                 This opinion is subject to revision before final
                        publication in the Pacific Reporter

                                2017 UT 61


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                             STATE OF UTAH,
                               Respondent,
                                       v.
                       DESEAN MICHAEL GOINS,
                             Petitioner.

                             No. 20160485
                        Filed September 6, 2017

            On Certiorari to the Utah Court of Appeals

                      Third District, Salt Lake
                    The Honorable Ann Boyden
                          No. 131906358

                                 Attorneys:
    Sean D. Reyes, Att’y Gen., Kris C. Leonard, Asst. Solic. Gen.,
                   Salt Lake City, for respondent
           Herschel Bullen, Salt Lake City, for petitioner

     JUSTICE PEARCE authored the opinion of the Court in which
        CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
           JUSTICE DURHAM and JUSTICE HIMONAS joined.


   JUSTICE PEARCE, opinion of the Court:
                           INTRODUCTION
   ¶1 Petitioner DeSean Goins challenges the court of appeals’
decision upholding the district court’s admission at trial of the
preliminary hearing testimony of an unavailable witness.
Specifically, Goins argues that the court of appeals erroneously
concluded the unavailable witness’s testimony was properly
admitted under rule 804 of the Utah Rules of Evidence. Goins
contends that because article I, section 12 of the Utah Constitution
limits preliminary hearings to establishing probable cause, his
counsel did not have a similar motive to develop testimony at the
                           STATE v. GOINS
                        Opinion of the Court


preliminary hearing that she would have had at trial. We agree with
Goins and hold that the court of appeals erred when it affirmed the
admission of the witness’s preliminary hearing testimony. To reach
that conclusion, we disavow our holding in State v. Brooks that
counsel always has the same motive to develop testimony at a
preliminary hearing that she will have at trial.
   ¶2 Admission of preliminary hearing testimony constituted
error with respect to Goins’s misdemeanor conviction. But its
admission was harmless as to Goins’s felony conviction. We
therefore affirm his felony conviction, reverse his misdemeanor
conviction, and remand.
                          BACKGROUND 1
    ¶3 In July 2012, Goins was a man on a mission: to find Gabriel
Estrada and recover the cell phone Goins believed Estrada had
stolen from him. Goins found Estrada outside a Salt Lake City
homeless shelter. Goins brandished a knife and confronted Estrada.
Estrada denied that he had taken Goins’s phone and fled.
   ¶4 Goins resumed his search for his phone in Pioneer Park. He
found Jacob Omar, an Estrada associate, asleep on a blanket. Goins
and his girlfriend, Star, awakened Omar. Star asked Omar if he had
seen Estrada and, more specifically, if Omar had seen Estrada with a
phone. Both Star and Goins began accusing Estrada of stealing
Goins’s cell phone.
   ¶5 During this conversation, Goins began waving the knife at
Omar and telling Omar that he “better tell the truth because [Goins]
knows that it was [Estrada] that took the phone from [Goins’s]
apartment.” At some point, Goins stepped onto Omar’s blanket.
Omar testified, “I don’t allow anybody to step onto my blanket. So I
got up and I pushed him off my blankets.”
   ¶6 Goins “came back at” Omar, and the two men “started
punching each other.” Omar pinned Goins to the ground. Goins

_____________________________________________________________
   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
(citation omitted).




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latched onto Omar’s earlobe with his teeth, yanked his head back, bit
off Omar’s earlobe, and spat it on the ground. Both men got up and
Omar began chasing Goins around his blanket. At some point, Goins
picked up his knife, and when Omar and Goins were on opposite
sides of the blanket, Goins lunged and stabbed Omar under his left
arm. Police officers soon arrived and arrested Goins. Goins was
eventually charged with one count of mayhem, a second-degree
felony in violation of Utah Code section 76-5-105, and two counts of
aggravated assault, both third-degree felonies in violation of Utah
Code section 76-5-103. 2
   ¶7 Both Estrada and Omar testified at a preliminary hearing.
Goins’s counsel cross-examined Estrada without objection by the
State or apparent restriction by the judge.
   ¶8 Two months after the preliminary hearing, the parties
appeared for the first day of trial only to discover that they had no
jury pool and could not proceed that day. The parties and the trial
court agreed to continue the trial to the following day. The
prosecutor then reported that Estrada had not appeared for trial and
moved that he be declared unavailable and that his preliminary
hearing testimony be admitted and read to the jury.
   ¶9 The prosecutor explained that he had difficulty locating
both Estrada and Omar and that the prosecution “ha[d] gone to
some lengths to try to procure [Estrada’s] attendance” at trial. The
prosecution found Omar and Estrada for the pretrial hearing
through the Salt Lake City Bike Police, who “were able to find them
mostly based on Jacob Omar’s . . . missing earlobe.” Estrada and
Omar had brought their pastor, Russ, 3 to the preliminary hearing. At
the hearing, Estrada and Omar agreed to allow the prosecutor to “go
through Russ to contact them” with details regarding the trial.
   ¶10 In anticipation of trial, the prosecutor emailed Russ a
subpoena for Estrada and Omar, which detailed the trial date and

_____________________________________________________________
   2 Some of the statutes cited in this opinion, including Utah Code
section 76-5-103, have been amended since July 2013, when the
incidents at issue occurred. Because the amendments do not affect
our analysis, and for ease of reference, we cite the most recent
version of the statutes.
   3   Pastor Russ’s surname does not appear in the record before us.




