State v. Marquina

2018 UT App 219

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
RAYMOND JESUS MARQUINA,
Appellant.

Opinion
No. 20150854-CA
Filed November 23, 2018

Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 141914264

Teresa L. Welch, Attorney for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES KATE A. TOOMEY and DIANA HAGEN concurred.

POHLMAN, Judge:

¶1 Appellant Raymond Jesus Marquina was convicted for
aggravated robbery, a first degree felony, after he attempted to
rob Victim and shot him five times. Marquina now appeals that
conviction, contending that he is entitled to a new trial because
at least one juror may have slept through a portion of his trial.
Marquina also contends that his conviction should be vacated
because there was insufficient evidence to place him at the scene
of the crime. We affirm.
 State v. Marquina

BACKGROUND 1

The Crime

¶2 A few minutes after returning home from an evening out,
Victim and his wife (Wife) heard a ring of the doorbell and a
knock on the door. Victim opened the door and saw a man on
his porch with a blue and white-streaked mask covering his
face. 2 The man was about 5'5'' tall and of average build. He said
something that Victim could not understand and then
“immediately started pulling” the trigger of his gun. Victim was
shot five times in the neck and face.

¶3 Wife, who was upstairs during the attack, heard three gun
shots and rushed to the top of the stairs where she had a view of
the front door. She saw “an arm with a dark-colored covering”
and a gloved hand holding a gun. Still from her vantage point,
Wife saw Victim fall to the floor and gurgle “lots of blood” as he
tried to yell for her. Wife called the police and, after they arrived,
Victim was taken to the hospital.

¶4 Neighbors also heard the gunshots. One neighbor looked
through his window and saw two persons wearing black
hoodies running away. Another neighbor ran out of her house in
an attempt to see the shooter. She did not see anyone but, upon
approaching Victim’s house, stumbled on a black mask in
Victim’s driveway. Police later recovered the mask and sent it to

1. On an appeal from a jury trial, “we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346
(quotation simplified). “We present conflicting evidence only as
necessary to understand issues raised on appeal.” Id.

2. Victim acknowledged that he could not be sure of the color
because he was red-green color deficient.

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 State v. Marquina

the crime lab for DNA testing. That testing led the police to a
local drug dealer (Dealer).

The Three Accomplices

¶5 Shortly before the shooting, Dealer decided to rob
someone because he needed money to pay his rent. He had
heard from several of his customers that Victim kept a lot of cash
in his van and would be a good target. With help from his
girlfriend (Girlfriend), Dealer made a plan to rob Victim.

¶6 Dealer then told his occasional chauffer (Driver) that he
“had something [he] needed him to do.” Driver was a drug
addict who received free drugs from Dealer. He went along with
Dealer and Girlfriend on the night of the robbery because Dealer,
who “can’t see well at night,” needed someone to drive.

¶7 After a police investigation, Dealer, Girlfriend, and Driver
admitted their involvement in the aggravated robbery of Victim.
And all three placed Marquina at the scene of the crime.

¶8 Marquina, who was a member of the same gang as
Dealer, had joined Dealer and Girlfriend at Dealer’s apartment
on the day of the robbery. While at the apartment, Dealer asked
Marquina “if he wanted to go do some dirt with [him] real
quick,” and Marquina said he did. 3

¶9 Dealer, Girlfriend, Driver, and Marquina then got into
Dealer’s car. 4 Dealer drove and placed a gun between the

3. “Dirt,” as explained by Dealer, means a robbery.

4. The witnesses disagreed at trial about exactly when Marquina
got in Dealer’s car. Girlfriend testified that Marquina joined
them as soon as they left Dealer’s apartment, but Dealer and
Driver testified that Marquina followed them in his own truck to
(continued…)

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 State v. Marquina

driver’s seat and the emergency brake. Because they did not
know where Victim lived, Girlfriend tried searching the internet
to find his address. Her search initially led them to the wrong
neighborhood, but they eventually found Victim’s house with
Victim’s van parked outside. They drove around the
neighborhood “for what seemed like forever” until Girlfriend
asked Dealer, “Are you going to do this or not?”

¶10 Dealer and Marquina eventually got out of the car, while
Driver took the driver’s seat and circled the car around the
block. Both Dealer and Marquina wore black hoodies, and
Dealer brought two masks—one black and one blue with white
streaks. Marquina put on the blue and white-streaked mask, but
Dealer was unable to get his black mask on and threw it back
toward his car. On the way to Victim’s front door, Dealer got
nervous and sent Marquina to the door alone. Marquina rang the
doorbell and knocked. When Victim answered, Marquina shot
him.

