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

                                 2015 UT 45


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                           THE STATE OF UTAH,
                                Appellee,
                                       v.
                           CODY ALAN REECE,
                              Appellant.

                              No. 20120883
                           Filed April 14, 2015

                    Third District, West Jordan
                  The Honorable Bruce C. Lubeck
                          No. 101402231

                                 Attorneys:
 Lisa J. Remal, Tawni Hanseen, Brock Van De Kamp, Lori J. Steppi,
                   Salt Lake City, for appellant
 Sean D. Reyes, Att‘y Gen., Christopher D. Ballard, Asst. Att‘y Gen.,
                             for appellee

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM, JUSTICE PARRISH, and
                       JUDGE ORME joined.
  JUSTICE NEHRING did not participate herein due to his retirement;
           COURT OF APPEALS JUDGE GREGORY K. ORME sat.
    JUSTICE DENO G. HIMONAS became a member of the Court on
      February 13, 2015, after oral argument in this matter, and
                  accordingly did not participate.

   CHIEF JUSTICE DURRANT, opinion of the Court:
                               Introduction
   ¶1 Cody Reece was convicted of aggravated murder,
aggravated burglary, possession of a weapon by a restricted person,
and obstruction of justice. He argues that we must vacate his
                             STATE v. REECE
                          Opinion of the Court
convictions because the trial court erred by (1) denying his request
for a variety of lesser-included-offense jury instructions,
(2) preventing him from asking twelve questions during voir dire,
(3) refusing to exclude evidence that he was arrested with a stolen
rifle in his car one month after the murder, and (4) refusing to sever
the weapons offense from the other charges.
    ¶2 We affirm Mr. Reece‘s convictions. First, although the court
erred in denying Mr. Reece‘s request for lesser-included-offense
instructions on several variants of unintentional homicide, the error
was harmless due to the overwhelming evidence that Mr. Reece
committed aggravated murder. Second, the court‘s limits on voir
dire questioning were not improper—Mr. Reece was allowed to ask
almost two hundred questions from his proposed juror
questionnaire, and the court also permitted unlimited individual
follow-up questioning with each prospective juror, so Mr. Reece had
ample opportunity to evaluate each juror for potential biases. Third,
the stolen-rifle evidence was properly admitted because it was
relevant to the genuine noncharacter purpose of linking Mr. Reece to
the murder weapon, and the evidence was unlikely to improperly
affect the jurors‘ decision in light of the significant criminal conduct
Mr. Reece admitted to in his trial testimony. Finally, the court‘s
refusal to sever the weapons charge was not an abuse of discretion,
because the jury never heard any evidence that Mr. Reece was a
convicted felon.
    ¶3 Mr. Reece also challenges his sentence, arguing that the
noncapital-aggravated-murder            sentencing        statute      is
unconstitutional. And even if it is not, he maintains that the court
abused its discretion when it imposed a sentence of life without
parole (LWOP) because it erroneously interpreted the sentencing
statute as establishing a presumptive LWOP sentence. We conclude
that the sentencing statute is constitutional for reasons we recently
discussed in State v. Perea.1 But because the record is unclear as to
how the court‘s incorrect reading of the statute influenced its
decision to impose an LWOP sentence, we remand for the court to
determine whether its erroneous interpretation of the statute affected
its sentencing decision. If the court concludes that it did, Mr. Reece is
entitled to a new sentencing hearing.




   1   2013 UT 68, 322 P.3d 624.

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                             Background
    ¶4 The victim‘s husband returned home from work on the
evening of July 13, 2010, to find his wife lying dead on the couch in
their front room. She had a gunshot wound in her forehead and
there was a bullet hole in the couch next to her body. The victim‘s
face had been beaten with a hard object, and she had ―deep gouges‖
on the back of her hands, most likely from attempting to shield her
face during the attack. Police recovered a 9 mm shell casing, two
slugs, and a broken piece of plastic, which they later matched with
the guide rod used in a Beretta handgun. There was no sign of forced
entry, no missing valuables, and no evidence of a struggle elsewhere
in the home. Investigators determined that the victim was likely
killed right where she was found on the couch by a bullet fired at a
downward trajectory about one foot away from her head. Police
never recovered the murder weapon.
    ¶5 That same evening, after several days of heavy drug use,
Cody Reece drove to the victim‘s neighborhood in Sandy, Utah, to
steal mail. Around 6:30 p.m., he took a brown package from a home
located about one-half mile west of the victim‘s. Fifteen minutes
later, witnesses saw Mr. Reece speeding through a construction site
on 700 East in a black Mazda. Mr. Reece collided with another
vehicle and drove off, eventually abandoning the Mazda in a
neighborhood a mile north of the accident. He then walked through
the neighborhood and knocked on several doors, asking for a glass
of water and to use a phone. At one of the homes, he stole a money
order out of the mailbox when the homeowner left the front door to
retrieve a phone for Mr. Reece to use. He entered another home
through the back door without permission, punched one of its
occupants several times, and then fled through the front door.
Eventually, several neighbors tackled Mr. Reece and restrained him
until police arrived. Mr. Reece was arrested and jailed for assault
and burglary.
    ¶6 Police began to suspect that Mr. Reece was involved in the
victim‘s death, and three days after his arrest, they obtained a search
warrant for his clothing. Investigators found a blood ―stain on the
bottom right-hand side‖ of Mr. Reece‘s shirt ―as well as some
droplets and a smear.‖ There were also ―two little droplets or spots‖
on the ―back side of the shirt above the right shoulder.‖ DNA testing
revealed that the first stain contained a mixture of DNA from which
neither Mr. Reece nor the victim could be excluded as contributors.
The second stain matched the victim‘s DNA.


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                         Opinion of the Court
    ¶7 Police interviewed Mr. Reece on July 21, and he claimed that
he could not remember much of what happened the day of the
murder because he had been drinking heavily and using Xanax. He
said he remembered getting into a car accident, running away
because he thought his car had been hit intentionally, and being
arrested. But he claimed not to remember entering any homes in the
victim‘s neighborhood.
   ¶8 While in jail, Mr. Reece called his mother several times
asking for help posting bail. When his mother asked him why he
was in jail, he explained that his memory was ―fuzzy,‖ but he
remembered things he could not talk about on the phone. According
to Mr. Reece‘s cellmate (Cellmate), Mr. Reece told him that he
entered the victim‘s home because as ―he was driving by [the]
house,‖ he saw ―the garage door open[]‖ and ―didn‘t see any cars,‖
so he believed no one was home. But once Mr. Reece was inside, ―a
lady came up and grabbed‖ him, ―he grabbed his gun, turned
around . . . and the gun went off by accident.‖ Mr. Reece eventually
posted bail and was released.
    ¶9 Once he was out of jail, Mr. Reece visited a friend (Friend)
who, unbeknownst to Mr. Reece, was a paid confidential informant.
She told investigators that Mr. Reece asked her for money and said
he felt like he was going to go to prison for a long time if he did not
get out of town. According to Friend, Mr. Reece said that he
―probably shot a lady‖ and that he was having flashbacks of running
through a restaurant with blood on his clothes and throwing his
clothes and a gun into a dumpster. Friend also claimed that she was
with Mr. Reece the day before the murder and saw him cleaning a
9 mm Beretta handgun.
    ¶10 Police arrested Mr. Reece again on August 10 based on a
report that he was stealing license plates. They found a stolen assault
rifle in his car, which they traced to a theft in Park City. According to
the rifle‘s owner, the rifle and a 9 mm Beretta handgun were both in
his truck the day the rifle was stolen in January 2010.
    ¶11 The State charged Mr. Reece with aggravated murder,
aggravated burglary, possession of a dangerous weapon by a
restricted person, and obstruction of justice. Over Mr. Reece‘s
objection, the trial court granted the State‘s motion to introduce the
stolen rifle as evidence linking him to a 9 mm Beretta handgun.
   ¶12 At trial, Mr. Reece denied telling Cellmate that he struggled
with and accidentally shot the victim. He claimed that he did not
have a gun on July 13 and said that Friend was lying about his
incriminating statements and seeing him cleaning a 9 mm Beretta on

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July 12. According to Mr. Reece, he was in the victim‘s neighborhood
stealing mail when he heard a gunshot inside her home. He went
inside to assist a woman he saw lying motionless in the living room,
believing she may have tried to kill herself. He claimed that while he
was leaning over her, he got some blood on his shirt, and he looked
up to see a man with a gang tattoo holding a gun. Mr. Reece
explained that he fled when the man turned the gun on him and that
he purchased the stolen assault rifle for protection. He admitted that
he had previously owned a 9 mm Beretta but insisted that he got rid
of the gun in early 2010.
    ¶13 Mr. Reece requested that the court issue lesser-included-
offense instructions on murder, felony murder, manslaughter,
negligent homicide, and homicide by assault. The court denied the
request, concluding that Mr. Reece‘s testimony ―create[d] an all-or-
nothing situation‖ and that there was no rational basis to believe
Cellmate‘s testimony that the murder was inadvertent, in light of the
physical evidence of an intentional killing. Mr. Reece also submitted
a 193-question juror questionnaire. The court struck twelve questions
and modified several others, citing concern for the jurors‘ privacy.
    ¶14 Mr. Reece moved to sever the weapons charge, which the
court granted in part. The court instructed the jurors to determine
whether Mr. Reece was in possession of a firearm on July 13 and
informed them that it was unlawful under some circumstances for a
person to purchase or possess a gun. The jury found Mr. Reece guilty
of all charges and found that he possessed a weapon on July 13.
Mr. Reece waived his right to a jury trial on the restricted person
element of the weapons offense, and the court found that Mr. Reece
was a convicted felon at the time he possessed a firearm.
    ¶15 Mr. Reece also filed a motion asserting that the aggravated
murder sentencing statute was unconstitutional. The court rejected
his claims and sentenced Mr. Reece to LWOP. He now appeals. We
have jurisdiction under Utah Code section 78A-3-102(3)(i).
                            Standard of Review
    ¶16 Mr. Reece urges us to vacate his conviction and remand for
a new trial. First, he argues that he was entitled to lesser-included-
offense instructions on murder, felony murder, manslaughter,
negligent homicide, and homicide by assault. ―A trial court‘s refusal
to grant a lesser included offense instruction is a question of law,
which we review for correctness.‖2 Second, he argues that the court

   2   State v. Powell, 2007 UT 9, ¶ 12, 154 P.3d 788.

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                           Opinion of the Court
inappropriately limited the scope of voir dire, inhibiting his ability
―to question the prospective jurors about their biases related to
substance abuse, association, employment, ties to the legal
community and/or prosecutorial agencies, and upbringing.‖ We
review a judge‘s decision imposing limits on voir dire questioning
for an abuse of discretion.3
    ¶17 Third, Mr. Reece contends that the trial court should have
excluded evidence that police found a stolen assault rifle in
Mr. Reece‘s car one month after the murder. ―A trial court‘s
admission of prior bad acts evidence is reviewed for abuse of
discretion, but the evidence must be scrupulously examined by trial
judges in the proper exercise of that discretion.‖4 Fourth, Mr. Reece
argues that the weapons offense should have been severed from the
other charges because evidence that he unlawfully possessed a
weapon ―was not relevant‖ to the other charges ―except to show a
criminal disposition.‖ ―A ruling on a motion to sever charges‖ is
discretionary ―and will not be disturbed on appeal, absent an abuse
of discretion.‖5
    ¶18 Finally, Mr. Reece argues in the alternative that we ―should
remand for a new sentencing hearing because (1) the noncapital
aggravated murder sentencing statute is unconstitutional‖ and
―(2) the court abused its discretion by sentencing Mr. Reece to‖ life
without parole. The constitutionality of a statute is a question of law
reviewed for correctness.6 We review a trial court‘s sentencing
decision for abuse of discretion.7
                                 Analysis
    ¶19 We affirm Mr. Reece‘s conviction. Even though the trial
court erred in denying Mr. Reece‘s request for lesser-included-
offense instructions, the error was harmless in light of
uncontroverted physical evidence that linked Mr. Reece to the crime
scene and demonstrated that the murder was intentional. The court
did not abuse its discretion in imposing limits on voir dire

   3   State v. Piansiaksone, 954 P.2d 861, 867–68 (Utah 1998).
   4State v. Verde, 2012 UT 60, ¶ 13, 296 P.3d 673 (internal quotation
marks omitted).
   5State v. Saunders, 699 P.2d 738, 740 (Utah 1985), abrogated on other
ground by State v. Doporto, 935 P.2d 484, 489 (Utah 1997).
   6   State v. MacGuire, 2004 UT 4, ¶ 8, 84 P.3d 1171.
   7   State v. Moa, 2012 UT 28, ¶ 34, 282 P.3d 985.

