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State v. Reyos

Court of Appeals of Utah

July 6, 2018

State of Utah, Appellee,
Frank Paul Reyos, Appellant.

          Third District Court, Salt Lake Department The Honorable Vernice S. Trease No. 141910332

          Teresa L. Welch, Attorney for Appellant

          Sean D. Reyes and Kris C. Leonard, Attorneys for Appellee

          Judge Michele M. Christiansen authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.



         ¶1 A jury convicted Defendant Frank Paul Reyos of three counts of aggravated robbery, all first degree felonies, with an enhanced penalty under Utah Code section 76-3-203.1 (the Group Crime Enhancement) for having "acted in concert with two or more persons." Defendant contends that his trial counsel was ineffective for failing to object to two eyewitness identifications as unreliable. He also contends that the evidence was insufficient to support his aggravated robbery convictions and to support application of the Group Crime Enhancement. We affirm.


         ¶2 On the evening of September 7, 2012, three friends (Witness One, Witness Two, and Witness Three) met at a bar in downtown Salt Lake City. Witness One drank three beers, Witness Two drank one cocktail, and Witness Three drank one beer and one cocktail. At one point, the friends stepped into an alley behind the bar to smoke a cigarette. Although it was dark outside, there was ambient lighting in the alley from a nearby lamppost and a few "parking lights." The alley was designed so that vehicles had to enter and leave by the same route, and there were no surveillance cameras in the alley.

         ¶3 Approximately ten minutes after the friends went outside, an "older, four-door, . . . dark-green Honda" with tinted windows drove into the alley and made a U-turn. The driver and the person in the passenger seat were both females. The driver stopped the car approximately thirty feet from the friends, angling the car toward the alley's exit. Two men then got out of the back seat of the car and started to approach the friends. As they approached, one of the men asked the friends, "Does this place ID?" Witness One responded, "Yes, it's a bar. They will ID." One of the men (Robber One) stopped approximately three to five feet from Witnesses One and Two. The second man (Robber Two) stopped less than two feet from Witness Three, who was separated from Witnesses One and Two by a "big, metal thing."

         ¶4 Both robbers pulled out guns and told the friends to "[g]ive us all your shit." Witnesses One and Two remembered Robber One's gun as having a long barrel-approximately eight to ten inches long. Witness One stepped slightly in front of Witness Two to stop Robber One from getting any closer to Witness Two. Witness One gave Robber One his wallet and cell phone, and Witness Two gave Robber One her purse. Witness Three gave Robber Two a small amount of cash. During this time, Robber One did not point his gun at Witnesses One or Two, instead keeping it by his side. The robbers then returned to the car, dropping Witness One's cell phone in the alley on the way. Once the robbers were in the back seat of the car, the female driver "sped" out of the alley. The whole event lasted approximately two to three minutes.

         ¶5 Shortly thereafter, Witness One called 911. When the responding officer arrived, he took a description of Robber One from Witnesses One and Two; Witness Three had already left the scene. Witness One described Robber One as a twenty-nine-year-old Hispanic male, with a "thin build," weighing 160 pounds, with a shaved head and no facial hair. He stated that Robber One was heavily tattooed, with tattoos on his arms, legs, neck, and face. Witness One specifically reported that Robber One had a teardrop tattoo on his face. Witness One stated that the robbers left in a two-door car with tinted windows and that the car was occupied by two females and two males. Witness Two reported that the car had four doors. A detective took over the case the next day.

         ¶6 Three days later, a different detective was looking for Defendant on an unrelated matter. The relevant car in that matter was a 1997 green Honda Accord. The detective located the car and later observed Defendant driving it with a female passenger. When the detective investigating the alley robberies heard about Defendant and the car, he suspected that Defendant might have participated in the alley robberies.

         ¶7 The investigating detective put together a photo lineup, using a photo of Defendant and five photos of other men with similar characteristics, including facial tattoos and no hair (or a shaved head). The photos were in color and were the same size. The investigating detective asked another detective to administer the photo lineup to Witnesses One and Two.[2] Six days after the robberies, the other detective conducted a photo lineup with Witness Two while she was at work. The detective explained the photo lineup procedure and told Witness Two that she should not feel obligated to pick anyone. The detective then showed the photos to Witness Two, and she identified Defendant as Robber One. When the detective asked about Witness Two's confidence level in her choice, she stated it was "very high." Four days later, the same detective repeated the photo lineup procedure with Witness One at the police station. Witness One also picked Defendant's photo as the person who robbed them at gunpoint. He later testified that he was "very confident" in his identification.

