State v. Pham

2016 UT App 105

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ANH TUAN PHAM,
Appellant.

Opinion
No. 20140438-CA
Filed May 19, 2016

Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 121903503

Michael J. Langford, Attorney for Appellant
Sean D. Reyes, Cherise M. Bacalski, and John J.
Nielsen, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which SENIOR JUDGE RUSSELL W. BENCH concurred. 1 JUDGE
J. FREDERIC VOROS JR. concurred, except as to Part II, in which he
concurred in the result, with opinion.

CHRISTIANSEN, Judge:

¶1 Defendant Anh Tuan Pham challenges his convictions. He
argues that the admission of preliminary hearing testimony
infringed upon his Confrontation Clause rights and that the
State failed to produce sufficient evidence at trial to support one
of the convictions. We affirm.

1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
 State v. Pham

BACKGROUND

¶2 Defendant and his friend went to a convenience store to
replenish their party supplies. The victim (Victim) and his
girlfriend went to the same convenience store to get water for
their baby. After they arrived, they saw Defendant “picking on”
or “bullying” two younger men outside the store. Victim
approached, and the younger men asked Victim for a ride.
Defendant turned to Victim and asked him several times if he
“wanted problems too.” Victim responded each time that he did
not. Nevertheless, the situation escalated. Defendant pulled out
his gun and shot Victim; the bullet entered Victim’s lower
abdomen and exited through his scrotum, before lodging
permanently in Victim’s left leg.

¶3 Two police officers were across the street from the
convenience store and, upon hearing the gunshot, ran to the
store, yelling “stop now” and “police.” Defendant and his friend
fled in a van, later ditching it and stealing an SUV whose owner
had left it running. Defendant was apprehended later that night
and was charged with discharge of a firearm causing serious
bodily injury, receiving or transferring a stolen vehicle,
obstructing justice, and failing to stop or respond to an officer’s
signal.

¶4 Victim was taken to a hospital, where he stayed for three
days. For two weeks, he could not walk without pain. Victim
later returned to the hospital for further treatment, believing that
the bullet had hit a nerve and caused problems in his foot.

¶5 Victim testified at Defendant’s preliminary hearing, and
Defendant cross-examined Victim without any limitation by the
trial court. However, Victim moved to Mexico before the trial in
this matter, and neither the United States Marshals Service nor
the Mexican authorities were able to locate him. The State
therefore filed a motion in limine seeking to admit Victim’s
preliminary hearing testimony. The trial court granted that
motion over Defendant’s objection.

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 State v. Pham

¶6 At Defendant’s jury trial, Victim’s girlfriend, Defendant’s
friend, and the responding police officers testified for the State.
Victim’s preliminary hearing testimony was also read to the jury.
Defendant testified in his own defense. The jury found
Defendant guilty of all four charges, and Defendant timely
appealed.

ISSUES AND STANDARDS OF REVIEW

¶7 Defendant contends that the trial court erred in allowing
Victim’s preliminary hearing testimony to be read at trial, because
doing so violated his constitutional right to confrontation. We
review a trial court’s decision to admit testimony that may
implicate the Confrontation Clause for correctness. State v. Poole,
2010 UT 25, ¶ 8, 232 P.3d 519.

¶8 Defendant also contends that the State did not produce
sufficient evidence of Victim’s injuries to support Defendant’s
conviction for discharge of a firearm causing serious bodily
injury. We will reverse a jury’s guilty verdict due to insufficiency
of the evidence only when the evidence, viewed in the light most
favorable to the verdict, is so inconclusive or inherently
improbable that reasonable minds must have entertained a
reasonable doubt that the defendant committed the crimes of
which he or she was convicted. See State v. Kennedy, 2015 UT
App 152, ¶ 19, 354 P.3d 775; State v. Labrum, 2014 UT App 5,
¶ 17, 318 P.3d 1151.