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questioning. Mr. Reece‘s attorney was allowed unlimited individual
follow-up questions with each prospective juror and the totality of
the lengthy juror questionnaire afforded him ample opportunity to
unearth potential juror biases. The trial court did not abuse its
discretion in admitting the stolen-rifle evidence, because the
evidence was relevant to a genuine noncharacter purpose—whether
Mr. Reece had access to the type of weapon investigators believed
was used to kill the victim—and its admission was not unfairly
prejudicial in light of the other evidence admitted at trial. Denying
Mr. Reece‘s motion to sever the weapons charge was also not an
abuse of discretion, because the court bifurcated the weapons charge
in a way that prevented the jury from ever learning that Mr. Reece
was a convicted felon.
    ¶20 We also conclude that the noncapital aggravated murder
sentencing statute is constitutional for reasons we recently discussed
in State v. Perea,8 but we agree with Mr. Reece that the trial court
incorrectly interpreted the statute as imposing a presumptive
sentence of LWOP. We therefore remand to the trial court for a
limited hearing to determine how this mistake influenced the court‘s
sentencing decision. If the trial court determines that its mistaken
interpretation of the statute impacted the ultimate decision to
impose LWOP, Mr. Reece is entitled to a new sentencing hearing.
          I. Mr. Reece Was Entitled to Lesser-Included-Offense
                 Instructions, but the Error Was Harmless
    ¶21 Mr. Reece argues that the trial court improperly denied his
request for lesser-included-offense instructions on murder, felony
murder, manslaughter, negligent homicide, and homicide by assault.
Utah Code section 76-1-402 provides that trial courts ―shall not be
obligated to charge the jury with respect to an included offense
unless there is a rational basis for a verdict acquitting the defendant
of the offense charged and convicting him of the included offense.‖9
This court has interpreted section 76-1-402 to require a defendant to
make two showings before he is entitled to a lesser-included-offense
instruction: ―(1) that the charged offense and the lesser included
offense have overlapping statutory elements and (2) that the
evidence provides a rational basis for a verdict acquitting the
defendant of the offense charged and convicting him of the included


   8   2013 UT 68, ¶¶ 108–27, 322 P.3d 624.
   9   UTAH CODE § 76-1-402(4).

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                            Opinion of the Court
offense.‖10 The State concedes, and we agree, that the statutory
elements of aggravated murder overlap with each of Mr. Reece‘s
proposed lesser included offenses. We also agree with Mr. Reece that
Cellmate‘s testimony, considered in isolation, provides a rational
basis in the evidence to acquit him of aggravated murder and
convict him of lesser included offenses that punish unintentional
killings. But errors in criminal proceedings usually justify reversal
only if there is a reasonable likelihood that the error affected the
outcome of the proceedings.11 And in light of the uncontroverted
physical evidence linking Mr. Reece to the crime scene and showing
overwhelmingly that he killed the victim intentionally, we conclude
that the error was harmless.
        A. There is a Rational Basis in the Evidence to Acquit Mr. Reece of
              Aggravated Murder and Convict Him of Lesser Included
                      Offenses Involving Unintentional Killings
    ¶22 Even if the statutory elements of a lesser included offense
overlap with those of the charged offense, ―a defendant‘s right to a
lesser included offense instruction is limited by the evidence and
only justified where there is a rational basis for a verdict acquitting
the defendant of the offense charged and convicting him of the
included offense.‖12 In making that determination, trial courts must
―view[] the evidence in the light most favorable to the defendant‖
and cannot ―weigh the evidence.‖13 Rather, ―when the evidence is
ambiguous and therefore susceptible to alternative interpretations,
and one alternative would permit acquittal of the greater offense and
conviction of the lesser, a jury question exists and the court must
give a lesser included offense instruction at the request of the
defendant.‖14 This standard assures that lesser-included-offense
instructions serve their intended purpose of safeguarding a


    State v. Powell, 2007 UT 9, ¶ 24, 154 P.3d 788 (internal quotation
   10

marks omitted).
   11  See State v. Vargas, 2001 UT 5, ¶ 48, 20 P.3d 271 (―Even
assuming the trial court erred in concluding there was good cause
for allowing the State to obtain the defense witness list, we will not
reverse [the] trial court for committing harmless error.‖ (alteration in
original) (internal quotation marks omitted)).
   12   Powell, 2007 UT 9, ¶ 27 (internal quotation marks omitted).
   13   Id.
   14   State v. Baker, 671 P.2d 152, 159 (Utah 1983).

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defendant‘s constitutional right to a fair trial15 without ―allow[ing]
the jury to return a compromise, or other unwarranted verdict.‖16
We conclude that the trial court properly denied Mr. Reece‘s request
for a lesser-included-offense instruction on murder, but because
there was a rational basis in the evidence for the jury to conclude
that the killing was unintentional, the court erred in denying Mr.
Reece‘s request for an instruction on the other lesser included
offenses that punish unintentional killings.
1. There was no rational basis in the evidence to justify a jury
   instruction on murder
    ¶23 As we have discussed, Mr. Reece is not entitled to a lesser-
included-offense instruction on murder unless there is a rational
basis to convict him of that offense and acquit him of aggravated
murder. Aggravated murder occurs when a person ―intentionally or
knowingly causes the death of another . . . incident to‖ the
commission of a listed felony.17 And in this case, the State charged
Mr. Reece with killing the victim during the course of a burglary,
which is one of the felonies listed in the aggravated murder statute.
Mr. Reece argues that ―there was evidence to support a verdict of
murder because there was a rational basis to find that [he] did not
commit burglary,‖ but intentionally or knowingly killed the victim.
He points out that ―[n]othing was stolen or disturbed in the home‖
and that he ―was extremely intoxicated and suffering paranoia,
anxiety, and memory loss‖ at the time. He also cites evidence in the
record that ―he approached other homes‖ in the victim‘s
neighborhood ―for purposes other than theft or assault—e.g., he
entered one home looking for ‗Mike‘ and approached others looking
for a telephone or glass of water.‖ The State maintains that ―[e]ven if
the jury might have believed that [Mr. Reece] innocently entered [the
victim‘s] home, once it found that he committed an intentional
homicide there, it would also necessarily find that he‖ committed a
burglary and aggravated murder. We agree with the State.
   ¶24 No rational jury could have concluded that Mr. Reece
committed murder without also concluding that he committed a
burglary. Burglary occurs when a defendant ―enters or remains
unlawfully in a building or any portion of a building with intent to


   15   See id. at 157.
   16   Powell, 2007 UT 9, ¶ 27 (internal quotation marks omitted).
   17   UTAH CODE § 76-5-202(1)(d).

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                              Opinion of the Court
commit: (a) a felony; (b) theft; [or] (c) an assault on any person.‖18 In
other words, a person can commit burglary without stealing
anything—a person who commits any felony while remaining
unlawfully inside a building is also guilty of burglary. And we have
previously concluded that a defendant can ―form the intent to
commit another crime at the time he enters or while he remains
unlawfully in [a] building.‖19 Accordingly, in State v. Tillman, we
determined that a defendant who broke into the victim‘s home for
the purpose of killing him had committed ―first degree murder,‖20
an offense Utah law now punishes as aggravated murder.21 We
rejected the contention that ―since burglary is a completed offense
the moment entry is made with the requisite felonious intent, such
circumstance . . . could not provide the basis for elevating the
subsequent intentional killing to first degree murder.‖22 Instead, we
determined that because the defendant ―committed an intentional
homicide‖ after unlawfully entering the victim‘s home, the evidence
―clearly supported‖ a conclusion that the defendant committed a
burglary and elevated the killing from murder to first degree
murder.23
    ¶25 Here, Mr. Reece is correct that there is no evidence that he
took anything from the victim‘s home. A crime scene investigator
testified that ―[t]he house was extremely clean‖ and that ―nothing
[was] out of order.‖ The victim‘s husband also testified that, to the
best of his knowledge, nothing was missing from his home after the
murder. And Mr. Reece also testified that he entered the home
lawfully ―to help‖ a woman he saw through the window ―lying flat‖
after he heard a gunshot. But even if the jury believed that Mr.
Reece‘s initial entry was a lawful attempt to aid someone in distress,
Mr. Reece‘s presence in the home became unlawful the moment he
decided to ―intentionally or knowingly‖ kill the victim.24 If the jurors

      18   UTAH CODE § 76-6-202(1).
      19   State v. Rudolph, 970 P.2d 1221, 1229 (Utah 1998).
      20   750 P.2d 546, 551, 571–72 (Utah 1987).
      21   See UTAH CODE § 76-5-202(1)(d); Tillman, 750 P.2d at 550, 568–
69.
      22   Tillman, 750 P.2d at 571 (internal quotation marks omitted).
      23   Id. at 572.
      See UTAH CODE § 76-6-202(1)(a) (providing that a person
      24

commits burglary by ―enter[ing] or remain[ing] unlawfully in a
building or any portion of a building with intent to commit . . . a

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believed that Mr. Reece committed murder while ―remain[ing]
unlawfully‖ in the victim‘s home, they would have no choice but to
convict him of burglary as well, even though he did not steal
anything. And if Mr. Reece ―intentionally or knowingly‖ caused the
victim‘s death ―incident to . . . a burglary,‖ no reasonable juror could
conclude that Mr. Reece committed murder without also
determining that the killing amounted to aggravated murder.25 We
therefore conclude that the trial court properly denied Mr. Reece‘s
request for a lesser-included-offense instruction on murder.
2. There was a rational basis in the evidence to justify jury
   instructions on several variants of unintentional homicide
   ¶26 But we cannot agree with the trial court‘s conclusion that
there was no rational basis in the evidence to justify instructions on
the other lesser included offenses Mr. Reece requested. Mr. Reece
asked the court for instructions on several other offenses, all of
which punish unintentional killings.26 The only evidence of an
accidental murder was Cellmate‘s account of his jailhouse
conversation with Mr. Reece. According to Cellmate, Mr. Reece told
him that he ―walked in‖ to the victim‘s home and ―a lady came up
and grabbed him, and he grabbed his gun, turned around . . . and the
gun went off by accident.‖
    ¶27 The trial court acknowledged that Cellmate‘s testimony,
standing alone, ―would have justified lesser instructions.‖ But the
court denied the requested instructions because Mr. Reece testified
that Cellmate was lying—he claimed that he ―[n]ever told‖ Cellmate
―that there was a lady inside the house . . . that startled‖ him or ―that
somewhere in the process of interacting with this lady . . . the gun
went off.‖ The court also noted that Cellmate‘s testimony was
inconsistent with the physical evidence. A crime scene investigator
testified that there were ―no drag marks, no smear marks . . . in the


felony‖); id. § 76-5-203(2)(a) (defining murder as ―intentionally or
knowingly caus[ing] the death of another‖).
   25  Id. § 76-5-202(1)(d) (defining aggravated murder as
―intentionally or knowingly‖ causing a death ―incident to . . .
aggravated burglary[ or] burglary‖).
   26  Mr. Reece argues in his reply brief that a depraved-
indifference-murder instruction would have been appropriate, and
he asked the trial court for instructions on felony murder,
manslaughter, negligent homicide, and homicide by assault.