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                         Opinion of the Court


called for their presence at trial. Russ confirmed that he gave a copy
of the subpoena to both Estrada and Omar. Sometime before trial,
Russ left his position for a new job, and Jason 4 became the new
community pastor.
    ¶11 Both Russ and Jason informed the prosecutor that “Estrada
ha[d] come into some trouble” and “was in jail at one point.” The
prosecutor told the district court that he had checked the jail about a
week before the October 23, 2013 trial. However, Estrada had been
released almost a month prior, on September 24.
   ¶12 Jason lost touch with Estrada before trial. Although the
prosecutor asked Jason to watch for Estrada, Jason did not see him in
the days leading up to trial.
   ¶13 Goins accepted the prosecutor’s proffer of his efforts to
serve Estrada and procure his appearance at trial. Goins argued that
the prosecutor’s efforts to serve Estrada were insufficient under rule
804 of the Utah Rules of Evidence, which allows for the admission of
former testimony when a witness is unavailable. Goins also argued
that permitting use of Estrada’s preliminary hearing testimony
would violate Goins’s constitutional right to confrontation because
the motive for cross-examination at the preliminary hearing differed
from the motivation to cross-examine at trial.
    ¶14 The district court found that Estrada was unavailable under
rule 804. Specifically, the court found that the State utilized a
“reasonable means of process” as its efforts succeeded in actually
informing Estrada of the trial dates. Estrada appeared at the
preliminary hearing and knew that the proceedings were moving
forward. Next, the court found that Goins enjoyed a meaningful
opportunity for cross-examination at the preliminary hearing where
his counsel actively examined Estrada without objection or
restriction and asked about the “exact incidents” that were at issue at
trial. The district court concluded that Estrada’s preliminary hearing
testimony could be used at trial without violating Goins’s
Confrontation Clause rights.
   ¶15 Estrada failed to appear again at trial the next day. Goins
unsuccessfully renewed his objection to admission of Estrada’s

_____________________________________________________________
   4   The record does not include Pastor Jason’s cognomen either.




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preliminary hearing testimony, and the jury heard an audio tape of
Estrada’s preliminary hearing testimony relating Goins’s encounter
with Estrada.
    ¶16 The prosecution presented separate evidence relating to
Goins’s altercation with Omar. The jury heard from three witnesses:
Omar, an eyewitness, and a responding police officer. The
prosecution also presented photos depicting Goins’s and Omar’s
injuries.
   ¶17 The jury acquitted Goins of the mayhem charge. It returned
a guilty verdict for the count of felony aggravated assault for the
stabbing of Omar. The jury convicted Goins of the lesser offense of
threatening with or using a dangerous weapon, a class A
misdemeanor, in the fight with Estrada.
    ¶18 Goins appealed to the court of appeals on two grounds.
First, Goins argued that Estrada was not “unavailable” because the
State made no good-faith effort to locate him and properly serve him
with a subpoena. Second, Goins asserted that he did not have the
requisite opportunity or similar motive to fully cross-examine
Estrada at the preliminary hearing.
   ¶19 The court of appeals held that the State made the necessary
reasonable efforts to locate Estrada and affirmed the finding of
unavailability. 5 State v. Goins, 2016 UT App 57, ¶ 15, 370 P.3d 942.
The court also held that the circumstances of a preliminary hearing
“closely approximat[e] those” of a typical trial. Id. ¶ 16 (alteration in
original) (citation omitted). The court of appeals held that the rule
required the opportunity for cross-examination, not the exercise of
_____________________________________________________________
   5 The court of appeals noted that “Judge James Z. Davis began his
work on this case as a member of the Utah Court of Appeals. He
retired from the court, but thereafter became a Senior Judge. He
completed his work on this case sitting by special assignment as
authorized by law,” but passed away before the decision issued.
State v. Goins, 2016 UT App 57, n.1, 370 P.3d 942. The court of
appeals opined that Judge Davis was “an esteemed colleague and a
good friend” and that his “wit, wisdom, and dedication will be
sorely missed.” Id. We wholeheartedly agree. Jim was a great judge
and an even better person. His influence on the court of appeals, and
the court system generally—he served three terms on the Judicial
Council—will be remembered very fondly.




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                         Opinion of the Court


