] charge.”
¶17 	We agree with Defendant that the prosecutor’s remarks
were improper and called the jurors’ attention to “matters they
[were] not . . . justified in considering in determining their
verdict.” See Tillman, 750 P.2d at 555. The connection between
Deputy 	Fox’s 	murder 	and 	Defendant’s 	act 	of 	lending 	his
Cadillac to his cousin two months before the murder is simply
too 	attenuated 	to 	support 	the 	obstruction-of-justice 	charge.
Additionally, 	the 	statements 	improperly 	implied 	that 	if
Defendant had not loaned the Cadillac to his cousin before the
murder, 	Deputy 	Fox 	would 	not 	have 	been 	murdered—
apparently because his cousin would not have been in the
Cadillac and Deputy Fox would have had no occasion to pull the
Cadillac over. The prosecutor’s remarks were clearly improper
and should not have been made.
¶18 	Nevertheless, we are persuaded that the remarks were
harmless beyond a reasonable doubt. See Davis, 2013 UT App
228, 	¶ 18. 	During 	the 	trial, 	the 	jury 	heard 	testimony 	that
Defendant loaned the Cadillac to his cousin two months before
the murder because his cousin had injured his leg while working
at a dairy. Based on this fact, the jury would readily have
concluded that Defendant let his cousin borrow the Cadillac for
a noncriminal purpose and that he did not have the intent to
impede 	the 	“investigation, 	apprehension, 	prosecution,
conviction, or punishment” of his cousin at that time because
Deputy Fox’s murder was some two months in the future and, at

State v. Chavez-Reyes
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that point, was neither planned nor contemplated. See Utah
Code Ann. § 76-8-306 (LexisNexis 2012). The fact that Defendant
was acquitted on two counts also tends to suggest that the jury
was not improperly influenced by the prosecutor’s inappropriate
remarks.
¶19 	More importantly, Defendant admitted to police that he
learned about Deputy Fox’s murder when his cousin told him
he had “broke a cop.” And later that evening, having heard this,
Defendant nevertheless made the arrangements with the taxi
company for the men to travel from Orem to Beaver. So when
Defendant made those arrangements, he was fully aware of his
cousin’s 	apparent 	involvement 	in 	Deputy 	Fox’s 	murder.6
Consequently, 	wholly aside 	from 	the 	prosecutor’s improper
remarks, there was ample evidence from which the jury would
readily conclude that Defendant had obstructed justice. See id.
§ 76-8-306(1)(f). 	We 	therefore 	conclude 	that 	the 	prosecutor’s
misconduct was harmless beyond a reasonable doubt. See Davis,
2013 UT App 228, ¶ 18.
III.
¶20 	Finally, 	Defendant, 	represented 	by 	new 	counsel 	on
appeal, argues that he was denied effective assistance of counsel
6. Defendant’s cousin was ultimately acquitted of Deputy Fox’s
murder in a state court trial, but he was convicted of illegal
possession of a dangerous weapon. We recently affirmed that
conviction. See State v. Roman, 2015 UT App 183, ¶ 1. Federal
charges have also been filed against Defendant’s cousin, Roberto
Miramontes Roman, in connection with Deputy Fox’s death. See
Lindsay Whitehurst, Defense Appealing Double-prosecution Ruling
in Utah Deputy’s Death, Salt Lake Tribune (July 30, 2015, 8:21
PM), 	http://www.sltrib.com/news/2475924-155/defense-appeal
ing-double-prosecution-ruling-in-utah.

State v. Chavez-Reyes
20100904-CA 	10 	2015 UT App 202
at sentencing. “An ineffective assistance of counsel claim raised
for the first time on appeal presents a question of law.” State v.
Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. To establish his claim of
ineffective assistance of counsel, Defendant “must show that
counsel’s performance was deficient” and that “the deficient
performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984).
¶21 	At 	Defendant’s 	sentencing 	hearing, 	defense 	counsel
objected to two portions of the presentence investigation report
(PSI), including statements that Defendant recommended that
the men throw the cousin’s firearms out of the Corvette while
driving to Salt Lake City. The trial court agreed with defense
counsel that the statements were inappropriate because they
were based on statements made by Defendant’s cousin. The
court concluded that the offending statements should be deleted
from 	the 	PSI. Defense 	counsel 	then 	told 	the 	court that 	he
preferred 	that 	a 	new 	PSI 	be 	prepared, 	with 	the 	offending
statements excluded.
¶22 	Defendant argues that defense counsel’s “failure to . . .
request 	the 	preparation 	of 	a 	new 	[PSI], 	and 	to 	object 	to
[Defendant] being sentenced based on the information contained
in, and sentencing recommendations of, an inaccurate [PSI] was
ineffective.” We disagree. First, defense counsel did not perform
deficiently at sentencing, because he did request the preparation
of a new PSI:
And my preference, Your Honor, is that a
new [PSI] be prepared with those statements taken
out . . . so that it’s clear and, obviously, it’s not
going to matter with this Court, because this Court
is going to sentence having read that, but the
important part is if he is sentenced to prison, then
the parole board doesn’t have those statements
before it in making its determination.

State v. Chavez-Reyes
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More importantly, even though the trial court did not grant
defense counsel’s request for a new PSI, in response to defense
counsel’s objections the trial court crossed out the inappropriate
portions 	of 	the 	PSI. 	And 	in 	the 	“Judgment, 	Sentence 	and
Commitment,” the trial court noted defense counsel’s objections
and stated that it “deleted the [offending] text from the [PSI].”
Thus, 	Defendant 	has 	failed 	to 	establish 	either 	deficient
performance 	or 	prejudice 	at 	sentencing. 	His 	ineffective-
assistance claim therefore fails. See Strickland, 466 U.S. at 687.
IV.
¶23 	We conclude that the trial court did not err in admitting
the 	photograph 	of 	Deputy 	Fox. 	Further, 	although 	the
prosecutor’s statements regarding Defendant’s Cadillac were
improper and should not have been made, these statements
were 	harmless 	beyond 	a 	reasonable 	doubt. 	We 	also 	reject
Defendant’s argument that he received ineffective assistance of
counsel 	at 	sentencing. 	We 	therefore 	affirm 	Defendant’s
convictions.