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                           Opinion of the Court
blood that we could see. No blood anywhere else [was] found. All
the blood was concentrated in that one area right on the love seat‖
where investigators found the victim‘s body. The investigator also
testified that the victim‘s gunshot wound was consistent with a
bullet fired at a ―downward trajectory‖ about one foot away from
her head. And a weapons expert testified that the gun likely used to
kill the victim can be discharged only if ―the trigger is pulled . . . to
90 percent engagement,‖ making it highly unlikely that this ―type of
gun . . . may accidentally go off.‖
    ¶28 The State argues that Cellmate‘s ―testimony cannot support
a lesser included offense instruction because‖ Mr. Reece ―took the
stand and repudiated it.‖ According to the State, our obligation to
―view[] the evidence in the light most favorable to the defendant
requesting the instruction‖27 requires us ―to take Mr. Reece at his
word and discount [Cellmate‘s] testimony.‖ Additionally, the State
maintains that Cellmate‘s testimony, standing alone, provides no
basis for reasonable jurors to ignore the ―uncontradicted physical
evidence demonstrat[ing] that the shooting was intentional.‖ We
disagree.
    ¶29 The ―light most favorable standard‖ serves several
important functions, including preserving the jury‘s ―responsibility
of evaluating the weight and credibility of the evidence.‖28 Indeed, in
determining whether there is a rational basis in the evidence to
support a lesser-included-offense instruction, a trial court may not
―weigh the credibility of the evidence.‖29 Rather, ―when the evidence
is ambiguous and therefore susceptible to alternative interpretations,
and one alternative would permit acquittal of the greater offense and
conviction of the lesser, a jury question exists and the court must
give a lesser included offense instruction at the request of the
defendant.‖30 Consequently, instead of ignoring Cellmate‘s
testimony and confining our analysis to evidence that supports the
specific defense theory Mr. Reece presented at trial, we examine the
entire ―record taken as a whole,‖31 accepting whatever portions of




   27   Powell, 2007 UT 9, ¶ 27.
   28   Id.
   29   Baker, 671 P.2d at 159.
   30   Id.
   31   See Powell, 2007 UT 9, ¶ 27.

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witness testimony, as well as other evidence, that support the
requested lesser-included-offense instruction.32
    ¶30 There may be some cases where this ―process of dissect[ing]
and reconstruct[ing]‖ the evidence fails to reveal a rational basis in
the evidence for a lesser-included-offense instruction despite some
supporting evidence.33 For instance, although trial courts must
construe the facts and all reasonable inferences from them in favor of
the defendant, an inference is not reasonable if ―it falls to a level of
inconsistency or incredibility that no reasonable jury could accept
it.‖34 In other words, a ―defendant‘s request for a lesser included
offense instruction‖ cannot be ―based on sheer speculation‖35 from a
discrete piece of evidence if, viewed in the context of the record as a
whole, acquitting the defendant of the greater offense and convicting
of the lesser would require jurors to fill gaps in the evidentiary
picture with their own speculative judgments.36 For instance, in
State v. Kell, we concluded that the defendant was not entitled to an


   32 Cf. Baldwin v. Vantage Corp., 676 P.2d 413, 417 (Utah 1984)
(noting that ―the testimony of witnesses is to be given such weight
and credibility as the trier of fact may find reasonable under the
circumstances‖).
   33   See United States v. Moore, 108 F.3d 270, 273 (10th Cir. 1997).
   34State v. Maughan, 2013 UT 37, ¶ 14, 305 P.3d 1058 (internal
quotation marks omitted).
   35   Powell, 2007 UT 9, ¶ 33.
   36 See, e.g., State v. Garcia-Vargas, 2012 UT App 270, ¶ 17, 287 P.3d
474 (denying a request for a lesser-included-offense instruction
where even though the defendant‘s testimony raised ―at least the
possibility‖ that he committed the lesser offense but not the greater,
that conclusion was ―entirely speculative‖ based on other evidence
in the case); Moore, 108 F.3d at 273 (―While it is sometimes
permissible for the jury to dissect and reconstruct the evidence to
identify a rational basis upon which to convict on the lesser and
acquit on the greater offense, the process of dissection and
reconstruction must itself be rationally motivated.‖ (footnote
omitted)); United States v. Crowder, 543 F.2d 312, 318 (D.C. Cir. 1976)
(rejecting a request for a self-defense instruction because ―[t]he
theory fragments the testimony in a selective process . . . so
attenuated as to strain credulity to the breaking point‖ (internal
quotation marks omitted)).

                                      13
                                  STATE v. REECE
                            Opinion of the Court
instruction on imperfect self-defense manslaughter, even though he
―testified that he believed he was acting out of self-defense‖ when he
killed the victim.37 We noted that because the defendant stabbed the
victim multiple times in the back while the victim was both unarmed
and handcuffed, the ―great weight of the evidence‖ contradicted the
defendant‘s claim and strongly indicated that the defendant ―could
not have believed himself to be in imminent danger at the time of the
attack.‖38
    ¶31 But here, unlike the evidence presented in Kell, Cellmate‘s
testimony could have supported an inference that the murder was
unintentional without requiring the jurors to engage in speculation.
Viewing the evidence in the light most favorable to Mr. Reece, we
must assume that he perjured himself at trial when he testified that
he did not have a gun the day of the murder and that someone else
killed the victim. And we must also assume that Mr. Reece was
being truthful when he told Cellmate that his gun went off
inadvertently during a brief struggle with the victim. Reaching these
conclusions would not require a reasonable juror to ignore the
physical evidence; rather, the jurors could have simply believed that
the location of the victim‘s blood and the trajectory of the bullet
demonstrated that Mr. Reece discovered the victim in her living
room, struggled with her near the couch, and accidentally shot her
when she reached for his gun. Such a scenario would be consistent
with the victim‘s husband‘s description of her as someone who
―wouldn‘t back down‖ and would have tried to fight off her
attacker. The State‘s experts, of course, interpreted the evidence
differently, but the jurors can assign expert ―testimony any weight
they choose, including no weight at all.‖39 We therefore conclude
that there was ―a sufficient quantum of evidence to raise a jury
question‖40 about whether Mr. Reece shot the victim inadvertently,
and the court therefore erred by concluding that there was no
rational basis for lesser-included-offense instructions involving an
unintentional killing.



   37   2002 UT 106, ¶ 25, 61 P.3d 1019.
   38   Id.
   39Dixon v. Stewart, 658 P.2d 591, 597 (Utah 1982) (―No matter how
arcane the subject matter or how erudite the witness, the jury is not
required to accept the expert‘s testimony as conclusive.‖).
   40   Baker, 671 P.2d at 159.

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                           Opinion of the Court

             B. Failing to Issue Lesser-Included-Offense Instructions
                                 Was Harmless Error
    ¶32 Having concluded that Mr. Reece was entitled to a lesser-
included-offense instruction, we now turn to the question of whether
the trial court‘s error prejudiced his case. We begin by clarifying an
ambiguity in our caselaw—whether the improper denial of a lesser-
included-offense instruction presumptively affects the outcome of a
case and precludes any harmless error analysis. We conclude that
denying a lesser-included-offense instruction is an ordinary trial
error to which harmless error analysis applies. We also conclude that
the trial court‘s error in denying Mr. Reece‘s requested instructions
was harmless in light of the overwhelming evidence linking him to
the crime scene and demonstrating that the murder was intentional.
1. Failing to instruct the jury on a lesser included offense is not a
   structural error
    ¶33 An error is harmless and does not require reversal if it is
―sufficiently inconsequential that we conclude there is no reasonable
likelihood that the error affected the outcome of the proceedings.‖41
Stated differently, ―the likelihood of a different outcome‖ absent the
error ―must be sufficiently high to undermine confidence in the
verdict.‖42 Errors are often harmless where there is overwhelming
evidence in the record of the defendant‘s guilt.43 And the defendant
generally bears the burden to demonstrate that the error he
complains of affected the outcome of his case.44

   41   State v. Verde, 770 P.2d 116, 120 (Utah 1989).
   42 State v. Hamilton, 827 P.2d 232, 240 (Utah 1992) (internal
quotation marks omitted).
   43  See, e.g., State v. Maestas, 2012 UT 46, ¶ 165, 299 P.3d 892
(concluding that a prosecutor‘s inappropriate reference during
closing argument to the fact that the defendant did not testify was
harmless because ―the jury was given a strong curative instruction
and there was overwhelming evidence‖ of the defendant‘s guilt);
State v. Young, 853 P.2d 327, 345 (Utah 1993) (concluding that even if
―the trial court erred in admitting evidence of [the defendant‘s]
attempted flight from the police,‖ the error was harmless ―[i]n light
of the overwhelming evidence of defendant‘s guilt‖).
   44 See State v. Bell, 770 P.2d 100, 106 (Utah 1988); see also UTAH R.
CRIM. P. 30(a) (―Any error, defect, irregularity or variance which does
not affect the substantial rights of a party shall be disregarded.‖).

