State v. Boyle

2019 UT App 28

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
COLE MONTANA BOYLE,
Appellant.

Opinion
No. 20161037-CA
Filed February 22, 2019

Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 161903658

Diana Pierson, Alexandra S. McCallum, and Robin K.
Ljungberg, Attorneys for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.

MORTENSEN, Judge:

¶1 A husband (Victim) and wife (Wife) were spending the
evening buying and using drugs near a homeless shelter in Salt
Lake City. Alone, Victim went looking for more drugs. When he
came upon Cole Montana Boyle beating a woman, Victim
intervened, and Boyle then turned on Victim, stabbing him four
times—once in the arm, once on top of the head, once through
the nose, and, most seriously, once in the neck, slashing the
carotid artery. During the ensuing investigation, Wife was
recorded on a police body camera stating that Boyle had been
beating up a girl. Boyle objected to the admission of the
recording on the grounds that Wife’s statement was hearsay. The
objection was overruled. A jury convicted Boyle of aggravated
 State v. Boyle

assault, and Boyle was sentenced to prison. Boyle appeals,
arguing that he was prejudiced by the admission of hearsay
evidence and that the trial court abused its discretion when
sentencing him to prison. We affirm.

BACKGROUND 1

Stabbing Incident

¶2 One evening in early January 2016, Victim and Wife drove
to a light rail station near a homeless shelter in downtown Salt
Lake City to buy and use drugs. Victim purchased some crack
concaine from a dealer, and he and Wife smoked it together in
their SUV. About thirty minutes later, Victim left the SUV to
search the area for a heroin dealer.

¶3 Victim testified that after exiting his SUV, he saw Boyle,
whom Victim did not know and had not seen before, “punching
a girl and knocking her to the ground.” Victim yelled out, “Stop,
you don’t do that to a girl.” He stated that Boyle hit the woman
in the face with his closed fist. When she fell to the ground,
Boyle “got on top of her and continued to hit her.” Victim
testified that he “picked [Boyle] up off her and pushed him
forward.” Boyle “turned around, looked at [Victim], and kind of
got in [Victim’s] face a little bit and then walked off.” As Victim
was helping the woman, he saw Boyle quickly walking toward
him and looking “[l]ike he wanted to fight.” Victim recalled
Boyle was holding “something shiny . . . . like a blade.” Boyle
started punching Victim in the face, and Victim threw punches
back and grabbed Boyle’s coat in an attempt to defend himself.

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

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 State v. Boyle

Boyle said, “Stop, stop, please stop, cops are coming.” As the
two separated, Boyle lunged at Victim and stabbed him. Boyle
then walked away. Victim was “really wobbly and wondering
why [he] was so out of sorts.” Then he noticed blood was
“spraying out of [his] neck.”

¶4 Wife testified that she heard Victim yell, “Hey, you don’t
treat women that way,” about three or four minutes after Victim
left the SUV. She looked up and saw Victim and Boyle pushing
each other. Wife noticed a “girl” and “a lot of other people”
nearby. Wife thought “everything was fine” when she saw Boyle
walking away from Victim. As she was putting on her shoes so
that she could go over “to see if everything was okay,” Wife
heard a “commotion” and looked up to see Victim and Boyle
fighting. Wife then went to check on Victim at the site of the
altercation.

¶5 Wife found Victim holding his neck and saying that Boyle
had stabbed him. She yelled, “Call 911,” but “everyone looked at
[her] like [she] was crazy,” so she went back to her SUV and
drove it over to pick up Victim. She took him to a police officer
stationed outside the homeless shelter and told the officer that
Victim had been stabbed.

¶6 The officer activated his body camera on contact with
Victim and Wife. He noticed Victim had “one of his hands up to
the left side of his neck[,] and [he] could see there was a lot of
blood.” The officer put a pressure dressing on the wound and
called for medical assistance. While waiting for the ambulance,
Victim and Wife gave police a description of the suspect.

¶7 About a half an hour later, police officers located Boyle,
who matched the description given by Victim and Wife. Boyle
had injuries to his face and dried blood on his hands. Later that
evening, Wife identified Boyle as the man who had attacked
Victim. While being interviewed at the police station, Boyle
denied having been in a fight or seeing a fight that evening.
However, DNA testing later revealed Victim’s blood on one of
Boyle’s socks.

