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State v. Sosa-Hurtado

Supreme Court of Utah

October 31, 2019

State of Utah, Respondent,
v.
Yelfris Sosa-Hurtado, Petitioner.

          Heard November 16, 2018

          Third District, Salt Lake The Honorable Denise P. Lindberg No. 121902927

         On Certiorari to the Utah Court of Appeals

          Herschel Bullen, Salt Lake City, for petitioner

          Sean D. Reyes, Att'y Gen., Karen A. Klucznik, Asst. Att'y Gen., Salt Lake City, for respondent

          Associate Chief Justice Lee authored the opinion of the Court in which Chief Justice Durrant and Justice Petersen joined.

          OPINION

          Lee, Associate Chief Justice.

         ¶1 A jury convicted Yelfris Sosa-Hurtado of aggravated murder. On appeal Sosa-Hurtado challenged his conviction on the ground that there was insufficient evidence to sustain the charged aggravator for his conviction-a determination under Utah Code section 76-5-202(1)(c) that he placed another person at "great risk of death" when he killed his victim. He also asserted that the district court abused its discretion when it denied his motion for a new trial. The court of appeals concluded that there was sufficient evidence to support the "great risk of death" aggravator. And it affirmed the district court's decision to deny the motion for a new trial.

         ¶2 Sosa-Hurtado raises the same arguments on certiorari in this court. And we likewise reject them. We first affirm the aggravated murder conviction. In so doing we reaffirm and clarify the standard set forth in our case law for a determination that a murder was committed under circumstances in which the defendant caused a "great risk of death" to another person. We hold that the risk of death need not result directly from the precise act that caused the victim's death. Clarifying and extending the standard set forth in State v. Pierre, 572 P.2d 1338 (Utah 1977), and State v. Johnson, 740 P.2d 1264 (Utah 1987), we hold that Utah Code section 76-5-202(1)(c) may be satisfied if the great risk of death was created within a "brief span of time" of the act causing the murder and the acts together "formed a concatenating series of events." Pierre, 572 P.2d at 1355. We identify factors of relevance to this inquiry, including (1) the temporal relationship between the murderous act and any acts endangering a third person; (2) the spatial relationship between the third party, the murder victim, and the defendant at the time of the acts constituting the murder; and (3) whether and to what extent the third party was actually threatened by the assailant. See State v. Sosa-Hurtado, 2018 UT App 35, ¶ 31, 424 P.3d 948 (identifying these factors, which we endorse here). And we hold that there was a reasonable basis for the jury in this case to conclude that Sosa-Hurtado caused a great risk of death to another in the circumstances of the murder at issue.

         ¶3 We also affirm the denial of the motion for a new trial. We agree with the court of appeals that the district court acted well within its discretion in declining Sosa-Hurtado's request to submit supplemental evidence in support of his motion for a new trial after the ten-day time limit for filing such a motion under rule 24 of our rules of criminal procedure. And we likewise conclude that the district court did not err in its denial of the motion on its merits.

         I

         ¶4 Stephen Chavez and his father Isabel Chavez worked at a small smoke shop in Salt Lake City.[1] One day Isabel noticed a car parked outside in a manner that could endanger patrons of the shop. Isabel approached the driver of the car, Sosa-Hurtado, and twice asked him to move his car. Sosa-Hurtado refused. Stephen then went outside and asked Sosa-Hurtado to move the car. Sosa-Hurtado again refused and punched Stephen. Stephen fought back and told Sosa-Hurtado to leave. Sosa-Hurtado left.

         ¶5 Sosa-Hurtado then met with a friend, Vladimir Suarez-Campos, and the two of them crafted a plan to return to the smoke shop to fight Stephen. They returned to the shop and Sosa-Hurtado went inside. Suarez-Campos stayed outside.

         ¶6 The smoke shop consisted of a single room that was approximately fifteen feet wide and twenty-four feet long. A glass counter extended across most of the north side of the shop. Another stretched across the longer east side. The shop had one door along the west wall that faced the counter along the east.