                                     15
                               STATE v. REECE
                            Opinion of the Court
    ¶34 But there is a narrow exception to this general rule. We have
recognized that ―structural errors‖ that affect ―the framework within
which the trial proceeds‖ are qualitatively different than an ordinary
―error in the trial process itself.‖45 Consequently, we presume that a
structural error affected the outcome of the case and do not require
the defendant to show prejudice.46 Examples of such errors include
mistakes in reasonable doubt instructions,47 the complete denial of
counsel at a critical stage of a criminal proceeding,48 racial
discrimination in jury selection,49 lack of an impartial trial judge,50
denial of the right to a public trial,51 and the failure to instruct the
jury on ―the basic elements of an offense.‖52
    ¶35 Citing our decision in State v. Spillers,53 Mr. Reece argues
that when a trial court fails to give a lesser-included-offense
instruction, ―[p]rejudice . . . is not measured by the strength of the
evidence but by whether the evidence is consistent with both the
defendant‘s and the State‘s theory of the case.‖ In other words,
Mr. Reece contends that as long as there is a rational basis in the
evidence to support instructing the jury on a lesser included offense,

    State v. Cruz, 2005 UT 45, ¶ 17, 122 P.3d 543 (internal quotation
   45

marks omitted).
   46   Id.
   47   Id. ¶¶ 17–18.
   48Gideon v. Wainwright, 372 U.S. 335, 339, 342–45 (1963); see also
Maestas, 2012 UT 46, ¶ 57.
   49 Batson v. Kentucky, 476 U.S. 79, 100 (1986); State v. Higginbotham,
917 P.2d 545, 547–48 (Utah 1996). But see State v. Harris, 2012 UT 77,
¶ 30 n.13, 289 P.3d 591 (―Harris also urges us to adopt the view that
Batson errors are structural in nature and therefore obviate the
prejudice inquiry under the plain error standard. Because we
conclude that any error here could not have been obvious to the trial
court, however, we need not and accordingly do not reach the
prejudice question of the ‗structural error‘ ground for avoiding proof
of prejudice.‖).
   50 Kell, 2002 UT 106, ¶ 15 n.2 (citing Johnson v. United States, 520
U.S. 461, 468–69 (1997)).
   51   Id. ¶ 15.
    State v. Bluff, 2002 UT 66, ¶ 26, 52 P.3d 1210 (internal quotation
   52

marks omitted).
   53   State v. Spillers, 2007 UT 13, ¶ 24, 152 P.3d 315.

                                      16
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                           Opinion of the Court

a trial court‘s failure to instruct the jury presumptively affects the
outcome of trial and is not subject to our typical harmless error
analysis on appeal.
    ¶36 We reject Mr. Reece‘s contention for two reasons. First,
although Mr. Reece cites language in two cases that seems to support
his position, this court has never held that failing to instruct the jury
on a lesser included offense is a structural error. Second, the failure
to instruct the jury on a lesser included offense bears a close
resemblance to other ordinary trial errors we review for
harmlessness.
    ¶37 Mr. Reece cites State v. Spillers to support his assertion that
the failure to give a lesser-included-offense instruction is a structural
error. In that case, we held that a defendant convicted of first degree
murder was entitled to an instruction on extreme emotional distress
manslaughter.54 And we cited a Utah Court of Appeals case for the
proposition that ―‗failing to instruct on [a] lesser included offense
presumptively affects the outcome of the trial‘‖ when ―‗the evidence
is consistent with both the defendant‘s and the State‘s theory of the
case.‘‖55 That statement, standing alone, has an air of structural error
about it. But in Spillers, we devoted just one paragraph to harmless
error analysis and did not attempt to distinguish, nor purport to
overrule, other decisions that found harmless error in this context.56
And the court of appeals decision we cited in Spillers did not engage
the issue in any more depth or attempt to distinguish other court of
appeals precedent that applied traditional harmless error review.57
    ¶38 Furthermore, a survey of our own caselaw and our court of
appeals decisions reveals that both courts have consistently applied
harmless error analysis to a trial court‘s erroneous denial of lesser-
included-offense instructions. In State v. Evans, for example, we
concluded that ―the trial court erred in refusing to instruct the jury
on the lesser-included offense of attempted manslaughter.‖58 But we
explained that the error was harmless because the only evidence


   54   Id. ¶¶ 9, 20.
   55   Id. ¶ 24 (quoting State v. Knight, 2003 UT App 354, ¶ 17, 79 P.3d
969).
   56   Id.
   57   See Knight, 2003 UT App 354, ¶ 17.
   58   2001 UT 22, ¶ 20, 20 P.3d 888.

                                    17
                              STATE v. REECE
                          Opinion of the Court
supporting the instruction was the defendant‘s own self-serving
testimony, which conflicted with the accounts of numerous
eyewitnesses.59 Similarly, in State v. Payne, the court of appeals
concluded that there was ―a rational basis for a verdict acquitting
[the defendant] of lewdness involving a child and convicting him of
the lesser included offense of child abuse,‖60 but it determined that
the error was harmless.61 There the court observed that to convict the
defendant of the lesser offense and acquit him of the greater, ―the
jury would have to reject the credibility of [several] witnesses in
favor of mere inferences that are conceivable from the evidence but
are by no means compelled by it.‖62 These cases are not outliers—
Utah courts have consistently applied harmless error analysis in this
context for at least three decades.63
    ¶39 Not only has our caselaw never classified the failure to issue
a lesser-included-offense instruction as a structural error, but this
type of error also closely resembles others that we have always
reviewed for harmlessness. For example, errors in jury instructions
are routinely reviewed for harmless error,64 including instructions
that mischaracterize the culpable mental state required to sustain a



   59   Id. ¶¶ 21–23.
   60   964 P.2d 327, 334 (Utah Ct. App. 1998).
   61   Id. at 335
   62   Id.
   63 See, e.g., State v. Daniels, 2002 UT 2, ¶ 29, 40 P.3d 611; State v.
Piansiaksone, 954 P.2d 861, 871–72 (Utah 1998); State v. Pearson, 943
P.2d 1347, 1350–51 (Utah 1997); State v. Gotschall, 782 P.2d 459, 464
(Utah 1989), abrogated on other grounds by State v. Doporto, 935 P.2d
484, 489 (Utah 1997).
   64 See, e.g., Piansiaksone, 954 P.2d at 870–71 (concluding that jury
instructions that ―improperly mandated an order of deliberation and
deprived defendant of the right to have the jury consider his
‗defense‘ of manslaughter‖ were harmless errors); State v. Fontana,
680 P.2d 1042, 1048–49 (Utah 1984) (―Even if the instruction on
depraved indifference second degree murder had been in error, the
error was not prejudicial.‖); State v. Montague, 671 P.2d 187, 190
(Utah 1983) (―[A] criminal conviction is not reversed because of an
erroneous jury instruction unless the error is of such gravity that it
could cause substantial prejudice to defendant‘s rights.‖).

                                    18
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                            Opinion of the Court

conviction.65 Similarly, we have applied harmless-error review to
erroneous self-defense instructions66 and the complete failure to
instruct the jury on an affirmative defense.67 The analogy to
affirmative defense instructions is particularly apt because
defendants are entitled to such instructions if the evidence ―provides
any reasonable basis upon which a jury could conclude that the
affirmative defense applies to the defendant,‖68 a standard that
mirrors the rational basis test for lesser-included-offense
instructions.69 In reviewing these errors for harmlessness, we have
treated them as ―garden-variety trial errors‖ rather than
fundamental flaws that ―affect the very framework of the trial‖
itself.70 And beyond citing our statement in Spillers, Mr. Reece has
not identified any reason why the failure to give lesser-included-
offense instructions should be treated any differently. Accordingly,
we conclude that the failure to give a lesser-included-offense
instruction is not a structural error. To the extent language in Spillers
or Knight could be read to the contrary, we disavow it.
2. The trial court‘s failure to instruct the jury in Mr. Reece‘s case
   was harmless error
    ¶40 We now turn to the question of whether the trial court‘s
erroneous denial of Mr. Reece‘s requested lesser-included-offense
instructions ―affected the outcome of the proceedings.‖71 The trial


   65 Powell, 2007 UT 9, ¶¶ 19, 21–23 (holding that a jury instruction
that erroneously stated that the mens rea requirement for attempted
murder was ―knowing‖ or ―depraved indifference‖ was harmless
error because ―the uncontested evidence would allow the jury only
one reasonable conclusion: that [the defendant] intentionally
attempted to cause [the victim‘s] death‖).
   66   State v. Starks, 627 P.2d 88, 91–92 (Utah 1981).
   67 See State v. Cowan, 490 P.2d 890, 892 (Utah 1971) (concluding
that failing to give an entrapment instruction was harmless error);
State v. Cox, 751 P.2d 1152, 1154–55 (Utah Ct. App. 1988) (holding
that the failure to instruct the jury on a defense of implied consent in
an unlawful control of a vehicle was harmless error).
   68   State v. Low, 2008 UT 58, ¶ 25, 192 P.3d 867.
   69   See supra ¶ 22.
   70   See Cruz, 2005 UT 45, ¶ 17.
   71   State v. Evans, 2001 UT 22, ¶ 20, 20 P.3d 888.

                                      19
                            STATE v. REECE
                         Opinion of the Court
court‘s error is not harmful unless there is a reasonable likelihood
that the jury would have acquitted Mr. Reece of aggravated murder
and convicted him of an offense involving an unintentional killing.72
Because there was overwhelming evidence that Mr. Reece
intentionally killed the victim, we conclude that ―there is no
reasonable likelihood‖ that the jury would have acquitted Mr. Reece
of aggravated murder. Accordingly, our confidence in the verdict is
not undermined,73 and denying the requested instructions was
therefore harmless error.
    ¶41 First, the physical evidence conclusively linked Mr. Reece to
the crime scene—investigators found the victim‘s blood on
Mr. Reece‘s shirt, he admitted that he entered the victim‘s home, and
his attempt at providing an innocent explanation for this
incriminating evidence was, to put it mildly, implausible. In his
telling, Mr. Reece was a good Samaritan that stumbled into the
wrong place at the wrong time. He claims that he heard a gunshot,
looked into the victim‘s home, and saw a woman ―lying flat‖—a
woman he believed had just tried to kill herself. He then rushed
inside to assist the woman and got blood on his shirt while leaning
over her. But Mr. Reece also admitted that he was only near the
victim‘s home because he thought it was in ―a nice neighborhood
and [he] was going to check mailboxes in that neighborhood‖ to ―see
if [he] could get anything valuable.‖ On the night of the murder, the
evidence also showed that Mr. Reece entered three homes without
permission, violently assaulted one resident, and stole a package and
a money order from two other homeowners in the area. Essentially,
Mr. Reece asked the jury to believe that sometime during a crime
spree that spanned two hours and in which he committed multiple
felonies, he felt compelled to stop at the victim‘s home just to be a
good citizen. We find his story to be simply incredible.
    ¶42 Second, the evidence of an intentional murder overwhelmed
Cellmate‘s testimony that Mr. Reece accidentally shot the victim
during a brief struggle. According to investigators, all of the victim‘s
blood ―was concentrated in . . . one area right on the love seat‖
where they found her body, and the bullet that killed her was fired
at a ―downward trajectory‖ about one foot away from her head. The
victim had a black eye, cuts on her nose, loose teeth, and abrasions
on the side of her face ―consistent with [a] blunt force injury.‖ The
state medical examiner believed that the victim ―was struck by

   72   See id.
   73   Id.

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                           Opinion of the Court

something that was very hard with a lot of force.‖ These injuries,
along with cuts on the back of the victim‘s left hand, led the medical
examiner to conclude that the victim tried ―to cover [her] face with a
hand while she [was] being struck.‖ A weapons expert also testified
that the gun likely used to kill the victim can be discharged only if
―the trigger is pulled . . . to 90 percent engagement,‖ making it
highly unlikely that this ―type of gun . . . may accidentally go off.‖
And of course, Mr. Reece testified that Cellmate was lying,
repudiating the only piece of evidence that the murder was
accidental.
    ¶43 The physical evidence and the inherent implausibility of
Mr. Reece‘s testimony lead us to conclude that there was
overwhelming evidence that he killed the victim intentionally during
the course of a burglary. We therefore conclude that even if the trial
court had instructed the jury on lesser offenses involving
unintentional killings, ―there is no reasonable likelihood‖ that the
outcome of trial would have been any different, and the trial court‘s
failure to issue the instructions was harmless.74
            II. The Trial Court Appropriately Limited Voir Dire
    ¶44 Mr. Reece next argues that the trial court ―erred in refusing
to allow [him] to ask‖ prospective jurors questions he claims would
have allowed him to detect biases unfavorable to his case. Mr. Reece
submitted a proposed juror questionnaire with 193 questions. The
trial court refused to ask only twelve of them and modified a few
others. According to Mr. Reece, these limits ―substantially impaired‖
his ability to ―intelligently exercise his peremptory challenges.‖ The
State maintains that the totality of the questions asked and the
opportunity Mr. Reece had for individual follow-up questioning
with each prospective juror ―afforded Mr. Reece an adequate
opportunity to gain the information necessary to evaluate the
jurors.‖ We agree with the State.
   ¶45 The purpose of voir dire examination is ―both the detection
of actual bias . . . and the collection of data to permit informed
exercise of the peremptory challenge.‖75 Generally, ―trial courts
should be permissive in allowing voir dire questions and should
exercise their discretion in favor of allowing counsel to elicit


   74   See id.
   75State v. Piansiaksone, 954 P.2d 861, 867 (Utah 1998) (alteration in
original) (internal quotation marks omitted).