ANALYSIS

I. Confrontation Clause

¶9 Defendant first contends that the admission of Victim’s
preliminary hearing testimony violated his Confrontation Clause
rights. “The Sixth Amendment to the United States Constitution
states in relevant part, ‘In all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses

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against him . . . .’” State v. Marks, 2011 UT App 262, ¶ 13 n.6, 262
P.3d 13 (ellipses in original) (quoting U.S. Const. amend. VI).
“Where testimonial evidence is at issue . . . the Sixth Amendment
demands what the common law required: unavailability [of the
witness] and a prior opportunity for cross-examination.”
Crawford v. Washington, 541 U.S. 36, 68 (2004); see also State v.
Garrido, 2013 UT App 245, ¶ 20, 314 P.3d 1014. Cf. State v. Brooks,
638 P.2d 537, 541 (Utah 1981) (noting, in a pre-Crawford case, that
for purposes of a hearsay challenge, “cross-examination takes
place at preliminary hearing and at trial under the same motive
and interest” because defense counsel “acts in both situations in
the interest of and motivated by establishing the innocence of
[his or her] client”); but see infra ¶ 17 n.3.

¶10 Defendant does not contest that he was given an
opportunity to cross-examine Victim at the preliminary hearing,
but rather that “cross examination at a preliminary hearing is
limited in scope and opportunity and therefore inadequate.”
Furthermore, Defendant “admits that he was not expressly
limited in his cross-examination, but rather the nature of the
preliminary hearing necessarily constricts confrontation.” The
essence of Defendant’s argument is that preliminary hearings, as
they are conducted under Utah law, are limited so as to preclude
defendants from fully exercising their opportunity for cross-
examination as guaranteed by the Confrontation Clause.

¶11 Though Defendant “requests that Utah reconsider its
opinion” on this issue, he concedes that our appellate courts
have determined that the opportunity to cross-examine a witness
at a preliminary hearing can satisfy a defendant’s right to
confrontation at trial. Defendant cites to this court’s opinion in
State v. Garrido, 2013 UT App 245, 314 P.3d 1014, which addressed
the use of a witness’s preliminary hearing testimony when that
witness was unavailable at trial. There, the defendant’s trial
counsel chose not to cross-examine a witness at the preliminary
hearing, likely because her preliminary hearing testimony
contradicted her earlier statements to police and thus was
favorable to the defendant. Id. ¶ 5. When the witness largely

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failed to appear at trial, 2 her preliminary hearing testimony was
read to the jury. Id. ¶ 6. On appeal, the defendant argued that the
admission of the witness’s preliminary hearing testimony
violated his Sixth Amendment right to confrontation. Id. ¶ 9.
This court held that, under the facts of that case, “it was the
opportunity to cross-examine [the now-unavailable witness], not
the actual undertaking of cross-examination, that satisfied the
requirements of Crawford.” Id. ¶ 20.

¶12 We will overrule a decision previously made by this court
only when we are “clearly convinced that the rule was originally
erroneous or is no longer sound [due to] changing conditions
and that more good than harm will come by departing from
precedent.” State v. Tenorio, 2007 UT App 92, ¶ 9, 156 P.3d 854
(citation and internal quotation marks omitted). Defendant does
not explicitly indicate under which of these paths he seeks
abrogation of Garrido. In any event, neither Garrido nor Crawford
state a blanket rule that an opportunity to cross-examine a
witness at a preliminary hearing will always, as a matter of law,
satisfy a defendant’s right to confrontation. Rather, we
understand those cases to set forth the general proposition that it
is possible for the cross-examination opportunity at a preliminary
hearing to satisfy that right. It is in this light that we consider
Defendant’s claim that Utah preliminary hearings are structurally
limited such that defendants are denied an opportunity to cross-
examine witnesses in a manner that satisfies their Confrontation
Clause rights.

¶13 Defendant states that “Confrontation requires an
opportunity for full and unfettered cross-examination in order to
discover and display credibility, consistency, and fact.” He

2. “[J]ust as her testimony from the preliminary hearing was
about to be read aloud [to the jury] by a stand-in, [the witness]
appeared in the back of the courtroom, shouted that she refused
to testify, and fled from the courtroom.” State v. Garrido, 2013 UT
App 245, ¶ 6, 314 P.3d 1014.