¶11 Marquina and Dealer then ran up Victim’s street until
they spotted Dealer’s car. They yelled for Driver to stop and got
in the backseat. Driver then drove straight back to Dealer’s
apartment. Once there, Marquina went his own way. Girlfriend
phoned Marquina repeatedly that night to “see if he was okay,”
but Marquina never answered. 5

(…continued)
a parking lot a few blocks away from Victim’s house, parked his
truck, and then got in Dealer’s car.

5. Marquina’s cell phone records show a number of calls and text
messages from Girlfriend both before and after the shooting. But
during the time of the robbery—from about 9:18 p.m. to 11:10
p.m.—there was no phone activity between Girlfriend and
Marquina.

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 State v. Marquina

¶12 A few weeks later, after the police had questioned Dealer,
Girlfriend, and Driver, each of whom implicated Marquina in
the shooting, Marquina was arrested. Marquina’s driver license
listed him as 5'6'' and 120 pounds. Shortly after Marquina’s
arrest, the police conducted a photo array identification with
Victim, who survived the shooting. Marquina’s photograph
was in the array, but Victim identified someone else as the
shooter.

The Trial

¶13 The State charged Marquina with one count of aggravated
robbery, which included a group enhancement. 6 Dealer,
Girlfriend, and Driver each testified at Marquina’s trial. Dealer
had pled guilty to the aggravated robbery and agreed to testify
even though it was “going to make [his life in prison] worse.”
He did not expect to receive “any benefit whatsoever” for
testifying. Girlfriend pled guilty to obstruction of justice, but in
exchange for her testimony against Marquina, she was placed on
probation in lieu of incarceration. Driver also struck a deal that,
in exchange for his testimony, he would be placed on probation
for robbery and would enter a rehabilitation program. Although
all three of their accounts varied in some particulars, each
witness placed Marquina at the scene of the crime. See supra
¶¶ 7–12.

¶14 The trial lasted three days. On the second and third days,
the prosecutors mentioned a sleepy juror. The first time, defense

6. Under Utah Code section 76-3-203.1, a criminal defendant is
subject to “an enhanced penalty” if the defendant acted “in
concert with two or more persons.” Utah Code Ann.
§ 76-3-203.1(2)(a), (5)(i) (LexisNexis 2017). Because Marquina
allegedly robbed Victim “in concert” with Dealer, Girlfriend,
and Driver, the State sought a group enhancement under this
section.

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counsel was in the middle of cross-examining one of
the detectives on the case when one prosecutor noticed a
juror “nodding off.” The prosecutor asked for a break so
the jurors could stretch, and the court agreed to take a fifteen-
minute recess.

¶15 The second time, after reading the jury instructions,
the court discussed with counsel its intention to make the last-
selected juror the alternate unless the parties agreed on
someone else. In response, a second prosecutor noted that
“we do have someone who has been sleeping through part or—
not all but part of the testimony” and reasoned that,
because closing arguments were likely to be lengthy, it
would “probably [be] safer to use the alternate . . . as an
actual juror.” The prosecutor further explained that the
juror “has been dozing off here now, but there have
been moments when he has been seemingly out.” Defense
counsel stated he “ha[d] not noticed any of the jurors sleeping,”
but that he “ha[d not] really been focusing on them.” Defense
counsel went on to refer to a judge who “is often mistaken
by many counsel to be sound asleep . . . when the truth of
the matter is he is just resting his eyes,” and that counsel will
realize that “not only has he been listening but he has been
processing everything in a very high way.” The court then
observed that “everyone tried to stay awake” and, with no
objection from counsel, left the jury as it was. The court also
invited counsel to alert the court if they “change[d] [their]
mind[s] after closing” and stated, “We will be looking at [the
jury] this time.”

¶16 Neither side raised further concerns after closing
argument. The alternate juror was excused and the jury retired
to deliberate. The jury unanimously found Marquina guilty of
aggravated robbery, and Marquina appeals.

20150854-CA 6 2018 UT App 219
 State v. Marquina

ISSUES AND STANDARDS OF REVIEW

¶17 Marquina raises two issues on appeal. First, he contends
that his Sixth Amendment right to an impartial jury was violated
because at least one juror reportedly slept during his trial.
Normally, “[c]onstitutional issues are questions of law that we
review for correctness,” State v. Norcutt, 2006 UT App 269, ¶ 7,
139 P.3d 1066, but unpreserved constitutional issues, as
Marquina concedes this is, are reviewed “under the ineffective
assistance of counsel and plain error doctrines,” see State v. Bond,
2015 UT 88, ¶ 14, 361 P.3d 104.