                                    21
                              STATE v. REECE
                          Opinion of the Court
information from prospective jurors.‖76 But trial courts have no
obligation ―to permit every question‖ that ―might disclose some basis
for counsel to favor or disfavor seating a particular juror.‖77 Nor do
defendants have a right ―to ask questions in a particular manner.‖78
Rather, courts have broad discretion to limit any question that bears
only a tangential relationship to jurors‘ potential biases or that
―unduly intrudes‖ into the jurors‘ private lives.79 A court‘s limits on
voir dire questioning are not an abuse of discretion when,
―considering the totality of the questioning, counsel was afforded an
adequate opportunity to gain the information necessary to evaluate
the jurors.‖80
    ¶46 Mr. Reece identifies five areas of concern that the court
prevented him from exploring effectively: (1) ―bias towards the
prosecution and . . . law enforcement,‖ (2) ―jurors‘ possible
upbringing and attitudes toward the criminal justice system,‖ (3)
attitudes derived from membership in ―social organizations,‖ (4)
―whether jurors would have been unsuitable for the defense based
on their connection to people employed in the legal community,‖
and (5) ―any negative assumptions about persons who have
substance abuse problems.‖ The totality of the questionnaire and Mr.
Reece‘s follow-up questions adequately covered each of these topics,
and the trial court acted well within its discretion by limiting or
excluding questions that it determined probed too deeply into the
jurors‘ private lives.
    ¶47 First, with respect to jurors‘ ―biases towards . . . law
enforcement‖ and ―attitudes toward the criminal justice system,‖
Mr. Reece complains that the court did not allow him to ask a
number of questions about the jurors‘ relationship with law
enforcement or security companies. In particular, Mr. Reece wanted
to ask each juror about specific positions he or she had held with a
law enforcement agency or a private security firm, whether a spouse

   76   Id. at 868.
   77   Id.
   78 Taylor v. State, 2007 UT 12, ¶ 70, 156 P.3d 739 (internal
quotation marks omitted).
   79 See Piansiaksone, 954 P.2d at 868; see also State v. Ball, 685 P.2d
1055, 1060 (Utah 1984) (―The criminal defendant‘s right to a fair trial
does not create a license in his defense counsel to conduct an
inquisition into the private beliefs and experiences of a venireman.‖).
   80   Taylor, 2007 UT 12, ¶ 70 (internal quotation marks omitted).

                                    22
                        Cite as: 2015 UT 45
                        Opinion of the Court

or child worked for a similar entity, and where each juror was born.
Instead, Mr. Reece argues that the court improperly limited his
questions to the jurors‘ and their spouses‘ general occupations
without requiring them to report specific employers.81
    ¶48 But Mr. Reece‘s argument ignores a number of questions the
court permitted that were directly related to the jurors‘ attitudes
towards law enforcement and the justice system. For example,
questions 48 through 62 required jurors to report whether they or
someone close to them had ever been arrested or charged with a
crime, and whether that experience had generated any negative
feelings toward the justice system. Questions 63 through 78 asked
whether the juror or family members had been the victim of a crime,
and if so, how it affected their feelings toward the justice system.
Mr. Reece was also allowed to ask how jurors felt about defense
attorneys and prosecutors, whether jurors believed police officers
were more credible than other potential witnesses, and whether they
felt that the justice system is generally too hard or too soft on
criminals. Moreover, the trial court permitted Mr. Reece to ask
individual follow-up questions with each prospective juror, and the
record shows that he elicited even more information that allowed
him to assess jurors‘ attitudes about the criminal justice system and
biases towards law enforcement.82
   ¶49 Second, even though the trial court allowed questions
requiring jurors to disclose their membership in any social
organizations, Mr. Reece contends that the court improperly
excluded a question that would have required jurors to list any
positions they had held within those organizations. According to
Mr. Reece, ―[i]nformation about positions can provide insight about
the level of involvement in and commitment to the organization.‖
That may be true, but the court allowed several other questions that,
coupled with individual follow-up questioning, adequately


   81 The trial court permitted Mr. Reece to inquire about each
juror‘s birthplace.
   82 For example, Mr. Reece questioned one potential juror who
indicated on his questionnaire that defense attorneys ―serve a noble
cause but at times‖ he ―question[s] their ethics.‖ Mr. Reece was able
to determine that the juror had no ―similar concerns about the ethics
of prosecutors‖ and that his parents taught him that ―you can trust a
police officer‖ because they are generally ―good people.‖ The record
is replete with similar examples.

                                 23
                            STATE v. REECE
                         Opinion of the Court
addressed potential biases and attitudes derived from membership
in a particular social or political group. Question 125 asked jurors
whether they felt their decision in the case ―might be criticized by
your family, your friends, your church or church members, or
others,‖ and if so, ―would such criticism be of concern to you?‖
Additionally, Mr. Reece asked jurors to describe their political views,
whether they were involved in any groups organized to make
changes to the justice system, and he was also permitted to follow up
individually on any answers to these questions that raised a concern.
    ¶50 Third, Mr. Reece asked whether each juror or the juror‘s
―sibling, spouse, children, [or] parents‖ had ―ever worked for an
attorney,‖ but the court did not permit him to require jurors to
identify the family member‘s name, the juror‘s relationship to that
person, the attorney‘s name, or the name and location of the law firm
or government agency that employed the attorney.‖ Mr. Reece
maintains that striking these questions prevented him from
determining ―whether jurors would have been unsuitable for the
defense based on their connection to people employed in the legal
community.‖ But the record indicates that Mr. Reece was able to
elicit much of this information in follow-up questions with
individual jurors. For example, Mr. Reece‘s trial counsel asked
individual follow-up questions of one juror who indicated on her
questionnaire that she ―had family and friends that work with
attorneys.‖ The juror said she had ―a daughter who is an attorney,‖
counsel asked ―what kind of attorney is she,‖ and the juror said her
daughter worked ―for LexisNexis and just teaches at colleges.‖ A
second juror indicated that his father ―was a criminal lawyer, . . . a
defense attorney‖ in response to a follow-up question, and Mr. Reece
learned that a third juror had a ―father-in-law [who] does water
rights.‖ There is no indication in the record that the court limited Mr.
Reece‘s follow-up questioning in a way that prevented him from
determining whether the jurors had relationships with people in the
legal community that would lead them to favor the defense or the
prosecution.
    ¶51 Finally, Mr. Reece argues that the trial court should have
allowed him to ask whether each juror, or ―any close friend or family
member, had a substance abuse problem. If so, who was the person,
when did the problem occur, and what substance was it?‖ Instead,
the court asked each juror whether the fact that a witness used drugs
would ―impact your ability to be fully impartial and fair.‖ Only one
juror answered that question affirmatively, and the court eventually
dismissed her for health reasons. Mr. Reece cites our decision in State


                                  24
                           Cite as: 2015 UT 45
                           Opinion of the Court

v. Saunders83 for the proposition that it is reversible error for a trial
court to allow jurors to essentially self-report their own biases—that
is, to simply ask whether a particular factor would impair the juror‘s
objectivity and then take their ―answer as dispositive of the issue of
bias.‖ We conclude that Saunders is distinguishable from the
circumstances in Mr. Reece‘s case and that the trial court did not
abuse its discretion in limiting questions about substance abuse.
    ¶52 In Saunders, we reversed a trial court‘s decision refusing
defense counsel‘s request to ask follow-up questions of several
potential jurors ―who stated they had specialized knowledge
concerning child sexual abuse from their educational background
and one juror who was actively supporting an anti-child-abuse
organization.‖84 We expressed disapproval of ―the all too prevalent
practice of avoiding any real inquiry into possible bias‖ by simply
asking prospective jurors if they ―could decide the case fairly and
follow the law . . . then taking a prospective juror‘s affirmative
answer as dispositive of the issue of bias.‖85 Because the jurors‘
―answers provide[d] evidence of possible bias‖ about child sex
abuse, we concluded that a juror‘s ―conclusory statement that he or
she will . . . decide the case fairly‖86 was simply insufficient and that
the court abused its discretion ―in refusing to allow a further probing
of the jurors‘ attitudes toward child sexual abuse.‖87 In doing so, we
noted that there was ―little objective evidence‖ of the defendant‘s
guilt and the jurors ―therefore had to rely on a subjective evaluation
of the witnesses‘ credibility that would be strongly influenced by the
jurors‘ own experiences and points of view and the possible biases
that arose from them.‖88
   ¶53 Here, although we acknowledge the court could have
crafted a more effective question to probe the jurors‘ attitudes about
substance abuse, the circumstances differ in important respects from
those in Saunders. To begin with, the bias Mr. Reece identifies is not
directly related to the offenses for which he was convicted. Saunders
involved multiple sex offenses committed against a small child, and

   83   1999 UT 59, ¶ 34, 992 P.2d 951.
   84   Id. ¶¶ 38–39.
   85   Id. ¶ 34.
   86   Id. ¶ 36.
   87   Id. ¶ 47.
   88   Id. ¶ 37.