         ¶7 Sosa-Hurtado entered the smoke shop and pulled an assault rifle from his jacket. According to Isabel's testimony, when Sosa-Hurtado entered the shop, Stephen and Isabel were standing three to four feet apart from each other behind the counter. A witness who was inside of the shop at the time of the shooting, however, said that Isabel and Stephen were closer-perhaps only two feet apart. Stephen stood at the cash register behind the north counter while Isabel stood behind the east counter. Sosa-Hurtado fired one shot at Isabel with his assault rifle, missing him but shattering a glass case, which hurled glass and wood into Isabel's leg, causing him to fall to the ground.

         ¶8 Sosa-Hurtado then turned towards Stephen. He fired a shot at Stephen, which hit Stephen's hand. Stephen fell on the floor behind the counter. Isabel began to get up and move towards Stephen. With his back to Isabel, Sosa-Hurtado leaned over the counter, positioned the rifle only inches from Stephen's chest, and shot him twice more. These shots killed Stephen. Only a few feet away, Isabel felt the air displaced by the bullets. Sosa-Hurtado exited the smoke shop and fired several shots into the air outside.

         ¶9 The State charged Sosa-Hurtado with aggravated murder, discharge of a firearm with injury, and eight counts of discharge of a firearm. The aggravated murder charge was based on the "great risk of death" aggravator under Utah Code section 76-5-202(1)(c).

         ¶10 The State also charged Suarez-Campos with murder and nine counts of discharge of a firearm. During trial, Suarez-Campos testified for the State pursuant to a plea agreement that would reduce his charges from murder and multiple counts of discharge of a firearm to manslaughter. Suarez-Campos explained that, without the plea agreement, he believed he could face twenty to twenty-five years of imprisonment.

         ¶11 Sosa-Hurtado's counsel asked Suarez-Campos about a pending aggravated burglary charge against him and suggested that the charge would also be dismissed as part of his plea deal. During a side bar conversation, the prosecution stated that the State's agreement to dismiss the aggravated burglary charge required that Suarez-Campos agree to testify against Sosa-Hurtado in that case as well (Sosa-Hurtado had also been charged with the aggravated burglary, among other charges, in a separate case). Sosa-Hurtado's counsel stated that Suarez-Campos's counsel had informed him that the aggravated burglary charge would be dismissed in exchange for his testimony in the aggravated murder case alone. The State reiterated that the plea deal with Suarez-Campos was predicated on his agreement to testify in the aggravated burglary case.

         ¶12 Sosa-Hurtado's counsel ceased questioning Suarez-Campos on the issue to prevent the State from introducing evidence that Sosa-Hurtado was charged with aggravated burglary in a separate matter. Sosa-Hurtado's counsel then apologized to the jury for his error in raising the topic, and the district court instructed the jury to disregard any reference or discussion relating to "any unrelated case being dismissed."

         ¶13 At the close of the State's case, Sosa-Hurtado moved for a directed verdict on the aggravated murder charge, arguing that there was insufficient evidence to allow the jury to conclude that Sosa-Hurtado knowingly placed someone other than Stephen at a great risk of death when he murdered Stephen. The district court denied the motion. The district court concluded that "there [was] an adequate basis for maintaining the aggravator as it exists under the law," because of the "small area" inside the smoke shop where Stephen and Isabel were located and "the injury that resulted to Isabel."

         ¶14 At trial, Sosa-Hurtado admitted that he had, on one occasion, purchased ammunition for an AK-74-the type of gun that allegedly had been used to murder Stephen.[2] On cross-examination, the State sought to establish that Sosa-Hurtado had purchased AK-74 ammunition on four separate occasions, which he denied. The State then produced receipts of ammunition purchases in an attempt to impeach his testimony, claiming that the receipts were discovered in Sosa-Hurtado's home. Sosa-Hurtado's counsel objected to the admission of the receipts, asserting that they had not been found in Sosa-Hurtado's home. The district court sustained the objection. The State apologized to the jury, stating that it had been "incorrect" in asserting that the ammunition receipts had been found in Sosa-Hurtado's home and conceding that the State "[could] not tie those purchases to [the] defendant."