¶18 Second, Marquina contends that there was insufficient
evidence to support his conviction for aggravated robbery.
“When a defendant challenges a jury verdict for insufficiency
of the evidence, we review the evidence and all inferences
which may be reasonably drawn from it in the light most
favorable to the verdict.” State v. Noor, 2012 UT App 187, ¶ 4, 283
P.3d 543 (quotation simplified); see also State v. Ashcraft, 2015 UT
5, ¶ 18, 349 P.3d 664 (“On a sufficiency of the evidence claim
we give substantial deference to the jury.”). We will reverse a
jury verdict only when “the evidence is sufficiently inconclusive
or inherently improbable such that reasonable minds must
have entertained a reasonable doubt that the defendant
committed the crime for which he or she was convicted.”
State v. Holgate, 2000 UT 74, ¶ 18, 10 P.3d 346 (quotation
simplified).

ANALYSIS

I. Sixth Amendment Jury Right

¶19 The Sixth Amendment guarantees criminal defendants
“the right to . . . an impartial jury.” U.S. Const. amend. VI.
Marquina contends that he was denied this right when a juror

20150854-CA 7 2018 UT App 219
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reportedly fell asleep during the trial. In support, he argues that
the trial court had a duty to conduct voir dire 7 of the allegedly
sleepy juror to ensure the juror had not missed important
testimony. He also argues that his defense counsel was
constitutionally ineffective when he failed to insist that the court
conduct voir dire or, if necessary, replace the sleepy juror with
the alternate juror.

¶20 As noted above, Marquina concedes that this
constitutional issue has not been preserved for appeal. See State
v. Johnson, 2017 UT 76, ¶ 18, 416 P.3d 443 (“A failure to preserve
an issue in the trial court generally precludes a party from
arguing that issue in an appellate court, absent a valid
exception.”). Marquina nevertheless urges us to review it under
the plain error and ineffective assistance of counsel exceptions to
the preservation rule. See State v. Ison, 2006 UT 26, ¶ 39, 135 P.3d
864 (ineffective assistance exception); State v. Winfield, 2006 UT 4,
¶ 14, 128 P.3d 1171 (plain error exception). But before we reach
those arguments, we must address whether Marquina invited
the error he now complains of by allegedly resisting the
replacement of the sleepy juror with the alternate. See Winfield,
2006 UT 4, ¶ 14 (explaining that the invited error doctrine
forecloses even plain error review). Concluding that the invited
error doctrine does not apply in this case, we then turn to the
plain error argument regarding the trial court’s alleged failure to
conduct voir dire of the sleepy juror and then the ineffective
assistance argument regarding defense counsel’s alleged failure
to insist on replacing the juror with the alternate.

7. Voir dire is an “examination of a prospective juror by a judge
or lawyer to decide whether the prospect is qualified and
suitable to serve on a jury.” Voir Dire, Black’s Law Dictionary
(10th ed. 2014). Typically, voir dire refers to jury selection at the
outset of trial but, in this case, it encompasses examinations after
the jury has been selected.

20150854-CA 8 2018 UT App 219
 State v. Marquina

A. Invited Error

¶21 The State asserts that Marquina’s defense counsel invited
any error regarding the sleepy juror by resisting the prosecutor’s
suggestion that the sleepy juror be replaced with the alternate.
By rejecting the prosecutor’s suggestion, and even disputing
“the prosecutor’s observation that the juror had slept through
‘part of the testimony,’” the State maintains that defense counsel
“led the court to believe there would be no reason to question
the juror.” We disagree.

¶22 The “invited error doctrine arises from the principle that a
party cannot take advantage of an error committed at trial when
that party led the trial court into committing the error.” State v.
Winfield, 2006 UT 4, ¶ 15, 128 P.3d 1171 (quotation simplified).
Invited error occurs when counsel “independently ma[kes] a
clear affirmative representation of [an] erroneous principle” that
leads the court astray. State v. McNeil, 2016 UT 3, ¶ 18, 365 P.3d
699 (citing cases).

¶23 The Utah Supreme Court has previously rejected attempts
to broaden the scope of the invited error doctrine beyond this
affirmative-representation model. In McNeil, the State argued
that trial counsel for the defendant had invited error not through
“affirmative representation” but through “affirmative
acquiescence” by failing to make a proper objection to the
admission of hearsay evidence. Id. ¶¶ 18, 21 (quotation
simplified). The supreme court was unpersuaded by this
argument “because an error of this sort . . . is not invited but
merely unpreserved.” Id. ¶ 21. It accordingly “reject[ed] [the
State’s] broad definition of invited error” and reviewed the
defendant’s claim for plain error. Id. ¶¶ 21, 24; see also State v.
Harris, 2012 UT 77, ¶ 23, 289 P.3d 591.

