State v. Makaya

2020 UT App 152
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
NEPHI A DELINO M AKAYA,
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 H AGEN authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and R YAN 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
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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.
BACKGROUND2
¶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.”

State v. Makaya
20180989-CA 	3 	2020 UT App 152
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

State v. Makaya
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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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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

State v. Makaya
20180989-CA 	6 	2020 UT App 152
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

State v. Makaya
20180989-CA 	7 	2020 UT App 152
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.

State v. Makaya
20180989-CA 	8 	2020 UT App 152
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

State v. Makaya
20180989-CA 	9 	2020 UT App 152
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

State v. Makaya
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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,

State v. Makaya
20180989-CA 	11 	2020 UT App 152
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.