20161037-CA 3 2019 UT App 28
 State v. Boyle

¶8 Victim sustained four knife wounds during the fight: one
to the top of his head, one through his nose, one in the right
bicep, and one in his neck. A surgeon determined that the neck
wound had damaged the carotid artery and required emergency
surgery. Subsequently, Victim suffered six strokes and spent five
to six weeks in the hospital recovering from his injuries. At the
time of trial, Victim continued to suffer from numbness,
lightheadedness, face drooping, and slurred speech.

¶9 Boyle was charged with attempted murder with a
dangerous weapon or, in the alternative, aggravated assault with
a deadly weapon.

Trial and Sentencing

¶10 At trial, in addition to presenting the testimony of Victim,
Wife, two officers, a detective, a DNA analyst, and the
emergency room physician, the State also played portions of the
body camera recording of an officer’s conversation with Wife
and Victim. Boyle objected to the admission of the recording,
arguing that (1) it contained hearsay statements from Wife and
(2) it was unduly prejudicial because it carried “a lot of
emotional weight.” Specifically, Boyle objected to the playing of
two recorded statements of Wife saying that Boyle “was beating
up a girl” before he and Victim fought. The trial court overruled
the objection, ruling that the recording (1) was being offered to
explain the officer’s actions and not for its truth and (2) was also
admissible as an excited utterance. Additionally, the court gave a
limiting instruction that provided, “Any statements made by
[Victim and Wife] in this video are not being offered by the State
for the truth of what they said but rather to show the jury why
the officers did what they did when informed about or of what
had happened.”

¶11 Boyle did not present any evidence for his defense.
Counsel argued, however, that Boyle was not guilty of
attempted murder because he lacked the intent to kill Victim.
Specifically, Boyle’s counsel stated in closing:

20161037-CA 4 2019 UT App 28
 State v. Boyle

There wasn’t any sufficient evidence to find a
specific intent to kill. However, there is plenty of
evidence of an intent to wound and injure and
that’s exactly what happened in this case. . . . [T]he
evidence of injury applies better to the
[aggravated] assault than to the attempted murder
and I am confident that once you have deliberated,
gone through these instructions, looked at the
evidence, that you will find that my client is guilty
of the alternative charge of aggravated assault and
not attempted murder in this particular case.

The jury convicted Boyle of aggravated assault and determined
that he used a dangerous weapon during the commission of that
assault.

¶12 At sentencing, Boyle argued that jail and probation were
appropriate in light of the sentencing guidelines, his remorse,
and his rehabilitative needs. The State noted that although the
criminal history matrix score suggested only probation for Boyle,
Adult Probation and Parole (AP&P) recommended that the trial
court depart from that guideline and impose a prison sentence.
AP&P noted that Boyle’s history of violent crimes beginning as a
juvenile, his overall criminal history, his ongoing substance
abuse issues, and his infliction of serious injury to Victim were of
“grave concern” and indicated that Boyle posed a “grave danger
to the safety of the community.” The State also played several
phone-call recordings from jail, over Boyle’s objection, to show
that Boyle was deceptive, lacking remorse, and disrespectful of
Victim’s plight.

¶13 The trial court sentenced Boyle to two-to-twenty years in
prison. “[T]aking into consideration the injuries in this case [and
Boyle’s] prior record of assaultive behavior,” the trial court
concluded that Boyle was a “danger to the community” and it
was too great a risk to put him “back out in the community.”
Boyle now appeals.

20161037-CA 5 2019 UT App 28
 State v. Boyle

ISSUES AND STANDARDS OF REVIEW

¶14 The first issue is whether the trial court erred in admitting
two of Wife’s statements, as recorded by the police body camera,
that Boyle was “beating up a girl” prior to the altercation
because the statements were inadmissible hearsay. “When
reviewing rulings on hearsay, we review legal questions
regarding admissibility for correctness, questions of fact for clear
error, and the final ruling on admissibility for abuse of
discretion.” State v. Garrido, 2013 UT App 245, ¶ 10, 314 P.3d
1014 (cleaned up). If the trial court erred in admitting Wife’s
recorded statements, Boyle will succeed on appeal only if he
shows that he suffered prejudice because there was a
“reasonable likelihood of a more favorable result” absent the
statements. See State v. McNeil, 2013 UT App 134, ¶ 41, 302 P.3d
844 (cleaned up), aff'd, 2016 UT 3, 365 P.3d 699.