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                            Opinion of the Court
several jurors revealed information during voir dire that fairly called
into question their ability to remain impartial due to the nature of
the offenses.89 Mr. Reece, by contrast, was not charged with any drug
offenses, and there were witnesses for both the prosecution and the
defense who admitted to having substance abuse problems.
Consequently, a bias against drug users would not necessarily have
predisposed a juror to find against Mr. Reece. Moreover, unlike the
defendant in Saunders, Mr. Reece was permitted to ask follow-up
questions of each individual juror without any restrictions.90
Mr. Reece has not identified any instances in which the trial court
prevented him from asking a specific follow-up question, and our
own review of the record indicates that the judge gave him wide
latitude in questioning each individual juror.91
    ¶54 Furthermore, asking jurors to disclose their own personal
history with substance abuse—including any family member‘s drug
use—is deeply personal. As we have noted, judges have ―broad
discretionary power to conduct voir dire‖ and have ―a duty to
protect juror privacy.‖92 Judges therefore do not abuse their
discretion when they take steps to assure that any line of questioning
is ―pursued with a sensitivity to the privacy of the potential juror‖93
so long as ―the totality of the questioning‖ affords counsel with ―an
adequate opportunity to gain information necessary to evaluate the
jurors.‖94 Of course, protecting the jurors‘ privacy becomes a less
compelling reason to limit voir dire questioning when a potential
bias is strongly related to elements of the charged offense or other

   89   Id. ¶¶ 4, 38.
   90   See id. ¶¶ 38–39.
   91  We also note that Mr. Reece‘s follow-up questions actually
elicited information about jurors‘ attitudes towards substance abuse.
For example, in questioning one juror who indicated on her
questionnaire that a relative had been charged with a crime, Mr.
Reece was able to learn that the relative was convicted of a drug
offense. Mr. Reece‘s counsel specifically asked if there was ―anything
about your brother-in-law‘s situation that somehow is going to
influence your ability‖ to objectively evaluate witness‘s testimony,
and the juror said no.
   92   State v. Ball, 685 P.2d 1055, 1060 (Utah 1984).
   93   Id.
   94 Piansiaksone, 954 P.2d         at 868 (internal quotation marks
omitted).

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important issues in the case. But as we have explained, that is not the
case here. Consequently, due to the highly personal nature of this
particular question, the wide latitude the judge provided for
individual follow-up questioning, and the attenuated relationship
between the alleged bias and the ultimate issues in the case, we
cannot say that the trial court abused its discretion in this instance.
   ¶55 In summary, the trial court allowed Mr. Reece to ask the
vast majority of the 193 questions in his proposed juror
questionnaire. Those questions, along with those the court modified
and the unlimited individual follow-up questioning, demonstrate
that Mr. Reece had every opportunity to uncover the information he
needed to identify juror biases and intelligently exercise his
peremptory challenges. Far from placing unreasonable limits on the
scope of voir dire, the trial court was fair and accommodating and
appropriately exercised its discretion to protect the jurors‘ privacy
without inhibiting Mr. Reece‘s ability to meaningfully evaluate the
prospective jurors.
                     III. The Trial Court Properly Admitted the
                             State‘s Rule 404(b) Evidence
    ¶56 Mr. Reece also argues that rule 404(b) of the Utah Rules of
Evidence should have barred the admission of evidence that police
found a stolen assault rifle in his car when they arrested him. And he
contends that the court should have excluded certain details of the
traffic stop and arrest that led to the weapon‘s recovery. Specifically,
police thought they saw Mr. Reece reach for a handgun under his
seat, and after he was ordered out of the car, Mr. Reece ran and had
to be subdued by a taser. Rule 404(b) prohibits the admission of
evidence of a defendant‘s ―crime, wrong, or other act . . . to prove
[the defendant‘s] character in order to show on a particular occasion
the [defendant] acted in conformity with the character.‖95 Mr. Reece
contends that the ―true purpose‖ of the stolen rifle evidence was ―to
suggest that Mr. Reece was a dangerous person who acted in
conformity with [his] alleged bad character.‖
    ¶57 Rule 404(b) allows evidence of prior bad acts for
noncharacter purposes, ―such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.‖96 But the evidence ―must clear several evidentiary


   95   UTAH R. EVID. 404(b)(1).
   96   Id. 404(b)(2).

                                     27
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                           Opinion of the Court
hurdles before admission—rules 404(b), 402, and 403.‖97 These
requirements can be distilled into a three-part test: the prior bad-act
evidence (1) must be ―offered for a genuine, noncharacter purpose,‖
(2) ―must be relevant‖ to that noncharacter purpose, and (3) the
―probative value of the evidence must not be substantially
outweighed by the danger of unfair prejudice.‖98 Additionally, as we
recently clarified in State v. Lucero, ―matters of conditional relevance
must also meet the preponderance of the evidence standard under‖
rule 104(b).99 We conclude that the stolen rifle evidence meets each of
these requirements.
    A. The Evidence Was Offered For a Genuine Noncharacter Purpose
    ¶58 Evidence that Mr. Reece had a stolen assault rifle was
offered for the noncharacter purpose of identifying Mr. Reece as the
murderer by showing that he had access to the type of gun
investigators determined was likely the murder weapon. A State
firearms expert matched the broken guide rod found in the victim‘s
home to a 9 mm Beretta 90-Two handgun, and the owner of the
stolen rifle testified that the weapon was stolen with a Beretta 90-
Two from his truck in January 2010. Mr. Reece testified at trial that
he did not have a gun the day of the murder and that he saw
someone else in the victim‘s home with a gun right after she was
killed. He also testified that he did not own a Beretta handgun and
claimed that Friend was lying when she testified that she saw him
cleaning a Beretta the day before the murder. In other words, Mr.
Reece claimed that he could not have committed the murder because
he did not even have access to a Beretta when the victim was killed.
Because police never recovered the murder weapon, there was no
physical evidence to rebut that claim. Consequently, the central issue
at trial was the identity of the killer. And evidence linking Mr. Reece
to a Beretta undermined his assertion that someone else killed the
victim by showing that, contrary to his trial testimony, Mr. Reece
had access to the type of gun that investigators had identified as the
likely murder weapon. The stolen rifle evidence was therefore
offered for the genuine noncharacter purpose of establishing Mr.
Reece‘s identity as the murderer.
   ¶59 Mr. Reece maintains that even if the evidence was offered to
prove his identity as the murderer, ―[t]o qualify as identity evidence,

   97   State v. Lucero, 2014 UT 15, ¶ 13, 328 P.3d 841.
   98   Id.
   99   Id.

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. . . the link between the evidence and the charged offense must be so
unique as to constitute a signature.‖ He cites a number of cases
where courts admitted evidence of a defendant‘s prior crimes under
rule 404(b) because the prior crimes bore ―numerous . . . signature-
like similarities‖ with the charged offense. Mr. Reece‘s argument is
inconsistent, however, with the plain language of rule 404(b) and our
caselaw.
    ¶60 It is true that cases where rule 404(b) evidence is offered to
prove identity often involve signature crimes.100 But the language of
rule 404(b) does not limit identity evidence in such a manner and
neither does our caselaw. Rule 404(b)(2) provides that evidence of
prior bad acts ―may be admissible‖ to prove ―motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.‖101 We have recognized that the permissible uses of
bad-acts evidence listed in rule 404(b) is illustrative, ―not
exhaustive,‖ and ―evidence demonstrating other purposes is not
precluded so long as the evidence is offered for a legitimate purpose
other than to show the defendant‘s propensity to commit the crime
charged.‖102 We see no reason why the language of the rule requires
the exclusion of evidence that, though probative of identity, does not
involve a signature crime.
    ¶61 Our caselaw is also inconsistent with such a limitation. In
State v. Shaffer, we affirmed a trial court‘s decision in a murder trial
to admit evidence that the defendant stole a wallet.103 We noted that
after the wallet was stolen, the owner‘s identification was used to


   100 See, e.g., State v. Decorso, 1999 UT 57, ¶¶ 27, 31, 993 P.2d 837
(admitting evidence that the defendant burglarized a shoe store in
West Jordan because there ―were numerous similarities between the
crimes committed at‖ that store and another store in Draper,
―suggesting that the same person committed both crimes‖); State v.
Webster, 2001 UT App 238, ¶ 35, 32 P.3d 976 (concluding that
evidence that a defendant stole a car in another state was
inadmissible because ―[t]he only similarities apparent on the record
between the two incidents are that (1) a car was stolen (2) from a
dealership lot‖ and this ―pair of facts is not sufficiently unique as to
constitute a signature‖ (internal quotation marks omitted)).
   101   UTAH R. EVID. 404(b)(2).
   102   State v. Allen, 2005 UT 11, ¶ 17, 108 P.3d 730.
   103   State v. Shaffer, 725 P.2d 1301, 1308 (Utah 1986).

                                      29
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                          Opinion of the Court
obtain a gun permit and purchase a .38 caliber weapon that was used
to kill the victim.104 Because the ―theft of [the] identification
provided the first link in the chain of evidence that connected the .38
caliber weapon . . . with the defendant and the [victim‘s] death,‖ we
concluded that the theft was ―relevant to establishing the identity of
the defendant as the person in possession‖ of the murder weapon.105
    ¶62 Similarly, in Salt Lake City v. Alires, the Utah Court of
Appeals determined that a trial court properly admitted evidence
that the defendant had tried to break into the victim‘s home in a
prosecution for telephone harassment.106 The police had responded
to a 911 call and found the defendant ―banging on a window‖ at the
back of the victim‘s apartment.107 The defendant told the police that
he lived in the apartment and was trying to get in to see his
girlfriend and baby.108 After confirming that the defendant did not
live there and that the victim did not want to see him, the police
asked him to leave.109 One hour later, someone called the victim,
asked her why she had called the police, and threatened to kill her
daughter if she did not let him see her.110 Even though the attempted
break-in did not involve ―a common plan or scheme‖111 similar to
the threatening phone call, the court of appeals concluded that the
incident was admissible as identity evidence under rule 404(b)
because ―the facts clearly link the two incidents and tend to identify
[the] defendant as the caller.‖112
    ¶63 These cases demonstrate that evidence of a prior crime
offered to identify a defendant need not bear ―signature-like‖
similarities with the charged offense to be admissible under rule
404(b). Rather, any evidence that is probative of identity for reasons
other than establishing a propensity for criminal activity may be
admitted under the rule, provided of course that it also clears other

   104   Id.
   105   Id.
   106   2000 UT App 244, ¶¶ 2–6, 12–13, 9 P.3d 769.
   107   Id. ¶ 2.
   108   Id.
   109   Id.
   110   Id. ¶¶ 3–4.
   111   Id. ¶ 13.
   112   Id.

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pertinent evidentiary hurdles.113 And here, as we have discussed, the
stolen rifle evidence was offered for just such a purpose.
    B. The Evidence is Relevant to Identify Mr. Reece as the Murderer
    ¶64 Having concluded that the stolen rifle evidence was offered
for the noncharacter purpose of identifying Mr. Reece as the
murderer, we now examine whether the evidence is relevant to that
purpose. ―Evidence is relevant if: (a) it has any tendency to make a
fact more or less probable than it would without the evidence; and
(b) the fact is of consequence in determining the action.‖114 This is
not a particularly high bar to clear—we have previously stated that
any ―[e]vidence that has even the slightest probative value‖ is
relevant under the rules of evidence.115 But that is not the entire
inquiry—when the relevancy of a prior crime or bad act hinges on
―whether a fact exists,‖116 the prior act is only admissible if the trial
court determines that ―the jury could reasonably find‖ that factual
condition fulfilled ―by a preponderance of the evidence.‖117
   ¶65 Here, Mr. Reece‘s access to a 90-Two Beretta has no bearing
on the identity of the murderer unless such a weapon was actually
used to kill the victim. The relevancy issue in this case therefore
presents us with two questions: (1) Does possession of the stolen rifle

   113 Other courts have reached the same conclusion. See, e.g., United
States v. Treff, 924 F.2d 975, 981–82 (10th Cir. 1991) (concluding that
evidence that the defendant killed his wife and fled with his children
was relevant to establish the defendant‘s identity as the arsonist of
another home); State v. Gillispie, 26 A.3d 397, 413 (N.J. 2011) (noting
that rule 404(b) ―is not so narrow with respect to proof of identity‖ to
preclude evidence that the defendant had used the murder weapon
in a subsequent crime from admission in his murder trial even
though the later crime was not similar in any way to the murder);
State v. Suttle, 812 P.2d 119, 124 n.10 (Wash. Ct. App. 1991) (noting
that ―prior bad acts evidence may be admitted under [rule] 404(b)
when that evidence is probative of identity for other reasons, and its
admissibility is not limited to signature crimes‖ (internal quotation
marks omitted)).
   114   UTAH R. EVID. 401.
   115 State v. Jaeger, 1999 UT 1, ¶ 12, 973 P.2d 404 (alteration in
original) (internal quotation marks omitted).
   116   UTAH R. EVID. 104(b).
   117   Lucero, 2014 UT 15, ¶ 19 (internal quotation marks omitted).

