State v. Nielsen

This opinion is subject to revision before final

publication in the Pacific Reporter.

2014 UT 10

IN THE

SUPREME COURT OF THE STATE OF UTAH

———————

STATE OF UTAH,

Plaintiff and Appellee,

v.

CODY LYNN NIELSEN,

Defendant and Appellant.

———————

No. 20080709

Filed April 29, 2014

———————

First District, Logan Dep’t

The Honorable Clint S. Judkins

No. 011100412

———————

Attorneys:

Sean D. Reyes, Att’y Gen., Karen A. Klucznik, Asst. Att’y Gen.,

Salt Lake City, Tony C. Baird, Logan, for appellee

Craig T. Peterson, Bountiful, for appellant

———————

JUSTICE LEE authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,

JUSTICE DURHAM, and JUSTICE PARRISH joined.

———————

JUSTICE LEE, opinion of the Court:

¶1 Cody Nielsen was convicted of the aggravated murder of

Trisha Autry and sentenced to life without parole. On this appeal,

Nielsen raises a series of challenges to the venue for his trial—a

Cache County trial with a jury comprised of Box Elder County

residents. He also questions the sufficiency of the evidence to sus-

tain lesser offenses of kidnapping and aggravated kidnapping and

the sufficiency of the evidence to sustain his bindover for trial on

aggravated murder. Finally, he asserts that his convictions for

kidnapping and desecration of a body should have merged with

his conviction of aggravated murder, necessitating vacatur of the-

se lesser offenses.

STATE v. NIELSEN

Opinion of the Court

¶2 We affirm Nielsen’s conviction of and sentence for aggra-

vated murder and desecration of a body, but reverse and vacate

his kidnapping and aggravated kidnapping convictions on mer-

ger grounds.

I

¶3 On the morning of June 24, 2000, fifteen-year-old Trisha

Autry disappeared from her home in Hyrum, Utah. Her disap-

pearance remained a mystery for nearly a year, until the remains

of her body and clothing were discovered buried in a hole at the

U.S.D.A. Predator Research Facility in the nearby town of Mill-

ville. Nielsen, an employee at the Predator Facility, was eventual-

ly arrested and charged with her murder.

¶4 According to the evidence gathered by law enforcement,

Nielsen first met Trisha in April of 2000. She was walking home

from school with a friend when he passed them in his truck sever-

al times. He eventually pulled up and began talking to them.

Nielsen gave them his pager number, and told them to call him if

they ―ever want[ed] to go do something, party, drink, whatever.‖

¶5 A few days later, Trisha was walking home with a different

friend when Nielsen’s truck passed them again. Trisha’s friend

testified that Trisha became agitated, and told her that the man in

the truck—whom she called ―Sam‖—had been following her and

calling her at home. The two girls ran away from the truck when it

passed again, and were eventually picked up by their neighbor.

The neighbor testified that the girls were ―pretty nervous.‖ After

this second incident, Trisha began calling home after school ―pret-

ty much every day‖ and asking her family members to come and

pick her up so that she wouldn’t have to walk home.

¶6 Trisha’s mother awoke early on the morning of June 24 and

discovered that Trisha was not in her bedroom. After the family

failed to find her, Trisha’s mother called the police to report Tri-

sha missing at about 6:30 a.m.

¶7 In Trisha’s room, her mother noticed that many of Trisha’s

belongings were missing: the clothing she had worn the previous

day, a pair of old tennis shoes that Trisha didn’t like, and a bra

that she only wore when sleeping. The missing clothes led her

mother to deduce that she hadn’t left to meet anyone, because Tri-

sha would have changed into clean clothes, and only wore dirty

clothes ―if she wasn’t going anywhere.‖ Based on this and other

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Opinion of the Court

evidence, Trisha’s mother concluded that she had gone for a soli-

tary walk. The immediate investigation into Trisha’s disappear-

ance failed to produce any information on her whereabouts.

¶8 A few weeks earlier, in late May or early June of 2000, one

of Nielsen’s coworkers, William Pitt, noticed Nielsen digging a

large hole on the grounds of the Predator Facility, using a backhoe

and grader that he used in his job at the facility. When Pitt asked

him about the hole, Nielsen told him he wanted to ―see how deep

of a hole he could dig‖ with the backhoe. Pitt told Nielsen to fill

the hole because it was a safety hazard. In the following months,

Pitt and another employee, Doris Zemlicka, observed Nielsen

digging around the area with a backhoe, creating a large pile of

trash and debris in and on the now-filled-in hole. Eventually they

noticed that Nielsen burned the pile of trash and debris over the

course of an entire day.