¶15 The second issue is whether the trial court erred by
sentencing Boyle to prison instead of probation. “[W]e review a
trial court’s decision to deny probation under an abuse of
discretion standard and will overturn a sentencing decision only
if it is clear that the actions of the trial judge were so inherently
unfair as to constitute an abuse of discretion.” State v. Killpack,
2008 UT 49, ¶ 18, 191 P.3d 17 (cleaned up). “A court exceeds its
discretion if it acts with inherent unfairness in imposing a
sentence, imposes a clearly excessive sentence, or fails to
consider all legally relevant factors.” State v. Epling, 2011 UT
App 229, ¶ 8, 262 P.3d 440.

ANALYSIS

I. Even if the Trial Court Erred in Admitting the Recording,
Boyle Has Not Established Prejudice

¶16 For the purposes of this appeal, we assume, without
deciding, that Wife’s statements recorded on the body camera
were inadmissible hearsay. But even if the recording was
erroneously admitted, Boyle must still show prejudice to succeed

20161037-CA 6 2019 UT App 28
 State v. Boyle

on appeal. See State v. McNeil, 2013 UT App 134, ¶ 41, 302 P.3d
844, aff'd, 2016 UT 3, 365 P.3d 699. “Trial error requires reversal
only if a review of the record persuades the appellate court that
without the error there was a reasonable likelihood of a more
favorable result for the defendant. A reasonable likelihood of a
more favorable outcome exists when the appellate court’s
confidence in the verdict is undermined.” Id. (cleaned up). Boyle
“has not established prejudice under this standard,” see id.,
because (1) he asked the jury to return a guilty verdict and
(2) other evidence in the case was sufficient, standing alone, to
convict him.

A. Boyle’s Counsel Explicitly Asked the Jury to Return a
Guilty Verdict on the Aggravated Assault Count

¶17 Boyle would have been convicted even without the
recording because his counsel asked the jury to return a
guilty verdict on the aggravated assault charge. In his
opening statement, counsel told the jury that there are a
“number of facts . . . that are just simply beyond change, that
will not be contested in this case.” He continued to tell the jury
that there was “no question” and that it was “absolutely
accurate” that Boyle and Victim were “involved in a fight in
which [Victim] was stabbed.” And in his closing, counsel
explicitly stated, “I am confident that once you have deliberated .
. . [and] looked at the evidence, that you will find that my client
is guilty of the alternative charge of aggravated assault and not
attempted murder in this particular case.” Counsel further
conceded that although there was insufficient evidence of
Boyle’s “specific intent to kill,” there was “plenty of evidence of
an intent to wound and injure.” We agree with Boyle’s counsel
on this point.

¶18 In his reply brief, however, Boyle argues that trial counsel
was compelled to ask the jury to convict on the aggravated
assault charge, essentially attempting to make lemonade out of a
lemon—the lemon being the hearsay evidence admitted over his
objection. Boyle argues:

20161037-CA 7 2019 UT App 28
 State v. Boyle

Counsel made no concession that absent [Wife’s]
statement [recorded on the body camera], a guilty
verdict was warranted. Under these circumstances,
all that can be read into counsel’s statements is that
he was doing damage control in light of the trial
court’s ruling. . . . This Court should place little, if
any, weight on these statements in assessing
prejudice.

¶19 Boyle would have us believe that the only reason his
counsel asked the jury to return a guilty verdict on the
aggravated assault charge is that Wife’s recorded statements
were so damaging that his counsel was forced to do “damage
control.” We find this argument unconvincing for two reasons.
First, counsel had already acknowledged in his opening that
Boyle was involved in the fight resulting in the stabbing of
Victim. His statements at closing thus complete the arc of the
trial strategy set in place at the opening. Second, in promoting
the “damage control” argument, Boyle ignores the other
evidence, which we identify below, arrayed against him. Indeed,
as Boyle’s counsel himself stated, “[T]here is plenty of evidence”
of Boyle’s “intent to wound and injure.”