                                      31
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                          Opinion of the Court
make it more likely that Mr. Reece possessed a Beretta 90-Two
handgun the day of the murder? (2) Could a reasonable jury have
found by a preponderance of the evidence that the murder weapon
was in fact a Beretta 90-Two? We consider each question in turn and
conclude that the stolen rifle evidence was relevant to establishing
Mr. Reece‘s identity as the murderer.
    ¶66 First, Mr. Reece‘s possession of the stolen rifle has at least
some ―tendency‖ to make it more probable that he had access to a
Beretta 90-Two handgun. Investigators testified that the serial
number of the stolen rifle found in Mr. Reece‘s car matched a
weapon that was stolen in Park City six months before the murder.
And the rifle‘s owner testified that it was stolen along with ―a
Beretta 90-Two 9 mm pistol.‖ It is certainly possible, as Mr. Reece
points out, that he purchased the stolen rifle from someone else and
that the Beretta found its way to another black-market purchaser.
But Mr. Reece‘s possession of the stolen rifle also raises a nontrivial
possibility that he stole both weapons himself or purchased them at
the same time from the person who did. Even if the probability of
either scenario is somewhat remote, evidence that ―has any
tendency‖ to make a fact of consequence more or less probable is
relevant and admissible.118
    ¶67 Second, there is enough evidence in the record to justify a
jury finding by a preponderance of the evidence that the murder
weapon was in fact a 9 mm Beretta 90-Two. Mr. Reece admitted that
he owned a Beretta six months before the murder occurred, another
witness testified that she saw Mr. Reece cleaning a Beretta the day
before the murder, and the victim‘s blood was found on Mr. Reece‘s
shirt. Additionally, the police found a 9 mm shell casing at the crime
scene, a firearms expert testified that the broken guide rod police
recovered is ―a patented piece that‘s used exclusively by Beretta,‖
and the expert also testified that the broken guide rod ―matched the
one‖ used in a Beretta 90-Two.
    ¶68 Mr. Reece argues that ―the State‘s proof was far from
conclusive.‖ He points out that the State‘s expert ―conceded that at
least two other Berettas—the 92A1 and the 96A1—use the same
guide rod.‖ But the expert also testified that the 96A1 was a .40
caliber weapon, not a 9 mm. The expert testimony and the physical
evidence therefore indicated that the murder weapon was either a 9
mm Beretta 90-Two or a 92A1, and the expert affirmatively matched
the guide rod to the 90-Two model. A jury could therefore find by a

   118   UTAH R. EVID. 401, 402 (emphasis added).

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preponderance of the evidence that the murder weapon was a
Beretta 90-Two. And because it would not be unreasonable for the
jury to reach such a conclusion, evidence linking Mr. Reece to a
Beretta 90-Two is relevant to the noncharacter purpose of identifying
him as the murderer.
                C. The Evidence Was Not Unfairly Prejudicial
    ¶69 ―[T]he final hurdle that prior bad acts evidence must
overcome‖ is rule 403,119 which provides that courts ―may exclude
relevant evidence if its probative value is substantially outweighed
by a danger of . . . unfair prejudice.‖120 And ―unfair prejudice results
only where the evidence has an undue tendency to suggest decision
upon an improper basis.‖121 Weighing the probative value and
potentially unfair prejudicial effect of evidence involves a variety of
considerations, including the factors we identified in State v.
Shickles.122 These factors are
         the strength of the evidence as to the commission of the
         other crime, the similarities between the crimes, the
         interval of time that has elapsed between the crimes,
         the need for the evidence, the efficacy of alternative
         proof, and the degree to which the evidence probably
         will rouse the jury to overmastering hostility.123
We recently clarified that ―while some of these factors may be
helpful in assessing the probative value of the evidence in one
context, they may not be helpful in another.‖124 So it is ―unnecessary
for courts to evaluate each and every factor and balance them
together in making their assessment.‖125 Accordingly, in determining
the admissibility of the stolen rifle evidence under rule 403, we focus
our analysis on the text of rule 403 and analyze only those Shickles
factors that are relevant to the circumstances of Mr. Reece‘s case. We


   119   Lucero, 2014 UT 15, ¶ 30.
   120   UTAH R. EVID. 403.
   121   Lucero, 2014 UT 15, ¶ 32 (internal quotation marks omitted).
   122 760 P.2d 291, 295–96 (Utah 1988), abrogated on other grounds by
State v. Doporto, 935 P.2d 484 (Utah 1997).
   123   Id. (internal quotation marks omitted).
   124   Lucero, 2014 UT 15, ¶ 32.
   125   Id.

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                           Opinion of the Court
conclude that the probative value of the evidence was not
substantially outweighed by the potential for unfair prejudice.
    ¶70 The probative value of the stolen rifle was perhaps not
strong, but it was also not insubstantial. The police never recovered
the murder weapon, and Mr. Reece testified at trial that he did not
have a gun the day of the murder. He also claimed that he had
gotten rid of the only Beretta he ever owned in early 2010 and that
someone else committed the murder. So even though the State had
DNA evidence that conclusively linked Mr. Reece to the crime, it
also needed the stolen rifle evidence to effectively rebut Mr. Reece‘s
claim that he did not have access to the type of weapon used to kill
the victim. Of course, there was no evidence that Mr. Reece himself
stole the rifle or that he purchased the rifle with a stolen Beretta, so
the link between Mr. Reece‘s possession of the stolen rifle and access
to the murder weapon was somewhat attenuated. Additionally, the
State‘s expert left open the possibility that the murder weapon was a
Beretta 92A-1, not a 90-Two.126
    ¶71 But even though the evidence‘s probative value was not
overwhelming, the potential for unfair prejudice is quite low
considering the other unlawful behavior Mr. Reece admitted to on
the witness stand. He testified that he was in the victim‘s
neighborhood stealing mail after several days of heavy drug use. He
admitted that he entered several homes without permission and
violently assaulted one of the residents he encountered without
provocation. And he also told the jury that during his crime spree, he
hit another car, sped off, and had to be tackled by several neighbors
before police arrived. The fact that Mr. Reece also had a stolen rifle in
his car, fled the police, and had to be subdued by a taser certainly
did not cast him in a positive light, but considering the variety and
severity of the criminal conduct Mr. Reece admitted to at trial, it
simply would not have roused the jury ―to overmastering
hostility.‖127
    ¶72 In summary, we conclude that the stolen rifle evidence was
not improperly admitted under rule 404(b). The evidence was
offered for the genuine noncharacter purpose of identifying
Mr. Reece as the murderer by showing he had access to the type of
gun investigators believed to be the murder weapon. And the fact
that the rifle in his possession was stolen with a 90-Two Beretta has


   126   Supra ¶ 68.
   127   See Lucero, 2014 UT 15, ¶ 33.

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at least some tendency to show that Mr. Reece had access to that type
of weapon. Additionally, the State presented enough evidence to
justify a jury finding by a preponderance of the evidence that the
murder weapon was in fact a 90-Two Beretta. Finally, the potential
for unfair prejudice did not substantially outweigh the evidence‘s
probative value in light of the criminal conduct that Mr. Reece freely
admitted to in front of the jury.
           IV. The Trial Court Did Not Abuse its Discretion by
                       Denying the Motion to Sever
     ¶73 Mr. Reece next argues that the trial court erred by refusing
to sever the third count in the indictment—possession of a firearm
by a restricted person—from the other charges. Utah Code section
77-8a-1(4)(a) provides that a ―court shall order an election of separate
trials of separate counts‖ if the court determines that ―a defendant
. . . is prejudiced by a joinder of offenses.‖ ―The burden of
demonstrating prejudice is a difficult one, and the ruling of the trial
judge will rarely be disturbed upon review. The defendant must
show something more than the fact that a separate trial might offer
him a better chance of acquittal.‖128
    ¶74 Here, instead of completely severing the weapons charge,
the court elected to bifurcate it, instructing the jury to determine if
Mr. Reece intentionally possessed a firearm on July 13. The jury
found beyond a reasonable doubt that Mr. Reece possessed a
weapon, and then in a separate proceeding before the judge,129 the
State introduced evidence of Mr. Reece‘s prior felony conviction.
Mr. Reece argues that the court‘s decision ―did not comply with the
rules of evidence or [his] constitutional right to due process and a
fair trial‖ because the jury was ―encouraged . . . to speculate about
what circumstances made . . . possession‖ of the firearm ―illegal.‖ In
support, he cites State v. Saunders130 and State v. Long131 for the
proposition that severance is always required on a possession by a

   128 State v. Smith, 927 P.2d 649, 654 (Utah Ct. App. 1996) (internal
quotation marks omitted); see also State v. Benson, 2014 UT App 92,
¶ 16, 325 P.3d 855.
   129Mr. Reece waived his right to a jury trial on the restricted
person element of the weapons charge.
   130699 P.2d 738 (Utah 1985), abrogated on other grounds by State v.
Doporto, 935 P.2d 484 (Utah 1997).
   131   721 P.2d 483 (Utah 1986).

                                     35
                               STATE v. REECE
                            Opinion of the Court
restricted person charge when evidence of the defendant‘s legal
disability ―would have been inadmissible at a separate trial‖ on the
other charges. We conclude that refusing to sever the weapons
offense was not an abuse of discretion.
    ¶75 In Saunders, the jury was presented with evidence that the
defendant was a convicted felon in a trial for possession of a weapon
by a restricted person, burglary, and theft.132 We reversed his
convictions because evidence of the prior conviction ―permit[ted] the
jury to consider evidence of [the] defendant‘s prior crime as the basis
for an inference that he committed the burglary and theft.‖133 And in
Long, we noted that the ―refusal to sever the possession of a
dangerous weapon charge from the remaining charges was an abuse
of discretion because of the unwarranted prejudice inherent in
informing the jury that a defendant is a convicted felon.‖134 The
jurors in Mr. Reece‘s case, by contrast, never saw evidence of
Mr. Reece‘s prior criminal history. Rather, the court instructed the
jury that it is ―unlawful under certain circumstances for a person to
purchase, transfer, possess, use, or have under his control or custody
a firearm.‖ The jurors may have wondered what ―circumstances‖
made Mr. Reece‘s possession of a firearm illegal, and some of them
may have speculated that Mr. Reece had a prior criminal history. But
it is equally plausible that the jurors believed that the possession
instruction related to the other charges—for instance, committing
burglary with a dangerous weapon is a different offense than simple
burglary. Mr. Reece has therefore failed to meet his heavy burden of
demonstrating that the court abused its discretion by refusing to
sever the weapons charge.
       V. The Aggravated Murder Sentencing Statute is Not
    Unconstitutional, but Mr. Reece is Entitled to a New Hearing
   ¶76 Finally, Mr. Reece argues in the alternative that the
noncapital aggravated murder sentencing statute is unconstitutional.
Because his arguments mirror those we recently rejected in State v.
Perea,135 we conclude that the statute is constitutional. Mr. Reece also
argues that the trial court abused its discretion when it sentenced
him to life without parole (LWOP) because it incorrectly interpreted
the sentencing statute as imposing a presumptive LWOP sentence.