         ¶15 During the jury's deliberations, the judge met with the jury without counsel present. The judge notified the jury that because it was Election Day, she would need to recess the jury to give them time to vote. The members of the jury indicated that they were close to a verdict and that they would notify the judge if they needed to reconvene the next day. Shortly thereafter, the jury informed the judge that they had reached a verdict. When the court reconvened to receive the jury's verdict, the judge informed the parties of this meeting and confirmed with the jury that she had fairly represented their discussion.

         ¶16 The jury convicted Sosa-Hurtado of aggravated murder. It also convicted him of felony discharge of a firearm with bodily injury and seven counts of felony discharge of a firearm.

         ¶17 Sosa-Hurtado filed a timely motion for a new trial along with a supporting memorandum. In the motion, Sosa-Hurtado asserted that his right to a fair trial had been prejudiced by: (1) "The State's misrepresentation of the terms of [Suarez-Campos's] plea bargain"; (2) "Prosecutorial and police misconduct"; and (3) "The court's ex parte communication with the jury." For support, the motion for new trial cited portions of the trial transcript.

         ¶18 The State opposed Sosa-Hurtado's motion, asserting in part that it lacked the evidentiary support required under Utah Rule of Criminal Procedure 24. See Utah R. Crim. P. 24(b) (2007) ("A motion for a new trial . . . shall be accompanied by affidavits or evidence of the essential facts in support of the motion.").

         ¶19 Sosa-Hurtado filed a reply. A month later, Sosa-Hurtado filed an amended motion for a new trial. He also filed four affidavits to support his motions. Sosa-Hurtado filed these documents six weeks to four months after rule 24's ten-day filing period had passed. See id. 24(c).[3] In response to these filings, the State filed two additional affidavits and requested an evidentiary hearing.

         ¶20 The district court denied the State's request for an evidentiary hearing, reasoning that it did not need a hearing to decide the motions. The district court denied Sosa-Hurtado's amended motion for a new trial because it was not filed within ten days after entry of sentence as rule 24 required at the time. The district court noted that Sosa-Hurtado did not request or receive an extension of time to file the amended motion.

         ¶21 The district court also denied Sosa-Hurtado's original motion for a new trial. The court first concluded that "except for references in the memorandum to the trial record, [Sosa-Hurtado] did not provide the required evidence or affidavits in support of his claims" as part of his motion for new trial as required by rule 24(b). Therefore, the court did not consider any of the late-filed affidavits or Sosa-Hurtado's amended motion for new trial and "review[ed] the only evidence available to it, i.e., the trial record, to determine whether any error exist[ed] that substantially prejudiced [Sosa-Hurtado's] rights." In other words, the district court considered only the materials that had been filed within rule 24's ten-day period. The district court then concluded that there was "no error or impropriety that could have had a substantial adverse effect on" Sosa-Hurtado such that a more favorable outcome would have resulted but for the errors.

         ¶22 Sosa-Hurtado appealed his convictions to the court of appeals. The court of appeals affirmed, concluding that there was sufficient evidence to support the jury's verdict and that the trial court did not abuse its discretion in denying Sosa-Hurtado's late-filed addenda to his motion for a new trial and in denying the motion. State v. Sosa-Hurtado, 2018 UT App 35, ¶ 59, 424 P.3d 948. We granted certiorari.

         II

         ¶23 Sosa-Hurtado contends that the court of appeals erred in affirming the trial court's denial of a directed verdict and concluding that the jury was presented with sufficient evidence to support the finding that he "knowingly created a great risk of death to a person other than the victim and the actor." Utah Code § 76-5-202(1)(c) (2013).[4] He next asserts that the court of appeals erred in concluding that the district court did not abuse its discretion when it declined to consider late-filed documents and an amended motion for a new trial and in affirming the district court's denial of the motion for a new trial.

         ¶24 We find each of these arguments unpersuasive. There was sufficient evidence to sustain a verdict of aggravated murder. And the district court acted within its discretion when it refused to consider late-filed documents and when it denied Sosa-Hurtado's motion for a new trial.