B. Any Error in Admitting the Putative Hearsay Evidence
was Harmless in Light of Other Evidence

¶20 Whether an error is harmful depends upon several
factors. “These include the importance of the witness’s testimony
in the prosecution’s case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, . . .
and, of course, the overall strength of the prosecution’s case.”
McNeil, 2013 UT App 134, ¶ 52 (cleaned up). In light of these
factors, any error in admitting the two recorded statements was
harmless in this case.

¶21 First, Wife’s two statements on the recording that Boyle
“was beating up a girl” were of little importance to the State’s

20161037-CA 8 2019 UT App 28
 State v. Boyle

case. The cause of the fight between Boyle and Victim is
irrelevant to establishing that the fight occurred and that Victim
was assaulted with a deadly weapon. Indeed, Boyle’s defense
counsel conceded at trial that the “reason for the fight is not
necessarily important” except insofar as it “shed[s] light on
whether there was a specific intent to kill somebody or simply
hurt somebody.”

¶22 Second, Wife’s recorded statements were also cumulative
and corroborative of other evidence admitted without objection.
Wife testified that she heard Victim say, “Hey, you don’t treat
women that way,” when she was sitting in the SUV. Victim
testified that he saw Boyle “punching a girl and knocking her to
the ground.” In the recording, Victim stated that Boyle had been
beating up a woman, and a police officer repeatedly stated in the
same recording that Victim had said Boyle had been beating up
a girl. With the exception of Wife’s two recorded statements, all
of this testimony was admitted without objection and its
admission is not assailed on appeal. Indeed, when asked if he
objected to the officer’s statements in the recording, Boyle’s
counsel explicitly stated, “I don’t think there’s anything
objectionable to what the officer said.” So even if Wife’s recorded
statements that Boyle was attacking a woman had not been
played, the jury still heard several other recorded statements to
the same effect.

¶23 Third, there was other significant evidence against Boyle.
As noted above, Boyle’s counsel admitted in his opening
statement that Boyle had been in the fight in which Victim was
stabbed. A subsequent DNA test showed that blood on Boyle’s
sock matched Victim’s DNA. When Boyle was apprehended, he
had dried blood on his hands, a fresh wound on his mouth, and
blood inside his nose. And when police located Boyle, he
matched the description given by Victim and Wife. Thus, even
without Wife’s recorded statements, there is not a reasonable
likelihood of a different result at trial. The strength of the State’s
remaining evidence would have been more than sufficient to
convict Boyle of aggravated assault.

20161037-CA 9 2019 UT App 28
 State v. Boyle

¶24 For these reasons, we conclude that any error the court
committed in admitting Wife’s recorded statements was
harmless.

II. The Trial Court Did Not Abuse Its Discretion in Sentencing
Boyle to Prison Instead of Probation

¶25 “The sentencing decision of a trial court is reviewed for
abuse of discretion.” State v. Valdovinos, 2003 UT App 432, ¶ 14,
82 P.3d 1167. Specifically, the “decision whether to grant
probation is within the complete discretion of the trial court.”
State v. Rhodes, 818 P.2d 1048, 1049 (Utah Ct. App. 1991). “In
general, a trial court’s sentencing decision will not be overturned
unless it exceeds statutory or constitutional limits, the judge
failed to consider all the legally relevant factors, or the actions of
the judge were so inherently unfair as to constitute abuse of
discretion.” State v. Killpack, 2008 UT 49, ¶ 59, 191 P.3d 17
(cleaned up). “[A] defendant may demonstrate an abuse of
discretion if he or she can show that no reasonable person would
take the view adopted by the trial court.” State v. Goodluck, 2013
UT App 263, ¶ 2, 315 P.3d 1051 (per curiam) (cleaned up).

¶26 Boyle argues on appeal that the trial court abused its
discretion in sentencing him to prison. Specifically, Boyle asserts
that the court failed to consider factors that favored probation.
The record does not support his contention. During sentencing,
the State acknowledged that Boyle’s criminal history matrix
scored him in the probation category. But AP&P nevertheless
recommended prison, considering Boyle’s criminal history,
which included four previous assaults (three as a juvenile 2 and
one as an adult), his ongoing substance abuse issues, and the
seriousness of Victim’s injuries. Weighing these factors, AP&P

2. A court may consider a record of delinquency in sentencing.
See State v. McClendon, 611 P.2d 728, 729 (Utah 1980) (stating that
the inadmissibility of a record of delinquency “is not a bar to [its]
consideration in the sentencing phase of a criminal case”).