¶9 Almost one year later, the efforts of a private investigator

led police to identify Nielsen as a suspect in Trisha’s disappear-

ance and to home in on the Predator Facility. Cadaver dogs were

brought in as an element of a search of the facility. The dogs alert-

ed on the area of the hole dug by Nielsen. In the ensuing excava-

tion, law enforcement discovered a part of Trisha’s jawbone, sev-

eral hundred other bone fragments, her shoes, bra, and part of the

waistband of her underwear. The police interviewed Nielsen, who

admitted that he had met Trisha and sometimes went by the nick-

name ―Sam.‖ Under further questioning, Nielsen neither admitted

nor denied that he killed Trisha.

¶10 Nielsen was charged with aggravated murder, obstruction

of justice, and desecration of a dead body. After a preliminary

hearing, the trial court bound him over as charged. Nielsen sub-

sequently filed a motion for a change of venue—from Cache

County to Davis County—asserting a potential for jury bias

against him due to extensive pretrial publicity in Cache County.

The State did not oppose the motion, which was granted by the

trial court.

¶11 For reasons unclear from the record, the trial court did not

immediately transfer the case to Davis County. Instead, ongoing

pretrial proceedings continued in Cache County. About a year lat-

er, in September 2002, defense counsel raised the venue issue

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STATE v. NIELSEN

Opinion of the Court

again, this time seeking a trial in Box Elder County instead of Da-

vis. Again, the State did not object, and the trial court agreed.

¶12 Again, however, the case was not immediately transferred.

Instead, the parties’ attention turned to concerns regarding the

size and security of the courtroom facilities in Box Elder County.

In light of these concerns, the State suggested that the trial be held

in Cache County; the defense objected. Ultimately, the trial court

ordered that the trial be held in Cache County, but with jurors

chosen in and transported from Box Elder County.

¶13 Before trial, the prosecution amended the information,

charging Nielsen with one count of aggravated murder, two

counts of desecration of a human body, one count of aggravated

kidnapping, and one count of kidnapping. At trial, after the State

had concluded its case-in-chief, the defense moved for a directed

verdict on all five charges. The trial court denied the motion.

¶14 The jury ultimately convicted Nielsen as charged, finding

that the kidnapping and aggravated kidnapping charges served

as the statutory aggravators required to sustain the aggravated

murder charge. The trial court noted that kidnapping was a lesser-

included offense of aggravated kidnapping, however, and ruled

that the kidnapping conviction should merge into aggravated

kidnapping. For reasons unclear on the record, however, the

court’s final judgment failed to reflect the ruling on merger—

indicating instead that Nielsen was convicted on both the kidnap-

ping and aggravated kidnapping charges.

¶15 After returning its verdict, the jury also heard evidence that

Nielsen had been previously convicted of assault. At the time the

crime was committed, a prior felony conviction involving ―the use

or threat of violence to a person‖ was a statutory aggravator for

aggravated murder. UTAH CODE § 76-5-202(1)(h) (2000). But alt-

hough Nielsen had been charged and convicted on a felony as-

sault charge, the conviction had been statutorily reduced to a class

A misdemeanor under Utah Code section 76-3-402. The jury re-

ceived a copy of the criminal record and concluded that Nielsen’s

crime was a felony involving the use of violence, and considered

it as a statutory aggravator for sentencing purposes.

¶16 Nielsen’s aggravated murder conviction triggered the capi-

tal sentencing statute. UTAH CODE § 76-3-207. Under that statute,

the jury exercises wide discretion when determining what sen-

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tence to impose, and can consider ―any . . . facts in aggravation or

mitigation of the penalty that the court considers relevant to the

sentence.‖ Id. § 76-3-207(2)(1)(iv). Of the three possible sentences

that the jury could have imposed (life, life without the possibility

of parole, and death), the jury sentenced Nielsen to life without

the possibility of parole. He was also sentenced to fifteen years to

life in prison for the aggravated kidnapping charge and up to five

years in prison for each count of desecration of a human body. His

sentences were to run consecutively.

¶17 Nielsen filed a timely motion for new trial in April 2004.

For reasons not entirely clear from the record, that motion was left

pending—without Nielsen ever submitting a memorandum in

support and without any ruling disposing of the motion—for over

four years. Eventually, in July 2008, the district court issued two

separate orders finally disposing of Nielsen’s pending motion.

Nielsen filed two separate notices of appeal, each within thirty

days of the district court’s orders.

¶18 The parties appear to concede the timeliness of Nielsen’s

appeal, and we see no reason to disagree. Under rule 4(b)(1) of the

Utah Rules of Appellate Procedure, the thirty-day period for Niel-

sen’s notice of appeal was to ―run[] from the entry of the [district

court’s] order disposing of the motion‖ for new trial. It appears

from the record that the trial court did not ―dispos[e] of‖ the mo-

tion until July 2008, so we conclude that Nielsen filed a timely no-

tice of appeal preserving our appellate jurisdiction.