         A

         ¶25 A person commits "aggravated murder" under Utah law if he "intentionally or knowingly causes the death of another" under any of a range of "circumstances" described in our code. Utah Code § 76-5-202(1). One of the listed circumstances is where "the actor knowingly created a great risk of death to a person other than the victim and the actor." Id. § 76-5-202(1)(c).

         ¶26 A key question in this case concerns the scope of the "circumstances" that may be considered in deciding whether Sosa-Hurtado "knowingly created a great risk of death to a person other than the victim and the actor." Id. Our cases have long held that the relevant circumstances extend beyond the precise act that caused the death of the victim. See, e.g, State v. Pierre, 572 P.2d 1338, 1355 (Utah 1977). In Pierre we said that the statute may be satisfied if the risk was created "within a brief span of time" of the act causing the murder so long as the acts together "formed a concatenating series of events." Id. Later, in State v. Johnson, we noted that this standard "require[d] clarification" and explained that the statute is met where another person is placed "within the 'zone of danger' created by" the conduct that caused the victim's death. 740 P.2d 1264, 1266-67 (Utah 1987) (citation omitted). In so stating we indicated that the "zone of danger" test may be satisfied even though "the endangered person is physically removed from the defendant's conduct" at the time of the killing. Id. at 1267. Yet we emphasized that a determination of whether the statutory standard is met "require[s] a careful consideration of a defendant's intent and knowledge of the risk and the endangered person's proximity in time and place to the murder." Id. We explained, in other words, that "[a] proper reading of the statute requires an examination of the manner in which the killing occurred and consideration of whether the knowing and intentional killing took place under circumstances in which the actor knowingly exposed someone other than himself and his victim to a great risk of death because of his knowing or intentional murder of his victim." Id. at 1266.

         ¶27 We uphold the verdict in this case under the standard set forth in Pierre and Johnson. In so doing we reject an alternative standard proposed by Sosa-Hurtado and endorsed by the dissent-a standard holding that the requirements of Utah Code section 76-5-202(1)(c) are met only where the murderous act itself creates a "great risk of death to a third party."[5] Infra ¶ 111. This standard is incompatible with the structure of the statute and has been squarely rejected by our precedent. Consequently, we hold that a person may be guilty of knowingly creating a "great risk of death to a person other than the victim and the actor" if he did so "within a brief span of time" of the act causing the murder and the acts together "formed a concatenating series of events." Pierre, 572 P.2d at 1355.

         ¶28 We also identify considerations that may inform the decision whether a "series of events" is sufficiently connected or related to meet the standard set forth in our cases. Echoing the court of appeals' excellent opinion on this point, we identify a few factors of relevance to the inquiry into whether the acts causing a great risk of death are sufficiently connected to the act of murder. The factors include "(1) the temporal . . . relationship between any actions the defendant may have taken towards the third party and the acts constituting the murder; (2) the spatial relationship . . . between the third party, the murder victim, and the defendant at the time of the acts constituting the murder; and (3) whether and to what extent the third party was actually threatened by the assailant, either by direct threats or by indirect means such as the risk of stray or ricocheting bullets." State v. Sosa-Hurtado, 2018 UT App. 35, ¶ 31, 424 P.3d 948.

         ¶29 Applying these factors, we hold that there was sufficient evidence in this case to sustain a verdict of aggravated murder. The knowing risk was created most obviously when Sosa-Hurtado fired his assault rifle directly at Isabel. That shot created a great risk of death to Isabel. And a reasonable jury could conclude that such a shot was an element of the "circumstances" of the murder of Stephen. Here we have temporal and spatial proximity and an actual threat against Isabel. Sosa-Hurtado fired at Isabel seconds before he shot at Stephen, he shot at Stephen when Isabel was close by, and there was both an intent to harm or kill Isabel and an act specifically directed at Isabel. We affirm the jury verdict on that basis.

         ¶30 In the sections below we first assess the language and structure of the operative statute, demonstrating that it is consistent with the standard that we apply and incompatible with the contrary approach proposed by the dissent. Second, we describe and clarify our case law in this field, explaining how it sustains our approach and undermines the standard proposed by the dissent. Third, we conclude by applying the governing legal standard to the facts of this case and explaining the basis for our conclusion that there is sufficient evidence to sustain the jury verdict on the charge of aggravated murder.