20161037-CA 10 2019 UT App 28
 State v. Boyle

concluded that Boyle posed a “grave danger to the safety of the
community.” The court also acknowledged that Boyle did not
score high on the matrix. But taking into consideration Boyle’s
history of “assaultive behavior” and the seriousness of Victim’s
injuries, the trial court agreed with AP&P’s recommendation
and concluded that Boyle posed too great a risk to be put “back
out in the community.”

¶27 Boyle also argues that the trial court abused its discretion
by basing its sentencing decision on “unreliable and irrelevant
information” in the jail recordings. As a threshold matter, we
note that the trial court appears to have based its sentencing
decision primarily on Boyle’s history of criminal behavior and
the seriousness of Victim’s injuries. The record gives no
indication that the jail recordings played any material role in
sentencing. 3 Rather, the record shows that the court relied on
AP&P’s conclusion that Boyle posed a “grave danger to the
safety of the community” when it sentenced him. Furthermore,
Boyle does not challenge that he is speaking on the jail
recordings, nor does he assert that the recordings are incomplete
or inaccurate. Accordingly, Boyle’s argument that the recordings
are unreliable borders on frivolous. And with regard to

3. “To establish that a district court abused its discretion by
relying on irrelevant information, the defendant must show
(1) evidence of reliance, such as an affirmative representation in
the record that the judge actually relied on the specific
information in reaching her decision, and (2) that the
information she relied upon was irrelevant.” State v. Moa, 2012
UT 28, ¶ 35, 282 P.3d 985. Even if the jail recordings were
irrelevant, Boyle has not offered any evidence, apart from the
fact that the court was “exposed to approximately 12 minutes of
recordings . . . during the sentencing hearing,” that the trial court
relied on the information in the recording in reaching its
decision. And “an appellate court cannot presume there is
evidence of reliance from a silent record or mere introduction of
potentially irrelevant information.” Id.

20161037-CA 11 2019 UT App 28
 State v. Boyle

relevance, the jail recordings indicate that Boyle (1) read books
on how to be deceptive, (2) was using drugs while in custody, (3)
regarded Victim as just a “crack head,” (4) was a gang member,
and (5) intended to retaliate against a witness. The recordings
are relevant precisely because they directly challenge Boyle’s
assertion that he was “remorseful, oriented toward positive
change, and amenable to probation and treatment.” 4 Thus, the
jail recordings were both relevant and reliable, and the trial court
did not abuse its discretion in considering them during
sentencing.

¶28 Because the record supports the conclusion that Boyle
was a danger to the community, we determine that the trial

4. Evidence that is inadmissible during the guilt phase of a trial
may be admissible at sentencing. See State v. Howell, 707 P.2d 115,
117 (Utah 1985). “This includes the defendant’s criminal history,
conduct at trial, and other relevant behavior.” State v. Lingmann,
2014 UT App 45, ¶ 39, 320 P.3d 1063. Indeed,
[trial] courts have historically been afforded broad
discretion when it comes to sentencing. The U.S.
Supreme Court has stated . . . [that] both before
and since the American colonies became a nation,
courts in this country and in England practiced a
policy under which a sentencing judge could
exercise a wide discretion in the sources and types
of evidence used to assist him in determining the
kind and extent of punishment to be imposed
within limits fixed by law.
State v. Perea, 2013 UT 68, ¶ 113, 322 P.3d 624 (cleaned up). The
United States Supreme Court has further clarified that in
“determining what sentence to impose . . . . a judge may
appropriately conduct an inquiry broad in scope, largely
unlimited either as to the kind of information he may consider,
or the source from which it may come.” United States v. Tucker,
404 U.S. 443, 446 (1972).

20161037-CA 12 2019 UT App 28
 State v. Boyle

court acted well within its discretion and considered the relevant
factors when it imposed the prison sentence.

CONCLUSION

¶29 Because Boyle was not prejudiced by the admission of
Wife’s recorded statements, we conclude that any error the trial
court committed in that regard was harmless. We also conclude
that the court did not abuse its discretion in sentencing Boyle to
prison instead of probation.

¶30 Affirmed.

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