that opportunity, and that a preliminary hearing provides “an
effective opportunity for confrontation.” Id. ¶¶ 16–17 (citation
omitted). The court of appeals accordingly held that Goins enjoyed
an adequate opportunity for cross-examination at the preliminary
hearing. Id. ¶ 18.
    ¶20 The court of appeals sympathized with Goins’s claim that
the limited purpose of the preliminary hearing—determination of
probable cause—meant that trial counsel had a different motive in
conducting cross-examination at a preliminary hearing than she
would have at trial. Id. ¶ 19. However, the court found the argument
foreclosed by our decision in State v. Brooks, 638 P.2d 537 (Utah 1981).
Goins, 2016 UT App 57, ¶ 19. The court of appeals ultimately
affirmed the district court’s admission of Estrada’s preliminary
hearing testimony. Id. ¶ 20.
   ¶21 Goins filed a petition for rehearing under rule 35 of the
Utah Rules of Appellate Procedure in which he raised new claims of
ineffective assistance of trial and appellate counsel. The court of
appeals requested additional briefing from the parties regarding the
propriety of raising new issues in a petition for rehearing. The court
then denied the petition without comment.
                ISSUES AND STANDARD OF REVIEW
   ¶22 On certiorari, Goins argues that the court of appeals erred
when it affirmed the admission at trial of Estrada’s preliminary
hearing testimony. This court reviews the court of appeals’ decision
on certiorari for correctness. State v. Levin, 2006 UT 50, ¶ 15, 144 P.3d
1096.
    ¶23 Next, Goins argues that the court of appeals erred when it
failed to address his ineffective assistance of counsel claims raised
for the first time in his rule 35 petition for rehearing. We review the
court of appeals’ decision not to address a question raised for the
first time in a petition for rehearing for correctness. See Arbogast
Family Tr. v. River Crossings, LLC, 2010 UT 40, ¶ 10, 238 P.3d 1035
(“The interpretation of a rule of procedure is a question of law that
we review for correctness.” (citation omitted)).




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                               ANALYSIS
         I. Goins’s Counsel Did Not Have a Similar Motive to
            Develop Estrada’s Testimony at the Preliminary
             Hearing That She Would Have Had at Trial
    ¶24 Goins argues that the court of appeals erred when it
affirmed that Estrada’s preliminary hearing testimony could be
admitted at trial. He asserts that the introduction of preliminary
hearing testimony violates both the Confrontation Clause of the
United States Constitution and rule 804 of the Utah Rules of
Evidence. Goins intertwines his constitutional and rule-based
arguments. We see value in detangling the arguments and analyzing
rule 804 separately from the Confrontation Clause. We have
reasoned that judicial restraint counsels against reaching
constitutional questions if we can resolve the case on non-
constitutional grounds. State v. Thurman, 846 P.2d 1256, 1262 (Utah
1993). Focusing first on Rule of Evidence 804 permits us to leave the
constitutional question for another day.
    ¶25 Hearsay is inadmissible at trial unless it falls within an
exception. 6 UTAH R. EVID. 802. Utah Rule of Evidence 804 provides
an exception: preliminary hearing testimony may be admitted if
(1) the potential witness is unavailable and (2) the testimony is given
at a proceeding where the party against whom the testimony is now
offered had “an opportunity and similar motive to develop it.” Id.
804(b)(1).
    ¶26 Goins challenges the court of appeals’ holdings that
(1) Estrada qualified as an unavailable witness and (2) Goins had an
opportunity and similar motive to develop the testimony at the
pretrial hearing under rule 804.
               A. We Assume Without Deciding That Estrada
                    Was Unavailable to Testify at Trial
   ¶27 The rule 804 exception extends only to circumstances in
which the declarant is considered unavailable. “A declarant is
considered to be unavailable as a witness if the declarant . . . is

_____________________________________________________________
   6 A statement is hearsay if (1) the witness made the statement
outside of the current trial or hearing and (2) a party offers the
statement “to prove the truth of the matter asserted in the
statement.” UTAH R. EVID. 801(c).




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                         Opinion of the Court


absent from the trial or hearing and the statement’s proponent has
not been able, by process or other reasonable means, to procure the
declarant’s attendance.” UTAH R. EVID. 804(a)(5).
   ¶28 The court of appeals reasoned that “[b]ecause the
prosecution made reasonable efforts to locate [Estrada], though
perhaps not all efforts ‘humanly possible,’ . . . the prosecution acted
in good faith, and . . . the trial court did not abuse its discretion in
finding [Estrada] to be unavailable for purposes of rule 804.” State v.
Goins, 2016 UT App 57, ¶ 15, 370 P.3d 942. We assume without
deciding that Estrada was unavailable to testify at trial because we
decide this case on other grounds. 7

_____________________________________________________________
   7 Although we do not need to address the substance of Goins’s
argument, we note two lingering issues in our unavailability
jurisprudence. First, we have not been consistent in our articulation
of the test the district court should apply to gauge whether a witness
is unavailable for Confrontation Clause purposes. The court of
appeals referenced language we used in State v. Menzies, where we
said that it must be “practically impossible to produce the witness in
court.” See Goins, 2016 UT App 57, ¶ 9 (quoting State v. Menzies, 889
P.2d 393, 402 (Utah 1994)). In State v. Montoya, we cited that language
from Menzies but then concluded that “in general, a witness will not
be found unavailable until the proponent of the evidence
demonstrates that he has used all reasonable means at his disposal to
secure the attendance of the witness.” 2004 UT 5, ¶ 16, 84 P.3d 1183.
One could read Montoya as equating “practically impossible” with
“all reasonable means.” Those concepts are plainly different
however. We recognize, though, that the United States Supreme
Court is the ultimate authority on establishing a standard for
unavailability and has held that “a witness is not ‘unavailable’ for
purposes of the . . . confrontation requirement unless the
prosecutorial authorities have made a good-faith effort to obtain his
presence at trial.” Hardy v. Cross, 565 U.S. 65, 69 (2011) (alteration in
original) (citation omitted). Second, there may be a difference
between unavailability for Confrontation Clause purposes and
unavailability under rule 804(a)(5). Utah Rule of Evidence 804(a)(5)
requires that for a declarant to be considered unavailable, “the
statement’s proponent has not been able, by process or other
reasonable means, to procure the declarant’s attendance.” We have
                                                         (continued . . .)