         1

         ¶31 The governing statutory scheme is straightforward. It provides that "[c]riminal homicide constitutes aggravated murder if the actor intentionally or knowingly causes the death of another under any of the circumstances" enumerated by statute. Utah Code § 76-5-202(1). The listed circumstances include the following: "(a) the homicide was committed by a person who is confined in a jail or other correctional institution"; "(b) the homicide was committed incident to one act, scheme, course of conduct, or criminal episode during which two or more persons were killed, or during which the actor attempted to kill one or more persons in addition to the victim who was killed"; "(c) the actor knowingly created a great risk of death to a person other than the victim and the actor"; "(d) the homicide was committed incident to an act, scheme, course of conduct, or criminal episode during which the actor committed or attempted to commit aggravated robbery, robbery, rape, rape of a child, object rape, object rape of a child, forcible sodomy, sodomy upon a child, forcible sexual abuse, sexual abuse of a child," or other listed crimes; "(e) the homicide was committed incident to one act, scheme, course of conduct, or criminal episode during which the actor committed the crime of abuse or desecration of a dead human body"; "(f) the homicide was committed for the purpose of avoiding or preventing an arrest of the defendant or another by a peace officer acting under color of legal authority or for the purpose of effecting the defendant's or another's escape from lawful custody"; and "(g) the homicide was committed for pecuniary gain." Id.

         ¶32 A key question presented is the timeframe in which the "circumstances . . . creat[ing] a great risk of death to a person other than the victim and the actor" must arise. Id. Sosa-Hurtado has asked us to interpret the statute to limit the relevant "circumstances" to the specific act that caused the victim's death.

         ¶33 This limitation does not follow from the structure of the statute. Given differences in statutory language, we agree that the relevant timeframe for assessing the "great risk of death" aggravator is narrower than the timeframe for assessing other statutory aggravators.[6] But it does not follow that the relevant timeframe is the narrowest one imaginable-the murderous act itself.

         ¶34 In fact, the statute's use of the word "circumstances" strongly suggests that such a limitation is inappropriate. Under the statute, a "[c]riminal homicide constitutes aggravated murder if the actor intentionally or knowingly causes the death of another under . . . circumstances" in which "the actor knowingly created a great risk of death" to another person. Id. (emphasis added). The circumstances of a murder are not limited to the final act that specifically causes the victim's death.[7] When we speak of the "circumstances" of an event we are talking about "a specific part, phase, or attribute of the surroundings or background of an event." See Circumstance, Webster's Third New International Dictionary (2002). And when we speak of the "circumstances" of a "murder" or "homicide," in particular, we are referring to any of various conditions or factors in the setting or surroundings of the criminal act.[8]

         ¶35 For these reasons we find no basis for the conclusion that the statute requires proof that the defendant knowingly caused a "great risk of death" to another person at the precise moment of his murderous act. In fact, the term "circumstances" cuts against this reading.

         2

         ¶36 The statute itself may not prescribe a precise timeframe for the assessment of whether the defendant "knowingly caused a great risk of death" under the "circumstances" of the homicide. Indeed the relevant timeframe may be a matter that eludes a clear, bright line. But our cases have foreclosed the standard advocated by Sosa-Hurtado. We have held that it is enough that the act that caused the great risk of death be one in a "concatenating series of events," State v. Pierre, 572 P.2d 1338, 1355 (Utah 1977), leading to the murder. In other words, the act must merely be connected to the murderous act in a way that places the third person within the "zone of danger" at the time of the murder. State v. Johnson, 740 P.2d 1264, 1267 (Utah 1987). And we have identified relevant factors for determining whether the "events" are so connected to the murder that they should count as an element of the relevant "circumstances"-factors such as the defendant's intent and the spatial and temporal proximity between the murder and the act causing a great risk of death. Id.