   132   699 P.2d at 740–41.
   133   Id. at 741.
   134   721 P.2d at 495.
   135   2013 UT 68, ¶¶ 110–25, 322 P.3d 624.

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Although there is some evidence that the court properly weighed the
pertinent sentencing factors, we remand for a limited hearing to
determine whether, and if so, how the court‘s erroneous
interpretation of the statute affected the decision to impose an
LWOP sentence.
                  A. The Sentencing Statute is Constitutional
    ¶77 The aggravated murder sentencing statute provides that a
sentence of first degree felony aggravated murder ―shall be life in
prison without parole or an indeterminate prison term of not less
than 25 years and which may be for life.‖136 Mr. Reece contends that
the sentencing statute is unconstitutional for three reasons: (1) the
statute ―is unconstitutionally vague because, unlike Utah‘s other
LWOP statutes, it provides no guidance for when to impose LWOP‖;
(2) the statute violates Utah‘s constitutional guarantee ―that the
operation of the law be uniform‖; and (3) the statute violates the
―federal and state constitutions‘ guarantee that cruel and unusual
punishments shall not be inflicted‖ as well as Utah‘s ―unnecessary
rigor‖ clause. We rejected each of these arguments in State v. Perea,
and we reject them again here.
    ¶78 In Perea, the defendant argued that the aggravated murder
sentencing statute was ―unconstitutionally vague,‖137 because ―it
does not specify the particular items the sentencing court must
consider in deciding which of the two possible sentences to
impose.‖138 We concluded that the statute is constitutional. We
observed that the statute must be read in the context of other
provisions mandating that the criminal code ―shall be construed . . .
[to p]revent arbitrary and oppressive treatment‖ and to impose
―penalties which are proportionate to the seriousness of offenses.‖139
Consequently, we concluded that before a sentencing court imposes
an LWOP sentence, it must ―consider all the evidence before it—the
totality of the circumstances—[and impose] a sentence that is
proportionate to the crime and the culpability of the defendant.‖140
Mr. Reece‘s vagueness challenge is no different than the argument
we rejected in Perea—he maintains that the statute is

   136   UTAH CODE § 76-3-207.7(2).
   137   2013 UT 68, ¶ 110.
   138   Id. ¶ 115.
   139   Id. (alterations in original) (internal quotation marks omitted).
   140   Id.

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                        Opinion of the Court
unconstitutional because it ―provides no guidance on when to
impose‖ LWOP instead of a sentence of twenty-five years to life in
prison. Accordingly, we reject the vagueness challenge on stare
decisis grounds.
    ¶79 Our decision in Perea also rejected the defendant‘s argument
that the sentencing statute ―violates the uniform operation of laws
provision of the Utah Constitution.‖141 We observed that ―[n]ot all
those found guilty of aggravated murder are similarly situated‖
because ―each case and each defendant presents a different set of
facts and a different combination of aggravating and mitigating
factors.‖142 And ―because the discretion given to district courts‖ to
weigh those factors ―furthers the legitimate legislative purpose of
sentencing offenders based on the severity of their particular
circumstances,‖ we concluded that the sentencing statute ―does not
violate [the] uniform operation of laws provision.‖143 Mr. Reece
similarly argues that the sentencing statute runs afoul of the uniform
operation of laws provision ―because it divides a class of similarly
situated offenders into two subclasses who will receive disparate
treatment but defines no reasonable objective with which to
differentiate the subclasses.‖ Our analysis in Perea speaks directly to
that issue, and we see no reason to revisit it.
    ¶80 Finally, the defendant in Perea also unsuccessfully
challenged the sentencing statute under the unnecessary rigor
provision of the Utah Constitution and the cruel and unusual
punishment provision of the United States Constitution. We rejected
the unnecessary rigor challenge because that provision ―applies only
to the conditions of one‘s confinement and does not speak to the
proportionality of the particular sentence imposed,‖ so the provision
was ―not implicated by the imposition of‖ an LWOP sentence.144
And we determined that the cruel and unusual punishment
challenge was meritless because the defendant was an adult, did not
face the death penalty, and did not commit a non-homicide crime, so
none of the United States Supreme Court precedent the defendant
cited demonstrated that an LWOP sentence violated the Eighth




   141   Id. ¶ 121.
   142   Id. ¶ 123.
   143   Id.
   144   Id. ¶ 124.

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                            Opinion of the Court

Amendment.145 Here, Mr. Reece argues that the sentencing statute
violates the Eighth and Fourteenth Amendments of the federal
constitution because ―the statute leaves the LWOP decision to the
unfettered discretion of the judge, thereby allowing LWOP to be
imposed in an arbitrary and capricious manner.‖ But like the
defendant in Perea, Mr. Reece cites only to death-penalty cases, and
he does not identify any compelling factual circumstances that make
LWOP an excessively harsh sentence in this case. Thus, just as with
Mr. Reece‘s other constitutional challenges, Perea is directly on point,
and Mr. Reece has not raised any compelling reason why we should
revisit any of our conclusions in that case. Accordingly, we conclude
that the aggravated murder sentencing statute is constitutional.
         B. We Remand for the Court to Determine Whether, and if so,
           How Its Incorrect Reading of the Sentencing Statute Affected
                           Its Sentencing Decision
    ¶81 Mr. Reece maintains that even if the sentencing statute is
constitutional, the court abused its discretion in sentencing him to
LWOP because its decision resulted from ―the incorrect belief that
LWOP was the presumptive sentence‖ and because the court based
its decision on ―irrelevant and unreliable information‖ without
considering Mr. Reece‘s potential for rehabilitation. ―We afford the
trial court wide latitude in sentencing and, generally, will reverse a
trial court‘s sentencing decision only if it is an abuse of the judge‘s
discretion.‖146 Additionally, we have held that the due process clause
of the Utah Constitution ―requires that a sentencing judge act on
reasonably reliable and relevant information in exercising discretion
in fixing a sentence.‖147
   ¶82 Our review of the court‘s post-sentence ruling on
Mr. Reece‘s constitutional challenges confirms that the court


   145 Id. ¶ 125 (citing Roper v. Simmons, 543 U.S. 551, 574 (2005)
(holding that juveniles cannot be sentenced to death); Graham v.
Florida, 560 U.S. 48, 75 (2010) (concluding that the Eighth
Amendment prohibits an LWOP sentence for juvenile defendants
who did not commit a homicide); Atkins v. Virginia, 536 U.S. 304, 318
(2002) (holding that defendants with an IQ below 70 cannot receive
capital punishment)).
     State v. Bluff, 2002 UT 66, ¶ 66, 52 P.3d 1210 (internal quotation
   146

marks omitted).
   147   State v. Howell, 707 P.2d 115, 118 (Utah 1985).

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                           Opinion of the Court
determined, at some point, that LWOP was the presumptive
sentence. But it is not clear whether the court reached that conclusion
before or after it imposed Mr. Reece‘s sentence. In the trial court,
Mr. Reece argued that the sentencing statute was unconstitutional
because it ―does not allow a jury to decide a sentence in a first degree
felony aggravated murder case.‖ He cited Apprendi v. New Jersey,
where the Supreme Court held that ―any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.‖148
Relying on Apprendi, the trial court rejected Mr. Reece‘s
constitutional challenge in a post-trial ruling. The court concluded
that because ―the language of the statute sets forth the presumption
that the sentence of aggravated murder shall be life without parole,‖
any additional fact finding would reduce Mr. Reece‘s sentence rather
than increase it, so ―the holding in Apprendi does not apply.‖
    ¶83 The State concedes that this was an incorrect interpretation
of the statute, and we agree.149 But the State insists that ―[n]othing in
the court‘s sentencing analysis or decision demonstrates or even
implies that the court‘s mistaken interpretation influenced its
decision to impose LWOP.‖ In support, the State points out that the
court never indicated at the sentencing hearing that LWOP was the
presumptive sentence and the court explicitly stated that the ―two
options here are 25 [years] to life or life without parole.‖ It was not
until the court‘s post-trial ruling—which was issued after the
imposition of Mr. Reece‘s sentence—that the court incorrectly
interpreted the sentencing statute in addressing Mr. Reece‘s Apprendi
argument.
    ¶84 The record is simply inconclusive on this point. At the
sentencing hearing, the trial court observed that Mr. Reece did ―well
in school as a young man‖ and had ―two girls‖ in his life that he
loves—a girlfriend and a daughter. But the court ultimately
determined that based on the violent nature of the crime and Mr.
Reece‘s history of violence, ―the only way to protect people‖ was ―to
give [Mr. Reece] life without parole.‖ On its face, the court‘s analysis
appears sound—it ―considered the totality of the circumstances and

   148   530 U.S. 466, 490 (2000).
   149The aggravated murder sentencing statute does not create a
presumption in favor of imposing LWOP. The statute provides, ―The
sentence [for first degree felony aggravated murder] shall be life in
prison without parole or an indeterminate prison term of not less
than 25 years and which may be for life.‖ UTAH CODE § 76-3-207.7(2).

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                           Opinion of the Court

explicitly weighed the mitigating and aggravating factors.‖150 But the
court‘s post-trial ruling, which was issued just eight days later, states
that LWOP was the presumptive sentence. It is therefore unclear
whether the court analyzed the pertinent sentencing factors to
choose between LWOP and twenty-five years to life, or whether it
analyzed the factors to determine whether the circumstances
justified a departure from an incorrectly presumed LWOP sentence.
Consequently, we remand this question to the trial court. On
remand, the court should determine whether its incorrect reading of
the sentencing statute affected its decision to impose LWOP. If so,
then Mr. Reece‘s sentence on the aggravated murder charge must be
vacated, and the court must hold a new sentencing hearing.
                                Conclusion
    ¶85 We affirm Mr. Reece‘s convictions. The failure to issue
several lesser included offense instructions was harmless error, the
court did not abuse its discretion in limiting voir dire questioning,
the stolen rifle evidence was properly admitted under rule 404(b),
and the court did not exceed its discretion by denying Mr. Reece‘s
motion to sever the weapons charge. We also reject Mr. Reece‘s
constitutional challenges to the aggravated murder sentencing
statute because his arguments mirror those we rejected in State v.
Perea. But we agree with Mr. Reece that the trial court incorrectly
interpreted the sentencing statute as imposing a presumptive LWOP
sentence. We accordingly remand for the court to determine whether
its incorrect reading of the statute affected its decision to impose
LWOP. On remand, if the court determines that its sentencing
decision was affected by an erroneous reading of the statute, Mr.
Reece is entitled to a new sentencing hearing.




   150   See Perea, 2013 UT 68, ¶ 119.

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