II

¶19 On appeal, Nielsen challenges his convictions and sentenc-

es on several grounds. First, he asserts a range of errors related to

venue issues—asserting plain error by the district court and/or

ineffective assistance of counsel in connection with the failure to

transfer the case to Davis County, the subsequent consideration of

a transfer to Box Elder County, and the ultimate determination to

try the case in Cache County with Box Elder jurors. Second, Niel-

sen appeals the denial of his motion for directed verdict on the

kidnapping charge, asserting that there was insufficient evidence

on an essential element of that crime. Third, Nielsen challenges

the sufficiency of the evidence to bind him over for trial on the

charge of aggravated murder. And finally, he appeals his convic-

tions for aggravated kidnapping, kidnapping, and desecration of

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STATE v. NIELSEN

Opinion of the Court

a body on merger grounds, asserting that these crimes should

have merged into the aggravated murder conviction.

¶20 We affirm Nielsen’s convictions and sentences for aggra-

vated murder and desecration of a body, but reverse and vacate

his convictions for kidnapping and aggravated kidnapping on

merger grounds.

A. Venue Issues

¶21 Nielsen asserts a series of challenges to the various venue

determinations made by the district court—in the failure to trans-

fer the case to Davis County while later determining to transfer

the case to Box Elder County, and also in holding the trial in

Cache County with Box Elder jurors. The first of these challenges

was unpreserved in the district court, and comes before us on

Nielsen’s assertion of ineffective assistance of counsel and plain

error. The latter challenge was preserved below. We affirm, reject-

ing the first set of venue arguments based on Nielsen’s failure to

establish prejudice and rejecting the last on the merits.

1. Failure to transfer to Davis County

¶22 When the district court granted Nielsen’s motion to trans-

fer venue to Davis County, the judge was required by statute to

transfer the case for trial to the transferee court. UTAH CODE § 78-

13-10 (2001). By rule, the transfer of ―all documents of record con-

cerning the case‖ was to be effected ―without delay.‖ UTAH R.

CRIM. P. 29(e). Nielsen asserts plain error in the district court’s

failure to do so, and claims that his trial counsel was ineffective in

not raising this issue below. He also asserts parallel challenges to

the subsequent determination to transfer the case to Box Elder

County, claiming both plain error and ineffective assistance in not

abiding by the initial decision to transfer to Davis County.

¶23 We reject both claims for lack of proof of prejudice. Niel-

sen’s only assertion of harm from the district court’s failure to

promptly transfer the case to Davis County is the notion that ―the

defendant was tried by a jury who was selected from a county

that had extensive prejudicial media coverage of the alleged

crimes and bused the short distance to the county where the al-

leged crimes took place.‖ That is insufficient. Where the alleged

harm is a tainted jury in a trial that has already taken place, the

question is not a mere likelihood of bias in the jury venire; it is ac-

tual bias on the part of the jurors who actually sat. Lafferty v. State,

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2007 UT 73, ¶ 42, 175 P.3d 530. Nielsen has made no such show-

ing. He has asserted that pretrial publicity might have tainted the

jury venire, while conceding that he has no evidence of actual bias

on the part of any actual juror.

¶24 Nielsen’s lack of proof of such prejudice foils his claims of

plain error and ineffective assistance of counsel. A claim of plain

error fails in the absence of proof that an error is harmful—in the

sense of having a ―reasonable likelihood‖ of affecting the out-

come. State v. Harris, 2012 UT 77, ¶ 24, 289 P.3d 591. The same

goes for a claim of ineffective assistance of counsel. Such a claim

requires a showing both ―that counsel’s performance was defi-

cient‖ and that ―the deficient performance prejudiced the de-

fense.‖ Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus,

even assuming that the court’s failure to transfer was error and

that counsel was deficient in failing to raise the issue, Nielsen’s

claims fail absent any salient showing of prejudice.

2. Holding trial in Cache County with Box Elder jurors

¶25 In December 2003, over two years after Nielsen was first

charged, the trial judge decided to hold the trial in Cache County

due to security and logistical concerns relating to the courthouse

in Box Elder County. To minimize the risk of any potential bias

resulting from pretrial publicity, however, the judge also deter-

mined to convene a jury from a venire consisting of residents of

neighboring Box Elder County.

¶26 Nielsen challenges the trial judge’s decision overruling his

objection to these determinations. He bears a heavy burden in so

doing. The law leaves decisions regarding venue transfer largely

in the discretion of the trial judge. See City of Grantsville v. Redev.

Agency, 2010 UT 38, ¶ 53, 233 P.3d 461. We overturn discretionary

judgments on such matters only in the rare case of an abuse of

discretion. Id.