         ¶37 We first announced a standard for the governing timeframe under Utah Code section 76-5-202(1)(c) in Pierre. In that case we said that the "great risk of death" aggravator is triggered where the events causing such a risk occurred "within a brief span of time in which were formed a concatenating series of events" surrounding the murder. Pierre, 572 P.2d at 1355. In so stating we clearly indicated that the act causing the great risk of death did not have to be the murderous act itself. See infra ¶ 90 (conceding that under Pierre "the great risk of death to another did not need to be the same act that killed the victims for the aggravator to apply"). Our Johnson opinion embraced and extended the underspecified Pierre standard. In Johnson we noted that we had "previously interpreted" section 76-5-202(1)(c) "to apply when the defendant created a setting in which he placed persons other than the victims at great risk of death 'within a brief span of time in which were formed a concatenating series of events.'" 740 P.2d at 1266 (citing Pierre, 572 P.2d at 1355). Yet we acknowledged that "[t]hat standard require[d] clarification to permit a meaningful application of the language of section 76-5-202(1)(c)." Id. And we provided clarification.

         ¶38 In clarifying the standard, we held that "the statute requires an examination of the manner in which the killing occurred and consideration of whether the knowing and intentional killing took place under circumstances in which the actor knowingly exposed someone other than himself and his victim to a great risk of death because of his knowing or intentional murder of his victim." Id. We further indicated our agreement with the explanation set forth in State v. Price, which provides that the relevant "facts" to be considered "must include a knowing or purposeful state of mind visa-vis the creation of a great risk of death, that there be a likelihood or high probability of great risk of death created, not just a mere possibility . . . and that there be at least another person within the 'zone of danger' created by defendant's conduct." Johnson, 740 P.2d at 1267 (quoting State v. Price, 478 A.2d 1249, 1260 ( N.J.Super. Ct. Law Div. 1984)). We also noted that "there may be circumstances in which a defendant may be guilty although the endangered person is physically removed from the defendant's conduct" while emphasizing "that such cases require a careful consideration of a defendant's intent and knowledge of the risk and the endangered person's proximity in time and place to the murder." Id.

         ¶39 The standard developed in our case law is in line with that applied by the court of appeals in its decision in this case. In the decision before us on review on certiorari, the court of appeals stated that the applicability of the aggravator under section 76-5-202(1)(c) is "often influenced by three main factors: (1) the temporal . . . relationship between any actions the defendant may have taken towards the third party and the acts constituting the murder; (2) the spatial relationship . . . between the third party, the murder victim, and the defendant at the time of the acts constituting the murder; and (3) whether and to what extent the third party was actually threatened by the assailant, either by direct threats or by indirect means such as the risk of stray or ricocheting bullets." State v. Sosa-Hurtado, 2018 UT App 35, ¶ 31, 424 P.3d 948 (citations omitted). The court emphasized that these factors are not exhaustive. Id. ¶ 32. And it explained that the ultimate inquiry is whether there was a "great risk of death" to a third person resulting from an act of homicide and "not just a mere possibility."[9] Id. ¶ 28 (citation omitted).

         ¶40 The court of appeals had it exactly right. The scope of the "great risk of death" timeframe has not been pinpointed in our case law. But we have stated clearly that the risk need not be linked solely to the precise act that caused the murder. And we have identified factors relevant to the inquiry into whether there was a "great risk of death" (and not just a possibility) imposed as a result of the circumstances of the murder. Here, a reasonable jury could easily find that those factors support the conclusion that Sosa-Hurtado caused a great risk of death to Isabel during the murder of Stephen: Sosa-Hurtado fired at Isabel seconds before shooting Stephen, he shot at Stephen when Isabel was close by, and he specifically acted with the intent to harm or kill Isabel. There is sufficient evidence to support the jury's conclusion that Sosa-Hurtado knowingly created a great risk of death to Isabel in the circumstances of the homicide. We affirm the jury verdict on that basis.

