District Court, Salt Lake Department The Honorable Robin W.
Reese No. 121909903
Herschel Bullen, Attorney for Appellant
D. Reyes and William M. Hains, Attorneys for Appellee.
Kate A. Toomey authored this Opinion, in which Judges Stephen
L. Roth and Michele M. Christiansen concurred.
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.
Late one Saturday night,  Mary 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."
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.
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.
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
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.
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
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.
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 Reyos of
aggravated murder. The jury also convicted Reyos of
possession or use of a firearm by a restricted person.
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
AND STANDARDS OF REVIEW
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. "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
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 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).
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.
Admissibility of John's Out-of-Court Statements
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 ...