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              B. Rule 804 Precludes the Admission of Preliminary
                 Hearing Testimony at Trial as a Matter of Law
   ¶29 Prior testimony of an unavailable witness may be admitted
only if it meets Utah Rule of Evidence 804(b). Under rule 804(b)(1),
former testimony of an unavailable witness is “not excluded by the
rule against hearsay” if it
          (A) was given as a witness at a trial, hearing, or
       lawful deposition, whether given during the current
       proceeding or a different one; and
          (B) is now offered against a party who had . . . an
       opportunity and similar motive to develop it by direct,
       cross-, or redirect examination.
UTAH R. EVID. 804(b)(1) (emphasis added). Thus, preliminary hearing
testimony is admissible against a defendant only if defense counsel
had both (1) an opportunity and (2) similar motive to develop the
testimony at the preliminary hearing.
    ¶30 Goins argues that the limited nature of preliminary
hearings results in a more limited opportunity for cross-examination
than would take place at trial and that therefore the motive to cross-
examine at a preliminary hearing differs from that at trial. The State
counters that Goins’s argument was raised and rejected in State v.
Brooks, 638 P.2d 537 (Utah 1981). The State has a point. The Brooks
court rejected a defendant’s assertions that a preliminary hearing is
“by its very nature . . . different in motive and interest than a trial.”
Id. at 541. Instead, it held that “cross-examination takes place at
preliminary hearing and at trial under the same motive and
interest.” Id. To reach that conclusion, the Brooks court opined that
“[d]efense counsel’s motive and interest are the same in either
setting; he acts in both situations in the interest of and motivated by
establishing the innocence of his client.” Id. We concluded that the
rules of evidence do “not preclude, as a matter of law, testimony




(continued . . .)
not had the opportunity to address the standard for unavailability
under rule 804(a)(5) or to opine on whether rule 804 propounds a
different standard than the test for Confrontation Clause purposes.




                                    9
                            STATE v. GOINS
                         Opinion of the Court


given in a preliminary hearing from being admitted at trial.” 8 Id. The
State correctly asserts that Brooks announced a per se rule under
which preliminary hearing testimony is admissible so long as the
requirements of unavailability and an opportunity to cross-examine
are satisfied.
    ¶31 However, subsequent changes to article I, section 12 of the
Utah Constitution undermine one of Brooks’s key premises—that
“[d]efense counsel’s motive and interest are the same in either
setting.” See id. In 1994—more than a decade after we decided
Brooks—Utah voters amended article I, section 12 to limit “the
function of [preliminary] examination . . . to determining whether
probable cause exists.” 9 UTAH CONST art. I, § 12.
    ¶32 Since 1994, preliminary hearings—at least those that
function as the amended constitution envisions—potentially limit
the scope of cross-examination such that the blanket statement we
issued in Brooks no longer rings true. As Goins’s trial counsel argued
to the trial court:
       the motive in developing testimony is different at a
       preliminary hearing than it is at trial. We frequently
       ask questions during preliminary hearings that we
       would not ask at trial because evidence . . . admissible
       at . . . a preliminary hearing [is not necessarily]
       admissible in a trial. The rules of evidence are different
       and . . . we don’t ask question[s] that we might ask at a
       trial because credibility determinations are not being

_____________________________________________________________
   8 Brooks discusses Utah Rule of Evidence 63(3), the predecessor of
rule 804.
   9  The changes to article I, section 12 accompanied the ratification
of article I, section 28 of the Utah Constitution as part of the Victims’
Rights Amendment to the Utah Constitution. Constitutional
Declaration of the Rights of Crime Victims, 1994 Utah Laws, 1610,
1610–11. The stated purpose of article I, section 28 is “[t]o preserve
and protect victims’ rights to justice and due process.” UTAH CONST.
art. I, § 28. To protect victims from lengthy preliminary hearings, the
joint resolution “amend[ed] the rights of accused persons to limit the
function and procedures of preliminary examinations.” 1994 Utah
Laws 1610–11.




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                         Opinion of the Court