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 State v. Pham

asserts that “Utah preliminary hearings provide an inadequate
opportunity for Confrontation” because Utah’s “preliminary
hearings do not allow Judge’s to make substantial credibility
determinations, are heard in favor of the prosecution, whom do
not have to eliminate alternative inferences, and do not allow a
defendant to deeply explore issues of credibility or fact.” Thus,
according to Defendant, “testimony elicited during [Utah
preliminary hearings] is not subject to adequate cross-
examination.”

¶14 Defendant refers us to a Colorado case, People v. Fry, 92
P.3d 970 (Colo. 2004), which was decided shortly after Crawford.
The Colorado Supreme Court held that a defendant’s right to
confrontation was violated when the court admitted a deceased
witness’s preliminary hearing testimony at trial. Fry, 92 P.3d at
973, 981. In doing so, the court expressed concern that, because
credibility is not an issue at a preliminary hearing, a defendant’s
cross-examination might not explore a witness’s credibility. Id. at
977–78. The court explained that “allow[ing] extensive cross-
examination by defense counsel so as to prevent any
Confrontation Clause violations at trial if a witness were to
become unavailable . . . would turn the preliminary hearing in
every case into a much longer and more burdensome process for
all parties involved.” Id. at 978. The Colorado Supreme Court
noted its belief that other states had elected to do exactly that
and, consequently, had preliminary hearings that amounted to
mini-trials in order to provide defendants a full cross-
examination opportunity. Id. at 977. The court concluded that
Colorado’s “preliminary hearing [procedure] does not provide
an adequate opportunity to cross-examine sufficient to satisfy
the Confrontation Clause requirements,” and it refused to
“expand the scope of [Colorado] preliminary hearings in order
to allow them to satisfy Confrontation Clause requirements.” Id.
at 978.

¶15 Defendant “insists that Utah’s preliminary hearing
standards are essentially the same as Colorado” but provides no
comparative analysis of Colorado and Utah standards. We are

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therefore unable to measure how closely Utah’s preliminary
hearing standards track those of Colorado.

¶16 However, Defendant does describe some facets of Utah’s
preliminary hearing process. For example, he notes that “‘the
bindover standard [of the preliminary hearing] is intended to
leave the principal fact finding to the jury.’” (Alteration in
original) (quoting State v. Virgin, 2006 UT 29, ¶ 21, 137 P.3d 787).
Defendant also explains that the “‘evidentiary threshold at [the
preliminary hearing] is relatively low’” and “‘a showing of
“probable cause” entails only the presentation of “evidence
sufficient to support a reasonable belief that the defendant
committed the charged crime.”’” (Alteration in original)
(quoting State v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444). And
Defendant reminds us that the magistrate’s role in assessing
credibility at a preliminary hearing is limited and that the
magistrate is to take reasonable inferences in the prosecution’s
favor.

¶17 These statements, while true, do not limit the ability of a
defendant to conduct a full cross-examination at a preliminary
hearing. Although “principal fact finding” and determinations of
credibility are left until trial, such considerations impose no
obvious structural limitation on the scope or depth of cross-
examination a defendant may conduct at a preliminary hearing.
We are therefore unable to conclude that cross-examinations
conducted within Utah’s preliminary hearing framework can
never satisfy a defendant’s Sixth Amendment right to
confrontation. See, e.g., State v. Brooks, 638 P.2d 537, 541–42 (Utah
1981) (holding that the defendants’ opportunities for cross-
examination during a preliminary hearing were constitutionally
adequate for Confrontation Clause purposes, despite defense
counsel being unaware of the witnesses’ prior statements to
police and thus being unable to cross-examine the witnesses
about those statements, because defense counsel “apparently

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 State v. Pham

advisedly and intentionally decided to refrain” from cross-
examining the witnesses about the challenged topics). 3