         ¶8 Thereafter, the State charged Defendant with three counts of aggravated robbery, first degree felonies, with each count enhanced to "an indeterminate prison term of not less than five years in addition to the statutory minimum prison term for the offense, and which may be for life" under the Group Crime Enhancement provision. See Utah Code Ann. § 76-3-203.1(4)(e) (LexisNexis 2012).

         ¶9 At trial, Witnesses One and Two both identified Defendant as Robber One and discussed their observations from the night of the robbery. Defendant's trial counsel focused on attacking the eyewitnesses' identifications of Defendant through cross-examination and in closing argument. He also presented evidence that, shortly after the robbery occurred, Defendant's picture "was blasted all over the news online, on TV, [and] in print" in connection with an unrelated matter. Trial counsel suggested to the jury that the eyewitnesses "made the mistake of subconsciously seeing that information, and they recognized that face from online, and that's why they picked [Defendant] . . . out of the lineups." The jury was also given an instruction advising them about various factors that affect the reliability of eyewitness identifications. See State v. Long, 721 P.2d 483, 492-93 (Utah 1986) (requiring trial courts to give a cautionary jury instruction "whenever eyewitness identification is a central issue in a case and such an instruction is requested by the defense").

         ¶10 The jury ultimately found Defendant guilty of three counts of aggravated robbery and determined that the Group Crime Enhancement applied. Defendant appeals.


         ¶11 Defendant contends that his trial counsel was constitutionally ineffective for failing to challenge the admissibility of the eyewitnesses' identifications of him. "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 prove his ineffective assistance of counsel claim, Defendant must demonstrate that his "counsel's performance was objectively deficient" and that "a reasonable probability exists" that he "would have obtained a more favorable outcome at trial" but for his counsel's deficient conduct. Id.

         ¶12 Defendant also contends that the evidence was insufficient to support his convictions and the application of the Group Crime Enhancement. Defendant concedes that he did not preserve these arguments, and he seeks review under the plain-error and ineffective-assistance-of-counsel exceptions to the preservation requirement. A "trial court plainly errs if it submits the case to the jury and thus fails to discharge a defendant when the insufficiency of the evidence is apparent to the court." State v. Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346. "[T]o establish plain error, a defendant must demonstrate first that the evidence was insufficient to support a conviction of the crime charged and second that the insufficiency was so obvious and fundamental that the trial court erred in submitting the case to the jury." Id. When a defendant challenges the sufficiency of the evidence, we review "the evidence and all inferences drawn therefrom in a light most favorable to the jury's verdict." Id. ¶ 18. As explained above, Defendant's ineffective assistance of counsel claims present questions of law, and Defendant must demonstrate that his counsel's performance was deficient and that the deficient performance prejudiced his defense. See Clark, 2004 UT 25, ¶ 6.


         I. Eyewitness Identifications

         ¶13 Defendant contends that trial counsel was ineffective for failing to object to the eyewitnesses' identifications of him.

         ¶14 To prevail on his ineffective assistance of counsel claim, Defendant must show both that trial counsel's performance was deficient and that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). In demonstrating that counsel's performance was deficient, Defendant must "rebut the strong presumption that 'under the circumstances, the challenged action might be considered sound trial strategy.'" State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (quoting Strickland, 466 U.S. at 689).

         ¶15 In State v. Ramirez, 817 P.2d 774 (Utah 1991), our supreme court explained the standard for Utah courts to use in analyzing the admissibility of eyewitness identifications. See id. at 779, 781- 82. The supreme court outlined five factors courts should consider in determining whether an eyewitness identification is "sufficiently reliable that its admission and consideration by the jury will not deny the defendant due process." Id. at 779, 781. "The ultimate question to be determined is whether, under the totality of the circumstances, the identification was reliable." Id. at 781. The five Ramirez factors include:

"(1) [T]he opportunity of the witness to view the actor during the event; (2) the witness's degree of attention to the actor at the time of the event; (3) the witness's capacity to observe the event, including his or her physical and mental acuity; (4) whether the witness's identification was made spontaneously and remained consistent thereafter, or whether it was the product of suggestion; and (5) the nature of the event being observed and the likelihood that the witness would perceive, remember and relate it correctly. This last area includes such factors as whether the event was an ordinary one in the mind of the observer during the time it was observed, and whether the race of the actor was the same as the observer's."

Id. (alteration in original) (quoting State v. Long, 721 P.2d 483, 493 (Utah 1986)).

         ¶16 Because Defendant challenges his convictions on the basis of ineffective assistance of counsel, "we are not directly tasked with determining whether the eyewitness testimony was admissible." See State v. Craft, 2017 UT App 87, ¶ 18, 397 P.3d 889. Nevertheless, the admissibility of the evidence necessarily informs our determination ...

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