        made [at] a preliminary hearing. The court making the
        probable cause determination is not assessing the
        credibility of a witness, therefore we do not ask
        questions to get that information out.
    ¶33 This statement perhaps slightly exaggerates the
differences—magistrates can, in some limited ways, assess
credibility at a preliminary hearing. See, e.g., State v. Virgin, 2006 UT
29, ¶ 25, 137 P.3d 787. And there may be certain circumstances where
the nature of a witness and her testimony is such that defense
counsel will ask all the questions at a preliminary hearing that she
would ask at trial. But by and large, article I, section 12 places most
credibility determinations outside the reach of a magistrate at a
preliminary hearing, so Goins’s trial counsel’s basic point is well
taken.
    ¶34 A defense attorney who assumes that the magistrate will
conduct a preliminary hearing that comports with article I, section 12
does not have an incentive to prepare to thoroughly cross-examine
on credibility. An attorney who believes that the magistrate will not
permit questioning that goes beyond that necessary to establish
probable cause has no guarantee that she can present or develop
positive information concerning her client at the preliminary
hearing. Nor does counsel have a motive to develop affirmative
defenses at a preliminary hearing. In many, if not most, instances,
Brooks’s conclusion either no longer aligns with the reality of
practice, or places magistrates in the uncomfortable position of
choosing between conducting preliminary hearings in fidelity with
article I, section 12 and permitting the type of examinations that
Brooks presupposes.
   ¶35 Goins asks us to not only disavow our holding in Brooks,
but to replace it with another blanket rule—one that provides that
counsel never has the same motive to develop testimony at a
preliminary hearing as at trial. The Colorado Supreme Court
adopted this approach in People v. Fry, 92 P.3d 970 (Colo. 2004). 10 Fry

_____________________________________________________________
   10  Fry analyzed whether cross-examination at a preliminary
hearing satisfies the Confrontation Clause’s requirement that a party
have an opportunity to cross-examine. People v. Fry, 92 P.3d 970, 974–
76 (Colo. 2004) (en banc); see Crawford v. Washington, 541 U.S. 36
(2004). The Colorado Supreme Court explicitly stated that its holding
                                                         (continued . . .)


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                        Opinion of the Court


reasoned that preliminary hearings’ limited purpose curtailed the
rights of a defendant “to cross-examine witnesses and to introduce
evidence.” Id. at 977. The Fry court opined that a defendant’s
confrontation rights are limited at a preliminary hearing because
judges are prohibited from engaging in credibility determinations in
most preliminary hearings and, as a practical matter, defense counsel
may decline to cross-examine witnesses at a preliminary hearing. Id.
“Because credibility is not at issue and probable cause is a low
standard, once a prima facie case for probable cause is established,
there is little defense counsel can do to show that probable cause
does not exist.” Id. When even the most searching cross-examination
will likely still result in a probable cause finding, “defense counsel
may decline to cross-examine witnesses at the preliminary hearing,
understanding that the cross-examination would have no bearing on
the issue of probable cause and that the judge may limit or prohibit
the cross-examination.” Id.
   ¶36 Fry’s bright-line rule has some appeal. Clear rules provide
better guidance. But they provide guidance at the cost of flexibility.
That lack of flexibility could foreclose the potential for preliminary
hearing testimony to be used in those circumstances where the
nature of the case, or the testimony of the unavailable witness, is
such that defense counsel really did possess the same motive and
was permitted a full opportunity for cross-examination at the
preliminary hearing. Although such cases might prove rare, we can
envision scenarios where, for whatever reason, defense counsel
possesses the same motive and is provided the same opportunity to
cross-examine as she would have at trial. In such a case, the policy
behind a bright-line rule should bend to permit the admission of the
preliminary hearing testimony that would violate neither the rules of
evidence nor the defendant’s constitutional rights.
   ¶37 Many courts have reached the same conclusion and
eschewed a blanket rule in favor of a case-by-case examination. For
example, the Supreme Court of Wyoming reasoned that “[t]here will
undoubtedly be cases in which preliminary hearing testimony
should not be admitted at trial because the defense attorney did not


(continued . . .)
“do[es] not delve into whether the preliminary hearing testimony
would be admissible under a hearsay exception.” Fry, 92 P.3d at 978.




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have a similar motive to cross-examine the witness at the
preliminary hearing but has a compelling motive to undertake that
cross-examination at trial.” Rodriguez v. State, 711 P.2d 410, 414 (Wyo.
1985). But Rodriguez recognized that “[t]here will also be cases, . . . in
which the defense attorney has a motive at the preliminary hearing
to cross-examine the witness which is similar to his motive to cross-
examine at trial.” Id. Other courts have similarly adopted a case-by-
case approach. See, e.g., State. v. Ricks, 840 P.2d 400, 406–07 (Idaho Ct.
App. 1992) (adopting a case-by-case rule).
    ¶38 The State points out that both the United States Supreme
Court and this court have repeatedly held that preliminary hearing
testimony of an unavailable witness may be admissible at trial. The
State discusses California v. Green, in which the United States
Supreme Court upheld the admission of preliminary hearing
testimony under the Confrontation Clause. 399 U.S. 149, 165 (1970).
In Green, officers arrested a minor named Porter for selling
marijuana to an undercover officer. Id. at 151. Porter identified Green
as his supplier. Id. Porter testified for the State at Green’s
preliminary hearing and his “story at the preliminary hearing was
subjected to extensive cross-examination by [defense] counsel.” Id.
Porter testified again at trial but became “markedly evasive and
uncooperative,” claiming that he was uncertain how he obtained the
marijuana. Id. at 151–52 (citation omitted). The California Supreme
Court held that admitting Porter’s preliminary hearing testimony
violated Green’s confrontation rights. Id. at 153.
    ¶39 The United States Supreme Court reversed. The Court
reasoned that “Porter’s preliminary hearing testimony was
admissible” under the Confrontation Clause, even if Porter had not
testified at trial, because his preliminary hearing statement was
“given under circumstances closely approximating those that
surround the typical trial.” Id. at 165. The State highlights that the
Court found circumstances at the preliminary hearing “closely
approximat[ed]” those at trial because “Porter was under oath;
[Green] was represented by counsel . . . ; [Green] had every
opportunity to cross-examine Porter as to his statement; and the
proceedings were conducted before a judicial tribunal, equipped to
provide a judicial record of the hearings.” Id. Under these
circumstances, the hearing did not “significantly differ[] from an
actual trial” for confrontation purposes, and the preliminary hearing
testimony would have been admissible even if Porter had been
unavailable to testify at trial. Id.