¶24 Here, Marquina’s defense counsel, while perhaps
affirmatively acquiescing in the court’s decision to keep the
current composition of the jury without making further inquiry,

20150854-CA 9 2018 UT App 219
 State v. Marquina

did not make any affirmative representation to the court that the
panel was acceptable. See Winfield, 2006 UT 4, ¶ 18 (concluding
that counsel’s affirmative representation that he “absolutely
found the panel acceptable” during jury selection “f[ell] squarely
within the scope of [the] invited error doctrine” (quotation
simplified)). After the prosecutor alerted the court that
“someone . . . ha[d] been sleeping through part . . . of the
testimony,” defense counsel responded by saying that he “ha[d]
not noticed any of the jurors sleeping,” but that he “ha[d not]
really been focusing on them.” Counsel went on to explain the
difficulty in knowing whether someone really was sleeping and
pointed to the possibility that someone might just be “resting
[his or her] eyes” but still “processing everything in a very high
way.” The court then decided to keep the jury as it was but to
keep an eye on the jurors. It also informed counsel that if they
changed their minds, they could revisit the issue. From the
record it is clear that defense counsel did not affirmatively tell
the court to either forgo voir dire or to not replace the juror with
the alternate. And although the court told counsel they could
change their minds, defense counsel’s failure to thereafter
request an alternate juror does not make the error here “invited
but merely unpreserved.” See McNeil, 2016 UT 3, ¶ 21.

¶25 To be sure, the State characterizes defense counsel’s
response here as an affirmative representation and not merely
acquiescence. For example, it asserts that counsel “openly
resisted the prosecutor’s request” to substitute the alternate juror
for the sleepy juror and that he “clearly indicated that he did not
want the allegedly sleepy juror relegated to alternate status.” We
disagree with these characterizations. Although it is true that
defense counsel did not ask for the juror to be questioned, and
instead suggested an alternative to the prosecutor’s theory that
the juror was asleep, he did not affirmatively state that the court
should not conduct voir dire of the sleepy juror or replace him.
Thus, his statements do not “reveal[] that [he] independently
made a clear affirmative representation of the erroneous
principle.” See id. ¶ 18. In short, on these facts, we do not think

20150854-CA 10 2018 UT App 219
 State v. Marquina

Marquina’s defense counsel invited the error. We therefore
proceed to analyze the sleeping juror issue for plain error.

B. Plain Error

¶26 Marquina contends that the trial court committed plain
error, arguing that “the trial court failed to properly voir dire the
sleeping juror after receiving two reliable reports that a juror
was sleeping during a portion of the trial.” He also asserts that
this error was obvious because Utah case law establishes “the
need for a trial judge to assess the jurors’ ability to deliberate and
decide a case” and “[c]ase law across the nation” establishes that
“a trial judge [must] do a proper voir dire of a juror after
receiving a reliable report that a juror has been sleeping.”
Finally, he asserts that the error was prejudicial because “a fully
awake juror would . . . have recognized the problems” in the
State’s case and may have helped acquit him.

¶27 We invoke the plain error exception to the preservation
requirement “sparingly.” State v. Harris, 2012 UT 77, ¶ 24, 289
P.3d 591. “To show plain error, a party must establish three
things: (1) that an error exists, (2) that the error should have been
obvious to the trial court, and (3) that the error is harmful.” Id.
“If any one of these requirements is not met, plain error is not
established.” State v. Dean, 2004 UT 63, ¶ 15, 95 P.3d 276
(quotation simplified). Thus, if we conclude that the alleged
error was not obvious, we need not analyze whether it was
harmful. See, e.g., Harris, 2012 UT 77, ¶ 25.

¶28 “To establish that the error should have been obvious to
the trial court, [Marquina] must show that the law governing the
error was clear at the time the alleged error was made.” See
Dean, 2004 UT 63, ¶ 16. In other words, there must be “settled
appellate law to guide the trial court.” State v. Robinson, 2018 UT
App 103, ¶ 40, 427 P.3d 474 (quotation simplified).

¶29 In the handful of Utah appellate cases discussing a
sleeping juror’s effect on a trial, one principle predominates:

20150854-CA 11 2018 UT App 219
 State v. Marquina

discretion. Indeed, handling a sleeping juror is “so peculiarly
within the observation, province, and discretion of the trial court
that we should not interfere with the ruling, except upon a clear
abuse of discretion.” State v. Mellor, 272 P. 635, 639 (Utah 1928);
see also State v. Lesley, 672 P.2d 79, 82 (Utah 1983) (stating that the
“trial judge was in a position to gauge the degree, if any, of the
juror’s incapacity to serve in the trial” and affirming the denial
of a motion for a mistrial after a juror allegedly fell asleep); State
v. Pace, 527 P.2d 658, 659 (Utah 1974) (noting the “sound
discretion of the trial judge” and affirming the denial of a motion
for a mistrial after two jurors allegedly fell asleep). Generally
speaking, a trial court abuses its discretion when its decision is
“beyond the limits of reasonability.” Ross v. State, 2012 UT 93,
¶ 57, 293 P.3d 345 (quotation simplified).