         ¶41 The dissent disagrees based on the conclusion that the "great risk of death" must result from the "action that constituted the homicide"-here, the two deadly shots fired at Stephen. Infra ¶ 101. That conclusion is premised on the notion that the standard announced in Pierre was overruled "sub silentio" in Johnson- specifically, that Johnson implicitly held that an act in a "series of events was not sufficient . . . to satisfy the section 76-5-202(1)(c) aggravator," but instead required that the precise act that caused the victim's death also caused the great risk of death to another person. Infra ¶ 100. The dissent reaches this conclusion despite some undeniable features of the Johnson opinion: (a) the Johnson opinion expressly states that it is only clarifying the standard in Pierre, Johnson, 740 P.2d at 1266; (b) in Johnson we never came close to stating that a "series of events" is insufficient, and in fact restated the "concatenating series of events" standard favorably, id.; (c) Johnson emphasized the need to consider the "circumstances" surrounding the murderous act, id.; and (d) Johnson never says that the "murderous act itself" must create the great risk of death.

         ¶42 Despite these problems, the dissent insists on a reading of the Johnson opinion that attributes to that court an intent to take a 180-degree turn in our law. It bases this reading on inferences it draws from the facts of Johnson. Specifically, the dissent notes that in Johnson the court's focus was on "whether the act that killed the victim-in that case, the battery [of the husband]-placed the third party [the wife] in a great risk of death." Infra ¶ 97. Because our analysis in Johnson inquired into whether the battery of the husband (the act that caused his death) created a great risk of death to the wife (who was at the time of the murder physically removed from her husband-in a different part of a building where the two were being held), the dissent insists that Johnson was really rejecting the "concatenating series of events" standard and replacing it with a "great risk of harm" from the murderous act itself standard. See infra ¶¶ 99-101.

         ¶43 This is a misread of Johnson. The Johnson court didn't come close to abandoning the notion that a connected "series of events" could be sufficient to trigger the section 76-5-202(1)(c) aggravator. To the contrary, the Johnson court recited and endorsed the "series of events" standard-restating it and expressly clarifying it by identifying factors of relevance to whether acts in a series might trigger the aggravator (despite not being the precise act that caused death). Johnson, 740 P.2d at 1267. The Johnson court's focus on "whether the 'manner' by which the defendant killed the victim" created a great risk of harm, infra ¶ 97, is not an indication of a changed standard. It is merely an application and clarification of the Pierre standard to the facts of the case.

         ¶44 In Johnson the court focused on whether the battery of the husband created a great risk of death to the wife not because the murderous act is the only relevant factor under section 76-5-202(1)(c), but because this was the defendant's only act that created a great risk of death to another person.[10] In Johnson there were no gunshots fired at another immediately before the killing (as in this case). So the court in Johnson had no occasion to decide the question we are presented with here-as to whether such gun shots could count as a step in a connected "series." It was only deciding whether the murderous act (the battery of the husband) was an act that created a great risk of death to another. And the standard the court expressly announced is one that both restates the connected "series" holding from Pierre and that expressly clarifies it by announcing factors that help tell us when acts in a series are sufficiently connected.

         ¶45 The Johnson opinion indicates that the factors of relevance to the Pierre inquiry include the "defendant's intent and knowledge of the risk and the endangered person's proximity in time and place to the murder." Johnson, 740 P.2d at 1267. And the ultimate question is whether there was "at least another person within the 'zone of danger' created by [the] defendant's conduct." Id. (quoting Price, 478 A.2d at 1260). The dissent infers that the relevant "conduct" must be limited to the "action that constituted the homicide." See infra ¶¶ 96- 101. But the reference to "conduct" does not answer the question whether it is the murderous act alone that counts or whether other acts in a connected "series" should also count. The term "conduct" is at worst ambiguous as to whether it sweeps to include other acts in a connected series. And the dissent's insistence on the narrow murderous act formulation cannot be reconciled with the terms and conditions of the Johnson opinion. The Johnson court explicitly noted that "there may be circumstances in which a defendant may be guilty although the endangered person is physically removed from the defendant's conduct." 740 P.2d at 1267 (emphasis added). A key factor in evaluating such circumstances, in the Johnson court's view, is "the endangered person's proximity in time and place to the murder." Id. (emphasis added). That clearly indicates that the timeframe is not limited to the precise act that caused the victim's death. It would make no sense to consider the time proximate to the murderous act if that act was the only "conduct" we considered for purposes of applying the aggravator. We would simply assess the endangered person's condition at the exact time of the murderous act without any consideration of the person's condition at times proximate to that act. And that approach is incompatible with what we said in Johnson about the circumstances that inform our analysis.[11]

         ¶46 Our cases have stated a clear standard. The governing standard is not a bright line, but it is the standard prescribed in our case law. We accordingly retain it, as it is well-established in our cases, is consistent with the statutory text, and is sufficiently workable in practice.