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                         Opinion of the Court


    ¶40 The State argues that the United States Supreme Court’s
subsequent holdings continue to support the decision in Green to
admit preliminary hearing testimony. The Court held again in Ohio
v. Roberts that the preliminary hearing afforded an “adequate
opportunity to cross-examine.” 448 U.S. 56, 73 (1980) (citation
omitted), abrogated by Crawford v. Washington, 541 U.S. 36 (2004). The
Court adopted a test under which hearsay statements of an
unavailable declarant were admissible under the Confrontation
Clause so long as they bore an “adequate ‘indicia of reliability.’” Id.
at 66 (citation omitted). The Court in Crawford v. Washington
abandoned the Roberts test and determined that “preliminary
hearing testimony is admissible only if the defendant had an
adequate opportunity to cross-examine.” 541 U.S. at 57. The State
also cites United States v. Owens to assert that the “adequate
opportunity to cross-examine” guarantees only “an opportunity for
effective cross-examination, not cross-examination that is effective.”
484 U.S. 554, 557, 559 (1988) (citation omitted).
    ¶41 And we agree with the State’s reading of those cases. Those
cases, however, fail to completely reach the questions presented here
for two reasons. First, those cases examined admissibility under the
Confrontation Clause, not Rule of Evidence 804. See, e.g., Roberts, 448
U.S. at 64–65 (recognizing that “every jurisdiction has a strong
interest in . . . the development and precise formulation of the rules
of evidence applicable in criminal proceedings,” and “[t]he Court
has not sought to ‘map out a theory of the Confrontation Clause that
would determine the validity of all . . . hearsay “exceptions.”’” (third
alteration in original) (citation omitted)); Crawford, 541 U.S. at 68
(holding that the Sixth Amendment generally requires of state-
developed hearsay law “unavailability and a prior opportunity for
cross-examination”); Owens, 484 U.S. at 564 (holding that a prior,
out-of-court identification statement of a witness did not violate
either the Confrontation Clause or Federal Rule of Evidence 802).
Both the Federal and Utah Rules of Evidence require not only the
opportunity for cross-examination but also a similar motive to
develop the testimony. FED. R. EVID. 804(b)(1)(B); UTAH R. EVID.
804(b)(1)(B). Second, none of the State’s cases speak to the
preliminary hearing limitations that article I, section 12 of the Utah
Constitution imposes. Our constitution specifically limits the
purpose of preliminary hearings in a manner that can undercut
defense counsel’s opportunity to cross-examine witnesses at a




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                         Opinion of the Court

preliminary hearing and thereby modify the interest counsel has in
developing testimony on cross-examination.
    ¶42 And those limitations diminish the utility of the cases the
State relies upon. For example, the Court in Green admitted
preliminary hearing testimony because the witness gave that
testimony “under circumstances closely approximating those that
surround the typical trial.” Green, 399 U.S. at 165. Article I, section 12
of the Utah Constitution prevents us from concluding that every
preliminary hearing conducted in Utah will occur “under
circumstances closely approximating those that surround the typical
trial.” Id.; see supra ¶¶ 31–34. Indeed, as referenced above, it appears
that the vast majority of preliminary hearings will not.
    ¶43 The State turns our attention to other states that “have
similarly held preliminary hearing testimony of an unavailable
witness admissible under the confrontation clause.” See Simmons v.
State, 234 S.W.3d 321, 326 (Ark. Ct. App. 2006); 11 People v. Williams,
181 P.3d 1035, 1061 (Cal. 2008); State v. Vinhaca, No. 28571, 2009 WL
1144934, at *2 (Haw. Ct. App. May 22, 2009); State v. Young, 87 P.3d
308, 316–17 (Kan. 2004); People v. Yost, 749 N.W.2d 753, 774–75 (Mich.
Ct. App. 2008); State v. Aaron, 218 S.W.3d 501, 517 (Mo. Ct. App.
2007); 12 Chavez v. State, 213 P.3d 476, 482–84 (Nev. 2009); State v.

_____________________________________________________________
   11We note that Simmons involved deposition testimony and not
preliminary hearing testimony. 234 S.W.3d at 326.
   12 The Missouri Court of Appeals observed that “it is difficult to
find that [the defendant] had ‘the same interest and motive in his
cross-examination’” since “the issue at the preliminary hearing was
whether probable cause existed . . . whereas the issue at trial was
whether [the defendant] was guilty of the charged crimes beyond a
reasonable doubt.” Aaron, 218 S.W.3d at 513, 516 (citation omitted).
The court acknowledged that under Missouri law, the test for
whether former testimony by an unavailable declarant is admissible
is whether “the party against whom prior testimony is now offered
had, at the time the testimony was originally given, ‘the same
interest and motive in his cross-examination.’” Id. at 512 (citation
omitted). Aaron contemplated, as we do now, that state law might
preclude the admission of preliminary hearing testimony in cases
such as the one before us. However, the court reasoned that despite
the difference in interests at preliminary hearings and at trial,
                                                         (continued . . .)