¶27 We see no abuse of discretion here. Nielsen’s principal

claim of an abuse of discretion is his speculation that a jury as-

sembled in Cache County may have felt ―undue pressure . . . to

make a decision they may not otherwise make, if they were free

from all of that over in Box Elder County.‖ But as we noted in the

City of Grantsville case, trial judges act well within the broad

bounds of their discretion in denying venue transfer motions in

the face of ―allegations of bias . . . based on general apprehensions

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STATE v. NIELSEN

Opinion of the Court

based upon conjecture.‖ 2010 UT 38, ¶ 53 (internal quotation

marks omitted). That conclusion is clearer where the defense has

the opportunity to ―weed out potentially biased jurors‖ during

voir dire proceedings, id., and even more so where the court took

the additional step of busing jurors from a neighboring county.

¶28 We cannot conclude that the judge’s decisions were so arbi-

trary and capricious that ―no reasonable [person] would take the

view adopted by the trial court.‖ State v. Butterfield, 2001 UT 59,

¶ 28, 27 P.3d 1133 (alteration in original) (internal quotation marks

omitted). Granted, other alternatives for dealing with Nielsen’s

concerns regarding pretrial publicity were also available. The

judge could have held the trial in a different venue, such as Davis

County, for example. But the existence of other alternatives does

not make the one selected by the judge an irrational one. And we

accordingly affirm because we deem his chosen approach a rea-

sonable one among many.

B. Sufficiency of the Evidence on Kidnapping Convictions

¶29 Nielsen’s challenge to his kidnapping and aggravated kid-

napping convictions sets its sights on the denial of his motion for

directed verdict. He argues that there was insufficient evidence

for a reasonable jury to decide beyond a reasonable doubt that

Trisha went with Nielsen against her will, a necessary element of

kidnapping (and thus also an element of aggravated kidnapping).

UTAH CODE §§ 76-5-301, –302.

¶30 The applicable standard of review is again highly deferen-

tial. In assessing a claim of insufficiency of the evidence, ―we re-

view the evidence and all inferences which may reasonably be

drawn from it in the light most favorable to the verdict of the ju-

ry.‖ State v. Maestas, 2012 UT 46, ¶ 302, 299 P.3d 892 (internal quo-

tation marks omitted). We reverse ―only when the evidence, so

viewed, is sufficiently inconclusive or inherently improbable that

reasonable minds must have entertained a reasonable doubt that

the defendant committed the crime of which he or she was con-

victed.‖ Id. (internal quotation marks omitted).

¶31 In attempting to carry that heavy burden, Nielsen sweep-

ingly asserts that the State ―produced no direct evidence on the

victim’s unwillingness to go with the defendant, and the best cir-

cumstantial evidence that they could come up with was that the

victim might have been leery or scared of the defendant.‖ The

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State offers two lines of response. First it asks us to stop short of

reaching the merits in light of Nielsen’s purported failure to mar-

shal the evidence—specifically, his failure to present, ―in compre-

hensive and fastidious order, every scrap of competent evidence

introduced at trial which supports the very findings the appellant

resists.‖ Chen v. Stewart, 2004 UT 82, ¶ 77, 100 P.3d 1177 (internal

quotation marks omitted). Second, and alternatively, the State

challenges Nielsen’s position on the merits, identifying evidence

in the record that it sees as sufficient to sustain an inference that

Trisha was taken against her will.

¶32 We reject the State’s first point but agree with its second.

Before addressing the merits of Nielsen’s challenge to the suffi-

ciency of the evidence, we first consider the State’s marshaling ar-

gument—acknowledging some dicta in our prior cases that ap-

pears to support it, but refining and clarifying the standard going

forward.

1. Marshaling

¶33 Our rules of appellate procedure prescribe standards for

the form, organization, and content of a brief on appeal. See UTAH

R. APP. P. 24. Some of the standards in rule 24 are sufficiently clear

and objective that the failure to follow them may result in the re-

jection of a noncompliant brief by our clerk’s office. A brief that

exceeds the rule’s limits on length, for example, would be rejected

by our clerk’s office, as would a brief that fails to include a table of

contents or statement of the standard of review. See id. 24(a)(2),

(5). Typically a party filing a noncompliant brief would be given

an opportunity to correct these sorts of deficiencies. But failure to

do so theoretically could result in our failure to reach the merits

on the basis of the party’s procedural default under rule 24.

¶34 Other standards in rule 24 are more subjective, and not

susceptible to rejection by the clerk’s office or to procedural de-

fault by the court. Such standards are often an outgrowth of a par-

ty’s burden of persuasion on appeal. Thus, rule 24 requires the

appellant’s brief to set forth ―the contentions and reasons of the

appellant with respect to the issues presented . . . with citations to

the authorities, statutes, and parts of the record relied on.‖ Id.