¶30 Marquina reads Mellor, Lesley, and Pace as saying that a
trial court is under a duty “to inquire about the scope and
importance of the testimony that a sleepy juror misse[d].” Only
after this inquiry, according to Marquina, is a trial court entitled
to deference as in Mellor, Lesley, and Pace. For example,
Marquina asserts that in Mellor, our supreme court observed that
the trial court made a “finding” that the juror “at several
different times had gone to sleep, but only for two or three
minutes, just a short time.” See 272 P. at 639. The juror testified
that he had “heard and understood all that transpired in the
courtroom during the trial.” See id. In Marquina’s view, this
testimony allowed the court to find that the “juror could decide
the case because he heard the testimony offered at trial.”
Marquina asserts that the court in this case made no such finding
and therefore, under “well-established . . . Utah case law,” is not
entitled to the same deference as in Mellor.

¶31 The “settled appellate law” in Utah, however, does not
resemble the picture Marquina paints on appeal. Our supreme
court in Mellor indicated that the trial court found that the juror
slept for only a short time, but the supreme court did not
announce a rule or template trial courts must follow whenever

20150854-CA 12 2018 UT App 219
 State v. Marquina

they are confronted with reports of a sleepy juror. See id. Instead,
Mellor established that trial courts, when presented with reports
of sleeping jurors, are given wide discretion in how to respond.
Id. And the specific response depends on the facts of the case,
including how the issue was brought to the court’s attention. See
Lesley, 672 P.2d at 80–82 (discerning no abuse of discretion in
denying a motion for a mistrial when defense counsel “made no
complaint about the juror during the proceedings, but merely
moved for a mistrial after the judge recessed court”); Pace, 527
P.2d at 659 (affirming the denial of a motion for a mistrial
because the court personally “observed the whole jury” and saw
the sleeping juror wake up before it “had a chance to call it to
[the juror’s] attention” (quotation simplified)).

¶32 Here, on the second day of trial, the prosecutor alerted the
court that a juror was “nodding off” and requested a break to
allow the jury to stretch. The prosecutor’s report did not suggest
to the court that the juror had actually fallen asleep or had been
sleeping for an extended period, and the prosecutor’s request for
a break suggested that no more was needed to remedy the issue.
Based on the wide discretion given to trial courts in these
circumstances, it would not have been obvious to the trial court
that it was required to do more than grant the State’s request for
a short recess.

¶33 And on the third day of trial, the prosecutor suggested it
may be “safer” to use the alternate juror based on
her observation that a juror had been “sleeping through part . . .
of the testimony” and at times had been “seemingly out.”
Defense counsel, however, responded that he had not seen
anyone sleeping and expressed no concern, even suggesting that
what may look like sleep instead may be deep thought. Thus, it
would not have been obvious to the trial court that it was
required to do more than what it did. The trial court stated it
would keep a close eye on the jurors and also gave counsel on
both sides an opportunity to “change [their] mind[s]” and ask
for the juror to be replaced with the alternate, but neither raised

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the issue again. 8 On this record, we cannot conclude that the trial
court plainly erred in how it chose to handle the sleepy juror.

¶34 Marquina also looks outside Utah for authority that a trial
court is obliged to conduct voir dire whenever it receives a
“reliable report” of a sleeping juror. He points to cases from
Massachusetts, New York, Ohio, and South Carolina to support
his position. 9 But none of these cases are binding. And even
assuming that nonbinding precedent from other jurisdictions
could constitute “settled appellate law” for purposes of our
obviousness inquiry, see Robinson, 2018 UT App 103, ¶¶ 40–41
(quotation simplified), the cases cited by Marquina do not
represent a settled consensus. Utah law does not require a court
to conduct sua sponte a voir dire after a report of a sleepy juror,
and a number of federal circuits that have addressed the issue
likewise do not require voir dire. United States v. McKeighan, 685
F.3d 956, 975 (10th Cir. 2012) (concluding there was no error in
not investigating whether jurors were sleeping when defense
counsel did not ask the court to investigate or request the
substitution of alternate jurors); United States v. Freitag, 230 F.3d
1019, 1024 (7th Cir. 2000) (rejecting the argument that a “district
judge should have inquired further” when the judge “had not
noticed an extensive sleeping problem”); United States v. Holder,
652 F.2d 449, 451 (5th Cir. 1981) (similar). Therefore, any error in
not following the cases Marquina cites would not have been

8. As discussed below, infra ¶ 39, we presume defense counsel’s
actions might be considered sound trial strategy, and we observe
that a trial court “is not required to constantly survey or second-
guess a nonobjecting party’s best interests or trial strategy.” State
v. Bedell, 2014 UT 1, ¶ 26, 322 P.3d 697 (quotation simplified).