                                   15
                            STATE v. GOINS
                         Opinion of the Court


Henderson, 136 P.3d 1005, 1010–11 (N.M. Ct. App. 2006); Primeaux v.
State, 88 P.3d 893, 905–06 (Okla. Crim. App. 2004). As the State
acknowledges, each of these cases determined the admissibility of
preliminary hearing testimony under the Confrontation Clause, not
under evidentiary rules.
    ¶44 The State also presents examples where this court affirmed
the admission of preliminary hearing testimony at trial where a
witness was unavailable. See Mackin v. State, 2016 UT 47, ¶¶ 38–42,
387 P.3d 986; State v. Menzies, 889 P.2d 393, 402–03 (Utah 1994); State
v. Lovell, 758 P.2d 909, 913–14 (Utah 1988); Brooks, 638 P.2d 537 (Utah
1981). We decided Menzies, Lovell, and Brooks before article I, section
12 constitutionally limited the purpose of preliminary hearings in
1995. In Mackin, we did not revisit Brooks based on the 1995


(continued . . .)
“Crawford purports to close the door on analysis of ‘firmly rooted
hearsay exceptions’ by eliminating the ‘indicia of reliability’ test
articulated in Roberts.” Id. at 517 (citation omitted).
    We disagree with Aaron’s use of Crawford to effectively read the
words “similar motive” out of the rules of evidence. Crawford
disposed of the “indicia of reliability” test, which “says that an
unavailable witness’s out-of-court statement may be admitted so
long as it has adequate indicia of reliability—i.e., falls within a
‘firmly rooted hearsay exception’ or bears ‘particularized guarantees
of trustworthiness.’” Crawford, 541 U.S. at 42 (citation omitted). Aaron
reads Crawford to prohibit “the odd possibility that a criminal
defendant’s confrontation rights may be more closely protected in
[states] by the law of evidence than by the specific command of the
Sixth Amendment.” 218 S.W.3d at 516. But in disposing of the
“indicia of reliability” test, Crawford did not impose an affirmative
duty on courts to admit all testimonial evidence that did not run
afoul of the Sixth Amendment. Rather, Crawford clarified the test to
be used to determine what prior testimony would violate the Sixth
Amendment if admitted. “Where testimonial evidence is at
issue . . . the Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for cross-
examination.” Crawford, 541 U.S. at 68. Crawford does not, as Aaron
might be read to suggest, prohibit states from developing a rule of
evidence with a more exacting test for admissibility.




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                         Opinion of the Court

constitutional amendment because neither party asked us to do so.
2016 UT 47; see State v. Houston, 2015 UT 40, ¶ 65, 353 P.3d 55 (“As a
general rule, we decline to rule or opine on issues that are not briefed
by the parties.”). Unlike the defendant in Mackin, Goins places the
issue squarely before us and challenges Brooks’s viability.
    ¶45 Finally, the State contends that Goins offers no compelling
reason to depart from our precedent. The State correctly argues that
“we do not overrule our precedents ‘lightly.’” Eldridge v. Johndrow,
2015 UT 21, ¶ 21, 345 P.3d 553 (citation omitted). However, this case
does not present the situation we confronted in Eldridge—that is, a
party asking us to depart from stare decisis principles because it
believes our precedent should be revisited. Rather, Goins asks us to
recognize that a change in law has undercut the value of our
precedent. In such a case, we are not being asked to weigh the
benefits of adherence to stare decisis against the proposed
reconsideration of our precedent. “We have long recognized the
axiom ‘that our precedent must yield when it conflicts with a validly
enacted statute.’” In re Estate of Hannifin, 2013 UT 46, ¶ 10, 311 P.3d
1016 (citation omitted). Here, Brooks was not abrogated by statute but
by a constitutional amendment supported by 69 percent of Utah
voters. State of Utah General Election 1994, ELECTIONS.UTAH.GOV 10
(Nov. 29, 1994), https://elections.utah.gov/Media/Default/Docume
nts/Election_Results/General/1994Gen.pdf. Brooks’s statement that
the same motive exists to develop testimony at a preliminary hearing
and at trial is simply not correct in light of the constitutional
amendment.
    ¶46 And it is apparent on the record before us that Goins’s
counsel did not possess the same motive to develop testimony at the
preliminary hearing that she would have had at trial. Estrada’s
testimony referenced concerns with Goins and a prior incident
between Goins and Estrada. Goins’s trial counsel had a motive to
develop this testimony and question Estrada’s credibility that went
beyond a preliminary hearing’s constitutionally limited purpose.
Without Brooks’s per se rule, we have no basis to conclude that
Goins’s counsel’s preliminary hearing motive to cross-examine was
similar to what would have existed at trial.
  ¶47 The court of appeals erred when it affirmed the
admissibility of Estrada’s preliminary hearing testimony.