24(a)(9). Our clerk’s office makes no attempt to police this rule at

the outset. That assessment is left to the court. And we perform it

not as a matter of gauging procedural compliance with the rule,

but as a necessary component of our evaluation of the case on its

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STATE v. NIELSEN

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merits, as viewed through the lens of the applicable standard of

review. See State v. Thomas, 961 P.2d 299, 305 (Utah 1998) (―While

failure to cite to pertinent authority may not always render an is-

sue inadequately briefed, it does so when the overall analysis of

the issue is so lacking as to shift the burden of research and argu-

ment to the reviewing court.‖); Salt Lake Cnty. v. Butler, Crockett &

Walsh Dev. Corp., 2013 UT App 30, ¶ 37 n.5, 297 P.3d 38 (holding

that the appellant ―has not met its burden of persuasion on appeal

by adequately briefing a plausible claim‖).

¶35 Historically, our marshaling requirement was understood

to fall into the latter category. For many years, we conceived of

the responsibility to marshal the evidence supporting a chal-

lenged factual finding as a mere component of an appellant’s

broader burden of overcoming the weighty deference granted to

factual determinations in the trial court. Thus, when a party failed

to marshal and distinguish evidence supportive of a challenged

verdict or finding of fact, our response was not to decline to reach

the merits as a matter of default, but simply to affirm on the

ground that the appellant had failed to carry its heavy burden of

persuasion.

¶36 This version of the marshaling principle was announced in

our cases as early as 1961. See Charlton v. Hackett, 360 P.2d 176, 176

(Utah 1961). We followed this approach consistently for several

decades thereafter. See, e.g., Nyman v. Cedar City, 361 P.2d 1114,

1115 (Utah 1961); Egbert & Jaynes v. R.C. Tolman Constr. Co., 680

P.2d 746, 747 (Utah 1984). We coined the term ―marshal[ing]‖ in

1985, see Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985), but

still continued to view marshaling as part of the overall burden

necessary to meet the clear error standard of review on appeal.

See, e.g., IFG Leasing Co. v. Gordon, 776 P.2d 607, 616–17 (Utah

1989).

¶37 Over time our caselaw occasionally has migrated in the

other direction—toward the hard-and-fast default notion of a pro-

cedural rule. Instead of noting an appellant’s failure to marshal as

a step toward concluding that it had failed to establish clear error,

we sometimes have identified a marshaling deficiency as a

ground for an appellant’s procedural default—citing a lack of

marshaling as a basis for not reaching the merits. See, e.g., United

Park City Mines Co. v. Stichting Mayflower Mountain Fonds, 2006 UT

35, ¶¶ 38, 41, 140 P.3d 1200.

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¶38 Over a similar span of time, we also added some additional

teeth to the rule. Thus, while rule 24(a)(9) itself (adopted in 1999)

speaks only of ―marshal[ing] all record evidence that supports the

challenged finding,‖ our caselaw has sometimes extended this

principle to require an appellant to ―present, in comprehensive

and fastidious order, every scrap of competent evidence intro-

duced at trial which supports the very findings the appellant re-

sists,‖ and to do so in a manner in which he ―temporarily re-

move[s] [his] own prejudices and fully embrace[s] the adversary’s

position‖ by assuming the role of ―devil’s advocate.‖ Chen, 2004

UT 82, ¶¶ 77–78 (internal quotation marks omitted).

¶39 Our commitment to the hard-and-fast default notion of the

marshaling rule has been less than complete. Sometimes we have

openly overlooked a failure to marshal and proceeded to the mer-

its. See, e.g., State v. Green, 2005 UT 9, ¶¶ 12–13, 108 P.3d 710. In

many other cases, moreover, we have reverted to our earlier con-

ception of marshaling, and disposed of the case on its merits de-

spite an alleged failure to marshal ―every scrap‖ of contrary evi-

dence. And in all events we have declined to state a limiting prin-

ciple, leaving the question of whether to treat marshaling as a ba-

sis for a default or instead as a component of the burden of per-

suasion purely a matter of our discretion. See Martinez v. Media-

Paymaster Plus/Church of Jesus Christ of Latter-day Saints, 2007 UT

42, ¶¶ 19–20, 164 P.3d 384 (noting that parties risk forfeiting their

challenges to factual questions when they fail to marshal but sus-

taining the court of appeals’ choice to resolve the case on its mer-

its because ―[t]he reviewing court . . . retains discretion to consider

independently the whole record and determine if the decision be-

low has adequate factual support‖).

¶40 The time has come to reconcile and regularize our cases in

this field. In so doing, we recognize and reiterate the importance

of the requirement of marshaling. It is a boon to both judicial

economy and fairness to the parties. See Chen, 2004 UT 82, ¶ 79.

Thus, an appellant who seeks to prevail in challenging the suffi-

ciency of the evidence to support a factual finding or a verdict on

appeal should follow the dictates of rule 24(a)(9), as a party who

fails to identify and deal with supportive evidence will never per-

suade an appellate court to reverse under the deferential standard

of review that applies to such issues. That said, we now conclude

that the hard-and-fast default notion of marshaling is more prob-

lematic than helpful—particularly when compounded by the

heightened requirements of our caselaw (to present ―every scrap‖

of evidence and to play ―devil’s advocate‖) and our retention of

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STATE v. NIELSEN

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discretion to disregard a marshaling defect where we deem it ap-

propriate.