3. On the other hand, we are also not convinced that a
preliminary hearing always provides the opportunity for cross-
examination guaranteed by the Confrontation Clause. The State
filed a letter of supplemental authority pursuant to rule 24(j) of
the Utah Rules of Appellate Procedure, citing State v. Brooks, 638
P.2d 537, 541 (Utah 1981), for the proposition that “cross-
examination takes place at preliminary hearing and at trial
under the same motive and interest.” We note that counsel’s
possession of the same motive and interest in conducting cross-
examination does not necessarily mean counsel had the same
opportunity to cross-examine. See Garrido, 2013 UT App 245, ¶ 20
(“We conclude that it was the opportunity to cross-
examine . . . , not the actual undertaking of cross-examination,
that satisfied the requirements of Crawford.”). Indeed, the Brooks
court separately considered whether “certain omissions in cross-
examination at preliminary hearing precluded [the defendants]
from an adequate exercise of the right to confrontation.” Brooks,
638 P.2d at 541.
Moreover, thirteen years after Brooks was issued, the
nature of preliminary hearings in Utah was changed by the
passage of the Utah Victims’ Rights Amendment. As relevant
here, the Utah Constitution was amended to provide that
“[w]here the defendant is otherwise entitled to a preliminary
examination, the function of that examination is limited to
determining whether probable cause exists” and to provide that
“reliable hearsay evidence” is admissible at a preliminary
hearing. See Utah Const. art. I, § 12. In light of these changes, the
Utah Supreme Court overruled State v. Anderson, 612 P.2d 778
(Utah 1980), upon which the relevant portion of Brooks had
partially relied. See State v. Timmerman, 2009 UT 58, ¶¶ 14–16,
218 P.3d 590. It is therefore unclear whether Brooks’s blanket
statement that “cross-examination takes place at preliminary
hearing and at trial under the same motive and interest” is still
(continued…)

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 State v. Pham

¶18 We need not decide today whether the inverse is true. It is
true that some courts have considered changes in a defendant’s
motive to cross-examine and court-imposed limitations on cross-
examination as factors relevant to determining whether a
defendant had a full opportunity to cross-examine a witness
during a preliminary hearing. See, e.g., Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986) (holding that “[by] cutting off all
questioning about an event that the State conceded had taken
place and that a jury might reasonably have found furnished the
witness a motive for favoring the prosecution in his testimony,
the court’s ruling violated [the defendant’s] rights secured by the
Confrontation Clause”); State v. Henderson, 2006-NMCA-059,
¶ 19, 136 P.3d 1005 (concluding that a defendant’s right to
confrontation was not violated where he had the same motive to
cross-examine the witness at the preliminary hearing and
enjoyed “an unrestricted right to cross-examine” the witness);
State v. Stuart, 2005 WI 47, ¶ 38, 695 N.W.2d 259 (vacating a
defendant’s conviction where a court “did not allow [the
defendant] to cross-examine [a witness] at the preliminary
hearing about the effect the pending charges had on his decision
to cooperate”). In the case before us, however, Defendant does
not allege that his motivation to cross-examine Victim changed
between the preliminary hearing and trial. Nor does he claim
that the trial court limited his cross-examination in any way.
Under the circumstances of this case, we cannot conclude that
Defendant was prevented from exercising his Confrontation
Clause right to, in Defendant’s words, “unfettered cross-
examination in order to discover and display credibility,
consistency, and fact.” 4

(…continued)
true insofar as Confrontation Clause rights are concerned. See
Brooks, 638 P.2d at 541.

4. On appeal, Defendant does not identify any shortcomings in
the cross-examination actually conducted at his preliminary
(continued…)

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 State v. Pham

¶19 Defendant has not demonstrated that Utah’s preliminary
hearing procedures limit cross-examination of a witness in such
a way that a defendant’s Confrontation Clause rights are
necessarily violated if that witness’s testimony is read at trial
due to the witness’s unavailability. Defendant does not claim
that the specific circumstances of his preliminary hearing
resulted in such a limitation. Consequently, we hold that the
court did not err in allowing Victim’s preliminary hearing
testimony to be read to the jury at trial.

II. Serious Bodily Injury

¶20 Defendant next contends that the State did not provide
sufficient evidence for the jury to conclude that Victim suffered
serious bodily injury. Specifically, he argues that there was no
evidence that the gunshot created a substantial risk of death.