                                  17
                           STATE v. GOINS
                        Opinion of the Court


             II. Admission of Estrada’s Preliminary Hearing
               Testimony Constituted Harmless Error as to
                       Goins’s Felony Conviction
    ¶48 An “error warrants reversal only if . . . . a reasonable
likelihood exists that absent the error, the result would have been
more favorable to the defendant.” State v. Dibello, 780 P.2d 1221, 1230
(Utah 1989).
   ¶49 The jury convicted Goins on two counts: a class A
misdemeanor for threatening Estrada with a knife and aggravated
assault, a third-degree felony, for his encounter with Omar. The State
contends that any error would be prejudicial only as to Goins’s class
A misdemeanor against Estrada. However, the State argues,
Estrada’s testimony “had little, if any, impact on the conviction for
assaulting Omar.” We agree.
    ¶50 The admission of Estrada’s preliminary hearing testimony
was prejudicial only as to Goins’s misdemeanor conviction. Estrada’s
testimony was the primary evidence admitted in support of Goins’s
misdemeanor charge. Because of that, we can readily conclude that
“a reasonable likelihood exists that absent the error,” Goins would
have received a more favorable outcome. Id.
    ¶51 Admission of Estrada’s testimony constituted harmless
error concerning Goins’s felony conviction for three reasons. First,
Estrada did not witness Goins’s confrontation with Omar, nor did he
testify regarding Omar’s assault. Second, an eyewitness, who
watched almost the entirety of the altercation, independently
corroborated Omar’s testimony. And finally, the prosecution
presented corroborating photographs depicting Omar’s and Goins’s
injuries.
   ¶52 Given that Estrada’s improperly admitted preliminary
hearing testimony had little, if anything, to do with Goins’s assault
on Omar, the admission of that testimony did not impact the felony
aggravated assault conviction.
         III. The Court of Appeals Did Not Err When It Refused
                to Address Goins’s Petition for Rehearing
   ¶53 Goins argues that the court of appeals erred when it denied
his petition for rehearing. Utah Rule of Appellate Procedure 35
permits parties to petition for rehearing “in cases in which the court
has issued an opinion, memorandum decision, or per curiam
decision.” UTAH R. APP. P. 35(a). Rule 35 requires that a petition for


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                         Opinion of the Court

rehearing “state with particularity the points of law or fact which the
petitioner claims the court has overlooked or misapprehended.” Id.
35(c). Goins’s petition for rehearing gives the word “overlook” a
novel interpretation. Goins contends that the failure of his original
appellate counsel to raise certain ineffective assistance claims caused
the court of appeals to “overlook” those claims.
    ¶54 Appellate courts should not consider claims that are
presented for the first time in petitions for rehearing. The plain
language of the rule provides only for presentation of “points of law
or fact” the court may have overlooked when it considered the issues
before it. Id. Rule 35 does not allow a party “to present to this court a
new theory or contention which was neither in the record as it was
before this court nor in the arguments made.” Lockhart Co. v.
Anderson, 646 P.2d 678, 681 (Utah 1982) (citation omitted); see Berg v.
Otis Elevator Co., 231 P. 832, 837–38 (Utah 1924) (refusing to consider
a new argument presented in a petition for rehearing); Swanson v.
Sims, 170 P. 774, 778 (Utah 1918) (same). In other words, the court of
appeals did not overlook or misapprehend “points of law or fact”
that were never presented to it. See UTAH R. APP. P. 35(c).
    ¶55 Goins argues that judicial economy would have been better
served if the court of appeals addressed his ineffective assistance
claim rather than “requir[ing] him to raise it later in a postconviction
proceeding.” State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991),
abrogated on other grounds by State v. Litherland, 2000 UT 76, 12 P.3d
92. Goins also notes that in Humphries, we permitted a party to raise
a claim of ineffective assistance of counsel on a petition for certiorari.
And, indeed, we did note that the case presented “peculiar, narrow
circumstances” and that we would promote judicial economy if we
decided the issue and did not require the petitioner to press the
claim in a postconviction action. Id. In Humphries, however, the State
conceded the existence of reversible error. Id. Not so here. And, as
such, the peculiar circumstances that motivated us to depart from
the normal course of action in Humphries are not present.
   ¶56 The court of appeals did not err when it refused to address
a new claim raised for the first time in a rehearing petition.
                              CONCLUSION
   ¶57 Contrary to what we said in State v. Brooks, not every cross-
examination at a preliminary hearing will be conducted with a
similar motive as if the cross-examination occurred at trial. We
disavow the holding in Brooks in light of subsequent changes to the



                                   19
                           STATE v. GOINS
                        Opinion of the Court


Utah Constitution and clarify that a district court should examine the
preliminary hearing testimony to ensure that the defendant
possessed a similar motive before admitting the testimony under
Utah Rule of Evidence 804. The court of appeals erred when it
affirmed the admission of Estrada’s preliminary hearing testimony at
trial. We also hold that this error is prejudicial only as to Goins’s
misdemeanor conviction.
    ¶58 We affirm Goins’s third-degree aggravated assault
conviction, reverse his misdemeanor conviction, and remand for
further proceedings consistent with this opinion.




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