¶41 We therefore repudiate the default notion of marshaling

sometimes put forward in our cases and reaffirm the traditional

principle of marshaling as a natural extension of an appellant’s

burden of persuasion. Accordingly, from here on our analysis will

be focused on the ultimate question of whether the appellant has

established a basis for overcoming the healthy dose of deference

owed to factual findings and jury verdicts—and not on whether

there is a technical deficiency in marshaling meriting a default.

¶42 In so holding, we do not mean to minimize the significance

of our longstanding requirement of marshaling. Instead we aim

only to clarify it and put it in proper perspective. Thus, we reiter-

ate that a party challenging a factual finding or sufficiency of the

evidence to support a verdict will almost certainly fail to carry its

burden of persuasion on appeal if it fails to marshal. Our point is

only that that will be the question on appeal going forward. The

focus should be on the merits, not on some arguable deficiency in

the appellant’s duty of marshaling.

¶43 Too often, the appellee’s brief is focused on this latter

point, and not enough on the ultimate merits of the case. To en-

courage the latter and discourage the former, we also hereby re-

pudiate the requirements of playing ―devil’s advocate‖ and of

presenting ―every scrap of competent evidence‖ in a ―comprehen-

sive and fastidious order.‖ Supra ¶ 38. That formulation is no-

where required in the rule. And its principal impact on briefing

has been to incentivize appellees to conduct a fastidious review of

the record in the hope of identifying a scrap of evidence the appel-

lant may have overlooked. That is not the point of the marshaling

rule, and will no longer be an element of our consideration of it.

¶44 Under this standard as now clarified, we reject the State’s

request that we treat Nielsen’s failure to marshal every scrap of

evidence supporting the jury’s verdict as a stand-alone basis for

rejecting his challenge to his kidnapping conviction. We proceed

instead to the merits of Nielsen’s argument, while emphasizing

that our assessment of his claim on appeal is certainly affected

(and greatly undermined) by the overbroad assertions in his brief

regarding the absence of evidence in the record and by his general

failure to identify and deal with that evidence.

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2. Sufficiency of the evidence

¶45 Nielsen vastly undersold the record evidence supporting

his conviction of kidnapping. The evidence was largely circum-

stantial. But it was nonetheless sufficient.

¶46 When we consider an insufficiency of the evidence claim,

―we review the evidence and all inferences which may reasonably

be drawn from it in the light most favorable to the verdict of the

jury.‖ Maestas, 2012 UT 46, ¶ 302 (internal quotation marks omit-

ted). We may reverse a verdict ―only when the evidence, so

viewed, is sufficiently inconclusive or inherently improbable that

reasonable minds must have entertained a reasonable doubt that

the defendant committed the crime of which he or she was con-

victed.‖ Id. (internal quotation marks omitted).

¶47 Nielsen challenges the verdict on kidnapping with the

sweeping assertion that ―the state produced no direct evidence on

the victim’s unwillingness to go with the defendant, and the best

circumstantial evidence that they could come up with was that the

victim might have been leery or scared of the defendant.‖ That

assertion falls far short under the above-noted deferential stand-

ard of review. Direct evidence is not required. Sustainable ver-

dicts are entered every day on the sole basis of circumstantial evi-

dence. State v. John, 586 P.2d 410, 411–12 (Utah 1978) (noting that

circumstantial evidence ―is recognized as a valid method of ascer-

taining the truth‖).1 And where the jury returns a verdict that is

reasonably sustained by circumstantial evidence and the infer-

ences drawn from it, we must uphold the jury’s verdict.

1 See also United States v. Langford, 647 F.3d 1309, 1319 (11th Cir.

2011) (―[C]ircumstantial evidence may be used to establish an el-

ement of a crime, even if the jury could draw more than one rea-

sonable inference from the circumstantial evidence, and in judg-

ing sufficiency of the evidence, we apply the same standard

whether the evidence is direct or circumstantial.‖); State v. Mitch-

ell, 343 S.W.3d 381, 391 (Tenn. 2011) (―The standard of review is

the same whether the conviction is based upon direct or circum-

stantial evidence, or a combination of both.‖) (internal quotation

marks omitted); State v. Bonner, 955 A.2d 625, 635 (Conn. App. Ct.

2008) (―[I]t does not diminish the probative force of the evidence

that consists, in whole or in part, of evidence that is circumstantial

rather than direct.‖) (internal quotation marks omitted).