¶21 Defendant was convicted of the first degree felony of
unlawful discharge of a firearm causing serious bodily injury.
See Utah Code Ann. § 76-10-508.1 (LexisNexis 2012). The Utah
Criminal Code defines serious bodily injury as “bodily injury
that creates or causes serious permanent disfigurement,
protracted loss or impairment of the function of any bodily
member or organ, or creates a substantial risk of death.” Id. § 76-
1-601(11). We consider only the third criterion—substantial risk
of death. 5

(…continued)
hearing. Rather, Defendant simply urges us to hold, as a matter
of law, that Utah preliminary hearings never provide defendants
with sufficient opportunity to cross-examine witnesses so as to
satisfy the Confrontation Clause.

5. The State argues that the jury could also have found that the
evidence of Victim’s injuries satisfied the “protracted loss or
impairment of the function of any bodily member or organ”
(continued…)

20140438-CA 10 2016 UT App 105
 State v. Pham

¶22 “[I]t is within the province of the jury to consider the
means and manner by which the victim’s injuries were inflicted
along with the attendant circumstances in determining whether
a defendant caused serious bodily injury.” State v. Bloomfield,
2003 UT App 3, ¶ 18, 63 P.3d 110 (citation and internal quotation
marks omitted). In addressing an insufficiency-of-the-evidence
claim, we review the evidence and all reasonable inferences
drawn therefrom in the light most favorable to the jury’s verdict.
State v. Kennedy, 2015 UT App 152, ¶ 39, 354 P.3d 775.

¶23 Defendant admits that Victim’s preliminary hearing
testimony described his being shot in the leg, bleeding, feeling
dizzy, spending three days in a hospital, having trouble walking
for about two weeks, and experiencing considerable pain during
those two weeks. Defendant neglects to mention that Victim also
testified that the bullet struck and lodged permanently in his leg
only after first passing through Victim’s abdomen and scrotum.
See State v. Mitchell, 2013 UT App 289, ¶ 31, 318 P.3d 238 (noting
that marshaling the evidence is “prudent tactical advice”
because, generally, “[a]n appellant cannot demonstrate that the
evidence supporting a factual finding falls short without giving
a candid account of that evidence.”).

¶24 Defendant does not refer us to any case in which an
appellate court has determined that evidence of a gunshot
wound was insufficient to support a jury’s finding. Rather, he
cites a single case in which a defendant beat his victim into
unconsciousness, stomped on the victim’s head, and ripped out
the victim’s eyebrow ring. Bloomfield, 2003 UT App 3, ¶ 3. There,
this court held that the evidence presented to the jury was

(…continued)
prong, on the ground that two weeks was a protracted length of
time. See Utah Code Ann. § 76-1-601(11) (LexisNexis 2012).
Because we conclude that the evidence was sufficient to support
a jury finding of “substantial risk of death,” we need not address
that argument.

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 State v. Pham

sufficient to support the jury’s finding that the defendant had
caused serious bodily injury. Id. ¶ 18.

¶25 Defendant baldly asserts that his case “simply does not
present facts” like those in Bloomfield and that the jury’s finding
of serious bodily injury here therefore must have been
unreasonable. But he does not argue that Bloomfield marks the
boundary between bodily injury and serious bodily injury. Thus,
the fact that the evidence of a severe beating in that case was
sufficient to sustain the jury’s finding of serious bodily injury has
no bearing on Defendant’s claim that the evidence of a shooting
in his case was not sufficient for the jury to find that he caused
serious bodily injury.