9. See Commonwealth v. McGhee, 25 N.E.3d 251, 255–58 (Mass.
2015); People v. Franqui, 999 N.Y.S.2d 40, 41 (App. Div. 2014);
State v. Majid, 914 N.E.2d 1113, 1114–17 (Ohio Ct. App. 2009);
State v. Hurd, 480 S.E.2d 94, 97 (S.C. Ct. App. 1996) (per curiam).

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 State v. Marquina

obvious to the trial court. Accordingly, Marquina has not
established plain error. See Pace, 527 P.2d at 659 (“Hence there
seems to have been nothing in the eyes of the beholder, nor in
the arms of Morpheus reflecting that the juror could have been
ensconced, so as to have stupefied the veniremen, or the sound
discretion of the trial judge.”).

C. Ineffective Assistance of Counsel

¶35 Alternatively, Marquina contends that his defense counsel
rendered constitutionally ineffective assistance of counsel. He
argues that his counsel’s performance “was deficient in failing to
object to the sleeping juror” and in failing “to agree to the
prosecutor’s request to replace the sleeping juror with the
alternate.” Further, he asserts that there “would be no strategic
choice by defense counsel to insist on keeping a sleeping juror in
this matter.”

¶36 The Sixth Amendment guarantees criminal defendants
the right to effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 684–86 (1984). To show ineffective
assistance, a defendant must show (1) that his counsel’s
performance was objectively deficient, and (2) “that the deficient
performance prejudiced the defense.” Id. at 687–88. “A failure to
prove either element defeats the claim.” State v. Horvath, 2018 UT
App 165, ¶ 30 (quotation simplified).

¶37 “With regard to the first prong, we ‘must indulge a
strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.’” State
v. Calvert, 2017 UT App 212, ¶ 22, 407 P.3d 1098 (quoting
Strickland, 466 U.S. at 689). The “presumption may be overcome
only if there is a lack of any conceivable tactical basis
for counsel’s actions.” State v. King, 2012 UT App 203, ¶ 14, 283
P.3d 980 (quotation simplified). “This presumption accounts
for the widely varying circumstances faced by defense
counsel and the range of legitimate decisions regarding how best

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 State v. Marquina

to represent a criminal defendant.” Met v. State, 2016 UT 51,
¶ 113, 388 P.3d 447 (quotation simplified). And counsel is
given an especially wide berth with regard to jury selection
and retention. See State v. Litherland, 2000 UT 76, ¶ 20, 12 P.3d 92.
This is because “jury selection is more art than science”:

There are a multitude of inherently subjective
factors typically constituting the sum and
substance of an attorney’s judgments about . . .
jurors. A . . . juror’s demeanor, interaction with
others in the courtroom, and personality in general
may all play an important role in providing clues
as to that juror’s likely predilections toward the
case at hand.

Id. ¶ 21. 10

¶38 Counsel’s choices about the jury “may even
appear counterintuitive, particularly when viewed from
the perspective of a bare transcript on appeal.” Id. ¶ 22.
For example, counsel may reasonably think that a potentially
biased juror may “overcompensate” and “assign[] more
weight or credibility to testimony that tends to oppose the
juror’s own potential bias.” Id. At bottom, an attorney’s decisions
regarding the jury “legitimately may be based on little more than
personal preference.” Id. ¶ 23.

10. Litherland discussed jury selection at the outset of trial.
Although here we address the potential substitution of a juror
near the end of trial, we agree with the State that Litherland’s
rationale applies. Indeed, by the end of trial, counsel will have
had even more time to observe jurors and determine their “likely
predilections toward the case.” See State v. Litherland, 2000 UT 76,
¶ 21, 12 P.3d 92.