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STATE v. NIELSEN

Opinion of the Court

¶48 That is certainly the case here. The jury heard testimony

that Nielsen repeatedly followed Trisha home from school; that

Trisha consistently responded to this attention with fear, which

she expressed to her friends, church leader, mother, and sister;

that she repeatedly asked to be picked up from school rather than

walk home because she was afraid of Nielsen; that on the morning

of her disappearance, she was wearing clothing that she would

not have worn if she had intended to meet someone on her walk;

and that Trisha’s remains showed signs of blunt force injuries in-

flicted before her death.

¶49 All of this is relevant circumstantial evidence suggesting

that Trisha would not have willingly gone anywhere with Niel-

sen. And we must view that evidence ―and all reasonable infer-

ences drawn therefrom in a light most favorable to the verdict.‖

Maestas, 2012 UT 46, ¶ 177 (internal quotation marks omitted). We

accordingly affirm, as we cannot conclude in light of this evidence

that ―reasonable minds must have entertained a reasonable

doubt‖ about the essential elements of the kidnapping charge. Id.

(internal quotation marks omitted).

C. Bindover on the Aggravated Murder Charge

¶50 In challenging the bindover on the aggravated murder

charge, Nielsen asserts that there was no evidence of any aggra-

vating elements presented at the preliminary hearing—

specifically, that there was no evidence to suggest that Trisha was

taken unwillingly, in a manner supporting the kidnapping aggra-

vator. This claim overlaps substantially with the one addressed to

the sufficiency of the evidence to support the kidnapping convic-

tion, addressed above. Supra ¶¶ 45–49. But Nielsen’s focus here is

on the sufficiency of the circumstantial evidence presented at the

preliminary hearing, and on the decision to bind him over for tri-

al.

¶51 We affirm. The evidentiary standard on bindover is low.

All that is required is ―believable evidence of all the elements of

the crime charged.‖ State v. Clark, 2001 UT 9, ¶ 15, 20 P.3d 300 (in-

ternal quotation marks omitted). And the magistrate’s assessment

of that evidence is deferential, viewed in the light most favorable

to the prosecution and with all reasonable inferences given to the

prosecution. Id. ¶ 10.

¶52 The circumstantial evidence presented at the preliminary

hearing appears to be the same circumstantial evidence presented

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Opinion of the Court

to the jury. Thus, our rejection of Nielsen’s challenge to his kid-

napping conviction necessarily requires the rejection of his chal-

lenge to the magistrate’s bindover decision. That is because the

evidentiary standard at bindover is much lower than it is at trial.

If there was enough evidence to convict Nielsen beyond a reason-

able doubt, there was certainly enough evidence to sustain the

bindover decision. This is consistent with our general rule that

any alleged defect in a bindover decision is cured by a subsequent

guilty verdict on the same charge, foreclosing an appeal on the

bindover decision. Thomas v. State, 2002 UT 128, ¶ 7, 63 P.3d 672

(―[A]n error at the preliminary stage is cured if the defendant is

later convicted beyond a reasonable doubt.‖) (internal quotation

marks omitted); State v. Morgan, 2001 UT 87, ¶ 7 n.1, 34 P.3d 767

(―[C]onviction renders any defect [in a bindover order] moot.‖).

D. Merger

¶53 Nielsen’s last set of claims concern the doctrine of merger.

First, he claims that his kidnapping conviction merged with his

conviction on aggravated kidnapping, and that the former convic-

tion should accordingly be vacated. Second, he also contends that

his convictions on aggravated kidnapping, kidnapping, and on

two counts of desecration of a body merged into his aggravated

murder conviction, and should likewise be vacated.

¶54 The State confesses error as to the kidnapping conviction. It

acknowledges that kidnapping and aggravated kidnapping

merged, and thus that the former should have been vacated. On

that charge we accordingly reverse and remand to allow the con-

ceded error to be corrected.

¶55 That leaves the question whether desecration of a body and

aggravated kidnapping were lesser-included offenses that merged

with the aggravated murder conviction. This question was not

preserved below, so it comes to us on plain error review. To re-

verse on plain error grounds we would have to conclude that

there was an error, that the error was obvious, and that the error

was prejudicial. Harris, 2012 UT 77, ¶ 24. We reverse and vacate

the aggravated kidnapping conviction on plain error grounds, but

affirm the sentence of life without parole on the aggravated mur-

der conviction in light of Nielsen’s failure to articulate any con-

crete grounds for concluding that the merger error prejudiced his

sentence.

15

STATE v. NIELSEN

Opinion of the Court

¶56 Upon careful review of the record, it is apparent that only

the kidnapping convictions—and not the desecration counts—

were presented as aggravators at the guilt stage. Desecration of a

human body did not qualify as a statutory aggravator under the

law at the time of defendant’s crimes, Utah Code section 76-5-

202(1) (2000), and it was not presented to the jury as such. Evi-

dence of Nielsen’s prior assault conviction was introduced to the

jury after it had convicted Nielsen of aggravated murder.2 Thus,

the only statutory aggravators at issue when the jury was decid-

ing whether Nielsen was guilty of aggravated murder were the

kidnapping charges.