         3

         ¶47 We also conclude that there was a sufficient basis for a guilty verdict on the charge of aggravated murder under the governing standard. Sosa-Hurtado perpetrated two separate acts that created a great risk of death to Isabel and that were part of a "concatenating series of events" leading to the murder of Stephen. The first was the shot directed at (and injuring) Isabel. The second was the initial shot aimed at Stephen-a shot that hit him in the hand when Isabel was only a few feet away. A reasonable jury could conclude that both of these acts created a great risk of death to Isabel and that both were part of the "concatenating series of events" leading to the murder of Stephen.

         ¶48 A concatenating series of events is a series that is "linked" together in a meaningful way. See Concatenate, Webster's Third New International Dictionary (2002) (defining "concatenate" as "to link together"). The link between the acts in a "series" of events leading to a murder may be established based on the "defendant's intent and knowledge of the risk and the endangered person's proximity in time and place to the murder." State v. Johnson, 740 P.2d 1264, 1267 (Utah 1987). And here both the defendant's state of mind and Isabel's close proximity in time and place to the murder of Stephen sustain a close linkage between these events. See State v. Sosa-Hurtado, 2018 UT App 35, ¶ 31, 424 P.3d 948 (identifying temporal relationship, spatial relationship, and threat to the third party as factors relevant to the inquiry called for by our cases).

         ¶49 Sosa-Hurtado's intent and knowledge are evident. He was defeated[12] in a fistfight with Stephen and soon came back with an assault rifle to seek revenge. When he saw that Isabel was in the way, Sosa-Hurtado shot at him directly. That shot alone is powerful evidence of Sosa-Hurtado's state of mind toward Isabel. Sosa-Hurtado had more than mere knowledge that he was creating a great risk of death to Isabel. He intended to create that risk-or perhaps even to kill him. That is a powerful indicator of the connection between the shots aimed at Stephen and the initial shot aimed at Isabel. And it thus provides strong support for the jury verdict of aggravated murder.

         ¶50 The jury could properly have concluded that there was a close causal connection between the shot aimed at Isabel and the shots that killed Stephen. The evidence could reasonably sustain the conclusion that Sosa-Hurtado shot at Isabel to get him out of the way-so he could proceed with the job of avenging his earlier defeat at the hands of Stephen. Under this view of the evidence, it could be said that "the knowing and intentional killing took place under circumstances in which the actor knowingly exposed someone other than himself and his victim to a great risk of death because of his knowing or intentional murder of his victim." Johnson, 740 P.2d at 1266 (emphasis added). And this further sustains the conclusion that the danger intentionally caused to Isabel was an element of the "circumstances" leading to the murder of Isabel.

         ¶51 This is also reinforced by the "close proximity in time and place" between the killing and the shot fired at Isabel. The record does not tell us precisely how much time elapsed between the kill shots fired at Stephen and the initial shot fired at Isabel, but it seems clear that it was only a matter of seconds.[13] That also reinforces the above-noted linkage between the two sets of shootings. Again, the jury could properly have concluded that Sosa-Hurtado's shot at Isabel was aimed at furthering his ultimate goal of a revenge-killing of Stephen. And the temporal proximity of the two shootings reinforces that conclusion.

         ¶52 The same goes for the spatial proximity of the shootings. All of the shootings took place within the same small smoke shop- just twenty-four feet by fifteen feet. Thus Sosa-Hurtado could not have been more than a couple of feet away from where he shot at Isabel when he turned to take the execution shots at Stephen. This again confirms that the killing and the initial shot at Isabel were part of a series of "concatenating events" under our cases, or in other words that Isabel was ...


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