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 State v. Marquina

¶39 Here, we must presume Marquina’s defense counsel’s
conduct fell “within the wide range of reasonable professional
assistance.” Calvert, 2017 UT App 212, ¶ 22 (quotation
simplified). Jury selection and retention are “more art than
science,” Litherland, 2000 UT 76, ¶ 21, and Marquina’s counsel
was able to observe the jurors, including the alternate, over the
course of three days. Everything from the jurors’ demeanors to
their reactions to testimony may have played a role in counsel’s
decision not to insist on replacing the sleepy juror. He may have
simply preferred the jury he had. Even if this choice seems
“counterintuitive,” counsel may have reasonably thought that a
sleepy juror would “overcompensate” and would be reluctant to
convict. See id. ¶ 22 (quotation simplified). Moreover, counsel’s
choices are viewed objectively; “[t]he first prong of the Strickland
standard . . . requires that a defendant rebut the strong
presumption that under the circumstances, the challenged action
might be considered sound trial strategy.” Id. ¶ 19 (emphasis
added) (quotation simplified). Marquina argues that without
knowing who the sleepy juror was or insisting on an inquiry into
what was missed, his defense counsel “could not make a
reasonable tactical decision” to keep the juror. But even without
knowing who the sleepy juror was, defense counsel may have
preferred any of the actual jurors over the alternate juror.
Moreover, although the record is unclear as to which juror may
have been sleeping, the prosecutor might have communicated
the information off the record. Therefore, we will not presume
that counsel’s conduct here was unreasonable “viewed from the
perspective of a bare transcript on appeal.” See id. ¶ 22. Because
Marquina has not demonstrated his counsel was objectively
deficient, he has not established ineffective assistance of counsel.

II. Sufficiency of the Evidence

¶40 Marquina next contends that there is insufficient evidence
to convict him of aggravated robbery. He asserts that there is no
physical or DNA evidence placing him at the crime scene and
that “the only evidence that placed [him] at the crime scene was

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 State v. Marquina

the unreliable, inconsistent and biased testimonies of” Dealer,
Girlfriend, and Driver. Therefore, because there is insufficient
evidence to place Marquina at the crime scene, Marquina argues
that his conviction should be reversed.

¶41 We first address whether this argument was preserved
below. After concluding that it was not, we review the claim for
plain error.

A. Preservation

¶42 As with other claims, “a defendant must raise the
sufficiency of the evidence by proper motion or objection to
preserve the issue for appeal.” State v. Holgate, 2000 UT 74, ¶ 16,
10 P.3d 346. This is generally done through a motion for a
directed verdict. See State v. Mohamed, 2012 UT App 183, ¶ 2, 282
P.3d 1066 (per curiam). But to preserve an issue for appeal, “the
issue must be specifically raised such that the issue was
sufficiently raised to a level of consciousness before the trial
court.” Id. (emphasis added) (quotation simplified). Thus, the
basis for the motion for a directed verdict must be the same as
the basis for the insufficiency claim urged on appeal. See id.
(concluding an insufficiency argument was unpreserved because
the basis for the motion for a directed verdict at trial differed
from what was argued on appeal); see also State v. Noor, 2012 UT
App 187, ¶ 7, 283 P.3d 543 (same).

¶43 Here, Marquina contends that his insufficiency argument
was preserved through a motion for a directed verdict at trial.
But the basis for that motion was that there was insufficient
evidence of a robbery—not that Marquina was absent from the
scene of the crime. At trial, Marquina’s defense counsel argued
that there was “no evidence of a robbery” because “there [was]
no evidence that there was an attempt or an effort to steal
anything.” His counsel conceded, however, that the evidence
“d[id] show, perhaps, an aggravated assault or perhaps an
attempted murder.” Now on appeal, Marquina argues not that

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 State v. Marquina

there was insufficient evidence of a robbery but that there was
insufficient evidence to support the assertion that he was there.
This argument was not “specifically raised such that the issue
was sufficiently raised to a level of consciousness before the trial
court.” See Mohamed, 2012 UT App 183, ¶ 2 (quotation
simplified). Therefore, it was not preserved for appeal.

B. Plain Error

¶44 Marquina contends that the insufficiency of the evidence
placing him at the scene of the crime is “so obvious and
fundamental” that it can be reviewed for plain error. (Quotation
simplified.) Marquina’s arguments in support of this contention
generally relate either to a lack of physical evidence placing him
at the crime scene or to the “unreliable, inconsistent, and biased
testimonies” of Dealer, Girlfriend, and Driver.