¶57 Because the desecration counts do not implicate the doc-

trine of merger, the only merger question presented is whether

Nielsen’s aggravated kidnapping charge merged with his aggra-

vated murder conviction. As Nielsen indicates, our cases sustain

the conclusion that these two crimes should properly have

merged. See State v. Shaffer, 725 P.2d 1301, 1312–14 (Utah 1986)

(aggravated robbery merges with aggravated murder where the

former is predicate offense offered as sole aggravator sustaining

2 Nielsen alludes generally to a concern regarding the propriety

of the sentencing jury’s consideration of his prior assault convic-

tion as an aggravator in the form of a conviction for a violent felo-

ny, noting that by the time of sentencing that felony had been ―re-

duced to a class A misdemeanor under Utah Code . . . 76-3-402.‖

But he stops short of asserting that point as a ground for question-

ing his sentence on aggravated murder. Instead he raises the point

only as a lead-in to his conclusion that the prior assault conviction

should not be assumed to have been ―used as the aggravating cir-

cumstance that was an essential element in proving aggravated

murder.‖ We agree with Nielsen on that point, which seems ap-

parent given that the prior violent felony was not even introduced

to the jury until after the guilt phase. Thus, we do not and need

not reach a legal question that has not been presented by Nielsen

and is not properly before us, which is whether a past crime’s sta-

tus as a ―convict[ion]‖ of a ―felony involving the use or threat of

violence to a person‖ under Utah Code section 76-5-202(1)(h)

(2000) is to be assessed as of the time of the original conviction or

should instead be reassessed in light of a subsequent reduction

under Utah Code section 76-3-402.

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Opinion of the Court

the latter conviction); State v. Ross, 2007 UT 89, ¶ 61, 174 P.3d 628

(holding that ―an underlying felony that constitutes the aggravat-

ing circumstance merges with the conviction for aggravated mur-

der‖). The principle established in Shaffer and Ross is precisely ap-

plicable here. Because the aggravated kidnapping conviction was

the sole aggravator presented to the jury at the guilt phase, the

aggravated kidnapping offense was ―established by proof of the

same or less than all the facts required to establish the commission

of the offense charged.‖ UTAH CODE § 76-1-402(3)(a). For that rea-

son Nielsen’s aggravated kidnapping conviction should have

merged with his aggravated murder conviction.

¶58 The failure to identify this problem was a clear error. Our

caselaw on the merger of predicate offenses with aggravated

crimes is clear and well-established. And given that the merger

problem is straightforward (not fact-intensive or complex) and

could not conceivably have been ignored on strategic grounds, we

deem it sufficient to sustain the conclusion that it should have

been obvious to the court and parties below. See State v. Gornick,

130 P.3d 780, 783 (Or. 2006) (identifying the following considera-

tions as suggesting that an error is ―plain‖: that the error is one of

law; that it is ―obvious, not reasonably in dispute‖; that it ―ap-

pears on the face of the record,‖ meaning that the reviewing court

does not need to ―go outside the record to identify the error or

choose between competing inferences,‖ such as a strategy of the

parties; and that ―the facts constituting the error are irrefutable‖)

(internal quotation marks omitted). The prejudice from such error

is also obvious: Nielsen’s conviction of aggravated kidnapping

stands separate from his conviction on aggravated murder, as

does his separate sentence of fifteen years to life.

¶59 Because the independent conviction and sentence are plain-

ly prejudicial to Nielsen, we reverse and vacate Nielsen’s convic-

tion and sentence on aggravated kidnapping, while leaving undis-

turbed his conviction and sentence on aggravated murder.3 We

3 Theoretically, an error in entering a separate conviction on a

predicate offense could also have an impact on the sentence for

the aggravated crime. But Nielsen has not alleged, much less es-

tablished, a basis for that kind of prejudice, or requested a remand

for resentencing on aggravated murder on such ground. Perhaps

that is understandable, as our cases generally consider an error

17

STATE v. NIELSEN

Opinion of the Court

also affirm Nielsen’s two convictions for desecration of a human

body.

——————

regarding a nonmerged predicate offense to be harmless as to the

sentence on the greater offense, see State v. Hill, 674 P.2d 96, 98

(Utah 1983) (holding that theft conviction merged with aggravat-

ed robbery but declining to remand for resentencing on aggravat-

ed robbery), and the lack of a conviction on the predicate offense

would not have foreclosed the sentencing jury from considering

the facts establishing that offense. UTAH CODE § 76-3-207(2)(a) (―In

capital sentencing proceedings, evidence may be presented on

. . . the nature and circumstances of the crime . . . .‖). In any event,

we need not and do not reach these issues here, as they are not

presented.

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