¶26 In any event, Defendant fails to cite any authority
suggesting that gunshot wounds do not or cannot create a
substantial risk of death. On the contrary, a cursory search
reveals several cases in which gunshot wounds to the leg have
been fatal. See, e.g., Hawkins v. Lafler, No. 11-cv-11250, 2015 WL
2185970, at *1 (E.D. Mich. May 11, 2015) (after being shot in the
leg, the victim ran away to take refuge in a house, where he died
from blood loss); Ostling v. City of Bainbridge Island, 872 F. Supp.
2d 1117, 1121 (W.D. Wash. 2012) (a man was shot in the leg and
then bled to death); People v. Payton, No. 257402, 2006 WL
548917, at *1–2 (Mich. Ct. App. Mar. 7, 2006) (per curiam) (noting
that a defendant shot a victim in the leg, that “the natural
tendency of such behavior is to cause death or great bodily
harm,” and that the victim did in fact die). Even if the wound is
not directly fatal, a gunshot to any part of the body can cause
infections that lead to death. See, e.g., People v. Fedora, 65 N.E.2d
447, 455–56 (Ill. 1946) (two doctors’ opinions that a victim’s death
had been caused by peritonitis resulting from a gunshot wound
were “sufficient evidence” to support a jury finding that the
shooter was responsible for causing death); State v. Davis, 295
S.W. 96, 97–98 (Mo. 1927) (testimony from two doctors that a
victim’s death had been caused by peritonitis resulting from
being shot in the abdomen by the defendant approximately two
months before death was “amply sufficient to support the

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verdict” of manslaughter); see also, e.g., State v. Hamilton, 192
S.E.2d 24, 25 (N.C. Ct. App. 1972) (considering the admissibility
of a doctor’s opinion that a victim died from “pneumonia [that]
was secondary to the peritonitis which was secondary to the
gunshot wound.”); State v. Nix, No. C-030696, 2004 WL 2315035,
at paras. 3, 16 (Ohio Ct. App. Oct. 15, 2004) (victim died in
hospital, after being shot in the abdomen, from “acute ischemic
colitis with peritonitis” or “dying bowel due to inadequate
vascular supply due to injur[ed] vessels due to gunshot wound”
(internal quotation marks omitted)); Adams v. State, 202 S.W.2d
933, 934 (Tex. Crim. App. 1947) (noting that a decedent’s death
from peritonitis was traceable to a gunshot wound caused by the
defendant, who was therefore guilty of capital murder). Because
being shot can lead to death, it is not inherently unreasonable for
a jury to find that a particular shooting resulted in serious bodily
injury by creating a substantial risk of death.

¶27 We will vacate a defendant’s conviction after a jury trial
due to the insufficiency of the evidence only if we determine that
the evidence is so inconclusive or inherently improbable that
reasonable minds must have entertained a reasonable doubt as
to whether the defendant committed the crime of which he or
she was convicted. State v. Kennedy, 2015 UT App 152, ¶ 39, 354
P.3d 775. Defendant has not demonstrated that a reasonable jury,
after hearing evidence that Defendant fired a bullet that
penetrated Victim’s abdomen, scrotum, and leg, causing Victim
to be hospitalized for three days, must have entertained a
reasonable doubt as to whether Defendant created a substantial
risk of death.

CONCLUSION

¶28 The trial court did not err by admitting Victim’s
preliminary hearing testimony to be read to the jury after
determining that Victim was unavailable, because Defendant
had a full opportunity to cross-examine Victim at the
preliminary hearing. Defendant has failed to show that the

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evidence was insufficient to support a jury finding that Victim
suffered serious bodily injury.

¶29 Affirmed.

VOROS, Judge (concurring in part and concurring in the result
in part):

¶30 I concur in the majority opinion except as to Part II, in
which I concur in the result only.

¶31 I would reject Pham’s sufficiency challenge on marshaling
grounds. True, our marshaling rule no longer requires the
appellant to present “every scrap of competent evidence”
supporting the verdict. See State v. Nielsen, 2014 UT 10, ¶ 43, 326
P.3d 645. But an appellant still bears the burden of persuasion.
Id. ¶ 42. And to persuade a court that an injury was not so
serious as to satisfy the statutory definition of “serious bodily
injury” an appellant must at minimum accurately describe the
injury.

¶32 Here, Pham argues that Victim did not suffer serious
bodily injury without acknowledging all the bodily injury Victim
suffered. Pham states that Victim “testified that the bullet struck
his leg.” In fact, the record shows that the bullet produced three
wounds: it entered Victim’s body above his penis on the right
side, passed through his scrotum on his left side, and lodged in
his leg. The first two wounds are not mere “scraps” of evidence;
they are additional evidence that Victim’s injury qualified as
serious. Without acknowledging them, Pham cannot show that
the evidence of serious bodily injury fell short.

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