¶45 To establish plain error in this context, “a defendant must
demonstrate first that the evidence was insufficient to support a
conviction of the crime charged and second that the insufficiency
was so obvious and fundamental that the trial court erred in
submitting the case to the jury.” State v. Holgate, 2000 UT 74,
¶ 17, 10 P.3d 346. On the first prong of that test, “we give
substantial deference to the jury.” State v. Ashcraft, 2015 UT 5,
¶ 18, 349 P.3d 664. “We do not sit as a second trier of fact: It is
the exclusive function of the jury to weigh the evidence and to
determine the credibility of the witnesses.” State v. Boyd, 2001 UT
30, ¶ 16, 25 P.3d 985 (emphasis omitted) (quotation simplified);
see also State v. Pendergrass, 803 P.2d 1261, 1267 (Utah Ct. App.
1990) (“We defer to the jury because a jury is in the best position
to give proper weight to the peripheral nature of any
contradictory testimony.” (quotation simplified)).

¶46 Importantly for this case, “[a] conviction may be had on
the uncorroborated testimony of an accomplice.” Utah Code
Ann. § 77-17-7(1) (LexisNexis 2017). And while the defense can
put on evidence to try to undermine that testimony, “the jury is

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 State v. Marquina

not obligated to believe that evidence,” State v. Smith, 706 P.2d
1052, 1056 (Utah 1985), or “compelled to accept the existence of
reasonable doubt posited by the defense’s finger-pointing,”
Ashcraft, 2015 UT 5, ¶ 29. “So long as there is some evidence,
including reasonable inferences, from which findings of all the
requisite elements of the crime can reasonably be made, our
inquiry stops.” Boyd, 2001 UT 30, ¶ 16 (quotation simplified).

¶47 Marquina’s challenge to the sufficiency of the evidence is
effectively resolved by Smith. In that case, a defendant was
convicted of aggravated robbery. Smith, 706 P.2d at 1054. The
only evidence linking him to the crime was the testimony of two
accomplices, each of whom had struck a deal with the
prosecutors for blanket immunity or dropped charges in
exchange for their truthful testimony. Id. at 1054–55. Although
the victim of the crime was unable to identify his assailants, the
accomplices testified to their involvement in the robbery and
that the defendant was the getaway driver. Id. at 1055. After
being convicted, the defendant argued that there was insufficient
evidence to support the jury’s verdict. Id. Our supreme court
noted that “[t]here [was] no question that conflicting evidence
was adduced at trial which would negate defendant’s
participation in the . . . robbery.” Id. at 1056. But the court stated
that “the jury [was] not obligated to believe that evidence” and
concluded that, based on the accomplice testimony alone, “the
evidence was not so lacking and insubstantial that a reasonable
person could not have determined beyond a reasonable doubt
that defendant committed [the] robbery.” Id. at 1056–57.

¶48 Similarly, the evidence here is “not so lacking and
insubstantial that a reasonable person could not have
determined” that Marquina committed the crime. See id.
Although Victim was unable to identify Marquina’s photo in the
photo array, he was able to roughly describe Marquina’s height
and weight (about 5'5'' tall and average build) and the blue and
white-streaked mask that Girlfriend testified Marquina wore.
And even without that evidence, the three accomplices—Dealer,

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 State v. Marquina

Girlfriend, and Driver—each admitted to their involvement in
the crime and placed Marquina at the crime scene. See Utah
Code Ann. § 77-17-7(1) (“A conviction may be had on the
uncorroborated testimony of an accomplice.”).

¶49 As in Smith, some of the accomplices here reached a deal
with prosecutors for their truthful testimony, though Dealer
testified that he did not expect to receive “any benefit
whatsoever” for testifying at Marquina’s trial and that it was
“going to make [his life in prison] worse.” The defense was free
to present evidence to show the witnesses’ unreliability or
biases, which it did. The defense was also able to point out
inconsistencies in the witnesses’ testimonies. But “the jury [was]
not obligated to believe that evidence.” Smith, 706 P.2d at 1056.
The witnesses’ accounts differed in some particulars, but as to
the core issue—Marquina’s involvement in the aggravated
robbery of Victim—the stories were consistent. At bottom, it was
for the jury to “weigh the evidence and to determine the
credibility of the witnesses.” Boyd, 2001 UT 30, ¶ 16 (quotation
simplified). On appeal, we will not second-guess the jury or “sit
as a second trier of fact.” Id. Thus, viewing the facts in the light
most favorable to the verdict, we cannot say the insufficiency of
the evidence here “was so obvious and fundamental that the
trial court erred in submitting the case to the jury.” See State v.
Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346.

CONCLUSION

¶50 We conclude that Marquina has not demonstrated that
the trial court plainly erred in not sua sponte conducting voir
dire or removing an allegedly sleepy juror. We likewise conclude
that Marquina has not demonstrated that his defense counsel
rendered constitutionally ineffective assistance by not requesting
that the juror be removed. Finally, we conclude that the evidence
was not so lacking that the trial court plainly erred in submitting
the case to the jury. Accordingly, we affirm.

20150854-CA 21 2018 UT App 219